The Law of Contracts

plaintiffs and Jennings had had together prior to the time when this guarantee was given; Allnut v. Ashenden, 5 M. & Gr. 392, 44 E. C. L. R.

"I hereby agree to be answerable to K. for the amount of five sacks of flour to be delivered to W. T., payable in one month;" Kay v. Greaves, 6 Bing. 276, 19 E. C. L. R.

"I hereby agree to be answerable for the payment of 507. for T. L., in case he does not pay for the gin, &c., he receives from you, and I will pay the amount;" Nicholson v. Paget, 1 Cr. & Mee. 48.

On the construction of guarantees, see further, Dimmock v. Sturla, 14 Mees. & Wels. 758.

Where the construction of the guarantee is determined, the surety is of course liable to its full extent, in case of the failure of the party to discharge his own liability, which liability, as we have already seen, continues, that of the guarantor being merely collateral; and if the creditor were to enter into any arrangement whereby he discharged the principal from his liability, he would, de facto, discharge the

surety from his also: equally so if he pro- [*367]

longed the surety's responsibility by giving time to the debtor; but this is again subject to the qualification of ordinary forbearance; Goring v. Edmonds, 6 Bing. 94, 19 E. C. L. R.; Muskett v. Rogers, 5 Bing. N. C. 728, 35 E. C. L. R.; any express stipulation to the contrary excepted; Holt v. Hadley, 2 Ad. & El. 758, 29 E. C. L. R. Express consent likewise on the part of the surety will, where it exists, enable the creditor to discharge the debtor; Cowper v. Smith, 4 M. & W. 519. These rules result from a principle thus explained by Pothier: "The extinction of the principal obligation necessarily induces that of the surety, it being of the nature of an accessory obliga

tion, that it cannot exist without its principal; therefore wherever the principal is discharged, in whatever manner it may be, not only by actual payment or a compensation, but also by a release, the surety is discharged likewise; for the essence of the obligation being that the surety is only obliged on behalf of the principal debtor, he, therefore, is no longer obliged when there is no longer any principal debtor for whom he is obliged. In like manner the surety is discharged by the novation of the debt; for he can no longer be bound for the first debt for which he was a surety, since it no longer subsists, having been extinguished by the novation; neither can he be bound for the new debt, into which the first has been converted, since this new debt was not the debt to which he acceded."

Should any condition, express or implied, that has been imposed upon the creditor by the guarantee be omitted by him, the surety will, of course, not be liable; Glynn v. Hertel, 8 Taunt. 208, 49 E. C. L. R. The engagement too would be vitiated and voided by any fraud. For by the concealing some material part, for instance, of the principal's original contract from the surety, the engagement would become so vitiated and avoided; Pidcock v. Bishop, 3 B. & C. 605, 10 E. C. L. R.

The principle to be drawn from the cases, as in that of *Stone v. Compton (5 Bing. N. C. 156, 35 E. [*368] C. L. R.), as laid down by Tindal, C. J., is this: "that, if with the knowledge or assent of the creditor any material part of the transaction between the creditor and his debtor is misrepresented to the surety, the misrepresentation being such that, but for the same having taken place, either the suretyship would not have been entered into at all, or being entered into, the extent of the surety's liability might

be thereby increased, the security so given is voidable at law on the ground of fraud."

The death of a testator would release the executor from being liable for advances after his decease, as operating as a revocation (Potts v. Ward, 1 Marsh. 366, 4 E. C. L. R.) So would any alterations which were made by creditor and principal of the terms of the original agreement without the express assent of the surety, however slightly the new terms may vary from the old ones in any material point, for the surety is bound only by the precise terms of the agreement he has guarantied. (Warre v. Calvert, 2 Nev. & Per. 126.) So, also, if the transactions are of a different nature to those which form the subject of the guarantee, as, for instance, the substitution of a loan for a sale of goods; see Evans v. Whyle, 5 Bing. 485, 15 E. C. L. R.; Glynn v. Hertel, 8 Taunt. 208, 4 E. C. L. R.; see also Whitcher v. Hall, 5 B. & C. 267, 11 E. C. L. R.

The surety, however, is nowise discharged by the debtor being trusted to a larger amount than specified in the guarantee.