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at the same interview afterwards executed the deed in the ordinary way, without saying any thing at the time of execution, and the deed was then delivered to one of the creditors, in order that he might get it executed by the rest of the creditors: it was held, that the subsequent delivery of the deed by the surety was conditional, and that the condition previously expressed, although not introduced into the act of delivery, was sufficient to make the deed operate as an escrow only until all the creditors signed it; and as all the creditors had not executed the deed, the surety was not bound (1). In a case, however, where the defendant had levied execution against his son to the extent of 1,000l. and upwards, and the plaintiff, (who was also a creditor of the son to a considerable amount, and held securities for his debt,) alleged that the defendant's son had committed an act of bankruptcy, and that the plaintiff was in a condition to set aside the execution, and the defendant, with the view to prevent a commission being issued out against his son, which might override his execution, guaranteed the payment to the plaintiff of all sums of money as were then due from the defendant's son to the plaintiff not exceeding 600l., provided that, before the plaintiff should call on the defendant in pursuance of that guarantee, the plaintiff should avail himself to the utmost of any actual and bona fide security, lien, or deposit, by him held of the son, not including accommodation bills: it was held, that the plaintiff was not bound, by the terms of the guarantee, to commence an action against the acceptor of a bill of exchange, (which was in the plaintiff's hands at the time he received the guarantee, and of which bill the son was the drawer,) where the acceptor was, when the bill became due, insolvent, and in

(1) Johnson v. Baker, 4 B. & Ald. 440.

prison, and who had from that time, until action brought by the plaintiff upon his guarantee, remained, and was then, in prison (m).

A surety who has made himself liable to pay all sums advanced to his principal, will not be liable for monies illegally supplied to the principal; thus, if a banker advances money to his customer by honouring his drafts, which are not stamped according to the provisions of the Stamp Act (n), and in respect of which transactions the act of Parliament has declared no debt whatever shall arise; the money so supplied by the banker to his customer cannot be recovered from the surety, though the surety is under an obligation to the banker to repay him all monies supplied to his customer (o). But if a party guarantees the fulfilment of a contract in contemplation of a licence being procured, which contract, if no licence were procured, would be illegal, and a licence is subsequently procured, legalizing the contract, the guarantee is thereby made good (p). And where a trade was carried on in violation of the excise laws by the creditor, the carrying on of which was prohibited under a penalty: it was held, not to be such an illegality as to deprive the owner of the goods, who had sold them to another, of his right to recover the price against the surety, upon nonpayment by the principal; the object of the act of Parliament, which subjected the party to a penalty on commission of the act prohibited, not being for the protection of the public, but only to benefit the revenue (q).

A creditor is entitled to the benefit of all securities the principal debtor has given to his surety, as well as those which were given to the creditor by

(m) Musket v. Rogers, 5 Bing. N. C. 728.

(n) 55 Geo. 3, cap. 184, s. 13. (0) Swan v. the Bank of Scotland, 10 Bli. N. S. 627; S. C. 2

Mont. & Ay. 656; S. C. 1 Deac. 746.

(p) Timson v. Merac, 9 East, 35. Brown v. Duncan, 10 B. &

Cress. 93.

the principal (r); and if the creditor has the security of a pledge, or fund, in addition to the personal responsibility of the principal and surety, the creditor may proceed against the surety personally, without resorting in the first instance to the fund or pledge (s); and it is no defence to an action at law against the surety, upon his personal security, that a fund has been provided for the debt of the principal, to which the creditor may resort for payment; though upon payment by the surety to the creditor of the debt of the principal, or on its being secured, the creditor will be compelled to proceed against the fund or pledge for the surety's benefit (t).

Where an action was brought against the surety on a bond, conditioned for the performance of the covenants in a lease, in which was a proviso, that if the rent should be in arrear a certain time, whether demanded or not, the lease should be null and void; and the lessee purposely suffered the rent to be in arrear beyond the time, and then paid it, and afterwards finding that his lease was a disadvantageous one, gave a regular notice to quit, contending that his lease had become void, and that he was tenant from year to year only: the Court of King's Bench held, that the lease was voidable only, and had been set up again by the subsequent payment of rent, and therefore that the defendant, although merely a surety, was liable for breaches of covenant committed by the lessee subsequently to the expiration of the notice to quit (u).

(r) Maure v. Harrison, 1 Eq. Ca. Ab. 93; and see the observations of Sir William Grant, M. R., in Wright v. Morley, 11 Ves. 12.

(s) See Folliott v. Ogden, 1 H. Blk. 123; and Lord Eldon's judgment in Wright v. Simpson, 6 Ves.

714;
but see Wright v. Nutt, 3
Bro. C. C. 326; Š. C. 1 H. Blk.
136.

(t) See Lord Eldon's observations in Wright v. Simpson, supra. (u) Read v. Farr, 1 Saund. 287 d. n. (q), 5th ed.

In cases of fraud (v), accident (w), or mistake (x), equity will, it seems, relieve, as well against the surety, as against the principal. If the instrument, upon which the liability of the surety arises, is a bond for the payment of money, and the same happens to have been lost (y), equity will, if any money is due upon the bond (2), set up the debt against the surety, though the principal may be out of the jurisdiction (a); requiring, however, for the surety's protection, that the obligee give him a proper and effectual indemnity against all claims and demands, costs, and expenses, consequential upon its loss.

A strong case, however, must (it would seem) be made to extend the liability of the surety (who derives no benefit from the transaction) beyond the legal obligation of the instrument by which he has bound himself, and to show that the instrument was intended to be other than what it is (b). Where a joint promissory note was made by A., B. and S., and S. was described upon the note as "surety,' Lord Eldon considered the creditor, after S.'s decease, had no claim against S.'s assets, (S. having died in the lifetime of A. and B.) there being no ground for assuming that the intention of the par

(v) See Brown v. Savage, Rep. temp. Finch, 184; and the observation of Lord Hardwicke, C., in Skip v. Edwards, 9 Mod. 438.

(w) See the observation of Lord Hardwicke, C., in Skip v. Edwards, supra; the East India Company v. Boddam, 9 Ves. 464; Underwood v. Staney, 1 Ch. Ca. 77.

(x) Crosby v. Middleton, 3 Ch. Rep. 55; S. C. Pre. Ch. 309; S. C. 2 Eq. Ca. Ab. 188; Speering v. Lynn, Pre. Ch. 115; S. C. 2 Vern. 376; and see Rawstone v. Parr, 3 Russ. 424 & 539; ex parte

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Symonds, 1 Cox, 200; and the observation of Lord Hardwicke, C., in Skip v. Huey, 3 Atk. 91.

(y) The East India Company v. Boddam, supra; Underwood v. Staney, supra; Sheffield v. Lord Castleton, 1 Eq. Ca. Ab. 93.

(2) Underwood v. Staney, supra; ex parte Symonds, supra.

(a) The East India Company v. Boddam, supra.

(b) Rawstone v. Parr, 3 Russ. 424, 539; Wright v. Russell, 2 Blk. 934; S. C. 3 Wils. 530; Simpson v. Field, 2 Ch. Ca. 22.

ties would be carried into effect, by making the note several, as well as joint (c) (1).

Where a person signed and sealed a bond as surety for his principal, but by mistake of the clerk who drew the bond, the surety's name was not inserted in it, equity would not permit the surety to avail himself of that circumstance, but held him liable to the obligation by his signing and sealing (d). So in furtherance of the obvious intent of the parties, even a blank may be supplied (e) (2) ; or, if a word is introduced into the instrument which has no meaning, it shall not vitiate the instrument, but an averment will, even in a court of law, be admitted to correct the defect (ƒ). But if the word has a meaning, it cannot be averred at

(c) Rawstone v. Parr, 3 Russ. 539, overruling the judgment of Sir John Leach, M.R., in S. C., 3 Russ. 424.

(d) Crosby v. Middleton, 3 Ch. Rep. 55; S. C. Pre. Ch. 309; S. C. 2 Eq. Ca. Ab. 188; and see

Longden v. Goole, 3 Lev. 21.
(e) Coles v. Hulme, 8 B. & Cress.
568.

(f) Anon. 2 Freem. 16; Simms v. Barry, Rep. temp. Finch, 413; S. C. nom, Sims v. Urry, 2 Ch. Ca.

225.

(1) No case has hitherto occurred, which the author has been able to discover, where equity has varied the legal effect of the instrument so as to charge the surety.

In those cases where an instrument, which in its form was joint, has been made joint and several, the parties have participated in the consideration. (Bishop v. Church, 2 Ves. 100, 371; Simpson v. Vaughan, 2 Atk. 31; Thomas v. Frazer, 3 Ves. 399; Burn v. Burn, 3 Ves. 573; and see the observations of Sir Wm. Grant, M. R., in Sumner v. Powell, 2 Meriv. 30.) In Wright v. Russell, (3 Wils. 530,) the Court observed, that "courts of equity are favourable to sureties, for where they are not strictly bound at law, a court of equity will not bind them;" and in Simpson v. Field, (2 Ch. Ca. 22,) it is stated, that "where a surety is not liable at law, he shall not be made liable in equity.' It is submitted, however, that these opinions must be taken with the above qualifications.

(2) A rather whimsical illustration may be given, of the respect the Court pays to the intention of the parties, in the following passage from Hookes v. Swaine, (1 Sid. 151)-" Et Twisden, Justice, dit que il remember tiel nice case, quel fuit que Sir William Fish fuit oblige per obligation pur pay_tiel jour, in Gray's Inn Hall, fifty pounds (sans dire de argent). Et pur ceo sur le jour quant les Gent'homes fueront al supper, il vient et tender fifty pounds weight de stone, et adjudge nul tender."

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