§ 69. Where one of the obligors to a joint and several obligation is sued thereon, it seems that he would not ordinarily be entitled to receive contribution for the costs of defendsurety for contribution; and it was held that he was entitled to recover a moiety of the amount he had paid. "All the parties," said Baron Parke, "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." See also Cowell v. Edwards, 2 Bos. & Pul. 268; Odlin v. Greenleaf, 3 N. H. 270.
1 Geopel v. Swinden, 13 Law Jour. (n. s.) Q. B. 113.
2 Edger v. Knapp, 6 Scott, N. R. 707; Holmes v. Williamson, 6 M. & S. 158; Hussey v. Crickitt, 3 Camp. 173; Alexander v. Vane, 1 M. & W. 511.
3 Edger v. Knapp, 6 Scott, N. R. 707.
4 Turner v. Davies, 2 Esp. 479. In this case Lord Kenyon said, " I have no doubt, that where two parties become joint sureties for a third person, if one is called upon and forced to pay the whole of the money, he has a right to call on his co-security for contribution; but where one has been induced so to become surety at the instance of the other, though he thereby renders himself liable to the person to whom the security is given, there is no pretence for saying that he shall be liable to be called upon by the person at whose request he entered into the security. This is the case here: Da-vies, the defendant, became security, at the instance of Turner, the plaintiff, to Brough; and there is still less pretext for Turner to call on the defendant in this action, as he took the precaution to secure himself by a bill of sale. I am of opinion the defendant ought to have a verdict." See also Byers v. McClanahan, 6 Gill & Johns. 256; Taylor v. Savage, 12 Mass. 98; Thomas v. Cook, 8 B. & C. 728; Robison v. Lyle, 10 Barb. 512. See post, § 1148.
5 Harris v. Warner, 13 Wend. 400.
big the claim, because he ought to have paid it at once. Yet, If there should be a clear ground of defence, it would perhaps entitle him to contribution. The authorities, however, are quite contradictory on these points, and the rule seems not to be settled.1
§70. In the next place, we come to the question of survivorship of parties. Where a contract is made by two or more persons jointly, and not jointly and severally, and one of them dies, his liability dies with him, and the survivors become alone responsible. The action upon the contract cannot therofore be brought against his representatives. Nor can the survivors, after satisfying the claim, enforce contribution against the representatives of the party who is dead.2 If all of the joint obligors die, however, the representatives of the last survivor become liable on the contract, although they have.no right of contribution against the representatives of the other parties. The same rules, also, apply in cases of joint obligees; in case of the death of one, the right of action vests solely in the survivors, and in case of the death of all, the representatives of the last survivor are alone entitled to an action.1 If the coutract he joint and several, the liability of the deceased party survives to his representatives, and may be enforced against them either by the obligee in respect to the original obligation, or by the co-obligors in an action for contribution.2
1 The rule that costs are recoverable between co-sureties was clearly held in Kemp v. Finden, 12 M. & W. 421. Baron Parke said, "They were costs incurred in a proceeding to recover a debt for which, on default of the principals, both the sureties were jointly liable, and the plaintiff having paid the whole costs, I see no reason why the defendant should not pay his proportion." The same rule was held, in Davis v. Emerson, 17 Maine, 64; and in Bonney v. Seely, 2 Wend. 481, and Cleveland v. Covington, 8 Strob. 184, a principal was held liable to his sureties for costs. The limitation that there should appear to be ground of defence, is stated in Fletcher v. Jackson, 23 Vt. 598. See also Beckley v. Munson, 22 Conn. 299. The opposite doctrine was, however, ruled by Lord Tenterden in Roach v Thompson, 4 C. & P. 194; Mood. & Malk. 487; Gillett v. Rippon, ib. 406, and Knight v. Hughes, ib. 247. See also Boardman v. Paige, 11 N. H. 431, in which it was held that where judgment was recovered against one, on a suit against all the signers of a note, there was no right of contribution, the costs not being a burden common to all the signers. See also Henry v. Goldney, 15 M. & W. 494, in which the same doctrine is stated.
2 Bac. Abr. Obligation (D.); Anderson v. Martindale, 1 East, 497; Rolls v. Yate, Yelv. 177; Tippet v. Hawkey, 3 Mod. 263; Yorks v. Peck, 14 Barb. 048; Calder v. Rutherford, 3 Br. & B. 302; Foster v. Hooper, 2 Mass. 572; Waters v. Riley, 2 Harr. & Gill, 305.
§ 71. Yet where a contract is, by its terms, solely joint, if it appear by direct proof, or if the facts of the case clearly warrant an inference, that the parties intended it to be joint and several, it will be held in equity to be joint and several, and in case of the death of one of the parties, his representatives will be held liable. The ground upon which courts of equity proceed in such cases, is, that wherever the nature of the transaction or the facts of the case plainly show that the responsibility was intended to be joint and several, the omission of terms making it so is a matter of mistake or accident, against which relief should be given.8 Every contract for a joint loan for the benefit of all the obligees will, therefore, in equity, be treated as a joint and several contract, whether the transaction be of a mercantile nature or not.4 Where, however, the inference of a joint and several liability cannot properly be made, and, a fortiori, where it is repelled by the facts of the case, a court of equity will not interfere. It will not, therefore, make a joint bond several against a mere surety, except upon positive proof that such was the agreement of the parties; and wherever the obligation or covenant is purely matter of arbitrary convention, not growing out of any antecedent liability in all or any of the obligors or covenantors to do what they have undertaken (as, for example, a bond or covenant of indemnity for the acts or debts of third persons), a court of equity will not, by implication, extend the responsibility from that of a joint to a joint and several undertaking;1 unless in cases where, through plain mistake, and contrary to their actual agreement, the parties have omitted to insert in the obligation terms rendering it several as well as joint.2
1 Ibid.; Rolls p. Yate, Yelv. 177; Anderson p. Martindale, 1 East, 497; Martin v. Crompe, Ld. Raym. 340.
2 Withers p. Bireham, 8 B. & C. 254; Shaw p. Sherwood, Cro. Eliz. 729; Towers p. Moor, 2 Vern. 99; May p. Woodward, Freeman, 248, n.
3 1 Story, Eq. Jur. § 162 to 164; Yorks p. Peck, 14 Barb. 644; Wilkinson v. Henderson, 1 Mylne & Keen, 582; Thorpe p. Jackson, 2 Younge & Coll. 553.
Weaver p. Shryock, 6 Serg. & Rawle, 262; Sumner p. Powell, 2 Mer. 30; Underhill p. Horwood, 10 Ves. 227; Ex parte Kendall, 17 Yes. 525; Cowell v. Sikes, 2 Russ. 191; Hunt p. Rousuianier's Adm'rs, 8 Wheat. 211. See also Yorks v. Peck, 14 Barb. 644.
1 Per Mr. Justice Story in 1 Story, Eq. Jur. § 164; Sumner v. Powell, 2 Mer. 30; Harrison v. Field, 2 Wash. 136; Ward v. Webber, 1 ib. 274; Richardson v. Horton, 6 Beav. 186; Burn v. Burn, 3 Ves. 573.
2 Wiser v. Blachly, 1 Johns. Ch. 607; Crosby v. Middleton, Prec. Ch. 309; Berg v. Radcliff, 6 Johns. Ch. 302; Rawstone v. Parr, 3 Russ. 424, 539.