#### *David Aikin*v. *The Ex'rs. of Austin F. Peay.*

Where A. and B. were sureties of C. on a joint and several bond, and an action was brought against B. and C. as survivors, B. paid the debt; *held,*that B. could recover at law, against the executors of A, A’s aliquot part of what he (B.) had paid, as money paid to the use of the Executors.

The promise which the law implies, in the case of sureties, is not joint, but several. Each is liable to the others for his aliquot part only, and not for the part of any other of the sureties.

In this State, interest is allowed on money paid by one of several joint sureties beyond his aliquot part of the debt; although it would seem the rule is different in England.

*Before*Evans, J. *at*Fairfield, *Spring Term,*1850.

In the lifetime ot Austin F. Peay, he and David Aiken were the sureties of one Nathaniel Ford, to John Kirkpatrick & Co. on a bond for upwards of $3000. After the death of Peay, a judgment was recovered against Ford and Aiken, as survivors. Ford’s property was sold, and after paying the older cases, there was a balance applied ‘to this case — Aiken paid it, and this action was to recover of the defendants, as executors, the half of what Aiken had paid on account of this securityship to Kirkpatrick. It appeared that, in some transactions between Ford and Aiken, Aiken received the sum of $1541 41, for which he gave a receipt, promising to pay that sum to an execution in the Sheriff’s office, of Mc-Mahan v. Ford and others. This case of McMahan was older than the case of Kirkpatrick above stated. The amount of this case was upwards of $2500, and if the money receiv*16ed by Aiken was applied to it, it would be reduced to $960, or thereabouts. But Ford was indebted to Aiken, and he refused to pay the 'money received as above stated, contending he had a right to apply it to the debt which Ford owed him. The defendant, Nicholas Peay, became the assignee of McMahan’s judgment, and got possession of Aiken’s receipt to Ford. Aiken, at first, promised Peay to pay the money according to his receipt. He afterwards refused — whereupon, Peay sued him and recovered. After the recovery. Aiken paid the amount to,the sheriff.

Before this case was decided between'Aiken and Peay, as to whether Aiken should pay the money he received from Ford to the McMahan case, the sheriff made a statement of the case against Ford. From this, it appeared that the cases older than Kirkpatrick’s, including the whole amount of the McMahan case, amounted to $12,702 76, and the sales of Ford’s property, to $13,973 31, which left $1270 55, to bé applied to the case of John Kirkpatrick & Co. This left unpaid $2038 79 ; one-half of this, and the cost, Aiken paid to the sheriff, and there was an understanding between N. A. Peay, the executor of Austin F. Peay, who was the assignee, also of the Kirkpatrick case, and the sheriff, that the other half was tobe paid in the settlement between them of Ford’s affairs, but no settlement has ever been made.

When the recovery was had by Peay against Aiken of the receipt, which he had given to- Ford, the amount of the McMahan *fi. fa.*was thus reduced from $2537 60, to $966-41, and the result was, that instead of $1270 55, there was a balance of the sales of Ford’s property applicable to the case of Kirkpatrick of $2893 90, leaving a balance to be paid by Aiken of about $590. But he had paid more than $1000.

The above statement will present an accurate view of the facts as they were disclosed on the trial.

The Circuit Judge charged the jury as follows:

1. If one of two sureties pay the debt, he may have his action against his co-surety to recover half of what he has paid; or if the co-surety died before judgment, he may sue his legal representatives at law for contribution. He overruled a motion for a nonsuit on this ground.

2. That Aiken could recover only half of what was really due on the Kirkpatrick execution. What he had overpaid, he had no right to recover of the executors of Peay.

3. That if the executors of Peay had actually paid to the sheriff their testator’s half of the debt, and it had been paid over to N. A. Peay, the assignee, or it had been settled between him and the sheriff, then Aiken could not recover of them, because they would have paid- as well as he. But as there had been no settlement between N. A. Peay and Yongue, the sheriff, and the money paid by Aiken had entirely 'discharg*17ed the debt to Kirkpatrick, leaving nothing for the executors of Peay to pay, he thought Aiken could maintain his action, against them for contribution.

As to the form in which the plaintiff declared, whether for money paid by Aiken, or for money had and received, did not appear. His Honor presumed, however, that it was for money paid by Aiken, for their use as executors, and that such was the form.

4. That the plaintiff was entitléd to interest on the money paid by him from 'the time of payment, which1 was in conformity with oúr decisions.

The jury found a verdict in conformity with these directions.

The defendants moved the Court of Appeals for a nonsuit,, or a new trial, on the following grounds.

FOR A NONSUIT,

1. Because it does not appear from the evidence, that plaintiff paid any money for the defendanís,.execütors of A. F. Peay, deceased.

*2.*Because the liability 'of A. F. Peay on the Kirkpatrick bond, having been extinguished by his death, and the subsequent judgment recovered against Ford and Aiken, the remedy of Aiken, if he had any, was in Equity.

3. Because, -from'the-evidence, it appeared that if plaintiff was entitled to recover against A. F. Peay’s estate, it was for money he had received, *and not*for money paid.

Foil A NEW TRIAL.

1. Because there was not sufficient proof that N. A. Peay had received the proceeds of the McMahan executibn from sheriff Yongue. -

2. Because plaintiff had no right to contribution against A. F. Peay’s estate, having paid not more than his one-half of the amount due on the Kirkpatrick & Co. execution. ■ •

3.' Because plaintiff’s right to-recover rested on a presumption of law, which was negatived by the facts, viz: — that the executors of A. F. Peay had ' received the one-half of the money on the case of N. A. Peay v. David Aiken,- for the receipt of the McMahan case.

4. Because the verdict has given plaintiff interest on liis payment for the estate of A.-F. Peay, whereas, a surety can only recover-the amount actually paid, without interest.

5. Because the evidence, if it authorized a remedy against *18the estate of A. F. Peay, was for money had and received, an(j not for money paid.

6. Because the verdict was contrary to law.

*Boyce Sy*Black, for the motion.

*McDowell <Sy Boylston,*contra.

Curia, *per*Evans, J.

The questions which have been mainly discussed in this Court, and to which the attention of the Court has been particularly directed, are — 1st. Can the plaintiff call on the executors of Peay for contribution? and 2d. Can he recover interest? As to the other points made in the brief, they are considered as settled by the verdict.

1. As a general rule, there is no doubt that where two or more are sureties for a third person, and one has paid the debt, he is entitled to demand contribution from the others for whatever he has paid more than his aliquot part. This obligation is an implication of law arising out of their undertaking. It is well sustained by all the elementary writers, and the cases quoted by them. (Chitty on Contracts, 576, and the cases referred to.) But it has been argued that, because Peay died before Aiken paid the money, the remedy at law is gone, and the plaintiff has no remedy but in Equity. On joint contracts, if one of the obligors die, the remedy at law is only against the survivors. This principle is deduced from the nature of the contract, and from the fact that the executors of the deceased cannot be joined in an action with ■the surviving obligor. But the promise which the law implies ■in the case of sureties, is not joint but several. Each is liable to the others for his aliquot part only, and not for the part of any other of the sureties.

It would seem to follow from this, that where there are .three sureties, and one pays the debt, he cannot sue the others .jointly, but must sue severally, because, if he could, he might compel them to pay for each other, as the judgment would be against both, and any one of them might be compelled to pay • the whole. The death of Peay, therefore, does not impair the plaintiff’s legal right to sue. .The promise to contribute is implied from the relation of joint sureties, and at the time they became so. It was the promise of Austin F. Peay, and devolved on bis executors. The bond, in this case, is said to be joint and several, and if so, the objection has no foundation in fact. It would seem, from the authorities, that by the English law, interest is not allowed on money paid by one of several joint sureties. But we have adopted more liberal rules in relation to interest. In *Ohee'sborough and Campbeil*v. Hunter, a factor recovered interest on money advanced to his customer, in anticipation of produce to be forwarded. The Court say, in that case, it is the common case of money lent, and the plaintiffs are clearly entitled. The same *19was decided- in *Sollee and Warley*v. *Meuggy.*In a great variety of cases, to be iound in our reports, it has been held that where the indebtedness is founded on a money transaction, as where money is lent or advanced -for the use of another, orha.d and received for another’s use, interest was recoverable. 1 -

In this case, the executors of Peay were liable equally with Aiken, on the- promise of their testator; Aiken. paid 'his money in discharge of their liability ; it was -money paid for them, and they are bound to -repay it in discharge of their testator’s contract. - ■ ■ •

The motion must, therefore, be dismissed. "

Wardlaw, Frost, and Withers, JJ. concurred.

*Motion*refused.