Smithers v. Needham

3 Del. Cas. 200, 1828 Del. LEXIS 1

• Court: Court of Chancery of Delaware
• Decided: April 18, 1828
• Status: Published

Opinion

The result of these cases is:

First, that in case of a bond given for the payment of money by a principal and surety, the obligee need not sue on the same, but may remain passive; and still the surety continues liable. Mere delay in suing the principal will not discharge the surety.

Second, that if the obligee enlarges the time of payment or delays suit by a positive contract with the principal, he thereby discharges the surety.

Third, that if the obligee recovers judgment against the principal, and takes out execution, and waives, or withdraws, or countermands it, he discharges the surety.

Fourth, that a mere request made by the surety to the obligee to proceed against the principal, and the obligee neglects or omits so to do, does not discharge the surety.

Fifth, that the surety may proceed in Chancery to compel the obligee to proceed against the principal, or to release the surety.

Sixth, that a surety may make his defense at law as well as in equity. The rules for relief are the same at law as in equity, when the facts are the same in both courts.

Seventh, that when a surety has been sued at law and makes his defense, which is overruled as insufficient, he cannot afterward, on the same facts only, obtain relief in equity.

Eighth, that the indorser of a promissory note who has been charged by due notice of the default of the maker, and thereby fixed with the debt, is not to be considered as a surety, but as a principal debtor; and the holder may proceed against the maker and indorser, or either, and may take out execution against the maker, or not, and may countermand such execution without discharging the indorser. See 2 Cox 63.