Porter v. Hodenpuyl

Campbell J.: The only question in this case is, whether, after time given by a contract . with the principal, a surety who promises to pay with full knowledge of the facts, is liable without a new consideration for his promise. It is claimed that having been absolutely discharged by the extension of time, the surety’s promise is at an end; and several cases are cited to show that, where an end has been put absolutely to an obligation, no new one can be created without a new consideration. It is unnecessary to refer at length to these authorities, or to examine into their qualifications; for the rules applying to sureties have been so long and so uniformly settled on their own basis, that any attempt to unsettle them would be unauthorized, and would only lead to confusion. [16] The doctrine that a surety is discharged by the extension of time to his principal, or by any other modification of the contract assured, is not a common law doctrine in its origin, and arose from the practice of Courts of Equity in relieving sureties against liability under such circumstances. There are some cases, even yet, where a court of law can not give complete relief for such causes. The general doctrine, however, has for a long time been allowed to prevail in common law courts; and such a defense may always 'be entertained where the suretyship appears on the instrument sued upon,’’ and in many cases where it does not appear. But it has always been confined to cases where there has been neither prior nor subsequent assent given by the surety. And in every case where, with knowledge of the facts, a surety recognizes his liability, and promises to pay the debt, such promise is applied to the original debt, and requires no new consideration. This has been expressly decided repeatedly, and is recognized without exception by all the respectable text writers. — Mayhew v. Crickets, 2 Swanst. 185; Smith v. Winter, 4 M. & W. 454; Stevens v. Lynch, 12 East, 38; Bank v. Johnson, 9 Ala. 622; Fowler v. Brooks, 18 N. H. 240; Sigourney v. Wetherell, 6 Met. 553; Tebbetts v. Dowd, 23 Wend. 379; Smith Merc. L. 554; Edwards on Bills, 171; 1 Pars. on Cont. 512, note (x); Chitty on Bills, 448; 2 Lead. Ca. in Eq. Part 2, 363, 383; Burge on Suretyship, 209. The charge of the court was correct, and the judgment should be qffirmed. Manning and Ciiristiancy, JJ., concurred.