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1824.

Wear.

Reference was had to the act of 1786, and the cession action the same subject, but they add nothing to the provisions of the act of 1784.

The effort is to construe this act as virtually repealing the previously existing laws, that probibit surveys of land within the Indian boundary, and as opening the whole State to the righit of removing warrants.

We are of opinion, that there are several considerations, which repel this construction.

It is obvious, that the lands to which such removals are authorized, must be lands.previously subjected to entry and survey, otherwise the absurdity occurs, of a reservation in favour of entries and surveys which the existing laws have declared to be nullities.

Again; "the Surveyors are authorized and required to survey and make return, in like manner as for other surveys and returns is by law directed." But does any law authorize or enjoin a survey of the Indian country? or sball this act be construed to enjoin as a duty, that which an existing act prohibits under a penalty ?

These considerations remove all doubt, on the correct construction of the law respecting removed warrants ; but if doubts did exist, the general policy and course of legislation of the State would forbid such a construction. The purport of the law is, to authorize removals to that land only, which might be at the time legally entered and surveyed by other warrants.

1824. Miller

to Stewart.

We are of opinion, that there is error in the judgment of the Court below, in refusing to let the grant be read to the jury.

Judgment reversed.

(SURETY.)

MILLER V. STEWART and others.

The contract of a surety is to be construed strictly, and is not to be

extended beyond the fair scope of its terms. Where a bond was given, conditioned for the faithful performance of

the duties of the office of Deputy Collector of direct taxes for eight certain townsvips, and the instrument of the appointment, referred to in the bond, was afterwards altered, so as to extend to another township, without the consent of the sureties, held, that the surety was discharged from his responsibility for moneys subsequently collected by his principal.

THIS was a case certified from the Circoit Court for the District of New Jersey, upon & certificate of a division of opinion of the Judges of that. Court. It was an action of debt upon bond, and the material facts disclosed in the pleadings were, that the plaintiff, Ephraim Miner; being Collector of the direct taxes and internal duties for the fifth Collection District of New-Jersey, by an instrument of appointment, under seal, and pursuant to law, appointed Stephen C. Ustick bis Deputy Collector, for eight townships within his

1824.

Miner

.

Stewart.

district. Upon that occasion, the defendant, Thomas Stewart, and certain other persons, as sureties, executed a writing obligatory, with Ustick, to Miller, in the penalty of 14,000 dollars, upon the following condition, viz. “ The condition of the foregoing obligation is such, whereas Ephraim Miller, Esquire, Collector, as aforesaid, hath, by authority vested in him by the laws of the United Statės, appointed the said Stephen B. Ustick, Deputy Collector of direct taxes and internal duties, in the fifth Collection District of New-Jersey, for the townships of Nottingham, Chesterfield, Mangfield, Springfield, New-Hanover, Washington, Little Egg Harbour, and Burlington; in the county of Burlington; now, therefore, if the said Sttphen C. Ustick, has truly and faithfully discharged, and shall continue truly and faithfully to discharge, the duties of the said appointment, according to law, and shall particularly faithfully collect and pay, according to law, all money assessed upon said townships, then the above obligation to be void, and otherwise, shall abide and remain in foll force and virtue.” After the execution of this bond, and before Ustick had, in any manner, acted under this appointment, or collected or received any moneys under the same, Miller, with the assent of Ustick, but without the assent or knowledge of the defendant, Stewart, altered the same instrument of appointment, by interlining ta it another township, called, “ Willingborough," thereby making it an appointment for nine instead of eight townships; and under the appointment, so altered, Ustick received, within the original

Vol. IX.

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1824.

Miller

v. Stewart.

eight townships, certain moneys, as taxes,' wbich he omitted to account for, and this omission was the breach-stated in the declaration. The question for the opinion of the Court, upon the special pleadings and dernurrer, was, whether the alteration so made, without the consent of Stewart, discharged him from any responsibility for the moneys so subsequently collected by Ustick.

Mr. Wood, for the plaintiff, admitted the general doctrine, that where the contract is annulled without the asscnt of the surety, there is an end of the guaranty. So, if the contract is, in any material respect, changed by the contracting parties, (whether advantageously for the surety or not,) in respect to that part of it to which he guaranty extends, the surety is discharged for he may, then, well say, non hæc in fædera deni. But, if a change is made in the original contract, by the contracting parties, in a part of the contract to which the guaranty does not extend, such change will not discharge the surety, unless it disadvantageously affected the other part of the contract to which the guaranty does extend. Thus, where the defendant was surety to the plaintiffs, for the performance of duties by a clerk in their banking house, a change of partners was held not to discharge the surety, because, though such change bad an important bearing upon the establishment, it did not come within the scope of the guaranty.“ A mere diminution of that part of

a Barclay v. Lucas, 1 T. R. 291.

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the contract to which the guaranty extends,' as a release of part, would not discharge the surety from the part remaining, it being a part of the thing guarantied, though not the whole. Omne majus in se continet minus: the surety, in such a. case, could not say that he might, be prejudiced by the diminution, for it is settled law, that a part payment of the debt is for the benefit of the obtigor, and prejudicial to the obligee, and, therefore, it cannot be pleaded as an accord and satisfaction."

1. There was no surrender by Ustick of his appointment as Deputy Collector, over the first eight townships. If there was a surrender, it must have been either in fact, or in law, that is, implied in the alteration of the instrument. There was no such surrender in fact; and the alteration of an instrument with consent of parties, does not, in law, imply such a surrender. There are no authorities to warrant the position, that such an alteration implies & surrender. On the contrary, they all say, an alteration of an instrument, with consent, does not vitiate it. In Pagot v. Pagot, when blanks in a deed were filled up after execution, the deed was held good, though not read again, nor re-executed. In Markham o. Gonaston, and Wooly . Constant, the Court went on the ground uot only

a Johnson v. Branna, 5 Johns. Rep. 270.

6 Touch v. Clay, 2 Lev. 33. Shep. Touch. 68. Smith v. Crooker, 6 Muss. Rep. 539.

c 2 Ch. Rep. 187.
d Moore, 547.
e 4 Johns. Rep. 54.

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