Then we have a draft document dated 22nd November, 1876, which possibly may be the "letter" referred to by the plaintiffs in their letter of the 16th. At all events it seems similar in its import. It is in the following terms: WINGHAM, 22nd November, 1876.

"Messrs. Thompson, Birkett & Bell, Hamilton.

"Dear Sirs,-With reference to the indebtedness of my late firm of McGuire & Hutton to your firm, amounting at this date to $1,518.86, say fifteen hundred and eighteen dollars and eighty-six cents, and comprised in the following promissory notes and acceptances, viz:

(Then shewing items amounting to $1,518.86.)

"I hereby promise and agree to sign renewal notes or accept renewal drafts along with my late partner, James McGuire, for extending the time upon all or any of the above promissory notes or acceptances or drafts, reserving to myself the right to decline to sign further renewals after the existing overdue amount has been renewed up to the 25th day of February, A. D., 1877, and the note coming due on 22nd March next, and the open account have been renewed up to the 25th day of June, 1877.

Dated at Wingham this 22nd day of November, A. D. 1876, one thousand eight hundred and seventy-six."

To this Hutton replied, by post card, as follows:

Messrs. Birkett & Bell,

Gentlemen,-My legal adviser tells me it will not be for my benefit or interest to sign the document left by you, and you remember the Jew's quotation in my last letter to yourselves, If in, get out; out, keep out." I think I will have that framed. Mr. McGuire agreed to collect all debts and pay all-and I am quite willing to let him do it.

་

'Yours respectfully, WILLIAM HUTTON, Miller."

The "last letter to yourselves" referred to was written on 13th October, before the dissolution.

After receiving the card, the plaintiffs wrote the two letters following, one to each of the late partners:

"HAMILTON, 24th November, 1876.

"Mr. James McGuire, Wingham.

'DEAR SIR,-Mr. Hutton sends us a postal card saying his legal adviser tells him not to sign the paper which the writer left with him.

"In these circumstances we can give you no renewals of the old firm's paper, and must ask you to make special efforts to have it paid up. We should specially like to see those drafts which we have drawn upon the old firm, due 20th December and 20th January, taken out of the way. Do not hesitate to tell Mr. Hutton that you cannot pay him on 1st December, if it is going to cramp you to find him the money, and let him wait until it is convenient for you to pay.

"Keep your old indebtedness (that is, the indebtedness of the old firm) separate from your new liabilities, (and for this purpose you should get a new ledger), and then when you remit on old indebtedness say so.

"We hope the matter of insurance has been attended to. "Yours truly, THOMSON, BIRKETT & BELL."

HAMILTON, ONT., 25th November, 1876.

“Mr. Wm. Hutton, Wingham.

"Dear Sir,-We have your postal card of 23rd inst., and regret that you should decline to carry out that which you tacitly admitted to the writer was a fair and reasonable proposal. In the circumstances we must refer you to see that Mr. McGuire remits us promptly for payment of the late firm's overdue paper, otherwise we shall have to put you both to trouble and expense. We presume as you are not disposed to accommodate us, you will not expect any accommodation from us. And we beg, therefore, to advise you that unless you and Mr. McGuire (either or both of you) send us our money very quickly, you may postpone the framing of the Jew's quotation meantime, for you will find you are in for it, and not out by any means.

"THOMSON, BIRKETT & BELL."

Hutton's answer to this was as follows:

"Messrs. Thomson, Birkett & Bell.

"Gentlemen,-Your favour in reply to my postal card I have received, and in reply have been to see Mr. McGuire anent the matter.

In our bargain at the dissolution he assumed all debts and was to pay me my claims in 3, 6, 9, 12 months, and agreed in writing to give or transfer me a policy of insurance for $2,000, which I was to hold until my claims were paid. Now I do not wish to defraud you one cent or get clear of any debt I honestly owe. You are entitled

to your money and I believe there is plenty to pay not only yours but mine as well, taking your figures for it in the statement you shewed me. Now this is what I am willing to do, and I told Mr. McGuire for him to give me the policy of insurance as he agreed to do, and whenever he does that I will endorse the old paper which you hold against McGuire & Hutton as shewn in your statement.

I consider Mr. McGuire has not dealt honourably with me in the past, and that is a more charitable expression than the one I could use; and a man who deceives me once I blame, but if he does it a second time I blame myself. If he fails to carry out his agreement with me, then the sooner it comes to a focus the better.

In this correspondence we have a very distinct assertion by the plaintiffs of what was, notwithstanding the arrangements between their debtors, their undoubted right, viz., the right to treat them both as equally liable for the debt; and we have as distinct a threat to enforce that liability, if Hutton would not become a party to renewed paper. We have at the same time the recognition of the fact that, as between McGuire and Hutton, the latter was only surety for the former, who had all the assets out of which the debt was to be paid; and we have Hutton's refusal to be a party to any renewal, except as indorsing McGuire's paper, which he consents to do on receiving the security he mentions.

The next letters are important. There is one dated 6th December, 1876, from the plaintiffs to Hutton, in answer to his of the first:

HAMILTON, 6th December, 1876.

"Mr. Wm. Hutton, Wingham.

"Dear Sir, We have your letter of 1st instant, and on consideration have advised Mr. McGuire to agree to your proposal, and have an endorsement made on his policy of Insurance to the effect that "loss if any shall be payable to you to the extent of your claim against him."

This should be sufficient for your purpose, for we suppose you only want the amount of your claim, which is not

$2,000 now, and we hope will be gradually getting less, as he is able to make payments on it.

"We have sent Mr. McGuire some renewal paper, which kindly sign, after the insurance matter is made right "We are, dear Sir, yours truly,

"THOMSON, BIRKETT & BELL."

The renewal paper here mentioned, and the character in which Hutton was asked to sign it, as well as its fate, are explained by an entry in the statement of 6th December, 1876, furnished to McGuire. That statement shews, on the debit side, $236 due for the balance of a draft for $316 which matured on 10th November; $128.99 for a note due on 25th November, and $8.75 for interest, &c., making in all $373.74; against which there is this credit: "December 6. By p.-note due 7th February, inclosed for signature and indorsation of William Hutton, but never completed, $373.74."

There are other letters, particularly one to Hutton of 4th January, 1877, and one to McGuire of 19th January, 1877, in which the plaintiff's still speak of indorsements by Hutton, which indorsements, however, he never gave.

Besides these references to indorsements, which seem to me to be very decided recognitions of the relationship between the defendants, there was the fact that the plaintiffs by continuing to supply McGuire with goods upon credit, and by applying on McGuire's new account whatever moneys were paid generally by McGuire, were making the old stock, and in effect making Hutton himself, security to themselves in respect of their new dealings with McGuire. It may, of course, be said that the new stock in its turn became security for the payment of the old debt; but even if under all the circumstances that could be, in any substantial sense, conceded, the fact to which I have just alluded would remain.

Then this being the relationship of the parties, let us see, before considering the law on the subject, what was done by the plaintiff's by way of giving time to McGuire.

I have already referred to two drafts drawn on McGuire

& Hutton on 4th November, 1876, one due on 20th December, 1876, and one on 20th January, 1877, and which must have been accepted by McGuire. I do not place stress upon these because we have no direct evidence that at the time these drafts were drawn the plaintiffs were informed that Hutton objected to be a party to renewals of the paper. But at the end of November or the first of December, the attitude of the parties was defined. Hutton refused to be a party to renewals, the plaintiffs threatened to press the overdue paper, and Hutton declared that "the sooner it came to a focus the better." Then ensue some attempts to get Hutton to indorse renewal paper; but, as shewn by the statement of 6th December, 1876, those attempts failed.

From that date forward the dealings are with McGuire alone. A reference to a few of these will make it clear that time was constantly extended to him, by taking his promissory notes or acceptances for the payment of the old debt as well as his new engagements.

Up to July, 1877, as I have already remarked, the old account was kept more distinct from the new one than at the later dates.

In the statement of 12th June the balance of it is stated as $1,100.31, which should have been $1,090.31, there being an error of $10 in subtracting a credit, which was corrected later on. Against this balance there are three credits of current paper, viz.: a draft of $225, drawn 12th June, at thirty days; a renewal note for $527, due 8th July; and one for $300, due 19th July; in all $1052, leaving only $38.30, besides interest, uncovered. Then, on 9th July, the $527 note having fallen due and having been, as I assume, retired by the plaintiffs, they render another statement, beginning with the same balance of $1,100.31, crediting the $225 draft which was still current, and noting, as held on account, the note for $300, and another note accompanying that statement for $472. And they write: "Dear Sir, We trust you will be ready with your money on this day week for draft due at Wingham on that