
    G. M. Sharp vs. Peter Fagan.
    Stator. When released by agreement for delay. An agreement for delay between the principal debtor and the plaintiff, in a judgment upon which execution has been stayed, will not haye the effect to release the stayor, unless said agreement be binding upon the parties, and such as the Courts can execute. Thus, a stayor is not released by a simple agreement, entered into without his consent, between the creditor and principal debtor after the stay had expired, that upon payment of part of the judgment, he would grant the latter indulgence upon the balance.
    FROM SIBSOH.
    The plaintiff stayed a judgment recovered by the defendant against one Elliott, before a justice of the peace for Gibson county. After the stay had expired there was an agreement entered into between the defendant and said Elliott, without the knowledge of the plaintiff, that indulgence would be granted upon said judgment upon the payment of a portion of the judgment, The payment was made and the indulgence given until the day agreed upon, after which execution was issued against said Elliott and the plaintiff as his stay or — the said Elliott in the meantime having become insolvent. The plaintiff thereupon brought the case by writ of certiorari before the Circuit Court, where at the November Term, 1855, before Fitzgerald, judge, the certiorari was dismissed. The plaintiff appealed in error.
    T. J. Garthel, for the plaintiff,
    cited 13 Wend. 376; Story on Bills, § 425; Pittman on Prin. and Sur. Law Lib. 14-119; Story on Con. § 440; Act 1809, ch. 69, C. & N.; 4 Humph. 57; Act 1835, ch. 41, § 3; Story’s Eq. § 499; Act 1843, ch. 32.
    M. R. Hill, for the defendant,
    cited 10 Yerger, 111; 3 Humph. 412.
   HaRRis, J.,

delivered the opinion of the Court.

At the March Term, 1855, of the Circuit Court, for the county of Gibson, the plaintiff in error presented his petition for writs of certiorari and superse-deas ; the petition was granted by the Court and said writs issued. The petition sets forth, that on the 14th day of January, 1854, Fagan recovered a judgment, before a justice of the peace, against Elliott & Harris, for the sum of one hundred and fifty dollars, and that the same was stayed by Sharp: that after the stay had expired, Fagan agreed with Elliott, that if he would pay him at that time, (21st October, 1854,) the sum of fifteen dollars on said judgment, and ten dollars on the 6th day of December, 1854, he would indulge him, and take no steps to collect the balance until the 25th December, 1854, and that the twenty-five dollars were paid, and the indulgence given in pursuance of said agreement, which had been made without the knowledge or consent of Sharp, and which he insists discharged. him from his liability. At the November Term, 1855, of said Court, on motion of the plaintiff, the petition was dismissed by the Court— the supersedeas discharged — a procedendo ordered, and judgment rendered against Sharp for the costs, from which judgment he has appealed to this Court.

The only question presented is, was this such an agreement as would discharge the security for the stay of execution? -To have that effect the contract must be such as would bind the parties, and such as the Courts could enforce.

What consideration did the plaintiff receive for the indulgence he agreed to give? He received twenty-five dollars in part payment of his judgment, upon which he had the right to have his execution, not for the twenty-five dollars alone, but for the whole amount. Suppose Elliott had not paid the ten dollars he agreed to pay on the 6th December, 1854, did the plaintiff by this agreement obtain any better or additional remedy for its collection than he had before?

Or suppose that after the payment of the twenty-five dollars, the plaintiff had disregarded the agreement and issued his execution on the judgment, could it be seriously contended that he would not have had the right to do so, notwithstanding the agreement; and no Court could legally have quashed said execution, if applied to for that purpose. There being no consideration to support the contract, it was binding on no one.

While we fully admit the principle, that a valid agreement for delay, entered into between the principal and the creditor, will release the surety, we do not think that there is any such agreement in this case.

The Circuit Judge having taken this view of the subject, we affirm the judgment.  