The motion to dismiss this case for want of a sufficient bond is overruled — the court regarding the bond as in substantial compliance with the statute. (Paschal’s Dig., art. 1517.)
The rulings of the court below were mainly in compliance with the views entertained by the counsel for the plaintiff in error.
The evidence of Watson offered to prove that by an agree*66ment between himself and A. P. Ferguson the execution in the hands of the sheriff Bass was held up from the 21st day of August, 1861, until the 1st day of January, 1862, and was improperly excluded from the jury on the motion of counsel for plaintiff in error.
Again, it is insisted here that the judgment below should be reversed, for the reason that the cause was not submitted under a general charge from the court, but that special issues were given to the jury.
The record shows that counsel for defendant in error, on the trial below, asked that the cause might be submitted under a general charge.
Again, it is contended that the judgment is not in accordance with the findings of the jury. We are of opinion the findings do authorize the judgment, and that'the evidence was sufficient to support them.
The judgment of the District Court is therefore affirmed.
Aebtrmed.
Opinion delivered December 23, 1873.
A. M. Jackson, for plaintiff in error, on motion for rehearing. — The leading features of the case are these: The suit was brought by-the appellee Smith, to enjoin a judgment recovered by the appellants. But it is essential to note the relation or the connection in which the plaintiff Smith stands to the judgment and the parties whom he seeks to enjoin. He never was a party to the suit between the present appellants as plaintiffs and John W. Watson as defendant. At the time that judgment was rendered in the District Court, and at the subsequent term, in 1860, when it was affirmed by this court, the present plaintiff, Smith, was a total stranger to it. But after that judgment was affirmed by this court against Watson and his sureties in error, Towns and Dikes, execution Was issued against them and levied on two slaves. This was in January, 1861. Watson gave a delivery bond *67to obtain a release of the slaves, and the present plaintiff, Smith, became one of his sureties on that bond. And this was and is the only connection Smith ever had with this matter prior to Ms institution of tMs suit for injunction. That delivery bond became forfeited on the 2d day of April, 1861, and the legal effect of the forfeiture was to make execution issue against the prmeipal and sureties for the amount of the debt and costs. (Paschal’s Dig., art. 3779.)
How, to ascertain the true attitude of the present plaintiff, Smith, the essential thing to be considered is the condition of the delivery bond and its legal effect. That condition was the delivery of the property levied on to the sheriff of the county by or on the 2d of April, 1861, and on a failure to comply with this condition, the law fixed the liability of all the obligors for the debt and interest, and authorized execution to enforce that liability. The sole consideration of the bond and of the legal liability resulting Mom its forfeiture was the release of the property levied on. But for the execution of the bond, the property would have remained in the hands of the sheriff, and its proceeds would have been paid to the present appellants. By the execution of the bond, therefore, the appellee became a surety for "Watson, but Ms surety relation was with reference and relation to Watson alone. As to the present appellant, he was not a surety of Watson, but an original and principal obligor. The bond was not an individual contract of Watson, guaranteed by Smith as a surety. It was a joint and several obligation of them both, conditioned for the delivery of the property, and on the failure of the condition, the statute fixed the resultant liability on them both, and on them both as principal obligors, so far as these appellants are concerned.
The delivery bond was a substitute for the property wMch had been by its means released from the appellants’ levy; a substitute, too, not taken by the consent of the appellants, but wholly independent of their consent, by the officer of the law. Upon the forfeiture of the' bond, therefore, I submit *68that all the makers of it stood exactly alike in their relation to the appellants, no matter which was the principal or which the surety as between each other.
Judicial precedents having an immediate bearing upon this position, I admit to be scarce, hut in the recent Reports of the Supreme Court of the United States, I find this identical doctrine very explicitly laid down, and I submit that one adjudication of that tribunal is of itself a host.
The case I rely on is Inbusch v. Harwell, 1 Black, 566. The suit was on a bond given to release goods from the levy of an attachment, exactly analogous to our delivery bond on levy of an execution. The plaintiff in error, Inbusch, was a surety on the bond, complaining of the judgment rendered against him and his co-obligors by the court below. In demonstrating the correctness of the judgment, Judge Clifford, who delivered the opinion of the court, says, (on page 572:) “Attachments are made for the benefit of creditors, but the provisions for the discharge of the property attached is made for the benefit of debtors. They may demand as matter of right, upon complying with the requirements of law in that behalf, to have their property discharged from attachment, and that a bond with sureties be accepted in its place. Under those circumstances, it is quite obvious that the bond becomes a substitute for the property released; and where there are no circumstances to render the case an exceptional one, it must be held that any judgment that would have bound the property, if it had remained under attachment in the hands of the marshal, will bind the obligors of the bond,” fee.
The relevancy of this doctrine and language to the case now at bar is self-evident. If correct, it is obvious that the obligors in such a bond are all principals, so far as the plaintiff in attachment or execution is concerned; and that the forfeiture of the bond fixes their absolute liability as principal obligors to the plaintiff"; and from this it unavoidably follows, that if, after the forfeiture, the plaintiff gives time to one of the obligors, either for a consideration or as a mere *69indulgence, it is not an extension to a principal debtor at the expense or risk of a surety. There is no surety or question of suretyship in such a case. All the obligors are joint judgment or execution debtors, and there is no such principle of law as that an extension of time, even upon a consideration, given to one of several joint defendants in execution will release the others. True, there might be circumstances in a case like this which would change the result: for instance, if the plaintiff excused or prevented the delivery of the property at the time it should have been forthcoming. But as nothing of that kind is pretended in this case, I pass on.
The doctrine relied upon by the appellee is unquestionable law, but it can have no application in this case. In King v. Baldwin, Chancellor Kent stated it thus: “ The doctrine is, that the surety is bound by the terms of his contract; and if the creditor, by agreement with the principal debtor, without the concurrence of the surety, varies these terms by enlarging the time of performance, the surety is discharged, for he is injured and his risk is increased.” (2 Johns. Ch., 559, 560.) How, the only terms of this appellee’s contract are the stipulations of the delivery bond, and it is not even pretended that the appellants, or any one, ever attempted to vary those terms in any manner whatever. Hence it is clear that this case is wholly unaffected by the doctrine.
Again, in corroboration of my position, I cite Bay v. Tallmadge, 5 Johns. Ch., 315, where Chancellor Kent says: “I am not aware of any case that has ever imposed upon the creditor the necessity of peculiar diligence against the principal, on the ground of the still subsisting relation of principal and surety, after judgment and execution against the bail or surety. It becomes, then, too late to inquire into the antecedent relations between the parties. Those relations become merged in the judgment; ” and he cites 3 Wheat., 520, to the same effect.
I shall not insist that a forfeited delivery bond is in every *70respect a judgment, although in Smith v. Basinger, 12 Tex., 227, this com't expressly treated it as a judgment and affirmed it as a judgment. For, in the later case of Testard v. Neilson, 20 Tex., 140, it was expressly held not to be such a judgment as a writ of error would lie to; and this decision has probably settled the matter. But I submit that for all present purposes a forfeited delivery bond has all the attributes of a judgment, and merges the antecedent relations between the makers of it. It should be recollected that such a bond is taken by an officer of the law and under the express authority of the statute, and that the plaintiff in execution is not consulted about accepting it, and has no discretion or option to reject it. Execution issues at once upon the forfeiture of such a bond against all the makers. Taking the conditions of such a bond in connection with the provisions of the statute, (Paschal’s Dig., art. 3779,) and the forfeiture is equivalent to a confession of judgment by all the obligors for the amount of the execution.
Again, with respect to a creditor: how can the relation of a surety be created? Is not such a relation necessarily the result of a contract, to which the creditor is a necessary party ? Could it possibly be created without the consent of the creditor ? If not, then it is obvious that as regards the appellants the appellee is not and never has been a surety. The legal and equitable principle underlying all the decisions which have held sureties to be released by the creditor granting time to the principal debtor is, the alteration by the creditor of the surety’s contract with him. But there never has been any contract between the present appellee and the appellants. How, then, can that doctrine have any relevancy to this case ?
Desiring to conceal nothing, I mention that the case of Pilgrim v. Dykes, 24 Tex., 384, seems inconsistent with the positions I have taken. But it does not appear that those positions were called to the attention of the court, and the opinion takes no notice of the essential distinctions which must necessarily exist between a suretyship created by con*71tract of the parties, and the quasi suretyship common to statutory bonds, over which a creditor has no control or option.
Moore, Associate Justice. — It has become long since settled law, that where a creditor, by a valid and binding agreement with the principal debtor, without assent of the surety, materially varies the terms of the contract, or extends the time for its performance, the surety is thereby discharged. The form and character of the contract is immaterial. And though it is a specialty, and all the obligors appear on its face to be principals, parol evidence is admissible in equity to show the relation which the obligors bore to each other, and that the debtor was cognizant of it. (Burge on Suretyship, 202; Burke v. Cruger, 8 Tex., 66; Wybrants v. Lutch, 24 Tex., 309.) That the surety’s liability has its origin by a writ-of-error bond, which has passed into judgment before the extension of time by the creditor, is not an exception to the rule, has been directly decided by this court. (Pilgrim v. Dykes, 24 Tex., 383.) If so, certainly the same must be said as to sureties on a replevin bond, after a forfeiture.
But an examination of the record leads us to the conclusion that the issues submitted to the jury by the court were not presented in a manner calculated to elicit either a satisfactory or intelligible verdict. Most of the issues were complex and obscure, and, in the form in which they were drawn, not calculated to suggest to the minds of the jury the precise and specific issues upon which the case should turn. Though persons possessed of legal experience and knowledge may be able to eliminate from them the substance of the matter in controversy, it is by no means certain that the non-professional mind would do so. The verdict tends strongly to induce the impression that tins must have been the fact with the jury who tried the case in the District Court. The verdict unquestionably is flatly contradictory. The first part of it, as the court held, authorized a judgment for the plaintiff, while it concludes with a plain and direct general finding in *72favor of the defendant. The judgment can only be sustained by discarding altogether this part of the verdict, on the ground that it is not responsive to any issue submitted to the jury by the court.
Nor does the verdict, if free from contradiction, after discarding from it this general finding for the defendant, warrant the judgment which was rendered upon it. The effect of the responses to the three first issues is, that A. P. Ferguson owned one half of the judgment, and that he, in consideration of an amount paid him, over and above the amount to which he was entitled' on the judgment, stayed its collection without the knowledge or consent of the plaintiff; while in response to the fourth issue the jury find that the execution was not held up for the full amount of the judgment. If this was the fact, plaintiff had no right to complain as to so much of the judgment as was not held up. And as it does not appear from the special findings of the jury, to which we can only look to support the judgment, that this part had been paid, or, indeed, that all of it had been paid but Ferguson’s half, the judgment perpetuating the injunction as to the whole amount is not warranted. In view of these considerations, we think the court should have set the verdict aside and granted a new trial.
While we have not felt inclined to place the reversal upon the ground that a sufficient consideration was not shown to support the agreement to stay the execution, it is proper for us to say, that the evidence as exhibited by the statement of facts is indefinite, and not altogether satisfactory. It cannot be said that it clearly appears that Watson paid Ferguson anything more than he was credited on the execution. An agreement to give time in consideration of the mere payment of a part of the debt is a nudum pactum, and does not discharge the surety. (8 Tex., 71.) The proof shows that the principal debtor sold Ferguson a pair of mules, for which he credited the execution by two hundred and seventy-five dollars, and, as it is claimed, agreed also to stay the *73collection of the balance' of the judgment until the subsequent January, blow, if the mules, as estimated by the parties, exceeded in value the amount for which credit was given, the agreement giving time was valid and binding. On the contrary, if two hunched and seventy-five dollars was the amount at which the mules were valued by the debtor, it would be otherwise.
Reversed and remanded.