111 N.C. 69 | N.C. | 1892
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,
The foregoing facts appear in the answer of the defendant surety Braswell; and the plaintiff, having demurred to the same, the only 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. (section 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, 5 Ired., Eq., 91; Keeler v. Linker, 82 N. C., 466; Baylies on Sureties, 219.
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
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, w'here they were pending by way of appeal. The case of Jarrett v. Self, 90 N. C., 478, cited by counsel, relates to the “ splitting up ” of the items of a single contract for the purpose of conferring
It is further insisted that, conceding the conduct of the plantiff operated as a release of the surety, the defense, being of an equitab'e 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 itoutof tRe 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 he executed the same as a surety. Capell v. Long, 84 N. C., 17; Goodman v. Litaker, Ibid, 8. This being so, the case of Cooper v. Wilcox, is decisive of the jurisdiction of the Justice as to the defense in this action. Indeed, it has been expressly decided that “whenever such a Court has jurisdiction of the principal matter of an action, as on a bond for instance, it must necessarily have jurisdiction of every incidental question necessary to its proper determination. Garrett v. Shaw, 3 Ired., 395. And though it cannot affirmatively administer an equity, it may so far recognize it as to admit it to be set up as a defense. McAdoo v. Callum, 86 N. C., 419.”
In Howerton v. Sprague, 64 N C., 451, cited by plaintiff, the question now before us was not directly presented, and the remarks of the Court as to jurisdiction cannot prevail over the reason as well as the express authority of the later decisions. Affirmed.