ther shall have no demand against him for a moiety of the debt, but only for some smaller portion, he may also contract that the other shall have no demand whatsoever against him. Ibidem,

165.

In Swain v. Wall, 1 Reports in Chancery, 80, the engagement being to pay in thirds, that contract was held to take the sureties out of the principle, that would have required a moiety. See 14 Vesey, 170.

Principal and two sureties in a bond; and afterwards a fourth person becomes bound to the obligee, that if the other three did not pay, he would. One of the two sureties having paid the money, Sir John Trevor seemed to think the fourth person must contribute. Cooke v. 2 Freeman, 97. But see 14 Vesey, 166, 167.

In Dering v. Lord Winchelsea, 1 Cox, 318, and 2 Bosanquet & Puller, 270, it was admitted, that Lord Winchelsea, though liable as a surety, had by contract withdrawn himself from any liability, by virtue of which he should be charged beyond a certain amount. See 14 Vesey, 170.

Competency of surety to stipulate, that he shall be discharged from all future liability, after a specified time after notice given. See Calvert v. Gordon, 3 Manning & Ryland, 124; Gordon v. Calvert, 2 Simons, 253; S. C. 4 Russell, 581; Hough v. Warr, 1 Carrington & Payne, 151.

Parol evidence admissible to show that one surety was such Miscellaneous only in default of payment by another surety. Craythorne v. cases. Swinburne, 14 Vesey, 160.

It is not necessary that an undertaking to indemnify a cosurety should be in writing. Thomas v. Cooke, 3 Manning & Ryland, 444. S. C. 8 Barnewall & Cresswell, 728,

Where one surety has been induced to become such 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 pretence for saying, that he shall be liable to be called upon by

unde reddere possunt, ipsum onus acquietanciæ ad cæteros, vel in totum, vel in quantum ipsi defecerint, spectabit. Verum si de debitore aliquo plegiando, plegii pro certis partibus dati fuerint; quicquid de quibusdam eorum plegiorum contigerit, reliqui non nisi pro partibus suis inde respondere cogentur."Glanville, lib. 10, c. 5.

Said that for

tion between

sureties not

compellable at Custom of Lon

common law.

the person, at whose request he entered into the security. Turner v. Davies, 2 Espinasse, 478.

Formerly there lay no action for contribution between comerly contribu sureties. "Fleetwood, Serjeant et Recorder de Londres, mova, que lou un custome fuit en Londres, que si plusieurs sont obliges en un obligacion come suerties, si le principal faile de payment, issint que un des suerties soit sue sur l'obligacion, que il avera breve de contributione facienda vers l'auters suerties. Et il dit que tiel breve fuit port en Londres, et est ore remove en Bank, et pria que les justices voilont remaunder ceo en Londres, car le Common Pleas ne poit faire droit sur le dit custom: et les justices granteront lui son request."-F. Moore, 136.

don.

Proportion

which surety may recover in assumpsit.

Offley and Johnson were bound as sureties with one A. to B., who recovered against Johnson in London, and had execution against him; and now Johnson sued Offley to have of him contribution to the said execution, ut uterque eorum oneretur pro rata, according to the custom of London. Offley removed the cause by privilege into the Queen's Bench, whereupon came Johnson and prayed a procedendo; and because upon this matter no action lieth by the course of the common law, but only by custom in such city, the cause was remanded; for otherwise the plaintiff should be without remedy. Offley and Johnson's case, 2 Leonard, 166.

See Layer v. Nelson, 1 Vernon, 456.

In Rastell's Collection of Entries, 160, the above custom is thus stated: "Eò quòd secundùm consuetudinem civitatis L. à tempore cujus contrarium memoriâ hominum non existit, in civitate predictâ usitatum et approbatum, si duo, tres vel plures, sunt obligati, infrà civitatem predictam, per unam obligationem de debito, et quilibet eorum insolidus, et unus eorum solverit totale debitum tantùm, vel totale debitum sit recuperatum versùs unum de obligatis tantùm, tunc ille, qui sic solverit totale debitum, vel qui sic est condemnatus, potest prosequi versus alium vel alios secum in eâdem obligatione obligatos, per actionem debiti, conjunctim, vel divisim, ad contributionem, sic quòd quilibet eorum solvat pro ratâ suâ secundum consuetudinem dictæ civitatis."

Although it may now perhaps be found too late to hold that one of several securities in a bond, having paid it, cannot maintain an action of indebitatus assumpsit against one of the other sureties for contribution, yet at all events he shall not be entitled to recover at law more than an aliquot part of the whole

sum paid, regard being had to the number of co-sureties. Cowell v. Edwards, 2 Bosanquet & Puller, 268.

In Browne v. Lee, 6 Barnewall & Cresswell, 689, 697, Mr. Justice Bayley said that in equity indeed, 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 he thought that at law one of three co-sureties could only recover against any one of the others an aliquot proportion of the money paid, regard being had to the number of sureties. See S. C. 9 Dowling & Ryland, 701.

It is now held that a surety having paid, may maintain an action against each co-surety for a proportion. Ware v. Horwood, 14 Vesey, 28, 34.

The jurisdiction assumed by Courts of Law in modern times is convenient enough in a case simple and uncomplicated; but attended with great difficulties where the sureties are numerous; especially since it has been held that separate actions may be brought against the different sureties for their respective quotas and proportions. It is easy to foresee the multiplicity of suits to which that leads. Craythorne v. Swinburne, 14 Vesey, 160, 164.

One species of equitable actions, which have sprung up within the recollection of some of the present practitioners of Westminster Hall, are actions of assumpsit founded upon transactions between principal and sureties: but the procedure of the Courts of Common Law is very imperfectly adapted to administer full justice except in cases where the circumstances are extremely plain. Anon. V. C. July, 1824.

It was not until very modern times that the surety could bring When indebiindebitatus assumpsit even against the principal. In Toussaint tatus assumpsit v. Martinnant, 2 Term Reports, 100, 104, 105, Mr. Justice surety against first lay for Ashhurst having said that there was no doubt that wherever a principal. person gives a security by way of indemnity for another, and pays the money, the law raises an assumpsit: Mr. Justice Buller observed, that in ancient times no action could be maintained at law where a surety had paid the debt of his principal: and the first case of the kind in which the plaintiff succeeded, was before Mr. Justice Gould at Dorchester, which was decided on equitable grounds (a).

(a) This is not correct. There have been two judges of the name of Gould, the one in the reigns of William the Third and Anne,

Lord Kenyon said in Exall v. Partridge, 8 Term Reports, 308, 310, he admitted that where one person is surety for another and compellable to pay the whole debt, and he is called upon to pay, it is money paid to the use of the principal debtor, and may

the other in the reign of George the Third. The last came to the Bench in the year 1761; he was first a Baron of the Exchequer, and soon after a judge of the Common Pleas. It must be to him that Mr. Justice Buller alluded. The ensuing extract shows, that the surety had succeeded in recovering at law from the principal before the time of Mr. Justice Gould.-If a person has laid out or expended his money for the use of another at his request, the law implies a promise of repayment, and an action will lie on this assumpsit. As where a surety has paid a debt, for which he had joined another in a bond, it was held that he could maintain this action against the principal, it being money paid to his use. Decker v. Pope, Trinity Sittings, 1757, Lord Mansfield; Impey's Modern Pleader, 189. Decker v. Pope is also in Espinasse's Digest of the Law of Nisi Prius, vol. i. p. 95, edition of 1798; the author is not aware whether it is to be found in the editions of 1789 and 1793. Impey's work was published in 1794. See the same case more fully stated by Mr. Selwyn, from a MS. note in his possession, Law of Nisi Prius, vol. i. p. 77, Eighth Edition.

There is a case too, twenty-six years earlier, which seems to have escaped our text writers.

A. had recovered in the Court of Lynn against another, and when he was going to take out execution, the defendant there offered to give him a note for the money, and to get one to join in it as security with him, which was done accordingly. After this, the plaintiff in the former action commenced another action against the security and recovered: upon which the security paid the money and now brought his action against the principal for so much money laid out to his use. This matter appearing at the trial, the defendant's counsel excepted that the action would not lie; but Lord Raymond, who sat as Judge of Assize here, was of opinion that it would. Accordingly the plaintiff proceeded in his evidence. Morrice v. Redwyn, 2 Barnardiston, K. B. 26.

The books contain earlier cases in which assumpsit has been maintained by a surety against the principal debtor: but there is no doubt that in those cases there was evidence of an actual promise.

be recovered in an action against him for money paid, even though the surety did not pay the debt by the desire of the principal.

In Stirling v. Forrester, 3 Bligh, O. S. 575, 590, Lord Eldon, referring to the case of Erall v. Partridge, said that the case before Lord Kenyon was material. Formerly it was thought that the remedy was only in equity; but in that case it was held, that if one in the nature of surety paid a debt, he might bring an action against the parties liable for the debt; and until he became acquainted with that case, he thought the remedy must be in equity.

It is difficult, however, to believe that our old common law did not afford some remedy to the surety, who might have been compelled to pay the debt of his principal.

In the Great Charter there is this clause: "Si capitalis debitor defecerit in solutione debiti, non habens unde solvat, aut reddere noluerit cum possit, plegii de debito respondeant, et si voluerint, habeant terras et redditus debitoris, quousque sit eis satisfactum de debito, quod ante pro eo solverunt, nisi capitalis debitor monstraverit se inde esse quietum versus eosdem plegios."

If this clause be considered as applicable only to crown debtors, it must be regarded as placing the sureties of such debtors on the same footing as sureties of ordinary debtors.

Glanville (lib. 10, cap. 5) had before written, "Soluto vero eo, quod debetur, ab ipsis plegiis, recuperare inde poterint ad principalem debitorem, si postea habuerit unde eis satisfacere possit, per principale placitum de debitis."

"Sed si capitalis debitor defecerit," &c., " plegii tunc respondeant de debito: et habeant si voluerint terram debitoris, &c." "Et si fortè contingat, quòd plegii, ob defectum debitoris, debitum solverint creditori, vel aliter dampnum incurrant, tunc consulitur eis per hoc breve: Præcipimus tibi quod justicies A. quòd juste &c. acquietet B. de centum solidis unde posuit eum plegium versus C. et nondum eum acquietavit, ut dicit, sicut rationabiliter monstrare poterit, quòd eum acquietare debeat." Fleta, lib. 2, c. 63.

"Les plegges soient en la mercy, et eux eyent lour recover vers ceux, que ils pievirent, de ceo que eux ne les acquitent de plegage, sicome ils faire deyvent." "Le plegge eyt sa accion et son recover vers le principal dettour." Britton, cap. 28.

Question as to common law remedy for surety against principal in ancient times.

Some have said that the writ de plegiis acquietandis was Writ de plegiis grounded on Magna Charta: but the writer is disposed to think acquietandis.