Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

takes out execution against the principal and waives it (q):—or where having taken out execution, he receives from the principal a sum of money in part payment, and takes his security for the remainder, with the exception of a nominal sum only (r); upon the principle, that he is a trustee of his execution for all parties interested in the subject-matter, concerning which such execution has been taken out. But where a fieri facias had been sued out against the acceptor of a bill of exchange, and which was afterwards waived, it was held, that the drawer was not thereby discharged; for the rule that an indulgence to an acceptor without the consent of the drawer, discharges such drawer, does not apply after judgment (s).

Any indulgence to the principal (which is binding), without the consent of the bail, and which operates to their prejudice, discharges the bail (t); thus, if the creditor, having recovered a judgment against the principal, take from him a bill of exchange, to which a surety is a party, for payment of the debt and costs by instalments, the bail are discharged (u); for the bail cannot render the principal, if the creditor give the principal time for payment by instalments, until the time when failure is made in payment of an instalment, and the bail are therefore put in a different situation from that in which they placed themselves, when they entered into their recognizance.

So sureties in a replevin bond are released from

(q) Mayhew v. Crickett, 2 Swanst. 185; S. C. 1 Wils. C. C. 418; and see the judgment of Lord Eldon, C. J., in Smith v. Knox, 3 Esp. 47; and Williams v. Price, Sim. & S. 581.

(r) English v. Darley, 2 Bos. & P. 61; S. C. 3 Esp. 49.

(s) Pole v. Ford, 2 Chit. 125. (t) Thomas v. Young, 15 East, 617; West v. Ashdown, 1 Bing.

N

164; S. C. 7 J. B. Moo. 566; Farmer v. Thorley, 4 B. & Ald. 91; Bowsfield v. Tower, 4 Taunt. 456; Croft v. Johnson, 5 Taunt. 319; S. C. nom. Crofts v. JohnMarsh. 59; and see Melvill v. Glendining, 7 Taunt. 126; Rex v. The Sheriff of Surrey, 1 Taunt.

son,

126.

(u) Willis v. Whitaker, 7 Taunt. 53; S. C. 2 Marsh. 383.

their liability, when, without their privity, the defendant in replevin gives time to the plaintiff in replevin (v); for the condition of the bond being an undertaking on the part of the sureties, that the tenant shall prosecute his suit with effect, and without delay, and make return of the goods seized, if so adjudged, the tenant is by such agreement precluded from proceeding according to the condition of the bond, and is restrained, by the act of the landlord, from doing that which his sureties have engaged he shall do, and the bond, therefore, as against the sureties, is functus officio.

As the reason for discharging a surety from his liability, when time has been given to the principal debtor, is, that the creditor has done an act by which the surety is (w), or may be (r), injured, any agreement entered into between the creditor and principal, by which the remedies of the surety are not diminished or affected (y), and still less, by which they are accelerated (z), as it cannot prejudice the surety, so it shall not discharge him; thus, in a case where sureties became bound in a bond, conditioned to be void if they should, within one month after demand on them, pay such balance as should become due to the creditors upon settlement of accounts between them and the principals, and a balance having become due to the creditors, the latter, without communicating to the sureties, took from the principals a warrant of attorney for the amount, with a stay of execution if they should discharge the debt by instalments of a certain sum per

(v) Bowmaker v. Moore, 3 Price, 214; S. C. 7 Price, 223; and see Archer v. Hale, 4 Bing. 464; S. C. 1 Moo. & P. 285; and the observation of Tindal, C. J., in Aldridge v. Harper, 10 Bing. 118.

(w) See ante, p. 166, et seq. (x) And see the observation of Richards, C. B., in Bowmaker v.

Moore, 7 Price, 223; and ante, p. 167.

(y) Prendergast v. Devey, 6 Madd. 124.

(2) Hulme v. Coles, 2 Sim. 12; and see Stevenson v. Roche, 9 B. & Cress. 707; Jay v. Warren, 1 Car. & P. 532.

month, and that in default, execution might issue for the whole debt: and the first instalment not having been paid, the creditors made a demand on the sureties according to the terms of the bond it was held by his honor Sir John Leach, V. C., that as the sureties' liability did not arise till demand, and before demand default having been actually made by the principal debtors, so that execution might be instantly issued for the whole debt, the agreement made by the warrant of attorney was inoperative, and the sureties were noways injured, as there was nothing to interfere with their having immediate recourse to the principal debtors (a). So if a creditor accept from the principal a cognovit in an action he had brought against the principal, with a stay of execution until a day earlier than that on which judgment could have been obtained in the regular course (b):-or for paying the debt by instalments, if judgment could not have been had, and execution issued, by the time fixed for payment of the last instalment (c):-or if, during the progress of the cause, the creditor agree to give the principal a month's time to pay the debt, and the time so given would expire before judgment could by the practice of the court be obtained (d), the surety will not be discharged.

Nor can a surety claim relief, in respect of an arrangement made between the creditor and the principal, which has received the surety's sanction (e); or which having been made without the

(a) Prendergast v. Devey, 6 Madd. 124; and see Price v. Edmunds, 10 B. & Cress. 578.

(b) Hulme v. Coles, 2 Sim. 12; Stevenson v. Roche, 9 B. & Cress. 707; Stevenson v. Crease, 4 Man. & Ry. 561; and see Jay v. Warren, 1 Car. & P. 532.

(c) Stevenson v. Roche, 9 B. & Cress. 707.

(d) Whitfield v. Hodges, 1 Mees. & W. 679.

(e) Clark v. Devlin, 3 Bos. & P. 363; Tyson v. Cox, T. & Russ. 395; Cowper v. Smith, 4 Mees. & W. 519; Winckworth v. Mills, 2 Esp. 484; Duffy v. Orr, 5 Bli. N. S. 620; and see Cocks v. Nash, 9 Bing. 723; Cooling v. Noyes, 6 T. R. 263; ex parte Powell, 2

surety's knowledge, the surety subsequently approves, and confirms (f) (3): but a promise made by the surety in ignorance of the fact of his having been discharged by time having been given to the principal, will not renew the surety's liability (g).

The surety is not entitled to be discharged, in a case where the creditor has been induced to enter into an arrangement under a false representation made to him by the surety, that the creditor's rights against himself would not be injured (h) :-nor where the principal, in an interview he had with the surety, stated to him, he had been applied to by the creditor for payment, and the surety told him to see the creditor's solicitors, and do the best he could with him, and the principal afterwards arranged with the solicitors accordingly, and the arrangements were communicated to the surety, who expressed himself perfectly satisfied with them (i) :— nor where the holder of a bill of exchange, told the drawer of his intention to take a warrant of attorney from the acceptor, to which the drawer answered, "You may do as you like, for I have had no notice of the non-payment" (but which circumstance was not true); for the reply of the drawer was held to

Mont. & Ay. 533; S. C. 1 Deac. 378; Lancaster v. Harrison, 6 Bing. 726; Clift v. Gye, 9 B. & Cress. 422; Charleton v. Morris, 6 Bing. 427.

(f) Tyson v. Cox, supra; Smith v. Winter, 4 Mees. & W. 454; and see Duffy v. Orr, supra; Mayhew v. Crickett, 2 Swanst. 185;

S. C. 1 Wils. C. C. 418.

(g) See ante, p. 166.

(h) See the observation of Tindal, C. J., in Cocks v. Nash, 9 Bing. 723; and see Cooling v. Noyes, 6 T. R. 263.

(i) Tyson v. Cox, T. & Russ. 395.

(3) "If the surety afterwards" (that is, after the surety has been released by time having been given to the principal by the creditor) "make a promise to pay, he cannot object to that, as a promise without consideration: the promise is valid, not as the constitution of a but the revival of an old, debt. So when a bankrupt is discharged by his certificate, he cannot, for that reason, impeach a subsequent promise to pay a former debt, as a promise without consideration." Per Lord Eldon, C., in Mayhew v. Crickett, (supra).

new,

amount to an assent on his part, that the holder should take a warrant of attorney from the acceptor (j). But where the holder of a bill of exchange had, at its maturity, allowed the acceptor to renew it without consulting the indorser, from whom the holder received it, and the indorser afterwards met the acceptor, and was told by him that he had taken up his acceptance by another bill, which the indorser approved, and said, "It was the best thing that could be done:" such approval was held to refer to the acceptor of the bill, to whom it was evidently advantageous, and was not deemed a recognition of the act of the holder; and the indorser was held discharged (k).

But a creditor may stipulate with the principal for his right to go against the surety, and the surety's liability will remain, notwithstanding the arrangement between the principal and creditor to give the former time(); for the effect of the agreement is to save the right of the creditor to proceed against the surety, who upon paying could immediately recover against the principal; and the principal as against the surety could not insist upon the right to time given to him by the creditor, as there is the contract between the creditor and the principal for reserving the creditor's rights against the surety (m)(4): however, it should be noticed, that if time be given by deed to the principal, the reservation of the cre

(j) Clark v. Devlin, 3 Bos. & P. 363.

(k) Withall v. Masterman, 2 Camp. 179.

(1) Ex parte Glendinning, Buck, 517; Smith v. Winter, 4 Mees. & W. 454; and see Hall v. Hutchons, 3 Myl. & K. 426; and Lord El

don's observation in Boultbee v. Stubbs, 18 Ves. 20; and Duffy v. Orr, Bli. N. S. 620; ex parte Gifford, 6 Ves. 805; ex parte Carstairs, Buck, 560.

20.

(m) Boultbee v. Stubbs, 18 Ves.

(4) Lord Eldon, C., in the case of Boultbee v. Stubbs (supra), observes, that the same doctrine had been held at law, as well as in equity, but a stipulation of the kind referred to, is, in many cases, so very absurd, that it must be seen plainly.

« ΠροηγούμενηΣυνέχεια »