15 S.E. 891 | N.C. | 1892
The plaintiff appealed. The case is stated in the opinion. The defendant Howerton was the tenant of the plaintiff, and executed to him a bond for the payment of rent, with the defendant Braswell as surety. The plaintiff, in November, 1888, by virtue of his lien as landlord, sued for the possession of two bales of cotton grown on the leased premises, and the same having (70) been seized under claim and delivery proceedings, were, upon the execution of the usual undertaking, surrendered to Alexander Greene, a defendant in said suit, who claimed the same under an agricultural lien executed to him by the tenant. The sureties to the undertaking, as well as the said Greene, were perfectly solvent; but the plaintiff, instead of prosecuting his action, submitted to a nonsuit at the Spring Term, 1891, of the Superior Court of Nash County, and now brings this action before a justice of the peace on the bond above mentioned.
The foregoing facts appear in the answer of the defendant surety Braswell; and the plaintiff, having demurred to the same, the only *49 questions presented are whether the said facts constitute a defense by way of discharging the surety, and whether such a defense can be entertained in the court of a justice of the peace.
Except when required by written notice under The Code, (sec. 2097), it is not the legal duty of the principal to institute a suit against the debtor, or to pursue such a suit with diligence and to call to his aid all of the remedies provided by the law. If he has brought suit, he is not compelled to prosecute the same to judgment; or if he has recovered judgment, he may fail or refuse to sue out execution; and, indeed, if execution has been issued, he may cause it to be returned without a levy. All this may be done, although judgment, execution and levy would have resulted in the collection of the debt against the principal debtor, and still the surety will not be discharged. Pipkin v. Bond,
The principle of the foregoing conclusions is that the duty of performing the contract, or seeing that it is performed, is on the surety, and that he cannot require the creditor to assume any part of a burden which he has made his own. But while the creditor need not take active measures to enforce the payment of the debt, and (71) may therefore discontinue those which he has instituted, he has no right to relinquish any hold that has actually been acquired and which might have been made effectual as a means of payment. It has accordingly been held that "if the creditor takes the goods of the principal debtor in execution, and afterwards withdraws that execution, he discharges his surety pro tanto. Mayhew v. Crickett, 2 Swann, 191. So, in Law v. EastIndia Co., 4 Ves., 829, it was, says Judge Gaston (in Cooper v. Wilcox,
We see nothing in the case which justified the taking of the nonsuit. It is true that separate actions were brought for each bale of cotton before different justices. These were afterwards consolidated in the Superior Court, where they were pending by way of appeal. The case of Jarrett v. Self,
It is further insisted that, conceding the conduct of the plaintiff operated as a release of the surety, the defense, being of an equitable nature, cannot be set up in the court of a justice of the peace.
In Cooper v. Wilcox, supra, in speaking of such a defense, the Court said: "The principle is spoken of as one of equity, but it prevails in all courts where the relation of principal and surety can be recognized. . . . But the form of the security frequently puts it out of the power of any but a court of equity to apply the principle"; as in the case of a bond where all the obligors appear to be principals. There can be no question but that under our present system a party to a bond may show, in a justice's court, that the executed the same as a surety. Capell v. Long,
In Howerton v. Sprague,
AFFIRMED.
Cited: Johnson v. Williams,