as a waiver of the statute, it is intelligable; but how it can animate a promissory note of some ten years standing with all its mercantile incidents, and yet protect it from the operation of the statute as a note under six years old is not so readily perceived. 9 Wend. 293.

The doctrine in Massachusetts is, that the acknowledgment of the debt by the defendant, within six years, shows that "the contract is not within the intent of the statute." viii. Mass. Rep. 133, xI. do 452.

There is no subject upon which there has been so many conflicting opinions as that of the statute of limitations. The books are full of these, and present indications are unfavorable to the hope of the courts ariving at any thing like uniformity. This demonstrates that false theories have been assumed, and ungarded speculations indulged, from which contradictory and illegal decisions must have necessarily followed.

PINTARD ET AL. IMPLEADED &c. v. DAVIS.

Court of Errors and Appeals of New Jersey. October Term, 1846.

1. One of two or more co-obligors in a money bond cannot at law aver that he is only a surety.

2. A surety is not discharged by requesting the creditor to sue the principal debtor while still solvent, though the creditor neglects to sue, and the debtor afterwards becomes insolvent.

3. A surety cannot by notice in pais compel the creditor to sue the principal.

Error to the Supreme Court. This was an action of debt brought in the Monmouth Circuit Court by Davis

against Pintard and two others who were impleaded with one Morford, upon a joint bond, dated June 9, 1829, given by the plaintiffs in error and the said Morford to Davis in the penal sum of $800, conditioned to pay $400 in one year from date. The declaration was in the usual form. The defendants (except Morford) pleaded specially that the action ought not to be maintained against them, because Morford signed the bond as principal and they as sureties only, and that the bond was given for the proper debt of Morford, of which the plaintiff had notice at the date of the bond. That after the bond became due, to wit: in 1833 they requested the plaintiff to collect the money of Morford who was then solvent, and so continued for eight years thereafter, and that the same could then have been collected of him, but that the plaintiff without reasonable excuse neglected to take any legal measures against him or to proceed in any way to collect the same. That Morford became insolvent and so continues, so that by the neglect of the plaintiff the loss will fall on his sureties if they should be compelled to pay the debt.

To this plea the plaintiff demurred, and the Circuit Court held the plea to be insufficient. The judgment of the Circuit Court was affirmed on Error in the Supreme Court, (Spencer's Rep. 205) and threupon a writ of error was brought to this Court.

Mr. WALL & Mr. VROOM for plaintiff in error: In equity the surety may compel the creditor to collect the debt and any thing done by the principal to injure the surety, as by giving time or changing the character of his liability, discharges the surety. But the surety is not obliged to resort to a court of equity to stimulate the diligence of the creditor. Although it may be admitted that it is still otherwise in England, yet here we are not so strictly bound by the forms of the common law, and re

lief may be had in many cases at law. Whether a surety is discharged or not is a legal question. Mere laches may not discharge a surety, but if injury occur in consequence of delay after notice, as in case of subsequent insolvency of the principal, then the surety is discharged. 1 Brs. C. C. 582; 2 Ves. Jr. 540; 4 Dal. 135; 8 S. & R. 110; 7 John. 332; 13 Ib. 174; 15 Ib. 433; 17 Ib. 384; 1 Hill (S. C.) Rep. 16; 3 Wend. 216; 13 Ib. 377; 10 Ib. 162; 3 Wash. C. C. R. 70, 75.

Mr. Vredenburg & Mr. Dayton contra cited 6 Ves. 734; 2 John. Ch. R. 554; 2 Pick. 581; 4 Ib. 382; 5 Ib. 307; 2 South. 585.

CARPENTER, J. Whether a surety is discharged or not may be a legal question, but in the case of a sealed contract it must be when the suretyship appears on the face of the instrument. The solemnity of such instruments forecloses in general all inquiry into the consideration.If bound as principal a defendant cannot aver at law that he is only a surety, though in equity parol evidence is admissible to show who is principal, and who surety. In this state this clear rule of the common law has never been infringed. In Manning v. Shotwell, 2 South. 584, the creditor who had been called upon to sue the principal discontinued the suit and gave him further time. The court held that this did not form any defence at law to a suit against the makers of a sealed bill.

But independent of this technical objection, which however is fatal to the legality of the plea, the defence cannot be maintained. The undertaking of such surety is absolute. It is his business to see whether the principal pays and not that of the creditor. If he lies by and the insolvency of the principal intervenes, he must abide by the loss and cannot throw it on the creditor. Mere delay to require payment, without any binding contract for that purpose and without fraud, will not discharge a surety,

and upon the facts of this plea there could be no relief even in chancery. Supposing the surety can call upon the creditor to do the most he can for his benefit, it must be upon terms that will secure the creditor from all the consequences of risk, delay or expense. Wright v. Simpson, 6 Ves. 734; 2 Story Eq. T. § 849. But no sanction has ever been given in this state to the present attempt to invert the natural order of the obligations created by the contract of surety. The cases of Pain v. Packard, 13 John. 174, and King v. Baldwin, 17 Ib. 384, are not generally recognized as authority and have introduced into the state in which they were decided a new rule between creditor and surety which we think unnecessary and inexpedient. The surety has ample means of relief more in accordance with the nature of his contract. He may compel in a Court of equity the payment of the debt, or a more obvious and simple course, he may pay the debt himself according to his undertaking, and then sue the principal upon his implied contract for re-imbursement. The present case is one of mere delay, and we do not recognise the rule that the surety by a simple demand in pais can remove the duty of active diligence from himself to the creditor. We are all of opinion that the judgment of the Supreme Court must be affirmed.

The Court (the chancellor, Whitehead, Carpenter, Randolph, Speer, Spencer, Porter, Schenck, Robinson & Sinnickson,) unanimously affirmed the judgment of the Su-, preme Court.

HORNBLOWER, C. J. and NEVINS, J. did not sit on the argument of the cause.

Supreme Court of Pennsylvania.

MIDDLE DISTRICT.

Hack et al. v. Stewart.-A father being indebted, cannot sell his real estate to his sons, allowing a part of the consideration to be retained by one of them for services rendered after he became 21 years of age in his father's family. Such sales and conveyances would inevitably lead to fraud. Burnside, J. Error to Perry Co.

Strorble v. Cleaver.-The plaintiff in an elder judgment, on a sale of the land of the defendant on a junior judgment, is not bound to come and take the money; and if the Sheriff distributes the money without paying his lien, and the money goes to the case of the defendant by paying his other debts, the elder judgment will still be good against the defendant, though its lien is discharged. Per Coulter, J. Error to Berks Co.

Judgment affirmed.

Faust v. Miller & Renno.-When the attesting witnesses to a bond saw but one of the two obligors sign and seal, the jury ought to have been instructed to inquire whether the form of the clause of attestation was purposely made general by the contrivance of the obligee to import an attestation of execution by both obligors, or whether it was done ignorantly and accidentally. If the witness subscribed it as it was prepared, without being practiced upon by the obligee, the bond was valid. The question of the honesty of the transaction should have been left to the jury. Per Gibson, C. J. Error to Berks Co.

Judgment reversed and venire de novo awarded.