Pain v. Packard , 13 Johns. 174 ( 1816 )

Per Curiam.

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.^* 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 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.

* Not reported