1 Browne v. Carr, 7 Bing. 508; 8. c. 2 Russ. 600; Langdale v. Parry, 2 Dowl. & Ry. 337. In a suit against the principal and sureties on a bond given by a debtor arrested on execution, a discharge of the debtor in bankruptcy after breach of the bond will not avail the sureties as a defence. Claflin v. Cogan, 48 N. H. 411 (1869).
1 Maingay v. Lewis, Irish R. 5 C. L. 229 (1870).
2 The obligation of the surety in a bond is strictissimi juris, and he cannot be called upon to pay more than the penalty of his bond; and where a surety had paid the amount of his bond on an execution against him and his principal, this was held to be a good defence to a second action on his bond. Leggett v. Humphreys, 21 How. 66 (1858).
3 A surety who has signed a bond for the faithful discharge by his principal of the duties of an office, is discharged if his principal subsequently accepts an appointment to an office inconsistent and incompatible with the first. The Guardians of the Mailing Union v. Graham, Law R.
5 C. P. 201 (1870).
4 Miller v. Stewart, 9 Wheat. 680; Wright v. Johnson, 8 Wend. 512; Bank of Washington v. Barrington, 2 Penn. 27; Sasscer v. Young, 6 Gill
& Johns. 213; Rathbone v. Warren, 10 Johns. 587; Bacon v. Chesney, 1 Stark. 192; Bonar v. Macdonald, 3 H. L. C. 226; 1 Eng. Law & Eq. 1.
5 But a surety is not discharged by a contract between the creditor and a third person, not a party to the contract, to give time to the principal. Frazer v. Jordan, 8 El. & B. 303 (1858); and see the note of the American editor.
6 Owen v. Homan, 4 H. L. Cas. 997; Webb v. Hewitt, 3 Kay & J. 438; Boaler v. Mayor, 19 C. B. (x. 8.) 76; Sohier v. Loring, 6 Cush. 537; Hutchins v. Nichols, 10 Cush. 299.
7 But payment of part of a debt after it is due is not a sufficient consideration for a promise to give time to the principal debtor, so as to discharge his surety. Mathewson v. Strafford Bank, 45 N. H. 104 (1863).
8 Browne v. Carr, 7 Bing. 508; 8. c. 2 Russ. 600; Nisbet v. Smith. 2 Bro. Ch. 579; Bank of Ireland v. Beresford, 6 Dow, 233; Rees v. Ber-rington, 2 Ves. Jr. 540; Peake v. Dorwin, 25 Vt. 28; Watriss v. Pierce, 32 contract;1 or covenant Dot to sue him;2 or agree to release him;3 or discharge securities held against the principal; 4 or
N. H. 560 (1856); Wright v. Bartlett, 43 Id. 548 (1862); Lime Rock Bank v. Mallett, 42 Me. 349 (1856). But see the late case of Owen v. Homan, 4 H. L. Cas. 997; 25 Eng. Law & Eq. 1, 12, where the contrary rule is laid down, reversing the judgment of Lord Truro in the same case,
3 Macn. & G. 378. See, also, Petty v. Cooke, L. R. 6 Q. B. 790, 795 (1871). The agreement to give time need not be express or positive; it may be inferred from acts and declarations as in other contracts. Brooks v. Wright, 13 Allen, 72 (1866). A guaranty of the payment of goods consigned to a third person for sale is discharged by the consignor's taking from the consignee a promissory note, payable at a future time, for the price of the goods, after it has become due. Carkin v. Savory, 14 Gray, 528 (1860), citing and approving the case of Chace v. Brooks, 5 Cush. 43. An agreement for extension, made after the maturity of a contract, does not at law discharge the surety. Hayes v. Wells, 34 Md. 512 (1871); Rees v. Berrington, 2 Ves. Jr. 540; United States v. Howell, 4 Wash. C. C. 620.
1 Eyre v. Bartrop, 3 Madd. 221; Lopez v. De Tastet, 8 Taunt. 712; Bowmaker v. Moore, 3 Price, 214; Archer v. Hale, 1 M. & P. 285; s. c.
4 Bing. 464; Hallett v. Mountstephen, 2 Dow. & Ry. 343; Whitcher v. Hall, 5 B. & C. 269; s. c. 8 Dow. & Ry. 22. See, aso, Pybus v. Gibb, 6 El. & B. 902; Berwick v. Oswald, 3 Id. 653; Skillett v. Fletcher, Law R. 1 C. P. 217 (1866). But if a guaranty be for two independent things, an alteration in one seems not to discharge the surety from the other. Harrison v. Seymour, Law R. 1 C. P. 518 (1866); Skillet v. Fletcher, supra. See further, on the general subject, Bamford v. IIes, 3 Exch. 380; Frank v. Edwards, 8 Exch. 214; 16 Eng. Law & Eq. 477, and Bennett's note; Mayor, etc. v. Oswald, Id. 236; Veazie v. Carr, 3 Allen, 14; North-western Railway Co. v. Whinray, 10 Exch. 77; 26 Eng. Law & Eq. 488; Stewart v. McKean, 29 Id. 383; 10 Exch. 675; Watriss v. Pierce, 32 N. H. 560; Brigham v. Wentworth, 11 Cush. 123. If A. becomes surety to B. for the fulfilment of a building contract by C, by the terms of which C. is to be paid in instalments as the work progresses, if B. pays C. the last two instalments before the proper contract time without A.'s knowledgo or consent, it is such an alteration of the contract as will release A. Gen. Steam Xav. Co. v. Rolt, 6 C. B. (n. s.) 550 (1859). And see Calvert v. London Dock Co., 2 Keen, 638; Taylor v. Jeter, 23 Mo. 244.
2 Dean v. Newhall, 8 T. R. 168; Hutton v. Eyre, 6 Taunt. 289; Theobald on Princ. and Surety, 165.
3 Hawkshawu. Parkins, 2 Swanst. 539; Theobald on Princ. and Surety, 115. Of course a surety is not discharged by a release of the principal if he has assented or agreed not to be. Union Bank v. Beech, 3 H. & C. 672 (1865); Cowper v. Smith, 4 M. & W. 519; Adams v. Way, 32 Conn. 160 (1864); Benjamin v. Hillard, 23 How. 149 (1859).
4 Although it is a general principle that a discharge by a creditor of secuaccept a composition from him;' he loses his claim upon the guarantor.2 In like manner, where a person pledges his property as security for the performance of the contract of a third party, the property stands in the position of a surety; and any changes in the contract which would have discharged a surety upon the contract will discharge the property pledged as security.3 But if the guarantee merely take a new or additional security from the debtor, not having the effect to give him time, it will not discharge the surety, because it is very manifest that this will not alter the actual contract to the possible injury of the guarantor.4 Or if, after the surety rities for a debt held by him without the consent of the surety for such debt discharges the surety to the extent of the value of such securities, it does not apply to securities taken for a temporary purpose. The Pearl Street Congregational Society v. Imlay, 23 Conn. 10 (1854). The security, the discharge of which by a creditor will release a surety, must be a mortgage, pledge, or lien, some right to or interest in property which the creditor can hold in trust for the surety, and to which the surety, if he pay the debt, can be subrogated; and the right to apply or hold must exist and be absolute. Glazier v. Douglass, 32 Conn. 393 (1865). 1 Lewis v. Jones, 4 B. & C. 506.