Smith v. State ex rel. County Commissioners

Robinson, J., delivered the opinion of the Court. This is a motion to quash an execution issued on a judgment recovered by the appellee against the appellants and Mary Payne, executrix of B. N. Payne, sureties on the bond of Nelson Cooper, one of the tax collectors of Baltimore County. At the request of one of the heirs-at-law of Payne a statement was made, showing the ratable proportion due by each defendant in the judgment, and, upon the payment of Payne’s proportion as thus ascertained, the appellee directed the clerk to enter the judgment satisfied as against his executrix. The appellants contend that, being co-sureties, the entry of satisfaction as against the executrix of Payne discharges them from all liability on account of said judgment.

Now, it is true that any valid contract or agreement between the creditor and the principal, or between the creditor and a surety, without the concurrence of co-sureties, whereby the latter are subjected to an increased risk, operates as a discharge of such sureties. And hence the ⁶¹⁹ release by a creditor of the principal, releases also the surety, because the latter is entitled, upon the payment of the debt, to be subrogated to all the rights and remedies of the creditor, and the creditor cannot, by his own act, prejudice or in any manner impair these rights without forfeiting his remedy against the surety. It seems also to be well settled that the release of one or more sureties without the assent of the co-sureties will operate at law to discharge the latter, because it is a cardinal principle of suretyship that the surety has the right to stand by the very terms of the contract, and the creditor will not he permitted to change or alter the contract without concurrence of all the parties to it. In equity, however, the rule is different, and the release of one or more sureties will not be construed to have this effect, unless it subjects the co-sureties to an increased risk or liability.

Accordingly, it has been held that where the creditor releases one