¢ MIA MIA PASTORAL COMPANY LIMITED V BOYLE. 63/ 17a) Jorn oy (922 ee Judgmente Knox C.J. ° The appellant sued the respondent for money alleged to be due on covenants contained in two instruments of mortgage given by the defendant to Alfred and Emanuel Abrahams and transferred by \ them to the appellant. The grounds of defence were :+ (1) That the covenants sued on were inserted in the instruments of mortgage by mistake. * (2) That the defendant exeouted the said instruments as surety for R.M.Boyle and Ellen Boyle and was discharged from liability hy the said A & E Abrahame having given time to the principal i debtor R.M.Boyle. ; (3) That it was;term of the said instruments that the total amount | to be advanced to the principal debtors should not exceed £15000 and that by reason of the advances having exceeded that sum the defendant was either (a) redeased from all liability or (bv) liable only for the sum for which he would have been apie if there Had been no such breach or (oc) that the total amount of \ the debt for which he beoame liable was £15000. Onathe trial of the action MoMillan C.J. found thata the defendant was a surety under the instruments sued on and directed accounts to be taken to ascertaingthe amounts due from the defendant to the plaintifté on such instruments and that judgment be entered for the plaintiff for the amount certified to be due on the taking of such accounts, and reserved the question of costs. The judgment also contained a declaration that on payment by defendant to plain- tiff of the amdunt found due and of all costs of the action which the Court might order to be paid to the plaintiff , vhe defendant Qe. should be entitled to the collateral securities held by the plain- tiff to further seoure payment of the amount due from the defendant to the plaintiff under the inetrumente sued on, The defendant appealed to the Full Court of Western Aus= tralia from this judgment. On the appeal the Full Court varied the judgment of the Chief Justice by inserting declarations (1) that the total liability of the defendant for principal moneys was £15000 less the proceeds of certain securities the proceeds whereof had or ought to have been received by -the said A&E Abrahams and (2) that all interest which was not paid by the defendant within the period prescribed in the securities sued on and which by reason thereof became or as a fact was capitalised formed part of the principal moneye advanced and was included in the limitation of the liability of the defendant and (3) that on payment by defen- dant of the anognt certified to be due on the taking of the account ; therehy ordered and of such costs of the action as the Court might order to be paid by him the defendant should be entitled to all the securkties held by the plaintiff to further secure payment of the amount(if any) so certified to be due from the defendant to the plaintiff under the mortgages sued og less such securities as had been realised as therein before mentioned and the proceeds wereot had been or ought to have been applied in reduction of the liability of the défendant, The plaintiff then appealed to this Court and it becomes necessary for us to consider what judgment should have been entered by the Supreme Court in Full Court, The questions argued before us were t~ (1) Whether the covenants for payment by defendant were inserted in the instruments of mortgage by mistake. (2) Whether the defendant was e principal debtor or a eurety. Be (3) Whether if the defendant was a surety he was relesaed from liability by reason of time having been given to the principal debtor without the consent of the defendant. (4) Whether the liability of the defendant under this covenant was limited to £15000 including arrears of intereat which had been capitalised in accordance with the terms of the securities. T propose to deal with these question in the order in which they are stated above. 1. Mistake. The learned Chief Justice found that the defendant had failed to make out this ground of defence, Having had the aduantage of seeing the witnesses in. the box and of hearing them give their evidence he came to the conchusion that no mttual mistake had been proved. On this point I need say no more than that I agree that in order to succeed on this ground it was necessary for the defendant to make out a case of mutual mistake and that in my opinion fhe wholly failed to do so. 2. Principal debtor or surety. I think it is clear on the face of the documentsa& sued on that defendant although he made himself per- sonally and in a sense. primarily liable thereunder was a surety for R.M. and Ellen Boyles The contention that he was a principal debtor ahd not a surety ia in my opinion quite untenable ~ "Whoever is liabae to pay the debt of another is a surety" + per Jessel M.R. Imperial Bank _v_ London and St Katherine's Dodk Coy (5 Ch. D at pe 200) 3. The giving of time to the principal debtors. Assuming that there was a binding agreement between A & E-Abrahams and the principal deb- tors R.M. & Ellem Boyle to give time for payment ~ as to which I feel considerable doubt - I think it is abundantly clear from the wvidence that the transaction was entered into with the consent of the defen~ pti ea ey dant . McMillan C.J. belived thy evidenog/and was i better pos CLC pA: ition to estimate ite value than we can be-tay' I see no reason to doubt that his decision on thia point was correct. 4, Limitation of Liability of Defendant. The decision on this question depends entirely on the construction of the instruments sued Bry. on. The memorandum of nortgage under the Land Act (Exe #& & 2) containsthe following recitals vizt~ "Whereas Richard Michael Boyle of "Maywood* Greenhills in the State of Western Australia Farmer and Ellen Boyle of the same place hie wife have applied to Alfred Abrahams rotn of Benevuta Drummond Street Carlton in the State of Victoria Mer- chants to at the time of the execution thereof advance to them the sum of £12,700 and ALSO to at their absolute discretion make the said Ric- hard Michael Boyle and Ellen Boyle further advances so that the total gum to be advanced including the said sum of £12,700 ehall not exceed £15,000 AND WHEREAS THomas William Boyle of Greenhills aforesaid Far- | mer and Richard Boyle the younger have requested the said Alfred Abre- hams and Emanuel Abrahams to make euch present advance and to (at their absolute discretion) make to the said Richard Michael Boyle & Ellen Boyle further advances 60 that the whole sum to be so advanced shall not exceed £15,000 AND WHEREAS the said Alfred Abrahams and Emanual Abrahams have agreed to maké a present advance of £12,700h and to at \ their shsoiute discretion make such further advances as before providea . upon the exeoution by the said Thomas William Boyle & Richard Boyle Jr. . of this Mortgage." 7 These recitals are followed by a covenant by the defendant & his brother R Boyle Jr to pay on demand "the said principal eum of £12,700 also all ngeye which may now or at any time during the continuance of a B. "this security and at the time of euch demand be due to the said Mort- gagees in respect of principal moneys or further advances mentioned in this or any other securities which now are or may hereafter be held by the said Mortgagees collateral hereto all which further ad- vances shall include advances made to us the Mortgagors or the said Richard Michael Boyle and Ellen Boyle either prior to or subsequent to the date of these presents "suclazi StmsCrbieh she Mertgagees*ney> and "all further and other sum or sums of money which the Mort= gagore or the said Richard Michael Boyle and Ellen Boyle may at the time of demand made upon them by the Mortgagees owe or be indebted to the mortgagees for money paid by the Mortgagees to for og on account of the Mortgagore or the said Richard Michael Boyle or Ellen Boyle or for money lent and advanced by the Mortgagees to the Mortgagors" e« .« x XX K KX XX X KX XX &X KX KX KX KX KX KX KX and "all other sume of money which may be owing under these presente or for any cauee or on any account whatsoever". alto Thie inetrument, contained @ covenant by the mortgagors to spy pay insterest at the rate of £10-6- per cent (reducable to £&4/- per cent on punctual payment) on the principal moneys thereby secured with a préviso that in the event of interest not being paid on due date or within seven days thereafter "the said interest moneys shall dered become part of the principal moneys hereby recetrved & the mortgagors will pay interest thereon at the rate Vherein provided", There is no substantial difference between theee provisions & the cor- responding provisions contained in the mortgage under the Transfer of Land Act. 6. Gasvens The evidence;jin the gupreme flourt showed that nb interest, was ever paid by the defendant, and it appears from the particulars attached to the Statement of Claim that the unpaid interest was from time to time charged against the defendant and interest caloulated on the debit balance from time to time including the amount 60 char- ged in respect of unpaid interest. McMillan C.J. on this part of the case expressed the opinion that the anounts chargedA against the defendant in respect of un- paid interest were not further advances within the meaning of the instrument of mortgage and held that the defendant was liable on the security (which wae expressed to be a contanuing.seourity) for ad- vances up to £15000 and for whatever interest he had acmitted to pay In the Full court Burnside J held that the fact of carrying the amount of unpaid interest to the debit of capital had the effect of eatinguiehing it ae interest and that the amount so transferred must be taken for the purposes of the account as he thought it in 2a fact was; an advance by the mortgagee to pay interest. Northmore J. held that the limitation of the liability of the defendant must be treated as inclusive of capitalised interest. Draper J. in effect agreed with the opi ion expressed by Burnside J, In my opinion the decision of the learned Chief Justice on this point was correct. I share his difficulty in understanding how the defendant who has failed to pay interest and has allowed it to be added on to the principal money can escape his liability in respect Te of the amount of interest unpaid merely because the mortgage pro- vides that unpaid interest ehall become part of the principal moneys secured and the mortgagor shall be liable to pay interest thereon. The contention for the defendant amounts in effect to this - that deé fault by the mortgagor in payment of interest diminéa@hes the total amount which he can be called upon to pay under the security, for af he paid the interest at due dates he would be liable to pay the amount of moneys advanced not exceeding £15000 in addition to the interest already paid ~ but if he paid no interest he could not in any event be lajble to pay more than £15000 in all. This is trugly @ surprising result of a covenant intended to benefit the mortgagee by enabling him to capitalize interest unpaid at due date and intended also to penalize the mortgagor for making default in payment of interest, But apart from this consideration I think kt is cldar that the tranafer of an amount of unpaid interest to debit of capital account is in no proper sense of the word an advancebt that amount, to R.M. and Ellen Boyle and the limitation of liability to £15000 applied only to advances to them while the covenants for payment in the securities given extended to all advances made to the mortgagore(i.e. the defendant and R. Boyle Jr) and all other sums of money which might be owing by them for any cause or upon any ace count whatsoever. In my opinion the limitation of liability to £15000 does not include the amount represent®ing interext which has been oapitalisad but extends only to advances properly so calldd. T think the order that should have been made by the Supreme Court and should now be made by thie Court is that an account be taken of what is due by the defendant to the plaintiff for prinaipad and interest on the securities sued on, further consideration and eli questions of costa other than the costs of the appeal to the Supreme Court in Full Courgm and of thie appeal being reserved. The order will be prefaced with a declaration that the compound interest added to the principal by virtue of the instruments of mortgage ought net to be teeated ae advances fo RM. and Ellen Boyle within the meaning of the provigion limiting such advances to £15000, 'In my opinion any declaration as to the right of the defendant to obtain the eeouritier cdllateral or otherwise held by the plaintiff would be premature at the preeent stage of the proceedinges When the account has been taken and the amount of the defendmts liability has been ascertained it will be time enough to deal with other questions which may arise, Costs, The defendant ehould pay the coste of the appeal to the Full Court and of thie appeal. MIA MIA PASTORAL Cox. v aan . BOYL 3 see MR JUDGMEN JUSTICH Isaacs Miu Mia Pestoral Company. Judgment. nee Isaacs J. The case is somewhat complicated, end the issues need to be disentang~~ "Led. ia The claim was sbmpke enough. Qhe present appellants, as transferrees, from two persons named, Abra~ i : ? t -hems, mortgagees, sued Thoms William Boyle the respondgnt, upon s | covenant in €agh of two mortgages for £9,875/1/11 moneys advanced \ by the original mortgagees to Richard Michael Boyle snd Ellen Boyle,." the parents of the respondent. : a \ "The respondent plea@ed a defence and counter~claims In his defences 4 yw ~bility were inserted in the nortgages by mistake, the intention bef merely to mortgege the defendant's land for hig parents' debt, and Fd * to make himself personally lisble; (2) thst he was nota principal i acbtor in any way but a surety only, and, ac some of the securitics fa oneg held from the parents as principal debtors were partad with,the : value should de vllowed to him; (3) discharge by reason of time heving bee given to the principal debtor, the futher: (4) thet a st not more than condition of the mortgage was broken,nemely, t than £15,000, shoulé@ be e4 to the perents, and thet this wor et aYeleese, and, (5) fuilure of consideration to the extant of £12,700, agreei to be advanced to the parents and not advanced, t . . Lhe counteclain claimed alternatively the rights of e surety. inter slia joined issue as to the misteke, denied givig time, averre? hnowledge ond confirmation of any forbesrance, and alle- -ged thet the mortgages ware continuing securities, denied a breach of the condition a3 to £15,000, and said, if there were any excess the defendant knew snd consented. © . MeMillan ¢.J., tried the case without a jw He heard the oral tes- -timony of the Abrahams, of ths respondent, of his father, ond other . . . other . members of bis family, and of/ persons connected with the transactions in controversy. He found es facts:~ (1) The transfer of the mortgages to the appellant. (2) That the alleged mistake did not exist. {2) That whatever was done with respect to giving time was done with the consent of the respondent. He held:- That the respondent was lisble for £15,000 principal oastunlly advanced notwithstanding interest had conventionayly become principsi by virtue of th respondent. agreement with th Ano the le mie? Chief Jusbice ordered an account uhder the two nortgages,sdding » decleretion that @efendant on peyuent,is en- ~titled on poyment to transfer of securities ie reserved further considerstion ond gave liberty to spply. Ou the respondent's appeal to the Full Gourt of three jndgex,vorying™ views wera taken. On the question of mletake, two judges agreed vith "the Chief Justice, as to consent, two judges(not the seme two) agreed with the Chief Justice, and a11 agreed with His Honor that the present respondent was liable for the full wxmount of principal sdvanced up to £15,000, notwithstanding' some interest had, by agreenent, been cons «verted into principal. The Fail Court,lowever, unanimously, as I anderatena, held that the respondent was not a principal debter bat surety only, and was entit- ~led to be treated throughout as such end not as principal debtor. y . The/sltered the word "collateral" to "a11", and this raised e great doubt in the minds of the appellants' advisers,es to their position 4 \ with regard to any securities or the proceeds of securities seid to have been reslised or otherwise dealt with. For instence, Draper J., thought the liability wes reduced to a limit of £3,000, by the arrange "ment of March 1916, ani, further, reduced, by the realisation of securities ,to which the respondent would have otherwise been entitled on payment of his. indebtedness. On this appeal, al] these points were discugsed, and also another po arising as to the Stamp Act. It was contended for the respondents a thet the deals being stemped only up to £15,000, violated the Stamp Act, because, they snid, according to the appellants' casa, the atiount: secured was more. i) i It is therefore plain that the case is full of complicotions, } . ¥ f Bat some of them disappear at once. Thus, the contention es to mi stake is ¢isposed of by ths fact thet not only does the burden of establish-, | as ~ing it lie hesvily on the respondent, but so far fit rests on orsl ! testimony, the learned Chief Justice, who heerd fn@ saw the witnesses gave credence to the appellantb? witnesses, ond, as there. was abund- "ance of evidence the finding cannot be shaken. It 1s a case where it depends, not merely on inference from estsblished facts, but on the acceptance or rejection of ths testimony itself. It is not neces~ "sary to consider the position in this connection of the appellent,as @ bona fide purcheser and wwadetete transferree of the registered mortgages, it might be, that without restoration,or even with res~ ~toration to its position, the defence would be untenable in any cayev The instrument recites an application by the parents to the lenders for an advance of £12,700, and also further advances so as not to exceed in all £15,000, but there is no recital of any agreement to act on thet request. Then comes the recital of a request by the res= -pondent and his brother,Richard, to advance the money to the parents " go that the whole sum to be so advanced shall not exceed £15,000" "and the agressents of the lenders" upon the execution by the ssid" ' respondent and his brother "of this mortgage", then follows a re~ ~-cital by the obligors that in consideration of £12,700 "at our "requast™ now advanced to the parents and any further sums advanced to the parents "or to us the mortgagors", or the security thereof, or on the security of the hereinafter mentioned securities or obli- 4 j tf ~gations(which include a mortgage by the parents), the respondent and his brother mortgage wee their land and agree (1) to pay on demnélihe £12,700 and other moneys due &e; (2) to pay interest at the rate men- -tioned( I omit for the moment the important provision about capitali- «sation of interest), and then follow various other covenants. As to the question of forbearance or extension of time,towards the parents,the law is definitely settled (Iebert v National Bank,1918.4.C atp.908/909). But the evidence raises some interesting questions of fact, which,however, in the presence of the circumstance: that what- "ever was done, was done, with the consent of the respondent, become immaterial. The question of consent. stands in precisely the same position for appellate purposes as the question of mistake. That renders an gegouht necessary. And until that account is taken, all but one of the other questions raised are premature ~ some of them may be irrelevant. It is,however, importent to determine at once the question of the capitelisation of interest, ond its effect on the limit of the res~ ~pondent's liability. It arises on the proviso to the second covenant, which provides in the first place for simple interest. The proviso is in these terms:- " provided further that in the event of the interest moneys not being duly paid on the respective days appointed for payment thereof or " " " " "" within seven days thereof, as knxeknafiex hereinbefore provided the said interest moneys shall become part of the principal moneys | . { thereby secured, snd the mortgagor will pay interest thereon, at the rate firstly hereinbefore, provided such interest to be computed from : the days wherein such interest should heve been paid as aforesaid". THE contention of the respondent is, that, if he neglects to pay ine ~terest for seven days, it becomes conventionally principal, and 'stands in the same position as actual principal advanced, and as soon: x as the totel amount of "principal" actual and conventional reaches £15,000, it can never be worse for the mortgagor. Deley is then a benefit to him for interest accumlating, once it has rsised thes : ! principal to thangr sed limit, dies in birth. As Draper J., justly =; i says:~ " the importance of this question will arise when the egcoui, wR "are taken". But, it is necessary to determine it now. Fi I cannot egree with the view as presented. The limit of £15,000, is! } the limit of the lender's advance to the parents. The proviso re- |. -ferred to does not create a liability to be discharged by the pari -ents, but by the respondent and his brother, personelly, and by tii . y i not merely primarily ,vut,so fer as apperrs exclusively. \ The mortgage is intended to secure:~ (1) principsl moneys(first covenant) and (2) interest(second covenant). The "principel moncys"maxtuxkhexxmixances consist.) as stated in the first covensnt of:~ i (a) £12,700, (b) principal moneys on further edvances - the latter either being further advances /(1) " to us the mortgagors" or, (11) to the parents 6c. A be herefore the principal moneys secured by the mortgers not . v8 ay a confined to the moneys advenced to,or, owing by the parents. But the limit of £15,000, 86 expressed in the recital(the only place it appears) is confined to the advances to the perents. The second covenant begins thus:~ " PThet so long es any principe] moneys shall remsin secured "by these presents, we, the mortgagors, will psy interest "thereon &o". And after provisions, not unas ag to simple interest, comes' the proviso quoted. Assuming the 1 t of liability for principal moneys advanced to the parents to be £15,000, what is there to prevent the capitalised in- -terest, being by agreement, an additional amount of "the principal "moneys hereby secured", that is sn smount undertaken by the respon- -dent,personolly, in adéition to any principal owing by the parents? © Nothing so far as I can see. That wes his agreement ,nsmely, conven~ -tionally to treat overdue interest as an advance of principal to the respondent and hig brother, and there is no necessity to attri- ~bute to it, the quelity of self-destruction which the argwaent referred to demands. thet proviso, creztes 2 dictinet personel lisbility, arising from the personal failure, to. zerform the pri ry obligation of paying interest as ag nd is in a@@ition, to any other obligation to be Found in t 44 the account should be te zen on t Nn? ¥IA MIA PASTORAL COMPANY LIMITED v. BOYLE JULGM ERT HIGGINS J. This action is brought against T.W. Boylo on two mortgage covenants in respect cf advances to Rei. Boyle and Ellen hie wife. One covenany, thut in a mortyage made under the Tranefor of Land Act, ie made by TeW. Boyles and two of his brothere,and is expressed to be joint and severul; the cther covenant, that aa a mortgage made uhder the Land Act, is made by T.W. Boyle and cone of his brothers, and ia not expressed to be several as well as joint, but no cbjection has been taken, no application has been wade as to the non-joinder. The mortgages were transferred Cg aly Sintra to the plaintiff coupany on the 5th & 6th November 1918, and it is not contended that the plaintiff cannot sue the defendant on the covenants. The firet objection raised by the defendant is that tho j covenants wore inserted in the mortgages by mistake. The mistake as j stated in the particulars is that "the intention of a11 parties concerned was that the land should be mortgaged, but Was not to make the sons liable for the debt of thoir parents or any part thereof» Assuming, in ° favour of the defendant, that thie means mutual tistake of the mortgagee and the mortgagor, it merely weans that both parties misunderstood what i they signed, and meat to sign, and, at the most, there would be a claim for rectification; and there is no claim for rectification. It iw not even alleged that the words of the covenants were put in by mistake; : and a mere mistake as to the legal effect of words used is not such a nistake as Courts of Equity will rectify (see Powell v. Smith LeR. 14. Eq. 85; Willesford vy. Watson ibd. 577). in my opinion, this defen; eof Sern. vo Lang, ame i as to tistake is sonerrapre. Eut it is satisfactory to find that no b injustice is being done in fact; for the learned Judge who tried the | i case and saw the witnesses came to the conclusicn that thore was certain) no wistake on the part of the mortgagees or of thelr solicitor. They' wanted the personal security from the beginning empeoially of Tom Boyle ' L (the defendant) because he was the soundest" ..V\s {The point was strossed from the beginning that all were to be liable". This evidence was not: contradicted by the dcfendant, who merely says that he did not read ths documents cr ask any che Go explein. Besides, as pointed out by prother Iaaace, a covenant to pay is implied in every mortgage under tho Tranefer of Land Act, unless expressly 'iegatived; and the defendan ch would apparently have to prove am express agreement that such a covenanta was to be expressly negatived. fhis objection clearly rails. 'the next objectica relates to the amount for which the aefendant by hig covenanta made h: isalf pereonally liable. One mortgage - that under the Transfer of Lana Act - recites that Hem. Boyle % Bllen ms wite " had applied to the mortgagees to advance them £12,700 (and also at their absolute discrotion to take » .. further advances so that the totel sum ' to be advanced including the said sum of £12,700 shall not exceed #15,000.; that the mortgagess had agreed to do se oa the execution of this mortgage; and that the three brothers, in consideration of £12,700 60 lent "and also in consideration of any further sum or sums of money which the said niottgagees way at their absolute discretion lond and advance', »« » » » 80 _ that the sum hereby secured together with the present advance skall not exceed the sun of 415,000", covenant to pay on demand the said sum of £18,700, also all further and other sums of maney which the brothers nay at the time of the demand owe to the mortgagees for money paid by the mortgagees to or on account of the brothers or the parents or for money lent or advanced by the mortgagees . . + » » and all other sums of woney which may be owing under these presents for any cause or upon any account whatsoever. s The other mortgage doos not so specifically indicate a "st to the Liani WR etemecs en ; £15,000 limit to the liability of the brothers; but we are relieved of the necessity of deciding, as to elther mortgage, now far the very wide terms of this covenant, affect/tne recitals; for counsel for tae plaintiff admits, on behalf of hie client, that he wants the words of the recitals to be read into the covenants so as to limit the liability of the defendant to advances up to £15,000. But the defendant insists on a further linitation. There is a provision in the wortgages ( cl. 2) "that in the event of the interest moneys not being duly paid on the respective days appointed for payment thereof... .. . the said interest moneys shall become part of the principal moneys hereby secured and the mortgagors shall pay interest thereon . » . » « 3 and the defendant arguos that the interest on being so compounded with the principal should be troated as w w being money advanced within the meaning ofthe recitals. In ny opinion, this argument is wrong. Tae further advances referred to ink the recitals are advances wade at "gosolute discretion , do not include interest automatically added to the principal. They wean what wen call "new money", available for the businses - not existing burdens made more purdensoue py being added to the principal of the debt. In Webst ars dictionary, "advance" is defined as "a fowbdishing of something befors an equivalent is received (as money or goods) towards a capital or stock or on lean; the money or gooda so furnished; money or value supplied beforehand'. The argument was rejected in principle in the reoont case of Attorney-general v. South Wales Blectric Power Co. (1920 1 K.B. 558), Theres a company wiable to pay interost on debenture stock issued deferred Warrants in payment, which bore interest themselves; 'and the amount of these warrants was held to be neither "loan capital" nor borrowed money, go as to incur liability for stamp duty. As tho K. Re said (p. 555), "You do not borrow money by postponing the payment of your debt aad : agreeing to pay interest on at, In np opinion, the interest added to the principal for compounding is not to be treated as part of the £15,000 limit of Nadvances" . Them, by paragraph 10 A of the defence, the point is raised that the defmat plaintiff, as creditor, agreed with the principal debtors (ReMs. Boyle and his wife) to give them time, and that therefore the dtendant as surety is:discharged. I concur with the view of the law on this: subject, as expressed by the learaed Chief Justice of Western Australia. Even though the covenants of the defendant are direct covenants with the nortgagees, and though there is no suretyship mentionod in the mortgages, the plaintiff, having notice that the defendant was in fact mere surety for his parents, the ordinary rule ae to creditor giving time to the principal debtor is applicable. The rule leads to extraordinary resulis souietimes, but it is too well established to be ignored. The defendant Telies on a document dated the 1dth April 1996, signed by ReM, Boylo and his wife only. It was as follows -- "to Messre Alfred and Emanuel Abrahans. In consideration of your forbearing to ix diately call up the money owing by us the undersigned Richard Michael Boyle of Greenhills farmer and Ellen Boyle hie wife to you and secured inter alia by mortgage dated de the 5th Septexber 1515 regist ted No 7438/1912 [a mortgage given by the { principal debtors). And in further consideraticn of your agreeing to our! eeliing the Greenhills farm to our sons GeJ.Eoyle and R.Boyle we do hereby i undertake and agree to pay to you on denand all expenses heretogore or in the future incurred by you from tine to time in visiting and inspecting ; the property included in your uortgage including the wages or salary paid j by you to your representative Mr Bogg for all euch tine that he may be : engaged in visiting and inspecting the farm and during such time as he may | Yetiain at Greonhille and district for the purpose of checking and eneuring | the delivery of our crop to you including all hotel and travelling expemses anc the expenses inourred in the upkesy of the mobor used by Mr Eogg all . which moneys we authorize and direct you to retain out: of the first proces/, of the crop or sheep delivored by us to you Dated co. (signed) R.M.Boyle Ellen Boyle'. Now, on the face of the document, the only promised is a promise of the Boyles - in effect, a prowise to pay certain expenses connected with an inspection on the part of one Bogg. As Lord Hersohell said in Rouse v. Pradford Banking Go. (1894 Ae@. 586, 594), "ht is of course obvious that time is only given within the meaning of the ruls....if there is a binding agreewent arxived at for good consideration'. There ia no promise kere to give time, or any promise on the part of the mort- gagees; but there are two considerations expressed for/Boyles' promise. The second consideration is admittedly a past consideration - that the mortgagees had agreed to the sale of the Greenhills farm; the first con= sideration is forbearance to iumediately call up the money — forbézance which may be either in the past or in the future. There isf nothing in the document itesclf that necessarily binds the company to give a moment4 further delay. The document was draim up by the mortgagees after a conversation with the Boyles, was sent to the Boyles, and returned to the nortgagees signed by ResBoyle and wife. I very much doubt whether there is to be implied here any promise on the part of the mortgagecs to give time; wut even if there is, there ie abun¥ant ovidence to support the finding of the trial Judge that what was done was done with the consent of the surety, the defendant. Se Certain questions have been discussed as to the effect of our deciaion on the sufficiency of the stamp under the Western Australian law; but these questions do not really arise until the accounts have Cmte Merri my fafeaed 5 6 Cet been "agen and the amount comered by the ee ascertained.