
    *Tremper v. Hemphill &c.
    August, 1837,
    Lewisburg.
    [31 Am. Dec. 673.]
    (Absent Brooke and Cabell, J.)
    Bonds — Discharge of Sureties — Additional Obligation Executed by Principal. — A writing obligatory is executed by three obligors, whereby they bind themselves to pay to the obligee a sum of money, nine months after date. One of the obligors is in fact a principal, and the other two are sureties. After the obligation Is executed, the principal, on the same day, without the knowledge of the sureties, makes a memorandum at the foot thereof, under his hand and seal, stating that the obligation is to bear interest from its date. Held, this memorandum has not the effect of discharging either principal or sureties from their obligation.
    Lawrence Tremper, who sued for the benefit of --Sheney, brought debt in the circuit court of Augusta against Robert Hemphill, Joseph Points junior and Walter H. Tapp, upon the following obligation:
    “$250. Nine months after date, we bind ourselves, our heirs &c. to pay to Lawrence Tremper, his heirs or assigns, the just and full sum of two hundred and fifty dollars, for value received of him. As witness our hands and seals this 24th of April 1832. Robert Hemphill [Seal]. Joseph Points jr. [Seal]. Walter H. Tapp [Seal].”
    The defendants Tapp and Points craved oyer of this obligation, and of a writing obligatory at the foot thereof, in these words: “The above notes are to bear interest from the date. Given under my hand and seal this 24th of April 1832. Robert Hemphill [Seal]” — and pleaded that they executed and delivered the obligation on which the action was brought, as sureties of Hemphill, and that after the execution and delivery of the said obligation, viz. on the same day, the plaintiff and Hemp-hill, ‘’'‘without the knowledge or consent of Tapp and Points, entered into a new agreement, inconsistent with the terms of the obligation, whereby Hemphill undertook and hound himself to pay interest on the sum of money secured by said obligation, from the date of the same, when, by the terms of the obligation, interest was not payable until nine months after the date thereof; in pursuance of which new agreement Hemphill afterwards, to wit, on the 24th of April 1832, signed, sealed and delivered to the plaintiff the said other writing obligatory at the foot of the obligation, meaning thereby that the obligation was to bear interest from its date; which said writing obligatory was accepted by the plaintiff as part and parcel of the obligation.
    To this plea the plaintiff objected; but his objections were overruled, and he then replied generally. At the trial, the plaintiff gave in evidence the obligation on which the action is founded, at the foot of which obligation was the writing before mentioned, which was proved to have been signed by Hemphill, and on the back of which said obligation were the following indorsements of credits: “Rec’d the int. of the within note up to the 24th of April 1833, pr. rec’t given, say one year. Silas H. Smith. — 1834 May 19. By cash on the within, SIS.” Whereupon the plaintiff moved the court to instruct the jury, that there was no such change of contract evidenced by the obligation, as exonerated the defendants Points and Tapp, who were admitted by the plaintiff to be only sureties; but the court refused to give the instruction so asked for, and on the contrary instructed the jury, that if said contract was entered into between the creditor and the principal defendant without the knowledge or consent of the sureties, the sureties were exonerated. To this opinion the plaintiff excepted.
    The jury found a verdict for the defendants ; and judgment being rendered thereupon, the plaintiff obtained a superse-deas.
    ’'‘Baldwin, for plaintiff in error.
    Michie, for defendants in error.
    
      
      Bonds — Discharge of Surety. — See, citing principal case, .foot-note to Wright v. Stockton, 5 Leigh 153; foot-note to Devers v. Ross, 10 Graft. 252.
    
   PARKER, J.

The plea allowed in this case neither amounted to a payment of the bond, nor offered a legal excuse for not paying it.

The supplemental paper was no release to the principal, and consequently at law was no release to the surety. It cannot be pretended that the principal, by indorsing on the bond a promise to pay interest from the date, was discharged from his previous obligation. Then it was no discharge of the surety; for I conceive that, at law, nothing which does not discharge the principle can discharge the surety; unless it affects the obligation itself, by erasure or alteration in a material part, with the consent of the principal, but without the assent of the surety. And this was the ground of the decision of Davey &c. v. Prendergrass, 5 Barn. & Ald. 187; 7 Eng. C. L. Rep. 62.

The case of Miller v. Stewart, 9 Wheat. 680, may be good law, but I conceive it does not apply here. There the recital in the condition of the bond stated a special appointment, and the sureties only hound themselves for the principal’s discharging the duties of “the said appointment.” The court thought the alteration "in the instrument, by adding another township, was a new and different appointment, and so not covered by the condition of the obligation. As the alteration was in the appointment, and not in the bond, I presume, upon the reasoning of the court, they would have held the principal, as well as the surety, absolved from liability by virtue of that bond.

I am for reversing the judgment, and sending the cause back, with directions to disallow the plea, and to permit the defendants to plead anew.

*BROCKENBROUGH, J.

I am decidedly of opinion that the additional obligation executed by the defendant Robert Hemphill was no release of the obligation previously executed by the said Hemp-hill, Points and Tapp, and that neither the principal obligor nor his sureties were thereby discharged from their said obligation. I am therefore for reversing the judgment, setting aside the verdict, and remanding the cause for further proceedings.

TUCKER, P.

I am of opinion that this judgment is erroneous. It was decided in Davey &c. v. Prendergrass, 5 Barn. & Ald. 187, that a parol agreement to gfive time to the principal in a bond, is no de-fence at law to an action on the bond against the surety: and this decision was understood to be approved by the whole court in Steele v. Boyd, 6 Leigh 547. “The ground,” said lord chief justice Abbott, “of my opinion is that general rule of the common law, which requires that the obligation created by an instrument under seal shall be discharged by an instrument of equal validity.” What amounts then to a discharge of a bond at law, is a good plea, but what falls short of operating a release or discharge of the whole bond, is not so. Por the common law knows no distinction between principal and surety in the action of debt on a bond; and hence a covenant not to sue the principal cannot be pleaded by the surety as a release; for the principle is laid down without limitation, that a covenant not to sue one of two obligors is not to be pleaded as a release, by the other. 8 T. R. 168; 6 Munf. 9. A release indeed to one is a release to all, for it discharges the obligation; and whatever operates as a release must discharge all, in the case of a joint bond, for the judgment must be joint against all, or there must be judgment for all the defendants. The very judgment here is a proof of the fallacy of the principle of permitting the sureties to plead *a separate release; for the effect is that the judgment is entered in favour of the principal also; and necessarily indeed, according to the common law, as a release to one is a release to all.

In this case it is not. pretended that the supplemental paper is a release of the principal. It cannot then, at law, release the surety. If it were a complete bond for the whole sum, it would not discharge the first bond, since one bond cannot be pleaded in bar of another, even though to the last bond there are sureties. Per Pratt, C. J., in 1 Strange 426, citing 2 Roll. Abr. 470; 1 Brownl. 47, 71; M’Guire v. Gadsby, 3 Call 237; Heathcote v. Crookshanks, 2 T. R. 28. Much less can this discharge the former, as it is nothing more than a promise to pay interest nine months earlier than the first bond required. Nor was it part of the former bond. It could not be that the bond of three obligors was altered by a second supplemental instrument executed by one. If the bond itself had been altered, it would have been a forgery; and if, by this fiction of law, a separate bond written at the bottom of the first is part of the original bond, then this separate paper is a forgery. But can it be believed that this principle can be so applied, or that because the law construes an indorsement or subscription, made by the consent of the parties to an instrument, as part of the instrument, — as part of the agreement of the parties, — such a consent by one party shall make it part ^f the instrument as to all? Assuredly not. But admit it: and then this subscribed páper, being made part of the bond as to all by the assent of one, becomes the bond of the sureties as well as the principal, and so far from discharging them, binds them still further than they were bound before, unless it operates to avoid the bond altogether because of the alteration, in which case the principal himself would be discharged. To such incongruities are we led by the adoption of a false principle of law.

*The case of Miller v. Stewart, 9 Wheat. 680, I think was badly decided. But it does not apply; for there the bond was considered as referring to an antecedent deed of appointment, and the alteration of that deed was held to avoid the bond as to the sureties.

I am of opinion to reverse the judgment, set aside the verdict, and send the cause back, with directions to award a tepleader; the plea of the defendants having been improperly received, as it offered no good bar to the action.

Judgment reversed and cause remanded.  