Lilly v. Roberts

58 Ga. 363

• Court: Supreme Court of Georgia
• Decided: January 15, 1877
• Status: Published

Opinion

Bleckley, Judge.

The creditor having under levy enough of the personal property of the principal debtor to pay the debt, postponed the sale until the next sale-day, on the debtor’s bare promise to pay the debt, or a part of it, in a short time ; but, instead of complying with his promise, the debtor, before the next sale-day arrived, claimed the projierty as exempt, and thus prevented the sale. The right to exemption existed when the creditor acted, although it had not then been asserted. There was no stipulation that it should not be asserted. Under these facts, a surety upon the debt was not discharged. In 30 Ga., 112, the indulgence was granted to avoid a threatened defense. Here there was no such element. There was no bargain by which the creditor acquired any new right, or the debtor conceded any old one.

Judgment affirmed.