The depositions in the cause being published, and it being ready for a hearing, the defendant had not the right, as a matter of course, to amend his answer, and the refusal of the Chancellor to permit the amendment, to be made, cannot therefore be reviewed in this court.
We need not enter upon the inquiry, whether the administrator could be compelled to retain in his hands that portion of the assets which may be allotted to him on the final settlement of the estate of his intestate, as it cannot be known until the final settlement and order of distribution, what that sum will be. It is very clear, however, that the complainant must be taken to have acted on behalf of his co-surety, as well as himself, in asserting his claim before the Orphans’ Court, for the money he has paid for his principal, whilst he is at the same time prosecuting a suit against his co-surety for contribution. The result of his obtaining a decree against the co-surety, will be, to make him equally interested with himself in the judgment which may be obtained in the Orphans’ Court, and being in his name, he will be a trustee for his co-surety for one half the amount.
The only debateable question in the case, is, whether the complainant has made such a payment of the debt of the principal, as will authorize him to proceed against his co-surety for contribution. In this case, it appears the complainant made a new contract with the Bank, the creditor, by paying a portion of the debt in money, and executing his note, with sureties provided by himself, for the residue ; upon the receipt of which the original debt was discharged, and the note given up to the complainant. This is such a payment as will authorize the surety to bring his action for contribution. [Robertson v. Maxcey, 6 Dana, 101; Weatherby v. Mann, 11 Johns. 518.] It cannot be doubted, that if he had compounded with the Bank, and discharged the original debt, with a less sum than the amount due, the agreement would inure to. the benefit of the co-surety. This re-*551suits from the fact, that the right to contribution does not arise from contract, but from equitable considerations, springing from the relation they bear to each other, and from the fact that they have a common interest, and a common burthen to bear. Any advantage, therefore, gained by one in the payment of the debt, must be for the benefit _of all. Here no advantage has been gained. The original debt is discharged by one surety, who has secured its payment to the satisfaction of the creditor, and this as it regards the other surety, is precisely equivalent to a payment in money. Decree affirmed.