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guarantee the payment to you of the moneys that at any time may become due, not exceeding 5000l.:" held, that the guarantee ceased on the death of one of the partners, as a contrary intention did not appear, by necessary implication, or from the nature of the firm. S. C.

A guarantee by writing, under hand only, for twelve months for the payment of all bills the plaintiff might discount for D., to the extent of 6007., was held revocable by a notice given during the twelve months, although some discount had been made and repaid before notice. Offord v. Davies, 12 C. B., N. S. 748; 31 L. J., C. P. 319. As to withdrawal from a guarantee, see further Burgess v. Eve, L. R., 13 Eq. 450; Phillips v. Forall, L. R., 7 Q. B. 666. But a guarantee, the consideration for which is given once for all, cannot be determined by the guarantor, and does not cease on his death. Lloyd's v. Harper, 16 Ch. D. 290, C. A. The death alone of the guarantor does not revoke an engagement to guarantee the balance of a running account until notice. Bradbury v. Morgan, 1 H. & C. 249; 31 L. J., Ex. 462. It is, however, in the absence of express provision, revoked as to subsequent advances by notice of the guarantor's death; Coulthart v. Clementson, 5 Q. B. D. 42; but not as against the survivor of two joint and several co-sureties. Beckett v. Addyman, 9 Q. B. D. 783, C. A. See also Harriss v. Fawcett, L. R., 8 Ch. 866.

Default of principal debtor.] The plaintiff must prove the default of the principal debtor, against which he has been guaranteed by the surety. Admissions made by the principal debtor, or a judgment or award obtained against him by the plaintiff, are not evidence against the surety. Ex parte Young, 17 Ch. D. 668, C. A.

Damages.] A guarantee for payment by the acceptor of a bill of exchange includes interest. Ackerman v. Ehrensperger, 16 M. & W. 99. "We guarantee that 4007. shall be duly paid, in the proportion of 2007. each," signed by two persons, does not make them jointly liable to 4007., but is a separate contract as to 2007. by each. Fell v. Goslin, 7 Exch. 185; 21 L. J., Ex. 145. An agreement to be answerable for all the costs of, and incidental to, an action to be brought by the plaintiff, entitles him to recover the costs of his own solicitor, though not actually paid at the time of suing on the guarantee. Spark v. Heslop, 1 E. & E. 563; 28 L. J., Q. B. 197. The defendant promised to pay the plaintiffs "300l. to secure an advance now or hereafter on a banking account with A." They advanced more than 300l. to A., who paid his creditors 168. in the £ only; it was held that the defendant's promise was only to repay an advance of 3007., and that he was therefore entitled to the benefit of the dividend thereon. Gee v. Pack, 33 L. J., Q. B. 49; following Bardwell v. Lydall, 7 Bing. 489; Thornton v. M'Kewan, 1 H. & M. 525; 32 L. J., Ch. 69; Hobson v. Bass, L. R., 6 Ch. 792; Gray v. Seekham, L. R., 7 Ch. 680. The surety may, however, waive his right to the share of the composition by the terms of the contract of suretyship; Ex pte. National Provincial Bank of England, 17 Ch. D. 98, C. A.; Ellis v. Emmanuel, 1 Ex. D. 157, C. A.; as where the guarantee is given for a limited amount, and is less than the debt, the amount of which is then ascertained. S. C. Where a guarantee given to A. appears to have been so given to him as trustee for B., A. can recover thereon the same damages B. could have recovered if it had been given to B. Lloyd's v. Harper, ante, p. 464.

Defence.

The want of a written memorandum must be pleaded specially. Rules, 1883, O. xix. r. 20, ante, p. 302.

The mere omission on the part of the principal creditor to enforce his rights against the principal debtor does not discharge the surety. Mansfield Union v. Wright, 9 Q. B. D. 683, C. A.

Concealment.] The surety may sometimes rely on the concealment of material particulars by the principal at the time the contract was made, as a fraud. Lee v. Jones, 14 C. B., N. S. 386; 17 C. B., N. S. 482; 34 L. J., C. P. 131, Ex. Ch. So, in the case of concealment during the pendency of a continuing guarantee. Phillips v. Foxall, L. R., 7 Q. B. 666; Sanderson v. Aston, L. R., 8 Ex. 73. See Durham, Mayor of v. Fowler, post, p. 466. The duty of the principal must always ultimately be measured by the jury, but the judge will have to point out what their duty is in this respect; the language in which he ought to do this has not, however, yet been very precisely settled. A direction that a concealment must be "wilful and intentional, with a view to the advantage they (the principals) were thereby to receive," is wrong. Railton v. Mathews, 10 Cl. & F. 934. See further Davies v. L. & Provincial Marine Insur. Co., 8 Ch. D. 469. On the other hand, the creditor is not bound to communicate every circumstance calculated to influence the discretion of the surety in entering into the required obligation; Owen v. Homan, 4 H. L. C. 997; for a surety is only entitled to disclosure of any arrangement that may exist between the debtor and creditor that may make his position different from what he would reasonably expect; and hence, if a person undertake to be responsible for a cash credit given to one of the banker's customers, the banker is not bound voluntarily to communicate that the intention is to apply the credit to an old debt due from the customer to the banker. Hamilton v. Watson, 12 Cl. & F. 109, per Ld. Campbell. Accord. N. British Insur. Co. v. Lloyd, 10 Exch. 523; 24 L. J., Ex. 14. So where the guarantee was a continuing one, given to a bank to secure advances "not exceeding in the whole 1,000l.," it was held no defence to an action to recover 1,000l., on the guarantee that the bank had made advances together exceeding 1,000l. Laurie v. Scholefield, L. R., 4 C. P. 622.

Alteration of position of parties.-Giving time, &c.] Any alteration by a binding agreement in the relative position of the creditor and principal debtor, whereby the latter is released or the remedy against him is suspended, or the risk of the surety varied, without the surety's assent will be a discharge of the guarantee. Polak v. Everett, 1 Q. B. D. 669, C. A.; Lewis v. Jones, 4 B. & C. 506, and 515, n.; Cragoe v. Jones, L. R., 8 Ex. 81; and see cases cited ante, pp. 394, 395. So any material alteration in the terms of an agreement between the creditor and principal debtor will discharge the surety, provided the agreement forms the basis of the contract of suretyship; N. W. Ry. Co. v. Whinray, 10 Ex. 77; 23 L. J., Ex. 261; but not otherwise; Sanderson v. Aston, L. R., 8 Ex. 73. See further Holme v. Brunskill, 3 Q. B. D. 495, C. A. And in order to discharge the surety by such material alteration, e.g., by giving time to the principal debtor, A., there must be a binding enforceable contract with A. Clarke v. Bailey, 41 Ch. D. 422. Such contract with a third party has no effect. S. C.; Lyon v. Holt, Fraser v. Jordan, ante, p. 394. Mere laches of the obligee, or a mere passive acquiescence by the obligee, in acts which are contrary to the conditions of the bond, is not

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sufficient of itself to relieve the sureties." Durham, Mayor of v. Fowler, 22 Q. B. D. 394, 417.

The contract of suretyship is sometimes severable, so that it is only discharged as to part by an alteration in the position of the creditor and the principal debtor. Harrison v. Seymour, L. R., 1 C. P. 518; Skillett v. Fletcher, L. R., 1 C. P. 217; L. R., 2 C. P. 469, Ex. Ch.; Croydon Commercial Gas Co. v. Dickinson, 2 C. P. D. 46, C. A.

If the rights against the surety be expressly reserved, the latter is not discharged; Kearsley v. Cole, 16 M. & W. 128; Price v. Barker, 4 E. & B. 779; 24 L. J., Q. B. 130; Bateson v. Gosling, L. R., 7 C. P. 9; and if the contract of suretyship contain a special clause allowing the creditor to compound with the principal debtor, the surety is not discharged by such compounding. Cowper v. Smith, 4 M. & W. 519; Union Bank of Manchester v. Beech, 3 H. & C. 672; 34 L. J., Ex. 133. The reservation of rights against the surety prevents the latter from being discharged, because the principal debtor cannot then complain that the surety, when he has been obliged to pay the debt, immediately claims to be indemnified by the principal debtor, and that this claim makes the release illusory. Kearsley v. Cole, supra; Nevill's case, L. R., 6 Ch. 43, 47; Muir v. Crawford, L. R., 2 H. L., Sc. 456, 458.

Where the liabilities of the principal debtor have been changed by statute during the pendency of the guarantee, the surety is discharged; Pybus v. Gibb, 6 E. & B. 902; 26 L. J., Q. B. 41; unless the terms of the guarantee show that it is intended the suretyship should continue. Oswald v. Berwick, Mayor of, 5 H. L. C. 856; 25 L. J., Q. B. 383. See Skillett v. Fletcher, supra.

As a surety on payment of the debt is entitled to all the securities of the creditor, whether he is aware of their existence or not, even though they were given after the contract of suretyship, if the creditor who has had, or ought to have had, them in his full possession or power, lose them or permit them to get into the possession of the debtor, or do not make them effectual by giving proper notice, the surety to the extent of such security will be discharged; a surety, moreover, will be released if the creditor, by reason of what he has done, cannot, on payment by the surety, give him the securities in exactly the same condition as that in which they formerly stood in his hands. See notes to Rees v. Barrington, 2 White & Tudor, L. C.; Wulff v. Jay, L. R., 7 Q. B. 756. Thus, where the plaintiff held a bill of sale of the debtor's furniture as security for a debt to him for which the defendant was surety, but neglected to register it, and although he had notice of the debtor's insolvency did not seize the furniture under it; and the goods in consequence passed to the debtor's trustee in bankruptcy; it was held that the defendant was discharged to the extent of the value of the goods. S. C., Id. See also Watts v. Shuttleworth, 5 H. & N. 235; 29 L. J., Ex. 229; and Mutual Loan Assoc. v. Sudlow, 5 C. B., N. S. 449; 28 L. J., C. P. 108; Lawrence v. Walmesley, 12 C. B., N. S. 799; 31 L. J., C. P. 143. These rules as to the right of the surety apply as between the acceptor and indorser of a bill where securities had been deposited to secure its payment, and it has been paid at maturity by the indorser. Duncan v. N. & S. Wales Bank, 6 Ap. Ca. 1, D. P. În Polak v. Everett, 1 Q. B. D. 669, C. A., the distinction is explained between intentional acts which discharge the claim against the surety altogether, and negligent acts which discharge it only to the extent to which the surety has been thereby prejudiced. See also Carter v. White, 25 Ch. D. 666, C. A.

In the case of two sureties, A. and B., contracting severally, the creditor does not by releasing A. thereby break his contract and so

release B., unless B. can show that he had a right to contribution which has been taken away or injuriously affected. Ward v. National Bank of New Zealand, 8 Ap. Ca. 755, P. C.

A creditor who holds security for his debt does not discharge a surety for the debt by surrendering his security to the trustee in the bankruptcy of the principal debtor, in order to entitle himself to prove for the whole debt. Rainbow v. Juggins, 5 Q. B. D. 138, 422, C. A. The adjudication in bankruptcy under the Bankruptcy Act, 1883, s. 18 (11), of a debtor who has compounded with his creditors, discharges the liability of a surety who has secured the composition and avoids the security. Walton v. Cook, 40 Ch. D. 325.

As to termination and revocation of guarantee, vide ante, pp. 463, 464.

ACTION ON WARRANTY.

A warranty is either express or implied. "Warranties implied by lav are for the most part founded on the presumed intention of the parties, and ought certainly to be founded on reason, and with a just regard to the interests of the party who is supposed to give the warranty, as well as of the party to whom it is supposed to be given." Readhead v. Midland Ry. Co., L. R., 4 Q. B. 392, Ex. Ch., per cur.; accord. Francis v. Cockrell, L. R., 5 Q. B. 184, 193, per cur. See The Moorcock, 13 P. D. 64, 68, per Bowen, L. J.

Where plans and a specification of a certain work to be done for A. are prepared as the basis of tenders, A. does not warrant that the work can be done under such plans and specification. Thorn v. Mayor of London, 1 Ap. Ca. 126, D. P. So, where the architect takes out the quantities, A. does not warrant their correctness. Scrivener v. Pask, L. R., 1 C. P. 715, Ex. Ch.

The most frequent cases in which an action is brought on a warranty, is on the occasion of the sale of goods, including horses, and of a representation of authority to enter into a contract on behalf of another person.

Action on Warranty on Sale of Chattels.

Warranty of title.] If a man sells goods affirming them to be his own, that amounts to a warranty of title. Cross v. Garnet, 3 Mod. 261; 1 Show. 68; Medina v. Stoughton, 1 Salk. 210; 1 Ld. Raym. 593. But it would seem that there is in general no implied warranty of title any more than of quality, on the bare sale of a personal chattel. Per cur., Morley v. Attenborough, 3 Exch. 500; Bagueley v. Hawley, infra. Where a pawnbroker sold an unredeemed pledge at an auction of such pledges, which was bought by the plaintiff, and was afterwards claimed by the right owner, it was held that there was no warranty of title. Morley v. Attenborough, supra. So, there is no warranty of title on a sale under an execution nor on a sale by the purchaser on that occasion to another purchaser privy to the first sale. Chapman v. Speller, 14 Q. B. 621. So, in Baqueley v. Hawley, L. R., 2 C. P. 625, the defendant had bought at a public auction a boiler set in brickwork which had been seized as a distress for poor rate; the plaintiffs bought it of the defendant, with notice of the circumstances under which it had been originally sold, and were to remove

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the boiler at their own expense, but were prevented so doing by the mortgagees of the premises: it was held that the seller had not warranted his title to the boiler, or that the plaintiffs would be permitted to remove it; Willes, J., dissented, observing that the plaintiffs had purchased a boiler and not a lawsuit. In order to make the seller of personal property liable for a bad title there must be shown fraud or express warranty, or an equivalent to it by declaration, or conduct, or usage of trade. When articles are bought in a shop professedly kept for the sale of goods, there can be no doubt that the shopkeeper must be considered as warranting that a purchaser will have a good title to keep the goods purchased. In such case the vendor sells as his own, and that is what is equivalent to a warranty of title. So, in the case of an executory contract of sale there is a warranty of title. Morley v. Attenborough, per cur., ante, p. 467. Although, therefore, the maxim of caveat emptor applies, yet the exceptions "wellnigh eat up the rule so that there may be difficulty in Sims V.

finding cases to which the rule would practically apply." Marryatt, 17 Q. B. 291, per Ld. Campbell, C. J.; Accord. Eichholtz v. Bannister, 17 C. B., N. S. 708; 34 L. J., C. P. 105, per cur. Where the plaintiff had purchased some pieces of print in the warehouse of the defendant, and received an invoice in which the defendant was described as dealer in prints; the goods had been stolen, and the true owner claimed them; and it was held that the defendant had warranted his title to the goods. S. C.

Warranty of quality.] The following arrangement of the different classes of sales for the purpose of showing in which cases there is an implied warranty of quality, is taken from the judgment in Jones v. Just, L. R., 3 Q. B. 197, at pp. 202 et seq.; a few cases subsequent to, or not referred to in, that judgment being added:

1st. Where the goods are in esse, and may be inspected by the buyer, and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect is latent and not discoverable on examination, at least where the seller is neither the grower nor manufacturer. Parkinson v. Lee, 2 East, 314. So, in the case of the sale in a market of meat which the buyer has inspected, there is no warranty that the meat is fit for human food. Emmerton v. Matthews, 7 H. & N. 586; 31 L. J., Ex. 139. A sale by sample falls under this rule if the sample truly represent the bulk. Smith v. Hughes, L. R., 6 Q. B. 597.

2ndly. Where there is a sale of a definite existing chattel, specifically described, the actual condition of which may be ascertained by either party, there is no implied warranty. Barr v. Gibson, 3 M. & W. 390. So on the sale of a patent there is no warranty that it is valid. Hall v. Conder, 2 C. B., N. S. 22, 53; 26 L. J., C. P. 138, 288, Ex. Ch.; Smith v. Buckingham, 18 W. R. 314, H. T. 1870, Q. B.

3rdly. Where a known, described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still, if the known, described, and defined thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. Chanter v. Hopkins, 4 M. & W. 399; Ollivant v. Bayley, 5 Q. B. 288. See Chalmers v. Harding, 17 L. T., N. S. 571, H. T. 1868, Ex.

4thly. Where a manufacturer or dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied warranty that it shall be reasonably fit for the purpose to which

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