By the Court, Sawyer, J.
The note sued on was executed in favor of the plaintiff by Dehameau as surety for Yolpillac, the joint maker. After the maturity of the note, the defendant Corduan, as administrator of Dehameau, deceased, filed his bill against the plaintiff, Dane, setting up the circumstances under which Dehameau executed the note, asking a decree requiring the plaintiff, Dane, to proceed at once against the principal, Yolpillac, arid collect the amount due. It was accordingly decreed in this suit: “ That said defendant make an immediate demand on E. Yolpillac for the payment of the note executed,” etc.; “that on said E. Yolpillac’s refusal, defendant commenced legal proceedings against said Yolpillac for the payment of said note and interest, * * * within ten days from the filing of this decree, or be forever debarred from claiming the same from the estate of said C. Dehameau, plaintiff, * * * on the plaintiff tendering to said defendant a sufficient amount to pay reasonable costs and expenses in the suit against E. Yolpillac for the payment of the note aforesaid.”
The defendant “ deposited with the Clerk and Sheriff a sufficient amount to pay their legal fees in the proposed suit of Dane v. Volpillac.” The defendant, by his attorney, wrote a letter to plaintiff, in which he says: “ Please take notice that [163]*163the Clerk’s and Sheriff’s fees are paid, and sufficient money is in their hands to pay all the costs in the suit of E. Dane v. Volpillac, ordered to be commenced, * * * and you are hereby tendered the services of an attorney to conduct the case.” To which Dane, by his attorney, on the same day, replied: “ When the order made in the case of J. Corduan, Administrator, v. E. Dane, is complied with on your part, I shall in all things comply. In the conduct of any legal business which I may have, I exercise my privilege of selecting my own attorney.” And he further emphatically declined the services of the attorney proffered.
“ Volpillac was in the possession of and exercising rights of ownership over property of the value of from five thousand to seven thousand dollars in a store in the City of Sonora, Tuolumne County, for a period of about two months subsequent to the making of the decree aforesaid, and said property was subject to levy and attachment.”
No further proceedings having been taken by either party under the decree, tins suit was brought to recover the balance due on the note. The foregoing facts, among others, were set up in the answer, and having been established by evidence on the trial, the Court dismissed the suit with costs, from which judgment of dismissal the plaintiff appeals, “on the ground that the decision is contrary to law and the evidence in the case, and that the defendant, not having complied with the terms of his decree, was not entitled to invoke its aid as a bar or estoppel.”
On this state of facts two questions are raised in the argument of counsel. The respondent insists :
First—That the first suit and decree may be regarded as a formal demand made by the surety upon the creditor to proceed at once and collect the debt from the principal; and the creditor, having failed to proceed against the principal upon such request, at a time when he was solvent, the surety, by such failure, has been injured, and is exonerated.
Second—That he has substantially complied with the terms of the decree on his part, while the plaintiff has failed to [164]*164prosecute, as required by the decree, and he is thereby barred from recovering against the surety.
A s to the first question, admitting that a request and failure ■ to prosecute has beén shown, is the security exonerated from liability ? Such a state of facts did not discharge the surety in England. His remedy was to pay the debt himself, and then sue the principal; or, perhaps, he might, by bill in chancery, compel the creditor to proceed against the principal. Chancellor Kent says : “ There is no case in the English law in which the personal application of the surety to the creditor was held to be compulsory on the creditor, at the hazard of discharging the surety.” (2 John. Ch. Rep. 562.)
There was a departure from the English rule on this subject in Paine v. Packard, 13 John. 174, and in that case the surety was held to be discharged. But this case was combated and overruled by Chancellor Kent in King v. Baldwin, 2 John. Ch. Rep. 654. The case was appealed, and in the Court of Errors reversed by the casting vote of the Lieutenant-Governor, who, like many Senators voting on the question, was a layman. This fact detracts very much from the weight of the decision as authority, and the arguments of Chancellor Kent in the Court of Chancery, and of Senator Van Vetchin in the Court of Errors, against the principle announced in the case, appear to us to be conclusive. The Courts of New York have since followed'the case of King v. Baldwin, while they have disapproved of the principle established by it. Mr. Justice Cowen, in commenting on this case in Herrick v. Boest, 4 Hill, 656, says: “What principle such a defense should ever have found to stand upon in any Court it is difficult to see. It introduces a new term into the creditor’s contract. It came into this Court without precedent, was afterward repudiated even by a Court of Chancery, as it always has been both at law and in equity in England, but was restored on a tie in the Court of Errors, turned by the casting vote of a layman. Platt, J., and Yates, J., took that occasion to acknowledge they had erred in Paine v. Packard, as Senator Van Vetchin showed most conclusively that the whole Court had done.” Yet he [165]*165followed, the case, on the ground “that the error had become inveterate.”
The Courts of Pennsylvania have also followed King v. Baldwin, but they assign as a reason for so doing that in Pennsylvania there is no Court of Chancery, and the common law Courts exercise chancery powers to a very limited extent —that for this reason a surety in that State cannot, as in other States, compel the creditor to sue the principal. He is, therefore, without remedy, unless he can protect himself in this mode. In some other States, King v. Baldwin has also been followed. In some, the rights and remedies of sureties are regulated by statute; and in others, the doctrine of King v. Baldwin has been entirely repudiated. (Bull v. Allen, 19 Conn. 106; 2 Am. Lead. Caus. 270, and cases cited; 1 Parsons on Notes and Bills, 236, and notes and cases cited.)
When a party contracts jointly with another, as in this case, as between himself and the creditor, he is a principal debtor— he expressly undertakes to pay the debt. It is his duty, both morally and legally, to pay it; and we are of the opinion that the weight, both of authority and reason, is decidedly in favor of the proposition that the failure of the creditor to sue when requested so to do by the surety, does not operate to discharge the surety from his liability. This was evidently the opinion of the late Supreme Court of this State. (Hartman v. Burlingame, 9 Cal. 561, and Humphrey v. Crow, 5 Cal.
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By the Court, Sawyer, J.
The note sued on was executed in favor of the plaintiff by Dehameau as surety for Yolpillac, the joint maker. After the maturity of the note, the defendant Corduan, as administrator of Dehameau, deceased, filed his bill against the plaintiff, Dane, setting up the circumstances under which Dehameau executed the note, asking a decree requiring the plaintiff, Dane, to proceed at once against the principal, Yolpillac, arid collect the amount due. It was accordingly decreed in this suit: “ That said defendant make an immediate demand on E. Yolpillac for the payment of the note executed,” etc.; “that on said E. Yolpillac’s refusal, defendant commenced legal proceedings against said Yolpillac for the payment of said note and interest, * * * within ten days from the filing of this decree, or be forever debarred from claiming the same from the estate of said C. Dehameau, plaintiff, * * * on the plaintiff tendering to said defendant a sufficient amount to pay reasonable costs and expenses in the suit against E. Yolpillac for the payment of the note aforesaid.”
The defendant “ deposited with the Clerk and Sheriff a sufficient amount to pay their legal fees in the proposed suit of Dane v. Volpillac.” The defendant, by his attorney, wrote a letter to plaintiff, in which he says: “ Please take notice that [163]*163the Clerk’s and Sheriff’s fees are paid, and sufficient money is in their hands to pay all the costs in the suit of E. Dane v. Volpillac, ordered to be commenced, * * * and you are hereby tendered the services of an attorney to conduct the case.” To which Dane, by his attorney, on the same day, replied: “ When the order made in the case of J. Corduan, Administrator, v. E. Dane, is complied with on your part, I shall in all things comply. In the conduct of any legal business which I may have, I exercise my privilege of selecting my own attorney.” And he further emphatically declined the services of the attorney proffered.
“ Volpillac was in the possession of and exercising rights of ownership over property of the value of from five thousand to seven thousand dollars in a store in the City of Sonora, Tuolumne County, for a period of about two months subsequent to the making of the decree aforesaid, and said property was subject to levy and attachment.”
No further proceedings having been taken by either party under the decree, tins suit was brought to recover the balance due on the note. The foregoing facts, among others, were set up in the answer, and having been established by evidence on the trial, the Court dismissed the suit with costs, from which judgment of dismissal the plaintiff appeals, “on the ground that the decision is contrary to law and the evidence in the case, and that the defendant, not having complied with the terms of his decree, was not entitled to invoke its aid as a bar or estoppel.”
On this state of facts two questions are raised in the argument of counsel. The respondent insists :
First—That the first suit and decree may be regarded as a formal demand made by the surety upon the creditor to proceed at once and collect the debt from the principal; and the creditor, having failed to proceed against the principal upon such request, at a time when he was solvent, the surety, by such failure, has been injured, and is exonerated.
Second—That he has substantially complied with the terms of the decree on his part, while the plaintiff has failed to [164]*164prosecute, as required by the decree, and he is thereby barred from recovering against the surety.
A s to the first question, admitting that a request and failure ■ to prosecute has beén shown, is the security exonerated from liability ? Such a state of facts did not discharge the surety in England. His remedy was to pay the debt himself, and then sue the principal; or, perhaps, he might, by bill in chancery, compel the creditor to proceed against the principal. Chancellor Kent says : “ There is no case in the English law in which the personal application of the surety to the creditor was held to be compulsory on the creditor, at the hazard of discharging the surety.” (2 John. Ch. Rep. 562.)
There was a departure from the English rule on this subject in Paine v. Packard, 13 John. 174, and in that case the surety was held to be discharged. But this case was combated and overruled by Chancellor Kent in King v. Baldwin, 2 John. Ch. Rep. 654. The case was appealed, and in the Court of Errors reversed by the casting vote of the Lieutenant-Governor, who, like many Senators voting on the question, was a layman. This fact detracts very much from the weight of the decision as authority, and the arguments of Chancellor Kent in the Court of Chancery, and of Senator Van Vetchin in the Court of Errors, against the principle announced in the case, appear to us to be conclusive. The Courts of New York have since followed'the case of King v. Baldwin, while they have disapproved of the principle established by it. Mr. Justice Cowen, in commenting on this case in Herrick v. Boest, 4 Hill, 656, says: “What principle such a defense should ever have found to stand upon in any Court it is difficult to see. It introduces a new term into the creditor’s contract. It came into this Court without precedent, was afterward repudiated even by a Court of Chancery, as it always has been both at law and in equity in England, but was restored on a tie in the Court of Errors, turned by the casting vote of a layman. Platt, J., and Yates, J., took that occasion to acknowledge they had erred in Paine v. Packard, as Senator Van Vetchin showed most conclusively that the whole Court had done.” Yet he [165]*165followed, the case, on the ground “that the error had become inveterate.”
The Courts of Pennsylvania have also followed King v. Baldwin, but they assign as a reason for so doing that in Pennsylvania there is no Court of Chancery, and the common law Courts exercise chancery powers to a very limited extent —that for this reason a surety in that State cannot, as in other States, compel the creditor to sue the principal. He is, therefore, without remedy, unless he can protect himself in this mode. In some other States, King v. Baldwin has also been followed. In some, the rights and remedies of sureties are regulated by statute; and in others, the doctrine of King v. Baldwin has been entirely repudiated. (Bull v. Allen, 19 Conn. 106; 2 Am. Lead. Caus. 270, and cases cited; 1 Parsons on Notes and Bills, 236, and notes and cases cited.)
When a party contracts jointly with another, as in this case, as between himself and the creditor, he is a principal debtor— he expressly undertakes to pay the debt. It is his duty, both morally and legally, to pay it; and we are of the opinion that the weight, both of authority and reason, is decidedly in favor of the proposition that the failure of the creditor to sue when requested so to do by the surety, does not operate to discharge the surety from his liability. This was evidently the opinion of the late Supreme Court of this State. (Hartman v. Burlingame, 9 Cal. 561, and Humphrey v. Crow, 5 Cal. 175.) And there is less necessity for following a contrary doctrine in this State, for the reason that the Practice Act furnishes to the surety a more ample remedy than he formerly had, even in Courts of equity, for he can himself bring a suit against the creditor and principal debtor, and compel the latter to pay the debt. (Practice Act, 527.) The action contemplated by this section was, doubtless, intended as a substitute for the proceeding in chancery to compel the creditor to sue, and it may be doubted whether any other action by the surety against the creditor is allowed in our State.
As to the second point, admitting the decree to be sufficiently specific in its provisions to be valid, of which there [166]*166is much room for doubt, we do not think the defendant complied with its terms. To render the decree available as a bar, it was necessary for him to perform specifically the conditions imposed by it; and the condition was, that he should tender “ to said defendant (plaintiff in this suit) a sufficient amount to pay reasonable costs and expenses in the suit against E. Volpillac,” etc. He is not at liberty to do something else, which he may deem to be equivalent to making a tender to the defendant in the decree; he must do the specific thing required by it. Paying to the Clerk and Sheriff a sufficient amount to pay their fees in the contemplated suit, is not the same thing as tendering it to Dane. [Dubois v. Dubois, 6 Cow. 494.) Or, if so, it is certainly not the same thing as tendering to Dane “ a sufficient amount to pay reasonable costs and expenses in the suit,” etc. There are other costs than Clerk’s and Sheriff’s fees, (even admitting payment to them of tlieir fees to be a good tender under the decree, which we are not prepared to do,) such as witness and jury or referee fees, to say nothing of the expense of procuring an attorney; and the tender of the services of an attorney is not equivalent to furnishing money to pay the expense of procuring one. The plaintiff was entitled to select his own attorney. (Peck v. Acker, 20 Wend. 605.) If the defendant desired to select his own attorney, or superintend the disbursements of the costs and expenses of the suit, he could have done so by bringing-his suit under section 527 of the Practice Act, and making the principal as well as the creditor a party. In that mode, also, he could just as well have accomplished his whole object by a single action, instead of subjecting himself and the creditor to the trouble and expense of litigating a second suit. But he has chosen to pursue a different course, and he must iely for his discharge strictly upon the terms of his decree. Having failed to comply with those terms, the decree can afford him no protection.
Under the views we have taken of the case, the Court erred in dismissing the complaint and rendering judgment for the defendant.
[167]*167There are other matters set up in the answer which may, perhaps, constitute a good defense ; but they do not appear, from the transcript, to have been proved. But no point is made on these matters, and we do not pass upon them.
Judgment reversed and the cause remanded for further proceedings.