Eldon [and Sir William Grant] [It was] decided in Ex parte Rushforth, 10 Vesey, 420, and Butcher v. Churchill, 14 Vesey, 567. Those cases [were not decided] upon particular grounds of equity between the parties. In Ex parte Rushforth Lord Eldon lays it down as what he considers to be the rule of the Court, that where a surety gets rid of and discharges an obligation at a less sum than its full amount, he cannot, as against his principal, make himself a creditor for the whole amount; but can only claim as against his principal what he has actually paid in discharge of the common obligation. Reed v. Norris, 2 Mylne & Craig, 361, 374-376.

Marshalling in If a party has two funds-not applying now to assets particufavour of surety. larly-another party having an interest in one only, has a right in equity to compel the former party to resort to the other, if this is necessary for the satisfaction of both. If the Court did not compel this, it is clear that it is purely matter of the former's will whether the latter shall be paid or not. So in the case of a surety; it is not by force of the contract, but that equity, upon which it is considered against conscience, that the holder of the securities should use them to the prejudice of the surety; and therefore there is nothing hard in the act of the Court placing the surety exactly in the situation of the creditor. Aldrich v. Cooper, 8 Vesey, 382, 388, 389.

Appropriation

of the payments made by principal debtor.

See Halford v. Byron, Precedents in Chancery, 178. See Kirby v. Duke of Marlborough, 2 Maule & Selwyn, 18; Plomer v. Long, 1 Starkie, 153; Marryatts v. White, 2 Starkie, 101.

You have nothing to show what was meant by the principal when he paid the money: there is nothing in the shape of evidence as to the animus solventis; the surety too does not appear to have interfered, or known indeed of the payments having been made: if he had, and there was ground to believe that he considered the payments made in exoneration of the debt for which he had given securities, the case would be different. The appropriation made by the creditor is therefore binding and conclusive upon all parties. Anon. M. R. February, 1820. If the principal debtor consents to a particular appropriation, there is an end of all question: for in general he has an option as to which account the payments shall be applied to: in general he alone has an unfettered right in this respect, and over which the surety has no controul: unless indeed there was an express or distinct agreement entered into at the time of the execution of

the security. See Williams v. Rawlinson, 10 Moore, 362; S. C. 3 Bingham, 71.

Shaw v. Picton, 4 Barnewall & Cresswell, 715; S. C. 7 Dowling & Ryland, 201.

Where the principal is otherwise indebted to the creditor, there is no presumption that payments, made by the principal, are to be appropriated in ease of the debt to which a surety is liable. Every thing must depend upon the circumstances of each case. If there are no special circumstances, the creditor may appropriate the monies received as he pleases. M. R. Anon. May, 1827.

between

In Lord Keeper Coventry's time contributions between sureties Contribution seem to have been frequently enforced. Peter v. Rich, 1 Re- sureties. ports in Chancery, 19; Parkhurst v. Bathurst, Tothill, 41; Peter v. Davis, ibidem; Fleetwood v. Charnock, Nelson, 10; S. C. Tothill, 41; Morgan v. Seymour, 1 Reports in Chancery, 64.

Nevertheless only a few years before (11th James I.) the Court of Common Pleas granted a prohibition against one surety suing another for contribution in the Court of Requests, not upon the ground of that Court possessing no jurisdiction, but because if one surety should have contribution against the other it would be a great cause of suits.

Two men are bound with I. S. as sureties in an obligation. One of the sureties, viz. Wormleighton, was sued upon the bond, and the whole penalty recovered against him. He exhibited an English bill into the Court of Requests against the defendant, being the other surety, to have contribution; and it was moved to the Court for a prohibition to the Court of Requests, and the same was granted; because by entering into the obligation it became the debt of each of them jointly and severally, and the obligee had his election to sue which of them he pleased, and take forth execution against him; and the Court said, that if one surety should have contribution against the other, it would be a great cause of suits, and therefore the prohibition was awarded; and so it was said it was lately adjudged and granted in the like case in Sir William Whorwood's case. Wormleighton and Hunter's case, Godbold, 243.

See Hole v. Harrison, Reports tempore Finch, 15, 203; S. C. 1 Cases in Chancery, 246.

In Lawson v. Wright, 1 Cox, 275, Lord Kenyon said it had been established ever since the origin of Courts of Equity, that one surety had a right to call on another for contribution.

Principle of the doctrine.

Where sureties

rate instru

ments.

There is right of contribution against other sureties in equity from the earliest times. Underhill v. Horwood, 10 Vesey, 209,

226.

Said by Chief Baron Eyre, in Dering v. Lord Winchelsea, 1 Cox, 318, 321, that if we take a view of the cases both in law and equity, we shall find that contribution is bottomed and fixed on general principles of justice, and does not spring from contract, though contract may qualify it.

The right of a surety, to call upon his co-surety for contribution, is properly enough stated as depending rather upon a principle of equity than upon contract; unless in this sense, that the principle of equity being in its operation established, a contract may be inferred upon the implied knowledge of that principle by all persons; and it must be, upon such a ground of implied assumpsit, that Courts of law have assumed a jurisdiction upon this subject. Craythorne v. Swinburne, 14 Vesey, 160,

164.

The principle established in the case of Dering v. Lord Winchelsea is universal, that the right and duty of contribution is founded in doctrines of equity; it does not depend upon contract. It would be against equity for the creditor to exact or receive payment from one, and to permit, or by his conduct to cause, the other debtors to be exempt from payment. Stirling v. Forrester, 3 Bligh, O. S. 575, 590. See also p. 596.

It is admitted that the doctrine of contribution rests upon the principle of equality. The creditor has remedies, which he ought so to use, that the burthen may be equally borne by all the sureties; and if from partiality or caprice he chooses to enforce his remedies against one only of the sureties, the others may come into a Court of Equity and have that effected there, which, in conscience at least, the creditor should have done. Coope v. Twynam, L. C. July, 1823.

It makes no difference if the sureties are bound by different bound by sepa- instruments, but for the same principal and the same engagement. The sureties have a common interest and a common burthen : they are joined by the common end and purpose of their several obligations, as much as if they were joined in one instrument, with this difference only, that the penalties will ascertain the proportion in which they are to contribute; whereas if they join in one bond it must depend on other circumstances. Dering v. Lord Winchelsea, 1 Cox, 318, 322.

Dering v. Lord Winchelsea has decided that though one person

becomes a surety without the knowledge of another surety, that circumstance introduces no distinction. Craythorne v. Swinburne, 14 Vesey, 160, 165.

Lord Winchelsea's case first decided, great doubt having before prevailed, that the circumstance that one surety becomes so by a separate instrument, makes no difference in the relation among the others. Ware v. Horwood, 14 Vesey, 28, 31.

In Coope v. Twynam, Turner & Russell, 426, 429, Lord Eldon said the above case of Dering v. Lord Winchelsea was much doubted in Westminster Hall at the time it was decided; but he believed upon consideration it would be found to be quite right. See also 14 Vesey, 169; 1 Wilson, C. C. 422, 423, 424; and 2 Swanston, 192.

The fact that the liability arises on separate instruments affords no distinction as to the right of contribution between the sureties. Mayhew v. Crichett, 2 Swanston, 185, 192, S. C.; 1 Wilson, C. C. 418, 424.

Where sureties are bound by different instruments for the same debt, due from the same principal, the question is, whether the transaction was really a separate and distinct transaction, or the same transaction split into different parts. Coope v. Twynam, Turner & Russell, 426.

Question as to the author of the loss having the benefit of a Miscellaneous contribution. Dering v. Lord Winchelsea, 1 Cox, 318, 319.

On principle and analogy, a surety paying and seeking contribution shall not have interest from his co-surety upon the money paid, or upon any part of it, but is only entitled to contribution at any time towards the sum actually paid, in the absence of express agreement. Onge v. Truelock, 2 Molloy, 42.

See the case of Salkeld v. Abbott, ante, pages 654-656. Dennis claimed interest upon the contribution. The Court said Dennis is entitled to the benefit of the recognizance to aid him in recovering one-half of the money he has paid. But how does that make a debt carry interest, which in its own nature will not do so? The recognizance remaining undischarged at law, he has got the benefit of it to the extent mentioned, namely, to the extent of his recovering his simple contract debt by its means. The recognizance does not convert a simple contract debt into a specialty debt; nor does the party become a specialty creditor. He is only allowed to stand in the place of a specialty creditor to recover the amount of his simple contract debt. The debt

Cases.

Surety may provide that contribution be li

mited, or altoge ther excluded.

being a debt, which did not at first bear interest, interest cannot be given by operation of law. Salkeld v. Abbott, 1 Hayes & Jones, 110.

Three sureties and one dead insolvent, but his executor nevertheless a necessary party to suit between the other two for contribution. Hole v. Harrison, Reports tempore Finch, 15.

Lord Hardwick would have held otherwise. See Madur v. Jackson, 3 Atkyns, 406.

See also Angerstein v. Clark, 2 Dickens, 738, and Cockburn v. Thompson, 16 Vesey, 321, 326.

Bill for payment by creditor against surety: principal, released with consent of surety, held to be a necessary party. Brooks v. Stuart, 1 Beavan, 512.

Bill by executors of surety, who had paid the debt, against the co-surety for a contribution: the principal being also a defendant, it is not necessary to prove his insolvency. The decree directed payment by the principal to the co-surety of what the latter should pay to the plaintiffs. Lawson v. Wright, 1 Cox, 275; see also Dering v. Lord Winchelsea, ibidem, 318, 323.

As to proof of insolvency of principal or co-surety in action for contribution, see Cowell v. Edwards, 2 Bosanquet & Puller, 268.

Action of contribution. Points as to what to be recovered, and what to be taken in reduction. Knight v. Hughes, 3 Carrington & Payne, 467; S. C. 1 Moody & Malkin, 247.

Contribution. Security given by one of the sureties for payment of an annuity, and that surety afterwards becomes the owner of the annuity. Browne v. Lee, 9 Dowling & Ryland, 700; S. C. 6 Barnewall & Creswell, 689.

Whether the doctrine of contribution between sureties stands upon contract, or a principle of equity, it is clear, that a party may take care by his engagement that he shall be bound only to a certain extent (a). Craythorne v. Swinburne, 14 Vesey, 160,

169.

It must be admitted that if one surety can provide that ano

(a) Such was the law of England more than six hundred years ago. "Tenentur autem plegii si plures fuerint, singuli in totum, nisi aliter convenerit quando se plegios inde fecerunt, et ad inde satisfaciendum simul sunt distringendi. Ita quòd si plures dati fuerint plegii, et aliquis vel aliqui eorum non habeant