Page:Federal Reporter, 1st Series, Volume 6.djvu/823

 VAET V. NORTON. 811 �'the latter is discharged, on the ground that he had become a surety, atid was entitled to the beuefit of a surety's rights. Smith V. Sheldon, 35 Mich. 42. �The same viewwas held in Millerd v. Thurn, 56 N. Y. 402. See cases cited in the opinions. �But in Swire v. Redman, Law E. 1 Q. B. 536, it was held quite the other way. By it the previous case of Oakley v. Pasheller, 4 Cl. & Fin. 207, decided in the house of lords, and cited by Judge Cooley in Smith v. Sheldon, and by defendants' counsel in this case, to support the rule that an agreement to forbear discharges such retired partner on the ground that he is a surety, is quite explained away, and denied to be an authority for such view. I have not at hand the case of Oak- ley y. Pasheller. �It seems to me that when Norton agreed witb Lee and King to pay the note there was created betweeu them the rela- tion of principal debtor and surety, by virtue of which Lee and King became entitled to indemnity from Norton, if pay- ment ebould be made by them on account of bis defaalt, and that they had the right to pay at any time after the debt matured, and bring suit at once against Norton for indem- nity. The relation of principal and surety is fixed by the debtorfl without any action of the crediter. They have a right to arrange such relation between themselves at any time. No change is tbereby produced on the contract rights of the cred- iter ; ail the makers continue jointly and severally liable as when the note was signed. But when the crediter has notice that, by an arrangement between the makers, one or more of them has become entitled to the rights of a surety, he is as much bound, upon principles of justice, to regard these rights, and to do no act to abridge them, as if such makers had orig- inally signed as sureties. In either case the discharge of the surety is always brought about by the act of the crediter, and not by a change of his contract rights under the note. In reference to accommodation makers, indorsers, etc., the law is too well settled to allow of discussion, that a valid agree- ment by the creditor to extend the day of payment without their consent discharges them. The reason upon which such ��� �