The law is well settled, that a surety paying the debt of the principal, can compel contribution in this form of action. This right to contribution, it is said, does not arise from contract, but springs from a principle of equity, that those who have a common burthen to bear, should contribute equally, and the whole burthen ought not to fall on one. See 2 Bos. & Pull. 270; 14 Ves. 35, 160; also, 9 Ala. Rep. 787.
If the right to contribution results from an equity, that each surety should bear his part of a common burthen, it surely ought to be rebutted by proof that no such equity exists in the particular case. In this case, if White were to sue Gully, the principal, for money paid, &c., and Gully could prove that White was indebted to him in a larger amount, for money advanced, White could not recover. What equity then, can there be in permitting White to recover of his co-security, for money paid, when he could not recover of his principal ? And as this suit must be maintained upon a principle of equity, we think any proof that will clearly rebut this equity, or show that ex equo et bona, the plaintiff ought not to recover, is admissible.
The court erred in rejecting this proof, and the cause is. reversed and remanded.