
    Oxford Bank versus Levi Lewis.
    Where a promissory note was signed by B and H as principals, and by the defend ant as surety, it was held, that the reception of interest in advance, of the princi pals, by the holders, after the note was overdue, did not discharge the surety.
    Upon a case staled it appeared, that the action was brought upon a joint and several promissory note for 375 dollars, dated June 12, 1826, payable to the plaintiffs or order in fifty-seven days, and signed by Hollis Bruce and Rufus Houghton as principals, and Stephen Lawton and the defendant as sureties. In February, 1827, Houghton, in addition to two payments by him on the note in 1826, paid the interest for 60 days, in advance ; but the sureties were not present at such payments. Houghton absconded on May 4, 1827, carrying off all his property with him; and Bruce failed in February, 1827. Notice of the non-payment of the note was given to the defendant in June, 1827.
    The plaintiffs were to become nonsuit or the defendants to be defaulted, according to the opinion of the Court.
    
      Sept. 30th.
    
    
      Merrick, for the defendant,
    contended that the receiving ol interest in advance, without the knowledge of the surety, was a contract to delay the collection of the note and operated as a discharge of the surety. 3 Stark. Ev. 1390; Hill v. Bull, Gilmer, 149; Jones v. Bullock, 2 Bibb, 467; Hunt v. Bridgham, 2 Pick. 581; Bellows v. Lovell, 4 Pick. 153 Gould v. Robson, 8 East, 576; English v. Darley, 2 Bos. & Pul. 61; Clark v. Devlin, 3 Bos. & Pul. 365; Smith v. Becket, 13 East, 187; Boultbee v. Stubbs, 18 Ves. 20.
    
      Barton, for the plaintiffs,
    cited Orme v. Young, 1 Holt’s N. P. Cas. 87; Hunt v. Bridgham, ubi sup.; Frye v. Barker, 4 Pick. 382; Crane v. Newell, 2 Pick. 612.
    
      
      Oct. 6th.
    
   Parker C. J.

delivered the opinion of the Court. The defendant was an original promisor, and is to be treated in all respects as such, though he is described in the note as a surety, unless some new contract has been made with those who are described as principals, which would prevent him from bringing an action. Mere delay to call on or sue the principal will not discharge the surety, as is settled in the case of Hunt v. Bridgham.

If the plaintiffs had, by any contract with the principals, disabled themselves from suing, or the surety from taking up the note in order to secure himself, a defence might be maintained. The only circumstance relied on to show this is, that after the note became due, they received the interest for sixty days in advance, which was by implication giving a new credit for that time. But they retained the power of suing and might, if they had apprehended a failure, have made an attachment. We see no ground of defence.

Defendant defaulted. 
      
       See Freeman’s Bank v. Rollins, 13 Maine R. (1 Shepley,) 202; Central Bank v. Willard, 17 Pick. 150; Blaclcstone Bank v. Hill, 10 Pick. 129; 2 Pick. (2d edit.) 585 and cases cited in notes; 14 Wendell, 165; 10 Peters, 257.
     