Report No. 13
112. Section 144.- No change is necessary in section 144.
113. Section 145.-
Pollock and Mulla1 suggest that the words 'rightfully' and 'wrongfully' are not felicitous and that they should be substituted by the words 'reasonably' and 'unreasonably'. We do not agree. 'Rightfully' was intended to convey that the sums paid were such as the creditor was legally entitled to recover and, therefore, the surety had the right to pay, and, likewise, the expression 'wrongfully' was intended to convey that the sums paid were such as the creditor was legally not entitled to recover, and, therefore, the surety was wrong in paying the same. We feel that the expressions used by the legislature more fully convey the intended idea than the suggested expression.
1. Pollock & Mulla; Op. Cit., p. 556.
114. Controversy has arisen on the question whether a surety paying a debt which is barred by limitation as against the debtor can be said to have paid it 'rightfully' within the meaning of this section. We think the affirmative is the correct answer as the rights of the surety arise not from the liability of the debtor but from the discharge of his own liability. An Explanation should be added to the section to make this clear.
115. In appropriate cases the surety is entitled to recover special damages beyond the sum he has actually been compelled to pay. It has been observed1 that his right is not merely a right to stand in the shoes of the creditor but is founded upon an independent equity.
1. Per Sterling, J. Bedeley v. Consolidated Bank, (1886) 34 Ch D 556 (566).
An Explanation should be added to the section to clearly preserve this right.