United States v. Simpson

A loss from indulgence by a creditqr to a principal, which is purely permissive, will not dischai-ge a surety. If the preeftor has disabled himself to proceed, the surety is ipso facto discharged: if he has not, no eventual loss from mere delay, will produce that effect. Hand-writing may be proved by one who has become familiar with it in a long correspondence with the writer, although he may never have seen him write,

Error to Huntingdon county. In 1819 the United States obtained a judgment against John Patton and William Simpson his surety: — in Í822 a fi.fa. was issued upon it, which was not given to the sheriff, by order of the plaintiff’s attorney: there was no further proceeding until 1826, when a scire facias was issued against both defendants, for whom there was an appearance and plea of payment. Subsequently, in the same year, Patton confessed judgment; and issue was joined on the plea of payment, with Simpson. Upon the trial of this issue, the defendant gave in evidence the record of several judgments that had been obtained against Patton, between the time of tl)e rendition qf the judgment of the United States, and its revival in 1S26.; and which became thereby a lien upon his real estate, tq the exclusion of the United States’ judgment. There were also given in evidence t]ie following letters of S. Plesenlon, “Fifth Auditor and acting Commissioner of the Revenue,” tp James M’Dowell, Esq. the Attorney of the United Stales, having the charge of this judgment. Treasury Department, Fifth Auditor's Office, March 31, 1825. Sis. — I have received ypur letter pf the f 4th instant. As the indulgence already extended to Mr. Patton has been very liberal, J cannot consent tp any change in the terms stipulated in my letter of the 22nd ultimo, fqr the liquidation of the debt dup by him to the United States, viz. tha\ on the first pf November next, he shall pay three hundred dollars, with the interest that will be due on his bond qp to that date, four hundred eighteen dpllars, eighty-eight cents, and one hundred sixty-nine dollars thirty-four cents, for the addition of ten per cent, accruing on the amount of duties not bondpd, making together the sum of eight hundred and eighty eight-dollars, twenty-seven cents to b,e deposited, that day by him, and anqually thereafter an the first day of November, pgy three hundred dollars, with the interest due up tp that date. Treasury Department, Fifth Auditor's Office, February 17, 1826. Sir, — I have just received a joint letter of this date from the Hon. John Findlay and John Brown, requesting, for certain con-, siderations therein stated, a fqrther indulgence until the first of June next, to pay the first instalment of the debt due by him to the U. States, which vfas to have, been paid on the first of November, last. You will please to give this indulgence to Mr. Patton, and inform him it is given, in the full confidence, that he will at the expiration of the time be prompt in making the payment. The admission of these letters in evidence was objected to, on the ground that neither the official character, nor hand-writing of S. Plesenton was. proved-• A witness was then sworn, who testified that he had done business for the United States, and had corresponded with S. Plesenton the Fifth Auditor of the Treasury, had remitted money to him and received his receipts; had never seen him writing his name, but had no doubt but that the signatures were his. The court over-ruled the objections to the evidence, and sealed s, bill of exceptions at the request of the plaintiff. The negligence of the plaintiff, in suffering tfielien pf these judgments to be lost as against the estate of Patton the principal, and the indulgence given to him till he became insolvent, were relied upon by the defendant, in support of the issue, on his part. In answer to several points put by plaintiff’s counsel, the court instructed the jury in substance, that if they believed that Simpson was prejudiced by the negligence of the plaintiff and indulgence given to Patton, they should find for the defendant; and the jury did so find. Contended; that hand-writing can be proved only by one who has seen the person writing. Vickray v. S. Kelly, 14 Serg. fy Raiole, 372. Bank v. Jacobs, 1 Penn. Rep. 181. That the United Slates is not subject to any rule of law which is based upon the negligence of a party, and that no negligence or expiration of lien can be applied to their prejudice:- That there Was nothing in the letters of S. Plesenton Which would bind the United States, so as its prevent them from proceeding upon their judgment at any time, when they might have been requested so to’do by Simpson the surety. Mere indulgence to the principal will not discharge a surety, unless it be in disobedience of an express request of the surety. On this point were cited Cope v. Smith, S Serg. 4* Raiole, 112. Gardner v. Berree, 15 Serg. fy Rawle, SO. Commonwealth v. Shryock, ibid. 70. The letters of S. Plesenton changed the nature of the contract; and if so, the court will not stop to enquire, whether the surety Was injured thereby or not. Bogart v. Nevins, 6 Serg. <§• Rawle, 371. Baldwin v. King, 5 Johns. Chan. 561. Barry v. Man-dell, 10 Johns. Rep. 595. Whart. Dig. 713, No. 25, Title Surety. Milliken v. Brown, 1 Rawle, 398. If the faith of the United States, as pledged by the letters given in evidence, was kept, the surety was ipso facto discharged. -There shall be no negotiation between the Creditor and the principal, which results in the injury of the surety, unless he be^discharged. Commissioners v. Ross, 3 Bin. 523. Commonwealth v. Shryock, 15 Serg. fy Rawle, 71 People v. Janson, 7 John Rep. 340.