President of the Board of Police v. Covington

26 Miss. 470 | Miss. | 1853

Mr. Justice FisheR

delivered the opinion of the court.

This was an action of assumpsit, brought in the circuit court of Clarke county, on a promissory note made by one Vance as principal, and the defendants in error as his securities, payable to the president of the board of police of said county.

The defence set up is, that the plaintiff below, without the knowledge or consent of the sureties, extended the time of payment to the principal debtor.

The proof is, that a suit which had been commenced was dismissed by the president of the board, on the principal, Vance, delivering to the said president a note made by one Carr for ¡$100, which was credited on the note of the defendants. It is not shown that the indulgence was given for any definite period of time.

Upon this state of the case a verdict was found for the sureties, upon which the court pronounced the proper judgment.

The law is well settled, that to discharge a surety on account of indulgence granted to the principal, the indulgence must be for a definite period of time, founded upon a new consideration.

There must be a new contract concluded between the creditor and the principal debtor, by which the hands of the former are tied for a definite period of time, from suing the latter. No such contract is shown in this case.

The case may, however, be safely rested upon another ground. It is not pretended that the board of police made any contract, or assented to any indulgence on the terms set forth in the record. The order on this subject is in these words: “ At a term of said court, begun and held on Tuesday, the 14th November, 1843, ordered by the court, all the actions brought by the president of this court on notes of three per cent, fund, be withdrawn, by the principal coming forward and paying costs and interest, and renewing their notes.” The president' had no power to grant indulgence to the principal, otherwise than by taking a new note, as specified in this order. This was not done, and hence no contract was made which can bind the board of police.

The judgment extending the demurrer to the declaration reversed. Final judgment reversed, and cause remanded for a new trial.