The opinion of the Court was delivered by
Rogers, J.In the case of Irvine v. The Lumbermen’s Bank, decided at this term, there was no judgment and execution; but here a judgment was rendered, an execution issued, and a return of nulla bona. The defendant also gave in evidence a bill in chancery, filed by Benham, in whose favour the judgment was *214rendered against Lowry and others, and an injunction enjoining Lowry from paying any money he may be indebted to the bank. But, notwithstanding this difference in the circumstances, we are of opinion they come within the same principle. To entitle a garnishee to a plea in bar, it must appear that he has been compelled to pay'the money attached in his hands, or what is the same thing, that an execution has been executed by seizure and levy on his property. We acknowledge the principle of comity between nations by putting citizens of other states on the same footing with citizens of this state. The defendant has neither paid the money, nor is it certain that he will be compelled to pay any thing, nor has his property been taken in execution. It would, therefore, be unjust to permit him to plead the proceedings in New York in bar, although it would be competent for him to protect himself by a plea in abatement.
Next, as to the Seward drafts. The bank entered into the following arrangement with William H. Seward:
“ The Lumbermen’s Bank at Warren, Pa., proffers to William H. Seward to give drafts on Philadelphia, payable four months from date, Ñith sixty days’ interest, on receipt of the usual notice, for all their office notes received by him in the regular course of business. This arrangement may be discontinued at the request of either party on notice.
“ Robert Falconer, President.
“ Warren, September 21 st, 1837.”
William H. Seward, who was the agent for the Holland Land Company, in the county of Chautauque, and who the bank was desirous should receive their notes in payment for lands, thereby creating a local currency in their notes, accepted the proposition, upon the following guaranty:
“We, the undersigned, guarantee the payment of all drafts which may be given in pursuance of the above arrangement.
“ Josiah Hall, Guy C. Irvine, N. A. Lowry.”
. Afterwards several drafts were drawn, amounting in the whole to upwards of $4000. These drafts were regularly protested for non-payment, and $3200 was paid by N. A. Lowry. This the defendant insists upon as a set-off to the plaintiff’s demand. For the purpose of explaining or rebutting this evidence of payment, the plaintiff proposed to prove that the drafts referred to as Seward’s drafts have been paid by the bank to Hall, Irvine, and Lowry, or either of them. The defendant objected to any evidence showing payments to Irvine and Hall; but the objection was overruled.
The plaintiff then proved that on a settlement between the bank and Irvine, Irvine represented that he was bound to pay the *215drafts, and claimed a credit on it, -which was allowed, either in whole or in part.
The defendant then requested the court to instruct the jury that if the plaintiff gave Mr Irvine credit upon the books, as before testified by Mr Falconer, to the amount of $3200, for the purpose of paying the drafts in favour of Seward, and they were not paid by him, (Irvine,) it cannot prejudice the right of the defendant to his set-off in this suit for the amount paid by him to Seward upon presentation and demand of the draft as testified by Seward. The same point arises on the bill of exceptions, and the refusal of the court to charge as they were requested. The question is, whether a payment by one of two or inore joint guarantors or sureties enures to the benefit of the co-guarantors or sureties. In Gould v. Gould, (8 Cow. 168), it is ruled that joint sureties paying money for their principal should yet sue severally to recover the money paid. So if several persons become surety for another, and one surety pays the whole, he may recover against the others their aliquot shares. 2 Bos. & Pull. 268; 8 Term. Rep. 319. But where several sureties pay the debt, they cannot jointly sue the other sureties for reimbursement. 3 Bos. & Pull. 235; 2 Term. Rep. 282.
If there are several defendants in an action ex contractu, and the plaintiff recovers judgment against them, and one pays the whole demand, the law gives him an action for money paid against the others for contribution. The rule seems to- be otherwise in the case of a judgment against several in an action of tort. 8 Term, Rep. 186; 1 Camp. 343, 345. It would seem, that where money which two or more sureties pay for the principal, is raised on their joint credit, or paid from a joint fund, the proper remedy for a reimbursement is a joint action against the principal. 5 East 225; 3 N. Ham. Rep. 366; 3 Greenl. 107. The right to sue jointly does not arise from a joint liability, but from a joint payment, where the money is raised on a joint credit or paid out of a joint fund. But where the payment is several, each must bring suit to recover the amount he has paid, and when one has paid the whole debt, he alone can maintain suit, because he claims as the creditor of his principal, and of his co-sureties also. It would be obviously unjust to allow the principal to meet a claim arising from the payment of one, by proof of payment of it to another, who, although bound, had paid nothing. From these principles it results that the court erred in admitting proof of the payment to Irvine, and in so much of their charge as relates to this point. There is nothing in the case to bring it within the benefit of the exceptions. There is no allegation that the money paid by the defendant was raised on the. joint credit of Irvine and Lowry, or that it was paid out of a joint fund. If the money was paid by Lowry, as seems to be assumed by the court, although from some other testimony there may be doubt about it, he was entitled to *216a set-off to the amount paid, notwithstanding any subsequent settlement which may have taken place between Irvine and the plaintiff. If the bank paid the money to Irvine, it was a mispayment, which cannot prejudice the rights of the defendant. Many of the other errors have been ruled in Irvine v. The Lumbermen’s Bank (ante 190), and as no general principle is involved, I shall content myself with observing that they have not been sustained.
Judgment reversed, and a venire de novo awarded.