sidered this prima facie evidence in the absence of any 2 Starkie, 368, inducement on the son's part to commit a crime. Watkins v. And we have already seen that the character of agent cannot be supported by one of the contracting parties; as in the case of the auctioneer who minuted down the names of the parties, and after- Selwyn, p. 851. wards attempted to maintain an action. ty's liability. As a general rule, it may be laid down, that a surety Extent of sureshall never be liable beyond the engagement he con'templated at the time of his undertaking. And unless the offer of a surety be accepted, the mere expression of willingness to guarantee will not be sufficient. In a paper writing were these words: "Indeed I have no 1 Maule & Sel. 557, M'Iver v. Comyn, p. 208. Richardson; objection to guarantee you against any loss from giving them credit." This overture was not expressly accepted, though goods were furnished in consequence of it, and there was a judgment of nonsuit against the plaintiff who sued on the supposed contract, for the defendant ought to have had notice that it was regarded as a guarantee, and meant to be accepted, or there should have been a subsequent consent on his part to convert it into a conclusive guarantee. In the great case of Lord Arlington v. Merricke, there was a bond which recited that the plaintiff had deputed a certain person to be his deputy post-master for six months, conditioned for the due execution of the office during the time that person should continue post-master, and he so continued for more than six months. On default made, and action brought, the Court restricted the burden of this undertaking to the time mentioned 2 Saunders,411, Lord Arlington in the recital of the bond, six months; and this case. Merricke. has been acted upon as a leading authority ever since. And so careful are the Courts of this principle, that suretyships shall not be unduly extended, that where no limitation appeared in the condition of a bond, and no specific time was pointed out, yet as the office for. Wardens of St. 2 New Rep.175, the performance of which the bond had been given, was Saviour's,South-annual, it was held that the security was satisfied at wark v.Bostock; the end of the first year. 2 Bingham, 32, Leadley v. Evans. A guarantee, unless specially worded, has a prospective, not a retrospective operation. A lady living in Gloucestershire promised to be answerable to the amount of 5,000l. for a certain firm. On receiving the guarantee, the plaintiffs, bankers, cancelled an old note, and delivered up the bills which they held as securities for an existing debt; on this the firm returned the bills with a new promissory note, but no money passed; and the Court were of opinion that this transaction was merely an interchange of the securities in existence at the time, and that, however liable to the extent of her engagement, the defendant would not be pressed be8 Taunton, 208, yond the plain and manifest intent of the instrument; Glyn v. Hertel. judgment of nonsuit was therefore given against the plaintiffs. Fell, p. 114. However, there are several cases in which a slight variance from the contract has been immaterial, the substance having been complied with. One proposed to sell goods to another, the money to be paid at a future day, provided a third person will guarantee; the goods are then sold on these terms: part of the money to be paid down, and the residue at a future 1 Rolle. Abridg day; held a good consideration to warrant an action against the surety. ment, 20. It is worthy of remark, that no additional risk was in this case imposed on the person guaranteeing, but rather the contrary. Goods were ordered on the 6th of December; the guarantee was given on the 7th, and the goods were delivered on the 7th; it was objected that the contract had been prior to the guarantee, but as the sale of 2 Starkie, 426, these goods was not complete until the delivery, and as the delivery was posterior to the guarantee, and Simmons v. Keating. on the faith of it, Lord Chief Justice Abbott's opinion was in favour of the action. There was a guarantee and eighteen months credit; by the invoice it appeared that twelve months credit only had been given, and this variance would have been considered fatal, but that the plaintiff was allowed to prove the inaccuracy of the invoice, and to show that eighteen months credit had in reality been given. So that the principle of restraining the surety's liability to the particular contract he has embraced, seems very clear. Moreover, the guarantee shall not be called upon, except there be a default upon the particular occasion against which he has chosen to indemnify. There was an undertaking to save the plaintiff harmless 2 Starkie, 406, Bulkeley v. against any loss he might sustain from the defendant's Lord. son becoming bankrupt; and, in fact, the person in question did commit an act of bankruptcy, but a commission never issued, on which the Chief Justice directed a nonsuit, thinking that the son had not become a bankrupt, and the Court afterwards said, "It was possible "that the son might be unfortunate enough to commit "an act of bankruptcy, although he was perfectly "solvent; but it could not be the meaning of the guarantee to make the father responsible in such case, Id. 408. "no commission being sued out." The guarantor must be informed of any private terms which the principals have agreed to, or in the absence of that information, the contracts will be vitiated. Another question has frequently arisen as to the continuance of a guarantee; and though, as we have seen above, the suretyship shall not be unduly extended, yet where the obvious meaning of the instrument is that 12 East, 227, a credit shall continue until recalled, the guarantor will Pritchard. continue liable. Thus, a contract to guarantee " for any goods he hath or may supply my brother W. P. with, "to the amount of 100l.," has been construed to extend Mason v. 2 Maule & Sel. Duke of Marl 18, Kirby v. borough. to goods furnished to the brother at any time till notice to put an end to it. The following is an example of a non-continuing guarantee. A bond was entered into by the Duke of Marlborough and another, conditioned for the payment of all such sums, not exceeding 3,000l., which should at any time thereafter be advanced by the plaintiffs to that other person: this security was held to be a guarantee to the amount of 3,000l. only; when an advance was made to that extent, the guarantee became functus officio, and was not a continuing guarantee. 66 Again: "Memorandum, 23d September 1818: I en3 Barn, & Ald. gage to guarantee the payment of Mr. A. M. to the 593, Melville v.extent of 60l. at quarterly account, bill two months, "for goods to be purchased by him of," &c. This was held a continuing guarantee. Hayden. By Bayley, J. "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 ac"count for them should be rendered quarterly." If a surety is desirous of releasing himself from the burthen of future incumbrances in a case of continuing guarantee, it is proper that he should expressly revoke his security, if he be able to do so. A father was bound for his son, an apprentice; the son embezzled his master's property, and the father having satisfied the claim, wrote a letter to request that his son might not in future to be trusted with cash, But this proceeding was not sufficient to discharge him 2 P. Williams, from the consequences of future embezzlements; he ought to have got the security delivered up, and so have made some end of the matter. 288, Shepherd v. Beecher. Supposing that the creditor and debtor continue to have dealings together in other concerns than that in which the surety is bound, and the debtor make a general payment, the creditor has the power of applying the sums so received to the transactions independent of the Fell, p. 111. suretyship, and so of holding the surety still liable. But where there is any ground for presuming that the payment is made on account of the debt secured by the guarantee, it is an inference which the Court will willingly draw in the surety's favour; as where there Marryatts v. was a payment of the exact amount of goods previously White. supplied under the guarantee, and a discount allowed. The buyer of cottons, having employed an agent abroad, informed a firm here that it would be of advantage to him that his bills should be negotiated through their house, and requested them to honour his agent's drafts. This guarantee was held not to be restricted to bills drawn for cottons only; but, on the other hand, the firm could only recover of the guarantee on bills proved to have been received from the agent in the course of business from him, and under his representation that they were drawn to meet shipments on his principal's account. 2 Starkie, 101, partnership. A guarantee is so far liable to be interrupted by the Subsequent introduction of a partner, as that it will not operate as a security for fresh advances uuder such circumstances. For example, one is bound under a condition that his principal shall account for all sums of money received for another's use by such principal; the principal takes a partner with the knowledge of this person whose 3 Campb. 53, money he holds; the surety is not liable after this for worth. any sum received after the partnership. So a bond conditioned to secure advances made by five bankers. will not operate to protect sums lent by four of these after the decease of the fifth; so soon as one of the obligees dies, the security is so far at an end. But" a bond may be drawn for the obligor to be "answerable not only to the present but to all future "partners in the house." As where one bound himself to the trustees of the Bellairs v. Ebs 4 Taunton 673, Weston v. Bar- 484, Strange v. By Lawrence, |