Smith v Winter
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1838 |
| Date | 01 January 1838 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 1162
EXCH. OF PLEAS.
S. C. 6 Dowl. P. C. 386; 1 H. & H. 45; 7 L. J. Ex. 79. See Further, 4 M. & W. 454.
SMITH V. WINTER 3 M. & W. 309. [309] smith v. wintkr. Exch. of fleas. 1838.-Where an action on certain bills of exchange was brought against a defendant, who pleaded that he was liable, if at all, as a surety only : -Held, that he was not entitled to the inspection of a deed in the plaintiff's possession, by which it was suggested time had been given to the principal debtor, but to which deed the surety was no party. [S. C. 6 Dowl. P. C. 38G; 1 H. & H. 45; 7 I,. J. Ex. 79. See further, ; 4 M. & W. 454.] Wallinger moved for a rule calling on the plaintiff to shew cause why he or his attorney should not produce to the defendant, or his attorney, for the purpose of inspection, &c., a certain deed to which the plaintiff was an executing party, and which there were grounds for believing was in their possession. In one of the pleas to an action on certain bills of exchange, it was alleged that the defendant was liable, if at all, only aa surety, and that the plaintiff' had given time to the principal debtor without the consent of the defendant; the deed so giving time was the one required, [Parke, B. Is the defendant a party to the deed 1] Not an itmtrumentary party, but he is a party in interest. In Batmnan v. Phillips (4 Taunt. 157), the rule was granted on the express ground, as stated by Chambre, J., of the applicants being, though " not instrumentary parties, yet parties in interest." And surely a surety is an interested, though not an instrumentary party, to a deed which releases or gives time to his principal. [Gurriey, B. Is riot this a fishing attempt to get at evidence in the plaintiffs possession1?] Not more so than in every case where such an...
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