1 M'lver v. Richardson, 1 M. & S. 557; Tuckerman v. French, 7 Greenl. 115; Mussey v. Rayner, 22 Pick. 223; Allen v. Pike, 3 Cush. 238; Fellows v. Prentiss, 3 Denio, 512; Emerson v. Graff, 29 Penn. St. 358; Kellogg v. Stockton, 29 Penn. St. 460; Cooke v.

But on an ordinary letter of credit there should be a notice of acceptance given to the guarantor by the guarantee in all cases where the letter is a mere proposal.1 - When a guaranty is limited to a single transaction, then a notice of such transaction by the guarantee to the guarantor is equivalent to a notice of the acceptance of the guaranty. - But when there is a continuing guaranty, it is necessary (in addition to the notice of acceptance, when that is requisite) that the guarantor should have reasonable notice of the amount of the credit given;2 though it is otherwise when the guaranty goes to a liquidated contract, of which the guarantor has notice.3 sec 570 a. Unless the right is expressly reserved in the contract, a guarantor of a fixed liability is not entitled, as a condition precedent to the maturing of his indebtedness, to notice of the default of the principal debtor,4 though it is otherwise when notice is expressly stipulated.5 The same distinction is a fortiori applicable to contracts for indemnity.6 But by notifying A., who has agreed to indemnify B. from an impending claim, that the claim has been made, and by calling on A. to come in and defend, A. may be subsequently estopped from maintaining that the claim was not properly made or properly defended.1 - A continuing guaranty, with fluctuating liabilities, stands on a different position with regard to notice, from a guaranty for a fixed sum. In the latter case notice of default need not be given, for the liabilities of all the parties are fixed; but it is otherwise with continuing liabilities which are subjected from the nature of things to uncertainty.2 - And when a guarantor servant, the guarantor is relieved.1 But there must be negligence imputable to the guarantee, and consequent loss to the guarantor, in order to enable the latter to make want of notice a defence to a suit by the former.2 - "A surety is not discharged from liability by the mere fact that the principal is continued in the master's employment after he has failed to make his payments promptly, of which fact the surety has not been advised."3

And so as to notice of default.

Orne, 37 111. 186; Wilcox v. Draper, Sup. Ct. Neb. 1881, 25 A. L. J. 209; Shewell v. Knox, 1 Dey. L. 404; Law-ton v. Maner, 9 Rich. L. 335; Claflin v. Briant, 58 Ga. 414; Rankin v. Childs, 9 Mo. 673; and cases cited supra, and citations in Brandt on Suretyship, sec 157.

1 Oates v. Weller, 13 Vt. 106; Kay v. Allen, 9 Barr, 320; Kellogg v. Stockton, 29 Penn. St. 460; Kincheloe v. Holmes, 7 B. Mon. 5; McCollum v. Cushing, 22 Ark. 540.

2 Douglass v. Reynolds, 7 Pet. 113; Wildes v. Savage, 1 Story, 22; Howe v. Nickels, 22 Me. 175; Clark v. Remington, 11 Met. 361; Babcock v. Bryant, 12 Pick. 133; Thomas v. Davis, 14 Pick. 353; Montgomery v. Kellogg, 43 Miss. 486.

3 See Protection Ins. Co. v. Davis, 5 Allen, 54; Bushnell v. Church, 15 Conn. 406; Kirby v. Studebaker, 15 Ind. 45.

4 Supra, sec 254; Leake, 2d ed. 646; Sicklemore v. Thistleton, 6 M. & S. 9; Lilley v. Hewitt, 11 Price, 494; Price v. Kirkham, 3 H. & C. 437; Walton v. Mascall, 13 M. & W. 452; Cooper v. Page, 27 Me. 73; Gibbs v. Cannon, 9 S. & R. 198; Leech v. Hill, 4 Watts, 448; Voltz v. Harris, 40 111. 155; Kline v. Raymond, 70 Ind. 271; Bowman v. Curd, 2 Bush, 565; Forest v. Stewart, 14 Oh. St. 246; see Brant on Suretyship, sec 168 et seq.

5 Lawrence v. Walmsley, 12 C. B. N. S. 799; Duncan v. Heller, 13 S. C. 94.

6 Duffield v. Scott, 3 T. R. 374.

[sec 570 a.

1 Leake, 2d ed. 646; Duffield v. Scott, 3 T. R. 374; Jones v. "Williams, 7 If. & W. 493; Parker v. Lewis, L. R. 8 Ch. 1058.

2 Thus in a case in 1881 in Iowa the action was on a bond executed by L. as principal and the other defendants as sureties, conditioned that L. should pay a corporation all his indebtedness to it, existing or afterwards to exist, whether upon notes, accounts, or in any manner, either party having the right to terminate the contract at pleasure. The bond was executed upon L. becoming agent of the corporation for the sale of sewing-machines. Beck, J., in giving the opinion of the court, said: "The controlling question in the case, and the only one argued by counsel, involves the correctness of the court's ruling in holding that defendants are not liable for the reason that notice was not given them of the extent of L's. liability within a reasonable time after his agency was terminated, and his indebtedness fixed by his settlement with plaintiff. The ruling of the court, we think, is correct, and in accord with Machine Co. v. Mills, 55 Iowa, 543; S. C, 8 N. W. Rep. 356. We held in that case, 'where the guaranty is a continuing one, and the parties must have understood their liability thereunder would be increased and diminished from time to time, and the guaranty is uncertain as to when it will cease to be binding upon the guarantor, and when the party indemnified has the power at pleasure to annul and put an end to the contract guarantied, without the knowledge of the guarantor, he is entitled to notice, within a reasonable time after the transactions guarantied are closed, of the amount of his liability thereunder.' It will be observed, upon considering the statement of the terms of the contract guarantied, that they are within this rule, and that under it the defendants in this case are not liable, in the absence of the notice contemplated therein. But counsel for plaintiff, in an ingenious argument, attempt to distinguish this case from Machine Co. v. Mills. They insist that while the contract in that case was a guaranty, in this case defendants are not guarantors, but are sureties for L., and are jointly liable with him upon an original contract. The error of this position is apparent. L. was or was about to become indebted to plaintiff upon the contract under which he was appointed agent. Defendants were not bound upon that contract. Neither were they bound upon the notes, accounts, acceptances, or upon any contract upon which L. became indebted to plaintiff. They became first and only bound upon the bond, whereby they guarantied that L. would pay his indebtedness to plaintiff in whatever form it assumed. A guarantor becomes bound for the performance of a prior or collateral contract upon which the principal is alone indebted. A surety is bound with the principal upon the contract under which the principal's indebtedness would be prejudiced by want of notice of his principal's default, and the guarantee was advised of this default in time to give notice, then notice should be given of the fact, and of the intention to hold the guarantor responsible in all cases in which the liability of the guarantor is not direct, but is dependent on the default.1 In case of a continuing guaranty of a servant, if the servant is guilty of dishonesty, and the master does not notify the fact to the guarantor, but retains the arises. This is a familiar doctrine of the law. Upon applying it to the facts of the case, it will be seen that defendants are guarantors, and not sureties, for the performance of the contract upon which L.'s indebtedness to plaintiff arose. They were therefore entitled to notice, under the rule of Machine Co. v. Mills. It may be observed that guarantors are often called sureties. We use the term 'sureties,' in the foregoing discussion, to describe one who is bound by a contract with his principal - who joins with his principal in the execution of the contract, and becomes pecuniarily liable thereon. But, as we have seen, a guarantor - the surety in a contract of guaranty - is not primarily liable upon the principal's contracts, and only becomes liable upon his default. A guarantor, under this rule, is entitled to notice of the amount of his liability within a reasonable time after that liability is determined by the transaction between the original debtor and creditor." Singer Mfg. Co. v. Littler, 12 Rep. 777. Watertown Ins. Co. v. Simmons, 131 Mass. 85, was an action upon the surety bond of an agent of an insurance company. The evidence showed that the agent rendered his accounts regularly until December, 1877, when he failed to pay the balance due the company, and that thereafter his indebtedness increased monthly until March, 1879, when he died, owing a balance larger than the bond. The company did not give notice to the surety of the default until after this time, and the surety did not know of it. It was held that it was not the company's duty to notify the surety of the default within a reasonable time, and the failure to do so was not laches discharging the surety. There is no rule of law, so it was argued by Morton, J., giving the opinion, which makes it a duty which the creditor, under the circumstances of this case, owes to the surety either to dismiss its agent or to notify the surety of his default. It is the business of the surety to see that his principal performs the duty which he has guaranteed, and not that of the creditor. Wright v. Simpson, 6 Ves. 734; Adams Bank v. Anthony, 18 Pick. 238; Taft v. Gifford, 13 Mete. 187. The surety, it was held, is bound to inquire for himself, and cannot complain that the creditor does not notify him of the state of the accounts between him and his agent for whom the surety is liable. Mere inaction of the creditor will not discharge the surety, unless it amounts to fraud or concealment.