Where a co-surety has been injured by an act of the obligee, he may by a bill in equity set aside his guaranty.88

§ 178. Voluntary payment. No equitable principle will permit aid to a volunteer. Hence, a voluntary payment by a surety cannot form the basis of action to recover contribution.84 But whenever a debt is due the creditor, a surety who pays it without a suit against him, is not a volunteer. It is compulsory payment.85 But when sued for contribution, may a defendant set up that the plaintiff had an available defense against the creditor, and by omitting to make proper defense, plaintiff was a volunteer, even though judgment was had against him? An English writer said:

"I have never before heard of defenses which would be defenses by a surety against a principal creditor being attempted to be set up in a case of sureties suing a co-surety for contribution, and no authority has been cited to show that this can be done." 86

But it seems well established that payment by a surety after the statute of limitations has barred an action against the principal and sureties is voluntary, and he is without any equities to claim contribution from the other sureties.87 If the payment be made to the creditor in one state and the suit for contribution is in another, if the statute is a bar to an action in the forum, the plaintiff must clearly show that the action was not barred either against himself or the principal in the jurisdiction in which payment was made.88 Likewise, no implied assumpsit

83 Pendlebury v. Walker (1841) 4 Y. & C. 424, 160 English Reports Reprint 1072.

84 Victor Refining Co. et al. v. City National Bank of Commerce (1924) Texas Court of Civil Appeals 263 S. W. 622.

85 Fanning v. Murphy (1906) 126 Wis. 538, 105 N. W. 1056, 4 L. R. A. (N. S.) 666, 110 A. S. R. 946. See Williston on Contracts (1920) Vol. 2, Sec. 1283.

86 Greenwood et al. V. Francis

(1899) 1 Q. B. 312, 320.

87 Cochran v. Walker's Executors (1884) 82 Ky. 220, 56 Am. Rep. 891; Williston on Contracts (1920) Vol. 2, Sec. 1283.

88 Hatchett v. Pegram, Executor (1869) 21 La. Ann. 722.

But where the statute of limitations was a bar by the lex loci contractus, and a surety went to another State where it was not a bar, and judgment was recovered by the obligee in the latter State, after

against a co-surety exists where the instrument was void, and action by the creditor against the principal or any surety could not have been maintained, as where the usurious instrument was void by statute.89 But a surety who pays a note to which the defense of alteration was available for him, but not for the other sureties, may recover contribution from those who signed subsequent to the alteration.90 It is important to observe whether there is a defense to all or only a part of the sureties. If one pays a note in good faith and without negligence, ignorant of a defense which exists, he may enforce contribution against those who signed with him as co-sureties.91

A surety cannot enforce contribution, if to prevent a default by the principal he has performed the contract undertaken by the principal. Each guarantor has the right to exercise his judgment to determine whether it is preferable to perform for the principal when performance is due, or answer in damages to the obligee. By premature performance to prevent default in the principal's contract, the surety would be a volunteer, and not entitled to call upon his associates to share the debt with him.92

Where the suit is not to compel contribution, but upon an agreement by several persons "each with each and all with the others" to pay a proportionate share of a debt owed by a third party, no action can be maintained by the surety who has paid the shares of the others, unless he can show an agreement that he was to pay their proportion, or a promise by them to repay. Under such circumstances, the payment of the defendant's part would be voluntary.98

§ 179. Judgment against one surety as evidence against others. When suing to recover contribution, the judgment

paying the judgment the surety was
entitled to contribution.
His pay-
ment was compulsory. Aldrich v.
Aldrich (1883) 56 Vt. 324, 48 Am.
Rep. 791.

89 Russell v. Failor (1853) 1 Oh. St. 327, 59 Am. Dec. 631.

90 Houck v. Graham (1885) 106 Ind. 195, 6 N. E. 594, 55 Am. Rep. 727.

91 Hichborn v. Fletcher (1876) 66 Me. 209, 22 Am. Rep. 562.

92 Ladd et al. v. Chamber of Commerce (1900) 37 Oregon 544, 60 Pac. 713; petition for rehearing deried in 61 Pac. 1127, 62 Pac. 208.

93 Curtis et al. v. Parks (1880) 55 Cal. 106.

obtained by the obligee against the paying surety is prima facie evidence of the extent of his liability; and if the defendant had actual notice of the action by the creditor against the plaintiff, it is to be inferred that if there was any defense on the merits of the case, the defendant co-surety would have made it and prevented the ultimate judgment if it was unjust.94 The judgment of a foreign court against the paying surety would be entitled to the same effect.95 But if the defendant-co-surety had no notice of the suit against the plaintiff, he is not bound by the judgment against him; but may set up any defense which might have been pleaded in bar of an action on the original undertaking by the obligee against him.96

§ 180. Proportion recoverable in contribution. At law, it was early held that one surety could recover from each co-surety no more than the aliquot part of the whole amount for which each became bound originally. The presumption existed that the sureties intended to be obligated equally, and each would be required to contribute an equal share of the entire debt which was paid; but this liability, as between themselves, could be changed by special agreement.97 As Lord Eldon said in a leading case:

there is no difference if they are bound in different sums, except that contribution could not be required beyond the sums for which they had become bound." 98

If any of the sureties had become insolvent or could not be found, the earlier view was that they should all be counted in

94 Preslar v. Stallworth (1861) 37 Ala. 402; Babcock v. Carter et al. (1898) 117 Ala. 575, 23 So. 487, 488, 67 A. S. R. 193; Breckinridge v. Taylor (1837) 5 Dana (35 Ky.) 110, 115.

95 Cobb v. Haynes (1847) 8 B. Mon. (47 Ky.) 137.

96 Briggs v. Boyd (1865) 37 Vt. 534, 539.

97 Gourdin v. Trenholm (1886) 25 S. C. 362.

98 Craythorne v. Swinburne (1807) 14 Ves. Jr. 160, 33 Eng. Rep. Reprint 482. It was said by Lord Chief Justice Eyre in Deering v. Earl of Winchelsea et al. (1787) 2 Bosanquet & Puller 270, which Lord Eldon argued, that "there is no difficulty in ascertaining the proportions in which the parties ought to contribute. The penalties of the bonds ascertain the proportions." ""

computing the sum recoverable from the remaining solvent sureties. For example, if there were six sureties, one having since become insolvent, and another one paid the entire debt due from the principal, the amount of contribution he could recover would be one-sixth.99 But in equity, it was decided in the first reported cases that the insolvent sureties should be excluded, and the paying surety might recover the entire from those who were solvent.100 If the sole object of the bill in equity is to recover contribution, the insolvent sureties are not necessary parties.1

The reason for the difference between the attitude of courts of law and equity is that the former looks at the implied contract of the original parties, which is that each surety engages to contribute according to the original number of sureties, without reference to the solvency or insolvency of any, while a court of chancery applies the principle that "equality is equity." In some jurisdictions, the courts still adhere to the original view, and exclude or include the insolvent sureties, depending upon whether the action' is at law or in equity. But in most of

99 Cowell, (1800) 2 Bosanquet & Puller 268, 126 Eng. Rep. Reprint 1275; Batard v. Hawes (1853) 2 Ellis & Blackburn 287, 118 Eng. Rep. Reprint 775.

Adm'r V. Edwards

100 Peter v. Rich (1629) 1 Ch. Cases 34. Bayley, J., stated in his opinion in Browne v. Lee (1827) 6 B. & C. 689, 697, 108 English Reports Reprint 604, that: "In equity, indeed, in the case of Peter v. Rich . . ., where one of three sureties had paid a sum of money, it was held, that he was entitled to recover one moiety from another of the co-sureties, the third having become insolvent; but I think, that at law, one of three co-sureties can only recover against any one of the others an aliquot proportion of the money paid, regard being to the number of sureties." Stewart, Executrix v. Goulden (1883) 52 Mich. 143.

1 Johnson's Adm'rs v. Vaughn (1872) 65 Ill. 425, 428; Gross v. Davis (1888) 87 Tenn. 226, 11 S. W. 92, 10 A. S. R. 635.

2 Trego v. Cunningham's Estate (1915) 267 Ill. 367, 108 N. E. 350, 352.

8 Powell v. Matthis et al. (1843) 4 Ired. (N. C.) 83, 40 Am. Dec. 427; Gross v. Davis (1889) 87 Tenn. 226, 11 S. W. 92, 10 A. S. R. 635; Weimer, Wright & Watkins v. Talbot et al. (1904) 56 W. Va. 257, 49 S. E. 372, 374.

It was said in Sloo, Adm'r v. Pool (1853) 15 Ill. 47: "And he (the surety, at law) can only recover from one an aliquot proportion of the debt, to be ascertained by the number of sureties, without regard to their solvency. But in equity, relief is granted between sureties on the principle of equality applicable to a common risk; and if one of them is insolvent, the loss is apportioned among the others."

the states, the equitable rule, excluding all insolvent and nonresident co-sureties, is adopted, whether the question arises in a law or equity court:

"It is held in this state, and generally, that insolvency of one or more of the co-sureties is regarded in actions at law for contribution, and that the share to be recovered by one who has paid the whole debt is determined by the number of solvent sureties; and it has been held by other courts that removal from the state is, for this purpose, equivalent to insolvency."

§ 181. Contribution between joint tort feasors. The earlier cases both in England and America took the position that no contribution would be permitted between joint tort feasors, where one had been compelled to respond for damages done another, whether the injury was the result of negligence or wilfulness. The reason for this view was doubtless the desire to adhere to the maxim, in pari delicto, potior est conditio de