cipal, the bill would have been paid, if a demand for payment had been made upon him (a).

If the security in the hands of the creditor is a bill of exchange, or promissory note, to which the surety is not a party, and such bill, or note, is not paid at its maturity, it is no objection by the surety, against the creditor's recovering upon his guarantee (if the creditor has so acted, that his rights to proceed against the parties to the bill, or note, or the rights of the party giving the instrument of suretyship have not been affected), that the surety had not notice of its non-payment (b); for notice is only required by the custom of merchants to be given to him, who is a party to the bill, or note, and as the surety has not made himself subject to the obligations of the law merchant, and therefore not liable to be sued upon such bill, or note, so neither ought he to be entitled to the advantages. And even where the surety is a party to a bill of exchange in the hands of a creditor, he may by his undertaking waive the formalities which the law imposes upon the holders of bills of exchange; namely, a due presentment to the acceptor, and a notice of dishonour to the drawer, and indorsers; thus, where D. and I. had delivered, and indorsed, to the creditor, a bill of exchange drawn by D., and accepted by A., and D. and I. join in executing a bond to the creditor, the condition of which was (after reciting the above circumstances), that if the bill for the payment of which by the acceptor, D and I. had become_sureties, be not paid by the acceptor when due, D. and I. would pay the bill within one month after it became due, and was not paid by the accep

(a) See Lafitte v. Slatter, 6 Bing. 623; Warrington v. Furbor, 8 East, 242; S. C. 6 Esp. 89; Holbrow v. Wilkins, supra; and the observation of Lord Ellenborough in Claridge v. Dalton, 4 M. & Sel. 226.

(b) Swinyard v. Bowes, 5 M. & Sel. 62; Van Wort v. Woolley, 3 B. & Cress. 439; S. C. 5 Dowl. & Ry. 374; and see the observation of Grose, J., in Warrington, v. Furbor, 8 East, 242.

tor the intention of the parties to the bond was held to be, not to give the creditor a security of a higher nature in case the ordinary formalities had been complied with, but to exonerate the creditor from the risk of neglecting to present the bill to the acceptor, and giving notice to the parties to the bill of its dishonour (c): which laches on the part of the creditor would have discharged the sureties, if no bond had been executed.

7. Where the creditor does not properly perform on his part, or where he varies, the original agreement (d).

Any variation in the agreement, to which the surety has subscribed, which is made without the surety's knowledge or consent, which may prejudice him (e), or which may amount to a substitution of a new agreement for the former agreement (ƒ), and though the original agreement may, notwithstanding such variation, be substantially performed (g), will discharge the surety; thus, where a bill of exchange was drawn by C. in England, on P. in India, payable sixty days after sight, and a bond was entered into by S. conditioned to be void if the bill should be paid in India, or paid in England by the obligor, within thirty days after the bill should be produced to him after being sent back here duly protested for want of payment, and the bill was transmitted to India, and when it arrived there the drawee had left the place, and his agent refused to accept it, and the bill was then

(c) Murray v. King, 5 B. & Ald. 165; and see Lord Thurlow's observation in ex parte Mure, 2 Cox, 63.

(d) The observations that have been made under the head, "Where the Creditor gives time for payment to the Principal," (see ante, p. 167), might have been, it is conceived, introduced with propriety into this section; for giving time is one mode of varying

the original agreement: the separation has been made with a view to a more easy reference.

(e) Evans v. Whyle, 5 Bing. 485; S. C. Mood. & M. 468; Eyre v. Bartrop, 3 Madd. 221; Archer v. Hale, 4 Bing. 464.

(f) Whitcher v. Hall, 5 B. & Cress. 269; S. C. 8 Dowl. & Ry.

22.

(g) Whitcher v. Hall, supra.

protested in India for non-acceptance, and sent back to England so protested: it was held by the Court of King's Bench (overruling the same case in the Court of Common Pleas), that notwithstanding all the care that could be taken had been taken, to enforce the payment of the bill by C. from P. in England, after it had been so returned, and had been presented to him, and protested for non-payment here, and notwithstanding there was no reasonable expectation of any person being in India during the sixty days after it had been so protested for non-acceptance, that would have paid the bill at the end of that time, yet, inasmuch as the conditions upon which S. when applied to, to come and add his security to that of the bill, and for which when he entered into that security he expressly stipulated, had not been complied with, the obligor was not liable (h). So in a case where C. contracted to let, and P. to take, the milking of thirty cows at the sum of 77. 10s. per cow per annum, the benefit of which was to enure to P., but S., as P.'s surety, stipulated that he would pay the rent, and it was afterwards agreed between C. and P. (the latter having then thirty-two cows), that C. instead of taking away two cows at that time, should be at liberty to take four at the fall of the year, and accordingly C. did, at the fall of the year, take away four cows, leaving P. after that period less than thirty: it was held by Bayley and Holroyd, Justices (Littledale, J., dissenting), that the contract was an entire contract for the letting of thirty cows, neither more nor less, -that the expression of 71. 10s. per cow, did not make the contract a divisible contract, for that had reference only to the measure of the rent, not to the nature of the contract,-that C., in an action against S., was bound to prove a literal performance

(h) Campbell v. French, 6 T. R. 200, overruling French v. Campbell, 2 H. Blk. 163.

P

of the contract,-that he had not done so, inasmuch as he had shown that during part of the year he had allowed P. to have twenty-eight cows only, and although it was proved by P., that this new agreement as to the number of cows which he was to have from time to time, made no difference as to profit or loss, and that during the whole period of his occupation, he had had upon an average, the milking of thirty cows, yet, as S. had not been consulted upon the subject, and had had no opportunity of exercising his own choice and judgment in the matter, the substitution of the new agreement put an end to the original one, and relieved S. from his engagement (i).

Where an agreement was entered into between C. and P., whereby it was agreed that P. should perform certain works for C. for the sum of 10,000l., and should receive from time to time, three-fourths of the cost of the part completed, the first payment to be made after one-eighth was performed, and the remaining fourth part to be paid one month after the whole was completed, and that if P. should fail to perform the work, C. might employ others to perform it, and deduct the expense from the sum payable to P and P. having performed a part of the work at an expense which was estimated at 50007., and having received from C. at various times whilst he was engaged upon the works, sums of money amounting to 80007., abandoned the undertaking, and C. thereupon caused the works to be completed at an expense of 4000l. a court of equity, upon the application of a surety (who had entered into a bond conditioned for the performance of the works by P.), granted a perpetual injunction against any proceeding by C. on the bond, notwithstanding C. had, in a court of law, in an action brought by him against the surety upon the bond, (i) Whitcher v. Hall, supra.

(suggesting the loss sustained by C. from the breach of the contract by P.,) obtained a verdict for nominal damages; for the money payable under the contract to P. by way of instalment, added to the sum afterwards paid for the completion of the work, was less than the sum, which if P. had performed all the contract, C. would have to pay him, and the loss had arisen, not from the non-performance of P.'s contract, but from C.'s having advanced more than the contract required (j).

Where the condition of a bond, after reciting that C., the obligee, was a banker, and that P., a paper manufacturer, kept an account with C. which had been overdrawn to the amount of 4000/., and that in order to enable P. the better to carry on his business, he had applied to C. to allow him for a time to overdraw such further sums as he should require, so as that the same, together with the 40007., should not exceed in the whole at any one time 50007., which C. had agreed to do, was, for the payment by P., and S. as his surety, or one of them, of the sum of 4000/., and also such further sums as C. should or might thereafter advance to P. in the course of his business, not exceeding in the whole 5000l. was held not to be avoided by C. having allowed P. to overdraw to an amount together with the 4000l. exceeding 5000/; for the condition did not restrict C. from making P. advances beyond the 5000l., but simply limited the liability of S. to the 5000l., however large the advances might be (k). Where an annuity had been granted with liberty for the grantor or his surety to redeem it upon the payment of a certain sum, after giving the grantee notice of such intention, and the grantor and grantee unknown to the surety subsequently entered into

(j) Calvert v. The London Dock Company, 2 Keen, 638; S. C. nom. Warre v. Calvert, 7 Ad. & Ell. 143.

(k) Parker v. Wise, 6 M. & Sel. 239; and see ex parte Rushforth, 10 Ves. 409; Paley v. Field, 12 Ves. 435.