40 Ky. 283 | Ky. Ct. App. | 1841
delivered the Opinion of the Court.
The principal question presented in this case, and that upon which a reversal or affirmance of the decree ex
Could the creditor then, in this case, notwithstanding the verbal arrangement supposed in the question above stated, have resorted to the immediate legal coercion of the debt whenever after it became due the surety should have required him to do so? We are decidedly of opinion that he could, and that the arrangement or the assent to the requested indulgence would not only not have constituted any legal bar to such immediate coercion (which we do not decide to be essential,) but that it would not, either in equity or in good conscience, present any obstacle to an immediate call and suit for the debt, at the requisition of the surety, and when the failure to sue might
The consequence of this view is, that the right of the surety not being actually impaired to any extent by the arrangement or assent supposed, he is not released upon the ground of the equitable principle which has been assumed as deducible from the cases; and indeed, it being admitted on all sides and in all the cases, that mere delay to coerce the debt, without any words expressing an intention or assent to give delay for a particular period, would not release the surety; it seems obvious that to decide that the mere verbal expression of such intention or assent, without consideration or new security of any kind, would be effectual to discharge the surety and perhaps with the loss of the debt, would be giving a consequence to the very slight shadowy distinction which might be drawn between the cases, wholly disproportioned to any actual and substantial difference between them. All the cases above cited, except the two last, we regard as strong and almost direct authorities in favor of the conclusion to which we have come in this particular case, and the two last cases, when properly considered, do not, as we think, essentially contradict it. It is only deemed necessary to add, in this case, that in our opinion the proviso to the 8th section of the act of February 2, 1837, (Ness. Acts p. 106,) does not apply to this case, but only-to cases in which the jurisdiction of the Court is founded upon the right of subjecting property or debts, &c. of a non-resident, and the jurisdiction to decree in this case, is unaffected by the said proviso.
Wherefore, the decree is reversed and the cause remanded with directions to render a decree in favor of. the complainants for the amount of the demand set up in the bill, with interest, &c.