TABLE OF TITLES AND DEFINITIONS. See Index for numerous sub-titles and definitions contained in the notes. COURT-MARTIAL, see Military Law COURTESY, see CURTESY COURTS, 447 COUSIN, 462 COVENANT, ACTION OF, 463 Cover, 570 Covin, 570 Cow, see Animals Craft, 571 Crank, 571 CRIMINAL CONVERSATION, see Adu! tery CRIMINAL LAW, 641 CRIMINAL PROCEDURE, 729 Cropper, 887 CROPS, 887 COVERTURE, see HUSBAND AND WIFE Cross-bill, 905 Create, 571 Creature, 572 Credible, Credibility, see Witness Credit, 572 Creditor, 573 CREDITOR'S BILL, 573 Creek, 581 CREMATION, see Dead Body Crew, 581 Crib, 582 CRIMINAL CONSPIRACY, 582 CROSS-EXAMINATION, see Trial; Wit ness CROSSINGS, 903 CRUELTY TO ANIMALS, see Animals CUMULATIVE SENTENCE, 953 CUMULATIVE VOTING, 954 CURTESY, 958 CURTILAGE, see Arson; Burglary CUSTOM, see Usage and Custom CUSTOM DUTIES, see Revenue Laws Daily, 970 DAM, 971 Damage, 989 viii THE AMERICAN AND ENGLISH ENCYCLOPEDIA OF LAW. CONTRARY. See notes I and 2. CONTRIBUTION. See also Co-TENANCY; CORPORATIONS; GENERAL Average; INSURANCE; JETTISON; PARTNERSHIP; SHIPPING; SURETYSHIP. 1. Definition, 1. 2. In General, I. 3. Between Sureties, 2. 4. Between Partners, 6. (a) Tenants in Common, 7. 5. Between Joint Owners of Property, 7. 6. Between Wrong-Doers, 12. 1. Definition. The payment by each or any one of several parties who are liable in company with others of his proportionate part of the whole liability or loss, to one or more of the parties so liable upon whom the whole loss has fallen, or who has been compelled to discharge the whole liability.3 2. In General. Whenever one of several parties who are bound by a common charge discharges the same for the benefit of all, he has a right to call upon his co-debtors for contribution.* The doctrine of contribution is not so much founded on contract as on the principle of equity and justice, that, where the interest is common, the burden also shall be common.5 1. Contrary to Law. On motion for 3. Bouvier's Law Dict. new trial means, "contrary to the general principles of the law as applicable to the facts." Buskirk's Practice, p. 239; Bosseker 7. Cramer, 18 Ind. 44; Candy v. Hanmore, 76 Ind. 125. 2. Contrary Intent in Trust Deed. A trust deed which omits to provide for filling a vacancy in the number of trustees upon the happening of an event not contemplated by the parties to that instrument, does not, by that mere omission, show an intention "contrary" to an appointment of a new trustee in the mode provided by the English Conveyancing Act of 1881 (44 and 45 Vict. c. 41), s. 31, sub-secs. 1, 3, 6, 7. In re Coates to Parsons, 34 Ch. D. 370. 4 E. of L.-I. 4. See Bispham's Eq. § 328; Adams's Eq. #267. Stirling v. Forrester, 3 Bligh, 590; Aspinwall v. Sacchi, 57 N. Y. 331; Wood v. Leland, 1 Met. (Mass.) 389. The voluntary act of one party in expending money for the benefit of all, will not create a right to contribution. See Webster's App. 86 Pa. St. 409; Watson v. Wilcox, 39 Wis. 643. An agreement by several parties to equal ly aid, comfort, and take care of a third party, when sick, may warrant a decree in equity for contribution. Odiorne z. Moulton (S. C. of N. H. 1887), 9 Atlantic Rep. 625 5. Campbell v. Mesier, 4 Johns. Ch (N. Y.) 334; s. c., 6 Johns. Ch. (N. Y.) 21; 1 3. Between Sureties. The right of contribution arises between sureties where one has been called on to make good the principal's default, and has paid more than his share of the entire liability.1 Allen . Wood, 3 Ired. Eq. (N. C.) 386: Mills v. Hyde, 19 Vt. 59; White 7. Banks, 21 Ala. 705; Russell v. Failer, 1 Ohio St. 327; Oldham v. Broom, 28 Ohio St. 41; Van Petten v. Richardson, 68 Mo. 380; Wells v. Miller, 66 N. Y. 255. "The principle," observes Lord Redesdale in Stirling v. Forrester, 3 Bligh, 59, "established in the case of Dering v. Lord Winchelsea (1 Cox, 318), is universal, that the right and duty of contribution is founded in doctrines of equity: it does not depend upon contract. If several persons are indebted, and one makes the payment, the creditor is bound in conscience, if not by contract, to give to the party paying the debt all his remedies against the other debtors." While contribution was originally only enforceable by courts of equity, subsequently jurisdiction was assumed by courts of law and relief administered on the ground of an implied assumpsit. See notes to Dering . Earl of Winchel sea, Lead. Cas. Eq. *106; Fletcher 2. Grover, 11 N. H. 368; Bachelder v. Fisk, 17 Mass. 464; Mason . Lord, 20 Pick. (Mass.) 447; Mills . Hyde, 19 Vt. 59; Norton. Coons, 3 Denio (N. Y.), 130; Wilder v. Butterfield, 50 How. (N. Y.) 399; Rindge . Baker, 57 N. Y. 209, 215; s. c., 15 Am. Rep. 475; Powers v. Nash, 37 Me. 322; Jeffries v. Ferguson, 87 Mo. 244. Field, C. F., in Chipman v. Morrill, 20 Cal. 131, 135, discussing the principle upon which the doctrines of contribution depends, says, "The principle is, that, where there is a common liability, equality of burthen is equity. Courts of equity, therefore, naturally took jurisdiction of cases of contribution, where one surety had paid more than his just proportion. But the equitable doctrine, in progress of time, became so well established that parties were presumed to enter into contracts of suretyship upon its knowledge; and consequently, upon a mutual understanding that if the principal failed, each would be bound to share with the others a proportionate loss. Courts of common law thereupon assumed jurisdiction to enforce contribution between the sureties, proceeding on the principle that from their joint undertaking there was an implied promise on the part of each surety to contribute his share, if necessary, to make up the common loss. Craythorne 7. Swinburne, 14 Vesey, 164; Lansdale's Adm'rs & Heirs 7. Cox, 7 T. B. Mon. (Ky.) 403; Campbell. Mesier, 4 Johns. Ch. (N. V.) 339; I Maddock's Ch. 236; Fletcher 7. Grover, 11 N. II. 369." The jurisdiction of equity, however, to enforce contribution, remains unimpaired. Wayland 7. Tucker, 4 Gratt. (Va.) 268; Couch 7. Terry's Adm'rs, 12 Ala. 225, 228; Mitchell's, etc., Adm'rs z. Sproul, 5 J. J. Marsh. (Ky.) 264, 270; Wright v. Hunter, 5 Ves. 792. And the remedy in equity is in many respects superior. Campbell v. Mesier, 4 Johns. Ch. (N. Y.) 334; Black v. Shreeve, 3 Halst. Ch. (N. J.) 440; Cowell v. Edwards, 2 Bos. & P. 268. "In many cases, especially where the sureties were numerous, and some of them were insolvent, or where some of the sureties had died, courts of equity were alone adequate to afford complete remedy." Per Field, C. J., in Chipman v. Merrill, 20 Cal. 135. In equity the rights of all the parties can be fully adjusted and protected. Bank of Poughkeepsie v. Ibbotson, 24 Wend. (N. Y.) 479; Pfohl v. Simpson, 74 N. Y. 137; Thebris z. Smiley, 110 Ill. 316. See also Waters v. Riley, 2 Har. & G. (Md.) 305; York z. Peck, 14 Barb. (N. Y.) 644; Chaffee 7. Jones, 19 Pick. (Mass.) 260. 1. Adams's Equity, *269; Norton Soule, 2 Me. 341; Crowdus. Shelby, 6 J. J. Marsh. (Ky.) 62; Pinkston v. Taliaferro, 9 Ala. 547; Yates v. Donaldson, 5 Md. 389; Newcomb 7. Gibson, 127 Mass. 396; Harvey v. Drew, 82 Ill. 606. A judgment, execution and payment of the amount thereof, are quite enough to sustain a co-surety who asks for contribution. Wyckoff v. Gardner (N. J. Ch. 1886), 5 Atlantic Rep. 801. In an action by a surety against a cosurety for contribution, the latter cannot defend by setting up, by way of set-off, a cause of action existing in favor of the principal against the plaintiff. O'Blenis v. Karing, 57 N. Y. 649. Sureties may join in an action to recover from a co-surety the amount paid for his benefit, when, each being liable for the full amount, they joined in making the payment by a contribution agreed on among themselves for that purpose. Clapp v. Rice, 15 Gray (Mass.), 557; s. c., 77 Am. Dec. 387; Fletcher v. Jackson, 23 Vermont, 581; s. c., 56 Am. Dec. 98. The right of contribution does not arise until the surety has paid more than his share of the debt. Rutherford v. Branch Bank, 14 Ala. 92; Lytle v. Pope, 11 B. Mon. (Ky.) 309; Van Petten v. Richardson, 68 Mo. 379; Wood 7. Leland, 1 Met. (Mass.) 387; City of Keokuk v. Love, 31 Iowa, 119. In Davies 7. Humphreys, 6 M. & W. 168, Parke, B., says, "What, then, is the nature of the equity upon which the right of action But the payment, upon which the claim for contribution is founded, must have been compulsory; that is, one which the surety could depends? Is it that when one surety has paid any part of the debt, he shall have a right to call on his co-surety or co-sureties to bear a proportion of the burthen? or that, when he has paid more than his share, he shall have a right to be reimbursed what ever he has paid beyond it? or, must the whole of the debt be paid by him, or some one liable, before he has a right to sue for contribution at all? We are not without authority on this subject, and it is in favor of the second of these propositions. Lord Eldon, in the case of Ex parte Gifford (2 B. & P. 269), states, that sureties stand with regard to each other in a relation which gives rise to this right amongst others, that if one pays more than his proportion, there shall be a contribution for a proportion of the excess beyond the proportion which, in all events, he is to pay; and he expressly says, 'that, unless one surety should pay more than his moiety, he would not pay enough to bring an assumpsit against the other.' And this appears to us to be very reasonable; for, if a surety pays a part of the debt only, and less than his moiety, he cannot be entitled to call on his co-surety, who might himself subsequently pay an equal or greater portion of the debt. In the former of which cases, such co-surety would have no contribution to pay; and in the latter, he would have one to receive." The action for contribution may be sustained without proof of a previous demand upon the co-surety. Chaffee_v. Jones, 19 Pick. (Mass.) 260; Collins v. Boyd, 14 Ala. 505; Morrison v. Poyntz, 7 Dana (Ky.), 307; s. c., 32 Am. Dec. 92. See, however, Carpenter v. Kelly, 9 Ohio, 106, where it is held that no liability on the part of the cosurety arises until he has had notice that the surety has paid the debt. See also Sherrod v. Woodard, 4 Dev. (N. C.) 360. Costs and Expenses of Suit.-The right of co-sureties to compel contribution for costs and expenses incurred in defending a suit, depends upon whether the defence was made under such circumstances as to be regarded hopeful and prudent. If so, the expenses of defence may always be recovered. Per Redfield, J., in Fletcher v. Jackson, 23 Vt. 581; s. c., 56 Am. Dec. 98, 102; Marsh . Harrington, 18 Vt. 150; Davis v. Emerson, 17 Me. 64; Kemp v. Finden, 12 M. & W. 421. In Davis v. Emerson, 17 Me. 64, judgment had been recovered against an insolvent principal and his two sureties, and had been paid by one of them. Held, that the surety so paving, might recover of his co-surety one-half of the costs, as well as of the debt. Weston, C. J., said, "The plaintiff paid the execution, including the costs. The failure to pay, which occasioned the costs, was imputable to the defendant, as much as to the plaintiff. As the defendant was liable for half the execution, to that extent, the plaintiff paid money for his use and benefit. The costs cannot be distinguished from the debt. Every equitable principle which entitles the plaintiff to contribution for the one, applies equally to the other." Compare Boardman v. Paige, 4 N. H. 431; Knight 7. Hughes, Moo. & M. 247; s. c., 3 Car. & P. 467; Comegys 7. The State Bank, 6 Ind. 357. Compromise by Surety. If the surety compromises the claim, his co-sureties are entitled to the benefit of the compromise. Hickman v. McCurdy, 7 J. J. Marsh. (Ky.) 555; Swan's Estate, 4 Ired. Eq. (N. C.) 209; Tarı v. Ravenscroft, 12 Gratt. (W. Va.) 642. Surety is discharged by a Release of the Principal. — The liability of a surety_for contribution is discharged by a general release given by his co-sureties to the principal of all liability for any sums they should pay, and it makes no difference that the release was only given to enable the principal to testify in a suit against the surety for contribution. Fletcher v. Jackson, 23 Vt. 581; s. c., 56 Am. Dec. 98; Hobart v. Stone, 10 Pick. (Mass.) 215. See, however, Hall v. Hutchens, 3 M. & K. 426. Estate of Deceased Co-surety liable for Contribution. The executor or adminis trator of a deceased co-surety may be called upon for contribution. Bachelder v. Fisk, 17 Mass. 264; Johnson v. Harvey, 84 N. Y. 363; s. c., 38 Am. Rep. 515; Sibley v. McAllister, & N. H. 389; Malin v. Bull, 13 S. & R. (Pa.) 441. In Bradley v. Burwell, 3 Denio (N. Y.), 62, B. and G. became sureties for S., as guardian of a minor, in a joint bond executed by the three, conditioned for the due execution of the trust by the guardian. After the death of G., the guardian committed a breach of his duty, on account of which the obligee recovered a judgment against S. and B., which B., the surviving surety, paid. Held, that B. could maintain an action against the executors of G. to recover a moiety of the amount so paid by him. When Statute of Limitations begins to run.-The right of action attaches as soon as a surety has paid more than his share of the debt, and the statute of limitations begins to run from the time of the payment of the money. Sherrod v. Woodward, 4 Dev. (N. C.) 360; Pouder . Carter, 12 Ired. L. (N. C.) 242; Wood v. Leland, I |