Wilds v. Attix

Citations

• 4 Del. Ch. 253

Syllabus

<p>Under the law of suretyship, the creditor is not bound to active diligence against the principal, and he does not lose his remedy against the surety even by refusing upon request of the lalter to pursue the principal though the principal afterwards becomes insolvent.</p> <p>There is no general equity of a surety to throw upon the creditor the burden of enforcing performance of the contract by the principal or to compel the creditor to undertake a law suit. It is only on special grounds that equity will interfere with the creditor’s election between his .double remedy against the principal and surety, as when the principal becomes bankrupt the creditor may be compelled to prove his debt or where the creditor holds a collateral security which is available to him but which he could not make so to the surety by assignment, he may be compelled first to resort to that security.</p> <p>In order to make the promise of the creditor to the, surety to proceed against the principal debtor, operate as a constructive fraud, it must appear that the surety was actually induced by it to forego some advantage or remedy which otherwise he would have taken.</p> <p>The doctrine of equitable estoppel proceeds upon the ground of adjusting between two innocent parties a loss which one of them must bear, upon the equitable consideration that it should fall upon him through whose act, . admission or silence, when it was his duty to speak, it has resulted.</p>