give notice required by law,84 has been allowed on payment of the debt to recover indemnity or contribution. Such decisions seem sound, though at variance with statements frequently made that unless the surety's payment was under legal necessity he cannot recover. Where the principal or cosurety is still bound to the creditor he is not injured if the surety pays the debt and recovers from him. Therefore, where there is a moral obligation on the part of the surety, he should not be required, on peril of acquiring no right over, to refuse to pay the debt. The surety, however, cannot be allowed to extend the obligation of the creditor merely for his own satisfaction. Accordingly if the Statute of Limitations has run in favor both of the principal and the surety, a payment thereafter by the surety cannot be recovered from the principal nor can contribution be recovered from a co-surety against whom the creditor no longer had at the time of the payment an enforceable right.85

The mere fact that the Statute of Limitations has run against the creditor in favor of the principal debtor or a co-surety prior to the action for indemnification or contribution will not defeat the action if the Statute had not run when payment was made. It has been said 87 that "the liability of the principal cannot

84 Stanley v. McElrath, 86 Cal. 449, 25 Pac. 16, 10 L. R. A. 545.

85 Hatchett v. Pegram, 21 La. Ann. 722; Godfrey v. Rice, 59 Me. 308, 309; Hooper v. Hooper, 81 Md. 155, 174, 31 Atl. 508; Barnsback v. Reiner, 8 Minn. 59; Gronna v. Goldammer, 26 N. Dak. 122, 143 N. W. 394, Ann. Cas. 1916 A. 165; Wheatfield v. Brush Valley, 25 Pa. 112; Cocke v. Hoffman, 5 Lea, 105, 40 Am. Rep. 23; Glasscock v. Hamilton, 62 Tex. 143, 153; Turner's Adm'r v. Thom, 89 Va. 745, 17 S. E. 323. For other illustrations of the same principle, see infra, § 1286, n. 10.

86 Wolmershausen v. Gullick, [1893] 2 Ch. 514; Gardner v. Brooke, [1897] 2 Ir. Rep. 6; Robinson v. Harkin, [1896] 2 Ch. 415; Wood v. Leland, 1 Met. 387; Hard v. Mingle, 206 N. Y. 179, 99 N. E. 542, 42 L. R. A. (N. S.) 1131;

Camp v. Bostwick, 20 Oh. St. 337, 5 Am. Rep. 669; McCormick v. Sener, 200 Pa. 11, 49 Atl. 311; Fullerton v. Bailey, 17 Utah, 85, 53 Pac. 1020; Cawthorne v. Weisinger, 6 Ala. 714; Mentzer v. Burlingame, 78 Kans. 219, 97 Pac. 371, 18 L. R. A. (N. S.) 585; Crosby v. Wyatt, 23 Me. 156; Seabury u. Sibley, 183 Mass. 105, 66 N. E. 603; Sibley v. McAllaster, 8 N. H. 389; Peaslee v. Breed, 10 N. H. 489, 34 Am. Dec. 178; Boardman v. Paige, 11 N. H. 431; Koelsch v. Mixer, 52 Oh. St. 207, 39 N. E. 417; Martin v. Frantz, 127 Pa. 389, 18 Atl. 20, 14 Am. St. Rep. 859; Marshall v. Hudson, 9 Yerg. 57; Reeves v. Pulliam, 7 Baxt. 119; Aldrich u. Aldrich, 56 Vt. 324, 48 Am. Rep. 791.

87 Lane v. Westmoreland, 79 Ala. 372, 374.

be increased nor accelerated by the voluntary, unnecessary act of the surety. He must wait until he is legally liable to pay, and subject to be coerced to pay. Of course, we speak of the general rule; for if there be special stipulations, they determine the mode and measure of liability;" 88 but if no defence has arisen at the date when the claim would have matured, a surety who has paid it before maturity may recover indemnity or contribution after the date of maturity.89

§ 1284. Measure of surety's recovery.

"Where a surety is sued with his principal, or where he is sued alone and notifies the principal so as to enable him to defend or to furnish a surety with a defence, the recovery against the surety is the measure of his damages against the principal." 90 And so where a co-surety is joined in the action and contribution is afterwards claimed.91 Unless the principal or co-surety is thus in effect made responsible for the amount of the judgment or unless his promise is in terms to answer for the result of the litigation, the correctness of the judgment may be questioned in a subsequent action for indemnity or contribution.92 Not only may a surety pay the creditor if he has become liable on the obligation without contesting his

88 Citing Brandt on Suretyship, 88 191, 194; Reynolds v. Magness, 2 Ired. Law, 26; St. Albans v. Curtis, 1 D. Chipm. 164; Gennings v. Norton, 35 Me. 308; Gilbert v. Wiman, 1 Comst. 550, 49 Am. Dec. 359; Gibbs v. Mennard, 6 Paige, 258; Shepard v. Shepard, 6 Conn. 37; Duncan v. Keiffer, 3 Bin. 126; M'Lean v. Ragsdale, 31 Miss. 701; Hollinsbee v. Ritchey, 49 Ind. 261; Pope v. Davidson, 5 J. J. Marsh. 400.

89 Golsen v. Brand, 75 Ill. 148; Ross v. Menefee, 125 Ind. 432, 25 N. E. 545; Tillotson v. Rose, 11 Met. 299; Felton v. Bissel, 25 Minn. 15; Barber v. Gillson, 18 Nev. 89, 1 Pac. 452; Armstrong v. Gilchrist, 2 Johns. Cas. 424; Williams v. Williams, 5 Oh. 444; Craig v. Craig, 5 Rawle, 91; Guckenheimer & Bros. Co. v. Kann, 243 Pa. 75, 89 Atl. 807.

90 Hare v. Grant, 77 N. C. 203. And see Smith v. Compton, 3 B. &. Ad. 407; Rice v. Rice, 14 B. Mon. 417; Littleton v. Richardson, 34 N. H. 179, 66 Am. Dec. 759.

91 Love v. Gibson, 2 Fla. 598. But if the co-surety is not properly a party and obtains judgment on an issue not going to the merits he is not bound by the judgment against his co-surety. Koelsch v. Mixer, 52 Ohio St. 207, 39 N. E. 417.

92 Cathcart v. Foulke, 13 Mo. 561; Guay v. Eastman, 77 N. H. 422, 92 Atl. 840; Thomas v. Hubbell, 15 N. Y. 405, 69 Am. Dec. 619; Kramph v. Hatz, 52 Pa. 525; Lowndes v. Pinckney, 1 Rich. Eq. 155. See also Smith v. Compton, 3 B. & Ad. 407.

claim, and by subrogation or otherwise recover indemnity or contribution,94 but if the surety does without reasonable grounds contest liability, he cannot charge the principal or cosurety with costs incurred in the action; 95 and if the surety's property is sold at a sacrifice to satisfy the creditor's execution, the surety can recover only the amount which the property actually brought.96 The surety, however, may include in his claim for indemnity or contribution costs incurred in a defence reasonably undertaken,97 or incurred in an action in which the principal or co-surety was a co-defendant.98

§ 1285. The surety is limited to reimbursement.

The law is solicitious to insure the surety, by the various remedies it allows, reimbursement as against the principal debtor, and the enforcement against co-sureties of their due share of any loss; but on the other hand it forbids the surety

to seek anything beyond these limits. He cannot speculate in regard to the claim either against the principal or against a co-surety. Therefore, the surety's right on the principal's obligation of indemnity is limited to the surety's actual loss; and if he obtains a discharge of the debt without paying the creditor in full, he can recover only his actual payment.99

Similarly if he seeks to be subrogated to the creditor's rights, he must give the principal the advantage of a favorable settlement made with the creditor. Nor are his rights enlarged, if instead of paying the debt, he purchases at a discount the creditor's claim and seeks to enforce it for its face value against the principal. The same principle is applied to contribution among co-sureties. The calculation of the amount for which a co-surety is liable must be based on the actual payment made by the surety seeking contribution, not on the amount of the debt where it has been settled for less than its face.3

§ 1286. When a surety who has paid the debt is denied relief against the principal or co-surety because of a defence of the latter.

As has been seen, a surety may sometimes be liable though his principal is not, and similarly cases may be supposed where one surety is liable and a co-surety is not. Under such cir

99 Reed v. Norris, 2 M. & Cr. 361; Martin v. Ellerbe, 70 Ala. 326; Jordan v. Adams, 7 Ark. 348; Coggeshall v. Ruggles, 62 Ill. 401; Goodwin v. Davis, 15 Ind. App. 120, 43 N. E. 881; Crozier v. Grayson, 4 J. J. Marsh. 514; Gillespie v. Creswell, 12 Gill & J. 36; Delaware, L. & W. R. Co. v. Oxford Iron Co., 38 N. J. Eq. 151; Bonney v. Seely, 2 Wend. 481; Faires v. Corkerell, 88 Tex. 428, 434, 437, 31 S. W. 190, 639, 28 L. R. A. 528; Kendrick v. Forney, 22 Gratt. 748; Southall v. Farish, 85 Va. 403, 7 S. E. 534, 1 L. R. A. 641; Matthews v. Hall, 21 W. Va. 510.

1 Dinkgrave's Succession, 31 La. Ann. 703; Eaton v. Lambert, 1 Neb. 339.

(N. S.) 498; Pace v. Robertson, 65 N. C. 550; Burton v. Slaughter, 26 Gratt. 914. But in Fowler v. Strickland, 107 Mass. 522, an accommodation indorser who had purchased the note at a discount was allowed to enforce it for the full amount against the makers.

3 Owen v. McGehee, 61 Ala. 440; Smith v. Pitts, 167 Ala. 461, 466, 52 So. 402; Williams v. Riehl, 127 Cal. 365, 59 Pac. 762, 78 Am. St. Rep. 60; Paul v. Berry, 78 Ill. 158; Hickman v. McCurdy, 7 J. J. Marsh. 555; Fuselier v. Babineau, 14 La. Ann. 764; Sinclair v. Redington, 56 N. H. 146; Acers v. Curtis, 68 Tex. 423, 425; 4 S. W. 551; Tarr v. Ravenscroft, 12 Gratt. 642.

4 Supra, §§ 1213–1218.

cumstances whether the surety who is liable can recover indemnity from the principal or contribution from the cosurety depends upon the nature of the latter's defence. If the principal or co-surety is an infant his infancy will be as good a defence to an action by a surety who has paid the debt as it would be to an action by the principal. On the other hand, the principal or co-surety may be excused from liability to the creditor because of the Statute of Limitations, but the surety who pays may still be liable. Under such circumstances the surety, if forced to pay, may recover indemnity from the principal, and under similar circumstances may recover contribution from a co-surety. So the death of one joint cosurety, though it relieves his estate from liability to the creditor will not relieve it from an obligation to contribute to a co-surety who pays more than his share of the debt. The defence of bankruptcy is specifically provided for by the Bankruptcy Act. The vital questions where the surety seeks re

'See supra, § 1278.

Hooks v. Branch Bank, 8 Ala. 580; Sichel v. Carrillo, 42 Cal. 493; Reid v. Flippen, 47 Ga. 273; Gieseke v. Johnson, 115 Ind. 308, 311, 17 N. E. 573; Braught v. Griffith, 16 Iowa, 26, 33; Leslie v. Compton, 103 Kan. 92, 172 Pac. 1015; Godfrey v. Rice, 59 Me. 308; Bullock v. Campbell, 9 Gill, 182; Barnsback v. Reiner, 8 Minn. 59; Scott v. Nichols, 27 Miss. 94; Miller v. Woodward, 8 Mo. 169; Marshall v. Hudson, 9 Yerg. 57; Brooks, 12 Heisk. 12; Bevill v. Boyd, 16 Tex. Civ. App. 491, 495-496, 41 S. W. 670, 42 S. W. 318; Norton v. Hall, 41 Vt. 471.

Preslar v. Stallworth, 37 Ala. 402; Williams v. Ewing, 31 Ark. 229; May v. Vann, 15 Fla. 553; Hill v. Morse, 61 Me. 541; Wood v. Leland, 1 Met. 387; Clapp v. Rice, 15 Gray, 557, 77 Am. Dec. 387; Kelly v. Sproul, 153 Mich. 691, 117 N. W. 327, 15 Ann. Cas. 1029; Burton v. Rutherford, 49 Mo. 255; Frew v. Scoular, 101 Neb. 131, 162 N. W. 496, L. R. A.

1917 F. 1065; Boardman v. Paige, 11 N. H. 431; Camp v. Bostwick, 20 Oh. St. 337, 5 Am. Rep. 669; Martin v. Frantz, 127 Pa. 389, 18 Atl. 20, 14 Am. St. Rep. 859; Knotts v. Butler, 10 Rich. Rq. 143; Reeves v. Pulliam, 7 Baxt. 119, 9 Baxt. 153; Fairies . Cockerell, 88 Tex. 428, 434, 31 S. W. 190, 639, 28 L. R. A. 528; Aldrich v. Aldrich, 56 Vt. 324, 48 Am. Rep. 791. Contrary decisions are: Shelton V. Farmer, 9 Bush, 314; Cochran v. Walker's Ex., 82 Ky. 220, 56 Am. Rep. 891.

8 Ashby v. Ashby, 7 B. & C. 444, 449, 451; Bradley v. Burwell, 3 Denio, 61; Johnson v. Harvey, 84 N. Y. 363, 38 Am. Rep. 515; McKenna v. George, 2 Rich. Eq. 15; Stephens v. Meek, 6 Lea, 226; Tarr v. Ravenscroft, 12 Gratt. 642, 652. See also Hecht . Skaggs, 53 Ark. 291, 13 S. W. 930, 22 Am. St. Rep. 192. But see contra, Waters v. Riley, 2 Har. & G. 305; Kennedy v. Carpenter, 2 Whart.

344.

'See infra, § 1992.