The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1881-02-24
VOLUME Xiv.

8 Ross Leading Cases, 90, it was held by
| the House of Lords that he was entitled to
frank" for only half.
/ Ia this case the solvent surety did not
( pay, but the creditor, in the exercise OF his
/ undoubted right, proved his whole claim
against the insolvent estate and realized
| from it less than one-haf OF 1t; and the
precise question is, whether the lDsolvent
estate is entitled as against the estate of the
cO-surety, to be relieved from the burden of
/ the one-balf of the liability.
/ Equality of burden was the obligation az
/ between the two sureties. One who paid
1 less than the half which his relation to his
o-surety made it his duty to pay, would
not have a right to call on his cO-surety for
contribution. If the surety, whose estate
is insolvent, and in behalf of the creditors
Of which this suit is brought, had lived,
and paid less than his half of the debt, he
wonld not have had right of action against
the other surety. Certainly his admins
traitor cannot have any greater claim than
the intestate would have had and we approve
the view expressed by the Supreme Court
of New Hampshire in the case of Fletcher q.
GrOrer, IL n. II. 1868, as follows: eve
however are not aware ofany principle upon
which it can reasonably be held, that the
administrators of deceased persons, or their
creditors, can derive greater or other bene-
fits from their contracts with or the equita
bic relations in which they may have stood
while living to other persons, than the
deceased would be entitled to, if still
living"
We are quite sure that, if the solvent es>
tate had paid the debt, it would have been
entitled to prove only one>half of it against
the other, and to receive dividend on the
half; but as the creditor got less than half
of the claim from the insolvent estate, no
right exists in it to visit on the estate of the
other surety the loss it would have had to
bear if the creditor had had resorted to it
in the first instance ACKNOWLEDGMENT. 1t
is fortunate that through action of the credit
or justice was effected as far as possible by OBJ
tanning from the insolvent estate dividend
on the whole demand. The creditors of the
insolvent estate have no just cause of COM
plant because of this. Their debtJr, at the
time of his death, owed the whole debt as to
the creditor, and the half of it as to his CO.
surety. Had he lived, so much of his es-
tate as was necessary to pay half of the debt
would have been required for it. That would
have subtracted from his ability to meet
their demands against him. They have |
not been injured by the dividend on the |
whole. The otner surety's estate has borne |
its full share of the joint burden, and more. |
The insolvent estate has not met its full re-
sponsibility, but because Of the requirement |
Of pro rata distribution of assets among |
it is relieved from paying more.
To allow the recovery sought by this suit, |
would be to impose on the solvent surety |
more than his just proportion of the common |
for the benefit of creditors of the |
nsolvent surety, who, because of the insult
fciency of estate, was not able to meet its
lust proportion of the debt. The misfortunes
Of the creditors of the insolvent must be
borne by themselves, and not visited on the
solvent party whose estate has contributed
more than between the two sureties, it
vas under obligation to pay.
Decree affirmed.
T. w White, for appellant.
Hall & Booth, contra.
ITO be reported.
Chalmers, C. j. having been consulted while
It the bar, took part in this case.