Skofield v. Haley

The opinion of the Court was drawn up by Whitman C. J. — Cases of guaranty are scarcely to be assimilated to those of indorsers, under the mercantile law of bills of exchange and promissory notes, in any of the rules, as to demand and notice. Clark & al. v. Burditt, 2 Hall, 197; 1 Story’s R. 22; Lee v. Dick, 10 Peters, 482. A guarantor [167] may be, and generally is, liable without either ; and is, in many respects, in the condition of a surety, obligating himself jointly and severally with the principal. If the holder of the obligation lays by, after the debt becomes due, for a great length of time, without making efforts to collect his demand, and, in the mean time, the debtor becomes insolvent, according to some authorities, it would seem, that the guarantor, would in a Court of equity, if not of law, be held to be absolved from his liability. But if the debtor were insolvent, when the debt became due, as was the case here, neither demand on him, or notice to the guarantor would be necessary to charge him. Reynolds & al. v. Douglas & al. 12 Peters, 497. As to the offer of a bond, &c. in lieu of the guaranty, in this case it was but a proposition on one side, not acceded to on the other, and could not affect the rights of the plaintiff under the guaranty. As to the third ground relied upon in the defence, against a portion of the plaintiff’s claim, we are of opinion that it cannot prevail. The order was sold to the plaintiffs by the defendant bona fide and absolutely in toto. The property in it therefore became wholly the plaintiff’s. It was the intention, for aught that appears, that he should avail himself of the whole amount due of the drawees; and if he could not, that the defendant should be responsible for it. And this view of the point, if authority were necessary to sustain it, is fully borne out by the case of Oakley v. Boorman, 21 Wend. 588. Exceptions overruled and judgment on the verdict.