
    BLANK VS. WEBER.
    Where a creditor gives time to the principal debtor, taking a judgment note in consideration therefor, he discharges the surety.
    Error to the Common Pleas of Lehigh County. No. 139 Jan. Term, 1883.
    The following statement of facts were agreed upon in the Court below: It is agreed that the following facts be stated on the record, and on which is to be reserved the question of law whether the accepting by the plaintiff of the judgment by Bishop Kline, under the contract shown by the receipt of May .8,1871, discharged the defendant’s testator as surety on the bond, to wit: 1st. That under proceedings in partition and in Orphans’ Court of Bucks County, Penna., on the real estate, late of George Kline, deceased, Bishop Kline, a son of said decedent, had adjudged to Mm, two purparts of said real estate at the acceptance price of $7,030. The said Court on Nov. 4th, ’69, ordered and decreed that said Bishop Kline should enter into recognizance to the Commonwealth conditioned to pay the other parties interested, their proportional share of said sum, and to give a bond to each of the other heirs with Henry Blank (in whose stead John P. Blyer was afterwards- approved by said Court) and John Weber as his sureties, for the payment of their respective shares, on or before Nov. 4th, 1870, and that a recognizance, as aforesaid, was duly executed by said Bishop Kline. 2nd. That in pursuance of said decree, Bishop Kline with John P. Blyer and John Weber as his sureties, on Bee. 15, 1869, executed and delivered to Maria Landis, Alice Kline, Matilda Fretz and Sarah Wetzel, daughters, and Willoughby, a son of said decedent, bonds, conditioned for the payment to each of the obligees, their executors, administrators, and assigns, the sum of $980.45, on or before the 4th day of November, next ensuing, the date of said obligation, with legal interest, and' the further sum of $490.57, immediately after the death of the widow of said decedent. 3rd. That on the 8th day of May, 1871, said obligees assigned the first installment of the bonds and recognizances, aforesaid to George Blank, the plaintiff, which assignments were filed in the office of the clerk of said Court, on June s?rd, 1871. 4th. That on May 8th, 1871, said Bishop Kline executed and delivered to said George Blank, his judgment note for the payment, on the 1st day of April then next, of the sum of $3,400, at the same time, said Blank making and delivering to said Bishop Kline, a paper as follows: “Received May 8th, 1871 of Bishop Kline judgment note of $3,400, payable April 1st next, (without interest,) for which I agree to satisfy first installment, due the heirs of George Kline, deceased, on the real estate accepted by said Bishop Kline, out of estate of his father. Which said installment amounts to $3,211.57 (including interest to May 1st, Inst.) It is also agreed, that the recognizances shall remain unsatisfied, until this judgment is paid. (Signed) George Blank.” That on June 3rd, 1871, judgment was entered on said note in the Court of Common Pleas of Bucks County. 5th. In the month of April, 1872, Bishop Kline paid the plaintiff $255 on account of said judgment. Afterwards to Sept.. Term, 1873, of the Court óf Common Pleas of Bucks. County, the plaintiff caused the real estate of said Bishop Kline, covered by said judgment and recognizances, to be sold at Sheriff’s sale, and realized the balance of said judgment out of the proceeds, except so much thereof, as with interest added to it, amounts to the sum of $648, which sum still remains unpaid. Suit being afteiwards brought against John Weber, one of the sureties upon the recognizance given by Bishop Kline to the. other heirs, and assigned to the plaintiff; it is objected, that the plaintiff, at the time he took a transfer of these recognizances, also took a judgment note from Bishop Kline, payable at a future day. The sureties of the recognizances are released. This question as to the releasing of the sureties, was reserved by the Court, and decided by the Court, in favor of defendant, Weber, in an opinion, delivered Aug. 3,1882 by
    Albright, P. J.
    The amount to which plaintiff is entitled, if he can recover, was found hy the jury. The other facts necessary for a decision of the point reserved, have been admitted by an agreement of counsel filed of record in the cause. Bid the acceptance by the plaintiff of the confessed judgment, which hy its terms,' was payable ten months and twenty-two days, after its date, discharge the defendant, who was a surety ? Where a creditor, by a valid and binding contract with the principal debtor, without the surety’s assent, places himself in a position, that his remedy is for a time suspended, where he makes an arrangement, whereby the surety is prevented from paying the debt at maturity, and asserting his equitable right to subrogation to the original rights and remedies of the creditor, the surety is discharged.
    In Com. vs. Shryock, 15 S. & R., 69 : A daughter of a decedent had accepted the bond of the administrator, payable one year after date, for her share of the balance in the administrator’s hands. It was held, that this discharged the surety on the administration bond, so far as her distributive share was concerned. The Supreme Court remarked, that it was a well settled principle, that where the creditor without the privity of the surety , entered into an engagement with the principal, for extending the time of payment, so as to tie up his hands for a limited period for bringing suit, the surety was discharged ; that in the case then under consideration, the distributee would have been enjoined by chancery from bringing suit on the administration bond, before the time fixed for the payment of the administrator’s bond to her. In Sawyers vs. Hicks, 6 W., 76 : The guardian of the minor children of a decedent, had taken from the administrator, a judgment bond and entered it, giving one year’s stay of execution. It was held that this discharged the surety of the administrator in a recognizance, given upon an order for the sale of decedent’s real estate. Clippinger vs. Creps, 2 W., 45, was the case of a creditor, who held the joint and several notes of two, one of whom was a surety. The creditor accepted a judgment of the principal' debtor, voluntarily confessed before a justice of the peace, with a stipulation that there should be a stay of execution. It was decided that the surety in the note was released.
    A mere loose promise to give time, or an agreement to do so without consideration, is not binding on the creditor and will not discharge the surety. It must be such a contract as could be enforced against the creditor in law or equity.
    The judgment note of Bishop Kline to the plaintiff, dated May 8,1871, and entered on June 3, of the same year, was payable on April 1,1872, ten months and twenty-two days after its date. The contract between the creditor and principal debtor, as evidenced by the judgment and receipt given by the plaintiff at the same time, was the creditor, having received the judgment note, agreed to satisfy the first instalment due the heirs, with the •proviso that the recognizance should remain as security until the judgment had been paid. The judgment was for the debt represented by the recognizance and the bonds in suit, so far as the two-thirds due in the widow’s lifetime was concerned. The receipt is to that effect. That debt was then due and demand-able. The acceptance of said judgment did not extinguish that debt. It was neither extinguished by merger nor by satisfaction; the receipt of May 8,1871, shows that such was not the case. Nor was the judgment entered a judgment on the recognizance. Upon a failure to pay the judgment no doubt the creditors could have obtained judgment on the recognizance and made use of all the remedies it conferred. Were the remedies on the recognizance and bonds suspended between the date of the judgment and the date when it was payable? If the creditor had attempted to enforce either obligation against Bishop Kline, and if the latter had thereupon applied to restrain the proceeding, how would the matter have been regarded ? It would have been apparent that in consideration of the advantages conferred by the judgment, the creditor had agreed to wait. If the creditor had replied that he had reserved the right to retain the security of the recognizance until the judgment was paid, the rejoinder would have been that the debtor had until April 1, 1872, to pay the judgment. I think a Court would have decided the question in favor of the creditor — that there was a consideration for the agreement to extend, and that it was binding on the creditor.
    If positive authority is required for what seems to need no demonstration, it is found in the remark of Chief Justice Tilghmap, in Commonwealth vs. Shryock, already quoted. That remark was not mere dictum; the very question before the Court depended upon whether the creditor had by the bond suspended the remedy which he before had, and thereby discharged the surety on the administration' bond. In principle that case and Hicks vs. Sawyers, supra, have a direct bearing upon this case and must rule it.
    The sureties, and each one of them, had a right at any time, between May 8,1871, and April 1,1872, to pay the debt to Mr. Bland and demand at his hands all the securities he held against 'the principal debtor. Such a payment would have entitled them to step into Mr. Blank’s shoes, and enforce the recognizances, the same as he could have enforced it, had he not received payment' for the sureties. It is a principle well settled that a surety who pays a debt is entitled to all the securities within the power of the creditor. The recognizance was the primary security for the debt which the sureties bound themselves to pay when they signed the bond. It was the first lien on the title which Bishop Kline acquired under the partition proceedings. That it was an absolute security of so high a nature, and that it would • always have to inure to their benefit in case they were required to pay, no doubt induced the sureties to consent to bind themselves. Had they so paid and succeeded to Mr. Blank’s rights under the recognizance they would have discovered their remedy against the principal to be suspended until April 1, 1872. They would have had no higher rights under the recognizance than the creditor had immediately before they succeeded to his rights. The creditor had a legal right to bind himself not to proceed for a period. By the extension Bishop Kline acquired a right which equity would have regarded, while permitting the sureties to become subrogated to the rights of the creditor.
    That an agreement of the character here shown, discharges- the sureties, seems to me to be established by decisions in this State, too numerous to mention. Nor is the period during which the remedy is suspended material. In Manufacturers’ and Mechanics’ Bank vs. Bank of Penn., 7 W. & S., 335, the creditor had disabled himself from proceeding for three weeks only; in Okie vs. Spencer, 2 Wh. 253 for but six days.
    The thought will occur that the ‘ sureties should not be permitted to complain, because if they had paid while the judgment was in existence and before it became due, they would have succeeded to that too ; that it might have secured to them valuable rights; that it was, or might have been, made a positive benefit to them. But a conclusion, favorable to the plaintiff, in this regard is prevented by positive authority. “If the creditor gives time to the principal debtor, or does any act which alters the situation of the parties,’he prevents the sureties from using liis name with effect. And the law is the same, when the arrangement is for the benefit of the surety, for he stands upon his contract and is discharged from all obligation, if any alteration is made in it without his consentClippinger vs. Creps, supra. “Every man, so long as he is a free agent, must be permitted to declare the terms upon which he may be permitted to incur an obligation, and having done so, it cannot be altered in any material point whatever, without his consent; nor yet anything be done which may affect his rights in relation theretoOkie vs. Spencer, supra.
    But it is contended that the acceptance of the judgment was without consideration, and therefore was not binding upon the creditor; true, the debt had been due long before the judgment was taken. A brief reply would be a mere reference to most of the cases already cited, notably those of Commonwealth vs. Shryock and Sawyers vs. Hicks. In each of said two cases, the creditor, when the new obligation of the administrator was accepted, had a perfect right of action against the administrator ■and his surety. But, because in the last named case, the guardian took from the administrator a judgment bond and entered it, giving one year’s stay of execution, and in the other case because the distributee accepted the administrator’s bond, payable in one year, for her share, the sureties of the administrators were held to have been discharged.
    To constitute consideration there must be some benefit to the party by whom the promise is made, or some detriment sustained, •at the instance of the party promising, by the party in whose favor the promise is made, Bouv. Diet. The consideration must have some reality ; the performance of that which a party was under a previous valid obligation to do, is not a valid and sufficient consideration, 2 Pars, on Cont., 363. Now, a voluntary judgment given by a debtor, even if the debt is overdue, is an advantage to the creditor. He is relieved from the expense and delay of a suit, with the judgment, although not yet due, he may ■ secure a lien on any real estate his debtor may have anywhere in the State. And the power in the creditor’s hands to encumber, and to issue execution at once when the judgment is due, is a detriment to the debtor.
    The confession of a judgment is a sufficient consideration to support a promise to give time to the debtor. Certainly one who avails himself of the benefits of a warrant of attorney by entering judgment cannot complain, if he is prevented from enforcing the debt according to the terms of the judgment.
    Por these reasons, upon the facts found and those stated on the record as admitted, judgment must be entered for the defendants.
    Now, July 3, 1882, judgment is entered for the defendants non obstante veredicto. The rule for a new trial is discharged.
    Blank then took a writ of error to the Supreme Court, complaining of the action of the Court below, in entering judgment for the defendant Non Obstante Veredicto.
    
    
      R. E. Wright & Son, Esqs., for plaintiff in error
    argued, that the acceptance of the said j udgment, did not extinguish the debt, and the receipt of May 8th, 1871, shows that it was not intended to do so. Taking a judgment from one of several joint and several obligors does not affect the responsibility of the others ; Rhoads vs. Frederick, 8 W. 448; Potter vs. McCoy, 26 Penna. 458; Weigand's Appeal, 4 C. 471; Bowers vs. Still, 49 Pa. 65; Schollenberger vs. Seldonridge, 49 Penna. 83; Mundorff vs. Singer, 5 W. 172; Shaw vs. First Reformed Church, 39 Penna. 226. Where time is given to the.principal, and as a part of the contract it is stipulated that the sureties shall not be released; thereby; the extension does not operate as a release ; Hagey vs. Hill, 75 Penna. 110; Calvert vs. Good, 95 Penna. 68; Wyke vs. Rogers, 1 DeGex Macnaghten & Gordon 408; Boaler vs. Mayor, 115 Eng. Common Law 80; Kearsly vs. Cole, 16 Meeson & Welsby 128; Cowper vs. Smith, 4 Meeson & Welsby 519; Ex Parte Gifford, 6 Vesey, Jr. 807.
    
      Edward Harvey and C. M. Runk, Esqs., contra,
    
    argued that the
    .liability and the recognizances became merged in the judgment, and therefore, no action could be maintained on these words against Kline; Beltzhover vs. Commonwealth, 1 W. 126; Williams vs. McFall, 2 S. & R. 280; Jones vs. Johnson, 3 W. & S. 277; Anderson vs. J e an, 1 W. & S. 334; Lewis vs. Williams, 6 Wh. 268; Duchess of Kingston’s Case, 3 Smith’s Leading Cases 1998. Where a creditor by any contract which can be enforced against him, at law or in équity, gives time to the debtor, he discharges the surety; Clippinger vs. Crops, 2 W. 45; Miller vs. Stem, 12 Penna. 383 ; Uhler vs. Applegate, 26 Penna. 140; Sawyers vs. Hicks, 6 W. 76; U. S. vs. Hillegas, 3 Washington C. C. Rep. 70; Boschert vs. Brown, 72 Penna. 372; Hagey vs. Hill, 75th Penna. 110; Appleton vs. Parker, 15 Gray 173; Brook vs. Wright, 13 Allen 72; Greely vs. Dow, 2 Met. 176; Henderson vs. Ardery, 36 Penna. 449; Boulbre vs. Stubs, 18 Vesey, Jr. 20.
   The Supreme Court affirmed the judgment of the Court below on March 3rd, 1884, in the following opinion :

Per Curiam.

The opinion of the Court, in entering judgment on the reserved question and in discharging the rule to show cause why a new trial should not be granted, contains a correct statement of the law. It is well fortified by evidence, which fully sustain the judgment.

Judgment affirmed.  