98 HOFFMAN v. JOHNSON.—1 BLAND.

* holder of such an instrument in held strictly bound to use
106 due diligence; or, on his default the surety or eudorser is
discharged. Cases of this kind can have little bearing on that
now under consideration.

In the case of a surety for the performance of services; as of
a penal bond, the condition of which is, that one of the obligors
shall faithfully perform certain work, or discharge the duties of a
certain station, as a clerk, or the like; no unreasonable tardiness,
on the part of the obligee, will be tolerated. In such cases, one
of the obligors only is to perform the service, and if he neglects
his duty, the employer alone can know it, and he alone can give
notice of the neglect. Hence it is evident, that any unreasonable
delay in making a claim, or a long acquiescence in the non-per-
formance of the services, must be considered as a waiver of the
right to call for compensation; and as a tacit discharge of the
surety, whose principal has been thus unreasonably indulged to
his prejudice. Therefore, in this class of cases, the obligee must
use due diligence in bringing suit after the cause of action has
accrued, or the surety will be discharged. 6'oop. Just. Inst. 613.
But the case now under consideration, belongs to a different
class. It is one of those where the debtor places in the hands, and
under the control of his creditor, the means of reaching funds,
which are represented as available and adequate to the satisfac-
tion of the demand. And the creditor, by accepting those means,
tacitly undertakes to use due diligence in endeavoring to make
the funds available; or to furnish evidence that they do not exist,
by shewing that there was nothing in the hands of the alleged
holder of them; or, that he was insolvent; and also, that, after
having made every proper effort to come at such funds, he will
return or reassign the bond, note, or judgment, which had been
placed in his hands for that purpose. An example of this class of
cases may be presented in this form: A is indebted to B, and B
is indebted to C. And it is agreed, that B shall assign his claim
upon A to C, which, when paid, is to go in discharge of the debt
due from B to C; consequently, by this agreement, C become the
creditor, A the principal debtor, and B stands as the surety of A.
But if it should turn out, that there in nothing due from A to B;
or that A is insolvent, then the consideration of the agreement
fails, and B again becomes a principal debtor to C.

*In cases of this sort, the exertion of every reasonable
107 and proper degree of diligence is within the express terms
and meaning of the contract. And, after all such proper efforts
have been made, before payment can be enforced from the surety,
equity and justice require, that the bonds, notes, or judgments,
or all the securities he had placed in the hands of his creditor, or
enabled him to procure, should be returned, or reassigned, so as to
put it in the power of the debtor or surety to obtain reimburse-