At law a surety can recover from his co-surety only that coif the surety be notified that there is no defence. Beckley v. Munson, 22 Conn. 299. - In Boardman v. Page, 11 N. H. 431, where an action was commenced by the holder of a note against all the co-signers, and judgment was recovered against one only, it was held that upon payment of damages and costs of the judgment, the party against whom the judgment was recovered was not entitled to contribution from the other cosigners in respect to the costs, - the same not being a burden common to all the cosigners of the note. - It would seem not unreasonable to conclude, notwithstanding the nisi prius decisions of Lord Tenterden, that where the party from whom contribution is sought was at the time of the former action directly liable for the debt to the creditor, so that if the latter had chosen he might have been sued by him, contribution may be recovered for the costs of the judgment, though not perhaps for costs incurred in resisting payment of the judgment, Yet in the late case of Henry v. Goldney, 15 M. & W. 494, 496, an action ex contractu being brought against A, and he pleading in abatement the pendency of another action for the same cause against B, it was contended that the plea ought to be sustained, to prevent A from being twice vexed for the same cause; but Alderson, B, observed: "How is A. vexed by an action being brought against B? B cannot recover against A his proportion of the costs." And see Dearsly v. Middleweek, 18 Ch. D. 236.

(j) It has been held in Kentucky that the principal must be insolvent to render a co-surety liable to contribute to another who has paid the debt. Pearson v. Duck-ham, 3 Litt. 386; Daniel v. Ballard, 2 32

Dana, 296; Morrison v. Poyntz, 7 Dana, 307. But this is opposed to the prevailing doctrine. Cowell v. Edwards, 2 B. & P. 268; Odin v. Greenleaf, 3 N. H. 270; Buckner's Adm. v. Stuart, 34 Ala. 529; Rankin v Collins, 50 Ind. 158; Croy v. Clark, 74 Ind. 597.

(k) Dunn v. Slee, Holt, 399; where it was also held by Parke, J., that time given to one surety is no bar to an action afterwards by that surety against a cosurety.

(l) In Murray v. Bogert, 14 Johns. 318, it was held that where A who claims contribution of B & C, on the ground of having paid a judgment, shows neither that B & C were parties to the judgment, nor that the debt was a joint one, not arising out of a partnership transaction, he must be nonsuited. The reporter's abstract seems incorrect, in so far as it represents the court as holding that the mere absence of proof that the defendants were parties to the judgment was fatal to the claim of contribution. Such a doctrine would be directly in the face of Holmes v. Williamson, 6 M & Sel. 158; Burnell v. Minot, 4 Moore, 340; Boardman v. Paige, 11 N. H. 431.

(m) Sadler v. Nixon, 5 B. & Ad. 936; Edger v. Knapp, 5 Man. & G. 758; Murray v. Bogert, 14 Johns. 318; Lawrence v. Clark, 9 Dana, 257; Pearson v. Skelton, 1 M. & W. 504, where the former action was ex delicto. But where the joint contractors were, together with many others, partners in a joint-stock company, of which they were the contract committee men, contribution was enforced between them on account of the joint liability incurred by them as such committee. Boulter v. Peplow, 9 C. B. 493.

If one co-surety takes security from the principal for his proportion of the burden, or for the whole, the other co-surety shall share in the benefit of it. (p)

The contract of contribution is a several contract. (q) And hence a surety may release one of his co-sureties without barring his right of action against the rest; for a release of one surety discharges the others only from such a proportion of the debt as they would be entitled to have recourse to the discharged party for, upon their payment of the whole debt. (r) But if two cosureties pay the debt out of a joint fund, their right of action against the principal, and as it would seem against other co-sureties, is joint. (s)

The contract on which the assumpsit is founded dates from the time when the relation of co-surety or co-obligor is entered into; although the cause of action does not arise till the payment. * Hence the discharge of one of the joint debtors (by what- ever cause) from his direct liability to the creditor, does not relieve him in law, any more than in equity, from his obligation to indemnify such of the remaining joint debtors as have borne more than their original proportion of the debt. (t)

(n) Browne v. Lee, 6 B & C 689; Cowell v. Edwards, 2 B. & P. 208. - Shaw, C. J., Chaffee v. Jones, 19 Pick 265; Currier v. Fellows, 7 Foster (N. H), 366.

(o) Peter v. Rich, 1 Chanc. 34; Cowell v. Edwards, 2 P. & P. 268; Young v. Lyons, 8 Gill, 162, 166; Preston v. Preston, 4 Gratt. 88, and cases infra. - And in Vermont the rule of equity has been held to be the rule of law also. Mills v. Hyde, 19 Vt. 59. So also, Henderson v. McDuffee, 5 N. H. 38; Boardman v. Paige, 11 N. H. 431; Jeffries v. Ferguson, 87 Mo. 244. Co-sureties who are not within the jurisdiction, as well as insolvent co-sureties, are to be excluded in the calculation of the proportion to be contributed by those against whom payment can be enforced. Security Ins. Co. v. St. Paul etc. Ins. Co., 50 Conn. 233; Whitman v. Porter, 107 Mass. 522; Boardman v. Paige. 11 N. H. 431; McKenna v. George, 2 Rich. Eq. 15; Liddell v. Wiswell, 59 Vt. 365.

(p) Steel v. Dixon, 17 Ch. D. 825; In re Arcedeckne, 24 Ch. D. 709; Ber-ridge v. Berridge, 44 Ch. D. 168: Cannon v, Connaway, 5 Del. Ch. 559; Titcomb v. McAllister, 81 Me. 399; Wolcott v. Hagerman, 50 N. J. L. 289; Parham v. Green, 64 N. C. 436; Shaeffer v. Clen-denin, 100 Pa. 565; Miller v. Sawyer, 30 Vt. 412.

(q) Kelby v. Steel, 5 Esp. 194; Graham v. Robertson, 2 T. R. 282; Brand v. Boulcott, 3 B & P. 235; Birkley v. Pres-grave, 1 East, 220; Parker v'. Ellis, 2 Sandf. 223.

(r) Crowdus v. Shelby, 6 J. J. Marsh. 61; Fletcher v. Grover, 11 N. H. 368; Fletcher v. Jackson, 23 Vt. 581.