The record presents this question: Was the defendant discharged from liability by the forbearance of the plaintiff to sue the maker of the note, which the defendant's testator guaranteed? We may remark in the outset, that the same strict degree of diligence which was required of the guarantee, before and since the war, was not to be exacted of him during the war. In other words, forbearance which would amount to laches now, was from the very nature of things unavoidable then.
With this understanding let us examine the case at bar. The note guarantied did not fall due until the 1st of September, 1860, and on the 11th of that month the plaintiff collected *Page 557 $950, and again in December of the same year, collected $495.
Of course the guaranty implied that the plaintiff should have a reasonable time to collect the debt after it fell due. Ashford v. Robinson, 8 Ired., 114.
But suppose he had brought suit immediately upon the maturity of the note, he could not have had execution of his judgment, even in the county court, before the passage of the Act of 1860-`61, chapter 16, section 8, which stayed all executions and required the sheriff to return them unsatisfied. And let it be borne in mind, that from that time until the close of the war, the courts were practically closed, against the collection of debts, by the various Acts of the General Assembly, passed for that purpose. Perhaps the plaintiff could have collected his debt in Confederate money. Indeed, he did receive $700 of that currency in January, 1864, but we know from the history of the times, that he could not have collected his debt in good money. No such negligence has been shown as would discharge the defendant up to the close of the war, when S.L. Howell became insolvent by the loss of his slaves.
From that time forward the defendant cannot complain of the forbearance of the plaintiff, for he was not required to do a vain thing, and sue an insolvent man, and a guarantor is not discharged simply by the negligence of the other party, but he must also show that he has sustained loss by such negligence. Ashford v. Robinson, supra; Farrow v. Respass, 11 Ired., 174. How could it have helped the defendant for the plaintiff to have sued S.L. Howell, after his insolvency? The forbearance of the plaintiff to sue for some time after the insolvency of S.L. Howell was, in fact, an indulgence to the defendant.
Without invoking the aid of the evidence objected to, enough appears upon the record to warrant the conclusion that W.A. Howell had full notice of the indulgence extended by the plaintiff to his brother, S.L. Howell, and it does not appear that he ever endeavored to quicken the diligence of the plaintiff. We attach no importance to the fact that the plaintiff *Page 558 placed the note in the hands of an attorney for collection, and afterward directed him not to sue, which fact, by the way, is objected to on the ground that it was brought to light by a violation of that confidence between attorney and client, which the law protects, for admitting it in its full force, does not affect our conclusion. Doubtless the plaintiff was casting about in his own mind the chances of collecting his debt, and the fact that he determined to sue to-day cannot bind him to remain of the same opinion to-morrow, even in the face of stay laws, Confederate money and other obstacles which met him at the threshold of the Temple of Justice.
The judgment of the Superior Court is reversed, and judgment may be entered here for the plaintiff for the amount agreed upon by the parties in case the Court should be of opinion with the plaintiff.
PER CURIAM. Judgment reversed, and judgment for the plaintiff.