I Q.B

288. “One test is if the promisor is totally unconnected with the transaction except by means of his promise to pay the loss, the contract is a guaranty; if he is to derive some benefit from it, his contract is an indemnity.” Id. The word guaranty or surety may or may not indicate correctly the contract, and the circumstances of the case may make an indorser liable as a guarantor or surety, without any words to indicate the obligation; Ketchell v. Burns, 24 Wend. (N. Y.) 456. In general, if a promissory note is signed or indorsed when made by a stranger to the note he becomes a joint promisor and liable on the note; Childs v. Wyman, 44 Me. 433, 69 Am. Dec. Ill; Riley v. Gerrish, 9 Cush. (Mass.) 104; Schneider v. Schiffman, 20 Mo. 571; and this will be true if indorsed after delivery to the payee in pursuance of an agreement made before the delivery; Hawkes v. Phillips, 7 Gray (Mass.) 284; but parol evidence may be introduced to show that he is a surety or guarantor; Fraser v. Mc Connell, 23 Ga. 368; Eberhart v. Page, 80 ill. 550. If the third party indorses after delivery to the payee without any previous agreement, he is merely a second indorser; Taylor v. M’Cune, 11 Pa. 466; Hoffman v. Moore, 82 N. C. 313; and he is liable as a maker to an innocent holder; Page v. Lathrop, 20 Mo. 591. But it was held otherwise where the signature was on the face of the note; Sargent v. Robbins, 19 N. II. 572; and the same is held where he signs at inception of the note, in pursuance of a custom, leaving a blank for the payee’s signature above his name; Weaver v. Marvel, 12 La. Ann. 517. Such an indorser is held to guaranty that the note shall be collectible when due; Gillespie v. Wheeler, 46 Conn. 410. The time of signing may be shown by parol evidence; Bright v. Carpenter, 9 Ohio 139, 34 Am. Dec. 432. A payee or subsequent party who executes a guarantee upon a bill or note is not liable as indorser; Davis v. Campbell, 3 Stew. (Ala.) 319; Springer v. Hutchinson, 19 Me. 359; contra, Vanzant v. Arnold, 31 Ga. 210; Partridge v. Davis, 20 Vt. 499. It has been held that a third person indorsing in blank at the making of the note may show his intention by parol; Moies v. Bird, II Mass. 436, 6 Am. Dec. 179; but not if he describes himself as guarantor, or if the law fixes a precise liability upon indorsements in blank; Sea bury v. Hungerford, 2 Ilill, (N. Y.) 80. But this has been doubted; 33 E. L. & E. 282. In New York the cases seem to take the broad ground that an indorser in blank, under all circumstances, is an indorser merely, and cannot be made a guarantor or surety; Spies v. Gilmore, 1 N. Y. 324. See Good ise to pay the debt of another must be such as would be good relating to the payment oi that particular debt or of any other of equal amount; Thomas v. Delphy, 33 Md. 373. II need not necessarily be a consideration distinct from that of the principal contract. An executed or past consideration to the principal is not sufficient; Pratt v. Hedden, 121 Mass. 116; Clopton v. Hall, 51 Miss. 482. The giving of new credit where a debt already exists has been held a sufficient consideration to support a guaranty of the old and new debt; Loomis v. Newhall, 15 Pick. (Mass.) 159; Hargroves v. Cooke, 15 Ga. 321; but the weight of authority would seem to require that there should be some further consideration; Reed, Stat. Fr. 70; De Woll v. Rabaud, 1 Pet. (U. S.) 476, 7 L. Ed. 227; Sears v. Brink, 3 Johns. (N. Y.) 211, 3 Am. Dec. 475; Elliott v. Giese, 7 Harr. & J. (Md.) 457. A consideration that will take a case out of the statute of frauds must be such a consideration as will make the collateral debt, agreed to be paid, the debt of the promisor. It must be an original undertaking; Waterman v. Resseter, 45 111. App. 155. Forbearance to sue the debtor is a good, consideration, if definite in time; Coffin v. Trustees, 92 Ind. 337; Dahlman v. Hammel, 45 Wis. 466; or even if of considerable time; Cro. Jac. 683; or reasonable time; Board of Directors v. Peterson, 4 Wash. 148, 29 Pac. 995. But there must be an actual forbearance, and the creditor must have had a power of enforcement; 4 East 465. But the fact that it is doubtful whether such a power exists, does not injure the consideration; 5 B. & Ad. 123. Forbearance has been held sufficient consideration even where there was no well-grounded claim; 18 L. J. C. P. 222; Kilns’ Ex’r v. Young, 34 Pa. 60; contra t Cabot v. Haskins, 3 Pick. (Mass.) 83. A short forbearance, or the deferment of a remedy, as postponement of a trial, or postponement of arrest, may be a good consideration; and perhaps an agreement to defer indefinitely may support a guaranty; Livingston v. Roosevelt, 4 Johns. (N. Y.) 257, 4 Am. Dec. 273; Sage v. Wilcox, 6 Conn. 81. A mere agreement not to push an execution is too vague to be a consideration; Mc Kinney v. Quilter, 4 Mc Cord (S. C.) 409; and a postponement of a remedy must be made by agreement as well as in fact; Mecorney y. Stanley, 8 Cush. (Mass.) 85; Sage v. Wilcox, 6 Conn. 81; 11 C. B. 172. The contract of suretyship may be entered into absolutely and without conditions, or its formation may be made to depend on certain conditions precedent. But there are some conditions implied in every contract of this kind, however absolute on its face. In the case of bonds, as in other contracts of suretyship, it is essential that there should be a principal, and a bond executed by the surety to the contrary, Is not clear to the point. The argument that the surety is bound by his recital under seal fails, especially in all statute bonds, where one important requisite of the statute, that the bond should be executed by the principal, fails; Wood v. Washburn, 2 Pick. (Mass.) 24; 4 Beav. 3S3. Where the surety’s undertaking is conditional on others joining, and this condition is known to the creditor, he is not ordinarily liable until they do so; 4 B. & Ad. 440; Hunt v. State, 53 Ind. 321; Goff v. Bankston, 35 Miss. 518; Belleville -Sav. Bank v. Bornman, 124 111. 200, 16 N. E. 210; contra, if the obligee is ignorant of the condition; Millett v. Parker, 2 Mete. (Ky.) 608; Dair v. U. S., 16 Wall. (U. S.) 1, 21 L. Ed. 491; Chase v. Ha thorn. 61 Me. 505. So the surety is not bound if the signatures of his cosureties are forged, although he has not made his signature expressly conditional on theirs; 2 Am. L. Reg. 349; but see 8 id. N. S. 665. Where a bond to a sheriff; Police Jury v. Haw, 2 La. 41; and an administration bond; State v. Gregory, 119 Ind. 503, 22 N. E. 1; were signed in expectation by the party signing that other sureties would sign, and the bond was delivered without such other signatures, the surety was held liable. If a condition upon which a surety signs be known to the creditor and be not complied with, the surety is not liable; Jones v. Kcer, 30 Ga. 93. Where sureties signed a bond in ignorance of the fact that the principal had not signed, they are not bound; School Dist. No. 80 v. Lapping, 100 Minn. 139, 110 N. W. 849, 12