Bank at Decatur v. Johnson

GOLDTHWAITE, J. The question arising from the pleadings in this case is, whether the giving of day of payment to the principal is such a discharge of the surety as to require a valuable consideration, moving from the creditor to him, to sustain a promise to pay, made upon a full knowledge of the circumstances from which the discharge is inferred. It is a well settled rule with respect to parties to bills and notes, who are discharged by the laches of the holder, that a subsequent promise to pay, made with a knowledge of the laches, will revive the original liability. [Chitty on Bills, 534, and cases there cited; Thornton v. Wynn, 1 Wheat. 183.] And in Reynolds v. Douglass, 12 Peters, 497, the same principle was held applicable to a guarantor. The present case, however, is much stronger, as here, the surety, after the extension of time to the principal, if we are to consider the deed of trust creating a further security, is to be so considered, agrees not to avail himself of any advantage which might accrue to him from this circumstance. No question, in point of law, is raised by this agreement, as to the actual discharge of the surety, but the inference from it is irresistable, that he agreed to the extension allowed by the bank to the principal debtor. The plaintiff was entitled to judgment on the demurrer. Reversed and remanded.