
    The Farmers’ Bank of Canton v. Madison Raynolds.
    An agreement with the principal to give time, without a good consideration, does not discharge a surety.
    To discharge a surety, the agreement must be binding, and suspend the creditor’s right to sue.
    A mere delay to pursue remedies, or omission to enforce liens, does not operate to discharge the surety; to work his discharge, there must be some positive act of relinquishing securities or release of liens.
    This is a motion for a new trial, from Stark county.
    The action was assumpsit, on a note discounted by the plaintiffs) for $2,793.10, made by one Alanson Pcnfiold, payable at *the Commercial Bank of Lake Erie, to the order of defendant, and by him indorsed to the plaintiffs. Plea, non assumpsit.
    
    On the trial of this cause to the jury upon the circuit, the facts proved and admitted were as follows:
    “The note in the plaintiff’s declaration mentioned, fell due at the Commercial Bank of Lake Erie, on August 19, 1836; some time previous to which it was offered for discount, and was discounted by the plaintiff at the request of the defendant, and for his benefit; and the defendant then indorsed said note to the plaintiff, and received the proceeds thereof. That when said note fell due, it was duly protested for non-payment, of which the defendant had due notice. That suit was commenced on said note against Alanson Pcnfiold, the maker thereof, at the next term of the court of common pleas of Cuyahoga county, after the same fell due; and that such proceedings were had in said suit until final judgment, in the Supremo Court of said Cuyahoga county, held August 12, 1837; and that such proceedings were had on said judgment after its rendition, as are stated in the transcript of the docket entries hereto annexed, and certified by A. Clark, clerk of said court of common pleas.
    This transcript shows a judgment at the August term, 1837, of the Supreme Court of Cuyahoga county, in favor of the plaintiff, against Penfield, for $3,124.04, and costs and proceeds.
    “ Mandate to common pleas, and execution ordered, October term, 1837; fi. fa. issued November 23, 1837, to sheriff, and returned March 18, 1838, by order of plaintiff’s attorney, indorsed, ‘Received on this execution, $1,043.16. Deposit fees, $20.40. S. S. Handerson, Sheriff.’ ”
    “ The defendant in the above case produced the plaintiff’s attorney’s receipts; one for $200, and the other for $100, to apply on said judgment; one dated May 1, and the other August 16, 1838. ’ A. Clark, Pep. Glerk.”
    
    “ The defendant produced a receipt, dated November 22, 1838, for $100.
    “ The defendant produced a receipt, dated February 2, 1839, for $100.
    *“ The defendant produced a receipt, dated January 31, 1839, for $100.
    “ The defendant produced a receipt, dated October 11, 1838, for $300/
    “ Al. fi. fa. issued September 1, 1838, and returned by order of plaintiff’s attorney; S. S. Handerson, sheriff; foes, 40 cents. Plu. fi. fa., June 10, 1839, and returned made, $3. No goods. Not levied on goods for want of time; foes, 66 cents. M. Miller, deputy sheriff. Second plu. fi. fa., September 17, 1839, returned, levied on lot No. 1, St. Clair street, appraised at $3,100, not sold; foes, $6.65. M. Miller, deputj^ sheriff. Ven. ex., January 20, 1840, and returned sold to Commercial Bank of Lake Erie, for $2,067; fees, $4.15. M. Miller, deputy sheriff. May term, 1840, sale approved and deed ordered. Third plu. fi. fa-., January 11, 1842. Costs, on motion, for deed, 66 cents.
    “It was further proved that, in March, 1838, a letter was received from said Penfield, by John Harris, president of said Bank of Canton, and its attorney in said suit against Penfield, requesting that the execution, which had then been issued against him, might be stayed over the then next term of said court of common pleas, which was held Ajrril 17, 1838, on condition that he, Pen-field, would pay $1,000, to the credit of said Bank of Canton, in said Commercial Bank of Lake Erie, to be applied on said judgment. That said Harris exhibited said letter to the directors of said Bank of Canton, and was directed by them to accept said proposition. That said Harris accordingly wrote to said Penfield, stating that, on his paying $1,000, as proposed, and showing that loiter to the sheriff, he, the sheriff, would stay the execution as requested; and that the said $1,000 was paid, and said execution •was returned in manner stated in said transcript, March 18, 1838, and that this arrangement was made without the knowledge of the defendant. Also, that the sum of $40 was paid by said Pen-field to said bank, May 1, 1838, in addition to the several sums of $100, $100, $100, and $300, stated as paid in said transcript.
    *“ It was further proved that, at the time of the return of execution, in March, 1838, said Penfiold had sufficient real estate, subject to levy, to satisfy said judgment; that said judgment was a lien on said land, prior to all other liens thereon, and so continued until some time in July, 1839, when said Commercial Bank obtained a judgment against Penfield, in said court of common pleas, which judgment was decided to have a prior lion on said land, in the case of the Farmers’ Bank of Canton v. Commercial Bank of Lake Erie, 10 Ohio, 71.
    “It was further proved that the defendant was a stockholder of said Bank of Canton at the time of the discount of said note, and has continued a stockholder over since, and that he became a director thereof in January, 1839, and continued to be a director until the same was placed in the hands'of receivers, March 12, 1842; and that, in November, 1838, ho, the defendant, was informed by the said John Harris that the judgment against Penfiold was considered perfectly secure; and said Harris stated, on his examination, that ho might, and probably did, so inform the defendant at other times; and that the defendant has, since the discount of said note, been a resident of the town of Canton, where said bank is located, and is a brother-in-law of said John Harris, president and attorney thereof, as aforesaid. And, further, that the indulgence from time to time granted to said Penfiold, in manner aforesaid, was intended to facilitate the collection of said judgment against Penfield, the payment of which, it was supposed, would be suspended by a levy on real estate, which, during the years 1838 and 1839, could seldom bo sold on execution in Cuyahoga county, where the lands of Penfield were situated; and that such indulgence was considered, by the said attorney of the bank and its officers, to be judicious and proper, and that they acted in the premises in good faith. It was also proved that said Penfield, after a judgment obtained by said Commercial Bank, in July, 1839, became-totally insolvent, and has so continued over since, and that said judgment against him, in favor of said Bank if Canton, is uncollected and worthless.
    
      *“And upon the facts aforesaid, the court charged the jury [88 that, by law, the defendant was discharged from liability as indorser of said note, by the acts, neglect, and laches of the plaintiff) in respect to the collection of said judgment against said Penfield, and that the plaintiff was not entitled to rocovor; whereupon the jury found a verdict for the defendant.
    “And now the plaintiff, insisting that, in charging the jury as aforesaid, the court mistook the law, pray the court to set aside said verdict, and grant the plaintiff a new trial in this cause.”
    Griswold & Grant, for plaintiff, in support of motion:
    In order to give the claim of the defendant to be discharged any sort of foundation, it is necessary that he be considered a surety for Penfield, the signer of the note. We shall contend, in the course of our argument, that he does not stand in that relation, and is not entitled to its privileges, but shall first endeavor to satisfy the court that, admitting him to be a surety, in tho strictest sense of the term, there is nothing in the facts of this case to exonerate him from liability.
    In the first place, it will scarcely be seriously argued that mere delay, or neglect to proceed against the principal, will discharge the surety. The cases to the contrary are so numerous and so uniform, that such an argument can scarcely have the semblance of plausibility. “As long as the creditor remains passive, all his remedies remain.” Per Lord Eldon, in English v. Darby, 2 B. & P. 61. In this very case the Supreme Court charged that mere delay would not constitute a defense; and though their opinion was given provisionally on the main point, the agreement for delay, yet we did not understand them to intimate any doubt as to this. But if there be any doubt, we think it will vanish by consulting the following cases: King v. Baldwin, 2 Johns. Ch. 557; Rutledge v. Greenwood, 2 Desau. 389; Burn v. Poag, Ib. 604; Buchanan v. Bordley, 4 Har. & McHen. 41; Hampton v. Levy, 1 McCord’s Ch. 112; Norris v. Crumley, 2 Rand. 323, etc., the details of which we omit, supposing the point to bo too well ^settled to require particular notice. We will only add that nearly every case cited hereafter is more or less to the same effect.
    But it may be urged that in this case the plaintiff by delaying, lost a lien upon land; that is, by reason of neglecting to levy, a subsequent judgment creditor secured a prior lien. Such wo admit to be the fact, but we believe no case can be found of this nature, where an equivalent fact did not exist. Wherever a surety has made a defense, or asked to be relieved, on the ground that the creditor has delayed proceedings against the principal debtor, whether with or without agreement, he has relied upon the fact that if the ci’cditor had proceeded seasonably, he might have obtained satisfaction from the principal. The cases already referred to wore of this description, and the greater part of those cited hereafter present the same feature. In one case, McKinney v. Waller, 1 Leigh, 434, indulgence was given to the principal just as the sheriff was about to levy upon'goods, and in consequence of such indulgence the principal removed his goods beyond the reach of process; and yet the surety was held not to be discharged even in equity, and though there was an express promise of indulgence, but for no specified time. This case is of no importance with respect to the giving of time, but is a strong one to show that forbearance will not avail the surety.
    The rule seems to be well settled, and to be this: If the creditor having once taken the property of the principal debtor, whether by legal process or otherwise, afterward voluntarily releases it, or gives it up, the surety is discharged, but the creditor may refuse to take, or avoid taking, any property within his reach ; and if afterward lost, destroyed, or placed beyond his reach, the surety remains liable. Many cases make this distinction in plain terms, and in still more is it clearly implied. Sneed v. White, 3 J. J. Marsh. 526; Jones et al. v. Bullock, 3 Bibb, 468; Bullitt’s Exe’r v. Winston, 1 Munf. 269. “ The creditor, in order to discharge the surety, must part with something which he has in his possession, and not ^merely with something which he might obtain.” 13 Petersd. Abr. 778, n., citing Fell. 153.
    Indeed, any other rule would render the contract of suretyship very inadequate and unsatisfactory, for it might be a great hardship to compel the creditor to take unsalable property, like the land in the case at bar, and thus postpone indefinitely the payment of his debt. The right of the surety to compel the creditor at law to resort to the property of the principal at all, is purely statutory, so far as it exists.
    Had the bank, in the judgment against Penfield, levied upon his land and afterward voluntarily released it, or even without a levy, had, by a valid instrument, voluntarily released the lien upon it, the case presented would be totally different, and we confess that our confidence in it would be seriously impaired. Such acts would probably amount to active interference to the prejudice of the surety, to which allusion is frequently made. But numerous cases show that the creditor may bo so far active as to arrest proceedings, in any stage, without discharging the surety.
    Is, then, the alleged agreement in the case at bar such as would discharge the defendant, supposing him to be a mere surety for Penñeid ?
    If it be such an agreement, it must possess the following requisites, as we will proceed to show:
    1. It must be such an agreement as legally ties up the hands of the creditor, and would be a legal barrier against his proceeding against the principal debtor during the time stipulated; in other words, it must be binding or obligatory upon the creditor.
    2. It must prejudice the rights of the surety, which rights are either to be substituted for the creditor, or to proceed against the principal in his own name, in case he pays the debt.
    3. In order to have such effect in either case, it must be founded apon an adequate consideration recognized by law.
    We first invite attention to the language of Chief Justice Gibbs, in Orme v. Young, Holt’s N. P. 84, cited in note to Fulton v. Matthews, 15 Johns. 433. “ What is forbearance and giving time? It is an agreement which ties the hands of the creditor; *it is the act'of the creditor depriving himself of the power of suing by something obligatory, which prevents the surety from coming into a court of equity for relief, because the creditor having tied his own hands, the surety can not release them.”
    In another case, English v. Darley, 2 B. & P. 61, Lord Eldon says “that the holder, having given time, can not demand pay'ment of the surety, because if he could, the surety could at once proceed against the principal, which would be a violation, or at least an evasion, of the holder’s agreement.” But if the principal could not enforce the agreement against the creditor, he can not complain that he could not enforce it against the surety.
    In Samuel v. Howorth, Meriv. 288, in chancery (cited 13 Peterd. Abr. 778, n.), the court say’: “ The surety, when time is given, is held to be discharged, because the creditor, by giving time to tho principal, puts it out of the power of the surety to consider whether ho will have recourse to his remedy against the principal or not, and because he can not have the same remedy against the principal, as he would have had under the original contract.”
    The case of Sneed v. White, 3 J. J. Marsh. 526, which arose like the defense in the case at bar, on an alleged agreement to stayexecution against the principal debtor, we regard as a very important one, not only as it recognizes the distinction to which wo have referred, between active interference and mere neglect, but as deciding, explicitly, all the points we are now seeking to establish. “ Forbearance,” say the court, “ or positive indulgence by the obligee, will not release a surety; but any settled agreement, or active interference by the obligee, whereby the surety may be injured or suspended, in the assertion of his equitable right to force the obligee to sue the principal, or deprived of his right to pay tho debt and occupy the attitude, in equity, of the obligee, will release the surety.” “ The equitable right of the surety is to come into a court of equity and demand to sue in the name of the creditor; but if the creditor has given time to the debtor, the surety can not sue him.” S. P., 5 Wend. 85; 6 Ib. 610.
    *“If, when the creditor intends to forbear, he should apprise the principal debtor of that intention, or, in order to relieve him from anxiety, should give him an assurance of .indulgence., without binding himself by any valid contract to forbear, it is fan' from being a necessary consequence of any established principle of equity, or known, dictate of reason, that the surety should be entitled to a release.” Id.
    In this case it is said that if the creditor releases,property levied upon by execution, the surety will be discharged, because this is active interference to the prejudice of the surety. Although the court intended to settle principles, as we have stated, no final decree was made, because the court held that the proper parties were not before him.
    The case of Hunter’s Adm’r v. Jett, 4 Rand. 104, was in equity, and the surety prayed relief because tho creditor had stayed execution after judgment. Per curiam; “ A surety will not be discharged by indulgence granted by the creditor, unless such indulgence ties up tho hands of the creditor from pursuing the debtor at law.” “ The true ground or principle on which a surety is relieved in such cases, of giving time, is, that tho creditor has injured the surety by impairing his rights and remedies.” The relief prayed for was refused.
    The case of Alcock v. Hill, 4 Leigh, 622, was also in equity, and the staying of execution after judgment against the principal debtor, was the ground on which the surety asked felief.
    The opinion of the court is somewhat elaborate, and Judge Tucker, in laying down the rule by which sureties may be discharged, uses the following language: “If, indeed, a creditor engages, for a good consideration, to give indulgence, so as to tie up his hands from proceeding at any moment when ho may be re quired by the surety to do so, the surety is absolved. The con stituents of this principle are: 1. A consideration; for, without it, a promise to indulge is not binding. 2. A promise or agreement to indulge,” etc. It was held that the surety was not absolved, but on several grounds, of which the want of consideration for tbo alleged promise to forbear was one, it being doubtful whether such promise was made in consideration *of the delivery of the slave to be sold, or for any valid consideration whatever.
    Another important case is that of Peay v. Poston, 10 Yer. 111, in equity. The creditor had obtained separate judgments against the principal and surety. The principal confessed judgment at the return term, by reason of a promise that the creditor would stay execution against him for six months. The surety sought to enjoin the judgment against himself for this cause, and his counsel, admitting that a consideration was necessary to give any validity or force to the promise to forbear, contended that the confession of judgment was a sufficient consideration. The court do not decide that point, but say that, inasmuch as by the laws of Tennessee respecting sureties, the surety might, at any time, have paid the debt and proceeded against the principal, he is not discharged; thus determining that the creditor must not only tie his own hands, but also those of the surety,.else the latter continues liable.
    All the American cases cited above were in chancery, where sureties are at least as much favored as at law, and arose on alleged agreements to stay execution after judgment, so that they are strictly applicable. We might enlarge indefinitely the list of authorities which sustain the same principles. All the cases agree that mere delay or neglect, whatever its consequence may be to the surety, will not discharge him; and that if such delay be in consequence of an express and definite promise, that circumstance will not change the principle, unless such promise is founded on a consideration which would support any other contract. Nearly all the cases, also, distinctly declare, that the creditor must do some positive act by which he loses his hold of property, or which would obstruct the surety in some of his remedies against the principal, in case he should pay the debt, else he is not discharged; and several of them are explicit and pointed to that effect. Other cases establish the' same principle in different language. Thus, in Neimcewicz v. Ghan, 3 Paige’s Ch. 650, the chancellor says, that in order to discharge a surety, the creditor *must, “ by his voluntary act, disable himself from ceding to the surety his right of action, or other remedy against the principal debtor or his estate.” The same case distinctly recognizes the necessity of a valid consideration to render any agreement for delay of any effect.
    We will next refer to a few cases which differ from the foregoing in this, that they arise on agreements to forbear before judgment. In Reynolds v. Ward, 5 Wend. 501, at law, the court decide that “an agreement without consideration, by a.creditor, enlarging the time of payment of a note, does not discharge a surety to such note,” and that a promise to pay interest for such enlarged time, does not constitute such sufficient consideration. The case was decided on demurrer, and the plea alleged “that, when the note became due, the principal was solvent, and able and ready to pay the note, and would have paid it but for the agreement to extend the time.” The court say, “ to discharge the surety, it is necessary that there should be some agreement by which the plaintiff’s right to prosecute or enforce the fulfilment of his contract is suspended,” and affirm that no agreement can have that effect, unless founded on a legal consideration. In Fulton v. Matthews, 15 Johns. 433, the same question was decided in the same manner.
    In Braman v. Howk, 1 Blackford, 392, it is held, that in Indiana, giving time to the principal, even for a good consideration, does not discharge a surety, because the laws of that state point out how a surety may be discharged. The case is referred to chiefly because, in a note annexed, we suppose, by the reporter, all the principles we are contending for are recognized, and numerous authorities cited in their support.
    
      The case of McLemore v. Powell, 12 Wheat. 554, is too pointed to pass entirely unnoticed. The defendant was an accommodation indorser, or mere surety, and the plaintiff had made a definite agreement with the principal to extend the time of payment for a specified time, which was acted upon; yet, being made without consideration, the defendant was held liable. These points were presented and decided, unembarrassed with any other questions.
    *We deem it unnecessary to take up the time of the court with additional cases of this sort, though they are very numerous. Many to which we have not alluded will be found in 2 Bar. & Har. Eq. Dig. 401, 408; Tit., Prin. and Surety, sec. 2.
    Let us next inquire if the alleged agreement in the case at bar was founded upon any legal consideration. Wo strongly suspect, indeed, that it was never understood or intended, by either of the parties, to be an agreement binding in law, or anything more than an honorary pledge; but we will not dwell on that point. If there was any consideration, it was the payment of $1,000, part of the judgment on which indulgence was to be given. But no principle is bettor settled than that payment of part of a debt which is due is not a legal consideration for any contract. It is so laid down in the elementary books, and appears to have been nettled in the infancy of the English law. In the modern case of Peabody v. Knox, 12 Johns. 426, it is also distinctly decided. But we are not forced to rely upon the general principle, for we find it applied to cases exactly similar to that before the court. Among these we refer to Hall et al. v. Constant, 2 Hall’s N. Y. C. 185, where this point is distinctly made and decided — a case which also appears to us to decide in our favor every point made in the present case, and differs from it only in the agreement for delay being made before suit, which we suppose to be of no importance, and, in the feature believed to be important, that the defendant was an accommodation indorser, or mere surety. A part of the debt was paid, and the creditor, by reason of such payment, agreed to extend the time of paying the residue, and extended it accordingly ; yet as part payment was held to be no valid or sufficient consideration, the defendant was decided to be liable.
    We have remarked that there are some reported cases in which giving time has been held.to discharge a surety or indorser, though the agreement to give time does not appear to have been founded on any good consideration. The English cases of this description are, we believe, all referred to in *Chit. on Bills, 10 Am. ed. 408, n. m. The note cites six cases in all; in three of which, however, a consideration, viz: a new security, distinctly appears, leaving only the three following, in which the want of a consideration can be presumed: Anderson v. George, Trin. Term, 1757, cor. Ld. Mans.; Tindall v. Brown, 1 Term, 179; Clark v. Devlin, 3 B. & P. 363. In all these cases, however, the court base their decisions on the fact of giving time, the necessity of a consideration not being adverted to.
    With reference to these decisions, Chit. on Bills, 10 Am. ed. 413 (the passage is not in the older editions), remarks as follows: “ It seems that, in the older cases, any absolute and distinct agreement to give time, was considered as discharging the drawer and indorsers, without any distinction whether such agreement was •founded on a sufficient consideration to bind the party making it [here the note m, page 408, citing the cases just mentioned, is referred to]; but of late a distinction has been taken, and a new doctrine sprung up and been acted upon, namely, that even an express agreement not to sue, made after giving notice of nonpayment, and without taking any new security, being nudum, \pactum, will not discharge the other parties.”
    None of the cases now under consideration seem to have been very carefully considered. The same may be said of two cases in Ohio, Beaver v. Butler, Wright, 367; Reddish’s Ex’rs v. Pentheuse, Id. 538, where giving time was held to discharge a surety without making any mention of the question of consideration.
    We come, finally, to a decision in our own highest court, Jenkins v. Clarkson, 7 Ohio, pt. 1, 72, which appears to us to settle every position which we have been laboring to establish by authorities elsewhere. The defendant was admitted to be a mere surety; and the creditor, totally disregarding the earnest solicitations of the surety, had delayed until the principal had become utterly insolvent, while, if the creditor had proceeded in time, the debt might have been collected of the principal. Such was the ease made by the demurrer; and *it was also proved that a portion of the delay was in consequence of an agreement, made by reason of a payment of $150 on the debt; but it did not appear that the agreement was to forbear for any specified period. The case proves : 1. That mere delay, however disastrous to the surety, will not discharge him. 2. That an agreement for delay, in order to discharge the surety, must be a valid one, and founded on a good consideration, and must tie up the hands of both creditor and surety; and 3. That the payment of a part of th.e debt is not a sufficient consideration. All these points are distinctly made and decided in the case, although another point is made material, namely, that the agreement was for no specified time.
    It should be recollected that, in the case now before the court, the lien on the land was not lost by reason of any delay under the pretended agreement which is set up. This agreement was made about March 18, 1838, and extended only to the 17th of the next month, a period of thirty days, or, at farthest, only till the end of the term of the court which commenced on that day. Yet the lien continued good until July, 1839, fifteen months afterward, and six months after the defendant became a director of the bank. It was then lost b^- reason of a judgment obtained against Penfield by the Commercial Bank of Lake Erie, which was decided, after litigation, to have the preference.
    Harris and Starkweather, for defendant.
    If a creditor gives time to the principal debtor without the knowledge or assent of the security, such security is discharged,, especially where the time given operates in fact as an injury to the security.
    This is a doctrine from the civil law, and is as old as the best days of Rome. 1 Story’s Eq. Jur. 320. It now forms a part of the common law of the land, and can be taken advantage of as well at law as in equity, especially as in this case, when the claim has not passed into judgment. *Chitty on Bills 444, and case there cited; 2 Bos. & Pul. 60; 3 Bos. & Pul. 363, see notes; 8 East, 577; Metcalf and Perk, Dig 1, 472; 5 Ohio, 214; 7 Ohio 72; Wright 538. But it is urged that there was no valid contract for delay in this case, as there was no consideration paid by Penfield, and that the payment of $1,000 as part of the claim, was not such a consideration as to make the contract binding, and was therefore no valid contract.
    It is admitted that by most modern decisions it is held that a contract for delay, in order to discharge the surety, must be for a period certain, and for a valid consideration. As to the period it is held in some of the cases, that if the right to prosecute is delayed, 
      “ oven for a moment,” it discharges the security, and none attempt to fix any length of time, so that the period is definite.
    As to the consideration it may be answered, that the payment of a part of a debt, at a particular place whore the defendant in the judgment was not obliged to pay it, may have been a valuable consideration to the plaintiff, and was in this case all the consideration which the plaintiff could have taken, as this court has determined in the ease of the Rank of Chillicothe v. Swayne et al., that no consideration for delay of payment can bo taken by a bank without discharging the debt. In this case there was a contract in writing, as the agreed case shows that all was done by letter-writing, founded on the only consideration that could have been accepted by the plaintiff in this case (was not a desire to benefit Penfield by delay, a good consideration, and sufficient to sustain a contract between him and the plaintiff?); and for a clearly defined period, the end of the next term of the common ple&s court of Cuyahoga county, which was fixed by law at the time.
    But this contract was fully executed on both sides. Both parties had complied with the terms of it, and we submit that when a contract had been made and executed on both sides, fully complied with by both parties, it does not lie in the mouth of either party to say that no valid contract existed for the want of a valid consideration. Beaver v. Butler and Hall, Wright 367.
    *But we think this case may bo decided on grounds entirely distinct from the question of giving time, whether with or without consideration, whether executed or not executed.
    The principle alluded to is, that when the creditor has collateral security in any form, either by judgment, lien, mortgage, levy of execution on personal property, or in any form whatever, whether taken with or without the knowledge of the surety, he is bound so to conduct himself as not to injure or destroy that collateral security, and if he fails so to do, either by acting, or neglecting to act, the surety is discharged to the extent of the collateral security so lost by the acts or negligence of the principal debtor, which in this case is the entire claim. For the general doctrine see Story’s Equity, 320 et seq., whore it is distinctly laid down that any act done, or negligence suffered by the creditor to the injury of the surety, the surety is thereby discharged.
    This doctrine is clearly illustrated and fully sustained by many cases, both in England and in the United States, to a few of which we shall direct the attention of the court.
    In 2 Swanst. 185, it.was determined that when an execution was levied on the goods of the principal debtor and withdrawn by the creditor without the knowledge or assent of the surety, the surety was discharged. The language of the judge in delivering the opinion of the court, is: “I think it clear that where execution was levied on the goods of the principal debtor, and the creditor afterward withdraws the execution, he discharges the surety both at law and in equity, though the creditor might have remained passive if he chose.”
    This doctrine is fully sustained in 8 Serg. & Rawle, 458, where it was decided by the court, that if a fieri facias issued and was levied on the goods of the principal debtor and the execution is stayed by the creditor without consulting the surety, the surety is thereby discharged : the language of the court is, “ That when the creditor has the means of satisfaction in his own hands, and chooses not to retain it, but suffers It to pass from his hands, the surety can not be called on.”
    *The same doctrine is laid in 13 Serg. & Rawle, 158. That . was a case where a landlord executed a lease and took security for its fulfilment, and afterward neglected to distrain the goods of the tenant as he had a right to do, and might have done, delaying his distress until the goods had been disposed of by the tenant, that the surety was discharged. The court quote the preceding case and fully recognize the doctrine there held.
    In 16 Serg. & Rawle, 252, is a case which fully confirms both the last cited cases, and overrules a distinction attempted to bo drawn, by which it sought to take it out of the reason of the previous eases.
    A case is reported in 7 Leigh, 244, which is strongly in point. It was held in that case, that when an execution was issued and delivered to the sheriff, though not levied, (the delivery of a ft. fa. to the sheriff creates a lien in Virginia, on the personal property of the defendant,) and the creditor ordered the execution returned, the security was discharged ; and in that ease the judgment was against the principal and surety both, the court; holding that the relation of principal and surety continued after judgment. The court say that the principle applies as well to securities by contract as by operation of law; and they fully recognize tho doctrine that when a creditor has, by operation of law or by con tract, obtained a lion or collateral security of the principal debtor, either before or after judgment, he is bound sacredly to preserve that lien or collateral security; and if by either his acts or his negligence to act, loses such collateral security, the surety is discharged to the extent of that lien or collateral security thus lost, which undoubtedly covers the whole ground of this case.
    The case in 2 Ohio, 303, though not directly in point, or analogous to tho present case, yet shows with what vigilance this court guards the rights of sureties. That was a case whore tho surety had given notice under our statute for the relief of securities, and the creditor on receiving such notice, instead of suing the principal debtor and security, had sued the surety alone, and the court held that, although the creditor had *pursued the strict letter of the law, he had not complied with its spirit, and the surety was discharged. The case reported in 4 Johns. Ch. 123, is also strongly in point.
    We ask, docs not the case at bar, rim on all fours with tho case from Swanston, and the several cases from Sergeant and Rawle, and is it not strongly analogous to the ease cited from 4 Johnson’s Chancery Reports ? In the case at bar, the creditor had ample security by the lien ho hold on the real estate of Penfield. That lien was lost by the acts and negligence of the plaintiff, and this without any act or fault of the surety, and he is therefore discharged.
    The lien created by a judgment while it remains unimpaired, is equivalent for all the purposes of security to a levy on personal goods, or a mortgage on land. Tho plaintiff undertook to control and did control the business, and while thus controlling the matter, so conducted himself that the lien, which was an ample security for the debt, was lost: not only is the debt lost, but while tho fatal period was running which destroyed the lien, the defendant was lulled into security by the plaintiff.
    We have examined many of the authorities cited by tho counsel for plaintiff, but find none that materially change the principle of tho cases we have cited. They are mostly cases where the court have decided that a consideration is necessary, and that a definite time should be agreed on, both of which we have endeavored to show is comprised in this ease. That a definite period was fixed is beyond all doubt. That the payment of $1,000, at a place where the defendant and Penfield were not obliged to pay it, is a consideration, if any consideration could have boen taken by the bank, as the law allows no other consideration. And will it be pretended that a bank can make no valid contract for forbearance in the payment of a debt? If it can, what would be a considereration to support such a contract ?
    In answer to the distinction taken by the counsel on the other side, between an accommodation indorser and other sureties, %e will refer the court to the case of McLemore v. Powell, 12 Wheat. 554, cited by the plaintiff's counsel for other purposes. In that case, the court declare that there is no difference between an indorser or a security in any other form, without ever hinting at the distinction between an accommodation indorser or any other kind of an indorser, which is attempted to be urged by the counsel.
    In addition to the authorities already cited, attention is called to the following:
    In Baird v. Rice, 1 Call. 21, it was decided that the execution being levied on property and restored to the principal debtor by order of the creditor on payment of part of the money, and a further day given for the balance, was a total discharge of the surety, although judgment was rendered against the surety. Hill v. Bull, Gilmer, 151, giving time alone, without consideration when it was executed, released the surety. Reese v. Barrington, 2 Ves., Jr., 540. Barrington, creditor, sues the principal debtor, .but, without the privity of the surety, agrees to stay the execution, the surety is discharged. Varnum, Fuller & Co. v. Milford, 2 McLean, 74, giving time with a promise to pay the debt “ out of a certain judgment they were to obtain the following September,” was held to discharge the surety; all the authorities seem to treat an agreement executed as needing no consideration beyond mutual performance.
    Griswold and Grant, in reply.
    The counsel for the defendant, assuming him to be a surety, have cited some cases to show that he is discharged by reason of the neglect of the bank to levy on Penfield’s land, until the lien upon it was superseded by a younger judgment. We do not think the cases cited establish the principle contended for. Those in in Swanston, 8 Sergeant & Rawle, and 16 Sergeant & Rawle are all cases whore the creditor having levied upon the goods of the principal debtor, afterward, by some positive *and voluntary act, released his lien acquired by such levy. We have already intimated that had the plaintiff in this case done the like, we should strongly suspect that the defendant, his claim of surety-ship being allowed, would be discharged.
    But the case of Lichtenhaler v. Thompson, 13 Serg. & Rawle, 158, is somewhat peculiar, and perhaps demands special notice. The defendant was surety for the payment of rent by a tenant to his landlord. The landlord had a lien on the goods of his tenant on the premises, created by law, and during the subsistence of this lien the goods were levied upon by an execution. The surety thereupon gave the landlord notice to avail himself of his lien, which he refused to do until it was lost, and the surety was held discharged. Unless this case can be reconciled with the other authorities by means of this latter fact and the other peculiar circumstances, wo have only to say it is in conflict with a current of decisions, which is, so far as we can find, marred by no other irregularity.
    The case of Chichester v. Mason, 7 Leigh, 244, even if apparently in favor of the defendant, will be found on examination to be far otherwise. The county court had decreed in favor of the surety, and its decree came before the court of appeals for reversal. Two of the judges, Carr and Brockenbrough, were in favor of reversal; the two others, Cabell and Brooke, were in favor of affirmance; but a reversal requiring a majority, the decree was affirmed, But the judges were all agreed in the correctness of the principle for which we contend, but were divided as to its application to the facts of the case. The position of the two who hold the surety discharged is thus defined by Cabell, J.: “1 put the discharge in this case on the ground that the creditor had, by putting his execution into the hands of the sheriff, acquired a lien on all the unincumbered goods of the principal debtor for the payment of his execution, and that by the arrangement made, he voluntarily and fraudulently parted with that lien without the knowledge or consent of the surety.” But the present case is not at all analogous in its facts, as the bank acquired no lien by issuing execution, and lost none by its return.
   *Read, J-.

The question of law in this case is, whether the agreement made, or the loss of the judgment lien by neglect to levy, discharges the defendant from his liability as indorsor.

A change of contract, or the extension of the time of payment on good consideration, or the relinquishment of securities, or the release of liens, or any positive act which suspends the creditor’s right to sue or the sureties’ right to pay, will work his discharge unless done by his consent. But an agreement to give further time for the payment of a debt due, which is not binding for want of consideration, or a mere delay to pursue remedies, or an omission to enforce liens, will not release him.

Theso principles are supported by authorities too numerous to be cited; I refer, therefore, only to our own reports: Bank of Steubenville v. Adm’rs of Carroll, 5 Ohio, 214; Same v. Hoge et al., 6 Ohio, 17; Jenkins v. Clarkson, 7 Ohio, 72.

In this case the agreement to give time was without valid consideration; the loss of the lien was a mere omission to act; and not for a moment, since the debt fell due, has the right of the creditor or the surety been suspended. A new trial must therefore be granted.

New trial granted; cause remanded.  