
    Alcock v. Hill.
    December, 1833.
    Forthcoming Bonds — Suspension of Execution — Rights of Surety.  — A creditor suspends execution on a forthcoming bond for several years, but he does so without consideration, and he nowise binds himself to suspend execution for any definite time; the principal and all the sureties but one become insolvent; a.nd then the creditor sues out execution against the solvent surety: Held, the surety is not entitled to relief in equity.
    Principal and Surety — Discharge of Surety — Indulgence. — The principles stated, on which indulgence given by creditor to principal, exonerates tbe surety.
    This was a bill in the superiour court of chancery of ffrederickburg, exhibited by Pitman fell against Abner Alcock, alleging, that Alcock having recovered a judgment in the circuit court of Stafford against James Hifflin and Richard Hill, and sued a fieri facias thereon, which was levied on their property, the plaintiff Pitman Hill and one Corbin became their sureties in a forthcoming bond for the delivery of the property at the day and place of sale; and the forthcoming bond being returned forfeited, execution was awarded, thereon against the principals and sureties. That execution was sued by Alcock, and delivered to the sheriff; and if Alcock had not suspended proceedings *thereon, the debt might have been levied of the property of the principals; they being solvent at the time; but Alcock, without the consent or knowledge of the plaintiff Pitman Hill, gave written directions to the sheriff, to suspend proceedings on the execution till he should give further instructions. That Richard Hill, one of the principal debtors, had delivered a slave to one Hore, to be sold, and the proceeds applied to the discharge of the debt due to Alcock, of which Alcock was informed, and afterwards offered the slave for sale himself, and might have sold him at any time, or procured the sale; and it was because Alcock had the means thus placed in his own bands or power, of obtaining satisfaction of his demand, that he directed proceedings on his execution to be suspended. That the plaintiff Pitman Hill, being also apprised of these facts, took no steps to secure indemnity against loss by reason of his surety-ship. That Alcock forbore any further proceedings for many years, until'all the other obligors, in the forthcoming bond had become insolvent, but had lately sued out an execution, and caused it to be levied on the property of the plaintiff. Therefore, the bill prayed an injunction to inhibit Alcock from further proceedings, on his last mentioned execution, against the plaintiff.
    The injunction was awarded.
    Alcock, in his answer, said, that when the plaintiff Pitman Hill, became surety in the forthcoming bond, he did so, because he was told by the sheriff, and therefore expected, that indulgence could be obtained from Alcock, by the principal debtor Richard Hill, so soon as the debt should be secured by a forthcoming bond ; and it was because Alcock was apprised that this assurance had been given, and was content with such security, that he directed the sheriff to suspend proceedings on the execution, which was afterwards issued by the clerk on the forthcoming bond: that his suspension of proceedings was a mere indulgence given without consideration, and he did not thereby preclude himself from proceeding whenever he should think proper, and *he would have proceeded at any time, if the sureties had required him to do so: and that, if Richard Hill did deliver a slave to Hore to be sold for the purpose of satisfying the debt, it was a transaction .between Hill and Hore, to which he, Alcock, was nowise privy : he never offered the slave for sale, nor had any power to make such sale.
    It appeared in proof, that when Pitman Hill joined in the forthcoming bond as surety, he was told by the sheriff, that Al-cock would give Richard Hill, the principal, time to discharge the debt, provided satisfactory surety was given in the forthcoming bond; and that Alcock obtained an award of execution on the forthcoming bond ; and an execution having been issued, he then directed, in general terms, that proceedings should be suspended till further instructions. It appeared also, that Richard Hill did deliver a slave to Hore, to be sold and the proceeds applied to the payment of the debt due Alcock, and that this slave died in Hore’s possession. But it was doubtful upon the evidence, whether the other allegations of the bill in respect to this slave, were true; namely, that he was delivered by Richard Hill to Hore, before the forthcoming bond was executed, with power to sell him, and with authority to Alcock to direct the sale, to pay the debt due him, and that this was the consideration on which Alcock gave the indulgence.
    The chancellor thinking that the allegations of the bill were proved, perpetuated the injunction. And this court, upon the petition of Alcock allowed him an appeal from the decree.
    The cause was argued bj' Stanard for the appellant, and Briggs and Leigh for the appellee. The argument turned chiefly on the controverted queslion of fact above stated.
    
      
      Forthcoraing Bonds. — See generally, monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
    
      
      Principal and Surety — Discharge of Surety — Withdrawal of Execution against Principal. —A surety is not discharged, or exonerated to any extent, by the simple withdrawal of an execution against the principal, after it. has been placed in the hands of the sheriff but before actual levy, though the principal may have had personal property on which the execution might have been levied. To this effect, the principal case was cited in Ambler v. Leach, 15 W. Va. 697; Armistead v. Ward, 2 Pat. & H. 512; Walker v. Com., 18 Gratt. 39; Humphrey v. Hitt, 6 Gratt. 510, 528, and foot-note.
      
      In Ashby v. Smith, 9 Leigh 172, Judge Brocken-brough expressed the view that the principal case and McKenny v. Waller, 1 Leigh 434, were rendered of doubtful authority by the opinions of Judges BivOoke and Cabell, in Chichester v. Mason, 7 Leigh 244. But in Humphrey v. Hitt, 6 Gratt. 510, JUDGE Baldwin, in whose opinion the other judges concurred, said: ‘1 am for adhering to the decisions of this court in McKenny v. Waller, 1 Leigh 434. and Alcock v. Hil, 4 Leigh 622. which ha ve not been shaken by any subsequent adjudication: and which establish a principle that furnishes a safe and certain guide. To overrule them would give rise to much litigation; and the present case is a strong illustration of the evil.'’
      See what is said by Cabbi, J., in Chichester v. Mason, 7 Leigh 263, concerning the principal case. See also, foot-note to McKenny v. Waller, 1 Leigh 434, containing extracts in which the principal case is cited.
    
    
      
      Same -Same — Extension of Time.- Mere indulgence granted to the principal debtor will not release his surety. Knight v. Charter, 22 W. Va. 429. and First National Bank v. Parsons, 45 W. Va. 698, 32 S. E. Rep. 275. both citing the principal case as authority. But nothing is better settled than that a binding agreement between the creditor and the principal debtor to extend the time of payment for a definite period discharges the surety, if made without his consent. And the reason is. that such extension of time varies the contract of the surety, and therefore operated to discharge him, even though the change be for his benefit. Moreover, the surety is entitled upon paying the debt, when due, to be subrogated to the rights and remedies of the creditor: and if, by contract, the creditor has tied his hands and disabled himself from suing, so that if the surety were to pay the debt, he would not be free to sue immediately, the effect is to deprive the surety of a right to which, by virtue of the original contract he is entitled, and consequently to discharge him. To sustain this proposition, the principal case was cited in Stuart v. Lancaster, 84 Va. 774, 6 S. E. Rep. 139; Coleman v. Stone, 85 Va. 388, 7 S. E. Rep. 241; State Savings Bank v. Baker, 93 Va. 515, 25 S. E. Rep. 550; Bacon v. Bacon, 94 Va. 692, 27 S. E. Rep. 576; Knight v. Charter, 22 W. Va. 429 foot-note to Walker v. Com., 18 Gratt. 13, containing extract from Knight v. Charter, 22 W. Va. 429; foot-note to Harnsberger v. Geiger, 3 Gratt. 144; foot-note to Shannon v. McMullin, 25 Gratt. 211. See also, foot-note to Hill v. Bull, Gilm. 149.
      In order for the indulgence to the principal to release the surety, it is necessary that a new day of payment be fixed. First National Bank v. Parsons, 45 W. Va. 697, 32 S. E. Rep. 275, citing the principal case as authority.
      Same — Rights of Surety in Securities for Debt, — In Coffman v. Moore, 29 Gratt. 248, it is said: “It is also held that the surety, as against his principal is entitled to all the securities which the latter has given the creditor for the purpose of reimbursing him, if he has paid the creditor, and, if he has not, for the purpose of having it paid for his own protection. The surety has a right to stand in the shoes of the creditor in the enforcement of such securities; and the creditor, as to such, securities in his hands and under his power, is considered as trustee for the surety, and if he is unfaithful, he not only fails in his dutj as trustee, but violates the rights of the surety as against his principal, and is liable for the loss which the surety thereby sustains. These principles are firmly established by repeated decisions of this court. I need only refer to the following cases: Ward v. Johnson, 6 Munf. 6; McKenny’s Ex’ors v. Waller, 1 Leigh 434; Alcock v. Hill, 4 Leigh 622; Humphrey v. Hitt, supra, in which Judge Baldwin, with the unanimous concurrence of the other judges sitting, gives a clear and forcible exposition of the doctrines on this subject. Then follows Harnsbarger Adm'r v. Kinney, 13 Gratt. 511; and the recent cases of Shannon v. McMullin, 25 Gratt. 211; Harrison’s Ex’or & als. v. Price’s Ex'or & als., Ibid. 553. The doctrines of the law, as enunciated, are so firmly settled in Virginia that we deem it unnecessary to pursue the inquiry outside of our own courts; but will proceed to inquire how far they are applicable to the case in hand.”
    
   CARR, J.

It was admitted by the appel-lee’s counsel, that Alcock’s suspension of proceedings on his execution, would nowise impair his remedy against the surety, if that suspension was merely voluntary on his part. But they insisted, *that it was in consequence of an agreement upon valuable consideration, which tied up Alcock’s hands, and therefore released the surety; an agreement, namely, that one of the principal debtors should put a slave in Alcock’s hauds, or under his power, to be sold for the debt, and that in consideration of this the execution should be suspended; which agreement, they said, was complied with by the delivery of the slave to Hore to be sold by him for the purpose, or to be sold when Alcock should so require. If this case had been made out by the proofs, the counsel would have had pretty strong grounds to stand on. But to my mind, the evidence proves no such agreement. On the contrary, I think the evidence proves that the slave was put into Hore’s hands, but never into the possession or under the power of Alcock; and that this was a transaction between Richard Hill and Hore, to which Alcock was not a party, and which, indeed, was subsequent to the indulgence given by Alcock, and was nowise the consideration on which Alcock gave the indulgence. The circumstances detailed in the evidence, instead of disproving, corroborate Alcock’s answer. This case, therefore, belongs to that class of cases, in which it has been held, that a voluntary indulgence given by a creditor to the principal debtor, does not impair the creditor’s remedy against the surety. The case of M’Kenny v. Waller, 1 Leigh 434, is in point for the appellant. The decree should be reversed, and the bill dismissed.

CABELL and BROOKE, J., concurred.

TUCKER, P.

The direction given by Alcock to the sheriff, to suspend proceedings on his execution, against the principal, till further directed, was not of itself sufficient to discharge the surety. If, indeed, a creditor engages, for a good consideration, to give indulgence, so as to tie up his hands from proceeding at any moment he may be required by the surety to d'o so, the surety is absolved, unless such *'indulgence is given with his assent. The constituents of this principle, are, 1. a consideration ; for without it, a promise to indulge is not binding: 2. a promise or agreement to indulge; for without it, the hands of the creditor are not tied, whatever collateral security he may have received: 3. that the promise should not be altogether indefinite; for an indefinite promise of forbearance is void and nugatory, and is held not to be an adequate consideration to support even a promise, since the forbearance might be but an hour, which would be a forbearance indeed, but of no advantage to the debtor: and 4. that the surety should not have assented to the indulgence given.

Trying this case upon these principles, I think it very clear, that the surety was not absolved. For, as to the transaction at the time of the execution on the forthcoming bond, I think the evidence proves, that the probable motive of the appellee for joining in it as a surety, was the expectation of getting that indulgence for his friend, which the sheriff assured him might be obtained from Alcock, upon the debt being secured by a forthcoming bond. To this indulgence then, — if, indeed, the promise of it, thus unauthorized, by the sheriff, and the indefinite character of it, could bind Alcock at all, — the surety himself assented. It was the consideration upon which he entered into the bond. Surely, he cannot complain that that has been done which was promised byr the sheriff on Alcock’s behalf, and was the operative motive with himself for joining in the bond.

With regard to the transaction respecting the slave put into the possession of Hore; this, it is alleged, was a consideration for the indulgence, and sufficient to bind Al-cock. Admitting the facts as they are-contended for, although here was a consideration, yet there was no promise, unless we resort to the original promise at the time the bond was g'iven. Now the fact, that the principal placed collateral security in Alcock’s hands, which has been lost without his default (as, in this case, by the death of the pledge), is not sufficient to discharge the surety, unless accompanied by a promise of ^specified forbearance. No such promise is proved, or even charged.

We must go back then to the promise at the time the bond was given, or there is no promise in the case. And if we do, we can see in the indulgence given, until Hore could make such sale of the property as would be just to all parties concerned, nothing but a fair, bona fide, and honorable compliance with the engagement made by the sheriff and ratified by Alcock, that he would give Richard Hill time to discharge the debt, provided a forthcoming bond was given with satisfactory surety; upon the faith of which promise, as I conceive, the appellee did become a surety. He cannot complain of a compliance with it, and therefore ought not to have sought this injunction.

Decree reversed, and bill dismissed.  