Wood against The President, Directors and Company of the Jefferson County Bank

*Wood against The President, Directors and Company of the Jefferson County Bank. UTICA, August, 1828. toTh^°1l^ai0a breach to one of several counts in as- sumpsit, is aided hy the verdict; and may he amended. Where a statute requires that a certain affidavit shall be made without saying before whom, (e. g. the 1st sect, of the stat. sess. 39, ch, 231, providing for incorporating the Jefferson Co. Bank,) it may he taken before any magistrate or officer having power to administer an oath. The requisites to give the Jefferson County ¡Bank existence as a corporation according to the statute, (sess. 39, oh. .231,) pleaded and set forth particularly in reply to a plea of nul tiel corporation, put in at the suit of the bank, and issues taken upon -those several requisites in a rejoinder. Though a party, in pleading matters which constitute his right, (e. g. the organization of a bank under its charter,) set forth more matters than are necessary, upon which, with those that are necessary, issue is joined, yet he need prove those matters alone which are necessary. Thus, where a bank having sued on a note, replied to a plea of nul tiel corporation, (instead of demurring as it might,) setting forth all the steps made necessary hy the act, (sess. 39, ch. 231,) to give it existence as'a corporation, with divers others; upon all which matters issued was joined; yet held, that at the trial, it need prove-no more than would be necessary upon the general -issue. The plea of nul tiel corporation is bad on special demurrer. Epon the general issue, or nul tiel corporation, pleaded in an action hy The Jefferson County Bank, incorporated hy the statute, (sess. 39, "ch. 231,) it is not sufficient for the hank merely to produce the act of incorporation; hut certain steps were required hy the statute to he taken before the corporation had existence; g. opening books, subscription and distribution of stock, the choice of (directors, and by them a president and cashier, fyc. Yet, producing the hooks Showing the election of the officers, and the affidavit required hy the first section of that act, ate, prima facie, sufficient to prove that all the previous steps required hy the statutes were taken, A holder of a promissory note giving time to the maker, to the prejudice of the endorser, discharges the latter. An agreement with the maker to prosecute the endorser, and if the debt cannot he collected, then, to receive security from the maker at two years, does not supend the right to sue the maker at any time before the suit against, and failure to collect of the endorser. Whether a cashier of a bank holding a note, has power to make an agreement to suspend the payment of the note without the .consent of the directors ? Quere. On error from the Jefferson C. P. In the court below the bank declared against Wood, as endorser of a note, dated May 14th, 1825, made by one Heath for $150, adding the common count for monies, &c. The breach or refusal to pay, in the conclusion of the declaration, referred to the count on the note only. The defendant below pleaded, 1. Non assumpsit ; 2. “ That the plaintiffs are not of a body politic and corporate, and have no right to sue the said defendant; and this he is ready to verify, wherefore, &c.” To the second plea, the plaintiffs replied as follows : That before the commencement of this suit, viz. on the 17th day of April, A. D. 1816, an act entitled “ an act to incorporate the Jefferson County Bank,” was passed by the legislature of the state of New York, by which, among other things it was enacted by the people of the state of New York, ^represented in senate and assembly, that all such persons as should be stockholders of the Jefferson County Bank, should be, and were to be from time to time, and until the first day of January, A. D. 1732, a body politic and corporate, in fact and in name, by the name of The Jefferson County Bank; and that, by that name they and their successors, until that day, might and should have succession, and should be in law, persons capable of suing and being sued, pleading and being impleaded, answering and being answered unto, defending and-being defended, in all courts and places whatsoever, and in all manner of actions: provided, however, and it was made one of the conditions of said act of incorporation, that the said bank should be established in the county of Jefferson, and that its operations of discount and deposit should be carried on in one of the villages of said county, and not elsewhere. And it was also further provided arid declared in and by the said act, that it should not be lawful for the said bank to issue any notes or bills, until an affidavit by the president and cashier of said bank should have been made and filed in the clerk’s office of the county of Jefferson, stating that the sum of twelve and a half per cent, upon each share of the capital stock of said bank had been actually paid into said bank in specie, as by reference to said act will more fully and at large appear. And it was also further enacted in and by the act above mentioned, that the capital sum of said bank should not exceed $400,000 ; and that a share in said bank should be $50, and that subscription books should be kept open under the direction of the following persons, as commissioners to apportion the stock and determine on a site for the banking house, viz. Elisha Camp, &c. (naming the commissioners,) until the whole of the stock of said corporation was subscribed for, and five per cent, on the amount of the same paid into the hands of the said commissioners. And it was also further enacted, in and by the act aforesaid, that the commissioners above named, or a majority of them, should meet at the house of Isaac Lee, in the village of Watertown, and fix on a site for the banking house, (meaning for *the banking house for the said The Jefferson County Bank,) and make an equitable distribution of the stock of said corporation among the subscribers for the same, and receive from the said subscribers the sum of five per cent, on the amount of their said subscription, on the first Monday of June next after the passing of the said act, viz. on the first Monday of June, A. D. 1816, as by reference of the said act will more fully and at large appear. And the said plaintiffs in fact say, that the said bank was • established in the said county of Jefferson, and that the operations of said bank hitherto have been, and still are, carried on in one of the villages of said county of Jefferson, "and not elsewhere. The said plaintiffs further in fact say, that the said bank, to wit, they the said plaintiffs, did not issue any notes or bills until an affidavit by the president and cashier of said bank was made and filed in the clerk’s office of the county of Jefferson, stating that the sum of twelve and a half per cent, on each share of the capital stock of the said bank had been actually paid into the said bank in specie; and that such an affidavit was made and filed as aforesaid, to wit in the clerk’s office aforesaid, to wit on the first day of January, 1817. And the said plaintiffs further in fact say, that the said subscription books for the stock of said bank were kept open in the manner and form, above prescribed by the said act, to wit, under the direction of the persons above mentioned, appointed commissioners -to apportion the stock of the said bank or corporation, and to determine on the site for the banking house of said corporation, until the whole of the stock of the -said corporation was subscribed for, and five per cent, on the amount of the said subscriptions paid into the hands of the said .commissioners. And the said plaintiffs in fact say, that the said commissioners, or a majority of them, did meet at the house of Isaac Lee, in the village of Watertown, to wit, on the first ¡¡Monday in June, A. D. 1816, and did then and there fix on a site for the said banking house, to wit, on a certain lot of land situate in the village of Adams, in said county -of Jefferson; and that the said commissioners did then and there, to wit, at the house of Isaac Lee, in said village .of Watertown, to wit, on the *first Monday in June, A. D. 1816, aforesaid, make an equitable distribution of the said stock of the said corporation among the subscribers for the same, and received from the said subscriptions 5 per cent, on the amount of -their subscriptions. And the said plaintiffs aver that thirteen directors of said bank were duly chosen, in manner and form prescribed in and by the said act, and that -the enactments, requirements and -provisions of the said act, and all and every and each of them have in all things been performed, fulfilled and complied-with-; and that they, the said plaintiffs, hitherto, to wit, since -the first Monday in. June, A. D. 1816, have been, and during all the time aforesaid were, and still are, a body politic and corporate, in fact and in name, by the name of the President, Directors and Company of the Jefferson County Bank-; and that they the said -plaintiffs have done, performed and fulfilled all things on their part to be done, -performed and fulfilled in and by the said act. And the said plaintiffs aver, that they the said' plaintiffs are the same, The President Directors and Company of the Jefferson County Bank, mentioned in said act, entitled An act to incorporate the Jefferson County Bank,” and not other or different The President, Directors and Company of the Jefferson County Bank: All which the said plaintiffs are ready to verify; wherefore, &c. To this the defendant rejoined as follows: “That no act entitled ‘An act to incorporate the Jefferson County Bank’ was ever passed by the legislature of the state of New York, enacting that all such persons as should be stockholders thereof should be, and were thereby ordained, constituted, and declared to be, from time to time, and until the first day of January, A. D. 1832, a body politic and corporate, in fact and in name, by the name of The President Directors and Company of the Jefferson County Bank; and that by that name they and their successors should be in law, persons capable of suing and being sued, pleading and being impleaded, answering and being answered unto, defending and being defended, in all courts and places whatsoever, and in all manner of actions; nor was there any *provision in that act of incorporation, that the said bank should be established in the county of Jefferson, and that its operations of discount and deposit should be carried on in one of the villages of said county, and not elsewhere; that it should not be lawful for the said bank to issue any notes or bills until an affidavit by the president and cashier of said bank should be made and filed in the (Jerk’s office of said county of Jefferson,'stating that the sum of twelve and a half per cent, upon each share of the capital stock of said bank had been actually paid into said bank in specie; nor was there any provision that the capital stock should not exceed $400,000, and that a share in said bank should be $50; that subscription books should be kept open under the directions of the commissioners, to apportion the stock, and determine a site for the banking house mentioned in said replication, until the whole of the stock of said corporation was subscribed for, and five per cent, on the amount of the same paid into the hands of the commissioners; nor was there any provisions enacting that the said commissioners, or a majority of them, should meet at the house of Isaac Lee, in the village of Watertown, and fix on a site for a banking house for the said Jefferson County Bank, and make an equitable distribution of the stock of said corporation among the subscribers, and receive the sum of five per cent, on the amount of their said sub • scriptions on the first Monday of June, 1816. And the said defendant further saith, that the said bank was not established in the county of Jefferson, and that the operations of said bank hitherto have not been, and are not still carried on in one of the villages of said county of Jef ferson. And the said defendant further saith, that the said bank, to wit, the said plaintiffs, did issue notes and bills before an affidavit by the president and cashier of said bank was filed in the clerk’s office of the county of Jefferson, stating that twelve and a half per cent, on each share of the capital stock of said bank had been actually paid into said bank in specie. And the said defendant further saith, that no affidavit was ever made or filed by the president and cashier of said bank, in pursuance of the true intent and meaning of said act and *that no subscription books for said bank were ever kept open in the manner and form prescribed by the said act, until the whole of the stock of the said corporation was subscribed for. And the said defendant further saith, that the said commissioners, or a majority of them, did not meet at the house of Isaac Lee, in the village of Watertown, on the first Monday of June, A.D. 1816, nor did they then and there on that day fix on a site for the said banking house on a certain piece of land in the town of Adams, in the county of Jefferson ; nor did the said commissioners, on the first day of June A. D. 1816, aforesaid, make an equal distribution of the said stock of the said corporation among the subscribers, nor receive five per cent, on the amount of their subscriptions. And the said defendant further saith, that thirteen directors for said bank were not duly chosen in manner and form prescribed in and by said act, nor have the enactments, requirements and provisions of said act, nor any of them, in anything, been performed, fulfilled or complied with. And the said defendant further saith, that the said plaintiffs have not hitherto, since the first Monday in June, A,D 1316, been and during the time aforesaid were not, and are not now, a body politic or corporate, in fact and in name, by the name of The President, Directors and Company of the Jefferson County Bank; nor have the said plaintiffs done, performed and fulfilled all things on their part and behalf to be done in and by said act. And the said defendant further saith, that the plaintiffs are not the same The President Directors and Company of the Jefferson. County Bank mentioned in an act entitled “ An act to incorporate the Jefferson County Bank,” concluding to the country. On the trial, (June, 1826,) the signature of the defendant on the note, the .demand of payment, and notice of non-payment to the defendant, were duly proved. The plaintiffs then produced and read in evidence the act of incorporation of 1816, by which they became a body politic and corporate, and also the certificate required by said act to be filed, of which the following is a copy, viz.: *“ Jefferson County Bank, ss: Be it remembered, that on the thirty-first day of December, in the year of our Lord one thousand eight hundred and sixteen, personally appeared before me John Cowles, one of the justices of the peace for the said county, Frederick White, president, and James Wood, cashier of the Jefferson County Bank; and each being duly sworn, say that the sum of twelve and a half per centum in specie has been actually paid into the bank on each share of the capital stock of the said bank. Frederick White, James Wood. “Sworn and subscribed to this 31st day of ^ jan j December, 1816, beforeme, John Cowles, jus- > igi7” ’ tice of the peace for the county of Jefferson. ' “ Clerk's Office, \ Jefferson County, > ss. I, H. H. Sherwood, clerk of the [l. s.] * county of Jefferson, and clerk of the court of common pleas, do hereby certify that the foregoing is a true copy of the original declaration and certification now on file in this office. In testimony whereof I have hereunto set my hand and affixed the seal of the said court, this 6th day of November, 1823. H. H. Sherwood.” The above certificate and act of incorporation were produced to show that the plaintiffs were a body politic anu corporate, and had complied with the requisite conditions of the charter to enable them to go into operation as a. bank. The defendant’s counsel object to this affidavit, on the ground that John Cowles was not, as a justice of the peace, authorized to take the affidavit, which objection the court overruled, and the counsel for the defendant excepted. The plaintiff" below here rested. The counsel for the defendant below then moved for a nonsuit, on the ground that the plaintiffs had not proved that they were a corporate body, and that the records of the bank ought to be produced. And the court ruled that the act and certificate thus proved were not sufficient evi dence of the incorporation of the bank. The plaintiffs below then produced a book purporting to contain the records of the bank. The plaintiff’s counsel read in evidence the following extracts from this book: *“ Director’s proceedings continued. December 2d, 1816. Resolved, that James Wood be, and is hereby appointed cashier of the Jefferson County Bank, and that his compensation shall be twelve hundred and fifty dollars per anno, commencing the 16th day of Nov. last. Directors’ room, December 31st, 1816. At a meeting of the directors of the Jefferson County Bank, present Messrs. Wood, &c. (naming 10 directors.) The board being informed of the death of John Paddock, president of said bank, it was on motion resolved that they proceed to the choice of a president by ballot. Whereupon, the votes being taken and counted, it appeared that Frederick White was chosen president of said bank.” The plaintiff’s counsel here again rested his cause; and the counsel for the defendant moved for a nonsuit, on the ground that all the issues in the pleadings were not proved.. The counsel for the plaintiffs contended that every material issue was proved, and the court overruled the motion for a nonsuit. The plaintiff’s counsel then offered to prove all the issues contained in the pleadings, and a compliance on the part of the bank with the terms of its charter, so far as they were put in issue of the pleadings; but the court rejected the evidence as unnecessary, to which the plaintiff s counsel excepted. The plaintiffs also proved, by one of the witnesses, that they were in operation as a bank in 1816 or 1817, and also were in operation as a bank at the time this note was discounted. The defendant’s counsel then, as one ground of defence, introduced the following memorandum or contract, made by and between Heath, the maker of the note, and Orville Hungerford, the cashier of the bank: “ Whereas, The President, Directors & Co. of the Jefferson County Bank hold a note against me for one hundred and fifty dollars with interest, dated May 14th, 1825, and endorsed by James Wood of Brownville, now in case the said President, Directors & Co. will prosecute the said James Wood thereon, and it cannot be collected of him, I hereby agree to give security for the said note, with the costs that *may accrue against Wood, payable in two years from this date; they assigning the judgment against Wood to me. Oct. 5th, 1825. Levi Heath.” This contract or memorandum was produced in evidence by the plaintiffs, in consequence of the defendant’s attorney giving the plaintiffs notice to produce it on the trial, and under the order of the court, and after objecting to the same as inadmissible. Oren Stone, one of the directors of the bank, testified that this contract was made without the knowledge or assent of the directors of the bank; that the subject of the above arrangement, however, came before the board of directors on the first Monday in May, and the first Monday in June ; but they came to no determination, and passed no resolution on the subject, and no entry was made upon the records of the bank relating to it; but that the arrangement came to the knowledge of the directors of the bank on the first Monday in May last, at which time nor since has any thing been done about it. The court decided that the above testimony was not sufficient to show a variation in the terms of the contract between the holders and the maker, and did not amount to a defence df thfe action; and rejected the evidence. The counsel for the defendant excepted. Judgment for the plaintiffs beltiw. J. A. Spencer, for the plaintiff in errtir. There is no breach as to the money count. This is fatal, and not amendable. (1 Chit. Pl. 328, 325, 327; Com. Dig. Pl. (C. 44.) id. (C. 69.) 15 John. 403, 4. 1 Johh Rep. 505. 1 Caines, 347, 349; 583. Lawes on Pl. in Assumpsit, 282.) The court erred in admitting the copy of the affidavit. It was taken before a magistrate who is not authorized to take affidavits to" be read in a court of record. There is no statúte dr common law Authority for a justice to take such an affidavit. The act of incorporation requiting the affidavit, is silent as to the officer. (Laws of N. Y. sess. 1816, p. 280, last proviso to sect. 1.) But it requires the affidavit to be filed with the clerk df the county, where, or in this court, it might be ne'cessary to read it in evidence. *If properly admitted, however, it proves nothing as to the existence of the corporation. The court erred in deciding that the issues taken upon the plaintiff’s replication Were not material. Though the bank might have demurred specially, yet they did not do so; but replied specially, and shall be holden to their replication. (10 John. 156.) The books of the bank did not prove the facts replied, even if admissible; but they were not identified as the botiks of the bank. The testimony of witnésseS at least should have been produced to identify and authenticate the books. But the time tif paying the note was extended in favor of the maker. This discharged the endorser. (3 Camp. 281, 362. 16 John. 72. Chit. on Bills, Georgetown ed. 208, 299, 300. Doug. 247. 3 Mod. 87. 2 John. Ch. Rep. 560. 2 B. & P. 61. 16 John. 73. 12 John. 300. Com. on Contr. 244. 2 Ld. Raym. 928. Com. Rep. 138. Holt’s Rep. 464.) M. Sterling, contra. The defect in the declaration is cured - by the verdict. (2 Archb. Pr. 232, 239, and the authorities there cited.) The plea of nul tiel corporation, is bad on special demurrer, (19 John. 300;) but I admit we must abide our replication, and prove under it sufficient to show that the plaintiffs below were a corporation. We must do the same thing under our replication, which would be required' on the general issue: but we need not go further. The affidavit was properly taken. The act not prescribing the person before whom it shall be taken, leaves it open for any one to administer the oath who can take an affidavit for any purpose. And after that, showing by the books or otherwise that the institution was in full operation with its requisite officers, is sufficient to establish its existence. The books were not objected to below, on the ground that they were not identified as the corporate books; and we proved every thing required by the charter as a condition precedent to becoming a corporation. Indeed, it is doubtful whether any proof was necessary beyond the mere production of the act in the printed statute book; and we think it will be found this court so decided in The Bank of Chenango v. Noyes. *As to the objection that the bank gave time to the maker of this note, we agree that in general the holder discharges the endorser by tampering with the maker to the prejudice of the former. Otherwise he cannot complain. The rule is, that the holder shall not give time to the prejudice of the endorser. (2 John. Ch. Rep. 560, and the cases there cited. 6 Ves. 734. 10 East, 40.) What are the rights of an endorser? On notice, it is his duty to pay the note; and on doing so, he has a right to recover over of the maker. If the bank have done any thing to defeat his remedy over, it is a defence; otherwise not. The endorser may demand that the note be prosecuted; and if the holder refuse, this may operate as a discharge. But in any arrangement, if the endorser’s rights are all reserved, he cannot complain.' The only question is, whether the bank have so varied or modified the note as to infringe on the endorser’s rights. This agreement is neither a technical release, nor a consent not to sue the maker; nor is there any evidence that the bank had not prosecuted this very maker to execution, and had a return of nulla bona against him. If the agreement were express for delay, it would be void; for there is no consideration mentioned in it. The maker could not have availed himself of it as a defence. It is not signed or executed either by the bank or cashier; and is in truth, nothing but a proposition to the bank through their cashier. Spencer, in reply, said the consideration of the agreement was security for payment of costs, by the maker, of the suit against the endorser, which, before the agreement, the maker was not bound to pay. See 2 Cowen & Hill’s notes to Phil. Ev. 263. Commonwealth v. Woelper, 3 Sergt & Be 29. Grays v. Tump. Go. 4 Ran. 578. The State v. Buchanan, 1 Wright, 233. [MAJORITY — Curia, per Savage, Ch. J.] Curia, per Savage, Ch. J. (after stating the case.) It is contended that judgment should be reversed, because, 1. There are two counts in the declaration, and the conclusion refers to but one count. This seems to be the fact; but the mistake is merely clerical, and an amendment would be granted; so that the judgment should not be reversed on that ground. 2. It is said that the affidavit of the president and cashier, made before a justice of the peace, should' not have been *admitted; as affidavits thus taken cannot be read in this court. The statute does not require the affidavit to be made before such an officer. It is a sufficient compliance with the act if made before any officer authorized to administer an oath. 3. It is urged that the plaintiffs below should have been required to prove the facts stated in the replication to the defendant’s second plea. To this, the plaintiffs answer, that the plea itself of nul tiel corporation is bad, and any issues joined upon it aie immaterial; and that the plaintiff is bound to prove no more than he would upon the general issue. So the court below decided, and correctly. It is well setttled, that a corporation plaintiff must, upon a plea of the general issue, prove the existence of the corporation. The plea of nul tiel corporation is bad, because it amounts to the general issues' What did the plaintiffs prove ? They show the act of incorporation, by which such persons as should become stockholders in a certain mode pointed out by the act, should be a -corporation. The act did not make any set. of men a corporation ipso facto. There was something to be done. Books of subscription were to be opened ; stock was to -be subscribed for; that stock was to be distributed by the commisioners; and those persons to whom the stock should be thus distributed become stockholders. The stockholders then were to choose directors, and they a president and cashier. The books of the bank were produced showing the election of the president and cashier. No notes were to be issued till the officers should file an affidavit, &c. That affidavit was made and filed by White and Wood, describing themselves as president and cashier. The production of the books showing the election of the officers was, prima facie, sufficient to show that the previous requisition of the statute had been complied with, and that the corporation then had an existence; and the proof of the filing of the affidavit shows that the bank had authority to issue bills and discount notes. Enough was proved, therefore, to entitle the .plaintiffs to recover upon their own showing. It was said at the bar, that this court had decided, in the case of the Chenango Bank v. Noyes, that all which *was necessary to prove the corporation, was to produce the charter in the printed statute book. The question there presented, as it was understood by the court, was,- whether the printed statute book, or an exemplificatian from the secretary of state, should be produced to prove the charter ; and we decided that the statute, as printed by the printer to the state, was sufficient. The next question is, whether the defendant was discharged as endorser by virtue of the arrangement between the cashier and the. maker; According to the written agreement, the maker of the note stipulates, that if the plaintiffs will prosecute the endorser, and the debt cannot be collected, the maker will give security for the debt, payable in two years, on his receiving an assignment of the judgment. In this court, the maker is considered the principal debt- or, and the endorser as a surety; and the surety is bound by the terms of his contract. If the creditor, by agreement with the principal debtor, without the consent of the surety, varies these terms by enlarging the time of performance, the surety is discharged; for he is injured, and his risk is increased. (16 John. 72, 3.) Lord Eldon, in English v. Derby, (2 B. & P. 62,) says, as long as the holder is passive, all his remedies remain ; and if any of the parties be discharged by the act of law, the holder is not prejudiced as to the others. But if a holder enter into an agreement with a prior endorser in the morning, not to sue him for a certain period of time, and then oblige a subsequent endorsee in the evening to pay the debt, the latter must immediately resort to the very person for payment, to whom the holder has pledged his faith that he shall not be sued. Chancellor Kent, (2 John. Ch. R. 560,) gives the reason why the terms of the contract shall not be varied without the consent of the surety. He says, the surety is entitled to pay the debt when it becomes due ; or, he may call on- the creditor, by the aid of this court, (chancery,) to enforce his demand against the principal debtor. On paying the debt, he is entitled to the creditor’s place by substitution ; and if the creditor, by agreement with the principal debtor, without the surety’s consent has disabled himself from suing, when he would otherwise have been entitled *to sue under the original contract, or has deprived the surety, on his paying the debt, from having immediate recourse to his principal, the contract is varied to his prejudice, and he is consequently discharged. This is the true principle to be extracted from the cases. Suppose then, the bank had authorized the cashier to take the writing which he did; does it contain any agreement not to sue Heath ? Certainly not, until the bank shall have failed to collect the demand from the endorser. It is strange, indeed, that the creditor should agree with the debtor to prosecute the surety first; but I do not see that the endorser is deprived of his remedy over against the debtor. He may pay the debt, and prosecute the maker immediately. There is no stipulation that the bank shall not prosecute the maker at the same time with the endorser; and time is not to be given unless the endorser is unable to pay. This agreement, therefore, does not prejudice the endorser. But it does not appear to have been authorized by the directors and I much doubt the power of the cashier to make such an agreement, without special authority. Judgment affirmed. Williams v. The Bank of Michigan, 7 Wen. 539. When to a plea of nul tiel corporation, replication is made of the title of the act of incorporation (R. S.), such title must he set out with entire accuracy, as a variance in the statement would he good cause for demurrer if the act is a public one. Union Bank v. Dewey, 1 Sanf. S. C. Rep. 509. See also Utica Ins. Co. v. Tillman, 1 Wen. 554. The Same v. Cadwell, 3 id. 296. See Catskill Bank v. Messenger, ante, 37, 38, n. 1. Sprigg v. The Mount Pleasant Bank, 14 Peters 257. But to discharge the surety the agreement must be binding in l'aw, and founded on a sufficient consideration. Per Bronson, J., in Villas v. Jones, 1 Comst. 286. Bank United States v. Hatch, 6 Peters, 250. Creath's Adm'r. v. Sims, 5. How. U. S. Rep. 192. Bangs v. Strong, 7 Hill, 250. Mere voluntary indulgence to the principal debtor by the plaintiff in an execution, will not release the surety. id. Lenox v. Pruth, 3 Wheat. 520. United States v. Nichols, 12 id. 505. Schroppel v. Shaw, 5 Barb. S. C. Rep. 580. See also per Story, J. in M’Lemore v. Powell, 12 Wheat 554: 6 Cor. Rep. 634, 637. New York State Bank v. Fletcher, 5 Wen. 85. Bonney v. Seeley, 2 id. 481. Edward v. Traver, 6 Page, 521. Cuyler v. Ensworth, id. 32. Wilkes v. Harper, 2 Barb. Ch. Rep. 338. Matthews v. Aiken, 1 Comst. 595. Huffman v. Hulbert, 13 Wen. 375. Sprigg v. The Bank of Mount Pleasant, 14 Peters, 201. Gahn v. Niemcewiez’s ex’rs. 11 Wen. 312. Schroeppel v. Shaw, 5 Barb. S. C. Rep. 580. See further Dig. N. Y. Rep. by Hogan, title, Principal and Surety; also Am. Ch. Dg. by Waterman; title. same