(a) Pain v. Packard, 13 Johns. 174. And see People v. Jansen, 7 id. 336. In Herrick v. Borst, 4 Hill (N. Y.), 650, it was held, that although the creditor neglect to prosecute the principal after a request by the surety, this will not discharge the surety, if the principal was then insolvent. And the surety, in order to establish a defence of this kind, must show clearly that at the time the request was made, the debt could have been collected of the principal. Cowen, J., then observed: "The view taken of the question in Huffman v. Hulbert, 13 Wend. 377, the only case in this court where the kind or degree of insolvency on which the surety is to be discharged has been noticed, is not inconsistent with the direction given at the circuit. Mr. Justice Nelson there said, the rule is founded on the assumption that the debt is clearly collectible by suit; and upon this ground only can the rule be defended. Again, he says, there must be something more than an ability to pay at the option of the debtor. Among other lor Kent has questioned the law of this case, and it is said that two of the judges of the court afterwards retracted their opinion. But in 1833, the Supreme Court of the same State seemed to hold the same views. In 1811 this court decided, that a mere delay in calling on the principal will not discharge the surety. (6) Of * this there seems no question; and the objection to discharging him where he requests a collection of the debt and is injured by the refusal, rests upon the right and power of the surety to pay the debt himself whenever he pleases, and then take his own measures against the debtor. It would be, however, unjust to hold him liable on this ground, where he has been injured by the certain fault of the party to whom he makes the guaranty. (c) And from a consideration of the cases, and the reasons reasons he mentions the surety having a remedy of his own by payment and suit, a reason which, as I mentioned, would in other cases deprive the party complaining of all claim; for in no other case that I am aware of can he demand compensation or raise a defence grounded on his own neglect. What principle such a defence should ever have found to stand upon in any court it is difficult to see. It introduces a new term into the creditor's contract. It came into this court without precedent (Pain v. Packard, 13 Johns. 174), was afterwards repudiated even by the Court of Chancery (King v. Baldwin, 2 Johns. Ch. 554), as it always has been both at law and equity in England; but was restored on a tie in the Court of Errors, turned by the casting vote of a layman. King v. Baldwin, 17 Johns. 384. Platt, J., and Yates, J., took that occasion to acknowledge that they had erred in Pain v. Packard, as Senator Van Vechten showed most conclusively that the whole court had done. The decision was obviously erroneous in another respect, as was also shown by that learned senator. It overruled a previous decision of the same court in Le Guen v. Governeur, 1 Johns. Cas. 492, on the question of res judicata; necessarily so, unless it be conceded that the defence belongs exclusively to equity. I do not deny that the error has become inveterate, though it has never been treated with much favor. A dictum was referred to on the argument, in the Manchester Iron Man. Co. v. Sweeting, 10 Wend. 162, that the refusal to sue is tantamount to an agreement not to prosecute the surety. The remark meant, however, no more than that such a neglect as amounts to a defence is like the agreement not to sue in respect to being receivable under the general issue. The judge was speaking to the question whether the defence should not nave been specially pleaded as it was in Pain v. Packard. On the other hand, it has often been said that the defence should not be encouraged, but rather discountenanced; and several decisions will be found to have proceeded on this ground."

1 Pain v. Packard, 13 Johns. 174, supra, was criticised as a clear and unwarranted departure from the common law relating to sureties, in Inkster v. Marshall Bank, 80 Mich. 143. In Newcomb v. Hale, 90 N. T. 326, distinguishing Pain v. Packard, 13 Johns. 174, supra, the neglect of the assignee of a guaranteed bond secured by a mortgage of land to sell the land after notice by the guarantor was held not to discharge the guarantor although the land afterwards depreciated in value.

(6) People v. Jansen, 7 Johns. 336. The authorities all agree upon this point. Hunt v. United States, 1 Gallison, 32; Naylor v. Moody, 3 Blackf. 93; Hunt v. Bridgham, 2 Pick. 581; Winter v. Branch Bank, 23 Ala. 762; Nichols v. McDowell, 14 B. Mon. 7. And even an agreement by the creditor to enlarge the time, unless it is made upon such consideration, or in such form as to be binding upon him, and to estop him from suing the principal, does not discharge the surety. Leavitt v. Savage, 16 Me. 72; Bailey v. Adams, 10 N. H. 162; Joslyn v. Smith, 13 Vt. 353; Harter v. Moore, 5 Blackf. 367; Farmers' Bank v. Raynolds, 13 Ohio, 84. And see note (f), post.

(c) The better authorities agree that if the surety can positively and clearly show an injury to himself by the failure of the creditor to prosecute after request, he is exonerated, pro tanto. Row v. Pul-ver, 1 Cowen, 246; State v. Reynolds, 3 Mo. 95; Manchester Iron Co. v. Sweeting, 10 Wend. 162; Goodman v. Griffin, 3 Stew. (Ala.) 169; Hogaboom v. Herrick, 4 Vt. 131; Johnston v. Thompson, 4 Watts, 446; Wetzel v. Sponsler's Exr's, 18 Penn. St. 460; Lang v. Brevard, 3 Strob. Eq. 59. In Locke v. United States, 3 Mason, 446, it was held, that the neglect of the postmaster-general to sue for balances due by postmasters, within the time prescribed by law, although he thereby is rendered personally chargeable with such balances, on which they rest, we think this rule may be drawn: that a surety is discharged where the creditor, after notice and request, has been guilty of a delay which amounts to negligence, and by this negligence the surety has lost his security or indemnity. (ce) If, however, in that case the creditor should show full knowledge and an equal negligence on the part of the guarantor, or his assent, or that security was given him by the principal debtor, it would be difficult to point out any acknowledged principles which would lead to his discharge. (d) 1 In some of our States statutory provisions give a surety a right to require the creditor to proceed against the principal.