
    Deberry vs. Adams.
    Where a party is bound as surety for another in an' instrument, under seal, and the fact of suretyship does not appear upon the face of it, he cannot at law rely as a defence, upon the fact, that the creditor by contract with the principal agreed to indulge and give him further time for payment.
    The indulgence gianted to a principal which will, discharge a surety, must be of the kind by which the nature of the contract is changed, as where lhe creditor, without the consent of the surety, puts it out of his own power to enforce payment of (he debt by the principal.
    Where ^judgment is rendered finally against two, and the creditor by agreement with one delays the execution, a plea by the other to a.sr¿re facias upon the Judgment, lhatkhe was only the surety, and that the original agreement upon which the judgment was founded, was not under seal, and that by agreement, time was given to the principal and an execution agreed not to be sued out, is bad upon demurrer. <*• *
    
    Deberry sued out a scire facias against Henry H. Marable and William Adams, which set forth a judgment obtained by him against Marable and Adams, for two hundred dollars debt, and twenty-three dollars damages, for detention of that debt, and costs, &c. and that no executiQjrfed issued thereon within a year and a day, after its r,ei|||lpBPand an execution was prayed, &c. In bar of which, Adams pleaded that he was security of Marable on the pote or instrument upon which said supposed judgment was obtained, and that, after said judgment was obtained, the said plaintiff agreed with the said defendant, Marable, who was principal, thatsaid judgment should lie, and execution should not be taken for a long space of time after said judgment was obtained, (to wit:) for the space of-months, which said agreement hetwSen the said plaintiff and said defendant, Marable, was contrary to the assent and agreement of defendant, Adams; and the plea further avered that duringthe'time given by the plaintiff to the defendant, Marable, the latter became insolvent- and unable to pay the debt, and that Marable was solvent and well able to-pay the judgment when obtained, and that it could have been collected, if an execution had been sued out. To this plea a demurrer was filed by Deberry, which on argument, was overruled by the circuit court, and judgment given in favor of Adams; to reverse .which Deberry prosecutes this writ of error.
    Turner, for plaintiff in error.
    
      The plaintiff insists that judgment upon the demurrer should have been given in his, instead of defendant’s favor.
    1st. Because the plea does not aver a contract between the plaintiff and Marable for any particular time of delay, nor does it aver any consideration for the contract.
    2nd. If the contract be not binding, mere delay in not sue-ing, or not enforcing the collection of the money from the principal, will not discharge the security. Johnson vs Searay and Marshall, 4 Yerg. Rep. 182.
    3rd. The plaintiff should have avered in his plea that the original contract upon which the judgment was rendered, was a simple contract, or, if under seal, that the securityship appeared upon its face. At law, if several persons are bound under seal, and appear by the terms of their engagements to be principals, they are estopped from proving that they are merely securities, and cannot therefore, at law, use in defence, matter which would entitle them-to relief in equity. Theobald on Surety, 117: 1 Law Libr. 69: same principle, 1 Law Libr. 77: giving time to the principal is no defence to an action against a surety where he is bound by a specialty. 3 Starkie 1837, 90. Where the estoppel appears upon the face of the pleadings, the party may demur, 1 Chit. PI. 592'-
    
      Thompson, for defendant.
   Reese J.

delivered the opinion of the court.

There are many decisive objections to the above plea. 1st. The plea does not state the nature of the instrument upon which the original liability, and the relation of principal and surety, were founded, whether it were a specialty, or joint and several, or showing otherwise the fact of suretyship on its face, or whether it was a simple contract. For if the relation of principal and surety were created by a specialty, which upon its face did not show that relation, the facts of this plea would not at law, it is believed, if pleaded before the rendition of the original judgment, have barred a recovery upon the specialty. For it is said to be no defence at law to an action on a bond against a surety, that the obligee by a parol agreement, has given time to the principal, (see 5 Rand. R, 187.) The principle is maintained in Theobald’s Treatise on Principal and Surety, 117, that at law, if several person's' are °k%ecl under seal, and it appear by the terms of their engagements to be principals, they are estopped from proving themselves to be essentially sureties, and therefore even such as are essentially only sureties, cannot at law, use in defence matter which might entitle them to relief either partial or entire in equity where there is no estoppel, but where they are permitted to prove themselves sureties.

But secondly; we are of opinion, that if the plea had avered that the original liability was by simple contract.; or by specialty, showing upon its face the suretyship of Adams, still when such liability became merged in a judgment, the plea to a scire, facias, with an averment which looked to the state and relation of the parties, and the facts before the judgment, would not in a court of law be valid. This results, a fortiori, from the principle first stated.

Thirdly; we are inclined to the opinion that the plea should have stated a consideration for the agreement between the plaintiff in the scire facias and the defendant, Marable. If it be said that the term “agreement” involves a consideration, it may be answered that when in pleading it is necessary to aver a consideration, it will not do to rely upon the vis termini of the word “agreement.” In a respectable authority, it is laid down as a rule, that the indulgence granted to a principal which will discharge a surety from his engagement, must be of that kind by which the nature of the contract is changed, as when the creditor without the consent of the surety, and by his own act, puts it out of his own power to enforce payment of the debt by the principal. See 4 Har. and M’Hen. 41. See also, King vs. Baldwin, 17 John. 389; 2 Pick. 614: 1 Desau. 58, 315: 4 Yerg. 182. It may not be a circumstance which ought to change, perhaps, the law of principal and surety, as recognised in England and several States of our Union, that by a statute of our own, the surety has a prompt and effectual remedy against his principal by motion so soon as a judgment may bo rendered against himself. He need file no bill; but if the creditor by contract, or mere indulgence, omit to sue out execution, the surety may take his judg ment over against his principal, and sue out execution himself. The existence of such a statute will at least deprive a surety of much of our sympathy, whose complaint is founded upon the indulgence given to his principal after the rendition of judgment against them, if the rule of law, should upon the sueing out of a scire facias against him to revive such judgment, hold him responsible for the payment of the money by the issuance of an execution. Let this judgment be reversed, and this court, proceeding to give such judgment as the circuit court ought to have given, sustain the demurrer of the defendant, Adams, and let an execution be awarded against him upon said scire facas.

Judgment reversed.  