§ 43.002.Suit on Accrued Right of Action

A powerful right, and the consequence of ignoring it is total.

When a right of action accrues on a contract for the payment of money or performance of an act, a surety on the contract may, by written notice, require the obligee to without delay bring a suit on the contract.

The right addresses a real vulnerability. A creditor with a solvent surety has little reason to hurry against the principal, and delay is dangerous for the surety — the principal’s position can deteriorate, assets can disappear, and limitations can run.

This lets the surety force the issue while the principal can still pay.

The notice must be written, and the right arises only once a right of action has accrued. A surety cannot demand suit before the obligation is due.

The consequence is discharge from all liability where the obligee is not under a legal disability and does not either bring suit during the first term of court after receiving the notice — or the second term, if good cause is shown for the delay — or prosecute the suit to judgment and execution.

"All liability" means exactly that. The surety is released entirely, and the creditor is left with the principal alone.

The second limb is the one creditors overlook. Filing suit is not enough; the obligee must prosecute it to judgment and execution. A suit filed and left dormant discharges the surety as surely as no suit at all.

The disability exception protects an obligee who cannot act — a minor or an incapacitated person is not penalised for failing to sue.

Measuring by terms of court dates the provision, and in modern practice the period is read against the court’s own terms.