1816. DUNN 2. SLEE. undertaken not to sue the principal in the mean time, even at the request of the surety. Rees v. Barrington, 2 Vez. Jun. 540. Dict. in Wright v. Simpson, 6 Vez. 734. But the mere change, or addition, of securities, not displacing the original debts, nor tying up for a time the creditor's right of action, will not discharge the surety. Boulibee v. Stubbs, 18 Vez. 20. Composition with the principal, reserving the remedy for the remainder against the surety, has been recognized in courts of law and equity; though it is considered as involving the absurdity of rendering the principal, by circuity of action, liable to the whole. Boultbee v. Stubbs, 18 Vez. 20. But the utility of making a judicious arrange. ment for the benefit of creditor and surety, may be easily perceived; and there is no derogation from the due protection of the surety, by suing him only for a part of that whole, which might have been demanded from him; leaving his remedy against his principal for such part unprejudiced. Perhaps a creditor, compounding with his principal, and delaying the demand of the debt against the surety, and in the mean time the principal becoming insolvent, might be a case for equity to interpose, in order to protect the surety against the creditor upon the ground of fraud: but it is apprehended that this is an undecided case. See Orme V. Young, ante, p. 84. 1816. OSEY and Another v. GARDNER and Another. TR A. has some rum in the rum West India Docks, which West he sells to B. The rum is to of a be shipped by 4. in a vessel chartered by B. Before the rum is deli vered on board the vessel, B. gets a bill of lading from the cap ROVER to recover 150 puncheons of rum. The defendants being possessed of the in question, which was at the time in the India Docks, sold it to a person of the name Meredith, who gave directions to ship it on board the Zealous, which he had chartered on a voyage from London to Rotterdam. Having obtained bill of lading from the captain, previous to the loading of the goods, Meredith indorsed it over to him their check for 4,000l. the plaintiffs, who gave on Jones, Lloyd and Co. in payment for the rums, This check was duly honoured; but the defendants not being paid, and having a suspicion of the the bill of solvency of Meredith, countermanded a part of being unpaid, the goods, which were, at the time of countermand, and suspecting in the course of delivery from the West India B. takes some Docks, and seized the rest, forcibly, from the vessel rum forcibly on board of which they had been shipped. One hundred and three puncheons were on board when the defendants stopt them; forty-seven were still undelivered. The transaction between Meredith, and Osey and Co., on their part, was not liable to impeachment. The bill of lading bore date on the 28th November 1815, which was before any of the goods were on board the Zealous. he then sells the rum in question to G who pays B. for it, upon an indorsement of lading. A. part of the from out of the vessel, and countermands the delivery of the rest. to recover the much as B. procured it to be signed by the captain before the rum was delivered on board the 1816. OSEY 2. Shepherd, S. G. for the defendants, contended, that they had a right to stop the rum in transitu. It was true, the plaintiffs had paid a good GARDNER. consideration for the rum; but they could only take such title to the goods as Meredith possessed. The captain had signed a bill of lading before the goods were on board. At the time it bore date they were actually in the West India Docks. He had moreover signed a bill of lading to persons who were not the real shippers. The defendants were the shippers; they had shipped a part, and had countermanded the remainder. It would be the source of infinite fraud, if a bill of lading could be construed to convey an assignable property, before the goods were actually laden on board the vessel. The bill of lading purported that the goods, at the time of delivering it, were on board. If they were not on board at that time, it was an instrument pregnant with fraud. Best, serjeant, contrà.-The plaintiffs knew nothing of the circumstances under which this bill of lading was signed. It was exhibited to them, and they paid 4,000l. for the property. The bill of lading transfers the property, whether the goods are on board or not; if the assignee, at the time he takes it, is ignorant that the goods are not on board. No attempt is made to impeach the honesty of the transaction on the part of the plaintiffs. The ship was chartered to Meredith. The moment the goods were put on board the delivery to Meredith was perfected, and the sale to the plaintiffs attached. BURROUGH, J.-Under the circumstances of the case, I think the bill of lading transferred no property to the plaintiffs. Can a bill of lading be considered to be made bonâ fide, when no goods are on board at the time that the captain signs it? Is not such an instrument fraudulent? Upon some of the Jury expressing an opinionthat they thought the bill of lading fraudulent upon that ground, the plaintiffs consented to be nonsuited. Best, serjeant, and F. Pollock, for the plaintiffs. Shepherd, S G. Vaughan, serjeant, and Marryatt, for the defendants. 1816. OSEY v. GARDNER. Vide Craven v. Ryder, ante, p. 100.: and 6 Taunt. 433.: and Withers v. Lys, p. 18. See 1816. A. before his bankrupt cy, discounts certain bills of ARBOUIN and Another, Assignees of GowEN, a MON ONEY had and received.-The defendants pleaded the general issue. This action was with brought to recover the sum of 9341. 8s. Sd. being B. and Co. his the balance of an account in the hands of the debankers. They mediate credit for the value of the bills in his account, minus the discount, A ba lance is like wise struck, before the bankruptcy, bills were yet give him im- fendants, who had been bankers to a person of the name of Gowen. In May 1816, Gowen procured the defendants to discount him two bills of exchange; one for 1,000l. at two months, drawn by himself, and accepted by one Arnold; the other, for 312. 17s., drawn in the same manner, and and, whilst the accepted by one Mills. Both bills were discounted running, in fa- in cash by the defendants, and Gowen had credit for them in his account with the house, minus the bankers admit discount. This transaction was in May. On the in their hands 18th of June, the defendants made up Gowen's due to 4., giv. account, which was then balanced; when, giving him credit for the proceeds of the discounted bills (then running) the sum of 9341. Ss. 8d. stood as a bankrupt, and balance in his favour. This sum was now sought vour of 4., when the that they have 9341. 8s. 8d. ing him credit for the bills then running. ter 4. becomes a the bills are due to 4. be fore his bank ruptcy, they have a right to set off against such claim, the amount of the to be recovered by the present action. On the 17th of June, Gowen committed an act of bankruptcy, and a commission issued on the 20th. On the 15th of July the present action was commenced: on the 19th, the bill for 1,000l. became due; and, on the 12th of August, the second bill for 312. 178. Both acceptors were insolvent, and the bills remained in the hands of the defendants. dishonoured bills, it being a case of mutual credit, under the 5th Geo. II. c. 30. s. 28. |