1. The charge of the Court, in this case, confined the jury to the single inquiry whether Crawford was substituted for Lochrane as the debtor of Solomon. We think this was error. There was positive evidence that Solomon agreed to take Crawford’s liability as collateral security; and it was the duty of the Court to have permitted the jury to consider that evidence, in connection with the evidence in reference to the substitution; and to inquire whether Solomon so *290used this collateral security as to work injury to Lochrane; and if so, what damage resulted, by such act of Solomon, to Lochrane.

2. In 23d Ga. Reps., 181, it is ruled that the holder of collaterals is bound to due diligence, and if anything is lost by the want of it, he is to be the loser.

In 4th Ga., 442, and 18th Ga., 655, this Court held, that collaterals placed in the hands of a creditor are not the subject of garnishment. Apply these rules to this case, and what is the result? If, as the evidence of Crawford shewed, Solomon accepted his liability as collateral, for the payment of Lochrane's debt, no other creditor of Lochrane could have compelled Crawford, by process of garnishment, to pay the debt which he owed to Lochrane, and which Solomon had accepted as collateral, to any other creditor of Lochrane, till Solomon was paid. And Solomon, having given time to Crawford, in consideration of two and a half per cent, per month, and Crawford having paid him a valuable consideration for the indulgence, Lochrane could not have maintained an action against Crawford upon the liability which Solomon held as collateral, during the period for which Crawford had paid Solomon for indulgence. And it necessarily follows, under the ruling of this Court, in the case cited in 23d Ga., that Solomon, w'ho, instead'of exercising due diligence to collect the money out of Crawford, gave him indulgence for a valuable consideration, is liable, if loss accrued to Lochrane by reason of such indulgence. We are aware that the evidence is in conflict, but as Crawford's testimony sustained this view of the case, the Court should not have withdrawn from the jury the consideration of this evidence, and of the question as to the damage sustained by Locrane on account of the extension of time of payment given by Solomon to Crawford.

If the mortgage had been foreclosed by Solomon, and levied upon the printing press in the hands of Crawford, without the indulgence for which Solomon received the two and a half per cent, per month, most probably the money would have been made out of the press before it was con*291sumedbyfire; and the Court should have permitted the jury to consider whether Lochrane sustained damage by this delay.

It is insisted in argument, that the verdict should not be disturbed, because Lochrane did not ask the Court below to give this view in charge to the jury. The charge, as given, entirely excluded this branch of the case from the considera'tion of the jury. The charge was plain and positive, and Lochrane might well suppose the Court would refuse to give in charge a proposition in the teeth of the charge already ■given. If the charge, when applied to the evidence in the case, was erroneous, as we hold it was, the fact that Lochrane did not ask the Court to give a charge in contradiction of what he had already charged, can not be a sufficient reason why the error should not be corrected.

Judgment reversed.

dissenting.

From the facts in this case, as exhibited by the record, Lochrane was the maker of the note sued on, the principal debtor to Solomon, the plaintiff, and not a surety. It was Ms debt, and he is bound, under the law, to pay it, unless he is discharged from such payment by law. On what ground does he seek to be discharged from the payment of his own debt to Solomon ? Simply on the ground that he had bargained the property which he had mortgaged to Solomon, to secure the payment of the debt to Crawford, and had given Crawford time to raise the money to pay off the mortgage debt of $1,000 00. There is no evidence in the record that Solomon agreed to substitute Crawford as his debtor, for the $1,000 00, in the place and stead of Lochrane. All that can be said is, that Crawford paid Solomon two and a half per cent, a month not to foreclose his mortgage on Lodhrand s property, in payment of Loehrane’s debt. But it is said, that this payment by Crawford to Solomon of two and a half per cent, a month, for three or four months, not to foreclose his *292mortgage on Lochrane’s property, in payment of Lochrane’s debt, was a collateral. Collateral to what? There is no evidence that Solomon agreed to accept Crawford, either collaterally or-otherwise, as paymaster for Lochrane’s debt. Upon what legal principle, then, can Crawford, or Crawford’s act, be said to be a collateral undertaking to pay Lochrane’s debt to Solomon, ’Without the consent of Solomon? Collateral security in contracts, is a separate obligation, which is attached to another contract, and is to guarantee its performance. By this term, is also meant the transfer of property, or of other contracts, to insure the performance of a principal engagement. 1st. Bouvier’s Law Dictionary, 275: What collateral security did Solomon take from Crawford, to secure Lochrane’s debt ? What has become of that collateral security, if any such ever existed ? How, or in what manner, has the owner of that collateral security been injured by the act of Solomon? The simple truth is, (taking the most favorable view of this case for the defendant,) that Crawford paid Solomon two and a half per cent, a month for three or four months not to foreclose his mortgage on Lochrane’s property, and thereby collect the debt that Loehrane owed him. That is all of it; there is no surety, or collateral, or collateral security in the case, who has been injured. The assumed collateral is a mere man of straw. In mjr judgment, there was no error in the Court below in overruling the motion for a new trial, on the ground that the verdict was contrary to the evidence. The Court was not requested, in writing, to charge the jury upon any part of the evidence, and there is no exception taken, that the charge of the Judge did not cover all the facts proved. The charge of the Court excepted to, was not error, in view of the facts contained in the record. The defendant was the principal debtor, and not a surety, or collateral surety, and has lost no collateral security. The loss of which he complains, (the destruction of'the printing-press by fire,) did not spring out of, or result from, any agreement made between Crawford and Solomon, which would operate as a legal discharge of the debt, but from a cause entirely independent of that alleged agreement. From the facts dis*293closed by the record, and my understanding of the law applicable thereto, I am of the opinion the judgment of the Court below should be affirmed.