Bailey v. New

¶1By the Court.

¶2delivering the opinion.

¶3Did the Court below err, in refusing the motion for anew trial, in this case? We think so. We think that one of the grounds of the motion, was good.

¶4[1.] First ground. If the surety is in no danger, there is no reason why he should require the creditor to sue the principal; and if there is no reason why he should require the creditor to sue him, that is a circumstance tending, more or less, to show, that an allegation of his that he did require the creditor to sue him, is not true; or, to show, that he has waived the requisition, if he ever made it. Therefore, anything showing that the surety was in no danger, is admissible as evidence on the question whether he did or he did not require the creditor to sue the principal. The surety is in no danger, when he has in his hands, property of his principal, sufficient to pay the debt. Therefore, evidence of that fact, is admissible against him, when he pleads, to a suit brought against him or the debt, that he required the creditor to sue the principal, and the creditor failed to do so, for three months afterwards.

¶5There is nothing then, we think, in the first ground.

¶6Second ground. As to this ground, we prefer merely to say, that we do not deem it good.

¶7Third ground. This was, we think, a good ground.

¶8If the surety gives the creditor notice to sue the principal, and the creditor neglects to sue the principal for three months, the surety is “no longer liable,” so says the statute. Pr. Dig. 471. If after a discharge, under this notice, the surety asks indulgence for the principal, that is no waiver ef his notice. The notice has had its effect. And, in the present case, it was a question on the evidence, whether the' request for indulgence, was not made after the expiration of three months from the notice to sue.

¶9Again, if the surety, after having given the notice, asks indulgence for himself, not for his principal, that is no *217waiver of his notice to sue the principal. And here, it was open to question, whether the indulgence asked for, by Bailey, the surety, was not indulgence for himself, rather than indulgence for his principal.

¶10We think, then, that the Court’s charge, rather than what it was, should have been this, namely:

¶11[2.] That “if the defendant, the surety, asked indulgence, from the plaintiff, after he had given the notice to sue, it was a waiver or revocation of the notice;” provided the time at which he asked the indulgence was before the expiration of the three months; and provided the indulgence rvas; asked, not for himself, but for his principal.

¶12Fifth ground. We doubt whether the evidence authorized the charge constituting this ground. But, as it is rather uncertain what the evidence on the point was, we say no more on that ground.

¶13It is not necessary to decide or notice, the remaining grounds.

¶14Judgment reversed, and new trial granted on the third ground.