
    *L. Starling, Executor of J. A. McDowell, v. Joel Buttles.
    Where surety gives notice to the creditor to sue, it is not a compliance with the statute to sue the surety alone. •
    This was an action upon a promissory note, and was adjourned from Franklin county.
    The declaration was upon a promissory note, executed by Eli Adams, J. B. Gardiner, and Joel Buttles; and it appeared on the face of the note that Adams and Gardiner were principals, and Buttles a security.
    The defendant pleaded that he was a security only, and the other two parties principals; that before the commencement of the suit against himself, he gave notice, in writing, to the payee of the note, and requested him to commence suit against the principals, agreeably to the provisions of the act for the relief of sureties and bail in certain eases, but that the payee wholly neglected to commence such suit.
    To this plea the plaintiff replied, that within a reasonable time after receiving such written notice, the plaintiff commenced the present suit against the defendant, and has proceeded with due diligence. To this replication the defendant demurred.
    Wilcox, for the defendant, and in support of the demurrer:
    Insisted that the replication was bad. The statute provides that if, after the note becomes due, the principal shall be in failing circumstances, the surety may give the holder notice to sue the principal. That notice the holder disregards at his peril. It is no relief to the surety to be sued himself, and the commencement of such a suit can not be a compliance with the law. He cited, as in point, 13 Johns. 174; 15 Johns. 433. ui
    There was no argument on the other side.
   By the Court :

The act for the relief of sureties and bail, in certain cases, provides that in cases where the principal debtor is likely to become insolvent, or remove from the county or state, without discharging the debt, the security may give the ^holder of the obligation notice, in writing, forthwith to put the obligation in suit. And if the holder do not, in a reasonable time after such notice, commence a suit and proceed diligently to judgment and execu-. tion, he shall forfeit his right to demand the money of the surety.

The object of this act is plainly to enable sureties to compel a creditor, where his debt is due, to pursue the principal debtor by a suit, or exonerate the surety. It was intended to relieve sureties where the creditor felt safe in the responsibility of the surety, and took no steps to collect his debt, and it contemplates extending this relief, in a different form from that of compelling the surety to pay the debt himself, and thus become the creditor, and bring suit. If, upon receiving the notice, it would be sufficient to sue the surety alone, the object of the law would be evaded; indeed, its provisions would be converted into insulting mockery. Upon receiving the notice, the creditor is bound to bring suit against all the parties, and pursue them all to judgment. He need not sue the principal separately. But a separate suit against the surety, without any suit against the principal, is not a compliance with either the letter or spirit of the law.

The demurrer is well taken, and must be sustained. 
      
       Note by Editor. — Notice to sue must be in writing, vii., part 1, 72. -In plea by surety, that the principal extended time, he must aver that he did not assent thereto, v. 207. Defense that time was'given available at law, ib.; vi. 18; xi. 299. But not when suit is against principal and surety, x. 543; xi. 299. What acts of principal will discharge security, see v. 273; xiii. 84; xiv. 348; xviii. 6; and xviii. 54, where it is decided that bills of exchange are included in the meaning of the “ act for the relief of sureties and bail."
     