Executors of Baker v. Marshall

16 Vt. 522

• Court: Supreme Court of Vermont
• Decided: February 15, 1844
• Status: Published

Opinion

The opinion of the eourt was delivered by

Bennett, J.

The creditor, in this case, upon his own mere motion, caused the property of the principal debtor to be attached, and the property, for some cause which does not appear in the bill of exceptions, was given up to the debtor, instead of being applied in payment of the debt. There was no request by the surety to have the suit commenced by an attachment of the principal debtor’s property, — none that it should be applied in payment of the debt,— and there is no evidence that it was given up in fraud of the rights of the surety.

It is, I think, quite clear that such a state of facts cannot operate to discharge the surety. It is well settled that mere delay to sue the principal does not discharge the surety. Chit, on Cont. 421. So the delay or the neglect of the principal to sue the surety, though requested to sue him, is no discharge of the surety; and I think it makes no difference, especially at law, that the principal becomes insolvent. The surety may pay the debt, and then sue the principal ; or may be subrogated in chancery to all the rights of the creditors. The case of the Bank of Montpelier v. Dixon, 4 Vt. 587, is much like the one at bar, and is decisive of it.

The judgment of the county court is affirmed.