
    *Steele v. Boyd.
    July, 1835,
    Lewisburg.
    (Absent Cabell and Cake, J.)
    Principal and Surety — Release of Surety. — If tie creditor make an agreement with the principal debtor in a forthcoming bond, to take a certain sum, payable in five annual instalments, in full satisfaction of the bond, without the consent of the surety, this releases the surety from his liability on the bond.
    Same — Same—notion—Court of Law — Exoneretur.— And the court, on whose process the forthcoming bond was taken, sitting as a court of law, may, on motion of the surety, and on proof of the agreement and the giving of time to the principal, direct- an exoneretur of the surety from the bond and all executions that may be sued out upon it.
    Same — Same—Witness—Competency.—The principa5-is a competent witness for the surety, on the hear-insr of suck motion, to prove the agreement between the creditor and himself, and the indulgence given him for the debt.
    Elizabeth Boyd, in 1824, sued out a writ of iieri facias upon a judgment of the county court of Augusta, against David Steele and Samuel Steele his appearance bail, for 397 dollars, principal,interest and costs ; and the execution having been levied on the property of David Steele, he with the same Samuel Steele and Joseph Seig, his sureties, executed a bond for the forthcoming and delivery of the property to the sheriff, at the day and place appointed for the sale thereof. The forthcoming bond was returned forfeited, and the county court, in Kovember 1824, awarded execution thereon against all the obligors. A writ of fieri facias upon the forthcoming bond was immediately sued out against them, and that execution was also levied on the property of the principal; but the superiour court of chancery, upon a bill filed by David Steele, the principal, enjoined further proceedings on this execution till further order; and, thereupon, the sheriff released the property taken in execution. The bill in chancery was dismissed by David Steele, in June 1825. And in 1831, Mrs. Boyd sued out ^another writ of fieri facias upon the forthcoming bond against all the obligors, which was levied on the property of Samuel Steele, one of the sureties.
    Whereupon, Samuel Steele moved the county court to discharge the levy made by the sheriff, of the new execution on his property, and to exonerate him from all further process of execution on the forthcoming bond, — on the ground, that the creditor had made a compromise with David Steele, the principal, and given him time to pay the debt, without the consent of the sureties, and thereby released them from their responsibility. Both parties Were heard on this motion, and much of the evidence adduced on both sides (whether all or not, did not distinctly appear) was stated as part of the record.
    The evidence was contradictory; but, in the opinion of the county court, the state •of facts proved by it, was as follows— Shortly after David Steele had filed his bill for the injunction to stay proceedings on the execution on the forthcoming bond, namely in 1825, an agreement was made between the attorneys and agents of Mrs. Boyd and him, without the knowledge of his sureties, whereby it was agreed on the part of the creditor, that she would take 250 dollars, to be paid in annual instalments of 50 dollars, in full discharge of the debt due on the forthcoming bond, and that the judgment on the forthcoming bond should be released; and he agreed to pay that amount in instalments accordingly, and to dismiss his bill in chancery at his own costs. David Steele, in pursuance of the agreement dismissed his bill; and he, acknowledgedly, paid, at different times, nearly the whole amount of 250 dollars, but these payments were applied to other debts due by him to Mrs. Boyd, for which she had no security.
    David Steele, the principal obligor in the forthcoming bond, was one 'Of the witnesses examined for Samuel Steele, the suretjr, to prove the facts above stated. Objection *was made to his competency; but the county court overruled it, and heard his testimony.
    And the county court, being of opinion that, after the first execution was sued out upon the forthcoming bond, a compromise was made between Mrs. Boyd, the creditor, and David Steele, the principal in the bond, without the knowledge or consent of Samuel Steele, the surety, by which she agreed, for a. sufficient consideration, to receive the sum of 250 dollars in discharge of the execution, to be paid in certain instalments, the effect of which compromise, and the payments made in pursuance thereof, was to exonerate Samuel Steele, the surety, from all liability on the forthcoming bond, — ■ therefore ordered, that the levy of the last execution on Samuel Steele’s property should be discharged, that the sheriff should restore the property to him, and that he should be exonerated from all further process of execution on the forthcoming bond; that the creditor should be at liberty to sue out execution on the forthcoming bond against all the obligors, but without the right to cause the same to be levied on Samuel Steele or his property; and that the clerk should indorse proper directions to give effect to this order, on all future executions to be issued on the forthcoming bond.
    The circuit superiour court of Augusta, upon the petition of Mrs. Boyd, allowed a supersedeas to the order of the county court, and, upon a hearing, reversed it; being of opinion, that the county court, sitting as a court of law, and in the summary proceeding by motion, could not take cognizance of the matter of discharge relied on by Samuel Steele, namely, the contract of compromise, and the giving time to the principal debtor, without the consent or knowledge of the surety — the appropriate remedy in such case being by bill in equity; nor was the competent testimony sufficient to warrant such an order, in such a mode of proceeding, upon the ground of payment or satisfaction of the debt.
    *And then, Steele applied by petition to this court for a supersedeas to the judgment of the circuit superiour court; which was allowed.
    The cause was argued here by B. G. Baldwin for the plaintiff in error, and by Pey-ton and Baxter for the defendant,
    on three points—
    I. Whether the compromise, between Mrs. Boyd and David Steele, the principal, and the giving time to him to pay the debt in instalments, alleged by the surety as the ground of discharge of the sureties from liability, was proved? And this question of fact was discussed upon the evidence.
    II. Whether David Steele, the principal in the forthcoming bond was a competent witness for his surety, Samuel Steele, on this motion, to prove the alleged compromise &c. by reason of which the surety insisted he was discharged.
    Baldwin maintained, that he was competent, since he could be nowise benefited by the relief sought by the surety, if it should be given. He himself remained still responsible for the debt, and liable on any execution that might be sued out upon it.
    Peyton and Baxter argued that the relief sought by the surety, was an exoneration of him from the execution then in the sheriffs hands and levied, and from all further liability for the debt due by the forthcoming bond; and that a discharge of one obligor, whether effected by act of the obligee, or by act of law and judgment of the court, might at law operate as a discharge of all. Clarke v. Clement, 6 T. R. 525. But, however that might be, the exoneration of the surety would discharge the principal from his duty to indemnify the surety; from the surety’s right of action against him; from interest corn-pounded on the interest which *the surety would have to pay, and from the costs of the surety’s action against him. Riddle v. Moss, 7 Cranch 206. Therefore, David Steele was not a competent witness.
    III. Whether the county court, sitting as a court of law, and in this summary way on motion, could exonerate the surety from liability on the forthcoming bond and from all process of execution thereon, on the ground of the alleged compromise, upon valuable consideration, between the creditor and the principal, and the giving time to the principal to pay the debt in instal-ments, without the consent or knowledge of the surety?
    Baldwin said, the forthcoming bond, according to the statutes and practice of Virginia, was part of the process of execution ; Brooke v. Roane & Co., 1 Call 205. And every court had jurisdiction to correct irregularities in its process, or an abuse or fraudulent use of it, and to prevent it from being made an instrument of injustice. The remedy'by audita querela was obsolete; and, in practice, the proceeding by motion was universally substituted for it, and was now the proper course of remedy in every case in which the audita querela would lie; that is, in all cases of matter of discharge arising to the defendant subsequent to the judgment. He cited Hendricks v. Dundass, 2 Wash. 50; Bullitt’s ex’ors v. Winstons, 1 Munf. 269; Smock v. Dade, 5 Rand. 639; Windrum v. Parker, 2 Leigh 361, which, he said, sustained the jurisdiction of the court to exonerate the surety in this case, on the ground on which he was relieved, and in this summary proceeding by motion.
    Pe.yton and Baxter answered, that it was true, the summary remedy by motion had been, in modern practice, substituted for the audita querela, in many, perhaps, in most cases; but not in all. If the ground of relief was matter of fact, proper to be tried, Wicket v. Creamer, 1 Salk. 264; 1 Ld. Raym. 439, S. C. or if the merits of the case were not clear, Dodd v. Beckman, 1 Ld. Raym. *445, or if the relief was questionable, Giles v. Nathan, 5 Taunt. 558; 1 Eng. C. L. Rep. 188, in such cases, they said, the court would not entertain a motion for relief. Wardell v. Eden, 1 Johns. Rep. 531, in note, 2 Johns. Ca. 121, 258. The motion was substituted for the audita querela, where the ground of relief was legal, and apparent on the record, or clear and uncontroverted, as was the case in Hendricks v. Dundass, Bullitt’s ex’ors v. Winstons, and Windrum v. Parker; but where the ground of relief was equitable, the party’s proper remedy was a bill in equity for an injunction. In this case the facts on which the motion was grounded, were liable to be controverted, and were in fact controverted, and the evidence was conflicting; and the matter relied on as a discharge to the surety was. in its nature, a discharge in equity.
    
      
      Principal and Surety — Discharge of Surety — Extension of Time — It is well settled that any agreement between the creditor and the principal debtor to extend the time of payment of the debt for a definite period, if founded on a sufficient consideration and made without the surety’s consent, will discharge the surety, even though the change be for his benefit. Glenn v. Morgan, 23 W. Va. 467; Stuart v. Lancaster, 84 Va. 772, 6 S. E. Rep. 139; Knight v. Charter, 22 W. Va. 429; Exchange Building, etc., Co. v. Bayless, 91 Va. 134, 21 S. E. Rep. 279; Burson v. Andes, 83 Va. 445, 8 S. E. Rep. 249; State Savings Bank v. Baker, 93 Va. 510, 25 S. E. Rep. 550; Bacon v. Bacon, 94 Va. 686, 27 S. E. Rep. 576. See Tate v. Bank, 96 Va. 765, 32 S. E. Rep. 476; Legrand v. Rixey, 83 Va. 862, 3 S. E. Rep. 864.
      The principal case is cited in Walker v. Com., 18 Gratt. 49. See Baird v. Rice, 1 Call 18, and note; Harnsberger v. Geiger, 3 Gratt. 144, and note. See also, extensive note to the principal case in 29 Am. Dec. 225.
      Same— Same — Same — Consideration — Payment of Usury. — And the actual payment in advance of usurious interest by the principal to the creditor, where the whole interest so paid cannot be recovered back, is a sufficient consideration for the extension of the time of payment, and, if made without the consent of the surety, will release him. Glenn v. Morgan, 23 W. Va. 467; Armistead v. Ward, 2 Pat. & H. 504.
      Same — Same—Withdrawal of Execution. — But a mere countermand of an execution by the creditor, after it goes into the hands of the sheriffi, but before it is. levied, does not release the surety of the execution-debtor. Knight v. Charter, 22 W. Va. 429. See Baird v. Rice, 1 Call 18.
      Same — Same—New Note. — it has been held that if the holder of a promissory note takes a note of the principal debtor, without the surety’s consent, the surety is discharged. Stuart v. Lancaster, 84 Va. 772, 6 S. E. Rep. 139.
      Same — Same—Change in Contract. — it is also well settled that any change in the contract, however immaterial, discharges the surety, if made without his consent, even though the change be for the surety’s benefit. Christian v. Keen, 80 Va. 369; Dey v. Martin, 78 Va. 1; Leonard v. County Court, 25 W. Va. 45; Blanton v. Com., 91 Va. 1, 20 S. E. Rep. 884; Exchange Building, etc., Co. v. Bayless, 91 Va. 134, 21 S. E. Rep. 279. See Kirschbaum v. Blair, 98 Va. 35, 34 S. E. Rep. 895.
      Same — Same—Extension of Time by Statute. — But where a statute granted to a public officer an extension of time within which he was required to settle his accounts, without the surety’s assent, this was held not to discharge the surety on his official bond from liability. Smith v. Com., 25 Gratt. 780.
      Same — Same-Extension of Time to Subsequent in-dorser. — Nor is an indorser of a note released from liability by an agreement of the holder with a subsequent indorser to extend the time of payment. Wright v. Independence Nat. Bank, 96 Va. 728, 32 S. E. Rep. 459.
      Same — Same—Extension of Time — Privilege Personal. — The right of a surety to be discharged in equity by extension of time given by the creditor is personal to the surety, and cannot be used by another creditor of such debtor. This personal privilege he may waive by a verbal ratification or assent made after the agreement for such extension has been entered into. Turner v. Stewart (W. Va.), 41 S. E. Rep. 924; Glenn v. Morgan, 23 W. Va. 467.
      Same — Same—Same—No Defence at Law —As to the point that a parol agreement to give time to the principal in a bond, is no defence at law.to an action on the bond against the surety, see the principal case cited and approved in Tremper v. Hemphill, 8 Leigh 626; Steptoe v. Harvey, 7 Leigh 535, 536. See Devers v. Ross, 10 Gratt. 252, and note. See Glenn v. Morgan, 23 W. Va. 407; Sayre v. King, 17 W. Va. 562.
    
    
      
      Same — Same—Witness—Competency.—The principal debtor is a competent witness for the sureties to prove the contract for forbearance between the creditor and himself. Armistead v. Ward, 2 Pat. & H. 504, 510, citing the principal case.
      The principal case is cited and distinguished in Mills v. Central Savings Bank, 16 Gratt. 98.
      Audita Queruia, — The audita querula. to relieve a defendant from an execution where the matter of •discharg-e has been subsequent to the judgment, is an obsolete remedy, and has been superseded in modern practice by the more summary and less expensive method of proceeding by motion. Smock v. Dade, 5 Rand. 639, 16 Am. Dec. 780; Steele v. Boyd, 6 Leigh 547, 29 Am. Dec. 218.
      The principal case is cited in this connection in Stroheim v. Deimel, 77 Fed. Rep. 805.
    
   BROCKENBROUGH, J.

I shall make a few remarks on the question, whether in this case the plaintiff, Samuel Steele, had a right to resort to the summary remedy of a motion to discharge the levy of the execution on his property, and to enter an exon-eretur from the process of execution, instead of being driven to the ancient remedy of audita querela, or to a bill in equity for an injunction? In the case before the general court, of Smock v. Dade, 5 Rand. 639, this very question was abty and elaborately discussed by Mr. Johnson in favour of the remedy by motion, and by Mr. Stanard on the other side. That court decided, that “as well from the uniform practice in Virginia, as from the modern decisions in England, the more summary and less .expensive mode of proceeding by motion was proper, and that relief may be given in this way, in all cases where by the ancient practice the party would be entitled to an audita querela.” To obviate the objection which was urged, that this summary remedy cannot be resorted to, where the question depends on contested matters of fact, that court further ^decided, that, on such motion, “the court maj in its discretion cause them to be submitted to a jury, and that such course is particularly proper, where the evidence is contradictory, or where it may authorize conflicting inferences, and either of the parties is desirous of referring the facts to that forum.” I do not refer to that decision as an authority in this court; but as I concurred in it, and still think it a correct and valuable decision, I may be excused, I hope, from not readily departing from it. — Blackstone (3 Comm. 406J, says, that the “indulgence now shewn by the courts in granting a summary relief upon motion, in cases of evident oppression, has almost rendered useless the writ of audita querela, and driven it quite out of practice. ’ ’ If this was true in England, when he, wrote, how much more true is it in this country? I question whether the oldest practitioner in our courts has ever known an instance of a resort to the audita querela, or whether the writ can be found in any of our records. The opinion of Blackstone is fully supported by the remark of chief justice Eyre, in Lister v. Mundell, 1 Bos. & Pull. 428, who says, it is “the modern practice to interpose in a summary way in all cases where the party would be entitled to relief on an audita querela.”

The circuit court, whose judgment we are now examining, supposed that the injunction was the proper remedy. I do not deny, that that remedy might be resorted to, and in cases where a discovery from the defendant on oath is important, it may be the best remedj'; but to make it the only remedy, w’ould disrobe the courts of law of a most beneficial part of their power. ‘ ‘Every court,” said judge Lyons, in Hendricks v. Dundass, 1 Wash. 54, “hath a perfect right to watch over the execution of its judgments, and where its process hath been irregularly or fraudulently executed, to quash it, as being the best and speediest mode of doing justice.” How could the former district courts, or the late circuit ^courts of law, have exercised this salutary jurisdiction, if a party against whom an execution has irregularly issued was compelled to resort to the court of chancery for redress? The audita querela being obsolete, unless the motion was allowed, the courts of law could give no redress in such cases.

But this question is, I think, settled by the decision of this court in Bullitt’s ex’ors v. Winstons, 1 Munf. 269. In that case, two executions had issued against the property of Littlepage and the Winstons as his sureties, in January 1800, returnable the 1st April following. The plaintiff Harrison, one of the executors of Bullitt, on the 12th March, directed the sheriff to put off the sale of the property until August, holding it subject to the executions, and to suffer it to remain in the possession of Littlepage, or his sureties. A subsequent execution was issued against the goods of the same parties in February 1804. The sureties made a motion to the next district court, to quash the writ, on the ground that the time extended to the principal debtor, and the order to the sheriff, being given without any agreement on the part of the sureties, operated as a release to them. The district court sustained the motion, and quashed the execution. The judgment was affirmed by the unanimous opinion of this court. It may be remarked, that neither of the counsel for the appellants there (Botts and E. Randolph) took an exception to that mode of proceeding, nor did either of the judges notice such an objection. If it had not been the settled practice of the courts of law to hear such motions, there can be no doubt, that those able counsel would have made the objection. I think the question ought to be put at rest.

As to the question of the competency of David Steele, I shall only say that I concur with my brethren in the opinion, that he is competent.

*On the merits, the case is clearly in favour of the appellant. I am of opinion, that the judgment of the circuit superiour court should be reversed, and that of the county court affirmed.

BROOKE, J., concurred.

TUCKER, P.

The first question in this case, refers itself to the power of a court of law to relieve the surety in a forthcoming bond, who has been absolved by the conduct of the creditor, in giving indulgence to the principal debtor, without the concurrence of the surety. The doctrine as to this matter, was first introduced into the courts of equity, and grew out of the principles of that court, which authorize the surety by bill quia timet to call upon the creditor to proceed against the principal. 7 Taunt. 126. To that court the jurisdiction has been hitherto mainly and wisely confined; and notwithstanding the exceptions, to which I shall presently advert, it seems to be well understood, that, as a general principle, the equity of the surety can only be asserted in a court of chancery. It would, indeed, introduce confusion and a total upturning of the established principles of the law', if such matter could be pleaded in discharge of a bond in a court of law; for an obligation under seal can only be discharged by force of an instrument of equal validity, or by payment and satisfaction. Hence, it has been solemnly decided, that it is not any defence at law to an action on a bond against a surety, that by parol agreement time has been given to the principal. Davey v. Prendergrass, 5 Barn. & Ald. 187; 7 Eng. C. L. Rep. 62. To this decision I altogether defer; as I think it would lead to much embarrassment, if the barrier between the two jurisdictions, in regard to this matter, was broken down. It is unnecessary to go into an exposition of these embarrassments here. Suffice it to say, that prudence requires *that the boundaries of the two jurisdictions must not be obliterated.

But though the courts, both in England and in this country have deemed this subject a matter peculiarly proper for equitable jurisdiction, yet the principle of relief to the surety, where indulgence has been given by the creditor, has long since been recognized and acted upon in courts of law, in reference to bail. The cases in which they have been relieved are numerous and uniform. Croft v. Johnson, 5 Taunt. 319; Brickwood v. Annis, Id. 614; Gernon v. R. E. Assurance, 6 Id. 379; Willison v. Whitaker, 7 Id. 53; Thomas v. Young, 15 East 617; English v. Darley, 2 Bos. & Pull. 61; Clark v. Devlin, 3 Id. 366. It is now the settled practice to enter an exoneretur of the bail, where it is shewn that the plaintiff has taken a cognovit from the principal, payable by instalments, or has made other arrangements with him, which tie up his hands from proceeding against the principal. But this is done upon the principle, that the recognizance cf bail, and the proceedings thereupon by scire facias, constitute part of Ihe process of the court in the original action, and are thus completely, and indeed necessarily, under the control and jurisdiction of the court. “The jurisdiction is founded upon a general authority in the court to see that an improper use is not made of its own records” — “If it sees, that an improper use is attempted to be made of the security which the party has given (in the course of the process) it immediately interferes.” 5 Barn. & Ald. 187; 2 Leigh 368, 9. But where the proceeding is independent, and forms no part of the pending action, the jurisdiction is not entertained. Thus, though the relief is given to the bail in recognizance against whom the party proceeds by scire facias, yet in an action of debt upon the recognizance, the matter cannot be pleaded in bar; Bulteel v. Jarrold, 8 Price 467; 3 Eng. Excheq. Rep. 422, S. C. And the reason seems to be clear; for though, where *the court has possession of the cause, it must act upon it through all its ramifications, yet where a separate and independent process is instituted, there is no necessity or pretext upon which it can assume an equitable jurisdiction.

Such being the well settled doctrine as to bail, it is not perceived, why it should not embrace the case of a surety in a forthcoming bond. That bond grows out of the proceedings in the cause, not less than the bail bond: it is a part of the process in the cause; it is not a distinct, separate, substantive contract, but it is dependent upon, and intimately connected with, the action itself; it is a branch of that action, and forms an integral part of it; it follows the fate of it, and as its existence grew out of it, so it falls to the ground when it falls. If the original judgment is reversed, the forthcoming bond becomes nought: if the original judgment be superseded, a supersedeas to a judgment on the bond is matter of course: if judgment be confessed on the bond, it operates a release of errors in the original judgment: if the execution on which it is taken is quashed, the bond is quashed also: if it be returned and filed, it has the force of a judgment, and execution may be awarded upon it, on a summary motion, instead of a regular action: and lastly, if the bond is irregularly taken, it may be quashed upon motion of either party. It is, indeed, not possible to conceive of a union more intimate and entire, than that which subsists between the forthcoming bond and the action in which it is taken; and every argument in favour of the exercise of jurisdiction in behalf of bail, applies with full force, I think, to the case of the surety in a forthcoming bond. In both cases, the court has possession of the cause, and in both, ought to exercise a like jurisdiction over all its ramifications. This jurisdiction is exercised by motion, or rule; and instances are not waiting in the practice of our courts, of this mode of proceeding. Thus, if the surety in the *boud has paid or otherwise discharged the debt; if he has been excused from delivery of the property by the operation of an injunction or supersedeas, Wilson v. Stevenson’s adm’r, 2 Call 213; Rucker v. Harrison, 6 Munf. 181, or if the principal’s property is taken and released, Bullitt’s ex’ors v. Winstons, 1 Munf. 209, the surety may have relief by motion, upon which the whole matter is gone into (as was done in the case last cited) and decided by the court, with or without the intervention of a jury, at its discretion. I am, therefore, of opinion with the county court upon the question of jurisdiction.

As to David Steele’s competency: I think he was a competent witness. The motion was for an exoneretur only as to the surety. The judgment could not, therefore, be for an exoneretur as to him. And, indeed, his testimony, though it amply proves an arrangement which exonerated the surety, by no means proves a satisfaction of the judgment which discharged himself. Unless, therefore, the idea of the counsel be correct, that the discharge of the surety would operate the discharge of the principal also, there can be no foundation for the opinion, that David Steele was interested in giving the testimony which went to exonerate Samuel. But it is not conceived to be true, that the exoneretur of one party, judicially pronounced, is a necessary release of all, others, upon the principle that a release to one enures to all; for if this were so, then in all cases where the surety is discharged by the creditor’s conduct, the principal would be discharged also, which cannot be pretended. Where, as in case of a forthcoming bond, which is always joint and several, one party is absolved by any other means than what the law deems a release, the right to recover is not impaired as to the rest. And, in this case, nothing I think can be more clear, than that an execution may issue on the forthcoming bond, with a direction that it shall not be levied upon Samuel Steele. This is precisely the course which would have *been the consequence, if he had obtained his absolution by application to a court of equity. As to the objection, that David would be liable to Samuel for costs &c. non constat that they will accrue; for if Samuel pays without execution, they will not; and the bare possibility of such a contingent liability is not sufficient to disqualify a witness. 2 Stark. Law Ev. part 4, 744-6.

Then, as to the merits: the county court, who had the witnesses before it, after hearing the evidence, of both parties, was of opinion, that a compromise and adjustment was made between the creditor and principal, without the surety’s knowledge or consent, by which the creditor agreed, for a sufficient consideration, to receive the sum of 250 dollars in discharge of the execution, to be paid in certain instalments; and an exoneretur was entered accordingly. What was the evidence before the county court we know not, and cannot know judicially, as there is no exception. 4 Rand. 189. We must, therefore, take it for granted, that it was right as to the facts; and if so, the conclusion of the law is inevitable. If, indeed, David Steele’s testimony had been incompetent, the judgment must have been reversed, as it might be presumed to have been founded, in part, upon his testimony. But as he is deemed to have been a competent witness, no such difficulty exists.

Upon the whole, I think the judgment of the circuit superiour court should be reversed, and that of the county court affirmed.

Judgment affirmed.  