the replevin bond is to stand as a security, and that the sureties, the principal being insolvent, are bound to pay the whole sum awarded. The surety says, non hæc in fœdera veni. I only undertook that the tenant should prosecute his suit with effect, and without delay; and that return should be made of the goods seized, if a return should be adjudged. It has been urged that the condition of the sureties was not altered by the acceding to an arbitration. But the sureties have a right to require the tenant to prosecute his suit with effect and without delay; and the landlord here by his agreement with the tenant, and staying his proceedings, has restrained the sureties from compelling him so to proceed. Having considered the case of Bowmaker v. Moore, in the Exchequer (post, pages 600, 601), and the reasons therein contained, the Court thinks them more agreeable to the condition of a replevin bond than the decisions of Moore v. Bowmaker at law, (see below, and ante, page 593), and more consonant to the provisions of the act of George 2, and to the general rules respecting principals and sureties, perhaps originally considered in Courts of equity, but now adopted and acted upon in Courts of law. The Court therefore thinks that this rule, as far as it affects the sureties, should be discharged; and, though not of much use, it may be absolute against the tenant, who is stated to be insolvent.

In Aldridge v. Harper, 10 Bingham, 118; S. C. 3 Moore & Scott, 518 (see before, page 594), the above case of Archer v. Hale being relied upon in argument, as a judgment of the Court of Common Pleas that the sureties should be discharged, where time was given to the principal without their consent, Chief Justice Tindal said, that the answer was an obvious one; that the application to the Court in Archer v. Hale was an application by motion; and that it appeared by the affidavits laid before the Court, that it would be against equity to allow the sureties to remain liable; and that in determining that the plea in Aldridge v. Harper could not be supported, the Court did not in the least. impeach the judgment given in Archer v. Hale.

The case of Moore v. Bowmaker, above mentioned, is reported 6 Taunton, 379, and 2 Marshall, 81. There is considerable confusion in both reports of the case. The material circumstances were these:-One Shirreff was tenant to Moore, and, the rent being in arrear, in January, 1814, Moore distrained, the goods were replevied, and Bowmaker was one of the sureties in the replevin bond, which was dated February, 1814. At this time there was a prior replevin suit depending between Shirreff

and Moore, and which stood ready for trial; and in March, 1814, Shirreff and Moore made an agreement, without Bowmaker's knowledge, to refer the matters in dispute between them to arbitration, Shirreff giving Moore a cognovit in the first replevin suit, authorizing him to enter up judgment of non pros. unless Shirreff should pay the rent, for which the distress in that first suit was levied, by the first day of Michaelmas Term. By the agreement the award was to be made on or before the 23d May, or such further time as might be required, not exceeding the 24th June; and there was a clause in the agreement, that nothing therein contained should be construed so as to prejudice the second distress made in January, 1814, or to discharge the sureties of Shirreff in the replevying of the second distress: and it was agreed that, pending the reference, no proceedings should be taken in the second action of replevin brought in consequence of such distress. At the date of this agreement of March, 1814, very little had been done in the second action of replevin. The award was made on the 7th July, the time for making it having been enlarged to the 10th of that month. Then, on the 20th August, Sherriff confessed the second action of replevin, but judgment was not to be entered up until the first day of Michaelmas term. Subsequently judgment was entered up both in the first and second replevin suits. In the first suit, Shirreff's goods were taken in execution: but in the second the sheriff, in answer to a retorno habendo, returned elongata, and the usual assignment of the replevin bond having been made, Moore brought his action upon it against Bowmaker in the Court of Common Pleas, and issued a capias in June, 1815, returnable in three weeks. Upon these facts a rule nisi had been obtained by Bowmaker to set aside the proceedings in this action, upon the ground that the agreement of reference discharged Bowmaker and the other surety in the bond, as if Moore had proceeded with diligence in the second replevin suit, Bowmaker might have had an opportunity of indemnifying himself; but upon cause being shown the rule was discharged, Chief Justice Gibbs observing, that the sureties in a replevin bond cannot interpose in the suit and take the goods and restore them to the avowant, as bail to the action whilst the suit is running may surrender their principal; and that therefore Bowmaker had not been prevented from taking any precaution that he might have taken; and although the learned judge noticed the circumstance that the sureties bind themselves that the replevin suit shall be prosecuted with effect, he passed over without remark the stipulation in the

agreement of March, 1814, suspending proceedings in the second replevin suit.

Bowmaker having thus failed in his motion to the Court of Common Pleas to set aside the proceedings in the action against him upon the replevin bond, had recourse to a Court of equity, and filed his bill in the Exchequer. The case in equity is reported in two stages. An application was in the first instance made for an injunction upon the facts admitted by the answer, when the injunction was granted: the Court observing, that the replevin bond was of course conditioned, that the principal (the tenant) should prosecute his writ with effect against the landlord that by the agreement the tenant was precluded from proceeding according to the condition: he was restrained by the act of the landlord from doing that which his surety had engaged he should do. Bowmaker v. Moore, 3 Price, 214, 218.

The cause proceeded and came on to be heard before Chief Baron Richards. In giving judgment that a perpetual injunction should be awarded, the Chief Baron said, that there had been already two decisions on the case in different Courts, and that certainly the judgment of the Court of Common Pleas was quite at variance with that of the Court of Exchequer: that the question was really therefore in effect, whether, under the circumstances, the Court of Common Pleas had determined rightly in deciding, that at the time when the action was brought in that Court, the assignee of the replevin bond had a right so to proceed against the surety; that it certainly appeared that the circumstance of the surety being, in consequence of what had taken place between the landlord and the tenant without his the surety's privity, placed in a different situation from that in which he would have been if the arrangement made between the litigating parties had not taken place, and that such arrangements might have operated to Bowmaker's disadvantage;-it appeared that that circumstance had not been thought by the Court of Common Pleas an objection to the action: that the Court of Common Pleas seemed to have considered that the rule could not operate in that case as in that of bail; because the sureties in a replevin could not, like bail, at all times interpose in the suit: and because the sureties had not in that case been, in point of fact, prejudiced by the delay: that the real and only question in the case was, whether the surety was, in point of fact, placed in a different situation by what had taken place on the arrangement between the principal and the obligee; and whether by such change of situation he might have been prejudiced; not whether he did

in fact actually sustain any injury in consequence: that a creditor taking a surety is bound to notice the nature of his engagement and to protect him: that the surety is entitled to every advantage which the principal would have had under any circumstances that there was a stipulation in the agreement of March, that nothing in it should prejudice the distress of January: but if it might have such an effect, that alone would be sufficient in equity to discharge the surety; and that by the last clause of the agreement, no proceedings were to be taken in the action of replevin upon the distress: that one object of the bond was the due prosecution of the proceedings, and they were stayed by the act of Moore: that when Bowmaker entered into the bond, it was probably on the faith of the implied contract, that the proceedings should not be delayed, and he might have calculated on his principal continuing solvent for a given time, during which there would be no risk: that if so, a procrastination might have been extremely injurious to his interests, and that was a very probable consequence of Moore's agreement with Shirreff. Yet Moore stipulated for a delay which might indeed benefit Shirreff, but not his surety, whose benefit Moore was also obliged to regard, and he might say, non hæc in fœdera veni: that the Court was not at liberty in such a case to inquire whether any inconvenience did actually arise to Bowmaker, in consequence of the agreement between Moore and Shirreff; for if Bowmaker was discharged by any thing which took place between Moore and Shirreff, he was discharged at the time when the agreement was entered into between them: that the plaintiff in the replevin suit could not have moved till the 24th June, by the terms of the agreement. At that time even, however, he might perhaps have proceeded to trial at the ensuing summer assizes; and if he had so proceeded the Court might have felt more difficulty in the case; but the time for making the award was afterwards enlarged till the 10th July, when the term was over, and no trial could be had till the next spring. There was, therefore, in fact, a difference made in the situation of the surety by the delay occasioned by the arrangement between the principal and the obligee; and whenever that was the case, and the surety might possibly be prejudiced by such delay and change of situation, it was the opinion of the Court, whether right or wrong, that it affected the conscience of the obligee, and operated to discharge the surety: the Lord Chief Baron added, that after the two decisions at law in favour of the obligee, costs could not be given. Bowmaker v. Moore, 7 Price, 223; S. C. Daniell, 264.

Case of Hallett

In Archer v. Hale, the late Mr. Justice Park said of the above case of Moore v. Bowmaker, that when it first came before the Court on a motion, (see ante, page 598), the Court held, (Lord Chief Justice Gibbs then presiding), that the sureties in a replevin bond were not discharged by time being given to the plaintiff in replevin by a reference: that that case was so decided in 1815, before any of the existing judges sat in the Court: that the same case afterwards came on again before the Court upon a demurrer to a plea of the defendant (see ante, page 593), Mr. Justice Burrough and himself being judges; but the case having been so recently decided by four most eminent persons, and no case having been quoted to the contrary, the judgment was the same way, upon the principle that the sureties, in order to show that they ought to be relieved, must convince the Court that their situation was in fact altered. 1 Moore & Payne, 291; 4 Bingham, 466.

The learned judge was obviously not aware that the decision upon the demurrer to the plea was quite right.

Where the equitable circumstances may be used in defence to the action in the usual way, the Courts of common law do not seem disposed to interfere in a summary way and stop proceedings. In Dale v. Gordon, 2 Moore & Scott, 532, an action had been brought against the sheriff for taking insufficient pledges in a replevin bond, and a motion was made on his behalf to stay proceedings, upon affidavits, stating that the landlord and tenants in the replevin suit, had without the knowledge of the sheriff or the sureties in the replevin bond, referred the replevin cause to an arbitrator. On the part of the landlord it was objected that the Court ought not to interfere on motion and affidavits, as if the sheriff had good defence he might avail himself of it at the trial. The Court on this ground declined to accede to the application.

In an action like this last it should seem that a Court of common law might, if it thought it expedient, interfere in the way proposed, by virtue of the jurisdiction mentioned, ante, page 594.

One case remains to be noticed under this head. Hallett v. v.Mountstephen. Mountstephen, 2 Dowling & Ryland, 343. In a replevin suit the landlord and tenant entered into an agreement to stay all proceedings upon payment by the tenant of 250l., the replevin bond