Sizer v. Heacock

23 Wend. 80

• Court: New York Supreme Court
• Decided: January 15, 1840
• Status: Published

Opinion

The acceptance by the holder of a note, of a bond and warrant of attorney to confess judgment from the maker and first endorser will not discharge the second endorser, although time for payment be given to the maker and first endorser, if the time so given be not greater than would have elapsed, had a suit been brought against the parties, and prosecuted with due diligence.

Upon this part of the case, in deciding the motion for a new trial, Cowen J. in delivering the opinion of the court holds the following language : “ As to the question of delay, upon the judgment confessed by the other parties to this note, for whom the defendant was surety, we think, admitting the plaintiff had tied up his hands from proceeding against them, by the writing which he gave, that this did not work a discharge, inasmuch as the delay stipulated, was *evidently no more than would seem necessa- [ *82 ] rily to have followed, from the course of the circuits, had a suit been commenced and followed up with the greatest degree of professional diligence. Such seems to be the principle of Stevenson v. Roche, 9 Barn. & Cres. 477.”