
    SUPERIOR COURT
    American Surety Co. vs. John F. O’Rourke et al
    Eq.No.6789.
    RESCRIPT.
    May 4, 1925.
    For Complainant: Comstock .& Canning and W. A. Graham.
    For Respondent O’Rourke: Green-ough, Easton & Cross.
    For other Respondents: John P. Beagan and Elmer S. Chase.
   TANNER, P. J.

This is a bill in equity and is heard upon the demurrer of the complainant to the special plea of John P. O’Rourke.

The plea sets up that the defendant O’Rourke was discharged from his liability to the American Surety Company because the American Surety Company had sued the Live Stock Company, thereby creating a novation which discharged Nugent and his surety O’Rourke.

We think the Court in its previous rescript .erred in holding that there was a novation, since the American Surety Company also sued Nugent. The Surety Company, therefore, did not elect to hold the Live Stock Company as its sole debtor, as would be necessary to constitute a novation.

The demurrer to the plea is therefore sustained.  