Where two or more persons are jointly, or jointly and severally, bound to pay a sum of money, and one or more of them pay the whole, or more than his or their share, and thereby relieve the others so far from their liability, those paying may recover from those not paying, the aliquot proportion which they ought to pay. (c) Some things have been said about this * right to * 32

(x) Kemp v. Andrews, Carth. 171; Hall v. Huffam, 2 Lev. 228.

(y) May v. Woodward, Freem. 248; Enys v. Donnithorne, 2 Bur. 1190.

(z) Peaslee v. Breed, 10 N. H. 489; Batchelder v. Fiske, 17 Mass. 464.

(a) Rolls v. Yate, Yelv. 177; Anderson v. Martindale, 1 East, 497; Stowell's Admr. v. Drake, .3 Zabr. 310.

(b) Shaw v. Sherwood, Cro. E. 729.

(c) Harbert's Case, 13 Rep. 13 a, 15 b; Layer v. Nelson, 1 Vern. 456; Toussaint v Martinnant, 2 T. R. 104; Kemp v. Fin-den, 12 M. & W. 421; Browne v. Lee, 6 B. & C. 689; Sadler 0. Nixon, 5 B. & Ad. 936; Holmes v. Williamson, 6 M. & Sel. 159; Blackett v. Weir, 5 B. & C. 387; Lanchester v. Tricker, 1 Bing. 201; Boulter v. Peplow, 9 C. B. 193; Wood v. Leland, 1 Met. 387; Aspinwall v. Sachhi, 57 N. Y. 331. In Offley and Johnson's ease, 2 Leon. 166 [1584], the Court of King's Bench held that one surety had no right at common law to recover contribution from a co-surety. "The first case of the kind in which the plaintiff succeeded was before Gould, J., at Dorchester." Butter, J., 2 T. R. 105. - The action for money paid to recover contribution is founded upon the old writ de contributione facienda.

Tindal, C. J., Edger v. Knapp, 5 Man. & G. 758, citing Fitzherbert's Natura Bre-vium, 378, in the edition of 1794, p. 162. From the passage in Fitzherbert, as the English version is amended by the learned reporter of Edger v. Knapp, 5 Man. & G. 758, 759, it seems that a parcener distrained upon is entitled to contribution without any express agreement on the part of her coparceners, while to entitle a joint feoffee to contribution, under similar circumstances, the other feoffees must have agreed to contribute. In analogy to the case of feoffees, one partner, in order to entitle himself to recover contribution of his copartner, is bound to show a contract independent of the relation of partner: Tindal, C. J., 5 Man. & G. 759. It is not sufficient for him to show that the payment made on account of bis copartners was made by compulsion of law. Sadler v. Nixon, 5 B. & Ad. 936. - In contribution, in the preceding section; we add that the persons not paying, but being relieved from a positive liability by the payment of others who were bound with them, are held by the law as under an implied promise to contribute each his share to make up the whole sum paid. (d) And this rule applies equally to those who are bound as original co-contractors, and to those who are bound to pay the debt of another or answer for his default, as co-sureties. (e) The payment, to establish a claim for contribution, must be compulsory. Hence, if one of many who must pay a certain debt might show if sued that he was bound to pay only a certain proportion and could defend himself against a further claim, his payment of more than his share gives him no claim for contribution. (f) But this does not mean that there must be a suit, but only a fixed and positive obligation.(g) The law requires no one to wait for a suit, if he has no defence; and not always, even if he has a defence.(h)1 And if he resists a suit in which he has no sufficient defence, he cannot, generally, recover from the party for whom he pays, the costs of this suit. (i) And where a

Hunter v. Hunt, 1 C. B. 300, plaintiff and defendant respectively were under-lessees, at distinct rents, of separate portions of premises, the whole of which were held under one original lease, at an entire rent. Plaintiff, having paid the whole under a threat of distress, brought an action against defendant to recover the proportion of rent due from him, as for money paid to his use. Held, that the action was not maintainable. See Springer v. Springer, 43 Penn. St. R. 518.

(d) Contribution was at first enforced only in equity, and Lord Eldon regretted (not without reason, in the opinion of Baron Parke, 6 M. & W. 168), that courts of law ever assumed jurisdiction of the subject. It is universally admitted that the duty of contribution originates in the equitable consideration that those who have assumed a common burden ought to bear it equally; from this equitable obligation the law implies a contract, since all who have become jointly liable may reasonably be considered as mutually contracting among themselves with reference to the duty in conscience. Lord Eldon, Craythorne v. Swinburne, 14 Ves. 160, 169 (adopting the view taken by Romilly arguendo); Campbell v. Mesier, 4 Johns. Ch. 334; Lansdale v. Cox, 7 Monr. 401; Fletcher v. Grover, 11 N. H. 368; Johnson v. Johnson, 11 Mass. 359; Chaffee v. Jones, 19 Pick. 264; Horbach v. Elder, 18 Penn. 33; Powers v. Nash, 37 Me. 322; Holmes v. Weed, 19 Barb. 128; Yates v. Donaldson, 5 Md. 389. - Assumpsit for money paid is the usual action for enforcing contribution, and its propriety, before taken for granted, was confirmed in Kemp v. Finden, 12 M. & W. 421.

(e) The payee of a note, given by the defendant's testator as principal, neglected to present it to the executor within two years after the original grant of administration, and was by statute barred of his action against him. The plaintiff who signed the note as surety was held not to be discharged by the creditor's neglect to present his claim, and having paid the note was entitled to recover the amount of the executor. Sibley v. McAllaster, 8 N. H. 389. See also Chipman v. Morrill, 20 Cal. 130. Bachelder v. Fiske, 17 Mass. 464, was perhaps the earliest case where the executor of a deceased co-debtor was held liable at law for contribution. The court there met the technical objections that were raised, with the maxim, Ubi jus ibi remedium. And see McKenna v. George, 2 Rich. Eq. 15; Riddle v. Bowman, 7 Foster (N. H.) 236.