#### Henry Bizzell *v.*William Smith.

If a creditor be bound to sue the principal at the request of a surety, his refusal does not discharge the surety, if no injury results to the latter — as where the principal debtor was insolvent when the liability of the surety was incurred.

This bill was filed in Wayne, and alleged that the plaintiff in 1820, became surety for one *John McKinnie,*in a bond to one *Fellow ;*that the bond was assigned by *Fellow*to one *William Bizxell*— that when the bond was executed, *McKinnie*was solvent; but that the plaintiff being anxious to be relieved from his responsibility, applied to the holder either to commence suit on the bond, or procure *McKinnie*to renew it with another surety— that *Bi&sell*promised to do so, and in case of failure, that he never would -call upon the plaintiff to pay it— that *William BixaeU*died, and administration on his estate had been committed to the defendant 5 that the bond was found among the papers of the intestate, and *McKinnie*having become insolvent, and removed out of the state, suit was commenced against the plaintiff alone. The prayer was for an injunction.

Á statement of the answer and proofs is unnecessary.

*W. C.*Stanly, for the plaintiff.

Where the surety calls upon the obligee to enforce the collection of his debt, and the obligee refuses, it is a discharge of the surety— *{Fain*v. *Packard*13 *Johns.*174*King? Baldwin 17*do. a84 *Fulton*v. *Matthews 15 do,*43S).

*28thif cre^toif'ts not bound to sue debtwattSore-quest of the surety

*J, 11. Bryan, contra,*

was stopped by the court.

RuyfiN. Judge.

The principle assumed in the bill is, that the delay or refusal of the creditor to sue the principal debtor, after request of the surety, discharges the latter. This position is inore than questioned by the court. The very contract of the surety is, that the prin-ciphl will pay ; and dispenses with active diligence on the part of the creditor, • who ought not to be bound to incur the expense and trouble of litig’ation. for the relief of the surety : since the latter, by performing the contract on his part, namely, by payment, may immediately have, in Ids own name, and under his own control, all the remedies which the law gave to the creditor himself. The question is nothing more than this : which of the two shall bear the burden of bringing and conducting a suit ? And surely he, for whose benefit, and at whose instance it is instituted, cannot complain that the task is imposed on him — especially as he has undertaken with the creditor, to answer for the acts of the debtor.

But the court will leave that point undecided, since the plaintiff has not brought his case within his own principle, and the authorities from which it is drawn. For clearly, if the creditor be bound to bring an action on the request of the surety, the rights of the creditor are not impaired, unless the party has received prejudice. There must be *laches*of the creditor, and consequent loss to the surety. And this loss ouglitto be clearly proved by the plaintiff. So far from this being done here, the proof isi the cause is distinct, that *McKinnic*was insolvent at the time the bond was given — much more when the intestate was requested to. bring suit.

Pjsji Curiam. — lina, dismissed-.