— This certainly was once a case proper for a subrogation ; two creditors — two funds— both funds accessible to the preferable creditor, and one only accessible to the of her. And liad an application been made at any time during this state of things, I think that there cannot be a doubt, but that the creditor disappointed of his only fund, by the creditor who had the choice of two, might take the rejected fundas his means of satisfaction, in lieu of the one thus taken from him; upon a principle of natural equity, that ho who in the exercise of his own just rights, injures another,is hound to make satisfaction, if he can do it without loss to himself. But the application should have been made during tbe time that the power of the Bank over the fund *149created by the decree, existed, as all that the Plaintiff can ask for is, to be subrogated to rights which they had when the bill was tiled. No principle of equity recognized in this Court was violated by the Bank, in resorting to the fund most convenient in their estimation, for the satisfaction of their debt, and on this point, they were the sole judges. It is sufficient if the object was to secure themselves, and not to injure another. This case is also somewhat weakende from the circumstance that the property was not withdrawn from the operation of the Plaintiff’s execution by means of the sequestration ; but was, from its nature, never subject to it, being debts and dioses in action. There was nothing therefore personal in the equity which the Plaintiff had ; it consisted simply in this, to have from the Bank an assignment of this sequestered fund, upon its being ascertained that the Bank did not want it. But fhe Bank lost all its power over the fund when their debt was satisfied, and Helme was then remitted to his original rights, and most certainly,I think, had full power to transfer it t,o any one, bona jide. This it seems he has done to the Defendants Washington and Thompson. - If it is argued that the Bank could not know whether they would want the fund, until it was ascertained whether the, other property of Helme would pay their debt, and therefore such application to them would he premature, it is answered that they might be required to make a provisional assignment. As to the equity against the Defendants Washington & Thompson, the Plaintiff has nono; they are purchasers or incum-brances for value, and in that respect equal at least in equity to a creditor, and have by the transfer acquired a specific equity to hold the proper:}'. As to the ground of subrogation an the score of the Plaintiff’s having paid the debt to the. Bank as the surety of Helme, he can, on that ground, only obtain the securities and facilities which the Bank had, in securing and collecting the debt thus paid by the surdv, and not those which the Rank *150jia(] against the debtor or any other person, or fund for securing and paying another debt.
— I am at a loss to perceive the equity that entitles the PiaintifF to a priority in interest, over Washington and Thompson. His intestate was surety for Robert H. Helme, for a debt upon which there was a judgment and execution against him, but there was no lien created thereby on the fund in question, neither had the creditor a lien on that fund. If they had, and could thereby have had their debts discharged, but had elected to proceed against Hetme’s property, which only was liable for the Plaintiff’s debt, and which would have been applied to the Plaintiff’s debt, had not the execution of the Bank been the oldest,'! think in that case the Plaintiff might claim to stand in the place of the Bank, as to that fund. But it does not appear that the Bank creditors had any option. Neither they, nor the Plaintiff’s intestate had any lien upon it. And if Washingon and Thompson are bona fide creditors of Helme, and have got a conveyance of it in discharge of their debt, I see no reason why it should be wrested from them. For aught that appears, their claim is as well founded as that of the Plaintiff.
— Let the demurrer be sustained and the bill dismissed.