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of principal, and a further sum in respect of the arrears of interest, such obligee was allowed interest only on the sum paid on account of the principal money due upon the bond, but not on the payments made on account of interest (r); for as the obligee in the first bond, could not have claimed against the obligor's interest on the interest due, so neither could the obligee in the second bond, claim more against his obligor, than the original obligee could have done, though it is difficult to contend, that the estate of the second obligee would be fully indemnified, without allowing interest on all sums paid by such obligee, whether for principal or for interest.

Nor can a surety claim contribution from his cosureties, for the costs of defending an action brought against him by the creditor (y), unless the co-sureties had authorized him to defend the action (x); for the surety, upon being applied to by the creditor, and having no defence, should have paid the debt demanded of him, by which the costs would not have been incurred : but it seems he would be entitled to a proportion of the costs of the writ (a).

Nor can a surety claim the costs of defending an action by the creditor, merely because he had received an indemniíy from his co-sureties (b).

III. When the right to contribution is lost, or affected.

The demand which a surety has against his cosureties for contribution, after payment to the creditor of the principal debt, should be prosecuted

(2) Rigby v. M‘Namara, supra.

(y) Gillet v. Rippon, Mood. & M. 406 ; Knight v. Hughes, Mood. & M. 247; S. C. 3 Car. & P. 467; and see Roach v. Thompson, Mood. & M. 487; and Bleaden v. Charles,

7 Bing. 246.

(2) Knight v. Hughes, supra. (a) Gillet v.

Rippon, Mood. & M. 406.

(6) Gillet v. Rippon, supra.

within the same time as a simple contract debt, or it will be barred by the Statute of Limitations (c).

Where a suit has been instituted for contribution, if during the interval between filing the bill, and procuring the decree, any of the funds of the principal, or of the sureties, should have been lost, on account of the laches of the plaintiff in not having prosecuted his suit with proper effect, it seems that his claim for contribution would be affected to the extent to which the sureties, against whom relief is sought, may have suffered in consequence of such laches or neglect (d). But after a decree has been pronounced, no objection can be made on the ground of laches, since all parties are equally capable of prosecuting the suit (e).

A co-surety who has paid the debt will not be deprived of his right to contribution as against the others, although in a moral point of view, he might have been the cause of the loss, which had fallen upon the sureties; as where he encouraged the principal in irregularities, and particularly in gaming, which had ruined him, and had done this, knowing the principal's fortune to be such, that he could not support himself in his extravagancies, and faithfully account for the monies received by him, and for which the sureties had become responsible ; for in order to work a disability in such co-surety, to support his demand for contribution, general depravity is not sufficient, it must be pointed to the act upon which the loss arises, and must be in a legal sense the cause of the loss (S).

Nor is a surety in a bond deprived of his right to contribution against his co-sureties, in a case where the surety, who having been called upon to pay,

(c) 21 Jac. 1, c. 16.

(d) See the observations of Lord Chancellor Hart, in Onge v. Truelock, 2 Moll. 31.

(e) Onge v. Truelock, supra.

() Deering v. The Earl of Winchelsea, 2 Bos. & P. 270 ; S. C. i Cox, 318.

discharges the bond, in which he and his co-sureties were bound, with money borrowed upon the credit of his own personal security (g); or where, before he had so paid the money,

money, time for payment had been given to him, at his request, by the creditor, without the knowledge of his co-sureties (h).

A surety's right to contribution against a cosurety, who has become bankrupt and obtained his certificate, depends upon the question, whether at the time of the bankruptcy there was any debt due from the bankrupt surety to his co-surety, in respect of which, the latter could have proved under the fiat: if there were such a debt, and the co-surety omit to prove it, and the bankrupt surety obtain his certificate, the co-surety's right to contribution is lost (i). The 52nd section of the late statute 6 Geo. 4, c. 16, has been held not to extend to a case between two sureties (j), so that if one surety become bankrupt, and after the bankruptcy, another surety be called upon by the creditor, and pay the debt, the co-surety paying has a demand for contribution against the bankrupt surety, although such bankrupt surety may have obtained his certificate (k): : and the surety paying is not deprived of this right in a case where the sureties, together with the principal, bound themselves jointly and severally in a bond in a penalty, and a forfeiture had accrued previously to the bankruptcy of the surety(1); for non constat the sureties would ever be called upon to pay any thing.

IV. The remedies for enforcing contribution. The remedy for enforcing contribution, is either(9) Swain v. Wall, i Ch. Rep. 774; Browne v. Lee, 6 B. & Cress. 149.

689. (h) Dunn v. Slee, Holt, N. P. C. (1) Ex parte Porter, supra ; 399; S. C. 1 J. B. Moo. 2. Clements v. Langley, supra. (i) Clements v. Langley, 5 B. &

(k) Clements v. Langley, supra ; Ad. 372; ex parte Porter, 2 Mont. Browne v. Lee, supra. & Ay. 281 ; S. C. 4 Deac. & Ch. (1) Clements v. Langley, supra.

1st. By action at law; or 2ndly. By bill in equity.

1st. Contribution by action at law, is a modern proceeding (m) (5), and is only adapted to a case which is simple and uncomplicated (n), for where there are several sureties, separate actions must be brought against each individual, by the one who has paid the debt, to which they ought all to contribute(o).

The principle upon which contribution at law is founded, is, that one pays that to which all are liable; if therefore any of the co-sureties become insolvent, only an aliquot part of the whole, regard being had to the number of co-sureties, can be recovered against a solvent co-surety, by a co-surety who has paid the debt (p). So if the co-sureties oblige themselves for the payment of the debt of their principal, they must be bound in the same penalty; for where the penalties are distinct, one obligor by the payment of the whole debt, would not have paid any penalty, to which another was liable (q).

(m) See the observations of 1 East, 220; and Lord Eldon's Best, J., in Collins v. Prosser, observation in The East India 1 B. & Cress. 682; of Lord El. Company v. Boddam, 9 Ves. 464. don, C., in Craythorne v. Swin- (o) Cowell v. Edwards, 2 Bos. burne, 14 Ves. 160; and of Sir & P. 268; and see Craythorne v. R. P. Arden, M. R., in Wright v. Swinburne, 14 Ves. 160; and Lord Hunter, 5 Ves. 792.

Eldon's judgment in Ware v. (n) Per Lord Eldon, C., in Horwood, 14 Ves. 28. Craythorne v. Swinburne, 14 Ves. (p) Collins v. Prosser, i B. & 160; and see Lord Kenyon's ob- Cress. 682. servation in Birkley v. Presgrave, (q) Collins v. Prosser, supra.

(5) It seems that contribution at law, was formerly not allowed. In Wormleighton and Hunter's case, reported in Godb. 243, two men were bound with J. S., as sureties in an obligation. One of the sureties was sued upon the bond, and the whole penalty recovered against him. He exhibited an English bill in the Court of Requests against the defendant (being the other surety), to have contribution, and it was moved to the Court for a prohibition to the Court of Requests, and the same was granted; because (as it is there stated), by entering into the obligation, it became the debt of each of them, jointly and severally, and the obligee had his election to sue which of them he pleased, and take forth execution against him: and the Court said,

156

Rights of Sureties against each Other. 2ndly. A bill in equity prevents a multiplicity of actions (r), and is necessary where the surety desires a discovery for the purpose of ascertaining who are the co-sureties (s), and by what instruments they became responsible(t), and to what amount(u), with a view to contribution :-or where great intricacy in the accounts exists, which requires that they should be unravelled in a court of equity (v) or where there is a difficulty in ascertaining the quantum of contribution, which each surety is to contribute (w):-or where the subject-matter of the security is joint, but each of the sureties is bound in distinct, and several penalties(r) or where any of the co-sureties have become insolvent, and the solvent co-sureties are required to contribute rateably to the payment of the whole debt (y).

Where a decree is made against sureties, for the payment of the debt of the principal, leave will be given to the defendants the sureties, to prosecute the decree against each other for contribution, if any should be forced to pay more than his proportionate part (2).

(r) Per Lord Eldon, C., in Cray- (v) Craythorne v. Swinburne, thorne v. Swinburne, 14 Ves. 160; supra. and per Sir R. P. Arden, M. R., in (w) See the observation of LawWright v. Hunter, 5 Ves. 792; rence, J., in Birkley v. Presgrave, and see Cowell v. Edwards, 2 Bos. 1 East, 220. & P. 268 ; and Lord Eldon's ob- (2) Collins v. Prosser, 1 B. & servations in Underhill v. Hor- Cress. 682. wood, 10 Ves. 209.

(y) Peter v. Rich, 1 Ch. Rep. (s) Craythorne v. Swinburne, 34; Hole v. Harrison, i Ch. Ca.

and see Cowell v. Edwards, (t) Craythorne v. Swinburne, 2 Bos. & P. 268 ; Browne y. Lee, supra.

6 B. & Cress.' 689. (u) Craythorne v. Swinburne, (z) Greerside v. Benson, 3 Atk. supra.

253, in notis.

supra.

246;

that if one should have contribution against the other, it would be a great cause of suits, and therefore the prohibition was awarded; and so it was said it was lately adjudged and granted, in the like case, in Sir Wm. Whorwood's case.

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