agreed to become security for his fidelity, &c., and the condition was that Jones should faithfully account, &c.; it was held that the sureties were liable for the misconduct of Jones, after the obligees had received a new partner into their business. This decision was made on the ground that the intention of the parties was to take and give security to the house; and in England the house frequently continues under the original firm, though there is a succession of partners. But this decision has been questioned by counsel and judges, and probably would not now be regarded as authority, except under precisely similar facts. The case of Wright v. Russell,' there doubted, has been repeatedly confirmed. In Metcalf v. Bruin,' where a bond was given to the trustees of a numerous and fluctuating body, called the Globe Insurance Company, to secure the fidelity of a servant of the company "during his continuance in the service of the company," it was held that the actual existing body of persons, carrying on the same business under the same name, were intended by the bond; and that the obligees, who were trustees of the company, were entitled to sue for a breach of the bond by the servant, which happened after a change in some of the members of the company.

But the recital in the condition of a bond does not confine the responsibility of the obligor to the limits of the recital, where the condition itself manifestly is designed to be extended beyond the recital. The rule holds only in case of general terms consistent with the limitation expressed, or to be collected from the scope of the contract. Therefore, where the condition of a bond, in addition to matter mentioned in the recital, contained a stipulation for indemnity against claims arising from acceptances "or any other account thereafter to subsist" between the parties, it was

13 Wils. 530.

2 12 East, 400.

held that a transaction, not specified in the recital, was provided for in the condition.'

Guaranties, or letters of credit, are construed strictly; the generality of the words being restrained to the particular case in view of the guarantor, in all instances in which such a course is not inconsistent with the terms employed." The principle applied to guaranties is the same which is applied to bonds with conditions; and the cases on both species of contracts are cited by counsel, and commented on by courts, as mutual authorities.

3

In Union Bank v. Clossey, it was held that the condition of a bond that a clerk in a bank should "well and faithfully perform the duties assigned to and trusts reposed in him," applied to his honesty only, and not to his ability; and that for a mere mistake of the clerk, his sureties were not responsible. But in Minor v. Mechanics' Bank of Alexandria, the supreme court of the United States decided that a condition well and truly" to execute official bank duties, included not only honesty, but reasonable skill and' diligence. The supreme courts of Massachusetts, New Jersey and Pennsylvania have made like decisions." "The operations of a bank require diligence, with fitness and capacity, as well as honesty, in its cashier; and the security for the faithful discharge of his duties would be utterly illusory, if we were to narrow down its import to a guaranty against personal fraud only.'

The contracts of sureties are always strictly construed; and it is not improbable that in some of the cases which

1 Sansom v. Bell, 2 Campb. 39; S. P. Com. Dig. Parols, A. 19; Watson v. Boylston, 5 Mass. 411.

2 See 2 Stark. Ev. 648; Fell on Guaranties, chap. v.; Melville v. Hayden, 3 Barn. & Ald. 593; Norton v. Eastman, 4 Greenl. 521.

5 American Bank v. Adams, 12 Pick. 303; State Bank v. Chetwood, 3 Halst. 25; Barrington v. Bank of Washington, 14 S. & R. 405.

• Per Story, J. 1 Pet. 69.

have been cited, a more liberal and extended construction might have been given to the stipulations, if the principal only had been concerned. But the same construction is given to a bond with sureties, when the principal is sued alone, as when all are sued, or the sureties only.'

2

In Williams v. Jones, a bond, given by G., a postmaster appointed for three years, was held to be a security for defaults after the three years expired; he continuing in office, without any new appointment or bond. But his successor had been obliged to give bond for the arrears of G., and had taken out a scire facias against G., and afterwards an extent; and he was held to be entitled to hold G's. land against the assignee of G., who took it from G. before the expiration of three years; as well for the amount of G's. default after that time, as for the small sum in which G. was in arrear when the three years expired. If this case be law, it probably stands on the ground of prerogative, by which the crown, and its debtors and assignees, are placed on different grounds from subjects and their contracts with each other.

4. The whole contract is to be regarded in giving it a construction, and one part is to be interpreted by another. Ex antecedentibus et consequentibus fit optima interpretatio. Turpis est pars, quæ cum suo toto non convenit.“

Most of the cases, cited under the preceding rule, are perhaps equally included in this.

In the Duke of Northumberland v. Errington, Buller, J. said, "it is immaterial in what part of a deed any particular covenant is inserted; for in construing it, we must take the whole deed into consideration, in order to discover the

18 Mass. 276.

2 Bunb. 275.

See Wightwick, 34, The King v. Smith—that the king takes priority of a purchaser, in case of debts of his officers and receivers. The crown has a lien on the officer's lands, &c. in case of a contract by specialty.

♦ Plowd. 161; Winch, 93; 1 Domat, 37, § 10; Shep. Touch. 87. 5 5 D. & E. 526.

meaning of the parties." In that case, it was held that the general words in the beginning of the lessee's covenant, "jointly and severally," &c. extended to all the subsequent covenants, though those words were not repeated in every covenant throughout the deed: Because it would not have answered the lessor's purpose that the lessee should be bound separately in the subsequent covenants. Lord Alvanley says, "however general the words of a covenant may be, if standing alone, yet if from other covenants in the same deed, it is plainly and irresistibly to be inferred that the party could not have intended to use the words in the general sense which they import, the court will limit the operation of the general words. If such an inference does arise from concomitant covenants, they will control the general words of an independent covenant in the same deed." 1

A very early case' illustrates this rule laid down by lord Alvanley. A lessor covenanted that he had made no former grant or any thing whereby the grant or assignment might be in any measure impaired, hindered or frustrated, but that the assignee, by virtue of that grant and assignment, might quietly have, hold, &c. without any impediment or disturbance by him, or by any other person. Dower was assigned to the wife of a former owner of the leased premises, and a suit was brought on a bond given by the lessor to perform the covenants in his assignment; and it was held that the generality of the latter covenant was restrained by the words of the former; that the lessor had covenanted for quiet enjoyment only against other persons having right derived from him.

The ablest and most lucid judgment, on the application of this rule, which the books contain, was given by lord

13 Bos. & Pul. 574, 575.

* Broughton v. Conway, Dyer, 240; Mo. 58; Dalis. 58, pl. 8; S. P. Dalis. 110, pl. 2,

Eldon, in the case of Browning v. Wright.' Parker, J.,2 calls it "a triumph of common sense." Wright bargained, sold, &c. to Browning, his heirs, &c. a parcel of land, and warranted it against himself, and covenanted that notwithstanding any act, by him done to the contrary, he was seized lawfully and absolutely in fee simple, and that he had a good right, full power, &c. to convey. The breach of covenant, alleged in the declaration, was, that Wright had not good right, full power, &c. to convey to the plaintiff, for that one Child and his wife were lawfully and rightfully seized of said land, and had a lawful and rightful title thereto not derived from the plaintiff (Browning), and that he had been obliged to become tenant to Child and wife; and thus lost his fee simple in the estate conveyed. It was held that the covenant, viz., that Wright had good right, lawful title, &c. was either a part of the preceding special covenant, or, if not, that it was qualified by the other special covenants against the acts of himself and his heirs only. "We do not do justice to the parties," said Buller, J., in that case, "unless we look to the whole deed, and infer from that their real intention. The defendant has expressly told us, in one part of the deed, that he means to covenant against his own acts; and are we to say that he has, in the same breath, covenanted against the acts of all the world?" a

3

On the same principle of construction, it was held, where lord Rich, on conveying land, covenanted that it was worth

1 2 Bos. & Pul 13.

28 Mass. 217. See also Stannard . Forbes, 6 Adolph. & Ellis, 572.

* See also, on this point, 1 Leigh's Nisi Prius, 613, 614; Foord v. Wilson, 8 Taunt. 543; Milner v. Horton, McClel. 644; Sicklemore v. Thistleton, 6 M. & S. 9; Sugden on Vendors, ch. xiii.; Gainsford v. Griffith, 1 Saund. 58, and notes; Howell v. Richards, 11 East, 633; Nind v. Marshall, 1 Brod. & Bing. 319; Cole v. Hawes, 2 Johns. Cas. 203; Whallon v. Kaufman, 19 Johns. 97; Knickerbacker v. Killmore, 9 Johns. 106; Barton v. Fitzgerald, 15 East, 530.