The opinion of the Court was delivered by
Gibson, C. J.
The argument has brought into review our former determination of this cause, the defendant insisting on the policy of adhering to precedents, even when the principle of them is wrong. Though the doctrine of stare decisis is of undoubted obligation ; yet there seems to be a substantial difference between changing an admitted principle, and overruling a decision which is but evidence of it; the former partaking of legislation, which, is foreign to the business of the judiciary, while the latter is incontestably within the pale of its authority. On this distinction alone can the blunder of a court of the last resort be remedied, even by awarding a new trial for misdirection; or the mischief of a bad precedent be abated. It is not very unusual to depart from an erroneous decision, which has not yet grown to be a rule of property, especially while the error may be nipped in the bud, and its consequences be arrested in the cause in which it was' committed. Still, when such a decision has gone to the profession for the guidance of their clients, it ought not to be'lightly departed from, even in the same cause. But where it can be sustained only by the sacrifice of a principle, or the overthrow-of a decision more consonant to the jurisprudence-of the land, it is not the privilege, but the duty of the judges to recur to fundamental principles. Tojdetermine the fitness of a case for such recurrence, is the most delicate task that can be set before a judge, and one [287]*287which calls for all his prudence and discretion. This much, however, may be safely said, that to doubt of the propriety of such recurrence, is to make manifest the propriety of abstaining from it; but that to explode a pernicious principle founded in a decision palpably erroneous, can .never be a measure of doubtful, propriety. Before proceeding, in accordance with these precautionary principles, to reconsider our former judgment, it is proper to remark, that the point on which it was made to turn, was suggested by the judge who delivered the opinion of the court, at a late period of the argument, and adopted in a press of business by a bare majority of the bench.
That a creditor is not bound to apply his securities, or resort to the principal in the first instance, is a conceded result of the precedents and practice of courts of equity here and elsewhere. What more is there in the case to affect these obligees ? They incurred no disability to sue the principal obligor; parted with no means of obtaining satisfaction from him ; disregarded no monition of the surety; impaired no security; nor did any other act or thing which is usually supposed to dissolve the contract. Nothing of the sort is pretended. They said nothing or did nothing but reform their imperfect conveyance—a thing they were compellable to do, and warn a subsequent. purchaser from the principal debtor of .a lien which the law had created for the security of their debt. It is said, however, that in supplying the' defects of the original conveyance, they parted with the means of extorting Satisfaction from the principal, or the purchaser under him.. But they were bound, not only by the terms of the contract, but by every principle of common honesty, to, do what accident had prevented them from doing effectually in the first instance. The defect in the first conveyance was so palpably the effect of accident, that no chancellor would have hesitated to amend it without terms, or superadded consideration : and what more was in fact done ? A formal receipt for the purchase money was appended, which, it has been said, might impair the lien, or even discharge it, by having induced the subsequent purchaser to involve himself in responsibilities for the defendant to third persons, under, a belief that the plaintiffs were paid. But it is conceded that enough to answer the demand is still in his hands; though, it is said, he may have precluded himself from a defence to his bonds by haying encouraged a holder, for value, to take an assignment of them. A decisive answer to this is, that there is no evidence of any thing of the sort in the case ; and a surety is not to be released for a possible or speculative injury. But viewing this receipt, not as a duplicate of that appended to the imperfect conveyance, as it really was, but as an original; it afforded no room for an inference of actual payment, or of any thing beyond the substitution of an independent security for the debt created by the contract of purchase. It is a notorious .practice, in transactions of this sort, to subjoin a receipt for purchase money, not paid, but secured by a bond or mortgage taken in satis[288]*288faction of the original contract. It is not pretended, however, that the statutory lien was gone, but that the release, being at least evidence of payment, might have embarrassed the surety in the enforcement of the lien, had he succeeded, by subrogation, to the ownership of it; and the interposition of any perceptible obstacle to his recovery, on any one of the original securities, is supposed, on the authority of Hayes v. Ward, 4 Johns. Ch. Rep. 123, to operate a discharge of him. To be sensible of the difference between that case and the present, it is necessary but to advert to its features. A surety who had been arrested in a neighbouring state, and probably with a view to extort payment from his supposed inability to procure bail, brought a bill for an injunction, charging that a collateral security taken by the. creditor had been secretly tainted with usury by the immediate parties to it; and the allegation of this, essential fact was not contradicted in the answer. That collusion with the principal gives the surety an equity, is not to be contested ; for it must stand indifferent whether the security, on the credit of which the surety was drawn into the contract, has been impaired by the creditor subsequently, or in its concoction. The authorities show no difference; and the wonder, therefore, is, that instead of ordering the security to be put to the test of experiment, by an action on it, the creditor was not perpetually enjoined. The chancellor seems to have considered his omission to answer this part of the bill, not as a confession of it, but'a circumstance that cast a suspicion on the respondent’s title which it was incumbent on him to remove by a legal proceeding; and the business of doing so seems not to have been imposed as a duty, but accorded as an indulgence. Now what is the case before us ? The vendors had appended to the conveyance the usual receipt for the purchase money, which, though competent to go to a jury, is destitute of effect, as evidence of actual satisfaction ; and whether this were done before the relation of principal and surety was constituted, is, on the principle of Hayes v. Ward, entirely immaterial. If the existence of such a receipt alone were to discharge the surety, the intent of the parties would be frustrated in all cases ; for the practice of delivering an acquittance with the conveyance, at one time supposed necessary, perhaps to release the title from an equitable lien for the purchase money, is so general, as to seem, to the popular apprehension, a formal part of the act of execution. But what impediment could it offer to an action on a bond, or other security, taken at the date of the receipt, or previously ? The almost insensible presumption to which it gives rise, would be rebutted by the universality of the practice to which it owes its existence. I, therefore, turn from these considerations, mainly relied on in the argument, to those relied on by the majority, of which I was one, in the former decision.
It is not easy to ascertain, from the report, the specific ground on which the supposed equity was put. It seems to have been taken for granted that the receipt would not preclude the vendors, or the [289]*289surety in their stead, from showing the lien to be unsatisfied ; and that the subsequent purchaser stands, in relation to it, as did the principal debtor, his predecessor in the ownership of the land. Neither was it asserted that the creditor is bound, on any general rule of equity, to proceed against the principal, in the first instance, or exhaust a fund liable to satisfaction, before resorting to the principal, or surety, at his pleasure. The decision seems to have been rested mainly on a principle borrowed by the chancellor, in Hayes -v. Ward, from Wright v. Nutt, 1 H. Bl. 136, on which last case we are forbidden to rely as a precedent, and the foundation of which it is, therefore, the more necessary to examine. Had the principle of Wright v. Nutt not found its way into our jurisprudence through the decision of a court eminently entitled to respect, its authority would not now have been a subject of discussion. In that case the prayer of the bill was, to be protected from an action at law, till the creditor should have exhausted his means of obtaining satisfaction from the debtor’s estate, confiscated by an act of attainder passed by the legislature of Georgia, but subject to the demands of those who were friendly to American independence; to which class the prosecuting creditor belonged. An injunction was granted ; and the first thing to be remarked is, that the decree distinctly overruled Holditch v. Mist, 1 P. Wms 695, to say nothing of Kempe v. Antill, 2 Bro. Cha. Rep. 11 ; and that it has, in turn, been shaken to its foundation, if not overruled, by Wright v. Simpson, 6 Ves. 714. It is fair, however, to say, that it seems to have received countenance in Cottin v. Blane, 1 Anstr. 544. That it is entitled to as little respect on the foundation of principle as of precedent, may be inferred from the reasons given in support of it. As in the case of our former determination of the present cause, it is not easy to ascertain the specific ground on which the decision was rested.- There was no proof of collusion between the creditor and the American commissioners, even if there could have been such a thing : and the suggestion in the note to Kempe v. Antill, that the creditor “ had actually made application, but had not diligently or honestly continued that application,” affords no colour for the conclusion attempted from it, unless it be taken for granted that the creditor was bound to make the application in the first instance; and that would bring the argument round to the point from which it started—an assumption of the principle to be sustained. Subsequently to his application to the commissioners, the creditor had gone into a court of law to enforce an undisputed legal right against the person of his debtor, and was restrained -for no reason, that I can discover, but the existence of a fund.within his power, the benefit of which he was required to procure in violation of the spirit of his country’s laws, for one who was disabled by those laws from procuring it for himself. That this had been previously deemed a sufficient reason to control a legal right, was -not pretended. The existence of a pledge, or other security, had never been allowed to prevent an immediate recourse to the person; and it certainly [290]*290could not make a difference favourable to the argument, that the pledge, in the case before the court, was not reserved by the parties, but interposed by a superior power, without the consent of the creditor. The decree may, it seems to me, be fairly set down to the score of the instinctive repugnance of courts of justice to measures of violence and wrong, inseparable from political convulsions. Something, too, may be allowed to national excitement at the disastrous result of a civil war pregnant with bitter recollections. But though it might have been fair in the mother country to say, “ Since you will not permit the demands of creditors who were favourable to our authority to be satisfied out of the debtor’s property within your grasp, we will not suffer his person or effects to be molested here, by those who were favourable to your independence still, such a measure of retaliation would have come with a better grace from the legislature, than from the courts. In fact, a bill for the purpose was brought into parliament, but dropped, on an intimation given by Lord Thur-low, that the powers of the chancellor were adequate to the object. A decree thus produced is certainly an insecure foundation for a permanent principle of new and specific equity. But allowing it the effect of a precedent, what does it prove ? Not that the existence of a fund which would be as accessible to the surety as it is to the creditor, controls the right of resorting to the person. Such a doctrine would compel the creditor, in every instance, to apply his lien or other security, in the first place, and exhaust the fund wherever he could approach it. There may possibly be extreme cases in which a suit at law would be restrained as vexatious and oppressive— as when the creditor has but to hold out his hand to receive his debt from a fund in court—but that is not our case; nor is it pretended that there is any personal disability, on the part of the surety, to deprive him of any benefit from the lien which the creditor himself could have from it; so that the groundwork of Wright v. Nutt, which suggested the principle of Hayes v. Ward, is entirely different from that which we have here.
But the chancellor, in Hayes v. Ward, declared that cases of the sort are to be determined, not on any rule analogous to that of the civil law, but on their special circumstances; and what have we here to throw the vendors on their lien as a primary resort ? The operative one is said by the judge who declared our opinion, to be the warning given to the subsequent purchaser, of the existence of the lien and the purpose of the vendors not to relinquish it; which seems to have been considered a taking to the land exclusively, that bound them on principles of election, by reason of its supposed tendency to lull the surety, and prevent him from taking measures of security in respect to the principal. That a creditor is bound to elect between friends or persons concurrently liable, or is compellable to pursue exclusively the one to which he first has had recourse, will not be pretended. In the movement of the vendors for the preservation of their lien, there was nothing to disarm the surety, or [291]*291that would not have been understood by a man of ordinary sagacity. So far from holding out to him an assurance of exemption, the notice evinced but a prudent attention on the part of the vendors to the preservation of all their securities. I will not say, that a subsequent purchaser of a title derived through an order of sale by the orphan’s court, is not bound to take notice of the lien, or that warning him of it was not superfluous; but the course pursued was at least an honest one, and proper to apprise him that a part of the purchase money was still unpaid; especially as a formal receipt had been given when the period of payment fixed by the conditions of the sale had elapsed. It was by no means inconsistent with the vendor’s duty to the surety : for it is not easy to see how the latter could be prejudiced by a measure taken for the common benefit, and thought, though perhaps erroneously, to be necessary to his protection. I am not prepared to say that notice was indispensable to the preservation of the lien, as a knowledge of its original existence might be sufficient to. put a purchaser on inquiry as to the fact of its subsequent extinction; or that the vendors were bound to more, as regards the surety, than abstinence from positive acts that would impair it: but clearly the notice, being a measure of extreme caution, for the benefit of all parties, ought not t'o have inspired the surety with an expectation of exemption. But no prejudice was in fact suffered by him; for it is not pretended that he was induced to forego the use of any means to procure indemnity from the principal; and as to the defendant, his executor, it is sufficient that the assets are yet in his hands. Even were they not, the distribution of them, without having taken refunding bonds, would have been such negligence as to preclude a defence on that head. Evidence of the facts contained in the notice of special matter, furnishing as they did no substantial defence, ought therefore not to have been admitted. As to the other branch—that the claim was not preferred within the period of the publication of notice, fixed by law for the creditors to come in—that would be made available only by showing the assets to be deficient, which is not pretended. Notwithstanding our repugnance to depart from a previous decision, therefore, we are satisfied that justice requires the cause to be put before another jury.
Huston, J.
This cause has been before this court twice before, and is reported in 10 and 16 Serg. & Rawle. The decision of the court in the first report turned on whether the bonds in suit were joint, or joint and several, and is certainly not free from difficulty. The construction there put on those bonds is not, I think, supported by any authority; and the insertion of the words, “ each of us,” after the names of the obligors, is a liberty with the contract of the parties, which courts do not often assume; and this decision is, I think, inconsistent with subsequent cases.
The opinion of the court in the present instance directly overrules that given by this court in 16 Serg. & Rawle; and does more, for [292]*292the facts are brought before us in the present instance more fully, than they were in that case. I do not know that I would trouble the profession with a dissenting opinion, were it not that this is the second instance at this adjourned court, in which a bare majority of the court have overruled a prior decision in the same cause. No doubt every court which has ever existed has given decisions which, on reflection, require correction. Much and full reflection ought, however, to be given by the court which overrules a prior decision of its own, given in the same cause, between the same parties, on the same facts. This, says chancellor Kent, ought never to be done, but on the most cogent reasons. In the present case the facts are not the same, but where they differ they make a stronger case for the defendant. After the plaintiff had read his two bonds, payable on the 1st of April 1814, and on the 1st of April 1815, and the receipts indorsed on them, he rested.
The defendants then gave in evidence the petition of the heirs of John Carper, praying for a sale of the lands of said John, which had been valued, and which his heirs had refused to take at the valuation. The court ordered said lands to be sold on the 16th of March 1810, on the following conditions; one half the purchase money to be paid in hand, and the residue in five equal annual payments. At an orphan’s court, 1st of May 1810, the administrators reported a sale to Adam Hawk of one hundred and sixty-seven acres and ninety-one perches, at 26 pounds 7 shillings and 6 pence per acre—and other parcels to different purchasers. “ All sold on the terms in said order prescribed.” The report was approved, and the court decreed “ that the sale, so as aforesaid made, be and remain firm and stable for ever.” Not one word about when the deed was to be made, in the record.
The record then, as presented to us in the paper book, states, that defendants offered in evidence the matters contained in the notice of special matter.
It will be observed, that this does not purport to be the whole of the offer, but only the part objected to. What the rest, was we know not. After the court had received the testimony so offered, the defendants gave in evidence the records of common pleas of Lebanon county of the 5th of August and 7th of November 1832, showing the discharge of Adam Hawk as an insolvent debtor.
The plaintiff then gave in evidence the will of Michael Hawk, dated 14th of September 1813, and probate in 1815; and called John Gloninger, who proved that he drew the deed from the administrators of John Carper to Adam Hawk in March 1817; that he believed no money was then paid; that it is usual to give receipts such as this when bonds are taken for the gales; that he saw no bonds; that in drawing the deed from Adam Hawk to Wilmer he discovered the defect in a former deed to Adam Hawk, drawn by Hollingsworth, that contained no words of grant, &c.; and informed the parties that Adam Hawk and his counsel directed him to draw another deed from Carper's administrators to Adam, which he did, and the administra[293]*293tors came and executed the deed willingly without making any objection. After stating something not material about Michael Hawk’s will, he said the receipt would imply that some money was paid at the time of executing the deed. (By referring to the deed, the receipt was in these words, “ Received on and before the date of the within written indenture from the within named Adam Hawk the sum of 4700 pounds 17 shillings and 6 pence lawful money of Pennsylvania, it being the full consideration money on the said indenture mentioned.” Signed by the three administrators.) But he remembered nothing of any being paid.- “ There was nothing said about the purchase money being unpaid.” He then proved something about the bond of indemnity given by Adam Hawk, Martin Thomas, and John Wolfersberger to P. Witmer, which bond was read, dated 3d of April 1817, the same day as the deed of A. Hawk to Witmer. The plaintiff then gave in evidence again the full record of the proceedings in the orphan’s court of Dauphin county respecting John Carper’s lands.
It was then admitted by the parties, that about 4000 dollars were retained by Witmer after Geddis’s notice to him—say two bonds of 738 pounds 2 shillings and 6 pence each, payable in. 1819 and 1820; and it was stated in court during the argument, that Witmer attended in court at this and the last trial with the money in silver.
The plaintiff gave also in evidence the record of two suits, No. 15 and 16, of November term 1818, by the administrators of Carper against Adam Hawk, and judgments thereon; and also gave in evidence certain judgments against Adam Hawk, to which they contended the bond of indemnity applied; and offered and tendered to defendant an assignment of the rights of the plaintiff against the fund fixed, by the sale in the orphan’s court, dated 7th of August 1829.
The defendant gave in evidence the record of two suits, No. 23 and 24, of November 1821, discontinued. These, I understand, were a scire facias, and an ejectment by the present plaintiff against Witmer.
Many points were, according to our custom, submitted to the court; but in the argument here, the counsel said they would rely on the bills of exception to testimony and the eleventh point.
The eleventh point was, “ that from the evidence given at the trial, and from the tender now made by Robert Geddis and Samuel Carper, of the assignment, by their deed, of all their right and their remedies to the administrators of-Michael Hawk, to substitute him in their place, and clothe him with all their securities relating to the real fund, and from their offer to file this deed off assignment under the direction of the court of record in this cause, upon their obtaining a verdict, either conditional or absolute : from all this evidence, and from this tender, the plaintiffs are entitled to an absolute verdict.”
This was answered by the court, by saying, that from all the [294]*294evidence stated in the point, together with the tender of the deed of assignment, the plaintiffs were not entitled to an absolute verdict, if the jury should be of opinion that Michael Hawk was only a surety in the bond.
This brings the cause to the third error assigned, viz. that in the trial of this cause in the court below, the equity and the law of the land have been manifestly departed from in the charge of the court and verdict of the jury, and in the opinion of the court in refusing to exercise their peculiar and exclusive power to vindicate and presérve the law of the land from invasion and violation by a jury.
It may be admitted, that both at law and in equity the situation of sureties is materially different from what it was less than a century ago. At law, all who signed the bond or writing were considered equally principals, and no averment that one was surety was admitted. I do not know that at present any judge or lawyer would say, it may not be proved that one of the obligors was a surety; and that certain acts of the obligee will discharge a surety, which would not discharge a principal. Theobald on Principal and Surely 117—130; 17 Johns. Rep. 391.
Even in chancery, I think Lord Hardwicke refused to interfere for a surety in a manner which is now so much the course of that court that no man would question it. Certain acts of the obligee seem to be admitted everywhere as amounting to a discharge of a bail warranty; but what will amount to such act is not exactly agreed upon in all courts.
The following may perhaps safely be stated as a part of the cases in which a surety is discharged by the act of the creditor.
Where the principal is discharged either totally or on paying a part, the surety is discharged; and in equity, an agreement to discharge the principal, and an assignment by the principal in pursuance of such agreement, discharges the surety, though no release of the principal be actually executed. Theobald on Principal and Surety 114, 115, 116.
Where the parties (that is, creditor and principal) make any new agreement inconsistent with the terms of the original one ; or if they agree to make any alteration, either in the terms of the original agreement or in the mode of performing them, without the consent of the surety; the surety is discharged (Theobald 119 to 122): and the court are not to inquire minutely what injury the surety sustained, it is enough that he might have been prejudiced; and they are not to inquire what injury he did or will sustain. Theobald 123 to 131.
Where the creditor, without the consent of the surety, agrees to give time to the principal, the surety is discharged. Theobald 127, 180 to 182. It is not, however, the law, that the bare negative act of refraining from suit; but some agreement of the creditor which ties his hands and prevents him for a time from suing; which discharges the surety. Theobald 136; Cope v. Smith, 8 Serg. & Rawle 112.
[295]*295Where the creditor parts with securities, or any fund which he would be entitled to apply in discharge of the debt, the surety is exonerated, at least to the extent of such securities; because securities which the creditor is entitled to apply in discharge of his debt, he is bound either so to apply, or to hold them as a trustee, ready to be applied should the surety desire it. Theobald 143; 8 Serg. & Rawle 452 to 458. And this continues if there be two judgments against principal and surety. 8 Serg. & Rawle 458; Union Bank v. George, 5 Peters 99. And this principle is put in stronger and more appropriate terms by the chief justice in 13 Serg. & Rawle 159. Where the creditor has the means of satisfaction, either actually or potentially in his hands, and does not choose to retain it, the surety is discharged.
On this same principle, this court, in Commissioners of Berks v. Ross, 3 Binn. 520, decided, that the agreement to permit a principal debtor who had been arrested, to enter common bail, in consequence of which he left the state, discharged the sureties.
The same principle goes to discharge a surety, where certain things are by the agreement stipulated to be done, which would benefit the security or lessen his risk, and the creditor neglects to have these things done. Theobald 146, 147. Much more will it apply where the creditor actually gives up what existed at the time of the engagement of the surety.
When a surety cannot, in a direct manner, or in his own person, obtain the benefit of securities or funds which are by the agreement set apart for the creditor, equity will restrain the creditor from proceeding against the surety until he has resorted to these funds. Theobald 256; Hayes v. Ward, 4 Johns. Cha. Rep. 123.
I could cite, without much trouble, many other authorities, but they will be found in the books and cases referred to, and some others I shall mention. The modern doctrine, and that of common justice and common sense, is, that there is an understanding in all cases, that the creditor ought to look to the principal, and not unnecessarily to the surety: that he is at least bound not, in any the slightest degree, by any act of his, to lessen the security of, or otherwise do injury to a surety.
Courts of equity, says Judge Spencer, 17 Johns. Rep. 392, 394, when they interpose to compel, at the instance of a surety, a creditor to sue the principal, undoubtedly proceed on the sound and just principle, that it is the duty of the creditor to obtain payment of the principal debtor, and not of the man who is a mere surety. In every such case, a court of equity proceeds on the pre-existing equitable obligation, binding on the conscience of the creditor, to exert himself to obtain payment from the real debtor, who ought to be coerced to pay it. And again he says, where is the man who will boldly avow the unjust and immoral principle; that, after his debt has become due, and he has been solicited by the surety to proceed and collect it, he will abstain from suing, with a view of favouring [296]*296the principal and throwing the loss on an innocent man, who from motives of friendship or humanity became a surety. Theobald's treatise is replete with the same doctrine. The supreme court of the United States say, in Bank v. Gracy, 5 Peters 114, there is a moral obligation resting on the bank to do the very thing. their attorney stipulated to do, i. e. to issue execution against the principal. Every consideration of justice and equity, in a moral, though not in a legal point of view, called on them to use due diligence to obtain satisfaction of the debt from the principal, before recourse was had to the surety.
Let us now compare some of these principles, and apply them to the facts of this case. It must be observed, that no one part of the proceedings in the orphan’s court to procure the sale, nor the order or decree of the court, say one word about the time when a deed was to be made by the administrators. The act of assembly of 2d April 1804, sect. 1I, directs that “the court shall confirm the sale and decree the estate in the premises so sold, to be transferred and vested in such purchaser, as-fully as the intestate held the same at his decease, subject and liable to the payment of the purchase money, according to the terms prescribed by the court in the order of sale.” The bonds were given on the 1st of April 1810. The first deed.drawn by Hollingsworth, and which was defective, and seems to be admitted to have been inoperative as a deed, was not made till the 6th of April 1811. The three first payments seem to have been made; but those due the 1st of April 1814 and 1815, were unpaid. Two years after the last was due, Adam Hawk agreed to sell to Witmer, and calls on the administrators for another deed. They were under no obligation to make him a deed until the money was paid; had entered into no contract binding themselves to make him one. The money had been due two or three years, and ought, to have been collected and paid to the heirs of Carper. Michael Hawk, the surety, had been dead two. years, and his executors had given the notice prescribed by law, to them if they claimed, and to all claimants against his estate, to produce their demands. In the face of all this they make a deed and give a receipt, that on that day and before they had received the whole purchase money, &c. The purchaser could not have supported a suit at law for not making the deed until he paid or tendered the purchase money. No case has been cited to show that a chancellor would have decreed a deed, and no dictum referred to; no principle stated on which it can be predicated that he would have so decreed. The making the deed, whether we refer to the first in 1811, or to the second in 1817, was,, as much as in them lay, giving up the power they had to compel the payment of the purchase money. The title was in them; the power to compel the payment out of the 8000 dollars paid in hand by Witmer was in them; and they carelessly, or wantonly, or wickedly refused to exercise it; and it seems to me to fall within the spirit of many of the authorities cited, and within the very words of the present chief justice in Lightenthaler v. Thomp[297]*297son, 13 Serg. & Rawle 159; where the creditor has either actually or potentially the means of satisfaction in his hands and does not retain it, the surety is discharged. One word would have produced the money. I do not say the land does not continue liable for this money in the hands of Witmer. It is not necessary to decide on that point; to a certain extent it is liable. The record is not full in that part which relates to Witmer; it states that he has retained 4000 dollars, but it was staled by the counsel on both sides, I think, in addition, that Witmer, at every trial of this cause, had attended in court with his money in silver. If this, or part of it is so, there may be a question whether interest can be recovered from Witmer. And if he has been ready to pay his money from 1822, and brought it into court, (though that, except in one point of view, may be immaterial in this cause), it may be found impossible to recover interest from him. And who is to lose that interest, the defendants or the plaintiffs ? The plaintiffs have varied the situation of the parties, and by so doing have discharged the defendant; and we are not to enter into disquisitions as to how far that alteration will affect them.
In one point of view this case presents a novelty. By the order of the court, and the terms of the act of assembly, which forms the contract, the land was, and perhaps is, bound to pay this money. The owner of the land is notified of this by the plaintiffs, and told he will be held liable, and forbidden to pay any more to Adam Hawk. He retains his money for the plaintiffs; he keeps it ready; but Adam Hawk, or those to whom Adam Hawk had assigned Witmer's bond, forbid him to pay to plaintiffs: and perhaps he is right in not paying till a judgment against him in favour of plaintiffs. The plaintiffs say and insist, that Witmer is liable, and that the defendants can, after paying, recover from him. Yet the plaintiffs, who insist he is liable, have twice sued him, and twice discontinued their suits; once after the opinion of this court on facts not so full for the defendants as appeared at this trial. Did the plaintiffs feel it their duty, in order to reach a surety, to discontinue twice against the principal ? or did they feel it their duty to obtain from this court a reversal of its former decision, lest they should be guilty of the sin of collecting money from the real debtor and proper fund? or is there some wilful or some fraudulent design to oppress the defendants, and favour Witmer or those who hold Witmer’s bond ? In Cope v. Smith, 8 Serg. & Rawle 118, Chief Justice Tilghman intimates that there may be cases of such collusion by a creditor as would discharge a surety. And if a jury would find that some such collusion existed in this case, it could not be said they found without evidence.
The counsel for plaintiffs, in concluding, told us, if plaintiffs were sent to Peter Witmer, they would be delayed and perhaps defeated; but that the defendants could recover from him at once. I cannot understand this, or if 1 do understand it, it must mean that the plaintiffs will lose the interest in a suit against Witmer, or that Witmer [298]*298can prove something against the plaintiffs more than we know: perhaps I don’t understand it at all.
It is now twenty-two years since the sale. Will the lien for the purchase money continue for ever 1 There was no offer to bring suit, or to permit the defendants to bring suit, until during this trial. If the conduct of the plaintiffs in varying the situation of the parties, in giving up the power of compelling payment by returning the deed, of releasing the lien as far as in their power, of refusing to apply to the proper and peculiar fund, or permitting the defendants to resort to it, do not estop the plaintiffs from an absolute verdict in this case; it must be, as it seems to me, because the law of the whole civilized world, as administered for the last fifty years, is to be changed.
But another matter was much urged during this cause. Not content with insisting that this court had mistaken the law, juries generally, and especially those of Lebanon county, were assailed; and not only juries, but courts who did not control them, and keep them under proper subjection as to their power over facts. On this subject I have heard much, and had, as lawyer and judge, nearly forty years experience. Of perverseness and prejudice in successive juries in finding against the right and law of the case, I have heard much, but I know nothing. I have seen verdicts set aside, and rightly, and where there is no dispute as to facts, and the jury undertake to find the law in opposition to the courts, they are always rightly set aside. But I neither know, nor ever heard of successive juries doing so in any case. A single jury may have done so, but it is a rare occurrence ; and for once that I have known a jury undertake to decide the law in opposition to the court, I have known ten cases where the court drew different conclusions of facts from the jury, and in at least nine out of ten of such cases the jury were right and the court wrong. A court which undertakes to control a jury as to the credibility of witnesses, or as to the facts or inferences from the testimony in a cause, is as much out of its duty as a jury who undertake to overrule the court as to matters of law.
I do not know what is meant by the phrase, that in our equitable jurisdiction the jury find the facts and then the court decide the law; I know the constant and necessary practice, but those who use the same phrase, seem to mean something different; they say they mean something different. If it be meant that the jury must go out and find the facts, and come in and state them to the court, who are then to decide the cause; it means what is impracticable and absurd. Under our present practice, that the court states the law and the jury retire and find their verdict, whether in legal or equitable contests, I believe justice is as well administered in this state as in any part of the world. Some moré equitable authority ought to be given in a few cases; but of all the modes which have been proposed of improving our judiciary system, any one which restrains the weight and power of juries, as I have seen it exercised, would be the last in which I would concur.
[299]*299Our usage and law is, that a party may give in evidence the facts on which he relies as an equitable defence: these facts may be the testimony of persons who saw and heard the whole of the transactions, or of the agreement of the parties in writing, or it may be of facts and circumstances, admissions, &c., from which a jury infer that certain facts took place or agreements were made; in other words, it may consist of direct or circumstantial testimony. I do not understand, perhaps, what is meant by a case calling for strict proof. If it means that circumstantial proof from which a jury can and do infer a fact, is not equal to positive proof of that fact, I deny it to be law. There is no possible case in civil or criminal law in which any fact may not be made out by circumstantial as well as direct proof; except, perhaps, where a positive legislative enactment requires a specific kind of evidence ; and the power of the jury is peculiarly their own in determining on evidence, all or a part of which is circumstantial. These observations may not appear pertinent to the record in this case, but were required by the course of argument in the case.
I am, then, of opinion, that the whole of the evidence was rightly admitted. That unless the facts on which an equitable defence is founded go to a jury, our equitable jurisdiction is, to all useful purposes, at an end. That it may be possible for a court in some cases to say a priori, Your proof, if - given, will not amount to a defence: yet there are few such cases come into court, and this is not one of them. No counsel can state precisely what a dozen witnesses will state ; no court has the right to judge of the credit of each of those witnesses, or to select what it will believe and what it will reject. The jury is an essential part of our judiciary—no court will long continue to assume the functions of a jury, and none ought to be permitted to do so.
I am further of opinion, that if the jury found the facts in,a certain way, there was a valid defence in law and equity, and the judgment ought to be aifirmed.
Judgment reversed, and a venire de novo awarded.