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Ambrose Cain, in Error v. Henderson Bates, Adm'r of Thomas Y. Bates, dec'd, in Error
Bay, Judge,
delivered the opinion of the court.
It is not perceived upon what ground the court below gave judgment for the defendant, for the record certainly presents no valid defence. Admitting that Bates was merely surety in the note, still he could only protect himself by giving the statutory notice to sue, and a-failure to sue within the time prescribed would have exonerated him from all liability.
Let the judgment be reversed and the cause remanded;
Judge Dry den concurring.