That a contract of guaranty requires a consideration to support it, and that the consideration of the original promise will not support a guaranty subsequently made, are doctrines too well settled to need the citation of authorities. But if the guaranty is accepted at the same time with the principal promise, and as a part of the same, transaction, the consideration of that will, be sufficient to give effect to the guaranty also.

On examining the contract signed by Parsons on the 12th of May, it is very clear that it was a new and different contract from that which was made on the 19th of April. By the arrangement first made, the plaintiff had the agreement of Parsons to take up at maturity the notes which he had borrowed, and the promise of Copeland that the defendant should give a guaranty of their punctual payment. To this contract the defendant was not a party. By the contract of May 12th, Parsons agreed that the notes were received on account of two cargoes of rice, amounting to eleven thousand bushels, and promised the plaintiff to deliver the rice within three months, or to pay him the sum of $10,000, or such part thereof as should then remain due. This new contract the defendant guaranteed ; and it was delivered to the plaintiff as a substitute for that which had been originally agreed upon. The plaintiff accepted the new contract of Parsons, wholly different in its terms and obligation, in the place of the agreement to pay the notes at maturity, and accepted the defendant’s guaranty in satisfaction of that which Copeland had agreed that he should have. The acceptance by the plaintiff of the substituted- contract of Parsons, which discharged the earlier one, would be in itself a *133sufficient consideration for the guaranty which accompanied it. The new contract of Parsons certainly discharged Copeland from his obligation. He had bound himself to procure the defendant’s guaranty to a contract which was satisfied and extinguished. The release of Copeland from that liability would be another consideration ample to support the defendant’s guaranty. The rulings of the court in relation to the consideration seem to us, therefore, to have been substantially correct. The lending of the notes was the consideration of Parsons’s first promise, and of the collateral agreement of Copeland; and the discharge and satisfaction of these by the delivery and acceptance of the- new contract with the defendant’s guaranty was the consideration of the guaranty. This was not stated at length in the instructions of the court to the jury; but it was indicated with sufficient distinctness for their guidance ; and in one connection, the court expressly state that the delivery of the guaranty was a performance of Copeland’s agreement, and discharged him from liability under it.

The objection that the true consideration of the guaranty was not set forth in the declaration comes too late. It was not taken at the trial. It was merely a question of variance, which, if shown to be well founded, could have been obviated by an amendment. The only point made in reference to it, as appears by the report, was the prayer for instructions that, “ under the declaration, the plaintiff could only recover on proving the notes of April 19 delivered at defendant’s request, or new consideration from plaintiff to defendant at the time of execution of said guaranty.” This shows that the insufficient statement of the consideration in the declaration was not the point relied on.

In the absence of fraud, we can see nothing in the relations of the plaintiff" and defendant which called for any communication of facts by the plaintiff. Although it is said that the second contract was prepared by Copeland “ with the knowledge and assent of the plaintiff,” Copeland was in no sense the plaintiff’s agent. The plaintiff had no reason to suppose that the defendant had not an equal knowledge with himself of every material fact. The contract did not profess to convey the title *134to the rice, or give the plaintiff any lien or security upon it, but was wholly executory. If one of the notes was not advanced, it diminished to that extent the defendant’s liability, and under the instructions given to the jury he has had the benefit of the deduction. Judgment on the verdict for the plaintiff.