The Douglas independent. [volume] (Roseburg, Or.) 187?-1885, 1879-10-25

not an ordinary case. Inc tsesehudnt
is my special political friend. he
was with me in the dark hours when1
was struggling TO get to the Senate;
and cannot forget that. "Stand by
your friends,n is a maxim in poiitlcs
too well settled to be disregarded
lightly. in fact we might say tnat u
is part Of the 'snnwritten law. OF the
state. There is no statute on the sub
iect and we are specially authorized by
the Code to declare the unwritten
law. to-wit SO ia. Unwritten law is
the law not promulgated and recorded,
but which is nevertheless observed
and administered in the courts of the
state The lamented Andrew Jack
SON held to principle nearly like this,
and President Grant invariably stood
by his friends. Congress and the leg
islatures frequently relieve sureties
from their bonds. This saiutary prin-
cipal is thus very highly endorsed, and
Is of such i'm portance as TO take high I
rank among legal axioms. Indeed 1t
may we'll be doubted whether this
rule is not more binding
than even q decree of the "Cli-ku."
When this maxim intervenes, no "op.
tionD can be allowed to Wah-ker, and |
none even to my associate justices to |
dissent, because here the principle OF !
comfy applies with its fullest force. |
And we now declare the concurring |
opinion of the Chief Justice. in Estes
VS.. Mott on the subject of comfy to be
adopted as the law of this court. This
too 10 suit in equity and it Is contra
ry to enlarged principles OF equity and
to common justice to believe that
Tieghi would have put up IN that way.
The consequences will be SO rulnous
that such hard law cannot be enforc-
ed. Though the law in the case is
perfectly plain, equity must regard the
consequences and will not enforce the
| law in such q case. Such L am ln-
| formed by Judge b. Ramsey Sniffte
| is the rule he acts on in his court on
nroDer ocensi0ns. and he controls
me, as 1t were. We are, therefore, con-
strained to give the case to Tieghl.
Still we are aware that such an opin-
ion as this may not be filed. 1t would
| be fatal to any reelection. People
might say in a spirit of wrong-doing
and for political capital that 1t was
| highway robbery of the eclectic species.
Still it is necessary that some opinion
be filed. 1t is true the constitutional
provision requiring opinions to be
filed does not apply to this court, as we
have already held but policy demands
that we file an opinion and make it as
plausible as possible. Ah | have
it | remember when was at Prince
ton college / mastered the rule of logic
known as petitio prtaceps. 1t is first
class rule in such cases as this, and we
hold it also to be part of the '.un-
written law" of this Stale. l will
therefore ''beg the question" | will
assume the real point i'll the case to be
I in favor of defendant, and assert with
out argument or reason or authority
that plaintiffs option expired forever
at the end of two years from the date
! of the original note (Aug. 18th, 1874,
and, with that false premise, | will
reason upon the consequences flowing
from that position as discharging the
surety. It is true the claim of dis
charge by the surety, even with that
J premise, is quite doubtful, but | can
make it plausible and cite large array
of authorities. In addition to that,
can make the case very long and dis
cuss other unimportant questions with
, profound gravity, so as to hide the
real Issues from the casual reader. III
! q word, I might say | will play the
cutie fish aud emit dirty water TO hide
in its discoloration. scarcely anybody
! besides the attorneys in the case will
examine so long an opinion carefully,
) and if they make an outcry the people
by reason of their law-abiding educa-
tion, will presume in favor of the
Supreme Court and think the attOr-
neys are only angry because they lost
their case. Besides that, the attorneys
will be afraid to incur displeasure
by attacking the decision in the press.
Still some attorney might have the
courage to explain this matter to the
people, and if so he will probably be
prepared to brave our anger aud fight
, us on all points. We are compelled,
however, to risk that, and trust to sly
threats OF disbarring him for presum-
, ing to call into question the righteous
ness of our decis on.
Therefore, on the question of sop
, tion,o we will assume that no option
: existed after Aug. 10Th, 1876, thu,
} begging the whole question, and tine
} opinion which we tile shall only con
! tain the following on that subject:
+ after the note became payable BY
the lapse of two years that option wai
I gone. *s* On the 18th of October, 1876
] the several parties entered into new
: contract whereby the time for the pay
2 ment of the debt was extended TO
| one year from that date in case the in
terest should be paid every month, bu
/ making the whole debt absolutely due
g upon the failure of Coal Schmit to pay
t the interest promptly at the end o
: each month. BY this contract, it wa'
: no longer optional with Wah-ker t
e consider the debt rs due or not du'
{ upon the failure to pay the interes
4 punctually. That option given him by
) the first contract, was taken away ant
a default in the payment of a months
+ interest rendered the entire debt due
t at once. 1t became due by the terms
+ of the contract and independent OF the
, will of the parties
BY thus silently and contemptu-
/ ously dIsregarding the real question
in the case, and assuming that there
, could be no necessity for argument or
the ''option'' question, we put a bolt
/ face on the matter and that is very
! strong argument itself with Il e un
, thinking. 30, too, the same atyle o.
reasoning applies to the question
whether defendant is guarantor
''Guaranty is contract by which one
: person is bound to another for the due
, fultillment of a promise or engagement
of third partyn q Pars. Cont. 81 "Nc
SpGClhl IOTln VI NOIuS are ueCesSdfy "a
constitute guaranty" q Pars. Cont
81 Now it is plain that T. entered
. into an undertaking that G. would pay
the debt he in effect says, I under
take (which means, hold myself
bound) that c. shall fulfill his said con
tract. Suppose he had said, 81 bind
myself by this agreement that G. will
pay the note when DUE" could there
be any doubt that it was guaranty ?
The language used is practically the
same. Hence we must "slurn over
this point also and only comment
slightly on it as follows, viz:
1--WE do not consider that Tieghl in
CURED any personal liability to pay
C's debt by this clause in the agree
ment. There is no promise by him tn
pay anything. Guaranty never is
1t is only promise that another will
pay--Rep.) and the parties themselves
specify in the same sentence and as q
part of it what should be the con-
sequence of non-payment by CO.. to-
! wit that the whole debt become due
as provided in the note. .'This clause
in the agreement is simply that in con-
sideration of the extension of the time
for payment G. and T. promised not
that they [of course not, for it would
not then be a guaranty but direct in
debtedness-Rep. but that G. would
pay the debt. This certainly did not
create any personal obligation on the
part of I. to pay anything. If it Was
his intention to become personally
liable for G. g debt doubtless Ii wotlid