
    Wm. McCelvy vs. W. P. Noble and A. R. Houston, Exors. of Alexander Houston.
    
      Consideration — Guarantee—Forbearance to Sue — Seasonable Time — Costs.
    In an action on a guarantee given in consideration of forbearance to sue tlie principal debtor for a reasonable time, a forbearance for three months and four weeks held to be reasonable.
    A suit-against the guarantor prematurely brought is no bar to a second action against his executors, commenced after a reasonable forbearance to sue the principal debtor.
    
    Plaintiff, in a bill for discovery, who does not bring himself within the exception, must, undez' the general rule, pay the costs.
    BEFORE WARDLAW, J., AT ABBEVILLE, FALL TERM, 1860.
    Tbe report of bis Honor, tbe presiding Judge, is as follows :
    “ This was a new trial bad under an order made in tbe Court of Appeals, May, 1859.
    “Tbe action is assumpsit. Various counts charged that Alexander Houston was maker, was indorser, was guarantor of a promissory note, of which this is a copy, viz.:
    “' $104.70. One day after date I promise to pay W. McOelvy, or bearer, tbe sum of one hundred and four dollars 70-100, for value received. March 3d, 1854.
    “' C. B. Houston.’
    
      “ [On the back.] ' I indorse the within note to W. McCelvy, 10th Oct., 1854.
    “ ‘ A. Houston.’
    “Credited by $17.38, ‘pro rata on the within,’ received from W. H. Parker, Commissioner, out of the funds of C. B. Houston.
    
      “ Plea, tbe general issue. Tbe signatures of 0. B. Houston and Alexander Houston were admitted to be genuine.
    
      “ It appeared that suit against Alexander Houston on bis indorsement was commenced by the plaintiff, October 26,1854, which abated by the death of Alexander Houston, about October 15,1855, or soon after; there had been in his lifetime leave of further 'time to declare given at October term, 1855; that suit on the note was commenced by the plaintiff against C. B. Houston, February 7, 1855, upon which judgment and fi.fa. were had, October 8, 1855; and that G. B. Houston is now out of the State and insolvent, and from his effects and choses, distributed amongst his creditors by proceedings in equity, only $17.38 has been or can be bad; that the present suit against these executors was commenced September 11, 1857, and in a petition filed by them in equity, April, 1858, the alleged indorsement of this note by their testator is mentioned as a liability upon which they apprehended judgment at the then next term, October, 1858, and against which they prayed to be indemnified out of the funds of G. B. Houston.
    " A trial of this case was had at March, 1859. After the order for new trial, to wit, September 28,1859, the defendants, executors, filed a bill for discovery against the present plaintiff, and in the Court of Equity, at June term, 1860, an order wras made that the answer of Wm. McOelvy, this plaintiff, should be read as evidence at law.
    “ This bill and answer were read, and as a great deal was said about parts of the answer not being responsive, and. about the meaning which should be given to different parts of it that the defendants contended were irreconcilable, the bill and answer must be printed. On them the whole case, I think, now depends.
    "There was testimony that before October 26, 1854, Alexander Houston had advertised a sale, and to one witness declared his intention to remove to his son’s in Mississippi, there to spend the remainder of his days; and that about November 2, 1854, he sold a few trifling articles, and soon afterwards removed about a quarter of a mile.
    "In meeting the objections of the defendants, I admitted that there was incongruity of form in considering him a maker who signs a note after it has become due, or in considering him an indorser who has never owned the note; but held these objections unimportant, since Alexander Houston might here be well considered as guarantor.
    “The defendants’ real objection was, that there was no consideration to sustain Alexander Houston’s undertaking ; and this was equally applicable, whether he was considered maker or guarantor.
    
      “ The consideration, it appeared to me, (from what I thought a proper construction of this plaintiff’s answer in equity,) was the plaintiff’s agreement to forbear suing C. B. Houston. ' ’To the question whether this agreement had been performed, proceedings against Alexander Houston, which never came to trial, were wholly irrelevant. The time of forbearance seemed to have been left indefinite, and, therefore, I thought should be a reasonable time; and the actual forbearance for a reasonable time should be superadded to the agreement, to constitute, in my opinion, a sufficient consideration. I left it to the jury to decide whether, under the circumstances, forbearance from the 10th of October, 1854, till the 7th of February, 1855, no term intervening, was reasonable; and the propriety of the plaintiff’s exercising due diligence by suing the debtor to the first term after the guarantee, for tbe security of the guarantor, was, I thought, a circumstance that might be looked to by the jury, in their consideration of the question submitted to them.
    “ The jury rendered a verdict for the plaintiff, $138.16.”
    So much of the answer of William McOelvy to the bill for discovery as relates to the circumstances under which the indorsement was made, and the consideration thereof, is as follows:
    
      “ That this defendant was the equitable owner of a single bill for the sum of one thousand dollars, besides interest, given to one Samuel R. Morrah, and signed by C. B. Houston, James A. McKee, and said Alexander Houston, deceased; and, also, the payee of the promissory note described by the complainants in their bill of complaint. That said C. B. Houston was regarded, to say the least, in doubtful circumstances, in October, A. D. 1854. This defendant, at this time, to wit, in October, A. D. 1854, determined to have the said promissory note made good by the signature of some responsible man, or bring suit thereon. Eor this purpose he applied to Alexander Houston, the father of said G. B. Houston, at the instance of 0. B. Houston, as he believes at the time written' on the back of said note. The application was made to said A. Houston, at his gate, this defendant being on horseback. This defendant said to A. Houston that, unless the payment of the said note was secured to him, that he, said defendant, would forthwith sue upon it. This defendant intended, the afternoon of the same day,, to come to the village of Abbeville. The said A. Houston asked this defendant not to bring suit, and agreed to make good or secure the debt. The way of doing it was left to A. Houston. Said A. Houston took the said note from this defendant, who was still on horseback, and went with it to his house, and in a short time returned with the note to the gate and handed the same to this defendant, with the writing indorsed thereon. In consequence of this security or signature by said A. Houston, this defendant forbore to sue the said C. B. Houston, as he had intended to do. This defendant denies that there was any agreement or understanding for forbearance to sue 0. B. Houston or A. Houston either for twelve months or any other definite time.
    “This defendant, further answering, saith, that the consideration, as he supposes, of A. Houston’s signature to the note, as aforesaid, was that he, said defendant, would forbear the immediate suit against 0. B. Houston, which he, said defendant, then intended; that said defendant did forbear to sue, but there was no agreement to forbear suit further than as disclosed aforesaid.”
    , The following is the order made at June Sittings, I860, in the bill for discovery :
    ■ Dunkin, Ch. The defendant, William MeCelvy, having-filed his answer to the bill for discovery in this case, ordered that said bill be read, and that the said answer be read as evidence at law before the jury on the trial of the case at law, now pending between the said defendant, plaintiff at law, and the said complainants, defendants at law.
    - Also, ordered, that said complainants pay the costs of this proceeding.
    ■ The defendants appealed, and now moved this Court for a new trial, upon the grounds:
    1. Because his Honor, after charging the jury that defendants’ testator, A. Houston, could only be held liable as guarantor, erred in charging that the suit against A. Houston, 26th October, 1854, was no part of the case. It is respectfully submitted .that it was the very gist of the case.
    '. 2. Because his Honor erred in charging that the question for the jury was, whether forbearance to sue C. B. Houston from 10th October, 1854, till 7th February, 1855, 'was forbearance for a reasonable time, and if so they must find for the plaintiff
    . . 3. It -is respectfully submitted that his Honor should have charged that forbearance for a reasonable time to sue O. B. Houston from 10th October, 1854,. should have preceded plaintiff’s action against A. Houston, the testator. And therefore the proper question for the jury was, whether for: bearance from 10th October, 1854, till 26th October, 1854, was such reasonable forbearance to O. B. Houston as would render the guarantor, A. Houston, .liable for the debt.
    4. Because it is respectfully submitted that it was a question for the Court and not the jury, what was forbearance for a reasonable time.
    The complainants in the bill for discovery also appealed from so much of the order as required them to pay the costs, on the ground,
    Because, it is respectfully submitted, the defendant is liable for the costs, and ought to pay them.
    
      Nolle, for appellants,
    cited Thomas vs. Croft, 1 Strob. 42 ; 2 N. & McO. 133; Chit, on Con. 37, 738, 741; 1 Hill, Oh. 33.
    
      Fair, contra,
    cited 12 Bich. 167, 554; 10 Bich. 17; 5 Bich. 305 ; 2 McM. 313 ; 2 Bich. 72 ; 1 Bich. 399 ; 2 McC. 380 ; 1 Bail. 322 ; 4 Johns. Oh. 504; King vs. Clark, 3 Paige, 76.
   The opinion of the Court was delivered by

Wardlaw, J.

Eor the reasons of incongruity adverted to

in the report, we will lay out of view the counts which treat Alexander Houston as maker and as indorser, and since the case has been argued only in respect to the consideration of a guarantee, confine ourselves to the count in which he is considered guarantor. The consideration of his guarantee was the plaintiff’s promise to forbear suit against C. B. Houston, followed by actual forbearance of such suit for a reasonable time ; Thomas vs. Croft, 2 Rich. 113; 1 Strob. 42. The jury have found the promise, and under the instructions given to them have established the reasonableness of the forbearance which followed it. '

But, say the defendants, the suit against Alexander Houston was premature, and to that suit should have been referred the inquiry in respect to the reasonableness of the time of forbearance.

The promise of Alexander Houston, however, related to suit against C. B. Houston, not to suit against himself. To be sure the condition precedent — forbearance towards 0. B. Houston for a reasonable time — must have been performed before an action would lie against Alexander Houston; and if Alexander Houston was sued prematurely, the action against him which abated would have failed if it had come tq trial. But failure in an action prematurely commenced does not bar recovery in another action brought after the right has matured. Here nearly three years intervened between Alexander Houston’s promise and the commencement of the action against his executors; and the true question was that which was submitted to the jury: was the time during which forbearance was extended towards C. B. Houston reasonable ?

The defendants object to the order made in equity requiring them to pay the costs of the proceedings had under their bill for discovery. Their case comes under the general rule recognized in McElwee vs. Sutton and Black, 1 Hill, Ch. 33. The exception there approved does not here apply, and the rule is here strengthened by the result, unfavorable to the defendants, had at law after the discovery obtained by them.

The motions are dismissed.

Dunkin, C. J., and Ing-lts, J., concurred.

Motions dismissed.  