So a surety for a lessee is not liable foi rent after the term, although the lessee holds over. I Pick. Mass. 332.
If the law provides that a public officer' shall hold over until a successor is appointed, the sureties on the official bond are liable during such holding over. 37 Miss. 518 ; 2p Mete. Mass. 522: contra, in the case of officers of corporations. 7 Grey, Mass. 1 ; 1 All. Mass. 340.. And this provision is not controlled by an' alteration of the law extending the term but leaving the provision intact. 15 Gratt. Va. 1., 20. In bonds, the penalty-is the extreme amount of liability of the surety ; but various, circumstances may reduce the liability below' this. 2 South. N. J. 498 ; 3 Cow. N. Y. 151 5 id. 424 ; 2 H. Blackst. 1190 ; 6 Term, 303. If the engagement of the surety is general, the surety is understood to be obliged to the, same extent as his principal, and his liability extends to all the accessories of the principal' obligation. Theobald, Surety. 90 ; 14 La. Ann. 183.
It is said by Ellenborough, J., that a recital only for bills to a certain amount accepted by the plaintiff, is extended by a condition to be liable " for that or any other account there after to stibsist." 2 Campb. 39.
A continuing guaranty up to a certain amount covers a constant liability of that amount ; but if the guaranty is not continu ing, the liability ceases after the execution' of the contract to the amount limited. 3 ,Barnew. & Ald. 593 ; 6 Bingh. 276. • 21. A guaranty may be continuing or may be exhausted by one act ; but in drawing dis tinctions on this.point, each case must rest upon its own circumstances. The general principle may be thus stated: when by the terms of the undertaking, by the recitals in the instrument, or by a reference to the cus tom and course of dealing between the parties, it appears that the guaranty looked to a future course of dealing for an indefinite time, or a succession of credits to be given, it is to be deemed a continuing guaranty, and the amount expressed is to limit the amount for which the guarantor is to be responsible, and not the amount to which the dealing or whole credit given is to extend. 7 Pet. 113 ; 2 Tyrwh. 86 ; 3 Barnew. & Ald. 593. Thus, a guaranty for any goods to one hundred pounds is continuous, 12 East, 227 ; or for "any debts not exceeding," &c., 2 Campb. 413; or, " will undertake to be answerable for any tallow not exceeding," &c., but " without the word any it might perhaps have been confined to one dealing." 3 Campb. 220, per Ellen borough, C. J. The words, 661 do ,hereby agree to guaranty the payment of goods ac cording to the custom of their trading with you, in the sum of £200," are held to consti tute a continuing guaranty, .6 Bingh. 244; so of the words, " I agree to be. responsible for the price of goods purchased at any time, to the amount of," &c. 1 Mete. Ma,se. 24. The words " answerable fbr the amount of five sacks of flour" are clearly not continuous.
6 Bingh. 276. See 6 Maule & S. 239. . 22. Where the surety is bound for the acts of the principal in a certain capacity or office, the obli,gation ceases, as we have seen, above, on the termination of the office. But, besides being limited in point of time to the duration of the particular employinent, it is essential, to bind the surety, that the liabilities of the principal should be of such a character as may fairly be covered by the contract. In official bonds, the liability of the surety is limited to the acte of the principal in his official capacity: e.g. a surety on a cashier's bond is not liable for money collected by the cashier as an attorney-at-Jaw, and not ac counted for to the bank. 4 Pick. Mass. 314. So also where one was surety, and the bond was conditioned on tbe accounting by the principal for money received by him in virtue of his office as parish overseer, the surety was held not liable for money borrowed by the principal for parochial purposes. 7 Barnew. k C. 491. Oa the other hand, a surety on a collector's bond is liable for his principal's neglect to collect, as well as failure to pay over. 6 Carr. & P. 106.
, As the surety is only liable to the obliga tions fairly intended at the execution of the bond, he cannot be held for a breach of new duties attached to his principal's office, Theo bald, Surety. 72 ; 4 Pick. Mass. 314, or if any material change is made in the duties. 2 Pick. Mass. 223.
If one guaranties payment for services, and Lae promisee partly performs the services, but fails of completing them from no fault of his own, the guarantor is liable to the amount of the part-performance. 12 Gray, Mass. 445.
A bond for faithful performance of dut:es renders the sureties responsible for ordinary skill and diligence, as well as for integrity. 12 Pick. Mass. 303.
23. The contracts of guaranty and surety ship are not negotiable or assignable, and in general can be taken advantage of only by those who were included as obligees at the formation of the contract. 3 McLean, 279; 4 Cranch, 224. Accordingly, the contract is terminated by the death of one of several obligees, 4 Taunt. 673 ; 8 East, 484 ; 7 Term, 354, or by material change, RS incorporation. 3 Bos. & P. 34. But where a bond is given to trustees in that capacity, their successors can take advantage of it. 12 East, 399. The fact that a stranger has acted on a guaranty does not entitle hun to the benefits of the con tract, 20 Vt. 499 ,• and this has been held in the case of. one of two guarantees who acted on the guaranty. 3 Tex. 199.
It is stated that a guaranty addressed to no one in particular may be acted on hy any one, 1 Parsons, Contr. 567 ; 22 Vt. 160 ; but the true rule would seem to be that in such cases a party who had acted on the contract might show, as in other contracts, that he was a party to it within the intention at the making ; the mere fact that no obligee is mentioned does not open it to everybody.