Caller v. Vivian , 8 Ala. 903 ( 1846 )

GOLDTHWAITE, J.

1. The equity supposed to arise out of the agreement between Caller and Yivian, previous to the confession of the judgment by the former, is not of that description which gives jurisdiction to a court of chancery. If the agreement was based on a sufficient consideration, the parly has a clear legal remedy for its breach, and under ordinary circumstances, a court of equity will not interfere to compel the specific execution of a contract affecting personal chattels only. But if the power to grant relief was conceded in a case like this, the bill ought not to be sustained without an allegation that Caller had paid the debt, for which his liability, in this view of the case, is admitted, independent of the judgment. The payment of the money, and not the mere form of confessing the judgment, is the essence of the contract, to transfer that obtained against Bullock, and without this, it would be inequitable to ask the transfer.

2. The other point however, is the one here chiefly relied on; but although it is conceded, every indorser, is quasi a surety, yet we think the bill has no equity. The rule is, that if the holder of a security by a valid contract, gives the principal day of payment, then the surety is discharged. [Chitty on Bills, 447; Inge v. Bank, 8 Porter, 108; Pyke v. Searcy, 4 Ib. 61.] There is no obligation to active diligence, and the creditor may forbear the employment of coercive measures as long as he chooses. [Inge v. Bank, before cited.] It is true there are some decisions which hold, that the release of the principal’s property from execution, will enure to release the surety, but we do not well see why the creditor should-be bound to follow up proceedings when commenced, which he was in no manner required to commence in the first instance. Some of these cases are quoted by us, Carpenter v. Devon, 6 Ala. Rep. 718, but we do not understand that case as going further than the recognition that the condition of a surety continues, although the debt is reduced to a judgment; and that ■ even then a valid contract, giving day of payment to the principal, is good cause to enjoin a judgment against the surety. The recognition of a rule, such as is contended for by the plaintiff in error, would deprive the holder of securities of a great portion of that discretion in the management of suits, which is so important to be exercised, and throw on him the necessity of pur-suing his debtor with the utmost severity, at the risk of losing his recourse on those who are collaterally bound. We are unable to ascertain any principle upon which such a rule can be based, for it seems clear, that the release of a levy in noway impairs the rights of a surety; if he pays the debt he has the entire control of the security, when he stands as indorser; or if otherwise, can at once proceed against his principal. It is certainly true that the discharge of a regular levy might be productive of injury to the surety, and so in most cases would be the dismissal of a suit, or the neglect to commence one. Thei-e is indeed no other principle than the one we have previously stated, and the facts of this case not being within it, the bill was pi'oper]y dismissed.

This conclusion renders it unnecessary to consider the effect of the conduct of the complainant, in confessing the judgment when all the circumstances were known to him.

Decree affirmed.