Keirn v. Andrews

59 Miss. 39

• Court: Mississippi Supreme Court
• Decided: October 15, 1881
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the court.

We adhere to the view announced in Brown v. Prophit, 53 Miss. 649, but the second plea in the case at bar does not distinctly aver that Durden, by his agreement with the agent of the holder of the note, had precluded himself from the right to pay the note at any time. The principle of the decision cited is, that the right of the creditor to get interest for a definite period is a sufficient consideration to uphold a promise to forbear, and to tie the hands of the creditor so as to discharge a surety not consenting to it. For all that the plea states the alleged contract for time amounted to no more than this: —if Durden should pay one hundred dollars annually he was not to be sued, but he might at any time have paid the money, or tendered it. His right to do this is not negatived by the plea, and if he had the right to pay at any time there was not a tying of the hands of the creditor, and the rights of the parties were not changed by the agreement.

The fifth plea, if intended to present the same defence as the second, is insufficient on the same ground as the other; and if it was designed to plead a discharge of the surety under Art. 1, p. 362, of the Code of 1857, it was defective in not bringing the case within it.

Affirmed.