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Other Equit Able Rights Against Cosureties


OTHER EQUIT ABLE RIGHTS AGAINST COSURETIES. A surety who is called upon to pay the debt may before paying file a bill in equity to compel his co-surety to contribute to the payment, and also in a proper case restrain such co-surety from disposing of his property until the joint obligation was dis charged. (Brandt, Sur. & Guar., Sec. 275.) Where one of two co-sureties consents to give time to the principal, and the other does not, and the one consenting afterwards has to pay the debt, he cannot enforce contribution, since he is regarded as standing in the shoes of the creditor and affected in the same way by giving time to the principal. (Cameron v. Boulton, 9 Up. Can. [C. P.], 537.) Costs and expenses may be recovered in an action for contribution, where they were made in the interests of, or by the common neglect of, the sev eral sureties. (Davis v. Emerson, 17 Me., 64; Fletcher v. Jackson, 23 Vt., 581.) The proportion which the co-surety may recover from each of the others in an action for contribu tion, is a pro rata amount of the sum paid by him ascertained by dividing the whole amount by the number of solvent co-sureties. (Burroughs v. Lott, ig Cal., 125.) This is the equitable rule. At law, as a general rule, the surety can recover from the solvent co-sureties only their proportionate share ascertained by dividing the whole sum paid by the whole number of sureties, regardless of those who are insolvent. (Acers v. Curtis, 68 Tex., Where the co-sureties are bound in different amounts for the same obligation, as where one is bound for $2,00o and another for $i8,000, and a default is made for $2,000, they are liable in proportion to the amount of the obligation signed by them, and the one liable for $2,00o can recover eight-ninths of the amount from the other. (Armitage v. Pulver, 37 N. Y., 494.) The suit for contribution may be brought at law or in equity. (Broughton v. Wimberly, 65 Ala., 549.) Where two or more co-sureties jointly pay the debt, they may join in a suit for contribution, but if each pays separately they cannot join in such action. (Dussol v. Brugniere, 5o Cal., 456; Lom bard v. Cobb, 14 Me., 222.) When each pays sep arately they have separate actions against the co-surety for indemnity. (Atkinson V. Steward, 2 B. Monr., 348.) Since the insolvent co-sureties are not considered when contribution is asked in an equity court, they are not considered necessary parties, neither is the insolvent principal nor the representatives of insolvent deceased co-sureties necessary parties. (Brandt, Sur. & Guar., Sec. .)

co-sureties, contribution, co-surety and amount