1816. TH DUNN v. SLEE. were 1. A bond is given to A B. and C. by the plaintiff and w defendant, who were sure The plaintiff is obliged to pay the bond, and brings an ac they tion against his co-surety for contribution. A de was HIS was an action of contribution brought by one surety against a co-surety, to recover an aliquot share of a sum of money which he had been obliged to pay, in consequence of his having entered into a bond jointly with the defendant and others, to indemnify Brown and Co. who bankers at Brighton, against any loss which might sustain in certain transactions with à John Slee, the defendant's brother. The case this: John Slee had become indebted to Brown and Co. who called upon him for some security. John Slee proposed a bond to be executed by himself and three sureties, jointly, and severally. The sureties were, Josiah Slee, the present defendant, Atkins, and Dunn. The bond was for 3,000l., the conditions were for a general indemnity, and it was provided that three months' notice should be given to the parties before the bond was to be suit. The bond bore date January 1809. Brown and Co., trusting to this bond, dealt for some time with John Slee; but, becoming suspicious of Slee's solvency, they gave notice to Dunn, one of the sureties, and called upon him to pay 3,000l. which was then due to them from Slee. This application was made in the latter end of the year 1814. Dunn, not being able to pay at the time, gave a put in fence is set up, that the prin cipal had paid cally on ac the obligees, the account of money, specifi Held, that any the obligee, what ac ceived the mo declaration payment,) was not evidence; not evi obligee must witness. be called as a 2. Though time given to the principal will, under certain circumstances, exonerate a surety; yet, time given to a surety, without the privity of his co-surety, will not, upon his paying the debt, affect his right of action for contribution against such co-surety. 1816 DUNN v. SLEE. warrant of attorney to Brown and Co. bearing date On the part of the defendant there were two points-1st, That John Slee had paid the 3,000l. specifically to Brown and Co. in discharge of the bond; and, therefore, that the payment made by Dunn, which was two years after, could not render the defendant liable to repay him.-2d, That the defendant was discharged in law, the principals, Brown and Co., having given time to Dunn; and Dunn having made a new arrangement with them, without the privity of his cosureties. To prove the first point John Slee was called as a witness: he stated that Brown and Co. had applied to him in 1812, to pay the 3,000l. on the bond; that he accordingly paid it by instalments of 1,000l. each into the hands of their London bankers; the last payment being made in September, 1812. He was then asked by the defendant's counsel, whether, after the payment of the several instalments, West, one of the junior partners, had not admitted that they had received the 3,000l. on the specific account of the bond. This question was objected to by the plaintiff's counsel, who insisted that West should be called.' Lens and Pell, serjeants for the defendant, contended, that the evidence was strictly admissible, and that it was not necessary to call West. That the declarations of a person, not a witness, were often admitted in evidence, in cases in which he was no party upon the record. That the material question in the case was, had Brown and Co. been paid the specific 3,000l. on the bond? Surely, their admission that they had been paid in a particular manner was evidence in a cause which turns upon that point solely. In an action on the bond it would have been good evidence against Brown and Co. and why is it not good evidence in an action like the present, which is in substance upon the bond itself. Shepherd, S. G. contrà.-West may be called. The written entries of a witness, who is dead, may be read in evidence; the reason is, because he is dead. But West is a competent witness, and may be examined. PARKE, J.-I am of opinion that the declaration of West is not evidence in the cause. What West said at the time of payment, or at the time when payment was demanded of John Slee, was a fact that might be proved; it would be a part of the res gesta; but any declaration made, after payment, upon what account he received the money, is no evidence against the plaintiff. He must be called; his unsworn declaration cannot bind any interest 1816. DUNN v. SLEE. 1816. DUNN v. SLEE. of the plaintiff, who has a right to his oath, and to cross-examine him. I therefore reject the evidence. Other evidence was given, the tendency of which was to shew, that the 3,000l. had not been paid or received on account of the bond. Lens, serjeant, then objected, that the plaintiff could not recover in point of law. Brown and Co. had given time to one surety, the present plaintiff, who had entered into an arrangement with them, without acquainting his co-surety, the defendant. That the defendant was thereby discharged. A new security was taken from Dunn in his own name, giving him time for eighteen months. This, therefore, was a discharge to the defendant, unless Brown and Co., or the plaintiff, could shew his express consent. Shepherd, S. G. contrà.-This is a case of time given to a surety, and not of time given to a principal. An obligee undoubtedly cannot give time to a principal, without the privity of the surety; but he may give time to one surety without the consent of the other, and hold them both liable. PARK, J.-This case does not fall within the general rule. Undoubtedly, as between principal and surety, time given to the former, without the consent of the surety, will, under certain circumstances, discharge the surety. This rule, which now obtains in courts of law, was originally borrowed from courts of equity; and it is not technical, but founded in essential justice. We proceed, by the same analogies, in our mercantile law upon bills of exchange. Time given to the acceptor will discharge the drawer. But I am not aware that it applies between co-sureties. Each surety is liable, jointly and severally, on this bond. One surety cannot be injured by time having been given to another. Brown and Co. might have recovered the whole amount from any one of the sureties; and the surety who paid the whole would still have his action of contribution against a co-surety, notwithstanding any arrangement for time which might previously have taken place between the obligee and such surety. I think this is no an swer. Verdict for 8911. 10s. Solicitor General, Hullock, serjeant, and Ross, for plaintiff. Lens and Pell, serjeants, and Richardson, for the defendant. 1816. DUNN v. SLEE. In the ensuing term, the defendant's counsel applied for a rule to shew cause why there should not be a new trial. The Court, upon hearing the case, refused the rule, thereby confirming the opinion given by the learned judge at Nisi Prius. Equity will not charge a surety further than he is bound at law. Ratcliffe v. Graves, 1 Vern. 196. Sheffield v. Lord Castleton, 2 Vern. 393. There- The reason forming the |
