Warner v. Crane

Walker, J. The doctrine seems to be well settled, that the extension of time and giving further day of payment by the creditor, on a valid and binding agreement with the principal debtor, without the assent of the surety, discharges the latter from liability on the contract. Davis v. The People, 1 Gil. R. 409 ; McHatton v. The People, 2 Gil. R. 638. And the special pleas in this case allege that the payee of the note thus gave time to the principal debtor, without the assent of the surety. They substantially presented a good defense to the action against appellant. One of them avers that the assignment to plaintiff was made after the maturity of the note, and after the time given for payment after its maturity had expired; and the others, that the beneficial interest in the note was still in the payee. A person taking negotiable paper over due and dishonored for want of payment, takes it subject to all defenses'by prior holders, and if this note was taken by plaintiff after the expiration of the extended time for payment, the rule of caveat emptor applies. If the assignment was only colorable, and the beneficial interest still remained in the payee, and he extended the time of payment as alleged, he should still be held liable for his own acts; and as his receipt would have been good against the claim, upon showing that he was the real party in interest, we are unable to perceive any reason why any other description of discharge would not be equally good. But the demurrer was special, and assigned as cause, that these pleas only amounted to the general issue. There can be no question but the defense set up by these pleas would have been admissible under the general issue. And as a general rule, whatever may be given in evidence under the general issue, is considered as amounting to that issue. Some matters must be pleaded specially, and some others may be; but this defense is not embraced in either of them. We are, therefore, of the opinion that there was no error in sustaining this demurrer. If, however, this was not true, the judgment should be sustained on different grounds. The defense being admissible under the plea of non-assumpsit, the presumption is, that the court below permitted the appellant to avail himself of this defense on the trial; and in this case, the presumption is not rebutted by a bill of exceptions, showing that he was denied that privilege; and failing in that respect, the judgment should be affirmed. Judgment affirmed.