
    Dozier vs. Lea.
    1. Parties to an instrument under seal, can set up no defence at law arising out of tho relation of principal and surety, if the fact of suretyship does not appear upon the face of the paper; for the parties are in the estimation of the courts of law all principals, and cannot be permitted to aver the contrary.
    2. Being thus far all principals, a contract for delay made with one, can in legal contemplation, do no injury to the others; but the parties really injured by such contract from occupying in fact the relation of surety for the principal, must seek relief in a Court of Chancery. See Deberry vs. Adams, 9 Yerg. Hep. 52; and Sprigg \s. The Bank of Mt. Pleasant, 10 Pet. S. C. Rep. 237.
    Philip Dozier, for the use of Peter L. Dozier, brought his action of debt, in the Circuit Court of Gibson county, against William W. Lea, on the following instrument:
    “Two months after date we or either of us, promise to pay to Philip Dozier, four hundred dollars for value received, this 21st September, 1837.
    JOHN PAGE, [Seal.]
    WM. C. PAGE, [Seal.]
    WM. W. LEA, [Seal.]
    The defendant plead payment, and two special pleas, the substance of which is given in the opinion of the court. To these last pleas, the plaintiff demurred. The demurrer was overruled, and upon trial by jury, William Fitzgerald, Judge, presiding, a verdict was found for the defendant. The plaintiff appealed.
    The records do not show who appeared for the parties.
   Turley, J.

delivered the opinion of the court.

This is an action of debt by the plaintiff against the defendant on a bill single for the payment of $402. This bill was executed jointly by defendant and John Page and William Page. The defendant pleaded payment, and two special pleas, which are in substance that he executed the note as surety of John Page, and afterwards the plaintiff, by a new contract with John Page, prolonged the time of payment, in consideration of additional security by deed of trust, which was given, and that this was done without his knowledge and consent.

To these two pleas, there was a demurrer, which was overruled by the court, and upon trial before a jury, a verdict, under the instruction of the court, was rendered in favor of the defendant, and there was judgment accordingly, to reverse which this writ of error is prosecuted. We think the court erred in overruling the demurrer to the pleas. ' The defence is a good one at law upon simple contracts, but can only be made available in a court of chancery, when the contract, as in this case, is under seal.

The seal estops the defendant at law, and he therefore can set up no such defence arising out of the relation of principal and surety; for the parties are in the estimation of the courts of law all principals, and they cannot ,be permitted to aver to the contrary. They being thus far all principals, a contract for delay made with one, in legal contemplation, does no injury to the others, but, as has been observed, the parties really injured by such contract, from occupying in fact the relation of surety for the principal, must seek relief in a court of chancery. The judgment of the Circuit Court will therefore be reversed, and the case remanded for a new trial upon the plea of payment.  