Brown v. Prophit
Mississippi Supreme Court
Error to the Circuit Court of Yalobusha County. Hon. Orlando Davis, Judge. The action was against W. F. Smith and Robert Prophit, as joint makers of a sealed note. The suit was dismissed as to Smith on suggestion of his bankruptcy. Prophit pleaded that he was surety, and delay in payment had been given, for a valuable consideration, to the principal debtor, without his consent.
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Error to the Circuit Court of Yalobusha County. Hon. Orlando Davis, Judge. The action was against W. F. Smith and Robert Prophit, as joint makers of a sealed note. The suit was dismissed as to Smith on suggestion of his bankruptcy. Prophit pleaded that he was surety, and delay in payment had been given, for a valuable consideration, to the principal debtor, without his consent. The facts were that on the 10th October, 1871, when the note fell due, it was understood between Brown and Smith that Smith might keep the money on paying two and a half per cent a month interest; and Smith supposed…
1Opinion of the CourtCampbell, J.
If the holder of a note which has become due agrees with the principal maker of said note that he may retain the sum due for a definite period of time, upon his promise to pay usurious interest, and such maker agrees to keep said sum for such definite time, and to pay said interest, this agreement will discharge a surety on said note not consenting to such contract for forbearance. Although the usury cannot be collected, the legal rate can be; and the absolute right to get interest for a given time is a valuable consideration to uphold a promise to forbear, and to tie the hands of the…
2Cases cited2 opinions
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- Roberts v. StewartMississippi Supreme Court · 1856
3Cited by10 opinions
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- Glenn v. MorganWest Virginia Supreme Court · 1884
- Polkinghorne v. HendricksMississippi Supreme Court · 1883
- First Nat. Bank v. StraussMississippi Supreme Court · 1889
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