upon, because it was quite useless. In Waffingham v. Sparks, 2 Vef. 569, a furety filed a bill against the principal and the obligee, that the obligee might either put the bond in fuit against the principal, or affign over the bond to the plaintiff that the plaintiff might do it and it was faid by the Mafter of the Rolls that the affignment would be of no ufe to the plaintiff; for if the co-obligor in the bond was paid off, the principal might take advantage of that, and plead payment in bar of an action inftituted by the plaintiff, in the name of the obligee, as it must be. (a)

It was formerly doubted whether one of two joint contractors, who had paid the whole of the debt could maintain an action against the other, as for money paid to his ufe; or whether the furety could maintain fuch an action against his principal for the whole, or against another furety for his proportion; but the right of fuch actions is now perfectly fettled, and they are familiar in practice.

A fuit in equity might always have been fuftained for this purpose.

In a late cafe in the Common Pleas, Lord Eldon intimated a doubt whether a diftinction might not be made, between holding that an action at law is maintainable in the fimple cafe where there are but two fureties, or where the infolvency of all the fureties but two is admitted, and the infolvency of the principal is admitted, and holding it to be maintainable in a complicated cafe, where such an infolvency was neither admitted nor proved, and where the defendant, after a verdict against him at law, may still remain liable to various fuits in equity with each of his co-sureties, and where the event of the action cannot deliver him from being liable to a multiplicity of other suits, founded upon his character as a co-furety. Cowell v. Edwards, 2 Bof. 268.

The general doctrine of contribution was most ably confidered by Lord Chief Baron Eyre, in the cafe of Deering v. Lord Winchelsea, and others, on the equity fide of the Exchequer, 2 Bof. 270. Sir Edward Deering, Lord Winchelsea, and Sir John Rous, became bound in three feveral bonds, that Thomas Deering fhould duly account as receiver of the customs. A fum rather lefs than the penalty of the respective bonds was levied upon Sir Edward Deering, who filed a bill against the other two for contribution, which, his lordship obferved, was refifted on the ground that there was no foundation for the demand, in the nature of the contract between the parties; the counsel for the defendants, considering the title to contribution, as arifing from contract expreffed or implied, that

(a) But fee Rees v. Berrington, fupra. Wright v. Simpfen, 6 Vif. 734. Beardmore v. Crattenden, Co. B. L. 211,

it was admitted that if they had all joined in one bond, for the aggregate amount of the feparate penalties in each, there must have been contribution, but that this was faid to be on the foundation of contract, implied from their being partics in the fame engagement, and here the parties might be strangers to each other, and that it was stated that no man could be called upon to contribute, who was not a furety on the face of the bond to which he was called to contribute. His Lordfhip faid, that the point remained to be proved, that contribution was founded upon contract. That if a view was taken of the cafes, it would appear that the bottom of contribution was a fixed principle of juftice, and was not founded in contract; that contract indéed might qualify it, as in Swainy. Hall, 1 Ch. Rep. 149. where three were bound for H. in an obligation, and agreed, if H. failed, to bear their refpective parts. Two proved infolvent, the third paid the money, and one of the others becoming folvent, he was compelled to pay a third only (a). His lordship having cited feveral cafes and authorities, in respect of the obligation of feveral parties liable to an entire duty, to contribute their respective proportions, and amongst the rest Sir Williant Harbet's cafe, 3 Co. 11.b. where many cafes are put of contribution at common law, and the reafon is, they are all in quali jure, and as the law require equality, they fhall equally bear the burthen. This is confidered as founded in equity; contract is not mentioned. He proceeded as follows:

"In the particular cafe of fureties, it is admitted that one furety may compel another to contribute to the debt for which they are jointly bound. On what principle; Can it be because they are jointly bound? What if they are jointly and feverally bound? What if feverally bound by the fame or different inftruments? In every one of thofe cafes, fureties have a common intereft, and a common burthen. They are bound as effectually, quoad contribution, as if bound in one inftrument, with this difference only, that the fums in each inftrument afcertain the proportions, whereas if they were all joined in the fame engagement, they must all contribute equally.

"In this cafe Sir E. Deering, Lord Winchelfca, and Sir John Rous were all bound, that Thomas Deering fhould account. At law all the bonds are forfeited. The balance due might have been fo large as to take in all the bonds, but here the balance happens to be less than the penalty of one, which ought to pay? He on whom the crown calls, must pay to the crown; but as between themfelves they are in aquali jure, and fhall contribute. This principle

(a) Vide Peter v. Rich, 1 Ch. Rep. 35, cited in a note to Peering v. Lord Wincheljes, where two out of three fureties were compelled to pay in moisties, the third being infolvent.

is carried a great way, in the cafe of three or more fureties in a joint obligation; one being infolvent, the third is obliged to contribute a full moiety. This circumftance, and the poflibility of being made liable to the whole, has probably produced several bonds. But this does not touch the principle of contribution, where all are bound as fureties for the fame perfon.

"There is an inftance in the civil law of

average, where part of a cargo is thrown overboard to fave the vellel. Show Parl. Caf. The maxim applied is qui fentit commodum fentire In the cafe of average there is no contract express or implied, nor any privity in an ordinary fenfe. This thews that contribution is founded on equality, and established by the law of all

19 Mar, 297 debet et omus.

nations.

"There is no difficulty in afcertaining the proportions in which the parties ought to contribute; the penalties of the bonds afcertain the proportions."

In Cowell v. Edwards, 2 Bcf. 268, already cited, one of fix fureties having paid more than his proportion of the debt, brought an action against another for fo much, as, when added to what he had already paid, would make up one third of the whole, three of the other furetics being infolvent. The Court obferved that it might perhaps now be found too late, to hold that this action could not be maintained at law, though neither the infolvency of the principals, or of any of the co-fureties were proved; but that at all events the plaintiff could not be entitled to recover at law, more than one-fixth of the whole fum paid.

If a furety, after the bankruptcy of his principal, pays the debt, or if one of the two partners after the bankruptcy of the other pays the whole, he may bring an action to recover the amount of proportion, notwithstanding the bankrupt is difcharged by his certificate. Wright v. Hunter, 1 Eaft, 20.

But if a furety at the time of his becoming fuch, takes an exprefs fecurity, it is held that the promife implied by operation of law does not attach. Toussaint v. Martinnant, 2 T. R. 100.

The last point difcuffed by Pothier, viz. whether when several perfons are condemned in folido, to pay another a fum of money on account of an action arifing ex delicto, he who ex delicto, he who pays the whole. can have an action against the others, received a determination, though in a very summary manner, in the cafe of Merryweather v. Nixon, 8 T. R. 186, in which a fum of money having been recovered against two defendants, in an action for an injury done to a mill, in which action was included a count introver for the machinery, one of the defendants, against whom the whole had been levied,

brought

brought an action against the other for a contribution of a moiety, as for fo much money paid to his use. Mr. Baron Thomson, before whom the caufe was tried, being of opinion that no contribution could by law be claimed as between joint wrong-doers, and confequently that this action upon an implied affumpfit, could not be maintained on the mere ground that the plaintiff had alone paid the money, which had been recovered against him and the other defendant in that action, and a non-fuit having been entered upon this opinion, Lord Kenyon upon an application to fet it afide faid, there could be no doubt but that the non-fuit was proper; that he had never before heard of fuch an action having been brought, where the former recovery was for a tort. That the diftinction was clear between this cafe, and that of a joint judgment against feveral defendants, in an action of affumpfit, and that this decifion would not affect cafes of indemnity, where one man employed another to do acts, not unlawful in themfelves, for the purpose of afferting a right; and the Court refufed a rule to fhew caufe.

The cafe of Philips v. Biggs, Hardr. 164, was mentioned by Law for the defendant, as the only cafe to be found in the books in which the point had been raifed; but it did not appear what was ultimately done upon it.

This cafe, fo peremptorily decided as not to be allowed even the honour of a deliberate confideration, may perhaps be held to have fettled the law upon the subject, but it must be a matter of regret to see an adjudication fo pofitively made, which is fo manifeftly contrary to what every man muft feel to be the real principles of juftice, efpecially when it was not called for by any imperious authority of law. Nothing can be more obvious than the preference due to the French law (adopting the principle of equity, which does not allow one of the co-debtors to enjoy at the expence of another, the liberation from a debt for which they are equally liable), over the fcrupulous principles of the Roman jurists, which did not give the debtor who had paid the whole to have any recourse against the others. Though the original foundation of the demand is an injury, by which no man car. acquire to himself a right, the obligation arifing from the judgment into which the caufe of action for the injury is converted, has, in every other refpect, the character and properties of a debt, and the obligation of contribution is founded upon the general principles, fo accurately stated by the Lord Chief Baron Eyre, in the cafe of Deering v. Lord Winchelsea, by which all who are equally liable to a common demand, ought equally to fuftain the burthen of discharging it.

NUM

NUMBER XII.

(Referred to, Vol. I. p. 204.)

On Penal Obligations.

The Chapter of Pothier on penal obligations, appears to be wholly referable to cafes in which there is a diftinct and abfolute agreement, independent of the penalty; and upon failure of which the penalty as being merely acceffary, becomes neceffarily void; the existence of some other agreement, whether valid or otherwise, being conftantly affumed.

The cafe of a bond in a given fum of money, with a condition to vacate the fame upon a certain event, (which in England is a common inftrument,) may in fome refpects fall under a different confideration; for a failure in the subject of the condition does not neceffarily induce an insufficiency in the obligation.

We have feen in the Notes to the Chapter on Conditions, that an impossibility in the condition does not defeat the obligation; but in point of law, the engagement is abfolute as if no condition had been added; on the other hand, if there is any thing illegal in the object of the contract, the obligation and condition are equally void. Where the condition refers to, and is intended to enforce another agreement, I conceive that the confequences ftated by Pothier, will in general apply in this country where a bond was for the performance of the covenants in a deed, and these related to a term of years which was held to be void in law, it was urged that the condition was fingle; for if the condition refers to a thing which does not exift, it is the fame as if there was no condition; to which the court inclined; but afterwards it was held, that as the covenant and obligation were both for the corroboration of a grant which was void, they were void also. 1. Lev. 45. In a cafe which occur red a fhort time before, the condition of a bond was to perform the covenants in an indenture, and the defendant having pleaded that there were no covenants in the indenture, the plaintiff had judgment; because if there were no covenants in the indenture the obligation was fingle. 1 Lev. 3. These cafes of an obligation being held fingle, do not occur in modern practice; and a court of equity would probably relieve against the effects of them, except fo far as they were intended to inforce a real contract, and were fully intended to constitute an actual debt.

A bond with a penalty may in equity be confidered as the evidence of an agreement, and the execution of it enforced according

VOL. II.