Mr. Justice Clark
delivered the opinion of the court November 13th, 1884.
The questions presented upon this record arise upon a scire facias, which, in form, is to revive judgment, continue lien, &e.; it has been treated, however, throughout the trial by both counsel and court as a scire facias to liquidate the damages arising from a breach of the condition in the bond, and to ascertain the balance, if any, due thereon ; the cause having been so tried we will consider it as if breaches had been formally assigned. A judgment on warrant of attorney without writ is not within the Statute of 8 and 9 William III, cap. 11, or of our own Statute of 14th June, 1836 ; execution in such cases may issue without scire facias; it issues, however, at the peril of the plaintiff, and the court may at the instance of the parties direct an issue on a scire facias, either before or after execution, as the case is presented: Skidmore v. Bradford, 4 Barr 296 : Reynolds v. Lowry, 6 Id. 465 ; Jones v. Dilworth. 13 P. F. S. 449; Cochlin v. Commonwealth, 11 W. N. C. 460.
The bond upon which the judgment was entered is dated 8th July, 1875 ; it is not absolute in form, it is conditional in its obligations. The amount of the bond, according to the import of the condition, is to be released on the delivery of three thousand five hundred barrels of crude petrolemn, in the pipe line, when called for, anytime within six months. Judgment was entered on the bond on the 8th day of May, 1876. A bond payable in property only becomes payable in money by a failure to deliver as stipulated. To pay in property is a privilege that may be waived, and when it is not claimed at the proper time it is waived: Chambers v. Harger, 6 Harris 15 ; Roberts v. Beatty, 2 P. & W. 63. The oil was to be delivered in the pipe line “ when called for,” at any time within six months ; it was the duty of the defendants upon demand to deliver the oil as they agreed ; by their default, their privilege to pay in property would be defeated, and the debt thereby made payable in money. But the duty to deliver is conditioned upon a demand, and therefore no debt was due, and there could be no default, consequently no liquidation of damages, until demand was made. The judgment might be revived, but it could not be liquidated until after a demand of the oil, followed by a neglect or refusal to deliver.
We think that in view of the nature of the obligation the court was clearly right in permitting the defendants to prove any demand made for the oil, pursuant to the provisions of [378]*378the contract, whether the call was made before or after the 8th March, 1876 ; the entry of the judgment adjudicated nothing as to the extent of the real debt, the judgment was for the penalty merely, and the real debt was only ascertainable from matters extraneous to it. If the bond had been drawn for a determinate amount, for a fixed debt, the entry of judgment upon it would have been an adjudication to that extent, but here the judgment adjudicated simply the right of the plaintiff to an indemnity to the amount of the penalty; the plaintiff took nothing by it excepting the additional security it afforded. The plaintiffs had the right to demand the oil at any time prior to the 8th January, 1876. They allege that they did demand it on the 23d December, 1875, and the jury has so found ; the real debt is therefore, in the first instance, to be determined by the price of oil at that date. With the weight of the evidence on this point we have nothing to do, that was for the jury; we cannot say as matter of law that there was no evidence from which, apart from the countervailing proof, the fact of a demand was not fairly inferred.
Daniel M. Shakley, the defendant, testifies that he was the surety for Spence in the obligation, and that he had no beneficial interest in the matters involved; the jury has so found, and the fact is assumed in the argument on both sides. An exemplication of the record of the judgment having been entered in Butler county, an attachment execution was there issued on the 12th February, 1877, under which were seized and levied the moneys of Daniel M. Shakley, on deposit in the Argyle Savings Bank, supposed to be $2,329, and 191 barrels of oil in the hands of the United Pipe Line. On the 29th March, 1877, an alias attachment issued, under which were seized and levied the moneys and effects of A. T. Spence, the principal debtor, in the hands of J. B. Hill. These several attachments formed the basis for the contract consummated in the office of Mr. Gilpin, at Kittanning, on the 2d April, 1877.
The defendant, who is an illiterate man, contended at the trial that his signature to this contract had been obtained by the artifice of the plaintiffs, who acted in collusion with Spence to defraud and deceive him. He testified that he did not read the papers himself, nor were they read to him ; that the contents were fraudulently concealed from him ; that Foster, who was a party in interest and represented Templeton, falsely explained their purport, and said that if Shakley would sign the agreement, give a check for the money on deposit in the Argyle Savings Bank for $2,829, and an order for 191 barrels of oil in the pipe line, that would release him on the [379]*379judgment, and that be signed the paper on the faith of this statement, and would not have signed if the contents had been correctly stated; that be had no knowledge whatever that any call had at any time been made for the oil, or that any attachment had been levied upon the debt owing by Hill to Spence, or that the agreement referred to operated as a release of that attachment. He further testified that the letter of 29th Juno, 1877, in seeming ratification of the agreement, was also obtained by fraud. In these several statements be was corroborated in the main by the testimony of A. T. Spence, who, among other things, states that the letter of 29th June, 1877, addressed to Templeton & Foster, was written by Foster, copied by Spence, and that Shakley’s signature thereto was obtained without informing him correctly as to its contents. The allegation that there was an effort on all bands to conceal from Shakleyall knowledge of the Hill attachment is somewhat strengthened by the alleged conduct of the parties in Mr. Gilpin’s office, and the form of the papers there prepared ; these papers were written, Shakely says, under the direction of Foster and Spence, without consultation with him, and it is certainly true that the stipulations concerning the release of the Hill attachment are in such general form as to add greatly to the force of the suggestion that the paper was an artful concealment of the fact. We are of opinion that the testimony on part of the defendant, on this subject, was such as justified a submission to the jury; it was sufficiently clear and precise to establish the fraud beyond doubt, if it was true, and its truth was for the jury. The testimony taken as a whole was contradictory and conflicting, but the jury must determine not only the credibility of the witnesses, but decide questions of fact upon conflicting evidence. The jurors have found the several agreements of 2d April, 1877, to have been obtained through the fraud and deceit of the plaintiffs, and we must accept their finding as an adjudication of that fact. These papers are therefore eliminated from the case ; as against the present defendant they can have no force or validity.
Assuming then that Shakley was the surety of Spence, and that under the finding of the jury the agreements of 2d April, 1877, are not binding upon him, we may consider their effect upon his admitted obligation as a surety.
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Mr. Justice Clark
delivered the opinion of the court November 13th, 1884.
The questions presented upon this record arise upon a scire facias, which, in form, is to revive judgment, continue lien, &e.; it has been treated, however, throughout the trial by both counsel and court as a scire facias to liquidate the damages arising from a breach of the condition in the bond, and to ascertain the balance, if any, due thereon ; the cause having been so tried we will consider it as if breaches had been formally assigned. A judgment on warrant of attorney without writ is not within the Statute of 8 and 9 William III, cap. 11, or of our own Statute of 14th June, 1836 ; execution in such cases may issue without scire facias; it issues, however, at the peril of the plaintiff, and the court may at the instance of the parties direct an issue on a scire facias, either before or after execution, as the case is presented: Skidmore v. Bradford, 4 Barr 296 : Reynolds v. Lowry, 6 Id. 465 ; Jones v. Dilworth. 13 P. F. S. 449; Cochlin v. Commonwealth, 11 W. N. C. 460.
The bond upon which the judgment was entered is dated 8th July, 1875 ; it is not absolute in form, it is conditional in its obligations. The amount of the bond, according to the import of the condition, is to be released on the delivery of three thousand five hundred barrels of crude petrolemn, in the pipe line, when called for, anytime within six months. Judgment was entered on the bond on the 8th day of May, 1876. A bond payable in property only becomes payable in money by a failure to deliver as stipulated. To pay in property is a privilege that may be waived, and when it is not claimed at the proper time it is waived: Chambers v. Harger, 6 Harris 15 ; Roberts v. Beatty, 2 P. & W. 63. The oil was to be delivered in the pipe line “ when called for,” at any time within six months ; it was the duty of the defendants upon demand to deliver the oil as they agreed ; by their default, their privilege to pay in property would be defeated, and the debt thereby made payable in money. But the duty to deliver is conditioned upon a demand, and therefore no debt was due, and there could be no default, consequently no liquidation of damages, until demand was made. The judgment might be revived, but it could not be liquidated until after a demand of the oil, followed by a neglect or refusal to deliver.
We think that in view of the nature of the obligation the court was clearly right in permitting the defendants to prove any demand made for the oil, pursuant to the provisions of [378]*378the contract, whether the call was made before or after the 8th March, 1876 ; the entry of the judgment adjudicated nothing as to the extent of the real debt, the judgment was for the penalty merely, and the real debt was only ascertainable from matters extraneous to it. If the bond had been drawn for a determinate amount, for a fixed debt, the entry of judgment upon it would have been an adjudication to that extent, but here the judgment adjudicated simply the right of the plaintiff to an indemnity to the amount of the penalty; the plaintiff took nothing by it excepting the additional security it afforded. The plaintiffs had the right to demand the oil at any time prior to the 8th January, 1876. They allege that they did demand it on the 23d December, 1875, and the jury has so found ; the real debt is therefore, in the first instance, to be determined by the price of oil at that date. With the weight of the evidence on this point we have nothing to do, that was for the jury; we cannot say as matter of law that there was no evidence from which, apart from the countervailing proof, the fact of a demand was not fairly inferred.
Daniel M. Shakley, the defendant, testifies that he was the surety for Spence in the obligation, and that he had no beneficial interest in the matters involved; the jury has so found, and the fact is assumed in the argument on both sides. An exemplication of the record of the judgment having been entered in Butler county, an attachment execution was there issued on the 12th February, 1877, under which were seized and levied the moneys of Daniel M. Shakley, on deposit in the Argyle Savings Bank, supposed to be $2,329, and 191 barrels of oil in the hands of the United Pipe Line. On the 29th March, 1877, an alias attachment issued, under which were seized and levied the moneys and effects of A. T. Spence, the principal debtor, in the hands of J. B. Hill. These several attachments formed the basis for the contract consummated in the office of Mr. Gilpin, at Kittanning, on the 2d April, 1877.
The defendant, who is an illiterate man, contended at the trial that his signature to this contract had been obtained by the artifice of the plaintiffs, who acted in collusion with Spence to defraud and deceive him. He testified that he did not read the papers himself, nor were they read to him ; that the contents were fraudulently concealed from him ; that Foster, who was a party in interest and represented Templeton, falsely explained their purport, and said that if Shakley would sign the agreement, give a check for the money on deposit in the Argyle Savings Bank for $2,829, and an order for 191 barrels of oil in the pipe line, that would release him on the [379]*379judgment, and that be signed the paper on the faith of this statement, and would not have signed if the contents had been correctly stated; that be had no knowledge whatever that any call had at any time been made for the oil, or that any attachment had been levied upon the debt owing by Hill to Spence, or that the agreement referred to operated as a release of that attachment. He further testified that the letter of 29th Juno, 1877, in seeming ratification of the agreement, was also obtained by fraud. In these several statements be was corroborated in the main by the testimony of A. T. Spence, who, among other things, states that the letter of 29th June, 1877, addressed to Templeton & Foster, was written by Foster, copied by Spence, and that Shakley’s signature thereto was obtained without informing him correctly as to its contents. The allegation that there was an effort on all bands to conceal from Shakleyall knowledge of the Hill attachment is somewhat strengthened by the alleged conduct of the parties in Mr. Gilpin’s office, and the form of the papers there prepared ; these papers were written, Shakely says, under the direction of Foster and Spence, without consultation with him, and it is certainly true that the stipulations concerning the release of the Hill attachment are in such general form as to add greatly to the force of the suggestion that the paper was an artful concealment of the fact. We are of opinion that the testimony on part of the defendant, on this subject, was such as justified a submission to the jury; it was sufficiently clear and precise to establish the fraud beyond doubt, if it was true, and its truth was for the jury. The testimony taken as a whole was contradictory and conflicting, but the jury must determine not only the credibility of the witnesses, but decide questions of fact upon conflicting evidence. The jurors have found the several agreements of 2d April, 1877, to have been obtained through the fraud and deceit of the plaintiffs, and we must accept their finding as an adjudication of that fact. These papers are therefore eliminated from the case ; as against the present defendant they can have no force or validity.
Assuming then that Shakley was the surety of Spence, and that under the finding of the jury the agreements of 2d April, 1877, are not binding upon him, we may consider their effect upon his admitted obligation as a surety. Inoperative as they are against Shaldey, they are certainly binding upon those who with a full understanding entered into them. The plaintiffs must accept tire consequences which legitimately result from their own unfairness. By the express terms of this agreement it was provided, that when the order upon the [380]*380Arscyle Savings Bank for $2,329 and the order upon the United Pipe Line for 191 barrels of oil should be honored and paid, and when all the costs accrued upon the attachments were paid, then the plaintiffs would release from “levy and attachment all other goods, chattels, moneys and property of said second parties which have been attached, levied on or seized upon attachment executions issued on said judgment, and that when said orders are paid, the defendants in said judgment shall be credited with the same as of 1,000 barrels of oil.”
The amount received upon the order to the Argyle Savings 'Bank was but $2,041.42, and the oil received upon the order to the pipe line only 181 barrels; there was an alleged discrepancy or deficit of $635 between the amount of the orders and the amount realized upon them; but this deficit, if any existed, was, as the jury has found, otherwise provided for; the costs of the attachment were paid, all the moneys and effects of Shakley seized under the attachment were turned in to the plaintiffs in payment of Spence’s debt, whilst the moneys and effects of Spence himself were released, and were subsequently received by him. The amount thus diverted from the proper channel and absorbed by Spence was $1,500, a sum sufficient, after deducting payments actually made and applied, to satisfy the judgment. It is a well recognized rule of equity that where a creditor has the means of compelling payment from the principal debtor, and by his own act gives it up, he thereby discharges the surety : Neff’s Appeal, 9 W. & S. 36. This rule is but the corollary of another, that a surety on payment of the debt of his principal is entitled to be substituted to all the liens and other securities which the creditor holds; if, therefore, substitution be rendered fruitless by any act of the creditor, a release pro tanto, or for the whole, as the case may be, necessarily results; and it is not material whether the creditor knows, or does not know, at the time of the release of the relation of principal and surety between the debtors ; if he be ignorant of the relation he should act accordingly: Holt v. Bodey, 6 Harris 207.
The amount of the debt released was a material fact for, determination of the jury. We discover no error in the methods pursued at the trial for the ascertainment of the sum due to Spence from Hill. The original contract between them, the testimony of the parties to that contract, the record of the proceedings on the attachment, the answer of the garnishee, forming part of that record, were all, we think, proper and legitimate proof. The objection that the garnishee’s answer, contained in the record of No. 240, March Term, [381]*3811877, instead of No. 138, June Term, 1877 is under the circumstances unavailing, as the record of the judgment and of the several attachment executions were but the record of a single case; if the papers were confused in their arrangement by the officer they might be read in their proper place.
We have carefully examined this record, and we find no errors therein which move us to disturb the verdict.
The judgment is therefore affirmed.