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particular individuals who compose it, as a guarantee for the fidelity of a person who is taken into the service of the persons to whom the indemnity is given, as a clerk in their shop or counting-house (f); or where the security is given to a company, which necessarily means a fluctuating or successive body of persons, who should from time to time be carrying on the business which the company professed to carry on, as a guarantee for the good conduct of a person whilst in the service of the said company (g), a change among the members of which the company is composed in the one case, or a change of partners in the house of trade in the other, will not put an end to the indemnity. So where the condition of a bond, after reciting that A. and B. had filed a bill in equity against C. and D., was, that the surety obligor should pay all such costs as the Court should award to the defendants on the hearing of the cause, and D. having died before any costs had been awarded, it was held (Abbott, C. J., dubitante), that the death of D. could not be pleaded in discharge of the bond, for the bond not being conditioned to pay such costs as the Court of Equity
(f) Barclay v. Lucas, 1 T. R. (9) Metcalf v. Bruin, 12 East, 291 n. (1).
400; S. C. 2 Camp. 422.
(1) The propriety of the decision in Barclay v. Lucas has been questioned. (See the observations of Lord Ellenborough in Strange v. Lee, 3 East, 484, and of Sir James Mansfield in Weston v. Barton, 4 Taunt. 673.) It is not disputed, that if it can be collected that the parties intended that the guarantee should be an available security for the benefit of the house, and not for the particular existing partnership, a change in the partners of that house will not have the effect of putting an end to the guarantee so long as the house or firin is substantially the same establishment, and continues to carry on their accustomed business : but it is to be observed, that in Barclay v. Lucas the guarantee was given to the partners individually, and not to the house or firm carrying on business under the style which the house was accustomed to assume; and in this respect the case seems not to differ from those cases in which it has been held, that a change in the partners of a firm puts an end to the security.
should award to C. and D. by name, but to pay such costs as should be awarded by that Court to the defendants; the meaning of the parties was, that the surety obligor should pay all such costs as should be awarded by the Court to those who at that time filled the character of the defendants in equity (h). But an indemnity given to certain persons and their successors, as the governors of a voluntary unincorporated society, ceases upon the society's becoming incorporated (i); for in the judgment of the law, the society is, after the charter of incorporation, a perfectly new body of persons, the individual members being liable for debt in the one case, and only the corporation funds in the other; and it is reasonable to suppose that a surety may be willing to give his security when the governors were personally responsible, and therefore the more likely to look after the conduct of the person in their service, although his fidelity had been guaranteed, than they would do if they were not responsible.
4thly. Of guarantees with reference to their duration.
Upon the principle, that a bond is construed with reference to the recitals (j), it has been held, that where the condition of a bond, after reciting that the plaintiff had appointed one P. to be his deputy-postmaster for six months, was, that P. should faithfully account during all the time he should continue deputy-postmaster; the liability of the surety was confined to the period of six months mentioned in the recital, though the employment of P. continued for a longer period (k)." So if a bond, after reciting the appointment of a person to an office,
(h) Kipling v. Turner, 5 B. & Ald. 261.
(i) Dance v. Girdler, i N. R. 34.
(;) See supra, p. 37. (k) Lord Arlington v. Merricke, 2 Saund. 411; S.P. Liverpool Waterworks v. Atkinson, 6 East, 507.
the duration of which is limited to a particular period, either expressly by an act of Parliament (1), or impliedly from the nature of the office itself
, (as, for example, where the appointment is made by one, in virtue of an office which is itself limited, in which case the offices will be considered as co-existent (m),) and the bond is conditioned for the due collection, by the person appointed to such office, of all monies received by him by virtue of such office, at all times thereafter, a due collection for the particular period, is a compliance with the condition, notwithstanding the words of the condition are general and indefinite as to time, and would of themselves extend the liability of the surety beyond the particular period. And the liability of the surety in a bond given to the obligees, or their successors, conditioned for the faithful accounting by an officer appointed by the obligees, in virtue of their office, (such office being limited to a particular period,) has been held not to extend beyond the time during which the obligees were in office; the word "successors” having been considered to have been introduced in ease of the collector, that he might discharge himself by immediate payment to those who would ultimately have the disposition of the money, and not to indicate any intention that the collector should continue to act after the obligees' successors came into office (n). But if the office which the person has been appointed to fill, and for the faithful discharge of the duties of which, the surety has engaged to be answerable, is not limited in its duration (), or being limited in its duration, it clearly appears from the condition, that the parties meant to provide for (1) Peppin v. Cooper, 2 B. & Ald.
(n) Leadley v. Evans, 2 Bing. (m) Hassell v. Long, 2 M. & Sel. 32 ; S. C. 9 J. B. Moo. 102. 363; the Wardens of St. Saviour (0) Curling v. Chalklen, 3 M. & v. Bostock, 2 N. R. 175; Leadley Evans, 2 Bing. 32 ; S. C. 9 J. B.
the continuance of the party in office, and for the responsibility of the surety upon a re-appointment of the same individual (p), the obligation of the surety will, notwithstanding the obligees themselves are annual officers, if given to them and their successors (9), continue in force, after the obligees to whom the bond is given, have gone out of office.
Although it may be stated generally, that it is in the power of the surety to determine his liability, by recalling his credit where no liability has attached, the instrument may be so framed as to make the security not dependant upon the surety for its determination, but dependant either upon the person to whom, or the person for whose use it was given (r); thus, if C. agrees to take P. into his service as a collecting clerk, (but not for
definite period,) and P., together with S. as his surety, execute a joint and several bond to C., in a penal sum, conditioned to be void if P. shall, during his continuance in the service of C., duly account for all his receipts, it is not in the power of S. to say at any particular time that he will no longer be liable to Č. on P.'s behalf, but the liability of S. continues so long as P. remains in the service of C.(s). So if a person become surety for a receiver in a suit in equity, he will be held bound to his recognizance, and will not, while the suit continues, be discharged at his request, if it be not for the benefit of the parties interested in the subject-matter of the suit that the surety should be discharged (t): unless the surety can show that underhand practices have taken place between the receiver and the parties on whose behalf
(p) Augero v. Keen, i Mees. & W.390.
(9) M'Gahey v. Alston, 1 Mees. & W.386 ; Augero v. Keem, supra.
(n) Gordon v. Calvert, 3 Man. & Ry. 124; S. C. 7 B. & Cress. 809; S.C. 2 Sim. 253; S.C. 4 Russ.
581; Griffith v. Griffith, 2 Ves. 400; Shepherd v. Beecher, 2 P. Wms. 288.
(s) Gordon v. Calvert, supra.
(t) Griffith v. Griffith, 2 Ves. 400.
he was appointed (u). So a surety who has given bond in a writ of ne exeat regno, sued out by the plaintiff in a suit, conditioned for the principal's not departing the kingdom, will not be discharged, though the principal's answer has been put in (v); or where the bill has been subsequently amended under a common order, if the amendments do not vary the substance of the plaintiff's case (w); or even where the principal is in custody for want of an answer (x) (2). But if after a decree has been
pronounced against the principal for the same matter for which the writ of ne ereat regno issued, the defendant be in custody for not performing the decree, the surety may then apply for and obtain an order that he be discharged, and the bond will as to him be cancelled (y). So if a father places his son an apprentice with a merchant for seven years, and give a bond for his son's fidelity, the father cannot discharge himself from his liability, without the consent of the merchant, until the seven years have expired (z).
(u) Hamilton v. Brewster, 1 ex. reg. in n.; S. C. 19 Ves. 615; Moll. 28, in n.
Le Clea v.
Trot, supra; Archboli (0) Le Clea v. Trot, Pre. Ch. v. Burrell, Toth. 17, contrà.
(y) Debazin v. Debazin, 1 Dick. (w) Grant v. Grant, 5 Russ. 95.
(2) Shepherd v. Beecher, 2 P. (x) Stapylton v. Peile, Bea. ne
(2) At common law, bail are discharged upon the rendering of their principal. In Westley v. Brown, (1 Bulstr. 43,) it is stated, that the principal being in custody of the marshal's man, the creditor, with the view to charge the bail with the debt, desired the marshal's man (as the report expresses it) to let the principal ire ad largum, which he accordingly did, and it was held the bail were discharged, the creditor not having any remedy against the bail when he hath once taken the principal in execution; equity, however, following the civil law, (see Inst. lib. IV. tit. XI. $ 2,) will not relieve the surety in a case of ne exeat regno until judgment is pronounced.