Morley v. Dickinson

Baldwin, J., delivered the opinion of the Court—Field, J., concurring.

Plaintiff filed this bill in equity, alleging that he was surety on a contract for other parties, and judgment was recovered against all the makers thereof, himself included; that execution issued on this judgment, and was levied on sufficient personal property of one of the principals ; that the Sheriff released the property on the giving by the principal of his promissory note ; the Sheriff returned the execution satisfied—stating these facts; and further, that defendants—plaintiffs [563]in the execution—have sued out another execution, and are proceeding to levy it on the property of plaintiff here; that the promissory note for all except the costs due on the execution was received by the plaintiffs in execution, who participated in and assented to this arrangement.

It seems that the note so received by the plaintiffs was sued on by them, and a recovery defeated.

These facts, with some others not material, are found by the Court. The case was tried by the Judge, and a decree of perpetual injunction rendered. We think the decree right. The creditor having secured his debt by a levy on the property of the principal debtor, could not discharge the levy to the injury of the surety. Any extension for a definite period by the creditor to the principal, without the assent of the surety, if the contract be on good consideration, discharges the surety. So any discharge of securities of the principal in the hands, or within the power of the creditor, operates a like discharge of the liability of the surety. This has been held in many cases, and is a well settled principle of law. Parsons on Cont. 510, 514, and cases in note W to P, 511.

In this case, the money might have been made by the plaintiffs in execution, had they not voluntarily released the property subject to the process. Whether the note was given in fraud or not, the contract, until rescinded by the return of the note, was effectual to postpone any right to enforce the execution; but no such rescission seems to have been made.

Although some minor errors may have intervened, yet as this is an equity case, and the facts above stated are not affected by the alleged errors^ we think there is no sufficient reason shown for disturbing the decree. It is affirmed.