power of dedicating to the public this particular piece of road, which he can open during her lifetime without her consent? She has no control given her over it, and she has no power of opposing a step of that kind. Therefore, it may be done to-morrow by him, if he thinks fit, and the road may be continued open during the whole of his lifetime; and it being of scrious importance to the ultimate value of the reversion, the question is, whether that should not be done, and whether I should be invading on that which is provided by the will. In doing that, I am not injuring the widow as to any privileges she has. I cannot prevent the neighbours building, and turning the backs of these houses, instead of the fronts, towards her residence. All I am now asked to do is, is to allow this particular portion of the road to be made. As to the other parts of the case, the petitioner has marked out on the plan three or four other roads: and as regards those, I think the observation would apply, that the Court ought to have a reason for making roads. So far I go with the argument, that the Legislature did not intend the Court should authorise an estate to be cut up with roads for a prospective object, when no immediate benefit was to be derived. I find an immediate benefit is to be derived from making the road from the houses which the testator built, but I do not find any immediate benefit would be derived from the other roads. They can only come into use whenever these persons may be minded, on the death of this lady, to build, or when they may have an opportunity of doing so by this lady changing her mind. Until that time, it is not proper that the roads should be made. I think, therefore, the best thing to do is, to dispose of this petition once for all, by dismissing it, with costs. floating bills, to be settled for and paid up monthly; there was no recital of P. being then indebted to the plaintiffs, and the present guarantee was expressed to be in addition, and supplemental to the former guarantee. To an action against the defendant for his proportion, the defendant pleaded fraudulent concealment of material facts:-Held (affirming the decision of the Court of Common Pleas), Per Crompton, Blackburn, and Shee, JJ., and Channell, B.-That the suppression by the plaintiffs of P's indebtedness to them at the time of the agreement entered into, was evidence of fraud to go to a jury. Per Pollock, C. B., and Bramwell, B.-That there was no evidence of fraud whatever. This was an appeal from a judgment of the Court of Common Pleas, discharging a rule to set aside a verdict found for the defendant, and instead thereof to enter a verdict for the plaintiffs. The declaration stated, that by a certain agreement, after reciting that James Packer had for some time then past been a salesman of coals, upon commission, for the plaintiffs, he, the said James Packer, giving bills of exchange to the plaintiffs for all such coals as might be delivered to his order, such bills being floating bills, to be settled for and paid up at the expiration of the current months during which such bills were respectively running; and after reciting that the plaintiffs requiring security from the said James Packer, they stipulated, among other things, that N. C. Sendall, G. Theobald, J. G. Antrobus, the defendant, and H. W. Ruel, should give them, the plaintiffs, a floating and continuing guarantee, for the term of three years from the date of the said agreement, on behalf of the said James Packer, to secure them, the said plaintiffs, the amount of any balance which might The following was the form of the order: This at any time or times be due to them, the plaintiffs, Court being of opinion, &c., doth order that the peti- from the said James Packer, upon any such coal actioner be at liberty to lay out, at his own expense, a count or bills to the amount of 3007., in the approroad on such part of the estate marked A to B in the priations following:-The defendant in the sum of map or plan, either to be dedicated to the public or 1007., and each of the other sureties in the sum of 501. not: and that the rest of the petition do stand dis--making together the said sum of 3007. And in order to missed, with costs, to be taxed &c., and paid by the induce the plaintiffs to continue the said arrangements petitioner; and that so much of the costs of the re- with the said James Packer, the said N. C. S., G. T., spondents as is not directed to be paid by the peti- J. G. A., the defendant, and H. W. R. agreed to enter tioner, and the costs of so much of the petition as is into the said agreement for guarantee, in manner not dismissed, be a charge on the estate, with liberty thereinafter appearing, they, the said N. C. S., G. T., to any of the parties to apply in chambers as to the J. G. A., the defendant, and H. W. R., in consideraraising and paying of such costs. tion that the plaintiffs would continue, for more than one month then next, to allow the said James Packer a certain commission upon the sale of coals referred to in an agreement between the said James Packer and the plaintiffs, bearing date the 1st November, 1856, and would not for the said month terminate and put an end to the agreement, severally and respectively guaranteed, promised, and agreed to and with the plaintiffs, that they, the said N. C. S., G. T., J. G. A., the defendant, and H. W. R. should and would severally pay and make good, in the respective portions herein before mentioned, to the plaintiffs or their executors, &c., all such sum and sums of money as might be due and owing to them, the plaintiffs, at any time or times during the said term of three years, from the said James Packer in relation to the said agreement or bills of exchange, not exceeding in the whole the said sum of 3007.; such guarantee to be a continuing guarantee, and to be made good at any time by the said N. C. S., G. T., J. G. A., the defendant, and H. W. R., for any balance or amount due to the plaintiffs in respect of the said agreement between the said J. Packer and the plaintiffs during the said term of three years. And by the said agreement it was declared by the said N. C. S., G. T., J. G. A., the defendant, and H. W. R., that giving time to the said James Packer by the plain Note for reference-Morg. Ch. Acts, 251-257. EXCHEQUER CHAMBER. MICHAELMAS VACATION. [Appeal from the Court of Common Pleas.] [Before POLLOCK, C. B., CROMPTON, BLACKBURN, and SHEE, JJ., and BRAMWELL and CHANNELL, BB.] LEE and Others v. JONES.-June 18 and Nov. 30. Guarantee―Suppression of material fact in the knowledge of the creditors-Obligation to disclose-Liability of surety. Prio sold goods on commission for the plaintiffs, being in arrear in his payments to the extent of 13007., was required by the plaintiffs to give them, in addition to an existing guarantee of 3001. from his mother, further secarity. P. then procured the defendant and others to give a guarantee for three years for the sums set opposite their respective names, in all 3001. The agreement recited that P. had for some time past been a salesman for the plaintiffs, he, the said P., giving bills to them for all such coals as were delivered to his order, the bills being tiff, for the payment of any account or balance at any time should not invalidate the said guarantee, but that they should at all times have it in their full power and discretion so to do, or to make any compromise or arrangement that they might deem beneficial with the said James Packer; and that they, the said N. C. S., G. T., J. G. A., the defendant, and H. W. R., their executors, &c., should remain liable to make good any balance or sum remaining due from the said James Packer to the said plaintiffs, notwithstanding such time so given, or such compromise or arrangement as aforesaid; and further, that as between them, the said N. C. S., G. T., G. J. A., the defendant, and H. W. R., and the plaintiffs, any account stated between them and the said James Packer, or the account-books of the latter used by them in their regular course of business, should be taken as conclusive evidence against the said N. C. S., G. T., J. G. A., the defendant, and H. W. R., their executors, &c., either at law or in equity, of the amount of balance or balances due to them on the said agreement by the said James Packer. And it was by the said agreement further agreed and declared, by and between the said parties thereto, that the said agreement was to be taken and considered as supplemental, and in addition to an agreement bearing date the 1st November, 1856, made between Sarah Tinson of the one part, and the plaintiffs and their late partner of the other part. Averment, that the plaintiffs, confiding in the said promise and agreement of the defendant, for more than one calendar month after the making of the said agreement, did continue and agree to allow to the said James Packer the said commission upon the sale of the said coals referred to in the said agreement between the said James Packer and the plaintiffs, and did not, during or in the said month, terminate or put an end to the last-mentioned agreement, as they might have done; and that afterwards, and within the said term of three years, there became due, and payable, and owing, in relation to and in respect of the said agreement, from the said James Packer to the plaintiffs, a large sum of money, such sum being due and payable as aforesaid by the said James Packer in respect of the said coal account; that the defendant's said proportion of the said sum of money amounted to a large sum of money; that before and at the time of the making of the said promise by the defendant, and from thence and during all the time aforesaid, the plaintiffs had the power to terminate and put an end to the said agreement between them, the plaintiffs, and the said James Packer by the said plaintiffs, giving one month's notice to the said James Packer of their, the plaintiffs, desire to terminate and put an end to the same; that before the commencement of this suit, all things had happened and occurred, and all times had elapsed, which it was necessary should occur, happen, and elapse, to entitle the plaintiff to sue in this action for the defendant's breach hereinafter mentioned of the said promise; and that the plaintiffs had always been ready and willing to do all things which it was necessary they should be ready and willing to do to entitle them to sue the defendant in this action for the said breach of promise; and nothing had happened or occurred to prevent the plaintiffs suing in this action for the said breach of promise; yet that the defendant broke his said promise, and had not paid or made good to the plaintiffs the said proportion of the said sum of money so due and owing as aforesaid from the said James Packer to the plaintiffs, which he, the defendant, agreed to pay and make good by his said promise, or any part thereof; whereby the said sum, and every part thereof, became wholly lost to the plaintiffs. The defendant pleaded-first, that he did not agree 4 as alleged; secondly, that the supposed agreement and promise was obtained from him by the plaintiffs, by the fraud of the plaintiffs, and by the fraudulent concealment of material facts, within their knowledge, respecting the said James Packer-material to be made known by them to the defendant before he entered into the said agreement. Issue thereon. The action was tried before Erle, C. J., in 1862, and was brought to recover the sum of 1007., the amount for which the defendant had become surety to the plaintiffs for one James Packer, a person who had been employed by them to sell coals on commission. It appeared that James Packer had been originally employed to sell coals for the plaintiffs, under an agreement bearing date November, 1856, under which he was to give his acceptances for the amount of all coals sold by him each month, and to account for, and pay over to, the plaintiffs or their agent, all the moneys received by him within six days of the receipt of the same. For the due performance of this agreement, one Sarah Tinson entered into a guarantee to the extent of 3007., terminable on one month's notice. In September, 1861, Packer was in arrear with his payments to the extent of 12727.; and the plaintiffs then required that he should give further security. Packer thereupon procured the persons named in the agreement, set out in the declaration, to give their guarantee, each for the amount set opposite to his name. In July, 1862, Packer was dismissed, and the sureties were called upon to pay; the fact of Packer being so largely indebted to the plaintiffs at the time of the giving of the guarantee having then for the first time come to their knowledge. The learned judge left it to the jury, to say whether there was fraud on the plaintiffs' part in keeping from the defendant the knowledge of Packer's liabilities to the plaintiffs at the time the guarantee was given. The verdict was found for the defendant. A rule was then obtained, calling upon the defendant to shew cause why the verdict should not be entered for the plaintiffs, on the ground that there was no evidence of fraud to go to the jury. The rule was subsequently discharged. The Solicitor-General, for the appellants.-In The North British Insurance Company v. Lloyd (10 Exch. 523) it was held, that the rule which prevails in insurances upon ships and lives, that all material circumstances known to the insured must be disclosed, though there be no fraud in the concealment, did not extend to the case of guarantees, and that in the latter case the concealment to vitiate the guarantee must be fraudulent. Pollock, C. B., in commenting on Railton v. Matthews (10 Cl. & Fin. 934), observes, that "the point thus decided was in effect, that it was not necessary, in order to render a concealment by a person fraudulent, that it should be made with a view to the advantage that person was thereby to receive. . . . But that the mere relationship of creditor and surety requires in all cases a she had become surety to the plaintiffs to the extent of 300l. for the due performance by Packer of his agreement. full disclosure of all material circumstances, was distinetly denied by the Lords, in the case of Hamilton v. Watson (12 Cl. & Fin. 109), relative to an advance by bankers; and particularly by Lord Campbell, who declares, that . . if such was the rule, it would be indispensably necessary for the bankers, to whom the security is to be given, to state how the account has been kept; whether the debtor was in the habit of overdrawing; whether he was punctual in his dealings; whether he performed his promises in an honourable manner; for all these things are extremely material for the surety to know. But unless ques-out it continue him in their employment, and stiputions be particularly put by the surety to gain this information, I hold that it is quite unnecessary for the creditor to whom the suretyship is to be given, to make any such disclosure." That is the contention in the present case; the surety was bound to ask for the information which he might think necessary, and there was no duty cast upon the plaintiffs to disclose the particular fact in question. Sir G. Honyman (O'Malley with him), for the respondent. There was evidence to go to the jury of the fraudulent concealment of a fact material for the plaintiffs to know. In Railton v. Matthews (10 Cl. & Fin. 934) it was held, that mere non-communication of circumstances affecting the situation of the parties material for the parties to be acquainted with, and within the knowledge of the persons obtaining a surety bond, was undue concealment, though not wilful or intentional, or with a view to any advantage of himself. In the same case Lord Campbell observes, "The liability of a surety must depend upon the situation in which he is placed, upon the knowledge which is communicated to him of the facts of the case, and not upon what was passing in the mind of the other party, or the motive of the other party." Lord Eldon, in the case of Smith v. The Bank of Scotland (1 Dow, 292), remarks, that "If a man found that his agent had betrayed his trust, that he owed hin a sum of money, and that it was likely that he was in his debt, if, under such circumstances, he required sureties for his fidelity, holding him out as a trustworthy person, knowing, or having ground to believe, that he was not so, then it was agreeable to the doctrine of equity, at least in England, that no one should be permitted to take advantage of such conduct, even with a view to security against future transactions of the agent." Cur, adv. vult. Nor. 30.-The Court being divided in opinion, their Lordships delivered judgment seriatim. SHEE, J.-The question for our decision is, whether, on the facts before us, as stated in the case, and in the agreements which are to be taken as parts of it, there was any evidence for the jury, in support of the defendant's plea, that the supposed agreement and premises were obtained from him by the fraud of the plaintiffs, and by their fraudulent and undue concealment of material facts within their knowledge respecting the said James Packer-material to be made known to the defendant before he entered into the said agreement. Packer not having for a very considerable time "carried out his agreement, by settling for and paying up his bills at the expiration of the months during which they were current," had become debtor to the plaintiffs in the sum of 13321., and Sarah Tinson, on her guarantee for him, had become their debtor to the extent of 3007., when the plaintiffs informed Packer that they wanted further security, and could not withlated with him, that the defendant and the other parties, sureties with him in the agreement sued upon, should, by their several and continuing guarantee, give the plaintiffs further security, to the extent of 3007., against the said James Packer. In pursuance of this stipulation, the plaintiffs caused the agreement sued upon to be prepared. Although, in legal construction, it extends to defaults already made, as well as to defaults which might be in the future made, it gives no intimation, in any part of it, of any intention that it should operate retroactively, or of any ascertained default on which it could so operate. It is silent on the fact of the breach by Packer of his agreement, that he would, for the coals delivered to his order, give from time to time his acceptances, and take them up at the expiration of the months during which they were current; on the fact, that by not having done so, he had incurred a debt to the plaintiffs of 13327., and involved Sarah Tinson in a liability for 3007.; on the fact, that the plaintiffs had informed him that he must give them further security, or relinquish their employment; on the fact, that the defendant, on his signature of the agreement, would not contingently only on future defaults, but at once, become liable for 1007.; and none of these facts, of which the defendant was entirely ignorant, were communicated to him by the plaintiff's. Nor was any opportunity for inquiring of them, or of those who represented them, afforded to the defendant. plaintiffs personally had no communication with him, and never saw him; it was left to Packer, whose employment and livelihood, as well as the liability of Sarah Tinson, were at stake, to obtain the consent of the defendant and of the other sureties in the best way he could, and as he thought proper; and the collector of the plaintiffs, who was sent round with the agreement to procure the signature of the defendant and of the other sureties, had no authority to answer questions. The It is clear, from the case of The North British Insurance Company v. Lloyd (10 Exch. 523), correcting the dictum of Lord Truro in Owen v. Homan (3 Mac. & G. 378), that the rule which prevails in insurances upon marine and life risks, that all material circumstances known to the insured must be disclosed by him, and that the non-disclosure of them, though innocent, and not fraudulent, vitiates the contract, does not apply to contracts of guarantee. But upon a discussion in which the question is, whether there was any evidence to be left to the jury to support a plea The facts are as follows:-Under an agreement of not of non-disclosure merely, but of fraud and frauduthe 1st November, 1856, James Packer had been for lent concealment of facts, material to be made known five years a commission agent of the plaintiffs for the to the defendant, this singularity of insurance law sale of coals, to be delivered by them to his order, on is surely little better than an intruder. What place the terms, that he should from time to time give to can it have in the argument, unless they who put it the plaintiffs his bills for the amount of the coals so forward are at liberty to assume the negative of the delivered, and pay to them, within six days of its re-plea? Whether there was any evidence of fraud, and ceipt, all money received by him from customers for such coals, to be taken off and credited upon the bills so to be given by him. And by an agreement of the same date, between the plaintiff's and Sarah Tinson, the mother of Packer, | frauduleut concealment, is the subject of inquiry; and there is no definition of guilt, as distinguished from innocent silence, or of bad faith and fraud in contracts, which the facts in this case do not exactly fit. Aliud simulatum, aliud actum (De Officiis, lib. 3, c. 14); the making one state of things appear to those with whom you deal to be the true state of things, while you are acting on the knowledge of a different state of things, among the oldest definitions of fraud on contracts, is here exemplified; for the agreement was prepared by the plaintiffs as a security to them against a defaulter, with whom, on account of his default, except on further security, they have declined to continue their arrangement, and the defaulter is held one by them as their commission agent, with a five years' character in their service, who had been guaranteeing, by his own bills during that time, the customers introduced by him, under the protection from all temptation to dishonesty, irregularity, or rash dealings of a prearranged system of short reckonings, settlements, and payments. Sarah Tinson, whom presumably he would be reluctant to imperil, is held out as a person who was willing, after five years' experience of the working of her son's commission agency, to continue liable to the same extent, and jointly with the defendant and the other proposed sureties, whereas her guarantee, to which theirs is described as "supplemental and additional," was exhausted; the first and immediate office of their guarantee being to make hers good, should she fail in doing so, they, should she discharge it, continuing liable to the extent of 3001. for the balance, and any future addition to it, remaining due by Packer to the plaintiffs. The only hint in the agreement sued upon, of the real state of things between the plaintiffs and Packer, is to be found in the recital, that, "in order to induce the said Lee & Jerdein to continue the said arrangement with the said James Packer, the said sureties had agreed" &c.; the effect of which recital was for the jury, and which, when read with the context, was more likely to lead the proposed sureties to the inference that the existing security had, by reason of the increase of Packer's transactions, on account of Lee & Jerdein, become inadequate, than that it was already forfeited. "Dolus malus," says the Digest, "non tantum in eo est qui fallendi causa obscure loquitur, sed etiam qui insidiose obscure dissimulat." (Dig. lib. 4, tit. 3, sect. 2, "De Dolo Malo"). The guilt of fraud," says the Digest, "is not in him who, for the purpose of deceiving, uses obscure language, but in him who insidiously, and without appearing to do so, dissembles what he thinks.” 4 tended to mean, that he was to be liable before his These definitions and maxims, though cited in all the books on the contract of insurance, are of much older date than any certain trace of that contract, and not more applicable to it than to the contract of guarantee. Is there not in this agreement a studied effort to conceal the truth from those who were interested in knowing it, and whom the plaintiffs and Packer wanted not to know it? Under this impression I should, on the argument of this case, had it not been for the dissent of my Lord Chief Baron and of most of my learned brothers, have arrived at a confident opinion, that there was not some evidence only, but cogent evidence, of such a suppression of the truth by a partial, inaccurate, and subdolous setting forth by the plaintiffs in the agreement, of facts within their knowledge material for the proposed sureties to be informed of as, along with the non-communication of other facts material for them to know, amounted to a misrepresentation to the proposed sureties, that they were asked to come under none but the more ordinary liability of sureties-a contingent liability, and that Packer, during his five years' agency, had proved himself to be a man worthy of trust and confidence, a satisfactory guarantor of others, and himself the safe subject of a guarantee. It is difficult to conceive language more obscure, and better calculated to mislead, or dissimulation more insidious, than in the agreement. Who would imagine that a recital "that James Packer has for some time past been a salesman of coals on commission for the said Lee & Jerdein, he, the said James Packer, giving bills of exchange to them for all such coals as may be delivered to his order, such bills being floating bills, to be settled for and paid up at the expiration of the current months during which such bills are respectively running," was, if true, in any sense, true only in the loose sense that he had contracted five years before to give bills from time to time for such coals as might be delivered to his order, with out any stipulation as to their being settled for and paid up at the expiration of the current months during which they were running; and that the course of dealing thus described, if it ever existed, had not, as the case expressly states, been observed by Packer for a very considerable time? What plain man, bargaining with one whom he thought honest, and did not care to insult, could reasonably be expected to inquire whether the words "should give to Lee & The case of Raillon v. Matthears (10 Cl. & Fin. 935) Jerdein a floating and continuing guarantee for the decided, that on an issue "whether the pursuer was term of three years," might not mean, or be in-induced to subscribe the bond by undue concealment or But it was urged on the part of the plaintiffs, and with the apparent assent of some of my brothers, that we are concluded on this point by authority, and that if the cases which have been cited to us had been more maturely considered in the court below, its judgment would have been different. I do not think so. The two cases in the House of Lords, and the case in the Court of Exchequer, appear to me to have been rightly understood. By the Lord Chief Justice at Nisi Prius, and by the Court of Common Pleas, and to be in favour of the defendant. There is not a word in them tending to weaken the principle, that an undue and fraudulent concealment of matters material to be known by the guarantor vitiates the contract which is tainted by it. deception on the part of the defendant," as explained by the summons of reduction of suretyship to mean, whether, when the defendant accepted and took possession of the said bond, they fraudulently suppressed and concealed the said whole facts and circumstances regarding the conduct and irregularities of the debtor," it was a misdirection to tell the jury "that such concealment, to vititiate the bond, must be wilful and intentional on the part of the person obtaining it, and with a view to an advantage to himself." Undue concealment, though not wilful and intentional, and with a view to the advantage of the person taking a guarantee, being thus held sufficient to vitiate it, the case is strongly in favour of the defendant, for there was in this case, as it seems to me, evidence that the non-communication to him by the plaintiffs was not merely undue, but wilful and intentional, and it was for their immediate advantage; and as they knew, and knew that the defendant did not know, for his immediate disadvantage, if an underhand dealing of guarantee by the party taking it can ever be so. But Railton v. Matthews is said to have been qualified by the later case of Hamilton v. Watson. Quite otherwise, as it appears to me. In Hamilton v. Watson, the true grounds of the decision of which are to be found in the judgment of Lord Cottenham, and in what fell from him in the course of the argument, rather than in the judgment of Lord Campbell, a cash credit on the guarantee of surety had been granted to a man already in debt to the bankers who granted it, and the debt, which had not been mentioned to the sureties, was discharged by a cheque, which but for the new cash credit the debtor would not have been in a position to draw. There was no allegation, as observed by Lord Cottenham, of fraud or misrepresentation, or of any secret agreement, as to the way in which the cash credit should be applied; but it was pressed upon the House at the bar, that it was the duty of bankers taking a guarantee for a cash credit, to inform the party giving the guarantee of every circumstance in the previous dealings of the party guaranteed which might influence the consideration whether the guarantee should be given or refused. Lord Cottenham and Lord Campbell combat the contention in their judgments. The latter suggests, as a criterion of innocent silence on the part of a creditor taking a suretyship bond, whether the fact not disclosed be one the existence of which might naturally be expected by the surety, as the indebtedness to his bankers of a person asking friends to be sureties for him to those bankers in a new cash credit would be. Their decision is, that where there is no fraudulent concealment, it is not necessary to the validity of a cash credit surety bond that all the circumstances of the dealings between the debtor and the creditor taking it should be voluntarily disclosed by him to the party giving it. There is a wide difference as respects what might naturally be expected to be the actual state of the account of one man with another-between the case of a suretyship for a man requiring and applying for a cash credit to bankers with whom he had had previous dealings, and whose business it is to lend capital to pennyless persons, on the security of sureties, and the case of a suretyship for the security of others. A surety between whom, as such, and his employers, short reckonings, as the defendant was led to suppose, had for five years been observed as a rule. But it is unnecessary to dwell upon the distinction; for in Hamilton v. Watson neither fraud nor fraudulent concealment was charged; whereas here they are charged, and the only question is, whether there was any evidence to be left to the jury of them. The case of The North British Insurance Company v. Lloyd would not probably have been cited had it not been for the distinction, re-established by my Lord Chief Baron, between the contracts of insurance and of guarantee. The fact not disclosed in that case was considered by the jury not to have been one material for the jury to be informed of, and the Court concurred in their decision upon that point. It is stated in the case, that there was "no evidence to shew that the plaintiffs were aware, at the time the agreement of October, 1861, was entered into, that Packer had actually received payment from the customers for the coals delivered to his order." This seems to imply that Packer had received such payment; and though we are not at liberty to infer the plaintiffs' knowledge, we are at liberty to infer, that, while contemplating the obtaining of the suretyship of the defendant and of the other sureties, the plaintiffs were deliberately and grossly negligent of a duty which, for the sake of the proposed sureties, it was incumbent on them to discharge the duty of ascertaining the cause of Packer's default, whether he had received payment for the coals delivered to his order, and, if so, whether the money which he ought to have paid over to the plaintiffs within sixteen days of its receipt had been applied by him to other uses. "Dissoluta negligentia prope dolum est." (Dig., lib. 17, tit. I, s. 29). If Packer, with the plaintiffs' authority, had actually received payment for the coals delivered to his order, the observation of one of my learned brothers, in the course of the argument, that the customers, notwithstanding Packer's intervention, were, as well as he, and they primarily, responsible to the plaintiffs, would have less weight than it might otherwise be entitled to. This double liability of Packer and of the customers to the plaintiffs could in no case, as it appears to me, countervail the inherent uglinesses of the transactions. And upon the whole, I am of opinion that the judgment of the Court of Common Pleas should be affirmed. BLACKBURN, J.-I am of opinion that in this case the decision of the Court below should be affirmed. The question is, whether, under the circumstances stated in the case, there was evidence to go to the jury in support of the averment of fraud; for I think that the averments of undue concealment carry the case no further, and that unless actual fraud was proved, that the substance of the issue was not proved. It was decided in The North British Insurance Company v. Lloyd, that the rule, that all material circumstances known to the insured must be disclosed, is peculiar to contracts of insurance, and that it does not extend to contracts of guarantee. I concur in this, which I think founded on principle as well as authority. It was pointed out by the Chief Baron in the argument in the present case, that a surety is in general a friend of the principal debtor, acting at his request, and not at that of the creditor; and in ordinary cases it may be assumed, that the surety obtains from the principal all the information he requires; and I think that great practical mischief would ensue, if the creditor were by law required to disclose everything material known to him, as in a case of insurance. If it were so, no creditor could rely upon a contract of guarantee, unless he communicated to the proposed sureties everything relating to his dealings with the principal, to an extent which would, in the ordinary course of things, be so vexatious and annoying to the principal and his friends, the intended sureties, that such a rule would practically prohibit the obtaining of contracts of suretyship in matters of business. This is well pointed out by Lord Campbell in his judgment in Hamilton v. Watson. But I think, on authority and on principle, that where the creditor describes to the proposed sureties |