is easy for them to ascertain what those trusts are. If these trusts do not enable the executor to continue the guaranty, then the bank has constructive notice that the guaranty is withdrawn.' National Eagle Bank v. Hunt, 16 R. L. 148; Harriss v. Fawcett, L. R. 15 Eq. 311. The authorities uniformly hold either that death, ipso facto, or notice of death, revokes a continuing guaranty. The fact that the instrument is under seal cannot change its nature or construction. Jordan v. Dobbins, 122 Mass. 168, 23 Am. Rep. 305; Offord v. Davies, 12 C. B. N. S. 748. A similar doctrine holds that notice of the dissolution of a co-partnership revokes a continuing guaranty made by the co-partnership. City Nat. Bank v. Phelps 86 N. Y. 484.

The application of these principles to the case in hand is this: All of the discounts for which recovery was had against Gay's estate, and payment made by Gay's executors and Wadsworth, were made after notice of the death of Samuel S. Cowles. His representatives are therefore freed from all liability for such discounts. Liability, if any, for discounts so made upon the credit of the guaranty, could only accrue against the estate of Samuel S. Cowles, and could in no view of the case be maintained against the estate of Horace Cowles or Mary Hardy. Five thousand dollars of the said discounts were made after notice of the death of Augustus Ward. His representatives are therefore freed from all liability for such discounts. The remaining discounts ($6,000) were originally made before the death of Augustus Ward. His death, with notice, did not relieve his estate from liability for such discounts. For all discounts made prior to his death, whether original discounts or renewals or extensions thereof, his estate is liable upon his death. The duty of the bank upon this bond, if it desired to hold the estate of Ward liable, was to enforce its claim upon the paper existent at Ward's death, against his estate. Instead of this, the bank renewed and extended its discounts taking new paper for the old, without the knowledge or acquiescence of the representatives of Ward. Thereafter the bank must look to the remaining guarantors upon the bond. It waived its right to enforce payment from the estate of Ward when it accepted paper in renewal of the old. Each renewal so made had, for its security, the guaranty of the living guarantors upon the bond, who had not notified the bank of the termination of their liability upon the guaranty.

The conclusion arrived at is just to the bank, for it can cease,

upon notice of the death of a guarantor, to renew paper then discounted, and can enforce its payment against the estate of the deceased guarantor. It is just to the remaining guarantors, who can, upon notice of the death of a guarantor, terminate their liability, and, if compelled to pay that liability, by appropriate remedy compel the estate of the deceased guarantor to contribute his proportion to the liability incurred. For all liability arising before notice of the death of the guarantor, the remaining guarantors, can provide by the terms of the guaranty. In the case at hand all the guarantors upon this bond had notice of the death of both Samuel S. Cowles and Augustus Ward, and made no attempt to terminate their liability upon the bond, and no effort to compel the estate of either to help meet the liability existing, but thereafter, without the knowledge, consent, or acquiescence of the representatives of Cowles or Ward, renewed the old paper through a long series of years, and increased their own liability by fresh discounts. A renewal of paper made before the death of a guarantor, upon the credit of a bond guaranteeing payment of such paper, made after notice of said death to the guarantee, terminates the liability of such guarantor after said notice. The precise question at issue was determined in accordance with the conclusions we reach, in the case of National Eagle Bank v. Hunt, 16 R. I. 148, 153. In its opinion, the court said: "The guarantees in the case at bar come within the second class above considered. They were therefore, upon the authorities cited, terminated by the death of the guarantor, and notice of it to the plaintiff, as to all subsequent transactions. As, however, the note described in the declaration had been discounted, and the net proceeds had been paid to the maker prior to the death of the guarantor, the plaintiff would have been entitled to recover but for the fact, set up in the pleas, that, after notice of the death of the guarantor, it extended the time of payment for a further period, by taking a new note from the principal debtor, and receiving the interest thereon in advance, without the consent of the defendant, and without any reservation of his right, assented to by the principal, to insist upon immediate payment by the principal, and, in default of such payment, to pay the debt himself, and proceed at once against the principal. That such action on the part of the plaintiff was sufficient to release the estate of the guarantor, and the defend

ant, as his representative, from liability, is too well established to need the citation of authority."

The question whether a guaranty will be revoked by notice of death, when, by the terms of the guaranty, the guarantor could not in life have revoked the guaranty, is not before us, and we express no opinion upon this point.

The claim that, because the bond of guaranty in this case bound the guarantors to the "full, prompt, and ultimate payment" of all paper discounted after the execution of such bond, therefore the guaranty covers discounts made before the death, and the renewals of such discounts made after the death of the guarantor, cannot be sustained. The guaranty here applies to paper discounted, and to the renewal or extension of such discounts, before the decease of a guarantor; otherwise, a continuing liability existed against the estate of the deceased guarantor so long as the renewals were made. Such a result was not intended by the parties to the bond. They did not intend to continue a liability after the death of a guarantor, for an indefinite period, which he and they could terminate at any time during his life. A contract of guaranty is to be construed so as to promote the use and convenience of commercial intercourse. Davis v. Wells, F. & Co. 104 U. S. 159, 169, 26 L. ed. 686, 690. And its language is not to be extended by any strained construction, for the purpose of enlarging the guarantor's liability (Hall v. Rand, 8 Conn. 560 573); but its construction is to be according to what is fairly to be presumed to have been the understanding of the parties, without any strict technical nicety (Lee v. Dick, 35 U. S. 10 Pet. 482, 493, 9 L. ed. 503, 507; Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273, 281, 45 Am. Rep. 204). These established rules of construction accord with the construction we give to the guaranty before us.

We deem it unnecessary to discuss other questions argued before us, since the questions considered are decisive of the case. We have not overlooked the fact that there has been a misjoinder of parties defendant. The estate of Horace Cowles and Mary Hardy were strangers to the guaranty. The representatives of Samuel S. Cowles are alone liable upon his obligations. There is, as well, a misjoinder of parties plaintiff. Mr. Wadsworth voluntarily paid one half of the amount recovered against the estate of Gay. He cannot now maintain, with Gay's representatives,

an action to compel payment to them of the share of other guarantors paid by him for them.

The Superior Court is advised to render judgment in favor of the defendants.

The other Judges concur.

c. Liability on a bond for faithful performance of duty is not terminated by death of surety.

THE ROYAL INSURANCE COMPANY v. DAVIES. 1875. 40 Iowa, 469; 20 Am. Rep. 561.

The plaintiff's petition states that on or about January 26th, 1872, W. F. Kidder, as principal, and John L. Davies, as surety executed and delivered to the plaintiff their bond as follows:

"Know all men by these presents, that I, William F. Kidder, of the town of Davenport, County of Scott, State of Iowa, as principal, and John L. Davies, of the town of Davenport, County of Scott, State of Iowa, as surety, are held and firmly bound unto the Royal Insurance Company of Liverpool, a corporation authorized by act of Parliament, and located at Liverpool, England, in the sum of one thousand dollars to be paid unto the company, their certain attorneys or assigns, to which payment well and truly to be made, we jointly and severally, bind ourselves, our heirs, executors and administrators, jointly and severally by these presents.

Sealed with our seals and subscribed at Davenport, Iowa, this 26th day of January, 1872.

The conditions of this obligation is such, that whereas the above named W. F. Kidder has been appointed by the aforesaid company their agent for the City of Davenport, County of Scott, and State of Iowa, during the pleasure of the manager and attorney thereof, by reason whereof, and as such agent he will receive into his hands and possession divers sums of money, policies, chattels and other effects, the property of said company, and is bound to keep true and accurate accounts of said property and of receipts and disbursements and to deliver, account for, and pay over the same when demanded and directed according to the instructions of the directors of said company.

Now, therefore, if the said W. F. Kidder shall promptly pay to the said company the amounts received from time to time, and

shall well and truly perform all and singular the duties as agent of said company, as directed, according to the provisions of the charter, by-laws, rules and regulations of said company now existing, or which may be adopted by said company, for and during the time he officiates as said agent, and shall deliver all the property which he may receive and hold as said agent, to his successor in office, or to such other person as the said company, or its authorized officers may direct, then this obligation shall be null and void, otherwise remain in full force and virtue. (Signed.) W. E. KIDDER, (Seal.) JOHN L. DAVIES, (Seal.)

Signed, sealed and delivered in presence of H. Goodrich."

It is further alleged that Kidder was duly appointed agent of plaintiff January 26th, 1872, and continued to act until his death, December 19th, 1872; that at the time of his death he was indebted to the plaintiff in the sum of $219.58, for premiums collected by him in October, 1872, and that plaintiff has expended $11.50 in an effort to collect said sum from the estate of said Kidder.

The defendant answered admitting substantially the allegations of the petition, and alleging as an affirmative defense thereto, that John L. Davies, the surety died on the 23d day of April, 1872; that thereby his estate was discharged from any further liability on said bond, and that up to the time of his decease the conditions of said bond had not been broken, but that the breaches thereof alleged in the petition, happened after the death of said Davies.

To this answer the plaintiff demurred, which being overruled and plaintiff standing thereon, judgment was rendered for defendant. Plaintiff appeals.

MILLER, Ch. J. The question presented in the record is whether the death of Davies, the surety in the bond, operated in law as a discharge of his estate from liability for the default of the principal, happening after the death of the surety. In other words, whether the death of the surety operated to terminate the obligation assumed by him when he executed the bond on his part. It is not claimed on the part of the defendant that the liability of the surety, or his obligation as such, was terminated by reason of any act, or omission of the plaintiff, but it is claimed that the obligation of the surety ceased and the bond became defunct, as to every act done after the death of the surety