
    Perry Cohea et al. vs. The Commissioners of the Sinking Fund.
    Under the statute of this state, (H. & H. 413,) limiting the period in which claims must be presented against estates of deceased persons, and providing that, on a failure to present, the claim is barred and the estate discharged from the debt, if a creditor, who holds a note against a principal and sureties, fails after the death of the principal to present it to the administrator within the prescribed time to save the bar of the statute, the sureties are not thereby discharged.
    
      Johnson v. The Planters Bank, 4 S. & M. 165, cited and confirmed.
    It seems that the statute, limiting the period in which claims may be presented against estates of deceased persons, and providing, among other things, that on a failure to present, the estate is discharged from, the debt, is but a statute of limitations.
    In error from the circuit court of Adams county; Hon. C. C. Cage, judge.
    The commissioners of the sinking fund sued Perry Cohea and others upon a note made by Charles C. Mayson as principal, and the defendants as his sureties. The defendants plead non assumpsit and the following plea, viz.: “ That the said note in said declaration mentioned and set forth, was, at the time of the making thereof, signed also by one Charles C. Mayson, by the name ofCh. C. Mayson, and that said note wasmadeand delivered to the said plaintiffs by the said Mayson, for a loan of money made by him from said plaintiffs, and that these defendants signed and executed said note merely as the sureties of said Mayson, and for no other consideration whatever, and these defendants have nbi received for their said securityships any advantage or indemnity whatever, and that the said plaintiffs well knew, af the time of 'the making and delivery of the said note, that tliese defendants signed and executed the same merely as sureties of said Mayson, and not otherwise; and these defend..''■'ants aver that after the making of said note, to wit, on the-day of-A. D. 1837, in the comity of Hinds, the said Charles C. Mayson died intestate, and afterwards, to wit, at the October term, A. D. 1837, of the probate court of Hinds county, in this state, letters of administration on the estate of the said Charles C. Mayson, deceased, were granted to Mary E. Mayson and David Shelton by the said probate court of Hinds county, that being the court having jurisdiction of the same; and the said Mary E. Mayson and David Shelton were then and there duly qualified, and did enter upon their duties as such administrators; and these defendants further aver that afterwards and within two months after the granting of the letters of administration aforesaid, the said administrators published, in the Southern Whig, a newspaper printed in this state, a notice requiring all persons, having claims against the estate of the said Charles C. Mayson, their intestate, to exhibit the same within the time limited by law, or that the same would be barred; which notice stated the granting of said letters of administration at the time aforesaid, and was in said newspaper published continuously once a week for six months according to law; and these defendants further aver that the said plaintiffs were at the time of said publication, and have ever since continued to be, residents of this state; yet the said plaintiffs did not, within eighteen months after the publication of said notice, present or cause to be presented to the said administrators the said note or claim sued on, but wholly neglected so to do; whereby the said claim hath become forever barred, and the estate of the said Mayson forever discharged from the payment of the same; wherefore these defendants say that as sureties of said Mayson they are released and discharged from the said note or any liability for the same, all of which they are ready to verify wherefore, &c.”
    The plaintiffs below demurred to this plea, antü^e court sustained their demurrer. The case was then tried on. the issue, and the jury finding for the plaintiffs, the defendants ’f^ave the case here for revision. \
    
      Quitman and McMurran, for plaintiffs in error.
    1. We are aware of the decisions heretofore made upon this subject, by this court, in the cases of Kerr v. Brandon, 2. How. R. 910; Johnson v. Planters Bank, 4 S. & M. 165; and Aricks’ heirs v. Trustees of Jef. College, decided at this term, and we admit that the two first cases referred to, are much in point against us. The latter case, although the principle was reiterated, yet it was decided upon a different question. It was the case of a mortgage, which was held to be sufficient presentation by being recorded. The case from 2 Howard, contains many doubts of the court, upon the points involved. It can scarcely be regarded as a decision on any of the points involved.
    The statute under which we claim to be released, is found in H. & H. 413, § 92. This statute has none of the characteristics of a statute of limitations. It bars the claim, not the remedy. It cannot be revived by a subsequent promise, nor by a repeal of the statute. When once barred, it is forever extinguished. It may be given in evidence without being pleaded specially.
    The penalty imposed upon a defaulting creditor, is not then a suspension of his remedy, but a total extinction of his right.
    The obbligation of a surety being only accessory to that of the principal debtor, becomes extinct by the extinction of the latter. Theob. on Surety, 2, 73, $ 148. We admit that there appear to be some exceptions to this rule, but we have not been able to find any case where an exception is made of cases in which the obligation of the principal is extinguished by operation of law.
    The construction of the words in Theobald, 273, does not warrant it. The pronoun which should be taken as relative to the precedent words “bankruptcy and certificate,” and the only case referred to is Brown v. Can, 7 Bingham, which does not lay down such rule. The question there was, whether the creditor, by signing the certificate of the bankrupt, released the surety. The court held that the creditor was morally bound so to do, and that they would not visit his compliance with a moral obligation, with a penalty. Theobald, 102.
    The people of England are peculiarly a commercial community. Our policy is more that of the civil law, and under it there is no exception to the general rule, that whenever the principal obligation is extinguished, the surety is discharged. 1 Domat, 378; 1 Poth. on Con. 182.
    It was so held by Chancellor Buckner, in Miller v. Gaskins, 1 S. & M. Ch. R. 526. The relation of surety was better understood by the civilians, than by the common law writers. They hold the simple and plain proposition, that the accessory cannot exist without its principal, and that the former must cease with the latter. ¡
    The rigid policy of the common law has changed this rule, but natural justice still demands, that he should neither by omission or commission, release the principal. Chancellor Kent recognized this as a rule of equity, when he compelled a resident creditor of New Jersey to pursue his real security there before he should be permitted to sue a personal surety in another state. Hayes v. Ward, 4 J. Ch. R. 123.
    2. We insist the creditor was bound to keep alive the claim. He was notified by the administrator so to do. The law requiring him to present it constituted a part of his implied obligations to the surety. Negligence on the part of a creditor will discharge a surety if he is damnified. People v. Bor, 13 J. R. 383; Ibid. 174; 7 J. R. 332; 17 J. R. 384; Capel v. Butter, 2 Sim. & Stu. 457, cited Theob. on Surety, 98, 103.
    On the question suggested by the court on the argument, whether the state is not the substantial plaintiff or party interested, and therefore not bound by the statute requiring presentation of claims — We think the state is not in contemplation of law a party to this suit. The power of the commissioners to loan this money on notes with security is not expressly given by any law. It was held merely to be lawful for the commissioners to do so under the power to manage it. In that management they acted for themselves and on their own responsibility.
    The state is merely collaterally interested; not more so than it was in the assets of the Planters Bank; nor more than it now is in those of the Mississippi Railroad Company. But this is not a limitation, it is a bar.
    
      Freeman, attorney-general, for the defendants in error.
    1. The note sued on belongs to the state of Mississippi; the commissioners appointed to manage the same, being mere agents of the state, the state is therefore the real party in interest. Walker v. Com. of Sinking Fund, 6 How. R.; 1 S. & M. R. 179; U. S. v. Hoar, 2 Mason’s R. 314.
    2. The holder of a note is not obliged to pursue all his remedies against the maker, in order to render the indorser liable on the note. Bayley on Bills, 365 ; 6 Wend. 610 ; 8 Wend. 194.
    If a creditor fails, after the death of principal, to present case to administrator of same, the sureties are not thereby discharged. 4 S. & M. 167.
   Mr. Chief Justice Shamey

delivered the opinion of the court.

This action was instituted on a promissory note made by May-son as principal, and the plaintiffs in error as sureties. Mayson died before the institution of the suit, and the defence is that the note was not presented to his administrators within eighteen months after they gave notice to creditors to present their claims, and that as the estate of Mayson was thereby discharged, the sureties are also discharged.

This same question was raised, and very deliberately considered in the case of Johnson v. The Planters Bank, 4 S. & M. 165, and it was decided that the sureties were not discharged by such failure to present the claim to the administrator of the principal. We have been pressed to review that decision. It is said that by virtue of the statute the claim is barred and the estate discharged in case it is not presented, and that inasmuch as the obligation of the principal is totally extinguished, the accessory obligation of the surety must be also extinguished, as it has no subsisting obligation to rest upon. This doctrine of the civil law is true as a general rule, but it is subject to exceptions; there are cases in which the surety is bound more rigidly than the principal, and cases again in which the surety is bound when the principal is not; as in case of infants when the contract is absolutely void. But is it not going too far to say that this statute differs from an ordinary statute of limitations, and extinguishes the obligation, and not the remedy merely. We have held directly the reverse. Miller v. Trustees of Jefferson College, 5 S. & M. 651. By regarding this as a mere statute of limitations, the force of the argument is defeated. But it is also insisted that the plaintiffs in error have sustained a positive injury, by the neglect to make the presentment, in the loss of their recourse against the estate. They had a remedy, and if they have lost it, the fault is theirs. Besides, it is premature to complain of loss, before that point is decided against them. It may be that they still have a remedy. Altogether we see no reason why we should recede from the decision in the case of Johnson v. The Planters Bank, and accordingly affirm it.

Judgment affirmed.  