the testator's negroes to his daughter,
in the manner following : " It is my
will and desire, that she have the be-
nefit of said negroes, either by keep-
ing them in specie, or selling them,
and having the proceeds of said sale ;
and the negroes and their increase,
or the proceeds of them, to be hers
forever, to be disposed of as she may
think proper, amongst her children and
grand-children, by will or otherwise."
The authorities were reviewed, and
the reasons for this course of decision
stated with much clearness, by Chil-



528



POWER COUPLED WITH TRUST.



ton, J., in the following language :
" These authorities, with many others
which might be cited, show the ten-
dency of modern decisions in Eng-
land, not to extend this doctrine of
implied trust from precatory words,
but to go back as far as may be con-
sistent with the current of their
previous adjudications, to what I
humbly conceive to be the true rule
of interpretation; that is, to give
such recommendatory expressions
their natural, ordinary and familiar
sense, and having arrived at the true
intention of the testator, to let that
intention, if lawful, be the rule of
decision in the particular case. Thus
the court will execute the will of the
testator, and not by a forced technical
construction of his words, make a will
for him.

" Applying this rule of interpreta-
tion to the case before us, we have no
hesitation in pronouncing, that the
will of Mr. Ellis does not create a
trust in favor of the complainant.
He recommends to his wife, to whom
the will says he gives his entire es-
tate, to make some small advance, at
her convenience, to each of his bro-
thers and sisters, say, to each one
thousand dollars. Now, it does seem
to me, that an ingenuous mind, in
search of truth, being required to as-
certain the intention of the testator,
giving to the language employed its
ordinary sense, would at once con-
clude, that the testator never intend-
ed the thousand dollar payments to
each of the complainants, as an im-
perative command. If he intended
it as a command, why did he not use
appropriate language? why not di-
rectly bequeath to them the money



which he merely recommends his wife
to give ? If he designed to fix abso-
lutely the amount to be paid, why use
the term, 'a small allowance?' If
such allowance was not intended dis-
cretionary with the wife, why make
its payment depend upon ' her con-
venience?' "

It is also plain, that although
words of wish or expectation, may
found a trust on what would other-
wise be an absolute estate, they will
not have that effect when it would be
repugnant to the tenor of the will, or
of any of its provisions. When, there-
fore, the testator made a settlement at
the time of his marriage, but retain-
ed a power of revocation by deed or
will, it was held, that a will which
began by expressly confirming the
settlement, would not revoke it by the
subsequent expression of a wish in-
consistent with its provisions ; Brun-
son v. King, 2 Hill, Ch." 483. And
it is equally well settled, that to give
birth to an estate or interest, by the
expression of a wish or desire, or by
words of any other description, .they
must be sufficiently full and explicit,
to disclose the testator's meaning;
Whipple v. Adams, 1 Metcalf, 415 ;
and in Crump v. Read, 6 Grattau,
372, the bequest of a chattel belong-
ing to the testator, coupled with the
expression of a wish, that the legatee
would hold and apply other chattels
which belonged to herself, for the be-
nefit of a third person, was held to
fall within this principle, and neither
to give rise to a trust in the property
which the testator did not own, nor
put the legatee to an election between
his rights under the will, and outside
of it.



REES V. BERRINGTON. 529

DISCHARGE OP SURETY.

*REES v. BERRINGTON. [*814]

REPORTED 2 VES. JUN. 540.

APRIL 28, 1795.

Release of Surety by the Creditor giving Time to Debtor.] — Olli-
gee in a bond with a surety, without communication with the surety, takes
notes from the principal, arid gives farther time; the surety is discharged.

Thomas, Daniel, and Richard Blachford, carried on business as lacemen,
in parnership, till the death of Thomas.

On taking the accounts, a balance of 2972?. 3s. 5c?. appeared to be due
from the partnership to Robert Pope Blachford, as administrator of Thomas ;
to secure which sum, and 466?. 13s. 4c?., (agreed to be secured to Robert
Pope Blachford, as Thomas's share of the debts due to the partnership,) a
joint and several bond, dated September 30th, 1787, was executed by the sur-
viving partners, and by James Rees as surety, with condition to be void on
payment of the said sums with interest, by instalments, upon the 31st of
December, 1789, and the 31st of December, 1790.

In the beginning of September, 1790, Robert Pope Blachford died.

Upon the 27th of September, 1790, the whole of the money and interest
secured by the bond remaining unpaid, James M'Kenzie, under the authority
and on behalf of the executors of Robert Pope Blachford, came to an arrange-
ment with Daniel and Richard Blachford, concerning the money due on the
bond and the interest, and, for the first instalment due on the bond, took their
promissory notes, payable on the 21st of April, 21st of July, *and rt n-. - ,
21st of October, 1791, and the 21st of January and 21st of April, - 1

1792 ; and, for the second instalment to become due upon the bond, took
three other promissory notes, payable on the 21st of July and 21st of Octo-
ber, 1792, and the 21st of January, 1793.

Daniel and Richard Blachford, at different times on and before the 18th
of October, 1792, paid to the executors of Robert Pope Blachford, or to
M'Kenzie, on their behalf, the first three of the first set of notes, and the in-
terest due upon them ; and about the 20th of October, 1792, by a new arrange-
ment all the remaining notes were exchanged for four other notes, dated
October 22nd, 1792, and payable on the 25th of May, 25th of June, 25th of
September, and 25th of December, 1793.

About the 7th of December, 1792, a commission of bankruptcy issued
against Daniel and Richard Blachford ; and the executors of Robert Pope
Blachford proved, under that commission, a debt of 2327?. 14s. lie?., by
virtue of the bond and the four notes dated October 22nd, 1792.

Rees was captain of an East India ship, and left England in April, 1788 ;

vol. in. — 34



;30 DISCHARGE OF SURETY.



returned in August, 1789 ; sailed again in April, 1791, and returned in July,
1792. In August, 1792, he had in his hands the sum of £3000, received by
him in India for Daniel and Richard Blachford ; and no communication
havino- taken place between him and the executors of Robert Pope Blachford,
respecting their transactions with Daniel and Richard, he ; in November, 1792,
paid over that sum to the Blachfords.

After the bankruptcy, the executors brought an action against Rees for
£2400, as remaining due on "the bond ; upon which he filed a bill for an in-
junction.

Solicitor- General and Mr. Hollist, for the plaintiff. — Skip v. Huey, 3 Atk.
91 ; Nisbet v. Smith, 2 Bro. C C. 579, and many early cases, support this
bill. This plaintiff could have indemnified himself by the money he had in
his hands in 1792. A surety is bound as such for the *debt and
■- -* risk described in the instrument, in case the principal does not pay.
The creditor has no right to increase the risk without consent of the surety,
and therefore cannot vary the original contract, for that varies the risk. If
the holder of a bill of exchange gives time to the acceptor, the indorser is
discharged, because he is simply a surety. The principle is the same upon
policies of insurance, in cases of deviation, however slight : Wescot upon
Insurance, 178.

Lord Chancellor Loughborough. 1 — It is perfectly settled; and even
where it is demonstrable that the alteration was perfectly immaterial, as in the
case of an African ship, that was to sail from Lancaster with so many men ;
in fact, she took part of her men at Beaumaris.

Mr. Graham, for the defendants. — It is not received as a general principle,
that the obligee in a bond is bound to call for the money on the very day ; it
seldom happens that the obligor thinks of paying at the day, or that the
obligee puts the bond directly in suit. The rule, as to the indorser of a bill
of exchange, arises from the course of trade, which requires it. A surety has
a right, if the bond is not put in suit, to call upon the holder of it to enforce
payment. The circumstance of his remedy in this Court marks the difference
between the cases. Still more different is the case of insurance from the
general course of trade, that, undertaking to indemnify against any loss in one
particular voyage, must be strictly adhered to. Here is nothing like a
fraudulent intention to throw the burthen on the plaintiff. It is too much to
say he is to be discharged, because they did suspend the action a short time ;
and it is not too much to assume, either that the indulgence was with his con-
currence, or that he was guilty of negligence, as he was in England a con-
siderable part of the time, and might have called on them to put the bond in
suit; and then he would have discovered that they had bound themselves not
to do so. In Nisbet v. Smith, 2 no ulterior time was given against the express

1 Afterwards Earl of Rosslyn. Variation from policy of insurance, though perfectly
immaterial, discharges the insurer.

2 2 Bro. C. C. 519.



REES V. BEERINGTOX. 531

directions of the surety ; upon which Lord Thurlow relied. * Heath v. r-^.^ ,_,

Percival, 1 P. Wms. 682, is a stronger case. There Percival might

be considered only as surety in a bond, and the time of payment was varied.

Lord Chancellor Loughborough. — Percival never could be a surety,
whether that case is right or wrong. He should have taken up his bond if
he went out of the trade. The form of the security forces these cases into
equity ; but, take it out of that form, and suppose, in this instance, that the
plaintiff was a surety by a proper bond at law as surety, what is the conse-
quence ? Where a man is surety at law for the debt of another, payable at a
given day, if the obligee defeats the condition of the bond, he discharges the
security. When they are bound jointly and severally, the surety cannot aver
by pleading that he is bound as surety ; but if he could establish that at law,
the principle at law is, that he has an interest in the condition ; and if the
period is extended, that totally defeats the condition, and the consequence is,
the surety is released from his engagement. Suppose a bond payable in six
months, with a surety, he does not become bound to answer the payment at
twelve months, where it was to be at six. The principle is a legal principle.
In this Court they all appear principals, but establish the fact that he is
surety ; he is surety to a definite, not an indefinite engagement.

Here, upon the second instalment, the defendants have extended the time
before that instalment became due ; if the time is extended after it becomes
due, that makes a difference at law, for then the bond has been once forfeited.
It is perfectly plain, from the nature of the engagement, that the plaintiff
became security that the debt should be paid at two periods ; one has elapsed.
The obligee thinks fit totally to change the nature of the security and the
credit ; he takes notes, gives a farther time of payment, and repeats the same
thing as to the second instalment, which was not then due ; and, doing this,
he does this material injury to the surety : he has a right, the day after the
bond is due, to come here and insist upon its *being put in suit : the mi8 ,
obligee has suspended that till the time contained in the notes runs
out; therefore, he has disabled himself to do that equity to the surety which
he has a right to demaud. If the application was proved, it is a duty to
comply with it. The defendants have put it out of their power to perform
that which the nature of the relation between the surety and the person with
whom he is bound requires. It is a breach of the obligation in conscience
and honesty ; and, it is not too much to say, of that obligation in point of law.
I cannot try the cause by inquiring what mischief it might have done ; for
that would go into a vast variety of speculation, upon which no sound prin-
ciple could be built ; but it is plain here, if the plaintiff had been informed of
these transactions and the situation of the debtors, their difficulties and delay
in performing the prior engagement, he never would have been so foolish as
to have parted with the money in November, 1792 ; and the money in his
hands was a full security. I do not ground much upon it, for the case would
be the same if those circumstances had not come out clearly in evidence.
This produces no inconvenience to anyone; for it only amounts to this,



J32 DISCHARGE OF SURETY.



that there shall he no transaction with the principal debtor, without acquaint-
in«- the person who has a great interest in it. The surety only engages to
make good the deficiency. It is the clearest and most evident equity, not to
carry on any transaction without the privity of him who must necessarily have
a concern in every transaction with the principal debtor. You cannot keep
him bound and transact his affairs (for they are as much his as your own)
without consulting him. You must let him judge whether he will give that
indulgence contrary to the nature of his engagement.

The authorities fully warrant me in this, though I should have granted the
injunction, even without that strong authority before Lord Thurlow 1 which is
rather less favorable for the surety. There, the creditor being called upon,
r*£icn did put the bond in suit. If he had *proceeded, the consequence
^ would have been only that he would have had the person in custody ;

it would have been no payment, thinking, that, by leaving the debtor at large,
and taking a judgment against him which affected all his property, he pur-
sued a better mode; using his discretion, and acting upon his own account,
he thought it better to give stay of execution than to have confounded the
affairs of the man by destroying his credit and holding him in prison ; but he
did it without consulting the surety, and, therefore, Lord Thurlow held, and
very rightly, that the surety was discharged.

The transaction in this case was much more mischievous; after circum-
stances of communication that showed great embarrassment, great difficulty,
and great distress, indulgence was from time to time given, under circum-
stances apparently very hazardous, without any communication with this man,
who had so great an interest, and who, in the interval, had given up the fund,
which, probably, was the inducement to him to be the security.



Without entering into a review of those cases in which a surety may be
discharged from his liability by the appropriation of payments made by the
principal to the creditor, or by the creditor, or which would be made by the
law, it is proposed in this note to consider the subject discussed in the prin-
cipal case, viz., what acts, on the part of the creditor, will have the effect of
discharging a person from his liability as surety.

In examining the cases upon this subject, it must be kept in mind that the
intimate nature of the relation between the parties to the contract of surety-
ship, requires that perfect good faith should be adhered to by them. Wherever,
therefore, there is any misrepresentation, or even concealment, from the surety,
of any material fact, which, had he been aware of, he might not have entered
into the contract of suretyship, it will thereby be rendered invalid, and the
surety will be discharged from his liabilities ; Allan v. Houlden, 6 Beav. 148 ;

Cecil v. Plaistow, 1 Aust. 202 ; Mkldleton v. Lord Onslow, 1 P. Wms. 768 ;

Pidcock v. Bishop, 3 B. & C 605; S. C, 5 Dow. & By. 505; Peel v. Tat-

1 Xisbet v. Smith, 2 Bro. C. C. 579.



REES V. BERKINGTON. 583



lock, 1 Bos. & P. 419 j Stone v. Compton, 5 Bing. *N. C. 142 ; Jack-
son v. Duchaire, 3 T. R. 551; Smith v. Bank of Scotland, 1 Dow. ^
272 ; Fishmongers' Company v. Maliby, 1 Dow, 294, cited ; Espey v. Zra&e,
10 Hare, 260 ; Willis v. Willis, 17 Sim. 218 j Squire v. Whitton, 1 H. L. Cas.
333; Omjcji v. Homan, 3 Mac. & Gr. 378; 4 H. L. Cas. 997. See and con-
sider Walker v. Eardman, 4 C & F. 258 ; Railton v. Matthews, 10 C. & F.
934; Hamilton v. Fatam, 12 C. & F. 109; North British Insurance Company
v. Lloyd, 10 Exch. 523.

So, if in the contract, between the principal debtor and the creditor, there

is a departure from that which the surety stipulated for and contemplated

when he entered into the obligation, the surety will be released. Thus, in

Bonser v. Cox, 4 Beav. 379, John Cox agreed to become a surety for Richard

Cox in a joint and several bond to the firm of Cox & Morrell, upon having a

counter-bond from the firm of Cox & Davies, to indemnify him. The bond

to Cox & Morrell, however, was executed by John Cox only, Cox & Morrell

having neglected to obtain the signature of Richard Cox. The counter-bond,

however, was given by Cox & Davies to John Cox. It was held by Lord

Langdale, M. R., that John Cox the surety was released, in consequence of

Richard Cox not having executed the bond. "I think it cannot," said his

Lordship, " upon any principles on which this Court acts, be doubted that

the surety has an interest, and a most material interest, in the rights and

remedies which the creditor has against the principal debtor ; he is not to be

held bound where the situation of circumstances, in respect to the rights and

the remedies which the creditor has against the principal debtor, are different

from that which was contemplated by himself and all other parties. I do not

think that it is material to inquire in what way the surety contemplated benefit

or protection to himself, by stipulating that a particular remedy should be

held by the creditor against the principal debtor. A man may reasonably

say, 'I will be surety to you for payment of such a sum, provided you have it

secured by the bond of the principal debtor, but I will not be your surety

upon any other terms.' the surety in this case has a right to say, ' The

arrangement was, that Mr. Richard Cox as well as myself, should be held

bound by bond to the creditor. That arrangement never was carried into

effect.' The circumstance of Mr. Richard Cox being held by bond to the

surety, does not appear to be material in this case." This decision on appeal

was affirmed by Lord Cottenham. See 4 Beav. 383, and Rice v. Gordon, 11

Beav. 265; 14 Beav. 508. Sed vide Cumberlege v. Lawson, 1 C. B., N. S.

709.

*Upon the same principle where the creditor had prepared a deed, p,.™-.-,
so as to show 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; it was held by Sir



534 DISCHARGE OF SURETY.



W. Pa^e Wood, V. C, that the surety who had executed the deed was entitled
in equfty to be relieved from all liability on the covenant. Evans v. Brem-

ridge, 2 K. & J. 174.

So where a person gave a promissory note as a surety, upon an agreement
that the amount should be advanced to the principal debtor, by draft at three
months' date, and the creditor, without the concurrence of the surety, paid
the amount at once, instead of giving the draft, it was held by Lord Langdale,
M. R., that the agreement had been varied; and the surety was therefore dis-
charged. His Lordship, referring to Bacon v. Chesney, 1 Stark. 192, observed,
" that a man may have reason to believe that a person in pecuniary difficulty
may effectually redeem his affairs if allowed time, and may be willing, on the
assurance of the required time being allowed, to become surety for the pay-
ment of a particular debt at the end of that time, and yet would not become
surety unless such time were fully assured to the principal debtor. These
circumstances which a person advancing money on the security, and claiming
the benefit of the suretyship, has not any right to alter. It is not enough
that he voluntarily forbears to demand payment during the time for which
the surety had stipulated ; the surety did not intend to rely on his forbearance j
but rested on an agreement or condition, that the principal debtor should have
the time assured to him, and should thereby have an assured and not a pre-
carious freedom during that time.' His conduct for his own protection might
be materially affected by the difference. And if that stipulated time be not
o-iven, and no arrangement of the surety to waive it is shown, the situation of
the surety is improperly altered, and he is released :" Bonser v. Cox, (3 Beav.
110. This case, on appeal, was affirmed by Lord Cottenham : see 6 Beav.
118. And see S. C, 4 Beav. 383.

Not only at the time of entering into the contract, but in all subsequent
transactions, the creditor is bound to act with perfect good faith towards the
surety; and a departure from it will have the effect of releasing him. Upon
this principle, although mere delay in not suing the debtor when *the
[*82-d c | e ^ t becomes due, will not discharge the surety, ( Wright v. Simpson^
6 Ves. 734 ; Heath v. Hay, 1 Y. & J. 434,) if the creditor, as in the principal
case, enters into any binding contract, the effect of which will be to give
further time to the debtor, without consulting the surety, the surety will be
thereupon discharged, and it is immaterial that the further time is given in
consequence of the inability of the debtor to pay, or that no injury could
thereby accrue to the surety. This is clearly laid down by Lord Loughborough
in the principal case, and by Lord Eldon, in the important case of Samuell
v. Hoicarth, 3 Mer. 272. There A. guaranteed the payment of any goods to
be supplied by B. to C. between the 2nd of April, 1814, and the 2nd of April,
1815. C. having accepted bills for the amount of the goods delivered, B.
permitted him to renew them when payable, without any communication to
A. on the subject of such renewal. It was held by Lord Eldon, that, although
no period of credit was specified, it could not be taken as a guarantee for an
unlimited period, but to be restrained by the usual course of trade ; and that



REES V. BERRINGTON. 535

A. was discharged from his guarantee by virtue of the rule, that a creditor
giving further time to the principal debtor, without the consent of the surety,
releases the surety. " The rule," observed Lord Eldon, is this, " that if a
creditor, without the consent of the surety, gives time to the principal debtor,
by so doing he discharges the surety, that is, if time is given by virtue of
positive contract between the creditor and the principal, — not where the cre-
ditor is merely inactive. And in the case put, the surety is held to be dis-
charged, for this reason, because the creditor, by so giving time to the prin-
cipal, has put it out of the power of the surety to consider whether he will
have recourse to his remedy, against the principal, or not, and because he, in
fact, cannot have the same remedy against the principal as he would have

had under the original contract It has been truly stated, that the

renewel of these bills might have been for the benefit of the surety; but the
law has said, that the surety shall be the judge of that, and that he alone has
the right to determine whether it is or is not for his benefit. The creditor
has no right — it is against the faith of his contract — to give time to the prin-
cipal, even though manifestly for the benefit of the surety, without the con-
sent of the surety." See also Skip v. Huey, 9 Mod. 438 ; 3 Atk. 91 ; Nisbet
v. Smith, 2 Bro. C. C. 579; Clarke v. Henty, 3 Y. & C. Exch. Ca. 187;
Oalceley v. Paslieller, 10 Bligh, N. S. 548 ; 4 C. & F. 207 ; English v. Bar-
ley, 2 Bos. & P. 61 ; S. C, 3 Esp. 44 ; Eyre v. Bartrop, 3 Madd. 221 ; Cross
v. Sprigg, 6 Hare, 233 ; 2 *Hall. & T. 233 ; 2 Mac. & G. 113 ; and
see Hawkshaw v. Parkins, 2 Swanst. 539 ; Richard Burke's case, L - 1 J
cited 2 Bos. & P. 62; Bavies v. Stainhank, 6 De G. Mac. & G. 679 ; Pooley