drew up the opinion of the Court. If the facts would warrant the inference, that the transfer of the note to the plaintiffs was made merely “ with the purpose and intent of releasing the security obtained by the attachment,” the verdict should stand. But upon a careful examination we think that no such inference can be drawn. The plaintiffs had become sureties to the deputy sheriff for Joseph Lovell. We think the reasonable inference from the evidence is, that the plaintiffs paid the debt, and so obtained a control over the suit, for the purpose of saving themselves from loss on account of their undertaking to the officer. In the absence of express proof of malice or of an intent to defraud the defendant, it does not follow that the prejudice occasioned to the defendant by the accidental consequence of the act done by the plaintiffs for their own security, should be deemed to be fraudulent. The plaintiffs were more vigilant than the defendant. Both stood in the relation of sureties for Joseph Lovell, and neither could have any legal reason to complain of the other for the results of the exercise of more legal diligence to secure himself.
But it is contended that the defendant, “ upon the principles of the law respecting the relation of principal and surety, ought to be, discharged.”
The undertaking of a surety is absolute ; and not conditional, as is the engagement of an indorser. The creditor has his remedy immediately against both promisors or either, upon a joint and several note. Mere delay will not prejudice his claim, unless accompanied by stipulations varying the contract of the principal. Hunt v. Bridgham, 2 Pick. 581, [2d ed. 585, n. 1 and 3,] and cases there cited.
The surety has been placed upon better grounds in the courts of equity. Those courts, upon the application of a surety after the debt has become due, will decree that the principal shall pay it. Ranelagh v. Hughes, 1 Vern. 190. And the creditor will be compelled to sue the principal,
*311when the surety apprehends danger from delay. Hayes v. Ward, 4 Johns. Ch. R. 132.1 But that proceeding must be upon an offer of indemnity against the consequences of risk, delay, or expense.
It is however still understood in equity, that the surety is a guarantee, and that it is his business to see that the principal pays the debt. Wright v. Simpson, 6 Ves. 734. Lord Eldon held it to be clear, “ that if the surety deposits the money and agrees that the creditor shall be at no expense, he may compel the creditor to prove under a commission oi bankruptcy.”
We are of opinion that a refusal of the creditor to sue the principal upon a mere request of the surety, unaccompanied with an offer of indemnity against the costs and charges of the suit, is not a defence at law against the suit of the credi tor, notwithstanding the principal may have become insolvent afterwards.2
A different decision would be the application of a new rule here, which we think unnecessary and inexpedient. There is already a remedy for the surety. Let him pay the debt according to his undertaking, and. sue the principal himself,3 or come in and prosecute the suit pending in the name of the creditor, but at the risk and cost of the surety. The creditor under such circumstances would become a trustee for the surety. In the matter of M'Kinley, 1 Johns. Cas. 138 ; Clason v. Morris, 10 Johns. R. 539. If in the case at bar the request of the defendant to the promisee not to transfer the note, should be considered as equivalent to an original request to sue it, there would still be a fatal omission on the part of the defendant. His request should have been accompanied with an offer of indemnity against the costs and expenses of the suit. There was no such offer. The creditor may abandon his suit' against the principal and resort to the surety for payment. Pothier on Obligations (by Evans,) 261. If, for example, the promisee had attached the real estate of the principal, which could only be taken subject to appraisement, or the title of which was doubtful, or if there were an attachment upon personal property, the validity of which was questionable, or if he could obtain his debt presently in money from any one having an interest in the matter ; — in such cases we think that the promisee might fairly disentangle himself from litigation by a transfer of the note. The creditor in such cases would not be under any obligation to carry on the suit at his own expense and risk for the benefit of the surety.
The result is that the verdict must be set aside and a new trial granted.
See also King v. Baldwin, 2 Johns. Ch. R. 131 ; Taylor v. Heriot, 4 Desaus. 227 ; Stump v. Rogers, 1 Ohio R. 533.
See Crane v. Newell, 2 Pick. (2d ed.) 614, n. 1 ; Beardsley v. Warner, 6 Wendell, 610 ; Warner v. Beardsley, 8 Wendell, 199; Manchester Iron Manuf. Co. v. Sweeting, 10 Wendell, 162; Huffman v. Hulbert, 13 Wendell 376, 377; Frye v. Barker, 4 Pick. 382; Davis v. Huggins, 3 N. Hamp R 231 ; Croughton v. Duval, 3 Call, 69; Moore v. Broussard, 20 Martin’s (Louis.) R. 277; Pickett v. Land, 2 Bailey, 608; Andrus v. Beall, 9 Cowen 693.
See Ingalls v. Dennett, 6 Greenl 79.