Inkster v. First National Bank

■Ohristiancy, J. Without expressing any opinion upon the ease of a mere .guaranty, and without undertaking to decide whether the plaintiff in error might or might not, in a court of equity, by giving proper indemnity, have called upon the bank to proceed against White for the collection of the note; and [148] treating the question now before us as one of common law only (which it is), we think the circuit court was right in holding that the facts relied upon by the defendant below constituted no defense to the action. As between him and the bank, so far as the right of action was concerned, he was a maker of the note, and a principal. As between him and White, he was but a surety; and though the bank was apprised of this by his signature upon the face of the note as surety, this did not, in reference to the question here involved, change the nature of his liability to the payee or holder, or make it any more the duty of the latter'to proceed against White, at his request, than if he had signed as a principal maker without adding to his signature the word “ surety.” His liability to the holder was absolute and not conditional, and his duty was to pay the note; and, though as between himself and White he was but a surety, he cannot complain of auy hardship because the holder would not, at his request, proceed to bring suit against the principal, as it was in his own power, at any moment after default, to pay the note, take it up, and proceed himself against his principal for the amount. This was the duty which his contract imposed upon him by the common law, and such was the remedy which the common law gave him upon the performance of that duty. Such we understand to be the well settled general rule as to the obligation and rights of sureties, and we see nothing in this case to take it out of the general rule. The case of Pain v. Packard, 13 Johns., 174 (which has been followed in New York, not without some vigorous protests, and to some extent in some other states), was, we think, a clear departure from the common law; and we find nothing in the English decisions to warrant the qualifications of a surety’s liabilities there recognized. The judgment of the circuit court must be affirmed, with costs. The other Justices concurred.