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nalty, yet if he resorts to the mortgage, the penalty is out of the question (h).
A guarantee to pay a bill of exchange, makes the party guaranteeing liable to pay interest, in the same manner as if he were party to the instrument(i); but an undertaking to pay a sum of money which has no direct reference to any bill, will not make the party guaranteeing liable to pay interest, though the money had been in the hands of the party giving the undertaking long before it was demanded : the loss of interest which the party entitled to the money had sustained, being held ascribable to his own neglect, in not pursuing his remedy as soon as he was able to do so ().
2ndly. Of guarantees with reference to the subject-matter in respect of which the surety makes himself liable.
A party standing in the situation of surety, can only be liable on the precise terms of his legal obligation, and a court of equity will not carry his liability beyond that extent(k). If a person guarantee the payment of such gold as another person may supply to a working goldsmith for the purpose of his trade, and the person guaranteed discount bills of exchange for the goldsmith, and furnishes the amount of the bills partly in money and partly in gold, such a transaction is not within the terms of the guarantee, and the surety is not liable even for the amount of the gold so supplied, though it was supplied by the goldsmith in the way of his business (1). So where P., a builder, having contracted
(h) Clarke v. Lord Abingdon, 196; S.C. i Eq. Ca. Ab. 93; Shef17 Ves. 106.
field v. Lord Castleton, 2 Vern. (i) Slack v. Lowell, 3 Taunt. 393; Rawstone v. Parr, 3 Russ.
424. 539; Samuell v. Howarth, 3 (1) Hare v. Rickards, 7 Bing. Meriv. 272; Hemming v. Trenery, 254.
2 Cr. M. & Ros. 385. (k) Simpson v. Field, 2 Ch. Ca. (1) Evans v. Whyle, 5 Bing. 22; Ratcliffe v. Graves, 1 Vern. 485; S. C. 1 Mood. & M. 468.
to perform certain works, and requiring materials to complete the contract, applies to C. to supply him with such materials, which he agrees to do upon the guarantee of S. that payment of the price of the goods or materials so furnished by C. to P., shall be made when the amount of the contract is paid, and the contract fails through the neglect of P., so that the whole amount of the contract is not paid to P., C. is not entitled, as against the surety, to recover upon the guarantee ; for the surety does not engage on his part that P. shall fulfil the contract, or that the money for the materials supplied by C. shall at all events be paid, but simply that the money payable to C. shall be paid, provided the full amount of the contract is paid ; and as the full amount of the contract was not paid, C. is entitled to nothing from the surety (m). So where à guarantee is given to be answerable for a supply of money to the extent of a certain sum, for the use of a named house of trade, and the house of trade is, at the time the guarantee is given, under liabilities to the persons guaranteed, to secure which the latter hold bills of exchange bearing the acceptances of such house, and which upon the receipt of the guarantee they deliver up to the house of trade, and take new notes from the house ; such interchange of existing notes is not a loan of money within the terms of the guarantee, which is prospective in its operation, and contemplates only an advance of money, leaving the past transactions as they were(n). So where the defendant agreed to guarantee the plaintiff against any loss in case the defendant's son should become bankrupt, and the plaintiff alleged in his declaration that the defendant's son had become bankrupt; it was held that
(m) Hemming v. Trenery, 2 Cr. (n) Glyn v. Hertel, 8 Taunt. 208 ; M. & Ros. 385.
S. C. 2 J. B. Moo. 134.
the plaintiff was bound to show that a commission of bankrupt had been sued out, and evidence that the son was a trader, and that he had been lying in prison more than two months, and that the plaintiff was ready to prove a debt upon which a petition for a commission of bankrupt might have been founded, was held insufficient; for it was possible that the son might have been unfortunate enough to commit an act of bankruptcy, although perfectly solvent, and it could not be the meaning of the guarantee to make the father responsible in such a case, if no commission had been sued out(o). So, where a bond is given for the due accounting by a collector of taxes, to be received by virtue of an act of Parliament, the surety will not be answerable for the monies received by the collector, unless the collector be legally appointed under the act, and is authorized to receive such duties under it, although it may have happened that the collector has received sums from the subjects as and for such duties(P); but where a person who was appointed under an act of Parliament to collect certain rates and duties, but which act gave no power to collect the rates in question, but only enacted that the rates and duties should be collected under the regulations of any act to be passed in the same session of Parliament relating to such duties, and the act referred to passed in the prior part of the sessions ; it was held that the act duly authorized the collection of the duties—that the words “ any act to be passed in the present session" must be taken with reference to the commencement of the session, which is a thing of continuity, embracing both the past and the future portions of it (9).
Agreeably to the rule in the construction of an
(0) Bulkeley v. Lord, 2 Stark. 406.
(p) See Nares v. Rowles, 14
(q) Nares v. Rowles, supra.
instrument, that regard should be had, and effect, if possible, be given to every part of it (r), it is established that if the instrument of suretyship is a bond, the condition of the bond shall be construed with reference to the recital, which is a proper key to its meaning (s), and where the words of the obligation import a larger liability than the recital contemplates, those words will be restrained by the particular recital (t) (12); thus, where the condition of a bond, after reciting that a sheriff had appointed one J. S. bailiff of a hundred within his county, was for the duly executing by J. S. of all warrants to him directed; it was held that the words “all warrants” shall be intended only all warrants which shall be directed to J. S., as bailiff of the said hun(r) See ante, p. 26.
& Sel. 423; Peppin v. Cooper, (s) Hassell v. Long, 2 M. & Sel. supra ; and see Simons v. Johnson, 363; Peppin v. Cooper, 2 B. & 3 B.& Ald. 175; Thorpe v. Thorpe, Ald. 431; Sansom v. Bell, 2 Camp. i Lord Raym. 235; Lampon v. 39; African Company v. Mason, Corke, 5 B. & Ald. 606; Knight 1 Stra. 227, cit.
v. Cole, 3 Lev. 273; S. C. 3 Mod. (t) Payler v. Homersham, 4 M. 277; S. C. 1 Show. 150.
(12) But where a bond was executed by a person of the name of Swift and two other persons as his sureties, in the penalty of 1,0001., the condition of which, after reciting that the defendant Swift had taken a farm of the plaintiff for the term of fifteen years, subject to the payment of the yearly rent of 450l., and to the provisoes, conditions, covenants, and agreements contained in an indenture of lease ; and that it had been agreed by and between the defendant Swift and John Ingleby, the plaintiff, that the defendant Swift should enter into a bond or obligation in writing, with two sufficient sureties in the penalty of 500l., for the payment of the rent, and the true observance and performance of the covenants, &c. in the said in part recited indenture of lease contained, was declared to be, that if the defendant Swift, his executors, &c., should pay the said yearly rent at the days and times expressed in the said indenture of lease, and observe the covenants, &c., then the said bond should be void; but otherwise should remain in full force and virtue: the Court of Common Pleas refused to cut down the penalty of 1,000l. to 500l. by the recital of the agreement to execute another bond in another penalty, it being obvious that the intention of the obligee in taking the bond was to secure the payment of the rent, and the performance of the covenants in the indenture referred to, and held that the condition was not satisfied by payment of rent to the amount of 5001., when more was in arrear. (Ingleby v. Swift, 10 Bing. 84.)
dred, and no other warrants (u). Nor will the condition of a bond, after reciting the appointment of a person as collector of certain duties imposed under an existing act of Parliament, extend to duties which are subsequently imposed (v). But if any new subject-matter is introduced into the condition of the bond, an extended liability is created, and the surety's responsibility will not be confined to the limits specified in the recital; as where the condition of a bond, after reciting that the obligees had agreed to accept bills of exchange to be drawn upon them by one P., to the amount of 10,0001., was for the payment to the obligees of all sums of money as the said P. might stand indebted to the obligees by reason of their being so under acceptances for the said P., or on any other account thereafter to subsist between them, the said P., and the obligees, when and as the same should become due and payable (w).
Again, where the condition of a bond, after reciting the appointment of a person to the office of overseer, was for the overseer's faithfully accounting for all sums received by him by virtue of his office of overseer; the obligation of the surety does not extend to monies borrowed by the overseer without the direction of the parishioners, though the monies so borrowed are applied by him to parochial purposes; for the borrowing of money is no part of the duty of an overseer, and therefore could not have been received by him by virtue of his office (r). Where, however, the condition of a bond, after reciting that the vendor was seised in tail of an estate, of which he had covenanted to suffer a recovery at a future day, to the use of the purchaser (u) Stoughton v. Day, Sty. 18, the Attorney-General, Parker, 277.
(w) Sansom v. Bell, 2 Camp. 39. (v) Bowdage v. the Attorney- (w) Leigh v. Taylor, 7 B. & General, Parker, 278; Bartlett v.
S. C. Al. 10.