Académique Documents
Professionnel Documents
Culture Documents
KF 1045.S79 1922
The law of suretyship, covering personal
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tine
original of
tiiis
book
is in
restrictions in
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The
Law of Suretyship
COVERING
Secure
Private
Official
Obligations,
and Judicial Bonds,
Surety Companies
By
LL. D.
Third Edition by
WELLS M. COOK
OF THE CHICAGO BAR
Law
Professor of the
of Suretyship
of
Law
CINCINNATI
THE W.
H.
ANDERSON COMPANY
PUBLISHERS
1922
6/^^;LAf-^,
1922
OOPTBIGHT
THE W.
H.
ANDBEISON CO.
Cincinnati, Ohio.
in
its
pages.
Professor Stearns'
analysis
and statement.
The
fundamental
tjig
The revision
shows that although the law of suretyship is not a closed subject,
the rules applicable to corporate or compensated suretyship are
essentially the same as those applicable to the law of insurance.
The arrangement of the subject-matter in this edition follows the
same order as the former editions, with the same classified
numbering.
The chapter in the first edition on "Suretyship as Related to
'
Act or Code
'
itself.
Wells M. Cook.
Chicago, July 31, 1922.
CONTENTS
CHAPTER
THE
I.
CWlSniRACT.
SECTIOK.
p^OE.
4.
Suretyship defined
The nature of the contract
Personal suretyship
Real suretyship
5.
6.
7.
Indorser
8.
9.
10.
11.
Who may
1.
2.
3.
2
3
3
become promisors
10
in suretyship
12
12c
12.
Disability by statute
12c
13.
12d
14.
Surety companies
Duress
15.
Fraud
16.
Consideration
Suretyship contract must be express
Ambiguous words. How interpreted
Estoppel of promisor to deny recitals in the contract
Incompleted contracts of suretyship
17.
18.
19.
20.
in the
12d
making
of the contract
23.
23a.
The execution
22.
15
17
Statutory requirements
Contracts in suretyship executed by agents.
Suretyship by operation of law
21.
13
24
25
of the contract
CHAPTER
THE STATUTE
18
20
21
22
33
OfF
II.
FRAUDS.
26
29
28.
29.
Same
34
30.
24.
25.
26.
27.
subject continued
27
30
33
3
PAGE.
SECTION.
whom
31.
"Special Promise"
32.
Same.
33.
34.
Same
Same
35.
Applied
subject
to
'to
maxie
.'
contracts of indemnity
continued
subject continued.
American
decisions
37
37
38
40
'.
36.
42
37.
43
3'8.
39.
^Co-existing
44
liability
of
41.
42.
promise
Promise to pay pre-existing
40.
43.
44.
45.
46.
47.
48
liability of
statute
49
Assumiption of vendor's debt as part of purchase price not within
the statute
51
Contract of Del Credere agent not within the statute
51
CHAPTER
III.
COMMERCIAL GUARANTIES.
51.
52.
Special guaranty
53.
54.
55.
Retrospective guaranties
56.
57.
Consideration
qj
58.
Form
of guaranty
gg
59.
Continuing guaranties
Same subject continued
Absolute guaranties
70
Guaranty of collectibility
Test of due diligence
74
48.
46.
50.
60.
61.
62.
63.
64.
of principal debtor
55
56
59
63
64
65
65
66
67
72
73
75
Notice to guarantor of acceptance of the guaranty and advancements thereon
77
CONTENTS.
VU
SECTION.
65.
66.
67.
68.
69.
70.
71.
p^Qj,
is
80
83
85
neceessary
89
92
gg
94
CHAPTER
IV.
SXJRETYSHIP DEFENSES.
72.
73.
74.
75.
76.
76a. Building
77.
106
contracts
107a
78.
Change
79.
80.
81.
82.
83.
84.
815.
86.
87.
88.
89.
90.
of
parties
109
110
113
tion of a surety
124
Extension by appeal or continuance in judicial proceedings
127
91a. Extension of time a defense under negotiable instrument Codes.. 128
Extension of time with reservation of rights against the surety. 128h
92.
Agreement not to sue as distinguished from agreements to
93.
91.
extend.
94.
Waiver
95.
Delay
96.
Eflfect
upon surety
129
130
guarantor
....13o
CONTENTS.
Viii
PAGE.
SEX3TI0N.
97.
against
Liability
surety
substituted security
98.
99.
100.
101.
102.
103.
104.
106.
100.
guarantor revived
or
is
if
payment or
135
void
152
creditor
107.
108.
109.
110.
111.
112.
Same
11'3.
156
tract
of the
principal
158
itor
tent to
114.
Parol
162
evidence not compe-
show conditions
subject.
Parol
165
166
168
115.
170
Defense of the promisor based upon the failure of the creditor
to sue the principal when requested
173
The
116.
Same
117.
The
118.
119.
application of collateral
Revocation. Death of the promisor
subject.
Packard
176
principal's right of set-off or counterclaim against the creditor as a defense to the promisor
178
CHAPTER
184
V.
Private
obligations
distinguished
from
oflSeial
duty in public
office
122.
123.
124.
bond
is
a specialty.
Igg
Form
121.
of
and execution
a bond
190
191
.
194
195
CONTENTS.
IX
PAGK.
SECTION.
125.
The incorporation
126.
Consideration
127.
of otiher
ence
198
200
or misrepresentation
128.
129.
130.
131.
of liability
202
204
upon a bond
206
for the pay-
132.
133.
the
134.
135.
136.
137.
138.
139.
bond
211
214
Surety upon bond estopped from^ denying the recitals of the bond. 21.5
217
Measure of damages upon breach of the conditions uf a bond
Same subject. Where the penalty or forfeiture is imposed by
220
statute
222
Interest as an element in the measure of damages
222
Bonds to induce violation of law are void
Bonds to* prevent performance of public duty or to induce acts in
225
violation of public duty are void
140.
141.
to payment
Statutes of limitations as a defense to sureties upon a bond.
As to who are proper parties in an action upon a bond
142.
143.
144.
207
226
.
.287
231
233
CHAPTER
234
VI.
OFFICIAL BONDS.
Who
148.
145.
146.
147.
The duty
237
.
.241
149.
The signing
150.
151.
Sureties upon
152.
153.
154.
155.
156.
of the
244
246
248
.249
the bond within the time required by law
official 'bonds discharged by alterations to which
252
amendment
to the
253
law
256
,
Extension of tenure of office by legislative act
Special bonds given by officers wljo have also given general bonds. 257
258
Concealment of matters material to the risk
Bonds of public officers not retroactive and cover only the period
259
named in the bond
CONTENTS.
PAGE.
SECTION.
Where
was partly
157.
Same
158.
159.
subject.
in one
and
263
263
judgment of
a,
26^
public oflBcer
160.
161.
265
the use of public funds
Sureties not liable for defaults of principal in not performing his
contracts with persons dealing with him in his official ca-
16.
Sureties upon
163.
164.
Liability
269
pacity
official
misconduct of other
270
officials
money
received by
271
166.
167.
168.
169.
291
170.
293
171.
Liability on
172.
Defenses in
173.
174.
175.
Same
165.
280
as public depository
Same
Same
284
287
294
294
officers
297
298
subject.
is
facie
subject.
is
surety
prima
177.
theft or robbery
subject.
the
176.
money by
303
CHAPTEK
official
bonds
305
VII.
JUDICIAL BONDS.
179.
180.
181.
182.
183.
184.
18 J.
308
312
317
314
319
Failure to perfect the appeal
320
Conditions upon which appeal or stay bonds become payable .... 322
CONTENTS.
XI
SECTION.
PAGE.
187.
186.
damages
188.
Measure
189.
Successive
1'90.
191.
196.
197.
Same
192.
193.
194.
19io.
of
appeal bonds
subject.
of
in
S24
327
Defendant's
Estoppel
334
335
336
337
339
343
344
346
injunction
213.
350
Attachment bonds
Attachment bonds not forfeited for irregularities of execution or
352
defects in form
Whether damages for malicious prosecution are recoverable upon
bond to procure attachment
353
3515
Forthcoming or redelivery bonds
356
Bonds to discharge attachment
358
When action accrues upon bonds in attachment
Good faith of the plaintiff, or probable cause for attachment not
361
a defense in actions upon bonds
Sureties estopped from questioning the regularity of the proceed362
ings out of which their liability arises
363
Exoneration of sureties in attachment proceedings
Attachment bonds are available in any court to which the case
364
is taken on appeal
365
Measure of damages in actions upon attachment bonds
367
Replevin bonds
368
Conditions of bonds in replevin
366
Bonds in replevin which are void
369
What constitutes a breach of a replevin bond
Sureties upon replevin bonds are concluded by the final order in
214.
Measure
198.
190.
200.
201.
202.
203.
204.
205.
206.
aOT.
208.
209.
210.
211.
212.
the
215.
217.
218.
219.
221.
action
370
371
damages in action upon replevin bond
373
Defenses in action on replevin bonds
Bonds given in the course of the administration of estates of
216.
220.
replevin
'
of
375
deceased persons
Duties for w'hich executors and administrators are chargeable
375
on their bonds
The scope of the administration bond covers all assets and equi378
ties of the estate
380
Successive administration bonds are cumulative
As to whether judgment or order of court against the principal is
The
sureties
CONTENTS.
X'U
PAG.
StXJTIO.V.
231.
384
385
386
Settlement of guardians' accounts. ^Release of sureties on the
388
bond
An adjudication against the guardian is conclusive against the
389
sureties
390
Bonds given in the course of insolvency proceedings
391
Bail bonds
392
Conditions in bail bonds. Time of appearance
394
Same subject. Place of appearance
396
Defenses against bail bonds
232.
222.
223.
224.
225.
226.
227.
228.
229.
230.
bonds
Who may maintain action on administration bonds
Bonds of guardians Scope of liability
Defenses
upon
action
to
administration
CHAPTER
397
VIII.
COBPOiRATE SURETYSHIP.
Compensated' suretyship
233.
Surety companies.
234.
235.
236.
237.
238.
239.
401
408
409
frauds
Construction of corporate suretyship contracts
Surety company bonds as affected by the sjipcial stipulations
412
413
in-
Same
subject.
of
an act
of the
principal that
"may"
the bond
417
241.
242.
designated
416
if
claim
is
not
made within
a,
time
420
.,
CHAPTER
THE RIGHTS
AiND
421
a,
collateral
422
424
IX.
244.
345.
240.
Subrogation
426
Subrogation arises only when claim is paid in full
430
Subrogation is a mere equity and will not be applied against the
legal rights of others dealing with the principal
432
CONTENTS.
xiii
SBTION.
PAGE.
247.
348.
349.
Surety paying judgment against the principal will be subrogated to the lien and other rights of the creditor under
350.
is
him
434
all
reme-
the
251.
252.
43.5
judgment
suretyship promisor
440
who pays
will be subrogated to
any mort-
257.
of the principal
450
Subrogation among co-sureties
453
Subrogation between successive sureties
434
Subrogation in favor of the creditor to securities held by the
surety
435
Same subject. The view of the English courts
463
Remedies of the surety in cases where he is deprived of subroga-
35s.
When
253.
254.
255.
256.
46.t
set-
271.
466
Subrogation not available to one who pays the debt of another as
a mere volunteer
467
Conventional subrogation
470
Waiver of subrogation
472
Contribution between co-sureties. General principles
473
Contribution between sureties bound by different instruments. .477
480
A surety for a surety not liable in contribution
Contribution as affected by special contract between sureties. .481
482
Contribution between persons in the situation of a surety
One who becomes surety at the request of a co-surety is liable in
contribution to such co-surety
483
One who aids in the commission of the default is barred from the
485
right of contribution
486
When contribution may be enforced
Equitable contribution or the right of a surety to call upon his
488
co-surety for exoneration before payment
48n
Amount recoverable in contribution
272.
273.
259.
260.
361.
262.
263.
264.
265.
266.
267.
268.
269.
370.
ties
274
275.
490
490
the death of a co-surety
Surety seeking contribution must account to his co-sureties for
491
indemnity furnished him by the principal
Surety may enforce contribution even though payment by him was
without compulsion
495
CONTENTS.
XIV
PABB
SECTION.
276.
277.
Bankruptcy
278.
280.
503
507
508
498
ties
of
a,
surety.
Effect
tion
279.
499
501
281.
Equitable exoneration
282.
283.
Amount
284.
285.
lent to
pal
286.
287r
payment
509
511
513
I.
THE CONTRACT.
See.
Suretyship Defined.
The Nature
of the Contract.
Personal Suretyship.
Real Suretyship.
Parties to the Contract.
Promisors in Suretyship.
Disability
by Statute.
Surety Companies.
Duress.
Fraud
in the
Making
of the Contract.
Consideration.
Ambiguous Words
How
Interpreted.
The Execution
il.
of the
Con
tract.
Siiretyship defined.
111.
The
318, 11 Am. Rep. 18.
desirability of defining legal terms,
by giving to them, so far as possible,
their
generally
accepted
meaning in popular discourse, will
be conceded.
however, has
acquired a general
and a special meaning. In general.
it means a security of any sort,
and,
outside
of
legal
term
stricted to
phrase,
has
As a
spe-
The person
wh*, is so
Guaranty
is
a subdivision of suretyship.
The term
describes
g2.
The nature
of the contract.
The
mere
impliby
and such a con-
cation.
tract to be binding
"
in contract,
must be entered
The
it
was usually entered into for accommodation mesrely, and without any participation in the benefits of the principal contract.
No good
kind.
reason
is
apparent
is
Involuntary
not
used at
suretyship,
all.
result-
by implication,
or
is
is
merely ex-
Sec. 23.)
many and
rejected
by many, with
sense
cited
is
being used
in
surety-
double
guaranty
::nd
the
word
shall be
THE CONTRACT.
and
courts,
In addition
promisor in a suretyship
always been
has
specially
the attention of
it,
directed
to exercise
any
The nature
fixed
is
may
peculiar
the
to
by the
not be able
control.
3.
Personal suretyship.
'property, real or
4.
Eeal suretyship.
The term
is
a legal
upon
fiction,
but a very
venimt
specific
is
a con-
classification in suretyship.
McDonald, 7 Har. & John. 160; Miller vs. Stewart, Q^Wheat. 680 Magee vs. Manhattan Life Ins. Co., 92
U. S. 98. Swayne, J.: "A surety is
'a favored debtor.' His rights are
zealously guarded both at law and
in equity. The slightest fraud on
;
ation after it
ficial
effect.
made
is
His
is
contract
it,
same
exactly
he
as
liabil-
him be
is entitled
to go acquit."
THE LAW OF SUEETYSHIP,
We
upon property,
under an obligation to a
includes other transactions than pledge and
But
person.
lien
is
5.
tyship,
who
is
make
is
(b)
the one to
whom
the debt
or obligation runs, the obligee in suretyship, called the creditor; (c) the one
who
to the
who undertakes on
his
own part
to
perform
it,
and
called the
promisor.'
The law frequently substitutes
own
its
obligations
resting
upon property,
by
tate
by statute.
elegit,"
" es-
The
created by one of
England,
By
this
a further illustration.
statute, it was provided
is
judgment
his debt he may have a writ
that after one has
titling
him
a.
for
en-
judgment
Suretyship.
Some
ti>e
Law
needless
of
confu-
essary
construction
character of
of
the
exact
some other person who ought himself to have paid it before the surety was compelled to do so." The
law, as thus stated, is not peculiar
is fully paid.
eral
sense
as
inclusive
of
other
THE CONTEACT.
6.
Surety undertakes to pay the debt of another. A Guarantor undertakes to pay if the principal debtor does not ' or
cannot.
The Guaran-
tor does not join in the contract of his principal but engages
in an independent undertaking.'"
The
liability of the
Surety
is
immediate and
direct.
He
the
however,
If,
contract of guaranty
tion of
a surety."
104 U.
S.
Davis
vs. Wells,
169.
payment
of the
prompt
on the validity
If the pay-
ment
is
on which a
anty,
made
this
See
Guaranty" is used.
Even the Supreme Court of the
tract of
been
and
THE LAW OF
6
the promise
is
SUEETTSIIIP.
pay
not immediate, and does not fix upon the promisor a liability
from the beginning, but only upon default or failure of the
In such a case
principal to do what it is agreed he shall do.
is
the promisor
is
a Guarantor.
The
and
is
is
first
more burdensome
to the
promisor
him
latter's
888.
Legal proceedings are not necessary to fix the liability of a guarantor, nor is it necessary to prove
demand upon the maker, or notice
to the guarantor of non-payment, or
to use diligence against the maker,
except where the guarantor guarantees the collection of a sum of
money, in which latter case th
guarantor is only liable in case
holder is unable to collect by legal
process.
111.
Surety vs. Munro,
289 111. 574, 124 N. E. 528.
9 A very oatehy phrase was once
written down by somebody which
was made to read: "A iSurety undertakes to pay if the debtor does
A Guarantor undertakes to
not.
pay if the debtor com not." This
phrase has rhythm and euphony and
by its literary excellence seems to
Slirety
is
not liable
if
mean the
the debtor
no condition, and
a
legal
is
expression.
meaningless as
There are no
conditions
the
principal's
contract.
The
Sometimes stated as
guaranty of payment and guaranty
overlooked.
of collectibility.
The contract of
the absolute Guarantor of paymenli
carries by necessary implication the
THE CONTRACT
7.
Indorser.
An
Indorser
is
one
who
by
special contract,
contract.
The adoption in most States of the Uniform Negotiable Instruments Act or Code has superseded the law of suretyship as
heretofore applied to negotiable instruments, and has substituted
therefor the law as declared by the Act or Code
8.
Irregtilar or
itself.
anomalous indorser.
The indorsement for accommodation, which includes all indorsements not in the chain of title, is called irregular or anomThis latter classification includes not only
alous indorsement.
those accommodation parties who, by special contract, assume
the position of an Indorser, but also those indorsements which,
either
by
liability of a
Surety or Guarantor.
i"
Bank
of
589',
and the
If,
however,
it
is
other sup-
it
of
the legisla-
and to substitute
a primary and
secondary liability does not of it-
posedly
The existence
of
a suretyship, although
create
self
it
least
the
of
has
surety
which
equities
definitely
the
acquired.
Act
and this is the view exby the courts quite genUnion Trust Co. vs. Mc-
itself,
pressed
erally.
not be reconciled.
All persons liable on a negotiable
instrument are comprehended in
Nowhere
in
tiable Instruments
sions are so
laws
'
omissus.
one
of
or
suretyship
the
other
of
two classes.
"The person
the person
who by
instrument
the
the terms of
absolutely
is
persons
are
re-
All other
'secondarily'
liable.''
15
the
430,
it
is
primary purpose of
of the
Wright
Way
vs.
509.
the
ment
al.,
50.
Courts
in
et
Act
to be charged
W.
Fullerton
13
this
of Negotiable Instruments, as
generally conceded to be the fact,
is
N.
"If
Law
it
Contra,
iSnoufifer
said:
134
170;
have
modified
the
state-
of the
THE CONTEACT.
t^e paper with some third party, such promisor will be held as
own
of the indorsement
is
fixed to be
same
as in other relations of
suretyship.
9.
An
tion
as
whereas an accommodation
consideration.^*
and such
Co., 7
lett et al., 11
lard, 17
N. H. 503.
'
6Blatchford
Mo.
&
291, 20 S.
W.
Savings Bank
111.
Nordgren, 157
Pike,
162
111.
241, 44
vs.
N. E. 441.
Brooks Wa-
45 N. E.
1094.
111.
116;
Joslyn vs.
Collinson,
26
111.
Badger
vs.
Clopton,
482;
Barnabee, 17 N. H. 120;
Exr.
Savage
vs.
vs.
Miss.
Hall,
51
First
National
Iowa 550.
10
of a Guarantor, except
when made
agreement/"
This
is
some prior
in pursuance of
a clear intent
make a guaranty.
The presumptions
faxTt
shown.
is
that the
is
ir-
presumed to be a Guarantor.^"
have signed before delivery he
In Missouri, he
is
If,
is
presumed
however, he
is
shown
to
held as Surety. ^^
to be a Surety
shown he
is
^^
but if the
held as Guar-
antor.'''
10.
The more
is
un-
is
conclusively presumed to
be a second
Indorser,''*
13
Aibell
al.,
et
0.
228;
Mass. 43;
Me. 265.
Lathrop vs.
Eohinson vs.
11
22
3'6
&71.
17 0. 36;
vs. Sinieed, 3 0. S. 418.
21
Bright
Seymour &
515:
2s
Greeniough
Carpenter, 9 O. 139;
Oo. vs. Mickey, 15 0. S.
vs.
V
]i.
392.
'
"
0- S-
3n
vs.
SchifFman, 20
Huggins,
73
Mo
Mo.
^.''n
83 JM.
Adams
vs.
App. 140.
Ewan
fieldCo.,
Schneider
;
.
parties.
THE CONTRACT.
was
Such a
made.^''
paper,
of negotiable
freely as money.
rule,
if
11
uniform, would
Any
the status
fix
circulate
to
it
more
dictions.
To permit a party
In
it
New York
he
is
presumed
to be
all confusion.^'"
if
many
In
states
the
and so
is
shifted
anomalous indorser
liable
is
the
to
is
2"'
Arkansas
25a
In
Xew
and
sort,
it is
proof the
Killian vs.
50 N. Y.
Such also appears to be the
69.
rule in Wi^n^in, Oady vs. Shepard, 12 Wis. 6319; also in Indiana,
.
-r,
Browning
vs.
et
al.
Vischer,
nT
-ii.
i
vs. Merritt et
ai.,
l^rtin,
Alabama
(Surety.)
Col. 166;
vs.
vs. Miles,
'
(Liable to the'payee
Good
Tabor
g q^i
61 Ind 425
260
California
ileges of
Colorado
Phelps
Bum-
^^'''
2"
(Surety.)
243.
'"
>
"
*'^'
^
Do'.aware
Surety.
-'^*^-
Gilpin
'^'^^
vs.
Georgia (Surety.)
Everett, 4 Ga. 200;
mons, 62 Ga.
73.
Collins
Camp
vs.
(Statutory.)
va.
Sim-
12
Who may
11.
become promisors
who has
in suretyship.
in
duress.
Tucker vs.
N. E.
Illinois (Indorser.)
Mueller,
287
122
551,
111.
847.
(Guarantor.)
Robinson
Oonger vs.
Iowa
46
Eeed,
TS.
aiS;
la.
W.
24 N.
569.
Fullerton
(Guarantor.)
Kentucky
Bryant,
vs.
Bush
tory.)
6i88.
vs.
Surety.
Leonard
vs.
Surety.
35 Md. 262;
Way
vs.
Walz
vs.
Al-
vs.
vs.
Jonesi,
19
Pick.
263;
108
Mass.
Butterworth,
Michigan
(Surety.)
Wetherwax
vs.
vs.
vs.
W.
727.
Gumz
vs.
Tjader,
vs.
Nev. 380.
^(Surety.)
Robinson, 63 N. C. IS'l.
Ohio
(Surety.) Bright
Minn. 256.
Baker
vs.
penterj
9
3
1S9;
0.
0.
S.
vs.
Oar-
Greenough
vs.
Ewan
vs.
415;
signing
be-
deemed an indorser
and entitled to demand and notice
and liable to the payee and all subsequent parties. ;See also 15 Ohio
fore delivery
Law
is
Reporter 580.
Pennsylvania 'In 1901 the legislature of, Pennsylvania provided as
follows: "When a, person not otherwise a party to an instrument,
thereon
places
his
signature
in
N.
Geigling.
Sar-
vs.
Moynahan
3
108
gent
Ives
509.
W.
56 N.
Slnead,
37
Ohaflfee
Salisbury
en
193'.
North Carolina
Surety.
Maryland
Bosley,
vs.
Ry., 64 JIo.
(Surety.)
Arnold
Bank
Memphis
Nebraska
(Statu-
Ann. 348.
Trist, 20 La.
vs.
Lawrence
vs. Oakley, 14 La. 389; Chorn vs.
Merrill, 9 La. Ann. 5381; Collins vs.
Louisiana
Maine
Schneider
(Surety.)
(Guarantor.)
vs. Hill,
(Surety.)
New Hampshire
('Statutory.
Kansas
Missouri
vs.
following rules:
ment
is
maker or drawer or
is
THE CONTEACT.
An
12a
by reason of
suretyship
power
giving to them
the
same
exist,
sta.tutes
to contract, as men.^
may
corporation
regular course of
or drawer.
itself in suretyship, if
its business,^^
3.
accommodation
liable to
bind
all
of the payee,
the payee."
Rhode Island
(Surety.) Perkins
507.
Surety. Car-
Barstow, 6 R.
South Carolina
vs.
I.
penter vs. Oaks, 10 Rich. L. 17; McCelvej' vs. Jvoble, 12 Rich. L. 167.
Tennessee
(Guarantor.)
vs. ^Vaters, 6
Lea
Harding
Overruling
32'4.
Utah
nor,
(Surety.)
McGee
Oon-
Utah, 9S.
(Surety.) Strong
Virginia (Guarantor.)
Watson
vb.
Hurt,
Orrick
Gratt. 633;
vs.
Burton
West Virginia
ford, 10
W. Va.
vs.
Hans-
470.
The presumption of
the payee
ma* be
liable
from statute.
=8
v.
Beals
72-;
Williams
Owen
Fetrow
vs.
Contra
vs.
C.
&
O. S. 325.
30 Low Bros.
41 Iowa 476;
57 Me. 546.
Gosman
87.
vs.
Vermont
vs.
is
31
Tex. 23.
done in the
liability
to
rebutted in all
126
but an
officer of
its
firm naine/' but one partner cannot so bind such firm without
express authority,
is
\pithin
the
by
name
upon
acting
to such contract
will
of the firm
affixes
it.''
such
signature.*'
Co. vs. Flannery et al., 137 111. 309;
27 N. E. 286; Pollitz vs. Pub. Util.
Comm., 96 0. S. 49; 117 N. E. 149,
L. R. A. 1918D, 166; Depot Realty
iSyndicate Co. v. Enterprise Brewing Co., 87 Or. 560; 170 Pac. 294;
L. R. A. 1918C, 1001; Broadway
National Bank vs. Baker, 176 Mass.
294; 57 N. E. 603; Timm vs. Grand
Rapids Brewing Co., 160 Mich. 371;
125 N. W. 357. It is held in Western Maryland Railroad Co. vs. Blue
Ridge Hotel Co., 102 Md. 307; 62
Atl. 351, that a railroad company
has no implied power to guarantee
interest and dividends upon bonds
and stocks of a hotel company, although the latter is operated beneficially to the railroad by increasing
its regular income from transportation.
See also J. P. Morgan & Co.
vs. Hall & Lyon, 34 R. I. 273; 83
A. 113; Re Romadka Bros Co., 216
Fed. 113; Winterfield vs. Cream
City Brewing Co., 96 Wis. 239; 71
N. W. 101. A lumber company may
become surety on the bonds of a
building contractor to induce him
to purchase of the lumber company
the lumber used In such building.
Central L. Co. vs. Kelter, 201 111.
503; 66 N. E. 543.
But see Best Brewing Co. vs.
Klassen, 185 111. 37; 57 N. E. 20.
The Brewing Co. executed a bond in
appeal
for
one of
its
customers.
in furtherance of
its own business interests.
Held to
be Ultra Vires, and that the surety
was
not estopped
such defense.
from
asserting
vs.
N. Y. 315.
-But see Davis vs. Old Colony R.
R?,- 131 Mass. 258.
34 Culver vs. Reno Real Estate
Co., 91 Pa. St. 367.
But if the corporation has the power to engage in
an undertaking of guaranty, the
power of the executive oflScer to execute the contract will be presumed.
Lloyd & Co. vs. Mathews, 223 111.
477; 79 N. E. 172.
Co., 67
35 Allen vs.
(Tenn.) 624.
Morgan, 5 Humph,
36
THE CONTRACT.
12o
except that
siiip,""
course of
its
may
paper.
cial
it
to
every bank
power
to
'
*"
'
exchange and
be-
it
lla.
principal,
competency,
is
not bound.
and
is
valid,
and
Disability
12.
its
by
statute.
sor will be
utes furnish
accept such
justification
to
prohibited persons
prohibition.
public officers
as
Sureties
in
These
stat-
refusing to
and Guarantors,
W.
123.
U.
beyond
is
its
powers
and
void.
App.
66.
Peoples
Bank
vs.
Nat.
Bank,
160;
198;
302;
Weare
Mo.
Sawyer, 44 N. H.
Winn
Sanford, 145 Mass.
14 N. E. 119; Gates vs. Tebvs.
vs.
W. 1120;
89 Va. 507; 16 S.
E. 627; Adler vs. iState, 35 Ark.
517; Lee vs. Yandell, 69 Tex. 34;
6 19. W. 665 Mitchell vs. Hydraulic
Stone Co., Tex. Civ. App.; 129 S.
W. 148 Holm vs. Jamieson, 173
HI. 295; 50 N. E. 702.
See post.
betts, 83 Neb. 573; 119 N.
Kyger
vs. Sipe,
LStection
104.
I2d
and rules
of statutes
fiance
will
estoppel
of
de-
court,
of the prohibition.*^
Surety companies.
13.
The organization of corporations for the purpose of becoming Sureties and Guarantors upon bonds is sanctioned by the
courts in all the states,*' and statutes regulating their acceptThe
ance as sole Surety have been enacted in many states.
courts take Judicial notice of the Statutes authorizing Surety
is
in every sense
a private business.**"
Duress.
14.
Surety or Guarantor
duress
not bound by
is
who
under
it,
contracts in
Whether or
upon
The arguthe principal alone has not been uniformly settled.
ment is advanced that Suretyship depends at all times upon
suretyship follow the rule of other contracts.*"
is
bound
the
Holandsworth
vs.
CommonBush (Ky.) 617; State
Findley, 101 Mo. 368;
S. W.
ri
,11
Cook vs. r>
Caraway, nn
Kan. 41
29 tr
*2
wealth, 11
vs.
11 1
Tessier vs.
W.
22 X.
Crowley,
17 Neb. 207;
'
J.
660-
43Ctamer
,
12
T>
lac.
vs.
n,.r.
869;
Tittle, 72
n,
Cans
vs.
Cal.
12;
^
Garter &
o
3o-,
m
of
Miller
^g^
VIII.
44a
38
iS.
Matthews,
V8.
^^ ^^j_ ^.^
'
g^^
E. 908.
87 Md.
Chapter
vs.
Shal-
lenberger,
/o
Ii'
Barb. 346.
vs. Hood, 60, Mo.
''^-
f
{?-?,l''^"
46\\ilkenson
^?" If'
Mynatt,
Walton
vs.
':
^-
Heisk.
f'
^^f"^^,^/(Tenn.)
675;
American Surety Co
THE CONTRACT.
13
Furthermore,
if
The weight
duress
the
of
when he
discharge
will
in the
making
is
that
promisor except
the
of the contract.
Fraud practiced by
(1)
of the authority
Fraud
|15.
principal
the creditor
in
the making of the main contract stands upon the same reason^
If the principal
could
right.**
" Hazard
Rep.
178;
vs.
Griswold,
Peacock
vs.
As
vs.
21
Fed.
vs.
The
vs.
Peo-
25
vs.
Arena, 84 A.
111.
Putnam
48
vs.
2315
Pa.
3'5;
Hun
Bennett
3615;
Bank
Contra
Robbins,
Jordan,
vs.
W.
Carey,
vs.
Iowa 476; 34 X. W.
499; 117 N.
Schuyler,
Oslborn vs.
166;
36 N. Y.
Natl.
Bigham,
vs.
(N. Y.)
vs.
judgment
84 Atl. 131.
72
Oak
29il;
City
130'
Iowa
758.
Plummer
The
vs.
et al.
Ettlinger
815;
Pluggins
vs.
People,
39
People,
241;
Peacock
vs.
People,
83
Gould,
11
Atl.
111.
Fountain
83 N. J. L. 79.
see
S. E.
Sitgreaves, 90 Pa.
Schuster
161;
723;
Haney
Marks, 9 Ga. 67
931; Griffith
St.
al.
ham
et
331.
Robinson
Contra
Gush. 55.
vs.
16
111.
In Evans
it
is
vs.
358;
Keeland,
vs.
9 Ala. 42,
self
281; 34 N.
W. 575; Weed
ley, 6 Hill
fense.
practiced
49
Evans
Waterbury
vs.
vs.
vs.
518;
Ham
vs.
vs.
6,
Bent91
Greve, 34 Ind.
111.
18;
14
is
if
known
to
required not
deceit,
but a
the promisor
would
agent
duties of his
employ embezzled
his
Surety,
property.
although not
in his
this infor-
specifically
inquired
extreme in a case
to the
faulter,
who
there-
bank,
published
showed the
accordance
in
bank
assets of the
and
assets
with
the
liabilities
of
acts
of the
Congress,
Bank
vs.
vs.
25 Tex.
^Sjivaii,
Railway
Co., &5
Iowa
473;
Mathws,
8192';
lin
Bank
Dougherty
more
92 Ky. eSQ; 18
vs. Schmidt, 116
W.
940; Putney
M. 400 (120 P.
S.
720)
438
&
Pidcoek
Or.
60i5;
Bishop,
vs.
Owen
Barn.
Homan,
vs.
14'9
Iowa 387;
N.
128
W.
541;
Owen
vs.
vs.
15
W. Va.
State, 30 N. J.
et al., vs.
21
Branch
Railton
vs.
&
316
Me. 179;
Savage, 28 Conn. 146;
Screwmian's Benev. Assn. vs. Smith,
70 Tex. 168; 7 S. W. 793; Dins-
10' 01.
vs.
Cooper,
vs.
14 S. W. 632; Remington S.
vs. Kezertee, 49 Wis. 409
5
N. W. 800 W. C. & A. Eiailroad Co.
vs. Ling, 18 S. C. 116.
558;
M. Co.
15
THE CONTRACT.
Fraud practiced by
(3)
cashier.''^
the principal
out the knowledge of the creditor will not avoid the contract."'
Consideration.
16.
tial.*
52
10
Graves
vs.
Bush (Ky.)
Contra
is
6 Atl. 746;
23.
vs.
Bank
vs.
Alljee,
Lieberman vs. Wilmington First Nat. Bank, 2 Pnnewill (Del.) 416; 45 Atl. 901. The
63 N. H. 152;
is
his, 91
356.
Neither
Savings
is
the
creditor
essen-
is
re-
& Deposit
Co.
Title Corp.,
HO
Atlantic Trust
400;
VB.
Union Trust
&
But
App. 242.
Bank
vs.
Atl. 1045
First Natl.
Bank
of
Han-
see
paper
was an application
The creditor
der the excise law.
acted upon the letter of credit and
without knowledge of the fraud or the other circumstances under which the letter
W.
a,
license un-
was obtained.
Page
130.
'
for
vs.
But
ley,
see Schuylkill
County
vs.
Cop-
5* Pfeiffer
vs.
Kingsland, 25 Mo.
Barnes
vs.
Forbes,
vs.
vs.
Sipencer
Peck, 53 Me. 284;
Handley, 5 Soott N. R. 546 Grraves
et al. vs. Tucker, 10 Smedes & M. 9
;
Johnston
VB.
66;
118 N. Y.
55 Conn. 251;
10 Atl. 569;
Briggs
13 Pac.
13i6
Mo.
16
to
to the
promisor.
'"
or the
payment
to the
money
of
It
is
not
past
transaction
must not be
ever,
or
executed consideration
The
support a suretyship.^*
sufficient to
illegal,^^
is
will
not
consideration,
nor opposed to
public
be
how-
policy.""
when
transaction
Hughes
5s
vs.
McNaught
400;
18 Me.
McOlaughry, 42
Littlefleld,
vs.
W.
25;
Bower
128 N.
W.
470.
346; 131 S.
(S. D.)
vs. Jones,
III.
liam
(Ky.) 98;
Wis. 46;
Coffin
vs.
Trustees,
92
Davies
(Q. B.)
vs.
Savings Bank
25;
Bower
vs.
Hill,
vs. Jones,
113 Mass.
128 X.
W. 470;
26 S. D. 414.
consideration.*^
Thomas
&
Cr.
partially
61
illegal.
THE CONTEACT.
Suretyship contract must be express.
17.
it
17
as
is
is
Again such
and the
accordingly so bound.
to
rise
there
who
is
will never
guage employed."^
ascertain the
meaning
17
To
as obligations in suretyship.
effect
of
The State
0.
vs.
Medary
et
al.,
965.
that
is
it
for itself;
and
shall so speak;
liability of sureties is
if
Md.
448;
83 Va. 445;
rel.
Bell
13i2
S.
have
vs. Title
according to
its
exact
Barnes, 124
111.
Weir Plow
Co.
Mich.
vs.
Si-
al.
vs.
346; 16 X. E. 2o4;
Ind. 242;
11
vs.
W.
Andes and
^ns.
Yates,
9i5
231
Walker
X\ E.
Mo.
S.
27i6';
vs.
State,
3(53;
Moore
wife,
State ex
E. 249;
S.
672;
Oo., 151
W. 477; Amer-
vs.
Pueblo Inv.
Co.,
Turner
Shines,
358;
Atl.
Burson
St. 509';
13
vs.
Ct).,
W.
Atl.
1;
Kuhl
vs.
111.
528;
83 N.
Ohambcrlain,
3'5
vs.
Md. 536;
Bogardus, 231
284;
115
60
1112;
vs.
E.
140
vs.
THE LAW OF SURETYSHIP.
18
is
"In
ties,
He
is
it
was made.
cannot be
extended by
or
construction
beyond
implication,
But
Surety.
guage
is
same rules
meaning
as in other instruments;
or mistake in
it.
' '
"'
may
When
the
of written lan-
to be ascertained in the
is
is
there is fraud,
Ambiguous words
18.
"3
interpreted.
is
it is
If the language
be ascertained,
how
77 Ind. 1.
"The contract at a surety is to be
al.,
anty
Co.,
W.
18;
Inv. Co.,
3i53;
116
Pac.
521;
Martin
vs.
106 S.
terms of their obligations." McMullen vs. United States, 167 Fed. 460;
64 Story
on Equity, iSec. 164;
Neininger vs. State, 50 0. S. 394;
34 N. E. 633; Wiser vs. Blachly, i
^f^"^- ^o'
Mystic
Wwkers
1,52 111.
S,
.^1^
^^"^
'
O^^stead
m'o"98;
vs.
01m-
^^,^M^
E. 359.
THE CONTRACT.
tract
a^ interpretation which
or nullification
feiture
will prevent,
the
of
19
instrument,
possible, a for-
if
and two
One view
hopeless discord.
is
distinct
which are in
Guaranty
and contracts of Surety are commercial instruments and generally drawn in brief language, often loose in their structure,
that
it
mouth
of the
scatter
his injury,
' '
Guarantor
to say that
in the
lie
he may, without
is
peril,
misled to
"'
most strongly against the promisor and impose upon him any
obligation consistent with the language employed, if the obligee
shall assert
Opposed
shall in
man
is
who
ambiguous phrases and strained constructions, but to reand plain declaration of the obligation he is
to
quire an explicit
about to assume.
'
*"
'
many
holdings
Gates
66
Mason
vs.
Mc'Kee, 13 N. Y. 236.
12 East.
227; Hargreave vs. Smee, 6 Bing.
244; Eindge vs. Judson, 24 N. Y.
64 City Nat'l Bank vs. Phelps, 86
Pritcliard,
vs.
N. Y. 4S4
ct
al.,
DTummond
vs.
or,,
T
vs. Scudder, 7 La.. An. 385; Lee vs.
Dick et al., 10 Peters 493; Bright
vs. MoKnight, 1 Sneed (Tenn.) 108;
Taussig et al., vs. Eeid et al., 145
48';
E. .18; Sather
III.
3.
Banking Co.
vs.
Briggs
contracts
for
an unoer-
plain
certain."
Town
of Whitestown va.
H''^'^
''^^^^'^
VS.
502; 88 N: E. 208;
state vs. Tihe Blanchard Construction Co., 91 Kan. 74; Lackland vs.
Eenshaw, 165 S. W. 314; Shreffler
'^ "^^6^2^^^'
^^^y
S'
(,^^
239
111.
6^^^^'. ^It^
67
20
liabil-
19.
he
nevertheless estopped
is
estopped from
upon
the
that
transaction
estopped from
but he
will
be
judicial bonds.''^
5 C. & P.
Ballou, 136 Mass.
Kay vs. Groves, 6 Bing. 276;
White vs. Reed, 15 Oonn. 457; AlR.
dricks vs. Higgins, 16 Serg.
212; Rirdsall vs. Heacock, 32 0. S.
177; Morgan vs. Boyer, 39 O. S.
324: Gard vs. Stevens, 12 Mich.
292; American Surety Oo. vs. Koen,
49 Tex. Civ. App. 98: 107 S. W.
9'38: Board of Education vs. Fudge,
4 Ga. App. 637; 68 S. E. 154;
Minor vs. Woodward, 179 Mo. App.
SB'S; 166 S. W. 865.
s Bruce vs. U. S., 17 How. 437
Washington Ice Co. vs. Wbster,
Cutler
vs.
&
S.
teith vs.
illegal,'^
366;
337;
will he be
was
The
State, 78 Ind. 68
White
vs.
vs.
712; Red
Donnelly,
W.
1.
Tucker
Md.
322.
71
Henry
12 S.
vs.
W.
663.
72 Daniels et al. vs. Barney, 22
Ind. 207 ; Thorne vs. Travellers Ins.
THE CONTEACT.
21
20.
When
by the omis-
or
ties,
by
failure to
fill
must
whereby
some one
ings.
make
it
speak
cases
its
to the promisor.'"
If the contract
is
is
that
may
it
be completed either by
tain
impugn
the doctrine
" There
be varied by parol.
thjat
is
kind, but its particular terms are not given on the paper but are
be ascertained by parole."
left to
"
to
by
fill
it
in that condition he
by being
filled will in
111.
41
0.
May
234;
S.
et
The
vs.
et
al.,
Massie,
327;
Marsh
son's Exr.
vs.
Staples
al.,
Horner, 63 Pa.
Griffin,
vs.
Thompson
Anderson
vs. Bellenger
&
Ralls, 87
Wegner
'">
"
no way enlarge
App. 419; 13
10 Gratt. 215
State, 28 Tex.
vs.
vs. Gib-
as,
Ante See. 8.
Barrows vs. Lane,
5 Vt. 161.
22
Also the
obligor."
was held
it
when completed
parties,
Statutory requirements.
21.
and
the*
'8
The
Potter vs
State,
Morgan
et
23 Ind.
al.,
28
111.
,,,,,
vs.
Y?"
459.
Leibshultz
Cow.
230;
Seheid
et
al.
vs.
et
-
J.
oA-i
jf
.
\Tk'
78 Austin
in.*
Gratt.
1.
^
vs. X,Richardson,
1
om
Church
vs. wi,T
Noble, oA
111. 291.
24 Til
fty.
vs.
1.
,
n T
vg. ;.
McFarlane,
9 La,
227; McCormick vs. Bay
City, 23 Mich. 457; Cawloy et al.
,'r.,
1
81 Chalaron
(Curry)
gtahl
Rawle 170;
10 Serg.
&
Ex Parte Kerwin,
vs.
Berger,
118.
and
^g
THBCOKTKACT.
23
bond by
If the
a public officer,
Nor
number of
Surety.'"
site
is
a failure to have the bond signed by the requiSureties will not be. bound, how-
Sureties.**
named
the
file
The
by
agents.
which pro-
vides that the writing whereby one is charged with the payment
authorized."
The general
he
may
own
may
own name,
by an
Neither the
56rcLey"v?"e:bles''"f3'kebt-'
in
-nr
12 ir
N. XKT
W. cAn'
840; Mears vs. Commonwealth, 8 Watts (Pa.) 223.
'
r<,
'
'
ComtroToles
222
Roberts
vs.
84 N. Y.
vs. Adee,
The
State, 34 Kan.
in whieli it was
4 S. E. 379;
Coal
Co., 195
Dugan
vs.
Ky. 821; 49
Champion
S.
'^''^P'^^^
W.
958.
'"^"'^
>
*'^y
'"
\.
^^^'
j,
*^
^""'^ "<^
*>
25a
23a.
The name
contract.
must be
memorandum
affixed to
thereof."'
Partieo signing
or co-sureties,
the
either
waived by
is
by conduct amounting
expressly or
to
estoppel."'
90
Md. 10;
16
386;
Atl.
Board
of
21
Secor,
French
Okl.
vs.
427; 114 S. W. 691; Sellers vs. Territory, 121 P. 228; 32 Okl. 147.
conditions.
Union
Pacific
Tea
87 Conn.
711.
7
Crawford
vs.
Owens, 79
S.
vs.
Boddicker,
90 N.
W.
Husak
V.
Clifford,
117
la.
79 Pac.
179
Ind.
W.
vs.
American Bonding
100 N. W. 138;
Co., 72 Neb.
100;
Baker County
Ore. 275;
Contra
named
vs.
Huntington, 47
83 Pac. 532.
Where
the
407
bond
delivered
to
the
obligee.
Empire
W. Va,
& Surety Co.
Bradford, 74 S. E. 509; 70
C,
Hunt
principal
Bank
vs.
98
Middleboro
Nat'l.
Richards, 55 Neb.
White
Bank
vs.
76 N.
W.
682;
M. Co.
187
528;
173;
S.
vs.
Saxon,
THE CONTRACT.
The condition of co-suretyship may be
256
satisfied,
although the
same
An
liability."'
to a contract
of suretyship.^""
If all persons
named
sign, it is held to
be sufficient
to
Vogelsang
vs.
Civ. App.), 80 S.
vs.
43.
W.
Taylor
(Tex.
637; Teasley
S.
E.
CHAPTER
IL
Sec. 29.
Sec. 30.
Sec. 31.
Sec. 32.
Sec. 33.
Sec. 34.
Sec. 35.
Sec. 36.
Sec. 37.
Sec. 38.
Sec. 39.
Sec. 40.
Sec.
4L
Sec. 42.
of Frauds.
5ec. 43.
Sec. 44.
Sec. 45.
Sec. 46.
Sec. 47.
Lex
The purpose
24.
The
Fori.
The purpose
of the
Statute of Frauds
36
is
doubtless
2'^
many
statutes
It is
now
are
considered useful,
fraudulent prac-
tices,
necessity
of
men
but
has established
to
writing
in
was conceived
It
titles,
relating to land
who
in the
future,
and
by any evidence that might be supplied through perjury, misunderstanding of spoken words or innuendo.*
The
practical
wisdom of
this
position
is
corroborated by
places
spirit
prevails
It
tiacts
25.
The English
"The general
Statute of Frauds
away
the tempta-
tion to
in
it
is
cases,
unless there
randum
in writing.
was a memo-
The
object of
to
28
by
"
tJie
House of
Lords until after his death.' That part of the Statute relating
" No action shall be brought
to Suretyship reads as follows
:
whereby
special promise to
upon any
and
thereunto by
him lawfully
authorized."
ex-
ceptions being the statutes in Alabama, California and Delaware, which provide that the agent who signs his principal's
must be authorized
and the provision of the Kentucky Statute
which provides that an agent cannot bind his principal as a
Surety unless his authority is in writing," while in Nevada and
Wyoming no provision appears to be made for the execution
by an agent, of the suretyship contract vrithin the statute.*
A further variance from the English statute may be noted
in that a number of the states have enacted that verbal agreements to pay the debt of another are wholly " void," as distinguished from the English statute which provides merely that
name
in writing so to do,*
iWain
East 16;
Abdy, 3 Swanst.
vs. Warlters, 5
vs.
29 chas.
11,
Chap.
Section
3,
is
4.
in force in
664,
"I have
vs.
Huntley
884.
No
Maryland and
English
New
statute
'
is
in
Common Law.
3 Gill. & Johns,
bill
of the passage of
Kentucky Statutes,
Sec.
482.
the act cannot be definitely ascertained, but the bill recites that it
2953.
No
that follow
it
'
29
The English
statute
and those
26.
and scope
The English
of the
" agreement."
word
and although
its
planted in
that
might
many
states,
was almost
thus creating
new
by
literally trans-
fields of disputation
a revision.
is
'Alabama Code,
in writing.
Sec. 2152;
Cali-
It
therefore,
is,
that
provisions
Ryan
void
vs.
for
all
purposes.
It
confers
important to
contracts
verbal
of
held
the
the statute
providing
enforced
is
within
may
be
defendant
the
Vt. 224
938;
La Du-Kiug Mnfg.
La Du,
36 Minn. 473;
Lowman
Co. vs.
31 N.
vs. Sheets,
W.
124 Ind.
416; 24 N. E. 351.
Beard vs. Converse, 84 111. 515,
" The general rule, if a
Scott, J.
it,-
in this
The reason
to
Dung
But
vs. Parker, 52
see
Crane
vs.
N. Y. 496.
Powell. 139 N. Y.
the rule
is
State.
for
is
not
whom
it is
sought to be enforced."
30
know what
what
is
the
of an agreement,
result
necessary to be in writing.
in order to determine
promise
may
be the
fest, therefore,
'
writing not only to express mutuality, but also to set out the
entire bargain,
Wain
Warlters ^^ decided in 1804, the court holding that " promise " and " agreement " did not each mean the same thing, and that it was- not
conclusion' reached in
vs.
consideration in writing.
27.
Same
There
subject continued.
decisions.
is
the
American
In some
altogether
^*
Dig., Tit.
Agreement, A,
5 East 10.
1.
11
12
ft
Blng. 107;
Bing.
1
Hawes
(N. C.)
Cromp.
&
vs.
Armstrong,
Jerv. 461
James
vs.
S.
89.
is 19
& 20
Sec. 1624.
THE
aTATUTJi
Oil'
l-'itAUDS.
31
promise only need be in writing and that the " agreement " or
the terms or consideration upon which the promise is based
may
be shown by parol.
ment
states,
in such a
way
But
writing."
recites,
must be
in writing.
more
diffi-
Statute
the promise only and not the " agreement " that
it is
must be in
writing.
In Massachusetts the court held that " agreement " was used
and not in a technical legal sense
and that the word should be treated as synonymous with promand that if the promise is in writing without any recital
iu the writing of the consideration upon which the promise
is founded there is a sufficent compliance with the Statute.^"
ise,
15
The statute
Frauds in Ten-
action shall be
the ponsideration,
of
"No
nessee reads:
Sec.
Kentucky-Ratlifif
J.
*289.
vs.
Trout, 6 J,
vs.
Bigelow,
Marsh. 605.
Dorman
Florida
Fla. 281.
is
Packard
vs.
Richardson,
17
The statute in
Massachusetts now provides " The
Mass. 121
(1821).
Sec.
of,
Ross,
Yerg.
Findley, 3
330
Humph.
Campbell
vs.
of the statute is
Violett
Cranch
MississippiWren
Smed. & M.
AlaiamaThompson
Virginia
(Ij. S.)
vs. Pearce,
142.
91.
Ala. 204.
vs. Hall, 16
therewith but
may
be proved by any
It has often
happened in the development of our
law that a "judicial repeal" of an
existing statute has shortly been
followed by legislative action whereby the statute is made to conform
to the view of the Court.
Other
Patton,
vs.
forth
330.
re-
32
New
In
would
er such holding
becoming
conflicting,^*
amendment
But
in
In
Illinois
may
by
The
parol.
conflicting opinions in
by the
be shown
citations
made
in this section,
207.
Wain
vs.
^o
Connecticut
Sage
234;
vs.
Wilcox,
580
Conn. 81.
Maine
Gillighan
180;
Me.
vs.
Boardman,
29
79.
vs.
Valle, 2
Mo.
North Carolina
Dev.
&
Bat.
Law
23.
X. E. 890.
Patmor
vs.
Gregory
(Ind.)
vs.
Haggard, 78 111.
Logan, 7 Blackf
112.
been followed in
New
Leonard
Johns. 29.
vs.
Vredenburgh,
Hampshire
^Neelson
vs.
New
N.
Y.
Missouri Besin
607
Silence, 8 N.
vs.
21
Levy
Brewster
Jersey
Law,
Delaware
J.
Laing
vs.
Lee
20
337.
Weldin
vs.
Porter
Houst. 236.
Marylanct-~-B.utton
26
Md. 228;
Harr.
&
Elliott
Padgett,
vs.
Giese,
J. 457.
GeorsrtaHargroves
Ga. 321.
vs.
vs.
Cooke, 15
33
remedy
^^
will be enforced
is
whatever
made.^'
i/
28.
An
written "
orandum
memorandum
is
written
may
agreement
is
mem-
be mere-
and
set
rest
is no necessity for a
So that a mere proposal to contract in
in writing, there
is
memorandum.
suretyship which
This
may
If the
tract or
It
itself.
into is verbal
It
the parties to
whom
orandum being
mem-
though
Ante
23
2*
Sec. 23.
Co.
vs.
The
Troy
forceable under the statute.
Fertilizer Co. vs. Logan, 96 Ala. 619;
12 So. 712.
34
Again
which
one.
and takes a receipt which recites the terms and conditions of the
transaction.
It was held that such verbal contract was made
valid under the Statute by the memorandum in writing as
evidenced by the check and receipt. ^
The
It has been
memorandum
" to be
who
signs,^
is
memorandum
is
if it
unilateral written
satisfied,
But
The
memorandum
who
asserts
action
upon
29.
It
be
is
all
2B
Two
Raubitsehek
or
Blank, 80 N.
vs.
Y. 478.
It is clear that the statute does
memo-
Bament, 9 M. & W.
36.
retroactive effect
may
memorandum
as
so
Bill vs.
Although
In Bailey
S. 843,
randum
memorandum
memorandum
26Laurenson
Lef.
13,
be given the
validate a
to
papers
which
is
" and
memorandum
35
one of the
it is sufficient if
is
the sigTied
memorandum
required
is
it is
and
dates, amounts,
transaction, they
establishing the
The result
randum or note
form
as to constitute a
case in the
Williams
341;
Morris, 95
vs.
S. 456.
tJ.
is
to be
Wood
vs.
Midgley, 5 De G. M. & G.
of
ties
and
vs.
is
England
more recent
country and
this
discredited by
a.
Ridgway
vs.
Schafer
vs.
145;
chanics' Bank,
son
vs.
Buck,
Parkhurst
vs.
.59
Ingram, 50 Ind.
Farmers' & MePa. St. 144; John-
35
Van
J.
L.
338;
Cortlandt,
Mead
Ala.
dum.
vs.
St.
Paul,
42
So.
1001;
vs.
621.
But
287;
29Wilkinson
vs.
Evans, L. E.,
C.
Ala. 345.
28 Salmon
Falls Mnfg. Co. vs.
of
opinion
(Dissenting
Goddard
Curtis, J.) 14 How. (U. S.) 446.
The opinion of the majority of
the
Court
in
this
case
is
clearly
Work
E. 41.
vs.
Cowhick,
81
111.
317;
THE LAW OF
36
contract, but
evidence
is
STJKETYSHIP.
to written evidence of
must amount
it,
and
from
Jl
this
ings,
supplied.
The signature
30.
The
be signed by initials
printed signature
evidence of
is
its
memorandum.
to the
*"
memorandum to be signed.
mark of the party.^^
It
by authority, or
is sufficient if affixed
may
Even
or by the
if
there
It is
writing.
ment
name
is
and
is
immaterial whether
it is
it
Where
-writing. "^
the
memorandum
form of a
in the
is
without writing,^" or
if the
by an agent constituted
affixed
agency
tele-
is suffi-
wholly unauthorized, a
is
513;
Sel.
286;
Morris
vs.
KnifiBn,
37
Barb. 336.
writing
Evans
vs.
Hoare, L. R.
111.
354;
249.
to
be
"subscribed."
Ante
Sec.
47
Munn,
5 N. Y. 229
by,
341.
is
not suf-
Davis
vs.
Shields, 26
Wend.
Cal.
60 Pac. 418.
22;
Main,
130;
B.
.502;
1 Q.
P. 295;
ss
Rutenberg vs.
Worrall vs.
Yerby vs. Grigs-
213;
;
Ala. 382.
va,
50
"Special promise"
To
whom
37
made.
Same
Applied
to contracts of indemnity.
in the citations of
the preceding section, as to whom the promise must run, dis^
poses of the somewhat vexed question involved in Contracts of
Indemnity.
Alabama
the
Statute
of
Marcy
Mays
vs.
But
see
Caperton
vs.
Gray,
&
Ell.
is
within
Quinn-Shepherdson
Control
vs.
U.
S.
F.
& G.
Co.,
Co.
142 Minn.
172 N. W. 693.
(1919)
contract of indemnity is distinguishable from guaranty and
suretyship in that it undertakes to
save another from loss on some
obligation to a third person and is
not a promise to whom another is
428
38
fourth, party,
cases,
Same
33.
if
subject continued.
Surety
W.
32.
Co.,
Hall vs.
Equitable
101 ,S.
126 Ark. .53.5
"guarantor" undertakes
;
&
Ell. 453';
Reader
vs.
Kingham, 13
is
collateral to a con-
Dudlow (1874),
L. R. 19 Eq. 198;
overruling Green vs. Cresswell.
The determination of this question is dependent on whether the
Spear
vs.
Farmers'
39
If such
necessarily results,
it
is
aa
is
in such relation,
as the
now
exist, or
come
but
into exist-
mere
promise by
chandise to
is
to
indemnify^B
is
mer-
easily distinguish-
of A.
In the
to
of A, as in the
makes
first case,
merely
arises
which
yet
it
made by B.
and
also those
is
statute,
depend-
other independent liability for the same debt to the same person.
Such
is
the basis
cases
now
rest
40
and
it is
American
decisions
34.
glish rule
American
decisions.
upon a
bail
is,
cipal fails to
indemnitor
In both
is
not a co-surety.
cases, the
Hoskins, 30 S.
Minick
W.
W.
vs. Huif, 41
795; Fidelity
144;
Co. vs.
66 N.
W.
'Aldrich vs.
Jones
vs.
Shorter,
Kelley
Ross
vs.
WoUenberg, 31
Waterman, 151
875.
Neb. 516; 59 N.
& Casualty
Lawler, 64 Minn.
Contra
9
Ired.
111.
169; 37 N. E.
Draughan
(N.
White, 12 O.
vs.
Bunting,
C.)
10;
Easter
vs.
S.
219;
Nugent
vs.
son
vs.
THE STATUTE OF
FEATJDS.
exist as
41
is
merely a legal
own
it is a
promise to indem-
While
associated.*"
the promise
this
may
which
it
is
co-
it falls
is
why
short as a dis-
any
latter
event, undertakes to
default only to the extent of his contributory share of the liahility, but as to the co-sureties' contributory share, the relation
of the parties is exactly parallel with the position of the parties
is
contract contemplated
by the
statute.
the promises to pay another's debt, yet are based upon some
*o"A
promise by a stranger to
prima
is
promisor
agrees
shall
do what the
will be regarded as
promisor
is
do
expressly,
therefore, really
directly
however,
or
the
indirectly
debt independ-
his
own
behalf,
it
bound by an
When,
principal.
shall be paid,
is
to
is,
tO'
it,
contracted on
Am. Ed.
42
which credit
is
But every
collateral
another person
is
as a
'
36.
for
The expressions used by the parties, or the circumunder which the promise was made, may doubtless
determine.
stances
makes a charge in
*iLoomis
159;
St.
vs.
Ueberroth
Newhall,
vs.
S'impson
Eiegel,
15 "Pick.
71 Pa.
Penton, 2
Gleason vs.
Briggs, 28 Vt. 135; Faires vs. Lo280;
vs.
danc, 10 Ala. 50; Bugbee vs. Kendricken, 130 Mass. 437; Phelps vs.
Stone, 172 Mass. 355; 52 N. E. 517;-
'
L. 6; 83 Atl. 491.
42Dean
vs.
Tallman
105
Gottgetreu
"
'
Mass
55 N
IB &P
'
Even a
43
ute.**
to the promisor
stat-
and the
is
37.
whom
to
it is
the creditor.
is
an
120;
162;
vs.
Hayman,
H.
Bl.
101
Langdon
Ala.
vs.
vs.
Co., 80 S. E. 140.
**
Larson
(N. Y.)
vs.
Wynian, 14 Wend.
246.
Hermans
Contra
Anderson
vs.
Lambard,
21 Me. 308.
is Walker vs. Richards, 41 N^. H.
Noyes vs. Humphreys, 11
388;
Gratt. (Va.) 636; McGowan ICommercial Co. vs. Midland Coal Co.,
41 Mont. 211; 108 P. 655; Sliay vs.
Cruxton, 116 N. Y. Supp. 1123; .)7
So. 388.
*
Ruggles
vs.
Gatton, 50
111.
412.
44
In reference to
is
all
38.
This
not be in writing.
caseH in
which credit
is
rests
deM now
B's
arise.
now
you in 30 days
him a
execute to
and absolute
receipt in full," it
ihere being no subsisting principal liability to which
raises an original
liability,
it
can be
wllatera!).**
*'
Gibbs
fs.
Blanchard, 15 Mich.
"The
statute
and several
liability of the
course
may
be constituted in the
joint
less tnere is
person to be guaranteed."
by public taxation
is
collateral
case a contractor
was asked
In this
to per-
ment
for this
resolution,
The
Stone vs.
Murphy, 91 Ind. 1.
48Lakeman vs. Mountstephen, 7
Boyce
vs.
work.
No
should
such
authorize
resolution
the
was
Goodman
vs.
Chase,
Barn.
&
state,
creditor of all
while
tlie effect
means of
So a promise
of this
collecting
pay
is
dis-
if the
be to deprive the
debtor, yet the lia-
in consideration of a forbearance to
suit,
excludes a
liable.^"
39.
an absolute
may
from the
to
is
from the
45
Co-existing liability
statute requires
a co-existing liability of another to which the promisor's liability is collateral, if the object of the promisor's contract is to
still subsists,
would be
for fraud, and
wise,
To hold
other-
and cover
to effectuate rather
M.
1886; Mallory vs. Gillett, 21 N. Y.
412; Ames vs. Foster, 106 Mass.
857; Langdon vs. Hughes, 107
Mass. 272 Harris vs. Young, 40 Ga.
Prime vs. Koehler, 77 N. Y.
400
Meriden Britannia Co. vs.'^Ol; Davis vs. Patrick, 141 U. S.
65;
12
Zingsen, 48 N. Y. 247; Mulcrone vs.
S. Ct. 58; Eaabe vs. Sauier.
479;
Amel-ican Lumber Co., 55 Mich. 622;
148 N. Y. 81; 42 W. iJJ. 516; Kmerson vs. Slater, 22 How. (U, S.) 28
22 N. W. 67; Day vs. Cloe, 67 Ky.
Rhodes vs. Matthews, 67 Ind. 131
(4 Bush) 563; Green vs. Solomon,
McCreary vs. Van' Hook, 35 Tex.
80 Mich. 234; 45 N. W. 87; Whitte-'
631; Greene vs.' Burton, 59 Vt. 423
more vs. Wentworth, 76 Me. 20;
10 Atl. 675; Muller vs. Riviere, 50
Watson vs. Jacobs, 29 Vt. 169;
Tex. 640; Patton vs. Mills, 21 Kas
Packer vs. Benton, 35 Conn. 343;
163; Wills vs. Cutler, 61 N. H. 405
Smith Bros. vs. Miller, 152 Ala. 485;
44 S. 399; Daniel Co. vs. Dickey,
Walnut Co. vs. Courtney, 96 Ark,
6 So. App. 548; 65 S. E. 301; Ellis
46; 130 S. W. 566; Johnson vs,
vs. Felt, 206 Mass. 472; 92 N. E.
Stapleton Co., 132 Ga. 164; 63 S,
702; Sheppard vs. Newton, 139 N.
E. 827; Blakeney vs. Nalle & Co.,
C. 533; 52 S. E. 143; Palmetto
45 Tex. Civ. App. 635; 101 S.
Mfg. Co. vs. Parker & Anderson, 123
875; Howell vs. Harvey, 65 W. Va
Ga. 798; 51 S. E. 714.
310; 64 S. E. 249; Mankin vs,
49Murto vs. McKnight, 28 111.
Jones, 68 W. Va. 422; 69 S. E. 981
App. 238.
Rice vs. Hardwick, 124 Pac. 800
50 Ellison vs. Wisehart, 29 Ind.
Munroe vs. Mundy & Scott, 146
32; Duffy vs. Wunsch. 42 N. Y.
W. 819; Goodling vs. Simon, 54 Pa,
243.
Sup. Ct. 125; Davies vs. Carey, 72
51 Harrison vs. Sawtel, 10 Johns.
Wash. 537; Frohardt Bros. vs. I>uff,
Garner
vs. Hudgins, 46 Mo.
135 N. W. 609; 156 la. 144.
242;
Aid. 297; Butcher vs. Stuart,
& W.
4G
The
is
sought
none ike
less
other.
consideration, which
to
it will
be void
which
The same
is sufficient.
two
to
The
&.nd.
contract of one to
pay his own debt for goods purchased by himself does not re
quire a written memorandum to prevent, fraud.
Sufficient pre
perjury
is
afforded
by
the
fact
that the comtection against
mon law requires proof of the consideration to establish the
contract, and the consideration being shown the liability will
be implied, and this applies with equal force where one is a
beneficiary of the main contract, although incidentally in the
situation of a promisor in suretyship.
But there
is
consideration moving
the promisor.
from the
to
to
itself,
safeguard this
own
in the possession
it
applied to
to so
apply
47
it is
merely in fur-
The
tion.
trust.
Other situations
''^
will,
Where
(2)
its
application,
thereafter verbally agrees with the creditor to pay the debt out
of this property.
The
first
The
statute cannot
even
if
who
in the end
who
must pay
fend against the creditor the latter could pursue his remedies
against the principal, and he in turn enforce his contract with
the promisor.
promisor
may
it
is
property held by
upon the groimd that it is merely
pay the creditor what he otherwise would have to
This
him.
may
a promise to
52
be said
to rest
R. 627;
230; Power
29 N. E. 185;
227;
10 S. E. 727;
Bott
vs.
Barr,
McMorran,
64 Mich. 664; 31 N. W. 521; Smith
vs. Exchange Bank, 110 Pa. 508; 1
Atl. 760; Fehlinger vs. Wood, 134
95 Ind. 243;
Pa.
517;
Mitts
Hilton
vs.
vs.
vs.
vs.
Rankin, 114
111. 52;
Plott vs. Foster, 7
Ala.
vs.
53
Hindman
vs.
Langford, 3 Strob.
Hartman, 72
207
Meyer
Carter
vs.
Zenblin,
Dinsmore, 21
442
436
Justice
vs.
Tallman, 86 Pa.
Adams, 37 Vt.
147.
vs.
68
111.
Ind.
4:8
pay the
own
his
debtor,
possession,
Such an arrangement
is
own debt
in a particular way.*
41.
inal promise.
A
itor,
by the
cred-
promise of Guaranty or Surety, does not create an original undertaking on the part of the promisor and such promise must be
in writing.^^
If,
some
may
BiDock
Kenzie
vs.
vs.
Jackson,
Hammil
vs. Hull,
and he
Richardson
vs.
Robbins,
124
Bunneman
vs.
WagGray
vs.
Davis,
62
Pae.
45 Ga/l38; C.
& W.
Putney
Farnham, 27 Wis. 187; Calkins
Liddell,'
69
111.
689;
vs.
vs.
must
vs.
cipal contractor if he
isor
See also
Murphy
vs.
Renkert, 59
36
vs. Neaster,
0. S. 337
65
Nelson
vs.
Boynton,
Met.
his
loughby,
1014;
60
Hahn
Conn.
vs.
468; 22 Atl.
Maxwell, 33 ill.
STATUTE OF
Ti-IE
ises a
"warehouseman
which he
is
warehouseman waives
shipment
to
49
FEAtTDS.
to
is
own
to
the
The same
haps,
is
result,
the
is
the debtor.
is
is
none the
less bind-
another/*
42.
is
already bound
is
it is
not within
is
thereby extinguished.^^"
is
to
pay
if the other
is
does not,
it falls
promisor.
is illustrated
the debtor should escape his liability merely because his promise
BeProut
vs.
o' Williamson
App. 116.
vs.
Rexroat, 55
444;
Wis. 301;
VB.
Weisel
18 N.
111.
vs.
W.
Malone,
34
Spence,
59
165;
Blount
vs.
71
287;
111.
15 Minn.
White,
Heaney,
6 South. 190.
Castling
vs.
Hodgins
185;
vs.
Wills vs.
137.
Aubert,
East
32;
&
S.
ssa
Humphreys
Branch Coal
174
M.
Co.,
613.
140 N.
W.
912;
60
it
extinguishes the
debt of another."
is
Statute,
the bill
for
it is
An
gagee to pay
if this
first
to
on his debt.
lien holder
liability
on the land.
by another, is not within the Statute, since the promisor has already become liable for the first mortgage by reason of his ownership of the land."^
69
Brown
vs. Curtiss,
]S.
Y. 225
man
336
107
272
Wy-
bile &.
ment
Such
a case seems to involve all the principles upon which the cases rest in
which the promisor is the owner of
the note and transfers
it
to the cred-
own
guarantee.
is
to pro-
own
cago, 48
501
Bateman
223;
'628;
Comstock vs. Xorton, S@
Mich. 277; Dodge vs. Zimmer, 110
N. Y. 43; 17 N. E. 399; Malone vs.
Keener, 44 Pa. 107; Landis vs.
Royer, 59 Pa. 95; Dorwin vs. Smith,
51
43,
The
may
own
debts
further illustrated in
is
debt
that
is
it is
the promisor's
pay his
statute,"^
agrees to
pay by ex-
made only
if
whose benefit
44.
to the debtor is
it is
same
made.
An
credere commission,
sons to
who
sition analogous to
who buys
third party in
case, the
one
In the
latter
it
62 Ante
Sec.
Krank, 77 N. Y.
31.
Becker
vs.
665; 75 App.
Div. 191; affirmed, 176 X. Y. 645;
68 N. E. 1114; Sargent vs. Johns,
206 Pa. 386; 55 Atl. 1051; Gay vs.
Schaefer, 52 Wash. 269; 100 P. 334;
Citizens Bank vs. Douglass, 161 S.
W. 601; Bone vs. Smith, 164 S. W.
922; Bicknell vs. Henry, 69 Wash.
408; 125 Pac. 156.
63
Eabbermann
S.
vs.
Wiskamp, 54
179;
Jones,
123 Pae.
148;
32 Okl. 713.
64
Todd
vs.
Tobey, 29 Me.
Ayres, 10 Mo.
219;
538;
First Nat. Bank vs. Chalmers, 144
N. Y. 432; 39 N. E. 331; Keyes vs.
Allen, 65 Vt. 667; 27 Atl. 319;
Skinker vs. Armstrong, 86 Va. 1011;
US. E. 977; Hooper vs. Hooper, 32
W. Va. 526; 9 S. E. 937; Green vs.
Hadfield, 89 Wi.s. 138; 61N. W. 310.
= Mason vs". Hall, 30 Ala. 59'9;
Robbins
vs.
Sacramento Lumber
THE LAW OF
52
STJBETTSIIIP.
45.
own
PlaintifE's al-
legations.
petition or declaration,
statute to be in writing,
Writing.
made, and
it
contrary
shown.
is
will be
presumed
to be in lawful
is
in
agreement was
form
until the
is
con-
cemed."'
46.
tract"*
If,
be in-
Ecker
vs.
54
S.
95;
Standard
may
Box
158
vs.
567;
112 P. 454; Dennison vs. Barney, 49
Colo. 442; 113 P. 519; Delaware
Insurance Co. vs. Pennsylvania Fire
Insurance Co., 126 Ga.'380; 55 S.
E. 330; Hanson vs. Svaruerud, 18
X. D. 550; 120 X. W. 550; Matthevvs vs. Towell
(Tex. Civ. App.),
138 S. W. 169.
See note.
Contra (by statute)
Langford
vs. Freeman, 60 Ind. 46; Waymire
vs. Waymire, 141 Ind. 164; 40 N.
E. 523; Burden vs. Knight, 82 Iowa
584; 48 N. W. 985.
cs strouse
vs.
Elting, 110 Ala.
132; 20 South. 123; Switzer vs.
Skiles, 8 111. 529; Murphv
vs. Stell
"
43 Tex. 123.
Co.,
Cal.
Con-troBabcock
Iowa
137.
vs.
Meek,
45*
terposed by demurrer."*"
tively
53
bill or petition
statute.
shows affirma-
issue of the statut cannot be put into the record in this way,'^
nor by request for special findings.'* Even though the defend-
Ky. 463;
Brower, 37 0. S. 402;
2 Tenn. Ch.
parte Banks, 64 So. 74;
Randall
09
(U. S.)
house Co.
Howard
Macey
185
Terrill, 76
vs.
vs.
Childress,
vs.
Ex
438;
vs.
587;
Ala. 275.
Lyon
'
268;
Crissman,
vs.
Marston
vs..
22 X.
C.
Swett, 66 X. Y.
29 X. E. 232;
kins,
31
S.
W,
938;
111.
S.
W.
138.
14.
'-Warren
Brigham
243;
Cosand
294; 50 X.
'3
Porter
Dickson,
vs.
115;
vs.
W.
vs.
27
111.
Carlisle, 78 Ala.
vs.
Bunker, 2
S.
D.
84.
Wormser, 94 X. Y.
431.
(J'Burt
vs.
IloUingshead
vs.
433;
Duck
Co. vs.
Also Billingslea
Eq.
removes
48,
where
it
the statute
is
if
held that
it
is
not
not
in
writing,
and
that
the
plaintiff'
tract
ing his
issue of
jury,
is
not prevail.
ever,
strongly
^Vinn
vs.
169.
from in
Md. Ch. Dec.
dissented
Albert,
54
Lex
47.
fori
The statute
of frauds remedial.
its
is,
is
it
made, for
it.
Brown a verbal
Frauds, made in France, and
is
brought will
'"^
vs.
in England,
and the
decision of that case holding that the action could not be main-
tained
is
T5
12 C. B. 801.
'8
Bain
Cases
vs.
be proved
Whitehaven, 3 H. L.
1.
Dower
vs.
Chesebrough,
36
Conn. 39; Townsend vs. Hargrave,
118 Mass. 325; Emery vs. Burbank,
'7
Heaton
O.
S.
101,
Williams,
J.:
"This
The
no part of the conbut its admission or rejection becomes a part of the proceeding on the trial, where its competeney and sufficiency must be detract
is
itself,
termined.
When
dence
is
tract.
And it seems clear, that
such a statutory regulation prescribing tile mode or measure of proof
and
Ballantine
vs.
Yung
5 Ind.
CHAPTER
III
COMMERCIAL GUARANTIES.
Sec. 54.
See. 55.
Retrospective Guaranties.
Sec. 56.
SSc. 57.
Consideration.
Sec. 58.
Form
Sec. 48.
Sec. 49.
Sec. 50.
Sec. 51.
See. 52.
Sec. 53.
of Principal Debtor.
of Guaranty.
Continuing Guaranties.
Sec. 59.
Sec. 60.
Sec. 61.
Sec. 62.
Guaranty
Sec. 63.
Test of
Sec. 64.
Sec. 65.
Sec. 66.
of Collectibility.
Due
Diligence.
Sec. 67.
.Cases in
Sec. 68.
Sec. 69.
Sec. 70.
Sec. 71.
is
Necessary.
48.
is
nify
1
him
There
if
is
no special significance
word " commer-
The
con-
a judicial or
of the principal,
or business transaction
is
no
dif-
default
of
the
principal
in
any
The
technical
Guarantor
if
at
all,
is,
contract
of
the
Guaranties."
55
56
The
is
from
chapter.^
The
is
that of
wherein letters of credit or guaranty constitute the inducement for the owner of merchandise to part with his possessales
mediums
pervades the law of this subject to the end that these convenient
is
to
them
to serve the
construction be
of
commerce
upon the
COMMERCIAL GUAEANTIES.
in circulation.
57
may
happen that both the parties use the words with some special
meaning, and in such a case to give the words the force Df
their general sense would not express the intent of either party.
would seem to be opposed to the elemientary prinwhich forbids the imposition of any liability by parol.
But giving to a contract the same construction
which the parties themselves have given it, is establishing the
guaranty
it
ciple of Suretyship,
than varying
it
by
parol.
parties themselves
may
be ascer-
The use of
as proper
The law
58
Where
The
Bank
E. 383.
83 O.
vs. Cole,
50; 93 N. E. 465, it
was
'
COMMERCIAL GUARANTIES.
interpretation
is
shown
to'
59
parties.
special interpretation
struction,
In such
must
prevail, even
might be contrary
to the intention of
both parties.
,
.50.
ings, the
It is
upon
or obligations
may
be imposed by implication,
construction should be
made which
will hold
properly favored.''*
"
Mamerow
Oc, 206
111.
vs.
626;
Where
National
69
Lead
N. E. 424;
vs. Kloelblen, 77 N. J. L.
74 Atl. 511; Mudge vs. Varner,
59 S. E. 540.
J46 N. C. 147
79'1;
125 Oal.
and that no
beyond
liable
Newoomb
To
him
60
expressed
the instrument,
in
has
been
fully
aiscertained
tion applies,
Beyond
or
this there
all
agreed.'
promisor in Suretyship.
It
may
tlie
language he happened
to
to
to express his real intent, or whether, having used words, susceptible of a double
against
one who
in
differ-
COMMERCIAL GUARANTIES.
" Theire
which
is a sense, inidoubtedly, in
61
it
may
be said that
it
is
this:
is
He
is
ers
as to the
is
party."
and
"
strictly in line
who held
upon the
(Russell vs.
and
critical
ment.
credit,
Ante
Sec. 18,
and
in England.
Drummond
515;
Hoey
vs.
vs.
Ell. N. S. 89;
Prestman, 12 Wheat.
-Jaorman, 39 N. J. Law
"There
plicable
in favor of the
Marshall theory.
acumen
In
guaranties,
and
other
letters
of
obligations
of
closed
in
()2
There
is>
ambigTious contract of Guaranty most strongly against the Guarantor even in oases where the real intent of the parties has not
To extend
been ascertained.
to
fit,
is
no
bettei
The
and
if
reasonable under
all
amount
as
the circumstances.
is
ascertained to be
Such appears
to be
faitli
Y.
leable
Freeborn, 63 N.
vs.
Allen, J.; Bridgep<wt MalIron Co. vs. Iowa Cutlery
Beloni
.387,
of Judge
influenced
their
obligation
appropriate
by
words requiring notice to them of
each advancement, or any other con-
safety.
14 B.
Mon. (Ky.)
184;
Mussey
vs.
London and
iC.
C. 447.
63
COMMERCIAL, GUARANTIES.
(reneral guaranty.
51
may
all
persons, or to
may
whom
to
it is
it
concern,
who
presented
acts
to
shown
to others as
it
would be giving
an instru-
legal countenance to
general guaranty
assignee
may
who makes
is
may
assignable and
be enforced by the
it
or the assignee
it
cial
guaranty of a non-
assignee,
Lowry
vs.
Rembert, 2 Rich. N. S.
410; Manning vs. Mills, 12
Up. Can. (Q. B.) 515; Van Wart
1-s. Carpenter, 21 Up. Can.
(Q. B.)
320; Wheeler vs. Mayfleld, 31 Tex.
395; Ix>nsdale vs. Lafayette Bajik,
18 0. 126; Birckhead vs. Brown, 5
Hill (N. Y.) 635; Union Bank vs.
Coster, 3 N. Y. 203; Tidioute Sav.
Bank vs. Libbey, 101 Wis. 103; 77
Griffin
vs.
(S. C.)
N. W. 182.
i3Everson
516.
while
it
not,
will be avail-
Gould
vs.
Ellery, 39 Barb. 163;
Stillman vs. Northup, 109 N. Y.
473; 17 N. E. 379; Carpenter vs.
Longan, 16 Wall. 271; Ellsworth
vs. Plarmon, 101 III. 274; Tidioute
Pav. Bank vs. Libbey, 101 Wis. 193;
77 N. W. 182; Codman vs. Vt. & C.
R. Co., 16 Blatehf. l&o; Partridge
vs. Davis, 20' Vt. 499; Louisville,
N. A. &
R. Co: vs. Louisville Trust
Co., 174 U. S. S52.
But see Edgerly
vs. LavFson, 176 Mass. 551; 57 N.
E. 1020.
i*a Bassett vs. Perkins, 119
S. 354;
Rogers
88, 136 S.
W.
vs.
128.
N. Y.
Harvev, 1*3 Ky.
64:
Guarantor
the
as against
same defenses
5!!.
as the
maker against
<)riginal payee,
'^
Special guaranty.
Guaranty
is special
when
it is
addressed to a particular
and when
The very
written instruments
name
promisee so as
to enable
of the
it
is
The
and confidence in a
partic-
upon a
spe-
thus substituting himself for the real promisee create any legal
obligation against the guarantor.
There
is
is
be acted
Nat.
Contra
i?
234;
Grant
Hoiist. (Del.)
is
Eobbins
same
4 Oaach
MoOlung's Ex., 2
Naylor,
vs.
Taylor
for the
vs.
24.
Bingham, 4 Johns.
476; Evansville Nat. Bank vs. Kaufmann, 93 N. Y. 273.
But see Levy vs. Oohen, 92 N. Y.
S. 1024, where it was held that a
contract hy M. to build a synagogue being assignable, a guaranty
to pay him for the work is a general
and not a special guaranty, so that
M. may assign it with the contract,
and the guarantors be liable to the
vs.
assignee.
COMMEECIAL GUARANTIES.
65
reasons a guaranty addressed to one will not be held for advancements made by that one and another.
53.
named
To hold
if the
advances are
made
to
the
whom
commonly
arises
The
others.
letter
of credit
54.
A guarantor
of a joint enterprise
may
stand
strictly,
A
,583.
who
are
named
upon
his
made
to
in the instrument.
for
In
glass for which E. never paid.
a suit against the defendant guarantor by F., it was held that dissolution of the firm discharged the
defendant from all further liability
under the guaranty. See also Schoonover vs. Osborne, 108 Iowa, 453;
79 X'. W. 263. In Walslh vs. Bailie,
10 Johns. 180, the guaranty was
addressed to A. who did not, however, make the advancements, but
directed the customer to B., himself
guaranteeing payment to B. Held
that .\. could not recover from the
Guarantor.
himseH a partner
with the knowledge of the creditor,
associated with
DO
all fur-
ther liability."
him
55.
the firm
is
dissolved.
Retrospective guaranties.
Whether or not a guaranty is retrospective or is merely prosupon the form of the contract. It is
make such
it
transactions that he
.a
Words
If his eon-
meaning.
If indefinite expres-
to future
transactions.^*
on the books of the creditor. Although delivered at the place of business of the firm they were not so
delivered on the credit of the firm.
Held that the Guarantor was liable.
2iCremer vs. Higginson, 1 Mason
323; Holland vs. Teed, 7 Hare 50;
Cosgrove Brewing & Malting 'Co. vs.
Starrs, 5 Ont. 189;
Simson vs.
Oooke, 8 Moore 988;
Hawkins
vs.
New
23
People
vs. Lee,
10 N. E. 84;
Harwood
20 III. 367.
See also Barnes vs!
OuShing, i&8 N. Y. 542.
24 Morrel vs. CWan, L.
R 7 Ch
Div. 151;
Weed
et al. vs.
Chambers
upon a
was
em-
COMMERCIAL GUAEANTIES.
Guaranty without knowledge
56.
No
privity of contract
is
67
of principal debtor.
the guarantor.
called
loss
Guaranty Insurance,
upon
the guarantor
may
Such
Consideration.
57.
The
sideration.^^
But
the
consideration
may
arise
from several
sources.
The
may pay
the guarantor a
money
If the Suretyship
is
a contract of guaranty.^'"
then the obligation is "To pay any
At
deficiency which may be due."
the time of the execution of the
guaranty, the lessee had already entered upon his term and vpas at that
time in arrears for rent. Held that
the past due rent was not covered
by the guaranty.
25 Solary vs. Stultz, 22 Fla. 26'3
Hughes vs. Littlefield, 18 Me. 400.
2iiPeake vs. Dorwin Est., 25 Vt.
28.
27
Ante
Sec.
16.
549
Kennedy,
Co. vs. S. S.
584; 56 Pac.
Heyman vs. Dooley, 77 Md.
457
16'2; 2'6 Atl. Ili7; Oahill Iron Works
;
Const.
Co.,
123
etc.,
Cal.
599.
68
from
efit
efit to
any ben-
A ben-
a eonaideration
is
Such
is a suiEeient consideration.^*
of
fails."
cient
consideration
creditor
to
to
the
guaranty,
although
suffi-
the
to that effect.'^
its
burdens.
So again an agreement
otherwise.^^
117 Cal. 87; 48 Pac. 1021; Robertson vs. Findley, 31 Mo. 384; Savage vs. Fox, 60 N. H. 17; Garland
vs. Gaines, 73 Conn. 662, 49 Atl. 19.
3" Coffin vs. Trustees, 92 Ind. 337
Co.,
The American
courts have
to
withdraw a
suit will
.(Ala.)
341.
33
Webbe
Co., 58 111.
vs.
App. 226
Shape
vs. Gal-
69
COMMBECIAL GUAEANTIES.
promise of the principal and creditor out of -which the consideration arises shall result in
some
benefit to the
prindpaL
Form
58.
of
If
of itself
it is
^aranty.
The
Letters of recommenda-
and the fact that the one to whom such letters are addressed acts upon the recommendation imposes no obligation
upon the writer.^^" It is not necessary to use the words "promise " or " guaranty " but words must be used which clearly
anties,
import a promise.
A mere
make
ad-
ment,
is
good."
however, the obligations of third persons are accepted in
If,
ferring
to a
Hill, ir3
35
890;
Killian
vs.
Ashley,
511.
350 Russell vs. Clark, 7
24
Ark.
Cranch 69
Propp, 66 N. Y. S. 7'53.
Bushnell vs. Bishop Hill Colony, 2 111. 204 Thomas vs. Wright,
27'2; 3 S. E. 487.
98 N.
But see Miami Co. Nat. Bank vs.
Crooks
vs.
30
amount
to a guaranty,^*
and
to sell goods to
3911; National
vs. Rockefeller,
F. 22.
^^ Case vs. Luse, 28 Iowa 527
Kimball vs. Roye, 9 Rich. Law (S.
C.
295; Eaton vs. Mayo, 118 Mass.
)
Sturges
0. S. 153;
248
51 9o. 46.
70
another " with assurance that any contract of his will and shall
be promptly paid " it was held that the parties will be presumed
to
59.
Continuing guaranties.
If
The
continuing guaranties.
much mooted
as to
The
ques-
make advances
to another
on
the credit of the promisor, will bind the guarantor for any
amount
at
ly for any
To
strue
asks for
is
bound mere-
letter of credit.
and con-
guaranty
is to
A letter of guaranty read " If you vsdll let the bearer have
what leather he wants, and charge the same to himself, I will
see that you have your pay in a reasonable length of time."
This was held to be a limited guaranty.
The Court says:
" Every person is supposed to have some regard to his own interest and it is not reasonable to presume any man of ordinary
prudence would become surety for another without limitation
;
as to
by dear implication."
*^
vs.
Pao. 977.
In iS'chwartz vs. Hyman, 107 N. Y.
562; 14 X. E. 447, the guaranty
COMMEECIAL GUARANTIES.
71
The remarks
money
to
guaranty/"
It is held, however,
resort
be had
should
to
Stanford, butcher,
to this the
Court said
that question
pounds
may buy
:
" It
of
is
sterling, that
John
Heffield."
obvious that
Wm.
York, of
In reference
we cannot
decide
itself,
was the subject matter which the parties had in their contemplation when the guarantee was given.
It is proper to ascertain
that for the purpose of seeing what the parties were dealing
about, not for the purpose of altering the terms of the guarantee
And
it
be a continuing guaranty.*'
42
Wright
vs.
Griffith,
478; 23 X. E. 281.
See also Young vs.
Wis. 33'3 10 N. W. 394
;
121
Ind.
Brown, 53
Bastow vs.
vs.
511.
43 Heffield vs. Meadows, 4 C. P.
Div. 595.
See also White's Bank vs. Mylea,
7'3' N. Y. 336.
In this case the guar"Please discount for
anty read:
Mr. Cummer to the extent of $4,000.
He will give you customer's paper
You can also conas collateral.
sider me responsible to the bank for
the same." Held to be a continuing
guaranty.
Earl, J. : "It is impossible to say
with certainty whether it was intended as a guaranty for a single
72
If
guaranty
is
continuing
one,
unlimited
as
to
the
60.
is
not ex-
principal.
letter of credit
was held
to be continuing
and
to cover
any
for
to exceed $1,500.
223
Mussey
Eiayner, 22 Pick.
Priestner, L. R., 2 Ex.
vs.
Wood vs.
27
3W;
O Atl. 813.
**
'
'
43aMamerow
Co., 206
vs.
National
I^ead
COMMEKCIAL GUARANTIES.
Absolute gujxanties.
61.
the principal
it
is
73
is
fixed
if
the promisor's
liability
a conditional guaranty.
it is
amount
common forms
of
payment
of absolute guaranty.
and the
are fixed,
liability of the
guarantor
guaranty
If the
is
is
not re-
not necessary to
It is
first
guaranty
Where
is
is
no condition
definite time,
and the
is
a sale or whether
bill
absolute.*"
credit
the debtor,
the
is
liability is absolute,
it
or note.
But
see
Lemmert
vs.
Guthrie
95 N. W.
Brothers, 69 Neb. 409
1046, where the court held that
guarantors of a. note were entitled
to reasonable notice of default of the
;
London,
Cal. 415;
74
guaranty of a note.
absolute
In either case
it
basis
is
conditions of
demand and
performance of the
the lease,
is
made
lessee's
payment
of the rent
Guaranty of
62.
and the
lessee.*"*
collectibility.
from an absolute
The latter imposes a liability to pay if
the principal does not, and the former if the principal can not.
No liability attaches upon a guaranty of collectibility or solvency until in some way it is made to appear that the principal
was not able to pay at maturity. Mere failure to pay the debt
at maturity will fix the liability upon the promisor in an
absolute guaranty of payment, but it is necessary to show more
than mere default of the principal to bind the guarantor of
Such a promise is conditional, and if the credicollectibility.
tor by due diligence might have recovered from the debtor at
maturity, or at any other time before bringing his action against
guaranty of
collectibility is distinguished
guaranty of payment.
Div.
J'
.549;
"The
fundamiental
distinction
is
1;
75
COMMEKCIAL GUAEANTIES.
'No special form of words
is
fairly import
note good " ** or " I guarantee the within note good until
will pay it, provided you can't eollect.it off of
paid " * or "
^^
"
"
liable
only in the second instance " is held to
or
them
We
had
There
is
is
apparently by the most forcible reasoning is that " due diligence " does not require a legal proceeding against the principal
is
the obligation
Cowles
satisfied,
vs. Peck, 55
Conn. 251;
10 Atl. 569.
^0
Ordeman
vs.
Lawson, 49 Md.
135.
SI
Pittman
vs.
Chisolm,
43
Ga.
442.
In
ous insolvency,
is recognized by the
law as answering the demand of due
diligence, and as dispensing, under
such circumstances, with the more
515,
11
MeClurg
Woods
Marsh
vs.
Fryer,
15
Sherman, 7
Pa. 100;
vs. Day, 18 Pick,
321; Miles vs. Linnell, 97 Mass.
298 Dana vs. Conant, 30 Vt. 246
Benton vs. Fletcher, 31 Vt. 418:
Peek vs. Frink, 10 Iowa 193 Brackett vs Rich, 23 Minn. 485; Dillman
Pa.
293 ;
vs.
vs.
NadelholTer, 160
111. 125; 43 N.
Middle States L. B. & C. Co.
Engle, 45 W. Va. 588; 31 S. E.
E. 378
vs.
'
76
Opposed
to this are
many
barren of
one
may
is
not an
tlie
creditor
just
is
and
knows of
of
infa.llible test
results.
action
way
as to
be
assets belonging to
The law
to be the perfection of
son,
is
said
human
rea-
such a reproach."
Or course,
if
the debtor
is
solvent
able circumstances.
If the principal
French
the
familiar
sante ratione
steps
in
and
maxim
of
law
'ces-
the creditor
relieves
cuting his
rule
suit.
ceasing,
the
The reason
rule
of the
itself
must
cease.
"This must be
so,
unless
we are
181
Bos710;
Div.
The reason usually urged in support of this view is that if the bringing of an action is a condition precedent, then the guarantor
upon
may
in-
although of no benefit
to himself, that the parties have
sist
it,
of
substitute a
of witnesses.
OOMMEKCIAL GUAEANTIES.
the debtor
and
fails to
a return of nulla
inform the
bona by the
sheriff
officer,
77
What
constitutes
due
sidered
it
'^
!64.
advancements thereon.
The guarantor
is
If he
is
to^
make advances
relying
upon
his guaranty.
not take effect until the delivery of the paper to the payee, and
it
much
to
be binding
is
may
given,
protect
194.
vs.
Graham
vs. Bradley, 5
Humph.
(Tenn.) 476.
But
see
Mead
vs.
Parker, 111 N.
case,
In each
in regard
to
men might
the inferences
9.
TiE
78
LAW OF SURETYSHIP.
is to
if notice
of ac-
be considered unnecessary.
know whether
(3)
advancements.
notice of
payment
volved in
all
of these,
There
is
and that
field of discussion
is,
in-
is
essentially different
to be
manu-
He
be accepte^d or when
it
its
validity
when
is
not
COMMEBCIAL GUAEANTIBS,
affected
by the uneertainty
oepted.
The sending
it is
tV
rangement
It
always has notice by the mere receipt of the goods that his order
has been accepted and that there is no corresponding construc-
The
time of
tJie
advancements-
the position of
an
making a mere
offer of guaranty,
and
by the one
to
whom
it is
addressed.
said
to the
may
either
is
This, how-
argument in respect
The argument
it is
until accepted
is
know
offerer, or consist in
so often insisted
guarantor to watch the debtor's affairs and so lighten his prospective loss
is
it
tain cases.
and remains
insolvent,
any way
must
re-
frain from doing anything which will increase the burden as-
sumed by the promisor, does not put upon the creditor any duty
of assisting the promisor to escape a loss by means of timely
notice or any other act of courtesy.
Although courts of last resort have widely differed upon the
question of notice of acceptance and advancements, upon principle, the conclusion
(1)
The
seems to be
80
are the
same
as a simple contract
is
not
The
(2)
payment
6S.
is fixed at
tlie
of
^*
two
letters
In Edmonston vs. Drake,'" decided in 1831, notice of acceptance was given to the guarantor and the Chief Justice again
takes occasion to express his view
on
In Douglass
vs.
that he had
him
eo 7 pet. 113.
COMMEKCIAL GUAEANTIES.
81
" A
Mr. Justice Story says
of guaranty has a right to know whether
whom
it is
means
to give credit
it
it is
addressed
or not."
In 1836. the court after citing the three cases above men-
We
tioned, says :
"
trine so long
and
see
was of a
bill
"^
and in
this
amount
While much
is
is
rule, therefore,
may
be stated to be that
of the contract.
207 (1838), where the mle is affirmed upon the authority of the
four cases cited in the text. " This
Lee
vs. Dick,
Adams
See also
is
not
now an open
after
court,
have
10 Pet. 496.
the
question in this
decisions
made in
Edmondson
Russell
been
Clarke,
which
vs.
vs.
Drake,
Douglas
vs.
....
It is in itself a reasonable
guarantor
rule,
enabling
know
liability;
the
to
Mason
323.
Cremer
vs.
vs.
Douglass, 12
Higginson, 1
the acceptance
is
to
Louisville Mfg.
How.
10
461.
vs. Wells,
104 U. S.
Mathews, J.: " The rule in question proceeds upon the ground that
the ease in which it applies is an
offer or a proposal on the part of the
guarantor, which does not become
effective and binding as an obligation until accepted by the party to
whom it is made; that until then it
is inchoate and incomplete and may
t>e withdrawn by the proposer."
1G5,
THE LAW OF
82
STJEETYSHIP.
somewhat reduced
its
application even in
The
remains solvent.
Nor where
itor,
the guaranty
is
made
is
said to
from the
and
to
is
ex-
receive
The
by the exception
Formal acceptance
is
to the
satis-
62(1
Fed.
McFarlane
vs.
Wadhams, 165
987.
o*
Hart
vs.
520.
COMMEECIAL GUAEANTIES.
66.
83
A number of the
Federal Court.
New York
The fundamental
made
to
make
it
itself,
contract
was necessary
binding, unless
it
be
"^
The
ance is not required in the case of an absolute guaranty.
"
"
term
absolute
guaranty in this connection, bowever, means
merely where no condition of acceptance is stipulated, either
expressly or by necessary implication.
All other conditional
guaranties which do not include this particular condition, such
as a general guaranty of collectibility, will be considered " absolute " in the sens the
In one of the
earlier
term
is used.
New York
vited the plaintiff to sell goods to the principal with the promise
to guarantee
it
elsewhere.
payment.
notice of acceptance
many
The holding in
York and
wbom
lie
it
was
There
is
like a condition, or
him
even a request,
tiiat
is
no
212.
acceptance
communicated
to
the
6=
Union Bank
vs. Coster, 3
N. Y.
84
principle
' '
notice
was an
essential
"''
is
no
upon
is
a mere offer to
66
See
82,
also
the letter of
was "We
credit
Bank
vs.
W.
867;
Am. Exchange
121
Seaverns,
111.
App.
in pursuance of
W.
says:
it;
it
made
was not a
condition
of
to
liability,
neither are
deemed requisite."
The following oases are in accord
with the New York doctrine: Powers vs. Bumcratz, 12 O. S. 273 Wise
;
vs.
M N.
E.
Jeffreys,
W.
Nat.
17'5;
966;
Go.
Sneed
vs.
Miami Ojunty
Bank vs. Goldberg, 133 Wis.
113 N.W. 391; King vs. Bat-
13 R. I. 117; J. S. Rowell
Mfg. Co. vs. Isaacs, 128 S. W. 760;
144 Mo. App. 58; J. R. Watkins
Medical 'Co. vs. McCall, 133 N. W.
Draper, 12
Moriell, 110 N.
terson,
vs.
86; 21 S. D. 159;
COMMEEOIALi GUARANTIES.
84a
a guarantor
to enable
not be urged at
all if
him
mutual assent
is
need
of the contract.
In Massachusetts,
is
it
know whether a
is,
contract has
posal,
withdraw the guaranty even though the creditor has acted upon
Thus, it is said: "The language relied on was an offer to
it.
It
is
and the
bound when he sees that action has
been taken on the faith of his offer. But if the act is of such a
kind that knowledge of it will not come quickly to the promisor,
the promisee is bound to give him notice of his acceptanoe
offer,
is
In such a case
it is
may know
it,
isor.'"^
Knowlton, J., in Biatop vs.
161. Mass. 499; 37 N. E. 665;
Lascelles vs. Clark, 204 Mass. 362;
6'
Eaton,
90 N.
Mfg.
E.
Co.
Cumberland Glass
Wheaton, 208 Mass.
875;
vs.
425; 94 N. E. 803.
84&
Where
is
executed contemporaneous-
Where a guarantee
is
for, the
transaction
not required."^"
is
by the
accepted
is
Where
it
been
guarantor this
to the
moving
directly
show
sufficient to
is
The
number of
rule of a large
jurisdictions
makes lack of
which the
610;
161 Ind.
Contra American
Agricultural
Chem. Co. vs. Elsworth, 83 A. 546;
109 Me. 105.
STS
ney Shoe
Civ. App.
C<>.
Mercantile
Co.,
vs.
127 S.
Haggarty, 43
Tfex.
W.
Hill
114 S.
33-5;
Eotan Grocery
Co.
vs.
W.
1080
3'86;
(Tex.)
vs. Clark.
J.
L.
6Q S. E.
57 So. 701;
175
3'93.
Contri
Acme
vs.
Eeed,
197 Pa. St. 3!99; 47 Atl. 206; American Agricultural Ohem. 'Co. vs. Ellsworth, 83 A. 5^6; 107 Me. 105.
e7c
Emerson
120 N.
W.
Mf-j.
1094;
1!>
rest."*
^Acme Mfg.
22'3;
Winnebago
Paper
Mills
vs.
28;
Mfg. Oo.
These
Court except as
Buckingham
vs.
Murray,
W.
997; Woodstock
Bank
Xoyes
vs.
60;
11
South. 566;
vs.
Dow-
vs. Nichols,
Jones, 70 Miss.
Tuckerman
vs.
COMMEKCIAL, GUARANTIES.
that
stipulation
guarantor shall
the
85
receive
notice
of
The right
ance."^
Knowledge
to notice
is
will
equivalent
operate as
sufficient notice if
67.
waived by a
in-
volves no duty on the part of the creditor to give notice of default to the guarantor.
The
liability of the
unless notice
is
such condition
incorporated
is
is
in
The law
agreement.
his
guarantor.
French, 7 Me.
33
111.
stadt,
No
16
App. 601
Meyer
111. App. 3i46.
Ruh-
vs.
to require
anee.
made
these
69
174.
is
in
is
is
not required
for
definite
Waidsworth
^Taylor
112; Ind.
203;
18
(Del.)
of its accept-
Kriight
&
Jillson
76 N. E. 743.
vs. Allen,
Contra
Houst.
if
vs.
distinction
no notice
Stewart
vs.
8 G-ratt.
McClung,
24.
Gamage
56i5
114.
"i 'Cumberland
Glass
M%.
Co.
In this case
my
But
see
Wright
vs.
vs.
the letter
reads:
Griffith,
"Please
let
121
86
maker did
the
if
not,
and
In this
case, there
The
maker
of the note
By
at the
maker and
The nature of
prior indorser.
But
"
by the
the
the
characteir of the
named
anty of
at the specified
'
the
maker
'
to
imported an under-
its
terms,
that
is,
at maturity,
the
The non-payment
made
at
absolute the
Such was
payment of an
obligation which was in itself absolute and perfect and certain
as respects the sum to be paid, and the time when payment
should be madej
all of which was known ,to the guarantor,
and appears upon the face of the contract.
" The liability of the guarantor thus becoming absolute
by the
non-payment of the note, the neglect of the holder to pursue
such remedies as he might have against the maker (the guarthe effect of the unqualified guaranty of the
COMMERCIAL, GUAKAJSTTIES.
87
antor not having required him to act) would not discharge the
such
"^
'
effect.
'
'1 Hungerford
vs.
O'Brien,
37
Minn. 306; 34 N. W. 161.
See also Deck vs. Works, 57 How.
is
ize
See
Pr. 292.
promissory note, however, the liability does not become absolute, unless
charge.
him
whom
That
is
it is
is
given
intended to
in-
to inflict
consequences
of
also
Bank
100;
Dickerson
vs.
Penny
574;
vs.
60
N. H.
Derrickson,
39
vs.
271;
Clay
vs.
549; Castle
9
vs.
Edgerton, 19 0. S.
Rickly, 44 0. S. 490;
N. E. 136; Walton
M. & W. 72
First
vs. Mascall, 13
Bank
vs. Babcock,
94 Cal. 96; 29 Pac. 415; Hoover vs.
McCormick, 84 Wis. 215; 54 N. W.
505; Wright vs. Shorter, 56 Ga. 72;
Roberts vs. Hawkins, 70 Mich. 566;
38 N. W. 575; Holmes vs. Preston,
;
71 Miss. 541;
tham
W.
vs.
X.
Md. 162; 26
it is
Sinclair,
but
his
Braddock
vs.
423;
S.
Wertheimer, 68 Ark.
761; Stewart vs.
Sharp County Bank, 71 Ark. 585;
76 S. W. 1064; Stewart vs. Knight
59
W.
& Jellson Co., 16 Ind. 498; Pleasantville Loan Society vs. Moore, 70
P.
and can
tion
for
whose con-
88
results to the
notice, at the
sh'own.
is
guaisantor of definite
default to the
payment
extent of his
is
damage
resulting
from lack
of
and gives
sary to
is
not neces-
But
if
loss
de-
fense/^
43 Tex. Civ. App.
vs.
Laursen,
135
335;
N.
W.
McConnon
213;
22
N. D. 604.
Fuller vs.
McLean
21;
Me. 366
8 Pick. 477;
141
contract
er's
is
solvency,
is
maker."
72
of
payment or performance to
(LS
a,
12
Hawes, 14
Iowa 87;
Iowa 400.
Sabin vs.
Picket vs.
89
COilMEECIAi GUARANTIES.
is
al-
and without
may
he damaged by
set-off.
it
is
foot-
ing with other contracts where the right of action accrues upon
tlie
party."
"
68.
(1)
73
Vinal
The
Richardson, 13 Allen
vs.
rule
stated
the text
in
59 N. E. 440.
In the latter
was
months had
which the
property.
necersary.
532.
is
is
paid,
if
the guarantor,
in violation
slumbered because
he supposed that in the absence of
a demand by the creditor the act
guaranteed had been performed by
the principal debtor and has suf-
to
should be p'vid."
land Glass Mfg.
et al.,
Co.
vs.
Wheaton
90
may
he
damaged
in
showing himself
notice.
It is like
(2)
is
necessary
where the
facts
itor's option.
ment
at
If
maturity
it is
is
it is
If
it is
is
basis-
of
the
is
it is
clear that
the necessary steps to find out the debtor's condition, and tht
same
result follows
test of insolvency,
where
deemed the
sole
contract,''*
''Ante
Sec. 63.
diflSculty,
and
notice, however,
made dependent
rests peculiar-
antee, or depends
means
of information, the guarantor must
take notice at his peril. The application of the rule requiring demand
and notice, founded on the reasons
in legal contemplation, equal
pro
above mentioned,
is
cleared of all
in case
of the
guaranty
the liability
is
made
dependent, rests
and the period of their termination are of necessity peculiarly within his knowlBashford
vs.
ts.
edge."
Shaw, 4 O.
S.
267.
Walker, 31
111.
Wend.
103.
Wadsworth,
if
COMMERCIAL GUARANTIES.
The same
91
demand/'
able on
(3)
ties of
of credit.
It
is
a general letter
is
ad-
The
number of
decisions are to be
notice of default
may
know
In
the
amount nor
all cases
is
debt.''*
give such notice within a reasonable time will only discharge the
Waiton
Nelson
Douglas
But
60.
f'
Ante
N. E. 504.
^9 "The guarantor is entitled to
a notice, but cannot defend himself
for
THE
92
LAW
OF
SURETYSHIP
'""
tice 79b
69.
may amount
may
be sev-
in
all
eral liability.
more
persons,
it
and such
and
several,
the rule.'"
is
his
obligation."
W.
204
111.
1046; Swisher
203; 68 N. E.
517; Heeringa vs. Ortlepp, 167 IlL
App. 586; Mamerow vs. National
Lead Co., 206 111. 626; 69 N. E.
504.
But see Pfaelzer vs. Kau, 207
HI. 116; 69 N. E. 914; Davis vs.
Wells Fargo & Co., 104 U. S. 159;.
Booth vs. Irving Nat. Exoh. Bank,
116 Md. 668; 82 Atl. 652.
7911 Lemmert vs. Guthrie
Brothers,
69 Neb. 499; 95. N. W. 1046.
vs. Deering,
7*
Co.,
Mamerow
206
Graham
111.
vs.
National Lead
626; 69 N. E. 604;
Middleby, 185i Mass.
vs.
34; 70 N. E. 416.
80
Tond-du-Lac
Harrow
Co.
vs.
is
New
vs.
vs.
Hawkins
COMMERCIAL GUAEANTIES.
Guaranty covers
70.
guarantor
of the default
interest.
is liable
by
93
thei principal.*^
inteo-est increases
the amount
is justified
named
as the
may
guarantor
and so avoid
Interest is
all
is
Also the
liable for.
at maturity
to fix the
and no demand
is
made upon
upon them
wiW amount
demand
to a
computed.**
vs.
Ball's
Burgoyne
vs.
Co., 5 0. S. 586.
The estate
N. E. 310.
In Ohio the Code now provides
that "When two or more persons
are indebted in a joint contract, or
upon a judgment founded on it,
and either of them dies, his estate
shall be liable therefor as if the
contract had been joint and several,
or as if the judgment had been
against himself alone." Gen. Code.
See. 10733.
This statute abrogates
the common law rule and similar
provisions have been enacted by the
legislatures of nearly all the States.
.Some modifications of the common
law rule were made by courts of
equity in cases where the deceased
joint obligor, participated in the
benefits of the contract, such as a
joint maker of a promissory note,
where the consideration was for the
joint use and benefit of the makers.
1191.
field
But
see
Building
McMullen
& Loan
vs.
Win-
Assoc.,
64
94
unliquidated damages
notice or
amount
71.
demand, and
is
considered
not
him contingently
for
as in default until
**"
until then.
Eevooation of guaranty.
contract of guaranty which is merely executory,
may
be
guaranty
upon
it.
may
form of an
make
bound either
may
Where the
withdraw.*'
*
can not be revoked.
make
the
make
is
divisible,
may
Where
be revoked, after
a breach, as to
any
A
A
all
cases
become instantly
loss.
operative.
may
have
guaranty,
by one
hold-
Co.,
s?
LaRose
vs.
1
Logansport Bank,
N. E. 805; Hunt vs.
COMMEKCIAL GUAEANTIBS.
ing a position, of trust
mil
cover damages to
95
tlie
creditor for
The
death, of the
guaranty in
cases
all
if living
have
The death
revocation, but
to the creditor.
Roberts, 45 N. Y. 691;
Emery
vs.
136; Metropolitan
Co. vs. Morris, 3!)
Vt. 393; Tischler vs. Hofheimer, 83
Va. 35: 4 S. E. 370; Coulthart vs.
Clementson, 5 Q. B. Div. 412; Mam-
88;
28
S.
E.
Washing Machine
erow
vs.
111.
626; 69 N. E. 504.
88 Bostwick vs. Van Voorhis, 91
N. Y. 353 Keilly vs. Dodge, 131 N.
Y. 153; 29 N. E. 1011; LeRose vs.
Logansport Nat. Bank, 102 Ind. 332
1 N. E. 805; Vidi vs. United SuretyCo., 140 N. Y. S. 612.
89 Jordan vs. Dobbins, 122 Mass.
168; Hvland vs. Habich, 150 Mass.
112; 22 N. E. 765; Valentine vs.
Donohoe-Kelly Banking Co., 133
Cal. 191; 65 Pac. 381. /
Contra Bradbury vs. Morgan, 1
Hurl. & Colt. 249.
See also Broome vs. The United
States, 15 How. 143; Fewlass vs.
Keeshan, 88 Fed. Rep. 573; McClaaky vs. Barr, 79 Fed. Rep. 408.
Lloyds vs. Harper, 16 Ch. Div.
290, Lush, L. J.: "Now it will be
found, I think, that guarantees may,
for the purpose of this case, be divided into two classes, the one in
which the consideration is entire,
and the other in which the consideration is fragmentary, supplied from
time to time, and therefore divisible.
An instance of the first is
;
....
96
Jordan
v.
Dobbins,
R.
I.
Rich.
U.
S.
^Knotts
Eq.
122
vs.
(S.
C.)
vs.
Mass.
Hunt, 16
obligors
will
Breckefct vs.
obligors.
10
Pond
vs.
143;
operate
joint
in
this
case
was
and several.
But
obligation
rule
Addyman,
Div. 783.
Q. B.
The obligation
Butler,
The death
continue until a
shall
is received.''^
13 Atl. 115.
148;
Contra
Bank
it
is
is
joint
applied.
and
the
same
CHAPTER
IV.
SURETYSHIP DEFENSES
Material Alteration of Principal Contract.
Same Subject Continued.
Same Subject Continued.
Alteration of Principal Contract by the addition of new parties.
Alteration of Principal Contract by a, change in the duties of
Sec.
'
the principal.
79a. Building Contracts.
7'6b.
Change
of parties.
Sec.
fiec.
97.
Sec.
98.
Sec.
99.
Guarantor,
Sec. 100.
Sec.
101.
Sec. 102.
Whatever
Sec. 103.
Sec. 104.
Same Subject
Same Subject
97
98
Sc. 105.
Same
Sec. 106.
Creditor.
Sec. 107.
Sec. 108.
tract.
Sec. 109.
Sec. 110.
creditor.
Sec. 114.
Sec. 115.
116.
Sec. 117.
Sec. 118.
Sec. 119.
|72.
the
112.
Sec. 113.
Sec.
of
Sec. 111.
Sec.
obliga-
imposed.
effect
is
Any
bound
to
dp
said to result
from
either one of
This
is
two reasons:
W.
Hamm
209;
vs. Paean, 128 P.
141; 36 Okl. 223.
Under the Uniform Negotiable
Instrument Codes what are material
alterations and the effect thereof
are controlled largely bv the statute
as adopted in each' state, and the
decisions thereunder, which are in
state of flux.
critical
examina-
and
iSiecs.
7,
post, See.
8,
9,
91a.
10,
and notes,
99
STIRETTSHIP DEFENSES.
(1) It
The
is
addition, of
the principal
may
be the
new
The
of the guaranty.
The
(2)
an end to and a
new one
The
substituted.
by implica-
any
tion
upon a substituted
liability
although the
contract,
which to
rest the
new
that a
first
ground upon
is a satisfactory
The
suggestion, however,
reason given.
the risk of the promisor has been increased or not, if the promisor is to
ended.
73.
new
liabilities
obliga-
new
must
stituted contract,
solely
upon
rest
this ground.
yeal-
100
twenty-eight cows for one part of the year and thirty-two for
those persons
to
bind J by
who were
it,
parties to
If
it.
it
Whitdier
Barn.
vs.
James
Hall,
&
actuated."
Bethune vs. Dozier, 10
Ga. 23.5.
This rule is somewhat modified in
states where the distinction between
the individual and the compensated
corporate
surety
prevails.
See
Young
vs.
American Bonding
Oo.,
an insurance against
underwritten for a money con-
essentially
risk,
a company can be
reliefved
from
its
....
101
STTEETTSHIP DEFENSES.
If the alteration consists in a change in the' place of payment it adds an obligation to pay at a place not stipulated in
the original
obligation to
alteration
upon such
The changing
liable
substituted contract^
is
it
hasten or
To hold
other-
paper as a
medium
of commercial transactions.
It is of the
vs.
484.
S.
(Ky.) 273;
Miss.
.i42.
MeEaven
THE LAW
102
'op
suretyship.
Pasting to the original contract a memorandum of an independent collateral agreement between the parties, which is
Same
74.
subject continued.
The same
effect will
gotiable paper, although the alteration takes place before delivery of the
paper
to the
is,
contract
to
it
an implied authority
the transaction
his
'
from claim-
it
other to be misled.
unfilled,
5a United
States Glass Co. vs.
Mathews, 80 Fed. 828.
See also
Cambridge Savings Bank vs. Hyde,
Mass. 77.
Jones vs. Bangs, 40 O. S. 139
McGrath vs. 'Clark, 96 N. Y. 34;
Eh'aper vs. Wood, 112 Mass. 315;
Bradley vs. Mann, 37 Mich, li; Aetna
Niat. Bank vs. Winchester, 43 Conn.
131
6
391.
This
bona
is
fide
E. 1031.
But
Bank
194 N. Y. 461'; 87 N. E.
770, where it is held that by virtue
of the negotiable instruments code
payment of p, note which has been
altered may be enforced by a bona
fide holder according to its original
vs. Lester,
tenor.
' It is held that the delivery of
a
bond by the surety to the principal
establishes the relations of agency
between these parties, and the surety will be bound by any alteration
made by the principal before delivery, not communicated to or known
by the obligee, and tbat having thus
held out the principal as his agent,
the surety is estopped from claiming
that he has exceeded his authority
as such agent, as against one who
103
SURETYSHIP DEFENSES.
paper
is
all
There
tion
has relied upon his apparent authority, and that the surety should not
be permitted to transfer the burdens
resulting from misplaced confidence
in
his
agents.
King County
vs.
loss,
104
representatives
guarantor.
Any
will
is
surety or
cident or the act of a stranger will not effect the liability of the
promisor."
The question
is
somewhat mooted in
this
country whether
ineffective
paper as
if
when
the
it
is
difficult
accident or mistake,
to
find
made with
intent,
any
distinction in
intent to defraud
and
If the alteration
is
3J4
gle,
Anderson
;
Bellenjcer, 87 Ala.
State vs. McGoni353; 13 S. W. 758;
vs.
6 South. 82
101
Murray
Mo.
Graham, 29 Iowa, 520;
vs.
9 Neb.
Taylor, 12
man
vs.
IN. W.
instrument.^'980
Taylor
vs.
King, 54 0.
S.
273
43 N. E.
683.
105
SURETYSHIP DEFENSES.
Such a procedure
is
more
law
and then rely upon
the alteration
material alteration,
may
be disregarded.^^
Alteration of principal contract
75.
parties.
promisor.
new party
is
i2Moye
12;
vs.
Heard
Slhi'pp's
Adm.
Suggett's
vs.
ft
B.
vs.
Eichberg, 42 111. App. 376;
Keller vs. Rock Island State Bank,
2921 111. o'53;, 127 N. E. ft4; Brown
vs. Johnson Bros., 127 Ala. 292; 28
So. oTO; Ranikiin vs. Tygard, IftS Fed.
795; Swank vs. Kanifman, 255 Pa.
31; 99 AtT. 1000; L. R. A. 1917D,
826; Bank of Commwce vs. Webster
(Okla.), 172 Pac. 942; L. R. A. 191SF,
696, and note at page CgiS, "Adding
of another party to negotiable instrument after its execution and
delivery as a. material alteration."
In, Brownell vs. Winnie, 29 N. Y.
400, it waa held that the addition
of a new name as maker upon a
is
but one
diangiei in
any way
106
76.
by a change in the
duties
makers.
i^Mersman
U. S.
McOaug'h.ey VB.
N. Y. SS; Miller vs. FinI'ey, 261 Mich. 24'9; iStone vs. White,
8 Gray 3S9; State vs. Dunn, 11 La.
An. 549; Ex Parte .Yates, 2 DeG.
139; SI S.
iSmith, 27
&
'Ct.
'65;
Standard Underground
Stone, 94 N. Y. S. 383;
Hoilthouse vs. State, BT N. E. 130;
149 Ind.
App. 1718'; Barnegi vs.
McKerneni, 31 Neb. 165; Taylor vs.
Acorn (Ind. Ter.), 4i5' S. W. 130;
Rndulph vs. Brewer, 96 Ala. 189;
vs.
II So. 314.
Goodwdn,
Bank
vs.
Weidenbeck, 87 Fed.
271.
delivery
and while
principal.
31 Vt. 26.
is
sometimes
ui^ed that
if
Instruments Act
instrument
"When an
materially
altered
and
provides:
has
is
in
been
the
may
principal.
191;
J.
Oible Co.
by the
of the instrument,
in the hands, of the
The original surety is
99.
vs. Warner, 118 N.
1047; 17 N. D. 594.
But see Hess vs. Schnaffner, 139
it is
i*<Hilliboe
W.
S.
W.
1024.
/
107
SURETYSHIP DEFENSES.
will
such contract.^*'
parties to
the
If
the
substi-
tute other duties for the principal, although the general char-
employment
acter of the
is
Where
the sureties
teller.^'
Again,
up
at the
received.
to be discharged
as
when
by a con-
latter should
credit of six
months
credit of less or
"Pott &
more than
Md. 535; 36
'
&
J.
'
Packing Co.
AT>p. 1;
,
&
Co.
m5
S3
vs.
S.
W.
,
^^
vs. Blair, 96
.
City of
786; Kirschbaum
. a T,
^j.
r.
E.
Va. 95; 34 S.
New York
vs.
Clark,
, TTT.^
Co. vs. Radke, 136 Wis. 49i5; 118
82 N. Y.
S.
/-.
W.
N.
vs.
185;
Germania Fire
Ins. Co.
78 N. E.
-.-
vs. Boyette,
74
Ark. 600;
Fidelity
Mutual
Life
Assoc,
ve.
W.
429.
six months.'^
the requirements changed
such aa were essential
ingredients in the contract of surety,
Amithe surety is not released.
cable, etc., Ins. Co. vs. Sedgwick,
HO Mass. 163; Harper vs. National
j^.^^ j^^^_ ^^^ gg
2^^. j^^^^.
ford Fire Ins. Co. vs. Casey, 196
Mo. App. 291, 298; 191 S. W'. 1072.
iBjSTational
Mechanics Bankiiv^
^gg_ ^g_ Conkling, 90 N. Y. 116Kellogg vs. Scott, 58 N. J. Eq. 344
Where
^ere
not
44
Atl.
190.
But
see
^g_
l^J\s^'^ ct'm'^'''
^n Leeds vs. Dunn, 10 N. Y. 469;
Henderson vs. Marvin, 31 Barb. 297;
Stewart vs. Rannev, 26 How. Pr.
279; 68 0.
IS.
;;
107a
An
Where new
duties
is
made.^*"
by subsequent
officers
officer
have been
held to be discharged.^"
The
quality
in
witTiout
the
of
obligation to
purchase so
as
to
relieve
guarantor of his
the
in good order.""
Building contracts.
76a.
The
rule that
releases
by the application
Grant
IS
vs.
Smith, 46 N. Y. 93.
In Evans
vs.
Contra
Good
i^*
Lake
vs.
36 Atl. 437;
R. R.
cash.
had knowledge
agent was
selling
on
credit,
and
in
Roads
12.S;
i"
vs.
SS
Star R.
\-\\
.S
Miller
vs.
680; Denio
&
Stewart,
vs. State,
State of Missouri
Co.
vs.
W.
79'5,
see
vpihere
it
is
vs.
Wheat,
60 Miss. 949;
Bensinger
But
L. Co., 77 Ark.
9.m.
to be
a,
Machinery
25 Ind.
1076
SURETYSHIP DEFENSES.
and
trivial,
released, even
and by extension of
no prejudice or
involve
non-consenting surety.
the building
this principle,
their
as
changes which
contractor,
the
loss to
by the
to insure
benefit of himself
and
interest
a mortgagee,
of
was
it
was not
held,
no
fire
having
released,-'"'
So
also,
in
tlie
business of suretyship.
is
thus:
"The
where changes
rule that
in a building contract
made
is
changes do not increase the risk of the surety, does not apply
Minn.
Young
vs.
376;
is
127
N.
W.
424;
American Bonding
Co.,
Hohn
vs.
164 Ind.
181
W.
S.
W.
279, 1200;
Citizens'
vs.
etc.,
494;
Illinois
vs.
Shideler,
Ark.
Trust,
&.
hire,
and
in.
163 N. W. 7.
surety for profit may not demand a release for every variance
in terms or performance of the
principal contract, Hileman & Gint
vs. Fans, 176 Iowa 644; 158 N. W.
27
597, but it may insist upon compliance with the clearly expressed
made the
116 La.
See also
Kunzweiler vs. Lehman, 70 N. Y.
19.
290; Fergus Falls vs. Illinois
ISurety Co., 112 Minn. 462; 128 N.
W.
820;
Brandup vs. Brazier,
111 Minn. 376; 127 K. W. 424;
Fransioli vs. Thompson, 55 Wash.
259; 104 P. 278; Prescotfc National
Bank vs. Head, 11 Ariz. 213; 90 P.
328.
107c
tions
discharge
it.''^*"*
The weight
any change
in the principal
whether the
plans
the
and
specifications,
surety
the
;-"''
is
include
changes which
greatly
is
may
be
made
held
to
have
this assent
by the
enlarge
the
responsibility
of
the contract.
20Rule vs. Anderson, 160 Mo.
App. 347; 142 S. W. 358. See also
Boppart vs. Surety Co., 140 Mo. App.
675; 126 S.
W.
708;
Long
vs.
Amer-
Beers
22 S.
lerton
W.
Lumber
Mo.
American
77
Baptist Church
vs.
vs.
997;
was
it
ty.
20^
Drumheller
ty Co., 30
Daly
vs.
Lumber
Lennan
6 N. E.
70i4;
vs.
W.
100 X.
556; Mc-
Wellington, 48 Kas.
75'6
30 P. 183;
115 Md. 535; 81 Atl. 1; Woodruff vs. Sthultz, 155 Mich. 11; 118
vs. Gillard,
Greg. 58
as,
vis.
86 P. 333
vs.
;
Book, 48
Blauvelt
46' Atl.
.vs.
416;
lOld
SURETYSHIP DEFENSES.
a one-story building,
was
made
Alterations
it
and
was held
released.^""
may
generally be
made without
If
it,
of completion in a case
given for their benefit, even though the changes are of such
is
Cowls
Atl. 348;
Wash. 120;
32
Co.,
Kretachmar
396; 84 N.
W.
W.
&
G.
1032;
108
Wis.
387; Fidelity
Robertson,
vs.
72 P.
BruaB,
vs.
Oo. vs.
S.
U. S. F.
vs.
136
Oo., 98
& Deposit
Ala.
Oo.
34
United
379;
vs.
American
W.
119 N.
sop
work
for public
form
is
intended to per-
"performance
of
the
contract,
and
whom
Smith Ice
Ark. 287; 50
S. W. 508.
See also Barrett-Hicks
Co. vs. Glas, 9 Cal. App. 491; 99
P. 856;
Co., 6
Swasey
App. 536;
Bums
vs.
Doyle, 88 Mo.
vs. Fidelity
& De-
posit Co.,
W.
518;
49;
House
Civ.
States,
729.
ITort
the
contractor
tion of work.
In
its
may
obtain
second aspect
separate
and
distinct
107e
76b.
manner
of payment.
of the
amount earned,
until the
work
by the
completed", are
is
the surety
"The
is released.
rule rests
the
one
that such a
is
is
thougli
without the
knowledge or consent of a surety,
where the general nature of the
work and materials remains the
same, will not release the surety
from liability to persons who supply
'
Chaffee vs. U. S. F.
Dewey
Conn
vs.
&
G. Co., 128'
State, 91 Ind.
vs. State,
25 N. E. 443
Snyder vs. Hazard,
;
53
App. Div
County
Co.
Glenn
of
em
80 P.
518
vs.
Fidelity
335;
vs.
National Surety
112 P. 517
Wash. 471;
61
Co.,
Black
snfc.Tas.
struction
vs. Jones,
& Deposit
40 Southern
London Dock
Calvert
Keen
vs.
(Eng.
vs.
Title
Fed. 570;
Co.,
23 N. D. 492;
McKnight
S.
W. 977
69; 121
vs.
137 N.
Lange Mfg.
W.
41;
Co.,
l.>5
vs.
Bank
41.5;
Co.,
100 N.
146 Cal
First National
W. 550; U. S. F. & G
Co. vs Omaha Building & Construe
tion Co., 116 Fed. 145; U. S. F. &
560;
in
contractor,
173;
work
^'"'
'
premature payments
Fed. 918;
finish the
'
Atl. ,307;
Queal
&
Conn. 495; 37
W. 568; McNally
Mercantile Trust Co., 204 Pa.
596; 54 Atl. 360.
117 la. 748; 90 N.
SURETYSHIP DEFENSES.
tliat
may
the condition
107/
In other eases
to the
the
it is
discharged merely
is
manner
of payment.^"""
the claims,
for labor
bills
persons holding
to the
was held
it
Where
sum
certain
is
now due
a statement
will justify
by the architect
the
to
payment by the
is
that a
effect
owner.^""
that the
sums thereafter
and so not
Fidelity
ertson,
& Deposit
34 Southern
Housel, 115
Civ. App.
451; 98
S.
W.
& Deposit
Co.,
145
vs.
Ala.
6iSi9;
Hand Mfg.
But
see
146 Cal.
vs. Jones,
Monro
National
SHirety Oo., 4T Wash. 488; 92 P.
290; Marree vs. Ingle, 69 Ark. 126;
61 S.
W.
vs.
369.
vs.
S.
Kcra-
W.
993.
Co.
111.
80;
Lumber
124
la.
Co.
vs.
Peterson,
W. 550.
^"P Museum
Fine
of
59\3i;
100 N.
American Bonding
vs.
124;
Wehrung
Indemnity
241; 78 P. 734.
Gleim
518; 80 P. 696;
229.
St.
N. E. 904;
955.
Arts
211
vs.
Mass.
Bateman
& Deposit
Co.,
78 P. 734;
Co. vs.
Fidelity
108
77.
is
new
a distinct substitution of a
contract;
further-
Some confusion
cases
arises
by
failing
distinguish
to
between
a subsisting and
is
up
is
merely a pro-
to a certain
amount.
liable for
such ad-
The mere
as a refusal
by
21
The principal
The guarantor when
vs.
Shawneetown, 14
111.
But
see
Bank
of
New
Zealand
vs.
Wilson, 5 N. Z. L. R. S. C. 215,
where the advancements were in excess of the limit of the guaranty,
Clagett vs.
Johns.
(Md. )
68 S. E. 451.
314;
109
SURETY DEFENSES.
'
sued claimed his discharge on the ground that credit had not
been extended to the ajnount stipulated. This was held, however,
to
the creditor."'
must
guaranty
is
upon condition
When
will be discharged.
oe
the
make advance-
amount
will
whoUy discharge
the guarantor."*
Changfe of parties.
78.
contractual
the
If
relation
originally contracting,
either
of principal
new
by the
merchandise to
Thus,
contracts to seU
If
as-
Law
Lindsay
Parkinson, 5 Irish
whom B
should as-
is
Eep. 124.
tract.
vs.
while this
is
is
itor failed to
if
vs.
W.
Freeburg,
59 Minn. 230; 61 N.
Watts
&
Nor.
vs.
23'5.
Bloomington
Shuttleworth, 5 Hurl.
Kimball
iT
W.
vs.
730.
Min.
25; Carson
Co.
vs.
110
by
In neither case has the guarantor agreed
names.
is
the substitution of
new
parties.
The
be assigned
to
an
new
assume
rule that a
rests
upon the
and the same reason will discharge the surety where the
main contract
is
rela-
The claim
the promisor
is
is
where the
That
to in-
S.
W.
942.
discharged
because
the
the creditor is injurious
act
to
of
him
SUEETYSHIP
Ill
DEFEasrSES.
This -view has been generally rejected upon the ground that
a surety should not be compelled to adopt contracts merely
because they can be shown to be beneficial to him, and
upon the
tody of
tion.^*
is
or
may
be injurious to the
Law
obligation.
is
common
sense,
and
if
the change
188
28
2 Keen
Dock
"The argument,
however, that tlje advances beyond
the stipulations of the contract, were
Co.,
calculated
to
-eSS.
be
benficial
to
the
can be of no avail. In
almost every case where the surety
sureties,
112
The customary clause in building contracts reserving a percentage of the contract price to be paid when the work is comis a stipulation which can not be waived without discharging the surety, and it is no answer to this defense that
such advancements in excess of the requirements of the eontract were beneficial to the principal, by enabling him to proceed with the work, and so beneficial to the surety.""
pleted
it
is
any further."
See also Reese vs. Unitel States,
9 Wall. 13, Field, J. (p. 21) : "Any
change in the contract, on which
they are sureties, made by the principal parties to it without their assent, discharges them, and for obvious reasons. When the change is
made they
are not bound by the contract in its original form, for that
has ceased to exist. They are not
bound by the contract in its altered
form, for to that they have never
assented.
Nor does it matter how
trivial the change, or even that it
may be of advantage of the sureties.
They have a right to stand upon the
very terms of their undertaking."
See also John A. Tolman 'Oo. vs.
Hunter, 113 Mo. App. 671'; S8 S.
W. 636.
Martin vs. Thomas, 24 How. (U.
S.)
315; Chester vs. Leonard, 68
Conn. 49i}; 37 Atl. 397; Simonson
vs. Grant, 36 Minn. 439; 31 N. W.
861; Evan vs. Morton, 6S Tex. 259;
Post Adm. vs. Losey, 111 Ind. 74;
12 N. E. 121; Snodgrass vs. Shader,
168 S. W. 567; Zeigler vs. Hallahan, 13 1 Fed. 20i5 66
C. A. 1
Antisdel vs. Williamson, 165 N. Y.
372; 59 N. E. 207; Weiss vs. Leich-
113 N. Y.
Elmore, 136 S.
ter,
S.
W.
Mo. App.
9 N". E.
886 51 Ind. App. 19 Bauschard Co.
vs. Fidelity & Casualty lOo., 21 Pa.
646;
;
Hubbard
vs.
9; 164
Eeilly,
;
113
SURETYSHIP DEFENSES.
made
is
to
not.
surety will
him.^
80.
upon
Thus
a Surety
of a
to
Bank
in-
upon
duties
its
private banking
an Insurance
so
Sanderson
&
are to
go to show that
we
be
R.,
vs.
'That
Hall,
into
L.
Pollock, B.
merged by incorporation
au-
Aston,
surety's
bond,
is
"The
vs.
company
Trust Co.
cited
case (which
made part
of his contract.
But
by the change."
si Grocers' Bank vs. Kingman, 16
Crray 473. See also Chandler Lum"^er Co. vs. Radke, 156 Wis. 495;
US
N. W. 1&5.
"''
'^""^"''
8/mo'''U^'''"''''^''
32 Blair vs. Insurance Co., 10 Mo.
5^0.
In,
114
sureties
all liabili-
81.
that the
substitution of a
the
rule.
agreement
or
contract
between
the
original
Guarantor,
if
Bensinger
33
main contract
such e'Xtension
vs.
Wren,
100
is
Pa.
Surety or
'
500.
3-
Benjamin
vs. Hillard, 23
How.
new,
165.
35
Ranney,
erwise,
is
and legal;
and until some method can be departies, is perfectly valid
of the obligation to
ty
acceded,
necessarily
discharges
latter
must ensue."
Thomas vs. Stetson. 59 Me. 229;
SDEETYSIIIP DEFENSES.
115
mere
It is in
alteration.
all
Guarantor
is
The
is
more than
and in
an equity inherent in
all
to
the
This right to
ship.
is
the debt at
subrogation
many
contracts of surety-
is
not,
It
however,
is
de-
the agree-
damage of
been accom-
plished.''
82.
An
less
stitution of a
new
selves so that
It will not
amount
to a sub-
they
are^
mere pas-
it
contract supported
may
by a consideration,
be disregarded by
either party.
The
it
290
vs.
Todd
Eichardson,
vs.
3S
Greenwood
Iowa
School
and remains in
^ee
its
fit
full force,
non-performance.
App.
ita
There
116
to, will
not be bind-
ing on the creditor, even though the debtor pays the amount
creates
amount
at this time.^^
Where
by
never
there
was
binding
An
^- .^"f-'
Christian
Fogg
Church, c^.
86 Ark.
110 S. W. 1042; Almon H.
Co. vs. Bartlett, 7'5 Atl. 380
vs. First
212;
,"
;^'
Me.
Trust
(
Co.,
182.
ss Halliday vs. Hart,
30 X, Y.
474; Parmelee va. Thompson, 4.i N.
Y. 58; Solary vs. Stultz, 22 Fla,
263; Jenkins vs. Clarkson, 7 0. 72;
Turnbull vs. Brock, 31 0. S. 649;
Sully vs. Childress, 106 Tenn. 109;
60 S. W. 499; Schwartz vs. Smith
128 N. Y. S. 1; Stroud vs. Thomas,
139 Cal. 274; 72 Pac. 1008.
^"*
^^ Weaver
l!"^- ^PP"
'* '^^''^'^
ff^i,"
*^^^
vs. Prebster, 37
E. 674, where
Payment on
^^f
June IS, oi one year
s mterest due
"" T""^ ^6, does not constitute a
consideration for a contract to extend the time of payment of such
note from June 26.
SURETYSHIP DEFENSES.
83.
Payment
117
tension.
The payment
the time of
eration
and
and binding
a consid-
It has
note
is
to
extend payment on a
senting sureties,
if
and that
it is
not neces-
366.
;;
118
upon
stands
the
same
The
basis.
effect of
such contract
rate,
and
it
is
to
may
new
An
upon
obligations
those already
to
the debtor.*-
is
port an extension.^^
The payment
of
interest
in
itself
extend,^*
is
amount
prima
to
facie
ment."
This seems to be the entire question, for if the promise to pay in-
289.
849;
40.
Fambro
vs.
Keith, 122 S.
W.
Scott
285.
vs.
Hall,
B.
Mon.
(Ky.)
111.
30.
Contra
^Abel
Alexander,
vs.
45
Ind. 523.
Lawrence
vs.
Thom,
vs.
Wyo 414
Thrash, 132
119
SURETYSHIP DKFENSES.
84.
An
definite time.
is
that
it
upon the
rests
agreement
If
it
or guarantor
is
not discharged.
agreement to extend
till
is
tainty.*"
An
no breach of the
provable.
is
'
'
*"
"some time
in the
Also an extension
summer,"
till
"after
it
85.
If the principal
time,
new note
Such a transaction
is
first
Jenkins
Clarkson, 7 0. 72;
Ward vs. Wiek, 1:7 O. S. 159; Menifee vs. Clark, 35 Ind. 304; Beach
vs. Zimmerman, 106 .Ind. 495; 7 N.
E. 237; Freeland vs. Oompton, 30
Miss. 424; Woolfolk vs. Plant, 46
Ga. 42; Morgan vs. Tliompson, 60
la. 280; 14 N. W. 306; TSiompson
vs. Robinson, 3'4 Ark. 44
Hayes vs.
Wells,- 34 Md. 512; Clark vs. Gerstley 204 U S 504
"Miller' vs. Stem, 2 Pa. 286.
41! u;.,.ii
TT-ii o (->
48
Jindley VS. Hill,
Ore. OAT
247.
vs.
"
A,,
Wis.
,r
Jf169; =^r\^"
8 N. W. 621,
^
where
'.
it
is
'
59<2;
so
52
Hamilton
vs.
Prouty, 50 Wis.
W. 669.
Manning vs. Alger, 8'5 la. 617;
W. 542; American Iron &
7
N.
'NT.
Steel
D. 218.
*6
is released.'^"
vs.
S.
contract
Mfg. Co.
vs.
Beall,
101
Md.
National Park
Bank vs. Koehler, 204 N. Y. 174; 97
N. E. 468; Smith vs. First Nat.
Bank, 5 Ga. App. 139; 62 S. E. 711;
People vs. Grant, 138 Mich. 60; 100
N. E. 1006.
It is also held that the acceptance of such note by the creditor
raises an implied agreement to extend ^'e original obligation and
*'^^* ^^^ surety not consenting is
^Ji^barl vs Gurney,
^Ht^';?^*!-.,
04 JN. Y. 467; btuart vs. Lancaster,
423;
61
Atl.
62'9;
120
but
debt
is
is
merely postponed,
till
upon
either
latter.
The creditor
even
upon
note, either
It
he
new
has been held that the execution of a note for a past due
where there
no express agreem.ent for an extendoes not preclude the creditor from surrendering the note
obligation,
sion,
if
before
is
it
is
ness.^^
is
original note are not discharged since there never was a valid
^6.
Collateral securities
payment
of,
shall
vs.
vs. Fitz, 59 N. H.
Price, 10 Ired. 385 ;
Marshall, 42 Ala.
572
Mar149
cred-
121
SUEETYSHIP DEFENSES.
itor that
the surety
curity
is
is
87.
shown,
of collateral
se-
The giving
not discharged."*
is
may
to
""^
be shown by parol."'
Sureties
by
acts
must
No
good reason
is
apparent
why any
is
No
consideration
is
individual creditor.
upon
all
The
from
act
of the Legislature
is
binding
tlie
28
vs.
German Savings
by mutual
111.
Burke
vs.
The mortgage
assent.
Yet
it is
nev-
years,
released.
Contra
Bank
=5
vs.
Muuster
&
France, 24 L. R.
Overend Gurney
&
Leinster
Ir. 82.
348;
Kane
vs.
Cortesy,
132; 2 N. E. 874.
488.
56
Morse
vs.
100 N. Y.
Huntington, 40 Vt.
THE LAW OF
122
StTEETYSHIP.
law remains in
force."
88.
Effect upon
co-surety.
ties,
cipal,
pay the
Camipbell,
G.
J.
" It
may
be
is
oflScer,
whom
the indulgence
For
extension.
this
is
a special contract
to
money
bond le avoided
There
is no inconvenience; for, when an
Act c-f Parliament alters the duties
of an officer, it will be easy to re-
as the
Law
quire
him
sc
The Leg-
liability of the
as to continue
sureties,
may be.framed
At such time
shall direct."
take place by
tJie
"the
lature."
The Courts
B. J. Lea
County Court
tered an order on its journal,
office,
and
(Tenn.)
to
make
275, the
their settlements.
It
enex-
wa
held that the sureties were not dischilged, but tile decision rests upon
SUEETYSHIP DEFESTSES.
123
An
third person
who
is
extended."*
is
upon a
If A. is surety
who
is
note,
is
to
way abridged
note, yet
no
not the one which B. secures, but his promise relates wholly to
the collateral contract
made by A. with
Giving time
89.
is
not a defense
if
the surety
is fully
indem-
nified.
(X. S.)
is
is
774, Erie, C. J.
(782)
"It
new
am
liable, jointly
is
bond.
But
contra
see
Dunn
vs.
Slee,
will,
N.
P.
under
discharge
399,
certain
the
circumstances,
surety.
This
rule,
59
the defendant
ty,
was
our mercantile law upon bills of ex<?hange. Time given to the acceptor
THE LAW OF
124
STJEETYSHIP.
Yet
tion:
material altera-
in part, in cases
against
is a
loss.
teration
and the
creditor.
has
or
sufficient to
90.
When two
more persons
or
are
who
are in the
by some subsequent
re-
make him
This form of involuntary suretyship, though imposed without the assent of the creditor, nevertheless puts upon the creditor the
obligor,
who by
agree-
obligor, will
The same
supposes he
obligors,
principle
is
and in
is
fact,
one
is
is
60
whom
Smith
Chilton vs.
vs.
Steele,
Robbins,
25 Vt, 427
4
persons
Ala-
223;
as
principal
as
Knowledge of the
ty witli
two
contracting with
Kleinhaus
vs.
667;
Tamer
493;
41
S.
vs.
669.
t
Ante
Sec. 23.
58
Pac
SUEBTYSHIP
home
to the creditor, he
125
DKFE2SrSES.
must thereafter
surety."
This rests upon the theory that the injury to the surety,
if
his rights are disregarded, is the same, -whether the creditor posr
sessed
it
suhsequently.
The
the suretyship
is
if
is
it results
from a
This
it
is
re-
by an unauthorized extension.*'
The same
where property
is
This
is
may
bring
assuming the debt of the mortgagor, and where the rule prevails that a mortgagee may sue the grantee at law, and in his
own
right,
form that
L. 348
Bank of Missouri vs. Matson, 26 Mo. 243 ; Pooley vs. HarraBl. 431; Lauman vs.
ddne, 7 El.
Nichols, 15 la. 161; Wheat vs. Ken;
&
dall, 6
N. H. 504; Guild
vs. Butler,
Rouse
Co., L. R.,
Bank
vs.
vs.
Bradford
2 Ch. (1894)
Waterman, 134
Banking
32;
111.
Home
461
29
THE LAW OF
126
But where
the holding
is
STJEETYSHIP.
is
to the mort-
no principal
liability to
Such
is
is
which the
is
collateral liability of
controlled
by State
law."^
in order to constitute
him a
equity of suretyship in favor of the grantor, at least to the extent of the value of the property.
In such a case
jiical relation
it
" While no
and
strict
teeh-
gagor and his grantee from the conveyance subject to the mort-
from
the
very close
it
is
its
value in
and
and recognized
Contra
la. 86;
It is a
an ex-
"*
127
SUEETYSI-IIP DEFENSES.
upon two pieces of propperty to secure the same debt, and the owner conveys one of
them, the remaining property constitutes a primary fund, and
Where a
is
and
will
91.
If
judgment
is
is
is
stayed, yet it is
is taken,
a transaction to
own
act,
is
by the
principal,
a party,
it is
not
thereby be affected.
If the appeal
is
the creditor and the surety are not affected, since the surety,
The
debt
creditor
till
is
relation
of
principal
debtor
was
less tlian
If that value
to the balance he
owed no duty or
he was
at the
..,,,,
beginning, the
pnncipal debtor.-
sole
^^r.
no right
of his
was
in
Mass.
Braun
vs.
339; 83 N. E. 1099;
Crew, 183 Cal. 728; 192
Pac. 531.
s'ttiOwry vs. McKinney, 68 Pa.
294. In this case, the lien covering
?^ 'T^* f
t^9Jl^ll^
^^.'J7'?
the judgment
^ judgment, and
credjtor was held under obligations to
treat the alienated property as in
^^^ situation of a surety.
128
For
the
is
is
is
Under
the defendant.
and
payment
to the creditor
would
not give to the surety the right to enforce his remedies against
the principal until the time to which the parties
tract
by their
had postponed the determination of the matter."*
con-
gaged land
to
nor
is it
Sureties
the State and the defendant, without the consent of the surety.""
91a.
in-
Under
By payment
in
is
discharged:
principal debtor.
68
Wybrants
vs.
Lutch,
24
Tex.
Rounds, 33 Me.
But see Bottfield vs. Gordon,
357.
190 Mass. 567; 77 N. E. 639.
309;
Phillips
esd Kissire
Grocery
Co.,
vs.
vs.
145
Plunkett-Jerrell
S.
W.
567;
103
Ark. 473.
An-
vs.
W.
2(50;
I.
406:
S. vs.
SURETYSHIP DEFENSES.
2.
By payment
in due course
4.
made
for the
5.
is
128a
the holder.
simple contract
payment of money.
A
1.
2.
By any
By the
act,
is
discharged
by the
Holder.
3.
4.
5.
By
By
By
a valid tender of
payment made by
a prior party.
right of recourse
lia,ble
is
ex-
pressly reserved
6.
By any
to
extend the
tlie
expressly reserved.
Accordingly
it
exclusio
alterius,
primarily liable
parties
thereon
upon
such
extension of time
is
instruments
who
no longer
As
to
are
from
availaible.*""
"8<n's
Law
128&
code discharged
recourse
Ijy
expressly reserved."'"'
is
92.
surety.
The
reciervation of the
cipal,
The
creditor
has bound himself not to proceed against the debtor until the
with the debtor, the latter impliedly assents that the surety
may have
cipal
all
and
debtor,
although
the
There
if
as prin-
must forbear
suit
may
creditor
him
therefore no alteration of
is
XoVthern
Bank
State
Grand Forks
of
vs.
Bellamy, 12.5 N.
888; 19 N. D. 50D; Morehead
Citizens Deposit Bank, 113 S.
W.
."jOI
W.
"0
vs.
70
X.
Y.
"The ground
upon which a surety is held discharged when further time for payment is given the principal debtor,
is
When
the
of tlie
when
the
parties
not va-
is
ried
surety
such
in
surety pays, he
537, Folger, J.
situation
is
case,
and the
then entitled to
and
the principal,
may in turn
who may not
new
it
was
enforce
set
up
arrange-
125,
Bland,
C.
(p.
178)
due and payable, make payment, and thus put himself in the
be of the least benefit to the principal debtor; since it leaves him en-
debt
the
is
original
implied contract,
and
enforce
the
cipal.
Where
creditor
sureties,
are
reserved
against
tirely
yet
at the
if
129
SUEBTTSHIP DEFENSES.
The remedies
Ko
reserved.
93.
It
is
suit
dies of the
The
merely in damages.
view seems to be
upon the original con-
best considered
and
tract,
is
till
fixed."
surety
is
paired, in
and
he
therefore
cannot
be
dis-
charged."
that a
J.:
"It
is
very
principal debtor
obvious
may
gain
nothing by such composition as this with his creditor; inasmuch as he is left liable to a like
proceedings against him by his
little
same
situation as if there
or
Hagey
Act
vs.
120),
him
sureties,
have
instituted,
by
voluntarily executing an agreement
which has that eflfect, there is no
legal reason
why
he should not be
held to that agreement." 'Morse
vs. Huntington, 40 Vt. 488; Mueller
vs. Dobschuetz, 89 111. 176; Dupee
vs.
867;
Blake,
Bank
148
111.
453;
35 N. E.
McKenKenworthy vs.
of Biddeford vs.
Me. 272;
125 Mass. 28; Eucker vs.
Robinson, 38 ilo. 154; Price vs.
Barker^ 4 El. & Bl. 760; Kearsley
ney,
67
Sawyer,
vs. Cole,
Homan,
16
4 H. L. C. 997
Mayor, 19 C. B. N.
S.
vs.
Boaler vs.
76; Austin
reserved,
is
was
note
not
Gustine
Contra
10 Rob.
(La.)
"1
Boultbee
''-
Robinson
408;
Blair
vs.
Union Bank,
412.
vs.
vs.
vs.
Godfrey, 2 Mich.
Reid, 20 Tex.
310;
Leslie vs.
ver vs.
Pac. 995
Tatlock
vs.
Bank
Smith, 6 Bing.
of England, 6
130
strictly
is
deprived of his right to pay the debt and to proceed against the
debtor.
is
discharged, since it
is
the creditor would violate his compact with the debtor, and the
creditor's
be released.'*
Waiver
94.
pay the
debt,
known and
the party
is
so situated that
by the
is
require a
new
or additional consideration,'"
Bing.
Allies
754;
Probyn,
vs.
Fidelity
Sup.
& Casualty
Co., 21 Pa.
Ct.' 370.
The
contrary
doctrine
is
sup-
'^
W.
060.
Fowler
vs. Brooks, 13 N. H.
240; Porter vs. Hodenpuyl, 9 Mich.
852.
1 1
553;
RoekviUe Bank
Brown
526;
App. 477;
Farmers Nat. Bank vs.
Commercial &
McCormick, 97 Md. 703 55 Atl. 439.
"Greely vs. Dow, 2 Met. 176;
Harbert vs. Dumont, 3 Ind. 346;
;
aii
Sigourney
Bank
Bank
'^
vs.
Wetherell, 6 Met.
Johnson, 9 Ala. 622;
Whitman, 66 111. 331;
vs.
vs.
vs.
Holt, 58
Conn.
Doman, 28
O. S.
20 Atl. 669.
Rindskopf
vs.
516.
^^
Bramble
vs.
Ward, 40 O.
S. 267.
;:
181
SUKETYSHIP DEFENSES.
admission of liability
that am exten-
at the
time of the making of the main contract, by the use of any ap" It is underpropriate words showing such intention thus
:
is
to
be affected by
^*
Some
antor will
But
it is
to
the creditor after the maturity of the debt, requesting that the
creditor give the debtor " a reasonable chance " to
give
to
pay and to
pay " was not a waiver or
consent to an extension.*'
95.
to
The
cred-
ship, except
451
P.
(Q. B.)
vs.
Cameron,
19i
U. C. C.
366.
Edwards
vs.
is
made the
subject of a condi-
tion, either
Coleman,
6 T. B.
Mon.
156.
sio
132
ing the creditor to sue the principal in accordance with statutory provisions, and he will not be permitted to exact from the
he himself
This view
is
own
is
will-
interests.
ia
principal.
is
may
he
by
a stat-
dent.^
till
may
barred by statute as
against the assignee, and not lose his rights against the surety
of the assignor.*'
But
see
Waughop
vs.
W.
W.
Bartlett,
Miss.
169.
Dye
Richvs. Dye, 21 0. S. 86
ards vs. The Commonwealth, 40 Pa.
83
146.
See
also
Cal. 493;
Contra
Aj^champaugh
W.
vs.
805,
Adams,
Now
set up on his own behalf.
when the statute of limitations has
run as against the principal, the
law excuses him from setting up
any meritorious defense which he
may have, and allows him to rely
upon the technical defense of the
we are not
able to see
set
why he
do
so.
Again,
it is
when
his right
133
SUEETYSHIP DEFENSES.
Where
the claim
is
the surety.
Sureties
officers,
and bonds of a
fidelity
amount
at a definite time.
Where
office
sureties'
are barred
officer,
by the same
limitaticfti.^*
It has
the creditor
who pays
this debt,
must be held
to prevent,
Payment
96.
jSTo
a promisor in suretyship
if
ship contract.
to look
lost, or, in
the multitudei of
oificial
bursement.
mediless."
Ind. 332; 6
N. E. 833.
106
84
Ranney,
has
J.:
terms
in
"The
limited
Legislature
all
actions
against the
officer
for
malfeasance and nonfeasance in office to
one year. This is done for his protection against these charges, made
li
.fi,
well
11 T,
J
j-i,
after it may
be presumed,
the
'
evidence to
refute
have been
forgotten.
^""'^
"^
*''^
*'^"''
j,"|^|*o7.'''''
S4o Marshall vs.
Hudson, 9 Yerg.
(Tenn.
57; Reeves vs. Pulliam, 7
^^xt. (Tenn.) 119. iStee "The Stat)
Review
1.
134
pro
is
discharged
tanto.*'^
Where
which
is
any
direc-
how the payment shall be applied, and no applicamade by the creditor, the law will apply the payment
The creditor may, however, make the
secured debt.*"
tions as to
tion
is
on the
not stipulate
how
it shall
be applied.
'
S5
Gould
debt."
87 Harding vs. Tifft, 75 N. Y. 461,
Rapallo, J.: "It is contended that
the right of the creditor to make
the application is subject to the
condition that such application be
not inequitable, and such is the language used in some of the authorities cited.
The equities referred to,
however, are usually equities existing between the debtor and the creditor, and I have found no case recthose
ognizing
arising
out
of
to
se-
from applying a payment thus received to the debt for which he has
no security
Tlie money
belongs to the debtor, and where the
creditor is ignorant of any duty on
the part of the debtor in respect to it,
he may receive and apply it as if no
such duty existed. If no application
had been made by either party, and
the duty were cast upon the Court
of making the proper application,
the equities of the surety would
doubtless be considered. But where
the application has been made by
the creditor, in accordance with his
apparent legal right, and in ignorance of any fact which should prevent him from making such application, I do not think he is bound to
change it on the subsequent disclosure that a third party had an interest ia having it otherwise applied
and that the debtor had violated a
duty to such third party in not directing suoh applioationu
It would create great confusion in
commercial dealing, to hold that
....
135
SOEETYSHIP DEFENSES.
eured also by sureties and others not, that the creditor
first to
may
der
made by
A
a
distinction
mere
promisor in suretyship.'"
offer
to
readiness to pay.
and demanding
refusal of a ten-
effect.""
its
acceptance.
amount
money
in lawful
upon the
will-
by accepting payment.""^
The taking of additional security
the surety
addition of a
the deposit of
of additional indemnity."^
97.
new
is
payment
surety or guar-
^Ida
Cain
vs.
la. 631.
Vogt, 116 N.
W.
786;
138
460.
Ante
Sec. 76.
136
While
all
is
must be
payment
or satisfaction
taken in payment
retention of
it
is
concerned
is
further liability.
lavsr,
not what
ob-
nothing amounts to
if that
which
it
prohibited by law, or
is
payment
the
medium
al-
liability of the
One
tution of a
remedy.*
is
required to surrender
may
be
new
note
is
&
sig-
and
vs.
Blount, 97 S.
App.
Civ.
W.
1083; 44 Tex.
162.
582.
But
tucky
see
vs.
137
SUEETTSHIP DEFENSES.
nature of the
new
the
new
note* is forged,
tke
is
void,
is
revived."
by reason of coverture or
it,
the
be
and the same rule applies where a new contract
restored to all his rights
creditor will
contract,"^
is
98.
charged with the duty of retaining such security, or maintaining such lien in the interest of the surety, and any release or
impartment of
so
Lovinger
this security as a
Bank,
Mo.
Buchanan, 87 Tenn.
45;
32
Bank
9
vs.
W. 202
S.
Emerine
vs.
36
Bank
vs.
0.
S.
Atl. 1087.
Bank
vs.
39 N. Y. 325.
But
see
La Farge
Y. 241, where
it is
vs. Herter, 9
held
"The
N.
usu-
show that an
if
a substituted contract
on account
of
is
void
contract
Dauckmeyer, 70 Mo.
App. 168; Winsted Bank vs. Webb,
97
Wis. 394.
ss Godfrey
vs.
Crisler,
121
Ind.
(Ky.)
22
11 N. H. 535.
138
meat of a
This
is
made any
contract in
from the
in-
in
it
results
The
creditor is under
upon property of a
principal,
guaranty of
collectibility,
implied 5 neither
is
but
trustee is
boimd
as
The
is
depend-
any rights or
interests of the
him
the property
is
is
Henderson
vs.
Huey, 45 Ala.
Welk
Pugh, 92 Ind.
Guild vs. Butler, 127 Mass.
Cummings vs. Little, 45 Me.
Stallings vs. Bank, 59 Ga.
122;
Bank
of
vs.
Monroe
vs. Giflford,
386;
183;
701;
71 S. E. 721.
382;
79 la.
300; 44 N.
W.
Dowd, 155 N.
307;
41;
103
Campbell
vs.
Rothu-ell,
47 L.
139
SURETYSHIP DEFENSES.
If the suretyship contract was
the principal shall
made upon
and the security heing furnished under these conditions, is afis wholly dis-
amounts
to
contract."*
is
subrogation, as distinguished
from an
if
without value.^""
It is
vs. Davis, 3
Minn.
without notice of
ence,
its exist-
its benefits
when-
Mayhew
vs.
Swanst.
" Sureties are
Orlckett, 2
Lord Eldon,
G.
curity
which
had
against the principal debtor, and
whether the surety knows the existence of those securities is immajgjjg^j
104
los
133
17.
185,
the
creditors
Polak
'Oiv-
W.
12 N.
58 Ga. 363.
" ^ioss vs. Pettingill,
^^*'^>
217;
Dimn
^"^"
"*'^-
Minn,
^'^^
^^^^^^'
"""^^'^te'l
''^^'"'
''"^
*^
property or
''''"
t^^^
ieemeA
proeprty at
lien
re-
to
have
its
face
''*'*5'
^P*"' *^^'
140
pay the debt, and to which liie surety upon recovery against
him, would be subrogated, on the ground that the creditor has
violated a vested right of the surety, and will not be permitted,
at will, to throw upon the surety, the risk of making the
balance of his securities reach far enough to cover the debt."'
But the substitution of other securities of equal value,^ or
a compromise in good faith of a disputed collateral or lien,^
will not release the sureties, for these transactions neither in-
99.
The
conse-
same care in
man would
own
interest.
must answer
will,
to-
is
its value.
is
his in-
make
title to coillateral
vs.
National Bank, 58
141
SUEETYSHIP UEEENSES.
While
this
may
it is
same
fails to
until they
become
worthless.^"
creditor,
at
the
collateral, in
The
al-
Burr
Boyer, 2 Neb. 25
State
1 0. S. 469
Bartle, 114 Mo. 276; 21
vs.
Bank
vs.
W.
S.
816;
W.
.5
CaEgl vs.
Butler, 2 Sim. & Stu. 457 Wulff vs.
Jay77 L. E. Q. B. 756 Eedlon vs.
Heath, 59 Kan. 255 52 Pac. 862.
Contra ^Philbrooks vs. McEwen,
Ark. 47;
26
S.
194;
N. Y. 121
vs.
W.
Bank
vs.
Powell,
S.
W.
1096.
29 Ind. 347.
149
taking the
Wilson, 31 Pa.
110; Fennell vs. McGowan, 58 Miss.
261; City Bank vs. Young, 43 N. H.
tions
ii^Kemmerer
154
First National
71 S. E. 109; 69
"3 Schroeppell
446
vs.
Howe
Co.
Bank
W. Va.
vs.
vs.
vs. Kittle,
171.
Shaw, 3 N. Y.
Farrington, 82
It was held
was under no obligaprotect the guarantor by
fendant as guarantor.
the
creditor
to
exercising
his
right
to
claim the
property on default.
See also Meyers vs. Fa,rmers State
Bank, 53 Neb. 824. Holding that a
failure by the creditor to seize prop-
142
The duty of
filing
creditor,
is
made
by
is
created and
the promisor
filing,
to prosecute his
own
Again, a creditor
foreclosure.
is
under no obligations
may
suffer the
same
to
The
creditor
in good faith
is
amount
if resulting
to misconduct,
injuriously to
surety.
case,
collusion witli
The prejudice
circumstances does not come from
under these
and the co-operation of the creditor in wasting
to the surety
mere
delay,
securities,
tion,
tlie
loss to the
surety."'
erty
mortgage
to
chattel
when requested
to
do so by the
Contra
Hun
iie
344.
""Sherry
Brick
J.
vs.
Lea 305;
Freehold Nat. Bank, 37 N.
vs. Miller, 7
Law, 307.
"5 Kindt's Appeal, 102 Pa. 441;
Crosby
vs.
Woodberry, 37 Col.
1;
89 Pac. 34.
143
SUKETVSIIIP DEFENSES,
And
80
100.
ation in
for
seem
acts,
must be considered
to the extent
not,
however, be consid-
an
to
exercise
active
diligence
in
is
own
Hutchinson
ii''
vs.
Ferguson
vs.
Woodwell, 107
509;
In Wilbur
Williams, 16 E. I.
242; 14 Atl. 878, the creditor received from the principal a check for
the debt and by agreement with the
bank refused to pay the cbeck, the
vs.
vs.
Collins,
144
agencies.
is
So where
upon land of the
one who. also acquired, by transfer from the principal, the land
upon which the lien rests; this being by operation of law a
merging of the lien in the fee, was held to release the surety.^^"
A further illustration of the effect of a release of security by
operation of law, arises in the case of intermediate endorsers
The suretyship
is
surety, to
whom
is
relation of parties so
in the situation of a
is
principal, and
is creditor.
Hence if the holder fail to
make demand upon the maker till the remedy is barred against
him by the Statute of Lim^itations, the recourse of the endorser
is discharged.^^"
is
no longer liable
is
liability to
from the
prior,
and discharges
intermediate parties
all
remedy
directly,
it is
by opera-
tion of law.^^^
118 Miller vs.
Dyer,
Duv. (Ky.)
W. Va.
362.
539; 3 N. E. 588.
263;
But
see
Summerhill
vs.
Trapp, 48
118
Wright
361.
121
614.
Newcomb
vs.
Ala. 363.
(Pa.)
120
vs.
Knepper,
Barr
Bos.
&
Pul. 61.
Raynor,
vs.
21
Darley, 2
145
STJEETYSHIP DEFENSES.
The discharge of
it
all
recourse
against the principal for his indemnity, will not release the
Burety.^^''
101.
The promisor in suretyship cannot claim his discharge beby the creditor of property of the
cause of a relinquishment
bound
is liable.
It
is
which another
is
surety, is
its
depositor
Wolf
vs. Price,
Doug. 160;
99 U. S. 1 ; Lackey vs.
Steere, 121 111. 598: 13 N. E. 518;
,
,
.,, Ti
Steele vs. Graves, 68 Ala. 21-; Robinson vs. Soule, 56 Miss. 549; Cochvs. Stix,
m.
Sharpe
vs.
note of
.
1
-rt
1
.
The XT
National T,
Bankruptcy
(Revised Statutes U.
A
off
Act
4.
S.,
Sec.
^
by the discharge of the prinas a bankrupt.
affected
cipal
Oomtro Calloway
vs. Snapp, 78
re McDonald, 14 N. b.
R. 477; Stull vs. Bedeo, 78 Neb.
n^. jjq j^r
ggj
The liability of a surety upon an
appeal bond is not for the debt but
c?nt"igent upon the recovery of
i?
*" judgment against the principal,
jf ^^^ principal pending the appeal
subsequently obtains a discharge in
bankruptcy, the surety on the ap-
Ky. 561; In
ifi7
1867
js released
House vs.
l^l^ ^fi^^
Sehnadig,
235 111. 301; 85 N. E.
395
123 Glazier vs. Douglass, 32 Conn.
146
If the note
surety
is
is
made payable
discharged
deposit to the
if
payment
of the
maker of the
note, after
surety.^^*
it
is
102.
Whatever
guarantor.
may
in
general be
by the
ele-
collateral promise
pay the debt of another can have any force when the debt
and since the equity of the promisor to have indemnity from the principal is cut off by this
transaction, it would be manifestly unjust to require him to
pay the debt.
The reason which underlies the rule discharging the surety
upon the release' of the principal does not apply, if the creditor,
to
section.
125
Commercial Bank
vs.
Hennin-
German Bank
vs.
UO
Home
Pa. 632;
Ba^nk vs.
New-
97 S.
W.
179;
761.
i^saLowe
vs.
90; 100 N.
W.
147
SUEETYSHIP DEFENSES.
against the surety, because the principal
ditional release,
is
tion."'
Same subject
103.
contract
12' It
release
of
serving rights
con-
is
release,
by application of a fiction,
to amount to a mere covenant not to
ment
we
strued,
sue,
right of action
upon
of the debt.
according to the
The
modem
other, that,
authorities,
eral
it.
Price vs. Barker, 4 Ellis & Blackburn 760, Coleridge, J'. (p. 776 )
"To
entitle the plaintiff to our judgment,
it must appear that the deed operated only as a covenant not to sue,
sue,
tentions
of the plaintiff
were preserved
by
reservation
the
particular
in
for
first
ques-
One,
that,
ac-
subsequent
provision
foi-
and
re-
and
should
schuetz, 89
vs.
Wend.
123.
148
is
character,
its
upon the
is
main
is illegal.^-'
principal,
and
'
by reason
fails
of a
collateral surety-
fails.^''
is
accommodation party
may
work the
obligee
makes
it
impossible
for
the
contractor to
principal
is
conclusive
in
subsequent
since
the
may have
him
set
failed to plead a
under
is
i2!>
all
Morse
vs.
931.
189.
isso People of Porta Rico vs. Title
Guaranty & Surety Co., 227 U. S.
382 Hubbard vs. Reilly, 98 N. E.
886, 51 Ind. App. Id.
;
i33
Baker
149
SUEETYSHIP DEFENSES.
Same subject
In cases where the release by operation of
law is not the result of the fault or procurement of the
104>
creditor.
with any
and disconnected
personal,
is
defense
is
this
main
contract,
has.
But
prineipal.^^'
by insanity
and before default, it is
The same
is
an infant;
up by the infant
where the infant disaffirms the eon-
Pollard;
75 Ga. 358;
La. Ann. 249;
Miller vs. Gaskins, Sm. & M. Ch.
vs.
Dlckason
vs. Bell, 13
(Miss.) 524.
135
302;
Winn
Sanford,
vs.
N.
14
E.
119,
145 Mass.
Devens, J.:
his
a surety
is
principal.
limited by that of
But to
this
there
he
has incurred or the ^
promise he has
made, the surety would not be entitled to
Whit-
vs. Carter,
vs.
441
St.
Albans Bank
vs. Dillon,
30
Thus, where
vis vs.
worth
baugh
i36
6 S.
137
Ir-
Lee
vs.
W.
665.
Yandell, 69
Tex. 34
Grove
352;
vs. Johnstone, L. R. 24
Fuller vs. Davis, 1 Gray
t'
j.\.
i
this case the principal gave
in at,his appearance on a criminal charge and afterwards became
insane and was committed to a.
lunatic asylum, and the surety upon
bond for
But
Vas
discharged.
517.
'.'* Kuns vs. Young, 34
^
Baker vs. Kennett, 54 Mo.
Pa. 60;
82.
150
tract,
to the
restored
is
ultra vires,
creditor."*'
means
or
of
is in-
is
knowing
of such infirmity in
Such a case
would be where a partner signs a firm name without authority,
the contract at the time he signs, will be liable.
promisor in suretyship
may
was induced
to
make
the contract.^*'
which he makes.
It is the falsity
creditor,
which has
entered
into
fraud upon the surety or guarantor. Thus the prinwas indebted to the creditor, and purchased with another
as guarantor, merchandise from the creditor, at a price higher
than the market price, with the understanding that the excess
above the market price, was to be applied to the dischai^e of
This arrangement, not communicated to the
the old debt.
be, are a
cipal
i3So Keokuk
County Banlc vs.
Hall, 106 Iowa .540; 82 N. W. 552.
139 Yorkshire Railway Wagon Co.
vs. Maclure, L. R.,
19 Cli. 478;
Weare vs. Sawver, 44 N. H. 198;
Mason vs. Nichols, 22 Wis. 360;
Holm
111.
295; 50
532;
Bank
139 .
vs.
W.
151
SUEETYSHIP DEFENSES.
debt
had been compromised, and that the note which the surety
signed,
was
by
an additional amount.
surety, since the
inducement
to his contract
was the
benefit
he
compromise his
debt.^*^
practiced
142
Pidcock
vs.
Bishop, 3 Barn.
&
Weed
vs.
Pendlebury
vs;
Walker, 4 Younge
143
G.
&
Ex. 424.
made
settlenient
of
nore the
the balance due upon their claims.
The ability of the debtors to meet
their notes or to indemnify the sureties was hazarded and impaired at
once by the contingency,"
But
H. 472
i**
the creditors he
ment
to
it
was within the
innocent creditors to igcomposition, and recover
fraud
the
of
power
Cr. 605.
see
Ham
473;
Haworth
94 N.
W.
Trust
tial
vs.
Grpva,
34 lud.
18;
vs.
Co.,
& Deposit
Co.
110 Va. 286;
vs.
Union Trust
67
S.
Surety
W.
bility.
ject
was not
attained.
By
reason
E.
182;
Co.,
Co.,
Ward
152 S.
W.
vs.
National
397;
167 S.
579.
In
this
sentation,
case
that
the surety
it
was
in
was
in-
payment
THE LAW OF
152
Same
106.
subject
SUEETYSflij?.
- Concealment
or non-disclosnre of facts
by
the creditor.
amount
to
The law
affect
requires good
and
it is
the
duty of the creditor to disclose information which he has concerning the principal which, if
prevent
If the creditor
is
known
to the promisor,
would
^*
is in
cir-
a relation of confi-
It is not
to deceive.^*'
1*5
Ante
Bank
Sec.
15.
5 N.
vs.
W.
men
vs. Riley,
Damon
vs.
App.
Co., 161
Div. 875.
vs.
Boddicker,
632, Bolin-
son,
ship
is,
the creditor, he
is wilful,
or with intent
is,
in dealing
with
suffer
vs.
400;
know
&
Fin.
934,
the defenders
within their
material the surety should be acquainted with, and which the defenders did not disclose, in my opinion
the concealment of those facts, the
undue concealment of those fadts,
discharges the surety; and whether
they concealed those facts from one
is
It certainly is
wholly
creditor.
If* the
may
obligations
that which
would'
shall
depen'd
was passing
make
in the
upon
mind
153
STJEETYSHIP DEFENSES.
tively fraudulent,
estab-
lishes
facte."*
The
In both cases,
and not merely
facte.
by the
asserted
parties.
sense, or
his
in
disclosed.
If the facts
were such
ought to have
as
cated,
if it
cated,
the
them,
apprehend,
material."
Lake
Contra
whom
state
how
has
account
the
was
been
in the
2 K. E. 72
ship
(1912).
Thomas, 84 Md.
Fin. 109,
vs.
that
it
quite unnecessary
is
whom
to be given,
the surety-
make any
to
such disclosure."
Fire, etc., Assurance Co. vs. Thompson, 68 Cal. 208; 9 Pac. 1; Indiana
& Ohio Live Stock Ins. Co. vs.
Bender, 32 Ind. App. 287; 69 N.
E. 691; Damon vs. Empire State
148
Xorth British
in-
quiry
in-
incident
to
contracts
of
the
suretyship,
doctrine
distinctly
this
in
rejecting
respect
an-
THE LAW
154
The
to his
which materially
to the creditor.
and materially
own
affairs,
does not
know
if
Fraud
negli-
of the
known
gence or inattention
facts
SUEETYSHIP
Ol<-
where the
facts are
known
to the cred-
by showing
and
that the creditor had no communication with the promisor, and
that no opportunity for disclosure was afforded.
The acceptance of the promise under such circumstances, is considered as
creditor can not evade his duty of disclosure, merely
was
solicited
by the
principal,
(Ky.)
23.
vs. Jones, 17 C. B. (N. S.)
482; distinguishing Hamilton vs.
Watson, and North Britisli Ins. Co.
vs. Lloyd, Ubi Supra.
In this case
150
Lee
155
SURETYSHIP DEFENSES.
In the absence of
creditor to disclose
specific inquiries
tions
under
such
in
plaintiffs
substance, that,
circumstances,
though
or not, depends, as I
on the question whether in
such a transaction as that described
in the agreement, it might or might
not naturally be expected that the
masters might have allowed a balance of this extent to accumulate,
and might have allowed the account
to stand over unsettled for so long
a time
The improbability
that anyone could suppose that sureties would have entered into such an
agreement if they had known the
truth, is so great that the jury
might well think that the plaintiffs
knew that the defendant was in ignorance of it."
See also Sooy vs. State of New
Jersey, 39 N. J. L. 13.5, where a
bond of the Treasurer of the State
think,
Wis. 698.
In Julius Winter
In
disclosure.
such case,
if
N. Y. 353; Screwmen
Tex. 168; 7 S.
W.
vs.
793;
Smith, 70
Home
55 la. 571;
Ins.
N.
W.
457
isioJda
156
107.
knowledge of the
the contract.
him such
isor's risk,
end
to the
main
contract.
who
prom-
receives advancements
from
knowledge that
surety, with
is
unworthy of
trust,
fraud as the concealment of similar facts at the time of the execution of the contract.^'^^
and
is
in-
Where
there
merchandise,
is
if the principal
of fraud,
is
,
TT c TOO
Ins. Co. vs. -n
Pauley, n.,n
170 U. S. 133;
Sherman va. Harbin, 125 Iowa 174;
100 N. W. 629; Sewell vs. Breathitt
Lodge, 150 Ky. 542; 150 S. W. 677.
-.Phillips vs. Foxall, L. R., 7
Q. B. 666; Sanderson vs. Aston, L.
R.,. 8 Exch. 73; Enright vs. Falvey,
-r
since the
(L.
R.,
Ir.
and a failure
no implied
397;
to
duty, as
Conn. Insurance
T'", ^""^""^"'cnn"
Pac.
S^?' x^^^'w^r.
vs. Wheeler,
180; 11
599; iSaint
gg ^la. 362; 10 South. 539; Rapp.
vs. Phoenix Co., 113 111. 390; Hebert
vs. Lee, 118 Tenn. 133; 101 'S. W.
'^'^^'
Hartford Ins. Co. vs. Casey,
^'^ *^- ^^P" ^'^' ''' ^^ ^'^^
""'
,,^^*,::^er':'59*^I^'35t-'
''''
15*
SUKETYSHIP DEFENSES.
the creditor
care
is
him
enabling
to
watch the
to the
promisor in
duty
to the
end
of his contract, and omitting notice to the promisor of the defaults as they oceur.^^^
known
E. A. 945
155
541;
(Minn.).
McKecknie
Atlantic
&
vs.
Ward, 58 N. Y.
Pacific Telegraph
W.
261; Charlotte K. R.
vs.
W.
Co. vs.
ley,
59
la.
591
13
Wilmington R. R. Co.
S. C. 116.
N. W. 738
vs. Ling,
18
158
default.
108.
principal.
is
which the creditor has no knowledge of the fraud, and has not
making
Two
co-surety.
name
of the
One, that
it is
made
tract is in fact
cepting.""
^'-^
35;
183;
Ante
Sec.
ContraW.
74,
T.
Note
100
Ala.
Bass, 126
Ala.
Medical
III.
8.
Ealeigh
Allgood,
vs.
People, 37
defalcations.
158
Sharp
SUBETYSHIP
159
DEFBaSrSES.
misrepresentation
made
to the promisor
good
faith, relying
The
who
upon the
creditor
surety,
is
by the principal
made by
109.
signed
upon
the
condition,
100 Stoner
Millikin,
vs.
218; Stern vs. People, 102
85
540;
Wayne Co. vs. CardTyell, 73 Ind.
555; State vs. Hewitt, 72 Mo. 603;
Veach vs. Rice, 131 U. S. 293; 9 S.
Ct. 730; Chase vs. Hawthorn, 61
Me. 505; Kansas City Terra Cotta
Lumber Co. vs. Murphy, 49 Neb. 674
68 N. W. 1030 Vass vs. Riddick, 89
N. C. 6; Loew vs. Stocker, 68 Pa, 226.
181 Marks vs. First Nat'l Bank,
79 Ala. 550; Ladd vs. Board, 80 lU.
233; Davis Co. vs. Buckles, 89 111.
237; Lucas vs. Owens, 113 Ind. 521;
16 N. E. 196; Martin vs. Campbell,
120 Mass. 126 Page vs. Krekev. 137
N. Y. 307; 33 >.'. H. 31 1; Johnston
vs. Patterson, 114 Pa. 398; 6 Atl.
746; Kulp vs. Brant, 162 Pa. 222;
29 Atl. 729 Quinn vs. Hard, 43 Vt.
De375; Gromberg vs. Fidelitv
posit Co., 139 Ala. 338; 36 'So. 622;
Hudson vs. Miles, 185 Mass. 582; 71
N. E. 63 Ripley Bldg. Co. vs. Coors,
37 Col. 78: 84 Pac. 817; Wheeler
111.
&
vs.
was
for 5,000,
Lumber Co.
Brown
U.
S. 638;
;
77; 83 Pao.
fi.
160
The
signed as co-surety.
is
is
own
had
clear
in-
neglect in
to the creditor.^"'
Against this view has been urged a somewhat technical application of the doctrine of Special Agency, with the conclusion,
is
make
delivery
strict
names of
co-obligors
such circumstance
itor
is
signers,
is
de-
good
faith.
Taylor Co. vs. King, 73
la. 153; 34 N. W. 774; McCormick
Co. vs. McKee, 51 Mich. 426; 16 N.
W. 796.
16* People vs. Bostwick, 32 N. Y.
When
co-o'nli-
161
SUEETYSHIP DEFENSES.
him
til
to
filled
^"^
delivered without
Held, not
a,
166
of
agent,
defense.
21
'
it is
ity.
hite,
wick
sell
liability
name
the
other
of
in
extent
full
may
see
which such
bind him,
taken in good
to
fit
implied,
that the
authority given
a general
letter of credit;
must
it
suffer,
prise
of
are to be considered as of
tions,
vital importance."
The
earlier cases in
instruments under
seal, delivered in
But private
to
in Ohio in 1884.
See also
Penn
Hamlett,
vs.
27
Ark. 525.
167
S.
Famulener
473;
Ehea
vs.
vs.
Anderson, 15 0.
Gibson, 10 Gratt.
fortiori
creditor.
was
filled
by the prin-
lt)2
Suretyship contracts
110.
made in
reliance
creditor.
stipulation
of
not
is
made a
promise or
will be done by
exist,
where the
made
is
in reliance
upon
the
piomise or stipulation.
In a legal
sense,
'
any intent of
event
known
is
presimied to
if the
to deceit,
altbougl^
relating
happening of such
Such
take place.
future
to
The same
of contract.""
Where
be fraudulent,
misrepresentation
amount
may
it
events
will
Parks, 76 Md.
118;
Land
Robertson
109
vs.
French
625; 62 N.
Ryan,
vs.
W.
1016.
the representation
was
104
anil
superior
of
to actionable deceit.
ity
F.
& Deposit
806.
'^
Mich.
In this case
'^o" ^=-
as to the fu-
^"^"^'l
(Md.)
Henderson, 31 0.
''^^
Bradlee, 9 Gill.
220.
Tal-
S.
&
162;
Johns.
163
SURETYSHIP DEFENSES.
this safeguard,
it
failed to do as stipulated.^'"
in-
ment."'
111.
Parol
evidence not
tains conditions
The common
is applied,
demand upon
notice of default, or
the principal
is
stipulated,^'"
The promisor
is
entitled to stand
may
suffer
it.
not, however,
itself.
This
is
as a
iTo
Welsh. H.
Giff.
I'l
Gage
vs.
Schoefield, J.
tention,
42.
ises
if,
Even
it
itself,
to
constitute
held,
fraud.
If
Municipal Council
Up. Can. (C. P.) 205.
"^ Ante Sec. 68.
"^ Ante Sec. 62i
See
also
Peters, 9
vs.
164
in the contract.
If the condition
is
not to
is
be delivered or take eifect except upon the happening of a certain event, such as, for example^ that
it is
not to be delivered or
may
such condi-
on the part of the creditor being established, the surety will not
be held unless the co-surety signs.^'*
If the condition relates to the performance of the contract,
and operates
to prevent the
first
pre-
instance, the
arise.
vs.
vs.
PowSmith
78 Tex. 53 ; 14 S. W. 245 ;
Kirkland, 81 Ala. 345; 1 South.
Cowan
77 N. C. 201;
Read vs. MeLemore, 34 Miss. 110;
Goflf vs. Bankston, 35 Miss. 518;
276;
vs. Baird,
State
14
vs. Helsley,
poration of
liability
^'
to
terms
(jf
the escrow are met. It seems, however, that some eases hold that an
made
the
whether any
bound
is
inquire
to
conditions
Nash
vs.
Fugate,
Passumpsic Bank
24 Gratt.
vs. Goss,
202
31 Vt.
315.
the bond,
names the
co-sureties
who
by a
escrow
ditions
can
not be
created
obligee can
Moss
vs.
were to sign.
I'B
Miller
Ante
vs.
Sec. 109.
Ridgely,
22
Fed,
165
SURETYSHIP DEFENSES.
Conditions imposed by law need not be set out in the conwhere the law provides that no action shall be
tract; thus
unless an order of
officer,
pay
such condi-
may
contract.^"
If the law supplies the condition that more than one surety
shall sign, a sole surety should not be held.
forming their
He
should be per-
upon public
officers per-
formity to law.^^'
It
statute for
tlie
and that
tJie
may waive
officer,
bond."^
who might not have signed except with the expectation that
risk
would be divided
ministerial officers
the
There
surety
is,
may waive
its
terms.
rests
he
understanding
the
with
that
ment,
death
of
Bank
vs.
130 S.
the
W.
S.
177
W.
23.)
See
ilo.
also
532;
vs.
924.
Sharp
vs.
S.,
4 Watts (Pa.)
plied with.
vs.
U.
21-
"8 state
with
352.
"G State
25
principal.
Eichmond,
Benton, 48 N. H. 651.
166
112.
Same subject
Where
is
cases.
the failure of
and the
although in
many
close discrimination, as a
mere
may be shown by
might be
parol,
classed, without
conditional contract.
In England, and for the most part in this country, the Statute
of Frauds
is
either modified
not
now be
expressed in writing
^'
make
it
may
be
ment of the
parties,
that agreement.
Language
Thus
is
make
a contract by
upon another
a surety
upon
a note is induced to
is surety.
He
He
in his official
i8o
Ante
isi
Where
it
When
it
became
consideration
becomes contractual
and cannot be modified by parol.
Stewart vs. Chicago Ry. Co., 141
Ind. 5.'5; 40 N. E. 67.
i82 Campbell vs. Gates, 17 Ind.
common
126.
208.
tit."
is
the
be shown by parol.^^"
authority.
may
it is
SUKETYSHIP DEI-ENSES.
Where
itor
167
cipal,
was held
it
to be
a failure of consideration.^^^
may
be
suretyship contract
An
made upon
negotiable instruments.
may
be shown to
or guarantor,
ditioned
of a writing
by
merely the
same
the
may show by
parol,
and for
that the
183
184
456.
185
Good
ough
mour
Rey
vs.
tract.
583; Brovpning et
al.,
the ordinary contract of the Indorser, has been held to restrict, in that
State, parol evidence from being re-
29 Pac.
Merritt et
vs.
while in
New York
evidence
is
sickle,
con-
60
Conn. 410; 22 Atl. 778.
A similar Statute in Pennsylvania, leaves the promisor conclusive-
Kan. 558
al. vs.
Spencer
Allerton,
from that
Ante, Sec.
8.
of see-
THE LAW OF
168
STJEETYSHIP,
although he appears
''
113.
creditor
agreed that the liability would be enforced only upon the happening of a certain contingency ^" or which is the same thing,
that the surety or guarantor
it is
by
would be released
if certain events
his
contract, the
is
not surrendered or
cancelled.
to the
isor, in reliance
upon the
is
declaration,
might
at
once surrender
securities held as
It
may
was
to subsist.
be doubted whether
it
is
53 Mo. 153
American
Von
Storch, 15 R.
Bank
Otis
41; 23 Atl.
vs. Gaines, 87
I.
Cal. 574;
Stroop
Mich. 497; 28 N.
McKenzie, 38
Farnsworth, 61
vs.
W.
534.
ist
Ante
Sec. 111.
Metznr
169
STJEETTSHlP DEFENSES.
to a risk,
Other
cases,
isor
protecting himself.
justified in prin-
ciple.""
"
is
a surety, gives
ity
And
notice
it is
paid by
suffers loss
by
it,
he
is dis'
made
loss,
is
charged.
the
by surrendering
tion, as
him
than throw
at his
it
that the surety will probably not be called upon, will not release the surety.
188
Harris
^^
Brooks, 21 Pick.
the holding in
this case was a. verbal statement by
the creditor to the surety, that he
would look to the principal for payment, and that the surety need not
This was
trouble himself about it.
considered as an exoneration of the
surety, without regard to any question of injury to him.
See also Whitaker vs. Kirby, 54
Ga. 277.
It seems, however, that
this ease is based largely, if not altogether, on the language of the
code, providing that a surety may
be discharged by any act of the creditor which "exposes him to greater
liability or increases his risk." Wilkinson v. Conley, 133 Ga. 518; 66
vs.
The basis
195.
of
S. E. 372.
Contra
vs.
Michigan
662.
188
Bank
vs.
Haskell,
51
N. H.
Ky. 431;
West
W.
W.
711.
i^o
Shaw,
King,
isi
C. J., in
Met.
Carpenter
vs.
511.
Howe Mach.
from
was
the
Co. vs.
Brubaker
principal,
without
sufficient to estop
more
the creditor
from proceeding against the surety.
170
114.
The
One
to require contribu-
relation,
thing,
^'^
equity,"
shared equally.
Such
is
tion in suretyship.^'^
It is manifest that equality cannot
is
be insured
if the creditor
from
when
his co-prom-
and generally
also at law, to
the extent that he has been deprived of his right of contribution against his co-promisor, but that the act of the creditor
promisor by releasing
him
altogether
upon
to bear additional
burdens on
^^^
common.
I's
Bracton Lib.
Post Chapter
Cap.
3, Sec. 20.
10.
171
SUEETYSHIP DEFENSES.
is
right to stand
what
can be maintained
creditor.
discharge of
The
rests
rule
stated
in
the
text
contribution
against him.
But at
in
principle
from
it
liability.
sure-
Keen
704.
- 172
made upon
the
propesrty of one of several sureties, is held to discharge the cosureties to the extent of the contributory share of the surely
The
released.
'^'^
co-
whose obligation
is
extended,
as it deprives the
remaining
The
release
is
inasmuch
served,
is still pre-
Sacramento Co.
i8
all
ts.
Bird,
31
McKeeby
vs.
Cal. 66.
32 Atl. 1096.
Sec. 16, of the National Bankruptcy Act, 1898, provides that the
liability of one who is a co-debtor
with the Bankrupt, shall not be al-
rupt.
Warren
of other sureties.
ville
Tobacco Exch. 55
S.
vs. Louis-
W.
912.
share of
tlie
'
was
released,
re-
690; 8 S. E. 577.
But
see
People vs.
Chisholm,
ment
of
inasmuch as an abandona,
levy
by the
vs.
Burke, 23 Wend.
the liability as
made.
490;
Green
from
levy.
198
Contra
Gray
^Draper
580;
vs.
Sherman
Weld,
13
County
vs.
W.
198.
173
SURETYSHIP DEFENSES.
is
contribution
Some
to continue,
is
this arrange-
his contract,
and
relations,
is
afe
to the con-
115.
There
is
no
a promisor, at
when
requested.
(^
common
law, based upon the failure of the credupon a liquidated claim, when requested by
a surety or guarantor.
The
creditor
is
199
Hood
this respect is
Hayward, 124 N. Y.
vs.
Ham-
682.
617.
26 N. E. 331
Cole,
16
Glasscock vs.
Barker, 4 El.
vs. Whitfield,
200
People
215;
Spencer vs. Houghton, 68 Cal. 82;
8 Pae. 679; Stockton vs. Stockton,
227; 56
Price vs. Barker, 4 El.
111.
Barn.
&
Cr.
to be the rule at
To the same effect. State vs. Mat44 Mo. 305; Massey vs. BrowB,
son,
S. C. 85.
201
N.E. 1099;
State
&
Bl. 670;
;;
174
made
bound
By
to do of his
own
which
is
it is
accord.
tection
own
by bringing a proceeding
him to pay the creditor,'''" and he should not be permitted by a mere," request " to
shift upon the creditor the burden of a greater degree of diligence than he himself is willing to exercise in his own behalf.
Such is the holding of the great preponderance of authority in
his
this country.""*
202
203
Ante Sec.
Moore vs.
vs. Lit-
Philadelphia
tle,
Miller vs.
West
op
95.
107
Toplifif,
& Reading
Stout,
111.
Ky.
241
Ch. 259;
vs. Chasten, 12 Fla. 315; Bish-
vs.
Del.
Qiffard, V. G.
"A
tress, or
ty
may
impleading.
Thus,
a,
sure-
compel the
debtor on a bond in which he has
file
bill
to
when
due,
294 ;
Womack
5 S. E. 550
Amer.
Sharswood,
J.
Bellows
vs.
Lovell,
Pick.
vs.
Bank, 30 Mich. 143 ; Smith vs. Freyler, 4 Mont. 489; 1 Pac. 214; Quillen vs. Quigley, 14 Nsv. 215; Harris
vs. Newell, 42 Wis. 687; Wilds vs.
Attix,
4 Del.
Ch.
253;
Louisiana
gan, 18 R.
edict vs.
N.
W.
I.
Morrison
vs.
35
Citizens
Carpenter, J.:
creditor
and surety,
"As
it is
between
the surety's
175
SUBETYSHIP DEFENSES.
Statutes in a
number of
by the promisor
notice
the notice
if
is
and
not complied
with.
these statutes
is
of
surety or guarantor suffers no loss on account of the failure
the creditor to
when
'Vvill
it falls
pay
it
in
he performs his contract, the creditor has neither cause nor opportunity to institute legal proceedings."
See Contra Cases cited in Post
Sec.
205
116:
The
follows
Statute
in
Ohio
is
as
law, to recover
ordinary course of
and
to
amount
make,
words
of
by
execution,
the
is
required
under
this
Clark
Osborn, 41 0. S. 28;
vs.
Iliff
although
such notice
be.
notice.^""
vs.
Darby
vs.
176
may
maintain a
bill in
promisor in
first
There
is
made
creditor, the
and
less,
burden of
sets
all
upon
It
must be
cases, grant-
by the same
promisor
the
is fruit-
denial,
re-
suffers loss
by
dili-
is
where the
Same
116.
subject
vs.
Packard.
^-
^t''*o^r^^\t
200 Fed. 511.
^
^*- ^^
^^
r,
Cobb,
206
""'
J.:
"There
is
^SO.
In re Babcock, 3
Story 390,
no doubt, that
a surety
'^"'^'
^',?,"'"''
o^"x?
^^^' ^^ ^- ^- 7*^-
?^''t-r..
177
SURETYSHIP DEFENSES.
and
if the creditxjr
omits to do
this,
creditor,
he ought to
be discharged.
The
1816,
case of
is
Pain
vs.
Packard
^^
decided in 'Eew
York
in
though
it
sions,^"*
New York
courts,
its
ception of the contract, but whose connection with the transaction is subsequent to the eixecution of the
main
and
contract,
title,
is
Pain
13 Johns. 174.
Packard
The doctrine
of
adopted in the
following cases: King vs. Baldwin,
17 Johns. 384; Manchester Co. vs.
vs.
is
Bank
vs.
N. Y. 95
Martin vs. Skehan, 2 Col. 614
Thompson vs. Robinson, 34 Ark. 44
Thompson vs. Watson, 10 Yerg.
(Tenn.)
67
must
to fore-
Haden
vs.
Bank
208
362.
vs.
Rule
152.
is
in force,
In
imposed
an
oflFer
to indem-
209
210
Trimble
Wells
vs.
vs.
Thome, 16 Johns,
Mann, 45 N. Y. 327
quence of delay
of his action.
A request to be effective
under the
can
think,
In
enforcing the
we
178
Pain
is
Packard
vs.
from which
fills
a smaller
The
117.
it
field,
even in
New
York, than
it.
against
The
statutory authority
upon which- it
common
and
if
where
both demands
one to be
when
judgment fpr the balance against the one who owes the larger
amount but statutory set-off must be between the same parties
and in their own right.
Again a counterclaim or recoupment of causes of action aris;
ing out of the same transaction upon which the plaintiff's claim
is based, will
when
liability
justice,
rules for
actions, gen-
relation,
creditor.
But
is
^^^
it
is
upon
if the
demand
vs.
it."
New-
Packard.
2" Sefton
Hargett,
113
Ind.
The Statute
in
by sub-
See also
Grat. (Va.
vs.
592; 15 N. E. 513.
Edmunds
)
vs.
Harper, 31
Statute in Virginia.
179
8UBBTTSHIP DEFENSES.
is surety,
or upon a separate cause of action, that the right of the principal to have counterclaim or set-off should inure to the prom-
when sued by
isor in suretyship
the creditor.
set-off or
same
action.
If the creditor
is insolvent,
exists in favor of
preventing
his
demand
To permit
promisor
The
latter
favor, neither could the right of action for the balance be pre-
nature
is entire,
making
divisible that
which in
to a multiplicity
him should be
divided.
make
where the procedure does not permit the promisor when sued
alone,
to
of the promisor,
vs. Torrance, 25 N.
In this case there was a
breach of warranty, giving rise to a
Y. 306.
by way
180
For
creditor, it has
may
principal
The
right to
^^*
make
is
^^*
At common law a
have
set-off or
liability is joint,
and the
such cases
is necessarily a
party.
If
the
Holland, 16
Hefner, 67Tex. 54; 2 S. W. 861; Dechervaise
vs. Lewis, L. R., 7 C. P. 372; Murphy vs. Glass, L. R., 2 P. C. 408;
Alcoy Ry. vs. Greenhill, 41 London
Solicitors Jour. 330.
2l3Jarratt vs. Martin, 70 N. C.
459; Scholze vs. Steiner, 100 Ala.
148; 14 Stouth. 552.
Contra Scroggin
Mo. 419; Aultman
Contra
vs.
vs.
Willoughby
vs.
Ball,
18
90 Pac. 1017.
Where the maker is insolvent and
the surety is sued alone, the court
may require the maker to be brought
in as a party defendant for purpose
of adj'-idicating a counterclaim between the creditor and the maker.
Hines vs. Newton, 30 Wis. 640.
Okl. 535;
214 Vv^ilkins
vs.
Bank,
31
0.
S.
415.
215
S.
Kautzman
332.
vs.
Weirich, 26 O.
181
SUEETYSHIP DEFENSES.
Where
all
is
upon
fully estab-
^^^
118.
cipal,
is
such that he
is at
is
liable.^"
Pearson &
lect his
must have
473.
lows,
"There
whicli
N.
are
vs.
Bel-
H.
in
set-off,
was
182
may
at the time of
if,
may
be
if
dis-
they
But such
The
may
stances,
creditor,
collateral as his
own
interests
may
require/^"
he might
resort,
and the
218
W.
N.
219
S.
E.
366;
357.
vs.
Austin,
69
111.
collateral.
trustee
The Court
"The
said:
the
of
regarded as a
security
deposited
in
Mellendy
avail-
North vs. La
Flesh, 73 Wis. 520; 41 N. W. 633;
Hanson vs. Manley, 72 la. 48; 33
605;
latter is a
way
known
it,
and
to
him
all par-
to be interested
is
own
his
re-
and those
of
tlie
principal.
to other
marked out by the terms of the deposit, or any decrease of its value by
means of his negligence or mistake,
to
tent
is
whol-
securities
In
such
him
the
of
crease
of
Baugher
misapplication or de-
value thus
occasioned."
183
SUEETY8HIP DEFENSES.
apply such
But such
relief is based
collateral, before
"^^
upon
special equities,
and
is
not ex-
his
a creditor
fi'om losp
it
and no
till tlie
The
issue of
execution
is fruitless
cipal.""
Hayes
123.
principal
which was
and the sure-
mortgage,
til
he had
loser;
if
the mortgage
is
valid, the
of the principal
gage
is
If
the mort-
demnity
is
taint
909
because
mortgage,
of
the
usury,
made
own act.
hands,
creditor's
valueless by the
The reasoning
of
Davis
vs. Patrick, 57
hara, 84
vs.
vs.
305; Crawford
convincing,
for
Fed. Rep.
tee,
vs.
86 0. S. 43;
THE LAW OF
184
Revocation
119.
If the contract
STJEETYSUIP.
voked by notice
at
upon hj the
it
may
at
is
creditor,
and may be
becomes binding or
;
is
re-
if the
a separate consideration,
The
notice,
is
brought home to
^^*
is
obligation,
without the consent of the creditor, unless stipulated in his contract or provided
was held that the death of the surety on the bond, although
knovra to the Association, did not revoke the obligation, and
the
that
estate
was
liable
defaults
for
subsequent
to
the
^eath.^"^^
The same
=21
Ante
Sec.
situation arises
where
71.
J.
&
106 Ky.
sai-
290.
HI
.
otiier will
contract for
employment for a
capacity or as a public
A bond for
Where
185
SUEETYSHIP DEFENSES.
ofiicer.^^'
much
the service
as to past
tion.^'"
which both parties were participants in the conwere taken out of the rule by holding that such joint
obligations, in
sideration,
--'>
--''
143 Pa.
vs.
United
Mowbray
Snyder
Broome
How. 143;
vs.
vs.
l.i
State,
State,
81
Ind.
324;
Wyo. 318; 40
efit
the security has been given.
This feature of the obligation of a
cost bond places it in the category
Fed. 111.
Pac. 441
Ala. 387;
228
Rapp
Fewlass
vs.
Keeshan, 88 Fed.
obligation
is
the con-
230
Lane
if
tract
vs.
Barr,
Gordon, 3 Man.
79
&
Towers
vs.
Foster
vs.
186
obligations
as joint
man
understands what he is
doing, and that these obligors understood the long and well established
every
and a
But
difference
between
joint and
several obligation.
joint
a,
and
several,
31;
and
^^^
245;
160.
and the
estate of a
^"^
is
joint
and
United States
84,
Grier,
J.
vs.
"
Price, 9
When an
How.
obligee
voluntarily
contract,
this presumption
of,
may
be rebutted
amount
cedently
to
to a contract, ante-
their
entering
into
repudiates
and
is
the
several
certainly in no bet>
had
origi-
equity gives
relief,
the bond,
when
for
from liability,
such as the discharge of a prior obligation upon which the surety was
released at .law
bound to pay.
" When, therefore, the bond is afterwards so drawn as to constitute
only a joint obligation, there is a
reasonable presumption, that either
meaning
inr.d-
of the parties
effect."
was
liable.
Boyd
vs. Bell,
69 Tex. 735;
by the
exercise of
such, election."
It is held that
a judgment
lien
of a surety joint-
N. Y. 337.
232 Jones vs. Beach, 2 DeGex. M.
& Y. 886; Getty vs. Binsse, 49 N.
Y. 385; Wood vs. Fisk, 63 N. Y,
per, 87
Baa-
2P N. E. 3:0.
187
SURETYSHIP DEFENSES.
Nearly all the States in this country now express their disapproval of the reasoning which exonerates' the estate of a surety,
by the enactment of statutes holding the estate of the surety to
same
the
233
Burgoyne
vs.
Ohio, 5 0. S. 586,
had
survived.^''^
bond;
liived.
maker, 258
sion
left
the
every
remedy,
legal
fully
as
as
Common Law
rule as to
the
dis-
A
no
564
111.
present
given,
is
but an
vs.
Arm-
101
131 N. E. 262.
bond
of
dioes
his
not change
estate
thte
upon the
advances,
being
Aiken
652;
[Lang's
vs.
51
S.
W.
154;
Hyland
vs.
22 N. E.
765. But where a contract has been
made, death does not terminate it.
306; 18 N. E. 868.
Hudelson
his
Kernochen
Indiana.
of
consideration
as
101 N. E. 1050.
mere guarantee
sajme
common law
J.:
the'
ie
it
liability
Ranney,
112;
Murray, 111 N. Y.
Losing sight of
this fundamental distinction seems
to have led to confusion.
Thus,
mere guarantees have been called
contracts terminable upon notice of
death either by reading such a limitation into the contract or by holdvs.
ing
the
consideration
divisible.
Valentine vs. Donahue-Kelly Baking
Co., 133 Cal. 191;
65 Pac. 381.
Where the guarantee is merely in-
tended as
courts
Mass.
122
will
creditor.
168.
require
Gay
vs.
notice
to
Hunt, 16 E.
I.
the
Ward, 67 Conn.
not
by the death
Bank
CHAPTER
Sec.
V.
PRIVATE OBLIGATIONS.
Private
,120.
distinguished from
obligations
putlic
189
official
duty in
office.
Official
parties.
is
from the
between themselves,
and may
may
thereafter be
duty
is
fixed,
and subject
to
no modification or
its
expression,
It de-
is
clothed with
Bonds
to
which
differ in
many
important respects.
of bond that
must be made
as a security, such as
made with
bonds to secure
employees in positions of trust; bonds to secure the performance of building contracts, or to secure against loss from failure
of
title,
tion,
bonds against
loss
190
121.
bond
bond
is
is
under
In
seal,
its
and
is
required by law to be
is
a specialty.
formal parts
it
asi
terms of the
to the
upon the
tions
limita-
bond
is
obligation will not fail because the parties employed less ap-
is essential,
"^
is
pay
the
Even proof
is
Wood
,,,
vs.
Clietwood,
^T
44 N.
T
J.
gq g4
Fitzgerald
vs.
Staples,
88
111.
234.
I-
53^;
13,/-,
o
Atl. 901; ^i,^^'
9 ^^f^'om
Skcra vs. Hudson, 59
Tex. 207; Preston vs. Hull, 23 Gratt,
600; Pelham vs. Grigg, 4 Ark. 141;
People vs. Pacific iSurety Co., 50
Colo. 273; 109 Pac. 961; Ann. Cases
".="="
^
1012r "17
B
Phelps
202.
of a delivery to a particular
"vs.
Gall, 7 Irod.
(N. 0.)
the obligee
If
described with
is
suffl-
^,
t.,i,
.
Leach vs.
sufficient certain-
Flemming, oc
85 -vt
C.
N. n
t?i
PRIVATE OBLIGATIONS.
191
fill
in blanks
as to
But where
amount of the
penalty, where
it
blank.'
name
name
for the
left
promise.*
122.
A
cipal
bond which purports to be the obligation of both the prinand surety, must be executed by both. If the principal
is
not bound."
reference to the
bond
will
liability.""
Many
tract
The
cipal.
upon
created
to the
Sec.
124.
is
bond, although
Post
the con-
liability
remedy for
it
en-
192
instrument
It is
may
signing
will be bound.^"
It
his authority he
'
binding,
if
the instrument
is
all
to be
sealed.^^
or the
evidence of
mark
its
the
Where
official
the signature
is
it
will be bind-
9-11.
The charter
Westminster,
of
granted by Edward the Confessor,
does not bear the signature of the
monarch, but only his seal.
The use of individual seals bearing the family coat of arms, or
character, was a
against fraud and fbrgery, and furnished evidence of genuineness which was of practical importance in determining the oharacter of viritten instruments, in the
days when the ordinary machinery
of the law offered little if any pro-
other
distinctive
safeguard
teotion.
PEIVATE OBLIGATIONS.
Where
193
seal
is
In some States the Legislature has made the seal only presumptive evidence of a consideration.^'
curious
and elaborate
devices,
in-
were in
common
use, even
down
to
now no
practi-
It
has been, in
the Courts,
sufficient
a printed
scroll,
the
in
S.,''
abbreviated as " L.
Sigilli,
intended merely to
originally
indicate
place
the
where the
seal
Smith vs.
H. 524.
Any mark or sign, however small,
intended by the writer as a seal, will
be given such
effect.
was
is
now
fic-
represented by
them
al-
done in
Ohio, Indiana, Iowa, Kansas, Nebraska, Tennessee, Texas, North Da^
together.
and
abolishing
the
distinction
between
gon.
mings, 45 0.
But
tached.
Locus
see
Hess's
Estate,
150
Pa.
Storm
United States, 94 U. S.
"The agreement
J.:
here is under seal, and the action is
an action of debt founded on the
vs.
Clifford,
76,
97;
Harris,
vs.
23 Gratt.
AUer, 40 N. J. L.
446; Jerome vs. Ortman, 66 Mich.
668; 33 N. W. 759.
17 Such Statutes have been enacted
737;
in
Aller
New
gan,
vs.
York,
New
Wisconsin,
braska.
Jersey,
Oregon,
Michi-
and
Ne-
194
123.
bond.
and accepted by
To constitute a delivery there must either be an
the obligee.
actual
it
bond
it is
is
to the obligee, or to
a legal delivery,
tion
to receive it for
the bond.
a
it
is fulfilled."
The
possession of a
The
is
prima
is
prima
facie evi-
and approval
of the same.'"'
it
shall be in force
from
See
p
Mebane, 64
.,
,'
, ^
-KT
wick
Mass. 478.
pro-
date.
Fay
p;^^
^.[^^ ^^
Richardson, 7
Ainsworth, 63
88
135
jjgjj
l
20Engler vs. People's Fire Ins.
Qq ^q Md. 322 Union Bank of
Maryland vs. Ridgeley, 1 Har. & G.
(Md.) 324; Mailers vs. Crane Co.,
|i
vs.
92
111.
App. 514.
When a
^ f<=* ^^ ^''''P*^^
^^ '*' "P*',^^
P-^
IS not necessary that a condition
subsequent to the delivery by which
the obligee might have i^ade it ineffectual has not been fulfilled. The
contract is complete without notice.
U. iS. Fidelity Co. vs. Riefler, 239
U. S. 17.
Where the possession is shown to
be merely for the purpose of inspect'O"- t^e presumption of acceptance
'^
rehntted.
Mm-n.
172.
Comer
vs.
Baldwin, 16
***>
PKIVATE OBLIGATIONS.
Where
it shall
;|9_r,
between the
^^
Incomplete bonds
124.
The
ita
form
fill
blanks.
vs^ill
generally
fall
Where
which must be
filled in, in
may
take
effect,
what
the obligee as to
Where
standing as to
In the
how
first
it is to
be completed.
may
the blanks
make
be
filled
as will
In the latter
inserted,
if the
added conditions not agreed upon, or failed to insert stipulations as directed, the sureties
tion
21
may show
^tna
obligors
& Casualty
Fidelity
vs.
Co., 63 Fed.
& Nav.
Co.
22
South Berwick
Cal.
vs. Huntress, 53
Dolbeer vs. Livingston, 100
617;
35
Pac.
328;
Rose
vs.
Hun
521.
137 N. Y.
In this ease the
parties employed a Justice of the
23
Richards
vs.
183; 33 N. E. 146.
Day,
the
conditions
to
322.
Me. 89
stipulated
when the
plaintiff
signed
it,
al-
196
125.
reference.
bond
is
The terms
making
main
it
contract in
it
what. building
If the
referred
is
main contract
to.
is
broader in
its
and then
of paper,
it
would have
was.
party
who
signs a blank
bound to
money
or,
filled
Certainly in neith-
is
not, in the
tiff,
large
sum
of
up and com-
er case could it
....
of
af-
ap-
of the plaintiff?
principal
and
now
the
it up,
the person
fill
form
it
it
was."
197
PBIVATE OBLIGATIONS.
much
porate so
of the same as
is
of the bond.^^"
of labor
and
made a part
are
specifications,
of the
Such reference
bond by reference.
will
not render the surety liable for default in furnishing the material.^*
Morgan
va.
Dunlap
-*
vs.
44 N. E.
575;
and
omitting
aforesaid, etc.,"
all reference to
the materials,
furnishing
W.
vs.
519.
Wis. 434; 85
& Guaranty
N. W. 648.
C!o.,
110
The Court
said
of
part to be kept
according to its
held:
"The fact
tha,t
expressly
city
contracted that
the bond given should be given for
the payment of materialmen and laborers,
in
2s
Forst
Leonard,
vs.
112
Ala.
R. Co., 64
11.
vs.
Here the Building Contract provided that the Contractor would perform the labor and furnish the materials, and would pay all claims for
ls.bor and materials.
The contract
also provided for the giving of a
bond to secure the performance of
performed,
the
Noyes
conditions
their
terms."
had entered into a contract to perform the labor and furnish the materials, but the defeasance clause in
the bond reads, "Now should the
aforesaid contractor do and ccrm-
.the
made.^''
and
tovenaints,
contract on
553.
N".
is
111.
Wheeler, 195
169;
Hiller
vs.
App. 305
111.
Bartlett
445; 63
Daman,
183
E.
Mo.
App, 317
Jordaji vs.
152;
N.
Kavanaugh, 63 Iowa
W.
851.
In this case
contract referred to, obligated
the principal to perform the labor of
18
the
and the Surety was held to have aspiJiried, by this reference, a liability
for the performance of the entire
covenant in
contract,
all
the
ment
reference to
of claims.
the
pay-
It contained, how-
tractors
City of
New York
Refrigerator
Co.,
82
New York
Hun 553; 31
vs.
vs.
Baker,
THE
LAV.'
is to
198
OF SUEETYSIIIP.
the
By-Laws of a Corporation,
for
it is
is
Consideration.
The main
as
employment
to
make
upon the
a contract
other, such
where
Where
the By-Laws of a
be
to
upon
Bank
Humboldt
Sav.
& Loan
Soe. vs.
22 Pac.
020.
27
Smith
vs.
Molleson, 148 N. Y.
241; 42 N. E. 669.
If the
main contract
is
for
any
bonid
given to secure
its
per-
W.
vs.
20
375.
upon
the performance of his duties, two
\i'epks before giving his bond, and
the contention was that there was
this case the cashier entered
case.
It
is
averred in the
and that
in pursuance of such requirement, the bond in suit was executed and approved, and that G.
entered upon and continued his duties
as
plied,
that
if
lie
cashier.
It
is
clearly
im-
is
by reason of the
bond was to be and
was executed. This was a sufficient
consideration, and the bond was effectual and operative, at least, from
office
as cashier,
PEIVATE OBLIGATIONS.
jgg
known
to the grantee
amount
discovered, it
is
to a
there being
liable,
no new
consid-
eration.^"
demanded
until
was no
The mere
it
was
consideration.^"
to the
where
it is
that the
seal
where
States
later date.'^
But where
In those
a consideration.^^
may
is
not
be shown by parol.*"
bond
cannot be
it
contradicted by parol.''*
a failure or
lack of consideration is
claim.'
An
quired,
29
Peek
467.
Sheriff,
vs.
bond of
indemnity to a
to induce him to perform a
want
of consideration.
(Ky.)
30
vs.
Ellett,
Awte, Sec.
33
140
Mich. 271;
103 N.
oQg
L
_
,,
See also Fourth -XT
Nat.
Spinney, 47 Hun 293.
J.
T.
Bank
vs.
123;
vs.
Mfg.
Singer
Patterson
be
Co.
vs.
Forsyth,
Cocks
vs.
C.)
35
Barker, 49 N. Y. 107
Bagwell, 3
Miller vs.
528.
Ring
32
Chapman, 179
will
re-
McCord
(IS.
429.
Brown
Beeson
vs.
vs.
Kinsey, 81 N. C. 245;
Howard, 44 Ind.
Mere inadequacy
413.
of consideration
200
deemed prima
trary
is
showH.'
.<127.
bond
is
it.''
it
was executed by
that
it
If a surety signs a
surety.'"
36 Luce vs. Foster, 42 Neb. 818;
60 N. W. 1027.
In Iowa, Kansas, Tennessee, MisTexas, California, Dakota,
souri,
Alabama, and Florida, the Legialature has enacted that all contracts
in writing import a consideration.
seaWhereatt vs. Ellis, 103 Wis.
See also Lair348; 79 N. W. 416.
sen vs. Winder, 20 Wash. 419; SS
Pac. 563, where it is held that al-
though
Ala. 414.
the-
appointment
of
u,
re-
may have
point,
see
Ccmtra
Ante
Guild
Sec.
vs.
109.
Thomas,
54
PKIVATE OBLIGATIONS.
Any
201
bond
with knowledge
surety, for the
to the defense of
fraud in
ditional
67.
surety,
held
Allen
in
vs.
fraud.
apparent.
In Nash
vs.
it
ceive $10,000,
were additional scrolls for the signature of other parties than those
who had signed, was not sufficient
in the bond.
was to
re-
vs. Jones,
37 Ind. 119.
body of the
bond of the names of sureties who
do not appear as signers, would be
Pawling
Ware
to
vs.
Ind.
discharge
U.
vs. Allen,
S.,
560;
the
surety.
4 Cranch 219;
128 U. S. 590; 9 S.
Markland
Ct. 174;
vs.
Kimmel, 87
vs. Morris,
and
Where
New
Ordinary of
see
Thatcher,
it
is
12
Jersey
Vroom
held that
403.
a delivery
dition;
Evidence which
sufficient
But
vs.
the
principal
name
subse-
of the ad-
force,
such
shown as a
5 Cranch 351
dle,
cannot
condition
defense.
;
Moss
Blume
be
vs. Ridvs.
Bur-
101
L. R.
1477, note.
For additional
point see ante,
cases
106.
iSec.
upon
this
202
To come
Mere delinquency
re-
in payments due
Where
name
128.
In general the
The
liability
upon a bond
is
limited to
Surety
is entitled
by
its recitals.
parol.
The
of evidence relating to written instruments, but to the additional protection of the Statute of Frauds,
rest
alone.**
side the bond, wherein the obligee stipulates that the obligations
will not be enforced against the surety, cannot be considered.*^
Home
Holway, 55
" See
Ante
See.
there cited.
*^ Barnett vs.
Barnett, 83 Va.
504; 2 S E. 733; Cowel vs Anderson, 33 Minn. 374; 23 N. W. 542:
McGuire vs. Gerstley, 204 U. S. 489.
,,
Cunningham
vs.
Wrenn, 23
111.
vs.
By mistalce
^T^"^ *<> deliver brick.
the amount of brick was stated in
the bond as 1,000 instead of 100,000,
and in an action upon this bond, it
**
62.
PKIVATE OBLIGATIOJSf;.
Where
the principal
Rnd a bond
and the
given to secure
is
'
203
recites
The
when tendered to explain amThe law does not favor forfeitures, and proof will
to explain ambiguous terms, so as to make the bond
be received
effective.
and pioof
to
show their
special
meaning
will
ho.
received.**
some
clear that
Co.,
Mumford
vs.
Memphis &
C. Ry.
70 Tenn. 393.
J^"-
Ji-
But we are
assume that the parties
bound
to
Pac. 322.
*8
it is
liability is intended,
^^0.
vs.
Longfellow
Minn. 312; 57 N.
McGregor,
56
926.
An objection was made to this bond that
it was so far defective in expression
as to he a nullity and parol proof
was admitted
W.
explanation.
The
And
if
ef-
what
J sustained."..
must be
*XMUg vs. Davidson, 101 N". C.
i^Q; 7 S. E. 758; Hatch vs. Doug'
But
Me.
'
204
admissible in aid
is
of interpretation.
This
is
is
apparent
why
it
m written
instru-
to a
bond of indemnity.^"
Parol proof to show a fraud
fraud
is
is
obligee.
The
where the surety signs upon the condition that it shall not be delivered until the co-surety signs, is a fraud which can be shown
by
parol.
129.
'
of liability
upon a bond.
itself, to de-
may
The bond
it
will
may
be
later date.
Thus where a bond recited that it was made June 15th, and
it was to continue in force 12 months from that date, although not delivered and accepted until July 29th, it was held
that
Chapman
Bluck,
vs.
Seotts
468 ; Thompson
14;
Dwenger
vs.
vs.
Prouty, 27 Vt.
Geary,
113
Ind.
106; 14 N. E. 903.
District of
6i
McCulloch
vs.
McKee,
16 Pa.
tablished
Luce
by
Co., 41
'2
53
parol.
vs. Foster,
N. W. 1027.
meaning.
vs. Gallaher,
Columbia
Hyatt
vs.
42 Neb. 818; 60
Grover
& Baker
S.
M,
J'EIVATE OBLIGATIONS.
205
"Where the bond recites that the principal will perform his
duties as agent, and
pay over
all
money
hands, the sureties will be liable for his default in paying over
money due
and reports it as
he had previously
converted, and the principal so credits it, without knowledge of
the fraud, it will be deemed a defalcation under the bond.^
by the bond,
collects
his principal
collections
will
itation.
Thus where a Treasurer was appointed for one year, and gave
bond for the faithful discharge of the duties of his office, without specifying any time the bond was to run, it was held that no
liability attached
Where
office.'"
it
poration or
or Agency
is
cox, 8 Biss.
197.
5s
vs.
"I'Vi:
48
Atl.
72.
Comira State
^-
vs.
Atherton,
40
201.
204; Savdngs
Bank
Samuelson,
118 N.
W,
81;
82
N. W. 532; Rankin
627.
vs.
McMullen,
Penny
(Pa.)
that
it
206
130.
bond
to secure the faithful performance of duty in a position of trust, operates as a security against all loss resulting
from the misconduct or want of care of the principal.
"Faithful" performance of duty includes not only honesty,
but also the skill and diligence implied as a condition of all contracts of employment.^""
Although the agent or employee acts with the utmost fidelity,
in the sense that he does not convert or misappropriate the
funds of the obligee, he is nevertheless unfaithful within the
meaning of bonds of general indemnity, if by his indifference
to his trust, or by his negligence, a loss occurs.""
In a bond insuring an employer against losses sustained by
reason of conduct of an employee constituting embezzlement,
the word "embezzlement" is to be construed broadly in its
general and popular sense, rather than in a narrow and technical spirit with specific reference to the local statute; and a
loss occasioned by the employee's speculating on the market in
the name of the employer, but without his knowledge or consent, is within the protection of the bond."'"'
If the trust funds are taken from him by violence, not induced by his want of care, or by inevitable accident, the sureties
will not be liable."^
his fhitifes during his "continuanee
in office," but it was held to be limited to one year, since the charter
and By-laws of the Association required the Treasurer to he elected
annually.
57
Cranch
Bank
371.
&
59(i Citizens
Trust, etc., Co. vs.
Globe, etc., Fire Insurance Co., 229
Fed. 326; Ann. Cas. 1917C, 416,
note, "Act or Default of Employee
Covered by Fidelity Bond or Insurance."
so Union
Bank vs. Forrest, 3
Union Bank
Gill
vs. Ridgelv, 1
(Md.) 324;
Har.
DedhamBank
vs.
of
Frink
405
Co., 82
Citizens'
Bank vs.
Phila. Rep. 406.
SO" Mitchell Grain
Maryland Casualty
Wiegand,
&
Co.,
S.
Co.
12
vs.
108 Kan.
PRIVATE OBLIGATIONS.
207
Bonds
131.
covenants
for
gins, 58
111.
vs.
Hig-
128.
German Bank
419;
020.
But
New Zealand
50 N.
W.
41 Neb. 655;
vs.
49 N.
W.
806;
King
208
agreed upon, but also that it shall be delivered to him free from
who furnish labor and material in its con-
In City of Philadelphia
vs.
Madwas
iSec.
PRIVATE OBLIGATIONS.
209
The bond given to secure the owner in these rights may assume the form of an undertaking to complete the building if the
contractor does not, and to pay the labor and material claims if
eluded, as the record shows, the
labor not only at men who stripped
the earth to get at the stone and
who removed the debris, but carpenters and blacksmiths who repaired the ears in which the stone
was carried to the quarry dock for
shipment; and who repaired the
tracks upon which the cars moved.
And the claims allowed included
also the wages of stablemen who
fed and drove the horses which
moved the cars on those tracks. In
Illinois Surety Co. vs. John Davis
Co., 244 U. IS. 376, recovery was
allowed not only for the rental of
ernment Work."
United States vs. National Surety
34 C. C. A. 526; 92 Fed. Rep.
549, Thayer, J.:
"It is a familiar
rule of law that the contract of a
surety must be strictly construed,
and that it can not be enlarged, by
construction, and that when a bond,
with sureties, has been given to secure the performance of a contract,
and the principal in the bond and
the person for whose benefit it was
given make a material change in
Co.,
whom
210
m that respect.
Or
it
may
In the one
money
as
is
case,
it
is
and
in the other,
all
the covenants of
an obligation to pay
from the default of the
it is
The undertaking
able,
to
whether mechfinic's
liens representing
is
enforce-
in a
lien
Dewey vs. State ex rel. McOollum, 9i Ind. 173; Conn vs. State
ex rel. Stutsman, 125 Ind. 514; 25
N. E. 443; Doll vs. Grume, 41 Neb.
655; 59 N. W. 806; Kaufman vs.
Cooper, 46 Neb. 644 65 N. W. 796
StefFes vs. Lemke, 40 Minn. 27; 41
;
N. W. 302.
It is said that the double function contemplated bv this statute involves a double linbility on, the bond,
and that each obligee can recover the
full amount of the penalty from the
liens
penalty on the bond, and was thereafter sued upon the bond by material and labor claimants, and reoovery was allowed. The Court said:
"The practical effect of the statute,
and others of similar character, in
a, number of states,
seems to be to
confer a special lien in favor of such
persons who furnish labor and material, and to substitute the bond
in the place of the public building
as a thing upon which the lien is to
be charged.
Such liens evidently
appear, from an inspection of the
current legislation, to be favored,
and the Courts have usually adonted
a liberal rule of construction in their
enforcement."
05(1 \ eightman vs. National Trust
Co., 208 Pa. 44fl; 57 Atl. 879.
In
this case the bond was given to a
mortgagee to indemnifv him against
loss or damage resulting from the
failure of the principal to erect certain buildings upon the mortgaged
premises and to make certain street
improvements, and it is held that
the bond created no liability to pay
for the cost of erecting the buildings or installing the street improvements ^but merely a liability to pay
the deficiency caused by the impairment of the security because of the
failure to perform the contract.
,
211
PRIVATE OBLIGATIONS.
'
132.
material alteration in a contract secured by bond will reSureties cannot be held for a default in the performance of duty, where such duty is not in terms specified,
either in the undertaking itself, or by reference to the main contract, and the equities of suretyship will not permit alteration
of these duties, without the consent of the surety, except upon
the condition of his discharge.
must be involved as an
element the right to recover damages which have or may
be suffered by reason of the failure
cover there
essential
867.
69
108.
& Post
Stetson
McDonald,
Mill
Co.
vs.
212
Such
in-
was not the one which the Surety agreed to stand good for, and
therefore he should be released, whether the risk has been increased or not.'"
Bonds
sureties.''^
Such
as
relations are
office
assumed
be-
he was promoted.
388.
'
vs.
Lennig,
139
Pa.
594;
21
Atl.
of any other
office,
Earl, J:
"
The
sureties under-
took for the fidelity of their principal only while he was bookkeeper;
but if while bookkeeper the duties
of any other office, '.rust or employ-
of
those
duties.
the
ob-
the
While
porary
illness
or
absence,
or
he
213
PRIVATE OBLIGATIONS.
But
it is
is
increased
new
to
the
duties
abrogate the duties recited in the bond, nor interfere with their
due performance.'*
It has been held that
to in-
T'here
no
are
words
binding
the
appointment
of their principal to any other office.
They might have been willing
to be bound for him while he was
bookkeeper, or temporarily assigned
to the discharge of other duties, but
yet not willing to be bound if he
sureties in case of the
Detroit 'Savings
Bank
vs. Ziegler,
many
ties
liable for
Johnson
vs.
Eaton Milling
Co., 18
Col. 331;
Bank
W. 632 Wallace
;
vs.
Exchange Bank,
Mass.
381.
In
this
case
the
tions,
Phila. Rep. 7.
N.
vs.
Y.
Dime Savings
Neppert,
S.
R.
51
723.
In-
Hun
640;
Where the
of the
employment.
But see Grocers' Bank vs. Kingman, 16 Gray 473, where an in-
faithfully
capacity he
may
considered as
by reason
recital
was deemed broad
enough to cover the defalcations of
responsibilities.
This
to
office
as teller
Bank
vs.
24 N. E. 816.
ier
Lionberger
The principal
vs. Krieger,
TiHarrisburg Sav.
of
88 Mo. 160.
& Loan
Assn.
vs.
214
'
tain territory that the sureties will not be liable for his default*
new
in a
Where
or appointment, a
office
133.
The
test of materiality is
whether the
liability
Even
alterations
which
are
making
the penalty
of
suffi-
who
their identity.'*
There
is
strict-
ly construed,
of .his undertaking.'"
White
S.
M.
Co.
Mich. 339; 2 N.
Frank
W.
Mullins,
vs.
41
&
vs.
would be
was
Ins.
Co. vs.
196.
Edwards, 8 Welsh.
"If the
sureties had thought that the amount
of the salary was an essential ingredient in the contract, they ought
to have taken care to have had a
70
H.
lia-
surety.
His
obligation
is
volun-
PRIVATE OBLIGATIONS.
215
sureties, as
is
An
interlineation,
made by
stranger
is
mere
act of spolia-
tion,
Alterations apparent
sumed
to
will be pre-
delivery.*^
not revive the liability against the surety, except where the
teration
may be
al-
intent.
134.
Estoppel
is
lieve is true,
any
without
tary,
consideration
entered
benefit to
the
for
into
aeeom-
1
J iA
modation
of-v.his principal, and
gen-
^\,
r^,
,,.
that his
liabil-
belief.
vs.
'
'
33
Xander
Coramoewealth, 102
vs.
Pa. 434.
^^^^
To the
taking.
bound,
and
extent,
and no further.
in the
is
His con-
any re,,
,.
,,
Whether an alteration is or
spect.
IS
,,
is
not open to
inquiry."
80
'"'^^
of
an alteration
Westmoreland
vs.
after de-
Westmoreland,
Rowley
492; 9 N.
'*
sumption
W.
vs.
Jewett,
353.
56
Iowa
333,
84
Rogers
vs.
Shaw, 59
Cal. 260.
216
to
is
Where
as agent, or to
and
it
is
Again, where a bond recited the words, " Sealed with our
seals " it was shown that the seal was affixed after the signing,
obligor,
it
was held that the surety was estopped from denying that he did
not himself
But
if
affiLx
the seal.^*
a recital in the
bond that
it
'^
from asserting
that
obligor
is
Hayden
52 N.
W.
87
the
Washington
Co.
Ins.
Oo.
vs.
502.
s^o
nelly, 102
so
489.
217
PKIVATJi OBLIGATIONS.
the bond,
it
from showing
the truth.''
If the bond does not speak the truth by reason of fraud, the
recitals
may be
135.
contradicted.""
bond.
The
bond
early construction of a
sum named
as penalty as
liquidated damages.'^
It was, however, enacted
tions
by
the breach,
named
be^
mean
that a bond
was holden
amount named
as penalty
and
it
shown
upon
a bond,
to
aot."^
this
of
class
and
is
Eeed
McCourt, 41 N. Y. 436.
vs.
^'''^'
95 Hardy
Beckham
is,
36;' m^'n'^wI'sO^^''^''
But seVlCuriger vs. Joest, 22 Ind.
App. 633; 52 N. E. 764; 54 N. E.
"*'*
"'^
reST
Cases
Abr.
It
pi.
^ J ^^.
Wil
8; Parks
18,
jn, 10 Mod. 515; Hobson
son,"l0"Modr'5Y5r'Hobson
vor,
or, 2 P. VVras.
9*8 and 9
191.
Ill,
Wm.
Hurst
vs! Trevs.
Tre
Cr.
891.
c.
vs.
Jennings,
vs.
11, Sec. 8.
650;
Grey
vs.
Friar,
Barn.
&
15 Q. B.
218
that the amount
named
in the
bond
intended as a mere
is
penalty
is
much
se-
of the
tained.""
The
performance of a collateral
es-
the
main
is
6 Davis
Rawlings
Wright
14 N.
vs. Gillett,
vs.
vs.
W.
52 N. H. 126;
Adams,
Md.
26;
Minn. 494; 63 N. W.
1032; Hirt vs. Hahn, 61 Mo. 496;
Gregor,
61
Bldg.
People's
& Loan
Assn.
vs.
Wroth, 43 N. J. L. 70.
City of Aberdeen vs. Honey, 8
Wash. 251; 35 Pac. 1097.
Where the bond is to secure the
payment of an annuity, it was held
that the damages recoverable upon
a breach consist of the payments in
default, and not the penal sum
named
in
the
bond.
Cairnes
vs.
payment.
alty
97
Tate
vs.
lings vs.
vs.
&
Jackson, 83
He
bond.
damage
tion had
and
it
already been
committed^
obligee
21
Cowperthwait,
1092, the view was talcen
But in Girard
vs.
21 N. Y. S.
that a non-payment of premiums resulting in a lapse of the policy
raises an obligation upon the bond
is
show"
;;
219
PRIVATE OBLIG4.riONS.
although
recovered,
commencement
the
If
damages accrue
such
in
part
after
the
of the action."'
parties
intend the
sum named
in the
bond
be
to
be enforced.""
the
damages
of
paid
is
merely
bond
will
to
proof.^
to secure
prompt performance
Spear
09 Efoughto;!, va.
;
Atl. 140.
29 S.
Bigony
Atl.
fall
vs.
vs.
West72 N".
E. 4.
467
Eeichenbach
vs. Sage,
vs.
111.
68; 72 N. E. 4.
101
W.
13
Downey
vs.
O'Donnell, 86
111.
vs.
220
The penalty
of a
named
in the instrument.^"^
136.
Same
subject
Where
is
im-
posed by statute.
There
is
as
which a bond
tions in
is
in-
some policy of
the
a Statute or
law.
In the
first case,
is
made
law of the State, damages for the breach cannot be ascertained, and if there is to be
any recovery, it must be upon the theory that the sum named
in the bond is presumed to be liquidated damages.
bond
is
Where an
individual or corporation
is
granted a franchise
asr
way
bond must be
a breach of
damages
its
laws,
as a basis
'^f
recovery.
damages
for so trivial
an omission
any
and that it would be diffishow the nature of the injury caused, and the actual damages
arising from the delay.
of proof,
cult to
Contra
107;
Nor
385; 45 N.
uncertain
amount
as to be incapable
ic^
Swinburne,
322.
W.
472.
Oregon Ey.
& Nav.
22 Ore.
574;
Co.
vs.
30 Pac.
PEIVATB OBLIGATIONS.
221
the condition.
The Court
said
"
We
first
is
found in
to be
of these
is,
that
it
was
damages
company should
found
as a fact that
no such
loss
or
damage has in
fact
ensued.
It is equally plain that
.
As
to
the State
it
itself,
arisen.
its political
it
it
view the public interests of commerce and trade in the construction of the proposed railroad,
loss
and damages
answer
is
to
that no computation
would be
bond
in the
The
was
that,
if
the
railroad should not be built within the time limited, the Cor-
sum named
Mr
its
own
use,
in the bond."^'"'
ts.
S.
Barnard, lOS U.
Ct. 878.
S.
436, 459;
222
137.
is liable
for interest
mand
ice
is
made, interest
may
If
no
de-
in the action
upon the
bond.^"'
in-
as
Where
amount
of
is
of the penalty
and
is
138.
Where
the motive
and purpose
of
bond
is
through
its streets, it
amount
operative.
But see City of Aberdeen vs.
Honey, 8 Wash. 251; 35 Pac. 1097.
Frink
vs.
Southern Express
Ga. 33; 8 S. E. 862; United
States vs. Poulson, 30 Fed. Rep.
Brighton Bank vs. Smith, 94
231
Mass. 243; Brainard vs. Jones, 18
X. Y. 35; Ellyson vs. Lord, 124
Towa 125; 99 N. W. 582; Whereatt
vs. Ellis, 103 Wis. 348; 79 N. W.
416; American Surety Co, vs. Pacific Surety Co., 81 Conn. 252;
70
104
Co., 82
Atl. 584.
It has been held that wliere
is named in an agreement, as
dated damages for the breach
contract, that interest is not
void.
is
to
induce
This result
fol-
)-"ee
&
bond
the
is
void.
a sum
liqui-
of the
recov-
.J.
son,
Contra
^Xew
S.
W.
looo
70.
223
PEIVATB OBLIGATIONS.
is
armed
enemy
in time of
are void.
Eamsev
1066 Estate of
Whit-
vs.
550; 56 N. E. 322.
107 Cheltenham Eire Brick Co. vs.
Cook, 44 Mo. 20;
Vanover vs.
Thompson, 40 N. C. 485; Buffalo
Press Club vs. Greene, 86 Hun 20;
33 N. Y. S. 286.
beck, 183
112
Woodhouse
vs. Shepley,
2 Atk.
111.
536.
else."
108
Logan
Plummet, 70 N.
vs.
388.
109 Steele vs. Holt,, 75
C.
N. C. 188.
110
B.
Mon. (Ky.)
iiiTuxbury
311.
3b.
vs. Miller,
Where the
19 Johns.
obligor agreed to
restraint
'
charge.
See also
B. Mon.
Eaton
Goodwin
(Ky.)
vs.
vs. Blake, 3 T.
106.
Mass.
147
plaintiff's
certain
claim,
per
in
cent,
of
the
consideration
would vote
for a
upon other
and to avoid the bond.
vs.
Baumgardner,
97
51.
Littlefield,
122; 16 N. E. 771.
vent.
Wiley
Homer
224
It
is
employment
duties of their
In general
quence of doing an
11*
Bank
Newberry
of
is illegal/^*
all
vs. Stegall,
Thorne
Travellers'
vs.
" There
Ins.
Co.,
no
doubt of the constitutional pcwer
80
Pa.
of
the
the
15.
legislature
corporation
act
business
the
manner
be
shall
which
which
qualified,
state,
its
before
trans-
shall
this
in
in
be
prescribe
to
under
conditions
foreign
can
and
agents
entering
an immoral or upon an
illegal act.
is
upon
their duties.
transaction
by
statute
Smith,
der et
al. vs.
Charles' Adm., 4 S.
& R.
in the
it
is
may
mouth
of a defendant, but
founded on general
principles of policy which he shall
have the advantage of, contrary to
the real justice between the parties.
is allowed, it
That
is
-principle
of
public policy
its
116
Mitchell
is
aid to a
James
vs.
Hendree,
34
Ala.
488.
Lea
this
a,
libel.
But
902, note.
225
PRIVATE OBLIGATIONS.
139.
him
refrain
officer to
to do, or to
from doing
Thus where
a writ of restitution, is
tion of a
The
sureties
bond
to
some uncertainty
as to his rights.
is
the one
named
is
in the writ, or
uncertain whether
may
usually,
by the party in
fied
officer
as
But
interest.
bond of indemnity
to an
action, presupposes
writ,
and that
bond
to a
in
is
providing the
acts
good faith.
If an officer holds a writ of execution or attachment, his
duty requires
it
is
118
vs.
him
to levy
debtor, and
Admihistrator
Crissop,
Griffin
Morgan
vs.
Hasty,
vs. Hale,- 12
94
N.
C.
W. Va.
438
713.
226
person.
to
conflicting claims of
If
when placed
demnity in good
faith, the
is
way
But
judicial determination.^^^
knowledge that he
bond of
if
It
is
in-
not against
a controverted question to
he executes the
Avrit
with
is void.^^'
is
a past
is
of
not the
Thus a
upon and
Sheriff levied
by a third party, and subsequently refused to pay over the proceeds to the execution creditor unless indemnified, the bond was
held to be valid.""
140.
surety
upon a bond
is
medium
is void.^^"
117 Wolfe
vs.
McClure, 79 111.
564; Miller- vs. Rhoades, 20 0. S.
lis
Morgan
vs.
Hale,
12
W. Va.
Pr.
WeStervelt
(N. Y.)
vs.
Frost,
Abb.
74.
Ante
Sec.
97.
227
PEIVATE OBLIGATIONS.
creditor
of the judgment.^^^
Where
a debt secured
tion of
thereafter
to
some other
debt,
Where
it
as payment/'''
Where
it is
not
payment.*^'
.141.
upon a bond.
The Statutes of various States provide for a period of limiupon the right to bring an action upon a bond.
The usual form of the Statute is that the action must be
tation
brought within the limitation after the " cause of action ao-
121
Burnet
vs.
Courts, 5 Har.
&,
Gibson
Woodman
vs.
vs.
Rix,
32 Vt.
Mooring, 3 Dev.
824;
Law
Shumway
Shrewsbury
Savings
Institu-
126 Carroll
vs.
Bowie,
Gill
(Md.) 34.
127
125
The Statute
"
No
in
New
Jersey
Me.
560; Price vs. Barnes, 7 Ind. App. 1.
121 Smith vs. Jackson, 97 Iowa
112; 66 N. W. 80; Morris Canal &
Banking Co. vs. Van Vorst, 21 N.
ident. Directors
J. L. 100.
vs.
Reed,
34
reads :
THE LAW OF
228
The
STJKETTSHIP,
when the
cause of
ment of the
ele-
in this country.
it is
mences to run from the date the obligor is liable to a suit, but
subject to the modification that the law will not permit the
Statute to be used to protect fraud.
Where
liable to
meaning of the
It,
Statute, the
it oc-
and in those cases where the principal fraudulently conthe cause of action for a period beyond the limitation of
the
principal himself ?
(b)
con-
is
held
To what
(c)
extent
is
discovering default?
It has been urged that since the Statute in plain terms fixes
the time within which action shall be brought, and without qualification dates the limitation
action
by an equitable construction
is
in those cases
touching
duties
of
his
station,
principal
or
or
office,
against
sureties,
after
229
PEIVATE OBLIGATIONS.
is
ment the
evils
so as to suppress
Statutes of Limitation
is
to suppress
assertion of claims after such lapse of time that the truth can
own
wrong
doing.^^'
literal-
arises
a.
party.
tainly
mated
the
plaintiff
imposition
did
practised
entirely distinct
upon him,
is
accrued,
actions are to be
If,
of
it,
the Statute interposes as a protection, unless the action has been commenced and sued within six years
him
is
discovery
of
the fraud
such
actions
shall
be
com-
of action against
cause of action.
knowledge
If this
him
own
fraud."
Bradford
vs.
McCor-
W.
93.
230
may
is
makes
all,
is
established.
The
is
bound
to
know, but he
is
not
from
all liability
when
damages.^'^
130
Sparks
vs.
Farmers' Bank, 3
131
may have
who covenanted
that
and
perform the duties ' of his
position
Their covenant is
unconditional, and no failure of
duty upon the part of the directors
principal
should
'
well
truly
enabled
negligence
this
M.
the sureties
their
ports
made
to
the
by
false re-
comptroller of
is^ Campbell
Rotering,
vs.
Minn. 115; 43 N. W. 795.
42
231
PRIVATE OBLIGATIONS.
As
142.
who
to
Where an
sued upon
upon a bond.
its
who
are
named
as parties
therein.^^''
And
by the
principal.^^*
originating in States
or
may maintain an
action
upon
it,
Beckham
Townsend
Drake, 9 M. & W.
Hubbard, 4 Hill
(N. Y.) 351; Briggs vs. Partridge,
64 N. Y. 357.
Even though the instrument on
its face reads that the party signing
133
79;
and sealing
vs.
vs.
an agent,
is
it
cannot
Kier-
Statute
in
Illinois
sued upon as
if
The
pre-
Willard
vs.
Wood, 135 U.
S.
309;
i3*Henricus
vs.
Englert,
137 N.
Y. 488; 33 N. E. 550.
See also Packard vs. Brewster, 59
vs.
Hobart, 74
de-
may
Harms
now
under seal
unsealed.
Wis.
But
S.
see
82.
named
in
maintain
name.
the
the
instrument,
action
in
his
might
own
232
The
rule
is,
number
"
his
ment.""
is
made may
enforce
it
in his
own name,
benefit a
may
sue for
is
it.^'''
Administrator or Guardian,
it
is
may
be brought by an
vs.
Asch,
53 Minn.
Mumper
vs. Kelley,
43
As
Alabama
" Actions
bonds,
or
or
provides
tract,
fit
of
Sec.
made
1559
forced by
it."
vs.
on
other
implied,
for
promissory
notes,
contracts,
express
the
payment
of
J. L. 217.
not."
Ell.
548.
131.
136
may
may
action
If the
135 Jefferson
Or an
title
or
1*1
Young, Admr.,
vs.
Patterson,
233
PRIVATE OBLIGATIONS.
Joinder of parties
143.
plaintiff.
made must
join
it.
obligee,
all
are
made
plaintiffs."'
But where
bond
is
distinct
It was
was made with each Com-
can have a
separate action for the breach which affects his especial right.^**
the
differ-
may
nevertheless be joint.^*^
vs. Botfield, 14 M.
559; Phillips vs. Poole, 96 Ga.
515; 23 iS. E. 504; Burns vs. Follansbee, 20 111. App. 41; Sims vs.
Harris, 47 Ky. 55; Wallis vs. Dilly,
7 Md.
237; Dana Executor vs.
Parker, 27 Fed. Eep. 263; Phillips
vs. Singer Mfg. Co., 88 111. 305;
Norma vs. Conlan, 68 N. J. L. 88;
52 Atl. 210; International Hotel Co.
vs. Flynn, 238 111. 637; 87 N. E.
855; 15 Ann. Cas. 1062; Baker vs.
Peterson, 300 111. 526; 133 N. E.
142
Bradburne
6 W.
214.
234
144.
If a
may
bond
is joint
In Massachusetts and
may
Illinois
and severally
Where
liable
is
it
all
where the
For
code, so provides.""
the
of
may
the survivor
propriis
Where
charged de bonis
is
testatoris}'^"
the sureties
all
action, if there
Where
upon the
is
several bonds
common
may
same
liability,
be joined in one
liability.^"'
bond of an employee
the
deceased,
is
McKeevs.
lain vs.
107;
&
Fidelity
Deposit
S. E.
Co.
vs.
111.
But upon
App. 601.
official
obligors.
148 ISitate vs.
149 Tlie Ohio
or
more
of
Code provides
the
persons
"One
severally
and
.,
, .,
,
,
-kt .,,
^^ "'^^ "' their
bond. Neither of
these facts appear. But on the con.
trary,
it
is
distinctly
stated thaA
liable
Sec. 5009.
tion
(jQ
'
the
transpired
subsequent to the
These
0"
235
PRIVATE OBUQAXiON*.
the employee, also that the employee will indemnify the surety,
against loss on the bond, such instrument is not the joint obligation of the principal
several contractors
1^2
vs.
Md. 733; 48
0.
IS.
Atl. 72.
Board
of Trustees, 31
&
Wil10 So.
Walsh
Fed. 137.
ties
perceived why,
avoiding
many
of
could not
be maintained."
Powell vs. Powell, 48 Cal. 235.
See.
237
OFFICIAL BONDS.
Sec. 170.
Sec. 171.
Liability on
Bond
Sec. 172.
Defenses
Actions
Sec. 173.
Sec. 174.
Sec. 175.
in,
of a
Notary Public.
Upon Bonds
of Public Officers.
Evidence
Sec. 177.
Sec. 178.
See. 176.
Who
145.
are public
public
office
is
is
is
officers.
carrying with
it
the right
tion.
It differs
and
specific,
fixed.
are
the
office,
whom
office.
person ac-
by law upon
office.
The dom-
vs.
Boaird
of
Health of Ho-
238
an
case
office
all
persons
by
their
own breach
consent or by their
But a person
abrogated.
is
own
in an
the contract
official relation is
subject to
office.
is
officer.
His
may
and
be
per-
Thus
wheore
ment of
were
specifically
restrictions."
263; Crook
vs. People,
18 N. E.
106
237;
Augusta vs. Sweeney,- 44 Ga. 463;
Bryan
538 ; Evans
Populus,
vs.
22
111.
Ann.
La.
121;
re-
may
Hoboken
vs.
Gear, 27 N. J. L. 265;
United States
Edwards,
vs.
Mc-
Lean 467.
But see Eegina vs. Lane, 2 Md.
Raym. 1304; Edwards va. United
States, 103 U. Si 471.
vs.
Woodward,
Wheat. 518,
694,
77 N. C. 283;
Bunting
vs.
Gales,
vs.
Iowa
;
vs.
Pa. oil;
74 Atl. 430.
is
of
not contractual
a publio
is
further
Htory,
J.:
enlarge,
official
"It
repeal
is
admitted, that
and
this,
do not
among
prohibit
re-
them;
is no express or
implied contract, that they shall
always, during their continuance in
exercise
such authorities;
they are to exercise them only during the good pleasure of the legis-
office,
laturp."
OFFICIAL BONDS.
239
not
official,
employment.*
the
legal
position
error
of
plaintiff
in
diiferent
or re-
alteration,
ery,
the
respectively,
oc-
who
soning
receive,
were to
official
pursuant to law, and his compensation was fixed by law. Vacating the
doctrine
would notiave
His
Jiis place.
duties were continuing and perma-
office of
his superior
would
aflfected
the tenure of
be a novel and
startling
It
them
ive
contract rights."
Wall. 385.
office
in-
of the
specified
appoint
nuipber of clerks,
who
his superior
Shelby
vs. Al-
36 Miss. 289.
240
who undertake
Sureties
faults of private
officers
must be held
to
office.
which the suretyship is collateral, cannot generally be interposed where the relation of the principal
in a contract relation to
to the obligee
An
official
is official.
oath
is
medium by which
the
employment, and
to his
is a
distinguishing characteristic of
aii
office.*
McCornick
vs.
Utah
The trustees
of the
Tliatcher,
Utah Agricultural
whose
appeintment is derived from the
Governor, whose duty and compensation are fixed by Statute, and
who are required to take an official
College,
The Constitution
of Ohio provides
that " no person shall be elected or
appointed to any office in this State
tions of
pointed
for
definite
term.
He
Worthy
Collins
"
We
vg. Barrett,
Mayor,
vs.
63 N. C. 199;
Hun
680.
an
His
officer.
He was required by ordinance to take, and did take, the official oath; and he was amenable to
office.
all
or employees,
the obligation to
is
Lindsey
vs.
law.''
Attorney General, 33
Miss. 508.
to prescribe
condition
of
the
legislature
office
franchise
as a
of
an
office
will
non-official.
ment
Such lack of
for oath of
office,
require-
while consti-
does
OITICIAL BONDS.
241
oflBce is
Notary Public
is
who performs
the service.
An
a public officer.*
''
Attorney at Law,
deemed a public
is
officer.'
by the law-making power, and is a part of the adminand that the term public office includes
created
istration of government,'
all
146.
officer to
statute.
There
is
shall give a
no
bond
as a condition of entering
his office.
character
Commissioners
559;
Pa.
s
S.
and status
of the employ-
ment.
vs.
0.
S.
Evans, 74
124.
W.
17
660.
State of
New
that
command
is
enforcible,
and
it
body
mode
of
by reason of the
and of the
powers conferred and functions defined
by
politic,
its
creation
law."
tional limitation.
Governor
White's
vs.
Gordan, 15 Ala.
Case,
Mod.
72.
18;
Walmesley
333.
8 Smith vs. Moore, 90 Ind. 2)94
State vs. Jennings, 57 0. S. 415; 49
N. E. 404 Guthrie Daily Leader va
Cameron, 3 Okl. 677; 41 Pac. 635;
Richie vs. Philadelphia, 225 Pa.
511; 74 Atl. 430.
;
Henley
Blng. 91
Y. 372.
242
The
public officer
and such
may
officer
may
given a bond.
the
is liable
liability
bond
his
is
cumulative, and
sureties.
vntli-
and the
officer enters
upon
amount
amount
is
of the penalty,
and
it
is to
is
penalty.^*
It is not necessary that the conditions of the
bond be
Words which
recited
express the
,
Tc 4.i
also
define the qualifications
ofc of.
floeholders,
cial
offl-
bonds.
" In
required
5,,,,
commissioners.
12
67- 13 S.
'
W.
687.
.
t> n
i^ t
/m
\
vs. Polk, 14 Lea (Tenn.).
14oU. S. F. & G. Co. vs. Poetker,
102 N. E. 372; 180 Ind. 255; L. r!
A. 19170, 984, and note, "Effect
"^ insertion of unauthorized provi-
gjjjj^ jj^
hoai. required
by
statute."
243
OFFICIAL BOHDS.
Where
bond " conditioned that he will well and truly do and per"
act that is enjoined upon him by law
was considered a substantial compliance to recite in the bond
into a
Justice of the
Peace according
of the Justice."
The giving of
joint
and
Where
when the
a joint bond,
several,
was held
statute requires it to be
it
fills
by the
officer
Although there
where a public
is
from
bond
as a simple contract.^'
officer
the force cf
15
an undertaking
is
acall
" United
ers 290.
vs.
Paige,
24
fornia."
N.
to
J. L.
is
See also
324.
United States
Bank
vs.
Mason, 2 Bond.
&
183;
vs.
Newman, 36 Hun
634.
,-1
iBT < vs. Randell,
r>
J 11
o Cal.
1
coo
isTevis
6
632;
Perkins Co. vs. Miller, 55 Neb. 141
15 N.
W.
577.
E.
(Pa.)
vs. Cresson,
12 Serg.
244
is
authorized by an un-
Bonds of deputies.
147.
and the
official,
acts of a
in all cases
deputy
where
the
officer,
may
be authorized
by
statute,
But
as public offieers.^^
pal,
and
acts
Byers
Not
vs.
necessarily.
Love
vs.
McCoy,
also
Coburn
vs.
Tovrnsend,
Circuit Court.
After appointment and qualification
they 'Shall possess all the pov^er
and may perform any of the duties
prescribed by law to be performed
by the sheriff.' The right, authority
and duty are thus created by statute; he is invested with some portions of the sovereign functions of
the government to be exercised for
the benefit of the public and is,
consequently, a public officer within
any definition given by the courts or
text writers. It can make no differ-
by the
name
of the principal
^^
except
authority
dertook to execute
in his
own name
a,
sheriff's deed
as deputy.
Held,
The deputies
of
a.
sheriff
If,
Glencoe
vs.
People,
78
111.
382 j
245
OFFICIAL BONDS.
Eo Nomine.'^
terial authority
may
"*
but minis-
two
who
classes
is
ury
is
shall
to
the principal.
officers,
should be construed as
fidelity
offi-
vs. Pickett,
31 Fla. 147;
"While
appoint deputies to
name and
for whom,
thorized to act.
act in his
If
he undertakes to
authority, then he no
rior."
act
fice
there
is
official
23
independent distinctive
er or authority, except
official
'
such as he
'
own
vs.
official
supe-
4 Vt. 616
Mich. 344
Miller, 56 Mich. 148
vs. Curtis,
1
deputy sheriff
Eastman
Westbrook
309
'
recognizing no
any
pow-
in a
his
longer acts
kind in the
Van
Slyke
39 Wis.
vs.
390;
Trempealeau Ins.
Jacquemine vs.
2sHager
vs. Catlin,
18
Hun
448;
But
see
(Va.) 150.
Hoge
vs. Trigg,
4 Munf.
246
Where
the statute does not fix the terms and amount of the
The bond
the public
agree.''*
is
yet
it
its
officer,
and not
construction by
the rules that apply to. bonds to secure a private contract, be^
cause the duties and povs^ers of the deputy are subject to the
same changes and limitations which affect the office of the prinThe rules of construction therefore which relate to offi-
cipal.
cial
Qualification
148.
and approval
of sureties.
make
Not
all
some
persons, however,
become Surety.^'
in-
capacity to
official
make
bonds.
would be
no part of the
cor-
vs.
Hubert
vs.
28
Hoffman,
105
111.
147.
2'
Mendheim, 64
Cal.
to others.^"
Ante
29
so
Sec. 11.
in
commercial
be-
or
transac-
OFFICLAX BONDS.
247
Certain other persons are prohibited by statutes from becoming Surety, such as provisions of law that only those residing in
the
be
is to
filed shall
be
possess a certain
to execu-
There seems to be a special ground for considering the approval a judicial act, in those cases where the law declares the
ofiice
bond in such a
might
case,
unconnected ^ith
tk)iis,
its
file
number of well
Bank of Genesee
cases.
Co., 116
Bank,
"It
(314):
the
N. Y.
13
officers
sociation
or
quite
is
clear
J.
that
banking
of
Patchin
Denio,
309,
Auburn
as-
31 Sureties will
corporation
other
Bank
ings
considered
vs.
claiming their
defense.
in
The authority
vs. Flinn,
32
erning officers of
a,
of the gov-
lOL
But
In either case, if
they contract in a matter to which
bind the firm.
want
of author-
whose
be-
vs.
German,
etc..
W.
'
33
Md.
see
Ind. 379.
12
it
77 Ala. 100.
Ex
Swan
corporation, to
non-residence as
340;
be estopped from
a
Board of School Directors
Brown, 33 La. Ann. 383; State
vs.
company.
its accept-
regular
large
presumed from
will be
Knox
145; 24 N. E. 148.
248
149.
The omission
an
ers of
official
of the
of the
bond by the
name
Failure to approve a
to the Surety/*
principal.
is
name
in.
.the
bond
is
The
Where
the bond
is
it
office
by
would be
its
to escape liability.^^
where the
is
and does not bind the Sureties except where the obligee is able
show affirmatively that tbe Sureties intended to waive the
execution by the principal."*
to
34
known
Postmaster
Gilp.
106
37 N. H. 306.
35 Bojne Co. vs. Jones, 54 Iowa
W.
Trustees vs.
987
579; 8 N. B. 188;
Mowlbray vs. State, 88 Ind. 324;
Young vs. State, 7 Gill & John.
(Md.) 253; People vs. Huson, 78
al. 154; 20 Pac. 369; Paxton vs.
State, 59 Neb. 460 .81 N. W. 383
Estate of Eamsay vs. People, 187
111. 572; 64 N. E. 549: Deer Lodge
County vs. U. S. F. & G. Co., 42
Mont.'315; 112 Pac. 1060.
36 Trustees vs. Sheik, 119 111. 579;
8 N. E. 188: Deer Lodge C anty vs.
U. S. F. & G. Co., 42 Mont. 315; 112
In which it was also
Pae. 1060.
held that w'here the siifming of a
bond was upon condition that the
principal sign, which condition was
669
Sheik.
2 N.
119
111.
249
OFFICIAL BONDS.
It is also held that if the
as
bond
nam-
effect against
the instru-
principal signs.*'
Liability of sureties as affected
150.
by
failure to deliver or
The
statutes usually
add
These
bond
become vacant.
by
direc-
tory.
and the tender and acceptance of a bond after such date will not
revive the office nor involve
any
liability
may
that al-
It
cap-
ac-
able of proof
it
and enforcement
it
And
reasonable or unreasonable.
It is for
And
if it
atantially a
new
contract.
This
he had signed
the bond, he would not only be es-
may
be true, but
if
topped by the judgment from contesting his liability, but the sure-
could require
ties
recourse to his
vs.
Parker, 17 Mass.
597
s*
250
come vacant by failure to deposit the bond within th time prescribed by law, yet such failure does not ipso facto create a vacancy nor prevent the officer from thereafter qualifying, providing tbe bond is furnished before steps are taken to declare the
office vactent.
In reaching
many
have
times
dis-
maxim
fication is only
ment
an incidental require-
of the coromon
What
the
little
its
office
lic.
incidental
duty of qualification
is
....
office,
bond,
official
Nor do
statutory
specifically
which
an
I think that
enactment
setting
circumstances
office
a plain
becomes
forth
under
vacant
'
It
seems to
me
that
if
the legisla-
refusal
neglect
of
official
the
officer-
bond with-
it
in
itself
language more clear or unambiguous. Nothing is said about a forfeiture being declared by the proper
authority,' that is an idea expressed
by the majority opinion, but it is
not found anywhere in the law."
See also, Chicago vs. Gage, 95
People vs. Holley, 12 Wend.
111. 593
481; State vs. Churchill, 41 Mo.
'
Kearney
vs.
Andrews, 10 N.
J. Eq.
OFFICIAL BONDS.
If an
officer
251
by
this act
it is ac-
office forfeited.*^
Where the
file
be merely directory,
it is
to
fill
construed to
is
ment
become vacant
by failure to
is
may
be
made
as soon as the
The
statute in
officer to file
statute in this
form
office.
termination.**
The
courts
literal provision
mon law
cate the
Rich.
is
bond
office.
Law
Rep.
216;
Cronin
vs.
late to enter
Cawley
42
the
protection
of
the
county
office."
Stoddard, 97 N. Y. 271.
official,
filing the
N. W. 1104.
But see Cronin
64
vs.
Stoddard, 97
Beard,
34 La. Ann.
N. Y. 271.
43
State vs.
273.
44 People vs. Perkins, 85 Cal. 509
26 Pac. 245; Johnson vs. Mann, 77
Va. 265; In re Atty. Gen., 14 Fla.
277.
cept a
Jreviously qualified,
it
is
then too
office,
office
252
make a
bond, and defaults occur after entering upon the duties of his
office,
is
liable,
interpreted to
mean
upon
Sureties
151.
official
to
While
it
may
for-
The
performance of
official
if possible,
But public
interest
must yield
it is
suretyship, to stand
An
alteration
it is
much
An
takes
*5
away any
Hatch
Attleborough,
vs.
97
Mass. 533.
this case,
6 Board
of
Commissioners vs.
Gray, 61 Minn. 242; 63 N. W. 635;
Miller vs. Stewart, 9 Wheat. 680.
trustee
See
also
People
vs.
Brown,
Head
Rudesill
vs.
Bur-
613; Doane
Gray 254.
County Court of
(Tenn.)
Eldridge, 16
vs.
Board
of
Commissioners
" at
This was
its
al-
253
OFFICIAL BONDS.
The addition
edge of the
of the. name of a
first
Surety
is
the knowl-
Bond
and intrusts it to the principal, he cannot thereafter complain that the amount of the
penalty is filled in by another, and such other additions made as
If a Surety signs a
in blank
effect.'*"
amendment
152.
to the law.
lia-
be added to the
office
by amendment
may from
time to time
to the law.
The
duty.
ties
and
is
who
new
time of
-the
*^
^o
Rose
451;
34
the bond.
Branch, 94 Ga. 37
*s
Governor
vs.
Lagow, 43
111.
134.
si
Ante
vs.
Pac.
Sec. 163.
20
S. E. 65'/
THE*
254
LAW OF
SUKBTTSHIP.
or where
officer,'*^
oflBcer,
sheriff,
materially
new
pro-
cedure,^' also
the
office
While
upon an
official
to
de-
the
the
not
of
office.
Thus a
s2
collector of customs
People
drover, J.
vs. Vilas,
this class of
was by
36 N. Y. 459,
"
to
the bond.
of
made without
sureties,
both parties.
not
contemplation."
all
of this
power
is
known
to the officer
and the officer accepts the office and the sureties execute the bond with this knowledge.
It is, I think, the same in effect as
though this power was recited in the
bond. Had this been done it would
and
his sureties,
vs.
is
extended
my
IStates
conviction
is,
tion, addition or
duties of
a,
diminution of the
made by
public officer
That
all
a>
distiller
in
BSKing
Stee
Mo.
54
vs.
also
United
14 Wall. 493.
Marney
7.
Dawson
iSee
also
vs.
State, 38 0.
Commonwealth
iS.
1.
vs.
255
OFFICIAL BONDS.
money collected by him suband after the execution of his bond, he was required
by the United States to disburse funds in his hands for purpay over
sequently,
naval service.
to the
would not
new
duties, but
would be
An
officer
The implied
deemed
6'
Gausaen
vs.
examination.
may
"The
perform,
added duties
all
new
tion of
more minute
had been
to
bonds are
quired
is
official
first
be bound for
impose,
United States, 97
assent
It will still
was
it
given to secure."
originally
vs.
Clark, 92 N. Y. 391.
But
see
Pybus
&
which pertained by law to his office when the bond was made.
It
does not aver that the additional
duties changed the character of the
office,
In this
902.
Bl.
with additional
the
case
fees,
held
"
juris-
It
may
of the collector
there
ceived by
an
toms.
ing for
ceived
toms
bond
it
can
is
operate
to
release
quite incomprehensible.
be conceded, as
it
may
be,
his
longed to the
when the
bond
The
avoided."
is
that
be-
official
it is
sureties, the
bond was given will not impose upon an obligor in the bond, as such,
additional responsibilities,
If
is
officer,
un-
the
later
Union
vs.
English cases.
Graham,
Mailing
L. R.
C.
P.
L. R.
C. P. 217.
CO
66;
256
new
duties of the
same general
character,
153.
The
office.'^
act.
upon a public
officer.
The
new
officer
it also
or extended term.
upon
official
ex-
his
consent."*
merely
in
its functions,
may
lect
it,
after
addition of
same nature
new
duties,
not of the
Every official
bond is executed with a knowledge
of the right, and the practice of the
fore belonging to
Legislature,
to
it.
enlarge
the
duties
and for every additionduty imposed by competent authority, which is not in kind, but
of the officer,
al
degree,
different
office
from
office,
unchanged
in
when
it
can-
and
not
so
vs,
them,
bound."
for
they
are
District of Co
G N. W. 86
567
lumbia vs. Pelty, 37 App. D. C. 156
^s Peppin vs. Cooper, 2 Bam. &
Aid. 431; Bigelow vs. Bridge, 8
Mass. 274; Moss vs. State, 10 Mo.
;
'
257
OFFICIAL BONDS.
Where
the
bond
term of
elected
is
and
office,
and
qualified, it is
statutory term.^*
arising
cause,
might be consid-
contract.
a definite
office
beyond
the term.^^"
154.
Where a
public officer
by
who have
officers
to secure
is
required
is
the performance of
is
the Special
Bond
officer.
upon
added
the General
making
42
Gontra
C/Ommonwealth
ry, 15 Gratt.
60
Baker
(Va.)
City
vs.
Drew-
1.
vs.
Murphy,
30
Oreg. 405; 42 Pac. 133; Administrator vs. McKowen, 48 La. Ann. 251
19 South. 328; Long vs. Seay. 72
Mo. 648; Monitgomery vs. Husfhes,
65 Ala. 201; Taylor vs. Sullivan, 45
Minn. 309; 47 IST. W. 802; Thomp-
But
the
of the bond.""
N. H.
'-^a
i
kill,
eo
59.
Americfi.n
85 Vt. 358:
Ante
Sec.
1512,'.
258
bond by
re-
tion, it
sureties
upon
the General
Bond were
This rule was applied even where the General Bond recited
that the treasurer "shall safely keep
law, all
his
'
other pur-
by law to execute a
money coming from the
'
Bond
all
Special
sale of
upon
it was considered
two bonds were not cumulative, and that the sureties
the General
liable
school funds.*^
Where
by virtue of
the treasurer
his office
became the
used
.for the
Bond
Bond were
fund."'
155.
ment by the
Oounty Board
vs.
Bateman, 102 N.
Oounty
W.
907.
by a
conceal-
is
inapplicable to bonds
officers."'"
Broad
in
risk.
W.
Special
House
S.
bonds to be
and gave a
his General
81
cus-
"s
Board of Supervisors vs. Eihl45 Wis. 281; Board of Supervisors vs. Pabst, 70 Wis. 352; 35
ers,
W.
337.
See also
47.
But
S.
W.
259
OFFICIAL BONDS.
Bonds of public
156.
officers
named
the period
in the bond.
that sureties
It is self-evident
offi-
cer are not liable for acts of their principal occurring before
they
make
bond by
its
terms
is
where an
officer enters
his
un-^
his
file
back to the
It is also
first
named
till
official
stipulates.*'
make
self-evident, yet
bonds
or
money
and used
money
is
to
is
money
tion,
is
first
term,
is
in
bond,
officer
and public
re-
to
when
default was
and
if
the sureties
39
upon the
N.
States,
W.
17
71
last
bond would
Bruce
ys.
United
vs.
W.
vs.
Wil481;
260
is
upon them
oc-
show
to
that fact.
accounted
for.
may
pre-
The
first set
is
or converted
it,
it,
some other
office.
The second
set of sureties
in the second term; the conversion to the use of the officer was
in the first term; that the application of the revenues of the
is
a mere
it is
at
most an
effort to conceal
68
But
111.
111. 75.
see
181;
Trust'ees vs.
Phipsburg
sTGwynne
Fin. 572;
vs.
vs.
Smith, 88
Dickinson,
State, 66
Md.
Gkiodwin
vs.
felter vs.
9.
Burnell,
CI.
&
410.
Contra
Ind. 109.
80;
5 Atl.
Stote,
81
OFFICIAJL BONDS.
261
to
meet
loan
is
a conversion for
Where
liable.
'
the ofiicer holds over but gives no bond for the second
on hand
first
liable for
'Ingraham
vs.
Maine Bank,
13
Mass. 208.
68 Black
vs.
Oblender, 135 Pa.
526; 19 Atl. 945.
The same principle is involved
where the officer is not his own successor, but goes out of office having
money
ment proceeding, which were subthe court. Subsequently an order was made, and.
he failed to pay the money, held,
that although the money might not
be due from him during his term,
and in fact converted after the exject to the order of
piration
of
his
term,
his sureties
were nevertheless liable.
See also Brobst vs. Skillen, 16 0.
. 382.
But does the obligation of the sureties, to see that money received by
him in liis official capacity is properly paid over, cease with his' life,
or other termination of his official
term ? We think not. Such a conclusion is neither warranted by the
terms of the bond nor the object for
which it is taken, while it would
destroy all security for paying over
a considerable portion of the money
that must, necessarily, come into his
hands. It would not stop with exwierating from liability the sureties of justices of the peace,
but
would extend equally to those of
sheriffs,
treasurers, constables,
who
receive
large
sums
of
and
officers,
money
was held
for-
262
If the holding over without bond is contrary to law it is considered that the sureties of the former t6rm cannot be held
liable,
since
officer
de facto only/"
"Where the accounts of the officer at the close of his first term
were approved and he became his own successor, giving a new
bond, it was held that the new sureties were liable for shortages
occurring in the first term, on the ground that the record of the
approval was constructive notice to the sureties as to the amount
which should have been turned over.''
Sureties on the bond of an official who has served several
successive terms, giving separate and distinct bonds for each
term, are only liable for the default occurring during the term
for which the particular bond or bonds were given.''"
mer could discharge himself from
the trust was by paying it over,
upon demand, to the latter.
Until demanded, he was required
to keep it safely: and when demanded, whether he was then in or out of
office, to pay it over to the person
This his sureties bound
entitled.
themselves he should do, and a failure to do it is a, breach of their
bond. When they assumed the obligation, they must be presumed to
have known that, in the regular exercise of the duties of his office, it
would probably terminate with
money in his hands, and to have
contemplated the various contingencies by which it might be brought
to a close before the regular period
One of
for which he was elected.
these was death; and in such a case
they knew very well that the obligations resting upon him in respect
to such funds, were by law cast
upon his personal representative."
See - Iso Great FaUs vs. Hanks, 21
Mont. 83; 52 Pac. 785; Allen vs.
.
App. 103.
71
Morley
vs.
Metamora, 78
III
not made to
appear very clearly, that whatever
default occurred took place in the
first year the supervisor was in office ; but, conceding that fact, we do
not think it relieves the sureties on
the bond upon which this action is
brought, from liability. The super3fl4, Sicott,
C. J.:
"It
is
is
on the
263
'
OFPICIAli BONDS.
last surety to
Same
.157.
If
officer enters
duty and in
entirety dates
158.
its
bond given
and
is
bond,
first
cumulative obligation and does not release the sureties upon the
It is
is liable
entire
its
execu-
former
tion.''*
If the
bond,
new bond
it
Board of Education
vs. Eo'bin-
son, supra.
But
see
Ingram
Mo. 558
Humph.
419.
'3
190.
* State vs. Moses, 18 S. C. 366;
Miller vs. Moore, 3 Humph. (Tenn.)
189.
But
465.
9 S.
vs.
Sherrell vs.
Finch
W. 85
(Pt. 2) 221
Goodrum,
vs.
:
MaCombS', 17
But
see
Finn, 23
Thompson
22 Iowa 360.
vs.
Mo. App.
Dickerson,
264
159.
A public
officer
by accepting the
appointment or election to
his
fill
trust tendered
office
him through
bond which he
gives covers not merely his wilful defaults, but also those re-
sulting
exact
upon
him.'''''
to the creditor, a
in execution or atit is
damaged
while
bond
75a Gutschenritter
Whitmore,
vs.
W.
139 N.
257
7s
him and
^^7
S.
ts
insufficient
his sureties.*"
Witkowski
vs.
Hern,
82
Cal.
63 Ga. 786.
Contra People
App. 596.
vs.
May, 158
111.
265
OFFICIAL, BONDS.
The sureties of a public officer are not liable for errors in the
judgment of their principal except where those errors result
from negligence or failure to make the proper effort to ascer-
duty to be performed.*'
tain the
judgment is not evaded by showing that the officer acted upon the advice of others. Where a
duty is enjoined by law it must be observed, even though the
officer is advised by the Attorney General of the State that it
The
160.
of sureties
for failure
exist.^^
of public
oflacer
to
The
interest collected
try
it is
many
of the
own
it,
but the somewhat novel proposition has been advanced that the
the people,
his ofSce, or
account for
its
disbursement,
it is
no
affair of the
public
said the
the bond of
a,
surety
is
a quasi-
judicial act
94 Mich. 180.
82
Dodd
vs.
The
State, 18 Ind.
5fi.
266
The question
as to
is
in
some
cases determined
officer is the
by the form
of
all
in the treas-
money belonging
office," or
money belonging
all
money
ury.
officer to
treas-
to his
fund
in the
State.
a public
is
officer is
If
it
has
title to the
money
courts
concede that he
causes.*'
Even the
public enemy.
failure of a
officer
is
at the
time of deposit,
was the
officer's
from
these
so lost, if
the bond took the place of the funds and created the relation of
must respond
it is
to the full
amount of the
officer
cause.
Where
sum
the
officer,
it to
by
his
The
public
of
own wrong.
position reached in nearly all the States
officer is
now
is,
that the
re-
of
debtor and creditor, and that this relation exists, whether the
S3
267
OFFICIAL BONDS.
the officer
mode
8*
473; 54 N.
W.
N. W. 998.
1; 54
case
summa-
this country
Mosby, 133 U.
286; 10 S. Cfc.
124 lud. 306;
24 N. E. 887 ; State vs. Keim, 8 Neb.
63 Wheeling vs. Black, 25 W. Va.
266; Simmons vs. Jackson, 63 Tex.
vs.
Hunt
327;
rizes the
^*
by public money.
interest earned
S.
vs. State,
428.
follows
"(1)
officer
gains
for
therefrom.
derived
(2)
Hughes
if
own
his
profit, his
recovered in
gains cannot be
an action on his
(3)
rier for
vs.
vs.
Where
oflScial
Chicago
made contrary
an
officer,
not being
way
may
bond
against him and his
be maintained on the
official
such gains."
Wilkes-Barre vs. Rockafellow, 171
sureties, to recover
Pa. 177
33 Atl. 269
Richmond Co.
officer
re-
and
618.
is
everywhere con-
ceded.
received
the
money
hold that
if
78;
111.
593.
bond.
82
111.
committed to it
for carriage, and yet that for any
profit or gain made by the officer
out of the use of such funds he must
account to the owner of the funds,
whether the same was made lawfully
or unlawfully.
Those which
(4)
delivery of goods
People,
Gage, 95
Barney
vs.
Saunders,
How.
16
principle of equity,
a,
that wherever
fidu-
own
personal profit,
own,
but the profit will inure to the
cestui que trust."
THE LAW OF SUEETYSHIP.
268
It
is
held, however, in a
number
profits resulting
not
is
liable,
law makes
it
own
profit"'
85
money when
over the
required, and
28 Pae. 1119.
also
trict
by any public
assume
official
bond
The
est
urer
so
is
an ordinary
Such a trus-
trustee.
shall be
ished as provided
made by
in fact, be
although
the treasurer,
declares
it
provided by law.
the
making
made
shall
state.
the
if
he did put
charged, or
business and
if
he had invested
made a
profit,
it
it
as
it in
although
under our
funds are
such
constitution,
without
not liable.
Not
the
by the
property.
stolen
If
the
however,
so,
trust
otherwise
or
lost
with
No amount
treasurer.
state
of care will
selected
make the
as
depositaries;
loss
good to the
he must
state.
He
acts
are
felonies
we are
of the opinion
it
then existed."
in the
269
OFFICIAL BONDS.
161.
Ms
forming
him
upon an
liability
fails to
bond
official
him
of
Egremont
125
is
Mass.
apparent
vs.
Benjamin,
Soule,
15,
that
J.:
the
"It
treasurer
but an accountant,
bound to pay
amount equal to the amount
col-
a debtor and
bound to pay to the
treasurer the moneys which he relector of the taxes is
accountant,
W.
8
Hodgson
(0.
109;
C.)
How.
67.
vs. Dexter,
Parks
362, Grier, J.
established
rule
of
Cranch
Ross,
vs.
" Now,
law,
11
an
that an
it is
on such contract
much
less
a public
ter,
an absolute
and unqualified engagement to bs
satisfactory evidence of
personally liable."
such
ity
per se should not apply to the extent of binding the State for con-
ceives."
Brown
fioflard
S.
in order to
and a
official-
over an
represents,*"
officer,
which he
deposit
ly
against such
contract
See also
the officer
made by him
own.
when
arises only
78
Ind.
239;
vs. State, 79 Ind. 270; Wilvs.
State,
tracts
officer in
270
officer,
make
it
is
a breach by the
is
the Instrumental-
The law
brought about.
is
officer to see to it
whom
it contracts,
does not
although
im-
it
poses upon
official
notices
and
County
The
tract
sureties
would be
specially enjoined
sibility to
upon the
first instance^
officer,
but he has no
upon
official
is
official respon-
The
the con-
as such duty
Sureties
162.
make
officials.
conduct of an
officer,
in
officials.
settle
is
it
tion of the sureties, yet the law does not guarantee that such
office,
of hia authority,
But
see
Brown
vs.
156
held that the
Bradlee,
official
bond must
though the
official
offer
was made
al-
in their
capacity.
51;
Pa.
535.
ss
(S. Ca.l
30.
Law
271
OFFICIAL BONDS.
assume the risk that such inspection
thoroughly made, or
So
may
also
may
be omitted altogether.'"
it
who was
had absconded,
to issue such
it
in de-
warrant until
negli-
if the
from the
principal.^"
not
Sureties
163.
liable
for
to
failure
The doctrine of
strict construction in
80
tion,
lia-
office.
favor of a promisor in
upon
88, Allen, J.
it
official
bonds
duty
imposes
periodically
the
treasurer,
the omission
transactions.
"
their obligation, or
bond
The
condi-
Hart
vs.
United States, 95 U.
S.
80
514.
defense to an
tyship."
is
a,
tion of the
make
of that duty, or
Looney
Where
Hughes, 26 N. T.
public
a,
power, and
of
vs.
is
removing from
who
are
in
discharge a
111.
office
default,
known
subordinates
and
fails
to
delinquent, it is
quent are not released for subsequent defalcations. Stern vs. People, 102 111. 540.
272
The bond hy
duties enjoined
no other
The
its
officer,
and generally
specifies
duties.
by an
failure
officer to
liability against
the sureties of the bond, except upon the theory that persons in
an
official
all acts
and
office,
upon the
officer's official
office,
misconduct
official.
virtue of his
all
liable as insurers
relieved
from
liability for
certain
suit
sum
of
money tendered by
bondsmen are
the
It
money
and he and
money by
his
the failure of
it.""^
collector of taxes
village"
and who
and Township
taxes,
that the collection of taxes for other than village purposes was
official
sureties
were not
liable for
a failure by
the collector to pay over that part of the tax levied upon the
village property for State,
90o People vs.
McGrath,
279- 111.
"Ward
Butte
vs.
uses.^
N. Y. 406;
OFFICIAL BONDS.
So
also
where
273
money paid
court,
ceive,
it as clerk,
into
to re-
scope of his official duty, his sureties are not liable for his conversion of the funds."^
The same principle has been applied, but upon doubtful reasoning, where a debtor against whom judgment has been rendered, voluntarily pays the judgment to the sheriff, in anticipation of an execution, but without any writ being in fact issued,
it was held that the receipt of the money by the sheriff was not
within the scope of his duty, and his sureties were not chargeable.'
Auditor
to
The
duty of the
officer to act^
It is within the
Where
is
by
within the scope of his duty, and his sureties will be liable for
his failure to
vs.
State,
officer acts
34 Ind. 105;
taxes."''
first paid,
sureties
s*
vs. Griffith, 74 0.
77 N. E. 6S6.
Feigert vs. State, 31 0. S. 432;
Morris vs. State, 47 Tex. 583;
Chandler vs. State, 1 Lea (Teun.)
296; Bullwinkle vs. Guttenberg, 17
S. 80;
ss
Wis. 5S3.
Sutherland vs. Carr. 85 N. Y. 105,
Folger, G. J.:
"There was doubtless in this ease
274
ihority
from
not within the scope of his regular official duty, his defaults are
Where an
officer
capacity with-
official
it,
his sureties
The law
The opportunity
all
is
for cov-
broad enough
to
and there
is
|164
Liability
upon bond
official
It
was not
else-
Being money belonging to the town and raised under a law that looked to the vesting
of it in the hands of the supervisor
where
of the town, it
United States
vs.
Adams, 24
was
Cisco.
officii.
acts
right to do an
upon such
act,
pretence,
491.
ss People vs. Cobb, 10 Col. App.
478; State vs. Moore, 56 Neb. 82;
76 N. W. 474; Dewey vs. Kavanaugh, 45 Neb. 233; 63 N. W. 396;
Waters
16
S.
vs.
E.
918';
Cheboygan
Mich. 196; 67 N.
vs.
W.
Erratt,
1117.
110
275
OFFICIAL BONDS.
And
his
conduct
is
termed colore
officii.
''
if,
Thus where an
officer levies
This view
is
" Colore
" is used as a
an act of a public
done with wrongful intent;
officer
officii
of
description
duty and
tion."
is
it
of the
has come
which the
officer
in good
acting
an
If
officii.
officer,
makes
their
misconduct,
why
official
it
debtor.
People
making the
all
is
breach
officifil bond,
where that is that he will faithfully
perform the duties of his office.
is
is,
that the
colore
vs. Schuyler,
Gardiner, J.
took
and
bond,
might
fur-
nish."
official
'
4 N. Y. 173,
If he had
in
performed his duty, he
would have seized goods of ' F ' or
returned the writ, instead of which
he levied upon the goods of ' B,' as
the property of the defendant in attachment.
"
things
Upon
'
'
principle,
276
facts as a condition
by
authority to do as an
me
that
should
sureties
seems to
it
the responsibility
be
his
of
different
from
this:
official
officii _a.Te
officer,
but in doing
he
it
the sheriff
if
ible
sistance indispensable as a
protection.
native,
if
re-
means of
who
officer,
who, as in this
case,
the
of
may
be
wholly insolvent."
recognize
common
It
rested
upon the
insisted
is
But the difficulty in this argument is that the sheriff was not
made liable for not seizing the goods
writ.
the
relator.
The
has no
relator
anybody
or
The
else
for
this
neglect.
attachment is the
only man who has any interest in
that matter
But it is
insisted that public policy requires
plaintiff in
should be made
or
principle
Pratt, J. (dissenting)
thorities
cause they
could
er of the
.
not successfully
having the pow-
But
supposed
difficulty.
It
is
quite
tempt to
is
277
officer levies
upon and
^"^
property exempt from execution.
sells
making an
If an officer in
and
would have
latter
sist
would be trespass-
See also
Gumming
Brown, 43
vs.
N. Y. 514;
Lammon
U.
4 S. Ct. 286;
17;
S.
Fitzpatrick, 64
vs.
Wilson,
vs.
Sisson,
object
the
of
13
State vs.
Mass.
bond
to
for
the
official
acts
By
other duties.
official
"The
make
191.
is
responsible
sureties
111
137
the
vs. Feusier,
and in his
act is not
of the officer in
process;
if
so,
the
E. 100.
Casper
Hursey
App.
61 Minn.
430; 63 N. W. 1090; State vs. Farmer, 21 Mo. 160; Strunk vs. Ochletree, 11 la. 158; Hobbs vs. Barefoot,
104 N. 0. 224; 10 iS. E. 170.
102 Drolesbaugh vs. Hill, 64 O. S.
28;
vs.
Marty,
held
liable.
Minshall, G. J.
" It
would seem
much
inter-
if
officer
may
jury of another.
It is
not probable
officer,
W.
L. B. 275
affirmed 60 0. S. 626; 54
N. E. 1108.
Risher vs. Meehan, 11 O. C. C.
403, Laubie, J. : " The real question
in all such cases
is,
was the
partic-.
complained of unlawful,
and done while engaged in, and in
connection with, the performance of
an official duty? Not merely, was
ular
act
278
ties
responsible
quired, and
poiblio pol-
The bond
is
is re-
It
of another."
To the same
Kenworthy, 74
damages
for the
132
Ind.
But the
465.
3087).
Oi'JflCIAL
View
165.
BONDS.
The
274
doctrine
is
officii.
officer
official
misconducts
levy
gives
him no
It is
is
by its
by necessary implication, any acts of the officer which
are not official, in the sense that he is authorized to do them
either by law or the special commands recited in a judicial
process, and that there is no more reason for holding the surethe defendant's property, but that it does not cover, either
terms, or
of a person not
responsibility,
named
but which,
if
may
Contra
Tieman
vs.
is
If the authority
Haw, 49
la.
officer in his
280
and his
capacity,
official
Un-
it.
official acts
official
hands."
">'
166.
money by
failure of the
bank
is
where the
officer
acting in good faith, and exercising care in selection of a depository, places the
thereafter
fails.
The
respond to the
108
loss
Mankin, 70
E. 764;
S.
68
W. Va.
772.
vs.
Eobinison,
sureties,
guaran-
bond
is responsible;
tent
of
sureties.
assumed by the
he commits a wrong,
liability
If
it is
was
State vs.
141.
and
sale
the property of
by the constable
of
on an execution
colore
officii.
281
OFFICIAL BOIMDS.
A
is
forcible
made
many
in
liability
where the
officer acts
in good faith
The
common law
rule of
loss of trust
and
duct,^"'
it is
more
ing an officer to a
statutory requirement,
to
official
Bond
is
not intended
posed at
when
a trustee, which
is
always satisfied
and cautious,
money incident
so deposit
officer
it
Such
is
who
Noiwood
and administrators.
receives
negligence,
We
money by
virtue of
vs.
exercise of a
vs.
t. 471;
Robertson, 84 Ala. 489;
4 South. 728; Newton vs. Busjhong,
22 Gratt. 628.
such
Harness,
98
Ind.
Meagher,
44
Mo.
Eure, 101 N. C.
Lehman
134;
356;
11;
o>at6
Moiyre vs.
S.
vs.
872 ;
,
"
reasonable discretion
men with
reluctance."
144 Pa.
499; 22 Atl. 831; O'Connor vs.
Decker, 95 Wis. 202; 70 N. W. 286.
'"^ In
some instances trustees
trust
282
imposed by law
that
when
is
unaffected by constitutional or
that
leg-
prompt performance of
its office is to
money by
is
bank failure will not constitute an exbond, even though no suitable and safe
place of deposit was provided by law, and the officer was not
of public
oneration of the
official
Wilson
vs.
People,
19
Colo.
reputed
dent
own
solvency,
and in doing
court,
men
as
so,
clerk
of
the
acted as pru-
of
any
N.
funds."
man
financial standing
accept
or
the
public trust which
involves
handling of public money.
There
would be but little inducement to
act honestly -and in good faith, since
neither would avajil against an un-
....
vs.
Atl.
456; 66 N.
Ctounty, 51
Perley vs.
W.
162
vs.
549
283
OFFICIAL BONDS.
The
he
a debtor,
is
is
upon the
to the
custody of large sums of money, and that any other rule must
by making
depositaries
and
it possible for combinations between
resulting in unlawful conversions for which there could be no
inevitably lead to the perpetration of great fraud,
officials
civil redress.
mere
is
and by
if
him
to
officer
officer
to
deposit
bond for
is
it
is
the
held
loss resulting
if
he uses
keep
the
public
Bond
^^^
funds.
That word " safely " which
has cut so important a figure in the
majority of the cases is absent from
"?....
whatever
It
is,
has already
'
THE I.AW OF
284
167.
An
Bond where
theft or robbery.
has
done,
and by
by the
If
duty
ute, the
is
lie
money by
official
the
STJEETYSHIP.
without
exception,
it
money
the
diligent
case of Dis-
tinction relied
safely
might be construed as a
'
the obligation to
'
hold
loss,
'
is
while
to hs
And
and faithfulness.
it
undertook any greater responthat they contracted that the treasurer should
ties
justly
of
over the money, but in a high degree, and should also bring to the
performance of such duty strict
fidelity
he
that
custody
of the State
ercise a
'
the
was
therefrom
cations
should
for
the
we
But
it
the
word
is
entirely
un-
any
word of like import
While
there are several cases wherein the
statute or the bond sued on employed the expression ' safely keep
qualified
by
safely, securely, or
'
lieve,
by the courts."
In Kansas the statute requires the
"
officer to " receive and take charge
of the funds without any qualifications as to " safely " keeping, held
in Rose vs. Douglass Tp., 52 Kan.
452; 34 Pac. 1046. " By accepting
J.,
stress is laid
that
'
while
safely
"Some
(dissenting):
keep,'
the word
safely
it is
is
argued
....
OFFICIAL BONDS.
285
to strict accountability.
Not only
that he
'
to
'
he
Any
frauds,
depositary would
have nothing more to do than to lay his plans and arrange his
on his part.
more or
less
by the public?
anticipated
...
As every depositary
loss',
re-
its responsibilities,
He must
complain of hardship.
he
stand
It has not,
years.^^'
McN.
cock
vs.
Hazzard,
12
Cush.
Taylor
vs.
Morton, 37
District of
Iowa
He
ing to law.
How.
113
United States
vs.
Preseott, 3
shiel,
States,
13
Wall.
17;
United
State,
Shattuck,
Comm.
vs.
i" State
vs.
Cumberland
357; Healdsburg
576
Houston,
Ala.
78
vs. Pennell, 69
vs.
Me.
Mulligan, 113
578.
How.
ed
otherwise.''
112
112;
28
Ind.
86;
Morbeek
Muzzy
vs.
Thom-
286
enemy
or
officer
or
loss resulting
office.
The
oflBcer
was charged
may now be
de-
and
on
official
sev-
bonds
with a shortage and pleaded in defense that the moneys were seized
by the authorities of the Confederate
States against his will and consent,
and by the exercise of military force,
which he was unable to resist, and
the question presented to the Court
was whether the sureties were liable
for the loss of public funds through
seizure by an enemy of the government, and it was held that the sureties was not liable, and the distinction is made between loss by robbery and theft and that which results from an overruling force of a
public enemy. " That overruling
force arising from inevitable necessity, or the act of a public enemy,
is a sufficient answer for the loss of
that a bond with an unqualified condition to account for and pay over
obligation
public property
considered in
almost self-evident."
In reference to the liability upon
the bond as a special contract creating obligations in addition to
those imposed by the law the learned
" We do not quesJustice continues
tion the doctrine so strongly urged
by the counsel for the government,
that performance of an express contract is not excused by reason of any:
court.
It
language used by
the
court,
the
not
to,
other
cause
have been
a common
They
all
of
loss,
insufficient to
carrier
or sotae
which would
exonerate
from
liability.
point, however, of
of
much
importance,
the receiving
officer,
J.
(dissenting):
now
"I do
287
OFFICIAL BONDS.
dneed from
all
in the State
more recent
the
officer.
The
time of peace.
fault or negligence,
case
footing,
exist, is in
each
is
from an
is
ap-
enemy
act of a public
or an act of God."
Liability against judicial officers acting without jurisdic-
168.
tion.
to exercise judicial
clothed
him with
authority to
act.
power con-
merely
damage
to the
officer is
of
to
quire
vsrrong-
express promise to
Such
con-
may
liability.
was any
princi-
public
money
liable for
it,
when
it
us State
vs. Clark,
See also
Thompson
111.
99.
73 N. C. -255.
vs. Board, 30
288
Thus where
a.
damages
arrest,
he
is
liable to
an action in
is
juris-
acquired.^^'
It is held that
affected,
and not a
officer
is
authorized to make,
trespass,
or
it
is
trial of a
at the
The penalty
to
imprisonment
afiixed
the
Judge
to recover
determined
is
Our
Was
upon it, aided by the reasonings and conelusions of many more cases than we have cited, has brought us
116
best reflection
Law
Woodward
493.
ns Bigelow
39.
vs. Hill, 33
Mich. 171.
Von
Gerich-
"9 Sheldon
vs. Stearns, 19
Johns.
OFFICIAL BONDS.
to the conclusion that as
The
and
289
snd
was not without the inbut was one no more than in excess of
^"^
the act was judicial."
and
as his act
acts
all jurisdiction
of the subject
numerous cases where the question of the personal responsibility of the Judge has arisen.
Where a Judge presiding at a criminal trial entered an order
matter, has been pointed out in
tered maliciously.
jurisdiction in the
attorney
judicial
and subject
but not to an
to review,
Folger, J., in
73 N. Y. 12.
learned judge says
diet,
Lange
each
yielded to
equipoise reached."
121
Bradley
vs.
Fisher,
own
ing.
As with
which
Wal-
officer,
13
" It is a general principle of the highest importanee to the proper administralace 335, Field, J. :
upon
his
performed.
The purity
290
if the
is
Judge in good
to
jurisdiction,
While the Court does not acquire jurisdiction by merely deit, yet he has the power to pass on all the
questions which are presented to him in the ease while it ij
pending, and his decision, although erroneous, that he has jurisdiction to proceed, is a judicial act which may be the subject of
ciding that he has
review.
of their motives can not in this
way
....
tion
and the
clear
absence of all
amend by introducing an
allegation
of malice.
su-
perior
Where there
is
clearly no jurisdic-
any au-
and
diction is
execuse
permissible."
authority,
is
vs.
Ind.
justice, acting
good.
the
not
proposed
make
the
act,
allegation
declaration
inter-
and was
estab-
Gray
constable to be
committed to
jail
for contempt.
liable.
But
would
judicial
a,
sureties
therefore
for
Parkinson,
111.
courts
jurisdiction
120.
acts
in excess
shown to have
of
the
subject-matter
and
of the person,
he had jurisdiction
was a
trespasser,
and that
his
OFFICIAL BONDS.
A
a
291
more
limited juris-
The substance
diction.
its
and that
greater liberty,
Judge to decline
to act
is
conferred the
and with
would be an evasion of duty for such
merely because doubt was expressed as
to be exercised broadly
it is
it
to his jurisdiction.
why
no reason
is
is
that
one who, from his higher position and superior learning, ought
to be
169.
error.^^'
ministerial duty
to discretion
and
is
is
is left
Judicial
ter
M. & W. 739.
But see Grove
Van Duyn, 44
vs.
N. J. L. 654.
123
Brooks
576; 49 N.
liable In
W.
Mangan, 86 Mich.
633.
" It
is
determination,
conceded
any
although
HI]
121 State of Miss. vs. Johnson, 4
Wall. 498.
Flournoy vs. Jeflfersonville, 17
the
.,,
legal
education or
Upon
what reason
'C10UU ouuuiu
should
^
JacksoH, 93 Iowa
sueh
ty.
Circuit
judges
are usually men
and education
vs.
judi-
of experience
tion."
Thompson
vs.
exempt from
li-
292
officers
duties.
The
is
act is
none the
less ministerial
officer
first
his duty, such as to satisfy himself that the facts exist upon
Such
officer
may
means of performing
it.
fitness of a
dis-
is judicial,
is
ministerial.^^^
Corpus
is ministerial.^""
Where
such duty
is violated,
the officer
upon
judicial
is civilly
and
officers,
The
is
act naandatory
officer
upon the
filing of a
proper
made
affidavit,
such
and the
has been held liable on his bond for not issuing such
writ in the
manner provided by
Camp, 12 Conn.
12S
Crane
i2
Nash
127
Day,
vs.
vs. People,
464.
36 N. Y. 607.
The manner
of dis-
issue execution
So
when
duty.^"*
the justice;
specified
re-
lie
must proceed
manner.
He
acts
In a
in the
as,
in the
but are
as
Gaylor
vs.
Hunt, 23 0.
S.
255;
Contra
Wertheimer
30 Mo. 420.
vs.
Howard,
OFFICIAL BONDS.
29H
170.
upon
sheriff
same
as if the things
is liable
official
misconduct of his
The
deputy..'"
itself
made on
public sale,
is
not
is
responsible.'^^
The rule
as to
ordinates,
who
Fin. 251.
sub-
official
&
whereby
irregularities of
i3i
Crawford
vs.
Howard,
Ga.
THE LAW OF
294
STJEETYSHIP.
government
is
whom it
who extend
officers in turn,
to it ;
and
further,
it is
fill
and wrongs
committed by a large body of subordinates in the discharge
of duties, which it would be utterly impossible for the superior
officer to
discharge in person."
Liability
171.
^^^
liable
The
sureties
officer acts
172.
Robertson
U. S.
It
is
forfeitures,
Bowden
is
liable
and
officers.
technical, such as
on his bond
is
inot
government.
Bryan vs.
States, 90 Fed. Rep. 473.
is*
Doran
United
643;
42
295
OFFICIAL BONDS.
where the Statute requires the bond to be
by a certain
filed
date, or to
and although
a, non-conformance
" Sureties
exact terms.
its
upon the words of the bond, and if the words will not
make them liable, nothing can. There is no construction, no
If the bond can not have effect acequity against sureties.
stand
cording to
its
to give it effect in
vail."
may
it
pre-
"'
ministerial
officer,
is
fully pro-
jurisdiction
by shovTing that he
it,
suffice as a pro-
there
jurisdic-
tion."'
upon
its face,
discjlose
any
Ante
"8 State
13'
130
Mathews
Medary, 17 0. 565.
Sheldon vs.
Van
Buskirk, 2 N.
Y. 473.
Hill vs. Haynes, 54 N. Y. 153.
In
but
nothing appeared on the writ, whereby the officer was in any way noti-
was
fied
void,
and it was
was protected
of the invalidity,
vs.
Densmore, 109 U.
S.
Watson
vs.
Chipstead
State
vs.
Lashus
vs.
vs.
Underwood
vs.
Hann
vs.
296
ful levy.
11 Atl. 346.
296
held that the
oflBcer is
Where
is
An
is
upon the
ofHeer
is
oiScer/''^
leged from
whom
its service.^*^
While
it
may
is privi-
be regarded as a
set-
damages to any
one who is specially injured by their omission to perform what
the law requires of them, or by a careless or negligent performance of the duties of their office,
yet the law will excuse
officer is
which
office,
as
office,
and no
his
command
to
may
funds."^'
An
officer
stitutional Statute, but the invalidity of the act can not be in-
140
People
va.
Y.) 440.
it.^**
Mass.
172.
81
111.
1*1
142
324.
Chase
Smith
vs.
vs.
Ingalls,
97
29 N.
N. E. 922.
1*8 Garlinghouse
vs. Jacobs,
" While
de-
OFFICIAL BONDS.
Defenises resulting
from an
297
alteration of an official
bond
or
this chapter.
It
145
173.
office,
would seem
where the
officer acts
presumption
is
conclusive in all
may
refuse to recognize
authority, or to obey
tional law, he
may
any
illegal
an unconstitu-
own
protection.
tax,
Having
collected
ceive
State
it,
vs.
Harney,
57
Miss.
863
an
offi-
Clark vs.
Miller, 54 N. Y. 528.
i^s Ante Sec. 169, 170, 171.
For a discussion of the effect upon
the liability of the sureties upon an
official bond, where the legislature
has extended the time within which
the officer must make his settlements, see Ante Sec. 87.
"o Taylor
vs.
Alexander,
0.
298
no
official
which
office,
will do aught
But the
fundamental jurisdictional
is
no presumption
officer
always
arises
as to his authority to do
what he has
undertaken.
In accordance with
this principle it
was
making a levy upon the property for the collection of such tax,
and that there was no presumption of notice arising from the
fact that the levy was made, and that the rule of presumption
as to the
performance of
official
to such
jurisdictional defect.^*^
174,
public
officer
official
bonds.
is
not con-
Wo
cipal
i*T
who has
Mandeville
vs.
Reynolds, 68 N.
and the
Y. 534.
peace,
of private persons,
of
acts of the
accompaniment
of
other
circum-
who
security of private
own presump-
tions.
It
is
proved."
"s Jewell
S.
vs.
W. 175.
Van Steenhurgh,
58
OFFICIAL BONDS.
office, to
299
the proof
is
It is
character than
made by
the proof
If,
made
which they
transaction to
entitled to have
is
original evidence.'*"
relate,
at the
time of the
and
the default,
his Surety,
Where an
officer
holds
is
is incorrect. '''
books
office
rate sureties
was held
upon the second
whereby the
sureties
mit the
"9 Hatch
vs.
Lewis
i
'Co.,
vs.
Lee
to be then in his
Elkins, 65 N. Y.
Bank, 2 0.
do not think
S.
167;
73 Ala. 148.
Co.,
dered to
10 Mo. 559;
evidence,
Casky vs.
Eaviland, 13 Ala. 314; Parker vs.
State, 8 Blackf. (Ind.) 292; Dobbs
vs. The Justices, 17 Ga. 024; Mcvs.
E. 157;
84
Mo.
406;
to
first
of
instance,
the
144
N. Y. 55.
treasury
his
hands at
may
j-.ave
Boyd, 5 How.
Nelson, J.: "It has been contend-
department after
which ad-
of
officer
State, 59 Neb.
the
the
vs.
in
indebtedness
Paxton
W. 383.
"oaPundmann vs. Schoenich,
Mo. 149, 45 S. W. 1112.
29,
the
460; 81 N.
-1
Williams,
Kim
We
The
300
Admissions of the
termination of his
office
Where
Same subject
175.
Judgment
^'
effect to
(a)
(c)
The
is
of these positions
first
plausible
from
ways inquire
truth
may
al-
and
Sooy vs.
Boone Co.
2
W.
Where
between them."
State vs. Rhoades, 6 Nov. 352
262.
Mann
tion of
vs.
Yazoo
Supervisors vs.
99
N.
64
Ind.
Howard Bank,
421;
McShane
vs,
776.
111.
412; 22 N. E. 745.
But
upon the
987;
-7
N.
of
N.
State, 41 N. J. L. 394;
sheriff's
54 Iowa 699;
vs. Jones,
it
W.
155.
clusive against
action against
the
collec-
con-
the sureties in an
them
for a failure of
Foster, 24
vs. City
325
Montgomery
vs. Dillingham, 11
Met.
Blackf.
522;
(Ind.)
Bank
Parker
vs.
vs. Boot,
State,
292.
301
OFFICIAL BONDS.
cific act,
considered
surety, or even
would do
But in
official
perform his
official
duties,
154
view
is,
in which the
Court says:
" There can be no doubt, that where
203,
obligations.
It is
a general princi-
for the
of action
specific act,
to be ascertained in a
pay a
is con-
him
of the
of course, independ-
is,
ent of
this
It is
upon
liability
of
In
contract.
bonds,
general
will
the
the
case
sureties
terms,
perform his
that
of
official
undertake,
the
in
principal
official duties.
They
ple,
As
him
and be them-
ef-
from
the sheriff,
responsible
for
any
judgment
302
deemed of no
either be
is
surety, or else be
The
judgment of no
effect.
^^
Same subject
176.
is
The
effect that,
though a surety
when
is
is
to the
official duty,
same
con-
matter anew.
The
rule that a
is
prima
facie
evidence against the surety, gives to the surety the right to ad-
all
points'
by the Court in a leading case, " While the authorities are wide apart on the question it is evident that the decided
weight is in favor of the doctrine that a judgment against the
It is said
principal
upon an
the sureties.
By
official
bond
is
prima
App.
er-
N.
People
Dowell
vs.
Hun
vs. Russell,
25
J. L.
i=5
111.
185.
Lucas
vs.
The Governor, 6
Ala.
826.
i^e
C.
Governor
155.
vs. Montfort,
23 N.
OFFICIAL BONDS.
interpose
to
"'
on the merits."
Same subject
177.
may
303
is
Where a judgment was entered against the principal for deand thereafter a joint action was begun upon the bond
against the principal and surety, it was held that the judgment
fault
167
Beauehaine
See also
McKinnon, 55
vs.
Minn. 318; 56 N.
Moses
W.
one
1065.
n. Mersereau,
W.
N.
74
Dane
153;
Mich.
687; 42
Gilmore, 51
vs.
and
is
United States,
vs.
who has
facts,
Certainly
action.
principal,
of the facts,
Heath
Shrempp,
vs.
De
167;
22
damages by
conduct of the
The bond is
knowledge and
officer.
full
fair construction of
the sureties
the contract of
is,
contract
is
most reasonable,
and
The principal
ties
one
who ought
of
the
action
the
long as
right
is
reserved
to
them
of.
faith,
was fraudulent,
collusive, or
defense
Charles
all
principal.
the
cipal,
who may
of a decision
In most cases of
the sureties were sued
those
this kind, if
588.
is
adverse to him.
W.
defense
made by the
La. Ann.
550; 83 N.
the
likely to be properly
vs.
judgment
against
a,
sheriff
in
amercement
was held prima
in
Fay
vs. Edmiston-,
sureties
25 Kan. 439.
the
to be at the expense
of the litigation,
is
He
is
also
the
304
this
it
to
up even
against
the principal.^^'
The
is
con-
clusive against the surety does not, however, rest wholly upon
is
brought, but
One
is
is also
applied by
joint
the
sued alone.^
is
it
is
should be conclusive
is
that since
conclusive in favor of
when
pal.
if
the
if
have been
against
isj.
J.I.
must enure ito li
the u
benefit of the
prmcipal as well as to theirs. We
think it more in conformity with the
true intent and spirit of their obli+- ito I,hold
ij j-v,
gation
that it is a guaranty to the plaintiff for such amount
as he has legally established to be
due to himself from the constable;
and that in the absence of fraud
">i or
X
168
409.
all
j:
i.
,,
collusion, the
-J.
the
of
lo
plaintiflF
recdveir
damages.
If
the bond
haA been
embarrassment
in
offer
rebutting evidenca"
(Pa.)
308;
McMick'n
vs.
Coram.,
"
icocjj.
lB9(i
right
nQ-
Stevens
105 N.
/-i
loi t
Iowa
W.
653.
305
OFFICIAL BONDS.
limited in his recovery to the
the principal.""
Where
the
judgment
is first
ment
is
erated
collection of the
judgment.^"'
178.
official
bonds.
all
upon an
official
bond,
action accrues.^"^
The
as to the
some
is
much
di-
The
no demand
160
United States
vs. AUsbury, 4
In this ease a paymaster
against the sureties could not exeeed that which had been ascer-
000.00.
Ga. 927.
Wall. 186.
of
liability
in the
former action,
See also
Brown
vs.
lei
Ames
vs.
i62
Ante
See. 159.
Bradford, 30
306
at
1875.^=*
i63Keithler
Foster, 22 0. S.
vs.
27.
The presumption
of
demand at the
Codman vs.
The statute
of limitations begins
680;
It
and not
McGovern
vs.
10 So.
is
said
52.
that
limitation
does
conversion
before.
CHAPTER
VIL
JUDICIAL BONDS.
Sec. 179.
See! 180.
Bonds
Sec. 181.
Sec. 182.
for
Stay
of
Execution or Appeal.
Sec. 183.
Sec. 184.
Sec. 185.
Sec.
186.
Bee. 188.
Sec. 180.
'Successive
Sec. 190.
Sec. 187.
Sec. 191.
Sec.
192.
Sec. 193.
Sec.
194.
Sec. 195.
Sec. 196.
Sec. 197.
As
to
Appeal Bonds.
Estoppel.
When
tion of Injunction.
Sec. 198.
Sec. 199.
Sec. 200.
ISec.
201.
Sec. 202.
Sec. 203.
Sec. 204.
Sec. 205.
Sec.
Attachment Bonds.
Attachment Bomds not Fbrfeited for Irregularities of Exeoutiom
or Defects in Form.
Whether Damages for Malicious Prosecution axe Recoverable
upon Bond to Procure Attachment.
Forthcoming or Redelivery Bonds.
Bonds to Discharge Attachment.
When Action Accrues upon Bonds in Attachment.
Good Faith of the PlaintiiT, or Probable Cause for Attachment
not a Defense in Actions upon Bonds.
Sureties Estopped from Questioning the Regularity of the Proceedings out of which their Liability Arises.
Exoneration of Sureties in Attachment Proceedings.
Attachment Bonds are Available in any Court to which the
Case is taken on Appeal.
Measure
of
Damages
in Actions
Replevin Bonds.
Conditions of Bonds in Replevin.
in Replevin which are Void.
Bonds
What
307
Rw
309
JUDICIAL BONDS.
which
may
him
result to
as a nec-
The anomaly
is
ment of the
court,
to secure the
is
arise in case
So
also,
many
an undertaking
him
to
pay
costs, is insolvent.
The
remedies has
privilege;
able cause,
and the
officers
who
and the
filing of a
in stay of exe-
by the court
to
from
which
was directed.
In England a writ of supersedeas was issued from the Re-
all
further pro-
came
to
But
these proceedings
in
THE LAW OF
310
STJEETYSHIP.
Later
cases.''
that a party
The language of
make
his plea
ment of
judgment
the
as is
found in nearly
all
the State
stat-
utes.
of the judgment.
posed,
act
II.,
u.
2; 16 and 17 Car.
II., c.
whole amount
at
8.
is,
that this
is
But
not the
The word
"The
Story, J.:
statute
s.
judiciary act of
22,
requires every
damages
'
'
is
here used,
of
judgment
tive of the
indemnitywhich the
fendant
in error
to
effect,
de-
ment
costs
plea good.'
all
damages
if
the
is
and answer
'
and
is
for
is
affirmed.
Whatever
losses
security."
sufficient
and
Kountze vs. Omaha Hotel Co., 107
good
U.
S.
5
378.
The statute
in
Ohio provides
311
JUDICIAL BONDS.
Again
in
dress,
or
of their
an undertaking for the protection of the defendant, and to enable the court to
unsupported by proof/
This form of judicial bond, at
of the court,
as that laid,
became
down
with
or in part.
Or
if
which
made take
is
a written undertaking,
judgment
suffi-
pay the
be affirmed in whole
retried on
new
by
it
its
Bradley, J.
be conditioned
of imposing terms
by such Court.
R. S.
No
passed
authorizing
the
Federal
decree,
where
it
Court the
statute provides that the bond shall
evidence in the Appellate
New
nullify
first
upon a party, as
a condition of granting or withholding an injunction, is an inherent
power of the Court, exercised for the
purpose of effecting justice between
the parties, it would seem to follow
that, in the absence of
an imperative
pears that
quire an undertaking
it
it
ap-
would be inequitable or
from an appli-
plies the
power to
relieve
from
it."
THE LAW OF
312
StTKETYSHIP.
to
sum
might be deemed
as
sufficient,
New York
Code
ing bonds without sureties has for the most part been removed.
180.
In most jurisdictions a review of the higher court of the recmade by the lower court is denominated an appeal, and a
bond to stay execution or supersedeas is termed also an appeal
ord
bond, and while the Appellate Court passes upon the facts as
well as the law,
it is
court.*
in
jurisdic-
new
trial in the
' 1 Hoflf.
Appellate Court'
Cayuga Bridge
Paige 116-22.
s
Sharon
vs.
vs.
Hill,
26
Fed.
Rep.
337.
may
same as
had not been carried on in the
lower court.
Under this practice,
Alexander, 44 0.
328
S.
7 H. E.
435.
9
dence as
Some confusion
likely to arise
is
an appeal
^which
is
retrial,
where
which
is
the record
made
eral jurisdiction.
in
a,
court of gen-
The undertaking
if it
governed usually by
is
a necessary
strict
is
statu-
JUDICIAL BONDS.
An
313
trial, is
usually conferred
the remedy,
by Statute
as a matter of right,
and
discretionary
in
the
trial
court.
In
origin
its
the proceeding in
dictions.
noted,
only
differs
from the
of error, in that
State
Doane, 36 Neb. 707.
There is, however, no uniformity
vs.
the
in
several
States.
In
North
was
in equity;
originally cognizable
Baker
vs. Bel-
The same
effect is
given appeal in
Connecticut.
White vs. Howd, 66
Conn. 264. While in Nebraska, the
higher court re-examines on a.ppeal
W.
546.
Ex parte Henderson, 6
279; iSchirott vs. Philippi, 3
See also
Fla.
Oregon 484.
The use of the term appeal in a
double sense, sometimes meaning a
retrial, and again a review, sometimes embracing a review of both
the law aud the facts, and again a
review only of the law questions, is
further complicated by the terms by
which certain reviewing courts axe
The court of last redesignated.
sort in Kentucky, Maryland, and
New York is called "Court of Appeals."
In Virginia, the "Supreme
Intermediate
Court of Appeals."
courts in Illinois, Indiana and Texas, are termed "Appellate Courts."
and the intermediate Federal Court
"The United States Circuit Court
of Appeals," and yet each of these
courts entertain writs of error and
statutory appeal, and are not in a
technical sense courts of appeal exclusively as their names would indicate.
10 McCreary vs.
Rogers, 35 Ark.
298; Ricketson vs. Compton, 23 Cal.
636; State vs. Judge of iSuperior
Dist. Ct., 28 La. Ann. 547; People
vs. Knickerbocker, 114 111. 539; 2
N. E. 507; Ridgely vs. Bennett, 81
Tenn. 206.
The question of liability muati be
determined by the terms of the bond
Whether it is a statutory
itself.
bond or a common-law bond or
neither, is immaterial. A court has
the inherent power to order a stay
of its mandate, and in aid of such
power has also the inherent power
to require such bond as will enforce obedience to its order and protect the interest of the parties.
The surety, however, cannot be held
liable beyond the terms of the bond.
Southwestern
314
181.
Where
to
'
ia
57.
15
417.
Shadbolt, 44 Wis.
574. In this case the bond was not
approved by the Court until a day
after the aspiration of the statutory
limit, and it was considered a substantial compliance with the law.
In North Carolina the Statute
gives the Court discretion to extend
the statutory limit where it appears that the delay will not prejudice the appellee. Harrison vs. HoflF,
102 N. C. 25; 8 S. E. 88'7.
13 Ingram vs. Greenwade, 12 Ky.
L. Eep. 942; Keen vs. Wliittington,
40 Md. 489; Gross vs. Bouton, 9
Daly (N. Y.) 25; Fogel vs. Dussauit, .141 Mass. 154; 7 N. E. 17;
Stebbins vs. Niles, 21 Miss. 307;
Travis vs. Travis, 48 Hun 343; 1
N. Y. S. 357.
A failure to approve the bond ac"
cording to law will not discharge
the sureties, where the bond is acted
upon, the provision of approval be12
Perkins
vs.
Swan
15 S. Ct.
vs. Hill,
155 U. S. 394;
158.
315
JUDICIAL BONDS.
may
is
not in
be valid as a
tlie
common law
obligation volun-
A statutory
be complied with, or otherwise the appeal is subject to disIf the appeal is not dismissed, the sureties upon the
missal.^'
'
the appeal
'
'
security
is
in fact sufficient.^'
While a bond,
if
is
irregular,
and constitutes
W.
866.
is
it is
316
The requirement
sureties.^'
vs.
In
ute,
it
statutory
particulars,
amount
provisions
to object
er.
as
to
the
" Just as
if
taken.
19 S.
W.
Wash. 286;
34 Pac. 918.
to
the
form
of
double
is
appeal
the
S.
is
by a reasonable
inter-
made
To hold that
ascertaining
made
law, where,
the
this error in
penalty
rendered
417.
vs.
Whitaker, 11
67.
judgment or decree
In
an early case, it was said as to such
ough,
317
JUDICIAL BONDS.
capacity.
attorneys
judicial bonds.
sureties is
will
parties as
be held
if
Where the
the appeal
is
prosecuted.^"
deemed
But
waived.^''
if the
bond
all
Where
been accomplished.^*
182.
Irregularities or defects
the
Bond
itself.
The
show that
itself is
is
not
prosecuted.
from pleading a
an
appeal.
If,
24
572;
339
Sedgwick
Schuek
Dawkins, 15 Fla.
Hagar, 24 Minn.
Farrington Mfg. Co.,
vs.
vs.
Ulrieh vs.
69 Wis. 213; 34 N.
25McKellar
Ullery
vs.
W.
2'
61
Pae.
=0
Johnson
vs.
Coughran
Ogden
2s
Cochran
vs.
Wood, 29 N.
C.
Noonan, 16 Wis.
B.
&
Sundbc.ck, 13 S.
19
W. Va.
vs.
vs. Davies,
47 Pao. 772?
Rep.
687;
701.
89.
Kokott,
318
contract
it
all
the benefit
Where
liabil-
is
it ia
is
is
by
statute, it is
supported by
to
suffi-
la\<.
ing in consideration.'*
29
Waller
vs.
Pittman,
N. C.
Block
30
vs.
Blum, 33
111.
App.
643.
31 Buttilar
U.
S.
vs.
240.
28 Pac. 1070
&
W.
324.
529.
Co., 1 Cal.
Stephens
33
523.
36 N.
W.
If
To
vs. Miller, 3
validity
JUDICIAL BONDS.
319
contains conditions
ders the
A bond
latter
only
is
required,
is
the judgment.""
If the appeal
istence,
ex-
Where
peal
bond
upon an
ap-
considered a defense."*
judgment
if
Newcomb
vs. 'Worster,
Where
Allen
142 Pa.
7
ssHalsey
(N. Y.)
the
the case
is
transferred ai-
tor appeal to another county by reason of the fact that the judge in the
421.
sg
185
*
ditions."
Where
111.
Handv
vs.
320
name
appellant's
is
Tke omission
by averment
of the
name
held competent
''^
failure of
it is
in the pleadings.
as obligors to sign
"
are
immaterial defects.
All informalities are deemed waived by failure to make
timely objection.^*
and
at the
The
to its
upon
informalities.
the bond
If he secures
is evi-
dence that the obligee does not intend to waive the defects in the
bond."
Failure to perfect the appeal.
184.
party
If a
Such default
fails to
is
is
liable.
Koch, 54 0. S. 608;
In this case a further
,
,
^
^,
,
,
J
defect m the bond was urged, in
that the bond did not recite the
amount
"iWile
44N.
vs.
E. 236.
.
a
45
Columbia,
etc.,
R.
R.
Co.
vs.
Braillard, 12
be adjudgment
the
pellants ii
if
V15
i^ciiauKo
11
J
judged against them on appeal, will
satisfy
such judgment and the
costs." And it is held that the obligation thus expressly assumed was
"^f
ggp^ ^jjg jjpj^j ^^ sufficient, and by
taking proceedings to have it determined ineffectual for the purposes of an appeal, the respondent
,,.,,,.,
i.
definite
n T^
22 Kan. 17.
Greve, 58 Ind.
T.
,
42 ^..f,.
Stillmgs vs. Porter,
43
Railsback
vs.
Pax;.
Pax:.
1057;
to judgment against
Here the appeal is
dismissed because the sureties upon
i?
'^o* "t.itl'i
''"6
sureties.
treat
it
a,fter it
that
46
is
as an effectual
obligation
"
281.
JUDICIAL BONDS.
321
If the appeal
is
the bond will not be held, for the failure to perfect the
is
pellant."
limited
held.*'
should be affirmed
has
not been
fulfilled.
It
is
matter which in no
not for
way
him
affects
On
tion.
doing,
tical
"Gregory
vs.
Obrian, 13 N. J. L.
11.
111.
Mix
vs. People,
"
vs.
S.
620.
384
9 Col.
man
THE LAW OF
322
STJEETYSHIP,
185:
able.
it.'
It is not sufficient that the case has been tried in the Appellate
dociket entries in
Where
sufficient
it
to
Neither
is
that the appellant has failed to prosecute his appeal with eSect.
An
allegations,
may
readily
is
inference.^*
re-
Flanftagan
58
vs.
Cleveland,
44 Neb.
62 N. W. 297.
51 Parnell vs. Hancock,
452;
Jordan
vs.
48
Gal.
Agawam Woollen
Mass. 571.
s2 Heath vs. Hunter, 72 Me. 259.
But see Perkins vs. Klein, 62 111.
App. 5S5. Where it is held not to
Co., 106
be necessary as
a,
basis of
an action
file
certi-
To the
presumption of the
of a certified copy of affirm-
filing
that
a,
App.
111.
531.
siMalone
Daggitt
vs.
vs.
31 N. E. 153.
56
McCallion
vs.
Hibernia
Sav'g
323
JUDICIAL BONDS.
Yet where there is a distinct affirmance of a part of the regranted in the lower Court and the decree or judgment is
capable of separation, the bond will be held pro tanto if it is
lief
' '
'
'
bond
error, the
judgment and
said
costs if the
same
is
"prosecute
its
the
Harding
125
49
vs.
N. E.
8 S. Ct. 590.
71
Cail,
vs.
An-
537.
50 Mo.
App. 490. Holding that an appeal
from a decree upon a mechanic's
lien wherein the decree was affirmed
in part and released in part did not
constitute a breach of the bond.
58 Krone vs. Cooper, 43 Ark. 547.
See also Oakley vs. Van Noppen,
100 N. C. 287; 5 S. E. 1.
In this
case the condition of the appeal was
"if, upon said appeal, the said ruling is affirmed, and said alleged lien
declared and held valid," the ruling
was affirmed, but the decree did not
in terms hold the lien valid.
This
was considered a substantial affirmanoe, and to constitute a breach of
the bond.
To the same effect see Foster vs.
Epps, 27 111. App. 235.
But see Rice vs. Rice, 13 Ind. 56i2.
This was a, judgment for divorce
with a decree for alimony in the
sum of $200 and for a part of defendant's land. The Eewiewing Court
substituted a decree for $3,200 and
released the land, and it was held
not to be such an affirmance as
would bind the sureties for tlie
$3,000 added by the Court to the
decree.
483;
THE LAW OP
324
STTEETYSHIP.
Where
bond will not be held for the part of the decree which
tl
is
af-
firmed.""
The
addition of a
new party
party
186.
is
Same
subject
want of prosecution
appeal.
is
a con-
when the
stated as follows
of prosecution
"
as
must be
in the premises.
different
It
is
But
jurisdiction
"i Helt
Contra
111. App.
Haberer
Col. 199.
Koelling
vs.
Wachsning,
App. 322.
Ooniro Kimball Print'g Co. vs.
Southern Land Improvement Co.,
57 Minn. 37; 58 N. W. 868.
174
111.
JUDICIAL BONDS.
325
may
affirm a decree
it
when
"'
failure to prosecute
tlie
appeal.^*
breach of
would be submitted
to judicial determination.**
375.
83
But
111.
see
Schuster
158; 21 S.
W.
vs.
Weiss,
438,
GanM, J.
Mo.
"This
114
.
mode
of
proceeding in
so long as
obligation
it
of
courts,
its
the contract,
is
too
well settled to be
tion.
efficacious is afforded to
the suitor,
So
deprived
cured
same time
se-
of
is
to his sureties.
pairing
its
obligations."
Trader
vs.
Sale,
18
O. C. C. 814.
ee Johnson vs. Flint, 34 Ala. 673;
Osborn vs. Hendrickson, 6 Cal. 175.
326
This has been so held even though the compromise was made
good
faith."'
collusive
compromise
An
Hun
210;
Black.
(Ind.) 238.
Foo Long
vs.
Amer. Surety
Co.,
or
agreement
to abide a
99,
condition
of judicial procedure,
and not an
parties.
The
plaintiff
was
en-
in
unquestionably fraud-
is
if
was,
Their
substantially,
that
af-
be
rendered thereon.
From
their
the practice of
ment by default
But
if
to construe the
undertaking as
Contra
Drake
vs.
215;
First
44
Quigley, 14
Smythe,
vs.
State
Bank
vs.
Neb. 80; 54 N.
W.
126.
against
sureties.
Even
if
judgment, so as to be debarred of
the right to complain in a collateral
proceeding of what was done in the
proceeding, the necessary legal
effect
to
confer
full
and upon the same reason was authorized to compromise the suits
upon terms advantageous to himself.
This was no violation of the obligation of the sureties, nor variation of
for
JUDICIAL BONDS,
327
test case is
it
liable
a possible reversal.
Want
is
a breach of the
Thus where an affirmance was set aside upon the discovery that the appellant corporation had been dissolved before
bond.
filing the
to prosecute error
was deemed
As
187.
to
when
action
may
it is
by
law.''^
But
a levy
upon land
is
upon
the bond since such a levy does not deprive the principal either
of the possession or use of the land,
an appeal
bond are parties to the suit, in the
sense that they must be consulted in
regard to any step taken in the case
by their principal,
">
85 Tex. 605
Ann.
First Nat.
385.
31.9.
Bailey vs.
Rosenthal, 56 Mo.
"It has never been held in
'i
407
Smith
1072.
22 S.
vs.
W.
vs.
Hughes, 24
Bank
vs.
Jackson,
1030.
111.
270;
Rogers, 13 Minn.
328
not necessary to
first
"Where the bond was to secure an appeal from a special judgtaxes, which judgment became a lien upon the land
of the defendant, but did not become a personal obligation, it
was considered that the liability against the surety was not
ment for
fixed until execution had been first issued, as such a step was
necessary in order to show a non-satisfaction.'*
It is not necessary to first make a demand upon the principal
Mayo
vs.
Williams, 17 O. 244.
is
JUDICIAL BONDS.
329
aji
appeal or
stay bond.
express
words
from,
it
So
also,
bond conditioned
If
entered
on a recognizance, and
against stipulators in admiralty, we
see no reason in the nature of
things, or in the proviisions of the
Constitution, why this effect should
not be given to appeal bonds in
other actions, if the legislature
deems it expedient. No fundamental
constitutional principle is involved;
no fact is to be ascertained for the
purpose of rendering the sureties
liable, which is not apparent in the
recoird
itself;
no object (except
L.
Many
vs.
Rep. 783;
Sizer, 6
si
53 S.
Gray
Miohie
61 N.
W.
W.
21;
141.
vs. Ellair,
1020.
But
60 Mich. 73;
see
Expanded
THE LAW OF
330
SUKETYSIIIP.
lower court was reversed in the Appellate Court, but the appellee then appealed to the Supreme Court, where the judgment of the Appellate Court was reversed and that of the
trial court affirmed.
It
Supreme Court.'^"
A bond given on appeal from an order overruling a motion
to vacate the appointment of a receiver, and requiring appellants to prosecute the appeal with effect, or "pay all the costs
which have accrued in the court below," binds the surety
for
and not
for
main
suit.'^*
bond in apand the bond omits some of these requirements, they wiU
be supplied by the intendment of the law, and recovery had for
the amount the Statute requires.*^
If the Statute points out the requirements for a
peal,
Where
is
is
damages and
'
'
was conditioned
98.
2
Chandler
vs.
Thornton,
B.
cally
exact language.
vs. Hunter, 142 N. W.
2.51-,
D. 108; Marean vs.
3S S
Stanley, 34 Col. 91; 81 Pac. 7fl9';
Supeivisors vs. Kennicott, 103 U.
its
s^^Iauder
S.
554.
331
JXIDICIAL BONDS.
not cover the original decree nor interest pending appeal, nor
rents and profits upon the land.^'* The Statute in some of the
States requires the appellant in foreclosure to execute
a bond
conditioned to
Omaha
83Kountz vs.
107 U. S. 378;
Hotel Co.,
"The plaintiff, in
(p. 392)
this case, was not entitled to possession, nor to the rents and profits. His
ley, J.
foreclosure suit did not seek possession, but sought a sale of the spethe land. In such a case,
cific thing
until the litigation is ended, it doth
The taking
profits
Miller, J.
(dissenting), p. 400:
'In all cases of insolvent mortgagors
^^
by the Court,
is
inducement to keep
mortgagee out of his money as
long as possible, without interest,
or any other comipensation for the
offers a strong
tlie
delay.
An insolvent corporation
a railroad company, for instance
makes default in its mortgage
bonds, which amount to twice the
value of the property mortgaged.
decree is obtained for its sale, and
before a receiver can be appointed,
the directors take an appeal, give a
among interested
parties. No more striking instance
of its injustice is needed than he
case before us.
decree for money
largely in excess of the value of the
hotel mortgage is stayed by a bond
foT $50,000, under which the defendant, an utterly insolvent corporation, receives rent, or uses the property to the value of $38,000, while
it litigates
without a shadow ol
rigiht, in this court for three years,
and appropriates this $38,000 to its
own use, and is not held responsible
gage, or distribute
to
make good
its plea."
See
also,
706.
832
closure,
deficiency.
^'^
An
obli-
gate the sureties for the rents and profits during the time the
appellee
is
App. 265.
neapolis
But
Kogers
Threshing Mach.
see
v.
Min-
Co.,
48
91;
81
Copeland
vs.
Col.
Pae. 759.
See also
Dixie Lumber Co., 57
s'Willson
vs.
88 Friedrnfan.
App. 230.
Glenn, 77 Ind. 585.
Lemle, 38 La.
vis.
Ann. 654.
80 Lunsford
512;
524.
was upon
suiBcient
consideration,
and by reason of it the judgmentcreditors were prevented from pursuing such property as might be in
possession of the judgment-debtors,
or marshalling the assets; they can
not therefore successfully urge that
the judgment could not have been
collected.
The considerations now
advanced for the purpose, and also
set out in the answer, might have
availed upon an application to the
Est.,
Adams
vs. Gil-
St.
^33
JUDICIAL BONBS.
bond."'^
It bas
is liable
judgment and
costs
upon
affirm-
ance.""
The bond
is
pealed from.
Where
the
sum named
is
erroneous.
Pa- 104.
An appeal
in an action to quiet
does not charge the appellant
upon the bond for the rents and
profits accruing during his possession pending appeal.
Carver vs.
Carver, 115 Ind. 539;/ 18 N. E. 37.
"Kellogg vs. Howes, 93 Cal. 586;
29 Pac. 230; Noll vs. Smith, 68 Ind.
18; Deisher vs. Gehre, 45 Kas. 583;
26 Pac. 3; Williams vs. Fidelity &
Deposit Co., 42 Col. 118; 93 Pac.
1119; Higginsi vis. J. I. Case Threshmg Mach. Oo.,_144 N". W. 1037; 95
^^^- ^'
CoraShows
vs.
Pendry,
93
George
Cooper
Rhodes, 30
Ann
Iva.
533.
oi Zeigler
480; 43 N.
title
Ala.
92
as
vs.
W.
Henry,
77
Mich
1018.
selves
vs.
Merchant's Bank
How.
Whereatt
79 N.
vs. Ellis,-
12
10
W.
334
189.
Where
is
given in an
which a prior bond in appeal or stay has been exewhere an appeal has been taken to an. intermediate court, and a further appeal is taken to a court of last
action in
cuted, such as
final affirm-
As between
cipal obligors,
and the
first
them."
American authority the judicial rule
here, as to interest, is that
when the
vs. Silverberg,
how-
Babbitt vs.
penalty,
the
interest
period,
7,
by the right of
the obligee to interest upon the
damages against the principal. That
ever, to be controlled
is
to say,
is
charge-
the damages
oij
bond
is
under this
breached
amount
Clifford, J.
given
in
liable if the
subordinate
judgment
is
court
is
to
affirmed in
dis-
ment
is
resort.
of
interest, the
same
in all respects as
if
Bank
vs.
Baker, 58
Becker
vs. People,
164
111.
267; 45
diction,
ment
in
Hinckley
vs.
Kreitz, 58 N. Y.
iL. R. A. (N&)
1021.
JUDICIAL BONDS.
Where a new
335
trial
retrial the
cuted.""
190.
Estoppel.
upon an appeal bond are estopped from all colupon the judgment appealed from. All issuable
facts necessary to the validity of the judgment are conclusively
settled by the judgment and its affirmance, and any fact which
was necessarily determined in the action in which the judgment
was rendered, can not be put in issue in an action upon a
The
sureties
lateral attack
bond.
101
ssLowry
Tew, 25
vs.
Hun
257;
Robinson
484;
vs.
Crane
Plimpton,
vs.
25
N".
Weymouth, 54
Y.
Cal.
476.
But
the intermediate court and the intenmediate court rendered no judgment, but reversed the lower, court,
a subsequent reversal of the intermediate court was held to impose
no liability upon the bond,
To the same effect see Nofslinger
vs. Hartnett, 84 Mo. 649.
looHargis vs. Mayes, 20 Ky. L.
Rep. 1965; 50 S. W. 844.
loi Sutler
vs. Wadley,
15 Ind.
502; Pierce vs. Banta, 9 Ind. App.
37'6; 31 N". E. 812; Hydraulic Press
Brick Co. vs. Neumeister, 15 Mo.
App. 592; Keithsburg & E. R. R.
vs. Henry, 90 111. 255; McCarthy
vs. Chimney Construction Co., 219
111. 616;
76 N. E. 850; Iroquois
Mfg. Co. vs. Annan- Burg Milling
Co., 161 S. W. 320 179 Mo. App. 87.
West vs. Carter, 129 111. 249; 2]
N. E. 782. In this case the judgment appealed from was upon a
gambling debt, and the surety do;
see
Stoll
100
Mich. 404; 59 N. W. 176, where the
bond was conditioned to pay such
judgment as should be rendered, in
vs.
Padley,
336
The
col-
The want
In general the
de-
or that
the order of the court in reference to the appeal was not complied with/"'
Where
the appeal
is
statutory
<191.
An
all
case
is
begun
fends
upon
the
This
is
ground
a right
that
the
Contra
292;
""^
Krall
W.
Hathaway
10 N.
vs.
Libbey, 53 Wis.
386.
\'s.
Davis, 33 Cal.
161.
">* Parrott vs. Kane, 14 Mont,
23; 35 Pac. 243; American Bonding Co. vs. Rudolph^ 127 Pac. 133;
53 Col. 389.
But where in the case appealed
the obligee has appeared in court
and asserted that he had obtained
no judgment and thereby caused the
there-
estoipped
to
JUDICIAL BONDS.
and
unknown
is
to the
common
337
law, and
is
in force in nearly
the States.
all
The
Court, for the most part, relate to the susptension of the right
of execution without conferring a right of review in the
late Court,
Appel-
bond.
be
filed
as to the
and creates no
Where the
liability
Court no
on the bond.^"'
bond
conditioned to
is
dis-
and the bond merely recites that he vdll pay the judgment of the Appellate Court, the requirement of the statute
becomes a part of the bond by intendment of the law, and if the
missed,
appeal
is
192.
As
by injunction will
cute a
is
result in
been granted.
Nearly
107
all
McCarthy
vs.
Martin
62
er,
Brown
vs.
so provided
by
Statute,
and
to
effect,
delay,
Sec. 6584 R. S. 0.
These conditions were held to be
indispensable to the appeal, and
costs."
123.
Adams
Contra
Neb. 541; 26 N.
losLux
vs.
W.
Thompson, 18
316.
now
vs.
Harlan, 13 O.
S. 485.
Job
vs.
THE LAW OF
338
STJEETYSHIF.
Where
is
furnished.^"^
defendant to damages.^^"
ISTo
upon
who
party
may
invoke
all
in-
plaintiff,
he
Macon &
"
ley, G. J. :
court of equity, or a
court of law in the exercise of equitable functions, may, and should
al-
as a condi-
is
not
a,
matter of
strict
dam-
an amount to be
gustain by rea-
enjoined, such
110
is
he has been
may
was not
entitled
statute
thereto."
This
fore
erative,
is
an injunction can become opand it is held that an injunction allowed without a bond is
valid if the bond is thereafter given
within a reasonable time. Meinhard
vs. Youngblood, 37 S. C. 223; 15
S. E. 947.
339
JUDICIAL BONBS.
is
the bond, or in
to
also signs
respond to
the
The United States Supreme Court has held " without a bond
payment of damages or other obligation of like effect,
for the
whom
party against
re-
he can make out a case of maliby reason of the bond, and upon
When
193.
It is only
^^^
ac-
crues.
No
finally
court, or
Meyers
vs.
120 U. S.
Hayden
W.
N.
"The
vs.
Vanderburgh, J.:
195,
some of
is
Vick,
20
tlie
the defendants
111
until it is
granted.
Upson, 40 0.
vs.
may now
S. 25, it
was held
damages accrues as an
incident to the allowance and issuance of the process, whether a bond
is filed or not, and that in case a
" It
bond with sureties is filed, as required by the statute, it is to be regarded sinjply as a further or addi-
the actual
tional
We
security
for
such
damages.
bond
is
The
of
junetion suit."
terial.
Asevado
vs. Orr,
100 Gal-
Gas Trust
Co., 14 Ind.
App.
erty of value.
See also
or of attachment, or of injunction.
"The
340
of
tiie
bond, as
it is
But a
amounts
a final determination as
want of prosecution
is
such
tion
cause."*
So
termination by the
whether the
it is
plaintiff
was
by the
plaintiff,
while not a
deto,
in finding that
he
court,
by the
is
But an agreement by
Where
it is
a waiver by
is
and
it is
originally granted,
bond.""
tory order of the judge, baaed upon
his own malicious, ex parte application and affidavit."
112 Krug vs. Bishop, 44 0.
S. 221.
see Yale vs. Baum, 70 Miss.
225; 11 South. 879; Mitchell vs.
Sullivan, 30 Kan. 231; 1 Pac. 518.
But
113
Penniman
Richardson, 3
La. 101; Whitehead vs. Tulane, 11
La. Ann. 302; Manufacturers' &
Traders' Bank vs. Dare, 67 Hun. 44
21 N. Y. S. 806; Kane vs. Casgrain,
69 Wis. 430; 34 N. W. 241; Dowling vs. Polaek, 18 Cal. 625.
The rights and liabilities of the
parties to the injunction bond are
fixed when it is determined that the
injunction ought not to have been
vs.
granted.
Berkey Co. vs. iSyivania'
Co., 97 Ohio St. 73, 119 N. E. 140.
N. Y. 646;
S.
9.
Eoach
vs. Gardner, 9
Gratt. 89; Mayor of East Lak vs.
De Vore, 53 So. 1018; 169 Ala. 237.
115 Large vs. iSteer, 121 Pa. 30;
15 Atl. 490; Prefontaine vs. Richards, 47 Hun. 418.
us Apollinaris Co. vs. Venable,
136 N. Y. 46; 32 N. E. 555. In this
case after the preliminary injunction was allowed, the plaintiff was
adjudged to be in contempt of court,
and as a punishment, the Court
directed that the complaint be dismissed and the injunction dissolved.
JUDICIAL BONDS.
final
341
missed,
it
Where
the
de-
is to
" It
was
dis-
issued, it is im-
injunction upon some matter arising subsequent to the commencement of the action and having no
relation to the merits, either directly or by inference, it 'would, we
think, be contrary to the natural or
reasonable
interpretaibion
of
the
until
the Court
the decision oi
It is not decided, and ought not to be decided,
that the injunction was im.properly
issued.
We think the plaintiff was
entitled to the injunction until the
decision of the case, and that there
has been no breach of the condition
of the bond."
1" Johnson vs. Elwood, 82 N. Y.
362.
after
342
is
Where
bond,
it
the injunction
is
dis-
by the
arbitration,
The agreement
of the
is
in effect a dissolution by
it is
and
it
&
S.
the case as to
final
bunal.
is
irreversible
If there
When
damages as may be caused the defendant by its allowance, and afterwards, voluntarily and without the
consent of the defendant, dismisses
tween the
parties.
It is true that
heard and
But whether
to the arbitrators to be
determined as a court.
they so heard the case or not,
whether they erred both as to the
their
judgment was to
be,
and
is.
it
has
own
by counsel
343
JUDICIAL BONDS.
until a final
was issued."'
194.
juris
be inoperative for
want
of consideration.^^^
remedy
Pierson
Contra
vs. Ells,
46
Hun
336.
he has
suffered
by reason
of
so
much
i"Ovington
250.
Contra
is
vs.
Smith,
78
111.
Gray
Alabama R. R.
defects in the
vs.
162
Ala. 262.
123 Clark vs. Clayton, 61 Cal. 634;
Kilpatriok vs. Haley, 6 Col. App.
407; 41 Pac. 50S; Bank of Monroe
vs. Gifford, 65 Iowa 648 22 N.W. 913.
Oohn vs. Lehman, 93 Mo. 574; 6
S. W. 26'7.
In this case the preliminary injunction was dism!issed
on motion, and on final hearing, the
case was dismissed. An appeal was
taken to the Federal Supreme Court,
but without supersedeas, and it was
held that the right of action on the
bond was suspended during the ap;
peal.
Bank
104 N. E. 928.
124 Carter
vs.
Mulrein, 82 Cal.
167; 22 Pac. 1086.
125 Lambert vs. Haskell, 80 Cal.
611; 22 Pac. 327.
344
but.
will be con-
The
words which are necessary to complete the sense of the instrument, and which are obviously left
clerical omission of
allowed
not
is
conclusive of that fact, and the sureties are not estopped from
But
issue.^^
it is
recital in the
Where
itself.^^^
195.
The
who by
sureties,
will
had no
Copeland
Cunningham, 63
vs.
Ala. 394.
127
Lambert
Haskell, 80 Cal.
vs.
was
issued with-
must determine
delhoffer, 133
Md.
128
111.
Harman
536.
Howe, 27 Gratt
vs.
676.
129
Adams
130
Hamilton
348.
131
vs.
State,
32
'
Williamson
vs. Hall,
0. S.
is
whether the
de-
pense incurred
in
the
proceeding.
190.
is
132
Robertson
vs.
ing the injunction had no jurisdiction over the person of the defendant,
one.
self
He must
jurisdic-
345
JUDICIAL BONDS.
Where
the
directed
is
against
the
no defense
to
make
the order.
in ad-
If,
law
in-
place
the
ing
of
domicile,
his
he
ultimately
be decided.
If
he con-
will
and disobeys
be
contempt.
its order,
and im,prisoned
fined
If,
he
for
it
the question
of its
validity,
then,
at
the
conclusion
thart
weight of
an
way
vs.
Randall, 66 Pac. Rep.
(Idaho) 938; Loomis vs. Brown, 16
Barb. 325; Walton vs. Beveling, 61
Hanna
111.
is clear
and
explicit.
Damages
249;
right
order,
sel,
to do.
He must resist the
and must, by himself or coun-
He
can not go
his way as though no sudi order
Littleton
McKenzie, 5 B.
vs.
vs.
Burgess,
Wyo. 58.
133 Cox vs. Taylor's Adm.,
Mon. 17 Hornback vs. Swope,
91
P.
832; 16
10 B.
8
Ky.
Chicago Gravel
Co.,
L. Rep. 533.
134
201;
37
Hayes
111.
135
Bank
Iowa 580;
136
243.
vs.
App.
Swan
19.
of
Monroe
31 N.
vs.
W.
vs. Gifford,
70
881.
Tinmions,
81
Ind.
346
Where an
injunction bond
conditioned to pay
is
and
all
costs
damages incurred,
in case the injunction is dissolved, the bond remains in force
until the case is finally disposed of on appeal, though the injunction was made permanent in the lower court and reversed
on appeal.^^'"'
plaintiff
is
all
up
set
as a defense to a suit
on the bond."'"
196.
Damages
resulting indirectly
not be recovered.
loss of
was shown
business
had
made a
order
the
injunction
that prior to the
large profit.^'^ Also where a defendant was divested of his
profits was, considered a
i37
it
13 Pac. 542.
1360
Contra
U.
Gal.
Houghton
149;
S.
301;
Oal. <511;
ise!)
Coat
Webber
Laanbert
vs.
Meyer, 208
vs.
Wilcox, 45
Haskell, 80
vs.
22 Pac. 327.
pjioenix
Co., 11,1
111.
540.
iss
Msick
vs.
Hibbard
son,
86,
Goocli, 15
McKindley, 28 lU.
215; Epenbaugh
Ky. L. Eep. 576.
111.
vs.
Lewis
vs. Collier,
47 So. 790.
347
JUDICIAL BONDS.
receiver.'^'
may
plaintiff
resulting
established one
and
definiteness/^'*'*
The depreciation
in value of property
is
Where
measure of damages
is
If the collection of a
judgment
interest.'''^
is
sale of land
on the pur-
used in seeking
is
other employment.^**
is
Hotchkiss
Lehman
vs.
Wood
138;
394; 19 S.
139a
193;
68
Lambert
wages."^
Hun
Heyman
46
31 Fed. Rep.
Hollander, 84 Tex.
vs.
W.
is
vs. Piatt, 8
McQuown,
S.
Cape
vs.
Henry
Meysenburg
South. 862;
170;
vs.
Landers,
vs.
W.
But
vs.
Schlieper,
48
Trezevant, 39
South. .573;
Dougherty
vs.
5
Dore, 63
12 Oal.
Bank
of Ky., 8 La.
vs.
Sliackle-
"s Colby
111
Oal.
Amis
555; 52 N.
vs.
1*2
Va.
263;
vs.
HaskeU, 80 Oal.
E.
vs.
i*i
107.
551.
Whiteihead
Syndicate,
bond
Meservey,
85
Iowa
499.
Thomas, 19
S. C.
230.
1**
MuUer
"s Wood
Atl. 476.
vs.
Fern,
vs. State,
3'5
Iowa
420.
66 Md. 6a; 6
348
Where
his right to the possession of land, the value of the use and
an element of
is
business can be
made
by the owner
is
the
in his
197.
Same
subject
Defendant's
expenses in procuring a
dissolution of injunction.
RigersoU, 78 Tenn.
injury.
requires
77.
14'
Cook
vs.
Chapman, 41 N.
J.
Wadsiworth
vs.
O'Donnell,
Ky. L. Rep. 837; HoUoway vs. Halloway, 103 Mo. 274; 16 S. W. 536;
Wood vs. State, 66 Md. 6l Rice vs.
;
Cook,
92
149
Cal.
144;
28
Pae.
Munn, 20'9 U.
Edwards vs. Edwards,
Hutchins
vs.
Every
litigation
and vigibut it has never been understood that a successful litigftnt was
of litigants to be diligenit
trouble.
S.
31
219;
246.
lant,
entitled,
attention which
Mm
for
it
adversary,
was necessary
for
111.
against his
as
to compensation
Ann. 666
South. 787
Curtiss vs.
to the law as
Y.
jury,
Contra Helmkampf
So Mo. App. 227.
223.
vs.
Wood,
348a
JUDICIAL BONDS.
dissolve
vacated.^''-
is
151 Ten.
Eyck
Sayer, 76
vs.
Hun
Bartram
27 N. Y. S. 588;
37;
vs.
R. R. Co., 141
158
E. 301; 68
Alliance
Graham, 69
W. Va. 1.
Tnjst Co.
299; 42 N.
S.
W.
In this
793.
was
in
sessiooi
in
order
to
damages,
sey, 32
Hun
253.
Affirmed 100 N.
Y. 641; 3 N. E. 797.
But
Graham, 69
E. 301;
vs.
Va.
see State
68
W.
Cal.
Costigan, 21 Col.
650;
Thomas
vs.
'!6,'):
42 Pac.
McDaneld, 77 Iowa
780;
New
852;
N.at.
Turnpike Co.
W.
301;
CoiTtra
Oliphint-
Mansfield,
vs.
Rountree,
74
1096;
E.
S.
11
Ga.
Vann, 158
vs.
N".
C.
it
is
128;
73 S. E.
801.
In Kentucky
injunction
when
held tliat
the
only relief
sought, and in fact gives the relief
the
if
is
can he had.
Tyler
55 S.
sel fees
1.
153
vs.
S.
(Ala.)
42 Kan. 39; 21
Chapman, 41 X.
ena
of
Rp.
Sou.
vs. Welles,
Eq. 152 2 Atl. 286 City of Helvs. Brule, 15 Mont. 429; 39 Pac.
J.
vs.
court
30
Ximoeks
456,
Me499;
vs.
W.
Hun
52 X.
5'5'5;
Stewunt,
vs.
tions in
Y. R. R. Co., 32
W. 301; Colby
Iowa
servey, 85
bride,
N. C. 128; 73 S. E. 801.
But
in-
Counsel
ilton,
Contra
Seese
Towa 187:
Taylor,
68
I'i
S.
vs.
X. W.
E.
vs.
Hani-
W.
920.
Northway, 58
2.58;
379;
67
State vs.
W. Va.
3486
ered.""
Where
lief
the injunction
is
is
re-
final
on the bond.^"
Where the motion
& N. R. R. Co.
W.
14'3
1043;
the
"There
no fixed standard by
is
Some
ured.
more
than
counsel
others.
demand much
More counsel
may
be employed than are neces'Wlien both client and counknow that the fees are to be paid
sary.
sel
of abuse.
to
essary
is
reference to
or an issue to
jury,
ascertain
a,
danger
noaster,
might be
the
nec-
proper
135
79 Oal.
U.
S.
United
bond given
in
States
.
governed, as to
is
con-
its
1;
Grouse
Syracuse
vs.
R. R. Co., 32
O'Neal, 22
Hun
Fl'a.
C.
&
N. Y.
497: Wittich
vs.
592; Underhill
vs.
Iowa 758; 42 N.
Arnold, 23 0.
Nietert, 78
Noble
vs.
W.
635;
S.
264;
211.
301;
of the
"'a
506.
1B4
Supreme Court
vs.
la.
497.
Recovery
dissolving
of
an
attorneys'
injunction
fees
was
in
al-
Court of
in a
filed
Wyo.
58.
^Willson
Contra
Oal.
Pac. Rep.
In
726;
MoEvoy, 25
vs.
Schening
514.
vs.
C5ofer,
South. 414,
12
that the
services
of
it
97
was
Ala.
slhown
counsel were
Iowa 48
Ady
W.
402; 57 N.
vs.
Freeman, 90 Iowa
Taite,
34d
JUDICIAL BONDS.
be recovered,
dismissed.^"
finally
is
The court will consider only the necessary counsel fees, and
where several counsel are employed, no recovery can be had,
except for such sum, and for such a number of counsel as seems
be reasonably necessary in resisting the injunetion.^^"
to
municipality defending by
annual salary,
is
vpho is paid an
attorney,
its
injunction, such
of the
its city
associate
counsel's
on
vs.
Pac. Coaat S.
101
Co.,
S.
Brown
Cail.
vs. Bald-
W.
win, 121
Mo. 126; 25
Noble
vs.
S.
863;
W. 1043; 143
It is
until
is
to obtain
fendant
secures
tlie de-
dissolution
on
Bemiis
vs.
Spalding,
1=8
re-
vs. Edelin,
Baehman, 1 10 Cal.
433; 42 Pac. 910; Cunningham vs.
Finch, 88 N. W. (Neb.) 168.
In Wallace vs. York, 45 Iowa 81,
counsel
prooeelding
and
prepared
filed
itihe
it,
but did not press the matter of dissolution, and the injunctioai was
dissolved at the final hearing, and,
ter of tlie
Ford
159
16 N.
But
in
the
in-
vs.
W.
W.
193; 17 N.
see
vs. Wallker,
74
Hun
910.
395; 26 N. Y. S.
844.
ICO
Neiser
App. 47
Thom,as,
vs.
Citizens Trust
46
Mo.
& Guaranty
W.
160O
Curtiss vs.
the defendant's
junction
damages.
la. 506.
fees
is
&
merits,
its
city
attorney in the
Nixon
vs.
Biloxi,
76
Miss.
works
161
187;
Mayor
vs.
So. 852;
Donahue
37
of Vioksburg, 54
99 Miss. 132.
Pac.
vs.
Johnson, 9 Wash.
Whiteside vis.
322;
350
issued,
is
siicli
and
charges are
it.^^^
Where
and the
case dismissed
plaintiff appealed, it
fees
sustain the
allow-
Attachment bonds.
198.
rise
three
to
classes of bonds.
Bonds
(1)
to procure
pay
damages
finally
plaintiff
is
if it is
Bonds
(2)
and restore
it to
Noyac Cottage
N.
W.
162
W.
670; 155
588.
Randall
Y. 293;
Cal. 433;
Carpenter, 88 N.
vs.
110
42 Pac. 910.
vs.
McDonald, 67
distinction la
made
was
relief;
the
38;
junction
Mo. 608
procuring
viritually,
preliminary
is liable
in-
in resisting the
Div. 335.
if^" Miller vs.
Contra
kin, 70
C.
Donovan, 13 Idaho
H. Albers Commission
W.
321;
Iowa 403; 30 N. W.
vs.
23'6
Ran-
677.
351
JUDICIAL BONDS.
sureties either to
pay the
plaintiff's claim, if
he finally obtain
by the
affect
the attachment,
still subsists,
the possession
'
which
be ap-
on his judgment.
plaintiff
to-
final hear-
ing."=
Bonds to discharge the attachment wherein the defendant agrees to pay such judgment as the plaintiff may fijially recover in the action, which bond is substituted for the property
(3)
and
is
There
is
same general
effect
and give
rise to similaj
fully obtained.
damages
as
he
In Indiana "
all
may
is
sustain
attachment."
In Maryland "
the plaintiff for
all
damages which
discussion as to
shown. **
1*'
common law
on the bond, in
And
also
is
provided for in
is
that
Wilson
Rep. 367.
vs.
" It
Outlaw,
Minor's
money
shall
be forthcoming to
352
statutes, the
defendant in attachment
bond without
first
much
and not
to de-
from the
part
avoided.
literal
The preponderance
of authority
it
can be
is
not be
199.
first
irregularities of exe-
The
and requirements
for
pro-
and the
who
plaintiff
and his
sureties
Why
'
may
find
the proceeding
wrongful and vexatious, that the sujing it out may be ruinous to his
credit and circumstances, although
obtained without the least malice
toward him
If the plaintiff,
under colour of such process, do, or
procure to be done, what the law
of
much
or
'
wrongful
act
'
has occasioned
it
may
have
which
shall
be
recovered
any suit
which may be brought against him,
against
for
the
plaintiff
at-
dis-
wrongfully
tachment,"
it
in
Smith
vs.
Maryland and
Mississip-
Holcomb
JUDICIAI. BONDS.
claiming
is
fects in their
own
which a bond
is
is
de-
proceedings.
353
to
^ter
the attachment
is
levied, it
if the
bond
will be bind-
bond
is
is
not followed,
nevertheless binding.^*''
So a mistake in the
court is
named
penalty
is
where the bond does not contain the requisite number of sureties
tions."'
defense."^
200.
Whether damages for malicious prosecution are recoverable upon bond to procure attachment.
malice, it is
of trespass
Wilson,
Ind.
144.
iTOWard
vs.
Whitney, 8 N. Y.
vs.
Johnson, 63 Mieh.
442.
I'lGibbs
30 N.
671;
172
W. 343.
Murphy vs. Montandon,
THE LAW
354
Ol-'
SURETYSHIP.
dis-
loss
incident to
It
its
is
detention.
recovery could be had on the bond both for the statutory penalty
It
liable
on the bond
is
at-
for
exemplary damages.^^*
to
impose a
liability
sufficient to
might
sustain,
on the
indirect,
tlie statute,
necessary bond.""
"3 Smith
vs.
Tenn. 235.
in
Texas.
Eakin,
Sneed
rule is applied
vs.
10 South. 391.
i7iTynburg
S.
been
The same
credit has
Duke, 73 Tex.
445; 10 S. W. 565; Moore vs. Wittenbeig, 1'3 I/a. Ann. 22.
See also Seattle Crockery Co. vs.
220;
his
vs. Elliott, 79
Mayer
Tex. 26;
show that
to
Eenkert
(Temii.) 456;
vs.
Cohen,
67
W. 734; Baldwin
Tex.
vs.
seriously
affected,
his
sensibilities
damages?
Or is he to be confined
and expenses incurred
by him, and such damages as he
may have sustained by a deprivation
of
to the costs
175 Pettit
(Ky.)
51.
650.
Mercer, 8 B. Mon.
"The extent to which
vs.
by him
ment, forms the chief subject of inquiry in this case. Has he a right
tiff
in
of the
pljiin-
is satisfied,
and
its
terms
se-
JUDICIAL BONDS.
201.
A
tiff
355
in the action,
is either executed directly to the plainor to the officer holding the writ for the
and provides for the return of the propawarded the plaintiff, or in default of
a return of the property, to pay the plaintiff's judgment, or in
some jurisdictions to pay the appraised value of the property
erty in case
judgment
is
M. Co.
To
vance the object contemplated.
impose an almost unlimited liability
on the security in the bond, sufficient to embrace every possible injury that the defendant might sustain, would be in effect, to defeat in
a great measure, the object of the
statute, by rendering it difficult, if
not impracticable, for the plaintiff
to execute the
necessary bond."
Blakeley's Trustee vs. Bogard, M3
Ky. 377 13fi S. W. 616.
See also McClendon vs. Wells, 20
S. C. 514; Commonwealth vs. Ma^nolia Villa Land Co., 163 Pa. 99:
29 Atl. 793; Elder vs. Kutner, 97
Cal. 490; 32 Pac. 563; Plymouth G.
tiff,
Schunack
vs.
vs.
80 Atl. 290.
Jacoby, 23 0. 8.
vs.
"7 Alexander
3S8.
its
Schunack
356
Where by mistake
the
for the
able."^''
A redelivery bond,
is
alty,
bond
an attachment is a final
and is a substitution
of the security of the bond for the lien acquired on the property. A motion to dissolve the attachment is no longer necessary after the filing of such bond and if such motion is pending,
the bond operates to dismiss it, since the attachment being
to dissolve or discharge
113.
181 Cortelyou vs. Majben, 40 Neb.
512; 59 N. W. 94.
182 Edwards vs. Ptomeroy, 8 Col.
254; 6 Pac. 829.
i82<i
Jones
vs. Short,
101 P. 209;
S3 Or. 525.
iszii Jones vs. Short, 101 P. 209;
93 Or. 525; Bnimiby vs. Barnard,
60 Ga. 292.
i82eCreswell vs. Woodside, 16 Col.
Jones vs.
App. 468
63 Pac. 330
Short, 101 P. 209; 53 Or. 625.
;
JUDTCIAL BONDS.
dissolved
357
can operate.
The obligors on such bond are bound unconditionally to perform the judgment of the court, and they constructively admit
the validity of the attachment, and will' be bound whether the
the cou-t
nullity
553.
By
may
Wis. 88.
The execution of a bond to discharge the attachment releases the
sureties upon the original attach-
Bick
all liability.
555.
184 Pacific
National Bank
v.
Mix-
final
judgment in any
suit,
action,
authorized by law which would warrant its discharge upon a proper aipplication made therefor.
As the
purpose of the bond is to dissolve
an attachment, its due execution implies a waiver both by the defendan*
and
larities.
"
35S
substitution of a
against the
as co-defendants it
was
and the
sureties released/'"
When
203.
to
procure an attachment.
was
rightfully
is
is
is
a breach of
the bond.
The question
as to
what amounts to
a determination of the
bond given
in
of the bonds.
It has been strongly contended that the term " wrongful
it is
shown
ed by
ment
itself.
Carpenter
vs. Turrell,
Mass.
450,
lows that
in
could be
iiojie
Bank
137.
iss
Richards
101.
is<)
Furness
vs.
Read, 63 Md.
359
JUDICIAL BONDS.
merits, or
where there
is
mert;ly a
plaintifl
at-
tachment."'
wrongful attach-
ment can not he inferred from a volimtary dismissal of the action,^*' and that the mere fact that the attachment has been dissolved does not establish
it is
edy as he
is
The
at least
is
is
wrongful,
765.
The Court
meant by the term
"What
is
to
it,
is
Was
form of the
which the
proceeding, on account of
ly to provide
sons
a,
remedy against
who should
per-
of another
cient
that,
the attachment,
omissions,
is
irregularities
or
infor-
process
may
have committed in
its
ed to
it
without
sufficient
vs.
ground."
Hannan, 87
Petty v,
Lang, 81 Tex. 238; 16 S. W. &99;
Blanchard vs. Brown, 42 Mich. 46
W.
art, 37
isa
27; 66 N.
i9o
Ante
W.
1020.
Sec. 193.
'
360
There are
also
plaintiff, for
an
at-
if the plaintifi
are
no presumption of wrongful
offi-
suing
out"^
An
formal.
had been
be strictly observed in
An
afl&davit is equally
as if the affidavit
all
proceedings to which he
than a technical
is
is
a party.
wrongful in more
re-
he thereby
is
deemed
essential to
on the
an action on the
bond."*
It is
with
effect is liable
where the
No
action
even though the attachment has in the meantime been sustained.^"^ But action can be prosecuted upon the
bond to procure an attachment whenever it is finally determined
that the writ is wrongful. This may occur before final judgsition of the case,
192
11.
198
Harger
vb.
Spofford,
46 Iowa
"
App. 142.
i95 Hansford vs. Perrin, 6 B. Mon.
( Ky
505 Farris vs. Matthews, 149
Ky. 455; 149 S. W. 896.
.
JUDICIAL BONDS.
361^
ment on the claim, and such right arises, even though the judg^'"'
ment on the claim is in favor of the plaintiff.
Where the bond is conditioned that the plaintiff shall respond
in damages, if
he "
with
effect,"
is
judgment in
any adjudication upon the at-
premature.^^'
Such holding is
exceptional, and the general rule is that a final judgment in
favor of the principal is an afiirmance of an attachment.^*'
The sureties upon a bond to discharge an attachment are con-
204.
Good faith of the plaintiff, or probable cause for attachment not a defense in actions upon bonds.
Though the
plaintiff acts in
attachment
is
is
any
it
justification of a
lieve that
affi-
davit"'
Tynberg
409; 13 S.
W.
vs. Cohen,
76 Tex.
315; Offterdinger vs.
920;
Harbert
vs.
Gorraley,
vs.
5 N. E. 699.
199
Co.
vs.
(Okl.)
262; 24 N. E. 262.
sustaining
the
attachment,
it
can
Pac.
32
Abraham, 22
202
vs.
Churchill
vs.
456.
vs.
Hutchinson,
643
Carothers
;
Gardner, 34 La.
Kutner, 97 Cal.
vs.
563;
III.
Alexander
Ala. 825
820.
926.
MoDaniel
Rep.
2oi
issSannes
vs.
Mcllhenny,
138.
Sec. 3887,
Iowa Code,
63
Tex.
362
he has reasonable cause for belief that the grounds for attach-
ment
existed.'"'"
205.
It is not
to question
cially
the
facts
rests
were
judi-
even though
Whether the
dis-
it.
upon which
bond.^*
its
judgment
upon sureties.
show by way of
The
is
as to the
""^
defense
it to
the defendant,
Nordiiaus
54
Peterson,
vs.
>,.
\V. 280.
204 Bennett
vs.
Southern
Bank,
Vurpillat vs.
Zehner, 2 Ind. App. 397; 28 N. W.
Mo.
61
App.
297;
556.
vs. Trager, 39 La. Ann.
South. 525 ; Jaynes vs. Piatt,
47 0. Si 262; 24 N. E. 262; Goebel
vs. Stevenson, 35 Mich. 172; Guthrie vs. Fisher, 2 Idaho 101; 6 Pac.
Ill; Hoge vs. Norton, 22 Kan. 374;
Jerman vs. Stewart, 12 Fed. Rep.
266; Huff vs. Hutchinson, 14 How20B
292 ;
Fusz
ard 586.
An amendment
of the complaint,
not setting \ip a new cause of acbut merely increasing tlie
tion,
amounts demanded for breach of
re-
obli-
959,
(1921).
Contra
Sloan
vs.
iLangert,
363
JUDICIAL BONDS.
Exoneration of sureties in attachment proceedings.
S206.
deliver, the
it is
not a
suffi-
tell
the plaintiff or
a delivery of a
cient
the officer
is.^
in the
is
^^
Where
as a
bond
delivered, the
is satisfied,
there
bond
is
is
is
executed,
exonerated.^^^
bond
party, a prior
is
new
exonerated.'^'
new party
amendment, without
is
is
added by
Amendments
change
An
the,
209Chapline
Ark.
210
vs.
Robertson,
when the
44
2"Christal
vs. Creager, 13 B.
Mon.
215
262;
58 Cal.
Kimball,
341.
211
Imp.
212
Mass. 565.
213
Tucker
vs.
White,
Allen
Adams
vs.
Kelly,
88 N. Y.
er
285.
202.
Bland
vrrit
vs.
Jacoway, 34 Ark.
142 Mass.
124;
N. E.
728.
Bank
vs.
liable
for
claimed
the
by the
increased
plaintiff,
damages
it
was
amount
claimed.
364
the consent of the parties, but without the consent of the sureties,
is
and a
find-
An
'^"
is
available in
any court
to
which the
case goes
tions of the
Where
^"'
is
against
him
appeal bond."""
216
Simeon
vs.
Cramm,
121 Mass.
492.
2" Clark
See
also
vs.
Jewett
vs.
Crane,
35
Seavey
vs.
219
526
222
203.
62.
312;
221
Barb. 208.
218
Gilmore
vs. Crowell,
67 Barb.
351.
16 N. W. 137.
Barton vs. Thompson, 66 Iowa
24 N. W. 25.
Chrisman vs. Rogers, 30 Ark.
JUDICIAL BONDS,
365
|208.
The actual
loss of the
may
attachment
and the
loss of the
use of the
bills
include
property.''''*
in securing a dissolution of
may
of the officer/^'
This
own
time,^^ or travel-
^'
can be recovered.
fendant in attachment
sequence,
and not
is
Smith
Contra,
vs.
Co., 76 S. E.
481
American
160 N. C.
674.
226
235; Byrne
Ann. 6.
228Higgins
vs.
Gardner,
33
La.
62 Ala.
case recovery was
souglit for loss resulting from a demoralization of plaintiff's workmen
during his absence attending the ait20"
Tn
tachment
vs. Mansfield,
this
suit.
Damron
Sweetser, 16 111.
App. 339; State vs. Shobe, 23 Mo.
vs.
App. 474.
Contra Smith
Bonding Co. 76 S.
Atl. 697.
American
481; 160 N. C.
va.
ll.
574.
227
Bonding
vsrrong-
Floyd
vs.
Hamilton,
33
Ala.
366
may
the defendant are tied up by garnishbe had for interest on the fund while it is
detained.^'"
Where
it
Where
the property
is
be liable
Reasonable attorney fees paid in resisting the attachment
may be recovered as damages.^^* Such fees must, however, be
actually paid or contracted for before they become a subject
of damages.^^* It is held that the giving of notes for counsel
fees is sufiScient payment to justify a recovery.^^= Counsel fees
incurred in the trial of the case on its merits are not recoverable on the bond, even though the result of the trial is a dissolution of the attachment.^^'
are
Hun
52
vs.
818.
230 Fourth Nat. Bank vs. Mayer,
96 Ga. 728; 24 S. E. 4'53; Green
Fruit Co. vs. Pate, 99 Ga. 60; 24
S. E. 455 Strong vs. Hasterlik, 146
111. App. 346.
231 Tebo vs. Betanoourt, 73 Miss.
;
Hayman
Hallam, 79 Ky.
vs.
389.
W.
362.
Contra By
statute
in
Iowa.
Peters va. Suavely-Ashton, 122 N.
W. 836; 144 la. 147.
Contra Heath vs. Lent, 1 Oal.
Woodmansee, 34 Iowa
116.
Contra
Plymouth
Gold
Me
Pac. 125.
State vs.
235
Mining
35 Mont.
vs. Mass.
N. Y. S.
Okl. 462;
464.
236
State
vs.
Heckart,
va.
62
Mo,
Seattle Scan-
JUDICIAL BONDS,
jurisdiction of the defendant is obtained solely
Where
attachment, as
would seem
there
367
to be a special
by the
as
is seized,
damages
^^'
Keplevin bonds.
209.
An
action in replevin
is
tained
The
by the writ.
and this
is
is,
And
it is
claims
who
asserts
it
adjudged wrongful.
bond
action of replevin
is
jurisdictional,
is
serve
officer to
in force the
except
bond.'''*
by a deposit of money
23''
Buckley
vs.
Van
Diver,
70
IW
Talbnan,
vs.
N. Y.
American Surety
Div. 240.
S.
639;
Co.,
Tyng
48 App.
respect, to
Frost
vs.
Jordan,
37
In Tennessee the
42;
Code provides
solvency of the
the
Contra
573;
Court
may
order
by the imprisonment
488.
Oummings
vs.
ia
Gann, 52 Pa.
368
210.
That the
(1)
dili-
gence.
That the plaintiff will restore the property of the defendant, or pay its value in money, in case it is determined that
(2)
That the
(3)
plaintiff will
he
suffers
The
officer
usually
is
on
own bond
his
all respects
in replevin,''*^
made
may
discretion is given
by
statute to
the officer the court will not interfere to control the discretion.
A bond
by law
sum than
Where the
is
that required
qualifications
of the sureties are not such as the statute requires, the bond,
though irregular,
211.
is
not voidable.
^*^
al-
^''^
void.
mere nonconformity
to the statute,
Hieklin
46.3;
241
424
Hughes
Hall
wanting
242
Bulmer
Jenkins,
vs.
.3
How.
Pr. 11.
243
Freeman
vs.
Davis,
Mass.
200;
1.
C.
244
245
Coverdale
vs.
vs.
etc.,
is
^*
Nebraska,
vs.
Bank, 8 Neb.
as
Newsom, 86 N.
Ind. 503.
vs.
Alexander,
SB
369
JUDICIAL BONDS.
^^^
been repealed
stituted has
What
212.
the bond
invalid.
is
failure to prosecute
is
or procurement of the
fault
is
Even
liable.^*"
the
cause,
a dismissal
is
plaintiff.-*'
lation of the
is in-
is
a breach
of the
bond.^^"
is
plaintiff,
Caffrey vs.
512.
Dudgeon, 38 Ind.
Fahnestoek
Contra
vs.
Giltam,
111.
217
eute
69.
Hicks
Mendenhall, 17 Minn.
held that the question of
vs.
It is
the unconstitutionality
47'5.
oi the lajw
under which the writ was issued;
cannot be raised in an action on the
bond.
Magruder vs. Marshall, 1
Blackford 333.
248 Humphrey vs. Taggart, 38 111.
228; Elliott vs. Black, 45 Mo. 372;
Mills vs. Gleaaon, 21 Cal. 274 Berghoff vs. Heckwolf, 2G Mo. 511.
240 Wiseman
vs.
Lynn, 39 Ind.
250; McKey vs. Lauflin, 48 Kan.
581; 30 Pac. 16.
It has been held that where the
action is dismissed without prejudice for want of prosecution on motion of the defendant and no judgment for return or for damages is
entered, the defendant thereby loses
his right of action on the bond.
Howard vs. Wyatt, 145 Ky. 424;
;
140 S.
W.
Contra
655.
Seaboard
Hewlett, 94 S. C. 478
the
action,'
and
this
means
370
trial,^" or
tihe
condition as to
If the action
is
it
some defect
in the
bond.=='
No
and
bond
is
finally determined,^"*
if
the case
is
court.^
213.
Sureties
are
concluded by the
final
tjie
defendant
is conclusive
The same
where the defendant gives a redelivery bond and is
defeated in the action, his sureties are concluded by the judg-
bond.^""
rule applies
ment.^"
Hardee, 1 Thomp. &
557; Flannigan vs.
Erwin, I7'3i 10. App. 452.
262 Burkle vs. Luee, 1 N. Y. 163.
253 Wood vs. Coman, 56 Ala. 283;
Smith vs. Whiting, 100 Mass. 122;
Boom vs. St. Paul, etc., 33 Minn.
253; 22 N. W. 538; Elliott vs.
Black, 45 Mo. 372; Waddell vs.
Bradway, 84 Ind. 537; Little vs.
Bliss, 55 Kan. 94; 39 Pac. 1025.
2B4 iScott vs. Elliott, 63 N. C. 215
Wright vs. Marvin, 59 Vt. 437; 9
2B1 Pierce vs.
Cook
(N. Y.)
Atl. 601.
266
vs. Blye,
order was made requiring the plaintiff to return the property or assessing damages' in default of a return. It was held that the sureties
were not liable for the value of the
property. "Under the letter of this
bond, no judgment was ever entered
that the property should be returned, and until that was done,
there could be no liability on the
part of the sureties." Munding vs.
Michael, 10 0. C. C. 165.
257 Kennedy vs. Brown, 21 Kan.
171.
The view that the judgment
against the principal is conclusive
the
on
sureties was tersely stated
in Bierce vs. Waterhouse, 219 U. S.
"The
320, wherein the court said:
issue as to whether the value of the
property redelivered to the defendants was greater than alleged in
the plaintiff's affidavit and claimed
in the original complaint, as well
as whether the amendment of that
complaint was such as to change
the cause of action, were issues
made and decided against the
principal in the bond upon which
the sureties wer bound and cannot
be relitigated, in the absence of
fraud and collusion, by a surety
when sued upon the bond."
371
JUDICIAL BONDS.
the action.^""
An
bond
in re-
may
plevin
214.
is
the defendant
Where
action
may
if it is finally
loss.
determined.
If
no recovery
is
had
where the
damages for unlawful de-
must be
Estey
vs.
259
SI
Denny
vs.
Reynolds,
24 Ind.
260
Smith
State Bank
vs.
Martin,
In Stevens
104 Mass.
that the damages
for unlawful detention must be assessed in the replevin action and not
in the action on the bo.nd.
Thia
328,
248.
First
^^oa First
Harmon, 40 Midh.
645.
it
vv'as
vs. Tuite,
heW
372
In a
JUDICIAL BONDS.
suit
amount found in the replevin suit to have been the value of the
property where and when it was taken, with interest thereon
from the date of the finding in the replevin suit. It is not
competent for the obligors in the bond to show that the property was of less value than the amount stated in the writ of
replevin and the bond; but it is competent for the obligee to
show that the value was greater. The finding in the replevin
suit as to the value of the property where and when it was
taken is competent and conclusive evidence, as against the
obligors,
lof
such value.^^^
order
money
vs.
Web-
(Ariz.)
712.
vs.
373
JUDICIAL BONDS.
Interest
it,
may
may
named
The
in the bond.^
affidavit of replevin is
prima
and
satisfied, or for
in fofce,^'" or
replevin
35.
s's
Wyman
384.
vs.
Robinson, 73 Me.
the absence of malice, want of probable cause or bad faith on the part
of the plaintiff, attorney's fees and
expenses Incurred in defending the
where the
some cause is no
App. 363.
See
WaAerhouse,
219 U.
^^
Martin
vs.
Thomas, 24 How.
31'6-
^'
Casper
vs.
45 Mich. 251; 7 N.
,
W.
816.
Blackburn
vs. Crowder, 108
Ind. 238; 9 N. E. 108.
^''
374
sureties on re-
plevin bonds, but are such as apply to any form of bond given in
is
to
may
be pleaded in mitigation
by the
co-partner,
and the
latter failed to
damages, that the partnership was insolvent and that its affairs
had not been wound up, and that the creditor's execution would
^^^
therefore have availed him nothing.
So also, where the original action failed for some cause not
involving the merits, such as a premature starting of the replev-
in
these facts
suit,
may
Where
erty returned,
It is
may
be set
if
off
added in good
final action,
in mitigation of damages."^*
plaintiff
Mo. App.
13S.
In Union Trust
Co.
vs.
Shoe-
Petroleum
vs.
92
N E
E. 544.
the
re-
m-
339
Ry., 8
faith,
"* State
"^
vs.
W-.506.
fShelvm-Carpenter
JUDICIAL BONDS.
^"^
turn the property.
But when
375
Executors, administrators or guardians might with some propriety be classified as public officers.
of a public character
officers
of the court,
but at
all
own
ofii-
own
interpretation of
of the court.
which do not
officers
offi-
duty pointed out by the Statutes, and also to obey the orders of
the court.
a trust,
217.
way
in
tion
of
2''5 Suppigej
vs. Gruaz, 13i7 111.
216; 27 N. E. 22; Capen vs. Bartlett, 153 Mass. 346; 26 N. E. 873.
" Caldwell vs. Jans, 1 Mont. 570.
THE LAW OF
376
bond
is liable
STJEETYSHIP.
If he
may
be,
and
sureties,
and notwith-
if he mistakes the
must abide the judgment of the court, and such judgment may be enforced by recourse upon his bond.
law, he
Administration trusts in
is
many
This
is
officers
trustee
must be held
which a prudent
An
to the full
whom
it belongs.
his
own
regu-
The
fidelity
affairs.
He is clothed vdth
no
is
statute.
and whether
the
it sub-
nevertheless a duty
fortunate in
277
499.
278
101
create
18 Atl.
1.
its
consequences, but
JUDICIAL BONDS.
377
and the bond will be liable for the failure of the administrator
the allowance of unjust claims against the estate,^'" aa
to resist
where
suflBcient
pay
fusal to
a claim
a conversion of the
So
the
funds to his
own
re-
use.''^"
also,
is
and
the heir need not first exhaust the funds of the estate. "^^
same
equivalent to
is
The
The
failure
whereby the
assets,
funds of the estate are exhausted, leaving unpaid claims entitled to preference, raises
Like-
wise the
class
an
shown
of the assets
the
which the
sureties
upon
Where
4 Atl. 679
which govern
111.
a'o
Smith
3 S. E. 406
78 Ga. 654;
Gold vs. Bailey, 44 111.
vs. Cuyler,
;
Pence
vs.
Thayer
vs.
Weber
375; 1 N.
But
see
W.
vs.
North, 51 Iowa
vs.
;
Reister,
65
Ralston
vs.
Robinson
vs.
Hodge, 117
Stanton
463
Md. 278
Wood, 15
159.
282
Choate
vs.
Jacobs,
136 Mass.
297.
Rocco
vs.
Cicalla,
59
Tenn. 508.
283
Worthy
vs.
Brewer, 93 N. C.
Webb
Atl. 612;
652.
Mass. 222.
281
Shriver
Contra
491.
280
made no
Mass. 226.
vs. Gross,
McKim
vs.
79 Me. 224; 9
Bartlett,
129
378
would
lie
for which
on the bond.**"
The scope
218.
it
of the administration
bond covers
all assets
and
The law
except
when
restricted
The undertaking
all
by words of
come
into
Even though
bond.^*'
Thus, where
it
estate as required
The
own
assets to his
count for
estate;
it
no way
was
691.
statute in
By
the
to the
bond was
***
83 Wis. 394;
W.
53- N.
that
all
and
use, in
Massajohusetts
an,
actually
Admr., 46 0.
deceased
estate.
622.
28' Choate
vs.
Arrington,
116
Mass. 552; Bellinger vs. Thompson,
Oregon
Pac.
40
Pac.
26
714;
320; 37
229; State vs. James, 82 Mo. 1,09.
But see Parmele vs. Brashear, 16
La.
(0.
S.)
72.
The
liability
1087.
=S8
Foster,
Admx.,
S. 26;
vs.
Wise,
16 N. E. 687.
JUDICIAL BONDS.
379
The sureties upon the bond will be. liable for the conversion
by the administrator under color of his office,
but which are not properly assets of the estate, and which he
would not be bound to collect and distribute.^*"
The general administration bond covers all the duties of the
of funds collected
If he is charged
offlcer in reference to the land of the decedent.
by the will with the care and management of the real estate, or
with the sale of it to pay debts or legacies, the sureties will be
liable for misappropriation or maladministration, notwithstanding the Statute gives no authority to the officer touching the
land.^""
executor or administrator is also a debtor of the esamount of his debt at once becomes an asset in his
hands, and he must account for it on his bond,^^ although in
some jurisdictions the rule prevails that the bond is not liable
If the
the
tate,
when
ministered."
Hun 504; 16
N. Y. S. 371; Wiseman vs. Swain,
114 S. W. 145..
But see Warfield vs. Brand, 76
Ky. 77; Orrick vs. Vahey, 49 Mo.
428; Pace ys. Pa-ce, 19 Fla. 438.
The tendency of the later oases
is toward relieving the surety from
liability in those cases where the
administrator has misappropriated
funds whic'h are not strictly assets
The
sureof the
principal only in his representa;tive
capacity, and not in his individual
ties
guaranty the
Probate Oourt
capacity.
liams, 73
A.
Campbell
vs.
Co.,
fidelity
55 So. 306
382;
30
vs.
Wil-
I.
144;
R.
Bonding
American
;
Peo-
K E.
Ind.
287; 63 N. E. 471; Salter vs. Sutherland,
1070.
123
Mich.
225;
81
N. W.
life
in-
surance was
the
which
sale.
12
Mass.
380
if
his
office,
the
the rule.^*
collection of rents accruing upon lands of the decedent
the right of the heirs, and the collections do not become'
assets in the hknds of the administrator, and the sureties are not
The
is in
liable for the failure of the officer to account for such rents.^""
bond.
stitute a
breach of his
trust.^''"
It is held,
the court has allowed attorney fees and entered an order for
their payment that it becomes a charge against the estate, and
is
All the bonds given during the continuance of the trust are
cumulative.^"'
Where
process.
moneys
293 Choate
Thorndike,
138
vs.
Mass. 371.
='>* Campbell vs. Johnson, 41 0. S.
588.
295
22 N. E. 969; Smith
Ky. 21; Hutcherson
Grat. 220; U. S. F.
Pigg, 8
G. Oo. vs.
vs.
&
298
Taylor
vs.
Mygatt, 26 Conn.
348.
298
543;
Piokens
Dugger
vs. Miller, 83 N. C.
vs. Wright, 51 Ark.
JUDICIAL BONDS.
381
new
bond,
it
debts, does
A bond
is
not
cumulative with the bond given in the jurisdiction of the principal administration,
liable to a creditor
principal jurisdiction.'"^
As
220.
to
on the administra-
tion bond.
If the law
claim,
step in the
payment, an action
may
payment of
a legacy
cer to
action
may
it
offi-
and an
S.
Grat.
Ind.
W.
is
262;
Ala. 265.
istrator
and became
that
his
new bond,
But
see
Powell
vs.
Powell, 48 Cal.
234.
soi
Probate
Court
vs.
Brainard,
48 Vt. 620.
soa
Gould
vs.
may
held
the
distributees
election,
istration
P^
t
Jones
t
vs. Irvine,
^ i,^^,
23 Miss. 361.
382
trator to
so
is
first
make
may
be brought without
in ofiice the
The
its
no action can be
is first
administrator.
under no obligation
an accounting,
sureties are
to render
accounting.'"''
instituted
determined
until reduced to
officer.'""
it is
303
vs.
49 Vt. 380.
It has heen held that where an
estate of a deceased person is in
process of settlement in the Probate Court and there has been no
refusal by the administrator to
make a final accounting, that an
action cannot be maintained on the
bond until there has been an accounting in the proper tribunal.
Hudson vs. Barratt, 62 Kas. 137;
61 Pac. 737.
304 Balch vs. Hooper, 32 Minn.
158; 20 N. W. 124; State vs. PorMo. 356; Fossbender vs.
ter,
9
American Surety Co., 122 N. Y. S.
442; Tofler vs. Kesinger, 80 Kan.
549; 102 Pac. 1097.
305 Judge of Probate vs. Couch,
59 N. H. 39; Young vs. Duhme, 61
Ky. 239; Dinkins vs. Bailey, 23
"
Miss.
Cal.
maladministration without
judgment
of
prior
a.
devastavit.
Alaska 121.
307 McCalla
201;
vs. Patterson, 57
Commonwealth
vs.
Ky.
Dill,
Eep.
556;
Governor vs.
Chuteau, 1 Mo. 771; Hood vs.
Hayward, 124 X. Y. 1; 26 N. E.
Phila.
331.
5
vs.
State,
383
JUDICIAL BONDS.
221.
sureties upon the bond of an administrator are concluded by judgment against the principal.
The
competent
jurisdiction
against
upon
the
principal
If such
his hond.'"^"
officer's
is
conclusive
judgment or
accounts the
it.'"*
Such judgment
is
is in
the principal.^"'
collusion
It is
istrator is only
prima
Where an administrator,
in attempting to
make a
contract
judgment
to be
aoToShipman
vs.
vs.
vs.
West, 80 N. Y. 139;
Clark, 87 N. Y. 572;
Harrison
Power
vs.
Miss. 476.
309 Crouch vs; Edwards, 52 Ark.
499; 12 S, W. 1070; iSabrinos vs.
Chamberlain, 76 Tex. 624; 13 S. W.
634; Proctor vs. Dicklow, 57 Kan.
119; 45 Pac. 86.
iStee also U. S. F. k G.
Co. vs.
Russell, 141 Ky. 601; 133 8. W.
972.
310
311
State
vs.
Annett
vs.
256.
312 Kearney vs. Sascer, 37 Md.
264; Seat vs. Cannon, 20 Tenn. 471.
3l2o Curtis vs. National Bank, 39
0. '9. 579'; Thompson vs. Mann, 65
W. Va. 648; 64 iS. E. 920.
384
222.
Any
and
is
who
is
the
payment becomes
due,
law
and
make
will
istrator.
Contra
People,
^11.
S. F.
15fl 111.
Rardin, 171
111.
&
G. iCo. vs.
The
vs.
92;
22 N. E. 969.
315 Rutter vs. Hall, 3il 111. App.
647; Forbes vs. Keyes, I'QS Mass.
38; 78 N. E. 7'3i3.
316 Hubbard vs. Ewing, 6.3 Tenn.
Riggin vs. Creath, 60 O. S.
404
In this case
114; 53 N. E. 1100.
;
the distributee accepted the individual check of the executor and gave
a receipt in full held, Sohauck, J.
"In lieu of payment in cash or by
the check of the executors upon the
trust fund, she voluntarily and for
purposes of her own accepted the
individual check of Riggin upon a
different bank for the balance, and
in consideration of that check and
the advancements previously made
to her, she executed to the executors, for the purpose of their settlement, her receipt for the entire
;
ilistributive sbare,
from which
it re-
judge of
its sufficiency,
bound by her
election,
and she
and es-
But
Va.
see
Hoge
vs.
Vintroux, 21
W.
1.
3i7 Ruffin
vs. Harrison, 81 N. C.
208; Bell vs. People, 94 111. 2'30;
State vs. Gheston, 5il Md. 353;
Odell vs. Howie, 77 Va. 361.
But see Smith vs. Gregory, 36
385
JUDICIAL BONDS.
an executor conforms
If
acts will be
aside,
and
deemed
to the
requirements of the
is
will, his
thereafter set
was
nuUified.'^^
Who may
223.
an administrator is removed or for any other cause the ofbecomes vacant, the common law confers upon his successor
If
fice
An-
of
it to the guardian
in his acount as administrator. But he did
Just the contrary to this.
He refrained from charging himself with
it as guardian, and thus, it would
seem, prevented its forming any element of recovery against him in, the
former action against him and his
sureties on the bond as guardian.
We are of the opinion
that these unequivocal manifestations of intention on the part of
the principal defendant, Wilson, effectually rebut the legal presump.
administrator."
In Potter vs. Ogden,
136 N.
Y.
See also Foster vs. Commonwealth, 35 Pa. 148; State vs. Anderson, 84 Tenn. 321;
Hoffman,
Admx.,
386
to the unadministered
f.itle
assets.
property as remains in specie and the debts due the estate from
the debtors of the decedent.
verted to his
The
conferred by statute.'^"
sureties
maintain
action,^^^
co-administrator
who has
is
specially
tlie
other administrator
conversions of his
as
to his sureties
upon
bond.'^^
Bonds of guardians
224.
Scope of
liability.
fund and of
and he
is
office;
which the
trust im-
poses.
United States
vs.
Walker, 109
I.
The administra-
tor de bonis
non
is
in
specifically authorized
many
,-,'
E. 430; Banks
Dockray, 78 Me.
1^^}^
111. App. 502.
,,,
322
743;
by Statute to
724.
vs. Speers,
, .,
103 Ala.
Commonwealth
vs.
Rogere, 53
^r-Q
p^^
States
436;
''"
Sperb
vs.
MeCoun, 110 N.
^^ ^- "?; ^*^ ,
^'^l'
See also Nanz vs. Oakley,
j;^
84- 24
E 306
,
Y.
,on
120
387
JUDICIAL BONDS.
If he
trust
to the
able.'"
The guardian undertakes the responsibility for all the propward, whether derived from the estate of
the ancestor of the ward or from any other source,'''" and the
erty belonging to the
money
an executor or an administra-
tor,'""
of the
con-
12
vs. Boyflton,
138; Lee vs. Lee, 67 Ala.
406.
In this case it was held that
the sureties are liable for loans
made without security, even though
the borrower was entirely solvent
at the time the loan was made.
See also Bell vs. Rudolph, 70
Miss. 234; 12 South. 153.
Richardson
Allen
tion proceedings.
119 Va. 630, 89
326 Arete,
Sec.
Mann
S.
K.
vs.
235.
162.
328
Miss. 648.
Sb. 080,
it
was
guardian, while
first bond, conhis ward, and
of the first bond,
and the giving of a new bond,
though then solvent and able to
pay the amount converted, neglected
to pay such amount to himself
as guardian for the use of the ward,
there was a breach of the second
bond as well as of the first.
Morris
Pac.
wealth
vs.
Co.,
16 Pa.
Southern Surety
Contra
Mann,
897.
63;
vs.
Bur-
N.
W.
6'50.
388
assets in the
offi-
liable for
Money paid
its
received.^'"'
majority,
although paid in for the accoimt of the ward, does not, in case
of conversion, become a charge against the sureties/'"^
225.
Release
of sureties on
the bond.
The duty
of the guardian
is
not ended
attains
majority, and the sureties continue liable for the proper settlement and adjustment of the afPairs of the ward even though the
business transactions extend beyond the time of the minority.
The delay
of the
ward
set^
tlement will not relieve the sureties for defaults committed after
the term of minority, since the sureties have the
the
as
ward
much
to
same
right as
ovm
loss is
ward.==^
It is, however, the duty of the guardian to make settlement
and pay over the money in his hands to the ward as soon as he
attains his majority, and a failure to do so is of itself a breach
release
paid over
when
it
had not in
capacity.
Stee also Swisher vs. MoW'hinney,
64 0. S. 343; 61 N. E. 1149.
330 Sargent vs. Wallis, 67 Tex.
483 ; 3 S. W. 721 ; Mattoon vs. Cow-
This rule in
79 Mass. 387.
limited to
jurisdictions
is
cases in which the guardian is solvent at the time of his appointmenit.
Black vs. Kaiser, 91 Ky. 422; 16
S. W. 89 Johnson vs. Hicks' Guardian, 97 Ky. 116; 30 S. W. 3; U. S.
F. & G. Co. vs. State, 81 N. E. 22.6;
40 Ind. App. 136.
33i Shelton vs. Smith, 62 Tenn. 82.
^^^ Newton vs. Hammond, 38 0. S.
430.
33 People vs. Brooks, 22 111. App.
ing,
some
5i94.
389
JUDICIAL BONDS.
fraudulent'"
duced
he
may
is in-
there-
sureties/''^
in a reasonable tima'^'
It is held that the acceptance
is
sureties/"
and upon
final
sureties
An
226.
the sureties.
An
is
upon the
for.^'^
conclusive against
for the
is
conclusive against
and although
11 N. E. 529
19
111. 310;
111.
277
N".
E. 287;
People
vs.
105.
336
guardian and ward, and by agreement with the ward, there being no
fraud in the transaction, will release the sureties, even though the
amount was never actually paid to
People vs. Seelye, 146
the ward.
111. 1S9; 32 N. E. 458.
339 Ream vs. Lynch, 7 111. App.
L61
Kaittleman vs. Guthrie's Estate, 142 111. 357; 31 N. E. 589;
State vs. Slauter, 80 Ind. 597;
;
Ky. 593.
Price vs. Barnes, 7 Irid. App.
34 JT. E. 408.
338 state vs. Branch, 134 Mo. 592;
36 S. W. 226.
In this case the
guardian was solvent at the time of
his settlement, and the funds of
337
1;
the ward were invested in his private business, there was no actual
Knepper
^f.
W.
390
Where
tbe settlement
is
and an action
for the
amount of
may
is
vsrorthless securities
in-
227.
This class of trustees are execuhave been termed the " hand of the
court."
'"
They represent
is
generally their possession cannot be disturbed vsdthout the express consent of the court.
These
officers are
all
damages
if
may
11.
198; 36 N. E. 28.
is
property
money and
sn
ac-
distribution,'*''
Eceleston,
party, in
is
the
the
officer of
hand
342
Van
He
of the court."
Slyke
vs.
Bush, 123 N- Y.
JUDICIAL BONDS.
or
by the successor in
An
office
where
tlie officer
39J
has been removed.'**
or assignee is conclusive
It is held that
fraud and secures a vacation of the trust, that he cannot thereafter recover
from the
sureties
failure of the
was a
creditor
nullity,
Bail bonds.
228.
Bail
and
is
is
and form provided by statute, conditioned to redeliver the defendant to the custody of the law at a time and place appointed
in the bond.
and
dicial act
to bail,
iinless
an order
the transaction
is
is
nullity.'*'
844
Walsh
vs. Miller,
51 0. S. 462;
38 N. E. 381.
But
White, 28
Fun
289.
chinei-y
ject;
made
for their
but
secure the
it
are conclusive.
S45
in
behalf
The judgments
of
the
ob-
creditors
532;
Morgan
Bush (Ky.)
vs.
84.
Commonwealth, 12
THE LAW OF SURETYSHIP.
S92
bailment
sureties, if the
power
is
ordered by an
officer
having no
execution of
If the
bond
to
it
the
recitals it contains.'^'"
in
the officer to take bail/** neither can the sureties question the
Conditions in bail
229.
An
bonds Time
of appearance.
is
the time
In general the recognizance must stipulate a fixed time of appearance. There can be no forfeiture of bail unless the obligation is definite. It was held that a requirement to appear on
day of April next" is void for uncertainty.^'"
the "
the coming in of the court being fixed by law, is sufficiently definite,^^^ even though the wrong date is specified in the bond.*
SIT United States vs. Hudson, 65
Fed. Eep. 68; State vs. Caldwell,
124 Mo. 509; 28 S. W. 4; Dugan vs.
Commonwealth, 69 Ky. 305 Pax;e
vs. Mississippi, 25 Miss. 54; Blevins
vs. State, 31 Ark. 53; Rupert vs.
People, 20 Colo. 424; 38 Pac. 702.
But see Jones vs. Gordon, 82 Ga.
570; 9 S. E. 782.
;
347(1
Husbands
vs.
29 S.
Harris
W.
Commonwealth,
W.
vs. State,
632.
60 Ark. 212;
751.
292.-
350
Colemam
vs. State, 10
Md.
168.
393
JUDICIAL BONDS.
recites a date
when no
ment
can
it
is
be,
is void.''^''
the bond,
force
non-appearance at a
subsequent term.^^*
poning the
was made on the minutes of the court postthe determination of cases pending in an-
trial until
But the
other court.^^^
named
date was
error,
which was
already
past.
18 S. E. 437.
But
see
Wegner
W.
608.
Where the
impossible date " A. D. 188- " was
App. 419; 13 S.
Burnett
vs.
Pickett
Smith,
vs.
N W.
328;
N.
13
489;
C.
620;
rights
IST.
vs.
E. 877;
Iowa 467; 44
Staite
vs.
59 S, E. 64.
Mo. 44;
Holt,
made without
111.
W.
Henning, 235
are
stipula-
their consent or
Tex.
Ramey
The
discharged.
suit
tion,
Tex.
18
65
Vermont
App.
Hanan, 106 Mich.
16
State,
People vs.
N.
66
Smith,
vs.
Ga. 341.
355 Reese
United States, 9
vs.
Wall. 13, Field, J.: "If, now, we
apply the ordinary and settled doetrine, which controls the liabilities
of sureties, it must follow that the
sureties on tihe recognizance in the
Btate
648;
State,
14 Vt. 64.
vs. Merrill,
S54
vs.
Treasurer of
283;
Colquitt
Contra
by
fective.
App.
court,
This was so
135 S.
W.
145 N. C. 450;
and
It
is
true, the
liabilities of sureties
a recognizance are in
many
on
respects
payment
394
will be
cise
Same subject
230.
Place
sureties
possible exer-
of appearance.
is
is
A con-
him
So
own
of his
it
was held
that
the
In Thomas
precise terms of
and the effect upon
such liability of any change of the
terms without their consent, their
positions are similar. And the law
upon tihese matters is perfectly well
settled.
Any change in the contract, on which they are sureties,
made by the principal parties to it
without their assent, disicharges
them, and for obvious reasons.
When the change is made they are
not l^ound by the contract in its
vs.
State,
10 Md.
In this case the recognizance
was to appear before the "County
Court," and the Bail was held to be
liability
to
their contract,
exist.
it
matter
how
Nor
trivial
the
it may be o^
They
advantage to the sureties.
have a right to stand upon the very
terms of their undertaking."
356 State vs. Aubrey, 43 La. Ann.
Barnes
vs. State,
36 Tex. 332;
N.
W.
vs.
State, 127 S.
W.
1030, held:
"A
appearance
of
accused
before
the
insuf-
trict courts,
not
is
being
designated,
Coleman
168.
court by this
viously
abolished
pre-
and a "Circuit"
cused
should
was that
appear
the ac-
before
the
Adams
App.
JUDICIAL BONDS.
395
court to
Legislature
all
is
transferred.'"^
pending criminal
another
It
State Courts to the Federal Courts in accordance with the provisions of law, that the bail
was incident
to the prosecution,
and
followed the case into the Federal Court, and would not be forfeited
by a
bond.'"'
231.
ment or information
illegally
is
defendant was
was
arrested,
places
will
sidered as surplusage
effective as to the
other terms.""'
381
Mason
Contra
App. 348
Iowa
413.
279
Pearson
314.
382
Ramey
383
Davis
83 Ky. 534.
South Carolina, 107
vs. Comim.,
vs.
60 Ark. 209
29 S. W.
640; 'Sharpe vs. Smith, 59 Ga. 707;
State vs. Poigton, 63 Mo. 521; State
vs. Sureties of Krohne, 4 Wyo. 347;
vs.
State,
34 Pac.
3.
60' S.
385 Littleton
vs. Terrell,
E.
vs.
3 Ga.
4.
State,
46
Ark.
742.
But
was
493.
so? ^gtate vs.
396
If the bond fails to specify any offense for whidb the bail
given, the undertaking is void/"* but
bond
it -will
is
be sufficient if the
Where
is
for another and different offense, the variance will invalidate the
but
bail,^'"
if
the variance
is
as a
bond
is
not invalidated.^^^
^'*
is
36S
Horton
30 Tex. 191
Xex. App.
722; Waters vs. People, 4 Col. App.
97 35 Pac. 56 State vs. Wooten, 4
La. Ann. 515; Simpson vs. Comim.,
Littlefield
31
vs. State,
State,
vs.
Ky.
523.
Contra
370
Reese
vs. People,
State vs.
346;
450;
Draughan
11
III.
App.
Fomo,
vs.
14 La. Ann.
State, 35 Tex.
W.
667.
43 Ala. 4. In
this case the recognizance was to
answer the charge of perjury, and
the indictment was for burglary.
Addison vs. State, 14 Tex. Crim.
App. 568, where the recognizance
was for theft and the indictment
for swindling.
People
Contra
111.
Metcham, 74
vs.
292.
snMudd
vs.
Comm., 14 Ky.
L.
Eep. 672.
See also Cttmm. vs. Teevens, 143
Mass. 210; 9 N. E. 524; State vs.
8 N. W. 303
Bryaait, 55 Iowa 451
;
Murray
vs.
People,
111
Pac.
711;
49 Colo. 109.
372Tousey
373
302.
374 Cravey vs. State, 26 Tex. App.
84; 9 S. W. 62.
See also Woods vs. State, 103 Si.
W. 896; 51 Tex. Or. App. 595;
Martin vs. State, 145 S. W. 916.
397
JUDICIAL BONDS.
dertake for the appearance of their principal at the time
place set out in the bond,
The
not appear.
His discharge
the accused.
and
forfeited if he does
is
still
rests in the
discretion
of
the court.'"
is
time
after the
It
trial
will
authority and
his
agreement
on
his
is
beyond
successor in
office.'""
Discharge or exoneration of
232.
bail.
made
at
from
all liability.
is
called for
trial.'''*
3'6Champlain
82.
pie,
ftl
111.
134;
Hinkson
vs.
"BHangsleben
vs.
People, 89
111.
State
"After
Contra
Sproat
vs.
Common-
Husbands
vs.
Commonwealth,
1118.
S78 Boswell vs. Colquitt, 73 Ga.
63; Kellogg vs. State, 43 Miss. 57;
State of Sbuth Dakota vs. Casey,
('S. D.)
183 N. W. 971, 15 A. L. R.
1521, and note.
398
arrest
and his
officers.^^"
tO'
request of the
liie
But
further liability.^'"
all
as-
mere request by
surety to a sheriff to talce the accused into custody, if not complied with, will not exonerate the surety, notwithstanding
officer to
make
bail, either
Where
upon the
is
again
bond.^*^
is
But
mere
is
it
the arrest.^'^
ac-
it is
charge and upon a warrant issuing out of the same court will not
release the bail.^**
The death
379
Ann
State
vs.
Cunningliam, 10
(La.
needed.
38o
57 N.
and
deliver
charge; and
at once, they
him up
if
their
agent.
may
in
they
seize
him
their
dis-
may
They may
can be done.
til it
cise
Whenever
they
exer-
rights in person or by
another State;
if
necessary,
may
by virtue
of
new
process.
None
is
Sternberg
But
534.
so,
an escaping
42 Ark.
State,
vs.
127.
choose to do
sheriff of
prisoner."
is
imprisonment.
by the
rest
obli-
ssi
^^^
see
Kamey
People
W.
vs.
Coram., 83 Ky,
vs.
257.
People
McEeynolds,
vs.
102
Smith
vs.
Kitchens,
51
Ga,
Medlin
vs. Conrm.,
74 Ky. 605
W.
Rob-
App. 64; 2
S,
622.
ss^McGuire
vs.
Comm.,
But
see
309; 11 N.
Smith
W.
vs.
vs. State,
317.
Ky. L
Colquitt, 72
12 Neb.
399
JUDICIAL BONDS.
gation of the bail bond,'*'" even though death occurs after
for
feiture-'^^
The
and hiscor-
Where
the accused
other State,
State, it is
failure to
gation
is
a requisition
from such
appear
is
by
was assumed.'**
act of the
It
was
obli-
principal
his
Mm
brough
vs.
vs.
400
The
ties.'^'
adjudged
lunatic
asylum.*'"
Where
appearance.'"'^
The condition
the court"
of
is
if
after con-
is
by operation of law.'"^"
Nor can they be again bound by the subsequent vacation
the judgment and the granting of a new trial.*'^'
sureties are discharged
389
390
Comm.
Comm.
Eep.
L.
Flemming, 15 Ky.
vs.
Fuller vs.
49];
W.
(Ky.)
Comm.
Cortra
vs.
vs.
Davis,
Comm., 33
392
3M-
State, 41
729.
If the principal,
Bui
although insane,
734;
Gingrich
Huggins
vs.
vs.
People,
People, 39
Iowa 63;
34
111.
111.
448;
241.
140
S.
W.
S.
vs.
39liState vs.
53 Ky.
383.
S.
vs. Terry,
of
is
217 N. Y. 24; HI X. E.
U. S. vs. Broadhead, 127 U. S.
212; People vs. Hanaw, 106 Mich.
421, 64 N. W. 328.
vs. Parisi,
253
CHAPTER
VIIL
CORPORATE SURETYSHIP.
Sec. 235.
Sec. 236.
Corporate Suretyship
Sec. 283.
Sec. '234.
as
Affectec"
pensation Paid.
Sec. 2'37.
is
Frauds.
Sec. 238.
Sec. 230.
See. 240.
Same Subject
Sec. 241.
iStipulation
the Contract.
in
Notify the
Surety of any Act of the Principal that "May" Involve Ix)a
Upon the Bond.
that the Obligee Shall
Claim
if
is
not
Made Within
a Designated Time.
Sec. 2142.
the
Bond
Sec.
2l4'3a.
Surety companies
Compensated suretyship.
Corporate Suretyship as a business enterprise has been developed in recent times, but the principles of law defining the
rights of the parties to a suretyship contract must of necessity
be the same, whether the surety is a private person or an
incorporated company, except so far as the liabilities of the
latter are controlled and limited by the doctrine of ultra vires.
It would seem to be a self-evident proposition that the contractual relation is unaffected by the fact that the surety is
incorporated and engaged in suretyship as a business and receives compensation for the undertaking."
.
&
L.
R.
A.
St. Rep.
(N.
803.
iS.)
364,
130 Ann.
402
The difference
compensated surety
manifest.
is
The one
is
the undertaking.
ity
to the obligations of
the other.
If the aoeommodation
legislative
Corporate suretyship was not, hawanticipated, and so not provided for in terms in the legislative
ever,
ness, especially
insurance,
the business
is
directed
in
regulation
people.
in
hare held that the existing insurance regulations, without any s^/Ocial' reference to surety companies
being made in the Statute, were
incorporated
association,
COEl'OKATE SURETYSIlll'.
403
The similarity in business methods between insurance comand surety companies has often been noted in the opinions of judges, but there is no difference in legal effect between
contracts of insurance companies and any other corporation,
panies
based upon the simimethods of doing business between insurance and Cor-
tract,
but
is
larity in the
84
vs.
mium
rates.
"In
Champion
ing Co.,
Fidelity Co., 239 111. 502; Philadelphia vs. Fidelity Co., 231 Pa.
208 s. c. Ann. Caa. (1912) 1085,
and note; 64 Univ. of Pa. L. Rev
200; Cowles vs. U. S. F. & G. Co
32 Wash. 120, 98 Ann. S. Ren. 838'
72 Pac. 1032; U. S. F. & G. Co.,
vs. First National Bank, 233 III
475, 84 N. E. 670; Livingston vs.
Fidelity & D. Co., 76 Ohio S. 253,
81 N. E. 330, 66 U. of Pa. Law
Review 40, 65; Victoria Lumber
Co. vs. Wells, 139 La.' 500, 71 So.
781; Ohio County vs. Clemens, 85
W. Va. 11, 100 S. E. 680; Comev
vs. United Surety Co., 217 N. Y.
268, 111 N. E. 832; Wasco County
vs. N. E. Equitable Ins. Co., 88
Oregon 465, 172 Pac. 126.
404
and
of
sation.
1085,
F.
&
G.
Bank, 233
Co.
111.
vs.
First National
475, 84 N. E. 670.
405
COEPOBATE SURETYSHIP.
To apply a
writing
relate merely to the construction of the contract and these rulmgs have no relation to the proposition sometimes urged, that
corporate suretyship is a
Some of the
point,
new and
earlier cases
but there
is
"We
ship
must keep in view the character of contracts of suretyof corporations organized for the purpose of engaging, for
profit,
of a third party,
their contracts.
of suretyship,
"The
ance,
in
eases
standard policy,
ambiguity in
constructions, one of
which
will
The rule
which
is
most
struction. "'"
Co. vs.
191 U.
iLivlngston
Deposit
958.
Co.,
E. 330.
Co. vs.
F. & G.
406
"That
itself
thus
....
law to the
sponsibility
assumed.
3fi6;
suggests the
name
"common
of
sure-
relations
their
in
to
the
full
but
this
they
may make
They
such
reasonable
together
forfeiture
other
way from
private suretyship.
to
their
general
by virtue
has
be called a
exactly in
voluntarily
of the statute,
"common
tlie
companies, but
still,
The
become,
what may
surety";
nature of
intent
.
a,
not
common
and telegraph
one of those
administrators
ries,
oi
the
indemnity,
for
of the contiaet."
To the same
vs.
see
effect,
American Bonding
Bryant
Co., 77 0. S.
"What is the
90; 82 N. E. 960.
nature of the contract? Is it one
simply of suretysliip, one of those
known as voluntary contracts, or is
it rather one of the class issued for
a money consideration and because
of a desire for pecuniary gain? If
the former, then it is one wherein
the surety is regarded as a favorite
of the law and all doubtful ques-
tions to be
resolved
in
then he
his
favor.
regarded
as an insurer, whose contract, being
drawn by the surety himself and
for a money consideration, is, it
ambiguity exists in the language, to
be resolved most strongly against
Indemnity Co. vs.
the surety."
Granite Co., 100 0. S. 373, 126
N. E. 40.5, 12 A. L. R. 378, note
at p. 382, "Liability of Surety
Company as Distinguished from
that of Gratuitous Surety."
American Fire
:S'ee also United
Ins. Co. vs. American Bonding Co.,
146 Wis. .573; 131 N. W. 994; 40
If the
latter,
L. R. A.
(N.S.)
is
in-
407
CORPORATE SURETYSHIP.
rule
which
is
made
it
would be anomalous
to hold that
is
"When
he covenants
to be
if
"It
like
is
now
to be
is
As
to
any
ambiguity
W.
1"
764.
U. S.
:^tl.437.
j^^^^^
^^_
-g.
^^
502, 88
73
note
2.
S. Fidelity Co.,
N. E. 208
ante,
239
Stec.
408
'
'
is
that selected
and employed by
when doubtful
234.
Private suretyship
Corporate Suretyship
Many
is
is
engaged.
It IS also quite possible for a
bond
gratuitouslj'.
The comparison
The important practical contrast between these forms of sureis in the language of the contract and the methods of
arriving at a mutual understanding, involving at most an inquiry as to the meaning of the words employed.
The private surety who engages in a fidelity bond, or who
tyship
title,
little if
it is
vs.
Mor613;
Co.,
Cas.
note
382.
COEPOEATE SUEBTTSHIP.
409
On
the other
the contract.
beneficiary.^^
bond,
it is
The advantage
to
all
parties
down
in
writing,
is
manifest,
Insurance
is
and
is
controlled
and regulated by
statutes:
from a simple
contract.
410
The promise by one party to answer for the default in the performance of a subsisting contract of another person is the particular feature which gives rise to all the learning in the field
of suretyship law.
Insurance is a simple contract of indemnity between two persons, wherein one agrees to compensate the other against loss
which results, not because of the breach of the contract of another person, but which arises from an involuntary impersonal
cause, such as accident, fire or death.
There is not even a fair ailalogy to be drawn between the two
kinds of contract. The comparison between a suretyship eontract and an insurance contract is precisely the same as that
which exists between a suretyship contract and any other form
of simple contract.
The subject of suretyship arises altogether out of the relation of the promisor, principal and creditor, brought together
in one contract, and where this relation exists the rules and
equities of suretyship can not be excluded.^'
Corporate suretyship as affected by the premium or compensation paid.
has sometimes been assumed that the payment of a premSurety Company in some way deprives the Surety
It
ium
to a
'See. 233.
"The rule of
construction," it is said in
a recent case, "is liable at times
to work it practical injustice and
it ought not to be extended beyond
the reason for the rule, particularly
when the surety is engaged in
the business of becoming surety for
pay and presumably for profit." It
may be questioned whether compensation is a proper criterion for
discriminating between agreements
where th'e strictissim/i, juris rule is
sought to be applied. If the contract is based on an elaborate
questionnaire and is for all prac-
if
Ante,
strict
tions.
has
little
justification
in
modern
335."
66 U. of Pa. Law Review
40, 65; George A. Hormel & Co.
vs.
American Bonding Co., 112
Minn. 288, 128 N. W. 12, 33 L. R. A.
CN. 19.) 513; Gamble-Robinson Co.
vs; Mass. Bonding & Ins. Co., 113
Minn. 38, 129 N. W. 131; Shakraan vs. U. S. Credit System, 92
Wis. 366, 53 Am. St. Rep. 920,
66 N. W. 528, 32 !L. R. A. 383.
holding that the surety company
was bound under the rules of the
insurance statute, and that the husiness was insurance, but does not
decide whether the contract was
suretyship and controlled by the
rules of suretyship law.
CORPORATE SURETYSHIP.
411
of rights
surety of
tract,
and
it
premium
of the
the surety
surety to
The
know
oases
make no
premium
is
paid,
logical connection
rendered.
The pt-emium
is less
It is
ium
In the
latter case
doubtful whether
it is
contracts written
It cer-
is
paid
and contracted for by the principal, while the bond or obligation runs to the creditor.
to
The
on
tliat
account.^
not
be considered in determining
rights."
See also Baglin va.
Southern Surety Co., 4:1 App. D.
his
C.
530.
sA
4:12
The
consideration in
all
and
If employment
creditor.
is
offered
that
ance of his duties, the consideration of the employment contract is the consideration of the bond,
consideration
and
as to the question of
it is
pensated or not,
premium paid
Company, but
is
is
^237.
is
of
frauds.
The
is
lateral
It
is a col-
of
Where
the surety
out of the
main
is beneficially
contract, as
engagement
contract
is
to
doubtless
him an
intended
original promisor.*
to
its offieexs it
terested,
part; but
it
The
if
entitled to the
such
If it
act,
in-
their
safe,'
what
relief
is
there unless it
of
inform those
companies are
usually based upon an annual premcontracts
may
its
is
money
condition
is
or property to
hopeless and
a basis.
premiums are
removal.
not avail
itself of
the privilege of
still
be in force.
No
is
Through
tracts
COEPOEATE SUEETYSHIP.
But the payment of a premium
as an
413
inducement
to ente?
no
interest in the
outcome of the
238.
is
poration
tract
is
a cor-
The same
its
execution.
rules of construction
must
if
apply to private
also
made
in the
same way.
is apt to be considerably
and has been talked about in many cases where
promises in suretyship
over-estimated,
be extended by
term of his contract cannot be
changed without his consent, or that one party to the contract
surety's liability will not
surety cannot be bound beyond the clear and unequivocal terms of his obligation" is true of a party to ajiy
contract in writing.
There
is
where he
common
is
He clearly
merely given
tracts.
s Ulster
Co.
Savings Inst. vs.
Young, 161 N. Y. 23; 55 N. E. 483.
" The liability
of
a,
surety
is
measured by his agreement, and is
in
is
to be in-
other contracts.
obligation
414
The
features.
its
distinguishing
is
an accommodation party
the matter being wholly separate and distinct from his own
affairs,
tection
on
thfa
different interpretations
imposing a limited
may
liability
reasonably be given to
it,
the one
more extended
or
more
pose the
limited construction.
contract,
this
where the
eon-
tion for the bond, has changed the attitude of the surety to the
contract,
strict
upon
to
apply.
And
so in
an action upon
a fidelity
415
CORPORATE SURETYSHIP.
was held "if, looking at all its provisions, the bond is fairly
and reasonably susceptible of two constructions, one favorable
to the bank and the other favorable to the Surety Company, the
former, if consistent with the objects for which the bond was
given, must be adopted, and this for the reason that the instrument which the court is invited to interpret was drawn by the
attorneys, officers or agents of the Surety Company
As said by Lord St. Leonards, "It (a life policy) is of course
prepared by the company and if therefore there should be any
ambiguity in it, it must be taken, according to the law, most
strongly against the person who prepared it.""
The trend of all our modern decisions. Federal 'and State, is
to distinguish between Individual and Corporate Suretyship,
where the latter is an undertaking for money consideration by a
company chartered for the conduct of such business, in the one
case the rule of strictissimi juris prevails, as it always has with
respect to the other, because it is essentially an insurance against
risk, underwritten for a money consideration, by a corporation
adopting such business for its own profit, the courts generally
hold that such a company can be relieved from its obligation for
suretyship only where a departure from the contract is shown
it
to
6
Ante,
Sfec.
the
233.
vs.
Pauly,
purpose."
The foregoing vievr that the contract of the surety company is to be
construed like an insurance contract
most strongly against the insurer,
results in this case wholly from the
form of the contract wherein the
details of every right of the surety
are fully set out in the vn-iting, and
is in no respect a deduction from
the fact that the surety is corporate
and compensated.
A private surety making the same
contract would be subject to the
same
ruling.
6i Philadelphia
vs.
Fidelity
&
D. Co., 231 Pa. 208, 80 Atl. 62, Ann.
Cases 1912B, 1085, 1087; Brown vs.
Title Guaranty and iStorety Co., 232
Pa. 337, 81 Atl. 410; Young vs.
American Bonding
416
The doctrine thus stated would apply with equal force if the
bond had been prepared and executed in the same way by a
private surety acting without compensation.
From whatever point of viejv the question is considered there
does not appear to be any good reason for holding that the fact
of the surety being corporate and compensated has any bearing
upon the contractual relations of the parties.
Where the instrument is not drawn by the surety but is prescribed by the law, such as bonds of public officers or judicial
bonds, no distinction in principle exists between private and
corporate suretyship, and no distinction has been made by the
courts in construing the respective contracts, and the only distinction heretofore made by the courts between corporate and
private' suretyship contracts, apparently has been limited to the
fact, that in the one case the contract is prepared by the surety,
and in the other not, resulting in the rule of strict construction
against the Corporate Surety in the matter of the interpretation of the meaning of the contract."''
239.
stipTila-
Many
of the conditions
company bonds or
and
stipulations
common
to surety
surety.
Contra In California, a corporate surety stands on the same footing as an individual surety in this
regard, and is discharged by a
material alteration in the obligation of the principal, to which the
corporation surety does not consent.
First
Congregational Cimreh of
Christ in Corona vs. Lowery, 175
Cal. 124, 165 Pac. 440.
^^ Ante, Sec. 233.
Oity of Topeka vs. Federal Union
Surety Co., 213 Fed. 958, at page
962, cites all leading cases.
417
CORPORATE SURETYSHIP.
While
it is
terms
cifically
to
So too a stipulation for notice of default under any circumupon the creditor as it is a condition
of liability which may always be imposed.'"
stances will be binding
8''
posit Co., 76 O. S.
253
vs.
iStates Fidelity
&
Guar-
828
United States
'
United
81 N. E. 3i30
anty Co.
Surety
vs.
Co.,
41 App. D. C. 530.
,/"!", School
District
vs.
The
THE LAW OF
418
SUEETYSIIIP.
cent
Where an
money
it
a suspicion
his
tliat
lation in the
which
may
The
from the
responsibility of bad
to the less
to report
judgment
and a failure
act,
which
finally leads
It cannot, however, be
vs.
Pauly,
when
came
it
plaintiff be-
had
the
defendant in liability
error
in
"We
perceive no
these instructions.
They
are
words
'
'
the above
'
the employer,'
it
may
Company
well
be
did not
of
as would justify
dent
man
a,
although the
delity
&
Bank
38 S. E. 908;
^tna
vs.
Surety Co.,
COEPOEATE SUEETYSHIP.
obligee in
as involving
419
no
The
risk.
notify the
company
that
al-
no impor-
tance.'"
recited in surety
company bonds
fraud or dishonesty
extend the
of a bond.
on.
common law
The
obligation resting
is
any
re-
act of
intended to
ulation requiring
him
of the principal, is
he has knowledge of
acts of
fraud
Mechanics
of Appeals, 80 Fed.
Fuller,
C.
J.
Rep. 766.
" The company's
of
had admonished
it of
the probability
would be responsible.
....
The
company
and
ex-
into
We
bank
not contrary to
the
terms.
think
it
to have
company at once
n Ante
See.
107.
have notified
of the Informa-
420
It
is
ohligee
where no
made
special stipulation is
the covenant that the obligee shall at once notify the surety of
241.
is
a designated time.
is
The
mand
more
and timely
definite
de-
its affairs,
to
be made upon
its resources.
The
filed
this
is
requirement
is
a waiver of
all
12 Fidelity
&
....
....
_
diligence in enquiring into or super.
vising the conduct of Eedwine in order that the company might be saved
from loss through his misconduct.
j-j
mi,
J
+
+
exto ^
not undertake
bank did
The V
1
4.
and diligence
Eedwine had become
to find out if
untrustworthy, but as to this matter
the company, in effect, invited the
bank
^^^^
j^ j,^^ ascertained."
13 California
Savings Bank
vs.
l,,^,"!^,^^^!
,g^
ggj
^f^f,: ^3
Lombard Investment
Co.
W.
7.
COEPOEATE SUEETYSHIP.
421
tended."
242.
nothing to the right which the surety enjoys without such cov-
enant
Where
it is
stipulated that
money paid
may
be execut-
in settleonent of claims
made
ac-
>
sum
as the surety
whether more or
less
Jackson
& Casualty
vs. Piilclity
may pay
Rep. 359.
to the cred-
422
made
right
policy.
243.
"1^
col-
vs.
Aetna Indemnity
W.
Y.;
vs.
The
following'
American
cases,
a clause making a
third person's statement prima faoie
evidence only give no difficulty:
holding valid
(1908)Security M.
Co.,
108 N. Y. Supp.
App. Div. N.
171
(surety
sentative
of
employer, based
of the employer,
the
evidence
facie
thereof"; held valid; that there was
"nothing extraordinary or startling"
in this agreement)
16 Illinois Law
Review 87, 102 to 107; 5 Minn. Law
Review 227, 480; 21 Columbia Law
.
.Review 192.
"
COEPOEATE SUEBTYSHIP.
423
to
perform,
The
is
mere wager.
same attitude
to this indis-
The surety is not concerned with the extent and value of the
main contract, as to whether it is profitable or otherwise to the
principal contractors, or whether it is a fair and equitable barwhether the apparent obligee
gain, or
The important
is
thing,
to his
Some
which the contract of the corporsometimes called " insurance," from which is de-
duced the erroneous notion that the obligee in the bond must
have an " insurable interest " in the transaction as a basis of
recovery,
and
is
amount of such
known to insurance
rights.
One may have
The
insurable interest.
insurable interest
some
benefit,
and the
loss of
tract to
and
it
would seem
of terms
But a suretyship
tract relation,
to
is collateral.
The more
accurate use
a corporate compensated surety, except where the cause of action exists against the principal also,
ery
is
limited to the
amount of the
424
tract of
company was
also released.^"
243a.
The stipulation
An
officer of the
Court
is
him
"A
this
or the control of
zens'
Oiti-
Fed.
'See
also
Electric
Appliance Co.
vs.
Surety
running to
Rep. 597.
as to
him
as
an
individual
CHAPTER
IX.
Sec. 2145.
See. 246.
Sec. 2147.
See. 248.
Subrogation.
Subrogation Arises Only When Claim is Paid in Full.
Subrogation is a Mere Equity and Will Xot be Applied Against
the Legal Rights of Others Dealing with the Principal.
Sec. 249.
Sec. 2150.
Sec.
2'5'1.
Sec. 2/52.
Surety Paying Judgment Against the Principal Will be Subrogated to the Lien and Other Rights of the Creditor Under the
Judgment.
A Suretyship Promisor Who Pays Will be Subrogated to any
Mortgage Security which the Creditors Holds for the Debt.
Subrogation Applies to One in the Situation of a Surety.
Surety Who Pays the Debt is Er.titled to be (Subrogated to a.
Pro Rata Share of any Dividend which is Derived from the
Assets of the Principal.
Sec. 254.
Sec. 255.
Sec. 256.
Same
Sec. 353.
Surety.
Sec. 2159.
Sec. 2i60.
Co'nTentional Subrogation.
Sec. 2157.
See. 258.
Waiver
Sec 262.
Sec. 263.
Sec. 264.
Sec.
2!6'5.
of Subrogation.
General
Principles.
in Contribution.
Sec. 266.
Sec. 267.
One
Who
a.
Surety.
of a Co-surety is Lialble
425
Sec.
is
427
and
rests
It is the exercise of a
dial
Subrogation
is
not limited in
its
application to transactions
Whenever one pays the debt of another, although under no obligation to do so, if the payment was necesin suretyship.
own
interests,
rogation arises.^
,183,
principles
the plainest
natural
of
It
off
hardly
is
possible
to
put this
than from
tract
equity
may
contract
unless in
and
so'
or quasi con-
be supposed to be im-
security,
of the creditor,
ties
the
a contract by implication.
... A surety will be entitled to
every remedy which the creditor has
of the creditor
his shoes,
and
all
means
having
a,
securities transferred to
there
him, though
was no stipulation
for that;
Hayes
vs.
ISO',
C:
entitled to
Is
demand
or contract on the
part of a debtor with the surety, but
grows rather out of the relation
_
and
is
and the
.but springs
principles of
.
Robertson
natural justice."
Sullivan, 59 So.
102 Miss. 581.
sGaskill vs. Wales, 36 N. J. Eq.
vs.
846;
527;
Cockrum
vs.
West,
122
Ind.
Murray vs.
O'Brien, 103 Pac. 840; Lackawanna
Trust & Safe Deposit Co., vs. Gome-
ple in the
Kent.
372';
23
N.
E.
140;
84 Atl. 757.
THE LAW OF
428
STJKETYSHIP.
judgment was
a lien
upon
where
a junior
mortgagee
and
if the
is
The same
coanpelled to
may
rule applies
The
claim.^
than suretyship
may
made with
loan was
in paying
ojff
mortgage was
it
was
to be used
all
to be executed as security
become a first lien. The mortgage when executed being defective and invalid, it was held that the one advancing the money
ought to be subrogated to the rights of the prior incumbrancers
off
by him."
If the prior liens had been assigned to the one advpncing the
consideration for their discharge, his rights to enforce them
Warren
vs.
Arnold
23 N. E.
vs. Green,
1,
Farm,
J.
116 N. Y. 566;
" This appeal
ease,
own
reimburse-
Under some
incir-
definite
and preserves its lien for his benefit and seeurity. According to the well-estaWished principles upon which the
doctrine of equitable assignment by
it alive
an assignment."
s
Porter vs.
Vanderlin,
146
Pa.
850; Twomb-
31 Neb. 204; 47 N.
W.
ly vs. Gassidy, 82
N. Y.
Amick
vs.
159.
Woodworth, 58 0.
86; 50 N. E. 437.
S.
429
as-
Court,
is
its
application^
By
statute, in
surety
is
vs.
6a Southern Cotton Oil Co.
Napoleon Hill Cotton Co., 158 S. W.
1082; 108 Ark. oSo.
7 Acer vs. Hotchkiss, 97 N. Y. 402,
We
if
made and
son who
handle
& 20 Vic,
person
who,
c.
97,
being
s.
cr other proceeding
Pro-
titled to recover
co-contractor,
surety,
co-
co-debtor,
or
liable"
3
such judgment,
by him:
5:
surety
duty of another, or
being liable with another for any
debt or duty, shall pay such debt or
perform such duty, shall be entjtlfed
to have assigned to him, or to a
trustee for him, every judgment,
specialty, or other security which
State
whether
loss sustained
shall
shall
be,
"Every
may
advances
suclj
Statute 19
the
payment or performiance so
made by such surety shall not be
unv^isely
it
for
shall never
co-surety, co-contrax:t-
indemnification
Finch, J.:
gation is
any
or,
185;
Bank
49
Smith,
vs.
N.
E.
660;
1.55
N".
Y.
Billings vs.
other
Sprague,
49
111.
oOO';
Beaver
vs.
deemed
have been satisfied by the
iSlanker,
9'4
111.
175;
Young
vs.
law to
payment of the debt, or performance
of the duty, and such person shall
at
specialty,
or
and,
and to use
if
need
be,,
all
the rem-
and upon a
name
of
vs.
THE LAW OF
430
The promisor in
STTEETYSHIP.
may
suretyship
be subrogated to the
ties
made
securi-
come
The
ship contract/^
245.
creditor
when
claim
is
must be fully
paid in
full.
The
is
superior to the equity of the surety or guarantor, and the creditor is not obliged to suffer the inconvenience or risk of parting
,321;
26 Tex. 320;
vs. Jacques,
is
^^
Ohio
705;
McGrath
Carnegie
vs.
Trust
loDempsey
Bush, 18 O. S. 376
17 W. Va. 474
Mayhew vs. Crickett, 2 Swanst. 185
Forbes vs. Jackson, 19 Ch. D. 615
Hevenei
Lake
vs.
vs.
vs. Berry,
Brutton, 8
De
G.
M. & Q.
Duncan
don; 3 De G.
12
422 J
Ames
vs.
vs.
&
J. 524.
Huse,
Commonwealth
55 Mo.
vs.
App.
Ches.
&
116 N. E.
Vert
Covey
vs.
Neff,
63 Ind.
vs.
Iowa 119;
431
partially paid, it
would ly
^*
may
Where the
If
surety.
.1
be subrogated.^"
is
is
surety cannot
for
The
held.^"
a debt payable
when
personally bound
is
Midland E. R. Co.
Wortendyke,
vs.
Eq 6518.
"Cason vs. Connor,
18 S.
i^ee
Pa.
W.
&
small
the
land
Tex. 26;
'However
he
8'3
<6S.
also Graff
e9;
real
may
debt to
be redoioed,
for its
fcr
or the collateral
27 N. J.
and ultimate
is
mortgaged
security ia given
to
relinquish
any portion
of
him
the
it
was
con-
S. E. 542
on.''
'''K"eal vs.
337
gett,
Buffington,
26 S. E. 172
48 Miss.
1'39;
4,2
Magee
W. Va.
vs.
Leg-
Hess's Estate, 69
PuWisbing Co.
vs.
loWileox
vs.
Fairhaven Bank,
such substitution,
"It is obvi-
become entitled
ihe must first
man
Co.
Pae.
183.
if
Bank,
156 Cal.
Contra
Lynch
vs.
18;
103
8'7
Ind.
Hancock, 14 S.
C. 66.
Ward
vs.
land,
New
where
it
ia
is
THE LAW OF
i32
Subrogation
246
SUEETYSIIIP.
is
surety
who pays
rela-
maker
judgment
is
the indorser.
It
is
at maturity,
to
The
surety upon
the bond cannot place the indorser in this position and then
him under
rogation.^*
If a person
is
is
se-
as
pay
may
at the expira-
bond.
If he proceeds against the former, the promisor
may
be sub-
rogated to the creditor's right on the stay bond,^ but if the payis
Allegheny
Valley
Bohannon
vs.
Combs,
R.
Co.
vs.
18 Atl. 1003;
12
B.
Mon.
(Ky.). 577.
19 Schnitzel's
Denier
by's
vs.
Adm.
Myers, 20 O.
S.
vs. Henritze's
Va. 177; 7
Donovan, 23
S.
336 HanAdmr., 85
;
111.
App.
58.
Is
433
thereby discharged
judgment
new
but
if a
is
taken with
upon the first bond although the creditor may proupon either bond at his option.
The last bond is in derogation of the rights of the first sureties and no liability exists against them in favor of the last
the creditor
ceed
promisors.
Where
were given
it
judgments
intervention the
fendant therein.
the judgment.
may
was said in
But
for their
de>-
primary
liability
It
is
who
inter-
may
the principal.
contract but
tion of
judgments
to
loss.
Upon
at the
sureties,
and
to
upon appeal
to the
434
in the
The
sureties.
latter agreed,
it
affirmance,
have been
entitled,
upon payment,
substitution
l247.
who pays
isor
to
against
"
them."
it
securities
by proper assignment
may
that they
promisor
may
This right
is
is
20
Hinckley
vs.
Kreitz, 58 N. Y.
Mass.
563,
where
it
is
held that
583, 590.
if
ties.
21
Ga.
(La.)
424.
See
also
427.
Holmes
vs.
Day,
108
EIGHTS AND REMEDIES.
If there is
no judgment, he
is
435
assigned to him.^^
248.
all
The payment by
Thus where a receiver used trust funds in paying his individual debt at a bank, the bank having knowledge of the' trust charaasignment of the judgment, so
him to have execution
as an
as to enable
own
his
for
27 Neb.
ws,
Burke
Crisfield
benefit.
State, 55
vs.
44 N.
749;
Lee, 59 Ga.
vs.
Mey-
vs.
W.
25;
165; Benne
W.
an
vs.
82.
who
ty
pays.
Harris
vs.
Frank, 29
Kan. 200.
If the
judgment
surety he
his
own
is
assigned to the
may have
execution on
judgment
mant.
App. 514.
22Sublett vs. McKinney, 19 Tex.
collateral
secur-
nature,
but be
is entitled to be substituted,
as to the very debt itself, to the
creditor, and to have it assigned to
him."
Lumpkin
het, J.:
vs. Mills,
"Now, what
THE LAW OF SUEETYSHIP.
436
acter of the funds,
after
his surety,
to be
is,
upon
the
and the fact of his payment, subrogated to all the rights and
It may, therefore, be stated that the
is
where a creditor by a
from many
It
is
due
it
when
it
is
held by the
personally
held for their use by the defendant, and are entitled to recover
the same in this action."
23
Clark
Mo. App.
vs.
"
277.
vs.
Traders Nat.
to
the
trustees,
and
437
own
him
gates
is to
title,
would operate
19
the fund,
and
under him.^"
2<Neely
WN
-''
W.
vs.
920.
of
case,
amount
the
In this
it.
trustee;
contract
and the
by his
latter,
indemnify
to
the
estate
and a
insurer
The
tort-feasor.
a,
he
and,
loss
in-
surety,
sub-
is
for
Hart
the tort.
vs.
32 N.
The misapplication
interference.
itors,
der of distribution,
is
suoh
who
National
Bank
Co.
W.
People's
vs.
American
&
De-
U. S. F. &
Bank, I'SY S.
G.
Fidelity
vs.
414.
(N. C.)
3^7;
wher
ceiving
of
its
it
is
trust character.
Houck, 41
Hun
16.
Brown
vs.
in its
of the
notice,
debt
is
en-
19 N.
vs.
tlie
creditor
Hawkins,
E. 470;
l.r6
Scott vs.
ris vs.
that
Brown
ville,
satisfies the
dtebtor
Ind. 516;
Ired.
follow
principal
titled
or-
case.
principle, the
surety
a,
of
vs. R;ce,
108
111.
199;
FarmTS &
ity
Kennedy
(N. C.)
vs.
147;
& Deposit
371.
438
The
judgment creditor
rights of a
who pays
ty
is
may
pursued.
The
^^
may maintain an
surety
conduct of the
to
deputy,
sheriff's
it
the deputy.^"
If the debt which the surety pays
N.
Pa.
is
Loughridge
29
Mo.
vs.
Wilkins,
Heisk.
Thomas, 2 Jones
Brinson
vs.
(X. C.)
414,
Where a
sheriflF
result-
ages, they
People
official
acts,
may
his
vs. iSohuyler, 4
pass against
and
are
Oa/rddowr, J.:
Va.
Eq.
Atl.
27 Tiittidc
W.
70 S. E. 376.
nity.
(Tenn.)
vs.
Bowland, 52 Miss.
Salmond, 27 Me.
vs.
546; 'Sargent
N. Y.
"The action
sheriflfs for
the
ISS,
of tresseizaire
279.
28Tatum
vs.
by the law
in
majiy instances as
(N. C.)
113.
nd not
pays
the debt of his principal, although
lie can not bring such action until
It is necessary foir
after payment.
lie
of
pleted
by
subrogation,
jtayment,
when oomh
should
relate
1113;
of
no
111.
right
value.
Keel
of
vs.
subrogation
Larkin, 72 Ala.
4196;
is
title to
lig'lit
of
presumeu,
made the
sole judge of
S.
W.
6'85.
439
is
subrogated
to
It has
that if not
at maturity,
as
he
surety
to all the
remedies of
the creditor
30
Hunter
vs.
United
iStates,
Pet. 173.
Whitbeck
vs.
Eam-
Estate,
vs.
vs.
Cal.
(1920)
Child vs.
&
140
ing, will
the-
fund, and
may maintain
an action for
its recovery.^'
249.
It has sometimes
it
Prairie State
33
In
this
the
case
vs.
United
17 S. Ct. 142.
bank
advanced
right of subrogation.
White, J. : " Under the principles
thus
governing
subrogation,
it
is
was entitled
to subrogation the bank was not.
The former in making his payments
discharged an obligation due by
Sundberg for the performance of
which he, Hitchcock, was bound unclear whilst Hitchcock
arising
must
from
be
selves possessed.
solely
upon
the
mount
its
to
subrogation,
the
right
is
of
para^
subro-
I^eb-
of
rights
tion
relating
back to the date of the original contract, or as taking its origin solely
from the date of the advance by him.
Sundberg & Company could
not transfer to the bank any greater
rights in the fund than they them-
considered
and
it
necessarily
if
any, ac-
Bank
in the
441
is
tant
Furthermore
subrogation
was entered
maker of a
and subsequently this judgment
judgment
ease
this
if
rights.
attach at
is to
in the case of
all,
must be
of those securities
when
consid-
who brought
a bond merely,
if an action was brought upon the
bond, it would appear upon oyer of
against the
note,
principal
principal,
cialty,
ty
and
it
paying
such
obligation
sureextin-
it, and that the surety became merely a simple contract cred-
guished
itor
of
the
principal.
Chancellor said :
The Lord
" It is a general
ered;
there
is
must be
qualified,
by considering
it
I confess
was
to be considered as a specialty
creditor."
is
The doctrine of
now superseded by
this case
Statute in En-
But in reference to
Brougham said in a
later case (Hodgson vs. Shaw, 3
" The
Mylne & K. 183, ubi supra)
principles upon which Copis vs. Middleton rests are sound and unquestionable; and it is only upon a narrow and superficial view of the subthis
country.
The ground
clear;
known
it
of the determination
was
founded
rules of law,
in strict conformity
upon
was
the
and determined
with the doe-
442
a JTidgment
the
Neal
vs.
"The rule is
Minshall, G. J.:
that so soon as the surety pays the
debt of his principal there arises in
his favor an equity to be subrogated
to all the rights, remedies and securities of the creditor, and has the
right to enforce them against the
principal for the purpose of his inWhil^ payment by
demnification.
the surety discharges the debt and
extinguishes all the securities so far
as concerns the creditor, such is not
its effect as between the principal
and the surety, and all who stand in
the shoes of the former as to these,
it is in the nature of a purchase by
the surety from the creditor, and
operates as an assignment of the
debt and securities to the surety.
And, if a question is made whether
the acts of the surety have been such
as to keep the security on foot, the
court, in the absence of evidence to
the contrary, will presume that they
were done with that intention which
is most for the benefit of the party
;
doing them."
decree
of
Garvin, 27 S. C. 472; 4 S. E.
148; Ezzard vs. Bell, 100 Ga. 150;
28 S. E. 28. And a few courts permit this without a statute if the
suretyship relation was established
in the former action and the judgment has been assigned to the
surety. Nelson vs. Webster, 72 Neb.
vs.
332;
Riehl,
(IStatutory)
17 W. Va.
Hevener
vs.
Berry,
443
utory)
108
111.
Y. Supp. 430;
Hinckley
vs.
Kreitz,
518
75
ney,
N.
"Wlie^e one
of
botli
Y.
Eiwl,
42-5.
J.:
of
whom
are
principals,
a joint judgment, the judgbecomes extinguished, whatever may have been the intention of
kind
is
and
judgment on
tihe
by an
action
But a
contribution.
for
rule prevails
different
judgment debtors
obligation
the
Under the
put
into
judgment.
a surety pay-
civil lanv,
is entitled
securities
for
is
entitled to be substituted
as to
way
by
of cession or assignment.
It
between the
much
a payment as
Appeal, 23 Pa.
Woodward^
J.:
is
and
may
be
parties.
is
Tie
the creditor
possessed
against the
debtor.
keep
afoot
it
equity
in
the
for
Appeal
of
Ward,
Pa.
IQiO
289;
Atl.
lEf
Co.
Sousley.
vs.
iSmith
1.51
Davis,
vs.
.S.
76
W.
3'5'3:
E.
670;'
S.
Drake,
30
11
Cush. 504.
German
avdngs Bank
A-mjerican
68 Wis. 390
vs. Fritz,
,32
N.
W.
123
Marshall, C. J.: "The cases suppose the surety to stand in the place
of
if
Under
at
this supposition, he
full
liberty
to proceed
ulse.
would be
against
restrain
2i94.
"Subrogation
the
pays
ment
between
exists
decreed
to that extent,
co-surety
is
his claim
precisely
as
upon
vialid
his
as
444
A suretyship
250.
promisor
who pays
Where
debt.
mortgage
is
as-
signee of the mortgage, are unaffected by the fact that by operation of law he might have succeeded to the
same
interest in the
An
it
by operation of
is
to
law.^'
own
name,'* or to
re-
converts it'"
The
who pays
the debt
is
superior to any
of
to
Beaver
vs. Blanker,
94
111.
175,
was
satisfied
Kleinworth's
land.
But,
we think
is sufficient
upon
undoubted principle
at the time when
the obligation of the principal and
surety is given, a mortgage also is
made by the principal to the creditor, as an additional security for the
debt, then, if the surety pays the
debt, he will be entitled to have an
cree.
It is the
of equity, that
if,
Murrell
Nat.
Bank
O'Hara
as
vs.
vs.
vs.
McLean
vs.
Towle, 3 Sand.
Gossin
S9
vs.
Lewis
Brown, 11 Pa.
vs.
111.
Civ
87;
527.
Palmer, 28 N. Y.
271.
443
Thus where the creditor on receipt of payment from the surety entered a satisfaction of the
thereafter acquired a
judgment
on the land,
it
was held
The question has been somewhat mooted as to whether a subby the creditor, for which the surety has
himself
liable,
may be tacked to the mortgage and be
not made
preferred as a claim upon the property as against the surety's
In other words, whether the surety
equity of subrogation.
must also pay the additional debt in order to have the benefit of
sequent advancement
the
gagor,
mortgagee
to
make
mortgagee
subject to the
gation
is
which accrues
The
rule stated
lien for
mere equity of
subro-
to the surety.
is
But
if the creditor
has
which the suretyship forms a part, then the right of the surety
to
creditor to
claims,
make them
*"
*i
City Nat.
Bank
vs.
Dudgeon, 65
his other
er,
The
were
mortgage.
be
the
payment of
"
11.
Beav. 18.
right is satisfied."
m.
is
There
made between
is
a distinction to
additional advance-
446
It
have
was
all
later held in
is
entitled to
does
!N^or
it
or, as
matter at
settled, sub-
all in principle,
whether the
it is
to
at
now
I think
He
made
of the debt.
is entitled to
the duty of the creditor to keep the securities intact ; not to give
is
The
is
tion,
vancements.
made
are fixed.
But
surety engaged for the first installment, and upon the payment of this
of the creditor,
subrogation.
see
Williams
vs.
Gratt. 127.
own
when the
protection,
but
latter
it
equity
Forbes
vs.
(N".
Williams
vs.
Owen
(ubi
supra)
will
footing."
made up
no
for his
615 (1882).
See also Bowker vs. Bull,
in
said,
S.)
29;
Beav. 499.
Drew
vs.
Sim.
Lockett, 32
447
curities to
se-
first
been indemnified.*^
251.
One
to
whom
law
eration of
43
is
Bank
Nat. Exchange
Silli-
vs.
a lien
whether
insist on
a
the
bar
at
case
the
in
can
defendants
is,
whether
not
could
rules
...
displace.
it
is,
that
is
of proof is
created,
to establish
the contrary
it.
Un-
on
sureties,
later
subsequent
and
might participate in
claims,
the benefit
that
so
wholly
of
different
collateral
securities.
ticular
case.
be applied to
a par-
who
while as
is
laterals
It
In that case
be that there are no superior
equities, and that the collaterals
must be applied to the entire indebtedness.
This was so held in Fare-
may
vs. Wodehouse
(23 Beav.
This case was placed distinctly on the ground that at the very
time the surety entered into his ob-
brother
18
resemble
it if it should be supposed
that a number of notes were dis-
the facts
of tacking
to
claimed
I
is
is,
fair intent of
arate, the
ably;
yet
as
to
the
surety,
they
had
was the
the transaction. The
burden of proof
creditor
to
and thus
to
the surety,
ority."
show
their
is
on the
connection
pri-
448
into to
Thus where a
pays
is
all
and remedies of the creditor.^* Or where a judgment is a lien upon two pieces of land and the owner conveys
one of them, the vendee is in the situation of a surety, and to the
extent of the judgment which he is required to pay may be subrogated to the remedies of the creditor, and enforce the lien
against the remaining piece of land.*^
The same principle is involved where land is sold subject to a
mortgage which the purchaser assumes and agrees to pay, the
the securities
is
in the situation of a
surety,
and
as to
him
all
all
mortgage and
in the situation of a
is
to the
or otherwise, he
is entitled to
all securities in
entitled to be subro-
Where
*iConwell
vs.
McCowan,
81
111.
111.
477;
111.
602;
vs.
294.
*e
who pays
Marsh
vs.
the note
is en-
Durham, 79 Mo.
174;
Brown
" Woodward
B. 55.
vs. Pell, L. R. 4.
it).
KIGI-ITa
AND BEMEDIES.
449
titled to
Where a wife
joins in a
the land
will be sub-
It is held that
herself
life interest,
Bridgman
lin,
Johnson, 44 Mich.
vs.
W.
491; 7 N.
vs.
Contra
Applewhite
Humph. (Tenn.)
vs.
Shaw, 4
93.
an aceommodationwhile a principal
debtor as to the holder, is a mere
surety as to the drawer, and is enIt is held that
aceeptor of a
titled to
ties of
the
bill,
49
MS;
vs.
14
ariffiths,
W.
S.
vs.
Fitcher
903;
103 N. E.
soOhmer
7
Bank
Toronto
holder.
Hunter, 4 Bosw.
467;
Greenlaw
11
iS.
W.
vs.
Pettit,
357;
27'3;
case a vessel
common
87 Teiin.
The Hattie M.
In this
fault of
entire
that it
claim,
and
was subrogated
it
&
Ohio R. R.
South. 663.
=1
damaged
performance of
ys.
47il.
Boyer, 89 Ala.
of the
other wrongdoer.
was held
to the rights
by
Vincent
the
vs.
othpr
joint
Logsdon,
17
debtor.
Oregon
vs.
Van
THE 'LAW OF
450
who pays
Surety
252.
tlie
debt
SUEETYSIIIP.
is entitled
to be subrogated to a
is
same
creditors of the
by the
class^
to each
secured, debt,
and
is
is
entitled to receive
applicable
all
he pays
if
Thus a
letter of
amounted
The
to 625.
made
to the principal
were adminis-
re-
duction of the larger sum, and the balance, up to the limit of the
letter of credit to
it is clear that
the defendant would have received the full benefit of the divi-
dend of 8s. 7d. in the pound, as he could not have been answerable under the guaranty for more than the remainder, after
the deduction of such dividend and although the amount of the
debt does in this case exceed the 400, and thereby the position
;
of the creditor
is so
much
in the
affected
why
still
way be
guaranty or why
by the
viz., to
in any
;
Bardwell
vs.
Lydall,
489.
Bing.,
*
iSIGHTS
AND REMEDIES.
451
where
tlie
claim
is
in part secured
by a
surety,
may prove
whether he
it
may
ap-
only
the
insist
upon the
dend
is
paid the
augmented
sum
so that together
surety
amount
when
entitled
to receive
him
as co-surety.^*
When-
ever a creditor,
a bankrupt estate
to the
is
subject
of such prefer-
son, falls to
may
do so in the creditor's
In re Schmechel Cloak
3 Nat. B. Nev?s. 110.
person
name, and
63
In re Baxter
&
&
Suit Co.,
Ralston, 18 N.
B. R. 497.
b4
Pace
vs. Pace,
95
Va..
792 ; 30
S. E. 361.
THE LAW OF
452
SUEETYSIIIP.
It is held that where an insolvent dies, or his assets are administered through insolvency proceedings,
lateral security for his debt,
the
amount of the
upon which he
debt, that
may
he
make no
ac-
Such right
in
But
see
New
Bedford Institution
69.
65
National Bank of
Merrill vs.
Bank
Kep.
372.
chusetts
vs.
Chem-
Armstrong, 59 Fed.
"In MassaJ.:
Taft,
(Amory
vs.
Francis,
16
the
prove
only
for
itor
can
balance of his debt after the collateral shall have been applied. It was
so held by ISir John Leach, master
of the rolls, in
lor, 1
Russ.
Greenwood
& M.
185.
In
vs.
Tay-
Amory
vs.
Francis, supra. Chief Justice Parker repudiates the view that the secured creditor should be allowed to
prove for his full claim, without deduction for collateral, on the ground
that he 'would in fact have a greater
security than that pledge\ was in-
is
col-
paid in
full.^
It,
the rule in equity requiring a creditor with two funds as security, one
whole claim.
" The great weight of authority in
England and this country is strongly opposed to the view that a creditor with collateral shall be thereby
deprived of the right to prove for his
this point.
453
Subrogation
0253.
No one
among
co-sureties.
is
entitled to
any
to another.
own
common
burden.'^"
is,
to
oases
derson, 18 B.
peal,
45 Pa. St.
151;
Ap-
Miller's
St.
481
;'
West
pare,
is
Bank
1070.
common
which they
princi-
and
sustain, is that a
creditor who has provied his claim
against an insolvent estate under
all
lessens his
884.
vs.
that
limited liability as to each, the relation of co-surety does not exist and
on this account collateral deposited
with one does not inure to the benefit of the others.
See also German Amer. Savings
Bank va.
W. 123.
Fritz,
68 Wis. 390; 32 N.
454
and
ability to pay,
it
his co-sureties to
254.
An example
of the former
is
where a public
officer is
office,
co-
others.
required to
The
which another
is
already bound as a surety, or where bonds are given in the prosecution of legal remedies in the Appellate Courts in which
successive undertakings are required, generally results in plac-
ing the ultimate liability upon the last surety, through whose
may
between
as
for the prior promisor, yet if his contract is solely in the interest
regarded as debtor of
all
is
recover
67
Carpenter
in their management.
Lane, C. J. :
"
not
bound by law to seek indemnity;
yet
if
the
means
surety
is
of indemnity are
a,
common
benefit.
J^
J,
He may
not
will
See also
107 Ind. 266
McGehee,
61
Sanders
;
Ala.
Weelburg,
vs.
N. E. 593
440;
Owen
vs.
National'
Stohinn, 3
of Commerce vs.
Cal. App..608; 86 Pac. 981; Baber
Bank
^^^^^, 80 S- p, .
f^;
^
ssLeggett vs. McClelland,
39 0.
roa
^'S-
455
We
It is said, "
either of
the debtor alone, without the request or concurrence of the original sureties,
the debt
from him
by his own separate proceeding and for his own benefit, has obtained in equity either partial or full reimbursement
The doctrine established by the adfrom the prior sureties.
collection
we
surety
is
by substitution to the rights of the creditor against the subsequent surety to the whole extent of the
obligation of the subsequent surety
which precludes
from him,
coerced
surety."
right
""
This rule
surety
to
all
is
by prolonging the
to the prior
litigation
makes himself an
obstacle
troversy,
o Brandenburg
Mon. (Ky.) 397.
i
Ala. 783;
Dent
Kellar vs.
Admr.
vs.
Hill,
Wait, 9 W. Va.
Williams, 10 Bush
vs.
Humph. (Tenn.)
Lassiter, 16
247';
Moore
vs.
Fletcher
Opp
24 N.
vs.
E.
Ward,
974.
suretyship
guaranty
was that of a
upon a lease, and the
second was an appeal from a
judgment against the lessee for
rent.
The Court applies the rule
and urges two grounds, first, that of
first
I'itzpatrick's
41;
Flynn, 12 B.
vs.
In
125
this
Ind.
ease
241
the
'
THE LAW OF
456
to
SUEETYSIIIP.
loss to
payment
of
which
another
was
as a
from
mere volunteer.
loss,
.
and not
.
It is
of
disposed
of.
Upon
the de-
successive
sureties,
who become
bound by separate obligations for the
payment of the same debt, the equity
of the first,
liabil-
antor,
of time to
or
tained,
to
de-
guarantor on the
lease.
He adopt
it
for the
tor.
latter
view
kiss,
This
not maintainable in a case
like the one under consideration.
It
is
is
But
the tenant.
it is
his liability,
uncertain
who
is
person
antor,
fixed
sion
for
time forward."
The surety on the appeal bond in
this case was not a " volunteer " and
at once.
" By the voluntary intervention of
place
of
New York
cases
of this case.
An
457
Without the intervention of the later surety, the earlier promisor might be required to pay and suffer great loss and there is
no equity under these circumstancee in granting his exoneration
ex
rel.
was
of
liquors, conditioned to
pay any judgment that might be
entered for fines assessed against
toxicating
the
regulating
of
sale
liquor.
the sureties
ing required
pay,
to
be-
bring action
it
tion
the
to
judgment
original
on that bond,
and
the
was
held,
"The
appellee's
payment
or
we know
of
of the debt,
contribution
against
the
first.
The same principle applies to sureties on appeal bonds, bail bonds, in-
trine of subrogation,
judgment
It appears
like obliga-
also to be the
creditor, in the
Rosenbaum
121.
ren-
entitled to
who
ap-
other.
That the
pealed with
new
458
to require
payment of the
surety
first
is
might
efit
200.
to discharge attachment,
and judg-
in favor of the
own
not at the
I'isk
risk,
con-
and
or to the prejudice of
the surety in the second bond becomes bound for a purpose in which
both the principal and the prior
surety concur, in which they both
have an interest, and where the assent of the prior surety
is
express-
senting.
this
which
Scott,
J.
" In
regard to
is liable
of prior
exe-
the creditor,
tinct purposes,
was entered
securities in the
which he
or for
second surety,
the
principal
is
without
alone,
the
who may
when the
be prejudiced thereby; as
eflfect
of the second
bond
is
fixed securities as
when
into,
may
and in the
faith of
be presumed to have
...
the
first
execution
to
his engagement
the
of
Smith procured
for
his
By
bond,
principal
such security.
equity of the
superior,
entitled to be subrogated
and he
to
the
is
first
rights
surety
of
the
is
as
should be reversed."
this doc-
creditor
And
is
By
for
the subsequent
this sefor the
vs. Drakely,
40
459
255.
the surety.
If the surety holds property of the principal, or has a lien
as his.
it to
is
may
payment of
the
resort to such
his debt.
as in the case of
sideration that
specifically
way
plished."
The
discharged by reason of some act of the creditor, or by the operation of the Statute of Limitations."*
03
Owens
vs. Miller,
Pendery
50 0. S. 120; 38
vs. Allen,
N".
58 0. S. 480; 51 N. E. 39;
Union Nat. Bank vs. Rich, 106 Mich.
31<J; 64 Ni W. 339; First Nat. Bank
vs. Wheeler, 12 Tex. Civ. App. 489;
Clifford,
33 S.
vs.
W.
1093;
Lee, 11 Conn.
Alabama
Ins.
Vail
"It
ties are
better
vs.
Such
securi-
is
Bank
vs.
Bigler,
51.
Met. 19;
Cowan
vs.
Telford,
vs.
Mil-
vs.
Mor-
460
Where
is
And
if the
indemnity mortgage
rests, it will
A
to a
bona
fide
It is held that
him
of the principal, the surety can not imder the ordinary rule of
trusts, derive
trust
is
fully executed."^
65
358;
Ijames
^s.
Gaither,
Carlisle vs.
93 N.
C.
Wilkins, 51 Ala.
for the
payment
of a debt, receives a
371.
cipal creditor
(21)
it
:
was
held, Brink-
"Now,
it is
fa-
It follows
in equity, entitled
is,
from
we have
found,
indemnity
make
mortgage
L.'s
perfectly
available
of
to
themselves."
Md.
567.
66
Durham
67
Carpenter
vs. Craig,
vs.
79 Ind. 117.
Bowen, 42 Miss.
28.
Ch. 428.
9 B.
vs.
Young,
KItJHTS
is
AND EEMEDIES.
it
Nor where
creditor.
of the
461
it is
furnished by
The
distinction
is
"When
a debtor,
it
by a
ment of
accomplish
a debt will
cordingly give
all
;
so appropriated shall
this, it is to
because
it is so,
fund
is
specifically
the property
be appropriated
the debtor
ac-
be observed, as
the
All
it this effect.
fund
all
property, in respect to
which the
rule, for,
was not the property of the principal debtor, and has never been
expressly pledged to
payment of the debt, so no equitable conby implication into a security for the
Taylor
'
vs.
Farmers' Bank of
W.
/orthern Bank
it
70TTov4.
o,
'"Hampton vs. T.1,Phipps. -.nn
108 TT
U. ,S.
260; 2 iS. Ct. 622.
Continuing, the
Of course, if an ex,
A
ii.
u
prcss trust IS created,
no matter
by
,
whom,
nor of what, for the payment
Court says:
is established.
4.
i.
"It
IfJlheld
i!?!"
ties
by sureties for
.,,/,,
according to
its
it,
THE
462
I^AW OF SDEETYSHIP.
In Mississippi a distinction
is
made between
a security given
for the indemnity of the surety, and a security which the surety
it is
it Is
con-
But
ment of the
An
ties
to
may
debt, it
if the col-
it
be enforceable by the
creditor.'^
is
him
or not
'^
by the indorser
lien of a
mortgage held
ence,
In such
nor creditor
vs.
Co.,
the
equity,
could,
of priority
to
be
mortgage upon
the
benefit of such
The mortgage,
71
Clay
a,
benevolence."
72
Boss
vs.
Wilson,
S.
& M.
42 Miss. 28.
The
is
not
generally recognized.
Meyers
vs.
the
real
property.
cir-
South. 871.
(Miss.)
considered
Campbell, 59 N.
J.
L.
vs.
Whitney, 45
more especially as the Company was not able to pay its debts
note,
at the time.
pany
insolvent, he
to
maturity of the
Same
256.
463
is
all
note.'**
subject
is
ties
England.
bills
were
in bank-
by the drawer,
made permitting
the proceeds of
me
to say, that
supposing a commission
which would
debt,
unauthorized,
his lien
on the property."
" Petillon
Melendy
S.
vs.
Keen, 89
Mortgage Co.
vs.
111.
567
395; U.
Gross, 93
111.
Maure
vs.
Harrison,
Eq. Cases,
tosay that
if
A.
11
483.
'
all
464
moment
the
ered.
whom
to
an.
come
to
must
is
be,
could
creditors.
to
the securities in the hands of the acceptor, and that the holders
ac-
due the holders, and was not required to apply the security in
reduction of the bills and then respond in dividends for th
balance."
al.,
2 Glyn
De
G.
vs.
Royal
Bank, L.
es
Bank
vs.
of
other words,
if
5a.
full
first
Commercial
(1882).
ities
dividend of
In
leav-
as their
considered
that
dividend.
the
It
was
subrogation
621
Maure
vs.
is
257.
465
is
deprived of
The
creditor
he releases in
principal
if
to the
to that ex-
make the
do that which
is
necessary in order
where he neglects to
file
''^
same transaction
as the
suretyship.
Where a bank
creditor
ported
'
and
Under
was erroneously
the
these
seems to
me
authority
circumstances
that there
for
the
is
it
no real
proposition
in
trustee
that/ for
of
the principal
80
Hutton
vs.
Campbell,
10
Lea
Robeson
vs.
Roberts,
20 Ind.
creditor."
"Ante
re-
Court concludes:
Ga.
Toomer
vs.
Dickerson,
37 Ga.
11.
466
if a
the deposit, and the bank violates no duty to the surety in pay-
he
able,
may maintain
back what he has paid, at least to the extent of the loss resulting
from his failure to realize on his expected subrogation.^*
When
258.
The
where the
tyship,
set-off is
The equity
of subrogation
legal rights of
is
demand
made
is
principal.
of the surety,
surety,
demands of
the
the principal of
the balance of his claim against the creditor, as his claim could
small claim.
But where
to
fully established.^*
S3
Bank
Nat.
of
Newburgh
vs.
Smith, 66 N. Y. 271; Vosa vs. German Bank, 83 111. 599; Grissom vs.
Commercial Bank, 87 Tenn. 350;
10 S.
84
W.
vs.
Kingston Bank, 16
Ante
117.
vs.
Lewis, L.
Where an
R., 7 C.
unliquidated de-
iter resulting
from a
failure of con-
Cases
was permitted to be
an action against the
of the principal
Sec. 117.
See also
Beehervaise
P. 372.
N. Y. 336.
85
mand due
774.
Chester
But
508.
set
off
in
Where the
principal is insolvent.
an unliquidated demand
for breaeh
who pays
259.
467
the debt of
who
to
pro-'
tect
The
"
The
tion is
doctrine of subroga-
its
who were
in
It has been
been so applied.
who
who was in a
demand any security
alty.
make terms
condition to
is
generally per-
W.
''
6S'4;
83 Mo. 47'6
Hiner
vs.
Wis. 2013; 8
ST.
W.
864.
Mo.
3i87;
the
set-off
39 Wis.
may
be allowed without
in
any
inter-
Murphy
vs.
Glass,
I..
R.,
2 P.
Gadsden
(S. C.)
vs.
694.
See also
56;
Moran
vs.
Abbey, 63
Young
Ca,l.
199;
97;
Binford vs. Adams, 104 Ind. 41; 3
N. E. 753; Roth vs. Harkson, 18
La. Ann. 705; Brice vs. Watkins,
30 La. Ann. 21
Commonwealth vs.
Ches. & 0. Canal Co., 32 Md. 501;
Smith vs. Austin, 9 Mich. 465;
Desot vs. Ross, 95 Mich. 81 54 N.
McClure
107
Pa.
W. Va.
534;
vs.
Wilcox,
Miller, 29
Aetna Life
Middleport, 124 U. S.
;
Cbarnock
vs.
vs.
DaA^is,
vs.
Mk^^'^eil vs.
480; 2 S. E. 33B
Ins. Co.
Jones,
Watson,
Ifiil;
<J4i3;
S.
Ct.
625;
Atl. 876;
6fi
Cape Girardeau
134 S.
W.
1103.
at
the
request
of
ah
executrix of the owner for the preservation of the property in the interest of the estate.
The doctrine
rogation
to
the
extreme point
of
468
advised that the bond so signed by his agent was valid and bind-
ing upon
It
was
held that under the statute the signing by the agent did not make
a binding contract in suretyship, because the authority to sign
was not in writing, and that one paying the debt of another
under these circumstances was a mere volunteer and not entitled to subrogation.**
at the re-
who pays
either
an
money
to
an express
in the absence of
ment
one
would
agree-
implied,
be
if
But
may
and benevolence
'
and
is
resorted to
must be paid
at the
own
interest of his
may
to protect,
of
at
is
This
rule
may
be sup-
the one
Saunders, 77
Tex. 278;
13
S.
W.
1030.
88 Dawson vs. Lee, 83 Ky. 49.
But see Capehart vs. Mhoon,
Jones Eq.
(N. C.)
178.
principal
is
469
in-
is
is
him to subrogation.""
one who has a lien upon
services to
and support
it
entitle
W.
9 S.
vs.
the matter
so
oiHuffmond
vs.
Benee,
128 Ind.
also
See
Price
ment
is
vs.
Sanders,
60
....
in respect
of
made
or
order to entitle
27 N. E. 347.
131;
payment or advance
831.
money advanced, in
him to subrogation.
So far as subrogation
con-
is
Ind. 310.
of necessaries for
liv-
was
apart from
ing
her husband
husband.
.
fecting a substitution.
liability
There never
on the part
of the
who
fur-
therefore
vs.
subrogate,
express
or
some
or
implied,
obligation,
to
in-
and
a decree should be
entered in her favor against the defendant in this suit. If the premises are correct, manifestly the conthat
agreement,
terest,
proposition
vs. Pitfield,
the
titled
into
itself
can be no
subrogation unless there is something to be subrogated to.
A debt
Morion, J.
was any
solves
P.
&
DeG.
J.
J.
45.
&
470
Conventional subrogation.
260.
Conventional subrogation
is
The convention
may
payment
of
less
chaser to
is niade.
pur-
all
ment before
it is
due
may
who
is
agreement,
is
the
is
the
the
is
arises
such time and for such part of the debt as the parties in
at
tlieir
Where
a mortgagee receiving
brancer of the
first
same right
as the mortgagee,
case
in
Simpson,
^But
,'
to
Walker
Pennsylvania,
7
Watts &
Serg. 83.
,
vs.
.
principle."
"Admit-
so
it
it
matured, agreed
it as
a subsisting
was considered
that
471
by reason of this agreement the junior incumbrancer was subrogated to a prior lien for the installment paid as against the hal-
The Court'
anee of the installments due the senior mortgagee.
" If M. had paid and taken up the coupon notes in con-
said
troversy as a junior
option,
company
in
the notes, subject only to the condition that he could not enforce
payment
their
But
mained unpaid.
re-
prior
by
property
appropriate
amounted, in legal
pany of
its
foreclosure
to say, as a
That
proceedings.
effect, to
right to insist
is
lien
for
was
satisfied, as it
would
title
acquired through a
"^
as against other
made on. a mortgage under an agreement between the debtor and creditor and the one paying, that
where a part payment was
attached
was postponed
gation."
93
Morrow
et al. vs.
United States
'*Shreve
Eq. 76.
vs.
Hankison, 34 N.
The Chancellor
partial
J.
states the
" It is urged, on the part
of Vanderbeck, that the rule which
rule thus
is
for
472
Waiver
261.
of subrogation.
may
at
Such voluntary
contracted to receive.
all
act of waiver by
An
involuntary waiver
of.
no
it
ment of the
effect,
and
immediate
establish-
claim of the surety against the principal for indemnity has be-
is
a conclusive
upon which
right
it is
based
is
barred.
The
statute begins tp
makes payment
the
sp-
subrogated
be
the
the
of
made by
in
payment
is
declaration
the
release
well
settled
McAllister, J.:
that
u,
111.
"It
surety
is
can
neither
for
i,.
j.1.
i-
law,
equity,
eurity held by
to
him
called a
shall be assigned
the creditor."
App.
....
recognized
When
the right
express agreement,
that
it
it is
no obection
mortgage or other
security."
Platte
m.
jng^
Hutch eson
Ct. 96.
vs.
(Pa.)
190;
473
less
deemed waived
as to
^262.
The
maxim
the
is
General
that equality
is
equity.
principles.
between co-sureties
The
earliest adjudica-
tions
common
by persons having a
liability
edy, since
contribute to the
common
to
as
one was
The equity of contribution between persons jointly or sevbound for the same duty has always been considered
erally
98BeHnett
Wake
vs.
13; 12
,
,..
vs.
49 Miss.
DO'S;
Maxey
30 Tex. 37o;
Yerff
(TpTin
Jn
J
"Gring-s
Smith
X.
Md.
E.
Bushong
Hammond
Mo. 660;
82
Cook, 45 N. Y. 266;
MS Mass.
Traders' Bank,
vs.
vs.
Taylor,
Myers,
vs. Carter,
10
W1
\
\
Appeal,
o.
89
-n
o,.=
Pa. SX;
Harbin, 124 Ind. 4'34;
1051
Noble vs. Turner, 69
vs.
51i9;
Fidelity
Atl.
124;
American
^cc*
Sewer
98
Crawford
vs.
Richeson, 101
111.
351.
^ ^Ji*
B. Mon.^^^,t?>Y,7^(Ky.) 131.
99
Wesley, Church
Stemmons, 4
vs. Moore, 10
Rutland Bank,
''"' Oflley
vs. Johnson, 2 Leon
166; Layer vs. Nelson, 1 Vern. 456;
Kogh's Estate, 148 Wis. 548; 134
N. W. 663. The right to contribution is not affected by the fact that
""^ "^ ^^^ t'^^o sureties is a surety
^^^'^ t^, tber
ff /Pf
jg
g^
surety^^i'
for accommodation."
S.
u.
F. & G. Co. vs. MeGinr,;.'
Admr., 147 Kv. 781; 145 IS. W, 663.
474
clear and undoubted, and courts of both law and equity no-w
apply the remedy with great liberality to the one invoking such
relief.
Some
difficulty,
is flexible
enough
meet
to
all contingencies.
The
is
upon which he
all cases
bases his
of co-surgties,
as the earlier surety often signs, and even pays his obligation
the
had
all
" It
to.
is
But
contribution.
this is said to be
on the foundation of
con-
contribute.
to be
is
justice,
is,
and
is
The
it is
reason
partic-
may
compel
On what principle
bound.
bound
What
if
Can
it
What
....
At law
common burthen.
might
have
been
balance
due
The
ed.
bonds, but here the balance
,the
Which ought
alty of one.
calls
and
in aequali jure,
101
Deering
He
whom
on
the crown
^"^
shall contribute."
&
happens
pay
Winchelsea, 2 B.
va.
C,
P. 270; S.
to
all
47S
common duty
general acquiescence in
upon the basis of equitable obligaand that the court should un-
There
is
doctrine
the
tion,
to
and not
consider
a legal
adopt
necessary
it
fiction
"
The right
to con-
pends
of
tion that
stand
in
The
engagement.
other's
equity springs
when two
the
the benefits,
all
equally
position.
im
'
the
all
burdens
the
of
equality
Robinson
is
vs.
equity
'
Boyd, 60 0.
We
limited,
nor
it
It is
White
vs.
Banks,
21 Ala. 705,
" Sureties have the
each
other,
contribution
proportion
in
from
to
the
amount paid by each upon the common debt; and this right is the
result, not of any implied contract
between the parties, but of an acknowledged principle of natural justice, which requires that those who
voluntarily assume a common burden should bear it in equal proportions."
111.
pie,
vs.
Wood,
3 Ired. Eq.
ex-
is
common
that
is,
tribution so
no privity
between them.
was
"The
of contract
what
Goldthnaite, J.
right to claim
57;
S.
of
applies."
charge
burthen."
to
implied
of
reit
money
paid,
it
is
476
THE LAW OF
The
STJEETYSHIP.
by adopting the
right
fiction, in
many
entered into the contract of suretyship upon the mutual underimplied by law.
In a joint contract for the
benefit of all, each takes upon himself the liability to pay the w^iole
express or
either
....
which
each co-contractor ought to pay as
between themselves; and each, in
effect, takes upon himself a liability
debt, consisting of tlie shares
of his share.
amount
Each, therefore,
may
was
and the
liability in
it
who
it."
14 Ves.
Jr.
says:
"And I think that
properly enough stated as
depending rather upon a principle
of equity than upon contract; unless
164,
who
light
is
Bartley, C.
tribution
among
which equalizes
ple of equity
ty
is
his co-surety.
established, the
operation estab-
assumpsit,
Courts of
that
Law
in
modern times
have assumed a
juris-
See also
Y. 601.
bur-
equity being in
its
sureties i4 founded
gation
legal
sufficient
contribute,
to
from a concurrent
pay a common debt."
resulting
liability to
Bradley
Jewett, J.
vs.
may
pal,
such
princi-
originating
contract
at
Agnew
32,
vs.
Kennedy,
Bell.
J.
Watts (Pa.)
47Y
who were
all
collaterally
contracts
apply."^
263.
ments.
bound for
each other."'
may
well be con-
on both for
on contract; but
its
foundation;
it
for
although, gen-
no express agreement
entered into between joint sureties,
yet from the uniform and almost
universal
understanding
which
seems to pervade the whole community, that from the circumstance
erally, there
is
102
Buahnell
vs.
W.
Bushnell, 77 Wis.
The Statutes of
Limitation in Wisconsin provide a
limitation of six years upon an action on any contract, obligation or
435; 46 N.
liability,
442.
express
or
implied
(Sec.
cognizable
4221, Sub.
in
equity
(Sec.
'
4).
The same
distinction for the purpose of applying the statute of limitations is made in Ohio. Neilson &
the
and
and
arise
them,
equalize
may
plied contract."
See
also
Cox, 7 T. B.
elder
vs.
Fiske, 17 Mass.
464.
0. S. 652.
(W. Va.)
9S6.
is governed
by same statute which limits the
action on the principal obligation,
Train vs. Emerson, 80 S. E. 534.
"s Deering vs. Winohelsea, 2 B.
& P. 270; Schram vs. Werner, 83
Jlun 293;
32
N^.
Y. S.
99S.
478
amounts
their liability
In the matter of contribution between sureties bound by different instruments the rule is the same whether the sureties are
each bound for an aliquot part of the debt or for the entire debt.
If the latter, the relation
respects as
if
is
the same in
If,
all
however,
is
common
to both.^"'
It is
of the
obligation of co-sureties to
contribute to each other has grown
out of that favorite rule of equity
It is not
that equality is equity.
at all founded upon the idea of contract between sureties, and may be
Invoked by the one against the other
to
pay
although
without any knowledge down to the
time of payment or later that his
co-surety has also obligated himself
the principal debtor,
for
liabil-
Pr.
6;
Bush
American Bonding
S.
2'16;
Co. et
al.,
8'8
0.
102 N. E. 719.
470;
see
ities
479
But
if the
under-
takings are for distinct parts of the debt of the piincipal, as dis-
tinguishd
to
the
sum
to be secured.
a distinct transaction,
enable one
who paid
It
was considered
and not
his
bond
to
that each
bond was
have contribution.^""
which another
is
by his principal against his liability as surety, and default being made, paid the full amount,
it was
was not thereby made co-surety
on the original bond, and could not enforce
from them.^
contribution
lo'
Coope
vs.
Russ. 426.
in
his
undertaking,
sum
al-
en together
contract
constituted
creditor.
los
Friberg vs.
Donovan, 23
111.
Watts
& Serg. (Pa.) 155; Brandenberg vs.
Flynn's Executor, 12 B. Mon. (Ky.)
397; Chrisman vs. Jones, 34 Ark.
73; Rosenbaum vs. Goodman, 78
1
734.
loo
sur"Bties in
as
\he indemnity
an
entirely
and
is
bond constitutes
different
transaction,
480
264.
default of another
in suretyship,
is
This
is illustrated
pay the
first shall
This
title,
first
is
does
because
they are sureties for the earlier indorsers and not with them.
The same
is
he assumes the
who
It adds nothing
to
the
sums
But
see
vs.
Roots, 21
How.
111
Bulkeley
reason."
McDonald
470; McCarty
McGfuder,
its
vs.
vs.
432.
vs.
House, 62 Conn,
pleton, 60
439;
Schram
293 32 N. Y.
Johnston, 82
;
vs.
S.
Werner, 85 Hun.
Hamilton vs.
995
111.
39;
Adams
vs.
Where a
contract
is
vs.
it
is
on him
vs. Smith,
blank, the
481
the others."^
In the absence of
conditions
by
parol,
all
may
and
if a
be shown
even
ties
come
who
co-sureties.^^*
265.
ties.
The
may
assume
between themselves, it
would be manifestly an anomaly in equity to permit one party to
the agreement to violate his compact and assert his so called
others to
a larger liability as
The
right to
covered
equity of contribution
"
it
and
not
be
enforced
against
the
last
surety.
"aCraythorne
Vea. Jr.
Swinbourne, 14
160; Chapeze vs. Young, 87
Ky. 476; 9
S.
vs.
W.
surety promises
Where one
Schram
41.
n* Grouse
vs.
Wagner, 41 O.
S.
470.
But
see
Bobbitt
vs.
Shryer,
70
Melms
vs.
Werdehoff, 14
Wis. 18;
Adams
vs.
Flanagan, 36
Vt. 400;
Sherman
Ind. 513;
198.
vs. Black,
49 Vt.
482
he in
him
promises to indemnify
effect,
and
liability
it is
^^
266.
Where
obligation
is satisfied,
all
it
was held
that
sit-
uated."'
iiB
Thomas
Cook, 8 Barn.
vs.
&
Pick.
97
Horn
vs.
Bray, 51 Ind.
462
Baldwin
vs.
177; Mansfield
Mass. 15.
Fleming, 90 Ind.
vs.
Edwards,
136
neRose
gon, 269
vs.
32.
WoUenberg, 31 Ore-
44 Pac. 382.
See also Hoggatt vs. Thomas, 35
;
Wolverton
Contra
Va. 64; 6
S.
vs. Davis, 85
E. 619.
sums and
fell
due at different
483
In those States where stockholders of a corporation are indiassessment for the payment of oorporate
vidually liable to
debts,
if
is
is
267.
It has
if
presumed
demnity to
him
to
make
the request
in-
will be implied.
Kenyon assumed
upon
be beyond ques-
it to
is
" I have no
doubt that where two parties become joint sureties for a third
person, if one is called
to
person to
times, Allen, J.
do
whom
the security
rights
and
is
fell
is
given, there
no pretense
ability,
ties
is
for
under
It
itself.
such
all sure-
might be that
circumstances
the
to hold
one
common
more
of
of their
not
creates
which
fell
place
them
all
under a common
li-
agent, it
such
circumstances
is
Under
equality
is
Wolters
vs.
Henningsan, 114
484
In nearly
all
Unless there
is
to the con-
co-
surety does not appear to furnish any reason for depriving the
co-surety of contribution.
" If a surety
we can
fited
as a principal,
signing at such request as his surety only and not liable to contribute for his benefit.
So,
is
upon an
But where
parties standing in an
we
to eon-
"8 Turner
vs. Davies,
Daniel
vs.
37
Ballard, 2
2 Esp. 478
N. H. 567;
Dana (Ky.)
see
Hendrick
which was:
296.
120
Cr.
But
195.
vs.
Whittemore,
105 Mass. 23. Where the court approves the charge of the lower court
fied
of or
cover, but
if
re-
it.
268.
The proposition
self-evident that
is
485
by
active misconduct,
Where the
istrator
plaintiff
co-sureties of
an admin-
losses
which trust
it
it
made
was
at-
own
act
he could not claim that the defendant owed him any duty
loss,
TO contribute.^^^
It
was
sheriff
a surety
upon the
bond of the sheriff and recovery was had upon the bond of the
latter for the
contribution could be
had by
the deputy.
^^'
The misconduct of the surety which deprives him of contrimust be something more than a mere moral delinquency.
The rule covers only such conduct as amounts to participation in
the act which causes the loss.
If the surety by his example or
by his own solicitation leads the principal into habits of vice,
bution
^^^
it
vs.
Winchelsea
^''*
heretofore con-
him
with
that
in
this
action."
122
Eshleman
S.
Block
W.
vs.
Camp, 71 Ga.
144 Pa.
vs. Estes,
W.
41 S.
But
led to his
92 Mo. 318; 4
Wis. 373.
124 2 B.
731.
10,^2.
Gaskill,
60
125
Ante
&
P. 270.
Sec. 263.
38
486
'
a court of
not
is
sufficient.
loss arises,
It
must be pointed
and must be in a
'
upon which
to the act
the
In
evil
When
269.
No
contribution
may
this
was not
be enforced.
common
who
burden.
demand
his
it is
fit
not to enforce
no injury
to the
other."'
To permit
ment
as
he pays
i26Davies
W.
53,
vs.
it,
Humphries, 6 M. &
" If a surety
Parke, B. :
paid
more
than
his
proportion,
it is
not clear
no
ly
right
den.
537;
G. 203
vs.
;
Swinburne,
Ex
parte Snow-
Camp
vs.
Bostwick, 20 0.
S.
vs.
vs.
584; 8 N.
and consequent-
&,
is
it."
which
Morgan
44;
442;
action,
of
487
a multiplicity of suits.^^""
If the
payment by
sum
and contribution
The
and a
common burden
'^^''
arises.
may
made by
the note of the surety, and the acpayment by the creditor gives immediate right of contribution, and the right may be enforced even
though the note is unpaid/^" and even though the maker of the
Payn:i3nt
be
note
is insolvent.^*"
Where
and returned
it to
it was held
might be had against his co-
suretv/'^
It has
a co-surety,
is
unable to recover
is
may
that contribution
latter.^'^
be enforced with-
128(1
418.
Stirling
vs.
Burdett,
12?
Boutin
276;
85 X.
W.
Mason
vs.
128
55; 34 X.
ys.
W.
Estell,
It
vs.
I'lO
4018;
Ryan
vs.
Krusor,
12 N. E. 131.
Brisendine
Wis.
Contra.
vs.
Martin,
Ired.
964.
Pierron,
Wyok-
Atl. 679;
Green, 64 N. C.
Wis.
69
42 N. J. Eq. 642;
Parham
480; 35 S. E.
oOB;
off,
Ch.
536.
i32
4316.
vs.
Fry,
Ala. 440.
(Ky.)
Mon.
16 0. S. 552, that the plaintiff cannot recover costs in contribution unless the co-surety is notified of the
T.
B.
vs.
63
N W.
41.
(Ky.)
45;
Glasscock
;
Hall
vs.
47;
Buckner
vs.
Stewart,
314
THE LAW OF
4,88
Equitable contribution
270.
upon
The
he has
STJBETYSHIP.
call
debt
it
is
upon
called
to
would cause
which
payment would not prevent.
tribution after
" Obviously
if
man
if a
might be a ruinous
the whole 10,000 at
it
summonses
against his
^^*
It is clear that
requiring payment to be
.cases.
This
is
brou^t by the
surety called
upon
co-
mon
burden.
equity."^
529; Goodall vs. Wentworth,
go Me. 322; Eankin vs. Collins, 50
Ind. 158; Boutin vs. Etsell, 110
Ala.
W.
Wis. 276; 85 N.
134
Wolmershausen
964.
vs.
GuUiek, L.
135
vs.
payment
of
the
entire
the
to
debt,
lief,
creditor
stating:
declare "the
make
their
respective
shares.
(1893) 514.
a,
"I think
Plaintiff's
p.ospective
re-
that I can
right,
order
and
under
direct that,
upon the
Plaintiff
and
pay
Under
his property.
also
is
about to
these circumstances
would be
it
fest
489
him
maniadjust
to first
Amount
271.
recoverable in contribution.
who
is called
creditor
may
recover
insti-
tuted
other
on the amount
is
paid.^'
claims against the debtor for less than their face value,'*' he
must
settle
own
ing her
the Defendant
share,
payment or
liability,
and
is,
Wagenaeller
& W.
i38
from
Hodgson
See also
111.
Hyde
532;
vs.
liability be-
own
share."
Baldwin, 65
vs. Tracy,
172; 3 N.
Etsell,
110
Wis.
92.
is^Lawson
275;
Ex
vs.
Wright,
Cox
400; Buckmaster
vs.
Grundy, 8
111.
Hoskins, 45 Miss.
vs. Eumsey, 33 Mich.
Mandigo, 42 Mieh.
vs.
W.
1" Security
vs.
927.
Ins. Co. vs. St.
Paul
vs.
Day '^. W.
i86Bowen
183; Smith
183; Pashby
421.
Boutin
Co.,
11 S.
W.
vs.
vs.
vs.
92;
443.
i*i
490
272.
who
who
to be
are solvent.
no reason
why
tribution arises at
law or in equity. In either forum the remis enforced upon the theory that equity will
edy of contribution
common
co-obligors.
It has, however,
in-
tribution
rule
is
is
law
273.
as in equity,
from the
calculation.^*^
Moore
400|Gross
vs.
vs. Davis, 87
12l1^ZlZ'^:.T!..i1ol.'lA;i.
672 38 N. E. 484 Sloan vs. Gibbes,
56 9. C. 480; 35 S. E. 408; Liddell
vs. Wiswell, 59 Vt. 365; 8 Atl. 680.
;
is
as
in an
is entitled
^-^
to the
tn^m.
The
insoWy
better
of
any
of
whc
are
491
and
it is
promisor
and the
assets distributed
may
iheirs.^*'
274.
If a surety receives
it
and
their
pro rata share of the indemnity, if the indemnity has been reduced to money, must be deducted from their prospective liabilities before recovery can be had in contribution, or if the
l<4
Johnson
vs.
Vaughn, 65
111.
361.
147 Stevens
519.
Md.
17 N.
vs. Steth,
44
492
value of the indemnity has not been established before contribution is enforced, the co-sureties
may
it
be
shall
finally ascertained.
bill
They paid
The
demnity.
plaintiffs
bill
were entitled
any part of
it;
sued
to the relief
for.^*^
period, as
where
required by
who make
to the
an additional bond
as
and
equally
of the suretyship
took,
fit
his
co-sureties,
to
bring that
be ascertained what
is
it
may
the ultimate
may
may
case
proportionably,
as
the
require."
mons
vs.
W.
Va. 519;
S.
Vt.
E. 898;
617;
11
B.
80 S. E. 67.
AND EEMEDIES.
filGHTS
have credited
be entitled to
to
493
them a share in
the
indemnity
is
in-
The
put
him
in the situation of
tutes
Where one
or
more
indemnity furnished
will constitute
and the
is
it
if the
lost or wasted.'^'*''
judgment,
it
14S)
Farmers Bank
vs. Teeters, 31
Minn.
314; 56 N. W. 36; Brown vs. Ray,
18 N. H. 102.
See also Wilson vs. Stewart, 24 0.
S. 504.
In this case a surety held a,
mortgage of indemnity to secure him
against loss by reason of his surety
150
Mueller
vs.
Barge,
54
plied
thus com-
exonerating his
co-sureties
pletely
balance
indemnity he applied pro rata
upon the other debts. The co-sureupon the debts not settled in
ties
full,
0. S. 36.
paid in
full,
Contra
Titcomb
vs.
McAllister,
Davis
Toulmin, 77 N. Y.
vs.
280.
But
422.
152
Paulin
vs.
Kaighn, 29 N.
J. L.
480.
i^a Steele
285
Frink
vs.
vs.
Mealing,
Peabody, 26
24
Ala.
111.
App.
494
his co-sureties for the real value of the property without regard
to the price at
The
surety
it
cipal in the
lant, that he
amount
as his co-surety, at
actual value, or at any greater *
we
law he could not recover of the appellee any more than she was equitably bound to pay.' Prima facie, ap'
was
plaintiff,
in
satisfaction
of
such
li-
We
the sheriff of the principal's property; for this right he clearly had.
What we do
decide
is
that
if
the ap-
Appellant,
satisfied the
it is clear,
155
Williams
vs.
Kiehl,
127
Cal.
money, be compelled to wait unhe can realize upon some collateral indemnity which may require
years, while his co-surety, who was
his
til
as
much bound
in Jaw
and morals
as
himself by the bond, has paid nothing ? This would not make the bur-
its sale,
a wrongful disposition
The burden of finding a.
of it.
market for it and applying its value
toward the debt of the principal
should be borne by one as well as
the other. There is no reason why
or to enjoin
no
off-set
495
tained, either
by reducing
it
to
money
its
value
is ascer-
or otherwise.
Where
and
suretyship
own
Surety
275.
may
payment by
Whenever the debt matures a surety may pay the same and
even though no demand is made upon
enforce contribution,
him by the
ity ^0
creditor.
It
is
liabil-
threatened.
action
the co-surety
who has
nardy,
But
19'6
Weitermark,
waiting until
fore
Ala.
nity,
Denio
ty his proportion."
Mosely
59 Mo. App.
Vaughn, 65 111.
vs. Fullerton,
M3; Johnson
vs.
425.
But
Ala.
see
Morrison
vs.
Taylor, 21
vs.
Foster,
Skrainka vs.
Hardell vs.
Carroll, 90 Wis. 3150; 63 N. W. 275;
Glasscock vs. Hamilton, 62 Tex. 143.
Contra Stockmeyer vs. Oertling
35 La. Ann. 467.
loiS
N.
7719.
"6 Sherman
4^6
merely
respond in damages
to
if it
So
by the
ute of limitations,
its
payment
will be voluntary,
stat-
and recovery
Where
is
'^
contribu-
Such voluntary payinent extinguishes the principal contract and prevents the occurrence of the condition which fixes
ft liability upon the sureties.^*^
tion.
los
J
Halsey
vs.
vs.
Dussol
vs.
137; 12 N. E. 131.
159
" It does
Briiguiere, 50 Cal.
cipals.
Eq.
Hooper
vs.
(N. C.)
115.
could
make no
on
it,
had been
His voluntary
payment of the note after its maturity
was
Houck
vs.
claim
valid
Morrison, 3
not obliged to
vs.
Chamber
of
Com-
able
vs.
is
that fact.
Warner
He
bound to
to the suit."
large
see
debt.
is
But
contribution.
for
leiLadd
therefore in compliance
tion.
195; 6 N. E. 594.
that a for-
incurred by usury.
tion.
knew
unless he
pay the
If the hold-
defense.
of the note
er
ber
497
Where one
action of
a,
Commerce
of the building
participating surety.
To prevent default in
the terms of this bond certain of the
sureties advanced money borrowed
it
matured.
pay to
the insurance company such damages as it might sustain in case of
a breach thereof by their principal.
sureties
is,
liable to
to perform
ability
in legal effect, to
was
them
to
as to whether it
credit for
The
composed principally of sureties on the bond, seems
to have volimtarily borrowed the
money, and paid the obligations of
the Chamber of Commerce upon their
own responsibility, and without consulting the principal.
But, assuming that, if they had not done so,
there would have been a breach of
the building
finance committee,
was
own judgment
him
better for
li-
and, in case of a
to
to
plete
of his contract,
Each surety
upon the letter
all.
to stand
it failed
Their
pany alone, and there is neither allegation nor proof that it ever made
or had any claim for damages under
the bond. But it is argued a breach
of the bond and consequent damages
ties
had a right
Now,
in
this
ease,
there
was no
498
may
if the
pay in certain
and thereafter one pays the whole, it is held that
the one paying is not entitled to contribution/'^
Judgment against one surety is prima facie evidence of deco-sureties to
proportion,",
tribution,^"*
276.
co-sureties.
re-
But
it
is
held
that if the remaining surety pays the entire debt, waiving the
may
that he
itor,
by the
releasfid
creditor.^"'
other re-
all
The
surety in a joint action against both sureties does not bar the
surety
whom
nom-participating
bind
to
surety.''
vs.
162
Golsen
vs.
1S3
Curtis
vs.
184
Breckinridge
Dana (Ky.)
168
Kramph
Cathcart
Briggs
cock
vs.
vs.
vs.
vs.
Ante
is' Hill
Olapp
iss
613;
(Tex.
iss
vs.
Sec. 114.
vs.
Currier
Murphy
Koelsch
Foulke,
L3
Mo. 561
Baib-
576;
213
N. H.
Gage, 21
vs.
N".
557.
Baker, 61
vs.
vs.
Me. 541
61
Gray
15
Civ. App.)
0. S. 207; 39
arose
Morse,
Rice',
(S.
W.
396.
Mixer, Admr., 5a
E. 417.
upon a bond
of
This ease
a treasurer.
In a joint action against the sureties judgment was had against one
110.
Carter,
South. 487.
Taylor,
vs.
lee
The one
in contribu-
is
499
by
oper-
creditor is barred.^'"'
Bankruptcy of a surety
277.
contribution.
The
ITational
direct pro-
tribution.
may
be classified if
it is
included at
upon
The term " implied contract "
liability
all,
is
act."^
The discharge of
a co-surety in bankruptcy
under
this act
could not therefore conclude the latter; though parties to the suit they
Minshall, J.
it
action
from the estate of his deceased cosurety, if, as a matter of fact, they
were co-sureties on the bond, and the
plaintiff
charge
all,
proportion, of the
common
liability.
The subject matter of the two actions is different. The former was a
suit on a treasurer's bond by the
obligee against the makers as codefendants to recover for a breach of
it.
The present is a suit by one
surety on the bond against the estate
of another for contribution;
and
had not accrued at the time of the
former suit. It is not based upon
the bond
It is not enough
that an issue may have been joined
between the obligee and the defend-
and
637.
^Hood
vs. Morgan, 47
E. 911.
170 Cawthorne vs.
Weisinger,
Contra
Va. 817; 36
Ala. 714;
W.
S.
Camp
vs.
Bostwick, 20 0.
Tex. 428; 31 S.
Oontro Cochran
vs.
Walker, 82
Ky. 220.
the latter
iTi
1898,
on the bond.
National
Sec.
63
Bankruptcy Act of
(a)
(4).
500
raises a question of
other surety
In such a
some
difficulty
is
case' it
the making
is
an equity which
Under the
first
The
acts,
earlier
bankruptcy
would not
be.
act of 1898,
to his co-surety
It
it
acts of this
may
acts.'"
ute as a co-surety
is
made by
is
expres-
The act
contribution in
these terms, Sec. 5068, " In all cases
of
co-sureties
for
and contingent
contracted by the bank-
of contingent debts
liabilities
rupt,
vided
the
dividends,
the
if
contingency
for
the
final dividend."
it
ing
(Law
of
1841).
sureties
several
rupt.
501
entitled to contribution in
be
upon the
maker.
penalty
against the
liability
was
ty
discharge.
co-surety.
payment by the
after the
It
sure-
bankruptcy of the
was
held,
one of the sureties of Mahoney and Trull. His liability as coobligor with the plaintiff was ex-
Gardiner, C. J.
favor, as
and
moment he ceased to be a
him for a common
or a common principal.
from that
co-surety with
liability
.
suit could
sureties
relation between
him and
a,
the defend-
claim for
And
What
the
parties
law has
the
principal.
done without
it.
When
the sureties
But the
obligation
had become
fixed
ity
was
ascertainable,
has arisen,
discharge either of
obligation
thereby
was antecedent.
without remedy,
the law to
which
If the plaintiff is
it is
he, in
have assented."
by an act of
common with
presumed to
502
It
is,
Where one
is
by two
persons,
in fact a surety of
175(Z
It is
tion.
be sufficient
if
in-
demand
is
provable."
from it.
The English Bankruptcy Act oi
I8S3 provided, Sec. 37 (3) for a discharge from "all debts and liabilpresent or future, certain or
contingent, to which the debtor is
subject at the date of the receiving
order."
This was construed to include a
liability for contribution where the
solvent surety was called upon to
ities
pay after
the discharge
ruptcy of his co-surety.
in
to
bank-
R.,
de-
of the
includ-
470;
McDonald
McGurk
vs.
vs.
MeGruder,
3 Pet.
Huggett, 56 Mich.
Ii87;
22 N. W. 308; Harrah vs.
W.
Doherty, 111 Mich. 175; 69
242; WiUis vs. Willis, 42 W. Va
522; 26 S. E. 3V5; Harshman vs.
Armstrong, 43 Ind. 126.
175 Easterly vs. Barber, 66 N. Y.
433; Preston vs. Goaild, 64 Iowa 44;
1'9 N. W. 83i4; Kiel vs. Choate, 92
Wis. 517; 67 N. W. 431; Smith vs.
Morrill, 54 Me. 48; Harris vs. Jones,
23 N. D. 488; 136 K. W- 10O; Wilson vs. Hendee, 74 N. J. L. 640;
66 Atl. 414.
n^ia Citizens
Burcb,
14)5
N^ational
N. C. 316; 50
Bank
S. E.
vs.
71..
503
an obligation of contribution.
signing
a
others.'"
By
The right
279.
of
whole or in part, he
is
amount paid
who engages
to
fault,
The
in the transaction,
that
is
is
co-
sureties.'^*
From
the time of the very earliest cases there has been a gen-
eral acquiescence in
the latter,
of reimbursement,
ITS
Hagerthy
vs.
Phillips, 83 Me.
1432;
Bunker
Civil
law will
lie.'^
vs.
Code,
See.
of
& Deposit
75 N. H. 50(6; 77
upon implied
if 9
R.
Fidelity
ley,
at
to be
590,
presumed
IT'
is
Ati
402.
contract.
Toussaint
100;
Wood
vs.
vs.
Martinnant, 2 T.
Leland, 1 Met.
504
sance, except
upon a
bail
bond
arises
from the
also,
neglect of the
is,
and
it
would be against
public
o71
Katz
Moessinger, 110
111.
370;
Admr., 70 Ala.
Sayward, 5 Me. 504;
Lougliridge vs. Bowland, 52 Miss.
546; Cotton vs. Alexander, 32 Kan.
339; 4 Pac. 259; Hazleton vs. Valentine, 113 Mass. 472; Blake vs. Downey, 51 Mo. 437; Hellams ts. Aber-
326;
Smith
orombie,
vs.
15
S.
C.
110;
Boyd
vs.
Cooper
vs.
Parker,
176
Ala.
ISZ;
57 So. 472.
If
contract of
the surety enters into the undertaking, the promise implied by law wiM
be merged in the express agreement,
and recovery will be limited to the
terms of the latter. Roosevelt vs.
Jones
Orchard, 16 C. B. 6|1|4.
Chipps vs. Hartnoll, 4 B. & S. 414,
Pollock, C. B.: "Here the bail was
vs.
where
a pro-
him.
There
is
no
and with
debt,
re-
Strob.
(S.
C.)
87.
567.
illegal.
it
505
as
officer,
is illegal,
funds in
tlie
bank of
the
in-
The law
will not
payment of the
all
of the court;
his principal's
performed."
181
183
Ramsay's Est.
111.
wright,
signs a
550;
G.
vs.
Whitbeek,
56 N. E. 322, Cart-
J..
"When
a.
sureiy
imburse
implied contract of
ef-
loss
reason of such
they
made up the
signing,
and when
implied
promise related back to the date of
deficit this
inter-
Johns.
THE LAW OF SURETYSHIP.
506
It is held that
executes
his individual obligation for the benefit of the firm, and repre-'
sents to the surety that it is a firm debt,
to
raises
the
all
more
whom
Promise of indemnity
or guarantor
is
will,
of
the principal/*"
made
is
may
at the request of
recover indemnity,
183
S.
liie
Purviance
vs.
Sutherland, 2 0.
McKee
vs.
Hamilton, 33 0.
478;
Burns
Statute of Frauds/*'
J.
had seen
S. 7;
184
vs. Parish,
Bowman
vs.
3 B.
Mon.
Blodgett, 2 Met.
&
Bat.
185
Bat.
Law
Carter
Law
(N. C.)
425;
Dev. &
Executors
3.
when
fit
to rely
called
upon the
on by the
payment
vs.
Bigelom, G.
statute
plaintiff's
of the debt,
tract
made on
a,
398.
180
to the set-off.
and
is de-
He may
When
280.
An
507
who pays
the debt of
made. " Upon
cipal
the latter
may pay
assumed takes
bility
effect
It is then
No new
nity.
be-
is liable
The
his
relation of debtor
isor
when
the prom-
of his right of
made by
set aside,
But
a cause of action against the principal does not arise until the
pay the
promise, and,
money in
principal
'
I.J.
debtor is
1-1,1
liable
for
J.I,
the
-J
I,amount as for money paid
at nis
instance and request.
The Statute
of Frauds can have no operation as
between the original debtor and his
4.
guarantor."
IHT Bigelow, 0. /..
In Eice vs.
Southgate, 16 Gray 142; Poe vs.
Dixon, 60 0. S. 124; 54 N. E. 86.
See also Martin vs. Ellerbe's Adm.,
70 Ala. 326; Harper vs. McVeigh, 82
Va. 751; 1 a. E. 103: PolhiU vs.
Brown, 84 Ga. 338; 10 S. E. 921;
Zollickoffer vs. Seth, 44 Md. 359';
entire debt
an indemnity
may
-e^-^i]^
vs.
Graf,
lOil
Wis.
217;
508
and
paid,
if the
debt
is
may
be
paid/^
it is
bling statute or express agreement, cannot arise before the maturity of the debt, although if
payment
it
is
made by
the surety
indemnity when" the debt becomes due, and action can then be
brought as
may
many of
nity
if the
whenever grounds
remedy of
attach-
ment."'
Equitable exoneration.
281.
to
It
Md.
5l6
is
567.
may
vg.
(Pa.)
is>2
299;
381.
Tillotson
Rose,
vs.
Armstrong
Met.
11
Gilchrist,
vs.
tioin
principal
fee,
person, that he
maintain
ae-
debt.
110 Mass.
3145;
Thayer
Harper
vs.
Daniels,
vs.
McVeigh,
10
vs.
Vermeiule
25 N. E.
111.
54'3
Gol-
148; Felton
vs.
Bissell,
The Code in
S2S; 22 S. W. Ii69.
Ohio provides, iSec. .5846 "A surety
may maintain an action against his
:
bound, before
<jill
it
is
is
due, whenever
and
debt,
is
it
509
first
pay any
part of the debt himself, but the principal debtor who is ultimately bound for the debt may be required to discharge his
obligation.!"*
This
is
may
maintain
paying
the debt."'
If the principal is
Rigfht of
282.
equivalent to payment.
It is
debt in
money
of indemnity.
plied contract
Whatever
is
upon
his im-
accepted by the
and
may
be
entitles the
605; 41 N. E. 1108;
84
ilton,
III.
Buffington, 42
172;
Hoppes
App.
Keach
;
Hoppes,
397; 24 N. E. 139;
Ky.217; 10
Meador
W.
111.
Ham-
Neal
41i3;
W. Va. 327
vs.
vs.
vs.
m S. E.
IZSi
Ind.
vs.
Mea-
S.
651i;
7So
440;
Mathews
Title
App. D.
C,
348.
Co.,
36
1003.
510
guarantor/^' or
tlie
is
may
is
not paid.
"'"'
principal
by the
citations to be
\yill
constitute a
medium
negotiable
except money or
it
equities
The
'
If he evades
payment on
payment
is
from insolvency
it void,
or because
cred-
itor
is
Barclay
Howe
vs.
vs. Buffalo,
37
Mitchell, 82
by making a compromise
settle-
BoatmJan,
49
Ind.
104;
Sapp
VB.
W. 24;
S. W. 41.
M. & W-
28 N.
346
Romine
Taylor
vs.
vs.
Romine, 59 Ind.
Higgins, 3 East.
169.
"jll
amount from the principal,'"'^ or remore than the actual value of the property which he
cover
The
may
nevertheless recover
the full
seems to be that
if
the creditor
may
is
extinguished.
defective,
and on the other hand scales down his bargain and measures
ing,
Amount
283.
promisor in suretyship
is entitled to full
indemnity from
may
and
call
he
is
all
ment of bis
201
Eeed
Craig,
v,
361,
' It is
liability.
It is
by virtue of that
aitua-
obligation
as between himself
an
and
Child
41 Md. 571;
63 Vt. 609; 22
Cranmer vs. McSwords, 26
Brock,
tiudale
vs.
make
the arrangement
Thomas
vs. Carter,
It is his duty
Atl. 720
Is
to
enabled to
make the
the person in
whose behalf he
is act-
ing."
Black, 74
11 S. E. 507
Cal.
409;
Waldrip
vs.
16 Pac. 226;
W. Va.
202
412.
Bonney
vs. Seely, 2
Wend. 481
512
Where an accommodation indorser paid the notes of the principal and took an assignment of them and thereafter brought
action on the notes, it was held that the indorser was entitled to
recover from the principal the expenses incurred in the matter
of the collection. ^"^
If the surety is sued he may recover the costs of litigation
from the principal.-"*' Where a joint action is brought against
the principal and surety there is additional justification for the
rule that the surety may recover costs of the principal. While
the surety has the right to pay upon demand without suit, and
recover indemnity from the principal, he is not obliged to settle
in that way, and if the principal is also sued, payment by the
surety may properly be withheld in the hope that the creditor
may be able to collect his claim by execution against the property of the principal.-"'^ But litigation must be entered into in
good faith, and upon reasonable ground, in order to charge the
principal with costs. Where the ligitation is prolonged merely
to gain an extension of time for payment, the expenses cannot
be recovered. ^"^
surety cannot in any event recover from the principal more
than he has paid for his account. It is the amount of payment
and not the amount of the debt Extinguished which fixes the
measure of recovery. "If the surety discharges the debt of
his principal in whole or in part for any sum less than the full
N. Y.
203
Thompson
vs. Taylor, 72
32.
recovered.
Wanamaker
vs.
Otis
(Pa.^
26
106;
W. Va.
Ctanmer
417.
vs.
MdSwords,
513
from his principal only the amount actuallypaid by him. The implied contract in such ease is that the
surety shall be indemnified only, and he will not be allowed to
speculate out of his principal."^"
If judgment is obtained against a surety and collected by
execution upon his property, the principal cannot be charged
It is the duty of the surety
with the costs upon the execution.
to pay the judgment, and the execution results from his own
contract, recover
neglect.^"'
for
284.
cases in
suretyship promisor.^^"
If the principal is not liable, and in consequence of the same
defects in the main contract the surety or guarantor might also
mauitain a defense, or where the statute of limitations applies
to both, a payment by the latter under such circumstances will
be deemed voluntary, ^^'^ but if the defense is not available to the
207 Mathews vs. Hall, 21 W. Va.
510; amte, See. 299, and cases there
cited.
& N.
N. E.
Williams, 23 L. J.
Ex. 322 Newcomb vs. Gibson, 127
Mass. 396; Van Petten vs. Richard9on, 68 Mo. 379; Beckley vs. Munson, 22 Conn. 299.
But see Kemp vs Finden, 12 M. &
W. 421; Van Winkle vs. Johnson, 11
Ore. 469 5 Pac. 922.
29 Vance vs. Lancaster, 3 Haywood (Tenn.) 130.
See also Hayden vs. Cabot, 17
Mass. 169.
Powell vs. Smith, 8 Johns. 250. In
this case the surety was imprisoned
for the debt of his principal and
;
it
Nat.
Bank
Company,
vs.
931
American Bonding
113 N. E.
0. S. 362;
221.
211 Hatehett vs. Pegram, 21 La.
Ann. 722 HoUinsbee vs. Eitchey, 49
;
Ind. 261.
Roe
vs. Kiser,
62 Ark. 92
34 S.
514
is
make claim
is deceased,
fails
sented,
may
the debt, he
if
recover indemnity
is
asserted
is
from the
estate.
^^^
against-
pays the judgment after the right of action by the holder against
the maker, is barred by the statute of limitations, the surety
may
It
alive
was held that where the claim against the surety was kept
by special agreement for extension, but barred against the
may
W.
534.
In this case the note of
the principal was void on account
recover indemnity."*
plaintiff
demnity.
rules
of usury,
N. H.
oj
The foundation
rities?
discharging
de-
the
surety
for
is,
that these
16
Iowa
26.
213
to
it,
at his pleasure.
He saw
fit,
This he
surety.
acts
And
if
But
and the
cipal
If
he be
still
had a right to
held that it
principal
to
do,
is
fail
to
bring
suit
....
rop, 6
bell,
21*
vs.
Camp-
Norton
515
from
the principal.^^
from
from the principal."^
held that where the debt rests upon some illegal consider-
Where the
may
recover
ation,
the surety
Where
make
is
from a want
" There
force indemnity.
in-
of capacity to
principal
is
is
no doubt of the
may
covert, etc.,
be liable
But that
rule is
when
him.
So a surety for a corporation in
where the corporation has not the power to con-
a transaction
tract,
niay be liable
ration
may
exceed
when
its
the corporation
is not.
is
And
a corpo-
no moral turpitude
as a
power; and they would not be bound while their surety would
"'
be."
285.
when he might
he
may
recover from
Ihe principal.
Gasquet
'16
Hyde
vs.
Oakey, 19 La.
vs. Miller.
76.
45 App. Div.
(N. Y.)
firmed
168
1113.
217 Harley vs. Stapleton's Adm.,
24 Mo. 248.
218 Davis vs. Board of Commissioners of Stokes Co., 72 N. C. 441.
516
exoneration, he
may
One
may
collaterally
de-
fenses does not change his attitude toward the principal debtor.
This
dorser
may
who
liability.
is entitled to
demand and
iu-
upon
The same
is also
true where the statute of limitations has run against the surely
Where a
note.^^
pal as indemnity against his suretyship, and paid the debt when
Stanley
McElrath, 86 Cal.
vs.
"Now
if
But the
difference.
de-
no
doubt, that,
makes no
there
is
name to another
for his
Whether
of the circum-
it is
so in cases in
known
unquestionably
entitled,
we
was
think
McClatchie
Mich. 435: 7 N.
vs.
W.
Durham,
76.
44
517
When judgment
286.
^^'
is
con-
If the surety
is
is
if
when sued
an action for
indemnity.^''''
make
negli-
287.
surety,^^'
is,
by the
bankrupt estate
the bankrupt.
221
May
vs.
1673; 56 S.
222
Hare
Ball, 21
W.
vs.
is
Ky. L. Rep.
Grant, 77 N. C. 203;
N. H.
Mon. (Ky.)
Prima
571.
V8. St.
facie only.
Grommes
111. 634.;
35 N. E. 820.
223lStinson vs. Brennan, 1 Cheves
'Uw
(S.
C.)
15.
224
225
7.
Doran
1 (a)
who
is
"The
liability of
a person
haus
vs.
Zimmerman,
Witt-
App. Div.
iS.
315;
Goyer Co.
518
may do
so in the
creditor's name."^^*
The
57
(i).
a bankrupt as
of
liability
and the
bankruptcy
it
if
existed
when
pro-
Hardy Buggy
Co. vs.
Paducah Bank-
ing Co.,
210
W.
S.
452.
of
1898
a means
is
The claim
principal,
surety
is
of
a surety against
his
which the
obliged to pay after the
for
debt
This case arose under the bankruptcy act of 1841 in which provision was made for proving the conThe
tingent claims of sureties.
language of the act was "iSiureties,
indorsers, bail, or other persons having uncertain or contingent demands
in,
li-
solvent,
pal.
of
Ante,
iSec.
TABLE OF CASES.
(References arc to sections.)
A
Abbott
vs.
Brown, ISl
vs.
Williams, 19 Colo.
111.
Sec. 205.
Acme Mfg.
Adam
Adams
Gomila, 37
vs.
I/a.
Ann. 479,
Sec. 208.
vs.
vs.
Hugginsi, 73
vs.
vs.
vs.
vs.
vs'.
Thompson, 68 N. H.
153.
118.
Md.
123, 129,
240.
'vs.
vs.
vs.
vs.
146.
519
520
TABLE OP CASES.
(References are to sections.)
Aitken Son
&
Alabama
Alabama Nat. Bank
to.
vs..
1,
115.
Sec. 10.
Sec. 185.
S. 245,
608',
See. 197.
U. S. Fidelity
& Guaranty
Co., 3 Cal.
App.
See. 76-a.
Alcoy Ry.
vs. Greenliill, 41
London
Ames,
Gray
Alexander
vs.
vs.
vs.
iSerg.
Stec.
131.
15 R.
I.
vs..
vs.
vs.
Mamey,
vs.
vs.
vs. Powell,
Law
vs.
Ramey, 4
VBL
ve.
99.
Strob.
67',
67.
See. 97.
(Ind.)
vsi.
vs.
vs.
vs.
262.
338,
TABUS OF
521
C.VSEP.
vs.
va.
American Bonding
&
American
American
American
American
American Tnvcstmenit Co. vsi Marquam, 62 Fed. Rep. SCO, Sec. 112.
American Iron & Steel Mfg. Co. vs. BeaH, 101 Md. 423, Sec. 86, 94.
American National Bank vs. Fidelity & Dep. Co., 58 S. E. 867, Sec. 248.
American. Radiator Co. vs. American Bonding Co., 72 Neb. 100, Sec. 23-a.
vs. Boyie,
vs. Folk,
Vt.
3i5,
Sec. 153.
vs.
VBi.
vs.
vs.
vs.
vs.
&
Trust
Co.,
98
S.
W.
Sec. 76-a.
vs. Scott, 18 Okl. 264, Sec. 76-a.
V9.
vs'.
vs.
233'.
Aniaheim Co!
vs'.
Mo. App.
Watts &
vs.
Blakely, 2
vs.
Brown, 0.
vs.
vs.
Hayman,
Meeker
H.
387,
TABLE OP CASES.
522
Anderson
Andrews
vs.
Mannon,
vs.
vs.
vs.
Soward, 40 0.
vs.
Spence, 72 Ind.
315',
v.
vs.
vs>.
Mon. (Ky.)
7 B.
Sec. 34.
VB.
vs. Varrell',
Annett
vs.
Anthony
Armstrong
Anidd
Amot
vs. GMchris.t,'
2 Johns.
Casi.
114.
vs.
Ry.
vs. Erie
Co., 67
N. Y. 316, See.
8,
10.
11.
8.
Ash
Sec.
Atlantic
Atlas
Atlas
&
15,-
812,
105.
Atwood
vs.
re,
Sec. 36.
.57.
vs. Lester,
vs.
118',
660, See.
Sec. 107.
Hefner. 67 Tex.
TO. Smith, 52
6.
O.'J,
Mo. App.
113.
523
TABLE OF CASES.
(References are to sections.)
&
Aultman
Austin
Taylor Co.
vs. Curtis, 31
Gorham,
va.
Vt.
Sec. 86.
64/,
VB.
vs.
vs.
Vrooman, 128 N. Y.
vs.
vs.
229, Sec.
92.
1168.
Avery
Ayers
vs.
vs.
vs.
vs.
Harness,
vs.
Toland, 7 Har.
11.
23',
251.
Sec. 187.
1'
&
John. (Md.)
3,
Sec. 142.
B
Baber
vsL
Babcock, In
Babcock
Babbit
Meek, 45 Iowa
Finn, 101 U. S.
vsv
179.
Baglin vs. Southern Surety Co., 41 App. D. C. 530, Sec. 236, 239.
vs. Title
Guaranty
&
Surety
Baiky
vs. Butterflel'd,
Sec
VB>.
vs.
vs.
16.
vs. Griffith,
vs.
vs.
Sweeting, 9 C. B. N. S. 843,
Whitehaven, 3 H. L. Cases, 1,
vs.
Bain
vs.
Bainbridge
Baker
vs.
vs.
vs.
Wade, 16
28.
Sfec.
47.
Bryan, 64
Ktec.
US:
131.
vs. Belvin,
vs.
vs.
vs.
Peterson, 300
vs.
Robinson, 63 N. C. 191,
vs.
111.
8,
10.
524
TABLE OP CASES.
(References are to sectiens.)
Baker
vs.
vs.
59-.
23-a,
123.
109-,
vs.
BaU
40.
Ballantine vs.
Bank
vb'.
Anderson,
vs.
Jackson, 3
vs.
V'onderwerker, 19
vs.
Walker, 45 0.
Atl'.
65'
vs. Booze, 75
VB.
&
N. H.
vs'.
Haskelli, 91
vs.
Haug, 82 Mich.
vs. Patterson, 78
Ky.
513.,
Sec. 101.
vs.
vs.
Fla..
vs. iSSmpson,
vs.
Bank
Bank
Bank
Bank
Bank
Bank
Bank
Whitman, 66
111.
of Australasia vs.
of Biddeford vs.
Reynell,- 10
New
McKenney, 67 Me.
Union Packing
Limestone
8,
Co.,
Stec.
Sec. 16.
60 Wash. 456,
Bank, 13 N. Y. 312,
vs. Penick, 2 T. B.
of Missouri vs.
Zealand, L. R. 257,
272, Sec. 92.
iSec.
Mon. (Ky.)
90.
Stec.
66.
148.
108.
TABLE OE CASES.
525
Bank
Bamk
Bank
Bank
of
Monroe
of
New
vs. Gifford, 79
Zealand
Iowa
300.,
Wilson, 5 N. Z. L. R.
vs'.
1^9?.
Tarboro
ot
288',
&
Fidelity
vs.
Deposit
Co.,
Md.
02
W.
Co.,
8.
Barker
Bamea
&
St. L.
Ky.
vs..
C. P.
vs.
Parker,
vs.
vs.
Barnard
Dum. &
vs.
vs.
vs.
vs.
vs.
Mowry, 129
vs.
vs.
va
5-96:,
115'.
Sec. 116.
Barnett
vs.
vs.
Thompson, 66 Iowa
Bartholomew
vs'.
Ky.
(Goto.)
W Nev.
Firsit
Earth
vs.
Graf,
lO'l
Wisi
Barry
23?*,
240.
405.,
Sec. 130.
Bashford
vs.
See. 233.
526
TABLE OF CASKS.
^References are to sections.)
Baskin
Basliiaim
Bash
Howald, 27 Okl.
vs.
vs.
119 N. Y.
Sec. 42.
Bay
Beard
vs.
Converse, 84
vs.
Union
111.
Ct.
148'.
vs.
Beakley
Bean
Sec. 282.
101.
Cunningham,
vs.
1165 S.
W.
vs.
vs. Valile,
Beaman
vs. Russe-liL,
31.
New
Bealli vs.
Walker, 26
vs.
vs.
Ifi7,
Sec. 281.
Becker
vs.
Keokuk Watea:
vs.
Krank, 77 N. Y.
vs. People,
Beckham
Bockley
vs'.
vs.
Beckwith
Worlcs, 79
See. 176.
3118,
Ta,.
419,
Sec
vs. Talfbot, 95
U. S.
280',
Sec. 29.
vs.
Becovitz vs.
215.
Bechervaisc vs. Lewis^ L. R., 7 C. P. 372, Sec. 268.
131.
79, 93i
tabijE op cases.
fReferences are to sections.)
vs. Kelley, 173
Bsdford
l>,
83.
Belden
v.
vs.
vs.
People, 94
VB'.
III.
Bellevue Loiain
&
Hl'dg.
Bemis
Bent
vs.
vs.
Bent, 43 Vt.
vs.
Benton
vs. Fletcher, 31
vs. Gibson,
42i,
Vt.
V Hill
4'18i
Law
Sec. 63.
(S. C.)
vsi.
197.
Sec. 209.
Benton County Sav. Bank vs. Boddicker, 117 Iowa 407, Sec. 23-a, 106.
Benge's
Bennett
115.
vs.
vs.
Draper, 139 N. Y.
vs.
260-,
2161.
Sec. 50.
vs.
vs.
Whitney, 94 N. Y.
Benjamin
Benham
vs.
vs.
Benedict vs.
Benne
vs.
3l98i,
Sec. 181.
Berryman
vs.
Berry
vs.
iSlec.
Sec. 75.
82, 83.
527
TABLE OF
528
C.VSES.
Iowa
Bergen
VB'.
6, Sec. 2G3.
Kv.
Bethune
vs. Dozier, 10
11, 182.
Bick
Long,
vs.
15'
Wash.
Biddinger
15.
vs. Stilphen,
Bigony
vs.
Bill vs.
Bament,
& W.
M.
M.
3i6,
Sec. 28.
Billingslea vs.
Binford
vs.
Bingham
vs.
.331,
.50,
Mo.
59
Sec. 40, 4.
51.
Bivins vs.
He.lsJley,
307',
See. 248.
Black
vs. Albery, 89 0.
vs. Kaiser, 91
vs.
Si.
240,
Ky. 422,
Stec.
.Stec.
52.
224.
vs.
Wash.
76-a, 76-b.
66.
471,
Sec.
529
TABLE OP CASES.
(References are to sections.;
Downey, 51 Mo.
vs.
ve.
Blanvelt vs.
Trustee
Bl'akely's
Xa.t.
vs.
111.
434, Sec.
8.
vs.
vs.
Reading, 103
vs.
Blair vs.
Bknkman
111,
Mo.
Blum, 33
III.
vs. Searles, 63
N.
J.
182.
Thompson, 33
U. S. Fidelity
&
Guar.
Co.,
155
Mo. App.
Sec. 17.
VB. Ehlers, 45
vs. Pabsit,
Boardraan
Boaz
vs.
vs. Milliken,
92.
Boehne
vs.
Murphy, 46 Mo.
V4S<.
109;
530
TABLE OF CASES.
(References are to sections.)
Bohannon
vs.
BoMes
App.
Bolitz's
Bond
vs.
vs.
Bone vs.
Bonney vs.
Booth
Seely, 2
Wend.
6S.
vs. Irving
vs.
6il,
67, &.
174.
Boom
Bosman
vs.
Bowman
vs. DIodgett, 2
Brooks, 34 Beav.
vs.
7,
K Ky.
Sec. 279.
vs. O'Neill,
167.
60.
TABLE OF CASES.
531
Bardley vs. Burwell, 3 Denio (N. Y.) 61, Sec. 282^ 275.
vs. Fisher,
1 Wallace
335',
Sec. ICS.
vs.
Maim,
vs.
37 Mich.
1,
Sec. 74.
Braddock
vs.
Bragg
vs.
vs.
23'
Minn,.
Bradbume
Brayton
Sec. 63.
485,,
&
2ilO,
35,,
16.
Sec. 133.
vs. Botfield, 14
vs.
143.
vs'.
Breokett vs.
Addyman,
Breen
vs. Kelley,
9 Q.
Md.
Stec.
86.
Brennan
vs.
vs.
va.
vs.
vs.
vs.
9,
Sec. 9.
10.
66.
TABLE OF CASES.
532
Breitung
va.
Brigham
va.
va.
vs. Eouae,
vs. Eussell,
vs. Shelby,
vs.
Weaver, 76 Miss.
7,
iSec.
164,
170.
307,
Stec.
98.
Brownell
Bromberg
vs.
va. Fidelity
5o.
50.
TABLE OF CASES.
533
M.
Broome
Broad
The
vs.
WO,
Paris, 66 Tex.
vs.
Unit-ed States, 15
How.
Sec.
154.
vs.
11.
vs.
Bickerton, 18
vs.
U.
Brumby
S.,
17
W. Va.
How.
Bruniback vs.
Bryan
vs.
vs. CattelT,
15
Ila.
Bucki
&
Sec. 208.
vs.
Buffalo
Meisser, 105
Cement
Co. vs.
111.
McNaughton, 90 Hun
Bugbee
Euhrer
Gal'.
Hun
vs. Kendricken.,
vs.
Building Assn.
vs..
Cummings, 45 0.
Bulmer
vs.
Bunneman
Bunting
Bunn
Jenkins, 3
vs.
vs. Gad'es, 77
vs. Jetmo.re,
vs.
Bunker
How.
Pr.
Wagner, 16 Ore.
H,
Sec. 210.
vs.
Osbom,
TABLE OF CASES.
534
17.
vs.
Burgoyne
Burke vs.
Ciruger,
vs. Lee, 59
Ga.
Tex.
1'66,
66,
S. 586:, gee.
68-,
Sec. 86.
Sec. 247.
Burtan
vs.
42',
Sec. 137.
Burnet vs. Courts, 5 Har. & John. (Md.) 78, Sec. 140.
Burnett vs. Millsa/psi 59 Miss. 333, Sec. 263, 267.
vs'. Stark, 136 N. W. 670, Sec. 197.
vs. State, 18 Tex. App. 288, Sec. 229.
Bums vs. Fidelity & Deposit Co., 96 Mo. App. 467, Seo.
vs. Folansibe, 20 III. App. 41, Sec. 143.
7'6-a.
Bushnell
vs.
vs.
Bustemente
vs. Stewart,
111.
55 Cal. 115,
iStec.
197.
iSec.
54, 78.
c
Shepard, 12 Wis. 639, iStec. 10.
Cady
Cadwell vs. Colgate, 7 Barb. 253, Sec. 199.
vs.
vs. Jans,
Mont. 570,
Sec.
215.
Cahuzac
vs.
119.
TABLE OF CASES.
535
vs. State,
vs. V'ogt,
Dock
Calvo vs.
Da vies,
Calloway
vs.
Sec. ISO.
199',
Co., 2
76-lj, 79.
Calhoun
Hannan, 87 Ala.
vs.
vs. Littaie,
1-68.
Bank
California Savings
Camp
Bostwick, 20 O.
vs.
vs.
Man.
vs.
&
Sec.
10.
8,
Co.,
61
67.
vs.
Humph.
vs.
Findley, 3
vs.
vs.
Johnson, 41 0.
vs. People,
vs.
vs.
154 HI.
596-,
Sec.
KK
Camden
vs.
Doremus', 3
V.S.
McKoy, 4
How.
llil;.
437, Sec.
10.
CanfieH
73, 79.
Sec. 23il.
VS'.
vs.
li Colo.
14,
Sec.
Capeihart vs.
Mhoon,
5 Jones'
Eq. (N.
213.
C.)
&
Capen
2'1'5.
vs.
Davis, 64
vs.
Meade, 77
vs.
Vn,.
1.12,
Sec.
S.
W. Va.
3<).
IfiH.
vs.
HI.
176.
W.
536
TABLE OP CASES.
(References are to sections.)
&
ys. Mulrein,
&
Bait.
Law
(If. C.)
8-2
vs.
vs. Tioe,
120
Il'l.
Young, 77 Tenn.
vs.
210, Sec.
2:i6'.
Carpenter
vs. Broost,
vs.
Bowen, 42 Miss.
69.
vs.
vs.
vs.
vs.
Oaks, 10 Rich. L.
vs. Turrelil,
202'.
McGee, 2&
vs.
IST.
Oardell vs.
Carver
TilcNieli,
vs. Partridge,
Carrawlay
vs.
Walace,
VI Sou. Rep.
Case
vs.
Howard,
41
Iowa
TABLE OP CASES.
(References are to
587
sections.)
Cauthorn
vs.
al., vs.
The People, 95
vs.
111.
Magee, 2 Paige
179.
Cellers vs.
Central
Co.,
80
3.
E. 121,
Sec. 219.
Chaddock
Bank
Vanness, 35 N. J. L. 517,
vs.
U.
vs.
Chambers
111.
vs.
vs.
19 Pick.
iSec.
66.
10.
iStec.
&
vs. Ingalls,
vs.
2.
Oal'.
vs.
Jones, ri5 N.
vs.
9il
Hoxsey, 41 N.
Rutherford,
vs. State, 1
111.
I'Ol
602,
Sec. 249,
251.
Lea (Tenn.)
Godfrey,
Haskins',
3i6
Iowa
115',
]i64'.
Sec.
Sec. 164.
vs.
Cliarles
vs..
Broderick, 131
N".
206-.
Chemical'
Bank
vs'.
1.64,
See. 263.
TABLE OF CASES.
538
Childers vs. Talbott, 16 Pac. Rep. (N. M.) 275, Sec. 28.
Chickasaw Co.
vs. Pitcher, 36
Iowa
Chipman
vs.
W.
Chjpstead
vs. Porter,
vs'.
Christian
& Gunn
vs.
N. Y.
Church
m.
vs.
Noble, 24
2i85i
291(,
Sec. 206.
Citizens
Bank
vs.
Douglass, IBl S.
vsi.
EUliott, 9
W.
vs.
539
TABLE OP CASES.
(References are to sections.)
Md.
vs.
vs.
vs.
vs. Jones',
85
Alia.
Sec. 41.
127,
vs.
vs.
Mallory,
vs.
MiMer, 54
vs.
vs.
Remington,
N".
Ili5.
vs.
vs.
vs.
11
vs. Wilsttn,
2 Ad.
vs. Piggott,,
Classon
vs>.
Claflin VB.
BiMman,
&
GM. &
."1.
Clay
Freeman, 74 Miss.
vs.
Sec. 255.
816',
Lumber Co.
Clerk
vs..
vs.
Raym.
Withers, 2 Ld.
ainton Bank
vs.
Cl'ough
Clow
VS-.
vs.
Seay, 49
6.1
Sneed
Wend
23S, Sec.
9 N. Y.
98.
7'4.
17.
vs.
Page, 17 Bai
469i,
9.
vs.
vs.
135'.
Sec. 99.
vs. Pafcridge,
Coburn
See.
Sec. 74
Coan
Cobb
2'51,
Iowa IW,
vs. Kinesi,
445(,
Sec. 57.
Cochrum
Cochran
vs.
V9.
vs.
372,
Sec. 244.
vs. Peopte's
613',
Sec. 42.
540
TABLE OF CASES.
(References are to sections.)
Cochrane
Codman
Coe
Cushing,
vs.
12i4
100.
vs.
vs.
Vt.
&
C. R. Co.,
Blatchf.
Sec. 51.
165.,
vs.
vs.
vs.
Sec. ^45^
Cogburn
Coggeshall
Cohea
Cohen
vs. Rugglies, 62
111-.
Makomb,
vs.
vs.
vs.
Cdlgrove
Md.
vs. Talltoan, 67 N.
Y.
95.,
Park
I.
(Ky.)
116.
278,
Stec.
1S2.
Elec. Belt Line vs. Ide, 15. Tex. Civ. App. 273, Sec. 57.
vs.
Huffman, 48 Wash.
Mayor, 3 Hun 680,
Barn.
vs. Prosser,
vs. Skillen,
16 0. S.
&
145.
382, Sec.
156.
Colby
vs.
111.
540,
Stec.
Stec.
Stec.
196, 197.
229.
195.
Columbia Amusement Co. vs. Pine Beach Inv. Co., 109 Va. 325,
Columbia Avenue Trust Co. vs King, 27 Pa. 308, Stec. 23a.
Columbia Co. vs. Massie, 31 Oreg. 292, See. 154.
Columbia, etc., R. R. Co. vs. Braillard, 12 Wash. 22, Sec. 183.
Columbus, Hocking Valley & Toledo Ry. Co. vs. Burke, 54 0. S. 98,
Columbus Stewer Pipe Co. vs. Ganser, 58 Mich. 385, Sec. 50.
Comey vs. United Surety Co., 217 N. Y. 268, Stec. 233.
Commercial Bank vs. Henninger, 105 Pa. 496, Stec. 101.
vs.
Stec.
195.
Stec.
193.
51.
703,
Stec.
93.
TABLE OP CASES.
(References are to
Ck)mmonwealth
Ky.
Amer. Bonding
vs. Allen,
vs.
157
vs. BrasBfield, 7
&
VB. 'Ches.
vs.
vs.
&
Tr. Co.,
]i6
Mon. (Ky.)
Ohio Oanial
Co., 32
447, Sec.
Md.
vs. DUl',
vs.
sections.*)
Sec. 232.
6,
B.
541
174.
Sec.
153.
vs. Fidelity
v.
vs.
vs.
vs. Holdnes,
vs. Julius,
vs.
vs.
vs.
vs.
vs.
vs.
160.
161.
Comstock
vs.
vs.
Toms, 45 Pa.
vs.
Gage, 91
III.
408, See.
32S, Sec.
37.'!.
Ifi4.
1S2.
S<'c.
i:^.
Concrete Steel Co. vs. Illinois Surety Co., 163 Wis. 41, Sec. 131.
Conger
Conn
vs.
Babbet, 67
vs. 'State,
Conaway
vs.
Iowa
10.
13, Stec.
Slweeney, 24
W.
Mutual Life
176,
Sec.
53.
106, 127.
&
vs.
vs.
vs.
vs.
L. R. Ch. Div. 37
C. Nat.
Conwell vs.
Cook
111.
Voohees, 13 0. 523,
iSec.
115.
170.
vs.
vs.
8.
197.
542
tabm; of cases.
(References arc to sections.)
Cooke
vs.
Coope
vs.
re,
Cooper
vs.
vs.
2fi3.
Cooper, In
Sec.
Coon
vs.
106,
127.
McCormack, 69 Iowa
Coons vs.
Coonradt
vs.
Campbell, 29
Co-operative Assn.
Tva.^.
Steo.
186.
vs. Dixie
&
Lumber
&
Russ.
Cli.
Brantley vs.
5 Rich.
vs. Holly.
Sec. 188.
3(11,
vs. Roiii;
Copeland
Copejand
CornwelT
639,
Co.,
121, 194.
533.,
See. 111.
Covey
Coverdale
Cowles
vs.
vs. Peck, 56
16, 62.
66,
TABLE OP CASES.
543
Oowan
Vs.
Baird, 77 N. C. 201,
vs.
vs. Telford,
Lea
111.
iSec.
(Tenii.)
109.
iSee.
66,
449,
Stec.
255.
vs.
vs'.
vs.
vs.
Mobile
Co.,
.37
10
vs. Phipps-, 23
N. y. 16a, Sec.
63.
SL
265, Sec.
Damp,
vs.
vs. Pacific
Colto.
Heat
& Power
Co., 36
Wash.
vs.
vs.
vs.
Cramer
-50.
Cragoe
vs'.
vs.
vs.
Richeeon, 101
vs.
vs. Sterling. 4
III'.
Sec. 170.
Sec. 23a.
351,
Sec. 26T.
I'l.
Turnbaugh, Trustee, 86 0. S.
Crawn vs. Commonwealth, 84 Va. 282, Sec.
Craythorne vs. Swinburne, 14 Ves. .Ir. 164,
V9.
Cremer
vs.
Higginson,
CreswelTi vs.
vs.
Mason
&
J.
vs.
vs.
Crist vs.
99.
TABLE OP CASES.
&'*4-
Crosby
vs.
Bonchard,
vs.
Woodberry,
82i
.37
Sec. 99.
1,
Crow, 53 Ky.
Crook
vs. People,
106
111.
237, Sec.
J.
142.
145'.
vs.
Stoddard,
vs.
97'
AVrenn, 23
111.
67.
1135.
vs. Smial'Iman, 14
vs. Tyler, 9
Curtiss vs.
Bachman, 110
62.
C.
& W.
214.
(i1)
III.
920,
545
TABLE OF CASES.
(References are
to sections.)
D
DaggHt
VB.
Mensch, 141
111.
Wall
Daly
vs.
vs. Old,
1,
vs.
16, 57.
Conant, 30 Vt.
104,
106.
2'46, Sec.
63.
Dane
vs.
Corduan, 24 Cal.
Ii57,
Sec. 115.
Dana
57, 127.
Daniel Co. vs. Dickey, & Ga. App. 548, Sec. 38.
Daniels, et
al.,
Danker
vs.
vs.
Darby
vs.
Daum
vs.
IS, 138.
64.3,
See. 11.
vs.
Buckles, 89
vs.
111.
237, Sec.
Co.,
108.
vs.
CommiBsioners, 72 N. C.
vs.
44i',
Sec. 104.
vs. GiMett,
vs.
vs.
vs.
People, 1 Gilm.
I'll'.
vs. Shafer,
vs.
vs. Sbatts,
12.2.
Wash.
vs.
vs.
London
vs. Fuiniston,
&
16, 57l
546
TABLE OF CASES.
(References are
Dawe
Dawson
1,
Sec.
_,
1'52.
vs. Ctoe,
vs.
vs.
McPhee, 41
vs.
Ramey, 40
Dayton
Deal
State, 3 0. S.
vs.'
Day
Ky.
vs. Lee, 83
to sections.)
vs.
Col'.
4'67,
Sec.
I'ST.
Sedan Milling
vs.
vs.
Dean &
Dearborn
vs.
& Manhood,
30.
vs.
vs.
&
Den Bleyker,
Lodge Co.
vs. At., 3
vs.
Mont.
U. S. Fid.
149..
268'.
&
Guajr. Co.,
42 Momt.
S'lS,
316,
DeGreiff
& W.
Delaware, L.
Demeritt
Demott
vs. Bickford, 58
vs.
FieM,
Cow.
vs. Stockton, 32
Dempsey
vs.
Bush, 1& 0.
N. H. 523, Sec.
5, Sec.
N.
J.
34.
ia9.
Denny
vs.
547
TABLE OF CASES.
(References are
sections.)
to
Bank
111.
vs.
Dewey
iStec.
132.
188.
vs.
vs.
vs.
vs.
Dey
76.
63.
45.
iSec.
vs.
Derrickaon, 39
vs.
iSi.
Sec.
574,
111.
fifec.
67.
81.
W.
Dilley vs.
Siec. '248.
Dinsmore
vs.
District of
Slachs,
Columbia
vs.
District of
Dix
vs.
vs.
Taylor
Morris,
Dixoii vs.
Doane
DobeOli vs.
vs.
79.
81, 8S.
168.
1,
48.
Donley
vs.
Camp,
22-
J.
Lea
548
TABLE OP CASES.
(References are to sections.)
Donnell
Dorman
Sec.
119.
Dorsey
vs. Fidelity
Dorwin
vs.
&
Casualty
Smith, 36 Vt.
Ga.
Co., 98
456i,
Sec. 239.
Dougherty
Doughty
vs. Dore,
vs. Kessler,
vBi.
VB.
60,
65,
68, 99.
Downer
vs.
Chesebrough, 36 Conn.
vs.
Drake
vs.
Nesting, 37 Col.
5'22.,
St*. 61.
Draughan
Wood,
vs.
C.)
10, Sec.
,^4,
74.
W.
"V'a.
vs.
HoH
N. P.
Sec. 109.
Sec. 98.
399i,
See. 88.
22.
TABLE OF CASES.
549
Dunlap
Ind.
307',
Sec.
.2177.
vs.
ye>.
vs.
WiUett, 153 N. C.
3117,
Sec. 23.
Dupee
vs. Storey,
1,
Sec. 244.
Durbin
Kuney,
vs.
4851,
Sec. 231.
Dye
vs.
Dyer
vs.
Dye, 31 0.
Gibsom,
vs^.
S.
8<3',
Sec. 95.
E
Earle vs. Earle,
4l9
N. Y. Super. Ct.
East Bridgewater Sav. Bank vs. Bates, 191 Mass. 110, Sec. 68.
Easter vs. WMte, 12 0. S. 2'li9, Sec. 34.
Easterly vs. Barber, 66 N. Y. 433, Sec. 278.
Eastern Eailroad Co. vs. Laring, 138 Mass. 381, Sec. 183,
Eastman
vs. Curtis,
vs. Foster,
Eastwood
Eaton vs.
vs.
vs.
Kenyon,
141',
31.
Sec. 58.
Eddy
vs.
vs.
vs.
96.
vs'.
Edmunds
Edwards
vs.
vs'.
vs'.
vs.
vs.
vs.
6.37,
See. 117.
81,
94i.
TABLE OF CASES.
550,
Edwards Co.
Egbert
80 0.
vs. Goldstein,
15'3,
8,
I'O.
Sec. 58.
AppKance
Electric
Co. vs.
TJ.
S. Fidelity
&
WU.
434, See.
Elizalde vs.
Elkin
Murphy, 163
vs. People,
Illl.
Md.
6<).
23'.
Mo.
Ellsworth
Harmon,
Mass.
101
111.
29',
Sec. 45.
Ellwell vs. Seattle Scandinavian Fish Co., 2 Alaska 617, Sec. 202.
EKrod
Emery
Sec. 66.
V8'.
Engler vs. People's Fire Ins. Co., 46 Md. 322, Sec. 123, 130.
English vs. Darley, 2 Bos. & Piil. 61, Sec. 100.
vs. Landon, 181 m. 614, Sec. 83.
vs. Siebert, 49 Mo. App. 508', Sec. 114.
Ennis vs. Waller, 3 Black. (Ind.) 472. Sec. 22.
EnoB vsi. Anders'on, 40 Colo. 395, Sec. 31.
Enright vs. Falvey, L. R. 4 Ir. 307, See. 107.
Ensley vs. HoUingsworth, 170 Alt. 396, Sec. 45'.
Enterprise Hotel Cto. vd. Book, 48 Oreg. 58, Sec. 76a.
Epenbaugh vs. Gooch, 15. Ky. L. Rep. 576, See. 196.
Equitable Surety Co. vs. Hazen, 121 Ark. 630, Sec. 76a.
vs. U. S'., 234 U. IS. 44S, Stec. 131.
Erfurth vs. iStevenaon, 71 Ark. 199, Sec. 76a.
Erie Co. Sav. Bank vs. Coit, 104 N. Y. 532, Sec. 57.
Ernst Bros. vs. Hogue, 86 Ala. 502, (Stec. 213.
TABLE OF CASES.
551
Erwin
vs.
Downs, 15 N. Y. 575,
EsMeman
vs.
Estate of
Ramsey
Sec.
104.
Whitbeck,
1!83 111.
550,
Stec.
16, 138.
Eureka iStone Co. vs. First Christian Church, 86 Ark. 212, Sec. 76b,
Evans vs. Bell, 45 Tex. 553, Sec. 62.
vs. Brembridge, 8 DeG. M. & G. 100, Sec. 111.
vs.
Comm,
vs.
vs.
vs.
vs.
VS'.
vs.
398, See.
177.
vs.
vs.
vs.
vs.
Evansville Nat.
Bank
vs>.
Kaufman,
Everson
Ewan
Watts (Pa.)
vs.
Evarta
N. Y. 290, See.
91.
Exchange Bank
McMillan,
7fi
Ex Parte Banks,
185 Ala.
27'5.,
Sec. 46.
Harris, oE Ala.
87-,
Sec.
]i02,
114.
1*48.
&
vs. Hollier,
Ezzard
vs. Bell,
73.
F
Fahnestock vs. Gilham, 77 111. 637, Sec. 211.
Fahnestock's Appeal, 1'04 Pa. 46, Sec. 166.
Fain vs. Turner, 96 Ky. 634, Sec. 42.
Fair vs. Pengelly, 34 Up. Can. (Q. B.) 611, See. 82.
Faires vs. Cockerell, 88 Tex. 428,
vs.
IStec.
Sfec.
36.
276.
82.
552
TABLE OP CASES.
f
(References are
Fail-child vs.
to sections.)
vs.
vs.
Northeastern
Mutt
16.
Life Assn.,
5'1
Fales
McDonald, 32 K.
vs.
Fanibro
Bank
400, Sec.
I.
W.
S.
275'.
Bank
vs.
vs.
Hunt, 1124 N. C.
Raynolds, 13 0.
vs.
vs. Teeters,
Sec. 99.
85,
&
22, Sec.
vs.
Farmington
90.
22..
vs. Stanley,
Farrar
vs.
Farrow
Farwell
vs.
Smith, 12 Pick.
4551,
Law
Sec. 203.
Fearons
vs.
iS.
248
TABLE OP CASES.
553
Ferrer vs.
Fessenden
vs.
Fefcrow vs.
Wiseman, 40 Ind.
8,
10.
'
vs. Butler,
&
vs.
Colvin
vs.
Commonwealth,
vs.
Robertson,
vs. Singer,
I'SO
Fidelity
& Guaranty
Co. vs.
W.
Wetem Bank,
363i,
Sec. 116.
98.
Ifill,
*c. 238.
First Mass. Turnpike Co. vs. Feld, 3 Mass. 201, Sec. 141.
First M. E. Church vs. laenberg, 246 Pa. St. 221, Sec. 131.
First Nat. Bank vs. Babcock, 94 Cal. 96, .Slec. 67.
vs. Carpenter, 41 Iowa 518, Sec. 65.
vs. Chalmers, 144 N. Y. 432, Stec. 43.
vs. Cheney, 114 Ala. 536, iSec. 90.
vs. Fidelity & Dep. Co., 145 Ala. 335, See. 76b.
vs. Finck, 100 Wis. 446, Stec. 23.
554
TABLE OF CASES.
(References are to sections.)
Bank
First Nat.
vs. Fiske,
vs.
vs.
HomeBly, 99 N. C. 531,
VB.
vs.
vs. Kittle, 69
W. Va.
112.
iSeo.
iSlec.
vs.
N.
Marshall, 73 Me.
vs.
vs.
vs. Lineberger, 86
vs. Powell,
149 S.
115.
W.
10.
15-.
8.
1096.,
vs.
vs.
vs. Schreiner,
Utah
Taylor, 3S
vs'.
516, Sec.
15.
vs. Wlheeler, 12
111.
8.61,
Sec.
115..
Fishback
vs:
Weaver, 34 Ark.
Fishbum
vs'.
& Loan
Spillman, 85 Kan.
vs.
552',
Mo. App.
Assn., 59
Sec. 90.
Fisk & Co. vs. Eickel, 108 Iowa 370, Sec. 48.
Fitcher vs. Griffiths, 103 N. E. 471, Sec. 251.
Fitzgerald vs. Staples, 88
111.
Admr.
Fitzpatrick's
Ky.
79'
52'4,
L.
J.
Sec.
6,
Sec. 36.
188.
vs. Hill,
Flainnagan
vs'.
Cleveland, 44 Neb.
Flentham
Odum, 59 Ga.
111.
58',
vs.
190.
67.
Menken, 37 Ark.
Floumoy
vs. JefFersonyille,
Floyd
Anderson,
vs.
5-
1169.
Foerderer
vs'.
98.
Fogg
Folsom
Folz
vs. Carli, 5
VS'.
vs..
TABLE OP CASES.
555
Foo Long
131.
vs. Clark,
vs.
vs.
vs.
vs.
Commonwealth, 36 Pa.
Davis, 46 Mo. 268, Sec.
170.
vs.
94.
Frahm
Frank
vs.
vs;
132.
Franklin
Bank
vs. Cooper, 36
vs. Stevens-,
Fransioli vs.
Me.
Thompson, 55 Wash.
259',
15, 106.
Sec. 76a.
Fray
vs.
Blackburn, 3 Best
Freaner
vs. Yingling,
.37
&
& Sm.
Md.
Freeman
vs.
Frelinghuysen
vs.
23a..
536
TABLE OF CASES.
(References are to sections.)
Fiiberg
Friedman
Friend
vs.
vs.
Smith Gin
FrieDdly vs.
vs.
Frink
vs.
vs.
Gray
vs. Sturges,
Lumber
Fullerton
4 0.
Furness
vs.
Gadsden
vs.
iStec.
8.
6
Brown, Speer's Eq.
('S.
C.)
Gallager
vs. Bruniel,
Cowen
Gans
Gard
vs.
vs. Cartfer
& Aiken,
77 Md.
1,
Sec.
13.
vs.
vs.
iStec.
TABLE OF
C^iSE8.
557
v.
vs.
Garnett
vs.
vs.
Gatchell v. Morse, SI
152.
VS'.
vs.
Gerard vs.
Gerber
vs'.
Acldey,
vs.
VB.
German
German
German
German
.32
Wis.
Bank
233',
Sec. 164.
Amei-. Sav.
American Bank
VS'.
vs. Fritz,
vs.
Gibbens
&
J.
(Md.)
vs.
Shehan, 5 App. D.
1-10.
1253.
TABLE OF CASES.
558
Gieseke
Johnson, 115
vsi.
liid.
Giles vs:
Gilkey
vs.
N".
vs.
Gilmore
vs.
213',
Glasgow
27.
W.
vs. State, 41
111.
Kan.
448',
Sec.
8,
10,
2132.
Gleason
Glencoe
Glenn
vs. People,
vs'.
Globe
Bank
Godfrey
Godwin
Rice, 59
Goetz
Me.
vs.
35'
205'.
3'1.
Goflf vs.
Goodbar
Goodling
vs'.
Goodwyn
vs.
Sec. 1S8.
82.
15'1
Mass. 460,
TABLE OF CASES.
559
Gosman
Cmger, B9 N. Y.
vs.
Gosserand
vs.
75',
Gould
Robson, 8 East.
vs.
vs. Steyer,
Goux
Barb.
vs. Chxiteau, 1
vs'.
vs.
vs.
vs.
App.
601, Sec.
144.
Sec. 96.
vs.
Governor
Mo.
"iiS.
Sec. 223.
31'
175.
vs. Pearce, 31
111.
Graeff's
Graff
570',
111.
Sec. 51.
li&3.
&
Mo.
Cummi'ngs, 99 U.
Grafton
vs.
Graham
vs.
Bradley, 5
vs.
vs.
S. 100, Sec.
Humph.
29-.
3-19,
Sec. 68.
vs.
vs.
State, 66 Ind.
vs. Rlngo., 67
.380,
Sec. 14C.
Grant
2'17,
Graves, et
Gray
vs.
vs.
vs.
vs.
Sec.
16',
vs.
vs.
State, 43 Ala.
vs.
vs.
127.
4,
193.
Sec. 231.
08, Sec.
19.
76.
560
TABUE OP CASES.
(References are to sections.)
Green
vs.
vs.
vs.
vs.
vs.
vs.
vs.
Gray
vs. O'Brian,
Grey
13 N. J. L. II,
Sec. 66.
184.
Slec.
Grider
vs.
111.
Ann.
Levee Comrs., 71
Long, 131
W.
Rembert, 2 Rich.
First Nat. Bank,
vs.
vs.
vs.
GriflSs vs.
15
139.
iStec.
N. S.
(S. C.)
79 N. E. 230,
Hun
344,
iStec.
410,
iSec.
<See.
51.
255.
99.
Grisard
Grocers
Bank
vs.
Kingman, 16 Gray
473,
'Stec.
80,
Sec.
132.
Groendyke
Grove
Johnstone, L. R., 24
vs.
vs.
vs.
Van Duyn,
44
N".
J.
352,
Ir.
!L.
654,
iSteo.
iStee.
Grubbs
vs.
104.
168.
109.
561
TABLE OF CASES.
(References are to sections.)
Meighan, 7
Guarantee Co. of N. A.
Grundy
vs.
Ir. L.
vs.
S.
Guaranty Co. vs. Pressed Brick Co., 191 U. S. 416, 'Sec. 18, 76a, 81, 233, 238.
Guardiam Fire Assurance Co. vs. Thompsoji, 68 Cal. 208, Sec. 19.
Guardian Tnist Co. vs. Peabody, 107 N. Y. S. SIS, Sec. 50.
Guckenheimer & Bros. Co. vs. Kann. 89 Atl. 807, Sec. 275.
Gudtner vs. Kilpatrick, 14 Neb. 347, Sec. 190.
Guggenheim vs. Rosenfeld, 68 Tenn. 533, Sec. 44.
Guild vs. Butler, 127 Mass. 386, Sec. 90, 98, 100.
Conrad, L. R. 1894, 2 Q. B. Div. 885, Sec. 266.
vs.
Gunn
vs.
Thomas, 54 Ala.
vs.
Gunnis
vs. Cluff,
17.
vs.
Gumz
111'
Geigling,
VB.
(La.)
Iowa
Gustine
vs..
Guthrie
vB'.
vs.
Gwynue
vs. Burnell,
CI.
&
H
Haberer vs. Hansen, 148 111. App. 83, iStec. 185.
Hacker vs. Johnson, 66 Me. 21, Sec. 215.
Hacker's Appeal, 121 Pa. 192, iStec. 122.
Hackett vs. First Nat. Bank, 114 Ky. 193, Sec. 74.
Haddock, Blanchard & Co. vs. Haddock, 192 N. Y. 499,
Haden
Hager
vs.
Catlin, 18
vs.
Hagerthy
Hagey
vs. Hill,
Hagler
Hun
vs. Phillips,
vs.
Hahn
vs.
Haigh
vs.
448,
Sec.
Stec.
Stec. 8.
116.
147.
75 Pa. 108,
State, 31 Neb.
iStec.
92.
Auburn
Hall vs. Equitable Surety Co., 126 Ark. 535, Sec. 32.
vs. First
vs.
Stec.
85.
Humph.
vs.
Hall, 10
V8.
Hoxie, 84
vs.
111.
16,
(Tenn.)
iStec.
352,
Stec.
280.
98.
vs. Presnell,
vs.
H.
&
S.
63,
Sec. 233.
562
TABLE OP CASES.
(References are to sections.)
Weaver, 34 Fed.
vs.
Wisconsin, 103 U. S.
Admx.
104,
Sec.
6.
5, Sec. 145.
vs.
106.
vs.
vs.
vs'.
vs. State,
312-
Md.
348, Sec.
84.
194.
vs.
Hammond
Hampe
Sec. C6.
ys-
Hampton
106.
vs.
vs.
Phipps, lOS
TJ.
Hand
Handley
Handy
Haney
96.
Burrton Land
vs.
Co., 59
People, 12 Colo.
vs.
345',
Kan.
Sec.
vs.
Hannibal
172.
Co., 23 0. S. 622, Sec. 215.
&
19i5.
Hansford
Hanson
vs.
vs.
vs.
Harbaugh
Harbert
St. J.
Perin, 6 B.
Manley,
vs. Albertson,
v.
Dumont,
Sec.
45.
19.
203.
TABLE OF CASES.
563
'
Hardin
to. Carrico, 3
Hardin's
Admr.
Harding
vs.
N. Y. 461, Sec.
Waters, 6 Lea 3.34, Sec.
vs. Tifft, 75
vs.
Hardman
vs.
Bradley, 83
111.
96.
10.
IBS, Sec. 3.
Sec. 98.
135.
vs. Pool, 41
vs.
Hardy Buggy Co. vs. Paducah Banking Co., 183 Ky. 776,
Hare vs. Grant, 77 N. C. 203, Sec. 286.
Harger vs. Spofford, 46 Iowa 11, Sec. 203.
Hargis vs. Mayes, 20 Ky. L. Rep. 1865., See. 189.
Hargreave vs. Smee, G Bing. 244, Sec. 18', 59.
Hargreaves
Hargroves
vs.
vs.
Stec.
31.
Harless vs. Consumers' Gas Trus't Co., 14 Ind. App. 545, Sec.
Harley
vs.
287.
1921.
28'4.
vs.
vs. Dipple,
Harper
vs.
vs.
vs.
vs.
Harrah
vs.
31 O. S. 72, Sec.
I'l.
76.
Harrington's
105',
Sec.
113, 267.
vs.
vs.
vs.
VB. Jones,
vs. Lee,
P.
Wms.
vs.
vs.
Regester, 70
Md.
109,
6,
1115,
2STi
Sec. 23a.
&
Sec. 132.
58''
vs. Clark, 87
N. C.
vs.
Lumbermen's
vs. Price,
Ins. Co., 8
Mo. App.
37, Sec.
137,
177:,
564
TABLE OF CASES.
(References are to sections.)
Harrison
vs. Sawtell, 10
Union
Pacific
I'l.
vs. Wilkin,, 69
Hart
vs. Clouser,
Mayor
vs.
of
Xewark, 80 N.
J. L. 600.
Hartman
Hartley
Harts
vs.
vs.
Sanford,
Hartwell
Harwood
56'
Wendell, 26
vs.
Hatch
S'ec.
76. 107.
111.
Error
&
vs.
vs.
Whitman,
vs.
vs.
vs. Elkins, 66
Hatchett
vs.
Hatfield vs.
Hathaway
vs..
Hauen&tein
Davis, 33 Cal.
Ii61,
284.
Sec. 190.
10.
Hawes
vs.
vs.
Chace, 19 Pick.
vs.
New
.502,
Orleans Ptg.
Sec. 22,
& Pub.
30.
Co., 29
vs. ICeith,
Hayer
Hayes
Hays
vs.
vs.
Hazard
vs.
34.
TABLE OF OASES.
565
Hadington
vs. Neff, 7 0.
Healdsburg
vs.
229, Sec.
Mulligan,
4.5.
Sec. 167.
Healy
vs.
vs.
Lent,
vs.
Heaton
Eldridge
vs.
& Higgins,
167, Sec.
176.
Hecker
Hedden
Weaver, 34 Fed.
Mahler, 64 0.
vs.
I'la,
Sec.
1119.
Mo. App.
7'6a.
Meadows, 4
Heffield vs.
Sec.
115',
11.
Hellams
vs.
Abercrombie, 15
'
S. C.
Helmkampf
vs.
Hemmingway
Henderson
vs.
2561.
vs.
vs.
Huey, 45 Ala.
275:,
81.
Sec. 98.
111.
505,
Steo.
135.
566
TABLE OF CASES.
(References are to sections.)
Hess
W.
Schnaffner, 13 S.
vs.
Hes8y
vs.
Heitkamp,
Hester
vs.
Mo. App.
Hibbard
vs. Mansfield,
King,
vs.
Morse,
4-8
0. S.
6il'
vs. Scales, 15
vs.
Thomas,
Teim.
Sec. 276.
4-10,
74'.
Sec. 122.
Daman,
1831
Howell, 74
vs.
131.
Sec. 249.
Hiller vs.
76i,
Me. 541,
188.
Rotan Grocery
Mo. App.
Ga..
Co., 127 S.
W.
Hilton
vs.
Dinsmore, 21 Me.
4ilO,
Sec. 40.
Hine
Hiner
vs.
vs.
Hindman
Hinchman
Co., 22 O. S. 451^
TABLE OF
567
C-VSES.
Hoagland
vs.
Mo.
Hobba
Hobson, In
vs. Gear,
Hoboken
205.
1.'}.5.
N.
2fr
vs. Harrison, 30
M5.
J. L. 265, Sec.
N.
J.
Hodgson
vs.
Baldwin,
vs.
Dexter,
65^ 111.
Cranch C.
Hoffman,
Hoge
vs.
vs.
vs. Trigg,
vs.
Hogue
Vintroux, 21
vsi.
Thomas,
vs. Shideler,
(Va.)
W. Va.
Hoggatt
Hohn
4 Munf.
35'
57.
208',
222.
Sec. 222.
HoUingsworth
vs.
Holmes
vs.
vs.
Holliman
vs. Carroll, 27
1'64.
137.
Sec. 185.
568
TABLE OF CASES.
(References are to sections.)
136.
Home
Home
vs. Hosie,
Hook
3 Bing. 322,
124 N. Y.
1,
138.
iSec.
114, 220.
iStec.
vs.
vs.
vs.
Richeson, 115
111.
Sec. 276.
Hoover
vs.
vs.
Rep. (Cal.)
Stec.
67.
274.
Horn
vs.
195.
Hosmer
vs. Piatt,
Hun
Houck
House
Hover
Howe
vs.
vs.
iStec.
1.
vs.
vs. Graham, 106 Ind. 195, Sec. 275.
vs. iSchnadig, 235 III. 301, Sec. 100.
569
TABLE OP CASES.
(References are to sections.)
Howard
vs.
TO.
46.
Howley
Scott, 123'
\-s.
Minn.
Sec. 189.
Hoxie vs. National Bank, 20 Tex. Civ. App. 462, Sec. 276.
Hoyle vs. Hoyle, L. R. (1803), 1 Ch. 84, Sec. 31.
Hubbard
vs.
vs.
Gumey, 64 N.
vs.
vs'.
Hubert
Mendheim, 64
VB.
App.
Cal.
1'9,
213i,
61.
83.
Sec. 147.
Hudson
Kan.
110.
Huebner
vs.
Howard 5W,
Sec. 205.
Hulett
vsi.
Peper
Co., 180
Soullard, 26 Vt.
N.
296.,
86.
vs. State,
vs.
124 Ind.
3<J6,
Sec.
WO.
vs. O'Brien, 37
53'
Dunemore, 63 N. H.
17'1',
Sec. 135.
67.
TABLE OF CASES.
570
(References are
to sections.)
Husak
231.
99.
vs.
Huyler
Hya*t
Hyde
vs.
vs.
vs.
vs. State,
vs.
512
Tracy, 2
129.
Day
Hydraulic Press Brick Co. vs. Neumeister, 1& Mo. App. 592, Sec
Hyland vs. Habich, 150 Mass. 112, Sec. 71, 119.
'Sec.
128, 19(X
96, 106
129.
Iliff vs.
Indemnity Co.
131.
106.
TABIiE OF CASES.
(References are
571
sections.)
to
111.
637, Sec.
U3.
Iowa Loan & Trust Co. v.s. Haller, 119 Iowa C45, Sec. 90.
Irby vs. Livingston, 8'r Ga. 281, Sec. 24S.
Annan-Burg Milling
2'14,
Co., 179
Crook, 17 Col.
vs.
l.
Md.
262, Sec.
&
vs.
vs. Fidelity
VS.
Jackson,
vs.
Lowe,
Jacquemine
vs.
'2.55.
&
Casualty
Bing.
9,
Co., 75
V6.
Sec. 20.
111.
Sec. 74.
183.
111.
VS-.
Jackson
22.
10.
8,
ve. Hulce, 17
147.
vs.
vs.
Williams, 5 Barn.
James
vs.
Jameson
& Ad.
138.
vs.
Tamieson vs.
Holm, 69
111.
App. 119,
Md.
75, i9ec. 8.
Sec. 6, 102.
1117.
Underwood,
Jeffery vs.
Jemison
vs.
142.
122.
vs.
vs. Skillern, 5
191.
Jerman
Jerome
vs.
vs.
Jessup vs.
Sec. ISl.
Mo. App.
Sec. 221.
vs.
Isnard vs.
Jack
11(5.
26fi,
Sec. 122.
S.
TABLE OF CASES.
572
Van Steenburgh,
Jewell vs.
vs.
Buck,
vs.
Eaion Milling
v.
Elwood, 82 N. Y.
351
138.
Co.,
18'
3fi2,
Sec.
W3.
Goldsborough,
vs.
vs.
vs.
vs. Hicks'
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
109.
170.
vs. Zitok, 51
Johnston
vs.
Iowa
vs.
vs.
Maples, 49
May, 76
111.
Ind.
2i93,
Droneberger, 23
vs. Gibson, 82
vs'.
Goodwin,
Ky.
30'
VB'.
Trvine, 23 Hiss.
361',
Sec. 220.
T^IBLE OP CASES.
573
vs.
vs.
vs.
vs. Sarcihett, 61
Iowa
vs.
vs.
111.
61, Sec. 9.
Zimmerman,
.Judah vs.
Judge of Proba/te
478',
vs.
Couch, 59 N. H.
vs.
276',
Sec. 228.
40.
Kagay
va. Trustees,
68
111.
198'.
vs.
vs. State,
ex
rel..
Woods, 78
I'nd.
Kansas City Terra Cotta Lumber Co. vs. Murphy, 49 Neb. 674, Sec.
Kansas City vs. O'Connell, 99 Mo. 357, Sec. IS'l.
Kansas City Sewer Pipe Co. vs. Thompson, li20 Mo. 218, Sec. 131.
Karr vs. Peter, 60 111. App. 209, Sec. 136.
Kasson vs. Brocker, 47 Wis. 79, Sec. 181.
Kattleman vs. Guthrie's Estate, 142 III. 3S7, Sec. 236.
Katz va. Moessinger, 110 111. 372, ,Sec. 279.
Kaufman vs. Siboard Air Line Ry. Co., 10 Ga. App. 248, Sec. 214.
Kaufmann vs. Cooper, 46 Neb. 644, Sec. 76-a, 131.
Kautzman
Kay
vs.
Keach
vs.
vs.
Hamilton, 84
111.
App.
Kearney
vs.
Andrews, 10 N.
vs. Sascer,
J.
Iflft,
574
TABLE OF CASES.
(References are to sections.)
Kearsley
vs. Cole,
Keate
Temple,
vs.
m
1
M. & W.
&
B.
Keel
vs.
Larkm, 72 Ala.
Keen
vs.
Co., 64
Neb.
&
Keithsburg
E. E. E. vs. Henry, 90
111.
216.,
Sec. 254.
vs.
104',
Sec. 283.
vs. VWiitniey, 45
VB. Scott,
Kellogg
vs.
VB. State,
Kelly
43 Miss.
57,
Mass,
3.73,
Sec. 255.
Kemp
vs.
West, 80
vs.
Finden,
Kemper
JSr.
12-
Y.
M.
Ii39,
Sec. 221.
& W.
42,1,
Kemnedy
vs.
Brown, 21 Kan.
vs. Goss,
vs.
Kennedy,
248'.
104.
Kemmerer
Keyes
vs.
TABLE
OJF
575
CASES.
401',
See. 14j.
vs.
Moore,
Killfoil vs.
W.
4|3 S.
Kimball
vs.
vs.
VS-.
Roye,
vs:
(S. C.)
Kimmel
La.w
9 Rii?li.
77, ISS..
vs.
Co., 57
Minn.
97'.
King
vs.
vs.
BaMerson, 13 R.
vs.
VB.
vs. Nichols,
W.
vs.
Sec. 109.
92-,
rii6.
I.
S.
&
Wash.
61'
N. Y. 356, Sec.
Hun
2.
111.
Kirkpatrick vs.
Kirechbaum
&
Howk, 80
111.
3-5,
Kitson
vs.
36?7i
3,
111.
16, 91,
lia
Sec. HIO.
Wash.
Sec. 76.
3,
Sec. 115.
Sec. 280.
Klopp
vs.
Lebanon Bank, 46 Pa
vs. iSlwaney,
vs.
Knepper
Van
2Si
United Elec.
Banking
Knaffel vs.
Knapp
3.1
Klipp(l vs.
Co., 101
Md.
66.
29',
Sec. 57.
Etten, 55
Hun
428,
iStec.
188.
II.
Knickerbocker Trust Co. vs. Carteret Steel Co., 82 Atl. 146, Sec. 248.
Knight vs. Charter, 22 W. Va. 422, Sec. 99.
vs.
vs.
35,
iSlec.
8.
576
TABLE OP CASES.
(References are to sections.)
Knox
Co.
Koch
vs.
71.
Bank
Koch's Estate,
1'4S
78.
Koenigsberg
Ko.hn
vs. Leninig,
161 Pa.
Bros', vs.
Konitzky
vs.
Kortlander
286.
Kramer
Kramph's Executrix
Krug
vs'.
6',
275.
7S-a.
Kuns
KUnz
Labbe
vs.
vs. Boll,
vs.
Bemardy, 196
LaBelle Bron
Works
Lacoste
Ladd
vs.
vs.
Bexar
Co.,
Board, 80
vs.
111.
111.
vs. Herter,
vs.
Ladies of Maccabees
LaFaytte Co.
174.
La Farge
244.
vs. Illinois
TABLE OF CASES.
577
vs. St.
Lake
57.
151' 111.
&
vs.
Brutton, 8 DeG. M.
vs.
5T.
Lakeman
Lamm &
Sec. 3&.
Lammon
Moon, 103
vs.
vs. State,
S.
W.
87.
Sec. 114.
211',
Lowder,
vs.
6'5
Lance
Landa
Heerman, 85 Tex.
vs.
1,
Sec. 181.
vs.
58'
Iowa
vs.
107.
Large
Mon.
193'
Larson
vs.
vs.
Wyman,
LaRose, et
al.,
vs.
14
Wend
126, 130.
Lasher
Lawrenson
Lauman
vs. Nichols,
15>
Iowa
&
8, 10.
161',
Sec. 90.
Lauer Brewing Co. vs. Riley, 105 Pa. 449, Sec. 106.
Law vs. East India Co., 4 Ves. Jr. 824, Sec. 2.
6,
71,
107,
578
TABLE OF CASES.
(References are to sections.)
vs. Thorn, 9
Layer
Nelson,
vs.
Laylin
Knox, 41 Mich.
vs.
40, Sec.
2i5il.
vs.
Leaehman
Leake
Leary
&
vs. Dick, 10
vs.
vs. Jones, 17
C. B.
N.
17.
S. 482, Sec.
15i
106.
Manley,
vs.
vff.
VB.
1.54
Peckham,
vs.
vs.
17
Lehman
MoQuown,
vs.
Leighton
Lemmert
Lemmoni
vs.
vs.
Brown, 98 Mass.
Guthrie
Lengle
vs.
ve.
Whitman,
Lemp Brewing
Lennox
IBros.,
vs.
vs.
vs'.
TABLE OF
579
CASISS.
Leonard
vs. Spcidel,
vs.
vs.
9951,
Sec.
m.
Conway, 50
Leslie vs.
Levy
vs.
Lewis
Sec.
60S',
IS!6I
118.
vs. Merrill,
Lewark
Romney,
vs.
vs.
Brewster, 2
vs. Collier,
McLean
19.6.
Liddell
Liebke
Wiswell, 50
vs'.
vs.
Lillard vs.
Vit. 365,
Thomas, 116 U. S.
Lillard, 44 Ky. 340,
605i,
Sec. 287.
Sec.
143'.
Lingenfelter vs.
Bowman,
16'6
Iowa
649',
Sec. IS.
Linn
v'.
Lipscomb
vs. Grace,
Kan.
vs. State, I
134.
580
tabl:e op cases.
(References are to sections.)
vs.
vs.
Wyo.
&
Banking Co.
Richmond Mfg.
vs.
Co., 108
Me.
206;
Sec. 118.
Livingston
vs.
vs.
Exum,
vs. Fidelity
&
Lloyd
Lloyd's
vs.
Woods, 20 Mont.
Lobaugh
vs.
Lobenstein
Locke
&
vs.
vs.
McVean, 3 Mich.
vs.
vs.
Loew
vs. Stocker, 68
Logan
vs.
Bank
50.
Lonergan
Long
vs.
vs.
vs.
American Surety
vs. Miller, 93
vs.
vs.
Longan
106.
581
TABLE OP CASES.
(References are to sections.)
&
Louisville N. A.
(Sec.
Law
Rep. 360,
135.
McCoy,
vs.
Rockwell,
81,
vs. Voorfiies,
40 N.
W. Va.
& Browne
Loverin
Water
Louisville
15.
vs.
Lowe
vs. Peere, 4
Reddan,
vs.
vs. Riley,
Lower
vs.
vs.
vs. State,
N. Y. 601, Sec.
82.
64 Ind.
42'1,
vs.
vs'.
vs. Futrall,
2511
Sec. 174.
vs.
Lucas
vs.
vs.
Luark
vs. ya,tes, 37
Lowry
Wis.
vs.
Lowman
50.
vs.
vs.
Lumber
vs'.
va.
Lumsden;
Lund
vs.
Lunsford
Lusk
Lutt
Lux
vs.
vs.
vs.
Lyman
MoLeod, 19
&
Sec. 8.
TABLE OF CASES.
582
Lyon
\s.
vs.
Hersey, 32
T9.
Hun
4fi.
TO. Plium,
Lyons
vs.
M
vs. Wells, 7 How. 272, Sec. 284.
Macfie vs: Kilanea, 6 Hawaiian 440, Sec. 281.
Machado vs. Fernandez, 74 Cal. 362., Sec. 275.
Machin vs. Prudential Trust Co., 210 Pa. 253, Sec. 100.
Mace
Mack
192.
vs.
Crane
Co., 92 111.
126.
Sec. 214.
123.
vs. Philadelphia,
Mallory
vs. Gillett, 21
10
Y.
Wend.
.'528,
e, 71.
Sec. 173.
216 U.
533,
S.
Stec.
Stec.
131.
54.
vs.
Manning, 26 Kan.
Mills, 12 Up. Can.
vs.
98,
iStec.
(Q. B.)
Sec. 11.
214.
515, Sec. 51.
122.
50, 55.
TABLE OF CASES.
583
Many
vs. Sizer, 6
Gray
Sec. lOo.
192.
vs.
Iowa
vs. Griffin, 42
Harrington,
vs.
18i
vs. Pike, 10
Marshall
vs.
vs.
Marmaduke
Martin
vs.
vs.
vs.
vs. Ellerbe's
126-,
Sec. 108.
vs.
vs.
vs.
W.
&
John.
273',
235',
Sec. 101.
116.
Thomas,
214
How.
Bogg, 2 Mylne
vs. Hall,
Sec. 208.
&
vs. Nichols,
vs. Pierron, 69
vs.
18i,
59.
208.
584
TABLE OF CASES.
(References are to sections.)
Mason
vs.
vs. Terrell, 3
Massey
Browm,
vs.
vs.
Mann,
JIassie vs.
Masser
17
Iowa
Mathews
vs. Aikin, 1
N. Y.
&
vs. PheJps, 61
.595,
vs.
8.
5.59,
Sec. 78.
46 Mo. 301,
Densmore, 109 U. S.
vs. Switzler,
Matthews
vs.
W.
vs. Hall', 21
W.
Mathis
Morgam, 72 Ga.
vs.
Sec. 96.
216, Sec. 172.
Sutton, 19
vs.
W.
Maxey
May
528i,
vs. Ball,
2il
Va.
May, 19
vs.
vs.
Hutchinson,
vs.
Mayor
57'
2:57,
Sec. 19a.
vs.
jMays vs.
vs.
Mayhew
Sec. 67.
See. 11.
of East
ilayott
Sec. 256.
Ky. L. Rep.
vs.
Mayo
5,
Sec. 49.
vs. Criekett, 2
Swanst.
1S6',
MoArdle
vs.
McAreavy
McBride
McCalla
vs. Magirl,
123
vs. Potter-Lovell
vs. Patterson, 57
McCallian
vs.
McCanna &
605, Sec.
23i,
Co.,
169 Mass.
7,
Ky.
90.
Sec. 266.
,
iSec.
McCarthy
Iowa
vs.
vs.
243, 279.
111.
616,
Sec.
190.
58T.
585
TABLE OF CASES.
(References are to sections.)
Mo. 26%
vs. Frazer, 62
McCarty
McCartney
McCasIand
Sec. 218.
vs.
Doorley, 47
vs.
McCaughey
How.
Roots, 21
vs.
vs.
111.
43.
McComb
164.
66, 67.
MoKee,
16i
McCulloch
vs.
MoConnell
113
vs. Poor,
&
McGomion
Iowa
Ky.
vs.
McConnick
Bay
vs.
67.
McOormick Co.
vs.
McKce,
Utah
McCoy
W.
Hun
McCready
McCreary
vs.
Van Antwerp,
vs.
va.
Van Hook,
MoDaniel
vs.
McDonald
va.
vs.
State of
111.,
va. Whitfield, 27
McDougall
MaoDowell
vs.
MeDougald
24
re,
vs.
222
111.
Can.
Moran,
(S. C.)
52.
4, Sec. 114.
vs.
vs.
Burwell, 4
vs.
vs.
Rand
vs.
Wadhams,
87,
Sec. 57.
TABLE OP CASES.
586
178.
Co., 41 Mont. 211, Stec. 36.
Clark, 56 N. Y. 34, Sec. 72, 74.
Carnegie Trust Co., 221 N. Y. 92, iSec. 245.
Com., 7 Kv. L. Rep. 287, Sec. 231.
G^rstley, 204 U. S. 489, Sec. 128.
McGowan Commercial
McGrath
vs.
vs.
McGuire
vs.
vs.
Midland Coal
Co. vs.
See. 8.
McKenzie
vs. Barrett,
Sec. 76-b.
vs.
Lange Mfg.
vs.
Co.,
lo5 S.
W.
5,57,
McMillan
McMuUen
197
111.
540,
104.
76-a.
Sec. 57.
vs.
vs.
Dana, 18 Cal.
vs.
Sec. 281.
'
W. Va.
Meek, 30 Mo.
MoPherson
345',
vs.
Sec. 279.
11.
Sec. 70.
TABIJS OF CASES.
^
McShane
vs.
Mead
How,
587
N. H. 348, Sec.
169.
See. 22.
97.
vs. Merrill,
vs.
vs.
Meador
Hears
vs.
Meaux
Commonwealth, 8 Watts
vs.
vs.
Mechanics
&
Trader's
Bank
197.
M. E. Church of Franklin vs. Equitable Surety Co., 269 Pa. 411, Sec. 238.
vs. Conun., 74 Ky. 605, See. 232.
Meek vs. Frantz, 171 Pa. 632, Sec. 15.
Meggett vs. Baum, 57 Miss. 22, Stec. 81.
Megrath vs. Gray, IL. R., 9 C. P. 216, Sec. 100.
Meinhard vs. Youngblood, 37 S. C. 223, Sec. 192.
Meiswinkle vs. Jung, 30 Wis. 361, Sec. 83.
Melendy vs. Keen, 89 111. 395, iStec. 255.
Medlin
Mellendy
vs.
Austin, 69
111.
15, Sec.
118.
Menifee
vs.
Mercantile Ins. Co. vs. Clark, 118 Mass. 288, Sec. 248.
vs.
vs.
Merriken
588
TABLE OF CASES.
(Refereuces are to sections.)
'
Metropolitan Life Ins. Co. vs. Bender, 124 N. Y. 47, Sec. 134.
Metropolitan Washing Machine Co. vs. Morris, 39 Vt. 393, Sec. 71.
Meyer vs. Fagan, 34 Neb. 184, Sec. 208.
vs.
Hartman, 72
vs.
Ruhstadt,
Meyers
111.
6fl
App.
111.
Campbell, 99 N.
66.
298i,
MeCord
2155.
Sec. 63.
vs.
vs.
vs.
vs.
vs. Fichthorn, 31
63i.
36, Sec. 7.
Pa.
252.,
Sec.
1216.
vs. Finley,
vs.
Dev.
Law
&
(S. C.)
Bat.
D.
Law
Sec. 103.
vs.
Kenmedy, 12
vs.
vs.
vs.
vs.
vs.
vs.
S.
478!,
Sec. 90.
67, 68.
vs.
84.
2, 50, 76,
151, 158.
76-i
589
TABLE OP CASES.
(References are to sections.)
2 Met. (Ky.)
(iOS-,
Jones L. (N.
Sec. 74.
6,
61, 68.
C.)
Todd, 83 Ind.
vs.
25,
Sec.
93.
Milton vs.
De Yampert,
vs. Huff, 41
vs.
vs.
vs.
vs. Sullivan,
214.
W.
S.
148.
Sec. 52,
6.5.
Miteliell
Mix
vs.
MizB
People, 86
111;
vs.
Sfec.
31.
iStec.
181.
Moies
vs. Bird, 11
Moloney
vs.
9.
Monro
Montgomery
203,
iSteo.
53.
vs. Holt,
vs.
vs.
vs.
10 Gratt.
(Va.)
284,
iSteo.
50, 58.
vs. ILassiter,
16
See.
189, 254.
iSec.
135.
590
TABLE OF CASES.
(References are to sections.)
Moore
vs'.
vs.
vs.
vs.
W.
107
809',
&
Guaranty
Topliflf,
60 Miss.
III.
Sea. 279.
Trust
Co., 151
241, Sec.
Mo. App.
Moorer
2i56,
Sec. 17.
115.
.
vs.
Hall
vs.
&
W.
Lyooi, 34 R.
I.
273',
Sec. 11.
Thompson, 60 Iowa
vs.
Morley
vs.
Boothby, 3 Bing.
vs.
Metamora, 78
Mortlock
111.
394,
Sec.
156,
174.
Morton
Wadsworth,
17
Wend.
Morris Canal & Banking Co. vs. Van Vorst, 21 N. J. L. 100, Sec. 140.
Morrison vs. Arons, 65 Minn. 321, Sec. 76, 77, 107.
vs. Citizeois Nat. Bank, 65 N. H. 253', Sec. 96, 115.
vs.
Poyntz, T
vs. Taylor, 21
Dana
Moss
V9.
vs. Pettingill,
vs. Riddle, 5
vs. State,
10
127.
TABLE OF dSES.
593
Moses
VS.
vs.
Mudge
vs.
Ky.
152'
10.
Vamer, 146 N. C.
vs.
22, 102.
Mulcrone
Mullen
vs.
Mulkey
vs. Estudillo,
vs.
Mumper
Munster
&
Leinsber
Kan.
Bank
Murphy
Wash.
vs. O'Brien,
56
vs. People,
vs.
Gage, 21 S.
W.
vs.
vs.
Montandon,
vs.
vs.
vs. Stell,
Murphey
Idaho
vs. Gates, 81
42.
TABLE' OF CASES.
592
Museum
Muzzy
vs. Stattuck,
Myers
vs.
Bank, 79
vs.
Myres
vs. Yaple, 60
Mystic Workers
vs.
111. 26(7,
Sec. 83.
U.
& Guaranty
S. Fidelity
App. 223,
Sec. 17.
N
Nally
Nanz
Nash
vs.
Naaon
94.
Gam, 23
W.
National
National
National
National
Najtional
2i5a.
11.
257.
2,
76, 132.
vs.
German,
etc.,
vs.
Natchitoches
vs.
S'ec.
Stec.
246.
137.
Sec. 180.
TABLE OF CASES.
(References are
NeflP vs.
Keil
Board
Vfi.
Stec.
of Trustees, 31 0. S.
593
sections.)
to
20.
Sec. 144.
15,
vs. Morgaji,
Mo. App.
47,
197.
iSfec.
vs.
vs. First
vs.
Woodbum,
Nevitt vs.
160
111.
vs.
vs.
vs.
Hammond,
New
New
New
New
New
New
New
New
New
New
New
New
283i
vs.
vs.
Newman
Sec. 192.
59.
74.
13 R.
I.
3',
Sec. 218.
Sec. 166.
N. Y.
Bedford Institution for Savings vs. Hathaway, 134 Mass. 69, Sec 252.
Brunswick Land Co. vs. Conbeare, 9 H. L. 711, Sec. 110.
England Co. vs. Randall, 42' La. Ann. 260, Sec. 9S.
Haven vs. National Steam Economizer Co., 79 Conn. 482, Sec. 721, 76i-b.
Haven, etc., Co. vs. Hayden, 119 Mass. 361, Sec. 69.
Haven Lumber
Co. vs.
Raymond, 76 Iowa
137'.
&
96'
53.
Nilbaek
vs.
Champeny,
166',
38.1,
Sec. 83.
125.
594
TABLE OF CASES.
(References are
Nicholas
to sections.)
vs.
vs.
vs.
MacLean,
vs.
99.
29.
&
Nichols
NilsoQ
Sec. 11.
vs.
Noble
vs.
Arnold, 23 0. S.
vs.
2164,
See. 197.
2161.
Nordhaus
Norman
vs. Petersen, 54
vs.
Iowa
Jackson Fertilizer
Co., 70 Miss.
vs. Hall, 41
vs.
159.
vs.
vs.
Humphreys,
166,
122.
17, 125.
122,
TABLE OF CASES.
595
Oak
65.
Ogden
Ohio
(N.S.)
vs.
Stec.
261.
Sec. 8.
Opp
vs.
Ward, 12S
182.
Orem
vs.
Orleans
&
Orton
f=ec.
10,
vs. ;Lincoln,
156
111.
17.5
129.
111.
324,
Leeman, 43 Me.
Sec. 215.
.550,
Sec. 76-a.
vs. State,
O'Neil vs.
Co., 113'
129.
oill,
Sec. 42^
76,
596
TABLE OF CASES.
(References are to sections.)
O'NeiU
vs.
vs.
Osborn
vs.
vs.
W.
vs.
Low, 40
vs.
Bobbins, 3 N. Y.
Osborne
S.
vs.
vs.
vs.
vs. GuII'ikson, 04
vs.
vs.
Von
Otis vs.
Oury
-Storch, 15
R.
I.
Ovington
Owen
vs.
Smith,
Sec. 193.
vs.
vs.
Owens
vs. Miller,
vs.
Pace
Sec. 14.
67'.
vs. Ficklin, 76
vs. Mississippi,
Pace, 95
vs.
Savage, 114
S.
W.
Pacific Fire Ins. Co. vs. Paxrifle Surety Co., 93 Gal. 7, Se. 240.
Pacific
Abb. Pr.
Pacific National
Packard
vs.
Pahlman
193.
TABLE OF CASES.
597
Parker
vs.
Parker
&
(Ind.)
Parkman
vs.
vs. Vail,
Parkhurst vs.
Parks
Van
Cortlandt,
How.
Ross, 11
vs.
Parshall vs.
Lamoreaux, 37 Barb.
Hameock, 48 Cal.
Parnfill vs.
4.52,
Sec. 185.
499i,
Sec. 51.
vs.
vs.
McNeely,
Ifl
111.
Pauly Jail Bldg. Co. vs. Collins, 1.38 Wis. 494, Sec.
Paul vs. Stackhouse, 3S. Pa. 302, Sec. 16, 57.
Pavarini
Pawling
& Wyne
vs.
Pajrton vs.
Payne
vs.
vs. Title
&
Paehr,
vs. Powell, 14
Peabody
Guar.
99.
127.
Sec
281.
598
TABLE OF CASES.
(References are to sections.)
Peake
vs.
Dorwin
Pearsell Mfg. Co. vs. Jeffreys, 183 Mt>. 386, Sec. 66.
Wilson, 22
111.
Co.,
B,
10.
82 Va.
Pennington
vs.
Newman, 36
61, &7:
vs.
178',
Sec. 130.
Sec. 181.
138
vs. Borders, 31
vs.
111.
111.
225..
vs.
Bowman,
vs.
Brooks, 22
vs.
vs.
147
111.
111.
9, Sec. 151.
vs.
vs.
Hartley, 21 Cal.
vs.
Healy, 128
111.
vs. Holley, 12
Sec. 149.
Sec. 110.
9',
4211,
585.,
Wend.
vs.
Huson, 7 Cal.
vs.
Knickerbocker, 114
539.,
148i.
Sec. 180.
TABLE OP CASES.
(References are
599
sections.)
to
vs.
vs.
McGrath, 279
va.
Meacham, 74
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
111.
111.
550,
Stec.
163, 166.
vs. Petrie,
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs. Seelye,
vs.
vs. iSinith,
vs. Stephens, 71
vs. iSluhre,
vs.
Van
97
272
vs. Tioe,
App. 231,
111.
111.
Stec.
168.
vs. Vilas,
vs.
Warren, 5
Hill.
600
TABLE OF CASES.
(References are to sections.)
ferlman
App. Div.
vs. Bernatein, 93
vs.
vs.
Pettee
111.
MS,
Sec. 230.
111.
Phares
Phelps
vs.
Barbour, 49
111.
66i,
Sec. 16.
36.
8, 10.
Phelan
vs. Stewart,
vs.
&
&
Camp.
5il3i,
Sec. 30.
vs.
vs.
vs.
Hardee,
195.
TABLE OF CASES.
601
Pierce
I's.
vs.
vs.
vs.
Williams, 23 L.
J.
Hun
.336,
2i54.
Sec. 193.
McCoy, 90 Tenn.
.367,
Sec. 266.
Kne
Co. vs.
Pinkstaff vs.
The
People, 59
111.
Pittman
vs.
Gray
Pittsburg, etc., Ry. Co. vs. Shaeffer, 59 Pa. 350, Sec. 107.
Loan
Kan.
2.52,
Sec. 66.
vs.
Plummer, et
76-a.
602
TABLE OF CASES.
(References are to sections.)
Post
Potter
vs.
Gronbeck, 117
vs.
vs.
111.
vs.
vs.
Power
vs.
48'
212131.
238i,
See. 78.
Prescott National
Preston
Bank
vs.
vs.
vs.
Gould,
m Iowa
68i9',
See. 90.
Pressed Radiator Co. vs. Hughes, 15S 111. App. 80, Sec. 66L
Prefontaine vs. Richards, 47 Hun 418, Sec. 183.
Price vs. Barfcei-, 4 El.
&
vs.
vs.
vs.
vs.
1,
Sec.
150, 225.
2S,9
vs.
vs. Scott. 13
Wash.
vs. Trusdell, 28
Prime
vs.
N.
TABLE OF CASES.
608
Mo.
Man.
&
145i.
115, See.
111.
1.5'2.
Williams, 30 R.
I.
Prout
Webb,
vs.
87 Ala.
Sec. 41.
5193,
& Payne
PuUiam
Pundmann
vs.
vs.
Putnam
Farnham, 27 Wis.
Schmidt, 16 N. M.
vs.
vs.
Pybus
Pynes
Queal
&
vs.
Gibb, 6 El.
vs.
State, 45 Ala.
&
Sec. 101.
-VS.
vs.
Putney
16.
Purviance
1,
152-.
Sec. 232.
Iowa
Iowa
Quinlan
Quinn
vs.
vs.
Rachelman
vs.
7,
43.
Sec. 187.
&
Rainbow
Raikes
vs.
vs.
Todd,
Ad.
Ramey
vs.
&
111.
Commonwealth, 83 Ky.
.Sec.
32.
604
TABLE OF CASES.
(References are to Fections.)
Ramsay's Estate
Rand
vs. Barrett, 66
Randall
vs.
vs.
Randol
Rankin
vs.
Iowa
Sec. 46.
Reader
Ream
9.
23, 90.
208.
vs.
32.
Lynch,
7 111.
134.
Remington
S.
Remsen
vs.
Rei&ert
vs. Elliott,
TABLE OP CASES.
(References are to sections.)
Renfroe
vs. Colquitt, 74
Lumber Co., 80 S.
Waterman, 151 111. 169',
Resseter vs.
Sec. 34.
vs.
vs.
vs.
Rhea
McCague,
vs.
vs.
Morton, 19 Mo.
263',
Sec.
114.
Mon. (Ky.)
34,8,
vs.
vs.
vs.
Richardson
605
TABLE OF CASES.
606
Waldo,
vs.
vs. Mitchell, 3S
vs.
Roach
Gardner, 9 Gratt.
vs.
Roberts
vs.
vs.
Iowa
vs. Richardson, 39
67.
vs. Riddle, 79
vs. State, 22
vs. State, 34
Kan.
Robertson
W.
Angle, 76 S.
vs.
vs. Findley, 31
vs.
U.
57.
Robeson
Robbins
Robinson
vs.
vs.
vs.
Sec. 52.
vs. Bartlett, 11
vs.
vs. Brinson,
vs.
Brown, 82
vs. Dale, 38
8.
111. 279',
Sec. 187.
82, 86.
vs. Hall, 33
vs.
vs.
vs.
vs.
Kan.
14.
&
L. Co., 91
TABLE OF
607
casp:s.
Roeco
14.j.
vs. Cicalla,
Bank
vs. Holt,
58 Conn.
.311,
Sec.
9l.
ry26,
Rochester City
Rodgers vs.
282.
Rodman
Roe
vs.
Moody,
184.
vs. Kiser, 62
Rogers
vs.
vs.
vs.
Shaw, 59
vs.
vs. State,
Romine
Ross
vs. Ferris,
vs.
vs.
18
Hun
210, Sec.
86.
111.
142.
6*^8
TABLE OF CASES.
(References are
Rudolph
Rudy
vs.
to sections.)
2siS,
Sec. 224.
vs.
vs. Clark, 7
Mon. (Ky.)
Cranch
69',
See.
18',
S. 443, See.
vs. Freer, 56
U.
N. Y.
179.
Ryan
vs.
vs.
Ryndak
vs. iSaawell,
Sabo
23 Okl. 759,
Iowa
Stec.
181, 183.
Slacram.ento
Lumber
Stec.
43.
,S!achs vs.
SkflFol'd vs.
Wade, 51 Ala.
Stec.
15,
108.
TABLE OP CASES.
(References are
Salt
hake Coun'ty
vs.
Clinton, 39
to
609
sections.)
Utah
vs. Forster,
Wettermark, 20 Tex.
Sandoval vs. U.
10.
vs. Wallis, 67
&
vs'
Savage
Sec. 163.
vs.
Saunders
5'67,
vs.
Wakeiield, 4 Barn.
&
1.
vs.
vs. Chick, 64
N. H. 410, Sec.
94.
vs. Fernald, 59
Me.
500, Sec.
9.
Md.
&
Schram
Werner, 85
vs.
County
Schuylkill
99'
Hun
Ky.
378.,
Sec. 142.
293, Sec.
vs. Copley, 67
Schureman
vs.
Schuek
vs.
People,
.5'5
263, 264.
111.
14.
10, 29.
610
TAX* ^ OF CASES.
(References are to sections,)
Scheid
vs.
Schening
Schwartz
vs.
Schunack
vs.
&
Schoonover
vs. Allen,
App.
Schmeckel Cloak
Schreiber vs.
&
Suit Co., In
Wonn, 164
Ind.
7,
24b".
re, 3
Nat. B.
News
110, Sec.
2512.
Sec. 76-a.
Schleissman
Widholm, 59 Neb.
vs.
vs.
Scott
vs. EUitt,
5il,
Sec. 248.
Sec.
13S'.
vs.
White, 71
111.
Manf. Co.
vs. Cassidy,
vs.
15.
Seaboard Air
Seaman
vs.
liine
vs.
Seaver
vs.
Pierce, 42 Vt.
Seavey
vs.
Beckler,
'Steattle
Crockery Co.
iSlearing
vs.
325, iSec.
173.
Siec.
249.
TABLE OF CASES.
611
Second National
Bank
Law
76 Ind. 223,
vs. Hill,
Eep. 1244,
Stec.
15.
iSec. 101.
vs.
113i
Lamke, 40 Minn.
27, Sec.
131.
Brewing Co.
vs.
Ayrea, 60 N.
J.
&
256'.
New
vs.
vs. Oelrichs,
106, lOft
108.
Shay
56i5,
Sec. 253.
'
612
TABLE OP CASES.
(References are to sections.)
Sherrell vs.
Sheldon
vs.
88, 114.
Davidson,
vs. Hill, 33
vs.
Van
vs.
Smith,
Shelton
vs. State,
Shenandoah Bank
Shelby
Tenn.
62'
5i3'
vs.
Adm.
Shipp's
Water Works
vs. Suggett's
Shows
vs.
Iowa
Co., 83
Adm., 9 B. Mon.
5,
See. 75.
31.
111.
W.
53t>,
Sec. 194.
Shreve
Md.
Shumway
Shupe
vs.
Eeed,
.34
Sec. 208.
Me. 560,
Sec. 140.
Williams, 3
Gill.
&
Johns.
(Md.)
52,
Sec. 25.
Sigoumey
vs.
Sime
vs.
Simmons
Simons
Simons
vs.
&
W.
vs. Steel,
Simmons
111.
Lewis, 128 N.
36 N.
II. 73,
Sec, 50.
Camp,
268.,
274.
741.
TABLE OP CASES.
612
Simpson
Ky.
vs. Comni., 3]
vs. Boyette, 74
76.
vs.
vs.
Draughan, 121 N.
vs. Littler,
vs.
5i8
Iowa
601, Sec. 5.
Hogenson, 19 N.
IJ.
198.
Wash.
vs. Lajigert, 6
Smith
111.
Claxton,
vs. Allen, 1
N.
iSec.
vs.
American Bonding
vs.
Austin,
vs.
9'
17.
Co., 160 N.
Mich. 465, Sec. 259.
C.
vs. Butler,
vs.
vs.
vs.
Davis, 76
vs.
Eakin, 2 Sneed
vs.
vs. Easter,
vs.
S.
See.
E. 670,
66.
iSec.
(Tenn.)
249.
456, Sec.
Stec.
i9ec.
30.
122.
198, 200.
TABLE
S14
(References
(J-c-
CASES.
are. to sections.?
vs. First
vs.
ISt
vs.
vs.
vs.
vs. Ide, 3
Iowa
vs. Jackson, 97
vs. Jones,
7li
Me.
vs. Keniston,
172.
.5'!
vs.
Kuhl, 20 N.
vs.
J.
Mason, 44 Neb.
G^IO,
vs. Morrill, 54
vs.
vs. People,
vs.
Sayward, 5 Me.
vs. Shelden, 36
vs. State, 46
Md.
vs. State, 10
Wyo.
vs. State, 12
vs. Steele, 25
m.
.Sec.
96.
TABLE OP CASES.
615
Snyder
vs. Click,
Wyo.
vs. State, 5
Sooy
vs. State,
Sosman
39 N.
vs. Conklin,
,7.
fiS'
23',
Law
Mo. App.
&
J.
319,
Sec.
188.
9(i.
2411'.
Napoleon
Cotton
Co.,
244.
Southern Surety Co. vs. Burney, 3-1 Okl. 5.52, Sec. 224, 226-.
South Berwick vs. Huntress, 53 Me. &9', Sec. 20, 109, 124.
Southwestern Surety Co. vs. U. 'S. F. & G. Co., 75 Okla. 232, Sec. 180.
Spaulding vs. Andrews, 48 Pa. 411, iSec. 42.
Sparks vs. Farmers' Bank, 3 Del. Ch. 274, Sec. 141.
Spain vs. Clements, 63 Ga. 786, iSeo. 159.
Spangler vs. Sheffer, 69 Pa. 255, Sec. 257.
Spear
vs.
vs.
vs.
Sperb
vs.
vs. Dransfield, 2
111.
New
123.
Zealand, S. C.
319.,
K. Y. 321, Sec. 8.
Lumber Co. vs. Loy, 2.1 Wash;
Sec. 130.
Spokane & I.
!501, See. 137.
Sponhaur vs. Malloy, 21 Ind. App. 287, Sec. 284.
Springfield Lighting Co. vs. Hobart, 98 Mo. App. 227, Sec. 7a
Spring Garden Ins. Co. vs. Lemraon, 117 Iowa 691, Sec. 109'.
Springer vs. Dwyer, 50 N. Y. 19, Sec. 258.
Springer Litho. Co. vs. Graves, 97 Iowa 39, Sec. 94.
Springs vs. McCoy, 122 N. C. 628, Sec. 279.
Sprague
vs.
(329,
136i
143.
Sec. 231.
vs.
State vs.
vs.
Adams, 40 Tenn.
97.
vs. Allen,
vs. Allien, 21
vs.
vs.
ABLE OF CASES.
616
(References are
to sections.)
Ann.
vs.
vs. Bilby, 50
vs.
vs.
vs.
7'4,
Secu I9b
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
Mo. 509,
Sec. 228.
vs.
vs.
vs.
vs. Oarrick,
vs.
vs.
vs. Churchill, 41
Mo.
vs. Churchill,
vs.
vs. Clarke, 21
vs.
Nev.
Cobb, 71 Me.
vs. Colvig,
198',
Sec. 231.
vs.
Cone, 32 Ga.
vs.
Conover, 28 N.
vs.
Conway,
663,
Sec. 232.
TABLE OF CASES.
(References are to sections.)
vs.
vs.
Crooks, 7 0.
vs.
Crowley, 60 Me.
vs.
vs. Coste, 36
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
Sec. 231.
vs. Falconer,
vs.
vs. Felton,
.'59
Mo.
vs. Fitzpatrick,
100, Sec.
Sec. 158.
Sec. 164.
148:
vs.
Fomo,
vs.
Frank, 51 Mo.
vs.
vs.
vs.
Gramm,
vs.
vs.
vs.
Sec. 17.
vs. Griffith, 74 0.
S. 80,
Sec.
218-.
163.
vs.
vs.
vs.
Harper, 6 0.
vs.
vs.
vs.
vs.
vs.
vs. Hill, 47
vs.
S. 607, Sec.
146',
17a
vs.
139'.
228'.
vs.
,vs.
151,
167.
vs. Holt,
617
TABLE OF CASES.
618
vs.
vs.
Jennings, 14 0.
vs.
vs.
Johnsoi^ 56 Mo.
vs.
vs.
vs.
Kennon,
vs.
vs.
vs.
vs.
S.
vs.
vs. Leeds, 31
vs.
Mo.
vs. McFetridge, 84
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
Moses, 18
vs.
vs.
vs.
vs.
vs.
rs.
vs.
vs.
vs.
vs.
vs.
vs. Orsler, 48
Iowa
TABLE OP CASES.
619
State
vs.
vs.
vs.
vs. Polk, 14
Lea (Tenn.)
vs.
Sec. 148.
1,
vs. Porter, 69
vs. Porter,
163.
vs. Potter, 63
Mo.
vs. Pureell, 31
W.
Va.
Ann.
vs. Roberts, 12
J. L.
vs.
IKT.
vs.
vs.
Row,
vs. Ruff,
Iowa
4 Wash.
891
581, Sec.
234, Sec.
23i2.
150.
vs.
Rush
vs.
vs.
vs. Scott, 20
Iowa
vs.
vs.
vs.
vs.
vs. Slauter,
vs.
vs.
Sooy, 30 N.
vs.
183'.
vs.
vs.
vs.
vs.
vs.
'
vs.
vs.
vs.
vs.
Wilson, 29 O.
vs.
vs.
vs.
vs.
vs.
U.
S'.
"20
TABLE OF CASES.
(References are
Stata
to seeiioiis.)
Smith,
111.
Sec. 4S.
1.56
& Adams,
vs.
Miles
vs.
Western
Stanton
& Rawle
Staver
vs.
vs. Missiner,
93'.
vs.
vs.
vs. Holt, 75
vs.
N.
Steffes vs.
Lemke, 40 Minn.
Stevens
vs.
Hay, 61
111.
Iowa
111.
vs. Partridge,
88
App. 665,
iStec.
143.
164.
TABLE OF OASES.
(Refe.ences are
621
to sections.)
III.
Steadman
vs. Guthrie,
vs.
&
Stetson
13'1,
18il.
Stenhquse
Sterling vs.
Steward
Stewart
vs.
vs.
vs.
vs.
vs.
vs.
Knight
vs.
vs.
vs.
&
273'.
Sec. 76.
585, Sec. 61, 66, 67.
Sec. 260.
418',
vs.
vs.
Dennison, 13 Pick.
vs.
Stone
vs.
1,
169.
Sec. 25.
86' III.
218, Sec.
Mo. App.
Storm
108'.
Sec. 114.
Sitone vs.
Billings, 167
111.
170, Sec.
Slec.
Commonwealth, 84 Va.
11.
221.
246,
iSec.
22.
67".
TABLE OP CASES.
622
(References are
StoU
to sections.)
VS.
9&
111.
Strong
vs. Foster, 17
C. B. 201, Sec.
va. Hasterlik,
146
111.
Stroop
vs.
McKenzie, 38 Tex.
Stroud
vs.
Thomas, 139
vs. Ochletree, 11
Stubbins
vs.
10.
Strunk
101.
Iowa
W. Va.
4)25,
15S',
Sec. 197.
Sec. 164.
Ky. 535,
Mitchell, 82
iSec.
260, 282.
Stec.
188.
Framcis
St.
St.
St.
St. Louis
St.
St.
Paul
Paul
76-b, 235.
&
vs. State, 59
vs.
Williams. 43
Suman
vs.
Summerhill
Sumpter
vs.
Wilson,
Kennicott, 103 U.
Suppiger
vs.
Gruaz, 137
111.
S. 554, Sec.
65-
188.
Co., 63
Fed.
TABLE OF CASES.
623
Sutherland
vs.
&
Sutton
Swan
vs. Cair,
vs.
Gray,
,44
vs.
vs.
Timmoos, 81
vs. Hill,
Sec. 97.
2'9.5,
Mich.
178',
Sec. 208.
Swisher
vs.
vs.
McWhinney, 64
Switzer
vs.
Deering, 204
97.
111.
Mo.
T
Tabor
App.
Tanquary
vs.
Tapley
Tarpey
vs.
Tarr
Tate
186'.
vs.
vs.
Tatum
Taussig
vs.
Tatum,
vs. Reid,
145
Farmers Bank
vs. Glaser, 2
Ky.
of Ky., 87
Serg.
& Pawle
398, Sec.
25'5'.
Mo.
624
TABLE OF CASES.
(References are to sections.)
Taylor
Reynolds,
vs.
.53
vs.
vs. Sullivan,
vs.
vs.
Taylor,
vs.
vs.
Wightman,
Taylor County
vs.
Lea (Tenn.)
12.
King, et
al.,
15',
2-a,
1091.
Teasley
Tebo
vs.
vs.
Tel vs.
Teeter
vs.
Teberg
vs. Pierce, 11 B.
Mon.
396',
Sec. 27'4.
Hun
Terry
Mo.
12.
Hun
King, 31
vs.
Thomas
vs.
See. 251.
S.
vs. Carter,
vs. Churchill, 48
vs.
Neb.
vs.
Cook, 8 Barn.
vs.
Hinkley,
vs.
vs.
vs.
266',
Sec. 46.
&
TABLE OF CASES.
625
Thomas
W.
Thompson
16.
vs.
Wade, 72 Ga.
vs.
Board, 30
90',
vs.
vs.
vs.
vs. Hali,
111.
Sec. 167.
Iowa
vs. Jackson, 93
vs.
vs.
vs. Treller,
82'.
360,
Sec.
Thorn vs.
Thorne vs. Travellers Ins. Co., 80 Pa,. St. 15, Se.
Thorington vs. Smith, 8 WiaU. 1, Sec. 4.
Thornton vs. Thornton, 63 N. C. 211, Sec. 99.
Thornburgh vs. Madrem, 33 Iowa 380, Sec. 113.
Thrall vs. Mead, 40 Vt. 540, Sec. 178.
Throop vs. Langdon, 40 Mich. 673, Sec. 145.
Thurber vs. Corbin, 51 Barb. 215, See. 23.
Thurston vs. James, 6 R. I. 103, Sec. 86.
113, 116.
13, 1381.
Tidioute Sav. Baitk vs. Libbey, 101 Wis. 193, See. 51.
Tieman
vs.
Haw,
Timm
vs.
vs.
Kirby, 17
S. C.
1,
Sec. 11.
Sec. 19.
Title
Guaranty
&
Trust Co.
vs.
vs.
Sec. 228.
Sec. 131.
'Sec.
248.
tabu; of cases.
626
(References are
to sections.)
Tobias
vs.
Tobey,
vs.
2ii)
Me.
&
Tolerton
Tolman
Tom
vs. Goodrich, 2
vs.
3'79',
Sec. 255.
Sec. 74.
Co., 213' Fed. 938, Sec. 233.
Sec. 159.
Toronto Bank vs. Hunter, 4 Bosw. (N. Y.) 646, Sec. 261.
Torp vs. Gulseth, 37 Minn. ]3->, Sec. 244, 248.
Tousey vs. State, 8 Tex. 173, Sec. 231.
Toussaint vs. .Martinnant, 2 T. R. 100, Sec. 279:
Towers vs. Moore, 2 Vern. 98, Sec. 119.
Towle vs. Nat. Guardian Assurance Soc., 3 Giff. 42, Sec. 110.
Town
Town
of
of
Towns vs.
Townsend
134.
Co., ISH
N. Y. S. 390, Sec.
29, 47.
Train
Emerson, 80
vs.
Trammell
Trapnall
vs.
vs.
Sec.
177'.
Treweek
Trimble
vs.
Howard, 105
Troup
vs.
vs.
iStee.
141.
18:
tab;[.e
of cases.
627
vs.
Sec. 28.
Sheik, 119'
III.
m%
vs.
Smith, 88
111.
vs.
Southard,
-S'l
IH.
Sec.
App.
148>,
149:
Trustees of Dartmouth College vs. Woodward, * Wheat. 518, 694, Sec. 145.
Trustees of Seventh Baptist Church vs. Andrew & Thomas, 115i Md. 5'3e,
Sec. 17, 76- a.
Tuck
Md.
vs. Calvert, 33
Tucker
vs. Mueller,
287
Md.
Stewart, 147 Iowa
11
322,
'Stec.
19, 182.
294,
iStec.
222.
Tuohy
135.
vs. Fidelity
iSte.
vs.
'Stec.
& Deposit
Co.
Maryland
of
(Cal.),
205.
vs. Killian, 12
vs.
vs.
vs.
vs.
vs.
468',
142.
Waddingham, 58 Conn.
vs.
Tynburg
Tyson
vs.
vs.
Sec
17.
628
TABIiB OP CASES.
(References are
o sections.)
TjUmann
Ullery
82.
22.
vs.
(Col. App.)
Bank
Umsted
vs.
Buskirk, 17 0.
S.
Underwood
vs.
vs.
Union Bank
Nat. Bank, 45 0.
Union Pacific Tea Co. vs. Dick, 87 Conn. 711, Sec. 215.
Union Township vs. Smith, 39 Iowa 9, Sec. 164.
Union Trust Ci>. vs. iSlhoemaker, 258 111. 564, Sec. 119, 215.
vs. McGinty, 212 Mass. 205, Sec. 8.
United Amer. Fire Ins. Ck>. vs. Amer. Bonding Co., 146 Wis. 573,
United Walnut Co. vs. Courtney, 96 Ark. 46, Stec. 39.
United States vs. Adams, 24 Fed. Rep. 348, iStec. 163.
vs. AUsbury, 4 Wall. 186, Sec. 177.
vs. Ambrose, 2 Fed. Rep. 552, Steo. 21.
vs. Backland, 33 Fed. Rep. lS6, iStec. 91.
vs. Boyd, 5 How. 29, Sec. 174.
-'
vs.
vs.
vs.
vs.
Du
vs.
vs.
vs.
vs.
vs.
vs.
90.
iSiec.
Slec.
iSec.
146.
23.
145,
147.
iSiec.
233.
TABLE OF CASES.
629
United States
vs.
vs.
Hudson,
6S'
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
vs. O'Neill,
vs. Poulson,
vs.
vs.
iStec.
vs. Prescott,
vs. Price,
Poweia,
70.
146.
vs.
vs.
I'Se,,
279.
279.
167.
Stec.
223.
U. S. Fidelity
& Guaranty
Bank, 233
111.
239.
vs.
vs.
416, Sec.
vs.
vs.
233.
Stec.
262.
vs.
Omaha
145,
Stec.
Bldg.
&
Cons.
Co.,
116 Fed.
76-a.
TABLE OF CASES.
P30
vs.
vs.
Sec.
Updegraft
Uptmoor
187.
vs.
vs.
V
Vail vs. Foster, 4 N. Y. 312, Sec. 272.
Valentine vs. Donohoe^Kelly Banking Co., 133 Cal. 191, Sec. 71, 119.
vs. Wheeler, 116 Mass. 478, Sec. 123.
Vance
vs.
(Lancaster, 3
283.
164, Sec. 91-a.
Vandyke
Van
Van
Van
Van
Van
Van
vs.
iSec.
185.
vs.
Trempealeau
Stec.
62, iSec.
11.
vs.
Eiddick, 89 N. C.
6, See.
147.
61.
108, 109.
Sec. 256.
Lumber
111.
197.
TABLE OF CASES.
(References are
631
to sections.)
S.)
W
WaddeUi
vs.
vs.
Wade
vs.
Wadsworth
86.
vs. O'Donnell, 7
vs.
Wagenseller
vs.
Smith,
43i
Prettyman,
7 III.
App.
vs.
App.
vs.
Simpson,
Watts.
&
114.
27.
vs.
See. 196.
Walton
vs.
Beveling, 61
vs. Mascall, 13
111.
M. & W.
vs. Jewell,
Sec. 238.
iSiec
269.
TABLE OF CASES.
ffiS
Waller
Walmealy
Wanamaker
Ward
N.
W.
iStec.
283.
Sec. 129.
4.50,
vs.
Chum,
vs.
vs.
vs.
Wick, 17 0. S.
150',
Sec. 84.
100 Pa.
289',
Sec. 249.
vs.
vs.
vs.
Wiard, A-ppeal
Warder
Warren
&
B.
of,
W.
vs.
Branch, 15
vs.
Dickson, 27
88',
Iowa
Tobacco Exchange, 55
Ryan, 37 Mo. App. 466.
vs.
vs. Beardsley,
8<
Wend.
S.
vs.
va.
Morrison, 3 Allen
vs.
W.
912,
Sec
114i.
vs.
2&,
Sec. 122.
vs. Looiisville
Warden
Warner
111.
vs. Hayzlett, 45
Ware
145.
Stec.
187.
56^1,
110.
185'.
See. 275'.
Wash
vs.
Washington
vs.
,
Norwood,
vs. Tait,
Washington Co.
Washington Ice
Waters
128i
Hump.
29.
Waterman
vs.
TABLE OF CASES.
(References are to
vs.
vs.
Watts
sec- ions.)
Shuttleworth, 5 Hurl.
vs.
633
&
66.
vs.
Poague,
vs.
Watson, 9 Conn.
vs.
Wilcox,
Wayman
124,
111.
Sec
95.
8, 10.
vs.
vs.
C.
Sec. 190.
vs. Jones, 58
Waj'niire vs.
W.
319^
vs. Bartlett,
Heam,
vs.
Wayne
42.
vs.
Wayne
3i36.
Iowa
Waughop
Way
vs.
See.
14L
&
Wieatherby
Weaver
vs.
App.
58i2,
Sec. 82.
Webb
Webb
vs.
Dickenson, 11 Wend.
vs.
vs.
Hawkins Lumber
119.
Weibbe
vs.
Weber
vs.
vs.
Roland, 30
Webber
vs.
Webster
Weed
6i9,
vs.
Pa.,
Washington
Co., 26
111.
173.
(Q. B.)
1,
Sec.
515.
22'.
Weik
vs.
634
TABLE OP CASES.
I
Weisel
N. Y. 255,
Monihan, 129 N. y.
Sec. 262.
vs.
vs.
West
Sec. 106.
vs.
vs. Brison, 99
vs. Carter,
129
III.
vs.
Westfall
vs. Albert,
Westermah
vs.
212
111.
Means, 12 Pa.
vs. Frost,
74, Sec.
Sec.
133'.
139.
Wheat
vs. Dingle,
vs.
Wheeler
vs. Fuller,
vs.
vs. Mayfield, 31
vs.
McCabe, 47 How.
Pr.
(IST.
51.
White
vs.
vs.
vs.
vs.
vs.
TABLE OF CASES.
635
White
vs.
vs.
Howd,
66 Conn.
264,
567, Sec.
Sec.
l.>2.
180.
VS. State,
vs.
Walker, 31
vs.
Wieatherbee,
White's
White's
Adm.
Bank
vs.
vs.
111.
Sec. 86.
422;,
12'6
18',
145.
Sec.
6.
vs.
vs.
vs.
vs.
vs.
Star R.
3.99,
Sec. 23-a.
vs.
2Sr.
34S',
48.
79i.
11, 109.
Sec. 123.
2 Md. Ch.
vs. Fidelity
Sec. 188.
vs. Flippin,
11.
VB.
va.
vs.
vs.
vs.
vs.
vs.
vs.
vs.
iSec.
16.
Sec.
115.
636
TABLE OF CASES.
(References are
Williams
vs. St. L.
vs.
M. &
I.
Tipton,
.")
S.
to sections.)
vs.
Rexroat,
vs.
Woodman,
Sft 111.
7'3
US
vs. Cutler, 61
1,
S Minn.
Wilkinson
W. Va.
vs. Conley,
vs.
522, Sec.
27&
Evans, L.
R.,
McKimmie,
3fi
72, 79.
Wilcox
vs.
Hendee, 74 N.
16
Law
W.
Rep. Eq.
vs.
McVey, 83
vs.
vs.
vs. Spencer, 91
107.
TABLE OF CASES.
637
/
vs.
vs.
vs.
vs.
166.
Wirm
vs. Albert, 2
Winston
Winslow
Wingate
vs.
vs.
114
S.
W.
11.
17.
Thompson, 94 Iowa
Berry, 25 Kan. 373,
iSec. 67.
Withers vs.
Witkowski vs. Hern, 82 Cal. 604, Sec. 159.
Witmer
71
vs. Ellison,
111.
See. 287.
Wolf
vs.
vs. r>es
90 U. S. 1, Sec. 100.
McClure, 79 III. 564, Sec. ISSl
Sec. 136.
vs. Stix,
Wolfe vs.
Wolmershausen vs. GuUick, L. E., 2 Ch. Div. 5114 (1803), Sec. 210, 277.
Walters vs. Hennii^san, 114 Cal. 433, Sec. 268.
Wolverton vs. Davis, 85 Va. 64, Sec. 265.
Wolatenholme vs. Smith, 34 Utah 300, Sec. ^l-a.
Womack vs. Paxton, 84 Va. 9, Sec. 115.
Wood vs. Brown, 104 Fed. 203, Sec. 98.
vs. Ooman, 56 Ala. 23, Sec. 212.
W.
vs.
Oomm.,
vs.
vs.
;i3
VB. Farnell,
VB. Fisk, 631
S.
vs. Fulton, 2
vs. Hollander, 84
vs.
Leland,
2!!H.
^38
TABLE OF CASES.
(References are to sections.)
^Vood
vs.
vs.
vs. State, 66
vs. Steele,
Wood, In
Woods
Md.
9 Wall.
DeG.
Sherman,
re, 1
vs.
ei, Sec.
&
J.
71
196.
73-.
vs. State, 51
Woodstock Bank
80, Sec.
vs.
Downer, 27 Vt.
Woodbum
vs. Carter,
Woodward
83.
Woodhouse
vs.
Law
Woodman
vs.
Woodruff
Wooddell
Woolfolk
vs.
Mooring,
3i
Dev.
vs. Plant,
157.
Worden
Work
115',
28il.
vs.
vs.
Cowhick, 81
111.
25',
Worrall
vs.
vs.
vs.
vs.
vs.
vs.
Wronkow
Wulff
vs.
79 Ala.
2162,
Sec. 40.
TABLE OV CASES.
(References arc to
sectioiis.)
Wynn
vs.
Robinson,
73'
vs.
Wood,
43..
X
Xander
Yager
vs.
vs.
Yale vs.
&
Vough, 23 N.
J.
Youngs
Zane
vs.
McDonald, 67 N. Y.
Zechman
Md.
639
INDEX
(The references are
to pagres.)
Acceptance
verbal acceptance is not within the Statute of Frauds where the
acceptor holds funds of the drawer to meet the bill, 50.
suretyship undertaking not binding until accepted by the obligee,
194.
Accident
sureties not liable for loss of trust funds by inevitable accident, 206.
mutilation of bond by accident, not a defense to sureties, 253.
Act of
in
parol to
contribution,
God-
officer
or his sureties,
286.
641
642
INDEX.
(The references are
to pages.)
Actions
at
liability, 180.
co-administrator
his
may
associate,
of
386.
Additional Security
promisor not released by the creditor taking additional security,
135.
Admissions
of principal, not competent against sureties, to establish default,
298.
entries in books of principal, competent as admissions, 299.
if principal and surety are sued jointly, admissions of principal
are competent, 300.
Advancements'
a guarantor is entitled to notice of advancements made under
the guaranty, 78.
guarantor discharged by alterations in the principal contract as
to the amount of advancements by creditor, 108
when
Affirmance
what constitutes,
322.
as to part of relief granted in lower court, a pro tanto breach of
bond in appeal, 323.
as to one or more of the parties and reversal as to others, a breach
of bond, 323.
by failure to prosecute appeal, 324.
dismissal for want of prosecution, a, constructive affirmance, 324.
dismissal for want of jurisdiction, not a constructive affirmance,
324.
failure to prosecute appeal arising from no fault of the appellant,
not a constructive affirmance, 32.5.
entered by consent or compromise, not a breach of bond, 325.
dismissal of appeal for want of capacity of appellant to prosecute,
considered a constructive affirmance, 327.
INDEX.
(The references are
643,
to pages.)
Agents
contracts in .suretyship, executed by, 23, 36, 468.
neither the principal nor the creditor can act as agent of the promisor in executing suretyship contracts, 23, 24.
not necessary that the autiiority of the agent be in writing, 24, 36.
the Statute of Frauds in some States requires the agent's authority to be in writing, 28.
if agency of one executing suretyship engagement is unautliorized,
a subsequent ratification will validate the transaction, 36, 192.
contract of a del credere agent, not within the Statute of Frauds
and need not be in writing, 51.
who advances payment for account of his principal, not a volunteer,
and entitled to subrogation, 469.
unauthorized statements by agents do not bind creditor, 155.
Agreement
meaning and scope of the word as used in the Statute of Frauds, 29.
view that the Statute of Frauds requires the entire agreement to
pay the debt of another to be set out in the writing, 30.
view that the agreement need not be in writing, 30, 31,
rule in Massachusetts that the Statute of Fravids employs, the word
"agreement" as synonymous with promise, and that the conthe
644
INDEX.
(The references are
to pages.)
AltBTationBContmtiied
Ambiguous AVords
meaning
meaning as
if
is
in
drawn by
Amercementrecord
of,
against public
officer,
302, 303n.
administration,
prin-
381.
Annnity
measure of damages upon bond to secure an annuity is the amount
of payments in default and not the penal sum named, 21Sn.
Anomalons Indorser
INDEX.
(The references are
Appeal and
645
to pages.)
iStay BauAaOontintied
statutes requiring the fixing of penalty of bond by the court, 317.
regulation by statute as to the number of sureties, 317.
waiver of defects by acts of the obligee, 320.
judgment entered bv consent of parties not a breach of appeal bond,
325.
and
thereafter
reinstated
by
INDEX.
646
Consideration, 318.
for which there
consideration, 318.
bond
is
bond by administrator
jurisdiction,
bond
is
wanting
in consideration, 318.
name
omission of
failure of
some
Affirmance, 322.
to constitute breach of bond affirmance must be such final order as
gives the plaintiii" right of execution, 322.
entering an original judgment in the appellate court is not an
"affirmance," 322.
where only part of relief asked for is granted in the reviewing
court, 323.
affirmance as to one or more of the parties and reversal as to others,
a breach of the bond, 3I23-.
affirmance as the result of a failure to prosecute appeal, 324.
affirmance by consent of parties, not a breach of appeal bond, 325.
agreement that action may abide the outcome of a test case, not
a compromise, 326, 327.
Failure to perfect appeal, 320.
want of jurisdiction in the appellate court resulting in dismissal
creates no liability on the bond, 321, 324.
perfecting appeal by consent of obligee after the date limited by
law, 321.
obligors estopped by recitals in the bond that appeal has been
perfected, 321.
faihire to make all parties of the lower court parties in the reviewing court, 321.
where appeal is entertained and judgment affirmed, sureties estopped
from showing the appeal not perfected, 336.
dismissal of
affirmance, 324.
where appellant
is
325.
named
INDEX.
(The references are
^'il
to pages.)
Appearance
time and place of appearance must be
bonds, 392, 394.
place of appearance expressed in
definitely
stated
in
bail
tainty, 394.
Application of Payments
application of payments by the law, where parties themselves make
no application, 134.
in the absence of stipulations by the party paying, the creditor
may apply to unsecured debt, 134.
M. bank holding note of depositor, not under oWigation to surety to
apply deposits of principal in payment of note, 145.
if a note is payable at the bank, a failure to apply deposits in
payment will discharge the surety, 146.
in the absence of stipulation- promisor has no right to control
application of collateral in the hands of creditor, 181.
proniisor discliarged if creditor fails to apply collateral as directed
by principal,
182.
AppTOval
Arbitration
submission to arbitration resulting in dissolving injunction, docs
not constitute breach of the bond, 342.
sureties released upon attacliment bonds by the submission of the
case to arbitration, 364.
Arrestsureties
upon
bail
cipal, 398.
Assignee
surety of insolvent not discharged by failure of creditor to present
claim against assignee, 132.
Assignment
a general guaranty
a special guaranty
is assignable, 63.
is
when assignment
of judgment against property of principal destroys the lien by merger and releases promisor, 144.
surety paying debt of another, entitled to have securities held by
creditor assigned to him, 429, 434.
Assumption
of
mortgage by purchaser
of a surety, 44S.
of
in the situation
648
INDEX.
(The references are
to pages.)
want
to sureties, 353.
release of sureties by substitution or addition of new parties, 358,
363.
sureties are concluded by judgment against tlie principal, 361.
good faith, or probable cause for attachment, not a defense to action
upon bond, 361.
sureties estopped from questioning the regularity of proceedings out
of which their liability arises, 362.
truth Off affidaivit for attachment can not be inejuired into by the
sureties, 362.
sureties can not show that property taken is not subject to attachment, 362.
no defense to sureties that officer levying writ acted without authority, 362.
liability" of sureties as. affected by reference of the case to arbitration, 364.
as affected by judgment again st some and in favor of some defendants, 364.
attachment bonds available in any court to which the case goes by
appeal or error, 364.
if
Bond
judgment
to
property
is
649
INDEX.
(The references are
to pages.)
Attaclnuent Contmued
damaged
damage, 365.
annoyance and mortification to defendant, held an clement of damages, 365.
speculative
interest on
de-
fendant, 366.
sureties upon forthcoming bond, liable only for nominal damages,
where property incumbered by liens equal to its value, 366.
attorney fees in resisting attachment may be recovered, 366.
attorney fees incurred in the final hearing of the case not recoverable, 366.
Attorney
is a public officer, 241.
not a justification to public officer that he was advised by his attorney
to do a wrongful act, 376.
Attorney Fees
in resisting appeal, not recoverable upon the bond, 333.
in procuring dissolution of injunction, recovera.ble on the bond, 348.
if injunction dissolved in the final hearing of the case, attorney
fees not recoverable, 349.
if motion to dissolve injunction unsuccessful, attorney fees not
allowed, although injunction is dissolved on final bearing, 349,
not allowed against sureties for services in modifying injunction,
349.
services in resisting allowance of injunction, not recoverable as
damages, 350.
recove'-able upon bond in attachment proceedings, 366.
in defei''ding replevin, an element of damage in action upon bond, 373.
stipulated in promissory note, available to surety paying note, 439.
surety may reco^rer contributory share of counsel fees from co-surety,
489.
Auditing Accounts^
promisor not discharged by failure of creditor to audit the accounts
of principal, 162, 271.
650
INDEX.
(The references are
to pages.)
B
Bail
392.
bail, 396.
bond to answer
appeared,
Exoneration of
3fl7.
bail. 397.
officer
discharges bail,
397.
sureties
of
delivery
another
State
and
is
sentenced,
upon
bond
the bond is
651
INDEX.
(The references are
to pages.)
Bank
K.
145.
ia payable at the bank a failure to apply deposit in payment
will discharge surety, 146.
sureties of public officer liable for loss of public funds by failure
of bank, 280.
relation of debtor and creditor between depositor and bank does not
if
note
give
bank any
lien
Bankruptcy
discharge of principal debtor in bankruptcy does not discharge
the promisor, 145.
creditor may prove for entire claim, which is part secured by surety,
although the secured part has been paid by surety, 451.
creditors' right of subrogation where both principal and surety are
in bankruptcy, 463.
right of contribution not a provable debt in bankruptcy, where no
Blank Inldorsement
may be completed,
Bonds
a bond is a specialty, 190.
form and execution of, 190.
incomplete bonds will not be reformed by parol proof supplying
omissions, 191.
of surety is followed by words descriptive of official position,
it will be binding as the personal obligation of the signer, 192.
delivery and acceptance are necessarv to the validity of a, bond,
if
name
194, 204.
199.
commencement and
652
INDEX.
Bfunds
Contitmed
to pages.)
when
ment
is
under
seal, 232.
Boohs of Account
entries in books of principal, competent as admissions, to establish
default, 299.
.
Breach of Contract
by creditor to perform his contract with the principal will
discharge the promisor, 109n.
failure
Building Contracts
surety not released by alterations stipulated for in the contract,
107c.
surety discharged by failure to hold back reserve payment stipulated in contract, 107a, 108, 112.
incorporation of the terms of a. building contract into the bond to
secure its performance, by reference, 197.
no consideration to support bond to secure building contract if bond
not demanded till after execution of the main contract, 199.
if building contract is executed upon condition that bond will be
furnished at later date, it is supported by sufficient consideration, 199.
653
INDEX.
(The references are
to pages.)
liens
holders, 211.
distinction between bond to build and
damages for not building, 210n.
not available to
liei^
ma-
sum
Burden of Proof
in action upon a guaranty of collectibility the burden is on the
creditor to show insolvency of the principal, 77.
burden of proving failure or lack of consideration is on the one
making the claims, 199.
if jurisdiction to issue legal process is not apparent upon the writ,
the burden of showing validity is vipon the officer serving the
process, 296.
By-Iiaws
surety of employee of corporation not discharged because the bylaws were not complied with by employee, 157.
incorporation of the by-laws of a corporation into a bond, by reference, 198.
c
Cause of Action (See Actions)
Clerk of Court
sureties of, liable for loss for improperly keeping court records, 264.
liable for loss of papers resulting in damage to litigants, 264.
not liable for failure to account for money received outside the scope
of his office, 273.
Collateral .Securities
654
INDEX.
(The references are
Collectibility
guaranty of
collectibility,
to pages.)
distinguislied
from
a.
guaranty of pay-
ment, 6n,
guaranty
74.
of collectibility, conditional
diligence
trying to
pollpr>t
necessary in establishing
principal, 75, 76.
is
non-collectibility
as
against
the
Colore Officii
defined, 274.
conflicting views as to whether sheriff or constable is liable
his bond for wrongs committed colore officii, 274, 279.
upon
Commercial Guaranties^
defined, 55.
guarantor for one principal can not be held for joint principals, 65.
guarantor for joint principals can not be held for advancemente
made
advances
to one, 65.
made upon a
guaranty, 67.
essential that the language of the guaranty amount to a promise
to pay, 68.
request to creditor to make advances on a letter of recommendation
is not a guaranty, 69.
transfer of obligations of third parsons in settlement of debt, 69.
guaranty will be regarded as joint unless there are express words
indicating a several liability, 92.
judgment against one joint obligor bars action against the other, 92.
at common law, estate of a deceased joint obligor is not liable, 92.
Code provisions abrogating the common law as to the release of the
estate of a deceased co-guarantor. 93n.
guarantor liable for interest upon the debt from the time of the
default of the principal, 93.
if debt is due upon demand, and no demand is made, the bringing
of an action against the guarantor fixes date for computation
of interest, 93.
giving to the contract the same construction as the parties themselves, 57.
63.
may
may
INDEX.
(The references are
Commercial CfnaTaatiesGontirMed
655
to iiages.)
wrong
defined, 70.
conflicting views as to
Absolute guaranties,
73.
defined, 73.
not necessary to pursue and exhaust the principal before proceeding against guarantor, 73.
notice of acceptance of, not required, 83.
Collectibility,
guaranty
of, 74.
bona
upon
77.'
Consideration, 67.
will not he binding without a, consideration, 67.
may be supported by the same consideration as the principal contract, 67.
68.
damage,
91.
656
INDEX.
(The references are
to pages.)
Commercial GnavaiLtiesContinued
Compensationchange
Coneealment
withholding information as to misconduct of principal, although not
specifically inquired about considered fraudulent, 14, 152, 201.
rule not applicable to public officers, 258.
not necessary to show the concealment to be willful coneealment
without intent to deceive is fraudulent, 152.
unauthorized statements of agents not binding upon creditor, 155.
creditor not. bound to disclose misconduct of principal growing out
of other transactions, in the absence of specific inquiries, 154,
158.
to
Condition
promisor not discharged by breach of conditions agreed upon by the
principal but not communicated to the creditor, 103n.
promisor discharged if restrictive conditions as to advancements by
the creditor are not complied with, 109.
if contract made upon condition that the principal give the creditor
additional security, and such security is released, promisor
discharged, 139.
liability of surety who signs-
doctrine of special agency as applied to delivery of suretyship contracts without complying with conditions, 160.
csnstructive notice to creditor of condition, 160.
promisor discharged if contract contains conditions not complied
with, 25a, 163.
distinction between conditions precedent and subsequent as to use
of parol proof in showing the condition, 163.
conditions imposed by law need not be stipulated, 165.
essential to the validity of a bond that the instruments recite t'ue
condition upon which the obligation is to become void, 190.
delivery of bond to obligee must be without condition, 194.
upon which appeal or stay bonds became payable, 322.
of bonds in replevin, 368.
of bail bonds, 392.
imposing limitations upon the liability of corporate surety, 416.
evasive or impossible conditions will not be enforced, 417.
discharging surety of claim is not made within a designated time,
420.
Consideration
essential to suretyship contract, 2, 15, 67.
consideration of the principal contract will support suretyship,
67, 198.
need not
move
15,
INDEX.
657
Continued
(C omsider ation
upon a consideration,
115.
illegal consideration to
658
INDEX.
(The references are to pages.)
Construction^
strict construction of suretyship contracts
by
19.
Continuance
eurety not discharged by continuance of legal action, 127.
continuance of criminal proceeding by agreement between the State
and defendant, releases surety upon bail bond, 128.
Continuing Gnavauty
defined, 70.
conflicting
Contract of Indemnity
defined, 37.
Contract of Suretyship
parties,
1,
4.
guage employed,
lan-
17.
20.
659
INDEX.
(The references are
to pages.)
Contribution^
basis of the doctrine, 473.
several sureties bound by separate instruments with limited liability
but for same transaction not co-sureties and not entitled to
contribution, 453n, 47S.
courts of law assumed jurisdiction of the equitable doctrine of contribution, 476.
practical distinction between action upon implied contract and
equitable action, 477, 500.
arises although promisors are bound by different instruments, 477.
if liability of several promisors is in different amounts, contribution
will be in proportion, 478.
conditions of suretyship affecting contribution may be shown by
parol, 481, 502.
as affected by special contract between sureties, 481.
between j:ersons in the situation of a surety, 482.
stockholders paying assessments for corporate debts, entitled to
contribution from other stockholders, 482.
one becoming surety at the request of another surety, entitled to
contribution, 483.
not available to one who aids in the commission of the default, 485.
does not arise until co-surety pays more than his ratable share, 486.
if co-surety paying less than his moiety thereby extinguishes the
entire debt, he may have contribution, 487.
surety for a surety not liable in contribution, 480.
right of, fixed by payment, 487.
acceptance of note of surety as payment gives right of recovery in
contribution, 487.
may be enforced without regard tO' financial condition of principal,
487.
equitable contribution, 489.
if co-surety is deceased, contribution may be had from his legal
representatives, 491.
if estate is distributed, contribution can be had from the bene-
ficiaries, 491.
may
of limitations deprives
surety paying note void on account of usury, can not recover contribution, 496.
con-
tribution, 497.
is
prima
fn-rie
660
INDEX.
(The references are to pages.)
CcmtribntionContinued
Amovmt recoverable, 489.
costs of litigation
surety, 490.
co-surety
collateral, 494.
if
indemnity
is superior, 495.
ConTentional Subrogation
defined, 470.
arises at such time
stipulate, 470.
Corporate Suretyship
authorized by the statutes of the several states, 12d.
accepted as sole surety where two or more sureties are required, 12d.
courts take judicial notice of statutes relating to surety companies,
lad.
rights of parties the same whether the surety is private or incorporated, 401, 404.
contractual relation the same whether the suretyship is for compensation or for accommodation, 401, 409.
statutory regulations, 402n.
compared with private suretyship, 401, 408.
compared with insurance, 401, 409.
as affected by the premium or compensation paid, 401, 410.
cannot evade liability to the creditor because the principal fails to
pay the premium, 411.
is within the Statute of Frauds, 412.
construction of the contract, 404, 413.
strict construction against corporate surety, 405, 413.
as affected by the fact that the contract is drawn by the agents and
officers of the Surety Co., 414, 41 5n.
where the contract is not drawn by the surety but is prescribed by
the law, 416.
OS affected by special stipulations inserted in the contract for the
protection of the Surety Co., 416.
stipulation that oblisree shall notify the surety of act of pripoipal
that "mav" involve loss on the bond, 417.
stipulations discharging surety if claim is not made within a designated time, 420.
cannot by contract enlarge the common law right of indemnity, 421.
stipulation that amount paid by surety shall be conclusive against
the principal not binding, 421.
INDEX.
(The references are
661
to pag:es.)
sufficient of itself to
Corporationmay bind
may
may
Co'^nreties
extension of time to a surety discharges a co-surety to the extent
of the contributory share of the surety whose contract is
extended, 122, 172.
liability of surety when name of co-surety is forged, 158.
discharge of co-surety releases remaining surety, 170.
surety who pays, subrogated to creditors' right against co-surety,
439, 443.
surviving surety paying debt may have dividends on the entire claim
against estate of deceased co-surety, 451.
subrogation between co-sureties, 453, 454.
several sureties bound by separate instruments with limited liability, but for same transaction ^not co-sure^jes, 4!53n, 478.
contribution between co-sureties, 454.
when sureties upon successive undertakings are not co-sureties, 479.
contribution as affected by the insolvency of one or more co-sure-
ties, 490.
own
debt, 495.
in
Credit
Women)
'
662
INDEX.
(The references are
to pages.)
CTeditor
the obligee in suretyship is called creditor, 4.
owes a duty of good faith toward the promisor, 13, 142.
under no obligation to promisor to acquire lien upon property of
if
principal, 138.
security or liens held by creditor are released, the promisor
is
may
exercise
his option
bill,
officer,
cumulative, 263,
454.
successive appeal bonds, cumulative, 334.
successive administration bonds; curaul'ative, 380.
D
Datechanging the date of maturity of the principal contract
is
a ma-
Death
at
the
common law
each other
is
663
INDEX.
(The references are
to pages.)
Ttea,th.C<mtimied
when death of guarantor operates as
a.
95, 184.
Defalcation'
vfhere
public officer
in
default holds
office
successive terms,
pre-
when guarantor
6.
entitled to
notice of
6,
tribution, 485.
Defeasance
undertaking without defeasance clause, not valid,
318.-
'
contract of, not within the Statute of Fiauds, and need not be in
writing, 51.
Delays
promisor not released by delay of creditor
against the principal, 131, 141, 17-3.
in
pursuing remedies
Delivery'
misconduct of principal in delivery of suretyship obligations without complying with conditions imposed by promisor, 159, 200,
204.
may
bo
ehown by
delivery, 252.
liability upon bond for default before delivery unless expressly
stipulated, 194.
vacation of public office by faihire to deliver bond within the
no
249.,
664
INDEX.
(The references are to pages.)
Depositsurety not discharged by .failure of bank to apply deposits of principal in payment of note due the baiJi, 145.
if note to a bank is payable at the bank the surety is discharged
by failure to apply funds of principal on deposit to the payment
of note, 146.
bank has no lien upon deposit as security for loan made depositor,
465.
Depnty
acts of deputies are official, 244.
distinguished from an assistant or employee, 244.
judicial officers cannot act through deputy, 245.
agreements by principal to appoint deputies, void as against public
..
policy, 245.
created
Disoliarge of Promisor
135.
INDEX.
(The references are
66a
to pagres.)
Siscbarge of PromisoTGontiniied
if
163.
defense
is
tttken
a,
officers,
666
INDEX.
(T]ie references are to pages.)
Discharge of FvoiaiaoTContinued
Fraud as a defense to promisor.
creditor
Negotiable instruments.
failure of holder to make demand upon maker until remedy against
maker is barred, effect upon liability of intermediate indorser,
144.
Disclosure
to
his
knowledge
after
creditor
failure
667
INDEX.
(The references are
to
pages.)
Dissolution of Attachment
by execution of bond, 356.
if attachment is A'oid, bond to dissolve will be void, 350.
bond to dissolve, releases sureties upon bond to procure attachment,
3S7ti.
Dividends^
surety paying entitled to pro rata share of dividend derived from
assets of principal, 450.
surety entitled to dividend on entire claim against estate of deceased
co-surety, 451.
creditor may have
Duress
surety contract must not be induced by duress, 2, 12d.
promisor not bound, if principal entered into the contract under
duress, 12d, 148.
change
isor,
E
Ujectment
of, binds sureties for rents and profits pending
appeal, 332.
surety upon bond to secure purchase price of land, may maintain
ejectment in the right of the vendor, 437.
Elegit
the "Estate by Elegit," a lien created by law, 4n.
INDEX.
668
Equity
will reform contract induced by fraud, 18.
will reform contract which has been altered by accident or mistake, 104, 202.
promisor may maintain bill in equity to compel creditor to sue
principal, 176.
equitable exoneration of sureties before payment, 488, 508.
400.
Estate
surety not discharged by failure of
against estate of principal, 132.
creditor
to
present
claim
Estoppel^
persons prohibited by statute from becoming promisors in suretyship are estopped from evading liability on the ground of such
prohibition,
12c.
20,
gestae,
669
INDEX.
Evidence Continued
to pages.)
view
surety, 303.
judgment
judgment
Execution
conflicting views as to whether execution and return of nulla bona
is necessary in establishing the non-collectibility as against
the principal, 75, 76.
release of levy of execution upon property of principal will discharge promisor, 138, 144.
return of execution without levy by the direction of the creditor,
will not discharge promisor, 142ii.
statutory provisions as to issuing execution against the principal
before proceeding against property of the creditor, 183.
default of sheriff in not paying over money collected in his second
term upon execution levied in first term, a liability upon the
first term sureties, 203.
as affecting right of action upon appeal bond, 307.
purchaser of land incumbered with judgment lien, by paying judgment, entitled to execution against other lands of judgment
debtor, 428.
costs of execution against promisor can not be recovered in action
for indemnity against principal, 513.
Eixecution of the Contract, 25a. (See Signature).
bond to administrator
376.
successive administration bonds are cumulative, 380.
sureties upon special bond in land sale proceeding, not liable for
defaults on general bond, 381.
bond given in ancillary administration not cumulative with bond
given in principal administration, 381.
when judgment or order of court is necessary to cause of action on
bond, 381.
383.
670
INDEX.
(The references are
to pages.)
of,
may
Duties for fadlure of which executors and administrators are liable, 375.
failure to administer estate in accordance with direction of the last
will and testament, 375.
chargeable for negligence and bad judgment in investing funds of
the estate, 376.
liable for failure to resist the allowance of unjust claims, 377.
refusal to pay allowed claims, 377.
failure to pay an heir his distributive share, 377.
failure to pay widow the amount allowed by court, 377.
failure to observe the proper order of preference in the distribution
of assets, 377.
payment in unequal proportions of claims of the same class, 377.
neglect of administrator to file account, held constructive conversion, 377.
failure to file inventory considered breach of bond, 377.
officer
before
irregular, 385.
Exoneration of iSnreties
may
seized,
363.
if
discharge bond
is
is
exonerated, 403.
671
INDEX.
(The references are
to pages.)
of luAr party,
363.
upon
Extension of Time
is a sufficient consideration to support a suretyship contract, 7.
agreement to extend time on main contract discliarges promisor who
115.
agreement for extension, not binding unless based upon a consideration, 115.
if
is
set
not
released. 116.
an extension, 118n.
giving collateral securities maturing at a later date doesi not operate to extend the time on the debt, 120.
giving collateral, a, good consideration for an agreement to extend,
121.
121,
256.
Failure of Consideration
672
INDEX.
(The references are
to pages.)
Continued
Failure of Consideration
is
199.
demnity, 515.
Favorite of the
Iiair
Forbearance to Sne
a
in
time, 129.
sufficient consideration to
Foreclosure
16.
Forfeiture
official
bonds,
if
Forgery
if
liability of
is forged,
136.
is
by fraud, 20.
suretyship is induced by fraud, equity will reform the contract, 18.
secret stipulations between creditor and principal affecting charactef of main contract, a fraud upon the promisor, 150.
if
INDEX.
673
to pages.)
FraudContinued
concealment without intent to deceive is fraudulent, if facts concealed are material, 152.
fraud will not be imputed because the creditor by reason of inat.
tention to his own affairs does not know of facts materially
affecting risk of promisor, 154, 157.
fraud can not be predicated upon a promise, only present or past
transactions the subject of misrepresentation, 102.
conflicting views as to whether a fraudulent concealment by the
principal of default prevents the operation of the statute of
limitations as to the surety, 228.
Fraudulent Intent
alterations of suretyship contract as affected by absence of fraudulent intent, 104.
promise to do an act without any intent of performance, not fraudulent,
162.
G
Gambling Debt^
surety paying, can not charge the principal in action for indemnity,
515.
General Guaranty
may
whom
it is
presented,
who
acts
upon
63.
a general guaranty
is
assignable, 63.
Grantor
of land svfbject to mortgage, in the situation of a surety, 448.
Guarantoi>
defined,
5.
5, 6n.
entitled to notice, 6.
irregular indorser presumed to be guarantor, 8n.
irregular indorsement after delivery generally results in the con-,
tract of a guarantor, 9, 10.
guarantor bound, although principal has no knowledge of the guar-
anty, 67.
not necessary that the guarantor derive any benefit from the contract,
68.
alterations of
INDEX.
674
to pages.)
of
pay-
who
acts
upon
it,
63.
63, 64.
and Federal
Guardian
stipulates by legal implication that he is c-ipable of managing the
affairs of his ward, 386.
liable for all property of the ward coming ':t his possession whether
derived from estate of ancestor or other sources, oS7.
liable on his bond for loans made upon in,- ufficient security, 387.
bond to guardian in representative capacity may be sued upon in
his individual or official capacity, 232.
Soope of liability upon, hand.
sureties liable for money received before the execution of bond, 387.
conversions before execution of bond considered liability against
sureties, 3S7.
special bond to secure
general bond, 387.
liable,
land sale
proceeds,
388.
H
Habeas Corpusduty
of
granting writ
is
ministerial, 292.
Holding Over
sureties of officer who holds over without bond, liable for conversions in second terra, 261.
bib
INDEX.
(The references are
to
pages.)
Ignorance of Lamr
>
when
known, ignorance
facts are
of
and
Illegal Acts
as a consideration, will avoid contract,
16.
main
the
contract, 20.
Implication'
obligations ir. suretyship can not be created by, 2, 17, 24.
holder of incomplete suretyship contract who receives it from the
promisor is authorized by implication to fill up the instrument,
102,
21,
195.
implied agency does not reach the amount of the penalty and such
blanks can not be filled except by express autliority, 161.
holder of suretyship contract fully written, has no implied authority to make alterations, 102, 103.
acceptance of note by creditor payable at a later date, raise implied agreement to extend time to maturity of note, 119.
giving collateral maturing at a later date, does not imply a contract of extension, 120.
Implied Contract
equity of contribution between co-suretioB not founded upon
implied contract, 474.
practical distinction between actions upon implied contract and actions arising from equitable basis, 477, 500.
no contract of indei&nity implied in favor of surety upon bail bond.
the
504.
of indemnity, applies only in favor of the one whose debt is paid, and
not in favor of others receiving benefit from the payment, 505,
no promise of indemnity implied where promisor signs without request of principal, 506.
Imprisonment
of principal in penitentiary for another offense while out on bail
will not exonerate his sureties, 399.
161.
promisor authorizes the principal to fill in such words as will express the understanding of the parties, the contract will be
binding, even though when completed it enlarges the liability
promisor
Incorporation^
of obligees, held
Increase of Salary
a,
upon bond,
214, 255.
676
INDEX.
(The references are
to pages.)
Indemnity^
giving time, not a defense to the surety
if
promisor
is fully
indem-
nified, 123.
who has
indemnity
in the
225.
officer to indemnify against consequences of an unlawful act already committed, is valid, 226.
Promisor's right against principal, 503.
rests upon implied contract, 503.
no implied contract in favor of surety upon a bail bond, 504.
no indemnity implied if consideration for suretyship is illegal, 505.
indemnity not implied, except against the one whose debt is can-
bond to public
celed, 505.
when the
677
INDEX.
(The references are
to pages.)
Indictment
where
bail
oflFense
and indictment a
different
no defense to sureties upon bail bond that no indictment was rendered against accused, 396.
Indorser
defined, 7.
Indorsee
subrogated to securities held by indorser, 462.
takes securities by subrogation subject to all prior equities whether
transfer before or after maturity, 463.
Infancy
incapacitates party from
making
12a.
when
ratified
by him after
contract, 137.
the defense of infancy can only be set up by the infant, 149.
one advancing money to infant for the purchase of necessaries, subrogated to the position of one who furnishes necessaries to infant, 469n.
Initials
if
memorandum
initials of the
Injunction
generally inoperative without bond, 337.
court of equity will require bond when not provided for by statute,
338.
678
INDEX.
(The references are to pages.)
Injunction:
Contmuedr-r-
depreciation of property withdrawn from the market by the injunction may be recovered, 347.
where money is detained, interest is recoverable, 347.
loss of time and wages, 347.
credits barred by statute of limitations pending the injunction,
proper subject of damages, 348.
mental strain and anxiety, not a subject of damages, 348.
value of the use and occupation of land as an element of damages,
time
348.
of defendant in procuring dissolution of injunction, not
ment of damage, 348.
an
ele-
INDEX.
(The references are
Continued
679
to pages.)
lujnnctioni
recoverable, 350.
is made to dissolve injunction until final hearing no
recovery for counsel fees, 34!).
services in appellate court recoverable, 350.
where no motion
Insalvency
in
a guaranty of
tablish
creditor not
tlie
cipal, 150.
may
409-.
payment
is
a consideration
680
INDEX.
to pages.)
InteTeatVontmiied
as an element in the measure
Xnterpretation
ambiguous words
if
possible,
19.
Intoxication^
promisor not released
who
Involnntary Suretyship
not an obligation imposed by implication, but merely the extension
of the privileges of suretvship to parties already bound, 2n, 24
25.
creditor not
bound except
for acts
relation, 24.
illustrative cases of suretyship
Irregnlar Indorser
defined, 7.
made,
7.
when
7, 8n, 10.
effect
upon
liability, 9.
'
INDEX.
(The references are
681
to pages.)
is
made must be
joined in an
common law
to enforce joint
180.
Joint Liability
if
promisor
is
jointly liable for the debt with the principal his eon-
180.
liable, 449.
Joint Obligors^
if
bond
is
joint
and
made defendants
several,
in the
Judicial Acts
'
may
is
judicial, 292.
act, 391.
Judicial
Bonds
682
INDEX.
(The references are
Judicial Bonds
Continued
to pages.)
682
INDEX.
("The references are to pages.)
want
of
jurisdiction
not a constructive
affirmance, 324.
where appellant
is
restrained by injunction
peal, 325.
376.
assets, 377.
neglect of administrator to file
sion, 377.
failure to
estate, 379.
all defaults in reference to land of decedent, although
the officer has no authority touching the land, 379.
if administrator is debtor of the estate he must account for the debt
on his bond, 379.
not liable for failure to account for collection of rents in the right
bond covers
when judgment
684
rNDEX.
(The references are
to pages.)
Judicial Bo-adBOontinued
sureties not estopped from showing judgment was obtained by fraud,
383.
bond
is liable, 388.
want
INDEX.
(The references are
685
to pages.)
final
360.
INDEX.
686
Judicial Bonds
Oontirmed
upon
sureties, 391.
bond invalid
687
INDEX.
(The references are
Judicial Officers
to pages.)
24.5.
officers,
375.
Judgment
creditor having judgment lien upon property of principal may suffer
same to become dormant without impairing rights against promisor,
142.
sureties, 383.
adjudication against guardian in settlement of his accounts, conclusive against his sureties, 389.
surety paying judgment, entitled to have an assignment of same to
himself, 434.
in action for
contribution, 498.
against surety, conclusive as to his right of contribution, 517.
JnTisdiction
promisor upon judicial bonds estopped from denying the jurisdiction of the. court, 20, 336, 344.
upon bonds of judicial officers acting without jurisdiction,
287.
distinction between acts done in excess of jurisdiction and acts done
in the absence of all jurisdiction, 289.
if judge in good faith determines he has jurisdiction, his decision,
though erroneous, is judicial, and no liability arises on his
bond, 290.
if jurisdiction to issue legal process is not apparent on the writ,
the burden of showing validity is on the officer serving the proliability
cess, 296.
no jurisdiction
688
INDEX.
(The references are to pages.)
Justification of Sureties
may
appeal
E
Knoirledge
.suretyship contracts without the knowlqige of the principal are
binding upon the promisor, 67.
immaterial whether the creditor has knowledge of the suretyship
at the time the relation arises, 125.
promise to pay deemed waiver of defense only when promise is made
promisor who signs as surety for a firm with knowledge that the
partnership name was signed to the main contract by a partner
without authority, will be bound, 150.
fraud of principal, without knowledge of creditor, not a defense to
promisor, 158.
false representation of third persons
will not release promisor, 159.
conditions imposed by promisor upon his contract without knowledge of creditor, not a defense, 200.
promisor who pays may be subrogated although his contract was
made without knowledge that creditor holds securities, 430.
surety paying debt without knowledge that creditor has released
securities may maintain action to recover back, 466.
Xialior
claims, 208n.
689
INDEX.
(The references are
to pages.)
Iiegislatnre
bonds of public officers as affected by subsequent acts of legislature
changing the duties of officers, 107a, 253.
extension of tenure of office by legislature, 256.
Ijetter of Credit (See Letters of Guaranty)
advances made upon a partnership letter of credit after dissolution of the firm will not bind the guarantor, even though the
creditor had no knovpledge of the dissolution, 66.
notice of default required to charge the guarantor of a letter of
credit, 91.
Letter of Becommendation
does not amount to a guaranty,
69.
Levy
release of levy on property of principal will discharge promisor,
138, 144, 465.
return of writ without levy, by direction of creditor, will not discharge promisor, 143n.
Lex Fori
statute of frauds in most jurisdictions effects merely the remedy
and the law of the Forum will be enforced, 33, 54.
Liability
commencement and duration
of liability
tiien^
creditor under no obligation to promisor to acquire lien
upon prop-
promisor, 142.
assignment by creditor of judgment lien against property of principal to one who purchases the property upon whieli lien rests
destroys the lien by merger and discharges promisor, 144.
payment of labor claims to prevent liens being perfected creates no
liability upon bond to "save liarmless from liens," 210.
bond to indemnify mortgagee against lien not available to lien,
holders, 211.
of judgment, not extinguished
442.
by payment
of
judgment by surety,
Life Estatepayment
of mortgage to protect life estate, subrogates the one paying to the rights of the mortgagee, 449.
Limitation of Actions
690
INDEX.
(The references are to pages.)
barred
against
public
officers
also
barred
against
their
sureties, 133.
Iiimited
Guaranty-
conflicting views as to whether a guaranty without express limitations is continuing or limited, 70.
is
lim-
M
Makei>
addition of
IMCalicions
of
prom-
105.
Frosecutlon
whether damages
for,
can
be.
Mark
>
memorandum by mark
of the party to
satisfies requirements of statute of frauds, 36.
signature to
be charged,
Married 'Women^
in
if
security, 449.
Measure of Damages
penalty of a bond fixes limit of recovery, but only so much can be
recovered as adequately measures the damage sustained, 218.
if no damages are. shown, nominal damages recoverable, 218.
upon bond to secure an annuity, is the amount of payments in default and not the penal sum named, 218n.
INDEX.
(The references are
691
to
pages.)
"Mercantile
Amendment
Iiav".^
or Note"
memorandum required by
"Memorandum
the
the statute of frauds is not the contract itself, 33, 34, 35.
contract to pay the debt of another need not be in writing if the
memorandum is written, 33.
statute does' not require the "memorandum" to be signed by both/
parties, 34.
not necessary that it appear all on one paper, .'!4.
the several papers constituting the memorandum must either refer
to each other or each be signed by the party to be charged, 34,
35.
Mergerassignment by creditor of judgment lien against property of. principal to one who purchases the property on which the lien rests,
destroys the lien by merger and discharges promisor, 144.
no merger against creditor, when surety purchases land upon which
his indemnity mortgage rests, 460.
Ministerial Acts
defined, 291.
judicial officer liable for failure to perform ministerial duty, 292.
duty of granting writ of habeas corpus, held ministerial, 292.
issuing order of arrest by justice of the peace, considered minis,
tcrial, 292.
failure of justice of the peace to issue execution, a breach of min^
isteriai duty, 292.
delivery of suretyship obligations by the principal without complying with conditions imposed by promisor, 159.
of surety in contributing to default of principal, a bar to right of
contribution, 485.
INDEX.
682
Misrepreaentatlon
promisor
may
avoid
liis
contract for a
fraudulent misrepresenta-
mortgage
where mortgage covers two pieces of property a conveyance of one
places the alienated piece in the situation of a surety, 127.
failure to file mortgage given to creditor by principal, resulting in
loss from intervening liens will discharge promisor, 141, 465.
failure of creditor to foreclose a mortgage held as additional security will not discharge promisor, 141.
one advancing money upon a defective mortgage, subrogated to
liens paid off with his advancement, 428.
surety paying debt secured by mortgage, subrogated to rights ol
mortgagee, 444.
cancellation of mortgage by creditor after payment by surety, effect upon right of subrogation, 444, 462.
rule as to tacking to mortgage the subsequent advances of the
creditor, 446.
indorser paying, subrogated to mortgage security held by creditor,
448.
wife paying mortgage, subrogated to lien and priority of the security, 449.
payment of mortgage to protect life estate, 449.
Mortgagee
must observe the
Mortgagorin the situation of a surety where property is sold subject to mortgage, 125, 448.
rule in the Federal courts ag to suretyship relation between mort-
126.
Municipalityview that a municipality has no power to require contractor to furnish bond conditional upon the payment of labor and material
claims, 208n.
693
INDEX.
(The references are to cages.)
N
Nameessential to the validity of a
obligee, 190.
name
bond that
it recite
the
name
of the
Negligence
of creditor resulting in loss of securities will discharge promisor,
140.
failure to file mortgage given creditor by principal is negligence
and will discharge promisor, 141.
negligence of officers of the law in executing legal process, considered as negligence of the creditor, 144.
fraud will not be imputed because the creditor by reason of negligence does not know of facts materially affecting the risk of the
promisor, 154.
public officers liable upon their bond for negligence, 265.
sureties of public officers not released by the negligence of other
officials, 270.
administrator chargeable with negligence in investing trust funds,
376.
'
Negotiable Instruments
transfer of, carries with it a guaranty of the paper without special
assignment of the guaranty, 63.
extension of time as a defense under Negotiable Instrument Codes.
128.
Notary Public^
a public officer, 241.
sureties liable if notary uses his office for a wrongful purpose, 294.
liable on his bond for negligent performance of duty, 294.
sureties liable although officer acts without any intent to violate
his duty, 294.
is
when a guarantor
is
is required. 90.
entitled to notice of advancement
made under
694
INDEX.
(The references are
to pages.)
Novatioii
promise to pay the debt of another based upon a special benefit to
the promisor is a novation and not within the statute of frauds,
45, 48.
if
if
may have
new contract
is
valid and
action, 136,
Oath of Oface
a distinguishing characteristic
of
public
office,
240.
Oblige
not necessary that the
the bond, 191.
Offer to
name of the
Pay-
695
INDEX.
(The references are
to pages.)
Approval
of sureties, 246.
disability of sureties, 246.
property qualifications, 247.
approval is a judicial act, 247.
presumed from the acceptance of bond, 247.
failure to approve, not a defense, 24S.
Scope of
liability.
is given for a term of office it will cover defaults before delivery of bond, where the officer fails to make seasonable delivery, 252.
will not cover extension of tenure of office Ijy act of legislature, 256.
will include the entire term and such further time as is necessary
to install the successor in office, 2S57.
liable for negligence and want of capacity, 264.
not liable for er.-ors of judgment where proper effort i.s made to
ascertain the duty to be performed, 264.
liable to any one damaged by failure to perform ministerial duties,
264.
not protected by advice of counsel, 265.
liable for interest collected upon public funds, 265.
cases holding the officer not liable to account for interest on public funds, 268.
not liable for failure of officer to perform his contracts with persons; dealing with him in his official capacity, 269.
not liable for failure to account for money received outside the
scope of the office, 271.
acts performed under authority of a superior officer, but outside
the scope of office, 273.
not liable for failure to account for monev borrowe<J without authority, 274.
liable for loss of public raonc'/ by failure of bank used as public
depository, 280.
loss of public money by theft or robbery, 284.
sureties not liable for loss resulting from irresistible superhuman
force, 286.
if
bond
Defenses of sureties.
defenses growing out of contract relations cannot generally be interposed, 240.
sureties discharged by alterations in the bond to which they do not
consent 252.
alterations beneficial to surety are a defense, 252.
immaterial alterations not a defense, 252.
addition of new name as surety not a material alteration, 253.
mutilation of the bond by accident not a defense, 253.
an increase or diminution of the compensation of public officers
not a defense, 255.
foncealment of previous misconduct not a defense, 258.
696
INDEX.
(The references are
Official BoiLdg
to pages.)
Continued
sureties not released by the negligence or misconduct of other
officials, 270.
sureties may stand upon the exact term of the bond, 295
sheriflf or constable acting within the terms of the mandate of the
court, fully protected if court has jurisdiction, 29.3.
if process does not disclose irregularity, the officer is protected in
the service even though he has knowledge of irregularity, 295.
public officers not liable for non-performance of duty, if prevented
by circumsta:nces beyond their control from exercising theii
functions, 296.
imposing sentence of imprisonment where the law only gives authority to impose fines, 288.
no
if
bond, 290.
liable for failure to
INDEX.
697
Official
to pages.)
BondsContinued
Original Promisor^
a promise for the benefit of one made upon the credit of two, makes
both original promisors, 43.
Parol Evidence
competent to show the character in which accommodation parties
sign negotiable instruments,
8,
481, 502.
may
accommodation indorsement
698
INDEX.
(The references are
to pages.)
may
be shown by pirol,
204.
Parties to Actions
if principal and promisor are both
made must
join as plaintiffs
is
by separate
ac-
tions,
233.
if bond is joint and several anyone or more of the obligors may
be joined as defendants, 234.
if obligors severally liable they can not be joined except under Code
provisions, 234.
joinder of defendants were one co-obligor is deceased, 234.
sureties upon successive bonds may be joined in one action as defendants, 234.
appeal bond, as affected by the addition of new party in the Appellate Court, 324.
must be under no
4.
disability, 12.
may become a promisor in suretyship if the transaction is in the regular course of its business, 12a.
a partnership can become a promisor in suretyship by its firm
corporation
name, 12b.
the addition of new party as a principal maker as a defense to
the promisor, 105.
substitution of new parties is a material alteration of contractual
relations and discharges promisor, 109.
retiring partner,
G99
INDEX.
(The references are
to pages.)
if
7*ast
Transaction
not a sufficient consideration to support a suretyship.
16,
199.
guaranty
of collectibil-
ity,' 6n.
made by
135.
135.
507.
payment, 509.
view that non-negotiable note
is
Penalty
penalty of a bond is left blank the omission can not be supplied
without the consent of the obligor, 22, 191.
if penalty named is greater than is required by law, the surety not
bound for the excess, 23, 343.
can not be enlarged by a contemporaneous agreement, 220.
official bond with penalty in excess of statutory requirement, valid
to the amount of required penalty. 242.
requirements of the statute deemed waived as to amount of penalty
where the parties themselves fix the penalty, 317.
if
Prrsonal Suretyshipdefined,
3.
3.
INDEX.
700
Pleading
upon contract in suretyship need not aver
that such contract is in writing, as a compliance with the
statute of frauds is a matter of proof and not of pleading, 52.
demurrer to pleading will not raise the question of a non-com,
pliance with the statute of frauds, except where a Verbal contract is affirmatively pleaded, 32.
statute of frauds not available as a defense to a suretyship contract
unless pleaded, 53.
the question of a non-compliance with tlie statute of frauds can not
be put into the record by a request to charge, 53.
defendant may plead the statute of frauds, although admitting in
his answer the making of the contract, 53.
petition or declaration
Premium
as affecting the contract of the corporate surety, 410.
Presumption of Fact
irregular indorser presumed to be guarantor, 8n.
irregular indorser presumed to be surety, 8n.
presumption of irregvilar indorsement may generally be rebutted,
8.
presumption as affected by the fact being shown whether the indorsement was before or after delivery, 10.
presumption as to contract of irregular indorser signing before
delivery, 11.
Principal
one for whose account the contract was made, 4.
guaranty for one principal can not be enforced if advancements are
made to more than one, 65.
guaranty for joint principals not held for advancements made to
one, 65.
is absolute, not necessary to first pursue and exhaust
the principal, 73.
fraud practiced by the principal on the promisor without knowledge of the creditor will not discharge the promi^r, 15, 158.
necessaj-y for principal to sign bond where obligation is joint, 191.
not necessary for principal to sign if principal is bound without
reference to bond, 191.
change in amount of compensation of principal, not a material
if
guaranty
alteration of
main
contract, 214.
signature of principal to
official
248.
701
INDEX.
(The references are
to pages.)
Private Obligations
distinguished from
official
Prohibition by Statute
i(See
duty, 189.
Promise
meaning
162.
Promisordefined, 4.
Promissory Note
execution of note for usurious interest, a good consideration for
extension of time to principal, 118n.
execution and delivery of new note payable at a, later date, extends
time of original obligation and releases promisor, 119.
giving note for past due obligation, not an extension of time, 120.
note
given in renewal is invalid, the old note, though surrendered,
if
is revived,
136.
of principal to a creditor is a payment which releases
promisor, 227.
acceptance by distributee of the individual note of administrator
or guardian releases the sureties, 3S4, 3S9.
payment by surety with note gives immediate right of contribution
from co-surety, 487.
contribution between parties to bills and notes, 501.
acceptance by creditor of negotiable note of promisor, equivalent to
payment, 510.
when note
Public
Money
26'5.
lost
lost
of officer, 280.
duty of public
702
INDEX.
(The references are to pages.)
Pnlilic Officers
Continued
sureties
officer,
255.
cases holding the officer not liable to account for interest on public
funds, 268.
duty of, to act under unconstitutional law, 273.
trespass and other wrongs committed by sheriff or constable colore
officii; 274, 279.
liable for loss of public funds by failure of bank used as public
depository, 280.
loss of public money by theft or robbery, 284.
sureties not liable for loss resulting from irresistible superhuman
force, 286.
liability of judicial officers upon their official bonds, 287, 291.
government officers not liable for acts of deputies, 294.
not liable for non-performance 6t duty if prevented by circumstances beyond their control from exercising their functions,
296.
refuse to act under unconstitutional statutes, 296.
the due performance of official duty will be presumed, 297.
no presumption that officer has authority to do what he has undertaken, 298.
may
Pnblio Policy
amount paid by surety is conclusive against prinvoid as against public policy, 421.
agreements to appoint deputies, void as against public policy, 245.
against public policy to imply a promise of indemnity in favor ot
surety upon bail bond, 504.
stipulation that
cipal,
703
INDEX.
(The references are
to pages.)
Qualification of Sureties
upon bonds of public ofScers, 246.
as to residence within the jurisdiction where bond
is filed,
247, 316.
R
Ratification)
suretyship contract by infant becomes valid only when ratified by
him after reaching maturity, 12a.
an unauthorized signing of a firm name to a suretyship contract
will bind the partnership if ratified by the firm, 12b.
if signature to a suretyship engagement is affixed by an unauthorized agency, a subsequent ratification will validate the trans action, 36.
Seal iSnretyship
defined,
3.
of real suretyship, 4.
Re-Arrest
of accused after escape exonerates surety
upon
Bond
Receiver
considered the "hand of the Court," 390.
failure to perform the order of the Court, a breach of bond, 390.
order fixiug the amount due, conclusive upon sureties, 391.
sureties of, may follow and subject trust funds in the hands of
third person, 435.
Recording Mortgage
failure of creditor to record
will discharge promisor,
142.
704
INDEX.
(The references are
to pages.)
Reformation of Contract
if
contract
is
equity, 18.
alterations in contract resulting
in equity, 104.
it
will be reformed in
Release
whatever releases principal will release promisor, 146.
release of co-promisor by the creditor, 170, 498.
release of co-promisor reserving rights against remaining promisors,
172.
Replevin
purpose of replevin action, 367.
Court has no authority to issue writ without bond, 367.
conditions of bonds in replevin, 368.
bond valid, although not conforming to statutory requirements, 368.
the officer serving the writ made the judge of the sufficiency of the
bond, 368.
bond can not be enforced if any essential element of contractual
relation wanting, 368.
bond not enforceable if the court has no jurisdiction of the subject matter, 369.
if the law under which action is brought has been
repealed, 369.
no action can be maintained upon bond until the case is finally
determined, 370.
sureties upon bond concluded by final order in replevin action, 370-
bond invalid
705
INDEX.
(The references are
to pages.)
BoplevinCon.tiMe(i
judgment will not be enlarged, by implication, to include findings not actually entered, 37 On.
sureties bound by judgment, although entered by confession or consent of parties, 371.
sureties not permitted to show that the property taken belonged
to a stranger, 371.
Breach of iond, 369.
failure to prosecute without delay, 369.
voluntary dismissal of action, 369.
dismissal by court for want of jurisdiction, 369.
dismissal by operation of law or because of the death of party not
a breach, 369.
dismissal for defect of process, 370.
dismissal without a finding as to title, for failure of proof, 370.
Defenses in action on bond, 373.
material alteration of the bond, 373.
dismissal of action without consent of the defendant, 373.
change in the defendants by substitution of new parties, 374.
defenses in mitigation of damages, 374.
the increase in value of property during detention by reason of the
addition of labor to it, set off in mitigation of damages, 374.
no defense that property was destroyed by unavoidable casualty
final
Measure
of
371.
Request to Sue
failure of creditor to sue principal when requested, not a defense,
173.
statutory provisions as to suit by creditor on request of promisor,
175.'
Hes Adjndicata
judgment against creditor
in
action
official
bond
is
surety
principal, 383.
adjudication
against
a guardian
conclusive
against his
sureties,
389.
Bes Gestae
contemporaneous declaration of principal, admissible against surety
as part of the
706
INDEX.
(The references are to pages.)
Reservation, of Remedies
Residence of Sureties
statutory requirements, 247, 316.
Restoration
when
liability
of surety
Retrospective Contracts^
guaranty will not be given retrospective effect, 66.
bonds not retroactive unless the instrument so stipulates, 204, 259.
ReTival of Obligation
if
is
Revocation
executory contract of guaranty
94,
it
may -be
revoked,
184.
184.
Robbery
sureties of public officers for loss of public funds by
theft or robbery, 284.
not liable for robbery by a public enemy, 287.
liability of
s
Salary (See Compensation)
TOT
INDEX.
(The references are
to pages.)
Set-Off
principal's right of set-off against the creditor as a defense to the
surety, 178, 466.
insolvency of the creditor as a basis of equitable set-off in favor
of promisor, 179, 180.
equitable set-off, in favor of promisor, in tlie right of principal not
allovped, except when principal and promisor E.re both parties
to the action, 179.
where all parties are before the court the right of equitable set-off
accrues to the promisor, 181, 466.
in execution or attachments,
264.
trespass,
if
surety not bound upon a joint bond unless the principal signs, 191,
249.
708
INDEX.
(The references are
Signature Continued
to pages.)
under
if
192.
seal,
name
of principal to
official
Specialty
a bond
is a specialty, 190.
payment by surety of a
specialty
debt
makes
of
the surety a
Special Agency
doctrine of special agency as applied to promisor who signs upon
condition and entrusts delivery to principal, 160, 200.
Special Bonds
sureties upon, not liable for defaults in the line of the general
of an officer who has given a general bond, 257, 387.
Special
duty
Guaranty
Statute of Frauds
709
INDEX.
(The references are
Statute of FrsLjidsOontmued
to pages.)
is
rttat.
ute,
37.
contract of indemnity is
promisor
contract. 53.
the law of the forum where the action is brought will prevail over
the law of the place where the contract is made in construing
the statute, 54.
verbal conditions upon contracts excluded by the statute, 164.
contract of corporate surety is within the statute, 412.
710
INDEX.
(The references are
to pages.)
persons prohibited by statute from becoming promisors in suretyship will be bound notwithstanding the prohibition, 12c, 316.
statutory provisions regulating form and requisites of bonds are
directory merely and the omission does not invalidate the contract, 22, 23, 315, 353, 355.
failure to file bond within time prescribed by statute not a defense
to the surety, 23.
where penalty named is greater than required by statute the surety
not bound for the excess, 23.
as to whether the consideration of a. suretyship contract need be
expressed in writing, 30, 31, 32.
Code provisions abrogating the common law rule as to the release
of the estate of a deceased co-promisor in suretyship, 93n.
promisor upon bond of public officers discharged by subsequent
statutes changing the duties of the officer or extending time of
settlements, 107a, 121.
sureties may waive the provisions of statute intended for their
benefit, 165.
statutory provisions as to release of one of several co-promisors,
173.
provisions as to notice by promisor to creditor to sue the principal,
175.
as to the right to make both principal and promisor parties to the
action of the creditor, 180.
provisions requiring execution against the principal before proceeding against property of promisor, 183.
legislative acts abolishing and modifying the effect of seals, 193n.
Stay of Execution
distinction between stay of execution and appeal, 312.
use of the term supersedeas interchangeably with appeal, 312.
corporation signing as surety, not estopped from showing the act
to be ultra vires, 319.
Statutory requirements as to stay of execution, 314.
711
INDEX.
(The references are
to pages.)
jurisdic-
712
INDEX.
(The references are
to pages.)
case, not
where new trial is granted and same judgment rendered upon retrial upon which error is prosecuted, the first bond remains
liable,
336.
joint action
may
StockHoIders
who pay assessments
ties
483.
Stolen Securities
Stranger
mutilation
of suretyship
liability of promisor,
contract
affect
104, 215.
a.
Subrogation
definition, 426.
payment
713
INDEX.
(The references are to pages.)
Subrogation Gontinii,ed
tion, 438.
surety paying judgment subrogated to the judgment lien of creditor upoii property of principal, 440.
judgment lien attaches in favor of promisor from the date of the
judgment against principal, 442.
surety is subrogated to creditors' rights against co-sureties, 443.
promisor who pays subrogated to mortgage security held by creditor and may have foreclosure in his own name, 444.
equity of surety paying debt secured by mortgage, superior to subsequent lien of creditor on the property, 445.
rule as to "tacking to mortgage," its effect upon subrogation, 445.
view that the equity of subrogation is superior to lien of creditor for subsequent advances, 446.
applies to one in the situation of a surety, 447.
retiring partner paying firm debt, subrogated to firm securities
held by creditor, 448.
vendee of one of two pieces of land covered by mortgage who pays
the debt, subrogated to creditors' right upon the mortgage
against the other piece, 448.
vendor of land sold subject to mortgage, who pays the debt, subrogated to creditors' rights under mortgage, 448.
regular indorser, subrogated to all the remedies of the holder
against the maker, 448.
indorser entitled to be subrogated to mortgage security held by
creditor, 448.
714
INDEX.
(The references are to pages.)
Snhrosatio-u Continued.
one co-surety
liolds
INDEX.
(The references are
715
lo pages.)
Sncoessive Bonds
all sureties upon successive bonds may be ioined
in
335.
328.
5.
paying debt of another, entitled to have securities held by creditor assigned to him, 429, 434.
paying a judgment, entitled to have it assigned to himself, 434.
paying debt, subrogated to right of creditor to subject assets by
creditors' bill or action to set aside fraudulent conveyance, 438.
paying debt of another, entitled to the priority held bv the creditor, 438.
fees,
entitled
to
439, 443.
foreclose in his own name mortgage security held by
creditor, 444.
subrogation, as applied to one in the situation of a surety, 447, 448.
entitled to pro rata share of dividend derived from assets of principal, 450.
entitled to dividend on entire claim against estate of deceased cosurety, 451.
holding indemnity from the principal, must account for it to cosurety, 453.
need not account for indemnity furnished by a stranger, 460.
subrogation between successive sureties, 454.
surety paying debt without knowledge that creditor has released
securities may maintain action to recover back, 406.
when surety will be subrogated to the principal's right of set-off,
178, 466.
473.
shown
by parol, 471.
contribution between persons in the situation of a surety, 482.
one becoming surety at request of co-surety, entitled to contribution, 483.
716
INDEX.
Surety Continued
to pages.'J
tribution, 496.
to prevent default, can not recover contribution, 496.
amount recoverable by surety upon implied right of indemnity, 511.
when surety can not recover from principal for payment of claims
for which tlie principal was not liable, 513.
who pays, may have indemnity although payment could not have
been enforced, 516.
judgment against surety conclusive as to his right of indemnity,
517.
who pays
NegotiaMe instruments.
irregular indorser presumed to be a surety,
8n.
term, 261.
effect of approval of accounts at close of first term, as to the liability of the second term sureties, 262.
liability as affected by the fact that the wrongful act of the oificer
is partly in one term and partly in another, 263.
liable for interest collected upon public funds, 265.
cases holding officer not liable to account for interest on publio
funds, 268.
not liable for defaults of principal in not performing contracts with
persons dealing with him in his official capacity, 269.
not released by the negligence and misconduct of other officials,
270.
not liable for failure of public officer to account for money received outside the scope of his office, 271.
not liable f6r failure of officer to account for money borrowed with^
out authority, 274.
liability of sureties of sheriff or constable for trespass and other
wrongs committed colore officii, 274, 270.
liable for loss of public money by failure of bank, 280.
loss of public money by theft or robbery, 284.
sureties of public officers not liable for loss resulting from irresistible superhuman force, 286.
judicial officers, 287, 291.
Judicial londs.
judicial bond valid though not conforming to the law as to the
number of sureties, 317, 353.
717
INDEX.
(The references are
to pages.)
SiiTei7 Continued
not bound, where court acquires no jurisdiction in attachment by
reason of defective affidavit, 353.
in bond to discharge attachment, concluded by judgment against
principal, 361.
upon attachment bonds, estopped from questioning the regularity
of the proceedings, 362.
exoneration of sureties in attachment proceedings, 363.
judgment against plaintiff in replevin dismissing action or finding
right of property in defendant, conclusive against sureties, 370.
judgment by confession, in replevin binds sureties, 371.
Administration ionds.
concluded by judgment against principal, 383.
acceptance by distributee of individual note of administrator or
guardian, releases surety, 384, 389.
Surety of Public
Bonds)
Officers
(See
Public
and
Official
sureties for
the later
Officers
sureties
sureties,
defined,
1.
embraces
1.
Suretyship Defenses
duress of principal as a defense, 12<i, 148.
failure to give notice of acceptance or default to guarantor, 91.
failure to comply with restrictive conditions upon letter of credit
as to amount advanced will release guarantor, 109.
substitution of new parties, 109.
enlargement of the business of employer increasing the risk as
defense to promisor. 113.
delay of creditor in pursuing remedies against principal, not -a defense to promisor, 131.
payment or other satisfaction as a discharge of the promisor, 133.
payment in part discharges promisor pro tanto, 134.
refusal to accept tender by principal discbarges promisor, 13.5.
distinction between tender and offer to pay, 135.
taking of additional security not a defense to promisor, 135.
liability against promisor revived if payment or substituted security is void, 135.
whatever releases principal will release promisor, 146.
release of principal by operation of law, 147.
where release of principal bv operation of law is without fault or
procurement of the creditor, 149.
promisor may have judgment against him set aside if creditor fails
to recover in subsequent action against principal, 148.
coverture, insanity, infancy or other incapacity of principal, not
available as defense to the promisor, 149.
the false representation of third persons, whereby the promisor ja
induced to sign, not a, defense, 159.
INDEX.
718
seal, 193.
alterations in bond as defense to surety, 214.
to actions upon appeal or stay bonds, 335.
to .actions upon injunction bonds, 344.
to actions upon replevin bonds, 373.
to actions upon administration bonds, 384.
to actions upon bail' bonds, 395.
Alteration of the principal contract, 98, 211.
which adds to or takes away some obligation already imposed, 98.
promisor discharged even though alterations are beneficial, lOOn,
110.
same
itor,
made by
debtor or cred-
loa
in-
104.
immaterial alterations,
tent,
addition of
a new
105.
surety upon bond of puhlic officer discharged by subsequent legislation changing duties of the office, 107a.
promisor discharged by alterations as to amount to be advanced
by the creditor, 108.
failure to perform contract, not an alteration, 108.
Conditional contracts of suretyship, 163.
promisor not bound if conditions are not complied with, 163.
conditions precedent need not be in writing, 163.
conditions relating to the performance of the contract can not be
shown by
parol,
164.
conditions imposed by law need not be set out in the contract, 165.
waiver by the beneficiary of conditions imposed by law, 165.
the consideration of contract is not a condition and may be shown
by
parol, 166.
payment of
INDEX.
(The references are
719
to pages.)
is
an ex-
tension, 119n.
will not be implied from the acceptance of collateral maturing at
later date, 120.
extension of time by act of legislature, 121.
extension to surety eff'ect upon co-surety, 122, 172.
as a defense to persons in the situation of a surety, 124.
b;^ appeal or continuance of judicial proceedings, 127.
129.
152.
not a defense
if
known
to the cred-
itor, 154.
creditor, J 58.
creditor not bound to investigate as to whether promisor has been
deceived, 159.
delivering suretyship obligations without complying with conditions, 159.
the doctrine of special agency as applied to delivery without complying with conditions, 160.
circumstances amounting to constructive notice of conditions, 160.
Release of promisor by creditor, 168.
may be shown by parol, 168.
creditor who has declared to promisor that contract is at an end,
estopped from enforcing it, 168.
INDEX.
720
_j.
i,his
release of co-surety discharges remaining surety to tlie extent of
498.
right in contribution, 170,
same, whether release voluntary or by operation of law, 171.
release of co-promisor, reserving rights against remaining promisor, not a defense, 172.
statutory provisions as to release of one of several co-promisors,
4.
173.
'^
139.
same
eflfeet
185.
Tacking Mortgages
rule as to tacking
creditor, 446.
Telegram
to, upon the blanks used by the sender is a sufBcient
compliance with the statute of frauds as to a "memorandum"
signed by the party to be charged, 36.
signature
Tender
refusal to accept tender of payment made by principal will release
promisor, 135.
distinction between tender and offer of payment, 135.
Term
of Court
stipulation in bail
definite, 392.
bond
to
Term
bail, 393.
where default of
and partly in another, 263.
liability of sureties
officer
is
274.
committed colore
officii,
INDEX.
721
to
pages.)
Trustcreditor invested with trust whenever property of the debtior applicable to the debt is placed in his control, 138.
Trust Funds-
may
be followed and subjected in the ri;,dit of the creditor liv prompaying the debt of anotlier, 437.
subrogation not available in following trust funds wliere onfe receiving had no knowledge uf the trust character, 4;J7n.
isor
u
Ultra Virespromisor will be bound
when
(/nsoundness of Mind
promisor must lie of ?io\ind mind,
12, 24(i.
Usury
piiymont of usurious interest in advance as a consideration for an
exten.sion of time to the principal, 117n, 118.
llie execution of a note for usurious interest, a good consideration
if
Vendee
when
Vendorill
Vendor's Lien
suii'ly for
Venue,
Change
vvliere
to, 437.
of
who pays
tlie
debt of another as
4fi7.
46S.
w
Wager
(See
Gambling Debt)
Waiver
of tlie defense of "cxtrnsion of time." 130.
is
INDEX.
722
to pages.)
WaiverContinued
promise to pay deemed waiver of defense only when promise
with knowledge of defense, 130.
sureties may waive provisions of statute intended for their
is
wade
benefit,
165.
damages, 340.
of the benefits of subrogation, 472.
involuntary waiver by delay in enforcing rights, 472.
subrogation not waived by acceptance of other security
from the
debtor, 473.
Wastecreditor permitting security in his hands to be wasted, to the extent of the loss, releases promisor, 142.
Widoir
surety of administration officer liable for failure of
pay to widow amount allowed by court. 377.
principal to
Women)
W^riting
contract of suretyship must be in writing, 2.
as to whether the statute of frauds lequires the consideration to
be expressed in writing, 2!), 30.
statute of frauds does not require the entire contract to be in writing, but merely a "memorandum" of it, 33.
rtot necessary that the authority of an agent to execute a suretyship contract be in writing. 24. 36.
contract of indemnity need not be in writing, 37.
waiver of defense to suretyship need not be in writing, 130.
,
-.
KF
Author
10t)-5
S7Q 1922
Vol.
Title