
    David Fullam versus Joseph Valentine.
    Where the defendant was arrested on mesne process and gave bail, and the plaintiff, before judgment was rendered, covenanted not to arrest him on any writ or execution within four months, it was held, that the bail was not thereby discharged, for the covenant was only collateral to the action and did not deprive the plaintiff of the power to arrest the defendant, nor the bail of the power to surrender him within the four months.
    This was a writ of scire facias commenced on February 26, 1830, against the defendant as bail of James Hamilton.
    In a case stated it appeared, that on January 16, 1829, the plaintiff sued out a writ against Hamilton, returnable to the Court of Common Pleas at April term 1829 in Suffolk, upon which Hamilton was arrested, and Valentine executed a bail bond as his surety. The condition of the bond was in the usual form, that if Hamilton should appear at the Court of Common Pleas to answer to Fullam in a plea of the case by him commenced to be heard and tried at the April term 1829, and should abide the final judgment thereon, and should not avoid, the obligation should be null, otherwise &c.* The writ against Hamilton was entered at April term 1829, and there being no appearance for him, he was defaulted on the second day of the term, viz. April 14, 1829. On the "20th of April, Fullam executed and delivered to Hamilton an instrument under seal, as follows : — “ Boston, April 20, 1829. I hereby covenant and agree with James Hamilton, that I will not molest him or cause to be arrested his body, on any writ or execution, nor will I in any way do any thing by which he may be arrested or exposed thereto for and during the term or period of four months from the date hereto annexed.” After this, at April term, the action was, on motion of Fullam, continued for judgment to the then next July term ; and thence to the then next October term it was of course further continued by order of court, Fullam having made no motion for judgment; and at the October term he took judgment. An execution was issued on this judgment on November 30, 1829, and soon after was delivered to a deputy-sheriff for service, the same being returnable on January 5, 1830 ; and the officer returned upon the execution, when and where it was returnable, that he had made diligent search for the goods and lands and for the body of Hamilton, and could not find either within his precinct, and so returned the execution in no part satisfied. The judgment was still wholly unsatisfied, and no alias execution had been taken out.
    
      March 19th.
    It further appeared, that the Court of Common Pleas, at the return term April 1829, continued in session till the 8th of May, and that the juries were discharged on the day previous, being the seventeenth day of the term.
    If, in the opinion of the Court, the defendant, by reason of any of the facts above mentioned, was not liable on the bail bond, the plaintiff was to be nonsuited ; otherwise the defendant was to be defaulted, and judgment to be rendered for the plaintiff for the amount of his judgment against Hamilton, with interest and costs ; unless the defendant had a right and should be able to surrender up Hamilton before final judgment in this suit.
    Morey, for the defendant.
    Whenever a creditor gives time to the principal debtor, or varies the legal relations of the parties, he discharges the surety. For this purpose, it is not necessary that the new agreement should absolutely prevent the creditor from enforcing his original right; it is sufficient if he cannot do so without a violation of the new contract. The bail in the present case, had a right to expect that the action against the principal would take the usual course , that the plaintiff would have taken judgment at the April term, and that his execution would have been returnable at July term 1829, whereas it was not returnable till January term 1830. The plaintiff had parted with his power of arresting the principal, for four months, and the bail could have no greater power than the creditor had. If the debtor had been committed during that period, either by the creditor or by the bail, the Court would have discharged him upon a writ of habeas corpus. The Court, upon application to it as a court of chancery, would have enjoined the creditor and the bail not to commit the debtor. In regard to contracts of the .creditor with the principal which will discharge the surety, he cited Chitty on Bills, (6th edit.) 291 ; Orme v. Young, 1 Holt’s N. P. Rep. 84 ; English v. Darley, 2 Bos. & Pul. 61 ; Moore v. Bowmaker, 6 Taunt. 379 ; Clark v. Devlin, 3 Bos. & Pul. 363; Rathbone v. Warren, 10 Johns. R. 595 ; Schrœder on Bail, 158, 159 ; Bowsfield v. Tower, 4 Taunt. 456; Melvill v. Glendining, 7 Taunt. 126. To show that on this subject a court of law will be governed by the same principles as a court of equity, he cited King v. Baldwin, 2 Johns. Ch. R. 554 ; S. C. 17 Johns. R. 384 ; Baker v Briggs, 8 Pick. 128, 129.
    
      F. Dexter urged,
    in behalf of the plaintiff, that the contract of the bail is, that the principal shall not avoid in one year after judgment; and consequently that he has no concern with a contract for delay or for any other purpose, made between the creditor and the debtor, before judgment is rendered, provided such contract is not entered into with a fraudulent design to injure the bail; Stevens v. Bigelow, 12 Mass. R. 436 ; Briekwood v. Annis, 1 Marsh. 251 ; Hodgson v. Nugent, 5 T. R. 277 ; — that the agreement in the present case was not such as to prevent the bail from surrendering his principal; that the. plaintiff had never deprived himself of the power to arrest the principal, the agreement being merely collateral; Perkins v. Gilman, 8 Pick. 229 ; Dow v. Tuttle, 4 Mass R. 414 ; that in no case is a surety discharged by an indulgence to the debtor, unless “ it ties the hands of the creditor,” or in other words, unless the creditor gives the debtor a legal defence, for the time being, against an action ; Fulton v. Matthews, 15 Johns. R. 433 ; King v. Baldwin, 2 Johns. Ch. R. 560; Rees v. Berrington, 2 Ves. jun. 540 ; Boulthee v. Stubbs, 18 Ves. 20 ; Samuell v. Howarth, 3 Meriv. 272 ; Buchanan v. Bordley, 4 Harr. & M‘Hen. 41 ; Oxford Bank v. Lewis, 8 Pick. 458 ; M'Lemore v. Powell, 12 Wheat. 556 ; Hunt v. Bridgham, 2 Pick. 581 ; Archer v. Hale, 4 Bing. 464 ; Cope v. Smith, 8 Serg. & R. 110 ; Bank of Ireland v. Beresford, 6 Dow, 238 ; and that if the delay granted is not longer than the ordinary time necessary for obtaining judgment, the bail, even.though prevented from surrendering h:s principal, is not therefore discharged ; and here the principal, by appealing to this Court, might have put off the judgment until November 1829 ; Croft v. Johnson, 5 Taunt. 319 ; Stevenson v. Roche, 9 Barn. & Cressw. 707 ; Hallett v. Holmes, 18 Johns. R. 28.
    
      April 1st.
   Shaw C. J.

delivered the opinion of the Court. The facts stated furnish no legal ground of defence to this action. The rights of the bail, in regard to the principal, were not affected by the agreement in the case. It is unquestionably true that any release or contract, between the obligee and the principal obligor, which discharges the principal, discharges likewise the surety. So the same result follows, if it affects the rights of the surety, as by changing the nature or terms of his liability. But here we think there was nothing in the agreement relied upon, to prevent the bail from exonerating himself from all liability as well after this agreement as before, either by a surrender of the principal in court, according to the course of the common law, or by a surrender to the county gaol, conformably to St. 1817, c. 146. The rights of the bail therefore were not, at any time, impaired, or his liability altered by the operation of the agreement. The ground upon which we rely is, that the agreement was an executory contract, collateral to the action, which is not particularly referred to ; that the only remedy for the breach of it would have been an action to recover damages, and that it could not be specifically enforced sc as to prevent the plaintiff from arresting the principal. The case of Perkins v. Gilman, 8 Pick. 229, is in point, where it was held that a covenant no! to sue, for a limited time, that is, in effect, a covenant not to serve any legal process, was a collateral agreement, the breach of which might lay the foundation for an action, but which could not be pleaded as a bar, or otherwise restrain the plaintiff from pursuing his legal rights by an action.

Such a contract stands upon grounds very different from those agreements made in court, by parties or their attorneys, in" the progress of a cause, and entered upon the minutes of the court, or put in writing and filed. Such agreements are deemed to be a part of the legal proceedings had before the court under its inspection and authority, affecting directly the rights of the parties ; and to be availing and effectual, they must from their nature be specifically executed. Such specific performance will be enforced by the court, under the general authority which it holds by the common law, to regulate and order the course of legal proceedings in all cases before it, with a view to secure to all parties their just rights. In regard to one class of such agreements, a provision is made by statute, that agreements for waiving pleas, amendments and making new pleas in the Supreme Judicial Court, made in the Court of Common Pleas shall be carried into effect in the appellate court. St. 1784, c. 28, § 8.. This was probably designed to give a sanction and security to the right of appeal, in case of fictitious demurrers, when they were first in use to facilitate appeals, and was founded upon some doubt whether an agreement in the court appealed from, would be recognised and carried into effect in the appellate court.

But another ground of argument was taken for the plaintiff, which is entitled to great consideration, which is, that supposing the agreement was made with a particular reference to this action, and was in effect an agreement not to take out an execution for the time therein limited, still that it was a stipulation for no further delay than the principal might have obtained, by asserting his own rights. The agreement was made during the April term of the Court of Common Pleas, and stipulated not to arrest the defendant for four months This court must take notice of the terms, and the course of practice in the court below. We know that a party there has a right to appeal, in causes where the damages demanded exceed $ 100. Had the plaintiff insisted on a trial at that term, and obtained a verdict, the defendant might have appealed as matter of right, with or without an intent ultimately to make a defence, and such appeal would have carried the cause to the November term of this Court, more than four months. The plaintiff agreed to no longer delay than he was compellable to submit to by the operation of law and the course of practice. Had there been simply an agreement in court, that the cause should be defaulted and continued to October term for judgment, could there have been the least ground to contend that the bail would be discharged ?

It Is said, however, that it appears by comparing dates, that the defendant had been defaulted, before the agreement was entered into, and that the plaintiff might have had judgment and execution at the first term. But we think this is not shown by the case. To many purposes, all the proceedings of the same term may be considered simultaneous. By St. 1784, c. 28, § 7, where a defendant defaulted at the return term shall come into court at any time before the jury is dismissed, and pay &c., then the court may admit the defendant to the same day in court as if he had not been defaulted. Here the agreement was made a considerable time before the jury was dismissed, and whilst the defendant had ample time to apply to the court to take off the default and permit him to go to trial. Considering it therefore as simply an agreement for delay in the cause, we cannot perceive that the liability of the bail was enlarged or prolonged, or that the rights of the bail were affected by it. In a recent case it -was held, that by talcing a cognovit from the principal, the bail is not discharged, unless by the terms of it he is to have a longer time for the payment of the debt and costs, than he would have if the plaintiff had proceeded regularly in the action. Stevenson v. Roche, 9 Barn. & Cressw. 702. If therefore the agreement of the plaintiff with the principal defendant did not induce him to continue the cause in court longer than the defendant could have kept it there, had there been no such agreement, the bai were not injured and have no ground of complaint.

The result is, that according to the agreement of the parties the defendant is to be defaulted, and unless he can surrender the principal during the present term, there must be judgment for the plaintiff. 
      
       See Greely v. Dow, 2 Metc. 176.
     
      
       See Nichols v. Norris, 3 Barn. & Adol. 41; Bowmaker v. Moore, 1 Daniel, 264; Hulme v. Collins, 2 Sim. 12; Price v. Edmunds, 5 Man. & Ryl. 287; Johnson v. Boyer, 3 Watts’s (Penn.) R. 378.
     