Pain v. Packard — 13 Johns. 174

Majority

p. 174

Pain against Packard, impleaded with Munson.

Headnote

If an obligee, or bolder of a note, who is requested, by the surety, to proceed without delay, and collect the money of the principal, who is then solvent, neglects to proceed against the principal, who, afterwards, becomes insol.veot, the surety will be exonerated.

In an action against A. and B, on theft joint note,'payable tó C , on demand, A. plead, éd, that he sighed th*-> note as surety for B and requested C. to proceed immediately to collect *he money of B., who was then solvent ; but G neglected to. proceed against £ , until he had become . insolvent,and had absconded, whereby the money, as against B.? was lost. On demurrer* this was held to-be-a good plea in bar of the plaintiff’s action against. A

THIS was an' action of assumpsit,. on a-promissory, note made by Packard, <$■ Munson, in which Packard alone was arrested, the other defendant being returned not found. . The defendant* Packard, pleaded, e. Non-assumpsit. 2. That he signed the nóte, which: was for 10.0 dollars, payable on demand, as surety for Munson ; that he urged the plaintiff to proceed immediate? ly in collecting the money due on the nóte from Munson, wh<j ■wag then solvent; and that, if the plaintiff Had then proceeded immediately to take measures fo nolle,Ct the money 9^ Mtmspn, he might have obtained payment from him ; but the, plaintiff neglected to proceed against Munson, until he became insolvent, absconded, and went away out of the state,, whereby thé plaintiff was unable to collect the money of Munson. 3, The third plea was like the second, except that the defendant alleged a .promise,, on the part of the plaintiff that he would immediately proceed 'to collect the money of Munson, and a breach of. that prómige, by whieli the. defendant was deceived and defrauded, and prevented from obtaining the money from Munson, &c.

There was a demurrer to the second and third..pleas, and a join,der in demurrer, which wa§ submitted tó the court- without argument,

The facts - set forth in the. plea are admitted by the demurrer. The principles laid down in the case of The People v. Jansen, ( 7 Johns. Rep 336 .,). will warrant and support this plea. We there say, a mere delay-in calling on the principal will not discharge the-surety, The same principle -was fully and explicitly laid down by the court, in the case of Tallmadge v. Brush.^[1] But this is not such a case. . Here is a special request, by the surety, to proceed to collect the money from- the principal; 'and an averment.of a. loss of the money, as against the, principal, in consequence : of such neglect. The. averments and facts stated in the plea are not repugnant,, or contradictory, to the, terms of the note. The suit hete is by the payee against the makers. The fact-of Packard having been security only, is fairly to be presumed to have been known

* Not reported

p. 175

io the plaintiff. He was, in law and equity, therefore, bound to úse due diligence against the principal, in order to exonerate the surety. This he has nót done. There can bé no substantial objections against such 'a plea. It may be said, the surety might have paid the note and prosecuted the principal; but although he might have done so, he was not bound tb do it, . If he had a right to expedite the plaintiff in proceeding against the principal, and chose to rest oh that, hé might do so. Iff the case of the Trent Nav. Co. v. Harley, (10 East, 34.,) the plea was similar to the present, and not demurred to. Thfe defendant must, accordingly, have judgment upon the demurrer.

Judgment for the defendant.