Guldin v. Faber , 1 Walk. 435 ( 1870 )

The Supreme Court affirmed the decision of the court below, on March 21, 1870, in the following opinion, per

Agnew, J.

This is a very clear case, and it is difficult to see how it could be suspected that the judge had committed any error. The payment of interest on the bond by the principal down to 1860, and the testimony of the principal himself, repel the presumption of payment arising from lapse of time. The surety is in no better position than the principal; and the same facts which establish the non-payment of the bond as to the principal, affect the surety. White’s Exrs. vs. Commonwealth, 3 Wright, 167.

There is not a single element of equitable estoppel in the case. The mere omission to sue, prompted by no request of the surety, and no insolvency of the principal as the effect of delay, works no estoppel. The settlement of the surety’s estate is no bar, where sufficient assets remain for payment. The executor or administrator is bound by law to take a refunding bond before he distributes the balance on his account, and if he fail he cannot impute the loss to the creditor.

Judgment affirmed.