Taylor

The plaintiff and the defendant’s testator were co-sureties for Preston on a promissory note. The plaintiff paid the amount due on the promissory note, and brought this action against his co-surety for contribution. The defendant, after denying the alleged payment by the plaintiff, avers upon his information and belief that before the making of the note Preston deposited with the plaintiff a large amount of available collateral securities of a value more than the amount of the note, “ the said plaintiff having the full and entire control of the said collateral securities, to dispose of and apply the same to the payment of the said note when the same became due, and that the said plaintiff, as the defendant is informed and believes, still has the said securities, but neglects and refuses to apply or use the same to or towards the payment of the said note, but still retains and holds the possession thereof.” The Court found for the plaintiff upon all the issues except that which is presented by the averments above cited.

The defendant’s points are that the plaintiff cannot recover in this action without averring and proving that Preston is unable to respond to the plaintiff for the…