Hunter v. Clark

28 Tex. 159

• Court: Texas Supreme Court
• Decided: December 15, 1866
• Status: Published

Opinion

Coke, J.

—We are of opinion that the court below did not err in sustaining the exceptions of defendant to plaintiff’s petition, and in dissolving the injunction and rendering judgment against him. That the giving time to the principal by the creditor without a binding contract to do so, or by forbearance or indulgence, or a failure by the creditor to prosecute his demand with active diligence, does not release the surety, is not an open question in this court. (Burke v. Cruger, 8 Tex., 66; Cruger v. Burke, 11 Id.. 694; Payne v. Powell, 14 Id., 600.)

The surety has a remedy in his own hands, by which he can protect himself. If he elect, as in this case, to lie still and take no action either to discharge his obligation to his creditor, who has trusted him, by having the debt paid, or to protect himself by requiring, in a proper mode, greater diligence of the creditor, he must suffer.

Judgment affirmed.