Miller

V.

Stewart.

district. Upon that occasion, the defendant, Tho- 1824. mas Stewart, and certain other persons, as sureties, executed a writing obligatory, with Ustick, to Miller, in the penalty of 14,000 dollars, upon the following condition, viz. "The condition of the foregoing obligation is such, whereas Ephraim Miller, Esquire, Collector, as aforesaid, hath, by authority vested in him by the laws of the United States, appointed the said Stephen B. Ustick, Deputy Collector of direct taxes and internal duties, in the fifth Collection District of New-Jersey, for the townships of Nottingham, Chesterfield, Mansfield, Springfield, New-Hanover, Washington, Little Egg Harbour, and Burlington; in the county of Burlington; now, therefore, if the said Stephen C. Ustick, has truly and faithfully discharged, and shall continue truly and faithfully to discharge, the duties of the said appointment, according to law, and shall particularly faithfully collect and pay, according to law, all money assessed upon said townships, then the above obligation to be void, and otherwise, shall abide and remain in full force and virtue." After the exccution of this bond, and before Ustick had, in any manner, acted under this appointment, or collected or received any moneys under the same,. Miller, with the assent of Ustick, but without the assent or knowledge of the defendant, Stewart, altered the same instrument of appointment, by interlining in it another township, called, Willingborough," thereby making it an appointment for nine instead of eight townships; and under the appointment, so altered, Ustick received, within the original

66

Mitler

V.

Stewart.

1824. eight townships, certain moneys, as taxes, which he omitted to account for, and this omission was the breach-stated in the declaration. The question for the opinion of the Court, upon the special pleadings and demurrer, was, whether the alteration so made, without the consent of Stewart, discharged him from any responsibility for the moneys so subsequently collected by Ustick.

Mr. Wood, for the plaintiff, admitted the general doctrine, that where the contract is annulled without the assent of the surety, there is an end of the guaranty. So, if the contract is, in any material respect, changed by the contracting parties, (whether advantageously for the surety or not,) in respect to that part of it to which he guaranty extends, the surety is discharged for he may, then, well say, non hac in fadera veni. But, if a change is made in the original contract, by the contracting parties, in a part of the contract to which the guaranty does not extend, such change will not discharge the surety, unless it disadvantageously affected the other part of the contract to which the guaranty does extend. Thus, where the defendant was surety to the plaintiffs, for the performance of duties by a clerk in their banking house, a change of partners was held not to discharge the surety, because, though such change had an important bearing upon the establishment, it did not come within the scope of the guaranty." A mere diminution of that part of

a Barclay v. Lucas, 1 T. R. 291.

the contract to which the guaranty extends, as a
release of part, would not discharge the surety
from the part remaining, it being a part of the
thing guarantied, though not the whole. Omne
majus in se continet minus: the surety, in such a
case, could not say that he might be prejudiced
by the diminution, for it is settled law, that a part
payment of the debt is for the benefit of the obli-
gor,
and prejudicial to the obligee, and, therefore,
it cannot be pleaded as an accord and satisfac
tion."

1. There was no surrender by Ustick of his appointment as Deputy Collector, over the first eight townships. If there was a surrender, it must have been either in fact, or in law, that is, implied in the alteration of the instrument. There was no such surrender in fact; and the alteration of an instrument with consent of parties, does not, in law, imply such a surrender. There are no authorities to warrant the position, that such an alteration implies & surrender. On the contrary, they all say, an alteration of an instrument, with consent, does not vitiate it." In Pagot v. Pagot, when blanks in a deed were filled up after execution, the deed was held good, though not read again, nor re-executed. In Markham v. Gonaston, and Wooly v.. Constant, the Court went on the ground not only

a Johnson v. Branna, 5 Johns. Rep. 270.

b Touch v. Clay, 2 Lev. 35. Shep. Touch. 68. Smith v. Crooker, 6 Mass. Rep. 539.

c 2 Ch. Rep. 187.

d Moore, 547.
e 4 Johns. Rep. 54.

1824.

Miller

ν. Stewart

1824. that an altered deed or instrument was good, but that there was no surrender and redelivery implied in the alteration, to devest the property.

Miler

Stewart.

There is nothing in principle to warrant the idea, that an alteration of an instrument implies a surrender and redelivery. A surrender is an executed contract. To constitute a surrender of an instrument by a vendee or obligee, to a vendor or obligor, two things are necessary: 1. An actual delivery of possession to the latter; and, 2. An understanding or agreement to part with the property in the instrument. The act and the intent A mere delivery of possession by the vendee of the deed, for a special purpose, to the vendor, or any other person, as to keep for him, or to do any other particular act in relation to it, is not a surrender. The vendee still has the The vendor, in such

must concur.

property in the deed himself.
case, is only his bailee. Admit, for the sake of
argument, that the alteration of a deed required a
new delivery, in respect to the part altered, the
'vendee might then deliver possession of the deed
to the vendor, for that particular purpose, viz. to
enable the vendee to deliver it anew, to give effect
to the altered part; but not surrender his property
in the deed in respect to the parts not altered.
Such an absolute surrender of the whole deed, is
not essential; and if not essential, it should not,
by a fiction of law, be required. Suppose the
rendee should hand the deed to the vendor to
subjoin on a blank under it a new and distinct
deed for another tract of land, which is done, does
such a delivery of the deed, for such a purpose,

amount to a surrender of the old deed? If not, is there any difference, in reason and common sense, whether the conveyance of the second tract is contained in a distinct and separate deed subjoined on the same paper, or whether it is effected by an interlineation, with consent of parties, in the old deed? Fictions and subtilties should never be introduced into the law, which is a practical science, unless to subserve the purposes of justice. In fictione juris semper subsistit equitas. This fiction of a surrender is unnecessary ; it may be injurious. A., pursuant to contract, conveys a tract of land to B.; they afterwards discover, that by mistake, a lot was omitted, and, by consent, it is interlined. Upon this doctrine of surrender, the deed and property, upon the interlineation, reverted to the vendor, and continued in him until the new delivery; and, of course, it is subjected to the intermediate judgments of other liens of the vendor. The rule of law may, and ought to corres pond, in such cases, with the real fact; considering the lands originally contained in the deed us passing at the date, and the land inserted by interlineation, -as passing at the time of the interli, ning.

2. There was no cancellation of the original instrument of appointment. An alteration affects an instrument in part; a cancellation destroys it altogether. When cancelled, a deed must be resealed and redelivered, to revive it." It is nowhere

a Shep. Touch. 69.

1824.

Millen

V.

Stewart.