have issued, and it could not have been set aside. The
ground, however, of my opinion in this case is, that
general rule of the common law which requires that the-
obligation created by an instrument under seal, shall be
discharged by force of an instrument of equal validity.
The operation of that rule is, indeed, sometimes such,
as to make it imperative upon a court of equity to in-
terpose and grant relief, but it by no means follows,
that the rule of law is to be broken down, because a
Court having jurisdiction of another kind, will inter-
pose where there is a particular case, in which the rule
of law may be found to operate harshly. There is great
objection to a court of law taking upon itself to act as a
court of equity, because they have not the means of
doing that full and ample justice which the particular
case may require. We ought not, therefore, to inter-
pose in a matter which seems peculiarly to belong to
the jurisdiction of a court of equity. If a parol agree-
ment is entered into to give time to the parties, sup-
posing it not the case of a surety, but simply the case of
a common bond conditioned for
payment of money at

a certain day, it will not prevent the party from pro-
ceeding at law immediately, whatever the consideration
for the delay may be. And if that be so, how can the
giving of time to a third person by such an agreement,
prevent the obligee of the bond from proceeding at law
against the surety. There may indeed be such a con-
sideration for the agreement, as may induce a court of
equity to direct that the party shall not proceed to
inforce his remedy at law. But a parol agreement of
this nature can never operate to controul the obligation
of this bond in a court of law. The decisions which
have taken place in the courts of equity in cases of this

nature,

1821.

DAVEY

against PRENDERGRASS.

1821.

DAVEY

against

PRENDERGRASS.

nature, have always, as I understand them, proceeded on the notion, that at law, the thing prayed for could not be done. Bills of exchange stand upon a very different footing, there the law merchant operates, and the courts of law decide upon them with reference to that law. Guaranties for the payment of debts are not in general instruments under seal, and there is no strict technical rule, which, as to them, prevents a court of law from looking to the real justice of the case. The cases of bail and replevin bonds are provided for, by acts of parliament giving to the court an authority over them. But in both these cases, the jurisdiction is exercised always upon special application founded upon affidavits and not upon plea. A recognizance of bail stands upon a different ground from bail bonds as to the jurisdiction of the court. There the jurisdiction is not founded upon statute, but upon a general authority in the Court, to see that an improper use is not made of its own records. Therefore, in that case, as well as in the case of bail to the action, and of bail to the sheriff, if the Court sees that an improper use is attempted to be made of the security which the party has given, it immediately interferes. And that also is always done upon special application to the Court, upon affidavits setting forth all the circumstances of the case. In the case of Bulteel v. Jarrold in the House of Lords, which has been referred to, in which an attempt was made to put the matter on the record by way of plea, it was held, that it was no bar to the action. So in this case, which appears to be the first of the kind brought before this Court, although similar cases must have occurred very frequently, I am of opinion that we, deciding on legal principles, are bound to say, that this plea is no answer

to

the plaintiff's action. There must, therefore, be judgment for the plaintiff.

HOLROYD J. (a). I think that, in this case, the plea is not good in law. The circumstances there stated neither amount to a performance of the condition, nor to a legal excuse for non-performance of it. The bond which has been executed by these two sureties is conditioned for the payment of any balance not exceeding 500%. that may be due for goods sold upon credit to two other persons, within one calendar month after demand made. The effect of the plea is, that an unreasonable time was given to the original debtors, and that a warrant of attorney was taken for that purpose, having been given in pursuance of a parol agreement. Such an agreement, and the taking of the warrant of attorney, in my opinion, does not constitute, in law, a payment of the original debt, nor an annihilation of it. The mere giving time by parol, without consideration, is not even binding on the party himself. In this case, there seems to have been some consideration for the time given, namely, the giving the warrant of attorney, which would give the plaintiff a debt of a higher nature, by allowing a judgment to be entered up in case of non-payment of the first instalment. That certainly was a good consideration for the forbearance. But the merely giving an engagement that a man shall not sue for a limited time, is not a release in law of the original debt. An agreement that a man shall not sue at all, with a good consideration for it, amounts to a release, and would be an annihilation of the original

VOL. V.

(a) Bayley J. was absent at Chambers.

debt;

1821.

DAVEY

against PRENDERGRASS.

debt; but an agreement to give a limited time to pay the debt, as in this case, does not destroy the original debt, nor the liability to the payment of it. The original debt, then, remains; and by the condition of this bond, the obligors are bound to pay within a month after demand made of them. There is no performance of the condition of the bond, nor any release of the original debt. None of the circumstances mentioned in the plea amount to a performance of the condition; if they could, the condition would then be considered as performed, and the defence would be good in law. But that is not so; the whole defence set up arises upon a parol agreement. Now, suppose to that parol agreement the obligors had been parties, and the obligees had stipulated that they would not sue on the bond, still, unless that agreement was of as binding effect as the bond itself, it would avail nothing; for a mere parol agreement cannot be pleaded in bar, unless by operation of law it amounts to the performance of that which is the subject-matter stipulated for by the condition. Neither of these cases exist, from the circumstances which have been pleaded in this case; and, therefore, I think this plea does not amount to a defence in law. All the cases, or nearly so, upon this subject, except cases on bail-bonds, in which this Court entertains a sort of equitable jurisdiction, have been cases decided in courts of equity; and I think that the very principle upon which courts of equity give relief is, that the circumstances under which they give relief do not afford a good defence in point of law. I think this plea is

bad.

BEST

BEST J, I am also of opinion that this plea is bad. The case which has been referred to, as having been decided in the Court of Exchequer, and finally in the House of Lords, appears to me, in principle, to be de cisive of the present casc. That being the case of a recognizance of bail, the Court had a right to interfere, with respect to the use made of that recognizance, being one of their own records, in a manner in which they would not interfere in an action upon a bond; but that circumstance made no difference in the decision. It was there decided, that the giving time to the principal, although the party might be relieved by the equitable jurisdiction of the court in which the recognizance of bail was taken, could not be pleaded in answer to the action. It is also perfectly clear, that no delay on the part of the creditor, in calling upon the principal debtor to pay, will, in a court of law, discharge the security. In the case of the Trent Navigation Company v. Harley (a), it is there said by Lord Ellenborough, that no such delay would be a discharge of the security, in point of law, from an obligation of this description. The indulgence, by giving further time, is, in this case, by parol; if this would be an answer to an action on a bond in a court of law, there is no doubt we should have found numerous precedents on the records of this court, in which it had been so decided, because cases of this kind must have frequently occurred; but every instance in which relief is given by a court of equity, is a decision against this as a defence at law. I am of opinion, that if these defendants are entitled to any redress, they must go to a court of equity, where the Court may

1821.

DAVEY

against PRENDERGRASS