delivered the opinion of the Court :
The question presented by this record is, whether time for payment of the note was extended, by a binding agreement with the principal debtor, without the consent of the security. If such was the case, then the latter was released from all liability, unless he subsequently ratified the agreement. Does the evidence in the ease prove such an extension of time for payment ? The note was due six months from its date, with ten per cent, interest. Vane and Stone, in their answer to the bill of discovery, state that defendant in error, after the note matured, agreed with them to extend the time of payment if they wanted and pay ten per cent, interest and one hundred dollars each month, in liquidation of the note, until it should be paid. It will be perceived that they state no new consideration to sustain the agreement, if any was made. The note, by its terms, drew ten per cent, interest, and this agreement made no change in its terms, as to the rate of interest. A credit is indorsed on the note, of one hundred dollars for interest, to the ninth day of February 1862, but it does not appear to have been paid in advance. For aught that appears, it was paid on that day, and if so, it was then due. Had this interest been paid in advance, it would have constituted a consideration for the agreement. But so far as this record discloses the agreement to extend time for payment, if any was made, was a mere nudum pactum.
Henry Dow testified, that he had the note in his possession from the latter part of February until sometime in May, for collection. That during that time, he had several interviews with Vahe in reference to its payment, in none of which did he claim that any such agreement existed. That about the time witness placed the note in the hands of an attorney, that suit might be brought, Vane came to witness and offered him ten dollars if he would not institute legal proceedings on the note. If this evidence can be credited, and the witness was disinterested, and seems to have testified fully, fairly and with apparent candor, it contradicts the answers of Stone and Vane when they say time was extended. If' such an agreement existed why was it not insisted upon when suit was threatened ? Again, the answers fail to give time, place and circumstances attending the transaction, and have every appearance of loose conversations, as to what the principal debtors could do in the way of making payments.
The note when read in evidence made out the case for defendants in error. To prevent a recovery it required plaintiff in error to establish his defense. And upon a careful examination of the evidence, we think that he has failed, even if the answers of Stone and Vane to the bill of discovery should be considered, without reference to that of defendant in error.
The judgment of the court below is therefore affirmed.
Judgment affirmed.