Clippinger v. Creps

The opinion of the Court was delivered by Rogers, J. If a creditor, by any contract which can be enforced against him at law or in equity, gives time to his debtor, he dis [48] charges the surety; for if, notwithstanding such contract, it were competent to sue the surety, the latter would immediately have his remedy over against the debtor. This would be in fraud of the contract of forbearance, which the creditor would thereby indirectly defeat. The doctrine that if the creditor gives time to the principal debtor, the surety is discharged, was first introduced in courts of equity. It was founded on this principle, that every surety has a right to come into a court of equity, and require to be permitted to sue in the name of the creditor. If, then, the creditor gives time to the principal debtor, or does any act which alters the situation of the parties, he prevents the surety from using his name with effect. And the law is the same even when the arrangements may be for the benefit of the surety, for he stands upon his contract, and is discharged from all obligation, if any alteration is made in it without his consent. How then does this case stand, on the facts which were in evidence. John Clippinger, the defendant, was the surety in a note given by himself and John Cring to the plaintiff. The plaintiff and the principal debtor, without the consent of the surety, enter an amicable action, before a justice of the peace, in which the defendant confesses a judgment with a stay of execution for twelve months. It was a proceeding under the fourteenth section of the act of 20th March 1810. The act provides, that “a justice of the peace shall take cognizance of any matter or thing, made so by the act (20th March 1810) for any sum exceeding 100 dollars, if the parties voluntarily appear before him for that purpose, and shall proceed to the recovery thereof, by entering judgment if confessed, or if submitted to him by reference ; but no execution shall issue before the expiration of one year from the date of such judgment, if the party defendant be a freeholder, or shall have entered special bail, &c.” At the time the judgment was.'entered by the justice, the real estate of Cring, the principal debtor, was incumbered by mortgage, to an amount exceeding its value. The argument is, that the surety has no cause to complain, because this was a proceeding warranted by an act of assembly, and that no greater advantage was given by the creditor than the debtor had a right to claim. The soundness of this argument may be well questioned. It may admit of doubt, whether a debtor, whose estate is incumbered to an amount greater than its value, is a freeholder within the meaning of the act, and as such, entitled to a stay of execution for twelve months. At common law, an estate of freehold, liberum tenementum, a frank tenement, is defined by Britton to be the possession of the soil by a freeman. And St Germyn tells us, “that the possession of the land is called, in the law of England, the frank tenement, or freehold.” At common law, he who has the actual possession of land for life, or a greater estate, is a freeholder. But that is not the sense in which the term freehold is understood in the act of assembly. We must have recourse to other acts of assembly in which the term is used and defined. The act of the 20th March 172& speaks of a freeholder, [49] as one who is an inhabitant of the commonwealth, having resided therein for the space of two years, who has thirty acres of land, in fee simple, well settled, twelve whereof, or more well cleared or improved ; or one who hath a dwelling house, with fifty pounds and clear estate, or who hath unimproved lands worth fifty pounds. Such estate must be a clear estate. It has always been held, that an incumbrance, to any amount, takes from him the' privilege of the exemption from arrest given him by the act referred to. When a subsequent act dispenses with bail from a freeholder, which it exacts from others, we are to take it, that the legislature has reference to freeholders as understood in the statute. And this view of the case derives force, from the tenth section of the act of 1810. “No judgment, whether obtained before a justice, or in any court of record of this commonwealth, shall deprive any person of his or her right as a freeholder, longer or for a greater time than such judgment shall remain unsatisfied ; any law, usage or custom to the contrary notwithstanding.” This provision would be unnecessary, on the supposition that the debtor was entitled to a stay of execution, whether his estate of freehold was incumbered or not. The section marks the understanding of the legislature, that a judgment deprives the holder of real estate of the privilege conferred by the act, as long as it remains unsatisfied. It revives only when the incumbrance ceases to exist, nor can I perceive what security is afforded to the creditor by afreehold incumbrance to an amount greater than its value. Nor is the law unreasonable, as, in such cases, all that is required is special bail, which is exacted from others. But the surety is discharged from the contract on other grounds. A surety has a right to come into a court of equity, and require to be permitted to sue in the name of the principal debtor. In the case at bar, Clippinger would have a right to demand the use of the judgment confessed before the justice. He has a direct interest in it, and should have been consulted before any such proceeding was had. It must be remembered, that the justice has no jurisdiction, except by consent. The proceeding is not compulsory, but voluntary, and non constat, if Clippinger had been consulted, he would have consented to the confession of judgment before a justice, or before the justice. The course pursued is an anomaly unknown to the common law, and only adopted in this state. When, therefore, the act requires consent to give jurisdiction, it must mean the consent of all who are to be affected by it. It is no answer to say that, in this case the surety is not injured. Supposing the fact to be so, yet the surety has a right to say, I stand upon my contract, which you have undertaken to vary without my consent. He is placed in a different situation, without his consent, from that in which he placed himself when he entered into the contract. Judgment reversed.