Cary v. Holmes

Chapman, J. It is held by the courts of common law in England that when one surety pays the whole debt, he may have an action against each of his co-sureties for his aliquot part of the debt, without regard to the insolvency of any of his co-sureties; and that this is the limitation of the liability of the co-sureties. Cowell v. Edwards, 2 Bos. & Pul. 268. Browne v. Lee, 6 B. & C. 689. Batard v. Hawes, 2 El. & Bl. 287. And the same doctrine is held in this state. Brigden v. Cheever, 10 Mass. 454. Wood v. Leland, 22 Pick. 503. But in all these cases the judges admit that in chancery the doctrine is otherwise. It has been held there, from very early times, that where there are several co-sureties, and one of them pays the whole debt, his claim for contribution for the whole debt shall be against those of his co-sureties who are solvent. This is regarded as more just and reasonable than to compel him to look to his insolvent associates for their proportion or the debt. Peter v. Rich, 1 Rep. in Ch. 34. 1 Eq. Cas. Ab. 114. 1 Story Eq. Jur. § 496. In Connecticut, the courts, having chancery jurisdiction, have adopted this doctrine. Hyde v. Tracy, 2 Day, 491. In Vermont, it is held by the courts of common law. Mills v. Hyde, 19 Verm. 59. So in New Hampshire. Henderson v. McDuffee, 5 N. H. 38. It is adopted because it is said to be founded in natural equity, and because there is no court of chancery in that state. And the removal of some of the sureties from the state is held to have the same effect as if they were, insolvent. Boardman v. Paige, 11 N. H. 431. In this state, when the Rev. Sts. c. 70, § 16, gave a remedy for contribution between hens, devisees, &c. by bill in equity, the court adopted the chancery doctrine; and now that the court has full equity jurisdiction, there is no reason why it should not be adopted in all suits in equity. In the case last cited, the court say: “In a suit at law, the creditor could only recover against each his aliquot part, without regard to the fact [129] whether others were insolvent, or beyond the reach of process, or not. But it is clear that the legislature intended a broader and larger and more direct remedy for the creditor, throwing the risk of the absence or insolvency of some upon those who were liable; and this could be done only according to the course of proceedings in equity, where the facts of absence or insolvency can be ascertained, and the liability of the other parties established and apportioned.” 22 Pick. 506. The limited methods to which courts of law are confined in the ascertainment of facts and in the adaptation of remedies to the circumstances of such case may be regarded as a just ground for the distinction which they have established. But were it not for this difficulty, they might well have adopted the chancery doctrine.; for whether the right to contribution be regarded as founded in natural equity or implied contract, it may be so extended as to make sureties mutually liable for the solvency of co-sureties as well as for the solvency of the principal. In this case, the parties are members of a corporation, who are personally liable for its debts, under the Rev. Sts. c. 38, § 16, and the plaintiff alleges that he has been compelled to pay the debt for which he seeks contribution. The remedy given by the thirty-second section of that chapter against the other stockholders is by bill in equity ; and the recovery must have been intended to be according to the established doctrine in equity. It is admitted by the demurrer that the suit is against all the stockholders who are solvent and within the jurisdiction of the court. The demurrer must therefore be overruled. Demurrer overruled.