
    Joseph Bickford vs. David N. Gibbs & others.
    In an action on the guaranty of a promissory note, tried in the court of common pleas, and brought before this court on exceptions, it cannot be objected that the declaration contains only the money counts, unless that objection was taken at the trial.
    Where a guaranty is made on a promissory note before it is delivered by the maker to the payee, no proof of a distinct consideration is necessary in order to charge the guarantor; and in an action against the latter, when the guaranty is without date, and there is no direct proof of the time when it was made, it may be left to the jury to find that it was simultaneous with the note itself The guarantor of a promissory note, who in his guaranty expressly waives demand and notice, is liable to an action thereon without previous demand or notice.
    This was an action of assumpsit on the following note: —
    “ July 26th, 1845. $100. For value received, I promise to pay on demand to Joseph Bickford, or order, one hundred dollars with interest. George May.”
    On the back of the note was the following agre jment, signed by the defendants: “ We guaranty the payment of the within, waiving demand and notice.”
    The writ was dated the 23d of May, 1849; and contained the money counts only. At the trial in the court of common pleas, before Byington, J., the plaintiff put in evidence the foregoing note and agreement, and there rested his case. And the presiding judge submitted the case to the jury, with directions, if they found for the plaintiff, to cast interest on the note. The jury returned a verdict for the plaintiff; and the defendants alleged exceptions to the instructions of the judge.
    This case was argued and decided at the last October term,
    
      R. B. Caverly, for the defendants.
    The defendants were guarantors, and therefore bound only collaterally. Oxford Bank v. Haynes, 8 Pick. 423, 428. They are sued at. makers; whereas they should have been declared against specially. 8 Pick. 428; Mines v. Sculthorpe, 2 Campb. 215; Jackson v. Hudson, 2 Campb. 448; Mitchell v. Dall, 2 Har. & Gill, 159; Bailey v. Freeman, 4 Johns. 280; Greene v. Dodge, 2 Hamm. 430; Sage v. Wilcox, 6 Conn. 81. The plaintiff is not entitled to recover without proof that the guaranty was made at the time of the execution of the note; and that the defendants intended to be held as makers; Robinson v. Abell, 17 Ohio, 36; Champion v. Griffith, 13 Ohio, 228 ; and that there was a consideration for the guaranty. Packard v. Richardson, 17 Mass. 144; Tenney v. Prince, 4 Pick. 387, and 7 Pick. 242. By the legal effect of this guaranty, the defendants are only bound in case the maker is insolvent. Sage v. Wilcox, Mitchell v. Dall, and Oxford Bank v. Haynes, before cited; Wylie v. Lewis, 7 Conn. 303. The waiver of demand and notice only dispensed with proof of actual demand and notice; 2 Stark. Ev. 274; and not with proof of the maker’s insolvency.
    
      B. F. Butler, for the plaintiff.
   Shaw, C. J.

Assumpsit to recover the amount oí a note given by one May, and guaranteed by the defendants.

An exception is now taken, that this guaranty should have been specially declared on. No such exception was taken at the trial; had it been, an amendment might have been made,' the objection comes too late.

The exception is also taken, that as the guaranty was a contract collateral to the note, a distinct consideration should be proved. There would be force in this objection, had the guaranty been made after the note had been made, delivered and received as a complete contract. But when the guaranty is made on the note before its delivery by the maker to the promisee, it must be deemed to be done for the benefit of the maker, to add to the strength of the note and to induce the promisee to take it and advance his money on it; and no other consideration is necessary than the credit thus given to the maker. And the guaranty being without date, and there being no direct proof of any time at which it was made, we think the court were right in leaving it to the jury, to find that the guaranty was simultaneous with the note itself. Benthall v. Judkins, 13 Met. 265.

Supposing, then, that the defendants were regularly bound as guarantors, and thereby assumed an obligation somewhat differing from that of either sureties or indorsers, what was that obligation? This question has been much discussed, especially since the leading case of Oxford Bank v. Haynes, 8 Pick. 423. The principle to be deduced from that case, and the Pennsylvania case of Gibbs v. Cannon, 9 S. & R. 202, there cited with approbation and relied on, is this: That in order to maintain an action against a guarantor, a demand of payment must be made in a reasonable time of the principal, and notice of non-payment given to the guarantor; and if in consequence of want of such notice, the guarantor suffers loss, he is exonerated. Dole v. Young, 24 Pick. 250. The same prompt demand and notice, as are required to charge an indorser, are not necessary; and if the circumstances of parties remain the same, and the guarantor suffers no loss by delay, demand and notice at any time before action brought, will be sufficient. Babcock v. Bryant, 12 Pick. 133. Such being the obligation of the defendants, as guarantors, they would not be liable by the general law, without proof of demand and notice. But they have expressly agreed to waive demand and notice, and conventio legem vincit. The effect of that waiver is, to put the plaintiff in the same sitúation as if he had proved that he seasonably demanded the money of the promisor, who did not pay it, and 'gave reasonable notice thereof to the defendants. In the absence of all proof on the part of the defendants, that, they have suffered any loss by the laches of the plaintiff, the court are of opinion that this proof would entitle the plaintiff to recover.

Exceptions overruled  