contribute towards payment of a debt for which they were jointly bound (n); for though the Principal is to discharge all the obligations of all the Sureties (0), yet they stand with regard to each other in a relation which gives rise to this right, among others, that if one pays more than his proportion, there shall be a Contribution for a proportion of the excess beyond the proportion which in all events he is to pay (p); and this doctrine may be found amongst the earliest decisions in Equity (q); but where any act has been done by the obligee, that may injure the Surety, the Court readily says hold of it in his favour (r), and will in such case, if called upon, decree a perpetual Injunction, to restrain the holder of the security from suing upon it (s). If, therefore, the holder of the security, without the consent of the Surety, by positive contract between the Creditor and the Principal, (not where the creditor is merely inactive,) gives time (t), accepts a composition, or discharges the Estate of the Principal, the Surety will stand exonerated (u); for if a (n) Toth. 14. 1 Ch. Rep. 34. 1 Eq. C. Abr. 114. case 9; and see Lloyd v. Mackworth, Bunb. 138. Collins Griffith, 2 P. Wms. 314. (o) See on this head Tynt v. Tynt, 2 P. Wms. 541. (p) Ex parte Gifford, 6 Ves. 808. (q) Lawson v. Wright, 1 Cox 276. See Fleetwood v. Charnock, before Lord Coventry, Nels. 10. (r) Law v. East India Company, 4 Ves. 833 (s) Nisbit against Smith, 2 Bro. C. C. 583. (t) Samuel v. Howarth, 3 Meriv. 278. 9 Edw. 4. p. 41. Skip v. Huey, 3 Atk. 91. Richard Burke's case, mentioned in ex parte Gifford, 6 Ves. 809, note a. and in English v. Darby, 2 Bos. & Pull. 62. & in 18 Ves. 24. Rees v. Berrington, 2 Ves. jun. 540. Nisbit against Smith, 2 Bro. C. C. 579. Laches of obligees, in not calling upon the principal so soon as they might have done, if the accounts had been properly examined from time to time, is no estoppel at Law, whatever remedy there may be in Equity. [Trent Navigation Company v. Harley, 10 East 40.] (u) Ex parte Smith, 3 Bro. C. C. 1. Ex parte Gifford, demand could be made on the Surety, he might enforce a payment from the Principal contrary to the Agreement (x); but the discharge of one Surety does not discharge a Co-surety (y). The Surety is held to be discharged for this reason also, because the Creditor, by so giving time to the Principal, has put it out of the power of the Surety to consider whether he will have recourse to his remedy against the Principal or not; and because he in fact cannot have the same remedy against the Principal as he would have had under the original contract (2). A Surety is entitled to every remedy which the creditor has against the principal Debtor; to enforce every security, and all means of payment; to stand in the place of the Creditor, not only through the medium of contract, but even by means of securities entered into without the knowledge of the Surety; having a right to have these securities transferred to him, though there was no stipulation for it; and to avail himself of all these securities against the Debtor (a). Giving Time to the Principal, the Grantee of an Annuity, has been held to exonerate the Surety from past, as well as future, arrears (b). The doctrine as to Contribution amongst Sureties is not founded on contract, but is the result of general Equity, on the ground of equality of burthen and 6 Ves. 807. Rees v. Berrington, 2 Ves. jun. 543, 4. Wright v. Simpson, 6 Ves. 734. Law v. East India Company, 4 Ves. 824. Boultbeev. Stubbs, 18 Ves. 20. (x) English v. Darby, 2 Bos. (y) Ex parte Gifford, 6 Ves. 805. (z) Samuel v. Howarth, 3 Meriv. 278. (a) Craythorne v. Steinburne, 14 Ves. 162 (b) Eyre v. Bartrop, 3 Madd contribute towards payment of a debt for which they were jointly bound (n); for though the Principal is to discharge all the obligations of all the Sureties (0), yet they stand with regard to each other in a relation which gives rise to this right, among others, that if one pays more than his proportion, there shall be a Contribution for a proportion of the excess beyond the proportion which in all events he is to pay (p); and this doctrine may be found amongst the earliest decisions in Equity (q); but where any act has been done by the obligee, that may injure the Surety, the Court readily says hold of it in his favour (r), and will in such case, if called upon, decree a perpetual Injunction, to restrain the holder of the security from suing upon it (s). If, therefore, the holder of the security, without the consent of the Surety, by positive contract between the Creditor and the Principal, (not where the creditor is merely inactive,) gives time (t), accepts a composition, or discharges the Estate of the Principal, the Surety will stand exonerated (u); for if a (n) Toth. 14. 1 Ch. Rep. 34. 1 Eq. C. Abr. 114. case 9; and see Lloyd v. Mackworth, Bunb. 138. Collins Griffith, 2 P. Wms. 314. (0) See on this head Tynt v. Tynt, 2 P. Wms. 541. (p) Ex parte Gifford, 6 Ves. 808. (q) Lawson v. Wright, 1 Cox 276. See Fleetwood v. Charnock, before Lord Coventry, Nels. 10. (r) Law v. East India Company, 4 Ves. 833. (s) Nisbit against Smith, 2 Bro. C. C. 583. (t) Samuel v. Howarth, 3 Meriv. 278. 9 Edw. 4. p. 41. Skip v. Huey, 3 Atk. 91. Richard Burke's case, mentioned in ex parte Gifford, 6 Ves. 809, note a. and in English v. Darby, 2 Bos. & Pull. 62. & in 18 Ves. 24. Rees v. Berrington, 2 Ves. jun. 540. Nisbit against Smith, 2 Bro. C. C. 579. Laches of obligees, in not calling upon the principal so soon as they might have done, if the accounts had been properly examined from time to time, is no estoppel at Law, whatever remedy there may be in Equity. [Trent Navigation Company v. Harley, 10 East 40.] (u) Ex parte Smith, 3 Bro. C. C. 1. Ex parte Gifford, demand could be made on the Surety, he might enforce a payment from the Principal contrary to the Agreement (x); but the discharge of one Surety does not discharge a Co-surety (y). The Surety is held to be discharged for this reason also, because the Creditor, by so giving time to the Principal, has put it out of the power of the Surety to consider whether he will have recourse to his remedy against the Principal or not; and because he in fact cannot have the same remedy against the Principal as he would have had under the original contract (2). A Surety is entitled to every remedy which the creditor has against the principal Debtor to enforce every security, and all means of payment; to stand in the place of the Creditor, not only through the medium of contract, but even by means of securities entered into without the knowledge of the Surety; having a right to have these securities transferred to him, though there was no stipulation for it; and to avail himself of all these securities against the Debtor (a). ; Giving Time to the Principal, the Grantee of an Annuity, has been held to exonerate the Surety from past, as well as future, arrears (b). The doctrine as to Contribution amongst Sureties is not founded on contract, but is the result of general Equity, on the ground of equality of burthen and 6 Ves. 807. Rees v. Berrington, 2 Ves. jun. 543, 4. Wright v. Simpson, 6 Ves. 734. Law v. East India Company, 4 Ves. 824. Boultbeev. Stubbs, 18 Ves. 20. (x) English v. Darby, 2 Bos. (y) Ex parte Gifford, 6 Ves. 805. (2) Samuel v. Howarth, 3 Meriv. 278. (a) Craythorne v. Steinburne, 14 Ves. 162 (b) Eyre v. Bartrop, 3 Madd benefit. Therefore, if three Sureties are bound by different Instruments, but for the same Principal, and the same engagement, they must contribute (c). Where a Bill is filed by a Surety against his Cosurety and the Principal, for a Contribution from the Co-surety in respect of money actually paid by the Plaintiff for the Principal, it is not necessary to prove the insolvency of the Principal, but it would be otherwise, if the Principal is not a party to the suit (d). If A. is bound for B. and has a counter Bond, B. may be compelled in Equity to pay the debt, though A. is not sued; and upon a Covenant to save harmless, a Bill may in like manner be filed by the Covenantee (e). If Sureties, Co-obligors in Bonds, call upon the Creditor to sue, which he forbears to do, it seems the loss would fall upon the Creditor (ƒ). If a Surety, a Co-obligor in a Bond, pays the Bond, he becomes, it seems, a Specialty Creditor of the Principal (g). So, if a Bond be given to a Creditor, in which one joins as a Surety, and the Principal also gives a Mortgage to the Creditor, and the Surety pays the Bond, he is entitled to the benefit of the Mortgage (h). (c) Deering v. Earl of Winchelsea, 1 Cox 318. S. C. 2 Bos. & Pull. 270. (d) Lawson v. Wright, 1 Cox 277. (e) See dict. Ranelaugh v. Hays, 1 Vern. 190. Redesd. Tr. Pl. 120; and Nisbit v. Smith, 2 Bro. C. C. 582. (f) Ex parte Mure, 2 Cox, P. 74. (g) Hotham v. Stone, at the Rolls, 1810, mentioned, arg. in Robinson v. Wilson, 2 Madd. Rep. 437. The appeal in that case was not prosecuted, the party, by a rise in the price of Stocks, being paid. See also Gayner v. Royner, determined by Sir Thomas Sewell, there mentioned. (h) Plumbe v. Sanday, Nov. 1818, MS. before the Vice Chancellor; and see 14 Ves. 162. |