WATKINS v. WORTHINGTON. 539

strongly to a case of this kind in favour of a drawer or endorser,
as to the case of a common money bond, where the deceased was
bound as one of the obligors, and was, in fact, only a surety.

Considering these rules as established, and as applicable to this
case, the next inquiry is as to the kind of proof which may be
received and deemed sufficient in cases of this description, in ex-
planation of the nature of the contract, and as to the insolvency
of any of the obligors; that is, whether the deceased, whose estate
the court is about to administer, was principal or surety; or, if a
surety, then whether the principal or co-surety be insolvent or not.

It is well settled, as between principal and surety, that parol
proof may be admitted to shew, that, by a written contract, ac-
cording to the literal terms of which, two or more are equally
bound as principals, the one is, in fact, a principal, and the others
no more than mere sureties; because such proof does not purport
to interpret or expound the written instrument, but merely to es-
tablish a circumstance connected with the contract in relation to
which the writing did not profess to speak, (i)

The fact of insolvency is, from its peculiar nature, involved in
much obscurity. The equity on which a surety claims contri-
bution of his co-surety, is founded upon the fact of the principal
being really in a condition of insolvency; not on the mere circum-
stance of his having been declared a bankrupt, or having applied
for the benefit of the insolvent laws. A man, according to the
English law, may have been declared a bankrupt, and yet be able
to pay thirty shillings in the pound; and so too, in this state,
a person may have been driven, or indeed, from sinister motives,
induced to apply for the benefit of the insolvent laws, and yet be
not in a condition of insolvency. But it is that actual condition
alone of the principal or co-surety, without regard to any move-
ment under the insolvent laws, which, according to these princi-
ples of this court, can authorize the creditor to claim satisfaction
from the deceased surety's estate. A man, while he carries on
trade, or has any business that affords him a prospect of gain, is
not an insolvent, though his effects may not be sufficient to pay his
debts; for he has it in view to pay all, and may be enabled to do
so. But if his business fails, and leaves him no prospect of pay-
ing his debts, he is then, in the common sense of mankind, insol-

(i) Craythorne v. Swinburne, 14 Ves. 170; Smith v. Tunno, 1 McCord, 451.