Moore & Barney vs. Paine, impleaded, &c., 12 Wend. 123

By the Court, Nelson, J. Admitting the principle upon which the plea in this case is founded to be sound, for it is not material to examine that question, 7 Bing. 508, 2 Russ. 600, 2 Dowl. & Ryl. 337, the facts spread forth in the replication afford a conclusive answer to it. There can be no doubt, should the defendant in this case be obliged to pay this debt, that he can resort to his principal for reimbursement, notwithstanding the discharge, if he has not already obtained it. 15 Johns. R. 467. 9 Wendell, 312.

It is true that the release of one of two or more obligors to a bond, operates to discharge all, 9 Wendell, 336 ; but this rule as .technical, and a discharge under the insolvent laws has necessarily no such effect. 1 Caines, 4. The plea could not be sustained upon this principle.

The ground obviously relied on, from the facts set forth in the plea, and upon which alone it can be sustained, if at all, is, that the defendant was a surety for Freer, the principal, that this was known to the obligees, who were instrumental in procuring Freer’s discharge from all his debts under the insolvent laws, and of course from the payment of the debt due on the bond in question.

It appears that they were materially so; for unless they had united in the petition to the judge, Freer could not have obtained the discharge, as two thirds of his debts would not and could not have been signed off under the act, had they not become petitioning creditors. The generally acknowledged and familiar principle is, that wherever the creditor deals with his debtor so as to alter the rights of the sureties, or in any way to impair their legal remedies against the principal, the sureties are discharged.

They are favorites in the law, and are responsible only upon the strictest construction of their contract, and courts are bound to scrutinize closely any interference of the creditor with the debtor, and see that it is not to their injury. But it is obvious that ihis prin. ciple has no application to this case. The sureties received from the debtor in June, 1817, the whole amount to become due on the bond in question ; and after that, as between him and them, they were the principals, and owed the debt.

The discharge of Freer could in no possible way interfere with their rights or liabilities, so long as they held in their hands a complete indemnity against the bond, and he is not accountable to them if they are obliged to pay it. That obligation he has already discharged. Judgment for the plaintiffs, with leave to the defendant to amend, on payment of costs.