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was held good, though it did not show what necessaries in particular the plaintiff had provided for him (r).
In an action upon a bond given by the defendant a surety, conditioned for the principal's duly rendering an account of all monies received by him as collector of the poor's rates, it was held, that the office being a voluntary one, and not cast by law on the defaulting party, it was necessary to aver, not only an appointment, but an acceptance by the person appointed (s). And in an assumpsit against the defendant upon his collateral promise, that he would pay the debt of a third party, provided the plaintiff would give such third party a certain time to pay the debt, it was held, that the plaintiff ought to have alleged the consideration was performed on his part, by giving the party the time required (t): but the creditor need not show how the debtor became indebted to him; for the defendant, by procuring at his request the forbearance of the debt, is a sufficient acknowledgment that it was due (u).
The plaintiff must prove at the trial the averments contained in the declaration (v), and in an action against the surety upon his collateral promise, he must prove (although he need not in his declaration allege it to have been so) (w), that the contract was in writing, and signed by the defendant, or by his agent lawfully authorized (x): unless indeed the defendant has, by his pleading, dispensed with such proof (y); as where the surety, in an action brought (r) Cryps v. Baynton, 3 Bulstr. Camp. 242; S. C. nom. Stadt v. against him upon his contract, pleads a tender (2), or pays money into court (a); for thereby he admits the contract, and the creditor's right to sue on it, and its proof becomes unnecessary.
Lill, 9 East, 348. (s) Serra v. Wright, 6 Taunt. (w) Supra.
(w) Anon. 2 Salk. 519; Lilley (t) Anon. Godb. 13, pl. 20 ; v. Hewitt, 11 Price, 494. Rogers v. Snow, Dalis. 94, pl. 17. (y) Middleton v. Brewer, Peake,
(u) Lingen v. Broughton, 3 15; Kay v. Groves, 4 Car. & P. Bulstr. 206.
72; Gutteridge v. Smith, 2 H. (v) i Stark. on Evidence, p. Blk. 374; and see Israel v. Bena 394, ed. 1833; Lysaght v. Walker, jamin, 3 Camp. 40. 5 Bli. N. S. 1; Stapp v. Lill, 1
Where the plaintiff was applied to, to lend money to P., and the plaintiff requested a firm of which he was a member to do so, and they advanced the money, debiting P. in their books, it was held, that the plaintiff could not maintain an action against S., who had guaranteed the repayment of the money to be advanced to P. by the plaintiff
, since the declaration stated that the plaintiff advanced the money, whereas the proof was that the firm did so (6): had the plaintiff borrowed the money of his partners, and then advanced it to P., the action would have been rightly brought (C).
It would seem, that the principal debtor is a competent witness for the creditor, in an action brought by the latter against the surety; for in the event of the suit he stands indifferent; being liable on the one hand to the creditor if the action fails, and to the surety if the action succeeds (d) (1). So entries made by the principal, in a book proved to have been in his possession at his death, acknow
(2) Middleton v. Brewer, supra. (c) Per Abbot, C. J., in ib.
(a) Kay v. Groves, supra ; Gut- (d) Collins v. Gwynne, 9 Bing. teridge v. Smith, supra.
544; and see Middleton v. Melton, (6) Garrett v. Handley, 3 B. & 10 B. & Cress. 317; Goss v. WatCress. 462; S. C. 1 Car. & P. lington, 3 Brod. & B. 132; Whit483.
George, 8 B. & Cress. 556. (1) Where P., together with A. and B., as his sureties, executed a bond to C., for securing to him a sum of money and interest, and A. by the order and with the money of P., paid off the principal and interest due on the bond, which was thereupon delivered up to A., who, after keeping it in his custody some time, prevailed upon C. to assign it to J. S. as a collateral security for A.'s own debt, C., however, informing J. S. at the time, that nothing was due upon the bond : in an action brought against B. upon the bond, it was held, that A. was a competent witness, though particeps criminis, to prove payment to the obligee, and the fraudulent assignment of the bond to J. S.; inasmuch as A.'s evidence operated to his own prejudice, he remaining liable to the assignee of the bond (May v. Harman, 4 Bro. P. C. 156).
ledging the receipt of monies, for the due accounting for which the surety was responsible, are, after the principal's death, admissible in evidence in an action against the surety (e); upon the general principle, that they were entries made by a party cognizant of the facts, and were against the interest of the party who made them. And it is immaterial whether the book containing the entries, is one which it was the principal's duty to keep, and for the performance of which duty, the surety bad become bound (f):-or whether it is a mere private book of the deceased principal, and one which he was under no obligation to keep (g) :or even where the parties, who had paid the principal the monies in question, were alive and might have been called as witnesses (h); for if the admissions are evidence of the facts admitted, it can make no difference that the same facts may be proved by evidence of another kind. But the admissions of the principal are not, while he is alive, sufficient to charge the surety, the evidence not being the best the case is capable of affording (*) (2).
(e) Goss v. Watlington, 3 Brod. (h) Middleton v. Melton, supra. & B. 132; Whitnash v. George, (i) Evans v. Beattie, 5 Esp. 26 ; 8 B. & Cress. 556; Middleton v. Bacon v. Chesney, 1 Stark, 192; Melton, 10 B. & Cress. 317. Cutler v, Newlin, Man. Dig. tit. (f) Goss v. Watlington, supra ;
Evidence, pl. 253; and see Hart Whitnash v. George, supra.
y. Horn, 2 Camp. 92. (9) Middleton v. Melton, supra.
(2) In Ward v. Suffield (5 Bing. N. C. 381), the declaration stated, that the plaintiff was about to employ an agent for the sale of turpentine and certain other property, and that in consideration the plaintiff would employ one Henry New as his agent to collect his debts, the defendant undertook and promised the plaintiff to be responsible to him, for all sums of money which New might receive as the plaintiff's agent, not exceeding the sum of 2501.; and then alleged that New did not pay over what he had received.
At the trial, after the defendant's signature to the guarantee had been proved, and that a Mr. Bradley was also a surety for New, the plaintiff gave in evidence the following letter from his attorney to the defendant:
:-“On the other side you have accounts between Ward and New, as agreed to by the latter, by which a balance of 183l. 9s. 2d. is due to Mr. Ward, with some slight deductions for postage, &c., Nov.
If the defendant's bail be a material witness for him in the action, the court will, upon the application of the defendant previous to the trial, order the name of such bail to be struck off the bail piece, upon the defendant's inserting the name of other bail in his room (j):-or will, at the trial, make the bail a competent witness upon the defendant's depositing in the hands of the officer of the court, a sum equal to the sum sworn to and the costs of the action (k) (3).
(j) Collet v. Jennis, Rep. temp. (k) Baillie v. Hole, 1 Mood. Hardw. 133.
& M.289; S. C. 3 Car. & P. 560.
8th, 1837 ;” and the defendant's answer to such letter, which was as follows:“In reply to yours of this morning, I have to inform you that I have sent by this evening's post to Bradley for his share, which, when I have received, I will remit with mine to Mr. Wurd.”
The defendant declining to produce the account sent to him, a witness named Lang then proved that he and New together had gone over an account, and that New admitted it to be correct. Another witness identified the account which New had gone over as a duplicate of that sent to the defendant.
On the part of the defendant it was objected, that New being alive, the declaration made by him to Lang was not admissible in evidence, New himself ought to have been called.
The learned judge, before whom the cause was tried at Nisi Prius, admitted the testimony of Lang, and left it to the jury to say, whether the paper produced by him was the account agreed to by New. A verdict was found for the plaintiff, which the court of Common Pleas afterwards refused to disturb. Tindal, C. J., in his judgment said, “ It is true, that when the principal debtor is alive, his declarations are not evidence against his surety, but the account which New had examined and assented to as a correct statement of the account between him and the plaintiff, was, under the circumstances of this case, evidence against the defendant, and the object of calling Lang was only to identify that account.” And Erskine, J., said, “I am of opinion the evidence was properly received, the defendant having declined to produce the account sent to him, the correctness of which, as agreed to by New, he had admitted in his letter of the 8th of November, secondary evidence of the account was produced by Lang. If the testimony of Lang had been left to the jury, as proving the amount agreed to by New, I should have thought there might have been ground for a new trial : but the question was, whether the account produced by him was that which the defendant admitted New had agreed to?"
(3) So if a surety in a replevin bond, is a material witness for the plaintiff in the cause, the court will allow another surety to be substituted in his stead, on his being approved of by the prothonotary,
Where the instrument of suretyship is a bond, the surety cannot, in an action brought against him on it by the creditor, upon a plea of non est factum, go into evidence to prove the illegality of the consideration, where such illegality does not appear upon the face of the instrument (1) :-or that the defendant was misled as to the legal effect of the bond (m) :or that the bond was obtained by fraud (n) ;
but these facts must be specially pleaded (O). Neither can the surety, where the instrument of suretyship is a bond, or other instrument under seal, go into evidence to show that he is discharged from his liability, by reason that the creditor had, by parol, given time for payment to the principal, without the knowledge of the surety (P); since it is a rule in law, that an instrument under seal cannot be discharged by parol (9): but the surety must, in order to avail himself of such evidence, have recourse to a court of equity for relief (4).
(1) Harmer v. Rowe, 6 M. & (n) Edwards v. Brown, supra. Sel. 146; Harmer v. Wright, 2 (0) And see White v. Ansdell, Stark. 35; Colton v. Goodridge, 1 Mees. & W. 348. 2 Blk. 1108.
(p) Davey v. Prendergrass, 5 (m) Edwards v. Brown, i Cr. B. & Ald. 187. & J. 307.
(q) See ante, p. 187.
and giving the defendant's attorney notice to appear before him to oppose such approval; as in case the surety so substituted should be insufficient, the defendant would be deprived of his remedy against the sheriff on the bond (Bailey v. Bailey, 1 Bing. 92 ; S. C. 7 J. B. Moo. 439; and see Baillie v. Hole, supra).
(4) In Hough and another v. Warr (i Car. & P. 151), an action was brought on a bond against the defendant, as surety for the collector to the Bloomsbury Dispensary, of which the plaintiffs were the treasurers. The defendant pleaded the general issue.
A witness proved the execution of the bond, and the collector himself proved his being a defaulter to the amount of between 2001. and 3001.
The defendant's counsel inquired whether his lordship thought a letter addressed by the defendant to the committee of the Dispensary, previous to the deficit, stating that he should not consider himself bound after the date of that letter, and that he had informed the collector of such his determination, could avail him in that action, or whether he must go into equity for relief? Per Abbott, C. J.,“ I think