Brewer, 2 Car. & K. 828; Helsby v. Mears, 5 B. & C. 504 (as explained in Beale v. Mouls, 10 Q. B. 976); cf. Winston v. Taylor, 28 Mo. 82; s. c., 75 Am. Dec. 112, where cattle were delivered to a firm to be herded. One partner retired with the knowledge of the bailor, and some cattle were lost. In an attempt to hold the retired partner for the loss, it was held that as the bailment was for no definite time, the bailor must remove his property on the change in the firm, or look to the new firm. Directing the new firm to sell and remit was held a discharge of the retired partner.

So where a consignee of goods (a factor) takes a partner and the firm sells the goods, it will be held for the proceeds. Dix v. Otis, 5 Pick. (Mass.) 38; Shoemaker Piano Mfg. Co. Bernard, 2 Lea (Tenn.) 358.

で。

But if a partner retires, he cannot exonerate himself by notifying the shipper that the new firm or continuing partners will receive the goods. Dean v. McFaul, 23 Mo. 76; Hall v. Jones, 56 Ala. 493.

Where the new firm agreed with the retiring partner to continue deliveries under a contract with the plaintiff and accepted payments from him, that gives the plaintiff no right of action against the new firm for breach of contract. Parmalee v. Wiggenhorn, 6 Neb. 322. And see Goodenow v. Jones, 75 Ill. 48.

Where goods were consigned to O for sale on commission, and before any order of sale was given, the consignor was notified that O had taken a partner P, and was led to believe in various ways that the firm had taken the consigned goods to sell, and then accepted the firm as consignees, it was held that, on the insolvency of O, P was estopped to show that O had converted the goods to his own use before the formation of the firm. Coleman v. Pearce, 26 Minn. 123.

Assumption of Lease.-Where one leases property and then forms a firm to occupy the property, the new partners do not become liable for the rent merely by occupying. Pierce v. Als

It

paugh, 83 N. Car. 258; Brooke . Evans, 5 Watts (Pa.) 196; Barlow v. Wainwright, 22 Vt. 88; s. c., 52 Am. Dec. 79.

A written agreement between a lessee of a store and an incoming partner that the partners should be equally liable for all joint obligations does not include rent accruing after the dissolution of this firm, although there was an oral understanding that the new partner should be liable during the term of the lease. Durand v. Curtis, 57 N. Y. 7.

Where, however, the firm holds a lease and one partner assigns his interest to the other, the landlord can recover the whole rent from this partner. Dwight v. Mudge, 12 Gray (Mass.) 23. And see Lucas v. Coulter, 104 Ind. 81, where it was held that the new partner had adopted the lease by his conduct. And see also Wilgus v. Lewis, 8 Mo. App. 336. And Jackson v. Salmon, 4 Wend. (N. Y.) 327, contra.

1. "Where, after breach of a contract, the performance of which is guaranteed, the creditor and principal debtor enter into a new contract, by which the amount of damages then due is made payable on a future day, and upon terms different from those imposed by the original agreement, such new contract presumptively merges the old. In such case, the new obli. gation, having been taken upon a suffi· cient consideration, becomes the exclusive medium by which the rights of the parties in respect to the payment of damages are to be ascertained. Such a contract is not collateral to the original, but in respect to the subject to which it appertains, it merges and supersedes the other It thus appears that the sureties are sought to be held for the failure of their principal to discharge new obligations, not contemplated by the contract to secure the performance of which the bond was given. Into these are imported new terms. They sus pended the right of the creditor to proceed against the principal to collect the original liability, in settlement of which they were given. Because they are new obligations, different in character

from those, the performance of which was guaranteed by the bond, the sureties are not liable for their payment." Weed Sewing Machine Co. v. Winchel, 107 Ind. 260; Steele v. Mills, 68 Iowa 406, Giles v. Crosby, 5 Bosw. (N. Y.) 389; Vose v. Florida R. Co., 50 N. Y. 369; Warden v. Ryan, 37 Mo. App. 466, Roberts v. Donovan, 70 Cal. 108; Simonson v. Grant, 36 Minn. 439, Victor Sewing Machine Co. v. Laughan, 9 Biss. (U. S.) 183; Gallagher v. Roberts, 2 Wash. (U. S.) 191, Williams v. Little, 35 Vt. 323; Anderson v. Davis, 9 Vt. 136; s. c., 31 Am. Dec. 612; Brown v. Wright, 7 Mon. (Ky.) 396, s. c., 18 Am. Dec. 190; Curtis v. Brown, 5 Cush. (Mass.) 488; Roth v. Miller, 15 S. &. R. (Pa.) 100; Sneed v. White, 3 J. J. Marsh. (Ky.) 525; s. c. 20 Am. Dec. 175; Taylor v. Hilary, 1 C. M. & R. 741.

A surety guaranteed payment of the premiums upon a life policy, which had been assigned by the principal debtor to his creditor to secure payment of part of the debt. Subsequently, the creditor, without the knowledge of the surety, agreed with the debtor to take the security, with the liability of the debtor and surety to pay the premiums thereon, in substitution for the personal liability of the debtor, in respect of that portion of the debt, and released the debtor from personal liability in respect thereof. Held, that this arrangement discharged the surety. Lawes v. Maughan, 1 C. & E. 340 (DENMAN, J.). "Any variation in the agreement to which the surety has subscribed, which is made without the surety's knowledge and consent, and which may prejudice him, or which may amount to a substitution of a new agreement for the one to which he subscribed, will discharge the surety, upon the principle of the maxim non hæc in fœdera veni." Smith v. United States, 2 Wall. (U. S.) 219; s. c., 4 Myers' Fed. Dec., §§ 727, 728; Eneas v. Hoops, 42 N. Y. Super.

Ct. 517.

This is the statutory rule in some States, e. g., "A change of the nature or terms of a contract is called a novation; such novation without the consent

of the surety discharges him." Georgia Code, § 2153.

1. Bethune v. Dozier, 10 Ga. 235, Rowan v. Sharp's Rifle Mfg. Co., 33 Conn. 1; Atlanta Nat. Bank v. Douglass, 51 Ga. 205; s. c., 21 Am. Rep. 234; Wier Plow Co. v. Walmsley, 110 Ind. 242.

So joining a new surety is held to discharge the original one. Berryman v. Manker, 56 Iowa 150; Bank of Limestone v. Penick, 2 Mon. (Ky.) 98; s. c., 15 Am. Dec. 136; Willace v. Jewell, 21 Ohio St. 163; s. c., 8 Am. Rep. 48; Hall v. McHenry, 19 Iowa 521; Gardner v. Walsh, 2 El. & Bl. 83. But see contra, Governor υ. Lagow, 43 Ill. 134; State v. Duhn, 11 La. An. 549; Sampson v. Barnard, 98 Mass. 359; Anderson v. Bellenger, 87 Ala. 334; Hessell v. Johnson, 63 Mich. 623 (where one surety was substituted for another); cf. Rhoads v. Frederick, 8 Watts (Pa.) 448; Keith v. Goodwin, 31 Vt. 268; s. c., 73 Am. Dec. 345.

An administrator, after his bond had been approved by the court, struck out the name of one surety and had another person sign in his place. It was held that both these persons were liable on the bond. Harrison v. Turberville, 2 Humph. (Tenn.) 242.

2. Warren v. Fant, 79 Ky. 1; Bailey v. Boyd, 75 Ind. 125; cf. St. Albans Bank v. Dillon, 30 Vt. 122; Joslyn v. Eastman, 46 Vt. 258; Leeds v. Dunn, 10 N. Y. 371; Succession of Daigle, 15 La. An. 594; Toomer v. Dickerson, 37 Ga. 428; Darwin v. Rippy, 63 N. Car. 318.

3. Many cases have arisen respecting promissory notes. It has been held

(1) Altering the rate of interest dis charges the surety. Harsh v. Klepper, 28 Ohio St. 200.

(2) Or inserting an agreement to pay interest. Jones v. Bangs, 40 Ohio St. 139; s. c., 48 Am. Rep. 664 ("with ten per cent. interest from date"), Kountz v. Hart, 17 Ind. 329; Hart v. Clouser, 30 Ind. 210; Glover v. Robbins, 49 Ala. 219; s. c., 20 Am. Rep. 272; Locknane v. Emmerson, II Bush (Ky.) 69.

(3) So altering the time when interest is payable. Dewey v. Reed, 40 Barb. (N. Y.) 16; Marsh v. Griffin, 42 Iowa 403, Neff v. Horner, 63 Pa. St. 327; s. c., 3 Am. Rep. 555; cf. Boalt v. Brown, 13 Ohio St. 364; Fulmer v. Seitz, 68 Pa. St. 237; s. c., 8 Am. Rep. 172.

But the surety is not discharged where the principal made a separate written agreement to pay a different rate of interest, but the note itself was not changed. Huff v. Cole, 45 Ind. 300; cf. Selser v. Brock, 3 Ohio St. 302.

(4) Altering the date of the note. Britton v. Dierker, 46 Mo. 591; Bank of Commonwealth v. McChord, 4 Dana (Ky.) 91; s. c., 29 Am. Dec. 398. As that changes the time from which the statute of limitations begins to run. Miller v. Gilleland, 19 Pa. St. 119.

(5) The time of payment. Stayner v. Joice, 82 Ind. 35 (one day to one year).

(6) Or the place of payment. Pahlman v. Taylor, 75 Ill. 629 (adding the words "payable at 53 Lake St.").

(7) Or the amount of the note. Batchelder v. White, So Va. 103 (from $1,000 to $1,500).

(8) Or the name of the payee. Robinson v. Berryman, 22 Mo. App. 509. (9) Or changed the form of money in which the note is to be paid. Bogarth . Breedlove, 39 Tex. 561; Hanson v. Crawley, 41 Ga. 303.

(10) Making a non-negotiable note negotiable. Haines v. Dennett, 11 N.

H. 1So.

Where, however, a surety signs a note in blank, he cannot complain of the way in which it is filled up. Simpson v. Bovard, 74 Pa. St. 351; Agawam Bank v. Sears, 4 Gray (Mass.) 95; Patton. Shanklin, 14 B. Mon. (Ky.) 15; Johns v. Harrison, 20 Ind. 317; Emmons で。 Meeker, 55 Ind. 321; Waldron v. Young, 9 Heisk. (Tenn.) 777.

Ratification.-The surety may ratify the alteration, and in such case he continues bound. Pelton v. Prescott, 13 Iowa 567; Knoehel v. Kircher, 33 Ill. 308. He may be held to have ratified by his acquiescence. Jackson v. Johnson, 67 Ga. 167.

After a note that had been altered matured, the holder brought suit at the instance of the surety, who gave bonds

to dissolve an attachment. The words added to the note were then erased at his request. It was held that the surety had ratified the alteration and could not take advantage of it. Gardiner v. Harback, 21 Ill. 129.

It is always competent to show that the alteration was made with the consent of the surety. Brand v. Johnrowe, 60 Mich. 210; Fowler v. Brooks, 13 N. H. 240.

But if at the time the surety does such acts as would amount to a ratification of the alteration, he does not know that it has been made, he will not be presumed to have ratified it. Benedict v. Miner, 58 Ill. 19; Fowler v. Brooks, 13 N. H. 240; Merrimac Co. Bank v. Brown, 12 N. H. 320.

Where a surety signed a note in pencil, promising to "ink it over" afterwards, and the note was altered, without his knowledge before he "inked it," it was held that he was discharged. Boalt v. Brown, 13 Ohio St. 364.

Surrender.-Where a note is taken and the old one is surrendered, the surety on it is discharged. Rhodes v. Hart, 51 Ga. 320.

But not where the new note is a forgery and purports to bear the name of the surety. Kincard v. Yates, 63 Mo. 45.

Lease. Where by agreement a new tenant is substituted for the one in possession, the transaction amounts to a surrender of his lease by the latter and his surety is discharged. Koenig v. Miller Bros. Brewing Co., 38 Mo. App.

182.

A surety on a lease is not discharged by an agreement to which he was not a party by which the rent is reduced. Preston v. Huntington, 67 Mich. 139. And this is so even where the rent is reduced by a parol agreement. White v. Walker, 31 Ill. 422. But not where the parol agreement has not been executed. Chapman v. McGrew, 20 Ill. 101.

1. Bonds.-Martin 7. Thomas, 24 How. (U. S.) 315; Smith v. United States, 2 Wall. (U. S.) 219; United States v. O'Neill, 19 Fed. Kep. 567; Walla Walla Co. v. Ping, 1 Wash. 339; State v. McGonigle, 101 Mo. 353; cf. Hill v. Calvert, 1 Rich. Eq. (S. Car.) 56.

So where the penalty is doubled. People v. Kneeland, 31 Cal. 288. Or re

duced. People v. Brown, 2 Doug. (Mich.) 9; Mitchell v. Burton, 2 Head (Tenn.) 613.

Where a surety is bound by one bond for the performance by the principal of two distinct things, and the contract is varied as to one of the things to be performed, the surety is discharged as to such matter but not as to that in regard to which the contract has been changed. Harrison v. Seymour, L. R., 1 C. P. 518; Skillett v. Fletcher, L. R., 1 C. P. 217; s. c., L. R., 2 C. P. 469.

Where the bond is left blank as to the amount, it cannot be filled up without his consent. Rhea v. Gibson, 10 Gratt. (Va.) 215; People v. Organ, 27 Ill. 27; s. c., 79 Am. Dec. 391.

Except where it is understood that the principal is to fill the blank. Wright v. Harris, 31 Iowa 272.

But the rights of the surety are not affected by filling in his name in a blank left for that purpose. Smith v. Crooker, 5 Mass. 538; State v. Pepper, 31 Ind. 76.

Official Bonds.-"Officers are often required by statutes to give new bonds, and whether such bonds are supplemental, cumulative, and additional, or substitutes for the old bonds, is often a question of absorbing interest to the parties concerned in both. Of course, the question depends chiefly on the language of the statute itself. If it says that the new bond shall be given instead of the old, it is a substitute for the old bond and not a supplement to it; and in such case, and whenever by fair construction the meaning of the statute appears to be to furnish a substitute for the old bond, the sureties on the old are not bound after the new bond has been duly executed." Murfree on Official Bonds, § 221, citing United States v. Wardwell, 5 Mason (U.S.) 82.

And if the statute requires a new bond to be given on or before a certain date, the sureties on the old bond remain liable until the new bond is duly executed. United States v. Nicholl, 12 Wheat. (U. S.) 505; United States v. Van Zandt, 11 Wheat. (U. S.) 184; United States v. Kirkpatrick, 9 Wheat. (U. S.) 720.

Any material alteration in the bond

increasing in any way the liability of the surety or diminishing his remedies, discharges him. Smith v. United States, 2 Wall. (U. S.) 219; Crawford v. Dexter, 5 Sawy. (U. S.) 201.

The alteration of the duties of a public officer by the legislature will not discharge the sureties so long as his duties remain appropriate to the office. People v. Vilas, 36 N. Y. 459; s. c., 93 Ám. Dec. 520; vide Miller v. Stewart, 9 Wheat. (U. S.) 680; United States v. Hillegas, 3 Wash. (U. S.) 70; Postmaster General v. Reeder, 4 Wash. (U. S.) 678.

Authorities Consulted in the Preparation of This Article.-There is no adequate treatise on the subject of novations, and materials of this article have been drawn from a number of text books, but largely from the digests. Parsons on Contracts, 7th ed.; Chitty on Contracts, 11th Am. ed.; Wald's Pollock on Contracts; Wharton on Contracts.

Payment-Randolph on Commercial Paper; Daniel on Negotiable Instruments; Benjamin on Sales, 4th Am. ed. (also Bennett's Notes). PartnershipLindley on Partnership, 2nd Am. ed. Insurance Crawley Life Insurance; Bliss on Life Insurance. Statute of Frauds-Reed on the Statute of Frauds. Certified Checks-Morse on Banking, 2nd ed. Contracts for the benefit of third persons-Jones on Chattel Mortgages, 3rd ed.; Jones on Mortgages, 4th ed.; Wood Landlord and Tenant, 2nd ed.; Am. Law Reg. for 1884. p. 1. Suretyship - Brandt on Suretyship; DeColyar on Suretyship; Murfree on Official Bonds.

1. Pike v. Kennedy, 15 Oreg. 420.

In a description of the obligee in a bond, as now residing in Jersey City, the word now seemed to have been used as explanatory of the temporary nature of his residence. Varick v. Črane, 4 N. J. Eq. 131.

"Now or Heretofore Appurtenant."For construction of words "now or heretofore appurtenant,” in a particular conveyance, see Roe v. Siddons, 60 L. T., N. S. 345.

"Now are," in a tenant's agreement "to leave the premises in the same state and condition as they now are," may properly be taken as referring to the

1. "Now and in Future."-Where a warehouse was held at a certain rent, "now and in future," this was held to amount to a tenancy from year to year. Weller v. Stone, 54 L. J. R., Ch. 497.

"Now Exempted by Law."-In the N. Y. Laws of 1887, ch. 713, the words "now exempted by law" do not apply to a foreign corporation, except from taxation by the laws of the jurisdiction of its origin. Catlin v. Domestic etc. Soc., 113 N. Y. 625.

"Now in Force."-An Indiana statute provides that "all laws upon the subject of embezzlement, now in force, are hereby repealed: Provided, that all prosecutions now pending under the law as it now is, and all offences already committed, may be prosecuted under the law now in force." Held, that the words "now in force" must be taken to have the same meaning in the proviso as in the repealing clause, and, therefore, to refer to the old law, that is, the law which the statute repealed. State v. Smith, 72 Ind. 350.

"Now Last Past.”—In a deed, a day "now last past" means, last preceding the day of the delivery, not of the date. Steele v. Mart, 4 B. & C. 272.

"Now Possessed or Entitled."-An assignment of all household goods and other estate and effects of or to which the assignor is "now possessed or entitled," or "belonging or due" to him, will not pass a contingent interest under a will. Pope v. Whitcombe, 3 Russ. 124; Re Wright, 15 Bea. 367.

"Now Standing."-"A mortgage of crops 'now standing and growing' in a field was held not to include grain which had at the time been cut." Jones on Chat. Mort., § 62, citing Lord v. Sutherlin, 2 Mon. 440.

"As Now Laid Out."-The grant of a way "as now laid out" precludes the grantor from maintaining any gates or other obstructions on the way which were not upon it at the time of the grant. Welch v. Wilcox, 101 Mass. 162; s. c., 100 Am. Dec. 113.

In a Charter-Party.-"Now in the port of A," these words in a charter party import a warrantee. Behn v. Burness, 3 B. & S. 751. So do the words "Now on passage. Gorrisen v. Perrin, 2 C. B., N. S. 681.

In a Statute.-Now in statutes refers

to the time when the act takes effect. Clark v. Lord, 20 Kan. 390, 396. See also Savings Bank v. New London, 20 Conn. 115.

In a Will. "Where a testator speaks of an actually existing state of things, his language should be construed as referring to the date of the will, as 'the house where I now reside,' the estate whereof 'I am now seized.' A gift to descendants 'now living' excludes those born after the will. When 'now' is used incorrectly in connection with the word 'heir,' the latter word is made to surrender its strict meaning, and the term is applied to the heir apparent at the date of the will. But the word 'now' is never construed so as to produce intestacy." Beach on Wills 156, and cases there cited.

"Family Now at Home."-Where a testator provided that a farm should be let to a good tenant, the rent to be used for the maintenance of the "family now at home," it was held that a daughter was entitled to share in the rents who, though residing on the farm at the time of making the will and testator's death,. afterwards moved away permanently; and that the words designatio personarum. Dawson v. Fraser, 18 Ont. 496.

The word "now" in a devise of "the property I now reside upon" was not allowed to control the other parts of the will, and was held not sufficient to oust the statute by virtue of which the will is to speak from the death. Hatton v. Bertram, 7 Can. L. T. (Occ. N.) 199.

"I Now Possess."-"Admit that in reference to the real estate devised the word 'now,' as between those having equal claims on the testator's bounty, might as well be construed to refer to the time of his death as to the date of his will, it would be otherwise as between the heir and one claiming under a devise to a party who did not take by purchase, and who could not have taken by inheritance. In every such case the word 'now' should be construed to refer to the state of things existing at the date of the will." Quinn v. Hardenbrook, 54 N. Y. 83.

In a Will. "The word 'now,' 'any property I now possess,' would pass all the property possessed by the testator at the time of his death." Per KAY, J., Re Portal to Lamb, 53 L. J., Ch. 1163-reversed without affecting this proposition,