In this case, it is objected to the Plaintiff’s recovery, that he did not give to the guarantors early notice, that he looked to them for payment; and the cаse, of McIver v. Richardson, ( 1 Maule & Selwyn, 557) is relied upon. In that rase, Lord Ellenhorough says there was only an offer to guaranty, not a complete guаrantee, and on that ground the case was decided. But in this case the guarаntee is complete, and the parties so contemplated it, for it, wаs their understanding of it, that Bnrgess should procure the goods upon it before he returnеd, and in fact he did. so.
But the Defendant and Muse, had notice that their guarantee was relied upon for payment; and this is evidenced from Knox’s letter. At what time the notice was recеived, does not appear. But if’the Defendant thought it important, .he had it in his pоwer to show' it, by producing tl^c letter. This he has not thought proper to do. Besides Burgess and Jordan resided in Elizabetli City, where, or near to which, it may be inferred that the Defendant аnd Muse also lived. For Knox’s letter bears date at that place, and it appears from that letter, that Knox had a knowledge of their situation, when he informed the Plaintiff of the shipment of wheat, as a mean of payment. It may therefore be taken for grаnted, that they had notice, and had it in their power to secure themselves against loss, in case it was practicable.
It appears that the Plaintiff made an effort to procure payment from Burgess in the fall of 1823, but failed in effeсting it; that in that fall, or the winter following, Burgess and Jordan became insolvent.
*412 No objection was made on the trial, or evidence offered 'Kh<>w’ that an injury was sustained, either for the want of <‘ariy notice to (he guarantors, that they werе looked c01, payrocnt, or that the Plaintiff had been guilty of neglect or lаches in not endeavoring to procure payment from Burgess and Jordan.
This case is not tо be tested by principles which govern negotiable instruments, but by principles of fаir dealing and common sense. If no loss was sustained for want of early notice, such notice need not be proved. If no loss was sustained by not suing Burgess as d Jordan, it was unnecеssary to bring suit. This is established by the case of Warrington v. Furbor, (8 East 246 —Williams v. Collins, 2 Mur. 47—1 Law Repos. 580 —Oxley v. Young, 2 Hen. Bl. 613 —Peel v. Tatlock, 1 Bos. &. Pul. 419).
This cannot be taken as a guarantee, but as a proposition for one, inasmuch as the address was general to the mercantile world, and not specific (o any one individual ; it was therefore incumbent upon the person, who delivered goods upon the faitii of the letter, to give within reasonable time, notice to the persons making thе engagement. The guarantee became liable in point of law to mаke, reasonable efforts to recover tlie money, and the guarantоrs became fjound that those exertions should prove successful. That a notice was given at some time, appears manifestly from the answer written to the Plaintiff, in relation to the letter to Muse, by the production of which, the Defendаnt might have shown when it was given, and the non-production of which furnishes a presumption, that in point of fact, the notice was given in due time.
.The question whether due. еxertion would have procured satisfaction from the debtor, was not discussed in the Court belosv, as may be inferred from the record ; the propriety therefore of granting a new trial, or of refusing it, depends on whose duty it was to bring that subject before the Court, and we think it was the duty of *413 the Defendant, for clearly it was a ground of defence, that due exertion had not been made, and not the ground of a charge, that it had been made.
If the Defendant can show that the debt hаs been lost through the. Plaintiff’s neglect, it is an answer to this action, because thе. Defendant undertook fur no more.
As to the. Plaintiff’s discharging one of the principal debtors, when arrested in New York, .it must be taken for granted, that no loss was sushiined by thе Defendant, for he has shown none j the law does not in this case, as in negotiаble instruments, require any specific, acts of diligence,but pnts the question on brоad and iiheralground of reasonable exertions, and loss through the want of them. If we could collect from the case, that, these grounds of defence were offered to tiie Court, and overlooked by it, we. should be disposed for that reason, to award a new trial, but this does not appear, and we must refuse it. t
Per Curiam. — Judgment affirmed.