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Rap. Wit., § 272. The rule we have stated is a general one, for the statute makes no exceptions. It is a rule that may be invoked by the representatives of the deceased patient. It must therefore apply to this case, unless the court legislates, and by legislation creates an exception. That we cannot do. The case before us is within the rule, and must be decided as the rule requires. The question came before the court in Renihan v. Dennin, 103 N. Y. 573; S. C., 57 Am. Rep. 770, as it comes before us, in an action to set aside a will, and it was held, all judges concurring, that the testimony was incompetent." See Groll v. Tower, 85 Mo. 249; S. C., 55 Am. Rep. 358.

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in Green v. Cresswell, supra, ‘if there had been no decisions on the subject it would appear impossible to make a reasonable doubt that this is answering for the default of another.' But it is said by some of the text writers, and such is the position taken by the defendant in error in this case, that whenever the promisor is a surety also, and therefore answerable for the default of the principal independently of his promise, the law is otherwise; and that any engagement which he may make that it shall be paid, or that the surety shall not be compelled to pay it, must be regarded as contracted on his own behalf, and not for the default of the principal. But we do not think that there is any real foundation for any such distinction, and certainly none such is sanctioned by the leading cases of Thomas v. Cook, 8 Barn. & C. 728, and Green v. Cresswell, 10 Ad. & E. 453; although in the last mentioned case it was brought to the attention of the court by counsel in the course of the argument that in Thomas v. Cook the defendant was liable upon the bond, independently of the promise upon which he was sued. The fact is, that while in the large majority of the cases where the promisor was also a surety, the promise has been held not to be within the statute, that circumstance does not appear to have been relied upon as the ground of decision. The true question to be determined in every such case is, as announced by the Supreme Court of Missouri in Bissig v. Britton, supra, whether the promise amounts to an original undertaking and is supported by a direct consideration, or is collateral in its character and depends upon some act to be admitted or performed by some third person. Draughan v. Bunting, 9 Ired. 10; 1 Wms. Saund. 211c. Applying this test to the case in hand, it seems to us clear that the promise of indemnity made by the defendant is within the statute and not capable of enforcement." Compare May v. Williams, 61 Miss. 125; S. C., 48 Am. Rep. 80. See Dow v. Swett, 134 Mass. 140; S. C., 45 Am. Rep. 410; Anderson v. Spence, 72 Ind. 315; S. C., 37 Am. Rep. 162; Bissig v. Britton, 59 Mo. 204; S. C., 21 Am. Rep. 379; Nugent v. Wolfe, 111 Penn. St. 471; S. C., 56 Am. Rep. 291. In this State the law is settled contrary to the principal case, in Barry v. Bancour, 12 N. Y. 463.

In Wolverton v. Davis, Virginia Supreme Court of Appeals, May 24, 1888, it was held that a promise by one of the sureties on an official bond to indemnify a co-surety, who became such at the request of the promisor, comes within the provision of the statute of frauds which requires a promise to answer for the debt, etc., of another to be in writ ing. The court said: "A more difficult question for judicial decision, if the mere weight of authority be looked at, can scarcely be imagined; for in England, even at this day, and notwithstanding the decision of Vice-Chancellor Malins in Wildes v. Dudlow, 23 W. Rep. 435, the authorities cannot be reconciled, and in America the authorities would seem to be about evenly balanced, there being the decision of eight States (see 3 South. Law Rev. 444) at one end of the scale to weigh against eight at the other.' And see also on this subject Throop Verb. Agr. 459 et seq., where all the cases are reviewed. It is believed however that no matter what may be the law, where the promisor is also a surety a point to be presently discussed the result of the authorities as a whole is as stated by the learned editor of Smith's Leading Cases in his notes to Birkmyr v. Darnell, volume 1, page 326, that a promise by a stranger to the debt to indemnify a surety is prima facie within the statute, because the principal is bound by an implied obligation to do that which the promisor agrees to do expressly, and the promise is therefore really to answer for default of the principal. 1 Smith Lead. Cas. (8th Am. ed.), pt. 1, 538; Green v. Cresswell, 10 Ad. & E. 453; Cripps v. Hartnoll, 31 L. J., Q. B., 150; Kingsley v. Balcome, 4 Barb. 131; Baker v. Dillman, 12 Abb. Pr. 313; Easter v. White, 12 Ohio St. 219; Kelsey v. Hibbs, 13 id. 340; Brown v. Adams, 1 Stew. 51; Brush v. Carpenter, 6 Ind. 78; Draug-ligently permitting such jail to become and remain han v. Bunting, 9 Ired. 10; Simpson v. Nance, 1 Speer, 4; Bissig v. Britton, 59 Mo. 204. And certainly, upon the reason of the thing, this must be so, for not only does such a case fall within the mischief intended to be remedied by the statute, but it is within the words also. The promise, in substance and effect, is this: If you will become bound as surety for this sheriff, I will save you harmless from the consequences of your suretyship.'| And to use the vigorous language of Lord Denman

In Pfeferle v. Lyon County, Kansas Supreme Court, June 9, 1888, it was held that a county is not liable to the inmates of its county jail for neg

in such a bad condition that the inmates become sick. The court said: "The plaintiff claims that a county is liable in such a case, and cites the following cases as authority therefor: Bigelow v. Inhabitants of Randolph, 14 Gray, 541; Aldrich v. Tripp, 11 R. I. 141; S. C., 23 Am. Rep. 434: Moulton v. Inhabitants of Scarborough, 71 Me. 267; S. C., 36 Am. Rep. 308; Hannon v. County of St. Louis, 62 Mo. 313. We do not think that any of these cases go to the extent that is claimed for them by the

450; S. C., 43 Am. Rep. 120. See also Manwaring v. Jenison (Mich.), 27 N. W. Rep. 899.

plaintiff; but even if they did we would hardly follow them, for the overwhelming current of authority would still be against any such doctrine. Of course where the statutes provide that a county shall be liable, it will be liable; and also for the purposes of this case we shall assume that when-innocent purchaser or mortgagee, is in a hopeless state

ever a county is authorized to engage in business of any kind similar to that which may be carried on by private individuals or private corporations, the county will be liable to the same extent and in the same manner as such private individuals or private corporations would be. But none of these cases is the present case. It is true that counties are, to a limited extent, corporations; but they are not private corporations, and they are not, in a strict sense, municipal corporations. They are usually denominated quasi corporations, and their principal functions are governmental and political, and not private or of a strictly corporate character. Counties are principally mere political subdivisions of the Statemere instrumentalities of the State government, brought into existence merely for the purpose of aiding and assisting the State in promoting justice, in preserving peace, quiet and good order in the State, and of promoting the welfare and happiness of the citizens thereof; and these objects are the ones which counties are designed to subserve when they are authorized to build, own and keep county jails. The objects do not partake at all of a private character, and they are not engaged in as business transactions, nor for the purpose of increasing the wealth of the county as an organization. No decision can be found, so far as we are informed, where any county has ever been held to be liable for any negligence in keeping or maintaining a county jail." See Stuart v. Supervisors, 83 Ill. 341; S. C., 25 Am. Rep. 397.

RIGHT OF INNOCENT PURCHASER OF LAND TO APPARENT BUT NOT REAL FIXTURES.

I.

PERSONAL property is frequently attached to real

estate in such a manner as would make it a portion of the realty in the absence of any agreement to the contrary, and yet by agreement between the owner of the real property and a third person the chattel retains its original character. As between the parties to the transaction there can be no difficulty in determining their rights. But where the rights of innocent purchasers or mortgagees of the real property are concerned, the adjudications establish any thing but a harmonious system. Unless however there is some kind of notice, actual or constructive, of the arrangement, under which the personal property, in spite of its annexation, remains a mere chattel, the cases seem to agree that the innocent purchaser is protected. He has a right to assume that all that appears to be a portion of the real property which he is purchasing is in fact a part of it. Case Manuf. Co. v. Graves (Ohio), 13 N. E. Rep. 493; Fortman v. Goepper, 14 Ohio St. 558; Brennan v. Whitaker, 15 id. 446; Ridgeway Stove Co. v. Way (Mass.), 6 N. E. Rep. 714; Southbridge Sav. Bk. v. Exeter Machine Works, 127 Mass. 542; Stillman v. Flenniken, 58 Iowa,

Whether the constructive notice given by the filing of a chattel mortgage on the property which retains its original character of personalty under the agreement, will suffice to defeat the claim of an otherwise

of confusion so far as the authorities are concerned. In Ohio the filing of the chattel mortgage will not protect the mortgagee against a purchaser or incumbrancer of the realty without actual notice, In Case Manuf. Co. v. Graves, 13 N. E. Rep. 493, the Mansfield Machine Works furnished one Patton with motive power for his mill. The property furnished consisted of an engine and boiler with the usual attachments. The agreement between the parties provided that the title should not pass till the property had been paid for. After the annexation had been made, Patton executed a chattel mortgage upon the property to secure the purchase price, and this mortgage was duly filed in the proper office. Subsequently two mortgages upon the real estate were executed by Patton and one Collins, to whom he had conveyed an undivided interest in the real property. These mortgages were taken for value in good faith, and without any other notice of the chattel mortgage than that afforded

by the filing thereof. The court held that the real estate mortgages were liens on the boiler, engine, etc., prior to the lien of the chattel mortgage. The court, after referring to a prior decision in Brennan v. Whitaker, say: "The fact that the machine works took a chattel mortgage upon the engine and boiler in addition to the stipulation as to the title does not seem to help its case. It caused the property to be annexed to the realty in such a manner that but for the agreement it would have become a part of it. The subsequent mortgagees of the realty had no notice of the agreement or of the chattel mortgage. And to use the language of White, J., in the case above cited, it then devolved upon the vendor, if it sought to change the legal character of the property and create incumbrances upon it, either to pursue the mode prescribed by law for incumbering the kind of estate to which it appeared to the world to belong, and for giving notice of such incumbrance, or otherwise take the risk of its loss in case it should be sold and couveyed as a part of the real estate to a purchaser without notice.'" And the court concluded by stating that to give effect to the filing of the chattel mortgage, as notice would be against the policy of the registration laws of the State.

In the case of Brennan v. Whitaker, 15 Ohio St. 446, the same question arose under the same circumstances. The court said: "The right given to the plaintiffs by the mortgage to enter upon the premises and sever the property, would doubtless have been effectual as between the parties. But the defendants were purchasers without notice of this agreement. The filing of chattel mortgages is made constructive notice only of incumbrances upon goods and chattels. The defendants purchased and took a conveyance of real estate, of which the property now in question was, in law, a part; and in our opinion it devolved upon the plaintiffs who sought to change the legal character of the property and create incumbrances upon it, either to pursue the mode prescribed by law for incumbering the kind of estate to which it appeared to the world to belong and for giving notice of such incumbrance; or otherwise take the risk of its loss in case it should be sold and conveyed as part of the real estate to a purchaser without notice."

These cases seem to stand alone. An examination of the decisions which appear to hold the same, are all cases in which the question of the effect of the filing of a chattel mortgage as constructive notice was not involved. Reference will be made to them hereafter.

Holding that such filing is equivalent to actual notice are Sword v. Low (Ill.), 13 N. E. Rep. 826; Ford v. Cobb, 20 N. Y. 344; Eaves v. Estes, 10 Kans. 314; Lowden v. Craig, 26 Iowa, 162; Godard v. Gould, 14 Barb. 662. See Crippen v. Morrison, 13 Mich. 23; Sheldon v. Edwards, 35 N. Y. 279.

In Sword v. Low an engine and boiler were so attached to the realty that but for the understanding to the contrary, they would have constituted a part of it. A chattel mortgage was executed upon the property to secure the purchase price, and this mortgage was duly filed. Sword, the subsequent purchaser of the land to which the property had been attached, claimed the property attached as part of the realty on the ground that he was a bona fide purchaser without notice, and had a right to assume that every thing which seemed to be a part of the real estate was in fact a part thereof, and that the filing of the chattel mortgage was no notice to him at all. The court sustained the lien of the chattel mortgage as against the purchaser, saying: "The courts are not harmonious in their holdings in respect to whether the rule that the parties may retain the personal character of chattels annexed to the realty by express agreement, would obtain as against a subsequent grantee or incumbrancer of the freehold to which the chattels are affixed without notice of such agreement of the parties. Without further examination of the authorities, it will be seen, from what has been already said, that many cases, and as said by Mr. Tyler in his work on Fixtures, the majority of the cases, perhaps do not regard the want of such notice as controlling in cases of this sort. The later authorities have relaxed the rule, and have done so in consideration of the public convenience and in the interest of trade and commerce. And while it may be objected that under this ruling the examination of the title to realty will necessarily involve the examination of the chattel mortgage record to determine whether articles, apparently attached to the soil as permanent fixtures, are subject to liens as personalty, we can see no hardship in holding that as to articles which necessarily retain their individual characteristics after being annexed to the soil, and which may or may not be fixtures, and which it is apparent may be removed without material injury to the freehold, that the purchaser or incumbrancer of the realty is required to take notice of what is apparent upon the public record. It will not be questioned that he would be required to take notice of judgment liens, although not apparent upon the land record; so also of tax liens, although the same are not apparent upon the land record nor kept in the office of the recorder of deeds. Here the character of the property was such that before it could be put to use it must necessarily be placed upon and so attached to the land as that it might and would, if so intended, become a fixture. Here the parties had done every thing in their power by a compliance with the statutes of the State to preserve the lien. If the lien may not thus be preserved, no one could buy on time property which may become a fixture and secure the purchase money by a chattel mortgage thereon, for so soon as it is put into use the lien of the mortgage would be extinguished. We are of opinion in this case that the chattel character of the property was preserved, and that by virtue of the real estate mortgage of September 8, 1881, no lien was created upon the engine and boiler in question as against the chattel mortgage

thereon."

The case of Lowden v. Craig goes to the same extent so far as the language of the court is concerned, but the person against whom the filing of the chattel mortgage was held good was not a purchaser without notice, but had obtained a mechanics' lien on the property without actual notice of the chattel mort

gage. Whether such an incumbrancer could be held to occupy the same position as bona fide purchaser for value, in case he furnished the materials and performed the work, relying on the belief induced by the annexation of the chattel to the land, that it was a part of the land, was not decided. The court, speaking of the filing of the chattel mortgage, said that "the notice imparted by the due and proper record of such an instrument, though called a constructive notice, is just as effectual for the protection of the rights of the parties as an actual notice by the word of mouth or otherwise. Any other construction of our registry laws would effectually nullify them."

In Eaves v. Estes the same question arose between the chattel mortgagee and the purchaser of the realty without notice, and was decided in the same way. The property covered by the chattel mortgage was an engine put into a mill and used as a motive power. It was so attached to the realty that it would, in the absence of the agreement to the contrary, have been a fixture. The court said: "But when we consider the purpose of the parties as evinced by the mortgage to make the engine retain the character of a chattel regardless of its attachment to the mill, and as the mortgage violated no principle of law, wrought no injury to the rights of others, and was in the interest of trade, we have no doubt that the engine continued to be personal property."

In New York we find the same rule supported by all the cases. In fact some of them, as we shall see, go further. In Ford v. Cobb salt kettles were bought and mortgaged by the purchaser as personalty. It was understood between the parties that they were to be affixed to the realty in the manner in which they were subsequently annexed to it. The court held that but for the chattel mortgage the salt kettles would have become real property by reason of the manner in which they were attached to the realty. This chattel mortgago was duly filed, and the lien thereby created was held to be good as against au innocent purchaser of the realty who had no notice of the mortgage other than that which the filing gave him. The court decided that he had constructive notice of the lien and therefore of the arrangement that the kettles should remain personalty, saying: "Iconclude therefore that the defendants were entitled as against O). W. Titus to detach the kettles from the arch and take them away, after default had been made in the payment of the purchase price, and the only remaining question is whether the plaintiff is in any better position than that which Titus occupied. The kettles were originally personal property. The agreement contained in the chattel mortgage preserved their character as personalty, which would otherwise have been lost by their annexation. They therefore continued to be personal chattels notwithstanding the annexation, and the plaintiffs, by filing the mortgage, observed all the formalities required by law to preserve their lien upon that kind of property. The title to the kettles did not therefore pass by the conveyances to the plaintiff. Those conveyances embraced only the interest which the grantors had a right to dispose of, including any advantage which would accrue to the grantee by the laches of the former owners in giving the constructive notice which the law required to be given; but I do not see that any such laches occurred. This seems to me the true state of the case on principle." See Burrill v. Wilcox Lumber Co. (Mich.), 32 N. W. Rep. 824.

The New York cases in fact go further and hold that the question of notice is not involved. If the thing as between the parties was a chattel, the grantee or mortgagee takes subject to the rights of others in the chattel, although it is apparently a part of the realty. Godard v. Gould, 14 Barb. 662; Mott v. Palmer,

1 N. Y. 564. Both of these cases are cited with apparent approval by the court in Ford v. Cobb. In Godard v. Gould the plaintiff had sold certain machinery to be put up in a paper mill, reserving the title until the machinery should be paid for. The purchaser placed it in the mill in such a manner that it would have been a part of the realty but for the agreement that the title should not pass. The court held that an innocent purchaser, without notice of the mill property, whose deed purported to convey all the machinery, took subject to the rights of the vendor of the machinery, and the court sustained an action for the conversion of such machinery brought by such vendor against the purchaser of the realty, who refused to allow the former to take away the machinery, the purchase price thereof not having been paid. To same effect is Dame v. Dame, 38 N. H. 429; S. C., 75 Am. Dec. 195: Russell v. Richards, 1 Fairf. 429. See Russell v. Richards, 10 Me. 429; 11 id. 371; Hillborne v. Brown, 12 id. 162; Tapley v. Smith, 18 id. 12; Bewick v. Fletcher, 41 Mich. 625; S. C., 32 Am. Rep. 170. The language in Tift v. Horton, 53 N. Y. 377, is broad enough to lead to the same conclusion. "Had the mortgagees taken their mortgage upon the lands after the boilers and engine had been placed thereon under this agreement, they would have had no right to prevent the removal of them by the plaintiffs, on the happening of the contingencies contemplated by it. The rights of a subsequent mortgagee are no greater than those of a subsequent grantee, and he, it is held, cannot claim the chattels thus annexed, and must seek his remedy for their removal by virtue of such an agreement, upon the covenants in his conveyance of the land."

Maine seems inclined to depart from the doctrine laid down in Russell v. Richards and subsequent cases. In Fifield v. Me. Cent. R. R. Co., 62 Me. 80, the court say: The case of Russell v. Richards does not accord with the adjudged cases in Massachusetts and New Hampshire in this respect, and the general course of decision is against it."

Some of the authorities hold that the chattel b comes a fixture even as to one who is not a purchaser for value without notice. It has been decided that a prior mortgagee of the land, who did not lend his money on the strength of the chattel being a fixture, but who took his mortgage before the chattel was attached to the land, can claim the same as against the person who sold the chattel with the understanding that he was to retain the title to or a lien upon the same for the purchase price. Burk v. Hollis, 98 Mass. 55; Copeland v. Richardson, 6 Gray, 536; Frankland v. Moulton, 5 Wis. 1; Hunt v. Bay State Iron Co., 97 Mass. 299. The court in Brennan v. Whitaker, expressly declined to decide whether these cases were sound, and the tenor of the opinion is certainly against them. Unless they are founded upon the prin ciple that the chattels were so annexed to the land that they could not be removed without material injury either to the land or to the chattel, they have nothing to stand upon. The contrary was held in Tift v. Horton; Miller v. Wilson (Iowa), 33 N. W. Rep. 128, and in Tibbets v. Moore, 23 Cal. 208; First Nat. Bk. v. Elmore (Iowa), 3 N. W. Rep. 547. If the chattel becomes a fixture in spite of the agreement to the contrary, so that a prior mortgagee of the land can claim a superior lien on it, then the agreement is not effectual to preserve the original character of the property as personalty, even as to the owner of the land, who has so expressly agreed. There is no escape from this conclusion. The prior mortgagee can claim no greater right than the owner, as he has not been misled to his prejudice, but on the contrary will receive additional security without his request or intervention, and at the expense of the former owner of the chattel

who put it or suffered it to be placed upon the land, believing that he had fully protected himself by his agreement with the owner of the land. Of course the annexation must be such that it is possible for the property to be regarded as a chattel. If it is so attached to the land that it is necessarily a part of the realty, no agreement can make it personalty. The true test, there being an intention that it should retain its original character, is whether it can be removed without material injury to itself and to the freehold. The doctrine is well stated in Sword v. Low, 13 N. E. Rep. 826: "There seems to be a great unanimity in the authorities that things personal in their nature may retain their character of personalty by the express agreement of the parties, although attached to the realty in snch manner as that, without such agreement they would lose that character, provided they are so attached that they may be removed without material injury of the article itself or of the freehold. It is not held that parties may by contract make property real or personal at will, but that when an article personal in its nature is so attached to the realty that it can be removed without material injury to it or to the realty, the intention with which it is attached will govern; and if there is an express agreement that it shall remain personal property, or if from the circumstances attending it is evident or may be presumed that such was the intention of the parties, it will be held to have retained its personal char. acter." What is evidence of this intention? The concluding portion of the opinion just quoted expresses what is undoubtedly the rule, that no express understanding is necessary to preserve the original character of the chattel. The question is one of intention. Taking a chattel mortgage on the property has been held to be sufficient evidence of an intention to have the property remain personalty. Ford v. Cobb, 20 N. Y. 344; Eaves v. Estes, 10 Kans. 314; Sword v. Low, 13 N. E. Rep. 826. In this last case the court seems to have considered this as sound law, although it stated that there was some variance among the authorities on the point. The writer fails to find any such variance, and on principle these decisions are unquestionably sound. Whether the mortgage is executed before or after the chattel has been affixed to the realty can make no difference, provided it was the intention of the parties before it was so annexed that it should remain personal property.

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erts one thousand dollars, with interest at eight per cent per annum. Value received. Lyman D. Follett." And defendant signed an indorsement on the back thereof as follows: "For value received, I hereby guaranty the payment of the within note. L. E. Hawkins." On the delivery of this note to the plaintiff, she paid Follett $1,000. January 8, 1885, seven days before this note became due, Follett paid one year's interest; and neither at that time nor at the maturity of the note, was the same presented to Fol lett or defendant for payment. No notice of payment was given defendant then or at any time prior to June 8, 1887. January 15, 1886, Follett paid the interest for the next year, and January 17, 1887, for the year following.

About June 8, 1887, the note being then two years and five months overdue, it was first presented to defendant, and payment demanded and refused. August 13 this suit was brought. On the trial, plaintiff, having proved the note and guaranty, and its nonpayment, rested. Defendant then sought to make his defense, as pleaded, and offered to show (1) that he was an accommodation guarantor, without consideration or security; (2) that at or about the maturity of the note, he inquired of the maker of the note if it was paid, and was told it was; (3) that neither at the maturity of the note, nor at any subsequent time prior to June 8, 1887, was any notice of the non-payment of this note given to defendant, nor any demand made on him for the payment thereof; (4) that at the maturity of this note, and for some considerable time thereafter-at least a year-Follett, the maker of the note, was solvent, and had property out of which defendant could have procured him to pay the note or obtained security; (5) that when defendant, on June 8, 1887, learned of the non-payment of this note, the maker was insolvent, out of the jurisdiction, and that he could then obtain no security or payment. The court directed a general verdict for plaintiff on all the counts of the declaration.

Judgment being entered on the verdict in favor of plaintiff for the amount of the note, and interest, defendant brings the case into this court by writ of error. The declaration contains three counts. The first alleges the guaranty, demand of the maker at maturity, non-payment, and notice of said demand and nonpayment by defendant at maturity. The second alleges the guaranty, the refusal by maker to pay at maturity, and notice to defendant, at maturity, of maker's refusal. The third is the common counts in assumpsit, with copy of note annexed, and an alleged indorsement on back of L. E. Hawkins, without any guaranty over it. The plea is the general issue, with notice of the defense of release by plaintiff, failure to give notice of non-payment to defendant, and the consequent damage and loss to him thereby.

It is claimed that the court erred in receiving the note and guaranty in evidence under the third count in plaintiff's declaration, for the reason that the note and guaranty offered were not the note and guaranty set forth in that count; that the contract set out in plaintiff's third count was that defendant had indorsed his name in blank on the back of the note, not payable to his order; and that this would make him a maker of the note, and liable as such, while the note offered had a guaranty of payment indorsed thereon. Defendant claimed that this was a variance, and that the court should have excluded the guaranty under the third count, and confined the verdict to a recovery under the first two counts. As we view the case however this objection has no force. The plaintiff being entitled to recover under the first and second counts of the declaration, the defendant was not prejudiced in the course taken by the court in not withdrawing all consideration of the case under the third count. The

declaration was sufficient in the first two counts to allow a recovery thereunder.

The chief error complained of is the exclusion of the entire defense, and the direction of a verdict for plaintiff. Ou the trial the plaintiff proved by a witness that the application for the loan, the loaning of the money, the giving of the note and guaranty, and after reading the note and guarantyin evidence, rested.

The defendant was then called and sworn as a witness in his own behalf, and was asked by his counsel: "Question. When that note became due, in January, 1885-January 15-was any notice given you of the fact that it remained unpaid?" To this question counsel for plaintiff objected, that the same was irrelevant and immaterial, that the defendant was not an indorser nor guarantor of collection, but of payment of the note. Counsel for the defendant then offered to show by the witness that he had no notice of the non-payment of the note prior to June 8, 1887; that he was an accommodation guarantor without security; that at or near the maturity of the note he inquired of the maker, and was informed that it was paid; that at the time the maker of the note was solvent, and for some considerable time thereafter-probably a year-and that the defendant could, if he had any knowledge of its non-payment, have secured himself, or procured the latter to pay it; that when the defendant learned of the non-payment of the note the maker was insolveut, and out of the State, and no security could have been obtained by the defendant. The counsel then saying "that this of course is the line of defense marked out by the notice in the pleadings. It is all covered by my brother's argument, and if we had no right to show that defense, then of course there remained nothing but for the court to direct a verdict for the amount of the note, and interest." The court sustained the objection, and directed a verdict for plaintiff. In considering this case the defendant's offer to prove this state of facts must be taken as true. Insurance Co. v. Manufacturing Co., 31 Mich. 356. Uuder this offer by the defendant the issue is made, is a person, not being a party to a promissory note, who at its date and before delivery, and for the purpose of having a loan made upon the strength of his guaranty, guarantees the payment of such note, liable thereon in case the note is not paid at maturity, without notice of non-payment having been given to him by the holder of the maturity of the note, or within a reasonable time thereafter, or that in case notice is not given and no proceedings taken to collect the note from the maker, and the maker of the note at the maturity thereof was solvent, and subsequently, and before suit is brought on the guaranty, becomes insolvent, can such guarantor, when such action is brought against him, set up such insolvency as a defense? The defense being based on plaintiff's laches in not giving notice to defendant of the non-payment of the note at maturity, and the consequent damage to defendant thereby, the correctness of the court's ruling depends on whether or not there rested on the plaintiff the duty to give such notice under any circumstances. The defendant claims that his liability existed only on the happening of a contingency and the performance of a condition; that whether or not that contingency happened, or condition was performed, was matter peculiarly within the knowledge of the plaintiff, and not within his own; and that if plaintiff intended to assert the performance of the condition, or the happening of the contingency, whereby alone defendant was to become liable, it was her duty to do so within a reasonable time, and in any event, before the maker of the note became insolvent and a fugitive; that her neglect to do so, and the damage to him thereby, has released him from the obligation of his conditional contract. The position however of a guarantor of pay.

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