in fee, was, that the bond should be void if the recovery should be suffered, so as and in such manner as that under and by virtue thereof the estate should be vested in the purchaser for ever, and the recovery was duly suffered, but the vendor being seised for life only, the purchaser brought an action on the bond, to which the surety pleaded, that if the vendor had been seised in tail, the recovery was suffered so as to vest the estate in the purchaser in fee: it was held that the plea was bad, because the recital in the condition did not estop the purchaser from disputing that the vendor was seised in tail, nor release the surety from his obligation, it being the intention of the parties, not that the vendor should go through the mere form of suffering a recovery, but that the purchaser should have an estate in fee: the condition amounting to a warranty of title, as much as if the parties had covenanted that the vendor was seised of an estate tail (y). So where the condition of a bond, after reciting that one J. S., who had a wife and several infant children, had taken a lease of a house belonging to the parish for a term of seven years, was for indemnifying the parish against any charges which it might sustain on account of J. S. and his family becoming inhabitants of and belonging to the parish, is not limited to the period of seven years for which the lease was granted, or discharged by J. S.'s purchasing an estate of the value of 30%. in the parish, and residing on it upwards of forty days after the expiration of the seven years; for the intention of the parties to the indemnity was, to secure the parish from the consequences which might result from his becoming an inhabitant of the parish; one of which consequences was, J. S.'s

(y) Edwards v. Brown, 3 You. & J. 423.

becoming, in case of his poverty, chargeable to the parish, and that having acquired a settlement during the seven years, J. S. could not gain a second settlement on account of his having subsequently purchased and resided on an estate in the parish which might have conferred on him a settlement there, if he had not gained one before (z).

It seems doubtful whether a guarantee for the payment of goods, which are supplied to the principal, will extend to the vessels in which those goods are contained. At all events it seems that if the vessels can be considered as accessory, they must be the identical vessels, and not others furnished on a different occasion. In Combe and others v. Woolf (a), the plaintiffs brought an action against the defendant upon his guarantee to see the plaintiffs paid for any porter they might send to a Mr. Abraham Joseph. In addition to the plaintiff's claim for porter furnished by them to the principal debtor, the plaintiffs claimed 177. 5s. for casks not returned. The Court seemed to be divided in opinion upon the question, whether the plaintiffs could, upon a guarantee which mentioned porter only, recover the price of the casks in which that porter had been contained, supposing the casks were the identical casks which contained the porter in respect of which the action was brought; but it appeared that these casks, though furnished subsequently to the defendant's guarantee, were not the identical casks which had contained the porter in respect of which the action was brought; independently of which, there was no count in the plaintiff's declaration which applied to them.

The engagement of the surety may be confined

(z) Edwards v. Bobbitt, 1 M. & Sel. 120.

(a) 8 Bing. 156.

to a particular dealing or transaction (b); or it may extend to a series of dealings and transactions successively renewed (c). If a single dealing or transaction only is contemplated, the guarantee is extinguished as soon as the contemplated dealing or transaction has been completed, and satisfaction made by the principal; in the other case, the guarantee continues in force until (in a general case) it is determined by notice. This description of guarantee is usually called a continuing or standing guarantee.

The distinctions between the cases on this subject are very nice (d); it seems, however, that if the surety engages to be answerable for any goods supplied to the principal (e), or for any debts the principal may contract (f) to a specified amount, such a guarantee will not be considered as confined to the first transaction, but applies to debts which the person undertaken for may from time to time contract; so that where a debt has been incurred by the principal to the amount at which the surety fixed his liability, which the principal afterwards discharges, the liability of the surety upon his undertaking still continues. So if the expressions of the instrument refer to a course of dealing as having subsisted between the creditor and the prin

(b) Kirby v. The Duke of Marlborough, 2 M. & Sel. 18; Kay v. Groves, 3 Moo. & P. 634; S. C. 6 Bing. 276; S. C. 4 Car. & P.72; Nicholson v. Paget, 1 Cr. & Mees. 48; Melville v. Hayden, 3 B. & Ald. 593; Walker v. Hardman, 11 Bli. N. S. 229; Bovill v. Turner, 2 Chit. 205.

(c) Bastow v. Bennett, 3 Camp. 220; Mason v. Pritchard, 2 Camp. 437; S. C. 12 East, 227; Merle v. Wells, 2 Camp. 413; Har

greave v. Smee, 6 Bing. 244; S. C. 3 Moo. & P. 573; Allan v. Kenning, 9 Bing. 618.

(d) Per Bayley, B., in Nicholson v. Paget, 1 Cr. & Mees. 48; and see the observations of Tindal, C.J., in Hargreave v. Smee, 6 Bing.

244.

(e) Bastow v. Bennett, 3 Camp. 220; Mason v. Pritchard, 2 Camp. 437, S. C. 12 East, 227.

(f) Merle v. Wells, 2 Camp.

413.

cipal (g), it will be inferred, it was the intention of the parties that the dealings should be continued until further notice, and the guarantee will be considered as a continuing guarantee; as, for example, where the guarantee was expressed to be for the payment of goods delivered to the principal, according to the custom of the principal's trading with the creditor (h); and à fortiori, if the guarantee expressly points to a continuance of such dealings (i).

A bond in the common form, with a penalty, conditioned to secure the payment of a sum of money, with interest from the day of the execution of the bond, payable at a day named (j), or upon demand (k), given to bankers by their customers, and a third person as their surety, will, as regards the surety, be considered as a security for the debt then actually due from the customers to the bankers, and not as a security for any floating balance, or contingent debt, which may at any time be due to the bankers, notwithstanding there was a collateral agreement between the bankers and their customers that the bond had been deposited with the bankers as a security for such floating balance, provided there is no evidence to connect the surety with such collateral agreement (13).

Where the condition of a bond, after reciting that the principal had occasion for divers sums of money not exceeding in the whole the sum of

(g) Hargreave v. Smee, 6 Bing. 244; S. C. 3 Moo. & P. 573; Allan v. Kenning, 9 Bing. 618.

(h) Hargreave v. Smee, 6 Bing. 244; S. C. 3 Moo. & P. 573

(i) Allan v. Kenning, 9 Bing.

618.

() Walker v. Hardman, 11 Bli. N. S. 229.

(k) Walker v. Hardman, supra.

(13) A warrant of attorney with a defeazance, stating it to be given as a security for 4,000l., and interest thereon, has been held to be (as between the debtor and creditor) a continuing security, and not merely a security for money then due. (Woolley v. Jennings, 5 B. & Cress. 165; S. Č. 7. Dowl. & Ry. 124; S. C. 2 Car. & P. 144.)

3,000/., and had applied to the obligees to advance the same at such times and in such parts and proportions as he (the principal) might require, was, to indemnify the obligees for the payment of all such sums not exceeding 3,000l., which should at any time thereafter be advanced by the obligees to the principal, was held a guarantee to a definite amount, namely, 3,000l., and when an advance was made to that amount, the guarantee became functus officio, and was not a continuing guarantee(). So where the condition of a bond, after reciting that at the request and for the accommodation of P., the plaintiff had accepted, drawn or indorsed, negotiated and paid sundry bills of exchange, several of which were still outstanding and unpaid, and in order to indemnify and save him harmless in respect thereof, and from all losses, costs, charges, damages, and expenses, the defendant had consented to join with P. in manner thereinafter mentioned, was, that if P., his heirs, &c. should at all times thereafter pay to the plaintiff, upon demand, all such money as the plaintiff already had, or as at any time or times thereafter he should or might advance, expend, or pay, to or for the use, or on account of P., and also all such money as the plaintiff then was, or at any time thereafter should, or might become, or be subject or liable to pay, by virtue or upon account of his having accepted and engaged himself for the payment of any bills of exchange, promissory notes, or drafts, at the request, or for the use, or on account of P., then the obligation should be void; was held to be an indemnity only in respect of those transactions between the plaintiff and P., for which the plaintiff had made himself liable previous to the giving of the bond (m).

(1) Kirby v. the Duke of Marl borough, 2 M. & Sel. 18.

(m) Pearsall v. Summersett, 4 Taunt, 593.