#### ELISHA GIBBS v. J. R. WILLIAMS.

■ (Construction of a written instrument upon its peculiar phraseology and concomitant circumstances.)

Where one agreed to become surety for another, on condition that the creditor should bring suit within a reasonable time, and lie did so shortly after the expiration of the credit, but was nonsuited on the ground of not appearing by counsel or otherwise, it was held that another suit brought immediately after such nonsuit was sustainable.

Tins was an action of assumpsit, tried before French, J., at the last Spring Term of Davie Superior Court.

The suit was brought in the County Court against the defendant and one "William F. Miller, and the plaintiff failing to recover against Williams, appealed to the Superior Court, as to him. The declaration was in two counts. 1st, on the following written agreement executed by the defendant:

“Mr. Elisha Gibbs.' I will stand as security for William F. Miller for one hundred and twenty-five dollars until the 25th of this instant, and if he fails to make payment by that time, and you fail in commencing suit against both of us at the time above specified, I will then be released as security. This January 7th, 1360. (Signed,) J. E. Williams.”

2nd Count, for five beeves, delivered to W. F. Miller by the plaintiff.

The plaintiff proved, that during the second week of January, 1860, Yfilliam F. Miller delivered to him the above written agreement of J. E, Williams, upon which plaintiff delivered to Miller five beeves, of the value of $125.

It was further proved, that the plaintiff sued out a writ against the defendantand W. F. Miller, which was duly executed on them, and returned to March Term, 1860, of Davie County Court, the same being the first court held in said county after the 25th of January, 1860, upon which the plaintiff was nonsuited, for the reason, that he failed to employ *392counsel at that Court. This writ was issued after the 25th of January.

The writ, in the present suit, was 5th of May, 1860.

The defendant’s counsel resisted plaintiff’s right to recover, on the ground, that he had failed to bring suit on the 25th of January, 1860, and the Court intimating- an opinion that the objection was valid, the plaintiff took a nonsuit and appealed.

T. J. Wilson, for the plaintiff.

Olement, for the defendant.

Battle, J.

The decision of the case depends upon the construction of the instrument of writing, set forth in the bill of exceptions. The circumstances under which that instrument was given by the defendant, Williams, must be considered, in order to arrive at a proper understanding of its meaning. It was presented to the plaintiff by the defendant, Miller, at the time when the latter was purchasing from the plaintiff a number of beef cattle. Of course, then, it must have been intended as a security to the plaintiff in the credit which he was giving to Miller; for if the purchase were for cash, the instrument was entirely unnecessary. In the light of a security, why was a time fixed for its termination ? Certainly, because the credit was to expire at that time, for, 'in no other way can we affix any sensible meaning to it. Understood in tliat sense, the plaintiff could not sue Miller before, nor on that day ; neither could he,'according to the terms of the agrceiheut, sue the other party until he was prepared to sue both. When was he to sue them ? The answer is within a reasonable time after the expiration of the credit; and a writ, returnable to the next term of the court, in which process was duly executed after that time, must, we think, be deemed a reasonable time within the contemplation of the parties.

But it is said that such suit was of no avail, because the plaintiff, by his neglect, in not employing counsel, was non-suited. That is true, but the nonsuit was on the motion of *393the defendants, and they cannot now be heard to object to what was done at their instance. This latter objection does not seem to have been relied upon by the defendant, Williams, in the Court below, and we only notice it, because, from the facts stated, it has been presented, and has been urged in the argument before us.

Thinking that his Honor erred in the construction, which he put upon the written instrument, we must reverse the judgment of nonsuit, and order a venire de novo.

Per Curiam,

Judgment reversed.