
    Johnston vs. Searcy and Marshall.
    Mere delay in calling on the principal, will not discharge the surety.
    Where A, in payment of a debt, endorsed to B the note of C, and by the endorsement “waived demand and notice,” held, that although C was solvent, and remained so fifteen months after the endorsement, before which period no suit was brought against him by the endorser, still he was liable upon the endorsement.
    Johnston assigned to Searcy and Marshall, a note executed by John Gunter for thirty-four dollars; the assignment was in these words: ££I assign the within note to Searcy and Marshall, waiving demand and notice, Jan. 1, 1830.” The note was assigned in payment of a debt due by Johnston to Searcy and Marshall. From the date of the assignment to the last of August, 1S31, a period of fifteen months, Gunter was solvent; about the latter period he became insolvent. This suit was commenced in September, 1831. The circuit court charged the jury, that the defendant was bound as endorser, and that the negligence of the plaintiff in bringing the suit, would not discharge the defendant, Unless he requested them to sue in writing, and they did not sue within thirty days after the request. A verdict and judgment was rendered for the plaintiffs below.
    
      G. S. Yerger, for plaintiff.
    1. Where anote is endorsed or delivered on payment of a precedent debt, if due diligence be not used, the paity is not liable upon his endorsement, or for the original debt. Chitty on Bills, (edition of 1826) 97, 98, in notes: 5 T. R. 513: 7 Mass. Rep. 286: 1 Marshall’s Rep. 228: 5 Johns. Rep. 71: 11 Johns. Rep. 409, 410.
    An endorsement of a note £‘waiving demand and notice,” dispenses with that exact legal diligence which the rules of the commercial law .require; but it does not authorize gross and palpable negligence; it puts the assign- or on the same footing that he would be if he had delivered it m payment without endorsement.
    Where the bill or note is dishonored, and the holder uses due diligence, not only the parties to the bill or note, but the first liability on the original consideration revives. Chitty, (ed. of 1326) 98, 99, and cases there cited. 7 Taunton’s Rep. 312.
    2. If Johnston would be discharged by the law, independent of the act of 1801, ch. 18, does that act make him responsible? This act, it is contended, is merely cumulative, and gives an additional remedy. By the common law, not suing in several months after the assignment, might not, under the circumstances,- be deemed such negligence as would discharge the assignor; and the statute merely puts it in his power to do away his responsibility in a day or a week after the endorsement. It was made for the benefit of the assignor, and was not intended to abridge any of his common law rights, and if the assignee is guilty of such laches as would operate a discharge of the assignor at common law, the want of a request to sue will not make him responsible. It is the duty of the assignee to use due diligence without any request; the request binds him to extraordinary diligence, or such as would not be required at common law.
    This is an affirmative statute, and does not take away the rule of the common law. Comyn’s Digest, Parliament R. 33.
    Remedies given by statute are cumulative. 1 T. R 103: 7 T. R. 620.
    Rucks, for defendant in error.
    The endorser was bound for this debt in the same way that an ordinary endorser is bound, when a demand has been made and notice given according to law.
    And the only question is, when the holder has done every thing that the law requires him to do, to fix the endorser and put him upon his guard, whether he is compelí-e¿ to commence his suit at any given time, so that he does it within three years. Can the court, when this cause of action is complete in the plaintiff, limit him to a shorter time than that fixed in the statute?
    InJTrimble vs. Thorne, 16 John. 152-3, thefendorser (whose liability was fixed) requested the holder to sue the maker, which he neglected for more than a year, and the maker, afterwards became insolvent-, the endorser claimed his discharge upon this ground, and insisted he stood in the situation of a surety. Ch. J. Spencer said he was answerable upon an independent contract, and it was his duty to take up the bill when dishonored.
    The act of 1801, ch. 18, sec. 3, authorized the endorser in this case, if he feared the maker would fail, or leave the State, to call upon the endorsee to bring suit, which if he had failed to do within thirty days, the endorser would stand discharged.
    Suppose an endorser makes an express promise to pay, (and such promises are always expressly made- or implied in law) it binds for three years.
    This note on Gunter is no payment of Johnston’s precedent debt, unless the plaintiffs agreed to receive it as such, and risk the solvency of Gunter, which they did not, as the endorsement proves. Tobey vs. Barber, 5 John. 68: Johnson-vs. Weed, 9 John. 310, in both which cases receipts had been given in full.
   Catron, Ch. J.

delivered the opinion of the court.

Johnston owed Searcy and Marshall, and assigned them J. Gunter’s note; due .one day after date, and dated the 29th January, 1S30. It was assigned the first of June, 1830, and by the assignment no demand or notice was required. Of course Johnston stood on the foot of an assignor who has been fixed with notice.

Searcy and Marshall did not sue Gunter, the maker, who continued solvent for fifteen months after the note was assigned, and then become unable to pay.

On the 13th of September, 1831, Searcy and Marshall sued Johnston, the endorser; in the previous August Gunter had become insolvent.

The defendant’s counsel requested the circuit court to charge the jury, that by retaining the note for fifteen months and not sueing on it when the drawer was solvent, he thereby made it his own; and if the jury were of opinion that it could have been recovered in that time from the drawer, the defendant was not liable.

The court refused so to charge, but charged that, if thq, defendant requested the plaintiff to commence suit against Gunter, the drawer of the note, and he did not commence within thirty days after that time, that then the endorser would be discharged; but if he did not so request, the defendant would be liable.

The thirty days noticé referred to by the court, we take for granted, must have been given as required by the act of 1801, ch. 18, written of course. Ch. Kent says most truly, in King vs. Baldwin, (2 J. C. C. 557,) “there is nothing more dangerous than to impair the force and effect of solemn contracts in writing, by careless, idle, and perhaps unmeaning conversations.” There is no evidence that any request was made that the defendants sue Gunter.

This brings it to á simple case of delay. The established doctrinéis, “that mere delay in calling on the principal will not discharge the surety.” King vs. Baldwin, 2J. C. C. 559, per Kent: Id John. 134:2 Wheat. 557: 3 Bos. and Pull, 61.

Judgment affirmed.  