majority">Handy, J.,

delivered the opinion of the court.

This action was brought by the defendant in error against Ramey, Thompson, and Barnett, the makers of a promissory note, the amount of which was sought to be recovered. Thompson and Barnett pleaded, 1st, the general issue; 2d, that they signed the note as sureties for Ramey, and that one of them duly notified the plaintiff to institute suit thereon to the next term thereafter, which was more than thirty days after the service of the notice, said Ramey being then, and continuing to be, a resident of Yazoo county, and that the plaintiff failed to bring the suit as required. To the second plea, the plaintiff replied that the notice was given by Thompson, and on his own behalf, and was confined exclusively to him, and that no notice was given by the co-surety. A demurrer was filed to this replication, and was overruled; but upon the trial on the general issue, a verdict was rendered against Barnett, but in favor of Thompson, and Ramey made default. Judgment wast rendered accordingly, and this writ of error is prosecuted by Ramey and Barnett.

The only error assigned is, the judgment on the demurrer; and the question presented is, whether a notice given by one of two sureties, in his own behalf, in accordance with the statute, Revised Code, 362, Art. 1, will operate to the benefit of both sureties upon the failure of the plaintiff to bring suit as required.

The statute authorizes “ any surety” to give the notice, and *502provides, that if the creditor shall fail to bring suit as required, “ the surety who shall have given such notice, shall be discharged from liability, and the creditor shall be barred of all recovery against him.”

It appears to be plain, from this phraseology, that the notice was intended to be a privilege to the surety who might see fit to give it, and to operate to his sole benefit. The rule established by the statute is, that a surety desiring and requiring suit to be brought, should be discharged upon the failure of the creditor to sue accordingly. This might be the case with one of two co-sureties, while the other might desire that suit should not be brought. The reason as well as the language of the statute applies to the former case, but not to the latter; and there is nothing in it which can be justly construed to compel a creditor to sue a surety, under penalty of losing his debt against him, unless he desires to be sued, and gives notice accordingly.

But it is contended, that the 'discharge of one surety must work a discharge of the other, because the claim for contribution which the latter, in case of payment of the debt by him, had against the former, by virtue of the original obligation, is thereby destroyed. If this be conceded to be true, it does not show that the surety, failing to avail himself of the privilege authorized by the statute, is discharged by the act of his co-surety. For the statute provides howr o,ne surety may be discharged. It authorizes the discharge of one surety in a particular manner, and is silent as to the liability of others; and it is, in respect to the objection under consideration, tantamount to authority given to the creditor to release one of two sureties in a specified mode. It was, then, a part of the law in relation to the rights of sureties; and the contract of surety-ship must be considered as having been entered into with reference to it, and the rights of the parties to it be governed by it; for the statute incorporated into the Revised Code, and which thereby appears to be of subsequent date to this note, is in substance but a re-enactment of the Statute of 1854, ch. 27. Hence, if the effect of the discharge of the surety Thompson, be to leave his co-surety, who is not discharged from the plaintiff’s claim, without remedy for contribution against him, it is a result produced by the statute, allowing one surety to be discharged without affecting the creditor’s *503claim against his co-surety. The contract of the sureties was entered into subject to the rule established by the statute, which governs both their liabilities and their rights; and the statute cannot be held to prejudice the rights of the creditor further than its positive provisions require.

Judgment affirmed.

Citation profile

How this case has been treated — in progress