delivered the opinion of the Court. Independently of the question of usury, it is very clear that this action cannot be maintained. After the failure of Francis Davis, the defendant was entitled to seasonable notice, that the plaintiff looked to him for payment. If this notice had been given, the defendant had ample means of indemnity out of the property assigned to him and Isaac Davis by Francis. This property has been since released for the benefit of other creditors of Francis, of whom the plaintiff is one. It was more than fourteen years after the loan to Francis, before the plaintiff gave any notice to the defendant, that he did not consider his security good,' and it was nearly three years after Francis’s failure. In the mean time the plaintiff received the interest from year to year, and a part of the principal, taking a new note for the balance. These facts show gross negligence on the part of the plaintiff, if he meant to call on the defendant for payment, and are abundantly sufficient in law to discharge the defendant from his conditional liability.
Plaintiff nonsuit.