Page:Federal Reporter, 1st Series, Volume 10.djvu/668

 656 FEDBBAL BEPORTEB. �TJntil after the sale, therefore, there is never a moment when the surety has any power to do anythiiig for his own protection, either by payment, subrogation, or suit against his principal. His risk, therefore, necessariiy continues up to that time. It is the sale wbich first puis a period to his risk ; until then his hands are tied, and he oan take no steps against his principal for his indemnity. �In this point of view, therefore, the provision for the sale in the statute of 1861 becomes of vital importance to the surety, siuce it is that which determines the duration of his risk, and when it may be terminated. The surety is entitled to the benefit of the provision for the sale in terminating his risk, because it is a part of the same stat- ute which enters by necessary implication into his contract, so as to eut ofi or suspend his ordinary right to end his liability by payment and subrogation immediately on the lapse of three years ; and if the statute forms a part of the bond for this purpose, then it must also form a part of it for the purpose of fixing tho time when this suspen- sion of his ordinary rights shall cease. The same statutory provis- ion cannot be both in the contract and out of it at the same time. The provision for the "sale" is an inseparable part of the provision for the abandonment of the goods to the government ; and if the surety's ordinary rights to terminais his risk by payment and subrogation are eut off by the latter, he must be entitled to whatever protection, in limiting the duration of his risk, the clause providing for a sale may afford him ; and this provision enures to his benefit as a part of the implied terms of the bond. The provision for a sale in this statute is, therefore, as much "an obligation owing direetly to the surety" as the provision for an abandonment of the goods to the government is an enactment operating direetly to defeat his ordinary rights. The postponement of the sale was, therefore, a violation of a duty owed to the surety under this bond, and involved a prolongation of his risk beyond the period contemplated by law and by the implied terms of his contract, upon the observance of which he had a legal right to rely. �Any different construction seems to me to be unreasonable, and to place sureties in a most anomalous position. Warehouse bonds with such sureties are now required by law (section 29G4) to the amount of nearly $100,000,000 annually at this port alone. While requir- ing sureties to this vast extent, it seems scarcely reasonable to hold that the law was intended to eut off their ordinary right of self-pro- tection through payment and subrogation at the end of three years, without any provision as a substitute unon which the sureties might ��� �