shall arise upon the importation thereof, or that in default the consequences shall rest with the sellers," makes himself personally responsible to the vendee. Readhead et al. v. Cator, 1 Starkie's N. P. R. 14. An impediment arising from non-compliance with the Navigation Act, is an impediment within the terms of the guaranty. And such a guaranty is not within the statute of frauds, if the terms of the agreement can be collected from the written correspondence between the parties. Id. A. engages to guarantee the amount of goods supplied by B. to C., provided 18 months credit be given; if B. gives credit for 12 months only, he is not entitled, at the expiration of six months more, to call upon A. or his guaranty. But B. having, after the commencement of the action, delivered an invoice from which it appears that credit was given for 12 months only, is at liberty to show that this was a mistake, and that, in fact, 18 months credit was given. Bacon v. Chesney, 1 Starkic's N. P. R. 192. In cases of guaranty, it has been made a question, whether notice ought to be given to the guarantee of the advan VOL. II. ces made. and of the non-payment by the debtor. In Oxley v. Young, 2 H. Bl. G13, where the defendant, upon an undertaking of D. to indemnify him, guarantied to the plaintiff an order sent to him by A. for certain goods, and the plaintiff informed the defendant that the goods were preparing, but did not give him notice of the ac tual shipment, the court thought that the right to sue on the guaranty attached when the order was put in a train for execution, subject to its being actually executed; and that the notice of such intended execution was sufficient; and the court farther thought, that that right could not be devested even by a wilful neglect of the plaintiff, though, perhaps, he might be liable to an action on the case at the suit of the defendant, if any such neglect could be shown contrary to all good faith, and by which a loss had been incurred. In Peel v. Tutlock, 1 Bos. & Pull. 419. Chief Justice Eyre appears to have been of opinion, that at least in guaranties for god be haviour, notice of any embezzlement or fraud ought to be given within a reasonable time; but the case finally went off upon narrower ounds. In 21 1818 Lanusse V. Barker. 1818. Lanusse V. Russell v. Clarke, 7 Cranch, 69. 92. it was distinctly held by the court, that if the conBarker. tract in that case had been a guaranty, it would certainly have been the duty of the plaintiff to have given immediate notice to the defendant of the extent of his engagement. And the same doctrine was ascerted in the circuit court, in Cremer v. Higginson, already cited. Where there is a guaranty of advances or supplies, it is nccessary in the first instance to make a demand of payment from the original debtor, or at least to use reasonable diligence in endeavoring to make such a demand, and notice of nonpayment must be given in a reasonable time to the guarantee. This may be collected as the general result of the cases on this subject. But where an agent in England, for merchants the vendors of goods in Russia, who guarantees "that the shipment shall be in conformity with the revenue laws of Great Britain, so that no impediment shall arise upon the importation thereof, or that in default the consequence shall rest with the sellers," it was held that the agent made himself personally responsible to the vendes, and that in a declaration upon such a guarantee against the agent, it is unnecessary to allege any application for indemnity to the principals. Readhead et al. v.Cator, Starkie's N.P.R.14. And it is not necessary to sue the debtor, b fore the right attaches to sue on the guaranty. Bank of New-York v. Livingston, 2 Johns. Cas, 409. And where the guaranty is of a note or bill payable at future time, although it is not necessary to pursue the same strictness in order to charge a guarantee as to charge the drawer; yet a due demand and notice of nonpayment ought to be given to the drawer and guarantee; and if the necessary steps are not taken to obtain payment from the parties who are liable on the bill, and solvent, the guarantee is discharged. Phillips v. Astling, 2 Taun. 206. Warrington v. Furber, 8 East. 245. But it is a sufficient excuse for not making a demand, that the debtor cannot be found or that he is insolvent. Warrington v. Furber, 8 East, 245. Phillips v. Astling, 2 Taunt. 206. And if there be gross laches in securing the debt. (Duval v. Trask, 13 Mass. R. 154. The People v. Jansen, 7 Johns. R, 332, Hunt v. United States, 1 Gallis, 34.) or if the creditor undertake to do any thing whereby to lessen or postpone the responsibility of the debtor; (Commissioners of Berks v. Ross, Binney, 520,) or if the right of the parties be altered, as if any new debt have been incurred; or if the demand have been enlarged to the prejudice of the guarantee; (Peel v. Tatlock, 1 Bos. & Pul. 419, King v. Baldwin, 2Johns. Chan. R.554. Boultbee v. Stubbs. 18 Fes. 20.) or if the creditor give time to his debtor without the knowledge of the guarantee; (Skip v. Huey, 3 Alk. 91,6 Ves. 809. note a. Rees v. Berrington, 2 Ves. Jun. 540. Nisbit v. Smith, 2 Bro. Ch. Cas. 579. Moore v. Bowmaker, 6 Taunt. 379. S. C. 2 Marshall's R. 81.) or if upon a guaranty of a partnership debt, the partnership debt is discharged by carrying the proportions of each partner to his separate account without any notice to the guarantee; (Cremer v. Higgonson, MSS. above cited;) or if there be a fraudulent concealment to the injury of the guarantee; (Oxley v. Young, 2 H. Bl. 613, Semble, Eyre, C. J.) in all these cases the guarantee is 1818. Lanusse V: discharged. And it has been held in a recent case, that if the holder of a note is requested by the surety, (being one of Barker. the joint makers,) to proceed without delay and collect the moncy of the principal, who is solvent, and he omits to do it, until the principal becomes insolvent, the surety will be exonerated at law. (Paine v. Packard, 13 Johns. R. 174,) But this decision has been questioned by very high authority. (King v. Baldwin, 2 Johns. Chan. R. 563, 564.) Where there are several debts due, some of which are guartied and some not, and payments are made by one debtor, the same general rule applies in this as in other cases, that where the debtor makes no application of any payment, the creditor may apply it to any account he pleases. (Kir by v. Duke of Marlborough, 2 Maule & Selw. 18. Dawson v. Remnant, 6 Esp. R. 26. Field v. Holland, 6 Cranch. 8. Hutchinson v. Bell, 1 Taunt. 558. Sturges v. Robbins, 7 Mass. R. 301.) Pothier, in his treatise on obligations, has discussed with great learning and ingenuity the whole doctrine of suretyship and guarantv. Traite des 1818. Lanusse V. Obligations, part 2. ch. 6. sect. 1 to 8. Among other things; he remarks, that care should Barker, be taken not to take for a pro*mise to become surety, what 'one says or writes, unless there be a well-marked intention to do so. Therefore, he adds, if I wrote or said to you, that a man who asked you to lend you money, was solvent, this could not be taken for an agreement to become a surety for I might well have no other intention than to inform you of what I believed to be the case and not to bind myself. On this principle it was adjudged in a case reported in Papon X. 4. 12. that these words. in a letter to the keeper of a boarding-house, "A. B. intends to send his son to board with you. He is an honest man and will pay you well," did not include an obligation. On the same principle, if I accompany a person to a woolen-draper's, where he buys cloth, the draper ought not to conclude that I am security for him. The following distinctions and principles stated by this learned writer, seem worthy of notice, in reference to the subject of this note. 1. Where the surety has expressed the sum and cause for which he became surety, his obligation does not extend beyond the sum and cause expressed. As if one become bound for the principal debt, he will not be liable for interest. 2. On the other hand, when the words of the suretyship are general and indetermin ate, the surety is presumed to have bound himself for al the obligations of the debtor resulting from the contract to which he acceded; and, therefore, a surety in generel terms, is bound not only for the principal sum, but for interest; and not only for the interest due ex rei natura, but for that occasioned by the delay of the debtor. And this is conformable to the doctrine of the Roman law, 3. And, in general, however unlimited the suretyship may be, it does not extend to the penalties to which the debtor may be condemned. officio jndices propter suam contumaciam. 4. The obligation of suretyship is extinguished by an extinction of the princi. pal debt; by the creditor's dis abling himself by his own act from ceding his action against his principal debtor, which the surety has an interest in having assigned to him; by the creditor's accepting in payment property, the title to which afterwards proves to be invalid, at least if the p.incipal debtor in the mean time becomes insolvent. 5. And the principal debt may be extinguished not only by payment or a set off or release, but also by a novation of the debt, that is, by accepting a new obligation in discharge of the old one. 6. Pothier then puts the case, whether the surety be discharged by the creditor's granting to the debtor a delay for the payment, and agrees with Vinnius in holding the negative, for he says, the simple delay, not making the debt appear discharged, deprives the surety of no means of providing for his own safety and the surety cannot pretend that the delay prejudices him, since he himself derives an advantage from it. 7. According to the principles of the ancient civil law, the creditor could demand payment from the surety without first resorting for payment to the principal debtor. But Justinian altered that rule, and gave to the surety an exception or plea, which is called an exception of discussion, or of order, by which he may require the creditor to proceed in the first instance against the principal debtor. And this rule, with some exceptions, was adopted into the ancient jurisprudence of France. But at no time, either in the civil or French law, did the bringing of a suit by the creditor against his principal debtor discharge the surety, who, therefore, remained bound until payment. And the omission of the creditor to institute a suit of discussion against the principal debtor, notwithstanding a request of the surety, until after the debtor becomes insolvent, is not thought to discharge the surety. But if a surety had contracted only to pay what the creditor could not obtain from the principal debtor, an omission to sue for a long time, and until after an insolvency, may discharge the surety. 8. To entitle the surety, after pay. ment, to recover over against the principal debtor, it is necessary that the surety should not have neglected, by his own fault, to plead any proper plea in bar of the creditor; that the payment should have been valid, and should have discharged the principal debtor; and that the principal debtor should not have paid a second time by the fault of the surety See 1818. Lanuse Barker. |