Ashton v. Bayard

The opinion of the court was delivered, by

Sharswood, J.

This case is on all fours with Allen v. Hubert, 13 Wright 259. There the words, “ I agree to become security for the faithful performance of the above agreement,” were held to create a contract of suretyship — not of guaranty. Here the words are “ I hereby become the security of S. Coulter for the fulfilment of the within obligation.” There is no substantial difference in the language of the two contracts.

It is supposed that Gilbert v. Henck, 6 Casey 205, is at variance. But the question of the character of the contract was not made or decided in that case. As is well remarked by Mr. Justice Strong in Allen v. Hubert, it was not necessary to determine whether the instrument sued upon was an engagement of suretyship or of guaranty. The court below had there held that the plaintiffs had given evidence of legal diligence when he showed that the principal debtor had been pursued to judgment and a return of nulla bona, and that ruling was affirmed by this court. There is nothing to overrule in Gilbert v. Henck, but the opinion expressed by Mr. Chief Justice Lowrie, an opinion which cannot stand the test of comparison with Amsbaugh v. Gearhart, 1 Jones 482; Marberger v. Pott, 4 Harris 9; Sherman v. Roberts, 1 Grant 261; Campbell v. Baker, 10 Wright 243; Allen v. Hubert, 13 Id. 259; Reigart v. White, 2 P. F. Smith 438.

Judgment affirmed.