Court for trial on this plea, the plaintiff again moved to strike it out and to remand the cause to the justice for the following reasons:

1st. Because the former plea of title has been by the court adjudged a nullity, and it was the duty of the justice of the peace, when the cause was remanded to him, to have tried the same, and to have rendered judgment in the matter as the right of the case required.

2d. Because the said defendant Randall elected to stand upon his former plea of title, and cannot file a second plea or amend his former plea; and because no amendment to a plea of title or additional plea can lawfully be made.

This motion being sustained, the defendant appealed to the General Term, where the judgment was reversed and the cause remanded to the Circuit Court for trial upon the plea of title as amended.

WM. F. MATTINGLY for plaintiff.

CHARLES S. MOORE and W. T. JOHNSON for defendant.

JOSHUA GREEN vs. John L. LAKE AND JONATHAN TArbell.

LAW. No. 20,891.

Decided January 8, 1882.

The CHIEF JUSTICE and Justices Cox and JAMES sitting.

1. In the District of Columbia a printed seal at the end of the signature is sufficient to make the instrument a specialty.

2. Where parties sign an instrument under seal jointly or jointly and severally, they sign it as principal debtors, and parol evidence will not be received to show that one of them signed as surety only and that an extension having been given the principal, the surety was thereby discharged. But whether it would be otherwise if the alleged surety is prepared to show that he has been actually injured by the extension, quære.

3. A contract between a creditor and a principal debtor for forbearance for a limited time, is a discharge of the surety only when the agreement to forbear is binding on the creditor, if, therefore, the agreement is without consideration, or otherwise not binding, the forbearance is no defence.

4. The burden of proof is on the surety to show that an agreement to forbear is a valid and binding one upon the creditor.

5. If the creditor simply agrees to extend the time indefinitely on payment of the legal interest. that is no more than he would be entitled to receive without any agreement, and as he receives no new consideration, such a promise is not binding, but it is otherwise if, in consideration of the extension, the interest were paid in advance, for the creditor in such cise gets something more than he would be entitled to receive as a matter of course.

6. An agreement to forbear in consideration of an executory promise to pay usurious interest in the future, is void under the statutes of usury, nor does it make any difference that at the expiration of the period of forbearance the usury was actually paid by the debtor. 7. Where the surety sets up the defence that the creditor had extended the time of the principal, the creditor is not estopped, by the fact that he has received the consideration for which the extension was made, to reply that the consideration was an illegal one.

8. The court will presume, in the absence of evidence to the contrary, that the usurious interest was agreed to be paid at the expiration of the period of forbearance.

9. The legal part of an undertaking can be enforced if the consideration for it is entirely legal, but an undertaking is void if any part of its consideration is illegal. Thus if a man receive a legal consideration for a promise to do a thing, part of which is legal and the other illegal, he will be compelled to carry out that part of his agreement which is legal; but if such a promise is not given for money or other value received, but in consideration of another executory promise, such as a promise to forbear, the latter is vitiated by reason of the partial illegality of the executory promise given as its consideration and the agreement to forbear is, therefore, not binding.

STATEMENT OF THE CASE.

MOTION for new trial on exceptions.

This was an action of debt brought by the surviving partner of J. & T. Green, against John L. Lake and . Jonathan Tarbell, based on the following promissory note given by them :

"$1,000.

JACKSON, MISS., Nov. 18, 1875. "Sixty days after date, we, or either of us, promise to pay J. and T. Green, or order, one thousand dollars, value received.

The words "seal" opposite the names of the defendants, and the brackets enclosing those words, were in print.

Besides two special counts on the note, the declaration contained the common counts appropriate to the action. The defendant Tarbell pleaded the general issue, and the following special plea :

"And for a further plea to the said first and second counts of said declaration, the said defendant says that he received no consideration for the making and delivery of said note or writing obligatory in said declaration mentioned, and never received any benefit therefrom, but executed and delivered the same as the surety for the said John L. Lake, jr., and the consideration therefor, if any, passed wholly from said J. & T. Green to said Lake, of all of which the said J. & T. Green had notice at and before the execution and delivery of said note to them. And said defendant says that after the said note or writing obligatory became due and payable, according to its tenor and effect, by an arrangement and agreement made between the said J. & T. Green and the said John L. Lake, jr., without the knowledge or consent of this defendant, the said J. & T. Green, for a valuable consideration, extended the time for the payment of said note or writing obligatory for sixty days from the time it became due, according to the terms thereof, without the knowledge, concurrence or consent of said defendant. And so said defendant says that he is absolved from all liability on said note or writing obligatory, and the said plaintiff is barred of all recovery against him thereon, and this he is ready to verify, &c."

Issue being joined, the plaintiff, on the trial, offered in evidence the note, the signatures of which were admitted. It was also shown that the statute of Mississippi in force at the time of the execution of the note, and at the time of the

trial, provided that a scroll should be equivalent to a seal, and that the Supreme Court of that State had twice decided that the word "seal" printed opposite a name was equivalent to a scroll. Plaintiff having rested his case, the defendant Tarbell was then sworn as a witness in his own behalf and testified that he signed the note at the request of Lake, on his representation that he desired to have it discountedwhich was subsequently done by plaintiff—and that he signed as surety for Lake, and not as principal, and that he received no consideration for signing, and no part of the proceeds of the discount, nor any part of the consideration for which the note was given; that he never spoke with the firm of J. & T. Green, of which plaintiff was the surviving partner, or their cashier, about the note, at any time or place, either before or after the giving of the same; that he had no notice or knowledge from them, or from Lake, or from any other person, of any extension of time for the payment of the note, and never assented to any such extension.

The defendant Lake was then sworn, and testified that the note was executed by the defendant Tarbell as his surety; that the plaintiff knew this at the time, and that the same was discounted about the time of the date thereof at the banking-house of J. & T. Green; that the proceeds of the discount were passed to the credit of witness in said bank, he having there at that time a deposit account; that Tarbell received none of the proceeds of the discount, and that plaintiff knew this. Defendant Lake further testified that the payment of the note was extended for sixty days from its maturity, by virtue of an agreement between himself and the cashier, without the knowledge of Tarbell, and that the following endorsement was then made on the note by the cashier: "Extended to March 20, sixty days' interest due;" that the time of the payment of the note was, on another occasion, and without the knowledge of Tarbell, extended indefinitely; that the only consideration for the respective extensions of the note was interest at the rate of one per cent. per month, paid, or to be paid, by witness to plaintiff; that witness did not remember whether the interest was paid

at the time the extensions were granted, or after the periods of extensions had expired; that this agreement and the endorsement for the extension of sixty days was made about the time the note became due; that he made several payments of interest at different times, and paid in all about $175 as such, up to July 1st, 1877.

The defendant, then, proved that the following was the law relating to interest and usury in force in the State of Mississippi at the time the note was given and the alleged extensions made:

"The legal rate of interest on all bonds, notes, accounts, judgments and contracts shall be six per cent. per annum ; but contracts may be made in writing for the payment of a rate of interest as great as ten per cent. per annum. And if a greater rate of interest than ten per cent. shall be stipulated for, in any case such excess shall be forfeited, on the plea of the party to be charged therewith."

This was all the evidence offered on the part of Tarbell, who thereupon rested his case. During the giving of the above testimony, plaintiff's counsel, at the proper time, objected to all testimony tending to show that the defendant Tarbell had signed the note in the capacity of surety. But the court overruled the objection, exceptions being

taken.

The plaintiff then testified in rebuttal, without objection, that "the time of the payment of the note was not voluntarily extended by J. & T. Green; as it was not paid, it was continued against the wish of the holders, because neither party would pay." It was never agreed to extend the note. When the parties claimed not to be able to pay it, they at one time paid interest, and Lake promised to pay at some future time, which is the full meaning of the memorandum "Extended." Not that they did not constantly look to the parties and urge payment during the interim, but, in consequence of Lake's promise, filed the paper away at that date as the earliest date they could hope to collect in, and with the intention of especially urging the fulfilment of said promise. It was put off because they could not collect, and