Originally, the words warranty and guaranty were the same; the letter g, of the Norman French, being convertible with the w of the German and English, as in the names William or Guillaume. They are now sometimes used indiscriminately; but, in general, warranty is applied to a contract as to the title, quality, or quantity of a thing sold, which we have already considered under the head of sales; and guaranty is held to be the contract by which one person is bound to another, for the due fulfilment of a promise or engagement of a third party.1 And this we shall now consider.

In general, a guaranty is not negotiable, nor in any way transferable, so as to enable an action to be maintained upon it by any other person than him with whom the contract is made. (a)2

(a) True v. Fuller, 21 Pick. 140; Tyler v. Binney, 7 Mass. 479; Lamourieux v. Hewett, 5 Wend. 307 ; Springer v. Hutchinson, 19 Me. 359; McDoal v. Yeomans,

8 Watte, 361; Canfield v. Vaughan, 8 Mart. (La.) 682; Upham v. Prince, 12 Mass. 14; Miller v. Gaston, 2 Hill (N. Y.), 188; Watson v. McLaren, 19 Wend. 557;

1 As to the difference between guaranty and suretyship, see McMillan v. Bull's Head Bank, 32 Ind. 11. - A guaranty of collection is to the effect that a debt can be collected if an action is brought with due diligence, the debtor's insolvency in some cases excusing a failure so to do. Stone v. Rockefeller, 29 Ohio St. 625; Aldrich v. Chubb, 85 Mich. 350; Brackett v. Rich, 23 Minn. 485; Evans v. Bell, 45 Tex. 553. - Two joint debtors cannot, by an agreement between themselves and without the assent of their creditor, make one the surety of the other instead of a principal joint debtor, so as to deprive the creditor of his right to treat them both as principal debtors. Swire v. Redman, 1 Q. B. D. 536.

2 If a person can enforce the principal debt, he can enforce a guaranty of it Craig v. Parkis, 40 N. Y. 181; Claflin v. Ostrom, 54 N. Y. 581. In Iowa and Michigan, a guaranty is negotiable, and the assignee may sue in his own name. First Bank v. Carpenter, 41 la. 518; Waldron v. Herring, 28 Mich. 493. - A letter of credit is not negotiable. Roman v. Serna, 40 Tex. 306.

It is a promise to pay the debt of another; but the guarantor may be held, although no suit could be maintained upon the original debt; and such guaranty may have been required for the very reason that the original debt could not be enforced at law; as where the guarantor promises to be responsible for goods to be supplied to a married woman, (6) or to be sold to an infant, not being necessaries. (c) But where the original debt is not enforceable at law, the promise to be responsible for it is considered, for some purposes, as direct and not collateral; as, in fact, the original promise. (f) But if an infant purchase necessaries, and give a promissory note signed by himself, and by another as surety, who pays the note, such surety can recover the amount so paid, of the infant. (e)1 In general, the liability

Tattle v. Bartholomew, 12 Met. 452; Tayler v. Binney, 7 Mass. 479; Ten Eyck v. Brown, 4 Chand. 151 ; Tinker v. McCanley, 3 Mich. 188. Although the instrument may be in the form of a guaranty, yet if it contain in itself all the elements of a negotiable promissory note, it is then negotiable. See Ketchell v. Burns, 24 Wend. 456. In this case, the instrument was as follows: "For and in consideration of thirty-one dollars and fifty cents received of B. F. Spencer, I hereby guarantee the payment and collection of the within note to him or bearer. Auburn, Sept. 25, 1837." (Signed) Thomas Burns. And it was held negotiable. In Heed v. Garvin, 12 S. & R. 100, it was held, that a guaranty given by the assignor of a bond runs with it into whosesoever hands it may come, and the guarantor cannot be a witness. See McLaren v. Watson, 26 Wend. 425; Adams c. Jones, 12 Pet. 207; Walton v. Dodson, 3 C. & P. 163; Bradley v. Cary, 8 Greenl. (Bennett's ed.) 234; Phillips v. Bateman, 16 East, 356. If a guaranty is directed to a particular house, by name, and another house advance goods upon it, they have no claim upon the guarantor. Bleeker v. Hyde, 3 McLean, 279 ; Grant v. Naylor, 4 Cranch, 224; contra, see McNaughton v. Conkling, 9 Wis. 317. And if the letter of guaranty is addressed to two persons and received and acted upon by one only, the guarantor is not bound. Smith v. Montgomery, 3 Tex. 199; Myers v. Edge, 7 T. R. 254. But where the guaranty is addressed to no person in particular it may be acted upon by any one, and if such appear to be the intention of the parties, goods may be furnished by several different dealers on the faith of the guaranty. Lowry v. Adams, 22 Vt. 160. And in Vermont it would seem that a guaranty is negotiable. Partridge v. Davis, 20 Vt. 499.

(b) See Maggs v. Ames, 4 Bing. 470; Connerat v. Goldsmith, 6 Ga. 14.

(c) See Conn v. Coburn, 7 N. H. 368. (d) Harris v. Huntbach, 1 Burr. 373, and Reid v. Nash, there cited. See also Buckmyr v. Darnall, 2 Ld. Raym. 1085.

(e) Conn v. Coburn, 7 N. H. 368. In such case, the cause of action arises when the surety pays the note. Upon the point whether such undertaking by the surety is original or collateral, Parker, J., observed: " It is very clear that this note cannot be regarded as an extinguishment of the debt of Coburn, so as to make him immediately liable to the plaintiff upon the giving of the note. The debt arose by the purchase and execution of the note. That was the contract, that he should have the goods on giving the note. The giving of a note, by an infant, for a debt due for necessaries, does not cancel that debt, unless the note be paid (3 N. H. 348); and the giving of such a note, with a surety, certainly does not furnish evidence that the creditor intended to discharge the infant from all responsibility on account of the demand due him by reason of the articles furnished. If the infant is not liable on the

1 A surety upon an "infant's notes for the purchase-money of chattels, who has paid a judgment upon the notes, and received from the infant a note for the sum so paid secured by a mortgage of the chattels, was held entitled to hold the chattels against a subsequent purchaser from the infant with knowledge of the mortgage, in Knaggs v. Green, 48 Wis. 601.