The opinion of the court was delivered,
by
Lowrie, C. J.By the law of the written contract, all the makers of a promissory note are equally bound to the payee, and he is under no duty to either of them. It is only by way of equity that he can be held to any duty to either of them. This happens when it clearly appears that one of them is surety for the others, and warns the holder to proceed to collect the claim without delay or he will hold himself discharged. This warning does in equity raise a duty on the part of the holder to the surety, and if it be neglected to the injury of the surety he will be discharged. The proof of this warning is therefore the preliminary evidence that is to raise the duty and introduce the evidence of its violation.
If the warning be not clearly proved, all further evidence is good for nothing, and ought to be rejected.
It seems to us that the warning is not made out here. The witness very evidently had not a dear idea whether the warning given applied to this note or to those held by Johnson; and surely warning, or the evidence of it, that requires a long and tedious analysis to show its application to the note sued on, cannot be regarded in equity as sufficient. It, and the .evidence of it, ought to .be so clear and distinct, that its meaning will strike the mind of the hearer at once and without argument. This does not at all do so; and argument in its favour only makes its sufficiency less clear. The court was right in declaring that this preliminary proof was not made out. We see no other question in the cause that requires discussion by us, and no error to the injury of the defendant below.
Judgment affirmed.