demnity from the principal. For instance, a surety paid a note after the principal was dead, and after the time allowed by statute for filing claims against his estate had elapsed, so that the creditor could not recover from the principal's estate. The surety sued the principal's estate for indemnity, and the principal's administrator claimed the debt was barred by the statute of limitations. But the court held, though the creditor's right of action was barred as to the estate, that the surety still remained liable to the creditor and had to pay the debt, and therefore was entitled to recover whatever he paid to discharge himself from such liability (29). According to this case the surety, so long as he remains liable, may pay the debt and recover indemnity, regardless as to whether or not the claim is barred as to the principal. After the creditor's right against the surety is barred, the surety ought not to ignore this defense, pay the claim, and then recover from the principal; although there is considerable authority that he may do this where the creditor's claim against the principal is not barred. This latter view may perhaps be justified as amounting to a purchase by the surety of an assignment of the claim.

§ 87. Waiver of statute of limitations by principal. A partial payment of a claim barred by the statute of limitations waives the bar of the statute, so that a creditor can enforce the debt again and the statute starts to run anew from the time such a partial payment was made. If a principal is a co-obligor with a surety, that is, if both are primarily liable to the creditor, and the principal

(29) Sibley v. McAllaster, 8 New Hampshire, 389.

makes a part payment of the debt after it is barred by the statute of limitations, this will not revive the claim against the surety (30). The same is true when the surety is secondarily liable as to the principal. The waiver of the statute of limitations by the principal does not waive it as to the surety.

§ 88. Payment of judgment by surety. A surety who pays a judgment rendered against him individually, or jointly against him and the principal, even though he does not defend the suit against him with diligence (31), or even though he allows the judgment to go against him by default, he not knowing of any defense to the action, can recover the amount he paid from the principal. As stated before, if he knows of a defense he must not ignore it. It is the duty of the principal, if he has a defense, to set it up at the trial, whether the action is against him, against the surety separately, or jointly against both; and, if he does not do so, he cannot set up such defense in a suit by the surety against him for indemnity. Suppose the principal gave a promissory note for $500, and at the time the note became due has a claim against the creditor for $500 which he can set off against the note. The creditor sues the surety on the note, and he, having no defense, lets the judgment go against him by default, pays it, and then sues the principal. The latter would have to pay the surety in full, and then, if he wished relief, would be obliged to sue the creditor to recover the amount of the set-off.

(30) Bordell v. Peay, 20 Arkansas, 293. (31) Doran v. Davis, 43 Iowa, 86.

SECTION 3. CONTRIBUTION.

§ 89. Right to contribution. If one co-surety pays the debt after the principal has defaulted, he has a right to contribution from the other co-sureties. This right of contribution, like indemnity and subrogation, is not founded upon any contract between the co-sureties, for there is none; but is founded on the principle of equity arising from the proposition that, when two or more sureties stand in the same relation to the principal, they are entitled equally to all the benefits and must bear equally all the burdens of the position. Hence, it does not matter that the several sureties were ignorant of each other's liability; they are entitled to contribution if they stand in the same position in respect to the principal, unless some have equities which give them an advantage over others. Contribution was at first enforced only in courts of equity, but the right has been so long and so generally recognized and enforced that law courts now enforce it as well as equity courts.

§ 90. When the right arises. The right of contribution arises when one co-surety pays more than his proportionate share of the debt upon which the principal has defaulted. He then is entitled to recover all in excess of his proportionate share from the other co-sureties. The surety must be legally bound when he pays, or he cannot have contribution. In general he can have concould tribution in cases where he ean enforce indemnity against the principal.

§ 91. Enforcement in equity: Against whom and amount of recovery. In a suit in equity the surety is en

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titled to contribution, and can recover from each solvent co-surety his pro rata amount, excluding all insolvent co-sureties. Thus, where A, B, and C are co-sureties for a debt of $600, and A pays the entire debt and brings a bill in equity for contribution, if all three sureties are solvent he can recover $200 from each co-surety. If, on the other hand, C is insolvent, B would be forced to contribute one-half of the debt, or $300, the burden resting equally upon the two solvent sureties (32). If a surety is a non-resident, the effect is the same as when insolvent, and the debt is divided equally among the resident solvent sureties (33). Thus, in the above example, had C been a non-resident, B would have been liable for onehalf the entire amount. After After enforcing contribution from the resident solvent sureties, all of the sureties who have paid shares of the debt may proceed against the estate of any insolvent surety, or may follow a non-resident surety and sue him wherever he can be found, but no one surety can recover more than the excess he has paid, over and above the amount he would have had to pay had all co-sureties been forced to contribute. So, in the above case, B could proceed against C's estate if C was insolvent, but could recover only $100; for, had all three sureties contributed, each would have paid $200, and therefore the excess B paid was $100.

§ 92. Same: Conditions precedent and parties. In equity, before a surety who has paid the debt can enforce contribution from co-sureties, he must recover, if possible, from the principal; and must show in his bill for

(32) Peter v. Rich, 1 Reports in Chancery, 34 (33) Stewart v. Goulden, 52 Michigan, 143.

contribution that the principal is insolvent, or must show some other sufficient reason why he cannot recover from such principal. The reason for this rule in equity is that it prevents a multiplicity of suits and avoids circuity of action. Suppose, for instance, A, B, and C are sureties for D, and A pays the debt. If A recovers contribution from B and C, then all three sureties must sue D for indemnity; but, if A is first forced to sue D for indemnity, if D is solvent the entire affair will be settled in one suit, whereas otherwise four would be required. The surety therefore is required by a court of equity to recover from the principal, if he can, before enforcing contribution against his co-sureties (34).

In a suit in equity to enforce contribution, the surety must join the principal as a party defendant if he is within the jurisdiction, or else prove that he is insolvent; and must also join all solvent sureties within the jurisdiction. Then, if the principal be joined and has property available, full recovery can be had from him; and, if nothing can be thus obtained, contribution may be had from the solvent sureties in the same action.

§ 93. Enforcement at law. At law, the right of contribution has come in theory to be based on implied contract. By the weight of authority, it is held that there is an implied promise by each surety to pay an aliquot part of the debt, in case of the principal's default. The default, then, under this theory, renders the surety liable to pay such aliquot part, regardless of whether the principal is solvent or not. This share of the debt is also

(34) Gross v. Davis, 87 Tennessee, 226.