When obligor will to reduce the verdict to £500, to which only it was contended the sureties could be liable by virtue of the recital in the condition.(ƒ) The obligor of a bond, conditioned for the paybe estopped. ment of rent at the rate of a certain sum a year, "according to an indenture of lease," is estopped in an action on the bond from saying that the rent reserved by the indenture was a different sum a year.(g) a bond. Impossi- Where the condition of a bond is originally imbility of the condition of possible, the bond is absolute. Where the condition is originally illegal, the bond is void. Where the condition subsequently becomes impossible by the act of the obligor, or of a stranger, the bond is forfeited. Where it becomes impossible by the act of the obligee, the bond is saved.(h) Liability of sureties. The liability of a surety in a bond is not discharged by the delay of the creditor suing, or by the circumstance of the principal afterwards executing to the creditor another bond for a larger sum.(i) A surety may be sued in the first instance; but if the creditor sues the principal first and gives time, the surety is discharged.(j) But it is no defence at law to an action on a bond against a surety that by a parol agreement time has been given to the principal.(k) If the obligee in a bond with a surety, without communication with the surety, take notes from the principal and gives further time, the surety is discharged. (1) The (f) Ingleby v. Mousley, 3 M. & Scott, 488. (9) Lainson v. Tremere, 3 Nev. & M. 603. 1 Adol. & Ellis, 792. (i) Eyre v. Everett, 1 Russ. 381. (1) Wright v. Simpson, 6 Ves. jun. 734; and see Nisbet v. Smith, 2 Bro. C. C. 579. The surety will be discharged by the bond creditor entering into a binding contract with the principal without the concurrence of the surety, because the creditor has put it out of his own power to enforce immediate payment where the surety would have a right to require him to do so.-Archer v. Hall, 1 Moo. & P. 285. 4 Bing. 464; and see Orme v. Young, Holt, 84, S. P. 4 Cainp. 336. And giving time to the principal the grantor of an annuity exonerates the surety from past as well as future arrears.-Eyre v. Bartrop, 3 Madd. 221. (k) Davey v. Prendergrass, 5 B. & A. 187. 2 Chit. 336. (1) Rex v. Berrington, 2 Ves. jun. 540. And if the creditor sues the principal by direction of the surety, but without his privity agrees to stay execution, the surety is discharged.-Id. obligee and principal in a replevin bond, without the knowledge of a surety, entered into an agreement for a reference of all matters in dispute between them to arbitration, and afterwards the principal gave a cognovit acknowledging the obligee's right to distrain for the sum awarded, and authorising judgment of non pros. to be entered up in the ensuing term, which was a term later than that in which, according to the usual course, judgment might have been signed;-it was held that the surety was discharged from his obligation.(m) It appears a court of equity will not relieve a surety by bond upon the ground of the creditors having given time to the principal debtor, unless there has been an express and positive contract between them for that purpose.(n) A surety may protect himself by stipulating in the guarantee that he shall be at liberty to determine his liability at the expiration of a specified time after notice.(o) Where a surety entered into a bond with a Bankruptcy principal, conditioned for the performance of covenants contained in an agreement for a lease, such surety is still liable, although the principal become bankrupt, and be discharged under the act.(p) tion. If a creditor execute a deed of compromise with Composi the principal debtor, he thereby discharges the surety.(q) principal. Although time given to the principal will, under When time certain circumstances, exonerate a surety, yet time given by given to a surety will not, upon his paying the debt, affect his right of action for contribution against such co-surety.(r) There is a right of (m) Bournaker v. Moore, 1 Dan. 264. (n) Heath v. Key, 1 Y. & 1. 434. o Calvert v. Gordon, 3 M. & R. 124. 1 M. & R. 497. 7 B. & C. 809. (p) Inglis v. Macdougal, 1 Moore, 196. (9) But not so if it be stipulated in the deed of composition that the remedies against the sureties shall be reserved.-Id. And the creditors executing a deed of composition with the principal debtor, and certain of his sureties, may reserve their remedies against other sureties.-Ex parte Carstairs, Buck. 560. But parol evidence as to such reservation cannot be admitted.-Id. (r) Dunn v. Slee, 1 Moore, 2. Holt, 399. A surety in an indemnity bond may maintain assumpsit against his co-surety, although he have Co-sureties. Contribu ties. contribution between co-sureties, whether by separate instruments, or by the same instrument.(s) But where sureties are bound by different instruments for equal portions of a debt due from the same principal, and the suretyship of each is a distinct transaction, there is no right of contribution between them. (t) A promise by one surety to indemnify another need not be in writing.(u) It seems that one of several co-sureties in a bond may recover any one of the others his aliquot proportion of the money paid by him under the bond, regard being had to the number of sureties.(v) If A., B., and C., become bound as sureties for tion of sure- D. in three separate bonds, and any one of them be compelled to pay the whole debt of the principal, the two others are compellable to contribute in proportion to the penalties of their respective bonds.(w) The effect of the principal debtor. In general, a release to a principal debtor is in a release to equity a release to the surety; but if the surety has, previously to the release given by the creditor, paid part of the debt, and given a security for the remainder, the general rule will not apply; but the creditor, notwithstanding the release, will, in the absence of evidence to the contrary, retain his right given a subsequent security to the obligees under which he paid the sum conditioned in the bond, without the knowledge or consent of such cosurety.- Id. (s) Mahew v. Cricketts, 2 Bing. 185. 1 Wils. C. C. 418. S. P. Craythorn v. Swinburne, 14 Ves. jun. 160. (t) Coope v. Twynam, 1 Turn. & Russ. 426. The doctrine of contribution amongst sureties is not founded on contract, but is the result of general equity, on the ground of equality of burden and benefit. Therefore, where three sureties are bound by different instruments, but for the same principal, and the same engagement, they shall contribute.Deering v. Winchelsea (Earl), 1 Cox. 318. 2 B. & P. 270. (u) Not being considered within the third section of the statute of frauds.-Thomas v. Cooke, 3 M. & R. 444. 8 B. & C. 728. In this case a person entered into a bond of indemnity at the request of another, who promised to save him harmless from all loss by reason of the bond, this promise was held binding, though not in writing, and that the person might recover the whole of the moneys from the other surety, (so promising to indemnify him,) which he was compelled to pay by virtue of the bond. (v) Even though the insolvency of the principal and of the other sureties be not proved.-Cowell v. Edwards, 2 B. &. P. 268. (w) Deering v. Winchelsea (Earl), 2 B. & P. 270. 1 Cox, 318. against the surety.(x) Where an obligor has, by vexatious proceedings, delayed the obligee from recovering on his bond, a court of equity will decree payment of the full amount of principal and interest, although it exceeds the penalty of the bond.(y) The statute 8 and 9 W. III., c. 11, s. 8, which enacts that in actions on any penal sum for nonperformance of covenants, &c., the plaintiff may assign as many breaches, &c.; and if judgment. shall be given for the plaintiff on nil dicit, the plaintiff may suggest on the roll as many breaches, &c., as he shall think fit, upon which shall issue a writ to the sheriff to summon a jury before the justice of assize, &c., to inquire, &c., and to assess the damage, &c., is compulsory on the plaintiff, and he cannot enter up judgment for the whole penalty on a judgment by default, as he might have done at common law.(2) (x) Hall v. Hutchinsons, 3 Mylne & K. 426. (y) Jendwine v. Agate, 3 Sim. 129. (z) Rose v. Rosewall, 5 T. R. 538; and see S. P. Hardy v. Bern, 5 T. R. 636; and see the above act as to proceedings on bonds; and see 3 and 4 W. IV., c. 42, s. 3, as to the limitation of time for bringing actions on bonds, being ten years after the end of session 1833, or within twenty years after the cause of action accrued, and making an acknowledgment in writing, extend the term for a further period of like limitation. bidder. CONDITIONS OF SALE. (1.) Conditions of Sale of leasehold Property. The highest 1. THAT the highest bidder shall be declared the purchaser; and if any dispute shall arise between two or more bidders, the estate shall be immediately put up again. Advance. Deposit. Assignment 2. That no person advance less than ten pounds at each bidding. 3. That the purchaser shall pay down immediately into the hands of Mr., a deposit of £20 per cent. in part of the purchase money, and sign an agreement for payment of the remainder on or before the day of, &c., to which time all outgoings will be cleared; but in case any delay, from any cause whatsoever, should arise, to prevent the completion of the contract, on or before the said day of, &c., then the purchaser is to pay interest on his remaining purchase money, at the rate of £4 10s. per cent. per annum; but, nevertheless, this stipulation to be without prejudice to the vendor's right to insist on the performance of the last condition. 4. The purchaser to have a proper assignment of to be made. the lease (at his own expense) on payment of the remainder of the purchase money, agreeable to the third condition, and possession will be given on completing the purchase; but the vendor is not to give any other title than the lease (and assignments thereof) with all the usual covenants; (a) and the purchaser shall not be entitled to require or call (a) If it be an occupation lease say, "And which lease is granted to the (assignor), subject to the following rent and covenants on the lessee's or assignee's part to be paid, performed, and kept, (that is to say,") (here set forth an abstract of the covenants).-See pp. 69 and 85, and then the following part of the fourth condition may form a separate provision. |