Bowers's Adm'x. v. State ex rel. Dryden ( 1826 )

Stephen, J.

at this term delivered the opinion of the court. This action was instituted in the court below, upon a bond executed by William Bowers, as guardian to Ann B. Coburn, in which bond John Bowers, the defendant’s intestate, united with him as surety. Ann B. Coburn, after she obtained the age of 16 years, passed her receipt to William Bowers for the full amount of her personal estate, without having received the same, but in consideration of a single bill, which was executed and delivered to her by her guardian, in which he bound himself to pay at a future day the sum of $330 21, it being, as the bill expresses it, the amount of her personal estate, with legal' interest till paid. And the sole question for this court to decide is, whether, in consequence of this transaction between the ward, (after she had attained the age of IS years, and became by the law ofthis state entitled to the possession of her estate,) and her guardian, all legal liability on the part of John Bowers, his surety in the bond, ceased and determined? It is a well established principle of law, that a debt or right of action cannot be extinguished by the acceptance of an obligation or undertaking of equal dignity; it must be one of higher grade in the estimation of the law to produce that effect. See Williamson vs. Andrew, 4 Harr. & M‘Hen. 482, where this principle was settled by the court. That was an action of debt on a bond, and the defendant pleaded that he made a mortgage to secure the payment of the money, and the plaintiff accepted thereof in satisfaction; on demurrer, the court gave judgment for the plaintiff. In 3 Bacon’s Abridgment, title Extinguishment, 107, the law is stated to be, that the accepting of a security of equal degree, is no extinguishment of the first debt; as where an obligee has a second bond given to him; for one deed cannot determine the duty upon another.

This is a well settled law in cases of contract made between parties having a general legal capacity to contract; but in the' case before the court, it appears that Jinn B. Coburn had not attained the age of twenty-one years, and consequently had not guch general power of contracting; but with reference to her capacity to make such an agreement, she was still, in contemplation of the law, a minor. This principle was solemnly established by this court in Davis vs. Jacquin & Pomerat, 5 Harr. & Johns. 100, where the court express their opinion in the following terms: “The object of the law, (meaning the act of 1798,) was to enable an infant female, at the age of sixteen, to receive from her guardian, and take into her possession, her real and personal estate. So far the law conferred on her a new capacity; but this capacity does not destroy the state of legal minority, because it is consistent with it. ” In this case it is moreover to be considered, that the security taken by Jinn B. Coburn, was less beneficial to her than the one she before had; because, not only was the time of payment extended, and a risk of eventual loss thereby incurred, but it was the single bill of her guardian alone, without the joint responsibility of a surety

JUDGMENT AFFIRMED.