[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 61 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 63 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 65 The plaintiff and defendant were sureties in a replevin bond for Mahoney and Trull, conditioned, among other things, for the payment to the defendants in the replevin suit "of all such sums as might by them be recovered against Mahoney and Trull in that suit." The bond was executed in 1837. Rogers, the defendant in this suit, presented his petition in 1842, and obtained his discharge in 1843. The discharge operated upon "all debts, contracts and other engagements of the bankrupt, provable under the act." The 5th section of the bankrupt act provides, "that all persons having uncertain or contingent demands against such bankrupt, shall have a right to come in and prove such debts or claims, and shall have a right when their debts and claims become absolute, to have the same allowed to them." Ten years after the execution of the bond, and five after the presentation by Rogers of his petition, the defendants in the replevin suit, recovered judgment against Mahoney and Trull for over $1300, which Tobias, the plaintiff in this action was compelled to pay; and he now brings this suit against Rogers, his co-surety in the replevin bond, for contribution *Page 66
The effect of the discharge was to exonerate Rogers from his obligation incurred to the defendants in the replevin suit, by his execution of the bond in their favor, as one of the sureties of Mahoney and Trull. His liability as a co-obligor with the plaintiff was extinguished by operation of law; and from that moment he ceased to be co-surety with him for a common liability or a common principal. Now if the right to contribution results from a general principle of equity, that sureties in æqualijure must bear the common burden equally, and that it will be enforced whenever they are bound for a principal debtor in relation to one and the same transaction, as determined by the supreme court in Norton v. Coons (3 Den., 130), and by this court, in effect, in Barry v. Ransom (2 Kernan, 462), then it follows, that all claim to it ceases when that obligation is canceled, either by the act of the parties or by operation of law. The defendants in the replevin suit could have released one of the sureties with the assent of the other, leaving the latter sole guarantor of the performance of the contract of the principal. What the parties could do by agreement the law has done without it. When the sureties contracted for their principal, they knew that the national legislature could, in the case that has arisen, discharge either of them from the obligation thereby assumed, and that the right of contribution would cease with the liability to which it was antecedent. If the plaintiff is without remedy, it is by an act of the law to which he, in common with every other citizen, is presumed to have assented.
Contribution is not founded upon, although it may be modified by contract. The right to it is as complete in the case where the sureties are unknown to each other, as in any other. The law following equity will imply a promise to contribute, in order to afford a remedy. But as this is in most instances a fiction, in aid of an equitable right, it will never be tolerated where the relation upon which the equity is founded is wanting. Such is this case. The liability *Page 67 of the defendant upon the replevin bond, was discharged four years before the suit by the obligees against the plaintiff; subsequent to that time, the plaintiff and defendant have never stood in æquali jure, in reference to the obligation of their principal. The burden, which pressed with its whole weight upon the plaintiff, was removed from the defendant by aid of the bankrupt law. When the former paid the judgment recovered upon the replevin bond, it was as sole surety for Mahoney and Trull, and not as co-surety with the defendant.
The plaintiff executed the bond at the request and for the benefit of Mahoney and Trull, and paid the debt secured by it for their use, and not for the use of the defendant as to the whole or any part of the sum advanced. (6 M. W., 167.) No assumpsit arises until the co-surety has paid more than his proportion, even by way of furnishing a legal remedy. (Davies v.Humphreys, 6 M. W., 153.)
I think the judgment of the supreme court should be affirmed, upon the ground that when the money was paid by the plaintiff, the relation of co-surety did not exist between him and the defendant; and consequently no action, either at law or in equity, founded on that relation, can be maintained.
DENIO, JOHNSON, CRIPPEN and MARVIN, Js., concurred in the foregoing opinion.