The opinion of the court was delivered, by
Strong, J.It seems to have been taken for granted at the trial that the defendant, Burkholder, was but a surety in the note, and that McCleaf was the principal debtor. No evidence was given to show that such was the fact, nor is there any admission of it on the record, but -it is manifest that it was assumed by both parties, and nothing in the assignments of error, or in the argument in this court, complains of the assumption.
The first and third assignments call in question the instruction given by the court respecting the sufficiency of the notice given to the creditor by the surety. One witness had testified that Mr. Burkholder told the plaintiff in the spring of 1859 “ that he should collect that money or get that money, that he did not consider himself bound for it any longer if there was no effort made.” Subsequently, as the same witness testified, the plaintiff was told that if he did not make an effort to collect the money, Mr. Burkholder would be relieved from it. On cross-examination, the witness said he was not positive whether the defendant said the plaintiff should collect it, or sue, or get it. If the defence rested on this evidence alone, it might have been the duty of the court, as it was requested, to pronounce the notice insufficient to work a discharge of the surety, if he failed to bring suit. Nothing less than positive and unequivocal notice to sue, with an equally unequivocal notice that if suit be not brought the surety will hold himself discharged, will avail. Here the notice was to collect, or get, or make an effort to collect, with the declaration that the surety would not consider himself bound, or would be relieved if no effort was made. An effort to collect is not necessarily a suit, and it may well be doubted whether a mere notice to make an effort amounts to anything. But another witness was called, who testified that in his store, in the spring of 1859, the defendant notified the plaintiff that he wanted him to collect that note, as he would not stand bail any longer. This was unequivocal. Notice to collect is notice to sue, if suit be necessary for collection. We think that with this evidence before the jury, the court could not have declared the notice given insufficiently precise and certain. What the law requires was correctly stated, and what the witness proved was left to be found by the jnry. In this we see no error.
Nor is there substantial reason for complaint of the charge respecting the evidence of the solvency of the principal debtor. The burden was on the plaintiff to 'show that the money could not have been collected, if suit had been brought when requested. The presumption was that it could. And all that the court meant manifestly was that, the affirmative being on him, he must *480establish it with reasonable probability, and that failure of proof operated in favour of the defendant.
It is too late now to call in question the rule that parol notice to sue given to a creditor, accompanied with a declaration that if he does not, the surety giving the notice will be discharged, will work a discharge of the surety, if the notice be not complied with. That the rule opens a door for mischief must be admitted, as also that it sometimes works injustice, but it has been too long established, and adhered to, even since the equity powers of our court were enlarged, to be abolished now by judicial decision. Besides, it is not clear that any statutory enactment confers upon our courts jurisdiction of a bill by a surety to compel his creditor to proceed against the principal debtor.
Judgment affirmed.