Encyclopaedia Britannica, 11th Edition, "Groups, Theory of" to "Gwyniad": Volume 12, Slice 6Various
Science
Encyclopaedia Britannica, 11th Edition, "Groups, Theory of" to "Gwyniad": Volume 12, Slice 6
Various
Encyclopedias and dictionaries
The discharge of a surety from liability under his guarantee may be
accomplished In various ways, he being regarded, especially in England
and America, as a "favoured debtor" (_per_ Turner, L.J., in _Wheatley_
v. _Bastow_, 7 De G. M. & G. 279, 280; _per_ Earl of Selborne, L.C., in
_In re Sherry--London and County Banking Co._ v. _Terry_, 25 Ch. D., at
p. 703; and see Brandt on _Suretyship_, secs. 79, 80). Thus, fraud
subsequent to the execution of the guarantee (as where, for example, the
creditor connives at the principal debtor's default) will certainly
discharge the surety. Again, a material alteration made by the creditor
in the instrument of guarantee after its execution may also have this
effect. The most prolific ground of discharge, however, is usually
traceable to causes originating in the creditor's laches or conduct, the
governing principle being that if the creditor violates any rights which
the surety possessed when he entered into the suretyship, even though
the damage be nominal only, the guarantee cannot be enforced. On this
subject it suffices to state that the surety's discharge may be
accomplished (1) by a variation of the terms of the contract between the
creditor and the principal debtor, or of that subsisting between the
creditor and the surety (see _Rickaby_ v. _Lewis_, 22 T.L.R. 130); (2)
by the creditor taking a new security from the principal debtor in lieu
of the original one; (3) by the creditor discharging the principal
debtor from liability; (4) by the creditor binding himself to give time
to the principal debtor for payment of the guaranteed debt; or (5) by
loss of securities received by the creditor in respect of the guaranteed
debt.
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