Davis v. Huggins

Richardson, C. J.

delivered the opinion of the court.

It is to be considered as settled in this state, that a mere delay to call upon the principal does not, in any case,discharge a surety. 2 N. H. Rep. 448 , Townsend vs. Riddle.—1 G allison 32, Hunt vs. U. S. —Kirby 193, Barnard vs. Norton.—10 East 34.—15 John. 433.

But it has been supposed, that if a creditor contract with his debtor.to give further day of payment, without the assent of the surety, the latter is discharged. Kirby 397, Deming vs. Norton. —1 B. & P. 419, Peel vs. Tatlock.—3 Binney 520. —Ho lt’s N. P. Rep. 84, Orme vs. Young —10 Johnson 587.

So it has been supposed, that a surety might be discharged by very gross negligence of the creditor, in certain cases, 7 Johnson 332 .

And some have held, that if a creditor, after being requested by a surety to collect the debt of the principal, neglects so to do until the principal becomes insolvent, the surety is discharged. 17 Johns. 384 , King vs. Baldwin. —13 Johns. 174, Pain vs. Packard.

*232 But this principle is believed to have been adopted only in the state of New-York, and stands opposed there by tbe opinions of men, whose legal talents and sound reasonings more than counterbalance the weight of authority, which the decisions, that sanction the principle, carry with them. 2 Johns. Ch. R. 554.—17 John. 384.

And we are of opinion, that a surety is not discharged by a mere delay of the creditor to call upon the principal, when requested so to do by the surety. It seems to us Unnecessary to establish such a principle, because the surety may in any case, if he feel any anxiety,' pay the debt and call upon the principal byasuitin his own name. This, we think, is a sufficient protection for the surety ; and we are of opinion, that there must be judgment in this case, that the plea is insufficient.

Judgment for the plaintiff.