RIGHTS OF SURETY AGAINST GO-SCRETY.
36. The co-sureties are bound to contri bute equally to the debt they become liable to pay when their undertaking is joint, or joint and several, not separate and suc oessive, 3 Pet. 470; but the creditor may re cover the whole amount of one surety, and leave him to his remedy by contribution from the others and reimbursement from the principal. 1 Dan. Ky. 355. To support the right of contribution it is not necessary that the sureties should be bound by the same in strument. 2 Swanst. Ch. 185 ; 14 Ves. Ch. 160. But where two sureties are bound by separate and distinct agreements for distinct amounts, although for equal portions of the same debt, there is no right of contribution between them. I Turn. & R. Ch. 426; 3 Pet. 470. The right of contribution, however,. does not arise out of any contract or agree, ment between co-sureties to indemnify eaelv other, but rests on the principle of equity, which courts of law will enforce, that where two persons are subject to a common burden it shall be borne equally between them. In such cases the law raises an implied promise from the mutual relation of the parties. 3 All. Mass. 566.
It is not necessary that the co-sureties should know of the agreements of each other, as the principle of contribution rests only on the equality of the burden, and not on any privity. 1 Cox, 318 ; 2 Dos. & P. 270; 4 Young & C. 424; 23 Penn. St. 294.
37. A surety may compel contribution for the costs and expenses of defending a suit, if. the defence were made under such circum stances as to be regarded as prudent. 23 Vt. 581. And where the suit is defended at the instance or request of the co-surety, costs would be a subject of contribution, both on' equitable grounds and on the implied promise. 1 Mood. & M. 406.
A claim for contribution extends to all se curities given to one surety. 30 Barb. N. Y. 403 ; 3 Jones, Eq. No. C. 170. If one of several sureties takes collaterals from the prin cipal, they will enure to the benefit of all. 28 Vt. 65; 3 Dutch. N. J. 503. Where one of several sureties is secured by mortgage, he is not bound to enforce his mortgage before he pays the debt or has reason t,o apprehend that he must pay it, unless the mortgagor is wast ing the estate; and if the mortgagor be squan dering the mortgaged property, and the surety secured by ths mortgage fails to enforce his rights, he is chargeable between himself and his co-sureties with the fair vendible value of the mortgaged property at a coercive sale. 11 B. Monr. Ky. 399. The surety in a suit for contribution can recover only the amount which he has actually paid. Any reduction
which he has obtained must be regarded as for the benefit of all the co-sureties. 12 Gratt. Va. 642. And see 11 B. Monr. Ky. 297. BS. The right of contribution may be con trolled by particular circumstances: thus, where one becomes surety at the request of another, he cannot be called on to contribute by the person at whose request he entered into the security. 2 Esp. N. P. Cas. 478; 37 N. H.
567. The agreement between the first surety and the second in such a case is not within the Statute of Frauds. 4 Zabr. N. J. 812.
A surety who i2 fully indemnified by his principal cannot recover contribution from his co-surety for money paid by him, but must indemnify himself out of the means placed in his hands. 21 Ala. N. s. 779.
39. The remedy for contribution may be either in equity or at law. The law raises an implied promise, as we have seen, and clearly gives the right of action, and the remedy at law is ancient, writs of contribu tion being found in the Register, fo. 176, an I in Fitzherbert, Nat. Brev. 162. But the ma jority of the cases are in equity, whose rules of praotice are much better suited to the pro ceeding, espeoially where the accounts are complicated or the sureties numerous. The result reached either in law or in equity is the same, with one important exception; in the case of the insolvency of one of the sureties. In such cases the law takes no notice of the insolvency, but awards the pay ing surety his due proportion as if all were solvent. But equity takes no notice of the surety who is insolvent, but awards contribu tion as if he had never existed. 1 Chanc. Rep. 84 ; 1 Chanc. Cas. 246 ; 6 Barnew. & C. 689 ; 4 Gratt. Va. 267. One surety cannot by injunc tion arrest the proceedings at law of his co surety against him for contribution, unless he tenders the principal and interest due such eo surety, who has paid the principal, or alleges that he is ready and willing to bring the same into court to be paid to him as a condition of the court's interference. 4 Gill, Md. 225. Where a surety has been compelled to pay the debt of his principal, 2,nd one of his co-sureties is out of the jurisdiction of the court, and others are within it, the surety who has paid is at liberty to proceed in a suit in equity for obn tribution against those co-sureties only who are within the jurisdiction, by stating the fact in his bill, and the defendants will be required to make contribution without regard to the share of the absent co-surety. 6 Ired. Eq. No. C. 115.