1 Craythorne v. Swinburne, 14 Ves. 162; Parsons v. Briddock, 2 Vern. 608; Wright v. Morley, 11 Ves. 12; 1 Story, Eq. Jur. § 459 a to § 459 g, § 499, 3d ed.; Copis v. Middleton, Turn. & Russ. 224; Hodgson v. Shaw, 3 Mylne & K. 183; Mathews v. Aikin, 1 Comst. 595. If a surety purchases a note without the intention to pay and discharge it, an action may be maintained upon it for the benefit of the real plaintiff in the name of the payee. Rockingham Bank v. Claggett, 9 Foster, 292 (1854), citing and approving Elliot v. Abbot, 12 N. H. 549; Low v. Blodgett, 1 Foster, 121; Cross v Rowe, 2 Foster, 77; Edgerly v. Emerson, 3 Foster, 555.
2 Cottin v. Blane, 2 Anst. 544; Wright v. Nutt, 3 Bro. C. C. 326; s.C. 1 H. B. 137; Wright v. Simpson, 6 Ves. 734.
3 Cottin v. Blane, 2 Anst. 544.
4 Bardwell v. Lydall, 7 Bing. 489.
§ 1143. If the guarantee, having authority to compromise his claim, make any secret or underhand arrangement with the principal, at variance with the terms of his contract, in order to secure to himself some private advantage, it is considered as a fraud upon the guarantor, which renders the whole transaction void.2
§ 1144. If there be several co-guarantors, and one of them, on the default of the principal, pay the whole debt, or more than his proportion of it, he may recover for such excess above his proper share.3 It was formerly questioned whether, at law, where one surety or guarantor has paid the whole debt of the principal, he could claim contribution against his co-sureties or co-guarantors, unless there were some positive agreement to that effect. But it is now well established that he may claim contribution in such cases, both in law and in equity.4 Nor does it matter, in this respect, whether the sureties are jointly and severally bound or only severally, nor whether they are bound by the same instrument or by different instruments, nor whether they know of each other's engagements or not, provided their obligations be in respect of the identical debt.1 This doctrine stands upon the equitable ground that the payment of the same debt by one surety enures to the benefit of all. Where there are several sureties, each must contribute his ratable proportion of the loss, if there be any.2 But at law this share is to be calculated according to the whole number of sureties, whether solvent or insolvent, while in equity the shares are to be divided among the solvent parties only. If, therefore, there be three sureties, and one of them be insolvent, and a second pay the whole debt, at law he can only recover from the third his proportional share, that is, one-third of the debt.3 But in equity he would recover one moiety.4 When a surety is reimbursed in part, either by the debtor or by a counter security, he must deduct such sum from his claim for contribution upon his co-sureties.5
1 Ex parte Rushforth, 10 Ves. 409; Paley v. Field, 12 Ves. 435.
2 Cecil v. Plaistow, 1 Anst. 202; Leicester v;. Rose, 4 East, 372; Cock-shott v. Bennett, 2 T. R. 763.
3 If two persons sign the same obligation as sureties for a third, one of them at the request of the principal and the other at the request of the first surety, they are not co-sureties as between themselves; but the first surety stands in the relation of principal to the second, is responsible to him for whatever he may be compelled to pay, and has in no event any claim against him for contribution. Cutter v. Emery, 37 N. H. 567 (1859), citing and approving Pickering v. Marsh. 7 X. II. 192. "Where all the stockholders of a corporation execute and deliver to a creditor thereof their joint and several promissory note for money loaned to and used by the corporation, as between themselves they are co-sureties for the company, and one of their number, paying the note when it became due, may call upon his co-sureties for equal contributions as makers of the note; and their liability is not to be measured by iheir relative amounts of stock in such corporation. Coburn v. Wheelock, 34 N. Y. 440 (1868).
4 Story, Eq. Jur. § 495; Bachelder v. Fiske, 17 Mass. 464; Kemp v. Finden, 12 M. & W. 423; Cowell v. Edwards, 2 Bos. & Pul 268; Browne v. Lee, 6 B. & C. 689; Davies v. Humphries, 6 M. & W. 153.
§ 1145. A surety is not bound to wait until suit is brought or judgment rendered before he pays the debt. But whenever the original contract is broken, so that the surety becomes legally and positively liable, he may pay, and his co-sureties will be bound to make contribution.1 A surety or guarantor who is only verbally bound for the debtor may nevertheless pay it, even though against the will of the principal, and recover the amount of the latter.2 If, however, suit be brought against him, he may recover of the principal all necessary costs and expenses.3
1 Deering v. Winchelsea, 2 B. & P. 270; Mayhew v. Crickett, 2 Swanst. 185; Norton v. Coons, 3 Denio, 130; Chaffee v. Jones, 19 Pick. 260; Kemp v. Finden, 12 M. & W. 421; Burnell v. Minot, 4 Moore, 342; Davies v. Humphries, 6 M. & W. 153; Sison v. Kidman, 4 Scott, N. R. 429; Edger v. Knapp, 6 Scott, N. R. 707; Pitt v. Purssord, 8 M. & W. 539; Warner v. Morrison, 3 Allen, 566 (1862); Bachelder v. Fiske, 17 Mass. 468. See Armitage v. Pulver, 37 N. Y. 494 (1868).
2 Ex parte Gifford, 6 Ves. 805; Turner v. Davies, 2 Esp. 478; Thomas v. Cook, 8 B. & C. 728; Stirling v. Forrester, 3 Bligh, 590, 591; Mayhew v. Crickett, 2 Swanst, 185; Burge on Suretyship, 383; Deering v. Winchelsea, 2 Bos. & Pul. 270; Pendlebury v. Walker, 4 Younge & Coll. 424.
3 Cowell v. Edwards, 2 Bos. & Pul. 268; Browne v. Lee, 9 D. & R. 700; s. c. 6 B. & C. 697; Rogers v. Mackenzie, 4 Ves. 752; Chaffee v. Jones, 19 Pick. 265. A surety on a bail bond, who has compromised his liability with the obligee, and taken an assignment of the judgment recovered by the obligee against the other surety, in scire facias on the bond, can recover, in an action against his co-surety on such judgment, only half of the amount of that judgment. Kelly v. Page, 7 Gray, 213 (1856).