James N. Pryor Dozier , defendant in error. Supreme Court of the State of Georgia. Debt, in Muscogee Superior Court. Tried before Judge Iverson , May Term, On the back of the lease was a bond executed by Garland B. Terry and Sterling Terry , John M. Bethune and Joseph D. Suit was commenced by Pryor Dozier against James N.
Bethune , as administrator upon the estate of Joseph D. Bethune , deceased, upon the bond above described. The declaration set out the bond and also the lease in full. The breach complained of was that the said Terrys "did not faithfully comply with with their said agreement and did not pay the said rents as they regularly fell due.
Defendant 's counsel demurred to this declaration, on the ground that the first count alleged no demand, and that the second count showed that the defendant 's intestate, being merely a surety, was released by the failure of plaintiff to comply with his contract. The Court overruled the demurrer , and this is the first ground of error assigned. Among other testimony introduced on the trial, defendant proved that more than three months before this suit was commenced, on Dozier's demanding payment from him, he replied he could do nothing until judgment was obtained against the Terrys.
The witnesses did not understand defendant to demand of plaintiff to sue the Terry a, but rather a request. Counsel for defendant requested the Court to charge the Jury "that if the principals in the bond sued on accepted a less quantity of land than was specified in the contract, without the knowledge and assent of the surety, then the surety was discharged. Counsel for defendant requested the Court to charge farther "that if the surety or his representative had requested the plain-tiff to sue the principals, and he had failed to do so within three months, the surety or his estate were discharged;" which charge the Court refused to give, but on the contrary instructed the Jury, " That a mere request by the surety or his representative to a creditor to sue the principal was not sufficient to discharge the surety, it suit was not commenced, inasmuch as a request might be merely asking for something as matter of favor and not as matter of right; that if the Jury believe that the request proved was understood by the parties at the time, as a demand or requirement by the administrator of Bethune upon Dozier, to proceed to collect the debt from the principals, in such case the surety was discharged, unless suit is brought within the time.
But it must be a positive demand to sue, and so understood by the parties at the time, in order to discharge the surety. If it appeared that it was a request of a favor, and so considered by the parties at the time, then the surety was not discharged by reason of a failure to sue in three months. Which charge as given, and refused to charge, are also assigned as error. Johnson, represented by H. Holt , for plaintiff in error.
