* of the guarantor is measured by that of the principal, and will be so construed, unless a less or a larger liability is expressly assumed by the guarantor; as if he guaranteed payment of a note by an indorser, whether the indorser were notified or not.

No special words, or form, are necessary to constitute a guaranty. If the parties clearly manifest that intention, it is sufficient; and if the guaranty admits of more than one interpretation, and the guarantee has acted to his own detriment with the assent of the other party, as by advancing money, on the faith of one interpretation, that will prevail, although it be one which is most for the interest of the guarantee. (/) Still the contract is construed, if not strictly, accurately, (g)l and a guaranty of the notes or debts of one, not only does not extend to his notes given jointly with another, (h) but if that one varies his business so as to change his liability from that which it was intended to guaranty, it would seem that the guarantor is discharged. (i) And the note, as he would not be if he elected to avoid such liability, an assumpsit upon the delivery of the goods must be considered as subsisting against him, and the note of the surety be regarded as a collateral security for the payment. In this case nothing was paid at the time by the plaintiff. He only became surety for the payment. That was the contract as agreed to by all the parties. Had the plaintiff given his sold note, the case might have been different. He would then have assumed the whole liability, by the terms of the agreement, and the goods have been delivered entirely upon his credit. The defendant would have had no further concern with it, and no right to interfere. But that was not the case here. The defendant had the right to pay and take up the note given by himself and the plaintiff, and he had this right only because he was in fact a debtor. He most unquestionably had a right to pay a note upon which he was a promisor. Suppose he had paid, whose debt would he have discharged? If the plaintiffs debt, then he must have had a claim against the plaintiff. But no such claim could have arisen upon such payment. If he had paid, then he would have discharged his own debt. But how could this be, if his debt had been paid by the giving of the note itself? Had the defendant paid the note, no right of action would ever have accrued to the plaintiff against him. Under such circumstances there is no ground for the position that the giving of the note was of itself a payment of the defendant's debt, so that a cause of action arose immediately to the plaintiff upon its execution; and the jury were correctly instructed that the cause of action arose when the defendant paid the money." Clark v. Foxcraft, 7 Greenl. 348.

(f) Bell v. Bruen, I How. 186; Lawrence v. McCalmont, 2 id. 449; Tatum v. Bonner, 27 Miss. 760.

(g) Bigelow v. Benton, 14 Barb. 123; Ryan v. Trustees, 14 Ill. 20; Fisher v. Cutter, 20 Mo. 206.

(A) Russell v. Perkins, 1 Mason, 368.

(i) Id.; Wright v. Russell, 3 Wils. 530; s. c. 2 W. Bl. 934; Dry v. Davy, 10 A. & E. 30.

1 The liability of a surety is limited to the express terms of the contract, Mix v. Singleton, 86 HI. 194; the terms of which should be construed strictly and favorably to him, Ward v. Stahl, 81 N. T. 406. Stall v. Hanse, 62 1ll. 52, was to the effect that a doubt is generally, if not universally, solved in favor of a surety. - A guaranty to pay in case the holder "fails to recover" on a note, means a failure, after diligently prosecuting the maker. Jones v. Ashford, 79 N. C. 172. - The placing a seal on a guaranty changes neither its nature nor construction. Jordan v. Dobbins, 122 Mass. 168. See further, as to construction, In re N. Y. Cent R. Co. 49 N. Y. 414; Palmer v. Foley, 71 N. Y. 106; Belloni 0. Freeborn. 63 N. Y. 883; Birdsall v. Heacock, 32 Ohio St. 177; Montgomery v. Hughes, 65 Ala. 201.

guarantor who pays the debt of his principal is entitled to all the securities of the creditor, who must preserve them unimpaired; (j)1 and equity will restrain a guarantee from enforcing his guaranty, until he has done what is * necessary to turn these securities to account, if he alone can do this. (k) And if the creditor gives up any security for his debt without the guarantor's consent, he must account to the guarantor for it. (kk) So if the creditor agree with the principal that the debt shall be reduced or abated in a certain proportion, the guarantor consenting, he cannot hold the whole of the original guaranty, but must permit that to be abated or reduced in the same proportion. (l) 2 But after the guarantor has paid the debt, he has no right to demand an assignment to himself of the debt, or of the instrument which creates or expresses the debt, if a promissory note, bond, or the like, for the very reason that the debt, and with it the instrument, has been discharged, and so made of no effect. (m) 3

(j) Craythorne v. Swinburne, 14 Ves. 162; Parsons v. Briddock, 2 Vera. 608; Wright v. Moreley, 11 Ves. 12; Copis v. Middleton, Tarn. & R. 224; Hodgson v. Shaw, 3 Myl. & K. 183; Yonge v. Reynell, 15 £. L. & E. 237; 8. c. 9 Hare, 809; McDaniels v. Flower Brook Manf. Co. 22 Vt. 286; Grove v. Brien, 1 Md. 438; Mathews v. Aikin, 1 Comst. 595; Watson v. Alcock, 19 £. L. & E. 239; Strong v. Foster, 33 E. L. & E. 282; s. c. 17 C. B. 201; Pearl St. Cong. Soc. v. Imlay, 23 Conn. 10. In Chapman v. Collins, 12 Cush. 163, held, that payment of a note by a principal discharges the surety, so that the note cannot again be put in circulation against him.

(k) Cotton v. Blane, 2 Anst. 544; Wright v. Nutt, 3 Bro. Ch. 326; s. c. 1 H. Bl. 137; Wright v. Simpson, 6 Ves. 728.

(kk) Thames v. Barbour, 49 111. 370.

(l) Bardwell v. Lydell, 7 Bing. 489.

(m) Copis v. Middleton, Torn. & R. 224; Hodgson v. Shaw, 3 Myl. & K. 183; Pray v. Maine, 7 Cush. 253. But see Low v. Blodgett, 1 Foster (N. H.), 121; Goodyear v. Watson, 14 Barb. 486; Edgerly v. Emerson, 6 Foster (N. H.), 557; Alden v. Clark, 11 How. Pr. 209.

1 York v. Landis, 65 N C. 535; Price v. Trusdell, 1 Stewart, 200. Thus a surety paying a mortgage note is entitled not only to the benefit of the mortgage, but to the surplus, if any, remaining from a sale of the mortgaged property under a prior mortgage. Ottawa Bank v. Dudgeon, 65 I1l. 11. See Hall v. Hoxsie, 84 Ill. 616. Guild v. Butler, 127 Mass. 386, states the rule to be, that a surety is entitled, in equity, to the benefit of any collateral security received by the creditor from the principal debtor; and if the creditor, knowing the relation between the debtors, surrenders part of such security, without the consent of the surety, the surety is exonerated to the amount so surrendered, although the relation of the debtors does not appear on the face of the debt, and first became known to the creditor after the debt was contracted; and that one who makes a promissory note for the accommodation of another is a surety, within this rule, and may avail himself of this equity in defence of an action at law against himself.

2 Where a surety agrees to be liable for a part only of a debt, he may deduct a ratable proportion, reckoned on such part, of all dividends paid on the entire debt, and a continuing guaranty, limited in amount, made to secure a floating balance, is prima facie, at least, an agreement of liability for part only of the ascertained debt; but a guaranty, limited in amount, made to secure the entire debt, is entitled to no such deduction. Ellis v. Emmanuel, 1 Ex. D. 157.

3 In New York, a surety is, however, entitled to such an assignment as well as of collateral security. Ellsworth v. Lockwood, 42 N. Y. 89; Hinckley v. Kreitz, 58 N. Y. 583, 591.

It should be added, that unless the conditions of a guaranty are strictly complied with by the party to whom it was given, the guarantor will not be bound. (n)