Lytle's Appeal

The opinion of the court was delivered by

Lowrie, C. J.

No question of usury seems to have been raised before the auditor, and in the matter of Mrs. Lytle’s consent to the assignment made to Wilson, no facts are found by the auditor, or appear in the evidence, to justify a finding that it was obtained from her by any unlawful means. Then, why -doubt its validity ? Before the Act of 11th April 1848, the assignment by the husband alone, in security or-payment of his debts, would have been effectual. Now the law requires her consent, and as it was lawfully given, we must declare the assignment valid.

Then, as to the renewal of the notes. How could that avoid the assignment to their amount ? Wilson was not creditor, and Mrs. Lytle was not surety. Wilson was surety for her husband, and held collaterals from the husband, which needed and had her consent to make them valid as such. As surety he held counter-securities in his hands, given him by his principal, and there is no rule of law that requires him to give them up, because he and his principal had accepted further time from the creditor. These counter-securities -were furnished by the debtor to his surety to save him harmless, and they are not in law released by the renewals or time given to the principal and surety. We do not discover any error that was prejudicial to the right of Mrs. Lytle.

Appeal dismissed at the costs of the appellant.

Read, J., dissented.