
    COBB & al. v. LITTLE.
    ^Vhere the promissee in a negotiable note, payable in six months, sold it, having made and signed this indorsement on it — “ I guaranty the payment of the within note in six months” — this was holden tobe an absolute and original undertaking, by which it was the duty of the guarantor to see that the maker paid the money within the time specified, — or to take notice of his, neglect and pay it himself.
    If an action against the maker of a note lpe brought in the name of one only, of two joint indorsees, and judgment be had therein; they are not thereby estopped to maintain a. joint actipn against the indorser, as guarantor of the same note.
    This was an action of assumpsit on a promissory note, made by one Thomas Crague, April 30,1817, payable to the defendant or his order in six months ; on the back of which' was written as follows ; — “ I guaranty the payment of the within note “ in six months. Thomas Little. June 3,1817.” to which were, added by Mr. Kinsman, one of the plaintiffs, these words— “ to Matthew Cobb and Nathan KinsmanP
    
    The plaintiffs, at the trial in the Court below, after producing the note, called a witness, who testified that on the third day of June 1817, he was present when the defendant contracted with Mr. Kinsman for the purchase of certain real estate in Windham, which the witness had previously mortgaged to Kinsman and Cobb; — that the note in question, with another against Crague of the same date and tenor, but payable in three months, were among others delivered by Little to Kinsman in part payment for the real estate l — that he saw the defendant sign the guaranty on the back of the notes against Crague, and' heard him say they were good, and that he would guaranty the payment of them at all events; — that the witness then executed a deed of the land to the defendant at Cobb and Kinsman's request; — and that a small sum remaining, over and above the amount due on the mortgage, in the hands of Mr. Kinsman, was by him paid over to the witness.
    The plaintiffs also proved that they sued Crague, in the name of Matthew Cobb alone, for payment of the note in question in April 1819, and recovered judgment in November following; and that though a small sum was collected of him by another creditor in the course of that year, yet he was unable to pay this judgment, and discharged' himself from prison by taking the poor debtor’s oath. They also proved by Crague that he was sued in November 1817 on the other note, which was payable in three months, of which fact he gave the defendant immediate notice ; and that he paid the judgment recovered in this last suit after the issuing of execution thereon.
    The defendant proved that in the years 1817 and 1818 Crague was possessed of sufficient visible property to pay his debts, and that large debts were collected of him during that period ; but that no demand of payment was made of him till he was sued in the year 1819 as above mentioned. And no demand appeared to have been made on Little, or notice given to him that the note was unpaid, till after Crague had taken the benefit of the poor debtor’s oath..
    Upon this evidence the Judge in the Court below instructed the jury that the facts constituted no defence to the action, and accordingly they found for the plaintiffs, to which the defendant filed exceptions pursuant to the statute.
    
      Frost and Fessenden, for the defendant,
    contended — 1. that the plaintiffs were guilty of gross negligence, which exonerated the defendant. The very nature of guaranty, which is a collateral undertaking, implies something to be done by the holder of the note; which is, to use, with all diligence, the legal means to collect it; — and to suffer a long period to elapse without en-' forcing payment is in effect saying that the holder will look to the debtor alone. Mo'akty v. Riggs, 19 Johns. 69. Bank of N. 
      
      York v. Livingston, 2 Johns. Ca. 409. Stafford v. Low, 16 Johns. 67. Beekrrian v. Hale, 17 Johns. 134. Tilghmanv. Wheeler, 17 Johns. 326. Warrington v. Furber, 8 East. 240. Phillips v. Ashling, 2 Taunt. 206. Joslyn v. Ames, 3 Mass. 274. — 2. That the note having been sued against the maker in the name of Cobb alone, the plaintiffs are estopped from claiming it as their joint property, the case finding no new facts to change the original contract. 4 Com. Dig. tit. Estoppel A. B. Bull. JV. P. 170. Commonwealth v. The Pejepscot proprietors, 10 Mass. 155. Tyler v. Binney, 7 Mass. 479.
    
      Emery and Kinsman, for the plaintiffs,
    said that the defendant here had made himself responsible at all events, thus placing himself in the situation of a surety to Crague, and therefore the doctrine of laches did not apply. It was the duty of the defendant to have paid the note at the end of six months according to his stipulation. Had he done this, he might have protected himself against the loss of which he now complains, and which is imputable to himself alone, — TJpham v. Prince, 11 Mass. 14. — As to the estoppel — the doctrine advanced is applicable only to real estate; — and if it was pertinent to this case, the fact of Mr. Kinsman’s not having been a party to the guaranty, if true, should have been shewn in abatement.
   Mellen C. J.

delivered the opinion of the Court.

One objection to the plaintiff’s right of recovery is, that Cobb alone commenced the action on this note against Crague the promisor, and obtained judgment against him; and that therefore they are now estopped to aver that the property of the note is in both the plaintiffs.

As the defendant in this action is not bound by that judgment, he cannot avail himself of it by way of estoppel, as against the plaintiffs. See Phil. Evid. 249. and cases cited. Besides, in the action against Crague, Cobb declared that the note was indorsed to him ; and being a blank indorsement, it might be alleged to have been indorsed to a person to whom Cobb had transferred it by delivery. For convenience he might sue in his own name only, as indorsee, though he was not the sole, owner. And it may be further observed, that there is proof in the case of a joint interest in the two plaintiff’s iri this action, and no objection was made to its admission. There is nothing of the nature of an estoppel, according to the legal import of the term, applicable in this cáse. And we think this' objection cannot prevail.

Another objection is, that the defendant is discharged from the obligation of his guaranty, by the negligence of the plaintiffs in not collecting the amount of Crague; it appearing that the suit against him was'not commenced, till about eighteen months after the note became due ; during which time Crague -ivas solvent, and possessed of sufficient visible property. It is understood that the defendant and Crague both live in the Same town; and the pecuniary circumstances of the latter must have been known to Him, more easily than to the plaintiffs, who reside in Portland ; and as it does not appear that the defendant had any doubts of the solvency of Crague before, or at the time Cobb commenced his action against him, and if he had, that he communicated them to him, so as to put him on his guard to secure the demand, dr intimated a wish to have Crague sued for the money,- we do not perceive that the plaintiffs have been guilty of such negligence 'as to have lost their remedy against the defeildant;

But we think there is another ground on which the action is éustainable. The guaranty, in its terms,' is absolute, that the note should'be paid in six months. Sometimes a guaranty is conditional, as in the case of Tyler v. Binny, 7 Mass. 479 ; sometimes absolute, as in the case before us, and in Bank of Men York, v. Livingston, cited by the defendant’s counsel; Parties make this species of contract, like all others, on such terms as they choose. But it is ^contended that where a guaranty is absolute in its terms, still it is incumbent on the creditor to use all due diligence to obtain payment of the original debt- or, or he will lose the benefit of it. No" cases have been cited' to establish this position, and the question is, why a person should not be bound as effectually and as long upon an absolute guaranty, as upon any other absolute promise, (unless perhaps, in case of fraud or very gross negligence on the part of him to- whom it is given;) an'd why the court should attach at tacit condition in one case, and not in the other, when in both the written engagement is absolute. In Hunt v. Adams, 6 Mass. 519, the guaranty oi* promise relied on was in these words; “ I acknowledge myself to be holden as surely for the payment of the above note.” The note had been signed by Chaplin. Parsons C. J. in delivering the opinion of the Court says, We are satisfied that the defendant is answerable as “ an original promisor, and not merely on the contingency “ of Chaplin’s failing to pay. However, it was in evidence “ that when the note was delivered to Bennett, he and Chaplin “ considered the defendant as holden for the payment, on the “ condition that Chaplin could not pay. It would require some “ consideration before evidence of this kind was admitted to “ control the legal effect of the writing.” None of the cases cited by the defendant’s counsel are like this. In Moakly v. Riggs the engagement was collateral and conditional. In. Stafford v. Low, Beekman v. Hale and Tilghman v. Wheeler, no express guaranty was given. In Phillips v. Astling particularly relied on by the counsel, the guaranty of the defendant was, that the debt should be paid by a bill to be drawn by Davenport Phinny on Houghton ; and the case shows that the bill, though drawn and delivered to him, was never presented to Houghton for acceptance or payment, or any notice whatever given to the defendant of this omission or the non payment of the debt.

In the case before us the defendant’s engagement was absolute, that the note should be paid in six months. It was not paid by Crague or by him. It was the duty of the defendant upon such an engagement, to see that Crague paid the money within the time specified; and if he did not, to take notice of his' neglect and pay the amount of the note himself. Accordingly the judgment of the Court of Common Pleas is affirmed.  