of a guarantor or surety is duly ascertained and understood, by a fair and liberal construction of the instrument, the principle is well settled that the case must be brought strictly within the terms of the guaranty, (1) and the liability of the surety cannot be extended by implication. The claim against a surety is strictissimi juris; and it is a well settled principle, that a surety who pays the debt of his principal, will, in a clear case in equity, be substituted in the place of the creditor to all liens held by him to secure the payment of his debt, and the creditor is bound to preserve them unimpaired when he intends to look to the surety for payment.b (2) But a further

• In Birkhead v. Brown, 5 Hill's N. Y. Rep. 635, it was held, that there must not be any departure whatever from the strict terms of the contract, as regards a surety or guarantor, and if he agreed to sustain drafts at sixty days' sight, he is not bound by drafts at ninety days' sight; and if the creditor by any valid agreement disables himself from suing the debtor, even for a single day, the surety is released. On the other hand, a creditor is not bound to active diligence to preserve his rights. He may merely remain passive. Theobald on Principal and Surety, 80. King v. Baldwin, 2 Johnson's Ch. Rep. 559. Johnson v. The Planters' Bank, 4 Smedes & Marshall, 165. This is the true principle to be extracted from all the cases. 3 Merivale, 272-279. 8 Bingham, 156. 17 Wendell, 179. 6 Taunton, 352. But for the better protection of the surety, it is a general rule that there can be no recovery against him, where his character appears on the face of the instrument, without declaring specially on the contract. Bronson, Ch. J., 1 Denio, 106. It was adjudged in the above case of Johnson v. The Planters' Bank, that the surety was not discharged by a failure of the creditor to present his claim to the administrator of the principal in due season.

Bacon v. Chesney, 1 Stark. N. P. Rep. 192. Myers v. Edge, 7 Term, 254. Combe v. Woolfe, 8 Bingham, 156. Walsh v. Baitie, 10 Johns. Rep. 180. Lanuse v. Barker, ibid. 327, 328. Dobbin v. Bradley, 17 Wendell, 422. Cheesebrough v. Millard, 1 Johns. Ch. R. 409. 413. Goswiler's Estate, 3 Penn. R. 203. Hereford v. Chase, 1 Rob. Loui. R. 212. Wade v. Green, 3 Humph. Tenn. R. 547. See, also, infra, vol. iv. 377. Bell's Principles of the Law of Scotland, 77. But the substitution or subrogation exists, not in favour of all who pay a debt, but only of those who, being bound for it, discharge it. Harrison v. Bisland, 5 Rob. Loui. R. 204.

There seems to be some confusion in the cases as to the construction and effect of the word guaranty. It may be considered, as Mr. Justice Story observed, a clear principle, that the contract of guaranty is not an absolute but a conditional contract, and this strict construction is not to be departed from unless the contract

(1) If payment by a vendes be guarantied, on condition that the vendee will give credit until a specified time, the guarantor will not be liable if a shorter credit be given, though the vendor did not require payment until the specified time. Walrath v. Thompson, 2 Comst. R. 185.

(2) Goodyear v. Watson, 14 Barb. R. 431. La Farge v. Herter, 11 Barb. R. 159. Watson v. Alcock, 19 Eng. L. & E. R. 239.

pursuit of this subject of guaranty would not strictly appertain to the doctrine of negotiable paper;a and I shall conclude the present general outline of that subject, with some notice of the principal publications on bills and notes.

(10.) Of the principal treatises on bills and notes.

It would have been impossible to enter into greater detail of the distinctions and minute provisions which apply to negotiable paper, without giving undue proportion to this branch

of these elementary disquisitions. The treatises and lead*125 ing *cases must be thoroughly understood before the

student can expect to be master of this very technical branch of commercial law; and a brief notice of the best works on the subject will serve to direct his inquiries.

The earliest English work on bills is in Malynes' Lex Mercatoria. The author was a merchant, and the work was compiled in the reign of King James I., and dedicated to the king. That part relating to bills of exchange is brief, loose and scanty, but it contains the rules and mercantile usages then prevailing in England and other commercial countries. It was required, at that early day, that the bill should be presented for acceptance, and again for payment, with diligence, and at seasonable hours, and on proper days; and the default in each case was to be noted by a notary, and information of

requires it, and the guarantor is entitled to demand and notice within a reasonable time, as in common cases of guaranty. See Story on Promissory Notes, pp. 578 -589, where the modern American cases are criticised and examined. And on this subject of surety it is adjudged, that a judgment obtained against him does not change the character of his debt, nor his relation to his principal debtor, and delay granted to the latter will release the former, in the same manner as if no judgment had been obtained. Gurtine v. Union Bank, 10 Robinson's Loui. R. 412. But though the principal debtor be discharged from his obligation by some personal disability, as coverture, infancy, the surety will be held bound. Kimball v. Newell, 7 Hill's N. Y. R. 116. This was also the conclusion of the civil law. Domat, b. 3. tome iv. sec. 1. art. 10.

■ The student will find the law concerning mercantile guaranties, and of principal and surety, fully examined, and the substance of the numerous cases well digested, in Fell's Treatise on Mercantile Guaranties, and in Theobald's Treatise on the Law of Principal and Surety, published at London, in 1832, and at Philadelphia, in 1833. Mr. Sedgwick, in his Treatise on the Measure of Damages, devotes a whole chapter (ch. 11) to the rule of damages growing out of the contract of principal and surety, and the numerous cases are fully and critically examined, with his usual acuteness and candour.

it sent to the drawer with all expedition, to enable him to secure himself. If the drawee would not accept, any other person was allowed to accept for the honour of the bill. Malynes takes no notice of promissory notes or checks, and he even laments that negotiable notes were unknown to the law of England.

The next English treatise on the subject was that by Marius, published in the year 1651, and that treatise has been referred to by Lord Holt and Lord Kenyon, as a very respectable work. *Marius followed the business of a notary public *126 at the Royal Exchange, in London,for twenty-four years, and he had, of course, perfect experience in all the mercantile usages of the times. His work is far more particular, formal and exact than that of Malynes. The three days of grace were then in use; and Marius decides the very point which has been again and again decided, and even in our own courts, that if the third day of grace falls on Sunday, or a holiday, or on no day of business, the money must be demanded on the second day, and he lays down the rule of diligence in giving notice with more severity than is consistent with the modern practice ;a for he stated, that the notice of the default of payment must be sent off by the very first post after the bill falls due. He says, likewise, that verbal acceptances were good, and that you may accept for part, and have the bill protested for the residue. It is quite amusing to perceive that many of the points which have been litigated, or stated in our courts, within the last thirty years, are to be found in Marius; so true it is, that case after case, and point after point, on all the branches of the law, are constantly arising in the courts of justice, and discussed as doubtful or new points, merely because those who raise them are not thorough masters of their profession. The next writer who treats on the subject of bills is Molloy. He was a barrister in the reign of Charles II.; and in his extensive compilation, de jure Maritimo, which was first published in 1676, he cast a rapid glance over the law concerning bills of exchange; but that part of his work is far inferior to the treatise of Marius.

See ante, 106.

b Multa ignoramus, quo nobis non laterent si veterum lectio nobis esset familiaris. 2 Inst. 166.

Beawes' Lex Mercatoria Rediviva is a much superior work to that of Malynes, and it appears, by its very title, to have been intended as a substitute. It contains a full and very valuable collection of the rules and usages of law on the subject of bills of exchange. Promissory notes were then taken notice of, though they had not been so much as alluded to in the formal and didactic treatise of Marius. They were not introduced into general use until near the close of the reign of Charles II., and for this we have the authority of Lord

Holt in Buller v. Crisp.a Beawes is frequently cited *127 in our *books as an authority on mercantile customs;

and a new and enlarged edition of his work was published by Mr. Chitty, in 1813. The next work on the subject of bills and notes was by Cunningham, and it was published about the middle of the last century. It consisted chiefly of a compilation of adjudged cases, without much method and observation. It was mentioned by the English judges as a very good book; but it fell into perfect oblivion as soon as Kyd's treatise on bills and notes appeared, in the year 1790. Mr. Kyd made free use of Marius and Beawes, and he ingrafted into his work the substance of all the judicial decisions down to that time. His work became, therefore, a very valuable digest to the practising lawyer, and particularly as during the times of Lord Holt and Lord Mansfield, the law concerning negotiable paper was extensively discussed and vastly improved. Mr. Bayley, afterwards a judge of the K. B., published in 1789, a little before the work of Kyd, a small manual or digest of the principles which govern the negotiability of bills and notes. As a collection of rules, expressed with sententious brevity and perfect precision, it is admirable. In a subsequent edition, he stated also the cases from which his principles were deduced. A work of more full detail and of a more scientific cast, seemed to be still wanting on the subject, and that was well supplied by Mr. Chitty's treatise on bills, notes and checks, first published in 1799. He had recourse, though in a sparing degree, to the treatise of Pothier, for illustration of the rules of this part of the general lawmerchant. It is obvious that a more free and liberal spirit

6 Mod. Rep. 29.

The Treatise on Bills of Exchange, by Mr. Justice Story, which appeared

of inquiry distinguishes the professional treatises of the present age from those of former periods. The works of Parke and Marshall on Insurance, and Abbott on Shipping, and Chitty and Story on Bills, and Jones and Story on Bailment, have all been enriched by the profound and classical productions of continental Europe on commercial jurisprudence.

The treatise of Pothier on bills is finished with the same order and justness of proportion, the same comprehensiveness of plan and clearness of analysis, which distinguish

his other *treatises on contracts. His work is essentially *128 a commentary upon the French ordinance of 1673; and he had ample materials in the commentary of M. Jousse, and in the treatises on the same subject by Dupuy de la Serra, and by Savary, to which he frequently refers. He also cites two foreign works of learning, on the doctrine of negotiable paper, and those are Scacchaia de Commerciis et Cambio, and Heineccius' treatise, entitled, Elementa Juris Cambialis. The latter work contains very full and satisfactory evidence of the professional erudition of the Germans on subjects of maritime law.a Heineccius refers to the ordinances of various German states, and of several of the Hanse towns, relating to commercial paper, and he cites eight or ten professed German treatises on bills of exchange.b

It has been a frequent practice on the European continent, to reduce the law concerning bills, as well as concerning other maritime subjects, into system, by ordinance. The commercial ordinance of France, in 1673, digested the law of bills of exchange, and it was, with some alterations and amendments, incorporated into the commercial code of 1807. Since the publication of the new code, M. Pardessus has written a valuable commentary on this, as well as on other parts of the code. He writes without any parade of learning, and with the clear

since the fourth edition of this work, has copied largely from Chitty, and it is full and methodical, and executed with his masterly ability.

Mr. Justice Story, in his Treatise on Bills of Exchange and Promissory Notes, has enriched his work with copious citations and illustrations drawn from Heineccius, as well as from other continental civilians; and they are undoubtedly the most elaborate and complete treatises extant on the element y principles of the subject.

See Heineccii, Opera, tome vi. in fine.