The surviving surety on a joint administration bond, on account of which he was compelled to make large payments, sought to recover contribution from the representatives of a deceased co-surety, it was held, that in the case of a joint bond, the remedy at law survives against the surviving obligor, and is lost against the representatives of him who dies first; that where all the obligors are principals, equity will enforce contribution though the remedy at law is gone, but in case of a surety it will not interfere to charge him beyond his legal liability in the absence of fraud, accident, or mistake; that although a surety who has paid the debt may compel his living co-surety to con. tribute, he has no such right either at law or m equity, against the estate of a deceased co-surety, because the liability of the creditor was terminated by his death and cannot be indirectly revived. Waters v. Riley, 2 Har. & G. 305. But see the able dissenting opinion of Archer, J.

(/) Lucas ». Jefferson Ins. Co., 6 Cow. C35. See also Mutual Safety Ins. Co v. Hone, 2 Comst. 235; Webster's Appeal, 86 Pa. 409.

(g) Pitt v. Purssord, 8 M. & W. 538; Maydew v. Forrester, 5 Taunt. 615; Davies v. Humphreys, 6 M. & W. 153; Lord Kenyan, Child v. Morley, 8 T. R. 614; Frith v. Sprague, 14 Mass. 455; Russell v. Failor, 1 O. St. 327; Hichborn v. Fletcher, 66 Me. 209; Mason v. Pierron, 69 Wis. 585.

(h) It has been held that a surety paying when he had a good defence, which defence, however, was not available to the principal, if he had been sued by the creditor, may recover of the principal. Shaw v. Loud, 12 Mass. 461.

(i) Whether contribution can be recovered for the costs of a suit sustained in resisting payment, is left in doubt by the authorities. Lord Tenterden ruled against contribution for costs in Roach v. Thompson, Mo. & M. 489; Gillet v. Rip-pon, id. 406; Knight v. Hughes, id. 247; in the latter case intimating that there might be a distinction between a case be-tween two sureties (the case before him) and a case of surety against principal. But in Kemp v. Finden, 12 M. & W. 421, where the plaintiff and defendant had executed as sureties a warrant of attorney, given as collateral security for a sum of money advanced on mortgage to the principals, and on default being made by the principals, judgment was entered up on the warrant of attorney, and execution issued against the plaintiff, it was held that he was entitled to recover from the defendant as his co-surety a moiety of the costs of such execution. Parke, B., said: "They were costs incurred in a proceeding to recover a debt for which, on default of the principals, both the sure-ties were jointly liable; and the plaintiff having paid the whole costs, I see no reason why the defendant should not pay his proportion."- A surety to a note was subjected to costs in consequence of its non-payment by the principal; there was an agreement in writing to save him harmless held, that he was entitled to recover the costs so paid by him in an action against the principal. Bonney v. Seely, 2 Wend. 481. In Cleveland v. Covington, 3 Strob. L. 184, it was held that as a general rule a principal was liable for costs incurred by the surety, and was therefore incompetent as a witness in an action against him. Where a judgment, recovered against an insolvent principal, and his two sureties, was paid by one of them, held, that he could recover of his co-surety one half of the costs. Davis v. Emerson, 17 Me. 64. And in Fletcher v. Jackson, 23 Vt. 593, the right of a co-surety to recover costs and expenses is said to depend altogether upon the question whether the defence was made under such circumstances as to be regarded as hopeful and prudent; if so, the expenses of defence may always be recovered. So in Security Ins. Co. v. St. Paul, etc. Ins. Co., 50 Conn. 233; Gross v. Davis, 87 Tenn. 226. And see Van Winkle v. Johnson, 11 Or. 469. - But not

1 Ordinarily if a surety fails to avail himself of a good defence against the creditor he cannot recover contribution from a co-surety. Russell v. Failor, 1 Ohio St. '527; Aldrich v. Aldrich, 56 Vt. 324, 327. But he can recover if the co-surety was liable to the creditor for the full amount. Houck v. Graham, 106 Ind. 195.

So if the surety was ignorant of the facts constituting his defence, and paid in good faith, be may have contribution. Hichborn v. Fletcher, 66 Me. 209.

If, however, such payment is made with full knowledge of the facts, the surety will not be entitled to contribution because he was ignorant of the legal effect of those facts. Bancroft v. Abbott, 3 Allen, 524.

It has been held that a surety who has paid a claim to which he had no defence, could not recover contribution from a co-surety, if the latter had a good defence to an action by the creditor. Cochran v. Walker, 82 Ky. 220. But this seems erroneous, and is against the weight of authority. Camp v. Bostwick, 20 Ohio St. 337; Stark v. Carroll, 66 Tex 393; Aldrich v. Aldrich, 56 Vt. 324; Liddell v. Wiswell, 59 Vt. 365. And see p. infra.

contract is broken, the surety may * pay without suit and hold the principal, and a co-surety may pay and hold the co-sureties to contribution. (j) And the right to contribution arises although the co-surety paid the debt after giving a bond for it without the knowledge of the co-sureties. (k)

If a plaintiff in an action ex contractu recovers judgment and takes out an execution, a defendant upon satisfying the execution makes out a claim for contribution against other parties, by showing either that such parties were co-defendants in the action, or that they were jointly liable in fact for the debt which was surety's aliquot part, calculated upon the whole number, without reference to the insolvency of others of the co-sureties; (n) but in equity it is otherwise. (o) made a cause of action against him alone. (/) But * in the latter case the joint liability must not be a liability as copartners. (m)