Gilder v. Jeter

GOLDTHWAITE, J. There is no question at this day, that the giving of time to the principal debtor, has the effect to discharge the surety, and there are many cases in our own court on this subject. But in all cases of this nature, the time so given must be by a contract which is binding, and it is on this ground, that an agreement without consideration, is said not to produce this effect. In Philpot v. Brant, 4 Bing. 717, an executrix promised the holder of the bill, of which her testator was the acceptor, if he would let the matter stand over, she would engage to pay it out of her private income. The holder agreed he would wait a reasonable time if the interest was paid, and in pursuance of this agreement, interest was paid out of the private income of the executrix. This was held not to discharge the subsequent parties on the bill for the reason that the promise by the executrix, to pay the bill out of her own estate, was void, by the statute of frauds. The reason on which the surety is discharged by the giving of day to the principal, is, that his hands are tied up in regard to the principal debtor, and as the surety has the right to proceed immediately upon paying the debt, this right is gone by the giving of day. [Pitman on P. & S.] It is evident that no other than a legal contract can produce this effect, and therefore, if the plaintiff in this case had sued the principal debtor, before the expiration of the year, the latter could not be permitted to invoke the usurious contract to delay the suit; and as he could not claim delay under it, so neither can his surety urge, that it prevented him from paying and immediately sueing. The analogy supposed to exist between this contract and one made with an infant, fails, for the reason that the contract with the infant is voidable only, and not void or illegal. Nor can the party [259] have aid from the principle settled in Cook v. Dyer, 3 Ala. Rep. 643, as here, he is obliged to set up the usurious contract as valid, before his right can be established. Independent of the reasoning on which we think the charge of the circuit judge sustained the decision, Wilson v. Langford, 5 Hump. 320, is precisely in point, as is also Kyle v. Bostick, 10 Ala. Rep. 589.] We have only to add, that the judgment is affirmed.