quired the notice to be sufficiently specific so that the creditor may know the surety intends to put him upon his equitable duty. It is intimated that the creditor should be made to understand that he must choose between diligent pursuit of the principal obligor and a release of the surety. The rule in Pain v. Packard is not applicable if the guarantor's demand was made prior to the maturity of the obligation. Notice before maturity does not impose on the obligee any duty to proceed against the principal. Neither is it applicable if the principal was insolvent when the surety notified the obligee to proceed against him." succeeded in this court (17 Johns. 386) in reversing the decree of the Chancellor, it was in opposition to the votes of all the other justices of the Supreme Court who took part in the decision. The decision was made by the casting vote of the President against the opinions of some of the most distinguished lawyers in the State, who were then members of this court as Senators. It also stands in opposition to the decisions of most, if not all of the States in the Union, where the question has arisen. ..." Warner v. Beardsley (1831) 8 Wend. (N. Y.) 194. Chief Justice Spencer, above referred to, refused to apply the Pain v. Packard doctrine in an action of assumpsit by the indorsee of a note against the surety who had requested him to proceed against the prin cipal, because "the indorser, though in the nature of a surety, is answerable upon an independent contract, and it is his duty to take up the bill when dishonored." Trimble v. Thorne (1819) 16 Johns. (N. Y.) 155, 8 Am. Dec. 302. "What principle such a defense should ever have found to stand upon in any court, it is difficult to see. It introduces a new term into the creditor's contract. It came into this court without precedent, Pain v. Packard was afterward repudiated even by the Court of Chancery, King v. Baldwin, 17 Johns. 554. Platt, J., and Yates, J., took that occasion to acknowledge that they had erred in Pain v. Packard, as Senator Van Vechten showed most conclusively that the whole court had done."' Herrick v. Borst & Warnick (1843) 4 Hill 650, 656. "It was against opposition that it (the doctrine of Pain v. Packard) was adopted into the law of this State." Hunt v. Purdy (1880) 82 N. Y. 486, 37 Am. Rep. 587. See discussion of Pain v. Packard by the United States Supreme Court, in which no opinion on the controversy was expressed, in Sprigg v. Bank of Mt. Pleasant (1836) 10 Peters 257, 266, 9 L. Ed. 255, 264. 3 Hunt v. Purdy (1880) 82 N. Y. 486, 37 Am. Rep. 587. 4 Hellen v. Crawford (1862) 44 Pa. St. 105, 84 Am. Dec. 421. 5 Herrick v. Borst and Warnick (1843) 4 Hill (N. Y.) 650. See Snow v. Horgan (1896) 18 R. I. 289, 291. Some legislatures have codified the rule of the case, others with modifications. The reader should consult the code of the jurisdiction in which he is interested to determine such statutory changes. § 123. Majority view. Most jurisdictions do not incline towards the doctrine of Pain v. Packard. It must be kept in mind that a surety is legally liable to the obligee, but his remedies to reimburse himself are both legal and equitable. By the New York doctrine there is read into the original contract a condition that if the creditor pays no attention to the demand of the surety who asks him to proceed against the principal, he releases the surety. This permits the surety to control for himself the action of the creditor. The majority of the cases take the view that the right of the surety to compel the obligee to collect from the principal obligor may be enforced in equity only. By this reasoning, no option is vested in the surety to control the acts of the creditor, as is the result of the application of the New York doctrine of Pain v. Packard. The surety is entitled to pay the obligee, and then proceed against the principal in any manner the creditor could have done." 6 Among the cases following Pain v. Packard, wholly or partially, see: Goodman V. Griffin (1830) 3 Stewart (Ala.) 160 (decided under a statute, which the court said was the same as the common law); Howle v. Edwards (1892) 97 Ala. 649, 11 So. 748; Darby v. Berney National Bank (1892) 97 Ala. 643, 11 So. 881 (these last two cases were decided under the statute also); Thompson et al. v. Robinson, Sheriff, et al. (1879) 34 Ark. 44 (decided under a statute); Martin et al. v. Skehan (1875) 2 Colo. 614; Scales et al. v. Cox (1886) 106 Ind. 261, 6 N. E. 622 (decided under a statute providing the surety may notify the obligee in writing to proceed against the principal); Thompson v. Watson and Gibson (1837) 10 Yerger (Tenn.) 362 (de cided under a statute). The reason that Pennsylvania follows Pain v. Packard is said to be that "in Pennsylvania there is no court of Chancery, and the common law Courts exercise chancery powers to a very limited extent-that for this reason a surety in that State cannot, as in other States, compel the creditor to sue the principal. He is, therefore, without remedy, unless he can protect himself in this mode.' Dane v. Corduan, Adm'r (1864) 24 Cal. 157, 165, 85 Am. Dec. 53. 7"An examination of the numerous authorities upon this subject will show that in a majority of the states, where the question is not regulated by statute, the courts have held that the surety cannot release himself from liability by simply This question of the right of the surety to control the acts of the creditor in proceeding against the principal, depends upon the law of the place which governs the contract itself. The right of the surety to discharge himself is a constituent part of his undertaking. It is unlike the defense of the statute of limitations, and is not governed by the law of the forum, but by the law which controls the contract.R A view modifying that of Pain v. Packard as well as the majority, is that in order to release the surety by demand on the creditor to proceed against the principal, the demand must be accompanied by an offer of indemnity against costs in the event the obligee's suit against the principal proves to be futile. § 124. The surety's rights in equity prior to payment of the principal's debt. It is the duty of the principal to save his guarantor harmless from all injury caused by the relation. So strong is the surety's position that he may, through chancery processes, follow the property or credits of the principal into the hands of others and compel them to be applied to his relief.10 If both principal and surety have pledged or incumbered property to secure a debt of the former, the surety is entitled to have that of the principal obligor sold first to satisfy the debt. A purchaser or inheritor of the surety's incumbered property has the same right to enforce the sale of the principal's mortgaged property.11 Where the principal is a devisee under the surety's giving notice to the creditor to enforce his demand against the principal debtor."' Quillen v. Quigley et al. (1879) 14 Nevada 215, 219. Accord: Brandt on Suretyship (1905, 3d Ed.) Sec. 265; Dane v. Corduan, Adm'r (1864) 24 Cal. 157, 85 Am. Dec. 53; Bull v. Allen et al. (1848) 19 Conn. 101; Ingals et al v. Sutliff (1887) 36 Kan. 444, 13 Pac. 828; Benedict v. Thoe et al. (1887) 37 Minn. 431, 35 N. W. 10; Smith v. Freyler et al. (1883) 4 Mont. 489, 1 Pac. 214, 47 Am. Rep. 358; Findley v. Hill et al. (1880) 8 Oregon 247, 34 Am. Rep. 578; Snow v. Horgan (1896) 18 R. I. 289; Harris v. Newell (1877 )42 Wis. 687. 8 Tenant v. Tenant (1885) 110 Pa. St. 478, 1 Atl. 532. 9 Bellows et al. v. Lovell (1827) 5 Pick. (Mass.) 307; Dillon v. Russell and Holmes (1877) 5 Neb. 484, 490. 10 McConnell v. Scott et al. (1846) 15 Ohio 401, 45 Am. Dec. 583. 11 Hoppes et al. v. Hoppes et al. (1890) 123 Ind. 397, 24 N. E. 139, 140. He who asks the aid of chancery must work out his equities through those of the party to whose equities he seeks to be substituted. He can have no equity if such party is entitled to none. Miller v. Stout et al. (1878) 5 Del. Ch. 259, 261. will, and also a defendant with the surety's representatives in a suit to subject the land to payment of the judgment obtained by the creditor, other heirs of the surety may require the principal's other property to be exhausted before the land devised to them is sold to satisfy the claim of the obligee.12 Equitable relief may be secured by a bill to enjoin the sale of the surety's property until that of the principal is exhausted, by a bill to subrogate the surety to the creditor's rights against the property of the principal obligor pledged to pay the debt, or by marshaling the securities and applying them in satisfaction of the debt in the order in which they are equitably chargeable.18 But this equitable relief is restricted by equitable considerations.14 It is not usually available (a) to sureties who do not appear to be such from the face of the undertaking; (b) nor to a surety who does not offer to indemnify the creditor or to pay what is not collected from the principal; (c) nor to securities, not given by the principal, but acquired from him by the initi ative of the obligee, as, by attaching his property; 15 (d) nor as 12 Beckman et al. v. Duncan et al. (1888) W. Va. 5 S. E. 690; rehearing 9 S. E. 1002. 13 Philadelphia & R. R. Co. v. Little, Receiver (1886) 41 N. J. Eq. 519, 7 Atl. 356, 362. 14The doctrine is a fundamental doctrine of equity, and equitable relief will be afforded according to the circumstances of the particular case, as occasion may arise, where the equitable rights of the surety may be protected without prejudicing the substantial rights of the creditor. "The surety's right to have his principal's property applied first in satisfaction of the debt being purely an equitable right, there may be circumstances which will in equity compel him first to pay the debt, or submit to the sale of the property, and afterwards seek sub against a creditor in a case where he was actively pursuing his remedy to enforce satisfaction, when the surety intervenes and claims the right to take the matter out of his hands; 16 (e) nor if the surety is seeking to foreclose a mortgage given him by the principal as indemnity, until after the debt is paid.17 § 125. Exoneration. Very often the term exoneration is used in referring to the right of one accessorily liable to maintain a bill in equity against those primarily liable to reimburse himself.18 It is employed when the suit in equity is against the principal obligor prior to the discharge of the debt,19 and bankrupt of his own property, but is a security attained by the creditor against other parties to the bill by a proceedings in invitum.'' Justice Story in his opinion In re Babcock (1844) 3 Story 393, Federal Case No. 696. 16 Gilliam et al. v. Esselman et al. (1857) 5 Sneed (Tenn.) 86. 17 Walker v. Sutton (1917) Mo. App. 195 S. W. 51. 18 This language was quoted with approval in Comstock V. Corbin (1916) 191 Mich. 639, 158 N. W. 106, 107: "Exoneration is a right which exists between those who are successively liable for the same debt, by which, when a party who is secondarily liable has paid or satisfied the principal's obligation or any part thereof, he is entitled to be reimbursed by the principal debtor, and can bring a bill in equity for 60 A. S. R. 135. Accord: Williams v. Coleman et al. (1924) 70 Cal. 400, 233 Pac. 397, 399; Sassaman et al. v. Root et al. (1923) 37 Idaho 588, 218 Pac. 374, 376; Keach et al. v. Hamilton, Assignee (1899) 84 Ill. App. 413; Thigpen, Executor et al. v. Price et al. (1867) 62 N. C. 146; Hale, Executor v. Wetmore et al. (1855) 4 Oh. St. 600; Pride v. Boyce, Adm'r (1839) Rice's Eq. (S. C.) 275, 33 Am. Dec. 78; Norton v. Reid and Sitton (1867) 11 S. C. 593; Bishop v. Day (1841) 13 Vt. 81, 37 Am. Dec. 582; Paxton v. Rich (1888) 85 Va. 378, 7 S. E. 531, 1 L. R. A. 639. "After a debt for which a surety is liable has become due, he may, without paying the debt and without being called upon by the creditor, file a bill in equity to compel the principal to pay the debt; it being unreasonable that he should always be subject to a liability to pay, even though not molested for the debt." Miller v. Stout et al. (1878) 5 Del. Ch. 259, 265. Complainant, who was accommodation indorser, by a bill in equity in the nature of a creditor's bill, prior to payment, was able to reach the property of a prior indorser, who had promised to indemnify him. |