37 Ala. 320 | Ala. | 1861
It is said in, many of the cases, that, to discharge a,surety by extension of the time of payment,. there must not only be a sufficient consideration, but the time of the extension must be definitely and precisely fixed.- Gardner v. Watson, 13 Ill. 347; Parnell v. Price, 3 Rich. L. 121; Wadlington v. Gary, 7 Sm. & M. 522; McGee v. Metcalf, 12 Sm. & M. 535 ; Freeland v. Compton, 30 Miss. 424 ; Miller v. Stein, 12 Penn. St. R. 383, 389 ; Alcock v. Hill, 4 Leigh, 622; 1 Pars. Contr. 173 ; President
It is undoubtedly true, that a mere indulgence, determinable at the will of'the creditor, will not discharge the ■surety ; and it is to indulgences of this character, that the cases just cited must be held to refer.
The principle to be .extracted from the authorities is, that where the creditor; -upon sufficient consideration, and without the consent oí the surety, makes an agreement with’.the principal debtor,.- the effect of which is to postpone the period at which the performance might have been compelled in due course- of law — in .-other words-, if, by a valid agreement, the creditor precludes himself from .pro ceeding against the principal, after the debt is due, according to the terms of the original contract, even ..for a moment, the surety is discharged. And the true ground on which the surety is relieved in such cases, is-the presump-five injury to him, arising from.the fact.that such an arrangement obstructs bis right to pay up/the money as soon as it is due, thereby acquiring the power of immediately pursuing the debtor, and that it otherwise impairs the remedies which the surety may find necessary for his protection. If the creditor has^tied up his hands, so that he could not himself immediateljtypursue the debtor,- then the surety could not do so, either on paying up the debt, or filing his bill quia timet; for-he can only be substituted to such rights as the creditor has .-Norris v. Crummey, 2 Rand. 323, 334-38; Hunter v. Jett, 4 Rand. 104; Chicester v. Mason, 7 Leigh, 244, 253; Bangs v. Strong, 7 Hill, 250 ; S. C., 4 Comstock, 315, 325 ; Comegys v. Booth, 3 Stew. 14 ; Rathbone v. Warren, 10 Johns. 587 ; Addison Cont. 70, and cases cited; 2 Am. Lead. Cas. 176; Draper v. Romeyn, 18 Barb. 169.
In Haden v. Brown, (18 Ala. 641,) it was held, that where there was an agreement, on .sufficient consideration, postponing the day of payment of a bill of exchange, although it may not be shown how long, or to what particular time,
In the «present case, the Time.of payment .fixed-by the note itself was the 1st day of January, 1851. By the original .contract,-to which the surety •• was a party, The creditor «might, have demanded payment-on that day, and, ■ on default -of ¡payment, might have brought suit on the •note- -on the next d^y. - On the facts supposed in the- charge
In Kyle v. Bostick, (supra,) there is a dictum, to the effect that, “ if the money had been in fact paid by the debtor, instead of a- promise to^pay it merely, the case would be different.” — 10 Ala. 595. The distinction here suggested, between. an executed and au executory usurious contract — between the payment of usury in advance, and .-a mere .promise-to pay it in future — as the foundation .for a promise on the part of the creditor to give further time, has been recognized and acted upon in several cases decided by the'Kentucky court of appeals.— Kenningham v. Bedford, 1 B. Mon. 325 ; Pyle v. Clark, 3 ib. 262 ; Scott v. Hall, 6 ib. 285; Patton v. Shanklin, 14 ib. 15. See 2 Am. Lead. Cases, 173, 179 ; Anderson v. Mannon, 7 B. Mon. 218; Duncan v. Reed, 8 ib. 382. While these cases recognize the principle, that a promise to pay usury at a future day, is no consideration for an agreement
Judgment reversed,-and -cause remanded.