
    RAYBURN DOUGLASS v. DAVID WILSON, ADM’R.
    Jackson,
    September Term, 1875.
    SUBETY. May pay liability without judgment and sue co-surety for contribution.
    A surety on a guardian bond may, before the rendition of judgment against him, or beipre suit, pay off the liability and sue his co-surety for contribution.
    Cited with approval: State v. Blakemore, 7 Heis., 651, 652.
   Deaderick, J.,

delivered tbe opinon of tbe court:

Complainant was joint surety with intestate of defendant on a guardian bond, and as such was sued alone upon said bond. Pending tbe suit, be compromised, and paid $331, tbe amount fixed as due from tbe guardian, bis. principal, who, it was alleged, was dead, leaving, bis estate, as believed, insolvent.

The bill is filed to enforce contribution from tbe administrator of bis co-surety, and was demurred to on tbe ground that tbe payment was voluntary, and no judgment has been rendered against complainant previous to tbe payment, and that complainant should have proceeded in tbe first instance against tbe estate of bis principal.

The chancellor sustained tbe demurrer and dismissed tbe bill, from which complainant has appealed to this court.

In [State v. Blakemore], 7 Heis., 651-2, it was held that a co-surety need not wait to be sued if be is legally bound to pay tbe debt, but when tbe debt is due, to save costs and expenses, be may pay it and bave contribution.

In this case suit was. brought, and to save expense, complainant paid tbe debt, and if, upon examination, it turns out that be paid only so much as be was legally bound to pay, be would be entitled to maintain bis bill for contribution against one bound with him as co-surety, and bave a decree for one-balf of what be bad rightfully paid.

Tbe chancellor’s decree will be reversed, and the cause remanded for answer. Defendant will pay the costs of this court.  