Barker v. M'Clure

| Ind. | Nov 7, 1826

Holman, J.

A hill of exceptions shows, that the defendant offered parol evidence in support of his second plea,—that the plaintiff did give further time for payment as pleaded; but the plaintiff objected to the evidence, on the ground that if such further time was given it could he proved by written evidence only; and the Court sustained the objection, and rejected the evidence ⁽¹⁾.

The rejection of this evidence is the most prominentfeature in the case. It is justified by the defendant in error, on the ground that the plea is no bar to the action. The piea cannot be supported. We have seen no case where the single fact of taking a judgment of the principal, and giving a stay of execution, was of itself a release of the surety, either in law or equity. The doctrine relied on from 1 Maddock, 234, is founded on Rees v. Berrington, 2 Ves. Jr. 540. That case is, that if the obligee in a bond takes a note from the principal, and gives further time for payment, without the surety’s knowledge, the surety is released in equity. It is also laid down in the same case, that if the creditor is called upon by the surety to sue for his demand, and does sue and get judgment,but gives a stay of execution without the surety’s knowledge, the surety is released. This is the strongest case in the defendant’s favour that we have seen in the chancery reports; and the present plea falls short of this case in two important particulars. First, this judgment seems to have been confessed without any previous process; so that it does not appear but that, after the expiration of the six months, execution might have issued as soon as it could have issued if there had been no agreement, and the regular course of preparing the suit for trial had been pursued. But the most important defect in the plea is, that it does not appear that the further time of payment was given without the knowledge of Barker. So that, even in equity, where sureties are chiefly recognized and peculiarly favoured, Barker's plea would have availed him nothing ⁽²⁾. But chancery is the proper tribunal to grant relief in those cases, for there the particular circumstances of each case can be set forth. This may sometimes be done in equitable actions at law; but the general principles of common law, relative to writings obligatory, know nothing of sureties.

An act of assembly has provided a method to be pursued by sureties, who are apprehensive of danger by the delay of the creditor, but it is not pretended that Barker has pursued that method. . ..

The plea is, therefore, no bar to the action; and the issue formed upon it is immaterial. If that issue had been found for the defendant, a replcader should have been awarded. The rejection of the evidence was, therefore, no injury to the defendant, inasmuch as the proving of the plea could have legally availed him nothing.

Hall, for the appellant. Tabbs, for the appellee.

The replication to the first plea is informal. It is not a regular nul tielrecord. But the existence of a judgment on record,infavour of M’ Clure against Prince, Sloan, and -Barker is substantially put iu issue by it. This issue has not been determined. The record says, the jury “were well and truly sworn-to try.fyc.” What the clerk intended to include under the “Ac.” is left to ’conjecture; and we hope that it is the last time so important a feature in the record shall he left to conjecture* But taking this as it is, and striking out the “&c.” and inserting the word “issues,” it cannot he contended that the jury were sworn to try anyissries hut those that were proper for a jury to try. The first issue, depending fin matter of record, could riot he supposed to he before the .jury* That was to be determined by the Court, on inspecting therecbrd,if any was produced. The verdict of the jury is a finding for the plaintiff generally, and determined only the second and third issues: and the judgriient of the Court is upon the verdict of the jury, and has no •reference whatever to the first issue. It remains undetermined, :and final judgment should not have been given, until the Court had determined whether there was or was not such a record, as filie defendant had alleged in his first plea.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.

(1) The Court can only look to the 'judgment itself for the terms und'ér which it has confessed. If the agreement to stay execution be hot entered of "record-, but exist merely by parol,'it cannot avail against the’record.

To an action on a'recognizance of bail, the defendant pleaded that, without his prisvity, the plaintiff had agreed to take security from the principal. This plea, on demurrer, was held lo be insufficient at law, on the ground that an agreement by parol cannot be pleaded in bar of an obligation by record. Bulteel v. Jarrold, 8 Pri. 467.

Vide,’also, the cases of Davey v. Brendergrass and The United States v. Howell, referred to in note (2) to Braman v. Howk, Vol. 1. of these Rep. 394.

(2) In an action by the indorsee against the indorser of a bill, it was hold that the defendant was not discharged by the plaintiff’s having taken from the acceptor a cognoVit giving three weeks’ time, which was a period short of that in which judgment could 'have been obtained against him. Jay v. Warren, 1 Carr, & Payne, 532.

A motion was made for an injunction to restrain the defendant, the administrator of Jl,, from proceeding at law against the plaintiff, on a bond given to the intestate by B, and the plaintiff as his surety. The facts on which this motion was founded were, that in June, 1817, A. sued B. on the bond, and in the same month took a cognovit '’from him for the debt, with a stipulation that judgment should not be enteied up, nor execution issued, until the 1st of JLugust following. This proceeding, it was contended, was a giving of time to the principal, which discharged the surety. Per the Vice Chancellor.—“Theprinciple of discharging a surety by the giving of time by the creditor, is a refinement of a Court of equity; and I will not refine upon it. By the arrangement complained of, time was not given, but the remedy was accelerated.” Hulme v. Coles, 2 Simons, 12.

On the 12th of February, pending a suit in which special bail had justified, the defendaut gave a cognovit for the payment of the debt by three instalments; the first pay» able on the 26th of February instant; the others within two or three months afterwards, with a stay of execution until default. The first instalmentnot being paid, the plain'tiff signed judgment on the 27th of the same month of February. Part of the money wasraade on a fi. fa. A ca. sa. was issued for the residue, and returned non est inven» tus. Debt was then brought against the bail on the recognizance; and they moved to set aside the proceedings against them. Thegioundof the motion was, that the bail were discharged by the cognovit. Per Tenterden, C. J.—“We are clearly of opinion, that bail are not discharged by the plaintiff’s taking a cognovit from their principal without their consent or knowledge, unless, by the terms of the cognovit, he is to have a longer time for the payment of the ’debt- and costs, than he would have if the plaintiff had proceeded regularly in the action.” Stevenson v. Roche, 9 Barn. & Cress. 707.

There isa still later case to the same effect; in which Bayley, J. says—“It is a well established rule that a cognovit by the principal, without notice to the bail, does not discharge them, unless time be given to the former beyond that in which the plaintiff would have been entitled to judgment and execution, had he gone to trial in the original cause.” Price v. Edmunds, 10 Barn. & Cress. 578.

A surety, having been applied to by the solicitors of the creditor for payment, told the principal to see the solicitors and do the best he could with themv The principal, accordingly, went to the solicitors and made an arrangement with them for further credit. The surety contended that this arrangement discharged him. But the chancellor held, that, as the arrangement was made under the surety’s authority, he could not be relieved. Tyson v. Cox, 1 Turner, C. C. 395,

It appeared that the holder of a bill, of which payment had been refused, informed the drawer of his intention to take from the acceptor security for -payment by instal" menls, and the drawer answered that the holder might do as he liked, for he was discharged already in consequence of the want of notice; when in fact he was not discharged—idue’notice having been given. Held, that the drawer was,not discharged by the plaintiff’s giving time, under those circumstances, to the acceptor; because his answer was thought to amount to an assent to the plaintiff’s taking the warrant of attorney fiom the acceptor. Clarke v. Devlin, 3 Bos. & Pul. 363.

Vide, also, as to the effect of giving time to the principal without the surety’s consent, Theobald on Prin. and Sur. 127—139.—Note (2) to Braman v. Howk, Vol. 1. of these Rep. 394.