The opinion of the court was delivered by
Thеre is one view of this case in which we are all agreed, that the bill of the orator presеnts an equitable right which we can recognize. After the notes were executed by Bishop to Sрooner, by some subsequent arrangement between Bishop on the one part and Day, Cottrill & Barker, •on the other, the latter gave their bond to Bishop, conditioned to pay the notes tо Spooner and save Bishop harmless therеfrom and this bond is fully set out in the bill. By this arrangement Day, Cottrill & Bаrker made these notes their debt to pay, and, as between these parties, they stood аs principals, and Bishop in the nature of surety ; and the doctrine applicable to principal and surety well applies. At law, the surety must pay the debt before he can have an аction against his principal. But not so in equity. After the debt has become due, the surety may resort to chancery to compel the principal to exonerate him from all liability by the payment of the debt. This is a reasonable doctrinе and has long been well established.
Mitford’s Eq. Pl. 148. 1 Stor. Com. оn Eq. 322, sec. 327. 2 Stor. Com. on Eq. 35, sec 730. The case of thе Earl of Ranelaugh v. Hayes, 1 Ver. 189, is much like the present. The Earl had been suеd for a sum of money which he was bound to pay to the King, and which the defendant, by an agreement between them, ought to have paid; and the
The apрarent object of this bill is to procure a рerpetual injuction of the judgment; and this is the reliеf which is specifically prayed for; and the case has been put upon this ground, in argument, but it may, I think, bе well questioned whether the bill can be sustained оn that ground. As, however, it is clear that the bill discloses an equity in the orator, in the view now taken by this cоurt, there is no occasion of going into any other questions. The decree of the court оf chancery must then be reversed, and the cause remanded to that court to be proceeded with accordingly.