Jabez Talbot versus Lemuel Gay, 18 Pick. 534

Wilde J. delivered the opinion of the Court. Upon the facts reported, we are of opinion, that this action cannot be maintained. The contract of the defendant is clearly one of guaranty only, and is subject to the rules which govern that species of contract. This appearsfrom the express terms of the contract, which cannot be construed so as to charge the defendant as a surety. The parties must be presumed to have known the distinction between such contracts, and to have framed the present contract with a full knowledge of the legal duties and liabilities imposed and undertaken thereby.

The undertaking of a guarantee of a promissory note is conditional, and he will be discharged by the neglect of the holder to demand payment of the maker, -and to give the guarantee notice of non-payment, provided tin, ■maker was solvent when the note fell due, and afterwards be •came .insolvent. Oxford Bank v. Haynes, 8 Pick. 423, Gibbs v. Cannon, 9 Serg. & R. 202; Phillips v. Astling, 2 Taunt. 206.

The same strictness of proof as to the demand and notice is not necessary to charge a guarantee, as is required to charge an indorser ; but the demand on the maker, if he he solvent at the time the note falls due, must be made in a reasonable time ; and if the holder shall unreasonably delay so long as to cause an injury to the guarantee, he will be discharged. Warrington v. Furber, 8 East, 242; Nicholson v. Gouthit, 2 H. Bl. 612.

Now it appears clearly by the facts reported, that the maker of the note was solvent when it fell due, and if the plaintiff had used due diligence, it might have been secured by an attachment of his property. In addition to the mortgaged property, the maker was in the open and visible possession of other property liable to attachment, at the time the last payment on the note became due, and for a long time after.

And besides, the plaintiff might have obtained payment wholly, or in part, out of the rents and profits of the mortgaged- estate, if he had taken seasonable possession of it, as he ought to have done, instead of allowing the mortgager to continue for years to receive the rents and profits. It is clear, therefore, that the plaintiff is chargeable with gross loches ; as while he thus neglected to make any attempt to secure and collect the note of the maker, he made no demand of him, and gave no notice of the non-payment to the defendant.

The maker has since become insolvent, so that the debt has been lost by the plaintiff’s neglect, and the loss must fall upon him. Judgment on nonsuit.