Woolfolk v. I. C. Plant & Son

46 Ga. 422

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinion

Montgomery, Judge.

If ordinarily a surety is entitled, when sued on the debt upon which he is surety, to set-off usury paid by his principal to the creditor on contracts other than the one sued on, (as to which see Whitehead vs. Peck, 1 Kelly, 140; Mordecai vs. Stewart, 37 Georgia, 364,) he certainly is not entitled to do so after his principal has been adjudged a bankrupt. The fourteenth section of the Bankrupt Act provides that “all debts due the bankrupt * * * shall, in virtue of the adjucation of bankruptcy and the appointment of his assignee, be at once vested in such assignee.”

2. Indulgence to the principal, to discharge the surety, must be for a definite period and for a valuable consideration : Parnell vs. Price, 3 Rich., 121; Washington vs. Gary, 7 S. & Marshall, 522.

3. We do not see how the dismissal of the possessory warrant increased the risk of the accommodation indorser in this case. It had failed to perform its office — the cotton was not to be found ; nor did it appear that it was “ in the possession, power, custody or control of the defendant, or any agent or friend of his, or any one acting for or entrusted with the same for him.” What, then, was to be done? The defendant could not be imprisoned — the cotton was not to be found. The warrant had expended its force and could be of no further service. Its dismissal did no damage. Upon all the points taken we affirm the judgment.

Judgment affirmed.