1. We think this case will be most conveniently considered by ascertaining the general *927principles which should govern it, rather than to separately examine the many assignments of error.
The statute under which the motion was made allows the recovery by one surety, when sued by a creditor, against another not sued, and directs, “ that it shall be lawful for the person thus sued to notify in writing, his co-surety or sureties, or either or any of them, of the pending of the suit; and it shall be the duty of the court, &c., before which the said suit is to be tried, on proof being made at the trial that notice in writing has been given to said co-surety or sureties, and that the said parties are sureties, to enter up judgment in favor of the surety sued, against such co-surety or sureties, each thus notified as aforesaid, for the proportion of said debt or demand, with costs, which such co-surety or sureties should pay; that is to say, in case there is but one co-surety, then judgment shall be rendered in favor of the surety sued, for one half of said debt or demand, and costs; if there are two co-sureties of the person sued, then for one third; and at that rate according to the number of co-sureties : Provided, however, that if any of said co-sureties are insolvent, the surety thus sued as aforesaid, may on said motion, to be made as above, recover a judgment against said co-snrety or sureties, thus to be notified, the proportion which said co-surety or sureties should pay, if such insolvent co-surety or sureties were not bound for said debt or demand.” [Dig. 533, <§> 12.] This act is so precise as scarcely to present room for construction, and it is difiicult to conceive how the court below could, in view of it, have arrived at the conclusion the plaintiff was entitled to judgment against his co-surety for more than one half the sum recovered from him. The circumstance that the principal debtor had previously deposited property in his hands for the common indemnity of all the sureties, does not, in our opinion, warrant the court in this summary mode of proceeding, from giving judgment for a different portion than the statute directs. In order to compel the defendant to make the proper application of this property, or the funds derived from it, the plaintiff has other and appropriate means to which he must resort.
*9282. Having ascertained a substantial error in the proceedings, we must go further, and see if sufficient matter appears to'enable us to correct the judgment, in the event the other-errors alledged at the trial are not sufficient to work its reversal, and to do this, the whole statute must be construed. It is scarcely possible the intention of this legislation could be to allow the surety moving against another surety, to collect the sum recovered until he had himself paid -it to the creditor, unless as a means to compel the other surety to relieve him from the burthen of paying a just proportion of the common debt. The surety proceeded against would at all times have it in his power to restrain the judgment against himself by paying the common creditor the sum for which it was rendered. And consequently the evil is more apparent than real, when it is apprehended the surety would pocket the money, and leave the common debt unpaid. If the surety was compelled to pay the common debt before he could sue execution on this statutory judgment, he might well nigh be ruined by the delay. It is this view which probably induced the enactment, and thus permit the execution to run at the instance of the surety, so as to leave in his hands the power to compel his co-surety to make payment either to himself or the common creditor, and if he will not relieve himself by the latter course, we incline to think he would not be heard to restrain the latter, on the apprehension that the money, if paid to him, would not be applied to the surety debt. There seems therefore no reason for appending any condition to the judgment; and if by any possibility the one added to this could affect the rights of the defendant, it would be here corrected. It is unnecessary to consider what its effect is in the conclusion we shall arrive at.
3. Another important question in the construction of this statute is, whether a judgment can be given on the motion of the surety, until one has been rendered against him in favor of the creditor*- The statute, although it does not expressly declare this condition, evidently implies it, when it prescribes, that on proof being made at the trial, that notice, &c. has been given, judgment shall be entered against the one surety in favor of the other. The trial which is here spoken *929of, evidently is that of the suit between the common creditor and the surety sued by him. The importance of this proof, and its connection with the right of the plaintiff to recover upon motion, will be considered in another point in the case.
4. It will be seen the statute provides no mode by which questions of fact shall be determined between the sureties themselves, yet it cannot be supposed the intention was to cut off the defendant from the right to investigate such questions. We think for this reason the act must be construed as defining what proof shall be made when the defendant to the motion, does not demand or tender an issue. When he does this, there seems to be no valid reason why the proof should first be made at the trial of the suit instituted by the creditor, and afterwards on the trial of issues growing out of the specific motion. In the present case, it appears the defendant contested the right of the plaintiff to a recovery, and tendered several issues. This, in our judgment, relieved the other party from all necessity to prove the particular matters required by the statute, in the trial of the suit of the creditor, and brings the case within the influence of the decisions of this court, which require in all summary motions, that the judgment of the court shall be sustained by the record, so far as to show the circumstances which confer the jurisdiction, whether the judgment is by default or otherwise, but leaving the facts, when an issue is formed, to be determined by the verdict, as in other cases. [Curry v. Bank of Mobile, 8 Por. 370; 5 Ala. 26.]
5. Looking then to the statute, it will be seen the circumstances which are necessary to confer jurisdiction are — 1. That a suit shall be pending against some person who is a surety to a bill, note, bond, covenant, or other instrument in writing. 2. That he shall have notified his co-surety, or sureties, in writing, of the pendency of the suit. 3. That judgment has been rendered in the creditor’s suit, and for what sum. 4. In judgments entered against the co-surety by default — .that proof was made at the trial of the principal cause, that notice in writing had been given to the co-surety, and also that the parties were sureties. And, 5. When *930the judgment is for more than an aliquot portion of the debt —that the other co-sureties are insolvent to the number necessary to support the párticular sum for which judgment is given.
6. Although there is much immaterial matter contained in this entry/it will be found to contain substantially the recital of all the necessary allegations as indicated above, except the fourth, which became immaterial in consequence of the issue between the parties. The only point on which we are compelled to rely upon an inference is, that the suit by the common creditor was pending when notice of the motion was given by the plaintiff to his co-surety. With respect to this fact, the entry states that'judgment was given on verdict, on the 12th November, 1846, during the same term at which the motion was tried. In view of the ordinary course of practice, we think the necessary intendment must be, that this suit was pending when the notice was given.
7. There is only one other matter in connection with the motion, to which it is necessary to advert. It will be seen the common creditor when suit was pending, had included two of the sureties in it, and that one of them was shown to be insolvent, as well as all the other sureties to the bond, except the parties to this motion. It may be questionable if the plaintiff, under these circumstances is precisely within the letter of the statute ; but we think he is clearly within its spirit and intention, as the object evidently is to give any surety the right to compel any other co-surety not sued, to contribute to the common burthen, according to the rule in equity, and cannot be defeated by the circumstance that the creditor has joined in his action another surety, who in point of fact is insolvent.
8. Having thus disposed of the construction of the statute, we shall apply ourselves to the bill of exceptions. There can be no doubt the statute intended, in the absence of collusion or fraud, to make the creditor’s judgment against the one surety conclusive in the motion by him against his co-surety whenever the notice in writing of the pendency of the suit, and the fact the parties were sureties was shown, and this would seem the rule in actions at common law. In Cave v. Burns, 6 Ala. Rep. 780, we said, with reference to *931the obligations arising between sureties, that “ each impliedly agrees with the other, to protect him to the extent of the joint undertaking against the consequences arising out of the failure of the principal.” They stand to each other then in the relation of indemnitors, and when one has notice of the suit against the other, if the one not sued omits to furnish the other with the information necessary for the common defence, he is in no condition to complain of injury, for his contract is to bear the burthen jointly and equally. The rule obtains in several of the States, that even without notice a judgment against the one to be indemnified is prima facie evidence, although the better rule is said to be, that notice is essential. [See cases collected in Cowan & Hill’s Notes, 817.]
9. But although the judgment itself is conclusive, it will not follow there is error when the endeavor is to make the case by regular extrinsic proof. This we presume was the effort when the judgment in favor.of Roberts, as administrator de bonis non of Coolidge against the sheriff, as the former administrator was offered as evidence. This, coupled with proof of a devastavit of the’ assets, would show a breach of official duty, and thus fix the liability of the sureties to the extent of the assets thus wasted. In this view the evidence was admissible, though it certainly appears to be entirely unnecessary.
10. The remaining question, upon the charge of the court was ruled at least as favorable for the defendant as the law will allow. If, as we have before said, the judgment of the creditor, after notice of the pendency of the suit, is conclusive upon the surety not sued, there is an end of the question, because the defendant did not take the necessary steps then to induce his co-surety to interpose the defence. In point of fact, however, the defence seems not then to have arisen, or rather the suit was commenced by the creditor against the plaintiff before the statute had run.
Under these circumstances, the statute creates no bar as between these parties. The contract between the sureties, as we have already seen, is one for mutual protection and indemnity, consequently there can be no breach until a payment has been made by one on the common account. In McBroom v. Governor, 6 Porter, 43, we say with reference *932to the bar of the statute of non claim, that the rights of a surety as against the estate of his principal, does not accrue until the payment by him on account of the secured debt. We think the law is the same between co-sureties. There was therefore in our judgment, no error in the instructions of the court, or its refusal to charge as requested. This disposes of the entire case, for although several of the assignments of error are not specifically noticed, it will be seen they call in question matters which received no notice at the trial, or do not arise in the case. The result of our opinion is, that the judgment should be reversed, because it is entered for the wrong sum, but as the whole record, or rather the judgment entry, furnishes the necessary material to enter the proper judgment, it will be rendered here for $3,500, with interest from the 12th November, 1846, and costs, unless the plaintiff shall elect to have the cause remanded. Judgment accordingly.