arately they cannot join in such action. (Dussol v. Brugniere, 50 Cal. 456; Lombard v. Cobb, 14 Me. 222.) When each pays separately they have separate actions against the co-surety for indemnity. (Atkinson v. Steward, 2 B. Monr. 348.) Since the insolvent cosureties are not considered when contribution is asked in an equity court, they are not considered necessary parties, neither is the insolvent principal nor the representatives of insolvent deceased co-sureties necessary parties. (Brandt, Sur. & Guar., Sec. 292.)

Sec. 914. SUBROGATION AN EQUITABLE RIGHT.-"The right of the surety to demand of the creditor whose debt he has paid, the securities he holds against the principal debtor, and to stand in his shoes, does not depend at all upon any request or contract on the part of the debtor with the surety, but grows rather out of the relations existing between the surety and the creditor, and is founded not upon any contract, express or implied, but springs from the most obvious principles of natural justice."*

Subrogation, by which is meant the right of the surety or guarantor upon payment of the debt of the principal to the creditor, to be substituted for, or placed in the position of the creditor as regards all securities, liens, or other advantages which the creditor is holding against the principal, is strictly an equitable doctrine, and must be enforced in a court of equity. (Smith v. Harrison, 33 Ala. 706.) While a mere stranger or volunteer can

*Johnson, J., in Mathew v. Aiken, 1 N. Y. 595.

not by the payment of the debt of another be entitled to subrogation, the surety or guarantor of a debt is entitled to subrogation upon payment of the debt without any stipulation for it. (Burton v. Mill, 78 Va. 468; Miller v. Stout, 5 Del. Ch. 259.) The payment by the surety discharges the debt as to the creditor but it remains in force as to such surety against the debtor, and equity by the doctrine of subrogation, aims to compel the party in duty bound to pay the debt to do so, hence it transfers to the surety paying, the original evidences of the debt, any judgment in which the debt has been merged, all collateral securities or liens held by the creditor, and a right to compel their assignment to him from the creditor. (Dunphy v. Gorman, 29 Ill. App. 132; McCormick's Admrs. v. Irwin, 35 Pa. St. 111.)

Sec. 915. PREREQUISITES TO THE RIGHT OF SUBROGATION.-All persons who occupy the situation of sureties or guarantors, whether technically called such or not, are, without doing any act signifying their intention to elect or accept the privileges of the right, subrogated to the rights of the creditor against the principal upon payment of the debt. (Frow, Jacobs & Co.'s Estate, 73 Pa. St. 459; Brandt, Sur. & Guar., Sec. 299.) If, by laches or delay in asserting the right of subrogation the surety has allowed others to secure bona fide claims to the property, he will be held to have lost his right. (Gring's Appeal, 89 Pa. St. 336.)

The surety must generally pay the debt of the principal to be entitled to subrogation, but the form of payment is unimportant, and he may pay by note and en

force subrogation though the notes given in payment are not paid. (Stedman v. Freeman, 15 Ind. 86.) The surety upon being subrogated to the rights of the creditor stands in his place, and cannot claim any greater rights than the creditor would have had. So the surety may waive his right to subrogation. (Tyus v. De Jarnette, 26 Ala. 280.) The surety being entitled to subrogation to all the securities which the creditor acquires from the principal, a release of such securities by the creditor or their negligent loss by him, will discharge the surety to the extent that such securities would have paid the debt of the principal. (Nelson v. Munch, 28 Minn. 314.)

Sec. 916. HOW THE RIGHT TO SUBROGATION ENFORCED.-The surety upon payment of the debt to the creditor, may compel the creditor to assign to him all the securities or obligations of the principal which he may have, if they are not voluntarily given up by the creditor. (Morgan v. Seymour, 1 Reports in Ch. 120; Springer's Admr. v. Springer, 43 Pa. St. 518.)

Sec. 917. WHEN SUBROGATION WILL BE ALLOWED.-In general, to be entitled to subrogation, the surety must have paid the whole debt, and a part payment will not give him the benefit of subrogation, as this would give separate interest in the same debt to surety and creditor. (Hollingsworth v. Floyd, 2 Har. & Gill. [Md.] 87.) And subrogation will not be allowed when it would be inequitable, or to the prejudice of a creditor in reference to the debt for which the surety is liable. (Crump v. McMurtry, 8 Mo. 408; Henley

v. Stemmons, 4 B. Monr. 131.) Though the debt is paid to the creditor, it is still regarded as subsisting so far as may be necessary to support the assignment of collateral security held by such creditor to the surety. This is regarded as an imperative exception to the rule that payment discharges a debt as against the co-debtors in order to make subrogation possible and practicable. If the debt was held to be entirely discharged, all the collateral securities held by the creditor would be likewise discharged, and their assignment to the surety would be defeated. (Edgerly v. Emerson, 23 N. H. 555.) So for the purpose of obtaining indemnity from the principal, the surety after payment is regarded as at once subrogated to all the rights, remedies and securities of the creditor and entitled to all his liens, priorities and means of payment against the principal. (Brandt, Sur. & Guar., Sec. 304.)

By taking a separate indemnity from the principal for his security with knowledge that the creditor holds a mortgage given by the principal to secure the debt, the surety is held to lose his right to subrogation. (Cooper v. Jenkins, 32 Beav. 337.) Other cases hold that the surety may be subrogated to after acquired securities by the creditor though he has taken a separate indemnity. (Brandt, Sec. 307.)

A surety who becomes such during the prosecution of a remedy for the debt against the principal is not entitled to subrogation, at least as regards any prior surety, or prior interest in the property which he seeks

to reach by subrogation. (Patterson v. Pope, 5 Dana [Ky.] 241.)

Subrogation extends to enable the surety paying to enforce the rights of the creditor against a co-surety. While equity restrains a surety from collecting more from any co-surety than his just proportion, the right of subrogation allows him to collect that much the same as the creditor might do it. (Lidderdale v. Robinson, 2 Brock. 159.) Sec. 918. SAME SUBJECT-IN CASE OF A JUDGMENT.-As regards the right of the surety who pays the debt after the same has been reduced to a judgment to be subrogated to such judgment, there is a conflict among the authorities. If the payment is made with intention of extinguishing the judgment it will of course have that effect and defeat subrogation. But if no such intention appears the better opinion is said to be, that the judgment is discharged as regards the creditor's personal rights thereto, but kept alive as between all parties for the purpose of enforcing the rights of the surety. In the absence of apparent intention in the payment it will be presumed to be the intention of the surety to keep the judgment alive for subrogation thereunder. (Neilson v. Fry, 16 Ohio St. 376; Richter v. Cummings, 60 Pa. St. 441; Brandt, Sur. & Guar., Sec. 310.) So it is held that if the surety pays the amount of the judgment and takes an assignment of it, he may be subrogated to the rights of the creditor under it, since his intention not to extinguish the judgment is manifested by the assignment. (Neal