So the obligation may cease by a change in the character of the office or employ ment; 3 Wils. 530 ; but an alteration in the character of the obligees, by taking in new partners, does not necessarily terminate the obligation ; 10 B. & C. 122. But where an essential change takes place, as the death of the obligee, the obligation is terminated, although the business is carried on by the executors; 1 Term 18.
Where one becomes surety for two or ei ther of them, the obligation is terminated by the death of one of the principals; 1 Bingh. 452; but this is where thy obliga tion is essentially personal ; and where a bond for costs was given by two as "defend ants," the surety was not discharged by the death of one; 5 B. & Ald. 261. A surety for a lessee is not liable for rent after the term, although the lessee holds over ; Brewer v. Knapp, 1 Pick, (Mass.) 332.
If the law provides that a public officer shall hold over until a successor Is appoint ed, the sureties on the official bond are li able during such holding over ; Thompson v. State, 37 Miss. 518; Amherst Bank v. Root, 2 Mete. (Mass.) 522; contra, in the case of officers of corporations; Chelmsford. Co. v. Demarest, 7 Gray (Mass.) 1; but the liability of such surety extends only for such reasonable time as would enable the suc cessor to be appointed ; State v. Powell, 40 La. Ann. 241, 4 South. 447. And this provi sion is not controlled by an alteration of the law extending the term but leaving the pro vision intact ; Corn. v. Drewry, 15 Graft (Va.) 1. But when the term of an office created by statute or charter is not limited, but merely directory for an annual election, it seems the surety will be liable, though after the year, until his successor is qualified ; Sparks v. Bank, 3 Del.. Ch. 225.
In bonds, the penalty is the extreme amount of liability of the surety; but va rious circumstances may reduce the liability below this ; Clark v. Bush, 3 Cow. (N. Y.) 151; 6 Term 303. If the engagement of the surety is general, the surety is understood to be obligated to the same extent as his principal, and his liability extends to all the accessories of the principal obligations ; Scul ly v. Hawkins, 14 La. Ann. 183.
A surety's liability will not ordinarily ex tend beyond the penal sum of the bond, un less he has in some way resisted or obstruct ed the recovery of the claim; Thomas Laughlin Co. v. Am. Surety Co., 114 Fed. 627, 51 C. C. A. 247.
A surety on a cashier's bond is not liable for money collected by the cashier as an attorney-at-law, and not accounted for to the bank; Dedham Bank v. Chickering, 4 Pick. (Mass.) 314. So also where one surety, and the bond was conditioned on the ac counting by the principal for money received by him in virtue of his office as parish over seer, the surety was held not liable for mon ey borrowed by the principal for parochial purposes; 7 B. & C. 491. But a surety on a collector's bond is liable for his principal's neglect to collect, as well as failure to pay over ; 6 C. & 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 ; Dedham Bank v. Chickering, 4 Pick. (Mass.) 314; or if any material change is made in the duties; Boston Hat Manufac tory v. Messinger, 2 Pick. (Mass.) 223. A surety on an official bond is said to be liable generally for the faithful performance of duties imposed upon the officer, whether by laws enacted before or after the execution of the bond, where such duties are properly within the scope of the office ; Brandt, Sur. & Guar. § 548.
If one guarantees payment for services, and the promisee partly performs the serv ices, but fails of completing them from no fault of his own, the guarantor is liable to the amount of the part-performance; Mellen v. Nickerson, 12 Gray (Mass.) 445.
A bond for faithful performance of duties renders the sureties responsible for ordinary skill and diligence, as well as for integrity; American Bank v. Adams, 12 Pick. (Mass.) 303.
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 B. & Ald. 593.
A guaranty may be continuing or may be exhausted by one act. It is said that there is no general rule for determining the ques tion ; Brandt, Sur. & Guar. § 156. The general principle may be thus stated: When by the terms of the undertaking, by the re citals in the instrument, or by a reference to the custom 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; Douglass v. Reynolds, 7 Pet. (II. S.) 113, 8 L. Ed. 626 ; 3 B. & Ald. 593. Thus, a guaranty for any goods to one hun dred pounds is continuous ; 12 East 227; or for "any debts not exceeding," etc.; 2 Camp. 413 ; or, "I will undertake to be answerable for any tallow not exceeding," etc., but "without the word any it might perhaps have been confined to one dealing;" 3 Camp. 220. The words, "I do hereby agree guaranty the payment of goods according to the custom of their trading with you, in the sum of £200," are held to constitute a con tinuing 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," etc.; Bent v. Hartshorn, 1 Mete. (Mass.) 24. The words "answerable for the amount of five sacks of flour" are clearly not continuous ; 6 Bingh. 276. The court will look at the surrounding circumstances, in order to determine; L. H. 4 C. P. 595.