Considera tion must appear on the face. Case of Wain v. Warlters. An important distinction, however, is taken on one point, on the ground that the words of the fourth section are, that the "agreement or some "memorandum or note thereof" must be in writing, and that the word "agreement" must be taken in its legal sense, and deemed to include not only the promise by the defendant, but also the consideration which is the foundation of such promise. This was first laid down in the celebrated case of Wain v. Warlters (t), and since that decision (although the doctrine has been questioned by high authority (u), ) it has been repeatedly recognised, and is now established beyond all doubt (v). It is accordingly held, that, unless the consideration for the promise, as well as the promise itself, be expressed on the face of the written memorandum, since parol evidence is inadmissible to supply proof of the consideration, the undertaking is to be deemed nudum pactum, and no action can be sustained thereon. (t) 5 East, 10. The distinction is clearly founded on the technical import of the word "agreement;" for it was afterwards determined on the 17th section, that, as the word there used is, not agreement, but “ bargain," the memorandum need not expressly state the consideration. Egerton v. Matthews, 6 East, 307. Supra, p. 72. (u) Per Lord Eldon, Ch., Minet ex parte, 14 Ves. Jun. 189; Gardom ex parte, 15 Ves. Jun. 286. (v) Saunders v. Wakefield, 4 B. & A. 595; Barrell v. Trussell, 4 Taunt. 121; Atkinson v. Carter, 2 Chit. Rep. 403; Morley v. Boothby, 3 Bingh. 107; Cole v. Dyer, 1 Cr. & Jer. 461; Clancy v. Piggott, 4 Nev. & Man. 496; Bushell v. Beavan, 1 Bingh. N. S. 103; Hawes v. Armstrong, id. 761; Ellis v. Levi, id. 767, n. ation. ficient con Thus, a guaranty in the words, " To the amount of Consider£100 consider me as a security on J. S.'s account," is void as not expressing a sufficient consideration for the promise(r). So it is, where the undertaking is expressed to be merely for goods already supplied to a third party (y). But where the What sufguaranty is for the payment of the price of goods sideration. which may be subsequently supplied to the third party, there is a sufficient consideration disclosed, to wit, the furnishing of the goods (*). So, where the consideration disclosed is, that plaintiff will consent to accept a security which he would not otherwise have taken (a), or that he will withdraw a security on which the third party is liable to him (b), or that he will employ or repose trust in a third party (c), the consideration expressed is suf (x) Jenkins v. Reynolds, 3 B. & B. 14; S. C. 6 B. Moore, 86. (y) Wood v. Benson, 2 Cr. & Jer. 95; S. C. 2 Tyrwh. 93; James v. Williams, 5 B. & Ad. 1109; S. C. 3 Nev. & Man. 196; 2 Dowl. P. C. 481; Lyon v. Lamb, Fell's Merc. Guar. 228. (z) Stadt v. Lill, 9 East, 348; S. C. 1 Campb. 242; Russell v. Mozely, 3 B. & B. 211; Wood v. Benson, 2 Cr. & J. 95. (a) Pace v. Marsh, 1 Bingh. 216; S. C. 8 B. Moore, 59; Morris v. Stacey, Holt, N. P. C. 153; Boehm v. Campbell, 3 B. Moore, 15. (b) Shortrede v. Cheek, 1 Ad. & Ell. 57. (c) Newbury v. Armstrong, 6 Bingh. 201; Ryde v. Curtis, 8 D. & R. 62; Lysaght v. Walker, 5 Bligh, N. S. 1. See per Best, C. J., Morley v. Boothby, 3 Bingh. 113; "It has never been said that there must be a consideration directly between the persons giving and receiving the guaranty. It is enough if the person, for whom the guarantee becomes surety, receives a benefit, or the person, to whom the guaranty is given, suffers inconveni ation. Consider- ficient, and the guaranty binds the defendant. Although the consideration may not appear on the face of the guaranty itself, it is sufficient if it can be collected from letters written by the plaintiff, and which can be distinctly connected with the guaranty (d). General rule of con SECTION II. Of the Construction of the Guaranty. The construction of a guaranty may be considered in respect of: I. Compliance with the terms of the guaranty: II. When the guaranty is to be deemed continuing: III. What will be taken to discharge the liability of the surety. I. The general rule in the construction of a struction. guaranty is, that the words are to be construed as strongly against the party entering into the undertaking, as the sense will admit of (e). The claim, however, against the surety is strictissimi juris, and ence, as an inducement to the surety to become guarantee for the principal debtor." (d) Coe v. Duffield, 7 B. Moore, 252; Redhead v. Cator, 1 Stark. N. P. C. 14. See Huddlestone v. Briscoe, 11 Ves. Jun. 583. And see Stead v. Liddard, 1 Bingh. 196; Dobell v. Hutchinson, 5 Nev. & Man. 251. Supra. (e) Per Curiam, Mason v. Pritchard, 12 East, 228. But in Bardwell v. Lydall, 7 Bingh. 489, the guaranty was construed favourably for the surety in computing the amount to which he was liable. it is incumbent on the plaintiff to show that the Terms must terms have been strictly complied with (ƒ). be strictly complied with. Thus, where the guaranty was with a condition Express that eighteen months credit should be given, the condition. plaintiff, having given twelve only, would not be at liberty, after the expiration of six months more, to call upon the defendant on his guaranty (g). So, where the defendant guaranteed the payment of a bill of exchange of a specified amount, and a bill for a larger sum was given, he was held not to be liable even to the extent stipulated (h). Where the guaranty purported to be in the event of the bankruptcy of the third party, it was held, that the plaintiff was bound to show that a commission had been actually sued out, and that it was not sufficient merely to prove that the party had committed a secret act of bankruptcy (i). condition. Every guaranty is on the implied condition that Implied the plaintiff will assent to it; therefore the plaintiff Plaintif must prove that he has given the defendant notice of (f) Per Lord Ellenborough, C. J., 1 Stark. N. P. C. 193; per Buller, J., 2 T. R. 370; per Dallas, C. J., 2 B. Moore, 152. See Whitcher v. Hall, 8 D. & R. 22; S. C. 5 B. & C. 69. It is sufficient however if the plaintiff has taken reasonable precaution to comply, as far as lay in his power, with the conditions of the guaranty. See Ogden v. Aspinall, 7 D. & R. 637. (g) Bacon v. Chesney, 1 Stark. N. P. C. 192; Holl v. Hadley, 5 Bingh. 54. (h) Philips v. Astling, 2 Taunt. 206. (i) Bulkely v. Lord, 2 Stark. N. P. C. 406. The Court afterwards refused a rule to set aside the nonsuit. C C must prove notice assent. Proof of assent. Retrospective effect. When the guaranty ing or not. of his acceptance of the terms offered: otherwise it is a bare proposal by one party, which is not binding, and may be retracted, at any time before acceptance by the other. Thus, a guaranty in these words, "I understand that A. and Co. have given you an order for rigging, &c.; I have no objection to guarantee you against any loss from giving them this credit,"-was held not to be conclusive without proof of notice of assent given by the plaintiff (k). A guaranty will not (unless actually so expressed) be deemed to have a retrospective effect (). Therefore, a guaranty for the payment of the price of goods furnished to a third party, would not extend to goods previously supplied: if however the delivery was subsequent, though the contract may have been anterior, to the guaranty, the plaintiff may avail himself of the undertaking (m). II. It often becomes a material question, wheis continu- ther the guaranty is to be deemed continuing or non-continuing; or, in other words, whether it is applicable to an indefinite period of time, and an indefinite number of transactions, and determinable only by notice,—or whether it is confined to (k) M'Iver v. Richardson, 1 M. & S. 557; S. P. Mozley v. Tinkler, 1 Cr. Mees. & R. 692; Gaunt v. Hill, 1 Stark. N. P. C. 10; Symmons v. Want, 2 Stark. N. P. C. 370. Supra. (1) See Glyn v. Hertel, 2 B. Moore, 134, 152. |