I guarantee the payment of any goods which I. Stadt delivers to I. Nicholls"(t).

"I hereby agree to guarantee the payment of goods to be delivered in umbrellas and parasols to I. and E. A. Smee, according to the custom of their trading with you, in the sum of 2001."(u).

In the former case, the party giving the guarantee will be answerable for the value of all goods delivered to I. Nicholls, until the guarantee is revoked; in the latter case, for umbrellas and parasols delivered according to the custom of the trade, in any sum not exceeding 2007.

2ndly. If the writing or undertaking is simply a proposition tending to a guarantee, it must, in order to be converted into an absolute guarantee, receive the assent of the person to whom it is offered; and such assent (where an assent or acceptance of the proposal is all that is required) must be communicated to the person making the proposition (v), or some proof given, that the person making such proposition had subsequently consented to its being conclusive as a guarantee (w); and where the proposition is made subject to any terms or conditions, a strict compliance in every respect with the terms and conditions contained in such proposition, is necessary to make it binding (r).

(t) Stadt v. Lill, 9 East, 348; S. C. nom Stapp v. Lill, 1 Camp.

242.

(u) Hargreave v. Smee, 6 Bing. 244; S. C. 3 Moo. & P. 573.

(v) M'Iver v. Richardson, 1 M. & Sel. 557; Symmons v. Want,

2 Stark. 371; Mozley v. Tinkler, 1 Cr. M. & Ros. 692.

(w) M'Iver v. Richardson, supra. (x) Gaunt v. Hill, 1 Stark. 10; and see Payne v. Ives, 3 Dowl. & Ry. 664, (2).

(2) In this case, the plaintiffs were coach lace manufacturers, and had shipped goods to India on account of a Mr. John Stubbs, upon the credit of the following guarantee, which had been signed by the defendants: "We undertake to indorse any bill or bills Mr. John Stubbs may give to Messrs. Payne & Co. in part payment of an order

The following are examples of propositions tending to guarantees.

"Messrs. M'Iver & Co.

"Gentlemen,

"As I understand Messrs. David Anderson & Co., of Quebec, have given you an order for rigging, &c., which will amount to about 4000/., I can assure you, from what I know of D. A.'s honour and probity, you will be perfectly safe in crediting them to that amount; indeed, I have no objection to guarantee you against any loss from giving them this credit" (y).

"Sir,

"I have no objection to guarantee the payment of rent, as far as that of each quarter, during Mr. T. Want's continuance in possession, but you must see that no arrears of rent accrue " (≈).

(y) M'Iver v. Richardson, 1 M. (z) Symmons v. Want, 2 Stark. & Sel. 557.

371.

for lace, which is now being executed for him; Messrs. Payne & Co. to allow 57. per cent. on the amount of the said bills for the said guarantee." After the goods had been furnished, the plaintiffs drew a bill on Stubbs at eighteen months date, (the usual credit in the Indian trade,) which, after being accepted by Stubbs, the plaintiffs, for a period of 17 months and 10 days, retained without making any application to the defendants to indorse it; at the expiration of which time, Stubbs becoming insolvent, the plaintiffs, for the first time, required the defendant's indorsement to the bill, and tendered them the commission-money mentioned in the guarantee, but the defendants refused to accept the commission-money, or indorse the bill; and it was held, upon an action brought by the plaintiff's upon the guarantee, that they were concluded by their laches, and that the defendants were not liable; the legal construction of the instrument being, that the indorsement of the bill was to be the consideration for the commission, and that until the bill was indorsed no commission should be due; that as the instrument was signed by the defendants only, it was not binding upon the plaintiffs until accepted by them, and that the option given to the plaintiffs to make the agreement binding, ought to have been made in a reasonable time, at any rate before they knew of the insolvency of the acceptor.

It was held that each of the above writings was a mere overture to guarantee, and if it was meant to be accepted by the persons receiving it, notice of such intention should have been given to the defendant, or person making it.

66 Gentlemen,

"Doncaster, July 5, 1833.

"Mr. France informs me that you are about publishing an Arithmetic for him and another person, and I have no objection to being answerable as far as 501. For any reference, apply to Messrs. Brooke & Co., of this place.

"I am, Gentlemen, "Your most obedient servant, "Geo. Tinkler.

"Witness to Mr. Tinkler, "J. Brooke "(a).

It was held that the defendant only intended to be bound by the instrument, in case, upon inquiry, the plaintiffs should be satisfied with regard to his solvency; and that the plaintiffs ought to have communicated to the defendant that they were satisfied with his security, and not proving any notice of acceptance to the defendant, they were not entitled to recover (3).

(a) Mozley v. Tinkler, 1 Cr. M. & Ros. 692.

(3) At the trial it appeared that a person named France, being desirous of publishing a work on arithmetic, applied to the plaintiffs, who were printers and publishers, to publish the same. The plaintiffs did not reply directly to France, but addressed themselves to Brooke, a bookseller, through whose intervention the publication of the book by the plaintiffs was arranged, and the writing in question given. The memorandum was written by Brooke, and read over by him to the defendant, and the words at the foot of it, "Witness to Mr. Tinkler, J. Brooke," were also in his handwriting. The writing having been forwarded to the plaintiffs through Brooke, the work was proceeded with, and the bill made out to France. It was contended, on behalf of the plaintiffs, that they appeared to be satisfied, because Brooke

"Sir,

"That it may not be said that I have made no effort to save my brother from prison, I wish to know if you will give him a full discharge, if I will pay one moiety of his debt. I have specified what I will pay, and no more. If you will accept this, call upon me to-morrow morning"(b).

The letter was not dated, but the post-mark upon it bore date the 28th of March. In order to show that the plaintiff had acceded to this offer, he read a letter sent by him to the defendant on the 4th of April, in which, after remonstrating with the defendant for not paying one moiety according to his offer, he says, "I have taken an opinion on your letter, and am informed that I can recover upon it against you, therefore I shall not proceed against your brother." It was held by Lord Ellenborough, C. J., at Nisi Prius, that the defendant's letter was a mere proposition to pay a moiety, reserving a power to do any thing or nothing as he pleased the next day; and that at all events it would be necessary to show that the plaintiff had on the next day acceded to the proposal in writing.

II. Of guarantees considered; 1st. With reference to the amount for which the surety engages to be answerable; 2ndly. With reference to the subjectmatter in respect of which the surety makes himself liable; 3rdly. With reference to the persons to whom, or the persons in whose favour they are given; and, 4thly. With reference to their duration.

(b) Gaunt v. Hill, 1 Stark. 10.

was satisfied, of which the defendant was aware; but the Court considered that Brooke acted merely in the character of referee, and communicated his opinion to the plaintiffs in order that the latter might form their own judgment upon the question; and after they had done so, they ought to have communicated the result to the defendant.

1st. Of guarantees, with reference to the amount for which the surety engages to be answerable.

The sum, to which the surety has limited his responsibility, may either be expressly specified in the instrument itself, or be implied from the nature of it. If the instrument of suretyship is a bond with a penalty, the risk of the surety will, in general, be limited to the amount of the penalty (c), notwithstanding the obligation on the part of the surety is indefinite and unlimited (d); and where there are several sureties, and but one penalty, the sureties are together only liable to the amount of the penalty (e): upon this principle, if the sheriff take insufficient sureties in replevin, and the assignee of the replevin bond has incurred large expenses in suing the insufficient sureties, such assignee cannot recover against the sheriff as special damage, beyond the penalty of the replevin bond (f), unless he has given notice to the sheriff of his intention to sue the pledges; for had the sheriff received such notice, he might have prevented the expense of the action, by paying all he was liable to pay under the sureties' bond (g); but if the creditor holds any collateral security, as a mortgage, in addition to the bond, and the engagement on the part of the surety is to repay all debts which his principal shall contract, although the creditor, if he sues the surety upon the bond, is precluded from recovering any more than the pe

(c) Ex parte Rushforth, 10 Ves. 409; White v. Sealy, 1 Doug. 49; Wild v. Clarkson, 6 T. R. 303; Shepherd v. Beecher, 2 P. Wms. 288; and see Butcher v. Churchhill, 14 Ves. 567; Tew v. The Earl of Winterton, 3 Bro. C. C. 489; Knight v. M'Leon, 3 Bro. C. C. 496.

D

(d) Ex parte Rushforth, supra. (e) Hefford v. Alger, 1 Taunt.

218.

(f) Baker v. Garratt, 3 Bing. 56; Evans v. Brander, 2 H. Blk. 547; Jeffery v. Bastard, 4 Ad. & Ell. 823; Paul v. Goodluck, 2 Bing. N. C. 220.

(g) See Baker v. Garratt, supra.