
    Boyce & Henry v. D. & J. Ewart.
    Action of assumpsit on a letter of credit or guaranty, in the following words : “ Charleston, 12th October, 1825. Messrs. Boyce & Henry — Gentle, men, — Our brother, Samuel Ewart, is about to commence business on his own account in Columbia. To assist him in which, he will stand in need of your aid and indulgence, which, if you render him, (in casé of his failure or delinquency,) we will indemnify you to the amount of four thousand dollars; and you will greatly oblige, gentlemen, yours, &o., D. and J. Ewart.” — Held, in the opinion of a majority of the court, not to be a continuing guaranty, for the amount of #4000, which S. Ewart might, at any time in the course of his mercantile dealings with the .plaintiffs, owe them ; but that by its true construction, it could only be regarded as intending to secure the plaintiffs to the amount of #4000, in any aid which they might render S. Ewart, in the commencement of his business as a merchant; and that as soon as S. Ewart, for any dealings had with Boyce & Henry, under the letter of guaranty, paid to the amount of #4000, D. & J. Ewart were absolved from all further responsibility. [O’Neall and Evans, Justices, dissenting.]
    The plaintiffs, Boyce & Henry, had dealings to a large amount with S. Ewart, after the date of the letter of guaranty, down to the 6th of January, 1832, when the plaintiffs closed their account current with S. Ewart, and took his note for the balance due them, say #16,000 — payable one ' day after date. Held, by a majority of the court, that the statute of limitations commenced to operate from the 6th of January, 1832 ; and that four years from that period, the bar of the statute was complete, and that this suit not having been instituted within four years from the closing of the dealings between the plaintiffs and S. Ewart, the plaintiffs were barred from a recovery in this action, if the circumstances of the case would otherwise have admitted it. [O’Neall, J. dissenting.]
    
      Before O’NEALL, J., at Richland, Spring Term, 1838.
    The report of his honor, the presiding judge, which presents all the facts in this case, is as follows: “ This was an action of assumpsit, on the following letter of guaranty, viz: “ Charleston, 12th October, 1825. Messrs. Boyce & Henry — Gentlemen, Our brother, Samuel Ewart, is about to commence business on his own account, in Columbia. To assist him in which, he will stand in need of your aid and indulgence, which if you render him, (in case of his failure or delinquency,) we will indemnify you to the amount of four thous- 
      
      and dollars; and you will greatly oblige, gentlemen, yours — D. & J. Ewart.” Samuel Ewart, under this letter, commenced and carried on business in Columbia, until June, 1833. The defendants were carrying on business as merchants, on the opposite side of the street to the house occupied by Samuel Ewart, and were admitted to be generally acquainted with his course of business. On the 6th of January, 1832, the plaintiffs closed their account current with Samuel Ewart, and took his note for the balance due, (something over $16,000) payable one day after date. During the course of the dealings between them, the plaintiffs had furnished Samuel Ewart with goods and credit to the amount of over $ 100,-000. On the 12th July, 1832, David Ewart wrote to Mr. Boyce, on the subject of the embarrassed condition of Samuel Ewart, advising an assignment to him, for himself and the creditors in the state. ' In that letter, he proposed to take the assignment for the plaintiffs. In it he said, “ most if not all, of the preferred creditors can be paid off in twelve months.” In another part of this letter, he said, “ it is of vast importance this matter should be kept amost profound secret.” The assignment was accordingly taken, by David Ewart, or at least it is in his hand writing. It was, 1st, for the payment of the debt of the plaintiffs; 2nd, a debt to the bank, in which D. & J. Ewart were endorsers: 3rd, a debt to Barrett, in which D. & J. Ewart were sureties, and 4th, a debt to David Ewart. The property assigned was amply sufficient for the payment of the debts preferred. It remained in the possession of Samuel Ewart until the 7th of June, 1833, at which time the goods and property were sold, under a subsequent assignment for other creditors, and soon afterwards Samuel Ewart removed. Proceedings were instituted in equity, by the plaintiffs, against Samuel Ewart and his assigns, for the recovery of the proceeds of the said sale, under the assignment to them. This failed, upon the ground that the subsequent possession by Samuel Ewart rendered the assignment to them fraudulent and void, and the whole of the estate of Samuel Ewart was applied to the payment of his other creditors. Six grounds of defence were taken for the defendants, viz: 1. That the letter of the defendants was not a continuing guaranty. 2. That no notice of the acceptance of the guaranty had been given to the defendants. 3. That no notice of the different advances or delivery of the goods to Samuel Ewart had been given. 4. That the plaintiff had given indulgence to Samuel Ewart, and therefore that the defendants were discharged. 5. That the plaintiffs’ right of action was barred by the statute of limitations. 6. That the assignment to the plaintiffs was payment of the plaintiffs’ debt. I instructed the jury, 1st, that the letter of the defendants was a continuing guaranty. I said to them, that like all other matters of contract, the sense and meaning of the parties, upon a fair construction of the words used must govern. Looking to the letter before us, it was manifest that D. & J. Ewart contemplated aid and indulgence to be afforded and extended to their brother by the plaintiffs, throughout the whole course of his business, subsequently to be carried on. There was nothing which shewed that it was to be confined to the commencement, or limited to a single advance. It was in this respect distinguishable from the case of Sollee and Warley v. Meugy. 1. Bail. 620. There the defendant’s name was to be used only for “ the amount of from $1000 to $1500.” The case before us was more like that of Douglass and others v. Reynolds and others, 3. Pet. 113, in which the letter was in the following words: “ Our friend, C. H. to assist him in business, may require your aid from time to time, either by acceptance or indorsement of his paper, or advances in cash. In order to save you from harm in so doing, we do hereby bind ourselves, severally and jointly, to be responsible to you at any time for a sum not exceeding $8000, should C. H. fail to do so.” The whole court was of opinion that that letter was not a limited, but continuing guaranty; and so I thought this must be regarded. 2. I instructed the jury that notice of acceptance of the guaranty, was necessary to be shewn, in order to charge the defendants. This was however a question of fact, and they might decide it by presumptive as well as positive evidence. That the facts relied upon to make it out were the proximity of the defendants place of business to that in which S. Ewart carried on his: the relationship between them: their general acquaintance with his business: David Ewart’s letter of the 12th of July, 1832, and the assignment of the 20th July to the plaintiffs, written by David Ewart. I told the jury,,that in passing upon these facts, they ought to remember that the burthen was on the plaintiffs to prove the fact of notice, and if they were not perfectly satisfied from the facts referred - to, that the defendants knew of the acceptance of the guaranty by the plaintiffs, they ought to find for the defendants. But if they knew it, then their knowledge would stand in place of “ explicit notice.” 3. I instructed the jury that in the case of a continuing guaranty, notice of advances was not necessary to be given. The case of Douglass and others v. Reynolds and others, 7 Pet. 113, is a direct authority in support of the instruction given. 4. I instructed the jury, that if indulgence be given by a valid contract to the principal, so as to alter the terms of the original contract, the sureties would be discharged. The note here did not discharge the original indebtedness by account, but still the plaintiffs, after its acceptance, could not have sued upon the account until the note was due. I thought, however, that this did not alter or affect the defendants’ liability. It was wholly contingent, and had not then arisen. They had stipulated to be liable for $4000, in the event of the “failure or delinquency of Samuel Ewart:” his insolvency had not then taken place, and hence there was “ no giving day ” to him beyond the time at which they were to be liable. 5. I instructed the jury, that the statute of limitations could not protect the defendants. I said to the jury, that on an ordinary continuing guaranty, I thought the statute would run from its acceptance. But, in the case before us, the plaintiffs had no cause of action against the defendants, according to the terms of the guaranty, until the insolvency of Samuel Ewart, which took place within four years before action brought. 6. I instructed the jury, that the assignment to the plaintiffs would be payment of their debt, or at least it would have the effect to discharge the defendants, unless the defendants had consented to the fact of its secrecy, and the retention of possession by Samuel Ewart. I told the jury, that I thought the letter of David Ewart, of the 12th of July, advising the assignment, and the giving of day for twelve months, and that this matter should be kept a “ most profound secret,” was proof enough to establish consent on the part of the defendants, to the concealment of the assignment and the retention of the possession by Samuel Ewart.”
    The jury found for the plaintiffs. The defendants now moved this court for a new trial, on the following grounds : 1. Because, his honor, the presiding judge, erred in charging the jury as law, that the paper sued on was a continuing guaranty. 2. Because, his honor erred in charging the jury as law, that as'the paper was a continuing guaranty, no notice to the defendants, of advances made by the plaintiffs to Samuel Ewart, was necessary, previous to his insolvency in July, 1832. 3. Because, his honor erred in charging the jury as law, that the defendants were not exonerated from their liability, by reason of any time or indulgence given by plaintiffs to Samuel Ewart, without the consent of defendants. 4. Because, his honor erred in charging the jury as law, that the plaintiffs were not barred by the statute of limitations. 5. Because, his honor erred in charging the jury as law, that the assignment and delivery by Samuel Ewart, of his goods and effects, to the plaintiffs, in payment and satisfaction of their debt against him, formed no bar to their recovery in this case, and constituted no defence to this action. 6. Because, no notice to defendants of plaintiffs’ acceptance of the guaranty was proved, and therefore the verdict of the jury was without sufficient evidence in the case, and contrary to the evidence in this particular. 7. Because, reasonable notice of non-payment by Samuel Ewart was not given to defendants.
   Curia, per Gantt, J.

The action in this case is founded upon a letter of guaranty of the defendants to the plaintiffs, in the following words:

Charleston, 12th October, 1825.
“ Messrs. Boyce & Henry :
“ Gentlemen, — Our brother, Samuel Ewart, is about to commence business on his own account, in Columbia. To assist him in which, he will stand in need of your aid and indulgence, which if you render him, (in case of his failure or delinquency,) we will indemnify you to the amount of four thousand dollars; and you will greatly oblige, gentlemen, yours, &c.
“ D. & J. Ewart.”

The presiding judge reports that Samuel Ewart, under this letter, commenced and carried on business in Columbia, until the month of June, 1833. That on the 6th of January, 1832, the plaintiffs closed their account current with Samuel Ewart, and took his note for the balance, amounting to something more than #16,000, payable one day after date. And that during the course of the dealings between them, the plaintiffs had furnished Samuel Ewart with goods and credit to an amount exceeding #100,000. At the trial of the cause, the counsel for the defendants took the following grounds of defence, viz: 1st, that the letter of the defendants was not a continuing guaranty: 2d, that no notice of the acceptance of the guaranty had been given to the defendants: 3d, that no notice of the different advances or delivery of the goods to Samuel Ewart, had been given: 4th, that the plaintiffs had given indulgence to Samuel Ewart, and therefore that the defendants were discharged: 5th, that the plaintiffs’ right of action was barred by the statute of limitations : 6th, that the assignment to the plaintiffs was payment of their debt.

In the opinion about to be delivered, it will be seen that my attention has been particularly drawn tip.the 1st and 5th grounds; and the view which I have taken of them, will supersede the necessity of saying much, if any thing, on the rest.

The presiding judge, in the charge made to the jury, stated, that in giving construction to matters of contract, “ the sense and meaning of the parties must governand then, in the application of the rule, he went on further to say, “ that the letter of the defendants was a continuing guaranty; and that looking to that letter, it was manifest that D. & J. Ewart contemplated aid and indulgence to be afforded and extended to their brother, by the plaintiffs, throughout the whole course of.his business, subsequently to be carried on, and that there was nothing which showed that it was to be confined to the commencement, or limited to a single advance.” The jury found a verdict in favor of the plaintiffs. The letter of the defendants I have examined with care, and from the rule above referred to, in relation to contracts, and especially commercial ones, I cannot give so extended a construction to the letter of the defendants, nor do I think that it will authorise any other fair conclusion than that it was designed to be strictly limited, and not a continuing guaranty. A philological analysis of the letter, will show this to have been the intention of the defendants. The words £ which,’ twice used in the second sentence of the letter, both refer directly and immediately to the substance of what is contained in the previous sentence, as their antecedent; so that without doing violence to the sense, the letter can only mean, that S. Ewart would require the aid and indulgence of the plaintiffs, in commencing business on his own account as a merchant, and that if Boyce & Henry would afford such aid and indulgence, (evidently meaning in the commencement of his business,) then in case of the failure or delinquency of Samuel Ewart, or in other words, in the event of his not paying them at the time agreed on, they, the defendants, would do so, to the amount of $4000. The language, therefore, of the defendants points to a single transaction, such, an one as would enable Samuel Ewart to set out as a merchant, by the aid of the plaintiffs, and cannot, by any fair or just construction, be so far extended, as to embrace transactions not mentioned, referred to, or implied, in the terms of the letter. (If, in this negotiation, the word ‘ commence ’ had not been used, but the reference had been generally to the business of a merchant, in which .Samuel Ewart was about to engage, and the responsibility of. the defendants made to attach to subsequent dealings, by the words used; in such case, the construction of the instrument must have been according to the intention they expressed.') But, in the case before us, to extend the construction beyond the particular act of dealing, so obviously pointed out in the letter of the defendants, would violate the rule which governs, and ought in reason to govern in all cases of the kind, that a fair and reasonable interpretation, according to the true import of the terms, should be put upon the instrument. The design of the defendants was to introduce Samuel Ewart in business, and nothing more ; nor is there any thing in the letter which would imply an intention of incurring responsibility after such commencement, for any subsequent transaction between the parties. The guaranty of the defendants, in this case, being a limited and not a continuing one, it follows that the plaintiffs met with no ‘ failure or delinquency ’ on the part of Samuel Ewart, so as to charge the defendants, in the sense and spirit of their undertaking, with a responsibility to pay the amount of $4000, depending on the contingency of fáilure or delinquency. But, these views depend not upon my own opinion merely, but have their foundation in sound reason, recognized by judicial decisions. The first case to which I shall refer, is that of Sollee & Warley v. John B. Meugy, reported in 1 Bail., 620, and tried at Kershaw, Spring term, 1830. That was an action of assumpsit, and the question made arose out of the special count in the declaration, in support of which, the plaintiffs offered in evidence the following letter: “ Camden, 5th November, 1824. Mr. F. W. Sollee, Charleston. Sir, — Mr. John B. Matthieu, wishing to alter his present mode of doing business, and make arrangements in Charleston, has requested of me to continue my assistance by lending him my name. I have therefore consented that he shall use it for the amount of from 1000 to 1,500 dollars. He will, in future, carry on business on his own account, and make his own remittances. Yours, J. B. Meugy.” — In this case, the presiding judge thought the guaranty a continuing one, and the plaintiffs recovered a verdict for the full amount of their claim, with interest. A motion was made to set aside the verdict, and for a new trial, on the ground of misdirection by the presiding judge. Judge O’Neall, who delivered the opinion of the court of appeals, says: “ Is the guaranty a continued one, or is it limited to the amount of $1500 ? And did the payment of this sum by Matthieu, in the course of his subsequent dealings, discharge the defendant ?” In the course of his further remarks, he observed “ that so soon as a debt to that amount was contracted, he was liable that far; but beyond it, he was not liable: when that debt was paid, he was discharged.” The difference between the case last mentioned and that now before us, is certainly not calculated to lead to the conclusion that the former was more limited in its terms than the latter. Mat-thieu was already engaged in business as a merchant, connected, it would seem, with some one else ; but desirous of doing business on his own account, procured the letter of guaranty, and obtained credit thereon; and he having paid the amount specified in the letter, Meugy was held to be exempt from all further responsibility on account of the guaranty contained in it. In principle, on the question of responsibility, that case is stronger to show that the guaranty was a continuing one, than the present; for, there is no restriction in the letter of Meugy, to confine the construction to be put upon it to any particular dealing, the responsibility attached to all future dealings not exceeding 1000 or 1,500 dollars; and that amount having been paid by the person obtaining the letter of guaranty, absolved the guarantor from any liability under it. Where the reason is the same, the law is so also; hence I conclude, that so soon as Samuel Ewart, for any dealings had with Boyce and Henry, under the letter of guaranty from the defendants, paid to the amount of #4000, D. & J. Ewart were likewise absolved from all future responsibility.

The case of Douglass and others v. Reynolds and others, reported in 7'Peters. 113, was referred to by the presiding judge who tried this cause, as bearing a stronger resemblance to it than the case of Meugy. The case in 7 Peters, was assumpsit, on the following letter of guaranty: “ Messrs. Reynolds, Byrne & Co. — ■ Gentlemen, Our friend, Mr. Chester Haring, to assist him in business, may require your aid from time to time, either by acceptance or endorsement of his paper, or advances in cash. In order to save you from harm in so doing, we, do hereby bind ourselves, severally and jointly, to be responsible to you at any time, for a sum not exceeding eight thousand dollars, should the said Chester Haring fail to do so. Your obedient servants, John S.-Douglass, Thos. G. Singleton, Homans Going.” — Mr. Justice Story, in delivering the opinion of the court in that case, as to the nature of the guaranty, pronounced it a continuing one. Would the terms of that letter admit of any other construction, as respects the guaranty contained in it ? The opinion of the court was declared to be founded upon the language and apparent intent and object of the letter. The nature of the aid asked for in the case referred to, shows that Haring was then engaged in business: the aid was to be from time to time, and the defendants obliged them to be responsible at any time, for the sum expressed in the letter. Are there any such expressions in the letter of the Ewarts to the plaintiffs 1 ■ So far from it, the words used are so specific as to confine the guaranty to an individual act of dealing ; and the aid asked for is expressly stated to be, to assist Samuel Ewart in commencing- business. It is not that Samuel Ewart may receive aid of the -plaintiffs from time to time, and that they (the defendants) will be responsible, at any time, as in the last case referred to; but so guardedly precise, as to a particular object and transaction. The terms of this letter, therefore, virtually declare the law by which it - shall be expounded; and I recur to the well -established rule, that in giving construction to an' instrument of this kind, it should be founded upon the language and the apparent intent and object of the instrument. I think the cases quoted sufficient to show, that the interpretation which I have given to the letter of defendants, and which, I cannot doubt, is a correct one, entitles them to exoneration from the verdict which has been rendered, under a mistaken view of the law by which this case should have been decided. A case quoted, however, from 3 Barn, and Aid. 595, .bears so directly upon the question of guaranty, that I will strengthen the opinion I have given, by referring to it. Melville and another brought an action of assumpsit against Hayden, on a guaranty, which was in the following words: “ I engage to guarantee the payment of Mr. Amos Moulden, to the extent of £60, at quarterly account bill, two months, for goods to be purchased by him, of Wm. and David Melville.” It appeared that there had been a delivery of goods for three quarterly accounts, all of which had been satisfied by Moulden. The default was made by him in the fourth quarterly payment, for which the action was brought. It appeared that goods in the first quarter, to the amount of £59 4s. had been furnished; and in the second and third, to a greater amount. Abbott, chief justice, thought at the trial that the guaranty was at an end before the goods were furnished, for which the action was brought, and directed a nonsuit. A rule nisi was moved for. The chief justice again expressed himself as follows: “ I had no doubt, at the trial, that this was not a continuing guaranty, and that it was applicable only to the first quarterly payment after it was given, and I am still of the same opinion.” Baily, Kolroyd and Best, Justices, concurred: and Baily, Justice, says — “ a party who takes a guaranty of this sort, should carefully provide that there are words in it expressive of its being a guaranty for goods to be furnished by him from time lo time.” I will not pursue the analogy between that case and the one on which the court have decided; it is too strikingly in point to escape observation.

I am equally convinced on the 4th ground, as taken by the counsel for the defendants, that the plaintiffs are barred from a recovery by the statute of limitations. Waiving all that might be said, on several other grounds taken in this appeal, the statute will certainly operate from the 6th January, 1832, when the plaintiffs closed their account current with Samuel Ewart, and took his note for the balance due, say $16,000, payable one day after date. The liability on the guaranty cannot be considered more efficacious than that created by the note. Four years from that period, the bar was complete; and the suit not having been instituted within four years from the closing of the dealings between plaintiffs and S. Ewart, they are prevented, by lapse of time, from ■ a recovery, if the circumstances of the case would otherwise have admitted of it. In this case, I would not have it understood, that because I have confined my observations principally to two grounds taken in the brief, that therefore I have thought no other ground taken would have availed the defendants. On the contrary, I feel inclined to think, that the plaintiffs having omitted to give the defendants express notice of their acceptance of the guaranty, would have precluded them from establishing it as such; neither do I think the circumstances commented upon by the judge, as affording presumptive evidence, of notice sufficient of themselves to supersede the necessity of express notice. Besides this, the case was attended with circumstances sufficient, in my opinion, to have rebutted the presumption arising from the proximity of the defendants’ place of business to that in which S. Ewart carried on his, together with the other circumstances enumerated in the charge. The date of the letter of the defendants, say in 1825, and the great lapse of time which intervened between the 25th January, 1825, and the closing of accounts between plaintiffs and S. Ewart: the very extended credit given to S. Ewart, by the plaintiffs, far exceeds the amount of the supposed guaranty; the settlement of that account, and the note taken to secure the amount embraced in it, added to the neglect of the plaintiffs in not calling on the defendants for the amount, if, indeed, the plaintiffs ever relied on this as an existing guaranty, would neutralize the supposed force of the circumstances respecting notice of the plaintiffs’ acceptance of the guaranty. Much, too, might be said on the question of the assignment from S. Ewart to plaintiffs; but as it is an unnecessary link in the solution of this question, I forbear, from a principle of delicacy, to comment upon it. — It was stated by the plaintiffs’ counsel that if, in the opinion of the court, the law of the case was against the plaintiffs, a nonsuit might be awarded; and that being the result, as considered by a majority of the court, the nonsuit, as asked for, is ordered.

Richardson, Butler, and Earle, Justices, concurred; Bugler, J. resting his judgment, mainly, on the statute of limitations.

O’Neall, J.

dissenting. As I understand my brethren, they differ with me on two questions: 1st, whether the guaranty be a continuing one, and 2d, whether the plaintiffs’ action be barred.

My circuit opinion, on each of these questions, has undergone no change. The able argument of the defendants’ counsel has received a very deliberate consideration, and yet I think there is nothing in it which shakes the view I take of this case. There is no artificial rule in these cases of guaranty which forces us to construe the instrument against either party. “ The sense and meaning of the parties, upon a fair construction of the words used, must govern.” Still, there are rules of construction which may aid us in arriving at this. What is the most usual mode of interpreting words used ? It is, it seems to me, to give them that meaning which is their most usual and familiar interpretation: if they are susceptible of two meanings, and one of them be favorable to, and the other against the party using them, and there is nothing which gives preponderance to one meaning over the other, then comes in the rule that they must be understood, in that sense which is least favorable to the party using the words. In construing an instrument, construction should be given to the whole of it, and not to words or parts of sentences, by themselves. Garbling an instrument, and construing it by words detached from the context, is any thing else than arriving at the sense and meaning of the parties. With these rules as our guide, let us attempt the construction of the defendants’ letter. Take the whole and read it as such, and, I repeat here what I said in my report, “ it is manifest to my mind, (although I presume it is not so to that of others,) that D. & J. Ewart contemplated aid and indulgence to be extended to their brother throughout the whole course of his business.” For, to a merchant, embarking in business in this town to buy cotton and sell goods, what advantage could it have afforded to have had credit for #4000 given him, for even a year 1 It would have been but a drop in the bucket, which would have remained, in spite of it, empty and dry. But it might well be, that, to gentlemen of the capital and enterprise of the plaintiffs, the certainty of an eventual indemnity of #4000, against loss, might present a motive to hazard a much larger amount in favoring the brother of their correspondents. This would be certainly the effect which such a letter would have on most minds ; and from such an effect, great advantages might be expected to be realized. Look to the account current between Boyce & Henry and Samuel Ewart, amounting to upwards of #170,000, and ask, how can it be believed that the guaranty of $4000 was intended to cover merely the first dealings amounting to that sum ? If this had been the true construction, the guaranty was exhausted on the 29th November ensuing its date: and if the plaintiffs had then said to Samuel Ewart, “ your credit is exhausted — we can credit you no farther,” the aid and indulgence procured for him would have been hardly worth the paper which the defendants used in writing their letter. The other construction, that it was to run through, and be a security against his failure for that much, in all his business, makes the guaranty worth something to Samuel Ew-art : for then, it is the cause of credit, running through several years, and of aid to the amount of at least #170,000. Let us now read this letter — remembering that it is between merchant • and merchant: “ Our brother, Samuel Ewart, is about to commence business on his own account in Columbia, in which he will stand in need of your aid and indulgence, which if you render him, (in case of his failure or delinquency,) we will indemnify you to the amount of four thousand dollars.” What is meant by the words ‘is about to commence business on his own account, in which’ &c.? To what does the word ‘which’ refer? Is it to the commencement of his business, or is it to the business itself? The grammatical construction of the sentence shows that * business’ is the antecedent of the relative pronoun ‘ which’; and it should read, putting in the word to which the relative refers, ‘ Our brother, Samuel Ewart, is about to commence business on his own account, in which business he will stand in need,’ &c. This reading is not only grammatical, but it is so consistent with the object of the writer and the subsequent words used, that I am surprised any other construction should ever have been thought of. Can it be supposed, that a writer of Mr. David Ewart’s intelligence would have spoken of a future necessity, when, if the word used related to the commencement of business, it was then present and existing ? The writer goes on to say, 1 he will stand in need of your aid and indulgence.’ These words contemplate, if I understand the English language, future aid and future indulgence. The one was to be rendered as the party needed it, and the other to be extended to him from time to time. The natural import of the terms is, ‘ he will want money and goods from you in the course of his business, and he may not be able to pay for them regularly, and therefore he will need your aid and indulgence; which if you render him, (in case of his failure or delinquency,) we will indemnify you.’ If the letter had stopped at these words, and ‘ to the amount of #4000’ had not been added, could it have been doubted that the guaranty was both continuing and unlimited ? - I think not. If so, before we recur to the words used, let us ask what effect the sum fixed can have ? It cannot prevent the guaranty from being regarded as a continuing one: it is nothing more than the limitation of the defendants’ eventual liability under it. What is meant by the terms 1 failure or delinquency V It is true, in legal parlance, the neglect of any duty may be a failure, and the commission of any fault a delinquency ; but, as I said in the outset, the defendants were merchants speaking to'merchants; and their words must have ’their usual interpretation among them. The word failure,’ applied to a merchant or mercantile concern, means an inability to pay his or their debts, from insolvency.'— I take it, then, that the word ‘ failure ’ must be regarded as sy-nonimous with ‘insolvency.’ . ‘ Delinquency’ cannot mean, when applied to a merchant, any thing less than that he has proved to be dishonest, and attempted to evade the payment of his debts. Read this part of the letter, ‘ in case of his insolvency or refusal to pay, we will indemnify you.’ Let it now be asked what is meant by the words ‘ we will indemnify you.’ Can it be supposed that they were intended to make the defendants mere sureties for $4000, then to be advanced ? Indemnity is a provision against a future possible loss. That is what the parties here contemplated. Samuel Ewart might fail in his business; and if so, D. & J. Ewart would indemnify the plaintiffs for a part of their loss, to the amount of $4000.

Having thus run through the letter, and ascertained the meaning of every doubtful phrase, without resorting to the rule, that if the words be doubtful, and there is nothing to fix a contrary meaning — then, that they should be taken in the sense least favorable to the party using them, the construction will be ■ much strengthened by thus applying it, and removing every doubt. — ■ Let the letter be now read as I have construed it: ‘ Our brother, Samuel Ewart, is about to commence business on his own account, in Columbia, in which business he will need your aid and indulgence, which if you render him, (in case of his insolvency or refusal to pay his debts,) we will indemnify you to the amount of $4000,’ — and I will ask any unprejudiced man what sort of guaranty is it ? Is it not to be and exist during Samuel Ewart’s business? The answer must be, it is so: and thus it becomes a continuing guaranty, limited as to the amount to be paid under it. Is there any thing in the cases on this subject which forbids this conclusion ? My time will not allow me -to examine them at length and in detail, as I should desire to do; but I know there is nothing in any one of them which stands in the. way. None of them afford any such test, (as my friend, the last counsel for the defendant supposed,) by which every case of this sort may be at once decided, and the court enabled to say what is a continuing guaranty, and what is not one. Each case depends upon itself; the contract between the parties is its law, and not an artificial rule. If there is any such rule applicable to every case, it is that stated by Lord Ellenborough, when he said, “ if a party mean to confine his liability to a single dealing, he must take care to say so.”

The cases of Mason v. Pritchard, 12 E. 227; Merle v. Wells, 2 Camp. 413; Bastow v. Bennett, 3 Camp. 220; Hargreave v. Smee, 6 Bing. 224; Simpson v. Manley, 2 Tyr. 86; Allen v. Fleming, 9 Bing. 618, are all cases of continuing guaranty. That they are opposed by Melville v. Hayden, 3 Barn. & Ald. 593; Kay v. Groves, 6 Bing. 276, and Nicholson v. Paget, 1 Cr. & Mee. 54; in which it was held that the guaranties were special and limited, is not to be wondered at, when the result of the cases depended on the words used by the parties. The case of Sollee & Warley v. Meugy, 1 Bail. 620, is also a case of limited guaranty on the words used. But if I have succeeded, as I hope I have shown, that the parties guaranteeing here looked forward to successive dealings and future credits, then that case does not touch this. I said in my report, that this case was more like Douglass v. Reynolds, 7 Pet. 113, than the case of Sollee & Warley v. Meugy; and I now say, that, take that case and compare it with this, and they seem to me to be identical in every thing except that in that, the words ‘from time to time’ and ‘at any time,’ occur ; and in this, they are wanting: but in this, other words are used, indicating as clearly that the parties contemplated future dealings, credit and responsibility. It will be seen, that in passing upon the construction of the guaranty there, great stress is laid upon the fact that the object was to assist Haring in business. It is said “ it was not contemplated to be a single transaction, or an unbroken series of transactions, for a limited period.” These words apply in full force in this case, as much as they do to that. In that case, Mr. Justice Story denied that the courts have inclined to vary the rule of construction of instruments of this nature, and to hold them to be strictissimi juris, as to their interpretation. In his opinion, he sets out and maintains every rule of construetion on which I have relied. It seems to me, that all the confusion, in cases like the present, has arisen from the importance attached to the limitation in amount. It is hence that a guaranty is often concluded to be a limited one throughout, when it was-only intended to guard against a too great eventual responsibility. I can very well understand, when a party says “for goods to be delivered, or money to be advanced, to the amount of #4000,1 will be responsible,” that this should be held to be a limited guaranty: but when those expressions are varied, and the party says — “ for goods to be delivered, or money to be advanced, I will indemnify you to the amount of #4000,” — I am, I confess, unable to see the reason why that should be confined to a single transaction, or to an unbroken series of transactions, amounting to #4000. It is satisfied in every word, by an eventual loss arising out of the dealings between the parties. If the natural import of the words leads to this result, why apply an artificial rule to break down their meaning, and make the guaranty mean something which the parties did not intend 1 I do not understand that there is, on a contract, any such rule, as that the surety is to be favored in its construction. He is a party to it, and the rules of construction apply to him as they would to any other party.. Because a case is a hard one, is no reason that a party should be excused: but when we talk about a hard case, we forget that to absolve one, on whom a contract operates hardly, may make the case an equally hard one on the other party, who is thus deprived of his money. I am thoroughly satisfied, that the contract sued on is a continuing guaranty, limited in amount, but not as to time.

This being so, I propose now to show that the statute of limitations is no bar. To be barred, it must appear that the plaintiffs’ cause of action accrued four years before the commencement of this suit. When could they sue the defendants on this guaranty ? Certainly not until the insolvency of Samuel Ewart, or his refusal to pay his debts. If the suit could only be brought at or after his insolvency, it is perfectly clear, that from the assignment, which was the first evidence of his insolvency, to the commencement of this suit, the four years had not run out. If from a refusal to pay his debts, it would still be a less time: for, during a year succeeding the assignment, he was endeavoring to pay. But, if the words * failure or delinquency’ mean simply a refusal to pay the debt to the plaintiffs, still the action is not barred; for, he attempted to pay by the assignment, and in the course of the year succeeding it, made payments. If, however, the words ‘ failure or delinquency’ mean a neglect to pay, then, I admit, something beyond them must be shown to prevent the operation of the statute. That, I think, is done, when it is shown that by the concurrence of the defendants an assignment was made to the plaintiffs, which was defeated by the course they recommended to be pursued in relation to it. If the guaranty be a continuing one, then that act, done with their concurrence, was an admission of their liability, and the statute could not sooner begin to run. — • But, when it is remembered, that by the advice of David Ewart, Samuel Ewart was to go on with his business for another year, in order to discharge this very debt, and other debts, to the defendants, or for which they were liable, and that the plaintiffs also consented to this arrangement, I should say that the plaintiffs could not sue these defendants, until the expiration of that time, and are therefore not barred.

Note. — It will be observed, that in reporting the eases of the Columbia December Term of the Court of Appeals, none of the arguments of counsel have been given. It would be perhaps sufficient here to remark, on that subject, that the present incumbent was not elected to the office of Reporter until the 14th of December, 1838, when all the cases of that term had been argued, and the opinions of the court, in all but two or three of them, delivered. The only mode in which any thing like a correct statement of the arguments of counsel in these cases could have been obtained, (if they could have been procured at all,) would have been through the politeness of the gentlemen of the bar, concerned in them, who might have retained, or would have been willing to prepare an abstract of their arguments, in the respective cases. To have waited for such information, would have involved too great delay in the publication of the decisions; which, under the present law, are required to be published within such a period of time from their delivery, as to leave nothing to spare. The only case in which any abstract of the argument of counsel has been furnished to the reporter, in relation to the preceding cases, is that of Mr. Gregg, in the case of Boyce & Henry v. D. & J. Ewart. The politeness of Mr. Gregg put in the- possession of the reporter a full statement of his very able argument in that case: and it is with sincere regret that the reporter found it impossible to publish it, where it properly belongs, in the report of the case itself. It will be remarked, that the case itself, embracing the very elaborate opinion of the majority of the court, and the dissenting opinions of Justices O’Neall and Evans, makes in all nearly twenty pages ; which is as much space, judging from the materials to make up the volume of Reports, as could well be assigned to it. The argument of Mr. Gregg, if published entire, would have added at least twenty pages more to the case; and the reporter found it impossible to do justice to it by any abridgment of it, which he thought practicable. The reporter regrets his inability to give the argument of Mr. Gregg, tin the case referred to; not only because he feels confident that it would have been read with great satisfaction, but because Mr. Gregg, in furnishing the reporter with a statement of his argument, drawn up by himself, has pursued the only mode in which the arguments of counsel ever can be 'given by the reporter, which will render them really valuable, and creditable to the profession. • R.

Gregg., for the motion.

Evans, J., concurred, as to the construction of the guaranty.  