Hunter v. Clark

• Decision Date: 31 October 1866
• Citation: 28 Tex. 159
• Parties: SHORES T. HUNTER v. JAMES H. CLARK.
• Court: Texas Supreme Court

28 Tex. 159

SHORES T. HUNTER

v.JAMES H. CLARK.

Supreme Court of Texas.

October, 1866.

By former adjudications of this court it is settled, that the giving of time by a creditor to a principal debtor, without a binding contract so to do, does not release the surety; neither does mere forbearance or indulgence, nor a failure by the creditor to prosecute his demand, with diligence, have that effect. Pas. Dig. art. 4785, note 1070; 8 Tex. 66;11 Tex. 694;14 Tex. 600.

The surety has remedies in his own hands against such conduct of the creditor, by having the debt paid, or by requiring, in a proper mode, greater diligence on the part of the creditor.

ERROR from Grayson. The case was tried before Hon. NAT. M. BURFORD, one of the district judges.

This was a bill for an injunction filed by Hunter against Clark. The complainant alleged, in substance, that Clark had recovered a judgment against one Shannon and the complainant, upon a promissory note for some $266, on which complainant, as Clark knew, was but a surety for Shannon. That execution issued upon such judgment, and at and long after its issuance said Shannon, the principal debtor, had ample means, in goods, chattels, and estate, for a levy and satisfaction of the execution. That by positive instructions the said Clark forbade and prevented the sheriff from levying the execution on the property of Shannon. That the sheriff often urged Clark to permit him to make a levy on the goods of the said Shannon, but that Clark refused his consent, and requested the sheriff not to levy without his instructions. But that afterwards, on the--day of--, 1860, the said Shannon having then become insolvent, the said Clark had caused the execution to be levied upon property of this complainant, who alleges, that, before Shannon's insolvency, Clark “could have easily made his debt and satisfied his execution; but that he carelessly and negligently, and petitioner believes with a fraudulent and wrongful intent, caused said execution to be held up until the insolvency of the said Sevier Shannon, and then had the same levied upon petitioner's property, for the purpose of annoying and injuring him.” That, without the interposition of the court, petitioner will be compelled to discharge the execution out of his own means, and be without remedy, inasmuch as Shannon is hopelessly insolvent. Prayer for injunction against Clark, the sheriff, etc.

A preliminary injunction was awarded by the judge at chambers, and issued accordingly.

At the spring term, 1860, the defendant demurred generally to the petition, and also specially to so much thereof as charged him with carelessness, negligence, and (as petitioner believed) with a fraudulent and wrongful intent, “because it is vague, uncertain, and indefinite, and the act complained of does not imply fraud, and that the charge is not made directly and positively.” The defendant also moved to dissolve the injunction, because there was no equity in the bill. The court sustained the demurrer, dissolved the injunction, and rendered judgment against the complainant for the amount of the original judgment, with interest and damages for delay, under the 154th section of the statute to regulate proceedings in the district court. Pas. Dig. art. 3935, note 927.

H. G. Hendricks, for plaintiff in error. Clark knowing that Hunter had signed the note as surety, equity required him to act with due diligence in collecting the debt; and if by his orders, directions, interference, or fraudulent conduct he prevented the debt from being made, when the same might have been made, equity will compel him to suffer the loss. “The creditor is required to act with regard to the surety so as to relieve him from the liability which he has incurred, by receiving the debt from the principal whenever it is in his power. This is upon the plainest rule of justice. If, therefore, the principal die, leaving an estate, and the creditor neglect to demand payment out of the same, when ...