Sec 768

A surety who pays his principal's debt is entitled (supposing he has no security covering the debt) to come on his principal; and though this may be sustained on the ground that the principal when he obtains the surety's aid implicitly promises to reimburse, yet it may also be explained by the rule before us, that a person who as another's representative is required to make a payment, can recover that payment from the person represented.5 Hence, an accommodation signer of a bill of exchange who is compelled to pay, may recover the money he paid from the party whom he signed to accommodate.6

Same principle extended to members of associations.

Surety who pays principal's debt entitled to come on principal.

1 Dering V. Winchelsea, 2 B. & P. 270; Norton V. Coons, 3 Denio, 130.

2 Supra, sec 757; Tyrrell V. Washburn, 6 Allen, 466; see Bailey V. Macaulay, 13 Q. B. 115; Batard V. Hawes, 2 E. & B. 287; Boulter V. Peplow, 9 C. B. 493; Murray V. Bogert, 14 Johns. 318. As to stockholders of corporations, see Wincock V. Turpin, 96 Ill. 135.

3 Coburn V. Wheelock, 34 N. Y. 440.

4 Story's Eq. Jur. 12th ed. sec 504 et seq.; and see cases cited on partnership in sec 766.

5 Leake, 2d ed. 79, citing Toussaint V. Martinnant, 2 T. R. 105; Pownal V.

Ferrand, 6 B. & C. 439; Hall V. Smith, 5 How. U. S. 96; Smith V. Sayward, 5 Greenl. 504; Powers V. Nash, 37 Me. 322; Pearson V. Parker, 3 N. H. 366; Appleton V. Bascom, 3 Met. 169; Powell V. Smith, 8 Johns. 249; Ward V. Henry, 5 Conn. 596; Ainslie V. Wilson, 7 Cow. 662; Lowry V. Bank, 2 W. & S. 210; Gray V. Bowles, 1 DeV. & B. 437. In Pownal V. Ferrand an indorser of a bill of exchange, being sued by the holder, was held entitled to recover the money paid from the acceptor; see supra, sec 759 et seq.

6 Ibid.; Driver V. Burton, 17 Q. B. 989; see Gamsey V. Allen, 27 Me. 366.

Bail, also, can recover from the principal all expenses they have legitimately incurred in consequence of their obligation on his account.1 When, also, the surety of a surety, being legally bound so to do, pays the debt of the principal, the same rule applies, though the payment was made without a request from the principal.2 An administrator of a surety, paying personally the principal's debt, is also entitled to recover from the principal.3 - The right of action accrues from the time the money is paid,4 though the promise dates back to the time when the engagement of suretyship between the principal and the surety was made.5 - But a surety extinguishing a principal's debt in part, can only recover the sum of money that he has actually paid.6

Sec 769

A surety who receives money from the principal is obliged to share this money with his co-sureties; and where an action for contribution is brought by one surety against another, the plaintiif or defendant (as the case may be) is obliged to account for the sum thus received.7 The same rule has been held to apply to securities received.8 - Where a surety obtains from the principal debtor a security for the liability he has undertaken, he is bound to bring into hotch-pot, for the relief of his cosureties, any benefit which he receives under the security, though he originally bargained with the principal debtor that he should have the security, and though this bargain and the fact of the security having been given were unknown at the time to the co-sureties.9 Surety entitled to share payments from principal with cosurety.

1 Fisher V. Fallows, 5 Esp. 171.

2 Hall V. Smith, 5 How. U. S. 96.

3 Mowry V. Adams, 14 Mass. 327; Williams V. Moore, 9 Pick. 432.

4 Davies V. Humphreys, 6 M. & W. 153; Kearsley V. Cole, 16 M. & W. 128.

5 Batard V. Hawes, 2 E. & B. 287; Appleton V. Bascom, 3 Met. (Mass.) 169; Lowry V. Bank, 2 W. & S. 210; Dobyns V. McGovern, 15 Mo. 662.

6 Supra, sec 758; Parker V. U. S.,.

Peters C. C. 266; Morrison V. Berkey, 7 S. & R. 238; Pursel V. Ellis, 5 W. & S. 525.

7 Bachelder V. Fisk, 17 Mass. 464.

8 Theob. on Princ. & Sur. sec 283; 1 Story's Eq. Jur. sec 499; Story on Cont. sec 1152; but see Bowditch V. Green, 3 Met. 360; Himes V. Keller, 3 W. & S. 401; see supra, sec 765.

9 Steel V. Dixon, L. R. 17 Ch. D. 825.