Chapter VI: Front Matter (6)

As regards the kind of note or memorandum of the guarantee that will satisfy the Statute of Frauds, it is now provided by S 3 of the Mercantile Law Amendment Act 1856, that "no special promise to be made, by any person after the passing of this act, to answer for the debt, default or miscarriage of another person, being in writing and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit or other proceeding, to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing or by necessary inference from a written document." Prior to this enactment, which is not retrospective in its operation, it was held in many cases that as the Statute of Frauds requires "the agreement" to be in writing, all parts thereof were required so to be, including the consideration moving to, as well as the promise by, the party to be charged (_Wain_ v. _Walters_, 5 East, 10; _Sounders_ v. _Wakefield_, 4 B. & Ald. 595). These decisions, however, proved to be burdensome to the mercantile community, especially in Scotland and the north of England, and ultimately led to the alteration of the law, so far as guarantees are concerned, by means of the enactment already specified. Any writing embodying the terms of the agreement between the parties, and signed by the party to be charged, is sufficient; and the idea of agreement need not be present to the mind of the person signing (_per_ Lindley, L.J., in _In re_ Hoyle--_Hoyle_ v. _Hoyle_, 1893, 1 Ch., at p. 98). It is, however, necessary that the names of the contracting parties should appear somewhere in writing; that the party to be charged, or his agent, should sign the memorandum or note of agreement, or else should sign another paper referring thereto; and that, when the note or memorandum is made, a complete agreement shall exist. Moreover, the memorandum must have been made before action brought, though it need not be contemporaneous with the agreement itself. As regards the stamping of the memorandum or note of agreement, a guarantee cannot, in England, be given in evidence unless properly stamped (Stamp Act 1891). A guarantee for the payment of goods, however, requires no stamp, being within the exception contained in the first schedule of the act. Nor is it necessary to stamp a written representation or assurance as to character within 9 Geo. IV. c. 14, _supra_. If under seal, a guarantee requires sometimes an _ad valorem_ stamp and sometimes a ten-shilling stamp; in other cases a sixpenny stamp generally suffices; and, on certain prescribed terms, the stamps can be affixed any time after execution (Stamp Act 1891, S 15, amended by S 15 of the Finance Act 1895).

Extent of surety's liability.

The liability incurred by a surety under his guarantee depends upon its terms, and is not necessarily co-extensive with that of the principal debtor. It is, however, obvious that as the surety's obligation is merely accessory to that of the principal it cannot as such exceed it (de Colyar, _Law of Guarantees_, 3rd ed. p. 233; Burge, _Suretyship_, p. 5). By the Roman law, if there were any such excess the surety's obligation was rendered _wholly_ void and not merely void _pro tanto_. By many existing codes civil, however, a guarantee which imposes on the surety a greater liability than that of the principal is not thereby invalidated, but the liability is merely reducible to that of the principal (Fr. and Bel. 2013; Port. 823; Spain, 1826; Italy, 1900; Holland, 1859; Lower Canada, 1933). By sec. 128 of the Indian Contract