#### PETERS P. SPENCER, administrator, v. DAVID CARTER.

The notice given to a guarantor that he is looked to for the debt guarantied, must be positive and unconditional. ,

*288AotioN of Assumpsit, tried before his Honor, Judge Bailey, at the Spring’ Term, 185J, of Hyde Superior Court.

This was an action brought against the defendant, as the guarantor of a note made payable to him by one Jesse E.. Williams, which was passed by him to the plaintiff’s intestate, and guarantied to the said intestate. The defense, among other things, was that the defendant had no such notice of the default of Williams, as would make Mm liable. On this point, the plaintiff introduced Mr. B'eclmiih, who testified that Jesse E. Williams died intestate, about the 20th of February, 1853; that he was the attorney of the plaintiff’s intestate, and was employed by him to collect the note from Williams; that plaintiff’s intestate died in August, 1853, and he was also the legal adviser of the plaintiff, as administrator; that, at the Spring Term, 1853, of the Court of Equity of Hyde County, a bill was filed by one Chapman, claiming to be a copartner in trade with the said Williams ; that, in November, 1853, while this suit in Equity was pending, in a conversation with defendant in relation to it, witness told the defendant that, if Chapman prevailed in that suit, the assets in the hands of Williams’ administrator would be exhausted, and that he, the defendant, would be looked to on his contract of guaranty ; but in the event that Williams’ administrator prevailed, that estate would be sufficient to pay the note, and he would not be looked to.

His Honor being of opinion with the defendant on the question of notice, nonsuited the plaintiff, who appealed to this Court.

No counsel appeared for plaintiff in this Court.

Donnell, for defendant.

Nash, C. J.

The defense is put upon two grounds. The first is that no notice was given by the plaintiff to the defend•ant of the failure of his principle to pay the debt which he had guarantied. The second, that the delay in the demand had discharged his liability. It is unnecessary to consider *289the second ground of defense, as our opinion is put upon the first.

A guaranty is a promise to answer the payment of some debt, or the performance of some duty by another, who is himself first liable. To fix the- guarantor, and to entitle the plaintiff to sustain his action, he must make a demand upon the principal, and upon his refusal or neglect, give the defendant notice, within reasonable time, of the fact, and that he is held liable. Notice is, in law, a part of the agreement, and before it is given, the debt does not arise. It must be averred in the declaration and proved. Parsons on Contracts, 514; Grice v. Ricks, 3 Dev. 62.

As to the notice here, what is the evidence ? Mr. J3eck-with, the legal adviser of the plaintiff, told the defendant that a bill in Equity had been brought by one Chapman against the administrator of "Williams, claiming to have been a partner with him, and that if Chapman obtained a decree in his favor, the assets in the plaintiff’s hands would be exhausted, and he, the defendant, would be looked to upon his guaranty; but in the event that Williams’administrator prevailed in the suit, then the noté would be paid by the administrator. This certainly was not notice, in contemplation of law, .to the defendant that he was looked to. On the contrary, he is told that, if the suit by Chapman went in favor of the estate of Williams, there would be assets to pay the debt, and if it went against Williams, there would not be; and in that event he wouldloe looleed to. This was during the pendency of the suit in Equity, and no notice, as far as the case discloses the fact, was ever given to the defendant, of its issue. The notice to which the guarantor is entitled, to sustain an action against him on the guaranty, must be positive that he is looked to, and held liable on his guaranty. His Honor was of opinion that there was no legal notice proved. In this there was no error.

Pbb Cubiam. Judgment affirmed.