§ 642. But, although Courts of Equity will thus administer relief to parties in cases of double funds, which are the original contract. The debtor, as the Civil Law truly observes in another place, (Dig. Lib. 17, 1, 22, 1,) has an interest not to be compelled to pay before the day; and yet I perceive, that several writers on the Civil Law (Domat. Part 1, (B.) 3, tit, 4, § 3, art. 3; Wood's Institutes of the Civil Law, p. 227; Brown's Lectures on the Civil Law, vol. 1, 362,) refer to this very text to prove, that if the surety be in peril, he may sue before the time of payment, to be indemnified or discharged. It may be so, but these writers refer to no other text but that already cited, and that certainly does not, by any necessary interpretation, warrant the doctrine. Indeed, it seems to preclude it; because the remedy was intended, or provided, (and so it is expressed,) especially for the case of a surety, who could not conveniently discharge the debt himself, and have his regular recourse over, at once, by the action mandatum. It was a benevolent provision, in that view, and just in no other. In other parts of the Pandects, (Dig. Lib. 17, 1, 22, 1, and Lib. 46, 1, 31,) Paul and Ulpian lay down a rule, in respect to sureties, in perfect accordance with the construction I have ventured to adopt ; for they say, that if the surety pays before the day, he cannot have recourse over to the debtor, until the day of payment has arrived. A number of civilians, who have very fully discussed the rights and remedies of sureties under the civil law, and always with this text of Marcellus in view, give us no intimation of such a doctrine. The general rule of the Civil Law was, that the action by the surety against his principal, depended upon his having paid the creditor. (Inst. Lib. 3, 21, 6, and Ferriere's Inst. h. t.) And the cases in which he might have recourse over, before payment, were all special cases; as where judgment had already passed against the surety, or the debtor was in failing circumstances, or such a recourse over was part of the original contract, or the debtor had neglected a long time, as from three to ten years, to pay, or the creditor to demand. In all these excepted cases, the surety might sue the debtor for his indemnity or discharge. But when might he sue him? Not before the debt was due and payable to the creditor, but before the surety had paid the creditor. The authorities to which I now refer, (Hub. Prælec. lib. 3, tit. 21; De Fide Jussoribus, 11; Voet. ad Pand. lib. 46, tit. 1, 34, Pothier, Traité des Oblig. n. 441, Ersk. Inst. B. 3, c. 65,) all consider these exceptions as only providing for the relief of the surety, ante solutionem. He may sue the principal debtor before he has actually paid the debt; and the exceptions were to relieve him from that burden; for without one of these special causes, says the code, there would be no foundation, before payment, for the action of mandatum. (Nulla juris ratione, antequam satis creditori pro ea feceris, eam ad solutionem urgeri, certum est. Code 4, 35, 10.) This plain and equitable principle, that until the debtor is in default, either in his contract with the creditor, or in his contract with the surety, he is not bound to pay or indemnify, seems to pervade equally every part of the civil law. Pothier says, (ubi sup. n, 442,) that if the obligation, to which the surety has acceded, must, from its nature, exist a long time, as if he was surety for the due execution of a trust, he cannot, within the time, sue the principal debtor or trustee for his discharge, for he knew, or ought to have known, the nature of the obligation he contracted. Though where he is surety indefinitely, as for payment of an annuity, he may, after a long time, as, say ten years, demand that the principal debtor liberate him by redeeming the annuity."

subject to the same debt; and will, in favour of sureties, marshal the securities for their benefit; yet this will be so done only in cases where no injustice is done to the common debtor; for then other equities may intervene. And the interposition always supposes that the parties seeking aid are creditors of the same common debtor; for if they are not, they are not entitled to have the funds marshalled, in order to leave a larger dividend out of one fund for those who can claim only against that. This principle may be easily illustrated by supposing the case of a joint debt due to one creditor by two persons, and a several debt due by one of them to another creditor. In such a case, if the joint creditor obtains a judgment against the joint debtors, and the several creditor obtains a subsequent judgment against his own several debtor, a Court of Equity will not compel the joint creditor to resort to the funds of one of the joint creditors, so as to leave the second judgment in full force against the funds of the other several (596) debtor. At least it will not do so, unless it should appear that the debt, though joint in form, ought to be paid by one of the debtors only; or there should be some other supervening equity.1

§ 643. Another case has been put of a similar nature by Lord Eldon. "We have gone this length" (said he). "If A. has a right to go upon two funds, and B. upon one, having both the same debtor, A. shall take payment from that fund, to which he can resort exclusively, that by those means of distribution both may be paid. That takes place where both are creditors of the same person, and have demands against funds, the property of the same person. But it was never said, that if I have a demand against A. and B., a creditor of B. shall compel me to go against A. without more; as if B. himself could insist that A. ought to pay in the first instance, as in the ordinary case of drawer and acceptor, or principal and surety, to the intent that all obligations arising out of these complicated relations may

1 Dorr v. Shaw, 4 John. Ch. R. 17, 20.

be satisfied. But if I have a demand against both, the creditors of B. have no right to compel me to seek payment from A., if not founded in some equity, giving B. the right for his own sake, to compel me to seek payment from A.”1

§ 644. Upon this ground, where there was a partnership of five persons, one of whom died, and the other four partners continued the partnership, and afterwards became bankrupt, and the creditors of the four surviving partners sought to have the debts of the five paid out of the assets of the deceased partner, so that the dividend of the estate of the four bankrupts (597) might be thereby increased in favour of their exclusive creditors; without showing that the assets of the deceased partner ought, as between the partners, to pay those debts; or that there was any other equity to justify the claim; the Court refused the relief. On that occasion the Lord Chancellor said, that even if it was clear that the creditors of the five partners could go against the separate assets of the deceased partner, (which of course depended upon equitable circumstances, as the legal remedy was against the survivors only); yet, if it was not clear that the survivors had a right to turn the creditors of the five against those assets, it did not advance the claim, that without such arrangement the creditors of the four would get less. Unless the latter could establish that it is just and equitable, that the estate of the deceased partner should pay in the first instance, they had no right to compel a creditor to go against that estate, who had a right of resort to both funds. Indeed, there might exist an opposite equity; that of compelling the creditor to go first against the property of the survivors, before resorting to the estate of the deceased partner.3

§645. The ground of all these decisions is the same general doctrine already suggested, though the application of that doctrine is necessarily varied by the circumstances.

1 Ex parte Kendall, 17 Ves. 520.

2 Lord Eldon in ex parte Kendall, 17 Ves. 520.

3 Ibid.

Where a creditor has a right to resort to two persons, who are his joint and several debtors, he is not compellable to yield up his remedy against either; since he has a right to stand upon the letter and spirit of his contract, unless some supervening equity changes or modifies his rights. (598) If each debtor is equally bound in equity and justice for the debt, as is the case with joint debtors or partners, where both have had the full benefit of the debt, the interference of a Court of Equity, to change the responsibility from both debtors or partners to one, would seem to be utterly without any principle to support it, unless there was a duty in one of the debtors or partners to pay the debt in discharge of the other. And if this be so, a fortiori, the creditors of one of the debtors, or partners, cannot be entitled to such interference for their own benefit; for they can in no just sense, in such a case, work out any right, except through the equity of the debtor or partner, under whom their title is derived.

CHAPTER XIV.

PARTITION.

646. ANOTHER head of concurrent jurisdiction is that of PARTITION in cases of real estate, held by joint tenants, tenants in common, and coparceners. It is not easy, as has been well observed by Mr. Fonblanque, to trace back or establish the origin of any branch of equitable jurisdiction.' But the jurisdiction of Courts of Equity in cases of partition is beyond question very ancient. It is curious enough to observe the terms of apparent indignation with

1 Fonbl. Eq. B. 1, ch. 1, § 3, note (ƒ); Miller v. Warmington, 1 Jac. & Walk. 473.

1

which Mr. Hargrave has spoken of this jurisdiction, as if it were not only new, but a clear usurpation. Yet he admits its existence and practical exercise, as early as the reign of Queen Elizabeth; a period so remote, that at least one half of the law, which is at present, by way of distinction, called the Common Law, and regulates the rights of property, and the operation of contracts, and especially of commercial contracts, has had its origin since that time. "A new and compulsory mode of partition (says Mr. Hargrave) has sprung up, and is now fully established; namely, by decree of Chancery, exercising its equitable jurisdiction on a bill filed, praying for a partition; in which it is usual for the Court to issue a commission for the purpose to various persons, who proceed without a jury. How far this branch of equitable jurisdiction, so trenching upon the writ of partition, and wresting from a Court of Common Law its ancient exclusive jurisdiction of this subject, might be traced by examining the records of Chancery, I know not. But the earliest instance of a bill of partition, I observe, to be noticed in the printed Books, is a case of the 48th Elizabeth, in Tothill's Transactions of Chancery, title, Partition.2 According to this short report of the case, the Court interfered from necessity, in respect to the minority of one of the parties, the book expressing, that, on that account he could not be made a party to a writ of partition; which reason seems very inaccurate; for, if Lord Coke is right, that writ doth lie against an infant, and he shall not have his age in it, and after judgment he is bound by the partition.3 But probably in Lord Coke's time this was a rare and rather unsettled mode of compelling partition; for, I observe, in a case in Chancery of the 6th Car. I., which was referred to the Judges on a point of law between two coparceners, that the Judges certified for issuing a writ of partition between

1 See Mr. Fonblanque's Remarks on the passage, 1 Fonbl. Eq. B. 1, ch. 1,

§ 3, note (ƒ).

2

Spake v. Walton, &c., (a) Tothill's Trans. 155 (edit. 1649).

3 Co. Litt. 171 b.