The surety, therefore, is exonerated on this general principle, that the Plaintiffs have, without his assent, altered the situation in which he had a right to expect he should be placed when he gave the guaranty. It has been contended, that though the surety has sometimes, under such circumstances, been held to be discharged in equity, such is not the rule in courts of law. But except where a surety has entered into a bond for payment in default of the principal debtor, courts of law, as well as courts of equity, have always held the surety to be discharged where, without his assent, time has been given to the principal debtor. Where the surety has entered into such a bond, and by a parol agreement time has been given to the principal debtor, the surety is compelled to resort to a court of equity because by the rules of law a parol agreement cannot be pleaded in discharge of an instrument under seal. (a) In the present case, although no specific time of payment is fixed by the guaranty, yet it must be implied that the guaranty was given on the supposition that the debtor would not have more than the usual credit. But how, it is said, is the situation of the surety altered by this? At the end of eight months he had a right to enquire whether the debt due to the Plaintiffs had been discharged, and if he found it still due, to take his measures against the debtor accordingly; whereas if the creditor could, without his assent, extend the credit to an unlimited time, the surety might be deprived of all remedy by the subsequent insolvency of the debtor; a danger to which he would equally be exposed, although he should be remitted to his right (a) Davey v. Prendergrass, 5 B. & A. 187. and see Rees v. Berrington, 2 Ves. jun. 542. 1832. COMBE ບ. WOOLF. against the debtor, provided the creditor forbore to sue till the extended term had expired. With respect to the casks, if the action had been brought for the identical casks in which the porter had been contained, perhaps they might be considered as accessory, and falling within the same rule as the principal demand; but as the casks in question were furnished on a different occasion, they are not within the meaning of the guaranty, and, at all events, are not within the terms of the declaration. PARK J. I agree that this rule must be made absolute. In coming to this decision we do not infringe on the cases which have decided that mere laches on the part of the creditor will not discharge the surety. The distinction taken in all the cases is between mere laches, or omission to press the debtor, and giving him a right to farther time. As in English v. Darley, where the indorsee of a bill having sued the acceptor to judgment, and taken out execution, received of him a sum of money in part payment, and took his security for the remainder, with the exception of a nominal sum only; he was held to be precluded from afterwards suing the indorser. In Orme v. Young (a) it was contended that the surety should have had notice of the creditor's abstaining to proceed; but Gibbs C. J. held that the mere want of notice did not discharge the surety, and said, "What is forbearance and giving time? It is an engagement which ties the hands of the creditor. It is not negatively refraining; not exacting the money at the time; but it is the act of the creditor, depriving himself of the power of suing by something obligatory, which prevents the surety from coming into a court of equity for relief; because, the principal having tied his (a) Holt, N. P. C. 84. Own own hands, the surety cannot release them. Here there is no contract to forbear; no impediment to the suit. A neglect to give notice to the surety that the debtor has made default, does not discharge him." In the present case there was a positive prevention of any suit by the principal creditor; for when he had tied up his own hands for months, the surety could make no claim at the expiration of the usual time; and it is by the risk that the debtor may become insolvent in the intermediate time, that the surety is injured. ; As for the casks, if the defendant were liable at all, I think he would be liable for the casks also, supposing the porter in question to have been contained in them but these were sent at a different time, and are neither mentioned in the guaranty nor in the special count. BOSANQUET J. The rule must be absolute. Although the surety has not stipulated for any particular credit, the course of dealing between the Plaintiffs and their debtor was altered, and the usual time of credit extended. It is admitted that the surety could not be sued during the time of the extended credit, which has been given without any notice to him, but it is contended that his liability revives after the extended credit has expired. But how is the claim against the surety supposed to be suspended? not by agreement between the parties but by operation of law; in other words, if an action were brought against him during the extended time, the indulgence given would be a bar to the action. If, however, it would, under such circumstances, be a bar at any time, it is a bar for ever, although the case would be very different if the action had been suspended by agreement. It has been urged that the surety is not injured by the indulgence shewn to the debtor. But he may be materially injured if the circumstances of the debtor decline during the time of the extended credit: the surety, 1832. COMBE V. WOOLF. 1832. COMBE V. WOOLF. who might have been reimbursed at the earlier period, may be without remedy at the later. As to the 177. claimed for the casks, I think the plaintiffs are not entitled to recover it at the hands of the defendant. It seems there was a distinct course of dealing with respect to the porter and with respect to the casks; it may be doubted, therefore, whether a guaranty which mentions porter only can be applied to casks; but whether that be so or not it was at least incumbent on the plaintiff to state in alleging the breach of contract, that the casks were not returned; this he has altogether omitted, and therefore is not entitled to recover. ALDERSON J. I am of the same opinion. The first question has been decided by the case of Orme v. Young, and the principle there laid down. Delay on the part of the creditor is no discharge to the surety, but the creditor's binding himself down not to sue the debtor is a discharge for all time as well as for the period during which indulgence is extended to the debtor. As to the question touching the casks, on which I entertain some doubt, it is sufficient to say that the demand in the declaration does not apply to them. Rule absolute. 1832. SUTTON V. CLARK. Jan. 24. ON the 25th of November the Plaintiff having de- Judgment of non pros can- clared as of Michaelmas term, was ordered to deliver, within a week, a further and better particular of demand. On the 3d of December the Defendant died. On the ninth, the particular not having been delivered, the Defendant's attorney, although no plea had been Judge's order. filed, signed judgment of non pros, which Jones Serjt. obtained a rule nisi to set aside, as irregular; a defendant not being entitled to sign judgment for want of a particular, nor after his own death. Ludlow Serjt., who shewed cause, contended, that the irregularity being complete on the 2d of December, the judgment might be signed at any time after, notwithstanding the death of the party; and that omission to deliver a particular must be treated in the same light as omission to declare, the particular being, in effect, substituted for the declaration. In Burgess v. Swayne (a) Lord Tenterden said, "The defendant might have obtained a Judge's order for the delivery of the particulars within a given time; and then, if the particulars were not delivered within the time specified, he might have signed judgment." Unless some penalty be attached to the omission to deliver a particular, the Plaintiff will have no motive for delivering it. Sed per Curiam. The judgment has been signed prematurely, and must be set aside. The penalty in suant to a (a) 7 B. & C. 485. curred |