There is no need of an express promise on the part of the debtor to indemnify the surety; the promise is implied by law." And part payment of the debt only will give the surety a right to sue for the partial payment made, but no right of action accrues until the surety makes payment to the obligee of the debt, either in whole or in part." An express stipulation by the principal debtor that he will indemnify the surety, as by the giving of a bond of indemnity, would limit the surety to his right to be indemnified to the express contract as stated in the indemnity bond; it would nullify the implied promise so far as anything outside the bond is concerned. Merely taking security for the principal's debt, however, would not have this effect; the security taken would be considered cumulative. The right of the surety to sue the principal for indemnity is not affected by the fact that the principal did not join in the execution of the bond signed by the surety, even though it was agreed the principal was to sign." If the surety makes payment of his obligation by delivering his own note, and it is received as payment of the debt, he may sue the surety at once, the same as if the debt was paid to the creditor in cash. And it would make no difference if the surety himself afterward defaults in the payment of his note." But the surety will never be permitted to make a profit of his payment of the obligation for which he is surety on the default of the principal; the most that he can claim is reimbursement for the money he has actually paid out, with legal interest and the costs he has rea "Martin vs. Ellerbee's Admr., 70 Ala., 326. "Harper vs. McVeigh, 82 Va., 75. 46 School Trustees vs. Sheik et al., 119 Ill., 579. 47 Peters vs. Barnhill, 1 Hill Law (S. C.), 237. sonably been subjected to, and which he has paid out in good faith. So if he makes payment in something other than money, as in personal property of any kind, or he makes payment in real estate, he can only recover the actual value of the property he has turned over to the creditor. On the right of indemnity, the surety can only recover for the amount he has paid out, and, moreover, he can recover nothing for other damages or sacrifices he may be obliged to make incidental to the principal's default. To hold otherwise would open the road to fraud and collusion, the courts have declared repeatedly. 48 "A surety, after the debt has become due, may, without having made payment himself, come into a court of equity and compel the principal to pay the debt, making the creditor a party, that he may be at hand to receive the money. 99 49 The surety stands in the position of an assignee, and may use the remedies of the creditor, at his own risk and cost, however. The above is the statement of the legal principle by the Illinois Court. This principle as stated is one of supreme recognition, and is another of the surety's means of relief from a situation that is usually a difficult one. A surety cannot generally recover indemnity from his principal, where he pays a debt for which the principal is not liable, and so also he could not claim indemnity where at the time of payment he has knowledge of facts which would discharge himself or his principal.50 But where the surety pays the debt, not having knowledge that the consideration for the same had failed, he may still claim indemnity.5 51 Noale vs. Blount, 77 Mo., 235. 1 Gasquet vs. Oakey, 19 La (Curry), 76. SECTION 37. THE RIGHTS AND REMEDIES OF A SURETY AS TO CO-SURETY. Where there is more than one surety obligated for the debt of the principal, the creditor may proceed to collect all of the debt from one of the sureties only. This being true, and since the equitable maxim would compel the remaining sureties to make the obligation an equal one between them, we find the main question between co-sureties is the question of contribution. This equitable right has now been fully recognized by the law courts, and a court of law, now, is the usual forum for seeking such a remedy, except in the case where the law court could not give a full and adequate relief. The remedy then would be sought in a court of chancery. Contribution can be enforced by the surety who paid the debt in an action under the common courts.52 Co-sureties are held bound for contribution even though they are become sureties by different instruments, and the law does not release a surety from contribution simply because one surety did not know that the other was also bound to answer for the same debt.53 A surety for other sureties cannot be considered their co-surety. So where one signs as "security for all prior parties," it was held there could be no contribution between him and the other sureties, but the law will permit the true relation between the several sureties to be shown by parol, in any event, and contribution will be allowed where they are shown to be co-sureties. 54 It is the general rule that one of several co-sureties is entitled to the benefit of indemnity secured by "Porter vs. Horton, 80 Ill. App., 333. Chaffee vs. Jones, 19 Pick., 260. "Singer Mfg. Co. vs. Bennett, 28 W. Va., 16. 3 another, if this indemnity is received after all have SECTION 38. WHEN SURETY'S ACT DISCHARGES CO- It is the rule that where one surety obtains security for his indemnity before he became bound on his obligation, or wherever indemnity obtained by him would inure to his co-sureties, he, the surety, is bound to protect such security for his co-sureties, and if by his act the security is lost, his co-sureties are relieved from their liability to make contribution to him, to the extent to which they are injured; so where a surety by his own negligence loses the security of a lien on certain property, he thereby releases his cosureties from contribution to the extent of the lien so lost.58 SECTION 39. IN WHAT PROPORTION CO-SURETY In an action at law, a surety can only recover of his co-sureties, solvent or insolvent, an aliquot part Steele vs. Mealing, 24 Ala., 285; Miller vs. Sawyer, 30 Vt., 412. St., 624; Lacy vs. Rollins, Bowen vs. Haskins, 45 Miss., 182. of the debt based on the whole number of sureties. This is the rule where the sureties are all liable for an equal amount. But in equity he may recover of the solvent co-sureties a pro rata amount of the money paid by him, on the basis of the number of the solvent sureties, excluding in computation the insolvent cosureties.50 Where the co-sureties are liable for varying sums they are bound in contribution, in proportion to the sums, for which they are bound. SECTION 40. THE EQUITABLE RIGHT OF SUBROGATION. The application of the doctrine of the equitable principle of subrogation is a frequent one. The rule is stated by the Illinois Court as follows: "It seems to be a well settled principle in equity that a creditor who has the personal contract of his debtor, with a surety, and takes property from the principal, as a pledge or security for his debt, should hold the property for the benefit of the surety, as well as himself, and if he parts with it without the knowledge or against the will of the surety, he shall lose his claim against the surety to the amount of the property so surrendered. A surety who pays the debt is entitled to be put in the place of the creditor, and to all the means, and to every remedy, which the creditor possesses to enforce payment from the principal debtor. Property so taken by the creditor is held in trust by the creditor, not only for the creditor's security, but for the surety's indemnity, and these rules of equity are recognized and enforced in courts of law."'60 The rule as given above is of universal application, and to perfect his right to the privileges of subrogation, "Newton vs. Pence, 38 N. E. Reporter, 484. "Kirkpatrick vs. Houk, 80 Ill., 125. This case cites the case of Neff's Appeal, 9 Watts & |