The President, &c. of the Adams Bank, versus Humphrey Anthony, 18 Pick. 238

Morton J. delivered the opinion of the Court The defendant, though an original promisor, stands in the relation of surety to his co-promisors. This gives him some privileges and advantages which the principals are not entitled to, and subjects the plaintiffs to some duties and obligations which are not due to the principals. The note in suit was a binding contract on all the makers ; and the only question now is, whether the plaintiffs have done any thing which will discharge the surety.

It must be borne in mind, during the investigation, that the principals had become insolvent, and that there was a scramble for their effects by their sureties, indorsers and creditors. Between those different claimants it was not the right or the duty of the plaintiffs to show favor or partiality. The general principles contended for by the defendant’s counsel are undoubtedly correct. There are several acts of the creditor, which, though they might have no effect upon the liability of principals, would discharge sureties.

If the creditor releases collateral security for his debt, or discharges an indemnity, or gives time of payment to the principal, or does any other act to the prejudice of the legal rights of the surety, he thereby exonerates the surety. If the creditor has in his hands security or the means of payment, he holds them for the benefit of the surety as well as himself, and if he gives them up, to the injury of the surety, he violates a trust which will discharge him.

These principles, which seem to be fully supported by the authorities cited by the defendant’s counsel, though found in the code of equity, have been substantially adopted by our courts of law. The Boston Hat Manufactory v. Messinger, 2 Pick. 223; Baker v. Briggs, 8 Pick. 128. But we do not think that the defendant brings himself within them. When the plaintiffs commenced their former action and made their attachment, it was optional with them to include such and so many of their demands against the principals as they thought proper.

They were under no obligation to secure either of their sureties ; and if they secured a part, the others would have no reason to complain. In the defendant’s case it would have been a breach of good faith to have sued his note. They had, at his request, 'implicitly agreed to give a further credit upon it, which had not expired when their suit was commenced. And although there had been concluded no perfect and obligatory contract to this effect, yet if they had sued it, without his consent, it would have been dishonorable, if not dishonest.

If, therefore, the plaintiffs had specifically described the notes upon which they made their attachment, omitting, as they would have done, the one now in suit, the defendant would have had lc ground of complaint. But their declaration was general and broad enough to cover mis note. The defendant contends that, upon his request, they were bound to include it in their judgment; and that because they refused to do it he is exonerated from his liability. The plaintiffs, when they commenced their former action, did not intend to include this note, and never supposed that it was included.

It matters nothing, that their intention was formed upon false reasoning, and that had they known their legal rights they would have come to a different determination. But even if they had known that they were not legally holden to grant the delay to which they had agreed, and for which they had received interest, it is not certain, nor even probable, that they would have disregarded this arrangement with the defendant himself and have sued his note. But it is enough for our present inquiry, that, in fact, their intention was not to include it in this writ.

Were they afterwards, upon the defendant’s request, bound to insert it ? W e think they were not. It is at least questionable whether they had a legal right to do it, and whether the introduction of this note into their judgment would not have been a fraud upon the after attaching creditors, which would have avoided their own attachments. The case of Hodges et al. v. Holland, 16 Pick. 395, relied upon by the defendant’s counsel, scarcely touches this point; but as far as it bears upon it, is adverse to the defendant’s argument. In that case there were no subsequent attachments.

And this circumstance seems to be relied upon by the Court, and furnishes an inference, that in their opinion, had there been any, it would not have been safe for the plaintiff to give in evidence a demand not originally intended to be included in his writ. We therefore think the plaintiffs acted correctly and wisely in refusing to incur this risk. But even if they could have done it without danger to then legal rights, they were under no obligation to do it. And it was alike forbidden by principles of honorable and fair dealing and of impartial justice.

It would have been to take advantage of a power which fortuitous circumstances had placed in thei. hands,' to favor one creditor at the expense of others equally meritorious. Nor did the offer of indemnity by the defendant, in the slightest degree vary the legal or moral obligations and duties of the plaintiffs. Had the indemnity been adequate, the plaintiffs were not bound nor ought they to have acceded to it And if they did wrong at all in the transaction, it was in their offer to give the defendant the control and management of their suit upon any terms.

No more were they bound by any agreement, to include this note in their judgment. There were proposals made and answers returned, and much negotiation between the parties and an approximation to that union of their minds which con - stitutes an agreement; but not the actual contact which i: necessary to its consummation. But if the agreement had been closed, it would not have been obligatory. Were there no other infirmity, the want of a legal consideration would have been fatal to it.

On the whole, we are perfectly satisfied that the plaintiffs have done nothing in this matter, of which the defendants can rightfully complain ; and that he has no legal or equitable defence to this action. Defendant defaulted.