
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV. 1805.
    Executor of M‘Call v. Administrator of Evans.
    A security in a joint and several bond, cannot defend himself by pleading that he executed the deed as security, (unless it be so expressed m the deed,) and that the principal obligor obtained indulgence from the obligee, who gave him credit after the time of payment, in the condition of the bond mentioned, had expired; and that the obligee forbore to press the principal for payment after the money became due, though requested by the security so to do; in' consequence of which, and of the intervening insolvency of the principal, the security would be remediless, if he were compelled to discharge the obligation as principal debtor. If is not a egal defence. *
    Demurrer determined by Brevard, J., in Marlborough district.
    The action was debt on a joint aud several bond, giveu by Moses T?ort and Thomas Evans, to John M‘Call, the 3d July, 1784, eon* ditioned for £90. The defendant pleaded four special pleas, "ia bar. 1. That M. Fort was principal in the bond, and defendant’s testator the security, of which the plaintiff’s testator had notice, when the bond was made. That, in January, 1785, the defendant’s intestate requested plaintiff’s testator to compel, by process of law, the payment of tin money due by the bond, and inform, d him that if he did give further day of payment to the Drincipal, that he, the said intestate, would not consent to stand security. That the plain, tiff’s testator, without the consent, and contrary to the desire of, the defendant’s intestate, did give further day of payment, for two-years, to the said M Fort. 2. The same facts, as in the first plea, with this variation, that four years were given to the principal after the debt became due 3. The sam- facts, witn this variation, that from January, 1785, to Muy, Í 794, M. Fort continued solvent, and able to pay the debt; and that in April. 1790, Thomas Evans in. formed the plaintiff’s testator, that M. Fort would soon become in. solvent, and requested him to proceed, by action, to recover the debt of Fort. That Fort became insolvent in May, 1794, That plaintiff’s testator had not used due diligence, but indulged Fort from April, 1790, to May. 1794. 4 File fame facts, with some variations, not very material To these pleas there was a general demurrer. Mr. Witherspoon, in support of the demurrer, argued, that the defence set up was merely equitable ; and that not. withstanding the defendant might he relievable in equity, upon ihe facts disclosed in the pleas, yet that the defence was not admissible at law ; for that the security in a bond like the present, cannot aver that he is not a principal deblor, contrary to the face of the bond— a fact contrary to the plain import of bis own deed.
    Mr. Branding, in support of the pleas,
    contended that the facts stated in defence, were sufficient to entitle the defendant to reliefin equity; and that as these facts, wh:ch were sufficient io entitle him to relief in equity', were, in their nature, capable of proof in the ordinary course of proceedings at law ; that he was entitled to be relieved in a court of law, the relief being such as a court of law might afford in the ordinary course of judicial proceedings. To maintain this argument, he cited 2 Brown’s Gb. R. 583. Nesbit Y. Smith. 2 Ves. jun. 542. Reese v. Barrington. 3 D. and E, 406. Easts. Rep. 2 Bos. and P. Cowell v. Cowell. 8 Mod. 313. 1 Std. 67.0.
   Brevard, J.,

inclined at first to overrule the demurrer upon this Consideration, that as the defence set up was, in itself, a good equitable defence, and was capable of proof in the ordinary course of proceedings in courts of law; and as the relief was such as a court of law might give, without breaking through any rule of practice, or introducing any novelty as to form-ot the proceedings; that a court of law might entertain the plea, and allow the same to he proved ; and that notwithstanding relief in such cases has usually been sought for in equity, yet that it may have been necessary, in order to es’ablish the facts necessary to be proved, to entitle the party.to relief; and also, in order to obtain a i effectual reliet, such relief as a court of law is unable to afford, in respect to the manner and extent thereof, being incompatible with the practice or forms of proceedings in courts of law. But, finally, he sustained the demurrer, as the defence appeared to be a novelty in our courts, and as no report of any determination in a court of law could bo found to support it. '

The court at Columbia, refused to hear argument to support the motion to reverse the decision of the District Couri — all the judges present, 27th November, 1805 — consequently the demurrer was held good, and the pleas set aside, and judgment for the plaintiff was affirmed. See 10 East. 34. The Trant Navigation v. Harley, an equitable defence of a security pleaded, and held not to be an estoppel. See Kirb 103, 397. See Cooper’s Justinian, 462, in the notes, and the cases referred to.  