1824.

Miller

Y.

Stewart.

March 10th.

It is no answer to a surety, to say that the alteration is not material. He has a right to determine for himself whether he will or will not consent to the alteration; whether HE thinks it material or immaterial. Suppose he had been consulted, and refused his consent, no matter from what motive. Not consulting him, is, at least, equivalent to refusal. Who can tell what considerations might have justly influenced him? But the great objection to any latitude is this, that if the narrow limits, defined by numerous and uniform decisions, be not adhered to, there will be no limit at all. The limit is this: no power of man, or circumstances, can alter your engagement. You know exactly the extent of the engagement you enter into. There will be no equity against you, no intendment or legal construction. A surety cannot be held beyond the precise terms of his agreement." It is upon the basis thus established, that suretyship stands, and it would not stand without it. It is a needful, but it is always a perilous undertaking; and its perils most frequently overwhelm those whom one could wish to see saved, the generous and the humane. It cannot be necessary or politic to increase its dangers.

Mr. Justice STORY delivered the opinion of the Court, and, after stating the case, proceeded as follows:

Nothing can be clearer, both upon principle and

a 1 Caines' Err. 1. 10 Johns. Rep. 180.

Miller

Stewart.

authority, than the doctrine, that the liability of 1824. a surety is not to be extended, by implication, beyond the terms of his contract. To the extent, and in the manner, and under the circumstances, pointed out in his obligation, he is bound, and no farther. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal. And Courts of equity, as well as of law, have been in the constant habit of scanning the- contracts of sureties with considerable strictness. The class of cases which have been cited at the bar, where persons have been bound for the good conduct of clerks of merchants, and other persons, illustrate this position. The whole series of them, from Lord Arlington v. Merrick, (2 Saund. 412.) down to that of Pearsall v. Summersett, (4 Taunt. 593.) proceed upon the ground, that the undertaking of the surety is to receive a strict interpretation, and is not to be extended beyond the fair scope of its terms. Therefore, where an indemnity bond is given to partners, by name, it has constantly been held, that the undertaking stopped upon the admission of a new partner. And the only case, that of Barclay v. Lucas, (1 T. R. 291. note a.) in which a more extensive construction is supposed to have been given, confirms the general rule; for that turned upon the circumstance, that the security was given to the house, as a bankinghouse, and thence an intention was inferred, that

1824. the parties intended to cover all losses, notwithstanding a change of partners in the house.

Miller Stewart.

Now, what is the purport of the terms of the present condition? The recital stated a special appointment, which had then been made by Miller, of his deputy for eight townships, particularly named. It was not a case of several distinct appointments for each township, but a single and entire appointment for all the townships; and the condition is, that Ustick has, and "shall continue, truly and faithfully to discharge the duties of said appointment, according to law." Of what appointment? Plainly the appointment stated in the recital, to which the condition refers, and to which it is tied up; that is to say, the appointment already made and executed for the eight townships. If this be the true construction of the condition, and it seems impossible to doubt it, then the only inquiry that remains is, whether any money unac✩ counted for was received under that appointment. To this the plea answers in the negative, unless the subsequent alteration of the instrument oreated no legal change in the appointment. To the consideration of this point, therefore, the attention of the Court will be addressed.

And, in the first place, upon principle, how does the case stand? Can it be affirmed, that the alteration wrought no change in the appointment? This will scarcely be pretended. In point of fact, the first appointment was for eight townships only; the alteration made it an appointment for nine townships. It is not like the case where an ap pointment is made for eight townships, and an

other distinct appointment is made for the ninth; for then there are, in legal contemplation, two distinct and separate appointments. But here, the original appointment is extended; it was one and entire, when it included eight townshins: it is one and entire, when it includes the nine. Can it then be legally affirmed to remain the same appointment, when it no longer has the same boundaries? An appointment for A. is not the same as an appointment for A. and B. In short, the very circumstance, that there is an alteration in the appointment, ex vi termini, imports that its identity is gone. If an original appointment is altered by the consent of the parties to the instrument, that very consent implies, that something is added to or taken from it. The parties agree, that it shall no longer remain as it was at first, but that the same instrument shall be, not what it was, but what the alteration makes it. It shall not constitute two separate and distinct instruments, but one consolidated instrument. A familiar case will explain this. A. gives a note to B. for 500 dollars; the parties afterwards agree to alter it to 600 dol lars. In such case, the instrument remains single; it is not a note for 500 dollars, and also for 600 dollars, involving separate and distinct liabilities, but an entire contract for 600 dollars; and the obligation to pay the 500 dollars is merged and extinguished in the obligation to pay the 600 dollars. To bring the case nearer to the present: suppose there was a bond given, as collateral security, to pay the note of 500 dollars; it will scarcely be pretended, that the alteration would not extinguish VOL. IX.

89

1824.

Miller.

v.

Stewart

1824.

Miller

V.

Stewart.

the liability under the bond. The instrument would, indeed, remain, but it would no longer possess its former obligation and identity. Nothing can be better settled, than the doctrine that, if an obligation be dependent on another obligation, (and, by parity of reasoning, upon the legal existence of another instrument,) and the latter be discharged, or become void, the former is also discharged. Sheppard, in his Touchstone, (p. 394.) puts the case, and illustrates it, by adding, “as, if the condition of an obligation be, to perform the covenants of an indenture, and afterwards the covenants be discharged, or become void; by this means, the obligation is discharged, and gone for ever." It is not denied at the bar, that the same would be the legal operation in the present case, if there had been an actual revocation of the first appointment, or an extinguishment of the instrument of appointment. But the stress of the argument is, that here there was an enlargement, and not an extinguishment, of the appointment; that, the consent of the immediate parties being given to the alteration, it remained in full force, with all its original validity, as to the eight townships. We cannot accede to this view of the case. After the alteration was made, it is, as between the parties, to be considered by relation back, either as an original appointment for the nine townships; or as a new appointment for the nine townships, from the time of the alteration. It is immaterial to the present decision, whether it be the one or the other, for in either case it is not that appointment which the defendant, Stewart, referred to in