#### Gardner vs. Van Norstrand.

If a creditor does any act injurious to a surety, or inconsistent with his rights, or omits to do any act when requested by the surety, which his duty requires him to do, and the omission proves injurious to the surety, in all such cases the surety is discharged.

A surety may become a creditor of the estate of his principal, previously deceased, by paying the debt after the same becomes due, without waiting to be sued therefor.

An agreement between a creditor and the administrator of the estate of the principal debtor, to delay bringing an action for the recovery of the debt, when the time thus granted does not extend beyond the period within which the creditor is precluded by the statute from bringing suit against such administrator, is not injurious to the surety, or inconsistent with his rights.

APPEAL from tbe Circuit Court for *Jefferson*County.

This was an action by tbe assignee of a promissory note against one of tbe makers, wbo signed tbe same as surety. The defense set up in tbe' answer will appear from tbe opinion of tbe court. Verdict and judgment for tbe defendant.

*Enos &*Hall, for tbe appellant.

1. A contract to give time to tbe respondent would not discharge him. 2. Tbe agreements set up in tbe answer were void; tbe first, for want of a consideration — interest then due not being a sufficient consideration *(Jenkins vs.*Glarh, 7 Ohio, 72; *The Farmers' Fanlc of Canton vs. Reynolds,*13 id., 84; *McCann vs. Dennett,*13 N. H., 528; *Reynolds vs. Ward,*5 Wend., 501); tbe second, because usurious and not binding upon tbe creditor, even though tbe usu*544rious consideration was paid. Gren. Laws of 1859. cb. 160, sec. 4; *Vilas vs. Jones,*1 Corns., 286; *Richmond vs. Stand-clift,*14 Yt., 258 ; *Schroeppel vs. Shaw,*8 Coins., 446. 8. Tbe agreement gave no time to tbe administratrix which tbe law bad not already given. R. S. 1849, cb. 70, secs. 1, 5, 6, 15, 31, 60.

April 10.

*Weymouth & Thorn,*for tbe respondent,

contended that the established doctrine of tbe law is, that the surety is discharged when tbe obligee does any act which varies tbe terms of tbe original contract. *Bangs vs. Strong,*7 Hill, 250; *King vs. Baldwin,*2 Johns. Cb. R, 554; *Same Case,*17 id., 384; *The Banlc of Steubenville vs. Garroll,*5 Ham., 207; *Jos-lyn vs. Smith,*13 Yt., 353; *Bower vs. Tiermann,*8 Denio, 378; *Fellows vs. Prentiss,*id., 512; *Huffmann vs. Hurlburt,*13 Wend., 375; *Qreeley vs. Dow,*2 Met., 176.

*By the Court,*

Gole, J.

There can be no doubt about tbe correctness of tbe rule of law, that if a creditor does any act injurious to tbe surety, or inconsistent with bis rights, or omits to do any act when requested by tbe surety, which bis duty enjoins him to do, and tbe omission proves injurious to tbe surety, in all such cases tbe surety will be discharged. This principle is elementary, and is not controverted by counsel on either side. But tbe whole contest grows out of tbe application of that general principle to tbe facts disclosed in tbe answer and proven on.tbe trial. Tbe answer states, in substance, that tbe respondent signed tbe note as surety for tbe maker, Brown; that Brown died leaving a large amount of property; that bis widow administered upon tbe estate; that after tbe note became due, tbe respondent saw tbe appellant, and urged him to press tbe payment of tbe note, and if it was not paid, to *sue him,*as be wished, if be bad tbe note to pay, to take steps to have tbe estate so administered as to be most to bis benefit and that of tbe other creditors; that this request was frequently made; that tbe note was placed in tbe bands of an attorney for collection ; that before tbe suit was actually commenced, tbe appellant entered into an agreement with tbe administratrix, without bis knowledge, by which be agreed not to sue tbe *545note, but to delay suit for three months or more, upon the interest being paid, and some costs; that this interest costs were paid; that at the expiration of this time for which suit was to be delayed, the time for bringing suit was again extended eight days, for the consideration of three dollars; that owing to the want of diligence and capacity on the part of the administratrix, the estate of the principal has been wasted, and is insolvent; and that if the appellant had proceeded to collect the note when it became due, instead of agreeing to delay suit, the respondent, upon paying the note, would have become interested in the settlement of the estate, and could have expedited its settlement so as to have secured himself therefrom.

Conceding all these allegations to be strictly true, what defense do they offer to this suit ? It is very manifest that the respondent might at any time have become a creditor of the estate of Brown by paying the note. It was not necessary that he should be sued on the note, in order to render him a creditor. He would have been in no better position, and no more able to control the settlement of the estate, after judgment against him than before. Besides, the agreement was, as we understand the answer, not to sue *him,*the respondent. How he could have been injured by such an arrangement we fail to perceive. But if this is not the right construction to be placed upon the allegations of the answer, then clearly the appellant, by the agreement, did not disable himself from sueing when he would otherwise have been entitled to sue. For by the statute in force, no suit could be instituted against the estate of Brown within a year (chapter 70, sections 31 and 60, E. S. 1849), unless the claim had been presented to commissioners, or the probate court, and had been disallowed. So that the agreement not to bring suit against the administratrix for the time mentioned — if that was really the agreement — was granting no more indulgence than the law gave her. How then can it be said that the appellant varied the contract, or suspended any right which he otherwise might have enforced, by the new agreement ? The statute suspended the action, and he only agreed to do that which he was obliged by law to do. *546ln forbearing to sue tbe administratrix for four months or more, be did no act injurious to tbe respondent, or incon-sigtent witb bis rights, for tbe reason that tbe statute enjoined upon him this very forbearance. And bis omitting to do what be could not by law do, ought not to discharge tbe surety.

We therefore think tbe instruction of tbe court, to tbe effect that if tbe jury found either or both tbe agreements to delay suit or demand of payment of tbe note, for a consideration, were made as stated in tbe answer, tbe surety was thereby discharged, was erroneous, and calculated to prejudice tbe appellant.

Judgment reversed, and a new trial ordered.