f

202 WINDER v. DIFFENDERFFER.

fits which came to his hands, he alone is responsible. If this court
were to make good to Catharine's representatives any amount of
the rents and profits which had been misapplied by Vincent to their
prejudice, out of the proportion of the funds now about to be distri-
buted, to which the plaintiff Araminta is entitled, it would be, in
effect, to treat her as the principal debtor, for whose benefit, among
others, Vincent was not merely a trustee, subject only to the order
of this court; but, who was, in fact, her own proper agent; or it
would be to consider Araminta as the surety of the trustee Vincent.
But there is nothing in the case to warrant the placing of C
in any such condition of responsibility; and therefore the represen-
tatives of the late Catharine cannot sustain themselves on the stand
they have taken by any principles derivable from the case of a
principal debtor and surety.

But the representatives of the late Catherine, insist on having
the securities, or these assets, now about to be distributed, so
marshalled as to reimburse them to the amount of their share of the
rents and profits which had been misapplied by the former trustee,
Vincent.

The marshalling of securities is only made where the debt is
so secured as to give to the creditor the means of obtaining pay-
ment out of two funds, and others can reach only one of them. In
such case the court will compel the creditor who holds the more
comprehensive security to obtain payment, as far as practicable,
out of the fund which the other creditors cannot reach; so as to
leave the other fund to be distributed among the creditors holding
more limited securities, (f) But there is no sort of analogy
between the case of creditors, whose securities may be thus mar-
shalled, for the benefit of all, and without injury to any, and the
case now under consideration. The plaintiff Araminta, and the
representatives of the late Catherine, stand precisely in the same
situation; not as creditors seeking payment, by way of preference,
or otherwise, from the assets of a debtor; but claiming the distri-
bution of a fund to which they are alike entitled.

Marshalling of assets respects two different funds, and two diffe-
rent sets of parties, where one set can resort to either fund, and the
other only to one. As where there are real and personal assets
and judgment and simple contract creditors; the real assets will be
applied to the satisfaction of the judgment creditors; so as to leave

(/) 1 Mad. Chan, 250.