became a surety on a bond for the hire of a slave, with a covenant for the return of the slave at the end of the period for which he was hired, it was held that the death of the slave during the period covered by the bond as a result of cruel treatment by the principal, would not discharge the surety from his liability for the return of the slave. (Carney v. Walden, 16 B. Monr. 388.) The surety was held because he was regarded as a joint covenantor with the principal, and neither could excuse his liability on the ground that the other by his wrongful act had made performance impossible.

Where the surety stipulates that the payment shall be made by the principal part in cash and balance in "good obligations," he is not responsible for bad notes taken and receipted for by the creditor. (Corbet v. Evans, 25 Pa. St. 310.) And when the surety's promise is to make good a balance remaining due after "sale" of mortgaged property of principal, the surety is not in default until the sale is completed. (Moor v. Roberts, 3 J. Scott [N. S.] 830.)

Sec. 890. REVOCATION OF GUARANTY ON DEATH OF GUARANTOR, AND BY NOTICE.-Unless the obligation of the surety is a bare authority, and not a contract it will not be revoked by his death. It is a valid obligation against the estate of the surety the same as though he were alive. (Brandt, Sur. & Guar., Sec. 134, citing Hightower v. Moore, 46 Ala. 387; Royal Ins. Co. v. Davies, 40 Ia. 469, etc.) But since the surety for the performance of a contract, may, after a default by the principal justifying

its determination, demand of the creditor that the contract be terminated, and his suretyship be limited to the damages then sustained (Hunt v. Roberts, 45 N. Y. 691), it is sometimes held that the death of the guarantor will operate as notice to the creditor of such termination, or operate to revoke his authority to give further credit on a limited guaranty. (Harriss v. Fawcett, L. R. 8 Ch. App. Cas. 866; Michigan State Bank v. Estate of Leavenworth, 28 Vt. 209.) And the death of the guarantor will revoke a continuing guaranty as to subsequent advances if the creditor has notice of the death. (Hyland v. Habich, 150 Mass. 112.) The creditor or other party secured by a guaranty would have a reasonable time to secure other sureties, after receiving notice that the surety desired to be discharged before such notice would take effect. (Bostwick v. Van Voorhis, 91 N. Y. 353.).

Sec. 891. WHEN THE SURETY MAY BE SUED JOINTLY WITH THE PRINCIPAL.If the principal and surety are jointly liable on the same contract, they may be sued jointly, though the fact of the one being a surety appears on the instrument, as where a note reads "I promise" and is signed by the principal and another who adds "surety" to his name. (Dart v. Sherwood, 7 Wis. 523; Craddock v. Armor, 10 Watts 258.) Where the wording of the surety's promise shows that his liability is distinct from and collateral to that of the principal, as where the words are "in case of non-payment," or "not being fulfilled" on the part of the principal, the surety cannot be sued

jointly with the principal. (Cross v. Ballard, 46 Vt. 415; Virden v. Ellsworth, 15 Ind. 144.)

Sec. 892. SURETY NOT LIABLE AT LAW, MAY OR MAY NOT BE CHARGEABLE IN EQUITY.-A court of equity will charge a surety in many cases where he is not liable at law, as by allowing a lost bond to be set up (Kerney v. Kerney, 6 Leigh, Va., 478), reform a bond so as to correspond with the facts, intention or purpose for which it was given. (Olmsted v. Olmsted, 38 Conn. 309; Percival v. McCoy, 13 Fed. Rep. 379.) At law there is no remedy against the estate of a deceased surety in a joint obligation, and, in general, equity will not charge the estate of such surety, unless there is some previous equity, or all the obligors partook of the consideration, and it would appear that the intention had been to make a joint and several note instead of a joint one.*

Where the surety or guarantor in a joint obligation is directly benefited by the contract, his estate will be held liable on the promise. (Richardson v. Draper, 87 N. Y. 337.) And the surety may expressly bind his estate so that it will be liable, and the State statutes providing that all causes of action founded on contract survive, will hold the estate of surety on a joint promissory note. (Redman v. Marvil, 73 Ind. 593.)

*Brandt, Sur. & Guar., Sec. 139; Pickersgill v. Lahnes, 15 Wall. 140. "Where a joint appeal bond is signed by two sureties, and one of them dies, his estate is discharged from liability, both at law and in equity, and the fact that the bond was given in pursuance of a statute does not affect the liability thereunder." (Brandt, Sec. 139, citing Wood v. Fisk, 63 N. Y. 245.)

Sec. 893. CONTRACT OF SURETY GOVERNED BY LAW OF PLACE WHERE MADE.-The general rule is that the liability of the surety or guarantor is construed according to the law of the place of making the contract. (Long v. Templeman, 24 La. Ann. 564.) The intention of the parties may change this rule, and make the contract subject to the laws of a state other than the one where executed. (Milliken v. Pratt, 125 Mass. 374.)

Sec. 894. LIABILITY OF SURETY WHEN PRINCIPAL DISCHARGED OR NOT ORIGINALLY BOUND.-As a general rule the surety is not bound where the principal for some reason is not bound by the contract on which the surety has promised, since the surety's contract is collateral or accessory to that of the principal, and the principal being discharged the surety is also. (Ferry v. Burchard, 21 Conn. 597.) But there are cases when the surety cannot take advantage of the release of the principal. A distinction is drawn as regards the reasons which discharge the principal, if they effect the debt or contract itself, as fraud, violence, or other reason avoiding the obligation the surety is discharged with the principal, but if they are personal to the principal, as insolvency, minority, and the like, the surety will not be released. (Baldwin v. Gordon, 12 Martin [La.] O. S. 378.) A release of the principal by the creditor without reservation will release the surety, since he has no right of action against such released principal. (Trotter v. But the creditor

Strong, 63 Ill. 272.)

But the creditor may reserve his

rights against the surety and release the principal, and yet hold the surety. (Green v. Wynn, L. R. 4 Ch. App. Cas. 204.) And where the surety is fully indemnified he will not be discharged by the creditor releasing the principal. (Moore v. Paine, 12 Wend. 123.) The discharge of the principal by act of law, as under a bankrupt or insolvency law, will not discharge the surety. (Cowper v. Smith, 4 M. & W. 519; Wolf v. Stix, 99 U. S. 1; Lackey v. Steere, 121 Ill. 598.) The authorities are divided as to the liability of the surety where the principal, who is named in the instrument, does not sign it at all. In a number of cases it is held that the surety is not liable, and in others he is held not to be released by such failure to sign.*

A surety for an infant or married woman is, in general, bound though such principal set up his or her disability and be discharged. The courts holding that the incapacity of the principal might be the very reason why a surety was required. (Bank v. Dillon, 30 Vt. 122; Weed Sewing Machine Co. v. Maxwell, 63 Mo. 486.)

Sec. 895. NECESSITY FOR DEMAND ON PRINCIPAL AND NOTICE OF DEFAULT TO GUARANTOR.-"The authorities are agreed

*Bean v. Parker, 17 Mass. 591; People v. Hartley, 21 Cal. 585; Johnston v. Kimball Twp., 39 Mich. 187; State v. Austin, 35 Minn. 51, hold that the surety will not be bound, while the following hold the contrary: State v. Bowman, 10 Ohio 445; State v. Peyton, 32 Mo. App. 522; Cahill's Appeal, 48 Mich. 616; Trustees of Schools v. Sheik, 119 Ill. 579; McIntosh v. Hurst, 6 Mont. 287.