A.' for the fidelity of a clerk, is not liable in respect of a breach of trust, upon an employment of the clerk by A.'s executors (s).

If a person engage as surety to several individuals, the engagement is understood to be to all of them collectively and jointly, and if any of them die it will not be available in respect of transactions afterwards by the survivors (t).

An engagement entered into with persons as the representatives of a society, which at the time was a voluntary one, will not continue after the incorporation of the society (u).”

Of a continuing guarantee.-It has frequently become a question of some nicety, whether a guarantee, to the extent of a named sum, of the price of goods to be furnished to another, is to be considered a continuing or standing engagement, until the credit be recalled by notice (x); or is to be viewed as confined to one transaction, and is consequently satisfied by a supply of goods to the specified amount, and a payment made by the vendee for the same.

In Mason v. Pritchard (y), the Court held that an engagement "for any goods the plaintiff hath, or may supply W. P. with to the amount of 1007." is a standing and continuing guarantee, and is therefore not discharged by a supply of goods to the amount stated, and a payment for the same by W. P.; but applies to a subsequent sale to him. The same construction was put upon the following memoranda :—

"To A. B., I have been applied to by C. D., to be bound to you for any debts he may contract, not to exceed 1007. in his business as a jeweller. I consider myself bound for any debt he may contract, &c." (z).

surety shall be liable. If a note be given to a firm "or order" as a security, it is a security for advances made after a change in the firm; Pease v. Hirst, 10 B. & C. 122; see Roe d. Durant v. Moore, 6 Bing. 656.

(s) Barker v. Parker, 1 T. R. 287. (t) Weston v. Barton, 4 Taunt. 673; Strange v. Lee, 3 East R. 484; Myers v. Edge, 7 T. R. 354. Aliter in the case of a bond to the trustees of a company; Metcalf v. Bruin, 12 East R. 399; see suprà, note (r).

(u) Dance v. Girdler, 1 New R. 34.

(x) If the guarantee be under seal, and be a continuing security for goods, &c., to be from time to time supplied, or monies to be received, &c., semble it cannot be recalled by notice not to trust, &c., unless there be an express provision to that effect in the instrument itself; Hassell v. Long, 2 M. & Selw. 370; Culvert v. Gordon, 3 M. & R. 124; 2 Simon, 253; Hough v. Warr, 1 C. & P. 150.

(y) 12 East, 227; 2 Camp. 436, S. C.

(z) Merle v. Wells, 2 Camp. 413.

"I hereby undertake to be answerable to the extent of 1007. for any tallow supplied by A. to B." (a).

"I hereby agree to guarantee the payment of goods to be delivered in umbrellas to J. S. according to the custom of their trade with you, in 1007. (b).

"If you will credit A. B., I engage that his payments shall be regularly made from this day, &c." (c).

"Whereas W. C. is indebted to you, and may have occasion to make further purchases from you, as an inducement to you to continue your dealings with him, I undertake to guarantee you in the sum of 100%., payable to you on the default of the said W. C. for two months (d)."

But in Melville v. Hayden (e), it was decided that a guarantee "of the payment of A. B. to the extent of 60%., at quarterly account, bill two months, for goods to be purchased by him of the plaintiff," is not a continuing or standing guarantee to that extent for goods to be at any time supplied to A. B., until the credit is recalled. And the following memoranda :-" I hereby agree to be answerable to K. for the amount of five sacks of flour, to be delivered to W. T., payable in one month."(f)" I hereby agree to be answerable for the payment of 50l., for T. L., in case he does not pay for the gin, &c., he receives from you, and I will pay the amount" (g):-have been held not to be continuing guarantees. And it is reported that the Court considered the following memorandum, namely, "you may let A. B. have coals to 50l., for which I will be answerable at any time," is not a continuing engagement (h). A recital in the instrument will sometimes restrain the generality of an engagement of this nature; and explain whether it has reference to past or future transactions, or to both (i). It is clear that the creditor may arrest the surety, or

party guaranteeing the payment of the debt, upon the principal making default, and the surety neglecting to pay the amount on notice to him of the default, and a request by the creditor that the payment be made (k).

The rights and liabilities of a surety in regard to costs which he may have incurred, have been already noticed (7).

4thly, SURETY HOW DISCHARGEd.

When a surety or person guaranteeing may be discharged from liability by conduct of the creditor inconsistent with a contract of this nature:

The Courts have been extremely anxious to protect a surety, or party giving a guarantee, from fraud. It is the duty of the party, to whom the surety is bound, to put him in possession of all the facts likely to affect the extent of his liability. He must be made acquainted with the whole of the contract entered into with his principal. And if there be a private agreement for a variation in the terms, it is a fraud on the surety, and no liability on his part attaches. Therefore, a private agreement between the vendor and vendee of goods, for the price whereof the defendant had become liable as surety, that the vendee should pay a further sum beyond the market price, to be applied towards an old debt, discharges the defendant from all liability on his guarantee (m).

If A. agree to give B. a certain sum for goods, in advancement of C., any secret agreement between B. and C., that the latter shall pay a further sum, is void, as a fraud on A., although the bill of sale were made to A., and B. cannot recover such further sum from C. (n).

And it seems that if A. be induced to pay B. a composition on the debt due to him (B.) from C., and B. agree to accept the money in full of his claim, he cannot afterwards sue either C., or even a person who was before surety for him, at least if A. did not assent to the surety remaining liable (0).

(k) Cope v. Joseph, 9 Price, 155; Collins v. Wallis, 11 Moor, 248. The affidavit should be special, and should comprise in substance all the facts which are usually stated in a declaration upon a guarantee. And it is generally stated in the affidavit that the undertaking was in writing, and signed by defendant.

(1) Ante, 398; 401.

(m) Pidcock v. Bishop, 3 B. & C. 605; 5 D. & R. 505, S. C.; see per Littledale, J., Wilcher v. Hall, 3`B. & C. 280.

(n) Jackson v. Duchaire, 3 T.R. 551. (0) Lewis v. Jones, 4 B. & C. 506, 512; see note to that case, page 515; 6 D. & R. 567, S. C.; Welbyv. Drake, 1 C. & P. 557; see Bramston v. Robins, 12 Moor, 68; 4 Bing. 11; post, “ Pay

If a person sign a promissory note as surety, upon the representation that another person would also become a party to it as surety, no liability would be incurred by the former to the payee, if the other proposed surety refused to join in the instrument; unless the objection were expressly waived by the person who signed (p).

Discharging Principal, or giving him time, &c., exonerates the surety. The following principle, advanced by Pothier (q), has its full influence in the English Courts. "It results from the definition of a surety's engagement, as being accessory to a principal obligation, that the extinction of the principal obligation necessarily induces that of the surety; it being of the nature of • an accessory obligation that it cannot exist without its principal; therefore, wherever the principal is discharged, in whatever manner it may be, not only by actual payment or a compensation, but also by a release, the surety is discharged likewise; for the essence of the obligation being that the surety is only obliged on behalf of a principal debtor, he therefore is no longer obliged when there is no longer any principal debtor for whom he is obliged. In like manner the surety is discharged by the novation (r) of the debt; for he can no longer be bound for the first debt for which he was a surety, since it no longer subsists, having been extinguished by the novation; neither can he be bound for the new debt, into which the first has been converted, since this new debt was not the debt to which he acceded."

The extinguishment of the debt against the principal by taking a composition thereon from him, whereby all further claim against him ceases, discharges the surety also (s). A release to the principal, also operates as a release to the surety; and it appears that, in equity, an agreement to release has the same effect (t). It

ment." When the surety, by arrangement with the creditor, may remain liable to him, notwithstanding a composition deed, signed by the creditor, in common with the creditors of the principal debtor, and yet retain no remedy over against the principal; see the note to Lewis v. Jones, 4 B. & C. 515.

(p) Leaf v. Gibbs, 4 C. & P. 466. (q) On Obligations, p. 2, c. 6, s. 1, 5th Corollary; French Civil Code, bk.

3, tit. 14, c. 3.

(r) That is, the acceptance of one obligation in satisfaction of another.

(s) Jones v. Lewis, 4 B. & C. 506; 6 D. & R. 567, S. C. See note to that case, as to the general effect of signing a composition deed, in regard to existing securities; and Thomas v. Courtnay, 1 B. & Ald. 1; Mallet v. Thompson, 5 Esp. R. 178.

(t) Hawkshaw v. Perkins, 2 Swanst. 539; see post, "Release."

seems also that, at least in equity, a covenant not to sue (u) the principal would also discharge a party bound for him as surety (x); for, by such covenant, time (indefinitely) is given to the principal; and the situation of the principal and surety is materially altered.

Any alteration, however bonâ fide, by the creditor and principal of the terms of the original agreement, in reference to which the surety became responsible for the principal, will clearly exonerate the surety, not assenting thereto, from all liability. And this doctrine seems to hold, although the new terms, thus substituted, vary only in a slight degree from those prescribed by the original agreement. A surety is entitled to a strict and literal performance by the creditor of the contract in reference to which the guarantee was given.

An agreement to guarantee the price of goods to be sold on a credit of twelve months, does not apply to a sale on a credit for a less period (y). But a guarantee, "If you will give credit to A. B., I will be responsible that his payments shall be regularly made," means a fair and reasonable credit according to the mode of dealing between the parties, and is not confined to a dealing according to the strict customary credit of the trade (~).

If a guarantee be for a loan (a); or a sale of goods (b); the transactions with the principal must be strictly of that nature. Although the liability of the surety be limited to a certain sum, the creditor does not prejudice his remedy against the surety to that extent, by trusting the surety to a larger amount. The case of Whitcher v. Hall (c), is a strong authority upon

(u) As to the distinction between a covenant not to sue, and a release to, one of several debtors, see post, "Release.

(x) See Theobald, 164, &c. (y) Bacon v. Chesney, 1 Stark. R. 192. On a guarantee for six months credit, a sale at three months, and then a bill at three months, is protected; Simmons v. Keating, 2 Stark. R. 426. A guarantee was given for coals, at two months' credit from delivery; and sales at daily intervals, on the terms of giving, at the end of each month, a bill at a month for the coals delivered in the previous month, were held not to

be a guarantee; Holl v. Hadley, 5 Bing. 64; 2 M. & P. 137, S. C.

(2) Simpson v. Manley, 2 C. & J. 12. Where no time is fixed by the guarantee, the usual credit must be given; Combe v. Woolf, 8 Bing. 161, per Tindal, C. J.

(a) Glyn v. Hertel, 8 Taunt. 208; 2 Moor, 134, S. C.

(b) Evans v. Whyle, 3 M. & P. 130; 5 Bing. 485, S. C.; M. & M. 468, S. C.

(c) 5 B. & C. 267; 8 D. & R. 22, S. C., Mr. J. Littledale, dissentiente ; Bowmaker v. Moore, 3 Price, 214; 7 Price, 223; Archer v, Hale, 1 M. & P. 285; 4 Bing. 464, S. C.