RIGHTS OF SURETY AGAINST CREDITOR.
34. It is not quite clear whether a surety can enforce any remedies on the part of the creditor before actual payment by the surety ; and, of course, as connected with this, what is the effect of a request by the surety to the creditor to proceed against the debtor, and neglect or refusal to comply by the creditor. The objection to discharging the surety on account of such neglect is the fact that the Surety may pay the debt and at once become subrogated to all the rights of the creditor. 6 Md. 210. But where there are courts in the exercise of full equity powers, the surety may insure a prom.pt prosecution either by discharging the obligation and becoming.by substitution entitled to all the remedies pos sessed by the creditor, or he may coerce tha creditor to proceed by an application to a court of equity, 2 Johns. Ch. N. Y. 554 ; though in the latter case he would probably be required to indemnify the creditor against the consequences of risk, delay, and expense. 2 Md. Ch. Dec. 442. The same indemnity would in general be required where a request is made ; but it has been held that a simple request to sue the principal debtor, without a tender of expenses, or a stipulation to pay them, or an offer to take the obligation and bring suit, is sufficient to discharge the surety, unless the creditor at the time of the notice expressly puts his refusal to sue on the ground of the trouble and expense, and offers to proceed if that objection be removed.
18 Penn. St. 460. A creditor is not bound to make use of active diligence against a principal debtor on the mere request of a surety. 13 111. 376.
35. The surety who pays the debt of the principal in full is entitled to have every ad vantage which the creditor has in pursuing the debtor, and for this purpose may have an as signment of the debt, or be subrogated either in law or equity. 15 N. H. 119; 39 id. 150. Whether the remedy will be by subrogation, or whether the suit must be in the name of the creditor, will depend upon the rules of practice in the different states. 38 Penn. St. 98. The right of subrogation, does not depend upon any contract or request by the principal debtor, but rests upon principles of justice and equity, I N. Y. 595 ; 4 Ga. 343, and, though originating in courts of equity, is now fully recognized as a legal right. 11 Barb. N. Y. 159.