
    Elijah Crane versus Luther Newell et al
    
    In an action by a sheriff against the sureties in a bond, conditioned that the principal should faithfully perform the duties of a deputy sheriff and should save the plaintiff harmless from all suits, costs, expenses &c., occasioned by the misconduct of such deputy, it is not a good plea, that before the breach complained of they gave notice to the plaintiff of the deputy's unfitness for office and requested his removal.
    Debt against the principal and sureties in a bond given to the plaintiff as sheriff of this county, conditioned that Newell should faithfully perform the duties of a deputy sheriff under the plaintiff, and should save, keep harmless and m* demnify the plaintiff from all actions, suits, troubles, costs, charges, damages and expenses whatsoever, which he should sustain by reason of malfeasance, misfeasance or nonfeasance of Newell in his office of deputy sheriff.
    John Doggett and John Lemist, two of the sureties, pleaded that the plaintiff ought not to maintain his action against them and the .other defendants, because they said that New-ell had faithfully performed the duties of his office, and had saved the plaintiff harmless, from the date of the bond until the 1st of August, 1822; that Newell having become intemperate, negligent, and unfit for the office of deputy sheriff, they, Doggett and Lemist, on the 23d of June preceding, informed the plaintiff of it and of their unwillingness longer to be accountable for Newell’s conduct as a deputy sheriff, and requested him to remove Newell from office or otherwise discharge them from future liability on the bond ; that the plaintiff promised them that' he would remove Newell in a reasonable time ; that there had been a reasonable time for such removal before the 1st of August above mentioned ; that they had never since consented to be accountable for Newell’s conduct as a deputy sheriff; and that he had ever since continued to be totally unfit for that office, of which the plaintiff had been well knowing.
    The plaintiff, protesting that no part of the statement in the plea was true, replied by setting forth a judgment recovered against himself for the default of Newell, which the plaintiff had satisfied, and by traversing the allegation that he had promised to remove Newell.
    Doggett and Lemist rejoined, that the plaintiff did promise as they had alleged in their plea ; and upon this, issue was joined ; and the jury found that the plaintiff did not so promise.
    And now, upon a motion for a repleader, both parties admitted that the issue tried was immaterial, and the question was argued, whether the plea contained matter sufficient to bar the action.
    S. Hubbard and Leland, for the defendants,
    contended that the plea was sufficient. No term of time being mentioned in the bond, during which the sureties should continue liable, there was an implied understanding that the sheriff should not neglect his duty. The particular unfitness of Newell to continue in the office of deputy sheriff was made known to the plaintiff, with a request that he might be removed, and it was incumbent on the plaintiff to remove him accordingly. An omission of a duty on the part, of the obligee, to the injury of a surety, discharges the surety. King v. Baldwin, 17 Johns. R. 384 ; Pain v. Packard, 13 Johns. R. 174. The sureties could not take up this bond, like a surety upon a promissory note, and then proceed against the principal for their indemnification.
    
      Metcalf for the plaintiff.
    The sheriff is the proper judge of his deputy’s fitness for office, and he is not bound to remove him because his sureties manifest uneasiness under their liability. Unumquodque dissolvitur eo ligamine quo ligatura, is a leading maxim on this subject, and the cases are very numerous in which obligors have struggled in vain to release themselves on easier terms. Sellers v. Bickford, 8 Taunt. 31 ; Braddick v. Thompson, 8 East, 344 ; Thompson v. Brown, 7 Taunt. 656 ; Cordwent v. Hunt, 8 Taunt. 596 , Davey v. Prendergrass, 5 Barn. & Ald. 187. The case of Pain v. Packard, 13 Johns. R. 174, is denied in King v. Baldwin, 2 Johns. Ch. R. 563, and 17 Johns. R. 396, 397.
   Parker C. J.,

in giving the opinion of the Court, said in substance, that if the facts stated in the plea were a sufficient answer to the action, the Court would order a repleader ; but that the Court were satisfied that they did not constitute a defence. This is an action on the bond. There are no authorities to establish the ground of defence set up, though there are some analogous cases in New York inclining that way, particularly the case of Pain v. Packard, 13 Johns. R. 174, where a surety on a promissory note having requested the holder to proceed immediately against the principal, who was then solvent and who afterwards became insolvent, was exonerated in consequence of the holder’s neglecting to comply with the request. But this case is questioned by Mr. Chancellor Kent, and two of the judges afterwards re tracted their opinion, and the decision was sanctioned in King v. Baldwin, 17 Johns. R. 403, by the turning vote of the lieutenant governor, against the opinion of a majority of the judges present; so that the question is hardly settled in New York. ***56In England the law is clear, that a bond is not to be discharged, except by something of as high a nature. A surety is not understood to retain such a right as the defendants contend for. It should seem proper, however, that in the case of a deputy .sheriff, who may continue many years in office, the surety should have an opportunity, where the deputy misbehaves himself, of getting released from liability for his subsequent misconduct. But it is for the legislature to make such provision, in case they should deem it expedient. There is one mode now which a surety might pursue, and that is, making an application to the governor, who would discharge the sheriff in case he improperly refused to remove a deputy. But there is no authority for the surety to judge of the fitness of such removal.

In the case before us the bond is adjudged to be forfeited, and there must be a hearing in chancery as to the damages. 
      
       In Warner v. Beardsley, 8 Wendell, 199, Walworth, Chancellor, refused to carry the principles of the decision in King v. Baldwin, beyond cases coming directly within it. Thus far, however, he considered it as' binding authority.
      The following authorities support the text in opposition to the decision in King v. Baldwin. Manning v. Shotwell, 2 Southard, 585 ; Frye v. Barker, 4 Pick. 382 ; Davis v. Huggins, 3 N. Hamp. R. 231 ; Townsend v. Riddle, 2 N. Hamp. R. 451 ; Craughton v. Duval, 3 Call, 69 ; Moore v. Broussard, 20 Martin’s (Louis.) R. 277 ; Pickett v. Land, 2 Bailey, 608 ; Bellows v. Lovell, 5 Pick. 307. In this last case, however, it seems to be intimated by the Court, that if the surety should accompany his request to sue, with an offer of indemnity against the costs and charges of suit, he would be discharged in case the creditor still neglected to sue. See Beardsley v. Warner, 6 Wendell, 610.
      A different doctrine has been adopted in Pennsylvania from that maintained in the foregoing authorities, on the ground, that there is no court of chancery in that State ; and it is there held, that if the creditor, after being requested to bring suit against the principal debtor on a bond, refuse to do so, the surety is discharged, provided he declares that he shall consider himself discharged unless his request be complied with. Dekuff v. Turbett, 3 Yeates, 157 ; Cope v. Smith, 8 Serg. & Rawle, 110 ; Gardner v. Ferree, 15 ibid. 28 ; Erie Bank v. Gibson, 1 Watts, 143. If the principal becomes insolvent after the creditor has neglected to sue on the request of the surety, the surety is held to be discharged, in Treasurers v. Johnson, 4 M‘Cord, 458 ; Pain v. Packard, 13 Johns. R. 174. See also Warner v. Beardsley, 8 Wendell, 194 ; S. C. 6 Wendell, 610 ; Kennebec Bank v. Tuckerman, 5 Greenl. 130. But see Bellows v. Lovell, 5 Pick. 311.
      
        In respect to the relief afforded a surety in chancery, when he stands in danger from the delay of the creditor to sue the principal, see Hayes v. Ward, 4 Johns. Ch. R. 131 ; King v. Baldwin, 2 ibid. 559 ; Taylor v. Heriot, 4 Desaus. 227 ; Bedows v. Lovell, 5 Pick. 310, 311 ; Stump v. Rogers, 1 Ohio R. 533.
     
      
      
         See Andrus v. Bealls, 9 Cowen, 693. This case bears a strong resemblance to the one in the text, and is decided in the same way.
     