The United States, Plaintiffs in error, v. A. Hodge and Levi Pearce, 6 How. 279

Mr. Justice McLEAN delivered the opinion of the court. This is a writ of error to the Circuit Court 'for the Eastern District of Louisiana. William. H. Ker, being appointed postmaster of the city of New Orleans, in 1836, gave a bond, with the defendants as his security, iñ the' sum of twenty-five thousand dollars, for the faithful discharge of his duties-as postmaster. Having faiíed to perform those duties, an action was commenced on the bond against his securities, alleging a large defalcation by Ker, and claiming the'penalty of the bond.

In their defence the defendants set up a mortgage which was executed by Ker the 15th of August, 1839, on property real and personal, to secure the payment to the post-offiee department of a sum not exceeding sixty-five thousand dollars, or such sum as might be found due on a settlement, from and after six months from the date of the mortgage.' This instrument, which gives time for the payment of the. indebtment by Ker, it is pleaded, releases the defendants as the sureties of Ker. A jury, being impanelled, found a verdict for the defendants. A motion for a new trial was made and overruled.

No exception lies to this decision. The motion is made to the sound discretion of the court. • The questions arise on certain instructions to the jury prayed for by the ' district attorney; none were asked by the defendants.

It. is objected, that it does not- appear that the exceptions were taken on the trial, and signed by the judge during the term- The bill of exceptions states, that, “ oh the trial of the cause, the district attorney requested the court to ■ charge the jury,” &c., and at the close, “ to which opinions of the court, refusing to charge as requested, the district attorney excepts, and prays that the bill of exceptions, with the documents referred to therein, be signed, sealed,, and made a part of the record, which is accordingly done,” and which is signed by the judge.

Upon its face, this bill of exceptions appears to have been regularly signed; and the court cannot presume against the record. The first, fifth, seventh, ninth, and tenth instructions, refused by the court, are not so connected with the case as to require a consideration. Nor is it déémed necessary to consider ■ the instructions given as asked or as modified by the court, until ■ we come to the eleventh and last prayer. In this the district attorney requested the court to instruct the jury, “ that, according to. the true

interpretation of said mortgage, there was arid is contained therein no stipulation or agreement to extend the time, or preclude the government from suing the principal and sureties on said bond.” This the court refused to give, on the ground that the jury were the proper judges of the fact whether time was given, on a perusal of the mortgage. In this the court erred. It is its duty to construe all written instruments given in evidence, as a question of law. Payment under the mortgage could not be enforced until after, the lapse of six months from, its date.

And it appears that the mortgage was designed to cover the.whole amount of Ker’s defalcation. But the important question is, whether this mortgage- suspended the legal remedy of the department on the official bond of the postmaster. There is no provision in the mortgage to this effect. And it cannot be successfully contended, that taking collateral security merely can suspend the remedy bn the bond. The holder of a bill of exchange, by taking collateral security of the drawer, not giving time, does dot release the Indorser. James v. Badger, 1 Johns. Cas. 131 ; Kennedy v. Motte, 3 McCord, 13; Hurd v.

Little, 12 Mass. 502 ; Ruggles v. Patten, 8 Mass. 480. Triving time for payment, to discharge the indorser, must operate noon the instalment indorsed by him. Now if the. post-office department had;- by the mortgage,'suspended the right of action on the bond for the time limited in the mortgage, it might have released: the sureties. But no such condition is expressed, and none such can be implied. The mortgage does not purport to be given in lieu of or in discharge of the bond; It. is merely a collateral security, which operatés beneficially to. the defendants.

For' if they shall pay the. defalcation of Kér, or so» much of it as shall amount to the penalty of the bond, and the. mortgaged property shall be sufficient to cotel the whole iridebtment, there can be no. question that the sureties would be subrogated to á due proportion of the rights of, the department in the mortgage. . 1 The1 principle is in no respect different. from that which arises on a promissory note or bill, where collateral security is taken. In the authorities above cited, it was considered that, where an indorser takes, an indemnity for indorsing a note, he. wáives a notice , of demand.

But if the holder of tlie note take additional security from the drawer, the indorser is not released. And it cannot be material of what character the collateral security may be. It may consist of promissory notes, not due, a mortgage payable on time, or any thing else, it does not affect the remedy on the original instrument. This, can only be done by an express agreement, for a valuable consideration. The remedy on the collateral instrument is wholly immaterial, unless it discharges or postpones that on the original' obligation.

There is no- such condition in the. mortgage inkier Consideration, and. consequently it can in no respect affect or suspend the remedy of the post-office department on the. bond; If the remedy on an instrument is suspended, for a valuable consideration, the indorser or security is released, because his right’ to discharge the obligation and be subrogated to the rights of the holder of the paper is also suspended. But a contract to give time is void, and does riot release the security, -unless it be founded. upon a valuable consideration. , It must be a contract which a court of law. or equity can enforce.

Now there is no contract in the mortgage which suspends the right of áction on the official bond. Consequently, no injury is done to the sureties on that'bond. They are. left. tree to act for their'own interests, as they could have acted before the mortgage. The principle on which - sureties are released is not a mere shadow without substance; It is founded upon a restriction of the rights of the sureties, by which they are supposed -to be injured. But by no possibility can they be injured in the case under consideration..

On the contrary, it is .clear that the mortgage may operate beneficially to them, if they shall pay the amount of their bond. And the Cirfcuit Court should have instructed the. jury. to. this effect. The motion for a new trial was not a waiver of a wni of .error. ■ In some of the circuits-there is a rule of court to this effect. But effect could be given to. that rule only by requiring a party to waive on the record a writ of error, before his motiori for a new trial is heard. In,the greater part of the circuits no such rule exists. • It does not appear to have been adopted in Louisiana.

It is insisted that “ the action ÍS' brought wrong; and that, if the judgment be reversed, the plaintiffs cannot recover, because of the nonjoinder of Ker ás a defendant.” The action against the sureties, omitting the principal, is sustained by the Louisiana practice. In Maria Grilling, Adm’x, v. Caldwell, 1 Robinson, 15, it was held that a creditor has' the right, but he is under no obligation, to include the principal and surety in the same suit. And in Smith, Adm’r, v.

Scott, 3 Robinson, 258, it is said a surety, who binds himself with his principal, in solido, is not entitled to the benefit of discussion, and may be sued alone for the whole debt. So in Curtis v. Martin, 5 Martin, 674, it is laid down, that the surety may be sued without the principal. • In Barrow v. Norwood, 3 Louisiana Rep. 437, the court held, where>.the obligation is joint, all the obligors must be made parties to the, j3uit. But that was not a case of suretyship. The action was' brought against one of three indorsers.

On the grounds above stated, the judgment of the Circuit Court is reversed, and the cause remanded for further proceedings, conformably to this opinion.. Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel. ' On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of- the said Circuit Court in this cause be and the, same is hereby reversed, and that this cause be and the same is hereby remanded to the said Circuit Court,, with directions-to award a venire Jadas de-novo.