brought against him.32 If action can be brought against the principal, though none would lie against the surety, or if the surety could defeat an action against him by pleading the statute of limitations, though he neglects to do so, he will be entitled to recover indemnity from the principal on paying the amount due.33 However, if no action could be brought against either the principal or surety, the surety, even if he pays the amount, cannot recover indemnity.31 Since the surety's cause of action does not accrue until he has paid the debt of his principal, the statute of limitations does not begin to run against his right to recover indemnity until such payment. The reason is that the action by the surety is not upon the instrument signed for the principal, but upon the implied promise of the principal to indemnify him from loss on account of becoming surety.35 One who has become surety without the request, consent, or knowledge of the principal cannot recover on an implied promise; but his rights are based upon the original obligation, and when that is barred by the statute he has no remedy.36

Contribution between Co-Sureties. As between sureties, the statute does not commence to run until one surety pays more than his share of the debt. If he pays it in installments, the statute begins to run from the date of each installment.37 The discharge of one of the joint debtors from his obligation to the creditor does not relieve such discharged debtor from liability to make contribution to a co-surety who has paid more than his proportion of the debt.38 This is true even though one surety kept the statute from becoming a bar as to himself by making partial payments, and the other surety.

32. Sibley v. McAllaster, Exectr. (1836) 8 N. H. 389; Braught v. Griffith et al. (1864) 16 Iowa 26; Marshall v. Hudson (1836) 9 Yerg. (Tenn.) 57: Hyde v. Miller (1899) 45 App. Div. (N. Y.) 396, affirmed (1901) 168 N. Y. 590, 60 N. E. 1113; Hooper v. Hooper (1895) 81 Md. 155, 31 Atl. 508. But see contra obiter in Auchampaugh, Admr. v. Schmidt (1886) 70 Iowa 642, 27 N. W. 805.

33. McClatchie v. Durham (1880) 44 Mich. 435, 7. N. W. 76; Shaw v. Loud (1815) 12 Mass. 447.

34. Hatchett v. Pegram (1869) 21 La. Ann. 722, 725.

35. Smith v. Pitts (1910) 167 Ala. 461, 52 So. 402; Bullock v. Campbell (1850) 9 Gill (Md.) 182; Kreidor v. Isenbice (1889) 123 Ind. 10, 23 N. E. 786. 36. Leslie v. Compton (1918) 103 Kansas 92, 172 Pac. 1015.

37. Bushnell v. Bushnell (1890) 77 Wis. 435, 46 N. W. 442; Faires v. Cockerell (1895) 88 Texas 428, 434, 31 S. W. 109.

38. Davies v. Humphreys (1840) 6 M. & W. 153; May v. Vann (1876) 15 Fla. 553, 557; Presler v. Stallworth (1861) 37 Ala. 402, 405; Hill v. Morse (1873) 61 Me. 541; Crosby v. Wyatt (1843) 23 Me. 156; Clapp v. Rice (1860) 15 Gray (Mass.) 557; Faires v. Cockerell supra note 37; Martin v. Frantz (1889) 127 Pa. 389, 18 Atl. 20; Frew v. Scoular (1917) 101 Neb. 131, 162 N. W. 496; Brandt "Suretyship and Guaranty" supra note 1, Sec. 321; Reeves v. Pulliam (1874) 54 Tenn. 119; Hard v. Mingle (1912) 206 N. Y. 179, 99 N. E. 542; Contra, Shelton v. Farmer (1872) 9 Bush (Ky.) 314; Cochran v. Walker's Exectrs. (1884) 82 Ky. 220.

40

was discharged. The latter is nevertheless liable to contribute.3" Even the failure of one surety to plead the statute as a defense to an action against him cannot defeat his right to enforce contribution against co-sureties; although payment without a suit, when the statute has barred the paying surety's liability, relieves his co-sureties from liability to make contribution. The payment in such a case makes the payor a mere volunteer. Similarly, if a surety pays a note which has been discharged by alteration, he cannot recover from his co-sureties, because he is a volunteer.42

The reason for allowing contribution, even though the defendant co-surety is immune from action by the creditor, is well set forth in the court's opinion in Camp v. Bostwick:43

"But the doctrine of contribution has its origin in the relation of co-sureties or other joint promisors in the same degree of obligation. It is not founded upon the contract of suretyship. . . . It is an equity which springs up at the time the relation of co-sureties is entered into, and ripens into a cause of action when one surety pays more than his proportion of the debt. . . . This equity, having once arisen between co-sureties, this reasonable expectation that each will bear his share of the burden is, as it were, a vested right in each, and remains for his protection until he is released from all his liability in excess of his ratable share of the burden. Neither the creditor, the principal, the statute of limitations, nor the death of a party, can take it away."

Conclusion. It is seen that when either the principal or surety makes a part payment or properly acknowledges the debt for which both are jointly responsible, English courts generally hold both are bound until the statute of limitations has again run. This is true whether or not the time has elapsed beyond which the statute says no action shall be brought. Not over a half-dozen American states now follow this view. The second view, which most of the states

39. Peaslee, Admr. v. Breed (1839) 10 N. H. 489.

40. Bright v. Lennon (1880) 83 N. C. 183; see also Hardell v. Carroll (1895) 90 Wis. 350.

41. Turner's Admr. v. Thom, Trustee (1893) 89 Va. 745, 17 S. E. 323; McLin v. Harvey (1910) 8 Ga. App. 360, 69 S. E. 123; Aldrich v. Aldrich (1883) 56 Vermont 324, 327.

Williston "Contracts" supra note 24, Sec. 1283, says:

"Accordingly if the statute of limitations has run in favor both of the principal and the surety, a payment thereafter by the surety cannot be recovered from the principal nor can contribution be recovered from a cosurety against whom the creditor no longer had at the time of the payment an enforcible right."

42. Davis v. Bauer (1884) 41 Oh. St. 257.

43. (1870) 20 Oh. St. 337, 346. But where the statute has run against the obligation, and also against the co-sureties, one surety who has been forced to pay cannot recover contribution. Williamson's Admr. v. Reeves Admr. (1846) 15 Ohio 572.

have adopted, is that one joint obligor cannot bind the others by any promise or part payment. The third view, adopted by the United States Supreme Court, is that an acknowledgment made by one joint promisor before the statute has become a bar extends the time within which action may be brought against all jointly liable. However, once the statute bars the action, the right to recover cannot be revived by any action by a joint promisor as against the others. Except as to themselves, guarantors and indorsers, not being joint obligors, can in no jurisdiction, by any act, extend the statute or revive a right once barred. A surety who pays the obligation of his principal may recover indemnity from him, or contribution from his co-sureties for any portion above his share. The statute of limitations begins to run in favor of the principal at the time the surety makes payment, and in favor of the co-sureties from the time the surety pays more than his share of the obligation.

WHY PICKWICK WAS GAOLED

BY WILLIAM RENWICK RIDDELL

A young Toronto barrister the other day raised the question, Why was Pickwick imprisoned? I attempted to answer the question; and it has occurred to me that others may have been puzzled in the same way and may conceivably be glad of the explanation. The celebrated action of Bardell v. Pickwick-probably the best known action in the world-was begun by writ of capias ad respondendum, August 28, 1830, the 'original writ' still theoretically the first process having for more than half a century been omitted except where outlawry was intended. Pickwick was not given the chance by the eminent firm of Dodson and Fogg, attorneys1 of His Majesty's courts of King's Bench and Common Pleas at Westminster and solicitors of the High Court of Chancery, to settle before action; but he received a letter from them when he was at the "Angel," Bury St. Edmunds, asking the name of his attorney in London who would accept service of the writ. That he should at once say that it was "a base conspiracy between these two grasping attorneys" was to be expected-no one likes to be sued and the lawyer is always blamed.

It was not intended actually to arrest the defendant-that could be done only on an affidavit made and filed in an action where the cause of action was originally at least fifteen pounds (except on bills of exchange and promissory notes).

The actual arrest was intended and effected in the well-known case of Weller v. Weller. The unfortunate if facetious Samuel Weller in all innocence borrowed twenty-five pounds from his father: that "unnat'ral wagabone" demanded its return, "five minits artervards"; Samuel refused, said "I von't pay" and cut up rough. Solomon Pell, an attorney whose practice lay in bankruptcy and who, though he had no fixed office, was a particular friend of the Lord Chancellorship's who would "be damned if Pell could not get anybody through the insolvent court," was consulted. Pell had "got brains like the frogs dispersed all over his body and reachin' to the wery tips of his fingers"; he seized the situation at once, "led the 1. "His Majesty's attorneys of the courts of King's Bench, etc.," as the reporter has it.

2. See the statutes (1811) 51 Geo. III C. 124 s. 1, (1817) 57 Geo. III C. 101.

elder Mr. Weller down to the Temple to swear to the affidavit of debt," which Pell's "boy with the assistance of the blue bag had drawn up on the spot." The "cruel pa" did not relent, the officer arrived and the defendant was without delay arrested and delivered into the custody of the Warden of the Fleet.

Pell's bill of costs must be considered most moderate-he received "three ten and one ten . . . five" for his services in incarcerating this "reg'lar prodigy son"-when one remembers another celebrated attorney, Mr. Quirk of Quirk, Gammon and Snap, who had "never been seen to shed a tear but once-when five-sixths of his little bill of costs, £196, 15s, 4d, was taxed off in an action on a bill of exchange for £13," or indeed Mr. Fogg himself, who in the action of Bullman v. Ramsey for £2, 10 made up a bill of £3, 5 even before declaration filed-of course it must be remembered that Fogg was essentially benevolent, for, "with a sweet smile on his face," he said (after refusing the amount as not enough): "It's a Christian act to do it for with his large

family and small income he'll be all the better for a good lesson against getting into debt"; and he "smiled so good naturedly as he went away that it was delightful to see him."

Samuel was wholly justified in insisting that there was to be "no vispering's to the Chancellorship, none o' them unconstitootional ways of doing it," and everything was quite regular; he could assure Pickwick that he was "a pris'ner . . . arrested this here wery arternoon for debt" at the instance of a man that "ull never let me out, till you go yourself."

But nothing of the kind occurred or was contemplated in Pickwick's case; he had to be served with a writ, unless an attorney accepted service and undertook to appear. Pickwick did not answer the letter of Dodson and Fogg of August 28, 1830, but came up to London, Thursday, September 2nd; and next day he called upon the attorneys at Freeman's Court, Cornhill; as he offered no terms, he was served with a copy of the writ, the original being shown him at the same time.

He used language much to be reprobated-actionable, indeedtoward and of these eminent practitioners; and he might well have got himself into an "action on the case for defamation." He left

3. In this Province, attorneys, solicitors and their clerks were allowed to carry only black bags; barristers (not K. C.'s), blue; K. C.'s, red; and judges, green bags.

4. Samuel Warren "Ten Thousand A-Year" cap. vi.