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most efforts to obtain the same from the principal, the creditor shall not be permitted by virtue of such a condition, to have the power by his own laches, in not proceeding against the principal, to keep alive the surety's liability : and the Statute of Limitations will, notwithstanding such a condition, begin to run from the time when legal proceedings might have been instituted against the principal (h).

Where a debt is due from two or more persons, in respect of a contract which is several, a payment of a sum of money by one, on account of that debt, will not take the case out of the Statutes of Limitations as against any of the other persons (i): but if the contract is a joint contract, a payment by one, is evidence of an acknowledgment by all of the existence of that debt, so as to take the case out of the Statute of Limitations (1); for each of the joint contractors makes the other his agent, for the purpose of making any payment in respect of the money due upon the contract : therefore if P. and S. give their joint promissory note, the former as principal, and the latter as surety, a payment by P. of a sum of money in respect of either principal or interest within six years from the time of action brought, will keep the note alive as against S.(k). But if the joint contract is severed by the death of P., a payment by his representative will not take the debt out of the Statute as against S., but the first-mentioned Statute will begin to run as against S., from the time when the joint liability ceased (1). So if the note is the joint and several promissory note of P. and S., and S. die in the life-time of P.,

(h) Holl v. Hadley, supra ; and see ante, pp. 199 & 200.

(1) See Atkins v. Tredgold, 2 B. & Cress. 23.

(1) Pease v. Hirst, 10 B. & Cress. 122; Burleigh v. Stott, 8 B. & Cress. 36; Whitcomb v.

Whiting, 2 Doug. 652; and see
Perham v. Reynal, 2 Bing. 306.

(k) Pease v. Hirst, 10 B. & Cress. 122; Wyatt v. Hodson, 8 Bing. 309.

(1) Slater v. Lawson, 1 B. & Ad. 396.

a payment by P. will not take the debt out of the Statute as against S.'s representative (m): or if P. die in the life-time of S., will any payment by P.'s representative take the debt out of the operation of the Statute as against the surviving maker (n).

Formerly where the liability of the surety arose under a bond (o), or a judgment (P), satisfaction was presumed, where no payment had been made for a period of twenty years in respect of the bond from the time when it was forfeited, or in respect of the judgment from the time when it was entered up: but this lapse of time without any demand being made in respect of the one or the other, was not of itself a legal bar, but merely a presumption that nothing was due upon them, and this presumption might be rebutted ): now, however, the creditor is, by the statute 2 & 3 Wm. 4, c. 27, barred of all relief, unless his claim be prosecuted within twenty years from the time when his right accrued.

(m) See Atkins v. Tredgold, 2 B. & Cress. 23.

(n) Slater v. Lawson, supra.

(0) Willis's Case, Holt, 123; Colsell v. Budd, i Camp. 27.

(p) Willaume v. Gorges, 1

Camp. 217.

(9) See the observations of Lord Mansfield, C. J., and Buller, J., in Oswald v. Legh, 1 T. R. 270 ; and see Willaume v. Gorges, 1 Camp. 217.

224

PART IV.

OF JUDICIAL PROCEEDINGS.

CHAPTER I.

OF ACTIONS BY THE CREDITOR.

The nature of the action for enforcing at law, the contract of a surety who is liable for the debt, default, or miscarriage of a third person, depends upon the nature of the instrument under which the surety's liability attaches. If the surety's liability arise upon a guarantee, the contract must be enforced by a special action of assumpsit, to recover damages for the breach of the promise contained in the guarantee (a), and not upon a general indebitatus assumpsit (b); for the promise being merely a collateral promise, there is no debt, as between the creditor and the surety (c): and it is an objection to the plaintiff's recovering, even after verdict, if the undertaking is not declared on specially (d).

The plaintiff's declaration, if framed upon a deed, must be pleaded with a profert, to enable the defendant to crave oyer, and prepare his plea (e) : but if the plaintiff declare on a collateral promise in writing, signed, but not under seal, he is not obliged to make profert of it, nor need he state in the declaration that it is in writing (S), or that it was signed by the defendant (g), or set out the terms of it (h): it is sufficient if the plaintiff set out in the declaration, enough of the terms of the agreement, to show he has good cause of action (i). And even where the defendant pleads, that the supposed promise declared on was a guarantee for the debt of another, and was contained in a memorandum in writing in the words and figures set forth in the plea, from which it would appear that there was no consideration to support the promise, -or, that the promise was not signed by the defendant according to the Statute, the plaintiff may nevertheless reply, that a memorandum of agreement, in writing, stating the consideration, was signed by the defendant : without setting out such memorandum in the replication (k). If, however, the plaintiff, knowing that the contract as set forth in the plea is not correctly stated, demur to the plea, he will be held to have admitted the contract to be as stated in the plea, and the court will not assume that there were other terms in the memorandum, which might have been proved at nisi prius (1).

(a) Butcher v. Andrews, 1 Salk. (c) Rozer v. Rozer, supra ; 23; Mines v. Sculthorpe, 2 Camp. Marriott v. Lister, supra. 215; Marriott v. Lister, 2 Wils. (d) Rozer v. Rozer, 2 Ventr. 141; Rozer v. Rozer, 2 Ventr. 36; Butcher v. Andrews, i Salk. 36 ; but see Kent v. Derby, 1 23; and see Cooke v. Samburne, Ventr. 311.

1 Sid. 182. (6) Butcher v. Andrews, supra ; (e) Lilley v. Hewitt, 11 Price, Anon. 1 Ventr. 293.

494.

A plea by a surety to an action brought against him by the creditor on his guarantee, that the creditor bad, “ without the knowledge or consent of the surety, allowed and granted to the principal,

(f) Lysaght v. Walker, 5 Bli. N. S. 1; Anon. 2 Salk. 519; Lilley v. Hewitt, supra; Case v. Barber, T. Raym. 450; and see Stephen on Pleading, p. 418, 2nd ed.

(g) Lilley v. Hewitt, supra.

(h) Lilley v. Hewitt, supra ; Cryps v. Baynton, 3 Bulstr. 31.

(i) Sharp v. Rolt, Noy, 83 ;

Lilley v. Hewitt, 11 Price, 494.

(k) Wakeman v. Sutton, 2 Ad. & Ell. 78; Lilley V. Hewitt, supra ; Lysaght v. Walker, supra ; but see Lowe v. Eldred, i Cr. & Mees. 239.

(1) Clancy v. Piggott, 2 Ad. & Ell. 473; Maggs v. Ames, 4 Bing. 470.

Q

longer and further time for payment” of the monies due from the principal to the creditor, will be held bad on a general demurrer, it not disclosing any contract whereby the creditor was prevented from suing the principal (m). And where a surety for a collector of taxes was proceeded against on a bond, given by him to the commissioners, acting in the execution of the Acts of Parliament relating to assessed taxes, for his principal's duly accounting ; and the acts contained a clause, that no bond should be put in suit against the surety for any deficiency, other than what should remain unsatisfied after the sale of the lands, tenements, goods and chattels of the collector, a plea that the commissioners had not seized the lands, &c. of the collector, must show that there were lands, &c. of the collector which might have been seized, and sold to supply the deficiency (n).

A guarantee not addressed to any one, must be declared on as given to the party to whom it was delivered (): and if a guarantee be addressed to one of several partners of a firm, it may be declared on as given to all; if there is evidence to show that it was given for the benefit of all (p), or that the partner to whom it was addressed, did not carry on any separate business in respect of the matters and things for which the guarantee was given (7).

Where the defendant promised the plaintiff, who was an innkeeper, upon the defendant's friend putting up at the inn, to pay him for such necessaries as his friend should want, and the plaintiff should provide him with, and the plaintiff in his declaration averred, that he had provided for him necessaries amounting to such a sum, the declaration (m) Clarke v. Wilson, 3 Mees.

(p) Garrett v. Handley, 4 B. (n) Wilks v. Heeley, 1 Cr. & Mees. 249.

(9) Walton v. Dodson, supra. (0) Walton v. Dodson, 3 Car.

& P. 162.

& W. 208.

& Cress, 664.

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