426 HARVARD LAW REVIEW. a new trespass on the actual possession of the true owner — which ex hypothesi has terminated. The analogy drawn from decisions like the principal case where the goods are carried from county to county is a mis- taken one. There the thief can be punished but once. It is really a rule of convenience. If the palpable fiction of continuing trespass be adopted to its full extent, and the defendant make a tour with the stolen property through every State in the Union, there is othing but death to prevent nis retracing his steps in a series of imprisonments. The Defences of a Surety. — If a creditor gives tTie principal debtor time for payment the surety is injured because ne is deprived of his un- doubted right to pay the debt at maturity, and at once sue the principal in the creditor's name. The occasions when this injury will constitute a defence to a suit by the creditor have caused much discussion. In the recent case of Grier v. Flitcraft, 41 Atl. Rep. 425 (N. J, Ch.), a surety and his principal had signed a note as joint and several makers. The note itself did not disclose that the relation of suretyship existed, but the payee took the note with notice that this relation did exist. The surety filed a bill to have the collection of the note enjoined because the payee had given time to the principal debtor. The payee claimed that this action could be pleaded as a defence to a suit at law, and that therefore equity had no jurisdiction. The court held they had jurisdic- tion, reasoning substantially as follows: The creditor took the note with notice that the complainant was only a surety. By so taking it he im- pliedly agreed to respect the complainant's rights as surety, and con- tracted not to impair his remedies against the principal. Unless, then, the face of the note disclosed the fact that the relation of suretyship existed, this contract could not be proved at law, for the terms of a specialty cannot be altered by parol. Accordingly it was proper for the surety to seek the aid of equity. It may be true that equity has a concurrent jurisdiction in cases of this kind, but the position that breach of contract is the basis of the defence, and that it is available at law, only when the suretyship is mentioned in the note seems questionable. Though this position is approved by the courts of Maryland it is disapproved by almost all other juiisdictions. The courts of equity were the first to hold that time given was a defence, and at the start the decisions were based not on the ground that there had been a breach of implied contract, but on the principle that the payee's sole claim was to be paid fully, and that it would be unjust to allow him knowingly to prejudice the surety's remedies against the principal and afterwards also to collect the entire claim. Nishet v. Smith, 2 Bro. C. C. 579 (1789). In 1800 the courts of law began to allow this defence. The subsequent party to a bill was held discharged when time was given a prior party. English v. Darley, 2 Bos. & Pul. 61. These early cases at law were also decided on strictly equitable grounds and without mention- ing implied contract. Gould v. Robson, 8 East, 576 (1807). In 1817 Lord Eldon said that the same principles which discharge the surety in equity now discharge him at law. Samuell v. Howarth, 3 Mer. 272. In spite of this start, the courts of law during the next forty years in their desire to be governed by legal, not equitable reasoning, laid hold of cer- tain suggestions in Rees v. Berrington, 2 Ves. Jr. 540 (1795), and finally
