ELECTION. PURCHASER WITHOUT NOTICE. TIME.-AD of the way so as to allow the right to be tried at Mar. 4, 1818. law. Then the bill ought to have been a bill to redeem, or simply to put the mortgage out of the MISTAKE. way so as to permit the matter to be tried at law. FOR VAL. CON. But then it must have gone on to have offered payment of the mortgage money, suppose it to be LENGTH OF 2,9001. and an account; and then they would have MISSIONS IN been entitled to charge the 4,000l. portion, subject ANSWERS, &c. to the question, whether the life estate given to Jane might not be considered as an advancement pro tanto. The bill should have come offering to do what was equitable, and tendering all the accounts that were necessary to settle the rights of the parties. But in 1792 the mortgaged estates were in Wright, and he executes a declaration of trust for the Defendant. I do not mention the cases of buying in prior incumbrances to protect the estate against intermediate incumbrances, as they have no direct bearing, though they have some bearing, on this case. But there are cases where subsequent mortgagees have been permitted to purchase prior incumbrances in order to protect their mortgages, and to shut out intermediate incumbrancers, a tabula in naufragio, as it has been called. But I do not consider this case as of that nature, as if the estate passed under the will of Thomas; forthen the great question might have arisen as to an equitable owner who has, and an equitable owner who has not the legal estate, contending which of them had the right of redemption, regard being had to all the circumstances, and so on. But the difference is, that the question is not here Mar. 4, 1818. with a volunteer as it was in another case, but with a purchaser for the most meritorious consideration, and who was in possession of the estate which he PURCHASER claimed as his, as being a purchaser for valuable ELECTION.- FOR VAL. CON. WITHOUT NOTICE. LENGTH OF TIME.-AD MISSIONS IN consideration. Then, looking at the settlement of 1776, and at the names of those who were parties to it; and, ANSWERS, &c. considering that a very considerable interest in predoctrines as senti was given to Lord Rancliffe, which he could applied to the not otherwise have had in his father's life-time; and Result of the case. Costs. that Sir Thomas Parkyns honestly believed he had purchased; and that this is a matter of doubt where the scales strongly incline in favour of the supposition that the East Leake estates did not pass; and then considering the enormous lapse of time, and that a scrutiny from day to day is still discovering new deeds; and considering the relative values of the estates and the charges upon them in 1746, and at the present time, I think this is a case where the Plaintiff could not have any relief at law if the question were to be tried there; and upon that is founded my judgment that this bill cannot be sustained. As to costs I never thought about them in this case, as all the parties were acting very honestly and ignorantly; and still doubting in some measure in such a case, where it is impossible, from the materials before us, to be positively certain that we are in the right. But all that can be expected of a court of justice, in a case where additional documents are drawn out in this manner, during the whole progress of the suit, is to fight with the difficulty as it best can; and then if that difficulty Mar. 25, 1818. cannot be overcome, the fault does not rest with the court. ELECTION.- NOTICE. Here then I close, and I have only further to say with respect to this case, that I have given it the WITHOUT utmost attention and consideration in my power, LENGTH OF and done every thing that depended on me to make TIME.—ADsure of my coming to a sound and accurate con- ANSWERS, &c. clusion. Decree AFFIRMED. MISSIONS IN COMMISSIONERS under an act of parliament, for giving Mar. 13, 1818. money by way of loan to merchants, &c. make an ad vance for A. who, along with B. as his surety, becomes SURETY.bound to repay within a limited time. A. obtains from BILL OF EXthe Commissioners several extensions of the time of pay-CHANGE, &C. ment without the privity or knowledge of B. his surety, and at length becomes bankrupt without having paid. Bill to restrain proceedings at law against the surety; the obligation being discharged upon the indulgence granted without his privity or knowledge. Decreed accordingly, and the decree affirmed in Dom. Proc. Mar. 15, 1818. By an act of the Irish parliament of 33 Geo. 3. SURETY.. BILL OF EX CHANGE, &C. commissioners were named, who were empowered to advance certain sums to merchants, traders, and manufacturers, upon securities, the sums to be advanced by the Bank of Ireland, and to be made good by parliament. Thomas Blair, an iron manufacturer in Dublin, applied, about the 30th January, 1800, to the commissioners for a loan, offering John Claudius Beresford, Archibald Redford, and Richard Sayers, all of Dublin, as his co-securities. It was determined to advance to Blair a sum of 10,000/.; and a bill of exchange, a security not authorized by the act, dated 7th Feb. 1800, to that amount, was drawn by Blair on Beresford, and accepted by him to the order of Redford, and indorsed by him and Sayers, payable on the 1st of November following. A bond, with warrant of attorney, was also executed by Blair and his sureties. Blair afterwards obtained several extensions of time, for the payment of the above sum, and at length became bankrupt, without having paid. Judgments had been entered upon the bond and warrant of attorney, and the governor and company of the Bank were about to levy the 10,000%. from the sureties, when they filed their bill in the Exchequer Court against the Governor and Co. of the Bank, the secretary to the commissioners (in whose name the commissioners were, under the act, to sue and besued) and the Attorney General, stating that the extensions of credit were given without their privity and concurrence, and that, they being SURETY. CHANGE, &c. merely sureties, were by such indulgence dis- Mar. 13, 1818. charged; and praying for a perpetual injunction to restrain proceedings at law against them on the BILL OF EXground of this obligation. The Defendants answered, that the sureties had notice of the indulgence, and that, even if they had not, the extensions were not of a nature to discharge them. An issue was directed to try whether the Plaintiffs had notice, but the Defendants declined the trial, not being able to prove notice. The Court of Exchequer, in 1814, decreed according to the prayer of the bill. And from this decree the Defendants appealed. At the hearing in the House of Lords, in March, 1818, the cases of Walwyn v. St. Quintin, 1 Bos. Pul. 652.; Nesbitt v. Smith, 2 Bro. Ch. Ca. 179.; Rees v. Berrington, 2 Ves. 540.; and Boultbee v. Stubbs, 18 Ves. 20.; were cited; and the case of Fentum v. Pocock, 5 Taunt. 192. decided on the principle that, neither time given by the holder to the drawer to pay, nor knowledge of the holder when he took the bill that the acceptance was merely for the accommodation of the drawer, discharged the acceptor, and that nothing could discharge him but payment or a release, was particularly relied on by the Solicitor General on behalf of the Appellants. Lord Eldon, (C.) The proceedings in this case are proceedings on a bond and warrant of attorney to confess judgment, executed by Blair and the Respondents, under the circumstances mentioned in the pleadings. But the bond and bill of exchange, |