subject. The well-known rule of law is, that, if the creditor, without the consent of the surety, enters into contract whereby time is given to the principal debtor, the surety is discharged; because the law has imposed upon him the duty of using due diligence against the principal, and at all events precludes him from giving time by a binding contract. That is a perfectly well-known doctrine, arising out of the trilateral contract of suretyship. Two cases have been cited where this right of the surety was created at the time the liability was incurred. One of these was Watts v. Shuttleworth, 5 Hurlst. & N. 235.† There, Watts entered into a contract with Harrap for the completion of certain warehouse fittings for a given sum, to be paid by instalments as the work proceeded. Watts undertook to insure the fittings against fire at such time and for such amount as the architects might consider necessary. Shuttleworth became surety for the due performance of the work by Harrap, knowing that Watts had undertaken to insure. After Watts had made considerable advances, an accidental fire destroyed fittings to a large amount in Harrap's workshops, which the plaintiff had omitted to insure. Harrap becoming insolvent and unable to complete *the work, Watts sued Shuttleworth on his [*809 guarantee. The defence set up by Shuttleworth was, that, if Watts had insured according to his undertaking, peradventure Harrap might have performed his contract, that it was a condition of his liability as surety that Watts should insure, and that he was damnified by the non-performance of that condition. The question was whether Watts's laches discharged Shuttleworth in toto: and the Court held that it did; that it was not a question how much the surety was damnified; but that the engagement of Watts to insure was the condition upon which Shuttleworth consented to become surety; and that the omission to perform that condition discharged him. The same principle is recognised in Watson v. Alcock, 22 Law J., Ch. 858. The Craven Bank had been applied to by Watson Jun., to lend him a sum of money, which they agreed to do upon Watson Sen. agreeing to become surety. Part of the agreement was that the bank should take from Watson Jun. a warrant of attorney, upon which a judgment was to be entered up, and which the bank engaged to enforce upon receiving notice so to do from Watson Sen. The bank accordingly took a warrant of attorney, and, upon receiving notice, put it in force against the goods of Watson Jun. Watson Jun. having become bankrupt, his assignees, discovering that the warrant of attorney had not been filed within the time required by the statute, brought an action against the bank, and recovered the value of the goods so seized, on the ground that the warrant of attorney was void. And the Lords Justices were of opinion that it was a condition of the father's liability that the bank should take from the son a valid warrant of attorney; and that their omission to do so relieved him from liability as surety. No question was raised there whether the goods taken would have sufficed to satisfy the debt. But it was held that the non-performance of the

condition released the surety. This case has been very ably [*810 argued on both sides: but I feel bound to say that Mr. Brown's argument has satisfied me that the defendant is entitled to judgment.

WILLIAMS, J.-I am of the same opinion. It appears from the averments in the plea the validity of which is in question, that, upon the

occasion of the defendant becoming surety for Evison, he said to the plaintiff, "I will consent to become surety for Evison, but only upon the understanding that the money shall be called in within three years from the date of the note," or, in other words, "I will not guaranty his solvency for an indefinite time, but only for three years." The creditor allows the three years to go by, and does not demand payment. The plea discloses the additional fact that by the delay the creditor had lost the means of obtaining payment from the principal debtor, who had become insolvent; which makes it incumbent on the defendant (if material) to show that Evison was solvent during the period of three years from the date of the note, and had since become insolvent. The only difficulty I have felt arises upon the argument of Mr. Kemplay, that the undertaking of the creditor to call in and demand payment of the note within three years is not a general incident of the contract of suretyship, like the obligation not to give time to the principal debtor, but is a special incident of this particular contract, and therefore the subject of a cross-action. But I am relieved from that difficulty by the case of Watson v. Alcock, 22 Law J., Ch. 858. In that case, upon the taking of a guarantee for the repayment of advances to a customer, a banker took from the customer a warrant of attorney to secure the debt, and entered into an agreement with the surety that he (the banker) would, at any time when

*811] requested by the surety, enter up judgment and levy execution

against the customer, the principal debtor, on the warrant of attorney. The surety made a request to that effect, and the banker took the goods of the customer in execution to an amount sufficient to satisfy the debt. On the bankruptcy of the customer, the assignees brought an action against the banker for the value of the goods, and obtained a verdict in consequence of the banker's having neglected to comply with the requirements of the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), by not filing the original warrant of attorney or a true copy in proper time. And it was held by the Lords Justices that the neglect of the banker operated as a discharge of the liability of the surety. The only difference between that case and the present, is, that, in Watson v. Alcock, the contract by which the banker undertook to enforce the warrant of attorney was one to which the creditor, the debtor, and the surety were all parties; whereas, here, the debtor was no party to the memorandum. But I do not think that makes any real difference in principle: and the case of Watson v. Alcock at all events shows that a Court of equity will relieve the surety, where the creditor has failed to perform the condition which was the consideration for the surety's entering into the liability, and the latter has sustained prejudice therefrom. I think it is impossible to say, that, if the facts disclosed by this plea are true, the surety has not been prejudiced. Judgment for the defendant.

The issues of fact came on to be tried before Erle, C. J., at the sittings in London after last Hilary Term, when the learned Judge allowed the defendant to add *a fourth plea to the first count, *812] to the following effect,-That he the defendant made the said note jointly with one John Evison, for the accommodation of the said John Evison, and as his surety only, to secure payment of a loan of

2007. then made by the plaintiff to the said John Evison, with interest thereon, and that, at the time of the said note being made and signed by the defendant and the said John Evison, a memorandum was by agreement between the plaintiff, the said John Evison, and the defendant, endorsed upon the said note, and signed by the said John Evison, which said memorandum was in the words following, that is to say, "Memorandum: This note is to be paid off within three years from date: John Evison:" and the defendant says that the plaintiff did not compel payment of the said note within the said period of three years, which elapsed before the commencement of this suit.

A verdict having been found for the plaintiff on the first three issues, and for the defendant on the fourth,

Macaulay, Q. C., in Easter Term, obtained a rule calling upon the defendant to show cause why the plaintiff should not have judgment for 2147. debt and costs upon the verdict found for him upon the first three issues on the trial, pursuant to leave reserved, and why the plea added at the trial should not be struck out, or why the plaintiff should not have judgment for the said debt and costs notwithstanding the verdict found for the defendant on the issue on that plea, on the ground that the same was bad in law.

Field showed cause.-The omission on the part of the creditor to call in the money from the principal debtor at the stipulated time, affords a good answer in *the mouth of the surety in equity as well as at law: Watson v. Alcock, 22 Law J., Ch. 858; [*813 Pooley v. Harradine, 7 Ellis & B. 431 (E. C. L. R. vol. 90); Watts v. Shuttleworth, 5 Hurlst. & N. 235.t [ERLE, C. J.-An agreement to give time, whereby the creditor binds himself to hold his hand, discharges the surety. To make the added plea a good answer, must you not make out that the creditor stipulated that he would call in and demand payment of the note at the end of the three years?] Looking at the surrounding circumstances, and at the decision of the Court upon the third plea, it is submitted that the plea now before the Court affords a good answer to the action. [WILLIAMS, J.-No leave was reserved to strike out the fourth plea; and the rule does not ask for a new trial on the ground that the verdict was against the evidence: we can therefore only look at the record, and consider whether the plea, assuming it to have been proved in the way most favourable to its validity, is an answer to the action. BYLES, J.The material allegation in the lea which was before the Court on demurrer is not in this plea, nor is there anything tantamount to it. If the memorandum had been signed by all the parties, it would have converted the note into a note payable in three years, and then there can be no pretence for saying that there was any obligation on the payee to sue upon it at once.] The note still remains a note payable on demand. The contract is not altered by the endorsement. The obligation on the part of the plaintiff to cause the note to be paid off within three years is independent of the contract on the face of the

note.

Flower (with Macaulay), contrà, was not called upon. ERLE, Č. J.—I am of opinion that the fourth plea *which was added at the trial does not disclose any valid defence to the action. If it had been shown that there was any agreement between

[*814

the plaintiff and the defendant and Evison to the effect stated in the plea which was before us on demurrer, the defendant might have established a good defence: but all that appears here is, that the defendant signed the note as surety for Evison, that by agreement of the parties a memorandum was at the time endorsed on the note, "This note is to be paid off within three years from date," and that the note was not enforced against Evison within the three years. All that I can understand from the memorandum is, that Evison held out a hope to the plaintiff and the defendant that he would be able to pay off the loan within the time mentioned. I cannot construe it as an engage ment on the part of the plaintiff that he would at the end of the three years bring an action against Evison if the note then remained unpaid. It appears to have been a friendly transaction. The memorandum amounts to no more than an intimation of a mutual understanding, that, although the note upon the face of it purported to be payable on demand, it was to be understood that three years' time was to be given. There is no obligation on the plaintiff to bring an action against the principal debtor at the end of the three years if the whole amount advanced by him on the note was not paid off within that time. Short of that, the plea affords no defence. The plaintiff must therefore have judgment for the whole amount of debt and costs notwithstanding the verdict on the issue on the fourth plea.

WILLIAMS, J.-I am of the same opinion. A verdict was taken for the plaintiff at the trial on all the issues except on that joined on the plea which was allowed to be added. That being so, and *815] there being no leave reserved to move to strike out the plea. and no application to have a verdict on that plea for the plaintiff, or for a new trial, the question reduces itself simply to a motion for judgment non obstante veredicto. All we can do, therefore, is to look at the record, and see whether, notwithstanding the verdict for the defendant, the plaintiff is entitled to judgment on that plea. As we cannot for that purpose look out of the record, we are bound to assume that the plea was proved in such a sense as will support the verdict if by any evidence of the surrounding circumstances the memorandum set out in the plea could be read so as to amount to a defence. I think it is impossible to imagine any state of circumstances which could make this amount to a good plea. It could only be so if it could be read as disclosing an agreement on the part of the plaintiff that he would sue the principal debtor in the event of the note remaining unpaid at the expiration of the three years. I think it is impossible to say that it does amount to such an agreement, and therefore that it affords no answer.

WILLES, J., concurred.

BYLES, J.-I am entirely of the same opinion. I was no party to the decision upon the demurrer to the third plea: but it seems to me that the decision was strictly correct. The plea on that occasion alleged an agreement between the plaintiff, the defendant, and Evison, that the amount of the note should be called in and demanded at the end of three years, and then alleged a breach of that agreement, and a damage resulting to the defendant. All that is wanting here. The memorandum set out in the fourth plea does not purport to be a con

tract by the defendant with the *creditor at all. It is evidently [*816 a mere agreement between the principal debtor and the surety that the former will pay off the advance within three years. It is impossible to come to any other conclusion than that this is a bad plea. Rule absolute accordingly.

NAEF and Another v. MUTTER. May 27.

A writ of summons having been issued against a person who professed to carry on the business of a carrier in London, having an office and an agent there who received and forwarded goods to all parts of the kingdom, a Judge at Chambers,-upon an affidavit stating these facts, and that a copy of the writ had been served upon the agent, and alleging that the plaintiff had made all reasonable efforts and used all due means in his power to serve the defendant personally, but had not been able to do so, and that he verily believed that the writ had come to the knowledge of the defendant, and that he evaded service thereof,-made an order for leave to proceed, under the 18th section of the Common Law Procedure Act, 1852:

The Court refused to set aside the order, upon a mere affidavit by the agent (the defendant himself making none), that the defendant, at the time of the commencement of the action, and long prior thereto, was and still remained resident at Edinburgh, out of the jurisdiction of this Court, and had no residence except in Scotland, and did not and never did reside at the London house, which was only a branch-office for the receipt and despatch of goods,-not being satisfied that the defendant was not in London at the time of the issuing of the writ.

Whether the order might not under the circumstances have been sustained, even if it had clearly appeared that the defendant actually resided and was in Scotland at the time of the issuing of the writ,-quare.

THIS was an action against the defendant, a general carrier and forwarding agent carrying on business at No. 38, Watling Street, in the city of London, and elsewhere, under the style and firm of Thomas Howey & Co., to recover the value of a bale of silk (3751.) which had been delivered by the plaintiff's agent in London to the defendant's agent at 38 Watling Street, to be forwarded, but which bale had been lost.

The writ of summons was issued on the 12th of March last, and repeated efforts had been made to serve the defendant at 38 Watling Street, but he could never be found, and his attorneys, to whom application had been made for an undertaking to appear to the writ, had refused to do so.

Upon an affidavit of these facts, and alleging that the deponent had made all reasonable efforts and used *all due means in his

power to serve the defendant personally with a copy of the [*817 said writ, but had not been able to do so: and that he verily believed that the writ had come to the knowledge of the defendant, and that he evaded the service thereof,—the plaintiff obtained from Willes, J., an order for leave to proceed, pursuant to the 18th section of the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76.

An application was afterwards made to Byles, J., at Chambers, to rescind the order; but he referred the parties to the Court, with liberty to the defendant to file further affidavits.

Francis accordingly moved to set aside the order of Willes, J., upon the ground that the learned Judge had no jurisdiction. The affidavits upon which the motion was founded stated that the defendant at the time of the commencement of the action, and long prior thereto, was,