A contract to make good certain notes on another, received in payment for property sold by plaintiff to the defendant, provided the maker of such notes was not good for them at a certain day thereafter, is not within the meaning of the statute for the suppression of fraud.
NASH, C.J.
There is no error in the charge below. The contract sued on is in the nature of a guarantee under special circumstances. The plaintiff sold a slave the defendant, and took from him two bonds, or notes, executed by E. P. Guion to the defendant. The notes were transferred without endorsement. At the time of the transfer Guion was in doubtful circumstances, and it was a part of the agreement in respect to the notes, that plaintiff should not sue Guion upon them until after six months had expired, or there abouts; at the end of this time, if the bonds were not paid, the plaintiff was to go to the defendant and tell him of it, and the defendant would then instruct the plaintiff what to do with them. The contract was made in January, 1852. An action was brought by the plaintiff upon the bonds, in Sep't., 1852. Judgment was obtained and execution issued, and was duly returned nulla bona. The plaintiff waited six months before bringing his action on the bonds; and, at the end of that time, notified defendant that Guion had failed to pay, and the defendant gave him no instruction what to do with the bonds. This is not a contract which comes within the Act for the suppression of fraud; for, though it is in some sense to answer for the debt of another, yet it is strictly the debt of the defendant himself, arising upon a new and original consideration, of loss to the plaintiff and benefit to the defendant. Ashford v. Robinson, 8 Ire. Rep. 116; Farmer v. Rispass, 11 Ire. Rep. 172. In every particular the plaintiff complied with his part of the contract. He gave to the defendant the required notice of the failure of Guion to discharge the bonds, and his cause of action then arose, as the defendant gave him no instruction as to his future movements upon them. Nor is the plaintiff's right of action at all affected by not suing the defendant sooner, or by not suing Guion sooner. But the defendant has suffered no loss by the delay. for the case shows that Guion was entirely insolvent at the time the contract was made, and has remained so ever since; and that before the six months expired, he had made an assignment of all his property to pay other creditors.
There is no error, and the judgment is affirmed.
PER CURIAM. Judgment affirmed.