This case does not-appear to be free from serious doubts. My prudent course will be to deny the non-suit, and allow a verdict to be taken subject to the opinion of the court, with leave to enter a verdict for defendants.(1)
Verdict for plaintiffs accordingly.
In January term, 1838, this case was argued before the whole court, the defendant’s counsel relying on the cases they cited at the trial, and the plaintiffs relying on the cases cited by them, and particularly on the case from Peters. At the argument, Oakley, J., asked why there had not been a demurrer interposed to the breaches deemed too broad for the recital, to which Lord, for defendant, replied that this could not be done, as some of the breaches were good in point of law. Sed Vide, 1 Chitty on Plead. 643.
In February term, 1836, the court decided for the defendants, and the verdict was entered accordingly on the grounds contended for by their counsel.
In Hunntington v. Haven, (5 Johns. C. C. 27,) Chancellor Kent states, with accuracy, the rule of law in relation to the effect of a recital in an ordinary deed inter ponies, upon the granting part, which will be found to differ entirely from the rule as applied to surety oUigatioiis. The recital in the first class of cases, (deeds inter partes,) as a general rule, cannot be permitted to control the operation of the deed; this is a well settled rule of construction. There never was a case (he says) in which a recital controlled the plain words of the granting part of a deed. He confirms his view of the subject, by a reference to the opinion of Lord, C. J. Holt, in Bath v. Montgern, (3 Ch. Cas. 101,) who there says, “that the reciting part of a deed is not at all a necessary part, either in law or equity; that it hath no effect or operation when it comes to limit, then the deed is to have its effect, according to what limitations are therein set forth: and the Lord Keeper affirmed what Lord Holt said, observing that the recital, in a deed, is not made the measure of the limitation in it.” Vide etiam, Dixon on Title Deeds, 619.
In all such deeds the words of the grantor are taken most strongly against himself: hence the rule, above asserted, necessarily follows.
The case is otherwise with the obligation of a surety. The second class of cases referred to the contract of the surety, being strictissimi juris, the words are never pressed beyond their plain import, and the judges are astute in seizing upon every favorable rule of interpretation for his protection. Hence the recital in such contracts, undertaking to express *305the precise intent of the parties, controls the condition or obligation which follows, and does not allow it any operation more extensive than the recital which is its key. The office of the recital in. such cases, therefore, is of controlling import: the condition indeed is deemed “a technical version of the recital, and framed with a view to future operation." Hence, in surety obligations, it seems well settled that the recital restrains the condition. Hurleston on Bonds, 33; Corp. of London Ass., &c. v. Bold, 6 Ad. & Ellis U. S. 614; Bartmaker v. Webb, 6 Iredell, 57.