What is said under this heading might be included in a discussion of defenses that are available to the surety on his contract with the creditor. As additional defenses it may be mentioned, first, the right of a surety to claim the right of set-off available to the principal, in a suit brought against the principal by the creditor. As to the right of the surety to so plead a set-off that exists in favor of his principal, as against the creditor, there is a conflict of opinion, but it is generally held that the defense is available.39 In reason, it seems that at least where the principal and surety are both parties to the suit there could be no valid objection to the surety insisting on the right to so claim the benefits and defense of the principal's set-off. Where, however, the principal was not a party to the suit, it is claimed that he, the principal, stands to suffer a loss for more than the surety was liable for on his, the principal's, right to bring a separate suit against the creditor on the matter claimed and set-off, and that this right would be lost by the surety setting it up as his defense to his liability to the creditor. A further right given by the courts to a surety is the right to compel the creditor to proceed to collect the debt from the surety, provided the proper indemnity bond is given to protect the creditor. This right of the surety is usually claimed by him by filing a bill in chancery, with the object as stated in view.40 Though these are in the minority, some authorities hold that the surety after the debt has matured, by making to the creditor an express request to sue the principal, if the principal is still solvent, may relieve himself from liability, if the creditor does not sue, and the principal subsequently becomes insolvent.41 Sometimes a formula such as the above is prescribed by statute; a compliance with the statutory provision would then release the surety, where the creditor fails to act, and the financial condition of the principal is thereafter altered. The majority of the courts have failed to follow this so-called equitable rule where they have no corresponding statutory regulation, though it has been approved by many states, by legislative enactment, and it may be considered at any rate a reasonable and equitable rule of law, where in force.

38 Sanderson vs. Aston Law Rep.,

8 Exch., 73. 39 Himrod vs. Baugh, 85 I11., 435;

Becker vs. Northway, 44 Minn., 61. 40 Hays vs. Ward, 4 Johns Ch., 123.

It is a further general rule of law,in this connection, that the surety may claim a discharge, if the creditor leads him to believe that the principal's debt is paid, and it is not, and the surety is injured thereby by releasing securities held by him, or by failing to take the proper steps to protect himself, that he might have taken, except for the representation of the creditor.42