the time speciñed; and if he did not, to take notice of his neglect, and pay the amount of the note himself. The judgment of the common pleas must be affirmed. 5. NORTON, ET AL. v. EASTMAN, May T. 1827, 4 Greenleaf, Me. act of the presuppos nature of Per Cur. Mellen, C. J. It seems to be well settled that when The very a guaranty is absolute in its terms, and definite as to its amount guarantee and extent, in such case no notice to the guarantor is necessary; es a knowl the very act of the party in giving the guaranty is inseparably edge of the connected with the knowledge of its nature and limits; in such the debt. a case notice is superfluous. As if A. holds a note against B. for $100, payable in one year, and C. guarantees the payment of the same when due. But when a written guaranty or letter of credit is given for a debt about to be created, and uncertain in -its amount, so that the party cannot know beforehand whether he is to be ultimately liable, nor to what extent, it is necessary, in order to charge him, that he should have notice in a reasonaable time, that the guaranty is accepted, and of the amount of debt created upon the faith of it. 6. BABCOCK V. BRYANT, Oct. T. 1831, 12 Pick. Mass. Rep. 133; S. P. CREMER V. HIGGINSON, 1 Mason, U. S. Rep. 324; NORTON V. EASTMAN, 4 Greenleaf, Me. 521; RAPALYE BAYLEY, 3 Conn. Rep. 438; DURAL, ET AL. V TRASK, 12 Mass. Rep. 154; GREEN V. DODGE, ET AL. Ohio Cond. Rep. 436. Assumpsit, on the following guarantee given by the defendant. When no "New Bedford, Nov. 20, 1826. This is to certify that I, the subscriber, do hereby agree to be responsible, and pay Messrs. Babcock & Allen, for whatever goods have been or may be delivered to Thomas C. Case. JOHN BRYANT, (Security for one year.) The plaintiffs supplied Case with goods to the amount of $115 21, within the year, and took his note payable on demand. Per Cur. Putnam, J. It does not appear that the defendant had any notice before the action was commenced of the amount of the goods, which were delivered on his guaranty. The general principle is well stated in Norton v. Eastman, that where the party cannot know beforehand, whether he is ultimately to be VOL V.. 67 tice is neces sary. Notice of the accept oight to be given, but continuing, liable or not, nor to what extent, it is necessary, in order to charge him, that he should have reasonable notice. It seems to us clear that the defendant would not be liable to pay until after notice of the amount of the goods which the plaintiff's had delivered, and a special request to pay for them. 7. DOUGLASS, ET AL. Y. REYNOLDS, Jan. T. 1833, 7 Peters, U. S. Rep. 113; RUSSEL V. CLARK's Ex'rs. 7 Cranch U.S. R. 69; DRUMMOND V. PRESTMAN, 12 Wheat. U. S. R. 515. Per Cur. Story, J. A party giving a letter of guarantee has ance of the a right to know whether it is accepted, and whether the person guarantee to whom it is addressed, means to give credit on the footing of it or not. It may be most material not only as to his own responsibility, but as to future rights and proceedings. notice of the It may regulate in a great measure his course of conduct, and vance i un his exercise of vigilance in regard to the party in whose service necessary. it is given, especially is it important in the case of a continuing guarantee, since it may guide his judgment in recalling or suspending it. Where the guarantee is continuing, in which the parties contemplate a series of transactions, and as soon as the defendants had received notice of the acceptance, they must necessarily have understood, that there would be successive advances, acceptances, and endorsements, which would be renewed and discharged, from time to time. separate ad And where notice is ne There is no principle on which to rest, that notice of each suecessive transaction, as it arose, should be given. All that could be required, would be that when all the transactions under the guarantee were closed, notice of the amount for which the guarantors were responsible, should, within a reasonable time afterwards, be communicated to them. 8. GRICE V. RICKs, June T. 1831, 3 Deverucax, S. Ca. Rep. 62. The defendant assigned a note, made by one Lemon, to the cessary it is plaintiff, in these words: "I assign the within to John Grice, until paid." part of the agreement. It was agreed between the parties, that the note should be put into the hands of a lawyer immediately, but the execution was delayed and Lemon made default in the payment having become insolvent. And the question was, whether notice was necessary. Per Cur. Ruffin, J. Was notice necessary? We think it was. It is a general rule of law founded in sound reason, that where the liability of one party is not absolute and direct, but is upon a collateral obligation, dependant upon and arising from certain things to be done by the other party, and lying peculiarly within his knowledge, he who is to take the benefit of the engagement, must give the other notice of what has been done, and that he is held liable. From the nature of things, notice is part of the agreement, and the debt does not arise before notice. 9. TUCKERMAN, ET AL. V. FRENCH, June T. 1830, 7 Greenl. Me. Assumpsit on the following guarantee: And notice must be giv en in a rea sonable Boston, Sept. 13, 1822. Messrs. W. & G. Tuckerman, Gents.-For the bill of goods which Charles B. Prescott bought of you on the 6th instant, I time. hold myself responsible to you for the payment, agreeably to the contract made with him, and I will hold myself responsible for any goods which you may sell him, provided the amount does not exceed at any time $500. The plaintiff, from Dec. 1822, to April, 1826, sold to the defendant various parcels of goods at sundry times, no one parcel however, exceeded $500. It appeared at the trial, that no notice was given of the acceptance of the guaranty to the defend ant. Per Cur. Mellen, C. J. In a guaranty of this description, there is always an implied condition that notice shall be given. by the vendor, who gives credit to a third person on the strength of a guaranty that such guaranty has been accepted, and such notice must be given in a reasonable time, so that the guarantor may know the fact of his liability. There is no distinction between a definite guaranty, and a continuing one as to notice. The amount for which the guarantor may engage to be responsi ble, may be the same in both cases, and there seems to be as much reason that he should have due notice of the acceptance of the guaranty in the one case as in the other. IV. OF THE CONSTRUCTION OF.. It is stated in Petersdorff's Abr. vol. 13, p. 769, that the same rules which gov ern the construction of all contracts will regulate the construction of guarantees. And the usages of trade will, in the absence of an express contract, be allowed to Construc tion of. A general letter of cre 1. DOUGLASS, ET AL. V. REYNOLDS, ET AL. Jan. T. 1833, 7 Peters' U. S. Rep. 113. Per Cur. Story, J. Every guarantee ought to receive a fair and reasonable construction according to the true import of its terms. It being an engagement for the debt of another, there is certainly no reason for giving it an expanded signification or liberal construction beyond the fair import of its terms. 2. LAWRASON V. MASON, Feb. T. 1806, 3 Cranch's U. S. Rep. p. 492. Assumpsit by Mason against Lawrason, upon the following dt is an as guarantee: sumpsit to any person who trusts the party "James M'Pherson, Dear Sir-We will become your security for on the faith one hundred and thirty barrels of corn payable in twelve months. (Signed) LAWRASON & SMCOT." of the letter. It was delivered to M'Pherson, who applied to the agent of the plaintiffs, and offered $3 per barrel, payable in 12 months. The plaintiff agreed that M'Pherson should have the corn on the security of the above guarantee, and it was delivered. It was contended that no action could be maintained against the defendant who was a stranger as regarded the plaintiff, and Jordan v. Jordan, Esp. N. P. 105, was cited. Per Cur. Marshall, C. J. This action is grounded upon a note in writing, which was certainly intended by the defendants. as a credit to M'Pherson. They are bound by every principle of moral rectitude, and good faith to fulfil those expectations which they thus raised, and which induced the plaintiff to part with his property. The evidence was clear that the credit was given on the faith of the letter. The letter in this case is an actual assumpsit to all the world, and any person who trusts in consequence of that promise has a right of action. explain the meaning and extent of a guarantee; 15 East. 272. Courts are inclined to favor suretics; and will never go beyond the strict letter of the contract. And the liability of a surety can only be incurred in the mode provided against; Bulkley V. Lord, 2 Stark. 406. No surety is bound beyond the extent of bis engagement: and therefore an old security will not be applicable to a new transaction, particu larly when it is restrained to a particular time; Liverpool Water Works v. Atkinson, 6 East. 507; St. Savior's Southwark v. Bostock, 2 N. R. 175; Bartlett v. Attorney General Parker, 277. The extent of the condition of an indemnity bond may be restrained by the recitals, though the words of the condition import a larg er liability than the recitals contemplate; Pearsall v. Summerville, 4 Taun. 593. The court look at the nature of the transaction between the parties, in giving a construction to the contract. 3. SMITH V. MORGAN, Dec. T. 1832, 3 Deveraux's N. Ca. Rep. p. 511. Assumpsit on the following guarantee: Words of mere de considered "I, James Morgan, assign the note and judgment against Henry seription is and John Wilkes, &c. to Henry Smith, and I, the said James no part of a Morgan, do guarantee unto the said Smith, that the aforesaid guarantee, note and judgment is good. It appeared that the note was a joint note, made by Henry & John Wilkes, upon which a judgment had been entered against Henry Wilkes only. And it was held by the court, Henderson, C. J., that the words "note and judgment," were words of mere description of the thing sold, and no part of the guarantee. And are not false in fact, for there could not be a note and judgment against both Henry and John Wilkes, for the same debt at the same time. Especially if the note, on which the judgment is obtained, precede the judgment, for in such case the note is merged in the judgment. The description imports just such a thing as there is, viz. a joint note taken against both, reduced to a -judgment against one. 4. DAVIS V. HIGGINS AND READ, May T. 1825, 3 New Hamp. leet of the the debtor charge the surety. Per Cur. Richardson, C. J. It is considered by the court as And a neg settled in this state, that a mere delay to call upon the principal principle to does not, in any case, discharge a surety. And it has been held prosecute that if a creditor, after being requested by a surety to collect the does not dis debt of the principal, becomes insolvent, the surety is discharged; but we are of opinion that a surety is not discharged by a mere delay of the creditor to call upon the principal, when requested to do so by the surety. It seems to us unnecessary to establish such a principle, because the surety may, in any case, if he feel any anxiety, pay the debt, and call upon the principal by a suit in his own name. 5. KING V. BALDWIN, March T. 1819, 17 Johns. N. Y. Rep. 384; PAIN V. PACKARD, 13 Johns. Rep. 174. Per Cur. Spencer, J. The rule is this, that where the cred Where a creditor |