3. Second, if the new promise is for a liability then first incurred, it is original, if exclusive credit is given to the promisor. 5 All. Mass. 370 ; 13 Gray, Mass. 613 ; 28 Conn. 544; Brown eStat. Fr. 195. Whether exclu sive credit is so given, is a question of fact for the jury. 7 Gill, Md.7. Merely charging the debtor n a book-account is not conclusive. Whether promises merely to indemnify come within the statute, is not wholly settled. Browne, Stat. Fr. 158. In many oases they are held to be original promises, and not within the statute. 15 Johns. N. Y. 425 ; 4 Wend. N. Y. 657. But few of the cases, however, have been decided solely on this ground, most of them falling within the classes of original promises before specified. On principle, such contracts seem within the statute if there is a liability on the part of any third person to the promisee. If not, these promises would be original under class seven, above. Whets the indemnity is against the promisor's own default, he is already liable without his pro mise to indemnify ; and to make the promise collateral would make the statute a covert fraud. 10 Ad. & E. 453 ; 1 Gray, Mass. 291 ; 10 Johns. N. Y. 242; 1 Ga. 294; 5 B. M mr. Ky. 382; 20 Vt. 205 ; 10 N. H. 175; 1 Conn. 519 ; 5 Me. 504.
4. Third, guaranties may be given for liabilities thereafter to be incurred, and will attach when the liability actually accrues. In this class the promise will be original, and not within the statute, if credit is given to the promisor exclusively. 2 Tern:, 80; 1 Cowp. 227. But where the future obligation is contingent merely, the new promise is held not within the statute, on the ground that there is no principal liability when the collateral one is incurred. Browne, Stat. Fr.
196. But this doctrine is questionable if the agreement distinctly contemplates the contingency. 1 Cranch, C. C. 77 ; 5 Hill, N. Y. 483. An offer to guarantee must be accepted within a reasonable time ; but no notice of acceptance is required if property has been delivered under the guaranty. 8 Gray, Mass. 211; 2 Mich. 511.
Guaranty may be made for the tort as well as the contract of another, and then comes under the term miscarriage in the statute.
2 Barnew. & Ald. 613; 2 Day, Conn. 457; 1 Wilts. 305 ; 9 Cow. N. Y. 154 ; 14 Pick. Mass. 174. All guaranties need a consideration to support them, none being presumed as in case of promissory notes ; and the considera tion must be expressed in a written guaranty.
3 Johns. N. Y. 310 ; 7 Wend. N. Y. 246 ; 24 id. N. Y. 35 ; 21 N. Y. 316 ; 5 East, 10. For bearance to sue is good consideration. 1 Kehl. 114 ; Croke Jac. 683 ; 3 Bulstr. 206 ; Burge, Surety. 12; Browne, Stat. Fr. 190 ; 1 Cow. N. Y. 99 ; 4 Johns. N. Y. 257 ; 6 Conn. 81. Where the guaranty is contemporaneous with the principal obligation, it shares the consi deration of the latter. 8 Johns. N. Y. 29 ; 1 Paine, C. C. 580 : 14 Wend. N. Y. 246 ; 2 Pet. 170 ; 3 Mich. 396 ; 36 N. H. 73.
A guaranty may be for a single act, or may be continuous.
5. The authorities are not agreed as to the negotiability of a guaranty. It is held that
a guaranty which is a separate and distinct instrument is not negotiable separately. 8 Watts, Penn. 361 ; 3 Watts & S. Penn. 272; 4 Chandl. Wisc. 151 ; 14 Vt. 233. But if a guaranty is on a negotiable note, it is nego tiable with the note; and if the note is to bearer, the guaranty has been held to be ne gotiable in itself. 24 Wend. N. Y. 456 ; 6 Humphr. Tenn. 261. But an equitable inter. est passes by transfer, and the assignee may sue in the name of the assignor. 12 Serg. R. Penn. 100; 20 Vt. 506.
It is held that a guaranty is not enforce able by others than those to whom it is di.
rected, 3 McLean, C. C. 279; 1 Gray, Mass. 317; 13 id. 69; 6 Watts, Penn. 162 ; 10 Ala. N. s. 793, although they advance goods thereon. 4 Cranch, 224.
In one case it was held that the guarantor was not bound where the guaranty was ad dressed to two and acted on by one of them only. 3 Tex. 199. It was held, also, that the guaranty was not enforceable by the survivor of two to whom it was addressed, for causes occurring since the decease of the other. 7 Term, 254.
In the case of promissory notes, a distinc tion has sometimes been made between a guaranty of payment and a guaranty of col lectability ; the latter requiring that the holder shall diligently prosecute the prin cipal debtor without avail. 4 Wise. 190; 25 Conn. 576; 2 Hill, N. Y. 139; 6 Barb. N. Y. 547; 26 Me. 358; 4 Conn. 527.
It has in some eases been held that an in dorsement in blank on a promissoity note by a stranger to the note was prima facie a guaranty.
6. A guarantor is discharged by a material alteration in the contract without•his consent.
The guarantor may also be discharged by the neglect of the creditor in pursuing the principal debtor. The same strictness as to demand and notice is not necessary to charge a guarantor as is required to charge an indorser; but in the case of a guarantied note the demand on the maker must be made in a reasonable time, and if he is solvent at the time of the maturity of the note, and re mains so for such reasonable time afterwards, the guarantor does not become for his subsequent insolvency. 8 East, 242; 2 H. Blackst. 612 ; 18 Pick. Mass. 534. Notice of non-payment must also be given to the gua rantor, 2 Ohio. 430; but where the name of the guarantor of a promissory note does not appear on the note, such notice is not neces sary unless damage is sustained thereby, and in such case the guarantor is discharged only to the extent of such damage. 12 Pet. 497. It is not necessary that an action should be brought against the principal debtor. 7 Pet. 113. See, also, 2 Watts, Penn. 128; 11 Wend. N. Y. 629. From the close connection of guaranty with quretyship, it is convenient to consider many of the principles common to both under the head of suretyship, which article see.
Consult Fell on Guaranty; Burge, Theo bald, on Suretyship; Browne on Statute of Frauds; Addison, Chitty, Parsons, Story, on Contracts.