the rule that the terms of the contract with the principal must be strictly adhered to and complied with. It there appeared that by a special agreement between the plaintiff of the one part, and Joseph Hall as principal, and the defendant as his surety, of the other part, the plaintiff was to let, and Joseph Hall to take the milking of thirty cows, at a certain rent per cow, from the 14th of February following; and the plaintiff averred performance of this agreement. The evidence was, that, on the 14th of February, Joseph Hall took possession of the dairy of thirty cows, only ten of which were fit for milking; that, at Lady-day, the plaintiff put two more milking cows into the dairy, making thirtytwo, and subsequently the plaintiff and Joseph Hall exchanged cows from time to time, the plaintiff putting in those fit for milking, and taking out others which were not so; in May, Joseph Hall had thirty-two cows, and he agreed that the plaintiff, instead of taking out two then, should be at liberty to take out four at the fall of the year; accordingly, between the 4th and the 20th days of October, the plaintiff did take away four cows, thereby leaving Joseph Hall, in the interim, less than thirty. It was held that, by the new agreement, the plaintiff had discharged the defendant, the surety.

It is reported to have been decided in an old case (d), that, if there be a guarantee for the price of goods, "for a certain sum to be paid at a future day," and the goods be sold to the principal on the terms, that part be paid down, and the residue at a future day, the guarantee is good for the residue, although all the money was not by the bargain to be paid at a future day.

It is clear that mere gratuitous forbearance, without any binding agreement or obligation to refrain from taking proceedings, cannot exonerate the surety at law or in equity; for his situation, and his right in equity, even before he is actually damnified, to compel the principal to exonerate him, are not thereby prejudiced (e). And the simply taking a new security from the debtor, expressly as a further security only, without agreeing to give him

(d) Turner v. Phillips, H. 43 Eliz. B. R. 1 Rol. Ab. 20, pl. 14.

Sed qy,

for here the vendee had not all the indulgence contemplated by the surety, though certainly the latter was pro tanto relieved.

(e) See Theobald, 135; Chitty B.

7th ed. 290, 8th ed. 442; Philpot v. Briant, 1 M. & P. 754, per Best, C.J.; Eyre v. Everett, 2 Russ. 381; Heath v. Key, 1 Y. & J. 434; Orme v. Young, Holt, N. P. C. 84; Goring v. Edmonds, post, 422; Chitty, jr. B. 100, v.

time (ƒ); or signing a composition deed, by which the debt is to be paid by instalments, with the express reservation of a right to enforce securities (g); does not affect the remedy against the surety. Nor does the neglect of the creditor to examine into the accounts of the debtor, respecting which the guarantee was given, with active diligence, discharge the surety at law, although an additional loss were perhaps occasioned by the neglect (h); nor is the surety discharged by the creditor's signature of the certificate of the principal under a commission of bankruptcy against him, although the surety required the creditor to refrain from signing it (i).

In Goring v. Edmonds (k), the facts were, that the defendant guaranteed the payment of the price of goods sold to his son. The plaintiff received part of the price, and afterwards made repeated applications for the residue. More than two years having elapsed from the time when the price should have been paid, the son gave the plaintiff a bill, (it seems at two months,) on a third person, which was dishonoured; and soon afterwards the son became bankrupt. The bill did not appear to be a real or boná fide transaction, as the acceptor was not a man of substance; nor was it shown that he was indebted to the drawer at the time. The plaintiff gave no notice to the defendant that he had taken the bill, or that it was dishonoured, or of the state of the account with the son, or of the application to him. It was held that a verdict for the plaintiff was correct; on the ground that the defendant had not been discharged from his liability as surety. But if the creditor, without the consent of the surety (1), agree

(f) Twopenny v. Young, 3 B. & C. 208; 5 D. & R. 259, S. C.; Chitty B. 7th ed. 213, 214, 8th ed. 445; Emes v. Widdowson, 4 C. & P. 151.

(g) Thomas v. Courtnay, 1 B. & Ald. 1; Nichols v. Norris, 3 B. & Ad. 41.

(h) Trent Navigation Company v. Harley, 10 East, 34; London Assurance Company v. Buckle, 4 Moore, 153; Goring v. Edmonds, infrà, note (k); Nares v. Rowles, 14 East, 514.

(i) Brown v. Carr, 7 Bing. 508; 2 Russ. 600, S. C.; Langdale v. Parry, 2 D. & R. 337.

(k) 6 Bing. 94; 3 M. & P. 259, S. C. After the dishonour of the bills, the defendant admitted his liability, to

the plaintiff's attorney, but was not then informed that the bills had been given. The question left to the jury was, whether time had been given, without the consent of the surety. As to the effect of taking a bill from the principal, and being guilty of laches thereon; see Warrington v. Furber, 8 East,242; Phillips v. Astling, 2 Taunt. 206; Murray v. King, 5 B. & Ald. 165; Holbrow v. Wilkins, 1 B. & C. 10; 2 D. & R. 59; Van Wart v. Woolley, 3 B. & C. 439; 5 D. & R. 374, S. C.

(1) Tyson v. Cox, 1 Turn. C. C. 395; Maltby v. Carstairs, 1 M. & R. 54; 7 B. & C. 735, S. C., and next note.

and become bound to give time to the principal debtor, the surety is clearly, as a general rule, declared from responsibility, at law and in equity (m). In Combe v. Woolf (n), it appeared that the defendant guaranteed the payment of porter to be delivered to J.; the memorandum containing no stipulation as to the term of credit. The custom of the plaintiff was to give six months' credit, and then sometimes to take a bill at two. The plaintiff, without the defendant's knowledge, allowed three months to elapse after the six months, and then took a promissory note at two months from J. for the debt; thus virtually giving a credit of eleven months. The Court held, that the defendant, as surety, was exonerated; upon the ground that his situation was altered and prejudiced by the plaintiff having, by taking the note, precluded himself during its currency from proceeding against the principal.

The technical rule, that the effect of a specialty (o) cannot be defeated at law by a parol agreement, or a written instrument not under seal, in variation of its terms (p), will not be departed from in a court of law, even in favour of a surety; although the fresh agreement of the nature alluded to, extend the period limited by the deed for payment of the debt guaranteed. It has therefore been held (4), that in an action upon a bond against a surety, it is no defence at law, that by parol agreement time was given to the principal, and that a warrant of attorney was accepted, to secure payment at the expiration of the prolonged credit.

It is a well established principle, that the acceptor of a bill of exchange, and the maker of a promissory note, respec

(m) Nisbet v. Smith, 2 Bro. C. C. 579; Burke's Case, cited in Exparte Gifford, 6 Ves. jun. 509; Rees v. Berrington, 2 Ves. jun. 542; see the cases in Theob. 127; Fell, 142; Lewis v. Jones, 4 B. & C. 515, note; Chitty B. 7th ed. 193, 292; 8th ed. 441; 2 E. Chitty Eq. Index, 1174; 13 Petersd. Ab. 778. In Boultbee v. Stubbs, 18 Ves. 20, a joint bond was given by the principal and surety. The creditor took a mortgage for part, and a warrant of attorney, payable by instalments, for the residue. The Chancellor held that the surety was discharged, although the mortgage and warrant of attorney were taken expressly without prejudice to any securities held by the creditors; see note, Maltby v. Carstairs, 1 M. & R. 562.

(n) 8 Bing. 156.; 1 M & Sc. 241. S. C.

(0) See ante, 3.

(p) Ante, 6.

(q) Davey v. Prendergrass, 5 B. & Ald. 187; 6 Madd. 124, S. C., in equity. See also Bulteel v. Jarrold, 8 Price, 467, cited 5 B. & Ald. 192, per Abbott, C. J., where a parol agreement to give security or time to the principal, was in vain pleaded by hail in an action upon a recognizance of bail. Semble, that relief in equity can be obtained in such cases, if the surety be prejudiced; per Abbott, C. J., Davey v. Prendergrass, and S. C. in Equity; Nisbet v. Smith, 2 Bro. C. C. 579; Burkes's Case, cited in Ex parte Gifford, 6 Ves. jun. 809; and in Rees v. Berrington, 2 Ves. jun. 540.

tively stand in the relative positions of principal debtors, as regards the other parties to the instrument. The subsequent parties are in law, in effect, sureties to the holder, for the party thus primarily liable; and are consequently discharged from responsibility, if the holder of the bill or note, without their consent, release, or bind or oblige himself to give time to, the acceptor or maker, to the express or implied prejudice of the other parties (r).

In a late case (s), it was held, that if a joint and several promissory note be given by A. and B., and the latter be surety, and an action be brought against A., the surety, B., (even assuming that parol evidence can be received, to show that he was only a surety,) is not discharged by the creditor taking from A., a cognovit, payable at a period before which judgment and execution in the original action could not have been obtained.

The negligent loss of, or injury to collateral securities, (held by the creditor), or a fund in his hand, to the prejudice of the surety, will, under circumstances, afford the surety ground for equitable relief (t).

We have before referred to a case, in which it was determined, that if a party agree, on being allowed a commission, to indorse a bill to be given for goods to be supplied to a third person, no liability to indorse the bill arises, unless the creditor proffer the bill to the surety for his indorsement, within a reasonable time (u). And where a broker, on purchasing goods for his principal, agreed with him for a per centage, to indemnify him against any loss on a resale, it was held that the undertaking was discharged, when the principal had a fair opportunity of selling to advantage, (the market price of the goods having gradually risen,) of which he neglected to avail himself; and that the broker was not liable on a subsequent resale at a loss (x).

(r) See the various cases on this subject, Bayl. on B. 5th ed. 338; Chitty B. 7th ed. 290, 298; 8th ed. 441; Roscoe on B. 74; Chitty, jun. on Bills, 100, v; Theob. P. & Surety, 180 to 205. An accommodation acceptor, not discharged by time given, or a release by an indorsee to the drawer, &c.; Harrison v. Courtauld, 3 B. & Ad. 36.

(s) Price v. Edmunds, 10 B. & C. see, however, ante, 84, note (z).

(t) See Law v. East India Company,

4 Ves. jun. 824; Capel v. Butler, 2 Sim. & Stuart, 457.

(u) Payne v. Ives, 3 D. & R. 664; cited ante, 66; and per Tindal, C. J., in Goring v. Edmonds, 3 M. & P. 265; 6 Bing. 94, S. C. The plaintiff did not require the indorsement, until the debtor became insolvent, and after having kept the bill for seventeen months, out of the eighteen for which it was given.

(x) Curry v. Edensor, 3 T. R. 524; Doe v. Smith, 2 T. R. 436.

SECTION III.

Respecting the Person.

OF A CONTRACT TO MARRY.

A CONTRACT to marry must in general be reciprocal, and obligatory upon both the parties (y). An action on such contract may be maintained by a man against a woman; for if the promise of the latter be void, the engagement of the man would be nudum pactum (2). However, in the case of an infant, whose promise is voidable, an exception exists; as an infant may sue, though not liable to be sued, for a breach of promise to marry (a). But if a person, who had promised marriage during his non-age, continued his addresses after attaining the age of twenty-one years, as if the contract still existed, and did not then disavow the engagement, he would probably be held to have ratified his promise, although no subsequent express promise could be proved (b). It seems, indeed, in no case of this nature, necessary to prove an express promise to marry in totidem verbis. The contract may be evidenced by the unequivocal conduct of the parties, and by a general, yet definite and reciprocal understanding between them, their friends and relations, evidenced by their actions, that a marriage was to take place. And where the promise of a man was proved, in an action against him, it was held that evidence of the woman having demeaned herself as if she concurred in, and approved of, his promise, sufficiently established her promise to marry him (c). Nor need a promise of this nature be reduced

(y) See ante, 13, 14; post 426, note (a); 1 Rol. Ab. 22, 1. 5; Hebden v.. Rutter, 1 Sid. 180; Rutter v. Hebden, 1 Lev. 147; Harrison v. Cage, Carth.467; see post 426, note (c); 1 Bla. Com. 433, Chitty's ed. and id., notes (1) and (2); 4 G. 4, c. 76; 6 G. 4, c. 92; see post chapter 4, as to contracts in restraint of marriage.

(z) Harrison v. Cage, Lord Raym. 386; 1 Salk. 24, S. C. A promise to pay money in consideration of discharging, or disengaging the defendant from his promise to marry the

plaintiff, is binding; and it is sufficient to aver generally that the plaintiff did discharge or disengage the defendant, &c., without shewing how; Baker v. Smith, cited in Aglionby v. Towerson, Sir T. Raym. 400. A bill in equity lies to compel a discovery, whether a party had promised marriage; Vaughan v. Aldridge, Forrest's R. 42.

(a) Holt v. Ward, Stra. 937, 850; Fitzgib. 175, 275, S. C.; ante, 15. (b) See ante, 125.

(c) Hutton v. Mansell, 3 Salk. 16, 64, S. C.; 1 Bla. C. 433, note (2),