Hardell v. Carroll

90 Wis. 350 | Wis. | 1895

Cassoday, J.

This is not an action on the bond given by Swan as executor, as counsel for the defendant seem to-think. This being so, there was no necessity for obtaining any permission from the county court before commencing-the action; and secs. 4014, 4016, R. S., cited by counsel, have no application. “The right of contribution is an equity which springs up at the time two or more persons assume as to each other the relation of co-sureties for a common principal, and ripens into a cause of action when one of the sureties pays more than his proportion of the debt for which all were liable.” Baylies, Sur. & Guar. 317, ch. 15, § 1; Faurot v. Gates, 86 Wis. 575. Such contribution may be enforced in a suit at law as well as in equity. 1 Brandt, Sur. § 289. The facts alleged in the complaint negative the contention that the payment by the plaintiffs was voluntary. They only made payment after a demand had been made of them and they had been threatened with suit unless they paid forthwith.

By the Court.— The order of the circuit court is affirmed.