
    
      John S. and William Smyley, adm’rs. of Alexander McCreary, vs. Margaret Head, B. Dean and John Adams.
    
    The sureties to a note are liable, although the note is void as against their principal, because she was a feme covert when it was signed.
    Where the surety to a note, given for property purchased at an administrators’ sale, when requested by the principal to sign it, was told by the'payee that his signature was only wanted as a form, to comply with the order of the ordinary; held, that no fraud was thereby practised on the surety which avoided the note as to him.
    
      Before Frost, J. at Edgefield, Spring Term, 1845.
    This was a sum. pro. on the joint and several note of the defendants, given to the plaintiffs, in payment of purchases made by Margaret Head, at the sale of the estate of the intestate, who was her father. The defence of Margaret Head was, that she was a feme covert at the time of the execution of the note. The proof supported the averment, and the? plea of coverture was allowed.
    It was objected that the note being void against Margaret Head, by reason of her coverture, was void against all the parties to it; which objection was over-ruled.
    In behalf of John Adams, it was contended that his signature to the note had been procured by the fraud of the plaintiffs, and that he was not bound. The proof on this point was, that Margaret Head brought her note, for the amount of her purchases, and asked Adams to sign it, as her surety. John Smyley, who was present, said he only wanted his signature as a form necessary to comply with the. order of the ordinary. Adams said he would sign the note for him ; but not for Mrs. Head. John Smyley added, that the share of Mrs. Head was in his hands, and he would apply it to pay the note. Another witness proved that he heard John Smyley speaking with Mrs. Head about-the note, and he thought Smyley said he would take up the note, and Mrs. Head would give him her note, to be satisfied out of'the estate.
    
      The plaintiffs had leave to discontinue against M. Head, and a decree was given against the other defendants.
    The defendants Dean and Adams appealed, and now moved for a new trial, on the following grounds :
    1. That, the single bill sued on, having been given by Margaret Head, the - principal, whilst she was a married woman, was absolutely void as to all the parties to it.
    2. That the defendant Adams was not liable, because of the fraud on the part of the plaintiffs in procuring his signature to the single bill, and in failing, according to their promise at the making of the single bill, to apply the share of Mrs. Head in their intestate’s estate, to the payment of the said single bill.
    Griffin, for the motion.
    Bonham, contra.
   Curia, per Frost, J.

The first ground of appeal insists that the sureties to a joint and several note may except to the coverture of the principal debtor, in discharge of their liability. It is true, as a general rule, that the extinction of the principal obligation extinguishes that of the surety. But a distinction must be observed between such exceptions to the contract as are personal to the principal, and such as affect the contract itself. Fraud, illegality or mistake, which may rescind the contract of the principal, induces the discharge of the sureties ; but if the invalidity of the contract rests upon reasons personal to the princi- ■ pal, in the nature of a privilege or protection, the principal acquires a personal defence against the contract, which notwithstanding subsists and may charge the sureties. The minority of the principal does not discharge the sureties. In Maggs vs. Ames, 4 Bingh. 470, it was held that the parties to a guaranty of the payment of goods, to to be supplied to a married woman, were responsible. The liability of the surety in such case, may be supported on the ground that he shall not protect himself by alleging the incompetency of the supposed principal; which may have been the very motive with the other contracting party for requiring security; and by analogy to the law of principal and agent, the surety may be held liable as principal, for an engagement he has made in behalf of one who was incompetent to contract.

The defence of fraud made by Adams, rests on the proof that, at the time he consented to join in the note, Smyley told him that his signature was only wanted as a form, to comply with the order of the ordinary. It is so common for the party served, in order to relieve the weight of the obligation, and quiet the apprehensions of the surety, to represent the act as necessary only in compliance with a formal requirement, that it cannot readily be supposed any person is defrauded by such a representation. It is too palpably inconsistent with the act of the party to be charged, to admit a belief that he has been imposed upon ; and if allowed to discharge such contracts, they would serve no purpose of security. It was after Adams had consented to sign the note, that Smyley said to him, it would be paid from Margaret Head’s share of the estate. Adams was not therefore induced by this statement to become her surety, and cannot allege it as a fraudulent misrepresentation to discharge him. If it could be construed into a promise by Smyley, it was gratuitous ; but it seems to have been merely an expectation of payment from that source, which Smyley held out to Adams; and not a conditional engagement in consideration of which Adams joined in the note. The motion is refused.

Richardson, Evans and Wardlaw, JJ. concurred.

O’Neall, J. I dissent as to the liability of Adams.  