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In both the last two cases the general rule that the consideration must appear on the face of the writing was admitted. It would seem, however, that at the present day such memoranda would be deemed insufficient, upon the ground that they only disclose a past consideration, without showing that the bills were taken at the defendant's request; such consideration not being adequate to the support of the promises (o).

It is also sufficient if the terms or consideration can be collected from the written correspondence or papers between the parties, though it cannot be collected merely from the defendant's memorandum; provided such memorandum expressly refer to the former correspondence, or to an instrument which contains the whole contract, and state that the terms of the contract are comprised in the writing thus referred to (p).

And in Emmott v. Kearns (q), where it appeared that the plaintiff, having pressed Walsh for payment of a debt, defendant, Walsh's attorney, sent to plaintiff a bill accepted by Walsh at two months, inclosed in a letter, in which defendant said, "Walsh being disappointed in receiving remittances, and you expressing yourself inconvenienced for money, I send you his acceptance at two months." Plaintiff refused to take the bill unless defendant put his name to it; defendant wrote on the back of the letter, "I will see the bill paid for Walsh." It was held that defendant was responsible, and that the consideration for the guarantee sufficiently appeared.

A bill of exchange or promissory note for the debt of a third person is binding on the party who signs it, as acceptor or indorser or maker, in the usual and proper form of such an instrument, although no consideration be expressed on the face of the instrument (r). Such bill or note is valid per se, under such circumstances, by virtue of the custom of merchants.

(o) See per Best, C. J., Morley v. Boothby, 3 Bing. 114; and ante, 61, 62. Aliter if the memorandum shewed the previous request, id.; Payne v. Wilson, 7 B. & C. 423; 1 M. & R. 708, S. C.

(p) See ante, 70, 397; Redhead v. Cator, 1 Stark. R. 14, 19; 4 Camp. 188, S. C., not S. P.; Stead v. Liddard, 8 Moore, 2; 1 Bing. 196, S. C.; Sandilands v. Marsh, 2 B. & Ald. 680; Coe v. Duffield, 7 Moore, 252; Jack

son v. Lowe and Lynam, id. 219;
Hemming v. Perry, 2 M. & P. 375;
Hare v. Rickards, 5 M. & P. 35; 7
Bing. 254, S. C.

(4) Emmott v. Kearns, 5 Bing. N. C. 559; 7 Scott, 687; 7 Dowl. P. C. 630.

(r) Popplewell v. Wilson, Stra. 264; Coombs v. Ingram, 4 D. & R. 211; Price v. Edmunds, 10 B. & C. 578; Ridout v. Bristow, 1 C. & J. 231; Chit. jun. B. 9. Aliter if the bill or note be not framed so as to be within

We have in a former part of the work considered the rule which excludes parol evidence, offered in extension or explanation of a written agreement. But we have seen that even in the case of a memorandum given under the Statute of Frauds, parol testimony is sometimes admissible, to show who was the real creditor, &c. (s).

3rdly. To what Extent the Surety is liable.

In a valuable work on the Law of Principal and Surety (t), the deductions from the doctrine, that the liability of the surety cannot be more than that of the principal, upon the particular transaction or contract, in regard to which the relation of surety was created, will be found to be perspicuously stated.

If a person be surety for the fidelity of another in an office of limited duration, or the appointment to which is only for a limited period, he is not obliged beyond that period (u).

Where also a bond was taken under an act of parliament, conditioned for the due collection of certain rates and duties at all times thereafter, and it did not appear on the record that the collector's appointment was limited, or his office annual, but the act made it annual, the court held that the surety was obliged for a year only (x). On the other hand, although the surety is not obliged to a greater extent than his principal, he is understood to be obliged to the same extent, unless he has expressly limited his obligation. Therefore, where a bond was taken under an act of parliament, with a condition for A. B.'s accounting for all monies received by him in virtue of the act, and the

the custom of merchants, &c.; see Jackson v. Hudson, 2 Camp. 447; Britten v. Webb, 2 B. & C. 483; 3 D. & R. 650, S. C. It would be immaterial whether or not it appeared on the face of the bill or note that the debt was due from a third person. The case of Garnet v. Clarke, 11 Mod. 226; Chitty, jun. on Bills, S. C., in which Holt, C. J., is reported to have said that a note to pay money 66 on account of J. S." is not within the statute 3 & 4 Anne, c. 9, cannot be considered law.

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The Wardens of St. Saviour's Southwark v. Bostock, 2 New R. 175; Leadley v. Evans, 2 Bing. 32; 9 Moore, 102, S. C.

(x) Peppin v. Cooper, 2 B. & Ald. 431. But in M'Gahey v. Alston, 1 M. & W. 386; 1 Tyr. & G. 705, S. C., where the defendant was a subordinate officer appointed under the St. Pancras Vestry Act, 59 Geo. 3, c. 39, s. 19, by the select vestry, not as an annual officer, but holding his office during the pleasure of the vestry, it was held that a bond given by him to the directors of the poor, who are annual officers, under s. 57, continued in force after the directors to whom it was given had gone out of office.

act did not make the office annual, the court held that the obligation of the sureties was not confined to a year, although the defendant pleaded that the office was an annual one (y).

So where a bond, given to secure the faithful performance of an office of a collector of parochial rates, who was by act of parliament to be appointed by trustees for a year, and then to be capable of re-election, was conditioned, that from time to time and at all times thereafter, during such time as he should continue in his said office, whether by virtue of his said appointment or of any re-appointment thereto, or of any such retainer or employment by or under the authority of the said trustees or their successors, to be elected in the manner directed by the said act, he should use his best endeavours to collect the monies received by means of the rates in the then present or in any subsequent year, &c. &c.; it was held that the obligation of the bond was not confined to the year for which he was originally appointed, but extended also to all subsequent years in which he was continuously re-appointed (z).

If the surety's engagement relate to a particular office, it extends only to such things as were included in the office when the engagement was entered into. Thus, a person who became surety for a collector of the customs' revenue, upon his appointment in 1691, was held not liable in respect of the customs on coals, which were first imposed in 1698 (a).

If a person engage as surety for a particular individual, the engagement is understood to extend to the acts of that individual alone, and it will not continue if he take a partner (b).

In like manner, if a person become bound as surety for more persons than one, the engagement is understood to be on behalf of those individuals collectively and jointly, and in case of the death of any of them, it will not continue on behalf of the survivors; unless indeed it appears, and that very clearly, that it was intended to continue on behalf of the survivors (c).

If a person engage as surety to a particular individual the engagement is understood to be only to that individual, and it

(y) Curling v. Chalklen, 3 M. & Selw. 502; Saunders v. Taylor, 9 B. & C. 35.

(z) Augero v. Keen, 1 M. & W. 390; 1 Tyr. & G. 709, S. C.

(a) Bartlett v. Attorney General, Parker, 277; Bowdage v. Attorney General, id. note (a); and see Legh - Taylor, 7 B. & C. 491.

(b) Bellairs v. Ebsworth, 3 Camp. N. P. C. 52: unless there be words evincing an intention to the contrary; see Barclay v. Lucas, post, 525, n. (d).

(c) Simson v. Cooke, 8 Moore, 588; 1 Bing. 452, S. C.; Kipling v. Turner, 5 B. & Ald. 261; and see University of Cambridge v. Baldwin, 5 M. & W.

580.

66 to

ceases if he take a partner who is interested (d). A surety A." for the fidelity of a clerk, is not liable in respect of a breach of trust, upon an employment of the clerk by A.'s executors (e).

person engage as surety to several individuals, the engagement is understood to be to all of them collectively and jointly, and if any of them die it will not be available in respect to transactions afterwards by the survivors (f). So if a guarantee be given to a firm the surety is discharged from further liability on the death or retirement of one of the partners (g).

But in Place v. Delegal (h), where E., as attorney for the plaintiffs, the executors of W., sold an estate, to a share of the proceeds of which W. was entitled as legatee of M.; and defendant claiming W.'s share of such proceeds under an agree ment with W., the plaintiffs paid the amount to defendant, on receiving from him a guaranty addressed to E., and also to the plaintiffs as executors of M., to indemnify them and each of them against any action by W.; it was held that the plaintiffs might sue on this guaranty without joining E.

An engagement entered into with persons as the representatives of a society, which at the time was a voluntary one, will not continue after the incorporation of the society (i).

Of a Continuing Guarantee.-It has frequently become a question of some nicety, whether a guarantee, to the extent of a named sum, of the price of goods to be furnished to another, is to be considered a continuing or standing engagement, until the credit be recalled by notice (k); or is to be viewed as confined

(d) Wright v. Russell, 3 Wils. 530; 2 Bla. R. 934, S. C.; Barclay v. Lucas, 3 Dougl. S21; 1 T. R. 291, note, S. C. Barclay v. Lucas has been doubted; see 1 New R. 42; 4 Taunt. 681. But it gives a true principle, viz., that if the words show an intention that the security should continue, notwithstanding the accession of a new partner, the surety shall be liable. If a note be given to a firm " or order" as a security, it is a security for advances made after a change in the firm; Pease v. Hirst, 10 B. & C. 122; see Roe d. Durant v. Moore, 6 Bing. 656.

(e) Barker v. Parker, 1 T. R. 287. (f) Weston v. Barton, 4 Taunt. 673; Strange v. Lee, 3 East R. 484;

Myers v. Edge, 7 T. R. 354. Aliter in the case of a bond to the trustees of a company; Metcalf v. Bruin, 12 East R. 399; see suprà, note (d).

(g) Dry v. Davy, 2 P. & Dav. 249. (h) Place v. Delegal, 4 Bing. N. C.

426.

(i) Dance v. Girdler, 1 New R. 34.

(k) If the guarantee be under seal, and be a continuing security for goods, &c., to be from time to time supplied, or monies to be received, &c., semble it cannot be recalled by notice not to trust, &c., unless there be an express provision to that effect in the instrument itself; Hassell v. Long, 2 M. & Selw. 370; Calvert v. Gordon, 3 M. & R. 124; 2 Simon, 253; Hough v. Warr, 1 C. & P. 150.

to one transaction, and is consequently satisfied by a supply of goods to the specified amount, and a payment made by the vendee for the same.

In Mason v. Pritchard (1), the court held that an engagement "for any goods the plaintiff hath, or may supply W. P. with to the amount of 1007." is a standing and continuing guarantee, and is therefore not discharged by a supply of goods to the amount stated, and a payment for the same by W. P.; but applies to a subsequent sale to him. The same construction was put upon the following memoranda :

"To A. B., I have been applied to by C. D., to be bound to you for any debts he may contract, not to exceed 1007. in his business as a jeweller. I consider myself bound for any debt he may contract, &c. (m)."

"I hereby undertake to be answerable to the extent of 1007. for any tallow supplied by A. to B. (n).”

"I hereby agree to guarantee the payment of goods to be delivered in umbrellas to J. S. according to the custom of their trade with you, in 1001. (o)."

"If you will credit A. B., I engage that his payments shall be regularly made from this day, &c. (p)."

"Whereas W. C. is indebted to you, and may have occasion to make further purchases from you, as an inducement to you to continue your dealings with him, I undertake to guarantee you in the sum of 100%., payable to you on the default of the said W. C. for two months (q)."

And a bond conditioned for the payment of all such sums, not exceeding 2007., as the plaintiff's should advance for or on account of bills from time to time drawn by B. on plaintiffs, within three calendar months after receiving notice to pay such sums, has been held to be a continuing security (r).

But in Melville v. Hayden (s), it was decided that a guarantee "of the payment of A. B. to the extent of 60%., at quarterly

(1) 12 East, 227; 2 Camp. 436, S. C.

(m) Merle v. Wells, 2 Camp. 413. (n) Baston v. Bennett, 3 Camp. 220. (0) Hargreave v. Smee, 3 M. & P. 573; 6 Bing. 244, S. C. It seems that the courts will construe a warrant of attorney, with a defeasance, merely "to secure payment of 100l.," to be a continuing security; Woolley v. Jen

nings, 5 B. & C. 165; 7 D. & R. 124, S. C.

(p) Simpson v. Manley, 2 C. & J. 12, 13, note.

(9) Allan v. Kenning, 2 M. & Sc. 768; 9 Bing. 618, S. C.

(r) Batson v. Spearman, 9 Ad. & E.

298.

(s) 3 B. & Ald. 593; sed vide Hargreave v. Smee, supra, note (o).

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