Writ of Error to the Appellate Court for the Third District;—heard in that court on writ of - error to the=Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.

This was an action of assumpsit, brought by T. E. Ells-worth, against A. E. Harmon, in the Champaign circuit' court, to the March term, A. D. 1880, upon his guaranty of a promissory note. The note was executed by John Bauer, on January 1, 1877, and made payable to Lucy M. Shoemaker, in the sum of $2000, five years after its date, with interest at ten per cent, payable semi-annually, evidenced by coupons; and it provided thdt if default should be made in the payment of principal or interest, or any part thereof, for the space of ten days, then, on the election of the holder of the note, the whole of the principal and arrears of interest should become due. This note was secured by a trust deed, in which Harmon, the defendant, was trustee. The defendant, before the delivery of the note, guarantied its payment by an indorsement on the same, as follows:

“For value received, I hereby guarantee the payment of the within note, and coupons thereto attached, to Lucy M. Shoemaker, her heirs and assigns, and agree to collect the same free of charge to her or to them.

Feb. 12, 1877. _ A. E. Harmon. ”

About the 8th of July, 1878, the defendant wrote to the plaintiff, who was then acting as the agent of the payee in the note, that Bauer had made default in the payment of interest. The plaintiff, in reply, wrote to the defendant that the legal holder of the note elected to declare the principal and arrears of interest due, and authorized him to sell the property for the full amount thereof. The defendant thereupon advertised, and sold the property on August 19, 1878. The trustee bid for Mrs. Shoemaker the amount due on the note and coupons, and costs of sale, and struck the same off to her, and made a deed to her, which he had recorded and then transmitted to her. This deed was some time' afterwards returned to the defendant, and notice given that the holder of the note relied on his guaranty, and did not wish to invest in lands. The proof further showed that the defendant assured the plaintiff that he would be able to make a sale of the property in a short time, and realize the money.

Mrs. Shoemaker having indorsed the note to the plaintiff, he brought this suit upon the guaranty, and a trial was had before the court, without a jury. The court found the issues for the defendant, and rendered judgment accordingly, which judgment was affirmed by the Appellate Court, and the case is brought here by writ of error.

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