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, 59 Newton vs. Pence, 38 N. E.

Reporter, 484. 60 Kirkpatrick vs. Houk, 80 I11., 125.

This case cites the case of the surety is in no way bound to signify his intention to avail himself of the right; the circumstances of the surety's position create the right; he can lose it only by waiving his right to it, or delaying unduly his claim to the same; that is, by being guilty of laches. A surety ought to use due diligence in asserting his claim to subrogation. The right of subrogation does not arise to one who pays the debt of another as a mere volunteer, that is, one who pays without being liable to pay.61 A surety ordinarily is not entitled to subrogation until the whole debt is paid, but the payment may be in part by the principal, and in part by the surety. The learned jurist, Marshall, has remarked in passing on the right of a surety to be subrogated to the creditor's rights against his co-surety, holding that he had such right; he spoke as follows: "Where a person has paid money for which others are responsible, the equitable claim which such payment gives him on those who were so responsible, shall be clothed with the legal garb with which the contract he has discharged was invested, and he shall be substituted to every equitable intent and purpose in the place of the creditor whose claim he has discharged. This principle of substitution is completely established in the books, and being established, it must apply to all persons who are parties to the security, so far as is equitable. The cases suppose the surety to stand in the place of the creditor as completely as if the instrument had been transferred to him, or to a trustee for his use. Under this supposition, he would be at full liberty to proceed against every person bound by the instrument. Equity would undoubtedly restrain him from obtaining more from any individual than the just proportion of that individual; but to that extent his claim upon his cosurety is precisely as valid as upon his principal."62

Neff's Appeal, 9 Watts & Serg., 36; 2 American Leading Cases, 5th Edition, 403.

61 Suppinger vs. Garrels, 20 I11. App., 625.