
    William Manning against J. Shotwell and others, executors of J. Shotwell, dec.
    on certiorari.
    °^onI^s¿<j“ri|^e notice to cred-brought credigives prmciter this the^ security is l30un<i-
    
    THE action below was brought by the executors Jacob Shotweli against Elkanah Drake and William Manning, upon a sealed bill, dated 6th July 1814, for 92 lars, with interest, on which some payments were made and credited.
    _ On the return of the summons the plaintiffs filed their demand, and one of the defendants, Manning, “ denied the demand.”
    At the trial, after the plaintiffs had rested their evideuce, the defendant, Manning, offered to prove, that was only a security on the bill; that while Drake, the principal, was in good circumstances, and after the note was due and payable, he, (Manning) called on the plaintiffs and fold them that he was only security, and that they must prosecute the bill, or he would stand security no longer. That they did then prosecute the bill before justice Vermvle, when Drake applied to them and offered to pay them 20 dollars, and give them á new note, with other security, payable in one year; that they received 15 dollars from Drake, and agreed to give him further time ; that this was done without the knowledge or consent of said Manning; that since that time, to wit, on the 18th of June 1819, Drake assigned away his property and stopped payment; and that from the time of discontinuing the suit before justice Vermule, to the time of bringing the presentaction, he had paid debts to a considerable amount. *A11 which evidence was overruled and the jury found a verdict, and judgment was rendered against both defendants for 82 dollars and 90 cents.
    
      The counsel for the plaintiff, (Ghetwood)
    relied for the reversal of the judgment, on the overruling this evidence alone, and referred to 7 John. 337. 10 John. 595.
    
      
      
         See Pintard vs. Davis, Spen. 205, 1 Zab. 632. Grover vs. Hoppock, 2 Dutch. 191. Morris Canal vs. Van Vorst, l Zab. 100, 116. Freehold Banking Co. vs. Brick, Feb. Term, 1875. But see Bell ads. Martin, 3 Har. 167. Solomon ads. Gregory, 4 Har. 112. Paulin vs. Kaighn, 3 Dutch. 503, 5 Dutch. 501. United States vs. Howell, 4 Wash. C. C. 620. Irick vs. Black, 2 C. E. Gr. 189. Atwater vs. Underhill, 7 C. E. Gr. 599.
      
    
   Kirkpatrick C. J.

The defence in this case, in my opinion, is wholly insufficient in the law, and wholly unsupported by any case or principle of decision in New-Jersey. Therefore, let the'judgment be affirmed.

Rossell J.

was of the same opinion.

Southard J.

Upon the admissibility of this evidence, it is proper to remark, 1. That no difficulty arises from the mode in which the defendant, Manning, pleaded. In the court in which he was, there is no necessity for a written plea, in any case, except where it is specially pointed out by the statute. If the defence, therefore, was a good one, the evidence was competent under the pleadings.

2. If the facts, offered to be proved, are sufficient to discharge the security from a liability to pay a sealed bill, he had a right, in that court, to avail himself of the defence. If he can prove the facts; and those facts discharged him from the debt; those facts may be proved in an ordinary suit, on the bill, in a court of law. There is nothing in the nature or character of the defence which requires him to seek protection in a court of equity.

3. The facts offered to be proved, present this question. Can a security upon a sealed instrument, after the day of payment is passed, require the creditor to prosecute; and if he does prosecute and afterwards, without the knowledge and consent of the security, alters the mode and extends the time of payment; so that the principal fails and security is thereby injured, will he be discharged? And I think the question may very safely be answered in the affirmative. The rights of a security are always favoured. He is bound to the extent of his undertaking, but no farther; Neither the creditor, the principal, the court, nor any other power, can carry his engagement beyond what he has consented to. A new contract cannot be made for him, without his consent. It is true, a mere delay in calling on his principal, will not, either *at law or equity, discharge him; because such delay is presumed to be with his approbation, unless it otherwise appears. But if he objects to the delay; if, at his request, the. creditor agrees to enforce the payment, and commenees a suit, he ought not afterwards to violate the agreement, select another day and mode of payment, and thus create a new contract against his will. For the overruling of this evidence, therefore, I think the judgment should be reversed.

Judgment affirmed.  