v. Nash, 23 Ohio St. 483; Thompson v. Palmer, 3 Rich. Eq. 139.) But there are cases which deny the right of a surety to be subrogated to a judgment which he has paid for the principal, it being considered as extinguished by such payment, and this has been held in cases where the surety took an assignment of such judgment when paying it. (Laval v. Rowley, 17 Ind. 36; Tiddy v. Harris, 101 N. C. 589; Chandler v. Higgins, 109 Ill. 602.)

So by the weight of authority the surety who pays a specialty debt of the principal, that is, one under seal, is entitled to rank as a specialty creditor being subrogated to the right of the former creditor, unless a contrary intention is manifested at the time of the payment. (Lumpkin v. Mills, 4 Ga. 343.)

Sec. 919. EXTENT OF THE RIGHT OF SUBROGATION.-The surety entitled to subrogation is generally entitled to all the securities which the creditor may hold, this is said to be the equitable principle and based on natural justice. "A note, bond, mortgage, pledge and judgment are all equally securities for the debt and collateral to it. If the payment by the surety extinguishes one of them, why does it not extinguish them all? The reasoning which makes a distinction is highly technical and certainly has no foundation in equity." (Brandt, Sur. & Guar., Sec. 314, citing Gerber v. Sharp, 72 Ind. 553.) In England, by the Mercantile Law Amendment Act (19 and 20 Victoria, ch. 97, sec. 5), parliament has provided that the surety upon payment shall have the right to have

assigned to him or a trustee for him, "every judgment, specialty or other security which shall be held by the creditor," and this whether the judgment is deemed satisfied at law by the payment or not.

The surety is entitled to be subrogated to the rights under a mortgage given by the principal to the creditor in respect to the debt, and may with or without a formal assignment of such mortgage have it foreclosed, in his own name, and apply the proceeds to indemnify himself. (Gossin v. Brown, 11 Pa. St. 527; McLean v. Towle, 3 Sandf. Ch. 117; Beaver v. Slanker, 94 Ill. 175.)

And it is held that a party indemnifying the surety, and who has paid the debt for which the surety was bound, is entitled to subrogation to the same extent as the surety would have been. (Rittenhouse v. Levering,

6 Watts & Serg. 190.)

So a third person taking property of the principal charged with the lien of the surety on subrogation will be regarded as a trustee of such property and subject to all the equities which the surety acquires by subrogation, if taken with notice of the facts. (Drew v. Lockett, 32 Beav. 499.)

The sureties of officers, administrators, guardians, and the like, are entitled to be subrogated to such rights as the obligee may have against the principal. And the sureties of a guardian may be subrogated to the remedies of the ward against such guardian before judgment and execution against him, if they are legally bound to pay, or where the principal is insolvent before payment.

(Brandt, Sur. & Guar., Secs. 317-319; Fishback v. Weaver, 34 Ark. 569.) To be subrogated to the lien of the State or county, where such lien is statutory, the surety must allege and prove their right of subrogation and the extent of it. (Watts v. Eufaula Natl. Bank, 76 Ala. 474.) Otherwise the surety is entitled to be subrogated to the rights of the State or county and have them enforced for his benefit as in the case of individual creditors. (Boltz's Estate, 133 Pa. St. 77.)

A surety for a part of a debt is not entitled to be subrogated to a security given the creditor by the principal at another time, and for a separate and distinct part of the same debt. (Wade v. Coope, 2 Simons 155.) And it is held that the surety will receive the creditor's right to set aside a fraudulent conveyance by the principal of his property, though such conveyance was made before the surety paid the debt. (Tatum v. Tatum, 1 Ired. Eq. 113.)

Sec. 920. WHEN CREDITOR ENTITLED TO SECURITIES HELD BY THE SURETY. -Securities given by the principal to the surety for indemnity against the payment of the debt, are generally subject to the equitable claim of the creditor and may be taken for his indemnity, though they did not influence him in giving credit to the principal, or were not known of by him. (Kramer & Rahm's Appeal, 37 Pa. St. 71; Owens v. Miller, 29 Md. 144.) The creditor may take such security without having exhausted his remedies at law, or reducing his debt to a judgment. (Kinsey v. McDearmon, 5 Cold. 392.) The surety is regarded as

a trustee for the benefit of the creditor, and such trust subsists until the debt is paid, and may be enforced against any one taking the trust property with notice of its character. (Eastman v. Foster, 8 Met. 19; Carpenter v. Brown, 42 Miss. 28.) And it is held that the creditor would be entitled to a judgment confessed by the principal in favor of the surety after the surety had been discharged. (Crosby v. Crafts, 5 Hun 327.) But it is held that where the indemnity fund or security given by the principal to the surety is "against a contingent liability," there can be no substitution in favor of the creditor until the liability has become absolute. "If a mortgage or other security is given to the surety, not to secure the debt or provide a fund for its payment, but to save harmless from a contingent liability or loss, that contingency must come or the injury be sustained before a right to the indemnity inures to the creditor." (Per Simrall, J., in Osborn v. Noble, 46 Miss. 449.) It is also held that indemnity given by a stranger to the surety, or by a co-surety, cannot be claimed by the creditor by subrogation. (Taylor v. Farmer's Bank, 87 Ky. 398; Hampton v. Phipps, 108 U. S. 260.) Nor can the creditor be subrogated to personal indemnity given the surety, that is, not given as a pledge for the payment of the debt, after such surety has been discharged, since the possibility of the surety being damnified has ceased with his discharge. (Constant v. Matteson, 22 Ill. 546.)

NEGOTIABLE INSTRUMENT CODE

OF OHIO.

As enacted April 17, 1902; in effect January 1, 1903. SUBDIVISION I. NEGOTIABLE INSTRUMENTS IN GENERAL.

RE-SUBDIVISION I. FORM AND INTERPRETATION.

Sec. 3171. [Form of negotiable instrument.] An instrument to be negotiable must conform to the following requirements:

1. It must be in writing and signed by the maker or drawer;

2. Must contain an unconditional promise or order to pay a sum certain in money;

3. Must be payable on demand, or at a fixed or determinable future time;

4. Must be payable to order or to bearer; and

5. Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.

Sec. 3171a. [Certainty as to sum; what constitutes.] The sum payable is a sum certain within the meaning of this chapter although it is to be paid: