I take it to be settled, that there must be something amounting to fraud to enable a surety to say that he is to be released from his contract on account of misrepresentation or concealment. This contention was deliberately raised at a late stage of the suit, and forms the basis of a specific portion of the prayer. The second ground on which relief is asked, is that the execution of the deed of August, 1857, released the plaintiff from liability upon the promissory note *of October, 1850. In this part of the case the plaintiff confesses a valid contract, and avoids it by force of subsequent events. This also is the subject of a specific distinct portion of the prayer. It is true, that, where a plaintiff succeeds on some broad ground, he is not necessarily to be subject to the costs of subsidiary points of difference on which he may have failed; but I apprehend, on the other hand, that it would be most unjust if a defendant at law having a good equitable defence, and believing it to be a valid and reasonably safe one to rely upon, should be allowed to bring before this Court another wholly distinct ground of defence, and especially one which can rest only on charges of fraud, without being subjected to the costs thereby occasioned when his contention proves to be wholly groundless. It is the duty of the Court, when a distinct case involving fraud is thus made, to investigate it, and see that the defendant is not harassed thereby either in character or in purse. (His Honour then discussed the evidence on the first point, and came to the conclusion that upon that the plaintiff had wholly failed, and must bear the costs.) The other point of the case was very ingeniously argued; but the law is now well established, that a person having a mortgage for a guaranteed debt is bound to hold it for the benefit of the surety, so as to enable him, on paying the debt which he has guaranteed, to take the security in its original condition unimpaired. In this case the principal debtor having become bankrupt, the creditor, instead of going in under the bankruptcy as he might have done, and applying to have the security realised and to be admitted to prove for the balance, in effect purchased the equity of redemption (no doubt on advantageous terms), the price being the surrender of his right of proof. The consequences of this were twofold: In the first place the surety could not get the security with the same title under which the creditor held it, which dated from 1850. This might be a matter of no small importance, having regard to the possibility of intervening judgments or other charges. All that the creditor can now give to the surety is a security taking priority from the present time. The right of the surety was to have the same security in exactly the same plight and condition in which it stood in the creditor's hands. This he cannot now get. Again, the surety has been deprived of the benefit of proof against the bankrupt's estate, Mr. James relied on authorities which decided that a creditor did not release a surety by signing the debtor's certificate, and argued that the surety might have paid the debt and gone in and proved himself. The decisions as to the effect of signing a bankrupt's certificate do not apply, because a debtor in giving his signature in a proper case is merely performing a duty; and if the surety does not obtain a voice in the matter himself, it is his own. fault. But here no proof was made by the creditor against the principal debtor; and the estate was as a matter of bargain released from proof; and this was done without giving any notice to the surety of what was contemplated. But, apart from this, the alteration which has been made in the nature of the security is a sufficient ground for my decision. The case before Lord Manners is quite reconcilable with the general principle. The plaintiff there came into equity upon a mortgage granted by a surety. The answer was not that the mortgage was bad, as Mr. James put it, but that it was a security for the performance of certain covenants, and that those covenants had been released; and consequently, that, if the surety paid the claim, and sought to use the name of the creditor in enforcing those covenants, he would be met by the answer that the covenants were gone. It was on that ground that the bill was dismissed. I refer to the case of Newton v. Chorlton (1), before myself, for the purpose of saying, that, although it has not been overruled, the LORDS JUSTICES have in another case intimated that they do not concur with the view which I then took. I am as much bound to submit to their opinion, as if the decision had been reversed on appeal before them. That was a case where a creditor after the contract of suretyship had obtained a security for the debt, which he afterwards parted with, and I considered that, in the absence of any authority, I could not hold that the same principle applied to after-taken securities which prevails with respect to those which exist at the date of the contract of suretyship, the full and unimpaired benefit of which the surety is entitled to have preserved for him. But the LORDS JUSTICES have since held that the rights of a surety extend to this, that he is entitled to have every after-taken security kept intact for his benefit. (1) 90 R. R. 501 (10 Hare, 646). The present is a much stronger case, because the security was taken at the time when the debt was contracted; but even if it had been otherwise, I should not think myself at liberty to follow Newton v. Chorlton, after the intimation of the opinion of the LORDS JUSTICES. For the present purpose, it is enough to say that I cannot enter into the question whether the security which the surety might now get, would or would not be as beneficial as the original security. He cannot have the same. title or the same estate which formed the security in 1850, and the effect of this alteration in the security is, that the surety is discharged. Declaration that plaintiff was discharged in equity by the execution of the deed of 1857, with consequential relief. Costs at law, and the costs of the suit occasioned by the claim for such relief as aforesaid, to be paid by the defendant. Dismiss so much of the bill as sought relief on the ground of misrepresentation and concealment, with costs. SOAMES v. EDGE (1). Plaintiff agreed to grant a lease to defendant when and so soon as he, defendant, should have built a new house on the land; and the defendant agreed to accept such lease when required, and by a certain day to pull down an old house then standing on the land, and build a new one on the site: Held, on demurrer to a bill praying specific performance and damages, that Lord Cairns' Act (21 & 22 Vict. c. 27) applied, and that the plaintiff was entitled to damages for the nonbuilding of the house, and to specific performance of the contract to accept the lease. THIS was a demurrer. were as follows: The material statements of the bill On April 21st, 1859, the plaintiff and defendant entered into an agreement, whereby the plaintiff agreed that when and so soon as the defendant should have erected a house thereinafter covenanted to be built on the site of a house No. 132, Cheapside, belonging to the plaintiff, he, the plaintiff, would grant a lease of the house so to be erected for the term of ninety years, at the yearly rent of 420l.; and the defendant agreed that he would accept the lease so agreed to be granted on the terms and conditions aforesaid, and execute a counterpart when required, and further agreed as follows: "that he, the said T. Edge, his executors or administrators, will or shall, on or before the 29th day of September next, at his own proper costs and charges, pull down the said messuage or tenement and pre(1) The repeal of Lord Cairns' Act by 46 & 47 Vict. c. 49, preserves the jurisdiction of the Court, which had been previously extended by the Judicature Acts: see Sayers v. Collyer SOAMES v. EDGE. [ *670 ] [ *671 ] mises, No. 122, Cheapside, aforesaid, and on the site thereof, in a good, sound, and substantial manner, and with proper materials of all kinds to be approved by the surveyor of the said W. A. Soames, and under the direction and inspection of the said surveyor, erect, build, and in a workmanlike manner finish one good and substantial brick messuage or tenement. The defendant, who had been previously in occupation of the premises, in pursuance and part performance of the agreement caused the old house to be pulled down, and sold the materials, and continued in possession, and paid part of the rent which accrued, but did not proceed to build a new house upon the old site. The plaintiff made *various applications to the defendant to proceed with the building, but without success. The plaintiff's surveyor was a Mr. Reed; and the bill averred that he was competent and willing to approve of the materials and direct and inspect the building of the house under the agreement, and offered, in case Mr. Reed should become unable or incompetent to do so, to appoint another competent person to act as his surveyor for the purpose. The bill also alleged that the provisions of the agreement relative to the approbation of building materials, and the direction and inspection of building by the surveyor of the plaintiff, or other provisions of the like nature, were common and usual provisions in such agreements, that the scope and meaning of such provisions were well understood in the building trade, and that builders habitually carried out contracts subject to such provisions. The bill prayed: First, that the defendant might be decreed on the said site in a good, sound, and substantial manner, and with proper materials of all kinds, to be approved by the plaintiff's surveyor, to build, and in a workmanlike manner finish one good and substantial brick messuage or tenement; or otherwise, on the said site, in a good, sound, and substantial manner, and with proper materials of all kinds, to build and in a workmanlike manner finish one proper, good, and substantial brick messuage or tenement; the plaintiff thereby offering to waive the benefit of the said provisions relative to the approbation of materials and the direction and inspection of building by the surveyor of the plaintiff, if the Court should decline to enforce specific performance without such waiver. Secondly, that the defendant might be decreed to accept *a proper lease of the said parcel of ground and premises at the time and on the terms mentioned in the agreement, the plaintiff offering to execute a proper lease. Thirdly, that the defendant might be ordered to pay to the plaintiff, either in addition to or substitution for any such relief, such damages and costs as, under the circumstances, the Court should think fit to award to the plaintiff by reason of the non-performance by the defendant of the said agreement, such damages to be assessed in such manner as the Court should direct. And for further relief. To this bill a demurrer for want of equity was filed. Mr. Haig (Sir H. Cairns, Q.C., with him) for the The Court will not perform a building contract, at any rate The lease is dependent on the house being built, and the plaintiff does not waive the condition that the house shall be finished before the lease is granted. This is not a case to which Sir H. Cairns's Act applies, because here the Court has no jurisdiction to decree specific performance. Mr. Daniel, Q.C., and Mr. Whately, for the plaintiff, were not called upon. VICE-CHANCELLOR SIR W. PAGE WOOD: I think this demurrer must be overruled. The bill is founded in part upon the Act of 1858, the object of which is to amend the procedure in Chancery, and to enable the Court to give damages in certain cases. It appears, that the defendant has entered into possession and pulled down the house, under the agreement stated in the bill. The agreement, therefore, is in part performed. The case of Brace v. Wehnert, to which reference has been made, was decided before the passing of this Act, and the MASTER OF THE ROLLS found it difficult to decree specific performance; and, speaking without having heard the other side, I must say that I should find it difficult here to decree specific performance for building this house. But there are two parts to this agreement, both very substantial; one, that which relates to the building of the house, and the other that the plaintiff will grant, and that the defendant will accept, a lease for ninety years at a rent of 4201. a year, which is a proper matter for specific performance. But the plaintiff is (1) 119 R. R. 442 (25 Beav. 348). (2) 8 Ves. 159. (3) 109 R. R. 147 (7 D. M. & G. SOAMES v. EDGE. [ 672 ] |