“ And as we apprehend that shippers of cotton will now turn their attention to other parts of Europe, we think the probability is, that cotton will be in demand in Liverpool by the time the Mac will arrive there, we likewise think it will answer to ship good flour, and probably some good staves can be purchased; we had rather have her loaded on our own account with those three articles, than to take freight for any other port, but we think there can be no doubt, but that when she begins to loan on owners' account, that some considerable freight can be obtained. ”

“ That where there is a doubt arising from the ambiguity of expressions, the acts of the parties may be resorted to as supplementary evidence of their intention. That even supposing their had been a revocation, or modification of the original contract, on the part of the defendant, he is still liable under his subsequent undertaking. No case can be found, where a mere attempt to recover of the principal will discharge the surety. All the authorities are the other way. The drawing the bills on Taber & Son was not a waiver of the defendant's liability. ”

“ Pothier then puts the case, whether the surety be discharged by the creditor's granting to the debtor a delay for the payment, and agrees with Vinnius in holding the negative, for he says, the simple delay, not making the debt appear discharged, deprives the surety of no means of providing for his own safety and the surety cannot pretend that the delay prejudices him, since he himself derives an advantage from it. 7. According to the principles of the ancient civil law, the creditor could demand payment from the surety without first resorting for payment to the principal debtor. ”

“ The Code Napoleon, or civil code, adopts, for the most part, the doctrines stated in Pothier. Liv. 3. tit. 14. art. 2011, &c. to 2043. It declares that a guaranty or suretyship, (cautionnement,) ought not to be presumed; it ought to be express; and ought not to be extended beyond the limits of the contract itself. An indefinite guaranty of a principal obligation extends to all the accessories of the debt. The guarantee is not bound to pay but upon the default of the debtor, who ought, in the first instance, to be sued by discussion, against his goods. ”

“ Where a general authority is given to draw bills from a certain place, on account of advances there made, the undertaking is to replace the money at that place. Had this bill on Barker been negotiated and returned under protest, the holder would have been entitled to demand of the drawer the interest of New-Orleans, and thus incidentally at least, the defendant would have been compelled to pay the plaintiff that interest. ”

“ The surety is discharged, when by the act of the creditor the guarantee cannot have the benefit of a substitution to the rights, hypothecation, and privileges of the creditor. A simple postponement of the time granted by the creditor to the debtor, does not discharge the guarantee, who may, however, in that case, pursue the debtor to enforce payment. ”

“ It is our wish to have two hundred bales of good cotton shipped on owners' account, and as much more as may be necessary to make despatch, as we are not willing to have her detained in your port for freight. To reimburse thyself for the cotton purchased on owners' account, thou may draw bills at sixty days sight, either on Jacob Barker or on us. ”

“ Jacob Barker informed us some time past, that he had given thee directions to ship five hundred bales of cotton on our account, and liberty to ship some flour, which we think may answer well, provided it is good. If freight cannot be obtained, to fill her up with the flour and cotton that Barker hath ordered, we should like to have her filled up with good staves of timber, the growth of your country; but no logwood or mahogany. We much wish to have the Mac depatched for Liverpool as soon as may be.'
On the 6th of March, 1807, the plaintiff wrote J. Taber & Son. ”

“ Where there is a guaranty of advances or supplies, it is necessary in the first instance to make a demand of payment from the original debtor, or at least to use reasonable diligence in endeavoring to make such a demand, and notice of nonpayment must be given in a reasonable time to the guarantee. ”

“ A guaranty, 'we jointly and severally promise to guaranty a payment of 500l. at 5 per cent. say, by a bill drawn on G. H. by D. and F. for 500l. dated 10th of January, 1808,' is to be construed as a general guaranty of the bill, not (as usual) a guaranty that the acceptor should pay, but a contract that either the drawer or the acceptor should pay. Philips v. Astling, 2 Taunt. Rep. 206. But upon such a guaranty (if it is to be construed as limiting the bill to the specific sum of 500l.) the guarantee would not be liable to the extent even of the 500l. if the bill be drawn for a larger sum ”

“ I have since procured a full freight for the Mac at three cents per pound cotton, and she will be despatched in all this month for Liverpool. I shall ship on board for your account, five hundred bales cotton and thirty thousand staves, of which you now may get insurance effected, the amount per invoice will be about 3,400 dollars. I have, since my last, valued upon Mr. J. Barker, for 600 dollars and 10,000 dollars, on account of these purchases, and shall continue to draw as occasion offers. ”

“ An agent in England for merchants the vendors of goods in Russia who guaranties 'that the shipment shall be in conformity with the revenue laws of Great Britain, so that no impediment shall arise upon the importation thereof, or that in default the consequences shall rest with the sellers,' makes himself personally responsible to the vendee. ”

“ John Taber & Son. I hope that you will not be a sufferer, and that you have taken timely precaution. Agreeably to your request, I have written on to Liverpool, but am afraid my letters will come too late, as the Mac sailed from the Balize on the 23d of April, and as she is a good sailer, will no doubt have discharged her cargo before the receipt of my letter. For your government I enclose you invoice and bill of lading of the 500 bales cotton shipped per Mac ”

“ And a guaranty to A. for goods to be sold by him on credit to B. will not enure to the benefit of a third person, who shall actually furnish the goods to B. although at the request of A., for a surety is not to be held beyond the scope of his own engagement. ”

“ That the great fundamental principle, in the interpretation of contracts, is to carry into effect the intention of the parties, and that this principle was peculiarly applicable to commercial contracts. ”

“ The notary also proved, that at the time of presenting the said bills, he offered to the defendant the account and letters herein next stated, which the defendant refused to accept, and desired the notary to take them away, who refused, and threw them on his, the defendant's counter. The bills were accompanied with a letter of advice, mentioning that the first bill was for the balance due for the purchase of the 500 bales of cotton, and the other for disbursements of the ship Mac, and 1500 dollars damages paid on the two drafts of 5000 each on Taber & Son, returned protested for non-payment. ”

“ At the time the letter was written, goods had been supplied to the amount of 66l., and afterwards, another parcel was delivered, amounting together with the former to 124l., all which had been paid for, and the sum now in dispute, (and which by the judgment of the court, the plaintiff recovered,) was for a farther supply to W. P. Mason v. Prichard, 2 Camp. N. P. 436. S.C.. 12 East. 227. So, where the defendant wrote to the plaintiff, 'I have been applied to by my brother, W. W. to be bound to you for any debts he may contract, not to exceed 100l. ”

“ For Paul Lanusse, P. & H. AMELUNG. The defendant then proved, by Gabriel Shaw, of the house of Corp, Ellis & Shaw, of New-York, that the two bills of exchange drawn by Paul Lanusse on John Taber & Son, dated the 20th of March, 1807, were received by Corp, Ellis & Shaw, from Thomas Elmes of New-Orleans, in whose favour they were drawn, about the 27th or 25th day of April in the same year, and were immediately forwarded by him to John Taber & Son, of Portland, for acceptance ”

“ From this defendant's knowledge of said Taber's business he believed that those bills were drawn in payment for the ship Mac's cargo; this being the only information this defendant had of any bills being drawn at New-Orleans on said John Taber & Son, he was induced to accompany the said Gabriel Shaw to his office, to ascertain the particulars ”

“ Whereupon, the defendant then produced in evidence the following account, forwarded to him by the plaintiff, in his letter of the 20th of May, 1807.
Dr. Messrs. J. Taber & Son, in Portland, in account
current with Paul Lanusse.Cr.
1807. 1807. April 13.To amount of 500 Jan.22. By my draft fav. Frasier 1800 bales of cotton as per invoice, $33,098 31 do Stephen Zacharie, 1100 24. Disbursement of do Delaire & Canut, 607 ship Mac, as per do Joseph Thebaud, 1370 account, 5943 69 1-2 Feb. 6. do Jacob D. Stagg, 301 My commission on12. do Samuel Lord, 573 freight procured for 16. ”