106 HOFFMAN v. JOHNSON.

holder of such an instrument is held strictly bound to use due dili-
gence; or, on his default the surety or endorser is discharged.
Cases of this kind can have little bearing on that now under con-
sideration*

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 nonper-
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.(e)

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 satisfaction
of the demand. And the creditor, by accepting those means,
tacitly undertakes to use due diligence in endeavouring 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 becomes the
creditor, A the principal debtor, and B stands as the surety of A.
But if it should turn out, that there is 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.

(e) Coop. Just. Inst. 613.