Kennedy v. Evans

Mr. Justice Waxesr delivered the opinion of the Court.' The first objection urged against the decree, is that the court permitted complainant to show by evidence, outside of the note itself, that he was only security. The note does not disclose (he relation he bore to the contract, whether principal or security. In Burge on Suretyship, 211, it is said, that to enable a surety to avail himself of the defense, that time was given to the principal, in a court of law, it must appear on the face of the instrument, that he is such surety. If two are bound as principals, when one in fact is only a surety, and time has been given to the principal debtor, the surety cannot obtain relief at law, although it will be granted in equity. And Rees v. Benington, 2 Ves., Jr. 540, is referred to in support of the doctrine. It will also be found, that King v. Baldwin, 2 Johns. Ch. R. 254; Miller v. McCan, 7 Paige, 451, and Clark v. Patton, 4 J. J. Marsh. 33, all fully support the doctrine, that in equity, relief will be granted although it does not appear from the note. A large number of other cases might be referred to in support of the rule. In fact, the rule is universally recognized and acted upon by the courts on both sides of the Atlantic, that courts of equity will relieve, whether it appears from the note or otherwise, that the party was only a surety, and time has been given to the principal without his consent. And we have applied the same rule in actions at law. Flynn v. Mudd et al., 27 Ill. 323. The question then arises, whether the defendant in error, as’ he had the right to do, has shown that he was only a surety on this note, and that further time for payment was given the principal debtor, without the assent of the security. If Waughop is to be credited, the facts are fully established. But it is urged that he is incompetent to prove any fact but usury, because he was a party to the judgment. This is a contest between other parties, in no wise affecting his interest. If complainant is relieved from the payment of the judgment, still Waughop would remain liable for its payment to plaintiff's in the judgment, and if the bill is dismissed, his liability is. still the samo, neither increased nor diminished. His interest was equally balanced, and he was a competent witness for every purpose. The question is also presented, whether Aiken, one of the plaintiffs in the judgment sought to be enjoined, was a competent witness for the defendants, by whom he was called. He was also a party to this record, and, as such, was liable for costs. This is held to be a disqualifying interest. Securities for costs, on appeal, replevin, injunction and all such bonds, are held incompetent, although more-remotely liable for costs or damages. In such cases, it is the interest of the party thus held, that judgment should be so recovered, as to relieve them from liability. Nor can it make any difference, that he holds Norton’s bond to indemnify him against loss. It is not a release, and it leaves him liable to pay in’ the first instance with his remedy over. His testimony should have been, and no doubt was, disregarded by the court below, except in so far as it related to usurious interest. Nor do we regard the evidence of Chapman and Smith as overcoming that of Waughop. They only know, that such money was paid, as was credited upon the books. Although they say, that it was not paid on some of the occasions to which Waughop refers, they must be understood as meaning, that it was not paid to them, and they knew of no- such payments. Waughop testifies, that it was paid to Aiken. This may' have been and they not have known it. Chapman shows, that he was inattentive to the occurrences of which he testifies, when lie says that Waughop remained at the bank after the interview with Mrs. Porter and Caroline Maynard, whilst the}!’ swear that he left the bank with them. It is true that this witness afterwards corrects this statement, and says that Waughop must have again returned. If he was mistaken in that statement, no reason is perceived why he might not be ^ in another. Complainant having proved that he was only a security on the note upon which the judgment was confessed, and that further time for its payment was given to the principal, without complainant’s consent, until the principal became insolvent, he was entitled to the decree which was rendered. And it must be affirmed. Decree affirmed.