Jones v. Sarchett

Day, Ch. J. — The petition alleges that at the time of taking said note plaintiff expressly reserved his right to an immediate suit on the bond, and it was expressly understood between plaintiff and the principal on said bond that the remedy thereon was not suspended. These allegations of the petition are admitted by the demurrer. The sureties could, then, notwithstanding the acceptance of the note, have'required the plaintiff to commence suit on the bond, or to permit the sureties to do so,..as jn’ovided in section 2108 of the Code. [522] , The law is well settled that when the note of a principal debtor upon a bond is taken payable at a fixed future time, the surety is not discharged, if the right of immediate action upon the bond is reserved. See Brandt on Suretyship, sections 318, 329, and authorities cited; Paine v. Voorhees, 26 Wis., 522; United States v. Hodge et al., 6 How. (U. S.), 279; Wyke v. Rogers, 1 De Gex. Mac. & Gor., 408; Fox v. Parker & Cutler, 44 Barb., 541; Claggett v. Salmon, 5 Gill and Johns., 314; Hagey v. Hill, 75 Pa. St., 108; Owen v. Homan, 13 Beavan, 196; Price v. Barker, 4 Ellis and Black., 760; Viele v. Hoag, 24 Vt., 46; Webb v. Hewitt, 3 Kay and Johns., 438. These authorities seem to us to be decisive of the question involved. In our opinion the court erred in sustaining the demurrer. Beversed.