
    Hancock vs. Bryant and Hunt.
    A security since the passage of the act of 1801, ch. 18, is entitled , ... . . , ,. to the same remedies in chancery against the creditor or his principal, which he was entitled to before the passage of that act.
    Where the security notified the creditor to sue or proceed against the principal debtor, which the creditor neglected to do for two years, the principal in the mean time becoming insolvent; it was held, that in equity, the security was discharged, 
    
    It is no excuse for not suing the principal, that he lived in an adjoining State, when ho had property in this State, which might have been subjected to the payment of the debt.
    This was a bill in equity, filed by Hancock against Bryant and Hunt. The object of the bill was to obtain a perpetual injunction against a judgment obtained by-Bryant against Hancock, as security of a man by the name of M’Neill.
    From the proof in the cause, it appeared that Hancock and Hunt became bound in a bond or note, as securities for M’Neill. At the time they became his sureties, he was a merchant, residing in Warren county. He after-wards removed to Huntsville (Alabama,) leaving Hunt to wind up his business, and leavingjnotes and accounts in his bands more than sufficient to pay this debt. After the note or obligation became due, Hancock wrote to Bryant, and requested him to sue immediately on the note.
    The notice or letter was as follows:
    “M’Minnville, Dec. 6, 1819.
    
      Dear Sir: You hold a note, if it has not been paid since I saw you, on Robert M’Neill, for four hundred dollars or upwards, I feel uneasy as I am not in the habit of going security, and as it is duq, I shall expect you to proceed to collect it, as it is reported, and no doubt you have beard it, that he was broke, as to the certainty I know not, but I shall expect you to proceed to get the money, not that I think him a dishonest man, but when a man is enthralled he will try to get out the best way he can; if you do not proceed immediately to collect it, you cannot think that I am to be security.
    P. S. You had better see ’Squire Hunt, and get some notes or accounts into your hands to save yourself.”
    Bryant neglected to sue for nearly two years after he received this notice; Hancock was unable upon the trial at law to prove the delivery of this notice to M’Neill by two witnesses, as required by the act of 1801, ch. 18.
    Without detailing all the evidence as to the fact, whether if suit had been instituted shortly after the notice was given, the money could have been made out of M’Neill, it is sufficient to say, that the court was of opinion upon the facts, that if suit had been brought in reasonable time after the notice or request, that the money might have been made.
    Rucks, for complainant.
    
      Jas. Campbell, for defendants.
    
      
       Vide King vs. Baldwin, (17 John. Rep.
    
   Opinion of the court by Judge Peck.

[Catron, Judge,

dissented.] The act of 1801, ch. 18, was designed to turn an equitable remedy into a legal one, but was never designed to destroy the equitable remedy. It is on this account that the act is taken with strictness. The difficulty of making the proof of notice, as required by the act, is a strong reason why the party aggrieved should have his remedy in the court of chancery, as he would have had it,had the act never passed. The number of our acts in favour of securities, the tenor of them all, evinces what was the mind of the legislature. Take for instance, the act of 1801, ch. 15, and we find provision made for the security against whom judgment has passed: before payment of the money by such security, he may have judgment and execution against the principal debtor. This is founded in good sense, and is the essence of justice.— While the plaintiff is coercing the money from the security, the security has a writ given him by this act, by which he can reach the person or effects of a doubtful, or *■ faithless principal.

The rule in commercial law, that an endorser shall jjaye not¡Ce of non-payment by the maker before, such in-dorser shall be liable, is founded in great wisdom. What is an indorser, but a security for the money resting on the condition of notice? The acts of 1801, ch. 15 and 18; make in some respects a parallel case; by them the security has afforded liim an opportunity of redress out of the eifectsof the maker; true, no writ is given, but the law supposes a maker may he reached through his honor, and that the indorser can thus be indemnified. Our law delights in placing parties in the situations they ought in reason to occupy. It supposes there is no magic in a bond, and that so far as a security is concerned, some alleviation is necessary. He may when sued, let judgment pass, prove his condition as a security, have hisjudgment and execution, and like an indorser seek indemnity out of the effects of his principal; but to be énabled to do this, he must have the countenance and aid of the obligee. Unless the obligee will sue, the security is paralized; and it is on this the equitable principle is based, that if the obli-gee will stand and mock at the anticipated calamity of a security, equity will interpose; and the ground on which relief is given resolves itself, 1st, in the fact of request from the security to sue; and 2nd, a probability that if suit had been brought the money might have been made. To delay under such circumstances is against conscience, and in its effect is a fraud upon tile security; request in this case was made, and the suit was delayed two years after. That the money might have been made out of the principal, had the obligee been prompt on receiving notice, is made by the evidence even more than probable.— But it is said he was not bound to go to Alabama to sue. Why not? But be that as it may, however, the principal had effects in this State, and no attempt whatever is made to reach them. The decree of the Chancellor is affirmed with costs.

Decree affirmed^  