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THIS was an action of contribution brought 1. A bond is
given to A B. I by one surety against a co-surety, to recover and C. by the
och bo bol plaintiff and an aliquot share of a sum of money which he had a
defendant, been obliged to pay, in consequence of his having who were sure
tips for D. entered into a bond jointly with the defendant and The plaintiff is
obliged to pay others, to indemnify Brown and Co. who were the bond, and
brings au acbankers at Brighton, against any loss which they tion against
his co-surety might sustain in certain transactions with à Mr.
IT. tor contribuJohn Slee, the defendant's brother. The case was tion. A de.
fence is set up, this: John Slee had become indebted to Brown that the prin
cipal had paid and Co. who called upon him for some security. inoney, specifi
cally on ac. John Slee proposed a bond to be executed by him- count of this self and three sureties, jointly, and severally. Enginew
o ll. The bond, to one of
The the obligees, sureties were, Josiah Slee; the present defendant, and that
V, obligee had Atkins, and Dunn. The bond was for 3,0001., the carried it to
the account of conditions were for a general indemnity, and it was the bond.****
Held, that any provided that three months' notice should be given deciaration or
the obligee, to the parties before the bond was to be put in
De pil upon tchat áce suit. The bond bore date January 1809. 'Brown couui he le
'ceived the moand Co., trusting to this bond, dealt for some time ney, or how he
had applied it, with John Slee; but, becoming suspicious of Slēp's (unless such
declaration solvency, they gave notice to Dunn, one of the were made at
the time of sureties, and called upon him to pay 3,0001 which
payment,) was was then due to them from Slee. This application not evidence; •
and that such was made in the latter end of the year 1814. obligee must
be called as a Dunn, not being able to pay at the time, gave a witness.
. . 2. Though time, given to the principal will, under certain circumstances, exonerate a surety; yet, time given to a sure ty, withont the privity of his co-surety, will not, upon his paying the debt, affect his right of action for contribution against such co-sürety.
warrant of attorney to Brown and Co. bearing date Ist January 1815, to secure the 3,1001. which warrant of attorney contained a defeasance to be void, provided the money should be paid on or before the 1st of June 1816; otherwise judgment to be entered up, and execution issue. It appeared that Durn entered into this arrangement with Brown and Co. without the privity of the defendant. John Slee and Atkins, the other surety, had since become bankrupts.
To prove the first point John Slee was called as a witness : he stated that Brown and Co. had applied to bim in 1812, to pay the 3,0001. on the bond ; that he accordingly paid it by instalments of 1,0001. 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 3,0001. 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 3,0001. 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 geste; 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
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 d'eceived 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 answer.
Verdict for 8911. 10s.
Solicitor General, Hullock, serjeant, and Ross, for plaintiff.
Lens and Pell, serjeants, and Richardson, for the defendant.
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