The opinion of the Court was by
Sheplet J.— The defendant was the guarantor of a bill or draft, which was proved to have been presented and regular notice to have been given to the other parties to it, if the cashier of the bank was a competent witness. The decisions appear to have been uniform, that one so situated is a competent witness, when it does not appear, that he would be liable to the plaintiff, if he fathed to recover against the defendant. «And there was no sufficient proof of it in this case.
When the guaranty is made at the time of the original promise and becomes an essential ground of the contract with the principal, the consideration between the principals to the contract constitutes also a sufficient consideration for the guaranty, *33Leonard v. Vredenburgh, 8 Johns. 29; DeWolf v. Rabaud, 4 Peters, 476. The surrender of the former draft was a sufficient consideration for the present. The contract of guaranty is less favorable for the party making it than that of an indorser ; for whthe it is necessary to notify an indorser, it is not necessary to notify a guarantor, in case of the insolvency of the acceptor. When notice has, as in this case, been regularly given to the guarantor, he may take measures to relieve himself ; and mere neglect to proceed against the principal does not discharge him. In the case of Oxford Bank v. Haynes, the guarantor was discharged by the neglect to notify, and not by the neglect only to proceed against the principal. This guaranty being only for the “ final payment ” of the draft, it is contended that the plaintiff cannot recover without proving, that he has exhausted his remedies against the other parties, or that they were insolvent, when it became payable. In the case of Seaver v. Bradley, 6 Greenl. 60, the guarantor was to to be “ ultimately accountable ” ; and it was contended, that he was not liable until after legal process against the principal had proved to be without effect. The Court say, “ we consider the fair meaning to be, that if He aid should not comply with the terms of his engagement as to the payment for the goods purchased, then on due notice of the advances made on the faith of the guaranty, he would be accountable and pay for such advances not exceeding the limited amount.” If the engagement in this case could be regarded as more favorable for the defendant, it does not in terms require any legal proceedings against the principal, and would be fully satisfied by proof, that the prior parties had become insolvent before the commencement of the suit. The defendant’s liability would become certain and fixed by the proof, that the draft could not be collected of them. In the case of Moakley v. Riggs, 10 Johns. 69, the guaranty, in terms, required the proof of inability to be made out by proceedings in “ due course of law.”
The requested instructions were properly witheld, because they required proof of the inability of the principals to pay to extend to the time when the draft became payable ; and the *34plaintiff was only obliged to prove its existence before the commencement of his suit.' After notice to the defendant the risk of the solvency of the other parties was upon him and not upon the holder. Lord Eldon says, in Wright v. Simpson, 6 Ves. 734, “ but the surety is a guarantor ; and it is his business to see whether the principal pays, and not that of the creditor.” ' •
The defendant is not the less a party to the contract because he is liable only collaterally and not in the first instance.- The ground, upon which the consideration for his promise is held to be sufficient, is, that he was so connected with the contract between the other parties, that the consideration of their promise was that of his also. It is the very contract, which he engages to pay, that is alleged to be tainted with usury; and he may prove it to be illegal, as - well as defective in any other manner to prevent a recovery in part dr in the whole. '
The testimony offered to prove, that interest at the rate of more -than six per cent, per annum was included in the draft should have been received, and there must therefore be a new trial.