#### *Wright’s Adm’r v. Stockton.

March, 1834,

Richmond.

(Absent Bbockenbrough, J.)

Principal and Surety — Discharge oí Some Sureties by Act of Obligor — Effect on Others.* — Debt on bond by C. S. against W.’s administrator ; defendant takes oyer of the bond, which was a bond executed by H. and four others, of whom W. was one, and then pleads in bar, that W. and three of the other obligors were sureties for II. the first obligor, and that those three other sureties required plaintiff to bring suit on the bond promptly, according to statute, 1 Rev. Code, ch. 116, § 6, 7, 8, but plaintiff did not bring suit, as required, within a reasonable time, and when she did bring suit, those three other sureties pleaded plaintiff’s failure to bring suit promptly, in bar of her actions against them, and on that plea, judgment was given for those three sureties : upon general demurrer to this plea, Held, the matter pleaded is a bar to plaintiff’s action against W. ’s administrator.

Same — Same—Same.—Wherever some of several sureties are discharged by any act or omission of the obligee, the other sureties are also discharged.

Debt, in the county court of Campbell, brought by Catharine Stockton against Robert Wright’s administrator, on a bond executed by Harrison, Clark, Alexander, Wilson, and the defendant’s intestate Wright, for 1054 dollars, payable the 18th August 1815. The defendant took oyer of the bond, and then pleaded in bar, that the obligors, Clark, Alexander, Wilson and Wright, were sureties in the bond for the first named obligor Harrison ; and that the first three named sureties, Clark, Alexander and Wilson, on the 24th January 1820, gave a written notice to the obligee, requiring her to institute a suit upon the bond; but she delayed to bring such suit for an unreasonable time, to wit, until the---day of---, before which time Harrison, the principal, had come and remained wholly insolvent; and the plaintiff! having at the last mentioned date instituted a suit on the bond, against Harrison, Clark, Alexander and Wilson, such proceedings were had therein, that it was adjudged, that the defendants Clark, Alexander and Wilson, were by reason of the premises, wholly discharged *from all liability to pay the said sum of money or any part thereof, which judgment yet remained in full force, nowise reversed or appealed from; by reason whereof the defendant’s intestate Wright became and was wholly discharged to pay the plaintiff the said sum of money or any part thereof — concluding with a verification. To this plea the plaintiff put in a general demurrer. The county court held the plea a good bar, and gave *67judgment for the defendant. The circuit court of Campbell, on the application of the plaintiff allowed a supersedeas to the judgment, sustained the demurrer to the plea, and remanded the cause to the county court. And then, the defendant applied to this court for a supersedeas to the judgment of the circuit court, which was allowed.

Johnson, for the plaintiff in error.

The question in this case depends on the meaning and effect of the statute of 1794, for the relief of sureties.* Before that statute, a surety apprehensive of loss from the neglect of the creditor to enforce his rights against the principal debtor, had remedy by bill quia timet in chancery, to avert the danger; and the design of the statute was to provide for sureties, in such case, a cheaper and more expeditious remedy, which at the same time should be co-extensive in its effects, by authorizing them to require the creditor to anticipate the apprehended ^'insolvency of the principal, by a prompt institution of suit on the bond, and by making the failure of the creditor to comply with such requisition, a discharge to the sureties. In the case of several sureties bound in the same bond, each contracts on the faith of the obligation of the others to contribute, in the event of loss. The legislature could not have intended to authorize one of several sureties to require the creditor to commence proceedings, and upon his failure to do so, to discharge that surety only, and thus, either to leave his co-sureties to bear the whole burden of a responsibility contracted ■on the faith of his joint and equal liability, or else to leave the mutual duties contracted by the sureties to each other unimpaired, so that the surety who had been discharged from the direct claim of the creditor, by force of his proceeding under the statute, should still be liable to his co-sureties for contribution. Certainly, the surety who effects a discharge under the statute, is discharged absolutely. The co-sureties, though no parties to the proceeding, must be discharged also ; otherwise, in the case of many sureties, all but one may join in the requisition, without notice of their proceeding to their co-surety, obtain an absolute discharge for themselves in his absence, and leave the whole burden of their joint suretyship on him alone. It is the conduct of the creditor that discharges the sureties who make the requisition; namely, his failure to bring suit for the debt. Now, it is a well settled principie of the common law, that ifone*of several joint obligors be released or discharged, no matter how, the others are discharged; and the proviso in the 8th section of the statute, saves to the creditor his remedy against the principal debtor, but not against him and any surety not joining in the requisition on him to proceed. The judgment of the circuit court must have been founded on a strict literal construction of the 6th section, which provides, that the surety or sureties may make the requisition on the creditor, and upon his failure to comply with the requisition of such surety or sureties, he shall forfeit the right to demand the debt from such surety or sureties; and this was supposed to give a discharge to such sureties only as made the requisition. But the literal construction. Which would require that all the sureties must join in order to the discharge of all, would also require, that all must join in order to discharge any, so that the refusal of one surety to join the requisition, would preclude the others from availing themselves of the relief provided by the statute. The creditor is bound in conscience, as soon as he is warned by any one surety, of the danger affecting all the sureties alike, to commence his proceedings promptly, for the sake of the sureties who have not joined in the warning, as well as the surety who gave it; and it would be inequitable and mischievous to allow him, after full warning of danger to the sureties, to indulge the principal, so long as there is any one surety who has not joined in the requisition, of whose sufficiency he is himself satisfied, and then to throw the whole loss on him.

The attorney general, for the defendant in error.

The statute was intended to enable any surety or sureties, apprehending danger of loss from the indulgence of the creditor to the principal, to hasten his proceedings, by a written requisition. It was designed for the benefit of such surety or sureties as apprehend danger, and are desirous to anticipate and avert it, not for such as apprehend no danger, and are therefore content to remain responsible. Accordingly, its provisions are expressly confined to such sureties as apprehend danger, and therefore make the requisition ; and it makes the failure of the creditor to comply with the requisition *a forfeiture of his right to demand the debt from such surety or sureties; meaning, obviously, such as apprehend danger and join in the requisition. The legislature did not intend, that the requisition of the sureties, and the failure of the creditor to comply with it, should amount to a release of the bond; it imposed a particular forfeiture on the creditor; a for*68feiture of his rights against the sureties who objected to longer indulgence of the principal debtor. The proviso of the 8th section, saving the creditor’s rights against the principal debtor, was inserted ex abundante cautela; and it supposes a case in which all the sureties have joined in the requisition, and in which the creditor, by failing to comply with it, has forfeited his rights against them all. The court in its .construction of the statute, instead of having regard to the technical principle of the common law, whereby a release'of one joint obligor works a release of all, should rather follow the analogy of another common law doctrine, that a covenant by the obligee not to sue one joint obligor, does not preclude him from suing the others; Dean v. Newhall, 8 T. R. 168; Hutton v. Eyre, 6 Taunt. 289; 1 Eng. C. L. R. 385. For the conduct of a creditor receiving a requisition to bring suit, from some of several sureties, and failing to comply with it, amounts to no more than a waiver of his right of action against those who make the requisition. The surety who does not join in the requisition, cannot complain. It is his business to take care of himself; he has no right to rely on others to take care of him; and it is fair to infer ^rom his silence, either that he apprehends no danger, and is content to abide the responsibility, out of regard to the principal for whose sake he first incurred it; or that, if he apprehends danger, he does not wish to precipitate the measures of the creditor. The co-sureties ought not to be allowed to hasten a suit against him as well as themselves, and then give him the benefit of the creditor’s delay, though he desires the delay.

But suppose the matter of this plea a good bar, if well pleaded, the plea is faulty, not in form only but in substance. 1st, It does not shew, that.the sureties who made the requisition *on the creditor to sue, stated in their notice, any reason for apprehending danger of loss. The statute gave them a right to make such requisition, in case they apprehended that their principal was likely to become insolvent, or to migrate from the commonwealth ; and they were bound to state their apprehension of one or the other, in order to entitle them to make such a requisition. The creditor was not bound to comply with their requisition, if they did not even pretend any just cause for making it. 2ndly, The statute makes the forfeiture of the creditor’s right to sue the sureties, depend on his failure to commence his action on the bond, within a reasonable time after the requisition made by them. What is a reasonable time, is a question of law. Therefore, the plea ought to have stated the time to which the obligee delayed to commence the action on the bond, distinctly and precisely. But in this plea, the date to which the obligee delayed to bring the action, is left in blank.

Johnson, in reply. The statute does not require the sureties to state their reasons for apprehending danger, in their requisition upon the creditor to commence his action. He can be nowise injured by the utmost promptitude; and he is bound to comply with their request, whether he | thinks they have just cause of apprehension or not. As to the objection taken to-the plea on account of the blank left in it, that surely cannot be available upon a general demurrer. The plea avers, that the creditor delayed to bring suit for an unreasonable time, and lays the date under a scilicit.

*

Prlnclpal and Surety — Discharge of Surety at Law— Extension of Time. — In Steptoe v. Harvey, 7 Leigh 535, after laying down as a settled proposition that while a plea that the creditor has made a binding agreement with the principal In a bond to give him time without the privity of the surety, can be set up in a court of equity, such a plea presents no bar to an action at law on the bond against the surety and will be rejected, Tugkeb, P„ says: “The case of *Wright’s Adm'r v.*Stockton, 5 *Leigh*153, affords, however, an exception to this position. In that case there were four sureties. Three of them had given the notice authorized by the act of assembly, requiring the creditor to proceed against the principal, and were discharged by his failure. The fourth pleaded this matter in his own discharge, and this court sustained the plea. I am satisfied that we did not err in that decision. A discharge by statute must of necessity be a legal defence, and is of course proper matter to be pleaded at law. It Is equivalent, when it proceeds from the act of'the creditor, *to*a release, and may therefore well be pleaded ; and the court, considering the act which released three of the sureties as discharging the fourth also, sustained his plea of that discharge. That plea might even have been pleaded, had the action been brought against the principal as well as the surety:.and judgment might have been rendered upon it for the surety without Impeding the judgment against the principal, both upon general principles, 2 Rand. 174.”

See further *foot-note*to Devers v. Ross, 10 Gratt. 252; *foot-note*to Hill v. Bull, Gilm. 149; Tremper v. Hemphill, 8 Leigh 626.

In Waggener v. Dyer, 11 Leigh 391, the principal case and Ward v. Johnson, 6 Munf. 9, were cited to the point that a covenant not to sue one of two sureties does not exonerate the other surety.

Same — Statute Authorizing Requisition on Creditor to Sue Principal — Construction—The mischief that the statute, authorizing requisition by surety on creditor to sue principal, was made to remedy, was, that a creditor having his debt secured, and being careless whether he made it out of the real debtor, or the surety, would often delay to sue till the debtor became insolvent, and the whole burden was thrown on the surety, nor had he any.mode of protection, but by the tedious and expensive proceedings of a bill *guia timet*in equity. These words of Judge Cabe in the principal case were quoted in Davis v. Snead, 33 Gratt. 708.

The object of the statute being protection to the sureties, we must, to that end, give it a liberal construction more especially as it is to take the place, in a measure, of the equitable remedy, and is itself founded on equitable principles. Gillilan v. Ludington, 6 W. Va. 140, quoting from the principal case.

The statute makes it the business of the sureties to keep a watch upon their principal: the creditor is not obliged to move, till he receives notice. This proposition of the principal case was cited in Coles v. Ballard, 78 Va. 149; State v. Lambert, 44 W. Va. 311, 28 S. E. Rep. 932.

See the principal case also cited in Creig v. Hedrick, 5 W. Va. 143.

*

1 Rev. Code, ch. 116, § 6, *7.*8. pp. 461. 2. The 6th section provides, that ‘’when any person or persons fthall hereafter become bound as security or securities, by bond, bill or note, for the payment of money or tobacco, and shall apprehend, that his or their principal or principals? is, or are likely to become insolvent, or to migrate from this commonwealth, without previously discharging any such bond, bill or note, so that it will be impossible or extremely difficult for such security or securities, after being compelled to pay the amount of the tobacco or money which may be due by such bond, bill or note, to recover the same back from such principal or principals, it shall and maybe lawful for such security or securities, in even' such case, provided an action shall have accrued on such bond, bill or note, to require, by notice m writing, of his or their creditor or creditors forthwith to put the bond, bill or note, by which he or they may be bound as security -or securities as aforesaid, in suit. And, unless the creditor or creditors so required to put such bond, bill or note in suit, shall in a reasonable time commence an action on such bond, bill or note, and proceed with due diligence in the ordinary course of law to recover a judgment for. and by execution to make the amount of tobacco or money due by such bond, bill or note, the creditor or creditors, so failing to comply with the requisition of such security or securities, shall thereby forfeit the right which he or they would otherwise have to demand and receive of such security or securities, the amount of the money or tobacco which may be due by such bond, bill or note.*5 The 8th section adds a proviso, ■‘that the rights and remedies of any creditor or creditors, against any principal debtor or debtors, shall be in nowise affected thereby : any thing to the contrary, or seeming to the contrary notwithstanding-.” — Note in Original Edition.

CARR, J.

The question is, whether the

plea demurred to be a-good bar or not? The question depends on the construction of the statute of 1794 for the relief of sureties, and is one of the first impression. In the construction of statutes, we are told, we must first look to the mischief, and then to the remedy, and so administer the law as to advance the one and suppress the other. The mischief of this statute was made to remedy, was, that a creditor having his'debt secure, and being careless whether he made it out of the real debtor, or the surety, would often delay to sue till the debtor ^became insolvent, and the whole burden was thrown on the

surety, nor had he any mode of protection, but by the tedious and expensive proceeding of a bill quia timet in equity. The remedy which the statute gives instead of this,- is a written requisition to the creditor to sue; and if after receiving this, he chooses to give indulgence, it is at his own risk. The object of the statute being protection to the sureties, we must to that end, give it a liberal construction; more especially, as it is to take the place, in a measure, of the equitable remedy, and is itself founded on equitable principles. In this case, the creditor was required to sue by three of the sureties, and delayed to do so, for an unreasonable time; in consequence of which delay, the three sureties who joined in the requisition, have been discharged by a judgment, from all liability. This is stated in the plea, and admitted by the demurrer. It is contended, that this does not discharge the defendant, because his intestate did not join in the requisition upon the plaintiff to bring suit. If we take the statute literally, it would seem to require, that where there are more sureties than one, “ all shall join in the requisition; for the words are “where any person or persons shall become bound as the security or securities in a bond &c. and shall apprehend that his or their principalis likely to become insolvent &c. it shall be lawful for such security or securities to give notice &c. ” Yet this construction would in a great measure defeat the remedy, as it would put it in the power of one where there were many sure-, ties, to prevent the notice, by refusing to-join. Indeed, such a construction was not contended for. If we look at the object and reason of the law, it would seem, that a notice to sue by a part of the sureties, would be as effectual, as one given by them all. The purpose is to inform the creditor, that there is danger to the sureties in his further indulgence, and that if he gives it, he must do so at his own hazard. The statute authorizes the sureties to give the notice, when they apprehend, either that the principal is likely to become insolvent, or to migrate from the state: now, suppose the sureties to live at a distance, *69and that one of them chances to discover that the debtor is on *the eve of leaving the state, and gives the creditor such notice as would enable him, by a prompt movement, to arrest him and get bail; but he takes no step, and the debtor migrates: can it be imagined, that he would be afterwards suffered to recover the debt of those sureties who gave him no notice? Yet the words of the law are the same in both cases, and so is the reason. Again, we know that there is a prin-cijffe of the common law attaching to all joint obligations, by which a discharge of one obligor is a discharge of all. If it be said, that this principle contemplates some act done by the obligee, I admit it, but I hold that in this case there was such an act. The statute makes it the business of the sureties to keep a watch upon their principal: the creditor is not obliged to move, till he receives notice; and if then he promptly puts the bond in suit, gets his judgment, and issues his execution in the usual course, the sureties remain j'ust as liable as if no notice had been given. It is not the notice, then, which discharges the sureties; but (says the statute) unless the creditor so required to sue, shall in a reasonable time commence an action on the bond &c. he shall forfeit the right to recover of the sureties. This, therefore, is the operating principle in the discharge of the sureties; this unreasonable delay, this culpable indulgence given to the debtor after notice to sue, is the act which forfeits the creditor’s right to recover of the sureties; in other words, releases them from the debt. The act of the obligee, then, in the case before us, having released the three sureties who gave him notice, how can it be doubted, that the common law principle applies, and discharges the defendant here? It is very clear, the legislature thought this principle applied, or it would not have provided against its affecting the right of the creditor to recover of the debtor himself. There is another ground, on which I think the defendant discharged. The well established rule of equity, adopted also by courts of law, is, that if the creditor takes any step, or does any act, by which he changes the situation of the surety, without his assent, the surety is released. We know, that every surety paying the debt, has a right to call on his co-sureties *for contribution : this is a vital element in his contract, that at the worst he shall only pay his rateable proportion. Now, by the unreasonable indulgence given by the creditor here to the debtor, after she was required to sue, she has released three of the sureties; they are wholly free: and if in this suit there should be a recovery7 against the defendant, he wilt have to pay the whole debt, without a right to call upon his co-sureties for contribution. This important change in his liability, having been effected by the act of the creditor, he is wholly discharged. Therefore, on every ground, I think the plea presents a good bar, and that the judgment of the circuit court should be reversed, and that of the county court affirmed.

CABELL and BROOKE, J., concurred.

TUCKER, P.

The first question is, whether the defence set up in the plea, suppos:ng it well pleaded, is a good bar?

The real defence is founded on a well established principle of the common law, that if one of several obligors is discharged by the act of the obligee, as by release, breaking off his seal &c. the other obligors are also discharged. The reason is, that they did not engage to incur the obligation singly; each looked to the aid of his coobligors. Therefore, when, the obligee discharges one, he changes the contract, and unless it be a discharge to all, he would thus bind the others by a new contract without their assent. This cannot be allowed ; and, therefore, his discharge of one is a discnarge of all. Again, if a joint suit be brought, a joint judgment must be recovered ; which cannot be if one be discharged ; nor can suit be brought without joining him who has been discharged. And again, if a joint judgment be recovered against all, and one of them pays it, he may compel the others to contribute; but he who has been discharged, cannot be compelled to contribute; and so the obligee, by discharging one, has taken away the right of the others to call on him for contribution. The creditor cannot recover judgment for the supposed proportion of those who *have not been discharged; for, if the debt has in no part been paid, judgment must be rendered for the whole. In short, where parties are thus bound together, the privity between them gives to each, the advantage of any release, or any counter security, which the others may obtain.

The question in this case, then, is whether the discharge of the three sureties, has been effected by the act of the obligee? I think it has. The statute, indeed, says the sureties giving the notice and making the requisition on the obligee to bring suit, shall be discharged, unless the obligee bring suit in a reasonable time. If he does not bring the suit, they are discharged. The omission to bring suit is the act of the obligee, and so the discharge is the consequence of his act. If it were otherwise, the most unjust consequences would follow. Eor, before the statute, any one of several sureties might file a bill quia timet in equity; and, upon the plain construction of the statute, I take it, that any one of several sureties may require the creditor to commence his action. Then, so soon as the bond has become payable, any one surety might absolve himself, by a notice to the creditor requiring him to bring suit, without any notice to his co-obligors; or all but one might join in the notice to the creditor, and in the end throw the whole burden upon him who never dreamed of it. The effect of this would be a scramble among the sureties to get clear, as soon as the bond falls due, lest others should get clear first.

The onlj* seeming difficulty is, that in the view we take of the case, one surety is enabled to hurry the suit of the creditor against all. But I think that no objection. The creditor may take a new bond if he is disposed to give time; if not, let him sue. There is no doubt, any one surety has a right, by bill quia timet, to compel *70the creditor to proceed, even when he apprehends the insolvency, not of the principal only, but of a co-surety.

There is a plain difference between this case and that of a covenant not to sue one of several obligors. Notwithstanding the covenant not to sue, the obligee may sue all, and recover judgment against all; each is bound to pay his ^proportion; and then the covenantee recovers back what he has been compelled to pay. But in the case of a - release or discharge of one, it is a bar to the action against all or any, and may be so pleaded. There can be no recovery against the release; and, therefore, either there can be no recovery against any of the obligors, or the burden must, contrary to the contract, fall upon those who are not released, and they cannot have contribution. So here, the creditor having, by his own conduct, lost all right of,recovery against three of the sureties, and thus debarred the fourth of his remedy- over against them, the fourth is also discharged. For, by force of this statute, the omission of the obligee to sue upon the requisition of the three sureties, was equivalent to a release of those sureties.

As to the- particular objections to the plea, it is sufficient to say, that I hold it well enough pleaded, upon general demurrer to it.

Judgment of the circuit court reversed, and that of the county court affirmed.