1821.

The KING agains: The Inhabit

ants of ALNWICK

time of making such removal, under and by virtue of
the same.
The question, then, is, when was the order
served? It clearly was not served in September, 1814,
for that was an insufficient service of a copy only, with-

out shewing the original. Nor was the second service
good; for that was not a duplicate, the original having
been executed in 1815, by the magistrates, without any
fresh examination or enquiry. It was nothing more
than a copy. Then there was no valid service till the
removal took place; and in that case the appeal is in
time.

Littledale, contrà. It must be admitted, that the first service was insufficient; but the second was valid. The date of an order is immaterial. In Rex v. Brimpton (a), it was in blank, and yet the order was held to be good. The mere circumstance, therefore, that this, which was executed in October, 1815, was antecedently dated, will not vitiate it. It was, therefore, an original order, which may be defined to be an order coming from the proper authority, It was not necessary that the magistrates, who were perfectly well acquainted with the case, should hear the same facts proved over again. Then, if so, the appeal should have been in 1816, and is now too late.

ABBOTT C. J. The objection made here to the judgment of the Court of Quarter Sessions, is, that they have allowed this appeal, when in point of law the appellants were not entitled to it, not having appealed within the time allowed by law. That question depends entirely

(a) 2 Nel. 184.

upon

upon the validity of the service of the order. Now, that service, in order to be valid, must be either by delivery of the order itself, or by leaving a copy of the order, and at the same time producing the original. It is admitted, that the service in 1814 was defective; but then in 1815 there was a second service. Now, if that was the service of a copy, it was bad, for the same reason as vitiated the previous service. It is, however, contended, that this was the service of a new original order. But if we were to hold that to be so, we should, as it seems to me, give to it an effect not intended by the justices who executed it; for if they had intended it as a new order, they would have given to it a date corresponding with the time of its execution, I think that they never could have intended it as a new order, but only as an authenticated copy of their former order; and that the Court of Sessions were right in so treating it, In that view of the case, it is clear that both services are defective, and, consequently, that the appeal was in time, and the order of Sessions is therefore right,

Order of Sessions confirmed.

1821.

The KING against The Inhabitants of ALNWICK.

DAVEY and Others against PRENDERGRASS.

Tuesday,
November 5th.

defence at law,

DECLARATION in debt on a surety bond, exe- It is not any cuted by the defendants, conditioned for the payment within one month after demand of such balance,

not exceeding the sum of 500l. as upon the settlement

of accounts between the plaintiffs and Samuel Prendergrass and James Peter Prendergrass, should appear to be due from the latter to the former for coals, to be de

livered

to an action on

a bond against a surety, that

by a parol

agreement time

has been given to the principal.

1821.

DAVEY against PRENDERGRASS.

livered by them to the said S. and J. P. Prendergrass. Breach, non-payment of the said sum after demand. The defendants craved oyer of the bond, and pleaded, first, non est factum, and second, a special plea in bar, that the plaintiffs had, by parol agreement, without the privity of the defendants, given time to the principal debtors to pay by instalments, and had taken a warrant of attorney to pay, by monthly instalments of 100%. each, a balance of 1099l. 9s., found to be due from the latter to the former, upon an adjustment of accounts for coals sold and delivered, with a power of issuing execution, in case of default of payment of any one instalment when due. To this last plea there was a demurrer and joinder in demurrer.

W. H. Maule, for the plaintiffs. The question in this case is, whether giving time to the principal is a defence at law to an action on a bond against the surety. There are a great variety of authorities which no doubt may be cited, where, in bills of exchange, giving of time to the acceptor, will discharge the drawer: and so also in cases of bail, giving time to the principal discharges the bail; but no case can be found in which such a defence has been pleaded to a bond. In Donnelly v. Dunn (a) it was held, that bail cannot plead the bankruptcy and certificate of their principal, to an action of debt upon a recognizance of bail; and in Bulteel v. Jarrold (b), which was a similar action of debt, the defence pleaded was, time given to the principal, to which there was a demurrer; and in the Court of Exchequer, judgment was given for the plaintiff, on the ground that this

(a) 2 B & P. 45,

(b) Not reported.

could

could only be taken advantage of, by an application to the equitable jurisdiction of the Court, and this judgment was successively affirmed, both in the Exchequer Chamber and in the House of Lords. In giving relief on bail-bonds, the Courts proceed on the equitable jurisdiction given them by statute 4 and 5 Anne, c. 15. s. 20.; but that is not done by plea, but by summary application to the Court. Suppose an action of debt on bond, brought for the benefit of an assignee, in the name of the obligee, and a plea of a release by the obligee, the Court might, perhaps, on a proper case being laid before them, order the plea to be taken off the file, but they would not allow the facts, if replied, to be a sufficient answer to the plea. The cases of bills of exchange depend entirely on the law-merchant, and are quite distinguishable. Burke's case, mentioned in English v. Darley (a), was a case in equity. The practice of granting injunctions in courts of equity, in these cases, is also an authority to shew, that this is not a good defence at law, and no such plea as the present can be found in any of the books of entries.

Chitty, contrà. The circumstance that courts of equity have it in their power to give more extensive relief in these cases than courts of law, will satisfactorily account for the fact, that most of these decisions have been upon cases in equity; for in equity the Court can direct the securities to be delivered up. The principle, however, upon which the decisions go, applies equally to a court of law. It is to be found laid down in Nesbett v. Smith (b), and it is this, that where the agreement

1821.

DAVEY

against PRENDERGRASS,

1821.

DAVEY against PRENDERGRASS.

with the principal alters the situation of the security, by postponing the time of payment, the surety is released from his liability. Samuel v. Howarth (a), Law v. East India Company (b), and a variety of other authorities, may be cited also to the same point. It must be admitted, that the cases in courts of common law, are questions arising, for the most part, on bail-bonds, as Rex v. Sheriff of Surrey (c), Thomas v. Young (d), Bowsfield v. Tower (e), Croft v. Johnson. (f) In Moore v. Bowmaker (g), Gibbs C. J. says, "The principle was first adopted in the Court of Chancery, that if a creditor gives time for payment to his principal debtor, without giving notice to the surety, the latter remains no longer liable to the debt." And he then adds, "The courts of law, in late days, have acted on the same principle in cases of bail." So that it should seem that learned Judge treats it as a principle which could be extended properly to courts of law. Now that principle ought to be extended to this case; for otherwise the obligor and obligee might combine together to defraud the surety. In Orme v. Young (h), this very point came before Gibbs C. J., but was not decided. He also cited Beadle's case (i), and Grenningham v. Ewer. (k)

ABBOTT C. J. Looking at the nature of the security in this case, it is impossible to say, that the sureties sustained any prejudice by what has taken place, for, if the first 100l. was not paid, immediate execution might