12 Wendell N. Y. Rep., 126, S. P. Commissioners of Berks v. Ross, 3 Binn. Penn. Rep., 520. Clagett v. Salmon, 5 Gill. & Johns. Md. Rep., 315. Wheaton v. Rendall, 6 New Hampshire Rep., 505. Grafton Bank v. Kent, 4 lb., 221. Bank v. Woodward, 5 lb., 99. Miller v. Stewart, 9 Wheat. U. S. Rep., 702. Hall & Monstross v. Constant, 2 Hall, 185. Colemard v. Lamb, 15 Wendell, 329. Albany Dutch Church v. Vedder, 14 Wendell, 165. Blackstone Bank v. Hill, 10 Pick. Mass. Rep., 129. Oxford Bank v. Lewis, 8 Pick., 458. Baird v. Rice, 1 Call., 18. Ellis v. Bibb, 2 Stewart, 63. Hill v. Bull. 1 Gilmer, 149. Galphin v. McKinney, 2 McCord's Ch. Rep., 297. Kirby v. Taylor, 6 Johns. Ch. Rep., 249. Rose v. Clores' Ex'rs, 3 Dana, 193. Miller v. McCann, 7 Paige, 451. North American Coal Co. v. Dyott, 7 Paige, 9. Ware v. Culver, 2 Neville & Perry, 126. Hall v. Cole, 6 Nev. & Mann., 124. Duncan v. Sutton, 1 Bing. N. S., 431. Davis v. Battine, 2 Russ. & Mylne, 76. Leavitt v. Savage, 4 Shepley, (16 Maine Rep.) 72. Walters v. Swallow, 6 Wheat., 466. Dox v. The Postmaster General, 1 Peters' S. C., 325. United States v. Kirkpatrick and others, 8 Wheaton, 720. United States v.Vanzant, 11 Wheaton, 184. United States v. Stansbury et al., 1 Peters' S. C. Rep., 475. Hunter v. The United States, 5 Peters, 173. Douglass v. Reynolds, 7 Peters' S. C. Rep., 113. United States v. Orr's Admr., 8 Peters' S. C. Rep., 399. Sprigg v. The Bank of Mount Pleasant, 10 Peters' S. C. Rep., 257. Same case, 14 Peters' S. C. Rep., 201. United States v. Boyd, 15 Peters' S. C. Rep., 187. Pothier des Oblig., 406. Vinnius Quest. Illust., 11, 42.

But it is clear that a mere gratuitous forbearance, without any binding agreement or obligation to refrain from taking proceedings, cannot exonerate the surety at law or in equity.-Theobald on Principal & Surety, 135. Chitty on Bills, 7th ed., 290, 8th ed., 442. Philpot v. Bryant, 1 Moore & Payne, 754. Eyere v. Everett, 2 Russ., 381. Heath v. Key, 1 Yerger & Johnson, 434. Orme v. Young, Holt, N. P. C., 84. Goring v. Edmonds, 6 Bing., 95. 3 Moore & Paine, 259. Chitty, jr., B. 100, v. Twopenny v. Young, 3 Barn. & Cress., 208. 5 Dowl. & Ryl., 259. Chitty on Bills, 7th edit., 213, 8th edit., 445. Emes v. Widowson, 4 Carr & Paine, 151. Thomas v. Courtney, 1 Barn. & Ald., 1. Nicholls v. Norriss, 3 Barn. & Ald., 41. Trent Navigation Company v. Harley, 10 East, 34. London Ass. Co. v. Buckle, 4 Moore, 153. Brown v. Carr, 7 Bing., 508. 2 Russ., 600, S. C. Langdale v. Parry, 2 Dowl. & Ryl., 337. Warrington v. Furber, 8 East, 242. Phillips v. Astling, 2 Taunt., 206. Murray v. King, 5 Barn. & Ald., 165. Hallbrow v. Wilkins, 1 Barn. & Cress., 10. 2 Dowl. & Ryl., 59. Van Wart v. Woolley, 3 Barn. & Cress., 439. 5 Dowl. & Ryl., 374, S. C. Alcock v. Hill, 4 Leigh, 662. Johnson v. Thompson, 4 Watts, 446. Hall v. Constant, 2 Hall, 185. United States v. Simpson, 3 Pennsylvania, 439. Reynolds v. Ward, 5 Wendell, 501.

The doctrine that a mere delay to sue the principal does not discharge a surety, is recognized in the following cases :-Lock v. Unitea

States, 3 Mason, 446. Oxford Bank v. Lewis, 8 Pick., 458. Blackstone Bank v. Hill, 10 Pick., 129. Fullam v. Valentine, 11 Pick., 156. United States v. Kirkpatrick, 9 Wheaton, 737. Dox v. Postmaster General, 1 Pet. S. C., 326. Buchanan v. Boardly, 4 Har. & McHen., 41. Hunt v. United States, 1 Gall., 32. Byrn v. Poany, 3 Des., 604. De Huff v. Turbett, 3 Yeates, 157. Thursday v. Gray, 4 Yeates, 518. Cope v. Smith, 8 Serg. & Rawle, 110. Commonwealth v. Wolbert, 6 Binney, 292. Fulton v. Matthews, 15 Johns., 433. Powell v. Walters, 17 Johns., 176. People v. Russell, 4 Wendell, 570. Townsend v. Riddle, 2 New Hamp., 448. Lennox v. Prout, 3 Wheat., 524. McKenney v. Waller, 1 Leigh, 434. Waine v. Kirby, 2 Baily, 551. Treasurers v. Johnson, 4 Black., McCord, 458. Shubrick v. Russell, 1 Des., 315. Braman v. Hawk, 1, 392. Strafford Bank v. Crosby, 8 Greenl., 191. Hoge v. Penn, 1 Bland, 30. Kennebec Bank v. Tuckerman, 5 Greenleaf, 130. Gahn v. Neimcewiez, 11 Wend., 317. Reynolds v. Ward, 5 Wend., 501. Slaggett v. Salmon, 5 Gill. & Johns., 314. Stout v. Ashton, 5 Monroe, 252. Norris v. Crumney, 2 Randall, 323. Freeman Bank v. Rollins, 13 Maine, 202. Crane v. Newhall, 2 Pick., (2d edition,) 614, n. 1. Andrews v. Bealls, 9 Cowen, 693. Frye v. Baker, 4 Pick., 382. Bellows v. Lovell, 5 Pick., 307. Pickett v. Laud, 2 Baily, 608. Moore v. Broussord, 20 Martin's Louis., 277. Davis v. Huggins, 3 New Hamp., 231. Manning v. Shottwell, 2 South, 585. Treasurers v. Johnson, 4 McCord, 458. Warner v. Beardsley, 8 Wendell, 194. De Kuffe v. Turbett, 3 Yeates, 157. Erie Bank v. Gibson, 1 Watts, 143. Paine v. Packard, 13 Johns., 174. Ring v. Baldwin, 17 Johns., 403. Manchester v. Sweeting, 10 Wendell, 162. Hancock v. Bryant, 2 Yerger, 476. Valentine v. Farrington, 2 Gow, 53. Snell v. Reynolds, 3 Missouri, 95. Leavett v. Savage, 4 Sheply, 72. Mahurin v. Pearson, 8 New Hamp. Rep., 539.

A verbal agreement, to wait till the debtor can go to a certain place to procure money with which to pay the debt, is not such a prolongation of time as will discharge the surety.-Bourtte v. Martin et al., 16 Lou. Rep., 133.

The claim of the United States upon an official bond, and upon all the parties to it, is not released by the laches of the officer to whom the assertion of this claim is intrusted. Such laches have no effect whatsoever on the rights of the United States, as well against the sureties, as the principal in the bond.-Dox v. The Postmaster General, 1 Peters' S. C. Rep., 325. Hunter v. The United States, 5 Peters' S. C. Rep., 173. Farrar & Browne v. The United States, 5 Peters' S. C. Rep., 373. United States v. Kirkpatrick et al., 9 Wheaton, 720. United States v. Vanzandt, 11 Wheaton, 184. Postmaster General v. Early, 12 Wheaton, 136. The United States v. Boyd, 15 Peters' S. C. Rep., 187. Hopkirk v. McComco & others, 1 Brockenbrough, 220. Pendleton's Exrs. v. The United States, 2 Brockenbrough, 76. The United States v. Maurice et al.

2 Brockenbrough, 97. The United States v. Graves et al., 2 Brockenbrough, 379.

The discharge by the Secretary of the Treasury, of the principal in a bond to the United States, who is imprisoned under a ca. sa. issued against him, and who has assigned all his property for the use of the United States, does not impair or affect the rights of the United States to proceed against sureties for the amount due upon the judgment and unpaid. The United States v. Stansbury et al., 1 Peters' S. C. Rep., 575. Sibby v. McAllister, 8 New Hamp. Rep., 389. Naylor v. Moody, 3 Black Rep., 92.

OF THE RIGHTS AND REMEDIES OF SURETIES.

1. What is the rule as to the rights of the surety against his principal !

It is settled, that as soon as the debt becomes due, by the terms of the contract, a surety may pay it, and at once have his remedy against his principal.-13 Johns. Rep., 58. Manri v. Heffernau, 4 Johns. Rep., 461. Sluby v. Champlin, 16 Mass. Rep., 41. Batchelder v. Fisk, 17 Mass. Rep., 464.

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And it seems that a surety who thus pays, may have his remedy against his co-surety, without showing an inability in the principal to pay. -2 Bos. & Pull., 268. Cowell v. Edwards, 2 Bos. & Pull., 270. ner v. Davis, 2 Esp. N. P. C., 478. Hoyt v. Wilkinson, 10 Pick. Mass. Rep., 34. S. P. Pigon v. French, 1 Wash. U. S. C. C. Rep., 278. Brintnal v. Helmes, 1 Root's Rep., 291. Bellowes v. Lovell, 5 Pick. Mass Rep., 307. United States v. Simpson, 3 Penn, Rep., 439. Ingalls v. Dennett, 6 Greenleaf's Me. Rep., 79.

A surety may apply to the court for relief and protection, as soon as he is endangered.—Taylor v. Heriot, 4 Dessau., 227.

2. What is the general rule as to the rights of the surety after he has paid the debt?

The rule is undoubted, and it is one founded on the plainest princi ples of natural reason and justice, that the surety, paying off a debt, shall stand in the place of the creditor, and have all the rights which he has for the purpose of obtaining his reimbursement.

A surety will be entitled to every remedy which the creditor has against the principal debtor, to enforce every security and all means of payment; to stand in the place of the creditor, not only through the medium of contract, but even by means of securities entered into without the knowledge of the surety; having a right to have those securities transferred to him, though there was no stipulation for that; and to avail himself of all those securities against the debtor.-Hodgson v. Shaw, 3 Mylne & Keene, 190. Craythorne v. Swinburne, 14 Ves., 159. Cheeseborough v. Millard, 1 Johns. Ch. Rep., 413. Avery v. Petten, 7 Johns. Rep., 211.

Where money is paid by a surety for his principal, the surety is sub

rogated to all the rights of the creditor, whose debt he has discharged.Bank of the United States v. Winston's Exrs., 2 Brockenbrough, 252 Lidderdale v. Robinson, 2 Brockenbrough, 159.

A surety is entitled to the benefit of any security which the creditor may have taken from the principal debtor.-Pride v. Boyce, 1 Hill's Eq. Rep., 275. Callum v. Emanuel Gaines, 1 U. S. Alab. Rep., 23.

A surety, therefore, in a joint obligation upon the death of the principal insolvent, leaving the debt unpaid, is entitled to call upon the administration in equity, to apply the assets in his hands to the discharge of the obligation as a specialty debt, in preference to the claims of the simple contract creditors.-Pride v. Boyce, 1 Hill's Eq. Rep., 275. Callum v. Emanuel Gaines, 1 U. S. Alabama Rep., 23.

If the creditor parts with or renders unavoidable securities, or any fund, which he would be entitled to apply in discharge of his debt, the security becomes exonerated pro tanto.—Callum v. Emanuel Gaines, 1 U. S. Alabama Rep., 23.

In England, the modern rule is, that a surety who discharges a bond debt, destroys the bond and becomes only a simple contract creditor of the principal.-Capis v. Middleton, 1 Turn. & Russ., 230. James v. Davids, 4 Russell, 277. Hodgson v. Shaw, 3 Mylne & Keene, 183. Robinson v. Wilson, 2 Mad. Rep., 464.

Yet there are many cases in which a surety, paying a debt, will be entitled to stand in the place of the creditor, or to obtain the full benefit of all the proceedings of the creditor against the principal. Thus, for example, if the creditor, in case of the bankruptcy of the principal, has proved his debt before the commissioners, and then the surety pays the debt, the latter will be entitled to the dividends declaring on his estate, and the creditor will be held to be his trustee for this purpose.-Ex parte Rushworth, 10 Ves., 409. Wright v. Morely, 11 Ves., 12 to 23. Watkins v. Flannagin, 3 Russ., 421. Ex parte Houston, 2 Glynn & Jameson, 36. Ex parte Gee, 1 Glynn & Jameson, 330.

If at the time when the bond of the principal and surety is given, a mortgage also is made by the principal to the creditor, as an additional security for the debt; there, if the surety pays the debt, he will be entitled to have an assignment of that mortgage, and to stand in place of the mortgage. Capis v. Middleton, 1 Turn. & Russ., 224. Dowbiggin v. Bourne, 2 Young & Coll., 471. Hodgson v. Shaw, 3 Mylne & Keene, 190.

3. What is the rule in the civil law upon this subject?

That the surety is, upon payment of the debt, entitled to be substitutive to the creditor by way of cession or assignment, and upon such cession or assignment, upon payment of the debt by the surety, the debt is in favor of the surety, treated, not so much as paid, as sold-not as extinguished, but as transferred with all its original obligatory force against the principal. Fidejussoribus succurri solet, ut stipulator compellatur ei, qui solidum solvere paratus est, vendere ceterorum nomina. Cum is, qui et reum et fidejussores habens, ab uno ex fidejussoribus acceptâ pecuniâ præstat actiones, poterit quidem dici, nullas jam esse; tum

suam perceperit, et perceptione omnes liberati sunt. Sed non ita est, non enim in solutum accepis, sed quodammodo nomen debitoris vendidit. Et ideo habet actiones, quia tenetur ad ipsum, ut præstet actiones.-Dig., lib. 46, tit. 1, 1, 17, 1, 36. Pothier Pand., lib. 46, tit. 1, no. 46. Ante, sec. 327, 494. Post, 635 to sec. 638. 1 Domat, b. 3, tit. 1, sec. 3, art. 6, 7. Id., sec. 6, art. 6, 7. Pothier on Oblig., by Evans, 275, 280, 281, 428, no. 556, French edition.

The Roman law carried its doctrine yet farther, in furtherance of the great principles of equity.

It held the creditor bound not to deprive himself of the power to cede his rights and securities to the surety, who should pay him the debt; and, if by any voluntary or necessary act of his own, such a cession became impracticable, the surety might by what was technically called Exceptio cadendarum actionum bar the creditor of so much of his demand as the surety might have received by a cession or assignment of his liens and rights of action against the principal debtor. Si creditor a debitore culpâ suâ causâ ceciderit, prope est ut actione mandati nihil a mandatore consequi debeat; cum ipsius vitio acciderit, ne mandatori possit actionibus cedere.Dig., lib. 46, tit. 3, 1, 95, sec. 11. Pothier Pand., lib. 46, tit. 1, no. 46, 47. Pothier on Oblig., by Evans, no. 275, 289, 428, 429, 430, 519, 520, 521, b. 522, [no. 555, 556, 557, 558, 559, 560, of the French edit.] Cheeseborough v. Millard, 1 Johns. Ch. Rep., 414. Stephens v. Cooper, 1 Johns. Ch. Rep., 430, 431. Hays v. Ward, 4 Johns. Ch. Rep., 130. Pothier on Oblig., no. 496, 519, 520. 1 Story's Eq. Jurisp., 479.

After the surety has paid, if he has procured a subrogation to the rights and actions of the creditor, he may exercise them against the debtor, as the creditor himself might have done.

That the payment made by the surety should entitle him to these actions, it is requisite :

1st. That the surety shall not by his own fault have neglected any fin de non recevoir, which he might have opposed to the creditor.

2d. That the payment shall have been valid, and liberated the principal debtor.

3d. That the principal debtor shall not have paid a second time through the fault of his surety.-Pothier des Oblig., No. 432.

Where the surety is sued on a bond given for an illicit or illegal consideration before a competent tribunal, and makes all the defence in his power to avoid the obligation, and fails, and afterwards to avert seizure. or arrest, releases errors, and pays the judgment obtained against him, his principal will be bound to reimburse him.-Montgomery v. Russell, 10 Lou. Rep., 338.

A surety's cause of action against a co-surety, or his representatives, for contribution, accrues when and not before he pays the debt of the principal.-Wood v. Leland, 1 Metcalf, 387.

4. What is the rule as to contribution between sureties?

Contribution among co-sureties was originally founded on the maxim that "equality is equity," among those who stand in the same situation.