Smith v. Clopton

Citations

• 48 Miss. 66

Syllabus

<p>1. Estoppel — bill single under seal. — A party bound as principal upon the face of a promissory note under seal, is not thereby estopped to plead that he signed the instrument as surety for his co-obligor, the statutes of this state having so far modified the common rule applicable to sealed instruments, as to let in the proof of the fact.</p> <p>2. Statutes — construction—principal and surety. — Article 1, chapter xlvi, Bev. Code, 1857, includes all the modes and instruments by which suretyship may ariso or be created, whether bound by seal or simple contract.</p> <p>3. Principal and surety — discharge.—The failure of a creditor to commence and prosecute legal proceeding against his principal debtor aSter notice given him by the surety, discharges the surety, and the creditor is barred of all recovery against him.</p> <p>4. Principal and surety — discharge.—The bar provided for by statute against a creditor failing to commence and prosecute legal proceeding against his principal debtor, after notice given by the surety, is a legal discharge of the surety quite as effectual in a court of law as in equity.</p> <p>5. Principal and surety — defenses—equitable and legal. — It is the suggestion of enlightened reason, that, whatever defenses may be established and availed of by a surety in a court of equity against the collection of a debt, may be averred and proved in a court of law.</p> <p>6. Principal and surety — notice to sue. — A plea by a surety that, after maturity of a bill single upon which he was really, thought not nominally, bound as surety, and while the principal was good and responsible, he verbally notified the creditor to collect by law at once, or he, the surety, would be no longer bound, and that the creditor accepted the notification and promised compliance but failed, is a good defense, under the statute, to a suit subsequently brought against the surety.</p> <p>7. Principal and surety — payment.—The taking by a creditor from the principal debtor