4 Peter v. Rich, 1 Ch. Rep. 34; Hole v. Harrison, 1 Ch. Cas. 246; Layer v. Nelson, 1 Vern. 456. See Deering v. Earl of Winchelsea, 2 Bos. & Pul. 270; s. c. 1 Cox, 318. In Henderson v. McDuffee, 5 N. H. 38; Mills v. Hyde, 19 Vt. 59, the same rule was held in law.
5 Knight v. Hughes, 3 C. & P. 467; s. c. M. & Malk. 247; Roach v. Thompson, M. & Malk. 487; Swain v. Wall, 1 Ch. Rep. 149; Ex parte Gifford, 6 Ves. 805.
§ 1146. Each surety is entitled to his share of any sum paid by the principal to any one of his co-sureties upon the debt; and where an action is brought by one surety for contribution against his co-surety, if it appear that he has received a partial indemnity from the principal by an assignment of property, the property so assigned will be held to enure to the benefit of both sureties, and the defendant will be liable for his proportion of the debt due, after deduction thereof from the original sum.4 So, also, if, after recovery in such suit, further payment should be made to the plaintiff in reduction of the debt, he is bound to account therefor with the other surety.6
§ 1147. Where one of several joint guarantors pays the debt for which all were bound, he acquires thereby a separate right of action against the principal for whom he has paid the money, which cannot be defeated by evidence of payment to another of the guarantors.6 But if two co-sureties pay the debt out of a joint fund, their right of action is joint against the principal.1 The discharge of a surety from his principal obligation, without discharging his co-sureties, will not relieve him of his liability to them for contribution.2
1 Chaffee v. Jones, 19 Pick. 260; Pitt v. Purssord, 8 M. & W. 539; Cowell v. Edwards, 2 Bos. & Pul. 268; Odlin'v. Greenleaf, 3 N. H. 270. See ante, § 33 q and 33 r, joint and several contracts. For some purposes the debt of the principal to his surety may be said to arise when the latter agrees to become liable. See Rice v. Southgate, 16 Gray, 142 (1860).
2 Beal v. Brown, 13 Allen, 114 (1866); Cahill v. Bigelow, 18 Pick. 372.
3 Post, §1149;Bonney v. Seely, 2 Wend. 481; Cleveland v. Covington, 3 Strob. 184.
4 Bachelder v. Fiske, 17 Mass. 464.
6 Lowry v. Lumbermen's Bank, 2 W. & S. 210.
§ 1148. Where one has been induced to become a guarantor at the instance of another, who is co-guarantor with him, though he will be liable to the guarantee, he will not be liable for contribution to the person at whose request he became guarantor.3 So, if different sureties or guarantors should become bound by different instruments, for equal portions of the debt, neither would be liable to contribution to the other, if the contract of each were entirely separate and distinct from that of the other.4 But if the contract of each made a part of that of the other, the rule would be otherwise.5 So, if it be agreed between the parties that each surety shall be responsible only for a stated portion of the whole sum, the right of contribution amongst the co-sureties cannot be enforced.6 And whenever there are special words in the contract, or other circumstances showing a limitation of liability for contribution in respect to one of the sureties, he will only be responsible according to the real meaning of his contract. Thus, if one of four sureties qualify his responsibility by adding to his signature the words "surety for the above names," he will not be liable for contribution to the first surety who has paid the debt.7
1 Osborne v. Harper, 5 East, 225; Boggs v. Curtin, 10 Serg. & R. 211; Fletcher v. Jackson, 23 Vt. 593; Pearson v. Parker, 3 N. H. 366; Jewett v. Cornforth, 3 Greenl. 107. But see Gould v. Gould, 8 Cow. 168.
2 Clapp v. Rice, 15 Gray, 557 (1860).
3 Turner v. Davies, 2 Esp. 478; Thomas v. Cook, 8 B. & C. 728.
4 Coope v. Twynam, Turn. & Russ. 426; Cooke v. - , Freem. Ch.
97; Craythorne v. Swinburne, 14 Ves. 160.
5 1 Story, Eq. Jur. § 495, 498.
6 Pendlebury v. Walker, 4 Younge & Coll. 424; Burge on Suretyship, 385.
7 Harris v. Warner, 13 Wend. 400. Where several persons indorse their names on a promissory note, in order to enable the maker to get it discounted, and some of them afterwards, on the failure of the maker, pay it, they cannot maintain an action against the others for contribution, without proving that the relation between them was really that of co-sureties. But parol evidence of that fact will maintain such an action. Clapp v. Rice, 13 Gray, 403 (1859).
§ 1149. The right of contribution is not limited to the original debt, but extends to all incidental expenses and costs necessarily or reasonably incurred by the surety in consequence of the default of the principal;l and it exists between all sureties of the same degree.2 A surety cannot ordinarily recover from his co-surety contribution for the expenses of defending an action against him as surety, because it was his duty to avoid them by payment.3 Yet if it appear that there was a good apparent ground of defence, it might create an exception to this rule, particularly as the authorities are quite contradictory in respect to the liability of a co-surety to contribution for costs.
§ 1150. Where the contract of the surety is that he shall be bound only upon the default of his principal and all the other co-sureties, he will not be obliged to contribute on default of the principal only.4 An agreement, however, by the creditor, to give time to one surety, will not discharge the others from their liability to contribution.5 So it is no defence to an action for contribution between co-sureties that the plaintiff who paid the debt did not avail himself of the defence of usurj-, if he was ignorant of the fact of usury.6
1 Knight v. Hughes, 3 C. & P. 467; Theobald on Principal and Surety, p. 269, § 286; Bonney v. Seely, 2 Wend. 481; Cleveland v. Covington, 3 Strob. 184; Fletcher v. Jackson, 23 Vt. 591.
2 Deering v. Winchelsea, 2 Bos. & Pul. 270; s. c. 1 Cox, 318.
3 This was the doctrine laid down by Lord Tenterden, in Roach v. Thompson, Mood. & Malk. 487; Gillett v. Rippon, lb. 406; and Knight v. Hughes, Ib. 247; s. c. 3 C. & P. 467. The same rule was held in Boardman v. Paige, 11 N. H. 431, and in Henry v. Goldney, 15 M. & W. 494. In Fletcher v. Jackson, 23 Vt. 591, the court says: "The right of the co-sureties in such cases to compel contributions for costs and expenses incurred in defending a suit depends altogether on the question whether such a defence were made under such circumstances as to be regarded hopeful and prudent. If so, the expenses of defence may always be recovered." See, also, Marsh v. Harrington, 18 Vt. 150; Beckley v. Munson, 22 Conn. 299. The contrary rule, however, was expressly stated in Kemp v. Finden, 12 M. & W. 424; Davis v. Emerson, 17 Me. 64. In Bonney v. Seely, 2 Wend. 481, and in Cleveland v. Covington, 3 Strob. 185, it was held that a principal is liable to a surety for costs.
4 Craythorne v. Swinburne, 14 Ves. 160.
5 Dunn v. Slee, 1 J. B. Moore, 2; s. c. Holt, N. P. 399; Draper v. Weld, 13 Gray, 580 (1859).
6 Warner v. Morrison, 3 Allen, 566 (1862).
A surety may also release one of his co-sureties from contribution without barring thereby his right of action against the rest, although he may not discharge the principal debtor.1
§ 1151. The surety or guarantor, after payment of the debt, has no right to insist that the debt or instrument by which the debt is evidenced, shall be assigned to him; for such assignment would be utterly useless, inasmuch as the debt is extinguished, and the instrument is worthless as an evidence of debt, because proof of payment is a conclusive answer to any claim depending thereupon.2 So the payment of a note by the principal discharges the surety, so that the note cannot be again put into circulation against him.3
§ 1152. Co-sureties or co-guarantors are also entitled not only to contribution in respect of payments actually made by one, but they are also jointly entitled to receive the benefit of any securities which have been given to any one of them as a personal indemnification.4 In equity this doctrine is carried even further, and they are held to be entitled to all collateral securities which the guarantee or creditor may have taken, whether legal or equitable.
1 Fletcher v. Grover, 11 N. H. 368; Fletcher v. Jackson, 23 Vt. 591; Kelby v. Steel, 5 Esp. 194; Graham v. Robertson, 2 T. R. 282; Parker v. Ellis, 2 Sandf. 223; Birkley v. Presgrave, 1 East, 220.
2 Copis v. Middleton, Turn. & Russ. 224; Hodgson v. Shaw, 3 Mylne & Keen, 183; Story, Eq. Jur. § 499 b, 499 c.
3 Chapman v. Collins, 12 Cush. 163 (1853).
4 Theobald on Principal and Surety, ch. 11, § 283; Swain v. Wall, 1 Ch. R. 149; 1 Story, Eq. Jur. § 499. But a different doctrine has been held in Bowditch v. Green, 3 Met. 360; Himes v. Keller, 3 Watts & Serg. 401; Western Reserve Bank v. Commercial Bank of Lake Erie, 11 Ohio, 444.