there be a guarantee for the price of goods "for a certain sum to be paid at a future day," and the goods be sold to the principal on the terms that part be paid down and the residue at a future day, the guarantee is good for the residue, although all the money was not by the bargain to be paid at a future day.

It is clear that mere gratuitous forbearance, without any binding agreement or obligation to refrain from taking proceedings, cannot exonerate the surety at law or in equity; for his situation and his right in equity, even before he is actually damnified, to compel the principal to exonerate him, are not thereby prejudiced (y). And the simply taking a new security from the debtor, expressly as a further security only, without agreeing to give him time (z); or signing a composition deed, by which the debt is to be paid by instalments, with the express reservation of a right to enforce securities (a), does not affect the remedy against the surety. Nor does the neglect of the creditor to examine into the accounts of the debtor, respecting which the guarantee was given, with active diligence, discharge the surety at law, although an additional loss were perhaps occasioned by the neglect (b); nor is the surety discharged by the creditor's signature of the certificate of the principal under a commission of bankruptcy against him, although the surety required the creditor to refrain from signing it (c). Nor is the fact of the principal debtor taking the benefit of the insolvent act a discharge of his surety for the payment of an annuity, and the insolvent continues liable to indemnify such surety (d). But where a debt having been partly guaranteed, the debtor becomes bankrupt, and the creditor proves for a larger amount than that

(y) See Theobald, 135; Chitty, B. 8th ed. 442, 9th ed. 409; Philpot v. Briant, 1 M. & P. 754, per Best, C. J.; Eyre v. Everett, 2 Russ. 381; Heath v. Key, 1 Y. & J. 434; Orme v. Young, Holt, N. P. C. 84; Goring v. Edmonds, post, 533; Chitty, jun B. 100 v; Clarke v. Wilson, 3 Mee. & W. 208; Lyon v. Holt, 5 M. & W.

250.

(z) Twopenny v. Young, 3 B. & C. 208; 5 D. & R. 259, S. C.; Chitty, B. 7th ed. 213, 214, 8th ed. 445; Emes v. Widdowson, 4 C. & P. 151.

(a) Thomas v. Courtnay, 1 B. &

Ald. 1; Nicholls v. Norris, 3 B. &
Ad. 41.

(b) Trent Navigation Company v. Harley, 10 East, 34; London Assurance Company v. Buckle, 4 Moore, 153; Goring v. Edmonds, infrà, note (ƒ); Nares v. Rowles, 14 East, 514.

(c) Brown v. Carr, 7 Bing. 508; 2 Russ. 600, S. C.; Langdale v. Parry, 2 D. & R. 337.

(d) Hocken v. Brown, 4 Bing. N. C. 400; 6 Scott, 194, S. C.; Abbott v. Bruere, 5 Bing. N. C. 598; 7 Scott, 753; ante, 203, 204.

covered by the guarantee, the dividends must be applied in case of the guarantor rateably to the whole debt proved (e).

In Goring v. Edmonds (ƒ), the facts were, that the defendant guaranteed the payment of the price of goods sold to his son. The plaintiff received part of the price, and afterwards made repeated applications for the residue. More than two years having elapsed from the time when the price should have been paid, the son gave the plaintiff a bill (it seems at two months) on a third person, which was dishonoured; and soon afterwards the son became bankrupt. The bill did not appear to be a real or bonâ fide transaction, as the acceptor was not a man of substance; nor was it shown that he was indebted to the drawer at the time. The plaintiff gave no notice to the defendant that he had taken the bill, or that it was dishonoured, or of the state of the account with the son, or of the application to him; it was held that a verdict for the plaintiff was correct, on the ground that the defendant had not been discharged from his liability as surety. But if the creditor, without the consent of the surety (g) agree and become bound to give time to the principal debtor, the surety is clearly, as a general rule, discharged from responsibility at law and in equity (h). In Combe v. Woolf (i), it appeared that the defendant guaranteed the payment of porter to be delivered to J., the memorandum containing no stipulation as to the term of credit. The custom of the plaintiff was to give six months' credit, and then sometimes to take a bill at two. The plaintiff,

(e) Raikes v. Todd, 1 P. & Dav.

138.

(f) 6 Bing. 94; 3 M. & P. 259, S. C. After the dishonour of the bills, the defendant admitted his liability, to the plaintiff's attorney, but was not then informed that the bills had been given. The question left to the jury was, whether time had been given 'without the consent of the surety. As to the effect of taking a bill from the principal, and being guilty of laches thereon, see Warrington v. Furber, 8 East, 242; Phillips v. Astling, 2 Taunt. 206; Murray v. King, 5 B. & Ald. 165; Holbrow v. Wilkins, 1 B. & C. 10; 2 D. & R 59; Van Wart v. Woolley, 3 B. & C. 439; 5 D. & R. 374, S. C.

(g) Tyson v. Cox, 1 Turn. C. C. 395; Maltby v. Carstairs, 1 M. & R. 54; 7 B. & C. 735, S. C., and next note.

(h) Nisbet v. Smith, 2 Bro. C. C. 579; Burke's case, cited in Ex parte Gifford, 6 Ves. jun. 509; Rees v. Berrington, 2 Ves. jun. 542; see the cases in Theob. 127; Fell, 142; Lewis v. Jones, 4 B. & C. 515, note; Chitty, B. 7th ed. 193, 292; 8th ed. 441; 2 E. Chitty, Eq. Index, 1174; 13 Petersd. Ab. 778. In Boultbee v. Stubbs, 18 Ves. 20, a joint bond was given by the principal and surety. The creditor took a mortgage for part, and a warrant of attorney, payable by instalments, for the residue. The Chancellor held that the surety was discharged, although the mortgage and warrant of attorney were taken expressly without prejudice to any securities held by the creditors; see note, Maltby v. Carstairs, 1 M. & R. 562.

(i) 8 Bing. 156; 1 Moo. & Sc. 241, S. C.

without the defendant's knowledge, allowed three months to elapse after the six months, and then took a promissory note at two months from J. for the debt, thus virtually giving a credit of eleven months. The court held that the defendant, as surety, was exonerated, upon the ground that his situation was altered and prejudiced, by the plaintiff having, by taking the note, precluded himself during its currency from proceeding against the principal.

So in Howell v. Jones (k), where bankers were in the habit of taking the acceptances of their customers for advances, a guarantor, who was their attorney, but who was not proved to be Cognizant of their custom, was held to be discharged by their taking an acceptance from the principal debtor, and thereby giving him time.

The technical rule, that the effect of a specialty (1) cannot be defeated at law by a parol agreement, or a written instrument not under seal, in variation of its terms (m), will not be departed from in a court of law, even in favour of a surety; although the fresh agreement of the nature alluded to extend the period limited by the deed for the payment of the debt guaranteed. It has therefore been held (n), that in an action upon a bond against a surety, it is no defence at law, that by parol agreement time was given to the principal, and that a warrant of attorney was accepted, to secure payment at the expiration of the prolonged

credit.

It is a well established principle, that the acceptor of a bill of exchange, and the maker of a promissory note, respectively stand in the relative positions of principal debtors, as regards the other parties to the instrument. The subsequent parties are in law, in effect, sureties to the holder for the party thus primarily liable; and are consequently discharged from responsibility, if the holder of the bill or note, without their consent,

(k) Howell v. Jones, 1 C., M. & R. principal, was in vain pleaded by bail

108.

(1) See ante, 3, 7.
(m) Ante, 113.
(n) Davey v.

Prendergrass,

V.

5 B. &

Jarrold,

Ald. 187; 6 Madd. 124, S. C., in
See also Bultcel

equity.

in an action upon a recognizance of bail. Semble, that relief in equity can be obtained in such cases, if the surety be prejudiced; per Abbott, C. J., Davey v. Prendergrass, and S. C. in Equity; Nisbet v. Smith, 2 Bro. C. C. 579; Burke's Case, cited in Er parte

per Abbott, C. J., where a parol agree- Gifford, 6 Ves. jun. 809; and in Rees 8 Price, 467, cited 5 B. & Ald. 192,

ment to give security

or time to the

v. Berrington, 2 Ves. jun. 540.

release, or bind or oblige himself to give time to, the acceptor or maker, to the express or implied prejudice of the other parties (o).

In the case of Price v. Edmunds (p), it was held, that if a joint and several promissory note be given by A. and B., and the latter be surety, and an action be brought against A., the surety, B., (even assuming that parol evidence can be received, to show that he was only a surety,) is not discharged by the creditor taking from A. a cognovit, payable at a period before which judgment and execution in the original action could not have been obtained.

The negligent loss of or injury to collateral securities, (held by the creditor), or a fund in his hand, to the prejudice of the surety, will, under circumstances, afford the surety ground for relief in equity (q).

But a guarantee given by defendant, and which it was provided should be void if the creditor "should omit to avail himself to the utmost of any security he held of W. R., and if anything should prevent defendant from retaining the proceeds of an execution levied on the property of W. R.;" was held not to be avoided by the plaintiff's omitting to put in suit a bill of exchange drawn by W. R., and accepted by an insolvent still in prison, or by the defendant's being deprived 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 such execution (r).

We have before referred to a case, in which it was determined that if a party agree, on being allowed a commission, to indorse a bill to be given for goods to be supplied to a third person, no liability to indorse the bill arises, unless the creditor proffer the bill to the surety for his indorsement within a reasonable time (s). And where a broker, on purchasing goods for his

(o) See the various cases on this subject, Bayl. on B. 5th ed. 338; Chitty B., 8th ed. 441; 9th ed. 408, 409; Roscoe on B. 74; Chitty, jun. on Bills, 100 v; Theob. P. & Surety, 180 to 205. An accommodation acceptor not discharged by time given, or a release by an indorsee to the drawer, &c.; Harrison v. Courtauld, 3 B. & Ad. 36; and see Howell v. Jones, 1 C., M. & R. 97, 107; Hall v. Cole, 4 Ad. & E. 577.

principal, agreed with him for a per centage to indemnify him against any loss on a resale, it was held that the undertaking was discharged, when the principal had a fair opportunity of selling to advantage, (the market price of the goods having gradually risen,) of which he neglected to avail himself; and that the broker was not liable on a subsequent resale at a loss (t).

SECTION III.

RESPECTING The Person.

Of a Contract to Marry.

A CONTRACT to marry must in general be reciprocal, and obligatory upon both the parties (u). An action on such contract may be maintained by a man against a woman; for if the promise of the latter be void, the engagement of the man would be nudum pactum (x). However, in the case of an infant, whose promise is voidable, an exception exists; as an infant may sue, though not liable to be sued, for a breach of promise to marry (y). It is not in cases of this nature necessary to prove an express promise to marry in totidem verbis. The contract may be evidenced by the unequivocal conduct of the parties, and by a ge

the debtor became insolvent, and after having kept the bill for seventeen months, out of the eighteen for which it was given.

(t) Curry v. Edensor, 3 T. R. 524; Doe v. Smith, 2 T. R. 436.

(u) See ante, 9, 16; post, 537, note (z); 1 Rol. Ab. 22, 1. 5; Hebden v. Rutter, 1 Sid. 180; Rutter v. Hebden, 1 Lev. 147; Harrison v. Cage, Carth. 467; see post, 538, note (k); 1 Bla. Com. 433, Chitty's ed. and id., notes (1) and (2); 4 G. 4, c. 76; 6 G. 4, c. 92. See post, chapter 4, as to contracts in restraint of marriage.

(x) Harrison v. Cage, Lord Raym. 386; 1 Salk. 24, S. C. A promise to pay money in consideration of discharging or disengaging the defendant from his promise to marry the plaintiff, is binding; and it is sufficient to aver generally that the plain

tiff did discharge or disengage the defendant, &c., without showing how; Baker v. Smith, cited in Aglionby v. Towerson, Sir T. Raym. 400. A bill in equity lies to compel a discovery whether a party had promised marriage; Vaughan v. Aldridge, Forrest's R. 42.

(y) Holt v. Ward, Stra. 937, 850; Fitzgib. 175, 275, S. C.; ante, 155. But if a person, who had promised marriage during his non-age, continued his addresses after attaining the age of twenty-one years, as if the contract still existed, and did not then disavow the engagement, he would probably be held to have ratified his promise, although no subsequent express promise could be proved. Sed qu. for a new promise by an infant must be in writing to revive his liability, see ante, 152, 155.