SURETY. BILL OF EX CHANGE, &c. Mar. 13, 1818. mentioned in the cases, are not produced in this House, nor copies of them'; and yet it is absolutely necessary that we should have them or copies of them; 1st, because it is always dangerous to decide without seeing the instruments on which the cases depend; and 2dly. because there is hardly any case from Ireland, in which it is not necessary to call for this supplemental information. The case is the more remarkable here, and it is the more necessary that we should see these instruments, as there appears no authority in the act of parliament for taking a bill of exchange; and when it is made a question, and the subject of argument, whether the bill of exchange was not the principal security, and the bond the collateral security, it becomes still the more reasonable and proper that we should see them: for though the bond is a security of a higher nature, yet if in its recital it refers to the bill of exchange as the principal security, although the one is a specialty, and the other only a simple contract, the specialty may, perhaps, be only the collateral security. And then you will have to consider the effect of the commissioners taking a bill of exchange as a security when the act says that they shall take only securities under seal; and it cannot without a great deal of reservation be argued with success that they shall have the benefit of such a security under the act, when the act authorizes none such to be taken. Then in this bill of exchange J. C. Beresford is the acceptor, and if the bond is a collateral security, then you will have to consider what is the effect of the circumstance that, though Beresford is the acceptor, still the consideration was given to Mar. 13, 1818. Blair, and that with the knowledge of the commis SURETY. sioners. First, then, it will be to be considered in BILL OF EXwhat situation Blair and Beresford stand with re- CHANGE, &C. spect to the commissioners, and each other; and secondly, in what situation those who have indorsed this bill stand to justify this decree. Taunt. 192. The Solicitor General says, that the Court of Fentum v. Common Pleas have determined that although one receives a bill of exchange with the knowledge that it is an accommodation bill, &c. yet the acceptor is bound to pay, and this decision took place when Sir James Mansfield was Chief Justice, and the present Chief Justice (Sir Vicary Gibbs) was one of the puisne Judges. If that went on this principle, that with a view to the benefit of commercial intercourse you would not inquire into the knowledge of parties; but that all should be taken according to the natural effect of the bill, as appearing on the face of it, I think that a most wholesome principle. And it will not be surprising that I, who have so often contended that you ought always to look only at the natural effect of a bill of exchange, and never to hold that the acceptor was not first liable, should approve of that principle. And yet we have been so often misled in Chancery as to what had been considered as the law on that point by the Court of K. B. as to have held perhaps a dozen times, that the consequence was contrary to what has been determined by the Court of Common Pleas, supposing the principle to be that which I have mentioned. Then it is also necessary that we should see this bond, not only to be certain as to the obligations of SURETY. BILL OF EX CHANGE, &c, Mar. 13, 1818. the parties with reference to the law, as between principal and surety generally, but as arising out of this Irish act of parliament. In the common case there can be no doubt with respect to a bill of exchange, but that the demand ought first to be made against the acceptor, and he not paying, and notice being given to the drawer, he then became liable. And with respect to principal and surety in a bond where the creditor enters into an agreement or binding contract with the principal debtor, to give him further time without the concurrence of the surety, the surety is discharged; as the creditor by his new contract destroys the benefit which the surety had under the former contract, as he puts it out of his own power to make good his engagement to enforce immediate payment from the principal, when the surety would have a right to require him to do so. But special circumstances may vary even that, as in the case in 18 Ves. which I ought not to rely upon as authority, being a decision of my own, but which was sanctioned by a decision of Lord Thurlow. It was said there, that unless the alteration of the time and mode of payment extended to the surety, so as to prevent his enforcing immediate payment, the contract could mean nothing. But the parties must be allowed to judge of that: and there may be many cases in which individuals may think, that having obtained delay as against the creditor, they may leave the matter open as to the surety, trusting to his feelings that he will not distress them. Boultbee v. Stubbs, 18 This case is to be viewed with reference to all these principles. It is also to be considered with SURETY. reference to this act of parliament. If the act gives Mar. 13, 1818. the Crown process to the surety in the event of their being called upon to pay, and if they were BILL OF EXnot placed in that respect in a worse situation, that CHANGE, &c. is one view of the case: but if there are clauses in the act requiring the commissioners to sue without delay and the commissioners being so required to sue without delay, have put that out of their own power, then it will be to be considered whether all are to be taken as being parties to this act of parliament; and whether the commissioners, being under an obligation by the act to sue without delay, could take the benefit even of passiveness as against the surety. But I give no final opinion upon these points till we have authentic copies of these instruments, that we may take care to be accurately informed of the nature of the instruments to which we are called upon to give legal effect. Decree afterwards AFFIRMED. Judgment. SCOTLAND. APPEAL FROM THE COURT OF SESSION. GRANT-Appellant. CAMPBELL and others-Respondents. A. gives a cautionary obligation to B. and engages to trans- May 1, 1818. fer and assign to him certain property in security, to en May 1, 1818. SECURITY, NOTICE, &C. able B. to raise money, under an agreement, by which certain contemporaneous conditions were to be performed by B. and then gives B. a letter and orders for the property, in which the conditions were not mentioned. C. advances money for B. obtains an assignation of the letter and orders, and brings an action of adjudication in implement of his obligation against A., alleging that the money had been advanced on the faith of the letter and orders, and not on that of the agreement, of which B. had not performed his part. So found by the Court below, and decree for C. But the judgment reversed by the House of Lords, on the ground that C. before he advanced, or became bound to advance money for B. had such notice of the existence of some agreement relative to the obligation by A. as imposed upon him the duty of inquiry as to its terms, also on the ground that the letter by itself was an obligation without consideration, and that the agreement must be let in to give it validity, &c. Summons. THIS was an actior, brought by the Respondents, Messrs. Campbell and Stuart, for themselves, and as trustees for certain other persons, against the Appellant, to enforce performance of a cautionary obligation: and the import of the summons, which was termed a summons of adjudication in implement in security, was, that the Appellant had, by certain holograph missive letters of the 8th and 13th March 1811, bound himself to become cautioner to the friends of Mr. James Walker, in the pleadings mentioned, to the extent of 8,000/. for such sums as his friends might advance for him; and, having given to Walker orders upon his forester at Rothiemurchus, and his agent at Garmouth, to deliver him timber to the amount of 8,000l. had also bound himself to execute to Walker an assignation of his lease of the forest of Rothiemurchus to the ex |