
    GULDIN VS. FABER.
    The same facts which establish the non-payment of the debt on a bond as against the principal, affect the surety.
    Delay in suing the principal, not arising from his request, does not release the surety, or his estate after his death.
    Error to Common Pleas of Berks County. No. 365 January Term, 1870.
    This was an action to recover the amount of a bond, dated January 21, 1842, payable January 21, 1843, for $165 executed by Abraham Guldin and John Guldin, his father, as his surety. Abraham Guldin paid the interest until January 21, 1860. John Guldiu died in the spring of 1852, and his will was proved on June 26, 1852, by which he directed his real estate to be appraised and could be taken by his sons, Charles, Samuel, John, David, Abraham and Isaac suecessivively. The proceeds of the real estate and of the personal property was to be divided equally among his six children. The executors published notices notifying all persons having claims against the estate to present them. Sarah Faber, a neighbor, having this bond, gave no notice to the executors. The executors filed their account which was confirmed in August, 1855, and distribution was made among the heirs. On March 4, 1863, Sarah Faber brought suit on the bond against Charles and Isaac Guldin, executors of John Guldin, deceased. The court charged the jury as follows per
    Woodward, P. J.:
    The counsel for the defendant have asked the Court to charge the jury that the plaintiff is not entitled to recover on the ground first, that from the lapse of time between the date of payment of the principal debt and the date of the commencemeut of the suit payment of the bond is a presumption of the law; and secondly, that from her long delay, while the estate of John Guldin was in process of settlement and distribution, the plaintiff is to be taken to have estopped herself from asserting any claim founded on this bond against the defendant. This instruction the Court declines to give. In regard to the first ground of the defence- the law is settled that the lapse of twenty years raises the presumption of payment of a debt secured by a specialty. This presumption, however, may be rebutted by evidence on the part of the plaintiff, and if the delay in prosecuting a security is accounted for to the satisfaction of the jury, the lapse of time would not of itself be sufficient to bar a recovery. The evidence in this cause is submitted to the jury on this question, and they will ascertain whether it is sufficient to rebut the presumption of payment, which would arise from the fact that there was an interval of more than twenty years from the time the bond was payable on January 21,1843, to the time when the summons was issued on March 4, 1863. In order to constitute a defence on the-ground of an estoppel, it should appear that the party who sets up such a defence has been in some way injured or misled, some declaration made, some act done, or some duty omitted on the part of the plaintiff in consequence of which the defendant has acted should be established. Whether there is proof in this case of fact which would constitute an estoppel against the plaintiff it is for 'the jury to decide.
    April 22,1867, verdict for plaintiff for $154.58.
    Guldin then took a writ of error complaining of the charge of the court.
    
      A. S. Sassaman and S. L. Young, Esqs., for plaintiff in error argued ;
    that the presumption of payment arose in this case; Cope vs. Humphreys, 14 S. & R. 15; Coleman vs. Fobes, 10 Harris 156. The charge of the Court on the subject of estoppel was so brief as to mislead the jury, Faber had a right to be paid when the estate was distributed, if at any time. She ought to have commenced suit within five years from the decedent’s death; Commonwealth vs. Pool, 6 Watts 33; Seitzinger vs. Fisher, 1 W. & S. 295; Bland vs. Umstead, 11 H. 317. The surety is negligent if he does not warn the creditor to proceed; United States vs. Simpson, 3 Penna. 440. Here plaintiff was warned to make the claim. She had a means of satifying her claim but let it slip and is debarred. Morrison vs. Hartman, 2 Harris 56; McClintock’s Appeal, 5 Casey 361. The statute barred the claim; Mitcheltree vs. Veach, 7 Casey 455.
    
      James N. and Daniel Ermentrout, Esqs., contra;
    argued ; that the obligation of the surety is coextensive with that of the principal, and is binding after the principal’s death. White vs. Commonwealth, 3 Wr. 167. Mere negligence or inactivity does not discharge a surety; Cope vs. Smith, 8 S. & R 110; United States vs. Simpson, 3 Penna. 439; Morrison vs. Hartman, 2 H. 56; Marberger vs. Pott, 4 H 13; Erie Bank vs. Gibson, 1 W. 147; Johnston vs. Thompson, 4 W. 446; Richards vs. Commonwealth; 4 Wr. 150. The executor should have taken a refunding bond, Act February 24, 1834, Sect. 41, P. Laws 81; Musser vs. Oliver, 9 Harris 362.
   The Supreme Court affirmed the decision of the court below, on March 21, 1870, in the following opinion, per

Agnew, J.

This is a very clear case, and it is difficult to see how it could be suspected that the judge had committed any error. The payment of interest on the bond by the principal down to 1860, and the testimony of the principal himself, repel the presumption of payment arising from lapse of time. The surety is in no better position than the principal; and the same facts which establish the non-payment of the bond as to the principal, affect the surety. White’s Exrs. vs. Commonwealth, 3 Wright, 167.

There is not a single element of equitable estoppel in the case. The mere omission to sue, prompted by no request of the surety, and no insolvency of the principal as the effect of delay, works no estoppel. The settlement of the surety’s estate is no bar, where sufficient assets remain for payment. The executor or administrator is bound by law to take a refunding bond before he distributes the balance on his account, and if he fail he cannot impute the loss to the creditor.

Judgment affirmed.  