of his contract; and if he does not assent to any variation of it, and a variation is made, such variation operates a release of the surety. In a case of a surety standing bound for the fidelity or capacity of a principal appointed to a particular office or employment, if the nature of the employment is so changed by the act of the employer that the risk of the surety is materially altered from what was contemplated by the parties at the time of entering into the bond, the surety has a right to say that his obligation does not extend to such altered state of things. This is a doctrine in regard to which the authorities all agree. Miller v. Stewart, 9 Wheat. 680; Pybus v. Gibb, 6 El. & Bl. 902; Bank v. Dickerson, 41 N. J. Law 448; Mumford v. Railroad Co., 2 Lea 393. And it is a principle of universal application that, in order to arrive at the intention of the parties, the contract itself must be read in the light of circumstances under which it was entered into. General or indefinite terms employed in the contract may be thus explained or restricted in their meaning and application; and the contract must be so construed as to give it such effect, and none other, as the parties intended at the time it was made. These principles are elementary; and applying them to the terms of the bond, when those terms are considered in reference to the facts of the case, there would seem to be no doubt of the correctness of the ruling of the court below. As we have said, regard must be had to the intention of the parties when the bond was executed; and whatever facts will shed light upon the question of intention may be considered in construing the bond. Mumford v. Railroad Co., supra. Hence we may look to the position held in the bank by Lisle at the time the bond was given. He had been appointed assistant bookkeeper, and it was with reference to that appointment that the bond was given to, and accepted by, the bank. The bond recites the fact that Lisle had been appointed a clerk in the bank, and the extrinsic facts identify the clerkship as that of assistant bookkeeper. That position, however, had not at the time. of the bond given, and has never had, any of the duties and functions pertaining to it that pertain to the position of note teller and discount clerk, to which Lisle was subsequently appointed. This latter position was one entirely different from that of bookkeeper, and was of great responsibility, and, from its very nature, was of much greater risk and peril to the surety than the former position held by Lisle. It is true, the terms of the

condition of the bond are very large and comprehensive, but they all have reference to the previous appointment as clerk. By the terms of the bond it was certainly competent to the board of directors, or to the president or cashier, to impose additional consistent duties upon Lisle to those then pertaining to the position of bookkeeper; but not to impose duties upon him that would entirely change the nature and grade of his position in the bank, and enhance his responsibility, and thereby essentially increase the risk to the surety on his bond. This could only be done by the assent of the surety, and it is not pretended that such assent was ever obtained. And this is strictly in accordance with the principle maintained by this court in the case of Strawbridge v. Railroad Co., 14 Md. 360. In that case it was held that the surety was not exonerated; but it was so held because it was found that the nature of the agent's duties were not changed, and no new or different duty was imposed upon him by the alteration in the regulations of the company at the particular station. Indeed, it was conceded by the court that, if the employment and duties of the agent had been essentially changed, the surety would not have been liable; and no well-considered case has been cited that gives sanction to a different principle. It follows from what we have said that the judgment below must be affirmed.

C.

A change of duty imposed by statute does not discharge the surety.

Appeal from the circuit court of Holmes county.

Hon. C. H. CAMPBELL, J. On the 13th of March, 1882, an action was brought in the name of the State, suing for the use of Holmes county, against J. S. Hoskins and his sureties, on his bond as tax collector of that county, for two several sums of money, for the years 1876 and 1877 respectively, which, it was declared, he had collected and failed to pay over to the treasurer of the county as the law required of him and as he was bound by the terms of his bond to do.

The third plea set up the defence that "after the signing of said bond by said defendants, the said plaintiff, without the consent of the said defendants, on the twelfth day of January, 1877, by an act of the Legislature of the State of Mississippi, approved on said day and entitled 'An act to provide for the collection of the outstanding revenue for the fiscal year 1876,' altered, changed, and extended the time for the collection of taxes due the State of Mississippi and the county of Holmes, and the time for the payment thereof by the said Hoskins to the State and county treasuries; whereby said defendants were released as sureties on said bond."

The fourth plea contained the same defence as the third, except that the act of the legislature relied upon in the latter as releasing the defendants as sureties on the bond was an act entitled: "An act in relation to the public revenue and for other purposes," approved February 1, 1877. To the third and fourth pleas demurrers were filed and they, too, were overruled. The plaintiff declined to plead over and appealed to this court.

CAMPBELL, C. J., delivered the opinion of the court.

We decline to follow the courts of Illinois, Tennessee and Missouri, in their views that sureties on the bond of a tax collector are discharged by an act of the legislature passed after the execution of the bond, without their consent, giving further time for the collection of taxes and settlement by the officer, and we embrace and declare the more just and politic doctrine of the courts of Virginia, Maryland, and North Carolina, and hold that the official bond of the tax collector is given with a full knowledge of the right of the legislature to alter the dates fixed by law for the collection of taxes and the settlement of the collector, and subject to the exercise of that right at the pleasure of the legislature, without the assent of the sureties. The Commonwealth v. Holmes, 25 Gratt 771; Smith v. The Commonwealth, 25 Gratt 780; The State v. Carleton, 1 Gill 249; Prairie v. Worth, 78 N. C. 169. See also Smith v. Peoria, 59 Ill. 412; Bennett v. The Auditor, 2 W. Va. 441; Cooley on Tax, 502.

The demurrer to the third and fourth pleas should have been sustained.

d. Sureties on a fidelity bond are entitled to reasonable notice of the principal's default and failure to give such notice will discharge sureties.

SINGER MAN'FG CO. v. LITTLER. 1881.

56 Iowa 601; 90 N. W. Rep. 905.

Appeal from Wapello circuit court.

Action at law. The cause was tried to the court below without a jury, and judgment was rendered for defendants. Plaintiff appeals. The facts of the case appear in the opinion.

BECK, J. 1. The action is upon a bond executed by Littler as principal, and the other defendants as sureties, conditioned that Littler shall pay to plaintiff all his indebtedness to it, existing before or afterwards to exist, whether upon notes, accounts, or in any other manner. The petition alleges that Littler became agent of plaintiff for the sale of sewing machines, and the bond in suit was executed when he was appointed, to secure plaintiff from loss that might accrue on account of his employment. The petition alleges that Littler became delinquent in his payments and executed a note to plaintiff, upon which a judgment was afterward rendered for the amount of his indebtedness. The sureties answered the petition, alleging that Littler and the plaintiff entered into an agreement whereby Littler became plaintiff's agent, and became bound to pay to plaintiff money upon the sales of sewing machines, or upon the indorsement of paper taken upon such sales, as stipulated in the agreement. The agreement provides that either party may terminate the contract at their pleasure. Other conditions need not be set out.

The answer further alleges that plaintiff had terminated Littler's agency before the note was executed by him, and that the defendants had no notice at any time that Littler was in default, or that any claim was made by plaintiff against them upon the bond. Upon a demurrer to this answer, the court held that the defendants were entitled to notice of the amount due from Littler within a reasonable time after the settlement between him and plaintiff. The court found upon the trial that no such notice was given to the defendants, wherefore they suffered loss, and that plaintiff, therefore, is not entitled to recover.

2. The controlling question in the case, and the only one argued by counsel, involves the correctness of the court's ruling in holding that defendants are not liable for the reason that notice was not given them of the extent of Littler's liability within a reasonable time after his agency was terminated, and his indebtedness fixed by his settlement with plaintiff. The ruling of the court, we think, is correct, and in accord with Davis. Sewing Machine Co. v. Mills, 8 N. W. 356. We held in that case, "where the guaranty is a continuing one, and the parties must have understood their liability thereunder would be increased and diminished from time to time, and the guaranty is uncertain as to when it will cease to be binding upon the guarantor, and when the party indemnified has the power at pleasure to annul and put an end to the contract guaranteed, without the knowledge of the guarantor, he is entitled to notice, within a reasonable time after the transactions guaranteed are closed, of the amount of his liability thereunder." It will be observed, upon considering the statement of the terms of the contract guaranteed as above set out, that they are within this rule, and that under it the defendants in this case are not liable, in the absence of the notice contemplated therein.

3. But counsel for plaintiff, in an ingenious argument, attempt to distinguish this case from Davis Sewing Machine Co. v. Mills. They insist that while the contract in that case was a guaranty, in this case defendants are not guarantors, but are sureties for Littler, and are jointly liable with him upon an original contract. The error of this position is apparent. Littler was or was about to become indebted to plaintiff upon the contract under which he was appointed agent. Defendants were not bound upon that contract. Neither were they bound upon the notes, accounts, acceptances, or upon any contract upon which Littler became indebted to plaintiff. They became first and only bound upon the bond, whereby they guaranteed that Littler would pay his indebtedness to plaintiff in whatever form it assumed. A guarantor becomes bound for the performance of a prior or collateral contract upon which the principal is alone indebted. A surety is bound with the principal upon the contract under which the principal's indebtedness arises. This is a familiar doctrine of the law. Upon applying it to the facts of the case, it will be seen that defendants are guarantors, and not sureties, for the performance of the contract upon which Littler's