that it is a fraud on the principal after having given him time to enforce the obligation immediately against the surety who will then come back upon the principal.83 This reasoning, however, is even more inadequate in regard to giving time than in regard to giving an absolute release. Here, as in the case of the release, the facts by no means always justify the construction of the creditor's agreement that neither directly or indirectly will the creditor do anything to compel the principal debtor to pay either himself or the surety the amount of the debt. But even if the facts did justify such a construction of the agreement, there is no reason why the surety should be totally discharged in order to save the principal 83 Thus Lord Eldon said in English v. Darley, 2 Bos. & P. 61, "If a holder enter into an agreement with a prior indorser in the morning not to sue him for a certain period of time, and then oblige a subsequent indorser in the evening to pay the debt, the latter must immediately resort to the very person for payment to whom the holder has pledged his faith that he shall not be sued." In Polak v. Everett, 1 Q. B. D. 669, Blackburn, J., said: "It has been established for a very long time, beginning with Rees v. Berrington, 2 Ves. 540, to the present day, without a single case going to the contrary, that on the principles of equity a surety is discharged when the creditor, without his assent, gives time to the principal debtor, because by so doing he deprives the surety of part of the right he would have had from the mere fact of entering into the suretyship, namely, to use the name of the creditor to sue the principal debtor; and if this right be suspended for a day or an hour, not injuring the surety to the value of one farthing, and even positively benefiting him, nevertheless, by the principles of equity, it is established that this discharges the surety altogether. The reason given for this, as stated in Samuell v. Howarth, by Lord Eldon, is because the creditor, by so giving time to the principal, has put it out of the power of the surety to consider whether he will have recourse to his remedy against the principal or not, and because he in fact cannot have the same remedy against the principal as he would have had under the original contract. And he adds: "The creditor has no right, it is against the faith of his contract, to give time to the principal, even though manifestly for the benefit of the surety, without the consent of the surety.' The principle being, as I understand it, that as it is very undesirable that there should be any dispute or controversy about whether it is for his benefit or not, there shall be the broad principle, that if the creditor does intentionally violate any rights the surety had when he entered into the suretyship, even though the damage be nominal only, he shall forfeit the whole remedy. Whether that was a good or a just principle originally, is a matter which is far too late to think about now. I must own I have had considerable doubts about the justice of that principle, but from the time of Rees . Berrington, 2 Ves. 540, it has been undisputed law, and nothing but the legislature can interfere to alter it." from the possibility of being sued before the agreed time. If the principal himself were sued by the creditor in violation of his agreement the principal would not get a complete discharge from the debt. His proper relief would be something in the nature of a temporary injunction against the creditor's action.84 If the discharge of the surety is due to tenderness for the principal debtor's rights, there is no propriety in giving the surety a larger defence than that which the principal himself would have. The only sound ground which the absolute discharge of the surety can be rested is that he himself has been injured. The possible injury to him is twofold, (1) though the direct obligations of the principal to him, to exonerate or indemnify him, has not been impaired for no transaction in which the surety does not join can affect them, his right to enforce by way of subrogation the creditor's right against the principal must suffer when the creditor limits his own right. (2) The risk of the surety is increased. Before the release there was a chance that the principal would fulfil his duty to the surety by paying before the surety was called upon. This chance has been diminished. § 1226. Certainty of time for which extension is promised. It is customarily said that though a binding extension of time given the principal for any definite period, however short, will discharge the surety, this consequence will not follow if no definite time of extension or forbearance is agreed upon.85 Such statements are based on the assumption that unless a definite time is agreed upon, the creditor may at once proceed against the principal, and, therefore, that the 84 See infra, § 1844. 85 King v. Haynes, 35 Ark. 463; Clark v. Gerstley, 26 D. C. App. Cas. 205, affd. in 204 U. S. 504, 51 L. Ed. 589; Bunn v. Commercial Bank, 98 Ga. 647, 26 S. E. 63; Conn v. Simpson Grocery Co. (Ga. App.), 94 S. E. 260; Duckett v. Martin (Ga. App.), 99 S. E. 151; Field v. Brokaw, 148 Ill. 654, 37 N. E. 80; English v. Landon, 181 Ill. 614, 54 N. E. 911; Beach v. Zimmer man, 106 Ind. 495, 7 N. E. 237; Alexander v. Capitol Lumber Co., 181 Ind. 527, 105 N. E. 45; Morgan v. Thompson, 60 Ia. 280, 14 N. W. 306; Freelan v. Compton, 30 Miss. 424; West v. Brison, 99 Mo. 684, 13 S. W. 95; Watts v. Gantt, 42 Neb. 869, 61 N. W. 104; Revell v. Thrash, 132 N. C. 803, 44 S. E. 596; McCormick Harvesting Mach. Co. v. Rae, 9 N. D. 482, 84 N. W. 346; Brandt, Suretyship, § 344. surety, if he chooses, may pay immediately and be subrogated to the creditor's right. But though a promise may be so vague or uncertain in regard to the time of performance that it is incapable of enforcement,86 this will by no means always be true where no definite time is agreed upon. An agreement for sufficient consideration to forbear without specification of time will rarely if ever be held a nullity, so far as the principal debtor is concerned. Generally the agreement will be interpreted as requiring forbearance for a reasonable time.$7 If the agreement is binding in favor of the debtor it must be effectual to discharge the surety, unless the general principle that giving time to the principal discharges the surety is to be discarded. To say that a contract with the principal debtor to forbear for a day discharges the surety but that a contract to forbear for a reasonable time has no such operation, is absurd.88 § 1227. Extension of time for an illegal or usurious consideration. Whether an agreement on the part of the creditor to give time is a binding contract and therefore a discharge of the surety, involves ordinarily merely an application of the principles governing the formation of contracts and these principles are sufficiently considered elsewhere. Illegality, however, may also be involved. The promise to extend time cannot well be illegal, but the consideration for it may be; and illegal consideration whether in the form of a promise or of an act will generally invalidate the promise for which 88 See supra, § 38. 87 Supra, § 136. 88 In Findley v. Hill, 8 Or. 247, 34 Amer. Rep. 578, it was held that an agreement for consideration to forbear "until after harvest" would not discharge the surety, and a dictum to much the same effect is found in Miller v. Stem, 2 Pa. St. 286. But in Moulton v. Posten, 52 Wis. 169, 8 N. W. 621, an agreement made in summer to extend a note "until after threshing" was rightly held to discharge a surety and in C. C. Slaughter Co. v. Eller (Tex. Civ. App.), 196 S. W. 704, an agreement to forbear until certain property could be sold was held to have the same effect. A case like McGee v. Metcalf, 12 Smedes & M. 535, 51 Am. Dec. 122, must be distinguished. There it was properly held that a direction to a sheriff "not to execute the execution until ordered to do so,” would not discharge a surety for the reason that, "the time being indefinite, the stay could have been arrested at any time that the surety requested it to be done." it was given.89 But where usury is made illegal the parties are not generally regarded as in pari delicto. The effect of usury statutes differs in different States, and each statute should be considered; but generally if actual payment is made of usurious interest in order to secure an extension, the creditor will be bound by his agreement, since the court will not deprive the debtor of the promise for which he paid. The surety will, therefore, be discharged.90 But where the effect of usury statutes is to make such a payment a partial discharge of the principal, the contrary has been held, since part payment of a liquidated and undisputed debt is not sufficient consideration to support a promise; and the same result follows in a bilateral transaction if the creditor's promise to pay usury is regarded as void because of the illegality of the consideration.91 Where a negotiable note containing or including usurious interest is given for the creditor's promise of extension, the surety has been held discharged in a few cases; 92 and this conclusion may be supported, where under the local statute the note is not void, and if indorsed to a holder in due course would be binding upon the debtor. But if the debtor has made an executory non-negotiable promise to pay usury, in return for the creditor's promise to give time, the promise 89 See infra, § 1780. 90 Vary v. Norton, 6 Fed. 808; Kyle v. Bostick, 10 Ala. 589; Knight v. Hawkins, 93 Ga. 709, 20 S. E. 266; Myers v. First Nat. Bank, 78 Ill. 257; Beuton v. Dillon, 63 Ill. App. 517, 521; Lemmon v. Whitman, 75 Ind. 318, 39 Am. Rep. 150; Kenningham.v. Bedford, 1 B. Mon. 325; Wild v. Howe, 74 Mo. 551; Commercial Bank v. Wood, 56 Mo. App. 214; Grafton Bank v. Woodward, 5 N. H. 99, 20 Am. Dec. 566; Billington v. Wagoner, 33 N. Y. 31; Scott v. Harris, 76 N. C. 205 (but see Bank v. Lineberger, 83 N. C. 454); Osborn v. Low, 40 Ohio St. 347; Mann v. Brown, 71 Tex. 241, 9 S. W. 111; Turrill v. Boynton, 23 Vt. 142; Austin v. Dorwin, 21 Vt. 38; Parsons v. Harrold, 46 W. Va. 122, 32 S. E. 1002; Moulton v. Posten, 52 91 Jenness v. Cutler, 12 Kans. 500; Polkinghorne v. Hendricks, 61 Miss. 366 (but see Clayton v. Clark, 74 Miss. 499, 21 So. 565, 22 So. 189), 37 L. R. A. 771, 60 Am. St. Rep. 521; Nightingale v. Meginnis, 34 N. J. L. 461; Hartman v. Danner, 74 Pa. 36; Calvert v. Good, 95 Pa. 65 (compare Grayson's App., 108 Pa. 581); Cornwell v. Holly, 5 Rich. 47; McKamy v. McNabb, 97 Tenn. 236, 36 S. W. 1091. 92 Scott v. Saffold, 37 Ga. 384; Kelly v. Gillespie, 12 Iowa, 55, 79 Am. Dec. 516; Fay v. Tower, 58 Wis. 286, 16 N. W. 558. seem inconsistent with the general rule that releasing or giving time to the surety discharges the principal; or, if not, to involve a very strained construction of language. If reasonably construed, the agreement between the creditor and the principal debtor affects and varies the surety's risk. If this is so, it is obvious that the agreement of the creditor and principal debtor with one another that they will increase the surety's risk and that the creditor shall nevertheless hold him liable, should have no effect. The common reasoning to support the rule is that the reservation is effectual "upon this principle-first, that it rebuts the implication that the surety was meant to be discharged, which is one of the reasons why the surety is ordinarily exonerated by such a transaction; and, secondly, that it prevents the rights of the surety against the debtor being impaired, the injury to such rights being the other reason; for the debtor cannot complain if the instant afterwards the surety enforces those rights against him, and his consent that the creditor shall have recourse against the surety is, impliedly, a consent that the surety shall have recourse against him." 1 It is conceded in the cases that the reservation of rights against the surety can only be valid on the assumption that the rights of the surety also are reserved. It is often assumed that this involves merely the preservation to the surety of his right to enforce any direct obligation of indemnity running to him from the principal, but it must also involve the preservation of the right to enforce by way of subrogation the creditor's claim against the principal. It is sometimes asserted that this is equivalent to saying that the agreement between creditor and principal is conditional on the assent of the surety and that since he may if he chooses pay the creditor and enforce the claim against the principal, he is not discharged.' Prout v. Branch Bank, 6 Ala. 309; Pa. 121, 42 Atl. 25; Viele v. Hoag, 24 1 Parke, B., in Kearsley v. Cole, 16 M. & W. 128, 135. 2 See cases in preceding notes. 3 See for example National Park Bank v. Koehler, 65 N. Y. Misc. 390, |