Klingensmith v. Klingensmith's

The opinion of the court was delivered by Lowrie, C. J. It seems to us that there was no error in the admission of evidence, nor in the application of it. But there is error in the answer to the plaintiff’s third proposition. The action is against one of two sureties. The other had been discharged, by the neglect of the plaintiff to sue the principal after due notice. This does not discharge both, where by law a several action may be brought. The surety not discharged may be sued for his proportion of the amount. This principle is so well stated and justified by Mr. Justice Rosees, in the case of Schock v. Miller, 10 State Rep. 401, that we may content ourselves with referring to that decision. Judgment reversed, and a new trial awarded.