
    Joshua Green vs. John L. Lake and Jonathan Tarbell.
    Law. No. 20,891.
    £ Decided January 8, 1882.
    
      t The Chief Justice and Justices Oox and James sitting.
    1. In the District of Columbia a printed seal at the end of the signature is sufficient to make the instrument a specialty.
    2. Where parties sign an instrum-mt under seal jointly or jointly and severally, they sign it as principal debtors, and parol evidence will not be received to show that one of them signed as surety only and' that an extension having been given the principal, the surety was thereby discharged. But whether it would he otherwise if the alleged surety is prepared to show that he has been actually injured by the extension, queen.
    
    3. A contract between a creditor and a principal debtor for forbearance for a limited time, is a discharge of the surety only when the agreement to forbear is binding on the creditor, if, therefore, the agreement is without consideration, or otherwise not binding, the forbearance is no defence.
    4. The burden of proof is on the surety to show that an agreement to-forbear is a valid and binding one upon the creditor.
    5. If the creditor simply agrees to extend the time indefinitely on payment of the legal interest, that is no more than he would be entitled to receive without any agreement, and as he receives no new consideration, such a promise is not binding, but it is otherwise if, in consideration of the extension, the interest were paid in advance, for the creditor in such case, gets something more than he would be entitled to receive as a matter of course.
    6. An agreement to forbear in consideration of an executory promise to pay usurious interest in the future, is void under the statutes of usury, nor does it make any difference that at the expiration of the period of forbearance the usury was actually paid by the debtor.
    7. Where the surety sets up the defence that the creditor had extended-the time of the principal, the creditor is not estopped, by the fact that he has received the consideration for which the extension was made, to reply that the consideration was an illegal one.
    8. The court will presume, in the absence of evidence to the contrary, that the usurious interest was agreed to be paid at the expiration of • the period of forbearance.
    9. The legal part of an undertaking can be enforced if the consideration for it is entirely legal, hut an undertaking is void if any part of its consideration is illegal. Thus if a man receive a legal consideration for a promise to do a thing, part of which is legal and the other illegal, he will he compelled to carry out that part of his agreement which is legal;, but if such a promise is not given for money or other value received, but in consideration of another executory promise, such as a promise to forbear, the latter is vitiated by reason of the partial illegality of the executory promise given as its consideration and the agreement to forbear is, therefore, not binding.
    STATEMENT OE THE CASE.
    Motion for new trial on exceptions.
    This was an action of debt brought by the surviving-partner of J. & T. Green, against John L. Lake and Jonathan Tarbell, based on the following promissory note given by them :
    
      “$1,000. Jackson, Miss., Nov. 18,1875.
    “ Sixty days after date, we, or either of us, promise to pay J. and T. Green, or order, one thousand dollars, value received.
    “J. L. Lake, Jr. [seal.]
    “J. Tarbell. [seal.]”
    The words “seal” opposite the names of the defendants, a,nd the brackets enclosing those words, were in print.
    Besides two special counts on the note, the declaration contained the common counts appropriate to the action.
    The defendant Tarbell pleaded the general issue, and the following special plea :
    “ And for a further plea to the said first and second counts of said declaration, the said defendant says that he received no consideration for the making and delivery of said note or writing obligatory in said declaration mentioned, and never received any benefit therefrom, but executed and delivered the same as the surety for the said John L. Lake, jr., and the considei’ation therefor, if any, passed wholly from said J. & T. Green to said Lake, of all of which the said J. & T. Green had notice at and before the execution and delivery of said note to them. And said defendant says that after the said note or writing obligatory became due and payable, according to its tenor and effect, by an arrangement and agreement made between the said J. & T. Green and the said John L. Lake, jr., without the knowledge or consent of this defendant, the said J. & T. Green, for a valuable consideration, extended the time for the payment of said note or writing obligatory for sixty days from the time it became due, according to the terms thereof, without the knowledge, concurrence or consent of said defendant. And so said defendant says that he is absolved from all liability on said note or writing obligatory, and the said plaintiff is barred of all recovery against him thereon, and this he is ready to verify, &c.”
    Issue being joined, the plaintiff, on the trial, offered in evidence the note, the signatures of which were admitted. It was also shown that the statute of Mississippi in force at the time of the execution of the note, and at the time of the trial, provided that a scroll should be equivalent to a seal, and that the Supreme Court of that State had twice decided that the word “ seal ” printed opposite a name was equivalent to a scroll. Plaintiff having rested his case, the defendant Tarbell was then sworn as a witness in his own behalf and testified that he signed the note at the request of Lake, on his representation that he desired to have it discounted— which was subsequently done by plaintiff — and that he signed •as surety for Lake, and not as principal, and that he received no consideration for signing, and no part of the proceeds of the discount, nor any part of the consideration for which the note was given ; that he never spoke with the firm of J. & 'T. Green, of which plaintiff was the surviving partner, or their cashier, about the note, at any time or place, either before or after the giving of the same ; that he had no notice or knowledge from them, or from Lake, or from any ■other person, of any extension of time for the payment of the note, and never assented to any such extension.
    The defendant Lake was then sworn, and testified that the note was executed by the defendant Tarbell as his surety; that the plaintiff knew this at the time, and that the same was discounted about the time of the date thereof at the banking-house of J. & T. Green ; that the proceeds of the ■discount were passed to the credit of witness in said bank, he having there at that time a deposit account ; that Tarbell | received none of the proceeds of the discount, and that plaintiff' knew this. Defendant Lake further testified that the payment of the note was extended for sixty days from its maturity, by virtue of an agreement between himself and the cashier, without the knowledge of Tarbell, and that the following endorsement was then made on the note by the cashier : “ Extended to March 20, sixty days’ interest due ; ” that the time of the payment of the note was, on another 9 occasion, and without the knowledge of Tarbell, extended 9 indefinitely ; that the only consideration for the respective extensions of the note was interest at the rate of one per cent, per month, paid, or to be paid, by witness to plaintiff; that witness did not remember whether the interest was paid at the time the extensions were granted, or after the periods of extensions had expired ; that this agreement and the endorsement for the extension of sixty days was made about the time the note became due ; that he made several paymepts of interest at different times, and paid in all about $175 as such, up to July 1st, 1877.
    The defendant, then, proved that, the following was the law relating to 'interest and usury in force in the State of Mississippi at the time the note was given and the alleged extensions made :
    “The legal rate of interest on all bonds, notes, accounts, judgments and contracts shall be six per cent, per annum ; but contracts may be made in writing for the payment of a rate of interest as great as ten per cent, per annum. And if a greater rate of interest than ten per cent, shall be stipulated for, in any case such excess shall be forfeited, on the plea of the party to be charged therewith.”
    This was all the evidence offered on the part of Tarbell, who thereupon rested his case. During the giving of the above testimony, plaintiff’s counsel, at the proper time, objected to all testimony tending to -show that the defendant Tarbell had signed the note in the capacity of surety. But the court ■ overruled the objection, exceptions being taken.
    The plaintiff’then testified in rebuttal, without objection, that “ the time of the payment of the note was not voluntarily extended by J. & T. Green ; as it was not paid, it was continued against the wish of the holders, because neither party would pay.” It was never agreed to extend the note. When the parties claimed not to be able to pay it, they at one time paid interest, and Lake promised to pay at some future time, which is the full meaning of the memorandum “ Extended.” Not that they did not constantly look to the parties and urge payment during the interim, but, in consequence of Lake’s promise, filed the paper away at .that date as the earliest date they could hope to collect in, and with the intention of especially urging the fulfilment of said promise. It was put off because they could not collect, and for no other reason. He (Tarbell) did know that the note was not paid, and that he would be expected to make it good, and he knew of Lake’s promise, and was anxious to have it carried out.
    On cross-examination,plaintiff said : “The note sued upon was given for borrowed money, and the money was paid to J. L. Lake, the party who negotiated the note. The note was not extended in the sense of an agreement with any one, but only laid over because it could not be paid, and this was done with the knowledge of Tarbell; it was generally so understood in the house, although personally I did not- converse with Tarbell on the subject, as such course is left to our cashier, W. H. IT. Green, usually.”
    And plaintiff then offered in evidence the deposition of the cashier, W. IT. IT. Green, which was admitted without objection, in substance as follows : It (the note sued on) was never extended, but was held, and time of payment delayed from first maturity till the present writing, against the will of the firm. Tarbell knew the note had not been paid, and asked for time for Lake to pay it. I spoke to Tarbell several times about the matter, and .he seemed anxious that Lake should pay the note, &c.
    The testimony on both sides being thereupon closed, plaintiff’s counsel requested the court to instruct the jury that ■on the whole evidence the plaintiff was entitled to recover the amount claimed against the defendant Tarbell, but this the court refused to do ; to which refusal exception was duly taken.
    The case being then given to the jury under the instructions of the court, a vei’dict was returned in favor of Tarbell .and against the defendant Lake.
    A motion for a new trial being overruled, the case came to the General Term on the exceptions taken at the trial.
    Hanna & Johnston for plaintiff:
    Was the testimony relied on by Tarbell admissible or competent to show that he received no consideration for the making and delivery of the instrument, and that he was mot bound as principal, but only as surety?
    
      First, as to the alleged want of consideration.
    The substance of Tarbell’s testimony on this point is that Tarbell signed the note as accommodation maker in order that Lake might discount it; that Lake procured plaintiff to discount the note and himself received the entire pro■ceeds.
    Counsel for Tarbell stated, when he offered this evidence, that he expected to show that plaintiff knew that Tarbell -executed the note as surety for Lake.
    But these circumstances are everywhere held to show that a consideration was received by the accommodation maker. McDonald vs. Magruder, 3 Peters, 475, 476.
    As the extension of credit to Lake constituted a consideration for Tarbell’s execution of the note as matter of law, Tarbell’s assertion that he received no consideration is a mere denial of the conclusion of law flowing from the facts stated by himself, and is therefore inadmissible.
    Tarbell’s statement that Lake received the entire proceeds of the note is immaterial, and tended to mislead the jury, and is, therefore, inadmissible.
    Moreover, the instrument sued on is sealed. For this reason it cannot be shown by parol evidence that the maker received no consideration.
    Second, was it proper to permit Tarbell to show by his parol testimony that he signed the instrument only as surety ?
    Tarbell’s whole testimony is that he signed the note at the request of Lake, on the latter’s representation that he desired to procure it flo be discounted (which was subsequently done), and that he signed said note as surety for Lake and not as principal. Counsel for Tarbell stated, when this evidence was offered, that plaintiff knew when the note was executed that Tarbell executed it as surety for Lake.
    There is no pretense by defendant that any fraud, accident or mistake contributed in any way to .the execution of the note or its delivery to the plaintiff. The note took the direction intended by all parties.
    
      Nor is any doubt suggested by the instrument whether the promise by Tarbell is direct or only collateral. On the contrary, the body of the note sets out an absolute and direct promise by more than one, and two persons sign in the same mode.
    The proposition, therefore, is that Tarbell shall be allowed to flatly contradict, by his parol evidence merely, the positive language .of his written promise, and to convert an absolute into a collateral obligation by setting up a concurrent and inconsistent parol agreement. Such evidence is clearly improper under the principles of law which prevail in the federal courts governing the introduction of parol evidence to vary written contracts.
    The leading case on that subject is Bank of U. S. vs. Dunn, 6 Peters, 51, 57, 58, 59. And the rule laid down in that case has been reaffirmed in the following, among other, cases: Bank of Metropolis vs. Jones, 8 Peters, 12, 16, 17; Sprigg vs. Bank, 10 Peters, 266 (case of alleged suretyship); Brown vs. Wiley, 20 Howard, 442, 447, 448; Specht vs. Howard, 16 Wallace, 564.
    In the last case the court excluded the parol evidence intended to vary the instrument, notwithstanding that it was claimed that the scrivener had made a mistake in the particular point then sought to be corrected by the parol proof. Forsythe vs. Kimball, 91 U. S. 291, 294; and Martin vs. Cole, 104 U. S., 30, which is a very recent and a very strong authority. See, also, Daniel Neg. Inst., §§ 80, 81.
    But, even if it were competent to show, in the way indicated, that Tarbell was a surety, the' facts do not operate to relieve him from liability.
    Because it is necessary that the agreement for an extension of the time of payment shall be founded on a valuable consideration, and be otherwise obligatory on both the creditor and the principal debtor. Ross vs. Jones, 22 Wall., 588; Philpot vs. Briant, 4 Bingham, 717; Gahn vs. Mechiwitz, 11 Wendell, 318.
    But this agreement was not binding, because the only consideration moving to Green was the payment of interest and an agreement to extend an interest-bearing debt in consideration of the payment of interest is nudum factum. Halstead vs. Brown, 17 Indiana, 202; Agricultural Bank vs. Bishop, 6 Gray, 319; Chitty Contracts (6th Eng. Ed.), 580 (note o); Bank vs. Rollins, 13 Maine, 202; Bank vs. Willard, 17 Pick., 150; Gahn vs. Mechiwitz, 3 Paige, 314; 11 Wendell, 312, 318, 319.
    An extension of a debt in consideration of an usurious rate of interest is not obligatory, and, therefore, does not release the surety. The promise to pay such interest is voidable, at Lake’s election, under the statute. There was, therefore, no mutuality, and the contract for extension never was binding. 2 Am. Ld. Case, 470; Shaw vs. Brinkard, 10 Ind., 227; Payne vs. Powell, 14 Texas, 600.
    Even if Tarbell has any redress by reason of the facts set out by him, his remedy is in equity and not at law.
    Cook & Core for defendant Tarbell:
    If the holder of a note signed by principal and surety, makes an agreement with the principal, after the note becomes due, to delay the payment for a specified time, in consideration that the principal promises to pay the interest for that period; and this is done without the knowledge and assent of the surety; the agreement to pay the interest for such period furnishes a sufficient consideration for the promise to delay, and the surety is discharged. Bailey vs. Adam, 10 N. H., 162.
    Nor is the rule changed if the contract be to pay usurious interest. Wheat vs. Kendall, 6 N. H., 504.
    The same has been held where a separate note was given for the interest in advance. Walters vs. Swallow, 6 Whart., 446.
    Where the interest is paid in advance this is evidence in itself of an agreement for a delay for the time for which it is paid. The difference in the two classes of cases seems to be that where the interest is not paid in advance, there must be an express contract to delay for a definite time in consideration of the interest promised to be paid. But where the interest is paid in advance, an agreement is inferred from this circumstance. Sprigg vs. The Bank, 20 Peters, 257; King vs. Baldwin, 2 Johns. Ch., 554; McLemore vs. Powell, 12 Wheaton, 554; Crosby vs. Wyatt, 10 N. H., 318; Bank vs. Ela, 11 N. H., 336; Bank vs. Mallet, 34 Me., 547; Claggett vs. Salmon, 5 G. & J., 314.
    In a suit upon a promissory note against joint and several makers, it is competent for the defendant to show by parol evidence that he vas only a surety, and that plaintiff, knowing that fact, so dealt wfith the principal as to discharge the defendant. Grafton Bank vs. Kent, 4 N. H., 221; Pollard vs. Stanton, 5 Ala., 455, approves 4 N. H.; Bank vs. Mallet, 34 Maine, 547; Paine vs. Packard, 13 Johns., 174.
    The same rule applies where the instrument is under seal. Such evidence does not contradict or vary the deed, nor.seek to show that 'there was no consideration, but only who had the benefit of the consideration, so as to show the relation between the parties. Archer vs. Douglass, 5 Denio, 509; Bank vs. Carroll, 5 Ham. (Ohio), 207; Kendall vs. Grice, 1 Mackey, 279; Dearborn vs. Thrasher, 7 Cowen, 48.
    The time for the performance of a condition of a sealed as well as an unsealed instrument may be enlarged by parol. Fleming vs. Gilbert, 3 Johns., 528; Keating vs. Price, 1 Johns. Chan., 23; Bangs vs. Mosher, 23 Barb., 481; U. S. vs. Howell, 4 Wash. C. C., 620.
    These questions do not conflict with Spriggs vs. The Bank, supra, as there, the bond recited that all were principals which worked an estoppel. And see also the following authorities : Bank vs. Coumb, 47 Mich., 358; Smith vs. Shelden, 34 Mich., 42; Borron vs. Cady, 40 Mich., 259; Wilson vs. Lloyd, L. R., 16 Eq. Cas., 60; Carpenter vs. King, 9 Metcf. (Mass.), 511; Smith vs. Rice, 27 Mo., 505; Paul vs. Berry, 78 Ills., 158; Higdon vs. Bailey, 26 Ga., 426; Matheson vs. Jones, 30 Ga., 306; Piper vs. Newcomb, 25 Iowa, 221 (Dillon, Chief Justice); Cummings vs. Little, 45 Me., 183 (Facts exactly like this case to show defendant was surety. — Especially relied upon); Bank vs. Smith, 30 Vt., 148; Kennedy vs. Evans, 31 Ill., 258; Flynn vs. Mudd, 27 Ill., 323; Murray vs. Graham, 29 Iowa, 520; Orvis vs. Newell, 17 Conn., 97; Neel vs. Harding, 2 Met. (Ky.), 247; Coats vs. Swindle, 55 Mo., 31; Bank vs. Wright, 53 Mo., 153; Bank vs. Burns, 46 N. Y., 170; Kelly v. Gillispie, 12 Iowa, 57; Riley vs. Gregg, 16 Wis., 666.
    In the two eases last above cited, agreement to pay risurious interest was the consideration for the time 'given, and it was held valid, and a discharge of the surety, on the ground that the contract was voidable only at the election of the person agreeing to pay it, and that the creditor could not be allowed to take advantage of his own wrong. Dixon, Chief Justice, delivered the opinion in the Wisconsin case, and in support of the position that the creditor could not take advantage of the agreement to pay usurious interest, cites La Forge vs. Hester, &c., 5 Seld., 241; Draper vs. Trescott, 29 Barb., 401.
    It will be seen from an examination of the above cases that Chief Justice Parker, of New Hampshire, Chief Justice Shaw, of Massachusetts, and Judges Cooley and Dillon, are committed to the admissibility of the defence in this case, as are many other able judges.
    The instrument sued on is not a bond, but a simple ■contract. There is neither the word “seal” in the body of the instrument, nor a scroll opposite the name. One or the other has alw-ays been considered necessary in this jurisdiction to render a writing a sealed instrument. The word seal printed opposite the name is not a scroll.
    The character of the instrument is to be determined by the general commercial law, and not by the rule of construction of the State where made. Swift & Tyson, 36 Peters, 18; Oates vs. Nat. Bank, 20 Otto, 246.
   Mr. Justice Cox

delivered the opinion of the court.

This is an action brought upon an instrument in the following language :

“$1,000. Jackson, Miss., Nov. 18, 1875.
“ Sixty days after date, we, or either of us, promise to pay to J. and T. Green, or order, one thousand dollars, value received.
“ J. L. Lake, Jr. [seal.]
“ J. Tarbell. [seal.] ”

The question was suggested in the outset, whether this was to be treated as a sealed instrument or a simple contract. The action is brought in debt, which would apply to an instrument bearing either character. It is in evidence that by the law of Mississippi, where this contract was made, this is a sealed instrument, and we have no hesitation in saying that by the law of the District of Columbia it must also be so regarded. Written scrolls have been, from time immemorial, regarded as seals here. For twenty years we have been in the habit of using printed forms of conveyancing for real estate, with printed seals only, and to. hold that these are not seals would be to upset many of the titles created during that time. So we must consider this as sufficiently a seal to make this instrument a specialty, if that be material to the issue involved.

The defence made in this case by Tarbell is, that no part of the consideration for this instrument was received by him, but that he signed it at the request and for the accommodation of the other maker, J. L. Lake, jr.; in other words, that he was simply surety for Lake, and that this fact was known to the payees ; that at the maturity of the note, the payees, without his knowledge or consent, agreed with Lake, the principal, to extend the time for the payment of the note for sixty days, and thereby discharged him, Tarbell, who was simply a surety. The evidence offered at the trial tended to show that the consideration offered for this extension was an agreement to pay interest at the rate of one per cent, a month during the period of the extension. At the trial, parol evidence of these facts was offered, and objected to by the plaintiff on the ground that it tended to contradict the written instrument. In this connection, it may be stated that the question of the admissibility of parol evidence in a case like this will present two aspects ; first, as evidence tending to show that the contract of the debtor with the creditor was that of a surety and not of a principal; or, second, that although the contract of the debtor with the creditor was that of a principal, yet the relation between the two debtors themselves was that of principal and surety, one being an accommodation maker, and having a right to indemnity from the other if he should be called upon’ to pay the debt.

The grounds of objection to this evidence were, that on the face of this instrument it purports to be the obligation of two principal debtors, joint and several; that the creditors have a right to deal with each one of them as a principal debtor ; that' although the creditor may know their relations to each other, yet he may ignore them, inasmuch as they do not concern him, and that no defence can be made by either one of these parties, which is not available to a principal, but is only available to a surety ; that to admit parol evidence tending to show a defence which could only be made by a surety, is to admit parol evidence to vary the contract from what it is expressed to be, or what is imported on the face of the written instrument. It is further argued that it will not do to say that this evidence is offered, not to contradict the written contract between the debtors and the creditor, but simply to show the relation between the two debtors, because that fact is offered to be proved for the very purpose of establishing a different contract relation between the debtors and the creditor from that which appears on the face of the instrument; that it is offering to do in an indirect way what cannot be done directly ; that is, to let in a defence which could only be made if the debtor was contracting expressly as a surety and not as a principal.

In my own judgment, on strict common law principles, this objection was well taken. I think the better commentators recognize it as such, and that the older common law authorities tend to sustain the objection. The later authorities, however’ take a different view. A court of equity deals with this matter in a manner different from the common law. A court of equity does not profess to change by parol evidence the written contract between the creditor and the debtor, but it says to the creditor : “ Although you have two principal debtors and may sue either one of them as-a principal, we will not allow you to ignore the relation that exists between those two debtors themselves, or to exercise your rights so as to prejudice one of them. If you know that one of them is simply an obligor or promisor for the* accommodation of the other, and if, by surrendering securities in your hands to the principal debtor, you prejudice the surety as between themselves, we will not allow you to do it. And not only that, but - the surety has a right to call upon us to require you to prosecute your claim against the real debtor, and we will enforce that right and will not allow you to put yourself in an attitude where you cannot enforce it,, by contracting for time with the principal debtor; and if you do that, it shall involve the loss of recourse.” This is upon somewhat the same principle upon which a court of equity will marshal securities where a mortgagee has an encumbrance covering two different pieces of property. In such a case, although he may resort to either, a court of equity will compel him to resort to one first, for the benefit of a junior encumbrancer who can only resort to the other. In course of time, these notions became transplanted from the courts of equity to the common law courts, and the latter came to hold that, what a court of equity would forbid to be done by a creditor, should be a ground of defence to the one of two debtors who occupied the relation of surety for the other, so that they would allow him to plead in bar the action of the creditor in giving time to the one who was,, as between the debtors themselves, the principal. And in order to give effect to this defence, they have gone further and said that parol evidence may be introduced to show the relation between two-or more debtors-; and, in answer to'the objection that this was contradicting the face of the obligation. they have said : “We do not allow the evidence to be-introduced for the purpose óf contradicting the contract between the debtor and the creditor, but simply to show the-relation between the debtors themselves, and that may be shown by parol evidence.”

It seems to me that this is all wrong, as I have already explained ; for what is the use of admitting the evidence for that purpose, unless we go farther and hold that the relation between the debtors is shown for the express purpose of varying the relation between the debtors and the creditors from what it appears to be on the face of the instrument of indebtedness? Nevertheless, it must be admitted that in point of numbers the balance of authority in the State courts is in favor of the admission of this kind of evidence. They have not gone further, however, and held that the evidence may be admitted directly to contradict the obligation between the debtors and the creditor ; but, on the contrary, they have avoided that and expressly disclaimed it, and said that the evidence was admitted simply to control the relation between the debtors themselves.

On the latter question, whether parol evidence can be admitted to show that the contract between the debtors and the creditor differs from what it purports to be on the face of the instrument, the Supreme Court have spoken in one case — Sprigg vs. The Bank of Mount Pleasant, 10 Peters, 266. In that case there was an obligation signed by several parties, in which they all describe themselves expressly as-principals under seal; differing, in that respect, from the present agreement. There, several of the parties undertook to give in evidence that they were sureties only, and were so received and treated by the plaintiffs. Naturally, the question of estoppel presented itself there first. They had signed as principals, and the court held that they were estopped. In that case they offered to show that, although they had signed as principals, their obligation to the creditor was really that of sureties only, but the court said they were estopped by the sealed obligation. But the court went further, and said:

“But admitting that, although the defendant has upon the face of the obligation become bound as principal, yet, a court of equity might allow him to set up that he was only surety, and let him in to all the protections that are usually extended to sureties ; the present case is to be governed by rules applicable to proceedings in courts of law ; and upon this point, the rule seems to be well settled, that where principal and surety are bound jointly and severally to a bond, although there is no express admission on the face of the instrument that all are principals, yet, the surety cannot aver by pleading that he is surety only. In the case of Rees vs. Berrington, 2 Ves. Jun., 542, Lord Loughborough held, that when two-are bound jointly and severally in a bond, they both appear as principals, and the surety cannot aver that he is bound as surety ; but if he could establish that at law, the principle at law is that he has an interest in the condition ; and if the time of payment is extended, that totally defeats the condition, and the consequence is that the surety is released from his engagement. This point is directly adjudged in the case of The People vs. Jansen, 7 Johns., 387. The question there turned entirely upon the pleadings, and the coui’t let in the defence which discharged the surety, upon the sole ground that it appeared upon the face of the bond that the ancestor of the defendant was surety only ; otherwise the defendant would have been estopped by the bond from alleging that he was surety only. But the fact appearing upon the face of the bond, the defence might be set up at law as well as in equity. The case of Paine vs. Packard and Munson, 13 Johns., 174, although the court admitted the surety to set up by plea at law matter in discharge of his liability, is very distinguishable from the present case. That was a suit upon a promissory note, and the court, upon demurrer, sustained a plea interposed by the surety, alleging a special request made to the plaintiff to prosecute the principal and averring a loss of the debt by reason of his neglect to prosecute. The plea in that case was sustained, on the ground that there was no conflict between the note and the averments in the plea. For, says the court, the aver-merits and facts stated in plea are not repugnant or contradictory to the note. That the fact of Packard having' been ■surety only, is fairly to be presumed to have been known to the plaintiff, and he was in law and equity bound to use due diligence against the principal, in order to exonerate the surety.
“ The plea averred that Packard signed the note as surety, ■and the demurrer admitted the facts. Had it appeared upon the face of the note that Packard signed it as principal, there is no reason to conclude that the court would have let in the defence then set up.
“ It could not, in such case, have been said that there was no repugnancy between the averments in the plea and the note, which was the ground upon which the plea was sustained. But this case has not, under any view of it, relaxed the rule with respect to bonds or sealed obligations, which ■are not open to an inquiry into the consideration.”

It is, therefore, asserted by the Supreme Court, in this ■case, that where parties sign an instrument under seal, jointly or jointly and severally, they sign it as principal debtors, and will not be allowed even to aver in pleading that one of them signed as surety. This decision related to the question, between the debtor and the creditor, of the admissibility of proof to show that the relation between them was that of surety when it purported to be that of principal. The cases cited from the States, in the argument, all look to the other question of showing the relation between the two debtors themselves. The question naturally presents itself in what shape was this evidence offered in the ■court below? I think, upon examination, that it goes farther than is warranted even by the decisions from the State ■courts.

The defendant does not confine himself in this case to the ■offer to prove that, as between him and Lake, he was simply an accommodation maker and that Lake was bound to pay the ■debt or indemnify him against loss ; but he goes further and undertakes to prove that, as between him and the creditor, he was simply a surety. Tarbell, the defendant, was sworn as a witness, and was asked by his counsel whether he had-signed the note in the capacity of principal, or as surety for Lake. Now, it will be observed that this note is not the-contract between these two debtors, but the contract between them, jointly and severally, and the creditor — their promise-to pay the creditor so much money. Tarbell was asked whether he signed the note, that is, whether he entered into this contract with the creditor in the character of principal or as surety, and he testified that he signed it on the representation of Lake that he desired the note discounted^ and that he signed as surety for Lake and not as principal; and the counsel proposed to follow that up with evidence that the plaintiff' had knowledge at the time that the note-was signed by Tarbell in the character of surety. Now,, it seems to us that that is evidence to contradict the face of the instrument, and, therefore, coming within the decision of the Supreme Court, and running beyond the decisions in the State courts which have been cited in support of the plea, and that, therefore, it ought to have been excluded. I think the courts are unanimous in excluding the evidence as it was offered, while they are divided as to whether it can be admitted to show the relation between the debtors themselves. I think, therefore, individually, that there was error on this ground in admitting that parol evidence.

But supposing that evidence to have been properly admitted, and that it is not objectionable on the ground already mentioned, the next question is, how far is it competent on other grounds ? The defence, as I have already stated, was,, that an agreement was made with the principal debtor to-extend the time for the payment of this debt without the knowledge or consent of the surety. The evidence is, that the time for the payment of the note was extended to sixty days from its maturity by virtue of an agreement between the plaintiff and Lake, without the knowledge of the defendant Tarbell, and that the only consideration for the respective extensions of said note, first for sixty days, and then indefinitely, was interest at the rate of one per cent, a month paid or to be paid by Lake to the plaintiff", and that he, Lake, did not remember whether said interest was paid at the time said extensions were granted, or after the extensions had expired ; that this agreement for sixty days was made about the time the note became due, that he paid the interest for the sixty days, but is unable to say whether he paid it at the time of the agreement or after the sixty days expired.

Now it is very important that we should know that fact, because, if the interest was paid in .advance for the forbearance, the authorities mostly agree that that is a sufficient consideration for the extension, and inasmuch as the burden is upon the defendant to show a valid agreement between the plaintiff" and the principal debtor for the extension, it is important for him to show that the consideration was paid in advance; and that is not shown by his saying that he either did that or something else, he does not remember which. On the face of this bill of exceptions, we must assume that there is no evidence of the payment in advance and must treat is as if there was simply an agreement to pay the interest at the end of the period of forbearance. The plaintiff alleges that this consideration was usurious, under the law of Mississippi, and that the agreement for the extension was, for that reason void. The law of Mississippi has been put in evidence here, and is found in the Revised Statutes of that State, the law of 1871. It is singularly vague and incomplete. It provides that “ the legal rate of interest on all bonds, notes, accounts, judgments and contracts, shall be six per cent, per annum, but contracts may be made in writing for the payment of a rate of interest as great as ten per cent, per annum [so far the law agrees with ours], and if a greater rate of interest than ten per cent, shall be stipulated for, in any case such excess shall be forfeited, on the plea of the party to be charged therewith.”

We understand this to mean that in the absence of any stipulation as to the rate of interest, it will be fixed at six per cent, and that even a verbal contract for interest at six per cent, is good, but that beyond that rate it is not good; and that a written contract is good for the rate of ten per cent., but, that beyond that it is not good if the facts be pleaded. Whether, when the party stipulates verbally for more than six per per cent., he shall lose the whole or the excess, is a point on which this law is absolutely silent, and we are left to inference, but as to the excess, the agreement must be void. The general rule on this subject, undoubtedly is, that a contract between the creditor and the principal debtor, for forbearance for a limited time, shall be a defence to the surety, but it necessary to show a binding agreement which absolutely ties the hands of the creditor. If the promise is made without any consideration at all, it does not bind him, and it is no defence to the surety. For example, if the creditor simply agrees to extend the date indefinitely on payment of the legal interest, that is no more than he would be entitled to without any agreement ; he receives no new consideration, and such a promise is not binding. It has been held, however, that if the creditor and the principal debtor both agree that the extension shall be for a definite period, the creditor gets some advantage because he has his money secured as an investment for a stipulated time, whereas otherwise, the debtor is at liberty, at any moment, to pay and put the creditor to the trouble of re-investing his money. Again, it is agreed that if interest is paid in advance of the extension, the creditor gets something more than he would be entitled to as a matter of course, and that that sustains the agreement for forbearance. It is further held, by most of the cases (although some hold the other way), that even if usurious interest be paid in advance, that is a sufficient consideration to make the promise binding ; and it is further held in a late case, that if usurious interest be paid for past forbearance, and also in consideration of future forbearance, that will be sufficient consideration, and that the agreement may be availed of by the surety as a defence ; but the general current of authority is, that an agreement to forbear in consideration of an ex-ecutory promise to pay usurious interest in the future for that forbearance is void under the statutes of usury. One or two cases were cited in argument-in which the court said that it did not lie in the mouth of the creditor to set up the illegality of his own agreement ; which is a singular proposition, because it amounts to this : that the creditor is not permitted to show that the agreement which he made is one which he could not enforce, and one which therefore must be void for want of mutuality. This is contrary to the whole current of decisions. I have had occasion to examine the cases cited, and I find that in every one of them the usurious interest was paid in advance, and that it was held that, the creditor having received the full consideration for his promise, it did not lie in his mouth to say that the agreement was void.

In some of the States the law makes the conti’act to pay usurious interest valid to the extent of the legal interest and void as to the excess ; and in two cases cited in argument the court applied that law to the agreement for the extension of the overdue debt. Now, unless the law in express terms required that application, it seems to me there was error, and the court failed to distinguish between the original agreement to pay usurious interest for the forbearance received and this executory contract for extension. The distinction is very plain and simple. If a man receives money which is a legal consideration, and for that consideration promises to do two things, one legal and the other illegal, as, for instance, to pay the principal debt with legal interest, which would be legal, and also to pay a bonus, which would be illegal, there is no reason why he should not be compelled to carry out that part of his agreement which is legal and for which he has received full consideration and more than a full consideration. But if the promise to do two things— one illegal — is not given for money or other value received, but in consideration of another executory promise, such as a promise to give further time, this latter cannot be- enforced by reason of the partial illegality of the promise which was its consideration. In other words the legal part of an undertaking can be enforced if the consideration for it is. • entirely legal, but an undertaking is void if any part of its consideration is illegal. It will be seen, therefore, that there is a wide difference between the original promise to pay a legal debt with legal and illegal interest and a subsequent promise to pay that debt, and also illegal interest,- in consideration of a promise to forbear or extend. In the former case the promise is supposed to be founded upon a legal executed consideration In the latter case the promise to pay is founded upon an executor’s promise to forbear, and this latter promise is vitiated by the partial illegality of the executory promise given as its consideration, and the agreement to forbear is therefore not binding.

Back of this, however, lies still another question. Some of the old books take a distinction between a consideration which is partially illegal and one which is simply partially void. Certain parol promises under the statutes of frauds are void but not illegal. They are not against public policy and are not forbidden. The law simply requires certain evidence to support them and will not sustain actions upon them without it, but if they are properly supported in proof the law will enforce them. But the usury laws originally absolutely prohibited usurious contracts and inflicted penalties upon the receipt of usury and did not allow the party to recover at common law upon a usurious contract either legal interest or principal. It has been suggested that the modern usury laws in the United States do not go so far, but merely make the debt void but not illegal. Now the ground of prohibition in the usury laws is that the contract itself was against public policy, and such contracts are forbidden upon that ground. Our usury laws, although they do not inflict penalties for the receipt of usury, generally do, nevertheless, absolutely prohibit recovery upon contracts for the payment of interest beyond certain limits. This law that-we have here under consideration does that. It does not allow a party, to recover upon a parol contract beyond a certain rate, and even upon a written contract it does not allow any recovery at all beyond ten per cent. Why not ? It must be upon the ground upon which the old statutes were based, that it would be oppressive, and that it is against public policy to allow such recovery ; and, if so, my judgment is, that even these laws are to be considered as declaring such ■contracts as not only void but illegal.

But after all, the distinction is one without a great deal •of difference. Supposing the consideration to be one partially void, and not partially illegal, there are intimations in -some of the very old authorities (in cases found in Croke’s Elizabeth — as far back as that), that if a consideration is partly void, and the void part is simply frivolous and worthless, the valid consideration will still sustain the contract; but there is a series of cases holding that where the contract is an entire promise to do two things, and it is void as to one part, and that an essential part of the consideration, it is to be treated as an entire obligation, and the invalidity is .a defence.

In the present case it will be observed that the promise in -consideration of the forbearance, was not exactly a promise to do two distinct things, one legal and the other illegal, but an entire promise to pay interest at the rate of one per cent, a month. It was an entire promise, and the promise of forbearance was based upon the whole of this consideration. And if .as to one entire half of that promise it is to be considered void — I mean the promise of the debtor — in my judgment the promise of forbearance was void also for want of ■mutuality. If the courts should say that the obligee was bound to give this forbearance, and yet could Only recover one-half of the interest promised to be paid, they would ■change his contract entirely, because the promise to forbear was based entirely upon the promise to pay twelve per cent, per annum — one per cent, a month ; and the court is not at liberty to change that contract.

Nor does it make any difference that, at the expiration of the period of forbearance, the usury was actually paid by the debtor.

The whole question in the case is whether the obligee was .at any time, bound under the contract for forbearance, not to bring suit on this instrument. If not, then that gives no ■defence to the surety. But, according to the views I have expressed, there was no time from the maturity of this note to the institution of this suit, when the creditor was not at liberty to bring this suit or was under obligation to forbear-That was the state of facts during the period of the extension, and the subsequent payment of the usui’ious interest,, could not change that state of facts. At most, it was a voluntary payment which he was not bound to make, for a voluntary indulgence which the creditor might have withheld -

In our judgment, therefore, the evidence which was offered did not tend to establish a valid and binding contract to-forbear, according to the terms of this asserted agreement,, and it was, therefore, even if proved, no defence to the alleged surety against the creditor. A new trial is therefore-ordered.

Mr. Justice James :

While concurring in the conclusion just announced, I have a very little to add to what has been said, and that is upon the question of admitting parol testimony to vary such a, written contract as we have in this case.

, It is well settled that where the contract shows on the face-of it that a party has contracted only as surety, his contract cannot be altered by the creditor, and if the latter by a binding agreement extends the time of the principal debtor, the liability of the surety is at an end. But it is said, and some of the cases cited support the doctrine, that even when the surety has placed himself on the face of the contract in the position of principal, he may still show by parol proof that as a matter of fact his assumption was that of surety only, and that whenever this can be shown, any extension of time to the principal debtor has the same effect. But. the cases are by no means harmonious upon this question. I, however, conceive the true principle will be found to be-laid down in a case cited from Massachusetts. In that case the party who appeared on the contract as a principal was allowed to show that as matter of fact he bore to the other debtor the relation of surety ; that the creditor had extended the time of the principal; that the latter had become insolvent, and that the surety had actually been damaged by the extension of time. That was a purely equitable defence, and I think it was the right view to take of the matter. In my opinion, when such a case comes before a court of law, the defendant ought not to be permitted to alter by parol testimony the terms of the written contract upon the face of which he appears as principal, unless he is prepared to show that the creditor’s extension of time to the real principal has been an actual injury to him as surety. This is as far as a court of equity would go, and in my view it is as far as a court of law ought to go. The defendant in the case before us has shown that there was an extension of time, but we ought not to presume that this mere .extension has been an injury to him. It does not appear, as a matter of proof, that the principal debtor was insolvent, or that the defendant, as his surety, was in any way injured. We may surmise that he was, and we have been told that he was, but the proof does not show it.

I am aware that there are cases, supported by very high authority, which hold a different doctrine, and declare the surety, in such cases as this which we have before us, discharged even where no injury to him is shown to have resulted from the extension of time, but just because the cases are not harmonious upon the subject, I feel myself free to follow those which,' in my opinion, lay down the true doctrine ; and that is, that the principle is carried far enough in a court of law when it is carried as far .as a court of equity would carry it. In all the rest of the reasoning of my brother Cox I fully concur. I do not think this contract for extension was binding upon the plaintiff even if it be permitted to be shown.

Mr. Chief Justice Cartter,

dissenting, said :

It will be perceived that there is no necessity for an apology for the existence of a difference of opinion on the bench in reference to this case, inasmuch as there is such a conflict of authority among the decisions upon the principal question raised by it.

In the first place, it seems to me, that there is an entire misconception of the subject to say that you are contradicting the contract simply because you go under and behind its written language in order to sift out the relations of the parties to it, and regulate their responsibility according •to the equities of those relations. In my opinion there is no such thing as contradiction about it. If there was, there would be an end of the matter, for nothing is better settled than that a written contract cannot be contradicted by an oral one. The doctrine is founded upon the equitable theory that you may go below the surface and inquire into the relations in fact of the parties, not for the purpose of contradicting the contract, but for the purpose •of seeing whether the contract has been satisfied. It is for the purpose of placing the parties where they contracted •and leaving them in their correlative relation to the contract. And then when you have found out what the parties have ■done under and in pursuance of the contract which they have made, if any one of them has done anything in prejudice of the rights of the others that the law ought to take cognizance of, you are to adjust their rights accordingly. The courts in repeated instances have held that you may make at law an equitable defence, and show that a contract has been equitably satisfied by the action of any of the parties ■to it.

What is the case here ? J. L. Lake and J. Tarbell, by their sealed obligation or note, agreed to pay J. & T. Green, or order, one thousand dollars, for value received ; the paper being dated November 8, 1875. Upon that note ■or bond — for it is in its technical significance an instrument under seal — these parties appear as joint and several obligors, •and as principals. That note was drawn payable sixty days after date, and went into maturity, and on the back of it is the writing of the bank, either through its president or its cashier, “ Extended for sixty days.” That is a definite extension, and if it is a valid contract and for a valid consideration, it would appear to protract this instrument and suspend the right of the interposition of legal process for the term of sixty days. The case shows, if the proof is admissible, that to this undertaking Tarbell was not a party, and that he had no knowledge of it. It is further shown that Tarbell was .an undertaker on this note, without consideration, operating to himself ; that he merely came to the aid of Lake as a surety, and that that fact was known to the bank.

Here, then, you have, under the surface of this contract, the fact that Tarbell was really a surety, although in form a principal ; that his character of surety was known to the payee of the note at the time of taking it and advancing the money and at the time of the postponement of the payment. Now, provided this is not obnoxious to objection on the ground of usury, had the bank any right to contract with Lake,-who was known to them to be the principal debtor, for the extension of the paper for sixty days without the knowledge of Tarbell ? In equity clearly not. It was argued that, admitting the suspension of the right of action and of the protraction of the contract for sixty days beyond the period limited by the surety, there is no evidence of damnification to Tarbell. I do not understand that it is necessary there should be. The extension of the time of payment and the change of the contract implied all that under the law, and if the superficial relation of these parties was that of principal and surety, there would be nothing to inquire about, and there would be an end of the case if this agreement for extension were otherwise valid and binding. I see no good reason why it should be otherwise when we have ascertained as á matter of fact the true relation of the parties.

The only question then is, was this contract for extension valid and binding. It is said it was an usurious agreement, and therefore void. I think this is the first time I have ever known Shylock to come into a court of justice and complain that he had been taking usury ; and what is more, all the while with the usury in his pocket. He is the only man who complains of usury in this case, although it is generally from the other side that such a complaint comes. In my opinion, however, the statute of Mississippi has been wrongly interpreted. That statute provides that the legal rate of interest on bonds, notes, accounts, judgments and contracts shall be six per cent, annum ; and then it further provides that contracts may be in writing for the payment of interest as high as ten per cent., and if a greater rate of interest than- ten per cent, shall be stipulated for in any case, such excess shall be forfeited on the plea of the party to be charged therewith — not on the plea of the party making the charge. It is left to the parties to contract for any amount of interest, but the statute says to the lender : “You shall not collect above a certain rate, if the borrower chooses to plead usury.” The contract is voidable but not void, and it is voidable only upon the express plea of the borrower. The borrower here does not plead it. Shall the lender, who is trying to make such a defense, be successful, after contracting for this rate, and after taking. advantage of it, under a statute which only provides that the plea shall be good when made by the other party ? I do not understand the logic that can work out such a conclusion as that, and I do not agree with it. The defendant Lake, who paid the usury does not remember whether it was paid at the inception of the extension, or during its running, or at its conclusion ; but I do not think it is material when the interest was paid, if it was paid and appropriated by the payee of the note. I quite agree with the court below in the ruling made in this case. 
      
      Carpenter vs. King, 9 Metcf., 511.
     