532 WATKINS v. WORTHINGTON.

tribunal by whom the subject has been considered; (w) and yet,
according to these principles, now under examination, in direct
opposition to a rule of equity thus universally sanctioned, it is
assumed, even ex officio, as a fact, that the creditor has been
negligent; and that such his mere passive laches, is a sufficient
ground for refusing to allow him to obtain satisfaction from the
deeellld's estate, unless he can prove, that the deceased was the
principal debtor, or that the other obligors are insolvent.

Perhaps it may be supposed, that these principles of the court
may derive some countenance from the equity upon which securi-
ties, or assets are marshalled; as where a creditor, has his debt se-
cured by a lien or mortgage upon two funds, and another has an
interest in only one of the funds, he may compel the one whose
debt is secured by both, to resort to the other, so far as it may be
necessary, to satisfy both claims, (x) And where there are two
different sets of parties, and one set may resort to both funds, and
the other only to one, the party who may have recourse to both,
may be compelled to resort to the one fund, which cannot be
reached by the other, so as to leave enough for both, (y)

This equity is, however, never administered ex officio, nor at the
suit of the debtor, but only at the instance of one creditor against
another; by which the debtor may nevertheless, indirectly derive
benefit. But the securities or assets can never be marshalled to
the prejudice of the creditor; or so as to suspend or put in peril
his claim; or upon any other terms than giving him entire satis-
faction. For in making this arrangement, the court cannot lessen
his security or vary his contract; except so far as waiting a short
time to ascertain the value of the estates, can be considered as
having that effect. The creditor who calls for it, must shew that
the right of his co-creditor will neither be endangered nor inju-
riously delayed; for if he fails to do so, he can have no other
benefit than a subrogation of his right, or the being allowed to
stand in his place.

Hence it is evident, that these principles of the court, can
derive no support from the doctrine of marshalling securities or
assets.

(w) Heath v. Percival, 1 P. Will. 682; Wright v. Simpson, 6 Ves. 734; Samuell
v. Howarth, 3 Meriv, 272; The Trent Navigation Company v. Barley, 10 East. 34;
Deming v. Norton, Kirby Rep. 397; King v. Baldwin, 17 John. 884; The Common-
wealth v. Woibert, 6 Binn. 203; Buchanan v. Bordley, 4 H. & McH. 41; Croughton
v. Duval, 3 Call. 70; Hampton v. Levy, 1 McCord, 107; Galphin v. McKinney, 1
McCord, 297.—(x) 1 Mad. Chan. 250.--(y) 1 Mad. Chan. 615.