When the surety's contract or the guarantor's contract is the same as the principal's, he may be sued before the principal is sued, and as soon as the principal is in default, because the promissor in the suretyship contract is likewise then immediately in default.4 The bringing of the suit alone is sufficient demand as to the surety in such a case; he is bound to observe the default of his principal. It is also held that the creditor is not bound to exhaust any remedies he might have on mortgage security, which he has also taken to secure the debt, but he may proceed at once against the surety personally. Nor would the bankruptcy of the principal debtor, make it necessary for the creditor to delay his action against the surety, and proceed to file his claim in the bankruptcy court and await the disbursement of the bankrupt's estate; nor is he bound to delay his action even though the claim has been filed in the bankruptcy court against the bankrupt's estate. Some states have adopted the rule of the civil law, and give the surety the right to compel the creditor to proceed first to sue the principal debtor, at the expense of the surety, a bond usually being required of the surety to protect the creditor against loss. A guarantor who guarantees payment of a debt at some time certain is an absolute guarantor, and may be sued if the debt is not paid, without first suing the principal, but where the guaranty is made conditional, by the promise reading that the guarantor is to be considered as a conditional guarantor, as for instance a guarantor for the collectibility of the debt, then the creditor must exhaust his legal remedies in an endeavor to make collections, or show authoritatively that a suit against the principal debtor followed by an execution, or other proper steps to collect, would be unavailing.5 Exhausting his remedies against the principal debtor is held to be a condition precedent to the creditor's right to hold the guarantor, unless the guaranty is an absolute one.

3 157 I11., 57.

4 Hoey vs. Jarman, 39 N. J. L., 523; Redfield vs. Haight, 27 Conn., 31.

5 Lemmon vs. Strong, 55 Conn., 443; French vs. March, 29 Wis., 649.