#### Henry Smith *v.*James Morgan.

A guaranty of “ a note and judgment against A. and B.” is satisfied by a joint note of both, upon which judgment has been entered against one.

Assumpsit, upon the following guaranty:

*“*I, *James*Morgan, assign the note and judgment *“*against *Henry*and *John*Wilkes, of the town and county “ of Halifax, which was made payable to me for the “ sum of g3,350, dated 15th February, 1823, to *Henry “ Smith,*and I, the said *James*Morgan, do guarantee <•' unto the said *Smith*that the aforesaid note and judg- “ ment is good. March 4th, 1823.”

*Plea*— Non *assumpsit.*On the trial, before Daxiei;, Judge, at Northampton, on the last Spring Circuit, the *512case was as follows: At the time of making the guaranty, *Henry Wilkes*had confessed a judgment to the defendant, but *John Wilkes*was not a party to it; *John Wilkes*was (pen perfectly solvent, and had a suit been brought against him then, or at any time before his death, in December, 1823, the debt mentioned in the guaranty would have been paid. Had an execution then issued to the counties of Bertie and Martin, against *Henry Wilkes, it*would have been satisfied, as he liad property in those counties. Suit was not brought against John *Wilkes*until eleven months after the qualification of his administrator ; it was brought in the name of the defendant, but whether it was prosecuted by him or the plaintiff, did not appear; within ten days after the date of the guaranty, the attorney who obtained the judgment against *Henry*Wilkes, asked the plaintiff if he wished process to be issued against *John Wilkes,*but was informed that his, the plaintiff’s own attorney, would attend to the business for him.

The agent of the plaintiff, deposed, that learning there was no probability of having an execution in the hands of the sheriff of Halifax satisfied out of the property of *Henry Wilkes,*he had given the defendant notice of it, and that the plaintiff looked to him upon the guaranty ; that upon receiving this notice, the defendant promised to attend to the collection of the debt, and threatened to make the money out of the sheriff, who he said had subjected himself; whether this notice and conversation took place in November, 1823, or February, 1824, did not distinctly appear.

For the plaintiff, it was contended, that the defendant in his guaranty had stipulated that there was a judgment against *Henry*and *John Wilkes,*and that as it turned out that there was a judgment against *Henry*only, this was not.a compliance with its terms. But the judge l’uled otherwise. The counsel for the plaintiff in his address to the jury, contended, that if the conversation deposed toby the plaintiff’s agent, took place in November, 1823, before, the plaintiff had been guilty of neglect in collecting the debt, it amounted in law, to an agreement on the *513part of the defendant, to attend to the collection of the debt himself, and discharged the plaintiff from all obligation to take any further steps for that purpose ; that if it took place in February, 1824, the counsel admitted the plaintiff then to have been in default, but contended, that if the defendant at that time, was fully acquainted with all the facts touching the state of the debt, and the steps taken for its collection, his undertaking amounted to a waiver of any advantage by reason of the laches of the-plaintiff; and for this, the counsel referred the jury to his Honor.

The judge charged the jury, that if the defendant had promised to pay the debt, with a full knowledge of the circumstances, he was bound by that promise, and could not object to the neglect of the plaintiff; but if he only agreed to assist the plaintiff in the collection of the debt, the latter was not thereby discharged from his obligation to use reasonable diligence in prosecuting the claim against the principal debtors, and that if he failed in using such diligence, he could not recover in this action.

A verdict was returned for the defendant, and the plaintiff appealed.

*Gaston*and *Badger,*for the plaintiff.

*Hogg, contra.*

Henderson, Chiefs Justice.

The matter assigned

as the first breach, if there be any thing in it, goes to vacate and annul the contract, and is not within the stipulation of the guaranty, that the debt was good_ But the words “note and judgment” arc amere description of the thing sold, and no part of the guaranty, and are not false in fact; for there could not be a note and judgment, against both *Henry*and *John Wilkes,*for the same debt, at the same time j and especially if the note on which the judgment is obtained, precede the judgment, for in such case the note is merged in tho judgment. The description imports just such a thing as there is, viz: in a jointnote taken against both, reduced to a judgment against one. But if it was a false description, and thereby the contract was vacated, and even if *514a count annulling a contract could be. joined with one enforcing the same contract; yet the plaintiff, by receiving the thing with a full knowledge of what it *was,*an(] retaining it so long, admits that it was in substance the thing purchased, and waives his right of vacating the agreement.

An undertaking by the guarantee collection ofadebt he is hound for, laches hi ilie party guaranteed,.

As little ground is there to support the objection taken to the charge of the judge below ; although it is admitted that the charge did not *meet the*view of the plaintiff’s counsel, and although if the evidence,made the point, either by positive proof, or by an inference -which the jury could draw, the judge should have declaimed the law upon it. I allude to the reference made by the counsel of the plaintiff, in his address to the jury, to the judge, as a matter of law, for him to decide, that if the conversation (with the agent) took place before *Smith*had been guilty of neglect, it amounted in law to an agreement on the part of *Morgan*to attend to the collection of the debt out of *FFilkes,and*discharged *'Smith*from faking further steps in relation thereto. 1 do not know that I catch the counsel’s idea, but take it either way, it caunpt benefit the plaintiff. In the first place, there is nothing like the sole undertaking of its collection by *Morgan..*This engagement amounted to nothing more, than that he would give his aid, and by consequence did not discharge *Smith.*Now if the collection of the debt ivas of such a nature, that two could not act in it, that the aid of one necessarily prevented the other from acting at all — if there be such a slate of tilings; then, if *Morgan*undertook to act, or even to aid, and if this necessarily prevented *Smith*from acting, surely the agreement by *Morgan,*to attend to, to aid, or assist in the collection of the debt, necessarily discharged *Smith:*— discharged him I say, if necessarily the aid in attending to the debt prevented, that is, rendered it impossible for *Smith*to act in the matter. But I cannot see bow ^ rendered it impracticable for *Smith*to act a]s0. As a question of law, I should therefore say, that ^ before *Smith*had been negligent, *Morgan*had promised to attend to the collection of the debt, that-iSmifA

*515was not thereby discharged, unless *Morgan*by words discharged him *;*his agreement to attend to it, did not have that operation, unless he had taken upon himself the exclusive collection of it. As to the express promise, the judge ruled that a promise of any kind, either expressed or implied, would bind *Morgvn,*if made with a full knowledge that *Smith*had by his negligence discharged him. The charge was certainly as favorable to the plaintiff, as the law warranted ; nor do I perceive any impropriety in tho judge’s pointing out the difference between a promise to pay, and a promise to assist in the collection of the debt. Taking the conversation to be either before *Smith’s*neglect, or after, then he can claim nothing from it either in law or fact. If before, it did not amount to any thing like a discharge to *Smith*from further diligence : — if, after there was nothing in it like a promise, so far from it,- that if the jury had found for the plaintiff on that ground, the judge ought to have set aside tho verdict as being against the evidence. The fact is, the sum is largo, and the plaintiff when lie brought this suit calculated on tho chances. It is a most groundless claim.

Feu Curiam. — Judgment appirmed.