new arrangements, by one of which it was agreed that the grantee should not until the expiration of five years from the date of such new arrangement, or until the death of the grantor's father (which should first happen), demand or sue for the said annuity or any part thereof, and by another of the said arrangements made at the expiration of the five years (the grantor's father being then alive, and the annuity unredeemed, and the arrears unpaid), the grantor consented to receive the arrears of the annuity by instalments, the payment of them to be secured by a judgment acknowledged by the grantor: it was held, that these arrangements, and the change in the terms of redemption, had altered the situation of the surety, and that he was thereby wholly discharged, as well from all claims, in respect of the past as of the future arrears of the annuity (1). So where in an action in a replevin suit, an arrangement is made between the landlord and tenant, without the knowledge or consent of the sureties in replevin, to refer the cause to an arbitrator, and that the replevin bond shall stand as a security for performance of the award, the sureties will, it seems, be held discharged (m) (4). So if S. engages to

(1) Eyre v. Bartrop, 3 Madd.

221.

(m) Archer v. Hale, 4 Bing. 464; and see ante, pp. 177 & 178.

(4) In Ward v. Henley (1 You. & J. 285), a bill had been filed by the sureties in a replevin bond to be relieved from their liability, in consequence of transactions which had taken place between the landlord and tenant, without the sanction of the sureties. It appears from the report of the case, that on the trial of the action of replevin, a verdict was taken by agreement between the plaintiff in the action and the avowant, for the penalty of the bond, subject to a reference, not only as to the amount of the rent due at the time of the distress, but of the rent then due, and also of certain penal rents (the sureties having been no parties to such agreement).

In delivering the judgment of the court, Alexander, L. C. B. is reported to have said, "If a replevin suit (in which the only issue is, whether there was rent in arrear at the time of the distress) be referred at the trial, and by the terms of the rule of reference, the matter in difference in the cause be merely referred, the jurisdiction of the arbi

guarantee the amount of goods supplied by C. to P., provided eighteen months' credit be given, C. is not at liberty to give twelve months' credit only, and after the expiration of six months more, to call upon S. on his guarantee (n).

Connected with this branch of the subject, may be mentioned those contracts which are founded upon some statutory power, and in which the legislature has imposed the necessity of a surety or sureties being joined. In order to make the surety or sureties liable, the requisition of the Statute must be strictly pursued.

Upon the above principle, it would seem, that where commissioners are empowered under an Act of Parliament, to make an advance of money upon a certain specified security, and the act gives to the surety who is directed to join in such security crown process in the event of his being called upon to pay, if the commissioners advance the money on a security not authorized by the act, and thereby deprive the surety of the benefit which he otherwise

(n) Bacon v. Chesney, 1 Stark. 192.

trator would be confined to the issue on the record, and in such a case, he could decide only on the amount of the arrears at the time of the distress, in the same manner as the jury must have done, if the cause had actually proceeded to a verdict. In the case put, the sureties in the replevin bond would have had no ground of complaint, inasmuch as their liability, namely, the amount of the rent in arrear at the time of the distress, would not be altered, the arbitrator being substituted in the place of the jury, and the award, as well as the verdict, must have been confined to the rent originally distrained for.”

A perpetual injunction was decreed against the landlord's proceeding against the sureties in the bond, on the ground that the rent originally distrained for, (and for which only the sureties were liable), had been fully paid before the trial of the action of replevin, and therefore the above stated opinion of the learned Chief Baron, must be looked upon as extra judicial: and it would seem to be open to some doubt, whether an arrangement entered into between the landlord and tenant, by which the matter in dispute is to be referred to the decision of a single individual, which otherwise would have to be determined by a jury, is not a departure from the contract which the sureties entered into, and an arrangement by which they may be prejudiced.

would have had, if the act had been complied with, the commissioners will, as against the surety, lose the benefit of such security (o). So where two persons were appointed to fill the office of clerk to trustees under an act for making and maintaining a turnpike road, and the act directed that all contracts and agreements to be made, or entered into for the farming or letting the tolls of such turnpikeroad, should be signed by the trustees or by their clerk, and the lessee or farmer, and his sureties, of such tolls respectively and a contract for letting such tolls was entered into by one of such appointed persons, and the lessee or farmer, and his sureties: it was held, that the two appointed persons together constituted the trustees' clerk, and not one singly; and that although it was competent for the trustees to have appointed one person only as their clerk, yet, as they had in fact appointed two persons, the signature of one only was not, under the authority of the Act of Parliament, sufficient to bind the principals in a contract, and consequently could not bind the sureties (p). So where by a local statute, prior to the general turnpike act, the trustees of a turnpike-road were empowered to let the tolls, by writing, under their hands and seals, the rent to be made payable to their treasurer, in default of which every such lease should be null and void to all intents and purposes whatsoever in an action of covenant brought against the surety for arrears of rent for tolls received by the lessee, under a lease granted by the trustees subsequently to the general turnpike act, by which the rent was made payable to the trustees, or their treasurer, it was held, that the clause in the local act was still imperative, though by the general turnpike act, it is enacted, that after the tolls shall have been let as there

(0) See Lord Eldon's observation in The Bank of Ireland v.

Beresford, 6 Dow, 233.

(p) Bell v. Nixon, 9 Bing. 393.

directed, the purchaser shall enter into a proper agreement for the taking thereof, and paying the rent under such conditions, and in such manner as the trustees shall think fit, and that a lease making the rent payable to the trustees or their treasurer, was not conformable to the local act; for the direction, in the general turnpike act, that the purchaser should enter into a proper agreement, must be construed with reference to the clause on that subject in the local act, and that the lessee's surety might take advantage of the defect, though the lessee had taken the tolls for several years under the lease (q). 8. Of secret and fraudulent agreements entered into by the creditor.

(1st.) Where the surety is ignorant of the secret agreement.

(2ndly.) Where the surety is a party to such secret agreement.

(1st.) Where the surety is ignorant of the secret agreement.

It is the duty of the creditor, to put the surety in possession of all the facts likely to affect the degree of his responsibility, and any concealment of a material part of the transaction, or any secret understanding between the creditor and principal, whereby the liability of the surety may be increased, will be considered as a fraud upon the surety, and vitiate the contract (r); thus, where P., a dealer in iron, being indebted to C., a manufacturer of pig iron, for goods previously purchased of him, applied to C. for another supply, and proposed to pay him 10s. beyond the market price for every ton of iron supplied to him, which sum of 10s. was to be ap

(q) Pearse v. Morrice, 2 Ad. & Ell. 84.

(r) Pidcock v. Bishop, 3 B. & Cress. 605; S. C. 6 Dowl. & Ry. 505; Stone v. Compton, 5 Bing.

N. C. 142; and see Jackson v. Duchaire, 3 T. R. 551; Cecil v. Plaistow, 1 Anstr. 202; and Middleton v. Lord Onslow, 1 P. Wms. 768.

plied by C. in liquidation of the old debt, and C. gave his consent to this arrangement, upon having the payment secured by the guarantee of a third party, and S. became surety for the goods to be supplied, without notice of the arrangement as to the application of the 10s.: such bargain was held a fraud on the surety, and rendered the guarantee void; for the effect of the bargain would be, to compel the vendor to appropriate to the payment of the old debt, a portion of those funds which the surety might reasonably suppose would go towards paying the debt, for the payment of which he had made himself collaterally responsible, and consequently the risk of the surety would thereby be increased (s). So where S., at the request and on behalf of P., who was about to enter a house which C. had before occupied, agreed to purchase, at a certain price for P.'s benefit, the goods left by C. in the house, and C. and P. enter into a private agreement, whereby P. was to give C. an additional sum for the goods: such private agreement was held void, although it was proved that the goods were worth more than the sum for which it had been agreed they should be purchased by S., and though the bill of sale was made to S. and not to P. (t). So where P., being indebted to C. in a sum of £500, and having occasion for the loan of a further sum of money, an agreement is entered into between C. and P., that C. shall advance P. the sum of £1,500, and that C. shall thereout deduct or repay himself the sum of £500; and S., as surety for P., in ignorance of the private agreement between C. and P., and acting under the belief that P. had the benefit of the advance of the whole sum of £1,500 (when in fact the sum of £1,000 only is

(s) Pidcock v. Bishop, 3 B. & Cress. 605; S. C. 6 Dowl. & Ry.

(t) See Jackson v. Duchaire, 3 T. R. 551.