Engracio Palanca, while  judicial administrator of the estate  of Margarita Jose, gave bond, by order of the court before which the proceedings thereon were had,  to  guarantee his administration, which  bond was  executed by Engracio Palanca himself, Luis  S. de Vizmanos Ong-Quico, Alejandra Palanca, and Juan Fernandez Lim Quin Chuang, jointly and severally,  in favor of the Government of the United States in the  Philippine Islands,  for the sum  of P60,000, Philippine currency.

On the same date the said Engracio Palanca  and five others executed in  favor of Luis  S. de  Vizmanos the following bond: Yap Chuangco, for P20,000; Yap Chutco, for P5,000; Palanca Yap Poco,  for  P5,000; Palanca Tanguinlay, for P5,000; and Lim Pongco, for P5,000.  All of them signed the bond except the first named, Yap Chuangco, who did not personally  execute  the bond; this was done for him by his attorney, Yap Chengtua.

In the said instrument the following appears:

"*  *   * and, it being possible that the case occur that Mr. Vizmanos shall have  to pay  the  said bond or a part thereof, as such surety, whose responsibility or solvency in such capacity  has been accepted by  the court up to the amount of forty thousand pesos,  Philippine currency, for the purpose of guaranteeing  to the same the reimbursement of the sum or sums which by reason  of the said bond he might have to pay, the executors of this instrument have agreed that Messrs. Yap Chuangco, Yap Chutco, Carlos Palanca Tanguinlay, Serafin Palanca Yap  Poco and Lim Biampung, known as  Lim Pongco, shall be the sureties of Don Engracio Palanca in favor of Mr. Luis S. Vizmanos Ong-Quico, binding themselves jointly as such to reimburse or to pay to the said Mr. Vizmanos, his  heirs and successors in interest, whatever sums the said Vizmanos may have to pay or shall have paid by reason of the judicial bond herein mentioned, subscribed by him in favor of Mr. Palanca, up to the amount of forty thousand pesos, Philippine currency, in the proportion of not exceeding  P20,000  by Yap Chuangco and P5,000 by each  one of  the other four herein above mentioned."

On  March 9, 1908, the  court which tried  the case concerning  the estate ordered Luis Saenz de Vizmanos Ong-Quico, as  surety  in solidum of the ex-administrator  Engracio Palanca, to pay to the estate the sum of P41,690.15, Philippine  currency, also the interest on the said sum at the rate of 8. per cent per annum,  counting from December 27,  1905, with other sums set out in the sentence.   This judgment became final.

On  March 31,  1908, Vizmanos Ong-Quico paid to the administrator of the estate eight thousand pesos (P8,000), Philippine currency, by the conveyance of property belonging to him, he still owing P40,975.92,  with interest on the said amount at 8 per cent  per annum  from the 9th day of March, 1908, the date of the judgment.

On  April  2, 1908, he instituted  suit against the five sureties above named  who, with Engracio Palanca, executed the bond before mentioned in his  favor, praying the Court of First Instance of the city of Manila to sentence them to pay him:  Yap Chuangco, ¥=20,000, and the other four sureties, Yap  Chutco, Carlos Palanca Tanguinlay, Serafin  Palanca  Yap Poco,  and Lim Pongco,  each  P5,000, that is, these four  together P20,000 more,  and jointly the costs  of the action.

The court, in its judgment, acquitted Yap Chuangco from the claim of the P20,000, assessing against the plaintiff the part of the costs pertaining to this defendant, and  ordered each  one of  the  four remaining defendants, Yap  Chutco, Carlos Palanca Tanguinlay, Serafin Palanca Yap Poco, and Lim Biang Pon (alias Lim Pongco), to pay to the plaintiff, Luis Saenz de Vizmanos, the sum of P2,000, with legal interest at 6  per cent per annum on the said respective sums from  March  31, 1908, the date on which the plaintiff paid to the present  administrator of the estate the said sum of P8,000, until its complete payment.  The said four  defendants had also to pay jointly, that is, in equal shares, the costs  pertaining to them.

Both parties appealed from this sentence, each one forwarding to this court his respective bill of exceptions, together with all the evidence taken at the trial, besides the stenographic notes  which were also forwarded by special order of the trial court.

The appeal having been heard before this court, it appears that:

The defendants appealed on account of their having been ordered to pay, each of them, T2,000, instead of only P1,000, which  according to the terms of the contract, each one of them  was bound to pay to the plaintiff.  (Only error alleged.)

The plaintiff appealed because the court refused to render judgment against the  defendants for the maximum sum for which  each one had bound himself in the contract, which he calls a counterbond or subbond, that is, each one of the four to pay P5,000.   (Only error alleged.)

The share of P20,000 which the'plaintiff claimed from Yap Chuangco is not included in the former's appeal, from the payment of which amount the latter  is relieved in the judgment,  for he expressly states in his brief that he conforms to this part of the judgment and that "his appeal solely relates to the other defendants."   (Brief, 4.)

With respect to the other four defendants, the plaintiff and appellant claims that, notwithstanding his having paid only  P8,000 of his  bond, the defendants ought  to  reimburse him  at the rate of P5,000 each, that is, all together to the  amount  of  P20,000.  As  above stated, the  lower court only  sentenced  them to reimburse their proportional share of the P8,000  paid, to wit, P2,000 each, P8,000 all together.   Thus they  would be paying even the proportional share corresponding  to Yap Chuangco,  which is P4,000, whereas the plaintiff  appellant agrees that the share of the bond  concerning Yap Chuangco should be void by reason of its having been executed by an attorney in fact of the latter who  did not possess sufficient power for this purpose.

Hence the only error alleged by the defendants in their brief, inasmuch as,  having deducted the P4,000 which Yap Chuangco  would have to pay,  the other four defendants must  pay only P4,000, that is, Pl,000 each.

"We can not but agree with this claim of the attorneys for the defendants - say those of the plaintiff  - if this court, disregarding the reasons contained in  our brief, should declare  that the plaintiff is only entitled to  recover  the money that he  really and actually has expended, to wit, P8,000, then it appears unquestionable that the defendants and appellants are  only compelled to pay P1,000 each, as their attorneys state in their brief."  (Brief, 2.)

With regard to the sole error alleged  by the  attorneys for the  plaintiff, it  must first be considered that the bond which the four defendants in turn executed in favor of the plaintiff bondsman is not a  subbond; it is not of the same nature as that given by the latter in favor of Engracio Palanca in the probate proceedings in connection with the will of Margarita Jose.  Although one bond is subordinate to another, not for this reason are they  of the same nature. That of Vizmanos for Engracio Palanca  in favor of the estate is judicial and was  approved by the probate judge; that of the defendants for Engracio Palanca in favor of Vizmanos  was  extra judicial  and the probate judge  had nothing to do with it.  The new administrator of the estate had a right of action, and he exercised it against Vizmanos to enforce the payment of the bond given by the latter, but he has none nor can he exercise any whatsoever against the four who gave bond for Engracio Palanca  in favor of Vizmanos.  The only relation that exists between the one bond and the other is merely that of antecedent and  consequent, in so far as that of Vizmanos in  favor of the estate was the cause  of debt of that of the  defendants in favor of Vizmanos.  The  first  one was  strictly judicial,  the second merely contractual between the parties,

When a  surety pays for the party under bond, he has a right of action against such party for the recovery of the amount paid  by him.

"A surety who pays for a debtor shall be indemnified by the latter."   (Art.  1838, Civil Code.)

The surety Vizmanos who fcaid for the debtor  Palanca must be indemnified by Palanca.  And as it was  evident, when Vizmanos  became surety for Palanca, that the latter could not pay him, Palanca obligated himself by the four defendants, or,  better said, the four defendants assumed the obligation that  rested upon Palanca to indemnify Vizmanos for what  the latter might pay for Palanca.  This is in fact the  obligation that is now exercised.  The action of the surety  against the party under bond or the debtor to require the obligation of indemnity, has no other name nor other nature  in  law than that of a subrogation;  it is an unquestionable doctrine.  The  action of subrogation is regulated  in article  1839 of the Civil Code;

"By virtue of such payment the surety is subrogated in all the rights which the creditor had against the debtor."

"But be  it well understood - says  a commentator - that this subrogation can not be interpreted in such absolute terms as to include more than the  surety has  paid, for, though it is true that he puts himself in the place of the creditor and should have the same rights as the latter in consequence of the subrogation, it is no less certain  that there  would be an unjust enrichment to the prejudice  of the debtor,  if the surety who pays for him were  permitted to  claim more than  what he paid.  Moreover, the benefit of subrogation is the means  of utilizing the right of reimbursement,  and he could not collect as such the excess  from the rights and actions of the creditor over and above the advance made by him."   (12 Manresa, Civil Code, 304.)

The contract law says no more than this:

"Being that the case may occur - say those obligated - that the said Vizmanos may have to pay the said bond or a part thereof  *   *  *   for the purpose of guaranteeing the reimbursement of the sum or sums which by reason of the bond he may have to pay, the executors have agreed and stipulated that  *  *  *  they shall be the sureties of Don Engracio Palanca in favor of Sr. Luis S. Vizmanos, binding themselves as such  conjointly to  reimburse or to  pay *   *   *   whatever amounts  the latter might have to  pay or shall have paid by reason of the judicial bond aforementioned.  *   *  *"

Being as it is an action of  subrogation, it is. not exercisable except  in the case of payment.   The  surety  is  subrogated by  the  payment, says the law, in  all the rights that the creditor had against the  debtor.   Being as  it is an action of indemnity it is not conceived how, rationally, the damage  not yet caused can be anticipated. When the purse of the surety has suffered no detriment, to sue the debtor  in  order that he provide funds for the surety in expectancy of the action of the creditor, is  not to ask an indemnity, but to demand a  guaranty to recover the loss when it may occur, and this  guaranty is that already obtained by the surety Vizmanos from Engracio Palanca on the latter's placing beforehand four parties in his stead in order that they may at the proper time insure him of the restitution, the reimbursement of what he shall have paid. To ask  an indemnity of twenty, when the loss to  be indemnified is but eight, can in no  wise  be authorized either by law or by reason.

The Civil Code specifies five cases as exceptions wherein the surety, even before paying,  may  proceed against  the principal debtor, but "in all these  cases the action  of the surety tends to obtain his release  from the security or  a guaranty to defend him against any proceedings of the creditor  and from the danger  of insolvency  of the debtor." (Art. 1843, Civil Code.)   The security or bond given by the four defendants in favor of the plaintiff Vizmanos had no other purpose than,  in case  he should  make payment to the estate of Margarita Jose,  to defend himself against the proceedings of the administrator of the estate and from the danger of insolvency of the debtor Palanca.

Although, in principle, by virtue  of the contract in question, the four defendants are obligated to the plaintiff in the sum of P20,000, that is,  at  the rate of P5,000 each, the action ad  cautelam is, precisely, covered by  such  a contract, and the action of subrogation, the only  one exercisable, is only available in  the quality of a restitution or reimbursement of the payment  effected.  In the present case  the plaintiff, by virtue of the contract ad cautelam, is entitled to an action against  the four  defendants for recovery from each of them up to  the maximum amount of P5,000, but he can not by such  action,  as  surety for the principal debtor,  collect more  than  the sum which he himself was actually compelled to pay.

In virtue of the foregoing,  the judgment appealed from is reversed in so far as it sentences each one of the four defendants, Yap  Chutco, Carlos  Palanca Tanguinlay, Serafin Palanca Yap Poco, and  Lim Biang Pong (alias Lim Pongco), to pay to the plaintiff, Luis Saenz de Vizmanos, the sum of P2,000.  The amount to be paid is hereby fixed at P1,000, to the payment of which, in favor of the aforesaid plaintiff,  each of the four defendants mentioned were sentenced, "with legal interest at the rate of 6 per cent per annum on the said respective  sums, from March 31,  1908, the date on  which  the  plaintiff paid to the present administrator of the said estate the said sum of P8,000, until its complete payment.   The said four defendants shall pay the costs in equal  shares."   The costs of this instance shall be assessed against the plaintiff and appellant Vizmanos.  So ordered.

Torres, Mapa, Johnson, and Moreland,  JJ., concur.