Judgment obtained against the principal and surety does not destroy the relation as between themselves ; Pettee v. Flewellen, 2 Ga. 239; La Farge v. Herter, 11 Barb. (N. Y.) 159. If a judgment is recovered against a debtor and surety separately for the same amount, the surety can enforce the judgment against his principal when assigned to him after he had paid the amount of the judg ment; Clason v. Morris, 10 Johns. (N. Y.) 524.
A surety in a judgment to obtain a stay of execution is not entitled to be substi-1 tuted on paying the judgment, as against subsequent creditors ; Appeal of Armstrong, 5 W. & S. (Pa.) 352. Nor can the surety be subrogated, although he has paid a ment, if he has sued his principal and fail ed to recover; Fink v. Mahaffy, 8 Watts (Pa.) 384.
If a judgment is recovered and the sure ties pay, they are entitled to be subrogated;' Pott v. Nathans, 1 W. & S. (Pa.) 155, 37 Am. Dec. 456; McDougald v. Dougherty, 14 Ga. 674 ; Ottman v. Moak, 3 Sandf. Ch. (N. 431; even where a mortgage had been giv en them, but which turned out to be in valid; Miller v. Pendleton, 4 Hen. & M. (Va.) 436. This seems to be contradicted in Carr's Adm'r v. Glasscock's Adm'r, 3 Gratt. (Va.) 343.
Entry of satisfaction on a judgment does not destroy subrogation; if the entry was not Made at the instance of the surety; Baily v. Brownfield, 20 Pa. 41.
Where the surety has become liable on the contract of his principal, when the principal fails to perform the contract, the surety may pay and be subrogated; New Hampshire Savings Bank v. Colcord, 15 N. H. 119, 41 Am. Dec. 685; thus, where the sure ty was held on a bond which he was ob liged to pay; Fox v. Alexander, 36 N. C. 340; McDaniels v. Mfg. Co., 22 Vt. 274 ; and this even where the bond was given to the U. S. to pay duties on goods belong ing to a third person; Enders v. Brune, 4 Rand. (Va.) 438. And where the bond was given for the payment of the price of land, he was allowed to sell the land ; Franklin Ins. Co. v. Drake, 2 B. Monr. (Ky.) 50. But it is said the mere payment does not ipso facto subrogate him ; Rittenhouse v. Lever ing, 6 W. & S. (Pa.) 190. The surety on a bond of a county auditor is entitled to pro ceed by subrogation, after it has paid the county the loss occasioned by the auditor ; National Surety Co. v. Bank, 156 Fed. 21,
84 C. C. A. 187, 14 L. It. A. (N. S.) 155, 13 Ann. Cas. 421.
If the surety be also a debtor, there will be no substitution, unless expressly made; Appeal of Erb, 2 Pen. & W. (Pa.) 296 ; and the person who claims a right of subroga tion must have superior equities to those opposing him ; Harrisburg Bank v. German, 3 Pa. 300.
Sureties of a surety, and his assignee, are entitled to all the rights of the surety, and to be substituted to his place as to all remedies against the principal or his estate; Elwood v. Deifendorf, 5 Barb. (N. Y.) 398; McDaniels v. Mfg. Co., 22 Vt. 274.
A surety cannot compel the creditor to exhaust his security before coming on the surety; 37 N. J. L. J. 370.
The debt of the acceptor of a bill is not extinguished by the payment of the bill by the indorser or drawer ; for the same rights will remain against him, in their favor, which the holder had himself, unless he is a mere accommodation acceptor; Story, Bills § 422. See a limitation in Per Lee v. Onder donk, 19 Barb. Y.) 562. But if payment is made by an indorser who had not re ceived due notice, it is at his own risk, and he can ordinarily have no recourse over to third persons ; Chitty, Bills, c. 9; Har. Subr. 174.
An accommodation acceptor is not en titled on payment to a security given to an accommodation indorser; Gomez v. Lazarus, 16 N. C. 205.
An accommodation indorser who is ob liged to pay the note is subrogated to the collateral securities ; Toler v. Cushman, 12 La. Ann. 733. This subrogation operates in the civil law for the benefit of a holder by intervention (i. e. who pays for the honor of the drawer).
Payment of a note by an indorser actual ly bound, produces the legal effect of sub rogating him to the rights of the last hold er; Seixas v. Gonsoulin, 40 La. Ann. 351, 4 South. 453. One paying the note of another by mistake is not entitled to be subrogated to the rights of the payee; Charnock v. Jones, 22 S. D. 132, 115 N. W. 1072, 16 L. K. A. (N. S.) 233.
This species of subrogation (by indorse ment) is to be distinguished from that which a surety on a note has when he is compelled to pay. Such surety is entitled to the benefit of all the securities which the holder has; Barnes v. Morris, 39 N. C. 22 ; Hill v. Voorhies, 22 Pa. 68 ; Perley v. Langley, 7 N. H. 236.