A guaranty may be extinguished or discharged by the fact that the guarantee gives no notice to the guarantor of the failure of the ment with the principal promisor, without the consent of the surety, to receive payment by yearly instalments, he thereby discharges the surety. And see further, Draper v. Romeyn, 18 Barb. 166; Lime Rock Bank v. Mallett, 34 Me. 547.

(j) Perkins v. Oilman, 8 Pick. 229. And in Fullam v. Valentine, 11 Pick. 156, where the defendant was arrested on mesne process and gave bail, and the plaintiff, before judgment was rendered, covenanted not to arrest him on any writ or execution within four months, it was heldy that the bail was not thereby discharged, for the covenant was only collateral to the action, and did not deprive the plaintiff of the power to arrest the defendant, nor the bail of the power to surrender him, within the four months.

( k) Fullam v. Valentine, supra. (l) Wilson v. Foot, 11 Met. 285. (m) Dubuisson v. Folkes, 30 Miss. 432; Shook v. State, 6 Ind. 113; Bangs v. Mustier, 23 Barb. 478.

1 A surety may have an injunction against the collection of a note, the time of payment of which has been extended without his consent. Bradshaw v. Combs, 102 111. 428.

principal debtor, and of the intention of the guarantee to enforce the guaranty.1 For a guarantor is entitled to reasonable notice of this. What the notice should be, or when it should be given, is not settled in the case of a mere guarantor as it is in the case of an indorser, but the reason and justice are the same in both cases, and equally require notice, in order that the guarantor may at once take what measures are within his power to secure or indemnify himself. The question of reasonable * time is a question of law, and the cases are very few which would help us in determining what time would be reasonable. But from the authorities and the reason of the thing, we deduce these rules: the guarantor is entitled to this notice, but cannot defend himself by the want of it, unless the notice and demand have been so long delayed as to raise a presumption of waiver or of payment, or unless he can show that he has lost by the delay opportunities for obtaining securities which a notice or an earlier notice would have given him. (n) 2 In this latter case a very brief delay, of a day or two only, might be fatal to the claim of the guarantee, if it appeared that notice could easily have been given, and would have saved the guarantor from loss. The question would be, in such a case, was there actual negligence, causing actual injury. (o) We think that cases which appear to hold that no notice needs to be given to an absolute guarantor, (oo) 1 or to a guarantor of a note, (op) are to be interpreted in accordance with the principles above stated.

(n) Allen v. Rightmere, 20 Johns. 366; Douglass v. Howland, 24 Wend. 35; Farrow v. Respess, 11 Ired. L. 170; Woodstock Bank v. Downer, 1 Williams, 539; Yancey v. Brown, 3 Sneed, 89; Dowley v. Camp, 22 Ala. 659; Louisville M. Co. v. Welsh, 10 How. 461; Dunbar v. Brown, 4 McLean, 166; F. & M. Bank v. Kerche-val, 2 Mich. 504. Insolvency of a principal, which will not excuse demand and notice to an indorser, will excuse it in case of guaranty. Bashford v. Shaw, 4 Ohio St. 263.

(o) Oxford Bank v. Haynes, 8 Pick. 423; Thomas v. Davis, 14 Pick. 353; Talbot v. Gay, 18 id. 534; Whiton v. Mean, 11 Met. 563; Farmers' & Mechanics' Bank v. Kercheval, 2 Mich. 504; Bick-ford v. Gibbs, 8 Cush. 154.

1 A surety is not entitled to notice, Harris v. Newell, 42 Wis. 687; Central Saving Bank v. Shine, 48 Mo. 456; McMillan v. Bull's Head Bank, 32 Ind. 11; Atlantic, etc. Tel. Co. v. Barnes, 64 N. Y. 385; nor in some states a guarantor, Barhydt v. Ellis, 45 N. Y. 107 ; Gage v. Lewis, 68 Ill. 604; Gage v. Mechanics' Bank, 79 Ill. 62; Kauzt-man v. Weirick, 26 Ohio St. 330. If the liability, however, is contingent, there must he reasonable notice. March p. Putney, 56 N. H. 34. See Clay v. Edgerton, 19 Ohio St 549. Thus in a continuing guaranty notice of the debtor's default and of the extent of the guarantor's liability should be given to the guarantor within a reasonable time after all transactions are closed. Davis Sewing Machine Co. v. Mills, 55 Ia. 543. - That reasonable notice is a question for the jury, see Craig v. Parkis, 40 N. Y. 181.

2 In McMillan v. Bull's Head Bank. 32 Ind. 11, the rule is stated to be that a surety is not entitled to notice of the default of the principal, however such want of notice may, in fact, injure him; but that a guarantor should be given notice, in default of which he will be discharged to the extent that he can prove that he has suffered damage. Gaff v. Sims, 45 Ind. 262; Rockford Bank p. Gaylord. 34 la. 246 Notice need not be even if the principal is insolvent, Montgomery v. Kellogg, 43 Miss. 486; Brackett v. Rich, 23 Minn. 485.

A demand on the principal debtor, and a failure on his part to do that which he was bound to do, are requisite to found any claim against the guarantor; and notice of the failure, as we have said, must be given to him. (p) But if the guaranty is for the payment of a note, and is absolute and unconditional, it has been held that neither demand nor notice is necessary to charge the guarantor; (q) but we should have some question of this.

If the guaranty be that the debt or note is collectible, legal proceedings against all the principals are requisite to make the guarantor liable, (r) 2 because otherwise it cannot be certainly known that the note cannot be collected.