Hornbrooks v. Lucas. of credit to the obligor in the bond, and the implied agreement to extend this credit would be supported by a valuable consideration, namely the change in the character of the obligation which would be produced by the taking the negotiable note of the obligor in the bond. Any thing which confers benefit on the party to whom the promise is made, or loss or inconvenience on the party promising is a valuable and sufficient consideration to support any promise. It is a matter of no sort of importance what is the amount of inconvenience on the one side and of advantage on the other. It is sufficient in such case that one or the other existed in any degree however slight. See Uhler v. Applegate, 26 Penn. St. 140. The part payment of a debt in that case but a single day before it was due was held a valuable consideration to sustain a promise by the creditor; but if this part payment had been made the next day it would have been no consideration. The same was held by the whole court in Bantz v. Basnett, 12 W. Va. 773, point 3 of the syllabus, and pages 850-853. In that case the part payment was made only two days before the debt was due. Now the giving of a negotiable note in lieu of a bond is or may be a benefit to the creditor and a possible inconvenience to the debtor. It gives to the creditor a different obligation from the one he held, and the new obligation is a commercial one, upon which he may raise money. The debtor too by giving a negotiable note instead of a bond may subject himself to inconvenience. If he fails to pay his negotiable note promptly, he renders himself liable to be protested, and may then lose his credit to an extent that the non-payment of his bond promptly would not produce. Moreover if the negotiable note should be negotiated before it falls due, all of the maker's defenses, if he had any against his creditor, would be forever gone; nor could he acquire any offsets against such negotiable note, though he could against the bond, even after it was due and payable. See Ikin v. Brook, 1 B. & A. 124; 20 Eng. C. L. 357. If instead of a bond the creditor had a judgment against the debtor, and the debtor gave to the creditor a negotiable note for the amount of the judgment payable at a future time and not bearing interest till it was payable, I presume that the creditor would nevertheless have a right before the negotiable note became payable to issue an execution on his judgment and to enforce its payment. For this implied agreement on his part to give credit. on his debt till the negotiable note was payable would, it seems to Hornbrooks v. Lucas. me, be a nudum pactum and therefore null and void. Its nullity however does not, as is claimed, result from the fact that a judgment is of higher dignity than a negotiable note, but it results from the fact that the giving of the negotiable note is of no possible benefit to the creditor and no injury or inconvenience to the debtor. For after the negotiable note becomes due all that the creditor could get would be a judgment for the amount against his debtor, and that he already has. Nor is the debtor inconvenienced, because though he could not make any defense against the negotiable note, if assigned before it was payable, yet in this he loses nothing, as he could make no defense against a judgment already rendered. But if the claim of the creditor was a claim for rent, though it be a debt of higher dignity than a negotiable note, yet it seems to me the giving for such rent by the creditor of his negotiable note for the amount of the rent, the note being payable at a future day, though it would be no satisfaction of the rent, yet it would operate to suspend the party's right by distress or otherwise to enforce the rent, till the negotiable note should become due. This was expressly decided in the case of Judge v. Fiske, 2 Speer, 436. That case was like the one before us excepting only that the interest on the rent till the negotiable note became due was added in the giving of the note. But this circumstance could make no difference, as the reasoning of the court was in no manner influenced or affected by this circumstance. The court in that case held, that the giving of a negotiable note, payable on time for a precedent debt, would operate as an implied agreement by the creditor to extend a credit to the debtor in consideration of the debtor's executing his negotiable note for the amount of the debt, and that the giving of such a note would suspend the right of the creditor to distrain or enforce his rent, just as it would suspend the right of a creditor to enforce any other debt. The counsel for the defendants in error insists that this position is in conflict with Cornell v. Lamb, 20 Johns. 407, and Davis v. Gyde, 29 E. C. L. 166 and other cases which I have cited on page 497. But he relies especially on the two cases above named. In the first of these cases, Cornell v. Lamb, 20 Johns. 407, it was decided: "The acceptance of a bond for rent is not an extinguishment, even when the rent was reserved on a parol lease." This decision, it seems to me, does not touch the question in the case before us. Hornbrooks v. Lucas. It is not even claimed that the giving of the negotiable note in this case extinguished the rent, but only that it suspended the collection of the rent, till this negotiable note should become due, and this, for the reasons I have stated, I think it did. In the other case principally relied on by the counsel for the defendant in error, Davis v. Gyde, 2 Ad. & Ell. 623 (29 E. C. L. 166), it was decided as set forth in the syllabus: "A promissory note, given and received for rent, does not extinguish the claim for such rent, which is a debt of higher dignity than that arising from the note. Nor does the receipt of such note of itself suspend the right of distraining. If the giving of such note be pleaded in bar to an avowry, it must be shown that the note was accepted in satisfaction; or that by special agreement or from other circumstances pleaded it suspended the right of distress." Let us consider in what this decision varies from the views we have expressed, or from those of the South Carolina case which I have referred to, Judge v. Fiske, 2 Speer, 436. In so far as it holds that a negotiable note given. and received for rent does not extinguish the claim for such rent, they are in perfect accord; and in so far as it decides that the giving and accepting of such negotiable note for rent due may by special agreement suspend the right of distress, it is also in perfect accord with my view and with the South Carolina case. The South Carolina case decides expressly that such an agreement is supported by a sufficient consideration and is not a nudum pactum and Void. The English case in effect decides the same thing, for if such express agreement operates to suspend the right of distress, it cannot be a nudum pactum and void. In other words, the English case in effect decides that such express agreement is sustained by a sufficient consideration. The South Carolina case points out what this consideration is, while the English does not. In what then do the two cases differ? In nothing but in what is regarded as sufficient evidence of such an agreement. The English case holds, that because of the high dignity of a debt due as rent and the great favor shown to the right of distress, the courts will not consider that an agreement to suspend this right of distress should be inferred simply from the landlord taking from his tenant, after the rent is due, a negotiable note for the rent payable at a future time. The South Carolina case on the other hand says, that such an agreement to suspend the collection of rent by distress or otherwise must necessarily be implied from the taking VOL. XLIX-36 Hornbrooks v. Lucas. from the tenant a negotiable note payable at a future time. This is all the difference between them. To my mind the position taken in the South Carolina case is right. What possible object could the landlord and tenant have, the one in taking and the other in giving a negotiable note payable at a future day, except simply to extend the time in which the rent was to be paid on the tenant binding himself to pay it by giving for it a commercial security? We have seen that it is perfectly well settled in this State, that the giving by the debtor of a negotiable note to his creditor payable at a future time would necessarily be interpreted as an extension of time to the debtor. And it seems to me clear that we cannot interpret otherwise the agreement of the parties simply from the fact that the precedent debt was rent. It does not seem to me that the English court was justified in making this distinction. It is based on the peculiar favor in which the right of distress is held in England; but if such a distinction exists in England for this reason, it ought not to exist in this State, where so much peculiar favor is not extended to the right of distress, as is extended to it in England. Here the tenant after the levy of a distress and after the giving of a forthcoming bond may still dispute the claim for rent or even get up offsets against it, when judgment is asked on the forthcoming bond. Why then should he not be permitted to defend himself by proving that his landlord had agreed to suspend his right of distress? And why may he not prove this just as any debtor would be allowed to prove in any action for any debt, that the creditor had agreed for a consideration to suspend his action? And why may not this agreement on the part of the plaintiff to suspend his action be proven by the tenant in the same manner that it can be proven by any other debtor, that is, by simply proving that the plaintiff had taken of the defendant a negotiable note for the rent or debt payable at a future time, which had not expired, when the plaintiff instituted his proceedings? I cannot see why this mode of establishing this defense should not be available to a tenant as well as to any other defendant. [Minor matter omitted.] Reversed. The sale of personal property for unpaid taxes will not be restrained unless it is of peculiar value to the owner, and it is manifest that great injury would result from the sale. (See note, p. 287.) JIT for injunction. The opinion states the case. tion was awarded below. W. S. Wiley, for appellant. J. W. McCoy and T. P. Jacob, for appellees. The injunc SNYDER, J. Injunction suit brought November 15, 1880, in the Circuit Court of Wetzel county by F. M. White and wife against John Stender, sheriff of said county, to restrain the sale of personal property levied on by him to satisfy certain taxes and to inhibit him from collecting said taxes from the plaintiffs. The injunction having been awarded, the defendant demurred to and answered the plaintiffs' bill, depositions were taken by both parties, and the court having overruled the demurrer, the cause was finally heard January 26, 1882, when the court entered a decree perpetuating the injunction with costs to the plaintiffs, and the defendant appealed to this court. The appellant assigns as error that the Circuit Court improperly overruled his demurrer to the plaintiff's bill. This presents to us an important question. The material allegations of the bill are, that the plaintiffs are the owners in fee of a tract of seventy-six acres of land in Wetzel county upon which they reside and to which they derived title as follows: About the year 1867, Cæsar Matheny settled upon said land claiming it as his own and paying taxes thereon, that seven or eight years thereafter Matheny sold it to Milton Owens who went into possession and afterward, on November 13, 1876, Owens by deed of that date conveyed the same to the plaintiffs who then went into possession and have so continued ever since; that said seventy-six acres are within the boundaries of a large tract of land, known as the "Norris land," but have been held adversely to the owners of the large tract for |