Burrill v. Saunders , 36 Me. 409 ( 1853 )

Tenney, J. —

By a written memorandum signed by the plaintiff after he was notified by the principal obligor, of the intention of the latter to take the poor debtor’s oath in fulfillment of one of the conditions of the bond, and before disclosure, it was agreed that the bond, which was not within the reach of the plaintiff to be delivered up, should be made void, the debtor discharged from arrest, and the surety released and discharged from all liability growing out of said suretyship, leaving the judgment still unsatisfied and in full force against the debtor. This memorandum was not under seal and no consideration is expressly stated therein to have been received by the plaintiff; and of itself is insufficient as a release. But the agreement, notwithstanding, may be effectual to cancel the bond, if a consideration is proved aliunde. Statutes of 1851, c. 113. [213.]

The case finds, that after the service of the citation upon the' plaintiff, he said no discloure would be made, that the bond was settled or arranged. This, unexplained, imports a valid transaction; and the written agreement does not tend to-show it otherwise. Although the judgment was to remain unsatisfied, yet other considerations than that of partial payment thereof may have passed from the debtor to the creditor. The language used by the latter will authorize such an inference.

On another ground, the defence must prevail. An express waiver of the condition may be as effectual without a consideration as the performance of that condition. Such is the case of an indorser upon .a promissory note or bill of exchange. He is discharged ordinarily, unless demand is made upon the maker or accepter, and notice thereof seasonably given to him. If however he waives the right of demand and notice, without consideration, he is absolutely holden.

The express agreement of the plaintiff, that the bond was void, made after he was cited by his debtor, ánd before the time appointed to make the disclosure, must be'treated as a relinquishment of the right to hold the obligors upon the bond on account of the failure to fulfil the conditions, and the waiver became effectual, without consideration.

A different construction would make the plaintiff guilty of a successful attempt to practice a gross moral fraud, in order to fix by law, the liability of the surety.

Plaintiff nonsuit.