that unless it was without enquiry self-evident that the alteration was unsubstantial, or one which could not be prejudicial to the surety, the Court would not go into an enquiry or permit the question to be submitted to a jury; but would hold that the surety must be the sole judge as to whether he will remain liable notwithstanding the alteration. See also observations of Moss, C. J. O., in Austin v. Gibson, 4 A. R., at p. 321.

Brett, L. J., stated his opinion to be that, "If there is a material alteration of the relation in a contract, the observance of which is necessary; and, if a man makes himself a surety by an instrument reciting the principal relation or contract in such specific terms as to make the observance of the specific terms the condition of his liability, then any alteration which happens is material; but where the surety makes himself responsible in general terms for the observance of certain relations between parties in a certain contract between two parties, he is not released by an immaterial alteration in that relation or contract."

The case in 10 Ex. 77 was cited in argument, but the judgments make no reference to it or the cases above referred to in 8 Ex. 214, and 9 Ex. 430.

The learned Chief Justice of this Division when in the Queen's Bench Division, decided the case of the Canada Agricultural Ins. Co. v. Watt, reported in 30 C. P. 350, in which he reviews most of the authorities, and stated that if it had been necessary for him to decide the question whether the change in the remuneration of a principal by the substitution of a commission for a fixed salary would discharge the surety, he would have great difficulty in doing so, but that he inclined to the view that it would if the nature of the remuneration was communicated to him as it would be an alteration in the relation of the principals that might or might not be prejudicial to the surety and so involve enquiry.

Applying either the rule of the majority of the Court or that of Brett, L. J., in Holme v. Brunskill, can it be argued successfully that the cutting off the outside agencies, taking

away the chance of a commission for all the work outside of Toronto, with the probable result that the salary would be discontinued, was a change which was without enquiry, evidently unsubstantial, and which could not be prejudicial to the surety, or that the agreement as recited is not recited in such specific terms as to make the observance of the specific terms a condition of liability?

In my opinion, the change was one which might diminish the income of Boughton and thus increase the risk of the sureties, and the recital was specific both as to duties and remuneration.

As to the alleged addition of Galt and Hamilton, I am of the opinion, on the evidence, that what was done as to them was, without enquiry, evidently unsubstantial. Boughton was asked to obtain an agent for the company at Hamilton and failed, and the old agent remained in possession of that agency.

As to Galt, on the 20th November, 1883, the plaintiff's general manager wrote to Boughton as follows: "Since appointing Mr. Jones our accident agent at Galt, we have received a number of letters from him somewhat similar to the enclosed, and some little business. I have written to him frequently and have done all I could to keep his head before the wind, and now have pleasure in turning him over to you."

Boughton, in his evidence at the trial, said as follows:

"Q. Now what reply did you make to that? A. The reply to that letter was simply that I would look after it.

"Q. Do you know whether you did answer in fact or simply acted upon it. A. It is my impression I acted upon it. I believe I had some correspondence with the agent at Galt.

"Q. What did you do, or what do you think you had to do in connection with this letter? A. I kept in communication with all the agents. "Q. Who is Mr. Jones? A. I had nothing to do with him.

"Q. After this letter, rightfully or wrongfully you did take charge of the Galt agency? A. Certainly.

Q. In what way would he come under that charge? A. In the way of advising me as to insurance.

Q, Was there in fact any business done by Mr. Jones after this? A. I cannot say for I never could find out from the Head Office."

50-VOL. XIII. O.R.

From such evidence it seems impossible to find any substantial alteration.

If the evidence had been of a different character, it would have become necessary to have carefully considered the effect of Skillett v. Fletcher, L. R. 2 C. P. 469, where it was held that the appointment of a principal to a new and distinct office did not discharge the sureties. See judgment of Blackburn, J., p. 474.

There yet remains to be considered the effect of the renunciation clause. The meaning of "division" and "discussion" may be found in Story's Conflict of Laws, 8th ed., sec. 322b.; and see also Bonar v. Macdonald, p. 227 note (a).

We were not referred to any decision as to the meaning or effect of such a clause as we have here, and I have not been able to discover any. Unaided by authority the best opinion I can form is, that the words must be taken with their ordinary meaning, and that the effect is that the sureties intended to renounce all benefits of sureties, and consented to be bound as fully in all respects as the principal. In other words the principal and sureties became in a sense joint contractors.

Assuming this to be so, then what would be the respective rights of the parties? A joint contractor certainly would not be bound by a new contract made by his cocontractor with the creditor without his knowledge and consent, unless it could be inferred that there was authority on the doctrine of implied agency. Nor, on the other hand, as it seems to me, would he be released by such efforts as were here made by the plaintiffs to engage the attention of Boughton to the Hamilton and Galt agencies, which certainly did not work to his prejudice.

The principal governing such cases may be, to use language found in another connection in Bailey v. Griffith, 40 U. C. R. 418, at p. 432, "that where a creditor has at the time of the contract notice of an equity existing between two persons with whom he is concerned, it is his duty so to deal with the parties as not to affect their equitable rights."

To illustrate by the case before us. I have come to the conclusion that the agreement entered into between the plaintiffs and Boughton, by which the outside agencies were taken away and the income lessened, might have increased the sur eties' risk and so released them as sureties. If, however, it appears that not only did it not increase the risk, but as a matter of fact lessened it, and was a direct benefit to the sureties, then, if they were bound as fully in all respect as the principal party, would there be any release?

After the new arrangement, if binding upon the parties, and if it changed their position, could the plaintiffs recover against the sureties for any subsequent default? Would not the answer be, you are suing me for liability on a new contract to which I never became a party? And, if a claim is made on the sureties as principals for default previous to the new arrangement, would they not be entitled to shew that the new agreement prevented Boughton earning sufficient to pay off such liabilities as were created previous to making the new agreement, or possibly to call upon the plaintiffs to shew that the new arrangement did not work to their prejudice?

But looking at Boughton and his sureties as principals only, the clause in the agreement, which provided that if Boughton did not devote proper care and attention to the objects of the agreement the same should be terminable upon sixty days' notice, requires consideration.

Could the plaintiffs, by agreement with one of the principals, consent that he might neglect part of his duty and give up a portion of his income? Would that not be in effect a new agreement? If so, must they not, if they wish to put an end to the old agreement, give the sixty days' notice and then enter into such new arrangement as they might desire? Could the plaintiffs answer thus ? "You, the principals, left the work to be performed by one of yourselves. He neglected his duties; and, instead of putting an end to the contract upon notice, we relieved. him of the neglected duties and deprived him of the

income, which was given as a reward for attending to them, and continued him in his office to discharge his remaining duties with the residue of his income." Would not the reply to this be, that the contract provided a mode of determination for neglect of duty, and, unless that was adopted, it remained in full force?

Then, may not the result be as follows: As sureties, the defendants, Cluxton and Case, are released; as principals, they are released if what was done was effectual and was to their detriment, or that if what was done was not effectual, they are liable to answer for the default shewn on the footing of an account, crediting Boughton with all the commissions to which he would have been entitled if the attempted arrangement had not been made?

The effect of treating the parties as principals was not fully discussed before us; and I think it better not dispose of the question, which I have suggested, without further argument.

On the 4th of June this case was reargued as to the rights of the defendants as joint contractors or principals.

Mr. Robinson, as I understand him, admitted that if the new arrangement amounted to a new contract the defendant would not be liable after that date.

Upon the best consideration I am able to give to the matter, I think the new arrangement did amount to a new contract, whereby the territory was lessened and the remuneration changed, and possibly also lessened; and that the defendants are liable for default up to the date of that arrangement, but not thereafter; and, to such extent, the judgment must be varied.

If the parties cannot agree upon the statement of accounts, I suppose there must be a reference, and costs reserved until after reference. The plaintiffs must have the costs of the action, save as to the costs of this motion, to which neither party is entitled, as neither has wholly succeeded.