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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 CO 
 
 
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 A TREATISE 
 
 LAW OF GUAEANTIES 
 
 PRINCIPAL AND SURETY. 
 
 HENRY ANSELM DE COLYAR, 
 
 OF THE MIDDLE TEMPLE, ESQUIRE, BARRISTER AT LAW. 
 
 WITH NOTES TO AMERICAIST CASES, 
 
 AN APPENDIX CONTAINING THE ENGLISH AND AMERICAN 
 STATUTES OF FRAUDS AND PERJURIES. 
 
 BY 
 
 JAMES APPLETON MORGAN, 
 
 OF THE NEW YORK BAR. 
 
 NEW YORK: 
 BAKER, YOORHIS & CO., PUBLISHERS, 
 
 66 Nassau Street. 
 1875.
 
 1875- ^ 
 
 Entered, according to Act of Congress, in the year one thousand eight hundred and seventy-five, by 
 
 BAKER, VOORHIS & CO., 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 534 \^l 
 
 BAKER & GODWIN, PRINTERS, 
 
 NO. 25 PARK ROW, N. T.
 
 a. 
 
 OS 
 
 to 
 
 ^ 
 
 AMERICAN EDITOR'S PREFACE. 
 
 Tile treatise of Mr. De Coljar, of the Middle Temple, is 
 the latest, and, perhaps, the most satisfactory that has appeared 
 in England, npon the important snbjects of Guaranty and 
 Suretyship. Its many excellencies of system and treatment 
 seeming to justify the preparation of an American edi- 
 tion, the present editor has endeavored, by accompanying its 
 text with concurrent reference to American cases and law, 
 to enhance its practical value to the profession upon this side 
 of the Atlantic. Where the English rules laid down by Mr. 
 De Colyar are the same as those governing in this country, 
 the editor has contented himself with the citations alone, 
 deeming it useless to attempt to add to the author's concise 
 and most admirable treatment. Where the rules in the two 
 countries differ, or where a doubt has been expressed in this, 
 he has endeavored to briefly state the nature and grounds of 
 that difference or' doubt. 
 
 There is a wide dissimilarity between the American and 
 the English systems of legal text writing. While the plan 
 of the American writer has invariably been to consider in his 
 text only principles and rules — connecting them with the cases 
 in which they have been enunciated, by foot-note reference ; the 
 English method is to give, in the body of the text, a sort of 
 running history of the cases themselves, their dicta, rulings, 
 and progress — not unfrequently, even, of the argument, objec- 
 tions, and strategy of counsel — trusting to the detailed and dis- 
 cursive report itself to develop the principles and rules for 
 which he is seeking. Neither plan is without its excellencies, 
 nor quite without its faults. The American undoubtedly pro- 
 duces, from a literary point of view, the more rounded and 
 finished essay. But the student is, possibly, in danger of being 
 led along by the author's own reasoning or learning, or by his
 
 iv AMERICAN PREFACE. 
 
 own ideas as to what the law is or ought to be. The En- 
 glish method, though prolix and inartificial, is, at all events, 
 accurate and reliable — since the student is safe to find out 
 therefrom exactly what the law is, and what the precedents 
 W'hich courts are likely to follow. 
 
 In the following pages — as it seems to the editor — Mr. De 
 Colyar, by a skilful and judicious blending of the system prev- 
 alent in the two countries, has produced a work of exceptional 
 excellence and value to the Profession in both. He has not 
 scrupled, indeed, to discuss, or even to report at length, the 
 cases cited in his text ; but he has never done so without first 
 laying down, clearly and concisely, the general propositions or 
 principles under which they group themselves. And his whole 
 essay will be found to have been subjected to, and controlled 
 by, an original, clear, and logical division into Chapters and 
 Propositions, and these, again, into still minuter subdivisions 
 (as will be seen by the Analysis or Analytical Table of Contents 
 which is prefixed), which camiot fail to meet the appreciation 
 of the American student. Particular reference will be found to 
 have been made by the author to the Operation of the Statute 
 of Frauds upon Promises to Guarantee ; and — in the chapter 
 on the Memoranda in Writing to Satisfy the Statute — to the 
 Validity of Oral or Verbal Agreements to pay the debt of 
 another. The subjects (lately grown so important) of Con- 
 tinuing Guaranties and of Letters of Credit have also recieved 
 valuable discussion and treatment at his hands. 
 
 No pretence has been made, in this edition, of presenting all 
 the American cases upon the important and voluminous sub- 
 jects treated. Sucii an attempt would have only added to the 
 bulk of the work without proportionately increasing its value. 
 But the editor is confident that among those cited — some twelve 
 hundred in number — will be found included all leading and late 
 cases germane to the subject-matter of the text, contained in the 
 various volumes of Federal and State Reports. 
 
 References to the Statutes of Frauds and Perjuries of the 
 various States, when necessary in the progress of the annota- 
 tions, had been given and verified from other and similar 
 compilations to the present. When it was decided, however,
 
 AMERICAN PREFACE. V 
 
 to print the statutes themselves at the end of the vohirae, a 
 complete and separate examination of the latest revisions of 
 the laws of the different States was undertaken ; and it is be- 
 lieved that those printed in the Appendix, will be found, in every 
 case, to have been extracted from the latest and most reliable 
 sources' As it was found, too, that these revisions, in a majority 
 of the States, were very recent (almost all of them within the 
 last three or four years), it was thought best to print the etat- 
 nte of each entire ; and it is hoped that their value, and the 
 absence of any other so complete collection, will be considered 
 as warranting their insertion. 
 
 James Appleton Mokgan. 
 New York, February 1st, 1875.
 
 Preface to the English Edition. 
 
 As a branch of Mercantile Law, the subject of Guarantees 
 is the only important subject of our extensive Commercial Sys- 
 tem on which no generally-received Text-book now exists. 
 Every other head of Mercantile Law appears to have been made 
 the subject of a separate Treatise by one or more writers. 
 Thus, the Law of Bills of Exchange and Promissory Xotes has 
 been dealt with by Mr. Chitty, by Mr, Justice Byles, and by 
 Mr. Justice Story. The Law of Carriers is the subject of sev- 
 eral treatises, both English and American. The Law of Ship- 
 ping has not only been dealt with as a whole in more than one 
 work, but its numerous and important subdivisions — such as 
 Bills of Lading, Charter-Parti es, Insurance and General Aver- 
 age — have all been discussed in separate books and by different 
 authors. The Law of Fire Insurance and Life Insurance have 
 each also been made the subject of a separate Text-book by Mr. 
 Bunyon, and also by more than one American writer. The 
 relationship of Principal and Agent, too, has likewise furnished 
 a subject which has been discussed by learned authors, Ameri- 
 can as well as English ; notably by the celebrated American 
 jurist, Mr. Justice Story, Even the comparatively small sub- 
 ject of " Stoppage ill Transitu " has received attention in a 
 separate volume by Mr. Houston, devoted tp its consideration. 
 
 But it is not only as a portioii of our Mercantile Law that the 
 subject of Guarantees claims attention from English lawyers, 
 for g-uarantees are frequently given for the fidelity of persons 
 holding public offices or places of trust ; Govennnent servants 
 and those in the employment of public coi-porations being in 
 particular very often called on to furnish such guarantees. In- 
 deed, so common has the custom become, that, within the last
 
 viu ENGLISH PREFACE. 
 
 few years, public companies have been established, some of 
 wliich make it their exclusive business to give guarantees of the 
 nature just mentioned, while others, and some of the older 
 Insurance Offices, unite this business with a General Insurance 
 business. 
 
 Its importance in this double character, both of a branch of 
 Mercantile Law and also in connection with the holders of offices 
 and places of trust, makes the subject of Guarantees one of 
 great and daily practical interest. This alone would lead to the 
 expectation that it would frequently furnish the subject for 
 litigation ; and, added to this, the Courts of Equity have dealt 
 wuth it, as well as the Courts of Law, an.d have laid down cer- 
 tain peculiar doctrines with respect to it. Consequently, the 
 number of reported cases upon the subject is very large. It is 
 almost impossible to take up a volume of modem Law Reports 
 without finding in it some decision upon the subject of 
 Guarantees. 
 
 The following pages, it is hoped, contain all the decisions 
 upon the subject, and (as will be found on an examination of 
 the Index of Cases) they refer to no less than 900 cases,''^ the 
 majority of which are modem decisions. "When we add to 
 these the vast number of cases which are every year litigated in 
 our Law Courts, but which never find their way into the reports 
 at all ; and when to these again we add the still more numerous 
 class of instances which are never brought before the Courts at 
 all, but disposed of by the Profession in Chambers, it becomes 
 evident that the subject is one which must daily come before 
 the Profession, and upon which they wiU therefore often seek a 
 guide. 
 
 Under these circumstances it might have been expected that 
 there must exist some received modern Text-book — such, how- 
 ever, strangely enough, is not the case. 
 
 Many years ago, indeed, the treatises of Mr. Fell and of Mr. 
 Theobald appeared at nearly the same time, and probably then 
 exhausted the subject; but the time which has elapsed since 
 
 * It is right to mention tijat many of these cases bear upon the relationship 
 of principal and surety, whether such relationship be constftuted by guarantee 
 or by bill or note.
 
 ENGLISH PREFACE. IX 
 
 their publication has now rendered these works useless as prac- 
 tical Text-books. 
 
 These considerations will, it is hoped, furnish a sufficient 
 explanation for the appearance of the present volume. They 
 lead the author to think that there is room for a book on the 
 subject, and have induced him to write the following pages. 
 
 Under the New Supreme Court of Judicature Act, Law and* 
 and Equity will be administered by the same Court. The sub- 
 ject of Guarantees is one which this concurrent administration 
 of Law and Equity will greatly affect, especially as suits about 
 Guarantees will rarely be of such a character as to call for their 
 removal into the second, or what may be termed the Chancery, 
 division of the Court, since it appears that such division will 
 exclusively deal with matter purely of an administrative char- 
 acter. The author has, therefore, endeavored to produce a work 
 which will be of use to the practitioner under the new system. 
 He has accordingly cited all the cases bearing upon any given 
 part of his subject in their proper place, ignoring for the pur- 
 poses of arrangement any distinction based upon the circum- 
 stance of their being Common Law or Equity decisions. At 
 the same time he has, where such is the case, endeavored always 
 ,to point out any decisions which entirely or partly proceed upon 
 doctrines which, under the old system, were purely equitable 
 doctrines, but which now, under sect. 16 of " The Supreme 
 Court of Judicature Act, 1873," have become the Common 
 Law of the land. 
 
 For the work, as a whole, the author can only say that he 
 has endeavored to collect all the authorities on the subject 
 treated of in the present volume, and has spared neither time 
 nor trouble. 
 
 The author has great pleasure in acknowledging the able 
 assistance rendered to him by his learned friend Mr. George 
 Lewis, of the Western Circuit. The suggestions received by 
 the author from Mr. Lewis have been invaluable, and have ren- 
 dered the present treatise much more accurate and^ serviceable 
 than it otherwise would have been. 
 
 The author desires also to mention that he has derived con- 
 siderable assistance from a treatise on " The Validity of Verbal
 
 X ENGLISH PREFACE. 
 
 Agreements," by a learned American jurist, Mr. Tliroop. In 
 one part of his treatise Mr. Throop endeavors, with infinite in- 
 genuity, to arrange the American and English Cases on the Law 
 of Guarantees according to i^rineiple.* The author has not, how- 
 ever, followed Mr. Throop' s arrangement, but has adopted a 
 simpler one more suited to a work which, like the present, deals 
 •only, or at least principally, with the iLnglisJt Law of Guaran- 
 tees. He hopes, however, that it will be found that his attempt 
 to refer each decision on the English Law of Guarantees to 
 some principle has not been altogether unsuccessful. 
 
 The author has, it is needless to add, consulted numerous 
 works, both English and American, as the reader will himself 
 perceive in perusing the following pages. 
 
 In conclusion, the author can only ask the reader to regard 
 with indulgence the faults which doubtless will be found in the 
 present treatise, and to believe that they are not the result of 
 want of care or labor. 
 
 H. A. DE COLYAK. 
 1, Elm Coukt, Temple, 
 
 urn April, -iSli.
 
 TABLE OF COl^^TENTS. 
 
 CHAPTER 1. 
 
 INTRODUC T ORY 
 
 Definition of a Guaranty, 
 
 Parties to, ..... 
 
 Requisites of a Guaranty, 
 
 Mutual assent of two or more Parties, 
 
 Competency of Parties to contract. 
 
 Valuable consideration, if not under seal, . 
 Nature of Surety's Contract, 
 Evidence of Contract of Guaranty, 
 
 At Common Law, 
 
 By Statute, ..... 
 
 PAGE 
 1 
 
 1-3 
 
 3-37 
 
 3-9 
 
 9-20 
 
 20-37 
 
 37-40 
 
 40-49 
 
 40-41 
 
 41-49 
 
 CHAPTER IL 
 
 THE OPERATION OF THE STATUTE OF FRAUDS ON 
 PROMISES TO GUARANTEE. 
 
 SC- 
 
 SI 
 
 )2 
 
 Introductory remarks on 2d paragraph of 4tli section of Statute of 
 Frauds, . . . 
 
 Meaning and scope of 4tli section of Statute of Frauds with refer- 
 ence to Guaranties, ...... 
 
 A. " Wo action shall ie irottghV 
 
 Operation of 4th section as indicated by these words, 
 
 B. " On any special Promise.'''' 
 
 What kind of Promises indicated by these words of 4th section, 58 
 
 C. " To nns^cerfov the Deht, Default or Miscarriage of another^ 
 
 What Mnd of Liability indicated by these words of 4th section, GO 
 Promiser's liability must Ije collateral^ . . .Go 
 
 Rules for determining what are Promises " to answer for the 
 Debt," (tec, within 4th section, .... 6G- 
 
 Hule I. — Liability of a third Person must (1) Exist, or 
 
 (2) Be contemplated, ..... 67- 
 Rule IL — Promise must be made to the Creditor . 139- 
 
 51 
 
 -52 
 
 58 
 
 -GO 
 
 Go 
 -66 
 
 174 
 
 130 
 130
 
 .Ml TABLE OF CONTENTS. 
 
 C. " To answer for the Debt, Default or Miscarriage of anotJier.'''' — 
 
 continued. page 
 
 RuU III. — There must Ite an absence of all liability 
 * on the part of the Surety or his Pioperty, except such 
 
 as arises from his express promise, . . . 137-153 
 
 Rule IV. — The main object of the promise must be the 
 payment of a Debt or the i)erformance of a Duty by a 
 third Person, ..... 152-169 
 
 RnJe V. — The transaction must not amount to a Sale of 
 a Debt or a transfer of a Security by the Promisee to 
 the Promisor, ..... 1G9-174 
 
 CHAPTER HI. 
 
 WHAT IS A SUFFICIENT MEMORANDUM IN WRITING TO 
 SATISFY THE REQUIREMENTS OF THE 4tH SECTION 
 OF THE STATUTE OF FRAUDS. 
 
 Meaning of word "Agreement" used in 4th section of Statute of 
 
 Frauds, ........ 175 
 
 What must appear on face of Memorandum evidencing a Guar- 
 anty, 175-188 
 
 What is a sufficient signing of the Memorandum, . . 188-205 
 
 Who may sign, . . . . . . 188-203 
 
 The position and character of the Signature, . . . 203-205 
 
 At what time the Memorandum must be made, . . 206-207 
 
 Of the Stamj) necessary to the Memorandum, . . . 207-208 
 
 Eules of Pleading, ...... 208-210 
 
 CHAPTER IV. 
 
 THE LIABILITY OF THE SURETY. 
 
 General Rules for construction of Contracts, . . . 211-214 
 Doctrine as to admissibility of pai^ol evidence to exjilaiu ambigu- 
 ous Contract, ...... 2l4-2'15 
 
 I. When docs liability of Surety arise, . . . 215-225 
 
 II. IIow the Surety may be made liable, . . . 225-229 
 
 In an Action, . • . . . . . 226-228 
 
 Form of Action, .... 226 
 
 Who to be Parties, .... 226-228 
 
 As PlaintiflFs, .... 226-227 
 
 As Defendants, .... 228 
 
 By way of Set-off, ..... 228-329 
 
 III. The extent of the Surety's liability, .... 229-306 
 
 (1) As from what time a Guaranty operates and liability 
 
 begins, ...... 231-233 
 
 (3) To what things a Guaranty extends, . . 332-236
 
 TABLE OF CONTENTS. 
 
 XIU 
 
 III. The extent of the Surety's liability — continued. page 
 
 (3) For how long a time a Guaranty continues, . 236-277 
 
 A. Ordinary Guaranties in Trade, &c., . . 237-253 
 
 (a) Examples of continuing Guaranties, 238-248 
 
 (/3) " _ Guaranties not continuing, 249-253 
 
 B. Guaranties for Persons in Offices, &c., . 253-277 
 
 (a) After re-appointment to same Office, 254-263 
 
 (/3) " appointment to different Office, 263-268 
 
 (y) " change in duties of Office, . 268-277 
 
 (4) Surety's liability for his own Fraud, . . 277-280 
 
 (5) Change in Persons, ..... 280-303 
 
 A. To whom Guaranty given, . . 280-297 
 
 B. For whom Guaranty given, . . . 297-303 
 
 (6) Bankruptcy, * . . . . . 303-306 
 
 CHAPTER V. 
 
 THE RIGHTS OF' THE SURETY. 
 
 Introductory remarks, ...... 307 
 
 I. RigMs of the Surety against the Principal Debtor, . 307-323 
 
 A. Rights existing before any payment by the Surety, 307-309 
 
 B. Rigbts of Surety after payment made by him, and be- 
 
 fore repayment, in respect of repayments made, . 309-311 
 
 C. Rights of Surety to obtain payment, . . 311-323 
 
 (a) When right arises, .... 311-312 
 
 (/3) How right enforced, . . . 313-314 
 
 (y) What may be recovered, . . . 314-316 
 {6) Defenses by Principal Debtor when sued bv 
 
 Surety, . . . . ' 317-318 
 
 (f) Effect of Principal's Bankruptcy, . . 318-323 
 
 n. Surety^s Rights against Creditor, . . . 324-336 
 
 A. Before payment made by Surety, . . . 324-325 
 
 B. When called upon to pay, . . . 325-326 
 
 C. After payment, ..... 326-336 
 III. Rights of Surety against Cosureties, . . . 336-359 
 
 A. Right of Contribution, .... 336-355 
 ' 1. History of mght, 337-339 
 
 2. Principle it rests on, .... 339-340 
 
 3. When \t arises, .... 340-342 
 
 4. Against whom it exists, . . . 342-346 
 
 5. Mode of enforcing it, . . ' . 346-347 
 
 6. What is recoverable- .... 347-354 
 
 7. Hoio the right is lost, . . . 354-359 
 
 B. Right to benefit of all Securities held by a Cosurety, 355-359
 
 XI V TABLE OF CONTENTS. 
 
 CHAPTER VI. 
 
 THE BISCUAKGE OF THE SURETY. 
 
 PAGE 
 
 Introcluctoiy Remarks, ..... 3G0-3G1 
 
 I, Matters invalidating the Guaranty ff/; zniiw, . . 361-381 
 
 1. Fraud, 361-377 
 
 Antecedent to Execution of Guaranty', . . 362 
 
 Concealment, . . . 362-375 
 
 Misrepresentation, . . . 375-376 
 
 Svhseqiient to execution of Guaranty, . . 376-377 
 
 2. An alteration made in the instrument of Guaranty 
 
 after its execution \\ill sometimes discharge the 
 Surety, 377-380 
 
 3. Failure of the consideration for which the Guaranty 
 
 was given discharges the Surety, . . • 380-881 
 
 XL The Surety may be discharged, by a revocation of Contract 
 
 of Suretyship, ...... 381-425 
 
 1. Revocation by Agreement, .... 882-421 
 
 (a) By express Agreement, . . . 382-388 
 
 (A) Revocation of the old Agreement, . 383-385 
 
 (B) Substitution of new Agreement for old one 
 
 by mutual consent, . . 385-388 
 
 (/?) By implied Agreement, . . . 388-421 
 
 (A) Variation of terms of original Contract, 388-398 
 
 First — Variation of original Agreement 
 between Piincijml Debtor and Credit07\ 389-395 
 1st. Where variation material, . 390-393 
 2d. " not material, 392-395 
 
 Secondly — Variation of original Agree- 
 ment between Surety and Creditor, 395-398 
 
 (B) Surety may be discharged by Creditor tak- 
 
 ing additional Securitv from Princi2)al 
 Debtor. ; .' . . 398-399 
 
 (C) Suretv, as a rule, discharged by discharge 
 
 of Principal Debtor, . . 399-400 
 
 (D) Discharge of Cosurety, perhaps, under cer- 
 
 tain circumstances, may discharge Surety, 406-407 
 
 (E) Surety, as a rule, and subject to certain ex- 
 
 ceptions, is discharged by Creditor agree- 
 ing to give time to the Principal Debtor, 407-420 
 
 (F) Surety may ])e discharged by Creditor 
 
 agreeing witli Principal Debtor to give 
 
 time to Surety himself, . . 421 
 
 2. Revocation by Death, * . . . . 421-125
 
 TABLE OF CONTENTS. XV 
 
 III. The fulfilment of object, which Guaranty was given to secure, page 
 
 completely discharges Surety, . . . 425-433 
 
 1. Payment by Principal Debtor, . . . •435-431 
 
 a. Simple Payments, . . . • 435-43G 
 
 What amounts to a Payment, . , 426 
 
 b. Payment under Legal Process^, . . 427 
 
 c. Appropriation of Payments, . , . 437-431 
 
 General Principles and Roman Law, . 437-439 
 
 Instances where Doctrine applies to discharge 
 
 Surety, ..... 439-430 
 
 Instances where it does not discharge Surety, 430 
 
 2. Surety may be discharged by a Set-off existing be- 
 
 tween the Principal Debtor and the Creditor, . 431-433 
 
 IV. The Surety is discharged where a loss has occurred through 
 
 the negligence of the Creditor, . . . 432-443 
 
 1. Laches of the Creditor, .... 433-438 
 
 3. Loss of Securities given for the Guaranteed Debt, 438-443 
 V. The opei'ation<of the Statute of Limitations upon the liability 
 
 of the Surety, ...... 443-446 
 
 APPENDIX. 
 
 The English and American Statutes " Of Frauds and Perjuries," 449 
 
 Index, . . ... . . . . 507
 
 TABLE OF AMERICAN CASES CITED. 
 
 Abbott, Fewlass i\ 
 
 
 361 
 
 Ames, Aldrich r. 
 
 
 58, 
 
 130 
 
 Able, Payne v. 
 
 
 311 
 
 V. Foster, 
 
 
 79 
 
 ,210 
 
 Adams, Bourgeat v. 
 
 230 
 
 ,335 
 
 Phillips 11. 
 
 
 
 319 
 
 Brown v. 
 
 
 20 
 
 Amicable Ins. Co. v. Sedgwick, 
 
 270 
 
 Fellam v. 
 
 
 391 
 
 Amidon, Hunt ». 
 
 
 
 309 
 
 V. Ives, 
 
 
 403 
 
 Amos V. Ashley, 
 
 
 
 185 
 
 t>. Jones, 
 
 
 3 
 
 Anderson v. Davis, 
 
 23 
 
 105 
 
 386 
 
 Krutz V. 
 
 
 34 
 
 p. Harold, 
 
 
 
 207 
 
 Lowrey v. 
 
 
 4 
 
 • Smith V. 
 
 839 
 
 345 
 
 ,347 
 
 V. McMillan, 
 
 
 193 
 
 Unger v. 
 
 
 
 V. 
 
 Ware v. 
 
 
 91 
 
 Andre r. Rodman, 
 
 
 
 105 
 
 Whituiore ». 
 
 
 202 
 
 Andrew v. Bradley, 
 
 
 
 253 
 
 V. Way, 
 
 
 421 
 
 Andrews ». Planters' Bank, 
 
 
 201 
 
 Adkinsou v. Barfield, 
 
 
 172 
 
 Andrus, Mercier ». 
 
 
 
 17-2 
 
 Adventure, The, 
 
 
 19 
 
 Angier, Britton v. 
 
 
 23,2 
 
 5.67 
 
 ^tna Life Ins. Co., Hough v 
 
 .254 
 
 341 
 
 Annett v. Crawford Co. 
 
 
 
 254 
 
 Agawam Bank v. Strever, 
 
 
 238 
 
 Antonio v. CHssey, 
 
 
 
 06 
 
 x\gnew V. Merritt, 
 
 
 417 
 
 Arbnckle v. Hawkes, 
 
 
 
 66 
 
 Aiken, Matthews ». 
 
 
 339 
 
 Armitage v. Pulver, 
 
 
 341, 
 
 343 
 
 Ainslee r. Wilson, 
 
 
 309 
 
 Armour, Craddock v. 
 
 
 
 307 
 
 Albany Ins. Co. «. Devendorf, 
 
 408 
 
 Armsby, Wilde v. 
 
 
 
 378 
 
 Albany &c. R. R. Co., Wood v. 
 
 189 
 
 Armstrong v. Flora, 
 
 
 21, 
 
 105 
 
 Albee, Soule v. 
 
 
 130 
 
 V. Toler, 
 
 
 
 21 
 
 Buck «. 
 
 
 21 
 
 Arnold, Cummiugs o. 
 
 
 
 75 
 
 Alden r. Clark, ^ 
 
 312,417 
 
 Menefee v. 
 
 
 
 313 
 
 Aldrich's Admrs. v. Hapgood, 
 
 356 
 
 Stackpole v. 
 
 
 
 189 
 
 Aldrich v. Ames, 
 
 58 
 
 130 
 
 v. Stedman, 
 
 
 
 79 
 
 V. Jewell, 
 
 
 67 
 
 V. Stephenson, 
 
 
 
 203 
 
 Aldridge v. Turner, 
 
 
 22 
 
 Ashfield, Lippincott v. 
 
 
 
 83 
 
 Alexaiider v. Pierce, 
 
 
 13 
 
 Ashford v. Robinson, 
 
 
 
 180 
 
 Alford V. Baxter, 
 
 
 406 
 
 Ashley, Amos v. 
 
 
 
 185 
 
 Alger V. Scoville, 79 
 
 130 
 
 139 
 
 Ashtou V Bayard, 
 
 23 
 
 ,25, 
 
 238 
 
 Allen, Busbee v. 
 
 
 115 
 
 Athol, &c. Machine Co. 
 
 V. Fullei 
 
 •, 18 
 
 V. Gavin, 
 
 
 9 
 
 Atkins, Leighton». 304,321 
 
 ,322 
 
 ,351 
 
 Goodman », 
 
 
 254 
 
 Atkinson, Rodgers v. 
 
 
 74, 
 
 175 
 
 Kay V. 
 
 
 3,4 
 
 Sylverstein v 
 
 
 
 202 
 
 V. Pike, 
 
 
 4 
 
 Aucoin V. Guillot, 
 
 
 
 254 
 
 V. Pryor, 
 
 
 58 
 
 August V. Seeskind, 
 
 
 
 204 
 
 «. Rightmere, 
 
 
 383 
 
 Austin, Wright v. 
 
 
 
 326 
 
 Sand ford v. 
 
 
 4 
 
 Ayer, Brown t. 
 
 
 
 399 
 
 «. Scarf, 67, 
 
 115 
 
 127 
 
 V. Hawkins, 
 
 
 
 428 
 
 Taylor v. 
 
 
 420 
 
 
 
 
 
 V Thompson, 
 
 
 130 
 
 Bacon t. Chesney, 
 
 
 
 445 
 
 Alio way. Bank head v. 
 
 380 
 
 370 
 
 '''. Hutch ings, 
 
 
 
 202 
 
 Allsbury, United States v. 
 
 
 314 
 
 Jewett V. 
 
 
 
 338 
 
 Allwin V. Garberick, 71 
 
 139 
 
 210 
 
 Bacot, Doughty ». 
 
 
 215, 
 
 383 
 
 Althouse V. Ramsey, 
 
 
 105 
 
 Badgett, Kilbin v. 
 
 
 
 11 
 
 American Exchange Bank, < 
 
 -og- 
 
 
 Bagott '■. Mullen, 
 
 
 345, 
 
 342 
 
 gill V. 
 
 
 417 
 
 Bailey, Clove v. 
 
 
 
 351
 
 XVlll 
 
 AMERICAN CASES CITED. 
 
 uailcy v. Frf^eman, 22 
 
 r, Lnrcbar, 40 
 
 Mulligan v. 370 
 
 i,_ Onrdcn, 207 
 
 r. Shauner, 13 
 
 Bainbridge. United States v. 17 
 
 Baird r. Rice, 408 
 
 Baker r. Bennett, 102 
 
 r. Briggs, 108, 37G 
 
 Currier v. 347 
 
 Lamb v. 211 
 
 V. Martin, 235, 316 
 
 Balcombe, Kingsley v. 58, 137, 139 
 Baldwin, King\-. 308, 324, 408. 411 
 
 TreMe ». 130 
 
 • V. Richardson, 203 
 
 Baltimore v. Baltimore R. R. Co. 307 
 Bandy. Blager v. 408 
 
 Scott w. , 201 
 
 Bangs V. Strong, 312, 398, 419 
 
 Bank r. Woodward, 408 
 
 Bunk of Alexandria, Page's 
 
 Admrs. w. 215 
 
 Bank of Brighton v Smith, 343 
 Bank of Commerce, Selden v. 201 
 Bank of Steubenville v. Lavitt, 44:"> 
 Bankhead v. Alloway, 366, ^70 
 
 Banks, Davis v. 23, 25, 67 
 
 Stovallv. 314 
 
 Barbae v. Pitlman, 412 
 
 Baiber v. Bucklin, 109, 130 
 
 Barbour, Pbares v. 326 
 
 Barfield. Adkiiison «. 172 
 
 Barhydt v. Ellis, 308, 411, 413, 433 
 23, 25, 67 
 385 
 23, 207 
 9, 445 
 402 
 347 
 204 
 
 Barker v. Bradley, 
 
 r. Scuddcr, 
 
 Parker v. 
 
 Storrs V. 
 
 Smith V. 
 
 Barlow v. Disbert, 
 Barnard r. Heydrick, 
 
 V. Lapeer, &c.. Plank 
 
 Road Co. 202 
 
 Sherman v. 73 
 
 Barnes v. Crandall, 407, 432 
 
 Hotchkiss®. 238 
 
 Barney v. Dewey, 862 
 
 Foster v. 4 
 
 Barnum v. Childs, 22 
 
 Barr, Eleirs of, Elam ». 254 
 
 BaiTdtt, Lapham v. 185 
 
 V. Russell, 202 
 
 Barrow v Shields, 406 
 
 Bashford r. Shaw, 4 
 
 Bassford v. Pierson, 21 
 
 Batcheldor, Reed v. 17 
 Bates, Cain ?'. 411 
 Leonard v. 21, 880 
 
 Puckett?). 115 
 
 Baum ?'. Dubois, 191 
 
 Baxter, Alford ». 406 
 
 Hayes v. 203 
 
 Bayard, Ash ton v. 23, 25, 238 
 
 Bayley v. Clark, 384 
 
 Beach, Wood v. 185 
 
 Beall, Blackburn v. 398 
 
 Beaman v. Russell, 58 
 
 Bean v. Bean, 363 
 
 V. Ma3on, 21 
 
 V. Burbank. 20 
 
 «. Valle, ■ 180 
 
 T. Wells, 370 
 
 Beardslee, Buckley v. 180 
 
 Beardslev, Doe v. 22 
 
 Beardslev's Ex'rs. ■». Root, 309 
 
 Beatty, Union Bank v. 233, 254 
 Beauchamp,*]\Iouton v. 330, 230, 232 
 
 Beavan, Wilson v. 23, 25, 67, 71 
 
 Beazley, Welford v. 206 
 
 Heecher, Esdalman v. 25 
 
 Beekman, Hemsen v. 217, 411, 413 
 
 Beesley v. Hamilton, 378 
 
 BelU. Bruen, 211 
 
 — v. Faber, 202 
 
 — V. Kellar, 4 
 Beit, McClune v. 340, 
 
 341, 347, 356, 408 
 Benedict, Gutta Percha Co. v. 253 
 
 V. Sherill, 
 Benjamin v. Hillard, 
 Bennett, Baker v. 
 
 V. Bucbannan, 
 
 r. Dowling, 
 
 Eld red v. 
 
 v. Judson, 
 
 Rent V. Ilartsborn, 
 
 r. Cobb, 
 
 Benton, B'gelow v. 
 
 Packer v. 
 
 Berkowitz, Hendries. 
 Berthold v. Bertbold, 
 Besshears v. Rowe, 
 Betting, Tucker v. 
 Beverkys v. Holmes, 
 lUbb, Ellis V. 
 Bickford v. Gibbs, 
 Bigelow V. Benton, 
 
 Cahil ». 
 
 Dorman v. 
 
 238 
 
 7, 40, 433 
 
 102 
 
 309 
 
 335, 316 
 
 445 
 
 369 
 
 24 
 
 193 
 
 40 
 
 71, 73, 210 
 
 203 
 
 347 
 
 23, 25, 99, 139 
 
 251 
 
 30 
 
 408 
 
 3, 23, 34 
 
 40 
 
 67, 115 
 
 180 
 
 First Baplist Church v. 193
 
 AMERICAN CASES CITED. 
 
 XIX 
 
 ■Billings V. Sprague, 5, 328 
 
 Binsse, Getty v. 5 
 
 V. Wood, 5 
 
 Bisco, Burnett v. 20 
 
 Bishop Bond «. 840 
 Bishop Hill Colony, Busbnell v. 6 
 
 Black, Quick v. 308 
 
 Blackburn v. Beall, 399 
 
 Blackmore, King v. 225, 401 
 Black River Bank v. Page, 218, 411 
 
 Blair, Fanners' Bank v. 400 
 
 Blake v. Parlin, 23 
 
 Blalock V. Peake, 328 
 
 Blanchard, Dexter t. 101 
 
 Man V. 43 
 
 Thompson v. 89 
 
 Blaza V. Bundv, 408 
 
 Bleeker «. Hyde, 234 
 
 Block V. Maxwell, 2o4 
 
 Blodgett, Gannett v. 312 
 
 Blood V. Goodrich, 74, 175 
 
 Bloomer, Bloss v. 21 
 
 Blos3 V. Bloomer 21 
 
 Blount, Simpson v. 411 
 Board of Supervisors, People v. 223 
 
 Board man v. Paige, 351 
 
 V. Davidson, 204 
 
 Boazman, Callahan v. 428 
 
 Bod well, Home v. 408 
 
 Boehne v. Mu':phy,. 238 
 
 Bohlens, MuUer «. 159 
 
 Bond V. Bishop, 340 
 
 Hodgkins v. 74 
 
 Mayhew o. 336 
 
 Bonney v. Seeley, 31 G 
 
 Booker v. Tally, 66 
 
 Boone v. Hall, 402 
 
 Boorst, Herrick v. 218, 412 
 
 Bordelon v. Weymouth, 409, 413 
 
 Bosley. Colville v. 21 
 
 Bossiere, Kennedy o. 412, 437 
 
 Bostick, Kyle v. 321, 322 
 
 Bostwick, Camp v. 347, 355 
 
 People V. 223, 343 
 
 Botts V. Cozine, 189 
 
 Bouchaud v. Dias, S44 
 
 Boughton, Case v. 22, 380 
 
 J^ourgeat v. Adams, 230, 330 
 
 Bovard, Simpson v. 336, 343 
 
 Bowden, Johnson 0. 209 
 
 Bovren v. Darbev, 407 
 
 r. Haskins, 348, 351 
 
 Bowery S.ivings Bank v. Clinton, 
 
 321, 322 
 
 Bowles, Smith v. 193, 210 
 
 Bowman v. Card, 
 
 V. Cecil Bank, 
 
 V. McCurd, 
 
 Bowne, Coles v. 
 Box, Lemmon «. 
 Boyce v. Owen, 
 Boyd V. McDonough, 
 
 Southard v. 
 
 V. Titzer, 
 
 Boykin v. Dohlonde, 
 
 218, 219 
 203 
 416 
 193, 204 
 12 
 79 
 339, 340 
 21 
 412 
 67,116,127 
 
 Boyle's Heirs, Conley's Heits «. 309 
 Boynton, Freeman v. 25, 445 
 
 Nelson v. 79, 139 
 
 Bragg, Oliver v. 346 
 
 Andrew v. 253 
 
 Bradley, Barker v. 23, 25, 67 
 
 Chase ». 213 
 
 Cook V. 20 
 
 Dobbin v. 211 
 
 «. Richardson, 159 
 
 Sinclair I'. 67,210 
 
 Bradner, Chemung &c. Bank «, 203 
 Brady v. Peeper, 389 
 
 V. Sackrider, 115 
 
 Bramble v. Poultney, 215 
 
 V. Spiller, 159 
 
 Brandley. Dobbin ©. 40 
 
 Breed i'. Hillhouse, 4 
 
 Breese v. Schuler, 326 
 
 Brennan v Ford, 209 
 
 Bressler r. Pendell, 116 
 
 Breward, Long v. 412 
 
 Brewster v. Silence, 185 
 
 Bridges v. Phillips, 400 
 
 ■». Winters, 410 
 
 Bridgman, Hunt b. 498 
 
 Briggs, Baker o. 108, 378 
 
 Gleason v. 105 
 
 HubbMrd v. 369, 370 
 
 Whipple V. 312, 
 
 Brigham, Kepp v. 
 Bright '■. Macknight, 
 Brink, Sears i;. 
 Britton j;. Dierker, 
 
 V. Angier, 
 
 Brockett v Martin, 
 Brook V. Dent, 
 Brooke, Wynn v. 
 Brookline v. Shumway, 
 Brooks V. Robinson, 
 Brorwn r. Adams, 
 
 V. Ayer, 
 
 r. Brown, 
 
 Buckheud v. 
 
 Curtis «. 
 
 23. 
 
 '276 
 
 4 
 
 91 
 
 378 
 
 25,67 
 
 7 
 
 ISO 
 
 315 
 
 408 
 
 356 
 
 20 
 
 899 
 
 23, 25, 67 
 
 238 
 
 79, 105, 386
 
 AMERICAN CASES CITED. 
 
 Brown, Dillon r. 
 
 r. Dysinji^tT, 
 
 Goldsmith v. 
 
 Hubby V. 
 
 V. Kidd, 
 
 — — Kulin V. 
 
 Lonsdale v. 
 
 Pike V. 
 
 r. United States, 
 
 "Wilson V. 
 
 ' V. Wright, 
 
 Browne ?-. Lattimore, 
 Bruen, Bell v. 
 Bryan r. Hunt, 
 Buchannau, Bennett v. 
 V. Paddleford, 
 
 Buck V. Albee, 
 Buckiilew V. Smith, 
 Buckhead v. Brown, 
 Buckley v. Beardslee, 
 Bucklin, Barber v. 
 Budd, Sbinn v. 
 Buliiilo & Erie Ry. Howe v. 
 Buibrd v. Caldwell, 
 Bullen, Glass r. 
 Bullock, Crane v. 
 
 203 
 
 425 
 
 411 
 
 235, 316 
 
 312 
 
 05, 100 
 
 2(5 
 
 58, 130 
 
 19 
 
 345, 346 
 
 108, 386 
 31, 255, 324 
 
 211 
 
 74, 175 
 
 309 
 
 183, 
 
 184, 210 
 
 21 
 
 410 
 
 238 
 
 180 
 
 109, 130 
 346 
 309 
 369 
 345 
 
 91 
 
 Campbell r. Knapp, 
 Logan, 
 
 Bull's Head Bank, McMillan v. 2, 219 
 
 BuUus, Mauran v. 238 
 
 Bunn, Mead v. 370 
 
 Buntinfj, Draughan v. ■ 105 
 
 Buibank, Bean v. 20 
 
 Burdell, Dodge v. 20 
 
 Burlingame, Crist v. 3, 8, 33 
 
 Burnett v. Bisco, 20 
 
 Bu-h, Dempsey v. 347 
 
 Scott «. 200 
 
 Buf-hee v. Allen, 115 
 Bushfield, Fulwood v. 317, 321, 322 
 Bush n ell i\ Bishop Hill Colony, 6 
 
 Butler r. Wright, 312,313 
 
 Butterfield v. Hemsley, 201 
 
 Byrnes, Hutchins v. 191 
 
 Cabot V. Haskins, 25 
 
 Cadwallader v. West, 13 
 
 Cady V. Potter, 204 
 
 Cahil ®. Bigelow, 67,115 
 
 Cain V. Bates, 411 
 
 Caldwell, Buford v. 369 
 
 V. Wintworth, 429 
 
 Callahan v. Boazman, 428 
 
 Callaway v. Heam, 380 
 
 Calvin, Hill v. 3 
 
 Camp V. Bostwick, 347, 355 
 
 23,34 
 
 204 
 
 :\IcKee V. 349 
 
 Moore v. ' 328, 446 
 
 Stewart v. 79, 183, 184, 255 
 
 Underwood r. 180 
 
 Cannon, Gary v. 309 
 
 Capertown r. Gray, 27, 115 
 
 Card, Bowman v. 218, 219 
 
 Carh art, Freeman ». 203 
 
 Carlies v. Estes, 421 
 
 Carothers v. Connolly, 23, 25, 67, 71, 
 
 139 
 Carpenter, Ilubbell v. 
 
 Reynolds v. 
 
 Wallis V. 
 
 Carret, Murray v. 
 Carter, Halliburton v. 
 
 • Hardy v. 
 
 V. Jones, 
 
 Murphy's Adm's v. 
 
 V. Pomeroy, 
 
 Cart Wright v. Green, 
 
 V. Wilmerding, 165, 166, 
 
 167 
 Carville v. Crane, 
 Case V. Boughton, 
 
 V. Luce, 
 
 Marsh v. 
 
 Weed V. 
 
 Cecil Bank, Bowman v. 
 Central Savings Bank v. Shine, 
 Chamberlin v. Preble, 
 Chambers, Haddens v. 
 
 V. Bobbins, 
 
 Champlin v. Parish, 
 Champreys v. Lyle, 
 Chandler v. Davidson, 
 Chapin, Hunt i;. 
 
 V. Lapham, 
 
 V. Merrill, 
 
 Chaplin, Roche v. 
 Chapman, Chilton v. 
 
 Daring v. 
 
 Peabody v. 
 
 Peacock v. 
 
 Charlton, Lenz v. 
 Charman r. McLean, 
 Chase v. Bradley, 
 
 V. Day, 
 
 V. Hathorn, 
 
 V. Hinman, 
 
 Chasten, Wood v. 
 Cheeney v. Cook, 
 Cheeseman, Perrine v. 
 
 398, 419 
 
 180 
 
 382 
 
 21 
 
 330 
 
 321,322 
 
 2,307 
 
 225 
 
 202 
 
 165, 167 
 
 58 
 
 22, 380 
 
 238 
 
 365 
 
 366, 370 
 202 
 238 
 312 
 317 
 100 
 
 189,204 
 317 
 139 
 202 
 101 
 58 
 101 
 345 
 21 
 341 
 40T 
 276 
 201 
 213 
 
 115,128 
 370 
 309 
 308 
 185 
 • 21
 
 AMERIOAISr CASES CITED. 
 
 XXI 
 
 Chelmsford Co. v. Demares, 31, 255. 
 
 335 
 Chemung «&c. Bank v. Bradner, 303 
 Cherry, Freeman v. 347 
 
 Cheshire, Leary v. -350 
 
 Chesney, Bacon v. 445 
 
 Chickasan v. Pitcher, 407 
 
 Chickering, Dedham Bank v. 31 
 
 Chilcote V. Kile, 310 
 
 Childs, Barnum v. 22 
 
 Chilton ■)}. Chapman, 
 Chisholm, Pitman «. 
 Choppin V. Gobbold, 
 Christie, Dorlon v. 
 Cincinnati Ins. Co. r. 
 Clafiin, Cockroft v. 
 
 V. Cogan, 
 
 V. Ostrom, 
 
 Clapp X. Cothron, 
 
 V. Seibrecht, 
 
 Clark, AT den v. 
 
 Bayley v. 
 
 r. Dutcher, 
 
 V. Hampton, 
 
 Howard v. 
 
 Hunter v. 
 
 Kingston &c. 
 
 1,34, 
 
 345 
 
 410 
 
 108 
 
 411,430 
 
 Harrison, 33 
 
 301 
 
 311 
 
 01 
 
 98 
 
 535 
 
 313,419 
 
 384, 385 
 
 445 
 
 30, 383 
 
 407 
 
 411 
 
 Co. V. 31, 
 
 355, 334 
 
 410 
 
 19 
 
 309 
 
 4 
 
 36 
 
 31,23 
 
 311, 313 
 
 Russell V. 374 
 
 109 
 
 Ins. 
 
 Menifee v. 
 
 V. Morey, * 
 
 V. Pinney, 
 
 V. Remington 
 
 V. Russell, 
 
 V. Small, 
 
 Clarke, Russell d. 
 
 Clark's Executors, 
 
 Clason, Sanders v. 
 
 Classen, Menitt «. 
 
 Clay V. Walton, 
 
 Clayton v. Hardy, 
 
 Cleaves v. Foss, 
 
 Cleveland R. R. Co., Connecticut 
 
 Ins. Co. ». 
 Cleveland &c. R. R. Co., Zabris- 
 
 kie V. 
 Click «. McAfee, 
 Clinton, Bowery Savings Bank «. 331, 
 
 333 
 Clipperger v. Creps, 
 Clissey, Antonio v. 
 Clouser, Hart v. 
 Clove V. Bailey, 
 Clampit, Stanwood v 
 Clymer v. De Young, 
 •Coates, Lindsay v. 
 
 139 
 205 
 137 
 303 
 193 
 
 185 
 
 317 
 105 
 
 408 
 66 
 378 
 254 
 345 
 83, 109, 139 
 493 
 
 Cobb, Bent v. 193 
 
 Cobb v. Page, 23 
 
 Cochran, Deal v. 410 
 
 Cochrane v. Garretson, 18 
 
 Cockroft V. Claflin, 301 
 
 Coffin, May v. 445 
 
 Springs. 21 
 
 Coflfman, Morgan v. 407 
 
 Cogan, Claflin v. 311 
 
 Coggeshall v. Ruggles, 336, 386 
 
 Coggill V. American Exchange 
 
 Bank, 417 
 
 Coke V. Smith, 408 
 
 Colburn, Long v. 189 
 
 Cole ». Sackett, 280 
 
 Coleman v. Garrigues, 189 
 
 Coles V. Bowne, 193, 204 
 
 Collyer v. Higgins, 31, 255, 334 
 
 Collaway ». Heam, 21 
 
 Collins, Corkins v. 79 
 
 Colton V. Dunham, 158 
 
 Colville V. Bosley, 21 
 
 Comber, Gale v. 159 
 
 Commercial Bank v. New Orleans, 
 211,213 
 
 V. Warren, 203 
 
 Commonwealth v. Miller, 108, 375 
 
 Richards ». 217, 
 
 408,411,413,437 
 Compton, Henry v. 356 
 
 Stone «. 361,371 
 
 Comstock, Kimble v. 43 
 
 Congden, Pitts v. 398, 419 
 
 CoQgdon V. Reed, 238 
 
 (Jonkey v. Hopkins, 23, 34, 138 
 
 Conkling, McNaughton v. 46, 238, 370 
 Conley's Heirs v. Boyle's Heirs, 309 
 Connecticut &c. Ins. Co. v. Cleve- 
 land R. R. Co. 185 
 Conner v. Williams, 109, 139 
 Connerat v. Goldsmith, 101 
 Connolly, Carothers v. 23, 25, 67, 71, 
 
 139 
 
 V. Kettlewell, 67, 115 
 
 Consociated Society v. Staples, 83 
 Constant v. Matteson, 309, 311, 346 
 Conway i). Odbert, 314 
 
 Cook V. Bradley, 20 
 
 Cheeney v. 185 
 
 Miller w. 185,191 
 
 Cooke, Hargrave v. 331, 428 
 
 Coons, Norton v. . 345 
 
 Cooper V. Dedrick, 185 
 
 Franklin Bank v. 361, 370 
 
 Hopkins v. 369
 
 XXll 
 
 AMERICAN CASES CITED. 
 
 Corbett r, Gilbert, 
 
 Cobin r. McCIicsney, 
 
 Corcoran, Wood v. 
 
 Core 'P. Wilson, 
 
 Corkins v. Collins, 
 
 Corning v. Elliot, 
 
 Cornwall, Mortimer v. 
 
 Corwine, United States v. 
 
 Cory V. Leonard, * 
 
 Cosliow, Howard v. 
 
 Coster's Executors, Union Bank v. 4, 
 
 Cothron, Clapp r. 
 Couch V. INIeeker, 
 Coulter. Schmidt i). 
 Covin, Young r. 
 Cowdrey, Goelet v. 
 Cowing, Woodward v. 
 Coyle V. Fowler, 
 Cozine, Botts v. 
 Craddock v. Armour, 
 Craft V. Isham, 
 Crafts V. Mott, 
 Craig V. Ward, 
 Crane v. Bullock, 
 
 Corville v. 
 
 Ilayden v. 
 
 Humphreys v. 
 
 Jewett V. 
 
 Crandidl, Barnes v. 
 Crawford Co., Annett r. 
 Crawley, Hanson v. 
 Creamer v. Higginson, 
 Creditors. Spiller r. 
 Creed v. Scruggs, 
 Creigh v. Hedrick, 
 Cremer v. Higginson, 
 Crep«, Clippenger v. 
 Creyon, Leland v. 
 Crist V. Biirlingame, 
 Cromwell, McClusky v. 
 Crosby, Giles v. 
 Crosley r. Jeroloman, 
 Cross «. Richard? on, 
 Crowell, Doughaday v. 
 Crummey, Norris v. 
 Culvereton, Parker v. 
 Cummiugs v. Arnold, 
 
 V. Hackley, 
 
 Kimble ». 30 
 
 Cunningham v. Jone?, 
 
 Patterson i). 
 
 State V, 
 
 Currier v. Baker, 
 
 
 370 
 
 Currier, Klein v. 
 
 
 34 
 
 
 83 
 
 Curry, People v. 
 
 
 225 
 
 105, 
 
 380 
 
 Curtis V. Brown, 
 
 79, 
 
 105, 386 
 
 
 9 
 
 Gushing, McCollum r. 
 
 
 238 
 
 
 79 
 
 Cui^hraan, Hall v. 
 
 
 £56 
 
 
 446 
 
 Cutler V. Emery, 
 
 
 .':45 
 
 
 189 
 
 V. Hinton, 
 
 
 115 
 
 
 397 
 
 Singley v. 
 
 
 84 
 
 
 400 
 
 Cutts, Hamilton v. 
 
 
 312 
 
 25 
 ank 
 
 ,U0 
 V. 4, 
 
 Read v. 
 
 
 4 
 
 183, 
 
 188 
 
 Daigle, Successioa of, 
 
 
 385 
 
 
 98 
 
 Dair v. United States, 
 
 
 223, 303 
 
 
 58 
 
 Dale V. Warren, 
 
 
 346 
 
 
 342 
 
 Dana v. Hancock, 
 
 
 74 
 
 
 362 
 
 Whittier v. 
 
 
 74, 175 
 
 
 193 
 
 Dann, Smith r. 
 
 
 4, an 
 
 
 21 
 
 Spooner v. 
 
 
 79 
 
 22 
 
 ,380 
 
 Darbey, Bowen v. 
 
 
 407 
 
 
 189 
 
 Daring i\ Chapman, 
 
 
 21 
 
 
 307 
 
 Darlington v. McCann, 
 
 
 115 
 
 
 4 
 
 Darragb, Tenth National Bank r. 2VS 
 
 321 
 
 ,322 
 
 Darwin, Peake v. 
 
 
 2, 307 
 
 
 309 
 
 V. Reppy, 
 
 
 385 
 
 
 91 
 
 Davidson, Boardman v 
 
 
 204 
 
 
 58 
 
 Chandler v. 
 
 
 139 
 
 
 288 
 
 Davis, Anderson v. 
 
 23, 
 
 105, 386 
 
 
 408 
 
 V. Banks, 
 
 
 23, 25, 67 
 
 
 314 
 
 ». Graham, 
 
 
 410 
 
 407 
 
 432 
 
 Hayes v. 
 
 
 356 
 
 
 254 
 
 V. Hooker, 
 
 
 343 
 
 378 
 
 •^97 
 
 V. Hoops, 
 
 
 356 
 
 202 
 
 211 
 
 Miles 1). 
 
 
 225 
 
 
 345 
 
 Peers v. 
 
 
 175 
 
 
 347 
 
 V. Richardson, 
 
 
 202 
 
 5 
 
 ,314 
 
 V. Shi els, 
 
 
 193, 203 
 
 
 3 
 
 V. Staats, 
 
 
 103, 33ti 
 
 
 408 
 
 Tay lor v. 
 
 
 411 
 
 
 115 
 
 Davis Sewing Machine 
 
 Company 
 
 3, 
 
 8,33 
 
 V. Lawrence, 
 
 
 193 
 
 211 
 
 ,213 
 
 Day, Chase v. 
 
 
 115, 128 
 
 
 389 
 
 Floyd V. 
 
 
 309 
 
 67 
 
 ,210 
 
 Holman v. 
 
 
 348 
 
 
 79 
 
 Deal V. Cochran, 
 
 
 410 
 
 
 191 
 
 Dean, Morton v. 
 
 
 193 
 
 
 445 
 
 Dearborn «. Taylor, 
 
 
 345 
 
 
 4 
 
 Dedham Bank v. Chickerir 
 
 'g, 21 
 
 
 175 
 
 Dedrick, Cooper v. 
 
 
 185 
 
 
 215 
 
 Delphy, Thomas I'. 23, 
 
 183 
 
 ,184,180, 
 
 313, 
 
 313, 
 
 
 
 210 
 
 
 316 
 
 Demarest, Chelmsford Co. r . 
 
 31, 255, 
 
 
 4 
 
 
 
 325 
 
 
 50 
 
 Dempsey v. Bush, 
 
 
 347 
 
 
 254 
 
 Dennett, Ingalls v. 
 
 
 309 
 
 
 347 
 
 Denny v. Lyon, 
 
 
 345
 
 AMERICAN CASES CITED. 
 
 XXlU 
 
 Denny v. Manhattan Co. 
 
 
 213 
 
 State V. 
 
 
 254 
 
 Stone V. 
 
 
 369 
 
 Dent, Brook v. 
 
 
 180 
 
 Derby. Griffin v. 
 
 
 89 
 
 Derrickson, Dickerson v. 
 
 218, 
 
 219 
 
 Despard, King v. 
 
 
 79 
 
 Denill v. Maitel, 
 
 
 407 
 
 Devendorf, Albany Ins. Co. 
 
 V. 
 
 408 
 
 Dewey, Barney v. 
 
 
 363 
 
 Dexter v. Blanchard, 
 
 
 101 
 
 De Young. Clymer v. 83, 
 
 109, 
 
 139 
 
 Dins, Bouchaud v. 
 
 
 344 
 
 Dick, Gee v. 
 
 
 o 
 
 Dickerson v. Derrickson, 
 
 218, 
 
 219 
 
 Nutting V. 
 
 
 21 
 
 Placer County v. 
 
 
 255 
 
 *Tnomer v. 
 
 385, 
 
 412 
 
 Dickinson, Schlessinger v. 
 
 
 6 
 
 Eiefendorf, EUwood v. 
 
 235, 
 
 316, 
 
 
 398, 
 
 419 
 
 Dierker, Britton v. 
 
 
 378 
 
 Diggs, Gordon c. 
 
 
 225 
 
 Dillon V. Brown, 
 
 
 203 
 
 St. Albans Bank o. 
 
 384, 
 
 385 
 
 Dinsmore, Thatcher r. 
 
 
 309 
 
 Disbert, Barlow v. 
 
 
 347 
 
 Dittman, Hearing v. 69, 71, 
 
 139, 
 
 
 
 210 
 
 Dixon r. Fraser, 
 
 
 115 
 
 Doane v. New Orleans Telegraph 
 
 Co. 
 
 
 225 
 
 Dobbin v. Brandley, 
 
 40 
 
 211 
 
 Dodge r. Burdell, 
 
 
 20 
 
 V. Dunham, 
 
 
 351 
 
 Greene v. 
 
 
 4 
 
 V. Hopkins, 
 
 
 191 
 
 Doe V. Beardsley, 
 
 
 22 
 
 Dohloude, Boykiu v. G7 
 
 ,116 
 
 127 
 
 Dole V. Moulton, 
 
 
 276 
 
 V. Warren, 
 
 322 
 
 851 
 
 Dominick v. Michael, 
 
 
 17 
 
 Doolittle B. Naylor, 
 
 
 136 
 
 Doremus, Post v. 
 
 
 278 
 
 Dorlon i\ Christie, 
 
 411 
 
 420 
 
 Dorman v. Bigelow, 
 
 
 180 
 
 Doty V. Ellsbree, 
 
 
 7 
 
 V. Wilder, 
 
 
 190 
 
 Doughaday ». Crowell, 
 
 
 191 
 
 Douglitv V. llacot, 
 
 215 
 
 383 
 
 Douglass, Banner v. 
 
 
 312 
 
 V. Howlund, 4 
 
 , 185 
 
 314 
 
 V. Jones, 
 
 
 89 
 
 V. Reynolds, 
 
 4 
 
 ,211 
 
 Dowling, Bennett v. 
 
 235 
 
 , 316 
 
 Downer v. Miller, 
 Downey v. Hurcbman, 
 Downs, Erwin v. 
 Dows V. Morewood, 
 Doyle V. White, 
 Drake v. Flewellen, 
 
 Taylor n. 
 
 Drakeley, Monson v. 
 
 Draper v. Trescott, 
 Draughan i\ Bunting, 
 Draw, Lowry v. 
 Drinker, Stern v. 
 Druuimond v. Prestman, 
 Dubois, Baum v. 
 Duffy V. Wausch, 
 Duke V. McGregory, 
 Dunham, Colton v. 
 
 Dodge t\ 
 
 Dunlap V. Gordon, 
 Dunlop, Hebbard v. 
 
 11. Thorne, 
 
 Hebborn v. 
 
 Dunn, Lud v. 
 
 — ~ V. Sparks, 
 
 V. West, 
 
 Dunning v. Roberts, 
 Durin, Price ». 
 Durrive, Le Doux v. 
 Dutch, Whitney v. 
 Dutcher, Clark v. 
 D'Wolf, QuintardiJ. 
 
 Rabaud V. 
 
 Dyer-, Waggener r. 
 Dykes, Pilgrim v. 
 Dysinger, Bro'wn v. 
 
 846 
 
 67, 101, 127 
 
 417 
 
 429 
 
 66 
 
 101 
 
 115 
 
 336, 337, 346, 
 
 357, 383 
 
 408, 409 
 
 105 
 
 203 
 
 79 
 
 211 
 
 191 
 
 183, 184, 210 
 
 25 
 
 158 
 
 351 
 
 253 
 
 9 
 
 172 
 
 445 
 
 384, 385 
 
 321, 346, 351 
 
 58 
 
 205 
 
 193 
 
 347 
 
 17, 67, 139 
 
 445 
 
 105, 386 
 
 23,91 
 
 344 
 
 408 
 
 425 
 
 Eakin ■p. Fenton, 
 
 East River Bank v. Kennedy, 
 
 Easter v. Farmers' Nat. Bank, 
 Eastman, Jnslyn v. 
 
 Norton v. 
 
 Eberley, Hamaker v. 23, 25, 26 
 
 E:kiord's Ex'rs v. Mason, 417 
 
 36 
 398, 
 419 
 201 
 
 385 
 3 
 
 Eddelen v. Gough, 
 Eddy V. Herrin, 
 
 V. Roberts, 
 
 Edgerton, Yale i. 
 Edmond's Appeal, 
 Egbert, Jiarriman v. 
 El a, Websler v. 
 Elam V. Heirs of Barr, 
 Elder v. Wai field, 
 Eldred v. Bennett, 
 
 180 
 
 13 
 
 25, 67, 105 
 
 183, 184 
 
 204 
 
 446 
 
 187 
 
 254 
 
 115 
 
 445
 
 XXIV 
 
 AMERICAN CASES CITED. 
 
 EUcuwood V. Fiilt.s 
 
 23,25,139 
 
 EUing V. Viinderlyn, 
 
 
 20 
 
 Elliot, Corning r. 
 
 
 446 
 
 r. Gicsc, 
 
 
 91, 180 
 
 Hoskinson r. 
 
 
 21 '3 
 
 Perkins v. 
 
 
 18 
 
 Ellis, Barhydt r. 308,411 
 
 413,432 
 
 T. Bibb, 
 
 
 408 
 
 V. Ilnni, 
 
 
 321,322 
 
 V. McCormick, 
 
 
 397, 425 
 
 Ellslircc, Doty v. 
 
 
 . 7 
 
 Elhvood V. Diei'endorf, 
 
 23.-,, 
 
 316,898. 
 4ut 
 
 Elmore, Sailly v. 
 
 
 408 
 
 Elwell, Lexington, &c. 
 
 R. R 
 
 . Co. ». 
 
 
 31, 
 
 255, 325 
 
 Emerson r. Slater, 
 
 
 137,139 
 
 Emery, Cutter v. 
 
 
 345 
 
 r. Richardson, 
 
 
 400 
 
 V. Tichout, 
 
 
 431 
 
 Emoiy, Reed v. 
 
 
 317 
 
 Engksby, Merrill v. 
 
 
 89 
 
 Epler, Hoover v. 
 
 
 345 
 
 Erwin v. Downs, 
 
 
 417 
 
 Esdelman v. Beecher, 
 
 
 25 
 
 Estes, Carlies v. 
 
 
 421 
 
 Evans v. Kueeland, 
 
 
 361 
 
 Reed v. 
 
 
 180 
 
 Sidwell V. 
 
 
 26 
 
 Ewing r. Logan, 
 
 
 9 
 
 -v. Tees, 
 
 
 189 
 
 Faber, Bell v. 
 
 
 202 
 
 Faler v. Jordan, 
 
 
 202 
 
 Falker, Marsh v. 
 
 
 366, ?70 
 
 Falley v. Giles, 
 
 
 211 
 
 Farley v Cleveland, 
 
 
 75,89 
 
 Farmer's Bank v. Blair, 
 
 
 400 
 
 V. Kercheval 
 
 4 
 
 Farmer's Nat. Bank, Easter v. 201 
 
 Uhler V. 23. 25 
 
 Fambam, Putney v. 23, 25, 07, 139 
 Farwell v. Lowther, 187 
 
 Fasnacht v. Winkleman, 397 
 
 Fay V. Hall, 
 Fearne, Shirley v. 
 Fellows V. Prentiss, 
 Fenlon, Haus v. 
 Fenton, Eakin v. 
 Fetrow v. Wiseman, 
 Fewlass v. Abbott, 
 Field r. Ilamilton, 
 Field en v. Lahens, 
 Finch, Smith «. 
 Fincher, Jones v. 
 
 4 
 
 203 
 
 238 
 
 21 
 
 36 
 
 16, 17, 432 
 
 , S61 
 
 3i8 
 
 202, 422 
 
 25 
 
 345 
 
 Finney, Ford v. 109, 139 
 
 ' Shaw V. 192 
 
 First Baptist Church v. Bigelow, 193 
 First National Bank, Steel v. 209 
 
 Fish, Reed v. 238 
 
 V. Thomas, 79 
 
 Fisher. Keave v. 236 
 
 Fisk V. McGregory, 130 
 
 Flagler, Sanborn v. 33, 205 
 
 Flanders, Tibbeta r. 127 
 
 Flenmi v. \^'hitmore, 130 
 
 Fletcher v. Grover, 355 
 
 Jackson v. 215 
 
 N. Y. State Bank v. 309 
 
 Flewellen, Drake r. ' 101 
 
 Flora, Armstrong r. 105 
 
 Florida R. R. Co., Vose ». 389 
 
 Floyd v. Day, ' 309 
 
 Fogleman. Schoflfner v. 324 
 
 Foos. Goetz v. 210 
 
 Forbes. Walker v. 3. 4 
 
 Ford, Breunan r. 209 
 
 t. Finney, 109, 139 
 
 v. Keith, 316 
 
 Foss, Cleaves v. 193 
 
 Foster, Ames v. 79, 210 
 
 V Harney, 4 
 
 Haven v. 445 
 
 Jackson v. 175 
 
 Wilson V. 202 
 
 Fowler. Coyle ». 32, 380 
 
 Fox V. Parker, 398, 419 
 
 Frank v. Miller, 209 
 Franklin Bank v. Cooper, 361, 370 
 
 Franklin, Osgood v. 21 
 
 Tallman v. 193 
 
 Eraser, Dixon v. 115 
 
 Freeman, Bailey «. 22 
 
 t'. Boynton, 25, 445 
 
 t\ Carhart, 203 
 
 V. Cherry, 347 
 
 French v. Marsh, 33 
 
 Sweetser®. 201,203 
 
 ?'. Thompson, 136 
 
 Tuckerman v. 3 
 
 Frentress «. Markle, 
 
 Fiyer, McClurg v. 
 
 Fullam V. Adams, 
 
 Fuller, Athol «&c. Machine Co 
 
 FuUerton, Galbraith v. 
 
 Fulmer ». Seitz, 
 
 Fults, Ellenwood v. 
 
 Fulwood «. Bushfield, 
 
 Furbish v. Goodaow, 
 
 322, 846, 351 
 4 
 39i 
 . 18 
 410 
 378 
 33, 25, 139 
 317, 321, 
 322 
 139
 
 AMERICAN CASES CITED. 
 
 XXV 
 
 Gahn v Niemcewicz, 
 
 398.419 
 
 Goldsmith Counerat v. 
 
 
 101 
 
 Gaillard, State v. 
 
 21, 380 
 
 Goodman v. Allen, 
 
 
 254 
 
 Gails V. Osceola, 
 
 118, 386 
 
 r. Gilbert, 
 
 
 58 
 
 Gage i\ Wilcox, 
 
 58 
 
 Goodnow, Furbish v. 
 
 
 139 
 
 Galbraitb v. Fullerton, 
 
 410 
 
 Goodrich, Blood v. 
 
 ^4, 
 
 175 
 
 Lloyd V. 
 
 345, 346 
 
 Tom V. 
 
 
 309 
 
 Shupe V. 
 
 27, 75, 89 
 
 Wyman t\ 
 
 23, 25, 67 
 
 139 
 
 Gale V. Coinler, 
 
 159 
 
 Goodwin, Keith v. 
 
 
 358 
 
 V. Nixon, 
 
 207 
 
 Gordon v. Diggs, 
 
 
 225 
 
 Gallagher's Ex'rs v. Roberts, 108,386 | 
 
 Dunlap V. 
 
 
 253 
 
 ■Gannett r. Blodgett, 
 
 312 
 
 Gore, Merrill v. 
 
 33, 213, 
 
 215 
 
 irarberick, Allwin v. 
 
 71,139,210 
 
 Goss V. Gibson, 
 
 322, 346, 
 
 351 
 
 Gard v. Stevens, 
 
 238 
 
 Gosserand v. Lacour, 
 
 346, 
 
 432 
 
 Gardiner, Phelan v. 
 
 13 
 
 Gough, Edelin v. 
 
 
 180 
 
 Gardner v. Hurbeck, 
 
 384, 385 
 
 Gould, Washburn v. 
 
 
 213 
 
 V. Hopkins, 
 
 136 
 
 Grace, Lipscomb v. 
 
 
 402 
 
 Garey v. Hignutt, 
 
 406 
 
 Graham, Davis v. 
 
 
 410 
 
 Garner v. Hudgins, 
 
 99, 238 
 
 V. Hollinger, 
 
 
 369 
 
 Garnett i-. Roper, 
 
 321,323 
 
 V. O'Neil, 
 
 
 S4 
 
 Garr v. Martin, 
 
 309, 312 
 
 Grant v. Ludlow, 
 
 
 345 
 
 Garrettson. Cochrane v. 
 
 18 
 
 1'. Smith, 
 
 
 397 
 
 Garrigues, Coleman v. 
 
 189 
 
 Weed V. 
 
 2 
 
 307 
 
 ^.arj V. Cannon, 
 
 309 
 
 Graves, Remsen v. 
 
 411, 
 
 417 
 
 Gates V. McKee, 
 
 211 
 
 V. Tucker, 
 
 
 361 
 
 Gavin, Allen v. 
 
 9 
 
 Gray, Capertown v. 
 
 07 
 
 115 
 
 Gay V. Mott, 
 
 380 
 
 V. Handkinson, 
 
 21, 
 
 380 
 
 Geagan, Manley v. 
 
 210 
 
 Wyman v. 
 
 
 180 
 
 Getty T. Binsse, 
 
 5, 422 
 
 Greeley v. Stilson, 
 
 
 209 
 
 Gibbs, Bickford v. 
 
 3, 23, 34 
 
 Green, Cartwright v. 
 
 165 
 
 167 
 
 Gibson, Goss v. 
 
 351 
 
 Parham «. 
 
 
 347 
 
 Mattock V. 
 
 21, 380 
 
 Voiles 1). 
 
 
 378 
 
 V. Warden, 
 
 203 
 
 Willie V. 
 
 
 309 
 
 Giese, Elliot v. 
 
 91, 180 
 
 Greene v. Dodge, 
 
 
 4 
 
 Gilbert, Corbett v. 
 
 370 
 
 Greenland, Jones v. 
 
 
 67 
 
 Goodman v. 
 
 58 
 
 Greenley, Olmstead v. 
 
 
 136 
 
 States. 
 
 254 
 
 Greenwood, Rntledge 
 
 V. 
 
 213 
 
 Giles V. Crosby, 
 
 389 
 
 Gregory v. Gleed, 
 
 28, 
 
 215 
 
 Falley ®. 
 
 211 
 
 Griffin «. Derby, 
 
 
 89 
 
 Gillespie, Sanders v. 
 
 23 
 
 V. Rembert, 
 
 
 33 
 
 Gillett, Maliory v. 
 
 79 
 
 Trevitt v. 
 
 
 209 
 
 Gillighan v. Boardman, 
 
 4, 91, 180 
 
 Grisvvold, Jackson v. 
 
 
 314 
 
 Ginrich, Ulery v. 
 
 202 
 
 Groat V. Townshend, 
 
 
 22 
 
 Glasgow, Musgrove v. 
 
 108, 386 
 
 G rover, Fletcher o. 
 
 
 355 
 
 Glass V. Bullen, 
 
 347, 348 
 
 Gulich V. 
 
 
 189 
 
 Gleason ». Briggs, 
 
 105 
 
 Guillot, Aucoin v. 
 
 
 254 
 
 Morse v. 
 
 29G 
 
 Gulick V. Grover, 
 
 
 189 
 
 Gleed, Gregory v. 
 
 24, 215 
 
 Gutta Peroha Co. v. Benedict, 
 
 253 
 
 Glidewell, Harke||K. 
 
 530 
 
 
 
 
 Glover r. Townshend, 
 
 369 
 
 Hackley, Cummings v 
 
 
 215 
 
 Gobbold, Chappin v. 
 
 108, 386 
 
 lladdens v. Chambers, 
 
 
 317 
 
 Godden v. Pierson, 
 
 101, 210 
 
 Haddon r. Haddou, 
 
 
 209 
 
 Goelet V. Cowdrey, 
 
 193 
 
 Hagler, Jones v. 
 
 
 311 
 
 Goetz V. Foos, 
 
 210 
 
 Hall, Boone ». 
 
 
 402 
 
 Go Id sherry, Pierce v. 
 
 410 
 
 V. Cushman, 
 
 
 356 
 
 Goldsmith v. Brown, 
 
 411 
 
 Fay v. 
 
 
 4
 
 XXVI 
 
 AMERICAN CASES CITED. 
 
 Hull, Hodges r. G7 
 t\ Iluchons, G7 
 
 V. Newcombe, 179 
 
 NewstatUe. 21 
 
 r. Robbing, 380 
 
 r. Soule, 175 
 
 Stearns r. 175 
 
 Thompson f!. 411, 4;}2 
 
 Wliotchtero. 445 
 
 V. Wood, 115 
 
 Young V. 363 
 
 Halliburton v. Carter, 330 
 
 Ilalliday «. Hart, 409, 419 
 
 Ilalsev. La Farge r. 431 
 
 nam,'Ellis», 321,322 
 
 llamakpr v. Eberlej-, 23, 25, 26 
 
 Hamer v. Kirkwood, 429 
 
 Hamill v. Purvis, 
 Hamilt<jn, Beesley v. 
 
 V. Cutts, 
 
 Field V. 
 
 Montgomery r. 
 
 V. Van Rensselaer, 
 
 -^ V. Winterrowd, 
 
 ITauilin, McQuewans v. 
 Hampton, Clark ■o. 
 
 V. Levy, 
 
 Hancock, Danar. 
 Handkinson, Gray v. 
 •Hantord v. Higgins, 
 Hanner v. Douglass, 
 Hanson v. Crawley, 
 
 202 
 378 
 312 
 348 
 407 
 235 
 
 27, 407 
 201 
 
 20, 382 
 412 
 74 
 380 
 115 
 312 
 378, 397 
 
 21, 
 
 Hapgood, Aldrich's Adm'rs v. 356 
 Harbeck, Gardner v. 384, 385 
 
 llardcsty v. Jones, 120 
 
 Hardy ®. Carter, 321, 322 
 
 '- Clayton v. 202 
 
 Nelson v. 83 
 
 Hargrove v. Cooke, 321, 428 
 
 Harker v. Glidewell, i!30 
 
 Harmon, Pitzer o. 309 
 
 Harold, Andeison v. 207 
 
 Harrinian v. Egbert, 446 
 
 Harrington v. Rich, 105, 130 
 
 V. Wallace, 229, 313, 431 
 
 , Harrison, Cincinnati Ins. Co. v. 33 
 
 V. Phillips, 
 
 r. Sawcell, 
 
 Smith V. 
 
 Harris, Cole v. 
 
 Randle v. 
 
 Voltz». 
 
 V Young, 
 
 Harden, Meriam v. 
 Harstock, Kaufman 
 
 347 
 
 58 
 
 345 
 
 451 
 
 172 
 
 218, 219,416 
 
 23, 25, 67, 139 
 
 23 
 
 210 
 
 Hart V. Clouser, 
 
 Halliday v. 
 
 Pope V. 
 
 p. Talmadge, 
 
 White V. 
 
 Hartness ®. Thompson, 
 Hartshorn, Bent v. 
 
 Penniraan r. 
 
 Hartwell r. Smith, 
 Harvey, Huntington r. 
 
 Peabody v. 
 
 Hnskins, Cabot v. 
 Hastings Bank, Hawkins v 
 Hatch v. Hobbs, 
 
 V. SouUard, 
 
 Hatchett v. Pegram, 
 
 378 
 
 409, 419 
 
 369 
 
 363 
 
 308, 317 
 
 17 
 
 Hathom, Chase v. 
 Hutton V. Padgett, 
 Haus V. Fen Ion, 
 Haven v. Foster, 
 Hawkes, Arbuckle v. 
 Hawkins, Ayer v. 
 
 V. Hastings Bank 
 
 V, 
 
 Scully t 
 
 Swil't V. 
 
 Hayden v. Crane, 
 Hayes v. Baxter, 
 
 ?\ Davis, 
 
 V. Moynihan, 
 
 V. Ward, 
 
 V. Wells, 
 
 Haynes v. Lilly, 
 
 V. Seachrest, 
 
 Hazzard, Little v. 
 Hearing v. Dittman, 
 Hearn, CoUaway v. 
 Hetiburd «. Dunlop, 
 Hedges v. Strong, 
 Hedrick, Creigh r. 
 Hellcgas, United States v. 
 
 261 
 Hemsley, Butterfield r. 
 Henbach v. Mollmann, 
 Henderson v. Johnson, 
 
 V. Marvin, 
 
 V. Rice, 
 
 Ilendrie v. Berkowjtz, 
 Hendrick v. Whittemore. 
 Henly, White v. 
 Hennian, Woodruffs. 
 Henning, Preston v. 
 Henry v. Compton, 
 Heralson v. Mason, 
 Herndon v. Mason, 
 
 40, 235, 
 21. 
 
 24 
 
 203 
 
 34 G 
 
 115 
 
 191 
 
 25 
 
 203 
 
 238 
 
 ?09 
 
 309, 
 
 313, 317, 869 
 
 370 
 
 180 
 
 21 
 
 445 
 
 66 
 
 428 
 
 203 
 
 316 
 
 379 
 
 ' 238 
 
 203 
 
 356 
 
 209 
 
 218, 412 
 
 407, 410 
 
 417 
 
 203 
 
 203 
 
 07,71,139,210 
 
 21, 380 
 
 9,445 
 
 23, 25, 105, 139 
 
 5, 314 
 
 254, 
 
 384, 385 
 
 201 
 
 158 
 
 180 
 
 419 
 
 23, 34 
 
 202 
 
 223 
 
 225 
 
 21 
 
 410 
 
 356 
 
 330 
 
 309
 
 AMERICAN CASES CITED. 
 
 XXVll 
 
 Herrick v. Borst, BIS, 412 
 
 Herrin. Eddy v. 130 
 
 Hess's Estate, lie, 348 
 
 Hess, Miner v. 204 
 
 Hewett, Langan v. 203 
 
 Heydrick, Barnard v. 204 
 
 Hibbs, Kelsey v. . 58, 144 
 
 Hickerson r. Price, 347 
 
 Hicks V. Wbitmore, 193 
 Higgins, Collyer v. 31, 255, 334 
 
 Hauford v. 115 
 
 Higginson, Cremer v. 3, 202, 211 
 
 Hignutt, Garey v. 406 
 
 Hill V. Calvin, 3 
 
 — V. Morse, 446 
 
 — ;'. Raymond, 115 
 
 — Smith V. 202 
 
 — Stinson r. 231 
 
 — V. Wright, 314 
 Hillard, Benjamin v. 7, 40, 432 
 Hillhouse, Breed r. 4 
 Hiltz V. Scully, 23, 88, 120, 121, 139 
 Hindraan v. Langford, 136 
 Hine, Stouldt v. 83 
 Hinkle, McMullen ®. 408 
 
 Stewart v. 25, 105, 139 
 
 Hinman, Chase v. 309 
 
 Hintou, Cutter ». 115 
 
 Hitchcock V. Lukens, 38 
 
 Hoag, Pollock V. 432 
 
 Hobart, Lampson v. 79 
 
 Hobbs, Hatch v. 238 
 
 Hodge, United States ■». 408 
 
 Hodges V. Hall, 67 
 
 Hodgkins r. Bond, 74 
 
 V. Jackson, 210 
 
 HofVuian v. Johnson, 308 
 
 Holbrook, Howard v. 185 
 
 V. Wright, 159 
 
 Ilollinger, Graham v. 369 
 
 Hollingsworth v. Turn3r, 401 
 
 Hollman v. Langdon, 255 
 
 HoUoman v. Langdon, 31 
 
 Plolman v. Day, 348 
 
 liolmes, Beverleys v. 20 
 
 ; Kincheloe v. 4 
 
 V. Knight, 59 
 
 V. Weed, 235, 316 
 
 Hooker, Davis v. 343 
 
 Pierson v. 175 
 
 Hoops, Davis v. 356 
 
 Hoover v. Epler, 345 
 
 V. Morris, ICO 
 
 V. Pierce, 21 
 
 Hopkins, Conkey v. 23, 34, 128 
 
 Hopkins v. Cooper, 309 
 Dodge V. 191 
 
 Gardner®. 136 
 
 Youst V. 191 
 
 Home V. Bodwell, 408 
 
 Horner, Neffp. 378 
 
 V. Lyman, 223, 348, 359 
 
 Horton v. Manning, 5 
 
 Hoskins, Bowen v. 348, 351 
 
 V. Parsons, 345 
 
 Hoskinson v. Elliot, 203 
 
 Hotchin v. Keut, 201 
 
 Hotchkiss v\ Barnes, 238 
 
 Moser v. 25, 185 
 
 Houdlet, Oliver v. 17 
 
 Hough V. ^tna Life Ins. Co. 254, 341 
 Houghton V. Ledbetter, 225 
 
 Housman, Bank of United States v. 22 
 
 Howard v. Clark, 
 
 V. Coshow, 
 
 V. Dutch, 
 
 V. Holbrook, 
 
 Howard v. 
 
 Maguire v. 
 
 Sevvell p. 
 
 Howe V. Buffalo and Erie Ry 
 
 — : — V. Nickels, 
 
 Pierson v. 
 
 ITowland, Douglass v. 
 Hubbard v. Briggs, 
 Hubbell V. Carpenter, 
 
 Turner v. 
 
 Hubbly V. Brown, 
 Huchons, Hall v. 
 Hudgins, Garner v. 
 Huey V. Pinney, 
 Hull, Strouther v. 
 Humboldt's Appeal, 
 Humphrey, Pratt v. 
 Humphreys o. Crane, 
 
 Leggett V. 
 
 Noyes v. 
 
 Hungerford, Seabury v 
 Hunt ?', Amidon, 
 
 V. Bridgman, 
 
 Bryan «. 
 
 V. Chapin, 
 
 Jefferson v. 
 
 V. Knox, 397, 408, 41 1; 425 
 
 V. Postlewait, 410 
 
 V. Roberts, 407 
 
 V. Rousmaniere's Adui. 9, 445 
 
 V. Smith, 40 
 
 V. United States, 408 
 
 Hunter v. Clark, 411 
 
 407 
 
 25,130 
 
 67, 139 
 
 185 
 
 431 
 
 229,313 
 
 346 
 
 809 
 
 3 
 
 369 
 
 4, 185, 314 
 
 369, 370 
 
 398, 419 
 
 61,89 
 
 235, 316 
 
 445 
 
 «9, 238 
 
 317 
 
 225 
 
 209 
 
 130 
 
 408 
 
 2 
 
 115 
 
 179 
 
 309 
 
 408 
 
 175 
 
 202 
 
 89, 139
 
 XXVIII 
 
 AMERICAN CASES CITED. 
 
 Hunter r. Nolf, 21 
 
 Wilson 7). 203 
 
 Huntington v. HaiTey, 115 
 
 Moore v." 223 
 
 Ilurchm'm, Downey v. 07, 101, 127 
 
 llurlbut r. I'acitic Ins. Co. 159 
 
 Ilutcliins f. Byrnes, 191 
 
 Bacon V. 202 
 
 Hutchinson, McLaren v. 83, 109, 139 
 
 Hyatt, J»rvi3 v. 407 
 
 Hyde, Bleaker v. 4 
 
 Knapp r. 13 
 
 V. Tenweukel, 5 
 
 Ilylton, Ware v. 19 
 
 Ide, Smith v. 
 Ingalls V. Dennett, 
 Ingraham, Nat. Bank v. 
 
 Newell V. 
 
 Irvine, Miller v. 
 Irwin, McCormick v. 
 
 Pike I'. 
 
 Irwine, Sutton v. 
 Isham, Craft v. 
 Ives, Adams r. 
 
 Jackson v. Fletcher, 
 
 V. Fo-;ter, 
 
 V. Griswold, 
 
 Hodgkins v. 
 
 Newsom v. 
 
 V. Raynor, 
 
 V. Tihus, 
 
 Jacol)s, Watson v. 
 James #. Patten, 
 Jarman i\ Wiswall, 
 Jarratt v. Martin, 
 Jarvis v. Hyatt, 
 Jefferson r. Hunt, 
 Jefferson Co. v. Slagle, 
 Jenkins, Kelly v. 
 
 V. McNeese, 
 
 Jennings, Robinson r. 
 Jeroloman, Crosley v. 
 Jewell, Aldrich v. 
 Jewett V. Bacon, 
 
 v. Crane, 
 
 Johnson r. Bowden, 
 
 Henderson v. 
 
 Hoffman ». 
 
 V. Johnson, 
 
 Nicliols V. 
 
 V. Norman. 
 
 ?'. Rockwell, 
 
 Wright V. 
 
 180, 184 
 309 
 202 
 115 
 180 
 345 
 23 
 201 
 4 
 406 
 
 215 
 
 175 
 
 314 
 
 210 
 
 367,369 
 
 109 
 
 74 
 
 105 
 
 203 
 
 2 
 
 330, 313 
 
 407 
 
 89, 139 
 
 67, 120, 121 
 
 420 
 
 413 
 
 339 
 
 07, 210 
 
 67 
 
 331 
 
 314 
 
 209 
 
 .180 
 
 308 
 
 316 
 
 187 
 
 89 
 
 17 
 
 40 
 
 Joint School District v. Tyford, 
 
 276 
 
 Jolleyp. Walker, 108 
 
 Jones. Adams v. 3 
 
 Carter v. 2, 307 
 
 Cunningham v. 4 
 
 Douglass V. 89 
 
 V. Fincher, 345 
 
 V. Greenland, 67 
 
 r. Hogler, 311 
 
 Hardesty v. 130 
 
 V. Palmer, 180 
 
 Porter t. 204 
 
 Reed v. 175 
 
 v. Shorter, 58 
 
 Train i;. 183 
 
 Jordan, Faler v. 302 
 
 Joslvn V. Eastmiin, 385 
 
 Joyner, Pogue v. 831, 322 
 
 Jucison, Bennett n. 869 
 
 Rindget). 238 
 
 Kaighn, Paulin r. 341, 347, 356 
 
 Kaufman v. Harstock, 210 
 
 V. Wilson, 411 
 
 Kay V. Allen, 3, 4 
 
 Kearns v. Montgomery, 5 
 
 Keave ». Fisher, 286 
 
 Keith, Ford v. 316 
 
 r. Goodwin, 358 
 
 Stewart v. 431 
 
 Kellar, Bell v. 4 
 
 Keller v. Ring, 18 
 
 Kellogg, Montgomery r. 6, 238 
 
 Kelly V. Jenkins, 420 
 
 Kelsey v Hibbs, 58, 144 
 Kennebec Bank v. Tuckerman, 408 
 
 Kennedy v Bossiere, 412, 427 
 
 East River Bank V. 398,419 
 
 Zane v. 
 
 
 
 407 
 
 Kent, Hotchin v. 
 
 
 
 201 
 
 Kephart, Whitcomb v. 
 
 
 
 26 
 
 Kepp V. Brigham, 
 
 
 
 276 
 
 Kercheval, Farmers' Bank v. 
 
 
 4 
 
 Kettlewell, Connolly v. 
 
 
 07 
 
 115 
 
 Keyes, Mead v. 
 
 
 
 105 
 
 Keystone, Patterson v. 
 
 
 
 191 
 
 Kidd, Brown v. 
 
 
 
 312 
 
 Kile, Chilcote v. 
 
 
 
 210 
 
 Killan r. Badgett, 
 
 
 
 11 
 
 Kimball v. Walker, 
 
 
 21 
 
 380 
 
 Kimble r. Com stock. 
 
 
 
 43 
 
 V. Cummings, 
 
 309,312, 
 
 313, 
 
 
 
 
 316 
 
 Kimmel, Solomon r. 
 
 
 22 
 
 380
 
 AMERICAN CASES CITED. 
 
 XXIX 
 
 Kiucbeloe v. Holmes, 4 
 
 King V. Baldwin, 308, 324, 408, 
 
 V. Blackmore, 
 
 V. Despurd, 
 
 V. Upton, 
 
 Kingsley v. Balcombe, 
 Kingston &c. Ins. Co. v. 
 
 411 
 
 225, 401 
 
 79 
 
 26 
 
 .58, i;J7, 139 
 
 Clark, 31, 
 
 255 
 
 408, 
 
 Kinnesburgh v. Rumncr, 
 Kirby v. Studebaker, 
 Kirk, Sacramento v. 
 Kirkwood, Hamer v. 
 Kistler's Appeal, 
 Kleia v. Currier, 
 Klin^ensmith v. Klingensmitli, 
 Knapp, Campbell v. 
 
 V. Hyde, 
 
 V. Marlboro, 
 
 Kneeland, Evans v. 
 
 Rogers v. 
 
 Kniffin, Morris v. 
 Knight, Holmes v. 
 
 324 
 
 21 
 411 
 395 
 429 
 209 
 
 34 
 
 406 
 
 23, 34 
 
 13 
 312 
 361 
 130 
 204 
 
 59 
 
 Knox, Hunt?;. 397,408,411,425 
 
 Kolloman v. Langdon, 324 
 
 Koppel, Wolff «. 136 
 
 Krutz V. Adams, 34 
 
 Kuhn V. Brown, 95, 100 
 
 Kuns V. Young, 27, 89 
 
 Kyle V. Bostick, 321, 322 
 
 Lacour, Gosserand v. 346, 432 
 
 Ladd, Reed v. 116 
 
 La Farge v. Halsey, 431 
 Lafayette Bank, McLean v. 108, 376 
 
 Lahens, Fielden r. 5, 202, 422 
 
 Laing v Lee, 180 
 
 Laiiib V. Baker, 21 1 
 
 Lampson v. Hobart, 79 
 Lancaster, Vance v. 309, 330, 356 
 
 Landis, York v. 347 
 
 Lane, Robinson i\ . 105 
 
 V. Stacy, 341 
 
 Langan v. Hewett, 202 
 
 Laugdon, Hollman «. 255 
 
 Holloraan v. 31, 324 
 
 Langford, Hindman v. 136 
 Lapeer &c. Plank Road Co. 
 
 Barnard v. 202 
 
 Lapliam v. Barrett, 185 
 
 Chapin v. 101 
 
 Larchar, Bailey v. 40 
 
 Larson v. Wyman, 115 
 
 Lasber v. "Williamson, 229 
 
 Latiimore, Brown v. 31, 255, 324 
 
 Lawrence, Davis Sewing Machine 
 
 Co. V. 193 
 
 Lawrence v. McCalmont, 211 
 
 V. Taylor, 183 
 
 Lawson v. Townes, 3 
 
 Leary v. Cheshire, 356 
 
 Leavitt, Bank of Steubenville v. 45 
 
 Lecat V. Tavel, 180 
 
 Ledbetter, Houghton v. 225 
 
 V. Walker, 101 
 
 Le Doux V. Darrive, 347 
 
 Lee V. Dick, ;^ 
 
 — Laing?). 180 
 
 — McDaniels v. 313 
 Leeds v. Dunn, 384, 385 
 
 Rhodes v. 60 
 
 Leggett V. Humphreys, 2 
 
 Magee v. 348 
 
 Lejghton v. Atkins, 304, 321, 322, 
 
 351 
 
 Leland v. Creyon, 
 Lemmou v. Box, 
 Lenz ('. Charlton, 
 Leonard v. Bates, 
 Cory V. 
 
 Leroy, Lowby v. 
 Leverick v. Meigs, 
 Levy, Hampton v. 
 
 V. Meriill, 
 
 lie, 
 
 Lewis, McCann v. 
 
 Mesereau v 
 
 Mills ». 
 
 Ramsey v. 
 
 Way V. 
 
 115 
 
 127 
 
 276 
 
 21, 380 
 
 400 
 
 Vreedenburgh, 22, 23, 24, 
 
 34, 128 
 
 213 
 
 158,159 
 
 412 
 
 180 
 
 311 
 
 27, 75, 89 
 
 130 
 
 204 
 
 341, 356 
 
 400 
 
 Lexington &c. R. R. Co. v. Elwell, 
 
 31, 255, 325 
 Liebrandt v. Myron Lodge, 407 
 
 Lilly, Haynes v. 417 
 
 Lim'e Rock &c. Co. v. Trest, 202 
 
 Lindsey v. Lindsey, 204 
 
 Lindsley v. Coates, 492 
 
 Lennell, Miles v. 355, 422 
 
 Lippincott v. Ashfield, 83 
 
 Lipscomb v. Grace, 402 
 
 Little ». Hazzaid, 203 
 
 Williams v. 386 
 
 Littleton v. Richardson, 312 
 Livermore v. Rand, 428, 429 
 Livingston, Mechanic's Bank v. 202 
 Lloyd V. Galbraith, 345, 346 
 Lockwood V. Penn, 254, 400 
 Wood V. 276
 
 XXX 
 
 AMERICAN CASES CITED. 
 
 Logan, Campbell c. 204 
 
 Ewing V. 9 
 
 Longv. Brevard, 412 
 
 Long?), ("olburn, 189 
 
 O'Niel V. 276 
 
 Lonsdale v. Brown, 26 
 
 Loomer, Wheelwright v, 401 
 
 Loomi3 V. Newhall, 8o 
 
 Lossee ?.'. Williams, 23, 25, 07, 71, 192 
 
 Loiicks, Saltcnherry v. 254 
 
 Low, Stafford v. C 
 
 Lowby V. Leioy, 213 
 Lowery v. Lunibcrmere's Bant, 317 
 
 Lowman r. Yates, 409, 419 
 
 Lowrason v. Mason, 187, 188 
 
 Lowrey v. Adams, 4 
 
 Lowry v. Diew, 203 
 
 Lowther, Farwell v. 183 
 
 Luark v. Malone, 210 
 
 Lucas V. Payne, 83 
 
 Luce, Case v. 238 
 
 Ludlow, Grant v. 345 
 Ludwick V. Watson, 23, 35, lt)5, 139 
 
 Lukens, Hitchcock v. ^ 38 
 Lumbermere's Bank, Lowery v. 317 
 
 Lyle, Champneys v. 317 
 Lyman, Homer v. 233, 348, 359 
 
 V. Newman, 431 
 
 Lyon, Denny v. 345 
 
 V. Richardson, 9 
 
 V. Richmond, 445 
 
 V. Thompson, 191 
 
 McAfee, Click v. 105 
 
 McCalmont, Lawrence v. 216 
 
 McCann, Darlington ». 115 
 
 V. Lewis, 27, 75, 89 
 
 Thomas v. 369 
 
 McCarter v. Turner, 5 
 
 McChesnev, Corbin o. 83 
 
 McCiear, McElroy v. 202 
 
 McClurg® Fryer, 4 
 
 McCluakyo. Cromwell, 211,213 
 
 McCollum V. Cushing, 238 
 
 iMcComb V. Wright, 189, 193 
 
 McConnell v. Scott, 309 
 
 Wallace V. 425 
 
 McCormick, Ellis v. 397, 425 
 
 Irwin V. 345 
 
 McCoy, Potter v. 203 
 
 McCrea v. Peimorfc, 22 
 
 McCreary v. Parks, 340, 34 1 
 
 V. Van Hook, 23, 25, 71, 
 
 109 
 
 McCrory v. Parks, 347 
 
 McCune?) Belt, 340,341,347,350,403 
 McCurd, Bowman v. 416 
 
 McDaniels v Lee, 312 
 
 McDonough, Boyd v. 339, 340 
 
 McElroy v. McClear, 202 
 
 McEwen, Phillbrooks v. 412 
 
 McGan v. Marshall, 17 
 
 McCrovern, McLoughlin v. 417 
 
 McGregory, Duke v. 35 
 
 Fisk ». 130 
 
 McHatton, Williams©. 211,213 
 
 Mcllvaine, Place v. 420 
 
 McKay, Walker v. 228, 013, 431 
 
 McKee r. Campbell, 349 
 
 Gates V. 311 
 
 McKeenan v. Thistle, 83 
 
 McK^nzie «. Scott, 159 
 
 McLaren v. Hutchinson, 83, 109, 139 
 McLaughlin v. McGovern, 417 
 
 McLean, Charman v. 201 
 
 V. Lafayette Bank, 108, 376 
 
 McMahon, McWhorter v. 189 
 
 McMillan, Adams v. 193 
 
 — •- V. Bull's Head Bank, 2, 219 
 McMullen v. Hinkle, 408 
 
 McNairy v. Thompson, 213 
 
 McNaughtoniJ.Conkling, 46,238,370 
 McNeese, Jenkins r. 413 
 
 McQuenans v. Hamlin, 201 
 
 McSjJedou, Therassou v. 108,171 
 McWhorter v. McMahon, 189 
 
 Mace V. Wells, 331, 323 
 
 Mackenzie, Stroop v. 
 MacKnight v. Bright, 
 Magee v. Leggett, 
 Maguire v. Howard, 
 
 I\Lallory v. Gillett, 
 Malone, Luark v. 
 Man P. Bliuchard, 
 Mimdigo V Mandigo, 
 Manhattan Co., Denny v 
 Manley ?'. 'Gliigan, 
 
 '^5^ 
 
 4 
 
 348 
 
 238, 339, 313, 
 
 431 
 
 79 
 210 
 
 43 
 356 
 213 
 310 
 
 Maon, State Treasurer r. 31, 255, 324 
 
 • Wells ». 32,315,432 
 
 Manning, Horton v. 5 
 
 State V. ' 407 
 
 March, Weils v. 301 
 
 Markle, Fientress v. 333, 846, 351 
 
 Marks, Sterns v. 35, 370 
 
 Marlboro, Kmipp r. 313 
 
 Maibh V. Ca-e, 365 
 
 ». Falkcr, 366,370 
 
 French v. 33 
 
 Sickle r. 5,238
 
 AMERICAN CASES CITED. 
 
 XXXI 
 
 Marshall, McGan v. 
 Marshall, Williams v. 
 Marston, Richmond v. 
 Martel, Denill v. 
 Martin, Baker v. 
 
 Brockett v. 
 
 Garr v. 
 
 Jarratt v. 
 
 Martz, Morin v. 
 Marvin, Henderson e. 
 
 «. Inglis, 
 
 Mason, Beau v. 
 
 '0. Ecktbrd's Ex'rs, 
 
 «. Heralsou, 
 
 Hern don v. 
 
 Lowrason v. 
 
 United States v. 
 
 Wetherly v. 
 
 Mathews, Ritenour ». 
 Matteson, Constant v 
 
 17 
 
 23 
 
 345, 34G 
 
 407 
 
 235, 316 
 
 7 
 
 309, 313 
 
 313, 330 
 
 130 
 
 Matthews v. Aiken, 
 Mattock V. Gibson, 
 Mauran v. Bull us, 
 Maxwell, Block v. 
 May V. Coffin, 
 Mayfield v. Wheeler, 
 Mayhew v. Bond, 
 Mayo, Smith v. 
 Mead v. Bunn, 
 
 V. Keyeg, 
 
 Meadows v. Meadows, 
 
 Mease v. Wagner, 
 
 Mechanics' Bank v. Livingston, 
 
 Meehan v. Rowke, 
 
 Meeker, Couch v. 
 
 Mpigs, Leverick v. 
 
 Waterman v. 
 
 Menard v. Scudder, 
 .Mendelson v. Stout, 
 Menefee v. Arnold, 
 
 r. Clark, 
 
 Mercein v. Andru?i, 
 Meriaai v. Harden, 
 Merrill, Chapin v. 
 
 v. Englesby, 
 
 V. Gore, 
 
 Lsvyr. 
 
 Mitchell V. 
 
 Smborn v. 
 
 Merritt, Agnew v. 
 
 ■ V. Glasson, 
 
 Mersereau v. Lewis, 
 Mete lit" «. Taylor, 
 Michael, Dominick v 
 
 419 
 13 
 31 
 417 
 330 
 309 
 187,188 
 257 
 309 
 381 
 309, 311, 345, 
 346 
 339 
 31, 380 
 238 
 254 
 445 
 237, 353 
 336 
 67 
 370 
 105 
 193 
 101 
 203 
 304 
 58 
 158, 159 
 187 
 3, 8, 40 
 363 
 313 
 410 
 173 
 33 
 58 
 89 
 33, 213, 215 
 . 180 
 435 
 67 
 417 
 305 
 130 
 203 
 17 
 
 Miles V. Cook, 
 
 
 191 
 
 V. Linnell, 
 
 355, 
 
 443 
 
 Standley v. 
 
 
 23 
 
 Miller, Commonwealth v. 
 
 108, 
 
 376 
 
 1), Cook, 
 
 
 185 
 
 Downer v. 
 
 
 346 
 
 Frank v. 
 
 
 309 
 
 t). Irvine, 
 
 
 180 
 
 V. Miller, 
 
 
 13 
 
 V. Moses, 
 
 
 445 
 
 Roth V. 
 
 108, 
 
 386 
 
 V. Sawyer, 
 
 
 356 
 
 \\ Stein, 
 
 
 408 
 
 V. Stewart, 2, 34, 
 
 354. 
 
 363, 
 
 366, 368, 325, 336, 
 
 385, 
 
 389 
 
 Millett V. Parker, 
 
 
 343 
 
 Milliken v. Tufts, 
 
 
 439 
 
 Mills V. Davis, 
 
 
 335 
 
 — ■ — V. Lewis, 
 
 
 304 
 
 Miner v. Hess, 
 
 
 204 
 
 Minor y Willoughby, 
 
 
 191 
 
 Mitchell v. Merrill, 
 
 
 425 
 
 MoUman, Henbach «. 
 
 
 158 
 
 Monson v. Drakeley, 
 
 
 336, 
 
 *337, 346 
 
 , 357 
 
 ,383 
 
 Montgomery v. Hamilton, 
 
 
 407 
 
 Kearns v. 
 
 
 5 
 
 V. Kellogg, 
 
 6 
 
 ,238- 
 
 Moody, Naylor v. 
 
 
 408 
 
 Moore v. Campbell, 
 
 338 
 
 ,446 
 
 7). Huntington, 
 
 
 223 
 
 — - V. Paine, 
 
 
 317 
 
 V. Pickett, 
 
 
 209 
 
 More wood, Dows v. 
 
 
 429 
 
 Morey, Clark v. 
 
 
 19 
 
 Morgan v. Coffman, 
 
 
 407 
 
 Morin ». Martz, 
 
 
 130 
 
 Morris, Hoover v. 
 
 
 100 
 
 f>. Kniffin, 
 
 
 204 
 
 Morse v. Gleason, 
 
 
 296 
 
 . Hill V. 
 
 
 446 
 
 Slingerland v. 
 
 
 173 
 
 Mortimer « Cornwall, 
 
 
 189 
 
 Morton « Dean, 
 
 
 193 
 
 Moseley v- Tavlor, 
 
 
 105 
 
 Moser v. Hotchkiss, 
 
 23, 185 
 
 Moses, Miller o. 
 
 
 445 
 
 Mott, Crafts ». 804,33 
 
 1,333 
 
 Mott, Gay v. 
 
 
 380 
 
 Moulton, Dale v. 
 
 
 27G 
 
 Mount V. T ippen. 
 
 
 396 
 
 Mouton V. Beauchamp, 
 
 230, 230 
 
 
 
 4H3 
 
 Moynihan, Hayes v. 
 
 
 209 
 
 Mudd », Rogers, 
 
 
 254
 
 XXXll 
 
 AMERICAN CASES CITED. 
 
 Mullen, Bui^'ott r. ' 345, 348 
 
 Ma11(M- c. Bohlens, 159 
 
 ^lullitian V. Bailey, 370 
 
 Munn, Warroli v. 189 
 
 3Iurplij's Admr. r. Carter, 225 
 
 Murphy, Boebue v. 238 
 
 Murray t. Garret, 21 
 
 ' People v. 203 
 
 Shotwell V. 9, 445 
 
 Musgrove v. Glasgow, 108, 386 
 
 ]\Iussey r. Raynor, 3 
 
 Myron Lodge, Liebrandt t\ 407 
 
 Na?h, Neal r. 
 
 
 313 
 
 330 
 
 Nat. Bank v. Ingraliam, 
 
 
 
 202 
 
 Naylor, Doolittle v. 
 
 
 
 136 
 
 — — V. 3Ioody, 
 
 
 
 408 
 
 Neal 1). Nash. 
 
 
 313, 
 
 330 
 
 Nebergall r. Tyree, 
 
 
 
 314 
 
 Neelson v. Sandbourae, 
 
 
 23, 
 
 180 
 
 Neff V. Horner, 
 
 
 
 378 
 
 Nelson o. Boynton, 
 
 
 79, 
 
 13'.* 
 
 V. Hardy, 
 
 
 
 83 
 
 Nesmith, Swan v. 
 
 
 
 158 
 
 Nettleton, Tilson v. 
 
 66 
 
 115, 
 
 120 
 
 Neustadt v. Hall, 
 
 
 
 21 
 
 Newcombc, Hall v. 
 
 
 
 179 
 
 Newell V. In graham. 
 
 
 
 115 
 
 T. Norton, 
 
 
 
 391 
 
 Prescott V. 
 
 
 
 345 
 
 Newhall, Loomis v. 
 
 
 
 85 
 
 Newkirk, Ringgold v. 
 
 
 50 
 
 180 
 
 Newman, Lyman «. 
 
 
 
 431 
 
 New Orleans, Commercial Bank 
 
 V. 
 
 
 
 212 
 
 213 
 
 New Orleans Telegraph 
 
 Co. 
 
 Doane v. 
 
 
 
 
 225 
 
 Newsom v. Jackson| 
 
 
 367 
 
 369 
 
 Stafford v. 
 
 
 362 
 
 367 
 
 New York, Sharp v. 
 
 
 369, 
 
 370 
 
 Nicholas, Noyes v. 
 
 
 
 211 
 
 Nichols r. Johnson, 
 
 
 
 187 
 
 Weldr. 
 
 
 
 130 
 
 Nickels, Howe v. 
 
 
 
 3 
 
 Niemcewicz, Gahn v. 
 
 
 398 
 
 419 
 
 Nixon, Gale v. 
 
 
 
 207 
 
 V. Palmer, 
 
 
 
 202 
 
 Nolf, Hunter v. 
 
 
 
 21 
 
 Norman, Johnson v. 
 
 
 
 89 
 
 Norris r. Crummey, 
 
 
 
 445 
 
 North American Life Ins Co. Saw- 
 
 yer «. 
 
 
 
 178 
 
 North r. Robinson, 
 
 
 
 130 
 
 Northampton Bank v. Pepoon, 
 
 189 
 
 Northcote, Peele r. 
 
 
 
 159 
 
 Norton v. Coons, 
 
 
 345 
 
 V. Eastman, 
 
 
 3 
 
 Newell V. 
 
 
 891 
 
 Walker r. 
 
 
 39 
 
 Noyes v. Humphreys, 
 
 
 115 
 
 V. Nicholas, 
 
 
 211 
 
 Nudd, Shaw v. 
 
 
 189 
 
 Nutting V. Dickerson. 
 
 
 21 
 
 N. Y. State Bank v. Fletcl 
 
 er, 
 
 309 
 
 Oakes v. Weller, 
 
 
 4 
 
 Oberndorf v. Union Bank, 
 
 408 
 
 425 
 
 Odbert, Conway v. 
 
 
 314 
 
 Ogden, Bailey v. 
 
 
 207 
 
 Oliver v. Bragg, 
 
 
 346 
 
 V. Houdlet, 
 
 
 17 
 
 Olmstead v. Greenly, 
 
 
 136 
 
 O'Niel, Graham v. 
 
 
 34 
 
 ■ «. Long, 
 
 
 276 
 
 Onley v. Van Heusen, 
 
 
 193 
 
 Orono, Sweat v. 
 
 
 21 
 
 Osceola, Gails v. 
 
 lis 
 
 380 
 
 Osgood r. Franklin, 
 
 
 21 
 
 Ostrom, Claflin v. 
 
 1,34 
 
 301 
 
 Otis, Still well v. 
 
 
 83 
 
 Vivian v. 
 
 
 276 
 
 Owen, Boyce ». 
 
 
 79 
 
 Pacific Ins. Co., Hurlbut v. 159 
 
 Packard, Pain v. 411 
 
 «. Richardson, 39, 217 
 
 Packer v. Benton, 71, 73, 210 
 
 Paddleford, Buchannan v. 183, 184, 
 
 
 
 210 
 
 Padgett, llutton v. 
 
 
 ISO 
 
 Page, Black River Bank v. 
 
 218 
 
 411 
 
 Cobb T. 
 
 
 22 
 
 Page's Admrs. v. Bank of Alexan- 
 
 dria, 
 
 
 215 
 
 Paige, Boardman v. 
 
 
 351 
 
 Pain V. Packard, 
 
 
 411 
 
 Paine, Moore ». 
 
 
 317 
 
 Palm.er, Jones v. 
 
 
 180 
 
 . Nixon V. 
 
 
 202 
 
 Shepard ». 
 
 
 215 
 
 V. Stephens, 
 
 33, 
 
 205 
 
 Parham v. Green, 
 
 
 347 
 
 Parish, Champlin v. 
 
 189, 
 
 204 
 
 Parker r. Barker, 
 
 23, 
 
 207 
 
 V. Culverston, 
 
 
 4 
 
 Fox V. 
 
 398 
 
 419 
 
 Millett V. 
 
 
 343 
 
 Pearson v. 
 
 
 309 
 
 Parkham v. Randolph, 
 
 
 369 
 
 Parkins, Thompson v. 
 
 
 159
 
 AMERICAN GASES CITED. 
 
 XXXlll 
 
 Parks, McCreary v. 340, 441, 
 
 Parlin, Blake v. 
 
 Parnell v. Price, 
 
 Parsons, Hoskins v. 
 
 Patchin v. Swift, 
 
 Patten, James v. 
 
 Patterson v, Cunningham, 
 
 V. Keystone, 
 
 Pattison v. Vauglian, 
 
 Paulin V. Kaighn, 341, 347, 
 
 Payne v. Able, 
 
 Lucas ». 
 
 Peabody v. Chapman, 
 
 V. Harvey, 
 
 Peacock v. Chapman, 
 Peake, Blalock v. 
 
 V. Darwin, 2, 
 
 Pearson v. Parker, 
 
 Pearsons, Peojiles' Bank «. 
 
 Peck V. Thompson, 
 
 Pecquet v. Pecquet's Exr. 341, 
 
 Peebles v. Stephens, 23, 
 
 Peele v. Northcote, 
 
 Peers v. Davis, 
 
 Pcgram, Hatchett v. 309, 313, 
 
 Peiper, Brady v. 
 
 Pendell i\ Bressler, 
 
 Penn, Lockwood v. 
 
 Penniman v. Hartshorn, 
 
 Peoples' Bank v. Pearsons, 
 
 People V. Bostwick, 
 
 V. Curry, 
 
 «. Murray, 
 
 V. Shall, 
 
 - V. Vilas, 
 Pepoon, Northamjiton Bank v 
 Pepper, States. 
 Perkins v. Elliott, 
 
 Russell V. 
 
 Tompkins v. 
 
 Perley v. Spring, 
 Permort, McCrea v. 
 Perrine v. Cheeseman, 
 Perry v. Perry, 
 
 V. Saunders, 
 
 Peters, Purdy v. 35, 
 
 Phares v. Barbour, 
 Phelan v. Gardiner, 
 Phelps V. Zuschlag, 
 Phillbrooks v. McEwen, 
 Phillips V. Ames, 
 
 Bridges v. 
 
 Harrison v. 
 
 v. Soloman, 
 
 Pickersgill v. Lahens, 
 
 C 
 
 347 
 
 23 
 
 408 
 
 345 
 
 180 
 
 203 
 
 58 
 
 191 
 
 9 
 
 356 
 
 311 
 
 83 
 
 341 
 
 191 
 
 407 
 
 328 
 
 307 
 
 309 
 
 408 
 
 89 
 
 356 
 
 380 
 
 159 
 
 175 
 
 317 
 
 389 
 
 116 
 
 400 
 
 203 
 
 408 
 
 343 
 
 225 
 
 203 
 
 20 
 
 384, 385 
 
 189 
 
 378 
 
 18 
 
 297 
 
 159 
 
 58 
 
 23 
 
 21 
 
 330 
 
 446 
 
 370 
 
 326 
 
 13 
 
 13 
 
 412 
 
 319 
 
 400 
 
 347 
 
 301 
 
 437 
 
 254, 
 
 323, 
 
 282, 
 
 Pickett, Moore v. 209 
 
 Pierce, Alexander v. 13 
 
 G-oldsberry v. 410 
 
 Hoover v. 21 
 
 Swift w. 116 
 
 Tutor V. 845 
 
 Wren ». 180 
 
 Pierson, Bassford v. 21 
 
 Godden v. 101, 210 
 
 V. "Hooker, 175 
 
 v. Howe, 369 
 
 Pigptt, Siau V. 172 
 
 Pike, Allen ». • 4 
 
 V. Brown, 58, 130 
 
 V. Irvviu, 23 
 
 Pilgrim v. Dykes, 408 
 
 Piuney, Clark v. 309 
 
 Huey V. 317 
 
 Pitcher, Chickasan v. 407 
 
 Pitman, Barbee «. * 412 
 
 V. Chisholm, 410 
 
 Pitts V. Congden, 398, 419 
 Pittsburg&c. R. R. Co. v. Shaeffer, 
 
 410 
 
 Pitzer V. Harmon, 309 
 
 Place V. Mcllvaiue, 430 
 
 Placer County v. Dickerson, 255 
 
 Planters' Bank, Andrews v. 201 
 
 Piatt V. Stark, 409 
 
 Pogue V. Joyuer, 321, 333 
 
 Pollock i\ Hoag, 433 
 
 Pomeroy, Carter v. 203 
 
 Pope V. Hart, 309 
 
 Poppe, Zachrisson v. 205 
 
 Porter v. Jones, 304 
 Portsmouth Co. v. Salmon Falls 
 
 Co. 213 
 
 Post V. Doremus, 276 
 Postmaster General v. Reeder, 254, 
 336, 438 
 
 Postlewait, Hunt v. 410 
 
 Potter, Cady v. 304 
 
 V. McCoy, 203 
 
 1). Price, 303 
 
 Purcell ». . 189 
 
 Poultney, Bramble v. 815 
 
 Powell V. Waters, 411 
 
 Powers, Woodward v. 270 
 
 Pratt p. Humphrey, 130 
 
 Succession of, 413, 427 
 
 Taylor «. 180 
 
 Preble ^.'Baldwin, 130 
 
 Chamberlin «. 212 
 
 Prentiss, Fellows v. 238 
 
 Prescott V. Newell, 345
 
 XXXI V 
 
 AMERICAN CASES CITED. 
 
 Preslar, Stallwoith v. 31 7, 340, 341 
 
 Prestnian, Driinimond v. 
 
 211 
 
 Preston v. Hcnning, 
 
 410 
 
 Spaulding v. 
 
 Price t". Dunn, 
 
 21 
 193 
 
 Heckerson v. 
 
 347 
 
 Paniell v. 
 
 408 
 
 Potter V. 
 
 202 
 
 Prince, Taylor v. , 
 Pringle V. Spaulding-, 
 Pryor, Allen v. 
 
 22 
 193 
 
 58 
 
 Puckett v. Bates, 
 
 115 
 
 Pullen, Glass v. 
 
 347 
 
 Pulver, AiTuitage v. 
 
 341, 343 
 
 Van Slyck v. 27, 
 
 75, 79, 89 
 
 Purcell V. Potter, 
 
 189 
 
 Purdy V. Peters, 
 Purviance v. Sutherland, 
 
 35, 370 
 
 203 
 
 Purvis, Ranney V( 
 Putnam v. Russell, 
 
 411 
 
 428 
 
 Putney v. Faruham, 23, 25, 67, 139 
 
 Quick V. Black, 308 
 
 Sikes V. 309, 311 
 
 Quintard v. D'Wolf, 105, 386 
 
 Rabaud v. D'Wolf. 23, 91 
 
 Rabbernian i\ Wiskamp, 210 
 
 Ramsey, Althouse v. 105 
 
 V. Lewis, 341, 356 
 
 Rand, Livermore v. 428, 429 
 
 Randall i-. Rich, 309 
 
 Watson V. 25, 105 
 
 Randle ti. Harris, 172 
 
 Randolph, Parkham v. 369 
 
 Rankin r. White, 412 
 
 V. Wilsey, 401 
 
 Ranney v. Pui"vis, 411 
 
 Ratcliff t'. Trout, 180 
 
 Ravel r. Tillotson, • 268 
 
 Raymond, Hill v. 115 
 
 Raynor, Jackson v. 109 
 
 Mussey v. 3 
 
 Read, Congdon v. 238 
 
 V. Cutts, 4 
 
 Reed v. Batchelder^ 17 
 
 «. Emory, 317 
 
 V. Evans, 180 
 
 V. Fish, 238 
 
 V. Jones, 175 
 
 v. Ladd, 116 
 
 Van Ostrand v. 189 
 
 Reeder, Postmaster General v. 254, 
 
 268, 336 
 
 Reinskopf f . Rogge, 13 
 
 Renibcrt, Griffin v. 33 
 
 Remington, Clark v. 4 
 
 V. Staats, 406 
 
 Remsen v. Beekman, 217, 411, 412 
 
 r. Graves, 411, 417 
 
 Reppy, Darwin r. 384 
 
 Reynolds v. Caqienter, 180 
 
 Douglass V. 4, 211 
 
 Rhodes v. Leeds, 66 
 
 Rice, Baird v. 408 
 
 Henderson t. 23, 34 
 
 Rich, Harriniiton y. 105,130 
 
 Randall r. 309 
 
 Richards v. Commonwealth, 217, 
 
 408,411,412,427 
 
 Walker v. 
 
 Richardson, Baldwin v. 
 
 Bradley v. 
 
 Cr^ss v. 
 
 Davis V. 
 
 Emery v. 
 
 Littleton v. 
 
 Lyon V. 
 
 Packard v. 
 
 Richmond, Lyon v. 
 
 V. Marston, 
 
 Rightmere, Allen v. 
 Rindge v. Judson, 
 Rinehart, Vaudruff v. 
 Ring, Keller ». 
 Ringgold V. Newkirk, 
 Ritenour v. Mathews, 
 Robb, Taliaferro v. 
 Robl)ins, Chambers v. 
 
 Hall V. 
 
 Roberts, Dunning v. 
 
 Eddy v. 
 
 Gallaher's Ex'rs y, 
 
 Hunt V. 
 
 State V. 
 
 Robinson, Ashford v. 
 
 v. Brooks, 
 
 V. Jennings, 
 
 V. Lane, 
 
 North V. 
 
 Rucker v. 
 
 Roche V. Chaplin, 
 Rockwell, Johnson v. 
 Rodgers y. Atkinson, 
 
 V. Kneel and, 
 
 Rodman, Andre v. 
 Rogers, Mudd v. 
 
 Smith V. 
 
 V. Warner, 
 
 Rogge, Reinskopf v. 
 
 115 
 
 202 
 
 159 
 
 79 
 
 202 
 
 400 
 
 312 
 
 9 
 
 39, 219 
 
 445 
 
 345, 346 
 
 383 
 
 238 
 
 206 
 
 18 
 
 180 
 
 381 
 
 130 
 
 100 
 
 380 
 
 205 
 
 25, 67, 105 
 
 108, 386 
 
 407 
 
 50, 
 
 276 
 
 180 
 
 256 
 
 339 
 
 205 
 
 130 
 
 408 
 
 101 
 
 17 
 
 74, 175 
 
 130 
 
 105 
 
 254 
 
 2 
 
 211 
 
 13
 
 AMERICAN CASES CITED. 
 
 XXXV 
 
 331, 
 
 Kollins V. Stevens, 
 Root, Beardsley's Ex'rs v. 
 Roper, Gamett v. 
 
 V. Stone, 
 
 Rose, Taylor v. 
 Ross, Yardeman r. 
 'c. Whitfield, 
 
 Roth V. Miller, 108, 
 
 Rousmaniere's Adm., Hunt v. 9, 
 Rowan v. Sharjjs »fcc. Co. 
 Rowe, Besshears v. 23, 35, 99, 
 Rowke, Meehan i\ 
 Rowmau, Union Bank v. 
 Rucker v. Robinson, 
 Ruggles, Coggeshall v. 
 Rumner, Kinesburgh v. 
 Runde r. Runde, 
 Russel, Beamaa v. 
 
 Clark i\ 26,311,333, 
 
 Russell, Barrett i\ 
 
 v. Clark's Executors, 
 
 Perkins v. 383, 
 
 Putnam v. 
 
 V. Skipworth, 
 
 v. Wiggins, 
 
 Ruttledge v. Greenwood, 
 
 Sackett, Cole v. 
 
 Sackrider, Brady v. 
 
 Sacramento i\ Kirk, 
 
 Sage V. Wilcox, 
 
 Sailly V. Elmore, 
 
 Salmon Falls Co. i\ Portsmouth 
 
 Co. 
 Saltenberry v. Loacks, 
 Sampson, Springsteen v. 
 
 V. Swift, 
 
 Sanborn v. Flagler, 
 
 V. Merrill, 
 
 Sandbourne, Neelson v 
 Sanders v. Clason, 
 
 r. Gillespie, 
 
 Sandford v. Allen, 
 Saunders, Perry v. 
 Savage, Wildes v. 
 Sawtell, Harrison r. 
 Sawyer, Miller v. 
 
 V. North American Life 
 
 Ins. Co, 
 
 Sayward, Smith v. 
 Scarf, Allen v. 6 
 
 Schaffer, S^^meyer v. 
 Schafl'ner v. Fogleman, 
 Schlessinger v. Dickinson, 
 Schraertz o. Shreeve, 
 
 303! 
 309 1 
 333 1 
 
 31 
 180 
 235 
 203 
 386 
 445 
 385 
 139 
 304 
 4 
 408 
 336 
 
 31 
 309 
 
 58 
 373 
 303 
 374 
 397 
 438 
 
 19 
 188 
 313 
 
 380 
 115 
 395 
 
 180 
 408 
 
 313 
 
 354 
 
 313 
 
 89 
 
 33, 305 
 
 67 
 
 33, 180 
 
 109, 139 
 
 33 
 
 4 
 
 446 
 
 3,4 
 
 58 
 
 356 
 
 178 
 
 58, 79 
 
 115,137 
 
 407 
 
 334 
 
 203 
 
 Schmidt v. Coulter, 343 
 
 Schoonmaker, Stockbridge v. 
 
 Schuler, Breeze v. 326 
 
 Scott V. Bandv, 301 
 
 r. Bush,"^ 309 
 
 McConnell v. 309 
 
 McKenzie v. 159 
 
 V. Thomas, 79 
 
 Sco\nlle, Alger v. 79, 130, 139 
 
 Scruggs, Creed v. 347 
 
 Scudder, Barker v. 385 
 
 Menard v. 3, 8, 40 
 
 Smith V. 446 ' 
 
 Scully V. Hawkins, 7, 40, 335, 316 
 
 Ililtz V. 33, 88, 120, 131, 139 
 
 Seabury v. Hungerford, 179 
 
 Seachrest, Haynes v. 303 
 
 Sears v. Brink, 91 
 
 Sedgwick, Amicable Ins. Co. v. 376 
 Seeley, Bonney v. 316 
 
 Seeskiud, August v. 304 
 
 Seitz, Fulmer r. 378 
 
 Selden r. Bank of Commerce, 301 
 Selden's Lessee, Shaw ';. 191 
 
 Sewall V. Howard, 346 
 
 Seymour, Welch v. 31, 355, 324 
 
 V. Wilson, 369 
 
 Shaefter, Pittsburg &c. R. R. 
 
 Co. i\ 411 
 
 Shall, People v. 20 
 
 Shanner, Bailey v. ' 13 
 
 Sharp i\ New York, 369, 370 
 
 Sharps &c. Co., Rowan v. 384, 385 
 Shaw, Bashford v. 4 
 
 V. Finney, 193 
 
 V. Nudd, 189 
 
 Sherburne v. 187 
 
 V. Stine, 46, 369 
 
 Shears, Shepard v. 73 
 
 Sheers v. Seldeu's Lessee, 191 
 
 Shepard v. Palmer, 315 
 
 V. Shears, 73 
 
 Sherburne v. Shaw, 187 
 
 Sherman, Woods v. 34 
 
 V. Barnard, 73 
 
 Sherrill, Benedict v. 238 
 
 Sherwood v. Stone, 159, 160 
 
 Shied V. Stamps, 187 
 
 Shields, Barrow v. 400 
 
 Davis V. 192, 203 
 
 Shilding v. Warren, 235 
 
 Shine, Central Savings Bank v. 338 
 Shinn r. Budd, 340 
 
 Shirley v. Fearue, 203 
 
 Shook V. Van Mater, 79
 
 XXXVl 
 
 AMERICAN CASES CITED. 
 
 Shorter, Jones r. 
 
 58 
 
 Solomonsky, White v. 
 
 73,210 
 
 Bhotwell r. Murray, 
 
 9,445 
 
 Soule r. Alboe, 
 
 130 
 
 Shrecve, Sclmiertz i\ 
 
 203 
 
 Hall r. 
 
 175 
 
 Slnimway, Brookline v. 
 
 408 
 
 Soullard. Hatch v. 
 
 309 
 
 Shupe T. Galbraith, 
 
 27, 75, 89 
 
 Soulliard r. Boyd, 
 
 21 
 
 Siau V. Pigott, 
 
 172 
 
 Sparks, Dunn v. 321, 340, 346, 351 
 
 Sickle V. Marsh. 
 
 5,238 
 
 Todd V. 
 
 225 
 
 Sidwell r. Evans, 
 
 26 
 
 Spaulding v. Preston, 
 
 21 
 
 Siebrecht. Chipp v. 
 
 225 
 
 Pringle v. 
 
 193 
 
 Sigsl^y V. Willis, 
 
 319 
 
 Spiller, Bramble v. 
 
 159 
 
 Sikes i\ Quick, 
 
 309,311 
 
 V. Creditors, 
 
 345 
 
 Silence, Brewster v. 
 
 185 
 
 Spooner v. Dunn, 
 
 79 
 
 Silmeyer v. Schaflfer, 
 
 407 
 
 Sprague, Billings v. 
 
 5,328 
 
 Simons v. Steele, 
 
 40 
 
 Spring V. Coffin, 
 
 21 
 
 Simpson v. Blount, 
 
 411 
 
 Perley v. 
 
 58 
 
 V. Bovard, 
 
 336, 383 
 
 Springer v. Springer, 
 
 339 
 
 . Waters v. 
 
 408 
 
 Springsteen v. Sampson, 
 
 213 
 
 Sinclair v. Bradley, 
 
 67, 210 
 
 Staats, Davis v. 
 
 103,336 
 
 Singer t. Troutman, 
 
 411,412 
 
 Remington r. 
 
 406 
 
 Singley v. Cutter, 
 
 184 
 
 Stackpole v. Arnold, 
 
 189 
 
 Skildiiag v. Warren, 
 
 316 
 
 Stacy, Lane v. 
 
 341A 
 
 Skipworth. Russell t. 
 
 19 
 
 Stafford v. Lowe, 
 
 6 
 
 Slagle, Jeiferson (j^. v. 67 
 
 ,120,121 
 
 V. Newsom, 
 
 362, 367 
 
 Slater, Emerson v. 
 
 137, 139 
 
 St. Albans Bank v. Dillon, 
 
 384, 385 
 
 Slingerland v. 3Iorse, 
 
 172 
 
 Stall worth i\ Preslau, 317, 
 
 340,341 
 
 Sloan r. Wilson, 
 
 180 
 
 Stamps, Shield v. 
 
 187 
 
 Small, Clark t. 
 
 21, 22 
 
 Standley v. Miles, 
 
 23 
 
 Smith T. Anderson, 33? 
 
 , 345, 347 
 
 Stanwood v. Clampit, 
 
 345 
 
 Bank of Brighton i\ 
 
 343 
 
 Staples, Consociated Societj 
 
 r 1). 83 
 
 V. Barker, 
 
 402 
 
 Stark, Piatt v. 
 
 409 
 
 V. Board of Supervisors, 223, 
 
 State V. Campbell, 79, 183, 184, 200 
 
 
 233 
 
 T. Cunningham, 
 
 254 
 
 r. Bowles, 193 
 
 200, 210 
 
 V. Denny, 
 
 254 
 
 EuckalcAV V. 
 
 410 
 
 V. Gaillard, 
 
 21, 380 
 
 Coke V. 
 
 408 
 
 V. Gilbert, 
 
 257 
 
 r. Daun. 
 
 4, 211 
 
 «. Manning, 
 
 407 
 
 Ex j/arte, 
 
 445 
 
 V. Pepper, 
 
 378 
 
 r. Finch, 
 
 25 
 
 V. Roberts, 31 
 
 260, 276 
 
 Grant v. 
 
 397 
 
 Rutledge v. 
 
 351 
 
 V. Harrison, 
 
 345 
 
 Thompson v. 
 
 31, 324 
 
 Hartwell v. 
 
 346 
 
 State Treasurer v. Mann, 
 
 31, 255, 
 
 T. Hill, 
 
 202 
 
 
 260, 324 
 
 Hunt i\ 
 
 40 
 
 Steadman, Swan v. 
 
 203 
 
 t. Ide, 
 
 180. 184 
 
 Steams i\ Hall, 
 
 175 
 
 V. Mayo, 
 
 67 
 
 Stedman, Arnold i. 
 
 79 
 
 T. Rogers, 
 
 2 
 
 Steele «. First National Bank, 209 
 
 t\ Sayward, 
 
 58,79 
 
 Simons V. 
 
 40 
 
 r. Scudder, 
 
 446 
 
 «. Towne, 
 
 115 
 
 1-. Town sh end. 
 
 409,419 
 
 Stein, Miller v. 
 
 408 
 
 V. United States, 
 
 223 
 
 Steinbaker v. Wilson, 
 
 13 
 
 Wynian v. 
 
 83 
 
 Stephens, Palmer v. 
 
 33, 205 
 
 Smithers, Turner v. 
 
 21 
 
 Peebles v. ^ 
 
 r. Winn, 
 
 22, 380 
 
 Sneed's Ex'rs v. White, 
 
 108, 386 
 
 180 
 
 Solomon, Phillips v. 
 
 401 
 
 Stei^heuson, Arnold v. 
 
 203 
 
 V. Kimmel, 
 
 22, 380 
 
 Ware v. 
 
 105
 
 sterling v. Stewart, 383 
 
 Stern v. Drinker, 79 
 
 Sterns v. j\Iarks, 35, 370 
 
 Stevens, Gard v. 238 
 
 Rollins V. 303 
 
 V. Van Cleve, 306 
 
 Stewart v. Campbell, 310 
 
 r. Hinkle, 35, 105, 139 
 
 V. Keith, 431 
 
 Miller v. 2, 53, 211, 354, 
 
 363, 365, 366, 268, 325, 
 336, 384, 385, 3S9 
 
 Sterling v, 383 
 
 Stillwell V. Otis, 83 
 
 Stilson, Greeley v. 309 
 
 Stine, Shaw v. 46, 369 
 
 Stinson v. Hill, 
 
 Stockbridge v. Schoonmaker, 
 
 Stone V. Compton, 
 
 V. Denny, 
 
 Roper V. 
 
 Sherwood v. 
 
 V. Symmes, 
 
 Storrs V. Barker, 
 
 Wright V. 
 
 Stouldt V. Hine, 
 Stout, Mendelson v. 
 Stovall V. Banks, 
 Strever, Agawam Bank v. 
 
 159, 
 
 331 
 
 6 
 
 361 
 
 369 
 
 31 
 
 160 
 
 ' 105 
 
 9,445 
 
 9, 419, 421 
 
 83 
 
 363 
 
 314 
 
 338 
 
 Strong, Bangs v. 
 Hedges v. 
 
 313, 398, 419 
 23, 35, 105, 139 
 
 408, 
 
 Stroop V. Mackenzie, 
 Strother v. Hull, 
 Studebaker, Kerby v. 
 Sumrall, Townsley v. 
 Supervisors, Board of, Smith v. 
 Sutherland tf Purviance, 
 Sutton V. Irwine, 
 Sutler V. Wright, 
 Swan V. Nesmitb, 
 
 V. Stedman, 
 
 Sweetser v. French, 
 Swift V. Hawkins, 
 
 Patcliin V. 
 
 V. Pierce, 
 
 Sampson v. 
 
 Sylverstein v. Atkinson, 
 Symmes, Stone v. 
 
 Tabor, Wintersmith v. 
 Taliaferro v. Robb, 
 Tallman v. Franklin, 
 Tally, Booker v. 
 Talmadge, Hart r. 
 'rt.ppen. Mount v. 
 
 357 
 225 
 
 411 
 
 35 
 
 232 
 
 203 
 
 201 
 
 309 
 
 158 
 
 203 
 
 201, 202 
 
 21, 380 
 
 180 
 
 116 
 
 203 
 105 
 
 413 
 130 
 193 
 66 
 302 
 396 
 
 ASES CITED. 
 
 xxxvn 
 
 Tavel, Lecat v. ^ 
 
 180 
 
 Taylor v. Allen, 
 
 430 
 
 V. Davis, 
 
 411 
 
 Dearborn v. 
 
 845 
 
 V. Drake, 
 
 115 
 
 Lawrence i\ 
 
 180 
 
 Metcalf V. 
 
 213 
 
 Moseley v. 
 
 105 
 
 i\ Pratt, 
 
 185 
 
 v. Ross, 
 
 180 
 
 r. Wetmore, 
 
 3 
 
 Tees, Ewing v. 
 
 189 
 
 Teuny r. Prince, 
 
 33 
 
 Tenth National Bank v. 
 
 Darragh, 
 
 
 313 
 
 Tenwinkle, Hyde v. 
 
 5 
 
 Thatcher v. Dinsmore, 
 
 309 
 
 Therasson v. McSpedou, 
 
 108,171 
 
 Thistle, McKeenan v. 
 
 83 
 
 Thomas v. Delphy, 
 
 33, 
 
 Fish r 
 
 D. McCann, 
 
 Scott V. 
 
 Thompson, Allen v. 
 V. Blancliard 
 
 Frencb v. 
 
 V. Hall, 
 
 Hartness v. 
 
 Lyon V. 
 
 McNairy v. 
 
 Peck V. 
 
 V. Parkins, 
 
 V. State, 
 
 183, 184, 186, 310 
 79 
 
 411 
 
 369 
 
 79 
 
 136 
 
 89 
 
 136 
 
 433 
 
 17 
 
 191 
 
 313 
 
 Walrath v. 
 
 Wogan V. 
 
 Thome, Dunlap v. 
 Tibbetts v. Flanders, 
 Tichout, Emei-y v. 
 Tilleston v. Nettleson, 
 Tillman v. Wheeler, 
 Tillotson, Ravel v. 
 
 159 
 31, 
 
 355, 360, 334 
 40, 311 
 336 
 173 
 127 
 431 
 66, 115, 126 
 383 
 260 
 
 United States v. 254 
 
 336, 386 
 
 Tilman, Whitworth «. 235, 316 
 
 Tindall v. Touchbeny, 173 
 
 Titus, Jackson v. 74 
 
 Updyke v. 36 
 
 Titzer, Boyd v. 413 
 
 Tobev, Todd ». 81 
 
 Todd i\ Sparks, • 225 
 
 — — V. Tobey, 81 
 
 Toler, Armstrong v. 31 
 
 Tom V. Goodrich, 309
 
 XXXVlll 
 
 AMERICAN CASES CITED. 
 
 Tompkins r. jerkins, 
 
 159 
 
 United States v. Ilelegas, 
 
 
 254 
 
 ToonicT /'. Dickcrson, 
 
 385, 412 
 
 268, 
 
 384, 
 
 385 
 
 Touchberry, Tiudall i\ 
 
 172 
 
 V. Hodge, 
 
 
 408 
 
 Towne, Steele v. 
 
 115 
 
 Hunt V. 
 
 
 408 
 
 Townes, Lawson r. 
 
 3 
 
 ?i. Mason, 
 
 
 254 
 
 Tomiseud, Smith v. 
 
 409, 419 
 
 Smith V. 
 
 
 223 
 
 "Williams v. 
 
 419 
 
 r. Tillotson, 
 
 
 254, 
 
 Townsliend, Glover v. 
 
 369 
 
 
 336 
 
 386 
 
 Groat V. 
 
 22 
 
 v. Truesdell, 
 
 
 255 
 
 "Williams r. 
 
 398, 411 
 
 Updyke >:. Titus, 
 
 
 36 
 
 ToAvnsley r. Sumriill, 
 
 25 
 
 Upton, King v. 
 
 
 26 
 
 Train v. Jones, 
 
 182 
 
 V. Vail, 
 
 
 362 
 
 Treat, Lime Rock «S:c. Co. t 
 
 202 
 
 
 
 
 V. Orouo, 
 
 21 
 
 "Vail, Upton v. 
 
 
 362 
 
 Trescott, Draper r. 
 
 408, 409 
 
 Valle, Bean i\ 
 
 
 180 
 
 Trevitt r. Griffin, 
 
 209 
 
 "Van Alstyne v. "Winkle, 
 
 
 56 
 
 Trout, Ratcliffi', 
 
 180 
 
 "Vance v. Lancaster, 309, 
 
 330, 
 
 356 
 
 Tunibull V. 
 
 89 
 
 Van Cleve, Stevens v. 
 
 
 206 
 
 Troutman, Singer t. 
 
 411, 412 
 
 Vanderlyn, EUing v. 
 
 
 26 
 
 Truesdell, United States r. 
 
 255 
 
 Vanderveer v. "Wright, 
 
 
 4 
 
 Wakefield Bank 
 
 V. 410 
 
 Vanclrutf i\ Rinehart, 
 
 
 206 
 
 Tubbs V. "Williams, 
 
 321, 322 
 
 Van Heusen, Orley i\ 
 
 
 193 
 
 Tucker v. Betting, 
 
 251 
 
 Van Hook, McCreery v. 
 
 
 23, 
 
 Graves r. 
 
 361 
 
 25, 7^ 
 
 1,79 
 
 109 
 
 Tuckennan v. French, 
 
 3 
 
 Van Mater, Shook v. 
 
 
 79 
 
 Kennebec Bank 
 
 V. 498 
 
 Van Ostrand v. Reed, 
 
 
 189 
 
 Tufts, Milliken v. 
 
 429 
 
 Van Rensselaer, Hamilton v 
 
 
 235 
 
 Turnbull v. Trout, 
 
 189 
 
 Van Slyck -v. Pulver, 27, 75, 7 
 
 3, 89 
 
 Turner, Aldridge v. 
 
 22 
 
 Vardeman v. Ross, 
 
 
 225 
 
 Hollingswoith ''. 
 
 401 
 
 Vaugh'an, Pattison «. 
 
 
 9 
 
 V. Hubbell, 
 
 01,89 
 
 Vernam v. Harris, 
 
 
 451 
 
 McCarter v. 
 
 5 
 
 Vilas, People r. 
 
 38i 
 
 385 
 
 T. Smithers, 
 
 21 
 
 Vivian v. Otis, 
 
 
 276 
 
 Turpin v. Turpin, 
 
 17 
 
 Voiles v. Green, 
 
 
 378 
 
 Tutor r. Pierce, 
 
 345 
 
 Voltz v. Harris, 218. 
 
 219 
 
 416 
 
 Tyford. Joint School Dist. v. 276 
 
 Vose «. Florida R. R. Co. 
 
 
 389 
 
 Tyree, Nebergall v. 
 
 314 
 
 • 
 "Waggener v. Dyer, 
 
 
 344 
 
 Uhler V. Farmer's National Bank, 
 
 Wagner, Mease v. 
 
 
 101 
 
 
 23, 25 
 
 Wakefield Bank v. Truesdell, 
 
 410 
 
 TJlery v. Ginrich, 
 
 202 
 
 "Walker v. Forbes, 
 
 
 3,4 
 
 IJnderwood t\ Campbell, 
 
 180 
 
 JoUev r. 
 
 
 108 
 
 linger v. Anderson, 
 
 5 
 
 Kimball i\ 
 
 21, 
 
 380 
 
 Union Bank v. Beatty, 
 
 233, 254 
 
 Ledbetter v. 
 
 
 191 
 
 f. Coster's Executors, 
 
 V. McKay, 228, 
 
 313 
 
 431 
 
 4, 
 
 181, 188 
 
 V. Norton, 
 
 
 39 
 
 Oberndorf v. 
 
 408, 425 
 
 V. Richards, 
 
 
 115 
 
 V. Eowman, 
 
 4 
 
 V. Walker, 
 
 22 
 
 380 
 
 United States v. Allsbury, 
 
 814 
 
 Wallace, Ham'ngton i\ 229 
 
 313 
 
 431 
 
 r. Bainbridge, 
 
 17 
 
 V. McConnell, 
 
 
 425 
 
 Bankof, r. Housman,22 
 
 Wallis v. Carpenter, 
 
 
 382 
 
 Brown v. 
 
 19 
 
 Walrath v. Thompson, 
 
 40 
 
 211 
 
 i\ Corwine, 
 
 397 
 
 Walton, Clay v. 
 
 
 127 
 
 Dair v. 
 
 223 
 
 Ward, Craig v. 
 
 
 369 
 
 T. Davis, 
 
 363 
 
 Hayes v. 
 
 218 
 
 ,4:TM
 
 AMI 
 
 :ric. 
 
 \N C 
 
 ASE3 CITED. 
 
 XXXI X 
 
 "Wardon, Gibson r. 
 
 
 208 
 
 White V. Wieland, 
 
 209 
 
 Ware v. Adams, 
 
 
 91 
 
 Whitfield, Ross v. 
 
 202 
 
 i\ Hylton, 
 
 
 19 
 
 Whitmore v. Adams, 
 
 202 
 
 t\ Stephenson, 
 
 
 105 
 
 Flemm v. 
 
 130 
 
 Warfleld, Elder v. 
 
 
 115 
 
 2ir 
 
 Hicks V. 
 
 193 
 
 Warner, Rogers v. 
 
 
 Whitney «. Dutch, 
 
 17 
 
 Warren, Commercial Bank 
 
 V. 
 
 202 
 
 Whittemore, Hendrick ■». 
 
 223 
 
 Dole r. 332 
 
 346 
 
 351 
 
 Whittier ;;. Dana, 
 
 74, 175 
 
 Shilding v. 
 
 
 235 
 
 Whitworth v. Tilman, 
 
 235,316 
 
 Skilding v. 
 
 
 316 
 
 Wieland, White v. 
 
 209 
 
 Warroll r. Mimn, 
 
 
 189 
 
 Wiggins, Russel v. 
 
 188 
 
 Washburn v. Gould, 
 
 
 213 
 
 Wilcox, Gage v. 
 
 58 
 
 Waterman i\ Meigs, 
 
 
 187 
 
 Sage V. 
 
 180 
 
 Waters, Powell v. 
 
 
 411 
 
 Wiser v. 
 
 362 
 
 V. Simpson, 
 
 
 408 
 
 Wilde V. Armsby, 
 
 378 
 
 Watson r. Jacobs, 
 
 
 105 
 
 Wilder, Doty v. 
 
 193 
 
 Ludwick V. 23, 25 
 
 , 105 
 
 139 
 
 V. Savage, 
 
 3,4 
 
 r. Eandall, 
 
 25 
 
 ,105 
 
 Williams, Conner v. 
 
 109,139 
 
 Way, Adams v. 
 
 
 421 
 
 Ex j)arte, 
 
 115 
 
 r. Lewis, 
 
 
 400 
 
 Lossee ». 23, 25, 
 
 67,71,192 
 
 Webster v. Ela, 
 
 
 187 
 
 V. Marshall, 
 
 23 
 
 Weed V. Case, 
 
 366, 
 
 370 
 
 v. McHatton, 
 
 211, 213 
 
 V. Grant, 
 
 2 
 
 307 
 
 ' y. Townshend, 
 
 398, 411, 
 
 Holmes r. 
 
 235 
 
 316 
 
 
 419 
 
 Weeks, Wright v. 
 
 
 176 
 
 Tubbs «. 
 
 321, 322 
 
 Welch v. Seymour, 
 
 
 31 
 
 V. Little, 
 
 386 
 
 Weld V. Nichols, 
 
 
 130 
 
 Wilson V. 
 
 202 
 
 Welford v. Beazley, • 
 
 
 206 
 
 v. Woods, 
 
 206 
 
 Weller, Oakes v. 
 
 
 4 
 
 Williamson, Lasher v. 
 
 229 
 
 Wells, Bean v. 
 
 
 370 
 
 Wfllie V. Green, 
 
 309 
 
 Hayes v. 
 
 407 
 
 410 
 
 Willis, Sigsby v. 
 
 319 
 
 Mace V. 
 
 321 
 
 322 
 
 Willoughby, Minor «. 
 
 191 
 
 V. Mann, 22 
 
 315, 
 
 432 
 
 Wilmerding, Cartwright v 
 
 165, 
 
 «. March, 
 
 
 201 
 
 
 166, 167 
 
 Welsh V. Seymour, 
 
 255, 
 
 324 
 
 Wilsey, Rankin v. 
 
 401 
 
 Wentworth, Caldwell v. 
 
 
 429 
 
 Wilson, Ainslee v. 
 
 309 
 
 West, Cadwallader v. 
 
 
 13 
 
 v. Beavans, 23, 
 
 25, 67, 71 
 
 V. Chasten, 
 
 
 308 
 
 1). Brown, 
 
 345, 346 
 
 Dunn V. 
 
 
 58 
 
 Core i\ 
 
 9 
 
 Wetherley «. Mason, 
 
 
 309 
 
 Ex farte^ 
 
 445 
 
 Wetmore, Taylor v. 
 
 
 3 
 
 ®. Foster, 
 
 202 
 
 Weymouth, Bordelou v. 
 
 409 
 
 413 
 
 «. Hunter, 
 
 203 
 
 Wheeler, Mayiield v. 
 
 237, 
 
 253 
 
 Kaufman v. 
 
 411 
 
 Tillman v. 
 
 
 383 
 
 Seymour i\ 
 
 369 
 
 Wheelock, Yale v. 
 
 5, 
 
 343 
 
 Sloan V. 
 
 180 
 
 Wheelwright «. Loomer, 
 
 
 401 
 
 Steinbaker v. 
 
 13 
 
 Whipple v. Briggs, 
 
 312, 
 
 326 
 
 ; i\ Williams, 
 
 202 
 
 Wbitcher v. Hall, 
 
 
 445 
 
 Winkle, Van Alstyne v. 
 
 56 
 
 Whitcomb v. Kephart, 
 
 
 25 
 
 Winkleman, Fasnacht v. 
 
 397 
 
 White, Doyle v. 
 
 
 66 
 
 Winn, Stephens v. 
 
 180 
 
 t\ Hart, 
 
 308, 
 
 317 
 
 Winterrowd, Hamilton v. 
 
 27,407 
 
 V. Henly, 
 
 
 225 
 
 Winters, Bridges v. 
 
 410 
 
 Rankin v. 
 
 
 412 
 
 Wintersmitii v. Tarbox, . 
 
 412 
 
 V. Solomonsky, 
 
 73, 
 
 210 
 
 Wiseman, Fetrow v. 
 
 432 
 
 Sneed's Ex'rs v. 
 
 108, 
 
 386 
 
 Wiser v. Wilcox, 
 
 362
 
 xl 
 
 AMERICAN CASES CITED. 
 
 Wiskamp, Rul>l)(.Tman c. 
 
 
 200 
 
 Wright, Sutler r. 
 
 309 
 
 Wiswall, Jarman i\ 
 
 
 2 
 
 Vanderveer t 
 
 4 
 
 Wogan V. Thompson, 
 
 
 236 
 
 r. Weeks, 
 
 175 
 
 "Wo Iff V. Koppcl, 
 
 
 l:5G 
 
 Wiinsch, Duffy ''. 
 
 183,184,210 
 
 Wood r. Albany &c. R. R. 
 
 Co. 
 
 189^ 
 
 Wyman i\ Goodrich, 
 
 23,25,67,139 
 
 r. Beach, 
 
 
 185 
 
 r. Gray, 
 
 180 
 
 Binsse v. 
 
 
 ~) 
 
 Larson r. 
 
 115 
 
 r. Corcoran, 
 
 105 
 
 386 
 
 V. Smith, 
 
 83 
 
 Hall V. 
 
 
 115 
 
 Wynn v. Brooke, 
 
 315 
 
 V. Lockwood, 
 
 
 276 
 
 
 
 Woodruff r. Hennian, 
 
 
 21 
 
 Yale T. Edgerton, 
 
 23,25,183,184 
 
 Woods T. Sliermau, 
 
 
 34 
 
 V. Wheelock, 
 
 5, 343 
 
 "NV'illiams i\ 
 
 
 206 
 
 Yates, Lowraan v. 
 
 409, 419 
 
 Woodward, Bank r. 
 
 
 408 
 
 York V. Landis, 
 
 347 
 
 T. Cowing, 
 
 
 21 
 
 Young V. Covell, 
 
 362 
 
 V. Powers, 
 
 
 270 
 
 V. Hall, 
 
 362 
 
 Wren i\ Pierce, 
 
 
 180 
 
 Harris v. 
 
 23, 25, 67, 139 
 
 •Wright r. Austin, 
 
 
 326 
 
 Kuus V. 
 
 27, 89 
 
 Brown v. 
 
 108, 
 
 386 
 
 Youst r. Hopkins, 
 
 191 
 
 Butler V. 
 
 812 
 
 313 
 
 
 
 Hill V. 
 
 
 314 
 
 Zabriskie v. Cleveland &c. R. R. 
 
 Holbrook i: 
 
 
 159 
 
 Co. 
 
 417 
 
 V. Johnson, 
 
 
 40 
 
 Zachrisson v. Poppe, 
 
 205 
 
 McComb v. 
 
 189 
 
 193 
 
 Zane v. Kennedy, 
 
 407 
 
 T. Storrs, 
 
 419 
 
 421 
 
 Zuschlag, Phelps v. 
 
 13
 
 TABLE OF CASES CITED IN THE TEXT 
 
 (ENGLISH). 
 
 Abbott r. Hicks, 
 Ackerman t\ Ehrensperger, 
 Adams i\ Dansey, 
 
 V. Lindsell, 
 
 Adkinst'. Farrington, 
 Adney, ex parte, 
 Agacio V. Forbes, 
 Agra Bank, ex parte, 
 Agra & Mastermau's Bank, 
 Aldoiis V. Cornwell, 
 Alexander v. Vane, 
 Allan V. Inman, 
 Allen, ex parte, 
 
 V. Bennett, 
 
 V. Kenning, 
 
 Allnutt V. Asheuden, 
 Alsop i\ Price, 
 Anderson v. Haytnan, 
 
 V. Thornton, 
 
 Andrews v. Lawrence, 
 
 . V. Smith, 
 
 Angrove v. Tippett, 
 Anstey v. Harden, 74-, 108, 
 
 Antrobus v. Davidson, 
 Ardern v. Rowney, 
 i^lington V. Merricke, 
 Armitage v. Baldwin, 
 Arundel Bank v. Lobbe, 
 Ashlin V. "White, 
 Astlee V. Reynolds, 
 Atlee V. Backhouse, 
 Augero v. Keen, 
 Austen v. Baker, 
 Austin V. Howard, 
 
 Backhouse v. Hall, 
 Backworth v. Young, 
 Bacon v. Chesney, 
 Badcock i\ Samuel, 
 Badenall v. Samuel, 
 Bagster v. Portsmouth, 
 Bailey r. Edwards, 
 
 
 319 
 
 Bailey v. Sweeting, 
 
 
 205 
 
 
 235 
 
 Bain r. Cooper, 
 
 
 38 
 
 5 
 
 >, 99 
 
 Bainbridge». Wade, 59, 186 
 
 ,187 
 
 215 
 
 
 3 
 
 Baker v. Cartwright, 
 
 
 10 
 
 
 352 
 
 r. Bering, 
 
 
 204 
 
 
 303 
 
 Ball V. Dunsterville, 
 
 
 203 
 
 
 227 
 
 Bamford r. lies. 
 
 
 256 
 
 380 
 
 438 
 
 Bampton v. Paulin, 84, 
 
 146, 
 
 173 
 
 re. 
 
 305 
 
 Bank of Hindustan, China 
 
 & Japan 
 
 378 
 
 379 
 
 re (see Harrison's Case). 
 
 
 
 
 313 
 
 v. Smith, 
 
 294, 
 
 377 
 
 
 325 
 
 Bank of Irelaud i\ Beresford, 
 
 407 
 
 
 323 
 
 Barber v. Fox, 
 
 
 129 
 
 
 207 
 
 Barclay v. Lucas, 283, 
 
 288 
 
 294 
 
 24,5 
 
 384 
 
 Bardswell v. Lydell, 
 
 
 236 
 
 212 
 
 250 
 
 Barker v. Parker, 
 
 
 286 
 
 
 303 
 
 Barned's Banking Co., re. 
 
 
 305 
 
 
 127 
 
 Barrel! v. Trussell, 
 
 22, 
 
 173 
 
 
 270 
 
 Bartlett v. The Att'y-Gen., 
 
 
 268 
 
 
 379 
 
 Barwick v. English Joint Stock 
 
 
 85 
 
 Bank, 
 
 48, 
 
 278 
 
 
 318 
 
 Bastow V. Bennett, 
 
 245, 
 
 384 
 
 169, 
 
 170, 
 
 Batard r. Hawes, 337, 
 
 344, 
 
 349 
 
 
 171 
 
 Batchelor v. Lawrence, 
 
 
 347 
 
 
 308 
 
 Bateman'v. Phillips, 
 
 186, 
 
 188 
 
 
 148 
 
 Bateson r. Gosling, 400, 
 
 404, 
 
 405 
 
 255, 
 
 272 
 
 Batson v. King, 
 
 59 
 
 100 
 
 
 328 
 
 V. Spearman, 
 
 
 219 
 
 
 408 
 
 Beardmore v. Couttenden, 
 
 
 331 
 
 
 43 
 
 Beavan v. Macdonnell, 
 
 
 10 
 
 
 14 
 
 Bechervaise v. Lewis, 325, 
 
 326, 
 
 432 
 
 
 14 
 
 Behn v. Kemble, 
 
 
 43 
 
 
 262 
 
 Belfast Banking Co. v. Stanley, 
 
 218 
 
 123, 
 
 128 
 
 Belfour v. Sea, etc. Assurance 
 
 Co. 
 
 
 224 
 
 Bell V. Bament, 
 
 27, 
 
 note 
 41 
 
 233 
 
 281 
 
 r. Banks, 
 
 
 408 
 
 
 205 
 
 V. Free, 
 
 
 350 
 
 
 395 
 
 V. Walsh, 
 
 
 32 
 
 
 412 
 
 Bellairs v. Ebsworth, 298, 
 
 301, 
 
 397 
 
 
 408 
 
 Belshaw v. Bush, 
 
 
 311 
 
 
 10 
 
 Bentham v. Cooper, 
 
 
 184 
 
 407 
 
 417 
 
 Beresford, ex parte, 
 
 
 3
 
 xlii 
 
 ENGLISH CASES CITED. 
 
 Bcvan, t\r paite, 
 Bino-liam r. Corbett, 
 Bird V. Boulter, 
 
 r. Gammon, 
 
 ^irkmyr v. Daraell, 
 
 Black V. Ottoman Bank, 
 
 Blake v. White, 
 Blest V. Brown, 325, 
 Blore T. Sutton, 
 Bloxam, ex parte, 
 Bluok v. Gompertz, 
 Boalcr r. Mayor, 
 Bodenham v. Purclias, 
 Boehm v. Campbell, 
 Bonar i\ Macdouald, 
 Bonsor v. Cox, 
 
 332 I 
 
 413 i 
 
 193 1 
 
 91 t 
 
 63, 67, 69, 70, i 
 
 115, 123' 
 
 410' 
 
 408, 410 
 
 396, 408 I 
 
 189, 205 1 
 
 407, 
 375 
 
 Caballero v. Slater, 
 Calvert t. London Dock Co 
 
 Capel i\ Butler, 
 Carne, c.v pavtc^ 
 Carpenter, ex parte, 
 Carrington v. Roots, 
 Carstairs. ex parte, 
 Cary v. Dawson, 
 Castling v. Aubert, 
 
 181 
 390, 
 408 
 438 
 332 
 319 
 41 
 400, 40G 
 353 
 98, 135, 136, 
 
 206 
 390, 398, 418 
 431 
 189 
 269 
 223 
 
 Boultbee v. Stubbs, 324, 400,410, 418 
 
 Bovill ?;. Turner, 
 Bowker ». Bull, 
 Boyd V. Brooks, 
 
 v. Moyle, 
 
 «. Robins, 
 
 Bradbui-y v. Morgan, 
 
 Bradford v. Roulstou, 
 Brandon f. Brandon, 
 Brayshaw v. Eaton, 
 Brettel v. Williams, 
 Brickwood V. Anuiss, 
 Brocklebank t. IMoore, 
 Brooks ^'. Rogers, 
 Broom v. Batcbelor, S 
 
 251 
 
 327 
 
 310 
 
 21, 30 
 
 384 
 
 422, 423, 454, 
 
 425 
 
 206 
 
 326 
 
 16 
 
 198, 206 
 
 408 
 
 384 
 
 318 
 
 32, 83, 
 
 30, 
 
 Brown v. Joddrell, 
 
 X. Lee, 
 
 Browne v. Carr, 
 Browning v. Morgan, 
 Bruuton «. Dallas, 
 BiTitton V. Burton, 
 Biyant v. Christie, 
 Bucher v. Camayer, 
 Buckmyr v. Darnell (see Birk 
 
 myr «. Darnell). 
 Bullock T. Lloyd, 
 Bunn f. Guy, 
 Burgess «, Eve, 
 
 179, 214 
 10 
 337, 349 
 401, 407 
 111 
 
 144, 153, 156, 168, 169, 170, 172 
 Caton ('. Caton, 203 
 
 Chahiiers t\ Victors, 212, 215, 249 
 Champion t. Plummer, 187 
 
 Chandelor «. Lopus, 43 
 
 Chapman t. Beckington, 289 
 
 r. Sutton, 30 
 
 Chater t. Becket, 54, 56, 75, 191 
 Cheetham «. Ward, 407 
 
 Chichester v. Cobb, 205 
 
 Christie v. Borelly, 222 
 
 Clancy ». Piggott, 123, 142, 143, 17^ 
 
 93 
 
 202 
 316 
 189 
 
 242 
 
 Burghart v. Angerstein, 
 Burke's case. 
 Burn V. Bum, 
 Bushell V. Beavan, 
 Butcher v. Stewart, 
 Butler v. Mulinhill, 
 Buxton V. Rust, 
 
 97 
 
 21 
 
 324, 377, 
 
 385, 434 
 
 16 
 
 403 
 
 202 
 
 59, 92, 95, 187 
 
 33, 34, 106 
 
 12 
 
 206 
 
 Clark V. Alexander, 
 Clarke v. Heuty, 
 
 V. Wilson, 
 
 Clayton's case, 
 Cleman v. Cooke, 
 Clements v. Langley, 
 Clerk «. Devlin, 
 Close V. Close, 
 Coates «. Coatcs, 
 Cockran, in re. 
 Cocks V. Nash, 
 Coe V. Duffield, 
 Colbouru V. Dawson, 
 
 ! Cole t. Dyer, 
 Coleman x. Eyles, 
 Coles X. Pack, 
 
 X. Trecotbick, 
 
 Collen X. Wright, 
 Collins X. Owen, 
 
 X. Prosser, 
 
 Colvin X. Buckle, 
 Combe x. Woulfe, 
 Conkey x. Hopkins, 
 Connerat x. Goldsmith,* 
 Cook X. Lister, 
 Cooke X. Clayworth, 
 
 X. Oxley, 
 
 Cookney, ex parte, 
 Coope V. Twyman, 
 Cooper X. Evans, 
 
 V. Jenkins, 
 
 X. Joel, 
 
 Cooth X. Jackson, 
 
 46 
 
 308, 407 
 
 406 
 
 428 
 
 139 
 
 352 
 
 419 
 
 418 
 
 439 
 
 330 
 
 404 
 
 206 
 
 32, 198 
 
 186 
 
 72 
 
 215, 237, 241 
 
 189, 205 
 
 192 
 
 399 
 
 228, 377 
 
 235, 443 
 
 407, 416 
 
 165 
 
 102 
 
 311 
 
 12 
 
 3 
 
 3 
 
 343 
 
 224, 360 
 
 333 
 
 380 
 
 41
 
 ENGLISH CASES CITED. 
 
 xliii 
 
 Copis V. MidJleton, 
 
 
 338 
 
 Coplestoue, ex ■parte, 
 
 
 320 
 
 Corbett v. Brown, 
 
 
 43 
 
 Couturier v. Hastie, 106, 
 
 168, 
 
 169 
 
 Co well i\ Edwards, 337 
 
 342 
 
 349 
 
 Cow]3er r. Smith, 
 
 400 
 
 403 
 
 Crafts v. Tritton, 
 
 
 314 
 
 Cragoe v. Jones, 
 
 
 402 
 
 Crawford v. Stirling, 
 
 198, 
 
 228 
 
 Craythorne i\ Swinburne, 
 
 337, 
 
 341. 
 
 
 342, 
 
 343 
 
 Creightou v. Rankin, 
 
 
 410 
 
 Cresswell v. Wood, 
 
 
 .-59 
 
 Cripps t\ Hartnall, 
 
 59 
 
 134 
 
 Crisp, ex parte. 
 
 
 336 
 
 Crosby v. Wadsworth, 
 
 
 41 
 
 Cumberlege v. Lawson, 
 
 
 224 
 
 Cummiug c. Ince, 
 
 
 15 
 
 Curling t. Chalkleu, 
 
 
 260 
 
 Currey v. Armitage, 
 
 
 404 
 
 Curry ®, Edensor, 
 
 208 
 
 434 
 
 Cutler v. Southern, 
 
 
 22(>. 
 
 Cuxon V. Chadley, 
 
 
 109 
 
 Dance v. Girdler, 
 
 
 296 
 
 Dangerfield «. Thomas, 
 
 
 38 
 
 Darnell t. Watt, 
 
 
 104 
 
 Davey v. Phelps, 
 
 
 397 
 
 V. Prendergrass, 
 
 
 409 
 
 Davidson v. Cooper, 
 
 377, 
 
 379 
 
 *. McGregor, 
 
 
 400 
 
 Davies ». Humphreys, 310, 
 
 311, 
 
 313, 
 
 318, 337 
 
 ,341 
 
 354 
 
 v.. Stainbank, 
 
 
 407 
 
 Davis V. Kirkenwall, 
 
 
 10 
 
 Dawson v. Lawes, 376 
 
 410 
 
 434 
 
 De Best n. Thompson, 
 
 206 
 
 207 
 
 Defiies ». Smith, 
 
 
 421 
 
 Denton t-. Great Northern Ry. Co. 8 
 
 Dering t. Winchelsea, 337 
 
 339, 
 
 343 
 
 Devaux «. Steinkeller, 
 
 
 46 
 
 Dixon v. Broomfielcl, 
 
 
 191 
 
 in. Hatfield, 
 
 86, 
 
 122 
 
 Dobell V. Hutchinson, 
 
 
 206 
 
 Dobie \\ Mayor of Berwick (see 
 
 
 Oswald V. Mayor of Berwick). 
 
 
 Dr. Lej-field's Case, 
 
 
 39 
 
 Dowbiggan v. Bourne, 
 
 
 328 
 
 Drew V. Lockett, 
 
 330 
 
 331 
 
 Dry t\ Davy, 
 
 
 296 
 
 Duffield T. Scott, 
 
 
 316 
 
 Duffy V. Orr, 
 
 
 400 
 
 Duncombe v. Lowndes, 
 
 197, 
 
 199 
 
 V. Tickridge, 
 
 
 102 
 
 Dunlop V. Higgius, 
 
 
 3 
 
 Dunmore (Countess of) i\ Alexander, 3 
 Dunn V. Slee, 339 
 
 Dutchman i\ Tooth. 35 
 
 Earle v. Oliver, 323 
 
 Eastern Union Ry. Co. v. Cochrane, 
 
 297 
 Eastwood V. Kenyon, 25, 35, 37, 05. 
 • 99, 130, 134, 136 
 Edgar v. Knapp, 338 
 
 Edge 1'. Frost, 120, 225 
 
 Edwards i\ Baugh, 35 
 
 V. Jeveus, 33, 179, 186, 215 
 
 t'. Kelly, 79, 80, 81, 84, 140, 
 
 173 
 Eo-erton «. Mathews, 176 
 
 Elkins V. Heart, 26, 95, 154 
 
 Elworthy v. Maunder, 221 
 
 Emmerson v. Heelis, 189 
 
 Emmet i\ Dewhurst, 74, 108, 223, 
 
 387 
 Emmett v. Kearns, 184, 189 
 
 Em^jston v. Knowles, 20 {note) 
 
 English V. Darley, 407, 408, 439 
 
 Era Life Ins. Society, re, 203 
 
 Evans v. Bremiidge, 223, 406 
 
 V. Earle, 214 
 
 ». Whyle, 211, 396 
 
 Ewart t. Latta. 330 
 Exall «. Partridge, 310, 313 
 Eyre v. Barthrop, 407 
 V. Everett, 360, 410 
 
 Fairlie v. Denton, 109 
 
 Fallowes %\ Taylor, 21 
 
 Farebrother «. Simmons, 193 
 
 ®. Wodehouse, 327 
 
 Farmer «. Robinson, 190 
 
 Fell V. Goslin, 228 
 
 Fish «. Hutchinson, 91 
 
 Fisher v. Bridges, 21 
 
 Fishmongers' Co. v. Maltby, 373 
 Fitzgerald «. Dressier, 59, 137, 144, 
 
 145, 147, 169 
 
 Fitzmaurice v. Bayley, 190 
 
 Fleetwood «. Charaock, 337 
 
 Fletcher v. Grover, 355 
 
 Ford y. Beech, 214 
 
 v. Stobridge, 313 
 
 Forth V. Stanton, 138, 141, 156 
 
 Foster t. Charles. 43 
 
 Frank %\ Edwards, . 25G 
 
 Eraser v. Jordan, 413 
 
 Freeman t. Cooke, 8 
 
 French v. French, 22, 25
 
 xliv 
 
 ENGLISH CASES CITED. 
 
 Fricker v. Thomlinsoii, 
 
 Gall r. Comber, 
 Gammon v. Stone, 
 Gardom, ex parte, 
 Garrett v. Handley, 
 Gaunt V. Hill, 
 Gedge v. Matson, 
 Gee (•. Pack, ' 
 
 41 
 
 163 
 
 328 
 
 inC), 200, 303 
 
 188, 215, 394 
 
 3 
 
 328 
 
 233, 236 
 
 General Steam Navigation Co. r. 
 Rolt, 390 
 
 GibI)ons v. :M'Casland, 37, 208 
 
 Gibson v. Holland, 198, 205 
 
 Giflford, ex parte, 337, 339, 400, 406, 
 408, 418 
 Gillett V. Rippon, 235, 316, 348 
 
 Glendinning, ex parte, 400, 408, 418 
 Glover v. Halkett, 207 
 
 Glyn V. Hertel, 213, 394 
 
 Gobell V. Archer, 190 
 
 Gobrie v. Woodley, 205 
 
 Goddard v. Vanderheyden, 318 
 
 Whyte, 
 Godwin v. Francis, 
 Goldshede v. Swan, 
 
 326 
 205 
 32, 34, 179, 
 186, 215 
 92 
 106, 177 
 385, 389 
 122, 124 
 214 
 
 Good V. Cbeeseman, 
 Goodman v. Chase, 
 Gordon i\ Calvert, 
 
 t'. ]Martin, 
 
 r. Rae, 214, 233 
 
 Gore V. Gibson, 12 
 
 Goring t\ Edwards, 318 
 
 Gosbell v. Archer, 205 
 
 Grant v. Campbell, 4 
 
 Gray v. Warren, 11 
 
 Graythome i\ Swinburne, 326 
 
 Greaves, re, 52 
 Green v. Creswell, 59, 100, 133, 134 
 
 1). Wynn, 313 
 
 Greenough v. M'Clelland, 407, 417 
 
 Gregory v. Williams, 131 
 
 Guardians of Lichfield Union r. 
 
 Green, 426 
 Guardians of Portsea Island Union 
 
 V. Whillier, 263 
 
 Guardians of Stokesley Union t. 
 
 Strother, 373 
 
 Gull v. Lindsay, 142 
 
 Haigh t\ Brooks, 33, 35, 179, 184, 
 208, 213 
 Hall V. Hutchons, 406 
 
 Hamilton r. Watson, 367 
 
 Hammersley v. Baron de Biel, 206 
 
 Hands i\ Slaney, 
 Hardwick r. Wright, 
 Hare r. Richards, 
 Hargreave r. Smee. 
 Hargreaves v. Parsons, 130, 
 
 Harris v. Fane, 
 
 T. Fawcett, 
 
 V. Huntbach, 
 
 V. Venables, 
 
 Harrison's Case, 
 Harrison v. Jackson, 
 
 V. Seymour, 
 
 Hartley v. O'Flaherty, 
 Harvey, ex parte, 
 
 V. Kay, 
 
 Hasleham v. Young, 
 Haslock V. Ferguson, 
 Hassell v. Long, 
 Hastie v. Couturier, 
 Hawes v. Armstrong, 
 Hawkins v. Bone, 
 
 «. Holmes, 
 
 Hawkshaw v. Parkins, 325, 
 Hawtaine i\ Bourne, 
 Hayes i'. Ward, 218, 
 
 Haymen i\ Gover, 
 
 Head v. Diggon, 
 
 Heath v. Key, 
 
 Hebb's Case, 
 
 Heffield v. Meadows, 214, 
 
 Hemming v. Perry, 
 
 r. Trenery, 
 
 Heyman v. Dubois, 
 Hijrgins v. Senior, 
 Hill r. Nuttall, 
 Hitchcock V. Hicks, 
 
 V. Humfrey, 
 
 Hitchman v. Stewart, 
 Hoad V. Grace, 33, 179, 
 Hoare v. White, 
 Hobson V. Bass, 
 Hodgson v. Anderson, 109, 
 
 V. Shaw, 
 
 HoflFham v. Foudrinier, 
 Holbrow V. Wilkins, 
 Hole «. Harrison, 
 Holl V. Brown, 
 
 1\ Hadley, 217,411, 
 
 Holland v. Eyre, 
 
 V. Teed, 
 
 Holmes v. Mitchell, 
 Holt V. Ward, 
 Hooper v. Marshall, 
 Hope, ex parte, 304, 333, 
 
 16 
 
 442 
 
 200 
 
 212, 248 
 
 132,134, 
 
 136 
 
 16 
 
 327, 328 
 
 101 
 
 29 
 
 233 
 
 203 
 
 395 
 
 345 
 
 404 
 
 103 
 
 199, 200 
 
 43 
 
 259, 385 
 
 166 
 
 • 184 
 
 12 
 
 205 
 
 360, 407 
 
 200 
 
 308, 324 
 
 9 
 
 3 
 
 407 
 
 3 
 
 215, 239 
 
 206 
 
 221 
 
 323 
 
 190 
 
 173 
 
 98 
 
 220, 248 
 
 274 
 
 215, 248 
 
 320 
 
 331 
 
 110, 144 
 
 310, 326 
 
 303 
 
 218, 220 
 
 350 
 
 436 
 
 416, 444 
 
 3 
 
 290 
 
 178 
 
 17 
 
 400 
 
 334, 335
 
 ENGLISH CASES CITED. 
 
 xh 
 
 Hope V. Cast, 194 
 
 Hornby v. Lacy, 163 
 
 Home r. Ramsdale, 224 
 
 Horsey r. Graham, 206 
 
 Hotham r. Stoue, 326, 328 
 
 Hough v. Warr, 385 
 Houlditch v. Mihie, 78, 140, 142, 171 
 
 Houston, ex parte, 332 
 
 Howell T. Jones, 407, 414 
 
 Howes -v. Nash, 97 
 
 Huber v. Steiner, 53 
 
 • Hubert v.' Moreau, 204 
 
 V. Treherne, 204 
 
 Hulme r. Coles, 419 
 
 Huugerford v. Huugerford, 313 
 
 Hunt V. Bate, 25 
 
 Huntley v. Sanderson, 310 
 
 Hutchinson v. Sidney, 229 
 
 Hyde v. Johnson, 46 
 
 T. Wrench, 3 
 
 International Contract Co., re, 315 
 
 Isaac V. Daniel, 407 
 
 Israel v. Douglas, 109 
 
 Jackson v. Lowe, 205, 206 
 
 V. Magee, 331 
 
 Jacob V. Kirk, 205 
 
 James t\ Isaacs, 311 
 
 v. Williams, 183, 184 
 
 Jarmaiu v. Algar, 135, 157 
 
 Jarvis v. Wilkins, 183 
 
 Jay V. Warren, 412 
 
 Jenkins v. Reynolds, 145 
 
 V. Robinson, 420 
 
 Johnson, ex jxirte, 321, 331, 336 
 
 i\ Barratt, 400 
 
 i\ Dodgson, 204 
 
 V. Gilbert, 165 
 
 V. King, 3 
 
 V. Medlicote, 12 
 
 V. Whitchcott, 26 
 
 Johnston v. Nichols, , 25, 30, 34 
 
 Jones V. Broadhurst, 311 
 
 13. Cooper, 112, 113, 114 
 
 «. Davids, 328, 329 
 
 «. Fleming, 226 
 
 v. Williams, 206 
 
 Kay I', Groves, 252 
 
 V. Smith, 17 
 
 Kearsley v. Cole, 400, 403, 404, 418 
 
 Keate v. Temple, 123, 124, 191 
 
 Kelner v. Baxter, 191 
 
 Kemp V. Balls, 311 
 
 337, 349 
 
 326 
 
 31, 
 
 Kemp r. Findon, 
 Kendall, ex pnrte, 
 
 Kennaway v. Treleavcn, 5, 31, 184 
 Kennedy t\ Lee, 3 
 Kepp r.'Wiggett, 332 
 Ker V. Mitchell, 220 
 Keyles v. Elkins, 400 
 Kimball v. Newell, 102 
 King f. Baldwin, 324 
 Kipling t\ Turner, 295 
 Kirby v. Duke of Marlborough, 252 
 Kirk V. Bell, 203 
 Kirkham v. Marter, 63, 64, 90, 91 
 Kitson i\ Julian, 257 
 Kittier t\ Raynes, 320 
 Knight v. Crockford, 204 
 'i\ Hughes, 348, 349 
 
 109 
 
 363, 
 
 Lacy V. McNeile, 
 Lancaster v. Walsh, 
 Lane, ex parte, 
 
 V. Burghart, 
 
 Langdale v. Parry, 
 Laurie v. Scholefielcl, 
 Lavery v. Turley, 
 Lawder ». Simpson, 
 Lawrence v. Walmsley, 
 Lawson v. Wright, 
 Layer i\ Nelson, 
 Laythoarp v. Biyaut, 
 Eeadley v. Evans, 
 Leathley v. Spyer, 
 Le Blanche v. Wilson, 
 Lee V. Brook, 
 
 v. Jones, 
 
 t\ Muggeridge, 
 
 Leigh V. Taylor, 
 
 Leith Banking Co. v. Bell, 
 
 Leroux I'.Tferown, 
 
 Levrick v. Meigs, 
 
 Levy 'i\ Baker, 
 
 Lewis, ex parte, 
 
 V. Nicholson, 
 
 V. Smith, 
 
 Lexington v. Clarke, 
 
 Lightfoot V. Heron, 
 
 Lilly V. Hewett, 
 
 Littlefield v. Shee, 
 
 Littlejohn, ex parte 
 
 Liverpool Borough Bank v. Logan, 
 
 332 
 Liverpool Borough Banking Co. 
 
 V. Eccles. 1 89 
 
 Liverpool Waterworks v. Atkin- 
 son, • 255 
 
 108 
 
 106 
 
 401 
 
 215, 233, 238 
 
 53 
 
 373 
 
 417 
 
 842, 350, 351 
 
 338 
 
 41, 176 
 
 279, 291 
 
 215, 299 
 
 316 
 
 308 
 
 3, 374 
 
 35, 36 
 
 233 
 
 373 
 
 41, 53 
 
 163 
 
 10 
 
 304 
 
 192 
 
 234 
 
 55, 57, 78 
 
 12 
 
 209, 218 
 
 35 
 
 304
 
 ENGLISH CASES CITED. 
 
 Liversieg r. Broadbent, 109 
 
 Lobb V. Stanley, 203, 205 
 
 Lockliart v. Barnard, 3 
 
 T. Rcilly, 330 
 
 Loder's case, oOG 
 
 London Assurance Co. r. Bold, 397 
 
 f . Buckle, 
 
 317, 408, 410 
 London, Brighton and South Coast 
 
 Rail. Co. V. Goodwin, 297 
 
 London & N. W. Rail. Co. v. 
 
 Whinray, 277 
 
 Longfellow t. Williaras, 308 
 
 Loosemore v. Radford, 313 
 
 Lovatt V. Tribe, 10 
 
 Love's case, 81, 13G, 145, 170, 172 
 Lowry r. Lumbermere's Bank, 317 
 Lyde v. Barnard, 42, 43, 45 
 
 Lyon V. Holt, 413 
 
 V. Lamb, 25, 180 
 
 Lysaght v. Walker, 31, 184 
 
 275 
 
 272 
 
 M'Blain v. Cross, 
 
 
 305 
 
 M'Dougal V. Paton, 
 
 
 320 
 
 M'Gahey v. Alston, 
 
 
 280 
 
 M'lver V. Richardson, 
 
 
 3 
 
 M'Millan, ex parte 
 
 
 303 
 
 Macroiy i\ Scott, 
 
 53, 
 
 155, 206 
 
 Macintosh t. AVyatts, 
 
 
 360 
 
 Maclean v. Dunn, 
 
 
 190 
 
 MacTaggart «. Watson 
 
 376, 
 
 410, 434 
 
 Mactier v. Frith, 
 
 
 3 
 
 Maggs V. Ames, 
 
 
 105, 107 
 
 Mallet V. Bateman, 
 
 38, I 
 
 »9, 60. 93 
 
 Mailing Union v. Grah 
 
 am. 
 
 366 
 
 Manby i\ Scott, 
 
 
 10 
 
 Manley v. Boycott, 
 
 
 417 
 
 Mapes V. Sidney, 
 
 • 
 
 26 
 
 Margetts v. Gregory, 
 
 439 
 
 Marryatts v. White, 
 
 
 429 
 
 Marshall, ex part^, 
 
 
 304 
 
 Martin v. Brecknell, 
 
 
 320, 241 
 
 V. Marshal], 
 
 
 6 
 
 r. Mitchell, 
 
 
 3 
 
 V. Wright, 
 
 
 208, 246 
 
 Mason v. Pritchard, 
 
 
 244, 252 
 
 Mathews v. Baxter, 
 
 
 13 
 
 Matson v. Wharaui, 
 
 
 112, 114 
 
 Mayer v. Isaac, 
 
 133, 
 
 212, 248 
 
 Mayhew v. Crickett, 
 
 38, 
 
 326, 327, 
 
 343 
 
 410, 
 
 419, 439 
 
 Mayor of Berwick v. Mi 
 
 irray 
 
 350,387 
 
 V. Oswald 
 
 270 
 
 Mayor of Birmingham 
 
 V. W 
 
 right. 
 
 • 
 
 
 260 
 
 ^layor of Cambridge v. Dennis, 
 ^Mayor of Dartmouth v. Silly, 
 Maxoiidoff, ex parte (see Oriental 
 
 Commercial Bankj, 
 Meir v. Ilardie, 
 Melville v. Hayden, 
 Merle r. Wells, 
 Metcalf r. Bruin, 
 Middleton v. Brewer, 
 Midland Banking Co. 
 
 bers, 
 Miles, ex parte, 
 Miller v. Long, 
 Mills V. Alderbury Union, 
 
 i\ Fowkes, 
 
 Mines v. Sculthorpe, 
 Minet, ex jmrte, 
 Mockett v. Ames, 
 Moltou V. Camroux, 
 Montague o. Tidcombe, 
 Montefiore v. Lloyd, 
 Moor V. Roberts, 
 iMorgan v. Seymour, 
 Morley v. Boothby, 
 
 V. Inglis, 
 
 Morrice v. Redwin, 
 Morris v. Cleasby, 
 Morten v. Marshall, 
 Mortlock V. Buller, 
 Moses V. Macferlen, 
 Moss V. Hall, 
 
 V. Tribe, 
 
 Mountstephen v. Lakeman, 64, 70, 
 96, 104, 123 
 Mowbray v. Cunningham, 112, 114, 
 115, 130, 123, 161 
 Mozley v. Tinckler, 36 
 
 Mure, ex p)arte, 438 
 
 Murphy v. Glass, 825 
 
 Musket V. Rogers, 212, 437 
 
 Myers, ex parte, 304 
 
 V. Edge, 296 
 
 Napier v. Bruce, 233, 270 
 
 Nares v. Rowles, 232 
 
 Newbui-y ?\ Armstrong, 31, 183 
 
 333 
 434 
 251 
 245 
 291, 295 
 309 
 t". Cham- 
 333, 333, 334 
 3, 335 
 103 
 326, 397 
 428 
 209, 236 
 24, 172, 303, 320 
 34 
 10,12 
 411, 434 
 299, 301 
 221 
 237 
 31, 33, 87 
 33S 
 310 
 158, 163, 164 
 220, 222 
 189 
 44 
 407 
 10 
 
 Newport v, Spirey, 
 ; Newton v. Chorlton, 
 j Nicholson t. Paget, 
 ' v. Revill, 
 
 Nisbet V. Smith, 
 
 Noble V. Ward, 
 
 Noel V. Hart, 
 
 Nolte, ex parte, 
 
 327, 407, 408 
 
 311, 212, 249 
 
 406 
 
 308, 407 
 
 387 
 
 78 
 
 194
 
 ENGLISH CASES CITED. 
 
 xh 
 
 North British Ins. Co. r. Lloyd, 3G3, 
 
 305, 3GG 
 
 North v. Wakefield, 407 
 
 Nottiugham Hide, Skin, Fat, &c. 
 
 Co. V. Eottril, 24G 
 
 Oakeley r. Pashaller, 
 Oastley r. Round, 
 O'Carroirs case. Sir D., 
 Ofiiey & Johnson's case. 
 
 4, 5, 31, 
 
 203, 
 24, 30, 
 
 Oftbrd i\ Davies, 
 
 Ogden V. Aspiuall, 
 
 Ogilvie r. Foljambe, 
 
 Oldershaw v. King, 
 
 Oldham r. Allen, 
 
 Ouge i\ Truelock, 
 
 Oriental Coramercial Bank, 
 
 Oriental Financial Co. v. Over- 
 end Guraey & Co. 407, 417, 
 
 Ornie r. Young, 
 
 Orrell v. Coppock, 
 
 Oswald V. Mayor of Berwick, 
 
 Overseers of St. Martin v. War- 
 ren, 
 
 Owen V. Homan, 863, 
 
 Oxley V. Young, 
 
 407 
 230 
 326 
 338 
 383 
 234 
 206 
 179 
 123 
 350 
 333 
 
 421 
 410 
 151 
 270 
 
 303 
 418 
 436 
 
 Peppin v. Cooper, 
 Perfect v. Musgrave, 
 Peter v. Rich, 
 Peters r. Flemming, 
 Petre v. Buncombe, 
 Petty V. Cooke, 408, 
 
 Phillips V. Astling, 
 
 V. Bateman, 
 
 V. Dickson, 
 
 v_ Foxail, 334, 364, 
 
 314, 
 419, 
 
 010, 
 
 373, 
 377, 
 
 Pace V. Marsh, 187 
 
 Padwick v. Stanley, 308 
 
 Palen v. Field, 331, 331 
 
 Parker v. Rarasbottom, 319 
 
 r. Smith, 205 
 
 V. Wise, 109, 314, 233 
 
 Parkins v. Mora vie, 
 
 Parsons v. Briddock, 336, 328 
 
 V. Walter, 114 
 
 Pasley i\ Freeman, 41, 43 
 
 Pattison r. Guardian of Belford 
 
 Union, 
 Paul V. Jones, 
 Payne v. Cave, 
 
 V. Ives, 
 
 V. Wilson, 
 
 Pearl v. Deacon, 
 Pearsall v. Summersett, 
 Pearse v. Morrice, 
 Pease v. Hirst, 
 
 V. Lowndes, 
 
 Peate v. Dicken, 
 Peckham -v. Faria, 
 Peel V. Tatlock, 
 Peele v. Northcote, 
 Pemberton v. Oakes, 
 Pendleburg v. Walker 
 Penny v. Fox, 
 
 233 
 
 318, 320 
 
 3 
 
 201, 319, 433 
 
 35, 36, 37 
 
 326, 337, 437 
 
 213 
 
 331 
 
 396 
 
 443 
 
 187 
 
 113 
 
 377, 410, 436 
 
 163 
 
 389, 390 
 
 343, 344 
 
 313 
 
 V. Smith, 
 
 Philpot V. Briant, 
 
 Pidcock V. Bishop, 370, 
 
 Pierce v. Williams, 
 
 Pigot's Case, 3T7, 318, 
 
 Piilan i\ Van Mierop, 
 
 Pitt V. Purssord, 341, 
 
 V. Smith, 
 
 Place V. Delegal, 
 
 Pledge i\ Buss, 836, 337, 366, 
 
 Plomer v. Long, 
 ! Plumbe V. Sanday, 
 i Polhill V. Walter, 
 j Poole V. Willats, 
 ! Pooley V. Harradine, 
 
 Pope V. Andrews, 
 
 Popplewell i\ Wilson, 
 
 Powers V. Fowler, 
 
 Prendergast v. Devey, 
 
 Price V. Barker, 
 
 V. Edmonds, 413, 
 
 V. Kirkham, 
 
 V. Richardson, 
 
 Primrose v. Bromley, 
 Prior V. Hembrow, 
 Propert v. Parker, 
 Pugh V. Stringfield, 
 Pybus «. Smith, 
 
 356 
 410 
 
 350 
 16 
 350 
 438 
 433 
 177 
 330 
 376 
 435 
 331 
 
 371 
 316 
 379 
 
 33 
 343 
 
 13 
 337. 
 439 
 439 
 326 
 
 43 
 400 
 407 
 5 
 178 
 184 
 414 
 403 
 414 
 410 
 187 
 344 
 344 
 203 
 226 
 
 Raikes r. Todd, 186, 332 
 
 Railtou V. Mathews, 364 
 
 Rains v. Story, 126 
 
 Ramsgate Victoria Co. v. Montefiore, 
 
 Ranelagh ». Hayes, 
 Rann v. Hughes, 
 Read v. Legard, 
 
 v. Nash, 
 
 Reade v. Lamb, 
 
 V. Lovmdes, ' 
 
 Reader v. Kingham, 
 Rede v. Farr, 
 Redhead v. Cater, 
 Rees V. Berrington, 
 
 216, 217, 308 
 
 178 
 
 10 
 
 63, 88, ,90, 92 
 
 41 
 
 420 
 
 59, 131 
 
 218 
 
 206 
 
 407
 
 xlviii 
 
 ENGLISH CASES CITED. 
 
 Bein v. Lane, 208 
 
 Revnokls v. AYheeler, 337 
 
 Ridijwrtv r. Wharton, 206 
 Ridlev ;■" Plvmouth Grinding Co. 203 
 
 Roach V. Thompson, 310, 348 
 
 Robinson v. Wilson, 326, 328 
 
 Roe i-. Haugh, 139 
 
 Rolt r. Cozens, 23, 220 
 
 Rose r. Poulton, 21 
 
 Ross i'. Moss, 26. 27, 28, 29 
 
 Routledge ». Grant, 3 
 
 Rucker v. Camayer, 189 
 
 Rushforth, ex parte, 321, 326, 331 
 
 Russell V. Moseley, 30, 186 
 
 Ryder v. Wombwell, 16 
 
 Sackford v. Case, 26 
 
 St. Saviour's v. Bostock, 259 
 
 Samuel v. Howarth, 230, 325, 360, 
 408,410 
 382 
 324, 389, 392, 
 39 i, 435 
 194, 199, 206 
 260 
 
 Simpson t. Penton, 
 V. Vaughan, 
 
 Simson r. Cooke, 
 
 Skeate v. Beale, 
 
 Skiflfer v. Wray, 
 ' Skillett V. Fletcher, 
 j Small V. Currie, 
 
 122 
 
 344 
 
 302 
 
 14 
 
 308 
 
 267, 273 
 
 8, 13, 325, 368 
 
 *Sanderson, ex parte, 
 V. Aston, 
 
 Saudilands v. M^rsh, 
 
 Sansom v. Bell, 
 
 Saunders t. Wakefield, 22, 177, 187 
 
 Saunderson v. Jackson, 204, 205, 207 
 
 Schneider v. Norris, 205 
 
 Scholefield v. Templer, 402 
 
 Scholes V. Hampsou and another, 121 
 
 Scott i\ Knox, 
 
 
 326 
 
 «. Littledale, 
 
 
 9 
 
 Selby V. Selby, 
 
 
 204 
 
 Seller -v. Jones, 
 
 
 233 
 
 Semple v. Pink, 
 
 • 
 
 25 
 
 Seijeant, ex 2>nrte, 
 
 
 320 
 
 Sharington v. Pledall, 
 
 
 2 
 
 Sharman i\ Brandt, 
 
 
 193 
 
 Sharp, ex parte. 
 
 
 369 
 
 Shaw r. Thackray, 
 
 
 12 
 
 T. Woodcock, 
 
 
 53 
 
 Sheffield Canal Co. «. 
 
 Sheffield & 
 
 Rotherham Ry. Co. 
 
 
 3 
 
 Shepherd v. Beecher, 
 
 " 376, 
 
 385, 
 
 
 410 
 
 435 
 
 Shippey v. Denison, 
 
 205 
 
 206 
 
 Shirreft" v. Wilks, 
 
 
 194 
 
 Shortrede v. Cheek, 
 
 184 
 
 186 
 
 Sicklemore v. Thistleton 
 
 219 
 
 220 
 
 Simmonds «. Humble, 
 
 
 203 
 
 Simmons t. Keating, 
 
 
 232 
 
 V. Want, 
 
 
 3 
 
 Simons t\ Patchett, 
 
 
 192 
 
 Simpson, ex parte. 
 
 
 304 
 
 V. Manley, 
 
 244 
 
 415 
 
 Smith ®. Bank of Scotland, 372 
 
 v. Compton, 233, 306 
 
 t. Hughes, 7, 8, 9 
 
 ». Neale, 189 
 
 - V. Rudhall, 120 
 
 v. Winter, 408, 419 
 
 Smout V. Ilbery, 192 
 
 Solly V. Forbes, 407 
 
 Solvency Mutual Guarantee Co. v. 
 
 Froame, 383 
 
 Solvency Mutual Guarantee Society 
 
 ®. Freeman, 
 South V. Bloxam, 
 Soutten v. Soutten, 
 Squire v. Whitton, 
 Stadt V. Lill (see Stapp v 
 Stansfield v. Johnson, 
 Stapp V. Lill, 
 Stead V. Liddard 
 Stedmau «. Hart, 
 
 296, 382 
 
 328 
 
 320, 321 
 
 369 
 
 Lill). 
 
 189 
 
 183 
 
 183, 207, 208 
 
 10 
 
 Steele v. Hoe, 32, 186, 212 
 
 Steiglitz V. Eggington, 202 
 
 Stephens, in re (see Barned's Bank- 
 ing Co.) 
 
 V. Pell, 84 
 
 ». Squire, 150 
 
 Stewart v. M'Kean, 391 
 
 Stiff ». Local Board of Eastbournejl 
 
 371 
 Stirling v. Forrester, 340 
 
 Stokes, ex parte, 333 
 
 v. Moore, 204 
 
 Stone V. Compton, 371 
 
 Stow «. Scott, 129 
 
 Strange «. Fooks, 326,438 
 
 V. Lee, 285 
 
 Straton v. Rastall, 438 
 Strong V. Foster, 360, 410, 417 
 Sumner v. Feiryman, 14 
 Swain «. Wall, 326, 343, 350 
 Swan V. Nesmith, 164, 165 
 Swann v. Phillips, 44 
 Sweet ®. Lee, 205 
 Swift ®. Jewsbury, 47 
 «. VVinterbotham, 40, 47 
 
 Tanner v. Moore, 
 Tatlock V. Harris, 
 
 187, 248 
 84
 
 ENGLISH CASES CITED. 
 
 xlix 
 
 Tatton V. Wade, 
 
 43, 43 
 
 Tawney «. Crowther, 
 
 206, 207 
 
 Tayleur «. Wildin, 
 
 249 
 
 Taylor v. Burgess, 
 
 417 
 
 1). Hilary, 
 
 386 
 
 V. Mills, 
 
 318 
 
 Teede v. Johnson, 
 
 401 
 
 Thatcher v. England, 
 
 8 
 
 Thomas v. Cook, 59, 
 
 133, 134, 144 
 
 V. Edwards, 
 
 192 
 
 V. Williams, 
 
 25, 34, 55, 47, 
 
 81, 
 
 140, 148, 174 
 
 Thompson, ex parte, 
 
 304 
 
 V. Lack, 
 
 406, 407 
 
 Thomson v. Davenport 
 
 190, 192 
 
 V. James, 
 
 3 
 
 Thornton v. M'Kewan, 
 
 331. 332 
 
 Tomlinson v. Gell, 
 
 25, 72 
 
 V. Gill, 
 
 67, 76, 140 
 
 Toussaint v. Martinnant, 314, 338 
 
 Traill v. Gibbons, 
 
 224 
 
 Trent Navigation Co. t 
 
 ). Harley, 410, 
 
 
 411 
 
 Tucker v. Laing, 
 
 408, 409 
 
 Turner, ex parte, 
 
 321 
 
 v. Davis, 
 
 339, 346 
 
 Tumley v. MacGregor, 
 
 44, 45 
 
 Tyson v. Cox, 
 
 419 
 
 Underhill v. Horwood, 338, 342 
 
 Union Bank of Manchester v. 
 
 Beech, 403, 419 
 
 University of Cambringe v. 
 
 Baldwin, 302 
 
 Vanderbergh v. Vanderbergh 188 
 Van Sandau v. Corsbie, 323 
 
 Van Wort ik Woolley, 220 
 
 Vernon v. Turley, 412 
 
 « 
 Waddington «. Bristow,# 208 
 
 Wade V. Tatton, 42 
 
 Wain V. Warlters, 175, 176, 177, 182, 
 
 187 
 Wake V. Harrop, 190 
 
 Wakeman v. Sutton, 209 
 
 Walker v. British Guaranty As- 
 sociation, 216 
 
 V. Hill, 81 
 
 V. Taylor, 141, 142 
 
 Wallis «. Swinburne, 319, 352, 353 
 Walter «. Jiimes, 311 
 
 Walton V. Dodson, 188 
 
 «. Mascall, 218, 220 
 
 Wane v. Horwood, 310 
 
 D 
 
 Wank ford v. Wankford, 77 
 
 Warner v. Willington, 205 
 
 Warre v. Calvert, 233, 390 
 
 Warrington v. Furbor, 218, 220, 310, 
 
 313 
 Warwick v. Bruce, 16 
 
 Watkins v. Perkins, 123 
 
 «. Vince, 208 
 
 Watson V. Alcock, 411, 439 
 
 Watts V. Shuttleworth, 432, 436, 438 
 
 Webb V. Hewitt, 
 
 
 404 
 
 V. James, 
 
 
 332 
 
 Welford v. Bea,|^ley, 
 
 
 187, 205 
 
 Wennall v. Adney, 
 
 
 35 
 
 Westhead v. Sproson, 
 
 
 22, 30 
 
 Weston V. Barton, 
 
 
 286 
 
 Wharton v. Mackenzie, 
 
 
 16 
 
 V. Walker, 
 
 
 109 
 
 Wheatley v. Bastow, 
 
 
 439, 440 
 
 Whitcher v. Hall, 
 
 
 396 
 
 White V. Cuyler, 
 
 
 39, 103 
 
 «. Woodward, 
 
 
 30 
 
 Whitfield V. Hodges, 
 
 
 414 
 
 ■». Moojen, 
 
 
 207 
 
 Whiting V. Bprke, 
 Wickham «. Wickham, 
 
 
 342 
 
 
 168 
 
 Wilkinson v. Evans, 
 
 
 206 
 
 Williams v. Byrnes, 
 
 
 187 
 
 V. Carwardine 
 
 
 3 
 
 V. Jukes, 
 
 
 310 
 
 «. Lake, 
 
 
 187, 188 
 
 V. Leper, 80 
 
 81 
 
 84, 140, 
 
 145, 146, 154, 
 
 166, 168, 
 
 
 
 173 
 
 V. Owen, 
 
 
 337 
 
 V. Price, 
 
 
 438, 439 
 
 V. Rawlinson, 
 
 248 
 
 , 373, 430 
 
 V. Wentworth 
 
 ) 
 
 10 
 
 Willis, re, 
 
 
 96, 304 
 
 «. De Castro, 
 
 
 407 
 
 Wilson, exparte, 
 
 
 333, 408 
 
 V. Beavan, 
 
 
 233 
 
 V. Coupland, 
 
 109, 
 
 110, 111 
 
 v. Hart, 
 
 
 190 
 
 V. Marshall, 
 
 
 37, 336 
 
 Wincworth v. Mills, 
 
 
 59, 97 
 
 Woltf V. Kojipel, 
 
 162 
 
 163, 168 
 
 Wood V. Barker, 
 
 25, 30*56 
 
 '0. Benson, 
 
 
 
 V. Dodgson, 
 
 
 319 
 
 V. Priestner, 178, 
 
 212 
 
 , 314, 244 
 
 Woodcock V. Oxford & Worces- 
 
 tershire Banking Co. 
 
 393 
 
 Woodhouse v. Farebrother, 
 
 409 
 
 Wooley v. Jennings, 
 
 
 248
 
 ENGLISH CASES CITED. 
 
 Wright T. Diinnali, 
 
 
 193 
 
 Wyke V. Rogers, 
 
 399 
 
 V. Ilickling, 
 
 
 438 
 
 Wythes v. Laboucliere, 
 
 363, 368 
 
 V. Hunter, 
 
 
 339 
 
 
 
 T. IMorlcy, 
 
 
 326 
 
 Yonge V. Reynell, 
 
 326 
 
 V. Riisseil, 
 
 
 213, 282 
 
 Young ». Hockley, 
 
 318 
 
 T. Sauntk'is, 
 
 
 396 
 
 V. Taylor, 
 
 320 
 
 ■ V. Sirupsou, 
 
 324 
 
 407,410 
 
 
 
 Wulfl"/-. Jaj-, 
 
 
 438, 439 
 
 Zoucli V. Parsons. 
 
 16
 
 THE LAW OF GUAKANTIE8.
 
 i
 
 A TREATISE 
 
 ON 
 
 THE LAW OF GUARANTIES. 
 
 CHAPTEK I. 
 
 INTRODUCTORY. 
 
 A GUARANTY is a Collateral eno-ao-ement to answer 
 
 O O 
 
 for the debt, default, or miscarriage of another person. 
 The person who gives the guaranty is called the surety 
 or giiarantor ; the person to whom it is given is called 
 the creditor or guarantee '^ and the person whose debt, 
 default or miscarriage is the foundation of the guaranty, 
 is called \\\q 'principal dehtor, or simply, the priricipal. 
 
 The contract of guaranty is of very ancient date, and 
 appears, indeed, to be " coeval with the first contracts 
 recorded in history."^ It seems that originally the 
 words warranty and guaranty ^ were the same ; " the 
 letter g of the Norman French being convertible with 
 the IV of the German and English, as in the names Wil- 
 liam or Guillaume. They are sometimes used indis- 
 criminately ; ^ * but, in general, warranty is applied to a 
 
 ' See Story on the Law of Contracts, " Now spelt guarantee or guarantie. 
 
 4th ed. vol. ii, p. 392, note 1. ^ Not in England. 
 
 * The distinction, as observed in the United States, is sufficiently indi- 
 cated by the following: A guaranty goes with the principal obligation, 
 and is enforceable by the same person who can enforce that. Claflin v. 
 Ostrom, 54 N. Y. 581. 
 
 A guarantor has all the rights of a surety in equity. Any material 
 1
 
 2 THE LAW OF GUARANTIES. 
 
 contract as to the title, quality or quantity of a thing 
 sold • * -^ * and guaranty is held to be the con- 
 tract by wliieh one person is bound to another for the 
 due fulfilment of a promise or engagement of a third 
 party." ^ To constitute a guaranty, just as to the for- 
 mation of any other contract, three things are essential, 
 namely, the mutual assent of two or more parties ; that 
 the parties be competent to contract ; and that the con- 
 tract, if not under seal, be supported by a valuable con- 
 sideration. It will be as well to say a word or two 
 upon each of these essential points, and, in doing this, 
 we will confine our remarks, as far as possible, to one 
 particular kind of contract, namely, the contract of guar- 
 anty, since it is w^ith that we are immediately concerned. 
 
 ' Parsons' Law of Contracts, 5tli ed. vol. ii, p. 3. 
 
 variation of the contract, either before or after a breach, or time given to 
 a principal, vpill discharge a surety. Meiswinkle i\ Jung, 30 Wis. 361. A 
 surety cannot claim to be a guarantor at law. Weed v. Grant, 30 Conn. 74 ; 
 Peake r. Darwin, 25 Vt. 28 ; Carter r. .Tones, 5 Ired. (N. C.) 193. A guar- 
 antor is an individual contractor, and must answer only in default of his 
 principal. He is entitled to notice of such default. This is not the rule 
 in respect to a surety, McMillan v. Bull's Head Bank, 32 Ind. 11. A 
 guarantor cannot have a remedy in equity where his remedy at law is 
 adequate. Jarman v. Wiswall, 24 L. J. Eq. 267. 
 
 Sureties are never responsible beyond the terms of their undertakings. 
 Presumptions and equities are never allowed to enlarge or change their 
 legal obligations. Leggett «. Humphreys, 21 How. (L^. S.) 66. Nor will 
 a court of equity enforce a liability against a surety where he is not held 
 at law. Leffingwell v. Freyer, 21 Wis. 392. 
 
 The liability of a guarantor is accessory to and in general measured by 
 that of the principal. Smith v. Rogers, 14 Ind. 224; 3Iiller v. Stewart, 9 
 Wheat. 680. And whatever discharges the jirincipal, discharges the 
 guarantor. 
 
 The surety is bound with his principal as original guarantor, and his 
 obligation to pay is equally absolute, irrespective of any notice of the 
 principal's default ; while a guarantor is an individual contractor, to answer 
 only for the consequences of the default of the principal, and therefore 
 entitled to notice of such defaults. McMillan v. Bull's Head Bank, 33 
 Ind. 11; 2 Amer. 328.
 
 INTRODUCTORY. 3 
 
 First^ then, as to the mutual assent of the j-tarties. 
 
 Every contract concludes a concurrence of intention 
 in two parties, one of whom promises something to the 
 other, who, on his j^art, accepts such promise.^ * Until, 
 therefore, such acceptance is given, the promisor is not 
 liable.^ In accordance with this doctrine, it has been 
 decided, that a mere offer to guarantee is not binding 
 until acceptance by the person to whom the offer is 
 raade.^ f Till then, it is revocaUe by the. party making 
 
 ' Pothier on the Law of Obligations lop *'. His^gins, 1 H. L. 381 ; Mactier v. 
 
 (Evans' edition), vol. i, p. 4. Frith, 6 Wendell, 103, and judgment of 
 
 * See generallii on this subject, Head Mr. Justice Marcy in that case ; Payne 
 
 V. Diggon, 3 M. & Ry. 97; Adams v. ?'. Cave, 3 T. R. 148; Ramsgate Victoria 
 
 Lindsell, 1 B. & Aid. 681 ; Cooke v. Co. Limited v. Montefiore, L. K. 1 Exch. 
 
 Oxley, 3 T. R. 653 ; Williams v. Car- 109; ex parte Rloxam, 33 L. J. Ch. 574; 
 
 wardine, 4 B. «fe Ad. 621 ; Routledge v. ex parte Cooknev, 28 L. J. Ch. 12 ; 3 De 
 
 Grant, 4 Bing. 653 ; 1 M. & Payne, 717 ; G. & J. 170 ; ez parte Miles, 34 L. J. Ch. 
 
 Denton v. Great Northern Ry. Co. 5 Ell. 123 ; ex parte Beresford, 2 Mac. & G. 
 
 <fe Bl. 860 ; Thatcher v. England, 3 C. B. 197 ; Hebb's case, L. R. 4 Eq. 9 ; Mar- 
 
 254; Lancaster v. Walsh, 4 M. & W. tin ;■. Mitchell, 2 Jac. & W. 413, 428; 
 
 16 ; Lockhart u. Barnard, 14 M. & W. Countess of Dunmore v. Alexander, 9 
 
 674; Kennedy v, Lee, 3 Mer. 441, 454; Shaw <fe Duiilop, 190. 
 Joknson v. King, 2 Bing. 270; Holland ^ Mclvor v. Richardson, 1 M. & S. 
 
 V. Eyre, 2 Sim. & St. 194 ; The Sheffield 557 ; Simmons v. W^ant, 2 Stark. 371 ; 
 
 Canal Co. v. The Sheffield and Rother- Gaunt v. Hill, 1 Stark. 10 ; Mozley v. 
 
 ham Ry. Co. 3 Ry. t Canal Cases, 121 Tinckler, 1 Cr. M. & R. 692; 5 Tyrr. 
 
 and 486 ; Hyde v. Wrench, 3 Beav. 334 ; 416 ; ]S?ewport v. Spirey, 7 L. T. ]Sf. S. 
 
 Thomson v. James, 18 Dunlop, 1 ; Dun- 328. 
 
 * A safe rule of construction is to give the instrument that effect which 
 shall best accord with the intentions of the parties, as manifested by its 
 terms, taken in connection with its subject-matter, neither enlarging- the 
 words beyond their natural import in favor of the creditor, nor restrictino- 
 them in aid of the guarantor, Menard v. Scudder, 7 La. An, 385 ; Crist 
 V. Burlingame, 63 Barb, Sol. 
 
 If the guaranty does not express the intention, courts of equity will 
 reform it. Olmstead v. Olrastead, 38 Conn. 309. 
 
 t Lee ■'». Dick, 10 Pet, 482; Norton v. Eastman, 4 Greenl, (Me.) .'JSl; 
 Adams v. Jones, 13 Pet, 207; Tuckerman r. French, 7 GreenL (Me.) 11.5; 
 Kay V. Allen, 9 Penn. St. 330; Cremer v. Higginson, 1 Mason, 328; 
 Howe V. Nickels, 32 Me. 175; Hill v. Calvin, 4 How, (jVIiss,) 231; Taylor. 
 i\ Wetmorc, 10 Ohio, 490; Lavvson v. Towncs, 3 Ala. 373; 3Iussey v. 
 Rayner, 23 Pick, 323 ; Wildes i\ Savage, 1 Story, 22 ; Walker t. Forbes, 
 25 Ala, 139. Bickford ». Gibbs, 8 Cush, (Mass.) 154, was to the effect that 
 the guarantor may waive such notice in his guaranty. 
 
 The following cases hold that notice of the acceptance of the guaranty
 
 THE LAW OF GUARANTIES. 
 
 it.^ It is not, as a rule, necessary, however, that the 
 acceptance slioiikl T)e express / it may be implied. Thus, 
 
 1 Offord V. Davies, 12 C. B. N. S. 748 ; Grant v. Campbell, 6 Dow, II. L. C. 239. 
 
 is necessary : Oaks v. Wcllcr, 13 Vt. 110 ; Douglas «. Reynolds, 7 Pet. 113 ; 
 Cunningham r. Jones, 12 Pet. 29G ; Bell ». Kellar, 13 B. Men. (Ky.) 381 ; Fay 
 V. Hall, 25 Ala. 704 ; Lowry v. Adams, 22 Vt. (7 Wash.) 160. Allen v. Pike, 3 
 Gush. (Mass.) 288, held that on a general guaranty, acceptance thereof must 
 be proved, together with the extent and terms of the credit given on the 
 faith of the guaranty. Kincheloe v. Holmes, 7 B. Mon. (Ky.) 5 ; Kay ®. Allen, 
 9 Penn. St. 300 ; Walker ». Forbes, 25 Ala. 139, held that, except when the 
 agreement to accept is contemporaneous with the guaranty (as e. g. where it 
 forms the consideration of the guaranty), such notice must be given. See 
 also Wildes v. Savage, 1 Story, 22; Bleeker ®. Hyde, 3 McLean, 279; 
 Union Bank v. Rowmau, 9 La. Ann. 195 ; Fanners' &c. Bank v. Kercheval, 
 2 Mich. 504. 
 
 If the guaranty be that tiie creditor shall be able to collect his debt 
 from a third person, the creditor must use due diligence to notify the 
 guarantor of a non-payment, and within a reasonable time. Foster v. 
 Barney, 3 Vt. 60; Train «. Jones, 11 Vt. 444 ; Clark v. Remington, 11 Met. 
 (Mass.) 361 ; Craft v. Isham, 13 Conn. 28 ; Maguire v. Newkirk, 1 Eng. 
 (Ark.) 142. 
 
 In the following cases, it seems, such notice will not be necessary ; 
 
 Where one undertakes to be guaranty for the act of a third person which 
 is as much within the knowledge of the guarantor as the guarantee. 
 Train v. Jones, vbi supra\ Vanderveer v. Wright, G Barb. (N. Y.) 547. 
 
 Where there is nothing in the nature of the contract, or the terms of 
 the writing, creating or implying the necessity of acceptance or notice as 
 a condition of the guaranty. See Douglas i\ Howland, 24 Wend. 35. 
 
 Where the guaranty is absolute. Id. ; Union Pauk v. Coster's Execu- 
 tors, 3 Comst. 212; Smith v. Dann, 6 Hill (N. Y.) 543; Bright «. Mc- 
 Knight, 1 Sneed (Ten.) 158. 
 
 Where the debtor whose debt was guaranteed becomes insolvent. 
 Beebe v. Dudley, 6 Foster (26 N. H.) 249; Walker v. Forbes, 25 Ala. 139; 
 McClurg V. Fryer, 15 Penn. St. 293 (where it was held that insolvency may 
 be proved by parol or by the record) ; Sandford v. Allen, 1 Cash. (Mass.) 
 473; Gillighanw.Boardman, 29 Maine (16 Shep.) 79; Parker v. Culverston, 
 1 Wallace, Jr. 149 ; Bashford v. Shaw, 4 (Ohio St.) 263. 
 
 In the case of a promissory note neither demand nor notice is neces- 
 sary. Read v. Cutts, 7 Greenl. 18C ; Breed v. Hillhouse, 7 Conn. 523 ; per 
 contra, Green v. Dodge, 2 Hamm. (Ohio) 430 ; Beebe v. Dudley, uU 
 supra. 
 
 Sureties, like all other contracting parties, are bound by their contracts,
 
 INTRODUCTORY. 5 
 
 where an ofter of guaranty is in tliese terms, " I agree 
 to be security to you for T. C. for whatever, while in 
 your employ, you may trust him with, and, in case of 
 default, to make the same good," as soon as the person 
 to whom such a guaranty is given employs T. C. (but 
 not before) the guaranty attaclies and becomes binding 
 on the party who gave it,^ without any formal accept- 
 ance."^ 
 
 In Pope ?'. Andrews,^ Coleridge, J., said, " If a person 
 offers a guaranty, and more still, if he signs a guaranty 
 by which he makes himself liable, and that be sent to 
 the other party, such other party, if he means not to 
 accept the guaranty, is bound expressly to dissent with- 
 in a reasonable time ; and if he keeps the guaranty an 
 unreasonable time, he is bound to accept it just the 
 same as if he had assented to it by words ; and if he 
 
 ' Per Parke, B., in Kennaway v. See also OfFord v. Davies, 12 C. B. N. S. 
 Treleavan, 5 M. & W. 498, 500, 501. US. 
 
 » 9 C. *fe P. 564, 568. 
 
 whether absolute or contingent. Olmstead v. Olmstead, 38 Conn. 309 ; 
 Binsse v. "Wood, 47 Barb, (N. Y.) 624; Fielden v. Lahens, 6 Blatch. 524; 
 Billings V. Sprague, 49 111. 509 ; Getty v. Binnse, 49 N. Y. 385. 
 
 As to who are sureties, and to what circumstances will constitute a 
 contract of suretyship, see Wallace r. Hudson, 37 Tex. 456 ; Unger v. An- 
 derson, 37 Tex. 550 ; Hortou v. Manning, Id. 23 ; Kearnes v. Montgomery, 
 4 West Va. 29 ; and see, also, note *, page 9. 
 
 And as to when parol testimony is admissible to show the relation. 
 McCarterv. Turner, 49 Ga. 309; Yale v. Wheelock, 109 Mass. 503; Hyde 
 V. Tenwinkel, 26 Mich. 93 ; Creigh v. Hedrick, 5 West Va. 140. 
 
 * Defendants wrote a letter as follows : " Troy, April 25, 1870. Messrs. 
 Allen & Co., N. Y. Gents. The bearer, Mr. Leonard Wager, Troy, N. 
 Y., is going to start a peddling route to sell cigars and tobacco. He 
 wishes to buy his goods of your firm. If you give him a liberal credit, we, 
 the undersigned, will be his security to the amount of $1,000. Signed, J. 
 G. Banker, P. J. Marsh." Held, that this letter was a continuing guar- 
 anty, and rendered the defendants liable until notice to the contrary. 
 Sickle V. Marsh, 44 How. (N. Y.) Pr. 91.
 
 b THE LAW OF GUARANTIES. 
 
 has ever accepted it eitlier Ijy word or hy act^ be cauiiot 
 aftel■^va^ds retract." 
 
 Sometimes, liowever, an offer to guarantee contem- 
 plates an express acceptance. When this is the case, 
 the person to whom the ott'er is made cannot avail him- 
 self of it without showing an express acceptance of it.* 
 Thus in Mozley v. Tinckler,^ G. T. gave an alleged guar- 
 anty in the following form : " F. informs me that you 
 are about publishing an arithmetic for him. I have no 
 objection to being answerable as far as £0^ ) for my ref- 
 erence apply to By This instrument was forwarded 
 by B. to the plaintiffs, who never communicated their 
 acceptance of it to Gr. T. In an action against the lat- 
 ter, on the guaranty, it was held that the plaintiffs, not 
 proving any notice of acceptance to the defendant, were 
 not entitled to recover. In this case the court consid- 
 ered that G. T. only intended to be bound by the in- 
 strument in case, upon inquiry, the plaintiffs should be 
 satisfied with regard to his solvency.f 
 
 A contract being the offspring of intention, it fol- 
 lows that the minds of the contracting parties must be 
 ad idem as to the subject of the contract. Thus, if two 
 
 ^ 1 Cr. M. k R. 692. See also Martin v. Marshall, 2 H. & C. 315. 
 
 * Notice of the acceiDtauce of a guaranty, followed by notice in due 
 season that the principal is in default, fixes the liability of the guarantor, 
 and gives an immediate right of action against him as an original debtor. 
 Montgomery v. Kellogg, 43 Miss. 486. 
 
 t So, where the defendant wrote as follows : " Dear Sir. This note 
 will introduce you to A. B., who wishes to jjurchase goods upon a credit 
 of three months. I consider him perfectly good, and, if required, will in- 
 dorse for him to that amount."' It was held, that as the undertaking was 
 only to be entered into upon request, and by indorsement, the letter in it- 
 self was not a guaranty. Stockbridge p. Schoonmaker, 45 Barb. 100. 
 
 And an agreement to indorse is not in itself a guaranty. Schlessinger 
 V. Dickinson, 5 Allen (Mass.) 47; Bagley v. Moulton, 42 Vt. 184 ; Stafford 
 X. Low, 16 Johns. (N. Y.) 67 ; Bushnell v. Bishop Hill Colony, 28 111. 204.
 
 INTRODUCTORY. 7 
 
 persons enter into an apparent contract concerning a 
 particular person or ship, and it turns out that eacli of 
 them, misled by a similarity of name, had a different 
 person or ship in his mind, no contract would exist be- 
 tween them.^ Again, if a person is induced to buy cer- 
 tain oats from another, under the belief that they are 
 old oats, the contract is binding, though the oats are 
 actually not old. But if the person had agreed to take 
 the oats, not merely under the belief that they iceve old^ 
 but under the belief that the seller contracted they were 
 old, there would be no contract in such a case if this was 
 brought to the mind of the seller by any means what- 
 soever.^ The reason of this somew^hat subtle distinction 
 is perfectly just. In \hQ former case the minds of both 
 parties would be ad idem as to the purchase of the oats 
 in question, though the motive of the buyer in jDurchas- 
 ing them might be his belief that they were old. In 
 the latter case the minds of the parties would not be ad 
 idem as to the subject of the contract, for, whilst the 
 buyer believed the seller contracted to sell old oats, the 
 seller, knowing this, intended to supply oats that were 
 not old. ^ 
 
 In Paley's Moral and Political Philosophy,^ it is 
 stated that a promise is to be interpreted " in the sense 
 in which the j)romisor apprehended at the time that the 
 promisee received it." The English rule of law that 
 the promisor is not bound '■ to fulfil a promise in a sense 
 
 ' L. R. 6 Q. B. 597. ' Book iii, cap. 5. 
 
 ^ See Smith v. Hughes, L. R. 6 Q. B. 
 597, jtafisim. 
 
 * Where a guaranty by its terms is general and unrestricted, and 
 where the entire subject is embraced by it, it covers the accessories and 
 consequences for which the principal is liable. Benjamin v. Hillard, 23 
 How. (U. S.) 149; Scully v. Hawkins, 14 La. Ann. 183, And see this prin- 
 ciple illustrated in case of principal and surety, in Brockett v. Martin, 11 
 Kans. 378 ; and Doty v. EUsbree, Id. 209.
 
 8 THE LAW OF GUARANTIES. 
 
 in wbicli the promisee knew at the time the promisor 
 (lid not intend it," is acorollaiy to tbis rule of morality/ 
 And, in considering the question, in what sense a prom- 
 isee is entitled to enforce a promise, it matters not in 
 what way the knowledge of the meaning in which the 
 promisor made it is brought to the mind of the prom- 
 isee, whether by express words, or by conduct, or pre- 
 vious dealings, or other circumstances.^ If by any 
 means he knows that there was no real as-reement be- 
 tween him and the promisor, he is not entitled to insist 
 that the promise shall be fulfilled in a sense in which 
 the mind of the promisor does not assent.^ *^" Some- 
 times, owing to the way in which one of the contracting 
 parties has conducted himself, he is precluded from 
 showino; that he intended somethino; different from the 
 other contracting party, and that, consequently, there is 
 not that necessary concurrence of intention essential to 
 every contract. Thus, if, whatever a man's real inten- 
 tion may be, he so conducts himself that a reasonable 
 man would believe that he was assenting to the terms 
 proposed by the other party, and that the other party, 
 upon that belief, enters into the contract with him, the 
 man thus conducting himself would be equally bound 
 as if he had intended to agree to the other party's 
 terms.* So where the defendant (by mistake) chose to 
 sign a guaranty which gave full effect to the plaintiff's 
 intentions, and thereby induced the plaintiff' to supply 
 goods to a third person on the faith of such guaranty, 
 it was held that the defendant was liable on his guar- 
 
 ' L. R. 6 Q. B. 597, 610. * Per Blackburn, J., in Smith v.. 
 
 « lb. Hughes, L. R. 6 Q. B. 597, 607. See 
 
 ^ lb. See also observations of Kin- also Freeman v. Cooke, 2 Ex. 663; 18 
 
 dersley, V. C. in Small v. Currie, 2 L. J. Ex. 119. 
 
 Drew.' 102, 114. 
 
 * Menard v. ScncMer, 7 La. Ann. 385 ; Crist v. Burlingame, 62 Barb. 351.
 
 INTRODUCTORY. ^ 
 
 anty, and that he had no equity to turn round on the 
 plaintiff and say, " I meant what I have not stated, and 
 although you have relied upon my statement, I will 
 only be liable for what I meant." ^ So, too, where in 
 the case of a sale of goods by sample, the vendor (by 
 mistake) exhibited a wrong sample, it was held that 
 the vendor could not, on that account, treat the con- 
 tract as void.^ " But if in the last-mentioned case, the 
 purchaser, in the course of the negotiations preliminary 
 to the contract, had discovered that the vendor wa*s 
 under a misapprehension as to the sample he was offer- 
 ing, the vendor would have been entitled to show that 
 he had not intended to enter into the contract by which 
 the purchaser sought to bind him." ^ ^'' 
 
 Secondlij^ we come to another requisite of a contract, 
 namely, the competency of the parties to contract. 
 
 We have already stated that every contract includes 
 a concurrence of intention in two parties. This, in fact, 
 enters into the idea of every contract. Now, intention 
 
 ' Haymen v. Gover, 25 L. T. N. S. ' Per Hannen, J., in Smith v. 
 
 Q. B. 908. Hugjies, L. R. 6 Q. B. at p. 609. 
 
 ' Scott V. Littledale, 8 E. &B. 815. 
 
 * Parties making a mistake in a matter of fact, will not be held bound 
 by their acts entered into under such mistake; but they cannot be relieved 
 of acts entered into under a mistake of law. Hunt i\ Rousmaniere's Adm. 
 1 Pet. 1; 8 Wheat. 174; Hepburn «. Dunlop, 1 Id. 179; Lyon v. Rich- 
 mond, 2 John. Ch. 51 ; Shotwell v. Murray, 1 Id. 512; Storrs v. Barker, 6 
 Id. 166; Clark v. Dutcher, 9 Cow. 670. If the surety becomes aware of 
 the mistake, and takes no steps to correct it or to relieve liimself of his con- 
 tract, he will be considered as waiving it and ratifying the contract. 
 Burge on Suretyship, p. 253. It is to be noticed, however, that the rela- 
 tions of parties to the same transaction is a proper subject of inquiry by 
 courts, and sometimes the relation of principal and surety is pronounced 
 by courts to have existed where the parties to tlie transaction may not have 
 intended so to charge each other. Cone v. Wilson, 40 Ind. 204 ; Ewing v. 
 Logan, Id. 342. But proceedings to establish the fact of suretyship shall 
 not atfect the proceedings of the plaintiff. Pattisou v. Vaughan, Id. 253. 
 And defendants who are not technically sureties may set up in a cross com- 
 plaint the fact of their virtual suretyship. Allen v. Javin, Id. 446.
 
 10 THE LAW OF GUARANTIES. 
 
 is a voluntary mental operation, being produced by a 
 joint exercise of tlie w/// and the understanding} There- 
 fore the parties to a contract must be mentally caimhle 
 of 2:)roducing the necessary intention ; for, unless both 
 have this capacity, there can be no contract between 
 them. In accordance with this view is the maxim of 
 the civil law, wliich declares that " Furiosus nidlum 
 negotimn gerere i^otest^ qida non intelligit quod agitP ^ 
 
 In England, however, in consequence of an old 
 maxim of the common law, affirmed by Lord Coke, 
 which declares that " a man shall not be allowed to 
 stultify himself," insanity, it would seem, is not a 
 good defense to an action of assumpsit, unless it also 
 appear that the plaintiff knew of it and took advan- 
 tage of the circumstance to impose upon the defend- 
 ant." Thus, in Brown v. Joddrell,'' Lord Tenterden 
 said, "I think that this defense cannot be allowed, and 
 that no person can be sufiered to stultify himself, and 
 set up his own lunacy in his defense. If, indeed, it can 
 be shown that the defendant has been imposed upon by 
 the plaintiff, in consequence of his mental imbecility, it 
 might be otherwise, and such a defense might be ad- 
 mitted." '" Where the contract was executed, in whole 
 or in part, this affords an additional reason for not 
 vacating it, on the ground of insanity.® A lunatic may 
 certainly contract for necessaries suitable to his de- 
 
 ^ As to which of these two poweris of Davis v. Kirkwall, 8 C. tfe P. G19 ; Moss 
 
 the mind predominates in the formation v. Tribe, 3 F. A F. 297 ; Lovatti'. Tribe, 
 
 of intention we are not called upon to 3 F. & F. 9 ; Baker «». Cartwright, 7 Jur. 
 
 discuss. " The faculties of undtrstand- N. S. 1247; SOL. J. C. P. 364; 10 C. 
 
 ■big and v:ill, are easily distinguished in B. N. S. 124. 
 
 thought, but very rarely, if ever, dis- ■■ 3 C. <fe P. 30; M. & M. 105. 
 
 joined in operation." See Reid's Col- ' See Beavan v. McDonnell, supra, as 
 
 'lected AVritings by Sir W. Hamilton, 2d to proof of knowledge of defendant's in- 
 
 ed. p. 537. capacity. Also Lovatt v. Tribe, 3 F. <fe 
 
 ^ Inst. lib. 3, tit. 20, g 8 ; Dig. lib. F. 9. 
 
 50, tit. 17, i. 5, i. 40. " " Molton v. Camroux, 4 Exch. 17; s. 
 
 ^ Levy V. Baker, Mood. & M. 106 n. ; c, in court below, 2 Exch. 487. 
 Beavan v. McDonnell, 9 Exch. 309;
 
 INTRODUCTORY. 11 
 
 gree, and au action will lie against him, notwithstand- 
 ing an inquisition of lunacy, for the amount.-^ So, 
 also, the law ^v\\l raise an implied contract, and give 
 a valid demand or debt ao-aiust the lunatic or his 
 estate for moneys expended for the necessary protec- 
 tion of his person and estate.^ 
 
 In Chitty on Contracts,^ it is stated that modern 
 cases have qualified the doctrine that a man of full 
 age shall not be allowed to disable or stultify him- 
 self by pleading his own incapacity, and that " there is 
 no doubt that, at this day, a man or his rej^resentatives 
 may show that, when he made a promise, or sealed an 
 instrument, he was so lunatic as not to know what he 
 was about." This proposition derives support from the 
 recent nisi ])Tiiis case of Gray (P. O.) v. Warren,^ which 
 was an action on a guaranty, and in which the pleas 
 were — (1) that the defendant was of unsound mind 
 when he executed the guaranty, and (2) that he had 
 been induced by fraud to give the guaranty. Mr. Jus- 
 tice Brett, in the course of his summing up to the jury 
 in this case, said, that if the defendant had a mind in- 
 capable of consenting to sign the guaranty he could not 
 sign. Finally, he left it to .the jury to say whether the 
 defendant was so unsound in mind as not to know what 
 he was doing when he signed the instrument of guaranty 
 sued on. 
 
 Courts of equity will, of course, give relief where 
 a person of weak intellect * has entered into a contract, 
 the nature of which justifies the conclusion that the 
 
 ' Bagster v. Portsmouth (Earl), 7 D. ' Williams v. "Wentworth, 5 Beav. 
 
 <fe R. 614; 5 B. & C. 170 ; 2 C. & P. 178 : 825. See also Manby v. Scott, 1 Sid. 
 
 Read V. Legard, 6 Excli. 637; 15 Jur. 112. 
 
 494; 20 L. J. Exch. 309 ; Stedman v. ' 9tli ed. p. 13.5, and note (A:). 
 
 Hart, 1 Ki5y, 607; 18 Jur. 744 ; 23 L.' * See "Times," Thursday, April 24th, 
 
 J. Ch. 908. 1873. 
 
 * Killan v. Badgett, 27 Ark. 1G6.
 
 12 THE LAW OF GUARANTIES. 
 
 party Las not exercised a deliberate judgment, but that 
 he has been imposed upon, circumvented, or overcome 
 by cunning or artifice, or undue influence.^ * 
 
 Intoxication^ if complete and not partial merely, will 
 render an agreement, entered into by a person in that 
 state, void.^ Thus, in Pitt v. Smith,^ where to an action 
 for libel, in stating that the plaintiff had induced the 
 defendant to execute an agreement in a state of intoxi- 
 cation, the general issue was pleaded, and evidence given 
 under it, to show that defendant was in a complete state 
 of intoxication when he executed it, a nonsuit was di- 
 rected by Lord Ellenborough, who said, "You have 
 alleged that there was an agreement between the par- 
 ties, and this allegation you must prove, as it is put 
 in issue by the plea of Qwt guilty ; but there was 
 no agreement between the parties if the defendant 
 was intoxicated in the manner supposed when he signed 
 this paper. He had not an agreeing mind.'''' It seems 
 to have been held, formerly, that the intoxication of 
 one of the contracting parties, to invalidate the con- 
 tract, must have been known to the other party;* 
 and, it seems, that this may still be the law in a case 
 of 'partial intoxication.^ Where, in a suit for specific 
 performance of an agreement, the defense set up was 
 incapacity at the time of executing it, on the ground 
 of intoxication, it was held, that the mere intoxica- 
 tion, witlioiit fraud ^ was not sufficient ground for getting 
 ritl of the agreement.*^ And it is to be observed, that, 
 
 ' story, Eq. Jur. 10th eJ. par. 2.38. Wms. 1.30 ; Cooke v. Claywortb, 18 Ves. 
 
 "Gere V. Gibson, 13 M. & W. 623; 12. ' 
 
 Molton V. Camroux, 4 Exch. 17, 19 ; But- ' Bvles on Bills, 10th eel. p. 63. 
 
 ler V. Muliuhill, 1 Bligh, 137; Hawkins ' Shaw v. Thackray, 17 Jur. 1045; 
 
 V. Bone, 4 F. <fe F. 311. 1 Sm. & G. 537 ; Lightfoot v. Heron, 3 
 
 ' 3 Camp. 33. Y. <fe C. 586. 
 
 '' Johnson v. Medlicote, cited :; P. 
 
 * Marvin r. luglis, 39 How. 339; Allen r. Berryhill, 27 Iowa, 534.
 
 INTRODUCTORY. 13 
 
 ■under any circumstances, the contract of a drunken man 
 is voidable only, and not absolutely void, and therefore 
 becomes binding if adopted by him after he is sober.^ * 
 Contracts entered into by persons under a constrain- 
 ing force are void, on the ground of duress, and the 
 courts of equity will not allow a guaranty given under 
 such circumstances to be taken advantage of.^f This 
 is because persons entering into them, under these cir- 
 cumstances, are not in a state in which they can produce 
 that necessary intention without which no contract can 
 be formed. Thus, duress by imprisonment will avoid a 
 contract. To constitute this, it seems, that either the 
 imprisonment or the duress that is offered in prison 
 must be tortious and unlawful.^ Duress by threat will 
 also, sometimes, be sufficient to avoid a contract. No 
 threat will, however, be sufficient to constitute such 
 duress unless it amount to a threat of personal restraint 
 or injury. Thus, menacing to commit a battery, or to 
 burn the house,* or spoil the goods of a person, is not 
 sufficient to invalidate a contract.^ 
 
 ' Mathews v. Baxter, L. R. 8 Exch. ° Bacon, Abr. Duress, A. 
 
 132. * But see Chitty on Contracts, 9th 
 
 " Per Kindersley, V.-C, in Small v. ed. pp. 189, 190. 
 Currie, 2 Drew. 102, 114. ^ Bac. Abr. A. 
 
 * A party to a contract may show that at the time of making it he was 
 incapable of contracting intelligently by reason of intoxication. Phelan 
 V. Gardiner, 43 Cal. 306 ; Reinskopf v. Rogge, 37 Ind. 207 ; Cadwallader 
 V. West, 48 Mo. 483. 
 
 t Miller v. Miller, 68 Pa. St. 486 ; Knapp v. Hyde, 60 Barb. (N. Y.) 80. 
 To render a contract void because of threats, it must appear that the 
 threats were of a character to excite the reasonable apprehensions of a per- 
 son of ordinary courage. Bailey v. Shanner, 26 Ark. 280. Duress through 
 threats of imprisonment is no defense to an action on a promissory note 
 (Knapp V. Hyde, uU supra), but a menace of unlawful imprisonment 
 might be. Alexander v. Pierce, 10 N. H. 494; Eddy v. Herrin, 17 Maine, 
 338. Lawful imprisonment is no duress. Id. ; Steinbaker v. Wilson, 1 
 (Pa.) Leg. Gaz. Rep. 76. But unlawful or improper imprisonment may be. 
 Phelps V. Zuschlag, 34 Tex. 371.
 
 l-t THE. LAW OF GUARANTIES. 
 
 Duress of r/oods, too, will uot invalidate a contract.^ ^' 
 Thus, in Skeate v. Beale,^ Lord Denman said, " We con- 
 sider the Law to be clear and founded on good reason, 
 that an agreement is not void because made under 
 duress of goods. There is no distinction-in this respect 
 between a deed and an agreement not under seal ; and 
 with regard to the former, the law is laid down in 2 
 Inst. 483, and Shepj^ard's Touchstone, p. (31, and the 
 distinction pointed out between duress of, or menace to, 
 the person, and duress of goods. The former is a con- 
 straining force, which not only takes away the free 
 agency^ but may leave no room for appeal to the law 
 for a remedy ; a man, therefore, is not bound by the 
 ao;reement which he enters into under such circum- 
 stances ; but the fear that goods may be taken or in- 
 jured, does not deprive any one of his free agency who 
 possesses that ordinary degree of firmness which the 
 law requires all to exert." 
 
 The duress that will avoid a contract must, as a 
 rule, be exercised upon one of the contracting parties 
 personally.^ Thus, duress to a third person, though a 
 servant of the contracting party, will not avoid a mas- 
 ter's contract, or vice versa} However, duress to the 
 son will, it seems, avoid the father's deed, and mce 
 
 " Atlee V. Backlioiise. ?> M. & W. 633, = Bac. Abr. Duress, B. and Roll. 
 
 650 ; Astlee v. Reynolds, 2 Str. 915 ; Abr. 687. 
 Sumner v. Ferryman, 11 Mod. 202. * lb. 
 
 » 11 Ad. <fe Ell. 983, 990; 3 P. <fe D. 
 597 ; 4 Jur. 766. 
 
 * A threat to withhold payment of a debt or to refuse performance of 
 a contract, or to do an injury which may be at once redressed by legal 
 process, is not duress per miiias. Miller v. Miller, uli supra. Wrongfully 
 taking and keeping goods of perishable nature fin this case oysters), and 
 refusing to surrender them except upon payment of a larger sum than was 
 actually due to the holder, is uot duress. Spaids v. Barrett, 57 111. 289.
 
 I 
 
 INTRODUCTORY. . 15 
 
 versa} So, also, duress to tlie wife will avoid the hus- 
 band's contract.^ Under certain circumstances, duress 
 on a person will avoid the contract of such j^erson, 
 though entered into for him hy an agent? 
 
 Duress by a stranger, if at the instance of the party 
 who will reap the benefit of it, is a good ground for in- 
 validatino' a contract.* 
 
 Infants labor under a qualified incapacity to contract, 
 which is founded upon the supposed absence in them of 
 that mature intellectual 230wer, without which no in- 
 tention to contract can be formed. Infancy, by the 
 Roman civil law, lasted, in the case of both males and 
 females, until the age of seven was completed.^ During 
 this j^eriod, minors labored under an almost absolute in- 
 capacity to contract. After seven years, minon's were 
 .said to iDossess intellectus^ but not judicium.^ This lat- 
 ter power was, accordingly, in the case of minors sui 
 juris, supplied by the tutor, and every contract entered 
 into by a minor, after seven years of age, and under the 
 age of puberty, was legally valid if made with the sanc- 
 tion of the tutor.^ If made without such consent, the 
 infant might Jiave the benefit of it if he pleased, though 
 he could not be bound by it, Unde in Ms causis ex 
 quihus ohligationes mutuce nascunttir ; iit in eynptioni- 
 bus, venditionihus, locationihus, conductionihus, man- 
 datis, depositis ; si tutoris aiidoritas non interveniat ipsi 
 quidem qui cum his contralmnt ohligantur ; at invicem 
 pupilli non ohligantur? At fourteen a male, and at 
 twelve a female, attained the age of puberty, and, if sui 
 
 'lb. But see Story on Contracts, ^ Mackeldeii, Sj'stema Juris Roman i, 
 
 4th ed. vol. i, p. 493, note (3). § 120. 
 
 '^ Bac. Abr. Duress, B. and Roll. Abr. "See Institutes of Justinian (San- 
 
 687. dars), 4th ed. p. 145. 
 
 ' Gumming v. Ince, 11 A. & E. 112. '1. 1, 21 pr. ; Mackeldeii, Svstcma 
 
 ^ Roll. Abr. 088. Juris Romani, g 584. 
 
 ■^Ib.
 
 16 THE LAW OF GUARANTIES. 
 
 jnn's, could tlien act in pi'ojyrid jx^f'sona} However, 
 though, as a rule, a person who lias reached puberty 
 (minor pules) was not obliged, against his will, to re- 
 main under the control of another, yet, acting under the 
 advice of his tutor, he almost always consented to the 
 appointment of a curator^ who, once appointed, held his 
 office until the minor inibes [who was suijuris^ attained 
 majority, i. e., twentyrfive years, or until the emperor, by 
 rescript, granted the venia cefafis, or dispensation of age, 
 which could only be obtained by a 77iale at twenty, and by 
 a female at eighteen.^ The curator, unlike the tutor, did 
 not supply any mental deficiency in the minor. He merely 
 assisted him in the administration of his property.'^ 
 
 By the English law, all persons under the age of 
 tweuty*one are infants, and, as such, they are altogether 
 disabled from contracting, except in the case of neces- 
 saries, and of acts in their nature beneficial to them- 
 selves.* The term necessaries is a relative one, and its 
 meanino; varies with the rank and fortune of the infant.^ 
 It has recently been decided that articles of mere lux- 
 ury cannot be necessaries suitable to the condition of 
 any infant, but articles of utility, though.luxurious and 
 expensive, may be.® Though a contract with an infant 
 is voidable by him, yet it cannot be avoided by the 
 opposite party.'^* On coming of age, a person may 
 
 ' I. 1, 22 pr. ; I. 1, 23, 2 ; Mackeldeii, Hands v. Slaney, 8 T. R. 578; Harris v. 
 
 Systema Juris Romani, § 126. Fane, 1 Scott, N. R. 287 ; 1 M. & G. 550 ; 
 
 ^ I. 1, 23 pr. See also Institutes of 4 Jur. 508 ; Wharton v. Mackenzie, 5 
 
 Justinian (by Sandars), 4th ed. p. 150. Q. B. 606; Brayshaw v. Eaton, 7 Scott, 
 
 ' Institutes of Justinian (by San- 183. 
 dars), 4th ed. p. 129. * Ryder v. Wombwell, L. R. 8 Exch. 
 
 * Burghart v. Angerstein, 6 C. & P. 90. 
 
 690; 1 M. <fe R. 458; Chitty on Con- ' Warwick v. Bruce, 2 M. & 3, 205; 
 
 tracts, 9th ed. p. 139. Zouch v. Parsons, 3 Burr. 1808. 
 
 * Peters v. Fleming, 1 M. & W. 42 ; 
 
 * A contract of suretyship made by an infant is voidable only, and'may 
 be ratified and affirmed by the infant when he an-ives at his legal majority, 
 Fetrow v. Wiseman, 40 Iiid. 148.
 
 INTRODUCTORY. 17 
 
 affirm a coutract made witli such person during infancy.^ 
 By 9 Geo. 4, c. 14, s. 5 (Lord Tenterden's Act), it is 
 enacted, that no action shall be maintained whereby to 
 charge any person, upon any promise made after full 
 age, to pay any debt contracted during infancy, or upon 
 any ratification, after fyll age, of any promise or simple 
 contract made during infancy, unless such promise or 
 ratification shall be made by some writing signed by 
 the party to be charged therewith.^'' 
 
 By the English law, a married woman cannot, as a 
 rule, bind either herself or her husband by any contract 
 she may enter into. Two reasons are usually assigned 
 for this incapacity: first, for her husband's safety, in de- 
 priving her of the power to injure him by any act with- 
 out his concurrence or his assent, either expressed or 
 implied ; and, secondly, for her own security, in guard- 
 ing against the husband's influence over her, by dis- 
 abling her from disposing of her own property, except 
 by those methods and with the solemnities which the 
 
 ^ Holt V. Ward, Sir VV. Jones, 164 ; s. c. Noy, 93 ; Kay v. Smith, 21 Beav. 522. 
 
 * The general rule is, that infancy is to be regarded as a personal priv- 
 ilege, and that an infant shall thereafter be bound by no act which is not 
 beneficial. Schouler's Domestic Relations, 533. Infants' contracts are ia 
 general either void, voidable, or binding. Id. When the act done may 
 or may not be for the infant's benefit, the contracts are voidable. Whit- 
 ney V. Dutch, 14 Mass. 457. Where the court can pronounce that the con- 
 tract was for the benefit of the infant, it is binding upon him ; where it 
 can pronounce it for his prejudice, it is void. U. S. v. Bainbridge, 1 Mason, 
 82 ; McGan v. Marshall, 7 Humph. (Ten.) 131 ; Turpin v. Turpin, 16 Ohio St. 
 270 ; Hartness v. Thompson, 5 Johns. 160 ; Johnson ». Rockwell, 12 Ind. 
 76; Reed t. Batchelder, 1 Met. (Mass.) 559. But one who contracts with an 
 infant cannot set up the infancy in avoidance of his contract. Oliver ». 
 Houdlet, 13 Mass. 237. Nor can a stranger impeach the contract of an in- 
 fant. Dominick v. Michael, 4 Sandf (N. Y.) 374. 
 
 The strong teodency of modern cases is to regard all contracts of in- 
 fants as voidable only, Schouler's Domestic. Relations ; Reed v. Batchel- 
 der, iibi supra; Feltrow v. Wiseman, 40 lad. 148. 
 2
 
 18 THE LAW OF GUARANTIES. 
 
 law itself prescribes.^ It is clear, from the second of 
 these reasons, that, as regards her own property, the 
 reason a married \voinan cannot l)y the common law 
 contract, is because, under ordinary circumstances, if she 
 were to do so, her free will would be so influenced by 
 her husband that she would really be incapable of pro- 
 ducing the necessary intention to contract ;' just as a 
 jierson under duress is incapable of doing so.^ In 
 recent times, the disposition of the Legislature^ and 
 of courts of equity has been to give the wife more 
 power to contract — the old common law rule having 
 been found to be unsuited to modern society, and not 
 in harmony with existing public opinion. For the 
 various changes that have, within the last few years, 
 taken place in the rights and liabilities of husband and 
 wife, the reader is referred to some special treatise on 
 the subject,* * 
 
 The incapacities to contract, which we have hitherto 
 called attention to, rest on the want of power to produce 
 
 ' Roper's Husband and Wife, 2d ed. ^ See Married AVomen's Property 
 
 p. 2. Ach, 1870 (33 & 34 Vict. c. 93). 
 
 ^ As to duress, see ante, p. 9. * See the Law of Husband and Wife. 
 
 by Macqueen, Q. C, 2d ed. 
 
 * In the United States, the powers and rights of married women are 
 generally regulated by the statutes of the diflferent States. 
 
 In New Jersey and in Massachusetts it has been held, that a married 
 woman cannot charge her separate estate by a contract of suretyshij), im- 
 less in consideration of a lienefit to herself or her estate. Perkins t. 
 Elliot, 23 N. J. Eq. 526 ; Athol &c. Machine Co. v. Fuller, 107 Mass. 437. 
 
 In Pennsylvania, a mamed woman, engaged as an actress, cannot be- 
 come surety for the rent of the theater of her employer, such an act not 
 being necessary to the prosecution of her profession. Cochran v. Garrett- 
 son, 1 (Pa.) Leg. Gaz. Rep. 218. 
 
 In Louisiana, a married woman may bind her separate estate by an 
 engagement to pay the debt of her husband, by comj^lying with the stat- 
 ute of March 15, 1855, enabling married women to contract debts. Keller 
 ■c. Ring, 21 La. An 283.
 
 INTRODUCTORY. 19 
 
 tlie necessary intention to contract. There are, however, 
 others which rest on different principles, onginating in 
 motives of inihlic ])olk]j^ and which perhaps it may be 
 as well to mention in this place. By the common law, 
 all alien enemies^ and all British subjects and subjects 
 of neutral nations domiciled in an enemy's territory, or 
 engaged in the service of a hostile power, are disabled 
 from contracting with British subjects, unless they have 
 obtained a license to trade.^ '"'" But they may lawfully 
 provide for the wants and necessities of Englishmen 
 detained abroad, and may enforce contracts made for 
 such j^urposes on the return of peace.^ Alien friends^ 
 by the common law, labor under this partial incapacity 
 to contract — namely that they cannot lawfully enter 
 into or enforce any contracts connected with the acqui- 
 sition and enjoyment of freehold estates.^ f Prisoners 
 of war seem, by the common law, to possess the same 
 contracting power as alien friends} % 
 
 "The naturalization act, 1870,"^ has effected con- 
 
 ' Addison on Contracts, 6th ed. p. ^ lb. 
 
 1022. ^ lb. 
 
 "^ Addison on Contracts, 6tli ed. p. ^ S3 & 34 Vict. c. 14. 
 1023. 
 
 * Even alien enemies, residing in this country, may sue and be sued, as 
 in time of peace, on the ground that their residence is lawful until they are 
 ordered away by competent authority, and this residence gives them a right 
 to protection. Clarke v. Morey, 10 .Johns. (N. Y.) 69 ; Eussell v. Skipwith, 
 6 Binn. (Penn.) 241. 
 
 The right to confiscate the debts and projjerty of alien enemies is 
 declared to exist in Congress. Brown v. U.S. 8 Crauch, 110; The Ad- 
 venture, Id. 228, 229; Ware v. Hylton, 3 Dall. 199; vide Alexander 
 Hamilton's argument against this right, Letters, 1795 ; Parsons on Con- 
 tracts, p. 398. 
 
 t Kent Com. 2, 62. In some States the right only accrues upon 
 petition — e. g., Stats. Conn. 1838, p. 287. 
 
 X Vide 1 Kent, 14.
 
 20 . THE LAW OF GUARANTIES. 
 
 siderable alterations in the capacity of aliens as to 
 j^roperty, it being enacted, by section 2 of that act, that 
 " real and personal property of every description may 
 be taken, acquired, held and disposed of by an alien, in 
 the same manner in all respects as by a natural-born 
 British sul:)ject." No distinction appears to be made 
 by this act between alien friends and alien enemies, or 
 between aliens residing in the country and those who 
 do not. All aliens, therefore, would seem to enjoy the 
 express power conferred by sect. 2, as to taking, acquir- 
 ing and disposing of pro2:)erty, and the implied power 
 conferred by that section, without which the express 
 power would be almost useless — namely, of Entering 
 into contracts for the taking, acquiring and disposing of 
 real and personal property.^ 
 
 Felons and outlaws are incapable of contracting.^ 
 Thirdly^ we now 2:)ass on to another requisite of a 
 contract — the consideration. 
 
 Every contract not under seal must have a consid- 
 eration to support it.* This consideration is either ex- 
 pressed in words, or implied from the very nature of the 
 contract. It is implied in the case of bills or notes, it 
 being a presumption of law that every bill or note, 
 whether expressed or not to be for value received, was 
 given for adequate consideration, which therefore need 
 neither be alleged nor proved by the holder in suing 
 on the instrument." f However, want of consideration is 
 
 ' See Chitty on Contracts, 9th ed. p. ^ Chitty on Bills of Exchange, 10th 
 
 180. ed. p. 47. 
 
 * See Addison on Contracts, 6 ed. pp. 
 1023, 1(124. 
 
 * Clark V. Hampton, 1 Hun. (8 N. Y. Sup. Ct.) 612. 
 
 t Cook '0. Bradley, 7 Conn. 57 ; Dodge v. Burdell, 13 Id. 170; Bean v. 
 Burbank, 16 Me. 458; Baverleys v. Holmes, 4 Munf. (Va.) 95; Brown v. 
 Adams, 1 Stew. (Ala.) 51 ; Burnett «. Bisco, 4 Johns. 235 ; People v. Shall,
 
 INTRODUCTORY. 21 
 
 a defense in an action between the immediate parties. 
 Contracts- under seal or specialties not only are valid 
 without any expressed consideration, but are valid 
 without any consideration at all.^ ^' The reason why a 
 contract under seal is valid without consideration is, be- 
 cause an engagement of this description is of so solemn 
 a character, that persons entering into it must be pre- 
 sumed to have previously determined upon what they 
 were about to do.^ 
 
 Though, however, a contract under seal requires no 
 consideration to support it, yet, if it be founded on an 
 illegal consideration, this will render the contract void .^f 
 It would seem, too, though this has never been actually 
 decided, that the total failure of a consideration obvi- 
 ously intended to exist, would afford a good defense to 
 an action on instrument under seal.* % 
 
 ' Fallowes v. Taylor, '7 T. K. 475 ; =" Fisher v. Bridges, 3 Ell. &, Bl. 642, 
 
 Chitty oa Contracts, 9tli eel. p. 5. 649 ; Bunn v. Guy, 4 East, 190, 200. 
 
 » Morley v. Boothby, 3 Bing. lOfi, ■• See Rose v. Poulton, 2 B. & Ad. 
 
 Ill ; Sliarington v. Pleclall, Plowd. 308. 822, 828. 
 
 9 Cow. (N. Y.) 778 ; Rqper v. Stone, Cooke (Ten.) 497 ; Clark v. Small, 6 
 Yerg. (Ten.) 418 ; Peirine v. Cheesemau, 6 Halst. (jST. J.) 174. 
 
 * See case.s cited in preceding note. 
 
 t Osgood v. Franklin, 2 Johns. Ch. 23 ; Spaulding v. Preston, 2 Vt. 1 ^ 
 Bloss v. Bloomer, 23 Barb. 604; Kinesburgli v. Rumner, 9 Vt. 23; Arm- 
 strong r. Toler, 11 Wheat. 258; Woodruff ». Henniau, 11 Vt, 592; Buck 
 V. Albee, 26 Id. 184 ; Daring v. Chapman, 22 Me. 448 ; Filson v. Himes, 5 
 Penn. St. 452 ; DedhaniBank v. Chickering, 4 Pick. (Mass.) 314 ; Sherman 
 V. Barnard, 19 Barb. 291 ; Hopver v. Pierce, 27 Miss. 13 ; Turner v. Smitli- 
 ers, 3 Houst. (Del.) 430; Newstadt ». Hall, 58 El. 172; Haus v. Fenlou, 8 
 Kan. 601 ; Southard v. Boyd, 51 N. Y. 477; Hunter v. Nolf, 71 Pa. St. 282. 
 
 X Woodward v. Cowing, 13 Mass. 216; Spring v. Coffin, 10 Mass. 34; 
 Murray v. Carret, 3 Call. (Va.) 373; Treat v. Orono, 26 Me. 217 ; Colville v. 
 Besley, 2 Denio, 139 ; Dean v. Mason, 4 Conn. 428 ; Collaway v. Hearn, 1 
 Houst. (Del.) 610 ; Kimball v. Walker, 30 El. 511 ; Bassford v. Pierson, 9 Al- 
 len (Mass.) 393 ; Nutting r. Dickerson, 8 Id. 540 ; Gray v. Handkinson, 1 Bay 
 (S. C.) 278 ; State v. Gaillard, 2 Bay (S. C.) 11 ; Matlock v. Gibson, 8 Rich. 
 L. (N. C.) 437 ; Leonard v. Bates, 1 Blackf. (Ind.) 173; Swift 2'. Hawkins, 1
 
 22 THE LAW OF GUARANTIES. 
 
 The contract of guaranty, like every otlier contract, 
 requires a consideration to support it, unless it be under 
 seal/" This was decided in the ease of Barrell v. Trus- 
 sell.^ There, it was contended at the bar, that a prom- 
 ise to answer for the debt of another, if in writing, did 
 not require any consideration to support it. The court, 
 however, observed, that in all cases to make any promise 
 valid, whether to pay the debt of another, or to do any- 
 thing else, there must be a consideration for it, whether 
 it be in writing or not in writing. 
 
 No court of law has ever decided that there must be 
 a consideration moving directly between the person giv- 
 ing and the person receiving a guaranty ; it is enough if 
 the person for whom the guaranty is given thereby re- 
 ceive a benefit or advantage ; or if the party to whom 
 it is given suffer a detriment or inconvenience, to form 
 an inducement to the surety to render himself liable for 
 the debt of the principal.^ Owing to the circumstance 
 
 >4 Taunt. 117, 120. See also per Gr. 644; Westhead w. Sproson, 30 L. J. 
 
 Abbott, C. J., and Bayley, J., in Saund- Ex. 265, 267; Boyd v. Moyle, 2 C. B. 
 
 ers V. Wakefield, 4 B^. & Aid. 595, 600, 644, 650. 
 
 601 ; Pillan v. Van Mierop and Hopkins, ^ Per Best, C. J., in Morley v. Booth- 
 
 3 Burr. 1663 (where the whole subject by, 10 Moore, 395, 406. See also judg- 
 
 of consideration is learnedly and fullj'^ ment of Yates, J., in Pillan v. Van Mie- 
 
 discussed) ; French v. French, 2 M. ife rop and Hopkins, 3 Burr. 1663. 
 
 Dal. 17 ; Case ». Bougliton, 11 Wend, 106; Solomon t\ Kimmel, 5 Biuu. 
 (Penn.) 2.32; Coyle r. Fowler, 3 J. J. Marsh. (Ky.) 473; Walker v. Walker, 
 13 Ired. L. (K C.) 335 ; Peebles v. Stephens, 1 Bibb (Ky.) 500; Grout v. 
 Townshend, 2 Hill (N. Y.) 554, 557 ; Meriam v. Harsen, 2 Barb. Ch. 232, 
 267; McCrear. Purmort, 16 Wend. 460; Bank of U. S. v. Housman, 6 
 Paige Ch. 526 ; Barnum v. Childs, 1 Sandf. 58 ; Doe v. Beardsley, 2 McLean 
 U. S. 412. 
 
 * Contracts of guaranty, although in writing, are of no force unless 
 founded upon consideration. Leonard v. Vreedenburgh, 8 Johns. 29; 
 Bailey v. Freeman, 4 Id. 280; Clark v. Small, 6 Yerg. (Tenn.) 418; Ald- 
 ridge v. Turner 1 G. & J. (Md.) 427 ; NeeLson v. Sandborne, 2 N. H. 414 ; 
 Tenny v. Prince, 4 Pick. (Mass.) 385; Cobb v. Page, 17 Penn. St. 469. 
 
 The consideration of a promise may be any loss, trouble, or inconven- 
 ience to, or charge upon the promisee, it is not essential that it should 
 also be a benefit to the promisor. Wells t. Mann, 45 N. Y. 327 ; 6 Amer. 93.
 
 t INTRODUCTORY. 23 
 
 tliat, usually, persons by giving guaranties benefit third 
 persons ratlier than themselves, it seems to have been 
 assumed in some cases, that where the person giving a 
 guaranty derived any a'p'parent henefit from it, the whole 
 character of the transaction was altered.'^ These cases 
 
 * The American rule as to the consideration of a guaranty seems to be 
 tliat an obligation already incurred between the parties to the guaranty 
 will not be sufficient, but a new and distinct consideration will be required. 
 Raband v. De W^olf, 1 Paine, 580; Anderson i\ Davis, 9 Vt. 136; Pike «. 
 Irwin, 1 Sandf. 14 ; Parker v. Barker, 3 Met. (Mass.) 423 ; Ware v. Adams, 
 24 Me. 177; Blake v. Parlin, 22 Me. 395 ; Bagley v. Moulton, 43 Vt. 184 ; 
 Mosher v. Hotchkiss, 3 Abb. App. Dec. 336 ; Sanders v. Gillespie, 64 Barb. 638. 
 
 The consideration to support a parol promise to pay the debt of another, 
 must be such as would be good as relating to the payment of that particu- 
 lar debt, or of any other of an equal amount. Thomas r. Delphy, 33 Md. 
 373. So where the original obligation is founded upon a good considera- 
 tion, and the contract of guaranty is entered into contemporaneously 
 therewith, or where the original obligation is the inducement for giving 
 credit, it may be also the consideration for the guaranty. Leonard v. 
 Vreedenburgh, 8 Johns. 39 ; Camijbell v. Knaj^p, 15 Penn. St. 27 ; Conkey 
 V. Hopkins, 17 Johns. 113; Henderson v. Rice, 1 Cold. (Ten.) 333 ; Yale v. 
 Edgerton, 14 Minn. 194; WjTnan v. Goodrich, 36 Wis. 31; Hedges i'. 
 Strong, 3 Oreg. 18 ; Ludwick v. Watson, Id. 356 ; Stewart v. Hinkle, 1 
 Bond, 506 ; Hiltz v. ScuUey, 1 Cine. (Ohio) 555 ; Putney v. Faraham, 37 
 Wis. 187 ; Britton v. Angier, 48 N. Y. 430; Brown v. Brown, 47 Mo. 130 ; 
 Barker v. Bradley, 42 N. Y. 316 ; Besshears v. Rowe, 46 Mo. 501 ; Harris 
 v.. Young, 40 Ga. 65 ; Uhler v. Farmers' National Bank, 64 Pa. St. 406 ; 
 Davis V. Banks, 45 Ga. 138 ; Wilson v. Beavans, 58 111. 233 ; Carothers v. 
 Connolly, 1 Mon. T. (Ky.) 433 ; Lessee v. Williams, 6 Lans. 238 ; Ellen- 
 wood V. Fults, 63 Barb. 321 ; Ashton v. Bayard, 71 Pa. St. 139; McCreary 
 V. Van Hook, 35 Tex. 631. 
 
 The consideration need not pass directly from the guarantor to the 
 guarantee. It will be deemed to be a sufficient consideration if the party 
 for whom the guaranty is given, receive a benefit, or if the guarantee is or 
 may be injured by it. Leonard «. Vreedenburgh, 8 Johns. 29 ; Hamaker 
 V. Eberiey, 3 Binn. 506; Bickford v. Gjbbs, 8 Cush. 156; Williams v. Mar- 
 shall, 43 Barb. 524. 
 
 A guaranty executed to pay a debt already contracted was held to be 
 a sufficient consideration, it appearing that the guarantor had previously 
 promised to execute a guaranty, and that the guarantor had relied upon 
 such promise in extending the credit, in Standley v. Miles, 36 Miss. 434.
 
 2-1: THE LAW OF GUARANTIES. . 
 
 will be discussed hereafter, when we come to treat of 
 the operation of the statute of frauds upon guaranties. 
 In the case of Ex 'parte Minet/ Lord Eldon is reported 
 to have said, " that the undertaking of one man for the 
 debt of another does not require a consideration moving 
 between them." Now, certainly, such a statement re- 
 quires explanation. If it means that the consideration 
 for a guaranty may consist of a detrwient to the person 
 to whom the guaranty is given, or, what is really the 
 same thing, of a henefit conferred by the latter on the 
 principal debtor, why then the statement in cjuestion is 
 undoubtedly good law. If, however, Lord Eldon meant 
 to say that the existence of a debt between A. and B. 
 is of itself a sufficient consideration for a guaranty of C, 
 then, certainly, he laid down that which is not the law. ^ 
 
 * 14 Ves. 189. 
 
 The consideration of a guaranty, like that of any other contract, may be 
 IH'Oved by parol evidence. Gregory ». Gleed, 33 Vt. 405. 
 
 * The second clause of the fourth section of the act of 29 Car. 3, 
 c. 3, as will be' seen further on, has become either as a part of the body 
 of the common law brought over by the colonies, or by express legis- 
 lative re enactment, the law in the several States of the Union. Per- 
 haps the earliest attempt at an interpretation of the law thereunder, drawn 
 from a classification of all precedent cases and its consequent enunciation, 
 occurs in the learned opinion of Chancellor Kent, in Leonard v. Vreeden- 
 burg (8 Johnson R. 29), in New York, in the year 1811. The declara- 
 tion of Lord Eldon, that " the undertaking of one man for the debt of 
 another does not require a consideration moving between them," has 
 always been more or less of a stumbling block in the interpretation of this 
 section, and the burden of later cases have doubted its authority. The 
 better opinion has seemed to be that a new consideration, to give the 
 character of originality to the j)romise, so as to take it from out the opera- 
 tion of the statute, must move to the promisor. It may move to the 
 promisor from the debtor, or to the promisor from the creditor. But a 
 consideration merely moving to the original debtor, while it may support 
 the promise of the surety, according to the tenor of the last decisions, and 
 especially according to the elaborate and painstaking opinion of Comstock, 
 C. J. (in Mallory v. Gillett, 21 New York [? SraithJ, 412), wUl not consti-
 
 INTRODUCTORY. 25 
 
 Thus, it appears from numerous cases that a promise to 
 pay a debt already incurred by a third person, without 
 the interventioQ of the defendant, is not binding unless 
 made on some new consideration ; ^ for a ^ms^ or ex- 
 ecuted consideration, luiless moved at the defendant's 
 request, is not binding without some new consideration. "' 
 However, an agreement by the creditor that he will for- 
 bear to sue the principal debtor for a past debt, is a 
 sufficient consideration for the guaranty of the surety.f 
 
 ' See Fr.ench v. French, 2 M. & G. B. 251 ; Tomlinson v. Gell, 6 Ad. & EU. 
 
 644; 3 Scott, N. R. 121 ; Wood v. Ben- 564; Thomas v. Williams, 10 B. & C. 
 
 son, 2 Cr. & J. 94 ; 1 Roll. Abr. 27, pi. 664 ; Eastwood v. Kenyon, 11 A. & E. 
 
 49; Payne v. Wilson, 7 B. & C. 423, 438; Hunt w. Bate, Dyer, 272a; Broom 
 
 426; Lyon y. Lamb, Fell on .Guaranties, v. Batchelor, 1 0. B. 255. 
 2d ed. 36-40; Johnson v. Nicholls, 1 C. 
 
 lute such an original promise as falls without the statute of frauds. Duke 
 t\ McGregory, 3 Fogg N. H. 414; and see Howard v. Coshow, 3 Whittle- 
 sey (Mo.) 118; Townsley v. Sumrall, 2 Pet. 183 ; Eddy v. Roberts, 17 IlL 
 505 ; The Proprietors v. Abbott, 14 N. H. 159 ; Blake v. Parlin, 33 Me. 
 395 ; Moses v. Norton, 36 Me. 113 ; Leland v. Cregan, 1 McCord (N. C.) 100 ; 
 Esdelman v. Beecher, 6 Leg. Gaz. 330 ; Whitcomb v. Kephart, 50 Pa. St. 
 85; and article, Statute of Frauds, Am. Law Register, No. 10, October, 
 1874; Ni S. vol. 13; O. S. vol. 33. 
 
 * Yale V. Edgertou, 14 Minn. 194 ; Wyman v. Goodrich, 36 Wis. 31 ; 
 Ludwick V. Watson, 3 Oreg. 356 ; Hedges v. Strong, Id. 18 ; Stewart «. 
 Hinkle, 1 Bond, 506 ; McCreary v. Van Hook, 35 Tex. 631 ; Ashton v. 
 Bayard, 71 Pa. St. 139 ; Ellenwood v. Fults, 63 Barb. 331 ; Lessee v. 
 Williams, 6 Lans. 338; Putney v. Farnham, 27 Wis. 187; Carothers «. 
 Connolly, 1 Mon. T. 433 ; Britton ». Angier, 48 N. Y. 430 ; Wilson ». 
 Bea.vans, 58 111. 333; Brown v. Brown, 47 Mo. 130; Davis v. Banks, 45 
 Ga. 138; Barker «. Bradley, 43 N. Y. 316 ; Uhler ?j. Farmers' National 
 Bank, 64 Pa. St. 406; Harris v. Young, 40 Ga. 65; Besshears v. Rowe, 46 
 Mo. 501. 
 
 t The contract of forbearance, however, must be in writing. Watson v. 
 Randall, 30 Wend. 301 ; Smith v. Finch, 3 Scam. (111.), 331, and it must also 
 be a contract to forbear in a case where there is a good cause of action. 
 A promise to forbear prosecution of a claim which has not foundation 
 would form no consideration. Cabot v. Haskins, 3 Pick. 83 ; Freeman v. 
 Boynton, 7 Mass. 483 ; Story, Contracts, § 130 ; but see Hamaker v. Eberley, 
 2 Binn. (Penn.) 506, which holds that an agreement by a surety to forbear suit 
 against his principal after he shall have paid the debt of the principal, is a
 
 26 THE LAW OF GUARANTIES. 
 
 And, where tlie guaranty is given in consideration of 
 the plaintiff undertaking to forbear to sue for a certain 
 j)eriod, or when the nature of the transaction shows that 
 this was the intention of the parties, forbearance to sue 
 l)efore the expiration of the period agreed upon is a con- 
 dition precedent to the pLiintiff's right of action on tlie 
 guaranty/ It was formerly thought that forbearance to 
 sue for an indefinite period was not such a consideration 
 as could siipport a guaranty, unless, indeed, in those 
 cases where a particular act had to be done which re- 
 quired some time to do it, and in which the IsiW implied 
 a reasonahle time.^ Thus, forbearance per paulhdum 
 tempus^ or for some time, was held bad ; ^ though for- 
 bearance per magnum tempiis^ or for a reasonahle time,^ 
 which seems certainly to be equally indefinite, was held 
 good * These distinctions, however, no longer exist. 
 Again, in Ross v. Moss,^ which it will be seen presently 
 has been very much questioned, it was held, that the 
 
 ' Rolt V. Cozens, 18 C. B. 673. " Mapes i'. Sidney, Cro. Jac. 683. 
 
 " Semple v. Pink, 1 Exch. 74 ; Elkins * Johnson v. Whitchcott, 1 Roll. Abr. 
 
 V. Heart, Fitzg. 202; Payne v. Wilson. 24, pi. 33. 
 7 B. <fe C. 423. ' Cro. Eliz. 569. 
 
 =• 1 Roll. Abr. 23, pi. 26 ; Sackford's 
 Case, Cro. Eliz. 455. 
 
 good consideration to support a promise, although at the time of the 
 agreement the surety had no cause of action against the principal ; and it 
 was also held, in England, in Emptson v. Kuowles, 18 L. J. C P. 223, that 
 the consideration of forbearance was sufficient even though there were no 
 well-grounded claim. 
 
 * The forbearance must be for a reasonable time. Lonsdale «. Brown, 
 4 Wash. 148. And ^ general forbearance, without expressing any date, 
 was held to be a perpetual forbearance. Clark v. Russell, 3 Walls. 213 ; 
 Hamaker r. Eberley, 2 Binn. 506. And to relieve the guarantor from pay- 
 ing, if the original debtor was sued. Sidwell r. Evans, 1 Penn. 383. It 
 may, however, be shown that the forbearance was given, and that it was 
 reasonable. Elling v. Vanderlyn, 4 Johns. 237 ; King v. Upton, 4 Green- 
 leaf, 387 ; and it is immaterial whether the forbearance be in law or equity. 
 Hamaker v. Eberley, uli supra.
 
 INTRODUCTORY. 27 
 
 mere discontinuance of an action is not a sufficient con- 
 sideration to support a j^i'onnse, because the plaintiff 
 may commence a fresh action the next day. * On the 
 other hand, where the defendant, in consideration of the 
 phiintift' having, at the defendant's request, consented 
 to suspend proceedings against A., promised to pay a 
 certain sum on account of the debt, " on the 1st day of 
 April now next,'' it was held, that the consideration of 
 the promise must be taken as a consent to suspend pro- 
 ceedings at least until the first of April} In the recent 
 case of Harris v. Venables,^ the case of Eoss v. Moss, 
 supra^ was questioned. In Harris v. Venables, the 
 plaintiff, having presented a petition for winding up a 
 company, the defendant signed the following guaranty : 
 " In consideration of your withdrawing the petition you 
 have presented for winding up the company called John 
 King tfe Co., Limited, we agree to pay you all the costs 
 
 • Payne v. Wilson, 7 B. & C. 423. ' L. R. 7 Exch. 235. 
 
 ^ The forbearance need not amount to a total discharge. Hamaker v. 
 Eberley, 3 Binn. 506. 
 
 The decisions in this countiy vary in the different States upon the 
 above i^oints. In Vanslyck v. Pulver, Supp. to Hill & Denio, 47, it was 
 held that mere forbearance is not a good consideration for a parol promise 
 to pay the debt of another, but that it should be in -writing. Farley v. Cleve- 
 land, 4 Cow. 432 ; vide also Caperton i\ Gray, 4 Yerg. (Ten.) 563. Neither 
 is an agreement to pay the debt of another in consideration of forbearance 
 binding, unless accepted by the guarantor (Shupe v. Galbraith, 32 Penn. 
 St. 10), and an agreement to forbear, which gives to the holder no new 
 rights, is a contract void as without consideration. McCann v. Lewis, 9 
 Cal. 346. In Kuns v. Young, 134 Penn. St. 60, a promise, in consideration 
 of forbearance to pay the debt of an infant, was held to be valid, and in 
 the English case of Balfour v. Sea &c. Assurance Co. 3 C. B. (N. S.) 300, 
 forbearance of a debt due from a third person was held a sufficient con- 
 sideration for the giving of a note. ^ 
 
 An agreement to forbear may be implied, e. g., where the creditor re- 
 ceives interest in advance, the law would imply a contract of forbearance 
 during the time covered by that interest. Hamilton v. Winterrowd, 43 
 lad. 393.
 
 28 THE LAW OF GUARANTIES. 
 
 you have incurred of and in relation to such petition, 
 and to indemnify you against all costs (if any) you may 
 be liable to pay to the company, or to any other parties 
 appearing for or in reference to the petition. We fur- 
 ther agree to guarantee the payment to you, within 
 eighteen months from this date, by the company or the 
 liquidator thereof, of the principal of your debt of 722^." 
 It was held, that the consideration applied to both 
 promises, that the consideration was the withdrawal of 
 the then pending petition and not the forbearing for 
 eighteen months to proceed with any petition to wind 
 up the company, and that such a consideration was 
 sufficient to support the promise. Baron Bramwell, in 
 the course of his judgment, says, "First, Mr. Trevelyan^ 
 says, ' withdraw ' means 'not to present or persevere in 
 a petition against the company for the space of eighteen 
 months,' and he says it must mean this, because if it 
 only meant that the plaintiff would withdraw his 
 ]3etition for the moment, there would be no considera- 
 tion and no valid- contract. For this position he cites 
 Ross V. Moss, which certainly goes very far ; but 
 whether that case is good law, and would be decided in 
 the same way now, I will not sa}^ If a man e;^pressly 
 contracts that a particular petition being withdrawn, he 
 will pay a sum of money, that is a good contract ; it 
 was his own folly not to provide against another pe- 
 tition beino; filed. It is obvious that a real benefit is 
 gained by the withdrawal, because of the disinclination 
 to commence a new proceeding after so much labor 
 and expense have been wasted. I cannot but doubt, 
 therefore, whether Ross v. Moss is good law ; and I 
 think that a promise made in consideration of such an 
 
 ' The counsel for the plaiutiff.
 
 INTRODUCTORY. 29 
 
 agreement would be good." In this same case of Harris 
 V. Venables, in S2:)eaking of Semple v. Pink ^ (in which 
 the court seems to have thought that forbearance for an 
 indefinite period is bad), Cockburn, C. J., said, " But, 
 supposing that the sole consideration was the forbear- 
 ing to press for immediate 2:)ayment, I should not be 
 prepared to assent to the doctrine laid down in Semple 
 V. Pink ; " and Erie, J., said, " I concur with the Lord 
 Chief Justice with respect to the case of Semple v. Pink. 
 I do not assent to the doctrine that a guaranty in con- 
 sideration of an agreement to give time is void unless 
 the time to be given is defined in the contract." 
 
 It may, perhaps, be laid down as a safe rule, that 
 discontinuance of an action or other proceeding is a 
 sufiicient consideration to support a guaranty, notwith- 
 standing the risk which the promiser runs of commence- 
 ment of fresli proceedings immediately after the discon- 
 tinuance of the old proceedings; but that forbearance 
 to sue for an indefinite period, where there is no pro- 
 ceeding pending, is also a good consideration, because it 
 always means forbearance for a reasonable time, and 
 that what is a reasonable time must be left to the jury.^ 
 This construction of a forbearance for an indefinite 
 period is in accordance with decisions in the analogous 
 cases of guaranties given in consideration of j^ast and 
 future supply of goods, and where it seems to have been 
 held that the future supply must be reasonahle to sup- 
 port the promise of the surety, Avhere the instrument is 
 silent as to the extent of such a supply.^ In Oldershaw 
 V. King,* where the guaranty was given in considera- 
 tion of forbearance to press for immediate imyment, the 
 
 " 1 Exch. '74. 3 See infra. 
 
 ' Per Cockburn, C. J., in Oldershaw * JJhi supra. 
 
 V. King, 2 H. & N. 520.
 
 30 THE LAW OF GUARANTIES. 
 
 court expressed the opinion that this amounted to an 
 ao-reement to forbear for a reasonable time, and that 
 this, of itself, would l)e sufficient to support a guaranty. 
 As, however, in that case, the contract disclosed a suffi- 
 cient consideration, independently of such forbearance, 
 it became unnecessary for the court actually to decide 
 the point. 
 
 A promise of guaranty is sufficiently supported by 
 ?i future or executory consideration. Thus, an agreement 
 by the plaintiff for the future supply of goods, or for 
 a future advance, to a third j^^i'son, is a sufficient con- 
 sideration for the defendant's promise to be answerable 
 for the ]oayment to the plaintiff of ])ast and future 
 debts of such third person,^ "^ Where, however, there 
 is no agreement binding on the plaintiff' to supply the 
 goods, and no goods are in fact supplied, the guaranty 
 fails for want of consideration.^ Moreover, it seems 
 that the supply must be Ijona fide^ and to a reasonable 
 extent, and this C[uestion is for a jury to determine.'"^ 
 Subject, however, to this condition, the amount to be 
 supplied may be discretionary.^ Where it is evident 
 that the future supply is to be on the same terms, and 
 of a character similar to the past sui)ply, the plaintiff' 
 will not be entitled to recover on the guaranty, unless 
 it appear that this condition has been fulfilled.^ 
 
 Promises to be answerable for the behavior of third 
 persons in offices or employments are not invalid for 
 want of consideration, merely because the pi'omisee is 
 
 » White V. Woochvard, 5 C. B. 810: '" Johnson v. Nicliolls, 1 C. B. 251 ; 
 
 Chapman v. Sutton, 2 C. B. 634 ; Bovd Wliite v. Woodward, 5 C. B. 810, 818 : 
 
 V. Moyle, 2 C. B. 644 ; Bussell v. :Slose- Broom v. Bachelor, 1 H. <fe N. 255-264 ; 
 
 ley, 3 B. A- B. 211. AVood v. Benson, 2 C. <t J. 94. 
 
 ''■ Westhead v. Sproson, 6 H. <fe N. * White v. Woodward, uhi supra. 
 
 "728 ; Boyd v. Moyle, 2 C. B. 644-650. ^ Johnson v. Nicholls, mpra. 
 
 Poiil^ chapter TV.
 
 INTRODUCTORY. 31 
 
 not bound to employ sucli persons.^ * These promises 
 greatly resemble promises to be answerable for future 
 supplies or adv^aiices made to tliird persons.^ f In hotli 
 cases the guaranties are not mutually binding at first, 
 and are, therefore, revokable until the employment in 
 the one case, and the supply or advance in the other?- 
 Thus, in Offord v. Davies,^ it Avas held that a guaranty 
 to secure moneys to be advanced, to a third person on 
 discount, to a certain extent, " for the space of twelve 
 calendar months," is countermandable within that time, 
 hefore it has heen in any way acted iipon. Erie, C. J.^ 
 in his judgment in this case, says: "The promise, by 
 itself, creates no obligation. It is, in effect, conditioned 
 to be binding if the plaintiff acts upon it, either to the 
 benefit of the defendants, or the detriment of himself. 
 But until the condition has been at least in ])art ful- 
 filled, the defendants have the power of revoking it. 
 In the case of a simple guaranty for a proposed loan, 
 the right of revocation, before the proposal has been 
 acted upon, did not appear to be disputed. Then, 
 are the rights of the parties affected, either by the 
 promise being expressed to be for twelve months, or by 
 the fact that some discounts had been made before 
 that now in question and repaid ? We think not. 
 The promise to repay for twelve months creates no ad- 
 ditional liability on the guarantor ; but, on the contrary, 
 
 ' Kennaway v. Treleavan, ;") M. tfe W. ^ See ante, p. 30. 
 
 498 ; Lysaglit v. Walker, 5 Bligh, N. S. ' ISee post, chapter VI. 
 
 1 ; Newbury v. Armstrong, 6 Bing. 201. * 12 C. B. N. S. 748. 
 
 * See Kingston &c. Ins. Co. v. Clark, 33 Barb. 196; Thompson v. State, 
 37 ]\Iiss. 518; Welch w. Seymour, 28 Conn. 387; Holloman «. Langdon, 7 
 Jones L. 49 ; Brown v. Lattimore, 17 Cai. 93 ; State Treasurer r. Mann, 34 
 Vt. 371 ; Collyer r. Higgins, 1 Duvall (Ky.) 6 ; Lexington &c. R. R. Co. v. 
 Elwell, 8 Allen (Mass.) 371 ; Chelmsford Co. i\ Demarest, 7 Gray (Mass.) 1. 
 
 t Post^ chapter IV.
 
 32 THE LAW OF GUARANTIES. 
 
 fixes a limit in time, ])eyoud which his liability cannot 
 extend. And, -with res^^ect to other discounts, which 
 had been repaid, we consider each discount as a separate 
 transaction, creating a liability on the defendant till it 
 is repaid, and, after repayment, leaving the promise to 
 have the same operation tLat it had before any discount 
 was made, and no more." 
 
 We have already pointed out that a past or executed 
 consideration is insufficient to support a promise of 
 guaranty, but that an executory ov future consideration 
 is quite sufficient for the purpose.* Now, it is very 
 often by no means easy to determine whether, accord- 
 ing to the fair interpretation of the words of a guar- 
 anty, the promise of the surety is given for a past or 
 an executed consideration, such as j^ast advances to the 
 original debtor, or for a future or executory considera- 
 tion, such as future advances. Where the words of a 
 guaranty are capable of expressing either a past or a 
 concurrent consideration, the courts will adopt the 
 latter construction, ut res magis valeat quam pereat} 
 If, however, it appears that the parties did not neces- 
 sarily contemplate future advances, the guaranty will 
 be void.^ Also, if the consideration for the j^romise is 
 expressed to be 2:)ast and future adrances, w^hereas, as a 
 fact^ the consideration is entirely past or executed, and 
 not moved by a precedent request, it is certainly in- 
 valid.^ It seems that if the expression of the parties is 
 ambiguous, parol evidence is admissible to show that 
 the parties meant not a past, but a future supply of 
 
 ' Steele v. Hoe, 14 Q. B. 431 ; Ed- v. Swan, 1 Exeli. 154; Colbourn n. Daw- 
 Tvards v. Jevons, 8 C. & B. 436 ; Broom son, IOC. B. 773. 
 V. Batchelor, 1 H. & N. 255; Goldshede ' Bell v. Walsh, 9 C. B. 154. 
 
 = lb. 
 
 * Post, chapter IV.
 
 INTRODUCTORY. 33 
 
 goods.^ * In Edwards v. Jevens," the expression, in 
 consideration " of your giving credit," was held to be 
 equally applicable to future as to past advances. In 
 Haigh V. Brooks,^ the words used were, in consideration 
 " of your being in advance," and these were held not to 
 necessarily imply a past advance. So it appears that 
 the words " having released " may be 'prospective^ and 
 the words " having resigned " were held equally to im- 
 port either 2ipast or a concurrent consideration.^ 
 
 In Broom v. Batchelor,^ the guaranty was as fol- 
 lows : " In consideration of the credit given by B. to E., 
 I hereby agree to guarantee the payment of all bills of 
 exchange drawn by the said B. and accepted by E. 
 Also, I hereby agree to guarantee the payment of any 
 balance that may be due from the said E. to the said 
 B. This guaranty to include all bills of exchange 
 now running, as well as the balance of account at this 
 
 * Hoad V. Grace, V H. & K 494. * Butcher v. Steimrt, 11 M. <fe W. 857. 
 
 " 8 C. B. 436. " Steele v. Hoe, 14 Q. B. 431. 
 
 ' 10 A. <fe E. 309. '■ 1 H. <fe N. 255. 
 
 * Parol evidence was admitted to establish or explain various circum- 
 stances as to the nature and extent of the guaranty, in Cincinnati Ins. Co. 
 V. Harrison, 21 La. An. 379 ; French v. Marsh, 29 Wis. 649 ; Crist v. Burlin- 
 game, 62 Barb. 351 ; Griffin v. Rembert, 2 S. C. 410. 
 
 A signature by initials may be explained by parol evidence. Sanborn 
 r. Flagler, 9 Allen (Mass.) 574 ; Palmer v. Stephens, 1 Denio, 471. 
 
 The rule in this country is, that while no evidence other than the 
 writing itself, is admissible as to the language employed therein, and while 
 no other words are allowed to be added to it, or substituted for it, or to in 
 any way vary, contract, or extend it, parol evidence may, nevertheless, be 
 received to show that the instrument is altogether void, or that it never 
 was binding upon tlie parties, or that there was no consideration, or that 
 the parties had no capacity to contract, or that the instrtmient was never 
 properly executed or delivered, or that there was fraud in any way con- 
 nected with it. 1 Greenleaf on Evidence, § 284. 
 
 The situation of the parties, the acts to be performed, and the time, 
 
 place, and manner of performance, may be shown by parol. Merrill v. Gore, 
 
 29 Maine, 346. 
 
 3
 
 34 THE LAW OF GUARANTIES. 
 
 day." It appeared tliat, at the tinie of the giving of 
 the guaranty, there were bills running, and an account 
 due from E. to B., and future dealings between the 
 parties were contemplated. It was held that the guar- 
 anty extended to future as well as to past advances.* 
 
 In Mockett v. Ames,^ the plaintiffs supplied the de- 
 fendant's son wdth some beer, and on their refusing to 
 supply more without a guaranty, the son gave them 
 the following guaranty signed by the defendant: "I 
 hereby undertake to pay you for all the beer supplied 
 by you to the Star Brewery, 131 East street, Walworth, 
 on the completion of the purchase, which will take 
 place in a few days." It was held, that the promise was 
 prima facie a promise to pay for goods to be supplied ; 
 and semhle, that the promise also applied to the goods 
 already su2:)plied. 
 
 The Consideration for the j)romise of the guarantor 
 may be concurrent with such promise.^ f It need not, 
 however, be co-extensive with it,*^ for the courts refuse to 
 enforce a contract only where it is nudum pactum, that 
 is to say, where there is an absence of consideration, not 
 where the consideration is inadequate merely, for the 
 law has nothing to do with the prudence or imprudence 
 of the bargain.^ Thus, the delivering up of a worthless 
 
 ' 23 L. T. N. S. '729. see, however, Thomas v. Williams, 10 
 
 ' Butcher v. Htouart , 1 1 M. & W, B. &, C. 604. 
 85*7; G old shed e I'. Swan, 1 Exch. 154. * Per Erie, J., in Johnson w. Nicholls, 
 
 ' Johnson v. NlchoUs, 1 C. B. 251; 1 C, B. 251, 272; see also observations 
 
 * Woods V. Sherman, 71 Pa. St. 100. 
 
 t Leonard v. Vredenburgh, 8 Johns. 29 ; Bickford v. Gibbs, 8 Gush. 
 (Mass.) 156 ; Graham v. O'Mel, 2 Hall (N. Y.), 474 ; Campbell v. Knapp, 15 
 Penn. St. 27; Klein v. Currier, 14 111. 237; Conkey v. Hopkins, 17 Johns. 
 113 ; Gardiner v. Hopkins, 5 Wend. 23; Henderson v. Rice, 1 Cold. 223; 
 Krutz V. Adams, 7 Eng. 174. 
 
 A guaranty goes with the principal obligation, and is enforceable by 
 the same person who can enforce that. Claflin t. Ostrom, 54 N. Y. 581.
 
 INTRODUCTORY. 35 
 
 guaranty would be a good consideration for tlie promise 
 of the guarantor, for an inadequate security mny, from 
 various motives wbicL the courts will not inquire into? 
 be a very good consideration.^ A guaranty given for 
 an illegal consideration cannot, it is presumed, be en- 
 forced.^ * 
 
 It was once thought that a moral obligation was in 
 all cases a good consideration for a promise. In Lee v. 
 Muggeridge,^ a feme covert, having an estate settled to 
 her separate use, gave a bond for repayment, by her ex- 
 ecutors, of money advanced at her request on security 
 of that bond to her son-in-law. After her husband's 
 decease she wrote, promising that her executors should 
 settle the bond. It was held that the executors were 
 liable on this promise of the testatrix. It is conceived 
 that this case is not now good law, for it has been held 
 that, except under circumstances 23resently to be noticed, 
 a mere moral consideration is not sufficient to support a 
 promise.^ In Eastwood v. Kenyon,^ the facts were as 
 follows : The plaintiff was executor under the will of 
 the father of the defendant's wife, who had died intes- 
 tate as to his real estate, leaving the defendant's wife, 
 an infant, his only child. The plaintiff had voluntarily 
 expended his money for the improvement of the real 
 estate whilst the defendant's v/ife was sole and a minor, 
 and to reimburse himself borrowed money of one Black- 
 burn, to whom he had given his promissory note. The 
 
 of Cresswell, J., at pp. 251 and 211 of 1 '5 Taunt. 30. 
 
 C. B. ; Dutchman v. Tooth, V Scott, YlO ; * Littlefield v. Shoe, 2 B. <fe Ad. 811, 
 
 Edwards v. Baugh, 11 M. &, W. 641. 812 ; Wennall v. Adney, 2 B. ds A. 811. 
 
 ' Haigh V. Brooks, 10 A. & E. 309. ^ 11 A. & E. 438. 
 
 ' See the recent case of Wood v. 
 Barker, L. R. 1 Eq. 139. 
 
 * Sterns v. Marks, 35 Barb. 565 ; Purdy v. Peters, Id. 239 ; see note t, 
 p. 21.
 
 36 THE LAW OF GUARANTIES. 
 
 defendant's wife, while sole, had received the benefit, 
 and after she came of age assented to and promised to 
 pay the note, and did pay a year's interest. After the 
 marriage the plaintiff's accounts were shown to the de- 
 fendant, who assented to them, and it appeared that 
 there was due to the plaintiff a sum equal to the amount 
 of the note to Blackburn. The declaration, after alleg- 
 ing these facts, alleged that the defendant, in right of 
 his wife, had received all the benefit, and in considera- 
 tion of the premises, promised to pay and discharge the 
 amount of the note to Blackburn. It was held that, as 
 the consideration disclosed by the declaration for the 
 defendant's promise was a past benefit not conferred at 
 the request of the defendant, the declaration was bad. 
 Now here, no doubt, as well as in Lee v. Muggeridge, 
 supra, there was a perfect moral consideration for the 
 promise.* 
 
 Though, as a rule, a moral consideration will not, as 
 already pointed out, support an express promise, yet 
 there are certain cases, which we will now proceed to 
 notice, which are exceptions to the general rule. These 
 exceptions are summed up in a learned note to the case 
 of Wennall v. Adney,^ in the following words : — " That 
 an express promise can only revive a precedent good 
 
 ' 3 B. <fe p. 247, 249, 253. 
 
 * In general, the same rule as to the sufficiency of a moral consideration 
 "will apply in the case of a guaranty as in cases of other contracts. 
 The terms " moral obligation " are not to be understood in their broad 
 esthical sense ; but merely to denote those duties which would be enforced 
 at l^-w, tlii-ough the medium of an implied promise, were it not for some 
 positive rule which, with a view to general benefit, exempts the party in 
 the particular instance from legal liability. Am. Jur. N. 42, p. 227. A 
 mere moral obligation constitutes no legal consideration for a contract. 
 Updyke v. Titu3, 2 Beas. (N. J.) 151 ; Eakin ». Fenton, 15 Ind. 59.
 
 INTRODUCTORY. 37 
 
 consideration, which might have been enforced at law 
 through the niedium of an implied promise, had it not 
 been suspended by some positive rule of law; but can 
 give no original right of action, if the obligation on 
 which it is founded never could have been enforced at 
 law, though not barred by any legal maxim or statute 
 provision." ^ Thus the contracts of infants being void- 
 able only, may be ratified by express promise after age,* 
 while those of married women being void cannot be 
 revived by ratification. So, again, a contract which, for 
 want of written evidence required by statute cannot be 
 sued upon, may be revived by express promise, provided 
 the statute did not render the contract absolutely void 
 for want of written evidence.^ f Again, where a person 
 having entered into a written guaranty and become 
 liable upon it, verbally promised to make good such 
 liability, after the statute of limitations had barred the 
 right of action on the guaranty, it was held, that the 
 subsequent promise revived the right of action on the 
 guaranty.^ Such a promise would not now have this 
 effect unless it were in writing.* f 
 
 It will be seen, in a subsequent chapter,^ that a 
 surety is discharged from his obligation if the creditor 
 binds himself to give time to the princi2:)al debtor. 
 However, just as a subsequent promise may revive a 
 right of action on a guaranty, when such right has been 
 barred by the statute of limitations, so also it seems, 
 that if a creditor having given time to the principal 
 
 ' This note is cited with approval ' Gibbons v. M'Casland, 1 B. & A. 
 
 by Lord Denman, C. J., in Eastwood v. 690. 
 Kenyon, 11 A. & E. 438, 447. * 9 Geo. 4, c. 14, s. 1. 
 
 " Wilson V. MarshaU, 15 Ir. C. L. R. ' Chapter VI. 
 
 N. S. 466. 
 
 * See note *, p. 17. 
 
 t Post, Statute of Frauds.
 
 38 THE LAW OF GUARANTIES. 
 
 debtor makes a demaiul on the surety and receives a 
 promise from him, that is sufficient to sustain the demand, 
 not as the creation of a new, but as the revival of an old^ 
 debt.^ ^'■ 
 
 It appears from the very definition of a guaranty, 
 that the person giving it is not answerable till the default 
 of another person.^ 
 
 The liability of the former (the surety) is, therefore, 
 termed secondary^ whilst that of the latter (the principal 
 debtor) is termed primary. Betw^een the surety and 
 the principal debtor there is no privity of contract, for 
 the surety contracts with the creditor. 
 
 Thus, formerly, it was a rule of pleading, that if he 
 who was party or privy in estate or interest, or he who 
 justified in right of him who was party or privy, pleaded 
 a deed, he must make profert of it to the court.^ But 
 in the case of Bain v. Cooper,^ it was held, that a surety 
 might plead a release to his principal without making 
 profert of the deed. Parke, B., in his judgment, said, 
 "The general rule with resj^ect to profert is correctly 
 stated in Dangerfield ij. Thomas,^ viz., that a party is 
 not required to make profert of an instrument, to the 
 possession of which he is not entitled. The only excep- 
 tions to that rule are, where the party pleading acts as 
 tenant of another, or where there is a privity of interest 
 between them, as in the case of a release to a reversioner, 
 of which the tenant for life may avail himself So, also, 
 in the case of heir and executor, who may plead a release 
 
 ' Per Lord Eldon, in Mayhew v. profert has been rendered unnecessary 
 
 Crickett, 2 Swanst. 185, 192. by the C. L. P. Act, 1852 (15 & 16 Vict. 
 
 ' Fell on Guaranties, 2d ed. p. 1 ; c. 76), s. 55. 
 
 and Mallet v. Bateman, L. R. 1 C. P. "ID. P. C. 11, 14. 
 
 163. * 9 Ad. <& E. 292. 
 
 ' Dr. Leyfield's Case, 10 Co. 88; 
 
 * Post, Statute of Frauds.
 
 INTRODUCTORY. 39 
 
 to tlie ancestor or testator whom they respectively repre- 
 sent; so, also, with respect to several tortfeasors, /(?/", in 
 all these cases, there is a 2^rivity hetioeen the ^parties which 
 constitutes an identity of person ; hut there is no privity 
 hetioeen the surety and principal, for the surety contracts 
 with the creditor. They do not constitute one person in 
 law, and are not jointly liahle to the plaintiff T 
 
 As tlie contract of the surety is not with the debtor, 
 but with the creditor, the debtor has no means of mak- 
 ing the surety fulfil the contract of guaranty.^ The 
 consideration for the promise of the surety moves not 
 from the debtor, but from the creditor. The contract 
 of the surety does not, though it be under seal, extin- 
 guish the sim^^le contract debt of the principal.^ The 
 surety does not, by becoming such, discharge the obli- 
 gation of the principal, but contracts another which is 
 accessary to it.^ * 
 
 Except under certain circumstances, to be explained 
 hereafter,* the surety is not liable, on his guaranty, 
 where the orip-inal debt cannot be enforced at law. 
 This is in accordance with the general lex contractus^ 
 which prevents contracts from becoming operative, unless 
 and until all conditions precedent are fulfilled, and, as 
 is obvious, the existence of a principal debtor is a con- 
 dition precedent to the operation of the contract of 
 guaranty.^ f Thus, it is stated in Pothier on Contracts,^ 
 that, " As the obligation of sureties is, according to our 
 definition, an obligation accessary to that of a principal 
 
 * The Law of Debtor and Creditor, * Chapter II. 
 
 by C. Trower, p. 198. ' Mountstephen v. Lakeman, L. R. 
 
 " White V. Cuyler, 6 T. R. 176, 177. 7 Q. B. 196, 202. 
 
 ' Pothier on the Law of Obligations ° Evaus' ed. vol. i, p. 229. 
 
 (Erans' ed.), vol. i, pp. 229, 230. 
 
 * Packard v. Richardson, 16 Mass. R. 133. 
 t Id.
 
 40 THE LAW OF GUARANTIES. 
 
 debtor, it follows that it is of the essence of this obliga- 
 tion that there should be a valid obligation of a principal 
 debtor; consequently, if the principal is not obliged, 
 neither is the surety, as there can be no accessary with- 
 out a principal obligation, according to the rule of law, 
 cum causa 'principalis non consistit, nee cea quidem quce 
 seqiLuntui\ locum liabent. L. 178, ff. de Reg. Jur." 
 
 No special form or words are necessary to constitute 
 a guaranty, but the parties must manifest their inten- 
 tion clearly.* The common laiu did not even require 
 the contract of guaranty to be in ivriting^ but received 
 parol evidence of it. The 4th section of the statute of 
 frauds,^ however, enacts that no action shall be brought 
 whereby to charge defendant upon any special promise 
 to answer for the debt, deftmlt, or miscarriage of another 
 person, unless the agreement upon which such action 
 
 ' 29 Car. 2, c. 3. The following are consideration of marriage ; or upon any 
 
 the exact words of the 4th section, contract or sale of lands, tenements or 
 
 which, it will be seen, applies to vari- hereditaments, or any interest in or 
 
 ous transactions: — "And be it further concerning them; or upon any agree- 
 
 enacted, that no action shall be brought ment that is not to be performed within 
 
 whereby to charge any executor or the space of one year from the making 
 
 administrator upon any special promise thereof; unless the agreement upon 
 
 to answer damages out of his own estate, which such action shall be brought, or 
 
 or whereby to charge the defendant some memorandum or note thereof, shall 
 
 upon any special promise to answer for be in writing and signed by the party 
 
 the debt, default or miscarriages of to be charged therewith, or some other 
 
 another person ; or to charge any per- person thereunto by .him lawfully au- 
 
 son upon any agreement made upon thorized." 
 
 * Menard v. Scudder, 7 La. Ann. 385. The obligation of a guarantor 
 is that which the fair import of the language of the guaranty imposes upon 
 him. He cannot insist upon a condition if his engagement is absolute. 
 Simons v. Steele, 36 K PI. 73; Benjamin v. Hillard, 23 How. (U. S.) 149; 
 Scully V. Hawkins, 14 La. Ann. 183. But although the contract of guar- 
 anty is to be construed strictly, and — where the language is ambiguous — 
 strictly as against the guarantor (Bailey v. Larchar, 5 R. I. 530), the 
 law will imply no condition which is not incorporated into the contract 
 or fairly implied from its language. Bigelow v. Benton, 14 Barb. 123; 
 Wright V. Johnson, 8 Weud. 512 ; Hunt v. Smith, 17 Id. 17, 179 ; Dobbin v- 
 Braudley, Id. 422; Walrath «. Thompson, 6 HU1,540; SComst. (N. Y.) 185
 
 INTRODUCTORY. 41 
 
 shall be brouo-lit, or some memorandum or note thereof 
 shall be in writing, and signed by the party to be 
 charged therewith, or some other person thereunto by 
 him lawfully authorized.* The effect of this enactment 
 is not to render verbal guaranties void, but to prevent 
 their being enforced by action, suit in equity,^ or other 
 proceedings.^ It would seem that, whenever the statute 
 of frauds requires written evidence of a contract, such 
 evidence must exist before action brought.^ f 
 
 Many years after the passing of the statute of frauds, 
 it was found that that portion of the 4th section which 
 relates to guaranties was capable of being evaded in 
 certain cases, to which it was obviously necessary that 
 it should apply, in order to prevent the perpetration of 
 those frauds and perjuries against which this enactment 
 is undoubtedly leveled. The case of Pasley v. Free- 
 man* inaugurated the evasion in question. There an 
 action founded in tort for deceit was brought against 
 the defendant for inducing the plaintiff to supply with 
 goods on credit a man known to the defendant to have 
 no means, and whom he falsely, fraudulently and deceit- 
 fully represented to the plaintiff to be a person safely to 
 be trusted and given credit to. It was held that the 
 action might be maiutained.;[ Now^, here, the founda- 
 tion of the action was the false verbal affirmation of the 
 defendant, and there can be no doubt that, if the action 
 
 ' Per Lord Eldon, in Cooth v. Jack- 2 M. & W. 248 ; Reade v. Lamb, 6 Exch. 
 
 son, 6Ves. 72. 130. 
 
 "" Laythoarp v. Bryant, 2 Bing. N. C. . ' Bell y. Baoient, 9 M. & W. 36 ; but 
 
 735, 747; Crosby i;. Wadsworth, 6 East, see Fricker v. Thoiuliason, 1 M. & G. 
 
 602-611; Leroux v. Brown, 12 C. B. 772,773. 
 
 823-825; but see Carrington v. Roots, * 3 T. R. 51. 
 
 * Post, Statute of Frauds, 
 t Post, Statute of Frauds. 
 X Purdy V. Peters, 35 Barb. 239 ; and also ]}ost, chapter vi.
 
 42 THE LAW OF GUARANTIES. 
 
 bad not been sliaped upon a tort., but upon a contract, 
 treating the i'<?rZ'<:/^ affirmation as tlioiigli it were a s])ecial 
 promise to answer for the debt, default or miscarriage of 
 another person, tlie court would have held that the 
 plaintiif was precluded from recovering by the 4th sec- 
 tion of the statute of frauds. 
 
 In Lyde v. Barnard,^ Parke, B., says, " Since the case 
 of Pasley v. Freeman it is well known, from some re- 
 ported cases, and from others which have not found 
 their way into the books, that a practice had grown up 
 of fixing a person with the debt of another by parol 
 evidence of a representation as to the solvency or trust- 
 worthiness of a third person, and proof that credit was 
 given on the faith of that representation. The practice 
 did not extend to all cases within the statute of frauds. 
 That statute applies to a guaranty, for good considera- 
 tion, for a debt already contracted^ as well as where 
 credit was to be given ; but the evil existed only in 
 those cases in which credit was subsequently given, on 
 the faith of the representation made. In this respect 
 the practice of bringing actions on such parol representa- 
 tion was an evasion of the statute of frauds." 
 
 It seems that, in these actions for false representations 
 as to character and credit, the plaintiff almost invariably 
 succeeded. This remarkable fact induced Lord Tenter- 
 den to think that there was some latent injustice which 
 required a remedy, and he accordingly framed the 6th 
 section of 9 Geo. 4, c. 14^ (Lord Tenterden's Act), which 
 enacts, " That no action shall be brought whereby to 
 charge any person upon or by reason of any representa- 
 tion or assurance made or given concerning or relating 
 
 * 1 M. & W. 101. also observations of Lord Abinger, C. B., 
 
 "^ Such was the origin of this enact- and Parke, B., in Lyde v. Barnard, 1 M. 
 
 ment, according to Pollock, C. B., in <fe W. 101, 114, 117. 
 
 Tattcn V. Wade, 18 C. B. 371-381. See
 
 INTRODUCTORY. 43 ' 
 
 to the character, conduct, credit, ability, trade or deal- 
 ings of any other person to the intent or purjDose that 
 such other person may obtain credit, money or goods 
 upon,^ unless such representation or assurance be made 
 in writing, signed by the party to be charged therewith." 
 Since this enactment, therefore, whether the action be in 
 tort, for false representation, or in contract, on a special 
 promise to answer for another's default or miscarriage, 
 the defendant is not chargeable without ivritten evi- 
 dence. * When there are both ivritten and verbal 
 affirmations as to the character of another, and credit is 
 thereby obtained, an action will lie against the party 
 who made these affirmations, if the written representa- 
 tion be a material part of the inducement which moved 
 the plaintiff to give the credit.^ No action will, how- 
 ever, lie for a false representation unless the party making 
 it hnows it to be untrue, and makes it with the intention 
 of inducing the party to act upon it, and the latter does 
 so act upon it and sustains damage in consequence.^ It 
 is not, however, necessary that the defendant should 
 benefit by the deceit.* 
 
 In Haslock v. Ferguson,^ an attempt was made to 
 evade the 6th section of Lord Tenterden's Act, which, 
 however, happily proved unsuccessful. There, the ac- 
 tion was for money had and received, which form of ac- 
 tion is usually adopted whenever the defendant has 
 
 'Probably a mistake for "there- and see 2 Sm. L. C. 6tli ed. pp. Vl, 88; 
 
 upon." See observations of Parke, B., notes to Pasley v. Freeman, 1 Sm. L. C. 
 
 and Lyde v. Barnard, 1 M. & W. 101- 6tli ed. p. 165; Chandelor v. Lopus, and 
 
 115. notes thereto ; Corbett v. Brown, 8 Bing. 
 
 ' Wade V. Tatton, 25 L. J. C. P. 240 ; 33. 
 see also Tatton v. Wade, 18 C. B. 3*71. * Pasley v. Freeman, 3 T. R. 51 ; see 
 
 ' Behn v. Kemble, 1 C. B. N. S. also Foster v. Charles, 4 M. & P. 61 ; 6 
 
 260 ; see further, Ashlin v. White, Holt, Bing. 396 ; 7 Bing. 105. 
 387 ; Polhill v. Walter, 3 B. <fe Ad. 114 ; '7 Ad. cfe E. 86. 
 
 * Kimble v. Comstock, 14 Gray, 568; Mann v. Blancbard, 3 Allen 
 (Mass.), 386.
 
 44 THE LAW OF GUARANTIES. 
 
 received money wliicli belongs to the plaintiff ex aequo 
 et bono} The plaintiff's case was that B., through a 
 felse verbal representation of his credit made by H., 
 under defendant's sanction, had obtained goods from 
 him, by the sale of which sums were raised by B. and 
 handed over to the defendant in liquidation of certain 
 debts due to him from B. These sums the plaintiff', 
 therefore, sought to recover from the defendant. The 
 plaintiff was, however, nonsuited, on the ground that, as 
 there was no mode of fixing the defendant in this action, 
 except through the medium of evidence as to represen- 
 tation of character, the statute 9 Geo. 4, c. 14, s. 6, ap- 
 plied. In short, in order to prove that the plaintiff was 
 entitled, ex mquo et bono^ to the money claimed, it was 
 necessary to give in evidence the alleged false affirma- 
 tion, and this could not be done, as it was not in writing. 
 A rule for a new trial, which the plaintift''s counsel ob- 
 tained in this case, was ultimately discharged. 
 
 With regard to the question what representations 
 are within the statute, the following instances may be 
 noticed : A representation by the defendant that money 
 might be safely lent to A. B., because the title deeds to 
 an estate which A. B. had just bojight were in the de- 
 fendant's possession, and that nothing could be done 
 without the knowledge of the defendant, and that the 
 plaintiff would be safe in making the loan, is a repre- 
 sentation as to the ability of A. B., within 9 Geo. 4, c. 
 14, s. 6. This was decided in Swann v. Phillips.^ Lord 
 Deuman, C. J., in his judgment, said, that if words 
 spoken by the defendant amounted only to an assertion 
 that the defendant, being in possession of the title deeds, 
 
 ' Moses V. Macferlen, 2 Burr. 1000, Turnley v. Macgregor, 6 M. <fe G. 46 ; 
 1005. 8. c. 6 Scott, N. R. 906. 
 
 '' 8 Ad. <fe E. 457, 460, 461 ; see also
 
 INTRODUCTORY. 45 
 
 would know wliat A. B. was doing, the statute did not 
 apply. If tliey meant that A. B. might be trusted, then 
 they constituted a representation as to his credit and 
 ability. Littledale, J., in his judgment in the same 
 case, said : "The representation is entire; no one part 
 can be separated from the rest. In the ordinary course 
 of things, if a man states another to be a man of ability, 
 he is asked why he says so ; he may answer, because he 
 has had a legacy left to him, by way of enforcing his re- 
 presentation as to the ability. Here the substance of the 
 conversation is simililar ; the defendant says, ' You may 
 trust him, and my reason for saying so is, that I know 
 the estate which he has bouo:ht, and have his title 
 deeds.' That is one entire representation concerning 
 his credit," 
 
 An action cannot, it seems, be maintained against a 
 trustee for a false representation, by parol^ of the in- 
 cumbrances effected on the trust fund by the cestui que 
 trust, such a representation being within the statute.^ 
 In Turnley v. Macgregor,^ a similar point was raised, 
 though not decided. There the representation com- 
 plaitied of was, that a certain claim which a third per- 
 son alleged he had upon Government, would be sure to 
 be paid. Where, as in this case, the representation is 
 as to the condition or value of a particular part of a 
 man's property, whether it relate to or concern "his 
 character, conduct, credit, ability, trade or dealings," 
 must depend upon the facts of each particular case.'' 
 
 A representation made by the defendant as to the 
 credit and circumstances of a firm, of which he is a 
 member, is a representation as to the credit of " another 
 
 * Per Lord Abinger, G. B., and Gur- » 6 Scott, N. R. 90G; s. c. 6 M. & G. 
 
 ney, B., diss. Parke, B., and Alderson, 46. 
 
 B. ; Lyde v. Barnard, 1 M. & W. 101 ; ' See, on this subject, Lyde f. Bar- 
 
 1 Gale, 388. nard, 1 M. & W. 101.
 
 46 THE LAW OF GUARANTIES. 
 
 person," witliiu tlie meaning of the statute 9 Geo. 4, c. 
 14, s. 6.' 
 
 A question sometimes arises as to the person to 
 wLom the representation must be made, in order to 
 render the defendant liable. Upon this point it has 
 been decided that, in order to enable a person injured 
 by a false representation to sue for damages, it is not 
 necessary that the representation should be made to the 
 plaintiff directly ; it is suflScient if the representation 
 be made to a third person to be communicated to the 
 plaintiff, or to be communicated to a class of persons of 
 Avhom the plaintiff" is one, or even if it is made to the 
 public generally, with a view to its being acted on, and 
 the plaintiff as one of the public acts on it and suffers 
 damage thereby.^ * 
 
 As to the signature of the representation declared 
 on, it is to be observed that the 6th section of 9 Geo. 4, 
 c. 14, requires that the written representation shall be 
 signed by the party to be charged. Consequently, the 
 signature of an agent is not as a rule suflacient, because, 
 whenever the Legislature intends that the party to be 
 charged shall be bound by the signature of his a^ent, 
 there is an express enactment to that effect, and in other 
 cases the sio;nature must be the sio-nature of the actual 
 party to be charged.^ Where, however, the party to be 
 charged can sign in no other way but by its agent, this 
 
 ' Devaux v. Steinkeller, 8 Scott, 202. Bing. N. C. 776 ; which are decisions on 
 
 ' Per Quain, J., in Swift v. "Winter- the^rs^ section of 9 Geo. 4, c. 14, which 
 
 "botham, L. R. 8 Q. B. 244, 253. This section is in pari materia with section 
 
 case was reversed, on another point, by six of the same statute. See also obser- 
 
 the Exclieqiier Chamber, sec post, p. 47. nations of Quain, J., in Swift v. Winter- 
 
 = Clark V. Alexander, 8 Scott, N. R. botham, L. R. 8 Q. B. 244. 
 147; Hyde v. Johnson, 3 Scott, 289; 2 
 
 * McNaughton r. Conkling, 9 Wis. 316. Nor need it appear that the 
 fraudulent representations were the sole inducements to the sale. Shaw 
 V. Stine, 8 Bosw. 15^.
 
 INTRODUCTORY. 47 
 
 rule was, in the recent case of Swift v. Winterbotliam/ 
 lield by the Court of Queen's Bencli not to apply. Tbis 
 decision has, however, been recently overruled by the 
 Court of Exchequer Chamber.- In Swift v. Winter- 
 bothara, the facts were as follows : The plaintiff sued 
 W. and G. jointly for a false representation with respect 
 to the solvency of R. The defendant W. was sued as 
 the public officer of a banking company formed under 
 7 Geo. 4, c. 46, and the defendant G. was the manager 
 of one of their branches. The 2:)laintiif was the cus- 
 tomer of the S. bank, and requested the manager of that 
 bank to inquire for him as to R.'s credit. The manager 
 wrote a letter addressed to "the manager" of the de- 
 fendant's banking company, requesting information 
 whether R. was responsible to the extent of £50,000. 
 The defendant G. wrote a letter, which he signed as 
 manager, giving a favorable reply as to R.'s responsibil- 
 ity. The plaintiff, acting upon the faith of this letter, 
 supplied R. with goods, for which he never was paid, 
 in consequence of R.'s insolvency. The statement made 
 by G. was false to his knowledge. The defendant's 
 banking company had no knowledge, otherwise than 
 through G., that such a letter had been written, and 
 gave G. no express authority to write the letter, but 
 the writing of such letter was an act done within the 
 scope of the general authority conferi-ed on G. as man- 
 ager. It was held by the Queen's Bench, first, that the 
 sio;nature of G. as manao-er was the si2:nature, not 
 merely of an agent, but of the defendant's banking 
 company itself, and therefore the signature of the party 
 to be charged, within sect. 6 of 9 Geo. 4, c. 14, so as to 
 make the banking company liable. Secondly, it was 
 
 ' L. R. 8 Q. B. 244. ' 22 W. R. 319 (under the name of 
 
 Swift V. Jewsbury, P. 0. <fe Goddnrd).
 
 48 THE LAW OF GUARANTIES. 
 
 lield by tlie Queen's Beiicl), that tlie letters showed 
 that the comraimications were between the two banks, 
 and the ^j^presentation was not merely the representa- 
 tion of G. personally, but of the defendant's banking 
 company. Thirdly, it was held by the Queen's Bench, 
 that, inasraucli as it is usual for the customers of a bank 
 to make inquiries like those made by the plaintiff, it 
 must be taken to have been within the contemplation 
 of the defendants that the inquiry as to R.'s solvency 
 misfht have been made on behalf of a customer of the 
 S. bank, and that the representation might be commu- 
 nicated to him ; and that the banking company and G. 
 were liable to the plaintiff, he being the customer who 
 had made the inquiry. Fourthly, it was held by the 
 Queen's Bench, that, on the authority of Barwick v. 
 English Joint Stock Bank,^ the banking company was 
 liable for the false representation of its manager, made 
 in the course of conducting the business of the bank. 
 Lastly, it was held by the Queen's Bench, that, as all 
 persons directly concerned in the commission of a fraud 
 are to be treated as princij^als, the banking company 
 and G. might be sued jointly. As already stated, the 
 Court of Exchequer Chamber has reversed this decision 
 of the Queen's Bench, holding, on the facts of the case^ 
 that there was no intention to bind the bank, and the 
 majority of the court expressing a strong opinion that 
 the signature of the manager of a banking company to 
 a representation as to the credit, &c., of another person 
 is not the signature of the " party to be chai'ged," with- 
 in the meaning of 9 Geo. 4, c. 14, s. 6.^ 
 
 ' L. R. 2 Ex. 2.59. tlie net of their manager, it might not 
 
 ' It is right to mention, however, be open to them to repudiate the liabil- 
 
 that, -while expressing this opinion. Lord ity accruing to them by his act. See 
 
 Coleridge, C. J., stated that if the bank- also Barwick v. English Joint Stock 
 
 ing company had actually profited by Bank, L. R. 2 Ex. 259.
 
 INTRODUCTORY. 49 
 
 Having now called attention to tlie evasion of the 
 statute of frauds, and to the legislative remedy that 
 was thereupon applied, it is proposed to return to a 
 consideration of the 4th section of the statute of frauds. 
 And in the following chapter it is intended to discuss 
 in detail the operation of the statute of frauds on 
 promises to guarantee.
 
 CHAPTER II. 
 
 THE OPERATION OF THE STATUTE OF FRAUDS ON 
 PROMISES TO GUARANTEE. 
 
 The 4tli section of the statute of frauds ^ ^ has, it is 
 ahnost needless to say, a very extensive and important 
 "bearing upon the su1)ject of guaranties. The part of the 
 
 ' 29 Car. 2, c. 3. 
 
 * See note *, page 24. The section treated of in the text has been en- 
 acted in the various States, as follows : 
 
 Alabama. Code, 1852, sees. 1320, 1321, 1551, 1552, 1553, 2198. 
 
 Arkansas. (English's Digest), chapter 73, sees. 1, 2, 10, 11, 12, 13. 
 
 California. Act of April 19, 1850, chapter 47, sees. 6, 7, 8, 9, 10, 12, 
 13, 14, 19, 21, 25. 
 
 Connecticut. Revised Statutes, 1849, Title 19, sees. 1, 2 ; Title 29, chap- 
 ter 1, sees. 8, 14. 
 
 Delaware. Eevised Code, 1852, chapter 63, sees. 5, 6, 7 ; chap. 120, sec. 3. 
 
 Florida. (Thompson's Digest), 1847, second division, Title 1, cap. 1, 
 sees. 1, 2, 3; Title 4, cap. 3 sees. 1, 2. 
 
 Georgia. (T. R. Cobb), New Digest. Appendix III. [All English 
 datutes in force.] 
 
 Illinois. Eevised Statutes, 1845, chapter 44, sees. 1, 2. 
 
 Indiana. Revised Statutes, 1852, chapter 42, sees. 1-7. 
 
 Iowa. Code, 1851, sees. 1205, 2409-2412. 
 
 Kansas. Compiled laws, 1862, chapter 102, sees. 4, 5. » 
 
 Kentucky. Revised Statutes, 1852, chapter 24, sec. 3, chapter 22, 
 sees. 1, 2. 
 
 Louisiana. In this State the civil law prevails. Morgan's Civil Code 
 of Louisiana, art. 1772, et seq., art. 3004, et seq., Ringgold v. Newkirk, 3 
 Ark. 96. 
 
 Maine. Revised Statutes, 1840, chap. 91, sees. 30, 31 ; chap. 136, sees. 1-4. 
 
 Maryland. Kilty's report of English Statutes, p. 242 (Alexander, 
 1870). [All English statutes in force.] 
 
 Massachusetts. General Statutes, 1800, part II, Title 1, chapter 89; 
 Title 4, chapter 100; Title 6, chapter 105. 
 
 Michigan. Revised Statutes, 1846, Title 19, chapter 80, sees. 6-10 ; 
 chapter 81, sees. 2-6. 
 
 Minnesota. Revised Statutes, 1866, chapter 41, Title 2, sees. 6-13.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 51 
 
 section which deals with this subject is the second clause. 
 That clause is, in substance (and omitting words not re- 
 lating to the present subject), in the following terms: 
 " No action shall be brought whereby to charge the de- 
 fendant upon any promise to answer for the debt, default 
 or miscarriage of another person, unless the agreement or 
 some memorandum or note thereof shall be in writing 
 and signed by the party to be charged therewith or 
 some other person thereunto by him lawfully authorized." 
 The 2d clause of the 4th section of the statute of 
 frauds is carefully and accurately drawn, and important 
 decisions have taken place upon every word of it. It 
 
 Mississippi. (Hutchinson's) Code, chapter 47, art. 1, sec. 1. 
 
 Missouri. Revised Statutes, 1845, chapter 68, sees. 1-7. 
 
 Nemda. Laws, 1 861, chapter 9, sscs. 55, 56, 57, 58, 59, 60, 62, 63, 70. 
 
 Ntw Hampshire. Revised Statutes, 1843, chapter 130, sees. 13, 13; 
 chapter 180, sees. 7-9. 
 
 New Jersey. Revised Statutes, 1847, Title 17, chapter 1, sees. 9, 10; 
 part of 11-15. 
 
 Neio York. Revised Statutes, 1830, part II, chapter 7, Title 1, sees. 
 6-10; Title 2, sees. 2-4 (3 R. S. 221, 5th ed. ; as amended by Laws of 
 1863, chapter 464, p. 802. 
 
 North Carolina. Revised Statutes, Vol. I, chapter 50, sees. 8, 10. 
 
 Ohio. Revised Statutes (Swan's edition), 1854, chapter 49, sees. 4, 5. 
 
 Oregon. Civil Code, Title 8, chapter 8, sees. 771, 772, 775, 776. 
 
 Pennsylvania. (Dunlap's Laws), cap. 59. '• An Act for the Preven- 
 tion OF Frauds and Perjuries." " Frauds and Perjuries " (Bright- 
 ley's Purdon), 497. 
 
 Rhode Island. Revised Statutes, 1844, page 222, sec. 1 ; sects. 1, 2, of 
 " An act Regulating Coneyances op Real Estate, " i>age 257, Re- 
 vised Statutes. 
 
 South Carolina. Brevard's Digest, Vol. I, Title 84. [All English 
 statutes in force.] 
 
 Tennessee. (Scott's edition) Laws, Vol. I. chapter 25, sec. 1. 
 
 Texas. Act of January 18, 1840, sec. 1. 
 
 Vermont. Revised Statutes, 1839, Title 14, chapter 60, sees. 21-24 ; 
 Title 15, chapter 61, sees. 1-3. 
 
 Virginia. Code (Patton and Robinson), 1849, chapter 143, sees. 1, 2. 
 
 Wisconsin. Revised Statutes, 1849, Title 20, chapter 75, sees. 6-10 ; 
 chapter 76, sees. 3, 3, 4, 8.
 
 52 THE LAW OF GUARANTIES, 
 
 is, tlicrofore, proposed to consider it word by word, and 
 to discuss (A.) the operation of the statute in cases 
 which it atFects, as tliat oj)eration is pointed out by the 
 words " no action shall be brought ; " (B.) to what kind 
 o^ promises the section applies, as ascertained by the 
 phrase " any si-)ecial promise ; " (C.) the hind of liahiliUj, 
 promises to answer for which fall within the section as 
 being intended by the words •' the debt, default or mis- 
 carriage of another." 
 
 (A.) The operation of the statute upon cases to 
 which it applies, is, and doubtless its framers intended 
 that it should be, governed by the words " no action 
 shall be brought." These words should, therefore, be 
 noted. Thus, it seems that the courts of common law, 
 by virtue of that jurisdiction which they possess over 
 their own officers, will sometimes enforce a verbal 
 guaranty against a person who has given it in the ca- 
 pacity of attorney.^' This was decided in the case of lie 
 Greaves.^ There an action having been commenced in 
 in the Common Pleas, and judgment obtained, Greaves, 
 an attorney of -the Court of King's Bench (but not an 
 attorney of the court of Common Pleas), who was at- 
 torney for the defendant, proposed to compromise the 
 action, and agreed verbally to give his two promissory 
 notes for the debt and costs, payable at six and nine 
 months, in consideration of the plaintiff staying pro- 
 ceedings. This was accepted by the plaintiif, but 
 Greaves afterward declined to give the notes. There- 
 upon a rule was obtained in the King's Bench, calling 
 upon Greaves to pay the debt and costs. The court, in 
 making this rule absolute, said, " Even supposing the 
 
 ' I Cr. & J. 374, n. 
 
 * Browne on Statute of Frauds, sec. 138.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 53 
 
 undertaking to be void by the statute of frauds, the 
 court might exercise a summafy jurisdictioyi over one 
 of its officers, an attorney of the court. The undertak- 
 ing was given by the party in his character of attorney, 
 and in that character the court may compel him to per- 
 form it. An attorney is conusant of the Law, ami, if he 
 give an undertaking which he must know to be void, 
 he shall not be allowed to take advantao^e of his own 
 wrong, and say that the undertaking cannot be enforced." 
 Again, it appears that an agreement, required by the 
 4th section to be in writing, may be proved by ^j>a7'oZ 
 evidence in order to support a plea.^ So a ver[)al guar- 
 anty is so far good, that, if money be paid under it, it 
 cannot be recovered back.^ Another consequence of 
 the determination that the 4th section of the statute of 
 frauds applies not to the validity of the contract, but 
 only to the procedure, is that an action will not lie in 
 the courts of this country^ to enforce an oral agreement 
 made in France (and valid there), which, if made in 
 England could not, by reason of the 4th section of the 
 statute of frauds, have been sued u]3on.^ This is in 
 accordance with the rule applicable to foreign contracts, 
 namely, that so much of the law as affects the rights 
 and merit of the contract, all that relates " ad litis de- 
 cisioneni^'' is adopted from the foreign country ; so much 
 of the law as affects the remedy only, all that relates 
 " ad litis ordinationem " is taken from the lex fori of 
 that country where the action is brought.* 
 
 Another question, which may arise upon the meaning 
 of the words, " No action shall be brought," is this : it 
 sometimes happens that a promise is, as to pa)'t of the 
 
 ' Lavery v. Turley, 30 L. J. Ex. 49 ; ' Leroiix v. Browc, 12 C. R. 801. 
 
 see also Macrory v. Scott, 20 L. J. Ex. 9t). * I'er Tinclal, C. J., in lluber ». 
 
 ' Shaw V. Woodcock, 7 B. <fe C. 73. Steiner, 2 Scott, 304-326,
 
 54 THE LAW OF GUARANTIES. 
 
 thing promised, within tlie statute of frauds, but as to 
 the vemaimJei\ is not "within the statute. Tiie point 
 then arises, whether an action can l)e maintained upon 
 the part not within the statute. The words of the sec- 
 tion do not, it will be noted, make the wbole promise 
 void, but simply say, " No action shall be brou^jjht." 
 The rule applicable to such cases appears to be this : 
 if the parts are severaUe^ an action will lie on the part 
 Outside the statute; but, if the parts are inseparahle, 
 then no such action lies. In the case of Chater v. 
 Becket,* the plaintiff and defendant were both creditors 
 of one Harrison, who had become insolvent, and with 
 whom all the creditors, but the plaintiff, were anxious 
 to come into a composition. The plaintiff, however, 
 declined to accept the composition unless certain ex- 
 penses he had b^jen put to were paid him, as well as the 
 proposed composition. The defendant, accordingly, ver- 
 bally promised to pay him what he asked, and subse- 
 quently paid the amount of the composition, but refused 
 to pay the expenses ; whereupon the plaintiff paid the 
 expenses incurred by him, and brought this action 
 against the defendant to recover them. The plaintiff 
 declared upon the special agreement, and for money 
 paid to the defendant's use. Two points were made : 
 lirst, whether the special agreement was void by .the 
 statute of frauds? and, secondly, supposing it to be so, 
 whether the plaintiff could not recover the costs paid to 
 the attorney as for money paid to the defendant's use? 
 Lord Kenyon, in delivering his opinion said : " The 
 promise, therefore, was certainly void in part by the 
 statute: and the agreement being entire, the plaintiff^ 
 cannot now separate it and recover on one part of the 
 
 M T. R. 201.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 55 
 
 agreement, the other being void ; and, if that agreement 
 be void, there is an end of the case ; for where there is 
 an ex23ress promise, another promise cannot be implied." 
 Grose, J., in the same case, said: "It seems admitted 
 that part of this promise is void by the statute; but it 
 was one indivisible contract, and the plaintiff cannot 
 recover on any part." 
 
 The same point was decided in Thomas v. Williams.* 
 There the verbal promise of the defendant was to j)ay 
 rent actually due to the plaintiff from A., and also rent 
 to hecome due, in consideration that the' plaintiff* would 
 not distrain A.'s goods. It was held, by the court, that 
 as the promise to pay rent, to become due, was void by 
 the statute of frauds, the entire promise was therefore 
 void. So also, in the old case of Lexington v. Clarke,^ 
 it appeared that the plaintiff allowed the widow of A. 
 B. to retain possession of certain premises which the 
 plaintiff had demised to A. B., on receiving from her a 
 promise to pay arrears of rent, due from A. B. at the 
 time of his death, and also £260 more. It was argued 
 at the bar, that, inasmuch as the promise to pay rent in 
 arrear was alone affected by the 4th section of the 
 statute of frauds, the promise might stand good as to 
 the £260. "But, by the opinion of all the court, judg. 
 ment was given for the defendant ; for the promise as 
 to one part being void, it cannot stand good for the 
 other ; for it is an entire agreement, and the action is 
 brought for both the sums, and indeed could not be 
 otherwise without variance from the promise." * 
 
 ' 10 B. & C. 664. « 2 Ventr. 223. 
 
 * No action will lie upon that portion of the contract wbicli, if it stood 
 alone, could be enforced, it being clear of the statute of frauds, because 
 the effect would be to enforce the other, namely, by making the violation
 
 66 THE LAW OF GUARANTIES, 
 
 Where, however, from the nature of the case, it is 
 possible to separate that part of the promise which is 
 within the statute from that which is not, the plaintiff 
 can recover upon the latter portion. * This was decided 
 in the case of Wood v. Benson.^ There the guaranty- 
 was in the following words: "I, the undersigned, do 
 hereby engage to pay the directors of the Manchester 
 Gas Works, or their collector, for all the gas which may 
 be consumed in the Minor Theatre, and by the lamps 
 outside the theatre, during the time it is occupied 
 •by my brother-in-law, Mr. Neville ; and I do also engage 
 to pay for all arrears which may now be due." An 
 action on assumjysit was brought upon this guaranty, 
 and there was also a count for gas and goods sold and 
 delivered. The defendant pleaded the general issue. 
 It was objected, at the trial at Nisi Prius, that there 
 w^as no consideration apparent on the face of the instru- 
 ment for the promise to pay the arrears, and that the 
 agreement being consequently void as to part, under the 
 statute of frauds, was also void as to the whole. The 
 jury were directed by the judge to find for the plaintiff, 
 with leave to the defendant to enter a nonsuit. A rule 
 having been subsequently obtained and argued. Lord 
 Lyndhurst, C B., in delivering judgment, said: "The 
 case of Thomas v. Williams may, as it appears to me, be 
 supported. Part of the contract in that case was void 
 by the statute of frauds. The declaration stated the 
 entire contract, including that part of it wliich was 
 
 ' 2 C. <fe J. 94. 
 
 of it the ground of an action. Browne Stat. Frauds, sec. 152 ; Van Alstino 
 t). Winple, 5 Cow. (N. Y.) 162 ; Patterson v. Cunningham, 3 Fairf. (12 Me.) 
 6C6; Goodrich r. Nickels, 2 Root, 498.; Rice v. Peet, 15 Johns. 503; but 
 see Couch v. Meeker, 2 Conn. 302. 
 * Couch v. Meeker, 2 Conn. 302.
 
 OPERATION OF THE STATUTE OF FliAUDS, ETC. 57 
 
 void, and therefore tbe contract, as stated in the declar- 
 ation, was not proved. The same observation applies 
 to Lexington v. Clarke and Chater v. Becket, and I 
 have no disposition to complain of those decisions, be- 
 cause in none of those cases does there appear to have 
 been any count upon which the plaintiff could recover. 
 But the question in the present case is widely different. 
 The contract resolves itself into two parts. One is, ' I 
 engage to pay for all the gas which may be consumed,' 
 &c. ; that is a distinct engagement. The other part is, 
 'And I do also engage to pay all arrears,' <fec. Now, 
 this latter part cannot be sustained, for if it be a dis- 
 tinct engagement, there is no consideration to support 
 it expressed on the instrument.^ The question then is, 
 if I undertake to pay for goods which may be supplied, 
 though there is no promise to supply the goods, whether, 
 when the goods are supplied, a right of action does not 
 accrue to recover the amount. It is quite clear that it 
 does. And thougb the latter part of the engagement 
 cannot be sustained under the first part of the engage- 
 ment, the plaintiff is entitled to recover for the gas 
 subsequently supplied, and therefore the verdict must 
 stand for £15 4s. 6d." Bayley, B., in his judgment in 
 this case, says : " In each of the cases referred to for the 
 pmpose of showing that the contract, if void in part was 
 void in toto^ there was a failure of proof. The declara- 
 tion in each of those cases^ stated the entire promise, as 
 well that part which was void as that which was good. 
 I think, therefore, that these cases are to be supported on 
 the principle of the failure of proof of the contract stated 
 in the declaration, but that they do not establish that 
 
 ' This is now no longer necessary ; Lexington v. Clarlic, 2 Vent. 223 ; 
 see 19 & 20 Vict. c. 97, s. 3. Thomas v. Williams, 10 B. & C. G64. 
 
 " J. e., Chater v. Becket, 7 T. R. 201 ;
 
 68 THE LAW OF GUARANTIES. 
 
 if you can separate tLe good part from the bad you may 
 not enforce such part of the contract as is good. I am, 
 therefore, of opinion that the verdict must stand for the 
 amount of the gas subsequently supplied." * 
 
 (B.) The section of the* statute of frauds, which is now 
 under consideration, next proceeds to point out the Mnd 
 of ijvomises to which it is intended to apply. For it 
 was not intended that the statute should apply to all 
 possible cases in w'hich a person is liable to answei', as 
 on a contract, for the debt, default or miscarriage of 
 another, and it does not so apply. The kind of promises 
 to which it is applicable are ascertained by the words 
 " any special promise." f 
 
 Thus, for instance, the question hag been raised 
 whether an indemnity is a promise which falls within 
 the statute. % Upon this cmestion, however, it appears 
 
 * Couch v. Meeker, 2 Conn. 303. 
 
 t Eveiy actual promise is special. The term special promise as used in 
 the statute seems to have no olher effect than to show that promises in fact, 
 and not promises implied by law, are referred to. Gage v. Wilcox, 6 Conn. 
 81 ; Pike v. Brown, 7 Cush. 133 ; Goodman v. Gilbert, 9 Mass. 510; Allen 
 V. Pryor, 3 A. K. Marsh. (Ky.) 305. 
 
 J Browne Stat. Frauds, sec. 158, et seq. The promise to indemnify is 
 in reality a promise to pay a debt which the promisor may himself be 
 found to owe, and so in one sense outside of the statute. See Kelsey v. 
 Hines, 13 Ohio, 340; Kiugsley r. Balcombe, 4 Barb. 131; Harrison v. Saw- 
 tell, 10 Johns. 242; Caiville v. Crane, 5 Hill, 483; Smith v. Sayward, 5 
 Greenl. 501 ; Perley v. Spring, 12 Mass. ; Beaman v. Russell, 30 Vt. 205 ; 
 and Holmes r. Knights, 10 N. H. 175. In Vermont, in Georgia, and Ken- 
 tucky, promises to indemnify have been held not within the statute. 
 Jones r. Shorter, 1 Kelley, 294; Dunn r. West, 5 B. Mon. (Ky.) 382; Aid- 
 rich r. Ames, 9 Graj', 76. In New York, Chapin v. Merrill, 8 Wend. 657, 
 which held that the promise to indemnify must be in writing, was 
 overruled in Kingsley v. Balcomb, 4 Barb. 131 ; and Carville ». Crane, 
 5 Hill, 483. In Maine, the old doctiiae that a promise to indemnify 
 was not within the statute, was followed ; but the two cases on which 
 the decision rested are disputed and criticised in note to Browne Stat. 
 Frauds, sec. 160.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 5i> 
 
 that no general rule can be laid down. It was, indeed, 
 stated, as a general proposition, in Thomas v. Cooke,^ 
 that a promise to indemnify does not fall within the 
 words or the policy of the statute of frauds. That 
 proposition was, however, denied by the full Court of 
 Queen's Bench, in Green v. Cresswell.^ This last named 
 case, which we shall discuss in detail later on, was, how- 
 ever, disapproved of, though not reversed, by the Court 
 of Exchequer Chamber, in Cripps v. HartnoU.^ So far, 
 therefore, as concerns express promises to indemnify, 
 perhaps the best solution of the difficulty is that sug- 
 gested in Smith's Mercantile Law,'^ namely, " that a 
 promise to indemnify may or may not be within the 
 statute, according to circumstances." ^ There are, how- 
 ever, many cases in which the law imi&s indemnities 
 in obedience to principles of justice.® And, so far as 
 regards implied indemnities, it may safely be stated 
 that they are clearly excluded from the operation of the 
 4th section of the statute of frauds. This results from 
 the adoption of the phrase " special promise," which is 
 evidently opposed to the phrase " expi^ess promise." "^ 
 Of these this work does not profess to treat. It has 
 also been made the subject of discussion whether or 
 not a promise to give a guaranty (as distinguished 
 from a promise to procure one) ^ is a special promise 
 which falls within the statute. It is, however, obvious 
 
 ' 8 B. & C. 728. Green v. Cresswell, 10 A. & E. 453 ; 
 
 * 10 Ad. & E. 453. Cresswell v. Wood, 10 A. & E. 460; 
 ' 4 B. & S. 414. See also the cases Wincwcrlh v. Mills, 2 Esp. 484 ; Mallet 
 
 of Reader v. Kino^liam, 13 C. B. N. S. v. Bateman, L. R. 1 C. P. 163. 
 
 344; Batson v. Kinj^, 4 H. & N. 739 ; " See Chitty on Contracts, 9lli ed. p. 
 
 Fitzgerald v. Dressier, T C. B. N. S. 374, All, where several examples of implied 
 
 385, 386, where the case of Green v. indemnities are given. 
 
 Cresswell is observed upon. ' Throop on tlie Validity of Verbal 
 
 * Note k, 7lh ed. p. 462. Agreements, p. 166. 
 
 * For instances of indemnities with- " See Bushel! v. Beavan, 1 Bing. N. 
 in the statute of frauds, see Adams )'. C. 103, as to promises to /;r<;cw?-e a guar- 
 Dansey, 4 M. & P. 245; 6 Bing. 506; auty to be signed by a third person.
 
 60 THE LAW OF GUARANTIES. 
 
 that a promise to give a guaranty at a future time en- 
 tirely falls witliia- tlie mischief which the enactment 
 was intended to guard against, and, indeed, that if the 
 statute could be evaded by making such a promise it 
 would be useless.* Accordingly it has been held that 
 a promise to give a guaranty must be in writing. This 
 was decided in Mallet v. Bateman.^ Pollock, C. B., in 
 delivei'ing the judgment of the Court of Exchequer 
 Chamber in this case, said: "My brother Blackburn 
 has, in the course of the argument, stated that which 
 appears to me to dispose of this case, viz., that a con- 
 tract to give a guaranty is required to be in writing as 
 much as a guaranty itself If we were to hold that a 
 contract of guaranty must be in writing, but that a 
 contract to give a guaranty need not, we should, I 
 think, be committing the same mistake as our predeces- 
 sors did with reference to the statute of uses. The 
 object of that statute was that the j^ossession should 
 go along with the use ; but a construction was early 
 adopted whereby the possession should go to A. in 
 trust for B., and so the effect of the statute was simply 
 to add a few words to the conveyance. Whether the 
 decisions of the courts of equity as to uses and trusts 
 were beneficial or not I do not stop to inquire, but un- 
 doubtedly the whole doctrine arose out of a desire to 
 frustrate the intention of the statute of uses. I trust 
 we shall not commit a similar mistake in construing 
 the statute now under consideration." 
 
 (C.) Having pointed out the operation which it is 
 intended to have, and the Mnd of 'proTnises to which it 
 is intended to apply, the section under discussion next 
 
 ' L. K. 1 C. P. 163 ; s. c. (in court below), 10 C. B. N. S. 530. 
 
 * Browne on Stat. Frauds, sec. 159; Kelsey «. Hibbs, 13 Ohio, 340.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. CI 
 
 proceeds to define the hind of liability^ promises in re- 
 spect of which are intended to be affected. This it 
 does in the words " the debt, defiiult or niiscarriaire of 
 another." These words, it will be at once seen, are most 
 comprehensive. And they have been made the subject 
 of a good deal of learned discussion. To commence 
 with the words " debt, default or miscarriage : " it would 
 seem that these three words, "debt, default or miscar- 
 riage " point to three distinct kinds of guaranty, namely, 
 (1) guaranties for the payment of a " debt " already con- 
 tracted by another person ; (2) guaranties against the 
 '''' default'''' oi another person, e. 6"., for the payment of 
 debts to be contracted by another person, or against loss 
 that may occur from another's future breaches of duty; 
 and (3) guaranties against the " miscarriage " of another 
 person, i. d, against loss that may occur from another's 
 past ov future breaches of duty. 
 
 The words " debt, default or miscarriage " have fre- 
 quently been commented upon, and it has been doubted 
 whether the word "miscarriage" is not superfluous. 
 Certainly the word " default " is large enough to include 
 promises to be answerable ^oy future breaches of contract^ 
 as well as promises to be answerable iox future breaches 
 of duty. And, on the other hand, it appears that the 
 word " miscarriage " can clearly only apply to bi'eaches 
 oi duty^ and cannot apply to breaches of contract. But' 
 it is submitted that, unlike the word "defiuilt," the 
 word " miscai'riage" includes jyast breaches of duty as 
 well as future breaches, and that, therefore, it is not a 
 superfluous word at all. 
 
 Mr. Throop, in his able work on theValidity of Verbal 
 Agreements,^ says that, but for the word " default " oc- 
 
 " Page 192.
 
 02 THE LAW OF GUARANTIES. 
 
 curring in the 4tli section of the statute of frauds, the 
 words " debt" and "miscarriage " would, perhaps, have 
 been confined to past transactions, being peculiarly ap- 
 plicable to such. Now, it is submitted that, though the 
 Avord " debt " is certainly peculiarly api)licable to past 
 transactions, the word " miscarriage " is not, and that it 
 clearly includes hoi\\ past and future breaches of duty. 
 If this view be correct, then it would seem that the 
 word " default " must have been used by the framers of 
 the 4tli section in a restricted sense, namely, as applying 
 merely to future delts, and not to future breaches of 
 duty, though our courts have certainly treated it as 
 equally applicable to both. 
 
 If, however, the legislature had omitted to employ 
 the word " miscarriage," the 4th section of the statute 
 of frauds might well have been confined to promises to 
 be answerable for^ji^.s^ and ftiture breaches of contract, 
 on the ground that the word " default " was meant 
 merely to supplement the word "debt," and must be so 
 confined in its meaning, though capable of a larger con- 
 struction. In fact, the word " debt " v/ould have been 
 the Icey-ivord in the clause, and would have served as an 
 indicator of the sense in which the word " default " was 
 used by the legislature.* 
 
 Notwithstanding the employment of the word " mis- 
 carriao;e " in the 4th section of the statute of frauds, it 
 seems, at one time, to have been thought that this enact- 
 ment did not aifect promises to be responsible for the 
 future wrongful acts or torts of third persons. Thus, in 
 
 * Browne on St. Frauds, sec. 155, who seems to adopt the idea of Lord 
 EUenborongh, that "debt" and " default" both refer to a liability accru- 
 ing upon a contract, the former to such as is already incurred, the latter 
 to such as may be incurred at a future time.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 63 
 
 Birkmyr v. Darnell/ it seems to have been considered 
 that, if the alleged principal debtor had not been charge- 
 able in contract, but had only been liable to an action 
 of tort, the promise of the defendant to be answerable 
 for him would not have been within the statute. Thus 
 Powell, J., says:^ "The objection that was made was, 
 that if En2:lish did not re-deliver the horse, he was not 
 chargeable in an action upon the promise, but in trover 
 or detinue, which are founded upon the tort^ and are 
 for a matter subsequent to the agreement. But I an- 
 swered that English may be charged on the bailment 
 in detinue on the original bailment, and a detinue is the 
 adequate remedy; and upon the delivery English is 
 liable in detinue, and consequently this promise by the 
 defendant is collateral, and is within the reason and the 
 very words of the statute." Any doubt that may have 
 been caused by these observations of Justice Powell, or 
 by the decision in Read ^'. Nash,^ was certainly entirely 
 removed by the case of Kirkham v. Marter.'* There A. 
 had wrongfully, and without the license of B. ridden 
 his horse, and thereby caused his death. It was held, 
 that a promise by a third person to pay the damage 
 thereby sustained, in consideration that B. would not 
 bring any action against A., was a collateral promise 
 within the statute of frauds, and must be in writing. 
 "This case," said Holroyd, J., in his judgment, "is cer- 
 tainly within the mischief contemplated by the .legisla- 
 ture, and it appears to me to be v/ithin the plain, intel- 
 ligible import of the words of the act of Parliament." 
 So Abbott, C. J., in the same case, said : " The wrong- 
 ful riding the horse of another, without his leave and 
 
 ' 2 Lord Raym. p. 1085, where it is M Wils. 305. 
 
 called Buckmyr v. Darnell. " 2 B. & Aid. G13, 613, 617. 
 
 * In the otlier reports of tlii3 caaa 
 the judgmt'iit of Powell, J., is not given.
 
 64: TUE LAW OF GUARANTIES. 
 
 license, and tliereby causing its death, is clearly an act 
 for wliieli tLe party is responsible in damages, and 
 therefore, in my judgment, falls within the meaning of 
 the word ' miscarriage.' " ^ * 
 
 The meaning of the words " debt, default or miscar- 
 riasre " was also discussed in the followino^ cases : — In 
 the case last cited of Kirkham v. Marter,^ Abbott, C. 
 J., says : " Now the word ' miscarriage ' has not the same 
 meaning as the word ' debt ' or ' default ; ' it seems to 
 me to comprehend that species of wrongful act, for the 
 consequences of which the law would make the party 
 civilly responsible. The w^rongful riding the horse of 
 another without his leave and license, and thereby 
 causing its death, is clearly an act for which thq party 
 is responsible in damages, and therefore, in my judg- 
 ment, falls within the meaning of the word ^ miscarriage.' " 
 In the same case, Holroyd, J., said : " I think the term 
 miscarriage is more properly applicable to a ground of 
 action founded upon a tort than to one founded upon a 
 contract, for, in the latter case, the ground of action is, 
 that the party has not performed what he agreed to per- 
 form, not that he has misconducted himself in some 
 matter for which by law he is liable. And I think that 
 both the words miscarriage and default apply to a 
 promise to answer for another with respect to the non- 
 performance of a duty, though not founded upon a con- 
 tract." 
 
 In Mountstephen v. Lakeman,^ Willes, J., said : 
 
 ' See a'so Tliroop on the Validity of ' L. R t Q. B. 197, 202 ; 8. c. L. R. 
 
 Verbal Agreements, pp. l'J3, 194. 5 Q. B. 613. 
 
 " 2 B. & A. 613, G16, 617 ; see this 
 case, sujira. 
 
 * Tliat the words " debt, default or miscarriage," extend to a liability 
 for costs was held in this countiy, in Turner v. Hubbell, 2 Day, 457.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 65 
 
 " Again, if there was a coutract with reference to a lia- 
 bility not existing at the time, by reason of the debt 
 not being due at the time, that would come under the 
 word default^ and there would be no difficulty about 
 that;' 
 
 On the other hand, it should be mentioned that, in 
 Eastwood V. Kenyon,^ Lord Ellenborough seemed to 
 think there w\as no distinction in meaning between the 
 words " default " and " miscarriao;e." 
 
 These observations and authorities will probably 
 throw sufficient light upon the meaning of the words 
 "debt, default or miscarriage." It remains to notice 
 the words " of another." Like the other words of the 
 statute they are of much importance, and a large body 
 of law has turned upon their meaning. Their opera- 
 tion has, however, now been ascertained by a lono- cur- 
 rent of authority, which has indisputably established 
 that they restrict the 4th section of the statute of frauds 
 to cases where, either at the time the promise is made, 
 there is some person actually liable, in the first instance^ 
 to the promisee, and who remains so liable, notwith- 
 standing such j^romise, or^ where at the time such prom- 
 ise is made, the future primmy liability of a third per- 
 son to the promisee is contemplated, as the very founda- 
 tion of the promise. The same idea is often expressed 
 by the words, " the promise must be collaterair ^ 
 
 It is, however, necessary to observe, that there are 
 many cases where the promise is, undoubtedly, in a 
 certain sense, collateral, and yet to which the 4th section 
 of the statute of frauds has no application. These will 
 
 ' 2 East, 325. promise ? " winch is quite as difficult to 
 
 ' Tlie term collateral does rot, how- answer as the question, " what is a 
 
 ever, occur in the 4th section of the promise to answer for the debt, default 
 
 statute of frauds, and, moreover, it in- or miscarriage of another person, within 
 
 volves the question, " what is a collateral the 4th section of the statute of frauds ? "
 
 66 THE LAW OF GUARANTIES. 
 
 sufficiently appear Avliile we are discussing the rules for 
 tleterminino; what contracts are within the meaninof of 
 the 2cl clause of the 4th section of the statute of frauds. 
 It is often very difficult, with the aid of the broad prin- 
 ciples just alluded to, to assert whether a contract falls 
 within the 2d clause of section 4 of the statute of frauds. 
 In order to bring a promise within the terms of this 
 enactment, it must fall w^ithin certain principles. These 
 principles may be reduced to five separate rules. These 
 rules are as follows : — 
 
 I. At the time the promise is made there must be 
 some person actually liable, in the first instance, to the 
 promisee for the debt, default or miscarriage guaranteed 
 against, or, at all events, the creation of such liability, 
 at some future time, must be contemplated as the found- 
 ation of the contract.'^ 
 
 IJ. The promise must be made to the creditor, ^'. d, to 
 the person to whom another is already or is thereafter 
 to become liable. 
 
 III. There must be an absence of any liability on 
 the part of the promisor (the surety), except such as 
 arises from his express promise. 
 
 IV. The main or immediate object of the agree- 
 ment must be the payment of a debt or the fulfilment 
 of a duty by a third person. 
 
 V. The agieement between the promisor and the 
 creditor, to whom the promise is made, must not amount 
 to a sale by the latter to the former, either of the secu- 
 rity for a del>t or of the debt itself 
 
 * Tileston v. Nettleton, 6 Pick. 5C9 ; Doyle v. White, 26 Me. (13 Shep.) 
 341 ; Arbuckle v. Hawkes, 20 Vt. 5^8; Antonio v. Cli?sey, 3 Rich L. (S.C.) 
 201; Brown v. Cuiliss, 2 Comst. 229; Booker v. Tally, 2 Humph. 308; 
 Rhodes v. Leeds, 3 Stew. & Port. 212.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 67 
 
 It is proposed to treat of these rules iu the order 
 above given. 
 
 Rule I. At the time the promise is made there must 
 he some person actually liable, in the first instance, to the 
 promisee for the debt, default or miscarriage guaranteed 
 against, or, at all events, the creation of such liability, at 
 some future time, must be contemplated as the foundation 
 of the contract. 
 
 The j)resent or future primary liability of another 
 person to the person to whom the promise is made is the 
 very basis or foundation of the contract of guaranty.* 
 This proposition is, in effect, laid down by the judges in 
 the celebrated case of Birkmyr v. Darnell,^ where it was 
 held, that a j)romise is not within tlie statute of frauds, 
 4th section, unless the creditor have a right of action 
 against the principal debtor. The facts of this well- 
 known case [which was argued fully, and upon which 
 all the judges ^vere consulted] are simple enough, as will 
 
 ' 6 Mod. 248 ; 2 Lord Rayra. 10S5 ; case by Lord Hardwicke, iu Touiliiison 
 1 Salk. 27. See observations on this v. Gill, Amb. 330. 
 
 * In order to make a promise to answer for the debt, default or mis- 
 carriage of another collateral, so as to bring it within the section of the 
 statute requiring it to be in writing, the party for whom the promise is 
 made must be liable to the party to whom it is made. Boykin v. Dohlonde, 
 37 Ala. 577; Downey v. Hurchman, 35 Ind. 453. If the credit is given to 
 the promissor alone, of course the promise need not be in writing.- See 
 Smiths. Mayo, 1 Allen, 160; Sanborn ». Morrill, 41 Me. 467; Hodges «. 
 Hall, 29 Vt. 309; Eddy v. Roberts, 17 111. 505; Sinclair v. Bradley, 53 Mo. 
 180 ; Aldrich v. Jewell, 13 Vt. 135 ; Cahill v. Bigelow, 18 Pick. 319 ; Allen v. 
 Scarf, 1 Hilt. 209 ; Cimolly v. Kettlewell, 1 Gill (Mel.), 260 ; Chase v. Day, 17 
 Johns 114; Crosby «. Jeroloma:n, 37 Ind. 364; Hearing ». Dittman, 8 Phila. 
 307; Davis v. Banks, 45 Ga. 131; Wilson v. Beavans, 58 III. 333; Ca- 
 rothers v. Connoly, 1 Mon. T. 433 ; Lessee v. Williams, 6 Lans. 338 ; Wyman 
 «. Goodrich, 36 Wis. 31 ; Putney v. Farnham, 37 Wis. 187; Howland ». 
 Aitch, 38 Cal. 133; Jones v. Greenland, 6 Coldw. 343; Britton v. Angier, 
 48 N. H. 430 ; Brown v. Brown, 47 Mo. 130 ; Barker v. Bradley, 43 N. Y. 
 316 ; Harris v. Young, 40 Ga. 65 ; Jeflferson Co. v. Slagle, 66 Penn. St. 202.
 
 6S THE LAW or guaranties. 
 
 be seen from the following report, taken from 1 SalkelcT,. 
 p. 27: "Declaration — That in consideration the plaintiff 
 would deliver his gelding to A., the defendant promised 
 that A. should redeliver him safe, and evidence was 
 given that the defendant undertook that A. should re- 
 deliver him safe ; and this was held a collateral 
 undertaking for another, for where the undertaking- 
 comes in aid only to procure a credit to the party, in 
 that case there is a remedy against both, and both are 
 answerable according to their distinct engagements ; 
 but where the whole credit is given to the undertaker, 
 so that the other party is but as his servant, and tliere 
 is no remedy against liiin^ this is not a collateral under- 
 taking. But it is otherwise in the principal case, for 
 the plaintiif may maintain detinue upon the bailment 
 against the original hirer, as w^ell as assiim])sit upon the 
 promise against this defendant. Et jper cur. : If two 
 come to a shop and one buys, and the other, to gain 
 him credit, promises the seller, if he does not pay you, I 
 icill, this is a collateral undertaking, and void without 
 writing by the statute of frauds. But if he says. Let 
 him have tlie goods ; I will he your paymaster, or, I will 
 see yQup>cdd, this is an undertaking as for himself, and 
 he shall be intended to be the very buyer, and the other 
 to act but as his servant." 
 
 In the second volume of Lord Kaymond's Reports^ 
 p. 1087, the following report of the judgment of Holt, 
 C. J., in Birkmyr v. Darnell, is given : "The last day of 
 the term the chief justice delivered the opinion of the 
 court. He said, that the question had l)een proposed 
 at the meeting of judges, and that there had been great 
 variety of opinions betw^een them, because the horse 
 was lent wholly upon the credit of the defendant, but
 
 OPERATION OF THE STATUTE OF FKAUD3, ETC. G9 
 
 that the judges of tliis court were all of opinion that 
 the case was within the statute. The objection that 
 was made was, that if English did not redeliver the 
 horse he was not chargeable in an action upon the prom- 
 ise, but in trover or detinue, which are founded upon 
 the tort^ and. are for a matter sul^secpient to the agree- 
 ment.^ But I answered, that Englislf may be charged 
 on the bailment in detinue on the original delivery, and 
 a detinue is the adequatereaiedy, and upon the delivery 
 English is liable in detinue, and consequently this 
 promise by the defendant is collateral, and is within the 
 reason and the very words of the statute, and is as much 
 so as if, where a man was indebted, J. S., in considera- 
 tion that the debtee would forbear the man, should 
 promise to pay him the debt, such a promise is void un- 
 less it be in writing. Suppose a man comes with 
 another to a shop to buy, and the shopkeeper should say, 
 ' I will not sell him the goods unless you shall under- 
 take he shall pay me for them,' such a promise is within 
 the statute ; otherwise if a man had been to pay for 
 the goods originally. So, here, detinue lies against 
 English, the principal; and the plaintiff having this 
 remedy against English, the princij^al, cannot have an 
 action ao-ainst the defendant, the undertaker, unless 
 there had been a note in writing." 
 
 In the note to Birkmyr v. Darnell,- it is stated that, 
 ~^' from all the authorities it appears, conformably to the 
 doctrine in this case, that if the person for whose use 
 the goods, cfee. are furnished is liable at all, any other 
 person's promise is void, except in writing."^ 
 
 On this proposition the late Mr. Justice Willes 
 
 ' See remarks on t!iis part of the ^ See also Comyn'3 Dig-est, Action on 
 
 judgment, ante, p. 63. Assumpsit (F, 3), 5th ed. Vol. I, p. 319, 
 
 '^ 1 Salk. 27, Evans' edition. note (/).
 
 70 THE LAW OF GUARANTIES. 
 
 makes the following remarks in the recent important 
 case of Moimtstephen v. Lakeman : ^ " The leading case 
 upon the application of the statute of frauds has gen- 
 erally been considered to be Birkmyr v. Darnell, and 
 in the note to Mr. Evans' edition of Salkeld's Keports 
 it is stated, that ' from all the authorities it appears, 
 conformably to the doctrine in this case, that if the per- 
 son for whose use the goods are furnished is liable at 
 all, any other person's promise is void, except in writing.' 
 I think that may very well be modified; or if his lia- 
 bility is made the foundation of a contract between the 
 plaintiff and the defendant and that liability fails, the 
 promise is void ; so as to include the case which I put 
 to Mr. Charles,^ of persons wrongly supposing that a 
 third person was liable, and entering into a contract on 
 that supposition. If, in such a case, it turned out that 
 the third person was not liable at all, the contract would 
 fail, because there would be a failure of that which the 
 parties intentionally made the foundation of the con- 
 tract. The lex contrachis itself would make an end of 
 the claim, and not the apj)lication of the statute of 
 frauds, whether the contract was in writing or not, and 
 whether signed or not. The law of contract gives you 
 as foundation that a person w^as taken to be liable, and 
 that the suretyship was a suretyship in respect of that 
 liability. Take away the foundation of the principal 
 contract, the contract of suretyship would fail. Again, 
 if there was a contract with reference to a liability not 
 existing at the time, by reason of the debt not being 
 due at the time, but being payable in futuro, that 
 would come under the word ' default,' and there would 
 be no difficulty about that. So, if there was a contract,, 
 
 '.L. R. 7 Q. B. 19V ; s. c. L. R. 5 Q. ' The counsel for the plaintiff. 
 
 B. 613.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 71 
 
 ' if A. B. will employ you to do work, I promise to be- 
 come surety for him that he shall pay you ; ' iu that 
 case the promise would clearly come within the statute, 
 because, although there was no liability existing at the 
 time when the promise was made, there was a liability 
 contemplated as the foundation for the promise of the 
 defendant. It was a contract of suretyship in respect 
 of a liability to be created; but if the liability were 
 not created, there again the lex contractus would pre- 
 vail. There would be the condition precedent to the 
 arising of any liability as surety, that there should be 
 a principal debtor established. In all these cases, no 
 doubt, one agrees thoroughly with what was laid down 
 in the Court of Queen's Bench, because you have the 
 case of principal debt contemplated by the parties and 
 suretyship founded in respect of that principal debt. 
 But to bring the case tvithin that rule you must first of 
 all show that the parties did intend that there should he a 
 principal debtor y 
 
 In accordance with the principles which have thus 
 been laid down, it is now a well-established rule, that, 
 where a liability on the part of a third person exists or 
 is contemplated^ a promise falls within the statute ; but 
 that where no liability on the part of a third person ex- 
 ists or is contemplated^ the promise does not fall within 
 the statute.* 
 
 There are numerous reported cases in which it has 
 been held that a liability did exist on the part of a 
 third person, and that, therefore, the rule first enuncia- 
 ted caused the statute to apply. 
 
 * Hearing v. Dittman, 8 Phila. 307. Compare AUwine v. Garberick, Id. 
 637 ; Wilson v. Beavans, 58 111. 233 ; Carothers v. Connolly, 1 Mon. T. 433 ; 
 Lessees. Williams, 6 Lans. 328; McCreary v. Van Hook, 35 Tex. 631; 
 Packer v. Benton, 35 Conn. 343.
 
 i2 THE LAW OF GUARANTIES. 
 
 Tbus, for instance, in Coleman v. Eyles,^ one Allen, 
 the landlord of certain premises, in respect of which 
 rent was due, gave a warrant to a man named Gray, to 
 distrain upon the tenant. The defendant was a cred- 
 itor of Allen, and Le paid the broker who valued the 
 goods. He also put the plaintiff on the premises to 
 keep possession of the goods, and promised to pay him 
 his charges, and also to repay him certain sums to be 
 advanced to one Emmett, who ^vas also in possession of 
 the goods distrained. An action was Ijrought against 
 the defendant for payment of these sums, and it was 
 contended he was liable to pay them. But Lord Ellen- 
 borough was of oj)inion, that, since there was a princi- 
 pal, namely, the landlord, who was responsible for the 
 necessary expenses of the distress, the case was within 
 the statute of frauds, and that the debt was to be con- 
 sidered as the debt of another ; and, consequently, that 
 the defendant could not be liable without a note in 
 writino;. 
 
 The decision in Tomlinson v. Gell ^ turned upon the 
 same j^rinciple. There A. had commenced a chancery 
 suit against B. T. acted as A.'s attorney in the suit, 
 and 30/. had become due to him for his costs in the 
 suit, when lie and B. agreed, with the consent of A., 
 that the siiit should be discontinued, and that B. should 
 pay T. the costs 'which were due. B., in consideration 
 of this promise, and that A. had consented to discon- 
 tinue and plaintiff (T.) to accept his costs from B., 
 promised plaintiff (T.) to pay him such costs. It was 
 held, that such promise was a promise to pay the debt 
 of another, within the 4th section of the statute of 
 frauds. Now, in this case A. remained liable to his at- 
 
 ^ 2 Stark. 62. "4 Ad. & E. 564.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 73 
 
 toi'iiey T., notwithstanding the promise of B. The 
 transaction was neither more nor less than the defendant 
 undertaking to pay the bill of costs which the plaintiff 
 in chancery owed the plaintiff in this suit. 
 
 So also, in Brunton v. Dallas/ it was held, that a 
 promise to pay a debt to be transferred from promiser's 
 account to that of a third party, his agent, is a valid 
 guaranty, and that parol evidence was admissible to 
 identify the debt. The report of this case is exceedingly 
 brief. It appeared that B,, acting as agent for the de- 
 fendant, ordered goods for him from the plaintiff. It 
 was subsequently agreed that these goods should be 
 supplied to B., and that the order which had been en- 
 tered by plaintiff to the defendant, should be accord- 
 ingly entered in the plaintift^'s books to B. instead. In 
 consideration of this arrangement the plaintiff required 
 a security, and the defendant wrote to him in these 
 terms, " With regard to the transferring of B.'s order, it 
 shall be paid." Now, such a promise would clearly 
 come within the 4th section of the statute of frauds, 
 because it would only amount to a promise to pay for 
 the goods supplied to B., if B. did not himself pay for 
 them. 
 
 Where a person promises that the creditors of a 
 third person shall be paid the amount of a composition 
 in lieu of their original debts, the application of the 4th 
 section of the statute of frauds to such a promise de- 
 pends upon whether or not the third person remains 
 liable to the creditors notwithstanding sucli promise. If 
 the third person continues liable, then the promise is 
 within the statute, otherwise it is not within it."^ 
 
 ' 1 F. <fe F. 450. 
 
 * Shepard I'. Shears, 35 Tes. 76 3; Packer v. Benton, 35 Conn. 343; 
 White i\ Solomonsky, 30 Md. 533.
 
 74 TUE LAW OF GUARANTIES. 
 
 In Emmet v. Dewburst,^ where W. D., by indenture, 
 agreed to guarantee a certain composition to all the 
 creditors of J. D., who should before a fixed day execute 
 a release of their debts, it was held, that this was an 
 agreement required by the 4th section of the statute of 
 frauds to be in writing, and that its terms could not, 
 therefore, be varied by parol. Now, in this case it ap- 
 pears that J. D. continued liable for the amount of the 
 composition, notwithstanding the promise of W. D., for 
 each creditor, on executing the deed of release, received, 
 in pursuance of the agreement, the joi^it notes of J. D. 
 and W. D., for the proportionate part of the debt due 
 to the creditor. Vice-Chancellor Knight Bruce, in his 
 judgment in this case, says: "It is a special promise to 
 answer for the debt of another person. It is not a 
 promise, upon irood consideration, to take the debt ex- 
 clusively upon himself. It pi'ofesses in terms to be a 
 case of guarantee. The composition notes were to be 
 the joint notes of J. D., the principal debtor, and of the 
 defendant W. D., as his guaranty or surety. The 
 agreement is clearly within the 4th section of the 
 statute of frauds, and must be in writing. Any altera- 
 tion of the agreement must also be in writing." ^ 
 
 In Anstey v. Harden,^ A. being insolvent, a verbal 
 agreement was entered into between several of his cred- 
 itors and B., whereby B. agreed to pay the creditors 
 lOs. in the pound in satisfaction of their debts, which 
 
 ' 3 Mac. & G. 587. ' 1 K R. 124. 
 
 * Hodgkins v. Bond, 1 N. H. 284 ; Jackson ®. Titus, 2 Johns. 433 ; 
 Browne Stat. Frauds, sec. 4096, et seq.; 1 Greenl. Ev. sec. 34; 1 Phillips 
 Ev. p. 563 n. 987. The contract under the statute must be wholly in writ- 
 ing. Blood ». Goodrich, 9 Wend. 68; Rodgers v. Atkinson, 1 Kelley, 12; 
 Bryan v. Hunt, 4 Sneetl (Tenn.) 54:j ; Dana v. Hancock, 30 Yt. 01 G; Whit- 
 tier ij. Dana, 10 Allen (Mass.) 326.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 75 
 
 they agreed to accept, and to assign their debts to B. 
 It was held, that this agreement was not within the 4th 
 section of the statute of fi-aiids. Now, there can be 
 no doubt that this decision is perfectly correct, for the 
 effect of the transaction in question was to discharge A. 
 Consequently, the promise of B. was an original promise.^ 
 The case of Chater v. Becket,'^ if it was rightfully 
 decided, also belono-s to the class of cases now under 
 review. In that case, in consideration that the plaintiff 
 would stay all proceedings against one Harris, and would 
 accept certain bills of exchange, drawn or accepted by 
 the defendant, for a certain part, namely, 10s. 3c/., the 
 defendant undertook and promised to give the plaintiff'" 
 such bills for the same, and to pay all the expenses 
 which the plaintiff had been put to, in and about a 
 certain intended commission of bankruptcy. It wa& 
 held, that the promise of the defendant to pay 10s. in 
 the pound of Harris's debt was within the statute of 
 frauds. * Now, with reference to this case, it is proper 
 to remark that the question, whether Harris remained 
 liable notwithstanding the promise of the defendant, 
 does not seem to have been brought before the court, 
 and alto2;ether the decision in this case is far from satis- 
 factory. But it is presumed, that if this case decides 
 that though Harris, the principal debtor, was released 
 from liability by the promise of the defendant, such prom- 
 ise was within the 4th section of the statute of frauds, 
 it is no lono^er law. 
 
 ' See also pout, where another reason * 7 T. R. 201. Vide ante, p. 54. 
 
 is given for excluding this case from 
 the operation of the statute of frauds. 
 
 * Sliupe V. Galbraith, 32 Penn. St. 10; McCann v. Lewis, 9 Cal. 246; 
 Kars V. Young, 32 Penn. St. 60 ; Vanslyck r. Pulver, Hill & D. Supp. 47 ; 
 Farley v. Cleveland, 4 Cow. 432.
 
 76 THE LAW OF GUARANTIES. 
 
 Anotlier example of the oj^eration of the rule that if 
 n third person is liable the statute applies, is afforded 
 by the case of re Willis.^ In that case A. <fe Co. bought 
 certain wools of B. tt Co., to be paid for by the buyer's 
 acceptance at eight months. Before the sale was com- 
 pleted, B. <fe Co., requiring some security, in considera- 
 tion of £\ per cent., obtained the following instrument 
 from C, signed by him : " Gentlemen, in consideration 
 of £>\ per cent., I hereby guarantee the due and correct 
 payment of half the amount of 136 bales of wool, sold 
 to Messrs. A. <fe Co., as per contract," <fec. It was held 
 that the instrument was a guaranty. 
 
 On the other hand, there are very many cases in 
 which effect has been given to the other branch of this 
 part of the rule, and it has been held, that, it appearing, 
 under the circumstances, that there was no third person 
 liable — in other words, that there was no principal 
 debtor — the statute of frauds had no ap^^lication what- 
 ever. Thus, for example, in the case of Tomlinson v. 
 ■Gill,'^ it w\as held, that a promise by defendant, that, if 
 the widow of the intestate would permit him to be 
 joined with her in the letters of administration, he would 
 make good any deficiency of assets to pay debts, was not 
 within the 4th section of the statute of frauds. Now^, it 
 is submitted, that, under no circumstances, could such a 
 promise be within the 4th section of the statute of frauds. 
 It clearly cannot be maintained for a moment that A.'s 
 widow, to whom the promise in question was made, was 
 a creditor^ and this circumstance of itself, as will 2>res- 
 ently be seen,^ is sufficient to exempt the promise from 
 the operation of the statute. But, it may perhaps be 
 said, that A.'s widow occupied the position o^ principal 
 
 ' 4 Exch. 530. => See post, " Rule 11. 
 
 ^ Arab. 330.
 
 OPERATION OF TPIE STATUTE OF FRAUDS, ETC. 'i 7 
 
 dehtor. Now, even assuming this to be the case, the 
 statute of frauds would have no application, since it 
 does not operate upon promises made to principal debt- 
 ors.^ It is, however, submitted, that, inasmuch as at the 
 time the promise was made, x\.'s widow had not taken 
 out letters of administration, she was not even a princi- 
 pal dehtor. For though an executor may act before 
 probate, '' with respect to an administrator, the general 
 rule is, that a party entitled to administration can do 
 nothino' as administrator before letters of administration 
 are granted to him, inasmuch as he derives his authority,, 
 not like an executor from the will, but entirely from the 
 appointment of the court." ^ If, therefore, A.'s widow 
 did not, in fact, occupy the position of principal debtor, 
 another reason why the promise in question is not within 
 the statute of frauds is, because the promise of the de- 
 fendant is not to answer for the debt of another, but to 
 answer for the sufficiency of the assets of an intestate^, 
 or, in other words, it is a promise to answer for the 
 debts of a deceased person. "* 
 
 It is right, however, to mention that the Lord Chan- 
 cellor Hardwicke, in excluding this case from the opera- 
 tion of the statute of frauds, grounded his decision on 
 the' alleged distinction " between a promise to pay the 
 original debt, and on the foot of the original contract, 
 and where it is on a new consideration." ^ 
 
 ' See post, Ru'e II. ' See tliis distinction commented 
 
 * Williams' Law of Executors, Vol. \v^on, post, Rule III. 
 
 I, 6th ed. p. 389 ; Wankford v. Wank- 
 
 ford, 1 Salk. 301, by Powys, J. 
 
 * An administrator being an officer of the court, the statute affords him 
 no protection against the enforcement of liis verbal promise to answer 
 damages out of his own estate, made after the testator's death, but before 
 his own appointment. Browne on Stat. Frauds, 144. See discussion of 
 the case of Tomliuson r. Gill, in section 311.
 
 78 THE LAW OF GUARANTIES. 
 
 In Lexington v. Clarke/ the promise was somewhat 
 similar to that in Tomlinson v. Gill. In consideration 
 of the plaintitt* allowing the widow of A. B. to retain 
 possession of certain premises which the plaintiff had 
 demised to A. B., the widow of A. B. (who was also 
 his executrix) promised to pay to the plaintiff the arrears 
 of rent due to the plaintiff' from A. B. at the time of his 
 death, and also £260 more. It was held, that the prom- 
 ise to pay the arrears of rent due from A. B., deceased, 
 was w^ithin the 4th section. For the reasons above stated 
 it is submitted that this decision is erroneous. Under 
 the following circumstances, too, it w^as on the same 
 principle held, that no note in writing was required. 
 An action was brought against the sheriff for taking the 
 plaintiff's goods on Sif. fa. against a third person. The 
 sheriff' failed on the trial, and the execution creditor 
 then employed an attorney to ap])ly for a new trial, and 
 (on obtaining a rule for a new trial) to act as attorney 
 on the second trial. It was held, that the attorney 
 could recover his bill against the execution creditor, 
 althouah there was no memorandum in writino^. For 
 the execution creditor is a persooi p7nmarily liable to liim. 
 But if the attorney had in the first instance been em- 
 j)loyed by the sheriff it would be otherwise.^ 
 
 The case of Iloulditch v. Milne '^ a])pears to be re- 
 garded by some text writers as being another example 
 of the principle now under consideration. There the 
 plaintiff' had a lieu on certain carriages belonging to A., 
 for the costs of repairs which he had done to them. The 
 plaintiff' parted with such lien and gave up the carriages, 
 on the defendant's promising to j)ay what Avas due for 
 such repairs from the person in whose name the bill for 
 
 ' 2 Ventr. 223. ^ 3 Esp. 86. See also Castling v. 
 
 « Noel V. Hart, 8 C. *fe P. 230. Aubert, 2 East, 32.5.
 
 OPERATION" OF THE STATUTE OF FRAUDS, ETC. 79 
 
 such repairs had been made out. After the promise of 
 the defendant, the plaintiff appears to have made out 
 the bill in the name of the defendant. It was held, that 
 the 4th section of the statute of frauds did not apply. 
 This case, which we shall have occasion to notice at 
 greater length in another part of this book, is very badly 
 reported. It is only cited in this place, because in 1 
 Wms. Saund. 233, it is stated, that the reason the 
 statute did not apply was, because credit was given to 
 the defendant and not to the owner of the carriages, 
 who was not therefore liable to the plaintiff at all. 
 There was, in fact, no principal debtor. 
 
 There is another class of cases which is sometimes 
 considered referable to the principle that the statute 
 only applies where there is a principal debtor. These 
 are cases in which a third person makes a promise to a 
 landlord, in consideration of his desisting from destrain- 
 ing for rent in arrear. In such cases the promise need 
 not be in writino;. * Thus, in the case of Edwards !>. 
 Kelly,^ after goods had been actually distrained for rent, 
 
 ' 6 M. (fe S. 204. 
 
 * The argument in Edwards v. Kelly was that as no consideration 
 moved to the defendant, and as the defendant had no personal interest in 
 the transaction, the earlier case of Williams v. Leper did not apply, but 
 the court ruled that it did apply on other grounds. See generally as to 
 cases where a promise is made in consideration of the relinquishment of a 
 lien. Curtis v. Brown, 5 Cush. 491, 492; King v. Despard, 5 Wend. 277; 
 Nelson v. Boynton, 3 Met. 396 ; Corkins v. Collins, 16 Mich. 478 ; Arnold v. 
 Stedman, 45 Penu. 186; Alger®. Scoville, 1 Gray (Mass.), 398; Smith v. 
 Sayward, 18 Green, 504 ; Boyc.e v. Owen, 2 McCord, 208 ; Scott v. Thomas, 1 
 Scam. 58 ; Stern v. Drinker, 2 E. D. Smith, 401 ; Vanslyck v. Pulver, Hill & 
 Denio Supp. 47 ; Fay «. Bell, Id. 251 ; Mallory v. Gillett, 23 Barb. 610 ; 
 Spooner». Dunn, 7Ind. 81 ; Lampson «. Hobart, 28 Vt. 697; Cross v. Rich- 
 ardson, 30 Vt. 641 ; Shook v. Van Mater, 22 Wis. 532 ; Fish v. Thomas, 5 Gray 
 (Mass.), 45 ; Stewart v. Campbell, 58 Me. 439 ; Luark v. Malone, 34 Ind. 444 ; 
 Ames V. Foster, 106 Mass. 400.
 
 so THE LAW OF GUARANTIES. 
 
 the plaintiff consented to give them up to one of the cle> 
 fendants, upon all the defendants giving a joint under- 
 taking to pay to the plaintiff all such rent as should 
 appear to be due from the tenant. It was lield, that 
 this aoTeement was iKjt within the statute of frauds. 
 Bayley, J-, in his judgment in this case, said, that after 
 the plaintiff had distrained, he held in his own hauds 
 the remedy for recovering the rent, and the tenant ivas at 
 that time no longer indehted, for so long as the landlord 
 held the goods under distress, the debt due from the 
 tenant was suHpended. One reason,^ therefore, for this 
 decision was that there was no principal debtor. 
 
 The earlier case of Williams v. Leper,^ is very 
 similar to Edwards v. Kelly. The circumstances, 
 indeed, are exactly similar, except, that, in Williams 
 V. Leper, when the promise of the defendant was 
 made, the goods had not been actually distrained. 
 It was held, that the 4th section of the statute of 
 frauds did not apply. The following judgment was 
 delivered by the majority of the judges who decided 
 this case : — " This is not a promise to pay the debt 
 of another; the goods were debtor, and the defend- 
 ant was in the nature of a bailiff for the landlord, 
 and, if the defendant had sold the goods and re- 
 ceived money for them, an action for money had and 
 received for the plaintiff's use would have laid." 
 Mr. Justice Aston, however, thought that if the 
 goods had not sold for so much money as the plaint- 
 iff's rent, he would be liable for no more than they 
 sold for.'^ 
 
 * Videpost, Rule V, for another reason, that there is another reason why the 
 
 * 2 Wils. 308. This case is also cited 4th section of the statute of frauds 
 under Rule III, where it will be seen does not apply to it. See also Rule V. 
 
 * Page 79, note, *.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 81 
 
 Lord Tentei'deu, C. J., in Thomas v. Williams/ 
 said: "In Williams v. Leper there was no actual 
 distress, but there was a power of immediate dis- 
 tress, and an intention to enforce it; and I think 
 the judges must be understood to have considered 
 that power as equivalent to an actual distress. It is 
 not necessary now to decide whether it was rightly 
 so considered." In Bampton v. Paulin,'^ too, where 
 Williams v. Leper is followed, the promise was made 
 before the goods had been distrained. It would 
 seem, therefore, that, whether the promise is made 
 hefore or after the distress, the statute does not ap- 
 ply, because, at the time the promise is made, there 
 is no principal debtor other indeed than the goods 
 themselves. 
 
 Love's Case,'^ it is presumed, rests upon the same 
 principle as the cases just cited. There the sheriff 
 had taken goods in execution upon a ft. fa.^ and a 
 promise to the officer, by a third party, to pay him 
 the debt, in consideration that he would restore 
 them, was held to be an original promise not within 
 the 4th section of the statute of frauds.* 
 
 The case of Walker v. Hill* may be cited as an- 
 other instance of the rule that there must be a prin- 
 cipal debtor. In that case, one Hulls, who was a 
 agent for the plaintiffs, being desirous of retiring, 
 the defendant applied for the agency. Hulls was 
 indebted to the plaintiffs, and, on the other hand, 
 claimed a commission for introducing customers. 
 
 MO B. <fe C. 664, 670. See also re- ' Salk. 23. This case is also cited, 
 
 marks of Bayley, J., ia Edwards v. infra, under Rule II, and again under 
 Kelley, supra. Rule V. 
 
 ' 4 Ring. 264. ^ 6 H. <fe N. 419. 
 
 * Page 79, note *.
 
 82 THE LAW OF GUARANTIES. 
 
 It was agreed that the plaintiffs shouhl allow Hulls 
 52/. on that account, and that the defendant, on 
 taking;: the agency, should allow the plaintiffs to re- 
 tain six months' salary, which amounted to 52/. In 
 an action by the plaintiffs for money received by the 
 defendant as such agent, to which the defendant 
 pleaded a set-off for six months' salary, it was held, 
 that this was not an undertaking to answer for the 
 debt of another, within the 4th section of the stat- 
 ute of frauds. The ground on which it was insisted 
 that the statute of frauds applied was thus stated 
 by the defendant's counsel:^ — He said, "The agree- 
 ment is one which is required, by the statute of frauds, 
 to be in writing. The plaintiff says, ' If you will enter 
 our service, and allow us to retain twenty-six weeks' 
 salary we will give Hulls 52/. whereby so much will 
 be wiped oft' the debt due from him to us.' The de- 
 fendant, by assenting to that, undertakes to answer for 
 so much of the debt of Hulls. It is an agreement to 
 give the value of service for a certain time, to be ap]3lied 
 in reduction of a debt due from a tliird ])er%oii to the 
 plaintiffs." Pollock, C. B., in giving judgment in this 
 case, said : " If a person agrees, that whatever shall 
 hereafter become due to him shall be disposed of in a 
 particular way, such an agreement need not be in writ- 
 ing." Stripped of immaterial details and placed upon 
 a broad ground, the transaction seems simply to have 
 amounted to a purchase by the defendant of the agency 
 for the plaintift' at a certain price, the plaintiff" being 
 guided in fixing the price by a wish to make good the 
 loss he had sustained by his former agent. In this view 
 of the case the old agent had really nothing to do with 
 
 ' Mr. Hopwood.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 83 
 
 the contract (as sucli),an(l there was therefore no princi- 
 pal debtor. * 
 
 A further example of the rule, that the statute of 
 frauds does not apply unless tliere be a principal debtor, 
 is furnished by a line of cases which decide that a 
 promise made to a third person's creditors to j^ay the 
 debt of that third person oiit of tlie 'proceeds of a sale of 
 that third persoii's goods need not be in writing, and is 
 not within the 4th section of the statute of frauds.* 
 Such a promise is not a promise to answer for the debt 
 of another person, but a promise to answer for the suf 
 iiciency of a certain fund, or for the due application of 
 such fund, as the case may be. f In such a case, you 
 undertake or promise, not for another^ but for yourself. 
 You undertake, not that another shall pay out gf the 
 proceeds of the sale, but that you yourself will do so. 
 Consequently, there is no one liable, or to become liable, 
 in the first instance, to do that which you promise or 
 undertake to do, and, thereupon, the operation of the 
 4th section of the statute of frauds in excluded by the 
 rule now under consideration. If it is a promise to an- 
 swer only for the application of a certain fund to the 
 payment of the debt due to the promisee from the third 
 person, it seems that the party making such a promise 
 is not liable for a greater sum than the goods may real- 
 
 * See Lippincott v. Ashfielcl, 4 Sandf. 611; McKeenan ®. Tmstle, 33 
 Maine, (3 Eedf.) 368; Stilwell v. Otis, 3 Hilt. 148. 
 
 t Here the debtor's funds are relied upon for payment, and the right to 
 sue for the breach is not at all affected by the statute of frauds. McLaren 
 V. Hutchinson, 22 Cal. 187; Wyman v. Smith, 2 Sandf. 331 ; Hitchcock v. 
 Lukens, 8 Porter, 333; Clymer v. DeYoung, .54 Penn. St. 118; Consociated, 
 &c. Society v. Staples, 23 Conn. 544; Stouldt v. Hine, 45 Penn. St. 30; 
 Loorais V. Newhall, 15 Pick, 159; Todd v. Tobey, 29 Me. (16 Shep.) 219; 
 Corbin i\ McChesney, 26 III. 231; Lucas v. Payne, 7 Cal. 92; Nelson v. 
 Hardy, 7 Ind. 364.
 
 S4 THE LAW OF GUARANTIES. 
 
 ize Ijy the sale.^ In "Williams v. Leper,^ where the 
 promise of the defendant' was to pay rent due to tlie 
 plaintiff from a tliird party out of the produce of the 
 sale of that third j^arty's goods ; in Edwards v. Kelly,^ 
 where tlie promise w^as almost the same as in Williams 
 t'. Leper ; * in Bampton v. Paulin,^ where the promise 
 was " to pay rent out of the proceeds of sale;" and in 
 Stephens v. Pell,*' where tlie promise was to pay the sum 
 due for rent " out of the produce of the effects," the 
 statute of frauds, section 4, was held to liave no appli- 
 cation. 
 
 There is also a class of cases, greatly resembling 
 those just cited, w^liich proceed on the same principle, 
 and therefore further exemplify tlie present rule. These 
 are cases in w^liich, in consideration of goods supplied 
 on credit to a third person, the defendant has promised 
 to pay for such goods out of certain moneys about to 
 be received by him (the defendant) for such third per- 
 son. Now, in these cases, the promise is really nothing 
 more nor less than a j^romise to pay the third jyarty's 
 debt with the third party' s money, ^ for, when the promise 
 is made, it is known whether the money to be received 
 will be sufficient in amount to cover the debt. The 
 person giving such a promise or undertaking does not 
 therefore undertake any resj^onsibility whatever, and 
 certainly does not stand in need of the pi'otection af- 
 forded by the statute of frauds. His engagement, like 
 that of a person who undertakes to pay another's debt 
 out of the produce of the sale of such other's goods, is 
 
 ' Stephens «;. Pell, 2 C. & M. VIO; * Supra. 
 
 Jjut see Williams v. Leper, 2 Wils. 308. ' 4 Bing. 264. 
 
 » Ubi supra. " 2 C. & M. 710. 
 3 6 M. <fe S. 204, 208. 
 
 * Page 83, note t.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 85 
 
 not that the principal debtor shall pay, or, in default,, 
 that he himself will do so, but that he himself will pay 
 out of moneys coming to him for such other person. In 
 such cases there is, in fact, no third ^person answerahle^ 
 in the first instance^ for the debt or defaidt guaranteed 
 against^ for it is the promiser who undertakes that he 
 himself will apply, in a certain way, a third party's 
 fund over which he (the promiser) has or is to have 
 control." He does not undertake that another shall do 
 this. In such cases, therefore, the event on which the 
 liability of the promiser is to depend is not the default 
 of another, but the receipt by the promiser of a certain 
 sum of money. The promiser's undertaking to pay out 
 of a certain fund creates a privity of contract between 
 himself and the third person's creditor, and enables the 
 latter to maintain againsi: the former an action for money 
 had and received, and, where the appropriation in ques- 
 tion is made with the debtor's consent, renders such ap- 
 propriation irrevocable as far as the debtor is concerned. 
 For the above reasons, it is submitted that the 
 statute of frauds has no application to a promise to 
 pay another's debt out of such other's funds, when they 
 are received by the promiser in consideration of goods 
 to be supplied to such other person on credit. How- 
 ever, on an examination of the authorities, it will be 
 found that, in the tico cases in which this view was 
 adopted, the goods were supplied on the sole credit of 
 the prt)miser, and therefore, for this reason alone, the 
 statute could not apply, whilst, in the one case in which 
 this view was not adapted, credit loas given to a third 
 party. Thus, in Andrews v. Smith,^ one Hill was em- 
 ployed to do certain work, and the defendant was ap- 
 pointed surveyor over him, and to receive moneys due 
 
 ' 2 Cr. M. <fe R. 627.
 
 86 THE LAW OF GUARANTIES. 
 
 to Hill for sucli work. ' The defendant ])romised the 
 plaintiff, in consideration that lie would deliver to Hill 
 materials, as lie might require, to enal)le him to do the 
 work in question, that he (defendant) would pay him 
 for them out of suck moneys received by him (the de- 
 fendant) as shoukl become due to Hill for the work, if 
 Hill would give him an order for that i^urpose. The 
 promise of the defendant was held to be original, and 
 therefore not within the statute of frauds. Now, in 
 this case, it appeared that there was nothing on the 
 face of the declaration to imply a contract l)y the plaint- 
 iff with Hill, i. e., tkere was no principal debtor. Lord 
 Abinger, C. B., however, while admitting that this was 
 an answer to the o])jection raised by the defendant, 
 went on to say : " But further, if the defendant con- 
 tracted, not to pay Hill's debt out of his own funds, 
 but only faithfully to apply Hill's funds for that pur- 
 pose when they shoukl come to his hands, that contract 
 would not he within the operation of the statute." 
 Parke, B., too, said : " There is nothing on the face of 
 the declaration to imply a contract by the plaintiff with 
 Hill. If that be so, it is clear the ' defendant's contract 
 was an original, not a collateral one, and so not within 
 the statute. But, even if that were otherwise, this is 
 nothing more than a prospective assignment of funds 
 which were to come to the defendant's hands for Hill, 
 and an attornment, as it were, by the defendant to 
 that assii>:nment ; and the authorities show that in such 
 case the contract is not within the statute. On this 
 ground, also, the plaintiff is entitled to the judgment 
 of the court.''* In Dixon v. Hatfield,^ W. undertook to 
 
 ' 2 Bin^. 43?; 10 Moore, 24. 
 
 * Page 83, note t.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 8? 
 
 complete the carpenter's work in the defendant's house, 
 and find all materials. W., being delayed for want of 
 credit or funds to procure timber, it was supplied by 
 M. on the defendant's signing the following undertak- 
 ing: "I agree to pay M. for timber to house in A. C. 
 out of tlie money that I have to pay W., provided W.'s 
 house is completed." It was held, that this was not a 
 guaranty to pay if W. should fail, Init a direct under- 
 taking to pay when the work should be completed. 
 Now here, again, it does not appear that there was any 
 contract between M. and W., and Mr. Justice Park, in 
 his judgment, seems to think that, had this been the 
 case, the defendant's promise would have amounted to 
 a guaranty. On the other hand, Mr. Justice Gaselee 
 seems to think that, even if credit had been given by 
 M. to W.,.the defendant would have been liable, as he 
 undertook to pay for the timber on the completion of 
 the work. 
 
 In the case of Morley v. Boothby,^ the defendants 
 23romised the plaintifts that, if they would deliver to 
 A. B. certain goods, ctcijito the value of £17-4 13s, 5(/., 
 required for the building of St. Fillip's Church, to be 
 paid for by bill of exchange, to be drawn by the plaint- 
 iffs on A. B., the said bills should be paid, at maturity, 
 out of money to he received from St. Pliilip's Churcli. 
 It seems to have been admitted that the prorajise was 
 within the statute of frauds, and the only question for 
 the decision of the court was, whether a certain agree- 
 ment was a sufficient memorandum in writing to satisfy 
 the 4th section of the statute of frauds, and the court 
 held that it was not, on the ground that no considera- 
 tion appeared on the face of the agreement. Now, iu 
 
 ' 3 Bino;. 107.
 
 88 THE LAW OF GUARANTIES. 
 
 this case, as pointed out by Lord Abinger, C. B., in 
 Andrews v. Smith, supra^ there could be no doubt that 
 A. B. was indebted to the plaintiffs — in other words, 
 that there was a third person who was primarily liable 
 to pay the debt. * The question, however, whether the 
 defendant had assumed a liability to see that such third 
 person paid, or had merely undertaken to apply the 
 funds coming from St. Philip's Church to the payment 
 of. the debt was not (as has been observed) argued at 
 all. The decision of the court does not, therefore, 
 touch the i^rinciple of the decisions which we have just 
 been considering. 
 
 In the following cases, it is submitted, it will also be 
 found that the promise or undertaking of the defendant 
 was for himself, and not for another, and that there was 
 no one liable, in the first instance, to the plaintiff, within 
 the meaning of Rule I. They are all instances in which 
 the defendant's promise was made in consideration of 
 proceedings against a third party being stayed or with- 
 drawn, and in which, therefore, at first sight, the statute 
 might appear to apply. Thusjuin Jarmain v. Algar,^ the 
 defendant promised^ to sign a bail bond for a defendant 
 in a civil action, in consideration of the plaintiff' forbear- 
 ing to ariest such defendant on a suit already sued out. 
 But it was held, that this promise was not within the 
 4th sBftion of the statute of frauds. For, as will not 
 have escaped the reader's notice, the undertaking was 
 that defendant liimself would sign the bail bond, not 
 that anotJier should do so. 
 
 So, also, it had been previously decided, in the case 
 of Read v. Nash,~ that a promise by C. to A. to pay him 
 £50 and costs if he would withdraw the record, in an 
 
 ' 2 C. <fe P. 249. ' 1 "Wils. 305. 
 
 * Hiltz V. Scully, 1 Cine. o.^o.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 89 
 
 action of assault brought by A. against B., need not be 
 in writing, as it is not a promise within the statute of 
 statute of frauds.* Lee, C. J., in his judgment in this 
 case, says : " The single question is, whether this prom- 
 ise, which is confessed by the demurrer not to have 
 been in writing, is within the statute of frauds and per- 
 juries, that is to say, whether it be a promise for the 
 debt, default or miscarriage of another person. And 
 we are all of opinion that it is not, but that it is an 
 original promise, sufficient to found an assumjmt upon 
 against Nash, and is a lien upon Nash, and upon him 
 only. Johnson was not a debtor; the cause was not 
 tried ; he did not apj^ear to be guilty of any default or 
 miscarriao-e ; there mio;ht have been a verdict for him 
 if the cause had been tried, for anything we can tell ; 
 he never was liable to the particular debt, damages or 
 costs. The true difference is between an original prom- 
 ise and a collateral promise ; the first is out of the stat- 
 ute, the latter is not, when it is to pay the debt of 
 another which was already contracted." f 
 
 In Chater v. Becket,^ Lord Kenyon, C, J., referred to 
 
 ' 1 T. R. 201. 
 
 * See Griffin v. Derby, 5 Greene, 476 ; Sampson i\ Swift, 11 Vt. 315 ; 
 Peck V. Thompson, 11 Vt. 637; Jefferson v. Hunt, 2 Allen, 417 ; Merrill v. 
 Englesby, 28 Vt. 157 ; Walker d Norton, 29 Vt. 226 ; ^Pouglass v. Jones, 8 
 E. D. Smith, 551 ; Johnson v. Noonan, 16 Wis. 688 ; Thompson v. Blanch- 
 ard, 3 Coms. 335. 
 
 t Neither is a promise of another in consideration of forbearance a 
 binding promise, unless accepted by the promisee. Both must be bound 
 by such promise. Shupe v. Galbrith, 32 Penn. St. 10 ; Kuns v. Young, 
 34 Penn. St. 60 ; and if the promise creates no new rights, it is void for 
 another reason, namely, that it is without consideration. McCann v. Lewis, 
 9 Cal. 246. Nor is simple forbearance a good condition for a parol prom- 
 ise. Vanslyck v. Pulver, Hill & D. Supp. 47 ; Farley v. Cleveland, 4Conn. 
 432.
 
 t)0 THE LAW OF GUARANTIES. 
 
 the case of Read v. Nash, supra, and seemed to ajiprove 
 of it. 
 
 In 1 Wms. Saiind. p. 231, however, it is stated that 
 Read v. Nash is in effect overruled by Kirkham v. Mar- 
 ter.^ The facts of Kirkham v. Marter are as follows : 
 — A. had ridden the plaintift^'s horse without his leave, 
 and thereby caused his death, and tlie defendant (the 
 father of A.) promised to j^ay the plaintiff the damage 
 he had sustained, in consideration of the plaintiff for- 
 bearing to sue A.: it was held, that the defendant's 
 promise w^as void, not being in writing ; but Abbott, 
 C J., in delivering his judgment, expressly recognized 
 Read V. Nash, distinguishing Kirkham v. Marter from 
 it. He says : " The case of Read v. Nash is very dis- 
 tinguishable from this ; the promise tliere was to pay a 
 sum of money as an inducement to withdraw a record 
 in an action of assault brought against a third j^erson. 
 It did not appear that the defendant in that action had 
 even committed the assault, or that he had ever been 
 liable in damages ; and the case was expressly decided 
 on the ground that it w^as an original and not a col- 
 lateral 2)romise. Here the son had rendered himself 
 liable by his wa-ongful act, and the promise was expressly 
 made in consideration of the j:)laintift"'s forbearing to sue 
 the son. ^' 
 
 It is submitted that the distinction between the two 
 cases is perfectly clear. In Read v. Nash the promise 
 simply was, " forbear to proceed with the action you 
 have commenced against A., and I will pay you 50^." 
 
 ' 2 B. <fe A. 613. 
 
 * The same point has been decided in Connecticut, in Turner v. Hub- 
 bell, 2 Day, 457.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 91 
 
 In Kirkliam v. Marter it was, " do not make A. pay for 
 his default, and I will do so myself." 
 
 The older case of Fish v. Hutchinson is much the 
 same in effect as Kirkham v. Marter. In Fish v. Hutch- 
 inson,^ the plaintiff declared that, whereas one A. was 
 indebted to him in a certain sum of money, and he had 
 commenced an action for the same, the defendant, in 
 consideration that tlie plaintiff would stay his action, 
 promised to pay the money due to him by A. Demurrer 
 and joinder, JEt ijer totam curiam : "This case is very 
 clearly within the statute ; for here is the debt of an- 
 other party still subsisting, and a promise to pay it.^ 
 It is not like the case of Read v. Nash. In that case 
 there was no debt in another, it being an action of bat- 
 tery ; and it could not be known, before trial, whether 
 the plaintiff w^ould recover any damages or not. But, 
 in the present case, there is the debt of another still 
 subsisting, and a promise to pay it." It is quite possi- 
 ble to distino^uish Read v. Nash from Fish v. Hutchin- 
 son. For in Read v. Nash the promise of the defend- 
 ant was to pay 50/. and costs. On the other hand, in 
 Kirkham v. Marter and Fish v. Hutchinson, the defend- 
 ants promised, not to pay the plaintiff a fixed sum of 
 money, but something that a third person was liable to 
 pay. In the following case of Bird v. Gammon,^ it will 
 be seen that Read v. Nash was followed. In Bird v. 
 Gammon the facts were as follows: — The plaintiff hav- 
 
 ' 2 Wils. 94. ' 3 Bino-. N. C. 883. 
 
 * D'Wolf f. Rabaud, 1 Pet. (U. S.) 476; Sears n. Brink, 3 Johns. 210; 
 Gilligan v. Boardman, 29 Maine (6 Sliep.) 79; Huntress t'. Patten, 20 
 Me. 28; Ware v. Adams, 24 Me. 177; Elliot w. Giese, 7 Har. &J. 457; 
 Crane v. Bulloch, 1 R. M. Chad. 318.
 
 92 THE LAW OF GUARANTIES. 
 
 ing issued execution against Lloyd for debt, Lloyd, witli 
 tLe assent of tbe plaintiff, conveyed all bis property to 
 the defendant, who thereupon undertook to pay the 
 plaintiff the debt due from Lloyd, plaintiff withdrawing 
 the execution. It was held, on the authority of Read 
 'V. 'N ash,. <<up}'a, that the defendant's undertaking was not 
 within the 4th section of the statute of frauds. Tin- 
 dal, C. J., thus described the transaction : " It appears, 
 then, that the plaintiff, with the consent of Lloyd and 
 defendant, had relinquished his execution against Lloyd, 
 to look to the defendant ; that the defendant admitted 
 his liability w'hen the account was presented ; and that 
 the jury found such to have been the agreement between 
 the parties. No objection, therefore, can be raised on 
 the statute of frauds, for this is not an agreement to 
 pay the debt of a third person ; but an agreement that 
 if the plaintiff would forego his claim on Lloyd, the 
 defendant would pay the amount of his debt on his own 
 account. The case, therefore, falls within the principle 
 of Read i;. Nash.^ * "' ^ It is objected that the plaintiff, if 
 he fails in this action, may still sue Lloyd or issue exe- 
 cution ; but if he were to do so, Lloyd might show on 
 plea or audita querela that, on good consideration, the 
 plaintiff gave up his remedy against Lloyd, and took 
 the defendant's liability instead ; wdiich, though not 
 properly accord and satisfaction, would be a complete 
 defense on the general issue. Good v. Cheeseman,^ and 
 the cases there cited." 
 
 In the case of Bushell v. Beavan '^ we have an in- 
 stance of a promise, which, at first sight, would appear 
 to obviously fall within the statute of frauds. For the 
 
 ' 1 Wils. 305. ' 1 Bing. N. C. 103. 
 
 » ^ B. (fe Adol. 328.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 93 
 
 promise was '* to procure the signature of a third per- 
 son to a guaranty." ^ * And this would seem to be, in 
 effect, an undertaking that the third person shall do a 
 certain thing, namely, §ign the guaranty. Here, again, 
 no person " other than the defendant himself was ever 
 liable on the promise sued njionP The facts were as 
 follows : — The plaintiffs, owners of a ship hired on 
 charter-party by H. Seraphill, refused to let her sail till 
 certain disputes about the freight, between them and 
 H. Semphill, were settled, by H. Semphill giving se- 
 curity ; whereupon the defendant, in consideration that 
 the plaintiffs would let H. Semphill sail, without giving 
 security, undertook to get P. Macqueen to sign a 
 guaranty and deliver it to the plaintiffs in a week. The 
 guaranty, which it was promised that P. Macqueen 
 should sign, ran as follows: — "Whereas H. Semphill 
 has hired your ship for six months from the 12th July, 
 1830, and such longer time as his intended voyage may 
 require, and has paid or secured the freight for six 
 months from the 20th August, 1830, and is about to 
 leave England, I guarantee the payment of freight which 
 shall accrue for any portion of the voyage after the said 
 six months." And the court held, that this guaranty 
 was within the statute of frauds. Nevertheless, the 
 court also held — and, as it is submitted, rightly held — 
 that the defendant's promise to procure Macqueen's sig- 
 nature to this document did not fall within the statute. 
 Tindal, C. J., in the course of his judgment, said: "The 
 pro'mise, on which the first count is framed, is an im- 
 mediate undertaking by the defendant to get a copy 
 
 ' As to promises to give a guaranty, see Mallet v. Bateman, L. R. 1 C. P. 163, 
 
 ante^. 60. 
 
 * Browne, Stat. Frauds, sec. 178.
 
 94 THE LAW OF GUARANTIES. 
 
 of a o'uaranty wliicli is written above it, duly signed by 
 Mr. Potter ^lacqueen, and within a week afterwards de- 
 livered to the plaintiff's agent. Tlie immediate consid- 
 eration for that promise was the removal, by the plaintiff, 
 of a stop which they had put upon the vessel, then ly- 
 in<"" in St. Katherine's Docks, and the permitting her to 
 sail on the voyage before the security w^as signed. Un- 
 der these circumstances, the contract appears to us not 
 to be a contract to answer for the debt, default or mis- 
 carriage of any other person, but a new and immediate 
 contract between the defendant and the plaintiffs. If 
 Mr. Macqueen had signed the guaranty, that guaranty 
 would, indeed, have been within the statute of frauds ; 
 for his is an express guaranty to be answerable for the 
 freio'ht due under the charter-party, if Semphill did not 
 pay it. But no person could be answerable, on the 
 promise to procure his signature, but the defendant. 
 Semphill had never engaged to get the guaranty of 
 Macqueen, nor had Macqueen engaged to give it. There 
 was, therefore, no default of any one for whicli the de- 
 fendant made himself liable; but he did so simply on 
 Lis own immediate contract. For, as to any default of 
 Semphill in paying the freight, the action, on the under- 
 taking of the defendant, could not be dependent on that 
 event ; for it would have been maintainable if the guar- 
 anty were not signed at any time after the day on 
 which the defendant engaged it should be given, that 
 is, long before the time when the freight became paya- 
 ble." The ground of the decision, as stated in the judg- 
 ment of the court, may be briefly stated to be, that from 
 tJi'e very nature of the case^ it was impossible that any 
 one could be liable to the plaintiff' simultaneously with 
 the defendant. For, as soon as the liability of the third 
 person (Macqueen) commenced^ by his signing the
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 95 
 
 guaranty, the liability of the defendant ceased^ and, un- 
 til tlie third person signed the guaranty, obviously, 
 there could be no one liable but the defendant. 
 
 Again, in the old case of Elkins v. Heart/ just as in 
 Bushell V. Beavan, the promise was seemingly to answer 
 for another, within the statute of frauds. There the 
 plaintiff having sued J. G., the defendant's son-in-law, 
 for money due from him to the plaintiff for diet and 
 lodging, the defendant, in consideration that the plaint- 
 iff' would forbear to sue the said J. Gf. for the said sum, 
 promised that the said J. G. should not leave the king- 
 dom without paying the same. The court inclined to 
 the opinion that this case was not within the 4th section 
 of the statute of frauds. Now, in this case, it will be 
 observed that the terms of the engagement of the de- 
 fendant simply were that J. Gr. should not leave the 
 kingdom without paying his debt. But it does not 
 appear that J. G., by leaving the kingdom, incurred any 
 liability to the plaintiff*. Consequently there was no 
 principal debtor or defaulter, within the meaning of 
 Rule I. The event on which the liability of the de- 
 fendant was to attach, namely, J. G. leaving the country 
 without paying his debt, would not make J. G. liable 
 to the plaintiff'. Just as, on the other hand, the failure 
 of J. G. to pay his debt (provided he did not leave the 
 country) would not render the defendant liable to J. G. 
 The decision may, in a word, be put upon the ground 
 that the defendant's promise was that J. G. should not 
 leave the kingdom; bat J. G. made no such promise, 
 and therefore no one but the defendant himself was ever 
 liable upon the promise in question. * 
 
 ' Fitzs', 202. 
 
 * Kuhn r. Brown, 1 N. Y. S. C. R. (Ilun.), 29.
 
 96 THE LAW OF GUARANTIES. 
 
 The following cases, again, form another class in 
 which the statute of frauds has no application, because 
 there is no other person liable but the defendant him- 
 self It frequently happens that one person is induced, 
 at the I'equest of anothei', to defend or commence some 
 leo'al proceeding in consideration of a promise, by the 
 person making such request, to indemnify him against 
 the costs of the suit. In these cases it is submitted that 
 the 4th section of the statute of frauds has no applica- 
 tion. The foundation of a promise to answer for the 
 debt, default or miscarriage of another is the present or 
 future liability of a third person in the first instance to 
 the promisee. Take away this liability, and not the 
 statute of frauds, but the general lex contractus, puts an 
 end to the contract,^ which cannot survive the loss of 
 its essential ingredient, the lial)ility of a third person. 
 Now, in the present class of cases, it will be observed, 
 on examination, that the foundation of the contract is 
 not, as in the case of a guaranty, the present or future 
 liability of a third person to the promisee. True, such 
 a liability may arise, but whether it arises or not the 
 promiser is equally liable, whereas in the case of a guar- 
 anty, as already pointed out, if it does not arise, the 
 contract is at an end for loss of one of its essential in- 
 gredients. To make this still clearer. If a person at 
 your request defends or commences an action, and you 
 engage to indemnify him, you are liable on your engage- 
 ment whether he is successful or whethe-r he prove un- 
 successful. But it is only in the former event that a 
 third person is liable in the first instance, for, unless 
 you succeed, your adversary has not to pay you either 
 costs or damages. In the latter event the promisee has 
 
 ' Per Willes, J., in Mountstephen v. Lakeman, L. R. 1 Q. B. 197.
 
 OPERATION OF TUE STATUTE OF FRAUDS, ETC. 97 
 
 to pay at least his own costs, and these are covered 
 by your indemnity, which exists, though the liability 
 of a third person has not arisen, because such a lia- 
 bility is an accidental, and not, as in the case of a 
 guaranty, an essential ingredient of such a contract. 
 Accordingly, in consonance with these principles, in the 
 case of Bullock v. Lloyd,^ it was held that the promise 
 of an indorser of a dishonored bill of exchana'e to in- 
 demnify a subsequent indorsee against costs, if he ^vould 
 bring an action against the acceptor, would certainly not 
 require to be in writing. The only case which seems 
 to militate against this view is Winckworth v. Mills,^ 
 where it was decided, that a promise by the indorser of an 
 unpaid note to indeninify the holder if he would proceed 
 to enforce payment against the other parties on the note, 
 must be in writing, oi' it would be void under tlie statute 
 of frauds. Much importance cannot, liowever be attached 
 to this latter case, which was decided at Nisi Prius 
 many years ago, and which is at variance with modern 
 authorities, though it has never been expressly over- 
 ruled. Besides, Lord Kenyon offered to save the point, 
 but the plaintiff's counsel declined. Moreover, the case 
 of Howes V. Kash,^ is an authority to the same effect, as 
 Bullock v. Lloyd. Li Howes v. Nash, plaintiff had ac- 
 cepted a bill for 20^. for the accommodation and on ac- 
 count of the defendant. This bill was not taken up by- 
 the defendant when due, and the defendant accordingly 
 prevailed upon the holder of the bill to accept 16^. in 
 part and the p]aintiff''s acceptance for six guineas (being 
 the balance due -on the bill, includins: the interest then 
 due) for the remainder. This bill for six guineas not 
 being paid w^lien due, the holder of the bill brought an 
 
 '2 C. <SrP. 119. ' 1 Esp. 162. 
 
 » 2 Esp. 404.
 
 OS THE LAW OF GUARANTIES. 
 
 action on it against the })liiiutiff (Howes) as the acceptor. 
 On the action being Ijronglit, phiintift* acquainted the 
 defendant (Martin) with the circumstances, and he de- 
 sired the plaintiff (Howes) to defend the action. In 
 consec[uence of this rej^resentation, pUiintiff did accord- 
 ingly defend, when the holder of the bill obtained a 
 verdict for the amount of the bill, which, with costs, 
 amounted to 32/. 
 
 To i-ecover this sum the plaintiff brought an action 
 of assumpsit for money laid out and expended to the 
 use of the defendant, declaring on the common counts. 
 At the trial it was objected that, under the statute of 
 frauds, this action was not maintainable, inasmuch as 
 there was no note in writing, and the object of the 
 action was to recover from the defendant a sum of 
 money which was the debt and costs in an action 
 against the plaintiff hepelf on her own acceptance, and 
 which, therefore, was to be deemed her own debt. In 
 support of this view, a case of Hitchcock v. Hicks was 
 cited, which was said to have been decided before Lord 
 Kenyon. This case does not, however, appear to be re- 
 ]iorted anywhere. Lord Kenyon overruled the objec- 
 tion in the present instance, and held that the case was 
 not within the statute of frauds. He said that it ap- 
 peared that the plaintiff never had any consideration 
 whatever for her acceptances, which were given merely 
 on the defendant's account and for his use; that the 
 defense to the action on the note was on his account, 
 and from whence he could have derived a benefit ; 
 that as he, therefore, was 'personally interested, and di- 
 rected the defense to be made by which he might 
 have been benefited, the money must be considered to 
 have been laid out by the plaintifi" on his account
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 99 
 
 aud to Lis use, and that the plaiutilY, therefore, was 
 entitled to recover it back from him. 
 
 To the same eifect, also, is the case of Adams v. 
 Dansey.^ There the plaintiff, an occupier of land, at 
 the request of the defendant, and upon a promise of 
 indemnity, resisted a suit of the vicar for tithes. It 
 was held, that the defendant's promise was not a prom- 
 ise required b the statute of frauds to be in writinf^. 
 ISTow, the ground of this decision is, that the promise 
 was not an undertaking for the debt, default or mis* 
 carriage of another, but was for a liability to which 
 the plaintiff himself was to be exposed, at the request 
 of the defendant. This case, therefore, so fjir resembles 
 the case of Eastwood v. Kenyon ^ (which we shall cite 
 hereafter to show that the promise is not within the 
 statute unless made to the creditor), that it is a prom- 
 ise made to the debtor and not to the creditor. But 
 it differs from that case in this, that here the promise 
 is not, as in Eastwood v. Kenyon, to pay the promisee's 
 debt to the creditor of the promisee, but to pay the 
 promisee himself the expenses which he may incur at 
 the promiser's request. It is, therefore, submitted that 
 the true reason for excepting such a promise from the 
 operation of the ith section of the statute of frauds 
 is because it amounts to a promise to pay the 2)romiser's 
 oion debt." 
 
 There is another class of cases which is sroverned 
 by the rule that the statute of frauds does not aj^ply 
 unless there is a principal debtor. It sometimes hap- 
 pens that a transaction has the appearance of being a 
 contract between debtor, surety and creditor, but is not 
 
 ' 6 Bing. 506; 4 M. <t P. 245. ' 11 A. & E. 438. 
 
 * Besshears v. Rowe, 46 Mo. 501 ; Garuer v. Hudgins, Id. 399.
 
 100 THE LAW OF GUARANTIES. 
 
 SO in reality. If it slioiild appe.ar, T)y evidence, that 
 sncli was not the nature of the transaction, and that 
 the alleged ])rinci])al debtor and surety are, in fact, 
 nothing more than Joint debtors, the operation of the 
 4th section of the statute of frauds will be excluded.* 
 Thus, in Batson v. King,^ it was held that a prom- 
 ise made by the defendant, that, if the plaintiff would 
 draw^ a bill, to be accepted by one Dalton and indorsed 
 hy the defendant, he (plaintiff) should not be called 
 •upon, need not be in writing, under the 4th section of 
 the statute of frauds. Martin, B., delivered the follow- 
 lowing judgment: — "As between the holder of the 
 bill of exchange and the parties whose names "were on 
 it, Dalton, as acceptor, was primarily liable, and the 
 drawer and indorser stood in the relation of sureties- 
 for him. JBut as hetiveen tlie parties, it may edivays he 
 proved wliat is the real nature of the transaction. As 
 between themselves, Dalton and the defendant were the 
 real principals. The plaintiff, having paid the bill, had 
 a right to sue the defendant for money paid to his 
 use. The statute of frauds has no application to the 
 case; and the question in Green v. Cresswell does 
 not arise here. It might have been other^vise if Dal- 
 ton had been entirely separate from the defendant, 
 and the plaintiff" had become responsible for Dalton, 
 upon the defendant's promise to indemnify him. Dal- 
 ton and the defendant, being both principals, the only 
 answer which the defendant had was by a plea in 
 abatement for the non-joinder of Dalton." The effect 
 
 U H. <fe K 739. 
 
 * Browne, Stat. Frauds, sec. 164 ; Kuhn r. Brown. 1 N. Y. S. C. 
 (Hun.) 244 ; Hooyer v. ^lorris, 3 Hamm. 56 ; Chambers v. Robbins, 28 
 Conn. 544.
 
 OPERATION OF THE STATUTE OF 'FRAUDS, ETC. 101 
 
 of this decision really is, that, where the actual trans- 
 action, though apiKireidhj resembling a guaranty, really 
 is not one, the court will treat it as being outside the 
 4th section of the statute of frauds. * So, it appears, 
 that if a man says to another, "If you will, at my re- 
 quest, put your name to a bill of exchange, I will save 
 you harmless," this not within the statute.^ " It is not 
 a responsibility for tlie debt of another. It amounts 
 to a contract by one, that if the other will put him- 
 self in a certain situation, the first will indemnify him 
 against the consequences." ^ * 
 
 The rule that the 4th section of the statute of frauds 
 only applies where, at the time the promise is given, 
 the present or future legal liability of some third per- 
 son is contemplated by both the promiser and the prom- 
 isee, is further illustrated by cases in which the third 
 person referred to is under disability. For a promise to 
 answer for the debt, default or miscarriage of a person 
 incompetent to contract, or not answerable for his wrong- 
 ful acts, need not be in writing, f Thus, in the case 
 of Harris v. Huntbach,'^ the plaintiff declared, first, for 
 money lent and advanced by the plaintiff at the defend- 
 ant's request; and, secondly, for money laid out and 
 expended by the plaintiff at the defendant's request. 
 The question upon the case reserved at the trial was, 
 whether the evidence supported the declaration. A 
 
 ' Per Pollock, C. B., dictum in Batson ^ Ibid. 
 
 V. King, 4 H. & N. 739. • ' I Burr. 373. 
 
 * Godden i\ Pierson, 43 Ala. 370. 
 
 t Connerat v. Goldsmith, G Geo. 14; Cbapin v. Lapham, 20 Pick. 467 ; 
 Koclie V. Chaplin, 1 "Bailey, 4^9 ; Mease v. AVagner, 1 McCord, 395 ; Drake 
 v. Flewellen, 33 Ala. 106 ; see, however, Dexter v. Blanchard, 11 Allen, 365 ; 
 criticised in Browne on Stat. Frauds, note to sec. 146 ; and DowTie v. 
 Hinchman, 25 lud. 455.
 
 102 THE LAW OF GUARANTIES. 
 
 note of the defeiulant was produced in evidence by 
 the plaintiff, in tlie following words : — "'Sd December^ 
 1751. Then received of Mr. Harris the sum of 10/. on 
 the helialf of my grandson, which I promise to Ije ac- 
 countable foi\ on demand. Witness my hand. S. Hunt- 
 bach."' It appeared that the grandson, on Avhose be- 
 half the note was given, was an infant. Mr. Justice 
 Foster, in giving his opinion, said : " The infant was 
 not liahle, and, therefore, it could not be a collateral 
 undertaking. It was an original undertaking of the 
 defendant to pay the money."* So, also, from the old 
 case of Duncombe v. Tickridge,^ decided in 24 Car. 2, 
 it appears that an undertaking by a stranger to joay for 
 " diet, lodging and apparel of an infant,*' is an original 
 promise, which extinguishes the liability of an infant.. 
 Much importance cannot, however, be attached to this 
 case, for it is apprehended that an undertaking to pay 
 for necessaries supplied to an inftint, made on proper 
 consideration, would amount to a collateral promise, 
 within the 4th section of the statute of frauds, since 
 the infant would himself be liable for necessaries, f 
 
 Whether a promise to answer for the debt, default 
 or miscarriage of a married ivonian amounts to an orig- 
 inal or a collateral promise, appears never to have been 
 decided in England.^ % However, there are two cases 
 
 J Aleyu, 94. v. Lons;- 4 Pennsylv. S50; Connerat v. 
 
 ^ See, however, American cases of Goldsmith, 6 Geo. 14. 
 Kimball v. Newell, 7 Hill, 116; Miller 
 
 * Where an infant gl^*s his note for land, and at his majority disaf- 
 firms his act, a surety on such note will not be liable. Baker v. Bennett, 
 54 Mo. 82. 
 
 t Browne, Stat. 'Frauds, sec. 156. * 
 
 X Where there is no fraud, duress, deceit, or violation of law or public 
 policy, on the part of the payee, in procuring the execution of a promis-
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 103 
 
 wliich throw some light on this question. The first is 
 White V. Cuyler.^ There the defendant's wife, without 
 any authority from the defendant, her husband, by 
 articles of agreement, \nider seal^ between herself and a 
 Mr. Low, of the one part, and the plaintiff of the other 
 part, agreed to take the plaintiff with her to Barbadoes 
 as a waiting maid, and also agreed, amongst other 
 things, to })ay the plaintiff's passage home to England, 
 in case she (the defendant's wife) should dismiss the 
 plaintiff from her service. The defendant's wife having 
 dismissed the plaintiff, but not having paid the plaint- 
 iff's passage home to England, the plaintiff brought an 
 action of assumpsit against the defendant. In moving 
 for a rule to enter a nonsuit (the verdict having passed 
 for the plaintiff), it was, inter alia, contended at the 
 bar that the action Avas Avrongly conceived, if either the 
 defendant or Low could be sued on the covenant con- 
 tained in the above.-named articles of a2:reement under 
 seal. Lord Kenyon, in discharging this rule to enter a 
 nonsuit, said, " And, with regard to Low, the contract 
 of a guaranty or surety tinder seal does not, by opera- 
 tion of law, extinguish the debt of the principal." ^ Li 
 this case; therefore. Lord Kenyon seems to have been 
 disposed to treat Low as a surety, under the articles of 
 agreement, though the principal debtor under such in- 
 strument Vv-as clearly (if any one) the married woman. 
 
 ' 1 Esp. N. P. C. 200; s. c. 6 T. R. wider seal, that would have been an in- 
 
 170. sufficient authority to hei" t) execute a 
 
 - The defendant coukl certainly not deed. Moreover, supposing she had 
 
 have been sued on the articles of a:;;ree- been authorized by deed to execute the 
 
 inent, because he never authorized' liis said articles, they would not have bound 
 
 wife to execute them at all, and, suppos- her husband, as she signed her own 
 
 ing that he had done so, by writing not name instead of his. 
 
 sory note by a married woman, tlie snrelies on sach note are liable, even 
 though the principal is not. Davis v. Statts, 43 Ind. 103. A surety ob- 
 tained by fraud is not, of course, liable. Craig r. Hob'cs, 43 Ind. 363.
 
 10-1 THE LAW OF GUARANTIES. 
 
 Perlia])s, however, .it would not l>e incorrect to say that, 
 in tliis case, the husband must he treated as the princi- 
 pal debtor, though his liability did not certainly arise 
 under tlie articles of agreement.^ Indeed, until i-ecent- 
 ly,'^ whenever the wife had express or implied authority 
 to enter into contracts, the Inisland alone was liable. 
 It would seem, therefore, that (subject to the provisions 
 of the married women's property act, 1870), whenever a 
 person promises to answer for a married woman's breach 
 of contract^ in a case where she is expressly or impliedly 
 authorized by her husband to enter into such a contract, 
 the husband is the principal debtor, and the promiser is 
 the surety. Where she has no such authority, either 
 the promiser is solely liable, or else is not liable at all, 
 according to the circumstances of the case. In Chitty 
 on Contracts,'^ it is broadly laid down that, in such a 
 case, the promiser is always solely liable. It is sub- 
 mitted, however, that this is incorrect.* 
 
 The next case throwing light on the present ques- 
 tion is Darnell v. Tratt.^ There, a married woman took 
 her son to school, but no evidence was given of what 
 passed at that time. Afterwards, a bill was delivered 
 to the boy's uncle, who said it was quite right to de- 
 liver the bill to liim, for that he was answerable. It 
 Avas held, that the statute of frauds, section 4, did not 
 apply, and that it was proper to leave it to the jury to 
 say, under those circumstances, whether the original 
 credit was not given to the uncle. In this case, there- 
 fore, though the alleged principal debtor was a married 
 woman, it was thought proper to treat this case as one 
 presenting no extraordinary features, and make the 
 
 ^ See last note. * See judgment of Willes, J., in 
 
 * See now Married Womcn'.s Prop- Mountstejiheu v. Lakeman, L. R. 7 Q. 
 erty Act, 1870. B. 197, 201. 
 
 ' 9th edit. p. 475. " 2 C. A P. 82.
 
 OPERA.TION OF THE STATUTE OF FRAUDS, ETC. 105 
 
 nature of the uncle's liability depend on the answer of 
 the jury to the question, To wliom was credit given? ^ 
 It is submitted, however, that if in this case the jury 
 had expressed the opinion that credit was given to the 
 married woman, in the first instance, the court might 
 well have held that the transaction w^as within the 
 statute of frauds, on the ground that the wife was act- 
 ing as the implied agent of her husband.^ 
 
 As a further corollary from the principle that a 
 promise is not within the statute of frauds unless there 
 be a third person who is primarily liable, it follows, as 
 a general rule, that wherever the promise of the de- 
 fendant has the effect of extinguishing or releasing the 
 liability of the third person, it amounts to an original 
 promise, and is therefore not within the 4th section of 
 the statute of frauds.* In such cases there is, in fact, 
 no principal debtor. Thus, as under the old law, the 
 discharge of a debtor taken under a (Xi. sa. destroyed 
 the debt, it was held that a promise to lyay the debt 
 
 ' In the case of ilaj>'2:s v. Ames, too, coverture was pleaded iu order to show a 
 
 cited, -pmt, p. 107, the tact of the princi- want of consideration, 
 pal debtor being^ a married woman does - See ante, p. 103. 
 
 not appear tc have been noticed, thoi:gh 
 
 * A promise to pay a debt of another in consideration that the plaint- 
 iff, who has taken him on a ca. sa. will discharge him out of custody, is 
 original, and not within the statute, for the discharge extinguishes the 
 debt. S'oue r. Symmes, 18 Pick. 467; Mosley v. Taflor, 4 Dana, 542; 
 Robinson v. Lane, 14 Smedes & M. 161; Qumtard v. D'Wolf, 34 Barb. 
 97; Harrington v. Rich, 6 Vt. 666; Curtis i). Brown, 6 Cush. 492; Ander- 
 son V. Davis, 9 Vt. 186 ; Watson v. Randall, 30 Wend. 201 ; Althouse v. 
 Ramsey, 6 AVhart. 331; Draughan v. Bunting, 9 Ired. 10; Click v. 
 McAfee, 7 Port. 62 ; Ainxtrong v. Flora, 3 T. B. Mon. 43 ; Wood v. Cor- 
 coran, 1 Allen, 405 ; Mead r. Keyes, 4 E. D. Smith, 510 ; AncTi-e v. Bod- 
 man, 13 Md. 241 ; Eddy v. Roberts, 17 111. 505; Gleason v. Briggs, 28 Vt. 
 135; Watson v. Jacob.=, 29 Vt. 169. Sse Browne Stat. Frauds, sec. 307 
 ei seq. ; Hedges v. Strong, 3 Orcg. 18 ; Ludwick ». Watson, Id. 256 ; Stewart 
 V. Hinkle, 1 Bond, 508.
 
 lOG TJIE LAW OF GUARANTIKS. 
 
 for Avhie-li a person was tlins taken was not w itliin sec- 
 tion 4 of the statute of frauds. For instance, in Good- 
 nian v. Chase/ the plaintitY Lad taken A. B. under a 
 ea. sa. The defendant promised to pay A. B.'s debt, in 
 consideration of the plaintiff discliaro-ino; him from 
 custody. It was hekl that, as by the discharge of A. 
 B. from custody, with the consent of tlie plaintiff, the 
 debt itself w^as extinguished, tlie promise made in con- 
 sideration of that discharge was an original promise. 
 Lord Ellenborough, C. J., said: "By the discharge of 
 Chase with the plaintift^'s consent, the deb^, as between 
 those personSjWas satisfied. "' ^' ^ Then,if so, the promise 
 by the defendant here is not a collateral, but an origi- 
 nal promise, for which the consideration is the discharge 
 of the debt as between the plaintiff and Chase. That 
 being so, it becomes wholly unnecessary to consider the 
 question arising 'out of the construction of the 4th sec- 
 tion of the statute.'' 
 
 In Butcher v. Steuart,^ where the promise w^as also 
 in consideration of the discharge from custody of a 
 third person arrested under a ca. sa., Goodman v. Chase 
 was followed. 
 
 So, again, in Lane v. Burghart;^ plaintiffs having 
 taken one Bacon in execution for debt, discharged him 
 u[)on the following undertaking of the defendant : " In 
 consideration of your discharging Bacon out of custod}^, 
 I undertake that he shall pay the debt due to jou by 
 four half-yearly instalments," tfcc. The defendant sub- 
 sequently became bankrupt, and obtained his certificate. 
 Lord Deuman, C. J., said : " Bacon ^j-as at this time in 
 custody'under a ca. sa. for the debt in cpiestion ; and 
 as that w\as entirely discharged by the execution, and 
 he'could no longer be sued for it, or make default in 
 
 ' 1 B. & A. 29Y. • 11 M. cfc W. 857. M Q. B. 933.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 107 
 
 respect of it, it was argued, on tlie aiitliority of Good- 
 mau 'V. Cbase,^ tLat this luidertaking was an original 
 one, on tlie part of the bankrupt, to pay the amount 
 of the sum that had been due from Bacon, and though 
 in form it was an undertaking that Bacon should 2:)ay, 
 yet, at most, it was an undertaking by the defendant to 
 pay by the hand of Bacon. On consideration we agree 
 that this is correct; the unpaid iustahnents mighty 
 therefore, have been estimated and proved under the 
 commission. It follows that his certificate is a bar to 
 the action." 
 
 In Mafrsrs v. Ames,^ the first count of the declaration 
 stated that Ann Prickett, .a married woman, was in- 
 debted to the Howells before they became bankrupts, 
 and was arrested at their suit ; that, thereupon, in con- 
 sideration that the Howells (before their bankruptcy) 
 would procure the discharge of Ann Prickett, and take 
 her bill of exchange for the amount of the debt, the 
 defendant undertook to pay the amount of the bill of 
 exchange, in case it should be dishonored by Ann 
 Prickett. The second count was upon an undertaking 
 to pay the debt for which Ann Prickett w^as arrested, 
 in consideration of the Howells procuring her discharge. 
 It was held, that the undertaking stated in the first 
 count was within the statute of frauds, but that that 
 stated in the second count was not. It will be observed,, 
 that the reason the undertaking stated in the second 
 count could not be within the -itli section of the statute 
 of frauds is, because the consideration for it was the 
 discharge from arrest of the principal debtor, and her 
 consequent release from all lial^ility. 
 
 On the same principle, where there is a complete 
 
 M B. <fe Aid. 297. ' 4 Bing. 470 ; 1 M. & P. 294. Se&- 
 
 ante, note 1, p. 105. *
 
 lOS THE LAW OF GL^VRANTIES. 
 
 novation^ tliat is to say, a new agreement, l)y which it 
 is arranoed that an old debt should be discharged, and 
 an entirely new agreement and liability entered iilto, 
 the statute of frauds does not apply. "' Thus, in ex 
 ixu'te Lane,^ it was decided that if A. be a creditor of 
 B., and B. and C. purpose to enter into, or have entered' 
 into partnership, and say to A., " We wish this debt to 
 be a debt from us both, and we will pay it," and A. 
 accedes to that, althougli there is no writing, the agree- 
 ment is valid and eti'ectual, and is not impeached or 
 affected by the statute of frauds. The effect of such an 
 agreement is to extinguUlt the first debt, and, for a 
 valuable consideration, to substitute the second debt. 
 
 So, again, in Anstey v. Marden,^ A. being insolvent, 
 a verbal agreement was entered into betM'een several of 
 liis creditors and B., whereby B. agreed to pay tlie 
 creditors lO.s. in the pound in satisfaction of their debts, 
 which they agreed to acce])t, and to assign their debts 
 to B, It was lield, that this agreement was not within 
 the statute of frauds, not being a collateral promise to 
 pay the debt of another, but an original promise to pur- 
 chase the debts. It appears that in this case the prom- 
 ise of B. had the effect of extinguishing the liability 
 of A. t 
 
 ' 1 De Gex, 300. stey v. Marden, it did not ajipear tliat 
 
 " 1 iS'. R. 124. In the case of Emmet the' liability of the i)riiicipal debtor was 
 
 V. Dewhurst, 3 Mac. <t G. OST, which is extinguished, and the statute of frauds 
 
 in all other respects very similar to An- was held to apply. 
 
 * See generally, as ta novation, Roth i-. Miller, 15 Serg. & Rawl. 162; 
 Gallagher's Exrs. t. Roberts, 2 Wash. C. C. 191, 321; Sneed's Exrs. ». 
 White, 3 J. J. Marsh. 527; Musgrove r. Glasgow, 3 Incl. 3J; Browns. 
 Wright, 7 Mou. 398; Choppin v. Gobbold, 13 La. Ann. 238; Gails », 
 Osceola, 14 Id. 54 ; Baker v. Briggs, 8 Pick. 122 ; Commonwealth r. Miller, 
 4 Serg. & Raw. 452 ; McLean t. Lafayette Bank, 3 McLean, 687. 
 
 t See JolleV r. Walker, 2G Ala. G70 : Therasson r. McSpedon, 2 Hilt. 1.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 109 
 
 There is aiiotber class of cases turning upon tlie 
 same principle. These cases, which are of frequent oc- 
 currence, are cases in which a person to whom another 
 is indebted assio;ns or transfers the debt owinir to him 
 to a person to whom he is himself indebted.^ 
 
 Thus, suppose A. is debtor to B., and C. is debtor to 
 
 A. for the same or a larger amount, and that the three 
 agree that C. shall be B.'s debtor, instead of A., and 
 that C. promises to pay B., in such a case B. may main- 
 tain an action against C.^ " These cases are exceptions 
 to the rule of law that a chose in action cannot be as- 
 signed. It is a necessary ingredient to this exception 
 that the original debt from A. to B. should be extin- 
 guished, for B. cannot sue C. if he retains the right to 
 sue A.^ To such cases, therefore, the 4th section of the 
 statute of frauds can have no application, since it is es- 
 sential to the validity of the transaction that the trans- 
 feror's liability be extinguished. In such a case the sub- 
 stituted debtor, in fact, pays Ids own deht with liis own 
 money, to a substituted creditor, i. e.^ the transferee." 
 Thus, in Lacy v. M'Neile,"^ one Goodfellow, indebted to 
 the plaintiffs for goods sold, upon being released from 
 
 ■ See Israeli. Doiii^las, 1 H.Bl. 239; Fairlie v. Denton, 2 M. & R. 353, and 
 
 Tatlock V. Harris, 3 t. R.'l74 ; Hodg- note (c), 355; s. c. 8 B, & C. 395. 
 
 son V. Anderson, 5 D. & R. 735; s. c. 3 "1 Wms. Saiind. p. 226. and the fol- 
 
 B. & C. 842 ; Wilson v. Coup]and, 5 B. lowinj^ cases there cited, viz., Cuxon v. 
 & A. 228; Cuxon v. Chadlev, 3 B. & C. Chadley, 3 B. & C. 591 ; Wharton v. 
 591 ; Wharton v. Walker, 6 D. (fe R. 288 ; Walker, 6 D. cfe R. 288 ; so. 4 B. & C. 
 4 B. & C. 163 ; Fairlie v. Denton, 2 M. & 1 03. See also Parker v. Wise, G N. & S. 
 R. 353, and note (c). 355 ; s. c. 8 B. <fe C. 239 ; Liversiec; v. Broadbent, 4 H. & N. 
 395 ; Roe v. Haugh, 3 Srdk. 14. G03. 
 
 ' W'ilson V. Coupland, 6 B. & A. 228 ; "4 0. & R. 1, 9. 
 
 * McLareni'. Hutchinson, 22 Cal. 18^; Connor v. Williams, 2 Rob. 
 (K Y.) 46; Clymer t\ De Young, 54 Penn. St. 118; Ford i\ Finney, 35 
 Ga. 258: Sanders r. Clason, 13 Minn. 379; Jackson v. Rayner, 12 Johns.. 
 291 ; Barber v. Bucklin, 2 Denio, 45.
 
 110 THE LAW OF OLARAXTIE.-^. 
 
 liis liability, assi<2;ne(l to tlieiu a debt due to liim from 
 the defendants. Xotice of the assignment was given to 
 a partner in the defendant's firm, who, hy farol^ prom- 
 ised, in the name of such firm, to pay the de])t to the 
 plaintiffs out of the partnership funds. It- was held, in 
 an action by the plaintifls against the defendants for 
 money had and received, that the promise was not 
 Avithin the statute of frauds. Abbott, C. J., in the 
 course of the argument, said : " The defendant's debt 
 to Goodfellow was assigned to the plaintiifs, and Good- 
 fellow discharged from all liability to tliem ; then, 
 surely, the old debt by him was extinguished, and a 
 new one by the defendants created." 
 
 Wilson V. Coupland,^ is another instance of this 
 kind. There the plaintiffs were creditors and the de- 
 fendants debtors of T. <fe Co., and, by consent of all 
 parties, an arrangement was made that the defendants 
 should pay to the plaintiffs the debt due from them to 
 T. <fe Co. The statute of frauds does not seem to have 
 heen alluded to in the case, and it Avas held, that, as the 
 demand of T. tfe Co. on tlie defendants was for money 
 bad and received, the plaintiffs were entitled to recover 
 on a count for money had and received, against the de- 
 fendants.^ Now, in this case, the debt transferred ac- 
 tually existed. 
 
 In the case of Parkins v. Moravia,'^ on the other 
 hand, the transfer was not of an existing debt, but of a 
 contingent one. There the defendant, in consideration 
 that the plaintiffs would discount a bill of exchange for 
 a person named Benjamin, undertooh to pay the plaint- 
 iffs such sum of money as should be due from him to 
 
 ' 5 B. & Aid. 228. dare specially. See TThaton v. Walker, 
 
 ■^ Otherwise he would have had to de- 4 13. <fe C. 16S. 
 
 = 1 C. <fc r. 376.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. Ill 
 
 Benjamin for work done, within a specified time. It was 
 contended that the case was within the statute of frauds. 
 Abbott, C. J., said, " It is an assignment of a thing not 
 in esse. Wilson v. Couphmd is not like this case." He 
 also said, in answer to plaintiff's counsel, " it is to go 
 to reduce the bill, and, therefore, it is to answer for the 
 debt of another." It appears, from the report of this 
 case, that another question, was also raised as to the 
 amount of stamp duty required, and a verdict was 
 taken for the plaintiff, subject to the two j^oints of law, 
 in order that the opinion of the court above might be 
 had on them, on a motion to enter a nonsuit. This 
 motion never appears to have been made, and no further 
 report of this case appears anywhere. Much impor- 
 tance cannot, therefore, be attached to it. Indeed, be- 
 tween this case and Wilson v. Coupland, there seems 
 to be no rational distinction.^ 
 
 Again, in Hodgson v. Andei*son,^ where the defend- 
 ant, who owed A. B., a debtor of the plaintiff, a sum 
 of money, at A. B.'s request promised the plaintiff' to 
 pay him what he (the defendant) owed A. B., such 
 promise was held not to be within the 4tli section of 
 the statute of frauds, for A. B.'s debt was extinguished 
 by the defendant's promise. The case of Browning v. 
 Morgan involves the same principle. There A. sold 
 goods to B., who, being unable to pay for them, trans- 
 ferred them to C, who promised A. to pay for them. 
 It was held, that the promise was not within the 4th 
 section of the statute of frauds, as B. was discharged 
 from all liability. 
 
 The cases which have now been cited abundantly, 
 illustrate the proposition that, to bring a case within 
 
 » Smitli's Merc. Law, Sth eJ. p. 45Y. = 5 D. & R. 735 ; s. c. 3 B. <fe C. 842.
 
 112 THE LAW OF GUARANTIES. 
 
 tlie statute of frauds, there must be a liabiliti/, present 
 or future^ existing on the part of some person, other 
 than the promiser. It will not have been forgotten, 
 however, that the rule we have laid down states, in the 
 alternative, that there must either be some other person 
 actually liable in the first instance, or that the creation 
 of such liability at a future time must be contemplated. 
 Hitherto we have only considered the absolute ne- 
 cessity which the rule creates that there should 
 be some actual liability by a third person. It 
 now becomes necessary to discuss the question sug- 
 gested by the terms of Rule 1, and to consider when, 
 in point of time, a liability may take its origin, and yet 
 be such as to bring a case within the statute of frauds. 
 
 Now, formerly, it was necessary that, at tlie time of 
 the making of the promise, some one should be actually 
 liahle^ in the first instance, to the promisee, and a con- 
 tract did not fall within sect. 4, if, at the time of the 
 making of the promise, the creation of such liability at 
 some future period was only contemplated, and not act- 
 ually in existence. If, therefore, the promise were made 
 before the debt, default or miscarriage of a third i)arty, 
 it was deemed an original undertaking, and, therefore, 
 not within the statute of frauds. This enactment was 
 held to apply only to promises made after the debt, de- 
 fault or miscarriage of a third party. 
 
 This distinction, whicli now no longer exists, was 
 first taken in the case of Mowbray v. Cunningham.^ * 
 There goods were delivered to A., at the request of B., 
 
 ' Sittings after Ilil. T. '. T7S, at Mansfield, in Jones v. Cooper, Cowp. 
 Guildhall, eited by Buller, J., in Mat- 227. 
 • son V. "Wharam, 2 T. K. SO, and by Lord 
 
 BroAvne Stat. Frauds, sec. 162.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 113 
 
 who said lie ivould see them paid for. Lord Mansfield 
 held, tliat, as the promise was hefore delivery of the 
 goods, it was not within the statute of frauds, because 
 at the time the promise was made there was no debt at 
 all. In Jones v. Cooper,^ Lord Mansfield, though at 
 first inclined to follow the case just cited, ultimately de- 
 cided, on the facts of the case before liim, that there was 
 a collateral promise within the statute of frauds. It is 
 right to mention, however, that there could be no doubt 
 that the promise, in Jones v. Cooper, was within the 
 statute, for it was in these words : " I Avill pay you if 
 Smith does not." But, in Mowbray v. Cunningham, 
 the words were : " If you supply goods to A. I will see 
 you paid," and the latter expression is clearly open to 
 a double construction. « 
 
 The next case which throws light upon the subject 
 under discussion is Peckham v. Faria,^ where Jones v. 
 Cooper was commented on. The facts are briefly as 
 follows : The defendant and 'One Sylva came to the 
 plaintiffs warehouse, and agreed on a parcel of goods 
 for Sylva, and the jDlaintifT asked if the defendant would 
 answer for him ; the defendant said that he would 
 guarantee the payment. Sylva came, on another occa- 
 sion, by himself, and ordered other goods, when the 
 plaintiff sent to the defendant and asked him whether 
 he would engage for Sylva. The defendant said, " You 
 may not only ship that parcel, but one, two, or three 
 thousand pounds more, andlivillpay you if he does noty 
 This ]3romise was made before the delivery of the goods 
 to Sylva. The goods were siibseqiieiitly delivered to 
 Sylva. In giving judgment, Lord Mansfield said : " Be- 
 fore the case of Jones v. Cooper I thought there was a 
 solid distinction between an undertakino; after credit 
 
 1 Cowp. 227. ^3 Dougl. 13.
 
 114 THE LAW OF GUARANTIES. 
 
 given, and an original undertaking to .pay; and that, iu 
 the latter case, the surety, being the object of the confi- 
 dence, was not within the statute ; but, in Jones v. 
 Cooper, the court was of opinion, that, wherev'er a man 
 is to be called upon only in the second instance, he is 
 within the statute ; otherwise, where he is to be called 
 upon in the first instance. Here, by the words of the 
 promise, Sylva was to be called on first, the defendant 
 undertaking to pay if Sylva did not pay. The case is 
 not distinguishable from Jones v. Cooper, and the 
 words of the statute are very strong." The distinction 
 that was drawn in Mowbray v. Cunningham, was 
 finally abolished in Matson v. Wharam.^ There the. 
 defendant asked the plaintifl: whether he was willing 
 to serve one E. C. with groceries; and, upon the plaint- 
 iif answerino' that he did not know him, the defendant 
 replied, " If you do not know Idm you know me^ and I 
 will see you paid." On the faith of this promise goods 
 were sent to R. C.'s order, and R. C. was debited for 
 the amount iu the plaintifl:''s books. R. C. making de- 
 fault, by not paying for the goods, the plaintiff sued the 
 defendant, and a verdict was given for the plaintiff', 
 subject to the opinion of the court upon the case as 
 stated. On the argument, Jones v. Cooper and Mow- 
 bray V. Cunningham were cited by the plaiutift^'s coun- 
 sel, to show that there was a recognized distinction 
 between a promise for the payment of goods for another 
 person, hefore delivery and afte7\ The court, however, 
 was clearly of opinion that that distinction had been 
 overruled, though it may be observed that, in the judg- 
 ment, no cases to this effect were cited.^ It will be 
 noticed, however, from the judgment of Buller, J., that 
 
 ' 2 T. R. 80. and Parsons v. "Walter, cited in note (c), 
 
 ^ But see Peckham v. Faria, ante, 3 Dougl. 14.
 
 OPERATIOX OF THE STATUTE OF FRAUDS, ETC; 115 
 
 he reo^rets that the authorities do not allow him to de- 
 cide hi accordance with Mowbray v. Cunningham. He 
 says, " If this were a new question, the leaning of my 
 mind wouhl be the other way ; for, Lord Mansfield's 
 reasoning, in the case of Mowbray v. Cunningham, 
 struck me very forcibly. But the authorities are not 
 now to be shaken ; and the general line now taken is, 
 that if the person for whose use the goods are furnished 
 be liable at all, any other promise by a third person to 
 pay that debt must be in writing, otherwise it is void 
 by the statute of frauds, 29 Car. 2, c. 3, s. 4."-=^- 
 
 In many cases, and particularly where, as in Birk- 
 myr v. Darnell,^ the promise precedes the liability of the 
 third person, it often becomes extremely difficult to 
 determine whether it is intended by the parties that the 
 third person should be primarily liable. In these cases 
 the nature of the contract depends on the answer given 
 by the jury to the question, " To tvliom loas credit 
 given f'' t The recent case of Mountstephen v. Lake- 
 
 ' 1 Salk. 27 ; 2 Ld. Raym. 1085. 
 
 * This is undoubtedly the rule in the United States : Cahill v. Bigelow, 
 18 Pick. 369, overruling, on this point, Perley ®. Spring, 13 Mass. 297; 
 Ex f arte Williams, 4 Yerg. 579; Tilleston ». Nettleton, 6 Pick. 509; Pea- 
 body i\ Harvey, 4 Conn. 119; Huntingdon «. Harvey, Id. 134; Newell v. 
 Ingraham, 15 Verm. 433; Cutter ®. Hinton, 6 Rand. 509; Ware «. Stephen- 
 son, 10 Leigh (Va.) 155; Noyes «. Humphreys, 11 Grat. 636; Leland ». 
 Creyon, 1 McCord, 100; Taylor v. Drake, 4 Strobh. (S. C.) 431 ;* Piickett ». 
 Bates, 4 Ala. 390; Caperton v. Gray, 4 Yerg. 563; Hall v. Wood, 3 
 Chand. 38. 
 
 t If any credit at all be given to the third party, the defendant's prom- 
 ise is collateral, and must be in writing. Cahill ». Bigelow, 18 Pick. 369 ; 
 Chase «. Day, 7 Johns. 114; Brady «. Sackiider, 1 Sandf. 514; Elder w. 
 Warfield, 7 Harr. & J. (Md.) 391 ; Conolly ». Kettlewell, 1 Gill, 260 ; 
 Larson «. Wymau, 14 Wend. 246 ; Darlington «. McCann, 3 E. D. Smith, 
 411 ; Hanford «. Higgins, 1 Bosw. 441 ; Allen v. Scarf, 1 Hilt. 209 ; Bu- 
 shee V. Allen, 31 Vt. 631; Walker «. Richards, 39 K H. 259; Dixon ». 
 Frazer, 1 E. D. Smith, 32; Steele v. Towue, 28 Vt. 771 ; Hill v. Raymond,
 
 IIG iTlIE LAW OF GUAKAMTIES. 
 
 man/ part of the judgment in which has been previously 
 cited," furnishes an apt illustration of what has just been 
 stated. It is proposed, therefore, to give a somewhat 
 lengthy report of this case. The following facts were 
 proved at the trial, which took place before Kelly, C. B., 
 at the Devon Summer Assizes, 1870: — The plaintiff had 
 been employed to construct a main sewer by a local 
 board of health, of wdiich the defendant was the chair- 
 man. Notice having been given by the board to the 
 owners of certain houses, to connect their house drains 
 with the main sewer within twenty-one days, the sur- 
 veyor of the said board, before the expiration of that 
 period, proposed to the plaintiff that he should construct 
 the connections between the house drains and the main 
 sewer. This the plaintiff' said he was willing to do if 
 the board would see him paid ; and the plaintiff, ac^ 
 cordingly, commenced the construction of the connec- 
 tions before the expiration of the twenty-one days. 
 The plaintiff' stated, in evidence, that the day on which 
 the construction of the connections was commenced, and 
 an hour previous to the commencement, he w^as leaving 
 with his carts and men, when the surveyor of the board 
 stopped him and requested him not to go awa}^, as there 
 was more w^ork to be done. The plaintiff' asked w^ho 
 was to be responsible for the payment, and the surveyor 
 answered, that the defendant was w^aiting to see the 
 plaintiff about it. The plaintiff' then had an interview 
 with the defendant, at which the following conversation 
 took place. The defendant said, " AVhat objection have 
 
 ' L. R. 7 Q. B. 191 ; s. c. L. R. 5 Q. = Aide, p. vO. 
 
 B. 613. 
 
 3 Allen, 540; Swift r. Pierce, 13 Id. 136 ; Boykin v. Dohlonde, 1 Sel. Cas. 
 Ala. 502; Bresler v. Pendell, 13 Mich. 224; Read v. Ladd, Edm. Sel. Cas. 
 (N. Y.) 103.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 117 
 
 you to making the connections \ " The plaintiff said, " I 
 have none, if you or the hoard will order the work or 
 become responsible for the payment.^' The defendant 
 replied, " Go on, Mountstephen, and do tlie work, and I 
 will see you paid." The plaintiff, accordingly, did the 
 work under the superintendence of the surveyor of the 
 board; and on 5th December, 1866, sent in the account 
 to the board, debiting them with the amount. The 
 board refused payment, alleging that they had never 
 themselves agreed with the plaintiff, or authorized any 
 officer of the board to agree with him for the perform- 
 ance of the work in question. 
 
 The plaintiff, for the first time, on the 20th Novem- 
 ber, 1869, applied to the defendant for payment of the 
 work, and (the defendant having refused to pay him) 
 commenced the action. 
 
 The first count of the declaration alleged that, in 
 consideration the ]3laintiff would do certain work for 
 the board at the request of the defendant, as and as- 
 suming to be agent of the board, the defendant promised 
 the plaintiff that he was authorized by the board to 
 make such request. That the plaintiff did the work, 
 but that the defendant turned out not to be authorized, 
 and the plaintiff was unable to make the board pay. 
 There was a second count, alleo-ino; the defendant's 
 promise to be, that he would procure a contract from 
 the board, whereby they should be bound to pay for the 
 work. The third count was the common money count 
 for work, labor, tfec. 
 
 At the trial a further count was added, alleging the 
 defendant's promise to be, that in consideration that the 
 plaintiff would do the work for the board, the defendant 
 promised to pay for the work, if the board should at any 
 time refuse to pay.
 
 118 THE LAW OF GUARANTIES. 
 
 Tlie pleas were as follows : — To the money counts : 
 Never indebted. And, to the other counts — 
 
 1. That the defendant did not promise as alleged. 
 
 2. That the plaintiff did not do the work at the de- 
 fendant's request, as alleged. At the close of the plaint- 
 iff's case, the defendant claimed a nonsuit, on the ground 
 that there was no evidence of any liability on the part 
 of the defendant. 
 
 The judge declined to nonsuit, stating his opinion 
 that there was evidence to support a count in the form 
 above given, and which he gave the plaintiff leave to 
 add. The defendant's case was then entered into, and 
 the defendant denied that any conversation of the kind 
 ' deposed to by the plaintiff had ever taken place. The 
 judge left it to the jury to say whether the conversation 
 did take place, and the jury returned a verdict for the 
 plaintiff for the amount claimed. Leave was reserved 
 to the defendant to move to enter a nonsuit, if it should 
 appear that either upon the original declaration, or upon 
 the declaration as amended, there was no evidence which 
 ought to have been left to the jury. The defendant 
 obtained a rule to enter a nonsuit accordingly, on the 
 ground that there was no evidence of original liability 
 on the part of the defendant to the plaintiff for the work 
 to be done ; or, for a new trial, on the ground that the 
 ■^erdicrt was against the evidence. The Court of Queen's 
 Bench afterwards made the rule absolute to enter a non- 
 suit, on the ground that the defendant's promise was an 
 undertaking to be answerable for the debt of another^ 
 within sect. 4 of the statute of frauds, and not being in 
 writing was' void. The Court of Exchequer Chamber, 
 however, reversed the judgment of the Queen's Bench, 
 on the ground that there Avas evidence on which the
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 119 
 
 jury might have found that the defendant agreed to be 
 primarily liable. It will be observed that, in this case, 
 the real question was, what did the plaintiff and the 
 defendant understand to be the effect of the conversa- 
 tion which passed between them ? Did the defendant 
 mean to make himself liable -to the plaintiff, whether the 
 board became so or not, or did he mean to make him- 
 self liable only in, the event of the board becoming 
 liable, and then only in the second instance, and in 
 which of these senses did the plaintiff understand the 
 promise, or, in other words, 2o ivhom did he give credit ? 
 Willes, J., in his judgment in the Exchequer Chamber, 
 thus defines the nature of the contract entered into be. 
 tween the parties in this case : " It is," he says, " a 
 bargain, therefore, by the defendant to pay for the work, 
 though it was known that there was no person liable at 
 the time, and whether a third person should become 
 liable in future or not, that is, v/hether or not there was 
 or might be a third person who could be liable for a 
 debt, or guilty of a default or miscarriage in the matter. 
 And it is only in respect of such a third person that the 
 statute of frauds applies." In the same judgment we 
 also find the following passage : — " In this case, seeing 
 that the parties knew that the board w^as not liable, and 
 that the plaintiff" would not go on unless he had the board 
 or the . defendant liable, and did not care to have the 
 defendant liable if the board was liable, the facts seem 
 to exclude, and the jury might well find that they ex- 
 cluded, the notion of the defendant becoming surety for 
 a liability, either past, present, or future, upon the part 
 of the board ; and they might look upon the defendant's 
 contract as a contract to pay, whether the board have 
 been, are, or shall be liable or not. Do that work now.
 
 12l"> TIIF. LAW OF GUARANTIES. 
 
 and you shall be paid tor that work. So that it is a 
 case of principal liability." There are also many other 
 cases to be found in the reports, in ^tliich,. just as in 
 Mountstephen v. Lakeman, it has l)een held that the 
 evidence showed a state of facts, from ^\•]lieh it might be 
 inferred, that the liabilit}-* of the defentlant was an 
 original and primary liability. Tlius, in Smith v. llud- 
 hall,^ the defendant employed a builder to erect some 
 liouses, and -gave a guaranty for a supply of materials 
 to the builder to a certain amount. Afterwards, the 
 defendant gave an order for a future supply to a certain 
 amount: more materials were, accordingly, supplied on 
 the order of the builder, and, at the trial, it was proved 
 that the defendant himself was constantly on the prem- 
 ises. Under these circumstances, it was held that it was 
 for the jury to say whether the defendant had so acted 
 as to lead the plaintiff to believe that the latter supply 
 was to be on his credit. " 
 
 A somewhat similar case is that of Edo-e v. Frost.'^ 
 There the defendant undertook in writino; that, if the 
 plaintiff would put up a certain gas apparatus in a 
 theater for one John Brunton, that he (the defendant) 
 would see the plaintiff paid for the said gas apparatus. 
 It appeared, however, at the trial, that the defendant 
 had himself given orders about the work lefore and after 
 the guaranty was given. Abbott, C. J., left it -to the 
 juiy to determine whether the defendant, though he 
 had no interest in the theater at the period in question, 
 was not one of the persons who had originally given 
 orders for the gas apj^aratus ; for, if he was, a verdict 
 
 ' 3 F. it F. 143. ' 4 D. & II. 243. 
 
 * See Hiltz v. Scully, 1 Ciuc. 555 ; .Jefteison County v. Slagee, 66 Pa. St. 
 202. ' ' •
 
 OPERATIOX OF THE STATUTE OF FRAUDS, ETC. 121 
 
 raiglit be recovered upon bis own personal liability, 
 without regard to the guaranty.^ ^' 
 
 So in Scholes and another v. Hampson and Merriott,'^ 
 the defendant Hampson having asked the plaintiffs to sell 
 him a quantity of goods upon credit, and the plaintiffs hav- 
 ing refused to let him have them, unless someone would 
 be anHwerahle for the payment^ he afterwards brought 
 with him the other defendant, who was a near relation of 
 his, but not at all connected with him in business, all of 
 which facts were well known to the plaintiffs. The 
 defendant Merriott then requested the plaintiffs to 
 let Hampson have what cotton he might want; and 
 agreed verhaUy^ that the credit should he given to them 
 jointly^ and the invoices made out in their joint names. 
 Several parcels of cotton were accordingly delivered by 
 the plaintiffs to Hampson, who from time to time made 
 payments for the same. But, becoming insolvent, this 
 action was brouo-ht a2:ainst him and Merriott for the 
 balance. Hampson had let judgment go by default, 
 and the question was as to the liability of Merriott. It 
 was objected, on his behalf, that upon these facts Mer- 
 riott could not l)e considered a partner, but was only 
 surety for Hampson's payments, and that, therefore, his 
 undertaking was for the debt of another, and void by 
 the statute of frauds as not being in writino;. And it 
 was contended that the permitting such parol promises 
 to avail would be virtually to repeal the statute. But 
 Chambre, J., overruled the objection, not thinking this 
 
 ' In this case the jury found their the persons wlio originally gave the or- 
 
 verdict for the plaintiff for the sum de- der for the work. 
 
 manded, on the common counts for work ^ Cited in Fell on Guaranties, 2d ed. 
 
 and labor and materials found, on the p. 27. 
 ground, that the defendant was one of 
 
 * See Hiltz v. Scully, 1 Cine. ooS ; Jefferson County v. Slagee, 66 Pa. St. 
 303.
 
 122 THE LAW OF GUARANTIES. 
 
 to be a case "witliiii the statute, and the case was never 
 afterwards questioned. 
 
 The same principles were acted upon in Simpson v. 
 Penton.^ There the plaiutift* introduced tlie defendant 
 to one Overston, an upholsterer, and in his presence 
 asked Overston if he liad any objection to supply the 
 defendant with some furniture, and that if he would, 
 he (the plaintiff) " would be answerable." The up- 
 holsterer, having asked the j^lainti^ how long credi^t he 
 wanted, plaintiff' replied that he would see it paid at 
 the end of six months." Overston having agreed to 
 give this credit, the plaintiff' gave liim the order, and 
 the goods were accordingly supplied. At the end of 
 six months, the defendant, not having paid the amount, 
 the upbolsterer applied to the plaintiff for payment, 
 and he paid the money. The entry in Overstou's book 
 was " Mr. Penton - per Mr. Simpson." ^ It was held that 
 this was an original and not a collateral undertaking, 
 on the ground that credit was clearly given entirely to 
 the defendant, and that the jury were warranted in so 
 finding. In this case, Bayley, B., said : " I think that 
 the expressions ' I'll be answerable,' and ' I'll see you 
 paid,' are equivocal expressions. And then we ought 
 to look to the circumstances to see what the contract 
 between the parties was. I do not say that without 
 authority; for there was a case,^ which I believe will 
 be found in the 2d volume of Douglas,^ in which the 
 Court of King's Bench said, that a contract might be 
 collateral or not, according to circumstances, and that 
 it depends upon the circumstances whether it is col- 
 
 ' 2 C. <fe M. 430. See also Dixon v. * See, however, Gordon v. Martin, 
 
 Hatfield, 2 Binij. 439. post, wliich is perhaps tlie earliest au- 
 
 * /. e., the defendant in the above thority on this point, 
 case. * Semhle, not reported anywhere. 
 
 ^ I. e., the plaintiff in tlie above 
 case.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 123 
 
 lateral or not. It was tlie case of Oldham v. Allen, 
 and was decided in Michaelmas Term, in the 24t]i of 
 Geo. 3 : there the defendant had sent for a farrier to 
 attend some horses, and said to the farrier, ' I will see 
 you paid.' The plaintiffs knew the parties, who were 
 owners of some of the horses, and made them debtors, 
 but debited the defendant for the others, whose own- 
 ers he did not know ; the court held, that the promise 
 was original, in respect to those owners whose names 
 he did not know ; but, in respect of the others whom 
 he did know, that it was collateral. In that case there 
 was a construction on the very same words, making the 
 promise either original or collateral, according to the 
 circumstances. Here it is quite clear that the goods 
 were furnished for Penton's benefit ; but it does not ap- 
 pear that he said one word by which he pledged him- 
 self, so as to give Overston a right to cail upon him. 
 Simpson was asked what time he wanted to pay. He 
 says, ' I'll see it paid in six months.' It was left to the 
 jury to say whether he was the original debtor, and 
 they found that he was. I think the jury were war- 
 ranted in that finding. My opinion is founded sub- 
 stantially on the facts of the case, and not on the 
 equivocal expressions, as I consider the words capable 
 of being explained by other circumstances. I am satis- 
 fied that, though Overston was willing to see if Penton 
 would pay, he never had a legal claim upon him but 
 upon Simpson only." ^ 
 
 Perhaps, however, one of the earliest authorities for 
 
 ' In the following cases the -words s. c. 5 Q. B. 613 ; Clancy v. Piggott, 
 
 " ni see you paid," or words almost 4 Nev. & Mann. 496 ; Watkins v. Per- 
 
 identical with these, were made use of kins, 1 Lord Raym. 224 ; Mowbray v. 
 
 by the promiser. See Birkmyr v. Dar- Cunningham, cited by Buller, J., 2 T. 
 
 nell, Salk. 27; 2 Lord IJaym. 1085; R. 80; Simpson v. Penton, 2 C. <fe M. 
 
 Matson I). Wharam, 2 T. R. 80; Bate- 430; Keate !>. Temple, B. A Pull. 158. 
 
 man ij. Phillips, 15 East, 472; Mount- See also observations of Holt, J., in 
 
 Stephen v. Lakeman,L. R. 7 Q. B. 197; Austen v. Baker, 12 Mod. 250.
 
 l--i THE LAW OF GUARANTIES. 
 
 the principles just laid down is the case of Gordon v. 
 Martin.^ There the promise was as follows : " If L. S. 
 shall go through the j^urchase (the defencLant's brother 
 having been then in treaty with the said L. S. for the 
 sale of an estate), my brother will give you a handsome 
 gratuity for the trouble and pains you shall be at in 
 transacting the affair, Avhicli I 2~)romise and assure you, 
 shall not be less than 300/. My meaning is, you shall 
 be paid when the conveyances shall be executed." 
 The whole court held, that though the promise was 
 that the defendant's brother should pay the gratuity, 
 yet it bound the defendant as much as if he had prom- 
 ised for himself; for the work and labor was at his re- 
 quest, and upon his credit. And Mr. Justice Lee said, 
 that there was a difference between a conditional and 
 an absolute undertaking, as if A. promise to pay B. 
 such a sum if C. does not, there A. is but a security for 
 C. But if A. promise that C. will pay such a sum, A. 
 is the principal debtor ; for the act done w^as on his 
 credit, and no way upon C. The statute of frauds was 
 not, it seems, directly referred to in this case. On" the 
 other hand, there are several cases in which the at- 
 tempt to render the defendant liable, as on a primary 
 and orio'inal ao-reement, has failed. And the courts 
 have held, that, ^q)on the facts of the case, the liability 
 was clearly only collateral, and there was no evidence 
 from which a primary liability could possibly be in- 
 ferred. A leading instance of this kind is the case of 
 Keate v. Temple.^ There the defendant, a first lieutenant 
 in the navy, serving on board her Majesty's ship Boyne, 
 requested the plaintiff, a tailor and slopseller, to sup- 
 ply the crew of the Boyne with clothing, at the same 
 
 ' Fitzo'. 302. - B. & PuU. 158.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 125' 
 
 time making use of the following words: — "/ 76' ^7^ 
 see you paid at the pay-taMe : are you satisfied?'''' the 
 plaintiff answered, ^^ Perfectly soP Jt appeared in the 
 evidence that the clothes w^ere delivered on the quarter- 
 deck of the Boyne; that slops were usually sold on 
 the main deck ; that defendant produced samples to 
 ascertain whether his directions had been followed ; 
 that some of the men, who said they did not want 
 clothes at all, w^ere compelled by the defendant to 
 take them; w^hile others, who did not w^ant a com- 
 plete suit, were compelled against their ^vill to take 
 what they did not want. It also appeared that some 
 time after the delivery the Boyne was burnt, and the 
 crew dispersed into different ships. The plaintiff then 
 expressed some apprehensions for himself, and was told 
 by the defendant, " Captain Gray (captain of the Boyne) 
 and I will see you paid: you need not make yourself 
 uneasy." 
 
 Lawrence, J., w^ho tried the action (which was as- 
 sumpsit for goods sold and delivered, work and labor 
 and common money counts), left it to the jury to s^y, 
 if they were satisfied on the evidence thcit the goods in 
 question were advanced on tlie credit of the defendant 
 as immediately responsible, in wdiich case the plaintiff 
 would be entitled to a verdict ; or if they believed that, 
 at the time tlie goods w^ere furnished, the plaintiff re- 
 lied on being able, through the assistance of the de- 
 defendant, to get his money from the crew, wdien they 
 ouglit to find for the defendant. The jury found a ver- 
 dict for the plaintiff. A rule nisi was then obtained 
 for a new trial, on the ground that the defendant's 
 undertaking was within the statute of frauds, section 4. 
 The rule w^as made absolute, but only on the ground 
 that the verdict was a2:ainst the wei^^-ht of the evidence.
 
 12G THE LAW OF GUARANTIES. 
 
 The court considered that, upon tlie facts, the weight of 
 the evidence went to show that credit was originally 
 ^iveu to the crew, and not to the defendant, whose ver}^ 
 position tended to negative the supposition that he had 
 made himself answerable, in the first instance^ for so 
 lar<^e a sum as the amount of plaintiff's claim. 
 
 A similar conclusion was arrived at in tlie case of 
 Rains Vt Story .^ There A. applied to B. for goods ; B. 
 asked for a reference; A. referred him to C. C, on be- 
 ing applied to, inquired the amount of 4he order, and 
 on what terms the goods were to be furnished, and, on 
 being told, said, " You may send them, and IHl take 
 care that they are paid for at the time^ He was after- 
 wards written to, to accej^t a bill for the amount, to 
 which he replied, that he was not in the habit of ac- 
 cepting bills, hut that the money would he paid ivhen 
 due. After this, B., the seller, wrote to C. about the 
 goods, and spoke of them in his letter as goods which 
 C. had " guaranteed^'' and the attorney of B.'s assignees 
 (when B. had become bankrujit) wrote to A. for the 
 m<5ney, and threatened process ; but this letter was a 
 circular, written in pursuance of a list made out for 
 him by B., and without any knowledge of the circum- 
 stances under which the debt was contracted. It was 
 held, that on this evidence C. was not primarily liable, 
 but only as a guarantor of the debt of A.^^ 
 
 '3 C. <fe p. 130. 
 
 * The case of Tilleston v. Nettleton (G Pick. 509), which has been al- 
 ready frequently referred to, was similar to this. In that case, the plaint- 
 iff, an innkeeper, had furnished a dinner for a public celebration, under 
 the direction of a committee, of which the defendant was a member. It 
 was the understanding that each person should pay ibr his own dinner; the 
 committee were to incur no personal liability. Among those who attended 
 the dinner was a military company, of which the defendant was captain. 
 While the servants of the plaintiff were collecting the pay, the defendant
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 127 
 
 To a like effect is tlie case of Anderson v. Hayman.^ 
 There, the plaintitT's traveler, at the request of the de- 
 fendant, wrote to the plaintiff, requesting hi ni to supply 
 the defendant's son with goods, stating that the de- 
 fendant would be answerable for the payment of the 
 money due for the goods, as far as 800/. or 1,000/. went. 
 The defendant's son was debited in the plaintift^'s books, 
 and, being applied to for payment, wrote to say that 
 lie had "expected a twelvemonth's credit, and added: 
 " I shall, at this rate, make you remittance for the dif- 
 ferent parcels as they come due." The son failed, and 
 the defendant was accordingly sued for the value of t|je 
 goods. The declaration contained seven counts, wliich 
 were as follows: — The first was on an agreement by 
 the defendant to pay, tfec, in consideration that the 
 plaintiff' would sell the goods to his son ; the second 
 was on a quantum meruit ; the third was for goods sold 
 and delivered to the son at the request of the defendant ; 
 the fourth was on a quantum meruit j the fifth was 
 
 ' 1 H. BI. 120. 
 
 told them that they need not call upon the members of the military com- 
 pany, as he would be responsible for them. Held that the defendant's 
 promise was collateral and within the statute of frauds ; and that the mere 
 forbearance to collect pay for the dinner from the persons eaMng it, al- 
 though it might be a good consideration for a promise to pay for it by an- 
 other' person, does not constitute such an original contract as would be 
 valid without a note in writing. In order to make a promise collateral, 
 the party, for whom the promise is made, must be liable to the party to 
 whom it is made. Downey «. Hinchman, 35 Ind. 453; Boykiu v. Dohlonde, 
 37 Ala. 577; Allen v. Scarff, 1 Hilt. 209, In a case where the principal 
 object of the promissor is not to be surety for another's debt, but to sub- 
 serve some purpose of his own, his promise need not be in writing, al- 
 though incidentally in performance it has the effect of paying another's 
 debt. Lemmon v. Box, 20 Tex. 829 ; Clay v. Walton, 9 Cal. 323. An 
 agreement with a debtor, that he is to pay his debt to a third person, is 
 not within the statute of frauds. Tibbetts v. Flanders, 18 N. H. 384.
 
 128 THE LAW OF CUAUANTIES. 
 
 for monev paid to the use of the defendant ; tlie sixth 
 was for goods sold and delivered to the son on a prom- 
 ise* by the defendant to see the plaintift* paid, to the 
 amount of SOOl. ; the seventh was the same promise on 
 a quantum meruit. The defendant ijleaded the general 
 issue. Heath, J., who tried the cause, directed tbe jury 
 whether the plaintiff gave credit to the defendant aloney 
 or to him, together with his son, telling them that, in 
 the former case, they would find a verdict for thfe plaint- 
 iff; in the latter, for the defendant, being of opinion 
 that, if any credit was given to the son, the promise of 
 tlj^e defendant, not being in writing, was void by the 
 statute of frauds. A verdict was found for the defend- 
 ant. xV rule was obtained to show cause why this ver- 
 dict should not be set aside, and a new trial granted. 
 Ultimately this rule was discharged, as the court was 
 clearly of opinion that this j^romise, not being in writ- 
 ing, was void by the statute of frauds, as it aj^peared 
 from the evidence that credit was given to the defend- 
 ant's son as well as to the defendant. The manner in 
 which the transaction is entered in the plaintiff's books 
 often has a great effect in determining- to whom credit 
 was originally given, and so in determining whether de- 
 fendant's liability is original or not."' 
 
 Thus, in Austen v. Baker,^ which was decided about 
 
 ' 12 Mod. 250. 
 
 ='■■ In Conkey v. Hopkius (17 Johns. R. 113), the jilaintiff subscribed to 
 pay the trustees of a religious society a certain sum annually, and the de- 
 fendant, in consideration of $25, agreed, verbally, to indemnify the 
 plaintiflF against any claim arising from his subscription. The plaintiflf be- 
 ing sued for his subscription, and a judgment recovered against him, sued 
 the defendant on his verbal agreement of indemnity for damages. Held 
 that the agreement was valid and not within the statute, the defendant not 
 being bound to the trustees. See, also, Chase v. Day, IT Johns. R. 114; 
 Leonard v. Vredenburgh. 8 Id. 29.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 129 
 
 the year 1796, we read that, assiuiipsit having been 
 brought against Baker, upon a promise supposed to 
 be made by liira to pay for goods delivered by the 
 plaintiif to A., Holt, C. J., took this difference : " If 
 B. desire A. to deliver goods to C, and promise to see 
 him paid, there assumpsit lies against B., though, in 
 that case, he said at Guildhall, he always required the 
 tradesman to produce his books, to see whom credit 
 was given to. But if, after goods delivered to C. by A., 
 B. says to A., ' You shall he paid for the goods! it will 
 be hard to saddle him with the deV)t." 
 
 So, also, in the more modern case of Stow v. Scott,^ 
 it was held that, when a tradesman makes out an ac- 
 count for goods in the name of a particular person,' 
 it must be taken that they were furnished on the 
 credit of such person, unless it be shown, by un- 
 equivocal evidence, that the credit was, in fact, given to 
 another. 
 
 Moreover, *the question, " To whom was credit 
 given ? " is not an infallible test by which to discover, 
 in all cases, whether or not the promise falls within the 
 4th section of the statute of frauds. For sometimes it 
 happens that credit is entirely given to the promiser, 
 and yet the promise is within the 4tli section of the 
 statute of frauds. This is the case whenever the j)romise 
 has not the effect of discharging the original dehtor. 
 
 Thus, in Barber v. Fox,^ where A. promised an at- 
 torney that, if he would continue to act for B. in cer- 
 tain legal proceedings, he would pay him whatever was 
 to be paid, it was held that the 4th section of the stat- 
 ute of frauds applied. Lord Ellenborough, in giving " 
 judgment, said : "This was the inchoate business and 
 
 H C. (fe p. 241. ' 1 Stark. 270. 
 
 9
 
 130 THE LAW OF GUARANTIE>5. 
 
 (lel)t of another, and if the defendant had promised in 
 writing, he would have made liimself liable; without a 
 promise in writing, he is not liable."'' 
 
 Rule IL — The 'promise must he made to the creditor^ 
 i. e., to the person to lohoin another is already, or is there- 
 after to hecome, liahle. 
 
 It is now quite clear that a promise to answer for 
 the debt, default or miscarriage of another person, to 
 come within the 4th section of the statute of fraudf^ 
 must be made to the person to whom another is al- 
 ready, or is thereafter to become, liable.^ f This was 
 first decided in EastAvood v. Kenyon.^ There, the 
 plaintiff was liable to a Mr. Blackburn on a promissory 
 note, and the defendant, for a valid consideration, pt om- 
 ised the plaintiff to ])ay and discharge the note to 
 Blackburn. It was held that, as the promise was made 
 to the debtor, and not to the creditor, the statute did 
 not ^pply. Lord Denman, C. J., in the course of his 
 judgment in this case, said: "If the promise had been 
 made to Blackburn, doubtless the statute would have 
 applied; it would then have been strictly a promise to 
 
 ' Per Tarke, B.,inHargreavest'. Par- ' 11 A. & E. 438; 3 P. <fe D. 276; 4 
 
 SODS, 13 M. k V\". 5G1. Jur. 1081. 
 
 * Taliaferro -c. Robb, 2 Call (Va.) 217 ; Pratt v. Humphrey, 22 Cmn. 
 317 ; Harrington n. Rich, 6 Verm. 6GG ; and cases cited in note *, page 115. 
 
 t Colt V. Root, 17 Mass. 229 ; Mersereau v. Lewis, 25 Wend. 243 ; Weld 
 r. KJchols, 17 Pick. 538; Barker i\ Bucklin, 2 Denio, 45; Hardesty ». 
 Jones, 10 Gill & J. (Md.) 404 ; Pratt t. Humphrey, 22 Conn. 317 ; Preble 
 ■p. Baldwin, 6 Gush. (Mass.) 549; Pike r. Brown, 7 Id. 133; Alger r. Sco- 
 ville, 1 Gray (Mass.) 391; Flcmm v. Wliitmore, 23 Mo. (2 Jones) 430; 
 Fisk ». McGregory, 34 N. H. 414; Soule r. Albee, 31 Vt. 142 ; Aldrich v. 
 Ames, 9 Gray (Mass.) 76 ; North v. Robinson, 1 Duval (Ky.) 11 ; Howard 
 v. Coshow, 33 Mo. 118; Moriu i\ Martz, 13 Minn. 191; Rogers v. Knee- 
 land, 13 Wend. 114.
 
 OPEP.ATION OF THE STATUTE OF FRAUDS, ETC. 131 
 
 answer for the debt of another ; and the argument on 
 the part of the defendant is, that it is not less the debt 
 of another, because the promise is made to that other, 
 viz., the debtor, and not to the creditor, the statute not 
 having in terms stated to whom the promise contem- 
 phited by it is to be made. BiU, upon Gonsideration^ 
 ive are of opinion that the statute applies only to prom- 
 ise's made to the person to tohom another is answerahleP ^ 
 So, also, in the case of Reader v. Kingham,^ it ap- 
 peared that one Malins had recovered a judgment in the 
 county court against one Hitchcock for 34^., debt and 
 costs. A warrant had been obtained for the committal 
 of Hitchcock to jail for thirty days, and placed in the 
 hands of the plaintiff, Header, who was bailiff of the 
 county court. Though the debt and costs exceeded 
 34/., the bailiff appears to have been instructed by 
 Malins to accept 17/. in satisfaction. The bailiff being 
 about to ari'est Hitchcock, Kingham verbalTy promised 
 the bailiff (plaintiff") that, if. he would abstain from ex- 
 ecutino; the warrant, he would, on the followino; Satur- 
 day, either pay the 17/. or surrender Hitchcock. The 
 money not having been paid, and Hitchcock not hav- 
 ing been surrendered, the bailiff brought an action to 
 recover the 17/. On the argument, it was conceded 
 that the arrest and imprisonment of Hitchcock, under 
 the warrant, would not have operated to discharge the 
 debt; but it was held, that, inasmuch as the debt was 
 due to Malins from Hitchcock, and as the promise was 
 made to Keader (the bailiff), that the statute of frauds 
 did not apply to the case, and that, therefore, the de- 
 fendant was liable on his promise to the plaintiff', 
 
 ' Gregory v. Williams, 3 Meriv. 582, ty, though it was decided on other 
 is also an instance of a pi-omise mnde to grounds. 
 a debtor to pay his debt to a third par- ''ISC. B. i^. S. 344.
 
 J 32 THE LA'SV OF GUARANTIES. 
 
 tliono-li it was not in writinc:. Another instance of tlie 
 same doctrine is afforded by tlie case of Hargreaves v. 
 Parsons.^ In tliat case the defendant and one Parker 
 agreed for the sale by Parker to the defendant of the 
 ''put or. call" of fifty foreign railway shares at a certain 
 price per share premium, at any time on or before the 
 18th February, 1844. Before that day the defendant 
 agreed to resell the option to the plaintiff and to 
 guarantee the performance of the agreement by Parker. 
 On the 16th February the plaintiff' "called" the shares, 
 but it was at the same time verhaUy agreed between 
 him and the defendant and Parker that they should be 
 delivered by Parker to the plaintiff' not on the 18th 
 February, but on the 2d March, at Paris. It was held, 
 that this was not an agreement by the defendant to be 
 answerable for the default of Parker. Parke, B., in his 
 judgment, , says : ^'- TJie statute applies only to promises 
 made to tlie persons to wliom another is already or i.'s to 
 become answerahle. It must be a promise to be an. 
 swerable for a debt of or a deffuilt in some duty by 
 that other person towards the promisee. This was de- 
 cided, and no doubt rightly, by the Court of Queen's 
 Bench, in Eastwood y. Kenyon^ and in Thomas v. Cook.^ 
 In this case Parker had not contracted with \\iq plaint- 
 iffs nor was it intended that he should ; there was no 
 privity between them ; the non-performance of Parker's 
 contract with the defendantv^oxi}^^ be no default towards 
 the plaintiff, and, consequently, the undertaking by the 
 defendant was no promise to answer for the default or 
 miscarriage of Parker in any debt or duty towards the 
 plaintiff. It was an original promise that a certain 
 thing should be done by a third person." 
 
 M3M. <feW. 561. '8B.& 0.728. 
 
 " 11 A. <feE. 438.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 133 
 
 The case of Thomas v. Cook^ proceeded upon the 
 same priDciple. There it had become necessary for 
 Cook (who was a debtor of one Morris) to find sure- 
 ties. He applied to the plaintiff to join Iiini in a bond 
 and bill of exchange, and undertook to save him harm- 
 less. It was lield^ that the promise of the defendant 
 was not within the 4th section of the statute of frauds. 
 Btiyley, J., in his judgment, says: " Here the bond was 
 given to 'Morris as the creditor, but the promise in 
 question was not made to him. A j)romise to him 
 \vould have been to answer for the default of the 
 debtor." Parke, J., said, " If the plaintiff, at the request 
 of the defendant, had paid money to a third person, a 
 promise to repay it need not have been in writing, and 
 this case is, jn substance, the same." 
 
 The case of Green v. Cresswell ^ and Cripps v. Hart- 
 noil,^ when read together, also well exemplify the rule 
 laid down by Baron Parke in Hargrcaves v. Parsons, 
 ante^ that a promise to be within the 2d clause of the 
 4th section of the statute of frauds, " must be a promise 
 to be answerable for a debt of or a default* in some 
 duty by that other towards the promisee." 
 
 In Qreen v. Cresswell * the plaintiff became bail for 
 another person, in a civil case, at the request of the de- 
 fendant, in consideration of the defendant promising to 
 indemnify the plaintiff against the consequences. It 
 was held, that no action lay on the defendant's promise, 
 
 ' Supra. case, the bail bond was weyer ea;ecMfe(/ by 
 
 * 11 A. <fe E. 453. It is stated, the defendant, who was, therefore, nev- 
 
 in Chitty on Contracts, 9th ed., er acUmlhj hail for the third person. 
 
 p. 484, note {q), that the case of The case of Jariuain v. Algar has al- 
 
 Jarmain v. Algar, 2 C. & P. 249, ready been commended on, ante, p. 8S. 
 
 conflicts with Green v. Cresswell. ^ (In Cam. Scac), 4 B. & S. 414, re- 
 
 But, it is submitted, that it is not the versing the decision of the Q. B. in 2 
 
 case; for, whilst in the /«<<er case, the bail B. & S. (i?*?. 
 
 bond was actually signed, in %\\q former ■* See note 2, -mjn'a.
 
 134 THE LAW OF GUARANTIES. 
 
 as it was not in writing. In Crl])ps v. Ilartnoll/ on 
 the contrary, wliure the plaintiif, at the request of the 
 defendant, entered into a recognizance of bail for the ap- 
 pearance of a third person to answer a m?/2ma/ charge, 
 and the defendant, in consideration thereof, promised to 
 indemnify the plaintiff against all liability and from all 
 costs, damages and expenses in respect of the same ; it 
 was held, that the defendant's promise was not within 
 the 4th section of the statute of frauds. The distinction 
 between these two cases is well pointed out by Wil- 
 liams, J., in his judgment in the case last cited: "I 
 ought," he says, " to remark, that I do not deem it at all 
 necessary for us to say, whether the case of Green v. 
 Cresswell is good law or not, but I think there is a dis- 
 tinction between the recognizance of bail ii:^ a civil suit 
 and the recognizance given for the appearance of a de- 
 fendant in a criminal proceeding; whether, in a case 
 where the plaintiff becomes bail for a stranger in a 
 .c^^'^^ suit, there is a duty, as between the defendant in 
 the action and the surety, that he will render or pay 
 the debt, 'so as to reconcile the case of Green v. Cress- 
 well with the doctrine that the vStatute applies only to 
 proniises made to a person for whom anbther isiinswer- 
 able, I think that, where bail is given in a criminal 
 suit, there is certainly no debt or duty which can be 
 considered as due to the surety from the party on 
 whose behalf the recognizance is given. The statute, 
 therefore, cannot Ije held to apply to such a case with- 
 out overi'ulinsj the doctrine to Avhich I have alluded, 
 whicli was not disputed in argument before us, and is 
 established })y the cases of Eastwood v. Kenyon and 
 Hargreaves v. Parsons. In Thomas v. Cook it may be 
 
 ' 4 B. <fe S. 414.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 135 
 
 obsei'ved, that, altliougli Bayley, J., puts the case upon 
 the ground that the 4th section of the statute of frauds 
 does not apply to a promise to indemnify, Park, J., aft- 
 erwards Lord Wensleydale, who was the only other 
 judge in that case, certainly does not put it at all upon 
 that ground." 
 
 It remains to notice that there are also one or two 
 cases which, although not decided upon this ground, 
 may be supported upon the principle that a promise to 
 answer for auo!.her's debt, default or miscarriage, is not 
 within sect. 4 of the statute of frauds, unless it be 
 made to the creditor himself. The case of Castlino" v. 
 Aubert^ is an i«nstance of this kind. There, the plaint- 
 iff, being a broker, had, as such, a lien upon certain poli- 
 cies of insurance for acceptances he had given for* A. 
 The defendant, who was also a broker, being employed 
 by A. to conduct his insurance business, was anxious 
 to procure the policies in order to collect, for his princi- 
 pal, the moneys due thereon, and, accordingly, induced 
 the plaintiff to part with his lien on the said policies by 
 verhally promising to provide for the plaintiff's ac- 
 ceptance at maturity. It was held, that the defendant's 
 promise was not within the 4th section of the statute 
 frauds. Now, here, it will be observed, that, as- first 
 pointed out by Mr. Throop, in his work on the Validi- 
 ty of Vei'bal Agreements,^ the promise of the defendant 
 was made to one, who, as acceptor, was a principal 
 debtor, and this reason is, of itself, sufficient to exclude 
 the case from the operation of the statute. It is proper 
 to observe, however, that the case is put upon other 
 grounds in the judgment, which rests thfe decision upon 
 the principle that the 'transaction was to be considered 
 
 ' 2 East, 325. » See p. 389.
 
 136 THE LAW OF GUARANTIES. 
 
 as a piu'cliase l)y the defendant of the plaintiff's inter- 
 est in the policies — a promise by the defendant to pay 
 what the plaintiff would be liable to pay, if the plaint- 
 iff would furnish him with the means of doinof "so — 
 and that it, therefore, fell within the decisions which 
 have before been considered.^ * 
 
 A similar case is Love's case,^ where the sheriff had 
 taken goods in execution upon a fi. fa., and a promise 
 to the officer, by a third party, to pay him the debt, in 
 consideration that he would restore them, was held to 
 be an original promise not within the statute. This 
 case, like Castling v. Aubert, just cited, may be sup- 
 ported upon the ground that tlie promis^ was not made 
 to a person to whom another was already liable, and, 
 thef-efore, fell within Eastwood v. Kenyou ^ and Har- 
 greaves v. Parsons,* Although it may also be placed 
 upon the ground that, after the seizure, the goods, and 
 not the execution debtor, were liable for debt, and that 
 the decision consequently fell w^ithin the jDrinciple of a 
 class of cases which have before been discussed.^ f 
 
 ' See ante, p. 84. * 13 M. &. W. 561. 
 
 - 1 Salk. 23. 'See ante, pp. 80, 81. 
 
 Ml A. & E. 438. 
 
 * Wliere the plaintiff had obtained the account book of his debtor as 
 a pledge to secure his debt, and the defendant, in consideration of his de- 
 livering up the book to one B;, to enable B. to collect the demands, ver- 
 bally i)romised the plaintiff to pay him the amount of his debt if B. 
 should not collect enough for the purpose, held that the delivery of the 
 book to B. on the defendant's request operated as a delivery to the de- 
 fendant himself. Allen v. Thompson, 10 N. H. 32 ; see Gardnier v. Hopkins, 
 5 Wend. 23; French v. Thompson, 6 Vt.54; Olmstead v. Greenly, 18 
 Johns. (K y.) 12, 13; Hindman v. Laugford, 3 Strobh. (S. C.) 207, and 
 Wolff V. Koppel, 5 Hill (N. Y.) 458. And where the promise was to the 
 purchaser of personal property subject to mortgage, to pay the mortgage 
 note, the mortgagor continuing liable, such promise was held to be within 
 the statute. Doolittle v. Naylor, 2 Bosw. (N. Y.) 206. 
 
 t See page 105, note *.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 137 
 
 Rule III. — There miist he an ahsence of all liahility 
 on the 2^art of the ])roniiser {the surety^, except such as 
 arises from his expi'ess 'proini^e.^' 
 
 The decision of the Court of Common Pleas in 
 Fitzgerald v. Dressier ^ expressly recognizes the exist- 
 ence of a general rule to the effect here set out. Be- 
 fore that decision, there had been, as we shall presently 
 see, numerous cases, the decisions in which are in 
 truth to be referred to the existence of the rule; but 
 the rule itself never seems to have been before pro- 
 pounded in terms. Fitzgerald v. Dressier was as fol- 
 lows : A. sold goods to B. through a broker, which goods 
 B. afterwards sold to C. through the sauie broker. C. 
 was under terms to pay B. for the goods, before the 
 time fixed for payment from B. to A. In order to in- 
 duce A. to hand over the goods before the day fixed for 
 payment of the goods by B., C. promised A. that B. 
 should pay on the day named. A. accordingly parted 
 with his vendor's lien. It was lield, that C.'s promise 
 was not within the 4th section, because at the time of 
 C.'s promise the goods were the property of C, subject 
 to A.'s lien for the j^rice. Cockburn, C. J., in deliver- 
 ing judgment, said: " We are all agreed that the case is 
 
 "7 C. B. N. S. 374. 
 
 * " The actual indebtedness must be sLifted. to a new promiser, so 
 tliat, as between him and the original debtor, he must be bound, to pay 
 the debt aa his own, the latter standing to him in the relation of surety." 
 Sill, J., in Kingsley v. Balcome, 4 Barb. (N. Y.) 131. And the Supreme 
 Court of the United States has held, that whenever the main purpose and 
 object of the promiser is not to answer for another, but to subserve some 
 pecuniary or business purpose of his own, involving either a benefit to 
 himself or damage to the other contracting party, his promise is not 
 within the statute, although it may be, in form, a promise to pay the debt 
 of another, and although the performance of it may incidentally have the 
 effect of extinguishing that liability. Emerson v. Slater, 22 How. (U. S.) 
 28. Sec page 139, note *. 
 •
 
 138 THE LAW OF GUARAiNTIES. 
 
 not within tbe statute of frauds. The law upon this 
 subject is, I think, correctly stated in the notes to Forth 
 V. Stanton, 1 Wms. Sauud. 211, e, where the learned 
 editor thus sums up the result of the authorities : 
 ' There is considera])le difficulty in the subject, occa- 
 sioned perhaps, by unguarded expressions in the reports 
 of the different cases ; but the fair result seems to be, 
 that the question whether any particular case comes 
 within this clause of the statute (s. 4) or not depends, 
 not on the consideration for the promise, but on the 
 fact of the original party remaining liable, coupled 
 with the absence of any liability on the part of the de- 
 fendant or his property, except such as arises from 
 his express promise.' I quite concur in that view of 
 tbe doctrine, provided the proposition is considered 
 as embracing the qualification at the conclusion of 
 the 2:)assage ; for though I agree that the considera- 
 tion alone is not the test, but that the party taking 
 upon himself the obligation ujoon which the action is 
 brought, makes himself responsible for the debt or 
 default of another, still it must be taken with the quali- 
 fication stated in the note above cited, viz., an absence of 
 prior liability, on the part of the defendant or his prop- 
 erty ; it being, as I think, truly stated there, as the result 
 of the authorities, that if there be something more than 
 a mere undertaking to pay the debt of another, as where 
 the property, in consideration of the giving up of which 
 the party enters into the undertaking, is in point of fact 
 his own, or is property in which he has some interest, 
 the case is not within the provision of the statute, which 
 was intended to apply to the case of an undertaking to 
 answ^er for the debt, default or miscarriage of another 
 where the person making the promise has no interest in 
 the property which is the subject of the undertaking.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 139 
 
 I there fore agree with my learned brothers that this 
 case is uot within the statute of frauds." 
 
 The I'ule, in the terms in which it is thus set forth 
 is, it is submitted, the true rule, and one which will on 
 examination l)e found to support a large number of 
 cases, which without it seem difficult to understand, and 
 some of which, in the absence of the explanation afforded 
 by it, appear to conflict with each other.* But it is 
 
 * The words of tlie statute itself, in their simple meaning, seem to give 
 us the true rule. It contemplates a promise to ansicer for another's de])t — a 
 promise /b/- that 2iur pose ^ a mere guaranty— and it never meant that a man 
 should set it up as a pretext to escape from the performance of a valid 
 verbal obligation of his own, because in performing that, the discharge of 
 a third party's debts was incidentally involved. Browne Stat. Frauds, 
 sec. 212; Nelson v. Boynton, 3 Met. (Mass.) 396; Alger v. Scoville, 1 Gray 
 (Mass.) 391; Jefferson v. Hunt, 3 Allen (Mass.) 433; King^ey v. B:il- 
 come, 4 Barb. 131; Chandler v. Davidson, 6'Blackf. (lad.) 367. If the 
 promise of the new promisor at the bottom is virtually a promise to pay 
 his own debt in a particvilar way, or if by paying the debt he is really dis- 
 charging a liability of his own, it need not hi in writing. And so where 
 the defendant orally promised to pay a contractor for building a bridge 
 on the line of a railroad, which the railroad company had employed him to 
 build, but had neglected to pay for as the work progressed, as they had 
 contracted to do, the U. S. Supreme Court held that as the defendant was 
 a large stockholder in the company, and had leased to it iron to the value 
 of $68,000, and had taken an assignment of the earnings and proceeds of 
 the road to that amount as security, that he was in fact promising to dis- 
 charge an obhgation of his own, and that the statute did not apply. 
 Emerson v. Slater, 22 How. (U. S.) 214. See also Besshears v. Rowe, 46 Mo. 
 501 ; Harris v. Young, 40 Ga. 65, where the promisor stipulated that the 
 goods should be charged to him. FuUam v. Adams. 37 Vt. 391 ; Connor 
 V. Williams, 2 Rob. (N. Y.) 46; McLaren v. Hutchinson, 22 Cal. 187; Ciy- 
 mer v. De Young, 54 Penn. St. 118; Foixl v. Fmney, 35 Geo. 258; Sanders 
 V. Clason, 13 Minn. 379; Furbish v. Goodnow, 98 Mass. 396; Hearing v. 
 Dittman, 8 Phil. 307 : Allwin v. Garberick, Id. 637 ; Carrothers v. Connoly, 
 1 Mon. T. 433 ; EUenwood v. Fults, 63 Barb. (K Y.) 321 ; McCreery v. 
 Van Hook, 35 Tex. 631; Howland v. Aitch, 33 Cal. 133; Wyman v. 
 Goodrich, 26 Wis. 21; Hedges v. Strong, 3 Oreg. 18; Ludwick v. Watson, 
 Id. 256 ; Stewart v. Hinkle, 1 Bond, 500 ; Hiltz v. Scully, 1 Cine. (Ohio) 
 , 555, and also Putney r.Faraham, 27 Wis. 187. Also Browne Stat. Frauds,
 
 140 
 
 THE LAW OF GUARANTIES. 
 
 only riglit to observe tluit, in many cases which it is 
 submitted are really illustrations of the present rule/ 
 and in some others also,^ the reason given for their ex- 
 ception from the operation of the statute of frauds is, 
 because there was a new consideration arising between 
 the plaintiff and defendant, or, as it is sometimes put, 
 because the consideration was an advantaire to the de- 
 fendant rather than to a third party. Now, it is humbly 
 submitted, that though these cases are rightly decided, 
 yet that the test suggested by them for ascertaining 
 whether a case falls within that portion of the statute 
 of frauds relating to guaranties or not, is by no means 
 satisfactory. For, if you adopt as a test the question, " Is 
 there a new consideration arising between the creditor 
 and the^3romisor?" or the question, "Is the considera- 
 tion an advantage to the defendant rather than to a 
 third party?" you gfve rise to great misconception. It 
 either leads to the supposition that a promise to be 
 answerable for the debt, default or miscarriage of an- 
 other person, requires no consideration at all to support 
 it ; or to the equally erroneous supposition, that the 
 consideration for such a promise 7niist be an advantage 
 to the promiser. Besides, either of the above-mentioned 
 tests concentrates the attention upon the consideration iov 
 the promise, instead of upon the promise itself; and what- 
 ever formerly may have been the rule, it is quite clear 
 now that, to determine whether or not a case falls mthin 
 the 2d clause of the 4th section of the statute of frauds, 
 
 ' See Iloulditch v. Jlilne. 3 Esp. 86; « See Edwards v. Kelly, 6 M. & S. 
 
 Walker v. Taylor, 6 C. & P. 652 ; Wil- 204 ; Tomlinson v. Gill, Amb. 330, 
 liams V. Leper, 2 Wils. 308; Thomas v. 
 Williams, 10 B. <fe C. 664. 
 
 sec. 214, et seq., Avhere this class of cases is examined and rules for the ap- 
 plication of this principle carefully laid down.
 
 OrERATION OF THE STATUTE OF FRAUDS, ETC. 141 
 
 the question to be asked is, "What is the i^romise? not 
 what is the consideration for snch promise ? " ^ 
 
 The only case in which the consideration can affect 
 the terms of the promise is, where the consideration is 
 the extinguishment of the liability of the original party. * 
 
 It will be best to consider under difterent heads 
 the various cases which it is submitted really fall with- 
 in the rule now under consideration, but in which an- 
 other and different reason for their being outside the 
 statute of frauds was given by the judges who decided 
 them. The first class of cases of this kind are those in 
 which a lien or some similar security has been given up 
 in consideration of the defendant's promise. A good 
 instance of this sort is afforded by the case of Walker 
 V. Taylor.^ There one of the partners of a firm of 
 distillers having died, his widow deposited with the un- 
 dertaker of her husband's funeral, the beer and spirit li- 
 censes of the house, as security for the payment of his bill. 
 Being in want of these licenses, the survivinf*- partner 
 promised the undertaker that, if he would give them 
 up, he would pay his bill for the fmieral. It was 
 held, that the undertaker, having given up the licenses 
 to the surviving partner, might recover his bill a^-ainst 
 him, although the widow was his original employer, 
 and althouo-h he had made out his account charoiuo- 
 the administrator as his debtor. On its beine suffffested 
 that tj^e above promise of the surviving partner to 
 the undertaker was to pay the debt of another, Tindal, 
 C. J., said, "You mean under the statute of frauds. 
 But it is a new contract, under a new state of cir- 
 
 ' 6 C. (k P. 652. • Forth v. Stanton. See also Smith on 
 
 ' See also observations on this sub- Contracts, 5th ed. p. 101 ; but see Chitty 
 ject in Wms. Saund. (last ed.), note to on Contracts, 9th ed. p. 487. 
 
 * Note *, page 139.
 
 142 TIIK LAW OF GUARANTIES. 
 
 cumstances!. It is not ' I will pay if the debtor cannot ;' 
 but it is, ' In considei'ation of that which is an advan- 
 ta2:e to me, I will pay you this money.' There is a 
 whole class of cases in which the matter is excepted 
 from the statute on account of the consideration aris- 
 ing immediately between tlie parties. It is a new con- 
 tract; it has nothing whatever to do with the statute 
 of frauds at all."^ In this case, also, the defendant, be- 
 ing part owner of the property which formed the sub- 
 ject of the lien, was liable independently of his prom- 
 ise. The cases of Gull v. Lindsay,^ and Clancy v. Fig- 
 got,^ seem at first sight to conflict with Walker v. Tay- 
 lor, supra^ and with the case of Iloulditch v. Milne 
 (which has been cited at a previous page).'^ It is, 
 however, submitted that these cases are easily reconcila- 
 ble when viewed by the light of the explanation which 
 Rule III affords. In Gull v. Lindsay, the plaintiff (an 
 agent) was employed to procure charterers for a ship, 
 on the terms of paying himself, out of the freight which 
 he was to receive for that purpose. Before the freight 
 was earned the ship changed owners, and the new own- 
 ers being anxious to obtain possession of the ship, the 
 defendants, who were the brokers of the new owners, 
 promised plaintiff that if he would abandon his right 
 of receiving the freight, they, the defendants, would 
 pay him his said commission. It was held, that this 
 was an agreement to answer for the debt of another, 
 within the statute of frauds. Pollock, C. B., in giving 
 the judgment of the court making the rule absolute 
 to set aside a verdict which had been entered for the 
 plaintiff, and to enter a nonsuit or verdict for the de- 
 
 ' See Chitty on Contracts, 8th ed. p. " 4 Exch. 45. 
 
 478, for observation on this case, which, ' 4 Nev. & Mann. 496. 
 
 however, is not repeated iu the 9th * See ante, p. 78, wliere the case is 
 
 edition. discussed, under Rule I.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 143 
 
 fendant {inter alid)^ said : " We think tliat tlie de- 
 fendant's counsel were right in saying tliat this con- 
 tract was a contract made to pay the debt of another, 
 within the statute of frauds. It was not a case of 
 transfer of liability, as if A, had agreed to accept C, 
 a debtor of B., as his debtor, in lieu of him. It is 
 plain that, although the defendants agreed to pay the 
 plaintiff, yet the debt to him still remained due from the 
 owners ly tchom he was retained. It was, therefore, 
 necessary that the consideration should appear in 
 writing, signed by the defendants ; and the considera- 
 tion we have already stated is a very different one 
 from that declared on." 
 
 In Clancy v. Piggott,^ the declaration in assumpsit 
 stated, that A. owed the plaintiff bl.. and that the plaint- 
 iff had a lien on goods of A.; that the defendant, in 
 consideration that the plaintiff" would abandon such 
 lien and restore such go.ods to A., promised to see him 
 paid the said bl. within three months. Averment, that 
 plaintiff abandoned his lien. The plea alleged that 
 this was a promise within the statute of frauds, and 
 that there was no agreement in writing stating the con- 
 sideration. It was held, that the promise was clearly 
 within the meanino; of the statute of frauds. Now, it 
 it subndtted, that the two cases just cited do not in re- 
 ality, and when explained by Rule III, at all conflict 
 with the authorities previously mentioned. For in the 
 two cases just cited the persons making the promises 
 were not the owners of the property which formed the 
 subject of the lien, and were not under any liability 
 whatever independently of the promise ; whei'eas, in 
 the other cases, the promises were made by persons 
 
 ' 4 Nev. & Mann. 496,
 
 144 THE LAW OF GUARANTIES. 
 
 who, being sole or part owners of tlie property subject 
 to the lien, were under some liability independently 
 of such i)roniises, i. e. were liable on the part of their 
 property. To the latter and not to the former cases, 
 therefore, the rule given in Wms. Saunders, which we 
 have already mentioned, and which is adopted in Fitz- 
 gerald V. Dressier, as we have shown above, applies.^ 
 
 A further example of a case, which it is submitted 
 is in reality founded on the rule now under discussion, 
 is that of Thomas v. Cook.^ In that case it was de- 
 cided that, under the state of facts there before the 
 court, a promise to indemnify a person, if he would be- 
 come surety for another, was not within the 4th section 
 of the statute of frauds. Thomas v. Cook,^ according 
 to Bavley, J., was decided on the ground that a promise 
 to indemnify does not fall within either the words or 
 the policy of the statute of frauds;* and according to 
 Parke, J., on the ground that the promise in question 
 was nothing more than an original one. There was, 
 however, another reason for holding, in the particular 
 case of Thomas v. Cook, tiiat the statute of frauds did 
 not apply, though it certainly escaped the notice of the 
 judges who decided that case. In Thomas v. Cook the 
 defendant (.who gave the promise of indemniT:y) was 
 surety jointly with the plaintiff (the promisee) for the 
 person for whom the plaintiif became surety, at the de- 
 fendant's request."^ Consequently, independently of his 
 express promise, the defendant was liaVjle to indemnify 
 the plaintiif to a certain' extent, owing to the opera- 
 
 ' The case of Castling v. Aubert, 2 ' 8 B. & C. '728. 
 
 East, 325, very mucli resembk'stlie cases ' Ibid. 
 
 just discussed. Tliis case has been al- * See this observation commented 
 
 ready fully noticed, ante, p. 135. . on, onte, p. 59, 
 
 * Kelsy V. Hibbs, 13 Ohio St. 340. See note J, page 58, and cases cited.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 145 
 
 tion of the doctrine of contribution amongst sureties, 
 which we shall treat of later on/ For this reason, 
 therefore, the case, it is submitted, falls within the rule 
 reco2:nized in Fitz2:erald v. Dressier.'^ 
 
 Another class of cases, which in reality also falls 
 within the rule we are now applying, but which has 
 been supposed to rest on other grounds, remains to be 
 considered. These are cases in which, in consideration 
 of the defendant's promise, a right to distrain another's 
 goods is given up.* Now, in all the cases of this 
 kind which are about to be cited, it will be noticed 
 that the person giving the promise, if not actual 
 owner of the goods about to be distrained, had at 
 least an interest in them, so as to bring the promises 
 within the rule laid down in Fitzgerald v. Dressier, 
 supra. At the same time the reader must be again 
 reminded that to such cases the remark, which has 
 in substance been before made, applies with peculiar 
 force, namely, that though the decisions themselves 
 are correct, the conflicting reasons given for them by 
 the judges are unsatisfactory in the extreme ; and that 
 in none of them is that reason for the decision given 
 which it is humbly submitted is the true reason, namely, 
 that the party promising was oioner or at least inter- 
 ested in the goods distrained. A leading case of this 
 class is that of Williams v. Leper.^ There a tenant of a 
 messuage belonging to the plaintiff was in arrear for 
 rent, and was also insolvent. He accordingly made a 
 bill of sale to the defendant (Leper) of all his goods in 
 the messuage, in trust to be sold for the use of his cred- 
 
 ' Vide post, Gha.^.\. =2 Wils. 308; 3 Burr. 1886. See 
 
 * 7 C. B. N. S. 374 ; see Love's case also this case cited, ante, p. 80, under 
 treated, ante, p. 136, under Rule II. Rule I. 
 
 See note *, page, 79 and cases cited. 
 10
 
 146 THE LAW OF GUARANTIES. 
 
 itors. The defendant advertised these goods for sale in 
 the niessuag'e, and on tlie morning fixed for the auction 
 the plaintitt" as Lxndlord came to distrain the goods. 
 Leper, on being informed of the plaintiff's intention to 
 distrain, promised the plaintiff to pay him the rent in 
 arrear if he would desist fr<Mn distraining. It was held, 
 that the promise of the defendant was not within the 
 4th section of the statute of frauds. Now, it is sub- 
 mitted, that the true reason of this decision is, because 
 the defendant had under the bill of sale an interest in 
 the ijroperty liahle to distress. A similar case to Wil- 
 liams V. Leper is that of Bampton v. Paulin.^ There it 
 appeared tliat the defendant, an auctioneer, was em- 
 ployed by A. and B. to sell goods on certain premises 
 for which rent was in arrear. The landloi'd applied to 
 the defendant, the auctioneer, for the payment of such 
 arrears of rent, saying that it was better to apply so 
 than to distrain. The defendant, after inquiring the 
 amount, said, ^' You shall be paid ; my clerk shall bring 
 you the money." It was held, that this case was not 
 distinguishable from Williams v. Leper, and that an 
 action lay on the defendant's promise without a note 
 in writing. Now in this case, as in Williams v. Leper, 
 the only true and intelligible ground for the decision is, 
 that the party making the promise, though not the 
 actual owner, yet had an interest in the goods about to 
 be distrained. * 
 
 To a similar effect is the case of Thomas v. Williams.* 
 There the plaintiff's tenant was in arrear for rent, and 
 the defendant, an auctioneer, was employed by such 
 tenant to sell his goods. The plaintiff, on the day fixed 
 
 ' 4 Bing. 264. MO B. A C. CG4. 
 
 * Page 79, note *.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 147 
 
 for the sale, went on the premises to distrain for an un- 
 paid l)alanc'e of rent due the preceding Lady-day. The 
 defendant promised the plaintiff, that if he would not 
 distrain, he would pay him, not only the rent in arrear, 
 but also rent that would accrue due on the following 
 Michaelmas. It was held that, though the promise, so 
 far as regarded the payment of rent in arrear, was not 
 within the 4th section of the statute, yet, that that por- 
 tion of it which related to rent to become due was 
 within the statute ; and that therefore, in the absence 
 of written evidence of the promise, the whole was void. 
 This decision is quite in accordance with the other cases 
 above cited, and is in remarkable accordance with the 
 rule in Fitzgerald v. Dressier; for clearly, though as re- 
 garded the rent in arrear, property in which defendant 
 had an interest was liable to distress, this was not the 
 case as regarded the rent to become due, for which there- 
 fore neither the defendant, independently of his promise, 
 nor property in which he had an interest, was liable. 
 
 Lord Tenterden, C. J., in delivering the judgment of 
 the court in this case, said the plaintiff coukl not have 
 distrained for rent not yet due. "The defendant, by 
 paying all that was due to Lady-day ,► might have pro- 
 ceeded to sell the goods. If that sum were paid or 
 secured, the plaintiff sustained no loss or detriment by 
 the sale of the goods. So that the promise to pay the 
 accruing rent exceeded the consideration, and cannot be 
 sustained on the ground on which the cases referred to 
 are to be sustained, but is nothing more than a promise 
 to pay money that would become due from a third per- 
 son, and is within the words of the statute and the mis- 
 chief intended to be remedied thereby. And, as to so 
 much, therefore, the promise is void by the statute." 
 
 Another class of cases, which, it is submitted, are
 
 148 THE LAW OF GUARANTIES. 
 
 refei-alile to the rule noAv iiiuler consideration (Rule 
 III), are promises to answer for your oioii debt. It is 
 settled that such promises are not within the statute of 
 frauds, which is confined, in its application, to promises 
 to answer " for the debt, default or miscarriage " of other 
 persons. In these cases, you are liable independently 
 of your promise. * 
 
 The case of Ardern v. Rowney ^ is an instance of 
 this class of cases. In Ardern v. Rowney these were 
 the facts. One Alder (who afterwards became a bank- 
 rupt), applied to the plaintiff to discount a check for 
 100/,, drawn by Alder upon Rowney, the defendant. 
 Before the plaintiff would give cash for it he sent his 
 clerk to the defendant, who asked the defendant if the 
 draft was a good one. The defendant answered that it 
 Avould be honored, as he was in Alder's debt 200/. 
 The plaintiff's clerk then observed that the check was 
 post dated, and could not, therefore, be recovered. The 
 defendant said, that that did not signify, and that it 
 should be paid. The plaintiff advanced the money, 
 which was never repaid. The plaintiff, having accord- 
 ingly brought assumpsit against the defendant on the 
 check for 100/., money had and received, with the 
 other common money accounts, it was objected that the 
 plaintiff could not recover on the count on the check, 
 as it was admitted to be void ; and as to the second, the 
 defendant's counsel said it was clear, that if this was a 
 mere promise of the defendant, by which he promised 
 the plaintiff, that if the plaintiff would advance 100/. 
 on his check to Alder he would pay it, it would be 
 decidedly void within the statute of frauds, as being a 
 
 ' 5 E3p. 254. 
 
 * Page 139, note *
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 149 
 
 promise to pay the debt of another without a note in 
 writing, so that it could not be money had and received. 
 Lord Ellenborough, C. J,, said, that if this had been an 
 agreement to pay the amount of any money which the 
 plaintiff might advance to Alder, and no specific sum of 
 money had been mentioned which was to be advanced, 
 the case would have Ijeen within the statute of frauds. 
 He held, however, that this was an appropriation of 
 lOOZ., part of the money which the defendant said he 
 owed to Alder, amounting to 200/., and that the plaint- 
 iff might recover. It was then suggested by the de- 
 fendant's counsel that plaintiff could not recover beyond 
 the money actually due by Rowney to Alder, and, on 
 his showing that 80/. only was due, Lord Ellenborough 
 directed the verdict to be entered for that amount. 
 
 Again, in Hodgson v. Anderson,-^ A. was indebted 
 to B., while C, who resided abroad, was indebted to A. 
 A. proposed to assign to B. the debt owing from C. to 
 him, which B. agreed to accept. A. wrote to C.'s 
 agents in this country : " As soon as you have funds be- 
 longing to C, j)ay, on my account, to B., 291/. 10-9., and 
 I will credit C, having received Ms order to tliat effect^ 
 C.'s agents verhally promised B. to pay him as soon as 
 they should have funds of C. in hand. A. afterwards 
 ordered C. to pay to another creditor the debt owing 
 from C. to A., and C. gave an undertaking to pay that 
 creditor, with a memorandum stating that as it was al- 
 leged that a payment had been made by some person 
 to A., on account of C.^ it was declared that should C. 
 prove such payment to have been made, the amount 
 should be deducted. C. refused to j^ay the debt to this 
 latter creditor, on the ground that his agents were liable 
 
 ' 5 D. *fe R. 735 ; s. c. 3 B. <fe C. 842
 
 150 THE LAW OF GUARANTIES. 
 
 to pay it to B., and C.'s agents, in fact, afterwards paid 
 it to B. It was held {inter alid)^ that C.'s promise to 
 pay B. was not a promise to pay the del)t of a third 
 person, and. therefore was not within the statute of 
 frauds, Bayley, J., in his judgment in this case, says : 
 "I tliink the case is not within tlie statute of frauds, 
 because it was a promise by the defendant to pay his 
 own debt with his own money, only paying it to the 
 banking company instead of to the j)laintiff. It was 
 not a promise to pay with his own money the debt of 
 the plaintiff, a third person. A written promise, there- 
 fore, was not necessary, in order to impose upon the de- 
 fendant an obliofation to j^ay the banking company, 
 because there was no agreement to pay money which 
 the party, l:)y law, was not obliged to pay ; there was a 
 full and adequate consideration for the payment." 
 Another case, of this same class, is Stephens v. Squire,^ 
 in which the facts were as follows: An action was 
 brought against Squire, an attorney, and two others, 
 for appearing for the plaintiff w^ithout a warrant. The 
 cause was carried down to be tried at the assizes, and 
 the defendant (Squire) pi'omised that, in consideration 
 that the phiintifi' would not prosecute the action, he 
 would pay 10^. and costs of suit. On this promise an- 
 other action was subsequently brought against Squire 
 The question was, whether the 4th section of the statute 
 of frauds required this j)romise to be in writing. The 
 court was of opinion thai; this could not be said to be a 
 promise for another person, but for his own debt, and 
 that it was, therefore, not within the statute. Noav, in 
 this case it will be ol)served that Squire, the defendant, 
 was, independently of his express promise, jxartially lia- 
 
 ' 5 Mod. 205.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 151 
 
 ble, at all events, to the plaintiff. This case, therefore, 
 could not be affected by the statute of frauds. Mr. 
 Fell, in liis work on Guaranties,^ gives as a reason for 
 takino' this case out of the statute, that the defendant, 
 who made the promise on which the action was 
 brought, was interested in the original transaction. An 
 apt illustration of the principle now under considera- 
 tion is also furnished by the case of Orrell v. Coj^pock.^ 
 In Orrell v. Coppock, a testator appointed his son, 
 Alfred Orrell, and three other persons, trustees and 
 executors of his will. Alfred Orrell disclaimed and re- 
 nounced probate, and afterwards purchased a portion 
 of the testator's property. One of the trustees, named 
 Winterbotham, who proved the will, was transported, 
 and Mrs. Brooks, a daughter of the testator, expressed 
 dissatisfaction at the way in which the trustees had 
 acted, and claimed 5,000/. from x\lfred Orrell. Alfred 
 Orrell denied all knowledge or participation in the mat- 
 ters in dispute, but, for the sake of peace, instructed 
 his solicitor, Mr. Coppock, to make some pecuniary of- 
 fer. Mr. Coppock ultimately lorote on behalf of Alfred 
 Orrell to the claimants, agreeing to pay 3,000/. in satis- 
 faction of the alleged losses Mr. and Mrs. Brooks had 
 sustained from the acts of the trustees. Tt was held 
 that, as against Alfred Orrell, this letter was not with- 
 in the statute of frauds as an asfreement to answer for 
 the debt, default or miscarriage of another, and that it 
 was not invalid for want of consideration. The reason 
 for this decision is ably given by Kindersley, V. C, in 
 his judgment in the case. He says: "Now it is clear, 
 according to this arrangement, that it was not a case in 
 which Mr. Alfred Oi-rell was saying, ' A. B. and C. D. , 
 
 ' 2d ed. pp. 18, 19. "" 26 L. J. Ch. 269.
 
 152 THE LAW OF GUARANTfES. 
 
 may be liable to you, and I will undertake that if they 
 do not pay this debt I will.' It is no such case. It 
 cannot be said to be an agreement for any debt, default 
 or miscarriage of another, Avithin the meaning of the 
 statute of frauds ; tliat statute does not apply to the 
 case where a party giving the guaranty is himself liable 
 to the demand which he is purporting to guarantee ; it 
 must be exclusively the debt, default or miscarriage of 
 the other to bring it within the statute ; and therefore 
 it appears to me that, in this case, when Mr. Alfred 
 Orrell was incurring this obligation it was not merely 
 to satisfy the debt of another, but the debt whicli, it 
 was insisted, rightly or wrongly, that he was liable for ; 
 and it is clear, from the arrangement, that none of the 
 losses, except that of Winterbotham, were individual, 
 but that all were liable for those losses, and therefore 
 Alfred Orrell was not only to be himself discharged, 
 but all the others." '^ 
 
 Rule IV. — The main or immediate object of the 
 agreement between the parties must be the 'payment of a 
 debt, or the fidfilment of a duty, by a third person. 
 
 It cannot but be a matter of regret that tlie judges 
 should ever have laid down the above rule, as one test 
 for ascertaining whether the 2d clause of the 4th section 
 of the statute of frauds applies to a particular agreement. 
 Its ap})lication must obviously be attended with much 
 difficulty. It is also to be regretted that, this rule once 
 established, it should not ahvays have been adhered to, 
 and that in many cases in whicli one would suppose it to 
 apply it is not even noticed in the decisions.^ The first 
 
 ' Soc mnny of the cases cited ante, as adopted, witli seeraiiijr approval, in Sel- 
 in illustrations of Kiile I. This rule is wyn's Nisi Trius, Vol. II, 3d ed. p. 777. 
 
 * Page 139, note *.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 153 
 
 case ill which the rule in question appears to have been 
 laid down is Castling v. Aubert.^ There the plaintiff, 
 a broker, having a lien on certain policies (^ insurance, 
 effected for his principal (one Grayson), for whom he 
 had given his acceptances, the defendant jDromised that 
 he would provide for such acceptances as they became 
 due, upon the plaintiff's giving up to hira such policies, 
 in order that he might collect for the principal the 
 money due thereon from the underwriters. This was 
 accordingly done, and the money was afterwards re- 
 ceived by the defendant. It was held that this was not 
 a promise within the 4th section of the statute of frauds. 
 Lord Ellenborough, C. J., in his judgment, says : "I am 
 clearly of opinion that this is neither an undertaking 
 for the deVjt, default or miscarriage of another person 
 within the statute. It could not be for the deht, but 
 rather for the credit, of another ; for when the promise 
 was made, no debt was incuri-ed from Grayson to the 
 plaintiff; therefore, if at all within the statute, it must 
 be for the default or miscarriage of another. But see 
 what the case is. The plaintiff, who was Grayson's 
 broker, had policies of insurance in his hands belonging 
 to his principal, which were securities on which he had 
 a lien for the balance of his account, and on the faith of 
 these he agreed to accept bills' for the accommodation 
 of his principal. One of these bills became due, and 
 actions were brought against the plaintiff as acceptoi', 
 and against Grayson as drawer ; and it was desirable 
 that the policies should be given up by the plaintiff to 
 the defendant, in order to enable the money for the 
 losses incurred to be received from the underwriters, 
 the defendant undertaking, upon condition the policies 
 
 ' 2 East, 325.
 
 154 THE LAW OF GUARANTIES. 
 
 were nmde over to liiiii, to settle the acceptances due, 
 and lodge nioney in a banker's hands for the satisfac- 
 tion of tlie Remainder as they became due. The defend- 
 ant then procured from the plaintiff the secuiities upon 
 the faith of tliis engagement, in entering into which he 
 had not the discharge of Grayson 'princi])aTly in his con- 
 templation^ hut the discharge of himself. Tliat was his 
 moving consideration, though the discharge of Grayson 
 would eventually follow. It is rather, therefore, a pur- 
 chase of the securities which the plaintiff held in his 
 hands. This is quite against the mischief pi'ovided 
 against by the statute, which was that })ersons should 
 not, by their own unvouched undertaking, without 
 writing, charge themselves for the debt, default or mis- 
 carriage of another. In the case of a bill of exchange 
 for which several persons are liable, if it be agreed to 
 be taken up and paid by one, eventually others may 
 be discharged; and the same objection might be made 
 there ; but the moving consideration is the discharge of 
 the party himself, and not of the rest, though that also 
 ensues. * Upon the whole^ therefore, I agree with the 
 decision in Williams v. Leper to the full extent of it. 
 I agree with those of the judges who thought the case 
 not within the statute of frauds at all." A similar view 
 was put forward by the court in the case of Elkins v. 
 Heart,^ which we have had occasion to cite before, 
 though upon another point.^ In that case the pay- 
 ment of the third party's debt was not the main ob- 
 ject of the agreement between the parties, as will be 
 seen on the examination of the facts, which were as 
 follows : The plaintiff sued J. G., the defendant's son- 
 in-law, for money due from him to the plaintiff for 
 
 ' Fitzg. 202. ' See ante, p. 95, under Rule I.
 
 OPERATION OF THE STATUTE OF FrtALTBS, ETC. 155 
 
 diet Ind lodging, the defendant promised, in consider- 
 ation that the plaintift' would forbear to sue the said J. 
 G. for the said sum, that the said J. G. should not 
 leave the kingdom without paying the same. The court 
 inclined to the opinion that this case was not within 
 the 4th section of tlie statute of frauds. Now here, 
 clearly, the main direct object of the agreement between 
 the parties was to prevent the third party leaving En- 
 gland. The indirect object was the payment of such 
 third party's debt. Of course, on such third pai'ty leav- 
 ino'Eno-land, the measure of the damaij^es ao^ainst the de- 
 fendant would be the debt due from such third party. 
 The circumstances would not, however, alter the nature 
 of the transaction and brins; it within the 4th section 
 of the statute of frauds, if it were not so for other rea- 
 sons. Another authority, in which the rule under con- 
 sideration appears to have been recognized, is tliat of 
 Macrory v. Scott.^ In that case it appeai'ed that a cei'- 
 tain judgment was given to the plaintiff by the defend- 
 ant as security for advances which the plaintiff had 
 made to the firm of Scott Brothers at the defendant's 
 request. Afterwards, in consideration that the plaintiff 
 would discharge Scott Brothers from all their existing 
 liabilities, and would pay to The Ulster Banking Com- 
 pany 800^., and would also advance to Scott Brothers 
 200/., it was agreed by the defendant that the said 
 judgment against him should remain as a security for 
 the 1,000/. This agreement being evidenced by a mem- 
 orandum or note in writing, sufficient to satisfy the 
 statute of frauds, it was unnecessary for the court to 
 decide on the above-mentioned facts, whether the case 
 was within the statute. Parke, B., however, in his 
 
 ' 5 Excb. 907.
 
 156 THE LAW OF GUARANTIES. 
 
 judgment in the case, says: "First, it is said tliat^here 
 oiK'-lit to be a note or memorandiiDi in writin<:c, because 
 this is a promise to be ansvvei'able for tlie deljt or 
 default of another, within the statute of frauds. But I 
 do not think this case is within that statute. It is not 
 directly a 'promise to iklij the debt of another^ but an 
 agreement stating that property ab'eady pledged for 
 one debt shall remain pledged for another. Although 
 the ultimate effect is that the debt may be paid, yet the 
 immediate object is merely to apirropriate the fund in a 
 different manner. It therefore falls within the princi- 
 ple of the decision in Castling v. Aubert."^ And, 
 again. Baron Martin, in his judgment in the same case, 
 says : " The substance of the arrangement was, that the 
 defendant, who had been a party to a former judgment, 
 should permit the judgment to remain as a security for 
 1,000/., which was to be advanced and given b}^ the 
 plaintiff to the Ulster Banking Company, on the terms 
 of his discharging Scott. The transaction is, in effect, 
 this: 'I, the defendant, will consent to the judgment 
 against me remaining as a security if you, the plaintiff, 
 will wipe off all existing demands against Scott <fe Co., 
 and advance 800/. to the Ulster Bank and 200/. to Scott 
 & Co.' To my mind this is clearly not a case within 
 the statute of frauds. It is not an undertaking to an- 
 swer for the debt, default or miscarriage of another; 
 but an agreement that a certain existing obligation 
 shall continue. The cases, all of which will be found, 
 in the note to Forth v. Stanton, establish that, for the 
 pur|)ose of bringing a contract within the statute of 
 frauds, it must l)e an engagement for the debt, default 
 or miscarriage of another, which this is not. So that, 
 
 ' 2 East, 325.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 157 
 
 even if it had been a parol contract, it would have 
 been perfectly good, as the statute of frauds does not 
 apply."' * 
 
 The case of Jarmain v. Alfjar,^ which has been be- 
 fore cited, may, perhaps, also be considered as having 
 turned upon the operation of the rule (Rule IV) now 
 under discussion. 
 
 In Jarmain v. Algar, it was held that a promise by 
 a party to execute a bail bond on a writ to be sued out 
 against A. B. in consideration of the plaintiff forbear- 
 ing to arrest A. B. on a writ already sued out, is not a 
 promise to answer for the debt, tfec, of another, within 
 the 4th section of the statute of frauds. The reason for this 
 nisi prius ^Qc\^\oM does not appear from the report of 
 the case in 2 Carrington &, Payne. It is submitted, 
 however, that the reason may very probably have 
 been because the immediate or 7nain olvject of the trans- 
 action was not the payment of a third party's debt, 
 though this might be indirectly attained. f 
 
 The most remarkable instance in which the rule 
 now under consideration (Rule IV) applies, and con- 
 sequently excludes the operation of the 4th section of 
 the statute of frauds, is undoubtedly the case of a del 
 credere ^ asjent. A del credere assent is, as is well known, 
 an agent who, for a higher commission, guarantees the 
 solvency of the purchasers of the goods of his employ- 
 ers — in other words, is answerable for the debts of 
 third persons.J Now, a del credere agent is not answer- 
 
 '2 0. <fe P. 249. which its signification is exactly cqiiiva- 
 
 '^ " The phrase del credere is bor- lent to our word guaranty or wan-Mnty." 
 
 rowed from the Italian language, in See Story on Agency, Yth ed. pp. 30, 31. 
 
 * Page 139, note *. 
 
 t Browne, Stat. Frauds, sec. 176; Lewis v. Brehme, 33 Md. 413. 
 
 X Story on Agency, sec. 33, 215, 334.
 
 15S tul: law of guaranties. 
 
 able in the first instance,^ thougli tlu^ was once tliouglit 
 to be the case.^ He is really nothing more than a 
 surety.* Tlie nature of his liability is thus defined by 
 Lord Ellenborough, C. J., in delivering the judgment of 
 the Court of Queen's Bench in Morris v. Cleasby:^ 
 " In correct language," he remarks, " a commission del 
 credere is the premium or price given by the principal 
 to the factor for a guaranty. * * * But, whatever 
 term is used, the obligation of* the factor is the same; 
 it arises on the guaranty. The guarantor is to answer 
 for the solvency of the vendee, and to pay the money 
 if the vendee does not ; on the failure of the vendee, 
 he is to stand in his place and make his default good." f 
 
 ■ ' See Smith's Mercantile law, 8tli ed. ' See 4 M. &, S. 574. 
 
 p. 115, and the cases there cited. ' 4 M. & S. 566, 574. 
 
 * 2 Kent's Com. 4th ed. pp. 024, 625, note {e) ; Holbrook r. Wight, 24 
 Wend. 169. 
 
 t A del credere factor guarantees the solvency of the purchaser only, 
 and if they pay the price to him, his contract does not extend further, to 
 a guaranty of the remittance. Leverick v. Meigs, 1 Cow. 645 ; Heubach 
 V. Mollmann, 2 Duer, 227; Colton v. Dunham, 2 Paige, 267 ; Swan v. 
 Nesmith, 7 Pick. (Mass.) 220. 
 
 It is a general rule of law that a sale by a factor creates a contract be- 
 tween the principal and the purchaser, and that the debt created by the 
 sale is a debt due from the purchaser to- the principal. The exception to 
 this rule seems to arise in the case of factors under a del credere commis- 
 sion ; that commission giving rise to, and being, in effect, a contract of 
 guaranty lietween the factor as guarantor, and the principal as guarantee, 
 which guaranty becomes binding upon the factor, of course, upon 
 default, absolute; or the inability or incajiacity to pay, upon the 
 part of the purchaser. The consideration of this contract of guaranty is 
 usually an increased commission to the factor, or it perhaps might be other 
 good or valual)le interest. 
 
 The effect of the commission is, however, limited to this contract of 
 guaranty to the principal himself It in no sense operates to extinguish 
 the ordinary relation between principal and agent, being matter in ad- 
 dition thereto, and not in variation thereof, or subtraction therefrom. 
 The peculiar obligation of the del credere factor to his principal is there- 
 fore not primary but secondary. He is a surety only, and not a debtor.
 
 OPERATION 0? THE STATUTE OF FRAUDS, ETC. 159 
 
 Many ingenious suggestions have been made by learned 
 text writers for the purpose of justifying the exclusion 
 
 (See this questioned, however, in Edwards on Bailments, pji. 280, 281 ; 
 Dunlap's Paley on Agency, p. 110, note; Hurlbut v. Pacific Ins. Co. 3 
 Sumn. 480.) Punctual payment by the purchaser discharges him from 
 all liability. Naither is his engagement regarded as a collateral promise 
 to pay the debt of another under the statute of frauds. Nor is his obli- 
 gation so contingent as to require legal measures to be exhiiusted against 
 the purchaser, before the factor is bound. It amounts to, and is, an engage- 
 ment to see that the principal receives his money upon the day it becomes 
 due. And this not merely by the receipt of acceptances from the buyer, 
 but by the absolute payment in money or other medium authorized by 
 or satisfactory to the principal. Story on Agency, sees. 98, 215 ; McKen- 
 zie V. Scott, 6 Bro. Pari. Cas. 280 ; Paley on Agency, by Lloyd, 41, 42 ; Mul- 
 ler t). Bohlens, 2 Wash. C. C. 378; Tompkins v. Perkins, 3 Mason, 232; 
 Holbrook v. Wight, 24 Wend. 169; 2 Kent's Com. [12th ed.] 635, note (g). 
 But if the money is once received from the purchaser by the factor, 
 any peculiarity in his position and responsibility ceases, and he becomes 
 an ordinary factor, liable only for due diligence in remitting to his princi- 
 pal. Story on Agency, sec. 215 ; Leverick v. Meigs, 1 Cow. (N. Y.) 645 
 Mackenzie v. Scott, vU mx>ra\ Livermore on Agency, 408-411 (ed. 1818) 
 Smith on Merc. Law, 52 (2d ed ), Id. ch. 5, § 2, p. 98 (3d ed. 1843) 
 Russel on Factors, art. Del Credere Commission ; Sherwood v. Stone, 14 N. 
 Y. 267; Bradley v. Richardson, 33 Vt. 720, 731. 
 
 A factor del credere may sue the debtor in his own name. Sherwood 
 V. Stone, ubi supra, though see Bramble «. Spiller, 18 W. R. 316 ; see 
 Dunlap's Paley, note, p. 110, — but if he elect so to do, the principal may, 
 in spite of the del credere commission, sue the purchaser himself. Wolff ». 
 Koppel, 5 Hill (N. Y.) 458 ; Holbrook «. Wight, uU supra; Thompson v. Par- 
 kins, 3 Mason, 333; Gall v. Comber, 7 Taunt. 558; Peelew Northcote, 7 
 Taunt. 478 ; Morris v. Cleasby, 4 M. & Selwyn, 5G6. 
 
 The effect of a del credere commission is to render the factor responsible 
 to his principal, in the first instance, and when the principal employs a 
 factor or broker to sell for him, under a del credere commission, he wishes 
 it to be understood that he looks to him for payment, and that he has no 
 objection to recovering the price from the vendee. The rules of law, as 
 they regard principal and factor, are for the benefit of the principal and, 
 provided he appears before payment, he comes into his full rights to re- 
 ceive the price, and the vendee will not be justified in afterwards paying 
 the factor; but after the principal has dealt with the factor as the real 
 purchaser of the goods, which, by the del credere (fommission, he may be 
 considered to have done, the factor then stands in the situation of a 
 principal, and, in that character, he sells to the buyer on his own account.
 
 160 THE LAW OF GUARANTIES. 
 
 from the operation of the 4th section of the statute of 
 frauds, of the undertaking of a del credere agent.* We 
 will notice some of these suggestions before discussing 
 the reason assigned by our English courts for the ex- 
 clusion in question. Mr. Throop, in his work on the 
 
 The commission del credere is an authority to the factor to receive the 
 price, and so long as the principal does not interfere and countermand that 
 authority, the factor has a right to treat the vendee as his debtor, and is 
 the person warranted to receive the price from the vendee. If it it were 
 otherwise, in what a situation would the factor be placed ; he would still 
 be liable, under his del credere commission, to his employer, and yet not 
 have the means of getting the money into his own hands, by calling on the 
 buyer. And it is the same thing whether the factor acts under a commis- 
 sion del credere^ or is in advance to his principal by actual payments. 
 Livermore on Prin. & Agent, p. 227. 
 
 * " In this countiy the guaranty o^adel credere agent," said Mitchell, J., 
 in Sherwood v. Stone, 14 N. Y. (4 Kernan) 267, "is understood to be a 
 contract, directly with the principal, to j)ay him on the expiration of the 
 time of credit, whether the purchaser be solvent or not; that is the whole 
 contract between the factor and his principal, and it is an original under- 
 taking, without any relation to the debt or liability of another. The law 
 (not the contract of the parties) then adds a quality to such a transaction, 
 that, although the factor may sue the purchaser in his own name, the prin- 
 cipal has also the right to sue. This, however, does not convert an ex- 
 press original undertaking of the factor with his principal, absolutely to 
 pay the debt at maturity, into a collateral and conditional agreement to 
 pay it if the purchaser does not. A guaranty by a factor differs very 
 especially from a promise to pay the debt at maturity, into "a collateral and 
 conditional agreement to pay it if the purchaser does not. A guaranty, by 
 a factor, differs very especially from a promise to pay the debt of another, 
 in another particular ; the principal transfers a right (although not the ex- 
 clusive right) to the factor to sue for and recover the money in his own 
 name, and to collect the debt and hold the money, accounting only for 
 the net balance of account between the parties. Thus the debt of the 
 purchaser is, to some extent, made the property of the factor, and he, to 
 that extent, becomes the purchaser of it, and so far substitutes his liability 
 in place of that of the purchaser. The effect of this, generally, is to make 
 the factor practically the owner of the debt, and this is almost invariably 
 so, if he remains solv/ent and on just terms with his principal. In that 
 case, the principal is unknown to the purchaser."
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 161 
 
 Validity of Verbal Agreements/ says : " It may be 
 doubted whether the statute would apply, irrespective 
 of these sug2:;estioiis, for it is by no means clear that 
 the transaction would satisfy the language of this clause. 
 It does not appear to be a promise to answer for the 
 debt or default oi any. particular j^er son ; for there was 
 no debt in existence at the time the contract is made ; 
 not in the sense of Lord Mansfield's proposition in Mow- 
 bray V. Cunningham,^ which he subsequently abandoned, 
 but in the sense that there is no debtor or person pro- 
 posing to become a debtor, to whom the term ' another 
 person' can apj^ly. Indeed, no reason is perceived why 
 a distinct class should not be added to those already 
 recogiiized, where the promise is without the statute, 
 because those words are not satisfied ; comprising not 
 only del credere contracts, but all promises where the 
 person for whose debt or default the promiser under- 
 takes to answer, is not designated at the time of the 
 contract. If A. undertakes to procure competent me- 
 chanics to build a house for B., and. that it shall be com- 
 pleted by them in a certain time, and according to cer- 
 tain specifications (it being perfectly understood that A. 
 is not to do any of the work himself), in one sense A. 
 undertakes for their default or miscarriage ; but, prob- 
 ably, no one would doubt that the contract was not 
 within this clause of the statute. That the reason is 
 because the persons for whom A. undertakes are not 
 then in esse, for the purpose of the contract, will be ap- 
 parent from the fact that, if they had been designated 
 at the time, and the undertaking was that they should 
 perform, probably no one would doubt that it was 
 within the statute. So in the case of a factor's contract 
 
 ' Page 660. ' Cited ante, p. 112. 
 
 U
 
 162 Tin: law of guaranties. 
 
 with Lis principal: if the buyer was named, doubtless 
 the statute would apply to a del credere conti'act ; and 
 so if an ordinary factor, having already made a sale for 
 his principal, should guarantee the payment of the price 
 by the ])urchaser for a new consideration, passing be- 
 tween him and his principal." 
 
 Again, another reason is suggested in the Gtli Ameri- 
 can edition of Smith's Leading Cases.* It is there stated,^ 
 that the true explanation of the cases which hold that 
 the statute does not apply to sales on a del credere com- 
 mission, may perhaps be found in the doctrine that any 
 promise to pay the debt of another upon a consideration, 
 no matter how disproportionate, moving to the pro miser, 
 is not within the statute ; but that the point cannot be 
 considered as decided. However, he afterwards adds : ^ 
 " One of the reasons given for this conclusion is, that, as 
 agents are liable for good faith and due diligence in the 
 transaction of the lousiness confided to their care, a stipu- 
 lation by which this liaVnlity is defined or even extended, 
 cannot be regarded as a promise for the default of an- 
 other in the exclusive sense contemplated by the statute. 
 But it would also appear that a guaranty or insurance 
 of a debt, for a percentage or commission, would be 
 valid, aside from this ground, on the general principle 
 that a party who piomises to pay the debt of another 
 for value received, makes the debt his own, and cannot 
 rely on the statute as a defense to an action, brought 
 to comj)el the engagement into which he has entered." 
 A complete summary of the various views upon the 
 subject is also to be found in the judgment of the court 
 delivered by Cowen, J., in the American case of Wolff 
 
 ' Vol. I, p. 489. on the Validity of Verbal Agreements, 
 
 ' This reference is taken from Throop note (c), p. *)58. 
 
 = Taire 494.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 163 
 
 V. Koppel.^ * The jiulgment is in itself a very instruct- 
 ive one, and tlie reasoning it contains was afterwards 
 adopted by the English courts, in the case of Couturier 
 V. Ilastie.^ It will be well, therefore, to give it at 
 length. 
 
 In this case of Wolff v. Koppel, Justice Cowen 
 spoke as follows: "It is objected that the contract of 
 a factor, binding him in the terras implied by a del 
 credere commission, is within the statute of frauds, and 
 should, therefore, be in writing. Such is the opinion 
 expressed by Theobald,^ and in Chitty on Contracts.* 
 The question was also mooted in Gall v. Comber,^ but 
 not decided, as seems to be implied in the careless man- 
 ner in which the case is quoted by Chitty.^ All the 
 authority presented by the ai'gument grows out of the 
 nature of the contract, as held by the King's Bench in 
 Morris v. Cleasby.''' That case certainly defines the 
 liability of the factor somewhat differently from what 
 several previous cases seem to have done. The effect 
 of acting under the -commission is said to be, that the 
 factor becomes a guarantor of the debts which are 
 created ; that is to say, they are debts due to the mer- 
 chant, and the factor's engagement is secondary and 
 collateral, depending on the fault of the debtors, who 
 must first be sought out and called uj^on by the mer- 
 chant.^ On this we have the opinion of learned writers, 
 
 ' 5 Hill New York Rep. 458. * 8 T.iunt. 558. 
 
 » 8 Exch. 40 ; 8. c. 9 Exch. 102 ; 8. C. '4 M. <fe S. 566, 574, 575. 
 
 5 H. L. 673. " See also Hornby v. Lacy, 6 Mau. <fe 
 
 » Principal and Surety, 64, 65. Selw. 166, 171, 172 ; Peele w. Nortlicoto, 
 
 * Page 209, 10th American edition of 7 Taunt. 478, 484 ; 1 B. Moor. 178 ; s. c. 
 1842, Leverick t;. Meigs, 1 Cowen, 645, 664. 
 
 * 1 B. Moor. 279. 
 
 * Affirmed in 2 Denio (N. Y.^ 368.
 
 164 THE LAW OF GUARANTIES. 
 
 that if tlie agreement del credere be made without writ- 
 ill"-, the case comes within the statute. On the other 
 hand, approved writers assert that this is not so.^ It is 
 true these latter go on tlie more stringent obligation 
 supposed l)y Lord Mansfield ; that of a principal debtor 
 on the part of the factor, the accessorial obligation lying 
 ratlier on the purchaser. This view of the matter was 
 no longer correct, after the cases I hjtve mentioned were 
 decided. The consequence sought to be derived, how- 
 ever, by writ(;rs, is merely speculative, and the contrary 
 has lately been directly held by the Supreme Court of 
 Massachusetts, in Swan v. Nesmith.^ It is said, this 
 was without the court being aware of Morris v. Cleasby. 
 Be that as it may, they seem to have been fully aware 
 of the rule laid down in that case, and to have recog- 
 nized it as correct. They considered the obligation as 
 a guaranty. But a guaranty, though by parol, is not 
 always within the statute. Perhaps, after all, it may 
 not be strictly correct to call the contract of the factor 
 a guaranty, in the ordinary sense of that word. The 
 implied promise of the factor is, merely, that he will sell 
 to persons in good crt^dit at the time ; and, in order to 
 charoe him, neolioence must be sho^vn. He takes an 
 additional commission, however, and adds to his obli- 
 gation, that he will make no sales except to persons 
 absolutely solvent ; in legal effect, that he will be lia- 
 ble for the loss which his con-duct may bring upon the 
 plaintiff, without the onus of proving negligence. The 
 merchant holds the goods, and will not part with them 
 to the factor without this extraordinary stipulation, and 
 a commission is paid to him for entering into it. What 
 is this, after all, but another form of selling the goods? 
 
 ' 1 Bcawes. 4G, Cth Lond. ed. ; 3 "7 Pick. 220. 
 
 Chit. Commercial Law, 220, 221.
 
 OPERATIOX OF THE STATUTE OF FRAUDS, ETC. 165 
 
 Its consequences are the same in substance. Instead of 
 paying cash, the fiictor prefers to conti'act a debt or duty 
 which obliges him to see the money paid. This debt or 
 duty is his own, and arises from an adequate considera- 
 tion. It is contingent, depending on the event of his 
 failing^ to secure it throuirh another — some future vendee, 
 to whom the merchant is first to resort. Upon non-pay- 
 ment by the vendee, the debt falls absolutely on the 
 factor. * As remarked by Parker, C. J., in Swan v. 
 Nesmith, "the form of the action does not seem to be 
 material in such a case, that is to say, whether the mer- 
 chant sue for goods sold, or, on the special agreement. 
 The latter is perhaps the settled form ; but still the 
 action is, in efiect, to recover the factor's own debt. In 
 the later case of Johnson v. Gilbert,* the defendant, in 
 consideration of money paid for him by the plaintiff, 
 assigned a chattel note and guaranteed its payment. 
 In such a case the declaration must be on a guar, 
 anty to pay the debt of another; but this is so in 
 form merely. We held that the contract was to pay 
 the defendant's own debt; that it was not a con. 
 tract to pay as the surety of another. All such con- 
 tracts, and many others, are, in form, to pay the debt 
 of another, and so, literally, within the statute, but 
 without its intent. A promise by A. to B., that the 
 former will pay a debt due from the latter, is not within 
 the meaning, though it is within the words.^ So are a 
 •numerous class of cases where the promise is made, in 
 consideration of the creditor relinquishing some lien. 
 
 ' 4 nm, 118. " Conkey v. Hopkins, 17 Johns. 113; 
 
 Eastwood V. Kenyon, 11 A. <fe E. 438. 
 
 * Cartwriglit v. Green, 47 Barb. (N. Y.) 9 ; Same v. Wilmerding, 34 
 N. Y. 521.
 
 166 THE LAW OF GUARANTIES. 
 
 fund or security.^ The merchant gives up his goods to 
 "be sold, and pays a premium. * Is not this, in truth, 
 as much and more than many of those cases requii-e 
 which go on the relinquishment of a security? Sup- 
 pose a factor agrees, by parol, to sell for cash, but gives 
 a credit. His promise is, virtually, t'hat he will pay the 
 amount of the debt he thus makes. Yet, who would 
 say his promise is within the statute? The amount of 
 the argument for the defendant would seem to be, that 
 an assent for makinc; sales, or indeed a collectins: as^eEt, 
 cannot, by parol, undertake for extraordinary diligence, 
 because he may thus have the debt of another thrown 
 upon hiin. But the answer is, that all such contracts 
 have an immediate respect to his own duty or obliga- 
 tion. The debt of another conies incidentally, as a 
 measure of damages." 
 
 Coming to the reasons which have been given by 
 English judges and text v/riters, in Selwyn's Nisi 
 Prius^ we find on the nature of a commission del 
 credere in the followino- terms : 
 
 " On the same principle as that on which the class 
 of cases, commencing with Williams v. Leper,^ may be 
 explained, as before suggested, viz., that the principal 
 object of the transaction is to be regarded, it has been 
 held, that a retainer, of an agent to dispose of goods, 
 under a del C7'edere coYami^^ioUy need not be acce^^ted in 
 writing by the agent." f 
 
 The case of Couturier v. Hastie^was the first in 
 
 ' Theobald's Principal and Surety, * 8 Exch. 40, 55, reversed on appeal 
 
 45, and the cases there cited. to Exch. Ch. (see Hastie v. Couturier, 9 
 
 » i:;th ed. vol. ii, p. 776. Exch. 102), but affirmed jn the H. L. 
 
 . ^ 3 Burr. 1886; s. c. 2 Wils. 308. (see Couturier v. Hastie, 5 H. L. G73). 
 
 * Cartwright v. Wilmcrding, 24 N. Y. 521. 
 tid.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 167 
 
 which it was ever actually held in England., that the 
 contract of a factor, acting under the terms of a del 
 credere commission, is not within the statute of frauds. 
 And the reason given by the Court of Exchequer, in 
 their judgment, in this case, is because the main object 
 of the agreement between such an agent and his princi- 
 pal is, not the payment of tlie debt of another, but the 
 taking greater care by the agent in finding purchasers 
 for the goods of his principal. Baron Parke, who de- 
 livered the judgment of the court, said : " The other 
 and only remaining point is, whether the defendants 
 are responsible, by reason of their charging a del credere 
 commission, though they have not guaranteed by writ- 
 ing signed by themselves. We think they are.* Doubt- 
 less, if they had for a percentage guaranteed the debt 
 owing, or performance of the contract by the vendee, 
 being totally unconnected with the sale, they would 
 not be liable, without a note in writing signed by 
 them ; but, being the agents to negotiate the sale, the 
 commission is paid in respect of that employment ; a 
 higher reward is paid in consideration of their taking 
 greater care in sales to their customers, and precluding 
 all question whether the loss arose from negligence or 
 not, and also for assuming a greater share of resj^onsi- 
 bility than ordinary agents, namely, responsibility for 
 the solvency and performance of their contracts by 
 their vendees.f This is the main object of the reward 
 being given to them ; and, though it may terminate in 
 a liability to pay the debt of another, that is not the 
 
 * Cartwright v. Wilmerding, 24 N. Y. 521. 
 
 t Cartwright v. Green, 47 Barb. (N. Y.) 9; Same v. Wilmerding, 24 N. 
 Y. 521.
 
 lOS THE LAW OF GUARANTIES. 
 
 immediate ohject for wbicli the consideration is given ; 
 and the case resembles, in this respect, those of Wil- 
 liams V. Leper ^ and Castling v. Aubert.'^ We entirely 
 adopt the reasoning of an xlmerican judge (Mr. Justice 
 Cowen) in a very able judgment, on this point, in Wolff 
 V. Koppel.^ 
 
 And, subsequently, in the case of Wickham v. 
 Wickham,^ Wood, V. C, made the following observa- 
 tions on Couturier ^'. Hastie : "If tlie engagement en- 
 tered into by the firm of Jolm Finch & Sons was a 
 contract for a del credere agenc}', then, on the other 
 hand, I concur with what w^as urged on the part of the 
 plaintiffs, that the case of Couturier v. Hastie seems to 
 establish that it would not operate as a guaranty, and 
 would not be a promise to answer for the debt of an- 
 other within the 4th section of the statute of frauds. 
 When I look at the whole of that case, and consider the 
 reasons given by the judges in delivering their judg- 
 ments, though given very cautiously and guardedly, I 
 cannot but conclude that they considered that an agent 
 enterius: into a contract in the nature of a del credere 
 agency, entered in effect into a new substantial agree- 
 ment with the person whose agency he undertook ; that 
 the agreement so entered into by him was not a simple 
 guaranty, but a distinct and positive undertaking on 
 his part on which he would become primarily liable: 
 otherwise I cannot see how the learned judges could 
 arrive at the conclusion that the undertaking was not 
 within the statute of frauds. Certainly the opinion of 
 the American judge, which one of the learned judges 
 referred to with approbation, in delivering judgment in 
 
 ' 3 Burr. 188G; 2 Wils. 308. York Rop. 458, and see note (c) to Cou- 
 
 ^ 2 East, o'25. turier v. Hastie, p. 56 of 8 Excli. 
 
 » This case is reported in 5 Hill, New ^ 2 K. <fe J, 4'78, 486, 487.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 109 
 
 Couturier v. Hastie, goes to tlie full extent whicli I have 
 described." 
 
 Rule V. — The agreement between the promiser and 
 the creditor, to whom the 'promise is made, must not 
 amoiint to a sale hij the latter to the former of a security 
 for a deht, or of the debt itself.^ 
 
 It sometimes happens that a promise to pay the 
 debt of another, is made in consideration of the delivery 
 up of a security for such debt, or of the assignment of 
 the debt itself.f When this is the case, and the trans- 
 action really amounts to nothing more than a sale or 
 transfer of a security or of a debt itself, the -Ith section 
 of the statute of frauds would appear to have no ap- 
 plication. It seems that, for the existence of this rule, 
 there are only two direct authorities, namely. Castling 
 V. Aubert,^ % and Anstey v. Harden.^ Several other 
 cases are, however, said to have l)een decided on this 
 ground.^ In the following cases, which are cited as il- 
 lustrations of the present rule, it will be noticed, ^;'S^^y, 
 that in some only of the cases the agreement had the 
 effect of extinguishing the liability of the original 
 debtor ; and secondly, that sometimes the price of the 
 sale was the actual debt of a third person, sometimes a 
 portion only of such debt. 
 
 * 2 East, 325. ^ See Throop on the Validity of Ver- 
 
 " 1 N. R. 86. See also observations bal Ag-reements, p. 5Y3, note (/'); p. 
 
 of Cockbnrn, C. J., in Fitzgerald v. 576, note (y) ; p. 579, note (»i) ; p. 015, 
 
 Dressier, 7 C. 15. N. S. 374. note {d); p. 638, note (y). 
 
 * " Wbere a transaction between the parties is in its nature a purchase of 
 the debt itself, the defendant's promise to pay tlie whole or any part of the 
 amount to the original creditor, as the consideration olthepurcliase, is not 
 affected by the statute." Browne, Stat. Frauds, sec. 210 ; Therasscn v. 
 McSpeddon, 2 Hilton (N. Y.) 1. 
 
 t See cases cited in note *, page 79. 
 
 \ See ante^ pfige 153.
 
 170 THE LAW OF GUARANTIES. 
 
 In Castling v. Aubert/ the plaintiff, an agent, bad a 
 lien on certain policies of insurance effected for his 
 princi])al, for wliom lie had given his acceptances. The 
 defeiulant induced the agent to waive his lien and give 
 up to him (the defendant) the policies, by promising to 
 provide for the acceptances as they became due. The 
 court held this promise not to be within the 4tli section 
 of the statute of fi-auds, and Lord EUenboroiigh, C. 
 J., in giving judgment, said: "It is rather, therefore, a 
 p7i7xhase of the securities which the plaintiff held in his 
 hands. This is quite beside the mischief provided 
 against by the statute." And Lawrence, J., in the same 
 case, said: "This is to be considered as Vi, purchase by 
 the defendant of the plaintiff's interest in the policies. 
 It is not a bare promise to the creditor to pay the debt 
 of another due to him, but a promise by the defendant 
 to ])ay wliat the plaintiff' would be liable to pay if the 
 plfiintift' would furnish him with the means of doing so." 
 
 In Love's Case ^ the defendant, a stranger, verbally 
 promised to pay a third party's debt, in consideration 
 of the sheriff's officer restoring goods which he had 
 taken in execution on aj^. fa. It was held, that the 
 transaction amounted to no more than a sale of the 
 goods taken in execution. The statute of frauds does 
 not, however, appear to have been taken notice of in 
 this decision. 
 
 In Anstey v. Marden,^ A. being insolvent, a verbal 
 agreement was entered into between several of his 
 creditors and B., whereby B. agreed to pay the cred- 
 itors 10s. in the pound in satisfaction of their debts, 
 which they agreed to accept, and to assign their debts to 
 B. It was held, that this agreement was not within 
 
 ' 2 East, 325. » Sulk. 28. ' 1 N. R. 124.
 
 OPERATION OF THE STATUTE OF FRAUDS, ETC. 171 
 
 the statute of frauds, not being a collateral promise to 
 answer for the debt of another, ])ut an original contract 
 to imrcliase the del)t. In this case Mansfield, C. J., 
 seems to rest his decision partly on the circumstance 
 that the promise of B. was to pay only IO5. in the 
 jwund, and not the ivliole debt due from A. It is sub- 
 mitted, however, that if A. was liable in the first in- 
 stance for the 10s., this circumstance could make no 
 material difference in the character of the transaction 
 in question.^ " Another case which seems to be also 
 an example of the rule under consideration, is that of 
 Houlditch V. Milne.^ In that case, which has been be- 
 fore cited on another point, the action was in assumpsit 
 for tfie repair of a carriage. The following facts seem 
 to have been proved at the trial. The defendant sent 
 certain carriages, the property of one Mr. Copey, to be 
 repaired. The defendant applied to the plaintiff to 
 have the carriages sent on board ship, whereupon the 
 plaintiff asked who was he to look to for joayment of 
 the repairs. The defendant answered that he had sent 
 them, and that he would pay fq;- them. In consequence 
 of this statement the carriages were sent on board ship, 
 and the bill made out and delivered to the defendant. 
 The defendant declared that the bill was veiy high, but 
 promised to settle it in a few days. As he did not do 
 so the plaintiff's attorney called on the defendant, 
 
 ' It appears, however, as already liable ; and tlioun^h the facts were in 
 
 explained, that the agreement in ques- other respects somewhat similar to those 
 
 tion discharged A. from all liability, in Anstey v. Marden, yet the transaction 
 
 and, therefore, for this reason alone, the could not have been sustained on tlie 
 
 statute could not apply, see ante, p. 105. ground of & purchase or sale of a debt 
 
 In Chater v. Becket, 7 T. II. 201 (cited ^ 3 Esp. 86, cited ante, p. 78. 
 ante, p. 75), the ori;4iDal debtor remained 
 
 * Browne, Stat. Frauds, sec. 210; Therasson v. McSpeddon, 2 Hilton 
 (K Y.) 1.
 
 172 THE LAW OF GLTAUANTIE3. 
 
 "svlien the defendant said he was told the bill was a 
 most exorbitant one, and a fit subject to refer. The 
 defendant, however, also said that he had the money to 
 pay it, but did not say whether the money was Ms 
 own or Mr. Copey's. Lord Eldon, in giving judgment 
 said: "lie was not disposed to nonsuit the plaintiff. 
 In general cases, to make a person liable for goods de- 
 livered to another, there must be either an original 
 undertaking by him, so that the credit was given solely 
 to him ; or there must be a note in writinix. There 
 might, however, be cases where this rule did not apply. 
 If a person got goods into his possession on which tlie 
 landlord had a right to distrain for rent, and lie prom- 
 ised to pay^the rent, though it was clearly the d(?bt of 
 another, yet a note in writing was not necessary — it ap- 
 peared to apply precisely to the present case. The 
 plaintiffs had, to a certain extent, a lien upon the car- 
 riages ivliich they parted with on the defendant 8 prom- 
 ise to 'pay : that, he thought, took tlie case out of the 
 statute, and made the defendant liable for the amount 
 
 of the bill." ''* Now it is submitted that this case niisfht 
 
 • . . . 
 
 have been, and probably was, decided on similar grounds 
 
 to those on which the decisions in Castlinfj: v. Aubert 
 
 and Love's case appear to rest/ Another case, which 
 
 ' Sec, however, ante, p. 78, where it is shown that there was, apparently, 
 
 another ground for this decision. 
 
 * As to operation of the relinquishment of a lien to take the case out of 
 the statute, in addition to the cases cited in note *, page 79, see Browne, 
 Stat. Frauds, sec. 205, and Tindall v. Touchberry, 3 Slrobh. (S. C.) 177. 
 
 In several of the States it has been broadly 'decided that the mere re- 
 linquishment of the lien by tlie plaintiff takes the case out of the statute. Mer- 
 ccin V. Audrus, 10 Wend. (N. Y.) 4G1 ; Slingcrland v. Morse, 7 Johns. (N. Y.) 
 4G1; Adkinson v. Barficld, 1 McCord (S. C.) 57.5; Siau v. Pigott, 1 Nott 
 «fc McC. (S. C.) 124 ; Dunlap -c. Thornc, 1 Rich. 213 ; and sec, also, Handle v. 
 Harris, G Yerg. (Teuu.) 508.
 
 0PERATI02T OF THE STATUTE OF FRAUDS, ETC. iVo 
 
 is also an instance of tlie rule now under consideration, 
 is tliat of Barrell v. Trussel.^ 
 
 In Barrell i;. Trussell, J. A. made a good l)ill of sale 
 of goods to the plaintiff, to secure a debt of 122/. Ids. 
 due from liini to tlie plaintiff. The plaintiff being 
 about to sell the goods in satisfaction of the del)t, the 
 defendant undertook to pay tlie plaintiff the 122/. 195. 
 if he would forbear to sell. Mansfield, C. J., held this 
 not to be a transaction within the statute of frauds. lie 
 said, " What is this but the case of a man who having 
 the absolute uncontrolled power of selling goods refrains 
 upon the request of another." 
 
 From the report of this case, it appears that the 
 plaintiff, by virtue of the bill of sale, was absolute 
 owner of the goods in question. Consequently the de- 
 fendant's promise was nothing more than an original 
 one to hu// the said goods, fixing the price at the 
 amount of a third person's debt, which, under the cir- 
 cumstances, was a fair and convenient measure of the 
 price. 
 
 The cases of Williams v. Leper,^ Edwards v. Kelly,^ 
 and Bampton v. Paulin,^ where, in consideration of the 
 delivery up of goods actually taken, ov about to be 
 taken, in distress for rent due from a third person, the 
 defendant promised to pay such rent, would seem to be 
 nothing more than purchases, and onigJit, thevefove, have 
 been exempted from the operation of the statute of 
 frauds on that ground ; and possibly some of them were 
 exempted partly on that ground ; though, as already 
 pointed out, there were certainly other more prominent 
 reasons for holding the statute to be inapplicable to 
 those cases. 
 
 '4 Taunt. 117. » 6 M. <fe S. 204. 
 
 ' 3 Burr. 1886 ; 8. c. 2 Wils. 308. " 4 Bing. 264.
 
 ITi THE LAW OF GUAP.ANTIES. 
 
 The case of Tiiomas v. Williams/ indeed, where the 
 defendant promised to pay rent due and to hecome due 
 from a third person, in consideration of the plaintiff for- 
 bearing to distrain certain goods for the rent then due, 
 is certainly, as pointed out by jMr. Throop, in his work 
 on the Validity of Verbal Agreements,^ at war with the 
 theory, that where the goods are given up to the prom- 
 iser the transaction amounts to a purchase, and is, there- 
 fore, not within the 4th section of the statute of frauds. 
 For in Thomas v. Williams, the statute was held to 
 apply, hecause the the promise was not merely in con- 
 sideration of rent tlteti due^ but also in- consideration of 
 rent to hecome due. But, as ]\Ii\ Thiv^op rightly observes, 
 if this was indeed a purchase, it would be immaterial 
 what price the defendant agreed to pay. .Moreover, 
 from the case of Clancy v. Pigott,^ it loould seem that 
 in no case can the transaction be treated in the light of 
 a purchase, where the goods liable to distress are, on the 
 defendant's promise to pay what is due from the third 
 party, given up to such third party, and not to the 
 principal debtor. 
 
 MO B. <t C. 664. on the Validity of Verbal Agreenjents, 
 
 ' Pag-e 570, note (j). note (m), p. 579. 
 
 * 4 Kev. & Maun. 496. See Throop
 
 CHAPTEK III. 
 
 "WHAT IS A SUFFICIENT MEMOEANDUIM IN WRITING TO 
 SATISFY THE REQUIREMENTS OF THE FOURTH SECTION 
 OF THE STATUTE OF FRAUDS. 
 
 We have already stated that the 4th section of the 
 statute of frauds^ requires tlie contract of guaranty to 
 be evidenced by writing, for it ])rovides that the agree- 
 ment upon which the action shall be brought, or some 
 memorandum or note thereof^ must be in tvriting^' and 
 signed by the party to he charged therewith^ or some other 
 person thereunto by him lawfully authorized. It will be 
 observed, that the statute requires that " the agreement " 
 be in writing. In the celebrated case of Wain v. Warl- 
 ters,^ the guaranty sued upon was written in the follow- 
 ing words : — 
 
 • " Messrs. Wain & Co. : 
 
 " I will engage to pay you, by half past four this 
 
 ' 29 Car. 2 c. 3. " 5 East, 10. 
 
 * When the statute of frauds requires a promise to be in writing, it 
 cannot be partly in writing, and partly by parol. 3 Kent's Com. p. 556 *; 
 Hall V. Soule, 11 Mich. 494; Wright v. Weeks, 43 N. Y. 153; Pierson v. 
 Hooker, 3 Johns. 68; Jackson y. Foster, 13 Johns. 488; Halstead's Law of 
 Evidence, p. 330, and cases cited pp. 330 to 343. When the agreement is 
 one embraced in the statute of frauds, no action can be brought upon it 
 unless it be wholly in writing. Stearns «. Hall, 9 Cush. 35 ; Cummings v. 
 Arnold, 3 Met. 486 ; Bryan v. Hunt, 4 Sneed, 543 ; Blood v. Goodrich, 9 
 Wend. 68; Rogers » Atkinson, 1 Kelly, 13; Whittier v. Dana, 10 Allen, 
 336. The written instrument is presumed to contain the whole contract, 
 and parol evidence cannot be admitted to contradict or vary its terms. 
 Reed v. Jones, 8 Wis. 393 ; Peers v. Davis, 8 Jones (39 Mo.) 184.
 
 17G THE LAW OF GUARANTIES. 
 
 day, fifty-six pounds and expenses on Lill, tliat amount 
 
 OD^lIall. 
 
 " John Warlters. 
 "2 Cornliill, April 30, 1803." 
 
 This memorandum was held insufficient to satisfy 
 the statute of frauds, because only part of the agree- 
 ment aj^peared in wi'iting, namely, the promue^ but the 
 4th section requires "the agreement" to be in writing, 
 and not any sjyecified part of it. And it appears, that 
 an agreement is not perfect, unless in the body of it, or 
 by necessary inference, it contains the names of the two 
 contracting parties, the subject-matter of the contract, 
 the consideration, and the promise.^ '"' 
 
 If the legislature had intended that i\\Q jj^^omise only 
 should appear in writing, they would doubtless have 
 employed such language as they have used in the 17th 
 section of the statute of frauds, which, instead of pro- 
 viding that " the agreement^'' shall be in writing, requires 
 only " that some note or memorandum in writing of the 
 said bargain be made and signed by the parties to be 
 charged by such contract, or their agents thereunto 
 lawfully authorized." In Egerton v. Matliews,^ it was 
 contended, that there was no substantial difference in 
 lanfmafre between the 4th and 17th sections of the 
 statute of frauds. The court, however, took a different 
 view, and Lawrence, J., in giving judgment, said: "The 
 case of AVain v. Warlters proceeded on this, that, in 
 order to charge one man with the debt of another, the 
 agreement must be in writing; which word agreement 
 we considered as properly including the consideration 
 
 ' Per Tindal, C. J. in Laytlioarp v. ^ 6 East, 307. 
 
 Bryant, 2 Bing. N. C. 742. See also 
 Sheppard's Touchstone, p. 85. 
 
 * See ante, page 58, note f.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 177 
 
 moving to, as well as the promise by, the party to bo 
 so charo:ed ; and that the statute meant to require that 
 the whole agreement, including both, should be in writ- 
 ing." 
 
 For a loui^: time the ease of Wain v. Warlters was 
 regarded as of doubtful authority,-^ and two of the judges 
 (Lawrence, J., and Le Blanc, J.) who decided the case, 
 only gave a hesitating assent to the decision. The case 
 was, however, at last confirmed in Saunders v. Wake- 
 field,^ and was never afterwards doubted.^ The rule 
 that the consideration, as well as the promise, must 
 appear on the face of a guaranty, which was thus laid 
 down, proved a grievance to the mercantile community,"^ 
 , and was at last rescinded by the 3d section of the Mer- 
 cantile Law Amendment Act.^ That section enacts, 
 that " No special promise to be made by any person 
 after the passing of this act, to be answerable for the 
 debt, default or miscarriage of another person, being in 
 writing and signed by the party to be charged there- 
 with, or some other person by him thereunto lawfully 
 authorized, shall be deemed invalid to support an action, 
 suit or other proceeding to charge the person by whom 
 such promise shall have been made, by reason only that 
 the consideration for such promise does not appear in 
 writing, or by necessary inference from a written instru- 
 ment." 
 
 This enactment is not retrospective in its operation,^ 
 and it only dispenses with any turitten statement ^1' the 
 consideration, the existence of a consideration being quite 
 
 ' See ex parte Minet, U Ves. 189 ; ex '' 4 B. <fe Aid. 595. 
 
 parte GiirAom, 15 Ves. 2S6; Phillips v. '1 Sm. L. C. Cth ed. p. 278, and 
 
 Jiateman, 16 East, 350; Goodman v. cases there cited. 
 Chase, 1 B. tfe A. 300 ; 1 Wms. Saund. •* 1 Wms. Saund. (last ed.) p. 227. 
 
 (last ed.) p. 226 ; 1 Sm. L. C. 0th cd. p.' M9 <fe 20 Vict. c. 97. 
 
 278 ; Fell on Guaranties, 2d ed, Appcu- ' Taylor on Evidence, 5tli ed. Vol 
 
 dixlV,p. 262. IT, p. 895. 
 
 12
 
 173 THE LAAV OF GUARANTIES. 
 
 as necessary as it was before.^ Nor must it be supposed 
 that, in the case of guaranties not under seal, a consider- 
 ation is presumed to exist until tlie contrary is shown,*^ 
 for sucb a pi'csumption is applicable only to ])ills of ex- 
 change and promissory notes.^ Accordingly, in suing 
 upon a guaranty, the consideration for it must appear in 
 tlie declaration, whereas it is never necessary for a plaint- 
 iiF to aver in his declaration a consideration for any en- 
 gagement on a bill or note/ It is not, however, neces- 
 sary in declaring on a guaranty, to state it to have been 
 in writing, for it is a well-known rule of pleading tliat, 
 when a statute regulates the mode of performing an act 
 wliich was valid at common law, the same certainty of 
 allegation is sufficient after the statute as would have . 
 sufficed hefore it.^ Since the passing of the Mercantile 
 Law Amendment Act, section 3, though parol evidence 
 may be given to show the consideration for a guai'anty, 
 it cannot 1)6 admitted to explain the promise, which, by 
 the statute of frauds, section 4, must still be complete 
 in writing.^ The above enactment does not, says Byles, 
 J.,*"^ make 2l promise good which was not good before."* 
 Formerly, the consideration expressed in ivriting might 
 be looked at, not only to support, but to explain the 
 promise. But tlie^mrc^ consideration cannot be looked 
 at to explain the piomise.^ If an instrument of guar- 
 anty states a had consideration, it would not be helped 
 by the Mercantile Law Amendment Act.^ Moreover, 
 
 ' 1 Sra. L. C. 6th ed. p. 279 ; and see ' 1 Sm. L. C. fitli ed. p. 289. 
 
 Glover V. Halkett, 2 H. & N. 487. ' Holmes v. Mitchell, 7 U. B. K S. 
 
 » Fell on Guaranties, 2.1 ed. pp 5 & 6. 361. 
 
 » ILanM V. Hughes, 7 T. 1{. 350, note ' lb. p. 367. 
 
 (a); 4 Brown Pari. Cas. ; Chitty on * Per Byles, J., and Vv^illiams, J., in 
 
 Bill's of Exchange, 10th ed. p. 47. Holmes /;. Mitchell, supra, pp. 307, 370. 
 
 * Popplewell ?;. Wils<m, 1 Stra. 264; * Per Bramwdl, B.. iu Wood v. 
 see Byles on Bills. Idth ed. pp. 118, 119. Priestner, L. R. 2 Ex. p. 66. 
 
 * A statute is to be construed with reference to tlie old Jaw, the mis- 
 chief and the remedy. Sawyer v. Xorth American Life Ins. Co. 46 Vt. 097.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 179 
 
 where the parties choose to state in writing the con- 
 sidei'ation for the promise, they are, it is presumed, 
 boiuij by such statement, and cannot vary it by parol 
 evidence.^ But if the language of the guaranty is 
 sufficiently ambiguous, parol evidence is admissible to 
 show that the alleged consideration is sufficient in law.^ 
 We have already stated, in the first chapter,^ that in the 
 consti-uction of guaranties, the rule that the construction 
 must be given, ut res magis valeat, is applicable. ^ This 
 was decided in the case of Broom v. Batchelor.^ And 
 in determining whether the promise to answer for an- 
 other's debt, default or miscarriage does appear in writ- 
 ing, i-egard must be had, not only to those cases in 
 which the coui'ts had to decide whether the statement 
 of ihe ]jro7nise was sufficient, but also to those analogous 
 cases (occuning befoi'e 19 & ?0 Vict. c. 97, s. 3). in 
 which the question to be decided was whether the 
 statement of the consideration was sufficient. Conse- 
 quently, although it is no longer necessary now that 
 the consideration should appear on the face of the guar- 
 anty the decisions on this point may usefully be re- 
 ferred, to. f The following are some of the most im- 
 portant of such cases. 
 
 ' See 1 Sm. L. C. 6th ed. p. 279; and wards v. Jevons, 8 C. B. 436 ; Ilaigli v. 
 
 see Taylor on Evidence, 5th cd. Vol. II, Brooks, 10 Ad. & E. 309 ; Colbuuni v. 
 
 p. 895'; Oldershaw v. King, 2 H. & K Dawson, 10 C. B. 765. 
 399 : s. c. lb. (Cam. Scacc.) p. 517. ^ Ante, p. 32. See also post. Chap. 
 
 ■•' Iloiid V. Grace, 31 L. J. N. S. Exch. IV. 
 78; GoUlsbede w Swan, 1 Ex. 154; M II. tfe N. 255. 
 
 Cambridge v. Wade, 16 Q. B. 89; Ed- 
 
 * The maxim vt res magis taleat quam pereat — " That the subject-matter 
 raay rather have effect than be destroyed," — is a maxim expressive of one 
 of the great objects regarded by courts in the construction of contracts, 
 viz., the preservation of the contract itself. See per Covran, J., in Hall v. 
 Newcomb, ?> Hill, 233; Seabury r. liungerford, 2 Hill, 84. 
 
 t The law as to the point raised in Wain v. Warltcrs, and thus disposed 
 of by the act of 19 & 20 Victoria, varies in the different States. Thus, in 
 Alabama (C. 1852, sec. 1551), Wisconsin (R. S. 1849, tit. 20, ch. 7G, sec. 2),
 
 ISO THE LAW OF GUARANTIES. 
 
 Tn Lyon v. Lamb/ Lyon had. been induced by 
 Lamb to give credit to one Anderton for divers quan- 
 
 • ' Fell on Guaranties, 2d eJ. App. No. III. • 
 
 Oregon (C. C. tit. 8, ch. 8, sec. 775), Nevacl^a (L. 18G1, ch. 9, sec. 57), Min- 
 nesota (R. S. 1866. ch. 41, tit. 2, sec. 6), Calilornia (L. April 19, 1850, ch. 
 4, sec. 8), it is expressly enacted by statute that the consideration shall be 
 expressed. While in New York (L. 1863, ch. 464, p. 802, amending 3 R. S. 
 p. 221, 5 ed.), Massachus.etts (G. S. 1860, part. II, tit. 6, ch. 105, sec. 2), 
 Virginia (C. 1849, ch. 143, sec.-l, (8), Indiana (R. S. 1852, ch. 42, sec. 2), 
 and Kentucky (R. S. 1852, ch. 22, sees. 1, 2), it is enacted that the consider- 
 ation may appear as in the statute of Victoria. In Georgia (Browne on 
 Stilt. Frauds, A])p. p. 514; T. R. Cobb, N. D. App. Ill), and Maryland 
 (Browne on Stat. Frauds, App. p. 520; Kelty's Report of English Statutes, 
 p. 242), the English statute is btill in force, and the rule in Wain v. Warltcrs 
 has received the sanction of the courts. Henderson v. Johnson, 6 Georgia, 
 390 ; Hargroves v. Cooke, 15 Id. 351. In Maryland (Sloan v. Wilson, 4 Hiirr. 
 & Johns. 322 ; Elliot v. Giese, lb. 457; Wyman t. Gray, lb. 409; Edelen v. 
 Gough, 5 Gill, 103 ; Hutton r. Pisdgett, 26 Md. 238 ; but see Brooks v. Dent, 
 1 Md. Ch. Dec. 53J). In the States whose statutes are silent on the subject, 
 the point has been decided as seemed to its courts •' wisest in point of policy 
 or most commended by authority."' Browne on Statute of Frauds, p. 408. 
 Of the States not above mentioned (all of which retain the word "agree- 
 ment " in their particular statute of frauds), the ruling in Wain v. Warlters 
 has been rejected, in Maine (Levy v. Merrill, 4 Greenl. 189 ; Gilligbam t-. 
 Boardman, 29 Maine [16 Shep.] 81), Vermont (Smith ». Ide, 3 Verm. 299 ; 
 Patchin t. Swift, 21 Id. 297), Connecticut (Sage v. Wilcox, 6 Conn. 81), 
 North Carolina (Miller i'. Irvine, 1 Dev. & Bat. 103; Ashford v. Robinson, 
 8 Ired. 114), Ohio (Reed v. Evans, 17 Ohio, 128), and Missouri (Bean v. 
 Valle, 2 Mo. 103), but it has received the sanction of the courts in New 
 Hampshire (Neelson v. Sanborn, 2 N. H. 414 ; Underwood v. Campbell, 14 
 Id. 393), New Jersey (Buckley v. Beardslee, 2 South. 572 ; Laing v. Lee, 
 Spencer, 337), South Carolina (Stephens v. Winn, 2 Nott & McC. 372, note 
 [a]; per contra^ however, see Lecat v. Tavel, 3 McCord, 158), Michigan 
 (Jones r. Palmer 1 Doug. 379), Wisconsin (Reynolds v. Carpenter, 3 
 Chand. 31 ; Taylor r. Pratt, 3 Wis. 674), Mis.dssippi (Wren v. Pierce, 4 
 Sm. & M. :i), Tennessee (Taylor v. Ross, 3 Ycrg. 330), Kentucky (Ratcliff 
 V. Trout, 6 J. J. Marsh. 606), Florida (Dorman v. ]5igelow, 1 Fla. 281). 
 In Louisiana the civil law prevails, and no consideration is necessaiy to 
 be stated or proved. Ringgold ». Newkirk, 3 Ark. 96. In those States 
 whose statute couples the word " promise " with the word '' agreement," 
 the courts, it will be observed, have generally dispensed with the statement 
 of the consideration. Browne on Statute of Fraudsj 409, sec. 391. See 
 also ante^ notes *, page 50, and * page 24.
 
 MEMORAIST)UM TO SATISFY STATUTE OF FRAUDS. 181 
 
 titles of raw cotton under wLat was alleged to be an 
 implied guaranty of Lamb. The circumstances were 
 these. The invoices for the goods supplied, had been 
 regularly sent by Lyon to Lamb, and accepted by him, 
 and were in the following form: — "Mr. John Ander- 
 ton, guaranteed by J. Lamb, bought of J. Lyou," <fcc. 
 Lamb had been induced to endeavor to gain credit 
 for Aiiderton, from Anderton's sending his manufac- 
 tured goods to him to sell upon commission. Upon 
 Anderton's ceasing to do this, Lamb sent back the 
 next invoice, and gave Lyon the following note iu writ- 
 
 " Mr. John Lyon : 
 
 "You will receive back your invoice of nine bags 
 left on Wednesday, as Mr. Anderton does not now send 
 me his goods to sell. I guarantee all he has bought 
 from you before Tuesday, but I will guarantee no 
 further." (Signed, <fec.) 
 
 Ic was admitted, both in the argument and in the judg- 
 ment, that if credit had been given to Anderton at 
 the request and upon the verbal guaranty of LainV>, 
 that would have been a good consideration for the 
 subsequent promise in writmg, and it was further ad- 
 mitted that the invoices might be used to explain the 
 memorandum ; however, it was held that such consider- 
 ation did not sufficiently appear on the face of the 
 memorandum and invoices. Again, in Stapp v. Lill,^ 
 the memorandum was as follows: — 'I guarantee the 
 payment of any goods which Mr. John Stapp shall 
 deliver to Mr. Nicholls, of Brick Lane. It was held, 
 
 ' 9 East, 348 (tliere cited as Stadt v. Lill), and 1 Caiup. K V. R. 242.
 
 182 THE LAW OF GUARA^'TIES. 
 
 that, tliougli l)y the agreement, the plaintiff was not 
 obliged to deliver goods, there appeared a sufficient 
 consideration for the defendant's promise to })e an- 
 swerable if any sliould be delivered.''' The coui't said 
 that this case differed from Wain v. Warlters,^ as the 
 agreement contained the thing to be done b}'- the 
 plaintiff, wliich was the foundation of the defendant's 
 promise. Very similar to this case is that of Ex 'parte 
 Gardom,^ which came before the Lord Chancellor Eldoii, 
 upon petition for the admission of the proof of a 
 debt upon the following guaranties, given to the pe- 
 titioner by the bankrupts: — 
 
 "We ao-ree and -eno-ao^e to o-uarantee for wliat twist 
 T. T. may purchase from you from &c. to tfec." (Signed, 
 c<kc.) 
 
 After the expiration of the date there mentioned, 
 tlie following note of guaranty was given : — 
 
 " Whatever cotton twist you may dispose of to T. 
 T., we agree and engage to guarantee the same." 
 (Dated and signed.) 
 
 It was objected to these guaranties, that they did 
 not state any consideration, as between the petitioners 
 and the bankrupts. Lord Eldon expressed some diffi- 
 
 • 5 East, 10. * 15 Ves. 28G. 
 
 * A promise to do an act in consideration of some act to be done by 
 the promisee, itr.plies a request, and a compliance on the part of the hitter 
 closes the contract and makes it binding. Union Banlv v. Coster's Execu- 
 tors, 3 N. Y. 203. In case of a letter of credit, the person accepting and ex- 
 tending the credit, need not give express notice of acceptance. It will be 
 sufficient if the acceptance is seasonably made known to the signer in any 
 way. If the letter import an absolute undertaking for the fulfilment of 
 any contract made by the person to whom it is entrusted, it is sufficient 
 to bind the grantor, without demand on the original debtor or notice of 
 non-payment. Train v. Jones, 11 Vt. 444.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 183 
 
 culty in distinguishing tliis from the case of Wain v. 
 Warlters/ but added, " My opinion is that this is an 
 agreement, within the meaning of the statute, to pay for 
 the debt of another," and ordered the proof ^o be ad- 
 mitted. 
 
 In Stead v. Liddard,^ it was hehl, in an action on a 
 guaranty, that the reference, by the indorsement, to the 
 terms of the agreement, as foi'ming part of one trans- 
 action, was a sufficient memorandum of the considera- 
 tion within the statute. 
 
 In James v. Williams,^ a letter was written and sent 
 by the defendant to the plaintiff, in the following words: 
 "As you have a claim on my brother for 5/. 17s. for 
 boots and shoes, I hereby undertake to pay you the 
 amount within six weeks from this day." It was held 
 that the consideration, viz., forbearance for six weeks 
 to the principal debtor, could not necessarily or fairly 
 be drawn from the above lettei', and that therefore it 
 did not satisfy the statute of frauds.* 
 
 In Newbury v. Armstrong,^ the guaranty was in 
 these words: " I agree to be security to you for J. C, 
 .late in the employ of J. P., for whatever you may in- 
 trust him with, while in your employ, to the amount 
 of 50/." It was held, that the consideration, viz., that 
 the plaintiff should employ J. C, sufficiently appeared. 
 
 In Jarvis v. Wilkins,^ the guaranty was in the fol- 
 lowino; words: — 
 
 '5 Fast, 10. * 6 Bins:. 201. 
 
 ' 8 Moore, 2. . » 7 M. & VV. 410. 
 
 » 5 B. & Aid. 109. 
 
 * Yale ?). Edgerton. 14 Min. 194; Stewart «. Campbell, 58 Me. 439; 
 Thomas v. Delphy, 31] Md. 373 ; Duffy v. Wausch, 43 N. Y. 243 ; BucLan- 
 nan v. Paddleford, 43 Vt. 64.
 
 184 THE LAW OF GUARANTIES. 
 
 "Soptr. lull, 1839. I uudcrtake to pay to Mr. 
 Robert Jarvis, the sum of G^. 4s. lor a suit of clothes 
 ordered by Daniel Page. S. W. Wilkins." 
 
 It was held, that the consideration, whicli was that 
 if the plaintiff would sell to Page clothes, lie (the 
 defendant) would pay for tliem, could be collected by 
 necessary inference from the above instrument. 
 
 In Caballero v. Slater,^ the declaration set out an 
 agreement between Maiy Ann Caballero (the plaintiff), 
 of the first part, and David Thompson, of the second 
 part, signed by the said David Thompson, and also V)y 
 the defendant Slater, whereby Caballero agreed to let 
 the premises to Thompson, at a certain rent, payable 
 quarterly, and wliicli agreement concluded as follows: — 
 
 " And Mr. Midi lel Thrino^ Slater does also aorree and 
 undertake to see the rent paid quarterly by the said 
 David Thompson." 
 
 It was held, on demurrer to tliis declaration, that a 
 sufficient consideration for the defendant's promise ap- 
 peared by necessary implication from the instrument set 
 out. 
 
 In Ilawes v. Armstrong,^ it was held, that, to con- 
 stitute a valid agreement to answer for -the debt or 
 default of a third person, it was not necessary that the 
 consideration should appear in express terms: * it was 
 
 • 14 0. B. 300. V. Treleavan, 5 M. & W. 498; Haigh v. 
 
 ^ 1 Scolt, 661. See also Shortrede Brooks, 10 Ad. & E. ::09 ; Beniliam v. 
 
 V. Check, 1 Ad. dr E. 57; Lysaght v. Cooper. 5 M. tk AV. 621 ; James f. Wil- 
 
 Walker, 5 Bligb, N. S. 1 ; Emmett v. liams, 5 B. <fe Ad. 1009; Towers v. 
 
 Kearus, 5 Biiig. N. C. 559; Keunaway Fowler, 4 E. & B. 511, 516. 
 
 * Yale 1'. Edgerton, 14 Minn. 194; Stewart v. Campbell, 58 Me. 439; 
 Thomas r. Delpliy, 33 Md. 373 ; Dufly v. Wuuscli, 42 N. Y. 243 ; Buchanan 
 T. Paddlelbrd, 43 Vt. 64. 
 
 The consideration may be collected from the circumstances and the 
 evidence submitted. Singley v. Cutter, 7 Conn. 201 ; Smith v. Ide, 3 Vt.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 185 
 
 sufficient if the me mo rand am were so framed that a 
 person of ordinary capacity must infer, from the perusal 
 of it, that such, and no other, Avas the consideration upon 
 which tlie undertaking was given. In that case the 
 guaranty was as follows: — 
 
 " Afessrs. Hawes : G(3ntlemen — Inclosed I forward you 
 the bills drawn per J. T. Arm-jtrong upon, and accepted 
 by Leonard Dell, which, I doubt not, will meet due 
 honor ; but, in default thereof, I will see the same paid. 
 I remain, <i:;c,, B. J. x^rinstrong, Hatton Wall, 13th May, 
 1829." The consideration, stated in the declaration, was 
 " that the plaintiffs, at the request of the defendant, 
 would give time for the payment of the debt of 260^., 
 then due from J. T. xVrmstrong and Dell, and would 
 take, accept and receive, by way of security for the pay- 
 ment of the same, the several bills of exchange set out 
 in the declaration, and would forbear and give time to 
 the said J. T. Armstrong and'Dell for payment of the 
 said debt or sum of 260/., until the said bills should re- 
 spectively become due and payable." But it was held, 
 that the consideration did not sufficiently appear in the 
 memorandum, and also that no consideration could be 
 implied from such a memorandum. 
 
 In Jenkins v. Reynolds,^ the court held that the 
 words '" to the amount of 100/., be pleased to consider 
 
 ' 3 Brod. &. B. 14. 
 
 2C0 ; Wood «. Beach, 7 Vt. R. 523 ; Amos ». Ashley, 4 Pick. 71 ; mde note 
 t to page 179, where the rules in the diiferept States are considered. The 
 words ''for value received" constitute a sufficient statement of the con- 
 sideration. Mosher «. Ilotchkiss, 3 Abb. (N. Y.) App. Dec. 336; 3 Iveyes 
 101; Milleri). Cook, 23N. Y. 495; Douglass v. Howland, 24 Wend. 85; 
 Cooper V. Dedrick, 22 Barb. 316; Lapham v. Barrett, 1 Vt. 217; Whitney 
 c. Stearns, 16 Me. 394 ; Brewster ?;. Silence, 8 N. Y. 207 ; Connecticut &c. 
 Ins. Co. v. Cleveland R. R. Co. 41 Barb. 9 ; 26 How. 225; Cheency x. Cook. 
 7 Wis. 413 ; Howard v. Holbrook, 9 Bosw. 237.
 
 1S6 THE LAW OF GUARx\NTIE3. 
 
 me as security on Mr. James Cowie <fc; Co.'s account," 
 did not sufficiently indicate the consideration. 
 
 ■In Russell V. Moseley/ tlie following instrument was 
 held sufficiently to disclose a consideration : — " I herel)y 
 guai-antee the present account of 11. M., and what she 
 may contract from this day to 30th September next." 
 
 Where the instrument was so ambiguousl}^ worded 
 that the consideration appeared to be made up of two 
 considei'ations, 07ie of wliicli ivas sufficient^ and the other 
 was not, it was held that the instrument was invalid.^ 
 Where the consideration, expressed in the instrument of 
 guaranty-, was that the plaintiff would withdraw '' the 
 promissory note," parol evidence was admitted to show 
 Avhat promissory note was meant; for here the parol 
 evidence was only recjuired to identify the subject-matter 
 of a written instrument, and this is alw^ays admitted.'* 
 
 In Edwards v. Jevons,* the memorandum to satisfy 
 the statute, was in the following words: "In considera- 
 tion of Messrs. E. R. <fe Co. giving credit to Mi'. D. J., 
 I hereby engage to be responsible to and pay any sum 
 not exceeding 120/. due to Messrs. E. R. &> Co. by D. J." 
 The court admitted extrinsic circumstances in evidence, 
 to show that the words "o-ivino; credit" were intended 
 to ap})ly to a particular ci'edit agreed u-pon, and that the 
 guaranty therefore disclosed a good consideration, and 
 was not bad for uncertainty, f 
 
 In Goldshede v. Swan,^ J parol evidence was ad- 
 
 ' 3 Brod. & B. 211. See also Bateman v. Phillips, 15 East, 
 
 'Kaik(s V. Todd, 8 A. A E. 846; 272. 
 Cole V. Dver, ft L. J. Ex. 109 ; but s.-e * 8 C. B. 436 ; 14 Jur. 131 ; 19 L. J. 
 
 Bainbridgc v. Wade, 16 Q. R. 89 ; Steele C. P. 5n. 
 V. Hoe, 19 L. J. N. S. (Q. B.) 89. ' 1 Exch. 154. 
 
 ° Sbortredc v. Cheek, 1 A. <fe E. 5'7. 
 
 * Thomas v. Dolphy, 83 Md. 373. 
 
 tid. 
 
 X Sec p. 33uote*; p. 184 note *.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 1S7 
 
 mitted to explain the meaning of the words " you having 
 tliis day advanced," which appeared in a guaranty, and 
 whicli may mean, either in consideration that you have 
 this day advanced, or in consideration that you shall 
 have this day advanced. 
 
 In Bainbridge v. Wade,^ the court uphehl an in- 
 strument of guaranty, which, explained hy the circum- 
 stances stated 171 the declaration^ showed a good con- 
 sideration for the prouiise of the defendant.^ 
 
 The object of the statute of frauds is to reduce con- 
 tracts to a certainty, in order to avoid perjury, on the 
 one hand, and fraud on the other. Consequently, both 
 in equity and at law, where an agreement has been re- 
 duced to such a certainty, and the substance of the stat- 
 ute has been complied with, in the material part, that 
 is sufficient.^ 
 
 It is necessary, in order to satisfy the statute of 
 frauds, that the names of the parties to the contract of 
 guaranty should appear in writing."^* And, it seems, 
 
 ' 16 Q. B. 89. Tanner v. Moore, 9 Q. B. 1 ; Biishell v. 
 
 'In the following cases, also, the Beavau, 1 Bing. N. C. lOo; Saunders 
 
 question for the consideration of the ?'. Wakefield, 4 B. & Aid. 595; Wain V. 
 
 cjurt was, whi'ther i\\Q covsideraiion^ui- Warlters, 5 East, 10. 
 
 ficieutly appeared on the face of the in- ^ Per Lord Chancellor Ilardwicke, in 
 
 striiment of guaranty. Price?'. Richard- Welford v. Beazeley, 3 Atk. 50;j. 
 
 son, 15 M. <& W. 5;:19 ; Emmett?'. Kearns, " Williams v. Lake, 29 L. J. Q. B. 1. 
 
 5 Bing. N. G. 559 ; Boehui v. Campbell, See also Williams v Byrnes, 2 N. R. 47 ; 
 
 3 Moo. 15 ; Peate v. Dicken, 1 C. M. & and Champion v. Piummer, 1 N. R, 252. 
 R. 422; Pace v. Marsh, 1 Bing. 216; 
 
 * The rule generally appears to be the same in this couutry, that the 
 written memorandum must contain the names of both parties to ths contract 
 of guaranty. It is not sufficient that it contain only the name of the guaran- 
 tor or the debtor, it must also contain the name of the party who33 debt 
 is guaranteed. Farwell ?). Lowther, 18 111. 252; Waterman «. Meigs, 4 
 Cush. 497; Sheid t-. Stamps, 3 Sneed, 172; Nichols t'. Johnson, 10 Conn. 
 192; Sherburne ». Shaw, 1 N. H. 187; Webster v. Ela, 5 N. II. 540; but 
 see, especially, Lawrason v. Mason, 3 Cranch, 493, where the Supreme 
 Court of the United States held that a letter as follows : " Alexandria, 28th 
 Nov., 1800. Mr. James McPherson: Dear Sir,— We will become your
 
 188 THE LAW OF GUARANTIES. 
 
 that tlie names of tlie parties to a contract, within the 
 statute of frauds, nuist appear, as S2ich, on the face of 
 the contract, and not merely as descriptive of the sub- 
 ject-matter of the contract.* ■ In order to satisfy the 
 statute of frauds, it is not, however, necessary tliat the 
 memoi'andum should be addressed to the other contract- 
 ing j arty.- Thus, where a guaranty was addressed to 
 the attorney for the plaintiff, by the defendant, it w^is 
 held tliat tlie plaintiif was entitled to the benefit of it.^ 
 
 Moreover, it has been held that a guaranty, not ad- 
 dressed to anybody, wnll inure for the benefit of those 
 to M'hom, or for whose use it was delivered.^ It has 
 also been held, that a guaranty addressed to one part- 
 ner will inure for the benefit of all, if there be evidence 
 that this was intended.^ ^'■■ 
 
 With regard to the signature to a guaranty, it is to 
 be observed, that such signature may be either by the 
 
 * Vandenbergh v. Vandenbergh, L. ' Batcman v.. Phillips, 15 East, 272. 
 
 R. 1 Ex. 316; but see 2 Sm. L. (J. 6th * Widtoii v. Dodson, 3 C. & P. 162; 
 
 ed. p. 2o5, where this case appears to be but seeWiiliaras v. Lake, 29 L. Q. J. B. 1. 
 questioned. ^ Garrett v. Haudley, 4 B. & C. 664 ; 
 
 ^ Gibson V. Holland, L. R. 1 C. P. 1. and Walton v. D&Mon, supra. 
 
 surety for one luindred and thirty barrels of corn, payable in twelve 
 months. (Signed.) Lawrason & Smoot," would support an action of as- 
 sumpsit against the signer, by any person who, upon the faith of the 
 same, gave credit for the corn to the person to whom it was addressed. 
 
 " Letters of credit," said Pratt, J., in Union Bank v. Coster, 3 N. Y. 
 203, " are of two kind.?, general and special. A special letter of credit 
 is addressed to a particular individual, by name, and is confined to him, 
 and gives no other ])crson the right to act ujjon it. A general letter, 
 on the contrai7, is addieesed to any and every person, and therefore gives 
 any peison to whom it may be shown, a right to advance upon its credit. 
 A privity of contract springs up between him and the drawer of the let- 
 ter, and it becomes, in legal tflect, the eame as if addressed to him by 
 name.' Russel v. Wiggins, 2 Story R. 214; Bulkhead v. Brown, 5 Hill, 
 641 ; Duval v. Trask, 12 Mass. 154 ; Carnegie v. Morrison, 2 Mete. (Mass.) 
 381 ; Adams v. Jones, 12 Pet. 207. 
 
 * See Lawrason r. Mason, 3 Cianch, 492, and Union Bank v. Coster's 
 Executors, 3 N. Y. 203, relerred to in note *, supra.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. ISO 
 
 "party to be clifirgcvl" or hy his agent. The "party to 
 be charged '' onhj^ 'need sign/ And, on this principle, 
 a written proposal containing tlie terms of a proposed 
 contract, signed by the defendant, and verbally assented 
 toby the plaintiff, is a sufficient agreement to satisfy the 
 4th section of the statute of frauds.^ So, a guai-anty 
 signed by the defendant and acted upon by the plaint- 
 iff, without any express verbal or written acceptance of 
 it, is sufficient.^ 
 
 When the signature to a guaranty is not by the 
 principals themselves, but by an agent, it is not neces- 
 sary that any particitlar formalities should be com})lied 
 with in the appointment of such agent. Thus, the 
 agent's authority need not l)e in writing.^ '^^ It appears, 
 however, that such agent cannot delegate his authority 
 to another, though, if he do so, it would seem that the 
 principal may ratify the act.^ A subsequent recognition 
 of the act of an agent signing an agreement required 
 
 ' See Cliitty on Contracts, 9th ed. p. Coles i'. Trccotliick, 9 Ves. 2S4, 250; 
 
 490. Moi'tlock V. B Her, 10 Ves. 292, 311. 
 
 ' Smitli V. Neale. 2 ('. B. N. S. 67. See also Stansfield v. Johnson, 1 Esp. 
 
 ' Liverpool Buroug'h Biinlcing Co. v. 101; Bucker v. (.'amaytr, cited in Fell 
 
 Ecc'.ed, 4 H. <t N. i.Vd; 28 L. J. Ex. on Gnaiaiiti s, 2d ed. p. 87; Clemau v. 
 
 \-l-l. Cooke, 1 Sch. & Lef. 22. 
 
 " Enimerson V. Ileelis. 2 Taunt. 38: ^ Blore i'. Sutton, 3 Mer. 236. 
 
 * Law-rence v. Taylor, 5 Hill, 107 ; Mortimer v. Cornwall, 1 Floff. Ch. 351 ; 
 McWhorter ». McMahan, 10 Paige, 386; Cbamplin v. Parish, 11 Paige, 
 405; Coleman ».Garrigues, 18 Barb. 60; Worrall v. Munn, 5 N. Y. 229; 
 Turnbull v. Trout, 1 Hall (N, Y.) 336, (374); Ewing v. Tees, 1 Binn. (Penn.) 
 450; Northampton Bank *». Pepooii, 11 Mass. 288; Long r. Oolburn, Id. 
 97; McComb v. Wright, 4 Johns. Ch. 667; Shaw v. Nudd, 8 Pick. 9; 
 Stackpole v. Arnold, 11 Mass. 27; Botts ®. Cozine, 1 HofF. Ch. 80; Purcell 
 V. Potter, Anth. N. P. 310 ; Wood v. Albany &c. R. R. Co. 8 N. Y. 16(> ; 
 Van Ostraud v. Reed, 1 Wend. 424. Where the facts are undisputed, 
 either as to authorization or r<itification by the principal, the authority 
 of an agent to bind his principal, is a question of law for the court. 
 Gulick r. Grover, 33 K J. L. 4G3.
 
 190 Tin: LAW of guaranties. 
 
 by the statute of fraiuls to be in wiitlng, would seem 
 to be sufficient to charge the principal.^ And it is not 
 necessary that a person signing a guaranty should ex- 
 pressly sign as agent. For the statute of frauds does 
 not, it seems, exclude parol evidence, that a \Yritten con- 
 tract was made by a, person as agent only for another.^ 
 And it is not necessary that a person signing .an instru- 
 ment should sign the name of his principal. In such 
 cases, however, the agent cannot defeat an action on the 
 instrument by proving that he signed only as agent for 
 another, for this would, by discliarging the agent, vio- 
 late the rule of law, that parol evidence is not admissi- 
 ble to contradict a written instrument.^ A j^erson may, 
 however, show, l)y way of equitable defense, that, 
 though he signed tlie instrument sued upon in his own 
 name, and without addimx that he was ae^ent for an- 
 other, yet it was agreed between himself and the plaint- 
 iff, at the time of the execution of the instrument, that 
 he was not to be liable as principal.* INIoreover, though 
 parol evidence is not admissible, on helialf of a person 
 •who has signed an instrument as principal, to show 
 that he is an agent merely, yet, it is admissible on be- 
 half of a plaintiff suing the undisclosed principal, for 
 the purpose of cltarging the latter, for this evidence is 
 consistent with the instrument.^ But the authority of 
 the agent may be countermanded at any time before a 
 memorandum of the contract is written and signed by 
 him, pursuant to the statute of frauds.'' 
 
 It is, however, necessary that the agent should have 
 
 ' Golifll V. Arclier, 2 Ad. & E. 500, * Walce v. ITarrop, 6 If. & N. 768; 
 
 E07 ; and I'llaclean »'. Dunn, 4 Bihg-. 722; and in error, 1 II. & C. 202. 
 
 Fitzmaurice r. liayley. (i K. & V,. SG8. " Wilson v. Hart, 7 Taunt. 295; and 
 
 '^ Wilson I'. Hart, 7 Taunt. 20.1. remarks on this case at p. 361 of 2 Su). 
 
 ' liig-g-ms V. Senior, 8 A. A E. 834; L. C. Gtli ed. 
 
 and see 2 Sm. L. C. Gth ed. notes to ' Farmer ?;. Robinson, cited in a note, 
 
 Tiioiajson v. Davenport. 2 Canij). p. 339.
 
 MEilOLlANDUM TO SATISFY STATUTE OF FRAUDS. 191 
 
 some antliority to bind tlie defendant. On the one 
 hand, if he have not, the principal is not bound at all."' 
 Thus, a memorandum, written by the plaintiff's clerk, 
 in the presence of the defendant, that " the latter had 
 called to say that he would be responsible for goods 
 delivered to Mr. H.," is not a sufficient undertaking 
 within the statute of frauds.^ But in Watkins v. Vinee,'^ 
 it was held by Lord Ellenborough, at A^isl Prlus^ that 
 the son of the defendant, aged sixteen years, who was 
 proved to have signed for his father in three or four 
 instances, and to have accepted bills for him, was a suf- 
 ficient agent to sign a memoranduiu of guaranty. 
 While, thu-, on the one hand, a principal is not baunl 
 by a signature made by a person who has no authority 
 to sign, on the other hand, liability may personally 
 attach to a person so signing. For, upon the other 
 hand, a person signing a contract as agent for another, 
 without any authority to do so, exposes himself to legal 
 liability, varying according to circumstances of each 
 particular case. If there was no principal existing at 
 the time who could be bound, and the contract would 
 be wholly inoperative, unless binding on the ])erson 
 who signed it, the agent signing it is personally liable 
 upon it.^ If, however, there was a person existing at 
 the time who could (but did not) authorize the agent 
 to sign, and who could he hoiind^ the agent will be liable 
 
 ' Dixon V. Tiroomfield, 2 Chit. 205. == Kelner v. Baxter, L. R. 2 C. P. \ni. 
 
 * 2 Starli. 368. 
 
 * See, generally ou this point, Patterson v. Keystone &c. Co. 30 Cal. 
 360; Youst ®. Hopkins, 24 111. 336; Miles v. Cook, 1 Grant's Cases (Peun ) 
 58 ; Ledbetter v. Walker, 31 Ala 175 ; Minor v. Willou^hby, 3 Min. 235 ; 
 Baum «. Dubois, 43 Penn. St. 300; Hutchins ®. Byrnes, 9 Gray, 367; 
 Dougliaday «. Crowell, 3 Stockt. 301; Dod.i^^c i\ Hopiiins, 14 Wis. 630; 
 Lyons v. Thompson, 16 Iowa, 63; Shutts v. Seldeu's Lessee, 3 Wall. (U. S.) 
 177.
 
 102 THE LAW OF GUARAiNTIES. 
 
 to an action on the case, for thus misi-epresenting his 
 authoi-ity ; ^ unless, indeed, he had once had an author- 
 it}-, tlie detei'niination of wliich could not be knOwn to 
 hini.^ An agent ignoraiitly or xoilfulh] misrepresenting 
 his authority, is, it seems, also liable in an action upon 
 his implied promise that he really possessed the author- 
 ity which he pretended to have;'' 
 
 The question, whether a person has authority to 
 bind another, is thus of great importance, both as re- 
 gards the liability of the alleged principal, and also 
 with leference to the liability of the person thus sign- 
 ing on another's behalf. It will, therefore, !)e well to 
 consider it in detail, and with regard to the various 
 classes of agents which exist. 
 
 A Iroher, instructed by one person to buy, and by 
 another to sell, goods, is equally the agent of both par- 
 ties.^" If, therefore, such broker, doubting the credit 
 of the purchaser, were to take the guaranty of another, 
 reduce a sufficient memorandum thereof into writing, 
 and sign it, it is conceived that he would be a sufficient 
 agent for that purpose.^ This })oint, however, seems 
 never to have been raised. 
 
 Nor does it appear ever to have been decided 
 whether an auctioveei% instructed to sell some land, and 
 receiving a guaranty for the price, instead of a deposit 
 from the i)urchasei', could act as agent of tlie person 
 
 ' Thomas v. Edwnrds. 2 M. & W. Sm. L. C. f.th ed. notes to Thornson v. 
 215; Lewis w Tsicholson, IS Q. B. oOS ; Davenport. 
 Bee iilso Sm. Merc. Law, 8ih ed. p. 160. ' '' Beujjimin's Sale of Personal Prop- 
 
 " Smoiit V. Lbery, 10 M. & W. 1. ertv, p. loi. 
 
 "Collen ?j. Wriglit, 7 E. & R 301 ; "' Fell's Law of Mercantile Gur.ran- 
 
 Simons v. Patchelt, 7 E. <fe B. 568; 1 tics, 2d ed. ]). 89. 
 
 * Edwards on Brokers, sec. 94 ; Davis v. Sliiolds, 26 Wead. 341 ; Shaw 
 r. Finney, 13 Met, 453; Lessee v. Williams, 6 Lans. 328.
 
 MEMORANDUxM TO SATISFY STATUTE OF FRAUDS. 193 
 
 giving the guaranty, and affix such person's name to 
 it.i* 
 
 One of the contracting parties cannot, it seems, act 
 as authorized agent for the other contracting party, and 
 hind him by his signature; for the agent contemplated 
 by th^ statute of frauds must be a third person.^ f 
 
 It is very difficult to lay down any rules in regard 
 to the power of one partner to bind the rest, by execut- 
 ing a guaranty in the name of the partnership firm, as 
 the nature of a partner's power or authority to bind 
 his copartners varies in each case.J It depends on the 
 
 * Ibid. 2d cd. p. 94. sect, of the statute of frauds, but are 
 
 " Farebrother v. Simmons, 5 B. & equnlly applicable t> the 4tli sect.); see. 
 
 Aid. 3:^3 ; Wright v. Dannah, 2 Camp, however. Bird v. Boulter. 4 B. <t Ad. 
 
 203 ; Sharmanw. Brandt, 40 L. J. N. S. 443, 447, and see observations in Black- 
 
 812 (which are decisions on the I'Ztli burn on Contract of Sale, p. 76. 
 
 * An auctioneer is a competent agent to sign for the purchaser of either 
 lands or goods. Priugle v. Spaukling, 53 Barb. 17; McComb v. Wright, 
 4 Johns. Ch. 659; First Baptist Church v. Bigelow, 16 Wend. 28; Morton 
 V. Dean, 13 Met. 385; Adams v. McMillan, 7 Port. (Ala.) 73; Meadows «. 
 Meadows, 3 McCord, 485 ; Doty v. Wilder, 15 111. 408 ; Cleaves v. Foss, 4 
 Greenl. 1. 
 
 Where an auctioneer inserts the name of a purchaser in his memoran- 
 dum of the sale, as the highest bidder, as the hammer falls, it has been 
 held, "in New York, to be such a signing as binds the purchaser. Mc- 
 Comb V. Wright, 4 Johns. Ch. 659 ; Coles i\ Bowne, 10 Paige, 526 ; First 
 Baptist Church v. Bigelow, 16 Wend. 28; Price v. Durin, 56 Barb. 647. 
 
 But the signing must be in a book and at the time, and not afterwards 
 from memory. Hicks v. Whitmore, 12 Wend. 548 ; Goelet v. Cowdrey, 1 
 Duer, 132. And a memorandum made at the time, of the terms of the 
 Bale, and pinned to the leaf of a book upon which the auctioneer signed. 
 was held a valid signature to bind the purchaser. Tallman v. Franklin, 14 
 N. Y. 584. 
 
 But where the auctioneer was himself the seller and the party in in- 
 terest, he will not be allowed to sign for the purchaser. Bent v. Cobb, 9 
 Gray, 397 ; Tull v. David, 45 Mo. 444. And as to guaranty by an agent, 
 seeOnley v. Van Heusen, 3 N. Y. S. C. R. (Thompson & Cook) 313; Davis 
 Sewing Machine Co. v. Lawrence, Id. 386. 
 
 t Bent V. Cobb, vU supra ; Tull v. David, uhi supra. 
 
 X Smith V. Bowles, 2 Disney, 153 ; vide page 201, note t. 
 13
 
 194 THE LAW OF GUARANTIES. 
 
 nature of tlie business carried on by the firm, or on the 
 previous course of dealing. Perhaps, the only general 
 rule on this subject, that can be laid down with any de- • 
 gree of safety, is that given by Lord Mansfield, in Hope 
 V. Gust,^ viz., " that the act of ev^ery single partner in a 
 transaction relating to the partnership, binds all the 
 otliers. Tf one give a letter of credit or guaranty*in the 
 name of all the partners, it binds all." 
 
 In Ex parte Nolte,^ the view taken by Loi-d Mans- 
 field, in Hope v. Oust, was upheld by Lord Chancellor 
 Eldon, who decided that a partner may give a guaranty 
 where the oblio;ation has reference to business connected 
 with the partnership, and where the guaranty is notified * 
 to the firm, and they do not dissent from it. 
 
 Upon the general question as to the power of one 
 partner to bind the firm by giving a guaranty, the case 
 of Sandilands v. Marsh ^ is worthy of careful considera- 
 tion. There, one Creed, a member of a firm of navy 
 agents, in consideration of the plaintiff employing the 
 firm as his agents to lay out 4,000^. in the purchase of 
 an annuity, and of a commission of 5^. pei- cent, to be 
 paid to such agents, guaranteed the punctual half-yearly 
 payment of the annuity to the plaintiff. An action 
 having been brou^^dit on this guaranty, the question 
 arose, whether Mai-sh, who was the partner of Creed, 
 who gave the guaranty in the name of the firm, was 
 bound by it. At the trial the learned judge left it to 
 the jury to say, whether, under the circumstances of the 
 case, Marsh was cognizant of the transaction as to the 
 purchase of the annuity, though he might be ignorant 
 as io the facts of the guaranty itself, telling them that 
 
 ■ Sitings at Guil.lball after Micliael- ' 2 Glyn cfe.J. 295. 
 
 mas Term. 1774. Tlis case is cited by ' 2 13. tt Akl. G73. 
 
 La\vrence,in SliircfT i. \\ ilksand others, 
 1 East, at p. 53.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 11^5 
 
 in that case, Le tliouglit tlie defendant was liable. The 
 jur}^ found this fact in the affirmative, and the plaintiff 
 obtained a verdict. Leave to move was given, and a 
 rule nisi obtained. In discharging this rule, Abbott, 
 C. J., said: "Two material questions have been made; 
 the first ^ of which, and the most important and exten- 
 sive in its consequences, is, whether this defendant shall 
 be held to be bound by the guaranty given without 
 his knowledge by his partner Creed, and if the verdict 
 of the jury finding him to be so bound, be not sustain- 
 able, it will be very dangerous hereafter to deal with a 
 partnership ; for the business in each department of a 
 firm is generally transacted by one partner only. It 
 has, undoubtedly, been held that, in a matter wholly 
 unconnected with the partnership, one partner cannot 
 bind the others. But the true construction of the rule 
 is this, that the act and assurance of one partner, madb 
 with reference to business transacted by the firm, will 
 bind all the partners. In this case, the proper lousiness 
 of Mai'sh and Creed was to receive the money due from 
 the navy board to their customers, and their dividends 
 in the public funds. ""^' * '^' It was no part of their 
 ordinary business to guarantee annuities or to lay out 
 the moneys of their customers in the purchase of them. 
 Under these circumstances the original proposal was 
 made by Creed, in answer to which the joint power of 
 attorney Vv^as transmitted to Marsh and Creed, under 
 which the stock was aftei'wards sold. Now that sale 
 must have appeared in the partnership books, and if 
 that fact were doubtful, it is proved by the balance 
 stated in the accounts transmitted })y the i)artnership ; 
 that sale, therefore, and the fact thai? the proceeds had 
 
 ' The second question lias no bearing- on the subject now under discussion.
 
 196 ■ TIIK LAW OF GUARANTIES. 
 
 bet'ii laid out in the ])urehase of an annuity, either were 
 actually known, or ought to have been known by Marsh. 
 Now, if that whole transaction were known to him, the 
 guaranty, which is connected with it, becomes, in point 
 of law, an assurance made by one partner with reference 
 to ))usiness transacted by both; and, according to the 
 rule previously stated, it will l)ind both. To illustrate 
 this position, a case may be put where two persons, in 
 partnership for the sale of horses; should agree between 
 themselves never to warrant any hoi'se ; yet, though 
 this be their course of business, there is no doubt 
 that if, upon the sale of a horse, the property of the 
 partnership, one of them should give a warranty, the 
 other would be thereby bound." In the same case, 
 Bayley, J., in his judgment, says: "It is true that one 
 partner cannot bind anothei' out of the regular course 
 hi' dealing by the firm. But where the assurance has 
 reference to business transacted by the partnership, 
 although out of the regular course, it is still within the 
 scope of his authority, and will bind the firm." 
 
 In Ex parte Gardom,^ Gardom being applied to })y 
 Thomas Tapp, of Manchester, to sell him cotton twist, 
 desired a reference. Accordingly, Goodwin, of the 
 house of Hargreave & Goodwin, verbally informed Gar- 
 dom that their house would guarantee what twist Gar- 
 dom might sell to Tapp, up to the 1st of January, 1808, 
 as Tapp was manufticturing goods for them. In due 
 course the following engagement was drawn up in writ- 
 ing, to be signed by Hargreave and Goodwin: "We 
 acree and enj^asje to cfuarantee for what twist Thomas 
 Tapp may purchase from you from the 28th ult. to the 
 1st of January, 1B08. Hargreave & Goodwin." That 
 
 ' 15 Ves. 286.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 107 
 
 paper was signed by Goodwin only. A renewal of the 
 guaranty afterwards took place, in similar terms. Sales 
 took place under both guaranties. A commission of 
 bankruptcy issued against Tapp, and another against 
 Haro-reave & Goodwin. Under that commission Gar- 
 dom offered to prove the residue of his demand upon 
 Tapp, but proof was rejected upon three grounds, one 
 of which waSythaf the signature of Goodwin alone could 
 not bind the partnership. This ground, however, 
 was ultimately given up, whereupon Lord Chancellor 
 EKlou said: "The objection, that the partnership was 
 not bound by the signature of one partner, is properly 
 given up." 
 
 It appears that, in the case of ordinary merchants, 
 one partner has no incidental authority to bind another 
 in the name of 'the firm, by a guaranty, given out of the 
 course of ordinary business. This was decided in Dun- 
 can V. Lowndes.^ There, a guaranty was given for the 
 due payment of a bill of exchange to the plaintiff, for 
 670^. 15s. accepted by Dickinson &, Co., for the price of 
 goods which the plaintiff had sold them. It appeared 
 that the guaranty was signed by the defendant Lowndes, 
 who was one of the partners, in the name of the partner- 
 ship firm. Lord Ellenborough held, that it was neces- 
 sary to prove that Lowndes had authority from his 
 copartner to execute the guaranty in ,the name of the 
 partnership firm, as it was not usual for merchants, in 
 the common course of business, to give collateral en- 
 gagements of the sort in question. " It is not incidental 
 to the general power of a partner to bind his copartners 
 by such an instrument." It was also held, that proof of 
 a subsequent recognition of the guaranty by the part- 
 
 ' 3 Camp. 477.
 
 198 Tlir. LAW OF GUAUANTIER. 
 
 ner who did not actually sign it, as well as a prior com- 
 mand or proof of a previous course of dealing in which 
 such guaranties were given, and to which all the part- 
 ners were privy, would be sufficient evidence of an 
 authority to execute the guaranty in the name of the 
 partnership firm. 
 
 So, in Crawford v. Stirling,^ C]'awford Sl Co., the 
 plaintiffs, were manufacturers and merchants at Glas- 
 gow, in Scotland; but Andrew Mitchell, one of the 
 partners, resided in London, and conducted the business 
 of the house there. One Kirkpatrick, who lived in 
 Liverpool, having occasion for goods in the course of 
 bis trade, in which the defendant dealt, procured the 
 guaranty of Mitchell to the defendant, on account of 
 the house of the plaintiffs, for which the house received 
 an allowance of 2^ per cent. There was evidence of 
 adoption of the guaranty by the firm of Ci'awford &> 
 Co. It was held, that this guaranty bound the entire 
 firm. Lord Ellenborough said : " A guaranty given by 
 one partner in the partnership's name, unless it was in 
 the reo-ular line of business, could not bind the other 
 partners ; but if they afterwards adopted it, and acted 
 on it, it should bind them." 
 
 In Brettell v. Williams,"^ the defendants, who were 
 in partnership as railway contractors, contracted with a 
 railway company, to do certain works. U. Sl R. made 
 a subcontract with the defendants, to do part of the 
 work, and, for that purpose, requiring coals to make 
 bricks, one of the defendants, without the knowledge or 
 assent of his copartners, signed in the name of the firm, 
 and delivered to the plaintiffs a guaranty, not addressed 
 to any person, for payment of coals to be supplied to U. 
 
 * 4 Esp. 207. ' 4 Exch. 628.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 199 
 
 & K. Ifc was held, that the guaranty did not bind the 
 firm of railway contractors, there being no -evidence that 
 it was necessary for carrying into effect the partnership 
 contract, or tliat the other partners had adopted it. 
 Baron Parke, in his judgment in the case, ably reviews 
 the authorities on t]»e subject we are dealing with. He 
 says : " That one of two partners engaged in business as 
 merchants had not, by reason of that connection alpue, 
 power to bind the other by a guaranty, apparently un- 
 connected with the partnership trade, was decided by 
 Lord Ellenborough,in the case of Duncan v. Lowndes;^ 
 and the Court of Queen's Bench gave a similar decision 
 in that of Hasleham v. Young,^ where the defendants 
 were in partnership as attorneys. No j)i'oof was given 
 in either of these cases of the previous course of dealing 
 or practice of the partners, which, it is admitted in both 
 cases, might be sufficient to prove a mutual authority ; 
 nor was any evidence given of the usage of similar part- 
 nerships to give such guaranties ; nor was there any of 
 a recognition and adoption by the other partners which 
 would have the same effect. The case of Sandilands v. 
 Marsh ^ proceeded on the latter ground. In the present 
 case, no evidence was given to show the usage of the 
 defendants in this particular business, or of others in a 
 similar business ; nor was there any evidence of the 
 sanction, by the other defendants, of the act of their co- 
 partner; for a witness, who was called to prove the 
 latter fact, would not, on cross-examination, swear that 
 he was authorized by them to write a letter, which, if 
 proved to have been so written, would have been sufii- 
 cient. Simply as railway contractors they could not 
 have any such power. The only question then is, 
 
 ' 3 Camp. 477. " 5 Q. B. 836. » Ante, p. 194.
 
 TO no S TO. * 
 
 200 THE LAW OF GUARANTIES. 
 
 whether they had it in this particular case, in conse- 
 quence of itSt ^~»eing a reasoriahle mode of carrying into 
 effect an acknowledged partnership contract. One part- 
 ner does caninumicate to the other, simply by the crea- 
 tion of that relation, and as incident thereto, all the 
 authority necessary to carry on their partnership in its 
 ordinary course,^ and all such authority as is usually 
 exercised by partners in the same sort of trade, but no 
 more. To allow one partner to bind another by con- 
 tracts out of tlie apparent scope of the partnersliip 
 dealings, because they ^vere reasonable acts towards 
 effecting the partnership purposes, would be attended 
 with great danger. Could *ne of the defendants in this 
 case have bound the others by a contract to lease or 
 ouy lands, or a coal mine, though it might be a reason- 
 able mode of effecting a legitimate object of the part- 
 nership business? Our opinion is, that one partner 
 cannot bind the others in such a case, simply by virtue 
 of the partnership relation. In the ease of ex parte 
 Gardom,^ this point was not fully discussed, but given 
 up by Sir S. Romilly, who had two other objections to 
 the guaranty, on which' he could rely, and on one of 
 which he succeeded. Besides, we ai-e not sufficiently 
 informed by the report whether there might not have 
 been some peculiar circumstances in the case which 
 caused the abandonment of that point. We do not 
 think that is an authority sufficient to establish the 
 doctrine now contended foi-.'" * 
 
 Similar doctrines are applied in the case of other 
 business, such as attorneys. Thus, in Hasleham v. 
 Young,^ one of two attorneys in partnership, in order to 
 procure the release of a client from custody, gave an 
 
 ' See Hawtainet;. Bourne, 7 M. & W. ' Ifi Ves. 286. See ante, p. 196. 
 
 -595. • ^ 5 Q. 11 8^6.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 201 
 
 undertaking in the name of the firm, to pay the debt 
 and costs on a day named, and it was held that the firm 
 was not liable.'"' It did not appear that the guaranty 
 was any advantage to the firm; there was no evidence- 
 that the guaranty was given in pursuance of the ordi- 
 nary j^raetice of the parties, and, as Patterson, J., said, 
 " Certainly such a transaction is not in the usual course 
 of the business of attorneys." , 
 
 In Payne v. Ives,^ Abbott, C. J., left it to the jury to 
 say whether a guaranty had been given, with the })rivity 
 and consent of all the partners. There Mann, of the 
 firm of Ives, Sargon &, Mann, gave a guaranty in his 
 own handwriting, and signed by him only, on the part 
 of the firm, to Messrs. Payne &, Co., whereby Messrs. 
 Ives, Sargon & Manu undertook to indorse any bill or 
 bills which one John Stubbs might give to Messrs. 
 Payne & Co., in part payment of an order for certain 
 goods then being executed for him. f 
 
 ' 3 D. & R. 664. 
 
 * See Cockroft v. Claflin, 64 Barb. 464 ; Easter «. Farmers' Nat. Bank, 
 57 III. 215. 
 
 t The rule undoubtedly is, in this country, that a partner cannot bind 
 his copartners outside of the ordinary business of the firm, and without ex- 
 press authority to do so. "If one partner gives a letter of credit or 
 guaranty in the name of the partnership, it is aot to be treated as of course 
 binding on the partnership, for it is not a natural or necessary incident in 
 all sorts of partnership for one partner to bind his copartners by a guaranty. 
 It must be shown to be justified, either by the usages of the particuhxr 
 trade or business, or by the known habits of the particular partnership, or 
 by the express or implied approbation of all the partners in the given case."' 
 Story on Part. sec. 127 ; McQuewans v. Ht.mlin, 35 Penn. St. 517; Scott v. 
 Bandy, 2 Head, 197; Venable v. Lsvick, Id, 351; Hotchin v. Kent, 8 
 Mich. 526; Selden v. Bank of Commerce, 3 Minn. 166;- Charman v. 
 McLane, 1 Oreg. 339; Wells v. March, 33 N. Y. 344 ; Batterfiel i v. Hems- 
 ley, 12 Gray, 226 ; Andre^vs v. Planters* Bank, 7 Smjdes& xM 193 ; Sweet- 
 ser V. French, 2 Cush. 339; Sutton v. Irwine, 12 Serg. & Riwie, 13;
 
 202 THE LAW OF GUARANTIES. 
 
 As i'e2:ards the power of one or moi'e in a pai'tner- 
 ship to l)in(l the whole firm l)y a guaranty tuider seal^ 
 there can be no doubt that tlie rule laid down by Lord 
 Kenyon, C. J., in Harrison v. Jackson,' would app]y to 
 such a case, namely, that a " general partnership agree- 
 ment, though under seal, does not authorize the part- 
 ners to execute deeds for each other unless a ^yct^'ticular 
 2)0iuer be given for that purpose." 
 
 It seems, moreover, that the subsequent acknowledg- 
 ment of the partner or partners, who did not execute 
 the deed, that it was executed with their autliority, is 
 not sufficient to make the instrument bindin'g upon 
 them/ "However, though' one partner \vc\^ no im2)lied 
 authority generally to bind his copartner by deed, yet, 
 if one partner execute a deed on behalf of the firm, in 
 the presence and with the consent of his cojDartners, 
 
 ' V T. R. 207. C. 141 ; Brutton r. Burton, 1 Clittt. 101 ; 
 
 'l.Collver on Partnership, 2d eel. p. but see Harvey v.. Kav, 9 B »fe C. S56. 
 309 ; Steiglitz v. Eggington, Holt, N. P. 
 
 Ilamill V. Purvis, 2 Penn. 177 ; Creamer v. Higginson, 1 Mason, 323 ; 
 Langan r. Hewett, 13 Smedes & M. 122 ; Rollins v. Stevens, 31 Me. 454. 
 
 And the rule is the same "where a partner makes or indorses a promis- 
 sory note in the firm name, without authority. Story on Part. sec. 127 ; 
 Edwards on Bills and Notes, 99 (2d ed.) ; Commercial Bank ». Warren, 15 
 N. Y. 577 ; Sweetser v. French, 2 Cush. 315 j Bell ». Fabcr, 1 Grant's 
 Cases, 31; Clayton t. Hardy, 27 Miss. 401 ; Barnard « Lapeer &c. Plank 
 Road Co. 6 ^lich. 274; Mechanics* Bank v. Livingston, 33 Barb. 458; 
 Bowman v. Cecil Bank, 3 Grant's Cas. 33; Fielden d. Lahens. 9 Bo.-w. 436; 
 Whitmore 4'. Adams, 17 Iowa, 567; Wilson v. Williams, 14 Wend. 158; 
 Nixon V. Palmer, 8 N. Y. 398 ; Ulery ». Ginrich, 57 111. 531 ; Hunt x\ 
 Chapia, 6 Lans. 139; Hayes t. Baxter, 65 Barb. 181; Potter v. Piice, 3 
 Pitts. 13G; Barrett «. Russell, 45 VI. 43; Smith v. Hill, Id. 90; Ross o. 
 Whitfield, 1 Sweeny (K Y.) 318; Chemung &c. B;ink v. Bradiier, 44 N. Y. 
 G80 ; Lime Rock &c. Co. v. Treat, 58 IMe. 415 ; Nat. Bank r. Ingraham, 58 
 Barb. 290; IMcElroy v. Mclear, 7 Coldw. 140; Bacon «. Hutching?. 5 Bush, 
 595; Herdrie v. Berkowitz, 37 Cal. 113; Carter^?). Pomeroy, 30 Ind. 438; 
 Davis V. Richardson, 45 Miss. 499 ; Faler v. Jordan, 44 Miss. 283 ; Sylver- 
 stcin V. Atkinson, 45 Miss. 81 ; Wilson v. Foster, 20 Ohio St. 89.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 203 
 
 that will bind the firm; in such case the sealing and de- 
 livery hy one is deemed to he the act of all? * 
 
 It seems that a guaranty given by a partnership firm 
 does not bind bind persons who subsequently l)ecome 
 members of the firm." 
 
 As regards the liability of a company, on a guaranty 
 given by its directors, it appears that the company is 
 not bound, in the absence of proof that the directors 
 liad power to give it.^ 
 
 x\s regards the, jyosition of the signature of the party 
 to be charged to a written memorandum required by 
 the statute of frauds, it appears that, provided the 
 name be inserted in an instrument in such a manner as 
 to have the effect o^ authenticating it, the requisition of 
 the act with respect to the signature is complied with, 
 and it does not matter in tvhat part of the instrument 
 the name is found."* f A mere casual introduction of 
 
 • Collyer on Partnersliip, 2(1 ed. pp. Grinding Co. 2 Ex. 711; Kirk v. Bell, 
 
 309, 310; BdU v. Dunsterville, 4 T. R. 16 Q. B! 29 a. 
 
 313; Kmvi ?^. Burn, 3 Ves. 573; Smith ^ O/ilvie v. Foljambe, 3 Mer. 53; 
 
 V. Winter, 4 M. & W. 454. Caton v. Caton, L. R. 2 11. L. 127; see 
 
 ''Fell's Law of Mercantile Guaran- also, Lobb v. Sranley, 5 Q. B. 574; 
 
 ties, 2d ed. fp. 120, 121. Simnaonds v. Humble, 13 C. B. N. S. * 
 
 ' III re Era Life Assurance Society, 1 258; Propert v. Parlcer, 1 Russ. & My. 
 
 W. N. 309 ; see also, Ridley v. Plymuuth 625. 
 
 * Swan t'. Stedman, 4 Met. 548; Purviance n. Sutlierland, 3 Oliio St. 
 478; Potter v. McCoy, 26 Peun. St. 458; Freeman v. Carhart, 17 Geo. 
 348; Little v. Hazzard, 5 Harr. 291 ; Shirley v. Fearne, 33 Miss. 653; Lowry 
 V. Drew, 18 Tex. 786; Haynes v. Seachrest, 13 Iowa, 455; Wilson v. Hun- 
 ter, 14 Wis. 683; Dillon v. Brown, 11 Gray, 179; Arnold v. Stevenson, 3 
 Nev. 634; Gibson i'. Warden, 14 Wall. 244; Baldwin ». Richardson, 33 
 Tex. 16. 
 
 It seems, however, that one partner may bind the firm by a chattel 
 mortgage. Hawkins v. HasliDgs Bank, 1 Dill. 463. 
 
 If a partner signs the firm name with a seal to a contract, to the valid- 
 ity of which a seal is not essential, he does not bind the firm by the 
 mere fact that he uses a seal. Hoskinson v. Elliot, 63 Penu. St. 393; 
 Schmertz r. Shreeve, Id. 457. 
 
 t Penniman v. Hartshorn, 13 Mass. 87; Classen x\ Bailey, 14 Johns. 
 484 ; People v.-. Murray, 5 Hill, 408 ; James v. Patten, 6 N. Y. 9 ; Duvis v.
 
 204 • TllE LAW OF GUARANTIES. , 
 
 the name woiilcl not, however, amount to a sufficient 
 si <r nature.^ 
 
 Where the party to be charged has not signed the 
 instrument in tlie nsual place, the question is always 
 open to the jury, whether the party, not having signed 
 it regularly at the foot, meant to be bound by it as it 
 stood, or whether it was left so unsigned because he re- 
 fused to complete it.^''^ "Where it is obvious that the 
 parties did not intend that the agreement should be 
 perfect till their names ^vere added at the foot, the stat- 
 ute of frauds will not be satisfied.^ 
 
 As regards the land of signature, we may observe 
 that a mark by a marksman f is a sufficient signature of 
 an agreement in writing, w^ithin the statute of frauds.* 
 There must, however, be a signing, i. <?., an actual sig- 
 nature of the name, or something intended by the 
 writer to be equivalent to a signature; for it is not 
 enough that the party may be identified ; the statute 
 requires him to sign.^ It seems that a signature V)y 
 
 . ' See Stokes v. Moore, 1 Cox, 219. ' Hubert v. Treherne, 3 M <fe G. 74.3. 
 
 'Per Lord Abinger, C. B., in John- " Selby v. Seiby, 3 Mer -1; see also 
 
 Bon V. Doilgscin, 2 M. & W. 653, 659; Hubert v. Moreiu, 12 Moore, 210, 219; 
 
 see also, Ki ij^ht v. Crockforcl, 1 Esp. Baker v. Dering, 8 A. & E. 94. 
 
 190, 193. a;icl S.iunderson v. Jackson, 2 ^ Ibid. 
 B. & P. 238, 2;J9. 
 
 Shields, 6 Wend. 341 ; Cbamplin v. Parish, 11 Paige, 405 ; Coles v. 
 Bowne, 10 Paige, 526. 
 
 * As to the reformation of instruments in writing, see Cady v. Potter, 
 55 Barb. 463 ; Mills v. Lewis, Id. 179; 37 How. Pr. 418; Boardman v. Da- 
 vidson, 7 Ai)V). Pr. (N. S.) 439 ; Edmonds' Appeal, 59 Penn. St. 220; Porter 
 V. Jones, 6 Coldw. 313; Lyidsey v Lindsey, 56 111, 79; August v. Sees- 
 kind, 6 Cold. 106; Miner r. Hess, 47 IlL 170. 
 
 But the mistake must be the mistake of both parties ; the mistake of 
 one is not suflicient to authorize a court to reform it. ^Nlills v. Lewis, 55 
 Barb. 179; 37 How. Pr. 418. 
 
 t Meehan v. Rowke, 2 Bradf. 385 , Campbell v. Logan, Id. 90 ; Morris o. 
 Kniffin, 37 Barb. 336 ; Barnard v. Heydrick, 49 Barb. (,N. Y.) 62.
 
 MEMORANDUM TO SATISFY STxVTUTE OF FRAUDS. 205 
 
 initials is sufficient.^ * However, the christian name 
 may be set out at length, denoted by initials, or left out 
 altogether.^ A printed signature would seem to be 
 sufficient, f Certainly this is the case where there is 
 subsequent recognition, or where part of the instru- 
 ment is in the handwriting of the party.^ It seems to 
 be doubtful whether a signature by a person mentioned 
 in the memorandum as a contracting^ party, though he 
 profess to sign as a witness, is sufficient.^ The mere al- 
 tering of a draft is not a sufficient signature, because 
 the party clearly did not intend to be bound thereby.^ 
 Where, however, a parol agreement in writing was en- 
 tered into, and a di'aft of it was prepared, and, by in- 
 dorsement on this draft, the defendant admitted the 
 agreement, but excused himself from performing it, it 
 was held that the 4th section of the statute of frauds 
 was satisfied.^ t 
 
 It has recently been decided that the signature of 
 the party to be charged to instructions for a telegraphic 
 message, accepting the plaintiff's written offer, is a suf- 
 ficient signature under the statute of frauds.'^ ;|; 
 
 ' Chichester v Cobb, 14 L. T. N. S. Archer, 2 Ad. k E. 500; 'and see Ben- 
 
 433, Q. B. ; Gubrie v. Woodley, 17 Ir. jamin's Sale of Personal Property, pp 
 
 C. L. K. 221 ; Jacob v. Kirk. 2'M()0. & 190, 191. 
 
 R. 221 ; SwL'et v. Lee, 3 M. & G. 452 ; " Hawldns v. Holmps, 1 P. "W. 770. 
 
 Parker v. Smith, 1 Coll. 608. " Sliippey v. DGiiison, 5 Esp. 190; 
 
 ^ Lobb V. Stanley, 5 Q. B. 574. 581, see also, Backwortli v. ¥011112;, 20 L. J. 
 
 582; see 2 Sni. L. C. 6th ed. p. 233. Ch. 153 ; Jnckson v. Lowe, 1 Bino;. 9 ; 
 
 ' Schneider v. Norris, 2 M. & S. 286 ; Warner v. William-ton, 25 L J. Ch.'602 ; 
 
 see also, Saunderson v. Jackson, 2 B. <fe Bailey v. Sweeting, 30 L. J. 0. P. 150; 
 
 P. 238. Gibson v. Holland, L. R. 1 C. P. 1. 
 
 * Welford v. Bazeley, 1 Ves. sen. 6 ; ' Godwin v. Francis, L. K. 2 C. P. 
 
 Coles «;. Trecothlck, 9 'Ves. 234, 250; 295; M'Blain r. Cross, 25 L. T. N. S. 
 
 Blore V. Sutton, 3 Mer. 237 ; Gosb^ll v. 804. 
 
 * Sanborn v. Flagler, 9 Allen, 574 ; Palmer v. Stephens, 1 Den. 471. 
 
 + Merrittc. Classon, 12 Johns. 103 ; 14 Johns. 484;^^^ contra^ Zuchrisson 
 ». Poppe, 3 Bosw. 171. 
 
 \ Dunning v. Roberts, 35 Barb. 463. The general rules as to what will 
 constitute a signature under the statute of frauds arc the same in both
 
 20G THE LAW OF GUARANTIES. 
 
 • 
 
 It is not necessary that the note in writing, to 1)e 
 binding under the statute, sliould be contemporary with 
 the agreement. It is sufficient if it had been made at 
 any time, and adopted l)y tlie party afterwards, and 
 thfU anything under tlie hand of the party, ex])ressing 
 tliat he, had entered into the agreement, will satisfy the 
 statute, which was only intended to protect persons 
 from having paroi agreements imposed on them. * 
 
 To satisfy the statute of frauds, it is not necessary 
 that the agreement of the parties, should be contained 
 in one written instrument. It may be contained in 
 several different papers, which, taken together, form the 
 agreement between the parties.- But these difl'erent 
 ]iapers must be, in themselves, and on the face of them, 
 connected, either in express words or by containing those 
 which are capable of an interpretation which, in its 
 sense, connects the diffVirent instruments. Parol evi- 
 dence is not admissible for the })urpose of connecting 
 them." 
 
 In Bluclv V. Gompeitz,"* the defendant gave to the 
 plaintiif a guaranty, signed by the defendant. Subse- 
 
 ' Per Lord EUenborough, in Shippey Coe v, DuffielJ, T Voo. 2r)2. See also 
 
 V. Denisoii, 5 Esp. 190, 193. See also Jiukson r. Lowe, 1 Moo. 219; Dobell v. 
 
 Tawnev r. Crowtlier, 3 Bro. C. ('. 161 ; Hutchinson, 3 A. dr E. 355: Hainmer- 
 
 Bradlord v. Roulslon, 8 Ir. C. L. R. N. sley v. Barcn de Biel, 12 CI. &, F. 45; 
 
 S. 4(18. De Bert v. Thompson, 3 Beav. 4Y1 ; 
 
 ^ t'tead V. Liddard, 8 Moo. 2 ; Red- Jiidgway r. 'Whn.ton, 6 H. L. 238; 
 
 head »•. C.-^ter, 1 Stark. )4; Sandihmds Ogiivio z'. Foljanibe, 3 Mer. 53 ; Horsey 
 
 i\ Marsh, 2 h. & Aid. 680; Buxton v. v. Graliam, L. R. 5 C. P. i); Jones 
 
 Rust, L. R. 1 Ex. 1 ; Hemming v. IVriv, v. Williams, 1 M. & W. 493. 
 2 M. <fe P. 375 ; Hare r. Richards, 5 M. M Sm. L. C. 6tii ed. p. 283. See 
 
 & P. 235 ; Brittle v. Wihiams, 4 Exch. Wilkinson v. Evans, L. R, 1 0. P. 407. 
 623; Maciory v. Scott, 5' Exch. 907; * 7 Excli. 8G2. 
 
 countries. One maj authorize anotlier to siirn in his presence. Williams 
 V. Wood^-, 16 Mel. 220. A substantial signing, although not literal and 
 formal, is sullicient. Welford c. Beazley, 3 Atkyns. 50:}. As where the hand 
 is guided by another. (Stevens v. Van Cleve, 4 Wash. C. C. 262), even if no 
 express request for assistance is proved. Yandruff t. Rinehart, 29 Penn. 
 St. 232.
 
 MEMORAXDUM TO SATISFY STATUTE OF FUAUDS. 2()7 
 
 qiiently, it was discovered that there was a mistake in 
 the instrument of guaranty. This mistake was accord- 
 ingly rectified by an indorsement written across the 
 guaranty itself by the defendant, but signed by the 
 plaintiff only. It was held that the instrument was a 
 valid memorandum of the contract declared on, within 
 the statute of frauds, since tlie indorsement, having been 
 made for the purpose of correcting the mistake, and be- 
 ing written by the defenclant on the same piece of paper 
 as the original undertaking, must be considered as 
 authenticated by the original signature of the defendant. 
 It is also sufficient if a signed paper refer to another 
 j)aper which is not signed, and which contains the terms 
 of the agreement between the parties.^ '^' 
 
 It may be as well to say a few words here as to the 
 stamping of an instrument of gnaranty. The instru- 
 ment of guaranty cannot be given in evidence unle^ it 
 is properly stamped. This is the case even where the 
 instrument does not state- on its face the consideration 
 for the promise.^ In Glover v. Hackett," II., being 
 tenant to E,, G. s'Q:ned the followins; document : " Au- 
 gust 2d. According to Mr. H.'s request, the land at B., 
 under Mr. E., I wdl be bound for till next Lady-day ; 
 rent. 48^. (Signed) J, G." The document being tend- 
 ered in evidence, in an action by G. against H. for 
 
 ' T-iwney v. Crowtlior, 3 Bro. CIi. ^ Whitfield v. Moojen, 1 F. <fe F. 
 
 Cas. 161 ; Allen v. Bennet, 3 Taunt. 290. 
 169; Siiun let-son v. Jackson, 2 B.,<fe P. = 29 L. J. Ex. 416. 
 
 238; Stjad v. Liddai-d, 1 Bin<,^ 190; 
 De Bert v. Tliompson, 3 Beav. 471. 
 
 * It is sUiBcient even if the agreement is not itself signed, if a letter 
 alluding to and acknowledging the agreement be signed. Gale v. Nixon, 
 6 Cow. 44.1 ; Parker v. Baker, 1 Gray, 409. But it is not sufficient that an 
 agreement be written by a party, unless he signs it. Bailey v. Ogdeu, 3 
 Johns. 339; Anderson e. Harold, 10 Ohio, 399.
 
 208 THE LAW OF GUARANTIES. 
 
 nioney paid to the laiullonl, it was lield that it ivcinii'ed 
 an agTeenient stamp. However, a guaranty in writing, 
 for the payment of goods thereafter to l)e purchased by 
 a tliird jierson to a certain amount, is within the excep- 
 lion of the stamp act " a contract for or relating to the 
 sale of goods," and need not be stamped.^ In Ilaigh v. 
 Brooks,^ the promise was alleged in the declaration as 
 liaving been given in consideration of the giving up of 
 a guaranty. Plea, that it was not given up. It was 
 held, that this guaranty could be given in evidence 
 without being stamped. Where the defendant wrote on 
 the back of .a letter of the plaintiff, an undertaking to 
 be answerable for the debt of anotlier, and which in- 
 dorsed undertaking made reference to the terms of tlie 
 agreement on the other side, it was held, in an action 
 on the guaranty, that only one stamp was required on 
 this paper.^ A guaranty for the due performance of a 
 charter-party does not require to be stamped as "a 
 charter-party ox agreement for the charter of any 
 ship, or any memorandum, letter or other wiiting be- 
 tween the captain or owner of any ship and any other 
 person for or relating to the freight or conveyance of 
 goods, cfec, on board such ship, <tc.," w^ithin 5 & G 
 Vict. c. 79, s. 2, and Schedule.* 
 
 It is sufficient if the statute of frauds has once been 
 satisfied by a memorandum in writing. Thus, before 9 
 Geo. 4, c. 14, a verhal promise was sufficient to revive 
 a liability on a written guaranty which was barred by 
 the statute of limitations.^ 
 
 It was decided in Longfellow v. Williams,^ that, al- 
 
 ' Warrington v. Furbor, 8 East, 242. = Stead v. Liddarcl, 1 Bin^;. 196, 
 
 See also Curry v. Edenscr, 3 T. R. 524 ; * Ruin v. Lane and others, L. R. 2 Q. 
 
 Watkins V. Vince, 2 Stark. 368; Wad- B. 144. 
 
 diugton V. Bristow, 2 B. <t P. 452 ; Mar- " Gibbons v. MCaslaud, 1 B. 4 Aid. 
 
 tin V. VVrigbt, 6 Q. B. 917. 690. 
 
 Ml Ad. cfe Ell. S09. • 2 Peake, N. P. R. 225.
 
 MEMORANDUM TO SATISFY STATUTE OF FRAUDS. 209 
 
 thougli a promise on a consideration not to sue out 
 execution on a judgment against another, be, at its com- 
 mencement, l)y jjarol, if it be afterwards acknowledged 
 in writing to a third party, it is not within statute of 
 frauds, sect. 4. 
 
 In a declaration against a person on a guaranty, it 
 is not necessary to state an agreement, a note, or a 
 meniorandum, or tlie terms of any suchj or the parties 
 thereto, or that it was in writing, or signed by the de- 
 fendant.^ Where a defendant pleads that the contract 
 declared uj^on was a guaranty for the debt of another, 
 and that no memorandum thereof, stating the consider- 
 ation,^ was or is in writing signed by the defendant, or 
 any person authorized by him, the plaintiff may reply, 
 that a memorandum of agreement in writing, stating 
 the consideration,^ was signed by the defendant, with- 
 out setting out such memorandum in the replication.* 
 
 The objection that there is no note in writing of a 
 promise to pay the debt of another, within sect. 4 of the 
 statute of frauds, need not be specially pleaded.^ 
 
 A guaranty need not be 'proved to be in writing 
 w.hen the defendant pleads a tender to the count on the 
 guaranty, and' pays money into court on such plea of 
 tender.* ^'' 
 
 ' Lilly V. Hewett, 11 Price, 494. ' See last note. 
 
 " Tlie consideration need of course * Wakeman v. Sutton, 2 A. <fe E. 78. 
 
 no longer stated in writing, see ante, p. 'Mines v. Sculthorpe, 2 Camp. 215. 
 
 178. * Middleton v. Brewer, Peake, 15. 
 
 * As to what is a sufficient memorandnni, under statute of frauds, gen- 
 erally, see Frank «. Miller, 38 Md. 450 ; Kistler's Appeal, 73 Penn. St. 
 398; Johnson v. Bowden, 37 Tex. 621; Trevitt v. Griffin, 61 111. 81; 
 Moore v. Pickett, 63 111. 158; Runde v. Runde, 59 111. 98; White v. 
 Wieland, 109 Mass. 391; Brennan ». Ford, 46 Cal, 7; Greeley v. 
 Stilson, 27 Mich. 153; Lenheim v. Fay, Id. 70; Scott ». Bush, 26 
 Mich. 418; Haddont). Haddon, 43 Ind. 378; Hayes ■«. Moyuihan, 60 111. 
 409; Steele ». First National Bank, &c., Id. 23; and, particularly as to 
 14
 
 210 THE LAW OF GUARANTIES. 
 
 fruaranties, Ilawlcy r. Keelcr, 53 N. Y. 114; Cliilcote v. Kile, 4? 111. 88; 
 Whito V. Solomonsky, 30 Md. 585; Goetz v. Foos, 14 Minn. 265; Godden 
 V. Pierson, 42 Ala. 376; Duffy «. Wunscli, 8 Abb. (N. Y.) Pr. N. S. 113; 
 Packer «). Benton, 35 Conn. 343; Stewarts. Campbell, 58 Me. 489 ; Thomas®. 
 Delphy, 33 Md. 373; Smith v. Bowler, 2 Disney (Ohio), 153; Buchanan v. 
 Paddleford, 43 Vt. 64 ; Hodgkins v. Jackson, 7 Bush (Ky.) 324 ; Luark v. 
 Malone, 34 Ind. 444 ; Ames v. Foster, 106 Mass. 400 ; Manley v. Geagan, 
 105 Mass. 445; Rabberman «. Wiskamp, 54 111. 179; Kaufman v. Har- 
 stock, 31 Iowa, 472 ; Crosby v. Jeroloman, 37 Ind. 264 ; Sinclair v. Brad- 
 ley, 52 Mo. 180; Alwin v. Garberick, 8 Phil. (Pa.) 037; Hearing v. Ditt- 
 man. Id. 307; Cross v. Ballard, 46 Vt. 415. 
 
 Under the Louisiana Act, 1858, No. 208, which declares " that here- 
 after parol evidence shall not be received to prove any promise to pay the 
 debt of a third person ; but, in all cases, the promise to pay shall be 
 proved by written evidence, signed by the party to be discharged, or by 
 his especially authorized agent or attorney in fact," — a promise to pay the 
 debt of another, cannot be proved by parol evidence, although such evi- 
 dence has been received without objection. Merg v. Labuzan, 23 La. An. 
 747.
 
 CHAPTER IV. 
 
 THE LIABILITY OF THE SURETY. 
 
 In" order to ascertain the extent and nature of a 
 s\irety's liability, the instrument under wliicli liis lia- 
 bility arises must be looked at. It is tlierefore proposed, 
 in the first place, briefly to call attention to the general 
 rules which exist as to the construction of guaranties. 
 
 In the construction of all contracts, it is a general 
 rule that all words are to be taken most strictly against 
 the grantor or contractor,* An idea seems formerly to 
 have prevailed, and, indeed, in some cases it was actually 
 laid down, that the contract of guaranty must, in this 
 respect, be construed differently from other contracts. 
 Thus, in Nicholson v. Paget,^ Bayley, B,, said : " Now 
 
 ' 1 C. & M. 68; s. c. 3 Tyr. 164. See also Evans v. Whyle, 6 Bing. 485. 
 
 * A contract of guaranty is to be construed liberally for the purpos3 of 
 ascertaining its latitude, or the intent of the parties thereto. 3 Kent Com. 
 124. But, for the purpose of ascertaining such intent, all doubtful lan- 
 guage is to be construed strongly against the guarantor. Falley v. Giles, 
 29 Ind. 114; Williams t. McHatton, 16 La. An. 196 ; Commercial Bank v. 
 New Orleans, 17 Id. 190; Douglas v. Reynolds, 7 Pet. 122; Lamb «. Baker, 
 3 Wheat. 148 ; Miller v. Stewart, 9 Wheat. 702. For it is the duty of the 
 individual who contracts with one man on the credit of another, not to 
 trust to ambiguous phrases and strained constructions. Russel v. Clarke, 
 2 U. S. Cond. R. 423. But the contract cannot be extended by such con- 
 struction to the prejudice of the surety ; his liability is strictissimi ji'ris. 
 McClusky V. Cromwell, 11 N. Y. 593; and see Gates v. McKee, 13 N. Y. 
 232; Drummond v. Prestman, 12 Wheat. 515; Noyes v. Nicholas, 23 Vt. 
 173; Rogers i\ Warner, 8 Johns. (N. Y.) 92; Lawrence ». McCalmont, 3 
 How. (U. S.) 426; Bell «. Bruen, 1 Id. 169; Dobbin v. Bradley, 17 
 Wend. 422 ; Cremer v. Higginson, 1 Mason, 336 ; Walrath «. Thompson, G 
 Hill (N. Y.) 540 ; Smith v. Dann, Id. 543. See note |, page 213.
 
 212 THE LAW OF GUARANTIES. 
 
 this is a contract of guaranty, wliicli is a contract of a 
 peculiar description ; for it is not a contract wliicli a 
 party is entering into for tlie payment of his own debt, 
 or on his own behalf, but it is a contract which he is 
 entering into for a third person, and we think that it is 
 the duty of the party who takes such a security to see 
 that it is couched in such words as tliat the party so 
 giving it may distinctly understand to what extent he 
 is binding himself."* Now, this opinion of Bayley, B., 
 is directly opposed to the ordinary rule of construction, 
 which is embodied in the maxim, Verha fortius accijpi- 
 untur contra i^roferentem. And it seems clear that the 
 rule of construction which the learned judge thus laid 
 down in Nicholson v. Pasret, can no loufjer be considered 
 as accurate. Thus, in Mayer v. Isaac,^ Alderson, B., 
 disapproved of the ruling of Bayley, B., and said he 
 preferred the rule laid down iii Mason v. Pritchard,^ 
 where it is said that the ordinary rule of construction is 
 applicable to the contract of guaranty, and that, like all 
 other contracts, it must be construed strongly against 
 the party executing it} So also in the modern case of 
 Wood V. Priestner,* the court declined to adopt the 
 opinion of Bayley, B., in Nicholson v. Paget ;^ and 
 Baron Martin said he thou2;ht that the contract of 
 guaranty should be read in the same way as any other 
 contract. The result of the authorities, therefore, seems 
 to be, that in the construction of guaranties it is a 
 general rule that a guaranty is like any contract, to be 
 construed most strongly against the person giving it. 
 
 ' 6 M. A W. 605, • " L. R. 2 Ex. 66. 
 
 M 2 East, 22*7. ''Supra. 
 
 ' See also Hargreave v. Smee, 6 
 Binff. 249. 
 
 =t Russel V. Clark, 2 U. S. Cond. R. 433.
 
 THE LIABILITY OF THE SURETY, 213 
 
 Tbongli, liowever (as just pointed out), a guaranty 
 is to be construed most strongly against the party giv- 
 ing it, yet there is a second general rule which must 
 never be lost sight of, and which may in some instances 
 restrain the operation of the first. This is the rule that 
 a surety is not to be charged beyond the precise terms 
 of his eu2:ao;emeut.^ '^' 
 
 A third general rule is, that in the construction of 
 guaranties,' as indeed in the construction of all contracts, 
 their natural or literal meaning must be given to the 
 words employed,® unless such natural or literal meaning 
 would lead to an absurdity.^ f 
 
 It is likewise a general rule that the whole instt'u- 
 ment must be considered in construing a guaranty. 
 Thus, when the guaranty is by bond, the extent of the 
 condition of such bond may be restrained by the recitals^ 
 as will be seen in a subsequent part of this chapter.* % 
 
 Whether the condition of the bond is actually re- 
 
 ' Wright V. Russell, 2 W. Bl. 934 ; ^ Chalmers v. Victors, 16 W. R. 
 
 Pearsall v. Summersett, 4 Taunt. 593; 1016. 
 Chalmers v. Victors, 16 W. R. 1046. * See post ; and see Glyn v. Hertel, 
 
 "" Allnutt V. Ashenden, 5 M. & G. 8 Taunt. 208 ; Pearsall v. Summersett, 
 
 397 ; Haigh t. Brooks, 10 A. & E. 309 ; 4 Taunt. 593. 
 s. c. in error, lb. p. 323. 
 
 * McClusliy «. Cromwell, 11 N. Y. 593. 
 
 t Lowby V. Leroy, 2 Sandf. 202; Denny v. Manhattan Co. 2 Hill, 220; 
 Metcalf e. Taylor, 36 Me. 28 ; Chapman v. Seacomb, Id. 102. 
 
 X Ex antecedentibus et consequentibus fit optima interpretatio. Washburn 
 V. Gould, 3 Story, 122; Chase v. Bradley, 26 Me. 531 ; Merrill v. Gore, 29 
 Id. 346 ; McNairy v. Thompson, 1 Sneed (Ten.) 141 ; 2 Parsons on Con- 
 tracts, 501. The intention is first to be sought by the court. Springsteen 
 V. Samson, 32 K Y. 703 ; Karmuller v. Krotz, 18 Iowa, 352. And too 
 much stress is not to be laid upon the precise meaning of words when the 
 intention is manifest. Salmon Falls Co, v. Portsmouth Co. 46 N. H. 249. 
 And where it is doubtful what the parties mean, the manner in which it 
 has been executed by both, or by one with the expressed or implied assent 
 of the other, furnishes a rule for its interpretation. Williams v. Mcllatton, 
 16 La. An. 196; Commercial Bank v. New Orleans, 17 Id. 190, and cases 
 cited in note *, page 211.
 
 21-i THE LAW OF GUAUAXriES. 
 
 strained by the recitals, is often a very difficult question 
 to determine.^ 
 
 It is a further general rule that the construction 
 shall be favorable, so as to support and give effect to 
 the instrument if possible.^ * 
 
 In constructing a guaranty, as in the construction of 
 every contract (whether under seal or not), the court 
 will, if possible, give effect to it, it being a. maxim of 
 our law that Benignm faciendm sunt inter ][)retationeSf 
 propter siin'plicitatein laicorum^ ut res magis valeat quam 
 pereat / et verha intentioni^ non e contra., dehent inservire? 
 In the recent case of Wood v. Priestnei',* which was an 
 action upon a guaranty, Baron Bramwell said, that there 
 was a presumption against the defendant giving an in- 
 valid document or the plaintiff receiving it. 
 
 In addition to these general rules of constructioc, it 
 will be well also to call attention in this place to a 
 principle of law, which, though not itself a rule of con- 
 struction, frequently has an important bearing when 
 questions arise as to the meaning of a written instru- 
 ment. This is the doctrine that parol evidence is not 
 admissible to contradict a written document, and conse- 
 quently, that where thei-e is no ambiguity in the words 
 used, parol evidence to fix a meaning upon them is not 
 admissible at all. Parol evidence is, howevei", admissi- 
 ' ble to explain a written instrument when ambiguities 
 
 ' See Parker u. Wise. 6 M. <fe S. 239; v. King, 2 H. tk N. 517; Heffield v. 
 
 Gordon v. Rac, 8 E. ct B. lUOo; Evans Meadows, L. R. 4 C. P. 595 ; Ford v. 
 
 V. Earle, 10 Exch. 1; and see note {d), Beech, 11 Q. B. 852; Pugh v. String- 
 
 3 Dougl. 326. field, 4 C. B. N. S. 364. 
 
 » Broom v. Batebelor, 1 11. <fe N. 255 ; ' Co. Litt. 36 a. 
 
 Steele v. Hoe, 14 Q. B. 431 ; Oldershaw * L. R. 2 Exch. 66. 
 
 * 3 Parsons on Contracts, 500.
 
 THE LIABILITY OF THE SURETY. 215 
 
 occur in it.^ * " The sniToiinding circumstances " are 
 frequently looked at where the contract requires explan- 
 ation : e. g.^ to ascertain the subject-matter of the con- 
 tract.- 
 
 Having thus briefly treated of the construction of 
 the contract of guaranty, let us now proceed to consider 
 — First. When does the liability of the surety arise ? 
 Secondly. How may such liability be enforced ? Thirdly- 
 What is the extent of such liability ? 
 
 First., then, When does the liability of the surety 
 arise ? 
 
 It is, in all cases, essential, before the surety can be 
 called upon to fulfil his engagements, that the principal 
 debtor shall have made default, f If, therefore, the 
 principal debtor has not made default at all, the surety 
 
 ' Edwards V. Jevons, 8. C. <fe P. 436 ; 595; Chalmers v. Victors, 16 W. R. 
 
 Hoad V. Grace, 7 H. & N. 494 ; 31 L. J. 1046; Coles *;. Pack, L. R. 5 C. P. 65, 
 
 Excli. 98 ; Goldshede v. Swan, 1 Exch. 70, 71 ; Leathley v. Spyer, L. R. 5 C. P. 
 
 154 ; Bainbrido-e v. Wade, 16 Q. B. 89 ; 595 ; Laurie v. Scholetield, L. R. 4 C. P. 
 
 Garrett v. Handley, 4 B. & C. 664. 622. 
 
 * Heffield v. Meadows, L. R. 4 C. P. 
 
 * 1 Greenleaf on Evidence, sees. 277, 383; Merrill «. Gore, 39 Me. 346. 
 The consideration of guaranties, as we have already seen, may in various 
 States be shown by parol. Gregory v. Gleed, 33 Vt. 405. See ante, page 179, 
 note t. Parol evidence has been held admissible to rebut frima facie evi- 
 dence of consideration in the following cases: — Page's Administrators «. 
 Bank of Alexandria, 7 Wheat. So ; Shepard v. Palmer, 1 Conn. R. 91 ; 
 Cummings v. Hackley, 8 Johns. (N. Y.) 203 ; Sraedes v. Union Bank, 30 Id. 
 373, 383 ; as to what may be evidence in an interpretation of guaranties. 
 In an action on a bond again?t the administrator of the surety, a judgment 
 on an award against the principal in a former action against the principal 
 was held not to be evidence. Beall «. Beck, 13 Har. & McH. (Md.) 343. 
 The relative position in which parties sign their names to an instrument is 
 not sufficient to create a presumption as to which is principal and which 
 is surety. Doughty v. Bacot, 3 Desauss. (S. C.) 546 ; and see also Rut- 
 ledge V. Greenwood, 3 Id. 389. The declarations of a principal are not 
 evidence against a surety. Tenth National Bank v. Daragh, N. Y. S. C. R. 
 (3 Tliompson & Cook) 138. 
 
 t Brambly v. Poultney, 11 Vt. 208; Jackson «. Fletcher, 23 Vt. 581.
 
 216 THE LAW OF GUARANTIES. 
 
 is not liable. This appears from the case of Walker v. 
 British Guaranty Association/ where the following were 
 the facts : — The treasurer of a benefit building society, 
 within statutes 6 <fe V Will. 4, c. 82, and 10 Geo. 4, c. 
 oG, covenanted with the society's trustees, that he would 
 faithfully discharge tlie duties of treasurer, duly obey 
 the directions of the trustees in relation to such duties, 
 and punctually account to the trustees for all and every 
 sum and sums of money, bills, notes, securities, goods 
 and chattels, which he, in his office of treasurer, should 
 receive on the society's account. The defendants, as his 
 sureties, guaranteed to the building society the due ob- 
 servance of this covenant. 
 
 It apj^eared that the treasurer was bound, by the 
 rules of the society, to pay over, in a given time, the 
 same moneys which he received. It was held, that such 
 an obligation was only that of a bailee, that he did not 
 violate such obligation, if, after receiving moneys, and 
 before he had an opportunity of paying them over, he 
 was robbed of them, by irresistible violence, and without 
 fault of his own, and that, to an action against the sureties 
 of the treasurer by the trustees of the society, complain- 
 ing that the treasurer had not paid the said moneys, a 
 plea by the sureties of robbery committed upon their 
 principal, in excuse of his non-payment, was an answer 
 to the action. But when once the principal has actually 
 committed a default, for which the surety is responsible, 
 as a general rule a cause of action immediately arises 
 against tlie surety. And, consequently, as a general rule, 
 and in the absence of any express or implied stipulation 
 to the contrary, the creditor need not, before suing the 
 surety, sue the principal debtor,^ even though such 
 
 ' 18 Q. B. 277. * See post, Chap. V, as to the right of the 
 
 ' Ranelagh v. Hayes, 1 Vern, 189. surety to compel the crediloi- to sue the
 
 THE LIABILITY OF THE SURETY. 217 
 
 principal debtor be quite solvent.^ If, indeed, tlie guar- 
 anty contain an express stipulation that the surety shall 
 not be liaV>le to the creditor, except on the failure of 
 the "utmost efforts and legal proceedings" of the cred- 
 itor to obtain payment or compensation from the princi- 
 pal debtor, the creditor, before he can recover, must 
 show that this stipulation has been complied with.^ 
 But Avliere the guaranty contained a proviso, that, before 
 the surety was to be called upon, the creditor must have 
 availed himself to the utmost of any bona fide securities 
 which he held of the principal debtor, and it was proved 
 that the plaintiff had neglected to adopt means to en- 
 force payment of a bill by a party who was slioiDii to he 
 totally insolvent^ it was held that the surety was not 
 discharged.^ '^ 
 
 It is quite clear, therefore, that, in the absence of ex- 
 press stipulation to that effect, a creditor who holds se- 
 curities from the principal debtor for -his debt need not 
 first resort to them before suing the surety.* 
 
 The doctrine of the Eno-lish law, that a rio;ht of ac- 
 tion accrues to the creditor, as against the surety, tin- 
 mediately upon any default of the principal debtor, is a 
 peculiar one, and does not, generally speaking, prevail 
 in other systems of jurisprudence. 
 
 The Koman law^ gave to sureties the j^ower to 
 compel the creditor to sue the principal debtor, before 
 having recourse to the sureties, unless, indeed, he could 
 
 principal debtor before having recourse ^ Holl v. Hadley, 2 A. <Jr E. 758. 
 
 to tlie suretjr. ' = ilusket i'. Rogers, 8 Scott, 51. 
 
 ' See Hardres's Beports in the Ex- * Ranelagh v. Hayes, 1 Vern. 189. 
 
 chequer, p. 377. ^ Nov. 4, c. 1. 
 
 * Post^ chapter VI, div. iv (1), note *; and see, as to the demand l)y the 
 surety that the creditor sue the debtor, Remseu «. Beekman, 25 N. Y. 552 ; 
 and Richards v. Commonwealth, 40 Penn. St, 146.
 
 218 THE LAW OF GUARANTIES, 
 
 show tliat sucli a proceeding would be useless, by 
 reason of the debtor's insolvency or absence, or unless 
 the surety expressly renounced this power of compelling 
 the creditor to sue.-^ 
 
 The provision of the Roman law seems to have been 
 adopted in most of those countries whose municipal 
 law is based upon the Roman civil law. Chancellor 
 Kpnt^ has well remarked, that "a rule of such general 
 adoption shows that there is nothing in it inconsistent 
 with the relative rights and duties of principal and 
 surety, and that it accords with a common sense of jus- 
 tice, and the natural equity of mankind." 
 
 Besides the rule that it is unnecessary for the cred- 
 itor, before having recourse to the surety, to sue the 
 debtor, there are also many other important rules which 
 follow as the consequences of the English law, that a 
 right of action accrues to the creditor immediately upon 
 a default by the principal debtor. Thus, except where 
 by the terms of the contract the debtor is not charge- 
 able without it, he need not even be requested to pay.^* 
 
 The recent Irish case of the Belfast Banking Com- 
 pany V. Stanley,^ is an important decision proceeding 
 upon this principle. There a promissory note was given 
 by A. and B. jointly. The note having become long 
 overdue, the payee sued upon it. One of the defend- 
 ants, B., upon this, j^leaded that he joined in the note 
 
 * Mackeldeii, Systema Juris Romani, Wilkins, 1 B. & C. 10; Warrinqjton v. 
 § 438. Furbor, 8 East, 242; Walton v. Mascall, 
 
 * In Hayes v. Ward, 4 Johns. Ch. 13 M. & VV. 452. 
 
 Gas. 123. * 15 W. R. 989; I. R. 1 Gom. Law, 
 
 ' Rede v. Farr, 6 M. <fe S. 121 ; Lilly Q. B. G93. 
 w. Hewett, 11 Price, 494; Holbrow v. 
 
 * Dickerson v. Derrickson, 39 111. 574; Voltz v. Harris, 40 Id. 155; 
 Bowman v. Card, 2 Bush (Ky.) 567 ; and see, on this point. Black River 
 Bank v. Page, 44 N. Y. 453 ; Hayes r. Ward, 4 Johns. Ch. (N. Y.) 123 ; 
 Herrick r. i3orst, 4 Hill (N. Y.) GoO.
 
 THE LIABILITY OF THE SURETY. * 219 
 
 as surety for A., of which the plaintiff was aware, and 
 that he was discharged from such suretyship by the 
 pLaintiff having dehayed, for an unreasonable time, to 
 demand payment from A. (the other maker), to wit, for 
 ten years. It was held that this plea did not disclose 
 any defense, and was consequently bad. So, again, in 
 the absence of express stipulation to that effect,^ the 
 creditor is entitled to sue the surety without previously 
 demanding payment of him;^ just as a debt due can, 
 in ordinary cases, be sued for without a previous de- 
 mand. However, it sometimes happens that, under the 
 circumstances of the case, a right of action against the 
 surety does not arise till some demand has been made 
 on him; and in such cases it is necessary for the cred- 
 itor to call upon the surety to fulfil his engagement, 
 though he be not expressly bound to do so. Thus, 
 where a person binds himself, by guaranty, to indorse 
 any bills which may be given in part payment of a 
 debt, to be contracted by a third person, the rule of 
 law is, that a demand upon the surety to fulfil his en- 
 ea^f^ment must be made, and within a reasonable and 
 convenient time.^ And as he can be sued without any 
 previous demand being made upon him, it is, as a rule, 
 not even necessary that the creditor should previously 
 inform the surety of the fault or neglect to pay of the 
 principal debtor,* unless the surety has expressly stip- 
 
 ' In Sicklemore v. Thistleton, 6 M "^ Hitchcock v. Ilumfrey, 5 M. & G. 
 
 <fe S. 9, there was snch an express stip- 559. 
 
 uhition as that alluded to in the text. ^ Payne v. Ives, 3 D. & Ry. 664. 
 
 See also Batson v. Spearman, 9 Ad. <fe 
 E. 298. 
 
 * As a general rule, a guarantor, except in tlie case of an absolute 
 guaranty, is entitled to notice of the principal's default; but a surety is not. 
 McMillan r. Bull's Head Bank, ^2 Ind. 11; Voltz v. Harris, 40 111. 155; 
 Dickerson v. Derrickson, 39 111. 574; Bowman i\ Card, 2 Bush (Ky.) 5Go; 
 Packard v. Richardson, IG Mass. 123.
 
 220 ' THE LAW OF GUARANTIES. 
 
 ulated for notice.^ Thus, it Las been held, that pre- 
 sentment or notice of dishonor is not necessary to keep 
 alive the liability of a person, not a party to the instru- 
 ment, who has guaranteed that a bill or note shall be 
 paid.^ It would seem, however, that if such want of 
 presentment or notice of dishonor, owing to the pecul- 
 iar circumstances of the case, were to amount to unrea- 
 sonable neglect on the part of the holder of the bill or note, 
 the guarantor would be discharged from all liability.^ 
 
 Cases of this kind would seem to depend upon the 
 circumstances peculiar to each.* * 
 
 Where the guaranty is only to operate on the occur- 
 rence of a certain event, it may become necessary for 
 the creditor to give notice to the surety of the occur- 
 rence of such event, before proceeding upon the guar- 
 anty.^ 
 
 But although, as a general rule, and in the absence 
 of stipulation to the contrary, the liability of the surety 
 arises, and a righi of action against him consequently 
 accrues to the creditor, immediately upon a default by 
 the principal debtor, this is not necessarily, nor al- 
 ways the case. For the liability of the surety — like 
 any other liability arising on a contract — may, by ex- 
 press stipulation, be made to depend on the perform- 
 ance of conditions precedent to its accrual. And when 
 
 ' Cutler V. Southern, 1 Wms. Saund. Van Wort v. Woolley, 3 B. <fe C. 439 ; 
 
 115; Ker v. Mitchell. 2 Chit. Rep. 487 ; AVarrinijton v. Furber, 8 East, 242. 
 Com. Dig. Condition (T); Ilurlstone on ' Pi/illips v. Astling-, 2 Taunt. 206; 
 
 Bonds, piige 83 el scq. ; Sicklemore v. and see Chitty on Bills, lOlh ed. note 3, 
 
 Thistleton, 6 M. k S. 9 ; Batson v. p. 308. 
 Spearman, 9 Ad. & E. 298. * I'er Abbott, C. J. in Van Wort v. 
 
 "" Hitchcock V. Humfrey, 5 M. <fe Gr. Woolley, 3 B. cfe C. 439, 448. 
 559; Walton v. Masctdl, 'l3 M. &. W. ' See Morten v. Marshall, 9 Jur. N, 
 
 72; Holbrow v. Willdns, 1 B. & C. 10; S. 651. 
 
 * If no fraud or deception be practiced upon a surety, the obligation is 
 valid as to him, if it be valid as against the principal. Moutou v. Beau- 
 champ, 10 La. An. 6G6.
 
 THE LIABILITY OF THE SURETY. 221 
 
 tills is the case, the liability of the surety is, of course, 
 not complete until all conditions precedent to his lia- 
 bility have been fulfilled.-^ Thus, where in considera- 
 tion of the plaintiff agreeing to supply A. w.itli goods, 
 to enable him to carry out his contract with the 
 government, the defendant guaranteed to the plaintiff 
 the payment of the goods when the government paid A. 
 the amount of the contract, it w\is held, that the govern- 
 ment having, before the performance of the contract, 
 dismissed A. and emi:)loyed some one else in his place, 
 and not having therefore paid to A. the whole amount 
 of the contract, the plaintiff was not entitled to recover.^ 
 So, also, in another case, H. &, Sons being engaged, un- 
 der a contract in writing, in the erection of certain 
 engineer's work for N., for which iron and brass castings 
 were required, and Hill, the founder from whom the 
 castings were j^rocured, having a claim against H. &, 
 Sons to the amount of 218^. for goods already supplied, 
 and refusing to continue the supply without obtaining 
 payment or security for that sum, N. consented to give 
 Hill a guaranty in the following terms : — 
 
 " May 22d,' 1861. Mr. J. N. agrees to pay to Mrs. 
 Hill, ironfounder, on H. &, Sons' account, the sum of 
 218/., being the amount owing to her by them, together 
 with interest, in six months from the above date,j9?'0- 
 viding he has work done as security for the same^ In 
 an action by the representatives of Hill against N. upon 
 this guaranty, it was held, that it was a condition of 
 N.'s liability thereon, that, at the end of the six months, 
 work should have been done by H. &, Sons for him in 
 respect of which a debt should be due from him to 
 
 ' Elworthy v. Maunder, 2 Moo. & P. R. 385. See also Moor v. Roberts, S C. 
 482 ; Pearse v. Morrice, 2 Ad. & E. 84. B. N. S. 830. 
 * Hemming v. Trenery^ 2 Or. M. &
 
 222 THE LAW OF GUARANTIES. 
 
 them ; and that tlie plaintiffs couhl not recover without 
 producing the contract between II. tfe Sons and N. 
 under which the work was done.^ But where, in con- 
 sideration of the plaintiff agreeing to stay proceedings 
 in an action against A. until a given day, and proceed- 
 ing to trial with an action against B., the defendan.t 
 promised to indemnify the plaintiff against all costs and 
 expenses connected with the action against B., ivhether 
 the same should he decided in favor of tlie plaintiff s or of 
 B. : it was held, that the final determination of the 
 action against B. was not a condition precedent to the 
 plaintiff's right to sue for costs, and that the considera- 
 tion was satisfied by the plaintiff staying p>roceedings 
 asfainst A. and o-oinir to trial a2:ainst B.^ 
 
 The most comuion examples, perhaps, of the exist- 
 ence of a condition precedent to the liability of the 
 surety, are cases in which a guaranty is given in con- 
 sideration of time being given to the principal debtor; 
 or, in which a guaranty is given in which it is intended 
 that others shall join. 
 
 Where a guaranty is given in consideration of the 
 plaintiff undertaking to forbear to sue a third person for 
 a certain period, or where the nature of the transaction 
 shows that this was the intention of the parties, for- 
 bearance to sue before the expiration of the period 
 agreed upon is a condition precedent to the plaintiff's 
 right of action on the guaranty.^ * 
 
 In a similar manner, where a person executes a 
 surety bond on the faith of its being at some subsequent 
 
 ' Hill V. Nuttall, 17 C. B. N. S. 262. 651, which are instances of conditions 
 
 ^ Wilson V. Bevan, 7 C. B. 673. See precedent, 
 also Christie v. Borelly, 7 C. B. N. S. = Kolt v. Cozens, 18 C. B. 673. 
 
 561 ; Morten v. Marshall, 9 Jur. X. S. 
 
 * Vide notes t, page 25 ; *, page 36 ; and =", page 37, as to foi^earance.
 
 THE LIABILITY OF THE SURETY. 223 
 
 time also executed by another person as cosurety, or by 
 the principal debtor himself, the execution by such co- 
 surety or principal debtor is a condition precedent to 
 the liability of the person who thus executes. Conse- 
 quently he is not bound by the bond unless this condi- 
 tion be fulfilled.^ * In addition to the cases cited in the 
 note below, a good example of this is afforded by the 
 analogous case of Emmet v. Dewhurst.^ There W. D., 
 by indenture, agreed to guarantee a certain composition 
 to all tlie creditors of J. D. w^ho should, before a fixed 
 day, execute a release of their debts. The plaintiff, who 
 was a creditor of J. D., did not execute by the time 
 named, but insisted that this delay had taken place in 
 consequence of an arrangement entered into between 
 him and the ao;ent of W. D., the effect of which was to 
 bind the plaintiff to accept the composition, but to 
 allow him to postpone his execution of the release. It 
 was held, dismissing a bill filed by the plaintiff against 
 
 ' Bonser v. Cox, 4 Beav. 379 ; Evans ' 3 Mac. & G. 587. 
 
 V. Bremrid!?e, 2 K. <$r J. 174 ; 8 De G. M. 
 «fe G. 101 ; "25 L, Jv N. S. part 1, 102, 334. 
 
 * Horner v. Lyman, 3 Abb. (N. Y.) App. Dec. 399 ; People v. 
 Bostwick,*43 Barb. (N. Y.) 9 ; Smith v. Board of Supervisors, 59 111. 
 413. See, hovpever, Dau- v. United States (16 Wallace, U. S. 1), where 
 it was held that a bond regular on its face cannot be avoided even 
 by sureties (the obligee not having had knowledge thereof), by the fact 
 that they signed it on a condition that other persons were to execute it 
 who did not execute it. But where one surety signed the bond with 
 others as surety for a government office, and one of the sureties subse- 
 quently erased his name from the bond, the surety is discharged and the 
 bond avoided by such erasure, ev.en though the erasure was made before 
 the bond was submitted to the judge for approval. Smith v. United States, 
 3 Wallace (U. S.) 319. And, in an action for contribution, a surety may 
 state conversations held with the principal, in order to show how he was 
 induced to sign. Hcndrick v. Whittemore, 105 Mass. 33. By signing an 
 appeal bond, cosureties become voluntary parties to the bond, and subject 
 themselves to the decree. Moore v. Huntington, 16 Wallace (U. S.) 417.
 
 224 THE LAW OF GUARANTIES. 
 
 W. D. for specific performance of agreement to pay the 
 composition, that there was no evidence that the agent 
 of W. D. had authority to enter into any new agree- 
 ment ; that if such authority had been proved, the 
 agreement being within the 4th section of the statute 
 of frauds, any alteration in its terms must have been 
 evidenced by writing; that the condition in the original 
 agreement not having been performed by the plaintiff, 
 the agreement never took effect so far as he w^as con- 
 cerned, and that in the absence of fraud no parol agree- 
 ment could be substituted. 
 
 It should, however, be here observed that it has 
 recently been decided that a surety, who has executed a 
 bond on the faith of its being executed by the princi- 
 pal debtor also, cannot be released from his obligation 
 on the ground that the principal has never executed it, 
 if the principal has executed an instrument on which 
 the surety may sue him, and become a specialty creditor 
 of his.^ * Moreover, where a defense of this kind, is 
 relied upon, there must be some evidence, either of an 
 agreement by the plaintiff with the defendant that such 
 cosurety should execute, or that the defendant executed 
 the instrument on the faith of the others doing so. 
 Thus, where in an action against a surety, the defendant 
 had pleaded an equitable plea, founded on the non-exe- 
 cution of the security by a cosurety, and it appeared 
 that the proposal of another surety came from the 
 plaintiff, and was not at the time made a coiidition by 
 the defendant, it was held that the defense failed.^ 
 
 In the case of Home v. Ramsdale,^ it was held, that 
 
 ' Cooper V. Evans, L. R. 4 Eq. 46. 28 ; Cumberlege v. Lawson, 1 C. B. N. 
 » Traill v. Gibbons, 2 F. <fe F. 358. S. 709. 
 See also Austin v. Howard, 7 Taunt. ' 9 M. tfe W. S29. 
 
 * Vide note *, page 223.
 
 THE LIABILITY OF THE SURETY. 225 
 
 the existence of the alleged condition precedent was 
 not made out. In that case the declaration stated that 
 one T. L. was the lessee of certain tolls, and that oije 
 S. and the defendants agreed to join witli T. in a bond 
 conditioned for payment of the rent under the lease, . 
 and it alle2:ed as a breach, tliat the defendant refused 
 to join T. in the bond. The defendant pleaded, first, 
 that at the time of tendering the bond to him, S. had 
 not executed the same, nor was lie present, ready to 
 execute it jointly with the defendant; secondly, that S. 
 died before the commencejiient of the suit, and that,before 
 his death, the bond was not tendered to the defendant 
 for execution, nor was he requested to execute it. It 
 was decided that the pleas were bad. Lord Abinger, 
 C. B., thus described the nature of the contract: "It is 
 a contract by each of the intended sureties to join in 
 the bond with T., the principal ; i. 6., to execute the 
 bond in the character of surety. It is not a contract 
 that they shall execute it in the presence of each other, 
 or that if one die the other shall be at liberty to re- 
 fuse to execute it." 
 
 Secondly. Having shown ivlien it is that the lia- 
 bility of the surety arises, let us now consider hotv 
 such liahiUty may he enforced against the surety.'^'' 
 
 * The liability of sureties for executors and administrators has not 
 been included in the author's treatment ; for generally, as to that liability, 
 see Murphy's Admr. v. Carter, 23 Grat. (Va.) 477 ; Strother v. Hull, Id. 
 652; Childress v. Morris,Id. 802; Vardeman v. Ross, 36 Tex. Ill ; Whit€r. 
 Henly, 54 Mo. 592 ; People v. Curry, 59 111. 35 ; Todd v. Sparks, 10 La. 
 An. 668. 
 
 As to sureties on replevin, attachment or sequestration bonds, see, gener- 
 ally, Miles V. Davis, 36 Tex. 690; Houghton v. Ledbetter 37 Id. 161 ; King 
 V. Blackmore, 72 Penn. St. 347 ; Doane v. New Orleans Telegraph Co. U 
 La. An. 504; Clapp v. Seibrecht, Id. 528; Norton v. Cammack, 10 La. Au. 
 10 ; Gordon v. Diggs, 9 Id. 422. 
 
 15
 
 226 THE LAW OF GUARANTIES. 
 
 In the majority of cases, of course, the creditor, as 
 plaintiff, seeks to enforce his lia])ility hy means of an 
 action against the surety as defendant. 
 
 In an action brouglit for this purpose, one of the 
 , first things to be considered is the form of action to 
 be adopted.^ With regard to this, it is to be observed, • 
 that the surety must be sued specially on the guaranty, 
 and not on the common counts.^ However, where, on 
 the trial of an action upon a guaranty for the payment 
 of work done for a third person, the plaintiff at first 
 sha])ed his case upon a guarauty, but afterwards re- 
 sorted to the common counts, and made out the defend- 
 ant's liability as a principal^ 'dnH recovered a verdict on 
 those counts, it was held that the verdict could not be 
 disturbed.^ So, also, in Wilson -v. Marshall,* wheie a 
 verbal guaranty was given for the su[)ply of goods to 
 a third person, and, subsequently to the supply of the 
 goods, the defendant admitted his liability under the 
 guaranty, it was held that the plaintiff was entitled to 
 recover on accounts stated. 
 
 As regards the question, who must be joined as 
 plaintiffs or defendants in an action upon a guaranty, the 
 following principles and decisions are of importance : — 
 
 First, as regards the persons who may enforce a 
 guaranty, that is to say, under ordinary circumstances, 
 the plaintiff s. It is decided that where the interest of 
 persons in a guaranty is actually joint^ l)ut, in fo'/ns, is 
 joint and severed., the action must be brought in the 
 names oiall the persons to whom the guaranty was given.' 
 In an action by persons jointly interested in a guaranty, 
 
 ' Probalily, under tin' new judic.i- Sop also Jones v. Fleming, V B. A C. 
 fure act, this point will cease to be of 217. 
 importance. • Edge v. Frost, 4 D. cfe R. 243. 
 
 ' Mines V. S'.ulthorpe, 2 Tamp. ^15 ; * 15 Ir. C. L. R. 4G7. 
 
 ' Pugh V. Stringfield, 3 C. B. N. S. 2.
 
 THE LIABILITY OF THE SURETY. 227 
 
 it is not necessary that, as l)et\veen themselves, their 
 interest in the sum sought to be recovered from" the 
 surety should l)e joint ; but, as between the plaintiffs 
 and defendants, the damages to be recovered under the 
 instrument must be joiat.^ And, on the one hand, it 
 seems that where a guaranty is addressed to, among 
 other persons, one who has no interest whatever in the 
 subject-matter guaranteed, such person need not be 
 joined as a plaintiff. Thus, in Place v. Delegal,^ E., as 
 attorney for the plaintiffs, who were executors of M., 
 sold an estate, to a share of the proceeds of which W. 
 was entitled as legatee of M. The defendant claimed 
 W.'s share of such proceeds under an agreement with 
 W. Thereupon the plaintiff paid the amount to the 
 defendant, on receiving from him a guaranty addressed 
 to E., and also to the plaintiffs as executors of M., and 
 undertaking to indemnify them, and each of them, 
 against any action by W. It was held, that the plaint- 
 iffs might sue on this guaranty without joining E. On 
 the other hand, persons who are actually interested in 
 the subject-matter of the guaranty, but to whom it is 
 not addressed, need not be joined as plaintiffs in an ac- 
 tion brought against it. Thus, in Agacio v. Forbes,^ the 
 plaintiff was a member of a partnership, and in con- 
 sideration of the plaintiff's undertaking not to sue B, 
 <fe Co., who Avere debtors to his firm, the defendant 
 gave a guaranty to the plaintiff. It was held, that the 
 contract being entered into with the plaintiff" ^)6;r56>7?rt//y 
 upon his undertaking not to sue B. & Co., it constituted 
 a personal agreement, and that the plaintiff' was entitled 
 to sue the defendants in his own name without joinings 
 his partners as plaintiffs in the action. 
 
 » Ibid. 4 C. B. N. S. 364. " 14 Jloore, P. C. C, 160. 
 
 » 4 Binfr. N. C. 426.
 
 228 THE LAW OF GUARANTIES. 
 
 i^ext, as regards the persons against whom a guar- 
 anty may l)e enforced, tliat is, under ordinary circum- 
 stances, th« defendants. It sometimes occurs that a 
 guaranty which, at first siglit, would appear joint, is 
 really joint and several. Thus, in Fell v. Goslin,^ the 
 plaintiftssued the defendants jointly upon the following 
 guaranty : " In consideration that you will sell to Mr. 
 F. the distillery situate at, tfec, and will take Mr. F.'s 
 acceptance, to be dated 29th September, 1849, for 400?. 
 (the amount of the purchase money), and interest i)aya- 
 ble at six months after the date, we undertake and 
 guarantee that the said sum of 400?. and interest shall 
 be duly paid to you when the said accei)tance arrives at 
 maturity, in the proportion of 200?. each." It was held, 
 that the defendants were severally liable to the plaint- 
 iff to the extent only of 200/. each. 
 
 It is also necessary to consider how far the liability 
 of a surety can be enforced against him by way of set- 
 off. For, although the persons entitled to the perform- 
 ance of a guaranty usually seek to enforce it as plaint- 
 iffs, it, in some cases, happens that they wisb to avail 
 themselves of their rights under the guaranty, by way 
 of defense to some action brought by the person liable 
 as surety. And it then becomes important to consider 
 whether rights existing under a guaranty can be enforced 
 against a surety by way of set-off. 
 
 Now, where a 7nere liahility under a guaranty exists 
 on the plaintiff's part, it is settled that such mere lia- 
 hility cannot form the subject of a set-oft'.^* In Morley 
 
 ' 7 Exch. 185. See also Collins v. Morley v. Inglis, 4 Bing. N. C. 58 ; 5 
 Prosser, 1 B. <fe C. 682. Scott, 314, 333. 
 
 ' Crawford v. Stirling, 4 Esp. 20*7 ; 
 
 * The surety, until he has paid the principars debt, has no demand against 
 him which amounts to a set-off. Walker v. McCay, 2 Met. (Ky.) 530; Ma-
 
 . THE LIABILITY OF THE SURETY. 229 
 
 V. Inglis/ Tindal, C. J., in deciding that the defendant 
 could not set off a sum due to him from the plaintiff 
 under a guaranty, said : " It is only by statute that the 
 defendant has the power of setting off one debt against 
 another, and the words of the statute are, that where 
 there are mutual debts between the plaintiff and de- 
 fendant, one debt may be set against the other, and 
 such matter may be given in evidence upon the general 
 issue, or pleaded in bai-, as the nature of the case shall 
 require. I shall not undertake to say that the word 
 debt is to be interpreted according to the strict sense 
 which is necessary to the maintainiug an action of debt, 
 nor shall I go through the bead-roll of authorities 
 which have been referred to on that point. It seems to 
 me that the rule by which we are to determine whether 
 or not a demand can become the subject of a set-off, is 
 by inquiring whether it sounds in damages, whether the 
 demand is capable of being liquidated, or ascertained 
 with precision at the time of pleading." 
 
 However, it has been decided in the case of Hutch- 
 inson V. Sydney,^ that though a mere liability under a 
 guaranty cannot be set off, yet money that has actually 
 been paid for another under an indemnity, may be set 
 off as money paid to the use of the plaintiff. 
 
 Thirdly. Having now shown when the liability of 
 the surety arises, and how it is enforced^ it remains to 
 
 ' Ubi svpra. » 10 Exch. 438. 
 
 guire T. Howard, 40 Penn. St. 391 ; Harrington v. Wallace, 8 Jones L. 43. 
 A surety cannot avail himself of an independent cause of action existing 
 in favor of his principal against the plaintiff as a defense or counter-claim. 
 It is for the principal to determine what use he will make of that; the 
 surety has no control over him in this respect. Lasher v. Williamson, 55 
 N. Y. 619.
 
 230 THE LAW OF GUARANTIES. 
 
 consider tlie cjuestiou, ivhat is the extent of the surety's 
 liability f 
 
 Upon this point it is to be observed, that the liabil- 
 ity of the surety appears to be \\\ki same both at law and 
 in equity.^ * 
 
 It is obvious that the extent of the surety's liability 
 must vary in each case. Sometimes it is coextensive 
 with that of the principal debtor. Sometimes it is not 
 coextensive. AVhere it is coextensive the question as to 
 the extent is a very simple one. For tlie measure of the 
 surety's liability, is, of course, the loss sustained by the 
 creditor through the default of the •principal deV)tor.f 
 An instance of a case of this kind is furnished by the 
 case of Oastley v. Kound.^ There the plaintiff entered 
 into a subcontract with one B., a government contractor, 
 to supply B. with certain articles within the period 
 stipulated in a certain government contract. In the 
 goverinnent contract there were penalties and deduc- 
 tions for delay in delivery, but these were not contained 
 in the subcontract. The defendants guaranteed the 
 plaintiffs *• the payment of the value" of the articles 
 thus to be supplied by the plaintiffs to the government 
 contractor " so soon as he should have received jDrayment 
 from the government." The plaintiffs supplied the 
 goods, but did not supply them within the time named 
 in the government contract held by B., and there was 
 
 ' Per Lord Elclon, in Samuel v. How- ^ 11 W. R. 518. 
 
 arth, .'J Meriv. 277, 278. 
 
 * Nor does a special remedy, conferred on a surety by statute, tkke 
 away his common-law rights. Harker ». Glidewell, 23 Ind 219. 
 
 t Where a principal debtor is insolvent, a creditor need not first pursue 
 him to judgment and execution, before suing the surety, even where that 
 he should do so was one of the conditions of the surety's bond. Heral- 
 son V. Mason, 33 Mo. 211 ; Bourgeat r. Adams, 11 La. An. 78 ; Mouton ». 
 Beauchamp, 10 La. An. 666.
 
 THE LIABILITY OF THE SURETY. 231 
 
 delay in delivery under both contracts. The govern- 
 rneut, however, did not exact any penalties, and paid 
 B. (their contractor) at the full contract price. Ob- 
 viously by accepting and keeping the goods supplied, 
 B. became liable to the plaintiffs to pay for them, sub- 
 ject, perhaps, to any question with the government. 
 Accordingly it was held that B. was liable to pay the 
 plaintiffs the full contract price under their contract 
 with him, and that, therefore, the defendant was liable 
 on his guaranty to the same amount. 
 
 In many cases, however, it is by no means obvious, 
 or agreed, that the liability of the surety and of the 
 principal debtor are coextensive.* And, in such cases, 
 it often becomes a matter of some difficulty to deter- 
 mine the exact extent of tlie surety's liability. The 
 most convenient mode of discussing the subject will 
 probably be to separately consider^ — (1) As from what 
 time a guaranty comes into operation, and the liability 
 of the surety commences; (2) To what things, and 
 how far, a guaranty extends ; (3) How long a guaranty 
 continues in operation ; (4) The liability of the surety 
 for fraud committed by himself; (H) The persons in 
 favor of whom, and on account of whom a guaranty 
 operates ; (6) The effect of bankruptcy of either of the 
 parties. 
 
 First, then, as to the time from which a guaranty 
 comes into operation, and the liability of the surety 
 commences. This depends upon the agreement made 
 by tlie parties themselves. A guaranty only operates 
 as from the time at which the parties intended that it 
 
 * But in another sense, not; for instance, the property of a surety can- 
 not be seized and sold under judgment against both principal and surety 
 until that of the principal has been discussed. Stinson v. Hill, 21 La. An. 
 5G0.
 
 232 THE LAW OF GUARANTIES. 
 
 should do so. Thus the liability of a surety for the 
 good behavior of a third person in an office, extends 
 only to defaults committed after such third person has 
 been legally appointed to the office.^ " And, even if 
 the condition of surety bonds recite the due appoint- 
 ment of such third persons to the offices contem[)lated, 
 the sureties are not estojoped ])y these recitals from 
 showing that there had been no complete appointment.^ 
 But, upon the other hand, a guaranty for the payment 
 of goods supplied to a third person, if given on the 7tli, 
 will cover goods contracted for on the 6th, but not de- 
 livered till the Ttfi, and then supplied on tbe credit of 
 the guaranty.^ 
 
 In the second place, let us, in order to further aid us 
 in the inquiry as to the extent of the liability of a surety, 
 consider to what things, and how far, a guaranty extends. 
 
 Now, in some cases, by the instrument of guaranty 
 itself, a limit is placed upon the extent of the liability 
 of the surety. Where this is done, the surety is liable 
 up to such amount, but of course not beyond it. The 
 rule, as laid dow^n by a modern text writer and ap- 
 proved by the courts, is this: "If a bond or guaranty 
 is given by a surety to secure the reiDayment of ad- 
 vances of money to the principal, provided such ad- 
 vances do not exceed in the whole, at any one time, a 
 certain limited amount, the proviso protects the surety 
 from being answerable beyond the amount named, but 
 it does not render the obligation void if the advances 
 go beyond it, unless that clearly appears to have been 
 the intention of the parties."* 
 
 ' Kepp V. Wig'gett, 10 C. B. 35 ; see " Kepp v. Wiggett, nbi nupra. 
 
 Also Nares v. Kowles, 14 East, 510; ' Simmons r. Keating, 2 Stark. 426. 
 
 Webb V. James, 7 M. & W. 279. * Addison on Coutracts, eth ed. p. 
 
 * Smith X. Board of Supervisors, 59 111. 412.
 
 THE LIABILITY OF THE 'SURETY. 233 
 
 As regards the liability of a surety for the payment 
 of calls which may be made on shares in a company, it 
 has recently been decided that he is not liable io be 
 placed on the list of contributories of the company.^ 
 
 In other cases, however, — indeed, probably in the 
 majority of cases, — either no limit to the surety's lia- 
 bility is laid down at all, or the limit mentioned is 
 only a pecuniary pne^ and is of no assistance in deter- 
 rainino; whether losses which have occurred are of a 
 class included within the guaranty or not. In such 
 cases, the question whether or not the surety is liable, 
 has to be determined by general principles. And the 
 great leading principle, which applies to such cases, is, 
 that a surety for the performance of a contract of a 
 third person, can only be made liable for what is strictly 
 loss sustained by breach of the contract,^ 
 
 Accordingly, this principle is applied in determin- 
 ing whether a given loss is covered or not, as answering 
 the description of being what we may venture to term 
 perhaps the princi])al thing guaranteed against, and the 
 very subject-matter of the contract. For instance, a 
 surety for the good behavior of another in an office or 
 employment, is only liable to answer for those defaults 
 -^-ov rather for breaches of those duties only — which 
 are strictly within the scope of such office or employ- 
 ment.* 
 
 Thus, in Leigh v." Taylor,^ it was held, that, as an 
 
 563. Approved of in Laurie v. Scheie- and Japan, Harrison's case, L. R. 6 Ch. 
 
 field. L. R. 4 C. P. 622 ; see also Seller Apjx 286. 
 
 V. Jones, 16 M. & W. 112; Gee v. Pack, '' Warro v. Calvert, T A. & E. 154. 
 
 33 L. J. Q. B. 49 ; Backho so ji. Hall, 6 ' 7 B. & C. 491. See also, Napier v. 
 
 B. & 8. 5u7; Parker v. Wise, 6 M."(fe S. Bruce, 8 C. <fe. F. 470; Pattison v. Guard- 
 
 240; (iordou v. Kae, 8 Ell. & Bl. 1087. iuns of Belford Union, 1 H. & N. 523. 
 ' In re Bank of Hindostan, China 
 
 * Union Bank v. Beatty, 10 La An. 381.
 
 23i Tin: LAW of guaranties. 
 
 overseer has not, by virtue of his office, any authority to 
 horroiv money, thei'efore, in an action against a surety 
 on a hond, conditioned for tlie overseer's faithfully ac- 
 C(mnting for all suras received by hini by virtue of his 
 office, the surety is not liable for a sum lent to the over- 
 seer, and applied by him to parochial purposes. Upon 
 the other hand, the liability of the surety extends to 
 transactions, which, in the natural and usual order of 
 things, take place on the faith of the guaranty. Thus, 
 in Ogden v. Aspinall,^ A. gave B. the following guar- 
 anty :- — 
 
 "I have given C. an order to purchase cotton, and, 
 as it may be to my advantage to have his bills on me 
 negotiated through your house, I have in such case to 
 request that you will honor his drafts to the amount of 
 those we may send to you for sale, on my account, and 
 I engage that his bills on me, so transmitted, shall be 
 regularly accepted and paid." It was held, that, under 
 this guaranty, B. was justified in honoring C.'s draft to 
 the amount of a bill drawn })y C. on A., and represented 
 by C. to B. as being drawn on account of A., though 
 such bill was in fact drawn by C. on his oivii account. 
 And, on the same principle, it is settled that the cred- 
 itor is entitled to recover loss actually sustained, al- 
 though he may have entered into a compromise of the 
 liability. This was settled by Smith v. Compton,^ where 
 it was held that, in an action on a general guaranty, the 
 only effect of a party receiving the guaranty compro- 
 mising a suit commenced against him without notice to 
 the surety, is to let in proof on his part, that the com- 
 promise was improvideutly made, and it lies on him to 
 establish that fact. 
 
 ' 7 D. <fe R. 637. ' 3 B. <fe Ad. 407. See, further, 
 
 Lewis V. Smith, 9 C. B. 610.
 
 THE LIABILITY OF THE SURETY. 235 
 
 The doctrine, that the principal is liable for what is 
 strictly loss caused by the default guaranteed against, 
 is also applied to what may perhaps be called matters in- 
 cidental to the principal subject-matter of the guaranty. 
 
 Thus, upon the one hand, whenever the principal 
 debtor was liable to pay interest on what he owed tlie 
 creditor, his surety is also liable, on his default, for in- 
 terest. Thus, a party who guarantees the due payment 
 of a bill of exchange (which is an instrument carrying 
 interest by law) by the acceptor, is liable for interest 
 upon it if it be not paid when due.' ^'' 
 
 Upon the other hand, it sometimes happens that a 
 person, to whom a guaranty has been given, incurs costs, 
 by reason of his having enforced or resisted legal pro- 
 ceedings, f The question then arises, is the surety lia- 
 ble for such costs ? Can their amount be recovered 
 from him-? Upon this point, in Gillett v. E,ippon,^ Lord 
 Tenterdeu, C. J., said : '' A man has no right, merely 
 because he has an indemnity, to defend an action and 
 to put the person guaranteeing to useless expense.'' 
 And this principle was applied and acted upon in the 
 case of Colvin v. Buckle.^ There, in consideration of a 
 further advance by the plaintiffs to Gr., on his consign- 
 ment, the defendants undertook to reimburse them the 
 amount on demand, with interest, in the event of the 
 plaintiffs finding it necessary to call u23on the defend- 
 
 ' Ackerman and others v. Ehrens- ^ 1 M. & M. 406. 
 
 perger, IG M. & W. 99. ' 8 M, & W. C80. 
 
 *HaiuiltoH V. Van Rensselaer, 43 K Y. 244; Melick v. Knox, 44 N. Y. 
 676. 
 
 . t Whitworth v. Tilman, 40 Miss. 76 ; Bennett v. Dowling, 22 Tex. 660 ; 
 Scully V. Hawkins, 14 La. An. 183; Bonney v. Lucey, 2 Wend, 481. 
 
 " Sureties may recover back costs paid by them in good faith." Laws 
 of K Y. 18o8. 506, ch. 314, sec. 3; Elwood v. Deifendorf, 5 Barb. 398; 
 Baker f. Martin, 3 Barb, 634; Hubbly ». Brown, 16 Johns. 70; Shilding 
 V. Warren, 15 Johns. 273; Ilohnes v. Weed, 24 Barb. 546.
 
 23G THE LAW OF GUARANTIES. 
 
 ants to do so, eltlier from the state of G.'s pcndinp^ 
 account with the plaintitl's, or from any other circum- 
 stances. On the arrival in England of the consignment 
 on which the advances had been made, the East India 
 Company sold the goods consigned, and out of it paid 
 the freight, and in consequence of conflicting claims 
 from the assignees, G. (for G. had become a bankrui)t) 
 filed an interpleader bill and paid the balance of the 
 proceeds into court. Proceedings at law and equity 
 were carried on between all the above parties for several 
 years, and ultimately the plaintiffs were obliged to pay 
 the costs of the owner of the vessel. It was held that 
 the defendants could not be made liable, under the 
 guaranty, for the expenses incurred by the plaintiffs in 
 the law proceedings. 
 
 * While the sui'ety is thus held liable for all losses, 
 v/hich are strictly losses arising from his principal's de- 
 fault, he, of course, cannot be held liable for anything 
 beyond the actual and real extent of such losses."^"" 
 Consequently, the creditor is bound, in estimating the 
 liability of the surety to him, to give the surety credit 
 for what the principal debtor may have paid, towards 
 the liquidation of the amount due to the creditor. 
 Thus, where the creditor, with the privity of the surety, 
 accepts from the principal debtor a composition on the 
 whole of the debt due, the surety is entitled to a pro- 
 portional reduction of his own liability.* 
 
 The third matter to be considered, in inquiring into 
 the extent of the surety's liability, is the question, how 
 
 ' Bardsvvell v. Lydall, 7 Bing. 489. See also Gee v. Pack, 33 L. J. Q. B. 49. 
 
 * Wh^re a surety buys up his principal's debt for less than its face, he 
 ■will be restricted, in recovering from his principal, to the sum actually 
 paid by him. Coggeshall v. Ruggles, 63 111. 401. In all other cases, the 
 measure of the surety's liability is the judgment against his debtor. 
 Keave v. Fisher, 10 La. An. 261 ; and see, also, Wogan v. Thompson, Id. 284.
 
 THE LIABILITY OF THE SURETY. 237 
 
 long a guaranty continues in operation. It is some- 
 times by no means easy to determine what is the extent, 
 in point of time^ ol the surety's liability. Thus, sup- 
 posing goods to be supplied, or advances made to a 
 third person, on the faith of a guaranty, the question 
 often arises, is the guaranty intended as a security for 
 more than the j^;'*'^ advance or supply ? Is it a contmiiing 
 guaranty or not ? 
 
 The cases in which this question, whether -a guaranty 
 is a continuing one or not most commonly arise, may be 
 considered as being of two classes. The first class of 
 cases consists of ordinary mercantile guaranties for a 
 current account, either for goods sold, or for money 
 advanced, or some consideration of the like nature. 
 The second class of cases arises where guaranties have 
 been given for the good behavior of a person in some 
 office or employment. 
 
 With regard to the first class of cases, no fixed rules 
 have been laid for determining whether a guaranty is 
 to be considered a continuing one or not. All, there- 
 fore, that can be done is to lay before the reader some 
 of the more important of the decided cases as they are 
 found in the reports. In such cases, the language of 
 one guaranty aftbrds little or no guide to the construc- 
 tion of another which is given under other and dif- 
 ferent circumstances.^ Probably this is the reason that 
 no fixed rules are to be found with regard to them.'"^ 
 
 ^ Per Bovill, C. J., in Coles v. Pack, L. R. 5 C. P. 65, '70. 
 
 * Where defendant introduced a messenger by letter as fellows : '' Any 
 favor you may shpw him by introducing him to the various houses, so 
 that he may be able to fill his orders, will be highly appreciated by him, 
 and will be indorsed by me to the amount of his purchases." Held that 
 defendant was liable as a guarantor, provided that he was duly informed 
 that hid offer was accepted, and of the amount advanced under the guar-
 
 238 THE LAW OF GUARANTIES. 
 
 In tlie followins: cases the instiumcnt was held to 
 be a continniug (jaarantu : 
 
 111 Laurie v. JSclioleiiekl/ K. tfe Co. being about to 
 
 ^ L. R. 4 C. P. 622. 
 
 anty. Wheeler v. Mayfield, 31 Tex. 392. As to wliat is known wit'i us as 
 a continuing or general running guaranty (Benedict v. Sheril], Supp. 
 Hill & D. 219), see Sickle v. Marsli (44 How. 91), where defendant wrote: 
 '•The bearer is going to start a peddling route to sell cigars and tobacco. 
 He wishes to buy goods of your firm. * * * We, the undersigned, 
 will be his security to the amount of $1,000.'' Held that the letter was a 
 continuing guaranty, and rendered the defendants liable until notice to 
 the contrary. 1872, Wood t\ Sherman, 71 Pa. St. 100; Reed i\ Fish, 50 
 Me. 338; Schlessinger ». Dickinson, 5 Allen, 47; Stockbridge r. Schroon- 
 maker, 45 Barb. 100; McKaughton r. Conkling, 9 Wis. 316. But, it seems, 
 a mere executor's contract for the sale of chattels to be delivered in the 
 future, without limitation as to time, may not be within the meaning of the 
 guaranty. In Hayden v. Crane, 1 Lans. (N. Y.) 181, the defendant 
 wrote: " There is a fair prospect thfit R. could sell a few chamber suits, if 
 he had tlieni. If you will let him have them, we will see that you receive 
 pay for them as sold, or soon thereafter." Held, the guaranty contem- 
 plated but a single sale, accompanied or speedily followed by delivery; 
 that it did not intend a continuing order for future delivery of goods 
 from time to time for an indefinite period. Where the letter of guaranty 
 is especially directed to a particular person, no other person can, by volun- 
 teering to act upon it, create any legal obligation against the writer. 
 Buckhead v. Brown, 5 Hill, 689 ; 2 Denio, 375. 
 
 In the case of a continuing guaranty, the acceptance, as we have seen, 
 must be distinctly proved, and also that credit was given on the faith of 
 it. McCollum V. Gushing, 22 Ark. 540; ride also Fellows r. Prentiss, 
 3 Den. 512; Mauran v. BuUus, 16 Pet. (U. S.) 528; Bent v. Hartshorn, 1 
 Mete. (Mass.) 24. See, generally, Griffin v. Rembert, 2 S. C. (N S.) 410. 
 
 A statement that " the money will be forthcoming," or that •' I will be 
 security for the amount he will owe you," is not a guaranty. Ca-e v. Luce, 
 28 Iowa, 527; Boehne c. Murphy, 46 Mo. 57; sec, generally. Garner i\ 
 Hudgins, 40 Mo. 399 ; Reed v. Fish, 59 Me. 358; Ash ton v. Bayard, 71 
 Pa. St. 130 ; Agawam Bank v. Strever, 18 N. Y. 502 ; Rindge v. Judson, 24 
 N. Y. 61; Hatch v. Ilobbs, 12 Gray (Mass.) 477; Hotchkiss ?j. Barnes, 34 
 Conn. 27 ; Congdon v. Read, 7 R. I. 576 ; Central Savings Bank v. Shine, 
 48 Mo. 45G; 8 Amer. 112; McNaughton v. Conkling, 9 Wis. 316; Gard v. 
 Stevens, 12 Mich. 292 ; Montgomery v. Kellogg, 43 Miss. 486 ; 5 Amer. 508 ; 
 2 American Leading Cases (Hare & Wallace), pp. 43. 46, 138, 141 ; Hay- 
 den r. Crane, uli suijra.
 
 THE LIABILITY OF THE SURETY. 239 
 
 open an account with the Union Bank, the defendant 
 and one Black signed the following guaranty : 
 
 •' In consideration of the Union Bank aij^reeing: to 
 advance, and advancing to R. & Co any sum or sums 
 of money they may require, during the next eighteen 
 months, not exceeding in the whole 1,000/., we hereby, 
 jointly and severally, guarantee the payment of any 
 such sum as may be owing to the bank at the expira- 
 tion of the said period of eighteen months." 1,000/. 
 was placed by the bank to the credit of R. &, Co.'s 
 drawino; account, and R. & Co. were debited with 1,000/. 
 in a ioan account. R. <fe Co. from time to time drew 
 checks against, and'paid money to the credit of their 
 drawing account. Over 1,000/. was thus paid in by K. 
 & Co., and they were not debtors on the drawing ac- 
 count when it was finally closed. The loan account re- 
 mained unaltered. The bank sued the defendant for 
 1,000/.' on the guaranty, and after the commencement of 
 the action, Black paid the bank 500/. in discharge of 
 his liability. The defendant did not plead this pay- 
 ment. It was held that the guaranty was a continuing 
 one, and that the defendant's liability was not dis- 
 charged by the payments made by R. <fe Co. It was 
 held, also, that (by rule 14 of Hilary Term, 1853) the 
 defendant could not, in the absence of a proper plea of 
 payment, give the jDayment by Black in evidence in 
 mitigation of damages ; and that the bank was there- 
 fore entitled to recover the full amount claimed; but 
 that the court, having power to amend the pleadings, 
 would reduce the verdict l)y 500/. on payment by the 
 defendant of the costs of the rule. 
 
 In the case of Ileffield v. Meadows,^ W. York's 
 
 ' L. R. 4 C. p. 595.
 
 240 THE LAW OF GUARANTIES. 
 
 fotlicr bad failed iii Lis business of a butcher, and was 
 succeeded by his sou, W. York, wlio had been supplied, 
 from time to time, as his father had been, •with stock, 
 by the plaintiff, who was a grazier. At the time the 
 guaranty was given, W. York owed the plaintiff 9/. 9s. 
 9^/., and wished to purchase from the ^:>/<:rm^i^' some 
 stock for 91/. The j^laintiff, not wishing to trust W. 
 York to such an extent, went to the defendant and 
 asked him to give him a guaranty, saying, that if he 
 would give one for 50/. he would still Jceep sviyplying 
 W. York, as he had supplied York's father. The de- 
 fendant consented, and signed the following guaranty : 
 — " £50. I, John Meadows (the defendant), of Barwick, 
 in the county of Northampton, will be answerable for 
 £50 sterling, that William York, of Stamford, butcher, 
 may buy of Mr. John Heffield (the plaintiff'), of Don- 
 nington." The defendant desired the plaintiff not to 
 let W. York know that he had given this guaranty. 
 The plaintiff delivered the stock to W .York accordingly. 
 Payments were subsequently made by W. York to the 
 plaintiff, to an amount exceeding 91/. It was held, that 
 the surrounding circumstances showed that the object 
 the parties had in view was to keep up W. York in his 
 business of a butcher, and that, as the language of the 
 guaranty was general, and capable of meaning that the 
 defendant intended to be answerable for goods, at any 
 time supplied, to the extent of 50/., it was a continuing 
 guaranty. Willes, J., in his judgment, says: "The 
 question in this case is, whether the guai'anty declared 
 on was a continuing guaranty for 50/., so as to be a se- 
 curity to the plaintiff to that extent for any balance 
 which might become due to him in the course of his 
 dealings with York,^ or whether the security was lim- 
 
 ' The principal debtor.
 
 THE LIABILITY OF THE SURETY. 241 
 
 ited to a single transaction between the plaintiff and 
 York. It is obvious tliat we cannot decide that ques- 
 tion upon the mere construction of the document itself, 
 without looking at the surrounding circumstances to see 
 what was the subject-matter, which the parties had in 
 their contemplation when the guaranty was given. It 
 is proper to ascertain that, for the purpose of seeing 
 what the parties were dealing about, not for the pur- 
 pose of altering the terms of the guaranty by words of 
 mouth passing at the time, but as part of the conduct 
 of the parties, in order to determine what was the scope 
 and object of the intended guaranty. Having done 
 that, it will be proper to turn to the language of the 
 guaranty, to see if that language is capable of beino- 
 construed so as to carry into effect that which appears 
 to have been really the intention of both parties." And 
 Montague Smith, J., in the same case, said : " The con- 
 sideration is defectively stated. It does not show in 
 what the supply is to consist. We may, therefore look 
 at the surrounding circumstances, in order to see for 
 what it was given, and to what transactions or dealings 
 it was intended to apply, not to alter the language^ but 
 to fill up the instrument where it is silent, and to apply 
 it to the subject-matter to which the parties intended it 
 to be applied." 
 
 In Coles V. Pack,* in April, 1867, in order to induce 
 the plaintiff to continue his dealings with one F., who 
 was then largely indebted to him, the defendant gave 
 the plaintiff a guaranty as follows : — 
 
 " Holborn Wharf, Chatham, April 3, 1867. ► - 
 " Memorandum. In the event of your supplying 
 Mr. D. French, of Chatham, any coals, during the next 
 
 * ' L. R. 5 C. p. 65. 
 
 16
 
 242 THE LAW OF GUARANTIES. 
 
 twelve months, from the 1st April last past, I do hereby 
 guarantee the payment to you of the amount, for the 
 time being, due from Mr. D. Frencli to you, for coals 
 sold by you to him. Tliis guaranty to expire at the 
 end of twelve months, viz., 1st April, 18G8. 
 
 (Signed) "T. II. Pack." 
 
 Before the expiration of the twelve months men- 
 tioned in the above guaranty, viz., on the 23d of July, 
 1867, the debt due from F. to the plaintiff having gieatly 
 increased, and the plaintiff pressing for a settlement, 
 tlie defendant gave him a further guaranty, as follows : — 
 
 "Ditton, July 23d, 1867. 
 '' To E.R.Coles, Esq: 
 
 " Whereas, Mr. D. Fi'ench, of Chatham, Kent, coal 
 merchant, is and stands indebted to you, the said E. E. 
 Coles, in the sum of 2,205^. 3-s. 9c/., upon an account this 
 day stated and settled between you and the said D. 
 French, in addition to his liability upon two certain 
 acceptances of mine to his drafts, each for ToO/., dated 
 3d July, 1867, and payable three and four months after 
 date, and respectively indorsed to you by the said D. 
 French. And whereas, you are piessing for the im- 
 mediate payment of the said sum of 2,205/. !5a S)d. : 
 Now, I do hereby, in consideration of your forbearing 
 to take immediate steps for the recovery of the said 
 sum, guaiantee the payment of, and agree to become 
 responsible for, any sum of money for the time being, 
 due from the said D. French to you, wdiether in addi- 
 tion to the said sum of 2,205/. 35. Sid. or no, 
 
 (Signed) "T. II. Pack." 
 
 It was held that this was a continuing guaranty, 
 unlimited both as to time and amount,^ 
 
 ' The able judj^nient cf BoviU, C. J., in this case is well worth perusing.*
 
 THE LIABILITY OF THE SURETY. 243 
 
 In Burgess v. Eve/ a father, being desirous of ob- 
 taining advances for bis son from a bank, gave the son 
 a promissory note for 2,000/., and gave the bank the 
 following; ao-reement under seal : — 
 
 " To W. McKewan and W. J. Norfolk, Esqrs., puUic 
 officers of the London and County Banhing Com- 
 pany : 
 
 " Gentlemen, — In consideration of your discounting 
 for Mr. William Henry Maeers my promissory note to 
 him for 2,000/,, dated this day, and payable four months 
 after date, and of the sum of 5.S., the receipt of which I 
 hereby acknowledge, I deposit with you the several 
 documents mentioned in the schedule hereunder written, 
 which I agree shall remain with yon, or other the pub- 
 lic officers, for the time being, of the said company, as a 
 security for the payment to you, or other such public 
 officers as afoi'esaid, of all moneys due, or to become 
 due, from him to the said company, of whatsoever mem- 
 bers or proprietors it shall from time to time consist, on 
 any account whatsoever, including charges for interest, 
 commission, and all costs, charges and expenses which 
 you may incur in enforcing or obtaining payment of 
 such money, or in i-ealizing this or an 3^ further security. 
 And I agree to pay you, or such public officers afore- 
 said, upon demand, all such money. And I hereby 
 charge the hereditaments and premises comprised in 
 such documents respectively, and all fixtures now or 
 hereafter therein, with the payment thereof" It was 
 held that this agreement was not limited to the 2,000/., 
 but was a continuing guaranty for all money already 
 due, or which should become due from the son to the 
 bank. 
 
 ' L. R. 13 Fq. 450.
 
 24-i THE LAW OF GUARANTIES. 
 
 In the case of Wood -?;. Priestiier/ tlie guaranty was 
 as follows: "In consideration of the credit given by II. 
 G. C. <fc Co. to my son, for coal supplied by them to 
 hill), I hereby hold myself responsible as a guaranty to 
 them for the sum of 100/., and in default of his pay- 
 ment of any accounts due, I bind myself by this note to 
 pay to the H. G. C. & Co. whatever may be owing, to 
 an amount not exceeding the sum of 100/." When the 
 ■guaranty was given, the defendant's son owed the 
 plaintiff a debt of more than 100/. for goods supplied. 
 It was held to be a continuing guaranty. Kelly, C. B., 
 in delivering judgment, said : " I think this is clearly a 
 continuing guarant}^ The question in» these cases de- 
 'pends not merely on the words, but, when the words 
 are at all ambiguous, requires a consideration of the 
 circumstances to aid the construction." 
 
 In Simpson v. Manley,^ the guaranty was as follows: 
 
 " May 26, 1830. 
 " Our relation, Mr. Thomas Manley, having intimated 
 to us that he is about to make some purchases of goods 
 from you, we beg to say, that if you give him credit, we 
 will be resj^onsible that his payments shall be regularly 
 made to the extent of 1,000/., from this period to the 
 1st of June, 1831." 
 
 It was admitted by counsel, and stated by the court, 
 to be clear, that this was a continuing guaranty. 
 
 In Mason v. Pritchard,^ it was held, that a guaranty 
 
 • by the defendant to the plaintiff "for any goods he hath 
 
 .or may supply W. P. with, to the amount of 100/.," is 
 
 a continuing or standing guaranty* to that extent for 
 
 goods which may at any time have been supplied to W. 
 
 P., until the credit was recalled, although goods to more 
 
 * L. R. 2 Exch. 66. * 2 C. & J. 12. » 12 East, 227.
 
 THE LIABILITY OF THE SURETY, 245* 
 
 than 100^. Lad been before supplied and paid for. In 
 Allen V. Kenning/ tbe following guaranty was given : 
 " Whereas W. C. is indebted to you in a sum of money, 
 and may have occasion to make further purchases from 
 you, as an inducement to you to continue your dealings 
 with him, I undertake to guarantee you in the sum of 
 100/., payable to you in default on the part of the said 
 W. C. for two months." It was held to be a continuing 
 guaranty, and that it was binding on the defendant till 
 the parties came to an understanding that they would 
 be off, and that, on default of W. C. for two months 
 the defendant w^ould immediately be liable. 
 
 In Bastow v. Bennett,^ the guaranty was as follows: 
 
 " London, 7th March, 1810. • 
 
 " I hereby undertake and engage to be answerable 
 to the extent of 300/., for any tallow or soap supplied 
 by Mr. Bastdw to France & Bennett, provided they, 
 shall neglect to pay in due time." It was held to be a 
 continuing guaranty.. Lord Ellenborough, in his judg- 
 ment, says : " The defendant here became answerable 
 for any soap or tallow supj)lied by the plaintiff to 
 France <fc Bennett. Without the word any^ it might 
 perhaps have been confined to one dealing to the 
 amount of 300/.; but, as it is actually worded, I am of 
 opinion it remained in force while the parties continued 
 to deal on the footing established when it was given. 
 But I think the goods supplied after the new arrange- 
 ment^ were not within the scope of the guaranty, and 
 that the defendant is only answerable for the unsatisfied 
 balance of the old account." 
 
 In Merle v. Wells,^ the guaranty was as follows : 
 
 ' 9 Bing. 618 ; 2 M. <t Scott, 762. wliich the plaintiff supplied the goods to 
 
 * 3 Camp. 220. France & Bennett, substituting- tor a two 
 
 ' Tiie new arrangement alluded to months' credit, payment in ready uioney. 
 was one which altered the credit on * 2 Camp. 413.
 
 246 THE LAW OK GUARANTIES. 
 
 "Gentlemen, — I have been applied to by my brother, 
 William Wells, jeweler, to be bound to you for any 
 debts he may contract, not to exceed TOO/, (with you), 
 for goods necessary in his business as a jeweler. I have 
 wrote to say by this declaration I consider myself bound 
 to you for any debt he may contract for his business as 
 a jeweler, not exceeding 100/., after this date. 
 
 " (Signed) John Wells." 
 
 ' It was held to be a continuin^c onaranty. Lord 
 Ellenborough, in his judgment, said : " I think 'the de- 
 fendant was answerable for. any debt, not exceeding 
 100/., which William Wells might from time to time 
 contract with the plaintiff's in the way of his business. 
 The guaranty is not confined to one instance, but applies 
 to debts successively renewed. If a party means to be 
 surety only for a single dealing, he should take care to 
 say so." 
 
 In Martin v. Wright,^ the guaranty was as follows : 
 *' In consideration of your agreeing to supply goods to 
 K., at two months' credit, I agree to guarantee his pres- 
 ent or any future debt with you to the amount of 60/. 
 Should he fail to pay at the expiration of the above 
 credit, I bind myself to pay you within seven days of 
 receiving notice from you." It was held that this was 
 a continuing guaranty. 
 
 In The^Nottincrham Hide, Skin cfe Fat Maiket Co. 
 (Limited) v. John Bottrill and anothei,^ the facts were 
 as follows : The plaintiffs weie in the habit of holding 
 weekly sales of hides, skins, <fec., the course of business 
 being that the goods bought at each sale were paid for 
 in the following week. One Dyson, who had for some 
 time bought skins at these sales, on the 29th of Decern- 
 
 '6Q. B. 917. « L. R, 8 C. p. 694.
 
 THE LIABILITY OF THE SURETY. 247 
 
 ber, 1871, bought to the extent of 34^. 7s. ^d. Having 
 heard that Dyson had executed a bill of sale, the plaint- 
 iffs declined to deliver the skins unless the defendants 
 would engage to be responsible for the price. This 
 being communicated by Dyson to the defendants, the 
 latter on the 1st of January, 1872, telegraphed to the 
 plaintiffs, "We agree to be answerable for the skins," 
 and on the same day sert them a covering letter, in 
 which, after stating that they had had dealings with 
 Dyson for five years, and had never known anything 
 dishonorable or dishonest in any of his transactions, 
 they wrote, " What you have heard was done to proteqt 
 him from a dishonest tradesman, and will in no way, w6 
 hope, be to the injury of his creditors. Having eveiy 
 confidence in him, he has but to call upon us for a check 
 and have it with pleasure for any account he may have 
 with you." The plaintiffs accordingly sent Dyson the 
 goods, and continued to deal with him down to the 3d 
 of May, 1872, at which time he was indebted to thein 
 in 92/. Is. 10<^., which he was unable to pay, the de- 
 fendants, who were the holders of the bill of sale, hav- 
 ing seized and sold all his effects under it. It was held 
 that the defendants' letter of the 1st of January was 
 a continuing guaranty. In his judgment in this case, 
 Keating, J., said : " Each case must, no doubt, depend 
 entirely upon the language used, and the document 
 must be looked at with reference to the special circum- 
 stances under which it is given. Now, what did the 
 writers of that letter of the 1st of January mean, and 
 what would the plaintiffs naturally understand from it ? 
 The defendants were aware of the state of things be- 
 tween the plaintiffs and Dyson, and sent that letter in 
 order to remove the unfavorable impression the plaint- 
 ifts had of Dyson's credit and ability. The letter does
 
 248 THE LAW OF GUARANTIES. 
 
 not confine itself to the transaction alluded to in the 
 telegram ; but it goes on — ' Having every confidence in 
 him, he has but to call upon us for a check, and have it 
 with pleasure, for any account he may have with you ; 
 and when to the contrary we will write you.' What 
 •would any man of business understand by that ? The 
 only reasonable construction of the letter, as it strikes 
 nie, is this : Our opinion of Dyson is so high, that we 
 are ready to become sureties for any account for which 
 he may become indebted to you ; and, if we see reason 
 to change our mind, we will let you know. That 
 amounts to a guaranty, and a continuing guaranty. It 
 ■was calculated to induce the plaintiffs to give credit to 
 a man to whom they would not otherwise have given 
 it." ' 
 
 In Mayer v. Isaac,'^ the guaranty was as follows : 
 "In consideration of your supplying my nephew, V., 
 with china and earthenware, I guarantee the payment 
 of any bills you may draw on him on account thereof, 
 to the amount of 200/." It was held that the guaranty 
 was a continuing one, and that the defendant was liable 
 upon it, although, after the guaranty, goods to a greater 
 •amount than 200/. had been suppled to and paid for by 
 V. "It contemplates" (says Baron Alderson, in his 
 judgment in the case) " the continuance of a supply on 
 the one side, and, on the other, a liability for any .de- 
 fault during that supply, and then it defines the extent 
 'to which the defendant will be bound upon this con- 
 tinuing or running guaranty.^ 
 
 The following cases have been selected as instances 
 
 * The judgment of Brett, J., ia this P>. 1 ; Ilargreave v. Smee, 6 Bing-. 244 ; 
 case will also well repay perusal Williams v. IJawlinson, 3 Bin<r. 74; 
 
 » 6 M. ik W. (505. ■ Hitchcock v. Ilumfrey, 5 M. & G. 559 ; 
 
 * For other iiistanci'S of continuing see also Wonlley v. Jennings, 5 B. & C. 
 guaranties, see Tanner v. Moore, 9 Q. 165; Hoad v. Grace, 7 H. <fe N. 494.
 
 THE LIABILITY OF THE SURETY. 249 
 
 of iustrumeiits wliich have been held not to be continu- 
 ing guaranties. 
 
 In Nicholson v. Paget/ the guaranty was in the fol- 
 lowing words: 
 
 " Sir, — 1 hereby agree to be answerable for the pay- 
 ment of 50^. for T. Lerigo, in case T. Lerigo does not 
 pay for the gin, <fec., which he receives from you, and I 
 will pay the amount." It was held that this was not a 
 continuing guaranty, for that it referred to a particular 
 quantity of gin which the party was to receive from the 
 plaintiff. 
 
 In Tayleur v. Wildin,^ one M., being yearly tenant 
 to the plaintiff on the tej'ms of a written agreement, the 
 defendant, in consideration of the plaintiff's continuing 
 M. as such tenant, gave the plaintiff a guaranty for "the 
 rent of the Leese Farm, in the occupation of M." The 
 plaintiff' afterwards gave M. notice to quit, but, on the 
 payment of arrears of rent, withdrew it before the ex- 
 piration of the current year. The next year the rent 
 became in arrear, and the plaintiff sued the defendant 
 on his guaranty. It was held that the old tenancy was 
 determined by the notice to quit; that the guaranty 
 applied only to the tenancy which existed at the time 
 when it was given ; and that the defendant was, there- 
 fore, not liable. 
 
 In Chalmers v. Victors,^ the defendant gave the fol- 
 lowing guarantor "J. V. hereby engages to be respon- 
 sible for liabilities incurred Ijy M. and V. to the extent 
 of 50/." At the time the guaranty was giv^en, 41/. was 
 due from M. and V. to the plaintiffs. It was held that 
 the guaranty contemplated future credit, but only to 
 such an amount as, with the existing liability, made up 
 
 M C. & M. 48. ' 16 W. R. 1046. 
 
 * L. R, 3 Ex. 303.
 
 250 Till-: LAW OF GUARANTIES. 
 
 50/., and tliat amount having been paid off by M. and 
 v., it was lu'ld that the guai-anty did not cover goods 
 subsequently sup|)]ied. Bovill, C. J., in his judgment 
 in this case, says: "It is difficult, if not impossible, to 
 reconcile all the cases cited. The documents in tliem 
 vary from each otlier, and the document in the present 
 case vaiies from all those that have been cited. Taking 
 the document simply without i-efei'ence to the surround- 
 ing cii'cumstances, and reading it in the ordinary sense, 
 it wcmld apply only to past liabilities, and if there were 
 nothing furthei', the guaranty would be altogether bad, 
 but we are at liberty to look at the facts as they were 
 on the day when the guai-anty. was given.'' Byles, J., 
 in the same case, said: "The words of this guaranty 
 are 'for liabilities incuri'ed,' and we are to give it a lit- 
 eral construction, unless that would lead to an absurdity, 
 or something plainly alien to the intention of the par- 
 ties. * * * * We are asked to extend the 
 w^ords as if they were * incurred or to be incurred ; ' but 
 we cannot do so without manifest reason, especiaUy in 
 the case of a surety y 
 
 In Allnutt V. Ashenden,^ the guaranty given to the 
 plaintiff was as follows : 
 
 " Messrs. Allnutt <fe Arbouin, 50 Mark Lane : 
 
 "Sirs, — I hereby guarantee Mr. John Jennings's 
 account with you for wines and sj^irits to the amount 
 of 100/. " (Signed) £l. Ashenden. 
 
 " Sittingbourne, April 14, 1838." 
 
 At the time of the giving of such guaranty there 
 was an existin2: accou?it between Jennino^s and the 
 plaintiff, upon which the former was indebted to the 
 latter (though in a less sum than 100/.). It Avas held, 
 
 ' 5 M. ifc G. 392.
 
 THE LIABILITY OF THE SURETY. 251 
 
 that the guaranty was for the payment of such existing 
 account, and that it did not extend to fiitui'e supplies of 
 goods. "The document," said Erskine, J., in his judg- 
 ment in this case, "contains no express words which 
 point to any prospective supply of goods, neither does 
 anything appear from which it can be inferred that the 
 parties contemplated any such supply. The primary 
 meaning of the language used can only have reference 
 to an existing account." ^ 
 
 In Bovill V. Turner,^ the guaranty was as follows : 
 " You may let L. have coals to 50/., for which I will be 
 answerable at any time." Coals were supplied for 
 many years, and many were from time to time delivered 
 and paid for, but ultimately more than the sum of 50/. 
 was in arrear. It was held not to be a contiuuino;; 
 guaranty. 
 
 In Melville v. Hayden,^ the guaranty was as follows : 
 "Memorandum, 23d September, 1818. I engage to 
 guarantee the payment of Mr. Amos Moulden to the 
 extent of 60/., at quarterly account, bill two months, for 
 goods to be purchased by him of William and David 
 Melville." It was held that this was not a continuing 
 guaranty for goods to be at any time supplied. Bay- 
 ley, J., in his judgment in this case, said : " The words 
 * quarterly account ' do not seem to me to vary the case ; 
 they only mean that, at whatever time the goods might 
 have been delivered, the account for them should' be 
 rendered quarterly. A party who takes a guaranty of 
 this sort should carefully provide that there are words 
 in it expressive of its being a guaranty of goods to be 
 
 ' 2 Chit. 205. » B. & Aid. 593. 
 
 * And see also Tucker v. Betting (32 Penu. St. 428), where the words, 
 " If be is not good, I am," were held to be no guaranty.
 
 252 THE LAW OF GUARANTIES, 
 
 furnished by liiin from time to time. In the case of 
 IMason v. Pritcbard/ that was tlie case. The words 
 there were ' for any goods he hath or may suj^)ply,' so 
 that there the guaranty was applicable to any goods 
 furnished at any time to the amount of 100/,, whatever 
 intervening payments might have taken place. They 
 were, therefore, equivalent to the words 'any goods 
 furnished from time to time.' In this case, however, I 
 think there was no continuing guarantee." * * * In 
 the same case. Best, J., said : " I think the case of 
 Mason v. Pritchard went as far as possible, but that 
 case is distinguishal^le from the present." 
 
 In Kirby V. The Duke of Marlborough,^ it was held, 
 that a bond entered into by A. and B. to the plaintiflPs, 
 to enable A. to carry on his trade, conditioned for the 
 payment of all such sums not exceeding 3,000/., which 
 should at any time thereafter be advanced by plaintiffs 
 to A., is not a continuing guaranty to the extent of 
 3,000/. for advances made at any time, but only a 
 guaranty for advances once made to the extent of 3,000/. 
 
 In Kay v. Groves,^ the guaranty was as follows: 
 
 " I hereby agree to be answerable to Mr. Kay for 
 the amount of five sacks of flour, to be delivered to Mr. 
 W. Taylor, Gra^^'s Inn Lane road, payable in one month. 
 
 " November 18th, 1828. Thomas Groves." 
 
 Tliis was held to be a guaranty for flour not exceed- 
 ing five sacks, delivered at one time, within a month 
 from 19th November, and not a continuing guaranty 
 for parcels delivered at various subsequent periods, 
 
 ' 12 East, 227. This case decides may at any time have been supplied to 
 
 tliat a fjuaranty bj' the defendant to the W. P. until the credit was reralled, 
 
 plaintiff '■ for any yoodd he /(«</*, or iway altliougli goods to more than lOo/. had 
 
 supply W. P. with, to the amount of t»een befuru Guuplicd and paid tor. 
 100^.," is a continuing or standing guar- '■* 2 M. & S. 18. 
 
 anty to that extent for goods which ' 6 Biug. 276.
 
 THE LIABILITY OF THE SURETY. 253 
 
 thougli not exceeding in the wliole five sacks. It ap- 
 peared at the trial before Tiudal, C. J., that on the 19th 
 November, plaintiff delivered to Ta}dor five sacks of 
 flour, and on the 21st November five more. On the 
 24th, Taylor sent back three and a half sacks out of the 
 first five, as being of a bad quality ; and three and a 
 half other sacks were supplied that day. The defend- 
 ant paid into court the price of a sack and a half of 
 flour. Chief Justice Tindal observing, that plaintiff had 
 proved no second order from the defendant, nor any 
 ao^reement on his part that three and a half sacks 
 saould be substituted on the 24th November, for three 
 and a half delivered on the 19th, and to be paid for 
 within a month from that day, left it to the jury to say 
 whether the delivery on the 24th was made under the 
 defendant's guaranty, and in substitution of any part of 
 the delivery on the 19th, or whether it was made under 
 a new contract. Verdict for defendant."^' 
 
 The second class of cases, in which the question, how 
 long a guaranty continues in operation, becomes impor- 
 tant, usually consists of those cases in which a guaranty 
 has been given for the fidelity of a person in some office 
 or employment.^ 
 
 Where a bond or other guaranty has been given for 
 the good behavior of third persons in offices or em- 
 ployments, very nice questions often arise as to whether 
 the liability of the surety continues, after some change 
 
 ' Tlic importance of these cases to anty by companies act, 1867," see np- 
 public coiripanies has considerably in- pendix. 
 creased since the passing of " the guar- 
 
 * Generally, as to what guaranties have been construed as continuing, 
 see Dunlip v. Gordon, 10 La. An. 243. And, as to third parties bound 
 thereby, Andrew v. Bradley, 10 La. An. 606 ; Gutta Percha, &c. Co. v. 
 Benedict, 3? N. Y. Sup. Ct. (5 Jones & Spencer), 430.
 
 25i THE LAW OF GUARANTIES. 
 
 has taken place as to the circiiiiistanccs of the appoint- 
 ment ; but (unlike the cases of meicautile guaranties) 
 certa'n fixed rules appear now to he laid down for the 
 determination of all such questions.* We will, there- 
 fore, proceed to discuss in order (1) The liability of the 
 surety after the third person's re-ajyj^ointment to the 
 sa?ne ofhce ; (2) The suiety's liability after the third 
 person's appointment to a different oftice or employment ; 
 (3) The sui'ety's liability after a change has taken place 
 in the (hities or length of term of the third person's of- 
 fice. These cases well exemplify the rule that a surety's 
 liability is not to be extended beyond the precise terrhs 
 of his encracreiiient. In determinino; the extent of this 
 lial)ility under a surety bond, it must be borne in mind 
 that the words of the condition of the bond are to be 
 resti-ained by the recitals.j- 
 
 And^rs^, let us consider those cases where, subse- 
 quently to the execution of the surety bond, the third 
 person for whom the surety has a2;reed to be answera- 
 ble, is re-appointed to the sa?ne office which he filled at 
 the time of the execution of the bond. To such cases, 
 
 * Clove V. Bailey, 6 Bu^h (Ky.) 77; Annett v. Crawford Co. 59 Pa, 196 ; 
 Beyeiie ?;. Hain, 61 Penn. St. 226; Lockwood t'. Penn, 22 L;i. An. 29 ; 
 SalteulKrry r. Loucks, 8 La. An. 95 ; Goodman v. Allen, Id. 881 ; Block v. 
 Maxwell, 10 La. An. 5 ; Aucoin v. Guillot, Id. 124; Union Bank v. Beatty, 
 Id. 301, 878; State f. Denny, Id. 335; State v. Saciirities of Breed, Id. 
 491 ; State r. Gilbert, Id. 534 ; Elam v. Heirs of Barr, Id. 565 ; Mudd v. 
 Rogers. Id. 643; Mullen r. Scott, 9 La. An. 173. 
 
 And the sureties of defaulting officers are liable as upon a valid con- 
 tract at coniniDn law. United States r. Mason, 2 Biss. 183. 
 
 An accused person, when admitted to b:ul, is, in legal contemplation, 
 in the custody of ids surety. State v. Cunningham, 10 La. An. 393. 
 
 t Mclotosh r. Merchants' &c. Ins. Co. 9 La. An. 403; Miller r. Stewart, 
 9 Wheat. 68iJ ; United States v. Ilcllegas, 3 Wash. C. C. 70 ; Same o. Til- 
 lotson, 1 Paine C. C. 305 ; Postmaster General v. Reeder, 4 Wasli. C. 0. 
 678; Hough t. ^tna Life Ins. Co. 57 111. 318 ; 11 Amer. 18.
 
 THE LIABILITY OF THE SURETY. 255 
 
 the rule applicable appears to be, that, though the words 
 of the condition of the bond be general and iii.defltiite 
 as to the time duiing which the surety is to remain lia- 
 ble, yet such liability is not to extend beyond the time 
 for which the office recited in the condition is limited to 
 be holden, because such a construction is most asrreea- 
 ble to the intent of the condition. Moreover, even 
 where the recital in the condition of the bond does not 
 state the office to be tor a specific time^ yet, if this be 
 shown by the pleadings to be the case, the liability of 
 the surety must be confined to such specific time.""'- We 
 will now illustrate what we have just stated by one or 
 two examples. 
 
 In the celebrated case of Lord Arlington "v, Mer- 
 ricke/ the bond was conditioned for the performance of 
 the duties of deputy postmaster, by A. B., '■'for and 
 during all the time that he shall continue deputy post- 
 master of the said stager It appeared, however, from a 
 
 ' 2 Wms. Saund, 813. See also Lverpool Waterworks Co. v. Atkinson, 
 
 G East, 50*7. 
 
 * So where an officer was appointed " for one year, and until another is 
 appointed in his stead," it was held that his surety was liable only during 
 the first year of his office, notwithstanding the officer was appointed from 
 year to year, and gave no new bond. Kingston Mut. Ins. Co v. Clark, 03 
 Barb. (K Y.) 196; but see Placer County v Dickersan (45 Cal. 13,i, which 
 holds that the sureties of a county treasurer are liable tor money received 
 by him, as treasurer, after the expiration of his term, so long as he remains 
 in possession of the office, and until he delivers it o^^er to his successor 
 and, to the same effect, United States v. Truesdell, 2 Bits. 78. 
 
 And the following cases hold, th'it the obligation of the surety does 
 not extend beyond the time first stipulated for, aldiough the officer be re- 
 appointed. Welsh v. Seymour, 28 Conn. 387; HoUman v. Langdon, 7 
 Jones L. (N. C.) 49 ; Erown r. Lattimore, 17 Cal. 93 ; State Tfcas. v. Mann, 
 34 Vt. (5 Shaw) 371; Collycr v. Hijrgins, 1 Tuvall (Ky.) G; Lexington 
 &c. R. R. Co. V. Elwell, 8 Allen (Mass.) 371 ; Chelmsford Co. y. Demarest, 
 7 Grny (Mass.) 1; hut Thompson v. State (37 Miss [8 George] 518), 
 holds, that where the law provides th it an officer shall hold until his suc- 
 cessor shall qualify, his bond covers his acts so long as \\i holds.
 
 256 THE LAW OF GUARANTIES. 
 
 recital in the hoiul, tliat tlie plaintiflf had appointed A. 
 B. to act as deputy postni aster /o/' the term of six months. 
 It was accordingly held, that the general words of the 
 condition were restrained by this recital, and that there- 
 fore the liability of the defendant under the bond, as 
 surety for A. B., endured only during the six months 
 recited in the bond, and did not extend to subsequent 
 re-appointments to the same office. 
 
 In Baraford v. Iles,^ a bond reciting that A. was 
 appointed assistant overseer of the parish of M. was con- 
 ditioned for the due performance of his duties " thence- 
 forth from time to time, and at all times, so long as he 
 should continue in such office." Before the date of this 
 bond, namely, on the 25th June, 1840, a vestry meeting 
 was held at which A. was elected assistant overseer 
 until the 25th March, 1841, at a salary of %(J. in the 
 pound on some sums collected, and A:d. on others. On 
 the 9th July, 1840, the justices by their warrant, which 
 recited the resolution of the vestry electing A. at the 
 aforesaid salary, aiypointed A. assistant overseer in pur- 
 suance of 59 Geo. 3, c. 12. On the 25th March, 1841, 
 he was again elected to the same office, at a salary of 
 50/. per annum, and was re-appointed by the justices, 
 and continued to be so re-elected and re-appointed by the 
 justices till March, 1846. On ceasing to hold office he 
 retained moneys in his hands. It was held that the 
 sureties were n6t liable on the bond. 
 
 In Peppin v. Cooper,^ a bond was given, which, after 
 reciting the appointment of Henry Warren to be a col- 
 lector, under an act of parliament which made the office 
 
 . * 3 Excli. 380. It appears, however, stipulation to that eflFect. See the judg- 
 
 from the case of Fiank v. Edwards, 8 mcnt of Parke, B., in this case, wliere 
 
 Exch. 214, that a mere reduction of the distinction between it and Baaiford 
 
 salary, where the original appointment v. lies, supra, is pointed out. 
 is not revolced, will not discharge the " 2 B. <fe A. 431. 
 
 surety unless indeed the bond contain a
 
 THE LIABILITY OF THE SURETY. 25Y 
 
 an annual one, was conditioned for the due collection by 
 Henry Warren, of the rates and duties at all times there- 
 after ; and it was holden that the due collection of the 
 rates for one year, was a compliance with the condition 
 of the bond. Abbott, C. J., said, " I am of opinion that 
 the condition of the bond is satisfied by the faithful col- 
 lection of rates and duties for the space of one year. It 
 is true that the words at all times hereafter^ in the con- 
 dition of the bond, would, taken by themselves, extend 
 the liability of the surety beyond that period. But 
 these words must be construed with reference to the 
 recital, and to the nature of the appointment there men- 
 tioned, and the recital is, that Warren, together with 
 Peppen, had been appointed collectors under the said 
 act of parliament. Now, the nature and duration of 
 that office must be learned from the act of parliament 
 itself; for if the statute make it an annual office, it is 
 unnecessary to state that fact either in the bond or in 
 pleading." 
 
 In the three following cases, the recitals of the bonds 
 did not indeed state the office to be holden for a specific 
 time^ but, as this appeared from the pleadings, it was 
 held that this was sufficient to control the general and 
 indefinite language of the conditions of the bonds. 
 
 In Kitson v. Julian,^ the defendants J. and S. gave 
 a joint and several bond to the plaintifii", the condition 
 whereof recited, that J. had been appointed clerk to 
 plaintiff, and, that upon such appointment being made, 
 it was agreed that J. and S., as surety for J., should 
 enter into the bond for the due execution of his said 
 office, and the condition was declared to be, that if J. 
 should " from time to time, and at all times, so long as 
 
 ' 4 EIL & Bl. 854. 
 17
 
 25S THE LAW OF GUARANTIES. 
 
 he shall continue to hold the said office or employment," 
 duly account for and pay to the plaintiff all sums of 
 money received by him, " by virtue or in execution of his 
 said office," and account for and deliver to the plaintiff 
 all books and things " which shall, at any time or times, 
 be received by, or come to his liands, by virtue or in 
 execution of his said office or employment," and "at all 
 times" regularly keep accounts of such sums, books, 
 tfec , and "faithfully and diligently, in all respects, de- 
 mean and conduct himself in the said office or employ- 
 ment, and in all matters and thincfs relatino- to or con- 
 cerning the same," the bond should be void. The 
 plaintiff declared on the bond against the defendants 
 J. and S. The defendants' principal plea (after setting 
 out the condition) alleged that the appointment of J. to 
 the said office and employment was for one year, and no 
 longer, and that J. did well and truly observe, perform, 
 &c., all the articles, <fec.,in the condition specified. The 
 re])lication to this plea alleged, that J., with the assent 
 of the defendants and the plaintiff, remained in the said 
 office and employment after the expiration of the year, 
 for a long period, and during such last-mentioned period, 
 and before the commencement of the suit, omitted to 
 account, &c., for sums received by him " under and by 
 virtue and in execution of his said office during such 
 period." On demurrer to this replication, it was held : 
 'That the allegation in the plea, as to the time for which 
 J. was in fact a])pointed, had the same effect as if the 
 period of the appointment were recited in the condition. 
 That the plea showed a good defense, the liability of the 
 defendants on the bond not extending beyond the speci- 
 fied year. That the replication did not answer the plea, 
 for that it did not show more than a fresh appointment
 
 THE LIABILITY OF THE SURETY. 259 
 
 by parol, wliich would not be comprehended in the con- 
 dition of the bond. 
 
 In Hassell v. Long/ a bond was given Ijy the de- 
 fendant's testator as surety for E. The condition of the 
 bond recited that E. had been, and still was, collector of 
 the land tax, and all other taxes and duties iinposed by 
 several acts of parliament on the inhabitants of the par- 
 ish of C, by means whereof he received from the in- 
 habitants divers sums of money. The condition, in its 
 operative part, depended on the due payment by E., 
 from time to time, and at all times thei-eafter, to the 
 receiver-general of taxes, <fec., all and every sum which 
 he (E.) should from time to time collect and receive 
 from the inhabitants of the parish, for or on account of 
 any tax or taxes then imposed, or which should or 
 might thereafter be imposed on them by any act of par- 
 liament. It was held that this bond was confined to 
 the current year for which E. was, at the date of the 
 bond, collector, although it did not appear on the con- 
 dition that he was only appointed for a year: it being 
 shown, by the defendant's plea^ that the said office of 
 collector was an annual one, and held as such by E., at 
 the date of the bond.- 
 
 In The Wardens of St, Saviour's, Southvvark, v. 
 Bostock,^ A., B. and C. entered into a bond, as sureties 
 for D. and E. The condition of the bond recited that 
 D. was, on a certain day, appointed collector of the 
 church rate of the parish of St. Saviour's, Southwark, by 
 virtue of which office he was empowered to collect and 
 receive all such moneys as were rated and assessed on 
 the inhabitants by virtue of the said rate, and for which 
 
 ' 2 M. k Selw. 362; see also St. tion, the cases of Curling i;. Chalklcn, .S 
 
 Saviour's ?■. Bostock, 2 N. R. 175. M. & S. 602, and Leadley v. Evans, 2 
 
 " See, further, as to allegine; in the Bing. 32. 
 plea that the office is limited in dura- * 2 N. R. 175,
 
 2G0 THE LAW OF GUARANTIES. 
 
 he was accountable to the wardens of the grand account. 
 It hound the sureties that D. should duly account for 
 all moneys collected or received by him, on account of 
 the above rate, and also on every other rate or rates 
 thereafter to be made and collected by him, the said D. 
 It being admitted hy the replication that the office was 
 an annual one, it was held that the sureties w^ere only 
 answerable for D. in that single appointment, and not 
 on his appointment in the ensuing year. 
 
 Where, however, it does not appear from the recital 
 of the bond itself, or in any other way, that the office, 
 for the due fulfilment of which another is surety, is lim- 
 ited in duration, then, there being nothing to control 
 the general and indefinite language of the condition of 
 the bond, the liability of the surety is coextensive in 
 duration with the length of the third person's office.* 
 
 Thus, in the case of The Mayor of Birmingham v. 
 Wright,^ certain parties had become sureties by bond. 
 The bond recited that R. had been appointed to act as 
 overseer for making and levying borough rates in that 
 part of the parish. A., which lay within the borough of 
 B., during the pleasure of the council of the borough. 
 It was conditioned for performance of the duties during 
 such time as A. should act as overseer. Upon this 
 bond it was held, that the sureties were liable beyond 
 the expiration of the year, A. continuing in office; for 
 that there was no law limiting the duration of the office 
 to a year, so as to control the express stipulations of 
 the bond. 
 
 In Curling 'v. Chalklen,^ debt was brought on a 
 
 ■ 16 Q. B. 623. Seo also Sansom t-. « 3 M. <fe S. 502. 
 
 Bell, 2 Ci.mp. 39. 
 
 * Thoiiipson V. State, 37 Miss. (8 Ge'^rge) 518 ; see page 255, note
 
 THE LIABILITY OF THE SURETY. 201 
 
 bond made by one Chalklen and his sureties. The con- 
 dition recited statute 27 Geo. 2, c. 38, and that Chalklen 
 (four years before the date of the bond) was appointed 
 by the churchwardens and parishioners of Deptford, in 
 pursuance of the statute, collector of the poor rates to be 
 levied and raised in the parish. And the condition 
 itself was that Chalklen should account, as often as re- 
 quired, for all moneys so collected and received hy him, hy 
 virtue of the act, <fec. The breach alleged was not ac- 
 counting for moneys collected and received by Chalklen 
 before the making of the bond. 
 
 The defendant pleaded, first, that C. accounted for 
 all the moneys collected and received by him before the 
 making of the bond ; secondly, that the office of collector 
 is an annual office, and that C. accounted for all the 
 moneys collected and received by him within the current 
 year of office in which the bond was made. Upon de- 
 murrer, it was held that both the pleas were ill, for, by 
 the words of the statute, the appointment was prospect- 
 ive, to collect future rates, and not retrospective only, 
 and the condition was in the words of the statute, with- 
 out any restraining words ; and it was not pleaded that 
 the office was an annual office at the time of making the 
 bond, and if it had been, yet it appeared by the statute 
 not to be an annual office, thou2:h concernins; rates 
 which are raised in the course of the year. Lord Ellen- 
 borough, C. J., in his judgment in this case, said : 
 " Here is a duty, not limited by the act to a year, so 
 that it shall extend to that period and no longer, but a 
 continuing duty on the party, so long as he shall remain 
 collector, without regard to any definite time, though it 
 may be that the rates which he is to collect are, in 
 form, limited to a less, or not a greater period than a 
 year. Tt appears, then, that there is nothing on the
 
 2G2 THE LAW OF GUARANTIES. 
 
 face of the act of parliament, nor of tlie condition, 
 directly or indirectly, to limit the period of office to a 
 year. Therefore, the obligation of the surety cannot be 
 so narrowed ; it is indefinite in its language, relating to 
 a period before and after. As to the allegation in the 
 plea that this is an annual office, 1 consider that as im- 
 pertinent. The allegation should have been, that it was 
 an annual office at the time when the obligation wp.s 
 made ; but that would not have been supported by the 
 act." 
 
 Of course, by the use of proper words, a surety may 
 provide for a continuance of his liability, on subsequent 
 reappointments to the same office, of the person whose 
 default or miscarriage is guai-anteed against. Thus, in 
 Auixero v. Keen/ a bond 2;iven to secure the faithful 
 performance of the office of a collector of parochial rates 
 (who was, by act of parliament, to be appointed by 
 trustees for a year, and then to be capable of re-election) 
 was conditioned that " from time to time, and at all 
 times thereafter, during such time as he should continue 
 in his said office, whether by virtue of his said appoint- 
 ment, or of any. reappointment thereto, or of any such 
 retainer or employment by or under the authority of 
 the said trustees, or their successors, to be elected in the 
 manner dii'ected by the said act, he should use his best 
 endeavors to collect the moneys received by means of 
 the rates in the then present or in any subsequent year," 
 &c., <fec. It was held, that the obligation of the bond 
 was not confined to the year for which he was originally 
 appointed, but extended also to all subsequent years in 
 which he was continuously reappointed. Lord Abinger, 
 C. B., in giving jud'gment in this case, said : "It would 
 
 ' 1 M. «t W. 390.
 
 THE LIABILITY OF THE SURETY, 2G3 
 
 be difficult to find any words more clear than those em- 
 ployed in this case to show that the parties ineant to 
 provide for the continuance of the party in office. In 
 order to save expense, as long as he continues in office 
 under his original appointment, or any continuing re- 
 appointment, only one bond is to be required." 
 
 AVe now come, in the secoi^d place, to cases where, 
 after the execution of the surety bond, the third person 
 Las been appointed to another, though similar^ office.^ 
 An instance of this kind is furnished by the case of The 
 Guardians of the Portsea Island Union v. Whillier.^ 
 In that case, a bond, dated the 16th December, 1852, 
 recited an order of the poor law commissioners in 
 1836, by which it was ordered that the plaintiffs (guard- 
 ians of the Portsea Union) " should appoint one or 
 more fit and proper persons to be the collector or col- 
 lectors of the poor rates of such of the parishes as the 
 guardians might deem to require a collector, and that 
 every person appointed a collector should give security 
 for the due discharge of the duties of the oflice, and fuither 
 recited that W. was duly appointed to be a collector 
 under the said order. The bond was then conditioned 
 (among other things) that W. should, during his con- 
 tinuance in his said office, and whether the district for 
 whicb he was appointed were or were not changed, * 
 faithfully discharge the duties thereof, and obey the 
 
 ' These cases might certainly, with- It is, however, thoug'ht desirable, in 
 
 out impropriety, be discussed with the order to prevent confusion, to treat these 
 
 cases which we shall next discuss, and cases separately, 
 which they to a certain extent resemble. ^ 6 Jur. N". S. 887. 
 
 * Where a bond was given for the faithful performance of the duties of' 
 deputy collector of district taxes for eight certain townships, and where- 
 the appointment was subsequently extended to take in another tov-'ushipj 
 ■without the sureties' consent, it was held that the sureties were discharged! 
 from all responsibility. Miller v. Stewart, 9 Wheat. 680.
 
 264: TUE LAW OF GUARANTIES. 
 
 lawful directions of the guardians." In the first in- 
 stance the guardians had elected three persons to be 
 collectors of the poor rate in Portsea, to each of whom 
 was assigned a portion of the parish. In 1848 the 
 guardians had divided the parish into four districts for 
 collection of the poor rates, and appointed an additional 
 collector. After the passing of statute IS & 14 Vict, 
 c. 99, it was determined to aj^point a fifth collector. 
 At this time one of the four collectors resigned, and an 
 advertisement was published that the guardians should 
 appoint " two persons to be collectors of the poor rates 
 of the parish of Portsea, to one of whom would be as- 
 sio;ned a collection of such rates from the owners of small 
 tenements." W. had applied, offering himself as a 
 candidate for one of them, and had been elected for the 
 purpose of collecting the rates from the owners of small 
 tenements. The bond mentioned above was then exe- 
 cuted by the defendant Whillier, and his surety. 
 Some years after the execution of the bond, in the year 
 1855, one of the collectors having resigned, W. applied 
 to the plaintiffs to transfer him to that district, which 
 application was acceded to. In an action upon this 
 bond it was held, that the appointment of Whillier was 
 a general one as collector of poor rates for the parish, 
 and that there being only a change of duties in 1855, 
 the obligation of the surety was not discharged. Cock- 
 burn, C. J., delivered the following judgment in the 
 case: "The question which we have to determine in 
 the first instance is, whether the appointment of the col- 
 lector, for whose default the defendant is sought to be 
 made responsible, was an appointment of him as col- 
 lector of rates generally, or of rates payable in i-espect 
 of small tenements exclusively. If the latter, then, inas- 
 much as by the subsequent act of the guardians he was
 
 THE LIABILITY OF THE SURETY. 265 
 
 employed for a different purpose, and the default arose 
 in respect of that ap^^ointnient, it follows, according to 
 well-established authorities, that the surety cannot be 
 made responsible for his default; injustice and law his 
 responsibility ceases. The question is not altogether 
 free from doubt, but, upon the whole, I think that the 
 right conclusion to arrive at is, that the appointment 
 of James William Whillier was as collector of the rates 
 of the parish of Portsea generally. In the first place, 
 the order of the j^oor law board was for the appoint- 
 ment of a collector of the j)arish generally. Then the 
 advertisement, which led to the appointment of James 
 William Whillier as collector, was for two collectors of 
 the parish, with an intimation that to one of them 
 would be assigned a collection of the rates from the 
 owners of small tenements. James William Whillier 
 applies to be appointed as one of them, and then the 
 bond, from beginning to end, treats the appointment, 
 not as a special appointment, but as an appointment 
 for collecting the rates of the parish of Portsea gener- 
 ally. Looking at the whole of the order, the adver- 
 tisement, and the bond, there is sufficient evidence to 
 lead us to the conclusion that the appointment was 
 treated as, and was in effect, an appointment generally, 
 and not for a limited or special purpose. It is true 
 that at the time of the appointment the resolution is 
 couched in language which, at first sight, appears to 
 have reference to a more limited purpose, but, looking 
 at the whole, I think that much weight is not to be at- 
 tached to that, because, it being convenient to assign to 
 each collector certain duties, they would, on the ap- 
 pointment, declare at once the particular duties which 
 each was to discharge. Suppose, without reference to 
 the collection of rates from the owners of small tene-
 
 2GG THE LAW OF GUARANTIES. 
 
 ments, the guardians liad thought proper to transfer 
 one of the district collectors to another district, there is 
 nothing in the appointment to justify the collector in 
 refusing to acquiesce in the transfer. Suppose there 
 was illness, or any other disability in a collector, can 
 it be said that one collector could not discharge the 
 duties of the other so disabled ? I think that tliis was 
 the appointment of a collector generally, and then it 
 would be competent to the guardians to determine 
 which set of duties each collector should discharge. 
 That is the good sense and justice of the case. It 
 cannot be that because the ]:)i''incipal is transferred to 
 another department, with other duties, his surety is to 
 be allowed to avoid his liability. Therefore I think 
 that this was a general appointment for the whole 
 parish, and that the defendant is liable." '^ 
 
 It seems that where a person is surety for another's 
 good behavior in a particular office, and subsequently 
 such other person is appointed to a perfectly distinct 
 office, which is incompatible and inconsistent with the 
 first appointment, the surety is discharged, f even 
 though the duties under the two appointments be sub- 
 stantially the same. This was decided in the recent 
 case of The Mailing Union v. Graham.^ There A., in 
 1865, was duly appointed by a vestry of the parish of 
 Mailing assistant overseer of the said parish at a fixed 
 salary. This appointment was made in pursuance of 
 59 Geo. 3, c. 12, s. 7.^ B. became A.'s surety. Subse- 
 
 ' L. R. 5 C. P. 201. two justices of the peace may appoint, 
 
 ' This enactment in substance pro- assistant overseers with a salarv ; and 
 
 vides, that the inliabiLaiits of a parish that the person so appointed assistant 
 
 ia vesti'y assembled may elect, and that overseer shall continue iu such office 
 
 * Miller v. Stewart, 9 Wheat. 680. 
 t See notes to pages 253, et seq.
 
 THE LIABILITY OF THE SURETY. 2G7 
 
 qiiently, under 7 <fc 8 Vict. c. 101, s. 62/ A. was ap- 
 pointed by a board of guardians of a union, on the 
 recommendation of the vestry of the parish of West 
 Mailing, collector of poor rates for the said parish, at a 
 poundage of ^d. The poor law board duly confirmed 
 this appointment. The duties under the two appoint- 
 ments were substantially the same. After the last 
 appointment, A. continued to perform the same duties 
 as he had before performed, and the appointment of 
 1865 was not otherwise resigned or revoked. A., hav- 
 ing made default after the last appointment, in keeping 
 books. and in paying over money, B. (the defendant) 
 was sued on the bond. It was held, that the two ap- 
 pointments were inconsistent and incompatible ; that 
 the appointment of 1865 ceased, by virtue of 7 & 8 Vict. 
 c. 101, s. 62, on A.'s acceptance of the appointment by 
 the guardians, and consequently that the liability of B., 
 as surety on the bond, was at an end. It would seem 
 that there was, under the circumstances, both a revoca- 
 tion of the first appointment by the vestry, and a resig- 
 nation by A. 
 
 From the recent case of Skillett v. Fletcher,^ it would 
 appear that, where a person for whose good behavior 
 another is surety, is, subsequently to the execution of 
 the surety bond, appointed to an additional office or 
 employment, the liability of the surety does not in con- 
 sequence necessarily cease. Of course, however, in such 
 
 until he shall resign the same, or until assembled, or of justices of the peace, or 
 revocation of his appointment by the of any persons other than the board of 
 vestry. guardians of such parish or union, to 
 ' Tills enactment in substance pro- appoint any collector for any such 
 vides, tiiat the poor law commissioners, parish as aforesaid, and (except when 
 on the application of the board of otherwise directed by the co;n mission- 
 guardians of any parish or union, may ers), all appointments under such powers 
 direct the appointment of a paid col- shall cease. 
 
 lector of poor rates. And all powers of = L. R. 2 C. P. 4G9 ; s. c. 1 C. P. 217. 
 
 the inliabitants of any parish in vestry See &\iO post, p. 273.
 
 26 S THE LAW OF GUARANTIES. 
 
 a case the liability of the surety would not extend to 
 anything done or omitted by the princij^al in respect to 
 such additional office or employment. 
 
 Thirdly^ we come to those cases where, after the 
 execution of the surety bond, a change has taken place 
 in the duties or length of term of the third person's 
 office or employment, or in the mode of remuuei'ating 
 such third person for his services. 
 
 It seems to be well established, that, where the 
 change made materially alters the duties of the office, 
 and this aifects the peril of the sureties, they are re- 
 leased from liability. * 
 
 Thus, in the case of Pybus v. Smith,^ sureties gave 
 a bond to the high bailiff of a county court, conditioned 
 for the good behavior in his office of one of the bailiffs 
 appointed by the high bailiff. After the execution of 
 the bond, and before the breach of the duty complained 
 of, several acts of parliament came into operation which 
 materially altered the nature of the office of bailiff. It 
 was held, that the surety was discharged, even though 
 the misconduct of the bailiff was in a matter not altered 
 hy the said acts of 'parliament. 
 
 So, also, in Bartlett v. The Att. Gen.,' one Clarke, in 
 1691, was made collector of customs in the port of Bos- 
 ton ; Bartlett and others were security for him. In 
 1698,* the duties were granted upon coals, tfec, which 
 by the statute were to be under the management of the 
 commissioners of the customs, and several clauses for 
 that purpose were contained in the act. The commis- 
 
 ' 6 E. (fe B. 902. = 10 Will. 3. 
 
 ' Parker's Reports, p. 2'7'7. 
 
 * United States v. Hillegas, 3 Wash. C. C. 70 ; Ravel v. Tillotson, 1 
 Paine C. C. 305 ; Postmaster General v. Reeder, 4 Wash. C. C. 678 ; Miller 
 v. Stewart, 9 Wheat. 680.
 
 THE LIABILITY OF THE SURETY. 2G9 
 
 sioiiers gave Clarke a deputation for that purpose, and 
 took security. Aftei-wards Clarke died; tlie customs 
 were paid; but, on this new coal duty, 1,000/. remained 
 unpaid ; upon which the bond was put in suit against 
 Bartlett, the widow and executrix of Bartlett, the sure- 
 ty, and she brought her bill, and the question was, 
 whether the bond in which Bartlett became surety ex- 
 tended to this future duty on coals. After adjournment, 
 the barons delivered their opinion seriatim^ and unani- 
 mously held, that the said bond did not extend to the 
 future duty on coals, and that the plaintiff ought to be 
 relieved ; and accordingly ordered a perpetual stay of 
 process on the said bond. 
 
 Another case, which depends on the same princi])le, 
 is Bonar v. Macdonald,^ There A. became surety, by 
 bond, for B.'s conduct as a clerk in a bank. B. v/as 
 subsequently appointed to a better situation in a branch 
 of the same bank, and A. extended his suretyship to the 
 new situation. B. afterwards, while remaining in the 
 same situation, undertook, on having his salary raised, 
 to become liable to one-fourth of the losses on discounts. 
 No communication of this new arrangement was made 
 to A. B. allowed a customer considerably to overdraw 
 his accounts, and thereby the bank lost a sum of money. 
 It was held, that the surety could not be callM on to 
 make good the loss, though it fell within the terms of 
 the original agreement, as the fresh agreement was the 
 substitution of a new agreement for the former one, and 
 A. was thereby discharged. 
 
 It appears too, that in construing an agreement in 
 the form of a bond in which a surety becomes liable 
 for the due fulfilment of an agent's duties, therein pai'- 
 
 ' 3 H. L. 226.
 
 270 THE LAW OF GLfARANTIES. 
 
 ticularly cniimeratctl, a general clause in the obligatory- 
 part (jf the bond must be inter|)reted strictly, and con- 
 trolled by reference to the prior clauses, specifying the 
 extent of the agency. It was held, accordingly, in 
 Napier v. Bruce ^ (affirming the judgment of the Court 
 of Session), that moneys received by an agent on account 
 of his employers, during the time of his agency, but not 
 in pursuance of the particular agency disclosed to the 
 surety by the specified conditions in the bond, were not 
 covered by the surety's obligation " that during the 
 w^hole time the said J. D. B. (the agent) shall continue 
 to act as agent aforesaid, in consequence of the above- 
 recited agi'feement, he shall ^vell and truly account for and 
 pay to us (the employers) all sums of money received 
 by him on our account."* 
 
 If a material change in the duties of the principal 
 be relied on as a defense, such change must be clearly 
 and distinctly alleged. Thus, for instance, where the 
 defendant became surety for G., so long as he continued 
 in that service of the bank, and at the time the guaranty 
 was given, G. was clerh to the bank : it was held, that 
 di plea stating that G. had, subsequently to the execu- 
 tion of the guaranty, been appointed manager of the 
 bank,' was bad, as not showing conclusively that G. had 
 ceased to be clerJc when he became managerr 
 
 Where, however, the change made in the duration 
 of the office does not materially alter the duties, or is 
 contemplated by the parties, the bond is not avoided. 
 
 In Oswald v. The Mayor of Berwick,^ the facts were 
 
 ' 8 C. & F. 470. Oswald, 1 E. & B. 295 ; 6 E. & B. 695. 
 
 * Anderson v. Thornton, 3 Q. B. 271. This ciise is cited in 2 Jur. ^'. S. 743, as 
 ' 6 U. L. 868 ; Mayor of Berwick v. Dobie v. The Mayor of Berwick. There 
 
 * Generally, as to the measure of damages in an action against a surety, 
 see Woodward v. Powers, 105 Mass. 108.
 
 THE LIABILITY OF THE SURETY. 271 
 
 as follows: Sureties by deed, in 1842, covenated witli 
 the Mayor and others of Berwick, that David Mui'ray, 
 who had been appointed treasurer to the corporation 
 under stat. 5 & 6 Will. 4, c. 76, s. 58, " should well and 
 truly pay to the Mayor, &c., of Berwick, or to their 
 successors, all such sums of money as the said David 
 Murray should or might recover or receive in virtue of 
 his said appointment as treasurer as aforesaid, during 
 the whole time of his continuing in the said office in 
 consequence of the said election, or under any annual 
 or other future election, of the said council to the said 
 office." At the time of the appointment of David 
 Murray, the office was an annual one, under 5 & 6 
 Will. 4, c. 76, s, 58 ; but in 1843 was passed the 6 &. 
 7 Vict. c. 89, which, by sect. 6, repealed that enactment 
 as inconvenient and unnecessary, and directed that the 
 treasurer should " thenceforth hold his office during the 
 pleasure of the council for the time being." It was held 
 by the House of Lords (affirming the judgment of the 
 Exchequer, from which, however, Jervis, C. J., Pollock, 
 C. B., and Maule, J., had dissented), that there was not 
 such a variation of tenure of the office as to discharge 
 the sureties, and that the change from an annual to a 
 perpetual appointment during pleasure was provided 
 for by the w^ords of the bond " annual or other future 
 election." Baron iVlderson in this case delivered the 
 unanimous opinion of the judges on the questions put 
 to them by the House of Lords. He stated, that even 
 assuming that an alteration of risk necessarily followed 
 frojn a change in the duration of the office, yet, as that 
 
 were in fact three actions in the court the case was argnerl. The other cases, 
 
 below, and three writs of error in the involvinp^ precisely the same point, were 
 
 Hour^c of Lords. The first of tlicse writs made to depend on the decision of the 
 
 was brounht in tlie n^me Dobie v. first. See note (aj, 5 11. L. C. p. 85G. 
 Maj'or of Berwick, and under that name
 
 272 THE LAW OF GUARANTIES. 
 
 change was contemplated, this increase of risk must 
 have been contemplated also. Baron Alderson then 
 proceeds to distinguish, in the following words, the case 
 before him from Arlington v. Merricke : " It w^s said 
 that words such as these with which we have to deal 
 are, according to Arlington v. Merricke and various 
 other cases, to be modified and construed according to 
 the words of the recital of the deed ; and then it is sug- 
 gested that the deed must be construed as containing 
 a recital that the future appointments must be made 
 according to the law which was in force when the 
 deed was executed. But this is a mere fallacy, wholly 
 inconsistent, we thinkf with the words of the covenant, 
 which are quite general. The reason for referring to 
 the recitals in a deed is, because from the circumstances 
 and facts there stated, the parties themselves have 
 plainly expressed their intention ; and, consequently, in 
 accordance with that express and specific intention, the 
 courts construe and modify the more general words of 
 their covenant. But it is somewhat strange to propose 
 that the court should construe their covenant by what 
 must be at most an implied recital suggested by the 
 counsel, and that where there is no express recital on 
 this subject at all. And therefore, after all, we can 
 only in the present case construe the words of the cov- 
 enant without any such light being thrown upon them ; 
 and, doing so, we cannot doubt that the natural and 
 reasonable construction of the words 'under any annual 
 or other future election ' is ' under any future election, 
 whether annual or other than annual. ' " * 
 
 So, too, in the case of Frank v. Edwards,^ the bond 
 
 ' See also Mayor of Dartmouth v. raised was precisely the same as that 
 Silly, 1 E. & B. 9*7, in which the point raised in Oswald t;. Mayor of Berwick. 
 
 ' 8 Exch. 214.
 
 THE LIABILITY OF THE SURETY. 278 
 
 was conditioned that T. R. should, from time to time, 
 and at all times thereafter durino^ the continuance of 
 his said appointment, faithfully account for the collec- 
 tion of the rates, tfec, and duly execute all the duties 
 of the office of permanent assistant overseer to the 
 j)arish of W. F. Subsequently to the execution of the 
 bond, the duties of the office filled by T. R. became 
 lessened in consequence of the appointment of a relie\ -• 
 ing officer, and the vestry, with the consent of T. R., 
 thereupon came to a resolution that T. R. should con- 
 tinue his office, at a reduced salary. It was held, that 
 the surety was not discharged by this action on the 
 part of the vestry, as it did not amount to a revocation 
 of the office filled by T. R, , 
 
 And another case of the same class is the recent 
 one of Skillett v. Fletcher.-^ There an action was 
 brought on a bond, conditioned for the due perform- 
 ance by A., of his duties as collector of the poor rates, 
 and of the sewers rates for the parish of St. Anne ; 
 the bond to continue in force if A. held either office 
 separately. The breach alleged was, that A. received 
 money in both capacities, and failed, to pay it over. 
 To this the defendant pleaded, that before breach, an 
 act was passed increasing A.'s duties as collector of 
 sewers rates, and under which he was also elected col- 
 lector of main drainage rates, by the persons under 
 whom he held his other appointments. This plea was 
 held bad on demurrer, on the ground that the bond ' 
 was divisible, and that the plea afforded no answer to 
 the defendant's liability for A.'s breaches of duty as 
 collector of poor rates. It was also held, that the ap- 
 pointment of A. to the new office of collector of main 
 
 ' L. R. 2 C. r. 469; s. c. 1 C. P. 217. 
 18
 
 274r THE LAW OF GUARANTIES. 
 
 drainao-e rates, did not avoid the bond, and also that 
 the cliangcs introduced by the acts did not amount to 
 an alteration of the office of collector of sewers rates, to 
 which A, was originally appointed, and, therefore, did 
 not avoid the bond. In this case Lush, J., delivered 
 the- followino; iudo-ment:^ "There is no doubt about 
 the principle that governs these cases; the only doubt 
 is as to its application in the present instance. If the 
 office is altered by the addition of new duties, the surety 
 is discharged ; and it is no answer to say, that, if the 
 old office had remained, the principal would have in- 
 curred the same debts, and the surety have been re- 
 sponsible, because the old office does not exist, and it 
 was only for wrong ^ts committed l>y the principal 
 in the old office that the surety is liable. I think the 
 present case does not come within the rule, for I think 
 the acts referred to did not alter the office of collector 
 of sewers rates ; and the addition of a new office, that 
 of collector of the main drainage rate, could not do so. 
 Even, however, if the sewers rate had been altered by 
 the act, I think the plea would be bad, for the reasons 
 given by the Cpurt of Common Pleas,^ the offices of 
 collector of poor rates and collector of sewers rates be- 
 ing distinct, and the plea affording no answer to the 
 liability arising from the breaches of duty committed 
 by Skillett as collector of poor -rates." 
 
 If, indeed, the words of the condition of the surety 
 bond show that the surety intended that his liability 
 should not continue after a change in the tenure, then 
 his liability will be discharged, if, subsequently to the 
 execution of the bond, the office for Che due fulfilment 
 • 
 
 ' See also the judgments of Black- . ' That the bond sued upon was 
 burn, J. Bramwell, E., and Martin, B., in diiuible. See s. c. L. R. 1 C. P. 217. 
 this case.
 
 THE LIABILITY OF THE SURETY. 2Y5 
 
 of wliicli he is surety is converted, from being an annual 
 one, into one during pleasure. This appears from the 
 case of The Mayor of Cambridge v. Dennis.^ There 
 the condition recited that S. had been appointed, under 
 a certain statute, treasurer to a borough, and declared 
 that it had been agreed that the obligor should join S. 
 in the bond for the due performance of the office. The 
 condition of the bond was declared to be, that if S. 
 should duly perform the office, according to the pro- 
 visions of the said statute, and of such statutes as might 
 he thereafter passed relating to the said office^ then the 
 bond should be void, cfec. At the time the bond was 
 given, the office filled by S. was an annual office, but it 
 was suhsequently converted into an office "during pleas- 
 ure." It was held that the surety was discharged, and 
 that the words in the condition, which provided that S. 
 should duly perform the office according to the provis- 
 ions ^f a certain statute, and of such statutes as anight 
 he thereafter passed relating to the said office .^ applied 
 only to statutes that might be passed during the year 
 of office. In this case, the decision in Oswald v. Mayor 
 of Berwick,^ was approved of, but considered to be in- 
 applicable, owing to the difference in the language of 
 the bonds in the two cases.'* 
 
 ' Ell. Bl. k Ell. 6G0. =" Ante, p. 270" 
 
 * Where a wife gave a mortgage as collateral security for performance 
 of the condition of her husband's bond (which was to account for all 
 goods to be consigned for sale or commission by him to the plaintiff, and 
 to pay to the plaintiff the amount of proceeds of the sales of such goods), 
 and a firm, of wj^ich the pLdntiff was a member, consigned goods to the 
 husband, it being agreed, however, between plaintiff and his partners, that 
 the consignments should be made at plaintift''s risk, and that plaintiff 
 should assume the accounts, which he did, — AeZfZ, that the wife's mortgage 
 was a security for the payment of proceeds of sale on such consignment,
 
 276 THE LAW OF GUARANTIES. 
 
 The liability of the surety may also be destroyed by 
 an alteration in tlie mode of payment, as well as by an 
 alteration in the duties of the office. For, where a 
 
 and that the above agreement was not an enlargement of the obligation of 
 suretyship. Wood v. Lockwood, 4 N. Y. S. C. R. (Thompson & Cook) 652. 
 An insurance company appointed an agent, to be paid by certain com- 
 missions which they guaranteed should amount to a specified sum 
 monthly, the agency to be terminated by either party at three months' no- 
 tice, and the sureties on the agent's bond knew of the terms of the 
 appointment. Subsequently the company and the agent agreed, without 
 the knowledge of the sureties, that he should receive increased commis- 
 sions, in consideration of releasing the company from their guaranty. Held, 
 that this change in the mode of compensation did not discharge the sure- 
 ties. Amicable Ins. Co. v. Sedgwick, 110 Mass. 163; and see, generally, 
 Vivian r. Otis, 24 Wis. 518; Joint School Dist. i;. Tyford, 27 Id. 506; Lenz 
 V. Charlton, 23 Id. 478. 
 
 In a suit upon the oflicial bond of a county treasurer, it was held, that 
 the plaintiff had the right to sue all the defendants (the principal and 
 sureties) upon the obligation, whether it be viewed as a joint or as a sev- 
 eral obligation ; that while the Code has made no change in the rule at 
 common law, where the contract is joint only, it has changed therulaios to 
 contracts several or joint and several, and an ofBcial bond of a county 
 treasurer is within the provisions of section 20, 2 G. »& H. 50. Held, also, 
 that the bringing of an action against all the parties, principal and sure- 
 ties, on such a bond, does not show an election to treat the cause of acticm 
 as joint or as several. Held, also, that in such a case the court may, if the 
 plaintiff elect, at the time of the rendition of the judgment, to treat the 
 instniment as several, render separate judgments against the defendants 
 liable; or if the plaintiff, on the contrary, then elect to treat it as joint, 
 and the defendants are shown to be jointly liable, render a joint judgment 
 against all of them ; and in either case the plaintiff can have but one satis- 
 faction. SeW, also, that the rendition of a judgment in such an action 
 against the principal alone does not merge the several liabilities of the 
 sureties (sec. 3G0 of the Code), and consequently such a judgment does not 
 authorize the court thereupon to dismiss the action as to the other defend- 
 ants. State V. Roberts, 40 Ind. 451. 
 
 As to the various sorts of ad litem bonds, /. e., bonds given in the 
 course of legal proceedings, for good conduct, performailce of obligation.^, 
 &c., &c., see, generally. Palmer v. Palmer, 8 N. Y. S. C. (Thompson & 
 Cook), 440; Post v. Doremus, Id. 626; Clapp v. Cothron, 7 Mass. T. R. 98; 
 Dole V. Moulton, 2 Johns. Cas. (N. Y.) 205 ; Grissler v. Stuyvesant, 1 
 Hun. (8 N. Y. S. C.) 110; O'Niel v. Long, 6 Cranch U. S. 40; Kepp ». 
 Brigham, 7 Joiins. (K Y.) 332.
 
 TOE LIABILITY OF THE SURETY. 277 
 
 "bond, given by a person as surety for the good behavior 
 of a third person in an office or emyiloyment, recites that 
 such third person is to be remunerated for his services 
 in a particular ay, the surety is dischai'ged from all 
 liability, if, subsequently to the execution of the bond, 
 any change be effected in the mode of remuneration. 
 This was decided in The London and North Western 
 Railway Co. v. Whinray.^ These were the facts of the 
 case: In January, 1851, the defendant, as surety, exe- 
 cuted a bond to a railway company, which, after recit- 
 ing that the company had agreed to appoint L. as their 
 clerk or agent, for the purpose of selling coal, at a yearly 
 salary of 100^., was conditioned for the due accounting 
 by L. of all moneys receiyed. by him for the use of the 
 company. L. performed the duties of such clerk or 
 agent at the above salary, until May, 1851, when it was 
 agreed between L. and the company to substitute for 
 such salary a commission of sixpence per ton on all coal 
 for which he should obtain orders. From that time L. 
 was paid for his services by such commission, which 
 amounted to a larger sum than the fixed salary. In 
 1852, L. was indebted to the company, for sums which 
 he did not pay over, and the company having sued the 
 defendant on his bond, it was held (among other 
 things), that the condition of the bond was restrained 
 by the recital, so that the defendant, as surety, only un- 
 dertook to be responsible for the faithful conduct of L. 
 whilst he continued clerk at such fixed salary, and con- 
 sequently that the defendant was not liable after the 
 chano;e in the mode of remuneration. 
 
 Having now considered from what time a guaranty 
 operates, to what things it extends, and how long it 
 
 ' 10 Exch. 11.
 
 278 THE LAW OF GUARANTIES. 
 
 continues, we may now, in the fourth place, conven- 
 iently notice therule, that, beyond the mere letter of the 
 miaranty contained within in its four corners, a surety 
 may be liable for fraud.* Thus, a surety who gives a 
 o-uaranty which he knows to be worthless, and thereby 
 induces a person to supply goods to a third 2:)erson, is 
 liable as for a fraud. This is shown by the case of Bar- 
 wick V. The English Joint Stock Bank.^ In that case, 
 the plaintiff having for some time, on a guaranty of the 
 defendants, supplied J. D., a customer of theirs, with 
 oats on credit, in order to enable him to carry out a 
 government contract, refused to continue to do so, un- 
 less he had a better guaranty. The defendants' man- 
 ager, thereupon, gave him a .written guaranty, to the 
 effect, that the customer's check on the bank in the 
 plaintiff's favor, in payment for the oats supplied, 
 should be paid on receipt of the government money, in 
 priority to any other payment ''except to this bank." 
 J. D. was then indebted to the bank to the amount of 
 12,000/., but this fact was not known to the plaintiff, 
 nor was it communicated to him by the manager. The 
 plaintiff thereupon supplied the oats to the value of 
 1,227/.; the government money, amounting to 2,676/., 
 W'as received by J. D. and paid into the bank ; but J. 
 D.'s check for the price of oats, drawn on the bank in 
 favor of the plaintiff, was dishonored by the defendant, 
 who claimed to retain the whole sum of 2,676/. in pay- 
 ment of J. D.'s debt to them. The plaintiff having 
 brought an action for false representation, and for money 
 had and received, it was held, first, that there was evi- 
 dence to go to the jury that the manager knew and 
 
 ' L. R. 2 Exch. 259; 26 L. J. Exch. 147. 
 
 * See 2^ost, Discharge op the SunEyY, as to fraud and fraudulent 
 representations generally.
 
 • THE LIABILITY OF THE SURETY. 279 
 
 intended that the guaranty should be unavailing, and 
 fraudulently concealed from the plaintiff the fact which 
 would make it so. Secondly, that the defendants would 
 be liable for such fraud in their agents. Thirdly, that 
 the fraud w\as properly charged in the declaration as 
 the fraud of the defendants. 
 
 In the cases which we have hitherto been consider- 
 ing, it will be observed that the liability of the surety 
 depends upon the circumstances as they exist, or were 
 contemplated, at the time the guaranty was given. But, 
 in some cases, the surety's liability maybe considerably 
 affected by events, not at all contemplated by the par- 
 ties, occurring subsequently to the execution of the 
 guaranty, and altering the position of the parties. The 
 most common cases in which this happens, are wdiere a 
 change takes place in the constitution of a firm to whom 
 OY for whom the guaranty is given, or where a bank- 
 ruptcy takes place. In addition to the four classes of 
 cases as to the surety's liability, which have already 
 been discussed, it is proposed, in the fifth place, to con- 
 sider the effect of a change in the persons (usually, as 
 will be found, a partnership firm) to whom or for whom 
 a guaranty is given ; and sixthly, the effect of a bank- 
 ruptcy. In the fifth place, then, we will begin by 
 noticing those cases where, subsequently to the execu- 
 tion of the surety bond, the obligees of the bond have 
 ceased to fill the character filled by them at the time of 
 the execution of such bond. 
 
 In Leadley v. Evans,^ a bond, after reciting the ap- 
 pointment of J. B. by churchwardens and overseers as 
 a collector of church and poor rates, was conditioned 
 for the duly accounting to the obligees and their suc- 
 cessors for money received pursuant to, and in execution 
 
 » 2 Bing. 32. See also Metcalf v. Bruin, 12 East, 400.
 
 280 THE LAAV OF GUARANTIES. 
 
 of the office of collector. It was held, that the obligors 
 were not responsible for receipts on account of any year 
 subsequent to that during which the obligees were in 
 office. It is to be observed that, in this case, the offices 
 of churchwarden and overseer were shown to be annval 
 offices. Indeed, the court took judicial notice of the 
 fact. Now J. B., as collector, was nothing more than 
 dejputy to the overseer, and it was therefore held by 
 Best, C. J., that as the office of overseer was annual, so 
 must be that of deputy. In M'Gahey v. Alston,^ how- 
 ever, which was much the same sort of case as Leadley 
 'V. Evans, it appeared that the office for good behavior, 
 in which security was given by bond, was not, accord- 
 ing to the construction of an act of parliament, merely 
 coexistent with that of the obligees of the bond. It 
 was, therefore, held that the bond continued in force 
 after the obligees, to whom it was given, had gone out 
 of office. 
 
 In considering the extent of the surety's liability, we 
 have already discussed from what time a guaranty 
 begins to operate ; what things it extends to ; and how 
 long its operation continues. It is now necessary that 
 we should proceed to consider, on account of what per- 
 sons, and in favor of what persons does a guaranty 
 operate ; and what is the effect of a change in the num- 
 ber or condition of such persons. For, when guaranties 
 are ^iven to partners, or as security for the debt, default 
 or miscarriage of partners, it frequently becomes a very 
 nice question for decision, whether the surety continues 
 liable after a change has taken place in the firm to or 
 for whom he has consented to become answerable. * 
 
 > 1 M. <fe W. 386. 
 
 * Vernam v. Harris, 1 Hun. (8 N. Y. S. C.) 451 ; Cole v. Sackett, 1 Hill, 
 516.
 
 THE LIABILITY OF THE SURETY. 281 
 
 The 4tli section of the mercantile law amendment 
 act, 1856/ enacts, that "No promise to answer for the 
 debt, default or miscarriage of another, made to a firm 
 consisting of two or more persons, or to a single person 
 trading under the name of a firm, and no promise to 
 answer for the debt, default or miscarriage of a firm 
 consisting of two or more persons, or of a single person 
 trading^ under the name of a firm, shall be bindins: on 
 the person making such promise in respect of anything 
 done or omitted to be done, after a change shall have 
 taken place in any one or more of tke persons con- 
 stituting the firm, or in the person trading under the 
 name of the firm, unless the intention of the parties that 
 such promise shall continue to be binding, notwithstand 
 ing such change, shall appear, either by express stipula- 
 tion, or by necessary implication from the nature of the 
 firm or otherwise." 
 
 This enactment appears merely to affirm the com- 
 mon law. This was decided in Backhouse v. Hall.^ 
 There, three persons carried on the business of ship- 
 builders under the name of "G., W. & W. J. Hall." 
 No person of that name had been in the partnership for 
 some time, and the plaintiff and defendant being both 
 aware of the constitution of the partnership, the de- 
 fendant gave the plaintiif the following guaranty : " In 
 consideration that you have, at my instance and request, 
 consented to open an account with the firm of G., W. 
 &> W. J. Hall, shipbuilders, I hereby guarantee the pay- 
 ment to you of the moneys that at any time may become 
 due, not exceeding 5,000/." It was held, that the guar- 
 anty ceased on the death of the partners, as a contrary 
 intention did not appear by express stipulation, or by 
 
 ' 19 <t 20 Vict. c. 97. » 6 B. <t 3. 507 ; 34 L. J. Q. B. 141.
 
 3S2 THE LAW OF GUARANTIES. 
 
 necessaiy implication from the nature of the firm or 
 otherwise. 
 
 As the 4th section of the mercantile law amend- 
 ment act merely affirms the common law, those cases 
 wliich were decided before the passing of this enact- 
 ment, upon the subject which we are now considering, 
 are, consequently, as binding now as ever they were. 
 We propose, therefore, to examine them, and in doing 
 so, we shall not confine ourselves exclusively to cases 
 where guaranties were given to or for pai'tners, but we 
 will also examine those strictly analogous cases where 
 guaranties were given to or for individuals who have 
 subsequently altered their condition. 
 
 In the following examples it will be observed, that 
 the judges were very careful not to bind the surety 
 heyond tlie scope of his engagement j and that, in the 
 absence of express stipulation or necessary im])lication 
 to the contrary, they have always held his liability to 
 determine on any change taking place in the persons, to 
 OY for whom the guaranty was given.-^ 
 
 We will first examine those cases where, after the 
 execution of the guaranty, a change took place in the 
 persons to whom such guaranty was given. 
 
 (1) Where the change consisted of an increase in 
 the numhe7' of persons to ivhom the guaranty tvas given.^ 
 
 Whether an increase in the number of partners to 
 whom a guaranty was given discharged the surety, 
 seems to have been somewhat unsettled before the 
 passing of the mercantile law amendment act. 
 
 In Wright v. Russell,^ a bond, conditioned for the 
 
 ' Many of these cases are collected ' 3 Wils. 530; 2 Bl. Rep. 934. 
 
 and commented upon in note {d), at p. 
 326 of 3 Douglas' Reports. 
 
 * See Russell v. Perkins, 1 Mason, 368.
 
 THE LIABILITY OF THE SURETY. 283 
 
 honesty of one Baird, a clerk, was given by the defend- 
 ant to one Wright, the employer of the clerk. Wright, 
 subsequently to the giving of the bond, entered into 
 partnersliip with one J. D. It was held, that the de- 
 fendant was no longer liable on the bond. It was said, 
 in the judgment in this case: " It is truly said that the 
 defendant (the surety) ought not to be bound beyond, 
 the scope of his engagement, which was to be answer- 
 able for the fidelity of Baird to Wright only, not to 
 Wright and any other person or persons. * * * 
 The defendant Russell engaged for Baird's faithful serv- 
 ice to Wright. When Wright took in a partner, there 
 was an. end of the obligation ; the condition was con- 
 fined to Wright only, and the breach assigned is for 
 non-payment of the money to Wright and Delafield, or 
 either of them, which is not within the condition. The 
 defendant Russell, and the other surety, might have con- 
 fidence in Wright, that he would be careful with respect 
 to the conduct of Baird in his office of broad cle?'Jc, which 
 they might not have in any partner with Wright ; and, 
 for anything that appears to the court, the defendant 
 Russell had no conception of being engaged for Baird's 
 fidelity to any other person besides Wright." 
 
 It appears that, in the case just cited, the breach as- 
 signed was for embezzling the partnership money, not 
 the money of Mr. Wright only. This circumstance is 
 commented on in Barclay v. Lucas.^ In this latter case, 
 debt was brought on a bond (reciting that the plaintiffs, 
 at the recommendation of the obligors, had agreed to 
 take one Philip Jones into their service and employ as 
 a cleric in their shop and counting-house, and the obligors 
 
 ' Cited in a note to Barker v. Par- pears that Barclay v. Lucas has had 
 kor, 1 T. R. at p. 29L But see 1 N. R. doubts thrown upon it. 
 42; 4 Taunt. 681, from which it ap-
 
 284 THE LAW OF GUARANTIES. 
 
 Lad agreed to become security for his fidelity as far as 
 500/. each), which declared that if the said P. Jones 
 should faithfully account for and pay to the plaintiffs 
 all sums of money he should at any time receive, &c., in 
 the service of the plaintiffs, and did not embezzle, <fec,, 
 then the bond was to be void. It was pleaded l)y the 
 defendants, that, after the giving of the above bond, the 
 plaintiffs received into partnership one E-obert Barclay, 
 and that P. Jones then quitted the service of the 
 plaintiffs and entered into the service of the plaintiffs 
 and Robert Barclay, and that P. Jones, all the time he 
 remained in the service of the plaintiffs alone, well and 
 faithfully accounted, &g. The plaintiffs replied, in sub- 
 stance, that the said bond was given to the liouse^ and 
 not to the individual members of the firm. The follow- 
 ing judgments were given in this case: Lord Mansfield, 
 C. J., said : " The question in this case turns upon the 
 intention of the parties at the time of entering into the 
 contract. In questions upon intention, we must look to 
 the subject-matter of the contract. It is notorious that 
 there are many banking houses in the city which con- 
 tinue for generations. This can only be done by a con- 
 stant succession of partners, and, even if they should not 
 bear the same name with the first proprtetors, yet still 
 the house frequently continues under the original firm. 
 To carry on this business it is necessary to have a great 
 number of clerks, whose office is extremely beneficial ; 
 for besides the present fees and emoluments, they are 
 frequently taken into partnership in process of time. 
 But it is of the utmost consequence to these houses that 
 the clerks should behave honestly ; and, therefore, a 
 security is taken for their fidelity. The circumstance of 
 taking in a new partner makes no difference, either as to 
 the quantity of the business, or the extent of the en-
 
 THE LIABILITY OF THE SURETY. 285 
 
 gagement. He continues to cany on the business of the 
 plaintiffs ; and this contract is coextensive with his con- 
 tinuance in the house. This is a security to the liouse 
 of the plaintiffs, and no change of partners will dis- 
 charge the obligor." BuUer, J., in the same case, said : 
 " This case is distina^uishable from that in the Common 
 Pleas ; ^ there the breach assigned was for embezzling 
 the whole partnership money ; and I observ^e from the 
 report of that case, that Mr. J. Gould lays much stress 
 upon the point that the breach assigned was for embez- 
 zling the partnership money, whereas it should have 
 been for the plaintiff's money only. I confess I do not ^ 
 see the force of that objection ; but, however, it is not 
 applicable to this case, — for here the plaintiffs have con- 
 fined the breach to the proportion of the money which 
 was actually their property." 
 
 (2) Where the change consisted of a diminution in 
 the number of the per sorts to tvhoin the guaranty ivas 
 given. 
 
 {ci) By death.^ 
 
 The effect of a change by death in the firm to whom 
 the guaranty is given, generally speaking, was to dis- 
 charge the surety. Thus, in Strange v. Lee,^ the de- 
 fendant's bond recited that A. intended forthwith to 
 open an account with C, D. &, E. as his bankers, and 
 was conditioned for the payment to C, D. &, E. of all 
 sums from time to time advanced to A. at the banking 
 house of C, D. &, E. It was held, that on C.'s death 
 the obligation ceased, and did not cover future advances, 
 made after another partner was taken in, and that A., 
 
 ' Wright V. Russell, cited ante, p. 282. ' 3 East, 484. 
 
 * Death of a principal discliarges a surety. 2 Bouvier'a Inst. 73.
 
 286 THE LAW OF GUARANTIES. 
 
 who was indebted to the house at C.'s death, having 
 afterwards paid off the balance, wliich was applied at 
 the time to the old debt incurred in C.'s lifetime, A. was 
 wholly discharged from his obligation. Lord Ellen- 
 borougli distinguished this case from Barclay v. Lucas,^ 
 on the ground that the words of the bond in the latter 
 case were difterent, for in that case the bond provided 
 that the clerk was to be taken into the service of the 
 obligees, as a clerk in their shop and counting-house, 
 wliich might be supposed to mean the same house, how- 
 ever the individual partners might change. 
 
 So, ao-ain, in Barker v. Parker,^ it was held, that a 
 bond, with a condition that a clerk should faithfully 
 serve and account for money to the obligee andhis exec- 
 utors, did not make the obligor liable for money received 
 by the clerk in the service of the obligee's executor. 
 Lord Mansfield, C. J., said : "The bond in question is 
 relative to the service with Pyott, the testator. It was 
 given as an indemnity that the clerk should be faitliful 
 to him, and should pay all the money received on his 
 account to him, or to his executors ; because money 
 might be in his hands at the time of the testator's death, 
 for which he could only account to the executors ; so 
 that It was the intention of the parties that the bond 
 should not be extended beyond the life of the testator." 
 
 To the same effect, also, is the case of Weston v. 
 Barton.^ There the condition of the bond was for the 
 repayment to five persons of all sums advanced by them, 
 or any of them, to Catterall <fe AVatson, in their capacity 
 of bankers. It was held, that the bond did not extend 
 to suras advanced after the decease of one of the five by 
 the four survivors, the four then acting as bankers; 
 
 » Ante, p. 283. ' 4 Taunt. 073. 
 
 » 1 T. R. 287.
 
 THE LIABILITY OF THE SURETY. 287 
 
 Mansfield, C. J., delivered .the following judgment : 
 " The question here is whether, the original partnership 
 being at an end, in consequence of the death of Golding, 
 the bond is still in force as security to the surviving 
 four; or whether that political personage,. as it may be 
 called, consisting of five, being dead, the bond is not at 
 an end. The case has stood over in consequence of 
 doubts which the court entertained on particular ex- 
 pressions in the bond. Many cases were cited at the 
 bar, and the result of them is, that, generally, when a 
 change takes place in the number of persons to whom 
 such a bond is given, the bond no longer exists. These 
 decisions certainly fall hard on the obligees; for I be- 
 lieve the general understanding is, that these securities 
 are given to the hanhing liouse^ and not to the particu- 
 lar individuals who compose it ; and we should readily 
 so construe the bond, if the words would permit. The 
 words of the condition, on which the question depends 
 (and which his lordship now read over), again and 
 again refer to the obligees' capacity of bankers; they 
 were bankers oiily as they were partners in their bank- 
 ing house, as it is called, and this security is conditioned 
 to pay any money advanced ' by them five, or any or 
 either of them.' Taking those last words by them- 
 selves, it might at first be conceived, that, if any one of the 
 five advanced money, this bond should secure it, but the 
 words are afterwards explained, when it is seen that the 
 money is to be paid to the five. Now it could never be 
 intended that money advanced by one* of them singly 
 should be repaid to the five; and this shows that the 
 words 'advanced by them, or any, or either of them' 
 must be confined in their meaning to money advanced 
 by any or either of them iti their capacity of bankers, 
 on behalf of all the five. This, then, being the construe-
 
 288 THE LAW OF GUARANTIES. 
 
 tion of the instrument, from almost all the cases, in 
 truth, as we may say, from all (for though there is one 
 adverse case of Barclay v. Lucas, the propriety of tliat 
 decision has been very much questioned), it results, that 
 where one of the obligees dies, the security is at an end. 
 It is not necessary now to enter into the reasons of those 
 decisions, but there may be very good reasons for such 
 a construction ; it is very probable that sureties may be 
 induced to enter into such a security by a confidence 
 which they repose in the integrity, diligence, caution 
 and accuracy of one or two of the partners. In the na- 
 ture of things, there cannot be a partnership consisting 
 of several persons, in whicli there are not some persons 
 possessing these qualities in a greater degree than the 
 rest ; and it may be that the partner dying, or going- 
 out, may be the very person on whom the sureties re- 
 lied ; it would, therefore, be very unreasonable to hold 
 the surety to his contract after such change. And, 
 thouo-li the sum here is limited, tha circumstance does 
 not alter the case; for, although* the amount of the in- 
 demnity is not indefinite, yet 3,000/. is a large sum; 
 and, even if it were only 1,000/., the same ground, in a 
 degree, holds, for there may be a great deal of difi'erence 
 in the measure of caution or discretion with which 
 difi'erent persons would advance even 1,000/.; some 
 would permit one who was almost a beggar to extend 
 his credit to that sum; others would exercise a due 
 degree of caution for the safety of the surety ; and, 
 therefore, we are of opinion, that as to such sums only, 
 w^hich were advanced hefoi^e the decease of Golding, can 
 an indemnity be recovered by the plaintiffs ; and, as to 
 the sums claimed for debts incurred since his decease, 
 the judgment must be for the defendant." 
 
 A similar decision was also come to in the case of
 
 THE LIABILITY OF THE SURETY. 289 
 
 Pomberton v. . Oakes/ There a banking partnership 
 was formed for fifteen years, between Harding, Oakes, 
 and Willington ; it was stipuhited, that if Oakes or 
 Willington shouhi die during the term, the concern 
 
 • should be continued by the survivors or survivor, the 
 deceased^s share to be j)aid to his executors up to the 
 death; but that if Harding should die, he miglit dis- 
 pose of his share to liis wife and children, and there 
 
 • was a provision for his appointing persons who should 
 carry it on as if he were living, during the minority of 
 his children ; and the business was, in that event, to be 
 carried on by the surviving partners and the appointee, 
 in the manner and on the terms and conditions directed 
 by the partnership articles, as if he had not died. 
 Hardino; made his will in favor of bis children as to 
 this share, and appointed persons to carry on the con- 
 cern with his partners ; and he, dying, this was carried 
 into effect. The question was, whether a surety for a 
 customer of the original firm, who had executed a deed 
 to the members of that firm to secure them for sums al- 
 ready due, or which should become due to them, for ad- 
 vances to he made theiiceforward to the end of the fifteen 
 years, was liable for any advance made after the death 
 of Harding. Lord Chancellor Lyndhurst held clearly, 
 that he was not liable for advances by a new firm, al- 
 though he had stipulated to secure advances made dur- 
 ing the whole fifteen years ; and that the death of Hard- 
 ing, with the substitution of the appointees, though 
 contemplated by the original articles, made a new firm. 
 
 And yet another case in which the same view pre- 
 vailed, is that of Chapman v. Beckington.^ In that case the 
 j)laintifiF and one William Chapman entered intopartner- 
 
 '4 Russ. 154. . =3 Q. B. TOS. 
 
 19
 
 '^90 THE LAW OF GUARANTIES. 
 
 ship, "by deed, will) one Potts. Potts was to be the acting 
 partner. In consideration of this trust, he and the defend- 
 ant hound themselves by a bond of guaranty to the 
 plaintiff and the said "\\^illiam Chapman, for the ob- 
 servance by Potts of the covenants in the partnership* 
 rleed, and also that Potts, during such time as he should 
 continue the acting partner in tlie said trade of the said 
 copartnership, should faithfully make and deliver a 
 true account in writing of all sums of money, notes, bills 
 and other partnership effects, which should come to his 
 hands, or which he should be intrusted with by or on 
 account of the said copartnership, and also make good, 
 answer for and pay over, the moneys due on the balance 
 to the said plaintiff and W. Chapman. Potts, after the 
 decease of W. Chapman, rendered false accounts. It 
 was held, that the copartnership referred to in the con- 
 dition of the bond w^as determined by AV. Chapman's 
 death, and that the defendant was therefore not liable 
 for Potts' default happening after that event. In this 
 case, Lord Denman, C. J., said : " Many cases were cited 
 to show that, where the surety had covenanted with the 
 house,, and not the members of the firm, or had stipu- 
 lated that his liability should not be affected by a change 
 of the members, he would remain liable to the new 
 firm. These cases we do not in the least question, our 
 judgment proceeding on the language of this condition, 
 making all due allowance for the effect which the lan- 
 guage of the deed ought to have on its construction." 
 
 Even the circumstance that the guaranty was to be 
 for a fixed time, which had not expired when the change 
 in the firm happened, made no difference as to the ap- 
 plication of the rule. Thus, in Holland v. Teed,-^ under 
 
 ' 1 Hare, 50. See also Pemberton v. Cakes, ante, p. 289.
 
 THE LIABILITY OF THE SURETY. 291 
 
 a guaranty given to a banking house consisting of several 
 partners, for the repayment of such bills drawn upon 
 them by one of their customers, as the bank might honor, 
 and any advances they might make to the same customer, 
 it was Tield that the guaranty ceased upon the death of 
 one of the partners in the bank, before the expiration 
 of the time to which the guaranty was expressed to 
 extend. It was also lield^ that bills accepted before the 
 death of the partner and payable afterwards, were with- 
 in the guaranty ; that the amount guaranteed could 
 not be increased by any act of the continuing firm and 
 the customer, after the death of the partner, although 
 such amount might be diminished by such act. 
 
 Even before the mercantile law amendment act, 
 however, the liability of the surety continued, if it* ap- 
 peared that the parties intended it should do so, not- 
 withstanding a change in the firm. Thus, in Metcalf v. 
 Bruin,^ the bond was given to " seven of the trustees of 
 the Globe Insurance Company," or to their certain at- 
 torneys, executors, administrators or assigns, to secure the 
 fiiithful services of a clerk to the Globe Insurance Com- 
 pany. The condition of the obligation was, that if the 
 clerk should, from time to time, and at all times there- 
 after, during his continuance in the service of the said 
 company^ faithfully serve the said company^ and should, 
 when required, deliver in writing a true account of all 
 moneys, &c., which in the said service should come to 
 his hands on account of the said company, and pay over 
 the balance to the said comj)any, or to such person as 
 the said compaiiy or the court of directors thereof, for 
 the ti7ne being, should appoint; and should indemnify 
 the said company, and the directors and all other mem- 
 
 ' 12 East, 400; see also Leadle;- v. Evans, 2 Bing-. 32, cited ante, p. 279.
 
 292 THE LWV OF GUARANTIES. 
 
 bers thereof, for all losses, Slc, etc., wiiicli the company 
 or any of its members might sustain, l)y anything done 
 or neglected by the said clerk, during his said service, 
 then the obligation to be void. 
 
 The Glolje Insuranoe Company was not a corpora- 
 tion. It was held, that the said bond might be put in 
 suit by the trustees, for a breach of faithful service by 
 the clerk, committed at any time during his continuance 
 in the service of the actual existing body of persons car- 
 rying on the same business under the same name, not- 
 withstanding any intermediate change of the original 
 holders of the shares by death or transfer ; the intention 
 of the parties to the instrument being apparent, to con- 
 tract for such service to be performed to the company 
 as a fluctuating body, and the intervention of tlie 
 trustees removing all legal and technical difficulties to 
 such a contract a:iade with, or suit instituted by, the 
 company themselves as a natural body. 
 
 The following is the judgment of Lord Ellenborough, 
 C. J., in the case : " We cannot enhance the obligation 
 beyond the terms of it ; the only question, therefore, is 
 upon the fair meaning of the terms used in it, and we 
 must put upon the word com2)any the sense in which the 
 parties themselves used it in this instrument. AVe could 
 not, indeed, invert the rules of law to enable persons to 
 sue as a body or company who are not a corporation ; 
 but here the bond has been given to trustees, who are 
 under no difficulty of suing upon it in their own names, 
 and the only question is, as to the description of per- 
 sons meant to be designated under the term company. 
 I will begin, therefore, by translating that word accord- 
 ing to the subject-matter, namely, the Globe Insurance 
 Company. Now, suppose a bond given to a trustee to 
 secure the performance of certain services to the com-
 
 THE LIABILITY OF THE SURETY. 293 
 
 moners of siicli a common, would there be any difficulty 
 in vipplying it to the use of the commoners for the time 
 being, whoever they might happen to be, during the 
 period for which the services were to be performed ? 
 There could be no doubt of it. Now, the persons con- 
 stituting this company labored at the time under an 
 imperfection to contract from the fluctuating nature of 
 their body, and therefore they constituted seven persons 
 to be trustees for them ; and whether those seven were 
 members of the body or not is, for this purpose, indif 
 ferent. Those seven entered into this contract for the 
 benefit of the company, and, if it had not been under- 
 stood by the contracting parties that the company 
 therein mentioned meant a fluctuating company, we 
 must suppose that they contemplated that the bond 
 might probably be gone in twenty-four hours, which 
 never could have been meant. It must, therefore, have 
 been intended to secure the faithful performance of the 
 service to a succession of masters, who might from time 
 to time constitute the company. Wilkinson then was ad- 
 mitted into the service of the Globe Insurance Company, 
 the parties w^ell knowing that a body so constituted 
 w^ould be continually changing and fluctuating, and they 
 looked to his continuance in the service of the said com- 
 pany, which could not mean a continuance in the service 
 of the same individuals, some of wdiom might be changed 
 before the wax on the bond was cold, but must have 
 meant the successors of the persons so called the Globe 
 Insurance Company. He is then to account to the said 
 company, that is, to the same successive body; and he 
 is to indemnify 'the company and the directors and all 
 other meml)er8 thereof from all losses, actions, <fec., 
 which may be sued against them, or which the said 
 company, or any member or members thereof, should
 
 294: THE LAW OF GTJARA^'TIES. • 
 
 Lear,' etc., by reason of liis neglect: all this looks to the 
 change that might take place in the body. There is 
 notliing conti'ary to any rule of hiAv in such an agree- 
 ment : a man may well agree to serve the subscribers to 
 the rooms at Bath. x\ contract with the body itself 
 at large would not have done; but a contract with the 
 trustees, for the benefit of the body, gets rid of all the 
 difficulty. So, if the contract were made with the com- 
 moners themselv^es of a certain common, the successive 
 commoners could not come into court and sue upon the 
 contract; but a trust may be created for such a body, 
 which would extend to those who were successively 
 clothed with the right of the original body. However 
 anomalous, therefore, the body may be, if we can get at 
 the intent of the contracting parties in their description 
 of it, there is nothinir illeo-al in such a contract. Nor 
 does our opinion clash with any of the cases -which have 
 proceeded upon the terms of the respective bonds. A 
 bond to A. cannot be extended to A. and B., unless, as 
 in Barclay v. Lucas, the terms of the bond may be 
 taken to explain such an intention. It may even be 
 thought that there was greater difficulty in that case 
 than in the present ; but I only collect from it the 
 principle on \Vhich it professes to proceed, which was 
 the apparent intention of the parties, at the time of en- 
 tering into the contract, to provide for a service to a 
 changeable body carrying on the same concern. In the 
 present case, the intent ap})ears very cleai'ly to look to 
 the service of a fluctuating body." In the same case, in 
 commenting on Barclay v. Lucas, Bayley, J., said : " In 
 Barclay v. Lucas, the obligation was understood as in- 
 tended to secure the service to such persons as should 
 become partners in the same house of trade. This mode 
 of considering the case gets rid of the difficulty started
 
 THE LIABILITY OF THE SURETY. 205 
 
 in the argument, that if it were extended beyond the 
 continuance of the then existing members of the body, 
 it should include all who then were or should there- 
 after become members; but it meant only the company 
 for the time being, which gets rid of the difficulty." 
 
 The case of Kipling v. Turner,^ proceeds much on 
 the same principle as Metcalf ij, Bruin.^ In Kipling v. 
 Turner, the condition of a bond, after reciting that A., 
 B. and C. had tiled a bill in equity against R. M. and 
 J. S., was that the obligor would pay all such costs as 
 the Court of Chancery should award to the defendants 
 on the hearing of the cause. It was held by Bayley, J., 
 Holroyd, J., and Best, J. (Abbott, C. J., duMtante), that 
 the death of one of the defendants, before any costs 
 awarded, could not be pleaded in discharge of the bond. 
 Bayley, J., said, " This bond is not conditioned to pay 
 such costs as the court of equity shall award to R. M. 
 and J. S. by name, but to pay such costs as shall be 
 awarded by the court to those who, at that time, fill the 
 character of defendants in equity. The case is very 
 different where persons are described hy character and 
 where they are described hy natne. If, for instance, a 
 man makes A., B, and C. his executors, and directs that 
 A., B. and C. shall sell his property, then if A. dies, B. 
 and C. cannot sell it ; but if he directs his executors to 
 sell it, B. and C. may do so. In this case, therefore, I 
 think, that if any costs were awarded to persons filling 
 the character of defendants in equity, they would be 
 within the bond, and here it appears by the replication 
 that there were costs so awarded. I am, therefore, of 
 opinion that there should be judgment for the plaintiff." 
 
 {!)) By one partner retiring from the firm. 
 
 The voluntary retirement by a partner from the firm 
 
 ' 5 B. A A. 261. " Ante, p. 291.
 
 '29G THE LAW OF GUARANTIES. 
 
 liad the same effect as liis death — it put an end to the 
 surety's liability. Thus, in Myers v. Edge/ it was held 
 that a promise in writing directed to A. B., cfec. [a house 
 in trade], to pay for goods to be furnished to another, 
 cannot be enforced in an action l)y B. and C. to recover 
 the value of goods furnished afte^* A. had witlidrawn 
 from the partnership. In Pease v. Ilirst,^ however, it 
 was held, that as the instrument (a promissory note 
 payable to the five members of a banking house or 
 order^ was framed so as to comprehend future as well 
 as present partners, the maker of the note was liable 
 notwithstanding a change in the firm by the retirement 
 of a partner .from the firm.* 
 
 (3) Where the change consisted of the incorporation 
 or consolidation of the companies to tvhom the guaranty 
 was given. 
 
 Where the effect of the consolidation is entirely to 
 chano;e the nature and circumstances of the creditors, the 
 surety is discharged. Thus, in Dance v. Girdler,^ a bond 
 was given to A., B., C, <fe;c., payable to them and their 
 successors as the governors of the Society of Musicians, 
 conditioned to secure J. H.'s faithfully accounting with 
 them and their successors, governors, <fec., as their col- 
 lector; afterxoards^ the society was incorporated by 
 letters patent, at which time J. H. had duly accounted 
 for all moneys collected by him, but after the incorpora- 
 tion, he received moneys for which he did not account. 
 It was held^ that the obligor was not liable for such de- 
 fault of J. H,in an action on the bond. Lord Mans- 
 field, C. J., in his judgment, while pointing out that it 
 
 ' n T. R. 254. See also Dry v. Daw, ^ 10 B. <fe C. 122. 
 
 10 A. & E. 30 ; Solvency Mutual Gunr- ' 1 N. R. 34. 
 
 antee Society v. Freeman, V H. cfe N. 17. 
 
 * As to partners generally, see Morss v. Gleason, 9 N. Y. S. C. R. (Hun.) 31.
 
 THE LIABILITY OF THE SURETY. 297 
 
 would be unreasonable, under the circumstances, to hold 
 tlie surety liable, inasmuch as a voluntary society, to 
 which the bond was given, is very diffei-ent in character 
 fioni the corporation which had been substituted for 
 such voluntary society, expressly bases his decision on 
 the ground, that, according to all the cases which had 
 been cited, as well as others which might be found, the 
 surety was not bound to answer for suras received, after 
 the charter of incorporation, which constituted a per- 
 fectly new body of persons in point of law. But, where 
 the consolidation makes no substantial difference in the 
 situation of the creditor and the surety, the latter is not 
 discharged. Thus, where a surety became bound by 
 bond for the good behavior of a clerk to two railway 
 companies, and, subsequently to the execution of such 
 bond, these two companies were consolidated by act of 
 parliameipt, it was held, that the surety was not dis- 
 charged, as the consolidation of the two companies did 
 not affect the duties or responsibility of the principal or 
 ♦surety, notwithstanding the new company possessed 
 additional lines.^ 
 
 We will next examine those cases where, after the 
 execution of the guaranty, a change took place in the 
 personsy«97" whom such guaranty was given. 
 
 (1) Where the cliange consisted of cm increase in the 
 number of the persoris for whom the guaranty was 
 grive7i.'^' 
 
 The general effect of an increase in the number of 
 persons for whom a guaranty is given — as, for instance, 
 an increase by the principal's entering into partnership 
 with others — would seem to be to discharge the surety 
 
 ^ London, Brighton and South Coast also Eastern Union Ry. Co. v. Cocli- 
 Ry. Co. V. Goodwin, 3 Exch. 320. See rane, 9 Exch. 197. 
 
 * Russell V. Perkins, 1 Mason (U. S.) 368.
 
 298 
 
 THE LAW OF GUARANTIES. 
 
 from liability for acts done by liis principal jointly with 
 such others. Thus, in the case of Bellairs v. Ebsvvorth,^ 
 it was decided that, if A. become bound to B., under 
 condition that C. shall truly account to B. for all suras 
 of money received by C. for B.'s use, and C. subsequently 
 to the giving of such bond, with B.'s knowledge, takes 
 D. as his partner, the guaranty does not extend to 
 sums of money received by C. for B.'s use, after the 
 formation of the partnership. Lord EUenborough, in 
 his judgment, says : " The defendant was surety for 
 Philip Nott, and not for Mingay, Nott & Co. When 
 the plaintiffs intrusted their agency to the new firm, 
 the defendant's responsibility was at an end. He by 
 no means undertook for the good conduct of any future 
 partner with whom P. Nott might associate. The re- 
 cital and the wdiole scope of the condition show that 
 the suretyship was confined to P. Nott individually." ^ 
 
 ' 3 Camp. 52. 
 
 ' The bond sued upon, as far as is 
 material, was as follows : " Whereas the 
 above-bi unden Philip Nott hath for 
 some time past acted as the aryeit for 
 tiie said A. and J. Bellairs, in the re- 
 ceiving of various large sums of money 
 for tlunn, and the said Philip Nott will 
 continue to receive money and other 
 thinijs on tlieir account: And whereas 
 the better to secure the said A. and J. 
 Bellairs the paj'nient of all such sum 
 and sums of money, which at any time 
 liereafter shall b« in the hands of the 
 said Philip Nott, belonging t) the said 
 A. and J. Bellairs, the said Pliilip Nott 
 hath proposed and agreed to execute 
 this present bond of indemnity, aucr 
 hath prevailed on the said John Nott 
 and.John Ebsworth to become surety 
 for and to join with him, the said Philip 
 Nott, in the execution hereof, and to 
 guarantee the said A. & J. Bellairs, and 
 the survivor of them, against any loss 
 tliej' may happen to sustain on account 
 of their contidence in the said Philip 
 Nott touching the matters aforesaid : 
 Now the condition of the above-written 
 Sbligation is such, that if the above- 
 
 bounden Philip Nott, his heirs, executors 
 and administrators, do and shall from 
 time to time, and at all times, as often 
 as he or they shall be thereunto required* 
 by the said A. and J. Bellairs, or the 
 survivor of them, make, draw out and 
 deliver unto them, or the survivor of 
 them, a true and just account of all such 
 sum and sums of monej', bonds, bills of 
 exchange, promissory notes or other se- 
 curities for money, which he the said 
 Philip Nott shall or may hereafter re- 
 ceive, or be intrusted with, for or on ac- 
 count of the said A. and J. Bellairs, or the 
 survivor of them ; and if the said Philip 
 Nott, his heirs, executors or administra- 
 tors, shall and do from time to time, and 
 at all times hereafter when thereunto 
 required, pay, or cause to be paid, nnto 
 the said A. and J. Bellairs, or the sur- 
 vivor of them, all such sum and sunis of 
 money which the said Philip Nott shall 
 hereafter receive, or be intrusted with, 
 for or on account of the said A. and J. 
 Bellairs, or the survivor of them, and also 
 shall, when thereunto requested, deliver 
 unto the said A. and J. Bellairs, or the 
 survivor of them, all such bonds, bills 
 of exchange, promissory notes or (.ther
 
 THE LIABILITY OF THE SURETY. 299 
 
 In IMontefiore v. Lloyd/ tlie facts were as follows : 
 The defendant, as surety, executed a bond, the condi- 
 tion of which was declared to be, that L. should pay 
 to the plaintiffs, an insurance company, all moneys re- 
 ceived by him for assurances effected with the said 
 company, and should ,duly account for all moneys re- 
 ceived by him for the said company. The defendant, 
 before signing the bond, received a letter stating that 
 L. was about to enter into partnership with F. as agents 
 of the said company. Four months afterwards L. duly 
 entered into partnership with F. The firm of F. & Co. 
 having become indebted to the company as such agents 
 in a considerable sura, it was held that this was a de- 
 fault for which the defendant was not liable. 
 
 Although, however, the general rule is as before 
 stated, yet the circumstances may be such — or the trans- 
 action may be of so peculiar a nature — that the surety^s 
 liability is not aifected by an increase in the number of 
 persons, acting in the matter guaranteect. This hap- 
 pened in the case of Leathley v. Spyer.^ The facts 
 there were as follows : J. S. wished to carry on busi- 
 ness as an insurance broker at Lloyd's. By the rules of 
 Lloyd's, he could only do -this on being admitted a sub- 
 scriber and giving security to the committee. There- 
 upon, in March, 1855, the defendant and anotlier person 
 addressed the followinsj letter to the committee: "We 
 each of us hereby hold ourselves responsible to the ex- 
 tent of 750^. for any debts that J. S. (who has applied 
 to your committee to be admitted a subscriber of your 
 
 securities for money, wldch he the said all his dealings and transactions with 
 
 Philip liott shall or may hereafter re- them, or the survivor of them, touching 
 
 ceive, oi- be intrusted with, for and on the matters aforesaid, then the above- 
 
 their account; and if the said Philip written oblii^ntion to be \oid, &e." 
 Nott shall conduct himself truly, justly ' 12 W. R. C. P. 82. 
 
 and honestly, towards the said A. and ^ L. R. 5 C. P. 595. 
 
 J. Bidlairs, and the survivor«bf them, in
 
 300 THE LAW OF GUARANTIES. 
 
 institution, to enable Lim to act as an insurance broker) 
 may contract in his caj^acity of such broker, for two 
 years from this date, and till notice." J. S. was, there- 
 jfore, admitted and acted as a broker on his sole account^ 
 until January, 1860, when he took H. into partnership, 
 \N\\\\ the knowledge of his sureties. In April, 18G0, the 
 defendant and his cosurety gave notice to the commit- 
 tee for the discontinuance of the guaranty; but, upon 
 beins: informed that J. S. could not be allowed to re- 
 main a member of Lloyd's without security, they, on 
 the 17th of that month, addressed the committee as fol- 
 low^s : " The letter w^e addressed to you, under date of 
 the lltli instant, notifying the putting an end to our 
 guaranty dated 24th March, 1858, on behalf of J. S., we 
 now hereby withdraw, and declare that such guaranty 
 shall continue in force upon the same terms and con- 
 ditions as are mentioned in such guaranty." By the 
 rules of Lloyd's, one member only of a firm is allowed 
 to act as a broker ; but he may obtain a " substitute's 
 ticket," which enables his substitute to contract for him 
 in the house. Li January. 1862, J. S. appointed II. his 
 substitute, and II., as such substitute, entered into con- 
 tracts with underwriting members of Lloyd's. All the 
 contracts made after April, 1860, whether by J. S. or his 
 substitute, w^ere made in the name and on account of the 
 partnership. Many of these contracts resulted in debts 
 due to members of Lloyd's from the partnership. It 
 was held, that the guaranty was to be construed with 
 reference to the circumstances existing in April, 1860 ; 
 that it included, therefore, all transactions by J. S. in 
 his capacity of broker after April, 1860, whether by 
 himself, personally, or by II., as his substitute, and 
 whether for his own sole benefit, or for the benefit 
 of the firm ; and, consequently, that the defendant
 
 THE LIABILITY OF THE SURETY. " 301 
 
 was liable under the guaranty for these partnership 
 debts.* "I am of opinion," says Willes, J., in this 
 case, "that the plaintiffs are entitled to judgment. 
 Looking at the guaranty, without the light of the 
 surrounding ciicumstances, it would appear to be a 
 guaranty for the acts of J. S. only, and for debts in- 
 curred for himself alone ; and Bellairs v. Ebsworth,^ 
 and Montefiore v. Lloyd,^ would have been applicable. 
 It would have been as if a simple guaranty of debts 
 due from A. had been sought to be extended and ap- 
 plied to debts incurred by A. jointly with B., whom he 
 had afterwards taken into partnership. The short 
 answer would have been, 'that the defendant agreed to 
 become surety for A., but not for B. The character of 
 the transaction would have been altogether different 
 from that for which the defendant undertook to be 
 liable. But, when the surrounding; circumstances are 
 looked at, it would appear that, though the persons 
 liable for the transactions at Lloyd's were a firm, 
 whereas the person originally contemplated by the 
 guaranty was only an individual, yet that the guaranty 
 w^as given, not with reference to the single individual 
 being the person ultimately liable, but with reference 
 to a course of business in a particular house, viz., Lloyd's, 
 such business being carried on with the individual 
 named ; and so the transactions in respect of which the 
 defendant is sought to be made liable are not different 
 in character from those to which the guaranty referred." 
 
 (2) Where the change consisted in a diminution in 
 the mmiberof tlie 'persons for whom the guaranty is given. 
 
 ' 3 Camp. 63 ; and see ante, p. 298. "" 15 C. B. N. S. 203; 33 L. J. C. P. 
 
 49 ; i.nd see ante, p. 299. 
 
 * Clafflin V. Ostrom, 54 K Y. 581.
 
 302 ' THE LAW OF GUARANTIES. 
 
 (a') By death. 
 
 The effect of the death of one of tlie principal debt- 
 ors is to determine the surety's liability. "* Thus, in 
 Simson v. Cooke/ a bond by which, after reciting the 
 partnership of J. C. and T. C, one W. P. became surety 
 for sucli sums as should be advanced, to meet bills drawn 
 l)y J. C. and T. C, or either of them, was held not to 
 extend to bills drawn by J. C. after the death of T. C. 
 
 {!)) Bij one partner i^etiring from the firm. 
 
 The voluntary retirement " of one of the principal 
 debtors likewise has the effect of putting an end to the 
 surety's liability. Tn the case of The University of 
 Cambridge v. Baldwin,^ the condition of a bond recited 
 that the chancellor, masters and scholars of the Univer- 
 sity of Cambridge had appointed B., C. and J. their 
 agents iov the sale of books printed at their press in the 
 university, and that tbe defendant had offered to enter 
 into a bond with them as a surety; and it was con- 
 ditioned that if the said B., C. and J., and the siirvivors 
 and survivor of them.^ and such other persons as should 
 or might at any time or times thereafter, in partnership 
 with them or any or either of them, act as agent or agenls 
 of the said chancellor, &c., and their successors, for all 
 books delivered or sent to them or any or either of 
 them for sale as aforesaid, and should pay all moneys 
 which should become payable to the said chancellor, 
 tfec, in respect of such sale, then the obligation to be 
 void, <fec. An action having been brought on this bond 
 against the surety, it was held that, by the retirement of 
 J. from the partnership of B., C. and J., the defendant, 
 
 • 1 Binjr. 452. " 6 M. & W. 580. 
 
 * 2 Bouvier's Institutes, 73.
 
 THE LLVBILITY OF THE SURETY. 303 
 
 as their suret}^, was discharged from all further liability 
 on this bond. 
 
 The extent of the surety's liability has now been 
 dealt with, so far as regards the time from which a 
 guaranty operates, the things to which it extends, the 
 period during which its operation continues, and the 
 persons in whose favor and on whose account its opera- 
 tion will take effect. 
 
 Let us now, in the sixth place, consider the o^jly 
 remaining question which can affect the extent of the 
 liability of the surety ; namely, the liability of a hanlc, 
 rupt surety.* 
 
 Before default on the part of a principal debtor, the 
 creditor could not, formerly, prove against the estate of 
 a bankrupt surety.^ So no proof was allowed in bank- 
 ruptcy, upon an undertaking to pay, on one month's 
 notice, the debt of another, where such notice was not 
 given before the bankruptcy, for otherwise it was not a 
 debt at the time of the bankruptcy.^ 
 
 The 56th sect, of 6 Geo. 4, c, 16, appears, however, 
 to have given the creditor an enlarged right of proof 
 against the bankrupt surety.^ Under this enactment, it 
 was decided that where a bond was given by a person 
 as surety for the payment of money by another on a 
 day named, and before such day the surety became 
 
 ^ Ex parte M'Millan, Buck, 28*7; ex \Ex parte Minet, 14 Ves. 189; ex 
 
 parte Gardom, 15 Ves. 286 ; ex parte parte Gardom, 15 Ves. 286. 
 Adney, Cowp. 460 ; Alsop v. Price, ^ Robson's Law of Bankruptcy, 2d 
 
 Dougl. 160; Overseers of St. Martin v. ed. p. 241. 
 Warren, 1 Barn. & Aid. 491 ; llotriiani 
 V. Foudrinier, 5 M. <fe S. 21. 
 
 * The bankruptcy of tlie surety ou the bond of a public officer entitle? 
 the surety to a discharge from that liability. United States v. Davis, 3 
 McLean, 483. But query^ if there has been no breach ? Avery & Hobbs 
 on Bankrupt Law of TJ. S. p. 33. Ordinarily, it seems, discharge of a 
 principal will not affect the surety's liability. Id. pp. 239, 238, and cases 
 cited. And see^oi«i, Rights of the Surety, as tj bankruptcy generally.
 
 SOtt THE LAW OF GUARANTIES. 
 
 bankrupt, and afterwards tlie principal debtor made de- 
 fault, the creditor could prove for wliat was due from 
 the principal debtor under the commission against the 
 surety.^ So where a bond of indemnity was executed 
 by a person, and before the amount of damage was 
 ascertained the obligor became bankrupt, the court 
 directed a claim to be entered, on the ground that a 
 contingent debt was proveable under sect. 56 of 6 Geo. 
 4, €.16.2^- 
 
 In the case of He Willis,^ it was decided that a 
 claim, under a guaranty, for a suai certain, wlien due, 
 was provable as a debt, and, hefore it was due, was 
 provable as a debt due on a contingency, under 6 Geo. 
 4, c. 16, s. 56. 
 
 "Where a person guaranteed to a banking company 
 " all current obligations in their hands, to "which B. 
 may be a party, and also all liis future obligations and 
 ens^ao'ements that mav come into their hands," it was 
 held that the banking com])any nught, on the bank- 
 ruptcy of the surety, j^rove for the amount of their ad- 
 vances to B. subsequent to the date of the guaranty.* 
 
 The contingent debt clauses of the old bankruptcy 
 acts did not, however, it seems, apply to cases where, 
 from the nature of the case, there might never be a 
 debt due from the principal debtor for whom the bank- 
 rupt was surety.^ To constitute a debt payable on a 
 contingency witliin the 56th section of 6 Geo. 4, c. 16, 
 it must have been a' debt capable, a 'priori^ of valua- 
 tion.^ However, the right of T)roof against a surety is 
 
 ' ^z/^aj-^e Lewis, M. tt M. 42G. See 182; see also ex parte Hope, 3 M. D. 
 
 further, ex parte Myers, Mont. & Bli. & D. 720. 
 229; ex /)arte Simpson, 1 M. & Avr. 451. ' iiz jour^e Thompson, Mont. <fe Bli. 
 
 == Ex parte Marshall, Mont. & Bli. 242. 21S, 229. 
 
 = 19 L. J. (N. S.) C. P. 30. " Per Er.skine, J., in ex joar<eThomp- 
 
 * Ex parte Liflejohn, 3 M. D. k D. son. 
 
 And see Leighton t. Atkins, 35 Me. 118.
 
 THE LIABILITY OF. THE SURETY. S05 
 
 now regulated "by the 3 1st section of the bankruptcy 
 act, 1869, and it would seem that this enactment 
 makes many claims provable which formerly were not 
 so. The words of the 31st section " are so general and so 
 comprehensive as to include almost every transaction in 
 which men can engage, from express contract to 'remote 
 possibility.' " ^ 
 
 The question sometimes arises, whether the person 
 seeking to prove in respect of a guaranty has reall}'^ a 
 sufficient interest in the guaranty to entitle him to do so. 
 This point recently arose, under the following circum- 
 stances: M. drew bills upon the B. & A. Co, and a 
 banking company, under an agreement with M., guar- 
 anteed the acceptors (also a company) that they would 
 supply them with goods to meet the bills. S. discounted 
 the bills, being informed by M, of the guaranty of the 
 banking company, but he gave no notice to the banking 
 company or to the acceptors. Afterwards the banking 
 company and the acceptors suspended payment, and 
 were wound up. M. also executed a deed of composi- 
 tion with his creditors. It was held that S. had no 
 equity to rank as a creditor of the banking company in 
 respect of the guaranty.^ Wood, L. J., in his judgment 
 in this case, pointed out that the person who induced S. 
 to discount the bills in question was the drawer of the 
 bills, but that the guaranty was not given to the drawer^ 
 but to the acceptors. He also observed, that tlie present 
 case did not resemble cases where a bank gives a letter 
 of credit, intended to be exhibited to all the world, 
 and on the faith of which money is advanced.^ In such 
 cases, all the world is invited to trust to the representa- 
 
 ' See Robson's Law of Bankruptcy, pheiis, L. R. 3 Ch. App. 7."i3; 8. c. 6 W. 
 
 2d ed. p. 242; "Williams' New Law and K. 11G2. 
 
 Practice of Bank^uptc3^ ^ See Re The Agra and Mastcrman's 
 
 'Barned'a Banking Co., In re Ste- Bank, L. R. 2 Ch. App. 391. 
 20
 
 306 THE LAW OF GUARANTIES. 
 
 tlons of the persons who have given the letter, and 
 therefore those persons are bound. Moreover, as the 
 Lord Justice also pointed out, in the present case the 
 person who had secured the money was not, in fact, the 
 person who was interested at all in the guaranty. If 
 the money had been paid, it would have been a differ- 
 ent thing. Then, said the Lord Justice, the billholder 
 might have raised his equity ; but, even then, he could 
 not raise it until he had given to the persons who so 
 guaranteed notice of his claim, and until that time the 
 persons who so guaranteed might deal with all the 
 rights, as between him and the guarantors, in any way 
 they thought fit. 
 
 While dealing with the subject of a surety becoming 
 bankrupt, it should be observ^ed, that, if the surety 
 receives security from the principal debtor, and after- 
 wards both these parties become irsolvent, the creditors 
 of the surety are entitled to regard such security as 
 part of the property of the surety, and consequently are 
 entitled to the benefit of it in discharge of their debts.^ 
 
 ■ Loder's case, L. R. 6 Eq. 491.
 
 CHAPTER V. 
 
 THE RIGHTS OF THE SURETY. 
 
 We propose to treat of the rights of the surety * 
 in the following order: I, The rights of the surety 
 against the principal debtor. 11. The rights of the 
 surety against the creditor. III. The rights of the 
 surety against his cosureties (if any). 
 
 I. The rights of the SKvety against the principal 
 debtor. 
 
 The surety possesses rights against the pi'incipal 
 debtor, some of wliich exist before the surety has been 
 
 * A surety is one who binds himself for the performance of some act 
 by another, for the doing of which that other is already bound. A surety 
 differs from a guarantor, in that the guarantor can not be sued until after 
 suit agiiinst the principal. A surety is by law presumed to have the custody 
 of his principal, while the guarantor has no control over him. The bail may 
 surrender his principal in discharge of his obligation ; the surety cannot 
 be discharged by such surrender. Bouvier's Law Dictionary, 14th ed. vol. 
 ii, art. Surety. The marginal annexation of the words " security for the 
 fulfilment of the above " to the name of a joipt promissor in a note, will 
 not change his character to that of a guarantor. Craddock v. Armour, 10 
 Watts, 258 ; Cross v. Ballard, 46 Vt. 415. 
 
 A surety cannot claim to be a guarantor at law. Weed v. Grant, 30 
 Conn. 74; Peake v. Dorwin, 25 Vt. 28; Carters. Jones, 5 Ired. 193; see 
 also note *, page 1. 
 
 But the fact that the party who appears as a principal debtor in the 
 transaction is really, and, as respects the true debtor, but secondarily 
 liable, and that evidences of debt issued were issued chiefly for the accom- 
 modation of such real debtor, does not give to the other party the com- 
 plete equiiable rights of a surety, if he himself may also be a gainer by the 
 operation entered into. Baltimore v. Baltimore R. R. 10 Wallace (U. S.) 
 543.
 
 308 THE LAW OF GUAIIANTIES. 
 
 compelled to pay anything under liis guaranty, othere 
 of which exist after lie has made payments under his 
 guaranty, and before such payments have been repaid 
 to him by the principal debtor; and others, again, 
 which are given to him for the very purpose of enabling 
 him to recover back from the principal debtor sums 
 which he has paid on his account. 
 
 The most important right which a 'surety possesses 
 before any payment has been demanded of him is, that 
 after the debt has become due, he may come into a court 
 of equity to compel the debtor to exonerate him from 
 his liability by at once paying the debt.^ "Although," 
 says Lord Keeper North, " the surety is not troubled or 
 molested for the debt, yet at any time after the money 
 becomes payable on the original bond, this court will 
 decree the 'princi])al to discharge the debt, it being un- 
 reasonable that a man should always have such a cloud 
 hang over him." ^* 
 
 The only state of circumstances, however, under 
 which a surety has a I'ight to sue his principal in equity 
 to be discharged from his liability, is, wliere the cred- 
 itor has a right to sue the principal debtor, and refuses 
 to exercise such right.^f 
 
 ' Per Sir W. Grant, M. R., in Antro- Moseley, 318. See also Hayes v. Ward, 
 
 bus?;. Davidson, 3 Meriv. 5t'.9, 679 ; per 4 Johns. Cli. Ca. 123, 132. " 
 Lord Tliiirlinv in Nisljet v. Stnitli, 2 * In Ranelagh v. Haye', 1 Vern, 
 
 Brown, Ch. Ca. 579. 582; per Sir 188, 190. 
 Joseph Jekyll, M. R., in Lee v. Brook, ' Padwick v. Stanley, 9 Hare, 627. 
 
 * At law, the surety must pay the debt bsfora he can have an action 
 against his principal, but not so in equity. After tlie debt is due, the 
 surety may resort to chan-jery, to compsl his principal to exonerate him 
 and pay the debt. West v. Chasten, 12 Fla. 315; 1 Story Eq. 332, sec. 
 327 ; 2 Id. 35, sec. 730 ; Hoffman ». Johnson, 2 Bland, 103, 105 ; King v. 
 Baldwin, 2 Johns. Ch. 554 ; 17 Johns. 3^4 ; Quick v. Black, Green (N. J.) 
 189 ; White v. Hart, 35 (Ja. 2G9. 
 
 t Barhydt ». Ellis, 45 N. Y. 107. He may also resort to securities or
 
 THE RIGHTS OF THE SURETY. 309 
 
 A mere surety for the price of goods cannot exercise 
 the right of stoppage m transitu^ on the insolvency of 
 the principal debtor.^ 
 
 After any actual payment on account of the debt 
 of the principal has been made by him, the surety is 
 entitled to rank as a creditor for the amount, though 
 only as a simple contract creditor.'^* As, however, 
 
 ' SkifFer v. Wray. 6 East, 371. 
 
 assets in the hands of third persons. McConnell v. Scott, 15 Ohio, 401 ; 
 Gary t. Cannon, 3 Ired. Eq. 64, 6o ; Conley's Heirs v. Boyle's Exrs. 5 Mon- 
 roe, 640 ; Garr v. Martin. 20 N. Y. 306 ; Sutler v. Wright, 20 Johns. 367 ; 
 Kimble v. Curamings, 3 Met. 327; Constant v Matteson, 22111. 546; Sikes 
 V. Quick, 7 Jones L. 19; Hatchett v. Pegram, 21 La. An. 722 ; 2 Bovier's 
 "inst. 76. 
 
 * When the surety has been compelled to pay the debt guarantsed, he 
 must seek reimbursement from his principal, and leave the principal to 
 sesk recourse, against the creditor. Tom v. Goodrich, 2 Johns. 213; Lafirge 
 V. Halsey, 1 Bosw. 171 ; s. c. 4 Abb. 397. He may recover it as money 
 paid. Hunt v. Amidon, 4 Hill, 345. 
 
 The surety may extinguish his principal's debt, in money or in any 
 equivalent, by set off, compromise or by novation. Pearson v. Parker, 3 N. 
 H. 366; Hatch v. SouUard, 26 Vt 295; Willie «. Green, 2 K H. 333; 
 Thatchers. Dinsmore, 5 Mass. 299; Floyd v. Day, 3 Id. 403; Beardsley's 
 Exrs. V. Root, 11 Johns 464 ; Ainslee v. Wilson, 7 Cow. 662 ; Randall v. 
 Rich, 11 Mass. 498 ; Ingalls v. Dennett, 6 Me. 79; Herndon v. Mason, 4 J. 
 J. Marsh. 575 ; Bennett v. Buchanan, 3 Ind. 47 ; Pitzer v. Harmon, 8 
 Blackf. (Ind.) 1 12 ; Howe v. B. & E. R. R. Co. 37 K Y. 297-; Chase v. Hinman, 
 8 Wend. 458 : N. Y. State Bank v. Fletcher, 5 Wend. 85 ; Clark v. Pinney, 
 6 Cow. 297; Wetherley r. Mason, 11 Johns. 518. 
 
 Without an express stipulation, a surety who pays his principal's debt 
 can only require his money to be refunded with interest, even though he 
 may have suffered other damage by sacrifice of his property to pay the 
 debt. Vance v. Lancaster, 1 Hayw. 240. 
 
 Until the debt has become due (except as hereafter noticed in note t, 
 p. 311), and the principal is in default, the surety has no other rights 
 against the principal except perhaps, that of revoking his guaranty. 3 
 Parsons on Con. 30. 
 
 His rights to compel a creditor to prosecuts, more properly arise under 
 the subsequent portion of this chupter, as to surety's rights against the 
 creditor, and will be found there considered.
 
 310 THE LAW OF GUARANTIES. 
 
 specialty debts and simple contracts now rank together 
 in the administration of assets of a deceased person/ 
 the rank of debts to which the liability of a surety be- 
 longs is now of little importance. And after 2d No- 
 vember, 1874, w^hen the new Supreme Court of judica- 
 ture act^ comes into operation, the insolvent estates of 
 deceased persons are to be administered as in bank- 
 ruptcy. Should he be made executor of the principal 
 debtor, the surety is entitled to retain the amount which 
 has been paid by him out of the assets of the principal 
 against all creditoi's of equal degree.^ Moreover, a 
 surety who, after the death of the principal debtor, pays 
 off the debt, is, in case of intestacy, entitled to admin- 
 istration as a creditor.^ 
 
 When the surety is desirous, how^ever, of obtaining 
 repayment from his principal of the sum which he has 
 paid for him, the law provides him ample means of ob- 
 taining it. " When the engagement of the surety is 
 made with the knowledge and consent of the principal 
 debtor, there is, in point of law, and implied request 
 from the latter to the surety to intervene on the princi- 
 pal's behalf if the latter makes default, and money })aid 
 by the surety for the purpose of discharging the claim 
 against the principal is money paid for the use of the 
 principal, at his request, which may be recovered from 
 the latter." ^ 
 
 The reason why the principal debtor is not chargea- 
 ble to the surety, unless the engagement of the latter 
 
 ' 32 & 33 Vict. c. 45. K. 308, 310; Warrington v. Furbor, 8 
 
 = 36 & 37 Vict. c. 66. East, 242 ; judgment of Lord Br(;ugham, 
 
 ' Boyd V. Bro'A's, 34 L. J. Ch. 605 ; in Hodgson v. Shaw. 3 Myl. A Kee. 183, 
 
 13 W. R. 419; 12 L. T. N. S. 38. 190; Morriee v. lledwin, 2 Barnard, 26; 
 
 * Williams v. Jukes, 34 L. J. 60, judgment of Lord.Eldon, C, in Wane i/. 
 
 Prob. & ilat. llorwood, 14 Ves. 28. And see Huntly 
 
 ^Addison on Cimtracts, 6th ed. p. j;. Sanderson, I Cr. <fe Mee. 467 ; Davies 
 
 573 ; and see the judgment of Lord Ken- v. Humphreys, 6 M. <fe W. 153. 
 
 yon, C J., in Exall v. Partridge, i T.
 
 THE RIGHTS OF THE SURETY. 311 
 
 was made with the former's consent, is because the 
 English laio does not allow a person to make himself 
 the creditor of another by voliinteermg to discharge his 
 obligation.^ AVheie, however, the surety, having en- 
 tered into the suretyship at the request of the principal 
 debtor, is called upon by tlie creditor to pay the debt 
 due from the principal debtor, the payment is treated 
 as so much money paid to the use of the principal 
 debtor. It can, therefore, be recovered from him in an 
 action, or by a suit in equity, or may be proved against 
 his estate on his bankruptcy.'^'' 
 
 As a general rule, as soon as the surety has paid 
 anything for the principal debtor, the latter becomes 
 chargeable to him f and since, as often as he pays any- 
 thing, a right of action accrues to him for the recovery 
 back of the sum so paid, the surety cannot accelerate 
 the liability of the principal debtor by voluntarily pay- 
 ing the principal's debt before it is due.^ f 
 
 ' James t>. Isaacs, 12 C. B. '791 ; KemiJ v. James, L. R. 6 Excli. 124; 40 L.J. 
 V. Balls, 10 Exch. 607; Cook v. Lister, Exch. 104; 24 L. T. 188. 
 13 C. B. N. 8. 643, 594 ; Jones v. Broad- " See Davies v. Humphreys, G M. & 
 
 hurst, 9 V. B. 173, 193 to 198; Bt-Wiaw W. 153. 
 
 t). Bush, 11 C. B. 191. See also Walter ' Addisou on Contract?, Glh od. p. 
 
 574. 
 
 * The discharge of the principal in baDkruptcy docs not release the 
 surety. Re Levy, 1 N. B. R. (S. D. N. Y.) 66; Jones v Haglcr, 6 Jones L. 
 542; Payne v. Able, 4 B. R. 07; s. c. 18 Pitts. L. J. 101 ; Clafliu v. Cogan, 
 48N. H. 411. 
 
 t Where, however, the surety Is liable for the immediate payment of 
 his principal's debt, he may pay it at once, and resort to any funds be- 
 longing to such principal in his possession, and he need not wait for the 
 money to be collected by an action at law. Constant v. Mattesou, 23 111. 
 546. Nor need he give his principal notice that he has paid the money. 
 Sikes «. Quick, 7 Jt.nes L. 19. The act, on the part of the surety, which 
 liberates the principal, vests in such surety its right to recover the sum 
 p nd. 2 Bouvier's Inst. 76. But the surety cannot apply funds realized 
 from collateral, in his hands, belonging to his principal, to the payment 
 of demands against the principal unconnected with his relation of surety,
 
 312 THE LAW OF GUARANTIES. 
 
 Though, as just pointed out, the surety must liave first 
 paid something for the principal d<;.otor, in order to make 
 the latter chargeable to him, yet it appears that, hy ex- 
 pi'ess contract, the surety may, before payment, be en- 
 titled to recover damages from the principal debtor. 
 Where, for instance, the principal de1:>tor has covenanted 
 with the surety to pay the amount due to tlie creditor 
 on a day named, and makes default.^ '^ 
 
 The right of the surety to sue the debtor, the moment 
 he has paid anything for the debtor, is certainly calcu- 
 lated to produce a hardship upon the principal debtor, 
 
 ' Loosemore v. Radford, 9 M. & W. 657. See also Penny v. Fox, 8 B. <fe C. 1 1 , 14. 
 
 FO long as such claims remain unpaid. Where money is so realized, it goes 
 to extinguish the surety's claims against the principal in the order in which 
 tliey accrued. Whipple v. Briggs, 30 Vt. 111. 
 
 A judgment obtained against the principal does not change the rela- 
 tion of principal and surety. Bangs v. Strong, 4 N,,Y. 318, aff'd. ; s. c. 7 Hill, 
 25(»; Aldcn v. Clark, 11 How. 209. And if the surety pay the judgment 
 l)e has a right against the creditor to an assignment of the judgment to a 
 trustee for his benefit, and to j^ursue the bail of his principal for that pur- 
 pose. Haaner r. Douglass, 4 Jones Eq. 262. He would not be entitled 
 to the afsignment, however, unless he had paid the whole of the judgment. 
 Gannett v. Blodgett, 39 N. H. 150. And unless he can show that a levy 
 against the principal resulted in no satisfaction. Brown ?>. Kidd, 34 Mass. 
 291. 
 
 W^here one advances money for another's debt, that money is deemed 
 to be the money of the one for whose benefit the payment i.s made. 
 Garr v. Martin, 20 N. Y. 306. And where one pays money as surety for 
 another, the law implies a request. Butler e;. Wiight, 20 Johns. (N. Y.) 
 307 ; Kemble ?;. Cummings. 3 Met. (Ky.) 327. 
 
 When a surety took tlie assignment of the judgment himself, held that 
 an injunction would be granted against his enforcing the judgment, ex- 
 cept as to the portion of the debt due from his cosureties. McDaniels n. 
 Lee, 37 Mo. 204. 
 
 * " Any judgment l)y wdiich the warrantee is dispossessed, ifafter proper 
 notice to his warrantor, is plenary evidence against the warrantor, in a suit 
 on the warranty." Freeman on Judgments, sec. 187; Hamilton r. Cutts, 4 
 Mass. 349 ; Knapp v. Marlboro, 34 Vt. 235 ; Chamberlain v. Preble, 1 1 
 Allen, 370 ; Littleton r. Richardson, 34 N. H. 187.
 
 THE RIGHTS OF THE SURETY. 313 
 
 by exposing him to several actions at tlie suit of the 
 surety. But, liowever convenient it might be to limit 
 the number of actions in respect of one suretyship, there 
 is certainly no rule of law which requires the surety to 
 pay the whole debt of the principal debtor before he 
 can call for reimbursement.^ " 
 
 If he please to seek that means of relief, the surety 
 may obtain relief from' a court of equity by filing a bill 
 to recover what he has paid for the principal debtor, if 
 he has uo counter security from the latter,^ f 
 
 Should the surety elect to proceed against the prin- 
 cipal debtor at common law, the right form of action for 
 him to adopt is that for " money paid." The action for 
 " money paid" lies, even though the surety did not iKiy 
 the debt by the desire of the ])rinci'pcd debtor^ J It fre- 
 
 ' Per Parke, B., in Davies v. Hum- Warrinc^ton v. Fiirbor, S Enst, 242 ; but 
 
 phreys, 6 M. h W. 153, 167. sco note [p), p. 506, of Cliitty on Con- 
 
 ' Ford V. Stobr'uige, Nels. 24 ; Hun- tracts, 9th ed. See also Alexander v. 
 
 o-erford v. Huna,'errord, Gibb. 67. Vane, 1 M. &. W. 511. 
 
 ' Exall V. Partrido-e, 1 T. R. 308 ; 
 
 * See Walker r. McKay, 3 Met. 539 ; Maguire x. Howard, 40 Penn. St. 
 391 ; Harrington v. Wallace, 8 Jones L. 43. 
 
 t But see Id. 
 
 X Where a fund is provided by a principal for the security of his surety, 
 and such fund is placed in the hands of trustees, a court of equity will 
 compel the trustees to apply the funds for that purpose as soon as the lia- 
 bility of such surety becomes fixed. Martin v. Campbell, 39 Barb. 188. 
 So, too, equity will relieve a surety who has paid the debt of his principal 
 by subrogating him to the rights of the creditor, and to I'evive and enforce 
 a dormant judgment (Neal %\ Nash, 33 Ohio St. 483), or to subrogate 
 him to all the defenses, set-offs and counter-claims of his principal. Jar- 
 ratt ». Martin, 70 N. C. 459. 
 
 Where one advances money for another, the law implies a request 
 (Butler c. Wright. 30 Johns. 307 ; Kemble v. Cummings, 3 Met. 327), and 
 considers the money as coming from the principal, Menefee v. Arnold, 55 
 Mo. 308. But where a surety pays the principal's debt in a case where he 
 IS under no legal obligation to do so, he cannot recover of his principal. Id. 
 As, for instance, where the surety p.iid the debt after it was become barred 
 bv the statute of limitations. Hatchett r. Pegram, 31 La. Ann. 732.
 
 314: °TUE LAW OF GUARANTIES. 
 
 quently linppens, liowever, that the surety takes from 
 the prIiK'ij)ul debtor a bond as a security or indemnity- 
 If he do this, the remedy of the surety is on the bond, 
 and he cannot maintain an action for money paid, for, 
 under such circumstances, there is no necessity for the 
 law to raise an im})lied ])romise, and none therefore is 
 raised.^ * 
 
 With regard to 'what the surety can recover against 
 the principal debtor, one or two poiijts are to be noticed. 
 
 In ihefrst place, it is clear that the surety is entitled 
 to recover the amount which he has actually paid, with 
 interest.^ f 
 
 A surety is entitled to recover interest from tlie 
 pi'incipal debtor, because the surety is entitled to be 
 indemnified against loss which he has sustained through 
 the default of the princi23al debtor.^ The cases upon 
 
 * Toiissaiut V. Martinnant, 2 T. R. "" Pctie v. Diincombe, 20 L. J. (N. S.) 
 
 ino. See iilso judgment of Gibbs, C. J., Q. E. 242. 
 
 in Crafts v. Tritton, 8 Taunt. 1)05, 366, = Per Erie, C. J., in Petre v. Dun- 
 
 oO*?, 308. combe, 20 L. J. Q. B. 242. 
 
 Sureties in an administration bond are bound by a decree against their 
 administrator, finding assets in his hands and non-pajment of them over, 
 to the same extent to which the administrator himself is bound. Stovall 
 K. Banks, 10 Wallace (U. S.) 583; and see also Creigh v. Hedrick, 5 West 
 Va. 140. It has been, however, held, that a surety, though notified of a 
 suit against his principal, and though assisting in conducting it, is not 
 bound by the judgment unless admitted to defend in the name of the 
 principal, or to take an appeal. Jackson v. Griswold, 4 Hill, 523; Doug- 
 lass v. Howland, 24 Wend. 85; and see Jewett ». Crane, 35 Barb. 208; s. c. 
 13 Abb. 97. As to the effect of a judgment against a principal, see Free- 
 man on Judgments, sees. 180, 22G, 470, 2d ed., and cases cited. United 
 States V. Allsbury, 4 Wallace (U. S.), 186; Kebergall ». Tyree, 2 West Va. 
 474. It is necessary in a bill to enforce a judgment lien by a surety where 
 such surety has paid the judgment, that the original judgment creditors* 
 whose judgment he has paid, be made parties. Conway v. Odbert, 2 West 
 Va. 25 ; 4 Id. 490. 
 
 * But see Hill v. Wright, 23 Ark. 530. 
 
 t See page 309, note *.
 
 THE RIGHTS OF THE SURETY. 315 
 
 direct contracts for the payment of money which omit 
 mention of interest are well distinguished, on the ground 
 that the intention of the parties is presumed to be ex- 
 pressed in the terms of their contract.^ * 
 
 It has recently been decided that a surety for a com- 
 pany cannot, after an order to wind up the company 
 lias been made, be admitted to prove in respect of in- 
 terest accruing after the said order upon payments made 
 by the surety for the company.^ This is because an 
 order to wind up a company fixes the right of its cred- 
 itors, and nullifies, as between them, all contracts for in- 
 terest.'^ After an order to wind up has been made, the 
 proper course for a surety for the company seeking to 
 recover interest (sub3eq|.uently accrued due) to adopt, is 
 to take a claim into chambers for the established value 
 of his right to indemnity at the time when the winding 
 up order was made."* It would seem, too, that in such a 
 case the claim for interest should be made ao:ainst the 
 surplus assets of the company after all its debts (jiua 
 principal moneys) are paid.** 
 
 Secondly^ the surety cannot, it appears, recover from 
 the principal debtor the costs of defending an action, 
 unless he was authorized by the principal debtor to de- 
 
 ' Peti-e V. Duncomb, 20 L. J. Q. B. ' lb. 
 
 242. * 11). 
 
 ■•' In re International Conti'act Co., * lb. 
 Hughes' claim, L. R. 13 Eq. 023. 
 
 * Wynn v. Brooke, 5 Rawle, lOG; 2 Bouvier's Inst. 78. A fsurety may 
 pay the debt and prosecute his principal, and one who for value transfers 
 a debt or security, and thereupon becomes guarantor or inJorsor, may thus 
 protect himself against the consequences of delay in enforcing the pnnci- 
 pal obligation ; but he cannot, by notice, impose upon the creditor or 
 bolder the duty of active diligence, at the risk of discharging the surety 
 by omitting it. Wells t. Mann, 45 N. Y. 337 ; Amer. 93.
 
 ol6 THE LAW OF GQARANTIES. 
 
 fend.^ * However, it lias recently been held, that when 
 a man has defended an action for a claim, for which 
 another is liable over to him, his right to recover the 
 costs incurred in the defense depends on the reasonahle- 
 ness of tliat defense, and that is a question for the jury.^ f 
 Moreover, where the plaintiff guaranteed A. that the 
 defendant w^ould, upon demand, from time to time, pay 
 to A. what should be due, and, upon defendant making 
 default, a v/i'it w^as issued against the plaintiff for the 
 amount, the writ being the first notification to him of 
 the amount being due and unpaid : it was held that the. 
 plaintifil having allowed judgment to go by default, 
 and an execution to be levied upon his goods, might re- 
 cover against the defendant the costs of the tcrit at the 
 suit of A., but 7iot of the subsequent proceedings.^ 
 
 In the tldrd place, if a surety make a payment in 
 respect of a claim known by him to be illegal or void 
 for fraud or immorality, he cannot, it seems, recover in 
 respect of such a payment from the principal del)tor/;}; 
 
 ' Gillctt V. Rippon, Mood. <fe M. 406. ' Pierce v. Tv'illiams, 23 L. J. Exch. 
 
 See also Smith v. Compion, 2 B. it Ad. 322. 
 
 407; Duffield V. Scott, 3 T. R. 374, 377; * Bryant v. Christie, 1 Stark. N. P. 
 
 Roach V. Thompson, Mood. & Malk. 487. R. 239. " 
 
 * Le Blanche v. Wilsuii, 21 W. R. 
 109. 
 
 * Whitworth v. Tillman, 40]\Ii«s. 76 ; Bennett v. Dowling, 22 Tex. 660; 
 Scully V. Hawkins, 14 La. An. 183; Bonney ». S.^eley, 2 Wend. 481. 
 
 Sureties may recover back costs paid by them in good faith. Laws of 
 N. Y. 1858, .'506, ch. 314, sec. 3; Elwood v. Deifendorf, 5 Barb. 898; Baker 
 V. Martin, 3 Barb. 634; Hubbly x. Brown. 16 Johns. 70; Skilding v. War- 
 ren, 15 .Johns. 271 ; Holmes v. Weed, 24 Barb. 540. 
 
 t Whitworth «. Tillman, 40 Miss. 76; 1 Greenlcaion Evidence, sees. 401, 
 402. 
 
 \ Kimble v. Cummings, 3 Mete. 327. But, it seems, a surety may re- 
 cover of his principal, although the principal might have avoided his con- 
 tract on the ground of usury. Ford v. Keith, 1 JIass. 138 ; Johnson v. 
 Johnson, 91 Mass 359.
 
 THE RIGHTS OF THE SURETY. 317 
 
 The defenses wliicli may be set up in an action by 
 a surety against tlie princijlal debtor, are of course 
 numerous, and varv with the cii'cumstances of each 
 case."" The defenses of payment and of the statute 
 of limitations, however, require a few words of 
 uotice.f 
 
 Payment in full to the creditor by the principal 
 debtor, if made in proper time, will, of course, always 
 afford a sufficient defense to an action brought by the 
 surety against the principal debtor. But, where there 
 are several sureties, it is apprehended that payment by 
 the principal debtor to another of the sureties would 
 not be an answer to such an action.^ % 
 
 ' See the American case of Lowry v. Lumbermere's Bank, 2 Watts & Serg. 
 
 R. 210. 
 
 * A creditor is under an equitable obligation to obtain judgment against 
 the principal debtor, if he can, without resorting to the surety, but such 
 an obligation is not recognized by law. Huey v. Pinney, 5 Minn. 
 310. 
 
 Both principal and surety may b3 sued together in the county of the 
 surety's residence. Wbite v. Ilart, 25 Ga. 269. 
 
 The surety may then pay at once and without execution. Stallwcrth 
 V. Preslar, 34 Ala. 505. 
 
 t When a surety pays the debt voluntarily, after it has become barred 
 by the statute of limitations, she cannot recover the amount paid from 
 the principal. Hatcheft «. Pegram, 21 La. An. 722. 
 
 X A surety who pays the bond after the discharge of an insolvent 
 debtor, is not bound by the discharge. Haddens v. Chambers, 2 Dallas, 
 236; 1 Yeates (Pa), 529. 
 
 But if the debt were one for which the surety was bound belbre the 
 application of the bankrupt, he is not entitled to recover from the princi- 
 pal. Fulwood V. Bushfield, 14 Penn. St. 90. 
 
 It seems, however, that the discharge of the principal by the concur- 
 rence of the creditor, where certain of his sureties have been fully in- 
 demnified, may be a bar to aa action against sureties not indemnified. 
 Moore «. Paine, 2 Wend. 123. 
 
 The act of Congress, of March 1, 1799, gave a preference to sureties on
 
 318 THE LAW OF GUARANTIES. 
 
 The statute of limitations l)egins to run against 
 a surety as soon as he lias made a payment in 
 ease of the principal debtoi-.^ '"' The time runs from 
 the time of actual pay7nent l)y the surety, and not 
 from the time when he became merely llahle to 
 pay? 
 
 Let us now see what ai'e the rights of the surety 
 against the principal debtor on the hanhrvptcy of the 
 latter. 
 
 We have seen that the surety does not become a 
 creditor of the principal debtor until he has paid some- 
 thing on his account. It was, therefore, formerly held, 
 that, unless the surety paid the debt of the principal 
 before the bankruptcy of the latter, lie could not come 
 in as a creditor under the commission.^ And, accord- 
 ingly, where a surety in a bond paid the debt, after a 
 commission of bankruptcy issued against his principal, 
 it was held, that his riglit of action against his prin- 
 cipal for the money so paid was not harred by the cer- 
 
 ' Davies v. Humphreys, 6 M. & W. v. Rogers, 1 H. B. 640 ; Taylor v. Mills, 
 
 153. Cowp. 525. See also Godilard v. Van- 
 
 " An^rove t). Tippelt, 11 L. T. K S. dcrheyden, 3 Wilson, 3G2; Young v. 
 
 (Q. B.) 70-i. t Hockley. 3 Wilson, 346. 
 
 = Paul V. Jones, 1 T. R. 590 ; Brooks 
 
 custom house bonds, and that preference is not taken away by the present 
 bankruptcy act. Chainpneys v. Lyle, 1 Biun. (Pa.) 327. 
 
 Such preference is only a preference out of the bankrupt's estate, and 
 gives the surety no right of action against him. Reed ». Emorj% S. & R. 
 (Pa.) 339. 
 
 * See Eager v. Commonwealth, 4 Mass. T. R. 183; Thayer ». Daniels, 
 110 Mass. 345. 
 
 t The statute of limitations is a good plea to an action of assumpsit by 
 by a surety who has been bound for and obliged to pay the debt of his 
 principal. Eager v. Commonwealth, 4 Mass. T. R. 182; Thayer i\ Danieb, 
 110 Mass. 345.
 
 THE RIGHTS OF THE SURETY. 319 
 
 tificate, tliongh the penalty of tlie bond was foi'feited 
 hefore the bankruptcy.^ '^ 
 
 The statute 49 Geo. 3, c. 121, s. 8, first enabled a 
 surety paying the debt of his principal, after the bank- 
 ruptcy of the latter, to prove a-j^ainst his estate. Sub- 
 sequent statutes have re-enacted this provision.^ 
 
 The bankruptcy act, 1869 (32 & 33 Vict. c. 71), does 
 not contain any section enabling a surety to prove for a 
 debt which he had paid after' the bankruptcy of his 
 principal. f A surety's right of proof depends conse- 
 quently upon previous enactments.^ We will, therefore, 
 examine some of the cases decided under these older 
 enactments. 
 
 Where a person who retired from a partnership upon 
 an undertaking of his j)artner to pay the outstanding 
 debts, was afterwards, upon the partner's becoming 
 bankrupt, obliged to pay some of the partnership debts ; 
 it was held that he was a surety.* Mere liability to pay 
 
 ' Taylor v. Mills, Cowp. 525 ; and Robson's Law of Bankruptcy, 2d ed. p. 
 
 see the judgment of Lord Mansfield in 245. 
 
 this case. * Wood v. Dodgson, 2 M. tfe S. 195; 
 
 ' 6 Geo. 4, c. 16, s. 52; 6 Geo. 4, c. 2 Rose. 47. See also Pnrker v. Rams- 
 
 168; and 12 &. 13 Vict, c, 106, s. 173 bottom, 5 D. <fe R. 138; Wallis v. Swin- 
 
 (B. A. 1849). burne, 1 Rx. 203; iiz paWe Carpenter, 
 
 ' See observations on this subject in Mont. & M'A. 1. 
 
 * See this point considered, post, in the pages on cosureties. Section 
 19 of the general bankruptcy act of Mirch 2d, 1867, provides that, 
 any person liable as bail, surety, guarantor or otherwise for the bank- 
 rupt, who shall have paid the debt or any part thereof in discharge of the 
 vphole, shall be entitled to prove such debt, or to stand in the place of the 
 creditor, if he shall have proved the same, although such payment shall 
 have been made after tha proceediugs in bankruptcy were commeuced. 
 And any person so liable for the bankrupt, and who has not paid the whole 
 of said debt, but is still liable for the same or any part thereof, may, if 
 the creditor shall fail or omit to prove such debt, prove the same, either in 
 the name of the creditor or otherwise as may be provided by the rules, and 
 subject to such regulations and liinitations as may be established by such 
 rules. See also Sigsby v. Willis, 3 B. R. 51; s. c. 2 A. L T. 169; s. c. 3 
 Bt. 371; Hump's Law & Practice of Bankruptcy, p. 76. And generally as 
 to surety, see Id. pp.420, 466-487, 4j6, 296-314, 319, 331-510, 527, 538. 
 
 t It is diifcrent with the American act, ut supra.
 
 320 THE LAW OF GUARANTIES 
 
 the outstanding partnership debts would not, however, 
 constitute the retiring partner a surety.^ * And it was 
 decided, in the case of Iloare v. White,^ that sect. 173 
 of the bankruptcy act, 1849, applied only to persons 
 under Sij?e?'Sonal liability to .pay. 
 
 Moreover, under the enactments we are now con- 
 sidering, in order to entitle the surety to prove, it is 
 necessary that the debt of the principal should be 
 actually due at the time of the issuing of the commis- 
 sion. Thus, where a man was surety for the j:)ayment 
 of a trader's rent, and no rent was due at the time of 
 the bankruptcy, it was held, that, though the surety 
 paid the rent afterwards accruing, he could not prove 
 the amount.^ 
 
 The surety, too, was not entitled to prove until the 
 whole debt was satisfied, i. e., either by payment in full 
 or by payment of T)art in discharge of the whole.* 
 Where a surety in a bond for the bankrupts, after the 
 bankrupts were certificated, joined with them and a new 
 surety in a new bond to the representatives of the cred- 
 itor, and the old bond was delivere(J up to the surety, 
 it was held, that this transaction did not amount to pay- 
 ment by the surety within Sir S. Eomilly's act (49 Geo. 
 3, c. 121, s. 8), so as to enable the surety to prove under 
 the commission.^ So, again, where a surety paid part of 
 the debt due from the principal, and thereupon the 
 
 'Abbott i\ Hicks, 7 Scott, 715; 5 Ex parte Coplestone, 4 Den. 54. See 
 
 Bing. IS". C 579. also observations of B^lk'r, J., in Paul 
 
 ■•' 3 Jiir. N. S. 415. v. Jones, 1 T. R. 599, OUO ; Kitf cr v. 
 
 ^ IM'Dounal V. Faton, 2 Moore, C44; Rayncs. Cox, 105; Martin v. Brecknell, 
 
 8 Taunt. 584. See also Ex parte^imQt, 3 M. & S. 39. 
 14 Ves. 189. * Ex parte Serjeant, 2 G. A J. 23. 
 
 * Young V. Taylor, 8 Taunt, 315 ; 
 
 * And the guaranty by a firm, of a private debt of one of the partners, 
 if made in contemplation of insolvency, is not a debt which can be proved 
 against the joint estate, by a creditor who knew that the firm was insolv- 
 ent. Phillips V. Ames, 5 Allen, 183.
 
 THE RIGHTS OF THE SURETY. 321 
 
 creditor gave him an indemnity from personal liability 
 as to the remainder, it was held, that this did not oper- 
 ate as a payment of part in discharge of the wlwle^ 
 within 49 Geo. 3, c. 121, s. 8.^ "The object of the 
 statute is very plain. If the surety pays the whole of 
 the debt, the original creditor is entitled to no advan- 
 tage under the commission ; but if he only pays a part, 
 it operates merely as a discharge of the debt pro tanio / 
 and the surety is at liberty, if he pleases, to stand in 
 the situation of the original creditor in respect of the 
 part he has paid, and is to have the benefit of such 
 dividends as the bankrupt's estate produces." ^ How- 
 ever, since a surety by bond for advances generally, but 
 under a limited penalty, is not liable beyond the 
 amount of such penalty; on paying such amount he 
 is entitled to a proportion of the dividends, on the 
 proof by the creditor to a greater amount, under the 
 bankruptcy of the principal debtor.^ * 
 
 ' Soutten V. Soutten, 2 D. <fe Ry. 521. » Ex parte Rushforth, 10 Ves. 409. 
 
 'Per Curiam, in Soutten V. Soutten See also Paley v. Field, 12 Ves. 435 ; 
 
 (tibi supra). See further, ^ajpar^e John- ^a; joarie Turner, 3 Ves. 243. 
 son, S De G. M. & G. 218. 
 
 * The discharge of a principal in bankruptcy does not affect the lia- 
 bility of a surety. Avery and Hobbs' Bankrupt Law of the U. S. p. 218, 
 sec. xxxiv. The surety may prove his claim, in the proceedings (see page 
 319, note *), but the discharge of the bankrupt is a discharge from all lia- 
 bility to the surety for money paid by him subsequent to the date of his 
 certificate of discharge. Id. ; Mace v. Wells, 7 How. (U. S.) 273 ; Bowery Sav- 
 ings Bank ■». Clinton, 2 Sandf. S. C. 113. And this is true of a penal bond, 
 as well as of any other. Garnett v. Roper, 10 Ala. 842. The discharge under 
 the law of 1841 released the bankrupt from all liabilities to sureties or 
 guarantors lor debts paid by them, although not payable until after the 
 discharge was granted. Pulwood v. Bushfield, 14 Penn. 90 ; Hardy v. 
 Carter, 8 Humph. 153 ; Crafts v. Mott, 5 Barb. (N. Y.) 305 ; Kyle v. Bostick, 
 10 Ala. 589 ; Tubbs v. Williams, 9 Ired. 1 ; and see Pogue «. Joyner, 6 Ark. 
 (1 Eng.) 271. A surety on a constable's bond, held not barred by discharge 
 of the principal from recovering money paid after the bankruptcy for a 
 default occuriing before. Ellis v. Ham, 28 Me. 385. But if a judgment 
 21
 
 322 THE LAW OF GUARANTIES 
 
 A surety was entitled to prove for costs and ex- 
 penses incurred by him in consequence of the principal's 
 default, if such costs would have been properly payable 
 by the debtor. And it was held that the certificate 
 under 49 Geo. 3, c. 121, s. 8, was a bar, not only to the 
 
 be obtained against both principal and surety, after tbe discharge ol'the 
 principal in bankruptcy, the discharge will be no bar to the surety's action 
 to recover the amount paid by him on the judgment. Leighton v. Atkins, 
 35 Me. 118. 
 
 The bankruptcy law of the United States provided, section xxxiii, 
 that " no discharge granted under this act shall release, discharge, or 
 afl'ect any person liable for the same debt for or with the bankrupt, either 
 as partner, joint contractor, indorser, surety, or otherwise. Avery & 
 Hobbs on U. S. Bankrupt Law, pp. 239, 230. A surety for a debt payable 
 in futuro at the time of the bankruptcy could prove his claim, and there- 
 fore the bankrupt is discharged by his certificate from all liability to the 
 surety for money paid by the surety subsequent to the date of the certifi- 
 cate. Mace,?'. Wells, 7 How. (U. S ) 272. 
 
 Under the law of 1841, a discharge released the bankrupt from all lia- 
 bilities to sureties for debts paid by them, although not payable until after 
 the discharge was granted. Tubbs «. Williams, 9 Ired. 1 ; Fulwood v. 
 Bushfield, 14 Penn. 90 ; and to guarantors likewise, Id. See also Hardy v. 
 Carter, 8 Humph. 1.53; Crafts v. Mott, 5 Barb. 305; Kyle t;. Bostick, 10 
 Ala. 589; Pogue v. Joyner, 6 Ark. (1 Eug.) 241. 
 
 A discharge of the principal on a penal bond docs not discharge the 
 surety. Gamett v. Roper, 10 Ala. 842. A surety on a constable's bond was 
 not barred by the discharge of the principal from recovering money paid 
 after the bankruptcy for a default occurring before. Ellis v. Ham, 28 Me. 
 385. 
 
 The discharge of a principal debtor is not an extinguishment of the 
 debt so as to discharge a surety on collateral covenants in relation to the 
 debt. Bowerj' Savings Bank v. Clinton, 2 Sandf. 113. 
 
 A discharge of one surety does not discharge him from contribution 
 for a cosurety for money paid after the bankruptcy. Goss c. Gibson, 8 
 Humph. 197; Dole v. Warren, 32 Me. 94; Frentress v. Markle, 2 Iowa 
 (Greene) 553 ; Dunn v. Sparks, 1 Ind. (Carter) 397. 
 
 But if a judgment is obtained against both principal and surety after 
 the discharge of the principal in bankruptcy, the discharge will be no bar 
 to the surety's action to recover the amount paid by him on the judgment. 
 Leighton v. Atkins, 35 Me. 118.
 
 THE RIGHTS OF THE SURETY. 323 
 
 principal debt, but also to any consequential damage 
 arising from that debt not having been duly paid.^ 
 
 Where a bond creditor, without the knowledge of 
 the principal, gave up the bond to the surety, and re- 
 ceived in satisfaction for it the promissory note of the 
 surety for the sum remaining due, it was held that the 
 dealings between the creditor-and surety had not taken 
 away the rights of the surety .against the bankrupt 
 principal debtor, and that the surety was entitled to 
 prove against the principal's estate.^ 
 
 Where a person on becoming surety for the debt or 
 default of another entered into an agreement with the 
 creditor, with the privity and consent of the principal 
 debtor, by which, in effect, the surety gave up to the 
 creditor the right of proving against the estate of the 
 principal, in the event of the principal's bankruptcy, it 
 was held, that the principal debtor had not thereby de- 
 prived himself of a right to a certificate under 5 <fe 6 
 Vict. c. 22, s. 37, which declares that a certificate shall 
 discharge from all claims and demands " made prova- 
 
 It has recently been decided, that a court of equity 
 w^ill marshal securities in favor of a surety for the re^ 
 payment of money advanced on mortgage against the 
 assignee in bankruptcy of the principal debtor [the 
 mortgagor."] ^ * • 
 
 • Van Sandau v. Corsbie, 3 B. ife Aid. ' Earle v. Oliver, 2 Exch. 71. 
 
 13. '' Hey man v. Dubois, L. R. 13 Eq. 
 
 =" Ex parte Allen, 3 De G. & J. 447. 158. 
 
 * As to the rights of guarantors and sureties under the general bank- 
 rupt act of the United States, see EKimi^'s Law and Practice of Bank- 
 ruptcy, cited ante^ p. 319, rote *; Avery and Hobbs on Bankrupt Law of 
 U. S. pp. 23, 238. As to bankruptcy of the sureties themselves, see pages 
 on cosureties further on in this chapter.
 
 324 THE LAW OF GUARANTIES. 
 
 * 
 
 II. Vie rights of the surety against the creditor. 
 
 la discussing the rights of the surety against the 
 creditor, it will be convenient to consider the rights of 
 the surety against the principal before he has been 
 called upon to make any payment under his guaranty ; 
 next, the rights possessed by the surety when he is 
 called upon to pay ; and, lastly, the rights which the 
 surety possesses after he has made a payment under his 
 eusracrement to do so. 
 
 Before any demand for payment has been made 
 upon him, and as soon as the debt of the principal 
 debtor becomes due, the surety may come into equity to 
 compel the creditor to sue for and collect such debt.^ * 
 
 Moreover, if a surety has given a bond for the good 
 behavior of another in an employment, and, after the 
 giving of such bond, the employed is guilty of defaults 
 or breaches of duty for which the employer might have 
 dismissed the employed, the surety is entitled to call on 
 the employer to dismiss him.^ f 
 
 ■ Boultbee v. Stubbs, 18 Ves. 20. Cas. 554, and Hayes v. Ward, 4 Johns- 
 Per Lord Eldon, in Wright v. Simpson, Ch. Gas. 122, 131. 
 
 6 Ves. '714, 'ZSS; and see the American ' Sanderson v. Aston, L. R. 8 Exch. 
 
 cases of King v. Baldwin, 2 Johns. Ch. 73 ; Phillips v. Foxall, L. R. 1 Q. B. 
 
 666 ; Burgess v. Eve, L. R. 13 Ex. 450. 
 
 * Page 308, note *. Where the creditor refuses or neglects to collect 
 his debt by a proper proceeding, the surety may, by bill in equity,' bring 
 both debtor and creditor before the court, and have a decree to compel the 
 debtor to make payment and discharge him. Gilliam v. Essclman, 5 Sneed, 
 86. But the surety of a lessee cannot require such lessee to proceed against 
 his principal by distress warrant. Shofiner v. Fogleman, 1 Winst. (No. 2 
 Eq.) 12. 
 
 t Where the officer or employee is continued in his office or situa- 
 tion after the time for which he v^ originally sought (and generally as to 
 bonds for good behavior), see Thompson c. Sfcite, 37 Miss. 518; Kingston 
 &c. Ins. Co. r. Clark, 33 Barb. 196; Welch v. Seymour, 28 Conn. 387; 
 Kolloman v. Langdon, 7 Jones' L. 49; Browne©. Lattimorc, 17 Cal. 83; 
 State Treasurer r. "Mann, 34 Vt. 371 ; Collier v. Higgins, 1 Duvall, 6 ; Lex-
 
 THE RIGHTS OF THE SURETY. 325 
 
 Again, it sometimes happens that a surety is, in 
 equity, discharged from all liability, but remains liable 
 at law. In such a case, the court of equity will restrain 
 the creditor from proceeding at law against the surety.^ 
 
 In some cases, also, a court of equity will set aside 
 and cancel the instrument under which the surety's lia- 
 bility arises.'^ 
 
 The rights which the surety possesses when called 
 upon to pay do not call for notice at length. Of course 
 there are a great variety of defenses, any one or more of 
 which may be open to the surety ; but, as such defenses 
 are of common occurrence in other actions, they need 
 no special remarks here. There are only two matters 
 of defense which it is necessary to make special men- 
 tion of 
 
 One of these is, that if the creditor sue the surety on 
 his guaranty, the surety may now plead equitably a set- 
 off which the principal debtor had against the creditor.^ 
 
 The other matter of defense against a claim under 
 the guaranty, which is to be observed, is, that a court of 
 equity will, at the instance of the surety, compel a 
 creditor having a claim upon two funds, one of which 
 
 > Hawksliaw v. Parkins, 2 Sw. 544 ; ' Blest v. Brown, 3 Giff. 450. 
 
 Samuel v. Howartli, 3 Mer. 272 ; Small ' Murphy v. Glass, L. R. 2 P. C. 
 
 V. Currie, 6 D. M. & G. 141 ; 2 Drew. 408 ; s. c. 6 Moo. P. C. N. S. 1 ; 20 
 
 102; Allen v. Inman, 7 Jur. 433. See L. T. N. S. 461 ; 17 W. R. 592. See 
 
 also Story, Eq. Jur. 9th ed. pars. 883, also Bechervaise v. Lewis, 20 W. R. C. 
 
 883a. P. 726. 
 
 ington &c. R. R. Co. v. Elwell, 8 Allen, 371 ; Clelmsford Co. v. Demarest, 7 
 Gray, 1. Where a bond was given for the faithful performance of the 
 duties of a deputy collector of district taxes for eight certain townships, 
 and the bond was afterwards altered without the consent of the sureties 
 thereon, so that it included one additional township, it was held that the 
 sureties were discharged from any responsibilities as to moneys collected 
 by the collector after the change was made. Miller v. Stewart, 9 Wheat. 
 680.
 
 326 ' THE LAW OF GUARANTIES. 
 
 the surety cannot make available, to resort to the latter 
 fund first} 
 
 The rights which a surety possesses against the cred- 
 itor after he has been called upon to pay the debt are 
 of considerable importance. 
 
 If, in ignorance of the facts^ he has paid the cred- 
 itor that which he was not llahle to x>a}j^ the surety is 
 entitled to recover the amount so paid.^ ^'' If, however, 
 a surety were to make an improper payment in igno- 
 rance of law ^ and not of fact merely, it is presumed that 
 he could not recover it back, for " ignorantia legis ne- 
 minem excusatr 
 
 Assuming no such question as this to arise, another 
 right is, that he is entitled to the benefit of all the se- 
 curities, whether known to him (the surety) or not,' 
 which the creditor has against the principal.^ f And it 
 is the duty of the creditor, as soon has the surety has 
 paid the debt, to make over to him all the securities 
 which he (the creditor) holds, in order that the surety 
 may recoup) himself.^ J 
 
 ' Ex parte Kendall, lY Ves. 514. 20 W. R. C. P. 726.* See also Cray- 
 
 ' Mills v. Alderbury Union, 3 Exch. thorne v. Swinburne, 14 Ves. 160; 
 
 590. Wright?;. Morley, 11 Ves. 12; Ex parte 
 
 ' Mayhew v. Crickett, 2 Swanst. 185, Rushforth, 10 Ves. 409; Pledge v. Buss, 
 
 191; Pearl I'. Deacon, 24 Beav. 186. Johns. 663 ; Robinson n. Wilson. 2 Madd. 
 
 See also Scott v. Knox, 2 Jones (Ir.), 434 ; Hotham v. Stone, cited 2 Madd. 
 
 •JVS ; Hodgson v. Shaw, 3 Myl. &. Kee. 437 ; Plumbe v. Sanday, 1 Madd. Princ. 
 
 183; Yonge v. Reynell, 9 Plare, 809. & Prac. 236; Strange v. Fooks, 4 Gift'. 
 
 * Ex parte Crisp, 1 Atk. 135; Sir 408; Hodgson v. Sliaw, 3 Myl. <fe Kee. 
 
 Daniel O'CarroVs case, Amb. 01 ; God- 183 ; Swain v. Wall, 1 Ch. Rep. 80. 
 dard i;. Whyte, 2 Giff. 419'; Brandon v. " Per Cockburn, C. J., in Wulff v. 
 
 Brandon, s'De G. & J. 524 : Parsons v. Jay, 20 W. R. Q. B. 1030, 1031 ; s. o. 
 
 Briddock, 2 Yern. 608. Observations L. R. 7 Q, B. 766. 
 of Willes, J., in Bechervaise v. Lewis, 
 
 * And see page 316, note |. 
 
 t See page 308, note t. Equity will afford relief to a surety against one 
 who, by an illegal contract, has obtained the whole estate of the principal, 
 and is attempting to enforce payment from the surety. Brcese v. Schuler, 
 48 111. 339; see also Phares c. Barbour, 49 111. 370; Wright v. Austin, 56 
 Barb. 13. 
 
 tld.; Whipple v. Briggs, 30 Vt. 111.
 
 THE RIGHTS OF THE SURETY. 327 
 
 These rights extend, and the surety is entitled, to 
 securities given aftei' the contract of suretyship.^ And 
 so, also, the surety is entitled to a transfer of any mort- 
 gage which the creditor may have taken for his debt, 
 even though the surety vras not originally aware of its 
 existence.^ But, upon the other hand, a surety is not 
 entitled to an assignment from the creditor of a mort- 
 gage, unless he pays off, not only the sum for the pay- 
 ment of which he became surety, but also such further 
 sum as may have been advanced on the security of the 
 same mortgage.^ This appears to be the case, though 
 the surety was wholly ignorant of the second advance, 
 and though such advance was not contemplated at the 
 time of the original loan.* Where, however, there is a 
 special contract excluding the right to tack a subsequent 
 debt, the creditor would not be allowed to retain the 
 mortgage, as against the surety, until payment of such 
 subsequent debt.^ And in the case of Fairbrother v. 
 Wodehouse,^ it was decided that, where two properties 
 are mortgaged by A. to B. for distinct sums, and C. is 
 surety for one only, the right of B. to retain all the se- 
 curities until repaid both debts overrides the right of 
 C. to have the benefit of the securities for that debt for 
 which he is surety. There the defendant lent A., at the 
 same time, two sums of 2,000/. and 3,000/. on distinct 
 securities, and the plaintiff was surety for the first sum. 
 It was held that the plaintiff, on paying the 2,000/., was 
 not entitled to have a transfer of the securities held for 
 that sum, until the defendant had also been paid the 
 8,000/. 
 
 ' Pledge V. Buss, Johns. 663 ; over- ' Williams v. Owen, 13 Sim. 597. 
 
 ruling Newton v. Chorlton, 10 Hare, '* lb. 
 
 646 ; 2 Drew. 333 ; Pearl v. Deacon, 24 " Bowker v. Bull, 1 Sim. N. S. 29, 
 
 Beav. 186. where, however, Williams v. Owen, supra, 
 
 '' Mayhew v. Crickett, 3 Swan. 185, waa not cited. 
 191. « 23 Beav. 28,
 
 32S THE LAW OF GUARANTIES. 
 
 The case of South v. Bloxam * is also of much im- 
 portance to sureties. There two funds were mortgaged 
 to A., with a covenant by a surety, A second mortgage of 
 one of these funds was made to B. ^ B.'s funds having 
 been exhausted in part payment of A.'s debt, and A.'s 
 mortgage having been transferred to the surety, on pay- 
 ment by him of the balance, it was held that B. had a 
 right to marshal the securities as against the surety. 
 It was also held that that the surety could not tack, as 
 against B,, the costs of a defense to an action on his 
 covenant, from which B. derived no benefit, but that he 
 might charge, as against B,, all costs incurred for the 
 common benefit of the persons interested in the estate 
 after the first mortgage. Sefnhle, also, that, as against 
 the original mortgagor, the surety might have tacked to 
 his security all costs not improperly incurred as surety. 
 And in all cases, as against the mortgagor^ a surety for 
 a mortgagor, who pays part of the mortgage, is entitled 
 to a charge on the estate,^ 
 
 There formerly existed a remarkable exception to 
 the general right of the surety to have all securities 
 held by the creditor made over to him on payment of 
 the debt. This exception w^as founded upon highly tech- 
 nical reasons. For it was held that, where a surety 
 paid off the hond debt of his principal, for which he 
 was bound, he could not require the creditor to assign 
 to him such bond debt, because it was satisfied and ex- 
 tinguished by the very act of payment by the surety.^ * 
 
 ' 2 H. <fe M. 457. Bourne, 2 You. &. Coll. 462 ; Gammon v. 
 ' Gedge v. Matson, 25 Beav. 310. Stone, 1 Ves. Sen. 339 ; but see Hotham 
 ' Copis V. Middleton, 1 T. (fe R. 231 ; v. Stone, 1 T. <fe Paiss. 226 (note); Rob- 
 Jones V. Davids, 4 Russ. 277 ; Armitage inson v. Wilson, 2 Madd. 434 ; Parsons 
 V. Baldwin, 5 Beav. 278; Dowbiggan v. v. Briddock, 2 Vern. 608. 
 
 * Moore ». Campbell, 36 Vt. 361 : Blalock o. Peake, 3 Jones' Eq. 323 ; 
 Billings V. Sprague, 49 111. 509.
 
 THE RIGHTS OF THE SURETY. 329- 
 
 And it was held, that even an assignment of the bond^ 
 executed to a trustee for the surety, at the time when 
 the surety paid off the debt, would not keep alive the 
 instrument, so as to make the surety in equity a specialty 
 creditor of the 'principal/ The law of England has, 
 in this respect, been altered by the 5th section of the 
 mercantile law amendment act.^ This enacts that 
 " every person who, being surety for the debt or duty 
 of another, or being liable with another for any debt 
 or duty, shall pay such debt or perform such duty, shall 
 be entitled to have assigned to him, or to a trustee for 
 him, every judgment, specialty or other security which 
 shall be held by the creditor in respect of such debt or 
 duty, whether such judgment, specialty or other secu- 
 rity shall or shall not be deemed at law to have been 
 satisfied by the payment of the debt or performance of 
 the duty, and such person shall be entitled to stand in 
 the place of the creditor, in any action or other proceed- 
 ing at law or in equity, in order to obtain from the 
 principal debtor, or any cosurety, cocontractor, or co- 
 debtor, as the case may be, indemnification for the ad- 
 vances made and loss sustained by the person who 
 shall have so paid such debt or performed such duty; 
 and such payment or performance so made by such 
 surety shall not be pleadable in bar of any such action 
 or other proceeding by him : provided always, that no 
 cosurety, cocontractor or codebtor shall be entitled to 
 recover from any other cosurety, cocontractor, or co- 
 debtor, by the means aforesaid, more than the just pro- 
 portion to which, as between those parties themselves, 
 such last-mentioned person shall be justly liable." 
 
 This enactment has, in one or two instances, already 
 
 ' Jones V. Davids, 4 Russ. 277. ' 19 & 20 Vict. c. 97.
 
 330 THE LAW OF GUARANTIES. 
 
 become the subject of judicial interpretation. Thus, it 
 has been decided, that the act applies to contracts en- 
 tered into before the passing of the act, provided the 
 breaches of them have taken place and payment has 
 been made by the surety, after the passing of the 
 act.^ It has also been decided, that a surety is not 
 entitled to have an assignment of the principal security, 
 unless he pays the debt in fuU.^ And it is also settled, 
 that advantage cannot be taken of the act by motion?* 
 The only way, apparently, in which it can be made 
 available, is by action.^ 
 
 Not only is a surety, who pays off his principal's 
 debt, entitled to a transfer of securities held by the 
 creditor, but he is also in all respects entitled to all the 
 equities which the creditor could have enforced.f And 
 this right j^revails, not merely against the principal 
 debtor, but also against all persons claiming under him.^ 
 A. mortgaged his estate to C, and B. became A.'s surety 
 for the debt. Afterwards A. mortgaged the estate to 
 D., who had notice of the first mortgage. The first 
 mortgage was subsequently paid off, partly by B., the 
 surety, but D. got a transfer of the legal estate. It was 
 held that the surety had still priority over D. for the 
 
 ' In re Cochran, L. R. 5 Eq. 209 ; 16 ' Ewart v. Latta, 4 Macq. H. L. R. 
 
 W. R. 324; 17 L. T. N. S. 487; 37 L. 983. 
 
 J. Chanc. 293, following Lockhart v. ' Phillips v. Dickson, 8 C. B. N. S. 
 
 Reiliy, 1 De G. <fe J. 464 ; 27 L. J. Ch. 391. 
 54. * lb. 
 
 " Drew V. Lockett, 32 Beav. 499. 
 
 * A surety need not give the principal notice of a suit or motion against 
 him. Vance i. Lancaster, 3 Harper, 130. 
 
 t Page 317, note |. So, also, a surety has a right to an assignment ot 
 the creditor's judgment against the principal. Neul v. Nash, 23 Ohio St. ; 
 .Jarratt e. Martin, 70 N. C. 459 ; Perry t. Perry, 70 N. C, 697 ; Heralson v. 
 Mason, 53 Mo. 211 ; Bourgeat v. Adams, 11 La. An. 666; Halliburton v. 
 Carter, 55 Mo. 435.
 
 THE RIGHTS OF THE SURETY. 331 
 
 amount paid by him under the first mortgage, as surety 
 for A} 
 
 Again, a surety who has paid the principal's debt, 
 also has a right, upon the hanhrii/ptcy of the principal 
 debtor, to stand in the place of the creditor himself * 
 
 Thus, a surety may compel the creditor, on the bank- 
 ruptcy of the principal debtor, to prove against his 
 estate for the amount due, and the creditor will be a 
 trustee of the dividends for the surety who has paid the 
 whole debt.^ f If the dividends on the bankrupt's 
 estate are not sufficient to pay the creditor, and the 
 surety pays what remains due, he is entitled to stand 
 in the creditor's place as to future dividends.^ % Where 
 a limited guaranty has been given, and the limit has 
 been exceeded by the guarantee, who afterwards re- 
 ceives from the estate of the principal debtor a dividend, 
 the surety is entitled to the benefit of a part of that 
 dividend proportional on the amount guaranteed, not- 
 withstanding that the unpaid debt greatly exceeds the 
 amount of such guaranty."* And if, in such a case, the 
 creditor has recovered the whole sum guaranteed, in an 
 action against the guarantor, the right of the latter to 
 file a bill for an account and payment to him of such 
 dividends, is not barred by the fact that he might have 
 
 ' Drew V. Lockett, supra. TurDer, 3 Ves. 343 ; Paley v. Field, 12 
 
 " Ex parte. Rushforth, 10 Ves. 409, Ves. 435. 
 414 ; Beardmore v. Cruttenden, 1 Cooke, ' Ez parte Johnson, 3 D. M. &, G. 218. 
 
 B. L. 211, margin. And see Jackson v. * Tiiornton v. M'Kewan, 1 H. & M. 
 
 Magee, 3 Ad. & E. 57 ; Philips v. 525. See also Hobson v. Bass, L. R. 6 
 
 Smith, cited 10 Ves. 412; Ex parte Ch. App. 792. 
 
 * So, generally, it seems that the surety's right is to stand in j^lace of 
 the creditor in all cases. Upon payment of his principal's debt the prin- 
 cipal in no event becomes a trustee tor the surety. Jewttt v. Bacon, 6 
 Mass. T. R. 60. 
 
 t Gazzam on Bankruptcy, p. 337. 
 
 I Id. 343.
 
 332 THE LAW OF GUARANTIES. 
 
 pleaded a set-ofF to that extent in the action, but omitted 
 to do so.^ Such a claim is not a mere " money demand," 
 within the meaning of the principle which excludes suits 
 for damages merely.^ And where a creditor receives 
 dividends upon a debt, partly secured by the guaranty 
 of a tfiird person, the dividends must not be appropri- 
 ated to the excess of the debt, above the sum guaran- 
 teed, but must be applied ratably to the whole debt, 
 and the surety is relieved from liability by the amount 
 of dividend on the part which is secured.^ On the 
 other hand, if the creditor accepts from the surety a 
 composition of so much in the pound, he can only prove 
 against the estate of the principal debtor for the balance, 
 after deducting part payment/ 
 
 The right of the surety, under section 173 of the 
 bankruptcy act, 1849, is to prove, in the place of the 
 creditor, or to have the benefit of the creditor's proof, 
 and the sureties are bound by the election of the cred- 
 itor who has elected to prove against a particular estate.^ 
 
 A surety paying, after the bankruptcy of the prin- 
 cipal debtor, to a creditor who has proved, can only 
 stand in the place of the creditor upon the bankrupt's 
 estate, and, in case of a surplus, cannot claim interest 
 unless the creditor could have claimed it.^ Where, how- 
 ever, the surety had improperly proved for interest, sub- 
 sequent to the^a^ in bankruptcy, the court of chancery, 
 sitting in bankruptcy, refused to reduce the proof after 
 seven years had elapsed, and after the death of the surety."^ 
 
 ' Thornton v. M'Kewan, svpra. '" Ex parte Carne, L. R. 3 Ch. App. 
 
 * lb. 463. See also Ex parte Eevan, 10 Ves. 
 ' Raikes v. Tocltl, 8 Ad. <fe E. 846. 107. 
 
 But see The Liverpool Borough Bank * Ex parte Houston, 3 G. <fe J. 36. 
 
 V. Logan, 5 11. & N. 46+. See als» Ex parte Wilson, 1 R. 137. 
 
 * Oriental (J()mmerci;il Bank, Ex ' Ex parte Sanderson, 8 D. M. & G, 
 parte Maxoudoff, L. R. 6 Eq. 582. See 849. 
 
 also Midland Banking Co. v. Chambers, 
 L. R..4 Ch. App. 398.
 
 THE RIGHTS OF THE SURETY. 333 
 
 The bankruptcy act of 1869 does not, it seems, con- 
 tain any section equivalent to tlie 173d section of tlie 
 bankruptcy act, 1849, which enacted, that " sureties and 
 persons liable for the debts of a bankrupt may prove 
 after having paid such debts." ^ 
 
 Where there are several sureties, it sometimes be- 
 comes a question which of them is entitled to the ben- 
 efit of the creditor's proof. A bond was. entered into 
 by a principal and three sureties. The principal and 
 one of the sureties compounded with their creditors, 
 and the other two sureties became bankrupt. The 
 obligee proved the full amount of his debt against the 
 separate estates of the two bankrupts, and claimed 
 under the compositions, and by these means received 
 20s. in the pound ; but the estate of the compounding 
 surety paid more than its contributive share. It was 
 held, that that estate was entitled to the benefit of the 
 proof made by the creditor against the bankrupt 
 suretj^^ 
 
 The rights which the surety possesses of standing in 
 the creditor's place, as regards all the latter's securities 
 and equities, and on the bankruptcy of the principal, 
 may, however, be waived. The waiver may be made 
 by express agreement in the contract of suretyship.^ 
 But it need not of necessity be express. Thus, for in- 
 stance, in the case of Cooper v. Jenkins,* A. was tenant 
 for life of lots 1 and 2, to which B. was entitled in re- 
 mainder. B., and A. as his surety, mortgaged lot 2, — 
 B. alone covenanting to pay. By a contemporaneous 
 deed, B. conveyed his interest in the other lot on tinists 
 to indemnify A. as his surety. A. paid large sums for 
 
 ' See Williams' New Law and Prac- ' See ex parte Hope, 3 M. D. & D. 
 
 tice of Baakruptcy, p. 45. 720; Midland Bank v. Chambers, L. R. 
 
 * Ex parte Stokes and another, De 4 Ch. App. 398. 
 Gex, 618. M2 Beav. 337.
 
 334 THE LAW OF GUARANTIES. 
 
 interest on tlie mortgage. It was held that he was en- 
 titled to the benefit of the deed of indemnity only, but 
 not to stand in the place of the mortgagee on lot 2. 
 Sir John liomilly, M. K, said: "The plaintiff cannot 
 have the benefit of the mortgage on the principle of 
 the mercantile law ameadment act. He must proceed 
 under one or other of the two rights which he claims. 
 If he had bound himself to pay the mortgagee, and had 
 done so, he would then have been entitled to the bene- 
 fit of the mortgage. He has not done so ; he has bar- 
 gained, by a separate instrument, for an indenmity which 
 is perfectly distinct. This payment of interest was 
 perfectly voluntary, but that does not affect the deed 
 of indemnity, which is precise, and entitles him to what 
 he has paid, whether he was compelled to pay or not. 
 If a surety pay off the mortgage, he is entitled to the 
 benefit of all the securities. But here the plaintiff has 
 contracted with the mortgagor, for whom he is surety, 
 that he should receive a particular species of indemnity 
 if he pay off any part of the principal or interest. That 
 indemnity he is entitled to, and not to the benefit of 
 the mortgage paid off." 
 
 It is settled, as already pointed out,^ that where a 
 surety, who is liable for the whole or })art of another's 
 debt, has paid the whole of what he is liable for, he is 
 entitled to stand in the place of the creditor to that 
 extent, against the estate of the bankrupt debtor. The 
 surety may, however, in his contract, of suretyship, 
 ao-ree to waive this right for the benefit of the creditor.^ 
 In the event of such waiver, the circumstance of the 
 surety having been repaid by means of a counter 
 security, makes no difference in the rights of the surety. 
 
 ^ Ante, p. 330. Midland Banking Co. v. Chambers, L. R. 
 
 » Ex parte Hope, 3 M. D. <fe D. 720; 4 Ch. App. 398.
 
 THE RIGHTS OF THE SURETY. 335 
 
 This was decided in the recent case of the Midland 
 Banking Company v. Chambers.^ There, a bank per- 
 mitted a customer to overdraw his account, upon having 
 a guaranty from a surety to the extent of 300/., which 
 guaranty provided that all dividends, compositions and 
 payments, received on account of the customer, should 
 be applied as payments in gross, and that the guaranty 
 should apply to and secure any ultimate balance that 
 should remain due to the bank. Tlie customer gave 
 the surety a mortgage on part of his estate, by way of 
 indemnity. Afterwards the customer compounded with 
 his creditors by a deed which provided for the adminis- 
 tration of the assets, as in bankruptcy. His banking 
 account was overdrawn 410/. The mortgage was re- 
 alized, and the surety paid the bank the 300/. secured 
 hj it. 'It was held by the Lords Justices (affirming 
 the decree of Malins, V. C), that the bank was not re- 
 stricted to proof for the balance of 110/., but was en- 
 titled to receive* dividends on the whole 410/., not 
 receiving in the whole, including the 300/., more than 
 205. in the pound. 
 
 In a continuing limited gliaranty, there was a proviso, 
 that, if the creditors received a dividend from any es- 
 tate of the principal debtor, it should not be taken in 
 discharge of the guaranty, but that the creditors should 
 be entitled to recover on the guaranty to the full extent 
 of the limit notwithstanding. On the bankruptcy of 
 the principal debtor, the creditors proved, and before re- 
 ceiving any dividend, obtained, payment of the sureties 
 to the extent of the limit. It was held that the sure- 
 ties were 7iot entitled to stand in the place of the cred- 
 itors as to so much of their proof as was equal to 
 their payment.^ 
 
 ' L. R. 4 Ch. App. 398 ; see also ex "^ Ex parte Miles, De G. 623. 
 parte Hope, 3 M. 1). 4 D. 720.
 
 336 THE LAW OF GUARANTlEd. 
 
 It seems that a course of dealing between tlie par- 
 ties, previous to tlie bankruptcy of Che principal debtor, 
 will not give rise to the presumption that the surety 
 has abandoned his right of proof against the estate of 
 the principal debtor.^ * 
 
 III. Tlie rights of the surety against the cosureties. 
 
 The rights of a surety against his cosureties arise 
 when he has been compelled to pay under the guaranty, f 
 And the principal rights which he then becomes en- 
 titled to are, the right of contribution % from his co- 
 
 ' Ex parte Johnson, 3 De G. M. &. G. 218. 
 
 * The Supreme Court of the United States have taken very strong 
 ground upon the question of the discharge of a surety, holding that he is 
 discharged, not only by payment by or release of his principal, but by 
 any material change in the relations between the principal and the creditor. 
 
 It is not enough to show that the change was not injmious to the surety. 
 The surety has a right to judge for himself of the circumstances under 
 ■which he was willing to be liable, and to stand upon the exact terms of 
 his contract. Postmaster General v. Recder, 4 Wash. C. C. 678 ; U. S. v. 
 Hillegas, 3 Id. 70; Miller v. Stewart, 9 Wheat. G80 ; U. S. v. Tillotson, 1 
 Paine, C. C. 304. So also in Mayhew v. Boyd (5 Md. 102), the court said 
 that any dealings with the principal debtor by the creditor, which 
 amount to a departure from the contract binding a surety, and which hy 
 possibility might materially vary or enlarge such surety's liability without 
 his consent, will discharge him. 
 
 t The relation of cosuretyship is not always clear. Parol evidence will 
 not be admissible to prove that persons are cosureties although it may be 
 introduced as between themselves to show the nature of their transactions. 
 Davis V. Staats, 43 Ind. 103; Harshman v. Armstrong, Id. 126. The 
 obligation of cosureties, though several, is not collateral. It is for the 
 same thing. They have a right of indemnity against their principal, 
 and there is generally such mutuality between them as to render the 
 right and duty of contribution reciprocal. Monson v. Drakeley, 40 Conn. 
 553. As to a privity between cosureties, see Simpson ®. Bovard, 74 Penn. 
 St. 351, which held that a surety is liable even if the cosurety whom he ex- 
 pected would sign with him, did not. And see note at the end of this 
 chapter. 
 
 I The right of mutual contribution exists only among those who arc 
 sureties for the same thing. But equity will sometimes look at substance
 
 THE RIGHTS OF THE SURETY. 337 
 
 sureties!, and the right to the benefit of any securities 
 which they may possess. 
 
 The right of the creditor to contribution from his 
 cosureties arises thus : 
 
 It often happens that where there are more sureties 
 than one, for the same principal debtor, the creditor 
 makes one surety pay tlie ivliole debt, or more than his 
 just share or proportion of such debt. Whenever this 
 occurs, the surety who has been made to pay has a right 
 to recover from his cosureties their respective scares of 
 the sum which he has paid to the common creditor.^ 
 
 The Roman civil law never recoo;nized the rio-ht of 
 contribution among sureties (Jidejussores)^ as it exists 
 in England, and in most, if not all European States. 
 This is the more remarkable, because the lex Aijuleia 
 (b. c. 102) provided that, in, the case of sponsores and 
 Jidepromissores^^ if any one of them paid more than his 
 share, he should have an action ag;aiust the others for 
 that which he had paid in excess. However, the fide- 
 jussor (surety) who was first sued by the creditor, 
 though he had no remedy, in his own right, against his 
 
 » ' Cowell V. Edwards, 2 B. cfe P. 268 ; fered in some particulars from fidejus- 
 
 Dering v. Winchelsea, 2 B. <fe P. 270 ; sores (sureties). Thus the /o»-mey could 
 
 Kemp V. Finden, 12 M. & W. 421 ; Rey- not be attached to any but verbal obli- 
 
 nolds V. Wheeler, 10 C. B. N. S. 561 ; gations, whereas the latter could be at- 
 
 30 L. J. C. P. 350 ; Morgan v. Seymour, tached to any obligation, whether con- 
 
 1 Ch. Ca. 64 ; Fleetwood v. Charnock, tracted re, verbis, Uteris or consensu. 
 Nelson, C. R. 10; Davies «. Humphreys, Again, while the obligation of the /(/e- 
 6 M. <fe W. 153, 167 ; Batard v. Hawes, jussor bound the heir, that of the spon- 
 
 2 E. <fe B. 287; Brown v. Lee, 6 B. & sor and Jickprotnissor did not do so. -So, 
 C. 697; Ux parte GifFord, 6 Ves. 805; too, the "latter were freed from. liability 
 Dunn V. Slee, 1 Moore, 2; Turner v. after two years by the lex Furia, \vh\le 
 Davies, 2 Esp. 479; Craythorne t'. the former were bound in perpetuity. 
 Swinburne, 14 Ves. 164. See further, the Commentaries of Gaius. 
 
 ' Sponsores and Jidepromiasores dif- by Abdy and Walker, Book iii, 115, 126. 
 
 more than form, and if several persons enter into contracts of suretyship 
 "which are the same in their legal character and operation, though by dif- 
 ferent instruments, at different times, aud without the knowledge of each 
 other, they will be bound to mutual contribution. Monson v. Drakeley, 
 40 Conn. 553.
 
 ooS THE LAW OF GUAIIANTIES. 
 
 cosureties, bad wliat was terinod, tlie heneficium ceden- 
 da?mni actiomim^ which enabled him, before paying tlie 
 creditor, to compel the latter to assign over to him all 
 his rights of action against the principal debtor and 
 the cosureties.^ Moreover, a rescript of the Enlperor 
 Hadrian gave to tlie fidejussor (surety), against whom 
 the creditor demanded payment in full, the heneficium 
 divisionis^ that is to say, the right of forcing the surety 
 to divide his demand amongst all those fidejussores 
 (sureties) who were solvent at the time of the litis con- 
 lestatio} Again, as already pointed out,* the creditor 
 could hot have recourse to any of the sureties, until he 
 had first sued the principal debtor. It cannot, there- 
 fore, be considered that the Roman civil law was harsh 
 in its treatment of sureties. 
 
 In England, the right of contribution among sureties 
 seems to have been recognized by the courts of chancery, 
 at all events, from the time of Elizabeth.^ Lord Eldon 
 said,^ that it existed in equity from the very earliest 
 times. The courts of common law, however, did not 
 anciently enforce contribution among sureties, and, m 
 Offley and Johnson's Case,^ it was held, that, at common 
 law* one, surety has no right to contribution from a ccT- 
 surety. It seems, however, that the right of contribu- 
 tion has always existed by the custom of London,^ and 
 all the courts of common law have long since assumed 
 jurisdiction in cases of contribution ; but the courts of 
 equity are not, on that account, deprived of their original 
 
 ' Dig. xlvi, 1, 17. See also Mackel- * In Underhill v. Horwood, 10 Ves. 
 
 deii Systema Juris Romani, § 4^58. 208. 
 
 * Inst. 3, 20, par. 4. ' 3 Leon. 1 661. See also observations 
 
 * The ceremony by which litigants of Buller, J., in Toussaintw. Martinnant, 
 submitted tlie matter in dispute between 2 T. R. lUO, 105; and of Tindal, C. J., 
 them to the decision of the judge. in Edgar v. Knapp, G Scott, N. II. 707, 
 
 «^«<e. p. 217. 713. 
 
 * 1 tipcnce, Eq. Jar. of the Court of " Layer v. Nelson, 1 Vern. 4f>S. 
 Chancery.
 
 THE RIGHTS OF THE SURETY. 339 
 
 jurisdiction.^ And although now courts of law and 
 equity alike recognize the right of contribution amongst 
 sureties, yet the jurisdiction in equity is both more con- 
 venient and more extensive than that of the courts of 
 common law. It is more convenient^ because, where the 
 sureties are numerous, and are bound by separate in- 
 struments, by a single suit in equity, to which all the 
 sureties are made defendants, it is easy to achieve that 
 which, at common law, can only be attained by bringing 
 separate actions against the different sureties for their 
 respective contributions. It is more extensive^ because, 
 as we shall see more at length presently, at common 
 law, the proportion of the debt which each surety shall 
 conti'ibute is always regulated by the number of sure- 
 ties originally liable, including any that are insolvent. 
 But, in equity, the proportion that each surety shall 
 contribute is regulated by the number of solvent sure- 
 ties. 
 
 The doctrine of contribution, as has been remarked 
 before, originally was only a doctrine of the courts of 
 equity,"^ and as an equitable doctrine, it is not founded 
 in contract^ but is the result of general equity^ on the 
 ground of equality of burden and benefit.^ 
 
 ' Wright V. Hunter, 5 Ves. 794. ' Dering v. Winchelsea, 2 B. cfe P. 
 
 * The right of contribution is dependent, not upon contract, but upon 
 principles of justice and equity. Matthews v. Aiken, 1 Comst. 595 ; 
 Smith 0. Anderson, 18 Mo 520 ; Springer v. Spiinger, 43 Penn. St. 518. 
 
 But the right is also one recognized by law, and whatever would re- 
 lieve the surety in equity wiU also relieve him in law. Boyd «. 
 McDonougb, 39 IJow. (N. T.) Pr. 389; Horner v. Lyman, 2 Abb. (N. Y.) 
 App. Dec. 399. 
 
 A surety's right to contribution is assignable, and equity will substitute 
 his assignee to all the rights of an original surety or creditor. York ». 
 Landis,- 65 N. C. 535. 
 
 In Kentucky, this right of a surety to sue for contribution is limited to 
 five years from the payment. Eobinaon v. Jennings, 2 Bush (Ky.) 630.
 
 ZiO THE LAW OF GUARANTIES. 
 
 The conits of law, however, having borrowed the 
 equitable doctrine as to enforcing contribution amongst 
 sureties, profess to give relief on the ground of implied 
 assumpsit. The real principle, however, on which the 
 right depends is, that it is an equitable right. It has 
 long been settled, said Lord Eklon, in Craythorne v. 
 Swinburne,^ " That if there are cosureties by the same 
 instrument, and the creditor calls upon either of them 
 to pay the principal debt, or any jmH of it, that the 
 surety has a right in this court, either upon a principle 
 of equity or upon contract, to call upon his cosurety for 
 contribution; and, I think, that right is properly enough 
 stated, as depending rather upon a principle of equity 
 than upon contract, unless in this sense, that the princi- 
 ple of equity being in its operation established, a con- 
 tract may be inferred upon the implied knowledge of 
 that principle by all persons, and it must be upon such 
 a ground of implied assumpsit^ that in modern times 
 courts of law have assumed a jurisdiction upon this sub- 
 ject, — a jurisdictioii convenient enough in a case simple 
 and uncomplicated, but attended with great difficulty 
 where the sureties are numerous, especially since it has 
 been held, that separate actions may be brought against 
 the different sureties for their respective proportions." 
 
 The existence of the right of contribution, both at 
 law* and in equity, being thus clearly established, and 
 the principle on which it rests pointed out, it next re- 
 mains to consider when such rjght arises, f Now, we 
 
 270. Per Lord Redesdale, ia Stirling ' 14 Ves. 164. 
 
 V. Forrister, 3 Bligh, 575, 590 ; Cray- 
 thorne v. Swinburne, 14 Ves. 164. 
 
 * Boyd T. McDonough, 39 How. 389; page 309, Note *. 
 t Stallworth r. Preslar, 34 Ala. 505; Bond v. Bishop, 18 La. An. 549 ; 
 McCreary v. Parks, 18 Ohio St. 1 ; McCime v. Belt, 45 Mo. 174.
 
 THE RIGHTS OF THE SURETY. 34:1 
 
 have already seen/ * that, in the ease of tlie principal 
 and surety, the latter is entitled to sue the former for 
 money paid to his use, the moment he has paid any- 
 tliing in ease of the principal debtor. But the right of 
 one surety to sue the other for contribution does not 
 arise until the former has paid more than his propor- 
 tion or share of the common debt^ i. e. more tlian lie can 
 ever he called upon to pay ; for, till then, it is not clear 
 that he ever will be entitled to demand anytliing from 
 his cosureties, and, until he has a right to demand, he 
 has no equity to receive a contribution, and, conse- 
 quently, no right of suit, since the right of suit is 
 founded on tlie equity to receive it,^ f The practical 
 advantage of this rule is considerable, as it would tend 
 to multiplicity of suits and great inconvenience, if each 
 surety might sue all the others for a ratable proportion 
 of what he had paid, the instant he had paid any part 
 ofthedebt;^ J 
 
 A payment made by a surety on the default of the 
 principal debtor cannot, under any circumstances, be 
 regarded as a payment made voluntarily.^ Therefore, 
 to entitle the surety to sue the cosureties for contri- 
 bution, he need not show that he abstained from paying 
 
 ^ Ante,^.Z\\. thorne v. Swinburne, 14 Ves. 164, is 
 
 "" Ex parte Gifford, 2 B. <fe P. 269 ; explained. 
 Davies v. Humphreys, 6 M. & W. 153, " Per Parke, B., in Davies v. Hum 
 
 where a dubious expression in Cray- phreys, 6 M. <fe W. 153. 
 
 * Pitt V. Purssord. 8 M. & W. 538. 
 
 * Page 309, note *. 
 
 t Peabody x. Chapman, 40 N. H. 418; Pecquet ■y.Pecquet's Ex'r, 17 La. 
 Ann. 204; Lane v. Stacy, 5 Allen, 41 ; Simmons v. Vamum, 36 Ala. 93; 
 McCreary «. Parks, 18 Ohio St. 1 ; McCune v. Belt, 45 Mo. 174 ; Armitage 
 T. Pulver, 37 N. Y. 494 ; Paulin «. Kaighn, 3 Dutch. 503 ; Ramsey v. Lewis, 
 30 Barb. 403; Stallworth «. Preslar, 34 Ala. 505. 
 
 \ Hough V. The ^tna Life Ins. Co. 57 111. 308; 11 Amer. 18.
 
 342 THE LAW OF GUARANl'IES. 
 
 the creditor until compelleil or requested by the latter 
 to do so.^ 
 
 It seems that one of several cosureties may recover 
 contribution from the others, in an action at law, with- 
 out proving the insolvency of the principal and the 
 other sureties.^ "' And in equity, on a bill filed by a 
 surety against his cosurety and the principal debtor for 
 contribution from the cosurety in respect of money actu- 
 ally ]f)ciid by the plaintiff for the principal, it is also not 
 necessary to prove the insolvency of the principal debtor, 
 except where the principal is not made a party to the 
 suit.^ 
 
 The persons by and against whom the right to con- 
 tribution — assuming it to exist — may be enforced, must 
 next be considered, Now, as to this, it is well settled 
 that a surety is entitled to enforce contribution, whether 
 he knew or not at the time he became surety that he was 
 cosurety with others ; * for, though one person becomes 
 a surety without the knowledge of the others, the right 
 of contribution exists.^ 
 
 The riofht of contribution also exists whether the 
 sureties be bound jointly, or jointly and severally.^ f It 
 
 ' Pitt V. Pnrssord, 8 M. & W. 538. 160, 163; Whiting v. Burke, L. R. 10 
 
 » Cowell V. Edwards, 2 B. & P. 268. Eq. 539 ; L. R. 6 Ch. App. 342. 
 ^ Lawson v. Wrig-ht, 1 Cox Ch. Cas. * 14 Ves. 165. 
 
 275. ° Per Lurd Eldon, in Underliill v. 
 
 * Craythorne v. Swiaburne, 14 Ves. Ilorwood, 10 Ves. 208. 
 
 * Schmidt r. Coulter, 6 Minn. 492. But ^ye?- cordra it was held in Bal- 
 ling «. Donegliy (1 Davall, 220), that the petition, in an action by one 
 surety against his cosurety, which did not allege the insolvency of the 
 principal, was fatally defective. 
 
 t Where ten sureties bound themselves severally, and not jointly, in the 
 sum of $2,000 each on the bond of an officer, who afterwards defaulted, it 
 was held, that each surety was liable for the full amount of $2,000 so long 
 as the unsatisfied defalcation of the principal exceeded that amount, 
 although the defalcation did not amount to $20,000. Bank of Brighton 
 V. SmithflS Allen, 243.
 
 THE RIGHTS OF THE SURETY. 343 
 
 exists also among sureties for tlie same principal and the 
 same engagement, whether they are bound by the same 
 instrument or by different instruments.^ * However, 
 where sureties are bound by diff'erent instruments for 
 equal portions of a debt due from the same principal, 
 and the suretyship of each is a separate and distinct 
 transaction, there is no right of contribution between 
 them.^ Where, too, sureties are bound by separate 
 deeds and for unequal sums, no one can be called upon, 
 to contribute beyond the sum to which he is liable 
 under his own deed.^ f 
 
 So again, if it be arranged by contract % (which it 
 
 ' Mayliew ti. Crickett,2Swanst. 185; ^ Coope v. Twyman, 1 T. & Russ. 
 
 Crajthorne v. Swinburne, 14 Ves. 160, 426. 
 
 169, 170; Pendleburv v. Walker, 4 Y. 'See CraytboT'ne v. Swinburne, 14 
 
 <fe C. 424 ; Swain if. Wall, 1 Cb. Rep. 80. Ves. 160; Bering i). Winchelsea, 2 B. 
 
 & P. 270. 
 
 Where A. executed a bond as surety for $3,000, and B. as surety for 
 $18,000, each for the principal and for the same debt, — held, that they 
 were liable in the ratio of one ninth and of eight ninths. Armitage v. 
 Pulver, 37 N. Y. 474. Where one of the cosureties on a bail bond is the 
 wife of the principal, and the other surety knew that she was his wife 
 when he entered into the bond, the wife will not be liable, but the co- 
 surety will. Yale t\ V/heelock, 109 Mass. 502. 
 
 Where the estate of a principal is not sufficient to pay a judgment, the 
 sureties upon it are severally liable, and the successful party has a right to 
 enforce it against any one of them. Davis ■». Hooker, 33 Miss. 173. 
 
 * Armitage v. Pulver, tibi supra. See, however, note *, page 336. 
 
 tid. 
 
 X A. signed a contract as surety upon agreement that it was not to be 
 operative as to him unless B. should also sign as surety : Held, that where 
 the condition was not complied with, and the covenantee receiped the 
 guaranty without notice and in good faitli, that the surety so signing was 
 bound. Millett v. Parker, 2 Met. (Ky.) 608. Exactly the reverse of this 
 proposition was held in People v. Bostwick, 43 Bnrb. 9. And see 
 Simpson v. Bovard, 74 Penn. St. 351. 
 
 Cosureties have the right to terminate their claim for contribution. 
 Where three sureties agreed that their liability should be divided, and 
 that each should secure to the creditor the payment of his third, and take 
 a discharge to the others — and this was done by one of the sureties, who
 
 344: THE LAW OF GUARANTIES. 
 
 may be) that each surety sliall be answerable only for 
 a given portion of one sum of money, in sucli case there 
 is no rifrht of contribution amons; the cosureties.^ In 
 short, " where the same default of the principal renders 
 all the cosureties responsil^le, all are to contribute ; and 
 then the law superadds that Avhich is not only the 
 principle, but the equitable mode of applying the prin- 
 ciple, that they should all contribute equally, if each is 
 a surety to an equal amount, and if not equally, then 
 proportionably, to the amount for which each is a 
 surety." ^ 
 
 In case one of several cosureties dies, the question 
 arises, how' a surety, who has been compelled to pay the 
 whole debt, can recover the proportionate amount pay- 
 able by the deceased surety. Now", as the liability at 
 law of a cosurety to one who has paid the entire debt is 
 to contribute an aliquot part, according to the number 
 of persons originally liable, without reference to the 
 number liable at law at the time of payment, it follows 
 that the death of one of the cosureties w^ould not in- 
 crease the amount of contribution payable by the rest.^ 
 However, in such a case, it would seem that an action 
 would lie at law for contribution against the representa- 
 tive of the deceased surety.'* And it is quite clear that 
 in equity the representative of a deceased solvent surety 
 is chargeable, ^:>ar^^ ^«s.s?^, with the surviving sureties, in 
 contributing to the payment of the common debt.^ 
 
 ' Pincllebury v. Walker, 4 Y. &. C. ■* Prior v. Hembrow, 8 M. & AV. 873 ; 
 
 424. Batard v. Ilawes, supra. 
 
 '^ Per Alderson, B., in Peadlebury V. 'Primrose v. Bromley, 1 Atk. 89 ; 
 
 Walker, 4 Y. & C. 424, 441. Simpson v. Vaughan, 2 Atk. 31. 
 
 ' Batard v. Hawes, 2 E. «fe B. 287. 
 
 thereupon obtained from the others a covenant not to sue — it was held, 
 that one of the remaining sureties, who paid afterward more than his 
 share, could not call upon tlie retired cosure;:y for a contribution. Wag- 
 gener v. Dyer, 11 Leigh, 384; Bouchaud v. Dias, 3 Denio. 238.
 
 THE RIGHTS OF THE SURETY. 345 
 
 The right of a surety to call for contribution can, 
 however, only be enforced against persons who are 
 strictly and really cosureties with, him. It does not ex- 
 ist against a surety for a surety. * Such a person cannot 
 be called upon to contribute. This was decided in 
 Craythorne v. Swinburne.^ There A. and B. became 
 sureties for C. and D. E., without the privity of A. 
 and B., gave a distinct collateral security, limited to de- 
 
 ^ 14 Ve3. 160. See also per Lord Plunket, in Hartley v. O'Flaherty, L. <fe 
 
 G. (Ir. Ch.) 208, 217. 
 
 * But see Prescott v. Newell, 39 Vt. 83, where two sureties gave a 
 note in discharge of the obligations upon which they were bound, and one 
 of these cosureties became a surety u2)on such note. 
 
 Subrogation ordinarily will not be decreed in favor of a subsequent 
 lieu holder, nor a surety to the prejudice of intervening rights. Lloyd v. 
 Galbraith, 32 Penn. St. 103. 
 
 In order that one paying the debt of another may be subrogated to the 
 rights of the original creditor, the payment must be at the debtor's in- 
 stance, or the person paying it must be liable as surety or guarantor. 
 "Wilson V. Brown, 2 Beasley, 277; Constant v. Matteson, 22 111. 546; Rich- 
 mond D. Marston, 15 Ind. 134. There can be no subrogation to the lien of 
 another, unless the claim of that other is fully satisfied. Hoover v. Epler, 
 52 Penn. St. 522 ; Glass a. Bullen, 6 Bush, 346. Substitution takes place, 
 and right, for the benefit of him who, being himself a creditor, pays 
 another creditor whose claim is preferable to his. Spiller v. Creditors, 16 
 La. Ann. 292. 
 
 As to subrogation in case of a mortgage taken by sureties, see Grant v. 
 Ludlow, 8 Ohio (N. S.) 1 ; Tutor v. Pierce, 11 B. Mon. 399 ; Dearborn v. 
 Taylor, 18 N. H. .153. As to chattel mortgage, Stan wood v. Clampit, 23 
 Miss. 371. As to deed of trust, Chilton v. Chapman, 13 Miss. 470. And 
 generally, see Smith v. Harrison, 83 Ala. 706 ; McCormick v. Irwin, 35 Penn. 
 St. Ill ; Denny v. Lyon, 38 Penn. St. 98 ; Jones v. Fincher, 15 Ind. 308 ; 
 Norton v. Coons, 3 Denio, 130. 
 
 A. and B. signed the same obligation as sureties for C. A. signed at 
 the request of C, and B. signed at the request of A. Held, that they were 
 not cosureties as between themselves, but that A. stands in the relation of 
 principal to B., and is responsible to B. for whatever B. may be compelled 
 to pay, and has no right against him for contribution. Cutter v. Emery, 
 37 N. H. 567; see Smith v. Anderson, 18 Md. 520; Hoskins v. Parsons, 1 
 Met. (Ky.) 251 ; Prescott v. Newell, 39 Vt. 82. But j)er contra, see Bagott 
 V. Mullen, 32 Ind. 332 ; 2 Amer. 351.
 
 346 THE LAW OF GUARANTIES. 
 
 fault of payment hy the priiicipal and the otlier swety. 
 It was held, that E. was not a cosurety, and therefore 
 eonld not be made to contribute. In fact, E. was not 
 liable in the second instance at all, but only in the third 
 instance. Therefore E. could not be aifected by the 
 doctrine of contribution among sureties, which only 
 arises where sureties are equally liable to the creditor. * 
 
 A person who becomes surety for a third person 
 jointly with another surety, and at the latter's request, 
 cannot be compelled by the latter to contribute.^ f 
 
 The mode of enfoi'cing the right of contribution by 
 cosureties is either by suit in equity, or by action at law, 
 or (should a cosurety unfortunately have become bank- 
 rupt) by proceedings in bankruptcy against him. % 
 
 Should the surety seeking contribution proceed at 
 law, the action for money paid is usually the proper 
 form of action to be brouo-ht.i Where, however, 
 
 * Turner v. Davies, 2 Esp. 479. 
 
 * A stranger paying another's debt will not be subrogated to the cred- 
 itor's rights in the absence of an express agreement. Shinn v. Budd, 1 
 McCarter, 234 ; Downer v. Miller, 15 Wis. 612 ; Oliver «. Bragg, 15 La. An. 
 402; Richmond V. Marston, 15 Ind. 134. The conventional subrogation 
 must be made at the time of the payment. Sewall v. Howard, 15 La. An. 
 400 ; Wilson v. Brown, 2 Beasl. 227 ; Constant «. Matteson, 22 111. 546 ; 
 Richmond v. Marston, 15 Ind. 134. Subrogation will not be permitted, 
 except in a clear case, and where it will work no injustice to the rights of 
 others. It will not be decreed in favor of a subsequent lien holder, not a 
 surety, to the prejudice of intervening rights. Lloyd v. Galbraith, 32 
 Penn. St. 103 ; Gosserand r. Lacour, 8 La. An. 75. 
 
 See Monson v. Drakeley, 40 Conn. 553, examined in note at the end 
 of this chapter. 
 
 t Hartwell v. Smith, 15 Ohio St. 200. 
 
 X A discharge of one surety does not relieve him from contribution 
 to a cosurety, for money paid after the bankruptcy. Goss v. Gibson, 8 • 
 Humph. 197; Dale v. Warren, 32 Me. 94; Frentress v. Markle, 2 Iowa 
 (Greene), 553 ; Dunn v. Sparks, 1 Ind. (Carter) 397. 
 
 I Where collaterals are placed in the hands of a cosurety, and relin- .
 
 THE RIGHTS OF THE SURETY. 347 
 
 tliere are several sureties jointly liahle under tlie same 
 instrument to the creditor, the surety seeking to en- 
 force contribution, in order to avoid multiplicity of 
 suits (each surety being liable at laiv individually to 
 contribute ratabUj)^ should procure an assignment of 
 the instrument under which the sureties are bound, and 
 sue them upon it, in one action, in the name of the cred- 
 itor} 
 
 In the next place, whatever be the remedy, adopted, 
 it is important to consider loliat the surety seeking con- 
 tribution can recover from his cosureties/^' 
 
 ' 'See Batchelor v. Lawi-ence, 9 C. B. N. S. 543; and 19 & 20 Vict. c. 9Y, s. 5. 
 
 quished by him without fraud, though without the consent of his cosure- 
 ties, the liability of the cosureties to contribution will not be discharged. 
 Paulin V. Kaighn, 3 Dutch. 503. 
 
 A cosurety may bring into court his share of the debt, on the trial of 
 an action for contribution, and be relieved from further responsibility and 
 costs. Smith t\ Anderson, 18 Md. 520; Le Doux ». Durrive, 10 La. An. 7. 
 
 * A surety, compelled to pay the debt, may recover its amount from 
 another surety in whose hands the principal has placed property sufficient 
 to satisfy the debt, without having previously demanded it. Parham r. 
 Green, 64 N. C. 436; Creed ». Scruggs, 1 Heisk. (Tenn.) 590; Berthold 
 ®. Berthold, 46 Mo. 557 ; York ». Landis, 65 N. C. 535. But no right 
 accrues before he has paid the debt, or more than his proportion thereof. 
 Glass v. Pullen, 6 Bush (Ky.) 346 ; Camp v. Bostwick, 20 Ohio St. 337 ; 
 Freeman v. Cherry, 46 Ga. 14 ; Currier ». Baker, 51 N. H. 613 ; BarloAv r. 
 Disbert, 39 Ind. 16. And he cannot lose the right once accrued by the 
 fact that he paid in ignorance of the right, and without stipulating for 
 it. Dempsey v. Bush, 18 Ohio St. 376. But if the debt paid by him 
 consisted of a judgment which he was legally or equitably bound to pay, 
 he cannot levy contribution. McCrory ». Parks, 18 Ohio St. 1. Nor if he 
 have a security for the debt; in that case, he must hold the securities for 
 the benefit of all his cosureties. McCune v. Belt, 45 Mo. 174. He is their 
 trustee. Harrison v. Phillips, 46 Mo. 520. But when a judgment has 
 been rendered against sureties, a surety cannot have contribution against 
 a cosurety not included in such judgment. Hickerson v. Price, 7 Coldw. 
 (Tenn.) 151. 
 
 Payment of judgment, by one of the several joint debtors, so extin- 
 guishes the judgment, as to all, that the doctrine of subrogation does not
 
 348 Till-: LAW OF GUARANTIES. 
 
 A general rule, l>otli at law and inequity, and tliere- 
 fore one wliieh api)lies in whatever way the surety 
 seeks to obtain repayment, is, that a surety, who de- 
 fends an action brought for money deficient in the ac- 
 counts of his principal, cannot claim contribution from 
 Lis cosureties for the costs of the action, unless he was 
 authorized by them to defend.^ * 
 
 But where the plaintiff and defendant had executed, 
 as sureties, a warrant of attoi'ney, given as a collateral 
 security for a sum of money advanced on mortgage to 
 the princi])als, and, on default being made by the prin- 
 
 ' Knight V. Hughes, 1 Mood. & Malk. Malk. N ?. C. R. 487 ; and Gillett v. 
 X P. C. K. 247; a. c. 3 C. & P. 467; Rippon, 1 Mood. & Malk. N. P. C. K. 
 see also Roach v. Thompson, 1 Mood. & 406. 
 
 apply. Holmes v. Day, 108 Mass. 563. And the sureties in an undertak- 
 ing, given for payment of such judgment as may be awarded, &c., are not 
 discharged by the fact that, under a statute passed after the undertaking 
 was given, the court awarded damages, by way of costs, as part of the 
 judgment, which were not authorized by law at the time of giving the 
 undertaking. Horner v. Lyman, 3 Abb. (N. Y.) App. Dec. 399.- 
 
 A surety, who has paid all or part of the judgment debt of his principal 
 — the principal paying the balance — will be subrogated to all the benefits 
 and privileges of the judgment creditor; but otherwise, if any balance of 
 such judgment debt remains unpaid. He Hess' Estate, 69 Penn. St. 272; 
 Field V. Hamilton, 45 Vt. 35 ; Magee v. Leggett, 48 Miss. 139. 
 
 Where one of the sureties has made, or is about to make, a disposition 
 of his property, so as to throw the burden of the debt on the cosureties, 
 if the piincipal debtor is insolvent, a court of chancery will restrain or re- 
 lieve against such a disposition. Bowen v. Hoskins, 45 Mass. 183. 
 
 * But where parties were sureties on an official bond, upon which 
 judgment had Ijcen recovered and paid by plaintiff, in an action for contri- 
 bution, defendants alleged that they had never been served with process, 
 nor appeared in the action on the bond; that the plaintiff" had apjjeared 
 ibr them without authority, and had suffered judgment to be entered to 
 defraud them ; that he had, without their knowledge, entered into a 
 special contract with the relators in that action, to pay the judgment out 
 of funds then in his hands, belonging to the principal on the bond, and, 
 in consideration of such an agreement, received an extension of one year's 
 time on said judgment, &c. : held, that these facts did not constitute a 
 ^defense to the action. Bagott v. Mullen, 32 Ind. 332 ; 2 Amer. 351.
 
 THE RIGHTS OF THE SURETY. 349' 
 
 cipals, judgment was entered up on tlie warrant of at- 
 torney, and execution issued against the plaintiff, it 
 was held, that he was entitled to recover from the de- 
 fendant, as his cosurety, a moiety of the costs of such 
 execution.^ 
 
 Another general rule, which, like the preceding one, 
 applies in whatever form the surety seeks to obtain con- 
 tribution is this : In his claim for contribution from his 
 cosureties, the surety must allow for all that he may have 
 received, either from the principal debtor or by a 
 counter security.^ 
 
 In an action at common law, the surety who has paid 
 tihe debt can, as we have said, only recover from his co- 
 sureties an amount regulated by the number of sureties 
 originally liable ; so that, for example, if there are six 
 sureties, and one of them has become insolvent, only 
 one-fifth of the whole debt can be recovered from each 
 surety.^ * 
 
 A suit in ecpiity is, consequently, as we have said, in 
 many cases the more convenient and extensive remedy. 
 For, in equity, the amount of contribution is regulated 
 by the number of ^Ivent securities. For exampler, in 
 
 ' Kemp V. FindcD, 12 M. <fe W. 421. ell v. Edwards, 2 B. <fe P. 2e»; remarks 
 
 * Knight V. Hughes, 1 Moo. & Mai. of Lord Campbell, in Batard v. Hawes, 
 
 N. P. C. R. 247 : s. c. 3 C. (& P. 46*7. 2 E. <k B. 287, 291. 
 = Brown v. Lee, 6 B. & C. 699 ; Cow- 
 
 * A surety on a bail bond is entitled to contribution from his cosurety, 
 for any payment in excess of bis share, unless there is an agreement to the 
 contrary, express or implied ; and where the surety pays his own half of 
 the liability, and joins with his cosurety in a note for the other half, and 
 was sued and suffered judgment on the note, and paid the judgment, 
 such note is to be regarded as given for the sole debt of the cosurety, and 
 the money as paid to his use. In such case, the necessary costs are re- 
 coverable back, as well as the debt, as they were caused by the default of 
 the latter, and paid under legal compulsion. McKee v. Campbell, 37 
 Mich. 479.
 
 350 THE LAW OF GUARANTIES. 
 
 the case just supposed, in equity one-fifth could be re- 
 covered, because, though the original number of the 
 sureties was six, it has practically been reduced to five 
 by the insolvency of one. An early case upon this 
 point is that of Peter v. Rich ; ^ there the plaintiff, the 
 defendant and a third person were joint sureties for the 
 payment of purchase money to Lord Russell ; the plaint- 
 iff and the defendant had each paid their proportionate 
 share, but the third surety, being insolvent, the plaintiff 
 paid his share in addition. It was ordered by the court 
 of equity, that such payment ought to be. equally paid 
 and borne by the plaintiff and defendant. So also, in 
 Hitchman v. Stewart,^ it was decided, that when one of 
 several sureties has paid the principal debt, and some 
 of the cosureties are insolvent, he is entitled in equity, 
 as against the solvent sureties, to be repaid their numeri- 
 cal shares of what he has paid, with interest ^ from the 
 time of payment, although the instrument does not con- 
 tain any express indemnity so as to carry interest as on 
 a specialty. And it was there further held, that the in- 
 solvent sureties must pay their own costs of being 
 brought before the court to the •final hearing of the 
 cause. " It appears to jne," said Yice-Chancellor Kin- 
 dersley, in this case, "that it is just, that when several 
 persons concur in being sureties for a principal debtor, 
 whatever view a court of law may take, on which I 
 give no opinion, a court of equity will take this view, 
 
 ' 1 Ch. Ca. 34 ; but see Swain v. * It was formerly held in equity that 
 
 Wall, Com. Dig. Chancery, 4 D, 6, con- a Burety coold not claim interest on the 
 
 tradicting this, and for observations money paid by him, or on any fiart 
 
 upon last-named case, see Fell's Law of thereof. See Onge v. Truelock, 2 Mol- 
 
 Mercantile Guaranties, 2d ed. p. 212; loy, 44; Bell w. Free, 1 Swanst 90, but 
 
 see also, furl her, IIolo v. Hai risen, 1 there is no doubt now that it is recover- 
 
 Cas. in Cb. 246 ; and Mayor of Berwick- able. See Swain »;. Wail, 1 Ch. Rep. 
 
 upo'n-Tweed «;. Mui-ray, 7 De G. M. & 81; Lawson ». Wright, 1 Cox Ch. Cas. 
 
 (J 497 2*75, 277; Letre v. Duncombe, 15 Jur. 
 
 ' «2brew 271 86; 20 L. J. N. S. (Q. B.)221.
 
 THE RIGHTS OF THE SURETY. 351 
 
 that there is, among them all, au implied agreement to 
 indemnify each other ; each agrees that, as among thera, 
 he will bear his aliquot part of the debt, and on that 
 principle it is, I think, that Lawson v. Wright ^ must 
 have been decided ; finding that decision, and finding it 
 founded on what I think a sound equity, and no de- 
 cision as^ainst it, I cannot do better than to follow it." * 
 
 Should one of the cosureties have become bankrupt, 
 the surety requiring contribution will have to seek it 
 not at common law, or in equity, but in bankruptcy, f 
 And it therefore is of importance to see what his rights, 
 in such a case, will be. J 
 
 If the amount has been paid before bankruptcy, the 
 surety always could, and still may, move for it in the 
 usual way. 
 
 A surety, however, who was compelled to pay the 
 
 ' 1 CoxCh. Cas. 275. 
 
 * And a surety, before lie has paid the debt of his principal, or more 
 than hia aliquot portion thereof, is entitled to au injunction restraining a 
 cosurety from a fraudulent disposition of his property, the principal being 
 insolvent. Bowen v. Haskins, 45 Miss. 183; 7 Amer. 728. 
 
 Cosureties may by arrangement between them provide that one of them 
 shall assume the whole obligation for the purpose of proving the whole 
 claim at the principal's bankruptcy, even though lie has paid nothing upon 
 the joint obligation, and although the same is not yet due. Crafts v. 
 Mott, 4 Comst. (N. Y.) 604. 
 
 As to further rights of cosureties, see Rutledge v. State, 36 Tex. 459; 
 Dodge V. Dunham, 41 Ind. 180. 
 
 t And a release or discharge of the surety does not discharge him from 
 the liability to contribute to his cosurety, for money paid after the in- 
 solvency or bankruptcy. Boardman v. Paige, 11 N. H, 432, 435 ; Goss v. 
 Gibsoj, 8 Humph. 197 ; Dole v. Warren, 32 Me. 94; Frentress v. Markle, S 
 Greene, 553; Dunn v. Sparks, 1 Carter, 397. 
 
 But if a judgment is obtained against both principal and surety in 
 bankruptcy, the dischirge will be no bar to the surety's action to recover 
 the amount paid by him on the judgment. Leighton v. Atkins, 35 Me. 118. 
 
 I See note, J, page 346.
 
 352 THE LAW OF GUARANTIES. 
 
 debt of the priucipal debtor after the bankruptcy of a 
 cosurety, could not prove under the 52d section of G 
 Geo. 4, c. 16, which provides, that sureties and persons 
 lia])le for the debts of bankrupts may prove after hav- 
 ing paid such debts as herein mentioned. In Wallis v. 
 Swinburne,^ which is a decision upon this enactment, 
 Parke, B., in giving judgment, observed, that it had 
 been properly admitted by the counsel for the defend- 
 ant (the bankrupt cosurety), that the jjlaintiff was not 
 a surety for the debt of the bankrupt, but that it had 
 been contended that, though not a surety, he was a 
 person liaUe for the bankrupt's debt, by reason of the 
 instrument (a promissory note), on wdiich he, as well as 
 the bankrupt, was indebted to the creditors, having be- 
 come due before the bankruptcy. After reviewing the 
 various authorities, he goes on to say, that no case had 
 extended the construction of the statute so as to include 
 persons who are cosureties for a debt due, not from the 
 bankrupt, but from a third person. That it w\as not 
 correct to say that one cosurety was liable for the debt 
 of another at the time of the bankruptcy. "The bank- 
 rupt had not at that time engaged with his cosurety to 
 provide any part of the money, but the third party, the 
 principal, had engaged with both so to do, and it is then 
 quite a contingency whether the cosurety will be called 
 on by the creditor to pay more than his own share, and 
 until then he has no claim upon the bankrupt." ^ The 
 language of the iTYth section of the bankruptcy act, 
 1849,^ is very similar to that of the 52d section of 
 6 Geo. 4, c. 10. Accordingly, in Adkins v. Farrington,* 
 where a surety who had paid more than his share of the 
 
 > 1 Exch. 203. M2 (fe 13 Vict. c. 106. 
 
 ^ See also Clements v. Langley, 2 ^ 5 H. <fe N. 586. 
 
 Nev. <fe Maon., and the judgment of 
 Denman, C. J., at p. 277.
 
 THE RIGHTS OF THE SURETY. 353 
 
 common debt after the bankruptcy of liis cosurety, com- 
 menced an action against him (after he had obtained 
 his certificate), to recover contribution, it was admitted 
 in the aro-ument that Wallis v. Swinburne,^ thouiih a 
 decision on the 52d section of 6 Geo. 4, c. 16, was an 
 authority applicable to the 177th section of 12 cfe 13 
 Vict. c. 106.^ It was, however, held that, as the right of 
 contribution actually accrued before the expiration of 
 six months after the filing of the petition by the bank- 
 rupt cosurety, it was provable "as a liability to pay 
 money on a contingency" within the 178th section of 
 12 tfe 13 Vict. c. 106, and, consequently, that the bank- 
 ruptcy and certificate of the defendant were an answer 
 to the action. 
 
 In the case of Gary v. Dawson,^ the facts were as 
 follows : — In January, 1869, a company lent a sum in 
 consols to be deposited by the promoters of a bill then 
 before parliament ; and the two plaintiffs, the defendant, 
 and three others, entered into an undertaking with the 
 company, that if the bill was thrown out, the consols 
 should be returned, and if it passed, an equal amount of 
 stock should be transferred to the company, and that a 
 sum in the nature of interest on the value of the con- 
 sols at the time they were lent, from the end of six 
 months to the date of the transfer, should be paid to 
 the company. In April, 1866, the defendant was ad- 
 judged bankrupt, and in July he obtained his order of 
 discharge. In August the bill was passed, but the con- 
 sols were not transferred to the company till May, 1867, 
 and the plaintifts were compelled, in June, 1867, to pay, 
 under the undertaking, 500/. and the interest. An ac- 
 
 ' 1 Exch. 103. ^ L. R.4 Q. B. 668 ; aS L. J. K S. 
 
 * And also, it is submitted, to the (Q. B.) 800. 
 I'ZSd section of tlie same act. 
 
 23
 
 35i THE LAW OF GUARANTIES. 
 
 tion was then broiiglit to recover contriljution from the 
 defeiKlant, of one-sixth of the oOOZ. ; the defendant 
 pleaded his discharge in bankruptcy. It was lield, that 
 as tlie liability under the undertaking depended on an 
 uncertain event, viz., the date at which the consols 
 should be transferred, the amount of liability was not 
 €apable of l^eing ascertained, and the plaintiffs claim 
 was, therefore, not a debt provable under 12 & 13 Vict. 
 c. 106, s. 178, nor under 24 & 25 Vict. c. 134, s. 154, 
 and the defendant was, therefore, not discharged. 
 
 "Whether a proof can be made under the 31st sec- 
 tion of the bankruptcy act, 1869, in respect of a con- 
 tingent right of contribution as between cosureties is a 
 question which will have to be determined when it 
 arises. But it is certainly very difficult to conceive on 
 what principle the amount of such a proof could be cal- 
 culated. The liability would seem to be incapable of 
 being fairly estimated within the meaning of the above 
 ■section." ^ 
 
 The right of a surety to contribution from his co- 
 sureties may, like other rights, be lost or destroyed in 
 various ways. 
 
 Thus, after the lapse of six years, the right will be 
 barred by the statute of limitations. But, as we have 
 seen in a previous page, the right to contribution does 
 not arise until the surety has paid more than his share. 
 And as his right of action does not vest till then, it fol- 
 lows that the statute of limitations does not begin to 
 * run till the surety has paid more than his proper 
 amount.^ If, therefore, a surety, more than six years 
 before action brought, have paid a portion of the debt 
 due from a principal debtor, and the principal has paid 
 
 ' Robson's Law of Bankruptcy, 2d " Per Parke, B., in Davies v. Hurn- 
 
 ed. pp. 249, 250. plireys, 6 M. & W. 153.
 
 THE RIGHTS OF THE SURETY. 355 
 
 the residue within six years, tlie statute of limitations 
 will not run from the payment by the surety, but from 
 the payment of the residue by the principal ; for, until 
 the latter date, it does not appear that the surety has 
 paid more than his share.^ '''' 
 
 The surety's right of action for contribution after 
 he has paid, is not lost or affected by the circumstance 
 that the creditor may have given him (the surety) time 
 for payment.^ 
 
 It seems never to have been decided in England 
 whether a surety deprives himself of his right of ac- 
 tion against the other cosureties by releasing one of 
 several cosureties with him. However, from the Ameri- 
 can case of Fletcher v. Grover,*^ it woidd seem that a 
 discharge of one surety, does not entirely discharge, the 
 other cosureties, but only discharge them for such pro- 
 portion of the debt as, uj)on a payment of the whole 
 debt, they would be entitled to have recourse to him 
 for. 
 
 In addition to the right of contribution from his 
 cosureties which a surety who has paid the whole debt 
 possesses (and which we have now discussed fully), 
 such a surety has another important right ; for it is laid 
 down that " sureties are not only entitled to contribu- 
 tions from each other for moneys paid in discharge of 
 
 ' Per Parke, B., in Davies v. Hum- ° Dunn v. Slee, 1 Moore, 2. 
 
 phreys, ubi supra. 'UN. Hamp. R. 368. 
 
 * As to effect of statute of limitations on relations of principal and 
 surety, see Miles v. Linnell, 97 Mass. 298 ; and see, also. Camp v. Bostwick, 
 20 Ohio St. 337, -where the estate of a deceased surety of a principal 
 debtor was discharged from liability to the creditor, through his negli- 
 gence, by operation of the statute of limitations, and a cosurety afterward 
 paid the debt, held that the estate was liable to contribute to such a surety, 
 notwithstanding it was released from direct liability to the creditor. See 
 also RcdGeld & Bigelow's Leading Cases on Bills and Notes, 1st ed. p. 
 616, and ante note *, page 318.
 
 356 THE LAW OF GUARANTIES. 
 
 their joint liabilities for the princij^al, but they are also 
 entitled to the benefit of all securities which have been 
 taken by any one of them to indemnify himself against 
 such lial)ilities." ^ ^ 
 
 ' 1 story, Eq. Jurisprndence, par. 499. 
 
 * Without express stipulation, a surety who pays the debt of his prin- 
 cipal, can only require his money to be refunded him with interest, al- 
 though he may have suffered by the sacrifice of his property to pay the 
 debt. Vance t. Lancaster, 1 Hayw. (Tenn.) 240. 
 
 Persons subject to a common burden stand, in relation to eacli other, 
 upon a common ground of interest and of right, and whatever relief by 
 way of indemnity is furnished to either, by him for whom the burden is 
 assumed, inures equally to the relief of all the common associates. Miller 
 V. Sawyer, 30 Vt. 413 ; Leaiy v. Cheshire, 3 Jones Eq. 170 ; Ramsey v. Lewis^ 
 30 Barb. 403 ; Henry v. Compton, 2 Head, 549 ; Aldrich Adm'r ®. Ilapgood, 
 39 Vt. 614; Paulin v. Kaighn, 3 Dutch. 503 ; Davis v. Hoops, 83 Miss. 173. 
 
 CXne of two sureties is not entitled to the benefit of a mortgage given to 
 secure the other, especially when it was not given until an adjustment has 
 been effected by payment of one half of the demand by each. Hall v. 
 Cushman, 16 N. H. 462. Where security is taken for the indemnity of two 
 cosureties, one of them has no power to discharge it against the interests 
 of the other. Hayes v. Davis, 18 N. H. 600. One of two or more sureties 
 may demand a division of the liability upon his obligation, but when an 
 action is brought thereon he must plead his demand specially, or the right 
 to do so will be lost, and he will be bound for the whole debt. Pecquet 
 ■y, Pecquet's Exrs. 17 La. An. 204; Ramsey v. Lewis, 80 Barb. 403. If 
 one of several cosureties subsequently takes a security from the one pri- 
 marily bound, for his own indemnity, all those who are bound with such 
 surety are entitled to share in its avails. But one who is a cosurety and 
 an individual surety as well, and has in his hands indemnity for his indi- 
 vidual liabilities, is entitled to first satisfy his individual liabilities, and 
 distribute the remainder p'O rata among the oth«r sureties. Mc(June f. 
 Belt, 45 Mo. 174. 
 
 One cosurety agreeing to act for another in collecting payments for 
 him, is bound to use ordinary diligence, reasonable skill, and good faith. 
 Robinson v. Brooks,'^33 Ala. 222. 
 
 So where one deposits money with another who has signed notes with 
 him as a surety, before the notes mature, and it is agreed between them 
 that the latter shall apply the money so received in discharge of the notes, 
 the former cannot alterwards revoke such agreement ; the suretyship is a 
 suflScient consideration to support such a contract. Mandig v. Mandig, 
 26 Mich. 349. 
 
 But a surety cannot compensate his contingent liability as such against
 
 THE RIGHTS OF THE SURETY. 357 
 
 a deposit, unless the deposit has been made expressly to guarantee the de- 
 jjositary a.gainst such contingent liability. McDowell v. Crook, 10 La. 
 An. 31. 
 
 The wide subject of the law of guaranty and suretyship, as applied to 
 the case of bills and notes, has not been embraced within the scope of 
 Mr. De Colyar's treatise. But as it is often very difficult to determine 
 whether a party is a guarantor, or whether his rights are those of a mere 
 joint maker or surety or indorser of commercial paper, the editor has 
 thought that a few references to late American cases which discuss this 
 difhculty, might not be oiit of place. The real character of parties is 
 often only to be ascertained from the circumstances attending the i^articu- 
 lar transaction in which they are connected. (See ante, note *, page 1, 
 and note J, page 213.) The late case of Monson ». Drakeley (40 Conn. 
 553), arose w»here a note on demand was given for a loan made by the 
 payee, the note being signed by the borrower and two others, the latter be- 
 ing sureties, but that fact not appearing on the face of the note. Several 
 months afterward the payee, not being satisfied with the names, called on 
 the principal to furnish another name, and the latter procured the defend- 
 ant to sign his name under the others, giving him security therefor, no 
 qualification or explanation being added to his signature. The holder did 
 not agree to forbear to collect the note in consideration of the additional 
 security, but in fact, as it appeared, would, but for that, have proceeded 
 to enforce payment. One of the original sureties having been compelled 
 to pay the note, in an action by him for contribution, it was held : 
 
 1. That where several persons sign a note, withoutqualifying their sig- 
 natures in any way, they will all be taken to be makers of it. (And see 
 also to the same efiect, Stroop v. McKenzie, 38 Tex. 132, which held that 
 all the parties signing an obligation are principals, unless it appear other- 
 wise, or unless it be shown by the express understanding of all the parties 
 to the contract, that the relation of principal and surety existed between 
 the makers of the instrument, but that a subsequent signer could not be 
 held to be a joint maker, he having signed at a time when the note was 
 already a perfected instrument made for past and completed consideration.) 
 
 2. That a guarantor of the ability of the maker is in no sense in privity 
 with the sureties. . His undertaking is collateral and independent. He is 
 not chargeable by them with contribution, and cannot claim it ; and if he 
 pays the debt his remedy is against the principal alone for indemnity. 
 
 3. That a supplemental surety for all the prior parties, including the 
 principal as w^ell as sureties, has entered into a difiierent engagement. His 
 liability is to the holder in case of the default of all those parties. There 
 is no mutuality between him and the other sureties ; he is not liable to con- 
 tribution, and if he pay? the note his remedy is against the parties by 
 Avhose default he has suffered, for full indemnity.
 
 358 THE LAW OF GUARA^'TIES. 
 
 4. That the obligation of cosureties, though several, is not collateral- 
 It is for the same tliiug. They have a right of indemnity agains: their 
 principal, and there is generally such mutuality between them as to lender 
 the right and duty of coutiibution reciprocal. 
 
 5. That, although there was nothing on the face of the note to indicate 
 that the last two signers were sui'eties, yet the fact that the princip d and 
 both the original sureties were brothers, and the defendant their brother- 
 in-law, and that all lived in the same town, was of some importance as in- 
 dicating that he had knowledge of their relation to the paper and to each 
 other in respect to it. 
 
 6. That, the defendant ha\'ing signed at the request of the principal, 
 and for his sole benefit, and upon security furnished by him, and with no 
 knowledge on the part of the other sureties, it was held that he could not 
 properly be regarded as having signed as surety for all the prior signers. 
 
 7. That the law, under the circumstances, might presume that the de- 
 fendant, by writing liis name under the names of the original sureties, and 
 Avithout attaching any qualifications thereto, intended to do j^recisely 
 what they had previously done, and to become with them a surety for the 
 jirincipal. In Keith t. Goodwin (31 Vt. 261), a defendant signed a joint 
 and several promissory note with others, upon whith, though he appeared 
 as a principal, he was in fact a surety. Afterwards, at the request of one 
 of the principals, the plaintiff, not knowing that the defendant was a 
 surety, guaranteed the payment of the note, and eventually paid it. Held : 
 
 1. That in the absence of proof that he signed the guaranty as a general 
 surety, and with the intention of being liable to contribution with the 
 other sureties, he was liable as a guarantor, and that the i)laiutiff could 
 recover from him the whole amonnt. 
 
 2. That one who signs as surety may so stipulate at the time of sign- 
 ing, as not to be liable with other sureties who have signed before him ; 
 and when one guarantees the payment of a note on which sureties have 
 already sigiaed, it seems that, 2}>'if^^(^ fc'-i'^i l^is legal relations to those who 
 have signed before him, is such that he is a surety for them jointly, and 
 not jointly with them. He may also at the time of signing stipulate for 
 full indemnity of each and all former signers, or make that the condition 
 of his own undertaking; and in that case he will not be liable to con- 
 tribute with the other sureties to the payment of the note. The facts and 
 circumstances attending the signing or the guai'anty of the note, may 
 serve to indicate, as clearly as an express stipulation or condition, the terms 
 of the undertaking. 
 
 3. When a person signs a note as surety for the makers, and intrusts it 
 to them for the purpose of obtaining the money upon it, and they subse- 
 quently obtain further guarantors, upon the credit of all the signers, un- 
 der the belief that they are joint principals, and in order to procure the 
 money upon the note, such surety Avill be holden as principal to indemnify 
 the guarantors, if they are comi)elled to pay the note. If one sign a note.
 
 THE RIGHTS OF THE SURETY. 35^ 
 
 as surety, and iutrust it to his principal, he in so doing gives the principal 
 his implied autliority to obtain either additional security or guaranty. 
 
 4. The word guaranty in strictness may not import more than a promise 
 or undertaking ; but in commercial circles, and among business men gen- 
 erally, the term is understood in a more specified sense. A guarantor is 
 not a maker or indorser, but one ■who is understood to assume more the 
 obligation of an indorser than a maker. Both the indorser and guarantor 
 are uuderstood to undertake for the maker, and as an aid to his undertak- 
 ing ; and originally the guaranty was understood to be operative only 
 upon condition of the failure of the maker to perform the contract. And 
 that is the present import of all guaranties v,hich are conditional or de- 
 pendent upon some prior act, to be performed by some other party, as that 
 the note or contract is collectable, i. e., may be enforced by due process, 
 of law. And even absolute guaranties are understood differently, and 
 therefore entitled to a different construction, from an absolute promise to- 
 pay a note. (Per Kedfield, J.) See this case reported and annotated in 
 Redfield and Bigelow's Leading Cases in the Law of Bills cf Exchange, 
 Promisory Notes, &c., 1st ed. jDp. 597-GlG. See also Howard v. Clark, 3G 
 la. 1 14, and post, p. 383, note *.
 
 CHAPTER VI. 
 
 THE DISCHARGE OF THE SURETY. 
 
 The persons who may be parties to a couti'act of 
 suretyship ; tlie mode in which such a contract is formed ; 
 the operation of the statute of frauds upon the contract 
 of guaranty, and the liabilities and rights of the surety 
 under it, have all been discussed in the preceding chap- 
 ters. In this chapter it now only 'remains to consider, 
 how the contract of suretyshij^ may be put an end to, 
 and the surety discharged from all liability under it. 
 
 Before discussing the different grounds of discharge, 
 it may be as well to mention that the same principles 
 which have been held to discharge the surety in equity 
 will operate to discharge him also at law ; ^ and that, 
 where equity has concurrent jurisdiction, a court of 
 equity will not send a party suing there to a court of 
 law for the discharge to which he is equally entitled in 
 equity.^ ''^ 
 
 The ways in which a surety may be discharged from 
 his suretyship are exceedingly numerous, for a surety is 
 a "favored debtor." And, indeed, it is somewhat diffi- 
 cult to state systematically all the different modes in 
 which the surety's release may be effected, or to make 
 such an arrangement of them as will show at once the 
 
 ' Samuel v. Howarth. 3 Mer. 277, R. 4 Eq. 45; Mackintosh v. Wyatts, 3 
 
 278 ; 1 Story Eq. Jur. 10th ed. par. 325, Hare, 562 ; Hawkshaw v. Perkins, 2 Sw. 
 
 and note 3, par. 325; Strong v. Foster, 539; Eyre v. Everett, 2 Russ. 381. 
 17 C. B. 201, 219; Cooper v. Evans, L. ' Samuel v. Howarth, supra. 
 
 * People V. Jansen, 7 Johns. (N. Y.) 322 ; King v. Baldwiu, 2 Johns. 
 Ch. (N. Y.) 584 ; Scheroffel v. Shaw, 3 Conn. 452 ; Yiele v. Hoag, 24 Vt. 
 51 ; Vilar «. Jones, 1 Cow. (X. Y.) 282.
 
 THE DISCHARGE OF THE SURETY. • 361 
 
 various principles upon which they depend. It is be- 
 lieved, however, that all the modes in which a surety 
 may be discharged group themselves under one or other 
 of the following classes. I. The surety is discharged by 
 matters whicli invalidate the contract of suretyship ah 
 initio. 11. The surety may be discharged* by a rescission 
 of the contract of suretyship, Avhether such rescission be 
 express or implied. III. The surety may be discharged 
 by the fulfilment of the contract. IV. The surety may 
 be discharged by the neglect of the creditor."^ V. The 
 surety may be discharged by mere lapse of time. It is 
 proposed to discuss all these classes of discharges of the 
 surety in the order in which they have just been named. 
 For the purj^ose of making the arrangement clearer and 
 of more easy reference, the various grounds of discharge 
 arising under each class of cases are printed in italics. 
 
 I. The surety may be discharged by matters invalid- 
 ating the contract of suretyship ah initio. There are 
 certain things Avhich put an end to all contracts, what- 
 ever their nature, and make them void from their very 
 foundation ; and guaranties, like all other contracts, are 
 liable to be defeated by any of these means. The 
 principal things which thus avoid a contract as from its 
 very foundation are — (1) fraud ; (2) an alteration of 
 the written instrument in wdiich the contract is con- 
 tained ; and (3) failure of the consideration on which 
 the contract is founded. Let us consider these in order. 
 (1) Fraud of the creditor discharges the surety, f 
 Fraud vitiates all contracts; including, of course, 
 
 * And it AYOuld seem that tlie discharge of a surety is not open to ol)- 
 jection from the jirincipal, at le:.st in certain cases. Fewlass v. Abbott, 28 
 Mich. 270. 
 
 t Stone T. Conipton, o Bing. (N. C.) 142 ; Graves r. Tucker, 10 Sm. 
 4fc M. 9 ; Franklin Bank v. Cooper, 86 Me. 179 ; Evans v. Kueelaud, 9 Ala. 42 ;
 
 362 . THE LAW OF GUARANTIES. 
 
 the contract of guaranty. It is not proposed to define 
 fraud, as it is impossible to frame a definition of fraud 
 tliat would be applicable to all cases, because what is 
 fraud in one case is not deemed such in another. Courts 
 of equity have always avoided imprudently hampering 
 themselves by defining, or laying down as a general ex- 
 clusive proposition, what shall be held to constitute 
 fraud .^ "' This is no doubt because, were they to do so, 
 human ingenuity would soon find a means of evading 
 any proposition that might be laid down. 
 
 A fraud afl:ecting the contract of guaranty may be 
 either a fraud antecedent to the execution of the guar- 
 anty, or may be a fraud subsequent to the execution of 
 such contract, f 
 
 First, then, as to fraud antecedent to the execution 
 of the contract of guaranty. This, like other frauds, 
 may consist either in the suppression or concealment of 
 that which is true, or in misrepresentations, which is the 
 assertion of that which is false. % 
 
 Suppression or concealment, constituting a fraud 
 prior to the guaranty, is the most usual form of fraud 
 by which guaranties are affected. || 
 
 It seems once to have been thought, that the rule as 
 to the disclosure of all material facts prevailing in assur- 
 ances upon marine and life risks', applies also to contracts 
 
 ' Ilovencleu's Treatise on the Prac- tice to prevent Fraud, vol. I, pp. 13, 14, 
 
 and cases there cited. 
 
 Upton V. Vail, 6 Johns. (N. Y.) 181 ; Barney v. Dewey, 13 Id. 224; Young 
 V. Hall, 4 Geo. 95 ; Stafford v. Newsom, 9 Ired. L. CN. C.) 507 ; Young v. 
 Covell, 8 Johns. (N. Y.) 19 ; Hart v. Talraadge, 2 Day's R. 381 ; Bean r. 
 Bean, 12 Mass. R. 20. 
 
 * Kerr on Fraud and Mistake, Bump's Am. ed. p. 1. 
 
 t Mendelson v. Stout, 37 K Y. Sup. Ct. (5 Jones «fc Spencer), 508. 
 
 X Id ; Upton i\ Vail, G Johns. (N. Y.) 181 ; Wiser v. Wilcox, 1 Day's 
 Cases in Error, 22. 
 
 II Id.
 
 THE DISCHARGE OF THE SURETY. 303 
 
 of guaranty — the rule that, upon a policy to cover a 
 marine or life risk, the assured is bound at his peril to 
 disclose all material circumstances to the assurer, and 
 that their non-disclosure, though innocent and not fraud- 
 ulent, yitiates the contract. The impression that the 
 rule in question applied also to guaranties, was created 
 by a dictum of Lord Truro in Owen v. Homan.^ The 
 erroneous impression thus created was, however, cor- 
 rected in the case of The North British Insurance Co. v. 
 Lloyd.^ In that case the plaintiifs had lent to Sir T. 
 Brancker 10,000?., payable in a year, on the deposit of 
 some shares, with the further stipulation that if the 
 market value of the shares should fall 20/. per cent, 
 below 10,000/. he should furnish new shares or pay their 
 value, so as to leave a surplus of 20/. per cent.^ The 
 shares having fallen in value, below that amount, w^hen 
 the time for the repayment of the loan arrived, the time 
 was extended to a further period on the deposit of addi- 
 tional shares and the acceptance of Mr. Brancker, the 
 brother of Sir T. Brancker. Before the loan became 
 due, in pursuance of the terms of this second arrange- 
 ment, Mr. Brancker apj^lied to be released from his ac- 
 ceptance upon procuring the guaranty of the defendant 
 and three others for 500/. each. Sir T. Brancker then 
 informed the defendant of the loan and of its terms, and 
 told him that unless he could j^rocure security his shares 
 would be sold at a great loss; but the arrangement as 
 to the withdrawal of Mr. Brancker's acceptance was not 
 communicated to the defendant, and he was wholly 
 ignorant of it. The defendant executed a guaranty 
 which did not refer to Mr. Brancker's acceptance, but 
 
 ' 3 M'N. A G. 378. ^ The reason for tliis distinction is 
 
 '^ 10 Exch. 523. See also Wytlies v. well stated by Blackburn, J., in Lee i'. 
 Labouchere, 3 D. cfe J. 593. Jones, lY C. B. N. S. 482.
 
 364 THE LAW OF GUARANTIES. 
 
 recited the consideration to he tbe original loan, and tlie 
 plaintiffs not requiring any further security in the event 
 of the depreciation of the shares as j^trovided for by the 
 original agreement. In an action on the guaranty, it was 
 held, that the non-communication of the private ar.range- 
 nient between the plaintiffs and Sir T. Brancker and 
 Mr. Brancker did not amount to constructive fraud, and 
 afforded no defense to tlie action. Pollock, C. B., in liis 
 judgment says, "The non-disclosure of the circumstance 
 of the change of security, even if it had been material, 
 would not have vitiated the guaranty, unless it had 
 been fraudulently kept back ; and there was no ground 
 to impute fraud, in fact, to the j^laintiffs or their agents. 
 They might well have supposed that the desire of Mr. 
 Brancker to get rid of his own guaranty did not in- 
 dicate any bad opinion of his brother's character or 
 solvency, but arose from a wish on other grounds to 
 contract his liabilities." 
 
 In this case, therefore, the court was of opinion, that 
 there was no fraud, that the circumstance not disclosed 
 was not a material circumstance^ and that, even if it had 
 been, its concealment, wv^Q^i^ fraudulent, would not have 
 the effect of vitiating the guaranty. Now it is some- 
 what difficult to reconcile this decision Avith the pre- 
 vious case of Railton v. Mathews.^ There a party 
 became surety in a bond for the fidelity of a commission 
 agent to his employers. After some time tlie employ- 
 ers discovered irrefrularities in the a^'ent's accounts, and 
 put the bond in suit. The surety then instituted a suit 
 to avoid the bond, on the ground of concealment by the 
 employers of mjiterial circumstances affecting the agent's 
 credit ^;n6>;' to the date of the bond, and which, if com- 
 
 ' 10 Cl. and F. 935, See observa- Blackburn, J., in Philips v. Foxall, L. 
 lions on this case by Quain, J., and il. 7 Q. B. 6(36.
 
 THE DISCHARGE OF THE SURETY. 365 
 
 mimicated to tlie surety, would have prevented him 
 from undertakiiic; the obli2;atiou. On the trial of an 
 issue, directed by the court, to try whether the surety 
 was induced to sign the bond by undue concealment or 
 deception on the part of the employers, the presiding 
 judge directed the jury that the concealment, to be un- 
 due, must be wilful and intentional, with a view to the 
 advantages the employers were thereby to gain. It was 
 held by the House of Lords (reversing the judgment of 
 the Court of Session) that the direction was wrong in 
 point of law, that the mere non-communication of cir- 
 cumstances affecting the situation of the parties material 
 for the surety to be acquainted with, and within the 
 knowledge of a person obtaining a surety bond, is undue 
 concealment, tlihugli not loilfid or intentional^ or ivith a 
 view to any advantage to himself. 
 
 The only way in which this case can be reconciled 
 with the North British Insurance Co. v. Lloyd, is on 
 the assumption that the objection of the House of 
 Lords must be confined to that part of the judge's 
 charge where he ruled, that a concealment does not 
 vitiate a guaranty unless the party guilty of it had his 
 own particular advantage in view. Certainly, Lord 
 Cottenham seems to assert, in this case, that uninten- 
 tional concealment would be sufficient ■ to vitiate a 
 guaranty. Lord Campbell, however, is careful to sepa- 
 rate the alleged misdirection of the judge into two parts. 
 He says, "Now, according to my notion of the issue, 
 that is an entire misconception of it ; according to this 
 direction, althougli the parties acquiring the bond had 
 been aware of the most material facts which it was 
 their duty to disclose, and the withholding of which 
 would avoid the bond, if they did not wilfully and 
 intentionally withhold them, that is to say, if they
 
 366 THE LAW OF GUARANTIES. 
 
 liad forgotten tliem, or if they thought by mistake, 
 that, in point of law or morality, they were not bound 
 to disclose them, then, according to the holding of 
 the learned judge, it would not be a concealment. 
 But the learned judge does not stop there ^ he goes on, 
 with a view to the advantage they were thereby to 
 receive; introducing those words conjunctively, and, 
 in effect, saying that it was not an undue conceal- 
 ment, unless they had their own particular advantage 
 in view. That appears to me a misconception." It 
 would therefore seern^ that Lord Campbell miglit have 
 agreed with the learned judge, if lie had only laid 
 down that concealment, if not wilful and intentional, 
 will not vitiate a guaranty. 
 
 The decision in the case of the North British In- 
 surance Co. v. Lloyd,^ is certainly quite in harmony 
 witli the doctrine of courts of equity, who hold that, 
 in order to entitle a surety to relief in equity^ on the 
 ground of misrepresentation or concealment, at the time 
 of the contract, he must make out a case amounting 
 to frauds 
 
 When we speak of a fraudulent as distinguished 
 from an innocent concealment, we speak of one which 
 is vnlful and intentional:-^ However, it is necessary 
 to observe, that though every fraudulent concealment 
 is wilful and intentional, the converse of that propo- 
 sition is not correct, and that every ivilful and inten- 
 
 ^ 10 Exch. 523. ' Pledge v. Buss, Johns. 663. 
 
 * If a party actually believes what lie asserts to be true, tliere is no 
 fraud. Weed v. Case, 55 Barb. (N. Y.) 534 ; Marsli v. Falker, 40 N. Y. 
 562; but see Bankhead v. Allaway, 6 Cold. (Tenn.) 56, which holds, that 
 innocent misrepresentation of a material fact by mistake, upon which 
 another is induced to act, is a conclusive ground of relief in equity, since 
 it operates as a surprise and imposition on the other party.
 
 THE DISCHARGE OF THE SURETY. 367 
 
 tional concealment is not necessarily by the law of 
 England fraudulent. " But we have already shown 
 that no concealment will vitiate a guaranty unless it 
 be fraudulent. Therefore, it is not every wilful and 
 intentional concealment that will have this eftect, for 
 every wilful and intentional concealment is not neces- 
 sarily fraudulent. Now it appears that there are cer- 
 tain things which it is the duty of the creditor spontane- 
 ously to disclose to the surety, and that there are certain 
 other things which the creditor need not disclose, unless 
 and until requested to do so by the surety. If, there- 
 fore, the creditor, wilfully and intentionally, omit to 
 disclose those things which he is bound spontaneously 
 to disclose, he is of course guilty of 2(. fraudulent con- 
 cealment, which vitiates the guaranty and relieves the 
 surety from lialjility. But an intentional and v>^ilful 
 concealment (as distinguished from a misrepresentation^ 
 of those things whicli he need not disclose unless the 
 surety requests him to do so, will not amount to a 
 fraudulent concealment, and will not, therefore, vitiate 
 the guaranty. 
 
 Having said thus much, we will endeavor to explain 
 what things the surety is bound spontaneously to dis- 
 close, and what are the things which the surety must 
 ascertain for himself ivom. the creditor. 
 
 In Hamilton v. Watson,^ Lord Campbell lays down 
 " that this might be considered as the criterion w^hether 
 the disclosure ought to be made voluntarily, namely, 
 
 ' 12 CI. & Fin. 109, 119. 
 
 * It must appear, for examijle, that the plaintiff was not culpably neg- 
 ligent. Newsom v. Jackson, 26 Geo. 241. The intent to deceive must 
 fully appear. Stafford v. Newsom, 9 Ired. L. (N. C.) 507.
 
 368 THE LAW OF GUARANTIES. 
 
 whether there is anything that might not naturally be 
 expected to take place between the parties Avho are con- 
 cerned in the transaction — that ii^, whether there be a 
 contract between the debtor and the creditor to the 
 eftect that his position shall be different from that which 
 the surety might naturally ex23ect — and, if so, the surety 
 is to see whether that is disclosed to him. But if there 
 be nothing which might not natui'ally take place be- 
 tween these parties, then, if the surety would guard 
 against particular perils, he must put the question, and 
 he must gain the information which he requires." 
 
 In Wythes v. Labouchere,^ Lord Chancellor Chelms- 
 ford said, "the concealment, too, must be of some 
 material part of the transaction itself between the cred- 
 itor and his debtor, to which the suretyship relates. 
 The creditor is under no obligation to inform the in- 
 tended surety of matters affecting the credit of the 
 debtor, or of any circumstances unconnected with the 
 transaction in which he is about to engage, which will 
 render his position more hazardous." 
 
 We will now pass on to j)artic\dar examples : 
 It seems that a guaranty will not be invalidated by 
 the circumstance that the surety has not been informed, 
 previous to its execution, of its tenor or effect, if he has 
 had full opportunity, not only of duly considering it 
 himself, uninfluenced by the representations or presence 
 of the person to whom the guaranty is given, but also 
 of procuring the advice and assistance of his own solic- 
 itor. » A court of equity will not interfere in such a 
 case, because the surety should have asked for informa- 
 tion if he required it.''' It would be otherwise, indeed, 
 
 ' 3 D. <fe J. 593, 609. ° Tor Vicc-Chancellor Kinderslej', in 
 
 Small V. Currie, 2 Drew. 102, 114.
 
 THE DISCHARGE OF TPIE SURETY. 3G9 
 
 if the creditor had been guilty of misrepresentation by- 
 framing the instrument in a way calculated to mislead 
 the surety. A court of equity would not allow advan- 
 tage to be taken of a guaranty executed under such cir- 
 cumstances.^* 
 
 Where an %reeraent between the vendors and the 
 
 ' Per Vice-Chancellor Kindersley, in Small v. Currie, 2 Drew. 102, 114. See 
 
 also Squire v. Whittoii, 1 H. L. 333. 
 
 * To make one liable for false representations as to another's solvency, 
 it must appear that the transaction was limited as to time or to credit, and 
 tJiat there was no contributory or culpable negligence on the part of the 
 plaintiflf. Newsom v. Jackson, 26 Geo. 241; Hopkins ». Cooper, 28 Geo. 
 392; Glover v. Townshend, 30 Geo. 90; Shaw v. Stine, 8 Bosw. 157. 
 
 The intention to deceive is the gist of an action for fraudulent repre- 
 sentation or concealment. Such intent is not a necessary conclusion of 
 law, and will not be presumed. It is competent for the one making the 
 representations to show that he did not intend a fraud. Graham v. Hol- 
 linger, 46 Penn. St. 55 ; Seymour v. Wilson, 14 N. Y. 567 ; Pope v. Hart, 
 35 Barb. 630 ; 23 How. 215. But the mere fact that at the time of making 
 the representation he believed in its truth, or that he did not know whether 
 it was true or false, will not discharge the guarantor from liability. Park- 
 ham V. Randolph, 4 How. (Miss.) 435 ; Bennett v. Judson, 21 N. Y. 238 ; 
 Craig V. Ward, 36 Barb. 377 ; Stone v. Denny, 4 Met. (Mass.) 151 ; Buford v. 
 Caldwell, 8 Mo. 477 ; Thomas v. McCann, 4 B. Mon. 601. Or if the person 
 making the representations wilfully suppresses any facts known to himself, 
 in order to give a person a credit to which he may not be entitled, he will 
 be responsible for all damages sustained by relying upon the representa- 
 tions. Rheem v. Naugatuck, &c. Co. 33 Penn. St. 358 ; Pierson v. Howe, 
 1 Allen, (Mass.) 207. 
 
 A person cannot be considered as guilty of a fraud by omitting to make 
 known facts of an important character affecting the risk of the surety when 
 it does not appear that he had an opportunity to do so. But if he does 
 know such facts, and has reason to believe that they are not known to the 
 proposed surety, if information be sought from him, or if he have a suit- 
 able opportunity, and the facts are of such a character that they are not 
 found in the reasonable and usual course of that kind of business, and are 
 such as to materially increase the risk, it is his duty to make them known. 
 Kerr on Fraud and Mistake, Am. ed. p. 123 (note). But a positive asser- 
 tion as to another's solvency made by one who ought to have known, and 
 who was supposed to know, with the intention of inducing a credit, ren- 
 ders the maker liable. Hubbard v. Briggs, 31 N. Y. 568 ; Sharp v. New 
 24
 
 370 THE LAW OF GUARAJsTlES. 
 
 vendee of goods, that the latter should pay lOs. per ton 
 beyond the market price, which sum was to be applied 
 in liquidation of an old debt due to one of the vendors, 
 was not communicated to the person guaranteeing pay- 
 ment of the goods, it was held, that on that account 
 the guaranty was void,^ for a part}' givfng a guaranty 
 ought to be informed of every private bargain made be- 
 tween the vendor and the vendee of goods, which may 
 
 ' Pidcock V. Bishop, 3 B. <fe C. C05, See remarks on this case in ex parte 
 
 Sharp, 3 M. D. «fe D, 504. 
 
 York, 40 Barb. 256; Corbett v. Gilbert, 2i Geo. 454; Beau v. Wells, 28 
 Barb. 466. 
 
 Literal speaking of the truth, if spoken with the intention to deceive, 
 may be as fraudulent as a falsehood. Mulligan v. Bailey, 28 Geo. 507. 
 
 Every contracting party has an absolute right to rely on the express 
 statement of an existing fact, the truth of which is known to the opposite 
 jjarty, and unknown to him, as the basis of a mutual engagement. Mead 
 V. Bunn, 32 N. Y. 275. As to whether if the party making the representa- 
 tions relied upon actually believes in their truth, and they afterwards turn 
 out to be false, he is still liable, there is some couflict of authority. See 
 Weed ®. Case, 54 Barb. 531; Marsh v. Falker, 40 N. Y. 562; Bankhead 
 V. AUoway, 6 Cold. 56. 
 
 And, therefore, to receive a surety known to be acting upon the belief 
 that there are no unusual circumstances by which his risk will be materi- 
 ally increased, well knowing that there are such circumstances, and having 
 reasonable opportunity to make them known, is a legal fraud by which 
 the surety will be relieved from the contract. Id. ; Franklin Bank ». 
 Cooper, 36 Me. 179 ; 37 Me. 543 ; see generally, as to fraud, Corbett v. 
 Gilbert, 24 Geo. 454 ; Boan «. Wells, 28 Barb. 466 ; Sharp v. New York, 40 
 Barb. 256; Hubbard v. Briggs, 31 N. Y. 518; Purdy v. Peters, 35 Barb. 
 239 ; Sterns v. Marks, Id. 565. 
 
 But where a letter contained both false representations and a guaranty, 
 and the plaintiff sold goods on the faith of the guaranty, it was held, that 
 he could not afterwards elect to sue for the false representations. Mc- 
 Naughton v. Conkling, 9 Wis. 316. 
 
 Unless fraud is clearly shown, the liability of a guarantor is not affected 
 by the invalidity of the original obligation. Purdy v. Peters, 35 Barb. 
 239 ; Sterns v. Marks, Id. 565. 
 
 But it affords a surety no defense that the names of two of the princi- 
 pals upon a note are forged, if the fact was unknown to the surety and 
 holder when delivered. Chase v. Hathorn, 61 Me. 505.
 
 THE DISCHARGE OF THE SURETY. 371 
 
 have tlie effect of varying the degree of his responsibility.^ 
 It would appear, moreover, that it may, under certain 
 circumstances, be necessary to communicate to the 
 surety the existence and nature of an agreement entered 
 into by the person receiving the guaranty, and some 
 third person other than the principal debtor. This 
 would appear to be so from the case of Stiff v. The 
 Local Board of Eastbourne.^ .The facts of this case are 
 as follows : By a memorandum of agreement between 
 one James Hay ward of the one part, and the defend- 
 ants of the other part, Hayward contracted to execute 
 certain sewage works at Eastbourne, conditionally, 
 among other things, on his being from time to time 
 paid for the work done by him under the contract, 
 upon the certificate of a surveyor, who was defined as 
 being the surveyor of the defendants. By a bond of 
 even date with the above agreement, Hayward, as prin- 
 cipal, and the plaintiff and another, as sureties, became 
 jointly and severally bound to the defendants in the 
 penal sum of 5,000^., for the due performance of the 
 contract on or before a certain day. Subsequently 
 Hayward became insolvent, was unable to complete the 
 contract, and the defendants thereupon commenced an 
 action against the plaintiff, in order to enforce his pen- 
 alty under the bond. This action the plaintiff sought 
 to stay by injunction. It appeared that, previously to 
 the contract with Hayward, the defendants had entered 
 into an agreement with the Duke of Devonshire, who, 
 possessing a good deal of property in the neighborhood, 
 was interested in the sewage works, that the works 
 should be executed " under the joint superintendence 
 
 ' Per Abbott, C. J., in Pidcock v. M9 L. T. N, S. Ch. 408. 
 
 Bishop, ubi supra. See ?l30 Stone v. 
 Comptou, 5 BiDg. N. C. 14 2.
 
 372 THE LAW OF GUARANTIES. 
 
 nnd control of the engineer and surveyor of the duke 
 and of the local board, or their surveyor or clerk, or 
 clerk of the works." At the time of the execution of 
 the bond, the plaintiff was kept in ignorance of this 
 agreement. It was held, that the plaintiff was relieved 
 from liability, as surety, under his bond, because, at 
 the time of its execution by him, a material circum- 
 stance was concealed from him, and that an injunction 
 restraining proceedings at law against the surety, upon 
 the bond, must, therefore, be granted. Vice-Chancellor 
 Stuart delivered the following judgment in this case : 
 "In contracts of this description, it is of the utmost 
 importance to know who is to be the surveyor, for on 
 him depends the payment. In the contract between 
 the defendants and Hayward, it is distinctly stated, as 
 one of the conditions, that the surveyor is to be the 
 surveyor of the Eastbourne local board; yet it now 
 turns out, that the Duke of Devonshire's surveyor is 
 to be associated with him. The fact of this circum- 
 stance having been concealed from the plaintiff, at the 
 time of the execution of the bond, is, in my opinion, 
 sufficient to exonerate him from all liability. The in- 
 junction must, therefore, begranted." 
 
 In Smith v. The Bank of Scotland,^ a guaranty was 
 given for the good behavior of a bank clerk. The bank, 
 concealed from the surety — or rather neglected to dis- 
 close to him — the circumstance, that the principal had, 
 previously to the giving of the guaranty^ misconducted 
 himself in his office. It was held, that this conceal- 
 ment or omission to disclose ouo-ht to have been ad- 
 mitted to proof by the court below, on the ground, 
 apparently, that it was so little to be expected that a 
 
 ^ 1 Dow, 272. See observations on this case by Quain, J., and Blackburn, J., 
 
 in Phillips v. Foxall, L. R. 7 Q. B. 66G.
 
 THE DISCHARGE OF THE SURETY. 373 
 
 bank would continue in their service sucli a clerk, that 
 the application for a security, under these circumstances 
 amounted to holding him forth to the sureties as a per- 
 son of trust, and that this amounted to fraud/ 
 
 The recent Irish case of Lawder v. Simpson,^ is very 
 similar to the case last cited. In Lawder v. Simpson, an 
 action was brought by a county treasurer against a 
 surety to a bond of a defaulting county cess collector. 
 The surety pleaded equitably that the plaintiff knew 
 that the cess collector, when previously engaged in that 
 office, had misconducted himself, and yet that the plaint- 
 iff had not informed the defendant (surety) of this fact. 
 It was held, that this defense was inadmissible, as there 
 was no privity between the surety and the plaintiff in 
 his official capacity. 
 
 In Lee v. Jones,^ it was held, by the Court of Ex- 
 chequer Chamber, that the non-communication by the 
 plaintiff's to defendant of the fact that the principal 
 debtor was indebted to the plaintiffs, at the time the 
 defendant executed the contract of guaranty, was evi- 
 dence in support of the defendant's plea of fraud. This 
 was a case of misrepresentation, rather than one of mere 
 concealment. 
 
 In the case of The Guardians of the Stokesley Union 
 V. Strother,^ the bond was conditioned for the faithful 
 discharge of the duties of a relieving officer. At the 
 time of the execution of the bond there was a balance 
 of 206/. due from the relieving officer, in respect of 
 money which had been received by him as relieving 
 officer. That fact was not communicated to the surety. 
 
 • See also Leith Banking Co. v. Bell, MY C. B. N. S. 482 ; 9. c. 14 C. B. 
 
 8 Shaw <fe Dunl. 721 ; 5 Wils. & Shaw, N. S. 386 ; 11 Jur. N. S. 81 ; 34 L. J. C. 
 
 703 ; Fishmongers' Co. v. Maltby, cited P. 131 ; 13 W. R. 318 ; see also Willianas 
 
 p. 294 of 1 Dow. V. Rawlinson, 8 Bing. 71. 
 
 " C. P. (Ir.) 1 R. 7 C. L. 57 ; 21 W. * 22 L. T. 84. 
 R. 439.
 
 374 THE LAW OF GUARANTIES. 
 
 It was held, that as the existence of the balance did not 
 necessarily involve any imputation of misconduct against 
 the relieving officer, it was not a material fact which the 
 guardians were bound to comnmnicate to the surety be- 
 fore he executed the bond. In tliis case, Coleridge, J., 
 while admitting that fraud might be proved by the 
 non-communication of any material fact, considered, 
 that, inasmuch as the relieving officer, from tlie nature 
 of Ms office, must be sure to have money in hp,nd, the 
 non-communication of this fact was no fraud upon the 
 surety. 
 
 The other class of frauds committed prior to the ex- 
 ecution of a guaranty, by which its operation is de- 
 stroyed, consists of misrepresentations.^ 
 
 Misrepresentation is the assertion of that which is 
 false. It need not consist oi verbal assertion., for a. false 
 assertion inivriting will certainly also amount to misrep- 
 resentation. Thus, in the case of Lee v. Jones,^ 
 which w^e have already cited,Hhe majority of the judges 
 considered that there was " cogent evidence of such a 
 suppression of the truth by a partial, inaccurate and 
 subdolous setting forth by the plaintiffs, in the written 
 agreement of facts within their knowledge, material for 
 the proposed sureties to be informed of, as, along with 
 the non-communication of other facts, material for them 
 to knov/, amounted to a misrepresentation to the pro- 
 posed sureties," that the principal debtor during the 
 five years he had acted, as the plaintiff's commission 
 agent, had proved himself to be a man worthy of trust 
 and confidence, " a satisfactory guarantor of others, and 
 himself the safe subject of a guaranty." Blackburn, J.,, 
 
 ' 17 C. B. N. S. 482. ^ Ante,^. 373. 
 
 * Russell V. Clark's Executors, 7 Cranch R. 69.
 
 THE DISCHARGE OF THE SURETY. 375 
 
 in this case, said : " I think that it must in every case 
 depend upon the nature of the transaction whether the 
 fact not disclosed is such that it is impliedly represented 
 not to exist, and that must generally be a question of 
 fact proper for a jury." 
 
 We now come to a case of verbal misrepresentation 
 — the case of Blest v. Brown. ^ There, the plaintiff, as 
 surety, executed a joint and several bond to secure to 
 B. and M. money which might become due to them from 
 A. M. for flour to be supplied by them to A. M. for the 
 purpose, as stated on the face of the bond, of enabling 
 him to carry out a contract with the government. It 
 appeared by the evidence that B. and M. never supplied 
 A. M. with flour for the purpose of the contract, and 
 also, that, at the time when the bond was executed, the 
 plaintiff had inquired of the agent of B. and M., 
 whether there were any trade debts owing from A. M. 
 to B. and M., to which the agent had answered, " No." 
 It turned out, however, that there was a ti'ade debt ow- 
 ing, but the period of credit had not expired. Sir J. 
 Stuart, V.-C, held, that there had been a misrepresenta- 
 tion of a material fact which might have influenced the 
 conduct of the plaintiff in executing the bond, and that, 
 therefore, he was entitled to be relieved from its conse- 
 quences. On appeal, this decision was affirmed by Lord 
 Chancellor Westbury, who said : " Now, it must always 
 be recollected in what manner a surety is bound. You 
 bind him to the letter of his engagement. Beyond the 
 proper interpretation of that engagement you have no 
 hold upon him. He receives no benefit and no consider- 
 ation. He is bound, therefore, merely according to the 
 proper meaning and effect of the written engagement 
 
 ■' 8 Jur. N. S. 003.
 
 o7b THE LAW OF GUARANTIES. 
 
 that he lias eutered into. If that written en2:aG:ement 
 is altered in a single line, no matter whether it he 
 altered for his benefit, no matter whether the alteration 
 be innocently made, he has a right to say, ' The contract 
 is no longer that for which I engaged to be surety; 
 you have put an end to the contract that I guaranteed, 
 and my obligation, therefore, is at an end. ' " 
 
 Frauds, howev^er, may not only be i^rior to the 
 execution of a guaranty, but they may (as has been 
 stated) also be subsequent to it. It remains to deal with 
 frauds of this description. However, fraud suhsequent 
 to the execution of the guaranty does not often occur, 
 and there are not many examples of this species of fraud. 
 
 If the creditor connives at the default of the princi- 
 pal debtor, this will, of course, be quite sufficient to 
 discharge the surety.^ * 
 
 We have already seen, that, in the case of a guaranty 
 for the honesty of another person in an employment, if 
 the person guaranteed conceals from the surety, that, 
 previously to the giving of the guaranty, the person 
 employed had committed defalcations iii the service of 
 the person guaranteed, the surety would be relieved on 
 the ground oi fraud. And, in the recent case of Phil- 
 lips V. Foxall,^ it was decided, that if, after tJie execution 
 of such a continuing guaranty^ a similar concealment 
 be made, the surety is equally discharged. Thus, if, 
 after the execution of such a guaranty, the person em- 
 
 ' Dawson v. Lawes, 23 L. J. Ch. 434. F. 525 ; Shepherd v. Beecher. 2 P. W. 
 See also Mactaggart v. "VYatson, 3 C. <fe 288. 
 
 " L. R. 7 Q. B. 666. 
 
 * Baker v. Briggs, 8 Pick. (IVIass.) 122 ; Commonwealth v. Miller, 8 S. 
 & R. 452 ; McLean v. Lafayette Bank, 3 McLean, 687. In these cases, the 
 collusion consisted in the surrender of collaterals held by the creditor, to 
 the principal, ■without the knowledge or consent of the surety.
 
 THE DISCHARGE OF THE SURETY. 377 
 
 ployed is guilty of a dislionest act, or even of tlie 
 breacli (wlietlier accompanied with dishonesty or not) 
 of the duty for the due fulfilment • of which another 
 has become surety, and the employer continues to em- 
 ploy such person after knowledge of these facts, the 
 surety is discharged.-^ 
 
 (2) An alteration made in the instrument of guar- 
 anty after its execution will sometimes discharge the 
 surety. 
 
 It was decided in Pigot's case,~ that the alteration of 
 a deed by the obligee^ in Si2)ol?it material, or not material, 
 avoids the deed ; but the alteration by a stranger, with- 
 out the privity of the obligee, does not avoid the deed, 
 unless the alteration is in a material point. This doc- 
 trine has been, in part, at all events, extended to written 
 instruments not under seal, and, among others, to guar- 
 anties. Thus, in the case of Davidson v. Cooper,^ a 
 plea alleged that, after the making of the guaranty sued 
 on (which was under seal), and whilst it was in the 
 hands of the plaintiff, it was, without the knowledge of 
 the defendant, by some person, to him unknown, altered 
 in a material particular, by affixing two seals by and 
 near to the signatures of the defendants, as and for their 
 seals, thereby causing the guaranty to purport to be the 
 deed of the defendants. It was held, that the guaranty 
 became void in law, and that the plaintiff' could not re- 
 cover.* * Again, in the case of The Bank of Hindustan, 
 
 ' Phillips V. Foxall, L. R. 7 Q. B. Ml M. A W. 778 ; s. c. (Cam. Scacc.) 
 
 666; Sanderson v. Aston L. R. 8 Exch. 13 M. cfe W. 343, 352. 
 73. See also observations of Malins '' The removal of the seal of one of 
 
 V. C. in Burgess v. Eye, L. R. 13 Eq. the obligors to a several bond does not 
 
 450. See also Peel v. Tatlock, 1 B. & render such bond invalid as to the 
 
 V. 419, 423. others. See Collins v. Prosser, 1 B. (fe 
 
 "" 11 Rep. 27 a. C. 682. 
 
 * So where in an action on a written guaranty of the payments of C.
 
 378 THE LAW OF GUARANTIES. 
 
 Cbiua and »Tapaii v. Smith/ an action was brought on a 
 guaranty not under seal, whereby, as alleged in the 
 declaration, the defendant j^romised that, if the plaintiffs 
 paid a large sum of money to the liquidator of another 
 bank, he (the defendant) would be responsible for the 
 repayment of such sum and would indemnify the plaint- 
 iffs. The plea to the declaration in this action set out 
 the guaranty itself, and alleged that the contract Avas to 
 contribute aliquot parts, as the bank well knew, and 
 that several of the names of the persons who had signed 
 the guaranty were struck out, whilst the instrument of 
 guaranty was in the plaintiffs' possession. It was'held, 
 that this alteration alleged in the plea precluded the 
 bank from recovering, and that as the alteration ap- 
 peared to have been made by the bank secretary, it was 
 just as if the bank itself had made it. "* 
 
 However, so far, at any rate, as instruments not 
 under seal are concerned, the doctrine of Pigot's case is 
 qualified by the recent case of Aldous v. Cornwell.^ In 
 this latter case, the Court of Queen's Bench held that in 
 such a case (the instance actually under consideration 
 being that of a promissory note) an immaterial altera- 
 tion, though made by a party to it, does not render it 
 void. Now in Pigjot's case it was, as before observed, 
 
 ' 86 L. J. C. P. 241. ^ L. E. 3 Q. B. 573. 
 
 & Co., it appeared on the face of the instrument that the words " and 
 company " had been interlined therein in a different handwriting from 
 that of the rest of the instrument, and in different ink; held, that the 
 burden was on the plaintiff to show that the interlineation was made be- 
 fore the instrument was executed. Wilde v. Armsby, 6 Cush. (Mass.) 314. 
 To the same effect see State v. Pepper, 31 Ind. 76 ; Beesley v. Hamilton, 50 
 111. 88 ; Hanson v. Crawley, 41 Ga. 303 ; Britton v. Dierker, 46 Mo. 591 ; 
 Neflf V. Homer, 63 Penn. St, 327; Hart v. Clouser, 30 Ind. 210 ; Fulmer r. 
 Seitz, 68 Penn. St. 237 ; Voiles r. Green, 43 Ind. 374. 
 * Smith r. United States, 2 Wallace (U. S.), 219.
 
 THE DISCHARGE OF THE SURETY. STi) 
 
 laid down that any alteration in a deed, whetlier ma- 
 terial or not, made by the obligee, avoided the deed. 
 But as in Pigot's case it was found, as a fjict, that the 
 alteration, which was not a material one, was made by 
 a stranger, the Court of Queen's Bench, in Aldous v. 
 Cornwell,^ did not consider themselves bound by Pigot's 
 case.^ Moreover, even had this not been so, it is con- 
 ceived that, inasmuch as in Pigot's case the alteration 
 was in a deed, whilst in Aldous v. Cornwell it was in an 
 instrument not under seal, the Court of Queen's Bench 
 were, in deciding the latter case, in no sense bound by 
 the former case. And, in all probability, even should 
 the same question ever arise in reference to a deed, our 
 judges would be disposed to follow Aldous v. Cornwell. 
 And, in accordance with the principle acted on in Al- 
 dous V. Cornwell, where an alteration not material to 
 the defendant's liability was made in a guaranty by the 
 plaintiff, with the consent of the principal debtor, it was 
 held that the guaranty was not thereby avoided.'^ 
 
 The ground on which an alteration avoids an instru- 
 ment is explained in Davidson v. Cooper,* to be " that 
 a party who has the custody of the instrument made 
 for his benefit is hound to preserve it in its original state." 
 In reference to this, a distinguished writer on Englisli 
 law^ has said, "But although it is no doubt highly 
 important that all legal instruments should be preserved 
 in their integrity, it may perhaps be doubted whether 
 the doctrine in question would ever have existed, had 
 there been no other reason for it tlian the duty of a 
 
 ' L. R. 3 Q. B. 5T3. * Per Lord Denman, C. J., 13 M. & 
 
 ' See the judgment in Aldous v. W. at p. 352. 
 Cornwell. ' ^ Mr. J. William!?, Q. C, in his work 
 
 ' Andrews v. Lawrence, 19 C. B. N. entitled " The Principles of the Law 
 S. 768. . of Personal Property," at p. 88 (7th 
 
 edition).
 
 380 THE LAW OF GUARANTIES. 
 
 person having the custody of an instrument made for 
 Lis benefit to preserve it in its original state." 
 
 (3) Failure of the consideration for ivhich the 
 guaranty was given discharges the surety.^ 
 
 Failure of the consideration for which the guaranty 
 was given will of course discharge the surety, just as 
 failure of the consideration in any other case releases 
 the promiser. An instance of a failure of consideration 
 for a guaranty is afforded by the case of Cooper v. 
 Joel.^ In that case, upon the eve of a sale by the sheriff, 
 a surety gave a written guaranty for payment of the 
 judgment debts by instalments, in consideration of the 
 judgment creditors' consenting to postpone the sale 
 under the execution. It turned out that the consent 
 of another person was necessary in order to prevent the 
 sale, and, in consequence, the sale took place. The 
 surety gave notice that the consideration having failed, 
 the guaranty was at an end. It appeared that repre- 
 sentations were made on behalf of the judgment 
 creditors, when they took the guaranty, that they had 
 power to stop the sale, and that it would be stopped. 
 It was held that the surety was entitled to have the 
 guaranty given up. 
 
 In the recent case of Ex i^arte Agra Bank,^ it was 
 decided, on the facts of the case, that there was no 
 
 ' 1 De G. F. <fe J. 240. "" L. R. 9 Eq. '725. 
 
 * Callaway ». Hearn, 1 Houst. (Del.) G09 ; Kimball ». Walker, 30 111. 
 511; Gray v. Hanclkinson, 1 Bay (S. C.) 278; State «. Gaillard, 2 Id. 11 ; 
 Mattock V. Gibson, 8 Rich. L. 437; Leonard ». Bates, 1 Blackf. 173; Swift 
 T. Hawkins, 1 Dallas, 17; Case v. Boughton, 11 Wend. (K Y.) 106; Solo- 
 mon t). Kimmcl, 5 Binn. (Penn.) 232 ; Coyle v. Fowlei; 3 J. J. Marsh. (Ky.) 
 473 ; Walker «. Walker, 3 Ired. L. (N. C.) 335 ; Peebles v. Stephens, 1 
 Bibb (Ky.) 500; CJay v. Mott, 43 Ga. 252; Hall v. Bobbins, 4 Lans. (N. 
 Y.) 463 ; 61 Barb. (N. Y.) 33.
 
 THE DISCHARGE OF THE SURETY. 381 
 
 failure of consideration. There a bank granted a letter 
 of credit to a company, mid agreed to accept hills drawn 
 upon them hy the compantj in respect of that credit^ on 
 the terms that the company should ship tea and forward 
 bills of lading, invoices and policy of insurance on the 
 tea to the bank, and should also draw on B. <fe Co. bills 
 to be accepted by B. & Co. to an amount sufficient to 
 cover the amount authorized by the letter of credit. 
 B. <fe Co. guaranteed the performance by the company 
 of these terms, "holding themselves responsible for the 
 same." The company drew on the bank, and the bank 
 accepted the bills, but, owing to the failure of the bank 
 after the dates when the bills were drawn, and before 
 they became due, the company shipped no tea, and did 
 not perform any of the terms agreed on. The bills ac- 
 cepted by the bank were, it would appear, ultimately 
 paid. It was held that the failure of the bank was no 
 reason for the default of the company to perform its 
 part of the contract, and that B. <fe Co. were liable on 
 their guaranty.^ 
 
 II. The surety may be discharged by a revocation 
 of the contract of suretyship.^ 
 
 ' It will be seen, later on, that the of failure of consideration was also in- 
 decision in this case rests mainly upon volved. 
 another ground, though the question 
 
 * Such a release, it appears, however, will not be a consideration in 
 law. Where a surety on a promissory note, fearing that he would have to pay 
 the debt, promised his principal that, if he would procure other security 
 and release him from liability, and surrender certain promissory notes he 
 held against his pi'incipal, and the principal did so procure other securi- 
 ties ; and the surety, on being released from his liability, neglected and re- 
 fused to deliver up the notes ; held that there was no consideration for his 
 promise to deliver them up. Eitenour v. Mathews, 42 Ind. 7. 
 
 Defendant guaranteed a note, which was apparently outlawed, as fol- 
 follows : " I hereby guarantee that the above note is not outlawed, accord-
 
 382 THE LAW OF GUARANTIES. 
 
 A revocation of the contract made arises either (1), 
 by agreement, or (2), by death. Let us consider these 
 two modes of revocation separatel3\ 
 
 (1) It is by no means necessary that au agreement, 
 in order to have the effect of revoking a contract of 
 suretyship, should be. an express agreement to that 
 effect. A rescission of the suretyship frequently hap- 
 pens by the operation of an implied agreement. And 
 it is not unfrequently the case, too, that, in point of 
 fact one at least of the parties had no intention what- 
 ever of discharging the surety. Let us discuss, in 
 detail, these modes of rescinding a contract of surety- 
 ship, and discuss — 
 
 («) Rescissions by express agreement ; and 
 (/S) Rescissions by implied agreement. 
 
 («) The most frequent cases in which a rescission 
 
 ing to the laws of our State." In an action by the holder of the note 
 against the maker, the latter set up the defense of the statute of limita- 
 tions, which defense was held good. At the trial of the action upon the 
 guaranty, the defendant offered to show that the maker of the note was 
 irresponsible. Held, that no consideration being expressed therein, the 
 guaranty was invalid, and that the defendant was entitled to show that 
 the maker of the note was irresponsible, and that ajudgment against him 
 could not be collected. Clark v. Ilam^jton, 4 N. Y. S. C. R. (Thompson & 
 Cook,) 75. 
 
 The defendant entered into a guaranty, with a penalty to the plaintiff, 
 that A, should perform an award, which was, that A. should pay a certain 
 sum to the plaintiff, should pay to B. and C. debts on which A. and the 
 plaintiff were jointly liable, and should hold the plaintiff harmless. A. 
 not having paid said sum, the plaintiff obtained a judgment against the 
 defendant for the amount of the penalty, and execution was issued for the 
 sum due from A. to the ])laintiff, and was paid by the defendant. The 
 plaintiff assigned bis claim on the judgment; and afterwards B. released, 
 without cons,ideration, the said debt due to him; and C. also released the 
 debt due to him ; and, at the same time, the assignee agreed to pay C. a 
 part of what he should collect from the defendant; the assignee then 
 brought scjr«/a«as on the judgment in the name of the plaintiff. Held 
 that, as the plaintiff did not appear to have been damnified, execution 
 ought not to issue. WaUistJ. Carpenter, 101 Mass. 347.
 
 THE DISCHARGE OF THE SURETY. 383 
 
 of a contract of suretysliip is made by ex])ress agree- 
 ment are, where (A) the surety revokes the guaranty ; 
 or (B) a new agreement is substituted for it by mutual 
 consent. 
 
 (A) The surety may he discliarged hy notice of revo- 
 cation of the guaranty given hy the surety to the creditor. 
 
 We have already seen/ that a mere offer to guar- 
 antee may be revoked, by notice, at any time before it 
 is expressly or impliedly accepted.* Whenever it is 
 expressly provided, in the contract of guaranty, that it 
 shall be determinable, on notice, by the surety, it is, of 
 course, revocable in the way thus specified.^ It is, 
 
 " ^nte, p. 3. ''Solvency Mutual Guarantee Com- 
 
 * The contract of guaranty is always revocable at the pleasure of the 
 guarantor, upon his giving sufficient notice, except where it is founded 
 upon a continuing consideration, the benefit of which the guarantor 
 either cannot or does not renounce, or where it is made to cover a specific 
 transaction which is not yet exhausted. 2 Parsons on Con. 30. 
 
 One putting his name under the names of original sureties, and with 
 no expressed qualification, will be understood as intending to do pre- 
 cisely what those signing previously had done, namely, to become with 
 them, a surety for the principal. Monson v. Drakeley, cited ante, note to 
 page 357. (But see, as to the position in which a signature is made on an 
 instrument, Doughty v. Bacot, cited ante, note *, page 215.) 
 
 The difierence between indorsers and sureties appears mainly to arise 
 in matters relating to questions of demand, notice (Tillman v. Wheeler, 17 
 Johns. (N. Y.) R, 326 ; Allen v. Eightmere, 20 Id. 365), and contribution. 
 Mere indorsers are not entitled to tender their contribution to make good 
 the default, but are each liable for the whole. Kerschner v. Conkling, 40 
 Conn. 77. The right of mutual contribution exists only among sureties 
 for the same thing. Monson v. Drakeley, uhi supra, where it was held, 
 under the circumstances above set forth, that the defendant, by adding 
 his name to the list of sureties, became a supplemental surety for all the 
 prior parties, including the principal as well as the sureties, and hence, 
 that liability was to the holder in case of the default of all these parties. 
 There, there being no mutuality between him and the other sureties, he 
 was not liable to contribution, and, upon paying the note ; his remedy 
 was against the parties by whose default he suffered, for full indemnity. 
 
 And as to mixed cases of sureties on negotiable paper, see Sterling », 
 Stewart, 74 Penn. St. 445, and Simpson v. Bovard, Id. 351.
 
 384 THE LAW OF GUARANTIES. 
 
 however, ratlier doubtful, whether, in the absence of 
 express stipulation to that effect, a guaranty may be re- 
 voked by the surety after it has been 6i;^?3 pai'tialhj 
 acted upon. 
 
 And, Jirst^ as to guaranties not under seal. 
 
 In the maro-inal note to the case of Bastow v. Ben- 
 nett,^ it is stated, that an undertaking to be answerable 
 to a given amount for any goods supplied hy A. to B., 
 after goods to that amount have been supplied and 
 paid for, remains in force while A. supplies B. with 
 goods on the same footing, until eevoked by tile 
 
 SURETY.^ 
 
 Again, in Allen v. Kenning,^ Tindal, C. J., said, in 
 his judgment : " I entertain no doubt that this is a con- 
 tinuing guaranty, and that it w^as to be binding on the 
 defendant till the parties came to an understanding that 
 it was to he off.''"' 
 
 Moreover, the case of Brocklebank v. Moore,* is a 
 direct authority for the proposition that " a continuing 
 guaranty is countermandable by parol." 
 
 On the other hand, in the recent case of Offord v. 
 Davies,^ where an offer of guaranty was held to be re- 
 vocable till accepted by the opposite party, Erie, C. J., 
 says : " This promise by itself creates no obligation. It 
 is, in effect, conditioned to be binding if the plaintiff 
 acts upon it, either to the benefit of the defendant, or 
 to the detriment of himself. But, imtil the condition 
 has leen at least in part fidfilled^ the defendants have 
 the power of revoking it." From this language, it 
 
 pany v. Froame, 7 H. & N. 5. And see 221, does not allude to the subject of 
 
 also Boyd v. Robins, 4 C. B. N. S. 749. revocation. 
 
 1 3 Camp. 220. = 9 Bing. 618. 
 
 ^ It is necessary to mention, that ^ Cor. Abbott, C. J., Guildhall Sit- 
 
 the judf^uient of Lord Ellenborough, in tings after Trinity Term, 1823, referred 
 
 this case, as reported in 3 Camp. 220, to in 2 Stark. Evid. 3d ed. p. 510. 
 
 '12 C. B. N. S. 748.
 
 THE DISCHARGE OF THE SURETY. 385 
 
 would seem to be implied, that after the guaranty has 
 been even partially acted on, the surety cannot re- 
 voke it. 
 
 Secondly^ as to guaranties under seal. 
 
 At one time, it seems to have been thought, that, 
 under no circumstance, could a guaranty, under seal, be 
 revoked.^ However, in the recent case of Burgess v. 
 Eve,^ Malins, V. C, expressed the opinion, that, though 
 in the case of a guaranty, under seal, for the good be- 
 havior of another in an office or employment, a surety 
 might not arbiti-arily, and without the fullest justifica- 
 tion, withdraw that which he deliberately entered into ; 
 yet, as soon as the employed was guilty o^act which, 
 in the eye of a court of equity,'^ is a dishonest act, the 
 right of the surety to withdraw his guaranty attached.* 
 
 (B) The surety may he discharged by substitution of 
 a new contract before 'breach of the old one. 
 
 The substitution of a new agreement for the former 
 one, before any breach of the first, discharges the surety 
 from all liability under the first.f This was decided in 
 
 ^ Per Lord EUenborough, C. J., in = L. R. 13 Eq. 450. 
 
 Hassell v. Long, 2 iM. & S.'363, 370, = See also Hough v. Warr, 1 C. <fe P. 
 
 371; Gordon v. Calvert, 2 Sim. 253; 151. 
 but see Hough v. Warr, 1 C. & P. 151 . 
 Shepherd v. Beecher, 2 P. W. 287. 
 
 * 3 Parsons on Contracts, p. 30, 
 
 t And as to wlietber the surety need be prejudiced by this change in 
 the contract, see St. Albans Bank v, Dillon, 30 Vt. 122 ; Gardner «. Har- 
 beck, 21 HI. 129 ; Leeds v. Dunn, 10 N. Y. 371 ; Succession of Daigle, 15 
 La. An. 594 ; Bayley v. Clark, 7 Bosw. 94 ; Rowan v. Sharps, &c. Co. 35 
 Conn. 1 ; Toomer v. Dickerson, 37 Geo. 428 ; Darwin v. Reppy, 63 N. C. 
 318 ; Joslyn v. Eastman, 46 Vt. 258 ; Barker v. Scudder, 56 Mo. 272. 
 
 But it seems that an alteration, addition or diminution of the duties 
 of a public officer, made by the legislature, will not discharge his official 
 bond or the sureties thereon, so long as the duties required are the appro- 
 priate functions of his office. People v. Vilas, 36 N. Y. 459 ; See also Mil- 
 ler V. Stewart, 9 Wheat. 680 ; United States v. Hillegas, 3 Wash. C. C. 70 ; 
 25
 
 38G THE LAW OF GUARANTIES. 
 
 Taylor v. Hilary.^ There the declaration stated that 
 the defendant guaranteed the plaintiff in supplying 
 goods to one II. H. The plea was, that before T)reach 
 of the agreement declared on, it was agreed between 
 the plaintiff and the defendant, that the plaintiff should 
 supply goods to H. H., and that they should be j:)aid 
 for at tlie end of tln'ee months by a bill at four months, 
 to be accepted by the defendant, which agreement the 
 plaintiff, before breach, accepted in discharge of the 
 fo'rmer agreement and released the defendant from the 
 performance thereof. It was held that the plea was 
 good, and that the second agreement was a defense to 
 the action, as being a substituted contract. " For," 
 said the court, " before the breach of the first agreement, 
 a new agreement is entered into, varying the contract 
 in an essential part, the time of payment. The latter, 
 then, is. a substituted contract, and is an answer to an 
 action upon the former.* The plea is not a j^lea of ac- 
 cord and satisfaction, and does not, therefore, require an 
 averment of performance." 
 
 In pleading a defense of this nature, it must, how- 
 ever, always be borne in mind thaf there can be no ac- 
 
 ' 1 C. M. <fe R. 741. 
 
 Same x. Tilotson, 1 Paine C. C. 305 ; Postmaster General t. Reeder, 4 
 Wash. C. C. 678. 
 
 * So too, a novation will discharge the surety. Novation is an extinguish- 
 ment of an old debt and the substitution of a new debt in its place, .and 
 both the extinguishment and the substitution must be actual and complete. 
 Roth «. Miller, 15 S. & R. (Pa.) 162 ; Gallagher's Exrs. v. Roberts, 2 Wash. 
 C. C. 191, 321 ; Anderson ». Davis, 9 Vt. 136 ; Curtis v. Brown, 6 Cush. 
 (Mass.) 488 ; Wood ». Corcoran, 1 Allen (Mass.) 405 ; Quintard v. De 
 Wolf, 84 Barb. (N. Y.) 95 ; Williams v. Little, 6 Shaw, 323 ; Sneed's Exrs. 
 V. White, 3 J. J. Marsh. (Kv.) 527; Brown v. Wright, 7 Monro (Ky.) 398 ; 
 Musgrave v. Glasgow, 3 Ind. 31 ; Choppin t. Gobbold, 13 La. An. 238 ; Gails 
 ■c. Osceola, 14 La. An, 54 ; and see page 108, note *,
 
 THE DISCHARGE OF THE SURETY. 387 
 
 cord- and satisfaction of a deed before breach. In the 
 case of The Mayor of Berwick v. Oswald/ the plea 
 was held to be bad, owing to this princij^le not having 
 been observed. There, to an action on a guaranty tin- 
 der seal, it was pleaded that, before breach, the plaint- 
 iffs accepted a fresh surety bond in discharge of the 
 deed sued on. It was held, on demurrer, that this plea 
 was bad, as pleading accord and satisfaction to a deed 
 hefore breach. The fresh surety bond, it must be ob- 
 served, though nearly in the same terms as the deed 
 on which the action was brought, did not refer to the 
 forrtier deed. 
 
 As to the form in which a bindina; substitution of 
 one guaranty for another can be made, and whether such 
 substitution need be in writing or not, is a somewhat 
 doubtful point : guaranties are of course within sect. 4 
 of the statute of frauds. And it seems to be vexata 
 qucBstio whether a contract within the statute of frauds 
 can be wholly waived and abandoned, before breach, 
 by a subsequent agreement not in writing.^ It is clear, 
 however, that any alteration, before breach in the term$ 
 of an agreement, which falls within the statute, must 
 be in writing.^ An alteration of a guaranty, therefore, 
 is not binding unless it be in writing. Thus, in Emmet 
 1). Dewhurst,* a composition was guaranteed by the de- 
 fendant to all the creditors of A. B. who executed a 
 certain release before a fixed day. The plaintiff, who 
 was one of such creditors, alleged as a reason why he 
 did not execute the release within the fixed time, that 
 a verbal arrangement was entered into between him 
 ari*d the defendant's agent, the effect of which was to 
 bind the plaintiff to accept the composition, but to 
 
 ' 1 Ell. & Bl. 295. . = See Noble ^^Ward, L. R. 2 Ex. 135. 
 
 * Chitty on Contracts, 9tb ed. p. 107. * 3 Mac. & G. 587.
 
 388 THE LAW OF GUARANTIES. 
 
 allow him to postpone his execution of the release. It 
 was not only decided that there was no evidence that 
 the defendant's agent had authority to enter into any 
 new agreement, but it was held, that if such authority 
 had been proved, the agreement being within the 4th 
 section of the statute of frauds, any alteration of its 
 terms must have been evidenced by writing. It would 
 seem, moreover, from the observations of Lord Truro, 
 in his judgment in this case, that whether what passed 
 between the plaintiff and the defendant's agent could or 
 could not be contended to be a variation of the old 
 agreement, or as the formation of a new agreement, 
 that it ought to have been evidenced by writing. 
 
 {f) The instances in which the law implies a rescis- 
 sion of the contract of suretyship are very numerous. 
 For the law favors a surety, and watches his position 
 and his rights w^ith considerable jealousy. Accordingly, 
 as a general rule, an implication that he is discharged 
 is raised (A) if the creditor and the principal debtor by 
 agreement vary the terms of the original contract ; or 
 (B) if the creditor take a new security from the princi- 
 pal debtor in the place of the old one ; or (C) if the 
 creditor discharge the principal debtor ; or (D) if the 
 creditor discharge a cosurety; or (E) if the creditor 
 give time to the principal debtor ; or (F) if the creditor 
 agree with the principal to give time to the surety. All 
 these several modes in which an implied discharge is 
 given to the surety call for separate notice and discus- 
 sion. 
 
 (A.) The surety may he discharged ly a variation 
 hy the creditor either of the terms of the contract 'he- 
 tween ike creditor and the principal debtor^ or of the 
 terms of the contract originally made between the cred- 
 itor and the surety.
 
 THE DISCHARGE OF THE SURETY. 3S9 
 
 A variation of the terms of tlie original contract 
 made -between the principal debtor and the creditor 
 will, generally speaking, discharge the surety.* And 
 this is the case, whether such variation he, first, of the 
 original agreement between the principal debtor and 
 the creditor ; or, secondly, of the original agreement 
 between the surety and the creditor. It will, however, 
 be more convenient to consider these modes of making 
 the variations separately. Let us first deal with the 
 case of a variation being made of the original agreement 
 between the creditor and the principal debtor. There 
 are two states of facts under which a surety is dis- 
 charged by a variation of the contract between the 
 principal debtor and the creditor. For, 1st, any ma- 
 terial variation of the terms of the contract between the 
 creditor and the principal debtor will always discharge 
 the surety ; and 2dly. a variation of those terms which 
 is not material will also discharge the surety, if it 
 clearly appears that he became surety on the faith of 
 the original contract, or if he has made these terms part 
 of his own contract. And if notice were given to the 
 surety of the terms of the contract between the creditor 
 and the principal debtor, and after such notice he ex- 
 ecuted the guaranty, he is held to have become surety 
 on the faith of the original agreement.^ f And where 
 the surety has made the terms of the original contract 
 
 ' Sanderson v. Aston, L. R. 8 Exch. 73, 'ZG. 
 
 * Giles V. Crosby, 5 Bosw. (N. Y.) 389 ; Miller «. Stewart, 9 Wheat. 
 680 ; Vose v. Florida R. R. Co. 50 N. Y. 369 ; and cases cited in note t, 
 page 385. But a verbal agreement modifying a written guaranty is not 
 good, nor can the surety show such in defense ; thougb it seems, that if 
 the verbal agreement be accepted by the creditor, this might operate to 
 discharge the surety. Brady v. Peiper, 1 Hilton (K Y.) 61. 
 
 t See cases cited in note t, page 385.
 
 390 THE LAW OF GUARANTIES. 
 
 between the creditor and the principal debtor part of 
 his own contract, any variation will discharge th« 
 surety, because it amounts to a breach of the creditor's 
 contract with the surety, and not merely to a breach of 
 the creditor's contract with the principal debtor. 
 
 .Let us consider, in order, both these states of facts 
 under which the surety is discharged. 1st, as to a ma- 
 terial variation of the terms of the contract between the 
 creditor and the principal debtor. A good instance of 
 the surety being discharged Ijy a material variation of 
 the terms between the creditor and the principal is fur- 
 nished by the case of The General Steam Navigation 
 Co. V. Rolt.^ In that case A. contracted with B. to 
 build for him (A.) a ship for a given sum, to be paid 
 by instalments as the work reached certain stages ; and 
 C. became surety for the due performance of the con- 
 tract on the part of B., the builder. A. allowed B. to 
 anticipate the greater portion of the last two instal- 
 ments. It was held that C. (the surety) was discharged, 
 as A., by allowing B. to anticipate the instalments, had 
 materially altered the terms of the contract with B., the 
 principal." 
 
 Another and very similar instance of the discharge 
 of the surety by a material variation, as between the 
 creditor and the jirincipal, of the original contract, oc- 
 curred in the case of Calvert v. The London Docks Co.^ 
 There a contractor undertook to perform certain works 
 upon the terms that three-fourths of the work as 
 finished should be paid for every three months, and. 
 
 ^ ^ G C. B. N. S. 550. « 2 Keen, 638. See also TVarre v. 
 
 Calvert, V Ad. & E. 143. 
 
 * As to whether the surety need be prejudiced on the change of the 
 contract, see note t, page 385.
 
 THE DISCHARGE OF THE SURETY. 391 
 
 the remaining one-fourth, on the completion of the 
 whole work. Payments, exceeding three-fourths of the 
 price of the work done, having, without the consent of 
 the sureties for the due performance of the work, been 
 made to the contractor before the completion of the 
 contract, it was held that such sureties were discharged. 
 In order to have the effect of discharging the surety, 
 however, the variation made must clearly appear to be 
 a material one. ^ Whether or not a variation be ma- 
 terial is a matter depending almost entirely on thej^ecul- 
 iar circumstances of each case. An instance of a varia- 
 tion being held to be not a material one, and therefore 
 not to discharge the surety, occurred in the case of 
 Stewart v. M'Kean.^ There the defendant executed the 
 following guaranty, addressed to the plaintiffs: — 
 
 " Gentlemen, — I hereby agree to guarantee my 
 brother, Mr. W. M'Kean's intromissions,^ as your agent 
 in Leith, to the extent of 5,000^. sterling ; and I am, &c. 
 
 "H. M'Kean." 
 
 Soon after the commencement of the agency, it was 
 agreed between the plaintiffs aud W. M'Kean, that the 
 latter should furnish to the plaintiffs every six months 
 an account current of the stock sent by them and of 
 cash received by him from customers. The practice 
 continued for about a year and a half, when a new 
 agreement was entered into between the plaintiffs and 
 
 ' 10 Exch. 675. cash of a princpal coming into the 
 
 ' The word " iutromission " i^a term hands of his a^ent, and to be accounted 
 
 partly legal and partly mercantile, and for by the agent to his principal. 
 
 signifies dealings with stock, goods and 
 
 * An amendment neither increasing nor diminishing their liability will 
 not discharge the sureties to the usual bond given on release of a vessel 
 seized by process of admiralty. Newell v. Norton and Ship, 3 Wallace 
 (U. S.) 357. But see note t, page 385.
 
 392 THE LAW OF GUARANTIES. 
 
 W. M'Kean, without the defendant's hiowledge or con- 
 sent. This new arrangement was to the effect, that W. 
 M'Kean slioiikl, from time to time, make his promissory 
 notes, payable four months after date, in favor of the 
 plaintiffs, and that he should send them to the plaintiffs, at 
 the rate of about one note per month ; and that, on the 
 notes becoming due, W. M'Kean should transmit to the 
 pLiintifts an account of all the debts or sums he had 
 collected from their customers, and that the plaintiff's 
 should send him such an amount of cash as would, 
 when added to the money already in his hands, enable 
 him to take up the notes. This agreement was im- 
 mediately acted upon, and was continued to be acted 
 upon by the plaintiffs and W. M'Kean until the termin- 
 ation of his employment as their agent. The practical 
 effect of this agreement was to cause AV. M'Kean to pay 
 over the moneys collected by him more promptly to the 
 plaintiffs than he would otherwise have done. When 
 W. M'Kean ceased to be in the employment of the 
 plaintiffs, it was found that he had received certain 
 moneys for the plaintiffs for which he did not and could 
 not account. In an action upon the above guaranty, it 
 was held, per Parke, B., Alderson, B., and Martin, B. 
 (Pollock, C. B., dissentiente)^ that, inasmuch as the guar- 
 anty left the mode of accounting open to the will of the 
 em2:)loyers (the plaintiffs), provided they adopted a 
 reasonable one, the agreement between the plaintiffs 
 and their agent, W. M'Kean, as to the mode of account- 
 ing by means of promissory notes, as above mentioned, 
 did not discharge the surety from his liability upon the 
 guaranty. 
 
 The recent case of Sanderson v. Aston ^ is another 
 
 ' L. R. 8 Exch. 73.
 
 THE DISCHARGE OF THE SURETY. 393 
 
 instance of a variation being held to be not a material 
 one. In that ease the declaration was on a bond given 
 to the plaintiff by the defendant. The bond, thus de- 
 clared on, recited that by an agreement of even date, the 
 plaintiff' had agreed to admit J. into his service as " clerk 
 and employer" (not further stating the terms of the 
 agreement), and was conditioned for J.'s accounting for 
 and paying over to the plaintiff all money.s which he 
 might receive on the plaintiff's account. The breach 
 alleged was that J. had received moneys for the plaintiff', 
 which he had not accounted for or paid over. 
 
 Among other pleas, the defendant pleaded, on equi- 
 table grounds, that the original agreement between the 
 plaintiff' and J. was, that such agreement should be 
 terminable by one month's notice, and that the plaintiff 
 and J. afterwards, and before the defaults sued for, 
 made it terminable by three months' notice, without the 
 defendant's consent. It was held (Martin, B., duhitante)^ 
 that this plea was bad, on the ground that it did not 
 show that the term as to the joeriod of notice was made 
 part of the defendant's contract, and that the alteration 
 alleged did not in fact materially add to tlie defendants 
 Hslc} 
 
 Moreover, even thoug-h a material variation be made 
 by the principal debtor and the creditor in the terms 
 of their original contract, or if the creditor so deals 
 with his principal debtor, as to alter the position of the 
 surety, still the surety is not discharged, if the transac- 
 tion was with his concurrence.^ 
 
 2dly, as to the discharge of the surety by a varia- 
 
 ' Kelly, C. B., in his judgment in this are made part of the suretj^'s agreement, 
 
 case, saj's: "The authorities cited go or unless something has been done 
 
 to show that we are to look at the terms which, with reference to those terms, 
 
 of the surety's engagement, not at the substantially alters his position." 
 terms of any agreement between the em- " Woodcock v. Oxford and Worcester 
 
 ployer and employed, unless these terms Banking Co. 1 Drew. 521.
 
 394 THE LAW OF GUARANTIES. 
 
 tion wliicli is not in itself material, where tlie surety has 
 contracted on the faith of the original contract, or has 
 expressly made the terms of it part of his own contract. 
 
 The surety is held to have become surety on the 
 'faith of the original agreement, if notice was given to 
 him of the terms of the contract between the creditor 
 and the principal debtor, and \i after such notice, he exe- 
 cuted the guaranty.^ 
 
 Where, too, the surety has made the terms of the 
 original contract between the creditor and the principal 
 debtor part of his own contract, any variation will dis- 
 charge the surety, because it amounts to a breach of the 
 creditor's contract ivitli the surety^ and not merely to a 
 breach of the creditor's contract with the principal 
 debtor.* 
 
 Such a case is that of Griyn v. Hertel.'^ There the 
 defendant, in consideration that the plaintiffs would 
 lend to S. h Co. 5,000?., promised to be answ^erable for 
 the same. At the time the guarabty was given S. <fe 
 Co. Avere indebted to the plaintiffs in a considerable 
 sum of money, for whicli the plaintiffs held a promis- 
 sory note, drawn by S. <fe Co., and other bills as security. 
 Oil receiving the guaranty the plaintiffs canceled the 
 note and delivered up the bills which they held. S. <fe 
 Co. then delivered those bills back again to the plaint- 
 iffs, together with a new promissory note, but no money 
 passed. It was held that the transaction did not amount 
 to "a loan of money, so as to charge the defendant. 
 
 The same strict doctrine w^as also applied in Garrett 
 V. Handley.^ There it was held that if a defendant 
 
 ' Sanderson v. Aston, L. R. 8 Exch. = 8 Taunt. 208. 
 
 73, 76. ' 4 B. <fe C. 664. 
 
 * Cases cited in note t, page 385.
 
 THE DISCHARGE OF THE SURETY. 395 
 
 guarantee payment of money to be advanced to B. by 
 the plaintiff, and the plaintiff, instead of advancing the 
 money himself, gets another to do so, who debits B. in 
 his books, the defendant is not liable to the plaintiff on 
 the guaranty. 
 
 However, where a person enters into a bond as surety 
 for the performance by another of two things, which are 
 separate and distinct, a subsequent alteration of the 
 principal's contract as to one of them, without the 
 surety's consent, does not release the' surety from his 
 contract of suretyship as to the other.^ * 
 
 Secondly^ let us next deal with the case of the varia- 
 tion of the terms of the agreement originally made be- 
 tween the creditor and the surety.f 
 
 As a general rule, any variation of the terms orig- 
 inally made between the creditor and the surety dis- 
 charges the surety. Thus, for "instance, in Bacon v. 
 Chesney,^ it was held, that if A. engages to guarantee 
 the amount of goods supplied by B. to C, provided 
 eiglitee'd months' credit be given, and B. gives credit for 
 tivelve months only, he is not entitled, after the expira- 
 tion of six months more, to call upon A. on his guar- 
 anty. Lord Ellenborough, in this case, said: "The 
 claim as against a surety is stHctissimi juris, and it is 
 incumbent on the plaintiff to show that the terms of 
 the guaranty have been strictly complied with." And 
 so, again, where the bond by a surety purported to 
 guarantee the payment of flour (of a specified quality), 
 to be supplied by the obligee, in order to enable the 
 
 ' Harrison v. Seymour, L. R. 1 C. P. 518. ' 1 Stark. 192. 
 
 * Neglect to sue a contractor for one breach, does not discharge his 
 sureties as to others. Sacramento v. Kirk, 3 Cal. 419. 
 t See cases cited in note t, page 385.
 
 396 THE LAW OF GUARANTIES. 
 
 principal debtor to execute a contract, and the obligee 
 desi<Tuedly supplied inferior flour, so tliat the contract 
 ■was annulled ; it was held, that the obligor was, in 
 equity, entitled to have the bond canceled.^ 
 
 So, too, where defendant guaranteed the payment of 
 gold, with which the plaintiff should supply a goldsmith 
 for the purposes of his trade, and the plaintiff dis- 
 counted bills for the goldsmith, and gave him for them 
 partly gold and partly money, and the gold was applied 
 to the goldsmith's trade, but the goldsmith did not in- 
 dorse the bills, it was held^ that the defendant was not 
 liable, under his guaranty, for the gold so furnished.^ 
 To a similar effect, also, is the w^ell known case of 
 Whitcher v. Hall.^ There a contract was made between 
 A., B. and C, whereby A. agreed to let, and B. agreed 
 to take, the milking of thirty cows, at 7/. 10s. per an- 
 num, from 14tli February, the rent to be paid quarterly 
 in advance, and C. 'agreed to pay or cause to b§ paid 
 the said rent. It was laid down by the court, that, in 
 such a contract, C. was a mere surety, and thdt, in an 
 action against him for the rent, A. was bound to prove 
 a literal performance of the contract on his part, and 
 that any variation made in such a contract by A. and 
 B., without the consent of C, discharges the latter, 
 though his risk is not thereby increased. And it was 
 further held, in this case, that though it appeared that 
 the alterati(5n, as to the mod6 of using the cows, made 
 no substantial difference as to profit or loss, the surety 
 was discharged.* 
 
 ' Blest V. BrowTi, 3 Giff. 450; 8 Jur. ' 5 B. <fe C. 269 ; 8 Dow. <fe Ry. 22. 
 
 N. S. 187 ; 10 W. R. L. C. 569. See also Wright v. Sandars, 3 Jur. N. S. 
 
 =" Evans v. Whyle, 5 Bing. 485. 504. 
 
 * But a surety will not be discharged by u.sury (Mount v. Tappey, 7 
 Bush (Ky.) 617), nor by an agreement to receive a less sunj than that stip-
 
 TflE DISCHARGE OF THE SURETY. 397 
 
 Upon the like principles, also, in Mills v. The Alder- 
 bury Uuion,^ it was decided, that, where a person be- 
 comes surety for another, for moneys to be received by 
 that other, the surety cannot be made liable, unless 
 such other person individually and personally receive 
 the money ; and it has further been decided,'^ that where 
 a person is surety for another, for the due accounting 
 for moneys received by him, he is not liable for the non- 
 payment of money by that person jointly with another. 
 And so, likewise, on the same strict principle, in Philips 
 V. Astling,® it was decided, that, upon a contract to 
 guarantee a bill for a given sum, the. surety is not liable, 
 even to the extent of that given sum, on a bill given for 
 a larger sura. 
 
 Where, however, though there be an apparent varia- 
 tion, there is substantially no variation of the terms of 
 the original agreement, the surety will not be dis- 
 charged. Thus, in Davey v. Phelps,^ the facts were as 
 follow : A surety gave a bond conditioned for the due 
 payment, by M., of all sums in which M. should, from 
 time to time, become indebted to the plaintiffs, for 
 goods supplied to him by them in the course of their 
 business. The plaintiffs having drawn a bill upon M., 
 for coals supplied to him, discounted the bill, which 
 was dishonored. M. went to the plaintiffs, and telling 
 
 ' 3 Exch. 590. don Assurance Company v. Bold, 6 Q. 
 
 '^ Mills V. Alderbury Union, supra; B. 514. 
 Bellairs v. Ebsworth, 3 Camp. 52 ; Lon- '' 2 Taunt. 206. 
 
 * 2 M. & Gr. 300. 
 
 ulated for, when there is no other change in the agreement. Ellis ». Mc- 
 Cormick, 1 Hilton (N. Y.) 313; and see Hunt v. Knox, 34 Miss. 655. As 
 to variation in the subject-matter of the guaranty, see United States v. 
 Corwine, 1 Bond, 339; Grant v. Smith, 46 N. Y. 93; Hanson v. Crawley, 
 41 Ga. 303; Ruble v. Norman, 7 Bush (Ky.) 583; Fasnacht v. Winkel- 
 man, 21 La. An. 727.
 
 398 THE LAW OF GUARANTIES. 
 
 tliem tbat he wanted 80^., to enable bim to take up the 
 bill, asked them to lend him that sum. The plaintifts 
 thereupon gave him a check for 80/., with which, and 
 his own money, he took up the bill. It was held, that 
 this was not, in substance, a loan by the plaintiffs to M. 
 of the 80/., but an advance by them for the specific 
 purpose of taking up the bill, which, as between the 
 plaintiffs and M., remained unpaid to that extent; and 
 that, consequently, as the plaintiffs might have recov- 
 ered the 80/. from M., as for goods sold, the defendant 
 was liable to pay that sum. 
 
 (B) The surety may he discharged hy the creditor 
 talcing additional security from the principal debtor, 
 
 A creditor discharges the surety if he take a further 
 security in lieu of the original security ; or if he take a 
 further security of such a kind and given under such 
 circumstances as to oj^erate as a merger of the original 
 security.^ 
 
 However, a creditor, by taking additional or further 
 security from the principal debtor, does not discharge 
 the surety, tuiless he took it in lieu of the original se- 
 curity,^ or unless the additional security operate as a 
 merger of the original security.^ * 
 
 Whether or not a security was taken in lieu of a 
 
 ' Clarke v. Henty, 3 You. & Coll. Gordon v. Calvert, 4 Russ. 581 ; Eyre 
 
 Exch. Cas. 18Y; Boaler v. Mayor, 19 v. Everett, 2 Russ. 381. 
 C. B. N. S. 76. " Boaler v. Mayor, 19 C. B. N. S. 1& . 
 
 " See Clarke v. Henty, ubi supra ; 
 
 * The merely taking a new security from a debtor witbont agreeing to 
 give him time, will not discharge a surety. Gahn v. Niemcewicz, 11 
 Wend. (N. Y.) 312; affirming s. c. 3 Paige (N. Y.) 614; Elwood v. Dief- 
 cndorf, 5 Barb. (N. Y.) 398 ; Williams v. Townshend, 1 Bosw. (N. Y.) 411 ; 
 and see generally, Hubbell v. Carpenter, 1 Seld. 171 ; Pitts v. Congden, 2 
 Comst. (N. Y.) 352 ; Bangs o. Strong, 7 Hill (N. Y.) 250 ; Fox v. Parker, 44 
 Barb. 541 ; East River Bank v. Kennedy, 9 Bosw. (N. Y.) 543.
 
 THE DISCHARGE OF THE SURETY. 399 
 
 prior one, is, to a great extent, a question of fact. 
 However, where a security was originally given by 
 bond, it was held, that it was not released by the cred- 
 itor subsequently talsing from the principal debtor a 
 promissory note for the amount due, subject to a 
 general understanding, though not in writing, that the 
 giving of the note was not to aftect the bond.^ And, . 
 upon somewhat similar principles, it was decided in 
 Collins V. Owen,^ that a bill for the amount of a guar- 
 anty, given by the principal debtor, and taken by the 
 plaintiff before the ex2:)iration of the time mentioned in 
 the guaranty, but afterwards destroyed in the surety's 
 presence, is no waiver of the guaranty. 
 
 AVhether or not a further security is a merger of one 
 previously taken, is, to a great extent, purely a matter 
 of law. It would seem that there is no merger, if it be 
 expressly stipulated that the additional security shall 
 be collateral only.^ And, at all events, it is quite clear 
 that a security not under seal is not merged in a 
 specialty security, unless the latter be as extensive as 
 the former and between the same parties.* 
 
 (C) The surety^ as a rule, is dischcirged hy tlie dis- 
 charge of the princi])al dehtor, though the general rule is 
 subject to several qualifications. 
 
 Whatever has the effect of discharging the princi^yal 
 debtor, will generally discharge the surety also. In sucli 
 a case the discharge of the principal is an implied dis- 
 charge of the surety.^ * 
 
 ' Wj'ke V. Rogers, 1 De G. M. &. G. ■* Boalcr v. Mayor, siipra. 
 
 408. " See Burke's case, cited 2 B. <fe P. 
 
 M5 L. T. N. S. 327. 62 ; cited 6 Ves. 809 ; and also cited 18 
 
 ' Per Keating, J., in Boaler v. Mayor, Ves. 20. 
 19 C. B. N. S. 76. 
 
 * Any act which discharges the principal debtor discharges also the 
 sureties or co-obligors. Blackburn v. Beall, 21 Md. 308 ; Bro^yu v. Ayer,
 
 400 THE LAW OF GUARANTIES. 
 
 Thus, for example, if a deed of composition with the 
 principal debtor be executed by the creditor, the surety- 
 will be discharged.^ If, indeed, such deed be made 
 with his consent ;^ or if the original instrument of guar- 
 anty provided that composition with the principal 
 should not release the surety ; ^ or if the composition 
 deed contained a reservation of rights against the 
 surety ; ^ then in any of these cases, for reasons which 
 we shall presently see, the surety is not discharged. 
 
 So, again, a surety is discharged if a composition 
 deed, under the bankruptcy act, 1861,^ be executed by 
 the creditor with the principal debtor, unless it expressly 
 reserves the rights of the sureties against the principal 
 debtor.^ And, in such a case, the implied reservation 
 contained in a reserve of the rights of the creditors 
 ao-ainst the sureties is not sufficient." But a deed under 
 sect. 192 of the bankruptcy act, 1861, is valid, although 
 it has no clause reserving rights against sureties, unless 
 it is sbown that there are sureties, a creditor's rights- 
 against whom will be affected by its absence.^ 
 
 Where one of several persons, to whom the defend- 
 ant had given a guaranty, subsequently executed a deed 
 
 ' ^x ;>aWe Glendinnin^, Buct, 517; See also Davidson v. M'Gregor, uhi 
 
 Boultbee v. Stubbs, 18 Ves. 20, and ob- mpra ; Keyles v. Elkins, 5 B. <fe S. 240;. 
 
 servations of Lord Eldon at p. 22 ; Bateson v. Gosling, L. R. 7 C. P, 9. 
 
 Duffy V. Orr, 5 Bligh, K S. 620 ; Ex * Kearsley v. Cole, uhi supra, 
 
 parte Gifford, 6 Yes. 805; Ex parte ' 24 & 25 Vict. c. 134. 
 
 Carstairs, Buck, 560 ; Davidson v. M'- ° Hooper v. Marshall, L. R. 5 C. P. 4. 
 
 Gregor, 6 M. <fe W. 755. ' Ibid. 
 
 " Cowper V. Smith, 4 1^1. <fe W. 519. * Johnson v. Barratt, L. R. 1 Exch. 
 
 ' Kearsley v. Cole. 16 M. <fc W. 128. 65 ; Poole v. Willats,L. R. 4 Q. B. 630. 
 
 24 Geo. 288; -Bridges v. Phillips, 17 Tex. 128 (which holds further, that 
 the converse of the proposition is not true); Farmers' Bank of Amsterdam 
 V. Blair, 44 Barb. 641. So tender will discharge a surety. Cory v. Leon- 
 ard, 1 N. Y. S. C. R. (T. & C.) 394. 
 
 So the cancellation of the bond of an official will discharge the sureties. 
 Lockwood V. Penn, 22 La. An. 29; Way v. Lewis, 115 Mass. 26. 
 
 But part payment of the debt will not discharge him. Emery v. Rich- 
 ardson, 61 Me. 99.
 
 THE DISCHARGE OF THE SURETY. 401 
 
 of assignment of the debtor's property, in the capacity 
 of trustee under such deed, it was held, that as such deed 
 operated as an extinguishment of the debtor's liability, 
 the defendant, as surety for the debtor, was thereby 
 entirely released from the liability under the guaranty.^ * 
 
 But although, as a rule, the discharge of the princi- 
 pal is the discharge of the surety, this is not the case 
 where the discharge does not take place by the volun- 
 tary act of the creditor, f Where the discharge is 
 effected by the operation of laiv, the surety is not there- 
 by released. % Thus, a surety for a bankrupt is not 
 ^discharged by the creditor's signing the bankrupt's 
 certificate, even after notice from the surety not to do so." 
 
 Where, however, the obligee of a surety bond, with- 
 out the consent of the surety, executed a deed by which 
 the principal debtor was released from his debts, " in 
 
 ' Teede v. Johnson, 11 Ex. 840. also Lang-dale f. Parry, 2 Dowl. &, Ry. 
 
 ' Browne v. Carr, 1 Bing. 508. See, 337. 
 
 * And 30 where certain rents were pledged as security for the liability 
 of a surety, and subsequently tlie land from which the reuts arose was con- 
 veyed to the surety in fee simple, it was held that the pledge of the rents 
 merged in the conveyance, and could not be revived for the benefit of other 
 creditors of the grantor. Rankin v. Wilsey, 17 Iowa, 463. 
 
 Where the equity of redemption is bought by the mortgagee, the mort- 
 gage title is merged so tliat the debt is satisfied pro tanto^ as against one 
 who was liable as surety. Wheelwright v. Loomer, 4 Edw, Ch, (N. Y.) 333 ; 
 Loomer v. Wheelwright, 3 Saudf Ch. (N. Y.) 135. . 
 
 f The rule generally recognized, that any act by a creditor discharging 
 his principal will also discharge a surety, will not be taken away by statute 
 (HoUingsworth v. Turner, 44 Ga. 11), but the phrase " from any cause," in 
 a statute providing that the li^ibility of the surety shall cease, when " Irom 
 any cause " the obligation of his principal becomes extinct, means a cause 
 dependent on the act of the creditor, and not one beyond his control, as 
 e. g. his discharge in bankruptcy. Phillips v. Solomon, 43^ Ga. 193. 
 
 X A surety is discharged by operation of law, by confusion or merger of 
 rights, by the statute of limitations, or by the surety's discharge in bank- 
 ruptcy. 3 Bouvier Inst. 71, 73. But a distress for rent is not a satisfac- 
 tion of the debt to discharge a surety. King v^ BJackmore, 73 Penu. 
 St. 347. 
 
 26
 
 402 THE LAW OF GUARANTIES. 
 
 nice manner as if he had ohtained a discharge in haiik- 
 rKpfcf/,"' it was held, tliat, altliougli if the debtor had 
 obtained liis di.scharge in ])ankriiptcy the surety's lia- 
 bibty would have continued, yet, as the release by the 
 obligee was his own act, the surety was discharged.^ *'" 
 
 Moreover, in tlie case of a voluntary discharge of 
 the principal debtor by the act of the creditor, in order 
 to release the surety, there must be an actual legal dis- 
 cliarge of the pi-incipal debtor, and nbt a mere intention 
 or contemplation of releasing him. Consequently, where 
 a debtor and his surety,/;?/ a fraud, to which the debtor 
 was a party, but of which the creditor was innocent,* 
 succeeded in persuading the creditor to release the 
 debtor, it was held, that as no consideration moved from 
 the surety, the release was ineffectual ; and it was further 
 • determined that the creditor was entitled to be restored 
 to his i-ights against the surety.^ 
 
 Again, although, as a general rule, a voluntary dis- 
 charge of the principal discharges the surety also, yet 
 the surety may, by express stipulation in the guaranty, 
 airree to remain liable, even after the dischai-oje of the 
 
 ' Crairoe v. Jones, L. R. 8 Exch. 81 ; " Scholefield v. Templer, 4 De G. <fe 
 
 2*7 L. T. 86. * J. 434. 
 
 * See ante^ page ^19, note *; page 319, note t; page 323, note *; page 
 401, note *. 
 
 A discbarge in bankruptcy releases a surety from liability on a guard- 
 ian's bond within section 19 of the bankrupt act of 1881. On application 
 for such discharge a suret/maj pfove his contingent liability, but if he 
 neglects to do so, and after the discharge pays the surety's debt when due, 
 he has no remedy against the bankrupt. Lipscomb v. Grace, 26 Ark. 231 ; 
 17 Amer. 607. ^ 
 
 Sureties on an attachment bond are released by a ^lischarge in bank- 
 ruptcy ot their principal before a judgment is rendered against him 
 (Boone v. Hall, 7 Bush, 66; 3 Amer. 288), but would not be by a convic- 
 tion and sentence to imprisonment of the principal. Smith v. Barker, 6 
 Watts (Pa.), 508.
 
 THE DISCHARGE OF THE SURETY, 403 
 
 principal debtor. And in tliat case lie is of course not 
 discharged by the discharge of the principal/ since there 
 is then no ground for the presumption that the discharge 
 of the principal was an implied discharge of the surety 
 also.^ 
 
 The consent of the surety to the discharge of the 
 principal debtor will also have the effect of preventing 
 such discharge operating to release the sui'ety. Thus, 
 the surety is not discharged by the execution by the 
 creditor of a composition deed with his assent.^ 
 
 For the effect of a surety consenting to a composi- 
 tion deed ivith a reserve of remedies is not to put him in 
 the same situation as if he had applied to a court of 
 equity to sue in the place of the creditor, and had been 
 permitted to use his name upon payment of the debt 
 into court* Therefore, notwithstanding such consent, 
 the surety may recover from the principal debtor the 
 sum paid by him to the creditor.^ Hence it is that the 
 execution by the creditor of such a deed, if made with 
 his consent, does not discharge the surety. 
 
 Again, it is clear that a mere covenant not to sue 
 the principal debtor, if qualified by a reserve of reme- 
 dies against the surety, will certainly not discharge the 
 latter.^ And if, after executing; a covenant not to sue 
 the principal debtor, the creditor do sue him, such 
 debtor may, it seems, either bring a cross action, on the 
 covenant, against tlie creditor, or may plead the coven- 
 ant by way of equitable defense ; since a court of equity 
 would restrain the creditor from suing the principal 
 debtor, by granting an unconditional injunction. 
 
 ' Cowper V. Smith, 4 M. '& W. 51'.) ; ■* Per Parice, B,, ia Kearsley v. Cole, 
 
 Union B.uik of Mancliester v. Beech, 13 16 M. & \V. 128. 
 
 \V. K. 922. " Ibid. 
 
 ' See Mr. Burke's cise, 2 B. <fe P. 62 ; " Price v. Barker, 4 E. «fe B. 760 ; 
 
 .6 Vesejr, 809 ; 18 Vesey, 20. s. c. 24 L. J. Q. B. 130. 
 
 " Cowper V. Smith, 4 M. &, W. .519.
 
 404 THE LAW OF GUARANTIES. 
 
 Upon similar principles, although an absolute and 
 "unconditional release of the principal debtor discharges 
 the surety, yet where the release contains a proviso, 
 reserving the rights of the creditor against the surety, 
 the surety is not discharged by it. In such a case, the 
 instrument, by the very force of the proviso, is pre- 
 A^ented from being a release and is cut dchvn to a coven- 
 ant not to sue. 
 
 In Gieen v. Wynn,^ Lord Hatherley thus explains 
 this doctrine : ^ " But the authorities say that if, on the 
 one hand, the debtor is released, and, on the other ha^d, 
 all demands against other persons are reserved, then it 
 is inconsistent with the frame and object of the deed to 
 hold that the release is intended to be complete and ab- 
 solute, as that would make the two parts of the deed 
 utterly inconsistent. The release cannot be construed 
 to be absolute, because then no rights would be re- 
 served in any. case, and the courts have, therefore, held 
 that such a release is not to be construed as absolute, 
 hat only as a covenant not to sue. That being so, the 
 remedy is gone, as between the debtor and the creditor, 
 inasmuch as the creditor cannot sue the debtor ; but, 
 as against all other persons, the rights of the creditor 
 are reserved." In accordance with this doctrine, under 
 the following circumstances, a surety was held not to be 
 released : A deed of arrangement under the bankruptcy 
 acts, 1861 and 1869,^ contained a release of the debtor, 
 subject to a proviso reserving the rights of creditors 
 holdincr securities. The Court of Conmion Pleas de- 
 cided that this operated as a covenant not to sue, and 
 
 ' L. R. 4 Cli. A pp. 204-206. &■ J. 438 ; Kearsley v. Cole, 16 M. & W. 
 
 ^ See also Ciirrcy v. Arniitape, cited 128. 
 
 4 C. B. N. S. 221 ; 15atesoti v. Gosling, * 24 <t 25 Vict. c. 134, and 32 & 33 
 
 L. R. 7 C. P. 9; Webb v. Hewitt, 3 K. Vict. c. 77.
 
 THE DISCHARGE OF THE SURETY. 405 
 
 not as an extinguisLraent of tlie debt, so as to bar tlie 
 remedy against tlie surety, notwithstanding the deed 
 contained an absolute assiccnment of all the debtor's 
 property and effects to the trustees, and also provisions 
 for enabling them to carry on the trade for the benefit 
 of the estate.^ 
 
 It seeins, ]>owever, that as a general rule the reserva- 
 tion of rights against the surety, on giving the principal 
 debtor a release, must appear 07i the face of the instru- 
 ment, and that 2)a)-ol evidence of a reservation cannot be 
 given.^ The general rule, however, does not appear to 
 be without exceptions. Thus, in one case, the principal 
 debtor executed an assignment of property for the bene- 
 fit of his creditors, containing a release by the creditors, 
 but no reservation was contained of the creditors' rights 
 against the surety. The creditor executed the deed 
 with the privity of the surety, and on the understand- 
 ing, as shown by the evidence, that his rights against 
 the surety were not to be prejudiced thereby, and under 
 these circumstances it was held, that, even assuming 
 that it was necessary that the reservation of remedies 
 against the surety should appear 07i the face of the deed, 
 at all events the omission of such express reservation 
 did not discharge the surety, as the deed was executed 
 with his consent.^ 
 
 Lastly, it should be noticed that though, as a rule, 
 a release to the j^rincipal debtor is a release to the surety, 
 yet a release given after the surety has made himself a 
 principal debtor for the *amount due has not this effect. 
 This appears to be in analogy with similar cases which 
 have been cited in tw^O previous places. Thus, for in- 
 stance, where the surety has given a security for the 
 
 ' Bateson v. Gosring, L. R. 7 C. P. 9. " Ex parte Harvey, 23 L. J. Bank. 2G. 
 
 ' Cocks V. Nash, 9 Bing. 341.
 
 406 THE LAW OF GUARANTIES. 
 
 debt, the geueral rule will not apply, but the creditor, 
 notwithstanding the release, will, in the absence of evi- 
 dence to the contrary, retain his right against the surety. 
 And this is not affected by the fact that the surety has 
 actually paid part of the debt, and the security is for 
 the balance.-^ 
 
 (D) The discharge of a cosurety 2^erhap$, under some 
 circumstances^ may discharge a surety^ but this is doubt- 
 ful" 
 
 It is doubtful whether the simple discharge of one 
 surety without more, under any circumstances, operates 
 as a discharw. of the other or others.^ It is submitted, 
 that it ought not to do so, for it is settled that the right 
 of contribution is not thereby destroyed ; ^ and, so far 
 as the decisions have gone on the subject, they are in 
 accordance with, and tend to support, the view con- 
 tended for.f Thus, it has been decided that it is com- 
 petent for creditors executing a deed of composition 
 with the principal debtor, and certain of his sureties, 
 to reserve their remedies against other sureties;* and- 
 in the very singular case of a release of one cosurety, 
 with a reserve of remedies against the other, it is settled 
 
 ' Hall V. Hutchons, 3 Myl. & Kee. Evans v. Brernridi?e, 2 K. <k J. 174, 183 ; 
 
 426. Kidiolson v. Keviil, 4 Ad. «fe E. 675. 
 
 * Ex parte Gifford, 6 Ves. 805, 807 ; * Jix parte Gifford, supra. 
 
 Thompson v. Lack, 3 C. B. 540; contra, * Ex parte Carstairs, Buck, 560. 
 
 * When the obligation of the sureties is joiut and several, the dis- 
 charge of one of them does not release the others from payment of tjjeir 
 proper proportion of the claim. Kliugensmith v. Klingensmith, 31 Penn. 
 St. 460 ; Barrow t. Shields, 13 La. An. 57 ; A]ford v. Baxter, 36 Vt. 158 ; 
 and see Remington «. Staats, 1 N. Y, S. C. R. (Thompson & Cook) 
 294. 
 
 And as to the substitution of a surety, see Adams v. Ives, 1 Hun. (8 N. 
 T. S. C.) 457. 
 
 t This was the ruling in Garey v. Hignutt, 32 Md. 552.
 
 TdE DISCHARGE OF THE SURETY. 407 
 
 that the surety is not discharged.^ Such a release would 
 seem to operate as a covenant not to sue.^ 
 
 (E) The surety^ as a rule, and subject to certain ex- 
 ceptions^ is discliarged hy the creditor agreeing to givetiwe 
 to tlie principal debtor. 
 
 If the creditor, without the consent of the surety, 
 enter into a binding agreement with the principal 
 debtor to give him further time for payment, the surety 
 will be discharged both in equity and at law.^ * This 
 is the case, even though no injury could accrue to the 
 surety, for he himself is the fit judge of what is or is 
 
 ' Thompson v. Lack, 3 C. B. 540. Blake v. White, 1 You. & Coll. 620. See 
 
 See also North v. Waketield, 13 Q. B. note (a), p. 515, of 4 B. <fe C. observa- 
 
 536; Cheethaiu v. Ward, 1 B. & P. 630 ; tioiis of Lord Eldon, in Hawkshaw v. 
 
 Soil}' V. Forbes, 2 Br. <fe B. 38. Parkins, 2 Swanst. 539, 546. Observa- 
 
 '^ Willis V. De Castro, 4 C. B. N. S. tions of Lord Tindal, C. J., in Browne v. 
 
 216 ; 27 L. J. C. P. 243. Carr, 7 Bino^. 508, 515 ; Bailey v. Ed- 
 
 ^ Combe i;. Woulfe, 1 M. A Scott, wards, 4 B. & S. 761. See also'Eng-lish 
 
 241 ; SBi^g. 156; Observations of Lord v. Darley, 2 B. & P. 61 ; Moss v. Hall, 
 
 Hatherley, L. C, in Oriental Financial 5 Exch. 46 ; Oakeley v. Pashaller, 10 
 
 Corporation v. Overend, Gurney & Co. Bli. N. S. 548; Isaac v. Daniel, 8 Q. B. 
 
 L. R. 7 Ch. App. 150; Samuel v. 500; Davies «. Stainbank, 6 De G. M. A 
 
 Ilowarth, 3 Mer. 272; Newton v. Chorl- G. 670; Pooley v. Harradine, 7 E. & B. 
 
 ton, 2 Drew. 333, 338; Wright w. Simp- 431; Bank of Ireland v. Beresford, 6 
 
 son, 6 Ves. 714, 734; IS'isbet v. Smith, 2 Dow. 283 ; Eyre v. Barthrop, 3 Madd. 
 
 Brown C. C. 578, and note (a), 583; 224; Howell v. Jones, 1 C. M. <fe R. 97 ; 
 
 Rees i'. Berrington, 2 Ves. jun. 539, a; Greenougli w. M'Clellaud, 2 Ell. A Ell. 
 
 Clarke V. Heuty, 3 You. & Coll, 187; 426. 
 
 * An agreement to give time, founded upon no consideration, will not 
 discharge the surety. Zane v. Kennedy, 73 Penn. St. 188 ; State v. Man- 
 ning, 55 Mo. 142 ; Liebrandt v. Myron Lodge, 61 111. 81 ; Barnes v. Cran- 
 dall, 11 La. An. 19 ; Jarvis v. Hyatt, 43 Ind. 163 ; Siimeyer ®. Schaffer, 60 
 111. 479. And if such an extension as will release him has been given 
 without his knowledge, and the surety in ignorance thereof, again promise 
 to pay his principal's debt, such subsequent promise will not bind the 
 surety. Montgomery v. Hamilton, 43 Ind. 451. Such a contract ^r ex- 
 tension of time may be implied by law — as where the debtor has accepted 
 interest in advance, the law will imply an extension of time for the inter- 
 val covered by such interest. Jarvis v. Hyatt, 43 Ind. 163 ; Hamilton v. 
 Winterrowd, Id. 401 ; Morgan v. Coifman, 8 La. An. 56; Peacock v. Chap- 
 man, Id. 87; Deuill v. Martel, 10 La. An. 643; see, however, Hayes v. 
 Wells, 34 Md. 512 ; Hunt v. Roberts, 45 N. Y. 691 ; Bowen v. Parbey, 14 
 Fla. 202; Howard «. Clark, 36 Iowa, 270; Chickasan v. Pitcher, Id. 593, 
 and cases cited in note *, page 432.
 
 408 THE LAW OF GUARANTIES. 
 
 not for Lis own benefit,^ * It is not, however, every 
 agreement or promise made by the creditor which will 
 liave the effect of discharging the surety. 
 
 In the first place, an agreement by the creditor to 
 give time to the principal debtor will not discharge the 
 surety, either at law or in equity, unless it be of a 
 hindlng character, and unless made on valuable consid- 
 eration.'^ f Thus, where a creditor knew that a surety 
 
 * Samuel v. Howarth, 3 Mer. 272. 61, C2. See also London Assurance Co. 
 
 See also per Lord Chancellor Eldon, in v. Buckle, 4 B. Moore, 153; Philpot v. 
 
 Ex j»a>'<« Glendinning, Buck, .517, 519; Briant, 4 Bing. 717; Clarke v. Wilson, 
 
 in Exparte Gifford, 6 Ves. 805. 806, and 3 M. & W. 210; Badenall v. Samuel, 3 
 
 in Ex parte Wilson, 11 Ves. 410. Per Price, 521 ; Brickwood v. Ann;?, 5 
 
 Lord Langdale, M. R., in Calvert I'. The Taunt. 614. Observations of Pollock, 
 
 London Dock Co. 2 Keen, 638,644; C. B., and Channell, B., in Price v. Kirk- 
 
 Bkst V. Brown, 8 Jur. 603. But see ham, 3 H. <fe C. 437 ; Smith v. Winter, 
 
 Newton v. Chorlton, 2 Drew. 333, 339. 4 M. & W. 454; Tucker v. Laing, 2 K. 
 
 And see Petty v. Cooke, L. R. 6 Q.B. <fe J. 745 ; Petty v. Cooke, 40 L. J. Q. 
 
 790,795. B. 281; L. R. 6 Q. B. 790; Bell v. 
 
 " Blake v. White, 1 Y. & C. 620; Banks, 3 M. & G. 258; Arundel Bank v. 
 
 Heath v. Key, 1 Y. & J. 434. Ter Lord Lobbe, Chitty on Bills, p. 2961 
 Eldon, in English v. Darley, 2 B. & P. 
 
 * See note t, page 385. 
 
 t Mere forbearance will not operate to discharge tlie surety, unless 
 there be some agreement upon consideration, which would prevent the 
 creditor from suing. Hunt v. Knos, 34 Miss. (5 George) 655 ; Kirby v. 
 Studebaker, 15 Ind. 45 ; McMullen v. Hinkle, 39 Miss. 142; Oberndorf v. 
 Union Bank of Baltimore, 31 Md. 126 ; 1 Amer. * ; Rucker v. Robinson, 
 38 Mo. 154 ; McCune v. Belt, 86 Mo. 181. But a giving of time to the 
 debtor will disdliarge the surety. Blazer v. Bundy, 15 Ohio St. 57; 
 Brookline v. Shumway, 18 Wis. 98; Albany Ins. Co. v. Devendorf, 43 
 Barb. 444 ; Pilgrim v. Dykes, 24 Tex. 383 ; People's Bank v. Pearsons, 30 
 Vt. 711; Draper i;. Trescott, 29 Barb. (N. Y.) 401, &c.; Clippenger v. 
 Creps, 2 Watts (Pa.) 45 ; Bank v. Woodward, 5 N. H. 99 ; Bank v. Hoge, 
 6 Ohio, 17 ; Kennebec Bank v. Tuckerman, 5 Me. 130 ; Cunninghajn v. 
 Wren, «3 111. 64 ; King v. Baldwin, 2 Johns. Ch. (K Y.) 529 ; Cok^ v. 
 Smith, 2 Serg. & R. (Pa.) 113; and see Sailly v. Ellmore, 2 Paige Ch. (N. 
 Y.) 496; Baird v. Rice, 1 Call. (Va.) 18; Ellis v. Bibb, 3 Ala. 63: Hunt v. 
 United States, 1 Gall. C. C. 32 ; Hunt v. Bridgham, 12 Pick. (Mass.) 581 ; 
 Naylor v. Moody, 3 Black. (Ind.) 93 ; Miller v. Stein, 2 Penn. St. 286 ; 
 Parnell v. Price, 3 Rich, S. C. 121 ; Waters r, Simpson, 7 Dl. 570 ; United 
 States ». Hodge, 6 How. 279; Home v. Bodwell, 5 Gray (Mass.) 457; 
 Humphreys r. Crane, 5 Cal. 178 ; Richards v. Commonwealth, 40 Penn St. 
 146 ; Hunt v. Knox, 84 Miss. 365.
 
 THE DISCHARGE OF THE SURETY. 409 
 
 was negotiating a loan for the principal debtor, for the 
 purpose of paying off therewith the debt for which the 
 surety was liable, and thus getting rid of such liability, 
 and the creditor made a promise to the debtor, without 
 consideration, to give him further time, and this in- 
 duced the surety to desist from his attempt to raise the 
 money ; it was held, that the surety's liability to the 
 creditor was not discharged.^ * 
 
 An agreement, by a surety, to give time to his prin- 
 cipal, may, however, in some cases, be binding, whether 
 it be written or verbal. Formerly, indeed, where the 
 guaranty was under seal, if time were given to the prin- 
 cipal debtor, by parol agreement, the surety could not 
 set up such parol agreement as a defense at law,'^ but 
 was obliged to resort to a court of equity for relief; for, 
 at law, an instrument can only be dissolved by one of 
 equal or superior force.^ Now, however, by virtue of 
 17 & 18 Vict. c. 125, s. 83, such an agreement might be 
 pleaded to an action by way of equitable defense,* 
 though, of course, the surety is still at libei'ty to resort 
 to a court of equity for relief 
 
 ' Tucker v. Laing, 1 K. <fe J. '745. ' Davey v. Prendergrasg, supra. 
 
 ' Davey v. Prendergrass, 5 B. »fe Aid. * Per Cur., in Woodhouse v. Faro- 
 
 187 Per Lord Abinger, C. B., in Blake brother, 5 E. cfe B. 2ll, 289. 
 V. White, 1 Y. <fe C. 420, 425. 
 
 * So when a creditor received a check, -witli the understanding that 
 the debtor, who drew the check, had no funds in the bank to meet it — 
 but would have, in two or three days — it was held that this was not 
 such a giving of time as would discharge the surety. Bordelon v. Wey- 
 mouth, 14 La. An. 93. And where a transaction would otherwise have 
 this effect of releasing a sui-ety, it will not, either at lasv or equity, if the 
 remedy against the surety is expressly reserved. See also, as to considera- 
 tion, Lowman v. Yates, 37 N. Y. GOl ; e. c. 3 Trans. App. 320; Smith v. 
 Townshend, 25 K Y. 479 ; Piatt v. Stark, 2 Hilt. (K Y.) 399. As to 
 usurious, see Draper r\ Trescott, 29 Barb. 401. Part payment of a debt over- 
 due is not such a consideration for a promise to extend time as will dis- 
 charge sureties. Halliday v. Hart, 30 N. Y. 474.
 
 410 THE LAW OF GUARANTIES. 
 
 An agreement to give time need not, liowever, Ije 
 made in ex2:)ress words, in order to have the effect of 
 discharging the surety. If an agreement, in effect, be a 
 gwing of time by an implied agreement, it will operate 
 to relieve the suretyshi]). Thus, for instance, wliere a 
 bond creditor, by agreement with his debtor, takes in- 
 terest by anticipation on his deljt, a court of equity will 
 restrain an action on the bond, whether brought against 
 the principal oi' the surety.^ For such an asfreement 
 amounts to an agreement to give time, as, by taking in- 
 terest, the creditor would be prevented from suing on 
 the bond. 
 
 Since, in order to discharge the surety, there must 
 be a binding agreement by the creditor to give him 
 time, it follows that mere 'passive inactivity^ or omission 
 1^0 press the debtor, as distinguished from an agreement 
 giving further time, will not discharge the surety,^ ^' even 
 when the debtor has beome insolvent during the time 
 
 ' Blake v. White, 1 You. &, Coll. 6'20. W. R. (P. C.) 8Y1 ; Dawson v. Lawes, 1 
 
 'Trent Navigation Co. v. Harlev, 10 Kay, 230; M'Taggavt v. Watson, 3 CI. 
 
 East, 34. Per Gibb^ C J., in Orine v. & Fin. 525. Pei^Lord Eldon, in Samuel 
 
 Young. Holt N. P. C. 84 ; London As- v. Howarth, 8 Mer. 272, 278 ; Perfect v. 
 
 surance Co. v. Buclcle, 4 E. M. 153; Gor- Muf^grave, 6 Price, 111. Per Lord Cot- 
 
 ing V. Edwards, 6 l^ing. 94 ; Peel v. Tat- tenhV;m, in Creigliton v. Rankin, 7 CI. & 
 
 lock, 1 B. <fc P. 419. Per Jervis, C. J., Fin. 325, 34fi, 347; Shepherd v. Beech- 
 
 in Strong r. Foster, 17 C. B. 201, 215. er, 2 P. \V. 268. Per Lord Eldou, in 
 
 J'er Lord Eldon, in Mayhew v. Crickett, Wright v. Simpson, 6 Ves. 714, 734. 
 
 2 Swanst. 185 ; Boultbee v. Stubbs, 18 Per i'ollock, C. B., in Price v. Kirkham, 
 
 Yes. 20, 22; Eyre v. Everett, 2 Rnss. 3 H. & C. 437, 441. 
 381; Black v. The Ottoman Bank, 10 
 
 * Mere delay, unaccompanied by a definite extension of time, under 
 contract and for consideration, will not amount to such lacLes on the 
 creditor's part {ride note f, p. 408) as to discharge the sureties. Menifee 
 t. Clark, 35 Ind. 3(4; Hunt v. Postkwait, 28 Iowa, 427; Davis v. Graham, 
 29 Id. 514; Galbraith v. Fullerton, 53 111. 126 ; Pittsburg &c. R. Pt. Co. r. 
 Shaeffer, 59 Penn. St. 35 ; Pierce t. Goldsberry, 31 Ind. 52 ; Wakefield 
 Bank t. Truesdell, 55 Barb. (N. Y.) 602; Preston v. Henning, 6 Bush (Ky.) 
 556 ; Bridges v. Winters, 42 Miss. 135 ; Buckalew v. Smith, 44 Ala. 638; 
 Pitman t. Chisholm, 43 Ga. 442; Hayes t. Wells, C4 Md. 512; Dei;l f. 
 Cochran, 66 K C. C69.
 
 THE DISCHARGE OF THE SURETY. 411 
 
 thus suffered to elapse.^ t Tlie surety may, however, 
 as we have seeu,^ stipuhite, in his contract, that the 
 creditor is not to sue hiiii until after failure of the cred- 
 itor's utmost efforts against the principal debtor, and, in 
 such a case, of course, mere passive inactivity, on the 
 part of the creditor, would disharge the surety.^ f 
 
 ' Trent Navigation Co. v. Harloy, ubi Watson v. Alcock, 22 L. J. Ch. 858 ; 
 
 supra. Montao-ue v. Tidcombe, 2 Vern. 518. 
 
 " See ante. p. 210. But see Musket v. Rogers, 5 Bing* N. C. 
 
 ' Holl V. Hadley, 2 A. <fe E. '758 i 728. 
 
 * So in Remsea v. Graves, 41 IST. Y. 474, the taking, by the plaintiff, of 
 another bond, at a higher rate of interest, as collateral security to the 
 original, and having a longer time to run, and the receipt of interest on 
 such new bond does not release the defendant on his guaranty, although 
 it appeared that the principal debtor became insolvent subsequent to the 
 taking of the new bond. 
 
 t See, Iiowcver, Barhy.lt v. Ellis, 45 K Y. 107, whare it was held, that 
 when, by the laches of the creditor, the surety's means of indemnity are 
 impaired, his liability is discharged only to the extent of the loss sus- 
 tained by reason of the laches. 
 
 Mere delay to sue a principal, however long continued, does not dis- 
 charge the surety. Williams v. Townsheud, 1 Bosw. (N. Y.) 411 ; Hunters. 
 Clark, 28 Tex. 159; People v. Jansey, 7 Johns (X. Y.) 333; King v. Bald- 
 win, 3 Johus. Ch. (K Y.) 554: Kirby v. Studabaker, 15 Ind. 45; Pain v. 
 Packard, 13 Jolms. (N. Y.) 17-4 ; Powell v. Waters, 1? Id. 176; Goldsmith 
 V. Brown, 33^ Barb. (N. Y.) 484; Dorlon «. Christie, 39 Id. 010 ; Thomp- 
 son V. Hall, 45 Id. 314 ; Hunt v. Knox, 34 Miss. G55 ; Richards v. Common- 
 Avealth, 40 Peun. St. 146. 
 
 But the neglect of a creditor to sue wJi-eii requested hy the surety, dis- 
 charges the surety, irrespective of any knowledge o^n the part of the cred- 
 itor, or notice to him of any facts suggesting the probability that delay 
 would prove injurious to the surety. Kaufman v. Wilson, 29 Ind. 504 ; 
 Taylor v. Davis, 38 Miss. 493; Remsen v. Beekman, 25 N. Y. 553; Ranney 
 v. Purvis, 38 Miss. 499 ; Cain v. Bates, 35 Mo. 437 ; Singer ». Troutmau, 
 49 Barb. (N. Y.) 183; Simpson t. Blount, 43 Mo. 513. A request maJe by 
 sureties to a creditor, to enforce securities held by the latter from their 
 principal, does not impose upon the creditor the absolute duty of enforc- 
 ing such securities without delay ; but if the creditor, in bad faith, un- 
 reasonably neglects or delays, or is grossly negligent, whereby the value 
 of the securities is impaired, the loss occasioned is a defense available to 
 that extent by the sureties. Black River Bank v. Page, 44 N. Y. 453 ; and
 
 412 THE LAW OF GUARANTIES. 
 
 « 
 
 Again, since it will not discbarge the surety unless 
 it be a hinding agreement, it also follows that, if an 
 agreement be made to give time to the princi])al debtor, 
 but such agreement never take effect, the surety is not 
 discharged. Thus, for instance, if such agreement l)e 
 conditional on the performance of some act by the prin- 
 cipal debtor, which the latter omits to perform, as the 
 operation of the agreement is wholly prevented, the 
 surely is not discharged.^ Moreover, in the case of a 
 conti7uiing guaranty for the price of goods to be sup- 
 plied to a person at a specified credit, if goods are sup- 
 plied at a longer credit than that stipulated for by the 
 
 ' Vernon v. Turley, 1 M. <t W. S16 ; Badcock v. Samuel, 3 Price, 521. See 
 
 also Price v. Edmonds, 10 B. & C. 578. 
 
 see Hayes v. Ward, 4 John3. Ch. (TST. T.) 123; Herrick v. Borst, 4 Hill (N. 
 Y.) 650. 
 
 As to what coustitutes a request will depend upon circumstances. A 
 request, that a creditor should "push" the debtor, and "keep pushing 
 him,''' was held, in Singer v. Troutman, 49 Barb. (N. Y.) 182, not to amount 
 to a request to prosecute or collect. 
 
 The loss of another security, in consequence of the mere passiveness of 
 the creditor, as for example, his failure to record a mortgage, will not 
 discharge the surety, the latter not having requested such action. Phill- 
 brooks V. McEwen, 29 Ind, 347. But see, as per contra, Toomfer i\ Dicker- 
 son, 37 Ga. 428; Hampton «. Levy, 1 McCord Ch. (S. C.) 107; Long v. 
 Brevard, 3 Strobe Eq. 59. 
 
 A surety is entitled to the benefit of all the securities in the hands of 
 creditor; and where the creditor has the means of satisfaction in his pos- 
 session, or under his control, and neglects to retain or use them, the 
 surety is discharged. Richards v. Commonwealth, 40 Penn. St. 146 ; Suc- 
 cession of Pratt, 16 La. An. 357 ; Kennedy v. Bossiere, Id. 445. 
 
 As to the effect of uuexcused delay on the part of the creditor gener- 
 ally, see Boyd v. Titzcr, 6 Coldw. (Tenn.) 568 ; Remsen v. Beekman, 25 N. 
 Y. 552; Wintersmith ». Tabor, 5 Bush. 105. 
 
 In Kentucky, the release of a surety under section 11 of 2 R. S. c. 
 97, in case of a failure to issue execution on the bond within one year, &c., 
 has been held ndt to apf)ly to judicial bonds, the collection of which is 
 controlled by the court Rankin t;. White, 3 Bush (Ky.) 545; Barbee », 
 Pittman, Id. 259.
 
 THE DISCUARGE OF THE SURETY. 413 
 
 surety, and these goods are subsequently paid for, and 
 afterwards other goods are supplied a* tlie specified 
 credit^ and are not paid for by the f)rincipal debtor, the 
 surety is liable for this default.^ 
 
 In the next place, in order to have the effect of dis- 
 charging the surety, it is»necessary that the agreement 
 should be made with the principal debtor himself, and 
 not with a mere stranger. An agreement made by the 
 creditor loith a strangei^to give time to the principal 
 debtor, even thouo-h it be bindino;, and made for a valu- 
 able consideration, does not operate as a discharge of 
 the surety.^ 
 
 Lastly, in order to have the eifect of discharging the 
 surety, the agreement with the principal debtor must be 
 an ao-reeinent to give time to him. If there be no erivino- 
 of time the surety is not discharged. "^ Thus, under the 
 * following circumstances, it was held, that there had in 
 reality been no giving of time, and therefore no dis- 
 charge of sureties. Certain sureties, by the terms of 
 their contract, were not to be liable till demand made 
 on them. The creditors, when a balance was due to 
 them from the principal debtors, took from the latter, 
 without consulting the sureties, a warrant of attorney 
 for the amount due, with a stay of execution f if they 
 should discharge the debt by instalments of 100^. a 
 month, and, on default, execution was to issue for the 
 whole: It was held, that the warrant of attorney cer- 
 
 ' Bingham v. Corbett, 34 L. J. Q. B. 288. See also Lyon v. Holt, 5 M. & W. 
 37. 250. 
 
 ' Fraser v. Jordan, 26 L. J. Q, B. 
 
 * Barhydt ®. Ellis, 45 N. Y. 107 ; Bordelon v. Weymouth, 14 La. An. 93. 
 
 t K a creditor takes out execution against the principal in a judgment, 
 and then waives it, and causes it to be returned unsatisfied, the security 
 will be thereby discharged. Jenkins v. McXeese, 34 Tex. 189.
 
 4:14: THE LAW OF GUARA]STIES. 
 
 tainly gave time, whicli miglit Lave discharged the 
 sureties if they had been affected by it ; but that here 
 the sureties' liabilitj', not arising till demmid, and, pre- 
 vious to the demand, default having been actually made 
 by tlie debtors, so that execution might have instantly 
 issued foi* the whole debt, the«agreement made by the 
 warrant of attorney was at an end, and the sureties 
 were no ways injured, as there was nothing to interfere 
 with their immediate recourse to the principal debtors.-^ 
 
 What is a "giving time" was defined by the Court 
 of Exchequer, in the case of Howell v. Jones,^ in the fol- 
 lowino; terms : 
 
 " We think it means extending the period at which, 
 by the contract between them, the principal debtor was 
 originally liable to pay the creditor, and extending it by 
 a new and valid contract between the creditor and the 
 principal debtor, to which the surety does not assent.'^ 
 In this case a guaranty was given by the defendant to 
 the plaintiff, who was a banker, by which the defend- 
 ant became responsible for the amount of such checl<:s 
 one Bowers might from time to time draw on the 
 plaintiff. It was contended by the plaintiff that the 
 defendant, as surety, was not dischai-ged, though the 
 plaintiff had on one occasion taken Bowers' acceptance 
 for the amount of his balance, inasmuch as, in taking 
 such acceptance, the creditor was only dealing with the 
 principal debtor on the original terms of the (Contract 
 between them. Bolland, B., in delivering the judgment 
 of the court, said : " If, however, the creditor continues 
 to deal with the principal debtor on the original terms 
 of the contract between them, he cannot, we think, by 
 
 'Prcndergastw. Devey. 6Ma(1d. 124, 532 ; Whitfield r. Hodges, 1 M. <fe W 
 126. See also Price v. Edmonds, 10 B. 699. 
 & C. 578; Jay v. Warren, 1 C. & P. M Cr. M. <fe R. 97, 107.
 
 THE. DISCHARGE OF THE SURETY. . 415 
 
 any lenc^tb of credit wliicli lie so gives, be properly said 
 to give time to the debtor. The time must be given as 
 an extension of the original credit. If, therefore, it could 
 be shown, in fact, that the taking the three months' bill 
 in this case in February, 1828, from the principal debtor 
 was })ai't of the original contract between the bankers 
 and Bowel's, for which the defendant became the o-uar- 
 anty, there would be much force in the arguments ad- 
 dressed to the court oii the part of the plaintiffs, that 
 the defendant was bound to know the nature of the 
 contract which he guaranteed, and that the course of 
 dealing between the bankers and Bowers might be 
 properly referred to for that purpose. But, giving them 
 the full benefit of the argument, it is disposed of by the 
 facts of the case." And accordingly the court on these 
 facts held that the defendant was discharged. 
 
 Although the general meaning of the expression 
 "giving time" is thus defined, it is nevertheless some- 
 times difficult to say what really was "the period at 
 which, by the contract between them, the principal 
 debtor was originally liable' to pay the creditor." This 
 sometimes has to be ascertained from the terms of the 
 ori2:inal contract beeween them. And in such cases the 
 words used must receive a reasonaMe interpretation. 
 Thus, in Simpson v. Manley,-^ a guaranty ran as follows : 
 "If you give A. B. credit we will be responsible that 
 his payments shall be regularly made." The question 
 having arisen whether there had been a giving of time 
 to A. B., it became necessary to decide when A. B. was, 
 under these terms, bound to pay the ci'editor. The 
 court held, that the word " credit " meant a fair and 
 reasonable credit according to the manner in which A. 
 
 . ' 2 C. & J. 12.
 
 41G THE LA.W OF GUARANTIES. 
 
 B. and the persons guaranteed should deal, and did not 
 confine the guaranty to dealings according to the strict 
 customary credit of the trade. 
 
 In other cases, again, the period at which the debtor 
 l)ecoraes liable to pay is not indicated by any express 
 ao-reement between them on the point. And in such 
 cases the time at which the debtor becomes liable to 
 pay is the time at which legal liability accrues.* Ac- 
 cordingly custom of trade would not apparently justify 
 indulgence to the principal debtor.^ Thus, evidence 
 that, according to tlie custom of the trade^ the plaintiffs 
 delivered coals to N. H. daily, and that at the end of 
 every mouth he gave a bill payable in two months, was 
 held not sufficient to charge the defendant upon a guar- 
 anty for the payment of coals to be delivered to N. H. 
 at a credit of two months from the delivery.' On the 
 part of the defendant it w\as contended, that this was a 
 dealing at variance with the express language of the 
 guaranty, which was for a credit of two months from 
 the delivery. On the part of the plaintiffs it was urged, 
 that the delivery, being according to the custom of the 
 coal trade, which must have been in the contemplation 
 of the parties at the time the guaranty was executed, 
 the whole supply of coals for each month must be con- 
 sidered as delivered on the last day of the month, which 
 was a delivery within the terms of the guaranty. The 
 plaintiffs, however, were nonsuited," and a rule to set the 
 nonsuit aside was discharged. 
 
 ' Combe v. Wolfe, 8 Bing. 156 ; IIoll ^ IIoll v. Hadlcy, uhi supra. 
 
 V. nadley, 5 Bing. 54. 
 
 * As a general rule, the guarantor is not entitled to demand a notice 
 of nonpayment where an absolute guaranty has been entered into, Dick- 
 erson v. Derrickson, 39 111. 574 ; Voltz v. Harris, 40 111. 155 ; Bowman v. 
 Curd, 3 Bush (Ky.) 565.
 
 THE DISCHARGE OF THE SURETY. 417 
 
 Where time has been given to the principal debtor, 
 the surety is, at any rate in equity, released, and a de- 
 fense is given to him, even tliougli it does not appear 
 that the creditor knew that lie was giving time to the 
 principal debtor.* 
 
 It seems doubtful whether, in order to enable a 
 surety to raise at law a defense, on the ground that 
 time has been given to the principal, it is necessary to 
 show that the original contract between the plaintiff 
 and the defendant was that of creditor and surety.^ f 
 It has, however, been recently decided in equity, that 
 the holder of a security is, in dealing with the security, 
 affected by knowledge acquired after taking the security, 
 as to which of the parties liable on the security is the 
 principal, and which is the surety.^ 
 
 In ec^uity, the defendant's right to relief arises from 
 the existence of the relation of principal and surety, 
 between the surety and the principal debtor, and from 
 the creditor's knowledge thereof at the time he took 
 the security; and the fact that the creditor did not 
 agree to treat the surety as a surety, does not debar the 
 latter from such relief, and such knowledge may be 
 stated in an equitable plea.^ 
 
 It may, however, happen that all these three recj^ui- 
 sites to his discharge may exist, that is to say ; that 
 
 ' Manley v. Boycott, 2 Ell. & Bl. 46 ; ' Oriental Financial Corporation v. 
 
 Strong V. Foster, \1 C. B. 201 ; Bailey Overend & Co., L R. V Cb. App. 142. 
 
 V. Edwards, 4 B. & S. 761, and cases ^ Greenough v. M'Clellaud, 2 Ell. &, 
 
 there cited; Lawrence i'. Walmsley, 12 Ell. 424 
 C. B. N. S. 799, 807. See also Taylor v. 
 Burgess, 5 H. & N. 1. 
 
 * But the judgment will be against the principal debtor, Haynes v. 
 Lilly, cases in S. C. of Newfoundland, 115. 
 
 t See Agnew v. Merritt, 10 Min. 308 ; Remsen v. Graves, 41 N. Y. 471 ; 
 Mason v. Eckford's Ex'rs, 15 N. Y. 502 ; Erwin v. Downs, Id. 575 ; Mc- 
 Laughlin V. McGovern, 34 Barb. 308 ; Zabriskie v. C. C. & C. R. R. Co. 33 
 How. (U. S.) 399 ; Coggill v. Am. Exchange Bank, 1 K Y. 113. 
 37
 
 41S THE LAW OF GUARANTIES. 
 
 there may be a bindiug agreement; that it is an agree- 
 ment made with the principal debtor himself; and that 
 it is an agreement to give time ; and yet that the surety 
 is not discharged. For there are certain cases in which, 
 although all these three requisites exist, it is held, that 
 the surety cannot possibly be affected and is not dis- 
 charsjed from his eno'a2;einent. One instance, and 
 perhaps the most common instance, of this is, where an 
 agreement giving time to the principal debtor is expressly 
 made with a reserve of remedies against the surety. For 
 such a reservation prevents there being any discharge 
 of the surety.^ The reason for this is, first^ because it 
 rebuts the implication that the surety was meant to be 
 discharged, w^hich is one of the reasons why the surety 
 is ordinaiily exonerated by such a transaction; and, 
 secondly^ because it prevents the rights of the surety 
 against the debtor being impaired, the injury to such 
 rights being the other reason why, in ordinary cases, 
 the surety is discharged. For the debtor cannot com- 
 plain if, the instant afterwards, the surety enforces those 
 rights against him ; and his consent that the creditor 
 shall have recourse against the surety,' is impliedly a 
 consent that the surety shall have recourse against him.^ 
 And a creditor may, upon giving time to his debtor, 
 reserve any right against the ^rety without communi- 
 cating the arrangement to the surety.^ 
 
 In order to keep alive the liability of the surety it 
 must, however, as a rule, appear on the face of the in- 
 strument giving time, that the rights of the surety are 
 reserved.* Still, it seems that this is not always neces- 
 
 * Per Parke, B., in Kearsley v. Cole, Owen?;. Homan,4H. L. Gas 997, lOSV; 
 
 16 M. <fe W. 128. Per Lord Chancellor Close v. Close, 4 De G. M. <fe G. 176. 
 
 Eldon, in Ex parte Glcndinning, Buck, * Webb v. Hewitt, 3 K. <fe J. 438. 
 
 517,619; Wyke i'. Rogers, 1 D. M. & Mbid. ; Kearsley v. Cole, 16 M. & 
 
 G. 4(j8 ; Boalcr v. Mayor, 19 C. B. N. S. Vv^ 128. 
 
 76, 83, 84 ; a. c. 13 W. R. 775 ; J^.z parte * Ex parte Glendinning, Buck, 517, 
 
 Gifford, 6 Ves. 80o, 808. See also 520. See also Boultbce v. Stubbs, 18 
 
 Ves. 20, 22.
 
 THE DISCHARGE OF THE SURETY. 419 
 
 sary and that, sometimes, such a reservation may be 
 proved by parol evidence,^ Certainly it may be proved 
 hy parol evidence^ that there was a general understand- 
 ing between the creditor and the princi]3al debtor, that 
 the taking of a promissory note should not discharge 
 the surety.^ 
 
 Another instance in which, although there is a bind- 
 ing agreement with the debtor to give him time, the 
 surety is, nevertheless, not discharged, may also be men- 
 tioned. This is the case where the effect of the aOTee- 
 ment between the creditor and the principal debtor is 
 to accelerate the surety's remedies.* Obviously, as^ 
 agaiust the surety, this does not auiount to an agree- 
 ment giving time.'^ Indeed, besides the cases which 
 have been mentioned, it has been laid down as a gen- 
 eral rule, governing all questions of this kind, that a 
 surety is not discharged if his remedies are not inter- 
 fered wdth ; * if the agreement is made with his assent ; ^ 
 or if he subsequently confirms it.^ f 
 
 ' Per Lord Justice Turner, in Ex ' Clerk v. Devlin, 3 B. <fe P. 363 ; 
 
 parte Harvey, 33 L. J. Bank. 2«, 32. Smitli v. Winter, 4 M. & W. 454 ; Tjt- 
 
 And see note (a), 4 B. & C. 515, 516. son v. Cox, 1 T. <fe R. 395; Cowper v. 
 
 ^ Wyke V. Rogers, 21 L. J.Ch. 611 ; Smith, 4 M.'tfe W. 519; Union Bank of 
 
 1 De G. M. &, G. 408. Manchester w. Beech, 13 W. R. 922. 
 
 = Hulme V. Coles, 2 Sim. 12. ' Per Lord Chancellor Eldon, in 
 
 * Per Blackburn, J.,, in Petty v. Mayhew v. Crickett, 2 Swanst. 185, 192. 
 Cooke, L. R. 6 Q. B. 790, 795. 
 
 * And so it has been repeatedly held in the United States, that the tak- 
 ing a new security from a debtor, does not discharge a surety. Gahn v. 
 Niemccwicz, 11 Wend. (N. Y.) 313; affi'g s. c. 3 Paige, N. Y. 614; El- 
 wood v. Diefendorf, 5 Barb. (N. Y.) 398; East River Bank v. Kennedy, 9 
 Bosw. (N. Y.) 543 ; Williams v. Townsend, 1 Id. 411 ; Hubbell v Carpenter, 
 1 Seld. (N. Y.) 171 ; Pitts v. Congdon, 2 Comst. 352; Bangs v. Strong, 7 
 Hill (N. Y.) 250; Fox v. Parker, 44 Barb. (N. Y.) 541. 
 
 t Wright V. Storrs, 6 Bosw. GOO ; affi'd 32 N. Y. 691 ; Lowman v. Yates, 
 37 N. Y. 601 ; s. c. 3 Trans. App. (N. Y.) 320 ; Halliday v. Hart, 30 N. Y. 
 474; Smith v. Townsend, 25 N. Y. 479; Alden v. Clark, 11 How. 209; 
 Henderson v. Marvin, 31 Barb. 297 ; s. c. 11 Abb. 142 ; Fox v. Parker, 44
 
 420 THE LAW OF GUARANTIES. 
 
 Neither does an agreement made with the principal 
 debtor, after the surety has liimself become a principal 
 debtor and subject to a primary liability, discharge the 
 surety. Thus, after a decree in equity has been ob- 
 tained by the creditor against the surety, no arrange- 
 ment giving time to the principal debtor, without the 
 knowledge of the surety, will discharge the latter.^ The 
 creditor " having by the decree established his right 
 against the estate of the surety, has a right to proceed 
 under it ; and all that follows is in the nature of execu- 
 tion of the decree, and the subsequent dealing with the 
 principal debtor does not operate to discharge the surety 
 from a liability under which he is no longer as surety^ 
 but under the decree.^ And^ on the same ground, where, 
 by an agreement made with the creditor subsequently 
 to the guaranty, the surety has converted himself into a 
 principal debtor, an arrangement giving time to the 
 original debtor, made after such agreement, will not dis- 
 charge or affect the surety. An example of this is 
 afforded by the case of Eeade v. Lowndes.^ In that 
 case, judgment having been obtained against a surety, 
 he entered into a new arrangement with the creditor 
 (irrespective of the principal debtor), by which execu- 
 tion was not to issue while he kept np certain policies 
 for securing the debt. It was held, that by this ar- 
 rangement the surety became a principal, and that no 
 subsequent dealing between the creditor and the princi- 
 pal debtor could annul it. 
 
 ' Jenkins v. Robinson, 2 Drew. 3.51. ^ 23 Beav. 861. 
 
 ' Per Kindersley, V. C, in Jenkins v. 
 Robinson, supra. 
 
 Barb. 541 ; Taylor v. Allen, 36 Barb. 294 ; Place v. Mcllvaine, 1 Daly (N. 
 T.)266; aft'd 38 N. Y. 96 ; Dorlon v. Christie, 39 Barb. 610; Kelly ». 
 Jenkins, 1 Hilton (N. Y.) 73.
 
 THE DISCHARGE OF THE SURETY. 421 
 
 (F) The siireti) may he discharged by the creditor 
 agreeing xoifli the i^inci'pdl debtor to giv^ time to the surety 
 himself. '* 
 
 It Las recently been decided in tlie case of The 
 Oriental Financial Corporation v. Overend, Gurney &l 
 Co./ tliat if tlie holder of a security agrees with the 
 principal to give time to the surety, he thereby dis- 
 charges the surety. Lord Hath^rley, L. C, said : " If 
 the creditor agrees with the principal that he will not 
 sue the sureties, the case is stronger than the usual case 
 of an agreement to give time to the principal, which 
 only involves, by implication, an engagement not to sue 
 the surety. The position of the surety is changed, be- 
 cause it is one thins: to lie bv and wait before suins; the 
 princij^al, during which time the surety has a right to 
 come in, discharge the debt, and immediately sue the 
 principal, and another thing to engage positively with 
 the principal that time shall be given to the surtty, and 
 so tie up your own hands from doing that w^hich would 
 throw the surety upon the principal." Where, however, 
 the creditor, by separate contract with the surety him- 
 self, made on good consideration, gives him further time, 
 he is not thereby discharged.^ 
 
 (2) A revocation of the contract of suretyship or 
 guaranty may not only take place by an agreement, 
 either express or arising from implication of law, but, it 
 would appear (although the point is not quite free from 
 doubt), by the death of the surety, 
 
 ■ L. R. 7 Ch. App. 142. 2 Defnes v. Smith, 10 W. R. (V. C. S.) 
 
 189. 
 
 * But a surety is not discharged from his liability by reason of a con- 
 tract made with his assent between the principal debtor and the creditor. 
 Wright ®. Storrs, 6 Bosw. (N. Y.), 600 ; Carlies v. Estes, 31 Vt. (3 Shaw), 
 €53; Adams «. Way, 33 Conn. ICO.
 
 422 THE LAW OF GUARANTIES. 
 
 The death of the surety is perhaps a revocation of the 
 guaranty.'^ • 
 
 The death of the surety, does not, of course, affect 
 his liability in respect of past transactions.. Whatever 
 liability was actually attached to the surety at the time 
 of his death may be enforced against his representa- 
 tives. With respect to future transactions and liabili- 
 ties to arise under the' guaranty, after the death of the 
 surety, it is, however, rather doubtful whether a guar- 
 anty is revoked by the death of the surety. In Wil- 
 liams on Executors,^ it is stated, that " If a man enters 
 into a continuing guaranty and dies, his executor, it 
 has been thought, is not liable upon it for advances 
 made after the testator's death, which operates as a 
 revocation." ^ In Bradbury v. Morgan,^ however, A. 
 having given a guaranty in the words : " To C. D. — I 
 request you will credit E. F., and in consideration 
 thereof»I guarantee the running balance," it was held, 
 that this promise was not revoked by A.'s death, with- 
 out notice to C. D. from the executor. Baron Chaunell 
 said: "The real question is, whether this was an author- 
 ity or a contract. I am of opinion that this is a con- 
 tract ; and, if I am right in my opinion, the consequence 
 
 ' 6th eci. vol. ii, p. 1635. ' 8 Jur. N. S. 918. 
 
 " See also Sm. Merc. Law, 8th ed. p. 
 468. 
 
 * Where the guaranty was on a joint obligation, and the surety died, 
 it was held that the remedy at law was gone, as respected the legal 
 representatives of the surety. Fielden v. Lahens, 6 Blatchf. 52i. 
 
 And so, upon the death of one who signed a promisso'ry note as surety 
 only, his estate is absolutely discharged, both in law and equity. Getty 
 V. Binsse, 49 N. Y. 385; 10 Amer. 397. 
 
 The estate of a surety bound jointly but not severally with his prin- 
 cipal, is discharged in law on his death, the other obligor surviving, and 
 in equity also, in the absence of equitable circumstances making him lia- 
 ble. Pickersgill v. Lahens, 15 Wallace (U. S.) 141.
 
 THE DISCHARGE OF THE SURETY. 423 
 
 is, tliat death does not act as a revocation. In a case 
 of authority, death does act as a revocation, but in the 
 case of contract it does not, except in the class of cases 
 mentioned "by ray brother Bramwell." Baron Bramwell 
 said: "The o-eneral rule is stated in Williams on Ex- 
 editors. This rule is subject to the exception of the 
 case where the jpersoiial qualifications of the deceased 
 have been in view on the making of the contract." 
 However, the case of Bradbury v. Morgan, just cited, 
 has been disapproved of, though not overruled, by Lord 
 Romilly, M. R., in Harris v. Fawcett.^ The facts are as 
 follows: One Joseph Fawcett, in October, 1840, gave 
 to the Wakefield and Barnsley Union Bank and their 
 trustees, a written guaranty for all such sums of money 
 as should, at any time thereafter, become due from his 
 son, James Fawcett, to the bank, but so that the liabil- 
 ity of Joseph Fawcett should not exceed, at any one 
 time, the sum of 3,000Z, The guaranty contained the 
 following clause : "This guaranty or engagement shall 
 be considered a continuing guaranty, and shall not be 
 withdrawn, but shall continue in full force until six 
 months after notice to the manager of the said bank, 
 in waiting under my hand, of my intention to discon- 
 tinue the same." Joseph Fawcett died in September, 
 1867, having, by his will, appointed his son, James 
 Fawcett, his sole executor. The bank made considera- 
 ble advances to James Fawcett, on the security of the 
 guaranty, in the. life-time of Joseph Fawcett, and, after 
 notice of his death, continued to make advances. 
 James Fawcett died in 1870, and the bank then 
 claimed to prove against Joseph Fawcett's estate under 
 the guaranty. 
 
 'L. R. 16Eq. 311; affirmed by L. JJ., see 29 L. T. R. 84 ; L. R. 8 Ch. App. 866.
 
 •424 THE LAW OF GUARANTIES. 
 
 No notice to tliscoiitiniie the guaranty was ever 
 given, either by Joseph or James Fawcett. Lord Kom- 
 illy, M. K., decided that the guaranty was revoked by 
 notice of the death of Josej^h Fawcett, and that, there- 
 fore, the bank could not prove for sums advanced after 
 such notice. . Lord Eomilly delivered the following 
 judgment: "I admit that there is very little distinction 
 between this case and that of Bradbury v. Morgan ; but 
 there is this distinction between the two cases: here 
 the guarantor is dead, and the bank knew of his death; 
 in the other case (which was decided upon demurrer), 
 it was admitted, by the pleadings, that they did not 
 know of liis death. Whether that is material or not, I 
 do not now intend to inquire; and I fully admit that 
 the judges do not found their judgment upon that in 
 the slightest degree; but I am unable to follow the 
 reasoning upon which their decision is founded. I 
 think it a very startling thing to say, as the Chief 
 Baron, in effect, does say there, that the words * I give 
 you notice ' mean ' you receive notice.' It is a very 
 startling proposition, because, if so, if a stranger gave 
 notice in the life-time of the guarantor, that would be a 
 sufficient notice to determine it. But surely that can 
 hardly be meant. This guaranty is very distinct ; it is 
 to continue ' until six months after notice to the man- 
 ager of the said bank, in writing under my hand, of my 
 intention to discontinue the same.' What does the 
 guarantor mean ? Would it be sufficient if somebody 
 else o'ave *a notice, and without it beino; under the hand 
 of the guarantor? Can anybody contend, or would 
 even the Chief Baron maintain, that that would be a 
 sufficient notice ? Then is the guaranty to go on for- 
 ever in the case of the death of the f>:uarantor? I am 
 of opinion that, as notice has not been given, as it
 
 THE DISCHARGE OF THE SURETY. 425 
 
 could not be given after the death of Joseph Fawcett, 
 and as the bank knew it could not be given, thereupon 
 the guaranty was over. I am not disposed to follow 
 Bradbury v. Morgan, even in a case exactly similar, and 
 certainly I shall not extend that case. I shall therefore 
 dismiss the claim, with costs." 
 
 III. The fulfilment of the object which the guaranty 
 was given to secure has, of course, the efi:ect of com- 
 pletely discharging tlie surety. Such fulfilment usually 
 takes place either; (1) By payment made by the prin- 
 cipal debtor; or (2) By a set-off having arisen between 
 the creditor and the principal debtor. 
 
 (1) The surety is disoliarged if payment he made hy 
 the principal debtor. 
 
 The surety will, of course, be discharged if the debt 
 guaranteed be paid by the original debtor. And if 
 it be only paid in part, the surety will be discharged 
 2yro tanto.^ 
 
 In the simple case of a payment of the debt being 
 made by the principal debtor, in the ordinary course of 
 business, generally speaking, no question or diflaculty 
 arises. A surety is, of course, discharged if the prin- 
 cipal debtor pay the creditor the amount of the secured 
 debt.f A payment made by the principal debtor will 
 not, however, have the effect of discharging the surety, 
 unless it be a valid payment. Thus, where the creditor 
 accepted money from the principal debtor, which he 
 
 * A partial payment by the debtor will not, in any event, relieve the 
 surety. Ellis v. McCormick, 1 Hilton (N. Y.) 313; Hunt v. Knox, 34 Miss. 
 555; Oberndorf ». Union Bank of Baltimore, 31 Md. 126; 1 Amer. 31. 
 
 t Or a lawful tender of the amount of his debt, by the principal, to tlie 
 creditor will discharge his surety. Mitch'cll «. Merrill, 2 Black. (Ind.) 87 ; 
 Brown v. Dysinger, 1 Rawle (Penn.) 407 ; Wallace v. McConnell, 13 Pet. 
 (U. S ) 1G3 ; Joslyn v. Eastman, 46 Vt. 258.
 
 426 THE LAW OF GUARANTIES. 
 
 tbouglit, at tlie time lie accepted it, was a good and 
 valid payment, whereas, in fact, the payment amounted 
 to tx fraudulent preference, and, as such, was subsequently 
 set aside, it was held, that the creditor had not thereby 
 done an act against the faith of the contract with the 
 surety, so as to discharge the surety.^ 
 
 It is, moreover, sometimes difficult to determine 
 whether a particular transaction amounts to a payment 
 by the surety. Thus, in The Guardians of the Lichfield 
 Union v. Green,- the defendant executed a bond condi- 
 tioned to be void if G. should honestly, diligently and 
 faithfully perform and discharge the duties of his office 
 as treasurer of a poor law union. One of the duties 
 was to pay out of any money, for the time being in his 
 hands, belonging to the guardians, all orders, <fec., 
 drawn upon him. G. was a country banker, issuing his 
 own notes. On the 28th December, the plaintiffs, the 
 guardians of the union, drew several orders for money, 
 some of which, to the extent of 95^., were, on that day, 
 presented at G.'s bank, and were paid in notes of the 
 bank. On the 31st December, the officer of the union 
 presented other orders, and received 200^. in notes of 
 G.'s bank. On the same day, the plaintiffs having to 
 transmit money to London, their clerk presented to G. 
 an order for ^l. 196'. 8c/., and obtained from him a com- 
 mon bankers' draft on a bank in London, whicli Was 
 afterwards dishonored. G. stopped payment at three 
 o'clock on the 31st December, and on the 1st January 
 was declared a bankrupt. It was held, that the defend- 
 ant, as surety, was not liable to make good either of the 
 three several sums of money to the plaintiffs, on the 
 ground that, as far as related to the 95/., the plaintiffs, 
 
 ^ Petty V, Cooke, L. R. G Q. B. 790. M 11, <fe N. 884.
 
 THE DISCHARGE OF THE SURETY. 427 
 
 by retaining it in tlieir possession during the Saturday, 
 thereby conclusively elected to treat the orders as paid, 
 and that the sureties had a ricjht to treat the transac- 
 tion as payment ; and that, as far as related to the other 
 two sums, inasmuch as the plaintiffs, instead of claim- 
 ing their right of being paid in sovereigns or Bank of 
 England notes, thought tit to receive the country notes 
 from Gr., the obligation of the defendant was thereby 
 satisfied and discharged. 
 
 The surety is not only entitled to the benefit of all 
 payments made by the principal debtor voluntarily and 
 in the usual course of business, but he is also entitled to 
 the benefit of all payments obtained' from the principal 
 debtor by process of law, or by the realization of securi- 
 ties given by him. 
 
 If the creditor makes available any of the secuiities 
 for the debt "guaranteed, the surety is entitled to the 
 benefit of it.* So, where the creditor distrained upon 
 goods mortgaged to the surety by the principal debtor, 
 for the 8cmie debt in respect of which the distress issued, 
 it was held, that the surety's liability, was discharged to 
 the extent of the sum produced by the sale of the 
 goods.^ 
 
 It frequently becomes a question, moreover, whether 
 a payment made by the principal debtor was made on 
 account of the debt guaranteed or in respect of some 
 other matter. Consequently, the doctrine of appropria- 
 tion, or, as it was termed in Roman law, " imputation " 
 of payments, is one of great importance to sureties. 
 Where, for instance, the principal debtor is indebted to 
 
 ^ Pearl v. Deacon, 24 Beav. 186. 
 
 ^-Succession of Pratt, 16 La. An. 357; Kennedy «. Bossiere, Id. 445; 
 Richards ®. Commonwealth, 40 Penn. St. 146 ; and see note t, page 411.
 
 42S THE LAW OF GUARANTIES. 
 
 the creditor in two sums, and for the payment of one of 
 these only a guaranty has been given, and subsequently 
 to the contracting of these two debts, sums of money 
 not sufficient to cover both debts are paid to the cred- 
 itor by the debtor, the question arises, in respect of 
 which of the debts are tliese sums paid ? The law of 
 England, in regard to the approj)riatiou of payments, is 
 concisely stated by Tindal, C. J., in Mills v. Fowkes,^ in 
 the following words : " According to the law of England 
 the debtor may, in the first instance, appropriate the 
 payment, solvitur in modmn solventis ; if he omit to do 
 so, the creditor may make the appropriation, recipitur 
 in modum recipientis ; but if neither make any appro- 
 priation, the law appropriates the payment to the earlier 
 debt." It is necessary to observe that, according to our 
 law, if the debtor wishes to approj)riate a payment to a 
 particular debt, he must exercise the option at the time 
 of making tJie payment?- But it is not necessary that 
 the creditor who receives the money should make an 
 immediate apqn-opriation of it. " The payee may make 
 the appropriation at any time before the matter comes 
 to trial, and he is not bound to give notice thereof to 
 the payer." ^ ^' 
 
 ' 5 Binjr. N. C. 455-461. See fur- " Tudor's L. C. Merc, and Maritime 
 
 tlier, Ckvton's Case, Tudor's L. C. Merc. Law, p. 18, and cases there cited, 
 and Maritime Law, 2d ed. p. 1, and notes " Tudor's L. C. Merc, and Maritime 
 
 thereto. See also 1 Story, Eq. Jur. ; Law, p. 21, and cases there cited. 
 Pothier on the Law of Obligations 
 (Evans' ed.), pp. SeS-S'ze. 
 
 * If the debtor at the time of payment fail to make the application and 
 the right to do so becomes the ci'editor's, it is generally held that he may 
 apply the payments upon the unsecured debt. Putnam v. Russell, 17 Vt. 
 54. But it has been held, the creditor must make a reasonable applica- 
 tion, and one to which the debtor could not reasonably object. Ayer «. 
 Hawkins, 19 Vt. 26; (see also Hargraves v. Cooke, 15 Geo. 321; Liver- 
 more V. Rand, 6 Foster, 85 ; Callahan ti. Boazman, 21 Ala. 246, &c.,'&c.) 
 It has also been said that the payment should be applied in the manner
 
 THE DISCHARGE OF THE SURETY. 421^ 
 
 According to tlie Roman civil la\Y, liowever, the 
 creditor, as well as the debtor, had to make the appro- 
 priation at the time of payment.^ Also, according to 
 that law, if neither the debtor nor creditor exercised the 
 right of appropriation, the payment was applied to the 
 more burdensome of two debts where one was more 
 burdensome than the other, thus favoring the debtor 
 rather than the creditor.^ If, however, both debts were 
 equally burdensome, then the payment was applied to 
 the earlier debt.^ 
 
 Au instance of these doctrines of appropriation of 
 payments being applied in ease of the surety is afforded 
 by the case of Marryatts v. White.^ There security 
 was given by a surety for goods to be supplied to his 
 principal. Goods were subsequently supplied, and pay- 
 ments were from time to titne made by the principal. 
 In respect of some of these payments, discount was al- 
 lowed for prompt payment. It was held, that it must 
 be inferred in favor of the surety that all these pay- 
 ments were intended in liquidation of the latter ac- 
 count. Upon the other hand, it has been held that a 
 payment by the obligor of a bond to the obligee, to 
 whom the obligor is also otherwise indebted, cannot,with- 
 out some circumstances to show that it was intended to be 
 made in discharge of the bond, be so applied in favor 
 of the surety of the obligor in an action uj^on the bond 
 under the plea of payment.^ So, also, in the case of 
 
 ' Dig. lib. 46, tit. 3, § 1. '2 Stark. 101. 
 
 * Dig. lib. 46 tit. 3, § 5. " Plomer v. Long, 1 Stark. 153, and 
 
 ' Ibid. see note (a) at the end of this case. See 
 
 most beneficial to the debtor (Hamer v. Kirkwood, 25 Miss. 95 ; Liver- 
 more v. Rand, 6 Foster, N. H. 85) ; and again, as a general rule, it sliould 
 be applied to the oldest debt. Millikiu v. Tufts, 31 Me. 497 ; Dows v. 
 Morewood, 10 Barb. (N.Y.) 183; Hunter v. Osterhoudt, 11 Barb. 33; Cald- 
 well V. Wintworth, 14 N. H. 431, &c., &c., &c.
 
 430 THE LAW OF GUARANTIES. 
 
 • 
 
 Williiims V. RakWlinson/ the doctrine of appropriation 
 of payments was held not to discharge the defendant. 
 In that case the defendant executed a bond conditional 
 to secure the plaintiffs, who were bankers, for any sums 
 which for ten years the plaintiffs should advance on 
 bills, c%c., which T. should from time to time draw on 
 them, or make payable at their house, and all checks, 
 <fcc., not exceeding 5,000/. in the whole. It was agreed 
 that this bond should not affect a prior security given 
 by T. to the plaintiffs. No notice was given to the de- 
 fendant by the plaintiffs, that T. was indebted to them 
 10,000/. at the time the defendant executed his bond. 
 T., however, saw the accounts every fortnight, and re- 
 ceived the vouchers half-yearly. At the close of his ac- 
 count, T. was indebted to the plaintiffs more than 
 10,000/. ; but, subsequently, to the executing of the de- 
 fendant's bond, he had paid into the plaintiffs' bank 
 more than 5,000/. It was held that the defendant was 
 liable to the extent of 5,000/. Best, C. J., said, " When 
 the money was paid, nothing was said as to the account 
 to which it was to be applied, and if the two accounts 
 w^ere blended, the course of business is to apply the 
 payments to the earlier ; that is the principle laid down 
 in Clayton's case ^ and confirmed in Bodenham v. Pur- 
 chas,^ but here the accounts must have been blended, 
 for the defendant's principal agreed to such an applica- 
 tion of his payments; his accounts were settled half- 
 yearly, and he must have seen that the remittances sub- 
 sequent to the bond had been applied to the 10,000/." * 
 
 also Wriglit v. Hickling, L. R. 2 C. P. ' Roporterl 1 Mer. 572. 
 
 199. = Reported 2 B. <fe Aid. 39. 
 
 ' 2 Bing, 71. See also Ivirby v. Duke 
 of Marlborough, 2 M. & S. 18.' 
 
 * Courts will as a rule apply payments according to the understanding
 
 THE DISCHARGE OF THE SURETY. 431 
 
 Neither does the doctrine of appropriation of pay- 
 ments enable a person who, as surety, is the obligor of 
 a bond for the payment of money by instalments, to 
 have the whole dividend received by the creditor upon 
 the whole debt, under the bankruptcy of the principal 
 debtor, applied in discharge of that instalment. Such 
 dividend can only be ratahly applied, in part payment 
 of each instalment as it becomes due.^ 
 
 (2) The surety may he discharged hy a set-off exist- 
 ing hetioeen the principal debtor and the creditor!''^' 
 
 By the Roman civil law, compensation or set-off, 
 operated as an extinguishment of the debt, ipso jure ; 
 hence it had the same effect as payment, to which it 
 bore a near affinity, and by its operation the debtor 
 was liberated from his debt and his sureties from their 
 obligation.^ By English law, however, a set-off exist- 
 ing between the principal debtor and the creditor is 
 certainly not regarded as operating to cause kn extinc- 
 tion of the debt between the parties. But where the 
 creditor, without the consent of the surety, becomes 
 indebted to the j^rincipal debtor in a sum which would 
 amount to a set-off in full, the surety has a complete 
 defense against the creditor, which he may avail him- 
 
 * Martin v. Brecknell, 2 M. & S. 38. ' Colqulioun's Summary of the Ro- 
 
 man Civil Law, par. 1843. 
 
 of the parties, when that understanding can be ascertained. Emery v. 
 Tichout, 13 Vt. 15 ; Stewart o. Keith, 12 Penn. St. 238 ; otherwise the rule 
 will be to seek the antecedent debt tirst. 
 
 * Whenever, in a proceeding by the creditor, the principal can in equity 
 claim a set-oflF, the surety can do the sanie. La Farge ». Halsey, 4 Abb. 
 (N. Y.) 397 ; 8. c. 1 Bosw. (N. Y.) 171 ; Lyman w. Newman, 29 Barb. 162 : 
 Walker v. McKay, 3 Met. (Ky.) 530; Maguire e. Howard, 40 Penn. St. 391 ; 
 Harrington w. Wallace, 8 Jones' L. (N. C.) 42. A merely legal claim — as, 
 for example, a claim to damages of the principal against the creditor — can- 
 not be available as a set-off. La Farge «. Halsey, 4 Abb. (N. Y.) 397 ; Ly- 
 man v. Newman, 29 Barb. (N. Y.) 163.
 
 •132 THE LAW OF GUARANTIES. 
 
 self of, by equitalle plea, in an action at law.'^ If the 
 set-off be partial, rfhd not complete, then the surety- 
 has only a defense />/'(9 tanto. 
 
 IV. Another group of cases in which the surety is 
 held to be discharged consists in those cases in which a 
 loss has occurred through the negligence of the creditor. 
 Such negligence of the creditor may consist (1) in laches 
 by him; or (2) in the loss by him of securities given 
 for the guaranteed^debt. 
 
 (1) The surety 7nay he discliarged hy the laches of 
 the creditor. * 
 
 It is a rule that the surety will be discharged if the 
 creditor omit to do anything which he is bound to do 
 for the protection of the surety. A good example of 
 this rule is furnished by the case of Watts v. Shuttle- 
 worth.^ Thefe it w^as stipulated in the agreement be- 
 tween the plaintiff and the principal debtor, that the 
 
 ' Bechervaise v. Lewis, 20 W. R. C. "" 1 H. <k N. 353 : 5 H. & N. 235. 
 
 P. 726 ; s. c. L. R. 1 C. P. 372. 
 
 * A surety is at liberty, if he thinks the creditor not sufficiently ener- 
 getic, to pay the debt and become subrogated to his right and manage 
 the claim to his own satisfaction ; it is only in those cases where the surety 
 loses his own right of subrogation by the act of the creditor that the surety 
 is discharged. Barnes v. Crandall, 11 La. An. 119. See, as to mere laches, 
 Barhydt v. Ellis, 45 N. Y. 107; Gosserand v. Lacour, 8 La. An. 75; Mou- 
 ton V. Beauchamp, 10 Id. 666; and see cases cited in note t, page 411. 
 
 A departure from tlie strict stipulations in the execution" of an under- 
 taking which does not increase the risk of the surety, as e. g. a waiver of 
 punctuality in deliveiy, will not discharge a guarantor. Benjamin v. Hil- 
 lard, 23 How. (U. S.) 149. 
 
 The surety cannot, by notice, impose upon the creditor the duty of 
 actual diligence. Wells «. Mann, 45 K Y. 327 ; 6 Amer. 93. 
 
 Mere indulgence shown to the principal will not discharge the surety. 
 Thompson v. Hall, 45 Barb. 212; Pollock 'c. Hoag, 4 E. D. Smith (N. Y.) 
 473 ; and see Fetrow v. Wiseman, 40 Ind. 148, where it was held, that a 
 creditor's neglect to prove his claim against the estate of his principal 
 would not defeat his right of action against the surety.
 
 THE DISCHARGE OF THE SURETY. 433 
 
 plaintiff should insure, from risk by fire, the work which 
 the principal debtor was doing for him. The defend- 
 ant, when he became surety for the due performance of 
 the work, was informed of this stipulation. It was held 
 that he was discharged by the plaintiff's omission to in- 
 sure. In this case it was also expressly laid down in 
 teruLS, that in equity, upon a contract of suretyship, if 
 the person guaranteed does any act injurious to the 
 surety, or inconsistent with his rights, or, if he omits to 
 do any act which his duty enjoins him to do, and the 
 omission proves injurious to the surety, the latter will 
 be discharged. The following instances of the applica- 
 tion of this rule may be cited : Where a person binds 
 himself by guaranty to indorse any bills which may be 
 given in part payment of a debt to be contracted by a 
 third person, the person so binding himself is discharged, 
 unless a demand be iuade upon him to fulfil his engage- 
 ment within a reasonable and convenient time.^ 
 
 In Phillips y. Astliug,^ the defendant guaranteed the 
 payment of a bill by the drawer or the acceptor. The 
 party who gave this guaranty was not a party to the 
 bill. The bill was not presented for payment when it 
 became due, as it ought to have been ; two days after- 
 wards, notice that it remained unpaid was given to the 
 drawers, but no notice was given to the defendant. 
 The drawers and acceptor continued solvent for many 
 months after the bill was dishonored, and it was not 
 until they had become bankruj^ts that payment was 
 demanded of the defendant. Under these circum- 
 stances, because the necessary steps were not taken to 
 obtain payment from the parties to the bill while they 
 continued solvent, the Court of Common Pleas held the 
 
 ' Payne v. Ives, 3 D. <fe Ry. 664. ' 2 Taunt. 206. 
 
 28
 
 434 THE LAW OF GUAltANTlES. 
 
 surety, i. e.y the person wlio guaranteed the payment of 
 the bill, to be discharo-ed. 
 
 A broker, when he bought goods for his principal, 
 agreed for one-half per cent, to indemnify him from any 
 loss on the resale. It was held that this undertaking 
 was discharged when the principal had a fair oppor- 
 tunity of selling to advantage, but neglected it, though 
 he was afterwards obliged to sell at a loss.^ 
 
 It also appears that where any one gives security for 
 the conduct of another in a certain office, which brings 
 him in contact with persons also in the office, he has a 
 right to expect that these persons will, in all things 
 affecting the surety, conduct themselves according to law 
 and discharge their duties.^ But though this is gene- 
 rally true, yet it cannot avail to discharge a surety who 
 has expressly bound himself for a person's doing certain 
 things, unless it can be shown that the party taking the 
 security has by his conduct either prevented the things 
 from being done, o?' connived at their omission^ or en- 
 abled the person to do what he ought not to have done, 
 or leave undone what he ought to have done, and that, 
 but for such conduct, the omission or commission would 
 not have happened.^ Thus, in the case of Dawson v. 
 Lawes,* a bond was given by two sureties for the faith- 
 ful discharge of his duties by an official assignee in 
 bankruptcy. Immediately upon his death, by the ex- 
 amination of his books, he was found to be a defaulter 
 to a very large amount. Actions were commenced on 
 the bond against the sureties. One of the sureties 
 sought to restrain the action, on the ground of the 
 
 ' Curry v. Edcnsor, 3 T. M. 524. Dawson v. Lawce, 23 L. J. N. S. 434, 
 
 ' Pel' Lord Bn'unliatn, in Mncta^gnrt 439. 
 V. Watson. 3 C. &, F. fi25 ; Mcir v. Har- * Per Lord Brougham, in Mactaggart 
 
 die, 8 Sliiiw &. Diinloo, 346; Monta2.ue v. W.-itson, 3 0. & F. 542. 543. 
 V. 'lidcombe, 2 Vern. 618. See also * 23 L. J. N. S. Eq. 434.
 
 THE DISCHARGE OF THE SURETY. 435 
 
 negligence of the officials, whose duty it was to examine 
 the assignee's accounts, &c. There did not appear, how- 
 ever, to have been any want of compliance, by these 
 parties, with tlie rules and regulations in bankruptcy, 
 and the motion for an injunction was refused. It was 
 held, in this case, that to discharge a. surety for the due 
 performance of duties there must be, on the part of 
 the ol)lio;;ee, an act of connivance or gross ueii:li2:ence 
 
 O ' CD O CD 
 
 amounting to a wilful shutting of the eyes to the fraud, 
 or something approximating to it. So again, as we have 
 already seen, where a bond is given for the good be- 
 havior of another in an office or employment, the surety 
 is entitled to call on the employer to dismiss the em- 
 ployed if, after the giving of the bond, the employed is 
 guilty of acts for which he may be dismissed.^ And, 
 consequently, if the employer has placed it out of his 
 power to comply with this request of the surety, by 
 continuing the employed in his service, when he ought 
 to have dismissed him, the surety is discharged.^ 
 
 Upon the other hand, the rule that laches by the 
 creditor discharges the surety, does not extend to mere 
 omissions by the creditor to do something, which, 
 although he may have been requested to do it, he is not 
 by his own promise, nor in any other way, legally bound 
 •to do. Thus, for instance, in Shepherd v. Beecher,^ A,, 
 on apprenticing his son to B.,gave B. a bond for 1,000/. 
 for his son's fidelity. The son embezzled 203/., which 
 A. paid, but desired B. not to trust the son any more 
 with the cash. Notwithstanding this, B. did trust the 
 son again with the cash, and was negligent in calling 
 him to account, and he embezzled 1,000/. more. It was 
 
 ' See a7//e. p. 324. 480; riiillips w. Foxall, L. 17, 7 Q. B, 
 
 " Sanderson v. Aston, L. 1?. 8 Exch. 606. 
 "73 ; Burgesa v. Eve, L. R, 13 Eq. "2 l\ W. 283.
 
 436 THE LAW OF GUARANTIES. 
 
 held, tliat A. was liable, but not to answer more, in the 
 whole, than \f)0<dl.^ including the first 203(?. The court, 
 in giving judgment, said: "The father having given 
 this bond for his son's fidelity, though there was an em- 
 bezzlement, and though the father sent this letter to the 
 master, desirinc; him not to trust the son with receivino^ 
 cash any longer, yet the father continued bound, and 
 ought not to have satisfied himself loith sending the letter 
 and tahing no further care of the matter^ but should 
 have endeavored to have made some end with the mas- 
 tQV^ and to have got up the bond,' wherefore he must 
 continue liable to answer some embezzlements, unless 
 there should appear fraud in the master." 
 
 So, again, independently of the statute of limitations, 
 the surety is not discharged by mere lapse of time. 
 Thus, in Peel v. Tatlock,^ it was decided that if A. be- 
 came bound to B. for the honesty of C, who embezzles 
 money, B. may maintain an action on the guaranty, 
 though three years have elapsed without any notice 
 having been given of the embezzlement of C. by B. to 
 A. ; at least, if A. was acquainted of the circumstance 
 from any other quarter, and B. does not appear to have 
 industriously concealed it from him, and A. will not be 
 discharged from his guaranty, though B. appear to have 
 given credit to C. for the amount of the sum embezzled, 
 
 Neither is an accidental omission to answer an in- 
 quiry, laches which discharges a surety. Thus, in the 
 case of Oxley v. Young,^ the defendant guaranteed to 
 the plaintiff payment of goods to be supplied to C, 
 upon an undertaking of D. to indemnify the defendant. 
 The plaintiff accordingly informed the defendant that 
 the goods were preparing, and afterwards shipped them 
 
 M B. <fe P. 419. « 2 Bl. 613.
 
 THE DISCHARGE OF THE SURETY. 437 
 
 for C. without giving notice to the defendant that they 
 were shipped. Afterwards, D. desired to recall his in- 
 demnity, upon which the defendant wrote to the 
 plaintiff to know whether he had executed the order. 
 To this inquiry no answer was given by the plaintiff 
 for a considerable time, he having gone abroad in the 
 interim. Upon this the defendant, supposing from the 
 silence of the plaiatiff that the order was not executed, 
 gave up his indemnity to D. It was held that the de- 
 fendant still remained liable on his guaranty. 
 
 So, too, the omission of the creditor to take proceed- 
 ings which would obviously have a fruitless result does 
 not amount to laches or discharge the surety. Thus, in 
 Muskett V. Rogers,^ a guaranty given by the defendant 
 was to be void if the plaintiff should omit to avail him- 
 self to the utmost of any security he held of W. E.., and 
 if anything should prevent the defendant from retain- 
 ing the proceeds of an execution levied on the property 
 of W. R. It was held, that the guaranty was not 
 avoided by the plaintiff's omitting to put in suit a bill 
 of exchange, drawn by W. R. and accepted by an insolv- 
 ent still in prison, or by the defendant's being de- 
 prived of a part of the proceeds of his execution against 
 W. R., such part being the value of the goods of 
 another person wrongfully taken under that execution. 
 
 The rule laid down in Watts v. Shuttleworth,^ that 
 an injurious act or omission of the creditor will dis- 
 charge the surety, was held not to apply under the 
 following circumstances : A bank granted a letter of 
 credit to a company, and agreed to accept bills drawn 
 upon them by the company in respect of that credit, on 
 the terms that the company should ship tea and forward 
 
 ' 5 Bing. N. C. '728. See Holl ». ' 7 H. & N". 353 ; 8. o. 5 H. & N. 235. 
 
 Brown, 2 Ad. <fe E. 758.
 
 438 THE LAW OF GUARANTIES. 
 
 bills of Indiiiir, invoices and policy of insurance on the 
 tea to the bank, and should also dravv on B. & Co. bills 
 to be accepted by B. & Co. to an amount sufficient to 
 cover the amount authorized by the letter of credit. B. 
 & Co. guaranteed the performance by the company of 
 these terms, " holding themselves responsible for the 
 same." The company drew on the bank, and the bank 
 accepted the bills, but, owing to the failure of the bank 
 after the dates when the bills were drawn and before 
 they became due, the company shipped no tea, and did 
 not perform any of the terms agreed on. It was held, 
 that the failure of the bank was no reason why the 
 company should not have performed its part of the con- 
 tract, and that B. & Co. were not relieved from their 
 guaranty.^ It was also expressly held, that the failure 
 of the bank did not amount to an injm'ious act^ so as to 
 discharge B. & Co. (the sureties) within the rule laid 
 down in Watts v. Shuttleworth. 
 
 (2) Tlie surety is^ generally speaking^ discharged by 
 the loss, through the fault of the creditor, of securities 
 received by the creditor from the principal debtor J^' 
 
 We have already seen- that a surety is entitled to 
 the benefit of all the securities which the creditor has 
 against the principal. It follows, therefore, that, if the 
 surety is deprived of this benefit by the act of the 
 creditor, he will be discharged;^ and, consequently, a 
 surety is bound to use diligence and care with regard to 
 securities held by him, and a want of such care and dili- 
 
 ' Ex parte Agra Bank, L. R. 9 Eq. 2 8. <fe S. 457 ; Straton v. Rastall. 2 T. 
 
 725. See judgment of Bacou, C. J., in R. 3ti6; Williams v. Price, 1 8. <fe S. 
 
 this case, at p. 732. 5S1 ; Strange v. Fooks. 4 Giff. 408 ; 11 
 
 ' Ante. p. 326. W. R. 983. See also Watts v. Sliiitile- 
 
 ^ Wulff V. Jay, 20 W. R Q. B. lODO; worth, 7 II. &. N. 353 ; 5 H. & N. 235 ; 
 
 e. c. L. R. 7 Q. B. 756 ; Cape! v. Butkr, Ezporte Mure, 2 Cox, 63. 
 
 * In cases cited in note f, page 411.
 
 THE DISCHARGE OF THE SURETY. 439 
 
 gence, whereby the surety is prejudiced, will discharge 
 him from his suretyship. Thus, for instance, a creditor 
 holding a mortgage for a guaranty debt is bound to 
 hold it for the benefit of the surety, so as to enable him, 
 on paying the debt, to take the security in its original 
 condition, unimpaired/ The right of the surety is to 
 have the same security in exactly the same plight and 
 condition in which it stood in the creditor's hands.^ 
 This doctrine does not, however, apply to such securi- 
 ties as life insurances. It is not the duty of the creditor 
 on the bankruptcy of the debtor, to keep up a policy on 
 the life of the latter. On the contrary, it is his duty to 
 sell and realize such a security.^ 
 
 Upon the same principle, again, an abandonment by 
 the creditor of- execution against the principal releases 
 the surety, because the principal is a trustee of the 
 execution.* 
 
 This was also the case when, under the old law, the 
 execution was against the body. So, that a surety was 
 discharged where the creditor, by neglecting the statu- 
 tory formalities, lost the benefit of an execution under 
 a warrant of attorney, which, according to the agree- 
 ment of suretyship, he had proceeded to enforce upon a 
 notice by the surety.^ 
 
 So, again, a surety has also a right in equity, that 
 any security given by a cosurety shall not be wasted.^ 
 But it seems that this right is the only right which a 
 surety possesses in respect of such a security. 
 
 ' riedge V. Buss, Johns. 633. B. & P. 61 ; and of Leacli, V. C, in 
 
 * Id. per Wood, V. C. Williams v. Price, 1 S. <& S. 581. 
 
 ^ Coates V. ('nates, 33 Beav. 249. * Watson 2>. Alcock, 1 Sra. & GifF. 
 
 See also Wheatley v. Bastow, 7 De G. 319; 4 De G. M. & G. 242. See also 
 
 M. <fe G. 261. Wulff r. Jay, L. R. 7 Q. B. 75G ; 20 W. 
 
 * Jlayhew v. Cricbelt, 2 Swanst. 185. R. In30. 
 
 See also obseivationa of Lord Eldon, ° Margetts i'. Gregory, 10 W. R. Ex. 
 
 in English v. Darley, 3 Esp. 49. 50 ; 2 630.
 
 4-iO THE LAW OF GUARANTIES. 
 
 In order, liowever, to effect a discharge of the surety, 
 it must appear both that there has been a loss, and that 
 such loss was caused by the fault of the creditor. 
 
 Thus, where there has not been any actual loss at 
 all, but, at most, a ti'ansaction which might possihly 
 have caused a loss and affected the surety's position, the 
 surety is not discharged; and, accordingly, where a 
 creditor has security upon the equitable interests of his 
 debtor and of a surety in a trust fund, and such 
 creditor assigns the debt, together with the securities 
 for the same, it is not necessary to give the surety notice 
 of such assignment, and the assignee does not lose his 
 right against the interest of the surety, though no such 
 notice be given. This is settled by the case of Wbeatley 
 V. Bastow.' In that case. Turner, L. J., in hisjudgraent, 
 says, " This point, so far as I am aware, is wholly new, 
 audit is certainly of great importance, as it introduces 
 a new element into the consideration of the cases of 
 principal and surety. In the absence of authority, we 
 can determine the question only upon principle. It 
 must depend upon what are the relative obligations of 
 the creditor, the assignee and the surety, arising out of 
 the relation which subsists between them. The creditor, 
 is, no doubt, under the obligation of preserving the se- 
 curities which he takes from the piincipal debtor, for 
 (as observed by the ViceChancellor) the surety may 
 entitle himself to the benefit of those securities, and, if 
 any of them be lost by the act or default of the cred- 
 itor, the surety may be wholly or partially discharged ; 
 hut the creditor enters into no contract with the surety, 
 not to assign the debt or the secui'ities. The law gives 
 him the right to assign them, and, if he does so assign. 
 
 ' 7 De G. M. & G. 2G1, 279, 280.
 
 THE DISCHARGE OF THE SURETY. 441 
 
 them, the obligation whicli attached upon the creditor 
 attaches upon tbe assignee. The position of the surety- 
 is in no respect altered. Tbe assignee, on the other 
 hand, acquires by the assignment all the rights of the 
 assignor, and it is difficult, I think, to see how the surety 
 can be in a better position against the assignee than 
 he was in against the assignor. The surety, it is said, 
 has the right to know who is the assignee ; but, admit- 
 ting this right, the question still remains, is the right of 
 the assignee against the surety destroyed, because the 
 fact of the assignment has not been communicated to 
 him ? On whom does the law cast the onus of finding 
 the ci-editor? Generally speaking, as I conceive, upon 
 the debtor, but, apart from this consideration, the surety, 
 if he have no notice of the assignment, may pay the 
 creditor, and the payment, as I apprehend, will be per- 
 fectly good against the assignee, and if, upon the pay- 
 ment being made or tendered the creditor be required 
 to deliver, and does not deliver any securities held by 
 him, the surety would, no doubt, be entitled to relief 
 in this court, and to stay any proceedings by the cred- 
 itor. It is to be remembered in these cases, that a surety, 
 thou2:h a favored debtor, is still a debtor, and that he 
 
 O 7.7 
 
 may at any time relieve himself by paying the debt ; 
 and, further, that if notice to the surety of the assign- 
 ment of the debt be held to be necessary, serious im- 
 pediments to assignments by creditors may, in many 
 cases, be created." 
 
 Neither, of courgje, is a surety discharged by the 
 mere fact that a loss has taken place with regard to the 
 property given as security. To discharge the surety, it 
 must appear that such loss was in some wa}'^ attributable 
 to the fault of the creditor. And, even should a security 
 prove absolutely worthless, whether it was so originally
 
 442 THE LAW OP GUARANTIES. 
 
 or whether ifc became so afterwai-da, the surety is not 
 discharged unless the loss or deficiency of the original 
 and primary security was occasioned by the act of the 
 creditor.* Thus, in March a trader assigned all his 
 goods, <fec., to A. B., to secure a composition to his 
 creditors, and A. B. became lialde for the payment. The 
 wife of the trader became surety to A. B. in respect to 
 her sepai'ate estate. In November the trader was made 
 bankrupt, and A. B. entered into an arrangement by 
 which he gave up the goods to the assignee. It was held 
 that the first assignment to A. B. was an act of 
 bankruptcy, and that the wife's separate estate as surety 
 was not released.^ 
 
 Moreover, even where there has been a loss, and a 
 loss caused by the fault of the creditor, the surety is 
 not in all cases discharged. For, in analoi2;y to a line of 
 cases which have been before alluded to,^ it was held 
 that where, by subsequent dealings with the creditor, 
 the surety had converted himself into aprincipal debtor, 
 and the creditor afterwards took the principal debtor 
 in execution, and discharged him without payment, he 
 had not thereby released the surety.* 
 
 V. Supposing none of the contingencies which have 
 been now enumerated happen to the suretyship, it will, 
 in process of time, like other contracts and rights, be- 
 come extinguished by the operatfon of the statute of 
 limitations. 
 
 A discharge of tlie surety mg>y taJce j5/ac<? by the 
 operation of the statute of limitations.'^ 
 
 ' ITardwick v. Wrirjbt, 35 Beav. 133. 'Ante, p. 407 (Head E., "Giving 
 
 " Hardwick v. Wright, 35 Bcuv. 133. Time to Principal") 
 
 * Pease v. Lowndes, 23 Beav, 361. 
 
 * 2 Bouvier's Inst. 71, 72 ; and see Miles v. Linnell, 97 Mass. 298.
 
 THE DISCHARGE OF THE SURETY. 443 
 
 In the case' of a guaranty not under seal, after six 
 years have elapsed from the period at which the surety 
 first became -liable ti^ make payment to the creditors, 
 the right of the creditor to compel him to do so will be 
 barred by 21 Jac. 1, c. 16, s. 3. If, however, the guaranty 
 be under seal, the creditors' rights against the surety 
 will not be barred until the expiration of twenty 
 years.* It is frequently a matter of some little diffi- 
 culty to deterraiue when the right of the creditor to 
 call upon tlie surety for payment first commenced, and 
 the statute of limitations, therefore began to run. This 
 question must, to a great extent, depend upon the cir- 
 cumstances of each individual case, but the two follow- 
 ing decisions may be useful as a guide : — 
 
 In Colvin v. Buckle,'* the defendants gave the follow- 
 ing guaranty: 
 
 "You having expressed some doubt of the propriety 
 of paying Mr. Gooch his draft on you for 850/. in our 
 favor, we hereby engage, if you will pay us the same, 
 we will reimburse }ou the amount, on demand, with 
 interest, in the event of your finding it necessary to call 
 upon us to do so, either from the state of Mr. Gooch''s 
 pending accounts with your London or Bengal house, or 
 from any other circimistancesr It was held, that the 
 statute of limitations began to run against the plaint- 
 iffs when all the facts were ascertained upon which the 
 defendant'' s legal liahility depended, and that the delay 
 in the adjustment of the accounts between the plaintiff's 
 and Gooch, caused by needless litigation, in which the 
 plaintiffs were engaged, did not prevent the statute of 
 limitations from runnino;. 
 
 ^ 3 ife 4 Win. 4, c. 42, R. 3. For the to works treating on the law of contracts 
 ^eriwa/ effect and operation of the stsit- generally, 
 ute of limitation.^, tlie reader is referred ^ 8 M. tt W. 680.
 
 444 THE LAW OF GUARANTIES. 
 
 In Holl V. Hadley/ H. gave the plaintiffs a guar- 
 anty for the value of coals to be supplied to N. H., on 
 condition that no application should be made to him 
 (H.) for payment, but " on failure of the utmost efforts 
 and legal proceedings" of the plaintiffs to obtain pay- 
 ment from N. H. Coals were supplied under tlie guar- 
 anty, and remained unpaid for, until Apiil, 1820, At 
 that period, H., in consideration of the plaintiffs giving 
 K H. (the principal debtor) " two years and upwards^^ 
 for the liquidation of his then debt, agreed to reserve 
 to the plaintiffs all claim that they might have upon 
 him, H., by virtue of the former security, and " tp be 
 bound by the consequence thereof, if, at the expiration 
 of such period," the plaintiffs should not have been 
 paid. N. H. never paid the debt. In Ajvil, 1824, he 
 went to France, but was occasionally in Migland, pri- 
 vately and for short periods, from that time till 1830, 
 when he finally returned. The plaintiffs issued process 
 against liim in June, 1826, and continued it till 1830, 
 when they arrested N. H. upon it, on his return to 
 England. Soon afterwards he became insolvent. In 
 July, 1828, the plaintiffs commenced an action against 
 H. on his guaranties; that action abated by his death in 
 1829. Afterwards, in June, 1829, the plaintiffs brought 
 an action upon the guaranties against his executors, who 
 pleaded the statute of limitations. Issue was joined on 
 that plea. It was held, that, assuming tbat the first 
 guaranty was incorporated with tlie second, and that a 
 reasonable time must be allowed after the expiration of 
 the two years, for the plaintiffs to endeavor to obtairi 
 payment from H., nevertheless, that the plaintiffs, hav- 
 ing allowed two years to pass, without proceeding 
 
 ' 2 A. <t E. 758.
 
 THE DISCHARGE OF THE SURETY. 445 
 
 against N. H., after which he went abroad, had, at all 
 events, exceeded such reasonable time, and were barred 
 of the remedy against H., by the statute of limitations, 
 in July, 1828 * 
 
 * There appear to be other ways by which a surety may be discharged. 
 
 He may be discharged, for instance, by accoud and satisfaction. 
 When a principal ^'s bound to do an act, and security is given, and after- 
 wards he, without obtaining the consent of his surety, receives some other 
 thing, in the place of what is owing him, this is an accord and satisfac- 
 tion, and releases the surety from his engagement. See Whitcher v. Hall, 5 
 B. & Cress, 269; s. c. 8 Dowl. & Ry. 23 ; Theobold on Suretyship, p. 60; 
 and also Bacon v, Chssney, 1 Stark. 192. Or by compromise. In a case 
 where the principal debtor and the creditor make an arrangement between 
 themselves, by which the debt is canceled. Hall v. Huchons, 3 Myl. & 
 K. 428 ; Bx parte Smith, 13 Bro. C. 0. 1 ; Fx parte Wilson, 14 Ves. 420. 
 Or by a submission of the matters between the debtor and creditor to 
 ARBITRATION. Eldred ». Bennett, 83 Penn. St. 183. Or by the creditor's 
 ACCEPtANCE OF A CONFESSION of judgment by the debtor. Bank of Steu- 
 benville v. Leavitt, 5 Hamm. (Ohio) 207 ; Norris r. Crummey, 2 Rand. 323. 
 Or by MISTAKE. It is the doctrine of the civil law, that a surety is dis- 
 charged from his obligation entered into under an error, either of fact or 
 of law, and which be does not ratify by continuing the contract after the 
 discovery. Burge on Suretyship, p. 231. The rule is conflicting in the 
 different States. In Massachusetts, the rule appears to be, that if a 
 promise to pay money is made under a mistake of law, the promise cannot 
 be enforced; and if the money be actually paid under such mistake, it 
 can be recovered back. May v. Coffin, 4 Mass, 342; Warden v. Tucker, 7 
 Mass. 452 ; Freeman v. BoynLon, 7 Mass. 488 ; Haven v. Foster, 9 Pick. 
 112. The rule in the Suprtine Court of the United States, and in New 
 York, is, that acts committed under a mistake of fact may be relieved 
 against, but that acts done under a mistake of law cannot be, on that 
 account, set aside. Hunt v. Rousmaniere's Adm. 1 Pet. (U. S.) 1 ; s. c. 8 
 Wheat. 174 ; Hebborn v. Dunlop, 1 Wheat. 179, 195; Shotwell v. Murray, 
 1 Johns. Ch. (N. Y.) 512; Lyon v. Richmond, 2 Id. 151 ; Storrs v. Barker, 
 6 Id. 166; Clark v. Butcher, 9 Cow. 670. Or, by the omission or mis- 
 take OR ACT OF another. Where the return upon a writ of replevin 
 fails to state precisely what property is thereby replevied, the sureties on 
 the bond are notjiable to return such property as has not been taken. 
 Miller v. Moses, 56 Mass. 128. A. levied on property belonging to B., on 
 execution against B. and C, who were respectively principal and surety; 
 and D. claimed this property, and replevied it. Upon trial of the replevin 
 suit, judgment was rendered against D. ; the property was returned to B. ,
 
 446 THE LAW OF GUARANTIES. 
 
 aud an action was commcncd on the replevin bond. A. then brought suit 
 on the original judgment against B and 0., and, upon recovering judg- 
 ment, the same was satisfied by the surety C. Held, t'-at the payment of 
 the original debt to A. discharged D. from all liability on the replevin 
 bond. Moore v. Campbell, 36 Vt. 301. Or, ihe surety may be discharged, 
 cither in whole or in p irt, by pbocess op a couut, as in the case of an in- 
 junction being served upon him, as in Coming r. Elliot, 10 La. An. 753. Or, 
 finally, if a surety with others, he may be discharged by verdict and judg- 
 ment in an action against his cosurety. Hill v. Morse, CI Me. 541. Though 
 where judgment was recovered against the principal and surety in a note, 
 and subsequently action v/as brought thereon, and a new judgment ob- 
 tained against the principal — AeW, that the surety was not discharged, 
 even though the lien of the first judgment was lost by the rendition of the 
 second. Periy ». Saunders. 36 Iowa, 427. InHarriman®. Egbert (Id. 270), 
 it was held that notice from a surety to the creditor to bringsuitupon the 
 obligation, should demand that a suit be brought against all the parlies, 
 and not simply against the principal, otherwise failure of the creditor to 
 bring suit will not discharge the surety. Or, by a stay op execution 
 against the creditor, given by a cosurety, to whom a judgment has been, 
 in whole or in part, assigned. Smith v. Shidler, 3 Pitts, 550.
 
 APPENDIX 
 
 English amd American Statdtes.
 
 APPENDIX 
 
 English and American Statutes. 
 
 STATUTE 29 CAR. 11, Cap. 3. 
 
 Sections 1, 2, 3, 4, 7, 8, 9, 17. 
 
 Section 1. All leases, estates, interests of freehold or terms 
 of years, or any uncertain interest of, in, or out of any mes- 
 suages, manors, lands, tenements or hereditaments, made or 
 created by livery and seizin only, or by parol, and not put in 
 writing and signed by the parties so making or creating the 
 same, or their agents thereunto lawfully authorized by writing, 
 shall have the force and effect of leases or estates at will only, 
 and shall not, either in law or equity, be deemed or taken to 
 have any other or greater force or effect ; any consideration for 
 making an}^ such parol leases or estates, or any former law or 
 usage, to the contrary notwithstanding. 
 
 Sec. 2. Except, nevertheless, all leases not exceeding the 
 term of three years from the making thereof, whereupon the 
 rent reserved to the landlord, during such term, shall amount 
 to two third parts at the least of the full improved value of 
 the thing demised. 
 
 Sec. 3. And, moreover, that no leases, estates, or interests, 
 either of freehold or terms of years, or any uncertain interest, 
 not being copyhold or customary interest, of, in, to, or out of 
 any messuages, manors, lands, tenements or hereditaments, 
 shall be assigned, granted or surrendered, unless it be by deed 
 or note in writing signed by the party so assigning, granting 
 or surrendering the same, or their agents thereunto lawfully 
 authoriz;^d by writing, or by act and operation of law. 
 29
 
 450 APPENDIX. 
 
 Sec. 4. No action sliall be brought whereby to charge any 
 executor or administrator upon any s])ecial promise, to answer 
 damages out of his own estate ; 2, or whereby to charge the 
 defendant upon any special promise to answer for the debt, 
 default, or miscarriages of another person ; 3, or to charge any 
 person upon any agreement .made upon consideration of mar- 
 riage ; 4, or upon any contract or sale of lands, tenements, or 
 hereditaments, or any interest in or concerning them ; 5, or 
 upon any agreement that is not to be performed within the 
 •space of one year from the making thereof ; 6, unless the agree- 
 ment upon which such action shall be brought, or some memo- 
 randum or note thereof shall be in writing, and signed by the 
 part}' to be charged therewith, or by some person, thereunto by 
 Lim lawfully authorized. 
 
 Sec. 7. All declarations or creations of trusts or confidences 
 of any lands, tenements, or hereditaments shall be manifested 
 and proved by some writing signed by the party who is by law 
 enabled to declare such trust, or by his last will in writing, or 
 else they shall be utterly void and of none effect. 
 
 Sec. 8. Provided always, that where any conveyance shall 
 be made of any lands or tenements, by which a trust or confi- 
 dence shall or may arise or result by the implication or con- 
 struction of law, or be transferred or extinguished by an act 
 or operation of law, then, and in every such case, such trust or 
 confidence shall be of the like force and effect as tlie same 
 would have been if this statute had not been made: any thing 
 hereinbefore contained to the contrary notwithstanding. 
 
 Sec, 9. All grants or assignments of any trust or confidence 
 shall likewise be in writing, signed by the party granting or 
 assigning the same, or by such last will or devise, or else shall 
 likwise be utterly void and of none effect. 
 
 Sec. 17. No contract for the sale of any goods, M-ares, and 
 merchandises for the price of £10 sterling, or upwards, shall 
 be allowed to be good, except the buyer shall accept part of the 
 goods so sold, and actually receive the same, or give something 
 in earnest to bind the bargain, or in part payment, or that some 
 note or memorandum in writing of the said bargain, be made 
 and signed by the parties to be charged by such contract, or 
 tlieir agents thereunto lawfully authorized.
 
 APPENDIX. 451 
 
 STATUTE 9 GEO. IV, Cap. 14. 
 Sections 5, 6, 7. 
 
 Sec. 5. No action shall be maintained whereby to charge 
 •any person upon any promise made after full age to pay any 
 debt coDtracted during infancy, or upon any ratification after 
 full age of any promise or simple contract made during in- 
 fancy, unless such promise or ratification shall be made by some 
 writing signed by the party to be charged therewith.* 
 
 Sec. 6, No action shall be brought whereby to charge any 
 person upon or by reason of any representation or assurance 
 made or given concerning or relating to the character, conduct, 
 credit, ability, trade or dealings of any other person, to the in- 
 tent or purpose that such other person may obtain credit, 
 money, or goods upon, .unless such representation or assur- 
 ance be made in writing, signed by the party to be charged 
 therewith. f 
 
 Sec. 7. And whereas by an act passed in England in the 
 twenty-ninth year of the reign of King Charles the Second, 
 intituled "An Act for the Prevention of Frauds and Per- 
 juries," it is among other things enacted that from and after the 
 2±th day of June, 167T, no contract for the sale of any goods, 
 wares, and merchandise, for the price of ten pounds sterling 
 or upwards, shall be allowed to be good unless the buyer shall 
 accept part of the goods so sold, and actually receive the same, 
 or give something in earnest so bind the bargain, or in part of 
 payment, or that some note or memorandum in writing of the 
 said bargain be made and signed by the parties to be charged 
 by such contract, or their agents thereunto lawfully authorized ; 
 And whereas a similar enactment is contained in an act passed 
 in Ireland in the seventh year of the reign of King William 
 the Third ; And whereas it has been held that the said recited 
 enactments do not extend to certain executory contracts for the 
 sale of goods, which nevertheless are within the mischief 
 
 * As to the memorandum required by this section, see Harris v. Wall, 1 Exch- 
 122; Hunt v. Massey, 5 Barn. & Adol. 902; Hartley v. Wharton, 11 Adol. & Ell. 
 934 ; Hyde v. Johnson, 2 Bing. N. R. 776. 
 
 f See Swann v. Phillips, 8 Adol. & Ell. 457 ; Turnley v. Macgregor, 6 Man. 
 ck G. 46 ; Devaux v. Steinkeller, 6 Bing. N. R. 84 ; Haslock v. Fei^usson, 7 Adol. 
 & Ell. 86.
 
 452 APPENDIX. 
 
 thereby intended to be remedied : and it is expedient to extend 
 tbe said enactments to such executory contracts ; Be it enacted^ 
 that the said enactments shall extend to all contracts for the 
 sale of goods of the value of ten pounds sterling and upwards, 
 notwithstanding the goods may be intended to be delivered at 
 some future time, or may not at the time of such contract be 
 actually made, procured, or provided, or fit or ready for de- 
 livery, or some act may be requisite for the making or complet- 
 ing thereof, or rendering the same fit for delivery. 
 
 MERCANTILE LAW AMENDMENT ACT. 
 
 19 & 20 Vict. 1856. 
 
 III. No special promise to be made by any person after the 
 passing of this act to answer for the debt, default or miscarriage 
 of another person, being in w^riting, and signed by the party to 
 be charged therewitli, or by some other person by him thereunto 
 lawfully authorized, shall be deemed invalid to support an ac- 
 tion, suit or other proceeding, to charge the person by whom 
 such promise shall have been made, by reason only that the 
 consideration of such promise does not appear in writing, or hy 
 necessarv inference from a written document. 
 
 30 (fe 31 Vict. c. 108. 
 An Act io provide for the Guarantee of Persons liolding Situa- 
 tions of Trust under Government hy Companies, Societies, 
 or Associations. [20th August, 1867.] 
 
 "Whereas persons having offices or employments in the 
 public service are frequently required to give security by 
 means of sureties for the due performance of the duties of 
 such offices or employments, and it is expedient that the guar- 
 antee of companies, which comply with certain conditions, 
 should be authorized to be accepted in lieu of such sureties : 
 Be it enacted by the queen's most excellent majesty, by 
 and with the advice and consent of the lords spiritual and 
 temporal, ai^d commons, in this present parliament assembled, 
 and by the authority of the same, as follows :
 
 APPENDIX. 453 
 
 1. The following terms shall in this act, unless the context 
 otherwise requires, have the meanings hereby assigned to 
 them ; that is to say, 
 
 The term " company " shall mean and include any com- 
 pany, corporation, society, or association incorporated by act 
 of parliament or by royal charter or under any act relating to 
 joint stock companies ; 
 
 The term "• directors " shall include the managing body of 
 any company ; 
 
 The term " office or employment in the public service " 
 shall mean every office or employment which is remunerated 
 out of the consolidated fund, or out of moneys provided by 
 parliament, or out of or by fees authorized by some public act 
 of parliament, or by some order made thereunder ; 
 
 The term " the treasury " shall mean the lord high treas- 
 urer or the commissioners of the treasury for the time being. 
 
 2. Where any person has any office or employment in the 
 public service, and such person is required to give security by 
 means of a surety or sureties for all due performance of the 
 duties of such office or employment, the head of department 
 or other person or persons in whom is vested the discretion of 
 determining the nature, amount, and sufficiency of the security 
 (hereinafter referred to as " the employer '*) may, in the exer- 
 cise of such discretion, accept as security the guarantee of any 
 company which complies with the conditions contained in this 
 act, and which has received a certificate from the treasury as 
 hereinafter provided, and may fix in each case the amount to 
 be guaranteed. 
 
 3. The conditions on which the guarantee of a company 
 may be accepted under this act, are as follows : 
 
 (1.) The capital which has been actually subscribed must 
 not be less than fifty thousand pounds ; 
 
 (2.) The amount of capital paid up must not be less than 
 twenty thousand pounds ; 
 
 (3.) The company shall set aside a special fund of such 
 amount, and invested in such manner as is hereinafter men- 
 tioned, and in any case in which the amount of capital paid up 
 shall be less than thirty thousand pounds, the first ten thousand 
 pounds set aside for the creation of such special fund shall be
 
 454 APPENDIX. 
 
 raised by new calls on the existing capital of the company, or 
 by calls on new capital created for that purpose, or by both ; 
 
 (4.) The amount of any one guarantee shall not exceed the- 
 sums liereinafter mentioned ; 
 
 (5.) The company shall within three weeks after their first 
 meeting in every year send to the treasury such list of the 
 members of the company, and summary of particulars, as is 
 required by the twenty-sixth section of the Companies Act, 
 1862, to be sent to the registrar, and also a copy of their bal-. 
 ance sheet or balance sheets for the previous twelve months, 
 and a statement of the special fund and of the other funds of 
 the company, and of the actual state of investment of such 
 funds, such balance sheet and statement to be verified by the 
 auditor or auditors of the company. 
 
 4. With respect to the special fund, the following enact- 
 ment shall be made : 
 
 (1.) The special fund shall bs invested in the public funds 
 or government securities of Great Britain or Ireland in the 
 name of such three or more of the directors of the company 
 as are from time to time named by the treasury, and in the 
 matter of this act, and the dividends thereon shall be paid to 
 the said directors, but no part of the securities in which the 
 special fund is invested shall be sold without the consent of the 
 treasury, signified in writing under the hand of one of the sec- 
 retaries or under secretaries of the treasury ; 
 
 (2.) The amount of the special fund shall not at the time 
 that any guarantee of the company is accepted in pursuance 
 of this act be less than ten thousand pounds, and in each year 
 after the special fund is formed, a sum of not less than one 
 thousand pounds out of the assets or income of the company 
 shall be added to the special fund, and invested as before men- 
 tioned until the sum invested on account of the special fund 
 amounts to twenty thousand pounds, and the said fund may be 
 further increased in such manner as the company may direct. 
 
 (3.) The special fund shall be liable, after the other assets 
 of the company are exhausted, to meet all claims under guar- 
 antees given in pursuance of this act, and all such claims^ 
 whether accrued or contingent, shall be the sole charge upon.
 
 APPENDIX. 455 
 
 the special fund so long as there are any such guarantees given 
 by the company. 
 
 5. The annount which may be guaranteed under this act in 
 respect of any one person shall not, — 
 
 («.) If the amount invested on account^ of the special fund 
 in manner in this act provided is less than twenty thousand 
 pounds, exceed one thousand iive hundred pounds. 
 
 (5.) If the amount so invested amounts to twenty thousand 
 pounds, and is less than thirty thousand pounds, exceed three 
 thousand pounds ; 
 
 (c.) If the amount so invested amounts to tliirty thousand 
 pounds, and is less than fifty thousand pounds, exceed five 
 thousand pounds ; 
 
 {d.) In any case exceed ten thousand pounds ; 
 And where any guarantee has been given in respect of any one 
 person for a sum exceeding fifteen hundred pounds, three 
 thousand pounds, or five thousand pounds respectively, the 
 amount so invested on account of the special fund shall not, 
 during the pendency of such guarantee, be reduced below 
 twenty thousand pounds, thirty thousand pounds, or fifty thou- 
 sand pounds repectively. 
 
 6. The guarantee may be given by such document, under 
 the seal of the company, and in such form as the employer may 
 direct, and it may be given either to her majesty, her heirs and 
 successors, or to the employer, or to such officer as the employer 
 may direct. 
 
 7. Where a company has given a guarantee in pursuance 
 of this act, with respect to any person having an office or em- 
 ployment in the public service, and any loss accrues owing to 
 some act or default of such person which constitutes a breach 
 of the guarantee, the employer may certify under his hand the 
 amount due in respect of such loss from tlie guarantor, and 
 such certificate shall be conclusive evidence of such amount 
 being due from the guarantor ; and on payment by the com- 
 pany of the amount specified in such certificate all rights and 
 remedies to which tlie employer is or may be entitled on ac- 
 count of the defaulter shall vest in the company, and the re-
 
 456 APPENDIX. 
 
 ceipt of the employer for the amount paid shall be conclusive 
 evidence of such payment. 
 
 8. Tlie treasury may issue regulations with respect to the 
 acceptance and form of any guarantee under this act, and with 
 respect to the persons who are to give certificates of loss, and 
 all such regulations shall be binding on all such persons having 
 any office or employment in the public service, or on that class 
 of persons to which tliey are made applicable. 
 
 9. The treasury, on proof to their satisfaction that a com- 
 pany complies with the conditions required by this act, may, if 
 they shall think fit, give a certificate to that eflfect; such cer-* 
 tificate of compliance shall be given under the hand of one of 
 the secretaries of the treasury, and shall be published in such 
 manner as the treasury direct, and after such publication the 
 company named therein shall be deemed to have complied 
 with the conditions of this act. 
 
 10. The treasury may from time to time appoint an in- 
 spector, which may inspect and examine all the accounts and 
 books of a company who gives guarantees under this act, and 
 may examine the officers and servants of such company, and 
 the company shall pay to the inspector such remuneration as 
 the treasury may fix. 
 
 If any such company obstruct such inspector in his inspec- 
 tion or examination, or if, on the report of an inspector or 
 otherwise, the treasury are satisfied that any such company 
 does not comply with the conditions of this act, the treasury 
 may give a certificate to that eflPect ; such certificate shall be 
 given and published in the same manner as a certificate of 
 compliance, and after the date of the publication thereof the 
 company named therein shall be deemed not to comply with the 
 conditions of this act, and shall not give any guarantees under 
 this act until the treasury give them a certificate of compliance. 
 
 11. [Nothing in this act contained shall aflfect the right of 
 giving or accepting any guarantee in any case where a guarantee? 
 by a company might be given or accepted without the authority 
 of parliament. 
 
 12. This act may be cited for all purposes as " The Guar- 
 antee by Companies Act, 186Y."
 
 APPENDIX. 457 
 
 ALABAMA. Revised Code (Walker), 1867. 
 Sections 1590-1591, 1862-1863, 1864, 3599. 
 
 Sec. 1590 (1320). Iso trust concerning lands, except such as 
 results bj implication or construction of law, or which may be 
 transferred or extinguished by operation of law^, can be created 
 unless by instrument in writing, signed by the party creating 
 or declaring the same, or his agent or attorney lawfully author- 
 ized thereto in writing. 
 
 Sec. 1591 (1321). ]S^o such trust, whether implied by law, 
 or created or declared by the parties, can defeat the title of 
 creditors or purchasers for a valuable consideration without 
 notice. 
 
 Sec. 1862 (1551). In the following cases, every agreement 
 is void, unless such agreement, or some note or memorandum 
 thereof, expressing the consideration, is in writing, and sub- 
 scribed by the party to be charged therewith^ or some other 
 person by him thereunto lawfully authorized in writing. 
 
 1. Every agreement, which, by its terms, is not to be per- 
 formed w^ithin one year from the making thereof. 
 
 2. Every special promise, by an executor, or administrator, 
 to answer damages out of his own estate. 
 
 3. Every special promise to answer for the debt, default, or 
 miscarriage of another. 
 
 4. Every agreement, promise, or undertaking, made upon 
 consideration of marriage, except mutual promises to marry. 
 
 5. [Every contract for the sale of goods, chattels, or things 
 in action, for a price exceeding two hundred dollars, unless the 
 buyer accepts and receives part of such goods and chattels, or 
 the evidences, or some of them, or such things in action ; or 
 unless the buyer at the time pay some part of the purchase 
 money.] (Repealed by Act 7th Ts^ovember, 62, p. 102.) 
 
 6. Every contract for the sale of lands, tenements, or 
 hereditaments, or of any interest therein, except leases for a 
 term not longer than one year, unless the purchase money, or a 
 portion thereof, be paid, and the purchaser be put into posses- 
 sion of the land by the seller. 
 
 Sec. 1863 (1552). When goods, or things in action, are 
 8old, or lands, tenements, or hereditaments, sold or leased at
 
 458 APPENDIX. 
 
 public auction, and the auctioneer, liis clerk or agent, makes a 
 memoranduni of the property, aiid price thereof at which it is 
 sold or leased, the terms of sale, the name of the purchaser, or 
 lessee, and the name of the person on whose account the sale 
 or lease is made, such memorandum is a note of the contract 
 within the meaning of the preceding section. 
 
 Sec, 1864 (1553). No action can be maintained to charge 
 any person, by reason of any representation or assurance made, 
 concerning the character, conduct, ability, trade or dealings of 
 any other person, when such action is brought by the person to 
 whom such representation or assurance was made, unless the 
 same is in writing, signed by the party sought to be charged. 
 
 Sec. 2599 (2198). A seal is not necessary to convey the 
 legal title to land, to enable the grantee to sue at law. Any 
 instrument in writing, signed by the grantor, or his agent, hav- 
 ing a written authority, is effectual to transfer the legal title to 
 the grantee, if such was the intention of the grantor, to be col- 
 lected from the entire instrument. 
 
 ARKANSAS. English's Digest. 
 
 Chapter 73. Sections 1, 2, 10, 11, 12, 13. 
 
 Sec. 1. No action shall be brought, first, to charge any ex- 
 ecutor or administrator, upon any special promise, to answer 
 for any debt or damage out of his own estate ; second, to 
 charge any person upon any special promise to answer for the 
 debt, default, or miscarriage, of another ; third, to charge any 
 person upon an agreement made in consideration of marriage ; 
 fourth, to charge any person upon any contract for the sale of 
 lands, tenements, or hereditaments, or any interest in or con- 
 cerning them ; fifth, to charge any person upon any lease of 
 lands, tenements, or hereditaments, for a longer term than one 
 year ; sixth, to charge any person, upon any contract, promise, 
 or agreement, that is not to be performed within one year from 
 the making thereof; unless the agreement, promise, or con- 
 tract, upon which such action shall be brought, or some memo-
 
 APPENDIX. 459 
 
 randum or note thereof shall be made in writing, and signed 
 by the party to be charged therewith, or signed by some other 
 person by him thereunto properly authorized. 
 
 Sec. 2. No contract for the sale of goods, wares, and mer- 
 chandise, for the price of thirty dollars, or upwards, shall be 
 binding on the parties, unless — first, there be some note or 
 memorandum signed by the party to be charged; or, second, 
 the purchaser shall accept part of the goods so sold, and 
 actually receive the same ; or, third, shall give something in 
 earnest to bind the bargain, or in part payment thereof. 
 
 Seo. 10. All leases, estates, interests of freeholds, or lease 
 of years, or any uncertain interest of, in, to, or out of any mes- 
 suages, lands, or tenements, made or created by livery and 
 seizin only, or by parol, and not put in writing and signed by 
 the parties so making or creating the same, or their agents, 
 lawfully authorized by writing, shall have the force and effect 
 of leases or estates at will only, and shall not either in law or 
 equity be deemed or taken to have any other or greater effect 
 or force than as leases not exceeding the term of one year. 
 
 Seo. 11. No leases, estates, or interests, either of freehold 
 or of terms of years, in, to, or out of any messuages, lands or 
 or tenements, except leases or a term not exceeding one year, 
 shall at any time hereafter be assigned, granted or surrendered 
 unless it be by deed or notice in writing signed by the party so 
 assigning, granting, or surrendering the same, or by their 
 agents lawfully authorized by >vriting, or by operation of law. 
 
 Sec. 12. All declarations or creations of trusts or confi- 
 dences of any lands or tenements shall be manifested and 
 proven by some writing signed by the party who is or shall be 
 by law enabled to declare such trusts, or by his last will in 
 writing, or else they shall be void ; and all grants or assign- 
 ments of any trusts or confidences shall be in writing .signed 
 by the party granting or assigning the same, or by his or her 
 last will in writing, or else they shall be void. 
 
 Sec. 13. When any conveyance shall be made of any lands 
 or tenements, by which a trust or confidence may arise or re- 
 sult by implication of law, such trust or confidence shall not 
 be affected by anything contained in this act.
 
 460 APPENDIX. 
 
 CALIFORNIA. General Laws (Hittell). 
 
 Paragraph 3150, et seq. Parts of Chapters 1, 2, 3. Sections 6, 7, 
 8, 9, 10, 12, 13, 14, 19, 21, 25. 
 
 Sec. 6. No estate or interest in lands, other than leases for 
 a term not exceeding one year, nor any trust or power 0%'^er or 
 concerning lands, or in any manner relating thereto, shall here- 
 after be created, granted, assigned, surrendered, or declared, 
 imless by act or operation of law, or by deed or conveyance in 
 writing, subscribed by the party creating, granting, assigning, 
 surrendering, or declaring the same, or by his lawful agent 
 thereunto authorized by writing. 
 
 Sec. 7. The preceding section sliall not be construed to affect 
 in any manner the power of a testator in the disposition of his 
 real estate by a last will and testament, nor to prevent any 
 trust from arising or being extinguished by implication or 
 operation of law. 
 
 Sec. 8. Every contract for the leasing for a longer period 
 than one year, or for the sale of any lands, or any interest in 
 lands, shall be void, unless the contract, or some note or mem- 
 orandum jthereof expressing the consideration, be in writing, 
 and be subscribed by the party by whom the lease or sale is to 
 be made. 
 
 Sec. 9. Every instrument required to be subscribed by any 
 person, under the last preceding section, may be subscribed by 
 the agent of such "party, lawfully authorized. 
 
 Sec. 10. Nothing contained in this chapter shall be con- 
 strued to abridge the powers of courts to compel the specific 
 performance of agreements, in cases of part performance of 
 •such agreements. 
 
 Sec. 12. In the following cases, every agreement shall be 
 Toid, unless such agreement, or some note or memorandum 
 thereof, expressing the consideration, be in writing, and sub- 
 scribed by the party charged therewitli : 1. Every agreement 
 that by the terms is not to be performed within one year from 
 the making thereof. 2. Every special promise to answer for 
 the debt, default, or miscarriage of another. 3. Every agree- 
 ment, promise, or undertaking, made upon consideration of 
 marriage, except mutual promises to marry.
 
 APPENDIX. 461 
 
 Sec. 13. Every contract for the sale of any goods, chattels, 
 or things in action, for the price of* two hundred dollars or 
 over, shall be void, unless, 1st, a note or memorandum of such 
 contract be made in writing, and be subscribed by the parties 
 to be charged therewith ; or, 2d, unless the buyer shall accept 
 and receive part of such goods, or the evidences, or some of 
 them, of such things in action ; or, 3d, unless the buyer shall 
 at the time pay some part of the purchase money. 
 
 Sec. 14. Whenever any goods shall be sold at auction, and 
 the auctioneer shall, at the time of sale, enter in a sale-book a 
 memorandum, specifying the nature and price of the property 
 sold, the terms of the sale, the name of the purchaser, and the 
 name of the person on whose account the sale is made ; such 
 memorandum shall be deemed a note of the contract of sale 
 within the meaning of the last section. 
 
 Sec. 19. Every instrument required by any of the provis- 
 ions of this chapter to be subscribed by any party, may be 
 subscribed by the lawful agent of such party. 
 
 ' Sec. 21. Every grant or assignment of any existing trust in 
 land, goods, or things in action, unless the same shall be in 
 writing, subscribed by the person making the same, or by his 
 agent lawfully authorized, shall be void. 
 
 Sec. 25. The term "lands," as used in this act, shall be 
 construed as co-extensive in meaning with lands, tenements, 
 and hereditaments, and the terms " estate and interest in 
 lands," shall be construed to embrace every estate and interest, 
 present and future, vested and contingent, in lands, as above 
 defined. 
 
 COLORADO. 
 
 Eevised Statutes, 1868, Chaptek 37, Secs. 6-13, 16, 17, 18. 
 
 Sec. 6. No estate or interest in lands, other than leases for a 
 term not exceeding one year, nor any trust or power over or 
 concerning lands, or in any manner relating thereto, shall here- 
 after be created, granted, assigned, surrendered, or declared, 
 unless by act or operation of law, or by deed or conveyance in 
 -writing, subscribed by the party creating, granting, assigning,
 
 462 APPENDIX. 
 
 surrenderino;, or declaring tlie same, or by his lawful agent, 
 thereunto authorized by writing. 
 
 Sec. Y. The preceding section shall not be construed to 
 affect, in any manner, the power of a testator in the disposition 
 of his real estate by a last will and testament, nor to prevent 
 any trust from arising or being extinguished by implication or 
 operation of law. 
 
 Sec. 8. Every contract for the leasing for a longer period 
 than one year, or for the sale of any lands, or interests in lands, 
 shall be void, unless the contract, or some note or memorandum 
 thereof, expressing the consideration, be in writing, and be 
 subscribed by the party by whom the lease or sale is to be 
 made. 
 
 Sec. 9. Every instrument required to be subscribed by any 
 party, under the last preceding section, may be subscribed by 
 the agent of such party lawfully authorized. 
 
 Sec. 10. Nothing in this chapter contained shall be con- 
 strued to abridge tl^e powers of the court of equity to compel 
 the specific performance of agreements, in cases of part per- 
 formance of such agreements. 
 
 Sec. 11. All deeds of gift, all conveyances, and all trans- 
 fers, and assignments, verbal or written, of goods, chattels, or 
 things in action, made in trust for the use of the person mak- 
 ing the same, shall be void, as against the creditors existing of 
 such person. 
 
 Sec. 12. In the following cases every agreement shall be 
 void, unless such agreement, or some note or memorandum 
 thereof, be in writing, and subscribed by the party charged 
 therewith : 
 
 1st. Every agreement that, by its terms, is not to be per- 
 formed, within one year from the making thereof. 
 
 2d. Every special promise to answer for the debt, default, 
 or miscarriage of another person. 
 
 3d. Every agreement, promise, or undertaking, made upon 
 consideration of marriage, except mutual promises to marry. 
 
 4th. Every contract for the sale of any goods, chattels, or 
 things in action, for the price of $50 or more, shall be void, 
 unless, 1st, a note or memorandum of such contract be made
 
 APPENDIX. 463 
 
 in writino-j and be subscribed by the parties to be charged 
 therewith ; 2d, unless the buyer shall accept and receive part 
 of such goods, or the evidence of some of them, of such things 
 in action ; 3d, unless the buyer shall at the time pay some part 
 of the purchase money. 
 
 S^. 13. Whenever goods shall be sold at auction, and the 
 auctioneer shall at the time . of sale enter in a sale-book a 
 memorandum, specifying the nature and price of the property 
 sold, the terms of the sale, the name of the purchaser, and the 
 name of the person on whose account the sale is made, such 
 memorandum shall be deemed a note of the contract of the 
 sale, within the meaning of the last preceding section. 
 
 Sec. 16. Every instrument required by any of the provis- 
 ions of this chapter to be subscribed by any party, may be 
 subscribed by the lawful agent of such party. 
 
 Sec. 17. Every conveyance or assignment in writing or 
 otherwise, of any estate or interest in lands, or in goodsj or 
 things in action, or of any rents or profits issuing tliereupon, 
 and every charge upon lands, goods, or things in action, or 
 upon the rents and profits thereof, made with the intent to 
 hinder, deliay, or defraud creditors or other persons, of their 
 lawful suits, damages, forfeitures, debts, or demands, and every 
 bond, or other evidence of debt given, suits commenced, decree 
 or judgment suffered with the like intent, as against the person 
 so hindered, delayed, or defrauded, shall be void. 
 
 Sec. 18. Every grant or assignment of any existing trusts 
 in lands, goods, or things in action, unless the same shall be in 
 writing, subscribed by the party making the same, or by his 
 agent lawfully authorized, shall be void. 
 
 CONNECTICUT. General Statutes, Revision of 1860. 
 
 Title XXXVII. Chapter 1. Sections 10, 24. 
 
 Sec 10. All grants, bargains, and mortgages of land, shall 
 be in writing, subscribed by the grantor, with his own hand, 
 or with his mark with his name thereunto annexed, and also 
 attested by two witnesses, with their own liands, or with their
 
 464 APPENDIX. 
 
 marks with their names thereunto annexed ; or the name of 
 the grantor shall he subscribed to such grant, by his lawful 
 attorney, authorized by a written power for that special pur- 
 pose, duly executed and acknowledged in the manner herein 
 prescribed in the case of deeds ; and such subscribing of the 
 name of the grantor shall be attested by two witnesses. « 
 
 Sec. 24. No lease of any houses or lands, for life, or any 
 term of years, exceeding one year, shall be accounted good and 
 effectual in law, to hold such houses and lands against any 
 other person or persons whatsoever but the lessor or lessors^ 
 and their heirs, unless such lease shall be in writing, subscribed 
 by the lessor, attested by two subscribing witnesses, acknowl- 
 edged before some authority empowered to take the acknowl- 
 edgment of deeds of land, and recorded at length in the 
 records of the town where such estate lies. 
 
 Title XXV. Sections 1, 2. 
 
 Sec. 1. * * * No suit in law or equity shall be 
 brought or maintained upon any contract or agreement, where- 
 by to charge any executor or administrator, upon any special 
 promise, to answer damages out of his own estate ; or whereby 
 to charge the defendant upon any special promise, to answer 
 for the debt, default, or miscarriage, of. another person; or to 
 charge any person upon any agreement made upon considera- 
 tion of marriage ; or upon any contract for the sale of lands, 
 tenements, or hereditaments, or any interest in or concerning 
 them ; or upon any agreement that is not to be performed 
 within the space of one year from the making thereof; unless 
 the contract or agreement upon which such action shall be 
 brought, or some memorandum or note thereof, shall be made 
 in writing, and signed by the party to be charged therewith, 
 or by some other person thereunto by him lawfully author- 
 ized. 
 
 Sec. 2. No contract for the sale of any goods, wares, or 
 merchandise, for the price of thirty-five dollars or upwards, 
 shall be allowed to be good, unless the buyer shall accept part 
 of the goods so sold, and actually receive the same, or give 
 something in earnest to bind the bargain, or in part payment,
 
 APPENDIX. 465 
 
 or unless some note or memorandum, in writing, of the said 
 bargain, shall be made and signed bj the parties to be charged 
 by such contract, or by their agents, thereunto lawfully author- 
 ized. 
 
 DELAWARE. Revised Code, 1852 (as amended 1874).. 
 Title IX. Chaptek 63. Sections 5, 6, 7. 
 
 Sec. 5. All promises and assumptions, whereby any person 
 shall undertake to answer or pay for the default, debt, or mis- 
 carriage of another, any sum under five dollars, being proved 
 by the oath or affirmation of the persons to whom such promise 
 and assumption shall be made, are good and available in law to 
 charge the party so making such promise or assumption. 
 
 Sec. 6. No action shall be brought, whereby to charge any 
 executor or administrator, upon any special promise to answer 
 damages out of his own estate, or whereby to charge anv de- 
 fendant, upon any special promise, to answer for the debt, 
 default, or miscarriage of another jDcrson, of the value of five 
 dollars, and not exceeding twenty dollars, unless such promise 
 and assumption shall be proved by the oath, or affirmation, of 
 one credible witness, or some memorandum, or note in writino- 
 shall be signed by the party to be charged therewith. 
 
 Sec. 7. No action shall be brought w^hereby to charge any 
 person upon any agi-eement made upon consideration of mar- 
 riage, or upon any contract or sale of lands, tenements, or 
 hereditaments, or any interest in, or concerning them, or upon 
 any agreement that is not to be performed within the space of 
 one year from the making thereof, or to charge any person 
 whereby to answer for the debt, default, or miscarriage, of 
 another, in any sum of the value of twenty -five dollars and 
 upwards, unless the same shall be reduced to writing, or some 
 memorandum or note thereof shall be signed by the party to 
 be charged therewith, or some other person thereunto by him 
 lawfully authorized ; except for goods, wares, and merchandise, 
 sold and delivered, and other matters which* are properly 
 changeable in an account, in which case the oath or affirmation 
 
 30
 
 4:66 APPENDIX. 
 
 t 
 
 of the plaintift", together with a book regularly and fairly kept, 
 ehall be allowed to be given in evidence in order to charge the 
 defendant with the sums tlierein contained. 
 
 TifLE XVII. Chaptek 120. Section 3. 
 
 vSec. 3. No demise, except it be by deed, shall be effectual 
 for a longer term than one year. 
 
 FLORIDA. Thompson's Digest, 1847. 
 Second Division, Tit. 1. Cap. 1. Sections 1, 2, 3. 
 
 Sec. 1. No estate or interest of freehold, or for a term of 
 years of more than two years, or any uncertain interest of, in, 
 or out of any messuages, lands, tenements, or hereditaments, 
 shall be created, made, granted, conveyed, transferred, or re- 
 leased, in any other manner than by deed in writing, sealed and 
 delivered in the presence of at least two witnesses, by the 
 party or parties creating, making, granting, conveying, trans- 
 ferring, or releasing such estate, interest, or term of years, or 
 by his, her, or their agent thereunto lawfully authorized, un- 
 less by last will and testament, or other testamentary appoint- 
 ment duly made according to law ; and that from and after the 
 day and 3'ear aforesaid, no estate or interest, either of freehold 
 or term of years, other than terms of years for not more than 
 two years, or any uncertain interest of, in, to, or out of any 
 lands, tenements, messuages, or hereditaments, shall be assigned 
 or surrendered, unless it be by deed sealed and delivered in the 
 presence of at least two witnesses, by the party or parties so 
 assigning or surrendering, or by his, her, or their agent thereto 
 lawfully authorized, or by the act and operation of law. 
 
 Sec. 2. All declarations and creations of trust and confi- 
 dence of, or in, any messuages, lands, tenements, or heredita- 
 ments, shall be manifested and proved by some writing signed 
 by the party authorized by law to declare or create such trust 
 or confidence, or by his or her last will and testament, or else 
 they shall be utterly void, and of none efiect ; Provided, alvMys,
 
 APPENDIX. 467 
 
 that where any conveyance shall be made of any lands, mes- 
 suages, or tenements, by which a trust or confidence shall, or 
 may arise, or result, by the implication or construction of law, 
 or be transferred or extinguished by the act or operation of 
 law, then, and in every such case, such trust or confidence shall 
 be of the like force 'and efiect as the same would have been if 
 this statute had not been made, any thing herein contained to 
 the contrary thereof in any wise notwithstanding. 
 
 Sec. 3. All grants, conveyances, or assignments of trust or 
 confidence of, or in, any lands, tenements, or hereditaments, or 
 of any estate or interest therein, shall be by deed sealed and 
 delivered in the presence of two witnesses, by the party grant- 
 ing, conveying, or assigning the same, or by his or her attorney 
 or agent thereunto lawfully authorized, or by last will and tes- 
 tament duly made and executed, or else the same shall be void 
 and of none efiect. 
 
 Second Division. Tit. 4. Cap. 3. Sections 1, 2. 
 
 Sec. 1. !N"o action shall be brought whereby to charge any 
 executor or administrator upon any special promise to answer, 
 or pay any debt or damages out of his own estate, or whereby 
 to charge the defendant upon any special promise to answer 
 for the debt, default, or miscarriage of another person, or to 
 charge any person upon any agreement made upon considera- 
 tion of marriage, or upon any contract for the sale of lands, 
 tenements, or hereditaments, or of any uncertain interest in, 
 or concerning them, or for any lease thereof for a longer term 
 than one year, or upon any agreement that is not to be per- 
 formed within one year from the making thereof, unless the 
 agreement or promise upon which such action shall be brought, 
 ^or some note or memorandum thereof, shall be in writing and 
 signed by the party to be charged therewith, or by some other 
 person by him thereunto lawfully authorized. 
 
 Sec. 2. No contract for the sale of any personal property, 
 goods, wares, or merchandise shall be good, unless the buyer 
 shall accept the goods or part of them so sold, and actually re- 
 ceive the same or give something in earnest to bind the bar- 
 gain, or in part payment, or some note or memorandum in
 
 468 APPENDIX. 
 
 ■writing of the said bargain or contract be made, and signed by 
 the parties to be charged by such contract, or tlieir agents there- 
 nnto lawfully authorized. 
 
 GEORGIA. 
 
 In this State all the sections of the English statute con- 
 sidered in this work are in force. See the various titles ; also 
 T. R. Cobb's New Dig. Appendix III. 
 
 ILLINOIS. Revised Statutes, 1874. 
 Chaptek 59. Sections 1, 2, 9. 
 
 Sec. 1. No action shall be brought, whereby to charge any 
 executor or administrator upon any special promise to answer 
 any debt or damages out of his own estate, or whereby to 
 charge the defendant upon any special promise to answer for 
 the debt, default, or miscarriage of another person ; or to 
 charge any person upon any agreement made upon considera- 
 tion of marriage, or upon any agreement that is not to be per- 
 formed within the space of one year from the making thereof, 
 unless the promise or agreement upon which such action shall 
 be brought, or some note or memorandum thereof, shall be in 
 writing and signed by the party to be charged therewith, or 
 some other person thereunto by him lawfully authorized. 
 
 Sec. 2. No action shall be brought to charge any person 
 upon any contract for the sale of lands, tenements, or heredita- 
 ments, or any interest in or concerning them, for a longer term 
 than one year, unless such contract, or some memorandum or 
 note thereof, shall be in writing and signed by the party to be 
 charged therewith, or some other person thereunto by him law- 
 fully authorized. 
 
 Sec. 9. All declarations or creations of trusts or confidences 
 of any land?, tenements, or hereditaments, shall be manifested 
 and proved by some writing signed by the party who is by law
 
 APPENDIX. 409 
 
 enabled to declare such trust, or by his last will in writing ; or 
 else they shall be utterly void and of no eifect : Provided^ 
 That resulting trusts or trusts created by construction, implica- 
 tion, or operation of law, need not be in writing, and the same 
 may be proved by parol. 
 
 INDIANA. Revised Statutes, 1852. Gavin & Hord, 2d 
 Edition. Vol. I, 1870. 
 
 Chapter LXVI. Sections 1, 3, 3, 4, 5, 6, 7. 
 
 Sec. 1. iN'o action shall be brought in any of the following 
 cases : 
 
 First. To charge an executor or administrator upon any 
 special promise, to answer damages out of his own estate; 
 or 
 
 Second. To charge any person upon any special promise, 
 to answer for the debt, default, or miscarriage of another ; 
 or 
 
 Third. To charge any person,- upon any agreement or 
 promise, made in consideration of marriage ; or 
 
 Fourth. Upon any contract for the sale of lands ; or 
 
 Fifth. Upon any agreement that is not to be performed 
 within one year from the making thereof ; unless the promise, 
 contract, or agreement, upon which such action shall be brought, 
 or some memorandum or note thereof, shall be in writing, and 
 signed by the party to be charged therewith, or by some per- 
 son thereunto by him lawfully authorized ; excepting, however, 
 leases not exceeding the term of three years. 
 
 Sec. 2. The consideration of any such promise, contract, or 
 agreement, need not be set forth in such writing, but may be 
 proved. 
 
 Sec. 3. Every conveyance of any existing trust in lands, 
 goods, or things in action, unless the same shall be in writing, 
 signed by the party making the same, or his lawful agent, 
 shall be void. 
 
 Sec. 4. Nothing contained in any law of this State shall be
 
 470 APPENDIX. 
 
 construed to prevent any trust from arising or being extin- 
 guished by implication of law. 
 
 Sec. 5. Nothing contained in any statute of this State shall 
 be construed to abridge the powers of courts to compel the 
 specific performance of agreements in cases of part perform- 
 ance of such agreements. 
 
 Sec. 6. No action shall be maintained to charge any person 
 by reason of any representation made concerning the character, 
 conduct, credit, ability, trade or dealings of any other person, 
 unless such representation be made in writing and signed by 
 the party to be charged thereby, or by some person thereunto 
 by him legally authorized. 
 
 Sec. 7. No contract for the sale of any goods for the price 
 of fifty dollars or more shall be valid unless the purchaser shall 
 receive part of such property, or shall give something in. 
 earnest to bind the bargain or in part payment, or unless some 
 note or memorandum in writing of the bargain be made and 
 signed by the party to be charged thereby, or by some person 
 thereunto by him lawfully authorized. 
 
 IOWA. Code, 1873. 
 Sections 1933, 3663-3666. 
 
 Sec. 1933. Declarations or creations of trusts or powers in 
 relation to real estate must be executed in the same manner as 
 deeds of conveyance, but this provision does not apply to trusts 
 resulting from operation or construction of law. 
 
 Sec. 3663. Except when otherwise specially provided, no 
 evidence of any of the contracts enumerated in the next suc- 
 ceeding section, is coippetent, unless it be in writing and 
 signed by the party charged, or by his lawful authorized agent.. 
 
 Sec. 3664. Such contracts embrace : 
 
 J'ir.sL Those in relation to the sale of personal property, 
 when no part of the property is delivered, and no part of the 
 price is paid ; 
 
 Second. Those made in consideration of marriage, but not 
 'including promises to marry ;
 
 APPENDIX. 471 
 
 Third. Those wherein one person promises to answer for 
 the debt, default, or miscarriage of another, including promises 
 by executors to pay the debt of their principal from their own 
 estate ; 
 
 Fourth. Those for the creation or transfer of any interest 
 in lauds, except leases for a term not exceeding one year ; 
 
 Fifth. Those that are not to be performed within one year 
 from the making thereof. 
 
 Sec. 3665. The provision of the first subdivision of the 
 preceding section does not apply when the article of personal 
 property sold is not at the time of the contract owned by the 
 vendor and ready for delivery, but labor, skill, or money are. 
 necessarily to be expended in producing or procuring the 
 same ; nor do those of the fourth subdivision of said section. 
 apply where the purchase money or any portion thereof has 
 been received by the vendor, or when the vendee, with the 
 actual or implied consent of the vendor, has taken and held 
 possession thereof under and by virtue of the contract, or 
 when there is any other circumstance which by the law here- 
 tofore in force would have taken a case out of the statute of 
 frauds. 
 
 Sec. 3666. The above regulations, relating merely to the 
 proof of contracts, do not prevent the enforcement of those 
 which are not denied in the pleadings, unless in cases where 
 the contract is sought to be enforced, or damages to be recov- 
 ered for the breach thereof against some person other than him 
 who made it. 
 
 KANSAS. Compiled Laws, 18g8. 
 
 Chapter 34, Sections 4, 5. 
 
 Sec. 4. No leases, estates, or interests, either of freehold or 
 term of years, or any uncertain interests of, in, or out of lands, 
 tenements, or hereditaments, exceeding ten years in duration, 
 shall at any time hereafter be assigned or granted, unless it be 
 by deed or note, in writing, signed by the party so assigning or 
 granting the same, or their agents thereunto lawfully author- 
 ized, by writing, or by act and operation of law.
 
 472 APPENDIX. 
 
 Sec. 5. No action shall be brought, wliereby to charge the 
 defendant, npon any special promise, to answer for the debt, 
 default, or miscarriage of another person, or to charge any 
 executor or administrator, upon any special promise, to answer 
 damages out of his own estate, or to charge any person, upon 
 an agreement made upon consideration of marriage, or upon 
 any contract, or sale of lands, tenements, or hereditaments, or 
 any interest in or concerning them, or upon any agreement 
 that is not to be performed within the space of one year from 
 the making thereof, unless the agreement upon which such 
 action shall be brought, or some memorandum or note thereof, 
 shall be in writing, and signed by the party to be charged 
 therewith, or some other person thereunto by him or her law- 
 fully authorized. 
 
 KENTUCKY. General Laws, 1873 (Bullock & Johnson). 
 
 Chapter 24. Section 3. 
 
 Sec. 3. No estate of inheritance, or freehold, or for a term 
 of more than one year, in lands, shall be conveyed unless by 
 deed or will. 
 
 Chapter 22. Sections 1, 3. 
 
 Sec. 1. No action shall be brought to charge any person, 
 
 Firstly. For a representation or assurance concerning the 
 character, conduct, credit, ability, trade, or dealings of another, 
 made with intent that such other may obtain thereby credit, 
 money, or goods ; nor 
 
 Secondly. Upbn a promise to pay a debt contracted during 
 infancy, or a ratification of a contract or promise made during 
 infancy; nor 
 
 Thirdly. Upon a promise as personal representative to an- 
 swer any debt or damage out of his own estate ; nor 
 
 fourthly. Upon a promise to answer for the debt, default, 
 or misdoing of another ; nor 
 
 , Fifthly. Upon any agreement made in consideration of 
 marriage, except mutual promises to marry ; nor
 
 APPENDIX. 473 
 
 Sixthly. Upon any contract for the sale of real estate, or 
 any lease thereof for a longer term than one year; nor 
 
 Seventhly. Upon any agreement which is not to be per- 
 formed within one year from the making thereof; unless the 
 promise, contract, agreement, representation, assurance, or rati- 
 fication, or some memorandum or note thereof, be in writing, 
 and signed at the close thereof by the party to be charged 
 therewith, or by his authorized agent. But the consideration 
 need not be expressed in the writing ; it may be proved when 
 necessary, or disproved by parol or other evidence. 
 
 Sec. 2. A seal or scroll shall in no case be necessary to 
 give efi^ect to a deed or other writing, but a signature without 
 seal shall have the same efficacy for every purpose, as if a seal 
 were affixed thereto; and all writings so executed shall stand 
 upon the same footing with sealed writings, having the same 
 force and effect, and upon which the same actions may be 
 founded. But this section shall not apply.to an assignment 
 by indorsement on a bond, note, or bill. 
 
 MAINE. Revised Statutes, 1871. 
 Title VII. Chapter 73. Sections 10, 11. P. 563. 
 
 Sec. 10. There can be no estate created in lands greater 
 than a tenancy at will, and no estate in them can be granted, 
 assigned or surrendered unless by i^ome writing, signed by the 
 party or his attorney. 
 
 Sec. 11. There can be no trust concerning lands, except 
 trusts arising or resulting by implication of law, unless created 
 or declared by some writing, signed by the party or his attorney. 
 
 Title IX. Chapter 3. Sections 1, 3, 3, 4. P. 786. 
 
 Sec. 1. JS^o action shall be brought and maintained in any 
 of the following cases : 
 
 First. To charge an executor or administrator, upon any 
 special promise to answer damages out of his own estate. 
 
 Second. To charge any person, upon any special promise, 
 to answer for the debt, default, or misdoings of another.
 
 474 APPENDIX. 
 
 Third. To char<^e any person, upon an at^reement made in 
 consideration of marriage. 
 
 Fourth. Upon any contract for the sale of lands, tenements, 
 or hereditaments, or of any interest in or concerning them. 
 
 Fifth. Upon any agreement that is not to be performed 
 within one year from the making thereof. 
 
 Sixth. Upon any contract to pay a debt after a discharge 
 therefrom under the bankrupt laws of the United States, or 
 assignment laws of this State. 
 
 Unless the promise, contract, or agreement, upon which 
 such action shall be brought, or some memorandum or note 
 thereof, shall be in writing, and be signed by the party to be 
 charged therewith, or by some person thereunto lawfully 
 authorized; but the consideration thereof need not be ex- 
 pressed therein, but may be proved otherwise. 
 
 Sec. 2. No action shall be maintained on any contract, 
 made by a minor, unless he, or some person lawfully author 
 ized, ratified it in writing, after he arrived at the age of twenty- 
 one years, except for necessaries, or real estate, of which he 
 has received the title and retains the benefit. 
 
 Sec. 3. No action shall be maintained to charge any person 
 by reason of any representation or assurance, made concerning 
 the character, conduct, credit, ability, trade, or dealings oi an- 
 other unless made in writing, and signed by the party to be 
 charged thereby, or by some person by him lawfully authorized. 
 
 Sec. 4. No contract fos the sale of any goods, wares, or 
 merchandise, for the price of thirty dollars or more, shall be 
 valid, unless the purchaser accepts and receives part of the 
 goods, or gives something in earnest to bind the bargain, or in 
 part payment thereof, or some note or memorandum thereof, is 
 made and signed by the party to be charged thereby, or by 
 his agent. 
 
 MARYLAND. 
 
 In this State all the sections of the English statute con- 
 sidered in this work are in force. See the various titles ; also, 
 Alexander's Kilty's Keport of English Statutes, Art. Statute of 
 Frauds.
 
 APPENDIX. 475 
 
 MASSACHUSETTS. General Statutes, 1860. Part II. 
 
 TiTiiE 1. Chapter 89. 
 
 Sec. 2. Estates or interests in lands, created or conveyed 
 without any instrument in writing, signed by the grantor or 
 by his attorney, &b.^\ have the force and effect of estates at 
 will only ; and no estate or interest in lands shall be assigned, 
 granted, or surrendered, unless by a writing signed as afore- 
 said, or by the operation of law. 
 
 Title 4, Chapter 100. 
 
 Sec. 19. No trust concerning lands, excepting such as may 
 arise or result by implication of law, shall be created or declared, 
 unless by an instrument in writing, signed by the party creat- 
 ing or declaring the same, or by his attorney. 
 
 Title 6. Chapter 105. 
 
 Sec. 1. No action shall be brought in any of the following 
 cases, that is to say : 
 
 ■ jp'irsi. To charge an executor or administrator or assignee, 
 under any insolvent law of this commonwealth, upon any special 
 promise to answer damages out of his own estate ; . 
 
 /Second. To charge any person, upon any special promise, to 
 answer for the debt, default, or misdoings of another ; 
 
 Third. To charge any person, upon an agreement made 
 upon consideration of marriage ; 
 
 Fourth. Upon any contract for the sale of lands, tenements, 
 or hereditaments, or of any interest in or concerning them ; 
 
 Fifth. Upon any agreement that is not to be performed 
 within one year from the making"thereof ; 
 
 'Unless the promise, contract, or agreement, upon which 
 such action shall be brought, or some memorandum or note 
 thereof, shall be in writing, and signed by the party to be 
 charged therewith, or by some person thereunto by him law- 
 fully authorized. 
 
 Sec. 2. The consideration of any such promise, contract, or
 
 476 APPENDIX. 
 
 agreement, need not be set forth or expressed in the writing, 
 signed by the party to be charged therewith, but may be proved 
 by any other legal evidence. 
 
 Sec. 3. No promise for the payment of any debt made by 
 an insolvent debtor, who has obtained his discharge from said 
 debt under proceedings in bankruptcy or insolvency, shall be 
 evidence of a new or continuing contract, whereby to deprive 
 a party of the benefit of relying upon such discharge in bar of 
 the recovery of a judgment upon such debt, unless such promise 
 is made by or contained in some writing signed by the party 
 sought to be charged, or by some person thereunto by him law- 
 fully authorized ; but this section shall not apply to such promise 
 made prior to the fifteenth day of March in the year eighteen 
 hundred and fifty-six. 
 
 Sec. 4. No action shall be brought to charge any person, 
 upon or by reason of any representation or assurance, made 
 concerning the character, conduct, credit, ability, trade, or deal- 
 ings of any other person, unless such representation or assur- 
 ance be made in writing, and signed by the party to be charged 
 thereby, or by some person thereunto by him lawfully author- 
 ized. 
 
 Sec. 5. No contract for the sale of goods, wares or merchan- 
 dise, for the price of fifty dollars or more, shall be good or valid, 
 unless the purchaser accepts and receives part of the goods so 
 sold, or gives something in earnest to bind the bargain, or in 
 part payment ; or unless some note or memorandum in writing 
 of the bargain is made and signed by the party to be charged 
 thereby, or by some person thereunto by him lawfully author- 
 ized. 
 
 GeneraI, Statutes. Chapter 3, Section 7, Clause 20. 
 
 Li the construction of statutes, ^ * * tlie words " writ- 
 ten" and "in writing" may include printing, engraving, litho- 
 graphing, and any other mode of representing words and let- 
 ters ; but when the written signature of a person is required 
 by law, it shall always be the proper handwriting of such per- 
 son, or, in case he is unable to write, his proper mark.
 
 APPENDIX. 477 
 
 MICHIGAN. Compiled Laws, 1871. 
 Title 27. Chapter 166. Sections 6, 7, 8, 9, 10. 
 
 Sec. 6. No estate or interest in lands, other than leases for 
 a term not exceeding one year, nor any trust or power over or 
 concerning lands, or in any manner relating thereto, shall here- 
 after be created, granted, assigned, surrendered, or declared, 
 unless by act or operation of law, or by a deed or^conveyance 
 in writing, subscribed by the party creating, granting, assign- 
 ing, surrendering, or declaring the same, or by some person 
 thereunto by him lawfully authorized by writing. 
 
 Sec. 7. The preceding section shall not be construed to af- 
 fect in any manner the power of a testator in the disposition of 
 his real estate, by a last will and testament ; nor to prevent any 
 trust from arising, or being extinguished, by implication or 
 operation of Islw. 
 
 Sec. 8. Every contract for the leasing for a longer period 
 than one year, or for the sale of any lands, or any interest in 
 lands, shall be void, unless the contract, or some note or mem- 
 orandum thereof, be in writing, and signed by^the party by 
 whom the lease or sale is to be made, or by some person there- 
 unto by him lawfully authorized by writing. 
 
 Sec. 9. The consideration of any contract or agreement, re- 
 quired by the provisions of this chapter to be in writing, need 
 not be set forth in the contract or agreement, or in the note or 
 memorandum thereof, but may be proved by any other legal 
 evidence. 
 
 Sec. 10. Nothing in this chapter contained, shall be con- 
 strued to abridge the powers of the Court of Chancery to com- 
 pel the specific performance of agreements, in cases of part per- 
 formance of such agreements. 
 
 Title 27. .Chapter 167. Sections 2, 3, 4, 5, 6. 
 
 Sec. 2. In the following cases specified in this section, every 
 agreement, contract, and promise shall be void, unless such 
 agreement, contract, or promise, or some note or memorandum 
 thereof, be in writing, and signed by the party to be charged
 
 478 APPENDIX, 
 
 tlierewith, or by some person by him thereunto Lawfully author- 
 ized, that is to say : 
 
 1. Every agreement that, by its terms, is not to be per- 
 formed in one year from the making thereof 
 
 2. Every special promise to answer for the debt, default, or 
 misdoings of another person. 
 
 3. Every agreement, promise, or undertaking, made upon 
 consideration of marriage, except mutual promises to marry. 
 
 4. Everj special promise made by an executor or adminis- 
 trator, to answer damages out of his own estate. 
 
 Sec. 3. No contract for the sale of any goods, wares, or 
 merchandise, for the price of fifty dollars or more, shall be 
 valid, unless the purchaser shall accept and receive part of the 
 goods sold, or shall give something in earnest, to bind the bar- 
 gain or in part payment, or unless some note or memorandum 
 in writing of the bargain be made, and signed by the party to 
 be charged thereby, or by some person thereunto by him law- 
 fully authorized. 
 
 Sec. 4. Whenever any goods shall be sold at auction, and 
 the auctioneer shall, at the time of sale, enter in a sale-book, a 
 memorandum* specifying the nature and price of the property 
 sold, the terms of the sale, the name of the purchaser, and the 
 name of the person on whose account the sale is made, such 
 memorandum shall be deemed a memorandum of the contract 
 of sale, within the meaning of the last section. 
 
 Sec. 5. No action shall be brought to charge any person, 
 upon or by reason of any favorable representation or assurance, 
 made concerning the character, conduct, credit, ability, trade, 
 or dealings of any other person, unless such representation or 
 assurance be made in writing, and signed by the party to be 
 charged thereby, or by some person thereunto by him lawfully 
 authorized. 
 
 Sec. 6. The consideration of any contract, agreement, or 
 promise, required by this chapter to be in writing, need not be 
 expressed in the written contract, agreement or promise, or in 
 any note or memorandum thereof, but may be proved by any 
 other leffal evidence.
 
 APPENDIX. 479 
 
 MINNESOTA. SiATutEs at Large, 1873. 
 Chapter 36. Title 3. Sections 6, 7, 8, 9, 10, 11, 13, 13. 
 
 Sec. 6. No action shall be maintained in either of the fol- 
 lowing cases upon any agreement, unless such agreement, or 
 some note or memorandum thereof, expressing the considera- 
 tion, is in writing, and subscribed by the partj charged there- 
 with. 
 
 First. Every agreement that bj its terms is not to be per- 
 formed within one year from the making thereof. 
 
 Second. Every special promise to answer for thef debt, de- 
 fault, or doings of another. 
 
 Third. Every agreement, promise, or undertaking made 
 upon consideration of marriage, except mutual promise to 
 marry. 
 
 Sec. 7. Every contract for the sale of goods, chattels, or 
 things in action for the price of $50 or more, shall be void ; 
 unless. 
 
 First. A note or memorandum of such contract is made in 
 writing and subscribed by the parties to be charged there- 
 with ; or. 
 
 Second. Unless the buyer accepts and receives part of such 
 goods, or the evidences or some of them, of such things in 
 action ; or, 
 
 Third. Unless the buyer at the time pays some part of the 
 purchase money. * 
 
 Sec. 8. Whenever goods are sold at public auction, and the 
 auctioneer at the time of sale, enters into a sale-book, a memo- 
 randum specifying the nature and price of the property sold, 
 the terms of the sale, name of the purchaser, ai^ name of the 
 person on whose account the sale is made, such memorandum 
 shall be deemed a note of the contract of sale, within the mean- 
 ing of the last section. 
 
 Sec. 9. Every grant, or assignment of any existing trust in 
 goods, or things in action, unless the same is in writing, sub- 
 scribed by the party making same, or by his agent lawfully 
 authorized, shall be void. 
 
 Sec. 10. No estate, or interest in lands, other than leases
 
 480 APPENDIX. 
 
 for a term not exceeding one year, nor any trust or power over 
 or concerning lands, or in any manner relating thereto, shall 
 hereafter be created, granted, assigned, surrendered, or declared, 
 unless by an act or operation of law, or by deed or conveyance, 
 in writing, subscribed by the parties creating, granting, assign- 
 ing, surrendering, or declaring the same, or by their lawful 
 agent, thereunto authorized, by writing. 
 
 Sec. 11. The preceding section shall not be construed ta 
 affect in any manner, the power of a testator, in the disposition 
 of his real estate by a last will and testament, nor to prevent 
 any trust from arising, or being extinguished by implication or 
 operation of law. 
 
 Sec. 12. Every contract for the leasing for a longer period 
 than one year, or for the sale of any lands, or interest in lands, 
 shall be void, unless the contract or some note or memorandum 
 thereof, expressing the consideration in writing, and subscribed 
 by the party by whom the lease or sale is to be made, or by his 
 authorized agent. 
 
 Sec. 13, Nothing in this chapter contained shall be con- 
 strued to abridge the power of courts of equity to compel the 
 specific performance of any agreement in cases of part perform- 
 ance of such ao;reeraents. 
 
 MISSISSIPPI. Revised Code, 1871. 
 
 Chapter 60. Art. 1. Sections 2892, 2895, 2896, 2897, 2898. 
 
 Sec. 1. No action shall be brought whereby to charge any 
 executor or administrator, upon any special promise, to answer 
 any debt or (Jamage, out of his own estate; or whereby to 
 charge the defendant npon any special promise, to answer for 
 the debt, default, or miscarriage of another person, or to charge 
 any person upon any agreement made upon consideration of 
 marriage or upon any contract for the sale of lands, tenements, 
 and hereditaments, or the making any lease thereof for a longer 
 term than one year, or upon any agreement that is not to be 
 performed within the space of one year from tlie making thereof, 
 unless the promise or agreement upon which such action shall
 
 APPENDIX. 481 
 
 be brought, or some memorandum or note, thereof, shall be in 
 ■writing, and signed by tlie party to be charged therewith, or 
 some other person by him or her thereunto lawfully authorized. 
 
 MISSOURI. Wagner's Missouri Statutes, 1872. 
 Chapter 62. Vol. I. Page 655. 
 
 Sec. 1. All leases, estates, interests of freehold, or terms of 
 years, or any uncertain interest of, in, to, or out of any mes- 
 suages, lands, tenements, or hereditaments, made or created by 
 livery and seizin only, or by parol, and not put in writing and 
 signed by the parties so making or creating the same, or their 
 agents lawfully authorized by writing, shall have the force and 
 effect of leases or estates at will only, and shall not, either in 
 law or eqnity, be deemed or taken to have any other or greater 
 force. 
 
 Sec. 2, No leases, estates, interests, either of freehold or of 
 terms of years, or any uncertain interest of, in, to, or out of any 
 messuages, lands, tenements, or hereditaments, shall at any 
 time hereafter be assigned, granted or surrendered, unless it be 
 by deed or note in writing, signed by the party so assigning, 
 granting or sui-rendering the same, or their agents lawfully 
 authorized by writing, or by operation of law. 
 
 Sec. 3. All declarations or creations of trusts or confidences 
 ♦ of any lands, tenements, or hereditaments, shall be manifested 
 and proved by some writing, signed by the party who is, or 
 shall be, by law enabled to declare such trusts, or by his last 
 w^ill in writing, or else they shall be void ; and all grants and 
 assignments of any trust or confidence shall be in writing, 
 signed by the party granting or assigning the same, or by his 
 or her last will in writing, or else they shall be void. 
 
 Sec. 4. Where any conveyance shall be made of any lands, 
 tenements, or hereditaments, by which a trust or confidence 
 may arise, or result by implication of law, such trust or confi- 
 dence shall be of like force, as the same would have been if 
 the act had not been made. 
 31
 
 482 APPENDIX. 
 
 Sec. 5. Ko action shall be brouglit to charge any executor 
 or administrator upon any special ])roniise to answer for any 
 debt or damages out of his own estate, or to charge any person 
 upon any special promise to answer for the debt, default, or 
 miscarriage of another person; or to charge any person upon 
 any agreement made in consideration of marriage, or upon any 
 contract for the sale of lands, tenements, or hereditaments, or 
 any interest in, or concerning them, or any lease thereof for a 
 longer time than one year, or upon any agreement that is not 
 to be performed within one year from the making thereof; un- 
 less the agreement upon which the action shall be brought, or 
 some memorandum or note thereof, shall be in writing, and 
 signed by the party to be charged therewith, or some other 
 person by him thereto lawfully authorized. 
 
 Sec, 6. No contract for the sale of goods, wares and mer- 
 chandise, for the price of thirty dollars or upwards, shall be al- 
 lowed to be good, except the buyer shall accept part of the 
 goods so sold, and actually receive the same, or give something 
 in earnest to bind the bargain, or in part payment, or unless 
 some note or memorandum in writing be made, and signed by 
 the parties to be charged with such contract, or their agents 
 lawfully authorized. 
 
 Sec. 7. No action shall be brought to charge any person 
 upon, or by reason of, any representation or assurance made 
 concerning the character, conduct, credit, ability, trade or deal- 
 ings of any other person, unless such representation or assur- 
 ance be made in writing, and subscribed by the party to be 
 charged thereby, or by some person thereunto by him lawfully 
 authorized. 
 
 NEBRASKA. General Statutes, 1873. 
 Chapter 25. Sections 8, 9, 10, 18, 34, 25. 
 
 Sec. 8. In the following cases every agreement shall be 
 void, unless such agreement, or some note or memorandum 
 thereof, be in writing, and subscribed by the party to be 
 charged therewith :
 
 APPENDIX. 483 
 
 First. Every agreement that, by its terms, is not to be per- 
 formed within one year from the making thereof ; 
 
 Second. Every special promise to answer for the debt, de- 
 fault or misdoing of another person ; 
 
 Third. E\'ery agreement, promise or undertaking made 
 upon consideration of marriage, except mutual promise to 
 marry ; 
 
 Fourth. Every special promise, by an executor or adminis- 
 trator, to answer damages out of his own estate. 
 
 Skc. 9. Every contract for the sale of any goods, chattels or 
 things in action, for the price of $50 or more shall be void, 
 unless — 
 
 First. A note or memoraudum of such conti*act be made, 
 in writing, and be subscribed by the party to be charged there- 
 by ; or 
 
 Second. Unless the buyer shall accept and receive part of 
 such goods, or evidences, or some of them, of such things in 
 action ; or 
 
 Third. Unless the buyer shall, at the time, pay some of the 
 purchase money. 
 
 Skc. 10. Whenever goods shall be sold at public auction, 
 and the auctioneer shall, at the time of sale, enter in a sale- 
 book a memorandum specifying the nature and price of the 
 property sold, the terms of the sale, and the name of the pur- 
 chaser, and the name of the person on whose account the sale 
 is made, such memorandum shall be deemed a note of the con- 
 tract of sale within the meaning of the last section. 
 
 Skc. 18. Every grant or assignment of any existing trust in 
 lands, goods, or things in action, unless the same shall be in 
 writing, subscribed by the party making the same, shall be void. 
 
 Sec. 24. The consideration of any contract or agreement 
 required by the provisions of this chapter to be in writing, 
 need not to be set forth in the contract or agreement, or in the 
 note or memorandum thereof, but may be proved by any other 
 legal evidence. 
 
 Skc. 25. Every instrument required by any of the provisions 
 of this chaptei' to be subscribed by any party, may be subscribed 
 by his agent, thereunto authorized by writing.
 
 484 ArrENDix. 
 
 NEVADA. Laws, 1801. 
 Chapter 9. Sections 55, 56, 57, 58, 59, 61, 62, 63, 70. 
 
 Sec. 55. No estate or interests in lands, other tlian for 
 leases for a term not exceeding one year, nor any trust or 
 power over or concerning lands, or in any manner relating 
 thereto, shall hereafter be created, granted, assigned, or surren- 
 dered, or declared, unless by an act or operation of law, or by 
 deed or conveyance, in writing, subscribed by the party creat- 
 ing, granting, assigning, surrendering, or declaring the same, 
 or by his agent thereunto authorized in writing. 
 
 Sec. 5G. The preceding section shall not be construed to 
 affect, in any manner, the power of a testator, in the disposi- 
 tion of his real estate, by a last will or testament, nor to pre- 
 vent any trust from arising, or being extinguished by implica- 
 cation or operation of law. 
 
 Sec. 57. Every contract for the leasing for a longer period 
 than one year, or for the sale of any lands, or any interests in 
 lands, shall be void, unless the contract, or some note or mem- 
 orandum thereof, expressing the consideration, be in writing, 
 and be subscribed by the party by whom the lease or sale is to 
 •be made. 
 
 Sec. 58. -Every instrument required to be subscribed, by 
 any person under the last preceding section, may be subscribed 
 by the agent of such party, lawfully authorized. 
 
 Sec. 69. Nothing contained in this act shall be construed 
 to abridge the powers of courts to compel the specific perform- 
 ance of agreements in cases of part performance of such agree- 
 ments. 
 
 Sec. 01. In the following cases every agreement shall be 
 void, unless such agreement or some note, or memorandum 
 thereof, expressing consideration, be in writing, and subscribed 
 by the party charged therewith, — 
 
 First. Every agreement that by terms is not to be performed 
 within one year from the making thereof ; 
 
 Second. Every special promise to answer for the debt, de- 
 fault, or miscarriage of another; 
 
 Third. Every agreement, promise, or undertaking made
 
 APPENDIX. 485 
 
 upon consideration of marriage, except mutual promise to 
 marry. 
 
 Sec. 62. Every contract for the sale of any goods, chattels, 
 or things in action, for the price of $50 or more, shall be void, 
 unless — 
 
 First. A note or memorandum of such contract be made 
 in writing, and be subscribed by the the parties to be charged 
 therewith ; 
 
 Second. Unless the buyer shall accept or receive part of 
 such goods, or the evidences, or some of them, of such things 
 in action ; or 
 
 Third. Unless the buyer shall, at the time, pay some of the 
 purchase money. 
 
 Sec. 63. Wlienever goods shall be sold at auction, and the 
 auctioneer shall, at the time of sale, enter in a sale-book a 
 Tnemorandum specifying the nature and price of the property 
 sold, the terms of the sale, name ot the purchaser, and the 
 name of the person on whose account the sale is made, such 
 memorandum shall be deemed a note of contract of the sale, 
 within the meaning of the last section. 
 
 Sec. 70. Every grant or assignment of any existing trusts 
 in lands, goods, or things in action, unless the same shall be 
 in writing, subscribed by the party making the same, or by his 
 agent lawfully authorized, shall be void. 
 
 NEW HAMPSHIRE. General Statutes, 1867. 
 Chapter 121. Sections 12, 13. 
 
 Sec. 12. Every estate or interest in lands, created or con- 
 veyed without an instrument in writing sigi^d by the grantor 
 or his attorney, shall be deemed an estate at will only, and no 
 estate or interest in land shall be assigned, granted, or sur- 
 rendered, except by writing signed as aforesaid, or by opera- 
 tion of law. 
 
 Sec. 13. No trust concerning lands, except such as may 
 arise or result by implication of law, shall be created or de-
 
 486 APPENDIX. 
 
 clared, unless bj an instrument 'signed by the party creating- 
 the same, or by his attorney. 
 
 Chapter 201. Sections 12, 13, 14. 
 
 Sec. 12. No action shall be maintained upon a contract for 
 the sale of land, unless the agreement upon which it is brought, 
 or some memorandum thereof, is in writing signed by the party 
 to be charged, or by some person by liim thereto authorized by 
 writing. 
 
 Sec. 13. No action shall be brought to charge an executor or 
 administrator upon a special promise to answer damages out of 
 his own estate ; nor to charge any person upon a special prom-, 
 ise to answer for the debt, default, or miscarriage of another ; or 
 upon an agreement made upon consideration of marriage ; or 
 that it is not to be performed within one year from the time of 
 making it, unless such promise or agreement, or some note or 
 memorandum thereof is in writing and signed by the party to 
 be charged, or by some person by him thereto lawfully author- 
 ized. 
 
 Sec. 14. No contract for the sale of any goods, wares, or 
 merchandise, for the price of thirty-three dollars or more, is 
 valid, unless the buyer accepts and actually receives part of the 
 property sold, or gives something in part payment, or in earn- 
 est to bind the bargain, or unless some note or memorandum 
 thereof is in writing, and signed by the party to be charged, 
 or by some person by him thereto authorized. 
 
 NEW JERSEY. Revised Statutes, 1874. 
 
 Title, Frauds.— An Act for the Prevention op Frauds and Perju- 
 ries. Page 299. 
 
 Sec. 1. All leases, estates, interests of freehold or terms of 
 years, or any uncertain interests of, in, to, or out of any mes- 
 suages, lands, tenements, or hereditaments, made or created, or 
 hereafter to be made or created, by livery and seizin only, or 
 by parol, and not put in writing, and signed by the parties so 
 making or creating the same, or their agents thereunto law-
 
 ArPENDIX. 487 
 
 fully authorized by writing, shall have the force and eflect of 
 leases or estates at will only, and shall not, either in law or 
 equity, be deemed or taken to have any other or greater force 
 or effect, any consideration for making sndh parol leases or 
 estates notwithstanding ; except, nevertheless, all leases not 
 exceeding the term of three years from the making thereof. 
 
 Sec. 2. No lease, estate, or interest, either of freehold or 
 term of years, or any uncertain interest of, in, to, or out of any 
 messuages, lands, tenements, or hereditaments, shall at any 
 time hereafter be assigned, granted or surrendered, unless it be 
 by deed or note in writing, signed by the party so assigning, 
 granting, or surrendering the same, or his, her, or their agent 
 or agents, thereunto lawfully authorized by writing, or by act 
 and operation of law. 
 
 Sec. 3. All declarations or creations of trusts or confidences 
 of any lands, tenements or hei'editaments, shall be manifested 
 and proved by some writing, signed by the party w^o is or shall 
 be by law enabled to declare such trust, or by his or her last will 
 in writing, or else they shall be utterly void and of no effect ; 
 Provided always, that where any conveyance hath been or shall 
 be made of any lands, tenements or hereditaments, by which a 
 trust or confidence shall or may arise or result by construction 
 or implication of law, or be transferred or extinguished by 
 act or operation of law, then and in every such case, such trust 
 and confidence shall be of the like force and effect as the same 
 would have been if this act had not been made. 
 
 Sec. 4. All grants and assignments of any trust or confi- 
 dence shall be in writing, signed by the party granting or as- 
 signing the same, or by his or her last will in writing, or else 
 shall likewise be utterly void and of no effect. 
 
 Sec. 5. No action shall be brought, (1) ^o charge any exec- 
 utor or administrator, upon any special promise, to answer 
 damages out of his own estate ; or (2) to charge tlie defendant, 
 upon any special promise, to answer for the debt, default or 
 miscarriages of another person ; or (3) to charge any person 
 upon any agreenTact made upon consideration of marriage ; or 
 (4) upon any contract or sale of lands, tenements or heredita- 
 ments, or any interest in or concerning them ; or (5) upon any
 
 488 APPENDIX. 
 
 agreement that is not to be performed within the space of one 
 year from tlie making thereof, unless the agreement upon 
 •which such action shall be brought, or some memorandum or 
 note thereof, shaH be in writing, and signed by the party to be 
 charged therewith, or some other person thereunto by him or 
 her lawfully authorized. 
 
 Sec. 6. Every contract for the sale of any goods, wares or 
 merchandise, for the price of thirty dollars or upwards, shall 
 be void, unless (1) a- note or memorandum of such contract be 
 made in writing, and signed by the party to be charged there- 
 by, or by his agent thereunto lawfully authorized, or (2) unless 
 the buyer shall accept part of the goods so sold, and actually 
 receive the same, or give something in earnest to bind the bar- 
 gain, or pay some part of the purchase money. 
 
 Sec. 7, 'No action shall be maintained to charge any person, 
 upon any promise made after full age, to pay any debt con- 
 tracted during infancy, to which infancy would be a defense, 
 unless such promise be put in writing, and signed by the party 
 to be charged therewith. 
 
 Sec. 8. No action shall be maintained against any person 
 who may have been discharged as a bankrupt under the laws 
 of the United States, upon any promise made, after such dis- 
 charge, to pay any debt or demand from winch he was or shall 
 be released by such discharge, unless such promise be put in 
 writing and signed by the party to be charged therewith. 
 
 Sec. 9. The consideration of any promise, contract, or 
 agreement required by this act to be put in writing, need not 
 be set forth or expressed in such writing, but may be proved 
 by any other legal evidence. 
 
 Sec. 10. No broker or real estate agent, selling or exchang- 
 ing land for or oji account of the owner, shall be entitled to 
 any commission for the sale or exchange of any real estate, 
 unless the authority for selling or exchanging such land is in 
 writing, and signed by the owner or his authorized agent, and 
 the rate of commission on the dollar shall have been stated in 
 such authority. ••
 
 APPENDIX. 489 
 
 NEW YORK. Revised Statutes, 1859, Vol. Ill, Part II. 
 Chapter 7. Title 1. Sections 6, 7, 8, 9, 10. 
 
 Sec. 6. No estate or interest in lands, other than leases for 
 a term not exceeding one year, nor any trust or power over or 
 concerning lands, or in any manner relating thereto, shall here- 
 after be created, granted, assigned, surrendered, or declared, 
 unless by act or operation of law, or by a deed or conveyance in 
 writing, subscribed by the party creating, granting, assigning, 
 surrendering, or declaring the same, or by his lawful agent 
 thereunto authorized, by writing. 
 
 Sec. 7. The preceding section shall not be construed to 
 affect, in any manner, the power of a testator in the disposition 
 of his real estate by a last will and testament ; nor to prevent 
 any trust from arising or being extinguished by implication or 
 operation of law ; [nor to prevent any declaration of trust from 
 being proved by any writing subscribed by the party deliver- 
 ing the same ;] * nor to prevent, after a fine shall have been 
 levied, the execjition of a deed or other instrument, in writing, 
 declaring the uses of such fine. 
 
 Sec. 8. Every contract for the leasing for a longer period than 
 one year, or for the sale of any lands, or any interest in lands, 
 shall be void, unless the contract, or some note or memorandum 
 thereof, expressing the consideration, be in writing, and be 
 subscribed by the party by whom the lease or sale is to be 
 made. 
 
 Sec. 9. Every instrument required to be subscribed by any 
 party, under the last preceding section, may be subscribed by 
 the agent of such party lawfully authorized. 
 
 Sec. 10. Nothing in this title contained shall be construed 
 to abridge the powers of courts of equity to compel the specific 
 performance of agreements, in cases of part performance of 
 such agreements. 
 
 Title 2. Sections 3, 3, 4. 
 
 Sec. 2. In the following cases every agreement shall be 
 void, unless such agreement, or some note or memorandum 
 
 * Laws of 1863, chap. .322, p. 547.
 
 490 APPENDIX. 
 
 thereof (expressing the consideration),* be in writing, and sub- 
 scribed by the party to be charged tJierewith : 
 
 1. Every agreement that, by its terms, is not to be per- 
 formed within one year from the makinor thereof. 
 
 2. Every special promise to answer for tlie debt, default, 
 or miscarriage of another person ; 
 
 3. Every agreement, promise, or undertaking, made upon 
 consideration of marriage, except mutual promises to marry. 
 
 Sec. 3. Every contract for the sale of any goods, chattels, 
 or things in action, for the price of fifty dollars or more, shall 
 be void, unless, 
 
 1. A note or memorandum of such contract be made in 
 writing, and be subscribed by the parties to be charged 
 thereby ; or 
 
 2. Unless the buyer shall accept and receive part of such 
 goods or the evidences, or some of them, of such things in ac- 
 tion ; or 
 
 3. CTnless the buyer shall, at the time, pay some part of the 
 purcliase money. * 
 
 Sec. 4. Whenever goods shall be sold at public auction, and 
 the auctioneer shall, at the time of sale, enter in a sale-book, a 
 memorandum specifying the nature and price of the property 
 sold, the terms of the sale, the name of the purchaser, and the 
 name of the person on whose account the sale is made, such 
 memorandum shall be deemed a note of the contract of sale, 
 within the meaning of the last section. 
 
 Laws op 1863. Chapter 464. • Page 802. 
 
 Sec. ] . The second section of title two, chapter seven, part 
 two of the Revised Statutes, is hereby amended so as to read 
 as follows : 
 
 2. In the following cases every agreement shall be void, un- 
 less such agreement be in writing, and subscribed by the party 
 to be charged therewith : 
 
 1. Every agreement that, by its terms, is not to be per- 
 formed within one year from the making thereof. 
 
 * Repealed by Act of 1863, following.
 
 APPENDIX. 491 
 
 2. Every special promise to answer the debt, default, or 
 miscarriage of another person. 
 
 3. Every agreement, promise, or undertaking made upon 
 consideration of marriage, except mutual promise to marry. 
 
 NORTH CAROLINA. Battle's Revisal, 1873. 
 Chapter 50. Sections 8, 10. 
 
 Sec. 8. No action shall be brought whereby to charge any 
 executor or administrator, upon a special promise, to answer 
 damages out of his own estate, or to charge the defendant upon, 
 any special promise to answer the debt, default or miscarriage 
 of another person, unless the agreement upon which such action 
 shall be brought, or some memorandum or note thereof, shall 
 be in writing and signed by the party to be charged therewith, 
 or some other person thereunto by him lawfully authorized. 
 
 Sec. 10. All contracts to sell or convey any lands, tene- 
 ments, or hereditaments, or any interest in or concerning them, 
 or any slave or slaves, shall be void and of no eifect, unless 
 such contract, or some memorandum or note thereof, shall be 
 put in writing, signed b}' the party to be charged- therewith, 
 or by some other person, by him thereto lawfully authorized, 
 except nevertheless contracts for leases not exceeding in dura- 
 tion the term of three years. 
 
 OHIO. Revised Statutes. Swan & Critchfield's Ed. 1870. 
 Chapter 47. Sections, 4, 5. 
 
 Sec. IY. ]N"o leases, estates, or interests, either of freehold 
 or terms for years, or any uncertain interest of, in, or out of 
 lands, tenements, or hereditaments, shall at any time hereafter 
 be assigned, or granted, unless it be by deed, or note in writ- 
 ing, signed by the party so assigning or granting the same, or 
 their agents thereunto lawfully authorized, by writing, or by 
 act and operation of law. 
 
 Sec. Y. No action shall be brought whereby to charge the
 
 492 APPENDIX. 
 
 defendant, upon any special pi»omise, to answer for the debt, 
 dcfanlt, or miscarriage, of another person ; or to charge any 
 execntor or administrator n])oii any special promise, to answer 
 damages out of his own estate ; or to charge any person upon 
 any agreement made in consideration of marriage, or upon any 
 contract or sale o^ lands, tenements, or hereditaments, or any 
 interest in, or concerning of them ; or upon any agreement 
 that is not to he performed within the space of one year from 
 the making thereof; unless the agreement upon which such 
 action shall he brought, or some memorandum or note thereof, 
 'shall be in writing, and signed by the party to be charged 
 therewith, or some other person, tliereunto by him or her law- 
 fully authorized. 
 
 ]^OTE. — By an act which took effect October 1, 1795 (Chase, 
 190), the common law of England, all statutes and acts of par- 
 liament made in aid of the common law, prior to the fourth 
 year of the reigri of King James J>, and which were of a gen- 
 eral nature, not local to that kingdom, were declared to be the 
 rule of decision, and considered as of full force until repealed, 
 &c., or disapproved of by Congress. See Chase, 218, 238, 293, 
 48i, 512. 
 
 A like statute was passed February 14, 1805, and which 
 took effect June 1, 1805 (Chase, 512), and was repealed Janu- 
 ary 2, 1806 (Chase, 528). 
 
 See Lindsley v. Coates, 1 Hammond, 243. 
 
 OREGON. General Laws (Deady & Lane), 1843-1872. 
 
 (Civil Code.) Title 8. Chapter 8. Sections 771, 772, 775, 776. 
 
 Sec. 771. iS^o estate or irfterest in real property other than 
 a lease for a term not exceeding one year, nor any trust or 
 power coneerning such property, can he created, transferred or 
 declared otlierwise than by operation of law, or by a convey- 
 ance, or other instrument in writing, subscribed by the party 
 creating, transferring, or declaring the same, or by his lawful 
 agent under written authority, and executed with such formali- 
 ties as are required by law.
 
 APPENDIX. 493 
 
 Sec. 772. The last section shall not be construed to affect 
 the power of a testator, in the distribution of his property by 
 a last will and testament, nor to prevent a trust from arising 
 or being extinguished by implication or operation of law, nor 
 to affect the power of a court to compel specific performance 
 of an agreement in relation to such property. 
 
 Sec. 775. In the following cases the agreement is void, 
 unless the same, or some note or memorandum thereof, ex- 
 pressing the consideration, and subscribed by the party to be 
 charged, or by his lawfully authorized agent, evidence therefor 
 shall not be received other than the writing, or secondary evi- 
 dence of its contents, in the cases prescribed by law. 
 
 1st. Aif agreement that, by its terms, is not to be per- 
 formed within one year from the making thereof. 
 
 2d. An agreement to answer for the debt, default, or mis- 
 carriage of another. 
 
 3d. An agreement made upon consideration of marriage, 
 other than a mutual promise to marry. 
 
 5th. An agreement for the sale of personal property, at a 
 price not less than $50, unless the buyer accept and receive 
 some part of such personal property, or pay at the time some 
 part of the purchase money ; but when the sale is made by 
 auction, an entry by the auctioneer, in his sale-book, at the 
 time of the sale, of the kind of property sold, the terms of the 
 sale, the price and the name of the purchaser, and person on 
 whose account sale is made, is a sufficient memorandum. 
 
 6th. An agreement for the leasing for a longer period than 
 one year, or for the sale of real property or of any interest 
 therein. 
 
 7th. An agreement concerning real property, made by an 
 agent of the party sought to be charged, unless the authority 
 of the agent be in writing. 
 
 Sec. 776. No evidence is admissible to charge a person , 
 upon a misrepresentation as to the credit, skill or character of 
 a third person, unless such representation, or some memoran- 
 dum thereof, in writing, and either subscribed by, or in the 
 handwriting of the party to be charged.
 
 494 APPENDIX. 
 
 PENNSYLVANIA. Brightly's Purdon, IOtii Ed. 1872, 
 Vol. 1, P. 723. 
 
 Chapter " Frauds and Perjuries." 
 
 1. All leases, estates, interest of freehold, or term of years, 
 or any uncertain interest of, in or out of any messuages, 
 manors, lands, tenements, or hereditaments, made or created 
 by seizin only, or by parol, or not put in writing and signed 
 by the parties so making or creatini^ the same, or their agents 
 thereunto lawt'ullj^ authorized by writing, shall have the ibrce 
 and effect of leases, or estates at will only, and shall not, 
 either in law or equity, be deemed or taken to have any other 
 or greater force or effect, any consideration for making any 
 such parol leases or estates, or any former law or usage, to con- 
 trary notwithstanding, except, nevertheless, all leases not ex- 
 ceeding tl)e term of three years from the making thereof. 
 
 2. And, moreover, no leases, estates, or interests, either of 
 freehold or terms of years, or any uncertain interest of, in, to 
 or out of any messuages, manors, lands, tenements, or heredi- 
 taments, shall at any time be assigned, granted or surrendered, 
 unless it be by deed or note in writing, signed by the party so 
 assigning, granting or surrendering the same, or their agents 
 thereunto lawfully authorized by writing, or by act and opera- 
 tion of law. 
 
 3. All declarations or creations of trusts, or confidences of 
 any lands, tenements or herpditaments, and all grants and as- 
 signments thereof, shall be manifested by writing, signed by 
 the party holding the title thereof, or by his last will in writ- 
 ing, or else to be void*: Provided^ that, where any conveyance 
 shall be made of any lands, or tenements, by which a trust or 
 confidence shall or may arise or result by implication or con- 
 struction of law, or be transferred or extinguished by an act 
 or opei'ation of law, then, and in every such case, such trust or 
 confidence shall be of the like force and effect as if this act 
 had not been passed. 
 
 4. No action shall be brouglit whereby to charge any exec- 
 utor or administrator, upon any promise to answer damages 
 out of his own estate, or whereby to charge the defendant, 
 upon any special promise to answer for the debt or default of
 
 APPENDIX. 495 
 
 another, unless the agreement upon which such action shall be 
 brought, or some memorandum or note thereof, shall be in 
 writing and signed bj the partj^ to be charged therewith, or 
 some other person by him authorized. 
 
 5. This act sliall not go into effect until the first day of Janu- 
 ary next ; or apply to, or affect any contract made or responsi- 
 bility incurred prior to that time; or of any contract the con- 
 sideration of which shall be a less sum than twenty dollars. 
 
 EHODE ISLAND. General Statutes, 1872. 
 Title XXVI. Chapter 193. Section 8. 
 
 Sec. 8. No action shall bs brought — 
 
 First. Whereby to charge any person upon any contract 
 for the sale of lands, tenements or hereditaments, or the mak- 
 ing of any lease thereof for a longer time than one year. 
 
 Second. Whereby to charge any person upon any agreement 
 made upon consideration of marriage. 
 
 Third. Whereby to charge any exeeiftor or administrator 
 upon his special promise to answer any debt or damage out of 
 his own estate. 
 
 Fourth. Whereby to charge any person upon his special 
 promise to answer for the debt, default or miscarriage of an- 
 other person. 
 
 Fifth. Whereby to charge any pei'son upon any agreement 
 which is not to be performed within the space of one year 
 from the making thereof, unless the promise or agreement 
 upon wliich such action shall be brought, or some note or 
 memorandum thereof shall be in writing, and signed by the 
 party to be charged therewith, or by some other person by 
 him thereunto lawtullv authorized. 
 
 Title XXII. Chapter 16 1. Sections 1, 2. 
 
 Sec. 1. No estate of inheritance or freehold, or for a term 
 exceeding one year, in lands or tenements, shall be conveyed 
 from one to another by deed, unless the same be in writing, 
 signed, sealed and delivered by the party making the same,
 
 496 APPENDIX. 
 
 and acknowledged before a senator, judge, justice of the peace, 
 notary public or town clerk, by the party or parties wlio shall 
 have sealed or delivered it. And if the person conveying the 
 same shall be without this State, in the military or naval serv- 
 ice of the United States, the same may be acknowledged be- 
 fore any colonel, lieutenant-colonel or major in the army, or 
 before any officer in the navy, not below the grade and rank of 
 lieutenant-commander ; and such conveyance shall be recorded 
 or lodged to be recorded in the office of the town clerk of the 
 town where said lands or tenements lie. 
 
 Sec. 2. All bargains, sales, and other conveyances whatso- 
 ever of any lands, tenements or hereditaments, whether they 
 be made for passing any estate of freehold or inheritance, or 
 for term of years, exceeding the term of one year, and all 
 deeds of trust and mortgages whatsoever, which shall hereafter 
 be made and executed, shall be void unless they shall be ac- 
 knowledged and recorded as aforesaid : Provided always^ that 
 the same between the parties and their heirs shall be valid and 
 binding. (Page 257 of Eev. Stat.) 
 
 SOUTH CAROLINA. 
 
 In this State all the sections of the English statute con- 
 sidered in this w^ork are in force. See the various titles ; also 
 Brevard's Dig. Yol. I, Tit. 84. 
 
 TENNESSEE. Statutes (Thompson & Steger), 1871. 
 Vol. I, Section 1758. 
 
 No action shall be brought : 
 
 1. Whereby to charge any executor or administrator upon 
 any special promise to answer any debt or damages out of his 
 owif estate ; 
 
 2. Whereby to charge the defendant upon any special 
 promise to answer for the debt, default, or miscarriage of an- 
 other person ; 
 
 3. Whereby to charge any person upon any agreement 
 made upon consideration of marriage ; or
 
 APPENDIX. 497 
 
 4. Upon any contract for the sale of lands, tenements or 
 hereditaments, or the makhif; any lease thereof for a longer 
 term than one year ; or 
 
 5. Upon any agreement which is not to be performed with- 
 in the space of one year from the making thereof; 
 
 Unless the promise or agreement upon which such action 
 shall be brouglit, or some memorandum or note thereof shall 
 be in writing, and signed by the party to be charged there- 
 with, or some other person by him thereunto lawfully au- 
 thorized. 
 
 TEXAS. Paschal's Annotated Digest, 1873, 3d Ed. Vol. I. 
 
 Arts. 3875, 3876. Page 649. 
 
 No action shall be brought : 
 
 1. Whereby to charge any executor or administrator, upon 
 any special promise to answer any debt or damage out of his 
 own estate ; 
 
 2. Or whereby to charge the defendant, upon any special 
 promise to answer for the debt, default, or miscarriage of an- 
 other person ; 
 
 3. Or to charge any person upon any agreement made in 
 consideration of marriage ; 
 
 4. Or upon any contract for the sale of lands, slaves, tene- 
 ments, or hereditaments, or the making of any lease thereof 
 for a longer term than one year ; 
 
 5. Or upon any agreement which is not to be performed 
 within the space of one year from the making thereof; 
 
 Unless the promise or agreement upon which such action 
 shall be brought, or some memorandum thereof, shall be in 
 writing, and signed by the party to be charged therewith, or 
 some person by him thereunto lawfully authorized. 
 
 Aet. 3876. (1) Every gift, grant, or conveyance of land, 
 slaves, tenements, hereditaments, goods, or chattels, or of any 
 rent, common or proUt, out of the same, by writing or otherwise, 
 and every bond, suit, judgment, or execution had or made and 
 contrived of malice, fraud, covin, collusion, or guile, to the in- 
 33'
 
 498 APPENDIX. 
 
 tent or purpose to delay, hinder, or defraud creditors of their 
 just and lawful actions, suits, debts, accounts, damages, penal- 
 ties, or forfeitures, (2) or to defraud or deceive those who shall 
 purchase the same lands, slaves, tenements or hereditaments, or 
 any rent, profit or commodity out of them, shall be henceforth 
 deemed and taken only as against the person or persons, his or 
 her or their heirs, successors, executors, administrators or assigns, 
 and every of them whose debts, suits, demandsj estates, interests 
 by such guileful and covinous devices and practices as is afore- 
 said, shall, or might be in anywise disturbed, hindered, delayed, 
 or defrauded, to be clearly and utterly void, any pretense, color, 
 or feigned consideration expressing of use or any other matter 
 or thing to the contrary, notwithstanding ; (3) and moreover, 
 if any conveyance be of goods or chattels, or slaves^ and be not 
 on consideration deemed valuable in law, it shall be taken to 
 be fraudulent within this act, unless the same be by will duly 
 proved and recorded, or by deed in writing, or other instru- 
 ment acknowledged or proved ; if the same deed or instrument 
 of writing include lands also acknowledged or proved in such 
 manner as conveyances of lands are, by law, directed to be ac- 
 knowledged or proved ; or if it be goods and chattels, or slaves 
 only, then acknowledged or proved by two or more witnesses, 
 and recorded in the manner as now established by law, or may 
 hereafter be for the recording of deeds of conveyances of real 
 estate in this republic ; (-i) or unless possession shall really and 
 hona fide remain with the donee ; and in like manner, when 
 any loan of goods and chattels, or slaves, shall be pretended to 
 have been made to any person with whom, or those claiming 
 under him, possession shall have remained by the space of three 
 years without demand made and jjursued by due process of law 
 on the part of the pretended lender ; (5) or where any reserva- 
 tion or limitation shall be pretended to have been made of a 
 use or property, by way of condition, reversion, remainder, or 
 otherwise in goods and chattels, the possession whereof shall 
 have remained in another, as aforesaid, the same shall be taken 
 as to the creditors and purchasers of the persons aforesaid so 
 remaining in possession, to be fraudulent within this act, and 
 that the absolute property is with the possession, unless such
 
 APPENDIX. 499 
 
 loan, reservation, or limitation of the use or property were de- 
 clared bj will or by deed in writing, proved and recorded as 
 aforesaid. 
 
 VERMONT. General Statutes, 1862, Edition of 1870. 
 Title 19. Chapter 64. Sections 21, 23, 23, 24. 
 
 Sec. 21. All estates or interests in lands, created or conveyed 
 without any instrument in writing, signed by the grantor or his 
 attorney, shall have the force and effect of estates at will only ; 
 and no estate or interest in lands shall be assigned, granted, or 
 surrendered, unless by a Meriting signed as aforesaid, or by the 
 operation of law. 
 
 Sec. 22. ISo trust concerning lands, except such as may arise 
 or result by implication of law, shall be created or declared, 
 unless by an instrument in writing, signed by the party creat- 
 ing or declaring the same, or by his attorney. 
 
 Sec. 23. The assignment of any lease of lands, if the lease 
 is for a longer term than one year, shall be by deed, signed, 
 sealed, and witnessed, acknowledged, and recorded, as is pro- 
 vided in the case of deeds, in the fourth section of this chapter ; 
 and any assignment, otherwise executed, shall be void as against 
 all persons but the assignor, his heirs or devisees. 
 
 Sec. 24. ISTo deed or other conveyance of any lands, or of 
 any estate or interest therein, made by virtue of a power of at- 
 torney, shall be of any effect, or admissible in evidence, unless 
 such power of attorney shall have been vsigned, sealed, attested 
 and acknowledged and recorded in the office where such deed 
 shall have been recorded, as provided in this chapter. 
 
 Title 20. Chapter 66. Sections 1, 2, 3, 4. 
 
 Sec. 1. No action, in law or equity, shall be brought in any 
 of the following cases : 
 
 First. To charge an executor or adipinistrator, upon any 
 special promise to answer damages, out of his own estate ; 
 
 Second. To charge any person, upon any special promise to 
 answer for the debt, default, or misdoings of another ;
 
 500 APPENDIX. 
 
 Third. To charge any person, upon any agreement made 
 upon consideration of marriage ; 
 
 Fourth. Upon any contract for the sale of lands, tenements, 
 or hereditaments, or of any interest in or concerning them; 
 
 Fifth. Upon any agreement, that is not to be performed 
 within one year from the making thereof ; 
 
 Unless the promise, contract, or agreement, upon which such 
 action shall be brought, or some memorandum or note thereof, 
 shall be in writing, and signed by the party to be charged there- 
 with, or by some person thereunto by him lawfully authorized ; 
 and if the contract or agreement relate to the sale of real estate, 
 or any interest therein, such authority shall be conferred by 
 wanting. 
 
 Sec. 2, No contract for the sale of any goods, wares, or mer- 
 chandise, for the price of forty dollars, or moi'e, shall be good 
 or valid, unless the purchaser shall accept and receive part of 
 the goods so sold, or shall give something in earnest to bind 
 the bargain, or in part payment, or unless some note or mem- 
 orandum of the bargain be made in writing, and signed by the 
 party to be charged thereby, or by some person thereunto by 
 him lawfully authorized. 
 
 Sec. 3. No action shall be brought to charge an}' person, 
 upon, or by reason of any representation or assurance made 
 concerning the character, conduct, credit, ability, trade, or deal- 
 ings of any other person, unless such representation or^ssurance 
 be made in writing, and signed by the party to be charged 
 thereby, or by some person thereunto by him lawfully author- 
 ized. 
 
 Sec. 4. In no case where the performance of a contract 
 shall have been secured by the obligation of a suret}', shall any 
 •agreement made between the creditor and the principal debtor 
 for the extension of the time of payment, or the performance 
 of the contract, have, at law or in chancery, any binding effect, 
 unless such contract for such extension of time shall be made 
 upon a valuable consideration, and shall also be in writing, or 
 some note or memorandum thereof, in writing, and signed by 
 such creditor, or by some person thereunto duly authorized, re- 
 citing briefly the consideration upon which such contract may 
 be founded.
 
 APPENDIX. 501 
 
 VIRGINIA. Code, 3d Edition (Munford), 1873. 
 Chapter 140. Sections 1, 2. 
 
 Sec. 1. iSTo action shall be brought in any of the following 
 cases : 
 
 First. To charge any person upon or by reason of a repre- 
 sentation or assurance concerning the character, conduct, credit, 
 ability, trade, or dealings of another, to the intent or purpose 
 that such other may obtain thereby credit, money or goods ; or. 
 
 Secondly. To charge any person upon a promise made, after 
 full age, to pay a debt contracted during infancy, or upon a 
 ratification after full age of a promise or simple contract made 
 during infancy ; or. 
 
 Thirdly. To charge a personal representative upon a 
 promise to answer any debt or damages out of his own 
 estate ; or, 
 
 Fourthly. To charge any person upon a promise to answer 
 for the debt, default or misdoings of another ; or. 
 
 Fifthly. Upon any agreement made upon consideration of 
 marriage ; or, 
 
 Sixthly. Upon any contract for the sale of real estate, or the 
 lease thereof for more than a year ; or, 
 
 Seventhly. Upon any agreement that is not to be performed 
 within a year ; 
 
 Unless the promise, contract, agreement, representation, as- 
 surance or ratification, or some memorandum or note thereof, 
 be in writing, and signed by the party to be charged thereby, 
 or his agent. But the consideration need not be set fortli or 
 expressed in the writing ; it may be proved (where a considera- 
 tion is necessary) by other evidence. 
 
 Sec. 2. Any writing to which the person making it shall 
 afiix a scroll by way of seal, shall be of the same force as if it 
 were actually sealed.
 
 502 APPENDIX. 
 
 WISCONSIN. Revised Statutes (Taylor), 1872. 
 Title 20. Chapter lOG. Sections 6, 7, 8, 9, 10. 
 
 Sec. 6. No estate or interest in lands, other than leases for 
 a term not exceeding one year, nor any trust or power over or 
 concerning lands, or in any manner relating thereto, shall here- 
 after be created, granted, assigned, surrendered or declared, un- 
 less by act or operation of law, or by deed or conveyance in 
 writing, subscribed by the party creating, granting, assigning, 
 surrendering or declaring the same, or by his lawful agent there- 
 unto authorized by writing. 
 
 Sec. 7. The preceding section shall not be construed to affect 
 in any manner the power of a testator in the disposition of his 
 real estate, by his last will and testament ; nor to prevent any 
 trust from arising or being extinguished by implication or 
 operation of law. 
 
 Sec. 8. Every contract for the leasing for a longer period 
 than one year, or for the sale of any lands, or any interest in 
 lands, shall be void, unless the contract, or some note or mem- 
 orandum thereof, expressing the consideration, be in writing, 
 and be subscribed by the party by whom the lease or sale is to 
 be made. 
 
 Sec. 9. Every instrument required to be subscribed by any 
 party, under the last preceding section, may be subscribed by 
 the agent of such party, lawfully authorized. 
 
 Sec. 10. Nothing in this chapter contained, shall be con- 
 strued to abridge the powers of courts of equity to compel the 
 specific performance of agreements, in cases of part performance 
 of such agreements. 
 
 Title 20. Chapter 107. Sections 2, 3, 4, 8. 
 
 Sec. 2. In the following cases, every agreement shall be 
 void, unless such agreement, or some note or memorandum 
 thereof, expressing the consideration, be in writing, and sub- 
 scribed by the party charged therewith : 
 
 (1) Every agreement that, by the terms, is not to be per- 
 formed within one year from the making thereof.
 
 APPENDIX. 503 
 
 (2) Every special promise to answer for the debt, detkult, or 
 miscarriage of another person. 
 
 (3) Every agreement, promise, or undertaking, made upon 
 consideration of marriage, except mutual promises to marry. 
 
 Sec. 3. Every contract for the sale of any goods, chattels, 
 or things in action, for the price of fifty dollars or more, shall 
 be void ; unless, 
 
 (1) A note or memorandum of such contract be made in 
 writing, and be subscribed by the parties to be chai-ged there- 
 with ; or, 
 
 (2) Unless the buyer shall accept and receive part of such 
 goods, or the evidences, or some of them, of such things in 
 action ; or, 
 
 (3) Unless the buyer shall, at tlie time, pa}'- some part of 
 the purchase money. 
 
 Sec. 4. Whenever goods shall be sold at public auction, and 
 the auctioneer shall, at the time of sale, enter in a sale-book, a 
 memorandum specifying the nature and price of the property 
 sold, the terms of the sale, the name of the purchaser, and the 
 name of the person for whose account the sale is made, such 
 memorandum shall be deemed a note of the contract of sale 
 within the meaning of the last section. 
 
 Sec. 8. Every instrument required by any of the provisions 
 of tliis title to be subscribed by any party, may be subscribed 
 b}^ the lawful agent of such party. 
 
 [The references heretofore given in note * on page 50, are to previous 
 revisions or compilations of the statutes of the diflferent States. The 
 references in this appendix are in every case to the latest revision.]
 
 INDEX
 
 INDEX. 
 
 ABANDONMENT , 
 
 verbal abandonment of contract within statute of frauds, 387. 
 
 abandonment by creditor of execution against principal debtor, 439. 
 ACCEPTANCE, 
 
 of offer of guaranty, 3, 6. 
 
 verbal acceptance of written proposal, 189. 
 ACCORD AND SATISFACTION, 
 
 to deed before breach, 884. 
 
 surety discharged by, 446 {note). 
 ACTION, 
 
 in England on verbal guaranty made abroad^ 53. See Statute of 
 Frauds. 
 
 promise to pay if action against another stayed, 88, 93. See Statute 
 OF Frauds, 
 
 upon a guaranty, 236. 
 
 form of, 326. 
 
 joinder of parties, 337, 338. 
 
 by surety against a principal debtor, 313. See Debtor. 
 
 by surety against cosurety, 349, 850. See Contribution. 
 ADMINISTRATOR, 
 
 rijjht of surety to letters of administration on decease of principal 
 ■"debtor, 310. 
 
 and executor, liability of sureties for, 314 (iiote). 
 AGENT, 
 
 who is agent within sect. 4 of statute of frauds, 188, 206. See 
 Auctioneer ; Broker ; Company ; Parties ; Partners ; Signa- 
 ture. 
 
 agent's authority need not be in writing, 189. 
 
 cannot delegate his authority, 189, 
 
 but if he does, principal may ratify, 189. 
 
 subsequent recognition of agent's act, 189, 190. 
 
 agent need not sign as such, 190. 
 
 parol evidence of agency admissible, 190. 
 
 agent need not sign in name of principal, 190. 
 
 where agent signs his oion name, parol evidence when admissible to 
 prove agency, 190.
 
 508 INDEX. 
 
 AGE'^T— continued. 
 
 agreement tliat agent was not to be liable as principal may be pleaded 
 equitably., 190. 
 
 authority of agent countermandable, 190. 
 
 agent must have some authority, 190, 191. 
 
 effect of his signing without authority, 192. 
 
 his liability in such a case, 192. 
 
 who has implied authority to sign guaranty as agent, 193, 205. 
 
 del credere agent, what is, IGO. See Del Credere Commission. 
 
 signature of agent to representation within 9 Geo. 4,*c. 14, s. 6, 40, 48. 
 See Lord Tenterden's Act. 
 AGREEIVIENT, 
 
 variation of terms of, 388. See Revocation. 
 
 substitution of new for old, 387, 388. See Revocation. 
 
 parol evidence to explain written agreement, 214. See Evidence. 
 
 sect. 4 of statute of frauds requires whole agreement to be in writing, 
 170, 171. See Contract of Guaranty. 
 
 consideration need not now ajjpear in writing, 179, 181. See Con- 
 tract OF Guaranty. 
 
 to satisfy statute of frauds, agreement need not be contained in one 
 instrument, 206. See Contract of Guaranty. 
 
 to satisfy statute of frauds, agreement must be reduced to writing be- 
 fore action, 41. 
 
 requisites of agreement. See Contract of Guaranty. 
 ALIENS, 
 
 common law as to contracts by, 19, 20. 
 
 naturalization act, 1870, effect of, 19. 
 ALTERATION, 
 
 of instrument of guaranty, 376. 
 
 rule in PigoVs case applies to guaranties, 376. 
 
 senible, immaterial alteration by a party does not invalidate instru- 
 ment, 377. 
 
 effect of alteration made with consent of principal debtor, 378. 
 groimd on which discharge by alteration of written instrument pro- 
 ceeds, 378. 
 
 verbal alteration of contract within statute of frauds, 387, 388. See 
 Revocation. 
 
 APPROPRIATION OF PAYMENTS, 
 
 exi)lanation of the doctrine, 427. 
 
 right of appropriation in English law, 438. 
 
 debtor first right to appropriate, 428. 
 
 if he does not, creditor may, 428. 
 
 if neither does, then law appropriates to earlier debt, 427, 428, 
 
 right of appropriation in Roynan law, 429. 
 
 at what time appropriation to be made, 429. 
 
 by debtor, 428, 429. 
 
 by creditor, 428, 429. 
 
 application of doctrine of appropriation to sureties, 429, 431,
 
 INDEX. 509 
 
 ARREST, 
 
 promise to pay if another discharged from arrest, 105, 107. See 
 Statute of Frauds. 
 ASSENT, 
 
 mutual of contracting parties necessary, 3. 8ee Contract of Guar- 
 anty, 
 ASSIGNMENT, 
 
 promise to pay debt of another in consideration of ^Jebt being assigned, 
 
 170. See Statute of Frauds. 
 effect on surety's liability of execution of deed of assignment of 
 debtor's property by creditor as trustee under such deed, 400, 403. 
 ATTORNEY, 
 
 verbal guaranty of, 53. See Statute of Frauds. 
 
 promise by a defendant to pay charges of plaintiff's attorney, 73. See 
 
 Statute of Frauds. 
 guaranty addressed to attorney for plaintiff, 188, 193. 
 guaranty by one of several attorneys in partnership, 199. 
 AUCTIONEER, 
 
 "whether he can sign guaranty as agent, 193. 
 AUTHORITY. See Agent. 
 
 BAIL, 
 
 promise to indemnify bail in a civil case, 131, 135. 
 
 in a criminal case, 135, 137. 
 promise to execute bail bond, 88, 89, 163. 
 BANKRUPTCY, 
 
 of principal debtor, 318, 331. 
 
 rights of surety against principal debtor on latter's bankruptcy, 318. 
 
 formerly could not prove in respect of payments made after principal's 
 
 bankruptcy, 319. 
 right of proof under 49 Geo. 3, c. 131, s. 8, and subsequent statutes 
 
 re-enacting this provision, 331. 
 decisions under these statutes, 319. 
 who deemed a surety, 319. 
 necessary for principal's debt to be actually due when commission 
 
 issued, 330. 
 xcTiole debt of principal must have been satisfied, 330. 
 surety when entitled to prove for costs and expenses, 333. 
 certificate a bar to principal debt and consequential damage, 333, 333. 
 what protection afforded by certificate under 5 & 6 Vict. c. 133, s. 37, 
 
 333. 
 smety's right of ijroof not affected by creditor delivering up bond to 
 
 him and receiving surety's promissory note for sum remaining due, 
 
 333. 
 rights of surety against creditor on principal debtor's bankruptcy, 330. 
 may compel creditor to prove against principal debtor's estate, 331. 
 creditor is trustee of dividends for surety paying debt, 335.
 
 510 INDEX. 
 
 BKKKTUJPTCY— continued. 
 
 when surety entitled to stand in creditor's place as to future divi- 
 dends, 331. 
 
 proof in case of limited guaranty where limit has been -exceeded, 331. 
 
 proof where debt partly secured by guaranty, 333. 
 
 rights of surety under sect. 173 of B. A. 1849, 333. 
 
 right against principal delator's estate where surety ha^ paid after 
 bankruptcy qf creditor who has proved, 334, 335. 
 
 proof under B. A. 1869, 333. 
 
 which of several sureties entitled to benefit of creditor's proof, 333. 
 
 agreement by surety to waive right of proof in favor of creditor, 333- 
 
 such waiver not presumed by previous course of dealing between 
 parties, 334, 335. 
 
 of surety, 303, 308. 
 
 before default, creditor could not formerly prove, 303. 
 
 56 Geo. 4, c. 56, gives enlarged right of proof, 303. 
 
 to what cases contingent debt clauses of bankruptcy acts apply, 303. 
 
 right of proof against surety now regulated by B. A. 1869, 304. 
 
 person proving against surety must have a sufficient interest in the 
 guaranty, 304, 305. 
 
 of cosurety, 351, 353. 
 
 proof in respect of payments before cosurety's bankruptcy, 304. 
 
 no proof against cosureties under sect. 53 of 6 Geo, 4, c. IC, 353. 
 
 nor under sect. 177 of B. A. 1849, 353. 
 
 proof under B. A. 1869, 354. 
 BILL OF EXCHANGE, 
 
 consideration implied in, 30. 
 
 promise to indemnify indorser of a bill, 101, 103. See Statute op 
 Frauds. 
 
 surety for payment of a l)ill, but not a party to it, whether entitled to 
 notice of dishonor, 219, 330. 
 
 when guarantor of bill, not a party to it, discharged by omission to 
 present, 319, 330. 
 
 agreement to indorse another's bills discharged if demand to indorse 
 not made in reasonable time, 319. 
 BILL OF SALE, 
 
 promise to pay another's debt if goods not taken under bill of sale, 
 173, 174. fSee Statute of Frauds. 
 BOND, 
 
 promise to sign bail bond if third person released, 88, 89, 155. 
 
 bonds for good behavior of persons in oSices, «&c., 355, 378. 
 
 liability of surety under, after third person's re-appointment to same 
 office, 356. 
 
 general words of conditions as to duration of surety's liability re- 
 strained by recitals, 356.
 
 INDEX. 511 
 
 BOND — continued. 
 
 or by allegations iu pleadings where no recital of term of office, 259. 
 liability of surety where general words of condition in no way re- 
 strained, 260, 2G1. 
 by use of proper words surety's liability may extend to reappoint- 
 ments, 263. 
 after appointment to another office, 263. 
 where new office incompatible and inconsistent with first appointment, 
 
 266. 
 acceptance of additional office where first appointment retained, 267, 
 
 268. 
 after change in duties, &c., of office, 268. 
 
 material alteration of duties discharged surety, 268. 
 
 even though principal's default be in a matter not affected 
 
 by alteration, 269. 
 but alteration must be clearly alleged, 270, 272. 
 general clause in obligatory part of bond for fulfilment of agency 
 controlled by reference to prior clauses specifying extent of agency, 
 273. 
 surety not discharged by immaterial alteration, 274. 
 
 or if alteration was contemplated by surety, 274, 276. 
 liability of surety after alteration in tenure of office, 271. 
 where duties lessened^ 273. 
 
 bond for good behavior in two distinct offices, 273, 274. 
 alteration in mode of paying principal, 276. 
 bond for good behavior in an office extends only to defaults committed 
 
 after legal appointment., 253, 260. 
 and to breaches within scope of office, 253. 
 
 bond to secure advances to a certain amount not avoided by creditor 
 exceeding limit, 253, 254. 
 BOOKS, 
 
 entries in plaintiff's books often settle question to whom credit given, 
 129. See Credit ; Statute of Frauds. 
 BROKER, 
 
 implied authority to sign guaranty as agent, 192, 193. 
 promise to pay broker of distraining landlord his charges, 71, 73. See 
 Statute of Frauds. 
 
 CALLS, 
 
 surety for payment of, 233. 
 CANCELLATION, 
 
 of instrument of guaranty in equity, 325. 
 CAPIAS AD SATISFACIENDUM, 
 
 promise to pay another's debt on his discharge from arrest on ca. sa., 
 105, 107. 
 CHARTER-PARTY, 
 
 guaranty for performance of, need not be stamped, 208.
 
 512 INDEX. 
 
 COLLATERAL, See Statute of Frauds. 
 
 meaning of term, 67. 
 COMMERCIAL PAPER, 
 
 surety or guarantor on, 357 {note). 
 COMMON COUNTS. See Monet Paid. 
 COMPANY, 
 
 liability of, on guaranties given by directors, 203. 
 consolidation of company to wlwm. guaranty given, 290. See Part- 
 neks. 
 guaranty by companies act, 18G7, 177; Appendix, 452. 
 liability of company on representation of credit, &c., made by its man- 
 ager, 47, 48. 
 proof of surety for company in respect of interest, 315. 
 COMPOSITION, 
 
 guaranty for payment of a composition, 74,76, 170. See Statute op 
 
 Frauds. 
 effect on surety's liability of composition deed executed by principal 
 
 debtor, 399, 400. 
 composition deed under B. A. 1861, where surety's rights reserved, 
 
 399, 400. 
 composition deed under sect. 192 of B. A. 1861, not invalid, though 
 
 no reservation of surety's rights, 399,400. 
 effect of composition deed executed with surety's consent, 400, 403. 
 where composition deed contains reserve of remedies, 400, 403. 
 COMPROMISE, 
 
 surety discharged by, 445 (note)- 
 CONCEALMENT. See Fraud. 
 
 CONCURRENT CONSIDERATION. See Consideration. 
 CONDITION. See Bond. 
 CONDITION PRECEDENT. See Surety. 
 
 to surety's liability must be fulfilled, 222, 223. 
 
 where execution of guaranty by a person jointly witli surety is a con- 
 dition precedent, 222-225. 
 where agreement by creditor to give time to principal conditional on 
 performance of some act by principal, 412. 
 CONSIDERATION, 
 
 necessary to a contract not under seal, 20. 
 expressed in words or implied, 20. 
 in what cases implied, 20,21. 
 
 guaranty invalid (unless under seal) without consideration, 21. 
 consideration for surety's promise need not move directly between par- 
 ties, 22, 1 39, 140. 
 executed consideration will not support guaranty, 25. 
 forbearance a sufficient consideration, 26-32. 
 executory consideration supports guaranty, 32. 
 
 consideration for promise to answer for conduct of another in an 
 office, 82, 33
 
 INDEX. 513 
 
 CONSIDERATION— coniwiM^df. 
 
 guaranty supported by a concurrent consideration, 34. 
 
 whether moral consideration will support a promise, 36-39. 
 
 illegal consideration for guaranty, 36. 
 
 consideration for promise of guaranty must once have been in writing, 
 
 175. 
 this no longer necessary, 177. See Contract op Guaranty. 
 failure of consideration for guaranty, 379. 
 what amounts to, 379. 
 
 agreement giving time to debtor will not discharge surety unless sup- 
 ported by consideration, 503. See Time. 
 CONSTRUCTION OF GUARANTY, 
 rules of, specified, 211-214. 
 
 formerly held guaranty not to be construed against grantor, 211, 218. 
 now ordinary rule applies, 211, 213. 
 terms of surety's engagement regulate his liability, 212. 
 when natural and literal meaning of words must be given, 212. 
 construction must be on whole instrument, 212. 
 construction must be favorable, 214. 
 
 parol evidence to explain instrument, 214. See Evidence. 
 CONTINUING GUARANTY, 
 
 whether guaranty continuing, often difficult to determine, 287. 
 instances of continuing guaranties, 242. 
 inst^ces of guaranties not continuing, 237-242. 
 CONTRA Cl^ OF GUARANTY, 
 definition of, 1-2. 
 parties to, 1. 
 
 their relative position, 38-40. 
 requisites of, 3. 
 mutual assent, 3, 4. 
 offer of guaranty not binding, 3. 
 till acceptance revocable, 4. 
 acceptance is express, 4, 5. 
 or implied, 4. 
 minds of contracting parties must be ad idem as to subject of con- 
 tract, 6, 7. 
 sense in which promiser bound to fulfil promise, 6-8. 
 competency of parties to contract, 9. 
 intention defined, 9. 
 
 contracting parties must bo, capable of intending, 10. 
 effect of insanity of one of contracting parties, 10, 11. 
 effect of intoxication of one of contracting parties, 12. 
 why and when duress avoids a contract, li^-15. 
 infants, contracts by, 15-17. See Infants. 
 33
 
 514 INDEX. 
 
 CONTRACT OF GVAUANTY—coDtinved. 
 
 married women, contracts by. See Married Woman. 
 
 incapacities to contract arising from motives of public policy, 19. 
 
 aHens, 19, 20. See Aliens. 
 
 felons and outlaws, 20. See Felons and Outlaws. 
 
 valuable consideration, 20. See Consideuation. 
 
 liability of surety under guaranty. See Surety. 
 
 no special /cr??! or words necessai7 to constitute guaranty, 40. 
 
 evidence of guaranty by common law, 40. 
 
 4th sect, of statute of frauds requires written evidence, 40, 41. 
 
 evasion of this enactment, 41. 
 
 remedy applied by 9 Geo. 4, c. 14, s. 6, 41-43. See Lord Tentkb- 
 den's Act. 
 
 attempt to evade this provision, 43. See Lord Tenterden's Aot. 
 
 what cases within 9 Geo. 4, c. 14, s. 6, 44, 48. See Lord Tenter- 
 den's Act. 
 
 what written memorandum satisfies sect. 4 of statute of frauds, 176, 
 177. 
 
 whole agreement must be in writing, 176, 177. 
 
 by sect. 3 of 19 «fc 20 Vict. c. 97, consideration need not appear in 
 writing, 177. 
 
 this enactment not retrospective. 177. 
 
 does not dispense with necessity for consideration, 177-182. 
 
 terhal consideration cannot explain written promise, 178. 
 
 this enactment does not make a promise valid which was not so 
 formerly, 178. 
 
 nor does it cure had consideration, 178. 
 
 cases where court had to decide whether statement of consideration 
 sufficient, 179, 188. 
 
 substantial compliance with statutoi-y requisition as to written evi- 
 dence sufficient, 171. 
 
 names of contracting parties must appear in writing, 179. 
 
 to whom memorandum to ba adJressed, 177-179. 
 
 verbal acceptance of written proposal, 178. * 
 
 signature of mcmcrandum. See Signature. 
 
 memorandum in writing need not be coatemparary with agreement 
 
 206. 
 agreement need not be contained in one written instrument, 306. 
 where agreement evidenced by several written instruments, how they 
 
 are connected, 2C6 207. 
 statute satisfied by signed paper referring to another unsigned contain- 
 ing terms of agreement, 207. * 
 sufficient if statute once satisfied by memorandum in writing, 308. 
 CONTRIBUTION, 
 
 amongfet cosureties, 3S6-355. 
 history of right, 336, 337.
 
 INDEX. 515 
 
 ■CONTRIBUTION (amongst cosureties) —continued. 
 
 Roman law, 336, 337. 
 
 English law, 338. 
 
 in equity, 338, 339. 
 
 at law, 339, 840. 
 
 prinoiple ic rests on, 339. 
 
 when it arises, 3t0. 
 
 against whom it exists, 341. 
 
 all cosureties whenever they become so, 341. 
 
 whether sureties honnA jointly or jointly and sederally, 343. 
 
 executors of deceaaad cosurety, 344. 
 
 no right ugainst surety for surety, 345. 
 
 nor where defendant became surety at plaintiflPs request, 848. 
 
 how enforced, 346, 347. 
 
 amount rscoverable, 348. 
 
 credit must be given for payments received, 349. 
 
 liability for costs, 348. 
 
 amount recoverable in particular proceedings, 349. 
 
 in action at law, 349. 
 
 amount regulated by number of sureties originally liable, 339-350. 
 
 in equity, amount regulated by number of soloent sureties, 249- 
 351. 
 
 in iankriiptcy, 351. See Bankruptcy. 
 
 how the right is lost, 354-356, 
 
 operation of statute of limitations, 354. 
 
 not by time being given by creditor, 355. 
 
 nor semble, by release to cosurety, 355. 
 
 except pro tanto, 355. 
 COSTS, 
 
 promise to indemnify against costs of legal proceedings, 64 (note)^ 93, 
 
 109, See Statute of Frauds. 
 liability of surety for, 335, 236. 
 liability of principal dabtor for, to surety, 315. 
 
 surety when entitled to prove against bankrupt debtor's estate ior 
 costs, 323, 323. 
 
 liability of cosurety for, 348, 349. 
 COSUUETIES, 
 
 contribution amongst, 333-355. See Contribution. 
 
 liability for interest, 350 
 
 right of surety in respect of securities Jield by cosurety, 356. 
 
 ri^ht in respect of securities giren by cosursty, 430. 
 
 discharge of cosurety, whether a discharge of surety, 405, 406. 
 COUNTER-SECURITY, 
 
 surety holding couater^ecurity cannot have action for money paid, 
 312-314.
 
 516 INDEX. 
 
 COVENANT NOT TO SUE, 
 Avhat amounts to, 403, 
 
 by creditor not to sue principal debtor, 403, 405. 
 CREDIT, 
 
 what credit to be given to principal debtor where guaranty silent as 
 
 to credit, 415, 416. 
 how far giving of credit justified by custom of trade, 415, 416. 
 to whom credit given often difficult to decide, 113. 
 
 often decided by entries in tradesman's books, 130. 
 to whom credit given is for jury to decide, 113, 129. 
 CREDITOR, 
 
 promise of guaranty outside sect. 4 of statute of frauds unless made 
 
 to creditor, 129, 180. See Statute op Frauds. 
 rights of surety against creditor, 324. 
 
 before surety has made any payment, 324. • 
 
 to compel creditor to sue debtor, 324. 
 to compel employer to dismiss dishonest servant, 824. 
 to resti'ain creditor from proceeding at law, 324. 
 to have guaranty set aside and canceled, 324. 
 when surety is called upon to pay, 324. 
 
 equitable plea of set-off which principal debtor bad against cred- 
 itor, 325. 
 marshaling of assets, 325, 326. 
 after payment of debt by surety, 327. 
 to recover money paid in ignorance of fact, 326. 
 but not of law, 326. 
 
 right to benefit of all securities for debt held by creditor, 327. 
 extent of this right, 327. 
 includes transfer of mortgages, 327, 328. 
 how surety affected by doctrine as to tacking, 828, 829. 
 right of surety to assignment of satisfied securities by 19 & 20 
 
 Vict. c. 97, s. 5 . , 332, 333. 
 to what cases act extends, 333. 
 how act taken advantage of, 333. 
 surety entitled to all the equities which creditor could have enforced, 
 33:3, 336. 
 CUSTOM OF TRADE. See Credit ; Time. 
 
 DEATH OF SURETY, effect of, 422, 425. See Revocation. 
 DEBT, 
 
 promise to answer for promiser's own debt, 147, 152. See Statute of 
 
 Frauds. 
 meaning of word in sect. 4 of statute of frauds, 63, 65. See Statute 
 
 OF Frauds. 
 
 DEBTOR, 
 
 no privity of contract between principal debtor and surety, 38, 39. 
 debtor cannot enforce surety's liability under guaranty, 39, 40.
 
 INDEX. 517 
 
 DEBTOE— (Jon tinued. 
 
 Ijromise of gudranty when made to debtor, 130. 
 rights of surety against principal debtor, 307. 
 before payment by surety, 307, 310. 
 to compel in equity payment of debt by principal, 308. 
 what circumstances will give rise to this right, 308, 311. 
 no right of stoppage in transitu, 309. 
 after payment, but before repayment, 309. 
 to claim payment as simple contract creditor, 309. 
 right of retainer if made executor, 310. 
 riijht to administration as a creditor on death of principal debtor, 
 
 "310. 
 right of surety to obtain repayment, 310. 
 
 arises only where guaranty given with principal debtor's consent, 
 311, 312. 
 when right arises, 311. 
 
 as soon as surety has paid anything, 311. 
 
 but surety cannot accelerate his right by paying before debt 
 
 due, 311. 
 surety may be entitled to recover damages before payment, 
 312. 
 TioxD enforced, 313. 
 
 bill in equity, 313. 
 
 action for money paid, 313. 
 
 though payment not at debtor's request, 313. 
 surety taking bond from debtor cannot sue for money paid , 
 314. 
 proof in bankruptcy, 319. /See Bankbttptcy. 
 what he may recover, 314. 
 
 amount which he has paid with interest, 314, 315. 
 as to costs, 315. 
 
 where defense reasonable, 316. 
 where defense not reasonable, 316. 
 illegal payment made by surety not recoverable, 316. 
 debtor's defenses when sued by surety, 317. 
 payment, 317. 
 
 effect of payment to one of several sureties, 817. 
 statute of limitaticus, 318. 
 when it begins to run, 318. 
 DECEASED PERSON, 
 
 promise to pay debt of deceased person, 77, 80. See Statute of 
 Frauds. 
 DECLARATION, 
 
 on a guaranty need not state agreement to be in writing, 209. 
 on a guaranty is special, 236.
 
 518 INDEX. 
 
 DEED, 
 
 doea not require consideration to support it, 21. See CoNsrDEKATiON. 
 surety's engagement, though by deed, dots not extinguish deblor's 
 simple contract liability, 39. 
 
 power of partner to bind firm by deed, 203, 203. 
 
 accord and eatislaction to deed beloie breach, 386. 
 DEFAULT. See Statute op Frauds, 
 
 meaning of word '' default" in 4th section, C3, G7. 
 BEL CREDERE COMMISSION, 
 
 whence phrase borrowed, 157, note 2. 
 
 nature of, 160, 163. 
 
 definition of, 158, 160. 
 
 del credere agent not primarily liable, 160. 
 
 promise of del credere agent, whether within statute of frauds, sect. 4,. 
 159, 169, 
 DISCHARGE OF SURETY, 
 
 regulated by same piinciples at law and in equity, 359, 
 
 matters invalidating guaranty ab initio, 300. 
 
 fraud. See Fraud, 
 
 alteration of guaranty. See Alteratiok. 
 
 failure of consideration. See Consideration. 
 
 revocation of contract of suretyship. See Revocatiok. 
 by express agreement. See Revocation, 
 by implied agreement. See Revocation. 
 
 fulfilment of object of guaranty discharges surety, 425. 
 
 payment by principal debtor, 425. See Payment, 
 
 .setoff existing between principal debtor and credftor, whether a dis- 
 charge of surety, 431. See Set-off. 
 
 discharge of surety by loss occurring through negligence of creditor, 
 432, 
 
 laches of creditor, 432, See Laches, 
 
 loss of securities, 438. See Securities, 
 
 discharge of sureties by statute of limitations, 442. See Statute op 
 Limitations. 
 DISTRESS, 
 
 promise to pay rent due from third person if distress abandoned, 79, 
 81, 145, 149, 173, 174, See Statute op Frauds, 
 DURESS, 
 
 contract made under, 13. 15, See Contract of Guaranty. 
 
 EMPLOYMENT, 
 
 promise to be answerable for employed. See Bond. 
 ENDORSER, 
 
 See Indorsek, 
 ENTRY, 
 
 in books of plaintiff often decidefi to whom credit given, 129, 130.
 
 INDEX.. 519 
 
 EQUITY, 
 
 gUiirantor, entitled to rights of surety in, 1 {note). 
 
 will reform contract to express intention of parties, 3 (note). 
 
 relief in equity on ground of mental incapacity to contract, 11. 
 
 guarantor cannot have remedy in, where remedy at law adequate,'2 
 
 {note). 
 
 verbal guaranty canno^ be enforced by suit in equity, 41. 
 when equity compels creditor to sue principal debtor, 324, 
 principal debtor compelled in equity to exonerate surety from liability, 
 334. , 
 
 rights in equity of surety for mortgagor, 330. 
 
 securities marshaled in equity in favor of surety, 323. 
 
 equity jurisdiction as to contribution, 330, 335. See Contrirution, 
 
 will sometimes cancel guaranty, 325. 
 
 will sometimes order guaranty to be delivered up, 332. 
 
 same principles govern discharge of surety at law and in equity, 359. 
 
 where equity has concunvnt jurisdiction it will not send suitor to law, 
 
 359. 
 effect of time given to principal debtor after decree Lq equity, 421, 
 
 422. See Time. 
 equitable plea of set-off, 325. 
 
 right of surety to all the equities creditor could have enforced, 324. 
 creditor when a trustee in equity of dividends received from bank- 
 rupt principal debtor, 325, See Bankruptcy. 
 creditor a trustee in equity of execution against principal debtor, 439. 
 EVIDENCE, 
 
 parol evidence to prove an executory consideration, 33. 
 
 when guaranty need not be proved to be in writing, 209. 
 
 entry in books of plaintiff' evidence to show to whom credit given, 
 
 129, 130. 
 written evidence of guaranty must exist before action brought, 41, 
 parol evidence of consideration to explain surety's written promise not 
 
 admissible, 178, 179. 
 parol evidence of agency, 189, 190. 
 
 parol evidence to prove that guaranty is signed by an agent, 189, 190. 
 written evidence of agent's authority to sign guaranty unnecessary, 
 
 189, 190. 
 parol evidence admissible to charge undisclosed principal, but not to 
 
 discli'xrge person signing as agjnt, 189, 190. 
 parol evidence to connect different papers containing agreement of 
 
 parties, 206. 
 parol evidence to explain, not contradict written instrument, 214, 
 unstamped guaranty cannot be given in evidence, 208. See Stamp. 
 surrounding circumstances may be given in evidence, 215. 
 surety not estoppsd by recital in bond from proving no legal appoint- 
 ment of principal to office, 232.
 
 520 INDEX. 
 
 "EYWEl^CE— continued. 
 
 parol evidence of agreement giving time to debtor admissible, 409. 
 
 ■whether reserve of remedies against surety may be proved by p.aroI 
 evidence, 
 
 in agreement giving time to principal debtor, 416, 418. 
 
 in release, 405. 
 EXECUTION. See Capias ad SATisrAciEND|jM. 
 
 promise by execution creditor to sheriflF's attorney, 78. 
 
 promise to pay if execution against third person withdrawn, 93. 
 
 abandonment by creiJitor of execution against principal debtor, 439. 
 after surety has converted himself into a principal debtor, 443. 
 
 creditor a trustee of execution for surety, 439. 
 
 creditor loses benefit of execution under warrant of attorney by 
 neglect of statutory formalities, 439. 
 
 stay of, surety discharged by, 446 (note). 
 EXECUTORS AND ADMINISTRATORS, 
 
 liabilities of sureties for, 314 (note). 
 
 FELONS AND OUTLAWS, 
 
 absolutely incapable of contracting, 30. 
 FORBEARANCE, 
 
 to sue third person, promise in consideration of, 35, 33. 
 for an indefinite period, whether a sufficient consideration, 35, 33. 
 FRAUD, 
 
 liabilities of surety for, 378, 379. 
 discharge of surety by, 361, 
 antecedent to contract, 361. 
 suppression or concealment, 361, 
 rule prevailing in insuraiice cases as to effect of concealment does 
 
 not apply to guarantees, 363, 365. 
 what concealment vitiates guaranty, 363. 
 what amounts to fraudulerit concealment, 363, 366. 
 inteaitional concealment not necessarily fraudulent, 363. 
 what matters surety bound to disclose spontaneously, 364. 
 misrepresentation, 373. 
 written, 373. 
 verbal, 373, 375. 
 subsequent to contract, 375. 
 
 creditor conniving at principal debtor's default, 371. 
 fraudulent concealment of dishonest act of employed, 371. 
 discharge of principal by creditor through fraud of surety, 403. 
 FRAUDULENT REPRESENTATIONS, 
 
 as to character, 43. 8ee Lord Tenterden's Act. 
 
 GUARANTY. See Contract op Guaranty. 
 GUARANTOR. See Surety.
 
 INDEX. 521 
 
 HUSBAND, 
 
 liability of, on wife's contracts, 17, 102. See Married Woman. 
 
 IGNORANCE, 
 
 of fact, money paid in, 320. 
 
 of law, money paid in, 326. 
 INDEMNITIES, 
 
 express indemnities, whether within sect. 4 of statute of frauds, 58. 
 iSee Statute op Frauds. 
 
 implied indemnities not within sect. 4 of statute of frauds, 59. See 
 Statute of Erauds. 
 INDORSEE, 
 
 and surety, difference between, 357 (note). 
 INFANTS, 
 
 why they labor under qualified incapacity to contract, 15, 16. 
 
 Roman law as to contracts by infants, 15, 16. 
 
 English law as to contracts by infants, 16. 
 in respect of necessaries, 16. 
 what are necessaries, 16. 
 
 promise to answer fof infants, 101, 102. 
 INJUNCTION, 
 
 when surety may obtain, 325. 
 INSANITY, 
 
 when good defense in England, 10, 11. 
 
 executed contract not vacated on ground of insanity, 10. 
 
 equity relieves on ground of weakness of intellect, 11. 
 INTENTION, 
 
 concmTence of, necessary to a contract, 3. 
 
 definition of, 9, 10. 
 
 parties to contract must be capable of forming intention, 10. 
 INTEREST, 
 
 when surety liable to creditor for, 235. 
 
 surety entitled to recover interest from principal debtor, 314. 
 
 surety for a company proving for interest, 315. 
 
 surety may recover interest from cosurety, 350. 
 
 bond creditor agreeing by anticipation to take interest on his. debt, 
 410. 
 INTOXICATION, 
 
 contract entered into under, renders agreement voidable, 12, 
 
 JOINT LIABILITY, 
 
 promise to be jointly liable with another, 130, 121, 132. 
 JUDGMENT, 
 
 surety discharged by, 446 {note). 
 
 will be subrogated to, against principal, 318. 
 
 effect of, against, as to cosurety, 348, 349 (note).
 
 622 INDEX. 
 
 JURY, 
 
 determines whetlier supply of goods to third person reaaonaible, 82, 33. 
 when signature to contract not in its usual place, its effect for jury, 
 204, 
 
 to whom credit given is for jury, 113, 129. 
 
 for jury to say whether defense by surety reasonable, so as to entitle 
 him to recover from principal costs of defense. 316. 
 
 LACHES, 
 
 surety discharged by, 431,438. 
 
 neglect to insure against fire, work, performance of which guaranteed, 
 432, 433. 
 
 guaranty to indorse third person's bills discharged, if demand to in- 
 dorse not made in reasonable time, 433,434. 
 
 when surety for payment of negotiable instrument, but not a party to 
 it, discharged by omission to present for payment, 219, 220, 434. 
 
 surety of solvency oi" purchasers discharged by omission to sell at good 
 oppo-i-tunities, 434. 
 
 when surety discharged by conduct of persons associated in office with 
 principal, 434. ^ 
 
 neglect of employer to dismiss dishonest servant, 435. 
 
 negliojence of employer in calling upon employed to account after 
 notice not to trust, 435, 436. 
 
 omission to give notice to surety of third person's embezzlement, 435, 
 436. 
 
 omission by creditor to take proceedings which would have been use- 
 less, 437. 
 
 LEADING OBJECT, 
 
 of contract, a test whether sect. 4 of statute of frauds applies, 152. See 
 Main Object ; Statute of Frauds. 
 LIABILITY OF PRINCIPAL DEBTOR. See Debtok. 
 LIABILITY OF SURETY. See Surety. 
 LIEN, 
 
 promise in consideration of lien being given up, 78, 140, 146, 153, 154, 
 169. 175. 
 LIMITATIONS. See Statute op Limit-^tions. 
 LORD TENTERDEN'S ACT (9 Geo. 4, c. 14). 
 
 sect. G cured evasion of sect. 4 of statute of frauds, 42. 
 
 by sect. 6, representation of character, &c., not actionable unless in 
 
 writing, 43. 
 origin of this enactment, 42. 
 rule where representation of character, &c., partly written and partly 
 
 verbal^ 43, 44. 
 defendant not liable unless representation false to his knowledge, 43, 
 
 44. 
 but defendant need not benefit by the deceit, 43. 
 attempted evasion of sect. 6 of Loid Tenter den's Act, 43. 
 cases within sect. 6, 43-48.
 
 INDEX. 523 
 
 LORD TENTERDEN'S k(TP- continued. 
 
 representation of credit of firm of which defendant a member, 45,46. 
 to whom representation must be made, 44. 
 signature of representation, 44—47. 
 
 liability of company on repreapntation of credit, &c., signed by its 
 manager, 47, 50. 
 
 MAIN OBJECT, 
 
 of promise, 153. See Leading Object ; Statute of Frauds. 
 MARRIED WOMAN, 
 
 reasons for incapacity to contract, 17, 18. 
 
 promise to answer for a married woman, 103-107. 
 MARSHALING, 
 
 of assets in favor of sureties, 335, 326. 
 
 of securities in favor of sureties, 324. 
 MEMORANDUM. See Contract of Guaranty. 
 
 MERCANTILE LAW AMENDMENT ACT (19 & 20 Vict. c. 97), ap- 
 pendix, 453. 
 
 by sect. 3, consideration need not now appear in vmtiug on face of 
 guaranty, 177. See Contract of Guaranty. 
 
 by sect. 6, surety entitled to assignment of satisfied securities, 333, 333. 
 See Securities. 
 
 operation of sect. 4, on guaranties to or for partners. See Partners. 
 MERCHANTS, 
 
 guaranty by one of several in partnership, 195-303. 
 J^EERGER, 
 
 of inferior security, 398. See Security. 
 MISCARRIAGE, «l 
 
 meaning of word in sect. 4 of statute of frauds, 60, 61. See Stat- 
 ute OP Frauds. 
 MISREPRESENTATION. See Fraud. 
 MISTAKE, 
 
 surety discharged by, 445 {note). 
 
 of another, if surety discharged by, 445 (note). 
 MONEY PAID, 
 
 money paid under a verlyal guaranty cannot be recovered back, 50, 51. 
 
 when surety liable for, 235-228. 
 
 when surety may maintain action for, 310-313. 
 
 when contribution recoverable in action for money paid, 348. 
 MORAL CONSIDERATION, 
 
 when it ^\\\ not 3upi)ort a promise, 36, 37. 
 
 when it supports a promise, 37. 
 MORTGAGE, 
 
 when surety entitled to assignment of, 327, 328, 356, {iwtt). 
 
 NAVY AGENTS, 
 
 guaranty by member of finn of, 195.
 
 524 INDEX. 
 
 NOTICE. See Revocation. 
 
 guaranty sometimes expressly determinable by notice, 384. 
 
 creditor may assign securities vsdtliout giving notice to surety, 427. 
 NOVATION, 
 
 substitution of one debtor for aaother who is thereby discharged, 
 108-111. 
 
 conversion oi sole debt into a joint debt, 108-110. 
 
 acceptance of composition from a stranger in lieu of original debt, 109. 
 
 OFFER, 
 
 to guarantee not binding, 3, 4. 
 OFFICE, 
 
 promise to be answerable for third person in an office. See Bond. 
 OMISSION, 
 
 of another, if surety discharged by, 445 (note). 
 OPERATION OF LAW, 
 
 discharge of principal debtor by, does not discharge surety, 401, 403. 
 
 what amounts to discharge by operation of law, 401-403. 
 ORIGINAL DEBTOR, 
 
 where his liability extinguished by guarantor's promise, 104, 113. See 
 Statute of Frauds. 
 
 PAROL EVIDENCE. See Evidence. 
 PARTIES, 
 
 to contract of guaranty, 2. 
 
 names of contracting parties must appear in writing, 188, 189. See 
 
 Contract of Guaranty. 
 guaranty need not be addressed to other contracting party, 188, 190. 
 to action on guaranty, 226. See Action. 
 
 signature of one contracting party as agent for other, to memorandum 
 of guaranty, 193. 
 PARTNERS, 
 
 guaranty addressed to one of several partners, 188. 
 
 guaranties l/y partners, 195-203. 
 
 how far firm bound by signature of a member of firm to a guaranty, 
 
 195-203. 
 power of one partner to bind firm by deed, 202, 203. 
 effect of guaranty given by firm on persons subsequently joining firm, 
 
 203. 
 guaranties to or for partners, 280. 
 
 provision of sect. 4 of 19 & 20 Vict. c. 97, on this subject, 281. 
 this enactment merely afl[irms the common law, 281, 282. 
 guaranties to partners, &c., liability of surety under, 282, 283. 
 after increase in number of partners, 282. 
 after diminution in number of partners, 285. 
 by death, 285-29G.
 
 INDEX. 525 
 
 PATiTJ^iEKS—eontinued. 
 
 guaranties to, after diminution in number of — 
 • by partners retiring from firm, 296. 
 consolidation of company to whom guaranty given, 296, 297. 
 guaranties yb?' partners, &c., liability of surety under, 297. 
 after increase in number of })artners, 297-301. 
 after diminution in number of partners, 301-303. 
 by death, 302. 
 
 by partners retiring from firm, 302, 303. 
 promise by one partner to pay debt of deceased partner, 76. Se0 
 Statute OF Frauds. ' 
 
 PAYMENT, 
 
 by surety in default of principal not a voluntary payment, 310, 312. 
 illegal payment made by surety not recoverable, 316. 
 payment in full by debtor, defense to action by surety, 316. 
 in full by principal debtor discharges surety, 425, 426. 
 simple payment, 425, 426. 
 payment must be valid, 425. 
 what amounts to a payment, 426, 427. 
 payment under legal process, 427. 
 
 appropriation of payments, 4S7. See Appropriation of Patments, 
 PLEA, 
 
 verbal guaranty may support, 52. 
 
 objection of want of written agreement need not be pleaded specially, 
 
 209. See Replication. 
 equitable plea of set-ofF, 225. See Set-off. 
 
 equitable plea by surety oi parol agreement giving time to principal, 
 406-408. 
 PRESUJUPTION, 
 
 against defendant giving or plaintiff receiving an invalid instrument, 
 
 211-214. See Construction of Guaranty. 
 no presumption of waiver by surety of proof against estate of princi- 
 pal debtor from previous course of dealing, 334, 335. 
 PRINCIPAL DEBTOR. See Debtor. 
 PROCESS. 
 
 surety discharged*by, 446 (note). 
 PROMISE. See Statute of Frauds. 
 PROPERTY, 
 
 promise to pay debt for which, promiser's property already liable, 135, 
 136. See Statute op Frauds. 
 PURCHASE, 
 
 of a debt, 169, 170. See Statute of Frauds. 
 
 QUESTIONS OF FACT. See Jury. 
 
 RAILWAY CONTRACTORS, 
 
 guaranty by member of firm of, 198.
 
 526 INDEX. 
 
 RECITALS, 
 
 condition of bond restrained by, 253. See Bond. 
 efifect of recital in surety bond of legal appointment of a person to an 
 office, 233. See Bond. 
 
 RECORD, 
 
 promise to pay if record in action against third person withdrawn, 
 88-92. See Statute of Fbauds. 
 
 RELEASE, 
 
 of debtor by creditor, 404, 405. See Revocation. 
 * where rights against surety reserved, 401, 403. 
 
 whether such reservation can be proved by parol evidence, 401-406. 
 See Evidence. 
 
 effect of release given after surety has become a principal debtor, 405. 
 REPLICATION, 
 
 to plea of no written memorandum required by statute of frauds, 209. 
 REPRESENTATIONS. See Lord Tentbrden's Act. 
 RESERVATION, 
 
 of creditor's rights against surety, 401, 403. Se3 CoMrosiTiON; Evi- 
 dence ; Release ; Revocation ; Time. 
 
 REVOCATION, 
 
 of contract of suretyship, 384. 
 
 by agreement, 384. 
 
 express agreement, 384-386. 
 
 revocation of old agreement, 385. 
 
 offer to guarantee revocable before acceptance, 885. 
 
 whether promise of guaranty revocable after it has been partially 
 acted on, 334-. 
 
 where guaranty not under seal, 8S5. 
 where guaranty under seal, 385, 386. 
 
 substiiution oi' new agreement for old, 385. 
 
 effect of accord and satisfaction to deed before breach, 387, 388. 
 
 verbal abandonment of contract within statute of frauds, 387. 
 
 implied agreement. 388. 
 
 where creditor and debtor agree to c^rry terms of original con- 
 tract, 388. 
 
 variation of original agreement between principal debtor and 
 creditor, 389. 
 
 where variation material, 380-394. 
 
 if with surety's CDncurrence, 390. 
 where variation not material, 392. 
 i when surety discharged, 392-395. 
 
 variation of original agreement between surety and creditor, 395. 
 
 as a rule surety discharged by any such variation, 395. 
 
 where sutstafitially no variation, 3E6-398.
 
 INDEX. 537 
 
 REVOCATION (of contract of smetys.h\p) — co7itinued. 
 
 where creditor takes additional security from principal debtor, 
 
 398. 
 where additional security is i)i lieu of original security, 398. 
 where it operates as a merger of original security, 398. 
 where principal debtor discharged, guaranty impliedly revoked, 
 
 399. 
 effect of deed of composition 400-402. See CoMPoeiTioN. 
 where deed of assignment executed by creditor as trustee under 
 
 deed, 401. 
 where principal debtor discharged by operation of law, 401. 
 where principal debtor discharged hj fraud of surety, 402. 
 where surety expressly stipulates to remain liable after principal's 
 
 discharge, 402. 
 where creditor covenants not to sue principal, 403. See Cotb- 
 
 ^ANT KOT TO SUE. 
 
 release of debtor by creditor, 404. 
 
 if surety's rights reserved, 404-406. 
 after surety has become a. principal debtor, 405. 
 discharge of cosurety whether a discharge of surety, 406. 
 agreement by creditor to give time to principal debtor, 407. See 
 
 Time. 
 agreement by creditor to give time to surety. 420, 431. 
 by death, 422-425. 
 
 whether death of surety revokes guaranty, 421-424. 
 RULES, 
 
 to determine what is a prom'se to answer for debt, defiult, «&c., with- 
 in sect. 4 of statute of frauds, 65. See Statute op Fbauds, 
 
 SECURITY, 
 
 surety receiving counter-security from piincipal debtor cannot recover 
 
 on comnion counts^ 313, 314. 
 right of surety to securities held by creditor, 326. 
 surety not entitled formerly to satisfied securities, 329. 
 sect. 5 of 19 & 20 Vict. c. 97, permits assignment of satisfied, securities, 
 
 332, 333. 
 how far this enactment retrospective, 332, 333. 
 how advantag3 may be taken of it, 333, 333 
 
 right of surety to securities given after contract of suretyship, 327-339. 
 right of .surety in respect of securities held by a cosurety, 356. 
 right of surety in respect of securities given by a cosurety, 438, 439. 
 surety discharged by loss of securities, 437, 438. 
 loss must have been caused by creditor, 440. 
 
 what securities creditor bound to keep up for surety's benefit, 439. 
 effect of primary security becoming worthless, 441. 
 creditor need not give surety notice of assignment of securities, 410.
 
 528 INDEX. 
 
 SECURITY— continued. 
 
 effect of creditor taking additional security, 398, See Revocation. 
 
 as to merger of inferior security, 398. 
 SEE PAID, 
 
 promise to see paid., 123 {note 1), 125, 126. 
 SET-OFF, 
 
 mere liaUUttj under guaranty not the subject of set-off, 288. 
 
 money nctually paid under a guaranty constitutes set-off, 288. 
 
 equitable plea by surety of set-off in full between principiil debtor and 
 creditor, 432, 433. 
 
 SIGNATURE. See Agent ; Lord Tendterden's Act ; Parties. 
 
 of memorandum in writing to satisfy sec. 4 of statute of frauds, 189, 
 190. See Contract of Guaranty. 
 
 such memorandum need only be signed by the party to be cliargedy 
 
 189, 190. 
 
 » 
 signature by agent. See Agent. 
 
 where signature of memorandum must be placed, 204, 205. 
 
 casual introduction of name in an instrument, 205. 
 
 when signature not in its usual place its effect is for jury, 204, 205. 
 
 the nature and character of signature to memorandum, 200-205. ^ 
 
 marh by marksman, 204. 
 
 whether signature by initials sufficient, 205. 
 
 signature without christian name, 205. 
 
 printed signature, 205. 
 
 signature by contracting party &s a witness, whether sufficient, 305-208. 
 
 whether alteration of draft amounts to a signature, 208. 
 
 signature of a paper referring to another paper containing tenns of 
 agreement, 208-210. 
 SPECIAL PROMISE, 
 
 what is, 59, 60. See Statute op Frauds. 
 STAMP, 
 
 unstamped instrument of guaranty cannot be given in evidence, 208. 
 though it does not state on its face consideration for promise, 
 208, 209. 
 
 guaranty relating to sale of goods does not require a stam}}, 208. 
 
 guaranty for due performance of a charter-party requires no stamp, 
 208. 
 
 promise in consideration of unstamped guaranty being given up, 
 34, 35. 
 
 STATUTE OP FRAUDS, 
 
 operation of 4th section of statute of frauds on guaranties, 50. 
 operation of 4th section p6inted out by words "no action shall be 
 
 brought," 50-58. 
 verial guaranty not void, 52. 
 how vei'bal guaranty of attorney enforced, 52.
 
 INDEX. 529 
 
 STATUTE OF YTIKJIDS— continued. 
 
 parol agreement within sec. 4 may support a ^Zm, 52. 
 money paid on verbal guaranty cannot be recovered back, 52. 
 action in England on Dei'lal agreement within 4th section made abroad, 
 
 52-54. 
 promises partly within sec. 4 and partly witlwut it, 53-57. 
 what hind oijyromises wdthin 4th section indicated by words " on any 
 
 special promise," 50-55. 
 exjyress indenmities within sec. 4, 59. 
 implied indemnities not within, 59-62. 
 promise to give a guaranty, 60. 
 
 the Mnd of liability contemplated by 4th section indicated by words 
 " to answer for the debt, default of miscarriage of another," 51-59. 
 meaning of words debt, default and miHcarriage, 58-61. 
 liability of promiser must be collateral, 65. 
 rules for determining what promises within 4th section, 61, 67. 
 rule 1, liability of a third person must exist or be conteini^lated, 67. 
 existence of third person's liability basis of guaranty, 67-73. 
 where third person liable 4th section applies, 67. 
 
 promise to pay broker, put in by distraining landlord, his 
 
 charges, 72. 
 promise by defendant to plaintiff's attorney to pay him his 
 
 charges^ 72, 73. 
 promise by a principal to pay a debt booked to his agent, 73. 
 guaranty for payment of a composition to creditors where in- 
 solvent not released, 73-76. 
 where no third person liable 4th section does not apply, 75. 
 
 promise to answer for debt due by a deceased person, 75-77. 
 promise by an execution creditor to a sheriff 's attorney, 76, 77. 
 promises to pay a debt if a lien for it given up, 78-80. 
 promises to pay rent due if a distress desisted from, 80, 81. 
 agreement by agent to let his principal retain money in order to 
 
 pay a debt due by agent's predecessor, 81-83. 
 promise to pay third person's debt out of proceeds of his goods, 
 
 83, 85. 
 or out of money belonging to him which former is about to re- 
 ceive, 84-88. 
 promise to sign a bail bond if a third person released, 88, 89. 
 promise to pay if record be withdrawn in action against third 
 
 party, 90-93. 
 promise to pay if execution against third party withdrawn, 92. 
 promise that a third party shall not leave kingdom, 96. 
 promise to procure another's signature to a guaranty, 93. 
 promises to indemnify against the costs of legal proceedings by 
 
 proqiisee, 96-100. 
 promise to indemnify indorser of a bill, 101, 103. 
 
 34
 
 630 INDEX. 
 
 STATUTE OF FHA-ITDS— continued. 
 
 rule 1, for determining what promises within 4tli section — continued. 
 promises for persons incapable of legal liability, 102-107. 
 promises by which third person's debt extinguished, 107-111. 
 promises to pay a debt for which defendant aiTested on ca. sa. on 
 
 his dischai'ge, 105, 107. 
 novation by ex^jress agreement, 107, 111. 
 contemplation infuturo of liability of third person brings a case 
 
 within 4th section, 111. 
 formerly 4th section did not apply unless third person actually 
 liable when jjromise sued on toas made^ 111. 
 but secus now, 111, 114. 
 often difficult to say whether third person's liability contemplated, 
 113. 
 
 examples, 113-139. 
 entries in plaintiff's books often settle question to whdm credit 
 given, 129. 
 
 sometimes credit given entirely to defendant, and vet case is with- 
 in statute, 129-131. 
 rule 2, promise must be made to the creditor, 129. 
 
 promise to debtor not within 4th section, 129, 131. 
 
 promise to sheriff's officer who has arrested defendant, 129,131. 
 
 promise to plaintiff that a third person shall perform a duty he 
 owes to defendant, 131, 134. 
 
 promise to indemnify bail in a criminal case, 131, 134. 
 
 promise to indemnify bail in a civil case, 133, 134. 
 rule 3, there must be an absence of all liability on part of surety or his 
 liroperty, except such as arises from his express promise, 135, 
 136. 
 
 comments upon this rule, 135, 136, 137. 
 
 promise by sub-vendee to original seller that first vendee shall 
 pay, 138, 139. 
 
 promise by one jjartuer to pay debt of deceased partner's widow 
 if lien given ujj, 140, 141. 
 
 when i)romises to pay if lien given up fall within j^'esent rule, 
 140-145. 
 
 l>romises by person having interest in goods distrained for rent 
 due from third person to pay rent due if goods released, 145-148. 
 
 promise to indemnify person if he will become surety for another, 
 144-146. 
 
 promise to answer for promiser's own debt, 147-152. 
 ride 4, the main object of the promise mu^t be the payment of a debt 
 or performance of a duty by a third person, 152. 
 this rule difficult of application, 152, 153. 
 has not always been adhered to, 152, 153. 
 
 promise to provide for acceptances if lien on policies given up, 
 153, 154.
 
 INDEX. 531 
 
 STATUTE OF FUA-VOB— continued. 
 
 rule 4, for determining what j)romises within 4th section — continued. 
 promise that debtor shall not leave kingdom without paying debt, 
 
 155. ^ 
 agreement that judgment for smallei' amount should stand as 
 
 secui'ity for larger amoimt, 154. 
 promise to execute bail bond, 155. 
 promise by del credere agent, 157-169. 
 rule 5, agreement between promiser and the creditor, to whom the 
 promise is made, must not amount to a sale by latter to 
 former of a security for a debt or of debt itself, 169. 
 very few direct authorities for this rule, 169. 
 peculiarities of cases within this rule, 169. 
 promise to provide for acceptances if lien on policies given up, 
 
 170. 
 promise to pay another's debt on goods taken in execution ))eing 
 
 restored, 170. 
 promise to pay composition on assignment of debt, 170, 171. 
 promise to pay for repairs of carriage if lien on same is given up, 
 
 171. 
 promise to pay another's debt if goods not taken in satisfaction 
 
 under bill of sale, 173. 
 promises to pay rent due from another if goods not taken in dis- 
 tress, 173, 174. 
 when such transactions cannot be treated as purchases, 174. 
 what is a sufficient memorandum of guaranty to satisfy sect. 4, 175. 
 See Agent; Auctioneer; Bkoker; Contract of Guaranty; 
 Signature ; Telegraph. 
 verbal abandonment ofy contract within statute of frauds, effect of. 
 387, 388. 
 STATUTE OP LIMITATIONS, 
 
 when it begins to run against a creditor, 443, 444, 445, 
 when it begins to run against a surety, 
 in favor of principal debtor, 318. 
 in favor of cosurety, 354. 
 STATUTES of the different States. See Appendix. 
 STAT. See Execution. 
 STOPPAGE IN TRANSITU, 
 
 mere surety for price of goods cannot exercise right of, 309. 
 SURETY, 
 
 no privity of contract between creditor and surety, 38, 39. 
 
 jjrincipal debtor cannot enforce liability of surety under guaranty, 39. 
 
 fi-om whom consideration for surety's promise moves, 39. 
 
 contract of surety accessory to that of principal debtor, 39, 40. 
 
 when surety's liability arises, 214, 215. 
 
 not till default of principal debtor, 214, 215. 
 
 creditor may sue surety before principal debtor, 216.
 
 532 mDEX. 
 
 8XTRETY—co7itinued. 
 
 unless otherwise stipulated, 216. 
 
 Uoman law enabled surety to compel creditor to sue principal debtor 
 
 lirst, 217. ' 
 this rule prevails in most countries, 218, 
 
 before suing surety, creditor need not request principal to pay, 218. 
 noi' demand payment of surety, 218-220. 
 but that Hometimcs necessary, 218-220. 
 creditor need not infoiTu surety of principal's default, 219, 220. 
 
 in the absence of express stipulation, 217-220. 
 conditions precedent must be fulfilled, 220, 221. 
 person executing surety bond on faith of another executing it, 222- 
 
 226. 
 how surety's liability expressed, 225, 226. 
 surety must usually be specially sued, 226. 
 when surety liable on common counts, 226, 227. 
 parties to action on guaranty, 
 as plaintiffs, 227, 228. 
 as defendants, 227, 228. 
 as to set-oflF. See Set-off. 
 extent of surety's liability, 228, 229. 
 
 sometimes co-extensive with principal del)toi''s liability, 229. 
 considerations for determining surety's liability in complicated cases, 
 
 229-231. * 
 as from what time guaranty operates, 231. 
 intention of parties governs time of oi^eration, 232, 
 surety for conduct of official not liable till legal appointment of latter, 
 
 332. 
 surety may show that recital of complete appointment erroneous, 332, 
 to what things and how far guaranty extends, 232, 233. 
 limit prescribed by guaranty itself to be observed, 233. 
 effect of provision that advances to third party shall not exceed a 
 
 certain limit, 233. 
 liability of sm-ety for payment of calls, 233. 
 surety for conduct of official liable only for breaches of duty within 
 
 scope of office, 234. 
 liability of surety for interest, 235. See Intekest. 
 liability of surety for costs, 235, 236. See Costs. 
 
 creditor must give surety credit for amount received from principal 
 
 debtor, 236. 
 how long guaranty continues in operation, 236. 
 ordinary guaranties in trade, 236. See CoNTiNurNG Guaraijties. 
 guaranties for persons in offices, 253. See Bond. • 
 
 liability of surety for fraud, 278, 279. 
 liability of surety after change in persons to or /or whom guaranty 
 
 given. See Partners.
 
 INDEX. 533 
 
 STTRETY—contimied. 
 
 liability of hanlcrupt surety, 303. "See Bankruptcy. 
 rights of surety. See Contribution ; Creditor ; Debtor. 
 discharge of surety. See Discharge of Sukety. 
 and indorser, difference between, 357 {note). 
 
 TELEGRAPH, 
 
 signature by, sufficient under statute of frauds, 205. 
 TIME, 
 
 when agreement by creditor to give time to principal debtor dis- 
 charges surety, 407-416. 
 
 agreement must be binding, 407, 408. 
 
 valuable consideration necessary to support it, 408. 
 
 whether binding, though not in writing, 409. 
 
 need not give time in express words, 410. 
 
 effect of passive inactivity, 410, 411. 
 
 where condition to agreement giving time not fulfilled, 413. 
 
 agreement must be made with principal debtor, 413. ' 
 
 it must be an agreement " to give time,'''' 413. 
 
 what amounts to ^^ giving time,'''' 413-416. 
 
 where no time really given, 416, 417. 
 
 whether custom of trade justifies indulgence to principal debtor, 416, 
 
 where time really given, surety discharged though creditor did not 
 intend to give time, 416-418. 
 
 when agreement by creditor to give time is a defense at law, 417, 418. 
 
 effect of agreement giving time with reserve against surety, 418, 419. 
 
 whether such reservation may be proved by fo/rol evidence, 419. 
 
 where agreement to give time in efiect accelerates surety's remedies, 
 418. 
 
 effect of agreement to give time after surety has become a principal 
 debtor, 419. 
 
 where creditor has obtained decree in equity against surety, 419, 430, 
 
 agreement by creditor to give time to a cosurety, 355, 
 
 agreement by creditor to give time to surety, 431. 
 TORT, 
 
 promises to answer for third person's tort, whether within statute of 
 frauds, 63, 65, 
 TRANSFER, • 
 
 of a debt due from third person, 107-113, 
 TRUSTEE, 
 
 creditor, when a trustee of execution for surety, 439, 
 
 creditor when a trustee for surety of dividends received from bank- 
 rupt's estate, 325. See Bankruptcy ; Equity,
 
 534: INDEX. 
 
 VALUABLE CONSmERATION. See Considebation. 
 VARIATION, 
 
 of terms of agreement, 387. See Discharge op Subett ; Revoca- 
 tion. 
 
 VERDICT, 
 
 surety discliarged by, 446 {note). ■ , 
 
 WAIVER, 
 
 of rights of surety against creditor, 333-336. 
 WARRANTY, 
 
 difference between it and a guaranty, 1, 2, 3. 
 WITNESS, 
 
 signature by contracting party as a witness to memorandum required 
 by statute of frauds, 205-2U8. 
 
 ^