Page:Federal Reporter, 1st Series, Volume 10.djvu/658

 646 FEDEEAl^ BEPOBTEB. �Aside from the statute providing that the goods "shall be deemed abandoned to the governmeat and sold" after three years, (section 2971,) it is manifest that the delay and postponement of the sale constitute no ground of defence; for, apart from this statute, the case would be simply that of delay by a crediter in enforcing his remedy upon collateral securities, and this, it is well settled, is no defence to a surety, since he bas had, daring all the period of delay, the legal right, if he choose, to pay the debt, and take and enforce the securities himself. Unless, therefore, he bas previously intervened, and given distinct notice requiring an immediate resort to such se- curities, he bas no cause of complaint; if he bas done that, and any subsequent loss arises throug'i neglect to prooeed, that will be a defence ^ro tanto only to the entent of the damages proved. King v. Baldwin, 2 Johns. Gh. 559; Schroeppell v. Shaw, 3 Comst. 457; Clark V. Sickler, 64 N. Y. 231; liant v. Ptirdy, 82 N. Y. 486; Black River Bank v. Page, 44 N. Y. 453; Remsen v. Beekman, 25 N. Y. 552. In this case there was no proof of any notice or request to sell, nor of any special damage arising from the delay. �The defence rests wholly, therefore, upon the provision of the stat- ute of 1861 which declares that after three years the goods, if not withdrawn, "shall be deemed abandoned to the government, and shall be sold under such regulations as the secretary of the treasury shall prescribe." In this case the goods were not "sold" in accordance with the "regulations prescribed," nor until several years afterwards; and one of the causes of delay was a postponement speeially ordered by the secretary of the treasury. �The questions involved are whether this statute, and the regulations under it, formed by implication of law any part of this bond ; and if 80, whether the postponement of the sale by special order of the sec- retary of the treasury beyond the time provided by the statute and regulations involved any such alteration of tho implied terms of the contract as to discharge the surety. For it is only in consequence of some alteration in the express or implied terms of the contract, in an essential particular, that the surety can claim to be discharged ; and if the postponement of the sale in this case had no bearing upon the extent or duration of the surety's risk, and no other resuit than mere delay in realizing upon the goods held as security for the duties and charges, then the postponement would not constitute any defence to the surety, any more than it would in the absence of any statute on the subjeot. ��� �