[Present, Chancellors Rutegíige, James and Ttiojrrsosr.J

#### James Kennedy, *vs.*W. H. Gibbes, Administrator, with the Will Annexed, of M'C. Campbell.

Complainant seeking to be relieved from abend, as surety, on account of an alleged extension of credit to the principal, by a new agreement, is not entitled to the relief sought; because he did not prove that he was a mere surety in the bond, in which he was bound jointly and severally, with’ the other obligors; and because *he*did not prove that the person ag'reeingto give the extension of credit was the attorney of tire obligee and authorized to act in the premises.

THE bill was filed in this case, to get rid of complainants liability on a bond, in which he was bound, jointly and severally with Robert Tate and others-, to the late M’C. Campbell, and on which judgment had been obtained at law. • .

The grounds were, 1st. That the complainant was merely security in the bond, though that was not expressed on its face. And 2d. That the late Mr.- Campbell had by his attorney Mr. Jackson, entered into new agreements with Robert Tate, the principal in the bond, and extended the time of payment to him, which discharged the co-obligor. ■

The bill set forth that Robert Tate and William Tate being indebted to the late M’Cartan Campbell, made and executed their bond, dated day of June, 1786, in the penal sum of 9004 sterling, conditioned for the payment of 450/, with interest on or before the day of A. D. 1791, to the said M’Cartan Campbell, his- executors, administrators and assigns, in which said bond, this com*381plainant, together with Gen. Isaac Huger and Ephraim Mitchell, were bound as sureties. That the bond remaining unpaid after the time fixed for the payment thereof, M’Cartan Campbell agreed with the said Robert Tate to accept in satisfaction thereof, lands and negroes, at a valuation, which agreement was afterwards, to wit: 15th April, 1793, reduced into writing by James Tate, the agent of the said Robert Tate, and William Jackson, the agent of M’Cartan Campbell; by which the former engages' that good and sufficient titles to a .tract of land of about 300 acres, on Seneka River, and a number of ne-groes, to be appraised by indifferent persons, should bepie-livered by the said. Robert Tate or his agent, before the 10th of July, 1793, in payment of the said debt; and Wm. Jackson agreed on behalf of Mr. Campbell, to accept the sajd land and negroes so appraised., and to deliver up the said bond, a copy, of which agreement is filed, and marked A. The complainant further shews that in pursuance of said agreement, James Tate agent for Robert Tate, did on the 8th July, 1793, tender in satisfaction of the said debt, to Wm. Jackson, agent of Campbell, four negro Slaves, and also good titles for the land aforesaid. That Wm. Jackson agent as aforesaid, was satisfied with the compliance with the terms of the said agreement by Robert Tate, but declared that he could not then fulfil the said agreement on the part of Campbell, by delivering up the bond, because it was in the hands of Mr. Philip Gadsden, from whom it could not be procured in time.- And he produced a letter from Mr. Campbell, making an apo-. logy for such non-compliance, and promised to procure and deliver the said bond for the purpose of performing the agreement. The complainant further shews that Campbell and his agents afterwards neglected to comply with or enforce the agreement, or to take any steps against Robert Tate for the recovery of the debt. That some time afterwards this complainant received a letter from. Mr. Jacob Drayton, requesting payment of the said bond, and he desired the writ might be sent to Gen. Pinckney,. *382but the business was suffered to sleep from 1793, till 1796, when a suit was commenced by Mr. Isaac Motte Dart, on the bond in the name of George Jones and Sarah his wife (late Sarah Campbell) executrix, and Philip Gadsden and Edward Rutledge, executors of M’Cartan Campbell against Robert Tate, who not being found, another action was brought to March term, 1796, against Isaac Huger and this complainant, the sureties to the said bond. That the copy writ was sent to Gen. Pinckney, who appeared thereon, without this complainant then knowing that such a suit was instituted. That Gen. Pinckney soon after departed on his embassy to Prance; and a judgment .was obtained against him by default, and entered up on the 27th March, 1797, without his knowledge, so that he could not avail himself of the defence founded on the above circumstances. That sometime afterwards this complainant discovered the said judgment, and applied to the judges of the constitutional court for a new trial on the ground of surprise in the obtaining said judgment. That, they after full argument, granted anew trial, on condition that it should come on at the then ensuing court, which commenced its sitting on the Monday following. That some of the witnesses, to prove the foregoing *facts,*residing in Pendleton district, and others in Georgia, it was impossible to procure their attendance; by which this complainant was deprived of their testimony, and his defence founded thereon, and the judgment remained in force against him, and has- since been revived by *scire fa-cias m*the year 1803, by William Hasell Gibbes, administrator of Campbell; to which *.scirefacias*this complainant could not set up any defence available ' at law. The complainant further shews that Robert- late was at the time of giving the said bond, and long afterwards, possessed of considerable property; and the complainant is persuaded, that if instead of extending the time of payment, and entering into an agreement, and neglecting to enforce the execution thereof, the said Campbell had pursued regular steps for the recovery of the debt from Robert Tate, or af~ *383ter entering into tbe agreement had complied with it oh his part, that the debt could have been recovered from the said Robert Tate ; or that if he,- the complainant, had not been lulled into security by the agreement aforesaid made, he has no doubt he could have secured himself by pursuing proper measures against the said Robert Tate, which resource he no longer has, the said Robert Tate having died insolvent. He therefore prays this honorable court to take his case into consideration, and that the said William Hasell Gibbes may answer, &c„ and that he may be restrained from any further proceedings against this complainant at law upon the said suit, &c. and that he may have a writ of subpoena, &c. and that in the meantime your honors would grant á writ of injunction to be directed to the said William Hazell Gibbes, his agents and attorneys, and also to the sheriff of Charleston District, enjoining them from all further proceedings against this complainant upon the said suit so commenced as aforesaid, until the answer and further orders of your honors in this honorable court may be had in the premises, &c. j and he will pray, &c.

*381MAY, 1806.

*383The defendant admits the bond as in bill specified, and that the several judgments referred to in bill were obtained at the periods therein mentioned. He says that he knows nothing of any such agreement as is alluded to in bill, and made an exhibit of, having never heard of such an agreement until the filing of complainant’s bill; nor of the tender therein said to have been made, or of any ap-praisement of property tendered; nor doth he know that James Tate and Wm. Jackson, were severally the general agents of Robert Tate and M’Cartán Campbell, or that any expression of satisfaction was manifested by the said Wm. Jackson with Tate’s compliance with the said alleged agreement; or that the letter in the bill mentioned was urged as a reason why the said Jackson did not perform the agreement, or that the said letter was ever written or produced. This defendant being ignorant of the conduct of *384Campbell or his agent respecting the said agreement and bond, can neither admit nor deny the negligencies attribut-t0 them, or the consequences resulting therefrom, but he has never deemed a security to a bond exonerated by indulgence shewn to the. principal, but hath been advised that any extension of the time of payment might be granted by an obligee to a principal obligor, without at all impairing his rights against the security. This defendant does not admit the institution of a suit against the complainant on the bond without his having notice of it; for Mr. I. M. Dart, the attorney, who sued the said bond, hath deposed that to the best of his knowledge and belief, he applied at the time, either by letter or verbally, to be informed who would enter an appearance to the writ, and the complainant directed him to Gen. Pinckney, who accordingly on the 9th March, 1796, appeared for the complainant upon the back of the original writ, which is how of record.— This defendant submits that as Gen. Pinckney did not. quit Carolina until the autumn of the year 1796, the complainant had sufficient time to have given any instructions he might have thought necessary to his attorney, This defendant admits the new trial as stated in the bill, and that the court commenced its sitting on the day alleged, and also that the complainant did declare upon oath, at the calling of the cause that he could not procure the attendance of his witnesses who resided in Pendleton district and in Georgia; but the defendant does not admit complainant’s inability to obtain the said testimony — on the contrary, the court determined that due diligence had not been used to procure the presence of the witnesses, and on that account overruled a motion which was made by the Complainant’s counsel for a continuance of the cause upon the docket; and this defendant says, that the complainant' having appealed from the decision of the court to the constitutional court, received a confirmation of the previous decision. This defendant further sets forth, that it is extraordinary that the complainant should delay applying to this honorable court until this time, as it is undeniable tha* *385,lie must have been as conusant of his rights when he first discovered the judgment against him as he is at this day, and therefore he should in prudence instantly have applied for relief, instead of lingering in a court of law during the long interval between his discovery of the judgment and the present time, and waiting until a judgment had been obtained upon a scire facias, and an execution issued thereon against his property. This defendant is surprised at the complainant’s application, to be discharged from the said bond, as having frequently spoken with the complainant about the said debt, he (the complainant) never hinted in the remotest manner his intention to dispute the payment; on the contrary, when the judgment upon the scire facias was entered up, which was on the 18th July, 1803, the defendant was requested by the complainant to lend him the said bond in order to obtain a judgment against Robert Tate, in a suit which he had instituted against Tate in the district where he resided ; which this defendant complied with, as appears by complainant’s receipt to him for the bond (marked B.1) upon which, in the hand writing of the defendant, is endorsed the following memo-landum: “ Promised him, after Mr. Drayton had obtained judgment on sci. fa. at April term, 1803, I would wait for the debt till after October circuit;” which memorandum was made by this defendant, on or about the day when the said receipt was given, at which time no expression passed the lips of complainant in this defendant’s presence, by which the latter could suppose the former considered himself released from the payment: so far from it that the complainant then entreated as a favor, that forbearance, which by the foregoing memorandum was granted. And this defendant further says that he is ignorant of all the other matters and things in the complainant’s bill contained, and requires, the.complainant to prove the same if he can ; and denying all combination, &c. prays to be dismissed with costs and charges, ike.

The cause came to a hearing, and the following facts were proved.:

*386For tbe complainant, tbe agreement between Mr. Jack-5 son, alleging himself to be the attorney of M’ C¿ Camp-ag sta6ec¿ jp *i\le*pjll^ and made an exhibit, was' pro» duced.

Mr. John Burton proved that he was a subscribing wit-' ness'to the deed or *agreement;*and Tate afterwards made a tender of property in satisfaction of the bond due to Mr, Campbell* There was no' incumbrance' on the property»1 Witness understood that Jackson was the attorney of Campbell. It was generally believed to be so.

Samuel Tate proved that he wás present when the negroes were tendered by James Tate to Jackson, in payment of the debt. He understood that Jackson was Campbell’s attorney — he was generally believed to be so — and James Tate was also known and reputed to be the attorney of Robert Tate.-

(Mr. Drayton objected to the parol evidence of the power of attorney.)

For the defendant, Mr. Gadsden ’ proved that Mr, Campbell’s wife commonly wrote all his letterá, arid trans-* acted business' for her husband.

Mr. Ford for complainant.- He stated the law on the subj ect,

and cited the cases of Nesbit vs. Smith, and Rees vs. Beeringtori. He contended that the agreement was sufficiently proved, and shewed that the obligee in the bond had entered into a new agreement with the principal obli-gor, and extended the time of payment, and agreed to accept a new mode of payment, which discharged the other obligors. • That though there is no positive proof that complainant was merely surety in the bonds, yet there were strong presumptions of it. He was not called upon for payment for many years, though- much more accessible than Tate *;*and all the obligee’s transactions and arrangements'about the payment of *the debt,*were with Tate. — ■ And though no positive proof that Mr. Jackson was Mr. Campbell’s attorney, his acts, his connection with Mr, Cariipbell, and general repute went a great way to establish it. It is not presumable he would have entered into *387such an agreement without he had authority. Mr. Campbell was known to be a sickly man, almost confined to his house 5 and Mr. Jackson was his known connexion and friend.

The complainant could not get at the original power or other *papers;*they were *res inter .alios acta.*The laphes of the obligee had been very injurious to the complainant, and lost him the opportunity of securing himself.

Mr. Drayton for the defendant,

insisted that complain-, ant had not made out his case. He had not proved that he was a surety; then all the cases on that subject were inapplicable : and there was no evidence that Mr. Jackson had any authority to act for Mr. Campbell, and the court will not presume it.

The complainant also slumbered over his rights, if he had any, and should have availed himself of his defence at law. He cited Ambl. 436. 1 Atk. *490, 3 Aik,*646. — ^ i Vesey, 64.

Chancellor James

afterwards delivered the decree of the court:

The object of this bill was to obtain relief against a judgment obtained on a bond entered into by Robert Tate, William Tate, General Isaac Huger, Ephraim Mitchell and James Kennedy, payable to M’Cartan Campbell. The bill sets forth, that the said James Kennedy, was a surety for the said Robert Tate, and not a principal in the bond. It further states, that after the time fixed for the payment of the debt incurred, and expressed in the bond, the same being then unpaid, M’Cartan Campbell, the Obligee, contracted and agreed with the said Robert Tate, to accept and receive in satisfaction therefor, lands and negroes at a *valuation;*which agreement, it is stated, was reduced to writing, between James Tate, on behalf of the said Robert Tate, and William Jackson, as agent and acting attorney for M’Cartan Campbell. It is further stated that M’Cartan Campbell and his representatives suffered several years to elapse before he or they made *388use of any measures to compel payment from Robert Tate. That he remained solvent a sufficient length of time aftex the bond became due, to have enforced the payment there** of from him. It is contended by the counsel for the complainant, that an extension of the time of payment, by the obligee of a bond, beyond that stipulated between the parties, at the time of its being entered into, without the consent and approbation of the sureties, will be considered as such laches as will discharge them therefrom. It is further contended, that the supposed agreement, entered intQ between William Jackson and James Tate, so far altered the nature of the original transaction, as to exonerate the sureties. The doctrine on ■which the, complainant’s counsel relied, having been adopted in some recent adjudication in the Court of Chancery in England, and recognized by a late decision of the Court of Equity, in this state, must now be considered as established; and of course would operate on this case, provided the testimony would admit of its being comprehended within the same principles. But the reverse is the case. The complainant introduced no evidence whatever, to prove he was a surety, and not a co-obligor; nor that William Jackson, the supposed agent of M’Cartan Campbell had any authority to act as such; nor was there any person whomsoever to prove that the extension of time given by M’Cartan Campbell to the obligors of the said bond, was contrary to the inclination and desire of the complainant.

It is therefore considered by the court, that the present case does not come within the description of cases relied on, and referred to ; and that the complainant is not entitled to the relief he claims in his bill. Wherefore it is ordered and decreed, that the same be dismissed with 'fSO?iSo