use.

may recover it back in an action for money paid to the other's A partner compelled to pay a note executed in the partnership name by a copartner for his private debt, recovered back the amount from that copartner, as money paid to his use. Cross v. Cheshire, 7 W. H. & G. 45, 6 Eng. Law & Eq. 517.

There is a case in Roll's Abr. where a party met to dine at a tavern, and after dinner all but one of them went away without paying their quota of the reckoning; and it was holden that he might recover from the others their aliquot proportions. 8 T. R. 614.

So in any case where two parties are jointly liable for a debt, if one of them pays the whole, he may recover a moiety of the debt, as so much paid at the defendant's request. Harris v. Harris, 2 Rand. 437.

In a joint contract for the benefit of all, each takes upon himself the liability to pay the whole debt, consisting of the shares which each co-contractor ought to pay as between themselves; and each, in effect, takes upon himself a liability for each to the extent of the amount of his share. Each therefore may be considered as becoming liable for the share of each one of his co-contractors, at the request of such cocontractor; and on being obliged to pay such share, a request to pay it is implied as against the party who ought to have paid it, and who is relieved from paying what, as between himself and the party who pays, he ought himself to have paid, according to the original arrangement. Batard v. Hawes, 2 El. & Black. 296, 75 Eng. Com. Law Rep. 296; 20 Eng. Law & Eq. 143.

When a surety becomes liable for his principal and at his request, the law implies a promise by the principal to the surety to repay the latter all the money he may be compelled to pay, in consequence of such liability. The surety qua surety cannot maintain an action against his principal unti! he has paid the money. But when he has paid it, he may maintain an action for the money paid. Taylor v. Mills &c. Cowp. 525; Paul v. Jones, 1 T. R. 599; Toussaint &c. v. Martinnant, 2 Id. 100; Powell v. Smith, 8 Johns. 250; Appleton &c. v. Bascom &c. 3 Metcalf 171; Batard v. Hawes, 2 El. & Black. 296; 75 Eng. Com. Law Rep. 296; 20 Eng. Law & Eq. 143. It matters not that the payment, at the time the surety makes it, is not by the desire of the principal; it is enough that there was a request of the principal, either express or implied, at the time the liability was incurred for him. 8 T. R. 310; Batard v. Hawes, 2 El. & Black. 296; 75 Eng. Com. Law Rep. 296; 20 Eng. Law & Eq. 143;

ante, 1 Rob. Pract. 491. It has been held in Massachusetts, that the fact of a note being for money loaned on a usurious contract, would not preclude a surety therein from recovering the amount paid by him to discharge it, if he had no knowledge of that fact before he made the payment. Ford v. Keith, 1 Mass. 139. If the statute of limitations would have been no defence to the principal in a proceeding against him by the creditor, the fact that it might have been a defence to the surety, it has been held, will not prevent him from recovering against the principal. Shaw &c. v. Loud, 12 Mass. 447.

A surety sued for a debt, and thereby put to expense, has been allowed to recover such expense against the principal, Ex parte Marshall &c. 1 Atk. 262; that is, the legal costs of the suit, Wynn v. Brooke &c. 5 Rawle 109.

With respect to the right of contribution, there is a clear distinction between a joint judgment against several defendants in assumpsit, and a recovery against two in tort. In the latter case, one wrong-doer can maintain no action against the other, on the mere ground that he alone paid the money recovered against the two. Merryweather v. Nixan, 8 T. R. 186. This decision does not affect a case of indemnity where one man employs another to do an act not unlawful in itself, for the purpose of asserting a right. See ante, p. 300.

4. Action by a surety against a co-surety for contribution.

The right and duty of contribution is founded in equity. 3 Bligh 590. The doctrine which at one time prevailed, that if the sureties became bound by separate instruments, there should be no contribution, has been exploded. Mayhew v. Crickett &c. 2 Swanst. 189. Whether sureties are bound jointly, or jointly and severally-whether they are bound by the same instrument or different instruments-if they have a common interest and a common burthen, one surety may compel another to contribute to that burthen. Thomas Deering entered into three bonds, each in the penalty of £ 4000, with a condition which he broke. In one of the bonds the plaintiff was surety, in another Lord Winchelsea, and in the third Sir John Rous. There being judgment against the plaintiff for a balance of £ 3888. 14. 83., Lord Winchelsea and Sir John Rous were decreed to contribute in equal shares to the payment thereof; the three were considered in æquali jure. Deering v. Earl of Winchelsea &c. 2 Bos. & Pul. 270; 14 Ves. 165; Harris v. Ferguson, 2 Bailey 400. Of course contribution cannot be required from any one beyond the sum for which he became bound. 14 Ves. 169. Nor can it be

required at all unless the parties alleged to be co-sureties are sureties for the same debt or duty. 5 Leigh 417; Langford's ex'or v. Perrin, 5 Leigh 552.

The principle of equity being established, a contract may be inferred upon the implied knowledge of that principle by all persons; and it must be upon such a ground of implied assumpsit, that in modern times courts of law have assumed a jurisdiction upon this subject; a jurisdiction convenient enough in a case simple and uncomplicated, but which may be attended with difficulty where the sureties are numerous. 14 Ves. 164..

The law on this subject was laid down in Davies v. Humphreys, 6 M. & W. 168, 9. Where there is a joint or joint and several liability by three persons, of whom two are sureties, it is not necessary for a surety to delay payment until an action is commenced against him; he may pay the debt and bring an action against his co-surety for contribution, without shewing that he paid it by compulsion. Pitt v. Purssord, 8 M. & W. 538; Craig v. Craig, 5 Rawle 98. It is not necessary to bring a special action on the implied contract of indemnity; an action will lie for money paid. Kemp v. Finden, 12 M. & W. 421.

In Massachusetts it has long been settled that the payment of a debt by one of two sureties raises a promise in law on the part of the other to pay his moiety, on which promise an action can be maintained. Johnson v. Johnson, 11 Mass. 361; Taylor v. Savage, 12 Id. 98; Bachelder v. Fiske &c. 17 Id. 468.

In North Carolina the remedy between co-sureties was in equity only, until the act of 1807, which gives a less expensive and more expeditious remedy by action, in addition to that given in equity. It has been held under that act, that it cannot be extended to the complicated case of the insolvency of one or more of the sureties, when they exceed two, but that it restricts the recovery to an aliquot part of the debt, according to the number of the sureties. Powell v. Matthis, 4 Iredell 83.

Generally in the other states, as in England, the rule is acted on as one of common law, that one of two or more joint or joint and several sureties, who is forced to pay more than an aliquot proportion of the debt, having regard to the number of sureties, may maintain an action for contribution against a co-surety. 2 Esp. 478; Cowell v. Edwards, 2 Bos. & Pul. 268; Lowry v. Lumbermen's Bank, 2 W. & S. 215; Aiken v. Peay, 5 Strobhart 18.

The rule in Peter v. Rich, 1 Ch. Rep. 34, as to the extent to which there may be a recovery against a cosurety, whatever may be the understanding of it in equity, (Swain v. Wall, 1 Ch. Rep. 80,) does not prevail at law. Cowell v. Edwards, 2 Bos. & Pul. 268. It has been adjudged at law, that one of three co-sureties can only recover against another of them, an aliquot proportion of the money paid, having regard to the number of sureties; it was so adjudged, notwithstanding there was a third surety, who had become insolvent. Brown v. Lee, 6 Barn. & Cress. 689; 13 Eng. Com. Law Rep. 294; 2 El. & Black. 297.

The court of queen's bench was pressed with the dictum of Lord Eldon in Craythorne v. Swinburne, 14 Ves. 164, referred to by Parke, B., in Kemp v. Finden, 12 M. & W. 421, 424, and in Davies v. Humphreys, 6 M. & W. 153, 168, as to the action of contribution being founded rather upon a principle of equity than upon contract. But after entertaining considerable doubt on the subject, the court came to the conclusion that the rule most in conformity with the authorities, the principles of law and the convenience of the case, is to look to the number of original co-contractors for the purpose of determining the aliquot part which each contributor is to pay. 2 El. & Black. 299, 75 Eng. Com. Law Rep. 299. In the case wherein this opinion was pronounced, it appeared that the plaintiff, the defendant and ten other persons having jointly employed an engineer to do certain work, the plaintiff was sued by the engineer and obliged to pay his bill; whereupon the plaintiff brought an action to recover from the defendant his share. Of the twelve joint contractors, two had died before the payment by the plaintiff the defendant paid into court a sum sufficient to cover one twelfth but not sufficient to cover one tenth of what the plaintiff had paid. The question thus arose, whether the amount to be recovered by the plaintiff, was to be calculated according to the number of original joint contractors or according to the number of those who were alive when the payment was made and against whom the right of the creditor to sue at law had survived? The court held that the defendant discharged himself by paying into court a sum sufficient to cover the amount due in proportion to the number of the original contractors. Batard v. Hawes, 2 El. & Black. 296, 75 Eng. Com. Law Rep. 296.

From what the surety pays in discharge of the debt there must first be deducted what the surety has received from the principal on account of the debt; and then he will recover from a co-surety a due proportion of the residue. Knight v. Hughes, 3 C. & P. 467, 14 Eng. Com. Law Rep. 393; Ba

chelder v. Fisk &c. 17 Mass. 464; Moore v. Moore, 4 Dev. 358; Gregory v. Murrell, 2 Iredell Eq. 333; Kerns v. Chambers, 3 ld. 577; Fagan v. Jacocks, 4 Dev. 263; Hall v. Robinson, 8 Iredell 60. In this case the principal put money into the hands of one surety and sold effects of a certain value to the other; and they engaged to pay those several amounts on the debt for which they were bound: pro tanto one surety could not recover from the other.

A surety who sells property received from the principal for his security and acknowledges that he has in his hands funds to discharge the debt, is under a legal liability to pay it. If while that liability exists, the other surety is compelled to pay the debt, an action for what he pays will lie on his behalf against the one who had the funds and failed properly to ap ply them. Draughan v. Bunting, 9 Iredell 13.

Lord Tenterden would not allow the surety to recover from a co-surety any of the costs incurred in the suit brought by the creditor against the surety. Knight v. Hughes, 3 C. & P. 467, 14 Eng. Com. Law Rep. 393. But where judgment was entered up against two sureties, the surety who paid the whole costs of this proceeding recovered one half thereof from a co-surety. Kemp v. Finden, 12 M. & W. 421.

Such are the rules where the parties do in fact stand in the relation of co-sureties. It may be that one apparently the surety was in fact the real debtor, 12 Mass. 102; that there is a right to treat him as a principal and another as his surety, Baxter v. Moore, 5 Leigh 219. There may, as between the joint contractors, be an arrangement or understanding that one of them, though liable to the creditor is not to be liable as between the sureties to pay any portion of the debt; in such case, clearly no action could be maintained against him by the other. Turner v. Davies, 2 Esp. 478; 2 El. & Black. 297; 75 Eng. Com. Law Rep. 297. If, for example, it appear that the creditor had required an additional security and the last signer became such at the request of the previous surety, who took from the principal a bill of sale for his security, that previous surety cannot maintain the action for contribution against the last signer. Turner v. Davies, 2 Esp. 478. The party may by special engagement contract so as to exempt himself from a liability, which, without such special engagement, he would be under. The true ground is, whether it was the intention and understanding that the party should be bound as co-surety; or only if the other does not pay that is, as surety for the surety; not as co-surety with him. The latter was the case in Craythorne v. Swinburne, 14 Ves. 170, where as between Sir John Swinburne and the other two