1818. BEDFORD against DEAKIN Gaselee, contrà. The plaintiff, in this case, had a full knowledge that the agreement between Bickley and Deakin was, that the former should pay this debt; for this was communicated to him by Birch. He then takes from Bickley three notes, to the amount of the debt and interest; and afterwards, in the absence of Deakin, gives time to Bickley on all the notes, and even successively renews two out of the three. After that, he must be taken to have accepted the securities given by Bickley, one of the partners, as a satisfaction for the original debt due by all of them; and that, on the authorities of Reed v. White, and Evans v. Drummond, will entitle Deakin to the judgment of the Court. All that Deakin could look to was the conduct of the plaintiff; and from the circumstances stated, and the length of time elapsed, he might naturally conclude the whole was settled. And the giving time to Bickley by the plaintiff was sufficient to exonerate him. Abbott C. J. Can it be contended that Deakin could, under the deed stated in the case, have demanded that the plaintiff should sue Bickley on these bills? In the case of principal and surety the latter may do so. And if, therefore, the creditor have, by giving time to the principal, disabled himself from complying with the surety's demand, the latter is discharged. That is the foundation of the rule which was originally established in equity but that does not apply to a case like this.] In English v. Darley (a), and Gould v. Robson (b), it was held, that taking a fresh security from the acceptor of a bill discharged the indorsers; and yet, in those cases, the holder expressly reserved his right, and retained the (a) 2 Bos. & Pull. 61. (b) 8 East, 576. original original bills. At any rate, the defendant ought to be liable only to the amount of 210; for the successive renewals of the other notes must surely exonerate him as to those. Whatever reservation the plaintiff might at first have made, still it does not appear that he made any at the times when the notes first given were renewed. Campbell, in reply, was stopped by the Court. ABBOTT C. J. I think that the plaintiff is entitled to recover his whole demand from Deakin. In this case, all the defendants were jointly liable on the original bills; and therefore it is very different from the cases cited of different parties on a bill of exchange, where, by the form of the instrument, they are not all jointly liable, but have remedies over against each other. But it is urged, that in this case, the defendants entered into an agreement by deed, by which one of them, Bickley, undertook to discharge the bills in question; that this was communicated to the plaintiff, through Birch; and that the acceptance by him of the new securities from Bickley, under this agreement, discharged Deakin from his original liability. But how does the fact stand? On the circumstances being communicated to the plaintiff by Birch, he refused to assent at first to the agreement, saying that he already held very good securities, and that he did not wish to prejudice them; and when at last he agreed to take Bickley's notes, he did so, reserving strictly the security of the three partners. cannot, therefore, be reasonably said that the plaintiff ever agreed to take Bickley's notes as a satisfaction for his claim upon the original bills. But it is then argued. P4 It that 1818. BEDFORD against DEAKIN. 1818. BEDFORD against DEAKIN that the renewal of the two notes operated as a discharge pro tanto of Deakin, inasmuch as the plaintiff had no right to do that without Deakin's knowledge, it being a detriment to him, by preventing him from having recourse to his remedy against Bickley on the agreement. Whether this was done without the actual knowledge of Deakin I cannot say, the case being silent on the point. But undoubtedly he had legal knowledge of it; for he knew that the original bills had not been delivered up by the plaintiff, and that till that happened he remained liable upon them. It was therefore his duty to have made the necessary inquiries. The utmost that the plaintiff has done, in this case, has been to consent to further the agreement between the partners by endeavouring, if possible, to get payment of the original bills from Bickley. He has endeavoured to do this, and has failed; and he has therefore a right now to resort to his claim against Deakin, who was originally liable. BAYLEY J. In this case, all the three partners originally were jointly liable to this debt; and no arrangement between themselves can vary the right of the creditor. That right, however, may be destroyed by the creditor consenting to accept of the separate security of one partner in discharge of the joint debt, and that is the foundation of the decision in the two cases cited from Espinasse's Reports; but there is no such consent here. The three notes which the plaintiff took from Bickley (two of which have been successively renewed, but one not), cannot amount to a satisfaction of the joint debt; unless, first, they were, when taken by the plaintiff, intended by him as a satisfaction for it; or unless, secondly, the con conduct of the plaintiff has, without the fault of Deakin, produced mischief to him. As to the first point, it is quite sufficient to say that the plaintiff expressly reserved his claim against all three upon the joint debt. And as to the second, if Deakin was, by the successive renewals of the bills, lulled into security, it was his own fault; for, being a joint debtor with Bickley, it was his duty, for his own security, to see that the debt was paid. And the test of that was easy; for, if Bickley had paid the debt, he must have had the original bills to produce; and Deakin, therefore, if Bickley did not produce them, ought to have concluded that the debt had not been paid. The plaintiff, therefore, is entitled to recover. HOLROYD J. I am of the same opinion. The dishonour of the original bills gave a right of action against all the three partners: and the circumstance of a creditor giving time to one of three joint debtors, will not discharge the others; nor even, strictly speaking, suspend his right of action against them. I think that the giving of the three notes by Bickley will not operate as a satisfaction of the joint debt: for, in the first place, it is not a satisfaction of a higher nature; and, in the second place, there was an express reservation of the plaintiff's claim against all the three. And the agreement between the three partners cannot vary the plaintiff's right, even though it was communicated to him. I think, therefore, that the plaintiff is entitled to recover the whole amount of his claim against Deakin. Judgment for the plaintiff. 1818.. BEDFORD against DEAKIN. 1818. Wednesday, ties named two WELLS against CookE. Where the par- PARKE moved to set aside the award in this case on the ground that the umpire was improperly ap arbitrators, who were to choose an umpire, and pointed. It appeared that the submission was to two each arbitrator named a person persons, and if they disagreed, to an umpire to be chosen by them: the arbitrator selected by the plaintiff to whom the other objected; and they afterwards agreed to decide by lot which should name the umpire, and thereupon the party who won, named the person to whom the other had previously objected: Held that the award made by such umpire was bad. nominated to whom the arbitrator on the a person part of the defendant objected, and after several proposals made on each side, the arbitrators not agreeing, it was determined by them that they should draw lots which arbitrator should have the nomination, and the lot faling on the plaintiff's arbitrator, he nominated the person who had been objected to, who made his umpirage in due time. Both the arbitrators and the parties at- cation he cited Harris v. Scarlett shewed cause, and relied on the subsequent conduct of the parties in attending the umpire. But as it did not appear by the affidavits that the defendant or his attorney had any knowledge of the mode in which the umpire had been appointed, the Court made the Rule absolute. |