they are given to secure, irrespective of the fact whether they bear the name of the surety only or of co-sureties in addition thereto.' A surety who is also a creditor may apply securities first to the payment of his own debt as against the right of contribution of co-sureties on other obligations. § 236. THE RIGHT OF CONTRIBUTION WHERE PART ONLY OF DEBT PAID.-The equitable right of contribution. among co-sureties arises also in cases where a surety has paid more than his share of the principal debt. In such case the paying surety is entitled to recover of his co-sureties the amount paid in excess of his proportion of the debt. This equity, however, arises only where the surety has paid such an amount of the debt as to make it clear that, as between himself and his co-sureties, he has paid all he ever can be required to pay. When this is ascertained the surety is entitled to proceed for contribution against the co-sureties for the excess paid. Sureties paying but a portion only of the liability for which they are bound, are not admitted as against the creditor remaining unpaid as to the remaining part of the debt, in an action of contribution against cosureties, to the benefit of collateral securities deposited by the debtor with such co-sureties. The equitable right of the creditor is preferred, for until his debt is fully paid, sureties who have paid only a part of the debt, are not entitled to any equitable claim upon such collaterals for reimbursement.* The bar of the statute of limitations runs, in an action for contribution, only from the time the surety pays in excess of his pro rata liability. 1 Whipple v. Briggs, 30 Vt. 111. Brown v. Ray, 18 N. H. 102. 8 Morgan v, Smith, 70 N. Y. 537; Backus v. Coyne, 45 Mich. 584; ex parte Gifford, 6 Ves. 805; Davis v. Humphreys, 6 M. & W. 153; Lawson v. Wright, 1 Cox, 275; ex parte Snowden, L. R. 17 Ch. D. 44. 373. Kelly . Herrick, 131 Mass. Magruder v. Admire, 4 Mo. App. 133; Lytle v. Pope, 11 B. Monr. 297; Daveis . Humphreys, 6 M. & W. 153. § 237. CONTRIBUTION BETWEEN ACCESSORY SURETIES. -Where two bonds with sureties are given for the performance of the same duty, and different parties are sureties thereon, any one of such sureties, on paying the debt, is entitled, in equity and at law, to contribution from the cosureties on both bonds.' A surety, who has been compelled to pay the amount of a judgment against the principal. debtor, may compel contribution from sureties on a second bond for the same principal, which has been executed as security for the same obligation.' Where a second bond was executed by a guardian, a surety upon the first, who had paid a deficiency of his principal, was allowed to enforce the rights of the ward as to the second bond so far as to compel contribution from sureties thereon. In an action by A against B an attachment on B's property was dissolved upon a bond with C and D as sureties. A recovered judgment against B, which not being paid, suit was brought upon the bond, and judgment was recovered against B, C and D, and B was arrested on execution. B took the oath as a poor debtor, and entered into recognizances, with E a surety. After breach thereof, C and D paid the judgment, and brought suit in the name of A against E. As payment. of a judgment by one of several joint debtors extinguishes it as to all, the claim for contribution was not allowed.* as A surety is entitled to contribution and to subrogation as against an accessory surety, where the latter enters into the obligation for the purpose of gaining time or other favor for the principal debtor, but in such a manner that the obligation of the first surety is not discharged. Such subrogation 'Deering. Winchelsea, 2 B. & P. 270; Craythorne v. Swinburne, 14 Ves. 160; Mayhew v. Crickett, 2 Swanst. 184; Emicks . Powell, 2 Strobh. Eq. 196; Chaffee v. Jones, 19 Pick. 260; Norton v. Cooms, 3 Denio, 130. Bosley v. Taylor, 5 Dana, 157. Commonwealth v. Cox, 36 Pa St. 442. 4 Holmes v. Day, 108 Mass. 563; Kammatt . Wyman, 9 Ib 138; Brackett v. Winslow, 17 Ib 153, Adams v. Drake, 11 Cush. 504. 5 Schnitzel's App. 49 Pa. St. 23; Potts v. Nathans, 1 W. & S. 155; and contribution, however, does not follow in cases where the accession of a surety is made so that the further liability of the first surety is extinguished.' But where two judgments having been obtained in part against the same person. upon the same liability, the last being upon an appeal bond, and the sureties bound thereon paid the last judgment, they were given the rights of the holders of the first judgment, notwithstanding an entry of satisfaction had been made on the record, as against a purchaser of the land subject thereto, who was not a purchaser for value, without notice, in the usual course of business.' § 238. THE SURETY'S ACTION AT LAW FOR CONTRIBUTION.—The right to an action at law of one of two or more co-sureties for contribution is dependent upon the fact that the surety has paid the judgment or debt. Before payment one co-surety has no right of action against another. Up to such payment the co-sureties stand to each other upon a perfect equality.3 The recovery of a surety who has paid the whole debt from a co-surety in an action at law for contribution, is limited, unless otherwise provided by statute, to an aliquot part of the whole debt, regard being had to the number of sureties, irrespective of their solvency. If any of the co-sureties are insolvent, equity will aid the paying surety to recover a larger proportion from the Burns. Huntington Bank, 1 P. & 1 Webster's App. 86 Pa. St. 409. 3 Kelly v. Herrick, 131 Mass. 373; Ohio Life Ins. Co. v. Ledyard, 8 Ala. 866; Ten Eyck v. Holmes, 3 Sandf. Ch. 428; Wilcox v. Fairhaven Bank, 7 Allen, 270; Clark v. Ely, 2 Sandf. 166; Reeves v. Pullian, 9 Baxter, 153. Such payments may be made in property, money, negotiable paper or securities, and where it is received in full satisfaction, the right of contribution arises. Ralston v. Davis, 15 Ill. 159. Davis v. Emerson, 17 Me. 64; Bachelder v. Fiske, 17 Mass. 464. solvent sureties, that the burden may be borne equally.' Where, after the debt has been discharged by the sureties, money is paid by the principal to one surety in order to reimburse both, the co-surety, upon default, may bring his action at law against the surety receiving the money as for money had and received. Equity courts will not take jurisdiction thereof, as the remedy is complete at law.' A co-surety sued at law may show in defense that the surety paying the debt received securities from the principal debtor, and has converted them into money. The proceeds thus retained by the surety are treated as a payment pro tanto of the debt.' Nor is it any defense to an action for contribution between co-sureties that the plaintiff, who paid the debt, did not avail himself of the defense of usury, if he had no knowledge thereof. And a party who has signed a note as surety for one who is himself only a surety for the principal maker, is not liable in a suit for contribution." 'Griffin v. Kelleher, 132 Mass. 82; Brigden.. Cheever, 10 Mass. 450, 454; Chaffee v. Jones, 19 Pick. 260, 265; Wood v. Leland, 22 Ib. 503, 506; Cary v. Holmes, 16 Gray, 127; Morgan v. Smith, 70 N. Y. 537; Dodd . Winn, 27 Mo. 503; Magruder v. Admire, 4 Mo. App. 133; Cowell . Edwards, 2 B. & P. 268; Brown v. Lee, 6 B. & C. 689; Batard v. Hawes, 2 El. & Bl. 287; Wright . Hunter, 5 Ves. 792; Craythorne v. Swinburne, 14 Ib. 160. The right is supported as against the estate of the deceased co-surety. Conover v. Hill, 76 Ill. 342. 2 Allen v. Wood, 3 Ired. Eq. 386. 480. Robertson v. Detherage, 82 Ill. 511; Salyers v. Ross, 15 Ind 130 CHAPTER XXIV. THE DISCHARGE OF THE SURETY. $239. The surety's discharge, upon creditor's surrender or loss of collaterals. 240. The rule as to collateral securities limited and illustrated. 241. Mere inaction of creditor as to collateral securities, no discharge. 242. Acceptance of collateral security, without more, no discharge, 243. Acceptance of new security of principal, discharges surety. 244. Discharge by misrepresentations as to collateral securities by creditor. 245. Discharge of surety by changes in the instrument. 246. Surety when not released in cases of forgery. 247. Release of surety, by extension of time to principal. 248. When surety not released, by extension of time. 249. Like rules as to sureties upon specialties. 250. Rights against surety reserved upon release of principal or co-surety. 251. Discharge of deceased surety's estate, as to creditors. 252. No discharge of such estate, as to co-sureties. § 239. SURETY'S DISCHARGE, UPON CREDITOR's SurRENDER OR LOSS OF COLLATERALS.-A surety is discharged from his liability on the principal obligation by any affirmative act of the creditor by which the terms of the contract of suretyship are changed to the prejudice of the surety, without his consent. Such discharge results from a valid and definite extension of time, or by unauthorized changes in the instrument, or by new duties and responsibilities imposed upon the principal, or by the conduct of the creditor in relation to collateral securities received by him from the principal debtor to secure the payment of the debt. A creditor holding collateral securities is chargeable with a trust concerning the same for the benefit of the surety, where he has notice of the existence of such relation as between the parties to the note. By his voluntary accept |