Some courts adhere to the original view, though many now distinguish between unconscious and wilful wrongdoers. As the writer of an early American opinion formulated the rule:

when parties think they are doing a legal and proper act, contribution will be had; but when the parties are conscious of doing a wrong, courts will not interfere."7

Certain exceptions have been engrafted onto the rule since it was announced, so it may well be doubted whether the original statement of the rule in England can be said to be adhered to by many authorities. Those exceptions permit a recovery of contribution by the plaintiff tort feasor (a) where the liability is the result of a relation, as that of master and servant, existing between him and the defendant; (b) where the defendant was under a primary duty to prevent the injury; (c) where only the defendant was actively negligent or could have prevented the injury by the exercise of due care; (d) where the joint tort feasors were not wilful, but only negligent.

§ 182. Defenses to contribution. At common law, on the death of one joint obligor, his representatives were discharged. Therefore, the estate of a surety in a joint obligation could not

In Farwell v. Becker (1889) 129 Ill. 261, 21 N. E. 792, 6 L. R. A. 400, 16 A. S. R. 267, 270, the court said of cases denying a wrongdoer the right to recover contribution in any case: "There are other cases where the same rule has been declared, but we do not think the weight of authority sustains the doctrine that no right of contribution exists between wrongdoers as it is broadly stated in Merryweather v. Nixan, supra. Indeed, the later English cases do not, in our opinion, sustain the doctrine as it is laid down in that case."

8 Indebtedness for suggesting these exceptions so clearly is acknowledged to the writer of the note in (1921) 30 Yale Law Journal 527-528.

The reader will be repaid to consult the exhaustive review of the

under two general propositions of law: (1) "As between conscious, wilful, malicious, or intentional joint wrongdoers or tort-feasors who are in pari delicto, neither the law nor equity will intervene to adjust the damage by enforcing contribution." (2) "Even though parties are in pari delicto, contribution will be allowed for joint quasi delicts where the wrong or tort was not wilful, malicious, intentional, unlawful, or immoral."

This test was approved by the Nebraska Supreme Court: "In determining whether the right of contribution exists in favor of one wrongdoer against another the test is, must the party demanding contribution be presumed to have known that the act for which he has been compelled to respond was wrongful? If not, he may recover against one equally culpable, but otherwise he is without remedy." Johnson v. Torpy (1892) 35 Neb. 604, 53 N. W. 575, 37 A. S. R. 447, 449.

be compelled by the creditor to pay. The survivors of the jointly assumed undertaking would bear the burden.

This view is not now usually taken. The promise of the sureties, as among themselves, is several. Payment by a surviving surety, though made subsequent to the death of a co-surety, makes the latter's estate liable to pay the pro rata share of the principal's debt. The promise, as between the obligors and the obligee, is joint; as between the obligors, it is to contribute to the payments compelled from his associates.10

A release by the creditor of one surety will release the others only to the extent to which they have been deprived of the right to recover contribution.

"The rule in equity is, that when a co-surety has, by the conduct of the creditor, been released from his liability, the remaining co-surety will be exonerated only as to so much of the original debt as the discharged co-surety could have been compelled to pay, had his obligation continued."'1

That one surety purchased from the creditor the principal's note and mortgage, is not an available defense to a co-surety when sued for contribution, if it was done as a protection against loss, and not as an investment.12

§ 183. Failure of the principal to sign. Generally a surety requires a principal who is bound with him; and without a principal, there can be no valid suretyship undertaking.18 But a bond that a public official will perform his duty binds the sureties thereon, even though the principal did not sign it. By law the principal is required to discharge his official duties, and his legal obligation is not increased by signing a bond. Therefore, this differs from the situation where the surety is discharged, because the principal is not bound. The surety's undertaking

9 See Conover v. Hill et al. (1875) 76 Ill. 342.

10 Johnson v. Harvey (1881) 84 N. Y. 363, 38 Am. Rep. 515.

11 Morgan v. Smith (1877) 70 N. Y. 537, 542. See Ex parte Gifford

(1802) 6 Ves. Jr., 805, 31 Eng. Rep. Reprint 1318.

12 Fanning V. Murphy (1906) 126 Wis. 538, 105 N. W. 1056, 4 L. R. A. (N. S.) 666, 110 A. S. R. 946. 18 See Secs. 29 and 35, supra.

here rests upon the legal obligation of the principal which is not affected whether he signs a bond or not.14

§ 184. Where the paying surety is responsible for the principal's default. If the misconduct of the surety who pays the debt was the active cause of the default of the principal, he cannot recover contribution. But to prevent recovery his misconduct must be more than the remote cause of the loss. For instance, a surety, who was also attorney for the principal, and advised a loan on insecure collateral, or in a manner not authorized by law, could not maintain an action to recover from his cosureties.15 But one who was a deputy sheriff, and at the same time one of the sureties for the sheriff, was allowed to recover a share from his co-surety, although the loss which the plaintiff paid was caused by his own wrongful act as deputy sheriff, when the alleged negligence of the plaintiff was directed by the principal.16 It is doubtful whether in such case the plaintiff could have recovered had the principal directed him to do a criminal act, or one obviously inspired by malice.

The fact that the surety has encouraged the principal in irregularities by his example, not wrongful in a legal sense, but morally reprehensible, will not be a defense of which co-sureties may avail themselves in a suit to compel contribution.17

14 In the opinion in City of Deering v. Moore (1893) 86 Me. 181, 29 Atl. 988, 989, 41 A. S. R. 534 it was stated that: "The bond was conditioned that the principal should faithfully perform official duty. This he was bound by law to do, just as effectually as if he had covenanted to do it by signing the bond. The engagement of the surety, therefore, rested upon the legal obligation of the principal already incurred. It is not like the cases, often referred to, where no obligation attaches to the principal, outside of the bond itself. In those cases, the principal not being bound, it would be unjust to hold the sure

ty. Nor is it like the case of bail, where the sureties have peculiar rights flowing from the stipulation agreed to by the principal." Accord: Woodman v. Calkins (1893) 13 Mont. 363, 40 A. S. R. 449.

15 Crisfield v. Murdock (1891) 127 N. Y. 315, 27 N. E. 1046; Eshleman v. Bolenius (1891) 144 Pa. St. 269, 22 Atl. 758.

See Pile v. McCoy et al. (1897) 99 Tenn. 367, 41 S. W. 1052.

16 Block, Receiver v. Estes, Adm'r (1887) 92 Mo. 318, 4 S. W. 731. 17 Deering v. The Earl of Winchelsea et al. (1787) 2 Bosanquet & Puller 270, 126 Eng. Rep. Reprint 1276.

$ 185. Release of securities or liens. In any case where natural equity, from which the right of contribution springs, does not exist, no contribution can be recovered. It is recognized that those sharing a common burden should have the benefit of any sum intended for discharging that burden. Therefore, all co-guarantors are entitled to share in the securities given to one of their number by the principal as indemnity.18 He is trustee of it for the benefit of all who share the burden. The release of such securities by the surety holding them, without the consent of his co-sureties, will prevent him from recovering contribution to the extent of the value of the thing released.19 The appropriation of the security to his own use by a surety will have the same effect upon his right of contribution as a release.20 A surety on the bond of a public official, in a state where the filing of the bond creates a lien on all real estate of the obligor, who, by arrangement with the principal, has the funds of the latter deposited in a bank which the former controls, and is given a check by the principal on this fund which is not presented for payment, the bank in the meantime becoming insolvent, cannot enforce contribution from a co-surety. Under such a statute, a court of equity will enforce a lien upon the property of the surety for the entire amount of the principal's debt, since he is primarily liable for the funds. And the lien thus created will be preferred to the claims of a subsequent grantee or mortgagee.21

This right attaching to the securities cannot be affected, so far as a co-guarantor is concerned, by any agreement between the principal and one surety that the securities are for the sole use of the latter.2 22 But one who consents, or enters into a binding agreement with the creditor that the lien on the principal's property for the payment of the debt shall be released, cannot compel his co-sureties to contribute.23

18 Morrison v. Taylor (1852) 21 Ala. 779; Seibert et al. v. Thompson et al. (1871) 8 Kan. 53.

19 Taylor v. Morrison (1855) 26 Ala. 728, 62 Am. Dec. 747; Carpenter v. Kelly (1839) 9 Ohio 106.

20 Gilmore v. Gilmore (1897) 6 Kan. App: 922, 50 Pac. 99, 104.

21 Crisfield v. Murdock et al. (1891) 127 N. Y. 315, 27 N. E. 1046.

22 Tyus et al. v. DeJarnette et al. (1855) 26 Ala. 280.

23 Brown v. McDonald (1835) 8 Yerg. (Tenn.) 158, 29 Am. Dec. 112.