Eaton v. Waite , 1877 Me. LEXIS 135 ( 1877 )

Dickerson, J.

The request of a surety, to the creditor, to sue the principal, does not, in general, secure his release, at common law, if such suit is not brought. That effect, for such sole cause, follows only in cases where the statute makes provision for notice. There being no statute upon this subject in this state, the rights of the parties must be determined according to the rule of the common law. Leavitt v. Savage, 16 Maine, 72, 73. Page v. Webster, 15 Maine, 249, 256. Frye v. Barker, 4 Pick. 382. Halsted v. Brown, 17 Ind. 202.

We do not perceive sufficient ground to relieve the surety from liability, on the facts testified to by him. No bond was given or tendered by him to the principal to save him harmless for costs that might arise on compliance with the surety’s request. At most, there was the mere verbal promise of the surety to furnish such bond. We do not think that this was sufficient to require the plaintiff to proceed against the principal at the peril of discharging the defendant. The promise and liability of the surety are co-extensive with those of the principal. The plaintiff’s remedy attaches alike to both principal and surety. No mere verbal request, or offer to give a bond of indemnity, for the plaintiff to sue the principal, unaccompanied by the tender of such bond, is sufficient to discharge the defendant from his suretyship.

While it is undoubtedly true that additional time of payment given to the principal by the creditor, under a valid agreement, without the consent of the surety, discharges the surety; we do not think that the payment of extra interest by the principal to the creditor, followed by mere forbearance to sue, is, of itself, sufficient evidence to show that such payment was the consideration for the forbearance. The extra interest paid may, or may not, have been the consideration for the forbearance. The burden is upon the defendant to show that it was. Having failed to do that, he is not entitled to prevail upon this branch of the defense.

A default to be entered for the amount due on the notes less seventy-two dollars and foui'teen cents.

Barrows, J.

There is no evidence of any contract for forbear-anee between the payee and the principal promisor. The payee might have paid the note and sued the principal at any time. I concur.

Appleton, C. J., Walton, Virgin and Peters, JJ., concurred.