530 WATKINS v. WORTHINGTON.

The insolvency of the principal is, in no instance, necessary to be
shewn; except where a surety alone claims contribution from his
co-surety, and the principal is not a party to the case, (m)

But if the creditor has done any act injurious to the security, or
has omitted to do that which, by the nature of his contract, he was
bound to do, such acts or omissions give to the surety a clear
release from his obligation. It must, however, appear to have
been the act of the creditor himself, and that his conduct had
been directed by his own will, with a knowledge of his rights, and
not that it was the result of mere accident or mistake. For there
are many cases where equity will set up debts extinguished at law
against a surety, as well as against a principal, as where a bond
has been destroyed or cancelled by accident or mistake, or caused
to be delivered up by fraud; because a surety cannot be allowed
to benefit by mere accident or mistake, or to avail himself of the
fraud of any one. (n) But where any act has been done by the
creditor that may injure the surety, or that alters his situation, it
may be turned to his advantage; (o) as where the principal had
left a sufficient fund in the hands of the creditor, and he thought
fit, instead of retaining it, to pay it back to the principal; (p) or
where the creditor made a compromise with the principal debtor,
and accepted a part of the debt in satisfaction of the whole from
him without a clear or express reservation of the creditor's reme-
dies against the surety, and of the surety's right to take the place
of the creditor, (q) or where the creditor, by positive contract,
enlarged the time of payment, even because of the principal debt-
or's being then unable to pay; or where the creditor expressly
stipulated, that he would not sue the principal within a certain
time after the debt had become due, so that the surety could not
come into equity by a bill quia timet, and have the bond put in
suit; (r) or, by paying the debt, have an assignment of the secu-
rity, so as to enable him immediately to proceed against the prin-
cipal, or have the same remedy against the principal as the

Case, Amb. 61; Peter v. Rich, 1 Rep. Cha. 34; Collins v. Griffith, 2 P. Will. 313;
Tynt v. Tynt, 2 P. Will. 542; Bering v. Winchelsea, 1 Cox, 318; S. C. 2 Bos. &
Pul. 270; Wright v. Morley, 11 Ves. 22; Craythorne v Swinburne, 14 Ves. 160;
Mayhew v. Crickett, 2 Swan, 186; Smith v. Tunno, 1 McCord, 443; Lowndes v.
Chisolm, 2 McCord, 455.—(m) Lawson v. Wright, 1 Cox, 276.—(n) Skip v. Huey,
S Atk. 93.—(o) Eyre v. Bartrop, 3 Mad. 221; Rathbone v. Warren, 10 John. 587.
—(p) Law v. The East India Company, 4 Ves. 824,—(q) Exparte Gifford, 6 Ves.
805; Boultbee v. Stubbs, 18 Ves. 20.—(r) Baker v. Shelbury, 1 Cha. Ca. 70; Rene-
laugh v. Hayes, 1 Vern. 190.