than £5000 a year. There was a trust imposed that the creditors of Colvile should be paid if they came in within a year. It was intended to give the executrix of Colvile the benefit of the rent; but as Colvile had become greatly involved, probably owing to the delay in payment of this debt due to him from the Crown, it was thought right that a provision should be made for his creditors, and the property was given to the husband of his executrix, upon condition of her paying those creditors who should come in within a year. A bill was then filed by creditors who came in afterwards, and the Court held that those creditors should have the benefit of the grant; and whenever the exact point arises for decision that case will have to be considered; and if it be held that creditors are not admissible after the prescribed period, I think that Dunch v. Kent must be overruled.

But I do not think that this case requires the aid of authority. On what principle has equity given relief? A debtor intends by a deed of this kind to provide for all his creditors. The intention of the creditors who execute may be different. They may be inclined to give their assent, because they are anxious for a speedy distribution of the property. They can-[172]-not be held to intend to exclude a bona fide creditor who comes in within a reasonable time, though it may be said that they executed on the faith that a few creditors only would execute the deed. What is the duty of the trustees? Clearly, whether themselves creditors or not, they ought not to desire the exclusion of any. Accordingly, in this case they issued an advertisement, and they did not thereby inform the creditors that those who executed before the 22d of July would have all the property, and that the other creditors would be excluded; but they intimated that the trustees had the power of extending the time within which the creditors were to execute. I think, therefore, that this case differs in this respect from the other authorities. The trustees knew that the Plaintiff, Raworth, was a large creditor, that he was abroad, having absconded, and could not easily be communicated with. They knew that his friends were anxious that he should be let in under the deed. A demand was made on his behalf at a time when they could have extended the period for executing the deed. I do not think that this is like a case of arbitration, or that it is quite clear that they could not afterwards have extended the time; but I assume that they had power to do so up to the 22d of July, and not afterwards. What was their duty? They felt that they were bound to let all the creditors have fair notice of the deed. They knew that there was a large creditor whose friends were anxious that he should be let in, who could not easily be communicated with; and that the only information he had of the matter was that such a deed was likely to be executed. It seems to me that under the circumstances it was the plain duty of the trustees to enlarge the time for executing the deed. I therefore think that this case is free from the difficulties which might otherwise have arisen. There seems to have been no necessity for an immediate realisation of the property, nor any other circumstance to prevent the trustees extending the time; and I am of opinion that it would be a [173] departure from every principle of equity to say that trustees— and if they are themselves creditors it would amount to more than a mere disregard of their duty as trustees-are at liberty, by refusing to extend the time, to exclude a creditor who, as they knew, was prevented by his absence abroad from coming in within the time. I do not impute any wrong intention to them; they were acting on behalf of a large body of creditors; but when they were aware that the Plaintiff was such creditor and was at a distance, since they had the power to give him an opportunity of proving his case, it was their duty to do so.

The Defendants waived further proof of the execution of the power of attorney, and the following is a minute of the decree made :

Declare that the Plaintiff is entitled to the benefit of the deed and of such debt as he shall establish.

Inquire what is now due to the Plaintiff, and all other the creditors entitled to come in under the deed.

Take an account against the trustees of their receipts and payments.
Costs of the suit to the hearing out of the fund. Reserve subsequent costs.

[174] EVANS v. BREMRIDGE. Dec. 7, 11, 1855.

[Affirmed, 8 De G. M. & G. 100; 44 E. R. 327 (with note, to which add Ellesmere Brewery Company v. Cooper [1896], 1 Q. B. 81).]

Co-sureties. Execution of Deed by one only. Alteration of Position. Equitable Relief.

The relief granted in equity to one of two sureties in a deed, whose position has been altered by the acts of the creditor, is to have the deed delivered up to be cancelled. Where the creditor had prepared the deed, so as to shew, on the face of it, that it was intended to contain a joint and several covenant by two co-sureties, and had sent it in that form to be executed by one of such sureties, but had not procured the execution of it by the other surety, and had not informed the surety who had executed it of this fact; but, on the contrary, had afterwards written to him as one of the sureties," the principal debtor having become insolvent: Held, that the surety who had executed the deed was entitled in equity to be relieved from all liability on the covenant.

Semble, that if a creditor release by deed one of two sureties, who are jointly and severally liable, the other is also discharged.

The dicta to the contrary in Ex parte Giffard, 6 Ves. 805, have not been followed.

In 1849 the Reverend George Elton applied to the Anchor Assurance Company for the loan of £210, and they consented to make such loan upon the terms that he should effect a policy of assurance with them upon his life for the sum of £400, and should assign the same to trustees for the company, and should procure two responsible persons to join him in covenants for the repayment of such loan and interest by instalments, and for the payment of the premiums on such policy of assurance. Elton thereupon applied to the Plaintiff to become one of such sureties, stating that one William Bradley would be the other surety; and the Plaintiff assented to such request. Elton thereupon gave to the company the names of the Plaintiff and of William Bradley, who was an uncle of Elton, as his proposed sureties for such loan; and the company consented to make such loan, and prepared a policy of assurance on the life of Elton, and also an indenture, dated the 22d of February 1849, and which purported to be made between Elton (who was thereinafter, for the sake of brevity, styled "the said borrower") of the first part, the Plaintiff and the said William Bradley (sureties of the said borrower) of the second part, and the Defendants, Bremridge, Wertheimer and Wilson, of the third part; and thereby, after reciting that by a policy of assurance of the Anchor Assurance Company, dated the 22d of February 1849, and numbered 1189, the funds and other property of the [175] said company were charged with and rendered subject and liable to the payment, to the executors, administrators or assigns of the said borrower, of £400 within three months after satisfactory proof of his decease, subject to the payment of the premium and to the provisoes and conditions in the said policy expressed; and that the said borrower had agreed with the said parties thereto of the third part for the loan of £210 on the security of an assignment of the said policy, and on the security of the joint and several covenants therein contained it was witnessed that, in consideration of the sum of £210 to the said borrower paid by the said parties thereto of the third part immediately before the execution thereof, the said borrower assigned the policy to the said parties thereto of the third part, subject, nevertheless, to a proviso avoiding the indenture in case the said borrower, his heirs, executors or administrators, should pay unto the said parties thereto of the third part, their executors, administrators or assigns, the said principal sum of £210 by equal half-yearly instalments of £70 each on each succeeding 22d day of August and 22d day of February until the whole of the said principal sum should be paid, together with interest at £5 per cent. per annum on so much of the said principal sum as should from time to time remain unpaid, the first of such instalments to be paid on the 22d day of August then next (the covenants

thereinafter contained being fully performed). And the said borrower and the said parties thereto of the second part, for themselves, their heirs, executors and administrators, thereby jointly and severally covenanted with the said parties thereto of the third part, their executors, administrators and assigns, that they, the said parties thereto of the first and second parts, or some or one of them, their or some or one of their executors or administrators, would pay to the said parties thereto of the third part, their executors, administrators or assigns, the said instalments and interest on the several days and times aforesaid, and that if [176] default should be made in payment of any or either of the said instalments and interest, or any part thereof as aforesaid, then that they, the said parties thereto of the first and second parts, or some or one of them, their or some or one of their executors or administrators, would pay to the said parties thereto of the third part, their executors, administrators or assigns, upon request, the whole of the said principal sum and interest, or so much thereof as should remain unpaid; and that they, the said parties thereto of the first and second parts, or some or one of them, their or some or one of their executors or administrators, would from time to time during the life of the said borrower, until all moneys purported to be secured by the said indenture should be fully paid and satisfied, pay the premiums, duty and expenses which ought to be paid for keeping the said policy on foot, and for effecting and keeping on foot every renewed and substituted policy. And that in case default should be made in payment of any such annual premiums, duty or expenses, it should be lawful for the parties thereto of the third part, their executors, administrators and assigns, from time to time, so long as any money should remain secured by the said intended indenture, to keep on foot such assurance as aforesaid, and, in case of the forfeiture or determination of the said policy, to renew the said policy or effect a substituted policy with the said company for the like amount upon the life of the said borrower, and to pay or retain the premiums and other expenses thereon; and that the said parties thereto of the first and second parts, or some or one of them, their or some or one of their executors or administrators, would, upon request, pay unto the said parties thereto of the third part, their executors, administrators or assigns, all such money as they or he should expend in or about, or be reasonably entitled to receive or retain for or in respect of keeping on foot such assurance as aforesaid, and for and in respect of renewing the said policy or effecting any such substituted policy as afore-[177]-said, with interest thereon at the rate of £5 for every £100 by the year; and that the said policy and every such renewed and substituted policy should be a security for the repayment of the same sums and interest in addition to the said sum of money intended to be thereby secured as aforesaid, and the interest thereof, and the costs, charges and expenses occasioned by the non-payment thereof, but so, nevertheless, that the total amount of principal money to be ultimately recoverable under the said indenture should not exceed the sum of £300.

Elton executed this deed on the day of its date, and then took it to the Plaintiff at Worcester, where the Plaintiff executed it and returned it to Elton. And the Anchor Assurance Company afterwards advanced to Elton the sum of £210 less certain deductions.

The other surety, William Bradley, never executed the deed.

On the 28th of March 1849, John Robert Dalby, the then manager of the said company, sent to the Plaintiff the following letter:

"Anchor Life Assurance Company, 30 Sackville Street, Piccadilly, London, March 28th, 1849.-Sir,-The directors expect undeviating punctuality in the return of all moneys advanced by this company, as by the contract of assurance nothing will become payable to the assured in case of death unless the premiums of insurance, as well as the instalments and interest on any loan made to them by the office, be regularly paid. I therefore beg to forward for your particular guidance the subjoined list of instalments as they severally become due upon the Reverend George Elton's loan of £210, which sums must [178] be paid on the day they respectively fall due, otherwise immediate application will be made to the sureties, and the policy of assurance will at the same time become void.—I am, Sir, your obedient servant, "JOHN ROBERT DALBY, Manager."

George Elton did not pay the instalment which became due on the 22d of August 1849; and Mr. Dalby, on the 11th of September 1849, sent to the Plaintiff another letter as follows:

"September 11th, 1849.-Sir,-The Reverend G. Elton having failed to pay up the arrears due on the loan advanced to him by this office, I am directed by the board to apply to you as one of his sureties for the immediate payment of the same, in order to prevent instructions being given to our solicitor to recover the entire amount remaining due to the company.-I am, Sir, your most obedient servant, "JOHN R. DALBY, Manager."

And on the 18th of the same month a clerk of Mr. Cleoburey, who was the solicitor of the company, sent to the Plaintiff the following letter: :

"18th September 1849.-Sir,-The Reverend Mr. Elton having failed to pay up his instalment due from him to the Anchor Assurance Company, my instructions are to issue writs against the [179] sureties, unless the amount due be paid at my office as above before Saturday next, with 5s. for this application. I am, Sir, your obedient servant, "For Mr. Cleoburey, G. W. PRESCOTT."

"N.B.-This business having been placed in my hands, it will be useless to make any application to the office."

In reply to such applications, the Plaintiff, who was then the solicitor of George Elton, acting upon his representations, applied for delay until the then following Christmas, to which request the said company acceded.

At the following Christmas the property of the said George Elton was sold, and did not produce sufficient to enable him to make any payment to the said company. On the 19th of January 1850 the Plaintiff called at the office of the company to inquire the address of William Bradley, and then ascertained for the first time that William Bradley had never executed the said indenture, and that the company had advanced the said sum of £210 less some deductions to the said George Elton, and he had delivered over to them the said indenture executed by himself and the Plaintiff only, alleging that he was very anxious to go out of London on that day, and stating that the said William Bradley would call and execute the said indenture on the then following day, which, however, he did not do.

In consequence of such discovery, the Plaintiff insisted that he was not liable upon the indenture, or at all events, not liable for more than one moiety of the moneys due thereunder.

The company, however, on the 28th of May 1855, caused an action to be commenced against the Plaintiff in the [180] names of the Defendants, Bremridge, Wertheimer and Wilson, to recover the sum of £210, with interest thereon from the 22d of August 1849, and a premium of £19, 14s. 8d., which became payable on the policy on the 22d of February 1750. The Plaintiff, Evans, the Defendant at law, pursuant to the statute 17 & 18 Vict. c. 125, s. 83, pleaded by way of equitable plea the facts and circumstances above mentioned, to which the Plaintiff at law demurred. The action at law was still pending, and the demurrer was set down for argument.

The Plaintiff now filed the bill in this suit, alleging that he had executed the said indenture on the faith that William Bradley would afterwards execute it as his

co-surety, and praying a declaration that the Plaintiff was in equity discharged from all liability under the said indenture, and that such indenture might be decreed to be cancelled so far as the Plaintiff was concerned, or that, at all events, it might be declared that the Plaintiff was not liable in equity for more than one moiety of the moneys due thereunder, which he was ready and offered to pay if necessary; and for an injunction to restrain the Defendants from further prosecuting their action against the Plaintiff as aforesaid, and from commencing any other action against the Plaintiff upon the said indenture.

Mr. Rolt, Q.C., and Mr. Southgate, for the Plaintiff.

The Plaintiff is discharged from all liability, because he executed the deed upon the faith that his liability was to be joint and several; and the Defendants ought to have procured the deed to be executed by the other surety, which they did not do, nor did they inform the Plaintiff that this was not done, but, on the contrary, wrote to him afterwards as one of the sureties: Underhill v. Horwood (10 Ves. 226; 14 Ves. 28), [181] Bonser v. Cox (4 Beav. 379; 8 Jur. 387), Leaf v. Gibbs (4 Car. & P. 466), Pidcock v. Bishop (3 B. & C. 605), Whitcher v. Hall (5 B. & C. 269), Stone v. Compton (1 Arnold, 436).

Mr. Chandless, Q.C., am. cur., mentioned Rice v. Gordon (11 Beav. 265), where a person having signed as surety for a firm a joint and several bill of exchange, on the faith that another person would sign it as co-surety with him, such other person not having signed he was held to be discharged from liability as between himself and the firm.

Mr. Shapter, for the Defendants.

The Plaintiff ought not to have come to a Court of Equity at all. A Court of law could give him relief against his liability under this deed, if he is entitled to any, by making him pay part of the amount only: Wodehouse v. Farebrother (19 Jur. 998). And, having pleaded an equitable defence at law, the whole jurisdiction over the case. was at law: Frank v. Basnett (2 Myl. & K. 620). [THE VICE-CHANCELLOR. That does not oust the jurisdiction of this Court. (Note.-See Farebrother v. Welchman, 24 L. J. (N. S.) Ch. 410.) It only affects the question of costs.]

This instrument, it is admitted, is binding to some extent at law. The Defendants only seek to make the Plaintiff liable for half the amount secured. This Court cannot grant the Plaintiff relief to any greater extent. Ex parte Giffard (6 Ves. 805), Latch v. Wedlake (11 Ad. & E. 959).

There is no question of contract in the case. The rights of a principal and sureties depend upon the equities between [182] the parties. In Austin v. Howard (7 Taunt. 28, 327) a plea by one of two sureties to a replevin bond, that it was not executed by the other surety, was held to be bad, and the Court recommended the Plaintiff to take half, and that is the equity of the case. It is true that a doubt was thrown out whether the surety might not have succeeded if he had pleaded that he executed the bond only as an escrow until it was executed by the other surety. But there is no foundation for that: In re Semple (3 J. & L. 488).

Mr. Rolt, Q.C., in reply.

THE VICE-CHANCELLOR reserved his judgment.

Dec. 11. THE VICE-CHANCELLOR Sir W. PAGE WOOD. The only question in this case is how far the Plaintiff in equity is entitled to be relieved from the consequences of a covenant entered into by him in a deed purporting to be made between him and the Anchor Insurance Company, a third person who had borrowed money from the company, and another party whose name was introduced into the draft deed as a co-surety with the Plaintiff for the borrower.

From the form of the deed, which was prepared by the insurance company and sent by them to the Plaintiff, it is beyond question that the original intention of all parties was that the Plaintiff and William Bradley should be co-sureties for Elton, the borrower of the money, and that they should be jointly and severally bound. Elton and the Plaintiff alone executed the deed, and the company took possession of it so executed, and did not procure it to be executed by the other surety. The Plaintiff was left in ignorance of that fact, and recently letters have been written to him on behalf of the company, in which they call upon him to pay as one of the sureties.