[Present, Chancellors James and Tmnírsok.]

MAY, 1806.

#### Hugh Rutledge, *vs.*William Greenwood, Junior.

A. joined in a bond with two others, for the payment of a debt made up of many items, some of which were for advances of money, made for the U3e of A. then a minor, but on the credit of his elder brother, against whom all the charges are made. This is sufficient to constitute A. a principal in the bond, though his brother had made larger payments on the account, than the advances to A. and though A. had made payments to his brother

General indulgence given by the creditor to the first signer in the bond, will not release the other obligors in the bond, even if they were mere sureties.

There must be a new agreement, varying the terms of the contract, and extending the time of payment, to work the effect of releasing the surety. A demand of the surety to sue the principal, shall not release the surety, if the creditor offers to sue all the obligors, but the surety declines that.

Propositions of the third obligor not replied to, shall not be deemed to be acquiesced in, so as to release him from his obligation, though he makfS a payment which is accepted, as he insists in pursuance of his proposition. .

The third obligor taking a bond of indemnity, and a mortgage, from the first signers in the bond, has no effect on his liability. And his being treated and spoken of as a mere surety in the bond, in another suit and decree, does not conclude the question as to his suretyship, •¡for it is *res inter alios acta-*

THE bill was filed in ibis case to obtain a perpetual injunction against the defendant, to restrain him from suing and recovering on a bond in which the complainant had joined With two others, as surety, on the ground of la-ches in the creditor, in pursuing the demand against the principal, and in giving time for the payment, beyond the periods stipulated in the bond. And also on the ground that the defendant had entered into new stipulations with the complainant, which had released him from the bond debt.

The complainant’s bill states that his brother John. Rutledge, deceased, being indebted in the year 3 772, *390in a .balance of account in 1097/. 15s. sterling, tq Greenwood and Higginson, of London, merchants; he applied to in 1793, by the defendant, W. Greenwood, jun. as their attorney, for the payment of the said that he proposed, as • complainant believes, to take

the said John R’s. bond, with security, payable in five equal annual instalments, with interest at 5 per cent, if the said John would allow interest, and compound interest, on the account from the time mutual dealings ceased, which included a period of 20 years, and upwards *;*that in consequence of such proposition the said John Rutledge requested complainant would become surety together with their brother, the late Edward Rutledge, in the said bond, giving complainant positive assurances that he would pay the instalments as they became due. That complainant at first declined it, but after repeated solicitations of the said John,' and also at the request of tbe said Edward, complainant at length became bound as one of the sureties in the said bond, conditioned for the payment of 29.57/. or thereabouts, in five equal annual instalments. That the said J. R. being in possession of a very large real and personal estate, (a-bundautly more than sufficient as complainant believed to pay all his debts) complainant after signing the *bonds, not*being called upon by defendants for payment of any of the instalments for 3 or 4 years, gave himself no concern about ih.e payment thereof, implicitly relying on the promises of the said John, respecting the payment he was to make. That some time in 1797, the complainant finding that the affairs of the said John were much, embarrassed, in a conversation with the said Edward, asked the said Edward who was thoroughly conversant with the situation of the said John’s affairs, what payments had been made on it, and was informed that none had been made *;*but that complainant need not be uneasy on that account, for the debt was perfectly safe, as he had a mortgage, or mortgages of property abundantly sufficient, not only to pay the debt above mentioned, but many others for which he had mada *391himself responsible : and further; to satisfy complainant, be gave him a bond to indemnify him from this and many *other*debts complainant had become liable for, at the special instance and request of the said Edward, all of which were originally the debts of the said John Rutledge. That after receiving the bond of indemnity from the said Edward, complainant was satisfied and continued so till the month of May or June, 1799, 13 or 14 months after the last instalment had become due, and within which time judgments to a considerable amount had been, obtained against the said J. R. when the said defendant for the first time, and to complainants great surprise, called on complainant to make arrangements for paying the said debt; That complainant told him it was the debt of the said J. 3R. and complainant only surety. That he ought in justice and conscience, to apply to the said John in the first instance, and obtain payment from him. That he only considered himself liable if the said John was unable j but believed that he was fully competent, and that at all events defendant should have pursued legal measures against the said J. R; as each instalment became due. Defendant replied, that he had repeatedly applied to the said John and Edward, for payment, and had uniformly been promised it; and-that he had not sued the bond out of delicacy to them, or words to that effect. And that in a late conversation with the said John, he had told him the defendant, it was the debt of the said Edward and complainant; Complainant then offered to convince him that it was not; for that he had for some years previous thereto paid to and for the said J. R. ¡monies to a considerable amount beyond the sum that had been advanced by the said Greenwood & Higginson for the complainants, that the said John was responsible for *;*but that the said defendant declined looking into the account. Bill further states, that after the application aforesaid by defendant, complainant having conversed with the said. Edward on the subject, the said Edward and complainant agreed that complainant should pay defendant the *392nett amount of his then crop, after deducting plantation *ext**pences; and the said Edward was to pay 1000/. and assumé the balance of the debt, whi-ch proposition was communi* cated to defendant by letter, *and he acquiesced*therein* £ompja;nant nevertheless, frequently verbally requested defendant no longer to postpone putting the bond in suit against the said J. Rutledge : which, however, he would not do, until April, 1800 5 which was at so late a period that he did not obtain a judgment, as the said John died in July following. That complainant paid defendant accord» ing to his engagement, 200/. and the death of the said Ed> ward prevented him from complying with his engagement; That some months after the death of the said Edward, and immediately after that of the said John, complainant received a letter from defendant demanding payment.of the whole debt from him. That complainant told him, in. his opinion, the debt was safe, and would be paid out of the funds of the said j. R. without resorting to said complainant, and pointed them out to defendant; but it would be necessarily attended with delay, and complainant hop* ed that all circumstances considered, and particularly de* fendant’s remissness, in not pursuing legal measures in a reasonable time, to procure payment from the said J. R< notwithstanding he was frequently remonstrated with, and pressed to it by complainant, the defendant would have been fully convinced of the impropriety of insisting on payment from the complainant, and would have relim quished his claim on complainant, and waited until the property of the said J. R. could have been disposed of to the best advantage' for the benefit of his creditors generally, but in the first instance, for those whose names are particularly mentioned in the mortgages, one of which is that of Greenwood & Higginson, to whom defendant is attorney. But although complainant remonstrated with him on the injustice and inequitableness of his claim on complainant, in as much as defendant never took any steps whatsoever to secure or recover payment of the instal-ments on the bond from the said J. R. as they became due, *393but on the contrary suffered him to be sued by numbers of his other creditors, and judgments to be obtained against him, whereby he lost the preference he might and to have gained of payment of the whole of his debt, (as Ihcre were no judgments obtained against the said J. R. till March, 1798, and these only for trilling debts,) when, the last instalment was payable; and especially too as defendants had refused to comply with complainant’s request in recovering and securing payment of the debt, and. given considerably longer time for payment than was stipulated for in the condition of the bond, and that too expressly against the consent of the complainant; and had acknowledged to complainant that he had not till lately looked immediately to him for the payment of the debt. The defendant, nevertheless, persists in taking rigorous measures against complainant, and hath commenced an action against him, and threatens to obtain judgment and execution, and to seize and sell complainant’s property as soon as he can have itinhis power. The bill prays an injunction, which has been granted, and for relief in the premises.

The defendant put in the following answer:

Defendant in his answer admits his application to the late John Rutledge, in the year 1793, for payment of the debt in bill mentioned; but denies he proposed to the said John to take his bond with security, payable as in bill set forth; but that the said John Rutledge proposed .that he and the said Edward Rutledge, and complainant, would join in a bond for the debt, to which defendant agreed. That in pursuance of their agreement, the said John wrote him a letter, desiring him to have the interest calculated, and he would have a bond executed.. That the defendant calculated the interest and sent it to the said John, who sent back to him the bond in bill mentioned. Defendant saith he is ignorant of the conversation and assurances between the parties as in bill stated. He saith that some time in April or May, 1799, he called on complainant, perhaps for the first time, to make arrangements *394for the payment of the *bond;*and that complainant might have told him the debt was the proper debt of the said John,- and complainant only surety, and that defendant ought in justice and conscience to apply to the said j-qJjq jn the first instance, and obtain payment from him, and that at ail events, defendant should have taken legal pleasures against the said John, to recover the money, or secure payment, as the instalments became duet That defendant might have replied that he had repeatedly spoken to the said John and Edward, relative to the payment of the bond, and been uniformly promised *it;*and had not sued it out of delicacy to the family. Defendant denies he had been frequently requested by the said Edward not to sue the bond; for he does not recollect he ever told him he would sue it. Admits he told complainant that in a late conversation with the said John, he told defendant the debt was the real debt of the said Edward and complainant, and that complainant then said he had paid monies to and for the said John, equal to what had been advanced by Greenwood & Higginson for complainant, and offered to shew him an account and vouchers therefor, which defendant declined looking *into;*and submits that such payment was a misapplication of the monies which should have been paid to Greenwood & Higginson ,• and to corroborate his opinion, that the debt was the real debt of complainant, and the said Edward, he refers to the accounts, and quotes extracts of several letters from the said John to him, to that effect, in May, 1799. Defendant then comments on complainant’s letters to him, in June, 1799, and argues thereupon against his acquiescence in the measures therein proposed, although he admits the receipt of the letter. Defendant admits complainant requested him to sue the said John, and remonstrated with him for not doing it, *and his refusal to sue the said John*alone. That complainant afterwards requested him to sue the said John, and that he did so in April, 1800. He also admits the receipt of the 200/. from complainant— says he does not recollect he ever made application to com*395plainant for payment of the bond previous to April or May, 1799. Defendant admits that in August, 1800, he wrote a letter to complainant demanding payment of the debt, and that complainant might have mentioned some estate of the said John, mortgaged for payment of it, but knows nothing of it. Denies he acknowledged he had not until lately looked immediately to complainant for the debt, but admits that he did not until after the deaths of the said John and Edward Rutledge, look particularly to complainant. He does not recollect making any particular application to the said Edward for payment, prior to that made to complainant, but admits that he repeatedly spoke to the said Edward on the subject, when he called upon him on other business. Admits his commencing suit against complainant, and also against Henry Middleton Rutledge, executor of the said Edward, which last suit he has never proceeded in, though not restrained by injunction.*

The cause came to a hearing, and Mr. K. L. Simons argued for the complainant:

He contended that the complainant was not a principal in the bond, but merely a surety, and entitled to all the equity which sureties have the benefit of in this court. — ■

That though the original account against Mr. John Rutledge, on which the bond was given, did contain a few items of money advanced by Greenwood & Higginson, for the benefit of the complainant, blended with other transac* *396tions, yet they were not advanced on the credit of the conn. plainant, nor were they charged to him, but to Mr. John Rutledge, to whom alone the creditor looked, or had a le« gal right to look. In the year 1770, Mr. J. Rutledge had macje jargC payments on account of the advances made by G. & H. more than sufficient to pay the advances made for the use of complainant, as appears by the account. And it appears also by the subsequent transactions, that'Mr. H. Rutledge, (complainant) had paid and settled with bis brother John, before the bond was given, more than sufficient to reimburse him for his liability to G, & H. on account of their advances on the credit of J. R. for the use of complainant.

It is manifest that Mr. John Rutledge did not consider his brothers Edward or Hugh liable for any part of this debt- — for he in May, 1793, (only one month after the date of the bond) gave a mortgage of lands to bis brother Edward to secure the payment by him of the whole of this very debt as well as other debts.

It was therefore clear that there was no privity of contract between G. & H. and the complainant, nor could they have enforced their demand against him at law or in equity. And the complainant many years afterwards joining his brother John Rutledge, in a bond to G. & H. for a large amount, five times as great as the advances made for the use of complainant, could never convert complainant into a principal for any part of the debt, and in no event to a greater amount than the advances made for complainant ; and the creditors G. & H. never looked to the complainant, nor applied to him for payment of the account, nor even for an adjustment thereof, but solely to the said John Rutledge, as is manifest by the answer of the defendant.

It is clear then that the complainant was merely a surety in the bond for the debt, with the liabilities and the equities attached to that character.

Let us enquire what the equity is on this subject. It is that whatever may be the form or solemnity of the obliga-*397lion, a surety shall not be bound beyond the period fixed by his contract, or for losses which do not spring from the subject of his stipulated indemnity, but from the indulgence of the creditor to the principal debtor, or from his lac.hes or supineness.

This is natural equity, and it has been adopted and sanctioned by this court by a variety of well considered adjudications, which will be presently adduced.

That the circumstances of this case bring it within the equity stated, will be apparent from a correct view of them. The bond was given to G. & H. on the 8th of April, 1793. The mortgage by Mr. John Rutledge to Mr. E. Rutledge, to secure the payment of the debt by the said John Rutledge, is dated the 2d May, 1793. The debt to G. & H. was to be paid in five equal annual instal-ments : No payments are made by the principal Mr. J. R. and the creditor brings no suit for the recovery of the debt, though he might have sued, and recovered a judg ■ ment on the penalty of the bond, on the failure of payment of the first instalment. He had frequent communications with the principal, and with Mr. E. R. on the subject of the debt j but he had none with the complainant. He states in his answer that he had repeated promises of payment from them. On these he relies, and grants indulgences, and an extension of credit to the principal, without the knowledge or consent of the complainant. In the mean time the affairs of the principal fall into decay, and he becomes more and more embarrassed. There were no judgments against him until March, 1798, and to no great amount until after the spring of 1799.

At length in April, 1799, the defendant for the first time, applies to the complainant for payment, fourteen months after the last instalment on the bond had fallen due. The complainant then complains of the defendant’s delay, in seeking his remedy against the principal, and urges him to proceed against him, without further loss of time.— But the defendant still refuses and neglects to do so, and brings no suit till the spring of 1800, which was too late to *398be of any use, for Mr. J. Rutledge died in July, 1800, be-* fore judgment could be obtained on this suit, though other-cre<iitors who had been more vigilant, had mean while obtained judgments to a very large/ amount, so as to taj5.'e aWay ail hope of complainant’s being ever indemnified, unless under the shelter of the mortgage given by Mr. J. R. to Mr. E. R.

This surely makes out a case of gross laches on the part of the creditor *;*and indeed of much actual indulgence and extension of credit on the faith of new promises and engagements. But it is still stronger, for the positive requisition of the complainant to sue the principal; is neglected for many months, and indeed until it was too late to .sue and obtain judgment in his life time, to the manifest prejudice of the complainant. This state of things would bring the case within the equity of the decided cases. But there is still *more;*the defendant acquiesced in the proposition of the other surety, and of complainant to accept from them a certain amount, and to discharge them. He •received this proposition, made no objection, and forbore to sue the principal. This changed the situation of the parties, and the defendant could no longer look to the sureties for more than their voluntary offer, which he had acquiesced in. Nor can it be said that this letter was a renovation of the contract. The letter must not be garbled; and if, when read fairly and fully, it should be supposed to amount to a renovation of the contract, it could be for no more than it offered, and the acquiescence worked a discharge as to the balance of the debt.

We come now to the decided cases which establish and illustrate the equitable principle which protects sureties from the laches of creditors, and their undue extension of credit to the principal debtors. *'*

The case of Nesbit vs. Smith, 2 Bro. C. C. 579, the counsel considered as directly applicable to that under consideration. There the defendant extended the payment to three years, and that was decided to be a release to the surety.

*399in the case before the court, the Creditor absolutely refused to proceed against the principal, when required *;*and he substantially extended the credit. His pretence of delicacy was no excuse when required to sue.

So in the case of Rees Vs. Berrington,2 Vesey, jun. 540, the equitable principle is established. And it is distinctly laid down that the surety has a right the very day after the bond becomes due to have it sued. If the application is proved, it is a duty to comply with it. See also the cases of Skip vs. Huey, 3 Atk. 91, and Law vs. The East-India Company, 4 Ves. jun. 824.

These cases have been examined, and the great equitable principle laid down in them has been recognized by this court in the case of Butler vs. The Comptroller General. (Vide ante, p. 226.)

It is absurd to speak of the complainant’s letter as a renovation of his obligation, supposing that to be dissolved by the laches of defendant, for it cannot by any possibility amount to more than an oifer to pay the amount of his then crop, provided he should be discharged.

Mr. Ward and Mr. Gaillaed argued for the defendant.

They insisted that this was not a collateral undertaking by the complainant, nor was he a surety in the bond. The bond does not import that he was a surety, but he stands jointly and severally bound as a principal. The defendant swears in his answer, that complainant was considered a principal, and he is justified in that belief, by the un-contradicted fact, that part of the advances made by Greenwood & Higginson, were for the benefit of complainant, on which the bond was given by all the brothers, for all the advances. Then they were all principals, and Mr. J. Rutledge’s letters speak of his brothers as joint principals with himself. Now he surely knew their relative situation; and it is not pretended that the equitable rule applies to cases where all are principals. Nor does . it appear by satisfactory evidence, that Mr. H. Rutledge has ever discharged the amount of the advances made on *400bis account; certainly not to Greenwood; and doubtful if *to*bis brother John, But if he Had paid the latter, it was a mjSpayment> jt should have been made to Messrs. Greenwood & Higginson.

jt a ruje Df ref¡ne(j equity invented for the protection of.sureties, but never carried further.

The complainant appears to have relied on the bond of indemnity given by Mr. J, Rutledge, to his brother Mr. E. R. to secure the payment of this debt, and not upon the vigilance of the defendant, for he expressed himself satisfied when informed of the bond of indemnity. Complainant had not applied to the defendant to sue Mr. J. Rutledge, in 1/97, but .to his co-obligor, Mr. E. R. who satisfied his mind by stating to him that he had a mortgage to secure the debt.

This mortgage appears to have been given soon after the date of the bond to Greenwood & Higginson, and is strong evidence .that Mr. E. R. then doubted the solvency of his brother J. R.

With respect to the application in the year 1799, by the complainant to the defendant, to sue Mr. John Rutledge, there are very conclusive answers. The defendant considered the complainant a principal in the bond, as he really was, and therefore he was not bound to attend to such, notice. But he states in his answer that he offered to sue all the obligors, which die complainant declined. And defendant was not bound to sue one obligor -and omit others, at their pleasure.

And to this it should be added that the request came too' late to be of any utility. The request was in the year 1799. .Mr. J. Rutledge died in July, 1800, and judgment could not with ordinary diligence have been obtained before his death. Besides which, so many judgments had been obtained before his death, as to leave little hope of procuring payment from his estate.

Reliance has been placed by the counsel for the complainant, on the ground that he and Mr. E. Rutledge had made propositions to the defendant for the payment of *401jiart *of the*debt, which it is argued implied an agreement, to discharge them from the remainder ; and that this proposition was acquiesced in, and varied the contract so as to absolve these obligors from the bond. To this the follow- • *r ^*mg answers are given as satisfactory:

In the first place, the defendant could not have acceded to any proposition injurious to the rights of his principal. He was only an agent, or attorney in fact, and could not release any of the debtors in the bond, without actually receiving all the money.

There was however no such acquiescence as is stated ; the defendant was merely silent. It is therefore merely a very slight implication which could arise that the defendant assented. But the solemn contracts of men are hot to be dissolved bj^such slight and dubious implications", not suing immediately after, does not raise the implica-, tton of acquiescence in the proposition made by the defendant, for he had foreborne to sue for a long time before, merely from delicacy to gentlemen whom he highly respected. Nor did the proposition distinctly state, that upon the partial payment offered by Mr. H. and Mr. E. R, they should be released from all further liability. There must be an implication upon an implication to produce that effect, and this would be too loose for courts of justice in deciding on the rights and obligations of men. ,

Besides the agreement, (if such a proposition so alleged to be acquiesced in, can be called an agreement) depended on a condition precedent, the payment of 1000/. by Mr: E. R. and of the complainant’s crop of that year. But it is admittedthat Mr. E. R. died soon after,. without paying the 1000/. and it never has been paid.

But again, the equity relied upon for the relief of the Complainant is, that the creditor shall not be at liberty to enter into new arrangements with the principal debtor in the bond, and extend the time of payment for his benefit, at the risk of the sureties. This, however, is not the fact of the case under consideration, for it is not pretended that the creditors made any new arrangement with Mr, *402Rutledge, the supposed principal. If any such arrange ments were made, they were with those who call them-* seives the sureties.' And this they must have considered for their benefit, and not to their prejudice. Nor can such a case -within the rule of equity above stated.— Nor was such agreement ever complied with : ño more than *200L*were ever paid by complainant *to*defendant, and nothing by the other obligor Mr. E.- R. Consequently no benefit can be claimed under it.

The decided cases relied upon by the complainant’s counsel,-are not applicable to this case. TnNesbitvs< ■ Smith, the creditor made a new agreement with the principal, by which he extended the credit for three years, so that he could not proceed to sue on the bond. And the cases of Skip & Huey, and Law, vs. The East-India Company, have no circumstances analogous to the present. In Rees & Beerington, the creditors extended the credit by a positive agreement with the principal^ even before the penalty attached.

- In the case of Butter Sc' Hamilton decided in this court, the chancellors recognized the rule of equity; but they did not give relief to the surety, because it was not satisfactorily proved that the surety had required the principa to be sued; and one of the bonds had been sued without effect.

The true principle is, that the surety shall be absolved where the obligee defeats the condition of the bond by his conduct. But that is not the case here; and merely permitting the bond to lay over, is not an extension of credit,

A bare application by a surety to the creditor to sue, does hot of course absolve him, if the creditor neglects to sue. It only gives him the right of coming into this court to compel the creditors to sue, or to release the surety. — * But this was not done by the person insisting that he was merely a surety. He did not come into this court for relief, but relied on a demand to sue, which was made too late to be of any use ; and upon an alleged new agreement made with himself, and not with the principal.

*403The very proposition made by tbe complainant to pay part of the debt, proves that he felt himself really a debt- or for part of the money; and if so, he was principal, and there is an end of the argument on the ground of surety- , - ’ . ship.

Mr. K. L. Simons in reply.

He contended that where the defendant’s answer makes new allegations as to facts not charged in the bill, evidence must be brought in support of the answer; and this is the case with some of the material parts of the defendant’s answer in this case, particularly where he insists that complainant is a principal in the bond.

That substantially the complainant can only be regarded as a surety. Greenwood ScHigginson had no account nor charge against him. Their account was against Mr. John Rutledge, It is true some of thp items of the charges against Mr. J. Rutledge were for advances for the use of the complainant; but they never looked to complainant who was a minor; they looked solely to Mr. J. R. to whom complainant was bound to repay the money, and he has done so. His joining in the bond cannot alter the nature of the transaction.

That the defendant’s not answering the letter of the com.' plainant in 1799, led complainant to rest in perfect security. He considered it an acquiescence.

It was conceded that in the case of Butler vs. Hamilton, the complainant had notjproyed any application to the treasurer to sue the principal, or he would have been released. This is important, for in the case under consideration, there was an application to the creditor to sue the principal, which was neglected : and this lets in the equity contended for, and brings this case within the rule of the decided cases cited.

An agreement was first made between Mr. E. R. and the defendant, that he would take 1000/. from E. R. and the crop of this complainant in satisfaction; and complainant then writes to that effect. No answer was given, buthe was considered as acquiescing, and the defendant’s *404receiving the money afterwards from complainant, is evf* dence that he had acquiesced, and he was, bound by it, The complainant’s availing himself of the bond of indemnity and the mortgage to protect him against this, debt, does not affect his equity as a surety. He had a 'right to protect himself in every way. But these papers prove that neither he or his brothers ever considered hira as a principal in the bond ; and surely Mr. J. Id. knew the fact, and acknowledged it by his acts.

As to the argument of the defendant’s counsel, that no diligence would have been of any avail against Mr. John Rutledge, or would have secured the debt, that is a matter of-uncertainty and of speculation, which the court will not inquire into. In the case of Rees vs. Berrington, S Ye», sey, jun. 542, the Lord Chancellor said I cannot try the. cause by inquiring what mischief it might have done. The indulgence given for that would go into a vast variety of speculation, upon which no sound principle can be built.' It would be the same to inquire what disadvantage had re-? suited from neglecting to sue, when required..

*

 N. B. In April, 1803, complainant filed a bill against H M. Rutledge, executor of Edward Rutledge, for the purpose of obtaining a decree to authorize his selling the property mortgaged to his father by John Rutledge, in order to enable him to satisfy the debts enumerated in the mortgages, of which that due to Greenwood & Higgin-son is one And the court in May, accordingly decreed he should sell the property for that purpose, on the terms in decree mentioned. Some parcels of land, have lately been sold, and persons are authorized to sell the whole, but the present scarcity of money, in a great measure prevents their being sold, or selling for any thing like their real value,

The court took time 'to consider, and Chancellor J ames afterwards delivered the decree of the court.

appf(cation on the part of complainant is for a per», petual injunction against an action at law, brought by the defendant against him on a bond given by John, Edward and Hugh Rutledge, to the defendant, as attorney of William Higginson, survivor of Greenwood and Higgin-son. His principal grounds for obtaining the injunc-'don, are:

1st; That he is only surety, and not principal in the bond.

2d. That the bond was dated the 8th of April, 1793, and payable in five equal annual instalments, and consequently suable when the first instalment became due *;*but ■that defendant never put the bond in suit against the principal, until April, 1800, when he was insolvent, though be had been required to do so by the complainant, abmA *405fourteen months after the last instalment became due. That defendant therefore has been guilty of such great la-ches, as to exonerate complainant from his suretyship.

3d. That defendant has changed the nature of the original contract, by a new agreement made with complainant, and by receiving thereon a part of the debt on the bond.

On the other hand, the defendant has alleged, 1st, that the original debt for which the bond was given, was partly for monies advanced to the complainant for his education and necessaries while a minor in England : that therefore he is a principal and not a surety to the bond* 2d. That he never .changed the nature of the original contract, by entering into a new agreement with complainant, and by receiving thereon a part of the debt on the bond.

In the case of Butler vs. Hamilton, it has been decided by the court, that equity will give relief to a surety, where the obligee has not used due diligence to recover his debt from the principal in the first instance, and has refused or neglected to comply with the surety’s request to use that diligence ; and also where the obligee has extended the credit longer than the parties contracted for against the surety’s consent; but • it likewise appears from that case, that it is incumbent on the surety before he can expect relief, to apply to the obligee and require him to sue the principal. However, before we -go into the inquiry, whether the complainant in this case is entitled to relief, upon the grounds stated in his bill, it will be necessary to examine whether he was really a surety to the bond, for if he was a principal, there is at once an end of the question on the second ground. -The bond is joint and several, and nothing appears on the face of it to shew that complainant was a surety. But to prove him a principal, the defendant has produced the original account for which the bond was given, and from this it appears that the debits and credits were made in the name of John Rutledge, but many of the items on the debtor side, are for monies advanced to complainant and his brother. Being jointly charged in the account, there then *406arises a presumption, that they were also joint principals in the bond; but the *onus*probandi, lies upon the com-. piajnant *■*and to make out his case to the satisfaction, of the court, it was incumbent on him to prove that he was a surety^ yve are therefore of opinion, that complainant is not entitled to relief on the ground of his being only surety. It will of course become needless to examine his second ground. But it is urged in his third ground, that defendant has changed the nature of the original contract, by a new agreement; and therefore that he has released complainant from his bond. Now if the premises are proved, the conclusion will follow. Let us then examine. Complainant states in his bill, that having conversed with Mr. Edward Rutledge on the subject of the bond, they agreed together that Edward Rutledge shAuld pay 1000/. and assume the balance of the *debt;*and that complainant should pay defendant the nett amount of his crop for the year 1799; which agreement was communicated to defendant by letter, and that he acceded thereto. To prove this, complainant has produced his letter which con<-tains no more than the proposition on his part. But defendant in his answer, denies that he ever acceded to the proposition contained in this letter. Complainant’s allegation being thus denied by the answer, and no proof being brought to contradict it, according to a well known rule of this court, we are obliged to give full credit to the answer. Complainant then having failed to prove that he was only a surety and not a principal; and having also failed in his proof, that defendant has released him from the bond; and these being, in the opinion of the court, only strong grounds alleged in his behalf,

We are therefore obliged to decide that he is not entitled to the relief prayed for by the bill. Wherefore it is • ordered and decreed that the injunction in this case be dissolved, and that complainant do pay the costs of this suit.

A petition for a re-hearing was afterwards presented to *407the court, and fully argued before Chancellors Jahes and rji THOMPSON.

For the petitioner, it was contended by Mr. K. L. Si-mons, that the petitioner sets up a claim to the relief of ’ 1 r tile court, upon two grounds: '

1st. That being only a surety for the debt, defendant’s Conduct to the principal, has discharged his responsibility.

2d. That the defendant virtually agreed to release him on being paid a part of the debt, which was accordingly paid.

The law is admitted that the answer of defendant is evidence. But what is his answer? The bill states that Mr. J. R. was applied to for the payment of the amount filed by complainant, which is admitted.

The averment of defendant however is only an inference of which the court is to judge. (Vide p. 3. of the answer.)

The admission of a consequence in law or equity, will not bind defendant. See the case of Pearce vs. Groves, 3d. Atk. 522, Ergo it cannot conclude the complainant.

It must then rest on the account. What privity is there between Greenwood and Higginson, and the petitioner? None.

Could an action be maintained against him? Surely not. The books did'not prove the debt to be the petitioner’s. As well might an action be maintained against any other person.

But the counsel think it immaterial whether an action could be sustained or not, because Mr. John Rutledge, being the head of the family, and there having been some sums advanced to the petitioner, equity will compel him to pay.

The sum advanced to the petitioner was 645/. 19s. *6d,*The sum claimed on the bond, is nearly 3000/. Is the principle tolerable as a general rule ? Surely7 it is not. It goes too far.

Does the connection of the parties vary thejustice of the *408case ? Or must the court, because they are brothers, presume the petitioner had no supplies but from his elder brother ?

Then it is material to the consideration whether an ac-tion would lie. If an action would lie against Mr. H. Ri non'e could be maintained against Mr. j. R. to whom the credit was given, and the charge made. What motley principles of justice would this lead to.

But if all these absurdities were reconcileable, still the advances were paid long before the bond was liquidated | for that is admitted to be the fact, provided the remittances were applied to the advances exclusively. Apply them to the entire extent of J. R’s. dealings during the period that H. R. was in England *;*apply them as they are in the account, and the entire debt for that period has been satisfied. ’ On the 27th November^ 1767, 645/. *19s. Sd'.*was the whole amount advanced for H. R.

The entire balance against Mr. J. R. at that time, was *fS7L 17s. 8d. ■■*

On the 31st December, of that year, the 'sums paid by" J. R. exceeded that amount by more than 390/.

Did Greenwood ever apply to H. R. ? Who compounded interest and principal ? Who settled the terms of payment? If he'was liable he should have been consulted.

Sed p. 1. and 2 of the' answer, by which it appears that Mr. H. R. was not even consulted.

But it is said it does not appear to the court but that E. R. and H. R. signed for their aliquot parts : but there is no foundation for this idea.

The complainant was regarded as surety in this bond, in the case of H. R. vs. the executor of E. Rutledge.

But the defendant contends that the decree in that suit was *res inter alios*acta, and not conclusive. This is true; but the decree may surely be evidence' of a fact, though it does not bind the rights of one who is no party to it.

Depositions in a former decree in Chancery are admitted to be read, the same matter being then under exami-ñation as now. Cases in Chancery 73, 175,

*409Though neither the plaintiff, nor any under whom lie claims, were parties to the former cause. Reports of C. Cases, 73. 2 Roll. 679, cited in Comyns. by Kid, vol. 2, p. 306, 3d edition.

If Mr. H. R. should be considered as a principal, on account of the advances for him, he can’t be so for 3000/. when he received but 600/.

It has been said that Mr. J. R. declared his brother H. R. was a principal. This is not proved — if it were, it is not evidence; and it could only extend to the advances.

It appears then that plaintiff was surety and not principal *;*and this lets in the equitable rule, That a surety has a right to call on the creditor to sue his principal, and if he refuses, it is at his. own peril.

In Butler and the comptroller general, it was expressly so declared. In Rees & Berrington — “ if the application is made, it is the creditor’s duty to comply.”

There are several grounds upon which this court has re~ leived; but the above is the one which has never varied.

Defendant made no application for payment to petitioner till May, 1799, one year after the five instalments became due — (p. 2 and 6 of the answer.)

All former applications were made to E. and J. R. — ■ (p. 2 and 7 of the answer.)

The defendant was required to sue Mr. J. R. in May, 1799, but he refused — (p. 5.)

There was a positive agreement with Mr. E. R. to extend the time — (p. 5.)

It is said defendant denies it, and that his answer is conclusive. But this is not so, if the answer be carefully examined — (p. 5.)

Again it is said it was with petitioner’s assent the credit was extended. If his assent is proved, there is an end of the question. But defendant cannot give or alter the terms of the assent, by his answer.

It is said thepetitioner had notice of the extension of credit, And the letters of J. R, are relied on to shew it. But *410they are dated in 1799, and petitioner then required plaintiff to sue the bond.

®llt n<ráce cannoi affect the petitioner. It is not like the case of bills and notes. His having notice could not enable him to force defendant to sue the bond.

The bond of indemnity respects other claims besides this one.

The strong equity of the petitioner occurred when the request to sue was made and rejected, in May, ’99. And the case ofNesbitand Smith shews that the bond of indemnity cannot affect it.

It is contended that the decree between H. M. R. and H, R. is a bar to the latter in this suit. The counsel has taken opposite grounds on this point. At one time it is *res inter alios*acta, and cannot be regarded. At another time it bars petitioner, because it was upon the ground of his being bound to the defendant, that it was made. But the truth is, that it embraces various subjects. The bill of petitioner rests part of his equity upon the liability of the funds embraced by that decree to the debt of defendant.

Had the petitioner dropt that suit, it would have relinquished part of his equity.

But it is said that if petitioner succeeds, defendant will be cut off from those very funds.

But this argument is contradictory. In one breath it is said the petitioner must loose his equity because he has rendered those funds amenable to the demand of the defendant, and yet if he succeeds, defendant will not have the benefit of those funds.

It is said the suit might have been useless against Mr. John Rutledge.

In Rees and Berrington the court said it would not speculate on that question.

The payment made by Mr. H. R. in consequence of the agreement, is said to have been merely on account, because it did not discharge the bond. But the creditor by accepting that payment, ratified the terms on which it was *411offered, and acquiesced therein, and this put an end to the liability of Mr. H. R.

If the court should, after all, not perceive sufficient grounds to reverse the decree, yet it may surely continue the injunction, until the funds destined under the mortgage made by Mr. J. R. to indemnify his brothers, can be añade available, for in agreeing to take 1000/. from Mr. E. R. and the crop of defendant, he is entitled to the benefit of the securities they had, and ought to wait .till they are made productive.

For the defendant, it was argued, where the complainant calls for an answer, that answer is conclusive, unless contradicted by two witnesses. The defendant has denied the allegation that Mr. H. R. was surety, and produced am. account, in which are items for the use and benefit of Mr. H. R. and he is not contradicted..

It must be admitted the bond was given in part for the advances to Mr. H. R. He would not inquire whether an action will lie at law, but Mr. J. R. being the head of the family, upon the principles of equity, Mr. H. R. ought to pay for these advances made for his own use.

Admits the account as far as it respects Mr. H. R. would be discharged, if the credits were applied exclusively to that account. But there is no reason why they should be so applied.

Answer states that defendant believes Mr. J. R. communicated with Mr. H, R. respecting defendant’s application for payment. Mr. J. R’s. letters prove it.

Admitting Mr. H. R. merely a surety, Mr. Greenwood has done nothing to discharge him. Mr. H. R. paid two hundred pounds unconditionally on the bond. Defendant expressly swears he did not intend to receive it in full or under any agreement — but as a general payment.

The decree between the executor of E. R. and petitioner was *res inter alios acta,*as to this defendant.

Consider Mr. Rutledge as surety, the case of But-*412Ier & Hamilton, if properly examined and applied, con-eludes him. The court refused to release the security.

The Pr^nc^Pa^ c;lses on this suhject, goes upon the circumstance of the obligee extending the time of payment, and depriving the surety of his right to have the principal sued, when he might require it. Mere indulgence is not *enough;*it must be such an actual extension of the time of payment as varies the contract.

~Was any credit ever given to Mr. J. R. against the consent of the petitioner ? Mr. Greenwood offered to sue all the obligors, but it was refused. This shewed that he considered all to be principals. Greenwood never put it out of his power to sue the principal at any moment.

Mr. H. R. knew G. had indulged before the last instalment became due. The bill states that Mr. H. R. inquired of Iris brother Edward in 179/, respecting this bond, and took a bond of indemnity from Mr. E. R.

There is but one point on which any hope could be reasonably entertained, viz.’ a release. But what proof of that ? The receipt for the 200/. is unconditional. The answer is express to this fact, and it was not against the consent of the security that the creditor waited for the 1000/. promised by Mr. E. R.

If Mr. H. R. was discharged by laches *of the*creditor, upon what principle did he apply to the court to indemnify her out of the estates of Messrs. E. & J. Rutledge *i*

The decree in the suit by H. R. against the executors of E. R. directs an indemnification of petitioner against the bond. This surely admits his liability under the bond.— .But if it did not, should a decree made *sub sileniio*govern the rights of third persons ? Surely not.

Chancellor James

afterwards delivered the decree of the court.

Petition for a re-hearing, and to reverse the former decree in this case.

The court have reconsidered this case with much at-tcntjon, and with a determination, that if there should be *413sufficient grounds to retract their former opinion, that they would do so, rather than persist in error. But while they consider it as obstinacy,not to give up a former opinion, although convinced that it is *wrong;*they are also fully sensible, that until such conviction does take place, that it would argue a want of firmness to waiver or to change. Under these impressions, we have reconsidered this cause, rejecting at the same time, as far as we have been able to do, all former impressions upon the- subject j and we now offer our opinion fully upon the case.

The grounds which the petitioner has offered for consideration, appear to be nearly the same as those which were submitted to us on the former argument. They are four fold.

1st. That he was surety, and not principal in the bond which was given to the defendant,' and therefore entitled to the equity which in certain cases has lately arisen in favor of sureties. „

2d. That the obligee was guilty of laches, in not putting the bond in suit against the principal, when required by the surety, and the principal having afterwards become insolvent, that therefore the surety has become exonerated.

3d. That the obligee has changed the nature of the original contract, by entering into a new one with the petitioner; and that the latter is bound only on such new contract.

4th. That the former decree given in this case is repugnant to the decree given in the case of the petitioner against Henry M. Rutledge, (Exor. of E. Rutledge.)

Besides, taking the above grounds, the petitioner has urged, that if the opinion of the court should be still against him, that the injunction be continued, until the. funds secured to the petitioner by the latter decree can be brought into operation, and the defendant 'receive payment from them, so far as.they may go.

In delivering our present opinion, we will at present waive the first ground taken by the court in the- decree, *414viz: That the petitioner has failed in proving that he was a surety to the bond, and will proceed to examine the question, as if he were acknowledged a surety, which is a stronger ground for the petitioner.

Then upon the 2d. ground- of the alleged laches in the defendant, it appears in evidence that the bond was given on the 8th day of April, 1793, payable in five equal annual instalments — that the first instalment consequently became due on the 8ih April, 1794, and the last, on the *8th*April, 1798, and that defendant might have commenced his action against the principal John Rutledge, as soon as the first instalment became due *;*that however he did not do so until April, 1800, about two years after the last in-stalment became due. It further appears that defendant applied to the petitioner for the first time for payment of the debt, about fourteen months after the last instalment became due; at which time the petitioner required him to put the bond in suit against the principal, and he declined it, but proposed to put it in suit against all three of the obligors,which petitioner in his turn declined. It is on this statement of facts that the charge of laches against the defendant appears to be founded. Now the equity that is contended for, if it arises at all, must arise in favor of one who is bound by a solemn contract under his hand and *seal;*and we are of opinion, that before he can on this ground exonerate himself from such contract, he ought first to shew that he himself has been vigilent, “ vigilant-*ibusnon dormiejtiibus leges*svbveniimt,” is a maxim which appears peculiarly to apply to him who is seeking relief from this court. Besides the very nature of a contract, imposes a duty upon the debtor, either to pay when the debt becomes due, or to shew to the creditor some good cause why he should hot: but a contract does not impose an equal duty upon the creditor, to require his debt as soon as it is due. Hence it will result, that when a debt becomes due, it then becomes tbe duty of the debtor to look out for the creditor, either to pay off the debt, or that if he does not mean to pay it, that he may entitle *415himself to some equity, that may exonerate him from it. But the petitioner having done neither in this case, he it is who has been guilty of the laches, and not the defendant. Upon this kind of reasoning, we apprehend, that that part of the case of Butler vs. the Comptroller is founded, where it is said “ that it is incumbent on the security, before he can expect relief, to apply to the obligee, and require him to sue the principal.” If it is his duty to apply to the obligee, he ought therefore to have applied in a reasonable time, after the first instalment became due; but it appears, that he waited for five years and four months after that period, before he required the obligee to sue jhe principal; and even then, that he did not look out for the obligee, to claim his equity, but the obligee looked out for him, to demand payment of his debt. Therefore, both on the ground of obligation or duty, and on the authority of the cases cited, it appears that it is the petitioner who was guilty of the laches, and not the obligee *;*and consequently, that the petitioner is not entitled to the relief prayed upon his second ground. And this point being determined against him as surety, which is the highest ground on which he could stand, *vice*versa, as in the decree, it now becomes unnecessary to inquire whether he was a principal or not.

We now proceed to the third ground of the petitioner, viz : That defendant has changed the nature of the contract, and therefore has exonerated him from the bond. To establish this ground, the petitioner states in his bill, “ that after the application above mentioned from the said William Greenwood, (“ that is the application from him to the petitioner for payment of the bond,”) and having conversed with Edward Rutledge on the subject, the said Edward and your orator agreed that your orator should pay the said Wm. the nett amount of his crop of that year, after deducting his plantation expenses : and the said Edward promised to pay one thousand pounds, and to assume the balance of the debt, which proposition your orator communicated by letter to the said William, and he ac*416quiesced therein.” Now it is not pretended that the de» fend ant was a party to the agreement between the petition» er’ anc^ Mr. Edward Rutledge. Then let us see how he acquiesced in the pi'oposition of the petitioner. The letter °1 petitioner of the 7th June, 1799, to which he refers, contains no more than the proposition on his part, but the assent of the defendant is necessary before a new contract, can arise.

Then how is this assent to be proved ? His silence of fourteen months is not even urged as an assent; and if it were, we do not see how his silence can be construed into such an assent as to do away an existing contract. But it is attempted to prove his assent by bis letter of the. 22d of August, 1800, and by his answer. We will first turn to the answer. The defendant has stated in it — “ that he denies he ever acceded to the proposition contained in the letter of the 7th of June, 1799, any further than agreeing to wait for the 1000/. from the said Edward Rutledge, and the nett proceeds of the crop of complainant; and that in so doing he had not the most distant idea or intention of releasing or exonerating any of the obligors to the said bond from their liability to the payment of the said debt, or any part thereof.” Now it is contended that it is immaterial what his ideas or intentions were, if he has in fact exonerated the petitioner. But this letter contains no clear and distinct proposition that defendant must look ño further to the petitioner than for his crop of that year *;■*and in fairness, the assent of the defendant must depend upon his idea and intention at the time. If it had been proposed to him clearly, that by thus waiting for his money, he must loose his lien on the bond, is it not to be supposed that he would, in an instant, have rejected the proposal ? He would have been the *merest novice*in the world if he had not. Then we have no idea that men should be thus concluded in their rights, without having a full statement of facts laid before them; nor that while they are extending favors they should be used as weapons -against them. Proposals of this collateral kind are so com-*417in on from debtors to creditors, and are so often in favor assented to, that were this court upon such grounds to cx-tend relief, it would impair the obligation of contracts.— But independent of these considerations, the answer ap- • • pears to contain a full denial of the assent of the defendant, and therefore it must be taken as evidence against the petitioner, until contradicted by the evidence of two witnesses, or of one witness, and circumstances. However no such contradiction appears. But it is said that defendants letter of the 23d August, 1800, is a partial affirmance of the new contract, and that he is not to affirm in part and deny in part. The passage relied upon in that letter is as follows — “ By your letter of the 7th • of June, 1799, you engage to pay me the nett amount of your crop of that year, deducting plantation expenses;, Upwards of fourteen months have elapsed, and I have received no payment, however you may act with regard to that engagement.”

Here the counsel for the petitioner has always stopped, and has inferred from this passage alone, that the defendant has made a partial affirmance of the contract. But even this will not bear him out, for the words, “ however you may act;” evidently import, that the defendant left . the petitioner to do as he pleased as to that engagement; while he at the same time; and in the same breath declares in the foregoing part of the letter, “ that he must look to him for the debt,” and in the subsequent part of it, “ that he was now-under an absolute necessity .of requiring payment of the whole debt from him.” Taking the whole of this letter together, it therefore appears to us that it is rather a disagreement than an assent, to any new contract.

On the 4th ground of petitioner, the court will be very short. The defendant was no party to the suit between the petitioner and Henry M. Rutledge ; therefore none of the acts of the parties thereto can conclude his rights : the charges in the bill, and the admissions in the answer *418being as to him, *res inter alios acta.*This we deem a suffix cient answer to this ground.

Therefore upon deliberate reconsideration of this case, the court are clearly of opinion that the petitioner is not entitled to the relief prayed for in his bill' upon his 2d ground^ because he himself was guilty of the laches complained of, and not the defendant: nor upon his third ground, because no new contract has been proved: nor upon his 4th ground, because the decree in the case of the petitioner and H. M. Rutledge can-Slot bind a third person who was no party to the same. It remains to consider whether the injunction should be continued until the funds secured to the petitioner can be brought into operation. And upon this application, the court are of opinion, that as the petitioner has failed hi establishing his grounds, to entitle him to any relief of this court, they cannot now find one principle upon which to decide, that defendant must wait till it would be in the power of petitioner to bring those funds into operation.' — ' We have not determined that defendant is obliged to receive those funds ; therefore there cannot' be any good reason why he should be delayed, until the monies arising from them can be raised. The petitioner has already had in the case against H. M. Rutledge, the assistance of this court as far as it could go, in bringing in those funds to his assistance : and there we must stop. Wherefore for the several reasons above stated, the court are of opinion, that the petition of the complainant be dismissed, and that’ the former decree in this ease be affirmed*