§ 1134. A mere forbearance or omission to sue by the creditor will not discharge the guarantor unless such creditor be under some obligation to sue, and unless his forbearance would prejudice the claim of the guarantor upon the principal and thereby injure him.2 And generally a creditor is under no obligation towards a surety, of active diligence to collect the debt of the principal.3 So, also, an omission to make a proper presentment for payment to the principal will not discharge the guarantor, unless presentment be a condition precedent, as in the case of an indorser of a promissory note or bill of exchange, or unless the guarantor sustain some damage in consequence of non-presentment; in which case his liability will be thereby reduced pro tanto.4 If, indeed, the principal be insolvent when the debt on which the guaranty is given becomes due, no demand need be made on the principal, in order to bind the guarantor, upon the presumption that, in such a case, no injury could be done to the guarantor by want of notice;1 yet, if any injury be thereby occasioned, the guarantee is responsible therefor.
1 Wildes v. Savage, 1 Story, 25; Dole v. Young, 24 Pick. 250; Mus-sey v. Rayner, 22 Pick. 223; Reynolds v. Douglass, 12 Pet. 497; 3 Kent's Comm. p. 123; Thrasher v. Ely, 2 S. & M. 139.
2 Eyre v. Everett, 2 Russ. 381; Orme v. Young, Holt, N. P. 84; Goring v. Edmonds, 6 Bing. 94; s. c. 3 M. & P. 259; Locke v. U. S., 3 Mason, 410; Oxford Bank v. Lewis, 8 Pick. 458; Hunt v. Bridgham, 2 Pick. 581; Blackstone Bank v. Hill, 10 Pick. 129; Sprigg v. Bank of Mount Pleasant, 14 Pet. 204; McDoal v. Yeomans, 8 Watts, 361.
3 Glazier v. Douglass, 32 Conn. 393 (1865). And a surety to whom the maker of a promissory note has assigned a bond for a deed may, upon being obliged to pay the note, recover the amount of the note from a prior party in the absence of evidence that he could, by due diligence, have obtained any thing by enforcing the bond. Coburn v. Parker, 11 Gray. 335 (1858).
4 Van Wart v. Woolley, 3 B. & C. 439; Holbrow v. Wilkins, 1 B. & C. 10; Gibbs v. Cannon, 9 S. & R. 202; Oxford Bank v. Haynes, 8 Pick. 423.
§ 1135. Where a guarantee has been guilty of such laches as to deprive himself of any legal claim in respect of the guaranty, the guarantor may, nevertheless, by waiving those laches, render himself responsible. And such a waiver may arise by implication; as if a guarantor of a promissory note pay interest thereon to the guarantee, after knowledge of laches on the part of the latter which would have destroyed his legal claim; for such an act would be a recognition of a still existing right in the guarantee, at variance with any other supposition than that of a waiver,2 even if the interest was paid on account of threats made by the holder to sue on other debts if the interest was not paid. But in case a waiver is relied upon by the guarantee, he must prove it.3
§ 1136. The obligation of the surety or guarantor may also be extinguished by the Statute of Limitations,4 when it arises by simple contract. The statute requires that the actions mentioned therein, among which is the action upon the contract of guaranty, must be brought within six years next after the cause of action arises. The time from which the statute begins to run, is, however, to be reckoned, not from the date of the contract, but from the time when the obligation becomes absolute, so that it can be sued; as when a note or bill becomes due, or when the principal makes default in a case of guaranty. A payment on account by the principal within six years would not, however, deprive the guarantor of the benefit of the statute,1 although an acknowledgment, either verbal or in writing, by the guarantor, within six years, would deprive him of the benefit of the statute.2
1 Wildes v. Savage, 1 Story, 22; Reynolds v. Douglass, 12 Pet: 497; Beebe v. Dudley, 6 Foster, 249.
2 Sigourney v. Wetherell, 6 Met. 553; Holl v. Hadley, 2 Ad. & El. 758.
3 Gamage v. Hutchins, 23 Me. 565. The sureties on a guardian's bond are not discharged from liability by the fact that the guardian's account is not settled until more than two years after his death, and after the right of action against his administrator is barred by the • special Statute of Limitations against administrators, limiting their liability to two years. Chapin v. Livermore, 13 Gray, 561 (1859).
4 21 Jac. 1, c. 16; Holl v. Hadley, 2 Ad. & El. 758. See post, Statute of Limitations.
§ 1137. In cases of specialties, where the statute does not apply, mere lapse of time can be used only as evidence of payment, to be credited or not, according to the circumstances of the case. But, where the statute applies, the lapse of the time designated therein operates as a conclusive bar.3
§ 1138. A guarantor cannot discharge himself from liability by giving notice to the guarantee that he will not be bound any farther, unless there be some special agreement to that effect in the original instrument,4 or unless there be fraud on the part of the guarantee.5 But on a continuing guaranty for the honesty of a servant, if the master discover that the servant has been guilty of dishonesty in the course of the service, and, instead of dismissing the servant, continue him in his employ, without the knowledge and consent of the surety, express or implied, he cannot afterwards have recourse to the surety to make good any loss which may arise from the dishonesty of the servant during the subsequent service.6 So a guaranty of any advances that may be made to A. "for the space of twelve calendar months," and for which the guarantor has received no consideration, may be revoked by him upon sufficient notice to the holder, so that he would not be liable for advances made afterwards.7
1 Theobald on Principal and Surety, 110, 111; Burleigh v. Stott, 2 Man. & Ry. 93; s.c. 8 B. & C. 36; Slater v. Lawson, 1 B. & Ad. 396; Atkins v. Tredgold, 3 Dowl. & R. 200; s. c. 2 B. & C. 23.