22 FEDERAL nmronrmn.
Sur. § 370; Hayes v. Ward, 4 Johns. Ch. 129; Baker v. Briggs, 8
Pick. 129.
But this equitable principle is not to be applied so as to produce
inequitable results, as is often the case with the operation of the rule
that arbitrarily releases a surety from his liability where the creditor
has given the principal an extension of time, without reference to the
fact of whether the surety was or could be in any way injured thereby.
Therefore, where it appears that the surety was in no way prejudiced
by the release of the debtor’s property, because the property of the
surety would be needed to satisfy the debt in any event, he cannot
complain of such release. The only person who is injured is the
creditor.
The contract of the surety in this case was that her property might
be taken to pay her husband’s debts, provided they were not paid by
him, or his property included in the mortgage was insufficient for
that purpose. As thedebt was not paid by the debtor, and his prop-
erty pledged for its payment has proved insufhcient for the purpose
by a sum greater than the value of the surety’s property, it is not
apparent how the surety could be wronged if the creditors had re-
leased the whole of the debtor’s property without any reduction of
the debt, and enforced the mortgage against her property alone.
Brandt, Sur. § 380; Neimcewicz v. Gaim, 3 Paige, 642.
* The cases of Mayhew v. Boyd, 5 Md. 102, and Ives v. Bank, 12
Mich. 362, cited by counsel for the defendants on this question, are
not in point. They both turned on the construction of the contract
between the creditor and surety, and not the application of the equi-
table rule in question; and I may add that the Maryland case carries
the doctrine of the arbitrary right of the surety to be discharged from
his obligation by a mere extension of time to the debtor, whether he
is thereby prejudiced or not, to the very verge, and manifestly so as
to do injustice to the creditor in the particular case.
Other technical defenses to this suit are made in the answer, and
reserved in the stipulation of April 6th; and-- V
First. The creditors, from time to time, for a suiiicient consid-
eration from Cross, extended the time of payment of these [notes,
whereby the property of the surety was discharged from all liability
thereon.
This part of the answer is made on information alleged to have
been derived from Thomas Cross in his life-time, concerning matters
which transpired when the defendants were children. The state-
ment of the matter is very vague and general, without a single veri-
. fying circumstance of time, place, amount, or name, except that of
a dead man. Such an allegation is of little force as evidence, even
if made in response to the bill. 1 Daniell, Ch. Pr. 846, note 1.
But it is not made in response to any allegation in the bill. It is
new matter set up as a defense. The burden of proof to establish it
is on the defendants, and their answer is not evidence in support of