WATKINS v. WORTHINGTON.— 2 BLAND. 505

circumstances of the contract itself; and of shewing that the other
obligors, who were bound with the deceased, are insolvent. Thus
assuming', as established matters of fact, until the contrary is
shewn, that the, deceased was a surety only; that the principal
debtor, and all the other obligors, are well able to pay on demand;
and that the creditor, knowing all this, is making an unjust attempt
to oppress the representatives of the * deceased; or to obtain
satisfaction from his estate, to the prejudice of his other cred- 529
itors.

The assumption of the truth of these allegations, and throwing
the burthen of proving the contrary upon the creditor, is manifestly
at variance with that equity by which all other analogous cases
between debtor and creditor is grounded. It is laid down, in all
such cases, that he, whether he be in realty principal or surety, on
whom the creditor calls, must pay; and that the holder of the
security may lay hold of the surety even in circumstance under
which the surety may not have the same benefit that the creditor
had. Cary's v Rep. 17. With the exception only of those cases
where there is no risk, delay, or expense, as where the money is in
the next room, or where the surety indemnifies the creditor, or depo-
sits the money, and undertakes, that he shall be at no expense,
then the creditor may be compelled to do what he can for the
benefit of the surety. Ex parte Wildhan, 1 Atk. 110; Gallon v.
Hancock, 2 Atlc. 435; Wright v. Simpson; 6 Ves . 734; Ex parte Ken-
dall, 17 Vest. 519; Union Bank v. Laird, 12 Wheat. 300. And this
is the rule of the civil law; Kames' Pri. Eq. b. 1, p. 1, ch. 3, s. 1;
and the same principles have been distinctly recognized by the
provisions of our Act of Assembly, which, as declaratory of the
common law, give to the surety a right to have the benefit of the
security, which he has satisfied, to enable him to take the place of
the creditor, and proceed against the principal debtor. 1703, eh.
23, s. 7 and 8; Lenox v. Prout, 3 Wheat. 520.

The claim of the creditor can in no way, be suspended, or put
in peril, at the instance of a surety. But if the debt be fully paid
by the surety; for the payment of a part will not give him a right
to an assignment of the security, Ex parte Rushforth, 10 Ves. 420;
Hollingsworth v. Floyd. 2 H. & G. 91, then those equities arise,
which apply as between principal and surety, and between two or
more sureties, as regards the contribution they owe to him who has
paid the whole; or in relief of each, so that the burthen may be
borne equally, or in the proportions warranted by the terms of the
contract. And in such cases, where the parties are before the
Court, after awarding to the creditor full satisfaction as against all
and each of his debtors, it will adjust these equities, without pre-
judice to him, and, by a decree over, direct that the principal shall
be first made to pay, if able, and if not, then that each one of his
sureties .shall be compelled to contribute his due proportion. Cooke