
    James Griffin vs. William Kelleher, executor.
    Essex.
    Nov. 2, 1881.
    Jan. 2, 1882.
    Morton & Allen, JJ., absent.
    A. induced B. to become a co-surety with him and another on the bond of a third person, by depositing with B. a certain sum of money “ with the agreement that B. should hold the same as collateral securely for his ultimate liability as a surety on said bond, and to indemnify him from any loss or cost arising out of such liability.” There was a breach of the bond, and the obligee brought an action against the principal and sureties, and obtained judgment against all the defendants. Execution issued on the judgment, which was partially satisfied from the proceeds of a sale of A.'s real estate, which had been attached in the action; and the balance due upon the execution, which was more than the sum deposited by A. with B., and amounted to more than one third' of the judgment, was afterwards paid by B. A. then brought an action against B., the declaration in which contained two counts, one for the sum deposited with B. as money lent, and the other for one third of the amount for which A.'s real estate was sold. There was no evidence that the third surety was insolvent. Held, that the action could not be maintained.
   Endicott, J.

This is an action by one surety on a bond against the executor of a co-surety for contribution. It appears from the facts found by the presiding judge, and stated in the bill of exceptions, that the plaintiff, Cornelius Kelleher the defendant’s testator, and Charles A. List, were sureties on a bond, in which Patrick C. Ahearn was principal. There was a breach of the bond, and the obligee brought an action against the principal and sureties, upon which judgment was obtained against all the defendants. Execution issued upon the judgment, which was satisfied to the extent of $542 from the proceeds of a sale of the real estate of the plaintiff Griffin, which had been duly attached in ■ the suit, and afterwards the balance due upon the execution, amounting to $432, was paid by the defendant’s testator. It also appears that the plaintiff, who was a brother-in-law of Patrick C. Ahearn, the principal on the" bond, solicited and induced the defendant’s testator to become a surety on the bond, “ by depositing with him the sum of $300, with the agreement that said Cornelius Kelleher should hold the same as collateral security for his, said Kelleher’s, ultimate liability as a surety on said bond, and to indemnify him from any loss or cost arising out of such liability.”

In the first count of the plaintiff’s declaration, he seeks to recover back the $300 thus, deposited with Kelleher, as money lent, and in the second count he seeks to recover one third of the $542 for which his real estate was sold.

J. C. Sanborn, for the plaintiff.

E. T. Burley, for the defendant.

The presiding judge properly ordered judgment for the defendant. The plaintiff cannot recover on his first count, because, under the finding of the court, the $800 was not lent, but was given to the defendant’s testator to indemnify him for any loss arising out of his liability as surety. The loss occurred, and he was obliged to pay on the execution a sum much larger than $300. Nor is the plaintiff entitled to recover on the second count. The general rule of law is, that, where one surety has paid the whole debt, he can recover from a co-surety in an action at law for contribution no more than an aliquot part of the whole debt, regard being had to the number of sureties, without regard to the solvency of the other sureties. If any of the co-sureties are insolvent, a larger proportion may be recovered in equity. As there were three sureties, the defendant’s testator would be liable at law to a co-surety only for one third of the sum recovered on the judgment. Brigden v. Cheever, 10 Mass. 450, 454. Chaffee v. Jones, 19 Pick. 260, 265. Wood v. Leland, 22 Pick. 503, 506. Cary v. Holmes, 16 Gray, 127. Cowell v. Edwards, 2 B. & P. 268. Browne v. Lee, 6 B. & C. 689. Batard v. Hawes, 2 El. & Bl. 287. Wright v. Hunter, 5 Ves. 792. Craythorne v. Swinburne, 14 Ves. 160. 1 Story Eq. Jur. § 496.

As Cornelius Kelleher had already paid, when this action was brought, more than one third of the whole debt, the plaintiff cannot maintain against his estate an action to recover one half of the sum paid by him in excess of one third of the whole debt. The plaintiff fails to show that the defendant is liable to him at law.

The fact that Kelleher received from the plaintiff indemnity, under the circumstances recited, for any loss which might arise on the bond, does not affect his liability to the plaintiff in this action. And in the view we take of the case, the evidence that the plaintiff had brought an action against List becomes immaterial. The case finds there was no evidence of the insolvency of List. Exceptions overruled.  