
    VIVION vs. LAFAYETTE COUNTY.
    The action of tho circuit court in giving or refusing instructions will not be reviewed by the supreme court, unless it be assigned in a motion for new trial.
    APPEAL from Lafayette Circuit Court.
    Hayden, for appellant.
    Leonard, for appellee.
    
      1. The neglect of the county court to take a real estate mortgage for the better security of the money loaned is no discharge of the securities from their liability. Ames & Bank vs. Root and others, 2 Metcalf Rep., 840; United States vs..Kirkpatrick, 9 Wheat. Rep.; United States vs. Vanzandt, 11 Wheat. Rep., 184; United States vs. Nickol, 12 Wheat. Rep., 505; Dox and another vs. United States, 1 Peters Rep., 318; The People vs. Russell, 4 Wendall Rep., 371.
    2. The omission to sue within thirty days after the receipt of AuIPs notice did not discharge Vivion from his liability, because:
    
      First. It is not a requisition within the meaning of the statute. Cope vs. Smith, 8 Serg. and Rawl. 110, 120; Gardiner vs. Ferry, 15 Serg. and Rawl. 117; Erie Bank vs. Gibson, 1 Watts Rep., 143; Wilson vs. Glover, 3 Barr’s Rep., 408; Parish vs. Gray, 1 Humph. Rep.. 88 (cited in 2 U. States Digest, p. 820, case 159.)
    
      Second. If it be a sufficient notice, the effect is to discharge the security who gave the notice, and it does not discharge the other sureties who did not join in it.
    3. The ruling of the circuit court as to the law of the case was not put into the motion for a new trial, and therefore, according to the settled lavs of this court, the propriety of the instructions given and refused, cannot be reviewed here.
   Judge Birch,

delivered the opinion of the court.

This was a petition in debt against Vivion, on a bond of B. F. Yantic as principal, and John B. Vivion and James Aull, as securities, made on the 7th day of February, 1840, and payable to Lafayette county with interest.

It appeared upon trial, that about the date of the bond, Yantis borrowed of the county four hundred dollars of the school fund, and. with the other obligors as bis securities, executed the note sued on. No mortgage security was given, as required by law, for reasons not necessary here to be stated.

On the second day of November, 1847, Robert Aull, who was the administrator upon the estate of James Aulls caused a written notice, addressed to W. H. Russell, who was the treasurer of the county, to be delivered to the county court, then in session, to the effect “that the estate of James Aull would no longer be held responsible as security on said note.”

Upon this state of facts, the court below declared the law to be, that neither the omission to take mortgage security of the borrower, nor the omission to sue within thirty days after the receipt of Aull’s notice discharged Vivion, (the other security,) and judgment was given against him accordingly.

We have considered it unnecessary to look into the numerous áu-thorities which are referred to in support of the rulings of the judge below, inasmuch as the third and last point which lias been made by 4he counsel for the county is deemed to be properly predicated upon .numerous and recent adjudications of this court in analagous cases.

The judgment of the circuit court is therefore affirmed.  