Brown v. Executors of Riggins , 3 Ga. 405 ( 1847 )

By the Court.

Nisbet, J.,

delivering the opinion.

This bill was filed by Brown, a surety for White, Head, Kilpatrick, and Griffin, against Riggins, the creditor, for relief; alleging that he was discharged by the acts of the creditor. In this cape the debt was reduced to judgment against the principals and the surety. The bill charges, that Riggins, the creditor, after judgment, and the execution being then in the hands of the sheriff, agreed with Griffin, one of the principals, to grant him time, upon consideration that he would deliver up to him his negroes at the expiration of the time ; and gave directions to the sheriff to stay proceedings on the fi. fa. Also, that at the time of filing the hill, there was no property of any of the principals to he found.

The hill further charges, that the execution was levied on sufficient property of White, another of the defendants and principals, to satisfy it, and was by order of the plaintiff dismissed. It proceeds to pray for a perpetual injunction of the plaintiff’s execution against the surety. One other fact charged in the bill ought to be stated, and that is, that the property levied on belonging to White, was either taken and appropriated by the plaintiff and creditor Riggins, or run off, so as not to be reached by the officer.

The answer came in, and at the trial term the respondents moved to dismiss the bill upon the following grounds :

1. Because the relation of principal and surety ceased after judgment.

2. Because an agreement or contract for indulgence to a principal, after judgment, is not valid, and does not bind the parties thereto, for want of consideration, and therefore the surety is not discharged by such agreement.

The presiding judge overruled the first ground, and dismissed the bill on the second; and to the decision thus dismissing the bill, the plaintiff in error, Brown, has excepted.

[1.] Every principle involved in this case was settled in the case of Curan vs. Colbert, argued at the same term. The contract may be conceded to be void as between the creditor, Riggins, and the principal, Griffin, and still, in the case made, the contract discharged the surety. If not a valid contract, yet it was such an act, as injured the surety, as increased his risk, and exposed him to liability. Whilst it is true, as a general proposition, that mere forbearance to call upon a principal does not, 'per se, discharge the surety, yet if the consequence of that forbearance is injury to the surety, it is equally true that he is discharged. Particularly after judgment, is it dangerous to do any act which increases the risk of the surety. In this case, the principal, Griffin, was at the time of the indulgence given, solvent-, and at the time when the creditor came down upon the surety for payment, he was insolvent ; here is injury to the surety. It has been held that a letter to the sheriff directing a suspension of proceedings against a principal on an execution, discharged the surety. See Butler vs. Winston, 1 Munf. R. 269.

But the dismissal of the levy on the property of the principal, [2.] White, beyond all question discharged the surety. A levy, as to the surety, is a satisfaction. If a creditor who has effects in his hands sufficient to discharge the debt, belonging to the principal, releases them, the surety is, without controversy, discharged. I shall not repeat the argument which I wrote out, in the case of Curan vs. Colbert; for the reasoning and authority which govern this, see that case.

Let the judgment of the Court below be reversed.