Claim on a guarantee for honesty of a servant. But the consideration need not appear on the writing. The essen tial characteristic of the contract of guarantee. The promise must be made to the original creditor. Guarantees given to a firm invalidated by any change in the firm. 2. In the month of March, 1872, M. N. was desirous of entering into the employment of the plaintiffs as a traveller and the frequent failures of justice arising from the cause just explained, at length enacted by the 19 & 20 Vict., c. 97, s. 3, that no such promise should be deemed invalid by reason only of the consideration for such promise not appearing in writing or by necessary inference from a written document. There are some agreements which at first glance present features strongly resembling guarantees, but which do not really possess the essential character of that contract, which is, that there must be a third person primarily liable, and then the guarantor promises the creditor that if the debtor will not pay he (the guarantor) will. Therefore, if the promise is given in terms implying the acceptance of a sole liability, as where A. says to a trader with regard to goods supplied to B., "I will see you paid," and the price of the goods is charged to A., this is not a guarantee, as would be a promise that if B. did not pay A. would. So where the promise involves an extinction of the original debt, or a transfer of it to the promissor. Thus, where before the partial abolition of imprisonment for debt, and when arrest on a ca.sa., followed by discharge of the debtor from prison, put an end to the claim against him, if a person promised the creditor that he would pay the debt if the debtor were discharged, this was no guarantee, because there was no person primarily liable after the promise was made. (Goodman v. Chase, 1 B. & Ald. 297.) The doctrine is very clearly laid down in Mountstephen v. Lakeman (L. R. 7 Q. B. 196 (Ex. Ch.) affirming L. R. 7 H. L. 17). It is there, moreover, laid down that the fact of the original liability ceasing does not take away its character of a guarantee from the defendant's promise, and that it is sufficient to give it this character if the original or primary debtor continues liable during any time after the contract is made. The promise must be made to the original creditor. (Eastwood v. Kenyon, 11 Ad. & E. 438; Reader v. Kingham, 32 L. J. C. P. 108.) Therefore a promise by A. to a County Court bailiff about to arrest B., a debtor, on a warrant of commitment, that if he would not arrest him he would pay the creditor, or surrender B. on a given day, was held in the last-mentioned case not to be within the statute. The agreement to be answerable for the payment of goods sold by a del credere agent to his customers is not within the above provision, for although it may eventuate in a liability to pay the debt of another, that is not the immediate object of his promise. (Coutourier v. Hastie, 8 Ex. 40; 22 L. J. Ex. 97.) The names of both parties to the contract of guarantee must appear in the note, though the signature of the guarantor only is necessary." (Williams v. Lake, 29 L. J. Q. B. 1.) Though the consideration can now be shown by parol, yet the promise must appear in the instrument without reference to extrinsic facts or arrangements. (Holmes v. Mitchell, 28 L. J. C. P. 301.) By 19 & 20 Vict., c. 97, s. 4, no promise to answer for the debt, default, or miscarriage of another made to a person, or two or more persons, or to one person trading under the name of a firm-and no promise to answer for the debt, &c., of such firm, persons, or person, so trading--shall be binding on the maker in respect of anything done or omitted to be done after a change in any one or more of the firm or persons so trading, unless the intention that the promise shall continue to bind, notwithstanding such change shall appear by express stipulation or by necessary implication from the nature of the firm or otherwise. collector, and it was agreed between the plaintiffs and the de- Guarantee for good fendants and M. N. that the plaintiffs should employ M. N. conduct of upon the defendants entering into the guarantee hereinafter a servant. mentioned. 3. An agreement in writing was accordingly made and entered into on or about the 30th of March, 1872, between the plaintiffs and the defendants, whereby in consideration that the plaintiffs would employ M. N. as their collector, the defendant agreed that he would be answerable for the due accounting by Defences.]-1. A denial that there was a binding contract.Such a defence should state on what ground the validity of the contract was impugned, as that there was no sufficient writing within the Statute of Frauds, as amended by 19 & 20 Vict. c. 97, or that there was no consideration for the promise. 2. Concealment of material particulars by the principal (i. e., semble the creditor) at the time the contract was made.-The duty of the principal, i. e., what he is bound to disclose, is always a question for the jury, subject to the direction of the judge. The duty of the creditor towards a surety in such circumstances is laid down by Lord Campbell, in Hamilton v. Watson (12 Cl. & F. 109). He says a surety is only entitled to the 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 undertakes to be responsible for a cash credit given to a customer of a banker, the banker is not bound voluntarily to communicate that the intention is to apply the credit to an old debt due to the banker by the customer. And see North British Insurance Co. v. Lloyd, 10 Ex. 523; 24 L. J. Ex. 14, in which the Court adhered to Lord Campbell's opinion, and laid down that the rule which prevails in assurances upon ships or lives that all material circumstances known to the assured must be disclosed, though there be no fraud in the concealment, does not extend to the case of guarantee. In the latter case the concealment to vitiate the guarantee must be fraudulent. in the position of the debtor or creditor. 3. Alteration of the position of parties.-Any change by a binding The effect agreement in the relative position of the creditor and a principal of change debtor, whereby the latter is released or the remedy against him suspended, or the risk of the surety is varied without his assent, will discharge the surety or guarantor. (Lewis v. Jones, 4 B. & C. 506 and 515 n.; Cragoe v. Jones, L. R. 8 Ex. 81; Wilson v. Lloyd, L. R. 16 Eq. 60.) But if the rights against the surety are reserved, the latter is not discharged. (Bateson v. Gosling, L. R. 7 C. P. 9.) The alteration of the liabilities of the principal debtor by statute has the same effect as by agreement between him and the creditor. (Pybus v. Gibb, 6 E. & B. 902; 26 L. J. Q. B. 41.) See enactment of 18 & 19 Vict. c. 79, s. 4, cited ante, p. 336, as to effect of change in a firm on liability of guarantor of debts due to or by them. 4. The parting with or loss of any security held by the creditor against the principal debtor, even though the guarantor may not have known of its existence, and though it may have been made or given subsequent to the contract of guarantee, will discharge the guarantor to the extent of the value of the security. And neglecting to take advantage of a security will have the same effect as its loss in this respect as in the case of a bill of sale which the creditor neglects to register or enforce in the event of anticipated insolvency. Ꮓ The loss by the creditor of any security. Guarantee for good conduct of a servant. Claim in guarantee for pay. ment of ent. M. N. to the plaintiffs for, and the due payment over by him to the plaintiffs of all moneys which he should receive in their behalf as their collector. 4. The plaintiffs employed M. N. as their collector accordingly, and he entered upon the duties of such employment, and continued therein down to the 31st of December, 1873. 5. At various times between the 29th of September and the 25th of December, 1873, M. N. received on behalf of the plaintiffs, and as their collector, sums of money from debtors of the plaintiffs amounting in the whole to the sum of £950; and of this amount M. N. neglected to account for or pay over to the plaintiff sums amounting in the whole to £227, and appropriated the last-mentioned sums to his own use. 6. The defendants have not paid the last-mentioned sums or any part thereof to the plaintiffs. The plaintiffs claim : Action on Guarantee for Payment of Rent. 1. In or about the month of 1877, the plaintiff was possessed of the messuage and premises No. -, in the city of London. 2. One Clara M. then applied to the plaintiff to let to her the said premises, and the plaintiff agreed so to do upon the terms hereinafter mentioned, and upon being guaranteed the due payment of the rent for the same. 3. The defendant then requested the plaintiff to let to the said Clara M. the said premises upon the said terms hereinafter mentioned, and upon his entering into a guarantee in the words and figures following, that is to say "Sir, I hereby agree to guarantee the rent of £ on behalf of Miss Clara M. "Yours truly, C. C." 4. Thereupon the defendant signed the said guarantee, and in consideration thereof and of the premises, the plaintiff let the said premises to the said Clara M. on the of 1877, at the rent of £22 10s. a quarter, to hold the same from quarter to quarter until one quarter's notice to quit on either side should be given. 5. The said Clara M. entered into possession of the said premises, and became tenant to the plaintiff on the terms afore for pay ment of 6. On the 1877, the sum of £22 10s. for one quarter's Guarantee rent became due and payable to the plaintiff from the said Clara M. in respect of the said tenancy, and all conditions were ful- rent. filled, and all things happened, and all times elapsed necessary to entitle the plaintiff to maintain this action for the same, yet neither the said Clara M. nor the defendant has paid the said £22 10s., and the same remains unpaid. The plaintiff claims : Statement of Defence. 1. The defendant as to the 3rd paragraph of the statement of Defence. claim denies that the said alleged guarantee is either legal or sufficient in law with reference to the Statute of Frauds. The Statute of Frauds. 2 (a). Between the 1st and 14th September, 1877, the plaintiff at the said demised premises committed a series of assaults upon the said Clara M. of so indecent and criminal a character An evicas to wholly prevent the said Clara M. from enjoying or occupying the said premises, and also to amount to an eviction of the said Clara M. therefrom. Action on Guarantee given for Rent of Farm and Re-delivery of in the a 1. The plaintiff is a land-owner residing at county of and is the owner of a farm and lands called "R." situate at M. in the said county. The defendant R. B. is farmer residing at N., in the aforesaid county, and the defendant C. H. N. is a farmer residing at M., in the county of C. 2. On or about the 18th day of March, 1873, one G. B. and the defendants by their bond became jointly and severally bound to the plaintiff in the sum of £1000, to be paid by the defendants to the plaintiff subject to a condition thereunder written, whereby after reciting that the plaintiff had agreed to let to the said G. B. from year to year a farm and lands called R., situate at M. aforesaid, and a stock of 700 heath-going sheep and that the said sheep were delivered to the said G. B. on the (a) A defence to this effect was sanctioned by a judge at Chambers. The defence originally contained a series of paragraphs, in which several acts of gross indecency were set out in detail. They were all struck out and the above paragraph substituted. tion. Action on a guarantee bond for rent of farm and re-delivery of stock. for rent of farm and of stock. Guarantee 11th day of April, 1873, and consisted of the number, species, and quality mentioned in the schedule annexed to the said re-delivery bond. . . . And that it had been agreed that the said G. B. or the defendants should enter into the said bond for the redelivery of the said sheep or the offspring thereof in manner therein after expressed, the condition of the bond was declared to be that if the said G. B., his heirs, executors, administrators, or assigns, did and should at the determination of the said tenancy deliver up unto the plaintiff, his heirs, &c., along with the said farm and premises the like number, species and quality of good and sound sheep as were delivered to the said G. B. as aforesaid, and of the same stock or of the offspring, breed, or produce thereof, all of which sheep so to be delivered should be and had been regularly going heathed and depastured upon the heaths, fells, pastures, and commons appurtenant to the said farm in like manner as the said stock of sheep delivered to the said G. B. as aforesaid were then heathed and depastured. . . . And in case the said stock of sheep should at the determination of the said tenancy be reduced or deteriorated in number, quality, or value, did and should pay to the plaintiff, his heirs, executors, administrators, or assigns, compensation for such deduction or deterioration, to be ascertained by a valuation to be made by W. N. and B. O. on behalf of the plaintiff, and J. L. and W. E. on behalf of the said G. B., and did and should yearly and every year during the said tenancy, pay or cause to be paid to the plaintiff, his executors, &c., by way of rent or interest for the said sheep the sum of £35 in two equal half-yearly payments on the 12th day of May and 12th day of November in each year-then the said bond or obligation should be void. 3. The plaintiff let the said farm and lands from year to year to the said G. B., and the said stock of 700 sheep, and the said G. B. entered the said farm and lands and took possession of the said sheep in accordance with the terms of the agreement recited in the said bond, and on the dates therein mentioned. 4. The said tenancy of the said farm and lands was determined on the 28th day of March last. 5. But the said G. B. did not deliver up unto the plaintiff along with the said farm and lands the like number, species, and quality of good and sound sheep as were delivered to the said |