Exchequer Reports. MICHAELMAS TERM, 23 VICT. TAYLOR v. BURGESS. DECLARATION on a promissory note, dated the 12th of May, 1857, whereby the defendant promised to pay the plaintiff 401. by instalments of 51. every fourteen days from the date thereof. Plea. The defendant, for defence on equitable grounds, says, that he made the note at the request and for the sole accommodation of one J. Billson, as the surety only of the said J. Billson, to secure a debt due to the plaintiff solely from the said J. Billson; and that there never was any value or consideration, except as herein aforesaid, for the defendant making the said note or paying the same. And the said note was delivered to the plaintiff, and accepted by him from the defendant, upon express agreement between them that the defendant should be liable thereon as surety only for the said J. Billson; and the plaintiff, at the time when the said promissory note was made as aforesaid, had notice and knowledge of the said note having been so made by the defendant as such surety as aforesaid. And the defendant further says, that the plaintiff, while holder of the said note, without the knowledge or consent of the defendant, for a good and valu VOL. V.-N. S. B EXCH. 1859. TAYLOR v. BURGESS. able consideration in that behalf, agreed to give and gave to the said J. Billson time for the payment of the said note beyond the time when the same became and was due and payable, and forebore to enforce payment of the same during that time upon and for the consideration aforesaid; and the plaintiff could and might have obtained payment from the said J. Billson of the said note, and all monies due thereon, had the plaintiff required payment of the same and not given the said J. Billson time for the payment of it as aforesaid. And that by means of the premises he, the defendant, has been greatly prejudiced and damnified; and has been and is wholly discharged from all liability to pay the amount due upon the said note. Replication. The plaintiff joins issue on the plea. By order of a Judge, under the 19 & 20 Vict. c. 108, s. 26, the cause was tried before the judge of the County Court at Leicester, without a jury. The defendant's counsel having tendered evidence in support of the plea, the plaintiff's counsel objected that it was inadmissible, since its effect was to vary a written contract by parol testimony. The judge received the evidence, and the following facts appeared: In May 1857, the plaintiff agreed to lend one Billson 407., provided the security was satisfactory. Billson proposed the defendant as a surety, and he was accepted by the plaintiff, who advanced the money upon the security of a joint and several promissory note made by the defendant and Billson, by which the amount was payable by instalments of 57. a fortnight. The last instalment was due on the 1st of September, 1857. On the 31st of August, at which time 201. only had been paid, the plaintiff told Billson that the remaining 201. might stand over for two months on payment of another sovereign. Billson paid the plaintiff the sovereign, and received from him the following receipt : "Memorandum:-That I have this 31st day of August received twenty shillings in consideration of the 207. now due remaining unpaid for two months from this day, i. e., till Nov. 1, 1857. "G. T. Taylor." This further time for payment was given without the defendant's consent or knowledge. Billson stated that he could have paid the whole 207. on the 1st of September. The judge was of opinion that the evidence supported the plea and found a verdict for the defendant, reserving leave to the plaintiff to move to enter the verdict for him. C. G. Mereweather, in last Term, obtained a rule to shew cause why the verdict should not be entered for the plaintiff or a new trial had, on the ground of the misreception of evidence to vary the promissory note, by shewing that the defendant was only a surety and that time had been given to the principal: also that the evidence did not prove the allegations in the plea. Field now shewed cause.-The evidence was properly received and proved the plea. No doubt there are authorities that, at law, evidence is inadmissible as against the holder, to shew that one maker of a promissory note was surety only for another, and that the surety was discharged by time given to the principal; because the effect of such evidence would be to render conditional a contract which on the face of it is absolute: Byles on Bills, p. 8, 7th ed. In Strong v. Foster (a), the Court of Common Pleas seem to have considered that the same rule prevailed in equity; and that, in order to ascertain whether a party was principal or surety, the terms of the instrument alone must be looked at. But, in a subsequent case of Pooley v. Harradine (b), the Court of Queen's Bench held, that though the written contract contained in the note could not be varied by parol in equity any more than at law, yet an equity arose from (a) 17 C. B. 201. (b) 7 E. & B. 431, 1859. TAYLOR v. BURGESS. 1859. TAYLOR v. BURGESS. the relation of suretyship existing between the principal debtor and the surety, and from that relation being known to the creditor at the time he took the note. There the Court acted on the doctrine of Courts of equity, as laid down in Davies v. Stainbank (a) and Hollier v. Eyre (b); and they said that by that doctrine the primary liability is not at all altered; that "in truth the defence, either at law or in equity, does not arise by any alteration of the original contract, which indeed it assumes and relies on in its original terms, but that the creditor cannot fairly or equitably sue the surety where, knowing of the existence of the relation of suretyship, he has voluntarily tied up his hands from proceeding against the principal." The case of The Mutual Loan Fund Association v. Sudlow (c) is also an authority, that where the principal, at the time the security is given, has knowledge that one of the parties signed it as surety only, the latter may avail himself of any equitable defence arising out of that relation. He then argued that the evidence proved the plea. C. G. Mereweather, in support of the rule.-The evidence was inadmissible; and, if admissible, it did not support the plea. It is clear that, at law, a written contract cannot be varied by a contemporaneous parol agreement; and the same rule prevails in equity. Strong v. Foster (d) is an authority that the question whether a party is principal or surety must be ascertained by the terms of the instrument itself, without the aid of extraneous evidence. In Pooley v. Harradine (e), the Court decided according to what they believed to be the doctrine of Courts of equity; but at the same time observed, that they should not regret if the subject were (a) 6 De Gex, Mac & G. 679. (b) 9 Cl. & F. 1. (c) 5 C. B., N. S. 449. (d) 17 C. B. 201. (e) 7 E. & B. 431. MICHAELMAS TERM, 23 VICT. reviewed by a Court of error. [Pollock, C. B.-When a case can be taken to a Court of error, the decision of one Court of co-ordinate jurisdiction ought to be binding on the others. When, however, there is no means of appealing to a Court of error, there is not the same obligation to follow the decision of another Court; and accordingly we sometimes find Courts of co-ordinate jurisdiction differing from each other.]-He also referred to the observations of this Court in Rayner v. Fussey (a). POLLOCK, C. B.-We are all of opinion that the rule ought to be discharged. Pooley v. Harradine is an express authority that the evidence was admissible, and we think it proved the plea. BRAMWELL, B.-I also think that the case is concluded by Pooley v. Harradine. WATSON, B., and CHANNELL, B., concurred. 1859. TAYLOR v. BURGESS. Rule discharged. (a) 28 L. J., Exch. 132. GAMBART v. Sumner. Nov. 7. DECLARATION.-That the plaintiff, after the 24th By the 17 Geo. day of June, 1777, mentioned in a certain act of parlia ment (17 Geo. 3, c. 57), entitled "An Act for more effec tually securing the property of prints to inventors and engravers, by enabling them to sue for and recover penalties a in certain cases;" and before and at the time of the committing of the grievances hereinafter mentioned, was, and from thence hitherto hath been, and still is the proprietor of certain prints which had been heretofore engraved in 3, c. 57, a per son having a copyright in a print or engraving may maintain an action against person for selling pirated copies of it, though such person has no knowledge that the prints are piracies. |