delivered the following dissenting opinion.
Having arrived at a conclusion in this case different from that resulting in the opinion of the majority of the court, the law requires the reasons for such conclusion to be stated.
The facts, as stated by the majority of the court, may, as to all substantial matters, be conceded. The statement is, perhaps, not sufficiently comprehensive in my view to present the ’ case’ in its true light, as to the point relating to the decree; but as this is not material to the main point which I propose to consider, I will not at present attempt to enlarge the statement made by the court.
The first point to be considered is, whether the agreement entered into on the 5th of February, 1850, between Hunt, the creditor, and Andrew Knox, the principal debtor, was so far binding upon the parties as to have the effect of releasing Ambrose Knox, the in-dorser of the note upon which the judgment was recovered. It will be borne in mind that, by the terms of this agreement, Andrew *682Knox was permitted to pay the judgment in four equal annual instalments, and that Ambrose Knox was not a party to this ar-. rangement.
The first question is, was there a sufficient consideration for the agreement ? I respond in the affirmative to this question. The judgment being of record in the Circuit Court of Washington county, Knox was only bound to pay there, where the proper entry of satisfaction could he made upon the record. By the new arrangement, he either undertook to pay in Louisiana, where the contract was made, or, if this be not so, to seek his creditor, and make payment wherever he might be found; and, in either view, this was to some extent a modification of the liability imposed by the judgment, because the debtor assumed upon himself the trouble incident to 'this new mode of making payment, and trouble, loss, or inconvenience may be a sufficient consideration for a contract, and this principle being found in all the elementary books on this subject, I will not cite authority to sustain it.
Again, Knox was, by the terms of the contract, to confess a judgment at an early day in the Circuit Court of the United States for Louisiana, as a collateral security for the balance due upon the judgment. By this part of the agreement he assumed upon himself the trouble and expense of attending court, besides the costs incidental to the proceedings in court. Here was not only additional trouble, but additional pecuniary responsibility imposed, and both imposed for the benefit of the creditor; because the-object of the judgment was to create a lien upon the debtor’s property in the State of Louisiana, and in this way to create a new security for the debt. Or if there was no property to which a lien coiild attach, it would make no difference, as the creditor agreed to subject himself to the rules of a new jurisdiction, whose laws might even restrain him of his liberty if he failed to make payment. He agreed to concede to the creditor such additional power over him, the debtor, as the laws of Louisiana would confer in virtue of the judgment; and whether it be, in point of fact, a new security, or an additional remedy, or worth but little to the creditor as either, it was something, to which the parties attached value at the time; and the courts, in pronouncing upon the action of the parties themselves, have no right to set their judgment asidej unless it shall *683appear that they acted in some manner contrary to the restraints imposed upon their action by the law; for the question in such case is not what the law grants, but what it restrains; and hence, the parties having determined that such a thing was of value to one of them, before a court can determine otherwise, it must appear that the parties were restrained by the law from exercising their judgments in this particular. . -
Having viewed the consideration moving from Knox to Hunt, I propose noticing the consideration moving from Hunt to Knox; and, viewed in this light, I submit that the case is perfectly conclusive. I presume if Hunt had sued Knox upon any one of the instalments, supposing him to have been in default, no difficulty would have existed as to recovering a judgment. I take it for granted, upon plain principles of reason, law, and common justice, that he could not have resisted a recovery against him. The fact that Hunt had, at the request of Knox, divided the judgment, I may say into five instalments, and had entered into an agreement to receive payment in this way, that in addition to this he had not only suspended his legal and equitable remedies to enforce his judgment, but had virtually abandoned these remedies, would certainly be held a sufficient consideration to bind Knox to Hunt.
Now, if it be true that Knox was bound, the law favoring reciprocity in all contracts, Hunt would also be bound. The promise of one, was the consideration for the promise of the other, and hence one could not be bound without the other being equally bound; and if both were bound, then there was a contract, fully consummated on the day it was entered into between the parties.
It is, however, said, that Andrew Knox undertook to procure the consent of Ambrose Knox to the arrangement, and failing to do so, the contract was never completed. In the first place, the court are mistaken as to the fact that Andrew Knox undertook to procure this consent; for Mr. Marshall, Hunt’s agent, who transacted the business, says that he undertook to perform this duty, and no doubt supposed that he had done so, but he has failed to show that the indorser’s consent was obtained. There is, therefore, no reason for holding that Andrew Knox undertook to perform this duty. But I am willing to admit, for the purposes of this case, that he did so undertake, and that he even failed to take any step to procure the indorser’s consent.
*684It was a stipulation for the benefit of Hunt alone, and be could, if so disposed, waive tbe advantage to accrue to him under the stipulation; and the question is, whether he did so. The fact is admitted that he received two of the instalments agreed to be paid by Knox, thus recognizing the force of the contract for at least two years after it was entered into, and there is no proof that he ever made the least objection on this ground. What, then, must be the inference ? That this was either not a duty to be performed by Knox; or, if it was such duty, he, Hunt, was willing to waive performance.
Again, it is said that Andrew Knox failed to confess the judgment, as promised, in“the United States Court in Louisiana. There is no proof either way on this point. It is true that Mr. Marshall says that the judgment was not confessed, to his knowledge; and I submit that this is but another mode of saying that he knowrs nothing on the subject. The proof is, indeed, exactly such as every person profoundly ignorant of the fact to be proved might perhaps venture to make. But be this as it may, it was a stipulation in the contract, exclusively for the benefit of Hunt, that the judgment should be confessed; and being for his benefit, he could of course waive the advantage to accrue to him under such judgment ; and did he do so ? He received two instalments under the contract, after the time for confessing the judgment had elapsed, thus admitting the full operation of the contract for nearly two years after the alleged default of Knox. But the claim upon which the confession was to be made, being under the control of Hunt, he was bound to bring it into court, in some manner, before Knox could act in the matter.
This, however, is not a very material point in the case. It is clear that the judgment was not to be confessed until the meeting of the court; and if the contract was ever operative for even a day, the security was discharged. It is clear that the contract was to take effect before the judgment could be confessed, and this being the case, the remedies to enforce the Mississippi judgment were suspended at least until a breach of the contract. Knox had a right to say to Hunt, Your hands are tied until I violate my contract, and I cannot violate it until the time of performance arrives. Here, then, wras most clearly a binding contract for some period of time, *685and if it ever once so operated as to release the surety, nothing less than his own consent could re-establish his liability.
For the purpose of illustrating the points just considered, suppose Hunt had sued Knox upon- this agreement, could the latter have defended, on the ground that he had failed to procure the consent of Ambrose Knox, and that he had also failed to confess the judgments. Most certainly not; and why ? Because Hunt could say, these are matters for my advantage; I have the power to waive them, and I elect to do so. Now, if he took, after these omissions of Knox, the advantages of the contract, must he, Hunt, not be held to have waived what he most clearly had the power to waive, without affecting the liability of Knox ?
I will not, however, dwell longer upon this branch of the case, but will proceed to notice that part of the opinion which relates to the decree to be pronounced in this case. The property of the debtor being unincumbered, the question is whether this court, pronouncing such a decree as the chancellor should have pronounced, shall do more than leave the complainant to his remedy by his execution at law ? The majority of the court have decided that a decree for the balance due upon the judgment must be rendered in this court, and a commissioner must be appointed to subject to sale the property of the debtor, if he should fail, to pay this decree by a particular day. I cannot forbear expressing my strong and decided disapprobation of such a decree. Let us for a moment glance at the facts of the case. Ambrose Knox is the judgment debtor, and the proposition is first to render a decree against him upon this judgment. Secondly, there is no claim of any kind whatever by any person set up to his property named in the bill. And the next proposition is, that this property so situated shall be sold by a commissioner for the purpose of paying this decree, when there is not even a shadow of a lien pretended to exist against the property. I admit that there would at least be some foundation for such a decree, if the property was in the possession of or claimed by a third party, or if the object of the bill was to subject equitable assets, which could not be reached at law.
In the case of a third party claiming the property, the court would ascertain the amount due, so as to enable him to pay off the incumbrance if so disposed, without a sale of the property. The *686decree in sucb case would be, unless such third party paid by a particular day the amount decreed, the property should be sold. He is proceeded against on the ground that he holds property, which ought to be applied to the debts of another.
But here there is no claim, title, or possession adverse to Am-brose Knox, and consequently, no impediment from this source, to an execution at law. The case comes to the simple proposition to render a decree upon a judgment at law, to be satisfied out of the general property of the debtor; and if such decree be rendered, why not let it .be executed as any other purely money decree, by a writ of fieri facias, as provided by the statute ? for, to give jurisdiction over the property, so as to decree a sale, it must appear that the bill was filed rather to enforce a lien, or to reach the property in the hands of a third party. It is true the bill intimates that it is probable such third party might assert a claim, but it turned out before the trial and at the trial, that no such claim was or would be interposed. The debtor’s title was virtually confessed, and the remedy at law, if the judgment existed, shown to be unobstructed. As no third party is to be charged by the decree, no lien to be enforced against the property, I again repeat that it is virtually rendering a decree upon a judgment at law, to be satisfied out of any estate of the debtor subject to execution on such decree.
But the court cite authorities to sustain their position. They all establish what I have admitted, that when a third party is to be charged, or the bill is to reach equitable assets, the court will make a decree applicable to the case. The case in 20 Johnson, 554, was to subject bank stock and equitable assets to the payment of a judgment. The same may be said as to the case in 1 Paige’s Reports, 637. The case in 3 Kelly, 449, was to have an account taken as to the amount due upon a mortgage, and to have the balance of the mortgaged property applied to the complainant’s judgment. The case in 7 Ala. I have not been able to find, but I presume it is not different from the rule I have admitted. I am willing, however, to trust the case at bar upon admitted principles of equity. The judgment being a legal demand, cannot, as a general rule, be the foundation of a decree in equity. A court of equity will only decree on such demand, when there is no adequate legal remedy, or when there is *687a further object sought to he attained, such as enforcing a lien for the payment of the debt, or the like.
But the true reason for the decree, and I am willing to admit that it is the best reason that can be given, is that, if the complainant he left to his execution, he would be without remedy, because his judgment is barred by the Statute of Limitations. To relieve himself from such a defence, he must show that it is one which the debtor ought not in conscience to make; and if this showing is made, it is difficult to perceive why it could not be made in every conceivable case.
The debtor has done nothing to prevent the creditor from issuing his execution at any time; and surely it will not he said, that the agreement with Andrew ICnox, which might he disregarded by the creditor at any time, according to the opinion of the court, could be treated as an obstacle to an execution on the judgment. ' But this agreement was at an end on the 5th of February, 1854, and the bar did not become complete until the 20th of November, 1855, nearly two years after the agreement had expired by its terms. It is then simply a case of negligence, where the party slumbered of his own will upon his rights for more than seven years.
My opinion is that the decree ought to be affirmed.