Selected Cases on the Law of Suretyship and Guaranty (Paperback)

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: death in November, 1826. Hooper's estate being insolvent, plaintiffs received a dividend therefrom of four hundred and forty- four dollars and thirty-nine cents, being the pro rata they were entitled to upon the two notes mentioned in the agreement, and a third note of two hundred and twenty-nine dollars and twelve cents. The dividend was received by plaintiff, under an agreement with defendant, that the rights of neither should be affected thereby. In the summer of 1825, seven hundred dollars were paid on the largest of the two notes mentioned in defendant's agreement. In June, of the same year, the defendant allowed the land conveyed to him by Tristram to be sold and the proceeds to be paid to Hooper. No notice of the non-payment of the two notes was ever given to the defendant, nor demand made on him until after the commencement of this action; nor did it appear that plaintiff had ever taken any measure to enforce payment from Hooper. Whether the action could be maintained was submitted to the court. By Court, Mellen, C. J. Strictly speaking, guarantors, in- dorsers, and co-obligors, or co-promisors are all sureties for others, who are the principals; but still, in common parlance, the word surety is used, in a more limited sense, to mean a co- obligor or co-promisor, entering into a contract with the principal jointly, or jointly and severally, and at the same time. He may, in all cases, be sued jointly with the principal. No demand of the debt, or notice of its non-payment by the principal, need be proved in an action against such surety, in any case. But the contract of a guarantor is entered into by him before or after that of the principal, generally, and has, in terms, a special reference thereto. His contract always being of this peculiar character, he must always be ...