ply the place of it altogether. The paper, though not under seal, was certainly thought to have a peculiar effect, in consequence of its being, as was said, not a parol but a written declaration, the accuracy of which I may, with a sincere respect for the opinions of our learned and able predecessors, be permitted to controvert. In delivering the opinion of the judges in Rann v. Hughes, 7 T. R. 350, note, it is said by the Chief Baron Skinner, that "all contracts are, by the laws of England, distinguished into agreements by specialty and agreements by parol; nor is there," he adds, "any such third class, as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved." This case is considered as having settled the law, being, as it was, determined by the unanimous opinion of all the judges in the house of lords, where the authority of Mr. Justice Wilmot's celebrated argument in Pillans and Rose v. Van Mierop, 3 Burr. 1663, if not of the case itself, was much and perhaps justly shaken.

In Wentz v. Dehaven, the agreement, though in writing, was nevertheless parol, and the delivery of the written evidence of it could no more dispense with the necessity of a consideration than could the delivery of a promissory note dispense with it between the original parties by operating as a gift of the money; for surely the form of the transaction by which a person is to part with his property, whether by a creation of a new debt or the extinction of an old one, can not be thought to make a difference. Neither could it change the executory nature of the agreement, as being a symbolical delivery of the mortgage or bond accompanying it, which ought itself, as being the proper muniment of the title, to have been delivered up or canceled: Richards v. Lyms, 2 Eq. Cas. Abr. 617. To deliver to the donee a memorandum of the gratuitous transfer of a bond retained by the donor would no more pass the property in it than would the gift of any other chattel in the same circumstances; and a gift of the debt to the obligor must certainly depend on the same principles. Whatever, then, may be the facility of proof, or certainty of intent, afforded by a written declaration, it can, if unsealed, have no peculiar or greater effect than if it were merely verbal. It is proper to repeat, however, that independent of aid borrowed from the writing, the judgment in Wentz v. Dehaven stands clear of doubt or difficulty. In the case before us, there was not even a written declaration; and it was error to

charge that an intent to release Boyd would release Wilson also; there was no pretext to say that either was released.

But there was in truth no evidence of an intent to release Boyd, or even to favor him further than to postpone a call on him for satisfaction while there was a prospect of obtaining it elsewhere, which might well be done without jeoparding the right to have recourse to the other defendants; consequently, there was nothing to submit. Babbet had used the word "release" in his request to the creditor, but probably in no definite sense. The creditor never used it at all; and we must recur to his acts for his meaning in saying "he thought he had got that matter fixed." He said, not what he then did or intended to do, but what he had done-withdrawn the levy from Boyd's goods. But, it is said, the jury were to judge of that; and for this is cited Sidwell v. Evans, 1 Penn. 383. There, however, no more was determined than that a judge is not bound to attribute a legal effect to words spoken by a witness in a question of fact; which is certainly a distinct thing from his right to submit to the jury a question which does not arise out of the evidence. To leave to them the finding of a fact without the color of proof, is certainly error.

We come then to the revocation of the levy, of which there was undoubted evidence. Seizing the goods of the debtor in execution is ipso facto satisfaction, as was held in Hunt v. Breading, 12 Serg. & R. 37 [14 Am. Dec. 665]; but the immediate parties may choose to consider it otherwise, as was held in The Commonwealth v. Miller's Adm'r, 8 Serg. & R. 457. By the removal of the seizure, then, the levy ceased to be satisfaction as to Boyd; and why not as to Wilson? Where the creditor suffers the means of satisfaction to slip from his hands into those of the principal debtor, equity releases the surety. But Wilson and Boyd were not in the relation of principal and surety, being as between themselves both principals; and the creditor was not bound to pursue his seizure of the goods of either for the benefit of the other. In contemplation of the law, all the defendants make but one party, and where the equity of a surety does not intervene, the plaintiff may treat them alike or take satisfaction from any of them at his pleasure. In every point of view, then, this part of the case was put erroneously to the jury.

HUSTON, J., dissented.

ROGERS, J., took no part, having been of counsel in the cause. Judgment reversed, and a venire de novo awarded.

Cited, upon the necessity of a consideration to support a parol contract, in Kennedy's Ex'r v. Ware, 1 Pa. st. 450; Ackla v. Ackla, 6 Id. 230; and that in this respect there is no difference between a verbal contract and an unsealed written contract, in In re Campbell's Estate, 7 Pa. St. 101; and in Bartol v. Forker, 17 Id. 316, where the principle is applied to an agreement to take a less sum than the debt.

Further cited, on the point that a release of the principal releases a surety, in Schock v. Miller, 10 Pa. St. 403. With respect to the discharge of a surety by the acts of the creditor, see United States v. Simpson, post, and note. The rule laid down in Whitehill v. Wilson, in regard to submitting to the jury questions of fact, upon which no evidence has been given, is followed in Child v. McKean, 2 Miles, 196.

UNITED STATES v. SIMPSON.

[3 PENROSE & WATTS, 437.]

MERE FORBEARANCE, HOWEVER PREJUDICIAL TO THE SURETY, will not discharge him.

LOSS FROM INDULGENCE PURELY PERMISSIVE, will not discharge a surety; as the surety ought to have warned the creditor to proceed.

IN SUCH CASE ACTUAL DETRIMENT is not the criterion or a material ingre dient.

WHERE THE CREDITOR HAS DISABLED HIMSELF to pursue the principal, the aurety is ipso facto discharged.

HANDWRITING MAY BE PROVED by one who had become familiar with it through a long correspondence, though he had not seen the person write. SCIRE FACIAS on a judgment recovered against Patton, and Simpson, his surety. Simpson filed a plea in abatement, claiming to be released by reason of indulgence given to Patton. The nature of this indulgence appears from the opinion. At the trial, letters of the first auditor and acting commissioner of the revenue were given in evidence, and the handwriting proved by one who had corresponded with the auditor a great deal but who had not seen him write. This evidence was objected to. Verdict for the defendant.

A. P. Wilson and Bell, for the plaintiff in error. Handwriting can be proved only by one who has seen the person write: Vickray v. Kelly, 14 Serg. & R. 372; Bank v. Jacobs, 1 Penn. 181. Mere indulgence to a principal will not discharge a surety: Cope v. Smith, 8 Serg. & R. 112; Gardner v. Ferree, 15 Id. 30 [16 Am. Dec. 513]; Commonwealth v. Shryock, Id. 70.

Blanchard and Porter, contra. The contract with the principal was changed, and it is immaterial whether the surety was damaged or not; he was immediately released: Bogart v. Nevins, 6 Serg. & R. 371; Baldwin v. King, 5 Johns. Ch. 561; Barry v.

Mandell, 10 Johns. 595; Whart. Dig. 713, No. 25, tit. Surety; Milliken v. Brown, 1 Rawle, 398. 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 Binn. 523 [5 Am. Dec. 383]; Commonwealth v. Shryock, 15 Serg. & R. 71; People v. Janson, 7 Johns. 340.

By Court, GIBSON, C. J. The rule is well settled that mere forbearance, however prejudicial to the surety, will not discharge him. It is his peculiar business to judge of the danger to be apprehended from delay, and to quicken the creditor, where the occasion requires it, in the way known to the law; in default of which the loss incurred is necessarily to be attributed to his own supineness. Was there anything beside forbearance here? A judgment is entered upon certain revenue bonds in 1819, on which there is no proceeding, but a stillborn fieri facias till 1826, when the present scire facias is brought, and a general appearance entered for both defendants, one of whom (the principal) confesses judgment in person, on the fourteenth of August, in the same year. Previous to this he has procured the assent of government to an arrangement for payment of installments, and on the thirty-first of March, 1825, the fifth auditor of the treasury, acting as commissioner of the revenue, and being further importuned for indulgence, instructs the attorney of the United States to admit of no change in the terms, but is induced on the seventeenth of February following, to protract the time for payment of the first installment; and this is the ground of the supposed equity. Now though an extension of the credit beyond the time mentioned in the contract, will undoubtedly discharge the surety, it is well established that a consent to forbear which does not tie up the creditor's hands, will be attended with no such consequence, being in effect nothing more than forbearance in fact; and what was then to preclude the United States from proceeding at any moment here? The government made no agreement with any one, having merely acceded to an overture for indulgence on the score of humanity. Because the indulgence accorded was purely gratuitous; and even were the instructions of the auditor evidence of a contract, it would be without consideration. It is said the confession of judgment by the principal was the consideration. That, however, was not stipulated as a condition, and it did not take place till six months afterwards. We have then a bare case of forbearance, at the instance of the principal, which in Todd v. Blair, decided by this

court at Chambersburg, in 1827, was held to give the surety no equity. That case has not been reported; but the facts were that Todd was the bail of Irwin in a recognizance to obtain the stay of execution allowed by law on a judgment obtained by Blair; who, to an application of Irwin for terms, answered thus: "I have spoken to Mr. Lyon (the attorney) not to urge the payment of the money now due me on the county docket by you and Mr. Todd, before the first of September next. I have money to pay myself at that time, and can not give any further indulgence. I mention this to you, as you spoke to me a few days ago to wait ten days or two weeks on you, and that you would make the money up without any more cost, which is certainly my wish." And this being by sufferance, and consequently nudum pactum, was held not to release the bail.

Such, then, being the law of the case, it was error to submit to the jury, as an inquiry material to the merits, whether the jury had been prejudiced by the actual or supposed expiration of the creditor's lien on the land of the principal, or by any other consequence of the creditor's naked quiescence. In the Commissioners of Berks v. Ross, 3 Binn. 520 [5 Am. Dec. 383], the surety was not discharged, though the creditor had waived his demand of special bail, in consequence of which the principal was enabled to flee to another state. That a loss from indulgence, which is purely permissive, will discharge a surety, is unsupported by authority, and in contradiction of the most obvious principles of justice, such a loss being fairly attributable to the surety's own negligence in omitting to warn the creditor to proceed, without which he may not know that a loss is impending. Actual detriment is not the criterion or a material ingredient. If the creditor has disabled himself, the surety is ipso facto discharged; if he has not, no eventual loss from mere delay will produce that effect. In the case, therefore, as it appeared on the evidence, there was nothing to submit, and where the pretensions of a surety are put in contrast to a claim of the public, for whom no sympathy is ever felt, it is indispensable to justice that the jury be held strictly to the law and the evidence.

The objection to the admission of the letters is not sustained. The signature of the auditor was proved by one who had become familiar with it in a long correspondence with him; in addition to which the letters had been produced by the attorney of the United States, to whom they were addressed, and we see no reason to doubt of the propriety of their admission.

Judgment reversed and a venire de novo awarded.