the assent of the surety, and precludes himself from suing upon the original obligation for the original debt, the surety is discharged.(y) So if a new contract is substituted in the place of the original contract, or if the original contract is altered in any material point so as to constitute a new agreement, varying substantially from the former, the surety is no longer bound. (2) "The surety," observes Pothier, "is discharged by novation of the debt, (ante, 312-317,) for he can no longer be bound for the first debt for which he was a surety, since it no longer subsists, having been extinguished by the novation; neither can he be bound for the new debt, into which the first has been converted, since this new debt is not the debt for which he became bound."(a)

If a man becomes surety for the payment of a debt, secured by the bond of the debtor payable at a given day, and the creditor by an indorsement on the bond under seal, extends the time of payment, this is a material variation amounting to the substitution of a new engagement, in the place of the original contract. The surety is not a surety for the performance of the new engagement, but for the fulfilment of the first contract, with the more limited credit, and that contract being extinguished and the original liability gone by reason of the alteration of the security, the surety is forthwith discharged.(b)

Any enlargement of the time of payment by a binding contract which ties up the hands of the creditor, and prevents him from suing the principal debtor upon the original obligation, discharges the surety, inasmuch as the situation of the surety is varied and his liability prolonged beyond what was originally contemplated. (c) But mere laches, or forbearance, or an omission on the part of the creditor, promisee, or obligee, to press the debtor or party liable, and sue him for the money as soon as it becomes due, without any suspension of the usual remedies, will not discharge the surety, unless it is provided by the contract that the creditor shall proceed without delay, and do his utmost to obtain the money.(d) Nor will a parol agreement to enlarge the time of payment discharge the surety when

(y) Orme v. Young, Holt, N. P. C. 84.; Ex parte Glendinning, Buck 517.

(2) Whitcher v Hall, 5 B & C. 277; Barke v. Parker, 1 T. R. 290, 295.

(a) Pothier, (OBLIGATIONS,) No. 378. So by the civil law Novatione legitime perfectâ in aliam speciem translati, prioris contractus fidejussores vel mandatorès liberatos esse non ambigitur, si modo in sequenti se non obligaverint. Cod. lib. 8, tit. 41, lex. 4.

(b) Rees v. Berrington, 2 Ves. 542; Whitcher v. Hall, 5 B. & C. 277.

(c) Combe v. Woolf, 8 Bing. 162, 1 M. & Sc. 241, s. c.; Eyre v. Bartrop, 3 Mad. 221; Nisbet v. Smith, 2 Br. C. C. 578; Rees v.. Berrington, 2 Ves. jun. 539 a; Ex parte Smith, 3 Br. C. C. 1; Law v. E. I. Company, 4 Ves. 824.

(d) Muskett v. Rogers, 5 Bing, N. C. 728, 8 Sc. 51, s. c.; Holl v. Hadley, 2 Ad. & E. 758; Orme v. Young, Holt 84.; Lond. Ass. Comp. v.

the principal obligation is under seal, inasmuch as such parol agreement cannot in any way alter or affect the legal operation of the deed, or restrict or suspend the right of action thereon; neither will the acceptance by the creditor of a collateral security from the principal debtor operate as a discharge of the surety, if the position of the latter has in nowise been altered or varied thereby ; (e) nor will the surety be discharged if he himself has agreed or assented to the indulgence given to the principal, or has expressly consented and agreed to remain liable after the discharge of the latter.(f)

In the French law, and also in the civil law, an enlargement of the time given to the principal creditor for payment does not discharge the principal. "When," observes Pothier, "the creditor, after the contract has been entered into, accords, through liberality, a certain term of payment to his debtor, he cannot lawfully exclude the sureties from a participation in the benefit of such term; for as the agreement has the effect of qualifying the liability upon the principal obligation, and extending the term of payment, the obligation of the sureties necessarily receives the same modification; and they have the same term of payment as the principal debtor, it being the essence of the contract of suretyship, that the surety should not be obliged to more than the principal."(g)

There is greater reason for the continuance of the liability of the surety in the foreign law, notwithstanding the extension of the time of payment to the principal debtor, inasmuch as the surety has the power of securing himself from loss by issuing an attachment on the goods of the principal debtor in case of the apprehended insolvency of the latter.

SECTION II.

INDEMNIFICATION OF THE SURETY-LIABILITY OF THE PRINCIPAL AND OF CO-SURETIES INTER SE.

Liability of the PRINCIPAL.-When the engagement of the surety with the creditor is made with the knowledge and consent of the principal deb

Buckle, 4 Moore, 153; Goring v. Edmonds, 6
Bing. 94.

(e) Twopenny v. Young, 3 B. & C. 210; Bell v. Banks, 3 Sc. N. R. 503.

(f) Smith v. Winter, 4 M. & W. 454; Cow

per v. Smith, 4 ib. 519; Harden v. Clifton, 1 Ad. & E., N. s. 522; Boultbee v. Stubbs, 18 Ves. 26.

(g) Pothier, (OBLIGATIONS,) No. 381.

tor, there is in point of law an implied request from the latter to the surety to intervene on his, the principal's behalf; and if the principal makes default in payment of the debt, or the performance of the contract, at the time appointed, or as soon as his liability arises, there is an implied mandate, or authority, from the principal to the surety to pay the debt or satisfy and discharge the claim that has arisen, and money paid by the surety for that purpose is money paid for the use of the principal at his request, and the surety may maintain an action against the principal, as previously mentioned, to reimburse himself the amount so paid. (h)

The moment the principal makes default, the surety may step in and discharge the liability, and have recourse to the principal for reimbursement. He need not wait for the commencement of an action, or the issue of legal process, (ante, 230,) but he cannot, of course, accelerate the liability of the principal, and if he pays money voluntarily before the time of payment arrives, or after the principal obligation has been discharged when he was not under any legal obligation to pay, he has no ground of action against the principal.

So by the French law, "whether the surety has paid in consequence of a judgment of a court of law, or voluntarily and without legal process, is a matter of no moment, for in either case, utiliter debitoris negotium gerit; he has procured his discharge from the debt, and ought consequently to be reimbursed what it cost him to do so. But, if he has paid before the time of payment has elapsed, he cannot have recourse against the principal debtor until afterwards, for he ought not by his own act to deprive the latter of the term of indulgence which he has a right to enjoy.(i)

The surety may, by express contract with the principal debtor, obtain a right to sue the latter before he has himself paid or satisfied the principal obligation. If the principal, for example, covenants with the surety that he will pay the creditor the debt by a day named, and makes default, the surety may sue him for the amount although he has not himself at the time he brings the action paid any portion of the debt.(k)

By the law of France, and by the civil law, the surety is under no necessity for securing to himself this right by express contract, for whenever the principal debtor falls into embarrassed circumstances, and is threatened with insolvency, that law accords to the surety a right to attach the goods and chattels of the principal debtor, and so provide himself with funds beforehand to answer the engagement he has entered into on his behalf.(/)

(h) Ante, 210, 227, 228, 230. Se quid autem fidejussor pro reo solverit, ejus recuperandi causa habet cum eo mandati judicium. Instit. lib. 3, tit. 21, § 6.

(i) Pothier, (OBLIGATIONS,) No. 431, 439;

Dig. lib, 17. tit. 1, lex. 22.

(k) Loosemore v. Radford, 9 M. & W. 657. (1) Pothier, (OBLIGATIONS,) No. 442. Cod. lib. 4, tit. 35, lex 10.

If the surety has bound himself for the payment of a debt due from several joint debtors, and has been compelled to pay money on their joint account, they are jointly responsible to him for the repayment of the amount.(m)

Of the LIABILITIES of Co-SURETIES inter se.

Contribution between co-sureties.-It has previously been stated that if several persons together become surety for one principal in respect of the same debt and transaction, either jointly or severally, or by the same or different contracts, and one of such co-sureties, after the liability of the principal has arisen, pays the debt, or satisfies the whole debt, or claim, or more than his own proportion of it, he may have recourse to his co-sureties for contribution, and recover from them their several proportions of the common liability in an action for money paid by him for their use. (n) Thus, where the plaintiff and defendant, together with the principal debtor, signed a joint and several promissory note, payable two months after date, as sureties for such principal debtor, and the latter paid only a portion of the amount of the note on its becoming due, and the plaintiff then paid the residue, although no demand had been made upon him by the creditor for payment, and subsequently brought his action against the defendant, his co-surety, for contribution; it was held that he was entitled to recover a moiety of the amount he had paid. “All the parties," observed Parke, B., were jointly and severally liable to the holders of the note, and as all were liable, one party who has paid the note, may bring an action against his co surety for contribution without showing that he had paid it by compulsion." (o)

66

The principle of contribution amongst sureties is admitted by the law of France, as well as by our own law. It has been established by the French jurists, observes Pothier, upon a principle of equity, which does not permit the co-sureties, who were all equally liable to the payment, and have all been equally benefited by the discharge of the principal obligation, to profit at the expense of him by whom the payment has been made, and who has acted for the benefit of his co-sureties a tthe same time that he was acting for the benefit of himself. (p)

(m) Post, ch. 29.; Pothier, (OBLIGATIONS,) No. 440.

(n) Ante, 210, 227; Kemp v. Finden, 12 M. & W. 421; Ex parte Gifford, 6 Ves. 807.

(0) Parke, B., Pitt v. Purssford, 8 M. & W. 539; Sison v. Kidman, 4 Sc. N. R. 429.

(p) Ayant quant à l'effet gèrè l'affaire de ses

cofidejusseurs, en même temps qu'il faisait la sienne, les ayant par la paiement qu'il a fait libérés d'une dette qui leur etait commune avec lui, l'equité exige qu'ils portent leur part de ce paiement, dont ils ont profité autant que lui." Pothier, (OBLIGATIONS,) NO. 445, Argentrè, 213, art. 194.

G G

The civil law, on the other hand, does not admit the principle of contribution between co-sureties, (q) but enables each of them, before action brought, to protect himself from being sued for more than his own share. The rule on this point is thus expounded in the third book of the Institutes: "Where there are several sureties, they are each, whatever may be their number, bound in solidum, and the creditor is at liberty to demand the whole debt from any one of them. But, by a decree of the Emperor Hadrian, the creditor may be obliged to sue each surety who is solvent at the time he commences his action for the share of such surety pro rata; and if any of the sureties are insolvent the burthen then falls upon the rest. But if the creditor shall have sued for, and recovered his whole demand from one of the sureties alone, the whole loss shall fall upon such surety, if the principal is insolvent; and he has no one to blame for this loss but himself, since he might have availed himself of the Emperor Hadrian's decree, and have prayed that the action should not be permitted to be brought against him for more than his individual share of the debt."(r)

(9) Solius rei principalis, non alter alterius negotium gerit. Dig. lib. 46., tit. 1. lex 39.

(r) Instit. lib. 3, tit. 21, § 4. Dig. lib. 46, tit. 1. Cod. lib. 8, tit. 41.