4 Vt. 131 | Vt. | 1832
Opinion of the Court delivered by
Thedefendant insists, that his requesting the plaintiff in 1825, to sue Stockwell, the principal debtor, and then informing the plaintiff that he did not wish to stand surety for Stockwell any longer, and the plaintiffs neglecting for three years afterwards to sue Stockwell, till he died insolvent, discharged the defendant from his liability on the note. The surety has certain rights, and privileges, which are secured to him by law. In the case of Hayes vs. Ward, (4 J. C. R. 132,) Kent, Chancellor, says, “ it is now considered a settled rule, that a surety may resort to chancery, if he apprehend danger from the creditor’s delay, and compel the creditor to sue the principal debtor, though probably he must indemnify the creditor against the consequences of risk, delay, and expense.”
If the surety request the creditor to sue the principal debtor, and tender the creditor ample security against risk, delay, and ex-pence in such suit, and the creditor refuse or neglect to sue, I see no good reason, why the surety may not resort to a court of equity to compel a suit for his benefit. But asimple delay of the creditor, ever so long, after being requested to sue, would be no ground for a court of equity to discharge the surety from his liability. J If the surety was desirous, that the suit should be commence!! against the principal debtor, he had it in his power to apply to a court of chancery, in a reasonable time after his request, to compel the creditor to sue the principal debtor. But if the surety put off his application to the court for three years after his request, he was grossly negligent, and_ ought not to com
A court of law will not discharge a surety from his liability, where a court of equity would not do it. The same causes- for the discharge of the surety are equally available in both courts.
It was decided by this Court, that the case Paine vs. Packard, 13 John. Rep. 174, is not law in this State — and that bail was not discharged, because, at his request, the creditor did not pursue the principal debtor, and take his property in execution to save the bail harmless. — (T. Hubbard et al. vs. T. Davis et al. 1 Aik. 296.) Now, if we apply the principles oí law to the facts-stated above, and relied on by the defendant, we cannot- avoid' seeing their insufficiency to discharge his liability, as surety to-the-note in question. Although he requested the plaintifi to sue the principal debtor, he offered the plaintiff no security to save him harmless against the consequences, of risk, delay, and expense. And though the plaintiff neglected to sue the principal debtor, as he had a right to do, the defendant also neglected to apply to a court of equity to compel him to sue. . If the defendant did not chobse to take this course, he might have paid his note to the
The report of the referees shows, that after the note fell due, in the fall of 1823, the plaintiff agreed that he would discharge the defendant from all liability on the note, and would not hold the defendant any longer as surety. — They called evidence of this agreement. The discharge was to be in writing, though it was not then executed. The referees have not found that there was any consideration for this agreement. Yet, if the plaintiff's assurances to the defendant, that he would discharge him, and would not hold him any longer as surety to the note, quieted the defendant, and prevented his applying to a court of equity to compel the plaintiffto sue Stockwell,the principal debtor,and collect the money of him on the note ; or prevented the defendant’s paying the note, so that he could have recourse to Stockwell for the money, till after hisinsolvency, and death ; perhaps these assurances,so confided in, and producing these effects, should discharge the defendant from his liability. But whether the plaintiff’s assurances were confided in, and produced these 'effects, were facts for the referees to find ; and they have not found them. The presumption is, that these facts did not exist. And when the referees considered, that defendant, after the insolvency and death of Stockwell, promised to pay the note to the plaintiff, they might find that the defendant placed no reliance on.'the agreement of the plaintiff to discharge him, and was not affected by it. And as there was no ■consideration for the agreement, it should belaid out of the case.
The case also shows that “the defendant offered to prove by the widow of Stockwell, that Stockwell in his life time paid said note to the plaintiff; but the referees decided that she could not be admitted to testify.” It does not appear from the report of the referees, nor from affidavits, upon what ground the referees made this decision. The presumption is, that their decision was correct, unless the contrary appear.
The judgement of the county court in accepting the report of the referees, and rendering judgement thereon is affirmed with ¡additional costs.