show, that, as to any disbursements of money after the 30th of November, 1822, for which Swartwout was entitled to credit, it was at the election of the government to apply them to either account. But there is no necessity for the application of the principle to this case; for, upon looking into the account, we find that after crediting Swartwout with all his disbursements up until the 30th of November, 1822, there remained, on that day, a balance in his hands unaccounted for, much beyond the penalty of the bond; so that no injustice is done to the surety in the manner of settling the ac

count.

Judgment reversed, and a venire facias de novo awarded.

[Surety.]

M'GILL et al., Plaintiffs in Error,

Mr. Justice Johnson delivered the opinion of the court:

This cause comes up by writ of error from the Circuit Court of the United States, held for the district of Connecticut, in which the defendants here obtained a judgment against the plaintiffs upon a penal bond, in which M'Gill was principal, the other defendants sureties.

M'Gill was cashier of one of the branches of the Bank of the United States, and this bond was given in the penal sum of $50,000, conditioned for the due performance of that office.

The replication sets out a great variety of breaches, and the cause was decided below up. on a special verdict, by which was found for the plaintiffs the sum of $66,548, consisting of a variety of items upon which interest is *charged severally, from the date of [*513 the embezzlement or other breach, to the time of finding the verdict.

The verdict then finds two payments, one of $20,000, made by one of the sureties on the 16th of December, 1820; the other of $500, made by another of the sureties on the 22d of December, 1820, on which they also calculate interest to the date of the verdict, and deducting the amount of principal and interest, strike a balance of $43,182.50.

It also finds the following facts: "That the THE PRESIDENT, DIRECTORS AND COM-president and directors of the Bank of the UnitPANY, OF THE BANK OF THE UNITED STATES, Defendants in Error.

ed States, on the 27th of October, 1820, at Philadelphia, passed the following resolution, to wit: "Whereas it appears, by the report of a committee of the office of discount and de

cashier of that office, has been guilty of a gross breach of trust, in knowingly suffering overdrafts to be made by individuals; also by making overdrafts himself; therefore, resolved, that A. W. M'Gill, cashier of the office at Middletown, be, and he is hereby, suspended from office till the further pleasure of the board be known.

A. W. M'G. gave a bond to the Bank of the Unit-posit at Middletown, that Arthur W. M'Gill, ed States, with sureties, conditioned for the faith ful performance of the duties of the office of cashler of one of the offices of discount and deposit during the term he should hold that office. The president and directors of the bank having discovered 512] that he had been guilty of a gross breach of trust, passed a resolution at Philadelphia on the 27th of October, 1820, "that A. W. M'G., cashier, etc., be, and he is hereby suspended from office, tili the further pleasure of the board be known;" and another resolution, "that the president of the office at Middletown be authorized and requested to receive into his care, from A. W. M'G., the cashier, the cash, bills discounted, books, papers, and other property in said office and to take such measures for having the duties of cashier discharged as he may deem expedient." These resolutions were immediately transmitted by mail to the president of the office at Middletown, who received them on the morning of Sunday, the 29th of the same month, but did not communicate them to the cashier, nor carry them into effect, until the afternoon of the 30th, between four and five o'clock: Held, that the sureties continued liable for his defaults until

that time.

"On motion, resolved, that the peresident of the office at Middletown, be authorized and requested to receive into his care, from A. W. M'Gill, the cashier, the cash, bills discounted, books, papers, and other property in said office, and to take such measures for having the duties of cashier discharged, as he may deem expedi ent."

Which resolutions were immediately transmitted by mail to the president of the Middletown office, who received them on the morning of Sunday, the 29th of the month, but did not communicate them to M'Gill until the afternoon of the 30th, between the hours of four and five in the afternoon.

On such a bond, the recovery against the sureties is limited to the penalty. Partial payments having been made by the suretles (subject to all questions), the application of these payments was made by deducting them from the penalty of the bond, and allowing Interest on the balance thus resulting, from the commenceIt then finds, that all the breaches were inment of the sult, there having been no previous decurred before the 30th, and goes on to find almand of the penalty, or acknowledgment that the whole was due.

ternately, so as to enable the court to give judg ment, according to its views of the law, as between the parties. There appear to have been various questions argued in the court below, some of which were decided for the plaintiff, HIS cause was argued by Mr. D. B. Ogden some for the defendant; but as the [*514

But interest was refused to the sureties on the payments.

T for the plaintiff in error, and by Mr. Web- plaintiff below seeks an affirmance of the judg

ster for the defendants in error.

ment, and has not sued out a writ of error, it follows, that we confine ourselves to those points only which were decided against the plaintiff here. These were two, one of them going to the whole right to recover, the other

to the application of the payments towards the discharge of the sum to be recovered.

[Guaranty. Evidence.]

RICHARD DRUMMOND, surviving partner of
Charles Drummond,

V.

The first of these was, whether the suretics were not discharged ipso facto from further liability, by the resolution of the parent bank on the 27th; or if not on that day, then on the 29th, the day on which it was received at Mid- THE EXECUTORS OF GEORGE PRESTMAN. dletown by mail. If discharged on either of those days, it would follow, that the plaintiffs below could not have judgment, since the finding was up to the day following.

We are unanimously and decidedly of opinion, that the ground assumed by the defendants below cannot be maintained. What was there in the resolutions of the parent bank to discharge the obligors at all from their liability The resolution was only to suspend, and this implies the right to restore. The cashier's salary went on, and had the board rescinded their resolution, what necessity would there have existed for a redelivery of his bond?

But there is no necessity for placing the decision on this ground, since, notwithstanding the resolution of the board is expressed in the present tense, a future operation must necessarily be given it, from a cause that could not be overcome, the distance of the parties from each other. Time became indispensable to giving notice, and the day on which the communication reached the president of the Middle

town bank, was a day not to be profaned by the business of a bank. There was, then, no obligation to deliver the notice, and dispossess the cashier, until the 30th, and the law makes no fractions of a day.

The court below, in applying the payments, directed them to be deducted from the penalty of the bond, and then gave interest upon the balance thus resulting. This, with the exception of the interest, was the most favorable application possible for the defendants below, and the interest on the balance having been only allowed from the date of the suit, and the sum thus ascertained falling short of the penal515*] ty of the bond, we think the defendant below has nothing to complain of. It will be discovered, by reference to dates, that the payments here made preceded the institution of the suit, and although made by the sureties, they were made severally, for anything that appears to the contrary from the verdict. Technically, then, the judgment to be entered would have been a judgment for the penalty of the bond, and, in applying the partial payment, the court would have been governed by those principles which have been transferred in practice from the courts of equity to the courts of law, in deciding on what terms a party shall be released from the penalty of his bond. These always are, on payment of principal, interest and costs. And it can constitute no objection to the application of this principle to the case of these obligors, that no interest was allowed them during the snort interval between the payment and the suing out of the writ, since the breaches were incurred long before, and interest for the same period is refused to the bank.

Judgment affirmed, with six per cent. inter

est.

The following letter of guaranty, "Capt. Chas. Drummond,

"Baltimore, 17th Nov. 1803.

"Dear Sir-My son William having mentions to me, that, in consequence of your esteem and property of your's and your brother's in his hands friendship for him, you had caused and placed for sale, and that it is probable, from time to time, you may have considerable transactions together: on my part, I think proper to guarantee to you the conduct of my son, and shall hold myself llable, and do hold myself ilable, for the faithful discharge of all his engagements to you, both now and in (Signed,) Geo. Prest man.' will extend to a partnership debt incurred by Will lam P. to Charles Drummond, and Richard [510 his brother, it being proved that the transactions to which the letter related were with them as partners, and that DO other brother of the said Charles was interested therein.

future."

In such a case, the record of a judgment confessed by the principal, William P., to Richard D.. as surviving partner of Charles and Richard D., for the amount of the debt due by William P. to the partnership firm, was held to be admissible in evidence, inter alia, to charge the guarantee, George P., under his letter of guaranty.

THIS cause was argued by the Attorney-General and Mr. Meredith for the plaintiff,' and by Mr. Taney and Mr. Donaldson for the defendant.'

Mr. Justice Johnson lelivered he opinion of the court:

This case arises on the following state of facts: Richard and Charles Drummond, being engaged in some joint mercantile adventures, which appear to have been carried on chiefly by Charles, made consignments in the year 1803 to William Prestman, then doing business as a George commission merchant in Baltimore. Prestman, the father of William, thereupon addressed to Charles Drummond a letter of guar antee in these terms:

Stark. Ev. 1021, 1602; 7 Taunt. 295; 10 Easty
1.-11 Wheat. Rep. 74; 2 Evans' Pothier, 212;8
Rep. 271; Tell. Guarant. 105; 3 Term. Rep. 454; 3
Cranch, 492; 3 Wheat. Rep. 148; Note 1.

2.- 2 Saund. 411, 415; 2 Maul. & Selw. 363; 5 Bos. & Pull. 175; 4 Cranch. 224; 7 Cranch, 69; 1 Mason's Rep. 361, 371; 5 Esp. Cas. 26; 3 Stark. Ev. 1386; i Stark. Ev. 192; 3 Harris & M'enry, 342; 4 Johns. Rep. 511; 10 Ves. 123.

NOTE-Continuing guarantees.

Where defendant gave plaintiff a guarantee for the payment of any goods he hath or may supply W. P. to the amount of 1001." It was held that the guarantee was a continuing or standing guarantee. not confined to the first hundred pounds worth of goods furnished, but to all future supplies of goods.

Mason v. Pritchard, 12 East, 227.

So, where the guarantee was "in consideration of

your supplying my nephew with earthenware and
china, I hereby guarantee the payment of any bills
you may draw upon him on account thereof to the
amount of 2001, it was held a continuing guaran
tee, remaining as standing security to the amount
Mayer v. Isaac, 6 Mees. & W. 612:
specified.
Hitchcock v. Humfrey, 6 Scott. N. R. 549.

From a continued liability under seal the surety has no means of escape at common law; he cannot recall the bond, covenant or obligation, that he has entered into, and say that he will no longer be re

"Capt. Charles Drummond,

Baltimore, 17th Nov. 1803. "Dear Sir-My son William having men tioned to me, that, in consequence of your esteem and friendship for him, you have caused and placed property of yours and your brother's in his hands for sale, and that it is probable, from time to time, you may have considerable transactions together; on my part, I think proper, by this, to guarantee to you the conduct of my son, and shall hold myself liable, and do hold myself liable, for the faithful discharge of all his engagements to you, both now and in future." 517*]

*The connection in business was kept up between the Drummonds and William Prestman until Charles' death, after which Richard, who resided in Norfolk, came up to Baltimore to adjust the accounts of the concern with William, and then received from him an account stated as between him and Charles Drummond, on which, after some corrections, which appear on the face of the account, the balance is struck, for which this suit is instituted.

This account commences with an acknowledgment of a balance due the Drummonds in November, 1804, and brings down their transactions to December 20th, 1805.

Upon this account a suit was instituted against William Prestman in 1806, in the name of Richard, survivor of Richard and Charles Drummond, and a judgment confessed. William Prestman was dead at the time of the trial of this cause.

This suit is now instituted upon the letter of guaranty; and the declaration, after setting out the letter and the subsequent transactions with William, demands the sum acknowledged due upon the account stated.

evidence conducing to prove the joint dealings of the Drummonds.

In the progress of the trial the defendants took exception to the admission in evidence of the record of recovery against William. The court overruled the exception, and it went to the jury, but the court refused to grant a prayer of the plaintiff, that they would instruct the jury that, upon the whole evidence he was entitled to a verdict. And to this refusal the bill of exceptions is taken, upon which the princi. pal question in this cause arises.

As evidence was permitted to go to the jury, conducing to prove, as well the copartnership between Richard and Charles Drummond, as the balance due by William Prestman, and the interest of Richard in that balance, it follows, that the refusal of the court to give that instruction, could only have been upon [*518 the ground, that the guaranty did not cover this demand; and this, accordingly, has been the principal question made in argument.

It is contended, that the correct construction of this guaranty will exclude a copartnership debt; that, in its language and import, it is confined to liabilities to be incurred by William to Charles or Richard severally, or to Charles individually, and cannot be extended to a copartnership interest under a trade ostensibly carried on as between Charles solely, and William.

We have considered this question attentively, and are unanimous in the opinion, that the guaranty may well be construed to cover the joint trade of Charles and Richard. An interest of Richard is expressly contemplated by the guaranty, and the language of the letter seems more naturally adapted to a joint, than a sev eral interest. For, a concern being represented Upon the trial, the plaintiff gave in evidence in the person of any one of its members, the the letter of guaranty, the account stated by use of the pronoun of the second person is nat William, parol evidence of subsequent acknowl-urally suggested, and familiarly resorted to, edgments of its correctness, and the record of recovery upon that account, in which he confesses judgment to Richard, as survivor of Richard and Charles Drummond; also parol sponsible for advances or supplies to the principal, | to be answerable to the extent of 1001., for any talunless in the contract of suretyship he has express- low supplied by you to A. B." Bastow v. Bennett, ly reserved to himself such power, and his liability may be prolonged indefinitely, and for the whole life of the principal, however reckless and extravagant the latter may become. Hassell v. Long, 2 Maule & S. 370; Calvert v. Gordon, 1 Man. & R. 407; 3 Man. & R. 124; Addison on Contr. 668, 2d Am. ed.

But in the case of simple contracts, the surety, though liable for all advances and supplies made with faith of his promise, may at any time revoke such promise, and discharge himself from the future and continuing liability by giving notice to that effect. Ibid.

One therefore comes more readily to the conclusion that a continuing liability was contemplated by the parties when the undertaking is by simple contract and the surety can so readily free himself from the continued liability by notice, than when It is by deed and he is precluded from so doing. The courts seem to favor the more extended and continued liability in the case of simple contracts. See Grant v. Risdale, 2 Har. & J. 186; Rapelye v. Bailey, 5 Conn. 149; Clark v. Bendett, 2 Hall. 197; Bent v. Hartshorn, 1 Met. 24; White v. Reed, 15 Conn. 457; Boyer v. Ewart, 1 Rice, 126; Fellows v. Prentiss, 3 Den. 512; Farmers' Bank v. Kercheval, 2 Mich. 501; Agawan Bank v. Strever, 16 Barb. 82. The language of the following guarantees has been held clearly to import a continuing liability: "I consider myself bound for any debt A. B. may contract with you in his business not to exceed 1001." Merle v. Wells, 2 Camp. 413. "I undertake

when we address ourselves to an individual of the concern. This court is not called upon to decide whether the words might not also be correctly applied to an individual interest as

3 Camp. 220. "I hereby agree to guarantee the payment of goods to be delivered in umbrellas to S. & Co., according to the custom of their trading with you in the sum of 2001." Hargrave v. Smee, 3 Moore & P. 573. "As an inducement to you to sell W. C. goods and continue your dealings with him, I hereby agree and undertake to guarantee to you in a sum of 1001, payable to you in default on the part of the sald W. C. for two months." Allen v. Kenning, 2 Maule & S. 768. "In consideration of your agreeing to supply goods to K. we agree to guarantee any future debt with you to the amount of 6001." Martin v. Wright, 6 Q. B. 917. An agreement with a firm that P. "who has purchased, or is about to purchase, anthracite coal of said firm shall and will pay said firm at such time or times, and at such prices as may be agreed upon between sald firm and said P. for all coal that may be delivered to him up to the 1st day of January, 1878, and in default of his so doing we agree to pay for the same, provided the amount so in default shall not, at any time, exceed the sum of $1,000." Pratt v. Matthews, 24 Hun, 386.

A guarantee indorsed on a lease for years, which provides for a renewal, is a continuing one. Decker V. Gaylord, 8 Hun, 110.

What circumstances establish the fact that a guarantee was inter.ded as a continuing one. Whyte's Bank v. Myles, 73 N. Y. 335.

"I will be and am responsible for any amount which A. B. may draw on you, for any sum not to exceed $1,500, on condition of your acceptance of

against the master is admitted in evidence, fendant in the action. This would go far to against the servant. The present case, how-prove, that even in William Prestman's life, ever, is a much stronger one; it seems unique the stated account would have been evidence in its principle; since the object of introduc- against George; and the fact of a judgment being the record seems not so much to prove that ing entered upon it by confession, could not a judgment was obtained, as that a judgment have been immaterial to corroborate it. was confessed. Now, the proof of William Prestman's liability to Drummond, was indispensable to Drummond's recovery against the guarantee. But this liability might have been proved by a confession in writing, or even by parol, after his death, if not before; then why not by the more solemn act of confessing it of

record?

It is worthy of remark in this case, that the guaranty purports, by its terms, to be something more than a mere suretyship for a debt. The words are, I guaranty to you "the conduct of my son." It partakes, therefore, of the nature of a bond given by a surety for the faithful discharge of a duty; and it cannot be doubted, that, in proving the fact of a breach of the condition of such a bond, the confes sions of the principal, after his death, would be evidence. It would be difficult to assign a 521*] reason why his confessions should lose that character by increasing in their solemnity. We are aware that there are cases which have been thought to maintain principles inconsistent with these doctrines. They are chiefly collected together in the 2d vol. of Mr. Met calf's edition of Starkie's Treatise on Evi; dence, title surety.

The case of Evans et al. v. Beatie, executors, 5 Esp. Cas. 26, seems contra; for there, in a suit against the guarantee of one Copper, for "any woollens that should be furnished him by plaintiff," evidence was offered to prove Copper's parol acknowledgment of certain goods delivered, but refused on the ground that he might be sworn, and it was not the best evidence the nature of the case would admit of.

Here, it will be observed that the principal was living; but we must not be thought to con cur without further consideration, in the doctrine that he could have been equally sworn for the one party, or compelled to give evidence for the other. With the surety he had a direct interest, and against the plaintiff it was equal. ly direct. In the present case the principal was dead. This case is loosely reported, and attributes some observations to Lord Ellenborough which we doubt much the authenticity of.

In the case of Higham v. Ridgway, 10 East's Rep. 122, the doctrine on these subjects is laid down with so much good sense as to speak its own correctness. It is to this effect that the principle to be drawn from all the cases is, that if a person have peculiar means of knowing a fact, and make a declaration of that fact We have examined those cases, and find which is against his interest, it is clearly evi some of them of very little authority, others in-dence after his death, if he could have been exapplicable to the circumstances of the present amined to it in his life-time. On this principle case and generally, in support of our opinion. it is, that entries in receivers' accounts are adThe case of Davis et al. v. Shed et al., ex-mitted; so, also, an acknowledgment by a writ ecutors, 15 Mass. Rep. 6, has no application. It was a suit against the surety of an executor, by a creditor of the deceased, who had obtained judgment against the executor, and received payments of interest upon the debt. The question was, whether this precluded the surety from his plea of the act of limitations of that state, made in favor of executors. The court decided, that it did not preclude him. In that case the record was pleaded in bar, and the decision given, that it was not conclusive.

ness, of a debt to another, or of an acquittance of a debt to himself; because the individual who makes the acknowledgment has no interest of his own to subserve, but does it to his own prejudice. In all such cases, however, the evidence is received with due caution, and its weight must rest with the jury.

The most stubborn case on this subject that we have considered, is that of Beal v. Beck, reported in 3 Harris & M'Henry.

*This was debt upon a sheriff's bond, [*523 In the case of Respublica v. Davis, 3 Yeates, brought against a surety in Maryland. The 128, an attempt appears to have been made to same plaintiff had brought suit, and recovered introduce a record for the purpose of proving judgment against the sheriff for the same cause an admission of counsel in evidence; we can of action, and the court refused to receive the not understand on what principle it was re-record of that judgment in evidence as against jected; but the suit being on a recognizance that one Cobbett should keep the peace, and the breach proposed to be established being the publication of a libel, parol evidence of the confession of Cobbett was admitted to prove, against the surety, that he had published a libel. So that this authority would seem in favor of our doctrine.

So, in the Sheriffs of London v. Tindall, 1 Esp. Cases, 394, which was a suit against the surety of a bailiff, a receipt indorsed on a warrant, in the handwriting of the principal, was admitted in evidence, which amounted to nothing less than a confession that the bailiff had received a sum of money, and ordered the prisoner discharged. It was objected, that the bailiff himself should be sworn, but the judge refused and admitted the evidence, declaring. 522*] that the bailiff was, in fact, the do

the surety. In the inferior court it was rejected on a division of opinion, but in the court of the last resort, we are told, the judgment was affirmed.

On this decision we can only remark, that the report of it is very brief and unsatisfactory; there is no argument of counsel, or other means of determining on what the decision turned. If the attempt was made to introduce the record as final and conclusive against the surety, it was properly rejected, and, in the absence of anything to prove the contrary, we cannot but suspect that such was the true im. port of that decision. In any other view, we should not feel satisfied to recognize its authority.

Judgment reversed, and a venire facias de novo awarded.