
    [Chambersburg,
    October 26, 1826.]
    GARDNER and another, Administrators of GARDNER, against FERREE.
    in error.
    The surety in a bond, a short time before he died, directed his wife to request the obligee to sue out the bond, as he could get the money then of the principal. Five months after the death of the surety, the wife, not being administratrix, communicated this message to the obligee; who offered her the bond to bring suit on, which she refused. Held, that these circumstances did not discharge the surety, though, by delay in bringing the suit, the property of the principal was levied on by another judgment creditor, and sold.
    Error to the Court of Common Pleas of Adams county.
    
      Jacob Ferree, the plaintiff below and defendant in error, brought this suit against Jacob Gardner and John Wiseman, administrators of Martin Gardner, deceased, the defendants below and plaintiffs in error, on a joint and several bond given hy William Gardner and Martin Gardner, dated the 1st of April, 1816, conditioned for the payment of two hundred and fifty dollars and forty-seven cents, with interest, and it was tried under the plea of payment with leave, and a verdict given for the plaintiff below.
    The facts were stated in the charge of the court to the jury to be, that Martin Gardner, a short time before he died, said his estate sTiould not pay this bond; that he was only bail, and it could be now had of William Gardner, the principal. Martin soon' died. Some time after, the witness went with the widow of Marlin to Jacob Ferree, the plaintiff, and she told him that Martin had said he must push Mr. Gardner, for it could be got from him now: and, if he did not, Martin's estate would not be liable, he was only bail. It was near the court, or after court, and Ferree said he could not till after the court, but offered the bond to her, and told her to sue, which she refused. Suit was brought to August Term, 1821, and judgment had: no fieri facias issued. On a judgment afterwards had against William Gardner, and fieri facias to April Term, 1822, at the suit of some other creditor, the money was made. The witness stated that Mr. Gardner had his personal property about him until it was sold in the last mentioned suit. Letters of administration issued about 1819 or 1820, to the defendants.
    The court then instructed the jury as follows:—
    
      “ The first point made by the plaintiff, is, that the widow had no right to demand a suit to be brought, and that it imposed no obligation on Ferree to sue. It appears to me like a casual conversation between the widow and the plaintiff, not calculated sufficiently to put him on his guard, so as to inform him that if her request was refused,' he would lose his debt. A demand coming from a stranger, if in any event good, should certainly be very pointed and clear; free from doubt or misinterpretation, giving information to the plaintiff that he would certainly lose his money, if he did not immediately proceed. I cannot consider the conversation referred to as sufficiently precise and specific, coming from the person it did, and standing in the relation she did to the parties.
    “The offer of the bond to the widow to sue upon it, and thus to save the estate of Martin, shows how reasonable it is, that such demand should not be made by a stranger, but by a person standing in the relation of surety.
    “Although Martin Gardner may in his lifetime, on his deathbed, have warned his wife that she should notify Jacob Ferree to prosecute this claim against William Gardner, or his estate would not be liable, and she in the presence of a witness, some time after his death, communicated that warning to Jacob Ferree, it would not discharge the defendants.”
    To this charge the defendants excepted.
    
      Stephens, for the plaintiff in error.
    The simple point on which the case was put, was, that the direction of a surety on his death-bed to his wife, to inform the obligee to sue, will not, if executed by the wife, be sufficient to discharge the bail. The authority of the wife to demand suit to be brought, was not .revoked by the death of the husband.
    
      Carothers, contra.
    The offer to permit the wife, who acted on the part of her husband, to bring suit on the bond, obviated every claim to a particular equity from the notice. The wife’s authority expired with her husband. There were other persons, namely, the administrators, under whose control the whole matter was, when the notice and request were given by the widow. There was an interval of a year, or at least five months from the death of the husband. No one but the administrators could move in the matter, and the plaintiff was bound to attend to the requisition of no one else.
   The opinion of the court, (Tilgiiman,* C. J. taking no part in the judgment, having been indisposed during the argument,) was delivered by

Gibson, J.

Courts of equity have gone to an extreme in favour of sureties, often granting relief for a constructive equity, the existence of which the surety himself did not even suspect. I would be unwilling, in cases of this sort, to go beyond the rule in Cope v. Smith, 8 Serg. & Rawle, 110, that the surety shall be exonerated only where the obligee has refused to bring suit, or, (what I take to be the same thing,) to suffer the surety to do it in his name, after a positive request and explicit declaration by the surety that he would otherwise hold himself discharged. The reporter has added a query, whether the surety would be discharged, if it should appear that the insolvency of the principal would have prevented the money from being obtained, if suit had been brought when required. Surely not. A surety is liable at,law, and when he comes into equity, he ought to show a substantial ground of relief,—actual injury, and not a mere possibility of injury from the negligence of the obligee,—for an equity can arise from nothing less. A constructive injury can give rise only to a constructive equity, which is insufficient to discharge an obligation arising from one of the most solemn acts known to the law. He surely ought not to be exonerated, because the obligee did not choose to indulge him in an experiment that would have produced no consequences. He ought to show that his request was reasonable, and that he was deprived of what was not merely a speculative benefit. In the court below no difficulty was made as to this, and we are to suppose that the money might have been obtained from the principal. But it appeared the surety had declared on his death-bed that his estate should not be liable for this debt, as he was only a surety, and the money might be had of the principal; that some time after his death, (how long is not stated in the record, but it is agreed to have been about five mouths,) his widow informed the obligee, that her husband had said, he must push William Gardner,” the principal, for that the money could be got from him then, and that if he did not, the estate of her husband, who was only a surety, would be exonerated; and that the obligee refused to do so then, but offered her the bond with permission to sue in his name, which she declined. I intimate no opinion of the court, whether such a request made immediately after the husband’s death, but before the widow had administered, would carry with it the authority which the husband had over the subject-matter in his lifetime. For myself, I say it would not. A man can exercise a control over his estate, after his death, only by the instrumentality of a testamentary direction, which this was not; and the instant, therefore, that the surety died, the right to stir in the matter devolved on his personal representatives. If a case should occur, in which it would be necessary to act before administration could be obtained, the interest of the widow in behalf of herself and her children, would be a sufficient authority; but she is entitled to administration instantly. Certainly she would have no authority, gfter administration granted to another. I am therefore of opinion the obligee might consider her as a stranger. But I have the authority of the whole court in saying, that under the circumstances of the case, the request came too late; and that at so distant a period-, the obligee might disregard the request of any one but ‘the legal representative. And, besides, the offer to permit the widow to use the bond, in any way she might think beneficial to her husband’s estate, would effectually rebut an.y equh ty that might otherwise have arisen. If she be considered competent to act in the matter at all, she must be considered so for every purpose. Now, what more can be required than to invest the surety with the means in the power of the obligee. The surety does not stand on the ground of a legal advantage, but the obligee does, and he is not bound to do a single act to assist the surety, when the surety can help himself; it being his duty only to permit the surety to manage the legal responsibilities of the parties, so as to cast the burthen where it ought to be borne. The offer of the plaintiff, therefore, furnished a decisive objection to the equity set up; and, waiving other considerations, the plaintiff was on that ground entitled to recover.

Judgment affirmed.  