3 Craythorne V. Swinborne, 14 Ves. 160; Peaslee V. Breed, 10 N. H. 489; Boardman V. Paige, 11 N. H. 431.

4 Pars. II. 36; McDonald V. Magru-der, 3 Pet. 470; Decreet V. Burt, 7 Cush. .551; Westen V. Chamberlain, 7 Cush. 404; Hogue V. Davis, 8 Grat. 4.

5 Pickering V. Marsh, 7 N. H. 192; Cutter V. Emery, 37 N. H. 567.

6 Keith V. Goodwin, 31 Vt. 268; Harris V. Warner, 13 Wend. 400.

7 Turner V. Davies, 2 Esp. 478; Thomas V. Cook, 8 B. & C. 728.

8 Turner V. Davis, 2 Esp. 478; Clapp V. Rice, 13 Gray, 403; Taylor V. Savage, 12 Mass. 98; Davis V. Barrington, 30 N. H. 517; Cutter V. Emery, 37 N. H. 567; Barry V. Ransom, 12 N. Y. 462; and cases cited Wh. on EV. sec 952.

9 Norton V. Coons, 2 Selden, 33; McMillan V. Parkell, 64 Mo. 286. That parties to commercial paper signed as co-sureties, parol evidence is, as between themselves, admissible to show, see Reynolds V. Wheeler, 10 C. B. N. S. 561.

pendent guarantor cannot be compelled to contribute to relieve a surety who is primarily responsible for the principal's debt.1 Nor is the defendant liable to contribution if he become surety to oblige the plaintiff at the latter's request.2 But a claim to contribution is not defeated by the mere fact that the debt on which the claim is made is secured by several coutracts.3 - No previous demand on the co-surety is necessary to sustain the suit.4 - Inability of the principal to pay is not a condition precedent to recover.5 - Whether the obligation be joint or joint and several, the principle is that he who relieves others concurrently liable with him from their burden is entitled to contribution from them in proportion to the amount of their relief.6 Hence, the executor of a deceased co-debtor is liable for contribution;7 though in cases of joint obligation the estate of a deceased surety is absolutely discharged both in law and equity, as against the creditor, but not as against a co-surety.8 The surety who pays may come down on the estate of the deceased surety.9 "It matters not, in case of a debt, whether the sureties are jointly and severally bound, or only severally, or whether their suretyship arises under the same obligation or instrument, or under divers obligations or instruments, if all the instruments are for the same identical debt."10 In such cases, if the representatives of the deceased obligor are liable, then contribution lies.1 The payment, however, in order to sustain a claim for contribution, must have been obligatory;2 though to make it such it is not necessary that a suit should be instituted. It is enough if the payment be one which the party making it could have been compelled to make.3 It makes no matter, in such case, what is the form the surety's liability takes; it is enough if he is legally bound.4 The promise to reimburse in such cases is a part of the contract assumed to exist between the co-sureties when they enter into the contract of suretyship.5 - A party who unnecessarily contests a claim, cannot recover from his co-debtors their proportion of the expenses of litigation.6 The weight of authority, however, is that he is entitled to recover from his co-debtors their share in the costs of any litigation he may have judiciously resorted to for their joint protection.7 Contribution may in any view be obtained for acts incurred in a procedure jointly authorized by the co-sureties.8 - In equity the co-debtor who pays is entitled to recover from the co-debtor he sues the proportion the latter would be required to pay, striking out such co-debtors as are insolvent;9 though it 1 Longley V. Griggs, 10 Pick. 121. See Cutter V. Emery, 37 N. H. 567.

2 Turner V. Davies, 2 Esp. 478; Taylor V. Savage, 12 Mass. 98; Apgar V. Hiler, 4 Zab. 812; and cases cited 2 Ch. on Cont. 11th Am. ed. 894.

3 Dering V. Winchelsea, 2 Bos. & P. 270; Craythorne V. Swinborne, 14 Ves. 160.

4 Chaffee V. Jones, 19 Pick. 260; Collins V. Boyd, 14 Ala. 505. See supra, sec 575.

5 Supra, sec 597 et seq.; Cowell V. Edwards, 2 B. & P. 268; Goodall V. Went-worth, 20 Me. 322; Odlin V. Greenleaf, 3 W. H. 270.

6 Kemp V. Finden, 12 M. & W. 421; Boulter V. Peplow, 9 C. B. 493; Sison V. Kidman, 4 Scott N. R. 429; Chaffee V. Jones, 19 Pick. 260; Parker V. Ellis, 2 Sandf. 223; Armitage V. Pulver, 37 N. Y. 497. See McCune V. Belt, 45 Mo. 174.

7 Bachelder V. Fiske, 17 Mass. 464; Bradley V. Burwell, 3 Denio, 61; Barry V. Ransom, 12 N. Y. 462; Johnson V. Harvey, 84 N. Y. 363; Chipman V. Morrill, 20 Cal. 130; and cases cited infra, sec 766.

8 Ibid. See Waters V. Riley, 2 Har. & G. 305; infra, sec 820, 832.

9 Infra, sec 766, 820. As to contribu tion by heirs of surety, see Stevens V. Tucker, 73 Ind. 73.

10 Story Eq. Jur. 12th ed. sec 495; citing Dering V. Winchelsea, 1 Cox, 318; 2 B. & P. 270; Stirling V. Forrester, 3 Bligh, 590.

1 Infra, sec 766.

2 Infra, sec 835.

3 Supra, sec 761; Pitt V. Purssord, 8 M. & W. 538; Davies V. Humphreys, 6 M. & W. 153; Odlin V. Greenleaf, 3 N. H. 270; Shaw V. Loud, 12 Mass. 447; Frith V. Sprague, 14 Mass. 455; Chaffee V. Jones, 19 Pick. 260; Lucas V. Ins. Co., 6 Cow. 635; see for cases supra, sec 761; infra, sec 835.

4 Beal V. Brown, 13 Allen, 114. On the general question of liability, see Kemp V. Findon, 12 M. & W. 421; Lidderdale V. Robinson, 2 Brock. 160; Fletcher V. Grover, 11 N. H. 369; Chaffee V. Jones, 19 Pick. 260; Mitchell V. Sproul, 5 J. J. Marsh. 270.

5 Batard V. Hawes, 2 E. & B. 287; Peaslee V. Breed, 10 N. H. 489, following in this respect the rule adopted in reference to the relations of the surety to the principal. Appleton V. Bascom, 3 Met. (Mass.) 169; infra, sec 769.

6 Kemp V. Findon, 12 M. & W. 424; Davis V. Emerson, 17 Me. 64; Fletcher V. Jackson, 23 Vt. 593; Beckley V. Munson, 22 Conn. 279.

7 Theob. on Prin. & Sur. sec 286; Kemp V. Findon, 12 M. & W. 421; Davis V. Emerson, 17 Me. 64; Beckley V. Munson, 22 Court. 299; Bonney V. Seeley, 2 Wend. 481; Leary V. Cheshire, 3 Jones Eq. 170; Cleveland V. Covington, 3 Strob. 184; Furnold V. Bank, 44 Mo. 336; and see discussion in Parsons, i. 33-4; 1 Ch. Cont. 11th Am. ed. 894. As limiting such liabilities, see Knight V. Hughes, 3 C. & P. 467; Roach V. Thompson, M. & M. 487; Boardman V. Page, 11 N. H. 431.

8 Edgar V. Knapp, 5 M. & G. 75.

9 Cowell V. Edwards, 2 B. & P. 268; Hole V. Harrison, 1 Ch. Cas. 246; Henderson V. McDuffee, 5 N. H. 38; Mills V. Hyde, 19 Vt. 59; see Story on Cont. sec 1144. That the rules of law and equity is in some jurisdictions otherwise at law, it being held that the plaintiff can only recover the proportion that the defendant would have to pay supposing all the co-debtors were solvent.1 And in any view only the amount actually paid in excess can be recovered.2 - Courts of equity, also, have held sureties, on payment of their principal's debt to the creditor, entitled to the benefit of all the collateral securities, both legal and equitable, which the creditor holds on account of the debt.3 - The obligation of contribution is several; and hence one surety may release one of his co-sureties without affecting his right against the others.4 - An agreement, also, by the creditor, giving time to one surety, does not relieve co-sureties from the duty of contribution.5 The discharge, also, of a surety from his principal debt, does not, unless that debt be in itself extinguished, release him from liability to his co-sureties.6 - Where the plaintiff in a suit for contribution seeks to reimburse himself for a loss in an illegal adventure, and where the object of the suit is to indemnify him for an act condemned by the lex fori, he cannot obtain the aid of the court.7 as to principal and surety are substantially the same, see Cooper V. Evans, L. R. 4 Eq. 45.

1 Browne V. Lee, 6 B. & C. 689; Cowell V. Edwards, 2 B. & P. 268; Currier V. Fellows, 7 Foster, N. H. 366; Chaffee V. Jones, 19 Pick. 265; cited Parsons, ii. 35.

2 Tarr V. Ravenscroff, 12 Grat. 642; see Fletcher V. Grover, 11 N. H. 368. In Kelly V. Page, 7 Gray, 213, it was held that a surety in a bail bond, who has settled with the obligee, and taken an assignment of the judgment obtained by the obligee against the two sureties, can only recover on the judgment against his fellow surety half the amount of the judgment.

3 Story Eq. Jur. 12th ed. sec 499; Craythorne V. Swinburne, 14 Ves. 159; Jones V. Davis, 4 Russ. 277; Hodgson V. Shaw, 3 My. & K. 183; Gould V. Fuller, 18 Me. 364; Wilcox V. Bank, 7.

Allen, 270; Bowditch V. Green, 3 Met. 360; Atwood V. Vincent, 17 Conn. 576; McLean V. Towle, 3 Sandf. 117; York V. Landis, 65 N. C. 535; State Bank V. Campbell, 2 Rich. Eq. 180. That the surety may insist on an assignment of securities, see Story Eq. Jur. 12th ed. sec 499 a.

4 Kelby V. Steel, 5 Esp. 192; Graham V. Robinson, 2 T. R. 282; Birkley V.

Presgrave, 1 East, 220; Fletcher V. Jackson, 23 Vt. 591; Parker V. Ellis, 2 Sandf. 223; Crowdus V. Shelby, 6 J. J. Marsh. 61; Parsons, ii. 35; Fletcher V. Grover, 11 N. H. 368.

5 Dunn V. Slee, Holt, N. P. 399; Draper V. Wald, 13 Gray, 580.

6 Clapp V. Rice, 15 Gray, 557; see Warner V. Morrison, 3 Allen, 566.

7 Booth V. Hodgson, 6 T. R. 405; Merryweather V. Nixan, 8 T. R. 186; Farebrother V. Ansley, 1 Camp. 343; supra, sec 340.

Where, however, the suit is not to indemnify the plaintiff in wrong-doing, but to obtain money inequitably retained by the defendant, the fact that the money was the produce of an adventure technically illegal is no defence.1