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503. There are many other cases of contribution in which the jurisdiction of Courts of Equity is required to be exercised in order to accomplish the purposes of justice. Thus for instance in cases of a deficiency of assets to pay all debts and legacies, if any of the legatees have been paid more than their proportion before all the debts are ascertained, they may be compelled to refund and contribute in favor of the unpaid debts, at the instance of creditors, at the instance of other legatees, and in many cases, although not universally, at the instance of the executor himself.1 (a)

504. In like manner contribution lies between partners for any excess which has been paid by one partner beyond his share

1 Ante, §§ 90, 92; Jeremy on Eq. Jurisd. B. 3, Pt. 2, ch. 2, p. 364; Id. B. 3, Pt. 2, ch. 5, p. 518; Noel v. Robinson, 1 Vern. 94, and Mr. Raithby's notes, ibid.; Walcott v. Hall, 2 Bro. Ch. R. 305; Anon. 1 P. Will. 495, and Mr. Cox's note; Newman v. Barton, 2 Vern. 265, and Mr. Raithby's note; Edwards v. Freeman, 2 P. Will. 447; Hardwick v. Wynd, 1 Anst. 112; Davis v. Davis, 1 Dick. R. 32; Jewson v. Grant, 3 Swanst. R. 659; Com. Dig. Chancery, 3 V. 6. See also, on the subject of contribution, the Reporters' note to Averall v. Wade, Lloyd & Goold, Rep. 264; ante, § 492.

that there can be no resort to the security except as a means to indemnify the surety according to the terms of the instrument creating it; in the second case the security is available by the creditor as a trust for the payment of his demand. Pool v. Doster, 59 Miss. 258. This distinction is not generally taken.

If a surety make a new and an independent arrangement with the creditor in regard to the security for the debt, and put himself in the situation of a principal debtor, he cannot complain of the creditor for treating him to a certain extent in that light. An example occurs where a surety, after judgment against him, makes an arrangement with the creditor, without regard to the principal debtor, for a stay of execution, so long as he shall keep up certain policies for securing the debt, and afterwards the creditor, having taken the principal debtor in execution, discharges him without payment. Reade v. Lowndes, 23 Beav. 361.

Again if the surety has been fully indemnified by the principal, he will not be released by any new contract made with the principal debtor; the surety being now treated as a virtual co-principal. Smith v. Steele, 25 Vt. 427. And if a surety so indemnified should procure the assignment of the debt to a third person for his benefit, equity would restrain any suit by such person against a co-surety. Silvey v. Dowell, 53 Ill 260. Of course the fully indemnified surety may be compelled, by his co-surety on payment, to pay the debt. Parham v. Green, 64 N. Car. 436.

(a) If one of several heirs contribute out of the estate descended more than his proportion to pay debts of the ancestor, he will be subrogated to the rights of the creditor against his coheirs so far as may be necessary for equality. Winston v. McAlpine, 65 Ala. 377; Stallworth v. Preslar, 34 Ala. 505.

against the other partners, if upon a winding up of the partnership affairs such a balance appears in his favor; or if upon a dissolution he has been compelled to pay any sum for which he ought to be indemnified. The cases in which a recovery can be had at law by way of contribution between partners are very few, and stand upon special circumstances. The usual and indeed almost the only effectual remedy is in equity, where an account of all the partnership transactions can be taken; and the remedy to ascertain and adjust the balance is, in a just sense, plain, adequate, and complete.1 It is under the same circumstances that an action of account at the common law lies; but that, as we have already seen, is in most cases a very cumbersome, inconvenient, and tardy remedy. The same remark applies to an action of covenant on sealed articles of partnership or an action of assumpsit upon unsealed articles where there have been any breaches of the articles; for there may be many breaches of them during the continuance of the partnership which scarcely admit of adequate redress in this way.2 This subject will however hereafter present itself in a more enlarged form.3

505. Contribution also lies between joint tenants, tenants in common, and part owners of ships and other chattels for all charges and expenditures incurred for the common benefit. But it seems unnecessary to dwell upon these cases and others of a like nature, as they embrace nothing more than a plain application of principles already fully expounded. (a) We may conclude this head with the remark that the remedial justice of Courts of Equity in all cases of apportionment and contribution is so complete and so flexible in its adaptation to all the par

1 See Collyer on Partnership, ch. 8, §§ 2, 4, pp. 143, 157, 162; Gow on Partn. ch. 2, §§ 3, 4, pp. 92 to 141. See Wright v. Hunter, 1 East, R. 20; Wells v. Hubbell's Administrators, 2 John. Ch. R. 397; Wright v. Hunter, 5 Ves. 792.

2 See Duncan v. Lyon, 3 John. Ch. R. 362; Neven v. Speckerman, 12 John. R. 401; Gow on Partn. ch. 2, § 3, p. 92; Dunham v. Gillis, 8 Mass. R. 462.

(a) As to contribution between cestuis que trust, see Gardner v. Diedricks, 41 Ill. 158. Between tenants VOL. I. 34

Post, §§ 659 to 683; Story on Partn. §§ 219 to 242.

4 Com. Dig. Chancery, 3 V. 6; Rogers v. Mackenzie, 4 Ves. 752; Lingard v. Bromley, 1 V. & Beam. 114.

in common, see Calvert v. Aldrich, 99 Mass. 74; Husband v. Aldrich, 135 Mass. 317.

ticular circumstances and equities, that it has in a great measure superseded all efforts to obtain redress in any other tribunals.

506. LIENS also give rise to matters of account, and although this is not the sole or indeed the necessary ground of the interference of Courts of Equity, yet directly or incidentally it becomes a most important ingredient in the remedial justice administered by them in cases of this sort. The subject as a general head of equity jurisdiction will more properly fall under discussion in another place. But a few considerations touching matters of account involved in it may be here glanced at. A lien is not in strictness either a jus in re or a jus ad rem, but it is simply a right to possess and retain property until some charge attaching to it is paid or discharged.1 It generally exists in favor of artisans and others who have bestowed labor and services upon the property in its repair, improvement, and preservation." It has also an existence in many other cases by the usages of trade; and in maritime transactions, as in cases of salvage and general average. It is often created and sustained in equity where it is unknown at law, as in cases of the sale of lands where a lien exists for the unpaid purchase-money. It is not confined to cases of mere labor and services on the very property, or connected therewith, but it often is by the usage of trade extended to cases of a general balance of accounts in favor of factors and others.5 Now it is obvious that most of these cases must give rise to matters of account; and as no suit is maintainable at law for the property by the owner until the lien is discharged, and as the nature and amount of the lien often are involved in great uncertainty, a resort to a Court of Equity to ascertain and adjust the account seems in many cases absolutely indispensable for the purposes of justice; since if a tender were made at law it would be at the peril of the owner; and if it was

1 Brace v. Duchess of Marlborough, 2 P. Will. 491; Gilman v. Brown, 1 Mason, R. 221; Ex parte Heywood, 2 Rose, R. 355, 357; post, §§ 1215, 1216. 2 Abbott on Shipping, Pt. 2, ch. 3, §§ 1, 17; Chase v. Westmore, 5 M. & Selw. 180.

8 Abbott on Shipping, Pt. 2, ch. 3, §§ 1, 17; Pt. 3, ch. 3, § 11; Id. ch. 10, S$ 1, 2.

Sugden on Vendors, ch. 12, § 1, p. 541 (7th edit.); Id. ch. 12, § 1, vol. 2, p. 57 (9th edit.).

Paley on Agency, ch. 2, § 3; Kruger v. Wilcocks, Ambler, R. 252, and Mr. Blunt's note; Green v. Farmer, 4 Burr. 2218.

less than the amount due, he would inevitably be cast in the suit and be put to the necessity of a new litigation under more favorable circumstances. So in many cases where a lien exists upon various parcels of land, some parts of which have been afterwards sold to different purchasers, and the lien is sought to be enforced upon the lands of the purchaser, it may often become necessary to ascertain what parcels ought primarily to be subjected to the lien in exoneration of others; and a bill for this purpose, as well as for an account of the amount of the incumbrance, may be indispensable for the purposes of justice.1 Cases of pledges present a similar illustration whenever they involve indefinite and unascertained charges and accounts.

507. Let us in the next place bring together some few cases involving accounts which may arise either from privity of contract or relation, or from adverse or conflicting interests.

508. Under this head the jurisdiction of Courts of Equity in regard to RENTS AND PROFITS may properly be considered. A great variety of cases of this sort resolve themselves into matters. of account, not only when they arise from privity of contract, but also when they arise from adverse claims and titles asserted by different persons.2 Between landlord and tenant accounts often extend over a number of years where there are any special terms or stipulations in the lease requiring expenditures on one side and allowances on the other. In such cases, where there are any controverted claims, a resort to Courts of Equity is often necessary to a due adjustment of the respective rights of each party.3

509. Mr. Fonblanque asserts that Courts of Equity when resorted to for the purpose of an account of mesne profits will in many cases consult the principle of convenience, and will therefore sometimes decree it where the party has not already established his right at law. To some extent, as in cases of shareholders in real property of a peculiar nature (such as shareholders in the New River Water-works in England), he is borne

1 Skeel v. Spraker, 8 Paige, R. 182; Patty v. Pease, 8 Paige, R. 277; post, §§ 634 a, 1233 a, where the marshalling of securities and priority as to contributions is more fully considered.

2 See 1 Fonbl. Eq. B. 1, ch. 3, § 3, and note (k); Id. B. 1, ch. 1; Id. B. 1, ch. 1, § 3, note (ƒ); Bac. Abridg. Accompt, B.

O'Conner v. Spaight, 1 Sch. & Lefr. 305. See The King v. The Free Fishers of Whitstable, 7 East, R. 353, 356.

1 Fonbl. Eq. B. 1, ch. 3, § 3, note (k).

out by authority. But there is great reason to question whether the doctrine is generally admissible as a rule in equity resulting from mere convenience.1 It seems rather to result from the peculiar character of the property where there are many proprietors in the nature of partners having a common title to the profits, and therefore the whole becomes appropriately a matter of account.2

510. But another class of cases is still more frequent, arising from tortious or adverse claims and titles. Thus where a judgment creditor or a conusee of a recognizance or other statute security has had his execution levied upon the real estate of the judgment debtor or conusor, it may often be necessary to take an account of the rents and profits in order to ascertain whether, and when, the debt has been satisfied by a perception of those rents and profits. At law the tenant under an elegit is not bound to answer in account except for the extended value. But in Courts of Equity, as the elegit is a mere security for the debt, the tenant will be compelled to account for the rents and profits which he has actually received, deducting of course all reasonable charges.5

511. It is observable that in these cases of elegit there exists a privity in law, and there is an implied trust between the parties. In the ordinary cases of mesne profits, where a clear remedy exists at law, Courts of Equity will not interfere, but will leave the party to his remedy at law. Some special circumstances are therefore necessary to draw into activity the remedial interference of a Court of Equity; and when these exist it will interfere, not only in cases arising under contract, but in cases arising under direct or constructive torts. Thus for instance if a man intrudes

1 Townsend v. Ash, 3 Atk. 336. See Pulteney v. Warren, 6 Ves. 91, 92; Norton v. Frecker, 1 Atk. 524, 525.

2 Adley v. Whitstable Comp. 17 Ves. 324; Lorimer v. Lorimer, 5 Madd. R. 369.

Bac. Abridg. Accompt, B. The gradual development of equity jurisdiction in cases of tort and mesne profits arising under contracts, trusts, and torts, is well stated in Bac. Abridg. Accompt, B.

4 Yates v. Hambley, 2 Atk. 362, 363; Owen v. Griffith, Ambl. R. 520; s. c. 1 Ves. 250.

5 Owen v. Griffith, 1 Ves. 250; Yates v. Hambley, 2 Atk. 362, 363. See 3 Black. Comm. 418 to 420; Taylor v. Earl of Abingdon, Doug. R. 472; Com. Dig. Execution, C. 14.

Tilley v. Bridges, Prec. Ch. 252; 1 Eq. Abridg. 285.

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