S1545. A guarantor of payment or performance is liable to the guarantee immediately upon the default of the principal,' and without demand or notice.2 1 Van Rensselaer v. Miller, Hill & D. Supp., 237; Bank of Liability upon guar anty of pay ment or per formance. Liability anty of a upon guar conditional S1546. Where one guaranties a conditional obligation, his liability is commensurate with that of the principal, and he is not entitled to notice of the obligation. default of the principal, unless he is unable, by the exercise of reasonable diligence, to acquire information of such default, and the creditor has actual notice thereof. Douglass v. Howland, 24 Wend., 35. S1547. The obligation of a guarantor must be neither larger in amount nor in other respects more burdensome than that of the principal; and if, in its terms, it exceeds it, it is reducible in proportion to the principal obligation. Code Napoleon, 2013. S 1548. A guarantor is not liable if the contract of the principal is unlawful; but he is liable notwithstanding any mere personal disability of the principal, though the disability be such as to make the contract void against the principal. Kimball v. Newell, 7 Hill, 116; Swift v. Beers, 3 Denio, Obligation antor can of guar not exceed that of the principal. Guarantor on an illegal not liable contract. Continuing guaranty, what, Revocation. ARTICLE V. CONTINUING GUARANTY. SECTION 1549. Continuing guaranty, what. S 1549. A guaranty relating to a future liability of the principal, under successive transactions, which either continue his liability or from time to time renew it after it has been satisfied, is called a continuing guaranty. See Agawam Bank v. Strever, 18 N. F., 502; Rindge v. 232. In general an agreement to be responsible for goods delivered to a third person, will not be deemed a continuing undertaking, unless its language clearly indicates that such was the intention of the parties (Dixon v. Frazee, 1 E. D. Smith, 32; Fellows v. Prentiss, 3 Den., 512; Whitney v. Groot, 24 Wend.., 82). S 1550. A continuing guaranty may be revoked at any time by the guarantor, in respect to future transactions, unless there is a continuing consideration as to such transactions, which he does not renounce. Offord v. Davies, 12 C. B. [N. S.], 748. There seems no sufficient reason for preserving the exception in the case of guaranties under seal, as to which, see Hassell v. Long, 2 M. & Selw., 363, 370; Calvert v. Gordon, 7 B. & Cr., 809. ARTICLE VI. EXONERATION OF GUARANTORS. SECTION 1551. What dealings with debtor exonerate guarantor. 1552. Void promises. 1553. Rescission of alteration. 1554. Part performance. 1555. Delay of creditor does not discharge guarantor. guarantor. ings with debtor guarantor. S1551. A guarantor is exonerated, except so fal What dealas he may be indemnified by the principal,' if by any exonerate act of the creditor, without the consent of the guarantor,3 the original obligation of the principal is altered' in any respect, or the remedies or rights of the creditor against the principal," in respect thereto, in any way' impaired or suspended." 5 Moore v. Paine, 12 Wend., 123. 'Bowery Savings Bank v. Clinton, 2 Sandf., 113; Storm pal becomes liable under the contract as it originally stood (Bonar v. Macdonald, 3 H. of L. Cas., 226). A question has been suggested whether this rule should not be qualified so as to prevent the surety from claiming a discharge through an alteration in the principal contract not assented to by him, if the court or jury were of opinion that it operated to benefit him. This qualification of the surety's right to a discharge, finds some support in the language of the New York Common Pleas in Ogden v. Rowe (3 E. D. Smith, 312). The defendant in that case was surety for rent due on a lease. By the terms of the original lease the rent was payable quarterly; but the tenant, by his subsequent request, was permitted to pay monthly. The court say: "It is now insisted that accepting the payment of rent monthly was an alteration of the lease of the landlord, which discharged the surety. This claim cannot be sustained, for two reasons: First, the proof did not show any binding agreement to pay and accept monthly; and second, the acceptance of the rent, before it became due, by the terms of the lease, was in ease of the surety, and did not in any wise alter the nature or extent of his obligation; it rather reduced the probability that he would be liable at all, by reducing the amount in arrear. As well might a surety on a bond for the payment of money at the expiration of one year, claim that he is discharged because at the end of six months the obligee consented to receive from the principal debtor one-half the sum secured to be paid." The result reached was doubtless correct, for the reason that the facts amounted only to part payment, and did not show a case of alteration of the original obligation. But a careful examination of the authorities, and a consideration of the grounds of a surety's liability, have convinced the commissioners that the suggestion that an alteration of the principal contract, though never assented to, may be disregarded if perceived to operate in favor of the surety, is inadmissible. The obligation of a surety is founded in his contract; and it is a contract which, upon well recognized principles is to be construed favorably for him. His assent is an essential element in this contract, and an essential ground of his obligation. There is no more propriety in permitting his principal and the creditor to modify his contract without his assent, and upon the mere ground of a benefit thereby done him, by modifying the contract between themselves for which he stands sponsor, than there would be in allowing one person to enter into an original engagement for another, without his assent, and in holding the latter as a contracting party, on the ground of anticipated benefit to him. The presumption of assent may well be aided by the fact of a benefit to be derived. But it is the assent, and not the benefit, which after all constitutes the contract. The surety has the right to judge for himself, and beforehand, whether the proposed change in his obligation is for his benefit or not; and the opinion of a judicial tribunal, taken after the fact, cannot safely be substituted for the judgment of the party interested. It is settled that the creditor, after he has altered the obligation of the principal debtor, will not be allowed to hold the surety by showing that the change made was not prejudicial to the latter. This negative answer to the surety's objection is clearly insufficient. Thus in Birckhead v. Brown (5 Hill, 634, 640; affd., 2 Den., 375), the court say: "The doctrine is a familiar one that a surety can only be charged where the case is brought within the very terms of his contract. * * * Courts are not at liberty to speculate upon the question whether the surety has or has not been injured by a departure from the terms." To the same effect, see Newton v. Chorlton, 10 Hare, 646; 2 Drewry, 333; Calvert v. London Dock Co., 2 Keen, 638. See also a strong intimation that an alteration even to the benefit of the surety would discharge him, in Blest v. Brown, 8 Jur. [N. S.], 602. In Dobbin v. Bradley (17 Wend., 422), the defendant guaranteed the paper of Smith to be made payable at a particular bank. Smith gave his note to the plaintiffs, in the course of the business mentioned in the guaranty, but made it payable generally, or in other words, without specifying any place of pay. ment. And although the note was deposited in the particular bank before it came to maturity, it was held that the defendant was not liable. The court refused to go into the inquiry whether the surety had been injured, saying it was enough that the case did not come within the terms of the contract. In Colemard v. Lamb (15 Wend., 329, 332), the court, commenting on an alteration in the original agreement, say: "A new contract was thus made between the principal parties, without the consent of the surety, and one for which he had never agreed to be responsible. The arrangement was one which might not improbably prove prejudicial to the surety. But it is unnecessary to speculate upon the consequences |