THOMAS T. WHEELER'S ESTATE. 85

be supposed to have received that portion of the consideration
upon which the obligation was given.

But if either one of them receives from the other a consider-
ation equal to the proportion of that other, of the common bur-
den, he must take that proportion upon himself, and in the ad-
justment of the equities between the remaining party and the
obligor, who has enjoyed a consideration equal to two-thirds of
the debt, the latter must be charged with that proportion.

That appears to me precisely the relative position of these
parties, Thomas T. Wheeler, Odel Wheeler and Thomas Hil-
leary, each received from Wilson a consideration in money or
property, equal to six hundred dollars, and executed to him their
joint and several single bill for eighteen hundred dollars.

As between themselves, therefore, each was liable to pay six
hundred dollars. But one of them, Thomas T. Wheeler, re-
ceived from another, Odel Wheeler, in money or property, or
in something else of value, a sum equal to the six hundred dol-
lars. Surely, therefore, he, Thomas T., should pay twelve
hundred dollars, and Hilleary, the third co-obligor, who has
been compelled by the creditor to pay a sum exceeding his one-
third of the debt, should be allowed at once in equity, and with-
out circuity, to go against him, Thomas T., for such excess.

This view of the subject relieves the case, as it seems to me,
of the question raised upon the argument, as to the obligation
to give Thomas T. Wheeler notice, and an opportunity to de-
fend a suit brought against Odel Wheeler. He has agreed to
assume the payment of Odel's part of the debt, and may as
well here, as anywhere else, show, if he can, that Odel is liable
for less than a third, or not liable for any portion.

No attempt has been made to do this, and upon the face of
the instrument and by the terms of the agreement of the parties ;

the obligors in the single bill were all principals.

I am, therefore, of opinion, that Thomas T. Wheeler is lia-
ble to contribute two-thirds; and I am further of opinion, that
the statement of the claim by the Auditor is correct.

The creditor unquestionably was entitled to receive the whole
amount of his debt, with interest, and the payments made him
8