DISCHARGE OF OBLIGATION.
26. The obligation may be discharged by acts of the principal, or by acts of the cre ditor. Payment, or tender of payment, by the one, and any act which would deprive the creditor of remedies which in case of default would enure to the benefit of the surety, are instances of discharge. In the first place, a payment by the debtor would of course operate to discharge the liability. The only questions which can arise upon this point are, whether the payment is applicable to the payment in question, and as to the amount. Upon the first of these, this contract is gov erned by the general rule that the debtor can apply his payment to any debt he chooses. The surety has no power to modify or direct the application, but is bound by the election of the principal. 9 Bingh. 544; 2 Bingh. N. c. 7. If no such election is made by the debtor, the creditor may apply the payment to whichever debt he sees fit. 7 Wheat. 20 ; 9 id. 720; 5 Pet. 161 ; 9 Cow. N. Y. 409, 747 ; 1 Pick. Mass, 336. This power, however, only applies to voluntary payments, and not to payments made by process of law. 10 Pick. Mass. 129. A surety on a promissory note is discharged by the payment, and the note cannot be again put io 12 Cueh. Maas. 163 ; 7 Pick. Masa. 88. Whatever will discharge the surety in equity will be a de fence at law. 7 Johns. N. Y. 337 • 2 Vas. Ch. 542 ; 2 Pick. Mass. 223 ; 8 id. 128 ; 21 id. 488; 16 Serg. & R. Penn. 252 ; Wend. N. Y. 85.
27. A release of the principal debtor ope rates as a discharge of the surety ; though the converse is not tme, 17 Tex. 1.28, unless the obligation is such that the liability is joint only, and cannot be severed. See, on thin point, Fell, Guar. c. ; 8 Penn. St. 265.
2S. Any material alteration in the con. tract without the assent of the surety, or change in the circumstances, will diecharge the surety. Such are the caees where the sureties on a bond for faithful performance are released by a change in the employment or office of the principal, 6 C. B. N. s. 550 ; and it makes no difference whether the change is prejudicial to the eurety or not. 30 Vt. 122;
32 N. H. 550; 3 Barnew. & C. 605, per Tin dal, C. J. ; 9 Wheat. 680, per Story, J. ; Paine, C. C. 305 ; 3 Binn. Penn. 520; 3 Waeh. C. C. 70. If the principal and pbligee change the terms of the obligation *ithout the consent of the surety, the latter ia diecharged. 4 Wash. C. C. 26.
29. If the creditor without the aseent of the surety gives time to the principal, the surety is diecharged. Burge, Suret. 203 ; 3 Mer. Ch. 272 ; 2 Browne, Ch. 579 ; 3 Young & C. 187 ; 2 Ves. Ch. 540 ; 10 Bligh, N. s. 548 ; 4 Taunt. 456 ; 2 Bos. & P. 61 ; 3 Madd. Ch. 221 ; 2 Swanst. Ch. 539 ; 7 Price, Exch. 223; 8 Bingh. 156.
The contract must be effectual, binding the creditor as well as the debtor ; and it is not enough that the creditor merely forbears to press the debtor. 2. Ad. & E. 528 ; 5 Gray, Mass. 457 ; 2 Pick. Mass. 581 ; 15 Ind. 45. See, also, 17 Johns. N. Y. 176 ; 6 Ves. Ch. 734 ; 10 East, 34 ; 1 Boe. & P. 419 ; 1 Gall. C. C. 35 ; 2 Cables, Cas. N. Y. 30 ; 5 Cal. 173; 9 Tex. 615 ; 9 Clark & F. Hou. L. 45.
The receipt of intereet on a promissory note, after the note is overdue, is not sufficient to discharg,e the surety. 8 Pick. Mass. 458 ; 6 Gray, Miss. 319.
And as a requisite to the binding nature of the agreement, it ie necessary that there should be some consideration, 2 Dutch. N. J. 191; 6 Md. 113, 461 ; 30 Miss.424; but a part payment by the principal is held net to be such a consideration. 31 Miss. 664. Prepay ment of interest is a good consideration, 30 Miss. 432; but not an agreement to pay usu rious interest, where the whole sum paid can be recovered back, 10 Md. 227; though it would seem to be otherwise if the contract is executed, and the statutes only provide for a recovery of the excess. 2 Patt. & II. Va. 504. See, also, 8 B. Monr. Ky. 382; 23 Vt. 142.
It has been questioned how far the receipt of interest in advance ehows an agreement to extend the time: it may undoubtedly be a good consideration for euch an agreement, but does not of iteelf constitute it. At the most it may be said to be prima facie evi dence of the agreement. 30 Vt. 711; 15 N. H. 119.