Thomas v. Dow , 33 Me. 390 ( 1851 )

Howard, J.

— The plaintiffs contracted with the principal, for a valuable consideration received, before forfeiture, and without the knowledge or consent of the surety, to enlarge the time of payment or performance of the conditions of the bond. This contract was valid and binding upon them, and suspended their remedy upon the obligation, until the time of extension had elapsed. If, in violation of the stipulation, the obligees had instituted a suit upon the bond, the principal could have obtained relief in a court of equity by injunction. The argument, therefore, that the plaintiffs waived no rights by the agreement, and that they retained the right to commence a suit at the expiration of the six months, on the bond, if forfeited, cannot be supported.

While the rights of the plaintiff's were suspended, by their contract, the surety could not proceed, by substitution against the principal in their names; nor by furnishing indemnity, compel them to proceed against him. The effect of their agreement was to alter the contract of the surety, to impair his rights, and discharge him from all responsibility?- on the obligation.

In Leavitt v. Savage, 16 Maine, 72, doctrines decisive of this case yvere fully considered, and settled upon principles deduced from authorities in law and equity. Greely v. Dow. 2 Metc. 176.

As the principal has been-defaulted, the plaintiff may have judgment against him, by amending his writ, and striking out the name of the surety, on payment of his costs. R. S. chap. 115, sect. 11.