The prisoner Gibbons was acquitted and the prisoner Morris was convicted.

If the Court should be of opinion that a conviction for th: assault, at the instance of the injured person, under sec. 45, affords a defence in law to an indictment for manslaughter resulting from that assault, then a plea of not guilty to be entered, otherwise the prisoner Morris to be called up for judgment at the next assizes. G. Browne for the prisoner. No counsel appeared on the other side.

[MARTIN. B, mentioned Salvi's case, reported in the Old Bailey Sessions Papers, 1857, vol. 46, p. 884, the nature of which is stated in the following judgme t; and KELLY, C. B., said the question turned on the meaning of the words

for the same cause." in 24 & 25 Vic. cap. 100, sec. 45] Rg. v. Walker, 2 Moo. & Ry. 44; Reg. v. Elrington, 1 B. & S 688, 10 W. R. 13; and Reg. v. Stanton, 5 Cox, C. C. 324, were referred to.

Cur, adv. vult.

KELLY, C.B-In this case I have the misfortune to differ with my learned brethren, who are of opinion that the conviction ought to be affirmed The prisoner was charged before the magistrates with an assault, under the 24 & 25 Vict. cap. 100, at the instance of the party aggrieved, and now deceased. Timothy Lymer was convicted and sentenced to imprisonment with hard labour, and has undergone that sentence. The assault, the unlawful act with which he was charged, is the same assault, and one and the same act as that which caused the death of Lymer, and of which he has been convicte l under the present indictment. I think therefore that the case comes within the precise words of section 45 of the 24 & 25 Vic. cap. 100, which provides that in such a case "he shall be released from all further or other proceedings civil or criminal for the same cause." It is true that the offence is now charged in other language, and that which before the magistrates was described as an assault is now described as manslaughter; but it is one and the same act, and the cause of the prosecution before the magistrates and the cause of this prosecution are one and the same cause. The case therefore comes within the letter as well as the spirit of the Act of Parliament, and I think that to sustain this conviction would be directly to violate the maxim or principle of the law, "nomo debet vis vexari (here we might say puniri) pro eadem causâ " Cases may indeed be suggested in which there might be a failure of justice, as where an assault should have been treated lightly by a magistrate and upon conviction a slight sentence passed, and vet, from the subsequent death of the party assaulted, the offence might amount to murder; but such a case must be rare and exceptional, and I think we ought to presume that the magistrates will in all cases under this or any other Act of Parliament do their duty, and as, where the charge is made at the instance of the party aggrieved, it may also be presumed that the whole of the evidence would be fully brought before the magistrates. and upon conviction an adequate punishment inflicted accordingly. I do not think it was the intention of the Legislature or consistent with natural justice, that the acci deut of the subs quen death of the par y should

[Eng. Rep.

subject the accused to a repetition of the trial and the punishment. Salvi's case is clearly distinguishable. There the prisonor was indicted for the murder of one Robertson, and pleaded a plea of autrefois acquit, the acquittal having been upon an indictment for woan ling with intent to kill. It was clear that this acquittal might have been pronounced upon the ground of the jury having negatived the intent to kill, and yet that the prisoner might well be guilty of the murder without an intent to kill the individual murdere i, as if he had shot at another man, but unintentionally killed Robertson. The plea therefore of autrefois acquit was in that case properly overruled. Here, however, the prisoner has been tried, convicted, and punished for the very same. offence in all its parts, though under a new name, as that for which he is now indicted and again convicted; and it seems to me that to allow this conviction to stand, is to punish a man twice for the very same cause in violation of the before mentioned maxim, and of the express declaration of the Act of Parliament. I think therefore that the conviction ought to be quashed

He The

MARTIN, B., said the question was whether the suffering the imprisonmeut imposed by the justices was a defence to this in lictment agreed that Salvi's case was not in point meaning of the words "the same cause," in the 45th section, was the same cause as that on which the justices had adjudicated; and, in his opinion, a new offence arose when this man died.

BYLES. JI am of opinion that under statute 24 & 25 Vic. cap. 100, sec 45. the prior conviction of the assault affords no defence to the subsequent indictment of manslaughter, the death of the deceased having occurred after the conviction, but being a consequence of the assault. The form and intention of the common law pleas of autrefois convict and autrefois acquit, show that they apply only where there has been a former judicial decision on the same accusation in substance, and where the question in dispute has been already decided. There has, in the present case, been no judicia! decision on the same accusation and the whole question now in dispute could not have been decided; for at the time of the hearing before the magistrates whether the assault would amount to culpable homicide or not, depended on the then future contingency whether it would cause death. The case of Reg. v. Salvi, argued before the Lord Chief Baron Pollock and my brothers Martin and Willes, if not precisely in point, is nevertheless a strong authority for this view of the law. But reliance is placed on the words of the statute (24 & 25 Vic. cap. 100, sec. 45) "for the same cause." It is to be observed that that statute does not say for the same act, but for the same cause. The word "cause" may undoubtedly mean act, but it is ambiguous, and it may also, perhaps with greater propriety, be held to mean "cause for the accusation." The cause for the preseut indictment comprehends more than the cause in the former summons before the magistrate, for it comprehends the death of the party assaulted. It is, therefore, at least in one sense, not the same cause. But if these observations on the meaning of the word cause," as used in the statute, should appear to savour too much vť refinement, and to be used in supert of a

Eng. Rep.]

An

forced construction, it must be remembered that it is a sound rule to construe a statute in conformity with the common law rather than against it, except where or so far as the statute is plainly intended to alter the course of common law. additional reason in this case for following the common law is the mischief which would result from a different construction. My brother Martin has already illustrated the mischief in civil cases by a reference to Lord Campbell's Act. And in criminal cases the mischief might be much greater, a murderer, for example, by suffering or obtaining a previous conviction for an assault, might escape the due punishment of his crime. KEATING and SHEE, JJ., concurred.

Conviction affirmed.

COURT OF EXCHEQUER.

RE ROBINSON.

Attorney's bil-Taxation -Lapse of twelve months after delivery-" Special circumstances"-6 & 7 Vict. c. 73, s. 37. The fact that an attorney's bill contains charges which are prima facie and in the absence of explanation excessive. may constitute a "special circumstance" within the meaning of the 6 & 7 Vict. c. 73, s. 37, enabling the court or a judge to order a reference for taxation after the expiration of twelve months from the delivery of the bill.

[Ex. Nov. 14, 1867.-17 L. T., N. S., 179.]

In this case Martin, B. had made an order referring an attorney's bill of costs to the master for taxation. The bill was delivered in Sept. 1866. The costs in question had been incurred in defending an action tried in the country, in which the plaintiff obtained a verdict, and the bill contained a number of items relating to attendance in Lou ton for the purposes of a motion for a new trial, and of the taxation of plaintiff's costs, the items of which it is unnecessary to specify, but which, as will be seen below, the court thought prima facie, and in the absence of special circumstances excessive in amount. The defendant's attorney had made several applications to the defendant for the amount, which in the first instance had been answered by promises of payment. Subsequently to March 26, 1867, further applications for payment had been met with complaints that some of the charges were excessive, and demands of a reduction in the amount. Ultimately, upon the 6th Nov. 1867, being more than twelve months from the delivery of the bill, the order of reference to taxation was obtained by the defendant.

The 6 & 7 Vict. c. 73, s. 37, provides for the reference of attorneys' bills for taxation, but coutains the following proviso:

"Provided always, that no such reference as aforesaid shall be directed upon an application made by the party chargeable with such bill after a verdict shall have been obtained, or a writ of inquiry executed in any action for the recovery of the demand of such attorney, &c., or after the expiration of twelve months after such bill shall have been delivered, sent, or left as aforesaid, except under special circumstances to be proved to the satisfaction of the court or julge to whom the application for such reference shall be made "

Field, Q. C. (with him Shepherd) moved to set the order aside.-This question turns upon the meaning of the words " special circumstances," in the 6 & 7 Vict. c. 73, s. 37. There are no

[Eng. Rep.

special circumstances within the meaning of the Act in this case. The amount of the charges made does not constitute such a circumstance. That was known to the defendant during the twelve months after the delivery of the bill, aud special circumstances must be something which has occurred, or come to the party's knowledge, after the expiration of that time, or something involving fraud or misrepresentation on the part of the attorney by which the party charged has been induced not to move during the time. Re Whicher, 13 M. & W. 549.

KELLY, C B.-No court ought to interfere for the purpose of referring a bill to taxation after the lapse of twelve months upon grounds of a trivial character, or unless circumstances exist which make it only reasonable that it should be so referred. In this case, however, some of the charges made in the bill, are charges which are prima facie excessive. It is of course possible that it may be shown to the satisfaction of the master that by reason of special circumstances these charges were reasonable and necessary, but in the absence of such circumstances they are of an extreme nature, and such as the client has a fair right to have referred to taxation. I think, therefore, that although the twelve months had elapsed, special circumstances existed which rendered it quite competent for the judge to refer this bill for the taxation.

MARTIN, B-I am of the same opinion. I do not say that it would be right to refer a bill to taxation on such grounds after the lapse of a very long period when the particulars had passed out of memory, but in this, two months had not elapsed after the twelve months.

PIGOTT, B.-I am of the same opinion. I think that, in the interest of both attorneys and clients this Act should receive a liberal construction, and that when a judge has seen special circumstances in a case, we ought to be very slow in reviewing his decision. Rule refused.

CHANCERY.

BAXENDALE V. MCMURRAY.

Nuisance-Fouling of a stream-Prescriptive right-Use of a new species of raw material in a manufacture-Practice -Jurisdiction of one Lord Justice sitting alone to hear appeals from decrees made upon motion for de cree. The defendant occupied paper mills on the banks of a stream, into which he discharged the refuse of his manufacture. A prescriptive right to foul the stream had been acquired by the defendant's predecessors in the occupa tion of the mills. Those predecessors used rags in the manufacture of papers. Soon after the defendant came into occupation of the mills he introduced into, and employed in, the manufacture a new raw materfal called esparto grass. Upon a suit by a neighbouring occupier to restrain the defendant from fouling the stream to the plaintiff's injury, it was contended that, independently of any increased fouling of the stream, the plaintiff' bad a right to an injunction by reason of the nuisance caused by the use of e-parto grass being a new kind of nuisance in respect of which no prescriptive right had been acquired by the defendant.

Held, that it was not sufficient for the plaintiff to show that the defendant used in his manufacture a new raw material, but that he must showfurther a greater amount of pollution and injury arising from its use, and that the onus of showing this lay on the plaintiff.

The plaintiff not having shown this, his bill was dismissed with costs.

Under the statute 30 & 31 Vic. c. 64, s. 1, one Lord Justice sitting alone has jurisdiction to hear and decide appeals from decrees made upon motion for decree.

[L J., July 31, 1867-16 W. R. 32.]

This was an appeal from a decree made by ViceChancellor Stuart, upon the plaintiff's motion for a decree, granting a perpetual injunction to restrain the defendant from fouling a stream to the injury of the plaintiff.

The plaintiff occupied premises upon the banks of the River Chess, in Hertfordshire, and the defendant occupied paper mills on the banks of the stream higher up than the plaintiff's premises, and the defendant discharged the refuse arising from his manufacture of paper into the stream. A prescriptive right to foul the stream to a certain extent had been acquired by the defendant's predecessors in the occupation of the same mills. Those predecessors manufactured paper from rags, but the defendant, soon after he came into the occupation of the mills, introduced into and employed in manufacture a new raw material called "Esparto Grass." The plaintiff filed his bill in this suit against the defendant, to restrain him from fouling the stream to the plaintiff's injury, and, on the hearing of a motion for decree, Vice-Chancellor Stuart made a decree for a perpetual injunction against the defendant. The defendant appealed.

Bacon, Q.C., Sir R. Palmer, Q C., and Fry, for the defendant.

Dickinson, Q.C., and Birley, for the petitioner, contended that the use of a new raw material by the defendant constituted a new kind of nuisance, as to which the prescriptive right did not extend, and that the onus of showing that there was no nuisance lay upon the defendant.

The following cases were cited;-Luttrell's case, 2 Co. Rep. 493; Dand v. Kingscote, 6 M. & W. 174; Bishop v. North, 11 M. & W. 429; Moore v. Webb, 1 C. B. N. S. 672; Case v. The Midland Counties R. Co, 28 L. J. Ch. 727.

The evidence in the case was very voluminous, and the appeal was heard at great length before the Lords Justices Turner and Cairns, and at the conclusion of the arguments on June 4th, judgment was received. Before judgment was delivered the Lord Justice Turner died. Soon after the statute 30 & 31 Vic. c. 64 was passed which enables one Lord Justice sitting alone to hear and decide appeals in certain cases.

Section 1 of that Act is as follows:-"All the jurisdiction, powers, and authorities of the said Court of Appeal under the Act 14 & 15 Vic. c. 83, or under any other Act, may (except as hereinafter mentioned) either by both of the judges appointed under the said Act when sitting together, or by either of the said judges when sitting separately, or by the Lord Chancellor when sitting with the said judges, or either of them; provided that no decree made on the hearing of a cause or on further consideration, shall be reheard before the said judges when sitting separately, provided also that the Lord Chancellor shall and may, while sitting alone, have and exercise the like jurisdiction, power, and athorities as might have been exercised by the Lord Chancellor if this Act had not been passed.

July 29th. The case was placed in the paper before Lord Cairns alone, with a view to his disposing of it. The parties, however, objected that it was doubtful whether, under the provisions of the above statute, one Lord Justice could decide an appeal from a decree, even though it were made upon motion for decree. It was therefore ar

[Eng. Rep.

ranged that, in order to prevent any doubt as to the right of either party to appeal to the House of Lords, the case should be placed in the paper before both the Lord Justices, so that the judg ment of the Court might be delivered by Lord Cairns, with the formal concurrence of Lord Justice Rolt.

July 41-The arguments were pro forma reopened. Before giving judgment

LORD CAIRNS, L. J., said that, as a doubt had been expressed as to the jurisdiction conferred by the new Act, and as the question might be material with respect to other cases, he thought it proper to state that he had conferred with the Lord Chancellor, (and with his learned brother Lord Justice Rolt, and that they all agreed in thinking that there could be no doubt that the words hearing of a cause" were used in the new Act in the technical sense which had been previously attached to them. The distinction was known and established between bringing a cause to hearing by means of filing replication, and by means of a motion for decree, the latter method not being technically the hearing of the cause. There could be no doubt therefore, as to the jurisdiction of one member of the Court to hear and decide appeals from decrees made upon motion for decree.

ROLT, L J., agreed that there could be no doubt that that was the meaning of the words in the Act.

LORD CAIRNS, L. J., then stated the nature of the case, and mentioned that the late Lord Justice concurred in the conclusion to which his Lordship had come. His Lordship then proceeded to say

-Does the use of a new raw material in the manufacture of paper, from the mere circumstance that the material is new and different from that formerly used, destroy the right previously possessed by the defendant to discharge polluted water into the stream? With great respect to his Honour the Vice-Chancellor, I doubt whether the question on this part of the case is one as much of law as of fact. The question appears to me to be, what is the right or easement of the defendant? Is it a right, specific and defined, to pollute the stream by discharging the dirty water in which rags have been washed; or is it a right to discharge into the river the refuse liquor and foul washings produced by the manufacture at his mills of paper, in the reasonable and proper course of such manufacture, using the materials which are proper for the purpose, but not increasing, as against the servient tenement to any substantial or tangible degree, the amount of pollution? In my opinion the right of the defendant would, upon the facts before us, be found, and be properly found, by a jury to be the latter aud not the former. It is difficult to suppose the existence of an easement, founded on and limited to the washing of rags. If made specific in this way, it would be confined to rags known and in use at the time the easement was acquired, and the rags of textile fabrics, afterwards coming into use must, however valuable for the manufacture of paper, be excluded. Rags, nain, would afford no standard by which to test r limit the amount of pollution Some would he much more dirty than others; the washings from some might be harmless, and from others dele

Eng. Rep.]

terious. In rags produced from vegetable subtance the properties of the fibrous matter might be very different; in some, as in linen and cotton rags, the fibre being elaborately treated in the course of manufacture; in others as in the coarse sacking or bagging, especially of hemp or jute, the fibre retaining much more of its original character,

I am therefore of opinion that it is not sufficient for the plaintiff to show that the defendant uses in the manufacture of paper a raw material different from that formerly employed; he must show, further, a greater amount of pollution, and injury arising from the use of this new material; and the onus, of conrse, of showing this lies on the plaintiff. His Lordship then discussed the evidence and came to the conclusion that the plaintiff had not made out his case. The bill must therefore be dismissed with costs, but there would be no costs of appeal

ROLT, L. J., expressed his formal concurrence.

The defendant attended before the examiner for cross-examination on his affidavit made in the suit, but refused to be sworn until a sufficient sum for his expenses had been offered by the plaintiff.

The Court, on motion by the plaintiff, ordered him to attend again at his own expense.

[V. C. S. Nov. 14, 1867-17 L. T., N. S., 163,] This was a motion that a defendant should be ordered to attend before the examiner at his cwn expenses, to be cross-examined on an affidavit made in the above cause. The facts were:

In June, 1867, the defendaat made the affidavit in question for the purpose of verifying his accounts as to the matters in dispute in the suit. Subsequently he was subpoenaed and attended at the office of the examiner for cross-examination, on the affidavit, but when there, refused to be sworn, in consequence, as was alleged, of a disagreement as to the sum to be paid for his expenses.

The plaintiff now moved as above, and further that the defendant might be ordered to bring with him and produce certain letters, and copies of letters, and also his letter-book or books, and all memoranda and accounts referred to in the subpoena obtained in the suit.

On the part of the defendant, it was objected that the subpoena was irregular in form, and that he had not been properly served with it.

Bacon, QC, and Dumerque appeared in support of the motion.

Dickinson, Q C., and Morris, for the defendant, contended that he was right in objecting to be sworn until an adequate amount had been offered for his expeneses. He was perfectly willing and ready to be cross-examined as soon as a proper sum had been arranged. It did not devolve on the plaintiff to fix the amount, but was a matter which ought to have been referred by him to the taxing master. Independently of the question of expenses there were irregularities in the subJona which justified the defendant in the course he had taken. By the orders of the court notice to cross-examine must be given within fourteen days. Now the affidavit was filed June 18, and

[Irish Rep.

the subpoena was not served on the defendant until July 8, several days after the time fixed by the orders. The subpoena also stated that the defendant was to be cross-examined on accounts as well as on the whole of the evidence. This was contrary to the practice: (Re Lord's Estate, L. Rep 2 Eq. 605.) Although the defendant had gone to the examiner's office, his attendance was voluntary, he had not been sworn, and could not be considered to have attended in form, or to have waived his right to object to the irregularities in the subpoena.

The VICE-CHANCELLOR-It is shown by the examiner's certificate that the defendant attended at the examiner's office. It is stated that he refused to be examined on account of the insuffiIt ciency of the sum offered for his expenses. was certainly open both to him and the plaintiff to have suggested that the taxing master should certify what was the proper sum to be paid, but that was not done. There has been an attempt to show that his refusal to be sworn arose out of certain irregularities in the subpoena, and not merely on account of the insufficient offer for expenses. That, however, does not appear to be the case, and, even if it were, the fact of the defendant having attended has put an end to any question as to irregularity, and it cannot now be raised. There must be an order that the defendant attend at his own expense, and pay the costs af this application. The plaintiff must undertake to pay the amount certified by the taxing master for the former attendance.

IRISH REPORTS.

QUEEN'S BENCH.

BELFAST BANKING COMPANY V. STANLEY. Demurrer-Surety as maker of joint promissory note-Reasonable time-Equitable plea.

To an action on a joint promissory note of three persons payable one month after demand, one of the makers pleaded on equitable grounds that he made the note as surety for another of the makers without consideration, of which the holders had notice, and that the holders did not make any demand from any of the joint makers of the note within a reasonable time, bnt delayed for an unreasonable time, to wit, ten years. Held, a bad plea.

[Q. B. (Ir.) April 25, 30-15 W. R. 989.] This was an action on a promissory note. The plaintiffs complained that the defendant, on the 5th July, 1855, by his promissory note now due, promised to pay the Belfast Banking Company on order at their office in Armagh £200 one month after demand, and the plaintiffs averred that afterwards, to wit, on 1st March, 1866. payment of said note was duly demanded of the defendant, and that more than one month had elapsed since the making of the said demand, but the defendant did not pay the said note, although the same was duly presented for payment at the office of the defendants in Armagh on the 19th November, 1866.

The defendant by his fourth plea said, upon equitable grounds, that he made the said note with one Jervais Winder and one Benjamin Peebles Davidson, and as the joint and several note of said three persons, he, the said Winder,

Irish Rep.]

and defendant making and signing same for the accommodation of said Benjamin P. Davidson, and as his sureties only, to secure a debt due to the plaintiffs by the said Davidson, and not otherwise, and that when the said note was made and delivered by defendant to plaintiffs it was agreed between plaintiffs and the several makers thereof that defendant and Winder should be liable to plaintiffs as sureties for said Davidson only, and except as aforesaid there never was any value or consideration for the making of the said note by the defendant; and the defendant said that although from the time of the making of the said note hitherto the plaintiffs were always the holders of the said note, the said plaintiffs did not within a reasonable time after the making of said note, after the making and delivering thereof to them as aforesaid, make any demand for the payment of the same according to the tenor thereof, either from the said Davidson, the principal debtor, or from the said J. Winder, or this defendant; but on the contrary, they the plaintiff's delayed to make any such demand for an unreasonable time, to wit, for the period of ten years from the making of said note and the delivery thereof to the plaintiffs.

To this defence the plaintiffs demurred, because it showed no obligation on the part of the plaintiffs to demand the payment of the said, note within any particular time from any of the parties in said defence mentioned, and because the forbearance of the plaintiffs to demand the payment of the said note within a reasonable time does not either at law or equity discharge the defendant from his liability to pay the said note.

George Foley, (with him McDonnell, Q. C) in support of the demurrer. The plea only shows forbearance No agreement to proceed within a reasonable time is alleged, and there is no obligation by law to proceed within any given time. Mere laches on the part of the creditor would not discharge a surety. He cited Madden v. Mc Mullen, 13 Ir. C. L. 303; Mors v. Hall, 5 Ex. 47; Frazer v. Jordon, 8 E. & B. 305; Gorng v. Edmonds, 6 Bing. 94; Wright v. Simpson, 6 Ves. 714, 733; Tucker v. Laing, 2 K. & Johns. 749.

Monroe, (with him Harrison, QC and Falkiner, QC.) in support of the plea This is rightly pleaded as an equitable defence: Pooley v. Harradine, 5 W. R. 405; 7 E. & B 431; 3 Jur. N.S. 488; Davies v. Stainbank, 6 De G. M. & G. 679. The defendant does not lose his rights as a surety because he is prima facie a principal. The tenor of the note may be departed from in order to recognize and give effect to those rights. Greenough v. McClelland, 30 L. J. Q. B. 15; 8 W. R. 612; Lawrence v. Walmsley, 31 L.J. C.P. 143; 10 W. R. 344. As against the person secondarily liable the holder must show that he has used due diligence in performing all the duties imposed upon him as against the person primarily liable: see Mutual Loan Fund Association v. Sudlow, 5 C. B. N. S. 451, where the surety was held discharged (though primarily liable by the tenor of the note) because the creditor had wasted the assets of the principal debtor. This, being the case of a negotiable instrument, is distinguishable from the cases cited on the other side. The ordinary case of a person secondarily liable on a negotiable instru

[Irish Rep.

ment is that of drawer or indorser, and once it is shown that the defendant is a person secondarily liable on this note, he is then in the same position as if he appeared as an indorser. Indorsers are entitled to notice of dishonour, and to have proceedings taken against the principal within a reasonable time, else there is a presumption that the bill is paid, in favour of the person secondarily liable. See Story on Bills, 409, section 322.

It would be inequitable to make any distinction between a surety in the position of the defendant and an indorser. The Statute of Limitations would not begin to run till demand was made; and in such a case it has been held that demand must be made within a reasonable time. Codman v. Rogers, 10 Pick 112.

McDonnell, Q.C., in reply.

O'BRIEN, J.-The defence here does not attempt to set up any special agreement between the parties, which would impose upon the plaintiffs the duty of making the demand for payment within any certain time. It does not aver that there was any application made to the plaintiffs to proceed upon the note. It does not even aver that the delay was not without the full concurrence of the defendant, or that any damage accrued to the defendant by reason of such delay; it is quite consistent with the plea that the defendant is as well able to pay the note as ever. Now, although all the parties are on the face of the note equally liable at law, still if the defendant signed the note for the accommodation of a third person without consideration, and that the plaintiffs had notice of this, he will be considered as a surety, and entitled to plead on equitable grounds any circumstances which would entitle a surety to be discharged in a court of equity. Here it is relied upon as a discharge that an unreasonable time elapsed before demand was made by the plaintiffs, but it is not alleged that they were ever called upon to present the note by the defendant or any one else. And in Mudden v. McMullen (supra) and Wright Simp8ɔn (supra) it is laid down that mere non-feasance of the creditor will not discharge the surety. if the creditor has not been required to take proceedings to recover the debt from the principal.. It was argued on the part of the defendant that this is an analogous case to the liability of an indorser of a bill or note, which ceases after a reasonable time has elapsed without any proceedings by the holder against the parties primarily liable. But there the respective liabilities of the parties appear in the face of the note; the position of the indorsee as a surety is clear and unmistakable; but no case has decided that mere lapse of a time can discharge a surety who sets up his rights of suretyship only by altering the prima facie liability of the parties as they appear on the face of the note. The distinction between securities payable at a certain date, viz., ordinary bills, cheques, &c., which are intended to be used immediately, and such instruments as this promissory note, payable on demand, and intended to be a continuing security, is clearly pointed out in Brook v. Mitchell, 9 M. & W, 18. I am therefore of opinion that the demurrer should be allowed.