13 Gratt. 511 | Va. | 1856
A plaintiff who comes into a court of .equity asking the new trial of an issue at law, on the ground of having discovered evidence after the trial, must show that he has not been guilty of laches in making the discovery ;.that the evidence is material to the issue; that it is not merely cumulative, or in addition to other evidence of like import heard at the trial. In the view I take of this part of the case, it is not necessary to consider any question other than the one whether the newly discovered evidence is cumulative, or whether it be such that no evidence of like substance was heard by the jury which tried the case. It was incumbent on the plaintiff to, make out his case in all its material parts; he should have shown what newly discovered evidence he proposed to offer on a new trial; also what evidence had been offered
In the argument here, the counsel on both sides relied upon the record in the suit at law, of which the evidence at the trial is made a part. I do not perceive that this record has been made part of the record in the chancery cause (now before us) whilst in the Circuit court; and it cannot therefore be properly looked into. If it were otherwise, I would say that proof of precisely the same import as that now proposed to be offered, was heard on the trial at law; and that the
The appellee seeks relief upon the further ground that his principal McCue in his lifetime had sold to Harnsbarger, the appellant’s intestate, a tract of land at the price of three thousand dollars, to be applied as a credit to the bond on which the judgment was obtained ; and that credit was not given for this price, but only for two thousand five hundred and twenty dollars, part thereof. Without stopping to comment upon the defects of the ajipellee’s proof of the fact alleged, or on the probable application of a portion of the price to another debt from McCue to Harnsbarger, it is enough to say that this is a defense which, if well founded, might have been made on the trial at law, and that no reason is shown for the failure to make it there.
The appellee seeks relief upon the further ground that the contract by which McCue sold to Harnsbarger the tract of land already mentioned, was extortionate and unconscionable, and wrung from the fear and distress of the debtor by his grasping creditor. If this were all true as alleged, it is impossible to perceive how the appellee can found thereon any-claim to relief in this case. At a proper time and between proper parties it might have been a question fit to be investigated whether the contract of sale should be rescinded ; yet this would afford no relief to the appellee whose obligation existed before the sale; he could not claim to have a new and different contract established, and credit for a larger amount placed on the bond.
The appellee seeks relief upon the further ground that by the contract for sale of land above mentioned, the sureties Kinney and Sowers were to be discharged from all liability; and further that Harnsbarger should indulge McCue for the balance of the debt as long as" Harnsbarger should live. These grounds for relief are
The several grounds of relief above mentioned were not passed upon by the Circuit court. The decree of that court, it would seem, is founded upon the allegation in the amended bill, that Harnsbarger, on two occasions, without the consent of the surety, did agree to receive from McCue the principal a sum of money as interest on the bond in advance of the time at which the interest was payable; and that the interest on these several occasions was so prepaid and endorsed on the bond. The endorsements are found upon the bond giving credit for money paid for interest which was thereafter to accrue. The evidence of a witness proves that the money above mentioned was paid by him as the agent of McCue; that Harnsbarger did not require such prepayment, and that there was no ex
Although it is not expressly stated in the decree of the Circuit court upon what ground the relief was granted, yet there is enough to show that it was upon the ground last stated.
It must be conceded that the doctrine of equitable releases to sureties is too firmly settled in Virginia by the decisions of this court to be again drawn in question ; that an agreement for valuable consideration between a creditor and a principal debtor, whereby the creditor, without the consent of the surety, contracts to forbear for a definite time the collection of his debt, is, in equity, a release of the surety, cannot now be doubted. Yet when the attempt is made to bring a case of different facts within the principle of those decisions, we may well look into the principle itself to see whether its intrinsic justice and conformity with the general principles of equity require that it should be extended to a new class of cases. The decisions heretofore made have all proceeded upon the theory that by the contract for forbearance the surety would be subjected to liability for a longer time than that prescribed in his original obligation;' that his right of substitution to the rights and remedies of the creditor would be impaired in case he paid the debt; and especially because the surety is thereby prevented from resorting to ■& bill quia timet, or a notice to the
Courts of equity, however, do interfere in any case in which the creditor and principal debtor, without the assent of the surety, make a contract for a consideration, however small, to delay the collection of the debt for a time, however short, and as it seems, relieve the surety; and this without enquiring whether the obligation of the surety has been varied in any appreciable degree, or whether his remedies, for all practical purposes, have remained unimpaired. This doctrine is founded upon the hypothesis that the principal debtor might enjoin a suit brought in violation of the contract for indulgence, and thus specifically enforce that contract. If there be no surety, a contract for indulgence would be enforced in equity only in a case in which the general principles of the court require that such relief should be given; that is, in case adequate relief may not be had at law: yet, if a surety be bound, then the debtor is held to have the right, in all cases, to enjoin until the delay contracted for has been enjoyed; and the surety is thereby held to be discharged because of the change in his obligation, and the suspension of remedies whereby he might have sought exoneration. See 2 Bob. Prac. (old ed.) 134, and the cases there cited.
The case before us differs from all others decided in
In the argument here the counsel cited many cases decided in different courts on the question whether the isolated fact of prepayment of interest on a debt already due would of itself justify the implication of a contract for indulgence, whereby sureties would be entitled to a release in equity. Some of these cases are in conflict; others of them were decided upon the peculiar laws of the states in which they were made, and could afford no aid in the decision of a case in this state. Not regarding this as a case of that kind, I deem it unnecessary to consider the question. It is the duty of the court to declare the law upon the case as it stands, and not as it would be if some of the facts did not appear therein. It will be the time to decide this much controverted question when it shall arise in some case depending for its decision upon the solution thereof.
I am of opinion to reverse the decree, to dissolve the injunction, and dismiss the bill.
The other judges concurred in the result.
Decree reversed.