It was objected below that Wiley had violated his agreement with Coalter by commencing suit before the expiration *243of the period of indulgence. A complete answer to this, is the fact that Ooalter failed to pay on his note the $1000 stipulated to be paid by him to Wiley on 1st April 1856; that promise constituted the consideration of the agreement for indulgence, and Ooalter failing to comply, libeiated Wiley.

The main question, however, in the case is, was Wiley bound to respond to Ooalter for the amount of the note of Miles W. Johnson, which had been given by Ooalter to Wiley as collateral security, Johnson, in the interval between the turning over of his note and the suit against Ooalter, having become insolvent ?

If the note of Johnson had been turned over simply as collateral, Wiley would thereby have been invested with all the powers of Ooalter over the paper ; and if, by want of diligence, as an omission to sue when by suita judgment Could have been made productive, no doubt is entertained but that, to the extent of the damages sustained in such case by Ooalter, Wiley would have been liable to respond. But by examining the receipt given by Wiley when taking Johnson’s note as collateral, we find this condition attached: “ Whenever the said Ooalter’s note is paid, I (Wyley) am to deliver up to said Ooalter or his order, said note on Johnson,” &c. No right of suit by Wiley is given by this receipt: on the contrary, by the strongest implication, there is a denial of this power.

How it is possible for human ingenuity to reconcile, upon this contract, a power or right in Wily to sue Johnson’s note, reduce it to judgment, file it then in office as a court paper, with the requisition that he should deliver up Johnson’s note to him or order, upon the payment of his, Ooalter’s, note, we are at a loss to conjecture. Wyly |had no right to sue Johnson’s note, and having none, can not be answerable for any consequences which have resulted from its not being done. Whenever Ooalter pays his note, then, and not till then, has he a right to the delivery of Johnson’s note. Ooalter has never paid a cent on his note. Had Wyly sued *244Johnson’s note, the note, when placed in judgment, becomes theréby a court paper, is placed on file, and is then beyond the reach or control of the plaintiff or his attorney. How could Wyly, after thus having sued Johnson’s note to judgment, and Ooalter called on him and paid up his own note, “deliver up” to Ooalter Johnson’s note?

We can not but express surprise that a transaction in writing, so simple and capable of an easy and correct decision by keeping the contract steadily in view, should have been tangled up with questions which do not belong to the case, and which, in themselves, furnish no legal or equitable defence.

If Johnson became insolvent, and the debt due by him lost by suit not having been prosecuted on it, it is Coalter’s fault, and he should bear the entire loss.

It is palpable, in scrutinizing the receipt, that Ooalter, in seeking to get indulgence on his own note, sought also to get his indulgence for his friend Johnson. He must reap the harvest of his own sowing.

We put entirely aside, in the view we have taken of this case, the negotiations of Mr. Trammel, the attorney of Wyly; they were disaffirmed by his principal; they were made known at the time to Ooalter, and he made no complaint of them; he sustained no injury in any degree by them: moreover, the note of Johnson was restored back to Wyly to be held by him, and to be delivered up when Ooalter paid his own note. It is sufficient to say that the agreement with Johnson to indulge him was not within the scope of the powers of an attorney at law ; and not being either authorized or acquiesced in by Wyly, he can not, by any legal principle with which we are acquainted, be affected by these negotiations.

The verdict in this case is a flagrant violation of law and evidence, and we cheerfully affirm the grant of a new trial by the Judge below.