are separate and successive.49 To make applicable the doctrine of contribution, in the absence of an express contract, the undertaking of the parties must be for some part of the same obligation. The contract of the first indorser is that if the person primarily liable fails to pay upon presentment of the instrument, and notice of dishonor is given, he will pay. The first accommodation indorser signs on the faith of the person primarily liable. The second indorsement is made on the faith in the responsibility of the maker and the first indorser. And so on with the subsequent indorsers. Their contracts are different, made with different parties, and the reason for permitting contribution is not existent. Therefore, each indorser may recover the entire sum due from any previous indorser, and not merely a contributive share.50 Under the Negotiable Instruments Law, the liability of accommodation parties is made specific.51

If the principal pays one of the accommodation indorsers with the intent that other accommodation indorsers are to share in the indemnity, then assumpsit will lie against the one receiving the payment. It will not affect the plaintiff's right to recover that the principal paid the defendant after the debt to the obligee had been satisfied.52 But if the security is given to one accommodation indorser for his benefit alone, the other accommodation indorsers cannot participate in it.53

While the acceptor of a bill of exchange is primarily liable thereon to the payee or holder, where he accepted to accommodate the drawer, he may, after

discharging the bill, compel an

50 McDonald v. Magruder (1830) 3 Peters 474; McCune v. Belt et al. (1869) 45 Mo. 174; Lancaster et al. v. Stanfield (1926) 191 N. C. 340, 132 S. E. 21.

But see Machado v. Fernandez (1887) 74 Cal. 362, 16 Pac. 19; Baumgarten V. Harding et al. (1924) 117 Kan. 59, 230 Pac. 297. 51 N. I. L., Sec. 64.

52 Shaeffer v. Clendenin (1882) 100 Pa. 565.

58 McCune v. Belt et al. (1869) 45 Mo. 174.

accommodation indorser to contribute, because each in effect was surety for the same debt of the principal.54

§ 174. Sureties on successive appeal bonds. It frequently occurs that the debtor secures sureties on separate appeal bonds from court to court. They are not co-sureties to which the principles of contribution are applicable. But these questions arise as to their rights: (a) which set of sureties is entitled to priority of subrogation? (b) does the extension of time caused by the subsequent appeals discharge the prior sureties? (c) what are the respective rights and liabilities of these sureties?

As to the first question, the Ohio Supreme Court has said:

"In regard to this question of superiority of equities, which is liable to arise in the case of prior and subsequent bonds, executed by different sureties, for distinct purposes, and both constituting securities in the hands of the creditor for the same debt, it is well settled that if the interposition of the second surety, is for the benefit of the principal alone, without the sanction or assent of the first surety, who may be prejudiced thereby; as when the effect of the second bond is to prevent the enforcement of the present payment from the principal, and thus to prolong the responsibility of the first surety; in such a case the equity of the first surety is superior, and he is entitled to be subrogated to the rights of the creditor as against the second.

"But the rule is otherwise, where the surety in the second bond becomes bound for a purpose in which both the principal and the prior surety concur, in which they both have an interest, and where the assent of the prior surety is expressly given, or is clearly to be inferred from the circumstances of the case. In such a case the last surety has a right to look for his indemnity, not only to his principal, but to such fixed securities as had been given to the creditor, when his engagement was entered into, and on the faith of which he may be presumed to have incurred his obligation."

"It is settled law that if a creditor, by valid contract with his principal debtor, without the consent of the surety, extend the time of payment, by thus tying up his own hands, and suspending his right of action, on the original contract, against the principal, he discharges the surety.

54 Reynolds v. Wheeler (1861) 10 C. B. N. S. 561.

But if the contract for extending the time be made with the assent of the surety, his liability remains unaffected. Upon a principle quite analagous to this, do the conflicting equities of prior and subsequent sureties, in cases like the present, depend. If, without the consent of the first surety, the creditor is arrested in the collection of his debt from the principal, by the interposition of a second surety, the former will be allowed, for his indemnity, to be subrogated to the rights of the creditor against the latter. But this equitable right can have no place, where the first surety assents to the second contract of suretyship; and especially where it is entered into at his instance, and for his benefit. His unqualified assent and concurrence leaves his prior liability in full force, as between the two sureties, and entitles the latter to the full right of substitution as against him.' 155

From what was said in the above opinion, it is clear that the appeal to an appellate court is not an extension of time such as will defeat the rights of an obligee against the sureties on the first bond, because it is deemed that the sureties on the first bond contemplated the possibility of an appeal by their principal, and the consequent prolongation of their liability.56

As to the rights and liabilities between the sureties on successive appeal bonds from court to court, where the first sureties have not expressly consented to the appeal, the rule has been thus stated:

"The principle in equity seems to be well established, that when successive sureties for debt have been given in judicial proceedings upon the request of the debtor alone, to enable him to prolong the litigation, whilst all will be liable directly to the creditor, they will be, as amongst themselves, liable to exoneration in the inverse order of their undertakings. That is to say, those who contract last be come sureties, not only for the benefit of the creditor, but in exoneration of those who precede, and all will be liable to exonerate the original sureties for the debt, if any there be." 57

55 Hartwell v. Smith (1864) 15 Oh. St. 200, 204-206. This opinion was quoted with approval in Dillon v. Scofield (1881) 11 Neb. 419, 9 N. W. 554. See Chase v. Welty (1881) 57 Ia. 230, 10 N. W. 648. 56 See Sec. 291, infra.

Chrisman v. Jones et al. (1879) 34 Ark. 73, 76; Becker v. The People (1896) 164 Ill. 267, 45 N. E. 500.

57 Chrisman v. Jones et al. (1879) 34 Ark. 73, 77.

Therefore, a release of the last surety on appeal will discharge sureties on prior appeal bonds, because the sureties on the last appeal bond "are primarily liable as between them and the first sureties, and it follows that the release of such later sureties by the creditor discharged the defendants, because it deprived them of a remedy over to which they would otherwise have been entitled." 58 However, when the last sureties have not been released, and their bond is insufficient to cover the obligee's loss, he may resort to the sureties on the appeal bond in the inferior court to recover any deficiency.59 Unless the sureties on the first appeal bond clearly undertake to be responsible for costs incurred in subsequent appeals, they are not liable for any of the costs except on the appeal for which their bond was given.60 But a surety who undertakes to pay a certain sum if a judgment is affirmed, remains liable, unless discharged by the act of the obligee, even though the judgment is reversed on appeal by the next higher court which in turn is reversed by another appellate tribunal, since "the judgment of

68 Hinckley v. Kreitz (1874) 58 N. Y. 583, 592.

59 In Chester et al. v. Broderick et al. (1892) 131 N. Y. 549, 30 N. E. 507, defendant's testator became bound in the sum of $7,000 on a bond on appeal to the general term to stay proceedings under a decree of foreclosure against his principal. The foreclosure decree was affirmed by the general term. Other sureties became bound for $9,000 on another bond on appeal to the Court of Appeals, which affirmed the decree of foreclosure. The land was then sold under the foreclosure decree, and there was a deficiency of about $11,500. The plaintiff recovered $9,000 from the sureties on the bond given on appeal to the Court of Appeals, and was allowed to recover the remainder of the deficiency from the sureties on the bond given on appeal to the general term, the court saying:

"The creditor has the security of the second bond and the sureties thereon are primarily liable. But the creditor has also the security of the first bond for the payment of the deficiency if it exceed the amount of the second bond, and, therefore, when such excess in fact exists, no injury is done the first sureties by obtaining the full payment of the second bond, and resorting to them for the balance up to the amount of their own bond. There is, in such event, no right of subrogation, because the security to which, under other circumstances, the first sureties might have had the right to resort, has been satisfied by the full payment thereof, and the application of the proceeds of the liability for which it was originally executed."

60 Hinckley v. Kreitz (1874) 58 N. Y. 583.

the appellate court, produced by the mandate of a higher court, has the same effect as if it had been arrived at without the interposition of such higher court."

§ 175. Right to recover contribution against a co-surety who became bound at the request of the plaintiff. For a time, the view became widely prevalent that if the plaintiff requested the defendant to become co-surety with him for the principal's debt, he could not recover contribution, on the authority of Lord Kenyon, who said:

where one has been induced so to become surety at the instance of the other, though he thereby renders himself liable to the person to whom the security is given, there is no pretense for saying that he shall be liable to be called upon by the person at whose request he entered into the security." 62

It will be noted, however, that Lord Kenyon in the next sentence adverted to the fact that the plaintiff had been indemnified by the principal, which in itself would prevent the loss from falling upon the defendant.

61 Robinson v. Plimpton (1862) 25 N. Y. 484, 488. Accord: Babbitt, Assignee v. Shields et al. (1879) 101 U. S. 7, 25 L. Ed. 820. But see Nofsinger et al. v. Hartnett (1884) 84 Mo. 549.

The same principle is followed where a case is taken by writ of error to the United States Supreme Court from a State Court. Crane et al. v. Weymouth et al. (1880) 54 Cal. 476. But see Stoll et al. v. Padley et al. (1894) 100 Mich. 404, 59 N. W. 176, where plaintiff in certiorari executed a bond with a condition that he would pay any judg