
    COURT OF APPEALS,
    JUNE TERM, 1797.
    Buchanan vs. Bordley.
    Appear from the court of chancery.. It appears by the bill which was filed the 30th of July 1793, that Buchanan, the appellant in this court, and complainant in the court below, did, on the 12th of September, 1763, as the security for one Benedict Swope, become bound in a bond to Stephen Bordleu, whose executor the appellee was, in 360?. sterling, conditioned for the payment of 152?. 16s. lí?. sterling, on the 1st of Novemher then next. Tiic bill charges, that the defendant’s testator, and himself as executor, indulged the principal, ,.-¡10 jmg pccome insolvent, and that a judgment had been obtained at May term, 1793, against the complainant. That there is a credit endorsed on the bond ou the 14th March, 1767, which is not allowed; and at the same time bonds were placed in the defendant’s hands in part satisfaction of the bond entered into by Swope and the complainant. That the complainant was never applied to for payment until May, 1778, when lie expressed his disapprobation of the indulgence which had been given to Swope, and requested that the most speedy and compulsory measures should be adopted to compel payment of the balance. That the defendant promised that he would not indulge the said Swope longer, but would use such steps as to compel immediate payment. That the complainant had no further information whatsoever l’elative to the said bond, or any application for payment, until the year 1790, or thereabouts, before which time the said Swope had removed out of the state into the state of Kentucky. That no steps were taken to compel payment of Swope, although he bad resided in this state several years after 1778, and was well able to pay the debt. That he heard nothing of the bonds delivered to the defendant in part satisfaction of the debt, until about three years ago, when they were barred by the act of limitations, at which time the defendant, notified that he had received no part of them. Prays to he discharged from the judgment, or otherwise relieved in the premises, &c. and an injunction, Ac.
    Akswur — acknowledges the receipt of the sum stated to be paid in March, 1767; admits the bonds were lodged for collection, but they were never received as a payment, nor did he conceive himself authorised to bring suits on the bone’s, or any of them, nor was ever he requested so to do; that they were to be delivered when called for by the complainant; that they were never assigned to the defendant; that they were left with the defendant as a matter of convenience to the complainant and the obligors, as the latter resided at a considerable distance from the former; that no part has been received. Denies the. complainant ever expressed any dissatisfaction at the indulgence given to Swope, or ever requested any measures might be taken against Swope.
    
    The case was submitted on bill and answer.
    Hanson, Chancellor. The indulgence granted to a principal, which is to discharge a surety from liis engagement, must be of that kind whereby the nature of the contract is changed, or whereby the creditor, without the consent of the surety, and by his own act, puts it (Hit of his own power to enforce the payment of the debt by the principal. It does not mean a mere forbcarance to sue the principa!, which a court of equity, on application of the surety, might direct him to do, on pain of foregoing his claim against the surety.
    As little applicable to this case are the cases respecting old state debts.
    The complainants, as it appears from the answer, which is admitted, had no reason to believe that the debt had ever been discharged. With respect to the bonds delivered to the defendant, it appears from the answer that the defendant had no authority to sue, and that he never undertook to call upon the obligors, or did any act whatever from which the complainant might suppose lie had considered himself bound to discount the amount of the said bonds.
    It is a consideration of some importance in this cause, that by the laws of Maryland the complainant might have made himself the creditor of the principal, and might then have instituted a suit in his own name. In short, it appears to the .chancellor, that all this court can with propriety do for the complainant is to exempt him from paying the defendant’s costs, in consideration of bis having had a probable ground for application for relief.
    It is thereupon, this 14th day of February 1795, adjudged, &c. that the injunction heretofore issued in this cause be dissolved, provided that the defendant be not allowed to levy more against the complainant, by his execution at law, than will remain due on the judgment, after deducting the payment of 4sl. 16s. 10d. sterling, paid on the 14th March 1767, &c«
    The complainant' appealed to. the court of appeals.
    
      Winchester, for the appellant.
    
      Cooke and Key, for the appellee.
   The Court or Apireáis, at this term, (June 1797) affirmed the decree of the court of chancery.  