Freeland v. Compton

Pee, Cueiam. 1. As to the ground of defence in this case, based upon the settlement of the debt, sought to be enforced in the bill, by means of the stock held by Compton in the Commercial Bank of Rodney, the allegations of the cross-bill of Pintará, showing this settlement, are fully denied by the answer of the complainants. It appears that Compton and the president of the bank differed as to the par nominal value of the stock which was to be allowed in the settlement; Compton claiming allowance for five per cent, above its par nominal value, by reason of supposed profits accrued upon it, for which it would be entitled to a dividend, when a dividend of profits should be declared; and the president refusing to receive the stock in settlement on those terms. In consequence of this disagreement, the stock was never surrendered or transferred, in payment of the debt; and whether Compton or Freeland was right, in the view taken by them respectively of the value at which the stock should be taken in the settlement, is immaterial. It is sufficient that the settlement was never made; and therefore it cannot be held as a payment and discharge of the debt in controversy. 2. In order to give to the stays granted by the plaintiff on the executions against Compton, the effect of discharging Pintará, his surety, two things are well settled in this court, as necessary to be shown: First, that the stay was granted upon such a consideration as would create a binding contract upon the plaintiff, which which would tie his hands, and prevent him from proceeding with his execution; and second, that the stay should be for a definite period. Conceding that the evidence is sufficient to show a consideration — which we think is not the case — it is clear that the execu [427] tions are not shown to have been stayed for any fixed period, or that the plaintiffs might not, at any moment, have proceeded to issue and enforce a new execution. Newell v. Hamer, 4 How. 684; McGee v. Metcalf, 12 S. & M. 533. Decree reversed, and decree for the complainants in this court ordered.