Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-04-30
COURT DECISIONS.
il!rtsS;ss .l.::;ztssl ~;
Notes of Cases Recently Decided,
Which are of Interest to
Our People.
DlGESTED BY W. B. MARTIN.
Exclusively for virsinian-Pilot.)
FIRST NATL. BANK OF CUMBER-
LAND V. PARSONS.

LANb v. 1AlNSOANc.
Supreme Court OF Appeals, West Va.
IL A CREDITOR SURRENDER
LIEN HE HAS UPON THE PROP
ERTY OF THE PRINCIPAL DEBT
OR, THE SURETY IS RELIEVED
FROM THE DEBT TO THE EN-
TENT or THE VALUE OF THE
PROPERTY BUT II THE SURE
Try IS NOT INJURED BY SUCH
SURRENDER HE IS NOT DIS
CHARGED FROM THE DEBT.
MERE INDULGENCE TO DEBTOR,
WITHOUT a BINDING CONTRACT
BASED ON A VALUABLE CON
SHERATON, WILL NOT DIS
CHARGE SURETY.
There were a number of questions In
this case of no general interest. AS 10
whether the action OF the creditor in a
former suit had released the surety,
the court says:
1t is said that the former opinion in
this case decided that the piaintiiLs, by
their consent, released the personal de-
cree against Barritt and thereby re-
leased the lien of the personal decree
on his land. But it is useless To dis
cuss that further. That opinion clearly
left onen whether that personal decree
operated on any land; whether the land
was of any value: whether 1t would
have discharged the debts pro tantS or
in toto.
Suppose however. we say that the ac
ton of the plaintiffs in that decree is
such as constitutes IL surrender of
lien, IL there wits efie,-el.to l-iNc further
Indulgence to the principal debtor, w.
A. Barritt Jr.; that will not discharge
he Fnr fntl tn mn
then see whether il entailed injury on
Parsons. If j5ai1itt had no land to
which the nersoual decree could at
tach or If, though vested with Il title,
II was colorabic only,-a mere shadow.
constituting no substantial estate from
which payment could he reasonably cX
pectcd.-thc surrender of this decree
would not discharge Parsons. The
question is: Did the surety really thus
suffer Il loss? ~ surety is released
when the creditor parts With II lien for
the payments OF the principals debt.
The release or surrender of the lien or
security will not, however, discharge
the surety absolutely from all liability.
but only TO the extent of tho loss which
his action viii cause the creditor" 1t
will release gro tunto or i'll toto, ac-
cording IS the value of the property
released was equal To or less than the
property released.
Without detailing evidence, 7 can say
that. when this decree was set aside
the two tracts OF land to which Barritt
had u paper title. and no possession,
were not owned by him. Ills title was
an empty shell.
The burden is on the surety who has
voluntarily assumed obligation, and
asks that an honGst debt shall be lost
TO its owner, to show that the creditor
Surrendered something that would have
awaited 10 save him from loss. But il
tl,n ltt.r. no, Ntf s-i1
enough is shown 10 show that no lien
WAS released
Having discussed the case as respects
the setting aside of the personal de-
cree, next advert TO the question, does
the consent of the creditors not to ask
decree in the cases at that term Of
the court release the surety, Parsons?
This was. clearly. not decided in our
former decision. This comes under the
head OF Indulgence to the principal. 1t
Is hardly indulgence. 1t fixed no new
day of payment, and this is necessary
to release surely. 1t is not the case
of new contract or novation Of the
debt, so IS To discharge the surety alb
solutely; but. il 1t discharges, it must
be because IL is mere indefinite indul-
gence. No consideration for this indul-
gcnce appears. and therefore, unless the
fact ft-i-.-ar-eansAnt Of record
changes it. the want of consideration
prevents 1t from operating To tie the
hands OF the creditor, and therefore
does not release the surety. Mere len
iency mere indulgence, extended often
and often by creditor to debtor, does,
not discharge n surety. The most we
can say is that such consent OF record
esippped the creditors from asking a
decree that term OF court. do not
know that it did that. as the parties
might withdraw their consent with the
courts leave; and the court seeing thai
II WAS based on no cOnSidera ton if
the other party were present or on rule.
would set il aside. on motion of credi-
s3.es,,s,. .s-1lsArzS .sxszsassa,.,rza