1923 Present : Bertram C.J. and De Sampayo J.

WIJEWARDENE v. JAYAWARDENE.

289-D. C. Colombo, 45,217.

Surety-Beneficium excussionis-Creditor holds securities given by debtor in trust for surety-Surety discharged if securities become valueless owing to dilatoriness or act of creditor-Creditor can call upon surety to guarantee costs of excussion-Extent to which surety is discharged by misfeasance of creditor.

Where a surety has not renounced the beneficium  excussions. the creditor holds all securities given by the debtor in trust for the surety. The surety is discharged if the securities become valueless, not only by the dilatoriness of the creditor, but also by any act on his part; the act must not be a merely negligent act, but must be a positive act on the part of the creditor.

If a creditor can show that there is no reasonable hope of excussion being successful, he is to ask the surety to guarantee bis costs of excussion.

The extent to which surety is discharged by the misfeasance of the creditor considered.

THE facts are set out in the judgment.

Drieberg, K.C. (with him Hayley, Koch, and Canakeratne), for the defendant, app