ENFORCEMENT OF OBLIGATION.
24. As the surety-cannot be bound to any greater extent than the principal, it follows that the creditor cannot pursue the surety until he has actjuired a full right of action against the principal debtor. A surety for the per formance of any future or executory contract cannot be called upon until there is an actual breach by the principal. A surety on a pro missory note cannot be sued until the note has matured, as there is no debt until that time. All conditions preoedent to a right of action against the principal must be complied with. Where money is payable on demand, there must have been a demand and refusal. But it is not necessary that the creditor should have exhausted all the means of ob taining hiS debt. In some cases, which will be treated of in detail, it may be requisite to notify the surety of the default of the debtor, or to sue the debtor ; but this depends upon the particular conditions and circumstances of each case, and cannot be considered a Cbil dition precedent in all cases. Even where the creditor has a fund or other security to resort to, he is not obliged to exhaust this before resorting to the surety ; he may elect either remedy, and pursue the surety first. But if the surety pay the debt, he is entitled to claim that the creditor should proceed against such fund or other security for his benefit. 15 Md. 308 ; 4 Jones, Eq. No. G. 212 ; 33 Ala. N. s. 261; 2 Head, Tenn. 549.
And if the creditor, having received such colla.teral security, Elva. himself of it, he is bound to preserve the original debt ; for in equity the eurety will be entitled to subroga tion. 38 Penn. St. 98. In Kentucky, a judgP ment against the principal may be aseigned to the surety upon payment of the debt. 1 Mete. Ky. 489, So in North Carolina, 4 Jones, Eq. No. C. 262. But an assignment of the debt must be for the whole : the surety eannet pay a part and claim an assignment pro mato. 39 N. 11. 150.
25. In general, it is not reciuisite that notice of the default of the principal should be given to the surety, especially when the engagement is aheolute and for a definite amount. Theobald, Surety. 137 ; 14 East, 514. Laches in giving notice to the surety upon a draft of the default of the principal can only be set up as a defence in an action against the surety, in cases where he has suffered damage thereby, and then only to the extent of that damage, 3 N. Y. 203 ; it is no defence to an action against a surety on a bond that the plaintiff knew of the default of the principal, and delayed fur a long time to notify the surety or to prosecute the bond. 1 Zabr. N. J. 100.
If atter a joint judgment against a prin, cipal and hie surety on their joint and several bond, the eurety die, the obligee has no re medy in equity, against his executor. 9 How. 83.