the words of acts of parliament, but that does not render the magistrate liable. The rule must be discharged.'

BURROUGH, J. If the magistrate has jurisdiction, as he had here, he never can be liable in an action of trespass, nor in any form of action for a mere mistake in a matter of law; and whether an occupier could commit a felony under the statute on his own premises, was clearly a matter of law. The depositions ought not to have been taken in the terms of the act of parliament. That is not the language of witnesses. But even if the magistrate were answerable for the misconduct of his clerk, trespass is not the form of action. I agree in the rule being discharged.

GASELEE, J. I am sorry to agree in the opinion that the action cannot be maintained but the law is so. The language of the statute under which the plaintiff was committed, is general, and contains no exception of malicious injuries done by occupiers against their lessors. But independently of that, the defendant acted on his general authority; and if there were a probability of a felony having been committed, he was bound to proceed as in other cases. Suppose a committal on suspicion of murder, and it turns out not to be murder, shall the magistrate be liable? In Crepps v. Durden the *magistrate had power *94] not merely to inquire but to convict, and having convicted his jurisdiction ceased. Here the defendant had jurisdiction, and the rule must be

Discharged.

GORING v. EDMONDS the Elder. June 23.

In April 1825, defendant guarantied the payment of money due from his son to the plaintiff upon a sale of timber. The plaintiff received part payment of the son, and made repeated unsuccessful applications to him for the residue till December 1827, when the son became bankrupt. The plaintiff never disclosed to the defendant the issue of these applications, but in December 1827 sued him on his guarantee: Held, that the defendant was not discharged by the time that had elapsed, nor by want of notice of the applications made to his son.

ASSUMPSIT on the guarantee at the foot of the following agreement, which had been entered into by the defendant's son.

"Agreement between Charles Goring, Esquire, and Thomas Edmonds, jun. I, Thomas Edmonds, at Steyning, agree to purchase so many oak trees as are marked, and shall be marked by us at Olbourne and East Grinstead, at the price of 107. per load, girth measure of fifty feet by the load. But should Mr. Mark

wich, when he measures the same, consider the sum of 107. per load not a sufficient price, he is to fix such price as he considers it to be worth. And I hereby agree to pay the price he shall fix upon, though it shall exceed 107. per load. And, further, I agree not to remove the timber or bark without the consent in writing of Charles Goring, Esq., from off the said estates where the said timber shall be cut; and whatever securities I may give to Charles Goring, Esq., to induce him to consent to the timber and bark being taken away, shall be taken up and discharged, half at Michaelmas, and the other half at Christmas next at farthest. "THOMAS EDMONDS." *"In the event of my son Thomas Edmonds, jun., not paying Charles

*95] Goring, Esq., I hold myself liable, and hereby engage to fulfil the said payments according to the above conditions.

"April 20, 1825."

"THOMAS EDMONDS.

At the trial before Tindal, C. J., Middlesex sittings after Easter term, it appeared, that the defendant and his son having signed the foregoing instrument in April 1825, the timber was all removed by Edmonds the younger, without any further security being required. On the 19th December, 1825, two bills for 2007. each, drawn by Edmonds the younger on one Alexander, and accepted by him, were paid into the plaintiff's bankers. These bills were duly honoured in March 1826. There remained then due to the plaintiff in respect of the timber 4861. 16s. From that time to the close of 1827, repeated applications were

made in vain to Edmonds the younger for payment. On the 1st of October, 1827, Edmonds the younger gave the plaintiff a bill for 2007. drawn by him on one Williams, which became due, and was dishonoured early in December 1827. The plaintiff, however, never returned it, nor gave any notice of dishonour. About that time Edmonds the younger became bankrupt, and the plaintiff, through his attorney, applied for the first time to the defendant upon his guar antee, for payment of the 4867. 16s. The defendant admitted his liability, but was not aware of the bill accepted by Williams.

On the part of the defendant it was contended, at the trial, that his liability was discharged by the plaintiff having taken bills from the son, and by his not having earlier communicated to the defendant the state of the account. Payne v. Ives, 3 D. & R. 664, was relied on.

*For the plaintiff it was insisted, that as there was a fixed day for payment, there had been no unreasonable delay in applying to the defendant. [*96 The Chief Justice told the jury, that in order to discharge the defendant, time must have been given, under such circumstances, that the plaintiff must have lost his remedy against the original debtor; and he observed on the admission of liability made by the defendant himself.

A verdict having been found for the plaintiff, damages 4867. 16s.,

Russell, Serjt., moved to set it aside, on the ground of a misdirection, or to reduce the damages by 2007.

The defendant was discharged by the plaintiff's dealings with the principal debtor. In Peel v. Tatlock, I B. & P. 419, it was considered by the Court, that delay in calling upon a guarantee does not exonerate him, unless it can be shown or presumed that he is a loser thereby. But here the defendant might well be presumed to be a loser. Two years, during which the principal creditor was in good credit, the guarantee was never called on. He was applied to only when the failure of his principal deprived him of any chance of being reimbursed.

In Payne v. Ives and Others, 3 D. & R. 664, the defendants gave the following guarantee:-"We undertake to endorse any bill or bills Mr. John Stubbs may give to Messrs. Payne & Co. in part payment of an order for lace which is now being executed for him. Messrs. Payne & Co. to allow 5 per cent. on the amount of the said bills for the said guarantee." Stubbs paid the plaintiffs part of the amount in money, viz. 5007., and gave them a bill for the remainder, viz. 3377. at eighteen months, and the plaintiffs kept the bill for seventeen months and *ten days; and then, finding that Stubbs was insolvent, applied for the first time to the defendants Ives & Co. for their endorsement. And [*97 it was held, that the plaintiffs were concluded by their laches, and that the defendants were not liable on their guarantee. Abbott, C. J., said, "The general rule of law upon such subjects is clear, namely, that the demand must be made within a reasonable and convenient time. But for the plaintiffs to forbear their demand for seventeen months out of eighteen, was neither reasonable nor con. venient. Besides, here the plaintiffs lie by till they learn that Stubbs is insolvent, and until they discover that the endorsement is the only means by which they can secure their debt; and, but for that discovery, they probably never would have applied at all. That, I think, they were not entitled to do under the agreement, and consequently, they ought not to have recovered in this action." And Bayley, J., said, "The option given to the plaintiffs ought to have been made in a reasonable time, and, at any rate, before that event occurred, of which, if the defendants had known, they never would have given the guarantee." Holroyd, J., said, "The plaintiffs did not exercise their option till within a few days of the bill becoming due, and till they knew of the insolvency of the acceptor. I think they were not justified in such delay, and that is the only question in the cause. With respect to bonds, it is laid down by Lord Chief Baron Comyns, that where a condition is to do a transitory thing without limiting the time, it ought to be done immediately, that is, in a convenient time."

As to the 2007. bill, by keeping it and giving no notice, it is quite clear that

the plaintiff made it his own. The death, bankruptcy, or known insolvency (a) *98] of the drawer, or his being in prison, (b) constitute no *excuses either at law or in equity for the neglect to give due notice of non-acceptance or non-payment; and the reason is, that many means may remain of obtaining payment by the aid of friends or otherwise, of which it is reasonable that the drawer and endorsers should have the opportunity of availing themselves; and it is not competent to the holders to show that the delay in giving notice has not in fact been prejudical: Esdaile v. Sowerby, 11 East, 114.

Besides, the taking the bill was a discharge; at least pro tanto; as giving time for an hour discharges the surety. Defendant's acknowledgment could not affect his rights, when made in ignorance of the circumstances. In the case of a bill of exchange, a promise to pay, by an endorser or other party, if made without a knowledge of the laches of the holder in respect of such bill, will not be binding. Blesard v. Hirst and another, Burr. 2670, Goodall and Others v.. Dolley, 1 T. R. 712.

In this last case a bill drawn in favour of defendant, payable 11th January, 1787, was presented for acceptance by the plaintiffs on the 8th November, 1786, when acceptance was refused; they gave no notice to the defendant till the 6th January, 1787, and then they did not say when the bill was presented. The defendant proposed paying by instalments, which offer was rejected by the plaintiffs, and they brought the action. Heath, J., ruled that the defendant was discharged for want of notice, and that his offer to pay being made in ignorance of the circumstances, was not binding: the jury found a verdict for the defendant, and upon cause shown against a rule for a new trial, the Court held the direction and the verdict right.

TINDAL, C. J. This is not a case for a new trial. There are two points on which it is suggested the jury have been misdirected. The first, that mere laches in the party secured will operate as a discharge to the surety: *99] but no case goes to that extent, and there are many which establish the reverse. I am far from saying, there may not be an extreme case of laches amounting to fraud, and fraud would be a defence to the action; but not mere negligence. In Trent Navigation Company v. Harley, 10 East, 34, the obligees in a bond conditioned for the principal obligor to account for and pay over tolls, did not examine his accounts for eight or nine years, and did not call for payment so soon as they might have done; but they obtained a verdict in their favour; and on a motion for a new trial, Lord Ellenborough said, "The only question is, Whether the laches of the obligees in not calling on the principal so soon as they might have done, be an estoppel at law against the sureties? I know of no such estoppel at law, whatever remedy there may be in equity." The case of Payne v. Ives was on an executory promise to endorse in future any bills Stubbs might give in payment for lace, and no application was made to the defendants till nearly eighteen months after the bill was given. That might so alter the state of things as to be too late in an executory contract. But that will not govern the case of a guarantee. The second objection is, that the mere giving of time on the bill would discharge the defendant: but in English v. Darley, 2 B. & P. 61, it was held, that merely giving time, without an engagement to suspend the usual remedies, will not discharge the surety. The point here was left to the jury upon the material question, whether time had been given under such circumstances; and it appeared to me that they found correctly.

PARK, J. I concur with my Lord Chief Justice. In the London Assurance Company v. Buckle, 4 B. Moore, 153, which was *an action of debt on *100] a bond for 20007. duly executed by an insurance broker as the principal obligor, and two sureties with a certain condition, it was held, that the sureties were not discharged by the laches of the obligees in suffering the credit of the broker to run on so long beyond the six months stipulated by the bond. I fully (a) Russel v. Langstaffe, Dougl. 514. Esdaile v. Sowerby, 11 East, 114. (b) By Lord Alvanley, C. J., Haynes v. Birks, 3 Bos. & Pul. 601.

concur in the doctrine there laid down, and that case is stronger than the present.

BURROUGH, J. The direction to the jury cannot be impeached. GASELEE, J. I think a surety has a duty upon him to go and inquire as to the state of the transaction. In Orme v. Young, 1 Holt, 84, there was delay in giving notice, and yet the surety was holden not to be discharged.

Rule refused.

HENLEY v. The Mayor and Corporation of LYME REGIS. June 27. Where a verdict was taken by consent on two counts, the Court, on the application of the plaintiff, amended the postea, by entering the verdict on one (to which the evidence applied), although the Judge who presided at the trial declined to interfere.

THE declaration in this cause contained five counts. Two charging the defendants with the repair of sea walls, by virtue of a charter from the crown. Two by prescription; and one by virtue of possession.

At the trial before Littledale, J., Dorchester Summer assizes 1828, after the evidence on the part of the plaintiff had been heard, the learned Judge expressed *an opinion that he must fail on the three last counts, and it was then

agreed by the counsel on both sides to enter a verdict on the two first [*101 counts, which charged the defendants under their charter. The jury were discharged as to the other counts.

The first of these two counts (see them, 5 Bing. 91), set out the charter fully, alleged the possession of the defendants under it, and the liability to repair as consequent on possession under the charter.

The second set out less of the charter, omitted any allegation of possession, and laid the liability as consequent on the charter.

The defendants moved in arrest of judgment, and the decision of the Court having been in favour of the plaintiff on the first two counts, an application was made to Littledale, J., to permit the verdict to be entered on the first count only. The learned Judge declined to interfere, on the ground that the verdict had been entered on the first two counts by consent, but he transmitted to this Court his notes of the trial.

Wilde, Serjt., moved for a rule to show cause why the verdict should not be entered upon the first count alone.

He contended, that such entries were always made by the authority of the Court, although it was usual to apply to the Judge who presided at the trial for his concurrence, as he was the best acquainted with the evidence in the cause; but the rule was, that where the same cause of action was declared on in various counts, the verdict might be entered on any of them to which the evidence applied; and it was manifest here, that no evidence could have been given under the second count which did not equally apply to the first. The agreement at the trial was not restrictive of the right to enter the verdict on a single count, but restrictive only of the *number of counts on which the plaintiff should have that privilege. The object of that agreement was to confine [*102 the argument on the contested question of law to some count which was borne out by the evidence; not to pin the plaintiff to all the counts on which he might have offered evidence, for the purpose of entrapping him in some technical informality.

The following authorities were cited, to show that the authority to apply the verdict to a particular count was in the Court, and not in the Judge who hap pened to preside at the trial. Eliot v. Skypp, Cro. Car. 338; Hankey v. Smith, Barnes, 449; Newcomb v. Green, 2 Str. 1197, 1 Wils. 33; Spencer v. Goter, 1 H. Bl. 78; Petrie v. Hannay, 3 T. R. 659; Williams v. Breedon, 1 B. & P 329.

Taddy and Merewether, Serjts., who showed cause, did not deny the rule to be

as stated, or the authority of the cases cited, but asserted that there was no case in which the entry had been made without the concurrence of the Judge who presided at the trial; and that in none of the cases cited had there been any agreement by the parties to take the verdict on particular counts. That agreement was conclusive between them, and the Court had no authority to interfere. In Richardson v. Mellish, 3 Bingh. 334, the Court would not act without the concurrence of the Judge who had tried the cause, and required a certificate from him, although he had quitted the Court.

Where the case arises on a contract, the cause of action may often be single; but where it arises on a tort, if there be any evidence which applies to an insufficient count, the postea cannot be amended: Eddowes v. Hopkins, Dougl. 376. *Wilde. The cause of action on these two counts is clearly the same, *103] namely, the defendant's liability under the charter. The case, therefore,

does not admit of comparison with ordinary actions on a tort. The plaintiff is not only entitled to confine his verdict to a single count where the evidence admits of it, but he may be compelled to do so: Lee v. Muggridge, 5 Taunt. 36. The court being called into the Exchequer Chamber, the case stood over till this day, when

TINDAL, C. J., said, The plaintiff in this cause has made an application to enter the verdict on the first count of the declaration only, although, by consent, the verdict was taken on the two charter counts. Looking at the agreement between the parties, we think we shall carry it into effect by allowing the plaintiff to enter his verdict on the first count. If, indeed, damages could have been given on the second count which could not have been given on the first, we should not do what is requested, without the concurrence of the Judge who tried the cause but looking at the two counts, we perceive that the cause of action in both is the same; the charters set out are the same; and the damages given must have been on the same account. The two counts are only different modes of stating the same cause of action. We give effect, therefore, to the agreement, by allowing the plaintiff to enter up his verdict on that count which he thinks states his cause of action the best. If we were to refuse the application, and a venire de novo were to be awarded upon a writ of error, we should only occasion unnecessary expense. Rule absolute.

*101]

*PHILPOTT v. DOBBINSON. June 29.

Avowry for rent due from plaintiff, as tenant of premises to avowant, under a demise before then made, at the yearly rent of 1701.:

Held, not supported by a proof of a conveyance to avo want, to which three trustees, the lessors, were parties, but which was executed by only two of them.

REPLEVIN for goods. The defendant made cognisance, as bailiff of William George Tate, because the plaintiff, for three-quarters of a year next before the 24th of June, 1828, and from thence until and at the time when, &c., enjoyed the dwelling-house, in which, &c., as tenant thereof to the said Wm. Geo. Tate, by virtue of a demise thereof to him, the plaintiff, before then made, at the yearly rent of 1707., payable quarterly, and 1277. 10s. was due for threequarters.

The plaintiff pleaded non tenuit modo et formâ, and riens en arriere. At the trial before Tindal, C. J., Middlesex sittings after Easter term, it appeared that Wm. Geo. Tate claimed the rent as heir of Wm. Tate: and

That the plaintiff had come into possession under a lease granted by Joseph Bradney. Joseph Bradney devised the property to three trustees in trust to sell. After Bradney's death, the three trustees were parties to deeds of lease and release, bearing date the 30th and 31st of December, 1824, by which the property was conveyed to Wm. Tate; but these deeds were executed by two only of the three trustees.