Question 435.— A joint and several promissory note is made by three promissors, one signing as surety, the other two being the debtors. The surety has to pay the note; can he not recover from either of the other promissors?

Answer.—We think that under the circumstances mentioned he is entitled to bring suit against either of the other promissors on the theory that as he was surety for their joint and several debt, which he has had to pay, they must jointly or severally reimburse him.

Where there is in force an Act similar to " The Mercantile Amendment Act" of Ontario, the surety in such a case gets all the rights of the prior holders against those who ought to pay the note, and the note is not to be deemed to be discharged by the surety's payment. (See section 1, cap. 145, Rev. Stats. Ont.) In the absence of statutory provision of this kind the promissors, even if he was in reality a surety only, and his remedy would not be on the note, but would rest on the common law respecting sureties.