
    
      Simeon Parnell, for Robert Stinson, vs. Edward Price.
    
    A surety will not be discharged from his contract, because of an agreement for indulgence between the creditor and principal debtor, unless the agreement be obligatory on the creditor, and be for a certain or definite period.
    
      Before Frost, J. at Chester, Spring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action on a sealed note, made by Samuel Price, the principal, and Edward Price and Nathaniel Holly, sureties, dated 28th January, 1842, for $358, payable to Simeon Parnell, the 25th Dec. 1843. The note was proved.
    The defence was, that the defendant was discharged by Stinson’s indulgence of the principal debtor. Samuel Price proved that in January, 1844, Stinson wrote to witness that he wanted payment of the note. The witness sent to Stinson a promissory note for $25. A short time afterwards, the witness saw Stinson, who said he had received the note, and would wait for 12 months. Stinson said that note would give him interest at the rate of 12 per cent. After five or six months, Stinson returned the note to witness, and insisted on leaving it; saying Holly meant to dispute payment of the joint note on account of it. W. B. Holly, son and executor of Nathaniel Holly, proved, that in the spring of 1844, he was present when his father said to Stinson, why do you not sue Samuel Price ? who laughed. N. Holly said, I suppose if you get $20 from me, you would not sue me; and Stinson replied, Samuel had sent him $25, and he had let him go. On the same occasion, Stinson said he had written to Samuel Price, if he did not come down he would sue, and Samuel sent a note of $25, and he did not sue. It was proved that Edward and Samuel Price were sued to the next fall court; judgment was also recovered against Holly.
    It was proved by the plaintiff, that the note had been given for the purchase of a tract of land. The plaintiff proved, on the cross-examination of the defendant’s witnesses, that the land and all the property of Samuel Price had been sold under execution, and Edward Price had got land, horses, negro, and all the property of Samuel Price, and that the purchases by Edward Price were credited on a judgment confessed by Samuel Price to his mother. In the course of this cross-examination, the evidence disclosed by the plaintiff, was objected to by the defendant; but it was admitted in support of an alleged charge of fraud— and that Holly, and Edward Price and Samuel, had contrived the sending of the note to Stinson, to get the sureties discharged, after Samuel had transferred all his property to Edward Price. As pertinent to the charge of fraud, the testimony was admitted. It appeared, however, in the further examination of the defendant’s witnesses, that the sale of Samuel Price’s property had been fairly made, and appropriated to other executions than that of his mother ; about two hundred dollars of the sales only having been applied to that.
    The jury were instructed that a contract or agreement by a creditor with the principal debtor to forbear suit for a definite time, would discharge the surety — and it was submitted to them, on the proof, to determine whether the plaintiff had made an agreement with Samuel Price, whereby he was restrained from suing Samuel Price for a twelve month; or whether the note was sent by Samuel Price to Stinson, and received by Stinson, as a gratuity or bonus, merely influencing, but not obligating, Stinson not to sue. If the proof shewed an agreement, they were instructed to find for the defendant — but if it shewed that the note was offered and received only as a bribe, to influence Stinson not to sue, they should find for the plaintiff. They were expressly advised that the plaintiff had not succeeded in proving the fraud alleged. The jury found for the plaintiff ”
    
      The defendant appealed, and now moved for a new trial, on the following grounds :
    1st. Because the presiding Judge erred, in permitting evidence to be given of the sales of the property of Samuel Price, and that the land for which the note sued on was given, had been bought by the defendant — and of the application of the proceeds of the. sales of said property; all of which evidence was irrelevant to the issue, and calculated to prejudice and mislead the jury, and therefore incompetent.
    
      2d. Because the presiding Judge erred in stating to the jury, as matter of law, that unless the note of twenty-five dollars, received by the plaintiff from Samuel Price to obtain indulgence, was received by him under a stipulation to wait a certain definite time, the defendant was not thereby discharged from his contract as surety of the said Samuel Price.
    3d. Because the proof being full and uncontradicted, that the plaintiff did receive a note of twenty-five dollars from Samuel Price, to procure indulgence, and that the plaintiff, in consequence thereof, did agree to wait with the principal, and that he did extend indulgence to him, in consequence thereof — the verdict of the jury was contrary to law, and the facts of the case.
    
      Gregg, for the motion, cited Pitman on P. & S. 167.
    
    Rutland, contra.
   Curia, per

Frost, J.

The reception of the evidence, whieh is made the subject of the plaintiff’s first ground of appeal, was warranted by the proof, which gave color to the plaintiff’s charge of a concert between the parties to the note, to defeat the plaintiff’s recovery, by a transfer of all S. Price’s property to the defendant, and sending the note to the plaintiff to discharge the defendant. The principle on which the surety is discharged by an agreement between the creditor and the principal debtor, to extend the time for the performance of the contract, proves that the indulgence must be for a certain or definite period. The creditor can do no act to prejudice the surety, or to increase the risk of loss incurred by his contract. The surety’s liability is increased by extending the time for the performance of the contract, provided it be for a certain time. Then, until the period of indulgence expires, the creditor is prevented from using those means, for seeming the performance of the contract, which, under it, he might pursue, and which circumstances might render necessary, and good faith to the surety require to be enforced. Nor in such case can the creditor, without a fraudulent evasion of his agreement, accept payment from the surety, and thereby transfer to him a right of action against the principal debtor. But if no term of indulgence be stipulated, the creditor may enforce the contract at his discretion. In Orme vs. Young, Holt N. P. C. 84, it is laid down, that the forbearance and giving of time, which will discharge the surety, must be “ an engagement which ties the hands of the creditor. It is not negatively refraining — (not merely) not exacting money at the time — but it is the act of the creditor, depriving himself of the power of suing, by something obligatory.”

The motion is refused.

Richardson, O’Neall, Evans, Butler and Ward-law, JJ. concurred.  