In Rees v. Berrington, 2 Vesey, jun., 540, 543, the plaintiff was surety, and the defendants, who were the executors of the obligee, had given time and taken promissory notes. Lord Loughborough said, the surety has a right, after the bond is due, to come here and insist upon its being put in suit; that the obligee had suspended that till the time contained in the notes had run out; therefore he had disabled himself to do that equity to the surety, which he had a right to demand. If the application be proved, it is a duty to comply with it. The defendants had put it out of their power to perform that, which the nature of the relation between the surety and the person with whom he is bound, requires. It was a breach of the obligation in conscience and honesty; and it was not too much to say of that obligation in point of law. The Court cannot try the cause by inquiring what mischief might have been done; for that would go into a vast variety of speculation, upon which no sound principle could be built.

In late cases, provided there was no risk, delay, or expense, as in the case put of the money in the next room, indemnifying against the consequences of risk, delay, and expense, the surety has a right to call upon the creditor to do the most he can for his benefit; and the latter cases have gone farther. Wright v. Simpson, 6 Vesey, 714, 734.

The doctrine was first introduced in Courts of Equity, that if the creditor gives time to the original debtor, the surety is discharged. It was founded on this principle, that every surety

Reports of Cases in Equity, 67, 69, Sir Thomas Powis, in arguing a case, said, that money borrowed by one person, ought to be paid in exoneration of another person, and that there was the same remedy in equity as in a personal security. Lord Cowper took a difference, that where a person was security in a contract, there is a joint contract that the principal shall indemnify the security and that the ground of equity is, that when the money is due, the equity arises. But Sir Thomas Powis replied, that one may exhibit his bill before the time of payment; but where the land, or the land and person, are both security, the estate stands at stake, to enable the principal to owe it, as well as the security to pay it, or borrow it thereon: and the contract of the security is, that he shall continue to owe it on the credit thereof, and not to go to gaol the next day; for even in a personal security, you must the next day apply for a reimbursement, for what was equity one day was equity the next.

Right of surety

to have the

has a right to come into a Court of Equity, and require to be permitted to sue in the name of the original creditor. If the creditor gives time to the original debtor, he thereby prevents the surety from using his name with effect (a). Melvill v. Glendining, 7 Taunton, 126.

It is true that a surety may come here to compel the principal to relieve him of his liability, by paying off the debt. Antrobus v. Davidson, 3 Merivale, 569, 579.

See Orme v. Young, Holt, 84, 86; Samuell v. Howarth, 3 Merivale, 272, 278; Bank of Ireland v. Beresford, 6 Dow, 233, 238; and Blake v. White, 1 Younge & Collier, 420.

The dictum of Sir Joseph Jekyll, in Lee v. Rook, Moseley, 318, although generally otherwise understood, seems to apply to the right of the surety, who has paid the debt, to come into equity, to have it reimbursed by the principal.

In Cock v. Ravie, 6 Vesey, 283, Lord Eldon said, he remembered a bill filed to make the principal in a bond pay the debt. The party was going to America upon the 1st June; and the bond would have been due on the 1st July. That was very strong: yet Lord Thurlow refused the writ of ne exeat regno.

Cock v. Ravie was an application by sureties, to whom their principal had promised an indemnity, for a ne exeat against him. The application was refused.

See the note to Nisbet v. Smith, ante, page 612.

As the creditor is entitled to the benefit of all the securities paying the debt, the principal debtor has given to his surety, the surety has full benefit of all the as good an equity to the benefit of all the securities the principal creditor's secu- gives to the creditor. Wright v. Morley, 11 Vesey, 12, 22.

rities.

In arguing Craythorne v. Swinburne, 14 Vesey, 160, 162, Sir Samuel Romilly said, 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.

(a) The right to sue in the creditor's name, is here confounded with the right to call on the creditor to put the security in suit.

In Hodgson v. Shaw, 3 Mylne & Keen, 183, 191, Lord Brougham quoted the above passage of Sir S. Romilly's argument, observing that it was a most luminous exposition of the doctrine of the Court, that the surety paying the debt has a right to stand in the place of the creditor; and that Lord Eldon, in giving judgment in Craythorne v. Swinburne, sanctioned the exposition by his full approval: and he (Lord B.) had purposely taken this statement of the right, because it is there placed as high as it ever can be placed.

The original implied contract is, that as far as the nature of the original security will admit, the surety paying the debt shall stand in the place of the creditor. Boultbee v. Stubbs, 18 Vesey, 20, 21.

Sureties are entitled to the benefit of every security, which the creditors had against the principal debtor; and whether the surety knows the existence of those securities is immaterial. Mayhew v. Crickett, 2 Swanston, 185, 191; S. C. 1 Wilson C. C. 418, 423.

Lord Harberton v. Bennett, post, page 628, 629.

It is the settled and general rule of Courts of Equity, that where a surety pays the debt of a principal debtor, he has a clear right, by the course of proceeding in equity, to the benefit of an instrument and securities given by the principal debtor for payment of that debt. Dowbiggin v. Bourne, Younge, 111, 115.

The rule in equity is undoubted, and is one founded on the plainest principles 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. It is hardly possible to put this right of substitution too high, and the right results more from equity than from contract, or quasi contract, unless in so far as the known equity may be supposed to be imported into any transaction, and so to raise a contract by implication. Hodgson v. Shaw, 3 Mylne & Keen, 183, 190.

It is quite clear that a surety, who pays the debt of the principal debtor, is entitled to the benefit of all those securites, which the creditor himself could render available against the principal debtor. Dowbiggin v. Bourne, 2 Younge & Collyer, 462, 470.

Surety in a bond.—Principal debtor executes a mortgage as a Miscellaneous counter security. Then surety joins in a second bond: but cases. nothing was said at the time as to the mortgage being a counter

security for such second bond also. Decreed nevertheless, upon bill to redeem, that the mortgagor must save the surety harmless as to both bonds. Saint John v. Holford, 1 Cases in Chancery, 97.

There was a mortgage, and there was also a bond, and in the latter there were sureties. It turned out that the mortgage was bad, from a defect in the principle debtor's title: but the principal debtor afterwards acquired an estate in the mortgaged premises, and a decree was made which gave to the sureties the benefit of this estate. Seabourne v. Powell, 2 Vernon, 11.

Supposing that a creditor, subsequently to the transaction, which created the relation of surety, enters into an arrangement with the debtor, under which the creditor obtains additional securities for the same debt, is not the surety entitled to the benefit of those securities? Anon., M. R. March, 1826.

Brice was indebted to Twynam in balance of account 12007. : and three bonds of 4001. each, in each of which there was to be a surety, were agreed to be given by way of security. Two of those bonds were executed. Coope was surety in one of them. The third intended surety refused to execute his bond and in the place of that bond, Brice, a year afterwards, gave a mortgage for securing 1000., the then balance of account. Coope claimed the benefit of this mortgage. Against this claim it was argued, that it had never been decided that a surety, in prior transactions between debtor and creditor, can claim the benefit of securities given in a subsequent transaction: that the rule giving the surety the benefit of the creditor's securities, is limited to the securities being given as part of the same transaction. The Court said that the bonds and mortgage were, in one sense, given in respect of the same debt, though they were in fact given for different parts of the same debt, and were altogether distinct and separate transactions: that the doctrine that when a man becomes the surety for a debtor for the payment of a debt, he has, if he pays the debt, a right to avail himself of all the securities which the creditor has-that that doctrine never applies to a person who becomes surety at one time, and a security is given to the same creditor either for another debt, or, what is the same thing, for a distinct portion of the debt for which the first security was given: that there was not any such case: on the contrary, all the notion the Court had of the law was, that the doctrine had always been stinted to the particular contingency of the debt being one, and the security being given for the same

debt, at the time when the person became surety for it. Wade v. Coope, 2 Simons, 155.

It is a general rule that in equity a surety is entitled to the The securities benefit of all the securities, which the creditor has against the must be sub. sisting. principal; but then the nature of those securities must be considered. The general rule must be qualified by considering it to apply to such securities as continue to exist, and do not get back upon payment to the person of the principal debtor. In the case, for instance, where in addition to a bond there is a mortgage, with a covenant on the part of the principal debtor to pay the money, the surety paying the money would be entitled to say, I have lost the benefit of the bond, but the creditor has a mortgage, and I have a right to the benefit of the mortgaged. estate, which has not got back to the debtor. When there is a bond merely, if an action was brought upon the bond, it would appear upon oyer of the bond that the debt was extinguished. Copis v. Middleton, Turner & Russell, 224, 229.

In Purdon v. Purdon, Hudson & Brooke, 229, 271, Mr. Justice Burton made the following remarks on the subject of decrees of Courts of Equity for assignments of securities for the indemnity of sureties, or for enabling sureties to stand, without such assignments, in the place of the creditors whose debts they have paid, so as to have the legal benefit and priority of such securities. The learned judge said, he believed all those cases, so far as they had any application to the subject then before the Irish Exchequer Chamber, (see post, pages 630-640), fell within the following rules;-first, that in a Court of Equity a surety, paying the debt of a principal, is entitled to the benefit of all the subsisting and available legal securities of the creditor, not only against the estate of the principal, but against other creditors, so as to have the priority given by such securities. Secondly, that of such securities as are extinguished, or the legal remedies upon them barred, Courts of Equity will not in general direct assignments, because it would be nugatory to do so. But, thirdly, the last rule does not interfere with that jurisdiction of those courts, which, under the head of accident or fraud, enables them to relieve against the legal consequences of defective assurances, or to restrain parties from availing themselves of a legal defence, which, under circumstances, it may be unconscientious in them to make.

A surety paying off the debt of his principal is entitled against his principal to the benefit of all securities, which at law have not been discharged. Salkeld v. Abbott, Hayes, 576, 584.