Himes against Keller, 3 Watts & Serg. 401

The opinion of the Court was delivered by Sergeant, J. The' question is whether, considering Himes as Joseph A. Ege’s representative, he has the right to claim the whole amount of this judgment, or only one-half; or in other words, whether P. Ege is to be considered as principal, or co-surety.

The principle has been adopted by courts of chancery, that a surety in a bond or other security, paying it to the creditor, is entitled to a cession of the debt, and a substitution or subrogation to all the rights and actions of the creditor against the debtor; and the security is treated as between the surety and debtor, as still subsisting and unextinguished. 1 Story’s Eq. 590. The right is based on the principles of natural justice and equity, 4 Johns. Ch. 130; 1 Watts Serg. 157; and it has been frequently recognised by this court. Goswiler’s Estate, (3 Penn. Rep. 203); Erb’s Appeal, (2 Penn.

Rep. 296); 1 Watts <§’ Serg. 420. Were the question here merely between Joseph A. Ege, or his representative, and Peter Ege, there could be no difficulty in treating Peter Ege as principal; because he has himself asserted it by the writing of the 12th of April 1839; or perhaps without this, less strictness might be required as between themselves.

But it seems there are intervening creditors of Peter Ege, whose rights would be affected by making this substitution now; and it has been held by this court, that a substitution which will work a prejudice to other creditors, not. parties to the arrangement, will be made only in a clear case. Goswiler’s Estate, (3 Penn. Rep. 203). In the case before us, it is a matter of doubt in what light Peter Ege was to be considered before those judgments were rendered—'Whether as co-surety or principal.

It appears that it was in consequence of his being indebted to Woodburn, that he signed the bond; but though this may have been his motive, yet there was no agreement or understanding between him and Woodburn, what was to be the effect of his signing this judgment. It does not appear it was to be an extinguishment of Woodburn’s claim against him, or that Woodburn released him. On paying Woodburn’s debt, he might perhaps have claimed against Woodburn the rights of a surety. His position, to say the least, was equivocal, liable to shift according to subsequent circumstances.

We think the case is therefore not one in which the equity of substitution is so clear that it ought to be applied. Judgment affirmed.