Page:Harvard Law Review Volume 10.djvu/532

506 learned court as to equality correct? I submit that it is not. In the first place, by hypothesis the plaintiff voluntarily assumed the risk of bearing the whole burden upon his own shoulders. If he were compelled to bear it, as in this case he was, he has suffered no injustice, though it might be a hardship. In the second place, the creditor to whom the various bonds were delivered had the right to choose, among all who were bound to him thereby, which one he would sue. The bonds being separately executed and the parties being different, separate suits would be necessary to enforce them, and many reasons, such as difficulty in serving the defendants or possible defences to some of the suits, might render one suit much more advantageous to him than another. The creditor, therefore, is quite within his rights in holding one surety rather than another responsible for his loss. In the third place, the defendants have committed no breach of obligation against the plaintiff, unless their duty to contribute is an obligation. Since that obligation is the matter at issue, it cannot be assumed without proof. The equality then is that all the sureties are liable to be called upon for the whole loss, and that their risk, or chance of bearing the loss, is equal. It is not that they should all bear equal shares of the same burden. The result of holding otherwise is that a surety who voluntarily assumes a liability is enabled to throw a part of it upon persons whom he never asked to share it, who have in no wise broken any obligation to him, and whose relation to him is, so far as he is concerned, purely accidental. For these reasons it seems to me clear that contribution should never be allowed except as it is based upon some consensual right.

It must be admitted that both in this case and in the case of Exall v. Partridge it would be a generons act on the part of the defendants to pay the plaintiff what he asks, and thence it may be argued that the courts in enforcing the liability have merely recognized, consciously or unconsciously, the fact that generosity may be enforced by them in such cases as a legal duty. In that event, the duty would be classified under what I have called the duty of co-operation. This is certainly a very arguable proposition; but certain consequences of it must be considered. Generosity involves an act of self-sacrifice. Suppose that by enforcing the performance of such an act the defendant were impoverished. Would it be just for the court to enforce it? Not every act of