་ which were likely to result from the new agreement made with the principal. It is enough that a new agreement obligatory upon the parties to it, was actually made; and as this was done without the consent of the surety there can be no doubt that he was discharged from all further liability." See to the same effect Miller v. MeCan, 7 Paige, 451. In Bonser v. Cox (4 Beavan, 379; 6 id., 110), A. agreed to become surety for B. for the repayment of an advance to be made in the shape of a draft at three months. The advance was made by an immediate payment; and it was held that the surety was discharged. The reason for the rule which prohibits a surety to be holden simply because the alteration was not injurious to him-viz.: that his assent to be surety upon the altered agreement is needed to constitute him one - is equally valid to forbid that he should be holden because the modification is thought to tend to his benefit; except indeed that there will be cases in which the fact that it was beneficial may aid other circumstances to satisfy the jury of the fact of assent. This principle is unaffected by the section in the text. Cases enforcing the general rule that modifications of the principal's contract will discharge the surety, in which the particular question of injury or benefit to the surety from the change did not arise, are Rathbone v. Warren, 10 Johns., 587; Bangs v. Strong, 7 Hill, 250, affirming S. C., 10 Paige, 11; Coleman v. Wattle, 6 N. Y., 44. The decisions in Shufeldt v. Gustin (2 E. D. Smith, 57), and Ogden v. Sanderson (3 id., 166), rest upon the ground that the negotiations between the creditor and the principal debtor had never reached the point of a binding agreement changing the original obligation. Reynolds v. Ward, 5 Wend., 501; Hall v. Constant, 2 Hall, 185; Gahn v. Niemcewicz, 11 Wend., 312, aff'g S. C., 3 Paige, 614; Newsam v. Finch, 25 Barb., 175. Bangs v. Strong, 7 Hill, 250, aff'g S. C., 10 Paige, 11. • Hall v. Constant, 2 Hall, 185; Vilas v. Jones, 1 N. Y. 274, affirming S. C., 10 Paige, 76; Bower v. Teirmann, 3 Denio, 378. Smith v. Townsend, 25 N. Y., 479; Huffman v Hulburt, 13 Wend., 377; Draper v. Trescott, 29 Barb., 401; Henderson v. Marvin, 31 Barb., 297; Hart v. Hudson, 6 Duer, 294; Cross v. Sprigg, 2 Macn. & G., 113; Bank of Ireland v. Beresford, 6 Dow, 233; Combe v. Woolf, 8 Bing., 156; Manuf. & Mech. Bk. v. Bank of Penna., 7 Watts & S., 335; McComb v. It has been held that a mere covenant not to sue prom:ses. S1552. A promise by a creditor, which for any Void cause is void, or voidable by him at his option, does not alter the obligation or suspend or impair the remedy, within the meaning of the last section. Hall v. Constant, 2 Hall, 185; Bangs v. Strong, 10 Paige, of altera $ 1553. The rescission of an agreement altering Rescission the original obligation of a debtor, or impairing the tion. remedy of a creditor, does not restore the liability of a guarantor who has been exonerated by such agreement. Dewey v. Reed, 40 Barb., 16; see Bonar v. Macdonald, formance. 1554. The acceptance, by a creditor, of any Part perthing in partial satisfaction of an obligation, reduces the obligation of a guarantor thereof, in the same Delay of creditor does not measure as that of the principal, but does not otherwise affect it. To this extent the doctrine of Ogden v. Rowe (see note to section 1551) may be admitted. See also Ellis v. McCormick, 1 Hilt., 313. S 1555. Mere delay on the part of a creditor to proceed against the principal, or to enforce any other guarantor. remedy, does not exonerate a guarantor. discharge Guarantor indemnified by the debtor not exonerated. Discharge of principal by act of law does not discharge guarantor. Williams v. Townsend, 1 Bosw., 411; Albany Dutch Church v. Vedder, 14 Wend., 165; Sailly v. Elmore, 2 Paige, 497; Daniels v. Patterson, 3 N. Y., 47; Schroeppell v. Shaw, 3 N. Y., 446, aff'g S. C., 5 Barb., 580; Goldsmith v. Brown, 35 Barb., 484; Miller v. Stem, 2 Penn. St., 286; Shook v. State, 6 Ind., 113; Nichols v. McDowell, 14 B. Monr., 6; Hoyt v. French, 4 Foster [N. H.], 198; Hunter v. Jett, 4 Rand., 104; Sawyer v. Patterson, 11 Ala. [N. S.], 523; Clarke Co. v. Covington, 26 Miss., 470; Hunt v. Bridgham, 2 Pick., 581. S1556. A guarantor, who has been indemnified by the principal, is liable to the creditor to the extent of the indemnity, notwithstanding that the creditor. without the assent of the guarantor, may have modified the contract or released the principal. Moore v. Paine, 12 Wend., 123; Pratt v. Adams, 7 Paige, 615; Ten Eyck v. Holmes, 3 Sandf. Ch., 428; Smith v. Steele, 25 Verm., 427. S 1557. A guarantor is not exonerated by the discharge of his principal by operation of law, without the intervention or omission of the creditor. Bowery Savings Bank v. Clinton, 2 Sandf., 113; Storm v. SECTION 1558. Surety, what. 1559. Apparent principal may show that he is surety. what. S 1558. A surety is one who, at the request of Surety. another, and for the purpose of securing to him a benefit,' becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor." 'The common definition of a surety (see Webster's, Wharton's and Burrill's Dictionaries), cannot be dis- The distinction between a surety and a mere 'Vartie v. Underwood, 18 Barb., 561; Gahn v. Niem- principal that he is $ 1559. One who appears to be a principal, whether Apparent by the terms of a written instrument, or otherwise, may show may show that he is in fact a surety, except as against persons who have acted on the faith of his apparent character of principal. surety. So held as between the parties themselves (Rouse. Whited, 25 N. Y., 170; Barry v. Ransom, 12 id., 446; Griffiths v. Reed, 21 Wend., 502); and so as to third persons in equity (Hollier v. Eyre, 9 Clark & Fin., 1; Davies v. Stainbank, 6 De G., M. & G., 679). At common law, the rule excluding oral evidence to vary a written contract excluded evidence to show that the apparent principal was a surety (Harrison v. Courtauld, 3 B. & Ad., 36; Fentum v. Pocock, 5 Taunt., 192; see, however, Artcher v. Douglass, 5 Denio, 509); and upon the authority of these cases alone- -the decisions in equity not being cited by counsel on either side-the same rule has been followed in a recent case in this state (Howard Banking Co. v. Welchman, 6 Bosw., 280). The fusion of law and equity in this state has superseded the common law rule. In England, since equitable defenses have been admitted in common law courts, the equitable rule has been followed and defined as in the text, by all the judges (Pooley v. Harradine, 7 El. & Bl., 431; Greenough v. McClelland, 2 El. & El, 424; 6 Jur. [N. S.], 772; 30 L. J. [Q. B.], 15; Taylor v. Burgess, 5 Hurlst. & N. 1). And see Mohawk and Hudson River R. R. Co. v. Costigan, 2 Sandf Ch., 306; Artcher v. Douglass, 5 Denio, 509. Compare Casey v. Brabason, 10 Abb. Pr., 368; Gahn v. Niemcewicz, 11 Wend., 312; Elwood v. Diefendorf, 5 Barb., 398; Chester v. Bank of Kingston, 16 N. Y., 336. The same rule is established in Massachusetts (Weston Chamberlain, 7 Cush., 404; Carpenter v. King, 9 , 511; Har is v. Brook', 21 Pick., ' 35.) ARTICLE II. Limit of surety's LIABILITY OF SURETIES. SECTION 1560. Limit of surety's obligation. 1561. Rules of interpretation. 1562. Judgment against surety does not alter the relation. S 1560. A surety cannot be held beyond the exobligation. press terms of his contract,' and if such contract prescribes a penalty for its breach, he cannot in any case be liable for more than the penalty.2 'Ludlow v. Simond, 2 Cai. Cas., 1; Walsh v. Bailie, 10 Johns., 180; Penoyer v. Watson, 16 id., 100; see also Manhattan Gas Light Co. v. Ely, 39 Barb., 174· 25 How. Pr., 237. |