Halstead v. Brown

17 Ind. 202, 1861 Ind. LEXIS 352

• Court: Indiana Supreme Court
• Decided: December 2, 1861
• Status: Published

Opinion

Perkins, J.

This was a suit upon a promissory note, made in Ohio, and bearing 10 per cent, interest upon its face. The suit was against a- surety. Judgment below for the plaintiff. The amount involved- invited and justified the very elaborate and able briefs that have been filed, but the case is a plain one. A bill of exceptions was corrected and signed by the judge who tried the cause.

The appellant contended that the bill was Incorrect, and procured a mandate from the Supreme, Court to the judge below to correct it, or show cause, ■ &c. The mandate was served, but no return was made by the judge. On a rule for attachment,, the return was, that the judge was dead. If the judge who tried the cause could have corrected the bill without the consent of both parties, a point we do not decide, '(see Heaston v. The Cincinnati, &c., Co., 16 Ind. 275,) we think no other judge could, and that the remedy in that particular was at an end. See Perk. Prac. 312; ex parte, Bradstreet, 4 Pet. Sup. Ct. (U. S.) Rep., p. 102. The judge signs, or refuses to sign, a bill of exceptions upon his own recollection of the facts-of the case, refreshed as it may be from any sources existing.

The defenses set up in bar of the suit were : 1. Usury. 2. Failure to sue the principal, upon notice. 3. Giving time to the principal, without the consent of the surety.

The note, as we have seen, drew 10 per cent, interest. It was shown by a statute of Ohio, that -this rate was legal. It was proved, however, that the maker of the note actually paid, by agreement with the payee, 12 per cent. But usury, it was shown by the Ohio statute, did not vitiate the note, but might be applied as payment upon the principal sum. It was so applied in this case. See Clearwater v. Cloon, 2 Handy’s O. Reports. There is no such doctrine recognized in this State, as a part of the common law, that a surety by giving notice, either verbal or written, to the creditor to sue, can secure his release. It was not shown that any written notice was given by the' surety to the payee to sue, nor were the terms of any verbal notice even shown. But the notice, to be of any effect, should have been in writing. Ind. Dig.,p. 703; Craft v. Dodd, 15 Ind. 380; Colereck v. McCleas, 9 Ind. 235; Rome v. Buchtel, 13 Ind. 381; Greenleaf’s Overruled Cases, case “King v. Baldwin,” p. 211 of 3d ed. This is because the notice is-of any effect-, simply by virtue of our statute; and that gives effect only to a notice in writing. Leading Cases in Equity, Vol. 2, Part 2, top p. 378.

As to the giving of time, it must be by a new promise, founded upon a valid consideration, to operate to discharge the surety. Otherwise, he is not prejudiced. Kirby v. Studebaker, 15 Ind. 45. Giving time upon a promise to pay illegal interest, is not upon a valid consideration. Shaw v. Binkard, 10 Ind. 227. Giving time upon paying up interest already due, is not upon a valid consideration. Shook v. The State, 6 Ind. 113; Shook v. The Board, &c., id. 461; Dickerson v. The Board, &c. id. 128. In the case at bar, we are satisfied no interest was paid in advance. See McComb v. Kittridge, 14 O. Rep. 348.

S. Coulson, for the appellant. Scott and Gunn, for the appellee.

Per Curiam.. — The judgment is affirmed, with 1 per cent, damages and costs.