Peters, J.
The declaration contains seven counts. The object of the pleader in ringing so many changes on a plain, concise written contract, is not apparent. I mention this circumstance merely to express the regret I feel, when called to witness a departure from the simplicity of our ancient practice, so much better calculated to administer speedy and substantial justice, than the labyrinths of British models, which are as useless to us as the titles, the robes and the wigs of their reverend Judges.
To support this declaration, the plaintiffs gave in evidence a letter from the defendant in these words : “ Messrs. Rapelye & Purdy; Gentlemen, My brother Roswell is wishing to go *443into business in JVezo- York, by retailing goods in a small way. Should you be disposed to furnish him with such goods as he may call for, from 300 to 500 dollars worth, I will hold myself accountable for the payment, should he not pay, as you and he shall agree. Roger Bailey.” This the defendant contended was a collateral, and not a direct undertaking, and did not entitle the plaintiffs to recover, without averring and proving a special notice ; and requested the judge so to instruct the jury. But the judge informed them, that this letter was “ a direct and an original undertaking,” meaning, as I understand the motion, that it rendered the defendant liable as principal, and not as guarantor. By the terms of this letter, Roswell Bailey was to become the purchaser and debtor, and the defendant a mere surety ; and his contract, when accent/, was literally and strictly a guaranty. “ I will,” said the defendant, “ hold myself accountable for the payment, should he not pay, as you and he shall agreed’ The acceptance of this proposition, the amount of credit given under it, the time and terms of payment agreed on, were never made known to the defendant, until the commencement of this suit. The averment “ whereof the defendant had due and legal notice,” is insufficient; it is no more than licet scepius requi-situs ; and would have been cause of demurrer, and not of a new trial, were it not for the rule, that such defects are cured by verdict. But where notice and request are by law necessary, there the general averment will not be sufficient, but it must be particularly set forth, that the court may judge whether the notice or request was sufficient. 1 Chitt. Plead. 319. Wallis v. Scott, 1 Stra. 88. Thus, in Pack v. Methold, Pop. 160. the opinion of the court was strongly, “that the plaintiff ought tq have alleged the request specially and certainly, in time and place, because the fact is traversable.” In Peel & al. v. Tatlock, 1 Bos. & Pull. 419. Eyre, Ch. J. seems to have been of opinion, that in guaranties for good behaviour, notice of any embezzlement ought to be given in a reasonable time ; and in Russell v. Clark's exrs. 7 Cranch 69, it was distinctly holden, by the supreme court of the United States, that if the contract in that case had been a guaranty, it would have been the duty of the plaintiff to give immediate notice to the defendant of the extent of his engagement. I, therefore, think, that the judge ought to have directed the jury, to *444find for the defendant, unless it was proved, that he bad such notice.
If this reasoning he correct, a new trial must be granted. the motion presents other grounds. The letter in question proves neither count in the declaration.
I take the law to be settled, that where there is an express contract, it extinguishes the implied one. Shelton & al. v. Darling, 2 Conn. Rep. 435. In Cutter v. Powell, 6 Term Rep. 320. 324. Lord Kenyon says, “ That where the parties have come to an express contract, none can be implied, has prevailed so long as to be reduced to an axiom in the law.’ And the defendant ought to have notice by the declaration, that he is sued upon it. Weston v. Downes, Doug. 23. And eyery such contract must be proved as laid. Gwinnet v. Phillips, 3 Term Rep. 643. 646, Bristow v. Wright, Doug, 640. Anon. 1 Ld. Raym. 735. Saxton & al. v. Johnson, 10 Johns. Rep. 418. Thompson v. Jameson, 1 Cranch, 282. Phill. Ev. 168.
The letter in question furnishes evidence of an express contract; and, therefore, does not support a general indebita-tus assumpsit, as laid in the fourth, fifth and sixth counts.
It is a collateral undertaking to pay, if the debtor did not; and, therefore, did not authorize the plaintiffs to make their charge to the defendant directly, as laid in the third count.
The two first counts, being special, must be proved as laid.
In the first, it is averred, that the defendant promised to be answerable for the money, at the proper time of payment. But the defendant said, “ I will hold myself accountable for the payment, should he not pay, as you and he shall agree.” In the second count, it is averred, “ that the defendant prom, ised, that said money should be regidarly paid, as said Roswell should agree,” absolutely. But the promise is conditional.
The seventh count not only sets out a contract variant from the guaranty, but a waiver or extinguishment thereof, by a new obligation from the principal debtor. This, according to the civil law, whence most of our principles relative to contracts are derived, is a discharge of the guaranty. Thus saith Pothier, Treatise on Obligations, part 2. c. 6. “ As suretyship is an accessory obligation to that of the principal debtor, the extinction of the principal obligation carries with *445it the extinction of the suretyship also, likewise, the security is discharged, by the novation that ⅛ «nade of the debt; for the security earn no longer be ¡bound for the first debt, for which he became security of the debtor, since it no ’ longer exists, having been extinguished by the novation.” Though this is not a common law authority, “ the greatest portion of it,” according to Sir William Jones, “ is law at Westminster, as well as at OrleansThe same doctrine is laid down by Domat, lib. 3. tit. 4. sect. 5. “ If the debt is innovated, between the creditor and the debtor, without the surety’s obliging himself anew, his obligation does not subsist any longer.”
1 advise a new trial.
The other Judges were of the same opinion, except Hosier, Ch. J., who, having been absent when the case was argued, gave no opinion.
New trial to be granted.