Comegys v. Booth

3 Stew. 14

• Court: Supreme Court of Alabama
• Decided: July 15, 1830
• Status: Published

Opinion

By LIPSCOMB, Chief Justice.

The contract between the agent for the plaintiffs, and Garner, underwent the consideration of this Court, some time ago, in a case between the same plaintiffs and Cox and Harris, the sureties of Garner, in his writ of error bond. On much consideration, it was then unanimously held, that the sureties were discharged, on the principle that a contract founded on a good consideration, giving time to the principal debtor without the consent of his sureties, discharged them from all liability. This doctrine we have since recognized in the case of Ellis v. Bibb,

a and we conceive that it is too well settled now to be questioned. The plaintiffs in er-rorhave endeavored to evade its force in two ways; first, that no time was given by the contract, that execution could not have issued sooner than the 10th of August, according to the ordinary intercourse between the office of the clerk of the Supreme Court and that of the Circuit Count will not hazard a conjecture as to what would have been the lapse of time, from the affirmance of the judgment at the jun0 term of ^ Court, and the 10th of August; it will be sufficient to bring this case within the rule, if the creditor had, by his own contract, deprived himself of the legal right to proceed against the principal, for any period of time, however limited.

It was next contended, that an injury to the secui’ities, by placing them in a worse condition than they otherwise ■would have been in, must be proven to have resulted from .giving time to the principal, in order to discharge them :from’liability. It is well settled that no injury to the se-.eurities need be proven, they being allowed to judge for themselves, whether the new contract has secured them or not. We are therefore of opinion that the decree of the Circuit Court granting relief was proper.

Decree affirmed.

Judge Taylor not sitting.

2 Stewart 63.