¶1By the Court,
¶2This case is supposed to turn upon the principals of the case of Warner v. Price 3 Wendell, 397. That was an action by a co-surety, who. had paid the debt against the defendants, assuming all of them to be principals, when the fact was, and he knew it at the time of signing the note, that only one of them was the principal. -There was, therefore, an attempt to subject the other sureties as principals, without any assent or agreement on their part to stand in that relation to the plaintiff, It was in that case well said by the chief justice, that the plaintiff a.nd the defendants must be considered cosureties, “ unless a state of facts be shown to the court, from which it shall appear positively, or by legal intendment, that the defendants intended, as to the subsequent signer,. (the plaintiff,) to stand in the character of principals.” They would be bound only by their agreement, express or implied.
¶3Here the defendant is resisting a claim against him, foundcd upon the position that he is a co-surety with the plaintiff, and bound to contribute. Now, upon the principles of the above case, the plaintiff must show positively, or by legal intendment, that the defendant has placed himself in that relation to him. The defendant had a right to qualify his contract as he pleased, consistent with the rules of law. He refused to sign as a co-surety with the other sureties, but did sign as surety for the whole, in which there was certainly nothing unlawful. The payees had the benefit of his name, and it did the other sureties no harm. I admit, had the money keen collected from the defendant, he could not have recovered from the other sureties as principals, unless he could have shown what was required in the case oí Warner v. Price, and what we require as to him here, a contract to stand in the relation charged. He is not a co-surety as between him and the other sureties, so as to enable them or either of them to obtain contribution.