delivered the opinion of the Court.

The construction of the act, though not obvious at first *185slight, is plain, upon inspection. The first provision is that before the security shall be sued, in any case, the principal shall, in some case, have been pursued to insolvency, (the insolvency to be evidenced by a veturn of nulla bona.)

The second is, if the principal shall have been pursued to insolvency in a given case, then the security, if sued, in that particular casé, shall not be entitled to an imparlance. And the reason arising out of ihe state of facts comports with the literal distinction between the two provisions.— The former is to prevent a security from being harrassed, while his principal may be solvent, and may himself discharge the claim. The latter is to save the creditor from Unnecessary delays, if he should sue the securities after his fclaim has been made unquestionable and precise, by actual recovery had against the principal; and after the principal has been moreover pursued to insolvency.

The motion is therefore granted,