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so as to charge the principal, may be made out by parol evidence (b). And although there may not have been a previous authority, a subsequent sanction or ratification of the act of the agent by the principal, will be sufficient to charge the principal (c), of which parol evidence may also be given (d). But in order to fix the principal by the act of the agent, the authority must be strictly pursued (e) (3); à fortiori, if an agent, at the time he signed a guarantee, should declare that he had not authority on the part of his principal to sign the guarantee in question, the principal would not be bound (f).
Nor will the principal be bound by the act of the agent, where the agent guarantees on behalf of the
(b) Wilson v. Hart, 7 Taunt. 295.
(c) Maclean v. Dunn, 4 Bing. 722; S. C. 1 Moo. & P. 76. (d) Maclean v. Dunn, supra.
(e) Co. Litt. 112 b. 181 b.; Coni. Dig. tit. Attorney, c. 11; 3 Vin. Abr. 419, pl. 7.
(f) Howard v. Braithwaite, 1 Ves. & B. 202.
(7) The law upon this point seems to be carried to an extreme length. It is laid down in Co. Litt. 181 b. " If a charter of feoffment be made, and a letter of attorney to four or three joyntly or severally, to deliver seisin, two of them cannot make liverie, because it is neither by them four or three joyntly, nor any of them severally." And in 3 Vin. Abr. 419, pl. 7, "If a letter of attorney to make a livery of seisin conjunctim et divisim be made to three, and two of them make livery, the third being absent, this is not good, for this is not conjunctim nor divisim." In Guthrie v. Armstrong, (5 B. & Ald. 628,) a power of attorney had been signed by the defendant constituting fifteen persons therein-named, his true and lawful attornies jointly and separately for him, and in his name to sign and underwrite all such policies of insurance, as they, his said attornies, or any of them, should jointly and separately think proper. The policy was executed for the defendant by four of the persons named in the power of attorney, and the question was, whether the execution of the power by such four persons was sufficient? Abbott, C. J., in delivering the judgment of the Court, admitted the law of the present day to be as stated in Co. Litt., and in Vin., but held, that inasmuch as the power was given to the fifteen persons jointly and severally, or any of them, the true construction was, that the power was given to all, or any of them, to sign such policies as all, or any of them, should think proper, and that the latter words controlled the meaning of the former, and rendered the execution of the power good.
principal by an instrument under seal, if the agent has not authority to do so by an instrument under seal (g); for it is a rule of law, that the delegation of authority to do an act by deed cannot be executed, unless there is an authority of as high a nature. And although the principal may have authorized an agent to guarantee on his behalf, it is in the power of the principal to revoke that authority at any time before a collateral engagement is entered into by the agent according to the Statute, notwithstanding the agent has previously promised verbally to give a guarantee, and the person to whom it was to have been given has acted upon the faith of the promise so made to him by the agent (h).
(g) Harrison v. Jackson, 7 T. R. 207; and see Elliot v. Davis, 2 Bos. & P. 338.
(h) See Farmer v. Robinson, 2 Camp. 339 n.
OF THE CREDITOR, OR PARTY TO WHOM THE INSTRUMENT OF SURETYSHIP IS GIVEN.
OF THE RIGHTS AND REMEDIES OF THE CREDITOR, WITH RELATION TO THE SURETY,
I. Where the surety is solvent. surety is bankrupt, or insolvent.
I. Where the surety is solvent.
II. Where the
Upon the default of the principal, the creditor has a remedy against the surety by action at law. If the contract of the principal and surety is several (a), or joint and several (b), and the duty or obligation to be performed or done by the principal, and the time limited for its performance, are certain, the creditor may proceed immediately against the surety, without first proceeding against, or (as it would seem) making application to, the principal; and neither notice of non-performance by the principal, nor demand on the surety, seems necessary to be averred or proved (c); for a surety is bound to inquire and inform himself, whether or not the principal has performed the engagement which the
(a) Lee v. Nixon, 1 Ad. & Ell. 201.
(b) Weston v. Barton, 4 Taunt. 673.
(c) Atkinson v. Carter, 2 Chit.
403; Nares v. Rowles, 14 East, 511; and see Philips v. Sackford, Cro. Eliz. 455; and the observations of Wood, B., in Lilley v. Hewitt, 11 Price, 494.
surety undertook he should perform. And if the contract is joint, as well as several, the creditor may sue the parties jointly (d). But if he elects to sue them jointly, he cannot sue them severally (e), for the pendency of one suit may be pleaded in abatement of the other.
So if there are several sureties, he may go against any one of them (ƒ); nor after having released or compounded with one or more of the co-sureties, will the creditor be precluded from proceeding against the others; (except in the cases after-mentioned, where by operation of law the release of one of two or more joint, or joint and several contractors, operate at law as a release to all;) but the creditor cannot recover from the surety or sureties proceeded against, more than the proportion which he or they would have paid, supposing the surety or sureties released or compounded with, had contributed their respective shares (g).
But if there is any condition precedent to any liability to be incurred by the surety, that condition must be strictly performed; thus, if the surety engages that his principal shall, from time to time, when required so to do by the creditor, duly account for all monies received by him, and that he shall pay any balance that may be due from him, the creditor cannot compel the surety to pay any thing without proceeding to take the account; for a surety is bound only according to the terms of his contract, and has a right as against the party to whom the instrument of suretyship is given, to have
(d) See the observations of Buller, J., in Streatfield v. Halliday, 3 T. R. 779.
(e) See the observation of Lord Talbot, C., in ex parte Rowlandson, 3 P. Wms. 405.
(f) Deering v. the Earl of Win
chelsea, 2 Bos. & P. 270; S. C. 1 Cox, 318; Morgan v. Seymour, 1 Ch. Rep. 120; Greerside v. Benson, 3 Atk. 253.
(g) Ex parte Gifford, 6 Ves.
the terms of that contract strictly performed (h). So if the surety engages to pay the debt of his principal at a subsequent day, if not then paid by the principal, the same being reasonably requested of him, a request by the creditor is necessary, in order to make the surety liable, as there is no duty before request (i). So if negotiations are entered into between the creditor and the principal, with the sanction of the surety, for the payment of the debt of the principal by instalments, or otherwise, as may be agreed upon between the creditor and the principal; though the surety continues liable if the negotiations fail to take effect, there is an implied condition on the part of the creditor, that the surety shall not be proceeded against until he has received notice that those negotiations are at an end, and that the debt remains unsatisfied (j). So where S. entered into a bond conditioned for the payment to C. of such a sum of money as C. should recover in an action against P. in pursuance of the statute of the 4th of Geo. 3, chap. 33, and C. obtained judgment in that action, and put the bond in suit against S.: it was held, that S. might plead in bar to the action, that a writ of error was depending on the judgment against C.; for while the writ of error was depending, the money was not actually recovered (k). So where before the execution of a composition-deed, it was agreed, in the presence of the surety for the payment of the composition, that it should be void unless all the creditors executed it, and the surety
(h) See Antrobus v. Davidson, 3 Meriv. 569; Elworthy v. Maunder, 2 Moo. & P.482; S. C. 5 Bing. 295; Pearce v. Morrice, 2 Ad. & Ell. 84; ex parte Fairlie, Mont. 17; Holl v. Hadley, 2 Ad. & Ell. 758; Musket v. Rogers, 5 Bing. N. C. 728.
(i) Alcock v. Blowfield, Noy, 95.
See Clift v. Gye, 9 B. & Cress. 422; Charlton v. Morris, 6 Bing. 427; Surman v. Bruce, 10 Bing. 434.
(k) Curling v. Innes, 2 H. Blk. 372.