Greenawalt v. Kreider

Per Curiam. The rule for cases of this stamp, laid down in Cope v. Smith, 8 Serg. & Rawle, 116, and repeated in Gardiner v. Ferree, 15 Serg. & Rawle, 117, requires the notice to contain a positive direction to sue, with a declaration that the surety will hold himself absolved if it be not complied with; but there is no such direction in the notice before us. The defendant’s co-surety gave notice that he would no longer consider himself bound, and requested the creditor to take another bond or payment. What was the creditor to infer from that, beyond the obvious meaning of the words ? The request to take another bond is too plain to be mistaken for a request to sue; but the request to take payment, might perhaps be taken for a hint to push for the money. But, according to the plain rule laid down for all cases, a hint is not enough. It requires an explicit direction to sue, that there may be no misapprehension of the meaning. It is as easy to speak plainly as mysteriously ; and there wrnuld be no certainty in the rule if it left the courts to grope for the meaning of the surety among ambiguous words. Cases will arise which it would be difficult to determine; and we should in the end have no rule at all. Nor would the creditor know how to keep himself safe, unless he were to fly at the principal on the first intimation of the sureties’ impatience. Had his laches exonerated one of the sureties, in this instance it may well be that he could not have proceeded against the other; but it is very clear that both are bound. Judgment affirmed.