Paine, 46 Ia. 550; or that interest should be payable "annually," Marsh v. Griffin. 42 Ia. 403; or "semi-annually," Fulmer v. Seitz, 68 Penn. St. 237; or where a creditor without the surety's consent disposes of a security for the debt in a manner different from that provided in the original contract, the surety is discharged, Polak v. Everett, I Q. B. 1). 669; see Holme v. Brunskill, 3 Q. B. D. 495; or if a creditor parts with property pledged for a debt without the knowledge or against the will of surety, he will lose his claim against the surety to that extent, Kirkpatrick v. Howk, 80 El. 122 - Payment by the principal maker of a promissory note to the payee, and accepted by the latter in good faith and without notice, which is afterwards avoided as a fraudulent preference, will not operate as a satisfaction of the debt so as to discharge the surety. Petty v. Cooke. L R. 6 Q. B. 790.

Anything, therefore, which operates as a novation, discharges the surety. So if a new note be given in discharge of a former one; (n) and it has been adjudged, upon good reasons, that where a surety is in fact discharged by a novation, or by a material change of the debt, and in ignorance of his being thus freed from his liability makes a subsequent acknowledgment of his liability, he cannot be held thereon. (o) But the guarantor may assent to the change, and waive his right of claiming a discharge because of it. (p)

In general, a guaranty to a partnership, is extinguished by a change in the firm, although the copartnership name is not changed. (q) This has been held to be the effect of such

(mm) Grocer's Bank v. Kingman, 16 Gray, 473.

(n) Barge on Suretyship, b. 2, c. 5; Letcher v. Bank of the Commonwealth, 1 Dana, 82; Castleman v. Holmes, 4 J. J. Marsh. 1; Bell v. Martin, 3 Harrison, 167; Farmers' & Mechanics' Bank v. Kercheval, 2 Mich. 504.

(o) Merrimack Co. Bank v. Brown, 12 N. H. 320; Fowler v. Brooks, 13 id. 240. See also Hoe v. Harrison, 2 T. R. 425.

(p) Fowler v. Brooks, 13 N. H. 240. In this case it was determined, that if a surety, with knowledge of the fact that an agreement for an extension of time has been made between the creditor and the principal, make a new promise to pay the debt, he cannot afterwards avail himself of the agreement, as a discharge of his liability, notwithstanding there was no new consideration for his promise. And see Ex parte Harvey, 27 £. L. & E. 272.

(q) Bellairs v. Ebsworth, 3 Camp. 52; Russell v. Perkins, 1 Mason, 368; Weston v. Barton, 4 Taunt. 673. It was here held, that a bond conditioned to repay to five persons all sums advanced by them, or any of them, in their capacity of bankers, will not extend to sums advanced after the decease of one of the five by the four survivors, the four then acting as bankers. Mansfield, C. J., observed: " The question here is, whether the original partnership being at an end, in consequence of the death of change, * although the guaranty given to the firm was ex pressly for "advances by them, or either of them." The mere fact that the partnership is very numerous, does not seem to vary this rule, if the guaranty be given to the whole firm. But where the partnership was numerous, and seven of the members were trustees for the firm, and a bond was given to these trustees to secure the faithful services of the clerk of the company, and a part of the trustees died, there it was held that the surviving trustees might maintain an action on the bond, although it was shown that there had been changes in the company. (r)

Golding, the bond is still in force as security to the surviving four, or whether that political personage, as it may be called, consisting of five, being dead, the bond is not at an end. . . . From almost all the cases, in truth we may say from all (for though there is one adverse case of Barclay v. Lucas, the propriety of that decision has been very much Questioned), it results, that where one of the obligees dies, the security is at an end. It is not necessary now to enter into the reasons of those decisions, but there may be very good reasons for such a construction; it is very probable that sureties may be induced to enter into such a security by a confidence which they repose in the integrity, diligence, caution, and accuracy of one or two of the partners. In the nature of things, there cannot be a partnership consisting of several persons, in which there are not some persons possessing these qualities in a greater degree than the rest; and it may be that the partner dying, or going out, may be the very person on whom the sureties relied; it would therefore be very unreasonable to hold the surety to his contract after such change." See also Bodenham v. Purchas, 2 B. & Ald. 39. But in New Haven County Bank v. Mitchell, 15 Conn. 206, the facts were as follows: The guaranty of A, by its terms, made him responsible to B, a banking institution, for such paper as should be indorsed by the firm of S. M.

1 Locke v. McVean, 33 Mich. 470, decided that the guarantor of the performance of a contract providing for notes at four months without interest, to be renewed, if desired, for sixty days at eight per cent, is not holden for notes running six months with interest for four months at seven per cent and thereafter at eight, nor for six months' notes at eight per cent after four months. See Thomas v. Stetson, 59 Me. 229.

A guaranty may doubtless be a continuing contract, and be unaffected by a change of circumstances, as to the subject-matter, and also as to the parties for whose benefit it shall enure. It may provide, for instance, for the fidelity of a cashier in a bank, as long as it shall continue under its present charter, and under any extension or renewal thereof. So provision may be made for its validity to a partnership after a change of members, perhaps by adequate covenants, even without the intervention of trustees; although it would certainly be the better, if not the only safe way, to constitute trustees. But, from what has already been said, it will be obvious, that unless the contract of guaranty expressly provides for these changes, their occurrence discharges the guarantor from his obligation. (8) *The obligation of guaranty for good conduct does not seem to be one which survives the obligee and passes over to his representatives. They may of course have their action for any liability of the guarantor incurred by the default of the party whose good conduct is guaranteed, during the life of the party receiving the guaranty. But when he dies, the guaranty dies also so far, that if the party for whose good conduct the guaranty is given, goes on with the same service as before, but now rendering it to the representatives of the deceased, they cannot hold the guarantor for the default of one who is now at work for them. Thus, a bond for the good conduct of a clerk, when the obligee died, and the executor employed the same clerk in arranging and finishing the business of the obligee, was not held sufficient to maintain an action by the executor for misconduct of the clerk after the death of the obligee. (t) 1