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III
UNIVERSITY
OF CALIFORNIA
LOS ANGELES
SCHOOL OF LAW
LIBRARY
Ci.-jC^'-X^
JL TREi^TlSE
ON
THE LAW
Suretyship and Guaranty
By
DARIUS H. PIXGREY, LL. D.,
Author of Treatises on Chattel Mortgages, Real Estate Mortgages and
Real Property.
SECOND EDITION
By HOWARD C. JOYCE.
Albany, N. Y.,
MATTHEW BENDER & 00.
1913.
Copyright, 1900,
By DARIUS H. PINGREY
Copyright, 1913,
By MATTHEW BENDER & CO.
Jc-i
^~21-S^1
1^
I
I
PREFACE.
In the preparation of this edition it has been the purpose of
the editor to follow out the general plan and scope of the first
edition of the work which was published in 1901. Since that
date there has been much litigation involving questions as to con-
tracts of suretyship and guaranty. Also, while these contracts
were formerly assumed by individuals, such obligations are at the
present time to a great extent undertaken by corporations which,
have been organized for the express purpose of securing, or it
may be said insuring, the performance of duties and obligations;
by others. This new phase of the subject has been fully treated
by the editor, both as regards the contract so entered into and as
affected by legislative act. All cases bearing upon the general
principles of the subject decided since the first edition have, it is
believed, been included. Also the notes have been greatly enlarged,
both by decisions prior to 1901, which were not cited in the first
editions and by appropriate illustrations of the application of gen-
eral rules.
Another feature which is of importance at the present time is
xhat relating to sureties for the performance of building contracts.
This subject the editor has endeavored to treat fully and yet in
the same concise and thorough manner which met with so favor-
able approval in the first edition.
It is with the sincere hope that the new edition will merit the
same cordial reception accorded to the first that it is respectfully
submitted. H, C. J.
New York, January 2, 1913.
PREFACE.
It lias been the endeavor in writing this work to present a
systematic and concise treatise on the subject of Suretyship
and Guaranty. To do this the early and leading cases have
been used to show the elementary and indisputable principles of
the subject. The other cases, including the very latest, have
been cited to show the application of these principles in the
interpretation of the law of to-day, which is the most useful
because the most needed.
It has been the aim to state the principles of law as settled
by the weight of authority, in a clear and succinct manner, with-
out entering upon a protracted philosophical discussion, or mar-
shaling in the text an array of conflicting decisions, except as to
the established law of the different States.
A more elaborate work could have been constructed with less
time and labor. Definitions have been formulated and princi-
ples stated, it is hoped, with perspicuity and accuracy. Many
cases have been cited which may be used as a basis of an ex-
haustive examination of the subject when a brief is desired.
The student will find that this treatise will serve him in the
law school and then in his practice ; having studied the work, he
will know where to find the law, a knowledge which distinguishes
every great lawyer.
In conclusion it is proper to say that this work has been
prepared by the author's personal labor.
Dakius H. Pingrey.
Bloomington, III, Jan. 21, 1901.
TABLE OF CONTENTS.
CHAPTER I.
i^ATURE AND EFFECT.
Section i. Principal.
2. Surety.
2a. Rights of Surety to Indemnity.
2b. Contract to Pay Another to Act as Surety.
3. Co-surety.
3a. Terms " Guarantor " and " Surety " Generally.
4. Distinction between Suretyship and Guaranty.
5. How Created.
6. Nature of Surety's Liability.
7. Ignorance of Co-surety's Obligation.
8. Substitution of Sureties.
9. Successive Bonds.
10. Agreement as to Liability Among Sureties.
11. Grantee of Mortgaged Premises.
12. Rights of Mortgagee — In Equity or in Law.
13. The Mortgagee Must Assent.
14. Accommodation Indorser.
15. The Acceptor of Drafts.
16. Indorser of Notes.
17. Notes Payable to Maker.
18. Pledging or Mortgaging Property to Secure Debt of Another
Person.
19. Mortgaging of Wife's Separate Property to Secure the Debts
of Her Husband.
20. Dissolution of Partnership — One or More Partners Assuming
Partnership Debts.
21. Partners or Principals Agreeing Among Themselves — Effect
on Creditors' Rights.
22. Joint Contract.
23. Joint Executors and Administrators.
■CHAPTER II.
THE PARTIES.
Section 24. Infants.
25. Insane Persons.
26. Partnership.
27. Attorneys-at-Law — Sureties for Their Clients — Statutory
Prohibitions.
(v)
VI
Table of Contents.
Section 28. Corporations.
29. National Banks,
30. Ultra Vires Contracts.
31. Implied Power to Become Surety.
32. Principal Under Duress.
33. Non-residents.
34. Surety and Guaranty Companies Generally.
CHAPTER III.
EXECUTION OF THE CONTRACT.
Secjtion 35. Consideration.
36. Indorsing Note Before and After Execution.
37. Surrender of Old Note for New Note.
38. The Consideration Must be Legal.
39. Concurrent Contracts.
40. Surety's Promise Being the Inducement.
41. Executed Contract.
42. Extension of Time — Promise of Third Person to Pay.
43. Agreement to Forbear for an Indefinite Time.
44. An Agreement Must be Made to Forbear.
45. Offer to Become Surety for Another.
46. Extension of Time — Agreement to Pay Interest.
47. Both Parties Must be Bound.
48. Extension of Time by Paying Interest — Contrary Doctrine.
48a. Place of Signature.
49. Delivery of Contract.
50. Delivery in Escrow.
51. Wrongful Delivery by Principal.
52. Imperfect Instrument.
53. Surety's Name Not Appearing in Body of the Instrument.
54. Principal Not Signing.
55. Alteration of the Instrument.
56. Filling Blanks — As to Surety's Liability.
57 Negotiable Notes.
58. Surety Signing as Principal.
59. Estoppel of Surety to Deny Recitals in the Instrument.
59a. Estoppel to Deny Validity.
60. Denying Valid Appointment of Principal.
61. Sureties Cannot Deny the Incorporation of Corporate Bodies
with Whom Their Principal Deals.
62. Denying Court's Jurisdiction.
63. Attacking Bond in Collateral Proceedings.
64. Relations After Judgment.
65. Effect of Judgment on Surety.
Table of Contents. vii
CHAPTER IV.
SCOPE OF surety's CONTRACT..
Section 66. Extent of Surety's Contract..
67. Construction of Contract — At Law.
67a. Where Bond Makes a Contract a Part Thereof.
67b. Statutory Bond — Estoppel.
68. Construction of Contract — In Equity.
69. Liability for Past Defaults of Principal.
70. Liability Limited to a Fixed Time.
71. Time Limited to a Subsequent Period.
72. Employment or Condition Changed by Employer or by the
Legislature.
73. Sureties in Legal Proceedings — Order of Liability.
74. Only Liable for Penalty of Bond.
75. Misappropriation of Funds.
76. Increase of Funds.
77. Surety May Limit His Liability.
78. Forged Signatures.
79. Additional Employment.
80. Act of Principal Not in Line of His Business.
81. Becoming Surety for Payment of Rent.
82. Tenant Holding Over.
83. Principal Associating with Others.
84. Several Principals — Partnership.
85. Death of Surety.
86. Construing a Joint Obligation as Several.
87. Revoking Suretyship.
88. Default of Principal.
89. Revival of Surety's Liability.
90. Part Payment by One of Several and Joint Debtora.
91. Absence of Principal from State.
92. Disability of Principal.
93. Conflict of Laws.
CHAPTER V.
DISCHARGE OF SURETY.
Section 93a. Discharge of Surety Generally.
94. Payment of Debt Discharges Surety.
95. What Acts of Principal Will Discharge the Surety After
Judgment.
96. Legality of Payment.
97. Application of Payments.
98. Application by Law.
99. Note Payable to a Bank — Application of Debtor's Deposit.
100. Change in the Principal Contract.
viii Table of Contents.
Section lOl. Where the Surety is Not Discharged by Change of Contract,
102. Alteration of the Instrument.
103. Material Alteration of Instrument.
104. Commercial Instruments.
105. Change of Date.
106. Alteration of Amount.
107. Alteration of the Rate of Interest.
108. Changing the Place of Payment.
109. Destroying the Identity of the Contract.
110. Addition of Surety to a Note.
111. Changing the Contract of a Lease Signed by Surety.
112. Building Contracts.
112a. Building Contracts — Surety Released by Change of.
112b. Building Contracts — Where Change Authorized.
112c. Building Contracts — Permissive and Immaterial Deviations.
112d. Building Contracts — Payment — Certificate of Architect or
Other Person.
112e. Building Contracts — Payment Generally.
112f. Building Contracts — Acceptance by Architect — Certificate.
113. Extension of Time of Payment.
113a. Extension of Time of Payment — Where Instrument Pro-
vides for.
113b. Extension of Time of Payment — Evidence — Burden of
Proof.
114. Consideration.
115. Effect on Surety's Contract by Taking Usury for Extension.
116. Effect of Creditor's Reservation of His Remedies Against
Surety.
117. Extension with Consent of Surety.
118. Waiver of Discharge.
119. Extension Must be for a Time Certain.
120. Giving Time to One of Two or More Sureties.
121. What is a Promise of Extension.
122. Accepting New Note.
123 Taking Collateral Security.
124. Personal Judgment for Deficiency in Foreclosure Proceed-
ings.
125. Fraud — Extension of Time.
126. Fraud to Induce Surety to Sign Contract
127. Notice to Creditor of Principal Debtor's Dishonesty.
128. Negligence of Creditor in Not Availing Himself of the
Debtor's Means.
129. Surety Signing Upon Condition.
130. Surrendering Security.
131. Taking Property by Attachment and Execution.
132. Failure to Apply Securities.
133. Release of Co-surety.
134. Failure of Creditor to Sue Principal.
135. Disaffirmance of Contract by Principal.
Table of Contents. ix
Section 136. Fraud Upon the Principal.
137. Substitution of Securities.
138. Payment of Consideration in Installments — Building Con-
tracts.
139. Tender of Payment.
CHAPTER VL
RIGHTS AND REMEDIES OF SURETY AS TO CREDITOR.
Section 140. The Contract in General.
141. Diligence of Surety.
142. Facts Concealed — Not Connected with the Contract.
143. Facts Developed Subsequent to the Contract.
144. Set-off and Recoupment.
144a. Notice of Default.
145. Compelling Creditor to Bring Suit.
146. Effect of Notice by Surety to Creditor to Proceed to Collect
Debt.
147. Creditor's Promise to Look to the Principal only.
148. Creditor Informing the Surety that the Debt is Paid.
149. Surety May Compel Creditor to Resort to Securities in the
Creditor's Hands.
150. Right of Surety to Defend Action Brought Against His Prin-
cipal.
151. Subrogation of Creditor to Surety's Securities.
152. Subrogation of Surety to Creditor's Rights.
153. What Securities the Surety is Entitled to Claim.
154. When Surety Can Take Securities.
155. Stranger Paying Debt.
156. When Surety Will Not Be Subrogated.
157. Surety ]\Iust First Pay the Debt.
158. What is Payment.
159. Debtor and Creditor.
160. Fraudulent Conveyances of Principal.
161. As to Exemptions of Principal.
162. When Surety Owes Principal.
163. Payment of a Specialty or Judgment.
164. Extent of Subrogation.
165. Surety of a Surety.
166. Co-Sureties.
167. Joint Debtors.
168. Successive Sureties in Judicial Proceedings.
169. Guarantors.
170. Surety's Defense — In Courts of Equity or of Law.
171. Remedies of Creditor.
172. Death of Principal.
173. Debt Barred Against the Principal.
:x Table of Contents,
CHAPTER VII.
EIGHTS AND EEMEDIES OF SURETY AS TO PRINCIPAL.
Section 174. Liability of Principal to Surety.
175. Payment Before Due by Surety.
176. Part Payment by Surety.
177. The Surety Must Be Under a Legal Obligation to Pay,
178. Proper Action for Surety to Bring Against Principal.
179. Surety to One of Partners.
180. Surety Giving His Own Note in Payment of the Debt.
181. Debt Satisfied Out of the Surety's Property.
182. When the Surety's Right of Action is Complete.
183. Liability of Principal for Surety's Costs and Interest.
184. Recovery of Consequential Damages.
185. Payment of Usury by the Surety.
186. What Amount the Surety Can Collect from the PrincipaL
187. Joint Suit by Sureties.
188. Payment of Judgment by Surety.
189. Right to Take Indemnity from the Principal.
190. When the Principal is Not Liable.
191. Voluntary Payment by Surety.
192. Statute of Limitations as Between Surety and Principal.
193. Relief of Surety in Equity.
CHAPTER VIII.
RIGHTS OF CO-SURETIES.
Section 194. Right to Contribution.
194a. Right to Contribution Continued.
194b. Right to Contribution — Not Subject to Judicial Control.
194c. Right to Contribution — Accommodation and Compensated
Sureties.
195. Payment by Note.
196. Enforcement at Law.
197. Enforcement in Equity.
198. The Co-surety Cannot Speculate to the Injury of His Co-
sureties.
199. Surety of a Surety.
200. Obligation to Contribute.
201. Liability of Surety's Estate.
202. Remedy Against Co-surety Before Payment.
203. Co-sureties Under Different Instruments.
1 204. The Obligation Must Be the Same.
; 205. Co-sureties Limiting Their Liability in Different Amounts,
206. Accommodation Indorsers.
207. Sureties in Lesral Proceedings.
208. Indemnity to One Evrety.
Tx\BLE OF Contents. xi
Section 209. Liability to Contribute on Successive Bonds.
210. Admissibility of Parol Evidence to Show that Parties on a
Promissory Note are Co-sureties.
211. Statute of Limitations.
212. Bankruptcy of Co-surety.
CHAPTER IX.
SURETIES ON BONDS IN LEGAL PROCEEDINGS.
Section 213. Discharge of Surety on Dissolution of Attachment.
214. Exoneration of Sureties on Attachment Bonds.
215. Judgment of Non-suit.
216. Attachment Lien Being Discharged — Insolvency of Debtor.
217. Increase of Claim by Amendment of Declaration.
218. Bringing in New Parties as Defendants.
219. Trespass by Officer.
220. Delivery Bond — Rights of Surety to Property.
221. Void Bond.
222. Damages.
223. The Surety is Concluded by the Judgment Against His
Principal.
224. Appeal Bond — Discharge of Sureties.
225. Appeal to a Special Court.
226. Change of Issue and Parties.
227. Enlargement of Claim.
228. Agreement of Litigants.
229. Suggessive Appeal Bonds are Cumulative.
230. Indemnity Bonds.
231. Liability on Indemnity Bonds.
232. Injunction Bonds — Liability of Surety.
233. When Suit May Be Brought for Breach,
234. Liability, Joint and Several.
235. What Law Governs.
235a. Liability and Damages
236. Dissolution by Series of Orders.
237. Concluded by Judgment Against Principal.
238. Replevin Bond.
239. Discharge of Surety.
240. New Parties — Substitution.
241. Varying the Terms of the Bond.
CHAPTER X.
BONDS OF PERSONS ACTING UNDER JUDICIAL SANCTION.
Section 242. Executors and Administrators.
243. Estoppel by Judgment Against PrincipaL
244. Income of Real Estate.
245. Sale of Real Estate Beyond Jurisdiction of Court.
246. Surety is Liable Only for Principal's Official Acts.
x'li Table of Coxtents.
Section 147. Giving New or Additional Bond.
248. Liability of Discharged Surety.
249. Sureties on Joint Bonds.
250. Allowances to Intestate's Widow and Family.
251. Executor or Administrator Debtor to the Estate.
252. Common-Law Rule as to Executor Being Debtor to the Es-
tate.
253. General Liability of Sureties.
254. Same Person Administrator of One Estate and Executor of
another.
255. Executor or Administrator Acting in Other Fiduciary Ca-
pacity.
256. Failure to Return Inventory or to Account.
257. Release of Sureties.
258. When Right of Action Arises Against Sureties.
259. Sureties of Guardian — General Liability.
259a. Bond not Complying with Statute.
260. Giving Additional Security.
261. Guardian Selling Real Estate.
262. Discharge of Surety.
263. Termination of Surety's Liability.
264. When Action upon the Bond Accrues.
265. Estoppel by Judgment Against Principal.
266. Estoppel by Recitals in the Bond.
267. Joint Guardians.
268. Joint Bond Instead of Several.
269. Extent of Surety's Liability.
270. Revival of Liability by Surety.
271. Receiver's Bond — Liability of Sureties.
272. Right of Action Against Surety on Receiver's Bond.
273. When Surety is Concluded by Decree of Court.
274. Funds Coming Into the Hands of the Receiver.
275. Giving a New Bond.
276. Extent of Surety's Liability.
277. Liability of Surety on Assignee's Bond.
278. Estoppel of Surety.
279. Giving New Bond.
280. Default of Assignee.
281. Discharge of Surety.
CHAPTER XL
BONDS OF PRIVATE OFFICERS AXD AGENTS.
Section 282. Duration of Surety's Liability.
283. Continuing Liability of Surety.
284. Restriction of Surety's Liability by Recitals in the Bond.
285. As to the Scope of the Officer's Employment.
286. Increase of Capital Stock of Corporation.
287. Discharge of Surety by Fraud.
Table of Contents. xiii
Section 287a. Bond and Application Construed Together — Effect of State-
ments in Application.
288. Bond Covering Prior and Subsequent Defaults.
289. Principal His Own Successor.
290. Continuing Principal in Office After Known Defaults.
291. Delinquency of Obligee.
292. Failure to Discharge Delinquents.
293. Failure to Notify Surety of Default.
294. Covenant not to Sue.
295. Accord and Satisfaction.
296. Notice of Surety's Withdrawal.
297. Discharge by Acts of Obligee.
297a. Departure from Terms of Contract.
298. Action on the Bond.
299. Sureties Concluded by Recitals in a Bond.
300. Liability for Loss of Money.
CHAPTER XII.
BONDS OF PUBLIC OFFICERS AND AGENTS
Section 301. Extent of Surety's Liability.
302. Liability of Surety for Previous Defaults of Officer.
303. Presumption as to Sureties on Second Bond.
304. De Facto Officers,
305. Officers Holding Over.
306. Death of Officer.
307. Money Used to Cover Previous Delinquencies.
308. Giving Second Bond in Same Term.
309. Giving Bond without Statutory Authority — Non-com-
pliance with Statute.
310. General and Special Bonds Given by an Officer.
311. Sureties are Liable Only for Their Principal's Official Acts.
312. Subsequently Imposed Duties.
313. Subsequently Imposed Duties by the Legislature.
314. The State is not Responsible for Its Officers' ActS.
315. Forgery of Prior Surety's Name.
316. Money Lost or Stolen from Principal.
317. Depositing Public Money in Bank.
318. Making Profits on Public Funds.
319. Interest Recovered After Breach.
320. Liability of Sureties as to Payment of Penalties;
321. Estoppel by Judgment.
321a. Construing Bonds with Reference to Statute.
322. Sheriffs and Constables.
323. Scope of Liability.
324. Levying on a Stranger's Property and on Property Exempt.
325. Officers Liable for Ministerial Duties.
320. Duty to Indidivuals and to the State.
327. Amount of Sureties' Liability.
XIV
Table of Contents.
Section 328.
329.
330.
331.
332.
333.
334.
335.
336.
337.
338.
Section 339.
340.
341.
342.
343.
344.
345.
346.
347.
348.
349.
350.
351.
352.
353.
354.
355.
356.
357.
358.
359.
360.
361.
362.
363.
364.
365.
366.
367.
368.
369.
Liability of Sureties After Term Expires.
Sureties' Liability on Bonds of Clerks of Court,
Compensation of Clerks.
Failure to Pay Over to Successor in Office or to Proper
Party.
Money Paid Into Court or by Order of Court.
Delinquencies of Clerks.
Sureties of Justices of the Peace.
Police Ollicers.
Sureties of Notary Public.
Tax Collector.
Subrogation of Sureties on Official Bond,
CHAPTER XIII.
GUARANTY.
Definition.
Classification of Guaranties as to Their Nature.
Consideration.
Executory Consideration.
Moral Obligation.
As to Consideration, Guaranties are of Two Kinds.
Guaranties Where the Consideration is Entire.
Guaranty Where the Consideration Passes at Different
Times and is Separable.
Indorsement Before and After Maturity of Note.
Offer and Acceptance.
Guaranty of Payment.
Conditional Guaranty.
Guaranty of Illegal Contracts,
Default of Payment — Notice to Guarantor,
Notice of Default,
Continuing Guaranty.
Letters of Credit May Be a Continuing Guaranty,
Construction of Contract.
Negotiability of a Guaranty.
Negotiabilty of a Guaranty Under Seal.
Guaranty of Collection,
What is Due Diligence.
Discharge of Guarantor.
Discharge by Change in the Principal Contract.
Discharge by Extension of Time.
Discharge by Release or Negligent Loss of Securities.
By Fraud and Duress.
Guaranty Covers Defects in the Original Contract — Failure
of Consideration.
Revocation of a Continuing Guaranty.
Death of Guarantor.
Release of Co-guarantor.
Table of Contents.
XV
Section 370. What Law Governs.
371. Statute of Limitations.
372. Payment of Debt by Guarantor.
CHAPTER XIV.
Section 373.
374
375
376
377
378
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
396
397
398
399
400
401
Section 402.
403.
404.
405.
406.
407.
408.
409.
GUARANTY WITHIN THE STATUTE OF FRAUDS.
Fourth Section of the Statutes of Frauds.
When the Promise is Within the Statute,
Effect of the Statute of Frauds.
Principal Debtor — Incapacity to Contract.
New Consideration.
Consideration for Promise.
Third Party Taking Debtor's Property — Agreement to Pay
Creditor.
If Third Person is Not Liable.
. Original Consideration.
. Oral Promise to Indemnify Another.
Indemnity Contracts in General.
. What is a Sufficient Consideration.
Novation.
. Promise to Pay the Debt of Another — Statute of Frauds.
. Promise to the Debtor to Pay His Debt.
. To Whom Credit is Given.
. Indorsing and Executing Notes for Another.
. Assignment of Promissory Notes.
Agreement to Pay Debt of Contractor.
. Relinquishment of a Lien.
Promise to Perform the Obligation of Another Person.
. Del Credere Contracts.
. To Whom the Promise Must Be Given.
. Contract for the Benefit of the Promisor.
Special Promise — When Original Debtor is Released.
Sale of Goods — Liability of Third Person.
Joint Liability.
Oral Contract of Insurance.
. To Answer for the Torts of Another.
CHAPTER XV.
BAIL.
Bail Defined.
Distinction Between Bail and Mainpernors.
Arrest in Civil Action.
Obligation of Bail.
Rights of Bail.
Extent of Liability.
Discharge of Principal in Bankruptcy or Insolvency.
Payment by Imprisonment of Principal.
x\i Table of ContentSo
Section- 410. Different Sets of Sureties.
411. Exoneration of Bail.
412. Exoneration by Performance of Condition.
413. Bail in Criminal Cases.
414. Rights and Liabilities of Bail.
415. Implied Contract of Indemnity to Bail.
416. Express Contract of Indemnity to Bail.
417. Extent of Sureties' Liability.
418. Costs.
419. Joint and Several Liability of Sureties.
420. Effect of Pardon.
421. Delivery of Principal by Bail to Proper Officer^
422. Bail on Appeal.
423. Appearance of Principal.
424. Re-arresting Principal on the Same Charge.
425. Giving a New Bond.
426. Arresting Principal on Different Charge.
427. Sureties are Released by a Change of Their Obligation.
428. Exoneration of Bail by Act of God.
429. Exoneration by Act of Law^.
430. Exoneration by Act of Obligee.
431. Exoneration of Sureties in General.
432. Subrogation in Criminal Cases.
433. Forfeiture of Bond.
434. Setting Aside Forfeiture.
435. Voluntary Appearance or Arrest After Forfeiture — Costs.
436. Effect of Remission of Forfeiture.
437. Taking Money in Lieu of Bail.
CHAPTER XVI.
Section 43S.
439.
440.
441.
442.
443.
444.
445.
446.
447.
448.
440.
SURETY COJIPANIES.
Statutes Affecting Surety Companies.
Statute Cannot Fix Rate Company May Charge.
Penalty Statute — Surety Company — Construction of.
Foreign Surety Companies.
Rule that Surety a Favorite of the Law not Applicable to
Surety Companies.
Surety Company Contract Treated Similar to Insurance
Contract.
Surety Contracts Treated as Insurance Contracts — Appli-
cation of Principle to Agents — Premiums.
Surety Bond and Application Construed Together.
Surety Company and Agent — Apparent Scope of Authority.
Surety Company and Agent — Written Authority.
Notice to Company of Default — Provision as to Construed
— Waiver.
Where Company Succeeds to Assets of Anotlier Company.
THE LAW
OF
Suretyship and Guaranty.
CHAPTER I.
NATURE AND EFFECT.
Section i. Principal,
2. Surety.
2a. Rights of Surety to Indemnity.
2b. Contract to Pay Anottier to Act as Surety.
3. Co-surety.
3a. Terms " Guarantor " and " Surety " Generally,
4. Distinction between Suretyship and Guaranty.
5. How Created.
6. Nature of Surety's Liability.
7. Ignorance of Co-surety's Obligation.
8. Substitution of Sureties.
9. Successive Bonds.
10. Agreement as to Liability Among Sureties.
11. Grantee of Mortgaged Premises.
12. Rights of ^Mortgagee — In Equity or in Law.
13. The Mortgagee Must Assent.
14. Accommodation Indorser.
15. The Acceptor of Drafts.
16. Indorser of Notes.
17. Notes Payable to Maker.
18. Pledging or Mortgaging Property to Secure Debt of Another
Person.
19. Mortgaging of Wife's Separate Property to Secure the Debts
of Her Husband.
20. Dissolution of Partnership — One or More Partners Assuming
Partnership Debts.
21. Partners or Principals Agreeing Among Themselves — Effect
on Creditors' Rights.
22. Joint Contract.
23. Joint Executors and Administrators.
Sec, I. Principal, — The principal is the debtor who is prim-
arily liable. He is primarily ooneemed and, therefore, cannot be
an accessory or ancillary. The contract of indebtedness is made
§ 2 SuRi':TYSinp and Guaranty. 2^
by the principal, who is liable to pay the debt, though the surety
is also liable. They can in most States be sued jointly or severally.
But the obligation of the surety is to the creditor or obligee, and
not to the principal;^ and the liability of the surety cannot exceed
tliat of the principal.^ The surcity is liable to the obligee or cred-
itor to the same extent as the principal, and such liability need not
bo tixed by judgment.^
At common law a principal and surety could be joined as parties
defendants only in an action where their undertaking was joint or
joint and several.'' But now in most of the States they can be
sued jointly or severally whotlier their undertaking is joint or sev-
eral.
§ 2. Surety. — A person who engages to be answerable for the
debt, defaidt or miscarriage of another is a surety. He under-
takes to pay the debt if the principal does not.^ He is an insurer
1. Benjamin v. Ver Nooy, 36 App. Indiana. — Young v. McFadden, 125
Div. (N. Y.) 581, 55 N. Y. Supp. 796. Ind. 254, 25 N. E. 284.
Where one of two joint sureties is Iowa. — Pitkins v. Boyd, 4 G.
absent from the State and without Greene, 255.
the jurisdiction of the court, it is Maine. — Read v. Cutts, 7 Greenl.
not necessary to make him a party 186, 22 Am. Dec. 184.
to a suit on the joint contract to re- Michigan. — Roberts v. Hawkins,,
cover a personal judgment. Tally 70 Mich. 566, 38 N. W. 575; Smith v.
V. Ganahl, 151 Cal. 418, 90 Pac. 1049. Shelden, 35 Mich. 42, 24 Am. Rep.
2. United States v. Allsburg, 4 529.
Wall. (U. S.) 186, 18 L. Ed. 321. Minnesota. — Hammel v. Beards-
3. Kroncke v. Madsen, 56 Neb. ley, 31 Minn. 314, 17 N. W. 858; Cas-
609, 77 N. W. 202; Judge of Probate san v. Maxwell, 39 Minn. 391, 40 N.
V. Sulloway. 68 N. H. 511, 44 Atl. W. 358.
720. New Hampshire. — Watriss v.
4. People V. Miller, 2 111. 83; Cast- Pierce, 32 N. H. 560.
ner v. Slater, 50 Me. 212; Lee v. North DaI[ota. — Northern State
Bolles, 20 Mich. 46. Bank of Grand Forks v. Bellamy
5. Mcintosh-Huntington Co. v. (1910), 125 N. W. 888.
Reed, 89 Fed. 464. Ohio.— Wise v. Miller, 45 Ohio St.
Surety defined, see: 388, 14 N. E. 218.
Alabama. — Mobile & O. R. Co. v. Oregon. — Hoffman v. Habighorst,
Nicholas, 98 Ala. 92, 12 So. 723. 38 Ore. 261, 63 Pac. 610, 53 L. R. A.
ralifornia.— Sather Banking Co. v. 908.
Briggs Co., 138 Cal. 724, 72 Pac. 352. Texas.— Magill v. Brown Bros., 20
Dakota.— Kennedy v. Falde, 4 Tex. Civ. App. 662, 50 S. W. 642.
Dak. 319. 29 N. W. 667.
3 Nature and Effect. § 2
of the debt.^ The surety assumes to perform the contract of the
principal if he should not, and if the act which the surety under-
takes to perform through the principal is not done, then the surety
is liable at once.^ An offer in writing, however, to stand security
upon a contract afterward to be made will not render one liable
as surety.^
A surety is usually bound with his principal by the same in-
strument, executed at the same time and with the same considera-
tion. He is an original promisor and debtor from the beginning,
and must know every default of his principal. He is bound with
and for another, who is primarily liable, and who is called the
principal. The surety engages to answer for another's appear-
ance in court, or for his payment of a debt, or for tlie performance
of some act.^
Utah. — Gagan v. Stevens, 4 Utah
348, 9 Pac. 706.
Yirginia. — Sherman's Am'r v.
Shaver, 75 Va. 1.
West Virginia. — Johnson v. Young,
20 W. Va. 614.
See 8 Words and Phrases, p. 6809
et seq.
Surety for the peace is one of the
branches of preventive justice and
consists in obliging those persons,
of whom there is probable ground to
Buspect of future misbehaviour, to
stipulate to give full assurance to
the public that such olfense as is
apprehended shall not happen, by
finding pledges or securities for
keeping the peace. Hyde v. Grench,
62 Md. 577, 582. Per Miller, J.,
citing 4 Blackstone Comm. 251.
Suretyship defined, see:
United States. — Mcintosh-Hunt-
ington Co. V. Reed, 89 Fed. 464.
Alabama. — State v. Parker, 72
Ala. 181.
Arkansas. — Ringgold v. Newkirk,
3 Ark. 96.
Indiana. — Woody v. Haworth, 24
Ind. App. 634, 57 N. E. 272; Thorn-
burg V. Allman, 8 Ind. App. 531, 35
N. E. 1110.
Louisiana. — Payne v. Cusimano, 50
La. Ann. 361, 23 So. 361.
Oregon.— Hoffman v. Habigborst,
38 Ore. 261, 63 Pac. 610, 53 L. R. A.
908.
PennsylTania.— Allegheny County
Light Co. V. Reinhold, 21 Pa. Co. Ct.
118.
Question of law, whether person
signed as surety. Gates v. Morton
Hardware Co., 146 Ala. 692, 40 So.
509.
Parol cTldence admissible to show
that one who appears by the terms
of an instrument to be a principal
was in fact a surety. National Bank
of Commerce v. Schirm, 3 Cal. App.
696, 86 Pac. 981.
See § 171 herein.
6. Northern State Bank of Grand
Forks V. Bellamy, 19 N. D. 509, 125
N. W. 888; Kramph v. Hatz, 52 Pa.
St. 525.
7. Reigart v. White, 52 Pa. St. 438.
8. Teasley & Co. v. Ray, 9 Ga.
App. 649, 72 S. E. 43.
9. Surety is an original promisor.
§§ 2a, 2b, 3 Suretyship and Guaranty. ■^
§ 23. Right of Surety to Indemnity. — The surety has a right
to b© protected by his principal, and can enforce that right when
the principal is financially responsible.^*
A surety is a person who, ibeing liable to pay a debt or perform
an obligation, is entitled, if it is enforced against him, to be in-
demnified by some other person, who ought himself to have made
payment or performed the obligation before the surety was re-
quired to do so.^^
" One of the essential elements of the contract of suretyship is
the equity of 'the surety, which depends, not so much on his rela-
tions with tJie creditor, as on his right to indemnity from his prin-
cipal, and the consequent obligation on the part of the creditor not
to do any act by which 'this right might be prejudiced." ^^
One who signs a note as surety for another becomes a creditor
of the latter at the time he signs the note and not at the time that
ihe pays it.^^
§ 2b. Contract to Pay Another to Act as Surety. — A contract
botween parties by which one agrees to pay another to assume the
obligation of a surety for tihe former may be entered into. Such
la contract is founded upon a good consideration and is lawful."
In fact, a large proportion of the surety contracts at the present
^ate are between parties one of whom has, for an agreed-upon
remuneration, assumed the obligation of surety.
§ 3. Co-surety. — Persons are co-sureties, so as to give the
right of contribution, when they are bound for the performance,
iby the same principal, of 'the same ohligation, and, whether they
become so at the same time or at different times by one or several
Northern State Bank of Grand Forks App. 463 ; Fritch v. Citizens' Bank,
V. Bellamy, 19 N. D. 509, 125 N. W. 191 Pa. St. 283, 43 Atl. 394.
888. 11. Reissans v. Whites, 128 Mo.
The principal and surety are App. 135, 106 S. W. 603.
bound by the same instrument, 12. Reeves & Co. v. Jowell (Tex.
while the principal does not ordi- Civ. App. 1911), 140 S. W. 364, per
narily join in the contract of the Hall, J.
guarantor. Surety insures debt, 13. Griffin v. Long, 96 Ark. 268,
guarantor solvency of the debtor. 131 S. W. 672.
New Times Pub. Co. v. Doolittle See § 162 herein.
(Colo., 1911), 118 Pae. 974. 14. Givens v. Gridley, 32 Ky. Law
10. Roberts v. Trust Co., 83 111. Rep. 825. 106 S. W. 1192.
&
Natuke and Effect.
instrumeints, even if they are bound in different sums, or if each
is ignorant that the others are sureties — ^does not affect the relation
nor the right. Thus, where a party is surety for $2,000, and an-
other party becomes surety for $1,000 for the same debt by the
same principal and has to pay that amount, he may have con-
tribution from the ffrst surety, who is ignorant of the second con-
tract of surety, it being at a different time and by a different in-
strument.^'' But this doctrine does not hold where the obligations
-Galson v. Brand, 75
-Warner v. Morri-
V. Shunt, 30
Boyd, 60 Ohio
Sacchi,
15. lUinois.-
111. 148.
Massachusetts.-
son, 3 Allen 566.
Minnesota. — Young
Minn. 503.
Ohio. — Robinson v.
St. 57, 53 N. E. 494.
New York. — Aspinwall v.
57 N. Y. 331.
Virginia. — Rosenbaum v. Good-
man, 78 Va. 121.
England. — Bllesmere Brewing Co.
V. Cooper (1896), 2 Q. B. 75; Deering
V. Winchelsea, 1 Cox 318.
See § 203 herein.
Presumption that sureties are co-
sureties.
California. — See Kellogg v. Lopez,
145 Cal. 497, 78 Pac. 1056, holding
that the form of the instrument may-
be disregarded in equity.
Indiana. — Houck v. Graham, 106
Ind. 195, 6 N. E. 594, 55 Am. Rep.
727 (sureties on note).
Maine.— Crosby v. Wyatt, 23 Me.
156 (sureties on note: character in
which parties signed presumed to
be correctly exhibited by the note) .
Massachusetts. — Weeks v. Par-
sons, 176 Mass. 570, 58 N. E. 157
(sureties on note: holding it unnec-
essary that there should be a con-
tract in so many words to sign as
co-sureties).
See Chaffee v. Jones, 19 Pick. 260,
holding one who signed a note be-
fore it was negotiable to be an origi-
nal promisor and surety, and sign-
ing the note in that character to
have his remedy against tne other
sureties, whether they knew of his
becoming surety or not.
Nebraska, — Eisley v. Horr, 42 Neb.
3, 60 N. W. 365 (sureties on notes).
New York. — See Coburn v. Whee-
lock, 34 N. Y. 440 (sureties on notes:
holding legal effect of contract to be
that each was liable for the whole
amount of the note and liable to the
one paying for his proportionate
share, equally with the others, there
being no arrangement altering this
liability).
North Carolina. — Smith v. Carr,
128 N. C. 150, 38 S. E. 732 (sureties
on note).
Vermont. — Flanagan v. Post, 45
Vt. 246 (sureties on note).
Washington. — Caldwell v. Hurley,
41 Wash. 296, 83 Pac. 318 (sureties
on corporation note).
Presumption that sureties are not
co-sureties.
Alabama. — Moody v. Findley, 43
Ala. 167, holding must be some
agreement, express or implied, to
render them liable as co-sureties.
Indiana. — Knopf v. Morel, 111 Ind.
570, 13 N. E. 51, holding endorser of
note not presumed to be co-surety of
one who signs as maker, but that
parol evidence is admissible to
prove that he did so sign.
§ 3a
Suretyship and Guakanty.
aro for wliolly distinct things, though arising from 'the same prin-
cipal indebtedness ; where the obligations have no relation to nor
operation npon one another, thougih they arise from the same prin-
cipal indebtedness, the parties are not co-sureties. Thus A, B and
C are sureties on D's bond. D makes default, judgment is ren-
dered against him and an execution is levied on his goods. He
gives a forthcoming bond, signed by A and B as sureties. A second
default is made by 1) on this forthcoming bond, and A paid the
amount and then endeavored to have contribution from C, who waa
on the original bond, hut not on the forthcoming bond. Here the
obligations are not the same, as C is not A's co-surety.^^
§ 3a. Terms " Guarantor " and " Surety " generally. — The
tenns " guarantor " and " surety " are often used indiscriminately
as meaning the same person, without any reference to the technical
distinction between Ihem." And in a case in Georgia it is said :
North Carolina.— Smith v. Smith,
16 N. C. 173, holding that where A,
as surety, signed the note of B, pay-
able to C, and it was endorsed by
C at the request and for the accom-
modation of B, there being no con-
tract between A and C whereby they
agreed to become co-scureties of B,
A had no right of contribution from
C.
Rhode Island. — See Chapman v.
Pendleton, 26 R. I. 573, 59 Atl. 928,
holding that an agreement to be-
come co-sureties may be either oral
or written.
Tennessee. — See Stacy v. Rose,
(Ch. App. 1900), 58 S. W. 1087, hold-
ing that the payee of a note whose
name stands as first endorsee there-
on cannot recover of parties whose
names stand as subsequent en-
dorsers thereon, the amount paid by
him In satisfaction of the note with-
out averment and proof of the facts
showing that the subsequent in-
dorsers are as to him in fact joint
makers or guarantors of the note.
16. National Surety Co. v. United
States, 123 Fed. 294, 59 C. C. A. 479;
Hutchinson v. Roberts, 8 HousL
(Del.) 459, 17 Atl. 1061; Lacy v. Rol-
lins, 74 Tex. 566, 12 S. W. 314; Har-
rison v. Lane, 5 Leigh (Va.) 414;
Langford v. Perrin, 5 Leigh (Va.)
552; Rosenbaum v. Goodman, 78 Va.
121.
See § 203 herein.
17. Watriss v. Pierce, 32 N. H. 560;
Hall v. Weaver, 34 Fed. 104.
Term " guarantee " construed as
oriiarinal promise.
Though the term " guarantee "
may be used in a writing, yet the ob-
ligation assumed may be construed
as being an orignal promise and not
a guaranty. Thus, where a trustee
became insolvent and his bondsmen
agreed to " guarantee to pay as the
same becomes due all assessments
and premiums " necessary to con-
tinue in force a policy of insurance
which had been assigned to secure
the payment of notes executed to
cover his indebtedness, the word
7i Natuee and Effect. § 4:
^* We have little sympathy with artificial distinctions between prin-
ciples of law which present no substantial difference as to matters
of right and justice, whioh tend to' confuse rather than to en-
lighten, and to furnish loopholes for technical escapes from con-
tract obligations. The important question in the case now under
consideration is whether the writing is a valid written obligation,
it being wholly immaiterial, in determining this question, whether
the maker of the obligation is bound as surety or guarantor/' ^*
" In a technical and limited sense a surety is a co-promisor or
co-obligor, but, in the more general and usual sense, a surety is one
who undertakes to answer for any debt or default of his principal
without regard to the special character or the special designation
given to the contract or undertaking of the principal. lA guarantor,
also, in a striot sense, is one whose lia!bilities are in general less
than those of a surety and they d(^end upon more technical rules.
But in an enlarged sense, a guaranty is a promise to answer for
the payment of some debt or the performance of some duty, in
case of the failure of another person, who in the first instance is
liable." ''
§ 4. Distinction Between Suretyship and Guaranty. — The dis-
tinction between the obligation of suretyship and guaranty, is that
the surety undertakes to pay if the principal does not; while the
guarantor undertakes to pay if the principal cannot ; that is, if he
is insolvent and unable to pay.^^ " A ' contract of suretyship ' is a
" guarantee " was bo construed. 18. Small Co. v. Claxton, 1 Ga.
Merritt v. Haas (Minn. 1911), 129 N. App. 83, 57 S. E. 977. See also Con-
W. 379. Bolidated Portrait and Frame Co. t.
And, likewise, a similar construe- Claxton, 1 Ga. App. 809, 57 S. E. 980.
tion was given where an executor 19. Watriss v. Pierce, 32 N. H. 560,
" guaranteed " payment for materials per Eastman, J., citing 3 Kent Com.
furnished the estate. Bossert v. 121.
Striker, 142 App. Div. (N. Y.) 5, 126 20. Mcintosh-Huntington Co. r.
N. Y. Supp. 726. Reed, 89 Fed. 464; Kramph v. Hatz,
Again an indorsement of a note 52 Pa. St. 525.
" For value received we hereby guar- See § 339.
antee the prompt payment of the As to the distinction between a
within note " was held to render the guarantor and surety, it is said in a
indorsers liable as sureties. Iron case in Georgia: "In brief, we un-
City National Bank v. Rafferty, 207 derstand the difference to be this: A
Pa. St. 238, 56 Atl. 445. surety binds himself to perform, if
§ 4 Suretyship and Guakanty. 8
contract bv which the surety becomes bound as the principal or
original debtor is bound. It is a primary obligation. The surety
is bound with his ])rincipal as an original promisor. On the other
hand the ' contract of a guarantor ' is his own separate contract ; it
is in the nature of a warranty by him that the thing guaranteed to
be done by the principal shall be done. The guarantor has to an-
swer for the consequences of the principal's default. A ' surety '
is an insurer of the debt. A ' guarantor ' is an insurer of the sol-
vency of tihe debtor. A surety may be sued as promisor but a
guarantor camiot." ^^ The surety is directly liable to the creditor
for the act to be performed, while the guarantor is liable only for
the ability of another to perform this act. The undertaking under
suretyship is immediate and direct that the act shall be done ; if
not done, the surety becomes at once responsible. In the case of
guaranty, non-liability of the debtor, that is, his insolvency, must
first be shown before the guarantor becomes liable.^^
In a strict guaranty the guarantor does not undertake to do the
thing which his principal is bound to do, but his obligation is that
the principal shall perfonn such act as he is bound to perform,
or in the event he fails that the guarantor will pay such damages
as may result from such failure. iSo when there is in any instru-
ment a promise or undertaking on the part of a person executing
it to do a particular thing which another is bound to do, in the
event such other person does not perform the act, it is an original
undertaking and not a strict or collateral guaranty. It is an un-
the principal does not, without re- guarantor says to him, ' Proceed
gard to his ability to do so. His con- first against the principal, and if he
tract is equally absolute with that should not be able to pay, then you
of his principal. They may be sued may proceed against me.' " Manry
in the same action, and judgment v. Waxelbaum Company, 108 Ga. 14,
may be entered up against both. A 17, 18, 33 S. E. 701, per Cobb, J.
guarantor, on the other hand, does An agreement to pay if credit is
not contract that the principal will extended in case the one to whom
pay, but simply that he is able to do it is extended does not, is one of
so; in other words, a guarantor war- guaranty. ShefReld v. Whitfield, 6
rants nothing but the solvency of Ga. App. 762, 65 S. E. 807.
the principal. Before an action can 21. Northern State Bank of Grand
be maintained against a guarantor, Forks v. Bellamy, 19 N. D. 509, 125
therefore, it must be shown that the N. W. 888, citing Ogden, Negotiable
principal is unable to perform. The Instruments, § 220.
surety says to the creditor. ' If your 22. Reigart t. White, 52 Pa. St.
debtor will not pay, I will pay.' The 440.
9 Nature and Effect. § 4
dertaking in the nature of a surety, and tlie person bound by it
must take notice of the default of his principal.^^
The contract of a guarantor is collateral and secondary ; that of
the surety is direot; the guarantor contracts to pay if by the use
of due diligence the debt cannot be made out of the principal
debtor, while the surety undertakes directly for the payment and
is so responsible at once if the principal debtor makes default."*
The surety is an insurer of the deibt, the g-uarantor of the solvency
of the debtor. The contract of the guarantor for collection is con-
ditional on the creditor's diligence to collect the debt ; a mere de-
lay will not release a surety. To be released the surety must de-
mand proceedings with notice that he will not be bound if they are
not instituted.^'' A guaranteed contract of collection becomes ab-
solute only by due and unsuccessful diligence =tO' obtain satisfaction
from the principal debtor.^^ Thus, a delay of more than two years
to enter judgment notes against a failing debtor discharges the
guarantor. ^^ So delay of eight years to sue a note discharges the
guarantor of the debt.^^
A surety is in the first instance answerable for the debt for
which he makes himself responsible ; his contracts are often spec-
ialties ; while the guarantor is only liable where default is made by
the party whose undertaking is guaranteed, and his agreement is
one of simple contract. The surety is not entitled to notice, and is
not discharged by the insolvency of the principal for want of notice,
altJiough the principal debtor was solvent when the debt became
due. In regard to a guarantor, if the debt is not paid at maturity
by the principal and he is solvent at the time, the guarantor will
be discharged, if he has not received notice, if the principal shall
become insolvent. The guarantor is entitled to notice within a
reasonable time that the debt is not paid when due, anid if not
23. Woods V. Sherman, 71 Pa. St. Guarantor grnarantees solyency of
100; Riddle v. Thompson, 104 Pa. St. principal. Manry v. Waxelbaum Co,,
330; Wright v. Griffith, 121 Ind. 478, 108 Ga. 14, 17, 18, 33 S. E. 701.
23 N. E. 281. 26. Gilbert v. Henck, 30 Pa. St.
24. Bailey Loan Co. v. Seward, 9 205.
S. Dak. 326; Kearnes v. Montgomery, 27. Miller v. Berby, 27 Pa. St. 317.
4 W. Va. 29. 28. Isett v. Hoge, 2 Watts. (Pa.)
2.'>. Kramph v. Hatz, 52 Pa. St. 525. 128.
Surety insurer of debt, see § 2.
§§ 5, 6 Suretyship and GuAR^vNTy. 10
notified lie will be discharged when lie can show a direct injury for
want of notice.^^
There is also a distinction between guaranty of payment and
guaranty of collection. A guaranty of payment is an absolute un-
oonditional undertaking on the part of the guarantor that the maker
will pay the note, while a guaranty of collection is an undertaking
to pay if payment cannot by reasonable diligence be obtained from
the principal debtor. ^'^ However, there are two lines of decisions,
which cannot be reconciled, as to guaranty of payment, whether
absolute or conditional.^^
§ 5. How Created. — Suretyship may be created by express
contract of the parties, or by the operation of law. Where there
is an express contract, the relation does not exist when 'the party
contracting is the direct beneficiary, and the contract is entered
into by him for his own benefit, for then he is principal and not
surety.^' There is no diiference between a suretyship created by
law and created by acts of the parties.^
To make one surety upon a note a principal as to another suret^y
it has been decided that it must be shown that the latter became
surety at his request.^*
If parties become sureties contrary to the wishes of the prin-
cipal his relations will not be altered tbereby nor will any new re-
sponsibilities ^attach to him in consequence of it.^^
§ 6. Nature of Surety's Liability. — Whether a surety's liabil-
ity is a debt is a question not answered the same. It has been
held that the obligation of a surety or indorser is not a debt,^^ be-
cause 'the liability is contingent; and it is not a debt until the
29. Courtis v. Dennis, 7 Met. 81. See § 339.
(Mass.) 510. 32. Wimberly v. Windham, 104
In onlor to bind a surety gnaran- Ala. 409, 16 So. 23.
tjinsr payment of a check, it is un- 33. Wyman v. Jones, 58 Mo. App.
necessary to give him notice of a 313.
protest provided by Civ. Code 1895, 34. Whitehouse v. Hanson, 42 N.
§ 3088, as to indorsers of notes and H. 9.
bills of exchange. Preston v. Dozier 35. Hughes v. Littlefield, 18 Me.
(Ga. 1910), 68 S. E. 793. 400. See Talmage v. Burlingame, 9
80. Cowles V. Pick, 55 Conn. 251, Pa. St. 21.
10 Atl. 569; Beardsley v. Hawes, 71 36. May v. Hammond, 144 Mass.
Conn. 39, 40 Atl. 1043. 151, 10 N. E. 751.
11 Nature and Effect. § "
indorser is obliged to pay the iiote.^^ Hence, a surety on a note
not yet due, before payment by him, cannot claim his liaibility as
a debt which he may prove before the assignee of his principal, nor
will he be barred from his future action against his insolvent prin-
cipal, who has been discharged from bankruptcy."^
But there is another line of cases that hold that a surety's lia-
bility is a debt. .So a surety upon an official bond is a debtor.^* Be-
cause the word " debt " includes not only debts of record or judg-
ment, but also obligations arising under simple contracts to a very
wide extent; and it includes all that is due to a man under any
form of obligation or promise. Whatever the law orders any one
to pay, that becomes instantly a debt which he has beforehand con-
tracted to pay.*'' So a surety on a note who executes a mortgage
to the payee for securing payment of a note, is a debtor entitled
to have the value of the mortgage deducted from the whole debt.*^
So a devise to executors with authority to sell real estate of the
testator for the payment of his debts, applies as well to a joint and
several bond executed by him as surety for his co-obligators to any
other debts.*^ iSo where the condition in a chattel mortgage shows
that the mortgage was given to secure the mortgagee against liabil-
ity as an indorser for the mortgagor, the mortgage was given to
secure a debt of the mortgagor.*^
§ 7. Ignorance of Co-surety's Obligation. — It is wholly imma-
terial that sureties sign at different times and without any agree-
ment to become joint sureties. The law raised an implied promise
from the mutual relation of the parties. Hence, it follows that it
does not make any difference as to the right to claim contribution
that each of the sureties was ignorant tha't the other was bound
with him for the payment of the debt. Their liability exists, al-
though they are bound by distinct and separate instrimients. It is
sufficient if they are sureties for the same debt of a third person.''*
87. Frothingham v. Haley, 3 Mass. 41. Lanckton v. Wolcott, 6 Met.
168. (Mass.) ?05.
38. Paul V. Jones, 1 Term R. 599; 42. Berg v. Radcliff, 6 Johns. Ch.
Frost V. Carter, 1 Johns. Cas. 73. (N. Y.) 302.
See, also. State v. Gambs, 68 Mo. 43. Gilbert v. Vail, 60 Vt. 261, 266,
289; Eddy v. Heath, 31 Mo. 141. 14 Atl. 542.
39. Shane v. Francis, 30 Ind. 92. 44. Massachusetts.— Chaffee v.
40. Gray v. Bennett, 3 Met. (Mass.) Jones, 19 Pick. 260.
522.
§§ 8-10 Suretyship and Guaranty. 12
§ 8. Substitution of Sureties. — If one set of sureties has been
6iibstitnt(Ml for others whose liability has ceased, the former are
not liable on ihe last instrnment. A surety may pay and extinguish
the original obligation by his own note, and then be entitled to
contribution if the original obligation is paid and discharged by a
contribution from his co-sureties; but he would not be entitled to
new note of the principal and one of the sureties.''^ Thus, where
an insolvent principal and one of several sureties execrate 'their note
instead of a former note, the surety upon such new note cannot
have contribution of the old sureties on tJie old note.^^
§ g. Successive Bonds. — "Where sureties are discharged and
new sureties taken, the two sets of sureties become jointly liable
for a breach of the bond which accrued before discharge, and the
right of contribution exists as between co-sureties. The new bond
relates back, and the two sets of sureties are jointly liable for a
breach committed prior to the second execution.'*'
§ 10. Agreement as to Liability Among Sureties, — Co-sureties
may, by agreement among themselves, so far sever their unity of
interest and obligation as to determine the right of contribution.*^
A surety has the right to determine for himself on what condition
Aew York. — Schram v. Werner, 85 47. California. — Powell v. Powell,
Hun (N. Y.) 293, 32 N. Y. Supp. 995; 48 Cal. 234.
National Surety Co. v. Di Marsico, Illinois.— Morley v. Metamora, 78
55 Misc. R. 302, 105 N. Y. Supp. 272. 111. 394; Pinkstaff v. State, 59 111.
Oliio.— Robinson v. Boyd, 60 Ohio 148.
St. 57, 53 N. E. 494. Massachusetts. — Choate v. Arring-
Virginia.— Stovall v. Bank, 78 Va. ton, 116 Mass. 552.
188. Missouri. — State v. Berning, 74
England. — Craythorne v. Swin- Mo. 87.
burne, 14 Ves. 160. New York. — Schofield v. Church-
See § 3 herein as to co-sureties. ill, 72 N. Y. 565.
4-"i„ White V. Colton, 52 Ind. 372; See §§ 9, 168, 209, herein, as to lia-
Ballston v. Wood, 15 Iowa 160. bility to contribute on successive
See §§ 9, 168, 209, herein, as to lia- bonds,
bility to contribute on successive 48. Robertson v. Deatharge, 82 111.
bonds. 511.
40, Bell V. Boyd, 76 Tex. 133, 13 That surety may limit his liability,
S. W. 232; Tittle v. Bennett, 94 Ga. see § 77,
4('\ 21 S. E. 62; Chapman v. Garber, As to co-sureties limiting their
46 Neb. 16^ 64 N. W. 362. liability in different amounts, see §
205.
13' Nature and Effect. § 11
lie will become surety and to fix the nature of his liability as be-
tween himself and the prior maker; and by agreement be-
tween him and said principal, the liability of said subsequent signer
may be made that of all sureties for all the makers who have signed
before him/® If one surety, instead of uniting with the others,
siigTis as surety for the others, they have the right of contribution
against him. His right against tihem is not for contribution, but
for full indemnity.^^ And when the old note is superseded by a
new note made by the sureties, which is to be void if the old note
is paid, this is a renewal and not an independent indebtedness.^^
§ II. Grantee of Mortgaged Premises. — As between the
grantor, who is personally liable, and the grantee of mortgaged
premises, the grantee assuming the indebtedness, the grantee be^-
comes the principal and the grantor, surety, a surety for the pay-
ment of the debt, with a surety's right.
The purchaser who assumes the payment of a mortgage by agrees
ment when he buys the mortgaged land, takes upon himself the bur-
den of the debt or claim secured by the mortgage, and, as between
iiim and the grantor, he becomes the principal, and the grantor, or
mortgagor, a surety for tbe payment of the debt.^^
49, Baldwin v. Fleming, 90 Ind. Kansas. — Stephenson v. Elliott, 53
177. Kan. 550, 36 Pac. 980.
50. McDonald v. Magruder, 3 Pet. Maryland. — George v. Andrews, 60
(U. S.) 470, 7 L. Ed. 744; Hamilton Md. 26.
V. Johnston, 82 111. 39 ; Paul v. Berry, Massaclinsetts. — Rice v. Sanders,
78 111. 158; Craythorne V. Swinburne, 152 Mass. 108, 24 N. E. 1079, 8 L.
14 Ves. 164. R. A. 315n.
61. Merchants' Nat. Bank of Clin- Missouri. — Regan v. Williams, 185
ton V. Eyre, 107 Iowa 13, 77 N. W. Mo. 620, 84 S. W. 959; Pratt v. Con-
498; Pingrey on Mort., 868, 869. way, 148 Mo. 291, 49 S. W. 1028.
52. United States. — Union Mut. Life IVew Jersey. — Huyler v. Atwood, 26
Ins. Co. V. Hanford, 143 U. S. 187, 12 N. J. Eq. 504.
Sup. Ct. 437, 36 L. Ed. 118. ]Vew York.— Ayers v. Dixon, 78 N.
Connecticut.— See Chapman v. Y. 318; Cairo v. Davies, 73 N. Y. 211;
Beardsley, 31 Conn. 115. Comstock v. Drohan, 71 N. Y. 13;
Illinois. — Webster v. Fleming, 178 Wyson v. Meyer, 58 App. Div. 422, 69
111. 140. 52 N. E. 975; Flagg v. Gilt- N. Y. Supp 286.
maker, 98 111. 293. Oliio.— Poe v. Dixon, 60 Ohio St.
Indiana.— Oglebay v. Todd, 166 124, 54 N. E. 86.
Ind. 250, 76 N. E. 238; Ellis v. John-
son, 96 Ind. 177.
§ 11 Suretyship and Guaranty. 14:
And in such ease, if tlio mortgage is foreclosed and tte land sold
to pay the debt, leaving unpaid a portion thereof, which the grantor
pays, the latter cannot maintain an action for indemnity on the
recital in the deed, the promise therein not running to him, but
must resort to an action on tihe implied promise of indemnity which
arises in every instance when a surety pays the debt of his prin-
cipal, as for money paid for the use of the principal.^^ But as to
the holder of the note and mortgage, both grantor and grantee are
principals, and are liable to the creditor as such if he so desires.^^
Pennsyhania.— Cook v. Berry, 193 suretyship, but that for the purpose
Pa. St. '■ill, 44 Atl. 771. of working out equity and justice.
West Virgiuia. — Curry v. Hale, 15 the parties would be treated, in a
W. Va. 867. court of equity, as standing in a re-
Wisconsin. — Palmette v. Carey, 63 lation of suretyshp. Burlew, Adm'r,
Wis. 426, 21 N. W. 793, 23 N. W. 586. v. Smith, 68 W. Va. 458, 69 S. E.
See Pingrey on Mortg., 868, 869. 908.
Where the liability is not assumed Where a person executes a note
by the grantee he is regarded as a and a mortgage to secure its pay-
surety. Barnes v. Mott, 64 N. Y. ment and subsequently sells the real
397; Magill, Exec, v. Brown Bros., estate to one who assumes payment
20 Tex. Civ. App. 662, 50 S. W. 143, of the note, the payee is not bound
642. to look to the vendee as the prin-
The purchaser of a part of a tract cipal obligor merely because of a
of land flhich is subject to a ven- notice to that effect from the maker
dor's lien, who has purchased with of the note, it not appearing that the
notice of the lien and taken his title payee in any manner consented or
subject to it and without covenant agreed so to do. Witt v. Aurarilla
against it, but who has paid no part National Bank (Tex. Civ. App. 1911)»
of it, and is in no way personally 135 S. W. 1108.
liable for its payment, is in no sense 53. Arkansas. — Hill v. Wright, 2J
a surety for the payment of the lien. Ark. 530.
Lennig v. Harrisonburg Land & I. Massachusetts. — Appleton v. Bas-
Co., 107 Va. 458, 59 S. E. 400. com, 3 Mete. 169.
Where there was a vendor's lien New York. — Homes v. Weed, 19
against property which the vendee Barb. 128; Toon v. Goodrich, 2 Johns,
conveyed to another person upon his 213.
assumption of the purchase money Ohio. — Peo v. Dio, 60 Ohio St. 124,
debt, and which was subsequently 54 N. E. 86.
conveyed by said second purchaser England. — Huntley v. Sanderson, 1
to a third, in consideration of money Cr. & M. 467, 2 Barnard 26.
paid and notes executed by such 54. Jones v. Foster, 175 HI. 459,
third person, the second purchaser 51 N. E. 862; Union Mut. Life Ins.
covenanting to pay all taxes, liens Co. v. Hanford, 143 U. S. 187, 12 S.
and encumbrances, it was held that Ct. 437, 36 L. Ed. 118; Wilson v. Land'
there was no legal contract of
15
Nature and Effect.
1^
§ 12. Rights of Mortgagee — In Equity or in Law. — At law it
was formerly held that the contract of assumption by the pur-
chaser, being made with the mortgagor and for his benefit only,
creates no direct obligation of the purchaser to the mortgagee.^^
But it was held in equity that the mortgagee may avail himself of
the right of the mortgagor against the purchaser ; because in equity
a creditor shall have the benefit of any obligation or security given
by his principal to the surety for the payment of the debt.^^
In the United States the trend of the decisions is that the legal
effect of the transaction is to leave the portion of the purchase
money represented by the incumbrance in the hands of the pur-
chaser for the purpose of paying the indebtedness; the promise
being made for the benefit of the holder of the incumbrance, he may
maintain an action at law to enforce it. Hence, the mortgagee
may maintain an action at law tO' enforce the contract of assump-
tion of the mortgage debt by the grantee." And where several
Security Co., 26 Can. Sup. Ct. 149;
Forster v. Ivey, 32 Ont. 175.
According to the view which pre-
vails in Illinois and some other
States, a covenant to assume and
agree to pay the mortgaged debt by
the grantee is valid and may be en-
forced by the mortgagee against
him. But according to the New
York rule, which is followed in New
Jersey and some other States, such
covenant is construed to be a con-
tract of indemnity for the benefit of
the grantor, and where there is no
personal liability on the grantor
none passes to the grantee. For a
discussion of this subject, see McKay
T. Ward, 57 Utah 1024, 57 Pac. 1024.
55. Gandy v. Gandy, 30 Ch. Div.
57, 67; National Bank v. Grand
Lodge, 98 U. S. 123, 124, 25 L. Ed.
75.
56. Hampton v. Phipps, 108 U. S.
260, 263, 2 S. Ct. 622; Wright v. Mor-
ley, 11 Ves. 12, 22.
57. United States. — Union Mut.
Life Ins. Co. v. Hanford, 143 U. S.
187, 12 S. Ct. 437, 36 L. Ed. 118;
Keller v. Ashford, 133 U. S. 610, 10
S Ct. 494, 33 L. Ed. 667.
Kansas. — Anthony v. Herman, 14
Kan. 494.
Illinois. — Webster v. Fleming, 178
111. 140, 52 N. E. 870.
Iowa, — Lamb v. Tucker, 42 Iowa
118.
Maine. — Bohanan v. Pope, 42 Me.
93.
Minnesota. — Follanshee v. John-
son, 28 Minn. 311.
Nebraska. — Keedle v. Flack, 27
Neb. 836, 44 N. W. 34.
New Jersey. — Joslin v. Car Spring
Co., 36 N. J. L. 141.
New York. — Bowen v. Beck, 94 N.
Y. 86; Calvo v. Davies, 73 N. Y. 211.
Ohio. — Thompson v. Thompson, 4
Ohio St. 333.
Pennsylvania. — Townsend v. Long,
77 Pa. St. 143.
Wisconsin. — Bassett v. Hughep, 43
Wis. 319.
See Pingrey on Mort. 869.
§§ 13, 14 Suretyship and Guaranty. 16
mortgage debts are assumed each mortgagee may sue at law in a
separate action for his debt.''^
§ 13. The Mortgagee Must Assent. — But the mortgagee must
consent in order to make the grantee of the mortgaged premises
liable as principal and the mortgagor surety. Until acceptance by
the mortgagee, there is no privity of contract hetween him and the
grantee of the mortgaged premises.^^ So where the grantee ex-
pressly promises to pay the mortgage debt, that alone, without the
assent of the mortgagee, does not change the mortgagor into a
surety merely.^'' Whether the remedy of the mortgagee against the
grantee is at law, and in his own right, or in equity, in the right
of the mortgagor, must be determined hy the law of the place where
the suit is brought.''^
§ 14. Accommodation Indorser. — The relation of an accom-
modation indorser and the party accommodated is that of principal
and surety as between themselves,^^ It has been 'held by some
courts tha't an accommodation indorser is not within the statute
allowing a surety to require the creditor, in certain cases, to pro-
ceed against the principal, or in default thereof to lose his remedy
against the surety. '^ But in other jurisdictions 'this rule is not
adopted, and an accommodation indorser of a promissory note
stimds in the relation of surety for the maker for whose accom-
modation he became indorser, within the meaning of the statute in
58. Poe V. Dixon, 60 Ohio St. 124, 61. Union Mut. Life Ins. Co. v.
54 N. E. 86. Hanford, 143 U. S. 187, 12 S. Ct. 427,
59. Commercial Nat. Bank v. Kirk- 36 L. Ed. 118.
wood, 172 111. 563, 50 N. E. 219; 62. Hall v. Oberhellman, 23 Mo.
Union Mut. Life Ins. Co. v. Hanford, App. 336; Clason v. Morris, 10 Johns.
143 U. S. 187, 12 S. Ct. 437, 36 L. Ed. (N. Y.) 524; Bryant v. Rudisell, 4
118. See Webster v. Fleming, 178 Heisk. (Tenn.) 656; Sublett v. Mc-
111. 140, 52 N. E. 975. Kinney, 19 Tex. 438. See § 347.
60. Shepherd v. May, 115 U. S. 505, Wife held surety on husband's
6 S. Ct. 119, 29 L. Ed. 456; Keller v. notes. Solenberger v. Stickler's
Ajshford, 133 U. S. 610, 10 S. Ct. 494, Adm'r (Va.), 65 S. E. 566.
33 L. Ed. 667; Commercial Nat. Bank 6,3. Clark v. Barrett, 19 Mo. 39;
V. Kirkwood, 172 111. 563, 50 N. E. Bootsman's Sav. Bank v. Johnson, 20
219, '184 111. 139, 56 N. E. 405, over- Mo. App. 316.
ruling, in effect, on this point, Bay
V. Williams, 112 111. 91.
17 Nature and Effect. §§ 15, 16
relation to the remedies of sureties against the principals/'* And
a party who indorses a note either at the time of its final execution
and delivery or prior to any transfer thereof and before it is put
into circulation is held to be a surety on the note although he signed
it on the back instead of below the name of the maker on the face/^
Where a party gives his accommodation note to another in ex-
change for a like note of the latter to him, he is liable on his note
as a principal and not as a surety,^® but he may be a surety as be-
tween other parties/^
§ 15. The Acceptor of Drafts. — The acceptor of a bill and the
maker of a note are the principals, and the indorsers sureties/* By
the acceptance of a draft, the acceptor becomes, not merely the
surety for the drawer, but the principal debtor/*
§ 16. Indorser of Notes. — Each indorser upon bills of ex-
change or promissory notes is prima facie bound to indemnify each
subsequent party to the instrument, and has a right to be indem-
nified by each prior party thereto/**
'A regular blank indorsement on a negotiable promissory note
imports a legal obligation to pay the note in default of the maker,
after due diligence by the holder and due notice of the default to
the indorser primarily in the first indorser, and successively in the
following indorsers in their order/^ The acceptor or maker is the
principal debtor, and then the drawer and indorsers in the order
in which their names appear upon the instrument/^
An indorser of a promissory note, though in the nature of a
surety, is not entitled for all purposes to the privileges of that ohar-
64. Ward v. Stout, 32 111 399; Lacy v. Ebers, 1 Barn. & Ad. 703; In re
V. Loftus, 26 Ind. 324; Thompson v. Babcock, 3 Story (U. S.) 399.
Taylor, 72 N. Y. 32; Van Alstyne v. 69. Davis v. Baker, 71 Ga. 33;
Sorley, 32 Tex. 518. Marsh v. Low, 55 Ind 271; Fuller v.
65. Kisslre v. Plunkett-Jarrell Leonard, 27 La. Ann. 635.
Grocer Co. (Ark. 1912), 145 S. W. 70. McDonald v. Magruder, 3 Pet.
567. (U. S.) 470, 7 L. Ed. 744.
66. Newmarket Sav. Bank v. Han- 71. Sloan v. Gibbes, 56 S. C. 480,
son, 67 N. H. 501, 509, 32 Atl. 774. 35 S. E. 408, 76 Am. St. Rep. 559. Per
67. Whitney v. Hale, 67 N. H. 385, Mr. Justice Jones.
30 Atl. 417. See §§ 206, 347. 72. Ross v. Jones, 22 Wall. (U. S.)
68. Diversy v. Moor, 22 111. 331; 576, 593, 22 L. Ed. 730; Clark v. Dev-
Cornise v. Kellog'g, 20 111. 11; Yallop lin, 3 Bui. & P. 363.
o
§§ 17, 18 Suretyship and Guabanty. 18
acter, as he is answerable upon an independent contract, and it is
his duty to take up a note when it is dishonored J* There is, in
some respects, a resemblance between an indorser and a surety,
but in oithers there is none, as he does not in any case lose his char-
acter of indorser, nor can he be made liable on the note without
proof of due demand and notice.^*
§ 17. Notes Payable to Maker. — By the law merchant a party
indorsing a note payable to maker, who first indorses it, is not
merely a surety, but an indorsee, and entitled to demand noticeJ^
The Illinois statute, which provides that indorsers of notes made
payable to bearer, shall be held as guarantors of payment, does not
apply to notes payable to the maker's order and by him indorsed
in blank ;^® he is only a second indorser, and parol evidence is not
adinissible to show a different contract.'^^
5< 18. Pledging or Mortgaging Property to Secure Debt of An-
other Person. — When a third person pledges his property as secu-
ity for the payment of a debt or obligation of another, such
property will stand in the position of a surety of the debt."^ This
rule also applies to mortgages made by one person to secure the
debt of another.^^
73. Ellsworth v. Brewer, 11 Pick. 78. Price v. Bank, 114 111. 317.
(Mass.) 320. 79. Ryan v. Shawneetown, 14 111.
74. Bradford v. Corey, 5 Barb. (N. 20; Crawford v. Richeson, 101 111.
Y.) 462. See § 347. 351; Christner v. Brown, 16 Iowa
75. Field v. Newspaper Co., 21 La. 130; Burnap v. Bank, 95 N. Y. 125.
Ann. 24; Dubois v. Mason, 127 Mass. See Townsend v. Sullivan, 3 Cal.
37. App. 115, 84 Pac. 435.
76. Chicago Trust & Sav. Bank v. Husband held to be surety for wife
Nordgren, 157 111. 663, 42 N. E. 148. where both executed a mortgage and
77. Hately v. Pike, 162 111. 241, 44 gave a bond to secure payment for
N. E. 441. work done on wife's separate prop-
As to statute of frauds. Where a erty. Brown v. Mason, 55 App. Div.
person has parted with title to prop- (N. Y.) 395, 66 N. Y. Supp. 917; af-
erty in consideration of the promise firmed 170 N. Y. 584, 63 N. E. 1115.
of another to pay a certain note, the Mother held to be principal where
statute of frauds has no application, a mortgage was given by her as
as the debt thereby becomes the security for payment of a loan to
original obligation of the latter, her son. Casey v. Gibbons, 136 Cal.
Hawkins v. Western National Bank 368, 68 Pac. 1032.
(Tex. Civ. App. 1912), 145 S. W.
722.
19 Natuee and Effect. §§ 19, 20
§ ig. Mortgaging of Wife's Separate Property to Secure the
Debts of Her Husband. — In many of the States, if a wife mort-
gages her separate estate to secure her husband's debt, she becomes
a isurety only, and may demand such rights as a, surety could
claim.'*'* But the wife's rights are controlled by local statutes, which
differ greatly and must be consulted. In some of the States she
has the same rights as her husband as to disposition of property.
iShe has the same rights to contract as if she was sole.*^ In other
States she is prohibited from mortgaging her estate to secure her
husband's debt. 'And where it appeared from <the uncontradicted
evidence of the husband that he obtained money from a bank for
his own use on a note signed by his wife and himself, her name
being signed first and his name underneath her's as though she
was the principal and he was the surety, the fact being known to
the bank that 'the money was for him and not for her, it was held
that the transaction would be treated as a device to evade the
statute prohibiting a married woman from becoming surety for her
husband and that such note could not be enforced against the wife.^^
Under a statute providing that no part of a married woman's
estate shall be subjected to tihe payment of any debt of her hus-
band contracted after marriage, a married woman cannot be held
liable on a note signed by her as surety for her husband.^
§ 20. Dissolution of Partnership — One or More Partners As-
suming Partnership Debts. — After dissolution of the partnership,
and one or more assume the payment of the firm debts, releasing
the others, they stand as between themselves, principal and surety ;
the assuming partners become the principal and the retiring part-
ners the surety. So when one partner retires from the firm and
those remaining assmne the partnership debts, the retiring partner
becomes surety as between themselves, but his relation to the part-
80. Dibble v. Richardson, 171 N. 81. Worrell v. Forsyth, 141 III. 22,
Y. 131, 63 N. E. 829, reversing 72 N. 30 N. E. 673. See, also, Bank v. Cum-
Y. Supp 304; Bank v. Brown, 46 N. berland Lumber Co., 100 Tenn. 479,
Y. 170. 47 S. W. 85.
Estate of wife liable for debts of 82. Hart v. Bank of Russellville^
bankrupt husband for which she in- 32 Ky. Law Rep. 338, 105 S. W. 934.
curred liability as surety — action See, also. Planters' Bank v. Mayor,
of court to protect estate. See Al- 25 Ky. Law Rep. 702, 76 S. W. 331.
derson's Adm'r v. Alderson, 53 W. 83. Black v. McCarley's Ex'r, 31
Va. 388, 44 S. E. 313. Ky. Law Rep. 1198, 104 S. W. 1029.
21
SUKETYSHIP AND GuAEANTY,
20
nership creditors is not changed without their consent, and as to
them, he is still a principal with the others.^*,
§ 21. Partners or Principals Agreeing Among Themselves —
Effect on Creditors' Rights.— The great weight of authority is
that two or more principal debtors cannot, by agreement among
themselves, without consent of the creditor, so change the character
of the liability of one of them to such creditor, from principal to
surety, as to entitle him to demand from the creditor the treatment
of a surety for the debt. That is, a retiring partner or other prin-
cipal debtor cannot become a surety as, to the creditor by simply
informing him that his co-debtors have agreed that he shall be held
only as a surety.^''
84. United States.— Shepherd v.
May, 115 U. S. 505, 6 Sup. Ct. 119,
29 L. Ed. 456.
Alabama.— Hall v. Long, 56 Ala.
93.
Georgia.— Preston v. Garrard, 120
Ga. 689, 48 S. E. 118, 102 Am. St.
Rep. 124.
Illinois.— Moore v. Topliff, 107 111.
241; Cornwell v. McCowan, 81 111.
285.
Indiana. — Bays v. Conner, 105
Ind. 415, 5 N. E. 18.
Kansas.— Gillen v. Peters, 39 Kan.
489, 18 Pac. 613.
Micliigan.— Smith v. Shelden, 35
Mich. 42, 24 Am. Rep. 529.
Minnesota. — Lithauser v. Baumeis-
ter, 47 Minn. 151, 49 N. W. 660, 28
Am. St. Rep. 336; Wendlandt v.
Sohre, 37 I\Iinn. 162, 33 N. W. 700.
Missonri.— Skinner v. Hill, 32 Mo.
App. 409.
>'eYada. — Barker v. Gillson, 18
Nev. 89, 1 Pac. 452.
New York.— Sizer v. Ray, 87 N. Y.
220; Dodd v. Dreyfus, 17 Hun 600.
Ohio.— Butler v. Birkey, 13 Ohio
St. 514.
Pennsjirania. — Campbell v. Floyd,
153 Pa. St. 84, 25 Atl. 1033; Whittier
V. Gould, 8 Watts. 485.
Tennessee. — Bryan v. Henderson,
88 Tenn. 23, 12 S. W. 338.
Texas. — Shapleigh Hardware Co.
V. Wells, 90 Tex. 110, 37 S. W. 411;
Hall V. Johnston, Hill & Co., 6 Tex.
Civ. App. 110, 24 S. W. 861.
Virginia. — Buchanan v. Clark, 10
Gratt. 164.
Wisconsin. — Brill v. Hoile, 53 Wis.
537, 11 N. W. 42.
England. — Swire v. Boyers, 1 Q.
B. Div. 536.
85. United States. — Keller v. Ash-
ford, 133 U. S. 610, 10 S. Ct. 494, 33
L. Ed. 667; Shepherd v. May, 115 U.
S. 505, 6 S. Ct. 119, 29 L. Ed. 456.
AlaJiama. — Hall v. Long. 56 Ala.
493.
Illinois. — Commercial Nat. Bank
V. Kirkwood, 172 111. 563, 50 N. E.
219.
Missouri. — Skinner v. Hall, 32 Mo.
App. 409.
Ohio. — Rawson v. Taylor, 30 Ohio
St. 389.
Texas. — White v. Boone, 71 Tex.
712, 12 S. W. 51; Shapleigh Hard-
ware Co. V. Wells, 90 Tex. 110, 37
S. W. 411.
21 Nature and Effect. § ^1
However, there is a contrary doctrine, wihich holds that the
surety being made known to the creditor, imposes upon him the
obligation to treat him as surety from the time the information is
received. Hence, the principal obligors in a contract may by
agreement between themselves change the obligation of one or more
of them from that of principal debtor to that of surety, and upon
notice of such agreement to the obligee, the same effect will be
given as if the suretyship originated in the contract itself.*® Such
doctrine is unsound, and makes the creditor assent to a new con-
tract. And the chief justice, in Swire v. Redman^^ says there is
no English case which holds the doctrine that the agreement be-
tween partners themselves, without the consent of the creditor, can
change their relation to the latter; and that he has found no
American case that upholds such doctrine, except those based upon
the misinterpretation of Oakeley v. Parsheller^^ where the mem-
bers of a partnership execute a joint note and mortgage, the latter
being upon both the firm property and also the individual property
of one of the partners, the latter will be regarded not as a surety
merely, but as a joint principal, notwithstanding an indemnity
agreement given by the firm to such partner reciting that the debt
was a firm debt and that the individual property included in the
mortgage was merely used as collateral security and that the firm
would protect him from all loss by reason of thus using his prop-
erty.*»
West Virginia. — Barnes v. Boyers, Pennsylvania. — Campbell v. Floyd,
34 W. Va. 303. 153 Pa. St. 84, 25 Atl. 1033.
Wisconsin. — First National Bank Wisconsin. — Gates v. Hughes, 44
of Milwaukee v. Frick, 100 Wis. 446, Wis. 332.
76 N. W. 608. England.— Overend v. Financial
England. — Swire v. Redman, 1 Q. Corps, L. R. 7 H. L. 348; Oakeley
B. D. 536. V. Parsheller, 4 Ch. & Fr. 207, 10
See Story on Part., 158; Lindley ^^is^i N. S. 548; Rouse v. Banking
on Part., 295; Parsons on Part. (3d Co. (1894), App. Cas. 586.
Ed.), 428. Ireland.— RIanigay v. Lewis, 5 Ir.
86. Indiana,— Williams v. Boyd, 78 ^eP. C. L. 229, 231.
Ind. 286. 87. 1 Q. B. D. 536.
Michigan.— Smith v. Sheldon, 35 S8. 4 Ch. & Fr. 207; 10 Bligh N. S.
Mich. 49. 548.
New York. — Colgrove v. TallmaJi, 89. Chandler v. Kyle (Ala. 1912),
67 N. Y. 90. 57 So. 475.
§§ 22, 23 SuKETYSJiir axd Guajbanty. 22
§ 22. Joint Contract. — Where a joint contract is made by two
or more parties for u joint debt, each is principal for his share of
the debt and co-surety for the otiher part. Thus, where a note is
signed by three persons as joint makers, each is principal for one-
third of 'the debt and co-surety for tiie other two-thirds.^** In such
case tliere exists between the parties privity of contract, which
arises between sureties and their principals. Between themselves
each is principal for the performance of the contract so far as re-
lates to himself, and surety for his co-principal that he will duly
perform.^^
Wliere a joint and several note is given to a payee, the makers
are jointly and severally bound for its entire amount ; all are prin-
cipal debtors. As between the makers, each is principal for his
share, and is bound to pay it, and surety for the remainder.^" Thus,
where several parties borrow a sum of money which they share
among themselves, and execute their joint note to the payee for the
total amount, as between themselves, each is principal for the
■amount he receives, and surety as to tlie remainder.^^
§ 23. Joint Executors and Administrators. — The general rule
is that a co-executor or administrator may act either separately
or in conjunction. They are jointly responsible for joint acts, and
leach is separately answerable for his separate act and defaults.^*
In some States, however, the rule is different, and an executor or
administrator is liable for the defaults of his co-executor or co-ad-
ministrator.'^^ But these cases were decided upon questions of lia-
bility outside of the bond.^""
90. Goodall v. Wentworth, 20 Me. 95. Connecticut. — Babcock v. Hub-
322. bard, 2 Conn. 536.
91. Hatch V. Peyton, 36 Me. 419. Massachusetts. — Ames v. Arm-
92. Owen v. McGehee, 61 Ala. 440; strong, 106 Mass. 15; Towne v.
Chapman v. Morrill, 20 Cal. 130; Ammidown, 20 Pick. 535; Brazier v.
Fletcher v. Grover, 11 N. H. 368; Clark, 5 Pick. 96.
Seitzler v. Mishler, 37 Pa. St. 82. Mississippi. — Jeffries v. Lawson,
93. Bank v. Clare, 76 Tex. 47, 13 39 Miss. 791.
S. W. 183; Hall v. Hall, 34 Ind. 314. New Hampshire. — Newton v. New-
94. State v. Wyant, 67 Ind. 25; ton, 53 N. H. 537.
Bruen v. Gillet, 115 N. Y. 10, 21 N. Pennsjiyania.— Boyd v. Boyd, 1
E. 676; Nauz v. Oakley, 120 N. Y. Watts 365.
S4, 24 N. E. 306. Virginia, — Casker v. Harrison, 76
Va. 85.
23 The Pakties. § 24
CHAPTER II.
THE PARTIES.
Section 24. Infants.
25. Insane Persons.
26. Partnership.
27. Attorneys-at-Law — Sureties for Their Clients — Statutory
Prohibitions.
28. Corporations.
29. National Banks.
30. Ultra Vires Contracts.
31. Implied Power to Become Surety.
32. Principal Under Duress.
33. Non-residents.
34. Surety and Guaranty Companies Generally.
§ 24. Infants. — An infant's liability as surety does not differ
from his other business contracts. So a contract of a minor as
surety is not necessarily void, but voidable, and he may affirm the
contract upon reaching his majority. This is the general rule,
though the United States (Supreme Court has decided that an in-
fant's contract is voidable only, unless it appears upon its face to
be to his prejudice, in which case it may be void.^ But the de-
cision on that point was not necessary and must be considered a
dictum.
The general rule is that a contract of surety by an infant is
voidable only, and may 'be affirmed by him when he arrives at his
legal majority, and then if affirmed it may be enforced,^ or on the
other hand he may repudiate it.^
1. MacGreal v. Taylor, 167 U. S. New York.— See Fonda v. Van
€88, 17 S. Ct. 961, 42 L. Ed. 326. Home, 15 Wend. 631.
2. Connecticut. — See Maples v. Oliio. — Horner v. Dipple, 31 Ohio
Wightman, 4 Conn. 376, 10 Am Dec. St. 72, 27 Am. Rep. 490.
149. Pennsjivania, — Hinely v. Magor-
Illinois.— See Keil v. Healey, 84 itz, 3 Pa. St. 428.
111. 104; Cole v. Pennoyer, 14 111. South Carolina.— See State v. Sat-
158. terwhite, 20 S. C. 536.
Indiana. — Fetrow v. Wiseman, 40 Vermont, — Reed v. Lane, 61 Vt.
Ind. 148. 481, 17 Atl. 796; Patchin v. Cromack,
Massachusetts. — Owen v. Long, 13 Vt. 330.
112 Mass. 403; Nightingale v. With- Virginia, — See Allen v. Minor, 2
ington, 15 Mass. 272, 8 Am. Dec. 101. Call. 70.
§ 25 Suretyship and Guaranty. 24
In a recent case it is decided .that a minor may by his own fraud
estop himself from avoiding a contract on the ground of infancy
but that, except perhaps in some extreme cases, he cannot do so
unless he had actual, though not legal, discretion, and was guilty
of actual fraud, as by express representation of capacity to contract,
inducing the other party to enter into the agreement, nor unless
the contract was beneficial to the minor. In this case it was held
that a minor was not, however, estopped, even by actual fraud, from
avoiding a contract not beneficial to him, as in the case of his hav-
ing become a mere surety or accommodation maker of a promissory
note.*
§ 25. Insane Persons. — The general doctrine is that contracts
of insane persons are not binding in law or equity.^ But to this
there should be a qualification : A contract made by an insane per-
son before he is adjudged insane is not void, but voidable only.**
In Iowa it is held that a person of unsound mind who becomes
surety on a note for an antecedent debt, is not liable thereon, even
though the person taking the note had no knowledge that the
surety's mind was unsound.^
The same rules apply to a surety who is insane as to his other
contracts.
Signing of bond not ratification of App. Div. (N. Y.) 848, 116 N. Y. Supp.
promise to pay. The signing a bond 437.
to release merchandise from attach- 3. Sanger v. Hibbard, 104 Fed. 455,
ment at the suit of the vendor is not 43 C. C. A. 635; Holland v. Colton
a ratification of a promise to pay State Bank, 20 S. D. 325, 106 N. W.
made while a minor. Lamkin v. Le 60.
Doux, 101 Me. 581, 64 Atl. 1048. Sureties are not released by in-
Bond to minor — Sale of property fancy of co-surety. Mills v. Evans,
and dirision of proceeds. In Ken- 18 Ky. Law Rep. 1067, 38 S. W. 1090.
tucky, where a sale of real property 4. Grauman, Marx & Kline Co. v.
is made under § 490 of the Code for Krienitz, 142 Wis. 556, 126 N. W. 50.
a sale of property and a division of 5. Seavers v. Phelps, 11 Pick.
proceeds among the owners, the (Mass.) 304.
bond to infants required by §493 need Contract as surety void. Edwards
not be given as by § 497 in such v. Davenport (U. S. C. C), 20 Fed.
actions the share of the infant shall 756.
remain a lien on the land. Powell 6. Burnham v. Kidwell, 113 111.
V. Baer, 143 Ky. 282, 136 S. W. 629. 425; Somers v. Pumphrey, 24 Ind.
Liability on bond for obligation of 231; Ingraham v. Baldwin, 9 N. Y.
infant, see President and Fellows of 45.
Harvard College v. Kempner, 131 7. Van Patton v. Beals, 46 Iowa 62.
25
The Parties.
26
§ 26. Partnership. — The law is well settled that a partner has
no authority by virtue of the partnersliip relation to sign the firm's
name for any purpose not embraced in the partnership business ;
so he cannot, without express authority from his firm, bind it as
guarantor or surety, if such transaction is not within the course
of partnership dealings.*^ The authority of one partner to bind
8. Alabama. — Rolston v. Click, 1
Stew. 526.
Colorado. — Lewin v. Barry, 15
Colo. App. 461, 63 Pac. 121.
Delaware. — Maybery v. Bainton,
2 Harr. 24.
Georgia. — Burden v. Bekle, 3 Ga.
App. 97, 59 S. E. 315.
Illinois. — Davis v. Blackwell, 5 111.
App. 32; Marsh v. Bank, 2 111. App.
217.
Kansas. — McCormick Harvesting
Mach. Co. V Reiner, 4 Kan. App. 725,
46 Pac. 539.
Massachusetts. — Sw^eetzer v.
French, 2 Cush. 309.
Minnesota. — Osborne & Co. v.
Stone, 30 Minn. 25, 13 N. W. 922.
Mississippi. — Langan v. Hewett, 13
Sm. & M. 122.
Oregon. — Charman v. McLane, 1
Ore. 339.
PennsylTania. — McQuemans v.
Hamlin, 35 Pa. St. 517.
West Virginia. — Tompkina v.
Woodyard, 5 W. Va. 216.
Wisconsin. — Avery v. Roveell, 59
Wis. 82, 17 N. W. 875.
England. — Brettel v. Williams, 4
Exch. 623.
A partnership is not bound by the
indorsement of a note in the firm
name by one of the partners for the
purpose of accommodation or surety
w^ithout the consent of the other
partners.
United States. — Bank of Fort Mad-
ison V. Alden, 129 U. S. 372, 9 Sup.
Ct. 332, 32 L. Ed. 725.
Alabama. — Lang's Heirs v. War-
ing, 17 Ala. 145.
Connecticut. — New York Firemen's
Ins. Co. V. Bennett, 5 Conn. 574, 13
Am. Dec. 109.
District of Columbia. — Presbey v.
Thomas, 1 App. D. C. 171.
Iowa. — Whitmore v. Adams, 17
Iowa 567.
Kentucky. — Chenowith v. Cham-
berlin, 6 B. Mon. 60, 43 Am. Dec.
145.
Mississippi. — Persons v. Oldfield
(Miss. 1912), 57 So. 417; Andrews v.
Planters' Bank, 7 Sm. & M. 192, 45
Am. Dec. 300.
New York.— Smith v. Weston, 88
Hun 25, 34 N. Y. Supp. 557; Laverty
v. Burr, 1 Wend. 529; Foot v. Sabin,
19 Johm. 154, 10 Am. Dec. 208.
Tennessee. — See Pooley v. Whit-
more, 10 Heisk. 629, 27 Am. Rep. 733.
To bind firm partner must have
express authority under seal, or the
other partners must be present at
the act and thereto authorize him,
or thereafter ratifiy the act by
writing under seal. Gordon v. Funk-
houses, 100 Va. 675, 42 S. E. 677.
An appeal bond signed by one of
the partners held to be a partner-
ship contract. Tate v. Holly (Colo.
App. 1912), 122 Pac. 58.
Proving authority of partner to
sign firm name. Where one of two
partners subscribes the partnership
name to a note as surety for a third
person without the authority or con-
sent of the other partner, the latter
is not bound, and it lies upon the
§ 26
SuRETYSIilP Ax\D GUAHANTY.
26
his co-partner is placed solely upon the ground of agency and hence
one can bind the other only within the scope of the agency.* And
it is said to be well settled law that on the principle of agency, the
power of a partner to bind his co-partners is limited to the objects
and ordinary necessities of the firm.^^ So an agreement by one
of the partners of a practicing law firm, in the name of his firm,
to save a surety harmless if he would execute a bond in a case in
which the firm was engaged, being outside the scope of the partner-
ship business is not binding on a partner who did not authorize
or ratify the signature." And where a partnership was engaged
in the lumber business the signing of a builder's bond was not one
of the objects of the partnership nor an ordinary necessity to the
partnership and not within the power of one of the partners.^^
Each partner, however, is held to be the general agent of the
firm and to have authority to bind it by a contract of guaranty, if
such contract is within its scope of business and no understanding
(between the partners can affect the right of the guarantee to re-
cover.^* And a partnership which was not originally bound by the
plaintiff to prove the authority or
consent of the other partner. Per-
sons V. Oldfield (Miss. 1912), 57 So.
417, citing Andrews v. Planters'
Bank, 7 Sm. & M. 192, 45 Am. Dec.
300; Bloom v. Helm, 53 Miss. 21.
The right of a partner to sign the
firm name to a contract of indemnity
In favor of third persons must be
strictly proved; but it need not nec-
essarily be proved by written au-
thority to him. Moran v. Prather, 23
Wall. (U. S.) 492, 23 L. Ed. 121.
When partners bound both as
I)rinoii)als and liulhiduallj. Where
a partnership had been appointed
agents of an insurance company and
the bond was executed as princi-
pals by the partners individually
and in the partnership name, it was
decided that the partners thus ap-
pointed agents were individual prin-
cipals, against the dishonest acts of
either or all of whom the surety
company undertook to indemnify the
insurance company. United States
Fidelity & Guaranty Co. v. Sexton,
134 Ga. 56, 67 S. E. 449.
9. Persons v. Oldfield (Miss. 1912),
57 So. 417.
10. Kneisley Lumber Co. v. Stod-
dard Co., 131 Mo. App. 15, 109 S. W.
840, citing Brandt on Surety and
Guar., § 27; 22 Am. & Eng. Encyc.
of Law (2d Ed.), p. 144.
11. Leeberger v. Wyman, 108 Iowa
527, 79 N. W. 290; Examine, Fornes
& Co. V. Wright, 91 Iowa 392, 59 N.
W. 51.
12. Kneisley Lumber Co. v. Stod-
dard Co.. 131 Mo. App. 15, 109 S. W.
840.
13. First National Bank of Du-
buque V. Carpenter, Stibbs & Co., 41
Iowa 518.
Where one endorsed a note at the
request of a member of a firm, for
the purpose of obtaining money for
the use of the firm, and the proceeds
were so used, the endorser upon
27 The Parties. § 27.
act of a partner in signing the firm name to a contract of surety-
ship, guaranty or accommodation indorsement may subsequently
ratify such unauthorized act.^*
§ 27. Attorneys-at-Law — Sureties for Their Clients — Statu-
tory Prohibition. — In many of the States it is declared by statute
that an attorney-at-law shall no>t become surety for his client, but
if he does become surety, he will be liable.^^ So if a judge become
surety on an official bond, which action is contrary to statute, yet
he will be bound, as such statutes are only directory.^®
In Wisconsin an attorney does not become liable when he be-
comes surety for his client, contrary to statute." In the absence
of statutory provisions an attorney may legally become a surety
for his client.-^^
The rule of court prohibiting attorneys from being sureties for
their clients in a legal proceeding extends only to bail for the ap-
pearance of tho parties arrested, and does not apply to their being
surety for costs.^^ If the attorney becomes surety in violation of
the statute or rule of court, it does not relieve him of liability as
a surety, because he cannot take advantage of his own wrong when
payment of the note, can recover County v. Findley, 101 Mo. 368, 14
therefor against the firm, though no S W. ]11; Hicks v. Chouteau, 12
member of such firm signed the note. Mo. 341.
Springs v. McCoy, 122 N. C. 628, 29 Nebraska.— Tessier v. Crowley, 17
S. E. 903. Neb. 207, 22 N. W. 422.
14. Burden v. Dekle, 3 Ga. App. Ohio.— Wallace v. Scoles, 6 Ohio
97, 59 S. E. 315; Crawford v. Ster- 429.
ling, 4 Esp. 207. England.— Harper v. Tahourdln, 6
15. Illinois.— See Jack v. People, M. & Sel. 383.
19 111. 57. 17. Cothren v. Connaughton, 24
lOTva.— Cuppy v. Coffman, 82 Iowa Wis. 134; Gilback v. Stephenson, 30
214, 47 N. W. 1036; Wright v. Wis. 155. See, also, Fond du Lac v.
Schmidt, 47 Iowa 233. Moore, 58 Wis. 170, 15 N. W. 782.
South Dakota. — Towle v. Bradley, 18. Walker v. Holmes, 22 Wend.
2 S. Dak. 472. (N. Y.) 614; Abbott v. Zeigler, 9 Ind.
Wisconsin. — Gilbank v. Stephen- 511.
8on, 30 Wis. 155. 19. Jones v. Savage, 10 Daly (N.
16. Kansas. — Sherman v. State, 4 Y.) 621; Sigourney v. Waddle, 9
Kan. 570. Paige (N. Y.) 381; Coster v. Watson,
Indiana.— Ohio, etc., R. R. Co. v. 15 Johns. (N. Y.) 535. See, also.
Hardy, 64 Ind. 454. Stark v. Small, 72 Wis. 215, 39 N. W.
Missonri. — State ex rel. Howell 359.
§ i^y ISUKETYSHIP AND GuAEANTY. 28-
sued upon the undertaking.'" But tlie proceedings may ^ be dis-
missed when the statute or rule of court has been violated/^ or the
court may hold the attorney in contempt of court when in opposi-
tion to rule f or the court may allow the bond to be amended and
made sufficient.'^
§ 28. Corporations.— The general rule is that a corporation
has those rights to contract which are given it by its charter, or act
of creation. A private corporation may borrow money, and be-
come a party to negotiable paper in the transaction of its legitimate
business, unless expressly prohibited; and until the contrary is
shown, the legal presumption is that its acts in that behalf are done
20. Illicois. Jack v. People, 19 legitimate course of its business,
jjj 5Y and, whether so executed or not, will
Indiana. Ohio, etc., R. R. Co. v. be valid in the hands of a bona fide
Hardy, 64 Ind. 454. holder without notice." Knapp &
lo-vva.— Wright v. Schmidt, 47 Iowa Co. v. Tidewater Coal Co. (Conn.
233 1912), 81 Atl. 1063, citing Daniels on
Kansas. Cook v. Caroway, 29 Negotiable Instruments, § 386.
j^^jj 4]^ Presumption as to use of money
Kentucky.— Holandworth v. Com- borrowed. Where a note is signed
monwealth, 11 Bush. 617. by a member of a corporation as
Massachusetts,— Morrill v. Lam- surety for the purpose of borrowing
son 138 IVIass. 115. money, it will be conclusively pre-
Sebraska. — Tessier v. Crowley, 17 sumed that he signed the note to the
Neb. 207, 22 N. W. 422. end that the money should be paid
Qjiio, Wallace v. Scoles, 6 Ohio into the corporation treasury and
429 then be disbursed according to the
IVisconsin. Fond du Lac v. by-laws for the transaction of cor-
Moore, 58 Wis. 170, 15 N. W. 782. porate business. Hughes v. Ladd,
21. Love V. Shiffelin, 7 Fla. 40; 42 Ore. 123, 69 Pac. 548.
Massie v. Maun, 17 Iowa 131; Gil- Presumption from corporate seal.
bank v. Stephenson, 30 Wis. 155. The seal of a corporation affixed to
22. Abbott V. Zeigler, 9 Ind. 511; a written instrument executed by its
Ohio, etc., R. R. Co. v. Hardy, 6 Ohio officers in the business of the cor-
455 poration imports and raises the pre-
23. Branger v. Buttrick, 30 Wis. sumption that they were duly au-
253_ thorized to execute the instrument.
Presumption as to corporation Gay v. Hudson River Electric Power
paper. "When a corporation has Co. (U. S. C. C), 190 Fed. 773.
the general power, express or im- A prnaranty given as part of the
plied, to be a party to bills and consideration for the purchase of
notes, such instruments will be pre- the stock of another corporation held
sumed to have been executed in the not ultra vires, the corporation In
29 The Parties. § 28
in the regular course of its business.^* So where a corporation is
authorized by statute to guarantee the bonds of another corpora-
tion " in pursuance of a unanimous vote of its stockholders " and
there is a recital in the guarantee that such corporation " has
voted and agreed to indorse and guarantee the payment of the
initial bond and all other bonds of the same series " it will be
presumed, in the absence of proof to the contrary, that the guar-
anty was duly and legally authorized and executed.^* And a rail-
road corporation is responsible in its corporate capacity for acts
done by its agent, either ex coiitractu or ex delicto, in the course
of its business and within the scope of the agent's authority.^® But
though it appears that an officer of a corporation not authorized
to issue negotiable paper had made other accommodation notes like
the one in suit, that fact alone is held not sufficient to charge the
corporation with liability on the paper as a matter of law." Cor-
making the purchase having acted An officer of a corporation has no
under authority of a statute permit- such power unless giyen. Pelton v.
ting it to make such purchase. Spider Lake Sawmill & Lumber Co.,
Windmiller v. Howard Distilling & 117 Wis. 569, 94 N. W. 293, 98 Am.
Distributing Co., 106 App. Div. (N. St. Rep. 946.
Y.) 246, 94 N. Y. Supp. 52, affirmed A manager of a corporation has
186 N. Y. 572, 79 N. E. 1119. no implied authority to sign its name
24. Canal Co. v. Vallette, 21 How. as an accommodation endorser,
(U. S.) 424, 16 L. Ed. 154; Farnum V. surety or guarantor. Haupt v.
Blackston, 1 Sumner (U. S.) 46. Vint, 68 W. Va. 657, 70 S. E. 702.
25. Gay v. Hudson River Electric See, also, Simmons National Bank v.
Power Co. (U. S. C. C), 190 Fed. Dilley Foundry Co., 95 Ark. 368,130
773. S. W. 162.
26. Railroad Co. v. Quigley, 21 The cashier of a bank is the
How. (U. S.) 202, 16 L. Ed. 73. proper officer to execute a bond on
27. Jacobs v. Jamestown Mantel its behalf to secure a deposit of pub-
Co., 149 App. Dlv. (N. Y.) 356, 134 N. lie money made therein, and the
Y. Supp. 418, holding that the mere bank will be bound by such execu-
fact that a negotiable instrument is tion, in the absence of some rule or
signed by an officer of a corporation regulation adopted by the directors:
does not of itself prove his authority or stockholders requiring special
to issue the instrument. Compare authority on the part of the cashier
Chicago & M. Telegraph Co. v. Type to execute such bonds, and notice of
Telegraph Co., 137 111. App. 131, such fact brought to the attention of
holding that continued acquiescence the obligee therein. Johnson County
in acts of officer in executing guar- v. Chamberlain Banking House, 80
anty in question and receipt of bene- Neb. 96, 113 N. W. 1055.
fits thereunder estops corporation Liability of officer of corporatioTi,
to assert act to be ultra vires. Where an officer of a corporation
§ 28
Suretyship and Guaeanty.
30
porations, as much as individuals, are bound to act in good faith
and fair dealing, and the rule is well settled that they cannot, by
acts, re/preseuitations or silence, involve others in onerous engage-
ments and then turn round and disavow their acts and defeat just
obligations which their own conduct has superinduced."^ So when
a .State gives a railroad corporation power to guarantee bonds is-
sued by towns and cities along the line for_the benefit of the road,
such guaranty is valid.^^ But unless the corporation has legal au-
thority to guarantee such bonds, or to guarantee future dividends,
such action by the corporation will be ultra vires, and is invalid.^'*
Ordinarily the simple act of becoming an accommodation in-
dorser or a surety or guarantor for the contract debt of a person
or corporation is not within the implied powers of a corporation.^^
endorses accommodation paper in
the corporate name through a mis-
take of law as to the capacity of the
corporation to bind itself by such a
contract, the fact that the corpora-
tion cannot be bound is no grouna
for charging the agent, whose con-
nection with the attempt to make
the contract was obviously in his
capacity as agent. Wolfe & Sons v.
McKeon (Ala. 1911), 57 So. 63.
28. Bargate v. Shortridge, 5 H. L.
Cas. 297; Zabriskie v. Railroad Co.,
23 How. (U. S.) 397, 16 L. Ed. 488.
29. Railroad Co. v. Howard, 7
Wall. (U. S.) 392, 19 L. Ed. 117.
30. Elevator Co. v. Memphis & C.
R. Co., 85 Tenn. 703, 5 S. W. 52.
SI. United States.— Ward v. Jos-
lin, 186 U. S. 142, 46 L. Ed. 1093, 22
Sup. Ct. 807, affirming 105 Fed. 224,
44 C. C. A. 456; Pennsylvania R. Co.
V. St. Louis, A. & T. H. R. Co., 118
U. S. 290, 30 L. Ed. 83, 6 Sup. Ct.
1094; Louisville, etc., R. R. Co. v.
Imp. R. R. Co., 69 Fed. 433.
AIa])ania.— Wolfe & Sons v. Mc-
Keon (Ala. 1911), 57 So. 63.
Arkansas. — Simmons National
r-nk V. Dilley Foundry Co., 95 Ark.
368, 130 S. W. 162.
Connecticut. — Knapp & Co. v.
Tidewater Coal Co. (Conn. 1912), 81
Atl. 1063; Aetna National Bank v.
Ins. Co., 50 Conn. 167.
Illinois. — Best Brewing Co. v.
Klassen, 185 111. 37, 57 N. E. 20;
Pick V. Ellinger, 66 111. App. 570.
Iowa. — Twiss V. Guaranty Life
Ass'n, 87 Iowa 733, 55 N. W. 8;
Lucas V. White Line Transfer Co.,
70 Iowa 541, 30 N. W. 771.
Louisiana. — Robert Gair Co. v".
Columbia Rice Packing Co., 124 La.
193, 50 So. 8.
Michig^an.— Knickerbocker v. Wil-
cox, 83 Mich. 200, 47 N. W. 123.
New Hampshire. — Norton v. Bank,
61 N. H. 589.
New Jersey. — Owen & Co. v.
Storms & Co., 78 N. J. L. 154, 72 Atl.
441; Blake v. Domestic Mfg. Co., 64
N. J. Eq. 480, 38 Atl. 241.
New York. — Jacobus v. James-
town Mantel Co., 149 App. Div. 356,
134 N. Y. Supp. 418; National Bank
of Newport v. Snyder Mfg. Co., 117
App. Div. 370, 102 N. Y. Supp. 478;
Fox V. Rural Home Co., 90 Hun 365,
35 N. Y. Supp. 896, affirmed 157 N. Y.
684, 51 N. E. 1090; Carlaftes v. Gold-
meyer Co., 72 Misc. R. 75, 129 N. Y.
31
The Parties.
2^
§ 29. National Banks. — National banks possess only such
powers as are expressly conferred upon them by the act of Congress.
under whieh they are organized, and no power is given them to en-
iter into contracts of surety in which they have no interesit.^^ Thus,
a national bank has no legal power to guarantee a contract between
third persons for the delivery of building material.^ But when it
is in the course of its ordinary business, it may guarantee payment
of a note which it indorses for tJie purpose of transfer.^* But a
bank cannot as such become a surety upon a bond, and cannot have
any understanding or make a contract except as its proper officers
shall make the promise in the line of its powers; hence, sureties
upon a public officer's bond executed in pursuance of an under-
standing tihat public funds would be deposited in the bank repre-
sented by them and interest be paid thereon to the officer, are
parties to such illegal arrangement, which cannot be treated as
having been made with the bank as a corporate entity, so as to
leave the sureties untainted with the transaction, and its illegality
will prevent them from enforcing under such contract indemnity
against the defaulting principal.^^
Supp. 396; Filon v. Brewing Co., 38
N. Y. St. Rep. 602, 15 N. Y. Supp. 57.
Pennsjlyania. — Culver v. Real Es-
tate Co., 91 Pa. St. 376.
Rhode Island. — Cook v. American
Tubing & Webbing Co., 28 R. I. 41,
65 Atl. 641.
Texas.— North Side R. R. Co. v.
Worthington, 88 Tex. 562; Waller v.
German Mercantile Co. (Civ. App.
1911), 141 S. W. 833; Bowman Lum-
ber Co. V. Pierson (Civ. App. 1911),
139 S. W. 618; Deaton Grocery Co. v.
International Harvester Co. (Civ.
App. 1907), 105 S. W. 556.
Wasliiugton. — Spencer v. Alki
Point Transp. Co. (Wash. 1910), 101
Pac. 509.
West Virginia. — Haupt v. Vint, 68
W. Va. 657, 70 S. E. 702.
Wisconsin. — Madison, etc.. Plank
Road Co. v. Plank Road Co., 7 Wis.
59.
England.— Coleman v. Railroad
Co., 10 Beav. 1.
No po^er to become surety on ap-
peal bonds. Best Brewing Co. v.
Klassen, 185 111. 37, 57 N. E. 20, 50
L. R. A. 765, 76 Am. St. Rep. 26; Kel-
ley, Maus & Co. v. O'Brien Varnish
Co., 90 111. App. 287.
32. United States. — Bullard v.
Bank, 18 Wall. 589, 21 L. Ed. 923.
Michigan. — Knickerbocker v. Wil-
cox, 83 Mich. 200, 47 N. W. 123.
Missouri. — Matthews v. Skinker,
62 Mo. 329.
Pennsylvania. — Bank v. Hock, 89
Pa. St. 324.
Vermont. — Wiley v. Bank, 47 Vt.
546.
33. Norton v. Bank, 51 N. H. 589.
34. People's Bank v. Bank, 101 U.
S. 181, 25 L. Ed. 907.
35. Ramsay's Estate v. Whitbeck,.
183 111. 550, 56 N. E. 322.
§ 30
Suretyship and Guaranty.
32
Ultra Vires Contracts. — Executory contracts of corpora-
*^ 'So a com-
sureties are as a general rule void.
§30.
tions to act as
pany incorporated for the purpose of buying lands at tax sale, to
buy and sell real estate, borrow and loan money on mortgages, trust
deeds and other securities and >to purchase notes, bonds, bills and
other choses in action has no authority to execute surety bonds and
its acts in so doing are ultra vires.^'^ But some decisions hold that
a corporation may become a surety and the contract enforced if it
results in increasing the trade or business of the corporation, and
36. United States.— In re Liquor
Dealers' Supply Co., 177 Fed. 197,
101 C. C. A. 367; Mapes v. German
Bank of Tilden, 176 Fed. 89, 99 C. C.
A. 609.
Alabama. — First National Bank of
Gadsden v. Winchester, 119 Ala. 168,
24 So. 351.
Colorado. — Eagan v. Mahoney
(Colo. App. 1912), 121 Pac. 108.
Georgia. — Hauser v. Farmers' Sup-
ply Co., 6 Ga. App. 102, 64 S. E. 293.
Illinois. — Rogers v. Jewell Belting
Co., 184 111. 574, 56 N. E. 1117, re-
versing 84 111. App. 249.
lo-iva. — Twiss v. Guaranty Life As-
sociation, 87 Iowa 733, 55 N. W. 8.
Maryland. — Hadaway v. Hynson,
89 Md. 305, 43 Atl. 806.
Missouri.— Ellett-Kendall Co. v.
"Western Stores Co., 132 Mo. App.
513, 112 S. W. 4.
PennsjiTsinia. — Culver v. Real Es-
tate Co., 91 Pa. St. 367.
Texas. — INIorgan & Bros. v. Mis-
souri, K. & T. Ry. Co. (Tex. Civ. App.
1908), 110 S. W. 978.
See, also, cases cited in § 28.
Si?jning: negotiable paper for ac-
commodation is ultra vires.
United States. — Park Hotel Co. v.
Fourth National Bank, 86 Fed. 743,
SO C. C. A. 409; Lyon, Potter & Co.
T. First National Bank, 85 Fed. 120,
29 C. C. A. 45.
Alabama. — Steiner v. Steiner Land
& Lumber Co., 120 Ala. 128, 26 So.
494.
Arkansas. — Simmons National
Bank v. Dilley Foundry Co., 95 Ark.
368, 130 S. W. 162.
Massachusetts. — Brill Co. v. Nor-
ton & T. St. R. Co., 189 Mass. 431,
75 N. E. 1090, 2 L. R. A. (N. S.)
525.
Jfebraska. — Preston v. Northwest-
ern Cereal Co., 67 Neb. 45, 93 N. W.
136.
IVew Jersey. — Owen & Co. v.
Storms & Co., 78 N. J. L. 154, 72 Atl.
441.
New York. — Jacobus v. James-
town Mantel Co., 149 App. Div. 356,
134 N. Y. Supp. 418; Carlaftes v.
Goldmeyer Co., 72 Misc. Rep. 75, 129
N. Y. Supp. 396.
Rhode Island. — Cook v. American
Tubing & Webbing Co., 28 R. I. 41,
65 Atl. 641.
Tennessee. — IMcCampbell v. Foun-
tain Head R. A., Ill Tenn. 55, 77
S. W. 1070, 102 Am. St. Rep. 731.
West Virginia, — Haupt v. Vint, 68
W. Va. 657, 70 S. E. 702.
Defense of ultra vires is not avail-
able unless pleaded. Bacon v. Mon-
tauk Brewing Co., 130 App. Div. (N.
Y.) 737, 115 N. Y. Supp. 617.
37. Eagan v. Mahoney (Colo. App.
1912), 121 Pac. 108.
33
The Paeties.
§ 30
is incident to the scope of its business.^* Tims, a brewery com-
pany may guarantee the payment of rent of a hotel, the bar flx-
•tures and furniture of which it owns, and in which its beer is to
be sold to the trade.^* -And so a lumber company may 'become
surety for a contractor who agrees to buy his lumber from it/''
38. United States. — Vanderveer v.
Asbury Park & B. S. R. Co. (C.
C), 82 Fed. 355.
Illinois. — Heim's Brewing Co. v.
Flannery, 137 111. 309, 27 N. E. 286;
Standard Brewery Co. v. Kelly, 66
111. App. 267.
Kentncky. — Monarch Co. v. Farm-
ers & Drovers' Bank, 105 Ky. 430, 20
Ky. Law Rep. 1351, 49 S. W. 317, 88
Am. St. Rep. 310.
Michigan. — Constantine v. Kala-
mazoo Beet Sugar Co., 132 Mich.
480, 93 N. W. 1088, 9 Det. Leg. N. 672.
Nebraska. — Horst v. Lewis, 71
Neb. 365, 98 N. W. 1046, affirmed, on
rehearing, 71 Neb. 365, 103 N. W. 460.
New York.— Hall v. Ochs, 34 App.
Div. 103, 54 N. Y. Supp. 4; Koehler
& Co. V. Rainheimer, 26 App. Div. 1,
49 N. Y. Supp. 755, reversing 20 Misc.
Rep. 62, 45 N. Y. Supp. 337; Field v.
Burr Brewing Co., 18 N. Y. Supp.
456.
Texas. — Forty Acre Spring Live
Stock Co. v. West Texas Bank &
Trust Co. (Civ. App. 1908), 111 S. W.
417.
Wisconsin. — Winterfield v. Cream
City Brewing Co., 96 Wis. 239, 71 N.
W 101.
See § 31 herein.
Where a new customer is obtained
hy a corporation by its entering into
a contract of guaranty, such act will
■be regarded as within its implied
powers. Blue Island Brewing Co. v.
Fraatz, 123 111. App. 26.
Where all the stock of one corpo-
ration is owned by another it is held
that the indorsement by the latter of
accommodation paper for the former
is not ultra vires. In re New York
Car Wheel Works (C. C. A.), 141
Fed. 430.
39. Winterfield v. Cream City
Brewing Co., 96 Wis. 239, 71 N. W.
101.
That brewery company may guar-
antee payment of rent of saloon, see,
also. Hall v. Ochs, 34 App. Div. (N.
Y.) 103, 54 N. Y. Supp. 4; Koehler &
Co. V. Rainheimer, 26 App. Div. (N.
Y.) 1, 49 N. Y. Supp. 755, reversing
20 Misc. Rep. 62, 45 N. Y. Supp. 337.
Signing bond of saloonkeeper. A
corporation engaged in wholesale
liquor business has implied power
to sign the bond of a saloonkeeper,
though the latter has entered into
no agreement to purchase his
liquors of the former. Munoz v.
Brassel (Tex. Civ. App. 1908), 108
S. W. 417.
The secretary of a brewing Com-
pany has no authority to execute a
guaranty in the corporate name of
rent of premises occupied by a
saloonkeeper who makes no agree-
ment to buy liquors exclusively of,
or to do any other act for the bene-
fit of the grantor, and who offers no
other inducement, such act not be-
ing expressly authorized by the
board of directors. IMcBroom v. Che-
boygan Brewing & Malting Co., 162
Mich. 323, 127 N. W. 361, 17 Det. Leg.
N. 571.
40. Wittmer Lumber Co. v. Rice,
23 Ind. App. 586, 55 N. E. 868.
See, also, Central Lumber Co. t.
§ 30 SUKETYSHIP AND GuAR^iNTY. 34r
And the rule that a corporation can neither make nor indorse com-
mercial paper for accommodation, even though paid therefor, is
held not to be applicable whore the corporation assumes an obliga-
tion of another for the purpose of protecting its own interests.^^
So a corporation executing a note jointly with others for which
it received its proportionate share of the consideration for which
the note was given, cannot claim that it was only a surety as to
the other makers and that the note was therefore ultra vires, it
being authorized by its charter to borrow money /^ And it is held
that an executed contract cannot be avoided for ultra vires when
itho corporation has received the benefits of the contract. So after
the contract is executed the corporation cannot allege its surety-
ship as an ultra vires contract and, therefore, void/^
It is a rule that a corporation which has received and retained
the benefits of an ultra vires contract is prohibited from repudiat-
ing its obligations thereunder. This doctrine has been applied
where a corporation was an accommodation indorser or surety
upon notes.*^
However, this general rule has qualifications. A contract of a
corporation which is ultra vires in the proper sense, that is, out-
side of the object of its creation as defined in the law of its or-
ganization, and therefore beyond the powers conferred upon it by
the legislature, is not voidable only, but wholly void and of no
legal effect. Because the objection to the contract is not merely
that the corporation ought not to have made it, but that it could
not make it. Such contract cannot be ratified by either party be-
cause it could not have been authorized by either. IsTo perform-
Kelter, 102 111. App. 333, affirmed Kansas.— Arkansas Valley Farm
201 111. 503, 66 N. E. 543. & Land Co. v. Lincoln, 56 Kan. 145.
41. Bacon v. Montauk Brewing 42 Pac. 706.
Co., 130 App. Div. (N. Y.) 737, 115 Pennsylrania.— National Bank of
N. Y. Supp. 617. Western Pennsylvania v. Lake Erie
42. Session v. Lindeberg, 66 Wash. Asphalt Co. (Pa. 1912), 82 Atl. 773.
1, 118 Pac. 900. Texas.— Waller v. German Mer-
43. Illinois. — Kadish v. Garden cantile Co. (Civ. App. 1911), 141 S.
City Equitable Loan & Bldg. Ass'n, W. 833.
151 111. 531, 38 N. E. 236; Chicago & 44. Waller v. German Mercantile
M. Telegraph Co. v. Type Telegraph Co. (Tex. Civ. App. 1911), 141 S. W,
Co., 137 111. App. 131. 833.
Indiana. — Wittmer v. Rice, 23
Ind. App. 586, 55 N. E. 868.
35 The Parties. § 31
ance on either side can give the said contract any validity or be
the foundation of any right of action upon it. When a corpora-
tion is acting within the general scope of its powers conferred upon
it by the legislature, the corporation, as well as persons contract-
ing with it, may be estopped to deny that it has complied with the
legal formalities which are requisites of its existence or to its
action, 'because such requisites might in fact have been complied
with. But when the contract is beyond the power conferred upon
it by existing laws, neither the corporation nor the other party to
the contract can be estopped by assenting to it or by acting upon
it, to show that it was prohibited by those laws, for the contract
is void.*^ And the party receiving the benefits may be compelled
to restore what he has received or pay a compensation on implied
contract, and not on the original contract, which is void abso-
lutely."^
That the act on the part of the corporate obligee is ultra vires
is held not to relieve the sureties."^
Where a corporation relies on the defense of ultra vires it has
been decided that it has ithe burden of establishing that its act
was such.*^
§ 31. Implied Power to Become Surety. — A power will be im-
plied that a corporation may become surety whenever reasonably
necessary or is usual in the conduct of its business, or reasonably
necessary or proper in order to accomplish any particular power
45. Davis v. Railroad Co., 131 48. Knapp & Co. v. Tidewater Coal
Mass. 258; Central Trans. Co. v. Co. (Conn. 1912), 81 Atl. 1063.
Pullman's Palace Car Co., 139 U. S. Examine National Bank of West-
24, 11 S. Ct. 478; Durkee v. People ern Pennsylvania v. Lake Erie As-
ex rel. Askren, 155 111. 354, 40 N. E. phalt Co. (Pa. 1912), 82 Atl. 773,
626; Best Brewing Co. v. Klasson, holding that where one seeks to
185 111. 37, 57 N. E. 20; National charge a corporation with liability
Home Building & Loan Ass'n v. for an unauthorized guaranty by its
Home Sav. Bank, 181 111. 35, 54 N. E. officers the burden is upon him to
619; Marble v. Harvey, 92 Tenn. 115. show that the corporation received
46. Salt Lake City v. Hollister, and retained the benefit of the act.
118 U. S. 256, 263, 6 S. Ct. 1055, Where note transferred after ma-
30 L. Ed. 176. tnrity. Where the note of a corpo-
47. American Bonding Co. v. City ration, made for the accommodation
of Ottumwa, 137 Fed. 572, 70 C. C. A. of a third person, is transferred
270. after maturity, the transferee, in or-
der to hold the maker, must show
^ 32( Suretyship and Guakanty. 36
expressly conferred/* Thus, a national bank may give a guar-
anty for the payment of a note which it indorses in order to trans-
fer the same to other parties, as such action is incidental to the
exercise of its power to buy and sell commercial paper, ^"
§ 32, Principal Under Duress. — If the principal is under
duress at the time of making a contract, it may be avoided by
him. And if the contract of suretyship is executed by the surety
under duress he will not be bound.^"- But the general rule is that
the surety cannot set up the duress of his principal to relieve him
from liability as surety when he signed with knowledge of the
duress.^^ Because duress which will avoid a contract must be
pleaded by the party who 'acted under it in making the contract.^
But there are decisions to the contrary which hold that a surety
may avoid the contract on account of tlie duress of the principal.^*
And tlie defense of duress in the execution of a note has been
allowed to the surety because he was the father of the priucipal.^^
When the surety is ignorant of the duress of the principal he
that his transferor was a holder for Illinois. — Peacock v. People, 83
^alue in good faith before maturity. 111. 331; Plummer v. People, 16 111.
.Jacobus V. Jamestown Mantel Co., 358.
149 App. Div. (N. Y.) 356, 134 N. Y. Indiana.— Tucker v. State, 72 Ind.
;Supp. 418. 242.
49. Green Bay & M. R. R. Co. v. Maine. — Oak v. Dustin, 79 Me. 23,
lUuion Steamboat Co., 107 U. S. 98, 7 Atl. 815, 1 Am. St. Rep. 281.
2 S. Ct. 221, 27 L. Ed. 506; Massachusetts. — Robinson v.
Arnot V. Railroad Co., 67 N. Y. 315; Gould, 11 Cush. 55.
Heim's Brewing Co. v. Flannery, 137 ^orth Carolina. — Simms v. Bare-
Ill. 309, 27 N. E. 286; Smead v. Rail- foot's Ex'rs, 3 N. C. 402.
road Co., 11 Ind. 104. Compare Strong v. Grannis, 26
See § 30 herein. Barb. (N. Y.) 122; Thompson v.
50. Thomas v. City Nat. Bank of Lockwood, 15 Johns. (N. Y.) 256.
Hastings, 40 Neb. 501, 58 N. E. 943; 53. Robinson v. Gould, 11 Cush.
People's Bank v. Bank, 101 U. S. (Mass.) 55, 57.
181, 25 L. Ed. 907. 54. Hawes v. Marchant, 1 Curt.
51. Small V. Currie, 2 Drew. 102; 136; State v. Brantley, 27 Ala. 44;
Ingersoll v. Roe, 65 Barb. (N. Y.) Wilkinson v. Herd, 65 Mo. App. 491;
346. Owens v. Mynatt, 1 Heisk. (Tenn.)
52. United States.— Hazard v. Gris- 675.
wold, 21 Fed. 178. 55. Osborn v. Bobbins, 36 N. Y.
Colorado. — Haney v. People, 12 365. Compare Strong v. Grannis, 26
Colo. 345, 21 Pac. 39. Barb. (N. Y.) 122; Gibson v. Patter-
Georgia.— Spicer V. State, 9 Ga. 49. son, 75 Ga. 549.
37 The Parties. §§ 3o, 34
will not be liable, because then he bocomesi surety on a contract
which was not in contemplation at the time of its execution.^®
But where he has full knowledge of the facts, duress of the prin-
cipal does not release him from liability.^^
§ 33. Non-residents. — Where the statute provides that sure-
ties shall be residents of the State or county where the contract
is executed, the statute is directory, and the non-resident surety
will be held responsible, and he cannot set up his foreign domioil
to release him of liability.^^
§ 34. Surety and Guaranty Companies — Generally. — At the
present time many States have enacted laws for the organization
of surety and guaranty corporations, which can become surety,
and such laws are constitutional.^^
It is within the power of the legislature to authorize corpora-
tions to become sureties on bonds and to prescribe the conditions
under which they may do so.^" Such corporations may be ac-
cepted 'as sole surety,^^ and the grant of such power to a corpora-
tion to become the sole surety, in no manner interferes with the
general law in regard to personal security.^^
iSuch companies are to be regarded as a convenience to the
community. ^^
And in a recent case in Oalifomia it is said in holding an act
to be constitutional which related to bonds of public officials:
'* The act may reasonably be construed as one designed to en-
courage the giving by the officers to whom it is applicable of surety
company bonds, rather than personal surety bonds, upon the
56. Hazard v. Griswold, 21 Fed. 25 Atl. 663; Steele v. Auditor Gen-
178; Graham v. Marks, 98 Ga. 67, 25 eral. 111 Mich. 381, 69 N. W. 738.
S. E. 931; Patterson v. Gibson, 81 See §§ 438 et seq. herein, as to
Ga. 802, 10 S. E. 9, 12 Am. St. Rep. surety companies.
356 ; Griffith v. Sitgreaves, 90 Pa. St. 60. Moffett v. Koch, 106 La. 371, 31
161. So. 40; Steel v. Auditor General, 111
57. Plummer v. People, 16 111. 358; Mich. 381, 69 N. W. 738,
Tucker v. State, 72 Ind. 242. 61. Cramer v. Tittle, 72 Cal. 12, 12
58. State v. Finn, 77 Ala. 100; Pac. 869,
School Directors v. Brown, 33 La. 62. County Commissioners of Cal-
Ann. 385. vert County v. Hellen, 72 Md. 603, 20
59. Cramer v. Tittle, 72 Cal. 12, 12 Atl. 130.
Pac. 869; Gans v. Carter, 77 Md. 1, 63. Matter of Thurber, 162 N. Y.
244, 251, 56 N. E. 631.
§ 34 SUEETYSIIIP AND GuAKANTY. 38
theory that the public interests will be better protected by such
bonds. While both classes of bonds were, prior to the passage
of the act, equally credited, and while either must still be ac-
cepted, when presented by a public officer, when we take into
consideration the provisions of our law relating to the conditions
and official supervision under which surety companies may trans-
act business, it cannot fairly be said that the Legislature may
not reasonably have concluded that, while the personal surety
bond may still be used at the option of an officer, the surety com-
pany bond iSi a better and safer bond, so far as the public in-
terests are concerned, and the giving of such bonds should be
encouraged." ^*
64. San Luis Obispo County v.
Murphy (Cal. S. C. 1912), 123 Pac.
838, per Angellotti, J.
39, Execution of the Contkact. § 35
CHAPTER III.
EXECUTION OF THE CONTRACT.
Section 35. Consideration.
36. Indorsing Note Before and After Execution.
37. Surrender of Old Note for New Note.
38. The Consideration Must be Legal.
39. Concurrent Contracts.
40. Surety's Promise Being the Inducement.
41. Executed Contract.
42. Extension of Time — Promise of Third Person to Pay.
43. Agreement to Forbear for an Indefinite Time.
44. An Agreement Must Be Made to Forbear.
45. Offer to Become Surety for Another.
46. Extension of Time — Agreement to Pay Interest.
47. Both Parties Must Be Bound.
48. Extension of Time by Paying Interest — Contrary Doctrine.
48a. Place of Signature.
49. Delivery of Contract.
50. Delivery in Escrow.
51. Wrongful Delivery by Principal.
52. Imperfect Instrument.
53. Surety's Name Not Appearing in Body of the Instrument.
54. Principal Not Signing.
65. Alteration of the Instrument.
56. Filling Blanks — As to Surety's Liability.
57. Negotiable Notes.
58. Person Signing as Principal.
59. Estoppel of Surety to Deny Recitals in the Instrument
59a. Estoppel to Deny Validity.
60. Denying Valid Appointment of Principal.
61. Sureties Cannot Deny the Incorporation of Corporate Bodies
with Whom Their Principal Deals.
62. Denying Court's Jurisdiction.
63. Attacking Bond in Collateral Proceedings.
64. Relations After Judgment.
65. Effect of Judgment on Surety.
^ 35. Consideration. — ^^A contract of surety differs in no re-
spect from otlier contracts, and must be supported by a sufficient
consideration.^ The consideration may be some benefit or advan-
1. Arkansas.— Kissi re v. Plunkett- S. W. 567; Barton v. Haltom, 9S
Jarrell Grocer Co. (Ark. 1912), 145 Ark. ♦631, 125 S. W. 418.
§ 35 Suretyship and Guaeanty. 40
tage to the principal or surety or some disadvantage. Whajt is a
sufficient consideration to support a promise of the principal will
sustain the concurrent promise of the surety.^ The consideration
need not, however, be an advantage received by the surety him-
s'^lf, it being sufficient, t<'. support such promise that it is founded
upon The consideration then received by the principal debtor, or
California. — Kellogg v. Lopez, 145 into or execute the contract after
Cal. 497, 78 Pac. 1056. his bid has been accepted, a bond
Illinois. — Chicago Sash, Door & accompanying his bid is only en-
Blind JMfg. Co. V. Haven, 195 111. 474, forceable to the extent to which he
63 N. E. 158, affirming Haven v. Chi- was liable to the city under such
cago Sash, Door & Blind Mfg. Co., charter provision for refusing to
96 HI. App. 92. execute his contract. City of New
Indiana. — Post v. Losey, 111 Ind. York v. Seely-Taylor Co., 149 App.
74, 12 N. E. 121. Div. (N. Y.) 98, 133 N. Y. Supp. 808.
Kansas. — Briggs v. Latham, 36 2. United States. — United States v.
Kan. 205, 13 Pac. 129. Linn, 15 Pet. 290, 10 L. Ed. 742.
Missouri. — Lowenstein v. Sorge, 75 Illinois. — Pritchett v. People, 1
Mo. App. 281. Gil. 525; Green v. Shaw, 66 111. App.
New York. — City of New York v. 74.
Seely Taylor Co., 149 App. Div. 98, Indiana. — Lackey v. Boruff, 152
133 N. Y. Supp. 808. Ind. 371, 53 N. E. 412.
Ohio. — Merchants' Nat. Bank v. Kentucky. — Bassett v. O'Neil Coal
Ryan, 67 Ohio St. 448, 66 N. E. 526. & Coke Co., 140 Ky. 346, 131 S. W.
Oregon. — See Hughes v. Ladd, 42 25.
Ore. 123, 69 Pac. 548. New Hampshire. — Savage v. Fox,.
Pennsylvania. — Court Vesper, No. 60 N. H. 17.
69, Foresters of America v. Fries, 22 New York. — Leonard v. Vreden-
Pa. Super. Ct. 250. burg, 8 Johns. 29.
See § 39 herein, as to concurrent Ohio. — Merchants' National Bank
contracts. v. Ryan, 67 Ohio St. 448, 66 N. E.
Failure of consideration in case of 526.
bond given by a bank with sureties South Dakota. — Bower v. Jones, 26
to a State treasurer to secure cer- S. D. 414, 128 N. W. 470.
tain moneys to be deposited by the An obligation as surety for a debt
State with the bank, held not to be is sufficient consideration for the
shown by failure to make future de- subsequent signing of a note as
posits. Hurlburt v. Kephart, 50 surety therefor. Frick Co. v. Hoff,
Colo. 353, 115 Pac. 521. 26 S. D. 360, 128 N. W. 495.
An agreement by a surety to pay Knowledge that signer an accom-
any sum for which his principal is modation party. An accommodation
not liable is without consideration, party is not relieved from liability
Thus, where the charter of a city because the holder knew him to be
provides what damages shall be paid only an accommodation party and
by a bidder for refusing to enter want of consideration is no defense
41 Execution of the Contkact. § 35
that by such promise a dis'advantage has resulted to the creditor.'
There is a sufficient consideration to support a written contract
or agreement to pay the debt of another, if, acting on the faith of
such agreement or contract, the party with whom it was made
parted with his property/ 'So an extension of the time of pay-
ment is a sufficient consideration for the promise of a third party,
as surety, to pay the debt.^ And if the surety agreed to such
extension he is bound, and his consent may be implied.^
And where one who has a lien upon property surrenders pos-
session of the property to enable another to attach the same, such,
surrender is a sufficient consideration to support a bond executed
by the latter as principal and a third person as surety to secure
the amount of such lien.^
Likewise where the payment of a note is secured by stock
pledged as collateral, its surrender is a sufficient consideration for
the signature of one as surety.^ After the surety is released, he
may, without any new consideration, revive his liability by a new
and distinct promise if not contrary to statute f and especially so
if the new promise be in writing.^'* And though performance of
a contract had been waived by the principal a subsequent per-
formance was held to be a consideration for the signing of a note
by one as surety.^^
If the contract is void the surety is not liable. Thus, where
a corporation becomes a surety, which is ultra vires and void, it
cannot he held liable, and if it had given a mortgage the land
does not pass, but the title still remains in the corporation.^^
to an action against him. Many, 8. Zuendt v. Doerner, 101 Mo.
Blanc & Co. v. Krueger, 153 111. App. App. 528, 73 S. W. 873.
327. 9. Bank v. Whitman, 66 111. 331;
3. Kissire v. Plunkett-Jarrell Hooper v. Pike, 70 Minn. 84, 72 N. W.
Grocer Co. (Ark. 1912), 145 S. W. 829.
567; Williams v. Perkins, 21 Ark. 18. 10. Fowler v. Brooks, 13 N. H. 240
4. Small Co. v. Claxton, 1 Ga. App. Bramble v. Ward, 40 Ohio St. 267
83, 57 S. E. 977. Smith v. Winter, 4 Mees. & W. 454
5. Hooper v. Pike, 70 Minn. 84, 72 Stevens v. Lynch, 12 East. 8.
N. W. 829. 11. Merchants' National Bank v.
See §§ 42-44 herein. Ryan, 67 Ohio St. 448, 66 N. E. 526.
6. Bank v. Whitman, 66 111. 331; 12. First Nat. Bank of Gadsden v.
Clark V. Devlin. 3 Bos. & Pul. 363. Winchester, 119 Ala. 168, 24 So. 337.
7. Davis, Belau & Co. v. National As to corporations as sureties, see
Surety Co., 139 Cal. 223, 72 Pac. 1001. §§ 28-31 and 438 et seq. herein.
§ 36 Suretyship and Guaranty. 42
And an agreement bj a surety to pay any sum for which his
principal is not liable is held to be without consideration.^^
As between the sureties and the principal, the consideration
which supports the undertaking of the sureties is the implied
promise of the principal to indemnify them for becoming parties
to the obligation/'*
§ 36. Indorsing Note Before and After Execution. — A guaran-
tor or surety indorsing a note before its delivery to the payee,
needs no new consideration to support such suretyship, because
his and the principal's contract were concurrent and simultan-
eous.^^ iSuch indorsement becomes and is a part of the original
contract, and therefore needs no new consideration.^^ iSo where
a landlord and tenant executed a lease which the landlord re-
fused to accept unless and until a surety for the performance of
the covenants therein had been obtained and the delivery of the
lease did not occur until after the surety had signed it, it was held
that until such delivery the contract of letting was incomplete,
■even though the tenant in the meantime may have entered into
the occupancy of the premises and paid an installment of rent and
that the delivery of the lease being contemporaneous with the de-
livery of the surety's obligation each contract became completed
at 'the same time and that the consideration which supported the
principal contract supported the subsidiary one.^^
13. City of New York v. Seely-Tay- paper to bind him. Stroud v.
lor Co., 149 App. Div. (N. Y.) 98, 133 Thomas, 139 Cal. 274, 72 Pac. 1008.
N. Y. Supp. 808. Concurrent contracts, see § 39
14. Alalia Ilia. — Martin v. Ellerbe, herein.
70 Ala. 326. 16. Illinois.— Joslyn v. Collinson,
Delaware.— Miller v. Stout, 5 Del. 26 111. 61.
Ch. 263. Indiana.— Brownlee v. Lowe, 117
Maine.— Thompson v. Thompson, Ind. 420, 20 N. E. 301; Bridges v.
19 Me. 244; Howe v. Ward, 4 Me. 195. Blake, 106 Ind. 332, 6 N. E. 833; Fa-
Massaclmsetts. — Appleton v. Bas- vorite v. Stidham, 84 Ind. 423.
■com, 3 Mete. 169. Iowa. — Briggs v. Downing, 48 Iowa
Tennessee. — Morrow v. Morrow, 2 550.
Tenn. Ch. 365. Massaclmsetts. — Green v. Shep-
15. Dillman v. Nadelhoffer, 160 111. herd, 5 Allen 589.
121, 43 N. E. 378. Nebraska.— Barnes v. Van Keuren,
See § 347. 31 Neb. 165, 47 N. W. 848.
Sii^nin?? l»j snrety after principals 17. Faust v. Rodelheim, 77 N. J.
had siisned note held to be concur- L. 740, 73 Atl. 491.
rent with their execution of the
43
Execution of the Contract.
§ 36
If the undertaking of suretyship is entered into at a time sub-
sequent to the execution by the principal, it is a distinct contract
and must be supported by a consideration of its own/^ .So where
a person signs a note as surety, after its delivery to the payee,
the transaction must be supported by a new consideration in order
to hold the surety.^^ Thus, where a note has been executed by the
principal, a party signing it as surety at a time subsequent to
the incurring of the obligation, without any new or distinct con-
sideration passing to the surety, is not bound.^" So a subsequent
18. Bebee v. Moore, 3 McLean (U.
S.) 387.
See § 41 herein.
19. Alabama. — Savage v. First Na-
tional Bank, 112 Ala. 508, 20 So. 398.
Illiuois. — Anderson v. Norvill, 10
111. App. 240; Joslyn v. Collinson, 26
111. 61.
Indiana. — Favorite v. Stidham, 84
Ind. 423.
Iowa. — Briggs v. Downing, 48
Iowa 550.
Kentucky. — Jackson v. Cooper, 19
Ky. Law Rep. 9, 39 S. W. 39.
Maine. — Sawyer v. Fernold, 59 Me,
500.
Mississippi. — Clopton v. Hall, 51
Miss. 482.
Missouri. — Lowenstein v. Sorge, 75
Mo. App. 281,
Compare Deposit Bank of Sulphur
V. Peck, 110 Ky. 579, 23 Ky. Law
Rep. 19, 62 S. W. 268, 96 Am. St. Rep.
466, where delivery accepted on con-
dition certain person should sign as
surety.
It may be conceded that when a
promissory note has been delivered
to the payee and the only considera-
tion therefor is one passing from the
payee to the maker of the note, a
person who subsequently signs or
guarantees payment of the note is
not bound without a new considera-
tion. Frick Co. v. Hoff, 26 S. D. 360,
128 N, W. 495.
When rule not applicable. In an
action against a surety on a note, it
appeared that defendant had been
agent of the plaintiff, and that a
traveling salesman had secured an
order within his territory. The order
was carried to defendant, who, to
secure his commission, was obliged
to see to the delivery of the goods
and the payment therefor, so he in-
dorsed it and filled out the guaranty
of payment. The traveling sales-
man delivered the machinery and
accepted a note from the buyer,
which the defendant signed as
surety. Held, as it was his duty to
see to the collection of the price, and
as the transaction was in his terri-
tory, that he did not sign this note
without consideration, and the rule
that, when a promissory note has
been delivered to the payee, the sole
consideration therefor passing from
the payee to the maker, a person
who subsequently signs as surety Is
not bound without a new considera-
tion, does not apply. Frick Co. v.
Hoff, 26 S. D. 360, 128 N. W. 495.
20. Wipperman v. Hardy, 17 Ind.
App. 142, 46 N. E. 537; Joslyn v. Col-
linson, 26 111. 61; Lowenstein v.
Sorge, 75 Mo. App. 281.
See § 347.
Examine Frick Co. v. Hoff, 26 S. D.
360, 128 N. W. 495.
§ 37 Suretyship and Guaranty. 44
indorsement without recourse by the payee of a note at the re-
quest of one who had cashed it does not make the payee a party
thereto where there had been no delivery of the instrument to him,
no acceptance thereof by him and no consideration from him to
the makers.^^
Where a corporation to secure its own note payable at a day
certain gave to the lender at the same time its blank note indorsed
by the defendant, the latter thereby became surety for the pay-
ment of the principal note according to its tenor the same as
though he had been an indorser thereof. ^^
§ 37, Surrender of Old Note for New Note. — A surrender of
the old promissory note is a sufficient consideration for a new one
executed by the surety and principal, although the surety had
been released from payment of the old note by the action of the
principal.^" iSo giving up a note against a third person, is a suf-
ficient consideration for a promise to pay the amount of it.^*
iind where both principal and surety who were ignorant of the
law, in good faith, supposed the surety was liable for the old
note, the surety is liable on the new note, though he had been dis-
charged on the old note.^^
21. Chitwood V. Hatfield, 136 Mo. of Black River Falls v. Jones, 92
App. 688, 118 S. W. 1192. Wis. 36, 65 N. W. 861.
22. Union Trust Co. v. McCrum, England.— Stevens v. Lynch, 12
145 App. Div. (N. Y.) 409, 129 N. Y. East. 88.
Supp. 1078. Where a surety signs a note with
23. California. — Stroud v. Thomas, his principal in renewal of a former
139 Cal. 274, 72 Pac. 1008, 96 Am. St. note executed by him, such renewal
Rep. 111. note does not witness a new indebt-
Iiuliana. — Brewster v. Baker, 97 edness, and the liability of the prin-
Tnd. 260. cipal to such surety was contracted
Michigan. — First National Bank v. when the original note was exe-
Johnson, 133 Mich. 700, 95 N. W. 975, cuted. Griffin v. Long, 96 Ark. 268,
10 Det. Leg. N. 403. 131 S. W. 672.
New York. — Jaycox v. Trembly, 42 24. Brewster v. Baker, 97 Ind. 260;
App. Div. 416, 59 N. Y. Supp. 245. Erie County Savings Bank v. Coit,
Texas.— Bell v. Boyd, 76 Tex. 133. 104 N. Y. 532, 11 N. E. 54; Short-
13 S. W. 232. redge v. Cheek, 1 A. & E. 57.
Vermont. — Churchill v. Bradley, 25. Churchill v. Bradley, 58 Vt,
58 Vt. 403, 5 Atl. 189, 56 Am. Rep. 403, 5 Atl. 189. This is on the prin-
553. ciple that ignorance of the law ex-
Wisconsin, — First National Bank cuses no one.
45 Execution of the iContiuict. §§ 38, 39
§ 38. The Consideration Must be Legal, — The consideration
must be legal and, of course, not opposed to public policy. Thus,
a note signed by one as surety upon the promise that the maker
thereof would not be prosecuted for embezzlement, being based
upon an illegal consideration, is void.^^ And a surety upon a
note may show in defense to an action thereon that it was given
for the purpose of defrauding creditors, which fact was known to
the payee but unknown to him.^^ But if the principal's debt is
based upon an illegal consideration, the delivery of the money
due upon the contract, to the surety to be paid to the payee, and
he agrees thus to pay the note upon which he is surety — make the
surety liable to pay the money as agreed, though the original con-
tract was illegal.^^
So it has been decided that defendants having enjoyed the bene-
fits of a bond, are estopped to deny its validity even though it is
founded on an illegal license to sell liquor.^^
§ 39. Concurrent Contracts. — In order to bind the surety, the
general rule is that his contract must be concurrent with the
principal's. So when the surety's contract is contemporaneous
with the principal contract, it is not necessary that there should
be a separate and distinct consideration from that upon which the
latter contract was executed.^** And if the consideration is suffic-
ient to support the principal contract, it will be sufficient to sup-
port the contract of suretyship.^^
26. Rouse v. Mohr, 29 111. App. Cal. 274, 72 Pac. 1008, 96 Am. St.
321; Gorham v. Keyes, 137 Mass. Rep. 111.
583 ; Board v. Thompson, 33 Ohio St. Maine. — Hughes v. Littlefield, 18
321. Me. 400.
27. Goodwin v. Kent, 201 Pa. 41, 50 Massachusetts.— Bickford v. Gibbs,
Atl. 290. 8 Gush. 154.
28. Armstrong v. Toler, 11 Wheat. New York. — McNaught v. Mc-
(U. S.) 258, 6 L. Ed. 468; Barker v. Claughry, 42 N. Y. 22.
Parker, 23 Ark. 390. See Farmer v. PennsjiTania. — In re Hughes' Es-
Russell, 1 Bos. & Pul. 296. tate, 13 Pa. Super. Ct. 240.
29. Town of Point Pleasant v. South Dakota.— Bower v. Jones, 26
Greenlee, 63 W. Va. 207, 60 S. E. 601. S. D. 414, 128 N. W. 470.
See Curry v. Morrison, 40 Pa. Super. See §§ 35 and 41 herein.
Ct. 301. Indorsing note before and after
30. United States. — Swift v. Tyson, execution, see § 36 herein.
16 Pet. 1, 10 L. Ed. 865. 81. Savage v. Fox, 60 N. H. 17.
fallfornia,— Stroud v. Thomas, 139 See § 35 herein.
§ 40 Suretyship and Guaeanty. 46
So if a party signs as a guarantor or surety, a note iDefore its
delivery to tlie payee, the consideration of the note will be pre-
sumed to be the consideration of the suretyship.^^
The question of consideration in cases of suretyship may be
divided into four classes: (1) Cases in which the promise of the
surety is collateral to the principal contract, but is made at the
same time and becomes an essential ground of the suretyship given
to the principal debtor. Hence, there is no need of any other
consideration to support the contract of suretyship.^^ (2) Cases
in which collateral undertaking is subsequent to the creation of
the debt and is not an inducement to it, though the subsisting lia-
bility is the ground of the promise, without a distinct or uncon-
nected inducement; therefore there must 'be a further considera-
tion, having an immediate respect to such liability for the con-
sideration of the original debt will not attach to this subsequent
promise.^* (3) Cases where the promise to pay a debt of an-
other arises out of a new and original consideration, of benefit
or harm moving between the contracting parties; so when the
surety subsequently signs the instrument after delivery, he will
be bound if he receives a new and sufficient consideration for his
act.^^ (4) Oases where the surety's promise is the inducement
of completing the contract, though he signs subsequently to the
execution.^®
These four classes of cases cover the law with respect to a
surety's liability.
§ 40. Surety's Promise Being the Inducement. — A moral obli-
gation is not sufficient to support a contract of suretyship ; but
when the contract has been entered into at the request of the
surety, the consideration of his promise, though passed or exe-
cuted, will be continuing and valuable, and when he signs, as
surety, the contract, it is a complete and full execution of the
82. Parkhurst v. Vail, 73 111. 343; Fish v. Hutchinson, 2 Wils. 94;
Dillman v. Nadelhoffer, 160 111. 121, Charter v. Beckett, 7 Term R. 201;
43 N. E. 378; Moies v. Bird, 11 Mass. Wain v. Walters, 5 East 10.
436. 35. Leonard v. Vredenburg, 8
83. Dillman v. Nadelhoffer, 160 111. Johns. (N. Y.) 29.
121, 43 N. E. 378; Bickford v. Gibbs, 36. Jackson v. Jackson, 7 Ala. 791;
8 Cush. (Mass.) 154. Russell v. Mosley, 3 Brod. & B. 211. .
34. Parkhurst v. Vail, 73 111. 343;
47 Execution of the Contract. § 41
promise upon that consideration, because the signature connected
with the original contract constitutes one entire contract, and the
surety is bound."
A consideration which is executed is not sufficient to support a
subsequent promise, unless the act was done at the request of the
party promising, for then the promise is not a naked one, but
couples itself with the precedent request, and is therefore founded
on a sufficient consideration. The general rule is that a passed
or executed consideration is not sufficient to sustain a promise
founded upon it, unless the consideration, though passed, was done
or performed at the request of the party promising. Without
such previous request, a subsequent promise has no legal validity^
because the consideration being entirely completed and exhausted,
it cannot be said that it would not have been made or given but
for the promise which is subsequent and independent. But where
the consideration and the promise founded upon it, are simul-
taneous, and the whole agreement is completed at once ; and where
the consideration is to do a thing in the future, the promise rests
on a sufficient foundation, and it binds the party who makes it.^*
Thus, if one loans money to another, and at a subsequent time a
third party who did not request the loan, and is not benefited by
it, promises to see that it is paid, his promise is void because no
consideration passes from the promisee to him. But if the prom-
isor requests the loan, or if his promise is made previous to the
loan, or at the same time, then it will be supposed that the loan
is made because of the promise, which is a sufficient consideration
to bind the third party or surety.^^ The consideration must be
at the time the promise is made, either wholly or in part executory^
in order to bind the third party who agrees to pay the debt.*"
§ 41. Executed Contract. — Where the consideration is wholly
executed and no part of it is executory, and runs only to the
87. Lackey v. Boruff, 152 Ind. 371, 38. Williams v. Perkins, 21 Ark.
53 N. E. 412; Paul v. Stackhouse, 38 18.
Pa. St. 3C2. 39. Jackson v. Jackson, 7 Ala. 791;
As a general rule, the considera- Payne v. Wilson, 1 Man. & Ry. 708;
tion which binds a surety must be Bailey v. Croft, 4 Taunt. 611; Morley
executory, but, when the thing was v. Boothby, 10 J. B. Moore, 395; Rus-
done at the request of the surety, a sell v. Mosley, 3 Brod. & B. 211.
past consideration binds him. Lain- 40. Bank v. Coster, 3 N. Y. 202.
gor V. Lowenthal, 151 111. App. 599.
§ 42 Suretyship and Guaiianty. 48
principal, a subsequent promise by a tbird party is void.*^ Where
a note has already been executed and delivered, and then a third
partv signs as surety, there must be a new consideration to sus-
tain the surety's promise. If there be no new consideration in
such case the surety will not be liable/^ So where a collateral
undertaking of a guarantor or surety is subsequent to the creation
of the debt, and is not the inducement leading to the formation
of the contract, although the consideration need not be expressed
in writing, yet there must be some consideration shown having
an immediate respect to such liability ,^^ for such subsequent surety
or guaranty requires a distinct consideration to support such en-
gagement/*
§ 42. Extension of Time — Promise of Third Person to Pay. —
A promise to forbear the collection of a pre-existing debt, will be
no consideration for the promise of a third person to pay it, un-
less it be shown that such forbearance was actually granted upon
the faith of such third person's promise.^^ So the suspension of
41. AIab<iiua. — Savage v. First Na- Consideration for mortgage to in-
tional Bank, 112 Ala. 508, 20 So. 398. demnify sureties. The contingent
Illinois. — Chicago Sash, Door & B. liability of a principal to the sureties
Mfg. Co. V. Haven, 195 111. 474, 63 N. upon his bond is a sufficient consid-
E. 158; Underwood v. Hossack, 38 eration to support a mortgage given
111. 208. to indemnify such sureties after exe-
Indiana. — Coffin v. University, 92 cution and delivery of the bond and
Ind. 337; Wells v. Ross, 77 Ind. 1. before a breach. County of Harlan
Kentucky. — Jackson v. Cooper, 19 v. Whitney, 65 Neb. 105, 90 N. W.
Ky. Law Rep. 9, 39 S. W. 39. 993.
Massachusetts. — Pratt v. Hedden, 42. Fuller v. Scott, 8 Kan. 25;
121 Mass. 116. Thompson v. Gray, 63 Me. 228; Lee
Missouri. — Lafayette Mutual Bldg. v. Wisner, 38 Mich. 82.
Ass'n V. Kleinhoffer, 40 Mo. App. 388. See § 36 herein.
Nebraska. — Barnes v. Van Keuren, 43. Harris v. Harris, 180 111. 157,
31 Neb. 165, 47 N. W. 848. 54 N. E. 180.
New York. — McNaught v. Me- 44. Nichols & Shepard Co. v. Ded-
Claughry, 42 N. Y, 22. rick, 61 Minn. 513, 63 N. W. 1110;
Texas. — Bluff Springs Mercantile Lowenstein v. Sorge, 75 Mo. App.
Co. V. White (Civ. App.) 90 S. W. 281.
710. 45. Savage v. First National Bank,
See as to indorsement of note be- 112 Ala. 508, 20 So. 398; Jackson v.
fore and after execution and deliv- Jackson, 7 Ala. 791; Harwood v.
ery, § 39 herein. Kiersted, 20 111. App. 367.
491 Execution of the Conteact. § 43^
the right of the creditor to enforce payment of his debt to a future
date is a sufficient consideration for the promise of a third per-
son to pay it/^ And so where one who has the property of a
debtor under his control, executes a promissory note at the debtor's
request payable to one of the latter's creditors, which is accepted
by such creditor in satisfaction of his debt, the note is based upon
sufficient consideration." And so an agreement to extend the time
of payment of a debt is a sufficient consideration for the execu-
tion by a third party of his note to the creditor as collateral se-
curity for the payment of such debt,^^ or for his signing a note
as surety therefor/^
§ 43, Agreement to Forbear for an Indefinite Time. — An
agreement to forbear for an indefinite time, and actual forbear-
ance for a reasonable time, is a sufficient consideration for the
surety's undertaking. If no specific time is fixed by the agree-
ment of the parties, the law presumes that a reasonable time was
intended.^" So the taking of a new security payable at a future
An agreement to forbear for a v. Ford, 55 Hun (N. Y.) 479, 8 N. Y.
reasonable or specified time is a suf- Supp. 719.
ficient consideration. Jones v. Britt, 48. Pratt v. Hedden, 121 Mass. 113;
168 Fed. 852, 94 C. C. A. 264. Linton v. Chestnutt-Gibbons Grocer
46. United States.— Jones v. Britt, Co. (Okla. 1911), 118 Pac. 385.
168 Fed. 852, 94 C. C. A. 264. See §§ 113 et seq., 363 et seq.
Kentucky. — Dow-Hayden Grocery 49. Dow-Hayden Grocery Co. v.
Co. V. Muncy, 24 Ky. Law Rep. 2255, Muncy, 24 Ky. Law Rep. 2255, 73 S.
73 S. W. 1030. W. 1030; Hannay v. Moody, 31 Tex.
Massachusetts.— Pratt v. Hedden, Civ. App. 88, 71 S. W. 325.
121 Mass. 116. Where, in consideration of the ex-
Michigan. — Lee V. Wisner, 38 Mich, tension of the time of payment of a
82. note, a person signs the same aa
Minnesota. — Hooper v. Pike, 70 surety, he is bound thereby. Rumley
Minn. 84, 72 N. W. 829, 68 Am. St. Co. v. Milcher, 23 Ky. Law Rep. 1745,
Rep. 512. 66 S. W. 7.
Nebraska, — Barnes v. Van Keuren, An indorsement of notes is sup-
31 Neb. 165, 47 N. W. 848; Kansas ported by a sufficient consideration
Mfg. Co. V. Gandy, 11 Neb. 448, 9 N. where made for the purpose of se-
W. 569. curing an extension of an indebted-
NcTada. — White Sewing Mach. Co. ness and to prevent a default in a
V. Fowler, 28 Nev. 94, 78 Pac. 1034. mortgage. Kissire v. Plunkett- Jar-
Texas.— Hannay V. Moody, 31 Tex. rell Grocer Co. (Ark. 1912), 145 S.
■Civ. App. 88, 71 S. W. 325. W 567.
47. Moies v. Bird, 11 Mass. 436; 50. Elton v. Johnson, 16 Conn. 253;
Jaffay v. Brown, 75 N. Y. 393; Clune Moore v. McKenney, 83 Me. 80, 21
4
§§ 44, 45 Suretyship and Guaranty. 50
date, by operation of law and without any specific agreement ta
that effect, imposes on the creditor the duty of waiting for his-
pay until the new security matures.^^ It is, however, decided
that an agreement, indefinite in every aspect, and involving no en-
forceable obligation cannot be deemed a new consideration which
will support a contract of suretyship.^^
§ 44. An Agreement Must be Made to Forbear. — A promise
to pay the debt of another, although in wrting, is not enforcible,
unless founded upon a consideration. Thus, where a promise iS'
to pay an overdue debt, mere forbearance without agreement to
that effect, is not a consideration.^^ There must be an acceptance
of the offer to answer for the debt of another in consideration of
forbearance, in order to complete the contract.^* Thus, mere for-
bearance to sue the maker of a note, without any agreement to
that effect on the part of the holder, is not a sufficient considera-
tion.^'* But actual forbearance to sue on a note, in connection
with other facts, may be evidence of an agreement to forbear, and
as such forms a sufficient consideration.^^
§ 45. Offer to Become Surety for Another. — A person propos-
ing to become a surety for another, is not bound to inquire as to
the acceptance of his offer. The creditor who intends to hold him
must show reasonable notice of such intention. Wherever one
offers his name with that of others as surety to whomsoever may
accept the proposal, he is entitled to notice of the acceptance, and
is not obligated to make inquiries on that point." The reason of
this rule is, that the surety may have the opportunity of arrang-
Atl. 749; Howe v .Taggart, 133 Mass. 55. Mecorney v. Stanley, 8 Cush..
284; Coles v. Pack, L. R. 5 C. P 65. (Mass.) 85; Breed v. Hillhouse, 7
51. Andrews v. Morrett, 53 Me. Conn. 523.
589; Kisner v. Pullen, 3 Daly (N. 56. Walker v. Sherman, 11 Met.
Y.) 485. (Mass.) 170; Breed v. Hillhouse, 7
52. Many, Blane & Co. v. Krueger, Conn. 523.
153 111. App. 327. 57. Douglas v. Reynolds, 7 Pet. (U.
53. United States v. Linn, 15 Pet. S.) 113, 8 L. Ed. 626; Gano v. Farm-
(U. S.) 290, 10 L. Ed. 742; Hess's Es- ers' Bank of Kentucky, 103 Ky. 508,
state, 150 Pa. St. 346, 24 Atl. 676; 20 Ky. Law Rep. 197, 45 S. W. 519,
Rumberger v. Golden, 99 Pa. St. 34. 82 Am. St. Rep. 596; Steadham v.
54. Clark v. Russell, 3 Watts Guthrie, 4 Met. (Ky.) 147.
(Pa.) 213.
51 Execution of the Conteact. § 46
ing his relations with the party for whose benefit or in whose
favor the surety is given. ^^ But where the agreement to accept is
contemporaneous with the guaranty or suretyship, and is the con-
sideration therefor, and all the parties being privy to the whole
transaction, no specific notice of acceptance is necessary. ^^
So where the contract of employment of a sales agent provided
that a bond should be given by him for the faithful discharge of
his duties it was decided in a suit on the bond given in pursuance
of such provision that it was unnecessary to allege that the bond
was formally accepted and the surety formally notified of such
acceptance.^** Acceptance in some cases may also be presumed. ^'^
§ 46. Extension of Time — Agreement to Pay Interest. —
Where the interest is paid in advance, or any part of it, this is a
sufficient consideration for the forbearance. But another ques-
tion arises whether a bare promise to pay interest during a fixed
period of extension stipulated for is a sufficient consideration.
The weight of authority is that such an agreement is a valuable
consideration. It is a valuable right on the part of the creditor
to have his money placed out at interest, and it is a valuable right
on the part of the debtor to have the privilege at any time of
getting rid of the payment of interest by discharging the debt.
By this contract of extension the right to interest is secured for a
given period, and the right to pay oif the debt and get rid of pay-
ing interest is also relinquished for such period. The creditor
relinquishes his right to demand immediate payment and con-
68. Thompson v. Glover, 78 Ky. ance should be given to him. Har-
193; Howe v. Nichols, 22 Me. 175. gis v. Fidelity Mutual Life Ins. Co.,
69. Wildes v. Savage, 1 Story (U. 29 Okla. 195, 117 Pac. 794; Fidelity
S.) 22; Bleeker v. Hyde, 3 McLean Mutual Life Ins. Co. v. Stegall, 27
(U. S.) 279; Village of Chester v. Okla. 151, 111 Pac. 389.
Leonard, 68 Conn. 495, 37 Atl. 397; 60. Bruce Co. v. Lambour, 123 La.
Reigart v. White, 52 Pa. St. 438. 969, 49 So. 659.
See Singer Mfg. Co. v. Freerks, 61. Acceptance presnmed. The ac-
12 S. D. 595, 98 N. W. 705, holding ceptance of a fidelity bond by the
principal to be ag:ent of surety for obligee is presumed from the fact
delivery where latter gives bond to that it is retained by the obligee and
former to deliver to obligee. the employee continued in the dis-
In case of a contract of suretyship charge of his duties. Boyd v. Agrl-
It is decided that it is not essential cultural Ins. Co., 20 Colo. App. 28, 76
In order to render it binding upon Pac. 986.
the surety that notice of its accept-
§ 46 StJKETYSHlP AND GuAKANTY. 52
verts the debt into an immatured, interest-bearing security, and
the debtor relinquishes his right to make immediate payment and
binds himself to pay interest for the time specified, in considera-
tion of such extension on the part of the creditor.*'^ So the promise
of the holder of a note to grant an extension of the time for its
payment, for a certain period, after maturity, in consideration
of the promise of the maker to pay interest thereon at a stipulated
rate for such period, constitutes a valid and binding agreement
upon a sufficient consideration, notwithstanding the rate of in-
terest so agreed to be paid is less than that named in the note.
The maker thus assumes an obligation, not before imposed upon
him, and the holder of the note acquires an additional substantial
right — that of refusing payment and exacting interest for the
full period of the extension. Such mutual promises are a suffici-
ent consideration each for the other,^ if on no other consideration.
In such case, however, it is essential that there be a definite and
express promise on the part of the maker of the note to pay in-
terest for the stipulated time. A mere promise or offer on the
part of the one to whom payment is due to give further time,
without a positive agreement on the part of the debtor to pay
interest for such time, is a promise without consideration to sup-
port it. It is a mere nudum pactum, and does not change the legal
relations of the parties.^'* And so a mere payment of interest in
advance does not discharge the surety, there being no express
agreement that the time of payment should thereby be extended.*
62. Illinois. — Dodgson v. Hender- Texas. — Benson v. Phipps, 87 Tex.
son, 113 111. 361. 578, 29 S. W. 1061.
Georgia. — Stallings v. Johnson, 27 West Virginia. — Parsons v. Har-
Ga. 564. rold, 46 W. Va. 122, 32 S. E. 1002.
Kentucky. — Robinson v. Miller, 2 63. English v. Landon, 181 111.
Bush. 192. 614, 54 N. E. 911; Crosman v. Wo-
Maine.— Chute v. Patte, 37 Me. heleben, 90 111. 537; Moore v. Red-
102. ding, 69 Miss. 841, 13 So. 849; Bailey
New Hampshire. — Fowler v. v. Adams, 10 N. H. 162; Fawcett v.
Brooks, 13 N. H. 240. Freshwater, 31 Ohio St. 637; Wood
Ohio.— Wood V. Newkirk, 15 Ohio v. Newkirk, 15 Ohio St. 295.
St. 297; McComb v. Kittridge, 14 64. Ingles v. Sutliff, 36 Kan. 444,
Ohio 348. 13 Pac. 828; Bailey v. Adams, 10
Tennessee. — Stone River Nat. N. H. 162; Fulton v. Matthews, 15
Bank v. Walter, 104 Tenn. 11, 55 S. Johns. (N. Y.) 433.
W. 301. 65. Morse v. Blanchard, 117 Mich.
37, 75 N. W. 93.
53 Execution of the Oontkact. §§ 47, 48
§ 47. Both Parties Must be Bound. — It is essential in such ex-
tension that both parties shall be bound by the agreement, or that
it shall be mutual. Hence, a mere indorsement by a creditor
upon a note, that the time of payment is extended to a given day,
and that interest has been paid to such date at the same rate speci-
fied in the note, without any proof or showing that the interest
was in advance, there being no date to such indorsement and no
evidence that the debtor bound himself to keep the money or pay
interest for the time of such extension — shows no contract or
agreement by the debtor to such arrangement. It is essential that
both parties shall be bound by the agreement, or that the agree-
ment be mutual.'''' And consideration for the extension of pay-
ment must be something more than the mere doing or promise
to do something by the debtor which was obligatory upon him
by the original contract." It is immaterial what rate of interest
is to be paid during the period of extension, provided it is not a
rate prohibited by law. It may be the rate stipulated in the ori-
ginal contract, or a different rate. The right of the ddbtor to have
the use of the money for any defined time, and the right of the
creditor to get interest at any given rate for such period are alike
valuable in law, and will support the mutual promise — that of the
creditor to forbear and that of the debtor to retain the money and
pay interest.^* A mere promise by the creditor to forbear with-
out any promise on the part of the debtor not to pay the debt
during the time of the promise to forbear, lacks mutuality, and
therefore no contract arises. And some courts hold that an ex-
press promise to pay interest for the time is not necessary, and
that such an agreement of extension has all the essentials of a
valid contract.®*
All the courts hold that the time must be definite.
§ 48. Extension of Time by Paying Interest — Contrary Doc-
trine. — Another line of authorities hold a contrary doctrine. It
is argued that as the de'btor has already impliedly bound himself
to continue to pay interest in case of non-payment at muturity,
86. CrosBman v. Woheleben, 90 111. 68. Moore v. Redding, 69 Miss. 841,
537. 13 So. 849.
67. Ingles v. Sutliff, 36 Kan. 444, 69. Nelson v. Flagg, 18 Wash. 39.
13 Pac. 828. 50 Pac. 571.
§ 48a SUKETY.SIIIP AND GUAKANTY. 54:
the new promise to pay interest during the fixed period of exten-
sion is without consideration. The creditor receives no benefit
from the new promise, because the debtor is already bound to the
same extent by his original promise.™
§ 48a. Place of Signature. — The proper place for the signa-
ture of the principal and surety to a bond is at the foot thereof
though this may not be essential in order to bind him.^^
It does not, however, follow as a matter of law that, because
it is not necessary in order to hold a surety on a bond that his
sigTiature be in its proper place, he is bound by a misplaced sig-
nature. If his signature is so placed as to fairly raise a question
as to whether it was affixed with intent to execute the instrument
as surety, that question must be solved as one of fact upon the
evidence.^^ So evidence is held to be admissible in an action
between the original parties to an indemnity bond to recover from
an alleged surety that the party sought to be charged as such
surety intended to sign his name as a witness but inadvertently
placed his signature thereto under the name of the obligor, instead
of in the proper place for a witness to sign, although no facts
were pleaded or proved to show that any fraud had been perpe-
70. Massachusetts. — Hill v. Dun- to put a person on notice of any iu-
3iam, 7 Gray 543. firmity in the paper, it being declared
Michigan. — Hall v. Parker, 37 that contracts are often signed In
LMich. 590. this way. Deering & Co. v. Veal, 25
Minnesota.— State v. Young, 23 Ky. Law Rep. 1809, 78 S. W. 886.
Minn. 551. Where S subscribes his name to
]S'ew York. — Benjamin v. VerNooy, a contract executed by B. & K., and
36 App. Div. 581, 55 N. Y. Supp. 79U. no mention of S.'s name appears lu
Pennsjlvania. — Commonwealth v. the body of the contract, and no
Kendig, 2 Pa. St. 448. reference to his liability is made in
Yormont. — Lovejoy v. Whipple, 18 the contract, it is held that he will
Vt. 379. be deemed to have signed as surety.
Enf^land. — Bloxsom v. Williams, 3 Sanders v. Keller, 18 Idaho 590, 111
B. & C. 233. Pac. 350.
71. Polacheck v. Moore, 114 Wis. In Ohio one who signs a note ou
261, 90 N. W. 175. the face thereof and who in that way
72. Polacheck v. Moore, 114 Wis. becomes a surety for the principal
261, 90 N. W. 175. maker is, by force of Rev. St., §
The fact that a wife affixed her 3178a, primarily liable for the pay-
signature on the second line, and ment of the note. Richards v.
not on the first line for signatures Market Exch. Bank Co., 81 Ohio St.
to a note, has been held not sufficient 348, 90 N. E. 1000.
55 Execution of the Contil:\ct. § 49
trated to induce him to sign the bond in that capacity." But
where one claims that he signed a contract as attesting witness,
and the contract itself imports that his name was signed thereto
•either as principal or surety in order to overcome the presump-
tion that he did sign as surety, as is averred in the petition, it is
incumbent upon him not only to allege and prove that he signed
it as an attesting witness but also that his failure to indicate on
the instrument that such was his relation thereto was caused by
the fraud of the one who seeks to hold him to the obligation of a
surety or was the result of his own mistake.^*
§ 49. Delivery of Contract, — A contract of surety is not com-
plete until delivery of the instrument creating it. The contract
is noit executed until delivery, and it takes effect only from execu-
tion and delivery.^^
In general a bond speaks from its date, but upon proof that it
was delivered at a later time the primary presumption is dis-
placed by one that it was intended to take effect from its delivery-
only, unless by its terms it satisfactorily appears that the parties
intended it to take effect from its date or some other time.'^^ Thus
a bond signed on Sunday and delivered on a secular day, is not
•executed until delivered, and, hence, the signing on Sunday did
not invalidate it.''^ However, in some States an instrument exe-
■cuted on Sunday is void, though delivered on a secular day.^^ A
delivery to one of several obligees is a sufficient delivery ; it is not
73. United States Fidelity & Guar- Wend. 501; Draper v. Romeyn, 18
anty Co. v. Siegmann, 87 Minn. 175, Barb. 166,
^1 N. W. 473, holding that the bond Peiiusj iyania, — Rumberger v.
being still in the hands of one of the Golden, 99 Pa. St. 34.
original parties no element of Execution and deliyery sufficiently
estoppel was involved. ayerred where petition alleges that
74. Green v. May (Ky. C. A. 1912), by the terms of the contract and
147 S. W. 428. bond the sureties bound themselves,
75. Indiana. — Abel v. Alexander, etc. North St. Louis Planing Mill
45 Ind. 523. Co. v. Christophel (Mo. App. 1911),
Iowa.— Hunt v. Postlewait, 28 137 S. W. 295.
Iowa 427. 76. Brillion Lumber Co. v. Bar-
Massachusetts. — Wilson v. Powers, nard, 131 Wis. 284, 111 N. W. 483.
130 Mass. 427. 77. State v. Young, 23 Minn. 551.
New York. — Kellogg v. Olmsted, See, also, Richmond v. Moore, 107
25 N. Y. 189; Reynolds v. Ward, 5 111. 429.
, 78. Parker v. Pitts, 73 Ind. 597.
§ 50 Suretyship and Guaranty. 6&
necessary that all the obligees be present when the instrument is
delivered.'"
The obligation of a surety is to the creditor or obligee, and not
to the principal, and hence, the insitrument is of no validity until
after its delivery.^''
The contract becomes complete upon delivery and notice of ac-
ceptance by the obligee is unnecessary.^^
§ 50. Delivery in Escrow. — A deed cannot be delivered to the
grantee in escrow; neither can a bond be delivered in escrow to
the obligee. .So if a bond is delivered to the obligee or his agent,
and not to a stranger, the delivery is absolute, and parol evidence
of conditions qualifying the delivery is inadmissible.^^ But in a
recent case in North Carolina it is decided that it is competent to
show that a written instrument to answer for the faithful dis-
charge of the duties of another or to answer for his debt or do-
fault was handed by one of the signers to the obligee therein
named, subject to the control of tbe person delivering it, or upua
an agreed condition and not as a completed instrument.*^
It is said that a deed may be delivered to a co-obligor in escro'iT
or to the principal by the surety.*'* This rule must be qualified,
because there may be eases in which the obligor may, by his neg-
ligence, impart to the depositary of the instrument delivered in
escrow, such an apparent right to deliver it in an unqualified form
to the obligee, as to prevent the obligor from setting up the ex-
istence of a condition that was never complied with before the
instrument became deliverable. Thus, in case of a perfect bond
79. Moss V. Riddle, 5 Cranch. (U. 83. Dunlap v. Millett, 153 N. C.
S.) 351, 3 L. Ed. 123. 317, 69 S. E. 222, holding that when
80. Benjamin v. Ver Nooy, 36 App. there is evidence that the employee,
Div. (N. Y.) 581, 55 N. Y. Supp. 796. for the performance of whose duties
81. Singer Mfg. Co. v. Freerks, 12 the bond was given, had delivered
N. D. 595, 98 N. W. 705; Hargis v. such instrument to the president of
Fidelity Mutual Life Ins. Co., 29 the corporation for which he acts,
Okla. 195, 117 Pac. 794; Haupt v. upon the understanding that it was
Cravens & Co., 56 Tex. Civ. App. 253, to be delivered to the board of di-
120 S. W. 541. rectors when another had signed as
82. Ordinary v. Thatcher, 41 N. J. surety, the person to whom it was
L. 403; Worrall v. Munn, 1 Seld. delivered was a mere depository un-
229; Cocks v. Barker, 49 N. Y. 107. til the condition was complied with.
Note cannot be so delivered. Neely 84. State Bank v. Evans, 15 N. J.
T. Lewis, 10 111. 31. L. 155.
&% Execution of the Contract. § 51
on its face, executed by sureties and by them delivered in escrow
to the principal obligor, who delivers it in the ordinary course of
business to the obligee, the delivery is absolute and valid; be-
cause the principal obligor had been clothed with an apparent
right to transfer the bond without qualification, and as the obligee,
receiving it in good faith, would be unavoidably deceived by such
conduct, it must be considered a valid delivery.*^ So a condition
imposed by a surety that an indemnity bond be furnished him
does not release him from liability where he entrusts the paper,
icomplete upon its face, to a co-surety who delivers it to the
obligee having no knowledge of such condition.^^ Delivery to the
obligee without notice of the condition, or any circumstances to
arouse his suspicion, makes the delivery valid, and the surety
will be liable. Such obligee is considered an innocent holder for
value.^^ But a delivery to a third party and a stranger to the
suit, and which is a mere delivery in escrow confers no authority
upon him ito sign the principal's name and to deliver the bond
so as to make a valid delivery.^*
§ 51. Wrongful Delivery by Principal. — The general rule as
to the wrongful delivery of a bond by the principal, is this: A
bond perfect upon its face, apparently duly executed by all whose
names appear therein, purporting to be signed by the several
obligors and actually delivered by the principal without sitipula-
tion, reservation or condition, cannot be avoided by the sureties
upon the ground that they signed it on condition that it should
not be delivered unless it should be executed by other persons who
did not execute it, when the obligee receives it in good faith, or is
an innocent party.*^
85. Dair v. United States, 16 Wall, of Norway v. Boddicker, 105 Iowa
(U. S.) 1, 21 L. Ed. 491; Wolf v. 548, 75 N. W. 632.
Driggs, 44 N. J. Eq. 363, 14 Atl. 480; Kansas. — Johnson v. Weatherwax,
Russell V. Freer, 56 N. Y. 67. 9 Kan. 75.
86. Hendry v. Cartwright, 14 N. M, Missouri.— State v. Potter, 63 Mo.
72. 89 Pac. 309, 8 L. R. A. (N. S.) 212.
1056. 88. Horton v. Stone, 32 R. I. 499,
87. Illinois.— Smith v. Peoria Co., 80 Atl. 1.
69 111. 412. 89. United States.— Ware v. Allen,
Indiana.— State v. Pepper, 31 Ind. 128 U. S. 590, 9 Sup. Ct. 174, 32 L.
76. Ed. 563; Butler v. United States, 21
Iowa.— Benton County Sav. Bank Wall. 272, 22 L. Ed. 614.
§ 51 SUKETYSIIIP AND GUARANTY. 58
The principle of estoppel applies where a surety has affixed his
eigiiature upon condition that another surety be obtained, intrusts
the writing, which is regular on its face, to the principal and the
latter delivers it to the obligee who has neither actual nor con-
structive notice of such condition and who is misled to his in-
Alabama. — Evans v. Daugherty, 84 Co. v. American Bonding & Trust
Ala. (iS, 4 So. 592. See Wliite Sew- Co., 72 Neb. 100, 100 N. W. 138; Hid-
ing Machine Co. v. Saxon, 121 Ala. dleboro Nat. Bank v. Richards, 55
399, 25 So. 784. Neb. 682, 76 N. W. 528; Stoner v.
Arkansas. — Williams v. Morris Keith County, 48 Neb. 279, 67 N. W.
(1911), 138 S. W. 564. 311; Cutler v. Roberts, 7 Neb. 4.
Ueorg'ia. — Lewis v. Commissioners, Kew York. — Russell v. Freer, 56
70 Ga. 486. N. Y. 67, questioning People v. Bost-
llliuois. — Chicago v. Gage, 95 111. wick, 32 N. Y. 445, which was cited
593; State v. Supervisors, 59 111. 412. in Whitford v. Laidler, 94 N. Y. 146.
Indiana. — State v. Peffer, 31 Ind. Oregon. — Wallenberg v. Sykes, 49
76, overruling Pepper v. State, 22 Ore. 163, 89 Pac. 148; Baker v. Hunt-
Ind. 399. ington, 46 Ore. 275, 79 Pac. 187.
Iowa. — Sawyer v. Campbell, 107 Tennessee. — Lookout Bank of
Iowa 397, 78 N. W. 56; Benton Morristown v. Aull, 93 Tenn. 645, 27
County Savings Bank of Norway v. S W. 1014; Dunn v. Garrett, 93
Boddicker, 105 Iowa 548, 75 N. W. Tenn. 650, 27 S. W. 1011; Jordan v.
€32, overruling Daniels v. Gower, 54 Jordan, 10 Lea 124.
Iowa 319, 3 N. W. 424, 6 N. W. 525. Texas.— First National Bank of
Kansas. — Doorley v. Lumber Co., Terrell v. Burns (Civ. App. 1910J,
4 Kan. App. 93, 46 Pac. 195. 126 S. W. 34; Seaton v. McReynolds
Maine.— Lewiston v. Gagne, 89 Me. (Civ. App. 1903), 72 S. W. 874; For-
395, 36 Atl. 629, 56 Am. St. Rep. 632; rest v. White Sewing Mach. Co. (Civ.
State V. Peck, 53 Me. 284. App. 1902), 67 S. W. 340.
Massachusetts. — White v. Duggan, Virginia. — Nash v. Fugate, 32
140 Mass. 18, 2 N. E. 110; Thomas v. Gratt. 595.
Bleakie, 136 Mass. 568. Wisconsin.— Belden v. Hurlbut, 94
Michigan. — McCormick v. Bay Wis. 562, 69 N. W. 357.
City, 23 Mich. 457. As to surety signing upon condi-
Minnosota. — Board of Education tion, see, also, § 129 herein.
V. Robinson, 81 Minn. 305, 84 N. W. It is a rule that a surety who signs
105, 83 Am. St. Rep. 374; Clarke v. a bond upon the condition that it be
Williams, 61 Minn. 12, 62 N. W. 1125; signed by other sureties is not re-
State V. Young, 23 Minn. 89. leased from liability thereon because
Missouri. — State v. Potter, 63 Mo. the others did not sign, unless notice
212, questioning Ayres v. Milony, 53 of the condition on which his signa-
Mo. 516. ture was obtained is brought home
Montana. — Kenck v. Parchen, 22 to the obligee. Johnson County v.
Mont. 519, 57 Pac. 94, 74 Am. St. Rep. Chamberlain Banking House, SO Neb.
625. 96, 113 N. W. 1055.
Nebraska. — American Radiator It is a question for the jury
59 Execution of the Contract. § 51
jury.®" iSo the possession of a bond by the principal will be pre-
sumed to be rightful, and having rightful possession his delivery
of it is binding upon the sureties, even without their assent,
there being nothing on the face of the bond, or in any of the
attending circumstances, to indicate that there was any fact or
circumstance which should preclude the acceptance of the bond.^^
And a note signed by a surety as a joint maker in fact land left
in the hands of his principal therein, or with the agent of his
principal, who procured him to sign it, to be delivered only on
condition that it be first signed by ano-ther surety, is binding on
the surety so signing it though it is delivered to the payee in vio-
lation of such condition, provided that the payee had no notice
thereof.^"
But if the obligee has notice of such facts as would cause a
person of reasonable prudence to investigate and discover that the
delivery was not authorized, then he cannoit hold the surety
liable.^^ And if the surety applies to the creditor for information
whether the payee had notice of There cannot be a guarantor in a
such an agreement. Williams v. contract in which it is expressed
Morris (Ark. 1911), 138 S. W. 464. that both guarantor and principal
Pleading. In an action by the should be bound, if both do not sign
obligee to enforce the obligation in accordance with the condition of
against the sureties on a bond not the contract. Selby v. City of New
executed by the principal, the com- Orleans, 119 La. 900, 44 So. 722.
plaint should set out the fact that 92. Williams v. Morris (Ark.
the sureties waived its execution by 1911), 138 S. W. 564.
the principal and authorized its de- Rule applies in case of notes.
livery to the obligee as a valid obli- Sawyers v. Campbell, 107 Iowa 397,
gation. In the absence of such alle- 78 N. W. 56; Dooley v. Farmers &
gations the complaint does not state Mechanics' Lumber Co., 4 Kan. App.
facts sufficient to constitute a cause 93, 46 Pac. 195.
of action and upon the trial the 93. Colorado. — Byers v. Gilmore,
sureties are entitled to judgment 10 Colo. App. 79, 50 Pac. 370.
upon the pleadings. Bjoin v. Anglim, Illinois. — Diefenthaler v. Hall, 96
97 Minn. 526, 107 N. W. 558. 111. App. 639.
90. Wallenberg v. Sykes, 49 Ore. Indiana. — Deering Harvesting Co.
163, 89 Pac. 148. v. Peugh, 17 Ind. App. 400, 45 N. E.
91. North St. Louis Planing Mill 808.
Co. v. Essex, 157 Mo. App. 18, Iowa. — Benton County Savings
137 S. W. 295, citing Phillips v. Bank of Norway v. Boddicker, 105
Schall, 21 Mo. App. 38, 42; State, to Iowa 548, 75 N. W. 632, 45 L. R. A.
Use V. Potter, 63 Mo. 212, 21 Am. 321, 67 Am. St. Rep. 310.
Rep. 440.
§ 51
Suretyship and Guaranty.
60
respecting the principal which the creditor has and may prop-
erly give, but which he withholds without sufficient cause, or if
he knowingly gives false information, he and not the surety must
suffer the damage occasioned by the wrong. ^*
So if the creditor promises to look alone to the principal for
payment, and the surety, in reliance on that promise, surrenders
securities held for his indemnity, or is induced to omit to pro-
cure security, or otherwise changes his position in reference to
the principal, he then is no longer responsible for the perform-
ance of the obligation.^^ Whenever the obligee has notice that
the surety signed upon condition which has not been fulfilled,
then he is not an innocent holder, and the surety is not bound.*^
Kentucky. — Barber v. Riiggles, 27
Ky. Law Rep. 1077, 87 S. W. 785.
Minnesota. — Deering & Co. v.
Shumspik, 67 Minn. 348, 69 N. W.
1088.
New York.— United States Life Ina.
Co. V. Salmon, 157 N. Y. 682, 51 N. E.
1094.
PennsylTania. — Columbia Ave.
Trust Co. V. King, 227 Pa. 308. 76
Atl. 18.
South Dakota,— State v. Weekes,
12 S. D. 339, 81 N. W. 629.
Washington. — City of Seattle v.
Griffith Realty & Banking Co., 28
Wash. 605, 68 Pac. 1036.
Wisconsin. — Belden v. Hurlburt,
94 Wis. 562, 69 N. W. 357, 37 L. R. A.
853.
If from face of instrument the
obligee has notice of such a condi-
tion, the surety is not bound. Hall
V. Smith, 14 Bush. (Ky.) 604; Baker
County V. Huntington, 46 Oreg. 275,
79 Pac. 187.
See Hunter v. First National Bank
of Ft. Wayne, 172 Ind. 62, 87 N. E.
734.
Where a joint bond is delivered to
the obligee and contains only the
signature of the surety it is imma-
terial whether the former had no-
tice that the principal was to sign
before delivery, as the obligee is
bound to take notice of all facts dis-
closed on the face of the papers and
the instrument indicating that it
was the intention that the principal
should sign, it is incomplete on its
face. Crawford v. Owens, 79 S. C.
59, 60 S. E. 236.
Constructire notice sufficient.
Benton County Savings Bank of Nor-
way v. Boddicker, 105 Iowa 548, 75
N. W. 632, 67 Am. St. Rep. 310, 45 L.
R. A. 321.
Evidence of conversations at time
of signing, see People to Use of Na-
tional Sewer Pipe Co. v. Sharp, 133
Mich. 378, 94 N. W. 1074, 10 Det. Leg.
News 217.
94. Wolf V. Madden, 82 Iowa 114,
47 N. W. 981; Powers Dry-Goods Co.
V. Harlin, 68 Minn. 193, 71 N. W. 16.
See §§ 140 et seq, as to effect of
concealment of facts and duty to dis-
close.
95. Whitaker v. Kirby, 54 Ga. 277;
Harris v. Brooys, 21 Pick. (Mass.)
195; Bank v. Haskell, 51 N. H. 116.
96. Comstock v. Gage, 91 111. 328;
Deering Harvester Co. v. Peugh, 17
Ind. App 400, 45 N. E. 808; Mark-
land Mining Co, v. Kimme, 87 Ind.
'61 Execution of the Contract. § 52
In order that failure to communicate a fact to the surety in re-
spect to the subject matter of the proposed contract, shall have
the effect of a fraud upon the surety and vitiate the contract, it
must be a faot which necessarily increases the surety's liability or
operates to the prejudice of his interest.^^ And so the mere
failure of the obligee to disclose a fact to the surety, when he is
under no obligation to epeak, is not sufficient to release the
purety.^^
§ 52. Imperfect Instrument. — Of course an instrument should
be complete before the maker or surety delivers it. But if there
is anything on the face of it, or any attending circunjstances to
apprise the obligee that the instrument has been delivered by the
surety to his principal to be delivered to the obligee only upon
certain conditions which have not been fulfilled, then the obligee
is not an innocent holder, and the surety is not liable.^* So where
a bond is not perfect upon its face, because not signed by all the
sureties whose names appear therein or because of material no-
ticeable alterations or erasures therein or because of a lack of
some requirement which the law fixes, a surety may defeat re-
covery thereon by showing the existence of a condition, imposed
at the time of delivery to him by a co-surety, that he was to have
an indemnity bond against his suretyship before the bond was
u^ed.^ When the delivery is made directly to the obligee, it can-
not be regarded as conditional in respect to the party who makes
it, unless the condition is made known to the obligee. If the
obligee knows of the condition attached to the delivery, then he
will be presumed to assent thereto from his acceptance of the in-
strument.^
560; Middleboro Nat. Bank v. Rich- Mullen v. Morris, 43 Neb. 596, 62 N.
ards, 55 Neb. 682, 76 N. W. 528. W. 74; Cutler v. Roberts, 7 Neb. 4.
97. Lake v. Thomas, 84 Md. 608, 36 See §§ 51, 129, herein, as to sign-
Atl. 437. ing on condition.
98. Comstock v. Gage, 91 111. 328; 1. Hendry v. Cartwright, 14 N. M.
Roper V. Sangamon Lodge, 91 111. 72, 89 Pac. 309, 8 L. R. A. (N. S.)
518. 1056.
99. Benton County Savings Bank 2. Ward v. Churn, 18 Gratt. (Va.)
of Norway v. Boddicker, 105 Iowa 801.
548, 75 N. W. 632, 45 L. R. A. 321, 67 See § 50 herein as to delivery to
Am. St. Rep. 310; Crystal Lake Tp. obligee.
V. Hill, 109 Mich. 246, 67 N. W. 121;
§§ 53, 54 Suretyship and Guaranty. 62
Although there may be expectations that there is to be another
surety from the statement of the principal when the bond was
signed by the surety, his bond is binding upon the one signing,
although not signed by the other.''^ Thus, A executed a promis-
sory note payable to the order of B, and induced C and D to sign
as sureties, who signed and re-delivered it to A upon the promise
tliat he would procure other persons named by them also to exe-
cute such note as sureties. In disregard of his promise A deliv-
ered the note to B without procuring the additional sureties agreed
upon ; the sureties C and D were bound.* The agreement must be
written before delivery. Thus, a blank piece of paper signed and
executed by the principal and sureties, which the principal after-
wards fills out according to agreement, is not binding;^ but if
it be a printed blank, such as a note, the surety can sign the
blank and give the principal authority to fill up the note ; and if
wrongfully filled up the surety is bound.^ And a mistake in desig-
nating the payee of a note is held not to relieve a surety, if the
note was indorsed to the person intended.^
§ 53. Surety's Name Not Appearing in the Body of the In-
strument. — If parties sign a bond as sureties, but their names do
not appear in the body of the bond, they are bound.^ So it is not
essential to charge a surety on a bond that his name must appear
in the body of the bond if he otherwise executes it.^ And so
where there is a greater number of signatures than seals on a
bond, two or more of the signers may adopt one seal and thereby
become liable, altliough the names of all the obligors do not ap-
pear in the body of the instrument.^**
^ 54. Principal Not Signing. — In some cases the principal fails
to execute the instrument, and then the question arises, are the
sureties liable ? The courts do not agree, and their decisions
3. Simpson v. Bovard, 74 Pa. St. 7. Bassett v. O'Neil Coal & Coke
351. Co., 140 Ky. 346, 131 S. W. 25.
i. Deardorff v. Foresman, 24 Ind. 8. Neal v. Morgan, 28 111. 524; Pot-
481. ter v. State, 23 Ind. 550; Holmes v.
5. Penn v. Howlett, 27 Gratt. (Va.) State, 17 Neb. 73, 22 N. W. 232.
337. Compare Wiley v. Moor, 17 9. Leith v. Bush, 61 Pa. St. 395;
Serg. & R. (Pa.) 292. Danker v. Atwood, 119 Mass. 146;
6. Roberson v. Blevins, 57 Kan. 50, Sheid v. Liebshultz, 51 Ind. 38.
45 Pac. 63. 10. Building Association v. Cum-
mings, 45 Ohio St. 664, 16 N. E. 841.
63 Execution of the Contract. § 54
are in conflict. In many jurisdictions the sureties are liahle,
though the name of the principal is not subscribed to the instru-
ment."
In a. recent case in the United States Circuit Court of Appeals
the rule is stated that where the principal named in the bond
would be liable in the absence of the bond for the acts or omis-
sions which constitute the breach of its conditions in suit, the fail-
ure of the principal to sign the bond does not relieve the surety
who has executed and caused, or permitted, it to be delivered to
the O'bligee from its liability for the breach of its condition. ^^
So if the bond is not executed by the principal, if his name is
11. Alabama — McKissach v. Mc- See § 54 herein.
Clendon, 133 Ala. 558, 32 So. 486. 12. Empire State Surety Co. v..
California, — Kurtz v. Forquer, 94 Carroll County (C. C. A. 1912), 194
Cal. 91, 29 Pac. 413. Fed. 593, citing the following cases:
Illinois. — Trustees of Schools v. United States. — United States Fi-
S'Cheik, 119 111. 579, 8 N. E. 189. delity & Guaranty Co. v. Haggart, 91
Kansas.— Tillson v. State, 29 Kan. C. C. A. 289, 297, 163 Fed. 801, 809;
452; Johnson v. Weatherwax, 9 Kan. St. Louis Brewing Ass'n v. Hayes,
75. 38 C. C. A. 449, 97 Fed. 859.
Maine. — State v. Pack, 53 Me. 284; Alabama. — United States Fidelity
Haskins v. Lombard, 16 Me. 140; & Guaranty Co. v. Union Trust & S.
Scott V. Whipples, 5 Me. 336. Co., 142 Ala. 532, 38 So. 177.
Massachusetts. — Herrick v. John- Arizona. — Pima County v. Snyder,
son, 11 Met. 26. 5 Ariz. 45.
Missouri.— State v. Peyton, 32 Mo. Connecticut. — Lovejoy v. Isbell, 70
App. 522. Conn. 557, 40 Atl. 531.
Nebraska.— State v. Hill, 47 Neb. Illinois.— Trustees of Schools v.
456, 66 N. W. 457; Bollman v. Pose- Scheik, 119 111. 579, 8 N. E. 189, 192.
walk, 22 Neb. 761. Maine.— City of Deering v. Moore,
New York.- Parker v. Bradley, 2 86 Me. 181, 29 Atl. 988, 41 Am. St.
Hill 584; Williams v. Marshall, 42 Rep. 534.
Barb. 524. Michigan.— Gibbs v. Johnson, 63
Ohio. — State v. Bowman, 10 Ohio Mich. 671, 30 N. W. 343.
445. Montana. — Woodman v. Calkins,
Pennsylvania.— Loew v. Stockney, 13 Mont. 363, 34 Pac. 187, 40 Am. St..
68 Pa. St. 226; Grimm v. School Dist, Rep. 449.
51 Pa. St. 219; Keyeser v. Keen, 17 Ohio.— Johnson v. Johnson, 31
Pa. St. 327. Ohio St. 131; State v. Bowman, 10-
Texas. — Mitchell v. Hydraulic Ohio 445.
Building Stone Co. (Civ. App. 1910), Texas.— San Roman v. Watson, 54
129 S. W. 148. Tex. 254.
Canada.— Miller v. Ferris, 10 Up- Wisconsin.— Douglass County v..
per Can. 423. Bardon. 79 Wis. 641, 48 N. W. 969.
g 54
SiURETYSHIP AND GUARANTY.
64
mentioned in the body of the instrument, the surety is bound,
though the obligor does not sign the bond/^ Other authorities
hold that such bonds are of no validity, and that the sureties are
not liable.^*
In a recent case in Missouri it is said that the Supreme Court
of that State has held that a common law bond not signed by the
principal is void as to the sureties where it shows on ita face
that it is not a complete instrument without such signature but
that the court seems by its reasoning clearly to recognize that the
13. Indiana. — Wildcat Branch v.
Ball, 45 Ind. 213.
Kansas.— Tillson v. State, 29 Kan.
452.
Maine.— Chase v. Hathorn, 61 Me.
505.
Michigan. — Adams v. Kellogg, b3
Mich. 616.
Missouri.— State v. Peyton, 32 Mo.
App. 522.
Nebraska. — Bollman v. Pasewalk,
22 Neb. 761, 36 N. W. 134.
New York. — Parker v. Bradley, 2
Hill (N. Y.) 584.
Ohio. — Johnson v. Johnson, 31
Ohio St. 131.
Wisconsin. — Douglas County v.
Bardon, 79 Wis. 641, 48 N. W. 969.
14. California. — People v. Hartley,
21 Cal. 585; Sacramento v. Dunlap,
14 Cal. 421.
Connecticut. — Berry v. Burchard,
21 Conn. 602.
Iowa. — Novak v. Pitlick, 120 Iowa
286, 94 N. W. 916.
Louisiana. — Wills v. Dill, 6 Martin
(La.) 665.
Massachusetts. — Goodyear Dental
"Vulcanite Co. v. Bacon, 151 Mass.
460, 24 N. E. 404; Russell v. Anna-
bel, 109 Mass. 72; Bean v. Parker,
17 Mass. 591.
Michigan. — Green v. Kindy, 43
Mich. 279; Hall v. Parker, 39 Mich.
289: Johnston v. Kimball, 39 Mich.
187.
Minnesota. — Bjoin v. Anglim, 97
Minn. 529, 107 N. W. 558; State v.
Austin, 35 Minn. 51.
Missouri. — Gay v. Murphy, 134 Mo.
98, 34 S. W. 1091, 56 Am. St. Rep.
496; Bunn v. Jetmore, 70 Mo. 228.
Montana. — Horton v. Stone, 32 R.
I. 499, 80 Atl. 1.
Nebraska. — Gregory v. Cameron, V
Neb. 414.
New York. — Tully v. Lewitz, 50
Misc. R. 350, 98 N. Y. Supp. 829.
South Dakota. — Board v. Sweeney,
1 S. Dak. 642.
Yerniont. — Fletcher v. Austin, 11
Vt. 447.
A bond purporting to be the obli-
gation of one as principal and of
others as sureties, does not, upon its
face, show any obligation on the
part of such sureties, where it has
been executed only by the sureties.
School District No. 80 v. Lapping,
100 Minn. 139, 110 N. W. 839, citing
State V. Austin, 35 Minn. 51, 26 N. W.
906; Bjoin v. Anglim, 97 Mirn. 526,
107 N. W. 558.
It has been held competent for
sureties to testify that when they
executed a bond they supposed it
had already been signed by the
principal and that they had no in-
tention of delivering the instrument
as a completed and binding obliga-
tion without his signature. School
District No. 80 v. Lapping, 100 Minn.
139, 110 N. W. 849.
65 Execution of the Contract. § 55
sureties would be bound where the bond shows their intention to
bind themselves whether the principal signs or not.^^
In a recent case in Ehode Island in which it is decided that a
bond without the signature of the principal obligor is void as to
tlie sureties the court say in referring to decisions which were
cited holding that such a defect is a mere technical one which will
not release the sureties, that in most of these cases, where a statu-
tory or official ibond was required, it was found that the statute
or regulation under which the bond was given did not require
that the principal should personally sign the bond and that in all
of them it was found that the principal being elected or appointed
to an official position and bound to perform official duties accord-
ing to law, was just as much legally bound for his defaults as if
he had signed the bond and equally liable to reimburse his sureties
for all money required to be paid by them to make good his de-
faults, whether he signed the bond or not.^^
In those jurisdictions where the surety is held liable on such
bonds, he may maintain an action against the officer for any sum
he may be compelled to pay as such surety, notwithstanding such
officer never signed and executed the bond."
§ 55. Alteration of the Instrument. — A material alteration of
a bond or note after its execution, when intentionally made, by
one having an interest in it, and without the consent of the party
bound by it, invalidates the instrument as to such party. The al-
teration destroys the identity of the contract ; therefore, if a party
to a contract who has not consented to the alteration were to be
bound by it, it would be in effect imposing upon him, against his
will, a new contract, as to whose terms he never agreed.^* Thus,
if A borrows of B $1,000 upon his note indorsed by C, and af-
terwards, without; the consent or knowledge of C, but with the
knowledge and consent of B, the note was also by A raised to
15. North St. Louis Planing Mill 119 111. 579, 8 N. E. 189.
Co. V. Essex, 157 Mo. App. 18, 18. Wood v. Steele, 6 Wall. (U. S.)
137 S. W. 295, citing Gay v. Murphy, 80, 18 L. Ed. 725; Chadwick v. East-
134 Mo. 98, 34 S. W. 1091, 56 Am. St. man, 53 Me. 12; Neff v. Homer, 63
Rep. 496. Pa. St. 330.
16. Horton v. Stone, 32 R. I. 499, As to alterations of instrument see
80 Atl. 1, per Parkhurst, J. §§ 100 et seq.
17. Trustees of Schools v. Scheik,
5
§ 56 Suretyship and Guaranty. 6(>
$1,500, as security for the additional $500, which thereupon B
loaned to A, such alteration invalidated the note entirely as to
C.^^ iSuch material alterations apply to contracts of suretyship.^"
The general rule is that an alteration which does not destroy
the identity of a written instrument, nor in any way affects the
liahility thereof of the surety, is not such an alteration as will
release the surety.^^
§ 56. Filling Blanks — As to Surety's Liability. — The surety
may be held liable on a bond which he signs, the bond not being
filled up. Thus, if the surety, relying upon the good faith of the
principal, signs a bond in blank and returns it to the principal,
the surety therehy clothes him with apparent authority to fill
up the blanks at his discretion in any appropriate manner con-
sistent with the nature of the obligation, so that the surety is
bound as to an innocent obligee or payee.^^ Hence, parol author-
ity is sufficient to fill up a sealed instiiiment, and this filling up
is sufficient to hold the surety.^^ A party executing a bond, know-
ing that there are blanks in it to be filled up necessary to make it
a perfect instrument, must be considered as agreeing that the
blanks may be thus filled after he has executed the bond.^* In
such cases the sureties are responsible for the additions that may
be made to the instrument without knowledge of the obligee or
payee.^'
19. Batchelder v. White, 80 Va. Co. v. Muncy, 24 Ky. Law Rep. 2255,
103. 73 S. W. 1030.
20. Smith v. United States, 2 Wall. Massachusetts.— Smith v. Crooker,
(U. S.) 219, 17 L. Ed. 788; Reese v. 5 Mass. 538.
United States, 9 Wall. (U. S.) Missouri.— County v. Wilhite, 2»
13, 19 L. Ed. 541; Stoner v. Keith Mo. App. 459.
County, 48 Neb. 279, 67 N. W. 311; New York.— Ex parte Kerwin, 8
State ex rel. Howell County v. Find- Cow. 118.
ley, 101 Mo. 368, 14 S. W. 111. Pennsylvania.- Stahl v. Berger, 10
As to alterations of instrument Serg. & R. 170.
see §§ 100 et seq. herein. 23. Bartlett v. Board, 59 111. 364;
21. Barker v. Burrows, 51 Cal. 404; Swartz v. Ballou, 47 Iowa 188; Stat©
Bucklen v. Huff, 53 Ind. 74; Sawyer v. Young, 23 Minn. 551.
V. Campbell, 107 Iowa 397, 78 N. W. 24. State v. Pepper, 31 Ind. 76;
56; Bank v. Hyde, 131 Mass. 77. South Berwick v. Hunter, 53 Me. 89;
22. Illinois. — Chicago v. Gage, 95 McCormick v. Bay City, 23 Mich.
111. 593. 457.
Kentncky. — Dow-Hayden Grocery 25. Illinois. — Donnell Mfg. Co. v.
Jones, 49 111. App. 327.
67 Execution of the Contract. § 57
One who saw a surety sign a blank bond may be allowed to
testify as to the facts within his knowledge relating to the sign-
ing of the bond by such person and as to stipulations made by
him at the time. These facts are properly part of the res gestae.^'
§ 57. Negotiable Notes. — The same rule applies to negotiable
notes. Thus, where a party to such an instrument intrusts it to
the custody of another for use with blanks not filled up, whether
it be to accommodate the person to whom it was committed, or to
be used for the benefit of the signer of the same, such instrument
carries on its face the implied authority to fill up the blanks
necessary to perfect the same. And as between such party and
an innocent transferee, the fonner must be deemed the agent of
the party who committed the note to his care in filling the blanks
necessary to perfect the instrument.^^ Thus, sureties signed a
note in blank and left it with the principal. The principal filled
the blank with a larger sum than the sureties had agreed to be-
come liable for, and delivered it to the creditor, who was an in-
nocent holder for value ; in such case the sureties are bound for
the entire amount.^^ So if a surety makes it a condition that an-
other shall sign, and the principal forges the name of the other
surety, the first one will be held.^^ This is on the ground that
where two innocent parties must be losers by the deceit or the
fraud of another, the loss must fall on him who makes it possible
to be thus defrauded.^"
But under the l^egotiable Instrument Law in New York, where
Indiana. — Rich v. Starbuck, 51 Ind. the agent of the payee filled a
87. blank with an amount in excess of
Massachusetts. — White v. Duggan, that agreed upon, it appearing that
140 Mass. 18, 2 N. E. 110; the payee did not know what amount
Danker v. Atwood, 119 Mass. 146. was agreed upon.
New York.— Dedlick v. Doll, 54 N. 28. Fullerton v. Sturges, 4 Ohio
Y. 234. St. 529.
Ohio.— Schuyver v. Hawkes, 22 29. Stoner v. Milliken, 85 111. 218;
Ohio St. 308. York County Ins. Co. v. Brooks, 51
26. Horton v. Stone, 32 R. I. 499, Mo. 506; Selser v. Brock, 3 Ohio St.
80 Atl. 1. 302.
27. Angle v. Insurance Co., 92 U. 30. Stoner v. Milliken, 85 111. 218;
S. 330, 23 L. Ed. 556; Dow-Hayden Donnell Mfg. Co. v. Jones, 49 111.
Grocery Co. v. Muncy, 24 Ky. Law App. 327; Hun v. Nichols, 1 Salk.
Rep. 2255, 73 S. W. 1030, holding that 289.
the sureties were not relieved where
§§ 58, 59 Suretyship and Guaranty. .68
a person has indorsed a blank note he is absolved from liability
thereon unless it is filled up strictly in accordance with the au-
thority given by him and within a reasonable time.^^
^ 58. — Person Signing as Principal. — It is a general rule that a
party cannot contradict his own note or bond. So where one ex-
pressly agrees to be bound as principal, and so signs, he is estopped
from asserting against the obligee or payee that he is a surety.^^
Because when one, who is in reality only a surety, signs expressly
as principal, he must be held in that capacity.^^
§ 59. Estoppel of Surety to Deny Recitals in the Instrument. —
It is a general rule that sureties are estopped to deny the facts
recited in their obligations, whether true or false.^* And there is
said to be no exception to the rule that the fair and voluntary
execution of a sealed instrument is conclusive, upon all who seal
81. Union Trust Co. v. McCrum, Indiana. — Bray v. State, 78 Ind. 68.
145 App. Div. (N. Y.) 409, 129 N. Y. Maine.— Williamson v. Woodman,
Supp. 1078; Neg. Inst. Law, § 33, as 73 Me. 163.
amended by Laws of 1898, ch. 336. Maryland. — Aetna Investment Co.
32. Cprigg V. Bank, 10 Pet. (U. S.) v. Waters, 110 Md. 673, 73 Atl. 712;
257, 9 L. Ed. 416, 14 Pet. (U. S.) Fridge v. State, 3 Gill. & J. 103.
201, 10 L. Ed. 419; Waterville Michigan. — Brockway v. Petted, 79
Bank v. Redington, 52 Me. 466; Mich. 620.
Heath v. Bank, 44 N. H. 174; Dart Minnesota.— Olson v. Royem, 75
iy. Sherwood, 7 Wis. 446. Minn. 228, 77 N. W. 818.
,33. McMillan v. Parkell, 64 Mo. Mississippi. — Havenstein v. Gilles-
286; Picot v. Signiago, 22 Mo. 587; pie, 73 Miss. 642.
Derry Bank v. Baldwin, 41 N. H. Missouri. — Hanley v. Filbert, 73
434; Clermont Bank v. Wood, 10 Vt. Mo. 34.
582. Nebraska. — Thompson v. Rush, 66
See § 210. Neb. 7C8, 92 N. W. 1060.
34. United States. — Bruce v. United New York. — Harrison v. Wilkin,
States. 17 How. 437, 15 L. Ed. 129; 69 N. Y. 412; Thompson v. Denner,
United States v. Bradley, 10 Pet. 365, 16 App. Div. 160, 44 N. Y. Supp. 723.
9 L. Ed. 343. North Carolina, — Pearre v. Folb,
Arkansas.— Norton v. Miller, 25 123 N. C. 239, 31 S. E. 475; Iredel v.
Ark. 108. Barbee, 9 Ired. L. 230.
California, — People v. Huson, 78 Ohio. — Shroyer v. Richmond, 16
Cal. 154. Ohio St. 455.
Connecticnt. — Washington Co. v. England. — Australian Joint Stock
Ins. Co., 26 Conn. 42. Bank v. Bailey (1899), App. Cas. 396.
Georgia. — Hines v. Mullins, 25 Ga.
696.
Q9 Execution of the Contiiact. §§ 59a, 00
it, of everything admitted in it.^^ Thus, sureties on a bond for the
delivery of goods to a party, provided the court should so order,
the recitals in that instrument being that the sheriff had made
seizure and levy on the goods, cannot deny the fact that the sheriff
had made seizure and levy of the goods, because they are estopped
to deny the sufficiency and validity of the seizure of the goods and
levy of the attachment.^®
So where a bond recites that the contract, performance of which
it is given to secure, was executed on a certain date, the sureties
are estopped from asserting that it was actually signed at another
and subsequent date.^^
Where a bond which was executed by a bank, to the state treas-
urer, recited that the treasurer " has determined to and will de-
posit " certain moneys of the state with the bank, but nothing
was said as to the amount or time of such future deposits it was
held that parol evidence was competent to show what was in fact
agreed between the treasurer and the bank, prior to the execution
of the bond.^«
§ 59,a. Estoppel to Deny Validity. — Where a bond is volun-
tarily entered into and the principal enjoys the benefits it was in-
tended to secure, and breach occurs, it is then too late to raise the
question of its validity. The parties are estopped from availing
themselves of such defense.^^
§ 60. Denying Valid Appointment of Principal. — Sureties can-
not deny the valid appointment of their principal to office in
order to avoid liability. In other words, if sureties have signed
the bond they are responsible. Where a bond is voluntarily en-
tered into, the sureties are estopped by the recitals in the bond
which admit the due appointment of ther principal.^" By execut-
es. Town of Point Pleasant v. quoted in Daniels v. Tearney, 12
Greenlee, 63 W. Va. 207, 60 S. E. Otto (U. S.) 415, 26 L. Ed. 187; Town
601. of Point Pleasant v. Greenlee, 63 W.
86. Hanley v. Filbert, 73 Mo. 34. Va. 207, 60 S. E. 601. See, also, Klein
87. Red Wing Sewer Pipe Co. v. v. German National Bank, 69 Ark.
Donnelly, 102 Minn. 192, 113 N. W. 1. 140, 61 S. W. 572, citing Maledon v.
38. Hurlburt v. Kephart, 50 Colo. Leflore, 69 Ark. 140, 61 S. W. 572.
353, 115 Pac. 521. 40. Cutler v. Dickinson, 8 Pick.
39. United States v. Hodson, 10 (Mass.) 387.
Wall. (U. S.) 395, 19 L. Ed. 937, Estoppel by recitals in guardians*
§ 61' SlURETYSHIP AND GuAKANTT. l70
ing the bond they obtain for their principal certain rights of ac-
tion, and therefore cannot escape liability by denying their own.
bond."
And so the sureties are liable, though their principal has been
continued in the same capacity, after he has failed to perform
his duty, of which the surety has not been advised/^ And the
general rule is that sureties cannot deny the appointment to office
of their principal ; that is, set up that such appointment was in-
valid/^ And the fact that the bond is not prescribed by statute
does not necessarily make it invalid, although given by a public
officer as security for the discharge of his duties, if they are not
unlawful ; if voluntarily given, such bonds are binding upon all
the parties."
§ 6i, Sureties Cannot Deny the Incorporation of Corporate
Bodies With Whom Their Principal Deals. — Obligors in a bond
are estopped to deny the corporate existence of bodies to whom it
was given. Thus, the sureties on a treasurer's bond cannot deny
the validity of the corporate organization of the corporation who
is the obligee.^^ And so where a person becomes surety upon a
bond given to a corporation, he cannot deny its legal existence."
Neither can sureties deny the acts of the corporation, by declar-
ing that the corporate authority has been extended beyond legiti-
mate bounds."
bonds as to appointment of princi- States v. Tingey, 5 Pet. (U. S.) 129,
pals, see § 266. 5 L. Ed. 115, 131; Tylor v. Hand, 7
Estoppel by recitals in bonds of How. (U. S.) 573, 581, 12 L. Ed. 824.
private officers and agents as to ap- Compare Thomas v. Burrus, 23 Miss,
pointment of principal, see § 299. 550; Hudson v. Winslow, 35 N. J. L.
41. Gray v. State, 78 Ind. 68; 437.
Shroyer v. Richmond, 16 Ohio St. 45. Father Matthew Soc. v. Fitz-
455. Williams, 84 Mo. 407.
42. Home Ins. Co. v. Holway, 55 46. Ft. Wayne, etc., Co. v. Deane,
Iowa 571, 8 N. W. 457; Phooenix Ins. 10 Ind. 563; White v. Coventry, 29
Co. V. Findley, 59 Iowa 591, 13 N. W. Barb. (N. Y.) 305; Trumbull Co. v.
738. Horner, 17 Ohio 407; Singer Mfg. Co.
48. Otto V. Jackson, 35 111. 349; v. Bennett, 28 W. Va. 16.
Williamson v. Goodman, 73 Me. 163; 47. Indiana. — Wilson v. Monticello.
White V. Weatherbee, 126 Mass. 450; 85 Ind. 10.
Burnet v. Henderson, 21 Tex. 588. Michigan.— Denison v. Gibson, 24
44. United States v. Bradley, 10 Mich. 187.
Pet. (U. S.) 361, 9 L. Ed. 343; United
^1 Execution of the Contract. §§ 62-64
§ 62. Denying Court's Jurisdiction. — When there is an action
on a bond given in the ordinary course of legal business, the sure-
ties will be estopped to deny the jurisdiction of the court. In
many cases bonds are given, and when accepted by the court the
principal and sureties are estopped to deny their validity/* Thus
when the principal tenders a bond to the court, such as the law
requires, justice requires that neither the principal nor the sure-
ties shall be permitted to question the validity of the bond or that
the court did not have jurisdiction of the subject-matter.^*
§ 63. Attacking Bond in Collateral Proceedings. — Neither can
the principal or sureties attack a bond in collateral proceedings
upon the ground that it is void.^" And so sureties for purchase-
money, with notice of defects in the title to the land purchased,
are estopped from setting up the bad title in a suit for the pur-
chase money.^^ Under the same principle a surety on a bond for
alimony cannot deny that the woman receiving the alimony was
the wife of his principal.^^
§ 64. Relations After Judgment. — After the debt has been re-
duced to judgment, the relation of principal and surety has not
heen changed. The merger of the contract into judgment does not
change their relations. Its only effect is a change in form of the
credit as between the principal and surety.^^ The judgment does
■not abrogate the relation of suretyship between the parties."
Missouri. — Mississippi Co. v, 51. Ellis v. Adderton, 88 N. C. 472.
Jackson, 51 Mo. 23. 52. Commissioners v. O'Rourk, 34
New York.— People v. Burton, 5 Hun (N. Y.) 349.
Seld. 176; State v. Buffalo, 2 Hill. 53. Massachusetts. — Davis v. May-
(N. Y.) 434. nard, 9 Mass. 242.
PennsylTania. — Baehmer t. Minnesota, — Moss v. Pettingill, 3
Schuylkill, 49 Pa. St. 452, Minn. 217.
Tennessee.— McLean v. State, 8 MissonrL— Smith v. Rice, 27 Mo.
Heisk. 22. 505
48. Waddell v. Bradway, 84 Ind. ^^^ Tork.-Bangs v. Strong, 4 N.
537; Harbough V. Albertson, 102 Ind. ^ ^^^
69, 1 N. E. 298. \^. '
49. Carver v. Carver, 77 Ind. 498. Ohio.-Blazer v. Bundy, 15 Ohio St.
50. Stovall V. Banks, 10 Wall. (U. ^'^•
S.) 583, 19 L. Ed. 1036; Nevitt v. Pennsylvania,— Commonwealth v.
Woodburn, 160 111. 203, 43 N. E. 385; Miller, 8 Serg. & R. 452.
Monteith v. Commonwealth, 15 Gratt. 54. Carpenter v. Denon, 5 Ala,
<Va.) 172, 185. 710; Cowen v. Culbert, 3 Ga. 239;
§ 65 Suretyship and Guaranty. 72^
§ 65. Effect of Judgment on Surety. — It is said to be a gene-
ral rule that a judgment against a principal is admissible as
prima facie evidence in an action against the surety,"" and that
sureties upon official bonds are not concluded by a decree or
judg-ment against their principal unless they have had their day
in court or an opportunity to be heard."^ There is, however, a
large class of cases especially those of guardian and administra-
tor bonds which are sometimes spoken of as exceptions to the
Chambers v. Cochran, 18 Iowa 159; Georgia. — Bennett v. Graham, 71
Morton v. Rice, 19 Mo. 263. Ga. 211 (administrator's bond).
i>a. United States. — Moses v. United Iowa. — Charles v. Hoskins, 14
States, 166 U. S. 571, 41 L. Ed. 1119, Iowa 471 (sheriff's bond).
17 Sup. Ct. 682, holding that the judg- Kansas.— Park v. Ensign, 66 Kan.
ment in an action on the bond of a 50, 71 Pac. 230, 97 Am. St. Rep. 352
public officer was properly admitted (promissory note),
in evidence against the surety and Kentucky. — Commonwealth v.
proved, at least prima facie, a Bracken, 17 Ky. Law Rep. 785, 32 S.
breach of the bond by showing the W. 609 (guardian's bond),
amount of public moneys which the Maryland. — Jenkins v. State, 76
principal had failed to faithfully ex- Md. 255, 23 Atl. 608, 790 (adminis-
pend and honestly account for. tration bond).
Union Guaranty & Trust Co. v. Tennessee.— Barksdale v. Butler, 6
Robinson, 79 Fed. 420, 24 C. C. A. Lea 450 (administration bond).
650, holding a judgment against an Virginia. — Craddock v. Turner, 6
insurance company, in the absence Leigh 116 (judgment against admin-
of fraud or collusion to be prima istrator not conclusive against
facie evidence against the surety in surety) ; Jacobs v. Leigh, 2 Leigh 393
a bond executed by the company for (bond of deputy sheriff),
the benefit of its policy holders. West Virginia,- State v. Nutter, 44
Arkansas.— Baxter County Bank v. W. Va. 385, 30 S. E. 67 (bond to ob-
Ozark, 98 Ark. 143, 135 S. W. 819, tain license to sell liquors),
holding a judgment against an in- Wisconsin. — Grafton v. Hinkley,
surance company, in the absence of 111 Wis. 46, 86 N. W. 859 (contrac-
fraud or collusion, to be prima facie tor's bond).
evidence against the surety in a bond Judgment by default is prima facie
executed by the company for the evidence (contractor's bond) :
benefit of its policy holders. United States v. Rundle, 107 Fed.
Smith v. Smithson. 48 Ark. 261, 227, 46 C. C. A. 251, 52 L. R. A. 505.
holding an order of the probate See, also, Jacobs v. Hill, 2 Leigh 393,
court, which was a final settlement holding a judgment by confession to
of the guardian's accounts after the be admissible evidence against surety-
close of his trust, which fixed on bond of deputy sheriff,
the amount of his deficit sufficient to 56. Irwin v. Backus, 25 Cal. 214;
lay the foundation for an action Xevitt v. Woodburn, 160 111. 203, 4J
against the surety. N. E. 385.
V3
Execution of the Contract.
§ 65
general rule," which sustain the doctrine that sureties are bound
by the judgment against their principal to the same extent that
their principal is,^** and such judgment is conclusive against the
67. Irwin v. Backus, 25 Cal. 214;
Nevitt V. Woodburn, 160 111. 203, 43
N. E. 285.
58. United States, — Stovall v.
Banks, 10 Wall. 583, 19 L. Ed. 1036,
holding that sureties in an adminis-
tration bond are bound by a decree
against their administrator finding
assets in his hands and non-payment
of them over, to the same extent to
which the administrator himself is
bound.
Alabama. — Martin v. Tally, 72 Ala.
23, holding that a decree rendered
against an administrator, on final
settlement of his accounts, is con-
clusive on his sureties, in the ab-
sence of fraud or collusion, as to the
matters of account, but not as to the
factum of the bond, or other defenses
personal to the sureties.
California. — Irwin v. Backus, 25
Cal. 214, holding that administration
bonds form an exception to the gen-
eral rule that sureties upon official
bonds are not concluded by a decree
or judgment against their principal
unless they have had their day in
court or an opportunity to be heard
in their defense.
Georgia. — Waldrop v. Wolff, 114
Ga. 610, 40 S. E. 830, holding that the
surety on a bond given by defendant
in an action of trover for the event-
ual condemnation money is bound
by the judgment against the defend-
ant and cannot, after judgment,
raise any question which could have
been raised by the principal before
judgment.
Illinois. — Moulding v. Wilhartz,
169 111. 422, 48 N. E. 189, holding that
the sureties on the bond of an as-
signee in insolvency are concluded
by the findings of the County Court
as to the amount unaccounted for
that came to the hands of the as-
signee and which he was ordered
by the County Court to pay over and
that the sureties are not entitled to
have such matter retried.
Nevitt V. Woodburn, 160 111. 203, 43
N. E. 285, holding that the liability
of a surety upon an administration
bond is fixed by the judgment against
his principal, sureties upon such
bonds being an exception to the gen-
eral rule as to official bonds.
Housh V. People, 66 111. 178, hold-
ing an order from court, having ju-
risdiction, finding the amount in an
executor's hands, appointing a suc-
cessor, and requiring him to pay
over such sum to the successor to
be conclusive as to the amount due
from the executor to the estate, un-
less impeached for fraud.
Indiana. — See State ex rel. Favor-
ite v. Slauter, 80 Ind. 597, holding
that a guardian's final report, settle-
ment and discharge by the court are
res adjudicata of all matters therein
and cannot be collaterally attacked
in a suit upon the bond.
Kentucky. — Hindman v. Lewman,
23 Ky. Law Rep. 179, 63 S. W. 478,
63 S. W. 478, holding that in an action
to ascertain the amount of defalca-
tion of an assignee for the benefit of
creditors his sureties are bound by
the judgment, whether parties to the
action or not.
Massachusetts. — McKim v. Haley,
173 Mass. 112, 54 N. E. 257, holding
that sureties on an administrator's
bond are bound by a judgment re-
covered against him.
g 65 SuRETYiSllIP AND GuAKANTY. 74
sureties in the absence of fraud or collusion. ^^ And if the effect
of the obligation is such that the surety is to be bound by the re-
sults of the litigation between others he is, in the absence of fraud
or collusion, bound by such results. Where the bond is not merely
to pay damages, but is an indemnity against liability by judg-
ment, it is conclusive.'^*^ If it undertakes to pay such judgment
as may be recovered, that judgment is conclusive, because that
judgment is the event on the happening of which the surety agrees
to pay."
Heard v. Lodge, 20 Pick. 53, hold- Court on the guardian's accounting
ing same as preceding case. as to the amount due from him to
Ohio. — Richardson v. Peoples' Na- the ward, where the guardian was
tional Bank, 57 Ohio St. 299, 48 N. E. duly cited and the sureties appeared
1160, holding that in an action on at the hearing. Also holding that
replevin undertaking it is not com- they would be concluded without
petent for the surety to question the such an appearance on their part,
validity of the judgment against the 59. Alabama. — Martin v. Tully, 72
principal on any ground other than Ala. 23.
fraud or mistake. In such case the Illinois. — Elder v. Prussing, 101
judgment is as conclusive against 111. App. 655.
the surety as against the principal. Kansas. — Kennedy v. Brown, 21
O'Conner v. State, 18 Ohio 225, Kan. 171.
holding judgment against adminis- Massacbusetts. — Way v. Lewis, 115
trator conclusive, except for fraud Mass. 26.
or mistake. Ohio. — Richardson v. People's Na-
Wiscousin.— Meyer v. Barth, 97 tional Bank, 57 Ohio St. 299, 48 N.
Wis. 352, 72 N. W. 748, holding that E. 1160.
In the absence of fraud or collusion, Washington. — Friend v. Ralston,
the sureties upon a probate bond 35 Wash. 422, 77 Pac. 794.
are concluded by the decree of the Wisconsin. — Meyer v. Barth, 97
proper court, rendered upon an ac- Wis. 352, 72 N. W. 748.
counting of their principal, as to the 60. California. — Riddle v. Baker,
amount of their principal's liability, 13 Cal. 295.
even though they were not parties Michigan. — Hosie v. Hart, 141
to such accounting. I\Iich. 679, 105 N. W. 32; People v.
Holden v. Curry, 85 Wis. 504, 55 Rice, 79 Mich. 354, 44 N. W. 790.
N. W. 965, holding that a judgment New York. — Conner v. Reeves, 103
of the County Court, upon settle- N. Y. 527, 9 N. E. 437.
ment of the final account of an ad- Tirginia. — Crawford v. Turk, 24
ministrator de bonis non, charging Graft. 176.
him with a certain sum, is conclu- West Virginia. — See State v. Nut-
sive as against the sureties. ter, 44 W. Va. 385, 30 S. E. 67.
Shepard v. Pebbles, 38 Wis. 373, 61. Crawford v. Turk, 24 Gratt.
holding that sureties on a guardian's (Va.) 176; State v. Nutter, 44 W. Va.
bond for a sale of real estate are 385, 30 S. E. 67.
concluded by the order of the County
;75( Scope of Sueety Contbact. § 66
CHAPTER IV.
SCOPE OF SURETY CONTBACT.
Section 66. Extent of Surety's Contract.
67. Construction of Contract — At Law.
67a. Where Bond Makes a Contract a Part Thereof.
67b. Statutory Bond — Estoppel.
68. Construction of Contract — In Equity.
69. Liability for Past Defaults of Principal.
70. Liability Limited to a Fixed Time.
71. Time Limited to a Subsequent Period
72. Employment or Condition Changed by Employer or by the
Legislature.
73. Sureties in Legal Proceedings — Order of Liability.
74. Only Liable for Penalty of Bond.
75. Misappropriation of Funds.
76. Increase of Funds.
77. Surety May Limit His Liability.
78. Forged Signatures.
79. Additional Employment.
80. Act of Principal Not in Line of His Business.
SI. Becoming Surety for Payment of Rent.
82. Tenant Holding Over.
83. Principal Associating With Others.
84. Several Principals — Partnership.
85. Death of Surety.
86. Construing a Joint Obligation as Several.
87. Revoking Suretyship.
88. Default of Principal.
89. Revival of Surety's Liability.
90. Part Payment by One of Several and Joint Debtors.
91. Absence of Principal from State.
92. Disability of Principal.
93. Conflict of Laws.
Sec. 66. Extent of Surety's Contract. — It is well established
that the obligation of a surety is not to be extended beyond what
the terms of the contract fairly import. So a surety has a right
to stand upon the very terms of his contract, and if he does not
assent to any variance of it, and a variation is made, such varia-
tion operates to annul his contract.^ Thus, when a surety stands
1. United States.— Lee v. Dick, 10 United States, 167 Fed. 460, 03 C. C.
Pet. 482, 9 L. Ed. 503; McMullen v. A. 96.
§ 06
Suretyship and Guakanty.
76
bound for the fidelity or capacity of a principal in an ofiicial ca-
pacity, if the nature of the employment is so changed by the act
of the employer that the risk of the surety is materially altered
from what was contemplated by the parties at the time of enter-
ing into the bond, the surety has a right to say that his obligation
does not extend to such altered state of things ; this is the general
rule recognized by all courts.^
So the surety cannot be held beyond the precise terms of his
contract. This is the well settled rule, both at law and in equity.*
District of Columbia.— Catholic
University of America, 32 App. D. C.
195.
Indiana,— Parker Land & Improve-
ment Co. V. Ayers, 43 Ind. App. 513,
87 N. E. 1062.
Iowa. — Van Buren County v.
American Surety Co., 137 Iowa 490,
115 N. W. 24.
Michigan. — Rodgers Shoe Co. v.
Coon, 157 Mich. 547, 122 N. W. 133;
Loclie v. McVean, 33 Mich. 473.
New Jersey. — Hoey v. Jarman, 39
N. J. L. 523.
New York. — Crist v. Burlingham,
62 Barb. 351.
Pennsylvania. — Bauschard Co. v.
Fidelity & Casualty Co. of New York,
21 Pa. Super. Ct. 370.
England. — Australian Joint Stock
Bank v. Bailey (1899), App. Cas.
396.
See, also, further in this connec-
tion. Chap. V. herein, relating to dis-
charge of surety.
"A surety is a favored debtor; his
rights are zealously guarded, both
at law and in equity, and the slight-
est fraud on the part of the creditor,
touching the contract, annuls it."
Magee v. Manhattan Life Ins. Co., 92
U. S. 93, 23 L. Ed. 699, per Mr. Jus-
tice Swayne, quoted in Putney v.
Schmidt (N. M. 1911), 120 Pac. 720.
See, also, American Bonding Co. v.
Loeb, 47 Wash. 447, 448, 92 Pac. 282.
3. United States.— Miller v. Stew-
art, 9 Wheat. 680, 6 L. Ed. 189.
Maryland. — First Nat. Bank of
Baltimore v. Gerke, 68 Md. 449, 13
Atl. 358.
New Jersey. — Manufacturers' Nat.
Bank v. Dickerman, 41 N. J. L. 448.
Tennessee. — Mumford v. Railroad
Co., 2 Lea 393.
England.— Pybus v. Gibb, 6 El. &
B. 902.
See § 72 herein.
4. United States. — Streeper v. Vic-
tor S. Mach. Co., 112 U. S. 676, 5 S.
Ct. 327, 28 L. Ed. 852; Smith v.
United States, 2 Wall. 219, 17 L. Ed.
788; McKicken v. Webb, 6 How. 292,
12 L. Ed. 443; Brown v. United
States, 152 Fed. 984, 82 C. C. A. 318;
United States Fidelity & G. Co. v.
Board of Commissioners, 145 Fed.
144.
Alabama. — Bay Shore Lumber Co.
V. Donovan, 149 Ala. 232, 42 So. 1014.
Arkansas. — Miller v. Friedheim,
82 Ark. 592, 102 S. W. 372.
California. — Van Valkenburgh v.
Oldham, 12 Cal. App. 572, 108 Pac.
42; Bergevin v. Wood, 11 Cal. App.
643, 105 Pac. 935.
District of Columbia. — Moulton v.
Cornish, 33 App. D. C. 228; Catholic
University of America v. Morse, 32
App. D. C. 195.
Illinois. — Phoenix Manufacturing
Co. V, Bogardus, 231 111. 528, S3 N. E.
771 Scope of Sueety Contract. § 6T
And the scope of his liability is to be gathered from the whole
instrument in which the obligation is contained.^
§ 67. Construction of Contract — At Law. — The terms used
and the language employed in guaranties, letters of credit, and
284; McCartney v. Ridgway, 160 111. Martin v. Whites, 128 Mo. App. 117,
129, 43 N. E. 826; People v. Toomey, 106 S. W. 608; Shine v. Bank, 70 Mo!
122 111. 308, 13 N. E. 521; Mystic 524.
Works of the World v. United States Nebraska, — Griswold v. Hazels, 62
Fidelity & Guaranty Co., 152 111. App. Neb. 888, 87 N. W. 1047; Hopewell v.
223; McDonald v. Harris, 75 111. App. McGrew, 50 Neb. 789, 70 N. W. 397;
111- Lee V. Hastings, 13 Neb. 508, 14 N.
Indiana. — Parker Land & Im- W. 476.
provement Co. v. Ayers, 43 Ind. App. New York. — National Park Bank
512, 87 N. E. 1062; Citizens' St. Ry. v. Koehler, 204 N. Y. 174, 97 N. E.
Co. V. Albright, 14 Ind. App. 433, 42 468; Merchants' Nat. Bank v. Hall,
N. E. 238; Lafayette v. James, 92 83 N. Y. 338; McCluskey v. Crom-
Ind. 240. well, 11 N. Y. 593; Chicago Crayon
lOTva. — Webster Co. v. Hutchinson, Co. v. Slattery, 67 Misc. R. 148, 123
60 Iowa 721, 9 N. W. 901, 12 N. W. N. Y. Supp. 987.
534. Ohio.— McGovney v. State, 20 Ohio
Kansas.— Ryan v. Williams, 29 St. 93.
Kan. 487. PennsylTania.— Bessemer Coke Co.
Louisiana. — New Orleans Canal & v. Gleason, 223 Pa. 84, 72 Atl. 257;
Banking Co. V. Hagan, 1 La. Ann. 62. Whelen v. Boyd, 114 Pa. St. 228;
Maine. — Manufacturers' Bank v. Banschard Co. v. Fidelity & Casualty
Cole, 39 Me. 188. Co. of New York, 21 Pa. Super. Ct.
Maryland.— State v. Dayton, 101 370.
Md. 598, 61 Atl. 624; Howard County Texas. — Ryan v. Morton, 65 Tex.
Com'rs V. Hill. 88 Md. Ill, 41 Atl. 61. 258; May v. Chicago Crayon Co. (Civ.
Michigan. — Gunn v. Geary, 44 App. 1912), 147 S. W. 733; United
Mich. 615, 7 N. W. 235. States Fidelity & Guaranty Co. v.
Minnesota. — Tomlinson v. Simp- Jasper, 56 Tex. Civ. App. 236, 120
son, 33 Minn. 443, 23 N. W. 864. S. W. 1145.
Missouri.— Utter son v. Elmore, 154 Utah.— Smith v. Bowman, 32 Utah
Mo. App. 646, 136 S. W. 9; State ex 33, 88 Pac. 687.
rel. Zimmerman v. Shafer, 152 Mo. Virginia. — Burson v. Andes, 83 Va.
App. 538, 134 S. W. 671; Moore v. 445.
Title Guaranty & Trust Co. of Scran- West Virginia, — State v. Nutter, 44
ton, 151 Mo. App. 256, 131 S. W. 477; W. Va. 385, 30 S. E. 67.
Harris v. Taylor, 150 Mo. App. 291, England. — Bowmaker v. Moore, 7
129 S. W. 995; Eau Claire-St. Louis Price 223.
Lumber Co. v. Banks, 136 Mo. App. 5. Australian Joint Stock Bank v.
44, 117 S. W. 611; Reissans v. Whites, Bailey (1899), App. Cas. 396.
128 Mo. App. 135, 106 S. W. 603; See § 67 herein.
§ 67
Suretyship and Guaeanty.
7a.
other obligations of sureties, must have a reasonable interpreta-
tion, according to the intent of the parties, as disclosed by the in-
strument, read in the light of surrounding circumstances and pur-
pose for which it was made.' And the surety is liable to the
same extent as the principal, and such liability need not be fixed
by a judgment of court.^ And where the surety states the amount
for which he will be liable, that fixed the extent of his liability.*
The liability of a surety must be ascertained by reference, not to
the recital alone, but to the bond in its entirety.^
It is unquestionably the well settled rule of law that a surety
6. United States. — United States
Fidelity & Guaranty Co. v. Board of
Com'rs of Woodson, 145 Fed. 144, 76
C. C. A. 114.
Colorado.— Covey v. Schiesswohl,
50 Colo. App. 68, 114 Pac. 292.
Connecticut.— Lewis v. Dwight, 10
Conn. 95.
Illinois.— McDonald v. Harris, 75
111. App. 111.
Indiana. — Barker v. McClelland
(Ind. App. 1912), 98 N. E. 300.
jowa. — Van Buren County v.
American Surety Co., 137 Iowa 490,
115 N. W. 24.
Maryland.— First Nat. Bank of
Baltimore v. Gerke, 68 Md. 449, 13
Atl. 358.
Missouri.r— Board of Education of
City of St. Louis v. United States
Fidelity & Guaranty Co., 155 Mo.
App. 109, 134 S. W. 18.
Nebraska,— Griswold v. Hazels, 62
Neb. 888, 87 Neb. 1047.
Jifew York.— De Camp v. Bullard,
33 App. Div. 627, 53 N. Y. Supp. 1102.
Tirginia, — Kirscbbaum v. Blair, 98
Va. 35, 34 S. E. 895.
England.— Mason v. Pritchard, 12
East 227.
See, also, cases cited in following
notes.
" The clear intent of the parties is
not to be violated or ignored, but
such intent is to be gathered from
the language of the instrument fairly
read in the light of all the circum-
stances attending its making and the
apparent purpose it was intended to
serve." Van Buren County v. Ameri-
can Surety Co., 137 Iowa 490, 115 N.
W. 24.
A bond executed by a partner to
his co-partner to pay them certain
sums due from him to them is to be
construed according to the language
used in the instrument altogether and
from the circumstances and condi-
tions existing at the time of its exe-
cution, and in the absence of fraud
or mistake the rights of the con-
tracting parties will be determined by
the contract as it is actually written.
Barker v. McClelland (Ind. App.
1912), 98 N. E. 300.
7. Fayette Title & Trust Co. v.
Maryland P. & W. V. T. & T. Co.
(U. S. C. C), 180 Fed. 928; Kroncke
V. Madsen, 56 Neb. 609, 77 N. E. 202.
8. Bullowa v. Orgo, 57 N. J. Eq.
428, 41 Atl. 494.
9. Wilson v. Whitmore, 92 Hun (N.
Y.) 466, 36 N. Y. Supp. 550, affirmed
Wilson V. Webber, 157 N. Y. 693, 51
N. E. 1094.
See Moulton v. Cornish, 33 App.
D. C. 228.
79
Scope of Surety Conteact.
§ 6T
is entitled to a somewhat rigid construction of his contract; but
before this rule is applied, his contract is subject to the same
construction as any other contract, in order to ascertain and give
effect to the intent of the parties, and it is not until this is as-
certained that its language is to be regarded as strictissimi juris}''
The rule that the contract of suretyship is strictissimi juris is
not a rule of construction, but a rule which governs the applica-
tion of the contract, after its meaning has been ascertained. In
ascertaining its meaning the contract of a surety is subject to the
same tests as is every other contract. It is to receive a construc-
tion which will give force to the obligation of each of the parties
at the moment the contract takes effect.^^ When the meaning of
the language has been thus ascertained, the responsibility of the
surety is not to be extended or enlarged by implication or con-
struction, but is strictissimi juris}^
10. United States. — United States
Fidelity & Guaranty Co. v. Board of
Commissioners of Woodson County,
145 Fed. 144, 76 C. C. A. 114.
California. — Sather Banking Co. v.
Briggs Co., 138 Cal. 724, 72 Pac.
352.
Colorado. — Covey v. Schiesswohl,
50 Colo. 68, 114 Pac. 292.
District of Columbia. — United
States V. Maloney, 4 App. D. C. 505.
Illinois. — Ramsay's Estate v. Peo-
ple, 97 111. App. 203, affirmed 197 111.
572, 64 N. E. 549; Shrefler v. Nadel-
hoffer, 133 111. 536, 25 N. E. 630;
Ewen V. Wilbor, 90 111. App. 132, af-
firmed 208 111. 492, 70 N. E. 575.
Indiana. — Weir Plow Co. v. Walms-
ley, 110 Ind. 242, 11 N. E. 232.
Maryland. — Aetna Indemnity Co.
V. Waters, 110 Md. 673, 73 Atl. 712.
Michigan. — Commissioner of Bank-
ing V. Chelsea Savings Bank, 161
Mich. 691, 125 N. W. 424, aff'd on re-
hearing 161 Mich. 704, 127 N. W.
351; Locke v. McVean, 33 Mich. 473.
Missouri. — Calhoun v. Gray, 150
Mo. App. 591, 131 S. W. 478; Fair-
bank Co. V. American Bonding &
Trust Co., 97 Mo. App. 205, 70 S. W.
1096.
Nebraska, — Griswold v. Hazel, 62
Neb. 888, 87 N. W. 1047.
New York.— People v. Backus, 117
N. Y. 196, 22 N. E. 759; Belloni v.
Freeborn, 63 N. Y. 383; Gamble v.
Cuneo, 21 App. Div. 413, 47 N. Y.
Supp. 548, affirmed 162 N. Y. 634,
57 N. E. 1110.
North Dakota. — Northern Light
Lodge V. Kennedy, 7 N. D. 146, 73 N.
W. 524.
Texas. — State v. Evans, 32 Tex.
200.
Utah. — Coughran v. Bigelow, 9
Utah 260, 34 Pac. 51.
Virginia,— Kirschbaum v. Blair, 98
Va. 35, 34 S. E. 895.
The test of liability is the intent
of the parties as indicated by their
agreement. Citizens' Nat. Bank v.
Burch, 145 N. C. 316, 59 S. E. 71.
11. Hurlburt v. Kephart, 50 Colo.
358, 115 Pac. 521, citing Ulster
County Savings Institution v. Young,
161 N. Y. 23, 55 N. E. 483.
12. United States.— United States
Fidelity & Guaranty Co. v. Board of
s ^^
Suretyship and Guaranty.
80
But while a surety is not liable beyond the strict terms of his
contract which may not be extended by implication or construc-
tion yet, on the other hand, it should not be reduced or destroyed
thereby, but should be given a rational construction which, while
Com'rs of Woodson County, 145
Fed. 144, 76 C. C. A. 114.
Arkansas. — Miller v. Friedheim, 82
Ark. 592, 102 S. W. 372.
California. — Sather Banking Co. v.
Briggs Co., 138 Cal. 724, 72 Pac. 352.
Illinois. — Phoenix Manufacturing
Co. V. Bogardus, 231 111. 528, 83 N. E.
284; Pfirshing v. Peterson, 98 111.
App. 70.
Indiana. — Barker v. McClelland
(Ind. App. 1912), 98 N. E. 300; Salena
V. McClintock, 16 Ind. App. 656, 46
N. E. 39, 59 Am. St. Rep. 330.
Kentucky. — Graziani v. Common-
wealth, 30 Ky. Law Rep. 119, 97 S.
W. 409.
Michigan. — Bishop v. Freeman, 42
Mich. 533, 4 N. W. 290.
Missouri. — State ex rel. Bell v.
Yates (Mo. 1910), 132 S. W. 672;
Moore v. Title Guaranty & Trust Co.,
151 Mo. App. 256, 131 S. W. 477; Eau
Claire-St. Louis Lumber Co. v.
Banks, 136 Mo. App. 44, 117 S. W.
611; Gray v. Davis, 89 Mo. App. 450.
Nebraska. — Hopewell v. McGrew,
50 Neb. 789, 70 N. W. 397.
New York. — People v. Backus, 117
N. Y. 196, 22 N. E. 759; Peabody v.
Richard Realty Co., 69 Misc. R. 582,
125 N. Y. Supp. 349.
Ohio. — American Surety Co. v.
Boyle, 65 Ohio St. 486, 63 N. E. 73.
Virginia. — Kirschbaum v. Blair, 98
Va. 35, 34 S. E. 895.
Washington. — Title Guaranty &
Trust Co. V. Murphy, 52 Wash. 190,
100 Pac. 315.
" The law is well settled that the
undertaking of a surety is to be
strictly construed and his liability
not to be extended by construction.
The liability of guarantors is gov-
erned by the same rules." Phoenix
Manufacturing Co. v. Bogardus, 231
111. 528, 83 N. E. 284.
Bule of strictissimi juris relaxed
in case of paid sureties.
United States. — United States v.
United States Fidelity & Guaranty
Co. (U. S. C. C), 178 Fed. 721.
Connecticut. — City of New Haven
V. Eastern Paving Brick Co., 78
Conn. 789, 63 Atl. 517.
Missouri. — Kansas City v. David-
son, 154 Mo. App. 269, 133 S. W. 365;
Moore v. Title Guaranty & Trust Co.
of Scranton, 151 Mo. App. 256, 131 S.
W. 477; City of Richmond v. Byrne,
146 Mo. App. 481, 125 S. W. 810.
New York. — Peabody v. Richard
Realty Co., 69 Misc. R. (N. Y.) 582,
125 N. Y. Supp. 349.
South Carolina. — Walker v. Holtz-
claw, 57 S. C. 459, 35 S. E. 754.
Washington.— Title Guaranty &
Trust Co. v. Murphy, 52 Wash. 190,
100 Pac. 315.
See, also, §§ 438 et seq. herein, aa
to rule in case of surety companies.
Ambiguities. The general rule is
said to be that uncertainties and am-
biguities should be resolved in favor
of the surety. American Surety Co.
of New York v. Koen, 49 Tex. Civ.
App. 98, 107 S. W. 938.
In a case in Missouri, however, it
is decided that where a contract is
susceptible of two constructions, the
one most favorable to the secured
party should be adopted, if consist-
ent with the object for which the
bond is given. Chicago Crayon Co,
81 Scope of Surety Conteact. § 67a
carefully restricting his liability to that which he agreed to un-
dertake does not fail to hold him to that liability, which, by the
plain terms of his agreement, he has promised to assume/^
The surety is bound by the contract which he makes, and not
by some contract which he did not make, even though the latter
may be more favorable to him than the former." Thus, where
the debt is paid in installments, if any of the installments is paid
in advance, it is held, the surety is released/^ And new terms
cannot be added to the contract by reading the instrument in con-
nection with a statute.^® He has the right to stand on the very
terms of the contract." And where the condition of the bond or
contract is plainly set forth it cannot be controlled by any recital
not plainly inconsistent therewith/*
§ 67a. Where Bond Makes a Contract a Part Thereof. —
Where a bond refers to a contract and makes it a part thereof,
both are to be construed as one instrument. ^^ So where a contrac-
tor's bond is executed with express reference to the contract,
plans and specifications it is decided all three instruments must
be construed together, and the obligations of the bond must be
T McNamara, 136 Mo. App. 460, 118 16. General Steam Nav. Co. v.
S. W. 118. Roltz, 6 C. B. (N. S.) 550; Greenville
And where a bond, is prepared by City Council v. Ormand, 51 S. C.
the surety the rule prevails that a 121, 28 S. E. 147; Welch v. Hub-
construction moro favorable to the schmitt Building & Woodworking
obligee should be given in case of Co., 61 N. J. L. 57, 38 Atl. 824.
ambiguities. Beech Grove Improve- 17. Warden v. Ryan, 37 Mo. App.
ment Co. v. Title Guaranty & Surety 466; Judah v. Zimmerman, 22 Ind.
Co. (Ind. App. 1912), 98 N. E. 373. 388; Johnson v. May, 76 Ind. 293;
See, also. Small Co. v. Claxton, 1 Mayhew v. Boyd, 5 Md. 102; Ryan v.
Ga. App. 83, 57 S. E. 977. Trustees, 14 111. 20.
13. American Bonding Co. v. 18. Australian Joint Stock Bank v.
Pueblo Inv. Co., 150 Fed. 17, 80 C. C. Bailey (1899), App. Cas. 396.
A. 97, per Sanborn, J. 19. Searles v. City of Flora, 225 111.
14. Jackson v. Patrick, 10 S. C. 167, 80 N. E. 98, rev'g 127 111. App.
197; General Steam Nav. Co. v. Roltz, 165; Zimmerman v. Chelsea Savings
€ C. B. (N. S.) 550; Calvert v. Dock Bank, 121 Mich. 691, 125 N. W. 424,
Co., 2 Keen 638; City Council of affirmed on rehearing 161 Mich. 704,
Greenville v. Ormond, 51 S. C. 121, 127 N. W. 351.
28 S. E. 147. As to building contracts, see § 112
15. Howard County Com'rs v. Hill, herein.
S8 Md. Ill, 41 Atl. 61.
6
§ 67a Surj':tyship and Guaeanty. 82"
determined in connection with the terms and conditions of the
contract, plans and specifications.^"
The conditions of a bond being for the performance of the
agreements set forth in a building contract, and the two instru-
ments having been executed at the same time, and referring each
to the other, the sureties upon such bond are bound with the con-
tractor as to the agreements and undertakings set forth in the
contract, though such contract was not signed by the sureties.^'
So when a surety company, by the express terms of its bond,
made a contract with a city as part of the bond, it was decided
that it could not be heard to say that the city had no power to
enter into the contract or did not make the contract in the re-
quired manner.^^ And where a bond recites that another bond
is annexed thereto and made a part thereof if the surety fails to
read what is in such bonds before signing, he cannot claim that
he was mistaken as to their terms.^^ And where two of several
notes contain a clause that they, with others, are secured by a
mortgage given by the mortgagor to the creditor, and are signed
by a third party as surety for the debtor, such surety will be
held, in the absence of circumstances showing the contrary, to
have notice of the provisions of the mortgage respecting the ap-
plication of payments, and to have contracted with reference
thereto.^*
rt is not essential that a bond given to secure the performance
of a contract mentioned therein should recite a copy of the con-
tract or otherwise identify it, the identity of the contract broken
with the one mentioned in the bond being the proper subject of
proof at the trial.^^
20. McArthur v. McGilvray, 1 Ga. 21. Bell v. Campbell (Tex. Civ.
App. 643, 57 S. E. 1058. ^App. 1912), 143 S. W. 953.
As to bnilding and contractors' 22. City of Madison v. American
bonds, and the contract being con- Sanitary Engineering Co., 118 Wis.
strued together, see, also, Beckley v. 480, 95 N. W. 1097.
Miller, 96 Ark. 379, 131 S. W. 876; 23. Stiewell v. American Surety
Harris v. Taylor, 150 Mo. App. 291, Co., 70 Ark. 512, 68 S. W. 1021.
129 S. W. 995; Higgins v. Drucker, 24. Advance Thresher Co. v.
22 Ohio Cir. Ct. R. 112, 12 Ohio C. D. Hogan, 74 Ohio St. 307, 78 N. E. 436.
220. 25. People v. Carroll, 151 Mich.
As to building contracts, see § 112 233, 115 N. W. 42.
herein.
83 Scope of Surety Conteact. §§ 67b, 68, 69
§ 67b. Statutory Bonds — Estoppel. — Where a bond follows
the statute it has been decided that the fact that it does not fol-
low the letter of the act creating the fund intended to be secured
by it is immaterial, where the statute provides that the bond is
" binding on the parties thereto according to its terms." ^^
Sureties also are presumed to know the form and terms of
official bonds required by statute for they are presumed to know
the law. Where such a bond is signed and its execution was not
induced by fraud and the sureties if they read it know the period
for which it binds them, if they fail to read it that is their fault
and as against others who have a right to rely upon it and in
reliance upon it disadvantageously change their position, the sure-
ties are estopped from denying that they knew the terms of the
bond."
§ 68. Construction of Contract — In Equity. — Courts of equity,
as well as courts of law, interpret contracts of sureties with con-
siderable strictness in favor of the sureties.'^ But if the liability
cannot be enforced against the surety at law by reason of any
fraud, accident or mistake, equity will enforce the contract ac-
cording to the obvious intention of the parties.^^
So where the contract does not express the intention of the par-
ties, to the injury of the obligee, and that is clearly made to ap-
pear, equity will reform the instrument as well against surety as
principal.^"
§ 69. Liability for Past Defaults of Principal. — Sureties are
not responsible for prior defaults of their principal, unless they
80 contract.^^ So a publisher's bond executed under a statute
providing that such bond must be executed before any legal adop-
tion can be made of school books embraced in the list covered by
26. United States Fidelity & Guar- (Md.) 306; Berg v. Radcliff, 6 Johns,
anty Co. v. Commonwealtli, 31 Ky. Ch. (N. Y.) 302.
Law Rep. 1179, 104 S. W. 1029. 30. Olmsted v. Olmsted, 38 Conn.
27. Empire State Surety Co. v. 309; United States v. Cushman, 2
Carroll County (U. S. C. C. A. 1912), Sumner (U. S. C. C.) 434.
194 Fed. 593. 81. Arkansas.— United States Fi-
28. Miller v. Stewart, 9 Wheat. (U. delity & Guaranty Co. v, Fultz, 76
S.) 680, 6 L. Ed. 189. Ark. 410, 89 S. W. 93.
29. Brooks v. Brooks, 12 Gill & J.
(39
SUEETYSHIP AKD GUABANTY.
84:
the bond provides against violations of its conditions as to the
sale of books after their adoption and which do not occur before th«
execution of the bond and will not be extended by implication
or inference to cover liability for breach of contract as to books
adopted before the bond was executed.'' But the guaranty or
suretyship may cover a note given for a pre-existing debt. Thus,
where a contract of guaranty provides for the payment of all notes
discounted by a bank '' from the date " thereof, a note discounted
by the bank after such date is covered by the guaranty, although
it is given to cancel a note given to the bank before the contract
was made.^^ And so sureties are liable for money paid their prin-
cipal, though he misapplies it to pay prior delinquencies covered
by another bond with other sureties.'*
And a contract of suretyship may act retrospectively where the
parties so agree, because then it is the contract of the surety.^^
Colorado.— Rockford Ins. Co. v.
Rogers, 15 Colo. App. 23, 60 Pac. 956.
Illinois.— Bartlett v. Wheeler, 195
111. 445, 63 N. E. 169, aff'g 96 111.
App. 342; Mystic Workers of the
World V. United States Fidelity &
Guaranty Co., 152 111. App. 223; Stern
V. People, 96 111. 475; Abrams v.
Pomeroy, 13 111. 133.
Indiana.— Rogers v. State, 99 Ind.
218.
Iowa.— Webster Co. v. Hutchinson,
60 Iowa 721, 9 N. W. 901, 12 N. W.
534.
Kansas.- McMullen v. Wingfield
Building & Loan Ass'n, 64 Kan. 298,
67 Pac. 892, 91 Am. St. Rep. 236, 56
L. R. A. 924.
Massachusetts. — Rochester v. Ran-
dall, IOF; Mass. 295.
Michigan.— Detroit v. Wehr, 29
Mich. 24.
Minnesota.— County of Pine v. Wil-
lard, 39 Minn. 125, 39 N. W. 71.
Missouri. — State v. Jones, 89 Mo.
470.
Nebraska.— Van Sickle v. Buffalo
Co., 13 Neb. 103, 13 N. W. 19.
New York.— Kellum v. Clark, 97 N.
Y. 390.
PennsjiTania. — American Dist.
Tel. Co. V. Lennig, 139 Pa. St. 594,
21 Atl. 162.
Texas. — Newcomer v. State, 77
Tex. 286, 13 S. W. 1040.
Virg^inia. — Crown v. Common-
wealth, 84 Va. 282, 4 S. E. 721.
Wisconsin. — Wussow v. Hase, 10$
Wis. 382, 84 N. W. 433.
The presumption is that a bond
was not intended to cover losses oc-
curring prior to its execution, though
such presumption may be overcome.
Tarentune Realty Co. v. McClure,
230 Pa. 266, 79 Atl. 551.
32. Graziani v. Commonwealth, 30
Ky. Law Rep. 119, 97 S. W. 409.
33. Peoria Savings, Loan & Trust
Co. V. Elder, 165 111. 55.
34. Gwynne v. Burnell, 7 CI. & P.
572; Inhabitants v. Bell, 9 Met. 490;
County of Pine v. Willard, 39 Minn.
125, 39 N. W. 71.
35. Abrams v. Pomeroy, 13 111. 133;
McMullen v. Wingfield Building &
Loan Ass'n, 64 Kan. 298, 67 Pac. 892.
S5
Scope of Surety Contract,
§ 70
§ 70. Liability Limited to a Fixed Time. — A surety is not to
be held beyond the precise term of his contract. So where the
principal is in office for a definite period, the surety is only
liable for his faithful performance of his duties during that
period. If the bond is silent as to the length of the term, but
the statute under which the bond is given fixes the term, the
statute in that regard will be regarded as the period of the con-
tract with the surety. In such case the sureties do not contract
for their principal's discharge of obligations which he might as-
sume or duties which might be imposed upon him after he leaves
office.^'
Where the terms of a bond clearly
show that it was intended to be
retrospective as well as prospective,
Bureties may be held liable for de-
faults occurring before the execution
of such bond. McMullen v. Wing-
field Building & Loan Ass'n, 64 Kan.
298, 67 Pac. 892, 91 Am. St. Rep. 236.
56 L. R. A. 924.
36. United States v. Nicoll, 12
Wheat. (U. S.) 505, 6 L. Ed. 709;
Bryan v. United States, 1 Black (U.
S.) 140, 17 L. Ed. 135; People v.
Toomey, 122 111. 308, 13 N. E. 521;
Ulster County Sav. Bank v. Ostran-
der, 163 N. Y. 430, 57 N. E. 627;
People V. Pennock, 60 N. Y. 421; Lord
Arlington v. Merrick, 3 Saund. 403.
It is familiar law that in cases
■where the term of office to which the
principal is elected or appointed is
fixed by law the liability of his
bondsmen will be limited to the cur-
rent term, unless they expressly
agree to continue liable after its ex-
piration. It is equally well settled
that where the bond recites the
length of term for which the officer
Is elected or appointed, the liability
of the bondsmen is presumed to bo
limited to that term in the absence
of an express agreement to be re-
sponsible for a longer term. Wester-
velt v. Mohenstecker, 76 Fed. 118, 22
C. C. A. 93, 34 L. R. A. 477, per San-
born, J.
Provision that responsibility shall
cease on issuance of a new bond. A
provision in a bond " That the com-
pany, upon the execution of this
bond, shall not thereafter be respon-
sible to the employer under any
bond previously issued to the em-
ployer on behalf of said employee,
and upon the issuance of any bond
subsequent hereto upon said em-
ployee in favor of said employer, all
responsibility hereunder shall cease
and determine, it being mutually un-
derstood that it is the intention of
this provision that but one (the last)
bond shall be in force at one time,
unless otherwise stipulated between
the employer and the company," ig
to be construed as meaning that it
was the intention to terminate all
responsibility upon a former bond
upon the issuance of a new one, so
that there should be but one bond in
force at the same time. Such pro-
vision will not be construed as
meaning that it was the intent to
cancel any liability already incurred
while the prior bond was in force.
The rule of liability would then be
the same, whether the first bond wag
terminated by the giving of the sec-
ond bond or for any other reason.
§ 70
SuilETYSIIIP AND GUARANTY.
86
If the term of office is prescribed and the bond is conditioned
without express limitation as to period, for the faithful perform-
ance of the principal's duties, and nothing else appears to give
it a wider effect, it will be construed as intending to cover acts
oecurring only within the prescribed term."
The general rule as touching the extent of the obligation of
the surety on offi<;ial bonds is, that the obligation by intendment
will bo confined to the official term about the commencement or
current at the time such bond comes into existence, and when the
office is annual the parties to the bond are presumed, by law, to
bind themselves accordingly, if there are no words in the bond
clearly extending it to a future term.^^
But when the bond provides that the officer is to be chosen an-
nually and holds his office until another is chosen and qualified
The provision is that all responsi-
bility, and not all liability, should
cease upon the issuance of the sec-
ond bond. Hawley v. United States
Fidelity & Guaranty Co., 100 App.
Div. (N. Y.) 12, 90 N. T. Supp. 893,
affirmed 184 N. Y. 549, 76 N. E. 1096.
Where the bond of an officer re-
«cited that he had been elected for
(the year beginning January 1, 1885,
sand ending December 31, 1885, and
Md accepted the office, and it was
conditioned that if he should faith-
fully perform the duties of his office
" during said year " the bond should
be void and of no effect, but other-
wise should remain in full force and
effect, and the officer was not elected
until some time after the first of the
year, but had held successive terms
and been continually in office for
several years before and after 1885,
it was held that the surety made
himself responsible for the defaults
of the entire year of 1885. McMullen
V. Wingfield Building & Loan Ass'n,
64 Kan. 298, 67 Pac. 892, 91 Am. St.
Rep. 236. 56 L. R. A. 924.
37. North St. Louis Building &
Loan Ass'n v. Fidelity & Deposit Co.
of Maryland, 169 Mo. 507, 69 S. W.
1044.
38. Connecticut. — Welch v. Sey-
mour, 28 Conn. 387.
Delaware. — May v Horn, 2 Harr.
190.
District of Columbia. — United
States V. West, 8 App. D. C. 59.
Iowa. — Ida County Savings Bank
V. Seidensticker, 128 Iowa 54, 102 N..
W. 821, 111 Am. St. Rep. 189.
Massachusetts. — Chelmsford Co. v.
Demarest, 7 Gray 1.
Missouri — North St. Louis Build-
ing & Loan Ass'n v. Fidelity & De-
posit Co. of Maryland, 169 Mo. 507,
69 S. W. 1044.
New Hampsliire. — Dover v. Twom-
bly, 42 N. H. 59.
New Jersey.— Mayor v. Crowell, 40
N. J. L. 207.
NortL Carolina. — Blades v. Dewey,
136 N. C. 176, 48 S. E. 627, 103 Am.
St. Rep. 924.
Vermont.— First National Bank v.
Brigg's Assignees, 69 Vt. 12, 37 AtL
231, 37 L. R. A. 845, 60 Am. St. Rep.
922.
87 Scope of Surety Contkact, § T1
in his stead, the sureties are bound for the year for whieh he was
chosen, and for such further time as is reasonably sufficient for
the election and qualification of his successor, but not longer.^
When a bond is conditioned for the faithful performance of the
principal's duties " during his continuance in office," without
specifying the length of time, the surety is liable for one year
only, the term of the principal being limited to that time.*** And
in general a surety cannot be held on an official bond for a longer
period than that limited by his undertaking."
§ 71. Time Limited to a Subsequent Period. — To enlarge the
responsibility of sureties in a bond or in any other contract, there
must be words in the condition extending the time beyond the
fixed term of office. It is not enough that the recitals should be
^' so long as he continue in office," or '^ until a successor is ap-
pointed." If the office is annual or limited the surety will not
be prejudiced by a failure to bind according to the requirements
of the law or rule which regulates such appointment. His inten-
tion to assume a further and continued liability must be found
89. Chelmsford Co. v. Demarest, 7 41. United States. — Westervelt v.
Gray (Mass.) 1. Mohrensticker, 76 Fed. 118, 22 C. C.
40. Kitou V. Julian, 4 El. & B. 854. A. 93, 34 L. R. A. 477.
During his continuance and so Illinois. — Roper v. Sangamon
long as he shall hold office. An of- Lodge, 91 111. 518.
fleer's bond conditioned for the Indiana. — Urmston v. State, 73 Ind.
faithful performance by the principal 175; Mullikin v. State, 7 Blackf. 77.
of the duties of his office " during Iowa. — Myers v. Farmer, 52 Iowa
his continuance in, and so long as he 20, 2 N. W. 572.
shall hold said office by election, re- Kansas. — Riddel v. School Dist., 15
election or otherwise," and for his Kan. 168.
delivering up all funds in his posses- Maine. — Norridgewock v. Hale, 80
slon " at the expiration of his said Me. 362, 14 Atl. 94^..
office, or whenever he may cease to Minnesota. — Scott Co. v. Ring, 29
hold the same," is a continuing bond, Minn. 398, 13 N. W. 181.
and is valid and enforceable accord- MissourL — Savings Bank v. Hunt,
ing to its terms, though the lodge 72 Mo. 597.
by-laws provide for annual election New York. — Kellum v. Clark, 97 N.
to the office in question. The bond, Y. 390.
however, ceases to be in force if Pennsylvania. — Black v. Oblender,
there is an interruption in the prin- 135 Pa. St. 526, 19 Atl. 945.
cipal's holding the office. Coombs Texas. — Barry v. Screwmen's
V. Harford, 99 Me. 426, 59 Atl. 529. Ass'u, 67 Tex. 250, 3 S. W. 261.
§ 72
Suretyship and Guaranty.
88
in the words of the bond. It is not a matter of inference, but of
exposition.'^
If the bond is drawn so as to cover subsequent periods, the
sureties are bound.^^ Thus, a surety's liability is extended by
the following language: ''During the time he shall continue in
the said office, whether of the present term for which he has been
duly elected, or of any succeeding term to or for which he may
be elected.^'*
And a bank cashier's bond conditioned for the faithful dis-
charge of his duties " for and during all the time he shall hold
the said office of cashier," was held to bind the sureties thereon
for all of such period^ though it appeared that the cashier was
elected or appointed annually.^^
A bond for the fidelity of one who holds his office during the
pleasure of the appointing power covers all delinquencies until he
resigns or is removed.*®
§ 72. Employment or Condition Changed by Employer or by
the Legislature. — If by act of the parties or by act of the legis-
lature, the nature of the office is so changed that the duties are
materially altered so as to affect the liability of the sureties, their
42. Angero v. Keen, 1 Mees. & W.
390; Oswald v. Berwick, 1 El. & B.
295, 3 EI. & B. 653, 5 H. L. Cas. 856.
43. Iowa. — Dist. Tp. of Fox v. Mc-
Cord, 54 Iowa 346, 6 N. W. 536.
Massachusetts. — Dedham Bank v.
Chickering, 3 Pick. 335.
MissourL — Lang v. Seay, 72 Mo.
648.
Pennsylvania. — Daley v. Common-
wealth, 75 Pa. St. 331.
Virginia. — Jacobs v. Hill, 2 Leigh
393.
Wisconsin. — Board of Supervisors
of Milwaukee Co. v. Pabst, 70 Wis.
352, 35 N. W. 337.
England. — Mayor v. Wright, 16 Q.
B. 63.
44. People's Bldg. Ass'n v. Wroth,
43 N. J. L. 70.
4&. Westervelt v. Mohrenstecker,
76 Fed. 118, 22 C. C A. 93, 34 L. R. A.
477.
See Ulster County Savings Inst. v.
Young, 161 N. Y. 23, 55 N. E. 481, af-
firming 15 App. Div. 181, 44 N. Y.
Supp. 493, wherein a similar pro-
vision in a bond of an assistant
treasurer is so construed.
Compare Ulster County Savings
Inst. V. Ostrander, 163 N. Y. 430, 57
N. E. 627, affirming 15 App. Div. 173,
44 N. Y. Supp. 181, where the bond
of a bank treasurer was conditioned
" during his continuance in office."
In this case the preceding cas©
which we have cited is referred to
and distinguished.
46. Westervelt v. Mohrenstecker,
76 Fed. 118, 22 C. C. A. 93, 34 L. R.
A. 477.
86l Scope of Surety Contract. § 72
responsibility is ended. If the nature and the functions of the
office or employment are changed, then it is not the same office
within the meaning of the bond.^^ Hence, if the nature of the
employment is so changed by the act of the employer that the
risk of the surety is materially altered, the surety's liability
ceases.'** So the increase of the principal's salary on re-employ-
ment relieves the surety for all subsequent defaults.^^ And so,
where a bank increases its capital stock and it is paid in, then
the surety on the bond of the cas'hier is no longer liable for subse-
quent defaults of his principal.^*^ Likewise the sureties on a
cashier's bond of an unincorporated bank are released from lia-
47. Alabama. — Singer Mfg. Co. v. A surety on a bond of a book-
Beyette, 74 Ark. 600, 86 S. W. 673, keeper and collector is released
109 Am. St. Rep. 104. where the employee's duties are in-
Kansas. — Singer Mfg. Co. v. Arm- creased so that he is required to per-
strong, 7 Kan. App. 314, 54 Pac. 571. form the duties of cashier, and as
Massachusetts. — Boston Hat Man- such has control of all the cash of
ufactory v. Messinger, 2 Pick, the business. Kellogg v. Scott, 58
(Mass.) 223. N. J. Eg. 344, 44 Atl. 190, affirmed 62
Minnesota.— Fidelity Mutual Life N. J. Eq. 811, 48 Atl. 1117.
Ass'n V. Dewey, 83 Minn. 389, 86 N. Sureties on administrator's bond
W. 423, 5t L. R. A. 945. released by act of legislature. State
Missouri— State v. Holman, 96 Mo. v. Holman, 96 Mo. App. 193, 68 S. W.
App. 193. 68 S. W. 965. 965.
New Jersey. — Kellogg v. Scott, 58 Sureties on appeal bond released
N. J. Eq. 344, 44 Atl. 190, affirmed by act of legislature. Schuster v.
Kellogg V. American Ins. Co., 62 N. Weissen, 114 Mo. 158.
J. Eq. 811, 48 Atl. 1117; Manufac- Bond may by its terms permit of
turers' Bank v. Dickerson, 41 N. J. L. such change. Singer Mfg. Co. v.
448. Reynolds, 168 Mass. 588, 47 N. E. 438,
New York. — Tradesmen's Nat. 60 Am. St. Rep. 417; Travelers Ins.
Bank v. National Surety Co., 54 App. Co. v. Stiles, 82 App. Div. (N. Y.)
Div. 631, 66 N. Y. Supp. 1146, affirmed 441, 81 N. Y. Supp. 664.
169 N. Y. 563, 62 N. E. 670. 48. Miller v. Stewart, 9 Wheat. (U.
Tennessee.— Mumford v. Memphis S.) 680, 6 L. Ed. 189; First Nat.
& Charleston R. R. Co., 2 Lea 398. Bank of Baltimore v. Gerke, 68 Md.
England.— Pybus v. Gibb, 6 El. & 449, 13 Atl. 355.
Bl. 902. See cases cited in preceding note.
Waiver by employee of duty to 49. Strawbridge v. Railroad Co., 14
furnish report at stated intervals, Md. 360.
held to release surety. Singer Mfg. 60. Grocers' Bank v. Kingman, 16
Co. V. Boyette, 74 Ark. 600, 86 S. W. Gray 473. Compare Bank v. Wollas-
673, 109 Am. St. Rep. 104; Fidelity ton, 3 Harr. (Del.) 90; Morris Canal
Mutual Life Ass'n V. Dewey, 83 Minn. Co. v. Van Vorst, 21 N. J. L. 100;
389, 80 N. W. 423, 54 L. R. A. 945. Lionberger v. Kieger, 88 Mo. 160.
§ 73 Suretyship and Guaeanty. 90
bility if the company becomes incorporated.^^ And the appoint-
ment of a bank cashier for an indefinite term and at the pleasure
of the directors is terminated by his new appointment for a defi-
nite period although there was no interruption in the service;
and the sureties on his official bond under the original appoint-
ment are not liable for his defalcations occurring during the new
term, in the absence of language in the bond itself giving it
effect beyond such change in the term of appointments.^^
It has been held that extending the charter of a bank by the
legislature ends the surety's liability on the bo.nd of the cashier,
though his duties are identical with those before extension.^^ But
such doctrine is doubtful,^* and cannot be applied where the stat-
ute provided for such extension or other change when the surety
sigTied.^^
If the nature of the principal's duty is unchanged, and no new
or different duty is imposed upon him by the alteration in the
regulation of his employer, the surety is still liable. Thus, a
railroad company may raise a station to one of first-class, and
this will not release the surety on the station agent's bond, where
the agent has the identical duties as before the change of the sta-
tion's re-classification.^^
§ 73. Sureties in Legal Proceedings — Order of Liability. — As
between different sets of sureties who undertake to secure the
same debt, although in different stages of legal proceedings, the
primary liability rests upon the latter set." Thus, a surety in
an injunction bond enjoining a judgment against the acceptor of
a bill of exchange, has no right to call upon the indorsers of the
bill for indemnity for such payment; they are not his principals
51. Besinger v. Wren, 100 Pa. St. 22 N. E. 759; National Bank v.
500. Phelps, 97 N. Y. 44.
52. Wapello State Savings Bank v. 56. Strawbridge v. Railroad Co., 14
Colton, 133 Iowa 147, 110 N. W. Md. 360.
450. 57. Brandenburg v. Flynn, 12 B.
53. Thompson v. Young, 2 Ohio Mon. (Ky.) 397; Culliford v. Walser,
334; Union Bank v. Ridgely, 1 H. & 158 N. Y. 65, 52 N. E. 648; Hinckley
G. 324; Bank v. Barrington, 2 Pa. v. Kreitz, 58 N. Y. 583; Burns v.
27; Brown v. Lattimore, 17 Cal. 93. Bank, 1 Pa. St. 395; McCormick v.
54. Exeter Bank v. Rogers, 7 N. H. Irwin, 35 Pa. St. Ill; Pott v. Nathan,
21. 1 W. & S. (Pa.) 155; Parsons v. Brid-
55. People v. Backus, 117 N. Y. 196, dock, 2 Vern. 608.
91
Scope of Surety Conte^vct.
§ u
or co-sureties, nor has he any right to be substituted to the right
which the payee once had against indorsers for payment of the
bill.''
Bail are sureties and entitled to the benefit of the general prin-
ciple applicable to the relation which they bear toward their prin-
cipal and his creditor as well as toward other sets of sureties.'^
In other words, bail have the same rights as other sureties con-
sistent with their duties.
§ 74. Only Liable for Penalty of the Bond. — The general prin-
ciple is that in suits on penal bonds with collateral limitations,
the surety is liable only for the penalty.®^
The undertaking of the surety is essentially a pledge to make
good the misfeasance or non-feasance of his principal to the
amount co-extensive with the penalty of the bond.®^ But the
58. Bohannon v. Combs, 12 B. Mon.
(Ky.) 563.
59. Culliford v. Walser, 158 N. Y.
65. 32 N. E. 648.
See § 213 et seq.
60. United States. — Farrar v.
United States, 5 Pet. 373, 8 L. Ed.
159; Loughlin v. American Surety
Co., 114 Fed. 627, 51 C. C. A. 247.
Connecticut. — City of New Haven
V. Eastern Paving Brick Co., 78 Conn.
689, 63 Atl. 517.
Georgia. — Westbrook v. Moore, 59
Ga. 204.
Indiana. — Greater v. DeWolf, 112
Ind. 1, 13 N. E. 111.
lOTva. — Getchell & Martin Lumber
& Mfg. Co. V. Peterson, 124 Iowa 599,
100 N. W. 1123; Stull v. Lee, 70 Iowa
31, 30 N. W. 6.
Louisiana. — Mercy v. Praeger, 34
La. Ann. 54.
Michigan. — Eraser v. Little, 13
Mich. 195.
Missouri. — North St. Louis Build-
ing & Lumber Ass'n v. Obert, 169 Mo.
507, 69 S. W. 1044; Showlles v. Free-
man, 81 Mo. 540.
New Jersey. — Turnson v. Cramer,
5 N. J. L. 574.
New York.— Wood v. Tish, 63 N.
Y. 245; Westcott v. Fidelity & De-
posit Co. of Maryland, 87 App. Div.
497, 84 N. Y. Supp. 371; Fairlie v.
Lawson, 5 Cow. 424; Clark v. Bush,
3 Cow. 151.
North Carolina. — Bernhardt v.
Dutton, 146 N. C. 206, 59 S. E. 651;
New Home Sewing Mach. Co. v.
Seago, 128 N. C. 158, 38 S. E. 805.
Pennsylvania.— Delo v. Banks, 101
Pa. St. 458; Commonwealth v. For-
ney, 3 Watts & G. 353.
A surety cannot, either through
favoritism or neglect, be allowed to
work out a result which would give
priority to some creditor or credi-
tors over others, and where he does
so he may be compelled to pay fur-
ther sums which may increase the
total paid over the penalty of the
bond. Commonwealth v. City Trust,
Safe Deposit & Surety Co., 224 Pa.
St. 223, 73 Atl. 425.
61. Leggett v. Humphrey, 21 How.
(U. S.) 66, 16 L. Ed. 50.
§ 75 SUKETYSHIP AND GuAEANTY. 92
surety is liable for the legal interest which has accrued from the
time of his liability, besides the genalty.^'
§ 75. Misappropriation of Funds. — Where the principal is
bound for the faithful performance of his duties, the contract
will fix the measure of the surety's liability; and he will not be
liable for defaults of his principal to perform any duty or obli-
gation arising out of a contract or otherwise not fairly within the
provision of the written contract or bond so given to secure. Thus,
sureties are not liable on a bond for any moneys advanced to
their principal to enable him to prosecute his business for the
obligee, when such obligation was not set out in the bond, though
they are liable for moneys received by the principal in his line
of duty.^^ So where a bond is given by an overseer of the poor,
in which the principal was to account for all sums of money which
came to his hands by virtue of his office, the sureties are not liable
for moneys which he borrows without authority and applies to
other purposes not within the scope of his business."
Nor where a bond is given for the fidelity of a firm as agents
can the sureties be held liable for funds misappropriated by a
member of the firm after it had been dissolved.*^
iSureties are not liable for funds of their principal which he
misappropriates, unless such moneys are designated by their con-
tract of suretyship.®®
62. Arkansas.— James v. State, 65 Div. (N. Y.) 195, 90 N. Y. Supp. 1029,
Ark. 415, 46 S. W. 937. affirmed 184 N. Y. 544. 76 N. E. 1093.
Connecticut. — City of New Haven Wisconsin. — Whereatt v. Ellis, 103
V. Eastern Pav. Brick Co., 78 Conn. Wis. 348, 79 N. W. 416.
689, 63 Atl. 517. 63. Burlington Ins. Co. v. Johnson,
Illinois.— Holmes v. Standard Oil 120 111. 622, 12 N. E. 205.
Co., 183 111. 70, 55 N. E. 647. 64. Leigh v. Taylor, 7 B. & C. 491.
Kansas. — McMullen v. Wingfield 65. Standard Oil Co. v. Arnestad,
Building & Loan Ass'n, 64 Kan. 298, 6 N. D. 255, 69 N. W. 197, 66 Am. St.
67 Pac. 892. Rep. 604, 34 L. R. A. 861.
Maine. — Wyman v. Robinson, 73 See § 84 herein, as to liability on
Me. 384. bonds for acts of a partnership.
Missonri. — McDonald v. Loewen 66. California, — Humboldt Sav. &
(Mo. App. 1910), 130 S. W. 52. Loan Society v. Wennerhold, 81 Cal.
New York. — Degnon-McLean 528, 22 Pac. 920.
Const. Co. V. City Trust, Safe Deposit Georgia. — Smith v. Stephen, 53 Ga..
& Surety Co. of Philadelphia, 99 App. 300.
93
Scope of Surety Contract.
§§ '^6,
§ 76. Increase of Funds. — Where the fund is increased within
the legal purview of the contract, the surety is liable for his prin-
cipal's misappropriation of such increase. Thus, where the prin-
cipal receives interest on the fund in the hands of his depositary,
his surety is liable for default in paying over that interest to the
obligee." And so where the State by appropriate legislation in-
creases the funds in the hands of the principal the surety's lia-
bility is not thereby released f^ and interest will be charged from
the date of conversion, for which the sureties will be liable.^* And
so the surety will be liable for liquidated damages.™ And indefi-
nite suretyship extends to all the accessories of tlie principal's ob-
ligation, such, as costs and the like.'^ Unless the surety limits
his liability in the contract, such accessories are within the mean-
ing of the contract of principal and surety.
§ 77. Surety May Limit His Liability. — Where the surety
states the amount for which he will be liable, properly incorpor-
ated in the contract, that amount fixes the extent of his liability.^*
Illinois. — Linch v. Littlefield, 16
111. App. 612.
Indiana. — Urmston v. State, 73 Ind.
175.
MissourL — NoUey v. County Court,
11 Mo. 447.
Nebraska. — Atterstein v. Alpaugh,
9 Neb. 237.
New York. — Sutherland v. Carr,
85 N. Y. 105.
Pennsylrania. — Commonwealth v.
Toms, 45 Pa. St. 408.
Burden of proying time of misap-
propriation. Presumably money
which came into an officer's hands
and should have been there at the
time of the execution of a bond for
the faithful performance of his duties
was still in his possession at that
time, and the burden is on a surety
to prove that the funds presumably
in the hands of his principal had
heen misappropriated before he be-
came liable on the bond. McMullen
V. Wingfield Building & Loan Ass'n,
64 Kan. 298, 67 Pac. 892, 91 Am. St.
Rep. 236, 56 L. R. A. 924.
67. Hunt V. State ex rel. City of
Anderson, 124 Ind. 306, 24 N. E. 887;
Comstock V. Gage, 91 111. 328.
68. People v. Backus, 117 N. Y.
196, 22 N. E. 759.
69. Curtis v. United States, 100 U.
S. 119, 25 L. Ed. 571; Cassady v.
Trustees, 105 111. 560.
70. Gridley v. Capen, 72 111. 11.
71. Woolley v. Van Valkenburgh,
16 Kan. 20; Lafayette, etc., Ass'n v.
Kleinhoff, 40 Mo. App. 388.
See Held v. Burke, 83 App. Div.
(N. Y.) 509, 82 N. Y. Supp. 426.
72. Holthorne v. State (Ind. App.
1912), 97 N. E. 130; Bullowa v. Orgo,
57 N. J. Eq. 428, 41 Atl. 494.
It is competent for one person to
become surety for other sureties, or
to limit the extent of his liability
with respect to other sureties. Citi-
zens' Nat. Bank v. Bruch, 145 N. C.
316, 59 S. E. 71.
§ 78 SUEETYSHIP AND GUARANTY. 94:
So if the sum is increased beyond the amount as set forth in the
contract for which the surety binds himself to pay, the excess
cannot be collected from the surety," for the surety cannot be
bound beyond the scope of his engagement;''* he is bound to the
extent of his agreement, and only by reason of such agreement.'^
And a surety must abide by the terms of his written agreement
as to tlie amount of his liability despite a prior parol understand-
ing to the contrary, in the absence of fraud, mistake and failure
of consideration.''^
While a surety may prove the fact of his suretyship by parol he
cannot be heard to say that by a simple oral agreement with the
payee of the note on which he is surety his liability was to be
limited to a sum less than expressed by the terms of the note. If
this were to be allowed the obligations of sureties would depend,
not upon the instrument they signed, but upon their veracity and
the credulity of the jury."
Where the liability of sureties is each independent of the
other under the contract of suretyship as written, each being liable
for a designated part of the obligation, either may be sued and
the debt of the other forgiven and the defendant cannot be heard
to complain.''^
§ 78. Forged Signatures. — Forgery does not always release
the liability of a surety. Thus, when the name of one or more
obligors in a bond or note or other writing obligatory has been
forged, the surety, though he signed in the belief that the forged
73. Bragg v. Shaw, 86 111. 78; Fin- New York.— Ludloy v. Simond, 2
ney v. Condon, 86 111. 78; Farmers', Calne's Cas. 29.
etc., Bank v. Evans, 4 Barb. (N. Y.) Ohio. — Stetson v. Bank, 12 Ohio
487; Kimball W. W. Co. v. Baker, 62 St. 577.
Wis. 526, 22 N. W. 730. Wisconsin.— Smith v. Lockwood.
74. Parker v. Wise, 6 Maul-^ & S. 34 Wis. 77.
239. England. — Ellesmere Brewing Co.
75. Indiana. — Houck v. Graham, v. Cooper (1896), 1 Q. B. 75.
123 Ind. 277, 24 N. E. 113. See §§ 66 et seq herein.
Iowa. — Doud V. Walker, 48 Iowa 76. Milan Bank v. Richmond, 235
634. Mo. 532. 139 S. W. 352.
Massachusetts. — Bank v. Smith, 12 77. Milan Bank v. Richmond, 235
AllPn 243. Mo. 532, 139 S. W. 352.
Michigan.— Gay t. Hultz, 56 Mich. 78. Bolton v. Gifford & Co., 45 Tex.
153, 22 N. W. 271. Civ. App. 140, 100 S. W. 210.
99 Scope of Surety Contract. § 79
name was genuine, is nevertheless bound if the payee or obligee
accepted the instrument without notice and for value.^®
A surety signing a bond after other sureties have executed the
same affirms the genuineness of the previous signatures.*'^ The
surety's liability is not changed, though two names or more of
the principals are forged, the fact being unknown to the surety
and holder when delivered.*^ And where one surety, a married
woman, is released on account of coverture, this does not dis-
charge the other surety.*^
In order to estop a surety from claiming that his signature to
a note was a forgery it is held that it must appear that the surety
fraudulently and purposely kept such information from the holder
of the note and that the principal at that time had property out
of which the payment of the note could have been enforced.*^
§ 79. Additional Employment. — If the office held by the prin-
cipal is altered by addition of new duties, the surety is no longer
liable; but w'hen the principal is appointed to a new office, the
surety is still liable for defaults connected with the old office.**
Where the omissions of the principal to perform his duties is
wholly disconnected from improper acts on his part in the new
business, and is not superinduced by his new appointment, the
surety is still liable.*^ But the liability of the surety cannot be
extended to embrace other undertakings not specifically covered
by his bond.*^ So where the liability of the surety is limited to
79. Illinois.— Stoner v. Milliken, 85 81. Chase v. Hathorn, 61 Me. 505.
111. 218. 82. Warren v. Tobacco Exchange
Indiana.— Helms v. Society, 73 Ind. (Ky.) , 55 S. W. 912.
325. 83. Maxwell v. Wright (Ind. App.
Kentucky.— Wheeler v. Traders' 1902), 64 N. E. 893.
Deposit Bank, 107 Ky. 653, 55 S. W. 84. Skillett v. Fletcher, L. R. 2 C.
552. P 469.
Massachusetts. — Veazie v. Willis, 6 See § 72 herein, as to employment
Gray 90. on condition changed by employer or
Nebraska, — Lombard v. Mayberry, by the legislature.
24 Neb. 674, 40 N. W. 271. 85. Home Savings Bank v. Traube,
Compare Southern Cotton Oil Co. 75 Mo. 199.
V. Bass, 126 Ala. 343, 28 So. 576. 86. Noyes v. Granger, 51 Iowa 227,
80. Johnson County v. Chamber- 1 N. W. 519; Kellogg v. Scott, 58 N.
lain Banking House, 80 Neb. 96, 113 J. Eq. 344, 44 Atl. 190.
N. W. 1055; Selser v. Brock, 3 Ohio
St. 302.
§ 80 Suretyship and Guaranty. 95
the transactions and defaults of a principal, he cannot be mad»
liable for defalcations and omissions of another principal, who
joins the first in the business;*^ because where a surety agrees to
answer for the defaults of a principal, he does not thereby agree
to answer for the defaults of a firm of which his principal may
become a partner.^^
So as a general rule, in the absence of legislation, or by ex-
press agreement, there is no liability on the part of a contractor
to respond to parties employed by a sub-contractor/* and so the
sureties of the contractor are not liable to such employees.^*^
§ 80. Act of Principal Not in Line of His Business. — A surety
will not, in general, be relieved from responsibility because the
act of the principal which occasioned the loss was not strictly in
the line of his duties of his office, or was done in the course of
temporary or casual performance of other duties at the request
of his employer.^^ Nor will the imposition of additional, distinct
and consistent duties upon the principal, or his appointment to
an additional office, his original office being retained, necessarily
relieve the surety from his obligation, if the new duties or the new
office have no such connection with the old as to interfere with or
affect the original employment.®^ But if the principal is pro-
moted and such promotion involves a material alteration of tlie
principal's duties, this will increase the peril of the surety and
relieve him from his bond.®^ And in general, the liability of a
surety on an official bond cannot without his consent be extended
or enlarged by the obligee or by operation of law.®*
, 87. White Sewing Mach. Co. v. ter Bank v. Ellwood, 21 N. Y. 88; Ger-
Hines, 61 Mich. 423, 28 N. W. 157. man Bank v. Auth, 87 Pa. St. 419.
88. Parham Sewing Mach. Co. v. 92. Mayor v. Kelley, 98 N. Y. 468;
Brock, 113 Mass. 194; Palmer v. American Tel. Co. v. Lennig, 139 Pa.
Bagg, 56 N. Y. 523; Dobbins v. Brad- St. 594, 595, 21 Atl. 162.
ley, 15 Wend. (N. Y.) 422; Dry v. 93. Manufacturers' Bank v. Dick-
Davy, 10 Ad. & El. 30; Billairs v. erson, 41 N. J. L. 448.
Ebsworth, 3 Camp. 52. 94. Smith v. United States, 2 Wall.
89. Wells V. Williams, 39 Barb. (N. (U. S.) 219, 17 L. Ed. 788; Miller v.
Y.) 567. Stevens, 9 Wheat. (U. S.) 680, 6 U
90. Faurote v. State, 110 Ind. 463, Ed. 189; Single Machine Co. t.
11 N. E. 472. Hebbs, 21 Mo. App. 574; Besinger t.
91. Detroit Sav. Bank v. Ziegler, Wren, 100 Pa. St. 500.
49 Mich. 157, 13 N. W. 496; Roches- See, also, cases cited in §§ 70 and
72 herein.
"97 Scope of Surety CoNTit.vcT. §§ 81, 82
§ 8i. Becoming Surety for Payment of Rent. — A party, as in
other contracts of suretyship and guaranty, may become a surety
to the payment of rent. And where rent is payable in install-
ments and the landlord releases the tenant as to payment of in-
stallments due or past due, it will not relieve the surety of the
tenant from liability as to subsequent installments f^ because each
installment is a separate and independent demand, and so the
extension of the time of payment, or release of payment, will not
impair the obligation of the surety as to the others.^®
§ 82. Ten,ant Holding Over. — The surety may become liable,
if the contract so expresses the intention of the parties, for rent
where the tenant holds over." But if the lease does not provide
that the surety shall be liable for a second term or for rent In
case the tenant holds over, the surety is liable only for the term
stated in the lease, for it cannot be implied that the surety agreed
to such extension.®*
If the lease is defective, but the tenant enters upon the premises,
then the surety is liable.®^ And a guarantor of the payment of
rent is not discharged from liability for rent past due, by a sur-
render of the lease, and of rent thereafter to accrue, without
his knowledge or coonsent. Nor is he released by the destruction
of the building by fire as to rent thereafter accruing.^ And when
the rent is specifically guaranteed to the landlord, he cannot trans-
fer a legal title to the guaranty to his assignee of the lease,^ be-
cause a special guaranty cannot be assigned, as it is limited to
the person to whom it is addressed, and usually contemplates a
trust or reposes a confidence in such person. Such a guaranty
may not be assigned until the right of action has accrued.^ But
95i, Kingsbury v. Williams, 53 98. Brewer v. Thorp, 36 Ala. 9.
Barb. (N. Y.) 142; Ducker v. Rapp, 99. Clark v. Gordon, 121 Mass. 330.
67 N. Y. 464; Coe v. Cassidy, 72 N. Y. 1. Kingsbury v. Westgate, 61 N.
133. Y. 336.
As to discharge of surety on bond 2. Potter v. Gronbeck, 117 111. 404,
to secure lease, see § 111 herein. 7 N. E. 586.
96. Ducker v. Rapp, 67 N. Y. 464. 3. Jex v. Straus, 122 N. Y. 293, 25
97. Rice v. Loomis, 130 Mass. 302, N. E. 478.
1 N. E. 548; Dufau v. Wright, 25
Wend. 636; Debloig v. Earle, 7 R. I.
26.
7
§§ 83, 8^ SUKETYSHIP AND GuAEANTY. 98
one who purchases a note which is guarantied generally, is en-
titled to the benefit of such general guaranty,* though he buys in
ignorance thereof.^
§ 83. Principal Associating With Others. — A surety for a
principal cannot be made liable for default if other parties be-
come associated with his principal in business. Thus, where the
principal enters a partnership the surety is not liable for the
partnership defaults, because it is a material change as to his
liability. And conversely, where the principal takes another per-
son into his business, his surety is no longer liable. Taking a
partner is a violation of the contract with the surety ; he engages
as surety for the conduct of one man, and to bring two or more
principals into the business would be a violation of his contract.*
So a guaranty of the payment of goods supplied to two parties
is made invalid when one partner goes out of business with the
consent of his copartner and the vendor.^
§ 84. Several Principals — Partnership. — If a party engages as
surety to several individuals, his obligation does not extend be-
yond the death or retirement of any of them for whom he has
engaged to be answerable. This rule applies as well to parties
to whom the surety is bound, the obligee, as to those for whom
he is bound, the obligors.^
In the nature of things there cannot be a partnership consist-
ing of several persons, in which there are not some possessed of
greater business capacity than the others, and it may be that a
4. Ellsworth v. Harmon, 101 111. S.) 203; London Assurance Corpora-
274; Claflin v. Ostrom, 54 N. Y. 581. tion v. Bold, 6 A. & E. 523.
6. Tidioute Savings Bank v. Lib- 7. Bill v. Barker, 16 Gray (Mass.)
bey, 101 Wis. 193, 77 N. W. 182. 62.
6. Connecticut Mut. L. Ins. Co. t. 8. State v. Boon, 44 Mo. 254; Blair
Scott, 81 Ky. 540; Parham Sew. v. Ins. Co., 10 Mo. 559; Penoyer v.
Mach. Co. V. Brock, 113 Mass. 197; Watson, 11 Johns. (N. Y.) 100; Smith
White Sewing Mach. Co. v. Hines, 61 v. Montgomery, 3 Tex. 203; Uni-
Mich. 423, 28 N. W. 157; Matthews versity of Cambridge v. Baldwin, 5
-V. Garman. 110 Mich. 559, 68 N. W. Mees. & W. 585; Simpson v. Cook, 1
243; Bellaire v. Ebsworth, 3 Camp. Bing. 452; Myers v. Edge, 7 T. R.
55; Montefiore v. Lloyd, 15 C. B. (N. 254; Strange v. Lee. 3 East 484;
Weston V. Barton, 4 Taunt. 673.
09! Scope of Surety Conteact. § 85
partner dying or going out of the firm may be the very one on
whom the surety himself relies; it would be, therefore, very un-
reasonable to hold the surety to the contract after such change.'
A surety who engages to be responsible for the honesty of a
firm may be entirely influenced by the consideration that one of
the partners is a man of integrity, and of such strength of char-
acter, and such shrewdness and watchfulness in business affairs,
that the risk of dishonesty from the action of the other partner,
in whom the surety can place no trust, is reduced to the mini-
mum/*'
The only exceptions to this rule are: (1) Where the nature
of the obligation expressly limits the liability or extends it to the
survivors, whether associated together or otherwise. (2) Where
the parties for or to whom the sureties are bound, are described
as a class, company, bank, or the like, and not to the members or
partners nominatim, so as plainly to imply that the security is
given to or for the class or body as such, regardless of changes in
the integral parties.^^
§ 85. Death of Surety. — The death of the surety does not ord-
inarily terminate his contract when it is a continuing one. In
such case if defaults occur after his death his estate is liable for
the default of the principal. Thus, where a bond is given bind-
ing the surety, " his heirs, executors and administrators," the lia-
bility of the surety is not terminated by his death, but extends to
his estate.^ So a continuing suretyship is not terminated by the
death of the surety as to moneys and property of the obligee, in
the line of the business, that may come into the hands of his prin-
cipal after his death ; upon default of the principal the obligee has
recourse to his estate.^^ The liability of a surety on an official
bond during the continuance of the principal's term of office, ex-
tends as well to definite defaults committed after as before the
9. Weston v. Barton, 4 Taunt. 673. 12. Royal Ins. Co. v. Davis, 40
10. Standard Oil Co. v. Arnestad, Iowa 499; Gordon v. Calvert, 4 Russ.
6 N. D. 255, 69 N. W. 197, 66 Am. St. 581.
Rep. 604, 34 L. R. A. 861, per Cor- Principal should be joined in suit
liss, J. against estate of surety. Hume v.
11. Gorgan v. School District, 4 Perry (Tex. Civ. App. 1911), 136 S.
Colo. 53; Barclay v. Lucas, 1 Term W. 594.
R. 291. 13. Rapp v. Ins. Co., 113 III. 390.
§86 Suretyship and Guakanty. 100
death of the surety.^* Whenever the undertaking of the surety
is for a definite period, as for the officer's conduct during his term
of office, or for the repayment of advances made to the principal
in the bond, until notice is given the obligee that the liability is
terminated, the estate of the surety in the hands of his administra-
tor or executor is answerable for any defaults of the principal oc-
curring after his death; this is especially so where the surety
binds his " heirs, executors and administrators " for the perform-
ance of his undertaking.^^
But the estate of a surety was held to be relieved from liability
where the deceased's wife, who was administratrix, was ignorant
as to the liability of her husband as surety on a note and the bank
which held the note kept her in ignorance thereof and by positive
statements of the cashier made her believe that her husband's
estate was not liable and it appeared that soon after the note fell
due the bank had an abundance of money in its possession to pay
the note, but failed to apply it in payment thereof. ^^
§ 86. Construing a Joint Obligation as Several. — A court will
not vary the legal effect of the instrument by making it several
as well as joint unless it can see either by independent testimony
or from the nature of the transaction itself, that the parties con-
cerned intended to create a separate as well as a joint liability. If
from fraud, ignorance or mistake, the joint obligation does not
express the meaning of the parties, it will be reformed so as to
conform to it. This has been done where there is a previous equity
which gives the obligee the right to several indemnity from each
of the obligors, as in the case of money lent to both of them. In
such case a court of equity will enforce the obligation against the
representatives of the deceased obligor, although the bond be joint
and not several, on the ground that the lending to both creates a
moral obligation in both to pay, and that the reasonable presump-
tion is the parties intended their contract to be joint and several,
but through fraud, ignorance, mistake or want of skill, they failed
14. Green v. Young, 8 Me. 14. desty, 28 Ky. Law Rep. 1285, 91 S.
15. Moore v. Wallis, 18 Ala. 458; W. 729.
Hightown v. Moore, 46 Ala. 387; See, also, Pursiful v. Pineville
Mowbray v. State, 88 Ind. 327. Banking Co., 97 Ky. 154, 160, 30 S.
16. Bank of Taylorsville v. Har- W. 203.
lOli Scope of Surety Contract. § S6
to accomplish their object." This presumption is never made in
the case of a mere surety, whose duty is measured alone by the
legal force of the bond, who is under no moral obligation whatever
to pay the obligee independent of his covenant, and consequently
there is nothing on which to found an equity for the interposition
of a court of chancery. If the surety should die before his prin-
cipal his representatives cannot be sued at all on the joint obliga-
tion ; nor will they be charged in equity^^
It is the rule that, in case of joint obligation of sureties, if one
of the joint obligors die, his representatives are discharged and
the survivors alone can be sued, but where the joint obligors are
two principal debtors who receive some benefit from the joint ob-
ligation, courts of equity have taken jurisdiction in case of the
death of one of the obligors and enforced the obligation against
his representatives. Because in conscience the estate of the de-
ceased obligor ought to respond to the obligation.^* But the mere
joint obligation of a deceased principal is not sufficient to create
an equity against his estate. His estate cannot be pursued in
equity unless there is some moral obligation antecedent to the
bond. But such obligation cannot exist where the deceased is a
mere surety.^''
Where persons sign promissory notes as sureties and in each of
them they " jointly and severally " promise to pay the amount
stated each becomes liable individually and severally as well as
jointly for the payment. ^^
17. Powell V. Kettelle, 1 Gil. (III.) 19. Boskin v. Andrews, 87 N. Y.
49; Richardson v. Draper, 87 N. Y. 337.
337; Baskin v. Andrews, 53 Hun 95, 6 20. United States v. Price, 9 How.
N. Y. Supp. 441. (U. S.) 83, 13 L. Ed. 56; Pickersgill
18. Pickersgill v. Lahens, 15 Wall. v. Lahens, 15 Wall. (U. S.) 140, 21
(U. S.) 140, 21 L. Ed. 119; United L Ed. 119.
States V. Price, 9 How. (U S.) 83, 21. East Bridgewater Savings
13 L. Ed. 56, 1 Wall. Jr. 173; Waters Bank v. Bates, 191 Mass. 110, 77 N.
V. Riley, 2 Harris & G. (Md.) 311; E. 711, citing Hunt v. Adams, 5 Mass.
Bradley v. Burwell, 3 Denio 65; 358; Hunt v. Adams, 6 Mass. 519,
Weaver v. Shyrock, 6 Serg. & R. 523; Union Bank v. Willis, 8 Mete.
(Pa.) 262. (Mass.) 504, 510. It was also held
In some States the obligation of that the defendant signed as surety
the surety survives his death, and did not affect her primary liability
his estate is bound, controlled by to the holder of the notes, but only
statute. Redmon v. Marvel, 73 Ind. showed the relations of the makers
693; Miss. Code 2353. to one another.
§ 87i Suretyship and Guaranty. 102
§ 87, Revoking Suretyship. — It has already been shown when
death of surety revokes his liability. The general rule is a surety
or guarantor cannot relieve himself of future liability by serv-
ing notice on the obligee in the absence of a stipulation in the
contract to that effect. Thus, where a surety becomes liable for
the rent of premises for a time certain, the mere notice by him
that he will not be liable further has no effect upon his contract ;
he cannot dissolve his contract at pleasure.^^ If a surety desires
to terminate his liability by notice, he must in the absence of a
statute so specify in his contract.^'
In the case of a simple guaranty for a proposed loan, the right
of revocation exists before the proposal has been acted upon. The
promise to guarantee for a time definite creates no additional
liability on the guarantor, but, on the contrary, fixes the limit in
time beyond which his liability cannot extend. So such a guar-
anty to secure money to be advanced to a third party on discount
to a certain amount for such time is revocable within that time.^*
A mere offer to guarantee is only binding so far as it is acted
upon, and the guarantor may revoke the offer before its accept-
ance. Where the guaranty is not a continuing one, the guarantor
may terminate his responsibility at any time by giving notice to
the other party that he will be holden no longer. Thus, an ac-
commodation note, made payable at a bank on demand, may be
pledged by the principal as a continuing guaranty for future
loans, to be made to him by the bank ; but the surety may termi-
nate his responsibility by notice.^^ A guaranty may be revoked
at any time when the promise creates no obligation, but is in the
nature of a proposal.^® And when a surety has a right by his
contract to terminate his liability by giving notice, after notice
he is no longer liable for subsequent acts of his principal."
22. Coe V. Vogdes, 71 Pa. St. 383. 26. Offord v. Davies, 12 C. B. (N.
23. Calvert v. Gordan, 3 Man. & S.) 748; Jordan v. Dobbins, 122 Mass.
Ry. 124. 168; Hyler v. Habich, 150 Mass. 112,
Consent of obligee's agent held 22 N. E. 765.
sufficient. White Sewing Mach. Co. 27. Pleasant's Appeal, 75 Pa. St.
V. Courtney, 141 Col. 674, 75 Pac. 383.
296. Where one of the sureties on a
24. Offord V. Davies, 12 C. B. (N. guardian's bond caused to be exe-
S.) 748. cuted a notice to require the guard-
25. Agawam Bank v. Strever, 18 ian to execute a new bond, the notice
N. Y. 502. being only for the purpose of releaa-
103 Scope of Subety Contkact. § 88
And where the period of the surety's liability is not fixed, he
can terminate his liability by giving notice to the obligee that he
will be no longer bound.^^ In giving this notice, it should be clear
^nd explicit and not ambiguous.^^ In continuing contracts guar-
antying the fidelity of a person, or employee, the revocation may
be made upon proper notice, but the right must be exercised rea-
sonably, giving the employer a reasonable time to adjust the
changed circumstances. Thus, the employer cannot be compelled
to discharge the employee instantaneously, but he may take a
reasonable time to do it.^''
In a proceeding by a surety to be relieved from liability upon
a note it is held that the principal is not a necessary party.^^
§ 88. Default of Principal. — Where the person employed com-
mits an act of dishonesty or defaults and is unfaithful to his
trust, which is known to his employer, the employer is, in duty
bound for his own protection, to take precaution for his own safety
which the surety may require to be taken for his, in order that
future defaults may be avoided.^^ Knowledge of the dishonesty
of the employee by the employer, which renders him unfit for the
place, without disclosure of the fact to the guarantor or surety,
terminates the contract, and confines the liability to acts already
<ione."
But this conduct of which the employer has knowledge, and
which will release the guarantor or surety from further liability,
must relate to the service in which the principal, or employee, is
engaged, and must be something more than mere delinquency,
Ing the surety named in the notice, Bank, 102 Ind. 332, 1 N. E. 805; Bost-
and the guardian executes a new wick v. Van Voorhis, 91 N. T. 353.
bond, all the sureties on both bonds, 31. Reeves & Co. v. Jowell (Tex.
except the surety making the motion Civ. App. 1911), 140 S. W. 364.
for a release, are liable for both the 32. Dwelling House Ins. Co. v.
past and future acts of the guardian, Johnston, 90 Mich. 170, 51 N. W. 200.
but the one so mentioned is liable 33. La Rose v. Logansport Nat.
only for the past acts of the guard- Bank, 102 Ind. 332, 1 N. E. 805;
Ian. Abshire v. Rowe, 23 Ky. Law Graves v. Bank, 10 Bush (Ky.) 23;
Rep. 1854, 66 S. W. 394. Emery v. Baltz, 94 N. Y. 408; Hunt
28. Pratt v. Trustees, 93 111. 475; v. Roberts, 45 N. Y. 691; Phillips v.
Jendevine v. Rose, 36 Mich. 54. Foxall, L. R. 7 Q. B. 666; Burgess v.
29. Lenusse v. Barker, 3 Wheat. Eve, L. R. 13 Eq. 450; Sanderson v.
(U. S.) 101, 4 L. Ed. 343. Oston, L. R. 8 Exch. 73.
80. La Rose v. Logansport Nat.
§§ 89, 90 Suretyship and Guaranty. 104
having no relation to or connection with the subject-matter of the
guaranty or suretyship.^*
§ 89. Revival of Surety's Liability. — At common law an oral
acknowledgment is sufficient to revive a barred debt.^^ In some
States the promise must be express, or an additional promise with
a performance of a condition, or a qualified admission that the
debt is due and unpaid. The promise must be of such character
as to clearly show a recognition of the debt and an intention to
pay it.^^ Such new promise requires no new consideration to
support it." So where a surety is relieved of liability on a note,
and subsequently he makes a part payment of the note and prom-
ises to pay the balance with knowledge that his liability had been
extinguished, it will bind him, as it revives his liability.^^ Some
decisions, however, hold that a new consideration as well as a new
promise is necessary to take the case out of the operation of the
statute of limitation.^^ But this matter is regulated, in many
States, by statutory provisions.
Under the common law, where a surety has been released by
the extension of the time of payment, his liability will be revived
by a new promise to pay, or by his absolute and unqualified ac-
knowledgment of the existence of the debt, which implies a prom-
ise to pay.*"
§ 90. Part Payment By One of Several and Joint Debtors. —
The American doctrine is that a part payment by one of several
joint debtors is inoperative to prevent the running of the statute
of limitations as to the others.*^ In order to prevent the running
of the statute, payment must be made by the debtor in person,
or for him by authority, or for him and in his name without au-
34. La Rose v. Logansport Nat. 39. Van Derveer v. Wright, 6
Bank, 102 Ind. 332, 1 N. E. 805; An- Barb. (N. Y.) 547.
drews v. Beall, 9 Cow. (N. Y.) 693; 40. Banning v. Hall, 70 Minn. 89.
Atlas Bank v. Brownell, 9 R. I. 168. 72 N. W. 817; Fowler v. Brooks, 13
35. Perkins v. Cheney, 114 Mich. N. H. 240; Bramble v. Ward, 40 Ohio
567, 72 N. W. 595. St. 267; Smith v. Winter, 4 Mees. &
36. Carroll v. Forsyth, 69 111. 127. W. 454; Stevens v. Lynch, 12 East 38.
37. Parsons v. Dickinson, 23 Mich. 41. Waughop v. Bartlett, 165 111.
56; Tebbetts v. Dowd, 23 Wend. (N. 124, 46 N. E. 197; Willoughby v.
Y.) 379. Irish, 35 Minn. 63, 27 N. W. 379.
38. Hinds v. Ingham, 31 111. 400.
105 Scope of Surety Contract. § 90
thority, but subsequently ratified by him. The mere fact that he
has knowledge of payment being made by his co-debtor is not
sufficient.'*^ Hence, a partial payment of a promissory note or debt
by the principal debtor will not suspend the statute of limitations
as to the surety/^ Because the partial payment voluntarily made
by a debtor upon a claim or debt is in the nature of an acknowl-
edgment or admission by him of his liability for the whole de-
mand, and from the fact that he made the payment, a new
promise on his part to pay the remainder of the debt may be im-
plied, and under this legal inference such new promise arises at
the time the partial payment is made, but this does not renew the
debt as to his co-debtors." Thus, partial payment made by one
debtor on a note, will not suspend the running of the statute in
favor of the other debtors thereon, although the party paying be
the principal debtor and the others only sureties/^
The duty resting upon a surety to see that his principal per-
forms the contract guaranteed, subsists as a moral obligation after
the statute of limitation has run against the right to enforce it,
and will support a new promise by the surety to answer for the
principal's default.^®
But other courts, following the English rule, hold that part
payment by one of the several and joint makers, before the statute
attaches, takes it out of the operation of the statute as to the
other debtors, or makers. The principle on which payment by a
42. McMullen v. Rafferty, 89 N. Y. Willoughby v. Lush, 35 Minn. 63, 27
456; Littlefield v. Littlefield, 91 N. Y. N. W. 379.
203. New York.— McLaren v. McMartin,
43. Mozingo v. Ross, 150 Ind. 688, 36 N. Y. 88; Winchell v. Hicks, 18
50 N. E. 867. N. Y. 558; Harper v. Fairley, 53 N.
44. United States. — Bell v. Morri- Y. 442; Shoemaker v. Benedict, 11
son, 1 Pet. 351, 7 L. Ed. 174. N. Y. 176; Van Keuren v. Parmelee,
Georgia. — Hunter v. Robertson, 30 2 N. Y. 523 ; Graham v. Selover, 59
Ga. 479. Barb. 313.
Kansas.— Davis v. Clark, 58 Kan. Ohio.— Vance v. Hair, 25 Ohio St.
454, 49 Pac. 665; Steele v. Souder, 349; Morienthal v. Mosler, 16 Ohio
20 Kan. 39. St. 566.
Louisiana. — Smith v. Coon, 22 La. 45. Waughop v. Bartlett, 165 111.
Ann. 445; Succession of Voorheis, 21 124, 40 N. E. 197; Mozingo v. Ross,
La. Ann. 659. 150 Ind. 688, 50 N. E. 867; Steele v.
Minnesota. — Pfenninger v. Ko- Souder, 20 Kan. 39.
kesch, 68 Minn. 81, 70 N. W. 867; 46. Perkins v. Cheney, 114 Mich.
567, 72 N. W. 595.
§§ 91, 92 SUEETTSHIP AND GUAKANTT. 106
joint debtor is allowed to affect the other parties, is the community
of interest among them, which creates the presumption that the
party paying would not acknowledge that which is adverse to his
own interest, and therefore it will be in the interest of the others
and bind them."
§ 91. Absence of Principal from the State. — Under the gen-
eral American rule, the absence of the principal from the State
will not suspend the running of the statute in favor of the surety.''*
Because the principal's and surety's liability are several; and
where there is a several liability, each debtor is entitled to the
protection of the statute, and can be deprived of it only by some
personal act of his own. The sureties are severally liable, and are
severally entitled to the protection of the statute of limitation."
§ 92. Disability of Principal. — As a general rule, whenever
the principal is discharged, his surety will be relieved of liability
also. To this rule, however, there are exceptions. Thus, in some
States, a note by a married woman is void. But her surety, in
the absence of fraud, is liable on the note, notwithstanding her
discharge.^" If the payee is ignorant of the insanity of the prin-
cipal on a note, such insanity will discharge the principal, but not
the surety." And sureties cannot plead infancy of the principal.^'
47. Connecticut, — Caldwell y. Sig- 50. Indiana. — Davis v. Stotts, 4S
ourney, 19 Conn. 37. Ind. 103.
Maine. — Pike v. Warren, 15 Me. lorra. — Allen t. Berryhill, 27 Iowa
390. 531; Jones v. Crothwaite, 17 Iowa
Massachusetts. — Hunt v. Bridg- 393.
ham, 2 Pick. 581. Mississippi— Whitworth v. Carter,
Missouri. — Block v. Dorman, 51 43 Miss. 61.
Mo. 31. MissourL — Lobaugh v. Thompson,
New Jersey. — Corliss v. Fleming, 74 Mo. 600.
30 N. J. L. 349; Disbrough v. Bide- New Jersey. — Wagoner v. Watts,
man, 20 N. J. L. 275. 44 N. J. L. 126.
Rhode Island.— Perkins v. Bar- New York.— Kimball v. Newell, 7
Btown, 6 R. I. 505. Hill (N. Y.) 116.
Vermont. — Whitlock v. Doolittle, 51. Lee v. Yandell, 69 Tex. 34, 6
18 Vt. 440. S. W. 665.
48. Bottles V. Miller, 112 Ind. 584; 52. President and Fellows of Har-
Mozingo V. Ross, 150 Ind. 688, 50 N. vard College v. Kempner, 131 App.
E. 867. Dlv. (N. Y.) 848, 116 N. Y. Supp. 437.
49. Davis v. Clark, 58 Kan. 454, 49
Pac. 665.
107 StooPE OF Surety Conteact. § 93
Nor is the surety's liability tested by determining whether he
can recover indemnity from his principal. When the contract is
valid in its inception, the principal debtor may be discharged by
•operation of law without discharging the surety, where the cred-
itor does not by his acts contribute to the release. Thus, a dis-
charge of the principal in bankruptcy does not discharge the
surety. ^^ And where a married woman's note is void, she may
buy real estate and give her note signed by sureties for the pur-
chase price, and the sureties only will be held, though the title to
the real estate passes to the woman."
So a surety signing a partnership note is bound, though the
note was executed by one of the partners without authority.^'
And sureties cannot escape liability on the ground that the obligee,
a foreign corporation, is not registered in the state, as required by
the general Corporation Law." Where a note is procured by
<luress in violation of law, and contrary to pulblic policy, morality
and justice, then the surety is not liable further than the princi-
pal, and whatever discharges the principal frees the surety from
liability."
§ 93- Conflict of Laws. — Suretyship, like other contracts, is
governed by the law of the place where made. Thus, a note made
and payable in a State, signed by a surety, will be governed by the
law of that iState ; and so the law of that State relating to sureties
applies in a suit in another iState.^* And so if the note would be
invalid if made in the 'State where enforced, yet if valid in the
State where made the court will apply the law of the State where
executed."
But where a contract is made relating to the title of real estate,
68, Guild V. Butler, 122 Mass. 498; 6«. President and Fellows of Har-
Lackey v. Steere, 121 111. 598, 13 N. vard College v. Kempner, 131 App.
E. 318; Ellis v. Wilmot, 10 Exch. 10. Div. (N. Y.) 848, 116 N. Y. Supp. 437.
64. Foxworth v. Bullock, 44 Miss. 67. Osborn v. Robbins, 36 N. Y, 365.
457. 68. Howard v. Fletcher, 59 N. H.
See, also, Wiggins Appeal, Winn 151,
-V. Sandford, 145 Mass. 302, 14 N. E. See Pugh v. Cameron's Adm'r. 11
103; Yales v. Wheelock, 109 Mass. W. Va. 523.
502; Patterson v. Cone, 61 Mo. 439; 59. Long v. Templeman, 24 La.
Wiggins, 100 Pa. St. 155. Ann. 564; Milliken v, Pratt, 125 Mass.
65. Stewart v. Baehm, 2 Watts. 374.
<Pa.) 356.
§ 93 Suretyship and Guaranty. 108-
that is diifcrent. The general principle of the common law is that
the law of the place where real estate is situated exclusively gov-
erns, in respect to the right of the parties, the transfer and solem-
nities which must accompany them. Hence, a promissory note
made by a wife as surety for her husband, in a State, where she
resides, although void there by the law of that State, can be en-
forced against her separate estate in land in another State where
she would have a right so to contract, when she contracted with
reference to such separate estate and intended to charge it with
her debt.''^
60. Frierson v. ■Williams, 57 Miss. 451.
1091 DiSCHAKGE OF SuRETY.
CHAPTER V.
DISCHARGE OF SURETY.
Section 93a. Discharge of Surety Generally.
94. Payment of Debt Discharges Surety.
95. What Acts of Principal Will Discharge the Surety After
Judgment.
96. Legality of Payment.
97. Application of Payments.
98. Application by Law.
99. Note Payable to a Bank — Application of Debtor's Deposit.
100. Change in the Principal Contract.
101. Where the Surety is not Discharged by Change of Contract.
102. Alteration of the Instrument.
103. Material Alteration of Instrument.
104. Commercial Instruments.
105. Change of Date.
106. Alteration of Amount.
107. Alteration of the Rate of Interest.
108. Changing the Place of Payment.
109. Destroying the Identity of the Contract.
110. Addition of Surety to a Note.
111. Changing the Covenants of a Lease Signed by Surety.
112. Building Contracts.
112a. Building Contracts — Surety Released by Change of.
112b. Building Contracts — Where Change Authorized.
112c. Building Contracts — Permissive and Immaterial Devia-
tions.
112d. Building Contracts — Payment — Certificate of Architect or
Other Person.
112e. Building Contracts — Payment Generally.
112f . Building Contracts — Acceptance by Architect — Certifi-
cate.
113. Extension of Time of Payment.
113a. Extension of Time of Payment — Where Instrument Pro-
vides for.
113b. Extension of Time of Payment — Evidence — Burden of
Proof.
114. Consideration.
115. Effect on Surety's Contract by Taking Usury for Extension.
116. Effect of Creditor's Reservation of His Remedies Against
Surety.
117. Extension with Consent of Surety.
118. Waiver of Discharge.
119. Extension Must Be for a Time Certain.
§ 93a Suretyship and Guaranty. 110
Section 120. Giving Time to One or Two or More Sureties.
121. "What is a Promise of Extension.
122. Accepting New Note.
123. Taking Collateral Security.
124. Personal Judgment for Deficiency in Foreclosure Proceed-
ings.
125. Fraud — Extension of Time.
126. Fraud to Induce Surety to Sign Contract.
127. Notice to Creditor of Principal Debtor's Dishonesty.
128. Negligence of Creditor in Not Availing Himself of the
Debtor's Means.
129. Surety Signing Upon Condition.
130. Surrendering Security.
131. Taking Property by Attachment and Execution.
132. Failure to Apply Securities.
133. Release of Co-surety.
134. Failure of Creditor to Sue Principal.
135. Disaffirmance of Contract by Principal.
136. Fraud Upon the Principal.
137. Substitution of Securities.
138. Payment of Consideration in Installments — Building Con-
tracts.
139. Tender of Payment,
Sec. 93a. Discharge of Surety Generally. — When a principal
discharges his full obligation his surety is also discharged.^
And in general any act of the creditor done without the surety's
assent and by which the latter is exposed to greater liability or
his risk increased will operate as a discharge. " The general rule
is that a surety who has entered into his contract under an agree-
ment providing for a security for himself, and has annexed condi-
tions, failure of the creditor to comply with the agreement, or
1. City of New York v. Seely-Tay- of contracting a surety for him is not
lor Co., 149 App. Div. (N. Y.) 98, 133 released because of such incapacity.
N. Y. Supp. 808. Gates v. Tebbetts, 83 Neb. 573, 119
Release of principal discharges N. W. 1120, 20 L. R. A. (N. S.) 1000.
snrety. Brown v. Vermont Mutual See, also, § 92 herein.
Fire Ins. Co., 83 Vt. 161, 74 Atl. 1061; Where statute provides manner of
Brown v. Chicago, R. I. & P. Ry. Co., discharge of negotiable instruments
76 Neb. 792, 107 N. W. 1024; Long those primarily responsible are not
V. Patton, 43 Tex. Civ. App. 111. released by a discharge in some
Compare Wheeler v. Werner, 140 other manner. Richards v. Market
App. Div. (N. Y.) 695, 125 N. Y. Supp. Exch. Bank Co., 81 Ohio St. 348, 90
637. affirming 121 N. Y. Supp. 681. N. E. 1000.
Where the principal is incapable
nil
Discharge of Surety.
§ 94
disregard of sucli conditions without his consent, releases the
surety." ^
§ 94. Pa3mient of Debt Discharges the Surety. — Payment of
the debt by the principal discharges the surety.' Whenever the
principal debtor is released the surety or co-sureties are also dis-
charged, and it is immaterial by whom the debt is paid.* Thus,
if the creditor receives money from the principal as payment, the
surety is discharged, although the money was that of a third
party who had made the principal his agent to huy the note and
2. Reeves v. Jowell (Tex. Civ, App.
1911), 140 S. W. 364, per Hall, J.
See, also, following cases:
Georgia. — Wilkinson v. Conley, 133
Ga. 518, 66 S. E. 372; Deariso v.
First National Bank, 7 Ga. App. 841,
€8 S. E. 449; Hancock v. Bank of
Tipton, 6 Ga. App. 678, 65 S. E. 784.
Minnesota. — Bandler v. Bradley,
110 Minn. 66, 124 N. W. 644.
Missonri. — Harris v. Taylor (Mo.
App. 1910), 129 S. W. 995.
Pennsylvania. — Banschard Co. v.
Fidelity & Casualty Co., 21 Pa. Super.
Ct. 370.
Vermont. — Brown v. Vermont Mu-
tual Fire Ins. Co., 83 Vt. 161, 74 Atl.
1061.
Released to extent of injury sus-
tained. Vanderbeek v. Tierney-Con-
nelly Const. Co., 77 N. J. L. 664, 73
Atl. 480.
See, also, Revel Realty & Securi-
ties Co. V. Maxwell, 65 Misc. R. (N.
Y.) 54, 119 N. Y. Supp. 257.
Rnle in case of compensated
Borety, see Black Masonry & Con-
Btruction Co. v. National Surety Co.
(Wash. 1911), 112 Pac. 517.
Injury not test of discliarge of
surety. See Guardian's Trust Co. v.
Peabody, 195 N. Y. 544, 88 N. E. 1120,
affirming judgment 122 App. Div. 648,
107 N. Y. Supp. 515.
Failure to enforce performance of
provisions of mortgage given to se-
cure a debt held not to discharge
surety. Berman v. Elm Loan & Sav-
ings Co., 114 Md. 191, 78 Atl. 1104.
Mere laches held not to discharge
surety. City of Syracuse v. Roscoe,
66 Misc. R. (N. Y.) 317, 123 N. Y.
Supp. 403.
See §§ 128, 132, 134 herein, as to
negligence and laches.
3. Chapman v. Collins, 12 Cush.
(Mass.) 163; Walker v. Archer
128 Mich. 603, 87 N. W. 754, 8 Det.
Leg. N. 787; Coots v. Farnsworth,
61 Mich. 497, 28 N. W. 534.
Compare Swarts v. Fourth Nat.
Bank, 117 Fed. 1, 54 C. C. A. 387, in
case of payment by an insolvent
debtor.
A statement by the principal that
his obligation has been satisfied by
him will not justify reliance thereon
by a surety. Reints v. Uhlenhopp,
149 Iowa 429, 128 N. W. 400.
Where work has been accepted
and paid for in ignorance of the
fact that it was not done as provided
for In the contract, and it was de-
fective, a surety against work of
this character was held not to be
discharged. City of Newark v. New
Jersey Asphalt Co., 68 N. J. L. 458, 53
Atl. 294.
4. Crawford v. Beall, 21 Md. 208.
^ i>5
Suretyship and Guaranty.
112
not to pay it/' When the liability of the principal in a note is
discharged by payment, the liability of the surety is also extin-
guished f and the liability of the surety cannot exceed that of his
principal/ except a discharge of the principal in a bond by oper-
ation of law does not discharge the surety/
55 95. What Acts of Principal Will Discharge the Surety After
Judgment. — Whatever acts will discharge a surety before judg-
ment, while the obligation is only one of contract, will have the
same effect after judgment. Such rule is to prevent wrong and
injury and protects the surety under his just right to look to his
principal for indemnity when he is damnified by his undertaking ;
and it prevents the creditor from discharging the principal and
imposing the entire burden upon the surety without means of re-
dress/ However, there are cases to the contrary, though against
the weight of authority, which hold that after the contract has
been reduced to judgment, the equity of the surety terminates
with regard to the creditor, and the prior obligation is merged
in the new one created by law, and the surety becomes a principal
and is bound for the debt irrespective of what his principal and
creditor may do. These cases go upon the ground that such
equities cannot be shown, neither when the contract is under seal
nor when it has been reduced to judgment.^*
5. Eastman v. Plumer, 32 N. H.
238.
6. Petefish v. Watkins, 124 111.
384, 16 N. E. 248.
7. United States v. Allsburg, 4
Wall. (U. S.) 186, 18 L. Ed. 321.
8. Phillips V. Solomon, 42 Ga. 192;
Whereatt v. Ellis, 103 Wis. 348, 79
N. W. 416.
9. Illinois.— Trotter v. Strong, 63
111. 272; New York Bank Note Co. v.
Kerr, 77 111. App. 53.
Iowa. — Ames v. Maclay, 14 Iowa
281.
Louisiana. — Gustine v. Bank, 10
Rob. (La.) 412.
Maryland. — Keigler v. Savage Mfg.
Co., 12 Md. 383.
Massachusetts. — Carpenter v.
King, 9 Mete. 511.
New York. — Bangs v. Strong, 10
Paige 11, 7 Hill 520; Boughton v.
Bank, 2 Barb. Ch. 458.
Peuusjivania. — Commonwealth v.
Miller, 8 Serg. & R. 452; Talmadge
V. Burlingham, 5 Pa. St. 21; Potts v.
Nothaus, 1 Watt. & S. 155.
10. Lenox v. Prout, 3 Wheat. (U.
S.) 520, 4 L. Ed. 449; Findley v. Bank,
2 McLean 44; Lafarge v. Dillenback,
3 Denio (N. Y.) 157; Bay v. Tall-
madge, 5 Johns. Ch. (N. Y.) 305;
Pole V. Ford, 2 Chit. 125.
Purchase of property on which
judgment was a lien, not a release,
of surety. George v. Crim, 66 W. Va.
421, 66 S. E. 526.
113 Discharge of Surety. §§ 96, 97
§ 96. Legiality of Payment. — A payment may be illegal ; if
illegal, and the creditor is compelled to pay over the money re-
ceived to those who are legally entitled to it, then the surety will
not be discharged. The act of the creditor which discharges the
surety must be an act involving something inequitable at the time
it is done, and which interferes with the right of the surety. So
where the creditor has received money in pa^Txient which belongs
to other parties, and which they can and do legally claim, that is
no payment, and the surety is not discharged if the money is
reclaimed.^^
However, if a third party wishes to buy the note and makes
the principal his agent, he will be bound by his agent's acts. Thus,
if a third party gives money to the principal to buy the note for
him, but the principal pays the note, and the creditor receives it
in good faith, it is a payment, and the surety is discharged.^^
But if the money had been raised by the debtor by aid of the
indorsement of the surety, given for the express purpose of en-
abling the debtor to raise fimds to pay the secured debt, and this
fact is communicated to the creditor, then he must apply it as
the surety directed. But if the creditor is not informed of the
intention of the surety, then he can make his own application."
§ 97. Application of Payments. — The rule in regard to the ap-
plication of payments is this: (1) The debtor at the time of
payment has a right to designate the claim to which it shall apply.
(2) If the debtor fails to make the application when he has the
opportunity of so doing, the creditor may apply the payment to
any of several legal claims at his option. (3) If neither debtor nor
Right of judgment crditor as to A judgment in favor of the prin-
pnrsuit of remedies where there are cipal held to release a surety against
several judgments. Pursuit of reme- whom a prior judgment had been
dies on some judgments which are recovered. Stolze v. United States
not secured held not to release sure- Fidelity & Guarantee Co. (Mo. App.
ties on other judgments. George v. 1910), 131 S. W. 915.
Crim, 66 W. Va. 421, 66 S. E. 526. 11. Petty v. Cooke, L. R. 6 Q. B.
A judgment which has not been 789.
satisfied against the principal will 12, Eastman v. Plumer, 32 N. H.
not prevent a recovery from the 238.
surety. McPharlin v. Fidelity & De- 13. Harding v. TifEt, 75 N. Y. 461.
posit Co. of Maryland, 162 Mich. 141.
127 N. W. 307.
8
§ 97' Suretyship and Guaranty. 114:
creditor makes the application the law itself will apply the pay-
ment as justice and equity require." As to a surety, this doc-
trine applies when the principal makes the payment from funda
which are his own free from any equity in favor of the surety.
Thus, where the specific money paid to the creditor and applied
to a debt of the principal for which the surety is not bound, is
the very money for the collection and payment of which he is
surety, he is not bound by such application, and can have it ap-
plied to the debt for which he is surety.^^ Whenever justice and
equity show that the surety has rights in the application of the
money, it must he applied at his command.^® Thus, a surety on
a contract to secure a bank against loss on future overdrafts by
the principal debtor, has an interest in such principal's account,,
and is entitled to have payment applied upon the account guaran-
teed/^ The civil law will apply payments to the unsecured debts,
in preference to secured debts, except when the latter are secured
by a surety, in which case the application will be made to the
surety's relief.^* At common law the application must be made
in the interest of the creditor to the most precarious debt.^*
In some jurisdictions the rule is that the application must be
made to the most precarious security whenever the interest of
the creditor requires it, but not to the prejudice of the surety,
who may insist on an appropriation to the oldest debt, and hold
himself bound or discharged accordingly.^"
The fact that the payee of a note who is also the payee in notes
of a later date executed by the same maker does not apply a pay-
ment by the maker, who gives no direction as to its application, tO'
14. Koch V. Roth, 150 111. 212, 37 229; Marryatt v. White, 2 Starki©
N. E. 317. 101.
15. Merchants' Ins. Co. v. Herber, 19. Field v. Holland, 6 Cr. (U. S.)
68 Me. 420. 8, 3 L. Ed. 136; Stamford Bank v.
16. Hansen v. Rounsvaille, 74 111. Benedict, 15 Conn. 437; Mathews v..
238. Switzler, 46 Mo. 301; Morrison v.
17. Drake v. Sherman, 179 111. 362, Citizens' Nat. Bank, 65 N. H. 253, 20
53 N. E. 628. Atl. 300.
See, also. Crossly v. Stanley 20. Pardee v. Markle, 11 Pa. St.
112 Iowa 24, 83 N. W. 806. 555 ; Berghaus v. Alter, 9 Watts.
18. Brendenbecker v. Lowell, 32 (Pa.) 386,
Barb. (N. Y.) 23 Pattison v. Hall, 3 See, also, Crasser & Brand Brew-
Cow. (N. Y.) 747; Blackmore v. ing Co. v. Rogers, 112 Mich. 112, 70*
Granbury, 98 Tenn. 277, 39 S. W. N. W. 445.
115 Discharge of Surety. §§ 98, 99
the note first executed does not release the surety on such note
from liability.^^
§ g8. Application by Law. — In the absence of any direction
by the debtor, and the creditor has made no application of pay-
ment, then the law steps in and makes the application. The law-
will apply the payment to the oldest item of indebtedness in the
absence of any circumstance which will render such application
unjust to third parties.^^
As a general rule a debtor has a right to appropriate payments.
If he does not, the creditor may. If neither does the jury will
make the application under the direction of the court.^^ And so
where a payment has been properly applied upon a particular
note, it instantly extinguishes to the extent of that payment; and
the note being made by several, it cannot be revived against any
of the parties without the consent of all. An attempt thus to re-
vive an extinguished liability would be fraud upon the surety/*
§ 99. Note Payable to a Bank — Application of Debtor's De-
posit. — The fact that the principal debtor in a note payable to a
bank, has funds on deposit in the bank after the maturity of the
note, and before suit on the note, exceeding the sum due thereon,
and the bank does not appropriate the same to its payment, does
not discharge the surety.^^ It is at the election of the bank alone
to apply such funds to the payment of the note, and the surety
cannot complain if the deposit is not so applied.^®
21. Baumgartner v. McKinnon v. Peck, 127 Mass. 298; Houston v.
(Ga. App. 1912), 73 S. E. 518. Braden (Tex. Civ. App.), 37 S. W.
22. Frost V. Mixsell, 38 N. J. Eq. 467.
586; Toulmin v. Copland, 2 CI. & F. 26. Arkansas. — Compare Dawson
681; Mills v. Fowkes, 5 Bing. (N. C.) v. Bank, 5 Pike 283, 298.
455. Delaware. — Compare McDowell v.
23. Baumgartner v. McKinnon Bank, 1 Harr. (Del.) 369.
(Ga. App. 1912), 73 S. E. 518, citing Maryland.— Martin v. Bank, 6 Har.
Newton v. Mennally, 4 Ga. 357. & Johns. (Md.) 235.
24. Miller v. Montgomery, 31 111. New York. — Newburgh Bank v.
350. Smith, 66 N. Y. 271.
25. Voss V. Bank, 83 111. 599 ; England.— Clayton's Case, 1 Meriv.
Highland Park State Bank v. 572; Strong v. Foster, 17 C. B. 207;
Sheahen, 149 111. App. 225; Citizens' Pemberton v. Oakes, 4 Russ. 154;
Bank v. Elliott, 9 Kan. App. 797, 59 Law v. East India Co., 4 Ves. 824.
Pfc. 1102; National Machine Bank
§100 SUKETYSHIP AND GUARANTY. IIC
Of course, when the principal creditor has means of satisfac-
tion actually or potentially within his control, he must retain
them for the benefit of the surety ; but this rule does not apply to
deposits in a bank. Because without an express agreement or di-
rection, it is optional with the bank whether or not it will apply
the money thus on deposit in payment of the note."
But where money was deposited with a bank under an agree-
ment that it should be paid only to certain creditors the bank can-
not apply it to the payment of a note which is not one of the desig-
nated debts and its not so applying it does not release a surety on
the note.^*
It is held in Indiana that a bank has no right without the
depositor's consent to apply money due him as depositor to the
payment of a note held by it upon which it is liable as surety;^*
but this rule does not apply in Pennsylvania, and the bank can
apply it to the payment of such note.^"
§ 100. Change in the Principal Contract. — It is the general
rule that any agreement between the principal and the obligee or
payee essentially varying the terms of the contract, by which the
surety is bomid, without the latter's consent, will release him from
responsibility.^^ Thus, a surety for a partnership which is to con-
tinue for a specified period, is discharged if the partnership is
27. Newburgh Bank v. Smith, 66 California. — Deming v. Maas (Cal.
N. Y. 271; People's Bank V. Legrand, App. 1912), 123 Pac. 204; Barrett-
103 Pa. St. 309. Hicks Co. v. Glas, 9 Cal. App. 491, 99
28. Royse v. Winchester Bank (Ky. Pac. 8.56.
C. A. 1912), 146 S. W. 738. District of Columbia. — Catholic
29. Lamb v. Morris (Harrison v. University of America v. Morse, 32
Morrison), 118 Ind. 179, 20 N. E. 746. App. D. C. 195.
30. Lancaster First Nat. Bank v. Georgria. — Haigler v. Adams, 5 Ga.
Shreiner, 110 Pa. St. 188, 20 Atl. 718. App. 637, 63 S. E. 715.
31. United States. — McMuUen v. Illinois. — IMcCartney v. Ridgway,
United States, 167 Fed. 460, 93 C. C. 160 111. 129; Gardiner v. Harback, 21
A. 96; American Bonding Co. v. 111. 128.
Pueblo Inv. Co., 150 Fed. 17, 80 C. C. Indiana, — Wier Plow Co. v.
A. 97; United States v. Mclntyre (U. Walmsley, 110 Ind. 242; Parker Land
S. C. C), 111 Fed. 590. & Improvement Co. v. Ayers, 43 Ind.
Arkansas. — Berman v. Shelby App. 513, 87 N. E. 1062.
(Ark. 1910), 125 S. W. 124; Aetna loTva.—Bartlett & Kling v. Illinois
Indemnity Co. V. City of Little Rock, Surety Co. (Iowa 1909), 119 N. W.
89 Ark. 95, 115 S. W. 960.
1171
DiSCHAKGE OF SuEETY.
§ 100
continued for a longer time than that prescribed in the contract.'^
So where a person becomes surety for the payment of a certain
6um as alimony, a subsequent increase of the amount to be paid
'by the husband releases the surety. ^^
(And so where a person becomes a surety on a contract whereby
the principal agrees to sell goods on commission for the vendor,
which were to be shipped as ordered, and to remit cash received
on sales in accordance with tlie termfi of the contract, and subse-
quently the contract is extended so as to cover a larger quantity
729; Stillman v. Wickham, 106 Iowa
597.
Kentucky. — Speed v. Willow
Springs Distilling Co., 140 Ky. 269,
130 S. W. 1103.
Massacliusetts.— Museum of Fine
Arts V. American Bonding Co.
(Mass. 1912), 97 N. E. 633.
Michigan. — Rodgers Shoe Co. v.
Coon, 157 Mich. 547, 122 N. W. 133;
Smith V. Sheldon, 35 Mich. 42.
Minnesota. — Simonson v. Grant,
36 Minn. 439,
Missouri. — Warden v. Ryan, 37 Mo.
App. 466.
Montana. — Dodd v. Vucovich, 38
Mont. 188, 99 Pac. 296.
Nebraska. — First National Bank v.
Goodman, 55 Neb. 418.
New York. — St. John's College v.
Aetna Indemnity Co., 201 N. Y. 335,
94 N. E. 994, affirming judgment 135
App. Div. 480, 120 N. Y. Supp. 496;
McWilliams v. Mason, 31 N. Y. 294;
Wright Steam Engine Works v. Mc-
Adams, 113 App. Div. 872, 99 N. Y.
Supp. 577; Hyde v. Miller, 45 App.
Biv. 396. 60 N. Y. Supp. 974, affirmed
168 N. Y. 590, 60 N. E. 1113; Revel
Realty & Securities Co. v. Maxwell,
65 Misc. R. 54, 119 N. Y. Supp. 257.
Ohio. — Koppitz-Welchers' Brewing
Co. V, Schultz. 68 Ohio St. 407, 67
N. E. 719. Compare Richards v.
Market Exch. Nat. Bank, 81 Ohio St.
348, 90 N. E. 1000, holding that by
statute (Rev. Stat, § 3175j) the rule
is abrogated where cne signs on face
of instrument. Jones v. Boyd, 40
Ohio St. 139.
Pennsjivania. — Young v. Ameri-
can Bonding Co. of Baltimore, 228
Pa. St. 373, 77 Atl. 623; Whilen v.
Boyd, 114 Pa. St. 22f ; Bauschare Co.
V. Fidelity & Casualty Co. of New
York, 21 Pa. Super. Ct. 370.
Texas.— Hamblen v. Knight, 60
Tex. 36; Dearing v. Jordan (Civ.
App. 1910), 130 S. W. 876; Zang v.
Hubbard Building & Realty Co. (Civ.
App. 1910), 125 S. W. 85; Kempner
v. Patrick (Civ. App. 1906), 95 S. W.
51.
Virginia. — Batchelder v. White, 80
Va. 103.
Washington.— Fransioli v. Thomp-
son (Wash. 1909), 104 Pac. 278.
Wisconsin.— Sage v. Strong, 40
Wis. 575.
Changing building contract, see §§
112a, 112b, 112c, herein.
Removal of business to another
town does not release surety to con-
tract for sale of goods to firm.
Rouss V. King, 74 S. C, 251, 54 S. E.
615.
82. Small v. Currie, 5 DeG. M. & G.
141.
33. Sage v. Strong, 40 Wis, 575.
§ 101 SUKETYSIIIP AND GuAKANTY. 118
of goods which the principal had previously purchased from the
vendor — he is released from his liability as surety.^*
In general, if the principal does any act or makes any agree-
ment for a valuable consideration without the consent of the
surety, express or implied, and which tends to his injury, or which
suspends the right to coerce payments to the prejudice of the
surety, or which shall put the surety in a worse condition or in-
crease his risk or impair the ultimate liability over of the prin-
cipal to him, the surety will be discharged f^ because he cannot be
made liable for any default in the performance of a contract
which he had not guaranteed.^^
The test in determining whether or not there has been a ma-
terial alteration of the instrument is: Has the change or addi-
tion injuriously affected the complaining parties, or could the
change, under any possible circumstances, enlarge the burdens al-
ready assumed by them ? "
§ loi. When the Surety is not Discharged by Change of Con-
tract. — Some changes or qualifications of the original contract
have no detrimental effect upon the surety's rights, and he is not
djischarged. Thus, a surety is not discharged by a contract be-
tween his principal and their common dbligee which does not
place the surety in a different position from that which he occu-
pied before the contract was made.^^ And so a surety cannot com-
plain of the reduction of the rent reserved in a lease for the pay-
ment of which he is liable, though made without his knowledge ;
84. Wier Plow Co. v. Walmsley, Arkansas. — Marree v. Ingle, 69
110 Ind. 242, 11 N. E. 232. Ark. 126, 61 S. W. 369.
.35. Boynton v. Phelps, 52 111. 210. Maryland.— Aetna Indemnity Co.
36. Taylor v. Bank, 11 App. Cas. v. Waters, 110 Md. 673, 73 Atl. 712.
596. Minnesota.— Fergus Palls v. lUi-
87. Holthouse v. State (Ind. App. nois Surety Co. (Minn. 1910), 128 N.
1912), 97 N. E. 130. W. 820.
38. Roach v. Summers, 20 Wall. (U. Missouri. — Boppart v. Illinois
S.) 165, 22 L. Ed. 252; Whigham v. Surety Co., 140 Mo. App. 675, 126 S.
Hall & Co., 8 Ga. App. 509, 70 S. E. W. 768; Fairbanks Co. v. American
23; Travelers Ins. Co. v. Stiles, 82 Bonding & Trust Co., 97 Mo. App.
App. Div. (N. Y.) 441, 81 N. Y. Supp. 205, 70 S. W. 1096; Fullerton Lum-
664; Stuts v. Strayer, 60 Ohio St. ber Co. v. Gates, 89 Mo. App. 201.
284, 54 N. E. 368. Washin^on. — Fransioli v. Thomp-
Slight and immaterial variations son (Wash. 1909), 104 Pac. 278.
will not discharge a surety.
119 DiSCHAKGE OF SURETY. § 101
it will not release him from his obligation any more than if the
amount of such reduction had been indorsed as a payment upon
the lease. Therefore, a reduction fi'om seventy-five dollars a
month rent to fifty dollars will not release the surety.^^ Like-
wise, sureties upon a bond with the condition that the principal
shall pay for all purchases made by him from the obligee, are not
discharged from liability by the obligee's taking the note of the
principal for purchases made by him/*^ And where a surety com-
pany enters into a contract of suretyship with a landowner to se-
cure to him the payment of damages resulting from the taking of
his land by a railroad under right of eminent domain, the con-
tract stipulating that the surety company would pay him, if the
railroad did not, the amount of damages to which he might be en-
titled in consequence of the location and construction of the rail-
road, after said amount had been agreed upon by him and the
railroad company, or assessed under the provisions of the statute,
there is no material departure from the bond and the surety com-
pany is liable thereunder where an agreement is entered into be-
tween the landowner and the railroad company fixing " the value
of the land and the damages to the property by reason of the lo-
cation and construction of the railroad through it " at a fixed sum,
and providing for the conveyance of the land to the railroad com-
pany in fee/^
A surety also will not be released by a change in the contract
or mode of performance which is permissible under the terms of
the obligation as in such a case the surety will ibe regarded as
having consented thereto.^^
89. Preston v. Huntington, 67 Arkansas. — Marree v. Ingle, 69
Mich. 139, 34 N. W. 279. Ark. 126, 61 S. W. 369.
See Ullman Realty Co. v. Hollan- Indiana.— Hedrick v. Robbins, 30
der, 66 Misc. R. (N. Y.) 348, 123 N. Ind. App. 595, 66 N. E. 704.
Y. Supp. 772. Iowa.— Bartlett v. Illinois Surety
See, also, § 111 herein. Co. (Iowa 1909), 119 N. W. 729.
40. Parham Sewing Mach. Co. v. Kentucky. — Illinois Surety Co. t.
Brock, 113 Mass 194. Garrard Hotel Co. (Ky. 1909), 118 S.
41. Brown v. Title Guaranty & W. 967.
Surety Co., 232 Pa. St. 337, 81 Atl. Minnesota.— Fergus Falls v. Illi-
410. nois Surety Co. (Minn. 1910), 128
42. United States.— McMuUen v. N. W. 820.
United States, 167 Fed. 460, 93 C. C. Missonri.— Utter&on v. Elmore
A. 96. (Mo. App. 1911), 136 S. W. 9; Reis-
§ 102 Suretyship and Guaranty. 120
§ 102. Alteration of the Instrument. — Upon the question of
the alteration of the instrument, there is a conflict of authority,
and two distinct lines of decisions: (1) The earlier ruling of
the courts seems to hold that any alteration of a contract, how-
ever immaterial, after its execution in the absence of the other
party, avoided it.''^ (a) Because the alteration must affect the
question of the identity of the instrument, (b) Because such an
unauthorized act of a party having the custody of a deed should
be construed most strongly against himself, and if legalized might
facilitate injury and irremediable fraud/'* (2) The other line
of cases holds that a mere alteration of an instrument, without
affecting the legality of the contract or any of the parties thereto,
does not render it invalid ; that the question must be settled upon
the ground of justice and common sense, and not upon technical
quibbling, by which it has been held that sureties have been dis-
charged/*
So under the old rule any change in the contract made without
the surety's consent discharged him, though such change is for his
benefit/^ So it is not sufficient to uphold the contract after its
alteration, however slight, and even if the change inures to the
surety's benefit/^ This is the common law rule. But the weight
Bans V. Whites, 128 Mo. App. 135, 106 44. Johnson v. Bank, 2 B. Mon.
S. W. 603; Barnes' Estate v. Fidelity (Ky.) 311.
& Deposit Co., 96 Mo. App. 467, 70 45. United States.— Smith v. United
S. W. 518; Fullerton Lumber Co. v. States, 2 Wall. (U. S.) 219, 17 L. Ed.
Gates, 89 Mo. App. 201. 788.
New York. — Travelers Ins. Co. v. Illinois. — Ganey v. Hohlman, 145
Stiles, 82 App. Div. 441, 81 N. Y. 111. App. 467.
Supp. 664. Maryland. — Wehr v. German Con-
Oregon. — Enterprise Hotel Co. v. gregation, 47 Md. 177.
Hook, 48 Ore. 58, 85 Pac. 333. Massachnsetts.— Bank v. Hyde,
Washington. — Keenan v. Empire 131 Mass. 77.
State Surety Co., 62 Wash. 250, 113 Pennsylvania. — Kaufmann v.
Pac. 636. Rowan, 189 Pa. St. 121, 42 Atl. 25.
Failure to sign changes which 46. Dey v. Martin, 78 Va. 1; Chris-
have been endorsed as required by tian v. Keen, 80 Va. 369.
the contract does not discharge the 47. Miller v. Stewart, 9 Wheat. (U.
sureties. Illinois Surety Co. v. S.) 681, 6 L. Ed. 189; Reese v. United
Ganard Hotel Co. (Ky. 1909), 118 States, 9 Wall. (U. S.) 13, 19 L.
S. W. 967. Ed. 541; United States Glass Co.
43. Pigofs Case, 11 Coke 27. v. Bottle Co., 89 Fed. 993; State ex
rel. Jackson County v. Chick, 146
121 Discharge of Surety. § lOS
of authority is that any alteration which does not destroy the
identity of the written contract, nor in any manner affect the lia-
bility of the surety, is not such an alteration as will release the
surety/^
The mere fact of the erasure of the name of one of the sure-
ties will not put the payee upon notice that such erasure had been
made without the consent of the other sureties and release them
from liability/^
§ 103. Material Alteration of Instrument. — It is now the rule
in both England and in the United States that a material altera-
tion without the consent of the parties sought to be charged, ex-
tinguishes their liability.^*^ A surety is bound in the manner
and to the extent provided in the obligation executed by him,
and no further. He may stand upon its terms and any material
alteration of the instrument without his consent discharges him.^^
Thus, where a building is being erected for a party who is to
pay in installments as the building progresses toward completion,
and an installment is paid in advance to the contractor, who is
under a bond, such payment in advance discharges the sureties
on the bond.^^ Because in such case the surety may be deprived
Mo. 645, 48 S. W. 829; Britton v. Minnesota. — Simonson v. Grant, 36
Diessher, 46 Mo. 592; Owings v. Ar- Minn. 439, 31 N. W. 861; Tomlinson
not, 33 Mo. 406; Handley v. Barrows, v. Simpson, 33 Minn. 443, 23 N. W.
€8 Mo. App. 623; Stephens v. Gra- 864.
ham, 7 S«rg. & R. (Pa.) 505. Missouri.— Kincaid v. Yates, 63
48. Buckles v. Huff. 53 Ind. 474; Mo. 45.
Wehr V. German Congregation, 47 New York. — Berkhead v. Brown,
Md. 177; Bank v. Hyde, 131 Mass. 5 Hill (N. Y.) 34.
77; Kaufmann v. Rowan, 189 Pa. St. North Dakota. — Cass County v.
121, 42 Atl. 25. American Exch. State Bank, 11 N,
49. Hess V. Schaffner (Tex. Civ. D. 238, 91 N. W. 59.
App. 1911), 139 S. W. 1024. Ohio.— People's Ins. Co. v. McDow-
50. Wood V. Steele, 6 Wall. (U. S.) nell, 41 Ohio St. 650.
80, 18 L. Ed. 725; State V. Welbes, 12 Pennsylyania.— Whelen v. Boyd,.
S. D. 339, 81 N. W. 629. 114 Pa. St. 228, 6 Atl. 384.
51. Illinois. — Newlan v. Harring- Texas. — Ryan v. Morton, 65 Tex.
ton, 24 111. 206. 258.
Indiana.— Huff v. Cole, 45 Ind. 52. Simonson v. Grant, 36 Minn.
300. 439, 31 N. W. 861.
Massachnsetts. — Draper v. Wood, See § 67.
112 Mass. 315.
§ 104 Suretyship and Guaranty. 122'
of the inducement which his principal would have to perform
the contract in due time as is stipulated in the instrument, and
thereby make the surety liable in damages for delay in complet-
ing the work on time.^^ If the surety agrees to the modification
of the contract he is still bound.^^ But where he does not agree
to the alteration he is discharged. Thus, where several sureties
execute a joint and several bond, limiting their liability in ex-
press terms, and then another surety as agreed executes it, but
makes a material alteration as to his liability which appears on
the face of the bond, and the obligee accepts it without objection,
the first sureties are discharged from their obligation, and the
latter surety, having executed as a joint and several bond, is also
discharged.^^
§ 104. Commercial Instruments. — Upon the ground of public
policy very slight alterations of negotiable paper are held to be
material, and any change of date, or amount, or rate of interest,
or place of payment, is held to discharge the parties to the in-
strument, without knowledge of, or consent to, such change, upon
the ground that they are material alterations.^® Commercial in-
struments of the class which pass from hand to hand are, on the
ground of public policy, most zealously protected from spolia-
tion. But it has been held that the addition of a signature of a
surety to a promissory note, in the form of a joint promisor^
without the consent of the maker, does not discharge him. Bie-
cause neither the liability of the maker of the note, nor the effect
of a mortgage given to secure it, was materially altered by the
added signature. ^^ And if the alteration in no way affects the
bond, though made without the surety's knowledge, it will not
discharge him.^^ Thus, where there is an independent collateral
53. Leeds v. Dunn, 10 N. Y. 469; 55. Jordan v. Walters (Iowa), 80
General Steam Nav. Co. v. Rolt, 6 N. W. 530.
C. B. (N. S.) 55; Calvert v. Dock 56. Wood v. Steele, 6 Wall. (U. S.)
Co., 2 Keen 638. 80, 18 L. Ed. 725.
54. Ellesmere Brewing Co. v. 57. Mersman v. Werges, 112 U. S.
Cooper (1896), 1 Q. B. 75. In this 139, 5 S. Ct. 65, 28 L. Ed. 641.
case the surety executing last signed See § 110.
his name, after which he stated the 58. United States Glass Co. v.
amount of his liability, which was Mathews, 89 Fed. 828.
not the amount agreed upon at first.
123 Discharge of Surety. §§ 105, 106
agreement between the principal and obligee, making more definite
one of the clauses of the instrument, but not in any way chang-
ing or altering the instrument, and it does not touch any of the
provisions of the performance of which the surety has guaranteed,
it is not sufficient to discharge him; because such an agreement
makes no variation in the obligation or liability of the surety, and
does not concern him, and leaves the original agreement intact.^
And so an alteration of a note before delivery to make it con-
form to the intention of the parties, does not release the surety
thereon, though made without his knowledge.^
§ 105. Change of Date. — The alteration in the date of the
instrument discharges the surety. Thus, an alteration in the date
of a note so as to make it fall due one year later, is a material
alteration as to the surety.*^ So the change of the time of pay-
ment of a note from *' one day " to " one year " after date, is such
alteration as will discharge the surety.^^ But where the date is
changed merely to correct a mistake and make the note such as
both parties intended it to be, will not avoid the note in the hands
of the indorsee.^
§ 106. Alteration of Amount. — If the amount of a note is
•changed after delivery, the surety will be discharged." So the
alteration of an official bond decreasing the penalty after it is
signed, without the obligors' consent, will relieve them of lia-
bility;*^ so an increase of the penalty will discharge the surety.®*
And when a surety on a note, complete in all its parts, permits
his principal to take it to a bank to be discounted, who alters it
to a large amount and then has it discounted, the surety is not
59. Smith v. United States, 2 Wall. 62. Stayner v. Joice, 82 Ind. 35.
(U. S.) 219, 17 L. Ed. 788; Wehr v. 63. Ames v. Colburn, 11 Gray
German Congregation, 47 Md. 177; (Mass.) 390.
Bank v. Hyde, 131 Mass. 77. 64. Portage County Bank v. Lane,
60. Mattingly v. Riley, 20 Ky. Law 8 Ohio St. 405.
R«p. 1621, 49 S. W. 799. 65. State ex rel. Jackson County v.
61. Wyman v. Yeomans, 84 111. Chick, 146 Mo. 645. 48 S. W. 829;
403; Miller v. Gilliland, 19 Pa. St. Doane v. Eldridge, 16 Gray (Mass.)
119; Stephens v. Graham, 7 Serg. & 254.
R. (Pa.) 505. 66. Dover v. Robinson, 64 Me. 183.
§§ 107-109 Stjeettship and Guaranty. 124
liable for the larger amount." But the rule would be different
if the surety had shown negligence in filling out the note.
§ 107. Alteration of the Rate of Interest. — A change of the
rate of interest in a note is a material alteration. And such al-
teration by the principal with the consent of the holder, but with-
out the consent of the surety, discharges the surety, although
without fraudulent intention.*^^ The rule is the same, if the rate
of interest is decreascd.'^^
So the alteration of a note by the addition of the words " with
interest" avoids the note as to the surety or joint promisor who
did not consent thereto.^*^
§ 108. Changing the Place of Payment. — If there is an altera-
tion of the note by changing the place of payment without the con-
sent of the surety, it will discharge him.''^ It is the duty of the
maker to seek the payee at the place designated, and the surety
must see that the debt is paid, but if the place of payment is
changed without his consent, his duties are thereby increased, and
it will require a greater effort to find the payee.^^
§ 109. Destroying the Identity of the Contract. — By destroy-
ing the identity of the contract, the surety is released. Hence, a
material alteration of a note made by one of the promisors before
its delivery, and without the knowledge of the other promisor, dis-
charges the latter.''^ So the addition of " gold " to a promissory
67. Agawam Bank v. Sears, 4 Gray 69. Post v. Losey, 111 Ind. 74, 12
(Mass.) 95. N. E. 121; Whitmer v. Frye, 10 Mo.
68. United States.— Wood v. Steele, 348.
6 Wall. 80, 18 L. Ed. 725. 70. Fay v. Smith, 1 Allen 477;
Indiana. — Hart v. Clouser, 30 Ind. Waterman v. Vose, 43 Me. 504.
210. 71. Pahlman v. Taylor, 75 111. 629;
Iowa. — Marsh v. Griffin, 42 Iowa Townsend v. Star Wagon Co., 10
403. Neb. 615, 7 N. W. 274; Nazro v. Ful-
Kentucky.— White V. Shepherd, 140 ler, 24 Wend. (N. Y.) 374; Wood-
Ky. 349, 131 S. W. 17. worth v. Bank, 19 Johns. (N. Y.)
Ohio. — Jones v. Bangs, 40 Ohio St. 420; Southwick Bank v. Grosse, 35
139; Harsh v. Klepper, 28 Ohio St. Pa. St. 82.
200; Boalt v. Brown, 13 Ohio St. 364. 72. Woodworth v. Bank, 19 Johns.
Pennsylyania,— Neff v. Horner, 63 (N. Y.) 420.
Pa. St. 327. 73. Draper v. Wood, 112 Mass. 315..
125 DiSCHAEGE OF SuKETY. § 11<^
note payable in dollars, bj the principal before delivery, without
the consent of the surety, discharges the latter.''* And any writ-
ing upon a note which seeks to make a guarantor a surety is ma-
terial and releases the guarantor^'' So where the payee of a note
writes his own name under the maker's, and adds after his name
*' security," it avoids the note.^^ So inserting the words " or
order " in a non-negotiable note is a material alteration and ren-
ders it void." And the same is true where a qualified guarantee
is made into an absolute guarantee.^^ So changing the payee in
a note signed by a surety, discharges the surety.^^
§ no. Addition of Surety to a Note. — Some courts hold,
against the weight of authority, that where a promissory note is
fully executed by the principal and surety and delivered to the
payee, and thereafter, without the consent of the surety, the name
of another surety is added thereto, as an additional surety, the
first surety is discharged.^^* But the better rule is that the addi-
tion of a surety on a promissory note without the consent of the
maker or prior surety, does not discharge either of them.^° Be-
cause the signature added, although in the form of that of joint
promisor, is in fact that of a surety or guarantor only, and the
original maker is, as between himself and the surety, exclusively
liable for the whole debt, and his ultimate liability to pay that
amount is not increased nor diminished, and according to the
general current of the American authorities, the addition of a
74. Hanson V. Crowley, 41 Ga. 303; Iowa. — Berreyman v. Manker, 56
Church V. Howard, 17 Hun (N. Y.) Iowa 150, 9 N. W. 103; Hamilton v.
5; Bogarth -vi Breedlove, 39 Tex. Hooper, 46 Iowa 515; Dickerman v.
561. Miner, 43 Iowa 508.
75. Robinson v. Reid, 46 Iowa 219. Kentucky. — Shipp v. Suggett, 9 B.
76. Chappell v. Spencer, 23 Barb. Mon. 5, 8. See Rumley Co. v. Wil-
(N. Y.) 584. Cher, 23 Ky. Law Rep. 1745, 66 S. W.
77. Haines v, Dennett, 11 N. H. 17, 23.
180. Maine. — Chadwick v. Eastman, 53
78. Newlan v. Harrington, 24 111. Me. 12.
206. Ohio.— Wallace v. Jewell, 21 Ohio
79. Bell V. Mahlin, 69 Iowa 408, 29 St. 163.
N. W. 331. England.— Gardner v. Walsh, 5 El.
79a. Indiana.— Henry v. Coats, 17 & Bl. 82.
Ind. 162. See Crandall v. First Na- 80. Mersman v. Werges, 112 U. S.
tional Bank of Auburn, 61 Ind. 349. 139, 5 S. Ct. 65, 28 L. Ed. 641.
§ 110 Suretyship and Guabanty. 126^
name of a surety, whether before or after the first negotiation of
the note, is not such an alteration as discharges the maker or the
prior surety.*^
The English cases afford no sufficient ground for a different
doctrine. In a decision at law it was held that the signing of a
note by an additional surety without the consent of the original
makers prevented the maintenance of an action on the note against
them.*^ But in an earlier decision of equal weight, it was held
that in such a case the addition did not avoid the note nor prevent
the original surety on paying the note from recovering of the
principal maker the amount.^^ And in a later case, the Court of
Chancery, upon an appeal in bankruptcy, decided that the addi-
tion of a surety was not a material alteration of the original con-
tract.^^
So, according to the latter rule, a mortgage executed by hus-
band and wife on her land, for the accommodation of a partner-
ship in which the husband is a member, and as security for the
payment of a negotiable promissory note for the same purpose^
and to which note the partner, before negotiating it, added thfr
wife's name as a maker, with the consent or knowledge of her-
self or her husband, is not thereby avoided as against a party who,
in ignorance of the note having been so altered, lends money to
the partnership upon the security of the note and mortgage.**
In Nebraska if other sureties sign a bond after it has been de-
livered, the prior sureties will be released and the latter held for
subsequent default.*®
81. Oklahoma. — Montgomery Rail- alteration of the bond. Holthous©
road V. Hurst, 9 Ala. 513. v. State (Ind. App. 1912), 97 N. B_
Massachusetts. — Stone v. White, 8 130.
Gray 589. 82. Gardner v. Walsh, 5 El. & BL
Michigan.— Miller v. Finley, 26 83.
Mich. 249. 83. Cotton v. Simpson, 8 Ad. &
New York. — Brownell v. Winnie, El. 136, 3 Nev. & Per. 248.
29 N. Y. 400; McCaughey v. Smith, 84. Ex parte Yates, 2 DeG. & J,
27 N. Y. 39. 191.
England. — See, also. Aldous v. 85. Mersman v. Werges, 112 U. S.
Cornwell, L. R. 3 Q. B. 573. 139, 5 S. Ct. 65, 28 L. Ed. 641.
The signing of an additional name 86. Stoner v. Keith County, iS
fo a bond as a surety for all persons Neb. 279, 67 N. W. 311. Compare
vho at that time had executed the State v. Paxton, 65 Neb. 110, 90 N.
same does not constitute a material W. 983.
127
Discharge of Surety.
§ 111
§ III. Changing the Covenants of a Lease Signed by Surety. —
If the lessor and lessee change the covenants in a lease, without
the surety's knowledge, he is discharged."
And where the parties to the lease make a new contract, with-
out the consent of the lessee's surety, the surety is discharged, as
where the lease is surrendered for a consideration.** But where
the lessee agreed to put certain machinery and stock in a leased
building to be security for the rent the surety on his bond to
secure performance of the terms of the lease was not released by
the fact that the property which the tenant put in the building
was subject to an express or statutory lien or whether certain parts
of it were released upon the claim of a third party thereto.*^ And
a surety cannot complain if the rent is reduced without his knowl-
edge, as such reduction is equivalent to payment of the amount
reduced.^" And the assignment of a lease by the lessee does not
discharge either the lessee or his surety from the covenants, and
it does not have this effect even when the lessor recognizes the
assignment by accepting rent from the assignee.^^
87. Ziegler v. Hallahan, 126 Fed..
788; Berman v. Shelby, 93 Ark. 472,
125 S. W. 124; White v. Walker, 31
111. 422; Grant v. Smith, 46 N. Y. 95;
City of New York v. Clark, 84 App.
Div. (N. Y.) 383, 82 N. Y. Supp. 855;
Revel Realty & Securities Co. v.
Maxwell, 65 Misc. R. (N. Y.) 54, 119
N. Y. Supp. 257.
Where the terms of a lease bind
the landlord to put a water heater
In the bath room, and bind the ten-
ant to pay rent upon a failure of the
landlord to supply the water heater,
the tenant may refuse to pay rent
and vacate the premises, and the
surety on a bond to secure the pay-
ment of the rent is released. Ber-
man V. Shelby, 93 Ark. 472, 125 S.
W. 124.
Burden of proof. To entitle a
landlord to recover on a note signed
by the tenant and others as sureties
it is incumbent on him to show a de-
fault or failure on the part of
the tenants to comply with the
terms of the lease. Revel Realty &
Securities Co. v. Maxwell, 115 N. Y.
Supp. 1033.
Assent to modification of lease
held not to discharge surety. Den-
ing V. Maas (Cal. App. 1912), 123
Pac. 204.
88. Hotel Milton Co. v. Powell
(Mo. App. 1910), 123 S. W. 953;
Nichols V. Palmer, 48 Wis. 110, 4 S.
W. 137.
89. Marsh v. Phillips (Tex. Civ.
App. 1912), 144 S. W. 1160.
90. Preston v. Huntington, 67
Mich. 139, 34 N. W. 279; Dodd v.
Vucovich, 38 Mont. 188, 99 Pac. 296;
Ullman Realty Co. v. Hollander, 66
Misc. R. (N. Y.) 348, 123 N. Y. Sunp.
772.
91. Illinois.— Grommes v. St. Paul
Trust Co., 147 111. 634, 35 N. E. 820;
Farnham v. Monroe, 35 111. App. 114 r
Dietz V. Schmidt, 27 III. App. 115.
§ 111 SUEETYSHIP AND GUAEANTY. 128
But the surety of a lessee who covenants to pay the rent to
the lessors on the lessee's default is held not to be liable for the
default of a corporation to which the lessee assigned the lease
before it went into effect without any reservation as to himself
or the lessors who recognized the corporation as the tenant under
the lease.^^
If the lessor takes back part of the land and reduces the rent on
the remainder, this will release the surety.^^ As a general rule
when the sureties' rights are in no way affected, they will not
be discharged from the covenants in the lease.®*
The surrender of leased premises by the lessee will not release
Massachusetts. — Way v. Reed, 6 tenants to occupy premises after
Allen 364. breach by lessee does not discharge
New Jersey. — Hunt v. Gardner, 39 surety. Dodd v. Vucovich, 38 Mont.
N. J. L. 530. 188, 99 Pac. 296.
New York. — Damb v. Hoffman, 3 Re-entry and reletting by land-
E. D. Smith 361; Vescheiser v. New- lord and alteration of premises by
man, 135 N. Y. Supp. 671; Flank v. him does not release surety, the
Kuhlmann, 63 Misc. R. 334, 117 N. Y. lease permitting him to re-enter and
Supp. 110. relet and to apply rent received in
Rhode Island. — Olney v. Greene, reduction and satisfaction of what
13 R. I. 350. may be due from lessee. Mulert v.
Where summary proceedings ter- Real Estate Trust Co. of Pittsburg,
minate principal tenancy and a sub- 226 Pa. St. 602, 75 Atl. 848.
tenant is only liable for use and oc- Persons who executed a bond to
cupation under the Code, held to a college, guaranteeing the payment
release surety. Ranier v. Smith, 65 of such sums as shall become due
Misc. R. (N. Y.) 560, 120 N. Y. Supp. from a certain student " for the rent
993. of any room which may be assigned
92. Murphy v. Ottman, 127 App. to him in accordance with his appli-
Div. (N. Y.) 563, 111 N. Y. Supp. 912, cation before he becomes a student
holding this to be true, although the in the university," are liable on the
surety covenanted that he was bound undertaking, although their prin-
to the assigns of the lessors and cipal having engaged a room for the
the lease provided that the lessee last year of his course, did not re-
might assign to a corporation if, in turn to college and use the same, if
fact, the surety guaranteed only the college authorities in order to
against the default of the original reduce the damage have used rea-
lessee. sonable effort to rent the room to
93. Penn v. Collins, 5 Rob. (La.) other persons without success.
•213. President & Fellows of Harvard Col-
94. Morgan v. Smith, 70 N. Y. 537. lege v. Kempner, 131 App. Div. (N.
Act of landlord in permitting other Y.) 848, 116 N. Y. Supp. 437.
129" Discharge of Surety. § 112
a surety from such rent as has become due, but only for rent
which has not fully accrued.®"'
^ 112. Building Contracts. — The doctrine that the liability of
a surety is strictisaihii juris means that a surety shall not be held
beyond the precise terms of his contract, and not that a different
rule must be applied in the construction of contracts of surety-
ship, than that which is to be applied in the construction of con-
tracts in general. The rule that the contract should not be ex-
tended by implication applies in the case of bonds given to secure
performance of building contracts. So where a builder's con-
tract obligated the builder to provide all material and perform all
Avork for a cottage of six rooms, complete as shown in the draw-
ings and described in the specifications of the architect, and the
bond signed by two sureties recited that the builder has con-
tracted '' to furnish all material and labor to complete all the
work as called for in the plans and specifications for the comple-
tion of a one-story frame cottage," but the specifications called
for the erection of a barn also, the sureties were not bound for
the construction of the barn.®"
A bond executed by a contractor to secure the performance of
a contract entered into for the construction of a building, and to
pay debts incurred in the prosecution of the work, inures to the
benefit of one furnishing labor and material in the construction
of such building. The construction contract being a part of the
bond, and it being provided therein that changes can be made
in the plan and specifications of the building in the manner therein
stated, the sureties thereby consented in advance to any departure
from the original plans which were in the strict construction of
the contract.®^ And in such agreement there are two contracts
with one consideration to support both: (1) That the building
shall be erected according to specifications; (2) that the employees
of the contractor shall be paid. Hence, if the owner of the build-
ing makes a change in the contract as to the erection, that has
no eifect as to the employees of the contractor, as to them the
95. American Bonding Co. v. 96. IMiller v. Friedheim. 82 Ark.
Pueblo Ins. Co., 150 Fed. 17, 80 C. C. 592, 102 S. W. 372.
A, 97. 97. Smith v. Molleson, 148 N. Y.
241, 42 N. E. 669.
9
§ 112 SUEETYSUIP AND GUARANTY. 130
sureties are not discliarged.^^ The bond being conditioned not
only to protect the owner of the proposed building, but the ma-
terial men and employees, the latter can sue on the bond for ma-
terial furnished and labor performed.^'*
Jn many States a third person, such as sub-contractors, labor-
ers and material men, may maintain an action upon a bond given
by a contractor to the State, county, city, or school district, con-
ditioned for the faithful performance of a contract for a public
improvement for the payment of all claims of such third persons,
though not expressed in the bond, and a change in the contract
vi^ith the principal does not discharge the sureties as to the vested
rights of such third parties.^
So a surety on a bond cannot be released from the original
contract by a change in the agreement between the contractor and
the owner of the building, and an action on the bond can be main-
tained against him by a material man for an unpaid amount due
him on account of material furnished to the contractor.^ Because
98. Doll V. Crume, 41 Neb. 655, 59 & Surety Co., 40 Misc. R. 530, 82 N.
N. W. 806; Lyman v. City of Lincoln, Y. Supp. 944.
38 Neb. 794, 57 N. W. 531. When surety not liable, see Green-
99. School Dist. of Kansas City ex field Lumber & Ice Co. v. Parker,
rel. Koken Iron Works v. Livers, 159 Ind. 571, 65 N. E. 747; Lake
147 Mo. 580, 49 S. W. 507. Charles Planing Mill Co. v. Grand
When surety liable for materials Lodge, 127 La. 238, 53 So. 550.
and labor and liens therefor, see: 1. Iowa. — Baker v. Bryan, 64 Iowa
California. — Alcatraz Masonic Hall 562.
Ass'n V. United States Fidelity & Michigan.— Knapp v. Swaney, 56
Guaranty Co., 3 Cal. App. 338, 85 Mich. 345, 23 N. W. 162.
Pac. 156. Missouri. — Devers v. Howard, 144
Colorado.— Covey v. Schiesswohl, Mo. 671, 46 S. W. 625; St. Louis, City
50 Colo. 68, 114 Pac. 292; Ripley of, to Use of Glencoe Lime & Cement
Building Co. v. Coors, 37 Colo. 78, 84 Co. v. Von Phul, 133 Mo. 561, 34 S.
Pac. 817. W. 843.
Kentucky. — Mayes v. Lane, 25 Ky. Nebraska. — Kauffman v. Cooper,
Law Rep. 824, 76 S. W. 399. 46 Neb. 644, 65 N. W. 796; Korsmeyer
Massachusetts. — Sampson Co. v. Plumbing & Heating Co. v. McCay, 43
Commonwealth, 208 Mass. 372, 94 N. Neb. 649, 62 N. W. 50; Sample v.
E. 473. Hale, 34 Neb. 220, 51 N. W. 837.
Michigan. — Stoddard v. Hibbler, New York. — Mechanics & Traders'
156 Mich. 335, 120 N. W. 787. Nat. Bank v. Winant, 123 N. Y. 265,
^ New York. — Degnon-McLean 25 N. E. 262.
Const. Co v. City Trust, Safe Deposit 2. Dewey v. McCollum, 91 Ind. 173;
Freeman v. Berkey, 45 Minn. 438, 48
131 Discharge of Surety. § 112a
the duties of the sureties in such cases of third parties are en-
tirely independent of the owner's rights, and when the third
party's rights are fixed they can be destroyed only by his own acts,
and not by the acts of the principal debtor or contractor.^
Nor is the surety released by the fact that the contract which
the bond was given to secure was not entered into in compliance
with statutory provisions in regard thereto;^ nor that the bond
was not filed in accordance with statute f nor by changes made in
constructing a public building in pursuance of directions of a
committee whose order of appointment provided that it should
have no power to make changes f nor by an illegal agreement be-
tween the official in charge of a public improvement and the con-
tractor in regard to sharing the profits on such contract.^ And
where there was an intention^ on the part of the sureties to be
bound by the bond signed by them, their liability is held not to
be affected by the fact that it was not signed by the contractor,
it appearing by the terms of such instrument that the liability im-
posed upon the contractor thereby differed in no respect from that
imposed by the terms of his contract.*
§ 112a. Building Contracts — Surety Released by Change of. —
The surety for the performance of a building contract is released
by any material change in or departure from such contract where
N. W. 194; Abbott v. Morressette, 46 to the fact that it was not entered
Minn. 10, 48 N. W. 416; Sepp v. Mc- into in compliance with statute, has
Cann, 47 Minn. 364, 50 N. W. 246; been held to be no defense to an
School Dist. of Kansas City ex rel. action against the surety on a bond
Koken Iron Works v. Livers, 147 given in connection therewith.
Mo. 580, 49 S. W. 507; Henricus v. Kansas City Hydraulic Press Brick
Engbert, 137 N. Y. 488, 33 N. E. 550. Co. v. National Surety Co. (U. S. C.
3. Conn v. State ex rel. Stutsman, C), 149 Fed. 507.
125 Ind. 513, 25 N. E. 443; Doll v. 5. People's Lumber Co. v. Gillard,
Crume, 41 Neb. 655, 59 N. W. 806; 136 Cal. 55, 68 Pac. 576.
Henricus v. Engbert, 137 N. Y. 488, 6. Allen County v. United States
33 N. E. 550; Wilson v. Webber, 92 Fidelity & Guaranty Co., 29 Ky,
Hun 466, 36 N. Y. Supp. 550, 157 N. Law Rep. 356, 93 S. W. 44.
Y. 693, 51 N. E. 1094. 7. Fergus Falls v. Illinois Surety
4. People's Lumber Co. v. Gillard, Co., 112 Minn. 462, 128 N. W. 820.
136 Cal. 55, 68 Pac. 576. 8. Wright v. Jones (Tex. Civ.
The invalidity of a contract be- App. 1909), 120 S. W. 1139,
tween a city and a contractor owing
§ 112a
Suretyship and GuAKuiNTY.
132
made without his consent.^ So a provision in the bond of a
surety company that notice shall be given of any " changes or al-
terations in the contract or plans and specifications " has been
construed as not imposing upon the obligees the duty to give no-
tice where the alterations were not material to the risk.-'''
In case of a departure from a building contract which is not
merely a permissive one but a departure made in conformity to
one or more subsequent express or implied agreements it is said
that the question of the liability of a surety on the bond turns
upon whether or not the identity of his contract has been de-
stroyed by the principal parties adding to or deducting therefrom
one or more new terms or stipulations without his consent; and
that it is wholly immaterial whether his risk has been increased
or diminished/^
9. Arkansas. — Enfurth v. Steven-
son, 71 Ark. 199, 72 S. W. 49.
California. — Barrett-Hicks Co. v.
Glas, 14 Cal. App. 289, 111 Pac. 760;
Barrett-Hicks Co. v. Glas, 9 Cal.
App. 491, 99 Pac. 856; Alcatraz
Masonic Hall Ass'n v. United States
Fidelity & Guaranty Co., 3 Cal. App.
538, 85 Pac. 156.
Georgia. — Haigler v. Adams, 5 Ga.
App. 637, 63 S. E. 715.
Iowa.— Bartlett v. Illinois Surety
Co., 142 Iowa 538, 119 N. W. 729.
Louisiana. — Police Jury of Parish
of Vernon v. Johnson, 111 La. 279,
35 So. 550.
Minnesota. — Norwegian Evangeli-
cal Lutheran Bethlehem Con®a-
tion V. United States Fidelity &
Guaranty Co., 83 Minn. 269, 86 N. W.
330.
Missouri. — Utterson v. Elmore
(Mo. App. 1911), 136 S. W. 9; Harris
V. Taylor (Mo. App. 1910), 129 S. W.
995; Burnes' Estate v. Fidelity &
Deposit Co., 96 Mo. App. 467, 70 S.
W. 518; Swasey v. Doyle, 88 Mo.
App. 536.
\ew York.— St. John's College v.
Aetna Indemnity Co., 201 N. Y. 335,
94 N. E. 994, affirming 135 App. Dlv.
480, 120 N. Y. Supp. 496.
Oregon. — Enterprise Hotel Co. v.
Book, 48 Ore. 58, 85 Pac. 333; Weh-
rung V. Denham, 42 Ore. 386, 71 Pac.
133.
Texas. — Zang v. Hubbard Building
& Realty Co. (Civ. App. 1910>, 125 S.
W. 85.
Washington. — Kracht v. Empire
State Surety Co. (Wash. 1911), 113
Pac. 773.
10. Piule V. Anderson, 160 Mo. App.
347, 142 S. W. 358.
11. Reissaus v. Whites, 128 Mo.
135, 106 S. W. 603.
" The mere destruction of the
identity of the contract without the
surety's consent is sufficient to
operate his release. The reasoning
of the law is the surety is not bound
by the old contract, for that has been
abrogated by the new; neither is he
bound by the new contract, because
he is no party to it; nor can it be
split into parts so as to be his con-
tract to a certain extent and not for
the residue; and, thereore, the
surety is either bound in toto or not
at all." Per Norton!, J.
133 Discharge OF Surety. §§112b, 11_'c
§ 112b. Building Contracts — Where Change Authorized. —
When the building contract authorizes changes and variations
from the contract or specifications to be made, such changes may
be made in conformity thereto without discharging the sureties.
This proposition rests upon the fact that the sureties have con-
sented in the first instance to the changes in the prescribed man-
ner.^ This is a general rule.^^ So an allowance to a contractor for
extras permissible under the contract do not constitute a change
in the construction of the building that will release a surety on
the contractor's bond.^* And one who subsequent to the, time for
the completion of the work under a building contract enters into
a bond to secure the performance of such contract cannot avoid
liability on the ground that prior to the time he executed such
bond an extension of time to complete the work had been granted,
as notice to him of an extension will be implied in such a case.^^
But when by its terms a contract is subject to alteration, the al-
terations must be made in compliance with the contract, or the
surety is discharged.^^
§ II2C. Building Contracts — Pemissive and Immaterial Devia-
tions. — In building contracts cases of were permissive deviations
in acts and omissions of performance, without any agreement,
express or implied, between the owner and contractor thereabout,
turn upon the question of the materiality of such deviations in
respect to the surety's risk.^^
12. Reissaus v. Whites, 128 Mo. Bumes' Estate v. Fidelity & Deposit
App. 135, 106 S. W. 603. Co., 96 Mo. App. 467, 70 S. W. 518.
13. United States. — McMulIen v. Washington. — Drumlaeller v.
United States, 167 Fed. 460, 93 C. C. American Surety Co., 30 Wash. 530,
A. 96. 71 Pac. 25.
Arkansas. — Marree v. Ingle, 69 14. Jenkins v. American Surety
Ark. 126, 61 S. W. 369. Co., 45 Wash. 573, 88 Pac. 1112.
Indiana. — Hedrick v. Robbins, 30 15. United States Fidelity & Guar-
Ind. App. 595, 66 N. E. 704. anty Co. v. Means & Fulton Iron.
iowa. — Bartlett v. Illinois Surety Works (Tex. Civ. App. 1910), 132 S.
Co., 142 Iowa 538, 119 N. W. 729. W. 536.
Minnesota. — Fergus Falls v. Illi- 16. Fullerton Lumber Co. v. Gates;
nois Surety Co., 112 Minn. 462, 128 89 Mo. App. 201.
N. W. S20. 17. Reissaus v. Whites, 128 Mo.
Missouri. — Utterson v. Elmore App. 135, 106 S. W. 603; Martin v.
(Mo. App. 1911), 136 S. W. 9; Whites, 128 Mo. App. 117, 106 S. W.
608.
§ 112d
Suretyship and Guaranty.
134
Acts or omissions in respect to the performance of a building
contract wliicli are mere immaterial variations and insubstantial
deviations which do not, in any manner, prejudice the right or en-
croach upon the liability of the surety will not be sufficient to
operate a discharge.^^ This doctrine is supported by numerous de-
cisions.^^
Changes or alterations in the manner of performing the work
under a building contract have been held not to release the surety
where the entire expense thereof was borne by the obligee and the
liability of the sureties was not added to in any way or the con-
tract price affected or changed in any manner.^*^
^ 1 1 2d. Building Contracts — Payment — Certificate of Archi-
tect or Other Person. — A frequent provision in regard to pay-
18. Martin v. Whites, 128 Mo. App.
117, 106 S. W. 608.
19. Arkansas.— Maree v. Ingle, 69
Ark. 126, 61 S. W. 369 (date of judg-
ment).
Louisiana. — Segari v. aiazzei, 116
La. 1026, 41 So. 245 (cliange in site
of dwelling house).
Maryland. — Aetna Indemnity Co.
V. Waters, 110 Md. 673, 73 Atl. 712
(failure to notify of delays and
slight departure from specifications
and alteration invoUing thirty dol-
lars) ; United Surety Co. v. Sum-
mers, 110 Md. 95, 72 Atl. 775 (omis-
sion of stairway).
Massachusetts. — Sampson Co. v.
Commonwealth, 202 Mass. 326, 88 N.
E. 911 (gi-ving note but not as pay-
ment).
Minnesota. — Fergus Falls v. Illi-
nois Surety Co., 112 Minn. 462, 128 N.
W. 820.
See Brandrup v. Empire State
Surety Co., Ill Minn. 376, 127 N. W.
424.
Missouri. — Boppart v. Illinois
Surety Co., 140 Mo. App. 675, 126 S.
W. 768 (one alteration paid for by
owner and two others to prevent
■water coming in through windows) ;
Snoqualmi Realty Co. v. Moynihan,
179 Mo. 629, 78 S. W. 1014 (altera-
tion for which no claim for pay was
made) ; Fullerton Lumber Co. v.
Gates, 89 Mo. App. 201.
New Jersey. — See City of Newark
V. New Jersey Asphalt Co., 68 N. J.
L. 458, 53 Atl. 294.
Oregon. — Enterprise Hotel Co. v.
Hook, 48 Ore. 58, 85 Pac. 333 (failure
to make request for alterations in
writing).
Texas.— I\Ieyers v. Wood, 26 Tex.
Civ. App. 591, 65 S. W. 671 (failure
of owner to retain per cent, of
amount allowed as payment).
Washington. — Keenan v. Empire
State Surety Co. (Wash. 1911), 113
Pac. 636; Martin v. Empire State
Surety Co., 53 Wash. 290, 101 Pac.
876.
A mortgage given as security
held not to be a departure from a
building contract so as to discharge
the surety. Borucinski v. Hampden
Real Estate Trust, 210 Mass. 99, 96
N. E. 60.
20. Prescott Nat. Bank v. Head.
11 Ariz. 213, 90 Pac. 328. See cases
cited.
135 Discharge of Sukety. § 112d
ment is that it shall only be made upon the certificate or estimate
■of an architect or other designated person.
The purpose of such a stipulation for payments is to guard
against the consequences of a default, in case the principal con-
tract prove a losing one, or the contracting party for any reason
fails to comply, the percentage retained, where that is provided
for, affording additional security, as well as holding out an in-
centive; and when it is not observed and advance or overpay-
ments are made, it is so obviously to the prejudice of the surety
that it operates as a discharge as a matter of law.^^ So when a
building contract provides for payments as the work progresses
according to the amount of materials furnished or work per-
formed upon estimates to be made by the supervising architect or
engineer and payments are made in disregard of it there is held
to be such a departure from the contract upon which the under-
taking of the surety or guarantor is based that he is released."^
An absolutely strict compliance with the provision as to the cer-
tificate of an architect or other person has not in all cases been
held essential.^^
And it has been decided that a surety is not released where the
certificate is signed by only^ one instead of two as required in the
contract,^'* or where it is not signed at all,"^ or where no certifi-
cate was given it appearing that the amount of the payments did
not exceed that authorized by the contract to be made.^^
21. Fidelity & Deposit Co. v. Ag- Fidelity & Guaranty Co., 29 Ky. Law-
new, 152 Fed. 955, 82 C. C. A. 105; Rep. 356, 93 S. W. 44.
First National Bank v. Fidelity & 26. Brandrup v. Empire State Surety
Deposit Co. of Maryland, 145 Ala. Co., Ill Minn. 376, 127 N. W. 424.
335, 40 So. 415; Harris v. Taylor Where a building contract pro-
(Mo. App. 1910), 129 S. W. 995. vided for the payment of eighty per
22. Fidelity & Deposit Co. v. Ag- cent, of the amount due for all work
new, 152 Fed. 955, 82 C. C. A. 105. done and material in place during
23. Absolutely strict compliance the progress of the work only upon
with provision as to certificate of the certificate of the architect it
architect held not essential. See was decided that payments without
Tally V. Ganahl, 151 Cal. 418, 90 Pac. such certificate did not release the
1049. surety where it appeared that at no
24. City of Madison v. American time did the payments equal the
Sanitary Engineering Co., 118 Wis. designated per cent, of labor per-
480, 95 N. W. 1097. formed or materials in place. Mar-
25. Allen County v. United States tin v. Whites, 128 Mo. App. 117, 106
S. W. 608.
§ 112e Suretyship and Guaeantt. 13(?
Where pa^ineiits arc to be made on the estimates of a certain
person and the contract does not provide whether the estimates
shall be oral or written, the surety is not released by a pay-
ment upon an oral estimate.^'
Nor where payments are to be so made is the surety released
by the fact that the person by whom the estimates are to be fur-
nished failed to perform his duty, it not appearing that there was
any fraud by the owner in making the payments or that he did not
act in good faith.^^
If the contract does not require that the certificate shall state de-
tails as to condition and progress of the work it is not necessary
that the certificate should contain any statement in regard thereto.^*
Compliance with a provision of this character may also be waived
by the surety.^''
§ 1126. Building Contracts — Payment Generally. — It may b»
stated generally that where the contract provides the manner in
which payment shall be made there should be a compliance there-
with. If the contract provides that pajTnents are to be made at
stated periods dependent upon the progress of the work or are to
be withheld undfir certain designiated conditions a surety has a
right to insist that such provisions shall be complied with and will
be released where there has been a material departure therefrom
to his injury,^^ in the absence of acts on his part which will oper-
27. Alexandria Water Co. v. Na- 335, 40 So. 415, holding no waiver un-
tional Surety Co., 225 Pa. St. 1, 73 der facts of case: Cowles v. United
Atl. 952. States Fidelity & Guaranty Co., 32
28. Young Men's Christian Ass'n Wash. 120, 72 Pac. 1032, holding
of North Yakima v. Gibson, 58 Wash, surety for compensation not re-
307, 108 Pac. 766; See, also. City of lieved by contractor's waiver.
Fergus Falls v. Illinois Surety Co., 31. Alcatraz Masonic Hall Ass'n
112 Minn. 462, 128 N. W. 820, as to v. United States Fidelity & Guaranty
irregularities in estimates. Co., 3 Cal. App. 338, 85 Pac. 156; St.
29. St. John's College v. Aetna In- John's College v. Aetna Indemnity
demnity Co., 201 N. Y. 335, 94 N. B. Co., 201 N. Y. 335, 94 N. E. 994, af-
994, affirming 135 App. Div. 480, 120 firming 135 App. Div. 480, 120 N. Y.
N. Y. Supp. 496. Supp. 496; Black Masonry & Con-
30. Enterprise Hotel Co. v. Hook, tracting Co. v. National Surety Co.
48 Ore. 58, 85 Pac. 333. (Wash. 1911), 112 Pac. 517; Lein-
As to waiver of this provision, see decker v. Aetna Indemnity Co., 52
First National Bank v. Fidelity & Wash. 601, 101 Pac. 219; Kunz v.
Deposit Co. of Maryland, 145 Ala. Boll, 140 Wis. 69, 121 N. W. 601;
137 Discharge OF Surety. § 112f
ate as an estoppel. ^^ There are, however, niimeroHs cases where
a payment before the time stipulated or a failure to withhold pay-
ments has been, under the circumstances of the case, held not to.
be a material chancre of the contract which would discharge the
surety. ^^ And it has been decided that, relatively to a surety on a
contractor's indemnity bond, the owner of a building is not bound
to withhold payments to the contractor, as stipulated and agreed
in the contract, on the ground that the contractor is in default
with the material men.^* And an advance to a building contractor
for which he gives his note and which was not intended by either
party to be a payment under the contract affecting the liability of
the sureties may be regarded as a loan.^"
And a surety has been held not to be relieved from liability by
the fact that a payment to the building contractor was not paid at
the designated time, it not appearing that the certificate provided
for in the contract as a prerequisite to payment had ever been pre-
sented.^^
§ ii2f. Building Contracts — Acceptance by Architect — Cer-
tificate. — A contract which provides for the work on a building
to be performed in the best manner and the materials to be of the
best quality, subject to the acceptance or rejection of an architect,
Pauly Jail Building & Mfg. Co. v. M. Massachusetts Bonding & Ins.
Collins, 138 Wis. 494, 120 N. W. 225. Co. v. Realty Trust Co. (Ga. 1912),
32. Hellman v. Farrelly, 132 App. 73 S. E. 1053, holding that the surety
Div. (N. Y.) 151, 116 N. Y. Supp. on the bond of a contractor for the
809; Hellman V. City Trust, Safe De- faithful performance of a building
posit & Surety Co., Ill App. Div. contract is not released because at
(N. Y.) 879, 98 N. Y. Supp. 51. the time of the payment of the last
33. Arkansas.— Marree v. Ingle, 69 installment of the contract price.
Ark. 126, 61 S. W. 369. pursuant to the terms of the con-
Indiaua.— Hedrick v. Robbins, 30 tract, the work is incomplete and
Ind. App. 595, 66 N. E. 704. there are unpaid subcontractors and
New York. — Degnon-McLean Con- materialmen,
struction Co. v. City Trust, Safe De- 35. Museum of Fine Arts v. Ameri-
posit & Surety Co., 99 App. Div. 195, can Bonding Co. (Mass. 1912), 97
90 N. Y. Supp. 1029, affirmed 184 N. N. E. 633.
Y. 544, 73 N. E. 1093. 36. Martin v. Empire State Surety
Oregon.— Enterprise Hotel Co. v. Co., 53 Wash. 290, 101 Pac. 876.
Hook, 48 Ore. 58, 85 Pac. 333. Examine Aetna Indemnity Co. v.
Texas.— Meyers v. Wood (Tex. Civ. George A. Fuller Co., Ill Md. 321, 73
App.). 65 S. W. 671. Atl. 738.
§ 113 Suretyship and Guaranty. 138
all to be done in strict accordance with the plans and specification,
does not make the acceptance by the architect final and conclusive,
and will not bind the owner or relieve the contractor from the
agreement to perform according to plans and specifications."
In an action on a contractor's land to recover damages for the
failure of a contractor to complete a building, an allowance for
damages on account of defective material cannot be objected to on
the ground that the architect and superintendent accepted the
building, where it appears that the contractor abandoned the build-
ing before completion and under the contract there could be no
valid acceptance by the architect until final completion.^*
In an action by a contractor against a guaranty company on its
bond as surety for a sub-contractor for damages by reason of the
failure of the sub-contractor to complete the work, a provision in
the contract that the contractor should take charge of and complete
the work if the architect should certify that the default of the sub-
contractor was sufficient grounds to do so applies only where the
latter is wanting to go on with the work, but is not doing it in ac-
cordance with the terms of the contract. It has no application
where the sub-contractor throws up his job and quits the work, as
in such a case the contractor is justified in taking charge of the
work and completing it.^^
§ 113. Extension of Time of Payment. — This subject has been
fully treated under the headings of the liability of sureties, and
60 will be given but a short review in this connection. The law of
suretyship forbids that there shall be between debtor and creditor
any agreement that shall imperil the rights of the surety. Thus,
a material man cannot hold the sureties liable on a contractor's
bond, conditioned that the contractor shall make full payment to
all persons supplying material, if he has extended the time of pay-
ment by taking notes due after the termination of the contract, as
it deprives the sureties of the opportunity to compel appropriation
of payments as made for claims for materials.^^
37. Mercantile Trust Co. v. Hen- 39. United States Fidelity & Guar-
sey, 205 U. S. 298, 51 L. Ed. 811, 27 anty Co. v. Probst, TO Ky. Law Rep.
Sup. Ct. 535, affirming 27 App. D. C. 63, 97 S. W. 405.
210. 40. United States v. Trust Co., 89
38. Jenkins v. American Surety Fed. 921.
Co., 45 Wash. 573, 88 Pac. 1112. See § 42 et seq.
139
Discharge of Surety.
§ 113
In general, any extension of time upon a valid consideration
between the creditor and debtor, without the surety's consent, will
release him.^^ But when the sureties sign as makers, and even if
41. United States. — Uniontown
Bank v. Mackey, 140 U. S. 220, 11
Sup. Ct. 844, 35 L. Ed. 485; McMullen
V. United States, 167 Fed. 460, 93 C.
C. A. 96.
Arkansas. — Ki&sire v. Plunkett-
Jarrell Grocer Co. (Ark. 1912), 145
S. W. 567.
California. — Daneri v. Gazzola, 139
Cal. 416, 73 Pac. 179.
District of Columbia. — Walker v.
Washington Title Ins. Co., 19 App. D.
C. 575.
Georgia. — Randolph v. Flemming,
59 Ga. 776.
Illinois. — Home Nat. Bank of Chi-
cago V. Estate of Waterman, 134 111.
461, 29 N. E. 503; Highland Park
State Bank v. Sheahen, 149 111. App.
.225.
Indiana. — Post v. Losey, 111 Ind.
74, 12 N. E. 121.
Iowa. — Morgan v. Thompson, 60
Iowa 280, 14 N. W. 30.
Kansas. — Bank of Horton v.
Brooks, 64 Kan. 285, 67 Pac. 860;
Rose V. Williams, 5 Kan. 483.
Kentucky. — Farmers' Bank v.
Wickliffe, 131 Ky. 787, 116 S. W. 249.
Maryland. — Berman v. Elm Lorn
& Savings Ass'n, 114 Md. 191, 78
Atl. 1104.
Massachusetts, — Wilson v. Foot,
11 Met. 285.
Minnesota. — Farmers' Supply Co.
V. Weiss, 115 Minn. 428, 132 N. W.
917.
Missouri. — Johnson v. Franklin
Bank, 173 Mo. 171, 73 S. W. 191; Bar-
rett V. Davis, 104 Mo. 549, 10 S. W.
377; Steeile v. Johnson, 96 Mo. App.
147, 69 S. W. 1065.
Nebraska. — Shuler v. Hummel
1 Neb. (Unoff.) 204, 95 N. W. 350;
Dillon V. Russell, 5 Neb. 484.
New York. — National Park Bank
V. Koehler, 204 N. Y. 174, 97 N. E.
468; Ducker v. Rapp, 67 N. Y. 4G4;
Burfeind v. People's Surety Co. of
New York, 139 App. Div. 762, 124 N.
Y. Supp. 385; Cohn v. Spizer, 129
N. Y. Supp. 104.
North Carolina. — Revell v. Thrash,
132 N. C. 803, 44 S. E. 596; First Na-
tional Bank v. Swirk, 129 N. C. 255,
39 S. E. 962; Jenkins v. Daniels, 125
N. C. 161, 34 S. E. 239.
Ohio. — Miller v. Shein, 41 Ohio St.
376.
Oregon, — Hoffman v. Hobighorst,49
Ore. 379, 89 Pac. 952, 91 Pac. 20;
Lazelle v. Miller, 40 Ore. 549, 67 Pac.
307.
Pennsylvania. — Grayson's Appeal,
108 Pa. St. 581.
Texas. — Mann v. Brown, 71 Tex.
241, 9 S. W. Ill ; First National Bank
V. Rusk Pure Ice Co. (Civ. App.
1911), 136 S. W. 89; Fambro v. Keith.
57 Civ. App. 302, 122 S. W. 40; Long
V. Patton, 43 Civ. App. 11, 93 S. W.
519; Carter-Battle Grocer Co. v.
Clarke (Civ. App. 1906), 91 S. W. 880.
Wisconsin. — Welch v. Kukuk, 128
Wis. 419, 107 N. W. 301; Jaffray v.
Crane, 50 Wis. 349, 7 N. W. 300.
England. — Clarke v. Birley, 41 Ch.
Div. 422.
Indemnified surety not released.
First National Bank v. Davis, 87 I\Io.
App. 242.
Assignees after maturity of note
cannot recover from surety. Hrff-
man v, Hobighorst, 49 Ore. 379, 89
Pac. 952. 91 Pac. 20.
Question of extension held to be
§ 113
SUKETTSHIP AND GuAEANTY.
14:(>
the payee knows that they are only sureties, an extension of the
time by '' the makers " will include them, so they will not be dis-
charged/^ And a mere indulgence to the debtor by the creditor
will not discharge the sureties/^ So when a collateral contract is
made between the debtor and creditor to extend the time of pay-
ment, which is to relieve the surety, and the creditor stipulates
that it shall not affect the original contract, the collateral contraet
does not release the surety/*
The surety is discharged when the creditor, without his consent,
gives time to the principal debtor for a valuable consideration, be-
cause in so doing he deprives the surety of the right he would have
had from the mere fact of entering into the suretyship — namely, to
use the name of the creditor to sue the principal debtor — and if
this right be suspended for a day or an hour, and not injuring the
surety at all, and even positively benefiting him, nevertheless, by
the principle of equity, it is established that this discharges the
surety altogether,*^ and also security given by a third party/" And
where the indorser of a check was discharged by the indorsee's
for .hiry. Revell v. Thrash, 132 N.
C. 803, 44 S. E. 596.
Attorney no authority to extend
note payable to client. An attorney
retained to collect a debt and not
authorized to release it or any party
liable to his client, has' not express
or implied authority to bind him by
an agreement extending the time of
payment, and such an agreement en-
tered into by the attorney will not
discharge the surety. Hall v. Pres-
nell, 157 N. C. 290, 72 S. E. 985.
In Kansas, prior to the adoption
of the Negotiable Instruments Law,
it was the well-settled law of the
State that an extension of time of
payment for a valuable consideration
paid by the principal of a note, with-
out the consent of the surety, oper-
ated to discharge the surety. Lane
V. Hyder (Mo. App. 1912), 147 S. W.
514.
Ohio Rey. St, §§ 3175o, 3175p, does
not apply to a contract for extension
of time. Richards v. Market Exch.
Bank Co., 81 Ohio St. 348, 90 N. E.
1000.
42. Sawyer v. Campbell, 107 Iowa
397, 78 N. W. 56.
43. Grier v. Flitcraft, 57 N. J. Eq.
556, 41 Atl. 425; Wilson v. Whitmore,
92 Hun 466, 36 N. Y. Supp. 550; Wil-
son V. Webber, 157 N. Y. 693, 51 N.
E. 1094; Dreeben v. First National
Bank (Tex. Civ. App. 1906), 93 S. W.
510.
44. Kaufmann v. Rowan, 189 Pa.
St. 121, 42 Atl. 25.
See § 116 herein, as to reservation,
of remedies against surety.
45. Hallock v. Yankey, 102 Wis.
41, 78 N. W. 156; Polak v. Everett, 1
Q. B. D. 669; Rees v. Berrington, 2
Ves. 540; Greenwood v. Francis
(1899), 1 Q. B. 312.
46. Jenkins v. Daniels, 125 N. C.
161, 34 S. E. 239.
See § 42 et seq.
141j Discharge of Surety. §§ 113a, 113b
presenting it to the drawee and having it certified, the subsequent
delivery by the indorser to the indorsee of a memorandum con-
senting to an extension of time for payment of the check did not
renew the liability of the indorser as a surety, being without con-
sideration."
A decree of foreclosure providing that the sale of mortgaged
land shall be postponed for a certain length of time is not an
extension of the time of payment of notes to secure which the mort-
gage was given. The giving of time by such decree is an act of
the court and is not by an agreement of the parties nor is it made
upon any consideration.^*
§ 113a. Extension of Time of Payment — Where Instrument
Provides for. — Where the terms of a contract definitely contem-
plate that it may be necessary or very convenient to extend the
time of performance thereunder, as in the case of a contract for
the construction of a public work, the sureties will be taken as
having contemplated such an extension as also permissible against
themselves.^^ So where a note contains a provision allowing an
extension of time for its payment the surety will not be released
by such an extension.^**
§ 113b. Extension of Time of Payment — Evidence — Burden
of Proof. — A surety who intends to rely upon the defense of an
extension of time has the burden of proving that without his
knowledge or consent a valid contract upon a sufficient considera-
tion was made for such extension. He cannot rest his defense
upon the mere presumption of such an extension from the fact
that the note was not paid until some time after maturity. So
the court declined to take judicial notice of an alleged custom
of banks to require prompt payment of notes at maturity, or else
47. First National Bank of Detroit U. S. 309, 317, 46 L. Ed. 1177, 1181,
V. Currie, 147 Mich. 72, 110 N. W. 22 Sup. Ct. R. 875.
499. 50. Winnebago County State Bank
48. Kissire v. Plunkett-Jarrell v. Hiistel, 119 Iowa 115, 93 N. W. 70;
Grocer Co. (Ark. 1912), 145 S. W. First National Bank v. Wells, 98
567. Mo. App. 573, 73 S. W. 293; Mer-
49. United States v. McMullen, chants' National Bank v. Worcester,
222 U. S. 460, 32 Sup. Ct. 128, 56 L. 75 N. H. 495, 77 Atl. 11.
Ed. . . . ; United States v. Freel, 186
§ IH
Suretyship and Guabanty.
142
to have tliem extended, and from such notice, together with the
fact that the hank hrought no suit upon the note, and that it
matured four years prior to the institution of the action, to pre-
sume that there was a valid extension of the time of payment of
the note in question.^^
§ 114. Consideration. — To have the effect to discharge a surety
the agreement fur extension of time of payment made by the
creditor with the principal debtor without the consent of the
surety, must be upon a valid consideration, such as will preclude
the creditor from enforcing the debt against the principal until
the time expires.^^ But the mere indulgence of the principal
51. Livermore v. Ayres (Kan. S. C.
1911), 119 Pac. 549.
See, also, Patnode v. Deschenes, 15
N. D. 100, 106 N. W. 573.
It is not presumed that a surety
for compensation was injured.
United States v. United States Fidel-
ity & Guaranty Co. (U. S. C. C), 178
Fed. 721.
See, also. United States Fidelity &
Guaranty Co. v. United States, 178
Fed. 692, 102 C. C. A. 192, affirming
172 Fed. 268.
Payment of interest in advance is
prima facie evidence that time has
been extended. Revell v. Thrash,
132 N. C. 803, 44 S. E. 596.
52. California. — ^Stroud v. Thomas,
139 Cal. 274, 72 Pac. 1008.
Georgia. — Benner v. Nelson, 57 Ga.
433.
Illinois. — Moy&es v. Schendorf,
238 111. 232, 87 N. E. 401, affirming
142 111. App. 293; Galbraith v. Fuller-
ton, 53 111. 126.
Indiana. — Hogshead v. Williams,
55 Ind. 145; Weaver v. Prebster, 37
Ind. App. 582, 77 N. E. 674.
Iowa. — Wendling v. Taylor, 57
Iowa 354, 10 N. W. 675.
Maine.— Br- rtlett v. Pitman, 106
Me. 117, 75 Atl. 379.
Maryland. — Berman v. Elm Loan
& Savings Ass'n, 114 Md. 191, 78 Atl.
1104.
Missouri. — Williams v. Jenson, 75
Mo. 681.
New Torlt. — Olmstead v. Latimer,
158 N. Y. 313, 53 N. E. 5; Schwartz v.
Smith, 143 App. Div. 297, 128 N. Y.
Supp. 1.
Pennsylvania. — Brubaker v. Oke-
son, 36 Pa. St. 519; Snively v. Fisher,
21 Pa. Super. Ct. 56.
Texas.— Hunter v. Clark, 28 Tex.
139.
Virginia. — Atlantic Trust & De-
posit Co. V. Union Trust & Title Cor-
poration, 110 Va. 286. 67 S. E. 182.
Wisconsin. — Fay v. Tower, 58 Wis.
286, 16 N. W. 558.
See §§42 et s-eq. as to extension of
time.
For tlie payee of a promissory
note to release one of tlie makers,
there must be a contract to that
effect founded on consideration, ex-
cept, of course, where release flows
by operation of law from the con-
tract of the payee. Williams-Thomp-
son Co. V. Williams (Ga. App. 1912),
73 S. E. 409, holding that where the
payee of a joint promissory note exe-
cutes and delivers to one of the
143
DiSCHAKGE OF SuRETY.
115
debtor by the creditor, without a binding contract therefor based
on a valid consideration, will not discharge the suretj.^^
A partial payment of a note before maturity is a good considera-
tion, to extend the time to pay the balance, and will discharge the
surety.^^ But where the partial j)ayment is on a note overdue, it
is not a valid consideration for the extension of the time to pay
the balance, and such payment cannot therefore discharge the
surety.^*' Nor is the payment of overdue interest a sufficient con-
sideration for an extension of time," though the payment of in-
terest in advance is held to be.^^ The consideration need not be
based upon a money consideration for the extension ; a mutual
promise is a sufficient consideration.^^ And it is not necessary that
the benefit inures to the surety direct. The surety may ratify an
unauthorized act of his agent in signing his name to a bond.*^"
§ 115. Effect on Surety's Contract by Taking Usury for Ex-
tension. — While the agreement to pay usurious interest is execu-
makers a writing purporting to re-
lease him from all liability thereon,
the writing is ineffectual for that
purpose if it is voluntarily given
without legal benefit to the maker
of the release or detriment to the
person in whose favor it is made.
53. Georgia, — Reed v. Flipper, 47
Ga. 273.
Illinois. — Lyle v. Moore, 24 111. 95.
Indiana. — Kirby v. Studebaker, 15
Ind. 45.
loTva. — Davis v. Graham, 29 Iowa
514.
Kansas. — Vancil v. Hogler, 27 Kan.
407.
Missonri. — Rucker v. Robinson, 38
Mo. 154.
New York. — Lowman v. Yates, 37
N. Y. 601; Schwartz v. Smith, 143
App. Div. 297, 128 N. Y. Supp. 1.
Pennsylvania. — Love v. Brown, 38
Pa. St. 307.
West "Virginia, — First National
Bank of Cumberland v. Parsons, 45
W. Va. 688, 32 S. E. 271.
55. Greely v. Dow, 2 Met. 176;
Uhler V. Applegate, 26 Pa. St. 140.
56. Davis v. Stout, 126 Ind. 12, 25
N. E. 862; Ingles v. Sutliff, 36 Kan.
444, 13 Pac. 828; Petty v. Douglass,
76 Mo. 70; Schwartz v. Smith, 143
App. Div. (N. Y.) 297, 128 N. Y.
Supp. 1; Halliday v. Hart, 30 N. Y.
474.
67. Stroud v. Smith, 139 Cal. 274,
72 Pac. 1008; Weaver v. Prebster,
37 Ind. App. 582, 77 N. E. 674.
58. Highland Park State Bank v.
Sheahen, 149 111. App. 225.
See Steele v. Johnson, 96 Mo. App.
147, 69 S. W. 1065.
Where debt payable in monthly
installments an agreement to pay
interest on the entire sum for a
stated period held consideration for
promise not to enforce as payable.
Dearing v. Jordan (Tex. Civ. App.
ICIO), 130 S. W. 876.
59. English v. Landon, 181 111.
614, 54 N. E. 911.
60. Drakely v. Gregg, 8 Wall. (U.
S.) 242, 19 L. Ed. 409; Lynch v.
Smyth, 25 Colo. 103, 54 Pac. 634.
I lit; Suretyship and Guaranty. 14A
tory as to both parties, it is void as to botli, and does not discliarge
the surety on the debt.*^^ But when the contract is executed and the
creditor has accepted the usurious interest for an extension of pay-
ment on the note, the surety is released.^^ But it is said where the
usury causes only a forfeiture of all interest, the forbearance is
therefore without consideration, and the surety is not discharged/'
§ 1 1 6. Effect of Creditor's Reservation of His Remedies
Against Surety, — The creditor may reserve his remedies against
the surety at the time of the extension, and, hence, not discharge
the surety.''* So an agreement upon a sufficient consideration by
the creditor to release and discharge the principal debtor, but ex-
pressly reserving in such instrument or release as a part of the
same transaction, the right of the creditor to proceed against the
surety upon the bond of the same oibligation, does not affect in
equity, or at law, the continuing liability of the surety.''^
•Such agreement does not operate as an absolute, but only as a
conditional, suspension of the right. The stipulation in such cases
61. Wittmer v. Ellison, 72 111. 301; 63. Polkinghorne v. Hendricks, 61
Galbraith v. Fullerton, 53 111. 126; Miss. 366.
Scott V. Hall, 6 B. Mon. (Ky.) 285; 64. Illiuois. — Mueller v.' Dob-
Pyle V. Clark, 3 B. Mon. (Ky.) 262; scheutz, 89 111. 176.
Tudor V. Goodloe, 1 B. Mon. (Ky. Kansas.— Dean v. Rice, 63 Kan.
322; Polkinghorne v. Hendricks, 61 691, 66 Pac. 992.
Miss. 366; Mieswindle v. Jung, 30 Massachusetts.— Tobey v. Ellis,
Wis. 361. 114 Mass. 120.
62. Georgia.— Camp v. Howell, 37 Missouri.— Rucker v. Robinson, 38
Ga. 312. Mo. 154.
Illinois.— Myers v. Bank, 78 111. New York.— National Park Bank
257; Danforth v. Semple, 73 111. 170. v. Kuehler, 65 Misc. R. 390, 121 N. Y.
ludiaua.— Lemmon v. Whitner, 75 Supp. 640, affirmed 137 App. Div.
Ind. 318; Cross v. Wood, 30 Ind. 378. 785, 122 N. Y. Supp. 490.
lo-wa.— Corielle v. Allen, 13 Iowa Pennsjhauia.— Hagey v. Hill, 75
189. Pa. St. 108.
Missouri.— Wild v. Home, 74 Mo. England.— Kearsley v. Cole, 16
551; Stillwell v. Aaron, 69 Mo. 539. Mees. & W. 128; Eealer v. Mayor,
New York.- Church v. Maloy, 70 19 C. B. (N. S.) 76.
N. Y. 63. 65. Rockville National Bank v.
Ohio.— Blazer v. Beverly, 15 Ohio Holt, 58 Conn. 526, 20 All. 669; Du-
St. 57. pee v. Blake, 148 111. 453, 35 N. E.
West Virginia. — Parsons v. Hor- 867; Parraalee v. Lawrence, 44 111.
rold, 46 W. Va. 122, 32 S. E. 1002; 405; Jones v. Sarchett, 61 Iowa 520,
Glenn v. Magan, 23 W. Va. 467. 16 N. W. 589.
149 DlSCHAEGE OF SuRETY. §§ 117, 118
is treated in effect as if it was made in express terms subject to
the consent of the surety, and the surety is not thereby discharged.^
So when a note is payable at a fixed future time, the surety is not
discharged, if the right of an immediate action is reserved upon
the debt, when it is extended by the creditor."
§ 117. Extension With Consent of Surety. — Whenever the
creditor gives time and makes a new contract with the principal
debtor, of which new contract the surety has knowledge and to
which he assents, he is not thereby discharged.®^ By the common
law, when action is upon a specialty contract, the surety cannot
set up a parol agreement to enlarge the time without his consent
as a defense, for such is for a court of equity.®*
A surety cannot be discharged where he induces the extension
of time upon a valuable consideration, or connives with that in-
tention.'^"
§ 118. Waiver of Discharge. — The surety may waive his dis-
charge. Thus, after his discharge with knowledge that he is no
longer liable, if he promises to pay the debt he is then bound for
66. Calvo V. Davies, 73 N. Y. 217 ; New Hampshire. — Crosby v. Wyatt,
Morgan v. Smith, 70 N. Y. 537. 10 N. H. 318.
67. United States. — United States New York. — Klein v. Long, 27
V. Hodge, 6 How. 279, 12 L. Ed. 437. App. Div. 158, 50 N. Y. Supp. 419.
New Hampshire. — Hutchinson v. Texas. — Trotti v. Gaar, Scott &
Wright, 61 N. H. 108. Co. (Civ. App. 1910), 126 S. W. 670.
New York. — Fox v. Parker, 44 Vermont — Corlies v. Estes, 31 Vt.
Barb. 541. 653.
Vermont. — Viele v. Hoag, 24 Vt. 46. England. — Smith v. Winter, 4
Wisconsin. — Paine v. Voorhees, 26 Mees. & W. 454.
Wis. 522. Performance of condition snbse-
England.— Price v. Barker, 4 El. & qnent by sureties in accordance with
B. 760; Wyke v. Rogers, 1 DeGex, M. an agreement for extension entered
& G. 408 ; Webb v. Hewitt, 3 Kay & into by them will release them where
J. 438; Owen v. Houran, 13 Beav. so provided. Mockett v. Boston Inv.
196. Co., 2 Neb. (Unoffi.) 500, 89 N. W.
68. Connecticut. — Rockville Nat. 283.
Bank v. Holt, 58 Conn. 526, 20 Atl. 69. Loop v. United States, 3 Mason
669; Adams v. Way, 32 Conn. 160. 446; Wittmer v. Ellison, 72 111. 301;
Maine.— Osgood v. Miller, 67 Me. Davy v. Pendergrass, 5 Bam. & AI.
174. 187; Parker v. Watson, 8 Exch. 409.
Missouri.— Bruegge v. Behard, 89 70. Williams v. Gooch, 73 111. App.
Mo. App. 543. 557.
10
li
§§ 119, 120 SUEETYSHIP AND GuAEANTY. 14S
its paymontJ^ iSo, if a surety, after time given by the creditor to
the principal, promises to pay the debt with knowledge of the fact,
he is liable without any new consideration for the promise. He
will be bound upon the original consideration, and not upon the
new promise.^^
§ 119. Extension Must Be for a Time Certain.— In order that
an extension of time of payment may release a surety, it must ap-
pear that it was for a time certain and without the surety's con-
sent.'^ iSo an agreement for the extension of time between the
payee and principal maker of a promissory note must be for a
definite time in order that it may work a release of the surety ''
it must not only be binding in law, but time of extension must be
precisely fixed,^^ because if a definite time is not fixed, the cred-
itor can proceed at any time to collect the debt.
§ 120. Giving Time to One of Two or More Sureties. — Giving
time to one of two or more sureties on a promissory note does not
discharge the others.''*^ Because the mere giving of time to one of
two or more obligors whose obligations are equal, will not so
operate." For giving time by oral agreement to one of two
sureties cannot have any greater legal eft'ect than a covenant by a
71. First National Bank v. Whit- Indiana. — Weaver v. Prebster, 37
man, 66 111. 33; Rindskopf v. Do- Ind. App. 582, 77 N. E. 674.
man, 28 Ohio St. 516. Maryland.— Hayes v. Wells, 34 Md.
72. Bank v. Johnson, 9 Ala. 622; 512.
Sigourney v. Wetherell, 6 Mete. Mississippi. — Worthington v. Gay,
(Mass.) 553; Porter v. Hodenpuyl, 9 7 Sm. & M. 522.
Mich. 11; Fowler v. Brooks, 13 N. North Carolina. — Ravell v. Thrash,
H. 240. 132 N. C. 803, 44 S. E. 596; Benedict
73. Gardner v. YvTatson, 13 111.347; v. Jones, 129 N. C. 475, 40 S. E. 223.
Flynn v. Mudd, 27 111. 323; Olson v. Pennsylvania. — Miller v. Stern, 2
Chism, 21 Ind. 40. Pa. St. 286.
See Dreehen v. First National Shortness of the time is imma-
Bank (Tex. Civ. App. 1906), 93 S. W. terial if fixed. Revell v. Thrash, 132
510. N. C. 803, 44 S. E. 596.
74. Morgan v. Thompson, 60 Iowa 76. Draper v. Wild, 13 Gray
280, 14 N. W. 306; Jenkins v. Clark- (Mass.) 580.
Bon, 7 Ohio 72. See § 133 as to release of co-
75. Georgia.— Woolfolk v. Plant, surety.
46 Ga. 422. 77. Dunn v. Slee, Holt, N. P. 399, 1
Moore 2.
147! DlSCHAEGE OF SuRETY. § 121
grantor not to sue for a specified time, one of two or more joint
debtors. Such covenant is not a release, and it furnishes no de-
fense to the other debtors.^* Where a note is given by several
parties, though part of them are in fact sureties for the others,
yet if that does not appear upon the face of the note, the payee
does not discharge the sureties by giving time to the principal
debtor, unless he has knowledge at the time of so doing that the
other makers were sureties.''® But if a judgment creditor extends
the time for payment as to one of two judgment debtors, the cred-
itor knowing that the other was surety for the one to whom he ex-
tended the time, the surety is discharged.^"
§ 121, What is a Promise of Extension. — A promise of exten-
sion upon a note, in order to discharge the surety thereto, must be
such as will prevent the holder from bringing action against the
principal. So taking interest in advance will not constitute such
promise.^^ In order to discharge the surety the contract must be
such as will prevent the holder from suing the principal 'before the
expiration of the time alleged for the extension.^^ This is on the
principle that an express covenant not to sue the principal debtor,
for a certain or prescribed time, will not discharge the surety, be-
cause, notwithstanding the agreement, suit may be brought at any
time, and the covenant is no bar, but only gives the covenantee an
action for damages.^'^ When time is given to the principal debtor
by a valid agreement which ties up the hands of the creditor, the
surety is discharged. For if, notwithstanding such contract, it
were competent to sue the surety, the latter would immediately
have his remedy over against the debtor.^*
In order to release the surety there must be an actual mutual
78. Shed v. Pierce, 17 Mass. 628; E. 674; Blackstone Bank v. Hill,
Wilson V. Foot, 11 Met. (Mass.) 285. 10 Pick. (Mass.) 153; Elliott v.
79. Mullendore v. Wertz, 75 Ind. Quails, 149 Mo. App. 482, 130 S. W.
431 ; Wilson v. Foot, 11 Mete. (Mass.) 474.
285. 83. Perkins v. Gilman, 8 Pick.
80. Gibson V. Ogden, 100 Ind. 20. (Mass.) 229; Fallerm v. Valentine.
81. Hosea v. Rowley, 65 Mo. 357; 11 Pick. 156; Doe v. Tuttle, 4 Mass.
Oxford Bank v. Lewis, 8 Pick. 414.
(Mass.) 458. 84. Clippinger v. Cress, 2 Watts
82. Highland Park State Bank v. (Pa.) 45; First Nat. Bank v. Leavitt,
Sheehan, 149 111. App. 225; Weaver 65 Mo. 562.
T. Prebster, 37 Ind. App. 582, 77 N.
§ 123 Suretyship and Guaranty. 14rS
intention constituting an agreement ^^ which is definite,*^ and bind-
ing.
§ 122. Accepting New Note. — The surety is discharged when
the creditor accepts a new note payable at a future time, because
if the agreement to extend is not expressed it will be implied.*'
The taking two renewal notes from the principal debtor by way
of conditional payment of an existing note and receipt of interest
in advance upon it, amounts to an extension of the original, and
effects the discharge of the surety.^^ The taking of a new note im-
plies an agreement to give time on the old.^" The acceptance by
the creditor of a valid obligation payable in the future, operates to
suspend all rights of action on the consideration for which it is
given until the time fixed for the payment of the obligation, and,
hence, discharges the surety on the original obligation.^^
85. Highland Park State Bank v.
Sheahen, 149 111. App. 225.
86. Berman v. Elm Loan & Sav-
ings Ass'n, 114 Md. 191, 78 Atl. 1104.
87. Denver Engineering Works v.
Elkins, 179 Fed. 922, judgment re-
versed on question of power of fed-
eral court as to report of a referee;
181 Fed. 684, 105 C. C. A. 1;
Kissire v. Plunkett-Jarrell Grocer
Co. (Ark. 1912), 145 S. W. 567.
Must be valid and enforceable.
Burfeind v. People's Surety Co. of
New York, 139 App. Div. (N. Y.) 762,
124 N. Y. Supp. 385.
88. Hubbard v. Gurney, 64 N. Y.
457; Place v. Mcllvain, 38 N. Y. 96;
Fellows v. Prentiss, 3 Denio 512.
89. Robinson v. Offcut, 7 T. B.
Mon. (Ky.) 540; First Nat. Bank v.
Leavitt, 65 Mo. 562 ; Greene v. Bates,
74 N. Y. 33; Walters v. Swallow, 6
Whart. (Pa.) 446.
90. Appleton v. Parker, 15 Gray
(Mass.) 173; Myers v. Welles, 5 Hill
(N. Y.) 463; Slagle v. Pow, 41 Ohio
St. 603; Weed Sewing Mach. Co. v.
Aberreicht, 38 Wis. 325.
91. Georgia. — Simmons v. Guise,
46 Ga. 473.
Illinois. — Parlin & Orendorff Co. v.
Hutson, 198 111. 389, 65 N. E. 93.
Indiana. — Rittenhouse v. Kemp,
37 Ind. 258.
Iowa. — Reints & De Buhr v. Uhlen-
hopp, 149 Iowa 284, 128 N. W. 400;
Chickasaw County v. Pitcher, 36
Iowa 593.
Missouri. — Smarr v. Schnitter, 38
Mo. 478.
New York. — Greene v. Bates, 74 N.
Y. 333; Union Trust Co. v. McCrum,
145 App. Div. 409, 129 N. Y. Supp.
1078.
Texas. — Westbrook v. Belton Na-
tional Bank, 97 Tex. 246, 75 S. W.
842.
Virginia. — Stuart v. Lancaster, 84
Va. 772, 6 S. E. 139.
Wisconsin. — Omaha National Bank
V. Johnson, 111 Wis. 372, 87 N. W.
237.
England. — Baker v. Walker, 14
Mees. «6; W. 465; Walton v. Mascall.
13 Mees. & W. 452; Price v. Price,
16 Mees. & W. 232.
149 DiSCHAKGJi OF SuRETY. § 123
However, there are decisions whicli hold that the mere fact that
the creditor takes a new note payable after maturity of the orig-
inal debt, raises no implication in law that he agrees to give time
for the payment of the original note, and that the agreement to
give time must be proved as a fact.^^ Again where the new note is
not enforceable, as where it was signed by one as attorney for an-
other when such person had no authority to so sign the surety is
not released.^^ If the surety consents to the acceptance of the new
note and surrender of the old one he of course by assenting thereto
is not released from liability. And if at the time of so consent-
ing he has knowledge of a defense to the original note, such as a
diversion of the same from the purpose for which it was given, he
will not be permitted to avail himself of that defense to an action
on the renewal note.^*
And where a mortgage is given by a person to secure all debts
which may become due from the corporation the fact that new
notes are given in renewal of others without the knowledge of the
mortgagor will he no defense in an action to enforce such new notes
against the property.^"
If, however, the new notes are not a part of the same transac-
tion in connection with which the bond was given the security
thereon is not discharged.^®
§ 123. Taking Collateral Security. — Taking collateral security
by the creditor or holder of the note in addition from the maker of
the instrument, does not release the indorser or surety. And it is
not material of what character the collateral security may be. It
may consist of promissory notes not due, a mortgage payable in the
future, or anything else, which does not affect the remedy on the
original contract. This can only be done by agreement for a valu-
able consideration. The remedy on the collateral instrument is
wholly immaterial unless it discharges or postpones the original
92. Weakley v. Bell, 9 Watts M. Baut v. Donly, 160 Ind. 670, 67
(Pa.) 273; Shaw v. Church, 39 Pa. N. E. 503.
St. 226; Bing v. Clarkson, 2 Barn. & 95. Sather Banking Co. v. Brigga
Cr. 14. Co., 138 Cal. 724, 72 Pac. 352.
See, also, Wills v. Hurst, 101 Tenn. 96. Title Guaranty & Surety Co. v.
656, 49 S. W. 740. Baglin, 178 Fed. 682, 102 C. C. A.
93. Corydon Deposit Bank v. Mc- 182, affirming Baglin v. Title Guar-
Clure, 140 Ky. 149, 130 S. W. 971. anty & Surety Co., 166 Fed. 356.
§ 124 SUKETYSIIIP AND GuAEANTY. 150
obligation. Thus, taking a mortgage from the principal debtor
as to which time is given for payment, but which is only collateral
security for the debt, and there being no agreement for a valuable
consideration to give time to the debtor personally, does not dis-
charge the sureties." A holder of a bill of exchange, by taking col-
lateral security of the drawer, not giving time, does not release the
endorser.^^ So if a second bond is given to the obligee merely as a
collateral security for the prior bond, such bond will not be deemed
extended, because that which is taken merely as collateral security
has time to run before it falls due.^^
So the taking of notes merely as eollateral will not release the
surety.^
Likewise, the acceptance of bonds from sub-contractors will not
operate as a discharge.^
On the other hand a creditor is under no obligation to accept
collateral security when oifered by the principal debtor and a re-
fusal to accept the same will not discharge the surety.^
Where a deed is given to a surety as an additional security suf-
ficient consideration is shown therefor where it appears that the
company has already advanced money in connection with the bond
and contract it secures.*
§ 124. Personal Judgment for Deficiency in Foreclosure. — It is
the rule that a judgment or decree against one of two or more joint
principals or sureties releases the others. A deficiency decree in
foreclosure proceedings is, in effect, a personal judgment upon the
note, and where the court renders judgment against one of several
makers, this extinguishes the creditor's, or mortgagee's right, as to
97. United States v. Hodge, 6 How. 1. Kingman-St. Louis Implement
(U. S.) 279, 12 L. Ed. 437; German Co. v. McMaster, 118 Mo. App. 685,
Savings Inst. v. Vahle, 28 111. App. 94 S. W. 819.
557; Brengle v. Bushey, 40 INId. 141; 2. Equitable Trust Co. v. Aetna
Burke v. Crurer, 8 Tex. 66. Indemnity Co. (U. S. C. C), 168 Fed.
98. Hurd v. Little, 12 Mass. 502; 433.
James v. Badger, 1 Johns. Cas. (N. 3. Berlin National Bank v. Guay
Y.) 131. (N. H. 1911), 81 Atl. 475, citing and
99. Merriman v. Barker, 121 Ind. quoting from Morrison v. Bank, 65
74, 22 X. E. 992; Remsen v. Graves, N. H. 253, 280, 20 Atl. 300, 303, 9 L.
41 X. Y. 471 ; Clarke v. Birley, 41 R. A. 282, 23 Am. St. Rep. 39.
Ch. D. 422. Compare Haubest v. 4. Empire State Surety Co. v. Bal-
Kraus, 4 Phil. 119. lou (Wash. 1911), 118 Pac. 923.
151 Dtschakgk of Surety. §§ 125, 126
the others. Even if the note is joint and several, and where it
may be sued severally, yet where all are sued as joint makers and
judgment is taken against one, the other makers, by this action,
are released.^ Thus, one who, though made a party defendant to
foreclosure proceedings, is a joint maker of the secured note, and
is not held in the deficiency decree, will be released, although as
between him and the party held by the judgment in the decree he
is liaible on the note, as surety.^
§ 125, Fraud — Extension of Time. — A fraud of the principal
debtor unknown to the creditor, extending the time, will not re-
lease the surety. Thus, where the maker of a promissory note pro-
cures its surrender and extension of time by giving a new note to
which he has forged the sureties' name, this will not discharge the
sureties on the surrendered note, because the note had never been
legally extended as to payment.^ But if the payee had discovered
the fraud, and holds the substituted note without informing the
sureties of the fraud, and they are injured, then their liability
ceases. In such case the creditor waives the fraud and holds new
note for the debt.^ So taking a note with forged indorsements, in
renewal of another note discounted at a bank, does not extinguish
the prior note, and, hence, the sureties on it are not discharged.^
§ 126. Fraud to Induce Surety to Sign Contract. — If the
surety is induced to sign a contract by fraud of the obligee, he is
not liable. If the creditor makes use of any artifice to deceive the
surety, and he is thereby deceived and signs the instrument, the
creditor cannot hold him liable.^** And so if the surety is induced
to become such by fraud perpetrated on him by the creditor, as by
false representations as to material facts, the surety is not liable.^^
5. Lawrence v. Beecher, 116 Ind. 8. Kirby v. Landis, 54 Iowa 150, 6
312, 19 N. E. 143. N. W. 173.
6. Travelers Ins. Co. v. Mayo, 170 9. Ritter v. Singmaster, 73 Pa. St.
lU. 498, 48 N. E. 917. 400.
7. Hubbard v. Hart, 71 Iowa 668, 10. Roper v. Sangamon Lodge, 91
33 N. W. 233. 111. 518; Ham v. Greve, 34 Ind. 18;
See, also, Wheeler v. Traders' De- Trammell v. Swan, 25 Tex. 473.
posit Bank, 107 Ky. 653, 55 S. W. 552, 11. Folmar v. Siler, 132 Ala. 297, 31
49 L. R. A. 315, and note. So. 719; Evans v. Keeland, 9 Ala. 42;
But see Red River National Bank Barnes v. Century Savings Bank,
V. Bray (Tex. Civ. App. 1911), 132 149 Iowa 367, 128 N. W. 541; Haworth
S. W. 968. V. Crosly & Henshaw, 120 Iowa 612.
§ 126 Suretyship and Guaranty. 152
If the creditor knows or has good grounds for believing that the
surety has been deceived or misled, or that he was induced to enter
into tlie contract in ignorance of facts materially increasing the
risks of which ho has knowledge, and he has an opportunity before
accepting his undertaking to inform him of such facts, good faith
and fair dealing demand that he should make such disclosure to
him. If he accepts the contract without doing so, the surety mav
afterwards avoid such execution of the instrumrent as a fraud. ^^
However, if there is nothing in the circumstxinces to indicate that
the surety is being misled or deceived, or that he is entering into
the contract in ignorance of facts materially affecting its risk, the
creditor is not bound to seek him out or, without being applied to,
communicate to him information as to facts within his knowledge.
In such case he may assume that the surety has obtained informa-
tion for his guidance from other sources, or that he has chosen to
assume the risks of undertaking, whatever they may be.^^
A surety or guarantor cannot interpose the fraudulent or false
representation of his principal as a defense to the payment of a
note, without connecting the payee with such representations,^^ iSo
misrepresentations made to induce a surety to sign a bond, that a
third person is to be a principal therein, if unknown to the obligee,
94 N. W. 1098; Bank of Monroe v. See §§ 140-142 herein, where this
Anderson Bros. Min. & Ry. Co., 65 subject is more fully considered.
Iowa 692, 22 N. W. 929; Waterbury 13. Bank of Monroe v. Anderson
V. Andrews, 67 Mich. 281, 34 N. W. Bros. Min. & Ry. Co., 65 Iowa 692, 22
575; Atlantic Trust & Deposit Co. v. N. W. 929; Graves v. Bank, 10 Bush
Union Trust & Title Corporation, (Ky.) 23; Railton v. Mathews, 10 CI.
110 Va. 286, 67 S. E. 182. & F. 934
A surety who read the instrument 14. Arkansas. — Stiewell v. Ameri-
cannot claim he was misled as to can Surety Co., 70 Ark. 512, 68 S. W.
the nature thereof. Bower v. Jones, 1021.
26 S. D. 414, 128 N. W. 470. Illinois.— Ladd v. Board, 80 111.
A statement that surety " took no 233.
risk " is not material. First Na- Indiana. — Lucas v. Owens, 113
tional Bank v. Johnson, 133 Mich. Ind. 521, 16 N. E. 196.
700, 95 N. W. 975, 10 Det. Leg. N. New York.— Dunfee v. Dunfee, 129
403. N. Y. Supp. 142.
12. Booth V. Storrs, 75 111. 438; Pennsylvania. — Rothermal v.
Ham V. Greve, 34 Ind. 18; Pidock v. Hughes, 134 Pa. St. 510, 19 Atl. 677.
Bishop, 3 Barn. & Cr. 605; Owen v. Virgrinia. — Atlantic Trust & De-
Homan, 4 H. L. Cas. 997; Hamilton posit Co. v. Union Trust & Title Cor-
T. Watson, 12 CI. & F. 109. poration, 110 Va. 286, 67 S. E. 182.
153
Discharge of Surety.
§ 120
will not defeat his right to recover against the sureties.'^ The
surety is not relieved if the false representations are made by a
third person. ^^ But in order to discharge a surety it is held not
necessary that the creditor have knowledge of the falsity of a rep-
resentation which he makes as a fact and by which he induces the
assumption of the relation." An innocent false representation
under such circumstances, which is the assertion of a mere opinion
or the existence of a fact not derived from investigation or made
under such circumstances as to suggest such derivation but enter-
tained and made through ordinary negligence, is immaterial.^*
The defense that false representations were made and that de-
fendant relied upon such representations and was induced to sign
as surety by reason of his belief in them is not destroyed by the
fact that he may have had knowledge of certain facts which might
have put him upon inquiry.^*
15. Stiewell v. American Surety
Co., 70 Ark. 512, 68 S. W. 1021.
" It is the business of the surety
to ascertain who the true principal
is and any false representations
made to induce hioi to sign the obli-
gation as to the principal, if un-
known to the obligee, will not de-
feat his right to recover against the
sureties." Williams v. Morris (Ark.
1911), 138 S. W. 464, citing Stiewell
V. American Surety Co., 70 Ark. 512,
68 S. W. 1021; Doane v. New Or-
leans, etc., Tel. Co., 11 La. Ann. 504;
Jacobs V. Curtis, 67 Conn. 497, 35
Atl. 501, 32 Cyc. 64.
Signature not made a precedent.
One who signs a bail bond as surety,
relying upon a representation that
another will also sign it as surety,
but who does not make such signa-
ture a condition precedent to the
delivery or taking effect of the bond,
cannot, after the instrument has
been filed and the prisoner released,
escape liability because such other
signature was not obtained. Sellers
V. Territory (Okla. 1911), 121 Pac.
228.
16. Brown v. Davenport, 76 Ga.
799 ; Soog v. State, 39 N. J. L. 135.
17. Milan Bank v. Richmond, 235
Mo. 532, 139 S. W. 352.
As to a holder in good faith, surety
held not released. Lovelace v. Love-
lace, 136 Ky. 452, 124 S. W. 400.
18. Brillion Lumber Co. v. Bar-
nard, 131 Wis. 284, 111 N. W. 483.
See Tolerton & Stetson Co. v.
Roberts, 115 Iowa 474, 88 N. W. 966,
as to a statement which is a misin-
terpretation of law.
19. Milan Bank v. Richmond, 235
Mo. 532, 139 S. W. 352, in which case
it was said: "Even in actions for
fraud and deceit, ' a man to whom a
particular and distinct representa-
tion has been made is entitled to
rely on the representation and need
not make further inquiry, although
there are circumstances in the esse
from which an inference inconsist-
ent with the representation might be
drawn.' " Per Blair, C, citing Kerr
on Fraud, 80; Cottrill v. Krum, 100
Mo. 405.
§ 127 SuKETTSIilP AND GUARANTY. 154"
Where a married woman signs a note at the request of her hus-
band and gives it to him it is held that she makes him her agent
to deliver it and is bound by the representations he made as her
agent.^"*
A discharge in bankruptcy under the Federal Bankruptcy Act
is held not to relievo against a liability incurred by obtaining a per-
son to act as surety by means of false and fraudulent representa-
tions."'
§ 127. Notice to Creditor of Principal Debtor's Dishonesty. —
In many cases a bond is given for the fidelity of the employee,
who becomes dishonest, which is known to the employer ; in such
case it is the employer's duty to inform the surety. If the em-
ployer continues the dishonest employee in his service without
giving notice to the surety, then the surety is not liable for any
loss arising from the dishonesty of the employee during his sub-
sequent service. But this rule has no application to cases of mere
breach of duty or contract obligations on the part of the employee,
not involving dishonesty on his part, or fraud or concealment on
the part of the employer.^^ The mere fact that the creditor had
knowledge that the employee, who was a collection agent, failed
to remit the money collected, does not impose upon the obligee
the duty to notify the surety.^^ It is a breach of good faith for the
employer or obligee to continue the servant in a place of trust
after discovering his dishonesty or defalcation, which is presump-
tively and in fact unknown to the surety, and without notifying
the surety of the fact, giving him an opportunity to elect as to
whether he will continue the risk.^*
20. Deering & Co. v. Veal, 25 Ky. New York. — Home v. Farrington,
Law Rep. 1809, 78 S. W. 886. 82 N. Y. 121.
21. Gaddy v. Witt (Tex. Civ. App. Virginia. — Richmond v. Kasey, 30
1911), 142 S. W. 926. Gratt. 218.
22. Alabama. — Saint v. "Wheeler & 23. Cumberland Building & Lean
Wilson Mfg. Co., 95 Ala. 362, 10 So. Ass'n v. Gibbs, 119 Mich. 318, 78 N.
539. W. 138; Aetna Ins. Co. v. Fowler,
Georpria.— Charlotte v. Gow, .59 Ga. 108 Mich. 557, 66 N. W. 470; Atlantic,
685. etc., Tel. Co. v. Barnes, 64 N. Y. 385.
Massaclinsetts. — Watertown F. 24. Connecticut Mut. Ins. Co. v.
Ins. Co. V. Simmons-, 131 Mass. 85. Scott, 81 Ky. 540; Phillips v. Foxall,
Minnesota. — Lancashire Ins. Co. v. L. R. 7 Q. D. 666.
Callahan, 68 Minn. 277, 71 N. W. 261.
155l Discharge of Surety. §§ 128, 129
§ 128. Negligence of Creditor in Not Availing Himself of the
Debtor's Means. — It is settled law that when a creditor has
means of satisfying the deht, either actually or potentially, in his
■control or within his possession as security, and he does not choose
to retain it and relinquishes it, the surety is discharged.^^ But
while a payee of a note j.s bound to use reasonable diligence in col-
lecting collateral securities it does not follow that he owes a duty
to the surety to immediately sell collateral property on maturity
of the note.^^ And so in some States, where the estates of a de-
ceased person is sufficient to pay all claims, the failure of a holder
of the decedent's note to file the same as a claim against the estate,
will operate to release the surety thereon." But this does not ap-
pear to be the general rule.^^
§ 129. Surety Signing Upon Condition. — A surety may sign
upon the understanding that certain conditions shall be performed
before he shall become liable ; and if the creditor knows of these
25. Illinois. — See Pfirshing v. Pet- corded and obtains priority releases
erson, 98 111. App. 70. surety. Hendryx v. Evans, 120 Iowa
Iowa.— Hendry v. Evans, 120 Iowa 310, 94 N. W. 853.
310, 94 N. W. 853. Directing sheriff not to proceed
Kentucky. — Mt. Sterling Imp. Co. with levy releases. Mt. Sterling
V. Cockrell, 24 Ky. Law Rep. 1151, 70 Imp. Co. v. Cockrell, 24 Ky. Law
S. W. 842. Rep. 1151, 70 S. W. 842.
Nebraska. — Pierce v. Atwood, 64 Failnre to file mortgage releases.
Neb. 92, 89 N. W. 669. Bennett v. Taylor, 43 Tex. Civ. App.
Pennsylvania. — Hutchinson v. 30, 93 S. W. 704.
Woodwell, 107 Pa. St. 509; Reed v. Fraudulent conduct on part of
Garvin, 12 Serg. & R. 100. creditor in respect to property of a
Texas. — Bennett v. Taylor, 43 Tex. principal who is insolvent releases.
Civ. App. 30, 93 S. W. 704. See Bruce First National Bank v. Wilbern, 65
V. Laing (Civ. App. 1901), 64 S. W. Neb. 242. 90 N. W. 1126, 93 N. W.
1019. 1002, 95 N. W. 12.
West Virginia. — First National Failure to file execution held not
Bank v. Kittle, (W. Va. 1911), 71 S. to release. Williams v. Kennedy
E. 109. 134 Ga. 339, 67 S. E. 821.
Wisconsin. — Pauly Jail Building 26. Timmons v. Butler, Stevens &
& Mfg. Co. V. Collins, 138 Wis. 494, Co. (Ga. S. C. 1912), 74 S. E. 784.
120 N. W. 225. 27. Waughop v. Bartlett, 165 111.
See § 130 as to surrendering s«- 124, 46 N. E. 197.
curity. 28. Jackson v. Benson, 54 Iowa
Negligent delay in obtaining sher- 654, 7 N. W. 97; Moore v. Gray, 26
iff's deed so that a mortgage is re- Ohio St. 525.
I 129 Suretyship and Guaranty. 156
conditions, and they are not fulfilled, the surety is discliarged.^^
And so a guarantor signing a guaranty of the payment of a draft
or bill, has the right to impose as a condition to its acceptance, or
binding force on him, that a certain other person named shall be-
come his co-guarantor, and the acceptance by the obligee with
notice of the condition will create no liability on such guaranty if
the condition is not performed.^" Because in such cases of guar-
anty or suretyship, the surety can sign upon condition, and if such
condition is known to the obligee, he takes the instrument and is
a party to the contract, and a contract exists between him and the
surety that it shall be fulfilled before he becomes liable; if not
fulfilled the surety is discharged.^^ And where a surety, though
a company for compensation, specifies in the contract the condi-
tions upon which it will be liable and makes them conditions pre-
cedent to the obligee's right of recovery, such conditions when not
fraudulent or unconscionable are upheld by the courts and must be
alleged and proven before the obligee can recover.^^ But in the
absence of notice or knowledge on the part of the payee of a note,
no agreement among the sureties that if all are not bound none
are to be, will affect the right of the payee.^^
29. Georgia, — Jones v. Keer, 30 was necessary to make the required
Ga. 93. number of signers, but that he
Illinois. — Cunningham v. Wreen, would not be liable, but that the
23 111. 64. maker was to pay the note does not
Missouri. — Linn County v. Farris, make him not liable as surety. Rowe
52 Mo. 75. V. Bowman, 183 Mass. 488, 67 N. E.
Ohio.— Clay v. Edgerton, 19 Ohio 636.
St. 549. 30. Belleville Sav. Bank v. Born-
Pennsylrania.— Caldwell v. Heit- man, 124 111. 200, 16 N. E. 210.
shu, 9 Watts & S. 51. 31. Rhode v. McLean, 101 111. 467;
South Dakota.— State v. Welbes, 12 Hull v. Parker, 37 Mich. 590; Benton
S. D. 339, 81 N. W. 629. v. Martin, 52 N. Y. 570; Lovell v.
Texas. — Milliken v. Callahan, 69 Adams, 5 Humph. 133; Gibbs v. John-
Tex. 205, 6 S. W. 681. son, 63 Mich. 671, 30 N. W. 343;
See further in this connection §§ Miller v. Stem, 12 Pa. St. 383.
50, 51, herein. 32. National Surety Co. v. Schnei-
A i)arol agreement of the principal dermann (Ind. App. 1911), 96 N. E.
will not release a surety on contract 955; Knight & Jillson Co. v. Castle,
required to be in writing. Willis v. 172 Ind. 97, 87 N. E. 976, 27 L. R. A.
Fields, 132 Ga. 242, 63 S. E. 828. (N. S.) 573.
A statement of a surety that he 33. Hess v. Schaffner (Tex. Civ.
would sign a note if his signature App. 1911), 139 S. W. 1024.
15 7i Discharge of Surety. § 130
Where a surety on a note refuses to consent to a further exten-
sion or renewal of the note unless one who had signed it as co-
surety with him will change his relation to that of co-maker,
which he does, he will not be permitted to deny, his so signing
having induced the extension, his liability on the note.^*
§ 130. Surrendering Security. — The right of a surety does not
depend upon the contract, but upon the equities arising out of the
circumstances of the case, and the creditor is affected by knowledge
of the true relation of the debtors acquired at any time before he
does the act which alters the position of the surety ; and one who
makes a promissory note for the accommodation of another is a
surety within this rule.^* Hence, if the creditor has taken a lien
on property for the debt, or has taken the property of the prin-
cipal for the benefit of himself and surety, and then releases the
lien or gives up the property without the consent of the surety,
the surety is discharged to the extent of such lien or property.^®
The wrongful surrender by the obligee in the bond of security
for the performance of the guarantied obligation, without the
knowledge of the surety, discharges him from liability therefor
entirely or pro tanto, according to the value of the security thus
surrendered." So the surety is entitled to collateral security re-
ceived by the creditor from the principal debtor, and if the credi-
34. Donald v. First National Bank 63 N. E. 427; Baker v. Briggs, 8 Pick,
of Commerce (Miss. 1911), 54 So. 122.
721, holding that the cancellation of Minnesota, — Gotzian & Co. v.
the old note by the renewal and the Heine, 87 Minn. 429, 92 N. W. 398.
extension effected by the new note Missouri. — Lakenan v. North Mis-
was a sufficient consideration. souri Trust Co., 147 Mo. App. 48, 126
35. Bradford v. Hubbard, 8 Pick. S. W. 547.
(Mass.) 155. PennsjiTania. — Neff's Appeal, 9
36. United States. — American Watts & S. 36.
Bonding Co. v. Pueblo Inv. Co., 150 Tennessee. — Hoss v. Crouch (Tenn.
Fed. 17, 80 C. C. A. 97. Ch. App. 1898), 48 S. W. 724.
Illinois. — Kirkpatrick v. Howk, 80 Texas. — Irion v. Yell (Civ. App.
111. 122; Rogers v. Turstees, 46 111. 1910), 132 S. W. 69.
428 . See § 128 as to negligence <-f cred-
lowa. — Bank of Monroe v, Grif- itor in not availing himself of
ford, 79 Iowa 300, 44 N. W. 558. debtor's means.
Massachusetts. — See Boston Penny 37. American Bonding Co. v. Pu-
Sav. Bank v. Bradford, 181 Mass. 199, eblo Inv. Co., 150 Fed. 17, 80 C. C. A.
97.
I 131 SUKETYSHIP AND GUARANTY. 158
tor, knowing the relations between the debtors, surrenders part
of such property or security without the consent of the surety,
the surety is discharged to that extent, although the relation of
debtor and creditor does not appear on the face of the debt,"^** be-
cause the surety is entitled to be subrogated to all the rights and-
securities of the creditor.^^ And an unauthorized payment to the
principal of the proceeds of a sale of property mortgaged to secure
the debt will discharge the surety/" And if in releasing the col-
lateral or a lien a material alteration is made in the contract, the
surety is absolutely released.''^ ' But the surety is not discharged
by the act of the creditor in releasing the security, to which the
principal debtor had no title,''^ or where at the time he signed to
an instrument as surety he had knowledge of the release of col-
lateral held by the principal as security."
§ 131. Taking Property by Attachment and Execution. — The
creditor can acquire possession of property by attachment or by
levy of execution, and when he has thus acquired possession, he
should not afterwards in any manner relinquish the same or con-
sent to a course of proceedings that will have that effect ; and if
he does so the surety will be discharged to the extent correspond-
ing with the value of the property released." But when the exe-
cution creates no lien upon the property, if no levy is made, the
delay of the creditor to have it levied will not release the surety.**
38. Guild V. Butler 127 Mass. 386. 323; Sherraden v. Parker, 24 Iowa
39. Cummings v. Little, 45 Me. 28; Mt. Sterling Imp. Co. v. Cockrell,
183; Saline Co. v. Brice, 65 Mo. 63; 24 Ky. Law Rep. 1151, 70 S. W. 842;
Bangs V. Strong, 4 N. Y. 315; Hodg- Templeton v. Shakley, 107 Pa. St.
son V. Shaw, 3 Mylne & K. 183. 370.
40. Lakenan v. North. Missouri 45. Georgia. — Crawford v. Gaul-
Trust Co., 147 Mo. App. 48, 126 S. W. den, 33 Ga. 173.
547. Indiana. — Jerauld v. Trippet, 62
41. Polak V. Everett, 1 Q. B. D. Ind. 122.
6G9; Watts v. Shuttleworth, 7 Hurl. Lousiana. — Manice v. Duncan, l2
& N. 353. La. Ann. 715.
42. First Nat. Bank of Cumberland New Hampshire. — Morrison v. Citi-
V. Parsons, 45 W. Va. 688, 32 S. E. zens' National Bank, 65 N. H. 253, 20
271. Atl. 300.
43. Sapiro v. Sisley, 125 N. Y. Texas. — Brown v. Chambers, 63
Frpp. 467. Tex. 131; Hunter v. Clark, 28 Tex..
44. Maquoketa v. Willey, 35 Iowa 163.
159 DiSCHAKGE OF SuRETY. § 132
"But if the execution, as soon as issued,, becomes a lien upon the
property, then the surety is released, if the creditor abandons the
proceedings, to the amount which could be realized by the iavy
and sale of the property/*^
Where the statute does not intervene, the liability of the surety
is not changed by the insolvency and discharge of the principal in
the bond." So when the attachment has gone to judgment, and
then the principal is discharged in bankruptcy or insolvency, the
surety is still liable*^ because the bond is not affected by con-
tingencies which might have destroyed the attachment if no bond
had been given.^^ But an execution levied upon property, the
sale of which would bring no returns, may be abandoned without
discharging the surety.""
§ 132. Failure to Apply Securities. — The delay in applying-
securities, or not applying them at all, may discharge the surety.
So when the creditor recovers a judgment against the debtor and
surety, and execution is levied upon the principal's property, and
then the creditor releases such property, or his lien is negligently
lost, the surety is discharged to extent of the value of such prop-
erty ;^^ loss of securities by the negligent act of the creditor releases
the surety to the extent of such loss.^^ It is the duty of a creditor
to deligently guard and protect effects in his hands for the security
of his debt.^''' So where a creditor receives notes, mortgages, or
property, in pledge for a debt, such securities must be regarded as
an indemnity to the creditor, and to the person who may have be-
come bound as surety for the original debt, and the surety has the
46. Robeson v. Roberts, 20 Ind. 155. See §§ 213 et seq.
47. Gass V. Smith, 6 Gray (Mass.) 51. Hendryx v. Evans, 120 Iowa
112. 310, 94 N. W. 853; Mt. Sterling Imp.
48. Rosenthal v. Perkins, 123 Cal. Co. v. Cockrell, 24 Ky. Law Rep.
240, 55 Pac. 804; Bernheimer v. 1151, 70 S. W. 842; Hubbell v. Car-
Charak, 170 Mass. 179, 49 N. E. 81; penter, 5 Barb. (N. Y.) 520; Day v.
McCombs v. Allen, 82 N. Y. 114; Ramey, 40 Ohio St. 446; Dixon v.
Easton v. Ormsby, 18 R. I. 309, 27 Ewing, 3 Ohio 280.
Atl. 216. 52. Barrett v. Bass, 105 Ga. 421, 31
49. Bernheimer v. Charak, 170 S. E. 435.
Mass. 179, 49 N. E. 81. 53, Ellis v. Conrad-Seipp Brewing
50. Moss V. Pittinger, 3 Minn. 217; Co., 207 111. 291, 69 N. E. 808, afflrm-
Moss V. Craft, 10 Mo. 720; Com- ing 107 111. App. 139.
mercial Bank v. Bank, 11 Ohio 444.
I 133i Suretyship and Guarajjty. 160
right to exact of the creditor proper care and diligence in the man-
agement and collection of the collaterals, and any waste or misap-
plication of the collateral security will operate as a release of the
surety to the amount of the loss actually sustained.^*
§ 133. Release of Co-surety. — Co-sureties are liable to con-
tribution among themselves, and so a discharge of one of them
from his obligation, if the others are not discharged, will not re-
lease him from the liability to contribute for their indemnity.^
Where the release of one of several co-obligors shows upon its face,
in connection with the surrounding circumstances, that it was the
intention of the parties not to release his co-ofcligors, such inten-
tion will be carried out.^^ So in relation to sureties ; and a receipt
by the creditor to a surety of one-half of the amount due on a joint
and several bond, does not release the other surety, but he is liable
for only one-half of the original debt." That is, when the obliga-
tion of the sureties is joint and several, the discharge of one of them
does not release the others from payment of their proper propor-
tion of the debt.^^ Thus, where one of two sureties is released from
liability, it relieves the other surety from liability for one-half of
the debt, that being the proportion which the surety who is re-
leased would have to pay as between himself and his co-surety, had
he not been released.^® But when the debt is joint, the release of
one joint debtor discharges the others, and extrinsic evidence will
not be admitted to explain the contract as a covenant not to sue.®"
54. Phares v. Barbour, 49 111. 379; 57. Schock v. Miller, 10 Pa. St.
Hall V. Hoxsey, 84 111. 616; Crim v. 401.
Fleming, 101 Ind. 154; Bank of Mon- 58. Glasscock v. Hamilton, 62 Tex.
roe V. Gifford, 79 Iowa 300, 44 N. W. 143.
558; Black River Bank v. Page, 44 59. Louisiana. — Gosserand v. La-
N. Y. 453. Coiir, 8 La. Ann. 75.
55. Clapp V. Rice, 15 Gray (Mass.) Ohio.— Walch v. Miller, 51 Ohio St.
5.57. 462, 38 N. E. 381; Ide v. Churchill,
See § 120 as to giving time to one 14 Ohio St. 372.
or more sureties. Pennsylvania. — Klingensmith v.
Dismissal of suit against heirs of Klingensmith, 31 Pa. St. 460.
one surety does not discharge the Virginia. — Waggoner v. Dyer, 11
others. Carlton v. Krueger, 54 Tex. Leigh 384.
Civ. App. 48, 115 S. W. 619, 1178. Wisconsin.— Hallock v. Yankey,
Examine Wilkinson v. Conley, 133 102 Wis. 41, 78 N. W. 156.
Ga. 518, 66 S. E. 372. See Hunter v. First National Bank,
56. Parmaler v. Lawrence, 44 111. 172 Ind. 62, 87 N. E. 734.
405; Moore v. Stan wood, 98 111. 605. 60. Clark v. Mallory, 185 111. 227,
56 N. E. 1099.
161
DiSCHAKGE OF SuKETY.
§ 164:
§ 134. Failure of Creditor to Sue Principal. — Mere forbear-
ance or indulgence bj a creditor to sue a principal will not release
the surety. Because the surety is not put to any hazard by for-
bearance of the creditor, as he has it in his power to protect him-
self. He may either pay the debt, and thus become subrogated to
the rights of the securities of the creditor, or he may compel the
creditor to sue. Mere delay in enforcing the debt against the prin-
cipal without fraudulent connivance between the maker and payee,
does not release the surety ; otherwise if there is an agreement on
a new consideration for an extension.^^ And the surety is not dis-
charged by the creditor's act in agreeing to continue the suit
against the principal where the surety is not actually prejudiced
thereby. ^^
But generally if by some valid enforceable agreement between a
61. Grier v. Flitcroft, 57 N. J. Eq.
556, 41 Atl. 425.
Where delay does not release:
California. — Sather Banking Co. v.
Briggs Co., 138 Cal. 724, 72 Pac. 352;
Bull V. Coe, 77 Cal. 54, 18 Pac. 808.
Illinois.— Field v. Brokaw, 148 111.
€54, 37 N. E. 80; Villars v. Polner,
67 111. 204.
Maryland. — Bank v. State, 62 Md.
88.
Minnesota. — Board of Com'rs of
St. Louis County v. Security Bank of
Duluth, 75 Minn. 174, 77 N. W. 815.
Nebraska. — Bell v. Walker, 54 Neb.
222, 74 N. W. 617; Eickhoff v. Eicken-
bary, 52 Neb. 332, 72 N. W. 308.
New York. — Burfeind v. People's
Surety Co., 139 App. Div. 762, 124 N.
Y. Supp. 385.
North Dakota. — Yerxa v. Ruthruff,
19 N. D. 13, 120 N. W. 758.
South Carolina. — Fretwell v. Car-
ter, 83 S. C. 553, 65 S. E. 829.
Tennessee. — Marshall v. Hudson,
9 Yerg. 58.
The surety could not, at common
law, be discharged by failure of the
payee to sue, and the plea setting up
such defense was necessarily with-
out merit. Baumgartner v. McKin-
11
non (Ga. App. 1912), 73 S. E. 519,
citing ThomaS' v. Clarkson, 125 Ga.
78, 54 S. E. 77, 6 L. R. A. (N. S. )C5S.
Delay short of the statutory period
of limitation in enforcing the bond
against the principal will not re-
lease the sureties. Clinton County
V. Smith (Mo. S. C. 1911), 141 S. W.
1091.
Compare People v. Whittemore,
253 111. 378, 97 N. E. 683, as to statute
of limitations not running against
surety.
A payment by the principal stops
the statute of limitations as to the
surety, not for the reason that one
is principal and the other is surety,
but because both are usually joint
promisors; that is, the surety is af-
fected by the act of his principal in
his capacity as a joint promisor.
Clinton County v. Smith (Mo. S. C.
1911), 141 S. W. 1091.
Failure of creditor to sue within
time stipulated in contract held not
to release surety. Marshalltown
Stone Co. v. Louis Drach Const. Co.,
123 Fed. 746 (IT. S. C. C.) ; Bart-
lett V. Illinois Surety Co., 142 Iowa
538, 119 N. W. 729.
62. Eichkoff v. Eichenbary, 52 Neb,
§ 139 Suretyship and Guaranty, 162
creditor and the principal the former is disabled from bringing a
suit against the latter, a surety cannot be held liable.*"^
An indorser of a note is held to be a surety within a statute per-
mitting a surety to give notice to the creditor or obligee and pro-
viding that in case of a failure of the latter to bring suit the surety
shall be released.''*
§ 135. Disaffirmance of Contract by Principal. — Principals un-
der disability may disaffirm their contract when the disability is
removed. The general rule is that where a party becomes surety
for an infant or other party under disability, he is bound, though
his principal is not.^^ But to this rule there are exceptions. Thus,
when the principal has the right to disaffirm the contract, and re-
turns the consideration received under it, the surety is thereby dis-
charged.*® And so a surety upon a promissory note of a minor is
not liable thereon, where the minor, upon attaining his majority,
disaffirms the contract and returns the property for the purchase
price for which the note was given."
§ 136. Fraud Upon the Principal. — The right of the surety
to plead that the contract of his principal was procured by fraud
is a question upon which the courts are divided. Many courts hold
that the plea is personal to the principal, while others sustain the
right of the surety to maintain such defense. 'So in some States
sureties cannot plead duress or fraud upon their principal in dis-
charge of their liability.''^ On the other hand, it is held that the
defense that a contract was fraudulent as to the principal may be
pleaded by the surety.**
332, 72 N. W. 308; First Nat. Bank of Baker v. Kennett, 54 Mo. 82; Patter-
Cumberland V. Parsons, 45 W. Va. son v. Cone, 61 Mo. 439.
688, 32 S. E. 271. 67. Keokuk County State Bank v.
63. Bauschard Co. v. Fidelity & Hall, 106 Iowa 540, 76 N. W. 832;
Casualty Co. of New York, 21 Pa. Baker v. Kennee, 54 Mo. 82.
Super. Ct. 370. 68. Plummer v. People, 16 111. 358;
G4. Williams v. Ogg & Keith Lum- Peacock v. People, 83 111. 331 ; Rob-
ber Co., 42 Tex. Civ. App. 558, 94 S. inson v. Gould, 11 Cash. (Mas3.) 55 r
W. 420. Thompson v. Lockwood, 15 Johns.
6*>. Jones v. Crossthwait, 17 Iowa (N. Y.) 259.
393; Allen v. Berryhill, 27 Iowa 534. As to duress, see § 32 herein.
66. Keokuk County State Bank v. 69. Fisher v. Shattuck, 17 Pick.
Hall, 106 Iowa 540, 76 N. W. 832; (Mass.) 252; Osborn v. Bobbins, 36:
163 Discharge of Surety. §§ 137-138
§ 137. Substitution of Securities. — A surety is not released
by the substitution by the creditor of one collateral security for an-
other, when made in good faith, apparently for the benefit of all
ooncernedJ^ Thus, the release of part of certain real estate in or-
der to make a title to one who purchases it for full value, upon
condition that the purchase money should be applied to the ex-
tinguishment of a mortgage that was a prior lien upon the whole
estate, does not release the surety because the transaction bettered
his condition,''^ So the surrender of a life policy held as collateral,
upon receipt of its present value, after the principal had become
bankrupt, and it is doubtful whether he could keep up the policy,
does not discharge the surety.^^ So where a creditor releases a levy
on property of the principal debtor, worth $90, in consideration
of an order worth $100, that could not have been reached by exe-
cution, it does not discharge the surety, because he is benefited
by the transaction.^^ And so the diversion of securities which re-
sults in no injury to the surety does not affect his liability for pay-
ment of the debt, if the accompanying right of subrogation would
be of no value.^*
§ 138. Payment of Consideration in Installments — Building
Contracts. — Where a building contract is paid in installments,
the installments must be made as stipulated, and not in advance.
Thus, a surety on a building contract, where the principal is to be
paid in installments, will be discharged if the principal is paid
faster than the contract provides.^^ So by paying a party an in-
stallment before it is due under the contract, the ow.ner of the
building discharges the surety of the contractor from his obliga-
tions.'® Such payment is prejudicial to the surety, because it di-
minishes the security which the owner had and which he should
N. Y. 365; Strong v. Grannis, 26 74. Blydenburgh v. Bingham, 38
Barb. (N. Y.) 122; Griffith v. Sit- N. Y. 371.
greaves, 90 Pa. St. 161. 75. General Steam Nav. Co. v. Rolt,
70. State Bank of Lock Haven v. 6 C. B. (N. S.) 550; Calvert v. Dock
Smith, 155 N. Y. 185, 49 N-. E. 680. Co., 2 Keen 638.
71. Neff's Appeal, 9 Watts & S. As to building contracts, see, also,
(Pa.) 36. §§ 112 et seq. herein.
72. Coates v. Coates, 33 Beavan 76. Welch v. Hubchmitt Building
249. & Woodworking Co., 61 N. J. L. 57,
73. Thomas v. Cleveland, 33 Mo. 38 Atl. 824.
126.
§ 139 Suretyship and Guaeanty. 164
have availed himself of to the benefit of the surety, and heuce,
the surety is damaged to the amount of the payment in advance,
and therefore discharged." So in building contracts, if the con-
tractor is paid in advance instead of by installments as the work
progresses the sureties are thereby discharged.^^ But it is held
if the sureties can receive no injury from an advanced payment
they are not discharged ; as where the owner of the new build-
ing loans the contractor money and takes his due bill, and pays
money to him for materials as soon as delivered, and then makes
a settlement at the time of the first payment and takes back the
due billJ^
'And a delay in paying an installment due on such a contract
has been held not to discharge the surety, such delay not being in
pursuance of any agreement.^'^
§ 139. Tender of Payment. — When the principal at maturity
of the debt, tenders the amount due to the creditor, who refuses
it, this discharges the surety,^^ and such tender need not be kept
good nor paid into court.^^ And so if the surety tenders payment
and the creditor refuses it, he is discharged and need not keep
the tender good.*^
77. Village of Chester v. Leonard, 79. Hand Mfg. Oo. v. Marks, 36
«8 Oonn. 495, 37 Atl. 397. Ore. 523, 52 Pac. 512, 59 Pac. 549.
78. United States. — Board v. Bran- See, also, Cochran v. Baker, 34
ian, 57 Fed. 179. Ore. 551, 52 Pac. 520, 56 Pac. 641.
California. — Bragg v. Shaw, 49 Cal. 80. Bagnell v. American Surety
131. Co., 102 Mo. App. 707, 77 S. W. 327.
Minnesota. — Simon&on v. Grant, 81. Lee v. Manley, 154 N. C. 244,
36 :Minn. 439. ''^ S. E. 385; Smith v. Old Dominion
Missonri. — Evans v. Graden, 12a Building & Loan Ass'n, 119 N. C. 257,
Mo. 72, 28 S. W. 439. 26 S. E. 40.
Nebraska. — Gray v. School Dist. of 82. Smith v. Old Dominion Build-
Norfolk, 35 Neb. 438, 53 N. W. 377. ing & Loan Ass'n, 119 N. C. 257, 26
Nevada. — Carson, etc., Ass'n v. S. E. 40; Mitchell v. Roberts, 17 Fed.
Miller, 16 Nev. 327. 776.
Texas. — Ryan v. IMorton, 65 Tex. 83. O'Connor v. Morse, 112 Cal. 31,
258. 44 Pac. 305; Solomon v. Reese, 34
Washington. — Peters v. Mackay, Cal. 36; Hayes v. Josephi, 26 Cal.
20 Wash. 172, 54 Pac. 1122. 535.
"Wisconsin. — Cowdery v. Hahn,
105 Wis. 455, 81 N. W. 882.
16& Rights of Surety as to Ceeditoe.
CHAPTER VI.
Rights and Remedies of Surety as to Creditoe.
Section 140. The Contract in General.
141. Diligence of Surety.
142. Facts Concealed — Not Connected with the Contract.
143. Facts Developed Subsequent to the Contract,
144. Set-off and Recoupment.
144a. Notice of Default.
145. Compelling Creditor to Bring Suit.
146. Effect of Notice by Surety to Creditor to Proceed to Collect
Debt.
147. Creditor's Promise to Look to the Principal Only.
148. Creditor Informing the Surety that the Debt is Paid.
149. Surety May Compel Creditor to Resort to Securities in the
Creditor's Hands.
150. Right of Surety to Defend Action Brought Against His
Principal.
151. Subrogation of Creditor to Surety's Securities.
152. Subrogation of Surety to Creditor's Rights.
153. What Securities the Surety is Entitled to Claim.
154. When Surety Can Take Securities.
155. Stranger Paying Debt.
156. When Surety Will Not Be Subrogated.
157. Surety Must First Pay the Debt.
158. What is Payment.
159. Debtor and Creditor.
160. Fraudulent Conveyances of PrincipaJ.
161. As to Exemptions of Principal. ,
162. When Surety Owes Principal.
163. Payment of a Specialty or Judgment.
164. Extent of Subrogation.
165. Surety of a Surety.
166. Co-sureties.
167. Joint Debtors.
168. Successive Sureties in Judicial Proceedings.
169. Guarantors.
170. Surety's Defense — In Courts of Equity or of Law.
171. Remedies of Creditor.
172. Death of Principal.
173. Debt Barred Against the Principal.
Sec. 140. The Contract in General. — One who becomes surety
for another must ordinarily be presumed to do so upon the belief
that the transaction between the principal parties is one accru-
§ 141 Suretyship and Guaranty, 16S
ing in the usual course of business of that description, subjecting
him only to risks attending it. The principal debtor is presumed
to know that such will be his undertaking, and that he will act
upon it unless he is informed that there are some extraordinary
circumstances affecting the risk. To receive a surety known to
be acting upon the belief that there are no unusual circumstances
by* which his risk will be materially increased, well knowing that
there are such circumstances, and having a suitable opportunity
to make them known and withholding such information, is a legal
fraud by which the surety will be relieved from his contract.^ If
the person giving the credit makes use of any artifice to throw the
surety off his guard and lull him into a false security, and he is
thereby deceived to his detriment, he will be discharged.^
If the creditor knows or has good ground for believing that the
surety is being deceived or misled, or that he was induced to enter
into the contract in ignorance of facts materially increasing his
risks, of which the creditor has knowledge, and he has the oppor-
tunity before accepting the undertaking to inform him of such
facts, good faith and fair dealing demand that he should make
such disclosure, and if the creditor accepts the contract without
doing so, the surety may afterwards avoid it.^
§ 141, Diligence of Surety. — If the surety before becoming^
such applies to the creditor for information relating to the risk
about to be assumed, the creditor, if he answers at all, must dis-
close all the facts which he knows in that regard ; and he can do
1. Franklin Bank v. Cooper, S6 Me. surety to sign contract; § 125 as to
179; Soo V. State, 39 N. J. L. 135. fraud; extension of time.
2. Illinois. — Roper v. Sangamon 3. Illinois. — Booth v. Storrs, 75 111.
Lodge, 91 111. 518. 438.
Indiana. — Taylor v. Lohman, 74 Indiana. — Ham v. Greve, 34 Ind.
Ind. 418. 18.
Ohio. — Smith v. Joslyn, 40 Ohio St. Iowa. — Bank of Monroe v. Ander-
409. son Bros. Min. & Ry., 65 Iowa 692. 22
PennsylTania.— Wayne v. Bank, 52 N. W. 929.
Pa. St. 250. Maine. — Franklin Bank v. Stev-
England. — Railton v. Matthews, 10 ens, 39 Me. 542.
CI. & F. 934; Lee v. Jones, 17 C. B. England.— Hamilton v. Watson, 12
(N. S.) 482. CI. & F. 109.
See, also, cases cited in next sec- See, also, cases cited in next sec-
tion, tion.
See § 126 as to fraud to induce
167i Rights of Surety as to CBEDiToa. § 141
nothing to deceive or mislead the surety without violating the
agreement. Whether a creditor is bound to volunteer disclosures
to one about to become a surety, depends upon circumstances of
the case. If there is nothing in the circumstances to indicate
that the surety is being misled or deceived, or is ignorant of facts
materially affecting the risk, the creditor is not bound to seek
the surety and inform him of the facts. But if he knows, or has
good ground to know, that the surety is being deceived, or has
entered into the contract in ignorance of such facts, and has an
opportunity to disclose them to the surety before accepting the
obligation, he must do so, or the surety may afterwards avoid the
■contract if he has used due diligence.*
4. United States. — Title Guaranty PennsylTania. — Court Vesper No.
& Surety Co. v. Baglin, 178 Fed. 682, 69, Foresters of America, v. Fries, 22
102 C. C. A. 182, affirming Baglin v. Pa. Super. Ct. 250.
Title Guaranty & Surety Co. (U. S. Texas. — United States Fidelity &
C C), 166 Fed. 356; American Guaranty Co. v. Means & Fulton
Surety Co. v. Lawrenceville Cement Iron Works (Tex. Civ. App. 1910),
Co., 107 Fed. 717. 132 S. W. 536.
Iowa. — Barnes v. Century Savings' Wiscousiu. — St. Paul Title &
Bank, 149 Iowa 367, 128 N. W. 541; Trust Co. v. Sabin, 112 Wis. 105, 81
Bank of Monroe v. Anderson Bros. N. W. 1109.
Min. & Ry. Co., 65 Iowa 692, 700, 22 England.— Pidock v. Bishop, 3
N. W. 929. Barn. & C. 605; Stone v. Compton, 5
Kentucky. — Winter, Jr., & Co. v. Bing. N. C. 142.
Forrest, 145 Ky. G. A. 581, 140 S. W. See, also, cases cited in preceding
1005; Sebold v. Citizens' Deposit section.
Bank, 31 Ky. Law Rep. 1244, 105 S. Whether a creditor is bound be-
W. 130; Fehr Brewing Co. v. Mulli- fore accepting the undertaking of
can, 23 Ky. Law Rep. 2100, 66 S. W. the surety and without being applied
627. to by him for information on the
Maine. — Franklin Bank v. Cooper, subject to inform him of facts with-
39 Me. 542. in his knowledge which increase the
Maryland. — Wright v. German risks of the undertaking depends on
Brewing Co., 103 Md. 377, 63 AtL the circumstances of the case. If
807. there is nothing in the circumstancegi
Michigan. — First National Bank v. to indicate that the surety is being
Johnson, 133 Mich. 700, 95 N. W. 975, misled or deceived, or that he is
10 Det. Leg. N. 403. entering into the contract in ignor-
New Mexico. — Putney v. Schmidt ance of the facts materially affect-
(N. M. 1911), 120 Pac. 720. ing its risks, the creditor is not
North Dakota, — Aetna Indemnity bound to seek him out, or, without
Co. v. Schroeder, 10 N. D. 110, 95 N. being applied to, communicate to
W. 436. him information as to the facts with-
§ 141
SUEETYSHIP AND GuABANTY.
16&
So although the obligee in a fidelity bond should if aware of
secret facts materially affecting and increasing the obligation of
the sureties disclose the same to the latter, a proper opportunity
being presented, yet it is said that sureties should on the other
hand give to the obligee the opportunity to make such disclosures
if they want the protection of the law and that until such oppor-
tunity is given it must be presumed, and conclusively presumed,
that the sureties are entitled to act upon their own initiative or
such information as the obligor gives them.^
It is the duty of the surety to look out for himself, and to as-
certain the nature of the obligations embraced in the undertak-
ing f and so the creditor is not bound to inform the surety of the
insolvency of the principal.^
in his knowledge. But in such case
he may assume that the surety has
obtained information for his guid-
ance from other sources, or that he
has chosen to assume the risks of
the undertaking, whatever they may
be. But if he knows, or has grounds
for believing, that the surety is
being deceived or misled, or that he
was induced to enter into the con-
tract in ignorance of facts materi-
ally increasing the risk, of which he
has knowledge and he has an op-
portunity before accepting his un-
dertaking to inform him of such fact,
good faith and fair dealing require
that he should make such disclosure
to him; and, if he accepts the con-
tract without doing so, the surety
may afterwards avoid it. Bank of
Monroe v. Anderson Bros. Min. &
Ry. Co., 65 Iowa 692, 700, 22 N.
W. 929, per Reed, J., quoted in
Barnes v. Century Savings Bank, 149
Iowa 367, 128 N. W. 541; Putney v.
Schmidt (N. M. 1911), 120 Pac. 720.
Must give full information in an-
STver to inqniry. A creditor who
assumes to answer an inquiry of
one who contemplates becoming a
surety touching any matter ma-
terially affecting the risk of the un-
dertaking should give full informa-
tion of facts within his knowledge.
Barnes v. Century Savings Bank, 149
Iowa 367, 128 N. W. 541; Putney v.
Schmidt (N. M. 1911), 120 Pac. 720.
Where an indebtedness of a bank
cashier to the bank was not disclosed
to the surety the latter was held not
to be released. Ida County Savings
Bank v. Seidenstick, 128 Iowa 54,
102 N. W. 821.
Concealment as to character of
principal, an agent of obligee, see
Wright v. German Brewing Co., 103
Md. 377, 63 Atl. 807.
Personal habits of agent need not
be disclosed. Aetna Indemnity Co.
V. Schroeder, 12 N. D. 110, 95 N. W.
436.
N^on-disclosnre of loss of property
of one of makers of note to surety
on reversal of same held not to re-
lease latter. First National Bank
V. Johnson, 133 Mich. 700, 95 N. W.
975, 10 Det. Leg. N. 403.
5. Winter & Co. v. Forrest (Ky.
C. A. 1911), 140 S. W. 1005.
6. Casoni v. Jerome, 58 N. Y. 321.
7. Roper v. Sangamon Lodge, 91
111. 518; Ham v. Greve, 34 Ind. 18;
1691 Rights OF SuKETY AS TO Creditor. §§ 142,143
§ 142. Facts Concealed — Not Connected With the Contract. —
In order that a faihire to communicate facts by the creditor to
the surety in respect to the subject-matter of the proposed con-
tract should have the effect of fraud upon the surety and vitiate
the contract, it must be of facts which necessarily have the effect to
increase the responsibility or operate to his prejudice.^ To vitiate
a bond on the ground of fraud by the obligee, there must be a
fraudulent concealment or something material for the surety to
know.® The law simply requires from the obligee to the surety
upon the bond good faith and fair dealing.
§ 143. Facts Developed Subsequent to the Contract. — In the
case of a continuing guaranty for the undertaking of a servant,
if the master discovers acts of dishonesty in the servant, and after-
wards continues him in his service without notice to the surety,
the latter is discharged as to further dishonesty, from the time of
discovery.'*' The employer impliedly stipulates that he will
not knowingly retain such clerk or agent in his service after
a breach of the guaranty justifying his discharge, and if he re-
tains him after such breach, the surety will not thereafter be
liable.^^ But it is said that mere passiveness on the part of the
creditor in not enforcing his remedy will not of itself discharge
the surety ; nor will failure or negligence to give notice to the
surety of the principal's prior default. The creditor under such
circumstances is not bound to anticipate inquiry by disclosure. ^^
Farmers & Drovers' Nat. Bank v. zens' Deposit Bank, 31 Ky. Law
Braden, 145 Pa. St. 473, 22 Atl. 1045. Rep. 1244, 105 S. W. 130.
Insolvency of principal — Answer 8. Comstock v. Gage, 91 111. 328;
— Demurrer. The obligee is held to Bostwick v. Van Voorhis, 91 N. Y.
be under no obligation to voluntar- 353.
ily announce to the surety the fact 9. Atlas Bank v. Brownell, 9 R. I.
that his principal is insolvent. So 168.
a demurrer to an answer alleging 10. Phillips v. Foxall, L. R. 7 Q.
that the plaintiff knew of the prin- B. 666; Enright v. Falvey, 4 L. R.
cipal's insolvency at the time the Jr. 397; Sanderson v. Osten, L. R.
note was taken for it, that if he had 8 Ex. 73.
communicated such fact to the de- 11. Rapp v. Ins. Co., 113 111. 390;
fendant before he signed the note Dinsmore v. Tidhall, 34 Ohio St. 411.
he would not have signed it and 12. Pickering v. Day, 3 Houst.
that the plaintiff thereby practiced (Del.) 474, 533; Peel v. Tatlock, 1
a fraud upon him, was held to be Bos. & P. 419.
properly sustained. Sebald v. Citi-
g 144- Suretyship and Guaranty, 170
Mere forbearance by the creditor to the principal, however,
prejudicial to the surety, will not discharge him. The same rule
applies to sureties for officers of corporations. It is not the duty
of the corporation to give notice to the sureties of the principal's
failure to make returns for money received and disbursed.^^
^ 144. Set-off and Recoupment. — The decisions are conflicting
as to whether the surety can set off against the creditor a debt
due by the creditor to the principal. In many cases it is held that
this can be done. Thus, it is held that whatever defense by way
of recoupment will avail the principal will also avail the surety."
The rule is that demands cannot be set off unless they are mutual
and between the two parties to the action ; that is, that a joint debt
cannot be set off against a separate debt, nor a separate debt
against a joint debt. But an exception is made in an action
against the principal and his surety. So a claim of the principal
against the creditor may be set off.^^ But other decisions hold that
the surety alone cannot set off a claim of the principal against
the creditor, because in such case it is the right of the principal
to set up a set-off if sued, or bring his separate action, and the
surety cannot make the election for the principal or do anything
to impair his right of recovery in a separate action.^^
13. Massaclnisetts. — Watertown New Hampshire. — Concord v.
Ins. Co. V. Simmons, 131 Mass. 85. Pillsbury, 33 N. H. 310.
Pennsylvania. — Pittsburg, etc., R. New York. — Loring v. Morrison,
R. Co. V. Shaeffer, 59 Pa. St. 350. 15 App. Div. 498, 44 N. Y. Supp. 526.
Virginia. — Richmond, etc., R. R. Pennsylvania. — Holllster v. Davis,
Co. V. Kasey, 30 Gratt. 21. 54 Pa. St. 508.
Tennessee. — Mayor v. Kennett, 12 Vermont. — Downer v. Dana, 17 Vt.
Lea 700. • 518.
England. — Orme v. Young, 1 Holt England. — Bechervaise v. Lewis,
K. P. 84. L. R. 7 C. P. 372.
14. Waterman v. Clark, 76 111. Unliquidated damages arising
428; McHardy v. Wadsworth, 8 from breach of a separate contract
Mich. 350. between the plaintiff and the maker
15. Alabama. — Cole v. Justice, 8 of a note may be set off under the
Ala. 793. provisions of the Georgia Civ. Code
Illinois.— Himrod v. Baugh, 85 111. 1895, §§ 3746, 3747. Pickett v. An-
435; Hayes v. Cooper, 14 111. App. drews, 135 Ga. 299, 69 S. E. 478.
490. 16. Graff v. Kahn, 18 111. App. 485;
Nebraka. — Van Etten v. Koster, 48 Citizens' Stock Bank v. George, 150
Neb. 152, 66 N. W. 1106. Mo. 1, 51 S. W. 489; Gillespie v. Tor-
I7li Rights of Surety as to Cbeditok. § 144a
But it is held that insolvency of one of the parties is sufficient
ground, in equity, for an allowance of set-oif; and though one of
the parties seeking the set-oJff be a surety for the other, equity
will adjudge it in favor of both against a demand collectible of
both/^
If the principal debtor be a party to the action against a surety,
and the former is insolvent, the surety may set off against the
debt sued on, a debt due from his creditor to the principal debtor.
And if the action be against the surety alone, the principal may
intervene for the purpose of defeating the recovery by the credi-
tor, and for that purpose may set off a debt due him from the
creditor/^ And the principal who is insolvent cannot collect a
debt which the surety owes him without indemnifying the surety.
He may use his liability to the principal as an equitable set-off
.against his debt to the principal.^*
§ 144a. Notice of Default. — It is said that a surety is obli-
gated to know the defaults of his principal and that notice thereof
is unnecessary in the absence of a statute or provision of the con-
tract requiring it.^'^ Frequently, however, if not generally, it is
a provision of a bond that notice shall be given of the default of
the principal within a certain time after such default,^^ or " im-
rance, 25 N. Y. 306; Phoenix Iron See also following cases as to no-
"Worksi V. Rhea, 98 Tenn. 461, 40 S. tice being necessary.
W. 482. 21. Arkansas. — Jones v. Gaines, 92
17. Smith V. Felton, 43 N. Y. 419; Ark. 519, 123 S. W. 667 (building
Coffin V. McLean, 80 N. Y. 560. contractor's bond).
See Kinzie v. Riley's Exr., 100 Va. Connecticut. — City of New Haven
709, 42 S. W. 872, holding can not v. Eastern Pav. Brick Co., 78 Conn,
set off damages for breach of war- 517, 63 Atl. 517 (contractor's bond),
ranty. Georgia. — James v. Calder, 7 Ga,
18. Becker v. Northway, 44 Minn. App. 707, 67 S. E. 1125 (check) ; Con-
61, 46 N. W. 210. nor v. Hodges, 7 Ga. App. 153, 66 S.
19. Tuscumbia v. Rhodes, 8 Ala E. 546 (note).
206; Merwin v. Austin, 58 Conn. 22 Kentucky. — Fritts v. Kirchdorfer
18 Atl. 1029; Walker v. Dicks, S(- (Ky. 1910), 124 S. W. 882 (note).
N. C. 263 ; Scott v. Timberlake, 83 N. New Hampshire.— Cilley v. Dear-
C. 382; Fearle v. Dillard, 5 Leigh born, 75 N. H. 563, 78 Atl. 496
(Va.) 30. (note).
20. Linton v. Chestnutt-Gibbons Ohio. — Dienst v. Fleischmanu
Grocer Co., (Okla. 1911) 118 Pac. Loan & Building Co., 30 Ohio Cir.
385. Citing Pingrey, Suretyship, § 2.
144a
Suretyship and Guaranty.
172^
mediately," which is construed as meaning within a reasonable
time.^^
Such a provision is a reasonable one '^ and compliance there-
with a condition precedent to liability.^*
So where a bond given in connection with a building contract
requires a notice of default by the contractor to be given to the
Ct. R. 537 (bond of attorney; exam-
ination of title).
Oklahoma. — Chicago Crayon Co.
V. Rogers (Okla. 1911), 119 Pac. 630.
PennsylTania. — McKelvy v. Berry,
21 Pa. Super. Ct. 276 (note).
Sufticienej of notice under statute.
See Williams v. Ogg & Keith Lum-
ber Co., 42 Tex. Civ. App. 558, 94 S.
W. 420; decided under article 3811,
tit. 84, Rev. St. 1895; Edmonson v.
Potts Adm'r, 111 Va. 79, 68 S. E. 254,
decided under Code 1904, § 2890.
See the following cases:
Georgia. — Aetna Indemnity Co. v.
Town of Comer (Ga. 1911), 70 S. E.
676; Scarratt v. Cook Brewing Co.,
117 Ga. ISl, 43 S. E. 413.
Indiana. — Knight & Jilson Co. v.
Castle, 172 Ind. 97, 87 N. E. 976.
Kentucky. — Illinois Surety Co. v.
Garrard Hotel Co. (Ky. 1909), 118
S. W. 967.
Minnesota. — Hormel & Co. v.
American Bonding Co., 112 Minn.
288, 128 N. W. 12.
Pennsjirania. — McCreery v. Na-
tional Surety Co., 226 Pa. 450, 75 Atl.
674; In re Byer's Estate, 205 Pa. 66,
54 Atl. 492.
Texas. — United States Fidelity &
Guaranty Co. v. Means «6; Fulton
Iron Works (Civ. App. 1910), 132
S. W. 536.
Virginia. — Granite Bldg. Co. v.
Scoville's Admr., 101 Va. 217, 43 S.
E. 351.
Washington. — Lazelle v. Empire
State Surety Co., 58 Wash. 589, 109
Pac. 195.
Technical liolations held not to
be breaches requiring notice. La-
velle V. Empire State Surety Co., 58
Wash. 589, 109 Pac. 195.
Sureties who by the terms of a
contract for public work may in
case the work is abandoned assume
the contract and do the work or
relet it will be held to have waived
such right where after receipt of
the notice of abandonment they fail-
ed to offer the work completed. And
the fact that the public authorities
notified the surety that they would
have the work done by another con-
tractor does not deprive them of
their right under the contract to
complete the work if they desire to
do so. Nick Peay Const. Co v. Mil-
ler (Ark. 1911), 139 S. W. 1107.
22. Empire State Surety Co. v.
Hanson, 184 Fed. 58, 107 C. C. A. 1;
National Surety Co. v. Long, 125i
Fed. 887, 60 C. C. A. 623; Fidelity
& Deposit Co. of Maryland v. Rob-
ertson, 136 Ala. 379, 34 So. 933;
Eorcigalupi v. Phoenix Bldg. &
Const. Co. (Cal. App. 1910), 112 Pac.
892; Thomason v. Keeney, 8 Ga.
App. 852, 70 S. E. 220.
Mailing notice eleven days after
default is not a compliance. Na-
tional Surety Co. v. Long, 125 Fed.
887, 60 C. C. A. 623.
23. Granite Bldg. Co. v. Saville's
Admr., 101 Va. 217, 43 S. E. 351.
24. Knight & Jilson Co. v. Castle,
172 Ind. 97, 87 N. E. 976.
173 Eights of Surety as to Creditok. § 144a
surety within a designated number of days after such default, a
failure to give the notice will release the surety. Such a provi-
sion is a reasonable one and is said to be as binding upon the
owner as the obligation to pay is upon the surety.^*
Where a building contract provides for the completion of the
building on a certain day and for the payment of a certain sum
per day as liquidated damages for failure to complete within such
time and it is provided by the bond that immediate notice shall
be given of the contractor's failure, neglect or refusal to do or per-
form any matter or thing " at the time specified," it is held that
the day upon which the building is to be completed is the time
specified for the completion of the contract and that the obligee
is not required to anticipate the possible default of the contractor
and notify the company before such date, especially in view of
the provision as to liquidated damages. In such a case notice
within a reasonable time has been held sufficient.^^
A provision in a note that " the sureties agree to be liable with-
out notice, so long as there is any liability of the principal, al-
though the bank may grant extensions from time to time for the
payment of all or any part of this note," is not a limitation of lia-
bility of the sureties, but an agreement in advance that the time
for payment may be extended without discharging them from lia-
bility, and a discharge of the principal in bankruptcy does not
relieve them from liability.^^
Inability to serve a demand and notice on one of two sureties
will not release the other surety from his obligation where by the
contract there was no provision that the sureties should be served
with notice of default and under its terms there was a liability
existing against them at the time of the default and the question
of notice concerned merely the time at which they agreed to pay,
which was immediately upon a presentation of an itemized state-
ment of the damages.^^
25. United States Fidelity & Guar- Pac. 67, holding that a notice sent
anty Co. v. Rice, 148 Fed. 206, 78 C. in four days from date specified for
C. A. 164; Beech Grove Improve- completion was a sufficient compli-
ment Co. V. Title Guaranty & Surety ance with the terms of the bond.
Co. (Ind. App. 1912), 98 N. E. 373. 27. Wolfboro Loan & Bankine Co. v.
See also National Surety Co. v. Rollins, 195 Mass. 323, 81 N. E. 204.
Long, 125 Fed. 887, 60 C. C. A. 623. 28. News-Times Pub. Co. v. Doo-
26. Routt V. Dils, 40 Colo. 50, 90 little (Colo. S. C. 1911), 118 Pac. 974.
§ 145 SUKETYSIIIP AND GuAEANTY. l74r
§ 145. Compelling Creditor to Bring Suit. — The creditor is
imder an eqiiital)le ol)ligation to obtain payment from the principal
if he is able to pay the debt. And equity will interpose for a
good cause shown to compel the creditor to sue the principal be-
fore resorting to the surety.'^ But this action on the part of the
surety is limited ordinarily to cases where his character as surely
stands upon the face of the instrument itself; and also where he
agrees to indemnify the principal, and also offers to pay whatever
the principal may fail to pay under such procedure.^'^ So, where
the statute does not control, and the debt has become payable, the
surety may file a bill in equity to compel the creditor to proceed
against the principal for payment of the debt, and thereby relieve
himself against liability.^^
In some States it is provided by statute that by service of writ-
ten notice upon the creditor the surety can compel him to sue the
principal, and if the creditor fails to comply with the notice, the
surety is discharged.^^ But the surety cannot relieve himself from
liability by requiring the creditor to sue the principal only where
the cause of action has accrued against the principal.^^ And such
statute is only applicable to contracts in writing, binding the
surety, and not to contracts of suretyship arising from implica-
tion.^^ And the notice to sue must be delivered to the creditor in
person, and not to his agent.^^ And where there are two or more
sureties a notice under the statute to sue given by one surety in his
own behalf will not operate to discharge another surety who does
not join him in the notice.^®
29. Wise V. Shepherd, 13 111. 41; a provision. Rich v. Warren, 135
Huey V. Pinney, 5 Minn. 310; King Ga. 394, 69 S. E. 573.
V. Baldwin, 17 Johns. (N. Y.) 384. 33. Imming v. Fiedler, 8 111. App.
30. In re Babcock, 1 Story 398. 256.
31. Irick V. Black, 17 N. J. Eq. 34. Pish v. Glover, 154 111. 86, 39
189; Kidd v. Hurley, 54 N. J. Eq. N. E. 1081.
177, 33 Atl. 1057; King v. Baldwin, 35. Bartlett v. Cunningham, 85 IlL
17 Johns. (N. Y.) 384. 22.
32. Barnes v. Sammons, 128 Ind. 36. Arkansas. — Wilson v. Teb-
596, 27 N. E. 747. betts, 29 Ark. 579.
Accommodation maker of note Illinois. — Trustees v. Southard, 3i
who signs as principal maker can- 111. App. 359.
not as against a bona fide holder Kentucky. — Letcher v. Yantes, 3
without notice avail himself of such Dana 160.
17SJ Rights of Surety as to Creditor. § 146
§ 146. Effect of Notice by Surety to Creditor to Proceed to
Collect Debt. — It is provided in many States that a written no-
tice from the surety to the creditor, after the debt is due, to pro-
ceed forthwith against the principal, will discharge the surety if
the creditor fails to heed and act upon such notice." And in some
States such notice is not required by statute, but the effect is the
same.^^
The notice, in order to discharge the surety, must be clear and
explicit, so that the creditor can fully understand its meaning.
The notice must be positive that he will consider himself dis-
charged unless the suit is brought,^^ and collection to be made by
due process of law.'*^ x\nd where it is provided by law that a
surety if he desires to expedite payment may give notice, in writ-
ing, to the creditor to proceed to collect the debt after which a
failure to act in a certain time will discharge the surety, an oral
demand or request to so act is insufficient.^^
If the principal is a non-resident at the time the notice is given,
euch notice does not discharge the surety.^^ If the creditor is ig-
norant of the residence of the principal upon receiving notice to
Lonisiana. — Barrow v. Shields, 13 Ohio. — Clark v. Osborn, 41 Ohio
La Ann. 57. St. 28.
Missouri. — Routan v. Lacey, 17 38. Rawson v. Beekman, 25 N. Y.
Mo. 399. 552; Denick v. Hubbard, 27 Hun 347;
Pennsjiyania. — Klingensmith v. McCullom v. Hinckley, 9 Vt. 143;
Kllngensmith, 31 Pa. St. 460. Wetzel v. Sponsler, 18 Pa. St. 460;
Vermont. — Alford v. Baxter, 36 Vt. Thompson v. Watson, 10 Yevg.
158. (Tenn.) 362; Fidler v. Hershy, 90
37. United States.— Ross v. Jones, Pa. St. 363.
22 Wall. 576, 22 L. Ed. 730. 39. Fidler v. Hershy, 90 Pa. St.
Alabama. — Hightower v. Ogletree, 363; Savage v. Carleton, 33 Ala. 443;
114 Ala. 94, 21 So. 934. Bates v. Bank, 7 Ark. 394; Porter v.
Georgia. — Timmons v. Butler, First Nat. Bank, 54 Ohio St. 155, 4S
Stevens & Co. (Ga. S. C. 1911), 74 N. E. 165.
S. E. 784. 40. Goodwin r. Simonson, 74 N. Y.
Illinois. — Imming v. Fiedler, 8 111. 133; Kaufman v. Wilson, 29 Ind.
App. 256. 504.
Indiana. — Barnes v. Sammons, 128 41. Timmons v. Butler, Stevens &
Ind. 596, 27 N. E. 747. Co. (Ga. S. C. 1912), 74 S. E. 784.
Iowa. — Graham v. Rush, 73 Iowa 42. Phillips v. Riley, 27 Mo. 386;
451, 35 N. W. 518. Rowe v. Buchtel, 13 Ind. 38; Conk-
Missouri. — Langdon v. Markle, 48 lin v. Conklin, 54 Ind. 289 ; Hightow-
Mo. 357. er v. Ogletree, 114 Ala. 94, 21 So.
934.
§ 147 Suretyship and Guaiianty. 176
sue from the surety, it is his duty to use reasonable diligence to
ascertain such residence/^ In some States, notice given to the
creditor will not release the surety, though the principal after-
wards becomes insolvent. The surety's remedy is to pay the debt
himself and then sue the principal."
§ 147. Creditor's Promise to Look to the Principal Only. — A
parol promise of the creditor to the surety, after the debt is due that
he will exonerate the surety and look to the principal only, will
discharge the surety,"*^ on the ground that the surety, by reason
thereof, omits to pay the debt and fails to secure himself, or he
may change his position.^"' If at any time the creditor makes an
absolute promise to look to the principal alone for the payment,
and the surety, in reliance on that promise, surrenders securities
held for indemnity, or is induced to omit to procure security, or
otherwise changes his position with reference to the principal, he
is thereby discharged.^^
But the creditor's mere statement to the surety that the debtor's
responsibility was sufficient security for the debt, and that the
surety was not to be called upon, will not estop the creditor from
resorting to the surety, if the claim was not renounced and the
surety was not misled to his disadvantage.*^ Because such declara-
tions are made to be received as expressions of opinion. They
neither invite confidence, nor is confidence ever reposed in them.
Standing alone they will not discharge the surety.''^
But when the surety is released by such express promise, the
principal still remains liable for the whole debt.^'' The liability of
the principal is not changed by release of the surety. Thus, a
43. Cox V. Jeffries, 73 Mo. App. 47. Whitaker " Kirby, 54 Ga. 277;
412. Bank v. Haskell, 51 N. H. 116.
44. Smith v. Freyler, 4 Mont. 489; 48. Mich. State Ins. Ck). v. Soule,
Hefferlin v. Krieger, 19 Mont. 123, 51 Mich. 312, 16 N. W. 662; Adams
47 Pac. 638; Pintard v. Davis, 21 N. v. Gregg, 2 Starkie 53.
J. L. 632. 49. Driskell v. Mateer, 31 Mo. 235;
45. Harris v. Brooks, 21 Pick. Barney v. Clark, 46 N. H. 514; Bru-
(Mass.) 195. baker v. Okeson, 36 Pa. St. 519.
46. Thornburg v. Madren, 33 Iowa 50. Mortland v. Hines, 8 Pa. St.
380; Wolf V. Madden, 82 Iowa 114, 265.
47 N. W. 981; West v. Brison, 99 Mo.
694.
177i Eights of Surety as to Creditor. §§ 148, 150
surety on a promissory note may 'buy his discharge and leave in
full force the original debt against the principal."^
§ 148. Creditor Informing the Surety That the Debt is Paid. —
When the creditor gives notice to the surety that the principal
has paid the debt, and such surety in consequence changes his
situation, as by surrendering securities or forbearing to obtain se-
curity when he might, or otherwise has sustained loss, he is dis-
charged, though the debt was not paid, and such notice was by mis-
take and without fraudulent design. It is a mistake made at the
peril of the creditor,"" and works on the principle of estoppel.
§ 149. Surety May Compel Creditor to Resort to Securities in
the Creditor's Hands. — At law a surety will be compelled to pay
the debt, and after that look to the collaterals of his principal for
indemnity ; but in equity, if there be circumstances from which it
appears directly or hy reasonable inference that substantial injury
or prejudice will not result to the creditor by the enforcement, in
the first instance, of the surety's right, and have the debt paid from
the principal's property, the surety may in case of hardship com-
pel the creditor to resort to the securities in the creditor's hands
or under his control, the property of the principal, in satisfaction
of the debt before coming upon him,''^ or compel the creditor to
make the debt from the principal who is financially able to pay.^*
§ 150. Right of Surety to Defend Action Brought Against His
Principal. — Sureties are allowed, when it is necessary for their
own protection, to defend an action brought against their principal.
iSo if a judgment against the principal is irregularly obtained, the
sureties will bo heard, if they apply in time, on motion to set it
51. Mcllhenney v. Blum, 68 Tex. 112 Fed. 901, 50 C. C. A. 602; Kidd
197, 4 S. W. 367. v. Hurley, 54 N. J. Eq. 177, 33 Ajtl.
52. Alabama.— Waters v. Creagh, 1057; Philadelphia R. R. Co. v. Lit-
4 Stewv & P. 410. tie, 41 N. J. Eq. 519, 7 Atl. 356.
Georgia. — Whitaker v. Kirby, 54 See Storn v. Bicket, 31 Misc. R.
Ga. 277. (N. Y.) 683, 66 N. Y. Supp. 79, affirm-
Kentucky.— Brooking v. Bank, 83 ed 62 App. Div. 617, 71 N. Y. Supp.
Ky. 431. 1149.
Massachusetts. — Baker v. Briggs, 54. Beaver v. Beaver, 23 Pa. St.
8 Pick. 122; Carpenter v. King, 9 167; Dobie v. Fidelity and Casualty
Met. 511; Dewey v. Field, 4 Met. 381. Co., 95 Wis. 540, 70 N. W. 482.
53. Brown v. First National Bank,
12
§ 151 Suretyship and Guaeanty. 178
aside, and let in to defend the original action.^^ So a guarantor
or surety may go into court after suit is begun against the prin-
cipal and demand rcasonahle protection. And if the creditor de-
stroys their claim against the principal with a view of falling back
upon them, they will be discharged.^**
§ 151. Subrogation of Creditor to Surety's Securities. — When
the debtor has given security to his surety for the indemnity of the
latter only, the creditor is entitled to the benefit of the same by
proceedings commenced in equity after the debt is due, before the
surety has, in good faith, surrendered or discharged such security."
The right of the creditor is derived through, and not independent
of, the surety, and the creditor seeking to enforce his claim against
the surety is, in equity, entitled to subject to the payment of his
debt the security then subsisting for the personal indemnity of the
surety to the same extent that the surety would have, had he dis-
charged the debt. There is no element of trust in such security in
favor of the creditor until he has taken proper steps to subject it to
the payment of his claim. And until the creditor has taken such
steps the surety has a right to release such security.^^ Whether a
creditor can avail himself of the security given to the surety by
the debtor, depends upon the purpose for which it is given. If
the security be purely personal to indemnify the surety, the cred-
itor cannot have the benefit of such security until the surety is
actually damnified, or, at least, has become absolutely liable for
the debt, for the creditor must claim through the surety by subro-
or>. Jewett V. Whitman, 35 Barb. Bank v. Wright, 45 Neb. 23, 63 N. W.
(N. Y.) 208. 126.
56. Stark v. Fuller, 42 Pa. St. 320. New Jersey.— Meyers v. Campbell,
'57. United States.— Swift & Co. v. 59 N. J. L. 378.
Kortrecht, 112 Fed. 709, 50 C. C. A. ]Vew York.— Phillips v. Thompson,
429; Russell v. Clark, 7 Cranch 69, 2 Johns. Ch. 418.
3 L. Ed. 271. England.— Wright v. Morley, 11
Connecticut. — Jones v. Bank, 29 Ves. 22.
Conn. 25. A subcontractor is not entitled to
Iowa. — Rankin v. Wilson, 17 Iowa be subrogated to collateral taken to
463. indemnify the contractor's surety.
Massachusetts. — Eastman v. Fos- American Surety Co. v. Lawrence-
ter. 8 Met. 19. ville Cement Co. (U. S. C. C), 110
Missouri. — Haven v. Foley, 18 Mo. Fed. 717.
136. 58. Poole v. Lowe, 24 Colo. 475, 52
Nebraska. — South Omaha Nat. Pac. 741.
1791 Rights of Surety as to C'reditor. § 151
gation, and until then the surety has no remedy upon the security.^^
If the security is given for the better security of the debt itself,
as for its payment by the principal debtor, or to provide the surety
with means to pay the debt in case of default, then, although the
purpose is to indemnify the surety to the same extent, a trust at-
taches to the security for the benefit of the creditor, to which the
court will give effect.^"
Where collateral security is placed by the principal in the hands
of his surety to secure performance of a contract or to provide a
fund for the payment of damages occasioned by its breach the law
raises an implied trust in favor of the creditor which on maturity
of his debt he may enforce whether the surety has been damnified
or not and irrespective of the question whether the surety or prin-
cipal or either are insolvent.^^ Thus, where a mortgage is given
by a debtor to his surety for a better security of his debt, or to
provide the surety with means to pay it, in case of the debtor's
default, then, although the purpose is to indemnify the surety, a
trust attaches to the mortgage for the 'benefit. of the creditor which
the courts will enforce.^^
In some States it is held in order to make such security avail-
able to the creditor in any case, it must be conditioned for the pay-
ment of the debt, to be enforced on default in its payment. ^^
"When the security is given by a stranger to indemnify the
surety, and not for the payment of the debt, a trust does not attach
to it for the creditor, and he cannot be subrogated to the rights of
59. Chambers v. Prewitt, 172 111. New York. — Moses v. Murgatroyd,
615, 50 N. E. 145; Ohio Life Ins. Co. 1 Johns. Ch. 119.
V. Reader, 18 Ohio St. 40. South Carolina. — Rouss v. King,
60. Connecticut.— Homes v. Bank, 74 S. C. 251, 54 S. E. 615.
7 Conn. 484. Yermont.— Pavis v. Hulett, 26 Vt.
Illinois.— Chambers v. Prewitt, 172 308.
111. 615, 50 N. E. 145. 61. People v. Metropolitan Surety
Indiana.- Plant v. Storey, 136 Ind. Co., 148 App. Div. (N. Y.) 503, 132
46. N. Y. Supp. 829.
Massachusetts. — Eastman v. Fos- 62. Chambers v. Prewitt, 172 111.
ter, 8 Met. 19; Aldrich v. Blake, 137 615, 50 N. E. 145.
Mass. 584. 63. Poole v. Doster, 59 Miss. 258;
Missouri. — First National Bank v. Clay v. Freeman, 74 Miss. 816, 20
Davis, 87 Mo. App. 242. So. 871.
Nebraska. — Meeker v. Waldron, 62l
Neb. 689, 87 N. W. 539.
I 152' SUKETYSHIP AJND GUARANTY. 180
the surety f* nor is the rule changed because the security was given
by the wife of the principal, for she is a stranger to the debt.*^'*
If the creditor is secured also by a mortgage on the surety's
property, the other creditors of the surety cannot compel the se-
cured creditor lirst to exhaust the remedies against the principal,
before resorting to the mortgaged premises of the surety.^®
§ 152. Subrogation of Surety to Creditor's Rights. — The
surety may be subrogated to the rights of the creditor under cer-
tain circumstances. If the surety has paid the debt of the prin-
cipal, he may be subrogated to all the securities, liens, equities,
rio-hts, remedies and priorities held by the creditor against the
principal, and he is entitled to enforce them against the latter in
a court of equity, or of equitable jurisdiction."
64. Hampton v. Phipps, 108 U. S. Massachnsetts. — Rice v. Southgate,
260, 2 Sup. Ct. 662, 27 L. Ed. 719; 16 Gray 142.
Taylor V. Farmers' Bank, 87 Ky. 398, Minnesota.— Dick v. Moon, 26
9 S. W. 240; Leggett v. McClelland, Minn. 309, 4 N. W. 39.
39 Ohio St. 624. Wisconsin. — Storts v. George, 150
65. Taylor v. Farmers^ Bank, 87 Mo. 1, 51 S. W. 489; Hackett v.
Ky. 398, 9 S. W. 240; Leggett v. Mc- Watts, 138 Mo. 502, 40 S. W. 110.
Clelland, 39 Ohio St. 624. Nebraska.— First National Bank v.
66. Webber v. Webber, 109 Mich. Wilbern, 65 Neb. 242, 90 N. W. 1126,
147, 66 N. W. 960. 93 N. W. 1002, 95 N. W. 12; Wil&on
67. Arkansas.— Kisslre v. Plun- v. Busey, 8 Neb. 39.
kett-Jarrell Grocer Co. (Ark. 1912), New Jersey.— Receivers of New
145 S. W. 567; Bank of FayettevlUe Jersiey Midland Ry. Co. v. Worten-
V. liorwein, 76 Ark. 243, 88 S. W. dyke, 27 N. J. Eq. 658.
919, New York. — Sternbach v. Fried-
Illinois.— Lochenmeyer V. Fogarty, man, 34 App. Div. 534, 54 N. Y. Supp.
112 111. 572; Wliitbeck v. Ramsey, 74 608.
111. App. 524. Pennsylvania. — Dorscheimer v,
Indiana.— Frank v. Taylor, 130 Bucker, 7 Serg. & R. 9.
Ind. 145, 29 N. E. 486. Texas. — Wilson v. Phillips, 27 Tex.
Iowa.— Gilbert v. Adams, 99 Iowa 543; Bell v. Campbell (Civ. App.
519, 68 N. W. 883; Keokuk v. Love, 1912), 143 S. W. 953.
31 Iowa 119. Virginia. — Rorer v. Ferguson, 96
Kansas. — Bartholomew v. First Va. 411, 31 S. E. 817.
Nat. Bank, 57 Kan. 594, 47 Pac. 519. West Virginia.- Meyers v. Miller,
Kentucky.— Willingham v. Ohio 45 W. Va. 595, 31 S. E. 976.
Nat. Banking & Trust Co., 22 Ky. Sureties for the performance of a
Law Rep. 708, 56 S. W. 906, 57 S. W. contract for the construction of a
467. building which is destroyed by fire
181i Rights of Surety as to Cileditoe. § 152i
The right of a surety, upon his discharge of the obligation, to
mortgage security held by the creditor is not an independent right
but derivative from the creditor upon the equitable principle of
subrogation.^* But the surety cannot ordinarily claim the right
to subrogation until he has paid the whole debt.^^ And this right
of subrogation arises out of the contract of suretyship, and is con-
summated when the surety pays the entire debt."'*
'So the indorser of five notes given for the purchase price of
land who had paid three of them to the holder was held not en-
titled to enforce a vendor's lien on the land as against the holder of
the other two notes until they were also paid.^^
The surety is entitled to all the securities if necessary to pay
the debt, and any person with notice who takes such securities
is hound in equity to hold them for the indemnity of the surety,
and is subject to all equities which the surety could originally en-
force ;^^ but, of course, the surety must first pay the debt, and then
he can enforce the securities held by the creditor ;" and the surety
has a right to exact of the creditor proper care and diligence in
the management and collection of such collaterals, and any waste
or misapplication of them will operate as a release of the surety
to the amount of loss actually sustained.^*
The equitable right of a surety to subrogation to mortgage se-
curity held hy the creditor cannot be enforced so as to interfere
before its completion are entitled to See also Kissire v. Plunkett-Jar-
an allowance of any benefits received rell Grocer Co. (Ark. 1912), 145 S.
by the owners by reason of their W. 567.
appropriating to their own use after 72. Atwood v. Vincent, 17 Conn.
the fire any foundation or materials 575; Stevens v. Cooper, 1 Johns. Ch.
remaining of said building and fur- (N. Y.) 430; Lichenthaler v. Thomp-
nished by such sureties. Bell v. son, 13 Serg. & R. (Pa.) 157; Drew
Campbell (Tex. Civ. App. 1912), 143 v. Lockett, 32 Beav. 499.
E. W. 953. 73. Brick v. Banking Co., 37 N. J.
68. Kissire v. Plunkett-Jarrell L. 307.
Grocer Co. (Ark. 1912), 145 S. W. 74. Rogers v. Trustees, 46 111. 428;
567. Pfirshing v. Peterson, 98 111. App.
69. Bartholomew v. First Nat. 70; Lokenan v. North Missouri Trust
Bank, 57 Kan. 594, 47 Pac. 519. Co. (Mo. App. 1910), 126 S. W. 547;
See §§ 154, 157, herein. Pierce v. Atwood, 64 Neb. 92, 89 N.
70. Wayland v. Tucker, 4 Gratt. W. 669.
(Va.) 268. See in this connection §§ 128, 130.
71. Bank of Fayetteville v. Lor- 132 herein,
^ein, 76 Ark. 245, 88 S. W. 919.
§§ 153, 154 SUEETYSHIP AND GuABANTY. 182
with the rights of the mortgage creditor, whose equities are superior
to those of the surety, for the reason that the mortgage is given to
him and not to the surety."^
§ 153. What Securities the Surety is Entitled to Claim. — The
general rule is that, in equity, a surety is entitled to the benefit
of securities which the creditor holds against the principal, per-
taining to the identical debt.'*^ Thus, where a party is a surety
for a partnership and for one of the partners individually, he has
no right to apply the funds or securities received for the partner-
ship to the payment of the debts of the individual." The debt and
the parties must be identical, and the securities be those pledged
for the debt by the principal debtor; then on payment of the debt,
the surety can be subrogated to the rights of the creditor.'^ And
where the holder of a note with knowledge that another person had
signed it as surety and that the principal had executed a chattel
mortgage to secure the debt allowed the principal to remove the
mortgaged property from the state, he thus permitted the surety
to be deprived of the right to pay the debt and be subrogated to
the rights of the holder against the principal on the mortgage. By
such act the surety is discharged.'^
^ 154, When Surety Can Take Securities. — The surety is a
creditor from the time he becomes surety; and when he pays the
debt a cause of action for reimbursement arises for substitution
to the securities held by the principal creditor. His right becomes
immediately consummate to have the securities applied to his pay-
ment.^*' Thus, where a surety pays a note due secured by a chat-
To. Kissire v. Plunkett-Jarrell 78. Hodgson v. Shaw, 3 Myl. & K.
Grocer Co. (Ark. 1912), 145 S. W. 183.
567 See Advance Thresher Co. v.
76. Copis V. Middleton, 1 Turn. & Hogan, 74 Ohio St. 307, 78 N. E. 436.
Russ. 224; Hodgson v. Shaw, 3 Myl. 19. :\Teans v. Worthington (Tex.
& K. 183. Civ. App. 1912), 147 S. W. 345.
See Iowa National Bank v. Cooper 80. Longbridge v. Rowland, 52
(Iowa 1906), 70 N. W. 625. Miss. 546.
77. Downing v. Linvllle, 3 Bush Eight does not arise when surety
(Ky.) 472; Stafford v. Bank, 132 pays debt but when he becomes
Mass. 315. surety. Dixon v. Steel, 80 Law T.
R. (N. S.) 404, 50 Wkly. Rep. 132.
183 Eights OF Surety AS TO Creditor. §§ 155,156
tel mortgage, he then has a right to subrogation to the creditor's
rights and take possession of the property for his security, in the
same manner as the creditor would have if the note had not been
paid.^^ And so, if he pays a note secured by mortgage upon land,
he is in equity subrogated to the mortgage security held by the
mortgagee,^" and if the mortgagee releases the mortgage it does not
divest his rights except as to third parties without notice and for
a valuable consideration.^^ When security is given, it may be held
until the whole de'bt is paid if there is nothing in the contract to
the contrary.**
§ 155, Stranger Paying Debt. — The right to subrogation ap-
plies only to sureties or those who have to pay the debt to protect
their own interests. Therefore, a mere stranger, or volunteer, can-
not pay the debt for which another is bound, and be subrogated to
the creditor's rights in respect to the security given by the debtor.*^
However, if the person so paying is compelled to pay for the pro-
tection of his own interest, then he may be subrogated to the rights
of thQ creditor. ^"^
§ 156. When Surety Will Not Be Subrogated.— The right of
subrogation is purely an equitable one, and its application must de-
pend upon circumstances. And whether its application shall be so
great as to include all the rights of the creditor must often depend
on whether it is necessary to the protection of the surety to apply
it.*^ Because equity will not do that which will be of no benefit
to the party asking it and only a hardship upon the party coerced.*^
And it is never applied where it will operate as an injustice to the
creditor.*^
81. Myers v. Yaple, 6 Mich. 339; 85. Bartholomew v. First National
Torp V. Gulseth, 37 Minn. 135, 33 Bank, 57 Kan. 594, 47 Pac. 519; Mat-
N. W. 550. ley v. Harris, 1 Lea. (Tenn.) 577.
82. City Nat. Bank v. Dudgeon, 65 86. Hough v. Ins. Co., 57 111. 318;
111. 10; Beaver v. Slanker, 94 111. Young v. Morgan, 89 111. 199.
175; Woods v. Bank, 83 Pa. St. 57; 87. In re Hewitt, 25 N. J. Eq. 210.
Chrisman v. Marman, 29 Gratt. (Va.) 88. Joliet, etc., R. R. Co. v. Healy,
494. 94 111. 416.
83. City Nat. Bank v. Dudgeon, 65 89. Bartholomew v. First National
111. 10. Bank, 57 Kan. 594, 47 Pac. 519.
84. Sleingrehe v. Beveling Co., 83
111. App. 587.
§ 157 SUKETYSIIIP AND GUARANTY. 184:
§ 157. Surety Must First Pay the Debt. — Ordinarily the cred-
itor is entitled to full satisfaction of the debt before the right of
subrogation may be invoked by the surety; so the surety may not
interfere with any of the creditor's rights and securities so long
as any part of the debt remains unpaid.^*
The sureties' right of subrogation cannot be enforced until the
whole debt is paid ; and until the creditor be wholly satisfied there
ought to, and can, be no interference wath his rights or his securi-
ties which might, even by bare possibility, prejudice or embarrass
him in any way in the collection of the residue of his claim. ^^
The application of the doctrine of subrogation requires that the
surety must have paid the debt to the creditor, for the payment of
which the principal was, in equity, primarily liable, and that in
paying the debt the person so paying acted imder compulsion of
saving himself from loss, and not as a mere volunteer.^^ Still,
after the debt has become due, the surety may go into equity, with-
out first making payment, and compel the principal to pay it, if
he is financially able.^^
In some cases, in order to avoid circuity of action or multi-
plicity of suits, equity will make subrogation of the surety before
judgment is rendered against him or payment made. Thus, equity
will substitute a surety on a guardian's bond to the rights of the
wards, to subject their homestead to the payment of a debt due
by the guardian to the wards, before requiring the surety to make
90. Arkansas. — Kissire v. Plun-' Jersey Midland Ry. Co. v. Worten-
kett-Jarrell Grocer Co. (Ark. 1912), dyke, 27 N. J. Eq. 658.
145 S. W. 567; Bank of Fayetteville Pennsylvania. — Brough's Estate,
V. Lorwein, 76 Ark. 245, 88 S. W. 71 Pa. St. 460.
919. 91. Kissire v. Plunkett-Jarrell
Illinois. — Conwell v. McCowan, 53 Grocer Co. (Ark. 1912), 145 S. W.
111. 363. 567; Bank of Fayetteville v. Lor-
Indiana. — Opp v. Ward, 125 Ind. wein, 76 Airk. 245, 88 S. W. 919; Re-
241, 24 N. E. 974; Vert v. Voss, 74 ceivers of New Jersey Midland Ry.
Ind. 566. Co. v. Wortendyke, 27 N. J. Eq. 658.
Kansas. — Bartholomew v. First 92. Aetna Life Ins. Co. v. Middle-
Nat. Bank, 57 Kan. 594, 47 Pac. 519. port, 124 U. S. 534, 8 S. Ct. 625, 31 L.
Kentucky.— Willingham v. Ohio Ed. 537; Hoover v. Epler, 52 Pa.
Val. Banking & Trust Co., 22 Ky. St. 522; In re Church, 16 R. I. 231.
Law Rep. 708, 56 S. W. 706. 93. Moore v. Topliff, 107 111. 241;
New Jersey. — Receivers^ of New Keokuk v. Love, 31 Iowa 199; Hale
v. Wetmore, 4 Ohio St. 600.
189 Rights of Surety as to Ckeditoe. §§ 158, 159
good the guardian's default, where the wards are entitled to the
homestead.®* And so a surety may set aside a fraudulent convey-
ance, executed by the principal, after becoming liable for the prin-
cipal's debt, hut before payment of it.^^ And when the creditor
permits the surety to be subrogated to his rights before the debt is
paid, the principal debtor or other creditors cannot complain.®'^
§ 158. What is Payment. — A tender of payment of the debt
by the surety differs in no way from tender in any other payment,
and must, therefore, 'be unconditional, where a statute does not
control." So a tender of payment to a creditor by the surety with
condition that the security must be assigned to him, is not sufficient
to entitle the surety to subrogation.®^ And payment is fully made
when the surety pays part and the principal the balance. In such
case subrogation will accrue pro tanto to the extent of the surety's
payment.®® And the same would be the effect if two or more
sureties contribute in equal or unequal amounts to the complete
payment; each would be subrogated according to the amount con-
tributed.^
And payment by one who stands in the relation of surety, al-
though it may extinguish the remedy or discharge the security as
respects the creditor, has not that effect as between the principal
and the surety.^
§ 159. Debtor and Creditor. — In equity the surety is regarded
as creditor of the principal debtor, and in case of insolvency of
the latter, the former may retain any securities in his hands be-
94. State v. Atkins, 53 Ark. 303, 13 98. Forest's Oil Co.'s Appeal. 118
S. W. 1097; Gilbert v. Neely, 35 Ark. Pa. St. 138, 12 Atl. 442.
24; Lusk v. Hopper, 3 Bush (Ky.) 99. Magee v. Leggett, 48 Miss. 139.
179. Compare Allison v. Sutherlin, 50
95. Longbridge v. Bowland, 52 Mo. 274, where the debt was only
Miss. 546. partly paid by the surety and he
96. Matley v. Harris, 1 Lea was allowed to be subrogated pro
(Tenn.) 577. tanto, which is against the weight
97. Sanford v. Balkley, 30 Conn, of authority.
344; Richardson v. Chemical Lab- Evidence showing payments, see
oratory, 9 Met. (Mass.) 42. Sumner v. Tuck, 10 Mo. App. 269.
As to tender of payment see § 139 1. Bank v. Potaces, 10 Watts (Pa.)
herein. 152.
2, Gerber v. Sharp, 72 Ind. 553.
§§ 160, 161 Suretyship and Guaranty. 186
longing to the principal, and his possession will be sufficient notice
to a purchaser of the securities.* And securities taken by one of
two or more sureties inures to the benefit of all.* And the surety
before he suffers loss may use his liability as such, as an equitable
counterclaim or set-off against a debt he owes his insolvent prin-
cipal, and this as well against the assignee of an overdue debt as
against the assigTiee himself.^
§ i6o. Fraudulent Conveyances of Principal. — A surety who
is compelled to pay the principal's debt, has the right to impeach
a deed as fraudulent which was given by the principal during the
suretyship.*^ The surety's contingent liability before he pays the
debt is as fully protected against a voluntary conveyance as a claim
which is certain and absolute as where he has paid the debt. The
rights of the surety or other contingent promisor are regarded for
many purposes as commensurate in point of time with the date of
the suretyship, and not when the surety actually paid the security
debt for the principal. The claim of the surety is considered as
having existed, so far as to constitute him a creditor, at the time
he incurred the contingent liability. His subsequent payment of
the debt extends back by relation to that date, although no de-
mand or right of action technically accrues until a subsequent
date.'
iSo whenever payment is made by the surety, he is to be con-
sidered as a creditor of his principal from the time the debt was
created or note was made and delivered.^ And tliough the surety
has no cause of action at law until he has paid the debt, he is en-
titled to protection against fraudulent conveyances executed by the
principal since he became surety.^
§ i6i. As to Exemptions of Principal. — Parties entering into
contracts are presumed to have in view such exemption laws and
rights as are in force at the date of the contract; in other words,
3. Crafts v. Mott, 5 Barb. (N. Y.) Seward v. Jackson, 8 Cow. (N. Y.)
305. 406.
4. Elwood V. Deifendorf, 5 Barb. 8. Sargent v. Salmond, 27 Me. 539.
(N. Y.) 398. 9. Bragg v. Patterson, 85 Ala. 233,
5. Walker v. Dicks, 80 N. C. 263. 4 So. 716; Keel v. Larkin, 72 Ala.
6. Hatfield v. Merod, 82 111. 113. 493; Choteau v. Jones, 11 111. 500;
7. Gannard v. Eslava, 20 Ala. 732; Longbridge v Bowland, 52 Miss. 546.
1871 Eights of Surety as to Creditor. §§ 162, 163
the laws in force enter into and become a part of the contract.^" As
against a surety who has to pay the debt of the principal, the right
of the principal to homestead and other exemptions, as to their
full extent, are to be determined by the law which was in force
when the contract of suretyship was made, and not by the law in
force when the debt was actually paid.^^ But if a new liability
is created by reason of a change of parties or otherwise, and it is
taken in full payment and discharge of the original debt, the right
of exemption is measured by the law in force at the date of the
new ohligation.-*^
§ 162. When Surety Owes Principal. — As already stated, the
surety becomes a creditor of the principal from the date of his
suretyship.^^ So a surety has an equitable interest in his own debt
to his principal, arising from the implied contract of the principal
to see him indemnified; and this equity will prevail over any
counter equity of a subsequent date. Thus, where the surety has
paid the debt of his principal subsequent to an assignment, the
assignee cannot collect the debt owed by the surety to the principal,
because the surety's payment related back to the contract of surety-
ship, and therefore took precedence, which ean be set off against
the surety debt paid."
If the surety takes property from his principal and agrees that
it shall satisfy his liability as surety, the surety is bound, and can-
not collect further from his principal, after paying the debt.^^ On
the other hand, when it appears to the court that the surety has
paid and discharged his liability, and the amount so paid by him
is equal to or greater than the judgment against him, the court will
offset the amount so paid by the surety against, the judgment.^^
§ 163. Payment of a Specialty or Judgment. — The payment of
a bond or other specialty, or judgment, by a surety is not gen-
erally extinguished, but is preserved by a court of equity, but not
10. Gunn v. Barry, 15 Wall. (U. 14. Barney v. Grover, 28 Vt. 391.
S.) 610, 21 L. Ed. 212. 15. Lewis v. Lewis, 92 111. 237.
11. Keel V. Larkin, 76 Ala. 493. 16. Mattingly v. Sutton, 19 W. Va.
12. Keel v. Larkin, 76 Ala. 493. 19.
13. Beach v. Doynton, 26 Vt. 725.
§ 163
■Suretyship and Guaranty.
18S
of law, for the surety's benefit." This, however, is a question often
controlled by statute.
In Illinois the surety may keep the judgment alive which he
has paid for his benefit by procuring it to be formally assigned to
a third person, or he may treat the judgment as satisfied and re-
sort to his action against the principal. And if the judgment be
assigned, the surety may still treat it as discharged and resort to
his action against the principal.^^
In Iowa the surety is entitled to an assignment of the judgment
to himself, or to another for his benefit, and equity will regard
the lien as still subsisting, and will aid the surety in its enforce-
ment.^^ In Minnesota he may take an assignment of the judg-
ment and enforce the same against the principal,^'^ and in iSTew
York.^^ In Ohio the surety may be substituted to the rights of
the creditor against the principal.^^ Equitable rules will keep the
judgment alive for the benefit of the surety.^^ It is the general
rule that the payment of a judgment rendered against the surety
and principal, or against the insolvent principal alone, by the
surety, will subrogate the surety to the benefits of the judgment,
which he may enforce against the principal.^*
Still there are several courts that hold that by payment of the
judgment by the surety against himself or against him and his
17. Knight v. Morrison, 79 Ga. 55,
3 S. E. 689.
18 Katz V. Maessinger, 110 111.
372.
See Kurd's 111. Stat. (1895) ch. 98,
§ 7c.
19. Bones v. Aiken, 35 Iowa 534.
20. Kimmel v. Lowe, 28 Minn. 265,
9 N. W. 764.
Benne v. Schnecko, 100 Mo. 250,
13 S. W. 82.
21. Eno V. Crooke, 10 N. Y. 60.
22. Peters v. McWilliams, 6 Ohio
St. 155.
23. Brown v. Beach, 96 Pa. St. 482.
24. Alabama. — Bragg v. Patterson,
85 Ala. 233, 4 So. 716.
Arkansas. — Newton v. Field, 16
Ark. 216.
Delaware. — Dodd v. Wilson, 4 Del.
Ch. 399.
Indiana. — Gerber v. Sharp, 72 Ind.
553.
Kansas. — Harris v. Frank, 29 Kan.
200.
Kentucky.— Schoolfield v. Rudd, 9
B. Mon. 291.
Louisiana. — Connely v. Bong, 16
La. Ann. 108.
Maryland. — Crisfield v. State, 55
Md. 192.
Michigan. — Sweeney v. Lustfield,
116 Mich. 969, 75 N. W. 136; Smith
V. Rumsey, 33 Mich. 183.
Mississippi. — Dinkins v. Bailey, 23
Miss. 665.
Nebraska. — Eaton v. Lambert, 1
Neb. 339.
189( Rights of Surety as to Ckeditob. § 164
principal, he thereby extinguishes the judgment and cannot have
it reviewed, even in equity.^"
§ 164. Extent of Subrogation. — The surety is not entitled to
recover from his principal a greater amount than he has paid for
him, but he is entitled to interest on that amount from the date
of payment, and necessary costs. So if the surety pays the debt
in depreciated currency, he can demand from his principal only
the value of the currency or other medium at the time of pay-
ment, and the criterion of value is the market value.^® Nor will
the surety be allowed to speculate in the obligations of his prin-
cipal.^^ And so where a surety on a bond has settled the same, he
■cannot claim from the principal more than he has paid in satis-
faction.^^
If the sureties pay the creditor in his own obligations instead
of money, either before or after judgment, this payment entitles
them to the same indemnity as if paid in money after judgment.
So where the creditor sues the sureties and they are allowed a set-
off to part of his demand, their right of subrogation is not limited
to the amount of the judgment against them for the balance, but
extends to the whole amount of the creditor's claim.^^ Because
the equities of the sureties to subrogation extend not only to the
rights of the creditor against the principal, but to all rights of
the creditor respecting the debt which the sureties pay.^*'
New Hampshire. — Low v. Blod- See § 65 as to effect of judgment
gett, 21 N. H. 121. on principal.
New Jersey. — Durand v. Trues- 25. Whittier v. Hemingway, 22 Me.
dell, 44 N. J. L. 597. 238; Pray v. Maine, 7 Cush. 253;
North Carolina. — Hanner v. Doug- Minkler v. State ex rel. Smithers, 14
lass, 4 Jones Eq. (N. C.) 263. Nev. 181, 15 N. W. 330; Moore v.
South Carolina. — Garvin v. Garvin, Campbell, 36 Vt. 361.
27 S. C. 472. 26. Hall v. Cresswell, 12 Gill &
Tennessee. — McNairy v. Eastland, J. (Md.) 36; Kenedrick v. Forney,
10 Yerg. 310. 22 Gratt. (Va.) 748; Butler v. But-
Texas.— Tutt v. Thornton, 57 Tex. ler, 8 W. Va. 674.
35. 27. Schoonover v. Allen, 40 Ark.
Virginia.— Coffman v. Hopkins, 75 132.
Va. 645. 28. Martindale v. Brock, 41 Md.
Wisconsin. — German American 571; Blake v. Traders' Nat. Bank,
Sav. Bank v. Fritz, 68 Wis. 390, 32 149 Mass. 250, 21 N. E. 381.
N. W. 123. 29. Braugh v. Griffith, 16 Iowa 26.
30. Keokuk v. Love, 31 Iowa 119.
§§ 165, 106 SUEKTTSHIP AND GuAEANTY. 190
§ 165. Surety of a Surety, — A surety of a surety who ]ias paid
the obligation, has the same equity of subrogation as the surety
to whom he was bound.^^ So if a creditor exacts the whole of his
demand from one of the sureties, that surety is entitled to be sub-
stituted in his place and to a cession of his rights and securities.^^
But a surety of a surety being compelled to pay the creditor is
not entitled to be subrogated in the place of such creditor for the
purpose of enforcing the payment against the principal debtor,
if such debtor has paid his immediate surety.^^
It is entirely competent for one person to become surety for
other sureties, or to limit the extent of his liability with respect
to the other sureties. The true test of liability in these cases is the
intent of the parties as indicated by their mutual agreement.^* And
a surety for a surety is not bound with the first ; that is, the last
surety is not bound with the one whose name precedes his as
surety of the principal, and he becomes liable only after the first.^^
The last surety may sign as surety for those preceding him, and
not for the principal, and then he will be held liable after his
principal fails."® Thus, where he signs a note as security for one
who is himself a surety for the principal maker, he is not liable
in a suit for contribution by the one for whom he signed as
security."
§ 166. Co-Sureties. — A surety who pays his principal's debt
is entitled to be subrogated to all the rights and remedies of the
creditor against his co-surety in the same manner as against the
principal.^^ iSo where there are two sureties on bills of exchange
and specialties, and one of them has paid more than his portion,
and contribution is sought, the surety who has overpaid will be
31. Rittenhouse v. Levering. 6 Sayles v. Sims, 73 N. Y. 51; Harris
Watts & S. (Pa.) 190. v. Warner, 13 Wend. 400; Sherman
32. Clieesebrough v. Millard, 1 v. Beach, 49 Vt. 198; Craythorne v.
Johns. Ch. (N. Y.) 409; King v. Bald- Swinburne, 14 Ves. 16.
win, 2 Johns. Ch. (N. Y.) 554. 36. Robertson v. Deatharge, 82 111.
33. New York State Bank v. 511; McCollum v. Boughton, 132 Mo.
Fletcher, 5 Wend. (N. Y.) 85. 601, 30 S. W. 1028, 33 S. W. 476, 34
34. McNeilly v. Patchin, 23 Mo. 40; S. W. 480; Singer Mfg. Co. v. Ben-
McCoUum V. Boughton, 132 Mo. 601, nett, 28 W. Va. 16.
SO S. W. 1028, 33 S. W. 476, 34 S. W. 37. Robertson v. Deatharge, 82 111.
4C0. 511.
85. Moffit V. Roche, 77 Ind. 48; 38. Hess's Estate, 69 Pa. St. 272.
191 Rights of Surety as to Creditor. §§ 107, 1G8
subrogated to the right of his creditor to that extent, because the
principle of substitution applies equally to cases arising between
co-sureties and those between surety and principal.^^ But co-sure-
ties will be entitled to the benefits of any compromise effected by
the paying surety, or any discounts that have been obtained by
paying the debt in depreciated currency, notes of banks or any
other reduction.'*'^ And so, on the other hand, a co-surety must
contribute for costs of a suit beneficial to his interest."
§ 167. Joint Debtors. — A joint debtor who has been compelled
to pay more than his share of the indebtedness, becomes a surety
for his co-debtor, and will be subrogated to the rights of the
creditor against his co-debtor for his ratable share of the debt.*^
So where a person signed a note, jointly and severally, as prin-
cipal with the debtor which note had never been negotiated it was
decided that he should be held as- surety.^^ But if the debt is
compromised or paid in depreciated currency, the actual amount
paid will be the criterion of settlement and subrogation. If a co-
promisor pays a debt barred by the statute of limitations against
the consent of his co-debtor, he has no right of subrogation as
against the non-consenting promisor.^*
§ 168. Successive Sureties in Judicial Proceedings. — Where
one is surety for a debtor and the creditor brings suit against the
principal, who appeals the case after judgment is rendered against
him, and gives an appeal bond with surety, then the original surety
for the principal debtor, upon paying the debt, has a right to en-
force such bond for his own indemnity against the surety on the
appeal bond; that is, where the judgTnent has been appealed by
the principal debtor without the consent of the surety, and the
39. Lidderdole v. Robinson, 2 42. Schoenewald v. Dieden, 8 111.
Brock. 160, 12 Wheat. (U. S.) 594, 6 App. 389; Hall v. Hall, 34 Ind. 314;
L. Ed. 740; Crofts v. Moore, 9 Watts Ackerman's Appeal, 106 Pa. St. 1.
451. 43. Linton v. Chestnutt-Gibbons
40. Jones V. Bradford, 25 Ind. 305; Grocer Co. (Okla. 1911), 118 Pac.
Kelly V. Page, 7 Gray (Mass.) 213; 385, citing Pingrey on Suretyship
Edwards v. Sheahaw, 47 Tex. 443. and Guaranty, 41.
See sec. 194 et seq. 44. Waughop v. Bartlett, 165 111.
41. Connolly v. Dolan, 22 R. I. 124, 46 N. E. 197; Ellicott v. Nichols^
CO, 46 At. 36. 7 Gill. (Md.) 85.
§g 169, 170 Suretyship and Guaranty. 192
surety has afterwards paid the judgment, he has an equitable
right to be subrogated to the benefit of the appeal bond/^
In such ease the equity of the first surety is superior, and he is
entitled to be subrogated to the rights of the creditor against the
second surety.*'^ But if the subsequent surety becomes bound for
a purpose in which both the principal and the prior surety have
an interest, and the assent of the prior surety is expressly given,
or may be inferred, the rule is otherwise, and the last surety has
a right to look for his indemnity not only to his principal, but
to such fixed securities as had been given to the creditor when his
engagement was entered into, and on the faith of which he may
have incurred his obligation/^
In some jurisdictions neither the prior nor subsequent surety
is entitled to subrogation against the other/^
§ 169. Guarantors. — A guarantor on a promissory note, when
the maker fails to pay it, may pay it, and the law will imply a
promise on the part of the maker to repay, and the guarantor will
be subrogated to the rights of the holder to whom he makes pay-
ment ; ''^ and the guarantor will be substituted to the rights and
securities of the holder of the note.^"
§ 170. Surety's Defense — In Courts of Equity or of Law. —
Under the common law it is held that a surety can seek relief only
in a court of equity, for the purpose of showing that he has been
discharged, or for other relief. But the doctrine is now that
whatever will discharge a surety in equity can be interposed in
a suit at law, unless there be some complications of interest as
would prevent a court from affording adequate relief. And al-
45. Friberg v. Donovan, 23 111. 48. Semme& v. Naylor, 12 Gill &
App. 58; Parsons v. Briddock, 2 J. (Md.) 358; Morse v. Williams 22
Vern. 608. Me. 17; Holmes v. Day, 108 Mass.
46. Dimlap v. Foster, 7 Ala. 734; 563.
Bradenburg v. Flynn, 12 B. Mon. See sees. 9, 209.
(Ky.) 397; Hartwell v. Smith, 15 49. Hamilton v. Johnson, 82 111.
Ohio St. 200; Pott v. Nathans. 1 39; Voltz v. National Bank, 158 111.
"Watts & S. (Pa.) 155. 532, 42 N. E. 69.
47. Mouson v. Drakeley, 40 Conn. 50. Rand v. Barrett, 66 Iowa, 731,
552; Dillon v. Scofield, 11 Neb. 419; 24 N. W. 530; Washington Bank v.
Hartwell v. Smith, 15 Ohio St. 200. Shurtleff, 4 Met. (Mass.) 30.
193
Rights of Surety as to Cheditob.
§ 171
though relief may be had in both courts, a court of equity having
jurisdiction will not send a surety to a court of law to seek his
defense.^^
So where the makers of a, note are released by a subsequent
destruction of the collateral security, they may make their defense
available in an action at law, upon the note." And generally
whatever defense may be set up in a court of equity against the
surety's liability may be averred and proved in a court of law.""
The decided American authority is in favor of the admissibility
of the defense at law. However, some courts hold that a surety
must go into equity for his defense,^* and many English decisions
are in accord with this doctrine. ^^
§ 171. Remedies of Creditor. — The creditor may sue the prin-
cipal alone, and the principal cannot complain, because it could
be of no benefit to him in any case to have his surety adjudged
jointly liable with him upon the cause of action, as the ultimate
liability must fall upon the principal.^^ Or the creditor may sue
Tsoth in one action,^^ or the surety alone. But a judgment against
the surety is not binding on the principal where he was not a
party to the suit.^*
51. Philpot V. Briant, 4 Bing. 717;
Mayhew v. Crickett, 2 Swan. 185;
Eyre v. Everett, 2 Russ. 382.
52. Rogers v. Trustees, 46 111. 428.
53. Smith v. Clopton, 48 Miss. 66;
Baker v. Briggs, 8 Pick. (Mass.) 122;
King V. Baldwin, 2 Johns. Ch. (N.
Y.) 555; People v. Jansen, 7 Johns.
(N. Y.) 332.
64. Anthony v. Fritts', 45 N. J. L.
1; Shute v. Taylor, 61 N. J. L. 256;
39 All. 663; Grier v. Plitcraft, 57 N.
J. Eq. 556, 41 Ml. 425.
55. Strong v. Foster, 17 C. B. 201
Manley v. Baycut, 2 El. & B. 46
Price V. Edwards, 10 B. & C. 578
Hollier v. Eyre, 9 Cl. & F. 1.
56» Fourth Nat. Bank of Cincin-
nati V. Mayer, 100 Ga. 87, 26 S. B
83.
13
57. Wheeler v. Rohrer, 21 Ind.
App. 477.
58. Benjamin v. Ver Nooy, 36 App.
Div. 581.
Judgment against surety as eji-
dence of principal's indebtedness.
A duly and certified copy of the rec-
ord of the United States District
Court of a judgment had against a
surety on a distiller's bond is prima
facie or presumptive evidence of the
stated indebtedness of the principal
in an action subsequently brought
against the principal and co-surety
thereon. Miller v. Pitts, 152 N. C.
629, 68 S. E. 171.
A judgment against a surety on a
bond, thougli by consent, is prima
facie evidence of the amount of the
surety's liability in a suit against
the principal to foreclose a mort-
§ 171
SUEETYSIIIP AND GUARANTY.
194
And in some States if a surety signs as a principal, he cannot
set up as a defense tiiat he is a surety, in an action at law. llis^
remedy is in equity to restrain the collection of the note.^^ But
this is contrary to the great weight of authority. And though in.
case of a party who has athxed his signature to an instrument it
may not be apparent on the face thereof that he signed it as surety,
yet where it appears that he did so sign with the knowledge of the
parties thereto or of the holder of the obligation he will be so re-
garded. "^'^ Thus, it may be shown by parol evidence in a court of
law that one of the makers of a note signed as surety, which was
known to the payee, though on the face of the note he is a joint
maker ; and he is not obliged to go into a court of equity to set up
gage given by the principal to in-
demnify tlie surety against such lia-
bility. Dunbar v. Cazort & McGehee
Co., 96 Arlt. 308, 131 S. W. 698.
59. Grier v. Flitcraft, 57 N. J. Eq.
556, 41 All. 425; Anthony v. Fritts,
45 N. J. L. 1; Shute v. Taylor, 61
N. J. L. 256, 25 Atl. 663.
60. United States. — Scott v.
Scruggs, 60 Fed. 721, 9 C. C. A, 246
(note) .
Alabama. — Pollard v. Stanton, 5
Ala. 451 (bond or note).
Georgia. — Camp v. Howell, 37 Ga.
312 (note).
Indiana.^ — Gipson v. Ogden, 100
lud. 20 (extending time of payment
of judgment on note).
Iowa. — Kelly v. Gillespie, 12 Iowa
55, 79 Am. Dec. 516 (joint maker of
note may show he was surety with
knowledge of payee).
Louisiana. — Adle v. Metoyer, 1 La.
Am. 254 (maker of note regarded
as surety).
Maine. — Cummings v. Little, 45
Me. 183 (note).
Maryland. — Yates v. Donaldson, 5
Md. 389, 61 Am. Dec. 283 (to bind
payee he must have expressly as-
serted) .
Massachusetts. — Guild v. Butler,
127 Mass. 386 (note).
Michigan. — Stevens v. Oaks, 58
Mich. 343, 25 N. W. 309 (note).
Nebraska. — Lee v. Burgmann, 37
Neb. 232, 55 N. W. 1053 (note).
New York. — Wing v. Terry, 5 Hill
160 (bill of exchange accepted by
drawee with knowledge) .
North Carolina. — Goodman v. Lit-
aker, 84 N. C. 8, 37 Am. Rep. 603
(bond).
Ohio. — Day v. Ramey & Co., 40
Ohio St. 446 (note and judgment on
abandonment of levy).
Rhode Island. — Otis v. Von Storch,
15 R. I. 41, 23 Atl. 39 (note; may
show relation by extrinsic evi-
dence).
Texas. — First Nat. Bank of Vic-
toria V. Skidmore (Civ. App. 1895),
30 S. W. 564 (note).
Vermont. — Peake v. Estate of
Dorwin, 25 Vt. 28 (note).
"Washington. — Harmon v. Hale, 1
Wash. Terr. 422, 34 Am. Rep. 81^
(note; may show relation by extrin-
sic evidence).
Wisconsin. — Irvine v. Adams', 48
Wis. 468, 4 N. W. 573, 33 Am. Rep.
817 (note; may show relation by
parol) .
1951
Rights of Surety as to Creditoe.
171
his equitable defense.^^ Such evidence does not alter or vary the
written contract, as the facts found simply operate when the knowl-
edge of it is brought home to the creditor, to prevent him from
changing the contract and making a different one with the prin-
cipal debtor without the consent of the surety, or from impairing
the rights of the latter by releasing any security or omitting to
enforce the contract when requested.®^
61. Alabama. — Branch Bank v.
James, 9 Ala. 949.
Colorado. — Drescher v. Fulham, 11
Colo. App. 62, 52 Pac. 685.
Georgia. — Stewart v. Parker, 55
Ga. 656.
Illinois.— Ward v. Stout, 32 111.
399; Flynn v. Mudd, 27 111. 323.
Iowa. — Piper v. Newcomer, 25
Iowa 221.
Maine. — Lime Rock Bank v. Mal-
lett, 34 Me. 547.
Massachusetts. — Carpenter v.
King, 9 Met. 511.
Michigan. — Smith v. Shelden, 35
Mich. 42.
Missouri. — Stillwell v. Aaron, 69
Mo. 539.
Jiew Hampshire. — Grafton Bank v.
Kart, 4 N. H. 221.
New York. — Hubbard v. Gurney,
€4 N. Y. 459; Archer v. Douglass, 5
Denio 307.
Washington. — Bank of Jeffs, 15
Wash. 231.
Wisconsin. — Irvine v. Adams, 48
Wis. 468.
Suretyship need not appear on
face of instrument. It is not neces-
sary that an alleged contract of
suretyship should appear upon the
face of a promissory note, as it is
collateral to the contract, and may
be proved by parol as between the
makers thereof and the payee if he
had notice of their relation to each
other. Farmers' Supply Co. v. Weis,
115 Minn. 428, 132 N. W. 917.
Evidence of the disposition made
of the proceeds of notes and the ar-
rangement under which the money
was borrowed is admissible to aid
the jury in determining who re-
ceived the proceeds of the notes and
whether a person claiming to have
signed as surety did in fact so sign
them. Rogers v. Hazel (Ky. C. A.
1912), 144 S. W. 49.
Under the code in Nebraska it is
not the duty of the jury to find
which of the defendants is principal
and which are sureties. It is the
duty of the clerk, under the direc-
tions of the court, in recording the
judgment, to certify which of the de-
fendants is principal and which are
sureties. Smith v. Roehrig, 90 Neb.
262, 133 N. W. 230.
In an action against the widow,
after the death of her husband, on
a note, which she resists on the plea
that she signed it as surety for her
husband, where it does not appear
o" the face of the note whether she
signed it as principal or as surety,
she is incompetent to testify that
she did not sign it as principal or
that she did not receive any of the
money for which it was executed or
to say what disposition was made
of the money. Black v. McCarley's
Exr., 31 Ky. Law Rep. 1198. 104 S.
W. 1029.
62. Hubbard v. Gurney, 64 N. Y.
457.
§ 172 Suretyship and Guaranty. 196
So in a suit by a surety who has paid the debt to recover from
one whom he claims was a co-surety and liable to contribution,
the latter has the right to show that he was only the accommoda-
tion party for and therefore surety of the formcT. This is upon
the principle that the parties to a note may contract among them-
selves as to their several proportions of liability and that such a
contract will be respected and enforced by the courts.*^^
When the fact of suretyship does not appear on the face of the
instrument knowledge or notice of such fact must be proved.^*
The contrary or equitable doctrine is that the right of the
surety to have his status respected, does not pertain to his con-
tract, as an implied incident, but as a mere equity, which it is
irregular to enforce in a court of common law, so long as it is
important to preserve the distinction between procedure of a legal
and that of an equitable forum.^^
§ 172. Death of Principal. — When the principal debtor in an
obligation, to which there are sureties, dies, the creditor may look
to the sureties as primarily liable to perform the contract, and
<J3. Rogers v. Hazel (Ky. C. A. New York.— Elwood v. Diefendorf,
1912), 144 S. W. 49. 5 Barb. 398 (note).
64. Alabama. — Summerhill v. North Carolina. — Torrence v.
■Tapp, 52 Ala. 227 (note). Alexander, 85 N. C. 143 (note);
Georgia. — Stewart v. Parker, 55 Goodman v. Litaker, 84 N. C. 8, 37
Ga. 656 (note). Am. Rep. 602 (bond).
Indiana.— Thorp v. Parker, 86 Ind. Tennessee.— Dozier v. Lea, 7
102 (note); Albright v. Griffin, 78 Humph. 520 (note).
Ind. 182 (note). Texas. — Bonnell v. Prince, 11 Tex^
Iowa. — Morgan v. Thompson, 60 Civ. App. 399, 32 S. W. 855 (note).
Iowa 280, 14 N. W. 306 (note). Washington. — Culbertson v. Wil-
Kentueky.— Neel v. Harding, 2 cox, 11 Wash. &22, 39 Pac. 954
Mete. 247 (note). (note).
Massachusetts. — Wilson v. Foot, Wyoming. — Frank v. Snow, 6 Wyo.
11 Mete. 285 (note). 42, 42 Pac. 484, 43 Pac. 78 (note).
Michigan. — Smith v. Shelden, 35 Defendant has burden of proof to
Mich. 42, 24 Am. Rep. 529 (note). establish defense that he signed as
Missouri. — Patterson v. Brock, 14 surety. Vandeventer v. Davis, 92
Mo. 473 (note). Ark. 604, 123 S. W. 766; Farmers &
New Hampshire. — Nichols v. Par- Merchants' Bank v. Shorb, 137 Cal.
sons, 6 N. H. 30, 23 Am. Dec. 706 685, 70 Pac. 771 ; Handler v. Bradley,
(note). 110 Minn. 66, 124 N. W. 644.
New Jersey. — Kaighn v. Fuller, 14 65. Grier v. Flitcraft, 57 N. J. Eq.
N. .7. Eq. 419 (bond). 556, 41 Atl. 425.
197! Rights of Sueety as to Cbeditob. § 173
need not, unless so ordered by statute, present the claim to the
administrator of the deceased principal for allowance and pay-
ment.^® But in some jurisdictions statutory provisions provide
that where the estate of the deceased is sufficient to pay the claims,
the failure of the creditor to file his claim against the estate, shall
operate to release the surety on the contract."
The death of a lessee for a term of years does not ipso facto dis-
charge from liability for after-accruing rent one who has bound
himself absolutely for the payment of the rent for the entire term ;
and neither the liability of the surety nor the right of action
against him is suspended during the period between the death
of the lessee and the appointment of an administrator. In such a
case the surety is not released by the bare fact that the widow
of the lessee was in possession of the premises after the death of
her husband and during the time when the rent claimed from
the surety had accrued, without any evidence that she occupied
the premises by agreement with the landlord.®^
§ 173. Debt Barred Against the Principal. — Although the debt
may be barred by limitations as against the principal, yet if
judgment may be rendered against the surety, which is done and
he pays it, such surety may recover against the principal or
against his estate in case of his death. The right of action in
favor of the surety arises when he pays the debt, and is not based
upon the original contract itself, but upon the implied contract
which exists by law between the principal and surety in such
66. Illinois. — People v. White, 11 68. Supplee v. Herrman, 16 Pa.
111. 341. Super. Ct. 45.
Iowa, — Brendenburgh v. Snyder, 6 69. Kentucky. — Wood v. Leland, 1
Iowa 39. Met. 387.
Kansas. — Ray v. Brenner, 12 Kan. Maine. — Crosby v. Wyatt, 23 Me.
105. 156.
New Hampshire. — Boardwall v. New Hampshire. — Peaslee v. Reed,
Paige, 11 N. H. 437. 10 N. H. 489.
Texas. — Willis v. Chowning, 90 Tennessee. — Reeves v. Pullian, 7
Tex. 617, 40 S. W. 395. Baxt. 119; Marshall v. Hudson, 9
Washin^on. — MacDonald v. Yerg. 57.
O'Shea, 58 Wash. 169, 108 Pac. 436. Texas.— Faires v. Cockerell, 88
67. Waughop v. Bartlett, 165 111. Tex. 428, 31 S. W. 109, 639.
124, 46 N. E. 197.
§ 173 Suretyship and Guakanty. 198
The surety's right in such case is not based upon subrogation
to the claims of the creditor, but on the implied obligation of his
principal to reimburse him when he pays the debt, and exists
though the debt to the payee, when discharged by the surety, is
barred as to the principal debtor,^" Thus, where the creditor
fails to present his claim to the administrator of the deceased
debtor within the time provided by statute, and the claim becomes
barred, the creditor may then bring suit against the surety on
the secured debt and recover judgment, and after payment of the
judgment by the surety, the latter may then recover from the
decedent's estate the amount paid, with costs and interest.^^
This is on the ground that the obligation of the principal to
indemnify the surety, does not arise out of his original contract
with the creditor, but is implied by the law from his relation to
the surety, and it continues until the liability of the surety is
terminated.'^ The principal's liability arises when the surety has
performed the contract.^^
There are decisions which hold a contrary view, that when the
claim is barred as against the principal debtor, it is thereby barred
also as against the surety,^* but they are against the great weight
of authority.
70. Willis V. Chowning, 90 Tex. 73. Lamb v. Withrow, 31 Iowa 164.
617, 40 S. W. 395. 74. Auchawpaugh v. Schmidtt, 70
71. Pearson v. Goyle, 11 Ala. 280; Iowa 642, 27 N. W. 805; Dorsey v.
Marshall V. Hudson, 9 Yerg. 57; Wil- Wyman, 6 Gill (Md.) 59; State v.
lis V. Chowning, 90 Tex. 617, 40 S. Blake, 2 Ohio St. 147.
W. 395. See § 190.
72. Hollinsbee v. Ritchey, 49 In^.
261.
1991 Rights of Subety as to Principal. § 174
CHAPTER VII.
Rights and Remedies of Surety as to Principal.
Section 174. Liability of Principal to Surety.
175. Payment Before Due by Surety.
176. Part Payment by Surety.
177. The Surety Must Be Under a Legal Obligation to Pay.
178. Proper Action for Surety to Bring Against Principal.
179. Surety to One of Partners.
180. Surety Giving His Own Note in Payment of the Debt.
181. Debt Satisfied Out of the Surety's Property.
182. When the Surety's Right of Action is Complete.
183. Liability of Principal for Surety's Costs and Interest.
184. Recovery of Consequential Damages.
185. Payment of Usury by the Surety.
186. What Amount the Surety Can Collect from the Principal.
187. Joint Suit by Sureties.
188. Payment of Judgment by Surety.
189. Right to Take Indemnity from the Principal.
190. When the Principal is Not Liable.
191. Voluntary Payment by Surety.
192. Statute of Limitations as Between Surety and Principal.
193. Relief of Surety in Equity.
§ 174. Liability of Principal to Surety. — The contract of the
principal with the surety to indemnify him for payment which
the latter may make to the creditor in consequence of the lia-
bility assumed, takes effect from the time when the surety becomes
responsible for the debt of the principal. It is then that the law
raises the implied contract or promise of indemnity. N^o new con-
tract is made when the debt is paid by the surety, but the pay-
ment relates back to the time when the contract was entered into
by which the liability to pay was incurred. The payment only
fixes the amount of damages by which the principal is liable un-
der his original agreement to indemnify the surety.^ Thus, the
1. Alabama. — Martin v. Ellerbe, 70 Iowa. — Wilson v. Crawford, 47
Ala. 335. Iowa 469.
Delaware. — Miller v. Stout, 5 Del. Kansas. — Tebery v. Swenson, 32
€h. 262. Kan. 224, 4 Pac. 83.
Indiana. — Covey v. Neff, 63 Ind. Maryland. — Williams v. Bank, 11
591. Md. 242.
§ 174 Suretyship and Guaranty. 200
liability of a principal in a promissory note to his surety is in-
curred when the note is executed and delivered, and not at the
time the surety is compelled to pay the same.^ And the surety is
entitled to be reimbursed by his principal for such sum as he may
be compelled to pay in consequence of his contract of suretyship.*
If a stranger pays the debt and the surety reimburses him, the
surety can recover the amount from the principal.^
In case of a payment by the administrator of the surety's es-
tate, the principal then becomes liable to the estate for the sum
so paid.^
Massachusetts. — Rice v. South- California. — Townsend v. Sullivan,
gate, 16 Gray 142. 3 Cal. A^p. 115, 84 Pac. 435.
Missouri. — Thomas v. Liebke, 81 Kentucky. — Maysville Telephone
Mo. 675. Co. V. First National Bank, 142 Ky.
Mississippi.— Pennington v. Seal, 578, 134 S. W. 886, 140 Ky. 51, 13a
49 Miss. 525. S. W. 820.
iVew York. — Konitzky v. Meyer, Maine. — Vermeule v. York Cliffs
40 N. Y. 571. Improvement Co., 105 Me. 350, 74
As between himself and the party Atl. 800.
accommodated, the accommodation Missouri. — Board of Education of
party to a note is in effect a surety, St. Louis v. United States Fidelity
and his right to recourse against & Guaranty Co. (Mo. App. 1911),
the party accommodated is that of 134 S. W. 118.
a surety against the principal New Hampshire. — Fidelity & De-
debtor. Rogers v. Hazel (Ky. C. A. posit Co. v. Buckley (N. H. 1910),
1912), 144 S. W. 49; Morehead v. 77 Atl. 402.
Citizens' Deposit Bank, 130 Ky. 414, New York. — Blan chard v. Blanch-
113 S. W. 501, 23 L. R. A. (N. S.) 141. ard, 133 App. Div. 937, 118 N. Y.
The fact that one holding a lien Supp. 1095, affirming 61 Misc. R. 497,
as materialman, is also a surety on 113 N. Y. Supp. 882.
the contractor's bond does not pre- North Carolina. — Tripp v. Harris,
elude him from maintaining his 154 N. C. 296, 70 S. E. 470.
lien. Prescott Nat. Bank v. Head, Oregon. — Guernsey v. Marks
11 Ariz. 213, 90 Pac. 328. (Oreg. 1910), 106 Pac. 334.
Surety may recover from an un- West Virginia. — Wilson v. Carrico,
disclosed principal. City Trust, 50 W. Va. 336, 40 S. E. 439.
Safe Deposit & Surety Co. v. Amer- See also cases cited in previous
lean Brewing Co., 70 App. Div. (N. notes.
Y.) 5-11, 75 N. Y. Supp. 140. 4. Harper's Adm'r v. McVeigh's
2. Washburn v. Blundell, 75 Miss. Adm'r, 82 Va. 751, 1 S. E. 193.
266, 22 So. 946. 5. Townsend v. Sullivan, 3 Cal.
3. Arkansas. — Griffin v. Long, App. 115, 84 Pac. 435.
(Ark. 1910), 131 S. W. 672.
toil Rights of- Surety as to Peincipal. §§ 175, 176-
§ 175. Payment Before Due by Surety. — The surety may pay
the debt before it is due, if he thereby causes no injury to the
principal, but he cannot recover from the principal until the debt
matures.^ The surety need not wait until the creditor sues him.
He may consult his own safety and resort to any measure cal-
culated to assure him of it, which does not involve injury to the
principal, but he cannot compel payment by the principal until
the maturity of the debt.^ And the payment of the debt before
maturity is not necessary voluntary ; and so when a co-surety has
paid the debt before maturity, he can compel contribution from
the other co-sureties when the debt becomes due.^
§ 176. Part Payment by Surety. — In some cases the surety
can compromise the debt and pay only part for a full satisfaction;
or he may pay part and the principal the balance. In such cases
the surety can compel his principal to reimburse him for his out-
lay.^ And if the surety is obliged to make several payments, he
may bring several suits for the amounts paid.^'* Such may be the
case when the surety is compelled to pay coupon notes as they fall
due, or the payee has the option, which is seldom the case, to de-
mand a partial payment of the debt at different times. But the
surety has no right to pay in installments when the contract does
not so stipulate, and then bring several suits against the principal.
But the rule is different in Louisiana, and in that State the surety
is entitled to make partial payments, and to bring a suit on each
6. Ross V. Menefee, 125 Ind. 432, Tennessee.— Hall v. Hall, 10
25 N. E. 545. Humph. (Tenn) 352.
Lienable claims may be paid be- England. — Davies v. Humphreys,
fore expiration of time for filing. 6 Mees. & W. 152; Pownal v. Fer-
MacDonald v. O'Shea (Wash. 1910), rand, 6 Barn. & Cr. 439.
108 Pac. 436. A presumption arises where a
7. White V. Miller, 47 Ind. 385; surety makes a payment on the ae-
Armstrong v. Gilchrist, 2 Johns, count of hisi principal that it was
Cas. (N. Y.) 429. made at the request of the latter.
8. Craig v. Craig, 5 Rawle (Pa.) Blanchard v. Blanchard, 133 App.
91. Div. (N. Y.) 937, 118 N. Y. Supp.
9. Iowa. — Wilson v. Crawford, 47 1095, affirming 61 Misc. R. 497, 113
Iowa 469. N. Y. Supp. 882.
New York.— Wright v. Butler, 6 10. Bullock v. Campbell, 9 Gill
Wend. 284. (Md.) 182.
Ohio. — Williams v. Williams, 5
Ohio 444.
§ 177 SUBETYSHIP AND GuABANTY. 202
pajrment, because, it is held, the obligation of the principal toward
the surety is not indivisible." The Louisiana court cites Pownal
V. Ferraud ^^ as authority for that doctrine. But that case does
not declare any such doctrine. It holds that an indorser, as a
surety, who makes a part payment on a bill or note, may hold his
principal for the amount so paid; that is, an indorser of a bill
being sued by the holder, who pays part of the sum mentioned in
the bill, may recover the same from the acceptor in an action for
money paid for his use.
That a surety can at his option pay the debt of his principal in
partial payments, and then institute a suit against his principal
for each payment, is not the law, for he has no right to split up
his actions for the collection of a debt.^^ If circumstances should
compel him to make partial payments, the rule might be changed,
and he then could bring his several actions against his principal. ^^
In case of joint sureties, when each furnishes money to pay the
principal's debt, an action to recover from the principal must be
separate and not joint. But if the debt is paid by an agent of the
sureties out of his own funds, then the action by the sureties must
be joint.^*
§ 177. The Surety Must Be Under a Legal Obligation to Pay.
— The surety must be under a legal obligation to pay the debt
in order to hold his principal. After the debt of the principal is
due, the law implies that the principal requests such payment, and
also implies a promise to pay the surety. If the surety is under
no legal obligation to pay, then the implied request of the prin-
cipal to pay the debt will not arise, nor the implied promise to re-
pay the surety, and if the surety pays under such circumstances he
cannot recover from the principal. ^^ Thus, where the surety is re-
leased from liability, and he then pays the debt of the principal,
11. Newman v. Coza, 2 La. Ann. 544; Appleton v. Bascom, 3 Met.
642; Pickett v. Bates, 3 La Ann. 627. (Mass.) 169; Gould v. Gould, 8 Com.
12. 6 Barn. & Cr. 439. (N. Y.) 168.
13. Jones v Trimble, 3 Rawle 16. Kimble v. Cummins, 3 Met.
(Pa.) 388. (Ky.) 327.
14. Bullock V. Campbell, 9 Gill See also Nourse v. Weitz, 120
<Md.) 182. Iowa 708, 95 N. W. 251; Farrelly v.
1.'). Ross V. Allen, 67 111. 317; Schaettler, 143 App. Div. (N. Y.)
Whitbeck v. Ramsey, 74 111. App. 273, 128 N. Y. Supp. 157.
203 Rights of Surety as to Principal. § ITS
he cannot hold the principal liable to him for the pa;yTnent. Be-
cause he is no longer a surety and is not entitled to any of the
rights growing out of such relation. He occupies no better attitude
than any other person paying the debt of another without request
or authority, implied or express."
But a request by the principal to pay, and a request to enter into
a contract of suretyship may be implied.^^ In an ordinary case
where the principal makes default in the payment of the debt or
the performance of the contract, the surety need not wait for suit
to be brought, but may, as soon as his liability arises, pay and dis-
charge the debt. It is not necessary to obtain consent of the prin-
cipal, because the law implies a request to the surety so to act in
behalf of his principal. And money thus paid is paid for the use
of the principal, and the surety may maintain an action against his
principal for it.^^ But if the surety voluntarily pays a note for
which his principal is not liable, he cannot recover from his prin-
cipal.^" Thus, where a note is given on an election bet, and ia
therefore void, if the surety pays it, he has no recourse on the prin-
cipal.^^
§ 178. Proper Action for Surety to Bring Against Principal. —
The proper action to bring against the principal by the surety is,
at common law, assumpsit for money paid at his request. ^^ So an
action for money had and received will not lie for a surety who has
paid the debt for his principal; the action must be for money laid
out and expended for the principal.^^ Where parties are jointly
and severally liable to the creditor, one who pays the debt may
17. Spillman v. Smith, 15 B. Mon. See § 191 as to voluntary pay-
(Ky.) 134. ments by surety.
18. Snell V. Warner, 63 111. 176; 21. Harley v. Stapleton, 24 Mo.
Ricketson v. Giles, 91 111. 154; Hall 248.
V. Smith, 5 How. (U. S.) 96, 12 L. Ed. 22. Mowry v. Adams, 14 Mass. 337.
€6. At common law sureties who paid
19. Appleton v. Bascom, 3 Met. the debt of their principal could sus-
(Mass.) 169; Hazelton v. Valentine, tain an action in assumpsit in ex-
113 Mass. 472; Lidderdale v. Robin- oneration of the loss. Hudson v.
son, 2 Brock. 159; Pitt v. Prussard, Aman (N. C. 1912), 74 S. E. 97.
8 Mees. & W. 538. 23. Ford v. Keith, 1 Mass. 139;
20. Sponhauer v. Malloy, 21 Ind. Powell v. Smith, 8 Johns. (N. Y.)
App. 287. 249.
§ 178 Suretyship and Guaranty. 204
bring an action for money paid, against his co-surety for contribu-
tion.^"
Where the surety pays a note of his principal, whether he can
have the note assigned to him and then sue the principal upon it,
is a question on which the authorities are irreconcilable. It is held
by one line of decisions that where a surety pays a note and has it
assigned to him, he is entitled to maintain an action of implied
assumpsit for the amount paid, and he can not sustain an action
upon the note against his principal f^ because the payment by the
surety goes to the whole promise of the note, and when the entire
promise of the note is met and extinguished, it cannot afterwards
be received as a subsisting contract against the principal co-signer,
and the surety cannot therefore bring suit on it against the prin-
cipal.2«
So in recent cases it is decided that where a surety pays a note
his remedy against his principal is not on the note which
he has paid but upon the promise which the law implies where a
surety is compelled to advance money for his principal.^^
The principle as to the right of an indorser upon a note is dif-
ferent from that which controls a surety. For a note taken up by
the indorser who is not directly liable on the note may be again
put in circulation, or upon the market, and the promisor is not, in
such case, prejudiced by such a transfer, and the note remains good
against the maker. Where the note is taken up under such circum-
stances it is not in fact paid. But where one of several joint
obligors or promisors, who is liable directly upon the note for its
24. Mansfield v. Edwards, 136 27. Yule v. Bishop, 133 Cal. 574,
Mass. 15; Steckel v. Steckel, 28 Pa. 65 Pac. 1094; McDonough v. Nowlin
St. 233. (Cal. App. 1911), 118 Pac. 463.
25. Smith v. Sawyer, 5 Me. 504; See also Faires v. Cockerell, 88
Frevert v. Henry, 14 Nev. 191; Hulet Tex. 428, 31 S. W. 190, 28 L. R. A.
V. Soullard, 26 Vt. 295; Copis V. Mid- 528, holding that the right to re-
dleton, 1 Turn. & Russ. 224; Hodg- cover is upon the implied promise
son V. Shaw, 3 Mylne & K. 183. and not on the theory of subroga-
26. Joyce v. Joyce, 1 Bush (Ky.) tion. Yndo v. Rivas (Tex. Civ. App.
474: Bryant v. Smith, 10 Cush. 1911), 142 S. W. 920; Hays v. House-
fMass.) 171; Hopkins v. Farwell, 32 wright (Tex. Civ. App. 1911), 133 S,
N. H. 425. W. 922.
See Kurd's 111. Stat. (1895), 1062.
sec. 7c.
205 Eights of Surety as to Pbincipal. § 179
whole amount, pays such note, the note is necessarily extinguished,
and hence a surety cannot use it against his principal.^^
The other line of authorities hold that the payment of a note by
the surety is not, as between himself and the principal, an extin-
guishment of the same, and the surety's right of action against the
principal is upon the note, and not on implied assumpsit,^^ because
the surety may be substituted to the place occupied by the creditor,
not only as to collaterals, but as to the original note.^'*
§ 179. Surety to One of Partners. — The surety can look for re-
imbursement only to the rights of his principal, and not to a
stranger. So where a surety is on the bond of one of several part-
ners, he cannot look to the partnership for indemnity, if he has
to pay the debt, though the bond was given to secure a partnership
debt. The surety cannot charge any other person as his principal
€xcept the one who was principal at the time of making the con-
tract of suretyship. No privity can exist between the parties ex-
■cept that which arises on the bond or contract, and implied assump-
sit cannot arise beyond the parties on the bond or in the contract.^^
In. like manner, where a promissory note is knowingly taken by
a creditor of one partner for his separate debt, but signed by such
partner in the name of the firm, but without the consent of the
other partners, and also executed by a person who supposed he was
surety for the firm, it is not binding upon the partnership, nor
upon the surety.^^ The instrument must show the privity between,
the parties, and cannot be extended beyond such limits.^^
In the case, however, of one who is a volunteer surety for a
partnership it is declared that it is just that the partnership prop-
erty and the property of each of the partners should be made to
respond before recourse is had to the surety.^*
28. Davis v. Stevens, 10 N. H. 186. Y.) 213; Krafts v. Creighton, 3 Rich.
29. Tutt V. Thornton, 57 Tex. 35, (S. C.) 273.
following Sublet v. McKinney, 19 82. Hagar v. Mounts, 3 Blackf.
Tex. 438, and overruling Hollinan (Ind.) 57.
V. Rogers, 6 Tex. 91. 33. Harter y. Moore, 5 Blackf.
80. Lumpkins v. Mills, 4 Ga. 343. (Ind.) 367.
Compare Boyd v. Beville, 91 Tex. 34. Empire State Surety Co. v.
439, 44 S. W. 287. Ballou (Wash. 1911), 118 Pac. 923.
31. Tom V. Goodrich. 2 Johns. (N.
§ 180 Suretyship and Guaranty. 206
§ 1 80. Surety Giving His Own Note in Payment of the
Debt. — The surety may pay the principal's debt after due, by
giving his own negotiable note, provided the creditor receives it as
payment, and thereupon may maintain an action against the prin-
cipal for reimbursement.^"
The giving of a note by a surety for the debt of his principal
constitutes a payment as between them where it is accepted in pay-
ment and extinguishment of the first note and he has an action to
recover tlie amount of the first note from the principal as for
money paid for his use though his own note has not been paid.^^
However, the authorities are not uniform upon this subject. In
some of the States it is held that the surety cannot recover of the
principal until he has paid the money, and that the giving of a
note is not sufficient." Many of the cases hold that if the surety
discharges the debt by his negotiable note, he can maintain an ac-
tion against the principal ; but if he pays the debt by means of a
bond or any non-negotiable instrument, he cannot maintain an ac-
tion until he pays it, because such non-negotiable instrument is not
analogous to money.^^
The reason of the rule is, that, if the creditor takes the negotiable
35. Indiana. — White v. Miller, 47 351; Brisindine v. Martin, 1 Ired.
Ind. 385. (N- C.) 286; Nowland v. Martin, 1
Iowa. — Sapp V. Aiken, 68 Iowa Ired. (N. C.) 397; Ljnich v. Han-
699, 28 N. W. 24. cock, 14 S. C. 66.
Kansas. — Rizer v. Callen, 27 Kan. 38. California. — Stone v. Hammell,
339. 83 Cal. 547, 23 Pac. 703.
Kentucky. — Maysville Telephone Indiana. — Romine v. Romine, 59
Co. V. First National Bank, 142 Ky. Ind. 346; Bennett v. Buchanan, 3
578, 134 S. W. 886, 140 Ky. 51, 130 Ind. 47.
S. W. 820. Missouri. — Huse v. Ames, 104 Mo.
Massachusetts. — Doolittle v. 91, 15 S. W. 965.
Dwight, 2 Met. 561. New York. — Cummins v. Hockley,
New Hampshire. — Pearson v. Par- 8 Johns. 202.
ker, 3 N. H. 366. Pennsylvania. — IMorrison v. Ber-
New York. — Auerbach v. Rogin, key, 7 Serg. & R. 238.
40 Misc. R. (N. Y.) 695, 83 N. Y. South Carolina. — Peters v. Bay-
SuFp. 154. hill, 1 Hill (S. C.) 237.
36. IMcDonough v. Nowlin (Cal. Texas. — Boulware v. Robinson, 8
App. 1911), 118 Pac. 463; Yndo v. Tex. 327.
Rivas (Tex Civ. App. 1911), 142 S. Wisconsin.— Barth v. Graf, 101
W. 920. Wis. 27, 76 N. W. 1100.
37. Romine v. Romine, 59 Ind.
2071 Rights of Surety as to Principal. §§ 181, 182
note of the surety as absolute payment, the surety can then sue the
principal for the debt, which must of course be done ; by giving
his own obligation he discharges the original debt of the principal,
and the latter is as much benefited as if he had discharged it by
actual payment of money. But the rule must be applied only
where the surety, by giving his note, has extinguished the original
debt. This rule has been criticised because the surety may recover
the whole amount from his principal and never pay his own note,
or get the debt reduced by compromise, and thus violate the card-
inal rule that the surety shall not speculate out of the principal.
§ i8i. Debt Satisfied Out of the Surety's Property.— If the
surety pays his principal's debt by giving property,^^ or if his prop-
erty be taken on legal process,^° he can, at once, bring action against
his principal for reimbursement. Thus, where the surety's land
has been levied on to satisfy the debt of his principal, he may main-
tain an action against the principal for money paid ;" and so by
paying the principal's debt in land, the surety can begin immediate
action against his principal for money paid and expended for the
latter.''^
§ 182. When the Surety's Right of Action is Complete. — It is
settled that no action can be maintained by the surety upon an
implied promise, if the principal has made default, without first
making payment of the debt/^ except where by statute the surety
S9. Bonney v. Seely, 2 Wend. (N. Indiana. — Covey v. Neff, 63 Ind.
Y.) 481. 392.
See, also, Townsend v. Sullivan, Maine. — Vermeule v. York Cliffs
3 Cal. App. 115, 84 Pae. 435. Improvement Co., 105 Me. 350, 74
40. Clemens v. Prout, 3 Stew. & Atl. 800.
P. (Ala.) 345; Burns v. Parish, 3 B. Minnesota. — Kimmel v. Lowe, 28
Mon. (Ky.) 8. Minn. 265, 9 N. W. 764.
41. Lord V. Staples, 23 N. H. 448. Mississippi. — Weir-Booger Dry
42. Bonney v. Seely, 2 Wend. (N. Goods Co. v. Kelly, 80 Miss. 64, 31
Y.) 481. So. 808.
43. Alabama. — Cooper v. Parker Missouri. — Hearn v. Keath, 63 Mo.
(Ala. 1912), 57 So. 472; Lane v. 84.
Westmoreland, 79 Ala. 372. Oregon. — Guernsey v. Marks (Ore.
California.— Stone v. Hammell, 83 1910), 106 Pac. 334.
Cal. 547, 23 Pac. 703. Vermont.— Bullard v. Brown, 74
.Vt. 120, 52 AO. 422.
§ 182 Suretyship and Guakanty. 208
may be permitted to sue in certain cases." And it is, of course,
competent for the parties to so frame their contract, either by the
terms of the principal contract, or by a separate independent con-
tract, as to authorize the surety to proceed against the principal,
or against the independent security given by the principal to the
surety, at any stated time, independent of the surety's prior pay-
ment of the principal debt/^ 'An exception exists also where the
principal has broken his promise to do or refrain from doing some
particular act or thing or to save the surety from some charge or
liability. Thus, where the maker of a note agrees with the surety
to pay the amount of the note to the payee on a given day, but
makes default, the surety can recover from his principal without
first making payment of the note.^^
In like manner, where a partnership is dissolved by one partner
leaving the firm with the debts outstanding, and a new firm agrees
with the outgoing partner to pay the debt of the old partnership
and save him harmless from any costs, trouble or liability on the
account of the same, upon default of the new firm, the partner
who withdrew can recover against the new firm without first pay-
ing such debts.^^ When an obligation to do a particular thing or
to pay a debt for which the covenantee is liable, or to indemnify
against liability, is broken, the right of action is complete upon the
principal's failure to do the particular thing he agreed to perform
or to pay the debt or discharge the liability.^*
If the contract be one of indemnity simply, and nothing more,
then damages must be shown before the party indemnified is en-
titled to recover; but if there be an affirmative spontract to do a
certain act or to pay a certain sum or sums of money, then the
surety can sue the principal before paying the debt to the creditor.^^
44. Dodder v. Moberly (Okla. 46. Loosemore v. Radford, 9 Mees.
1911), 114 Pae. 714. & W. 657.
45. Cooper v. Parker (Ala. 1912), 47. Lathrop v. Atwood, 21 Conn.
57 So. 472. 117.
A surety or guarantor cannot re- 48. Kohler v. Mattage, 72 N. Y.
cover indemnity from the principal 259; Merchants & Manufacturers'
or indemnitor until he has paid the Nat. Bank of Middletown v. Cum-
debt, unless there is a clause in the ings, 149 N. Y. 360, 44 N. E. 173;
contract of indemnity which waives Barth v. Graf, 101 Wis. 27, 76 N. W.
this general rule. Cooper v. Parker 1100.
(Ala. 1912), 57 So. 472; Lane v 49. 3Iichigan.— Hall v. Nash, 10
Westmoreland, 79 Ala. 374. Mich. 303.
209 Rights of Surety as to Principai* § 183
§ 183. Liability of Principal for Surety's Costs and Interest. —
The surety can recover back the money paid by him for the prin-
cipal's debt with interest.^* The surety can also recover the rea-
sonable costs he has been compelled to pay in his action brought to
recover from the principal.^^ Upon this implied contract the surety
cannot recover a greater amount than he has paid for the prin-
cipal with interest. >So upon an action to reimburse himself for a
payment of a note which he had signed providing for attorney fees
upon its collection, he cannot recover for such fees, for the action
is upon the implied promise, and not upon the note.^^ But in
those States where the surety can sue on the note which he has
paid for his principal, he can recover attorney's fees stipulated in
the note,^^ because he is subrogated to the place of the creditor, who
might collect such principal with interest and also the attorney
fees.^* And where a principal has given a note to a surety promis-
ing payment of interest and attorney's fees the surety upon pay-
ment of his principal's note may maintain his action upon the
written obligation from the principal to him.^^
Where the surety imposes improper defenses, thereby largely in-
creasing the cost of litigation, he will be charged with the cost of
the suit."^ iSo the principal is not liable for the costs and expenses
unnecessarily incurred by the surety in litigation carried on by
him in order to get rid of his liability or defeat the efforts of the
Nebraska. — Dorrington v. Min- New Hampshire. — Child v. Powder
nick, 15 Neb. 397, 19 N. W. 456. Works, 44 N. H. 354.
New York. — Post v. Jackson, 17 Wisconsin. — Whereatt v. Ellis, 103
Johns. 239. Wis. 348, 79 N. W. 416; Earth v.
Olilo.— Wilson V. Stilwell, 9 Ohio Graf, 101 Wis. 27, 76 N. W. 1100.
St. 470, 51. Apgar v. Wilson, 24 N. J. L.
England. — Holmes v. Rhodes, 1 812; Thompson v. Taylor, 72 N. Y.
Bos. & P. 638. 32.
50. Alabama. — Smith v. Pitts (Ala. 52. Gieseke v. Johnson, 115 Ind.
1910), 52 So. 402. 308, 17 N. E. 573; Hays v. House-
Kentucky. — Maysville Telephone wright (Tex. Civ. App. 1911), 133 S.
Co. V. First National Bank, 142 Ky. W. 922.
578, 134 S. W. 886, 140 Ky. 51, 130 53. Carpenter v. Minter, 72 Tex.
S. W. 820. 370, 12 S. W. 180.
Massaelinsetts. — Hayden v. Cabot, 54. Worsham v. Stevens, 66 Tex.
17 Mass. 169. • 89, 17 S. W. 404.
MissonrL — Hearne v. Keath, 63 55. Worthington v. Whitefield
Mo. 84. (Tex. Civ. App. 1911), 142 S. W. 34.
56. May v. May, 19 Fla. 373.
14
§ 184r SUKETYSniP AND GUARANTY. 210
party seeking to enforce it." It is incumbent upon the surety
seeking to recover from his principal costs and expense incurred
in litigation, to show that the litigation was entered into in good
faith and upon reasonable grounds, and was a measure of defense
necessary to the interest of himself and principal, and was calcu-
lated so to result. ^^
An accommodation indorser has two remedies; he may sue on
the note or sue for money paid. If he sues on the note he can only
recover the amount with interest. If he sues for money paid he
can recover the amount with interest and also the costs.^^ An in-
dorser who has been compelled to pay cannot recover costs against
the drawer, because he ought to pay without suit.*** The surety
may recover both the penalty and interest.^^
§ 184. Recovery of Consequential Damages. — In some cases
consequential damages may be recovered. Thus, where the surety
can show that by reason of the non-payment of the debt, he has
suffered damages beyond the principal and interest which he had
been compelled to pay, he is entitled to recover that damage from
the principal.*'^ But this is seldom the case, and the general rule
is the surety cannot recover of the principal remote or consequen-
tial damages arising out of the contract of suretyship.^^ Thus, a
surety who pays the debt is not entitled to remuneration for losa
sustained by a forced or hasty sale of his property to raise the
money, and can only recover the money paid with legal interest by
way of damages. To provide against other consequences, the surety
must take special indemnity. Hence, if the surety is put into
57. Wynn v. Brooke, 5 Rawle M. 487. (Compare Whitehouse v.
(Pa.) 106. Glass, 7 Grant Ch. 47.
58. Redfield v. Haight, 27 Conn. 61. Whereatt v. Ellis, 103 Wis.
31; Whitworth v. Tillman, 40 Miss. 348, 79 N. W. 416.
76; Thompson v. Taylor, 72 N. Y. See, also. United States v. Curtis,
32; Cranmer v. McSwords, 26 W. 100 U. S. 119, 25 L. Ed. 571; Frink v.
Va. 412. Southern Express Co., 82 Ga. 33, 8
See, also. Holmes v. Ward, 24 S. E. 862; Burchfield v. Haffey, 34
Barb. (N. Y.) 546. Kan. 42, 7 Pac. 548; Bank v. Smith,
59. Burton v. Stewart, 62 Barb. 12 Allen (Mass.) 293.
(N. Y.) 194. 62. Badely v. Bank, 34 Ch. Div.
60. Simpson v. Griffin, 9 Johns. (N. 536.
T.) 131; Roach v. Thompson, M. & 63. Vance v. Lancaster, 3 Hayw,
(Tenn.) 130.
211 Rights of Surety as to Pbincipai.. § 185
prison or his goods are sold at a sacrifice, this will not be legal
grounds of suit for indemnity, because they may be avoided by pay-
ment which he agreed to make in case the principal defaulted.^^
§ 185. Payment of Usury by the Surety. — A surety may, it is
held in some cases, pay a usurious debt of his principal, under
ordinary circumstances, and then collect the whole amount from
his principal, unless the principal before payment has notified him
not to pay it.^^ But if the usury makes the debt or note void, and
the surety, knowing such to be the case, pays the whole amount
without request by the principal, the surety is not entitled to relief,
even under a mortgage to secure him against liability as such
surety.^^
When the defense of usury is not available to the principal, it
cannot be to the surety.^^
§ 186. What Amount the Surety Can Collect From the Prin-
cipal. — The surety can collect from the principal only the amount
he has paid. If the creditor remits the debt as a gratuity to the
surety, the surety cannot recover anything from the principal, be-
cause he has lost nothing. If the surety extinguishes the debt for
less than the whole amount due he can only recover what he actually
paid.^^ And so if the surety pays the debt in depreciated currency,
64. Hayden v. Cabot, 17 Mass. 169; Norris, 2 Myl. & Cr. 362; Butcher v.
Powell V. Smith, 8 Johns. (N. Y.) Chandler, 14 Ves. 567.
250. In an action on a contractor's
65. Ford v. Keith, 1 Mass. 139; bond to recover damages for the fail-
Kock V. Block, 29 Ohio St. 565; Jack- ure of a contractor to complete a
son V. Jackson, 51 Vt. 253. building, the owner is entitled to be
Compare Hargraves v. Lewis, 3 crdited with sums paid out in pur-
Ga. 162; Jones v. Joyner, 8 Ga. 562; chasing finishing items, in the
Lueking v. Gegg, 12 Bush. (Ky.) 298; amounts fixed in the contract there-
Thurston v. Prentiss, 1 Mich. 193. for; also for such items as sweeping
66. Roe V. Kiser, 62 Ark. 92, 34 S. out and repairing, where the con-
W. 534. tract called for leaving the house
67. Freese v. Brownell, 35 N. J. L. " broom clean," although no archi-
285; Pugh v. Gonover, 11 W. Va. tect's certicate in relation thereto
523. was furnished; also the amount for
68. Delaware, etc., R. R. Co. v. which liens were filed, admitted by
Iron Co., 38 N. J. Eq. 151; Snyder v. the contractor to be correct. Jenk-
Blair, 33 N. J. Eq. 208; Bonney v. ins v. American Surety Co., 45 Wash.
Seely, 2 Wend. (N. Y.) 481; Reed v. 573, 88 Pao. 1112.
§ 187
Suretyship and Guaranty.
211
he can only recover from the principal the market value of the cur-
rency at the time payment v^^as made.^*
The contract between the principal and surety is for indemnity
only, and therefore if the surety discharges the obligation for a
less sum than its full amount he can only claim against the prin-
cipal the sum so paid.^** But an accommodation indorser has the
same right to purchase negotiable paper on which he is liable with
any other person, and so when he becomes purchaser of such paper,
he is entitled to recover the full amount due from the maker, with-
out regard to what he paid for it.''^
§ 187. Joint Suit by Sureties. — Sureties cannot maintain a
joint action against their principal unless the payment is made
from a joint fund. When each surety furnishes money to pay
the debt of the principal, the action to recover the same must be
separate, and not joint. '^ At common law an action in assumpsit
by sureties in exoneration of their loss where they had paid the
debt of their principal was ordinarily several and not joint. When,
however, the payment was joint or was made out of a joint fund,
the sureties were permitted to join in a suit for reimbursements.^^
In Texas it is decided that under
the statutes of that State an in-
dorser of a note who is given the
remedies extended to sureties is en-
titled, where he is a party, and by
cross-bill asks for it, to a judgment
in their favor against the principal
for such amounts as they may be
compelled to pay out by reason of
having indorsed the notes sued on.
Blake v. Vesey (Tex. Civ. App. 1912),
143 S. W. 220.
69. Butler v. Butler, 8 W. Va. 674;
Matthews v. Hall, 21 W. Va. 510.
70. California. — Waldrip v. Black,
74 Cal. 409, 16 Pac. 226.
Indiana. — Gieseke v. Johnson, 115
Ind. 308, 17 N. E. 573.
Kentucky. — Owings v. Owings, 3
J. J. Marsh, 590.
Nebraska. — Eaton v. Lambert, 1
Neb. 339.
Texas. — Carpenter v. Minter, 72
Tex. 370, 12 S. W. 180.
Virginia, — Hendrick v. Forney, 22
Graft. 748.
71. Fowler v. Strickland, 107
Mass. 552.
72. Illinois. — Whitbeck v. Ramsey,
74 111. App. 524.
Maine. — Lombard v. Cobb, 14 Me.
222.
Massaclinsetts. — Appleton v. Bas-
com, 3 Met. 169.
New Hampshire. — Pearson v. Par-
ker, 3 N. H. 366.
Vermont. — Thomas v. Carter, 63
Vt. 609, 22 Atl. 720.
England. — Osborne v. Harper, 5
East 225.
73. Hudson v. Aman (N. C. 1912).
74 S. E. 97.
213 'Rights of Surety as to Principal. § 188
So where several parties, each of whom is responsible for an en-
tire sum due from another, join in making the payment of that
sum by a contribution agreed on among themselves for that pur-
pose, they may join in one action to recover it from the person
for whose benefit the payment has been made.^* Where there is
no community of interest in the money paid, a joint action can-
not be maintained.^" But the rule is otherwise where there is a
community of interest in the fund appropriated to the payment
of the debt. Thus, where the sureties deposit a sum with the
creditor to their joint order, to be held as collateral security for
their joint liability, and from which such liability is finally dis-
charged, that is a joint fund, although made up in the first in-
stance from individual deposits by several sureties.^® In general,
sureties may sue jointly when they have satisfied the debt by
giving their joint note ;" or if they pay from a joint fund which
they have provided for that purpose f^ or if they have paid a
joint judgment in equal shares.'^ But where each has paid his
share, the right to recover is several, and the sureties must en-
force their rights by separate suits.^^
§ i88. Payment of Judgment by Surety. — When the surety
has paid the judgment rendered against him individually, or
jointly against him and his principal, he can recover from the
principal the amount paid to discharge the debt, and this is so
though the surety did not well defend the suit.^^ And this is the
74. Clapp V. Rice, 15 Gray (Mass.) 79. Snider v. Greathouse, 16 Ark.
&57. 72; Rizer v. Callen, 27 Kan. 339;
75. Doremus v. Selden, 19 Johns. Clapp v. Rice, 15 Gray (Mass.) 557;
(N. Y.) 213. Fletcher v. Jackson, 23 Vt. 581.
76. Thomas v. Carter, 63 Vt. 609, 80. Illinois.— Whitbeck v. Ramsey,
22 Atl. 720. 74 111. App. 524.
See, also, Ross v. Allen, 67 111. Missouri. — Sevier v. Roddie, 51
317; Gould v. Gould, 8 Cow. (N. Y.) Mo. 580.
168. New York. — Doremus v. Selden, 19
77. Ross V. Allen, 67 111. 317; Johns. 213.
Rizer v. Callen, 27 Kan. 339; Doo- Pennsylvania. — Boggs v. Curtin, 10
little V. Dwight, 2 Met. (Mass.) 561. Serg. & R. 211.
78. Whitbeck v. Ramsiey, 74 111. Vermont, — Prescott v. Newell, 39
App. 524 ; Jewett v. Comforth, 3 Me. Vt. 82.
107; Thomas v. Carter, 63 Vt. 609, 22 81. Doran v. Davis, 43 Iowa 86;
Atl. 720. Rice v. Rice, 14 B. Mon. (Ky.) 417.
§ 189 Suretyship and Guaranty. 214:
law though the surety lets the judgment go by default, he not
knowing of any defense to it.**^
It behooves the principal, if he has any defense, to put it up
at the trial, whether the action is brought against him or the
surety separately, or against both. If he does not he waives his
rights in the matter, and cannot set up such defense in a suit
against him by the surety for reimbursement.^^ And in general,
the surety, upon paying the judgment against him or against
both, may recover from the principal.**
In such a case, however, as he only succeeds to such rights as
the judgment creditor had his right to bring an action against
his principal is limited to the period prescribed for bringing an
action on the judgment.^^
§ 189. Right to Take Indemnity From the Principal. — The
principal may indemnify the surety against loss, and the contract
will be valid.^^ The contingent liability of the surety and the prom-
ise to pay if the principal does not is a sufficient consideration for
the indemnity contract. ^^ Justice is promoted by permitting a
surety to take from his principal some obligation upon which he
may acquire a lien upon the property of the principal to provide
■security for his indemnity in case of need before he has actually
•been compelled to pay the debt.^^ But such security can only bo
applied where the surety has either paid the debt, or has become
82. Stinson v. Brennan, Cheves Pac. 258; Essex Chosen Freeholders
(S. C.) 15. V. Lindsley, 41 N. J. Eq. 189.
A judgment by consent against a Under a statute permitting surety
surety is only prima facie evidence companies to stipulate for indemnity
of the extent of the principal's lia- from their principals it is held that
bility to him. Cazort & McGehee Co. such a company has no right to de-
V. Dunbar (Ark. 1909), 121 S. W. 270. mand indemnity, the contract must
83. Konitsky v. Meyer, 49 N. Y. contain a provision therefor. United
571; Hare v. Grant, 77 N. C. 203. States Fidelity & Guaranty Co. v.
84. Chandler v. Higgins, 109 111. Paxton, 142 Ky. 361, 134 S. W. 481,
602; Konitsky v. Meyer, 49 N. Y. decided under Ky. St., § 723.
571; Kendrick v. Rice, 16 Tex. 254. 87. Haseltine v. Guild, 11 N. H.
85. Cathcart v. Bryant, 28 Wash. 390.
31, 68 Pac. 171. 88. Little v. Little, 13 Pick. (Mass.)
8(5. Kassing v. Bank, 74 111. 16; 426; Grimes v. Sherman, 25 Neb. 843,
Tudor V. DeLong, 18 Mont. 499, 46 41 N. W. 814; Kramer v. Bank, 15
Ohio 283.
215 Rights of Surety as to Principal. § 190
immediately liable for its payment;*^ and the surety may be com-
pelled to apply the collaterals or security in his hands to the pay-
ment of the debt.^'^
He has, however, no right to apply securities of his principal
•except where he has become liable on the bond for a breach thereof
by the principal.^^ And in case of the insolvency of the surety
and a failure by him to pay the obligation of his principal the
latter is, in an action by him in behalf of his creditor entitled
to a judgment for the value of the property delivered.^^
At common law an insolvent debtor has a right to sell or trans-
fer the whole or any portion of his property to one or more of hia
creditors in payment of or to secure his debt, when that is his
honest purpose, although the effect of the sale or transfer is to
place his property beyond the reach of his other creditors and
render their debts uncollectible.®^
The taking of collateral security by the surety does not relieve
the principal from his primary liability on his undertaking.®^
§ 190. When the Principal is Not Liable. — In order to make
the principal reimburse the surety who has paid the debt, the
principal must be liable for the debt paid, except in case of dis-
ability.®^ For the right of the surety to recover in a suit against
the principal for paying his debt depends on the question whether
the surety is legally bound to pay it. The voluntary payment by
the surety, although made under a mistaken apprehension as to
his legal liability, will not make the principal liable. The surety's
recovery can only arise from payment of money which he was
legally bound to pay according to the original contract of surety-
ship.®^ If the surety knows of facts which will discharge him or
89. Constant v. Matteson, 22 111. Y. 117, 51 N. E. 268; Dodge v. Mc-
546, Keehnie, 156 N. Y. 514, 43 N. E. 532.
90. McKnight v. Bradley, 10 Rich. 9-J. Leary v. Murray, 178 Fed. 209,
Eq. (S. C.) 557. 101 C. C. A. 529.
As to subrogation of creditor to 95. Sponhaur v. Malloy, 21 Ind.
surety's securities, see § 151 herein. App. 287, 52 N. E. 245.
91. Nourse v. Weitz, 120 Iowa 708, That surety must be under a legal
95 N. W. 251. obligation to pay, see § 177 herein.
92. Kerr v. Hough, 22 Ky. Law 96. Bancroft v. Abbott, 3 Allea
Rep. 1693, 61 S. W. 262. (Mass.) 524.
98. Thompkins v. Hunter, 149 N.
§ 191 Suretyship and Guaranty. 21G
his principal, and pays the creditor, then he cannot recover from
the principal." If the surety, to shield himself against liability
in another transaction, procures his debtor to surrender to him
a debt of the principal, then he cannot recover from his principal.^*
And so where the transaction is contrary to lavs^, and therefore
the principal is not liable, if the surety pays the debt he cannot
recover from the principal.^* But where the surety has been com-
pelled to pay the debt of his principal, without any fraud or
negligence on his part, though the obligation is without consider-
ation, he can recover.-*^ If he pays a debt barred by the statute of
limitations, then he cannot recover from the principal,^ because
the principal is under no legal obligation to the creditor to pay
the debt so barred.*
§ 19 1. Voluntary Payment by Surety. — A surety cannot re-
cover money voluntarily paid by him for a principal, for the rea-
son that a surety cannot pay a debt for which his principal is not
liable, and then sue the principal for reimbursement.* When one
is not legally bound to pay the debt of another, if he pays it, he
is a mere volunteer, and cannot, therefore, claim reimbursement
from the debtor.^ The party in paying the creditor must act un-
der compulsion to save himself from loss, in order to demand re-
imbursement.®
So the promise to pay the pre-existing debt of another person
to his creditor, requires a new consideration to support it, and if
this new consideration is not given, the creditor cannot enforce
it against the promisor, or surety. Thus, where a widow gives
a note for a pre-existing debt of her deceased husband, whose es-
tate is insolvent, she is, in many States, only a surety, and cannot
97. Noble v. Blount. 77 Mo. 235; See § 173.
Russell V. Failor, 1 Ohio St. 327. 3. Elder v. Elder, 43 Kan. 514, 23
88. McCory v. Parks, 18 Ohio St. Pac. 600.
1. 4. Opp V. Ward, 125 Ind. 241, 24 N.
99. Davis v. Stokes County, 74 N. E. 974.
C. 374, 5. Beaver v. Slanker, 94 111. 175.
1. Frith V. Sprague, 14 Mass. 455. 6. Aetna Life Ins. Co. v. Middle-
2. Stone v. Hammell, 83 Cal. 547, port, 124 U. S. 534, 8 S. Ct. 625, 31
23 Pac. 703; Halshutt v. Pegram, 21 L. Ed. 537; Hoover v. Epler, 52 Pa.
La. Ann. 722; Elliott v. Nichols, 7 St. 522.
Gill (Md.) 85.
^17 'Rights of Surety as to Principal. § 192
be compelled to pay the debt, or note.' And she cannot be con-
sidered liable on the new contract, whether she be considered a
surety or a mere volunteer.^
But where a judgment on an appeal bond has been affirmed by
the supreme court of a territory and the surety is notified by the
governor of the territory that its right to do business within the
territory will be forfeited unless it pays the judgment, a pay-
ment by it of such judgment will not be regarded as voluntary,
but rather as justified and having paid the same it will be en-
titled to reimbursement from the principal. And such right is
not affected by the taking of security from the judgment creditor
as by so doing it was benefitting the principal by acquiring se-
curity to which he could be subrogated in the event that the judg-
ment should be reversed.^
§ 192. Statute of Limitations as Between Surety and Prin-
cipal. — The statute of limitations may run in favor of the prin-
cipal so as to bar the surety from recovering from the principal.
The statute begins to run, in favor of the principal, from the
time when the surety has paid the principal's debt. There is an
implied promise on the part of the principal to indemnify the
surety and repay him all money that he may be compelled to pay
to the creditor, in consequence of his liability as surety ; and un-
til the surety makes payment, there is no breach of this implied
promise, and hence no cause of action against the principal for
such payment arises until the payment is made.^" And so the
statute begins to run in favor of the principal at the time the
property of the surety is sold to pay the debt."
Where the surety has paid a part, and thereafter the principal
pays the balance, the statute begins to run from the time of the
principal's payment, and not from the partial payment by the
surety, because until the last payment by the principal, it could
not be ascertained how much the surety would be obliged to pay."
7. Hetherington v. Hixon, 46 Ala. 10. Thayer v. Daniels, 110 Mass.
297; Sponhaur v. Malloy, 21 Ind. 345; Williams v. Williams, 5 Ohio 444.
App. 287, 52 N. E. 245; Parsons v. 11. Wesley Church v. Moore, 10
Nields, 137 Pa. St. 385, 21 Atl. 1016. Pa. St. 273.
8. Williams v. Nichols, 10 Gray 12. Davies v. Humphreys, 6 Mees.
(Mass.) 83. & W. 153. Compare Williams v.
9. United States Fidelity & Guar- Williams, 5 Ohio 444.
anty Co. v. Sandoval (U. S. S. C.
1912), 32 Sup. Ct. 298.
§ 192 Suretyship and Guaranty. 218
Where a surety gives his own note in payment of his principal's
note, limitations upon his righ-t to recover from his principal is
held to commence to run from the date that the payment is so
made and not from the time he pays his own note.^^
In some States this matter is controlled by statute. Thus, in
Missouri, if the surety pays his principal's debt, he must present
his claim for reimbursement to the Probate Court, in case of the
death of the principal, within the time limited by statute, or lose
his right to recover/* In Illinois, where the state of the dece-
dent's estate is sufficient to pay all claims, a failure of the holder
of a note against the deceased principal to have it probated will
release the surety as to the whole debt, and where the estate is
sufficient to pay a part, then the surety is released pro tanto}^
However, the claim is not barred, but a right to claim a distribu-
tive share out of the property inventoried is barred. The credi-
tor still has the right to satisfy his claim out of subsequently
discovered estate not inventoried.^^ And as the surety has the
right to be subrogated to the rights of the creditor when he is com-
pelled to pay the principal's debt, he would have no greater rights
than the creditor in probating the claim.
Under a Kentucky statute it is provided that the period during
which a surety shall hinder or obstruct his being sued shall not be
included in computing the period of limitation."
The surety having paid the debt which the principal ought to
have paid, the law implies a promise on the part of the principal
to reimburse the surety, and the latter may maintain an action on
implied promise as for money paid for the use of the principal.^*
And the rule as to the running of the statute of limitations in bring-
ing such case is the same that applies generally to other actions
upon implied and unwritten contracts.^^
13. Yndo V. Rivas (Tex Civ. App. 18. Poe v. Dixon. 60 Ohio St. 124,
1911), 142 S. W. 920. 54 N. E. 86.
14. Bauer v. Gray, 18 Mo. App. 164. See § 178 herein.
15. Waughop V. Bartlett, 165 111. 19. Thayer v. Daniels, 110 Mass.
124, 46 N. E. 197. 345; Sherrod v. Woodward, 4 Dev. L.
16. Snydaeker v. Swan Land & (N. C.) 360; Poe v. Dixon, 60 Ohio
Cattle Co., 154 111. 220, 40 N. E. 466. St. 124, 54 N. E. 86; Zuellig v. Hem-
17. Exchange Bank v. Thomas, 25 erlie, 60 Ohio St. 27, 53 N. E. 447.
Ky. Law Rep. 228, 74 S. W. 1086, 75
S. W. 283; Ky. St., § 2552.
-219 Rights of Surety as to Principal. § 195
§ 193. Relief of Surety in Equity. — Equitable relief in behalf
of the surety is one of original jurisdiction in a court of chancery.^'*
And though the liability of a surety is governed by the same prin-
ciples at law as in equity, a court of equity will not send a party
suing there to a court of law for a discharge or relief ; but will ex-
tend the same relief and exercise the same powers in behalf of
sureties that can be exercised by law.^^
After the debt is due equity may compel the principal to pay the
obligation,^^ or may compel the creditor or obligee to satisfy his
demands out of the estate of the principal debtor,^^ and, after the
surety has paid the debt, set aside a fraudulent conveyance of the
principal.^*
20. New York Bank Note Co. v. New Jersey. — Philadelphia, etc., R,
Kerr, 77 111. App. 53. R. Co. v. Little, 41 N. J. Eq. 519.
21. Viele v. Hoag, 24 Vt. 46; Eyre PenusylYania. — Ardesco Oil Co. v.
V. Everett, 3 Hare 567. Oil Co., 66 Pa. St. 375.
22. West Hunterville Cotton Mills Wisconsin.— McMillen v. Mason, 71
Co. V. Alter (Ala. 1910), 51 So. 338; Wis. 405, 37 N. W. 253.
Cooper V. National Fertilizer Co., 24. Hatfield v. Merod, 82 HI. 113;
132 Ga. 529, 64 S. E. 650. Choteau v. Jones, 11 111. 300; Strong
23. Illinois.— Moore v. Topliff, 107 v. Taylor, 79 Ind. 208; Bragg v. Pat-
Ill. 241. terson, 85 Va. 233.
Indiana. — Smith v. Harbin, 124
Ind. 434, 24 N. E. 1051.
§ 194 Suretyship and Guaranty. 220
CHAPTER VIII.
RIGHTS OF CO-SURETIES.
Section 194. Right to Contribution.
194a. Right to Contribution Continued.
194b. Right to Contribution — Not Subject to Judicial Control.
194c. Right to Contribution — Accommodation and Compensated
Sureties.
195. Payment by Note.
196. Enforcement at Law.
197. Enforcement in Equity.
198. The Co-surety Cannot Speculate to the Injury of His Co-
surities.
199. Surety of a Surety.
200. Obligation to Contribute.
201. Liability of Surety's Estate.
202. Remedy Against Co-surety Before Payment.
203. Co-sureties Under Different Instruments.
204. The Obligation Must Be the Same.
205. Co-sureties Limiting Their Liability in Different Amounts.
206. Accommodation Indorsers.
207. Sureties in Legal Proceedings.
208. Indemnity to One Surety.
209. Liability to Contribute on Successive Bonds.
210. Admissibility of Parol Evidence to Show that Parties on a
Promissory Note are Co-sureties.
211. Statute of Limitations.
212. Bankruptcy of Co-surety.
Sec. 194. Right to Contribution. — When one co-surety pays
the debt after the principal has defaulted, he is entitled to con-
tribution from the other co-sureties. The obligation of contribu-
tion is not founded upon contract, but on the principle of equity.
This principle is accepted by all parties under circumstances when
it can be applied, and upon this ground courts have also taken
jurisdiction to enforce contribution.^ So in a recent case in Wis-
1. Uuiled States. — McDonald v. Illinois. — Drummond v. Yager, 10
McGruder, 3 Pet. 470, 7 L. Ed. 744. 111. App. 380; Paul v. Berry, 78 111.
Colorado. — McAllister v. Irwin's 158.
Estate, 31 Colo. 253, 73 Pac. 47. Kentucky. — Sanders v. Herndon,
Georgia.— McLin v. Harvey (Ga. 29 Ky. Law Rep. 322, 93 S. W. 14,
App. 1910), 69 S. E. 123. 29.
221
Rights of Co-sdeeties.
§ V.i4:
consin it is said that such right anciently originated in equity but
now rests upon legal as well as equitable obligation and is enforce-
able at law or in equity according to circumstances.^ The equity
springs out of the proposition that where two or more sureties
stand in the same relation to a principal, they are entitled equally
to all the benefits and must bear equally all the burdens of the po-
sition. They must occupy the same position in respect to the prin-
cipal, unless equities among themselves give an advantage to one
over the others.^
And this liability to contribution exists although the sureties are
ig-norant of each other's engagement.^ .So it is said to be an ac-
Louisiana. — See Bruce Co. v. Lam-
bour, 123 La. 969, 49 So. 659.
Michigan. — Bronson v. Marsh, 131
Mich. 35, 90 N. W. 686, 3 Det. Leg.
N. 213.
Missouri. — Wilson v. Kieffer, 141
Mo. Aflpp. 137, 122 S. W. 1149.
Nevada. — Alderson v. Menes, 16
Nev. 298.
New Jersey. — Paul v. Kaighn, 29
N. J. L. 480.
New York. — Norton v. Coons, 6 N.
Y. 33.
Nortli Carolina, — Board of Com-
missioners of Davidson Co. v. Dor-
eett, 151 N. C. 307, 66 S. E. 132.
Obio. — Robinson v. Boyd, 60 Ohio
St. 57, 53 N. E. 494; Nielson v. Fry,
16 Ohio St. 552.
Pennsylvania. — Patterson v. Pat-
terson, 23 Pa. St. 464.
Texas. — Smart v. Panther, 42 Tex.
Civ. App. 262, 95 S. W. 679.
England. — Ellesmere Brewing Co.
V. Cooper (1896), 12 B. 75; Cray-
thorne v. Swinburne, 14 Ves. 169.
Petition held sufficient in action
for contribution. See Train v.
Emerson (Ga. S. C. 1912), 74 S. E.
241.
2. Estate of Koch, 148 Wis. 548,
134 N. W. 663. Judge Marshall said
in this case: "From the very na-
ture of the matter the whole subject
of contribution was at first and for
a long time dealt with solely in
equity, taking, however, more and
more, with the lapse of time, the
form of a definite judicial code, ap-
propriate to a proper standard, in
moral conception, of business
ethics. Those rules, being we^l es-
tablished and universally applied
with quite as much certainty as
legal rules, strictly so called, or
rules defendable upon written law,
came to be regarded as automati-
ically written into every contract of
guaranty, nothing appearing effic-
iently to the contrary, and enforce-
able at law as well as in equity.
* * * While it is an equity the
right to the equity is legal as well
as equitable, because the parties
are presumed to have agreed that
the right shall exist, and so legal
as well as equitable remedies are
available to redress its violation."
3. Wells V. Miller, 66 N. Y. 255;
Barry v. Ransom, 2 N. Y. 462; Elles-
mere Brewing Co. v. Cooper (1896),
1 Q. B. 75.
4. Connecticut. — Monson v. Drake-
ley, 40 Conn. 552.
Massachusetts.— Chaffee v. Jones,
§ 194a ISURETYSHIP AND GuAEANTY. 222
cepted principle that co-sureties of the same obligation, even though
ignorant of the existence of each other, who occupy the same posi-
tion in respect to the prncipal and are without equities as between
themselves, giving an advantage to one over the other, are entitled
to contribution from each other.^
The jurisdiction of all law courts is based upon the doctrine
that the equitable principle has been so long and so generally ac-
knowledged and enforced that persons in placing themselves under
circumstances to which contribution applies, may be supposed to
act under the dominion of contract impled from the universality
of that principle.®
§ 1943. Right to Contribution Continued. — The obligation of
co-sureties, though several, is not collateral. It is for the same
thing. They have a right of indemnity against their principal, and
there is generally such mutuality between them as to render the
right a duty of contribution.^ But a voluntary payment of the
debt by one of the sureties does not give the right of contribution.^
Thus, one of the sureties who pays an obligation of, or a judgment
against his principal which is not legally enforceable, cannot re-
cover contribution.* But where a surety pays a note in good faith,
not knowing of a defense, he is entitled to contribution.^'* If the
surety is legally bound, and a demand is made by the creditor, and
he pays without a suit, he can enforce contribution.^^ And so a
19 Pick. 260; Warner v. Morrison, (Ky.) 401; Pile v. McCoy, 99 Tenn.
3 Allen 566. 367, 41 S. W. 1052.
>'ew Hampshire. — Whitehouse v. 7. Monson v. Drakeley, 40 Conn.
Hanson, 42 N. H. 9. 552; Covey v. Bostwick, 20 Ohio St.
New York.— Wells v. Miller, 66 N. 337.
Y. 255; Norton v. Coons', 6 N. Y. 33. 8. Halsey v. Murray, 112 Ala. 185,
Ohio.— Robinson v. Boyd, 60 Ohio 20 So. 575; Curtis v. Parks, 55 Cal.
St. 57, 53 N. E. 494. 106; Skillin v. Merrill, 16 Mass. 20.
Oregon. — Durbin v. Kuney, 19 As to voluntary payments see
Oreg. 74, 23 Pac. 661. § 191 herein.
Virginia.— Stovall v. Bank, 78 Va. 9. Smith v. Staples, 40 Conn. 90;
188. McLin v. Harvey (Ga. App. 1910), 69
Enghmd.— Craythorne v. Swin- S. E. 123.
burne, 14 Ves. 160. 10. Hichbone v. Fletcher, 66 Me.
6. National Surety Co. v. Di Mar- 209; Warner v. Morrison, 3 Allen
Bico, 55 Misc. R. (N. Y.) 302, 105 N. (Mass.) 566.
Y. Supp. 272. 11. Harden v. Carroll. 90 Wis. 350,
6. Lansdale v. Cox, 7 T. B. Mon. 63 N. W. 275.
223 Rights of Co-sureties. § 104a
surety has a right ta contribution, if he pays a judgment before
execution is issued ;^^ or if the debt is due and collectible ;'" and so if
suit is brought and he pays before trial ;" and he may pay a legal
debt in advance and then have contribution at maturity ;^*^ also, if
he pays an amount settled by arbitration.^^ In Louisiana the surety
must wait until judgment is rendered.^^ If a note has been altered
after the name of tlie surety paying it, this does not prevent him
from recovering contribution, because he has a right to ratify the
note after such alteration.^^ And it is held that it is no defense
that the original note was void for want of consideration. If one
of the sureties pays it he can obtain contribution.^^
A judgment against one surety does not conclude his co-surety
from showing there was no liability,^^ unless he was party to the
suit,^° or had notice. In the latter case it is decided that a judg-
ment against a surety obtained without fraud or collusion in an
action of which the principal or any co-surety had notice is con-
clusive in favor of the surety in an action against the principal or
the co-surety for contribution.^^
A payment of a judg-ment of one co-surety is not an accord and
satisfaction as to the actions,^^ and he can maintain, at once, an ac-
tion against his co-sureties for contribution and without waiting to
dispose of any indemnity that the principal has proved as security.^
12. Buckner v. Stewart, 34 Ala. Compare Davis v. Bauer, 41 Ohio
529; Briggs v. Hinton, 14 Lea St. 257.
(Tenn.) 283; Mason v. Pierrson, 69 18. Cane v. Burney, 6 Ala. 780.
Wis. 590, 34 N. W. 921. 19. Cathcart v Foulke, 13 Mo.
13. Warner v. Morrison, 3 Allen 561; Thomas v. Hubbell, 15 N. Y.
(Mass.) 566; Pitt v. Purssard, 8 405; Malin v. Bull, 13 Serg. & R.
Mees & W. 538. (Pa.) 441.
14. Machado v. Ferandez, 74 Cal. 20. Rice v. Rice, 14 B. Mon. (Ky.)
362, 16 Pac. 19. 335; Konitzky v. Meyer, 49 N. Y.
14a. Galson v. Brand, 75 111. 148; 571.
Hotham v. Berry, 82 Kan. 412, 108 21. Eubanks v. Sites (Tex. Civ.
Pac. 801; Felton v. Bissel, 25 Minn. App. 1912), 146 S. W. 952, quoting
20; Craig v. Craig, 5 Rawle (Pa.) from Freeman on Judgments, p. 200.
98. 22. Coffee v. Tevis, 17 Cal. 239;
15. Burnell v. Minot, 4 Moor 340, Williams v. Riehl (127 Cal. 365), 59
16 E. C. L. 375. Pac. 762.
16. Stockmeyer v. Oertling, 35 La. 23. Johnson v. Vaughn, 65 111.
Ann. 469. 425; Bachelder v Fiske, 17 Mass..
17. Houck V. Graham, 106 Ind. 464; Paulin v. Kaighn, 29 N. J. L.
195, 6 N. E. 594. 483.
§§ 194b, 195 'Suretyship and Guaranty. 224
Contribution originally was enforceable only in courts of equity,
but now also in courts of law, wbich take jurisdiction on the ground
of an implied promise on the part of each joint debtor or surety to
contribute his share to make up the loss.^"*
§ 194b. Right to Contribution — Not Subject to Judicial Con-
trol, — The right of contribution is a real one growing out of the
relations of the parties, not a mere privilege to be extended or not
in judicial discretion. The right may be contracted away or lost
by violation of some co-relative right, but it is not within the prov-
ince of the court to give it or to take it away.^^
§ 194c. Right to Contribution — Accommodation and Compen-
sated Sureties. — The question of contribution is not affected by
the fact that one of two co-sureties is a surety for coinpensation
while the other is a surety for accommodation.^'^
§ 195. Payment by Note. — One surety may make payment by
his own negotiable note when the debt is due, and then compel con-
tribution from the other co-sureties, though his own note is not yet
-due.^^ This is so because his negotiable note is equivalent to
24. Powers v. Nash, 37 Me. 322; the law. The court is to apply the
Oldham v. Brown, 28 Ohio St. 41. law as it is given, not make it for
25. Estate of Koch, 148 Wis. 548, the found situation."
134 N. W. 663, Per Marshall, J., who 26. United States Fidelity & Guar-
further said: "The individual anty Co. v. McGinnis Adm'r, 147 Ky.
chancellor cannot, as an original C. 781, 145 S. W. 1112; citing Lewis'
proposition do in each case what Adm'r v. United States Fidelity &
he may think will fit the facts from Guaranty Co., 144 Ky. 425, 138 S. W.
the standpoint of justice in the ab- 305.
stract. He cannot merely seize 27. Illinois. — Ralston v. Wood, 15
upon his ideal in the moral sense 111. 171.
and vitalize it by a decree. That Indiana. — Nixon v. Beard, 111 Ind.
would make contribution depend on 137, 12 N. E. 131.
arbitration in the habiliments of ju- Massachusetts. — Chandler v.
dicial administration. Contribution Brainard, 14 Pick. 285.
is dependable upon pretty definitely Missouri. — Ryan v. Krusen, 76 Mo.
established legal rules, applicable A- p. 496.
to situations which may vary greatly Nebraska. — Smith v. Mason, 44
as regards facts but fall into pretty Neb. 610, 63 N. W. 41.
well defined general classes. The >'ew York. — Wetherby v. Mann, 11
facts dependable upon concession or Johns. 518.
evidence, or both, being found, the As to surety giving his own note
class and result are governed by in payment of the, see also § 180.
225 Rights of Co-sureties. § 196
money ; and as the maker will be liable to the indorser, he might
be subject to a double liability unless the note should be deemed
as payment of the debt for which it was given. And substituting
a negotiable note is such a payment as will entitle the surety who
gave it to maintain indebitatus assumpsit against the co-surety for
<K)ntribution ; because indehtitatus assumpsit lies only upon a prom-
ise to pay money or its equivalent. But where one of several
sureties has satisfied the debt without advancing any money or any-
thing equivalent, the law does not imply any promise by a co-
surety to pay money in contribution ;^^ hence, payment by a bond
or non-negotiable paper will not entitle the surety to contribution.^'
But in some jurisdictions payment made in any mode, either in
property, negotiable paper, or securities, is sufficient, if such pay-
ment is received as a full satsfaction of the demand, and will be
treated as cash, even if it be a bond f^ because a bond is equivalent
to coin.^^ And the payment is sufficient to compel contribution,
though the maker becomes insolvent and never pays the uote.'^
But if the creditor delivers the note to the maker as a gift before
the surety tries to compel contribution, he has no equity to recover
contribution against his co-sureties.^^
§ 196. Enforcement at Law. — At law, if one co-surety pays
the whole debt, his right to contribution is complete. But he can-
not sue two or more jointly, but he must sue each separately, and
he can only recover from each an aliquot portion of the debt, to be
ascertained by the number of sureties, and in many States with-
out regard to their solvency.^* Thus, where a co-surety has paid
28. Wetherby v. Mann, 11 Johns. Texas, — Bouhward r. Robinson, 8
<N. Y.) 518. Tex. 32.
29. California. — Stone v. Hammell, Wisconsin.— Earth t. Graf, 101
83 Cal. 547, 23 Pac. 703. Wis. 27, 76 N. W. 1100.
Indiana.— White v. Miller, 47 Ind. 30. Ralston v. Wood, 15 111. 159,
385. 171; Robertson v. Maxcey, 6 Dana
Missouri. — Huse t. Ames, 104 Mo. (Ky.) 104.
SI, 15 S. W. 965. 31. Cox v. Reed, 27 111. 434.
New York. — Cummings v. Hock- 32. Owen v. McGehee, 61 Ala. 440.
ley, 8 Johns. 202. 33. Stebbins v. Mitchell, 82 Ky.
Fennsylyania. — Morrison v. Ber- 535.
key, 7 Serg. & R. 238. 34. Illinois.- Sloo v. Pool, 15 111.
South Carolina. — Peters v. Bay- 48; Moore v. Bruner, 31 111. App.
hill, 1 Hill 237. 400.
15
§ 196
ISURETYSHIP AND GUARANTY.
226
a note, he is entitled to contribution from eacli of his co-sureties
in aliquot parts according to their number, with interest and other
necessary expenses.^" But when the co-surety pays no attorney fees,
he cannot collect them pro rata from his co-sureties, because a co-
surety cannot speculate off his co-sureties.^^ Where the employ-
ment of counsel is prudent and necessary, the surety who pays at-
torney fees under such circumstances is entitled to contribution,
the same as another surety who pays the judgment or decree recov-
ered against him.^^ So contribution may be enforced for necessary
traveling expenses.^
When a partnership is a co-surety, it is but a unit as to the
question of contribution."*
In some of the States contribution is given at law as well as in
equity, according to the number of solvent sureties.^'' And so in
those States where the distinction between law and equity has been
abolished, the number of solvent sureties liable to contribution is
Kentucky. — Morrison v. Poyntz, 7
Dana 307.
North Carolina.— See Board of
Commissioners of Davidson Co. v.
Dorset, 151 N. C. 307, 66 S. B. 132.
Oregon. — Fischer v. Garther, 32
Oreg. 161, 51 Pac. 736.
Texas. — See Smart v. Panther, 42
Tex. Civ. App. 262, 95 S. W. 679.
England.— Cowell v. Edwards, 2
Bos. & P. 268.
Compare McAllister v. Irwin's Es-
tate, 31 Colo. 253, 73 Pac. 47, upon
the question of insolvency of one
or more of the sureties. Also cases
cited subsequently in this section on
this point.
Prior equities not considered in a
suit at law. Knight v. Weeks, 115
Fed. 970, 53 C. C. A. 366.
Tlie Missouri statnte conferring a
right of action at law did not take
away the remedy at equity, but
simply conferred a cumulative rem-
edy. D>'sart V. Crow, 170 Mo. 275,
70 S. W. 689, construing Rev. St.
1899, §§ 4504-4509.
35. Dodd V. Winn, 27 Mo. 504;
Slothoff V. Dunham, 19 N. J. L. 181;
Acers v. Curtis, 68 Tex. 423, 4 S. W.
551.
36. Acers v. Curtis, 68 Tex. 423, 4
S. W. 551.
87. Davis v. Emerson, 17 Me. 64;
Gross v. Davis, 87 Tenn. 226, 11 S.
W. 92; Fletcher v. Jackson, 23 Vt.
581.
38. Preston v. Campbell, 3 Hay-
wood (Tenn.) 20.
39. Chaffee v. Jones, 19 Pick.
(Mass.) 260.
40. Colorado. — McAllister v. Ir-
win's Estate, 31 Colo. 253, 73 Pac.
47.
Indiana. — Michael v. Allbright,
126 Ind. 172, 25 N. E. 902.
New Hampshire. — Currier v.
Baker, 51 N. H. 613.
South Carolina. — Harris v. Fergu-
son, 2 Bailey L. (S. C.) 397.
Vermont. — Mills v. Hyde, 19 Vt.
59; Liddell v. Wiswell, 59 Vt. 365, 8
Atl. 680.
227 Rights of Co-sueeties. § 197
the basis of apportionment.^^ And contribution is apportioned
among solvent sureties by statute in some States/^
In case the portion due from one of the sureties is paid by him
and the suit against him is dismissed the remaining sureties have
no cause for complaint upon this ground as their liability is not
thereby affected."
§ 197. Enforcement in Equity. — In equity, in a suit by a
surety against his co-surety for contribution, only the solvent co-
sureties are taken into account. ^^
In courts of equity when an adjustment of conflicting claims
became necessary and a surety brought suit for contributions
against co-sureties, it was usually required to make the principal
and all solvent sureties, resident within the State, parties plaintiff
or defendant, that a full determination of interests involved could
be had in one and the same suit.^^ And it has been decided that
in such a suit the bill is not subject to objection on the ground of
misjoinder of defendants because two of the co-sureties were al-
leged to have paid their share of the contribution.^^ The surety can
recover in equity a pro rata amount paid by taking into considera-
tion the number of solvent sureties by excluding the insolvent
ones.^^ And in considering the nimiber of solvent co-sureties, the
removal of a surety from the State is, for this purpose, equivalent
42. Connecticut. — Security Ins. Co. 45. Gross v. Davis, 87 Tenn. 226,
V. Ins. Co., 50 Conn. 233. 11 S. W. 92.
Michigan. — Stewart v. Goulden, 52 In Kentucky a surety may sue
Mich. 143, 17 N. W. 731. his co-surety for contribution either
Nebraska. — Smith v. Mason, 44 in equity or law. Pritts v. Kirch-
Neb. 610, 63 N. W. 66. dorfer (Ky. 1910), 124 S. W. 882.
Jforth Carolina. — Scott v. Bryan, 46. Hudson v. Aman (N. C. 1912),
96 N. C. 289, 3 S. E. 235. 74 S. E. 97, citing Rainey v. Yar-
Yirginia. — Roberts v. Trigg, 32 borough, 37 N. C. 249, 38 Am. Dec.
Gratt. (Va.) 26. 681; Adams v. Hayes, 120 N. C. 383,
43. Couch V. Terry, 12 Ala. 227; 27 S. E. 47.
Van Petten v. Richardson, 68 Mo. 47. Dysart v. Crow, 170 Mo. 275,
382; Dodd v. Winn, 27 Mo. 504; Mag- 70 S. W. 689.
ruder v. Admire, 4 Mo. App. 133; 48. Osterly v. Barber, 66 N. Y.
Faurot v. Gates, 86 Wis. 569, 57 N. 433; Braman v. Blanchard, 4 Wend.
W. 294. (N. Y.) 435; Preston v. Preston, 4
44. Carter v. Fidelity & Deposit Gratt. (Va.) 88.
Co., 134 Ala. 369, 32 So. 632.
I 197 iSuBETYSHIP AND GuABANTY. 228
to insolvency, and the non-resident co-surety will not be counted ;*
and so an insolvent co-surety need not be made a party to the suit.**
At law, while there is a conflict of authority upon the subject, the
weight of authority seems to be that insolvency of the principal
debtor need not be averred in order to establish the right of con-
tribution ; because this right is founded upon the implied promise
of each surety to pay an aliquot part of the debt in case of the prin-
cipal's default. And as the action against each is separate and de-
pendent upon an enforcement of the strict letter of the implied
assumpsit, the default, and not the insolvency of the principal, is
the ingredient that renders the remedy effectual. .But equity, to
prevent a multiplicity of suits and avoid a circuity of remedies,
will compel the surety who has paid the debt to recover the same
from the principal if he is solvent, on the theory that his co-surety,
in equity, may be compelled to contribute in excess of his implied
agreement ; so in that forum he cannot be compelled to respond, at
all, if the principal is solvent; hence the necessity of alleging the
insolvency of the principal as a condition precedent to the right of
contribution in equity. Many decisions, though not all, support
this doctrine, and hold that it is incumbent upon the plaintiff in a
suit in equity to allege the insolvency of the principal as a condi-
tion precedent to the enforcement of contribution of co-sureties.^^
If a surety secures consent of his co-surety to a compromise of
their joint claim against the principal obligor, without disclosing
an advantage obtained in the transaction, the failure to disclose
being without actual intent to defraud, he is guilty of constructive
fraud, and is liable to share in some proper way the advantage
with such co-surety.^^
49. Connecticut. — Security Ins. Wisconsin. — Faurot v. Gates; 86
Co. V. Ins. Co., 50 Conn. 233. TT^s. 569, 57 N. W. 294.
Kentucky.— Bosley v. Taylor, 5 60. Johnson v. Vaughn, 65 111.
Dana 159. 425; Ellesmere Brewing Co. v.
New Hampshire.— Boardman v. Cooper (1896), 1 Q. B. 75.
Paige, 11 N. H. 431. 61. Morrison v. Poyntz, 7 Dana
Sontli Carolina, — McKenna v. (Ky.) 307; Fischer v. Gaither, 32
George, 2 Rich. Eq. 15. Ore. 161, 51 Pac. 736; Gross v. Daviar,
Texas.— Acers v. Curtis, 68 Tex. 87 Tenn. 226, 10 Am. St. Rep. 637.
423, 4 S. W. 551. 62. Estate of Koch, 148 Wis. 548,
Yermont.- Liddell v. Wiswell, 59 134 N. W. 663.
Vt. 365, 8 Atl. 860.
229 Eights of Co-sureties. §§ 198, 199
§ 198, The Co-surety Cannot Speculate to the Injury of His
Co-surities. — The surety paying cannot speculate and thereby
derive benefits not shared by his co-sureties. Thus, if a co-surety
purchased the note of the principal for less than its face value, his
€0-sureties are entitled to share in the benefits of the bargain,^^ So
if a surety pays less than the whole debt, he can recover only the
pro rata share from the other sureties, of the amount he paid.^*
In order to recover of the co-sureties, he must pay in excess of his
share of the debt.^^ If he pays the debt in property, the value of
the property is the basis upon which contribution can be enforced.^®
When a surety has bought the claim of his principal at a dis-
count, he cannot compel his co-sureties to contribute more than
their just proportion of the sum paid ; otherwise the co-sureties
would stand in a worse position than the principal;" that is, he
can recover only the proportionate amount of the sum paid by him
when it is in excess of his share of payment.^^
§ 199. Surety of a Surety. — A surety of a surety is not liable
to contribution to a debt of a co-surety of the principal.^^ Thus,
where a party signs a note as security for one who is himself only a
surety for the principal maker, he is not liable in a suit for con-
tribution by the one for whom he signed as surety.^*
53. Aoers v. Curtis, 68 Tex. 423, 4 Massachusetts. — Kelly v. Page, 7
S. W. 551. Gray 213.
64. Morgan v. Smith, 70 N. Y. 537; Texas. — Edmonds v. Sheahan, 47
Gcurdin v. Trenholm, 25 S. C. 362; Tex 443.
Bryan v. McDonald, 15 Lea (Tenn.) Virginia.— Tarr v. Ravenscroft, 12
581; Lowell v. Edwards, 2 Bos. &. P. Gratt. 642.
268; Browne v. Lee. 6 Barn. & C. England. — In re Arcedeckna, 24
689. Ch. Div. 709.
55. Fletcher v. Grover, 11 N. H. 69. Baldwin v. Fleming, 90 Ind.
368. 177; Knox v. Vallandingham, 13
66. Jones v. Bradford, 25 Ind. 305; Smed. & M. (Miss.) 520; Tom v.
Hickman v. McCurdy, 7 J. J. Marsh. Goodrich, 2 Johns. (N. Y.) 214;
(Ky.) 555. Adams v. Flanagan, 36 Vt. 400.
67. Fuselier v. Babeneau, 14 La. Compare Stout v. Vause, 1 Rob.
Amn. 777; Mason v. Lord, 20 Pick. (Va.) 179.
(Mass.) 447; Currier v. Fellows, 27 60. Robertson v. Deatharge, 82 111.
N. H. 366; Sinclair v. Redington, 56 511; McCoIIum v. Broughton, 133
N. H. 146. Mo. 601, 30 S. W. 1028, 33 S. W. 476,
68. Alabama. — Owen v. McGehee, 34 S. W, 480.
61 Ala. 440.
§§ 200, 201 Suretyship and Guaranty. 230
i; 200. Obligation to Contribute. — ^At law the obligation to con-
tribute is a several, and not a joint, obligation." So a co-surety
who is a non-resident, is not a necessary party defendant to an
action for contribution, as the liability of co-sureties to each other
is not joint, but several.*'^ At law, he can only recover from each
co-surety severally an aliquot proportion of the debt, ascertained by
the whole number of co-sureties.^^ And at law he may recover un-
der the common counts the amount due by way of contribution
from each co-surety.^* And he may recover necessary attorney
fees and other expenses in litigation with the principal.^''
If the sureties be to the same party for the same principal and
to the same extent, it is not material, so far as the right of contribu-
tion is concerned, whether the sureties were bound jointly or sev-
erally, or by the same or by distinct undertakings.*^''
A breach of one surety of his duty to a co-surety, causing loss
to the latter, to that extent, is a legal and equitable defense in his
behalf against any claim of the former for contribution."
§ 201. Liability of Surety's Estate. — One surety who has paid
the debt is entitled to be subrogated to all the rights and remedies
of the creditor as against his co-surety in precisely the same man-
ner as against the principal debtor. Hence, he can have contribu-
tion from the estate of a co-surety who is dead.^^ And this right to
61. Adams v. Hayes, 120 N. C. 383, anty Co. v. McGinnis' Adm'r, 147 Ky.
27 S. E. 47; Graves v. Smith, 4 Tex. 781, 145 S. W. 1112.
Civ. App. 537; Johnson V. Harvey, 84 67. Estate of Koch, 148 Wis. 548,
N. Y. 363. 134 N. W. 663.
62. Voss V. Lewis, 126 Ind. 155, 25 68. United States.— Lidderdale v.
N. E. 892. Robinson, 12 Wheat. 594, 6 L. Ed.
63. Sloo V. Pool, 15 111. 47; Moore 740.
V. Bruner, 31 111. App. 400; Porter v. Alabama.— Handley v. Heflin, 84
Horton, 80 111. App. 333; Odlin v. Ala. 600, 4 So. 725.
Greenleaf, 3 N. H. 270; Harvey v. Illinois.— Conover v. Hill, 76 111.
Drew, 82 111. 606. 342.
64. Porter v. Horton, 80 111. App. Indiana. — Landers v. Weelburg,
333; Powell v. Edwards, 2 Bos. & P. 107 Ind. 266, 7 N. E. 573.
267. New York. — Johnson v. Harvey, 84
65. Gross v. Davis, 87 Tenn. 226; N. Y. 363.
Fletcher v. Jackson, 23 Vt. 581; Pennsylvania. — Malln v. Bull, 13
Davis v Emerson, 17 Me. 64. SerR. & R. 441.
66. United States Fidelity & Guar- Vorniont.— Fletcher v. Jackson, 23
Vt. 56.
231 Rights of Co-sukjeties. § 202
contribution may he had against the heirs of the co-surety, after
the discharge of the administrator.^^ And the distributees must
contribute in proportion to what they have received.^" It is the
general rule that the estate of a deceased co-surety is liable to con-
tribution, whether he died before or after the liability arises.^^
And the administrator of the estate of a deceased surety who
tas paid the debt of the principal may proceed against the co-
sureties for contribution.^^
§ 202. Remedy Against Co-surety Before Payment. — A co-
surety, before he pays the debt, may, it is held, maintain a suit in
-equity compelling contri'bution, after the debt is due and unpaid.
Thus, it has been decided that a surety against whom a judgment
has been obtained by the creditor for the full amount of the debt
secured, but who has paid nothing in respect thereof, can maintain
an action against a co-surety to compel him to contribute towards
the common liability,''^ and that before the payment of the debt
which is due, any one of several co-sureties may maintain a suit
in equity against his co-surety to contribute to the payment of the
debt if the principal is unable to pay it.^*
And so a surety may bring suit in equity against a co-surety for
contribution, when the latter is about to make a fraudulent disposi-
tion of his property so as to escape liability in payment of the
principal's debt, who is insolvent.^^ But when the surety is pri-
marily liable to pay the debt, his action at law or in equity cannot
be maintained until he has paid the amount. Until he has paid,
Yirginia, — Pace v. Pace's Adm'r, son v. McDowell, 130 N. C. 246, 41 S.
95 Va. 792, 30 S. E. 361. E. 287.
69. Gibson V. Mitchell, 16 Fla. 519; 73. Walmerhausen v. Gulllck
Stevens v. Tucker, 87 Ind. 109; Zol- (1893), 2 Ch. 514.
lickoffer v. Seth, 44 Md. 359. Kig'ht to proceed under Georgia
70. Zollickhoffer v. Seth. 44 Md. Ciyil Code, §§ 2985-2989, where surety
359. pays part of debt, see Cooper v.
Compare Primrose v. Bromley, 1 Chamblee, 114 Ga. 116, 39 S. E. 917.
Atk. 90; Waters) v. Riley, 2 Har. & 74. Hyde v. Tracy, 2 Day (Conn.)
G. (Md.) 305. 492; Hodgson v. Baldwin, 65 111.532;
71. Vliet V. WyckofE, 42 N. J. Eq. Morrison v. Poyutz, 7 Dana (Ky.)
642. 307.
72. Norwood v. Washington, 136 75. Smith v. Rumsey, 33 Mich. 183;
Ala. 657, 33 So. 869. Examine Robin- Bowen v. Haskins, 45 Miss. 183.
§ 203
Suretyship and Guaeanty.
232
there is neither an equitable obligation or an implied contract to
make such contribution.^^
§ 203. Co-sureties Under Different Instruments. — It is well
settled that parties may be co-sureties under different instruments,
at different times, and without the knowledge of each other, pro-
vided that the obligations into which they enter are for the same
engagement and for the same principal. It is sufficient for the
right to claim contribution that it appears that the parties are
under obligation to pay the same debt as sureties for a third per-
son." And this rule applies to sureties on successive bonds. Thus,
where sureties on an executor's bond are discharged and new
sureties taken, the two sets of sureties become jointly liable for
breach of the bond which occurred before the discharge, and the
76. Massachnsetts. — Mason v.
Lord, 20 Pick. 447.
Missoari. — Weidmeyer v. Landon,
66 Mo. App. 520.
New York. — Morgan v. Smith, 70
N. Y. 542.
Ohio. — Covey v. Bostwick, 20 Ohio
St. 337.
Tennessee. — Gros& v. Davis, 87
Tenn. 226, 11 S. W. 92.
Texas. — Glasscock v. Hamilton, 62
Tex. 166.
Virginia. — Gordon v. Rixey's Adm'r,
86 Va. 853, 11 S. B. 562.
Wisconsin. — Bushnell v. Bushnell,
77 Wis. 435, 46 N. W. 442.
77. California. — Powell v. Powell,
48 Cal. 234.
Georgia. — Waldrop v. Wolff, 114
Ga. 610, 40 S. E. 830; Snow v.
Brown, 100 Ga. 117, 28 S. E. 77.
Illinois. — Golson v. Brand, 75 111.
148.
Indiana. — Houck v. Graham, 106
Ind. 195, 6 N. E. 594, 55 Am. Rep.
727.
Kentncky.— Bosley v. Taylor, 5
Dana 157, 30 Am. Dec. 677; Brecken-
ridge V. Taylor, 5 Dana 110.
Louisiana. — Stockmeyer v. Oert-
ling, 35 La. Ann. 467.
Massacliusetts. — Warner v. Morri-
son, 3 Allen 566; Chaffee v. Jones,
19 Pick. 260.
Michigan. — Shumfelt v. Moore, 93
Mich. 564, 53 N. W. 722.
Minnesota. — Young v. Shunt, 30
Minn. 503, 10 N. W. 402.
New Hampshire. — Presoott v. Per-
kins, 16 N. H. 305.
New York. — Aspinwall v. Sacchi,
57 R Y. 531; Norton v. Coons, 6 N.
Y. 33; Toucey v. Schell, 15 Misc. 359,
37 N'. Y. Supp. 879; Atwater v. Far-
thing, 118 N. C. 388, 24 S. E. 736.
North Carolina — Jones v. Blenton,
41 N. C. 115. 51 Am. Dec. 415.
Ohio. — Robinson v. Boyd, 60 Ohio
St. 57, 53 N. E. 494.
Oregon. — Thompson v. Dekum, 32
Ore. 506 52 Pac. 517.
South Carolina. — Harris v. Fergu-
son, 2 Bailey 397.
Tennessee. — Odom v. Odom, 2
Baxt. 446.
Vermont. — Flanagan v. Post, 45
Vt. 246.
Virginia. — Rosenbaum v. Good-
man, 78 Va. 121.
233 Eights of Co-sueeties. §§ 204, 205
right of contribution exists as between co-sureties.'^ And two per-
sons are co-sureties when one is on a general official bond and the
other on a special bond required under the same obligation with
relation to a special debt.'^
§ 204. The Obligation Must Be the Same. — If the obligation
of the different sureties are for wholly different things, or have no
relation to each other, though they arise out of the same original
indebtedness, then there is no right of contribution among the
several sureties.^" iSo where one of the sureties and the principal
execute a new note, which takes the place of the old note, the surety
upon such new note will not be entitled to contribution from the
other sureties upon the old note for which the new note was exe-
cuted.*^
§ 205. Co-sureties Limiting Their Liability in Different
Amounts. — Co-sureties may limit their liability. So where two
or more persons bind themselves as sureties for a common prin-
cipal and in different amounts, in case of contribution, they are
liable in proportion to the limitation of their respective liability,
and not in equal amounts. Where the claim of the creditor is to
the full amount, each must pay up to the fixed limit of his liability ;
but where the claim is less than such full amount, and is dis-
charged by one, the claims must be proportionately borne by the
others, even where the claim does not exceed the fixed limit of the
Wisconsin. — Rudolf v. Malone, 104 Pennsylyania. — Commonwealth v.
Wis. 470, 80 N. W. 743. Cox, 36 Pa. St. 442.
England. — Ellesmere Brewing Co. See § 209 herein, as to liability to
V. Cooper (1896) 2 Q. B. 75; Deering contribute on successive bonds.
V. Winchelsea, 1 Cox 318; Craythorne 79. Elbert v. Jacoby, 8 Bush (Ky.)
V. Swinburne, 14 Ves. 164; In re 547; Cherry v. Wilson, 78 N. C. 164.
Ennis (1893), 3 Ch. 238. 80. Salyers v. Ross, 15 Ind. 130;
78. Illinois.— Pinkstaff v. State, 59 Kellar v. Williams, 10 Bush (Ky.)
111. 148. 216; Rosenbaum v. Goodman, 76 Va.
Massachnsetts. — Choate v. Arring- 121.
ton, 116 Mass. 552. See, also, cases cited in preceding^
Missouri. — State v. Berring, 74 section.
Mo. 87. 81. Tittle v. Bennett, 94 Ga. 405, 21
New York.— Scofield v. Churchill, S. E. 62; Bell v. Boyd, 76 Tex. 133.
72 N. Y. 565. See, also, Chapman v. Garber, 46
Neb. 16, 64 N. W. 362.
£- 206 Suretyship and Guaranty. 234
liability of the surety who has paid.^^ Where the same default of
the principal renders all the co-sureties responsible, they must con-
tribute equally if each is a surety to an equal amount ; but if not
equal, then proportionately to the amount for which each is a
surety.^^
■Sureties for the same principal and for the same engagement,
even although bound by different instruments and for different
amounts have a common interest and a common burden ; so if one
security who is directly liable to the creditor pays such creditor, he
can claim contribution from his co-sureties, whose obligations to the
creditor he has discharged. Where sureties are bound jointly and
severally, but limit their liability, the liability can only be en-
forced against each surety to the limit of the liability fixed in the
instrument; and when one has paid to the limit of his liability,
there can be no contribution exacted from him. And if the cir-
cumstances are such that he discharges the obligation for less than
his individual limit, yet he can compel contribution from the other
co-sureties.^^
But though the sureties may agree among themselves as to the
amounts in which they will be bound yet such agreement may not
be controlling where the extent of their individual liability is the
subject of statutory control.^^
§ 206. Accommodation Indorsers. — Some courts hold that, in
the absence of agreement, the legal liability of the parties to a
promissory note is to be determined by the relation they bear to
such note ; and the fact that one of them is the principal debtor,
and the others sign for his accommodation, will not change this
note or make the whole number signing co-sureties as to each
other.*^ Thus, where one of two accommodation signers executes
82. Ellesmere Brewing Co. v. 86. United States. — McCarty v.
Cooper (1896), 1 Q. B. 75. Roots, 21 How. 432, 16 L. Ed. 162;
83. Pendlebury v. Walker, 4 Y. & McDonald v. Magruder, 3 Pet. 470,
C. (Exch.) 424; Steel v. Dixon, 17 7 L. Ed. 744.
Ch. D. 825; In re Arcedeckne, 24 Ch. Alabama. — Sherrod v. Rhodes, 5
D. 709. Ala. 683.
84. Ellesmere Brewing Co. v. Coniieeticnt. — Kersham v. Conklin,
Cooper (1896), 1 Q. B. 75. 40 Conn. 81.
85. Board of Com'rs of Davidson Indiana. — Armstrong v. Harsham,
County V. Dorsett, 151 N. C. 307, 66 61 Ind. 52.
S. E. 132.
235 Rights of Co-sueeties. §§ 207, 208
a note as joint maker with the principal debtor, and the other a3
payee and indorser, and there is no special agreement between
them, they are not co-sureties.*^ However, this is not the law in
other jurisdictions, and accommodation indorsers are considered as
co-sureties and liable to contribution. Thus, where successive in-
dorsers, by indorsing as an accommodation of maker of the note,
though at different times and without mutual agreement, they are
held as co-sureties, and in equity will be liable to contribution.**
§ 207. Surety in Legal Proceedings. — Where a party becomes
a surety in the course of legal proceedings to collect a debt from
the principal debtor, he is not a co-surety with the original surety
for the debt when contracted, and is not liable to contribution to
the original surety ; neither is he liable to the other.** If the orig-
inal surety pays the debt he will be substituted in the place of the
creditor or obligee to the exclusion of the surety in the legal pro-
ceedings.*"
§ 208. Indemnity to One Surety. — The indemnity to one
surety inures to the benefit of the others.*^
Inherent in a joint contract of guaranty is an implied mutual
Michigan. — McGurk v. Huggett, Virginia, — Rosenbaum v. Good-
50 Mich. 187. man, 78 Va. 121; Preston v. Preston,
South Carolina, — Aiken v. Barkley, 4 Gratt. 88 ; Langford v. Perrin, 5
2 Spear 747. Leigh. 552.
Yirginia. — Hogue v. Davis, 8 Grat. As to sureties on bonds in legal
4. proceedings, see Chap. IX. herein.
87. Wilson v. Stanton, 6 Blackf. 90. Pott v. Nathans, 1 Watts & S.
(Ind.) 507; Hillegas v. Stephenson, (Pa.) 155; Schmitzel's Appeal, 49
75 Mo. 118. Pa. St. 23; Wolf v. Stover, 107 Pa.
88. Freeman v. Cherry, 46 Ga. 14; St. 206.
Dillenback v. Dygert, 97 N. Y. 303; 91. Alabama,— Steele v. Mealing,
Daniel v. McRae, 2 Hawks (N. C.) 24 Ala. 285.
590; Atwater v. Farthing, 118 N. C. Illinois.— Silver v. Dowell, 53 111.
388, 24 S. E. 736; Stovall v. Bank, 260.
78 Va. 188. Indiana.— Moorman v. Hudson, 125
See § 14. Ind. 504, 25 N. E. 593; Kalso v.
89. Alabama.— Diinlop v. Foster, 7 Kalso, 16 Ind. App. 615, 44 N. E.
Ala. 734; John v. Jones, 16 Ala. 454. 1013, 45 N. E. 1065.
Ohio. — Smith v. Berry, 3 Ohio 33. Iowa. — Rembrant v. Johnson, 62
Pennsylvania, — Pott v. Nathans, 1 Iowa 155, 17 N. W. 452.
Watts & S. 155. North Carolina.— Carr v. Smith,
Tennessee.— Chaffin v. Campbell, 129 N. C. 232, 39 S. E. 831.
4 Sneed 184.
§ 208 iSuRETYSHIP AND GuAEANTY. 236
agreement that any special means of immunity from or indemnity
for, loss acquired by one of the sureties shall be held and used,
reasonably for the common benefit of them all. A surety having-
control of such means is a quasi-trustee for his associates with all
incidental duties.^^ The right of the co-surety to share in the in-
demnity given to another surety, results not from contract or inten-
tion of the principal and surety, but from the principles of equity
arising out of the relation which the sureties bear to each other.'^
If the indemnity fails without any neglect of the party indem-
nified, then there is no right of contribution.^*
Proof of loss by a surety of the primary security within such
time and under such conditions as to raise an inference of negli-
gent performance, or disregard of the co-surety duty, there being
no explanation thereof, shows, prima facie, fatal negligence, for-
feiting the right of contribution.^^ If the surety has released or
wasted the security given him by the principal, he loses his right
to contribution to the extent of his indemnity,^^ and pro rata if he
hiis wasted a part of the indemnity.®^ And the surety indemnfied
must account to those who pay the debt.^^ If there are several de-
mands, with different co-sureties, indemnity given to one who is
liable on all should be proportioned among them.^^ If the co-
surety applies an indemnity bond to the payment of the debt, he
acquires no right thereby to a contribution against a co-surety.* It
does not prevent contribution because one surety takes property in
trust from the principal, to be applied on the debt.^
Oregon.— Farmers' Nat. Bank v. 7 N. E. 373; Chilton v. Chapman, la
Snodgrass, 29 Ore. 395, 45 Pac. 758. Mo. 470.
Wyoming. — Cramer v. Redman, 10 97. Goodloe v. Clay, 6 B. Mon.
Wyo. 328, 68 Pac. 1033. (Ky.) 230; Ramsey v. Lewis, 30
England.— Berridge v. Berridge, 44 Barb. (N. Y.) 203.
Ch. Div. 168. ^' Whiteman v. Harriman, 85 Ind.
92. Estate of Koch, 148 Wis. 548, 49; Hoover v. Mowser, 84 Iowa 43,.
134 N. W. 663. 50 N. W. 62.
93. Scribner v. Adams, 73 Me. 541. 99. Mueller v. Barge, 54 Minn. 514,.
94. Conley v. Buck, 100 Ga. 187, 28 56 N. W. 36; Barge v. Van Der Horck„
S. E. 97. 57 Minn. 497, 59 N. W. 630; Brown v.
95. Estate of Koch, 148 Wis. 548, Ray, 18 N. H. 102.
1:^4 N. W. 663. !• Gibson v. Shehan, 5 App. Dist.
9rr. Frink v. Peabody, 26 111. App. Col. 391.
290; Sanders v.Weelberg, 107 Ind. 266, 2. Roeder v. Niedermeier, 112
Mich. 608, 71 N. W. 154.
237 Rights of Co-sureties. §§ 209, 210
The rule that indemnity to one surety inures to the benefit of
the others is held not to apply where sureties have paid their pro-
portionate share of the debt and security is subsequently received
by one or more of them.^
§ 209. Liability to Contribute on Successive Bonds. — The giv-
ing of subsequent bonds with the same penalties for the perform-
ance of the obligor's duties, makes them cumulative securities, and
the liability of the sureties thereon for contribution is as if all had
signed the same bond ;* that is, the obligation of the sureties, as
between themselves, is as if they were all bound by the same instru-
ment* So where successive bonds are given for the faithful dis-
charge of a trust, all the bonds given during the continuance of the
trust are cumulative, and the sureties on each bond stand in the
relation of co-sureties to the sureties on all the other bonds.* But
jsuch sureties will not be liable to contribute, with a surety on an-
other bond, to the payment of an amount charged against an execu-
tor, or obligor, for interest on money of the estate loaned to the
latter surety.^
§ 210. Admissibility of Parol Evidence to Show That Parties
on a Promissory Note are Co-sureties. — The great weight of au-
thority is that parol evidence is admssible to show the true terms
subsisting ibetween the makers of a promissory note when con-
tribution is sought; and this is so whether their subscription ap-
pears to be that of principals or sureties. The reason upon which
the rule is founded is that the note is the measure of the contract
3. Cramer v. Redman, 10 Wyo. 328, North Carolina.— Pickens v. Mil-
fig Pac. 1103. ler, 83 N. C. 543.
4. Thompson v. Dekum, 32 Ore. Tennessee. — Odom v. Owen, 2 Baxt.
506, 52 Pac. 517, 755. 446.
5. Indiana. — Stevens v. Tucker, 87 England. — Deering v. Winchelsea,
Ind. 109. 2 Boe. & P. 279, 1 Ck)x. 310.
Kentncky. — Bosley v. Taylor, 5 6. National Surety Co. v. Di Mar-
Dana 157; Cobb v. Haynes, 8 B. Mon. Bico, 55 Misc. R. (N. Y.) 302, 105 N.
137. Y. Supp. 272.
Massachnsetts. — Brooks v. Whit- 7. Crisfield v. Murdock, 127 N. T.
man, 142 Mass. 399, 8 N. C. 117; 315, 27 N. E. 1046; Thompson v.
Lioring v. Bacon, 3 Cush. 465. Dekum, 32 Ore. 506; Eshleman v.
New York.— Armitage v. Pulmer, Bolenires, 144 Pa. St. 269, 22 Atl.
37 N. Y. 494. 758.
See §§ 9. 168.
§ 210 ISURETYSHIP AND GUARANTY. 238
between the makers and the payee, and not between the makers
themselves ; and tliat their correlative and interdependent relations
is a matter wholly collateral to the primary undertaking, so that
parol evidence establishing such relation does not vary the terms
of the instrument, or written contract.^ So parol evidence is com-
petent to show the relations existing between makers and guar-
antors or indorsers, who are bound by different, distinct and inde-
pendent contracts. Such evidence in this class of cases is to prove
a separate contract which was made by parol, and is of as high a
character as the law requires in such cases.^ And so the relations
between the parties can be shown by parol to be that of co-sureties,
even if the plaintiff's had been promisors and the defendant's estate
as indorser.^" And so a contract of indorsement is one implied by
the law from the blank indorsement, and can be qualified by ex-
press proof of a contract between the parties, and is not subject to
the rule that excludes proof to alter or vary the terms of an ex-
press agreement/^ As touching irregular indorsements, as be-
tween the maker or indorsee and indorser, or a surety and indorser,
or as between successive indorsers, the presumption which the face-
of the transaction imports may, as between accommodation parties
to the paper, be rebutted, and their true relations shown to be that
of co-sureties.^"
In the absence of agreement to the contrary, the parties to sl
8. Kansas.— Water Power Co. v. S.) 278, 12 L. Ed. 152; Weston v.
Brown, 23 Kan. 676. Chamberlin, 7 Gush. (Mass.) 404.
Massachusetts. — Mansfield v. Ed- 10. Clapp v. Rice, 13 Gray (Mass.)
wards, 136 Mass. 15. 406.
New York. — Barry v. Rawson, 12 11. McGlune v. Belt, 45 Mo. 174;
N. Y. 462. Dunn v. Wade, 23 Mo. 207; Ross v.
North Carolina.— Robinson v. Me- Espy, 66 Pa. St. 481.
Dowell, 130 N. C. 246, 41 S. E. 287; See also Narre v. Chittenden, 55
Williams v. Glenn, 92 N. C. 253. Ind. 462; Edelon v. White, 6 Bush
Oklahoma.— Stovall v. Adair, 9 (Ky.) 408; Denton v. Lytle, 4 Bush.
Okla. 620, 60 Pae. 282. (Ky.) 597; Sturtevant v. Randall, 53
Oregon. — Montgomery v. Page, 29 Me. 149; Easterly v. Barber, 66 N. Y.
Ore. 320, 44 Pac. 689. 433.
Tennessee. — Bank v. Layne, 101 Compare Johnson v. Ramsey, 43 N.
Tenn. 45, 46 S. W. 762. J. L. 280.
Burden of proof on party alleging 12. McNeilly v. Patchin, 23 Mo. 43 ;
he is not co-surety to show it. Carr Wade v. Creighton, 25 Ore. 455, 36-
V. Smith, 129 N. C. 232, 39 S. E. 831. Pac. 289.
9. Phillips V. Preston, 5 How. (U.
239 Rights of Co-sureties. § 211
promissory note are liable on it according to the legal effect of the
indorsements; that is, the maker is liable to the payee and the in-
dorsers, and the payee to the indorsers which indorse to the subse-
quent indorsee. It may be proved by parol evidence that the rela-
tions of the parties to each other is different from this rule ; that is,
that the payee or indorsee was the real principal, or that all the
parties were joint principals, or some of them joint sureties/*
There must have been at the time of entering into such relations
a contract between the accommodation parties, either expressed or
implied, to become co-sureties and to share in the loss which might
result from the obligations assumed, as without it the law fixes
their engagement, and the mere fact that they have become parties
for accommodation cannot change the result." So parol evidence
is admissible to show that one who, before delivery, for the accom-
modation of the maker of a promissory note, guaranteed the pay-
ment thereof by indorsement — is by a separate verbal agreement a
co-surety with one who signed upon the face thereof as joint and
several maker, and who was really a co-surety ;^^ and so one may
show by parol evidence that he is a surety, and not a co-surety for
a party/®
§ 211. Statute of Limitations. — The statute of limitations does
not begin to run against a surety suing a co-surety for contribution
until the liability of the surety is ascertained ; that is, until tho
claim of the principal creditor has been established against him by
payment or otherwise ; although at the time of the action for con-
tribution, the statute may have run, as between the principal cred-
itor and the co-surety."
13. Sweet v. McAlister, 4 Allen 16. Leeper v. Paschal, 70 Mo. App.
(Mass.) 354; Clapp v. Rice, 13 Gray 37.
(Mass.) 406. See § 58.
14. McI>onald v. Magruder, 3 Pet. 17. Colorado. — Buell v. Burlin-
(U. S.) 470, 476, 7 L. Ed. 744; Mc- game, 11 Colo. 164, 17 Pac. 509.
Carty v. Roots, 21 How. (U. S.) 432, Florida.— May v. Vann, 15 Fla. 533.
437, 16 L. Ed. 162; Kirschman v. Indiana.— Sexton v. Sexton, 35 Ind.
Conklin, 40 Conn. 81; McCune v. 88.
Belt, 45 Mo. 178; Stillwell v. How, Maryland. — Hooper v. Hooper, 81
46 Mo. 589; Hogue v. Davis, 8 Gratt. Md. 155, 174, 31 Atl. 508.
(Va.) 4. North Carolina. — Leak v. Coving-
15. Montgomery v. Page, 29 Ore. ton, 99 N. C. 559, 6 S E. 241.
320, 44 Pac. 689.
§ 212 Suretyship and Guaranty. 240
This right of contribution does not arise from contract on the
original instrument of joint obligation, but from the equity of one
who has paid more than his just share of a joint debt.^^
On payment by a surety in excess of his proportion of the joint
debt, he has a right of action for contribution, and the statute of
limitation begins to run from the date of such payment; if pay-
ments be by installments, then from the date of the several pay-
ments/*
§ 212. Bankruptcy of Co-surety. — In England and in several
of the States, a discharge of a surety in bankruptcy does not re-
lease him from lia^bility to contribution to his co-surety.^" While
a discharge in bankruptcy is a bar to liability of a surety for his
principal's debt, it is not to the equitable liability between co-
sureties in an action for contribution when the payment was made
subsequent to the discharge.^^ But in other States the discharge of
a surety in bankruptcy discharges him as to his liability as to con-
tribution to a co-surety.^^
Oregon. — Durbin v. Kuney, 19 Ore. Michigan. — McClatchle v. Dxirham,
71, 23 Pac. 661. 44 Mich. 435, 7 N. W. 76.
Pennsylvania. — Martin v, Frantz, Ohio. — Williams v. Rees, 15 Ohio
127 Pa. St. 389. 572.
England. — Wolmershausen v. Gul- Wisconsin. — Bushnell v. Bushnell,
lick (1893), 2 Ch. 514; Ex parte 77 Wis. 435, 46 N. W. 442.
Snowden, 17 Ch. Div. 44 ; Davies v. 20. Byera v. Alcorn, 6 111. App. 39.
Humphieys, 6 Mees. & W. 153. 21. Kerr v. Clark, 11 Humph.
18. Camp V. Bostwick, 20 Ohio St. (Tenn.) 77; Goss v. Gibson, 8
337. Humph. (Tenn.) 197; Liddell v.
19. lo-wa.— Preston v. Gould, 64 Wiswell, 59 Vt. 365, 8 Atl. 680;
Iowa 44, 19 N. W. 834; Wilson v. Clements v. Langley, 2 Nev. & M.
Crawford, 47 Iowa 460. 269.
Kentncky.— Wood v. Leland, 1 22. Hays v. Ford, 55 Ind. 52; Miller
Mete. 387. v. Gillespie, 59 Mo. 220; Hilleburton
Maryland.— Bullock v. Campbell, 9 v. Carter, 55 Mo. 435 ; Tobias t.
Gill. 182. Rogers, 13 N. Y 59; Hibernian Bank
T. Lacombe, 84 N. Y. 368.
^41 SuEETiEs ON Bonds in Lixjal Peoceedings. § 213
CHAPTER IX.
SUEETIES on bonds IN LEGAL PROCEEDINGS.
Section 213. Discharge of Surety on Dissolution of Attachment.
214. Exoneration of Sureties on Attachment Bonds.
215. Judgment of Non-suit.
216. Attachment Lien Being Discharged — Insolvency of Debtor.
217. Increase of Claim by Amendment of Declaration.
218. Bringing in New Parties as Defendants.
219. Trespass by Officer.
220. Delivery Bond — Rights of Surety to Property.
221. Void Bond.
222. Damages.
223. The Surety is Concluded by the Judgment Against His
Principal.
224. Appeal Bond — Discharge of Sureties.
225. Appeal to a Special Court.
226. Change of Issue and Parties.
227. Enlargement of Claim.
228. Agreement of Litigants.
229. Successive Appeal Bonds are Cumulatiy©.
230. Indemnity Bonds.
231. Liability on Indemnity Bonds.
232. Injunction Bonds — Liability of Surety.
233. When Suit May Be Brought for Breach.
234. Liability, Joint and Several.
235. What Law Governs.
235a. Liability and Damages.
236. Dissolution by Series of Orders.
237. Concluded by Judgment Against Principal.
238. Replevin Bond.
239. Discharge of Surety.
240. New Parties — Substitution.
241. Varying the Terms of the Bond.
§ 213. Discharge of Surety on Dissolution of Attachment. —
An attachment is a mere creation of the statute, and its existence
and operation in any case continues no longer than the statute pro-
vides it may.^ Attachment bonds which substantially comply with
the requirements of the statute which authorize them, will be up-
1. Hamilton v. Bell, 123 Cal. 93, 5&
Pac. 758.
IC
§§ 214, 215 'Suretyship and Guaranty. 242
held as valid, unless any other form than that prescribed is actually
prohibited. A mere informality will not vitiate them, and will be
upheld as a comman law obligation.^
It is the general rule that any voluntary obligation or agreement,
entered into for a valuable consideration by parties capable of con-
tracting, is valid at common law, unless it is repugnant to the
statute or contravenes the policy of the law.^
§ 214. Exoneration of Sureties on Attachment Bonds. — Where
an attachment has been made upon property which has been re-
turned to the debtor by his giving a delivery bond, the delivery
bond cannot be satisfied only by actual delivery of the property.
An offer to deliver can only be executed by bringing forward the
property, identifying it and tendering it to the proper officer.*
Telling the officer where the property is and to go and take it is
not sufficient, and the sureties will not be released.^ But an officer
may waive delivery.^
Where suit is brought against two principals, the discontinuance
as to one will not have the effect to discharge a bond which the
obligors have jointly given to dissolve an attachment. Nor is the
surety released. If he had desired to escape liability for a judg-
ment against only one of the obligors, he should have given a bond
limited to a judgment against all.^
§ 215. Judgment of Non-Suit. — An attachment is dissolved
upon the recovery of a judgment of non-suit entered in favor of the
obligors, whose property has been attached, and the sureties on the
bond given for the release of the attached property for a redelivery
thereof to the officer, are thereupon discharged, and their liability
is not revived or affected by a reversal of the judgment of non-
2. Purcell v. Steele, 12 111. 93; 5. Chapline v. Robertson, 44 Ark.
Allerton v. Eldridge, 56 Iowa 709, 202.
10 N. W. 252; Endress v. Ent, 18 6. Hansford v. Perrin, 6 B. Mon.
Kan. 236; Wight v. Keyes, 103 Pa. (Ky.) 595.
St. 567. 7. Poole v. Dyer, 123 Mass. 363;
S. United States v. Linn, 15 Pet. Dalton v. Barnard, 150 Mass. 473, 2$
(U. S.) 290, 10 L. Ed. 742; Pritchett N. E. 218.
V. People, 1 Gil. (111.) 525; Mosher Compare Andre v. Fitzhugh, 18^
V. Murphy, 121 Mass. 276. Mich. 93.
4. Pogue V. Joyner, 7 Ark. 462.
243 Sureties on Bonds in Legaj. Proceedings. §§ 216, 217
suit subsequently rendered and judgment for the obligee.^ Where
an attachment is dissolved, all the proceedings are quashed and be-
come of no effect, and the delivery bond falls, with the writ of
which it is the basis.^
§ 2x6. Attachment Lien Being Discharged — Insolvency of
Debtor. — When a redelivery bond is given and the officer restores
the property to the debtor, the lien is released. So if there is no
attachment in force, the lien being discharged, and the debtor goes
into bankruptcy or insolvency, this does not release the sureties on
the delivery bond ; their liability is not affected by the subsequent
insolvency of their principal;^" and the sureties' liability is not
changed by a subsequent discharge of the principal debtor in bank-
ruptcy."
§ 217. Increase of Claim by Amendment of Declaration. — In
some of the States peculiar systems of jurisprudence with respect
to suits in attachment, have grown up,^^ and everything in that
connection is held to be stricti juris; in other iStates, a more liberal
rule is followed, and no local statute or rule of local law is in-
volved, the power to amend is the same in attachment suits as in
other actions.^'
Thus, introducing additional items of indebtedness is conclusive
as to the identity of the action, and the surety must be considered
8. Hamilton v. Bell, 123 Cal. 93, 55 12. United States.— Tilton v. Co-
Pac. 758. field, 93 U. S. 163. 23 L. Ed. 858.
9. Gass V. Williams, 46 Ind. 253; Alabama. — Scott v. Macy, 3 Ala.
Fernaw v. Butcher, 113 Pa. St. 292, 250.
€ Atl. 67. Arkansas. — McKnight v. Strong,
See, also. Schunak v. Art Metal 25 Ark. 212.
Novelty Co., 84 Conn. 331, 80 Atl. Connecticut. — Johnson v. Hunt-
290. ington, 13 Conn. 47.
10. Rosenthal v. Perkins, 123 Cal. Iowa, — Wadsworth v. Cheney, 13
240, 55 Pac. 804; McComb v. Allen, Iowa 576.
82 N. Y. 114; Easton v. Ormsby, 18 Missouri. — Wood v. Squires, 28
R. I. 309. Mo. 397.
11. Bernheimer v. Charak, 170 New York. — Mango v. Edwards, 1
Mass. 179, 49 N. E. 81; Gass v. E. D. Smith 414.
Smith, 6 Gray (Mass.) 112. 13. Chapman v. Stucky, 22 111.
Compare Wise Coal Co. v. Colum- App. 31.
bia Zinc & Lead Co. (Mo. App. See McNeilly v. Driscoll, 208
1911), 138 S. W. 67. Mass. 293, 94 N. E. 273.
§§ 218, 220 Suretyship and Guaranty. 244
to have agreed to be liable for any judgment wbicb might be ren-
dered in the attachment proceedings."
But where the rule of attachment is held to be stricti juris, any
amendment introducing new matter will discharge the surety.
Whenever the amendment lets in some new demand or new cause
of action the sureties are discharged. ^^ But a mere formal defect
will not discharge the surety, if corrected, nor will an added count
for the same cause of action.^^ And where the liability is not in-
creased above the penalty in the bond, by increasing the ad
damnum, the surety is not released."
§ 2i8. Bringing in New Parties as Defendants. — The obligee
has no right to bring in new parties as defendants and discontinue
as to others already parties to the suit. Thus, if the plaintiff in
a suit upon an attachment bond, discontinues as to one defendant
and brings in a new party as defendant, without notice to the
surety, the surety is discharged, although the defendant as to whom
the action was discontinued was not a party to the bond.^^
§ 2ig. Trespass by Officer. — A surety on a delivery bond is
not liable for a trespass committed by an officer in attaching prop-
erty. Thus, a surety in an attachment bond, when the attachment
has been sued out for a good cause, is not responsible for the fail-
ure of the officer to discharge his duty and for a trespass committed
hj him.^^ Nor is a surety liable, as held by some courts, for a
trespass of an officer for seizing property on a void bond.^'^
§ 220. Delivery Bond — Rights of Surety as to Property. — As
between the surety and the owner of the property after redelivery,
the surety has the right to see that the property shall not be so dis-
14. Freeman v. Creech, 112 Mass. 101; Tucker v. White, 5 Allen
180; Prince v. Clarli, 127 Mass. 599; (Mass.) 323.
WilkSi V. Adcock, 8 Term R. 27. 19. Offterdinger v. Ford, 92 Va.
15. Kellogg V. Kimball, 142 Mass. 636, 24 S. E. 246.
124, 7 N. E. 728. 20. McDonald v. Felt, 49 Cal. 354;
16. Doran v. Cohen, 147 Mass. 342, Dawson v. Baum, 3 "Wash. Ter. 464.
17 N. E. 647. Compare Lovejoy v. Murry, 3
17. Townsend Nat. Bank v. Jones, Wall. 1, 18 L. Ed. 129; Wetzell v.
151 Mass. 454, 24 N. E. 593; Martin Waters, 18 Mo. 396; Herr-'ng v. Hop-
V. Moore, 2 Strange 922. pock, 15 N. Y. 409; Ford v. Williams,
18. Richards v. Storer, 114 Mass. 13 N. Y. 584.
245 SuEETiEs ON Bonds in Legal Proceedings. § 221
posed of, that delivery cannot be made according to the terms of
the bond.^^ Because the surety is not bound to wait upon the cred-
itor, nor is his right in this respect contingent, upon his demand,
upon the creditor to ascertain his lien, and the latter's refusal to
do so. Neither has the legal ti'tle, but both a general lien, and
therefore their only recourse is in a court of equity, of which either
can take advantage.^^
In some States, however, a delivery bond is given in the alterna-
tive, conditioned for the delivery of the chattels or for the pay-
ment of their value, in case the attaching creditor gains his suit.
Then the alternative condition does not discharge the lien on the
property from the attachment lien; but the custody of the owner
is substituted for that of the officer only.^
But as to third parties, the release of the attached property hav-
ing been procured by giving a delivery bond, does not by reason of
their suretyship entitle the sureties to the possession of the prop-
erty.2*
§ 221. Void Bond. — If there is no authority in law for the
attachment, there can be none for taking the bond. If the attach-
ment itself is illegal and therefore void, so also must be a bond
which takes its place.^" An action cannot be maintained on a bond
given to obtain the liberation of property illegally seized by an
officer, and the sureties on the bond therefore are not liable.^^
21. James v. Kennedy, 10 Heisk. 22. Dechard v. Edwards, 2 Sneed
(Tenn.) 607. (Tenn.) 93.
Property destroyed by fire. The 23. Stevenson v. Palmer, 14 Colo,
condition of a delivery bond being 565, 24 Pac. 5; Loughlin v. Fergu-
to return or deliver the property to son, 6 Dana (Ky.) 111.
the plaintiff, if he recovers judg- 24. Gass v. Williams, 46 Ind. 253;
ment therefor, in as good condition Gray v. Perkins, 12 Smedes & M.
as it was when the action was com- (Miss.) 622.
menced, authorizes the court to 25. Pacific Nat. Bank v. Mixter,
find the value of the property as it 124 U. S. 721, 8 S. Ct. 718, 31 L. Ed.
was at the time of the commence- 567.
ment of the action the destruction 26. Homan v. Brinckerhoof, 1
of the property by fire does not Denio (N. Y.) 184; Cadwell v. Col-
release the sureties. Richards v. gate, 7 Barb. (N. Y.) 253.
Hellen & Son (Iowa_ 1911), 133 N.
W. 393.
§§ 222, 223 Suretyship and Guaranty. 246
§ 222. Damages. — The obligation of a surety in an undertak-
ing in attachment is to pay the obligee thereof all damages sus-
tained by reason of the attachment, if the order be wrongfully ob-
tained " which may include the whole of the property ^* or the
costs and expenses to vacate the attachment including attorneys'
fees.^^ And when the attachment is discharged as wrongful the
right of action to recover against the surety accrues.^" But if the
property attached is not the defendant's, he can recover no dam-
ages,^^ and of course the surety on the bond is not liable to him.
But if the defendant has been injured, then he has his remedy
in an action of tort against the officer, and not against the sureties
on the attachment bond.^^
Upon the question of the liability of the surety the good faith
of the plaintiff is held to be immaterial.^^
§ 223. The Surety is Concluded by the Judgment Against His
Principal. — In the absence of fraud or collusion, a judgment
against the principal on the bond binds the sureties and is deter-
minative for all purposes as to the value of the property taken by
^ delivery bond, and conclusive as to the sureties.^* As to the
27. Hopewell v. McGrew, 50 Neb. The liability of the surety may be
"789, 70 N. W. 397. tried out in the original action in
A breach does not occur until which the attachment issued, where
judgment and failure to satisfy the statute so permits. Deposit
same. Deposit Bank v. Thomason, Bank v. Thomason, 23 Ky. Law Rep.
23 Ky. Law. Rep. 1957, 66 S. W. 604. 1957, 66 S. W. 604.
A plaintiff bringing suit on a sec- Must be notice to surety of pro-
ond bond may be held to estoppel ceeding in order to obtain judgment
to sue on first bond. Hessee v. on bond. Thompson v. Arnett, 23 Ky.
Rowley. 139 Cal. 410, 73 Pac. 156. Law. Rep. 1082, 64 S. W. 735.
28. Files v. Davis (U. S. C. C), 119 31. Tebo v. Betancourt, 73 Miss.
Fed. 1002. 868, 19 So. 833.
29. Tyng v. American Surety Co., 32. Pinson v. Kirsh, 46 Tex. 29.
1"1 N. Y. 166, 66 N. E. 668, affirming 33. Anvil Gold Mining Co. v. Hox-
€9 App. Div. 137, 74 N. Y. Supp. 502. sie, 125 Fed. 724, 60 C. C. A. 492.
Compare Braunstein v. American 34. Jaffray v. Smith, 106 Ala. 112,
Bonding & Trust Co., 84 N. Y. Supp. 17 So. 218; Triest v. Enslen, 106 Ala.
982, as to counsel fees. ISO, 17 So. 356; Charles v. Hoskins,
30. Miller v. Baker, 25 Ky. Law 14 Iowa 471.
Rep. 1858, 79 S. W. 187. See § 65 herein as to effect of
judgment on surety.
247 Sureties on Bond in Legal Proceedings. § 224
sureties, the matter is res adjudicata, and cannot be set aside, ex-
cept for fraud, accident or mistake.^^
§ 224. Appeal Bond — Discharge of Sureties. — The liabiHty of
sureties being contingent, anything legally satisfying the judgment
appealed from as against the principal will discharge the sureties ;
whatever discharges the judgment discharges also the liability of
the obligors upon the bond.^^
But a levy of execution upon real property of sufficient value to
satisfy the judgment does not, like the levy of an execution on per-
sonal property, operate, while the levy is undisposed of, as such a
satisfaction of the judgment as will bar an attempt to enforce its
collection in any other manner."
A surety is released on appeal bond when the principal debtor
is discharged in bankruptcy, and no final judgment is rendered
against the principal ;^^ and the surety is discharged on reversal
of the judgment,^^ provided the reversal is not set aside on further
appeal ; if it is set aside, then the surety's liability is revived, and
he is responsible.^'* When the judgment on appeal is affirmed, the
liability is fixed by the legal import of the conditions in the bond.'*^
35, Fusz V. Trager, 39 La. Ann. tional Surety Co., 144 App. Div. (N.
292; Dickerson v. Heman, 9 Daly Y.) 509, 129 N. Y. Supp. 228.
(N. Y.) 298; Bergen v. Williams, 4 Terms of bond to be strictly con-
McLean, 125. strued and not extended by impli-
36. Illinois.— Stelle v. Lovejoy, 125 cation. Haberer v. Hansen, 148 111.
111. 352, 17 N. E. 711; Cook v. King, At)?. 83.
7 111. App. 549. 37. Gold v. Johnson, 59 111. 63;
Indiana. — Green v. Raftes, 67 Ind. Herrick v. Swartwout, 72 111. 340.
49. 38. Odell v. Woothen, 38 Ga. 224;
Louisiana. — Ellis v. Fisher, 10 La. Martin v. Kilbourn, 12 Heisk
Ann. 479. (Tenn.) 331.
Ohio.— Cass v. Adams, 3 Ohio 223. 39. Rothlinger v. Wonderly, 66 111.
Pennsylvania.— Noble v. Oil Co., 390; Martin v. Hodge (S. C. 1910),
€9 Pa. St. 407. 69 S. C. 225.
See also cases cited in this section 40. Robinson v. Plimpton, 25 N. Y.
post. 484.
A surety on an appeal bond is 41. Arkansas. — Love v. Cahn,
not a ''fiduciary" within the mean- (Ark. 1909), 124 S. W. 259.
ing of the New York Code of Civil Illinois. — Stall v. Hance, 62 111. 52.
Procedure, § 812, permitting such Indiana. — Graeter v. DeWolf, ll^i
a person to apply for a discharge Ind. 1, 13 N. E. 111.
from his undertaking. Allen v. Na-
224
•Suretyship and Guaranty.
248-
Where the bond is conditioned " to satisfy and perform the judg-
ment appealed from in cdse it shall be affirmed " the surety is
liable only for the amount of the same though the recovery is in
excess thereof."^ And generally the liability of the sureties is
measured by that of the principal.''^ And the sureties may avail
themselves of any defense available to their principal." The ex-
tent of recovery generally is the judgment and interest, with costs,
unless the bond provides otherwise/^
On a statutory appeal bond from a judgment overruling a mo-
tion to set aside and vacate an order appointing a receiver, the
surety is only liable for the costs in the case presented by such mo-
tion and not for those of the entire suit, the appeal being only from
the order or judgment upon the motion/® But the sureties are not
Iowa. — Noyes v. Granger, 51 Iowa
227, 1 N. W. 519.
Michigan.— Kelly v. Gaukler, 164
Mich. 519, 129 N. W. 703, 17 Det. L.
N. 112.
Missouri. — Campbell v. Harring-
ton, 93 Mo. App. 315.
Montana. — Sullivan v. Fried, 42
Mont. 335, 112 Pac. 535.
Final jndgment fixes the liability
of the surety. Barela v. Tootle, 29
Colo. 55, 66 Pac. 899.
A bond conditioned to pay a cer-
tain sum limits recovery to such
sum. Ehrlich v. Ringler, 65 Misc.
R. (N. Y.) 15, 119 N. Y. Supp. 344.
Bond to pay a " valid " judgment.
Surety held liable where judgment
affirmed. Cook v. Spence (Mo. App.
1909), 122 S. W. 340.
Where a bond is conditioned that
plaintiff in error will " abide the
judgment if the same shall be af-
firmed and pay the costs' " there is
a breach in case of nonpayment of
the judgment, when affirmed. Har-
ris V. Kansas Elevator Co., 66 Kan.
372, 71 Pac. 804.
42, Barela v. Toole, 29 Colo. 55,
66 Pac. 899.
43. Sharon v. Sharon, 84 Cal. 433,
23 Pac. 1102; Parnell v. Hancock,
48 Cal. 452.
Nonpayment of damages for
which a judgment is affirmed is a
breach of an appeal bond. Sim-
mons V. Sharpe (Ala. 1911), 56 So.
849.
44. Sharon v. Sharon, 84 Cal. 433,
23 Pac. 1102.
An insufficient statutory appeal
bond may be sued on as a common
law bond. Simmons v. Sharpe
(Ala. 1911), 56 So. 849; Examine
Summit v. Coletta (N. J. L. 1911),
78 Atl. 1047.
45. Stelle v. Lovejoy, 125 111. 352,
17 N. E. 711; Campbell v. Harring-
ton, 93 Mo. App. 315.
In case of an appeal from a fore-
closure decree where a bond is
given conditioned to pay interest,
the surety is liable where a defic-
iency decree for interest is entered.
Monson v. Meyer, 195 111. 142, 62 N.
E. 827, affirming 93 111. App. 94.
46. American Surety Co. of New
York V. Koen, 49 Tex. Civ. App. 98,
107, S. W. 938.
249
Sureties on Bond in Legal Proceedings.
§ 225
liable for attorney fees ;*^ nor for rents and profits pending appeal
affecting real estate, unless the statute ^* or the bond so provides/^
A sufficient tender of performance of the judgment by either the
principal or sureties on the appeal bond discharges the sureties,
whether accepted or not.^** But though a judge may have no right
to require a bond conditoned to pay for delay occasioned by a writ
of error yet where it contains such a condition it is held that the
surety will be liable therefor.^^ The general rule also applies that
the liability of a surety on an appeal bond is not to be extended
beyond the terms of the bond.^^
§ 225. Appeal to a Special Court. — A surety is discharged on
the appeal bond, if the judgment is affirmed by a court other than
that mentioned in the bond."^ Thus, where the bond specifies a par-
ticular court, and when it comes before that court a change of
venue is taken, the sureties are discharged.^^ But if the bond is
conditioned generally for the payment of the judgment if affirmed
on appeal, then they are liable to whatever court the appeal i*
taken, even if there are successive appeals.^^
47. Noll V. Smith, 68 Ind. 168.
On a bond superseding an order
to sell real estate may be liability
for rents and profits while pur-
chaser is kept out of possession.
Brown v. Northwestern Mutual Life
Ins. Co., 119 Fed. 148, 55 C. C. A.
654.
See also German Savings & Loan
Soc. V. Kern, 42 Oreg. 532, 70 Pac.
709.
48. Stultz V. Zahn, 117 Ind. 277,
20 N. E. 154; 0pp. v. Ward, 125 Ind.
241, 24 N. E. 974.
49. Carmack v. Drew, 32 Wash.
236, 73 Pac. 377.
50. California. — Sharp v. Miller,
57 Cal. 415.
Indiana. — Spingeon v. Smith, 114
Ind. 453, 17 N. E. 105.
STassachnsetts. — Hampshire Bank
T. Pillings, 17 Pick. 87.
Michigan. — Seans v. Van Dusen,
25 Mich. 351.
Vermont. — Joslyn v. Eastman, 46
Vt. 258.
As to tender of payment as dis-
charge of surety see § 139 herein.
51. Waycross Air Line Co. v. Of-
ferman & W. R. Co., 114 Ga. 727, 40
S. E. 728.
52. Griswold v. Hazels, 62 Neb.
888, 87 N. W. 1047.
53. Sharp v. Bedell, 10 111. 88;
Hinckley v. Kreitz, 58 N. Y. 583;
Smith V. Huesman, 30 Ohio St. 662.
But see Barela v. Tootle, 29 Colo.
55, 66 Pac. 899.
Though to court to which no law-
ful appeal lies surety may be liable.
McVey v. Peddle, 69 Neb. 525, 96 N.
W. 166.
54. Sharp v. Bedell, 10 111. 88.
55. Robinson v. Plimpton, 25 N. Y.
484; Smith t. Crouse, 24 Barb. (N.
Y.) 433.
§§ 226, 227 iSuRETYSHip and Guaranty. 250
§ 226. Change of Issue and Parties. — Sureties on appeal are
discharged by any material change in the issue. ^^ And so if the
parties are changed the sureties are discharged," as where the
name of one of the joint plaintiffs on appeal is stricken out of the
writ of error by order of the court.^^ But if the appeal is affirmed
as to one of the defendants, and not as to the other, the sureties
are still liable.^* Nor is the surety discharged by the death of the
principal and substitution of the principal's administrator.*"
When an appeal bond is given by several appellants, the undertak-
ing is several as to each of the principals, and the sureties are
liable accordingly, although the judgment is rendered against some,
and not all, of their principals on appeal.*^ Unless provided other-
wise by statute, the contract of two or more sureties on the same
appeal is joint only, and not joint and several or several,^^ so the
discharge of one discharges all.*^
And so where the name of one of the joint plaintiffs in error is
stricken out of the writ of error by order of the court the sureties
are discharged."
§ 227. Enlargement of Claim. — The increase of the claim with-
out the sureties' consent destroys their liability where the bond is
for a definite amount, and the enlargement exceeds this amount.®^
But if the bond is to secure any judgment which may be rendered
without regard to a specified amount, an increase in the demand
in the appellate court will not release the sureties." Some courts
56. Langley v. Adams, 40 Me. 125; Warner v. Cameron, 64 Mich. 185,
Evers v. Sager, 28 Mich. 47; Post v. 31 N. W. 42; McFarlane v. Howell,
Shafer, 63 Mich. 85, 29 N. W. 519; 91 Tex. 218, 42 S. W. 853.
Sage V. Strong, 40 Wis. 575. 62. Wood v. Fisk, 63 N. Y. 249;
57. Thomas v. Cole, 10 Heisk. Pickersgill v. Lahens, 15 Wall. (U.
(Tenn.) 4J.1. S.) 140, 21 L. Ed. 119.
58. Tarner v. Nance. 5 Ala. 718. 63. Gross v. Bouton, 9 Daly (N.
59. Ives V. Hulce, 17 111. App. 135; Y.) 25.
Hood V. Mathis, 21 Nev. 308; Alber 65. Tarner v. Hance, 5 Ala. 718.
V. Froehlich, 39 Ohio St. 245; Mc- 66. Willis v. Crooker, 1 Pick.
Farlane v. Howell, 91 Tex. 218, 42 (Mass.) 204; Sage v. Strong, 40 Wis.
S. W. 853. 575.
60. Bell V. Walker, 54 Neb. 222, 74 67. Masser v. Strickland, 17 S. &
N. W. 617; Piercy v. Piercy, 1 Ired. R. (Pa.) 354; Hare v. Marsh, 61 Wis.
Eq. (N. C.) 214. 435, 21 N. W. 267; Dressier v. Davis.
61. Ives V. Hulce, 17 111. App. 35; 12 Wis. 58.
251 iSuRETiES ON Bond in Legal Proceedings. §§ 2i28, 229
hold that there is no release of the surety by reason of an increase
of liability by a subsequent legislative enactment. ^^
§ 228. Agreement of Litigants. — Sureties are discharged by
any agreement of the litigants by which the obligation of the
judgment appealed from is varied, or the time of payment is sus-
pended.^^ Thus, where the parties agreed that the judgment might
be paid in installments, after the appeal bond was signed, and the
debtor failed to pay as agreed, the sureties are discharged.^" And
80 where the litigants consent to an affirmance of the judgment on
appeal, the sureties are discharged f^ and so if, by consent of the
parties, judgment is taken against a portion only of the appel-
lants f^ and so where the creditor suspends execution on the judg-
ment without consent of sureties.^^
Where the undertaking of a surety is to pay any judgment ren-
dered against his principal, he is liable, notwithstanding another
maker of the note sued on was made a party in the appellate court
and judgment rendered against both makers.^* And a non-suit may
be set aside by agreement on appeal without discharging the
fiureties.^^
§ 229. Successive Appeal Bonds are Cumulative. — The
sureties on an appeal bond to an intermediate court are not dis-
charged by a second appeal with a new bond to a higher court.'*
Thus, a surety on an appeal bond to an appellate court is not re-
leased by the execution and approval of a bond with a new surety
68. White v. Prigmon, 29 Ark. 208; 73. Wingate v. Wilson, 53 Ind. ?:.
State V. Swinney, 60 Miss. 39; Hor- 74. Helt v. Whittier, 31 Ohio St.
nrr v. Lyman, 4 Keyes (N. Y.) 237. 475, distinguishing Lang v. Pike, 27
Compare Davis v. People, 1 Gil. Ohio St. 498.
(111.) 409. See also Hood v. Mathis, 21 Mo.
69. Comegys v. Cox, 1 Stew. (Ala.) 3C8; Johnson v. Reed, 47 Neb. 322,
262; Gardner v. Watson. 13 111. 347; 66 N. W. 405; Potter v. Van Vranken,
Wingate v. Wilson, 53 Ind. 78. 36 N. Y. 629.
70. Leonard v. Gibson, 6 111. App. 75. Bailey v. Rosenthal, 56 Mo.
503. 385.
71. Johnson v. Flint, 34 Ala. 673. 76. Chester v. Broderick, 131 N.
Compare Chase v. Beraud, 29 Cal. N. 549, 30 N. E. 507.
138; Ammons v. Whitehead, 31 Miss. As to liability to contribute on
99- successive bonds see § 209 herein.
72. Shimer v. Hightshue, 7 Blackf.
(Ind.) 238.
§§ 230, 231 Suretyship and Guaranty. 252
for further appeal of the cause to the higher court, the bonds be-
ing in such case cumulative securities."
Another question comes up under this head, as to the relative
rights of the two sets of sureties. As between different sets of
sureties who undertake to secure the same debt, although in dif-
ferent stages of legal proceedings, the primary liability rests upon
the later set, and if they be discharged by the creditor, the first
sureties will thereby also be discharged,^^ because it deprives them
of a remedy over to which they would otherwise have been en-
titled.^^
§ 230. Indemnity Bonds. — If the indemnity bond provides
to save the officer harmless from any damages by a levy and sale
of the property, there is no breach of condition until the officer has
suffered actual damages by the payment of a claim against him.^
If the condition of the bond imports an undertaking to save the
officer harmless from any liability, the officer has the right of ac-
tion upon the bond as soon as a liability is incurred, without the
necessity of showing any payment.^*
§ 231. Liability on Indemnity Bonds. — It is the general rule,
that if a judgment creditor gives a bond of indemnity to the officer
to induce him to levy upon certain property and sell it, in the
event of such property not being subject to execution, he becomes
a joint trespasser with the officer and liable for the tort f^ and so
are the sureties upon such bond in trespass,^ because all persons
who direct or request another to do a trespass are liable as co-tres-
passers, and a bond of indemnity is virtually a request to trespass
when the seizing of the property is unlawful.^*
However, in some iStates it is held that where the surety does
77. Becker v. People, 164 111. 267, 458; Herring v. Hoppock, 15 N. Y.
45 N. E. 500. 409; Lovejoy v. Murray, 3 Wall. (U.
78. Culliford v. Walser, 158 N. Y. S.) 1, 18 L. Ed. 129.
65, 52 N. E. 648. 83. Screws v. Watson, 48 Ala. 628;
79. Hinckley v. Kreitz, 58 N. Y. Wetzell v. Waters, 18 Mo. 396; Ford
583. V. Williams, 13 N. Y. 584; Herring
80. Gilbert v. Wiman, 1 N. Y. 550. v. Hoppock, 15 N. Y. 409.
81. White V. French, 15 Gray 84. Herring v. Hoppock, 15 N. Y.
(Mass.) 339. 409.
82. Knight v. Nelson, 117 Mass.
^53
Sureties on Bond in Legal Proceedings.
2. '32
not actually participate in the unlawful proceeding he cannot be
held liable for the officer's tort.*^ The surety on such a bond is
bound only in accordance with the terms of his obligation and his
liability cannot be extended beyond them by implication or con-
struction.*®
§ 232. Injunction Bonds — Liability of Surety. — The liability
of a surety on an injunction bond must be strictly construed, and
he cannot be held liable beyond the precise terms of his undertak-
ing.*^ iSo he is not liable for the unlawful acts of his principal
which are done, save the damages which naturally result from the
legal effect of the writ of injunction.** The surety will be held
only liable to the precise terms of his bond. Thus, where a judg-
85. McDonald v. Felt, 49 Cal. 354;
Offterdinger v. Ford, 92 Va. 636, 24
S. E. 246 ; Dawson v. Baum, 3 Wash.
Ter. 464.
86. American Surety Co. v. Boyle,
65 Ohio St. 486, 63 N. E. 73.
87. Georgia,— Webb v. Pope, 118
Ga. 627, 45 S. E. 478.
Illinois. — Ovington v. Smith, 78
111. 250.
Missouri. — Lewis v. Leathey, 14
Mo. App. 564.
New York. — American Exch. Nat.
Bank v. Goubert, 67 Misc. R. 602,
124 N. Y. Supp. 817, affd. 130 N. Y.
Supp. 1103.
Ohio.— Hall V. Williamson, 9
Ohio St. 17.
West Virginia. — Ballard v. Logan
(1911), 76 S. E. 558.
As to extent of surety's contract
generally see §§ 66 et seq.
Snch damages as may be
** awarded." Under the laws of the
United States as expounded by its
courts the condition of a bond for
payment of such damages as may
te awarded by reason of the Issu-
ance or continuance of an injunc-
tion is not broken so as to make the
surety liable until the amount of
the damages is assessed and deter-
mined and the principal obligor has
refused to pay the amount awarded.
Umbreit v. American Bonding Co.,
144 Wis. 611, 129 N. W. 789.
88. Cummings v. Mugge, 94 111.
186; Albers Commission Co. v.
Spence (Mo. 1911), 139 S. W. 321.
Injunction against signing con-
tract for school building. Where a
board of school directors had ac-
cepted a bid for the erection of a
school building and the contract
with plans and specifications had
been prepared and signed by the
contractor, but before the officers
of the board had signed it an in-
junction was issued restraining
further action, and subsequently on
the injunction being dissolved, the
contract was signed and the build-
ing erected, the complainant at
whose instance the injunction was
issued was held liable on his injunc-
tion bond for the loss sustained by
the contractor from the delay re-
sulting from the injunction. Nether
Township School District v. Mercur,
46 Pa. Super. Ct. 470.
§ 233 Suretyship and Guar^vnty. 254
ment was stated in the bond to have been recovered at a certain
term of court, when in fact it was at another term in the same
year, the surety will be discharged.^' He cannot be held beyond
the terms of his contract, and if these terms are varied without his
consent he will be discharged.^'' But if the appellant obtains an in-
junction restraining the collection of the judgment affirmed on ap-
peal and without the consent of the sureties, this does not discharge
them.'*
§ 233. When Suit May Be Brought for Breach. — A surety on
an injunction bond is entitled to have the case against his principal
tried according to the form of law, and a final decree entered
against him in court. Until there is such a final decree or deter-
mination of the equity of the suit, the surety is not liable.'^ And
there must be a decision upon the merits. So a surety is discharged
upon an injunction bond, by an agreement entered into, without
his consent, by the parties litigant, to have the equity suit tried
and determined in an irregular way, after the term of the court
had ended.'^ If there be a corrupt arrangement between the cred-
itor and princpal by which the injunction is dismissed, the surety
is discharged f* but in the absence of fraud, the dismissal of the in-
junction by agreement will not discharge the surety.'^
If an agreement is made between the parties, but the surety's
liability is not changed, he is not discharged. Thus, an agreement
of the parties which the court carries out, which is in effect a par-
tial dissolution, the surety's liability not being increased, does not
release him.'^ So if an order by stipulation modifying an injunc-
89. Morgan v. Blackiston, 5 Har. New York. — Loomis v. Brown, 16
& J. (Md.) 61. Barb. 325.
90. Hall V. Williamson, 9 Ohio St. Pennsylvania. — Large v. Steer,
17. 121 Pa. St. 30, 15 Atl. 490.
91. Hodges V. Gervin, 6 Ala. 478. Securities are entitled to their
92. Illinois. — Mix v. Vail, 86 111. day in court. Terry v. Robbins (U,
40. S. C. C), 122 Fed. 725.
Iowa. — Monroe v. Gilford, 35 Iowa 93. Baker v. Frellson, 32 La. Ann.
646. 322.
Louisiana.— Baker v. Frellson, 32 94. Boynton v. Robb, 22 111. 525.
La. Ann. 822. 95. Boynton v. Phelps, 52 111. 210.
Missouri. — Gray v. Kerr, 33 Mo. 96. Brackenbush v. Dorsett, 138.
159. 111. 167, 27 N. E. 934.
]Vebraska. — Bemis v. Gannett, 8
Neb. 236.
255 iSuRETiEs ON Bond in Legal Pkoceedings. §§ 234, 235a
tion, does not change the liability of the principal or surety, the
latter is not released."
§ 234. Liability, Joint and Several. — The undertaking of a
surety in an injunction bond, where there are several complainants,
is in law for the principals, several as well as joint. The surety is
bound that each and all of his principals shall perform and fulfill
whatever decree may be rendered in the cause against all or either
of them. Hence, the abatement of a suit in equity as to one of sev-
eral joint plaintiffs by the neglect of both parties to revive ; or the
discharge of one upon some ground applicable to him alone, can-
not affect the liability of the surety for the surviving party or
parties against whom the final decree may have been properly ren-
dered.^^
§ 235. What Law Governs. — An injunction bond must be
construed with reference to the law in force when it was executed.
The liability of the principal or surety cannot be changed by the
passage of a statute which takes effect after the execution of the
bond. Thus, a statute passed before execution of a contract or in-
junction bond, but which does not take effect until afterwards, is,,
as to such contract, inapplicable, and can have no effect on the con-
tract or bond.^* The measure of liability of sureties is fixed by
the terms of the instrument they sign, and such undertaking can-
not be enlarged or varied by judicial construction. Their under-
taking will be construed as the words used are ordinarily under-
stood.^
§ 235a. Liability and Damages. — As stated in the preceding
section the liability of the sureties is fixed by the terms of the
bond. The damages recoverable are limited by the terms and pen-
alty of the bond.^ So where a bond is conditioned to secure pay-
97. Keith v. Henkleman, 173 111. court is governed by the principles
137, 50 N. E. 692. adopted and applied by the federal
98. Kelly v. Gordon, 3 Head courts, not by the State law. Um-
(Tenn.) 683. breit v. American Bonding Co., 144
99. Mix V. Vail, 86 111. 40. Wis. 611, 129 N. Y. 789.
Bond in a federal court. The lia- l. Mix. v. Singleton, 86 111. 194.
bility of a surety on an injunction 2. Terry v. Robbins (U. S. C. C.>
bond given in a suit in a federal 122 Fed. 725.
■§§ 236, 237 Suretyship and Guaranty. 256
ment of "damages sustained bj the defendant " damages to one
not a defendant as a result of the wrongful issuance of an injunc-
tion cannot be recovered.^
Counsel fees and expenses incurred in procuring the dissolution
of an injunction are in some cases recoverable.* .So a bond to pay-
such sum " as may for any cause be recovered " v?ill permit a re-
covery of costs.^ And it is held to be no defense to an action
against the surety that there was want of jurisdiction to issue the
injunction,® or that it was issued against the wrong person.''
5; 236, Dissolution by Series of Orders. — An injunction may
be dissolved by a series of orders, one dissolving as to one part one
day, and afterwards another, by consent of the parties; and so
long as the liability of the surety is not made diiferent or more
burdensome thereby than it would have been by a single dissolution,
embracing the entire subject-matter of the injunction, the surety
will not be discharged.*
§ 237. Concluded by Judgment Against Principal. — A surety
on an injunction bond cannot go behind the decree of court to raise
questions of illegality as to an agreement on which it is founded.*
And the decree of court cannot be set aside, on an injunction bond,
8. Hays v. Fidelity & Deposit Co., ney's fees and expenses. Edwards
112 Fed. 872, 50 C. C. A. 569. v. Bucker, 66 Kan. 241, 71 Pac. 587.
4. Bush V. Kirkbride, 131 Ala. 40";, 5. John Church Co. v. Dorsey, 38
30 So. 780; Nelson v. City of Albert Misc. R. (N. Y.) 542, 77 N. Y. Supp.
Lea, 87 Minn. 285, 91 N. W. 1113; 1065.
Jameson v. Bartlett, 63 Neb. 638, 88 6. Boise City v. Randall, 8 Ida.
N. W. 860. 119, 66 Pac. 938.
Attorney's fees are limited to 7. Boise City v. Randall, 8 Ida.
those charged on motion to dissolve. 119, 66 Pac. 938.
Church V. Baker, 18 Colo. App. 369, 8. Brackebush v. Dorsett, 138 111.
71 Pac. 888. 167, 27 N. E. 934.
Attorney's fees on unsuccessful 9. Oelrichs v. Spain, 15 Wall. (U.
motion before final trial are not re- S.) 211, 21 L. Ed. 43; McAllister v.
coverable. Cunningham v. Finch, Clark, 36 111. 236; Citizens' Trust &
€3 Neb. 189, 88 N. W. 168. Guaranty Co. v. Ohio Valley Tie Co.
Where suit dismissed after return (Ky. 1910), 128 S. W. 317.
of property cannot recover attor- As to effect cf judgment on surety
see § 65 herein.
257
SuEETiES ON Bond in Legal Proceedings. § 238
by the surety, because the judgment against the principal, in the
absence of fraud or mistake, is conclusive as to him.^**
§ 238. Replevin Bond, — Sureties on a replevin bond are bound
only to the full value of the property not forthcoming on demand. ^^
They are represented in a replevin suit by the plaintiff who has
given the bond, and are identified with him in interest, so as to be
concluded by the proceedings in the suit.^^ The surety cannot go
10. McAllister v. Clark, 86 111. 236.
See, also, Richardson v. People's
Nat. Bank, 57 Ohio St. 299, 48 N. E.
1100.
11. Miles V. Davis, 36 Tex. 690.
Where property is set aside as
exempt after it has been replevied
there is no breach of the bond for
failure to produce the property as
stipulated. Jones v. Spilters, 9 Ga.
App. 473, 71 S. E. 777.
Liability to pay money judgment
conditionaL Where by statute it is
required that a judgment shall be
in the alternative " for its posses-
sion or for the recovery of the pos-
session, or the value thereof in case
a delivery cannot be had and for
damages for the taking and deten-
tion thereof," the obligation of the
sureties for the payment " of such
sum as may, for any cause, be re-
covered against the defendants " is
not absolute, but conditional
merely. Larson v. Hanson, 21 N. D.
411, 131 N. W. 229.
Measure of damages ; " fair
market value." The plaintiff in an
action on a replevin bond is entitled
to the fair market value of the
property in that order and condi-
tion as of the time when it should
have been delivered to him, that Is
on the date of the final judgment
in the replevin suit. Maguire v.
Pan American Amusement Co., 205
17 .
Mass. 64, 73, 91 N. E. 135, 138, 137
Am. St. Rep. 422 Per Sheldon, J.,
citing Swift t. Barnes, 16 Pick.
(Mass.) 194; Leighton v. Brown, 98
Mass. 515; Stevens v. Tinte, 104
Mass. 328. The fair market value
is said to be "at least the highest
price which a normal purchaser
not under compulsion will pay at
the time and place in question in
order to get the thing." Maguire y.
Pan-American Amusement Co.
(Mass. 1912), 97 N. E. 142, quoting
Holmes, C. J., in Bradley v. Hooker,
175 Mass. 142, 55 N. E. 848.
Value of property as damages.
See Pettit v. Allen, 64 App. Div. (N.
Y.) 579, 72 N. Y. Supp. 287; Talcott
v. Rose (Tex. Civ. App.), 64 S. W.
1009.
If value not found in verdict can-
not enter judgment against sureties.
Talcott v. Rose (Tex. Civ. App.), 64
S. W. 1009.
Costs may be recovered though
not paid. Campbell v. Lane, 2 Neb.
(Unoff.) 63, 95 N. W. 1043.
Attorney's fees not recoverable,
Gilbert v. American Surety Co., 121
Fed. 499, 57 C. C. A. 619, 61 L. R. A.
253.
Replevin bond held not a valid
statutory bond and not bindinr,-.
Horton v. Stone, 32 R. I. 499, 80 Atl
1.
12. Washington Ice Co. v. Web-
ster, 125 U. S. 426, 31 L. Ed. 799.
§ 239 Suretyship and Guaranty. 258
behind the judgment on a replevin bond against the principal to
question its validity except upon the ground of fraud or mistake/*
§ 239. Discharge of Surety. — Where a party begins a replevin
suit and gives a bond conditioned to prosecute the action to final
judgment, he commits a breach of his bond by discontinuing the
suit before final judgment, though the damages may be nominal,
and, hence, the sureties on such bond are not discharged by his dis-
missal of the suit.^* And where the replevin bond is insufficient the
court may order another bond, and the latter will have no effect
on the liability of the sureties on the first bond, so as to discharge
them.^^ And if the additional bond is not executed and filed ac-
cording to the order of the court, the case may be dismissed.^®
If the damages awarded are less than the amount named in the
first bond, judgment may be rendered against the sureties on the
first bond alone.^^ The new bond is not substituted for the old, but
is additional. Where as a condition of opening a judgment in
replevin against a defendant by default he gives a bond conditioned
for the payment of any sum of money recovered against him in
that action, neither the fact that upon a subsequent trial the court
over the objection of the sureties allowed the complaint to be
amended so as to state a cause of action in conversion, nor the fact
that the judgment in the action wrongly awarded a sum of money
13* Colorado.— Cox v. Sargent, 10 1100, affirmed 45 App. Div. 554, 61
Colo. App. 1, 50 Pac. 201. N. Y. Supp. 326.
Illinois. — Schott v. Youree, 142 111. Ohio. — Richardson v. People's Nat.
233, 31 N. E. 591. Bank, 57 Ohio St. 299, 48 N. E. 1100.
lodiana. — McFadden v. Fritz, 110 Pennsylvania. — Cox. v. Hartranft,
Ind. 1, 10 N. E. 120. 154 Pa. St. 457, 26 All. 304.
Kansas. — First State Bank v. Sonth Carolina. — Parish v. Smith,
Martin, 81 Kan. 794, 106 Pac. 1056; 66 S. C. 424, 45 S. E. 16.
Kennedy v. Brown, 21 Kan. 171; Texas, — McCoslin v. David, 22 Tex.
O'Loughlin v. Carr, 9 Kan. App. 818, Civ. App. 53, 54 S. W. 404.
60 Pac. 478. 14. Alderman v. Roesel, 52 S. C.
Micliigran. — Jennison v. Haine, 29 162.
Mich. 207. 15, Smith v. Whitten, 117 N. C.
Nebraska.— Thomas v. Markman, 389, 23 S. E. 320.
43 Neb. 623, 62 N. W 206; Smith v. 16. Smith v. Ruby, 6 Heisk.
Bowers, 2 Neb. (Unoff.) 611, 89 N. (Tenn.) 546.
W. 596. 17. Smith v. Whitten, 117 N. C. 389,
New York.- Christiansen v. Mend- 23 S. E. 320.
ham, 28 Misc. R. 765, 59 N. Y. Supp.
259 Sureties on Bond in Legal Proceedings. §§ 240, 241
instead of the usual relief in a replevin action, will relieve the
sureties from liability for the amount of the money judgment re-
covered.^^
§ 240. New Parties — Substitution. — If a new party be substi-
tuted for the defendant, it discharges the surety.^^ And so if one
of the defendants is discharged during the suit the surety on the
replevin bond is discharged.^^ But it is held that a court may sub-
stitute the owner of the property in an action of replevin, in the
place of his agent, against whom the suit was brought, and that
such substitution does not discharge the sureties on the bond, but
they continue bound for the new party, equally as if he had been
the original and only defendant.^^
§ 241. Varying the Terms of the Bond. — A surety is dis-
charged if the replevin bond is varied without his consent. Thus,
where the parties agree to refer the case to arbitration, without
the surety's consent, and the case is so settled, the surety is dis-
charged.^^ The surety does not undertake to pay the damages
which may result, only as determined by a court of competent juris-
diction ; if the controversy is referred to arbitrators, this discharges
the sureties.^^
18. Popper V. Seufert, 147 App. 20. Harris v. Taylor, 3 Sneed
Div. (N. Y.) 371, 132 N. Y. Supp. 209. (Tenn.) 536.
See Bierce v. Waterhouse, 219 U. See, also, Wiggins v. Wells, 2
S. 320, 31 Sup. Ct. 241, 55 L. Ed. Sneed (Tenn. )154.
237. 21, Hanna v. Petroleum Co., 23
19. Smith V. Ruby, 6 Heisk. Ohio St. 622.
(Tenn.) 546. 22. Archer v. Hale, 4 Bing. 464.
Unless the statute so permits. 23. Perkins v. Rudolph, 36 111.
Becovitz V. Sapperstein (Ind. App. 306; Moore v. Bowmaker, 3 Price
1910), 92 N. E. 551. 214.
ISUBETYSHIP AND GUAEANTY. 260
CHAPTER X.
BONDS OF PERSONS ACTING UNDER JUDICIAL SANCTION.
Section 242. Executors and Administrators.
243. Estoppel of Judgment Against Principal.
244. Income of Real Estate.
245. Sale of Real Estate Beyond Jurisdiction of Court.
246. Surety is Liable Only for Principal's Official Acts.
247. Giving New or Additional Bond.
248. Liability of Discharged Surety.
249. Sureties on Joint Bonds.
250. Allowances to Intestate's Widow and Family.
251. Executor or Administrator Debtor to the Estate.
252. Common-Law Rule as to Executor Being Debtor to the
Estate.
253. General Liability of Sureties.
254. Same Person Administrator of One Estate and Executor of
Another.
255. Executor or Administrator Acting in Other Fiduciary
Capacity.
256. Failure to Return Inventory or to Account.
257. Release of Sureties.
258. When Right of Action Arises Against Sureties.
259. Sureties of Guardian — General Liability.
259a. Bond not Complying with Statute.
260. Giving Additional Security.
261. Guardian Selling Real Estate.
262. Discharge of Surety.
263. Termination of Surety's Liability.
264. When Action upon the Bond Accrues.
265. Estoppel by Judgment Against Principal.
266. Estoppel by Recitals in the Bond.
267. Joint Guardians.
268. Joint Bond Instead of Several.
269. Extent of Surety's Liability.
270. Revival of Liability by Surety.
271. Receiver's Bond — Liability of Sureties.
272. Right of Action Against Surety on Receiver's Bond.
273. When Surety is Concluded by Decree of Court.
274. Funds Coming Into the Hands of the Receiver.
275. Giving a New Bond.
276. Extent of Surety's Liability.
261 Bonds Under Judicial Sanction. §§ 242, 243
Section 277. Liability of Surety on Assignee's Bond.
278. Estoppel of Surety.
279. Giving New Bond.
280. Default of Assignee.
281. Discharge of Surety.
§ 242. Executors and Administrators. — The general rule is
that a default of the executor or administrator must be established
in proper proceedings against him before the sureties can be prose-
cuted upon their bond for the default of their principal/ But
whenever the principal absconds, conceals himself, or resides witb-
out the jurisdiction of the court, then suit will lie on the bond
against the sureties without recourse, in the first place, to the prin-
cipal. Such cases form an exception to the general rule which is
established for the protection of the surties where it can be done
consistently with the preservation of the rights of legatees and cred-
itors.^ And so where the executor or administrator is dead, the
sureties may be sued at once, because a demand upon the prin-
cipal has become impossible.^ However, in some jurisdictions it
is not necessary to a right of recovery that a default has been estab-
lished against the principal.* If the bond has no obligee, it is void.^
The liability of the surety cannot extend beyond the terms of the
bond.^
§ 243. Estoppel by Judgment Against Principal. — In the ab-
sence of fraud or collusion, the sureties are concluded by a decree
1. Alexander v. Bryan, 110 U. S. Tucker v. People, 87 111. 76; State
414, 4 Sup. Ct. 107, 28 L. Ed. 195; v. Johnson, 7 Blackf. (Ind.) 520;
State V. Pare, 28 Mo. App. 512; Hood State v. Shelby, 75 Mo. 482.
V. Hood, 85 N'. Y. 561; Haight v. Bris- 5. Tidball v. Young, 58 Neb. 261,
bin, 100 N. Y. 219, 3 N. E. 74; Com- 78 N. W. 507.
monwealth v. Stub, 11 Pa. St. 150. 6. People to Use of Sterling v.
2. Giles V. Brown, 60 Ga. 658; Huffman, 182 111. 390, 55 N. E. 981;
Dunne v. American Surety Co., 34 Murphy v. Dorsey, 23 Ohio Cir. Ct.
Misc. (N. Y.) 584, 70 N. Y. Supp. 391; R. 157.
Commonwealth v. Wenrick, 8 Watts. An executor's bond creates a con-
(Pa.) 159. tinning liability, each violation of
3. People V. Admire, 39 111. 251. which is a breach and furnishes a
See, also, Bischoff v. Engel, 10 cause of action. Tucker v. Stewart,
App. Div. (N. Y.) 240, 41 N. Y. Supp. 147 Iowa 294, 304, 126 N. W. 183,
815. citing Fuller v. Cushman, 170 Mass.
4. Morgan v. West, 43 Ga. 275; 286, 49 N. E. 631.
§ 243
.Suretyship and Guaranty.
262
of the proper court as to their principal's liability, even though
they are not parties to such suit.^ However, if the principal is not
properly before the court, and the court has no jurisdiction, then
the surety is not concluded by such decree.*
In some jurisdictions it is held that a judgment against an ad-
ministrator or executor is only prima facie evidence, and not con-
clusive upon the surety.^ Thus, a surety may plead and prove
after judgment against his principal, the deficiency of assets in the
hands of his principal, liable to the payment of the debt.^° And so
sureties on a bond are not liable to a creditor of the estate for the
amount of judgment obtained by him in an action against the prin-
cipal, commenced after the claim was barred by the statute of limi-
tations, to which action the principal appeared and pleaded the
statute, and then let the suit go by default.^^ And so if the ad-
ministrator fails to plead the statute of limitations, in an action
against the surety, he may set it up as a defense.^^
7. United States. — Stovall v.
Banks, 10 Wall. 583, 19 L. Ed. 1036.
Alabama. — Martin v. Tally, 72 Ala.
23.
California. — Irwin v. Backus, 25
Cal. 214.
Illinois. — Nevitt v. Woodburn, 160
111. 203, 43 N. E. 285; Housh v.
People, 66 111. 178.
Kansas. — American Surety Co. v.
Pratt, 67 Kan. 294, 72 Pac. 775.
Kentucky. — Frazer v. Frazer, 25
Ky. Law Rep. 473, 76 S. W. 13.
Maine. — Burgess v. Young, 97 Me.
386, 54 Atl. 910.
Massachusetts. — McKim v. Haley,
173 Mass. 112, 54 N. E. 257; Heard v.
Lodge, 20 Pick. 53.
New Hampshire. — Judge v. SuUo-
way, 68 N. H. 511, 44 Atl. 720.
New York. — Harrison v. Clark, 87
N. Y. 572; Casoni v. Jerome, 58 N. Y.
314.
Ohio.— O'Conner v. State, 18 Ohio
225.
Oklahoma. — Greer v. McNeal, 11
Okla. 519, 526, 69 Pac. 891, 893.
Pennsylyania. — Commonwealth v.
Ruhl, 199 Pa. St. 40, 48 Atl. 905; In
re Young's Estate, 199 Pa. St. 35, 48
Atl. 692.
Wisconsin. — Barney v. Babcock's
Estate, 115 Wis. 409, 91 N. W. 982;
Meyer v. Borth, 97 Wis. 352, 72 N.
W. 748; Holden v. Curry, 85 Wis.
504, 55 N. W. 965.
For a further consideration of
these cases see § 65 herein.
8. State V. Drake, 52 Ark. 350, 12 S.
W. 706; Robinson v. Hodge, 117
Mass. 222; Loop v. Northup, 59 Hun
(N. Y.) 75, 13 N. Y. Supp. 144.
9. Bird v. Mitchell, 101 Ga. 46, 28
S. E. 674; Bennett v. Graham, 71 Ga.
211; Jenkins v. State, 76 Md. 255, 23
Atl. 608, 790; Barksdale v. Butler, 6
Lea (Tenn.) 450.
10. Gibson v. Robinson, 91 Ga. 756.
11. Robinson v. Hodge, 117 Mass.
222.
12. Dawes v. Shed, 15 Mass. 6.
See, also, Thayer v. Hollis, 3 Met.
(Mass.) 369.
263
Bonds Under Judicial iSanction.
§ 244
§ 244. Income of Real Estate. — A surety on an administra-
tor's or executor's bond is liable for conversion, waste or appropria-
tion of property of the decedent's estate only of such property as
comes into his hands subject to administration under the bond.^'
When sureties sign the administration bond, they contract only to
indemnify the persons' interest in the personal estate for which
such bond is given, and will not be liable on it for the proceeds
of real estate sold by such principal ; they are not liable for the in-
come of the decedent's real estate.^* Where the executor has au-
thority to sell real estate and convert it into personalty, such sale
works an equitable conversion, it is held, and the real estate is t(i
be considered as personal property, and the sureties can be ulti-
mately held responsible for the results of such action.^^ But other
courts hold that a new bond shall be executed by the principal or
executor, on selling real estate, and the sureties on the first bond
are not liable for his default as to the accounting for proceeds of
such sale, though the executor has authority to re-invest them/®
(Some courts hold that the sureties on the first bond are liable for
13. Jackson v. Wilson, 117 Ala.
432, 23 So. 521.
See, also, Campbell v. American
Bonding Co. (Ala. 1911), 55 So. 306;
Probate Court of City of Pawtucket
V. Williams, 30 R. I. 144, 73 Atl. 382,
74 Atl. 177.
A test of representathe or indi-
Tidnal liability is whether the judg-
ment, the suit against the adminis-
trator as such would invite, would
fasten or establish a liability upon
or against property of the decedent.
Campbell v. American Bonding Co.
(Ala. 1911), 55 So. 306, citing Ala-
bama State Bank v. Glass, 82 Ala.
278, 2 So. 641; Burdine v. Roper, 7
Ala. 466; Weeks v. Love, 19 Ala. 25;
Godhold V. Roberts, 20 Ala. 354.
14. Illinois. — Hoffman v. People,
182 111. 390, 55 N. E. 981, 78 111. App.
345; Young v. People 35 111. App.
363.
Massachusetts. — Robinson v. Mil-
lard, 133 Mass. 236.
New York. — Douglass v. Mayor, 56
How. Pr. (N. Y.) 178.
Pennsyliania. — Reed v. Common-
wealth, 11 Serg. & R. (Pa.) 441;
Commonwealth v. Gibson, 8 Watts
(Pa.) 214.
South Carolina. — Jennings v. Parr,
62 S. C. 306, 40 S. E. 683.
15. Emmons v. Gordon, 140 Mo.
490, 41 S. W. 998; Hood v. Hood, 85
N. Y. 561; Hartzell v. Common-
wealth, 42 Pa. St. 453.
16. Illinois. — Hoffman v. People,
78 III. App. 345.
Indiana. — Warwick v. State, 5 Ind.
350.
Iowa. — Bunce v. Bunce, 65 Iowa
106, 21 N. W. 205.
Kansas. — Morris v. Cooper, 35
Kan. 156, 10 Pac. 588.
Ma<5sachnsetts.— Robinson v. Mil-
lard, 133 Mass. 236.
§ 245 Suretyship and Guaranty. 264r
the income of real estate." But this matter is to a great extent
regulated by statute, which makes sureties responsible for the pro-
ceeds or rents and profits of real estate received by the executor or
administrator in his representative capacity, as well as for person-
alty.^«
There is a conflict of authority in the decisions of the several
States as to whether the sureties are liable for the proceeds of real
estate, received by the principal, and they cannot be reconciled by
reason of the diiferences which exist in the form of the bond con-
sidered in the several cases.^^ The local statute and form of bond
should be consulted in every case.
§ 245. Sale of Real Estate Beyond Jurisdiction of Court. — By
the weight of authority, the sale of real estate, beyond the juris-
diction where the will is probated, is inoperative and can have no
extra-territorial force or validity ; and the executor of such will
cannot, because of his appointment in accordance with the laws of
one State, thereby acquire authority to sue for, or in any manner
intermeddle with such realty or effects of his testator, unless the
will be tliere proved, or the law of such State dispenses with the
probate conferring the requisite permission.^** Hence, the sureties
of an executor are not liable for the default of an executor to ac-
count for the proceeds of the sale of real estate in another State,
where it is not shown that the will was probated in the other State,
nor that the sale was made in accordance with the laws of the other
State.^^ But there are authorities announcing a different rule^
17. Llndley v. State ex rel Wells, 19. Probate Court v. Hazard, 13 R.
115 Ind. 502, 17 N. E. 611; Dlx v. I. 3. This case discusses the differ-
Morris, 66 Mo. 514; Reherd v. Long, ent decisions, and its review is valu-
77 Va. 839; Mann v. Everts, 64 Wis. able. White v. Dltson, 140 Mass. 351,
372, 25 N. W. 209. 4 N. E. 606.
18. Indiana.— Hawkins v. Kimball, 20. Kerr v. Moon, 9 Wheat. (U. S.)
57 Ind. 45. 565, 6 L. Ed. 161; Doe v. McFarland,
Maine.— Decker v. Decker, 74 Me. 9 Cranch (U. S.) 151, 3 L. Ed. 687;
465. Lucas v. Tucker, 17 Ind. 41; Em-
Missouri. — Dix v. Morris, 66 Mo. mons v. Gordon, 140 Mo. 490, 41
514. S. W. 998; Wills v. Cooper, 2 Ohio St.
Ohio.— Griswold v. Frank, 22 Ohio 124.
St. 90. 21. Emmons v. Gordon, 140 Mo.
Tirginia.— Reherd v. Long, 77 Va. 490, 41 S. W. 998.
839.
265 Bonds Under Judicial Sanction. § 24(>
which holds that where an executor qualifies in one State to sell
land in another State which belongs to his testator, under the power
of the will, the principal and his sureties are liable for the default
of the principal in accounting for the proceeds of such sale of the
extra-territorial lands.^^
§ 246. Surety is Liable Only for Principal's Official Acts. —
Sureties on the bond of an administrator or executor are liable only
for acts of nonfeasance or misfeasance of their principal in respect
of his official acts. If the principal fairly arid honestly administers
the estate committed to his care and pays to the distributees their
proper shares of the estate, then his sureties are discharged from all
obligations upon his official bond.^^ Hence, the giving of a note by
the administrator is such a departure from his authority as to re-
lieve the estate and also his sureties from liability as to the pay-
ment of the note."'*
A surety is not bound to answer for the default of an executor
or administrator in any line of actions not within his official ca-
pacity.^^
iSo a surety in an executor's bond is not liable for rents and
profits of the real estate of the testator received by the executor and
charged to him by the court, when he has no such authority
to collect by law.^® The surety is not bound to settle for the
rents and profi'ts of the testator's laud converted by his principal. ^^
•So where no duty is imposed upon the executor as executor, but
22. Judge V. Heydock, 8 N. H. 491; ministrator are not liable for the
Hooper v. Hooper, 29 W. Va. 276. breach of agreement made by him
23. Bird v. Mitchell, 101 Ga. 46, 28 with the heirs or others where the
S. E. 674. promise was one made by him in
See, also, James v. Little, 135 Ga. his individual capacity and not in
672, 70 S. E. 251. his capacity as administrator.
24. Coruthwaite v. Bank, 57 Ind. James v. Little, 135 Ga. 672, 70 S.
268; Rittenhouse v. Ammerman, 64 E. 251.
Mo. 197; Curtis v. Bank, 39 Ohio 579; 26. Gregg v. Currier, 36 N. H. 200.
Gregory v. Leigh, 33 Tex. 813. See, also. United States Fidelity
25. Shields v. Smith, 8 Bush (Ky.) & Guaranty Co. v. Russell & Co.,.
601; State ex rel. Jacobs v. Elliott, 141 Ky. 601, 133 S. W. 572.
157 Mo. 609, 57 S. W. 1087; State v. 27. Gibson v. Farley, 16 Mass. 280;
Anthony, 30 Mo. App. 638. McCoy v. Scott, 2 Rawle (Pa.) 222;
IndiTidnal contract with heirs. Jennings v. Parr, 62 S. C. 306, 40
The sureties upon a bond of an ad- S. E. 683.
•§ 247 Suretyship and Guaranty. 266
upon him as a devisee under the will, he is liable only as devisee,
and not as executor, and so there is no liability upon his surety as
executor.^** In general, sureties are responsible for the performance
of the executorial duties such as defined by law, such as collecting
of ithe personal assets, the faithful performance of his duties, as
the appropriation of the payments to the debts and legacies and the
proper accounting of the personal property. But they are not lia-
ble for failure of the execution of the trusts imposed by the will.^^
And the sureties on the bond of a public administrator are only
liable for money coming into his hands in his oificial capacity,"'^
§ 247. Giving New or Additional Bond. — Whether the new
-or additional bond releases the sureties on the prior bond depends
upon the statute. It is generally held that if the application lor
A new bond is made by a surety on the prior bond, the surety on
the prior bond is released from liability for all defaults of the
principal after the new bond is executed and approved. But if
the court acts on his own motion, or if the application is made
by some person other than a surety, the new bond is ordinarily
cumulative in its effect and the sureties on the prior bond remain
liable. In some jurisdictions the court may, by statutory provi-
sions, on the application of any surety who conceives himself to
be in danger by reason of his suretyship on the bond, require the
principal to give another bond under penalty of being removed
from office.^^
When the first bond continues in force and is obligatory upon
the makers as if the second had not been given, a creditor or other
person interested in the estate has his election upon which bond to
sue, if the maladministration for which suit is brought is a breach
of both bonds.^"
When the principal gives a new bond, there is no new commit-
ment of the estate to his hands, nor is there any settlement ''
or rest made in, his accounts, unless so ordered by statute. And
28. Sims V. Lively, 14 B. Mon. 30. State ex rel. Jacobs v. Elliott,
(Ky.) 433. 157 Mo. 609, 57 S. W. 1087.
29. Carter v. Young, 9 Lea (Tenn.) 31. Johnson v. Frequay, 1 Dana
210; Drane v. Baylies, 1 Humpli. (Ky.) 514; Stevens v. Stevens, 3
(Tenn.) 173; Hugh>ett v. Hughlett, Redf. (N. Y.) 507; Foster v. Wise, 46
3 Humph. (Tenn.) 452. Ohio St. 20, 16 N. E. 687.
32. Pinkstaff v. State, 59 111. 148.
2Q7 Bonds Under Judicial Sanction. § 248
this new bond covers the whole liability of the administrator to
the estate, whether incurred before or after execution.^^
One class of cases holds that the sureties in the new bond are
primarily liable for the whole amount for which the principal
ought to account ; that is, the last bond should be exhausted before
resort can be had to the first for any defalcation that occurred be-
fore the sureties on it are discharged.^* But this is contrary to the
general rule.^'' Still other courts hold that the first sureties are
primarily liable, and if the last sureties have paid the debt, they
may recover against the first the full amount paid by them.^^
A surety may be released in some jurisdictions after a settle-
ment has been made by his principal, after which the surety is
no longer liable,^'' but the statute must be strictly followed.^^ So,
unless permitted by statute, a surety cannot be discharged upon
the application of the executor.^^
§ 248. Liability of Discharged Surety. — It will be presumed
that the administrator performed his duty until the contrary
is proved; and to render a discharged surety liable, it must
be alleged and proved that before his discharge, the administrator
33. Arkansas. — Dugger v. Wright. Wisconsin. — Rudolph v. Malone,
51 Ark. 232, 11 S. W. 213. 104 Wis. 470. 80 N. W. 743.
Illinois. — Pinkstaff v. State, 59 111. As to public administrators, see
148. State v. Kennedy, 163 Mo. 510, 63 S.
Indiana. — State ex rel. Horner v. W. 678; State v. Holman, 93 Mo. App.
Barrett, 121 Ind. 92, 22 N. E. 969. 611, 67 S. W. 747.
Kansas.— Brown v. State, 23 Kan. 34. Bobo v. Vaiden, 20 S. C. 271;
235. Morris v. Morris, 9 Heisk. (Tenn.)
Kentucky. — Pepper v. Donnelly, 87 814.
Ky. 259, 8 S. W. 441. 35. Pinkstaff v. State, 59 111. 148;
Massachusetts. — Choate v. Arring- Choate v. Arrington, 116 Mass. 552;
ton, 116 Mass. 552. State v. Berning, 74 Mo. 87.
Missouri. — State v. Berning, 74 Mo. 36. Oorrigan v. Foster, 51 Ohio St.
87. 225, 37 N. E. 263.
New York. — Scofield v. Churchill, 37. Clark v. American Surety Com-
72 N. Y. 565. pany, 171 111. 235, 49 N. E. 481.
Ohio, — Foster v. Wise, 40 Ohio St. 38. Hickerson v. Price, 2 Heisk.
20. (Tenn.) 623.
Oklahoma. — Greer v. McNeal, 11 39. Clark v. American Surety Com-
Okla. 519, 526, 69 Pac. 891, 893. pany, 171 111. 235, 49 N. E. 481; Bel-
Tfnnessee. — Morris v. Morris, 9 linger v. Thompson, 26 Ore. 320, 37
Heisk, 814. Psic. 714, 40 Pac. 229.
§§ 249, 250 Suretyship aisd Guaranty. 268
had misapplied the assets of the estate. In the absence of such
proof, the surety on the new bond is alone liable/'^ where the
statute declares the discharged surety shall be liable only for such
misconduct as happened prior to giving the new bond/^
§ 249. Sureties on Joint Bonds. — If there are more than one
principal of the estate, and one or more of them are removed, die
or resign their office, then the remaining must discharge the whole
duties required by law respecting the estate. And the sureties on
the joint bond are liable for the subsequent acts of the remaining
principals,'*' during their administration.*^ Before discharge, the
administrator must account to his co-administrators, and then if
the latter give a new bond it operates to exonerate the sureties
upon the joint bond, and from liabiltty for a devastavit after such
order of discharge.**
One of the joint administrators may bring suit against the sure-
ties on a joint bond for a default of one of his co-administrators
and recover the full amount of defalcation from the sureties.*^
And after the sureties have paid, they have their remedy, if they
have any, against the administrator who sued them, in his indi-
vidual capacity, as one of their principals, for indemnity.*®
'When a joint and several bond has been executed by two execu-
tors an action may be brought against the sureties on the bond of
one of the executors in favor of the other who is a legatee.*^
§ 250. Allowances to Intestate's Widow and Family. — In the
States where allowances are made directly to the family of the
decedent, his representatives have no control over them. iSo if
an administrator interferes with such property, he is individually
liable as a tort-feasor, and, of course, his sureties are not liable
40. Beard v. Roth, 35 Fed. 397; 44. Veach v. Rice, 131 U. S. 293, 9
Phillips V. Barzeal, 14 Ala. 146; State S. Ct. 730, 33 L. Ed. 163.
V. Stroop, 22 Ark. 328; McKim v. 45. Boyle v. St. John, 28 Hun (N.
Bartlett, 129 Mass. 226. Y.) 454; Sperb v. McCoun, 110 N. Y.
41. Beard v. Roth, 35 Fed. 397. 605, 18 N. E. 441.
42. Dobyns v. McGovem, 15 Mo. 46. Boyle v. St. John, 28 Hun (N.
662. Y.) 454; Sperb v. McCoun, 110 N. Y.
43. Marsh v. People, 15 111. 284; 605, 18 N. E. 441.
Brazer v. Clark, 5 Pick. (Mass.) 96; 47. Municipal Court v. Whaley, 2&
Towne v. Ammidon, 20 Pick. (Mass.) R. I. 289, 55 Atl. 750.
535; State v. Rucher, 59 Mo. 17.
269 Bonds Under Judicial iSanction. § 251
for his act.'*^ Thus, money on hand set apart by law for the sup-
port of the widow of the decedent and his family, belongs to her
for that purpose, and is not assets in the hands of the administra-
tor, and if he converts it, no recourse can be had against his sure-
ties.^^
But if the statute requires the executor or administrator to pay
over the money to the widow and family, or specifies articles al-
lowed, then the sureties on his bond are liable for his default in
non-compliance with the law.^"
§ 251. Executor or Administrator Debtor to the Estate. — The
rule of the common law is, that the appointment and qualification
of a debtor to the estate as executor of his creditor's assets, oper-
ates as a legacy of the debt and discharges the executor from its
payment, and of course the sureties on his bond are not liable for
the collection of such debt. But this rule has been greatly quali-
fied in England, and probably never existed in the United States.
But the rule in the United States is not uniform. One line of
<;ases holds that such debt becomes, prima facie^ assets in the hands
of the principal, to be accounted for and adjusted in court as as-
sets of the estate actually realized, and a default of the principal
to account for such debt, makes his sureties liable as if it was any
other asset. ^^ That is, the acts of the principal in dealing with
the instruments of which his indebtedness to the estate arises, can-
not vary or affect the rule that, as a contract between him and the
estate, they are extinguished, and the amounts due upon such in-
struments have become assets of the estate, and if default is made
by the principal, the sureties are liable for these debts as so much
cash received, though the administrator or executor owing the
estate was insolvent during the period of his ofiice.^^ And the sure-
48. Morris v. Morris, 9 Heisk. Cheetham v. Ward, 1 Bos. & P. 630;
(Tenn.) 814. Freakley v. Fox, 9 Barn. & Cr. 130.
49. Rocco V. Cicalla, 12 Heisk. 52. Alabama. — Wright v. Long, 66
(Tenn.) 508; Bayless v. Bayless, 4 Ala. 3S9.
Cold. (Tenn.) 359. California.— Treweek v. Howard,
50. Commonwealtli v. Longe- 105 Cal. 434, 39 Pac. 20.
Tiecker, 1 Chester County Rep. (Fa.) Massachnsett?. — Chapin v. Waters,
202. 110 Mass. 195.
51. Winship v. Bass, 12 Mass. 199; Xew Hampshire. — Judge of Pro-
Waukford v. Waukford, 1 Salk. 299;
§ 252 Suretyship and Guaranty. 270
ties will not be discharged from such liability by fraud of the
principal in procuring their execution of the bond, where the bene-
liciaries of the estate in whose interest the liability is sought to
be enforced are themselves innocent of the fraud."^
Another line of cases holds that if such principal is insolvent
at the time of his appointment, his failure to pay his debt is not
a breach of the trust for which the sureties are liable ; and so if
the principal, in accounting, treats his own debt as available as-
sets, and the court decrees distribution accordingly, the sureties
are not bound by the decree, and a court of equity will grant the
sureties relief, ^^ Such principal should charge himself with the
debt ; but his sureties are not liable for it, if they show that he was
insolvent beyond the amount that could have been saved to the
estate by the exercise of diligence.^^ But where the principal is
solvent, it is his duty to inventory and account for his own debts
to the estate. If he does not, his sureties are liable for the same.^^
§ 252. Common Law Rule as to Executor Being Debtor to
the Estate — Statutory Provisions. — Except as against creditors,
an executor's indebtedness to the testator was by the common law
released or extinguished."
But this has been changed by statute in many States, making
bate V. Sulloway, 68 N. H. 511, 44 Pa. St. 533; Garber v. Common-
Atl. 720. wealth, 7 Pa. St. 265.
Ohio. — McGaughey v. Jacoby, 54 Tennessee. — Rader v. Yeargin, 85
Ohio St. 487, 44 N. E. 231; Tracy v. Tenn. 486, 3 S. W. 178.
Cord, 2 Ohio St. 431. Vermont.— Lyon v. Osgood, 58 Vt.
63. Treweek v. Howard, 105 Cal. 707.
434, 39 Pac. 20; McGaughey v. 55. State ex rel. McClamcock v.
Jacoby, 54 Ohio St. 487, 44 N. E. 231. Gregory, 119 Ind. 503, 22 N. E. 1.
64. Maine.— Potter v. Titcomb, 7 56. Condit v. Winslow, 106 Ind.
Me. 302. 142, 5 N. E. 751; Piper's Estate, 15
Missonri. — McCarty v. Frazer, 62 Pa. St. 533; Rader v. Yeargin, 85
Mo. 263. Tenn. 486, 3 S. W. 178; Probate
^'ew Jersey. — Marker v. Irick, 10 Court v. Merriam, 8 Vt. 234.
N. J. Eq. 269. 57. Thomas v. Thompson, 2 Johns.
New York. — Baucus v. Barr, 45 (N. Y.) 471; Gardner v. Miller, 19
Hun 582, 107 N. Y. 624. Johns. (N. Y.) 188; Marvin v. Stone,
Pennsylyanla.- Piper's Estate, 15 2 Cow. (N. Y.) 781; Co. Litt. 264, b,
note 1; 2 Bl. Com. 512.
271 Bonds Undee Judicial Sanction. § 252
him liable for his own debt to the estate and thereby binding his
sureties.^^
But without any special statute, this doctrine was accepted in
]\Iassachusetts, Maine, Connecticut and Vermont,^^ either on the
gi'ouud of statutes providing for the settlement of estates and the
distribution of property not devised or liquidated,^" or on the
ground that the common law doctrine had never been adopted by
the State.*'^ This is the general rule, whether controlled by special
statute or not, as the common law is repudiated. So the sureties
are liable for the executor's or administrator's debt to the testator,
as they are his privies, and their liability is co-extensive with that
of the principal.^^
So whenever the probate court enters a decree against their
principal which binds the principal, their liability is also de-
limited.*'^ And the administrator is not permitted to show that he
could not collect a debt due from himself.^* The consequence is,
that he and his sureties are liable for the amount of such debt,
in like manner as if he had received it from any other debtor of
the testator; and it is presumed that the sureties had in contem-
plation this liability when they executed the bond, and, hence,
cannot complain of the natural and legal consequence of their
own voluntary act.^^ It is held that if at the time the surety as-
sumes responsibility the executor is able to pay his debt to the
estate, or afterwards, during the settlement of the estate, he be-
comes able to pay it, the surety is responsible for it as assets.
58. Judge of Probate v. Sulloway, 62. Wattles v. Hyde, 9 Conn. 10;
68 M. H. otl, 44 Atl. 720; Norris v. Judge of Probate v. Sulloway, 68 N.
TowJo, i^.4 N. H. 290; Soverhill v. H. 511, 44 Atl. 720.
■^n-' r, 59 N. Y. 140; Baucus v. 63. Stovall v. Banks, 10 Wall (U.
^^-1 er, 89 N. Y. 1; In re Consalus, S.) 583, 19 L. Ed. 1036; Choate v.
' "^ " "^'. ^40. Arrington, 116 Mass. 552; Towle v.
■"*. T.eland v. Felton, 1 Allen Towle, 46 N. H. 431; Deobold v. Op-
i?.'a£s.), 531; Winship v. Bass, 12 permann. 111 N. Y. 531, 19 N. E. 94.
Mass. 198; Probate Court v. Mer- 64. Kinney v. Ensign, 18 Pick.
riam, 8 Vt. 234. (Mass.) 232.
60. Winship v. Bass, 12 Mass. 198; See also Bassett v. Fidelity & De-
Probate Court V. Merriam, 8 Vt. 234. posit Co., 184 Mass. 210, 68 N. E.
61. Bacon v. Fairman, 6 Conn. 205.
121; Williams v. Morehouse, 9 Conn. 65. Stevens v. Gaylord, 11 Mass.
470; Davenport v. Richards, 16 256.
Conn. 310; Potter v. Titcomb, 7 Me.
302.
^ 253
SUEETYSHIP AND GUARANTY.
272
"VVlien the executor is solvent and able to pay, and no surety is
needed, the surety is responsible for his debt ; but where the execu-
tor is unable to pay and a surety's liability should be valuable,
the surety is not liable.*®
§ 253. General Liability of Sureties. — The liability of sure-
ties on the bond of executors and administrators is generally co-
extensive with that of their principal." Thus, they are liable for
misappropriation of funds of the estate ;^ for non-payment of the
profits of such funds ;*'^ for the principal's default in performing
his official duties.'''' But the sureties are not liable for acts which
are not within the scope of their principal's powers and duties,
06. Harker v. Irick, 10 N. J. Eq.
269; Lyon v. Osgood, 58 Vt. 707, 7
Atl. 5.
67. Goltra v. People, 53 111. 224;
State V. Purdy, 67 Mo. 89; Greer v.
McNeal, 11 Okla. 519, 526, 69 Pac.
891, 893.
See James v. West, 67 Ohio St. 28,
65 N. E. 156.
There may l>e a recovery of inter-
est on the penalty of a bond where
the executor is charged in excess
thereof. Bassett v. Fidelity & De-
posit Co., 184 Mass. 210, 68 N. E. 205.
68. State v. Brown, 80 Ind. 425;
State V. Wilmer, 65 Md. 178, 3 Atl.
252.
69. Watson v. Whitten, 3 Rich. (S.
C.) 224.
70. Alabama. — Clarke v. West, 5
Ala. 117.
Indiana. — Morgang v. Clipp, 21
Ind. 119.
Missouri.— State v. Anthony, 30
Mo. App. 638.
New Hampshire. — Smith v. Jewett,
40 N. H. 513.
Oliio.— Wade v. Graham, 4 Ohio
126.
Liable for failure to collect debt
due estate. Sanchez v. Porster, 133
Cal. 614, 65 Pac. 1077.
Liable for failure to bring an ac-
tion before the expiration of the
statutory period. Jenkins v. Jensen,
24 Utah 108, 66 Pac. 773.
Liable for failure to comply with
an order of court to pay over money.
Mortenson v Bergthold, 64 Neb. 208.
89 N. W. 742; Smith v. Rhodes, 68
Ohio St. 500, 68 N. E. 7.
Compare Keegan v. Smith, 67 N.
Y. Supp. 281 affirmed 60 App. Div.
(N. Y.) 168, 70 N. Y. Supp. 260, as
to burden of proof to escape liabil-
ity.
Refusal to comply with a final
judgment of court is a breach ren-
dering sureties liable. Greer v. Mc-
Neal, 11 Okla. 519, 526, 69 Pac. 891,
893.
Where order not entered no
breach. Robbins v. Burridge, 128
Mich. 25, 87 N. W. 93, 8 Det. Leg. N.
509.
Failure to pay judgment debts;
may show lawful use of assets of
estate. Mclntire v. Cottrell 185
Mass. 178, 69 N. E. 1091.
Payment of claims without an or-
der of court is a breach for which
recovery may be had on the bond.
State V. Taylor, 100 Mo. App. 481,
74 S. W. 1032.
273 Bonds Under Judicial iSanction. § 254
even if such acts are ordered to be done by the court f^ nor when
the acts of the principal are personal and not official.'^ So where
the agent of a creditor of the decedent takes out letters of ad-
ministration pursuant to a power of attorney given him by his
principal, the sureties on his bond are not liable." A failure of
the principal to make proper collection of assets is a maladminis-
tration for which the sureties are liable f* and so where the execu-
tor neglects to follow the directions in the will ;'" and so where
he neglects to sell the goods of the estate when necessary ;^*' and
when he fails to take proper security for goods sold on credit.'^
If his acts of omission work no injustice to the estate his sure-
ties are not liable ;^^ of if his acts were performed at the request
of the parties in interest.'^
§ 254. Same Person Administrator of One Estate and Execu-
tor of Another. — One person can be the administrator of one
estate and executor of another. In such case the liability of his
sureties may be complicated. But as a general rule, one set of
sureties are not liable for the defaults as to the other estate. So
the sureties on his administrator's bond do not incur any liability
in respect to his acts as executor of the other estate, though the
testator and the intestate were partners in business. Such relation
does not affect the right of the creditor of the intestate to have his
separate estate applied to the payment of his individual debts, and
71. Nelson v. Woodbury, 1 Me. 251. Utah. — Jenkins v. Jensen, 24 Utah
72. Mississippi.— Davis v. Hoopes, 108, 66 Pac. 673.
33 Miss. 173. Vermont.— Lyon v. Osgood, 58 Vt.
New Hampshire. — Merrill v. Har- 707, 7 Atl. 5.
ris, 26 N. H. 142. Virg-iiiia. — Lacy v. Stamper, 27
Jforth Carolina, — McLean v. Mc- Gratt. 421.
jLean, 88 N. C. 794. 75. Sanford v. Oilman, 44 Conn.
Rhode Island.— Sarle v. Court, 7 461; Heady v. State, 60 Ind. 316;
R. I. 270. Prescott v. Pitts, 9 Mass. 376.
South Carolina, — Kennedy v. 76. State v. Scott, 12 Ind. 529.
Adickes, 37 S. C. 174. 77. White v. Moe, 19 Ohio St. 37.
73. Moodie v. Penman, 3 Desaus. 78. Rison v. Young, 7 Martin N.
(S. C.) 482. S. (La.) 298; State v. Smith, 68 Mo.
74. California. — Sanchez v. Fors- 641.
ter, 133 Cal. 614, 65 Pac. 1077. 79. Brazer v. Clark 5 Pick.
Connecticut. — Butler v. Sisson, 49 (Mass.) 96; Homes v. O'Connor, 9
Conn. 580. Tex. Civ. App. 454, 29 S. W. 236.
18
§ 255 Suretyship and Guaranty. 274r
does not make the sureties on the administrator's bond liable for
waste committed by him as executor.*'^ But if one estate is indebted
to the other, the waste of the debtor estate, instead of paying over
to the creditor estate, makes the sureties of the creditor estate liable
for such default,*' because the debtor estate was assets in his hands
to pay the creditor esta;te.
§ 255. Executor or Administrator Acting in Other Fiduciary
Capacity. — An executor or administrator often becomes a trus-
tee or guardian of parties interested in the estate, and it may be-
come difficult to place the liability on the two sets of sureties. The
general rule is the administrator's or executor's bond only covers
his duties acting in that capacity, and not those which are in an-
other fiduciary character.*^ Thus, where the administrator is also
guardian, the law will adjudge the ward's portion of the property
then in his hands to be in his possession in the capacity of guar-
dian after the time limited by law for the settlement of the estate,,
whether a final account has been passed upon by the proper court
or not, upon the principle that what the law has enjoined upon him
to do, it shall be considered as done, and from that time he holds
the ward's proportion of the property by operation of law in that
character into which he would be entitled to receive it upon the
final completion of his trust as executor or administrator; by oper-
ation of law there was a transmutation of the same to him as guar-
dian, and he no longer holds the same as administrator or execu-
tor.*^ But in other jurisdictions it is held that until the adminis-
trator or executor has rendered an account or done some act to
indicate that he has transferred the property from himself in the
one capacity to himself in* the other character, he acts as executor or
administrator, and his sureties are therefore liable accordingly.*^
80. Norman v. Buckner, 135 U. S. Gill. & J. 220; Woolley v. Price, 86
500, 10 S. Ct. 835, 34 L. Ed. 252. Md. 176, 37 Atl. 644.
81. Morrow v. Penton, 8 Leigh Massachusetts. — White v. Ditson,
(Va.) 54. 140 Mass. 351, 4 N. E. 606.
82. Bell V. People, 94 111. 230. Michigan.— Cranson v. Wilsey, 71
83. United States. — Pratt v. Mich. 356, 39 N. W. 9.
Northam, 5 Mason 95; Taylor v. Del- 84. Cluff v. Day, 124 N. Y. 195, 26
bois, 4 Mason 131. N. E. 306; Potter v. Ogden, 136 N.
Illinois.— Bell v. People, 94 111. Y. 384, 33 N. E. 228; Gilmer v. Baker^
230. 24 W. Va. 72.
Maryland. — Watkins v. Shaw, 2/
275 Bonds Undee Judicial Sanctioa'. §§ 256, 257
If the bond covers all of the duties imposed by the law, then the
sureties are liable for the faithful performance of the principal's
duties in their fiduciary trust unless contrary to statute.^^
§ 256. Failure to Return Inventory or to Account. — If the
administrator or executor fails to return an inventory as s«pecified
by law, he is in default for which his sureties are liable.*® The
extent of the liability for a breach of the condition to file an in-
ventory, is the amount that may be found equitably due to any one
who is injured thereby.*^ If no damages result, then there is no
injury and no recovery can be had.^
§ 257. Release of Sureties. — The sureties on an administra-
tor's or executor's bond will be released whenever their liability is
changed or increased without their assent. Thus, a secret agree-
ment between the distributee of an estate and the administrator
thereof, that the administrator may use the fund in his private
business, operates to discharge the sureties upon his bond.^^ The
principal has no right to convert the assets to his private use, nor to
speculate with them, nor to invest them in trade or manufacturing
business, either upon his own account or that of the estate. If he
does he is liable ; and if the beneficiary agrees to such maladmin-
istration, the sureties are released.^^ Any alteration of the bond
without the sureties' consent will discharge them.^^ A discharge of
the principal will also discharge his sureties.®^ And the reappoiut-
80. State V. Wilmer, 65 Md. 178, 3 Pennsylrania. — Commonwealth v.
Atl. 252; Walker v. Patillo, 7 Lea Bryan, 8 Serg. & R. 128.
(Tenn.) 449. West Tirginia. — Thompson v.
86. California.— See Sanchez v. Nowlin, 51 W. Va. 346, 41 S. E. 178.
Forster, 133 Cal. 614, 65 Pac. 1077. 87. State v. French, 60 Conn. 478,
Illinois.— People v. Hunter, 89 111. 23 Atl. 153.
392. 88. Reynolds v. Reynolds, 11 Ala.
Indiana. — State v. Scott, 12 Ind. 1023; State ex rel. Clamrock v.
529. Gregory, 119 Ind. 503, 22 N. E. 1.
Massachusetts. — Forbes v. Mc- 89. Rutter v. Hall, 31 111. App. 647.
Hugh, 152 Mass. 412, 25 N. E. 622; 90. Ward v. Tinkham, 65 Mich.
Walker v. Hall, 1 Pick. 20. 695, 32 N. W. 901.
Missouri. — Sherwood v. Hill, 25 91. Howe v. Peabody, 2 Gray
Mo. 391. (Mass.) 556.
Ohio.— Mighton v. Scott, 38 Ohio 92. People v. Lott, 27 111. 215.
St. 650.
§ 258
Suretyship and Guaranty.
276
ment of a resigning administrator with new bond will discbarge the
sureties on his first bond.^^ Sureties are generally liable up to the
time of the discharge of their principal f^ but if the discharge is
through fraud, neither the principal or surety is relieved from
liability/'"'
A surety is estopped to deny in an action on the bond the valid-
ity of the appointment of his principal ^*' or that the will was duly
probated.'^' The date of the final decree of distribution of an
estate is the time from which the period of limitations prescribed
by statute begins to run.^^
§ 258. When Right of Action Arises Against Sureties. — It is
the general rule that the liability of sureties arises on an adminis-
trator's or executor's bond after default of their principal has been
fixed, and then only under the terms of the obligation entered into
by them.^^ But in some jurisdictions, generally controlled by stat-
ute, it is not essential to a right of recovery on such bond that de-
vastavit shall have been established against the administrator or
executor.-^
93. Steele v. Graves, 68 Ala. 17.
See, also, Veach v. Rice, 131 U. S.
293, 9 S. Ct. 730, 33 L. Ed. 163.
94. Potter v. Ogden, 136 N. Y. 384,
33 N. E. 228; Shelton v. Cureton, 3
McCord L. (S. C.) 412.
95. Pollock V. Cox, 108 Ga. 430, 34
S. E. 213.
96. Nash v. Sawyer, 114 Iowa 742,
87 N. W. 707; Hoffman v. Fleming,
66 Ohio St. 143, 64 N. E. 63.
97. Hoffman v. Fleming, 66 Ohio
St. 143, 64 N. E. 63.
98. Hall V. Cole, 71 Ark. 601, 76
S. W. 1076; Ganser v. Ganser, 83
Minn. 199, 86 N. W. 18.
99. Massachusetts. — Mclntire v.
Cottrell, 185 Mass. 178, 69 N. E.
1091; Choate v. Jacobs, 136 Mass.
297.
Mjclugan. — Grady v. Hughes, 80
Mich. 184, 44 N. W. 10.50.
New York— Potter v. Ogden, 136
N. Y. 384, 33 N. E. 228; Garvey v.
United States Fidelity & Guaranty
Co., 77 App. Div. 391, 79 N. Y. Supp.
337.
Ohio. — Dawson v. Dawson, 25
Ohio St. 443.
Pennsjivania. — Boyd v. Common-
wealth, 36 Pa. St. 355.
Must be an accounting before
suit. Reed v. Hume, 75 Utah 248,
70 Pac. 998.
Compare Judge of Probate v. Lee,
72 N. H. 247, 56 Atl. 188.
1. Georgia. — Morgan v. West, 43
Ga. 275.
Illinois. — Tucker v. People, 87 111.
76.
Indiana. — State v. Johnson, 7
Blackf. 520.
Kentucky. — Clarkson v. Common,
wealth, 2 J. J. Marsh 19.
Missouri. — State v. Shelby, 75 Mo.
482.
Texas. — Francis v. Northcote, 6
Tex. 185.
277 Bo>-Ds Under Judicial Sanction. § 259
Such action may be brought by a creditor of the estate, by a lega-
tee, distributee, or other interested person in the assets who has
been injured by the default of the principal.^
An administrator de bonis non cannot sue at common law on a
bond of his predecessor.^ But this rule has been changed by statute
in some jurisdictions, so now such principal can sue at law his
predecessor.*
§ 259. Sureties of Guardian — General Liability. — It is the
duty of sureties on a guardian's bond to make inquiries and to see
that their principal discharges his obligations as guardian, whether
he be solvent or insolvent.^ Because the object of requiring a bond
with sureties is to protect the ward from the fraud and dishonesty
of his guardian, no less than against his insolvency ; to allow the
sureties to escape liability from the very fraud of their principal
which he was under contract obligation not to commit would be to
render such unavailing as a protection to the ward and defeat the
purpose of the law in requiring guardians to give bond with se-
curity.^
Guardianship is a personal trust. The guardian must exercise
at least ordinary and reasonable care, and make the property of
the ward productive, and this duty is a personal one, which cannot
be delegated, and for the performance of which his sureties are
answerable. iSo the guardianship terminates with the death of the
guardian. The duty to account continues and the sureties cannot
discharge themselves only by showing that in accordance with the
terms of the bond, the principal, during the time the estate was
committed to his care, has faithfully administered his trust. They
are bound to answer for his mismanagement of the estate up to the
time of his death, and to account when called upon to do so, for any
damages resulting to his ward or his ward's estate in consequence
2. State V. Scott, 12 Ind. 529; 4. Marsh v. People, 15 111. 284;
Rawson v. Piper, 36 Me. 98; Good- Palmer v. Pollock, 26 Minn. 433, 4
kin V. Hoit, 3 N. H. 392; Boyle v. N. W. 1113.
St. John. 28 Hun (N. Y.) 454. 5. Forrester v. Steele, 46 Md. 154.
3. Marsh v. People, 15 111. 284; 6. Gillett v. Wiley, 126 111. 310, 19
Lucas V. Donaldson, 117 Ind. 139, 19 N. E. 287.
N. E. 758; Douglas v. Day, 28 Ohio
St. 175.
259
Suretyship and Guaranty.
278
of the mismanagement of the ward's property during the lifetime
of the guardian^
If a guardian is appointed by a court without jurisdiction and
gives a bond, and then takes possession of the ward's property, his
sureties are liable, as on a voluntary bond, for the assets converted
by the guardian/
A guardian and his sureties are accountable for commission of
defaults, and for omission of duty. Hence, they are not only liable
for money and assets collected and taken possession of by the guar-
dian, but also for money and assets which he could secure by proper
or ordinary diligence.^ If the guardian converts the ward's money
to his own use it is a breach of the condition of the bond for which
his sureties are respojisible/''
But a surety is held not to be liable for a defalcation occurring
before the execution of the bond.^^ And a failure to comply with
an invalid order of court does not constitute a breach of the bond.^^
Where a guardian has loaned funds of the estate to himself and
given security therefor the sureties are entitled to a credit in an
action against them of such sum as was realized on the security.^^
7. Garrett v. Reese, 99 Ga. 494, 27
S. E. 750; Ames v. Dorrok, 76 Miss.
187, 23 So. 768.
8. Hazelton v. Douglas, 97 Wis.
214, 72 N. W. 637; United States v.
Tingey, 5 Pet. (U. S.) 115, 8 L. Ed.
€6.
9. Ames v. Williams, 74 Miss. 404,
29 So. 877; State v. Barger, 92 Mo.
App. 631; In re Guardianship of
Fardette, 86 App. Div. (N. Y.) 50, 83
N. Y. Supp. 521; Jennings v. Parr,
62 S. C. 306, 40 S. E. 683.
A suroty on a guardian's bond is
only liable for such personal prop-
erty of his wards as come to his
hands by virtue of his office. He
may not sell the ward's real estate
without the aid of the chancellor
and it can then be sold only in strict
compliance with the statutory pro-
visions regulating such an act. The
covenant of a surety being that the
guardian will discharge his trust as
required by law, this is the measure
of his responsibility, and the surety
is liable on the bond for sucn.
moneys as the guardian had a legal
right to receive by virtue of his of-
fice. Rudy V. Rudy, 145 Ky. 245,
140 S. W. 192.
Liable for note surrendered by
guardian to maker. Lincoln Trust
Co. V. Wolff, 91 Mo. App. 133.
10. Irwin v. Backus, 25 Cal. 221;
Deegan v. Deegan, 2 Nev. 185, 37
Pac. 360.
11. Howe V. White, 162 Ind. 74, 69
N. E. 684.
12. Harter v. Miller, 67 Kan. 468,
73 Pac. 74.
13. Hutson V. Jenson, 110 Wis. 26,
85 N. W. 689.
See Freedman v. Vallie (Tex. Civ.
App. 1903), 75 S. W. 322.
279 Bonds Undee Judicial Sanction. §§ 259a, 260
§ 259a. Bond Not Complying With Statute. — In the case of
a guardian's bond it is decided that even if it is in its terms so
far a departure from a statute in regard to such undertakings as to
render it defective as a statutory bond it may be upheld as a com-
mon law bond independent of the statutory provision, there being
nothing in the statute rendering such bond void or voidable for non-
compliance therewith.^*
§ 260. Giving Additional Security. — Whenever a second bond
is required, not at the instance of the surety on the first, but at the
instance of one of the parties, and is intended as a mere additional
or cumulative bond, and not subsidiary, no discharge of the surety
on the first bond takes place. Such bonds are generally required
when additional money is to come to the hands of the guardian,
such as pension money or money from another State, or a legacy to
the ward.^'' In most jurisdictions where such additional bond is
required, the sureties in the new bond are considered as co-sureties
with those on the first bond, and equally liable with them for the
whole giiardianship from its creation.^'^ And if there are sureties
in different amounts, they are, as between themselves, compellable
to contribute in proportion to the penalties of their respective
bonds."
Thus, under the general rule where a resident guardian is re-
quired to give an additional bond for the proceeds coming to his
hands from a foreign administrator, the second bond is not subsidi-
14. United States Fidelity & Guar- 8 N. E. 117; Loring v. Bacon, 3 Gush,
anty Go. (Wyo. 1912), 121 Pac. 531. 465.
15. Bush V. State, 19 Ind. App. Mississippi. — State v. Hull, 53
523; Middleton Adm'r v. Hensley, 21 Miss. 626.
Ky. Lan. Rep. 703, 52 S. W. 974. rennsylrania. — Gommonwealth v.
16. Illinois. — Ammons v. People, Cox, 36 Pa. St. 442.
11 111. 6. Tennessee.— McGlothin v. Wyatt,
Indiana. — Stevens v. Tucker, 87 1 Lea 717.
Ind. 109; Allen v. State, 61 Ind. 268. 17. Loring v. Bacon, 3 Gush.
Kentucky. — Hutchcraft v. Shrout, (Mass.) 465; Jones v. Blanton. 6
1 Mon. 206. Ired. L. (N. G.) 115; Jones v. Hays,
Massachusetts. — Forbes v. Har- 3 Ired. L. (N. G.) 502; Deering v.
rington, 171 Mass. 386, 50 N. E. 641; Winchester, 2 Bos. & P. 270, 1 Cox
Brooks V. Whitmore, 142 Mass. 399, 318; Pendlebury v. Walger, 4 Younge
& Coll. Ul.
§ 200 Suretyship and Guaranty. 2S0
arj to the first, but is primary security, like the first, for money re-
ceived. The giving of the second did not annul the first ; both con-
tinue, and the two sets of sureties are liable for the guardian's de-
faults ;^^ and such bond is additional and cumulative, and for the
entire guardianship, and the obligors are liable for the vrhole mal-
administration of the guardian/^ In the absence of affirmative
proof to that eflect, there can be no presumption that the parties,
or either of them, would be benefited by discharging the sureties
on the first bond merely because a new bond was required and
9ft
given.
But there is another class of cases which are not wholly in ac-
cord with this doctrine. 'So it is held that the liability of a surety
on a new bond executed by a guardian does not extend to previous
defaults of his principal. Thus, where a guardian had converted
his ward's money before giving the second bond, the sureties on the
latter bond are not liable for such conversion ;^^ that is, sureties
on the second bond are not made liable for past defaults of the
principal unless the bond so prescribes or the statute makes them
responsible.^^ The surety on the second bond is not liable unless the
obligation indicates the assumption of liability for past defalca-
tions.^* But it is held, if the guardian has in his possession the
money converted before the giving of the second bond, the sureties
on the second bond are liable for such default.^^
In some jurisdictions, periodical statutory bonds are given and
required, and such bonds are held to be cumulative under the stat-
ute, though contribution should be in inverse order to that of the
execution.^^
18. State ex rel. Jaseph v. 21. Lowry v. State, 64 Ind. 421;
Mitchell, 132 Ind. 461, 32 N. E. 86; Williams v. State, 89 Ind. 570.
Baum V. Lyman, 72 Miss. 932, 18 So. 22. State v. Jones, 89 Mo. 470, 1
428. S. W. 355.
19. Douglass V. Kessler, 57 Iowa 23. Farrar v. United States, 5 Pet.
63, 10 N. W. 313; Clark V. Wilkinson, (U. S.) 372, 8 L. Ed. .159; United
59 Wis. 543, 18 N. W. 481. States v. Boyd, 15 Pet. (U. S.) 187,
See, also, Pinkstaff v. State, 59 206, 10 L. Ed. 706; Sebastian v.
111. 148; Ennis v. Smith, 14 How. (U. Bryan, 21 Ark. 447; State v. Shack-
S.) 400, 14 L. Ed. 472. leford, 56 Miss. 648.
Compare Sayers v. Cassell, 23 24. Parker v. Medsker, 80 Ind. 155.
Gratt. (Va.) 525. 25. Crook v. Hudson, 4 Lea
20. Stewart v. Johnson, 87 Ga. 97, (Tenn.) 448; Jamison v. Cosby, 11
13 S. E. 258. Humph. (Tenn.) 273.
281 Bonds Under Judicial Sanction. §§ 261, 262
§ 261. Guardian Selling Real Estate, — In most jurisdictions
the general bond does not cover sales made of the ward's real
estate. In such case the guardian is required to give a new bond
to answer for the proceeds of such sales. The duties of the ad-
ministrator and guardian are prescribed by statute, and the trust
created by their appointment extends only to the duties imposed
by statute ; and where they file bonds and qualify and take upon
themselves the administration of the personal assets of such trusts,
the sureties on the bonds filed are liable only for the faithful ac-
counting of such personal assets. So where they apply to and ob-
tain an order of court to sell or rent real estate, and file an addi-
tional bond as a condition precedent to such sales or renting, the
sureties on such bonds are alone liable for the funds resulting there-
from, and the sureties on the general bond are not liable for such
sales.^® The sureties on the first or general bond of the guardian
are not liable for real estate sales by a guardian imder the second
bond.^^
And so the sureties on the last bond are liable for failure of their
principal to carry out specific objects for which such sale was
authorized.^^
§ 262. Discharge of Surety. — So long as the guardian con-
tinues in his official capacity, his sureties can only be discharged
from liability by applying to the court and complying with the
provisions of the law.^^ And such discharge dates from the time
26. People to Use Sterling v. Kansas. — Morris v. Cooper, 35
Huffman, 182 111. 390, 55 N. E. 981; Kan. 156.
Worgang v. Clipp, 21 Ind. 119; Kes- Massachnsetts. — Fay v. Taylor, 11
ter V. Hill, 42 W. Va. 611; Findley, Mete. 529.
42 W. Va. 372. Missouri.— State v. Peterman, 66
Surety on general bond not liable Mo. App. 257.
for proceeds of sale of real estate, Ohio. — See Swisher v. MeWhinney,
there being nothing in the bond to 64 Ohio St. 343, 60 N. E. 565.
be construed as creating such lia- Pennsylvania. — Blauser v. Diehl,
b'lity. Commonwealth v. American 95 Pa. St. 350.
Bonding & Trust Co., 16 Pa. Super. Compare Hart v. Stribling, 21 Fla.
Ct. 570. 136.
27. Indiana.— Colburn v. State, 47 28. Mattoon v. Cowing, 13 Gray
Ind. 310. (Mass.) 387; McKim v. Morse, 130
Iowa. — Bunce v. Bunce, 69 Iowa Mass. 439.
333. 29. Rush v. State, 19 Ind. App.
523.
^ 263 Suretyship and Guar^vnty. 282
of the approval of the new bond, when the prior surety's liability
ceases as to subsequent acts of the guardian.^'' And the discharge
of one surety releases the co-surety unless he remains a surety by
consent or agreement. ^^
§ 263. Termination of Surety's Liability. — The surety's lia-
bility terminates when the guardian has faithfully discharged his
duties and made an accounting to the proper court and been re-
leased. But the sureties' liability is not discharged by the expira-
tion of the guardianship until a final settlement and proper ac-
counting;"^ nor is the liability extinguished by the death of the
surety, for then his estate is responsible in his place/^ and his
representatives must be made a party to a suit.^* And unless there
is a statute controlling the time to bring suit,^"* the liability of the
surety continues against him and his personal representatives un-
til the statute of limitations, as in other cases, bars the action on
the bond.^^ And the limitation begins to run from the time when
the guardian settles his account in the proper court, and not from
the date of his informal accounting with the ward; the law directs
that it be reckoned from the guardian's discharge.^^ The liability
is limited to what the guardian has legally done with diligence
during his term of office and not for anything done thereafter.^^
Where the statnte requires notice 67 Pac. 1089; Allen v Kelly, 171 N.
to all persons interested to obtain Y. 1, 63 N. E. 52S, rev'g 55 App. Div.
a discharge there must be notice to 454, 67 -N. Y. Supp. 97.
the ward and next of kin. Rice v. 34. Lynch v. Rotan, 39 111. 14.
Watson, 129 Mich. 520, 89 N. W. 336, 35. State v. Hughes, 15 Ind. 104;
8 Dot. Leg. N. 355. Loring v. Alline, 9 Cush. (Mass.)
30. Dempsey v. Fenno, 16 Ark. G8.
491; State v. Page, 62 Ind. 209; 36. Ragland v. Justices, 10 Ga. 65;
Hammond v. Beasley, 15 Lea Bonham v. People, 102 111. 434;
(Tenn.) 618. Goble v. Simeral, 67 Neb. 276, 93 N.
31. Spencer v. Houghton, 68 Col. W. 235; Freedman v. Vallie (Tex.
82; Tyner v. Hamilton, 51 Ind. 250; Civ. App. 1903), 75 S. W. 322.
Frederick v. Moore, 13 B. IMon. Statute of limitation bars suit.
(Ky.) 470. Presley v. Weakley, 135 Ala. 517, 33
32. Yost V. State, 80 Ind. 330; So. 434.
Higgins V. State, 87 Ind. 282. 37. Nunnery v. Day, 64 Miss. 457,
See Johnson v. Johnson, 24 Ky. 1 So. 636; Marlow v. Lacy, 68 Tex.
Law Rep. 16, 68 S. W. 14. 154, 2 S. W. 52.
33. Voris v. State, 47 Ind. 345. 38. Ordinary v. Smith, 55 Ga. 15.
See Zurfluh v. Smith, 135 Cal. 644,
283 Bonds Under Judicial Sanction. §§ 2G4, 2G5
Thus, money paid to the guardian after the ward reaches his ma-
jority, does not make the surety liable for any malfeasance of such
discharged guardian."^
§ 264. When Action Upon the Bond Accrues. — The general
rule is that action cannot be brought upon the bond until the
amount of the guardian's liability has been ascertained by a court
of competent jurisdiction at his final settlement.^" But this gen-
eral rule has been changed in many jurisdictions, and whenever
the condition of the bond is violated, suit may be brought on such
bond and prosecuted to final judgment against the guardian or
sureties on his bond, without first obtaining judgment against the
guardian alone.^^
And the delivery of the property and money to the successor as
required by statute is held not to be a condition precedent to an
action.^^
§ 265. Estoppel by Judgment Against Principal. — ^An order
from the probate court finding the amount due from the guardian
to the ward is conclusive upon the guardian and his sureties on the
bond, and can only be impeached for fraud or mistake.*^ The gen-
39. Chapin v. Livermore, 13 Gray Must be settlement of accounts.
(Mass.) 561; Commonwealth v. Pinnell v. Hinkle, 54 W. Va. 119, 46
Pray 125 Pa. St. 542, 17 Atl. 450. S. E. 171.
40. Georgia. — Forrester v. Vason, 41. Bonham v. People, 102 111.
71 Ga. 49. 434; Wolfe v. State, 59 Miss. 338;
Iowa.— Gillespie v. See, 72 Iowa State v. Slevin, 93 Mo. 253, 6 S. W.
345, 33 N. W. 676. 68; Call v. Ruflin, 1 Call (Va.), 333;
Massaclmsetts.— Long v. Cope- Sage v. Hammonds, 27 Gratt. (Va.)
land, 182 IMass. 332, 65 N. E. 384; 651.
Murray v. Wood, 144 Mass. 195, 10 42. State v. Berger, 72 Mo. App.
N. E. 822. 631.
Nebraska. — Bisbee v. Gleason, 21 43. California. — Zurfluh v. Smith,
Neb. 534, 32 N. W. 578. 135 Cal. 644, 67 Pac. 1089.
New York.— Perkins v. Stimmel, Illinois. — Ryan v. People, 165 111.
114 N. Y. 359, 21 N. E. 729. 143, 46 N. E. 206; Gillett v. Wiley,
Ohio.— See Wegner v. Wiltse, 23 126 111. 310, 19 N. E. 287.
Ohio C. C. R. 302. Indiana. — State ex rel. Favorite v.
Pennsylvania. — Shollenberger's Slanter, 80 Ind. 597.
Appeal, 21 Pa. St. 337. Iowa.— Chase v. Wright, 116 Iowa
Wisconsin.— Kugler v. Prien, 62 555, 90 N. W. 357.
Wis. 248, 22 N. W. 396. Minnesota.— Jacobson y. Ander-
§ 200 Suretyship and Guaranty. 284
erul rule is that the surety is concluded by the judgment against
his principal." However, in some States such judgment is only
conclusive against the guardian, and pritna facie only against the
surety.*^
A settlement with the ward after he reaches his majority, if it
be fair and full, is sufficient to satisfy the bond,*^ though such set-
tlement may be attacked by the sureties.'*^
§ 266. Estoppel by Recitals in the Bond. — Sureties upon a
guardian's bond are bound by the recitals in the instrument, and
are estopped to deny that their principal had in fact been ap-
pointed guardian of the ward.^* Because by executing the bond
the sureties obtain for their principal the possession and control
of the ward's property, and cannot therefore be permitted to es-
cape liability to account for him if necessary, by denying the re-
citals in the bond.^* Although the appointment is irregular, be-
ing made in the wrong county, the principal and sureties are
son, 72 Minn. 426, 75 N. W. 607. Ky. Law Rep. 785, 32 S W. 609; State
>ew York.— Martin v. Hann, 32 v Hull, 53 Miss. 626.
App. Div. 602, 53 N. Y. Supp. 186. 46. Davenport v Olmstead, 43
Wisconsin. — Shepard v. Pebbles, Conn. 67.
38 Wis. 373. 47. State v. Hostes, 61 Mo. 544.
Settlement of account and dis- 48. Arkansas. — Norton v. Miller,
charge of guardian not conclusive. 25 Ark. 108.
See Howe v. White, 162 Ind. 74, 69 Georgia. — Hines v. Mullins, 25 Ga.
N. E. 684. 696.
Annual settlement not conclusive Indiana. — Bray v. State, 78 Ind. 68.
to extent of judgment. Lincoln Maine. — Williamson v. Woodman,
Trust Co. V. Wolff. 91 Mo. App. 133. 73 Me. 163.
Settlement with successor not Maryland. — Fridge v. State, 3 Gill,
conclusive. State v. Berger, 92 Mo. <^ J. 103.
App. 631. Mississippi. — Hauenstein v. Gilles-
44. Botkin v. Kleinschmidt, 21 pie, 73 Miss. 742, 19 So. 673.
Mont. 1, 52 Pac. 563; Deegan v. ?fortli Carolina. — Iredel v. Barbee,
Deegan, 22 Nev. 185, 37 Pac. 360; 9 Ired. L. 230.
Braiden v. Mereer, 44 Ohio St. 339; Ohio.— Shroyer v. Richmond, 16
Commonwealth v. Julius, 173 Pa. St. Ohio St. 455.
322, 34 Atl. 21; Commonwealth v. Estoppel to deny recitals in instru-
Rhoads, 37 Pa. St. 60. ment, see § 59 herein.
See in this connection § 65 herein. 49. Fridge v. State, 3 Gill. & J.
45. Weaver v. Thornton, 63 Ga. (Md.) 103; Shroyer v. Richmond, 16
655; Commonwealth v. Bracken. 17 Ohio St. 455.
285 Bo^Ds Under Judicial Sanction. §§ 267, 269.
estopped by the recitals in' the bond to raise the objections that
the bond is illegal.^*^
§ 267. Joint Guardians. — In case two or more guardians are
jointly appointed for the same ward, and execute a joint bond for
the faithful performance of their trust, each of them is security
upon the bond for the other, and both they and their sureties upon
the bond are responsible for devastavit committed by either.^"^ And
■one of the joint guardians may bring suit against the sureties on
the joint bond for a default of his co-guardian and recover the full
amount of the damages caused by such maladministration, from
the sureties ;^^ and the sureties have their remedy against such
plaintiff or principal, in his individual capacity, for indemnity."
§ 268. Joint Bond Instead of Several. — The bond given by
the guardian will be enforced so far as it is consistent with the
policy of the law, though it does not conform to it. Thus, a guar-
dian's bond securing the estates of two or more minors in joint
form and particularizing the duties to be performed by the guar-
dian, is valid, though not in conformity with the statute.^^ So
where the guardian of several minors gives but one bond, the
sureties cannot escape liability in an action on the bond on the
ground that it is not such a bond as the law requires, in that it is
joint instead of several as to the obligees.^^
§ 269. Extent of Surety's Liability. — Of course the sureties
may be bound to the extent of the penalty. But the recovery on
the bond may so far exceed the amount of the penalty as is neces-
sary to cover interest upon the penalty from the date of the
breach.^^ Because when the surety neglects to discharge the lia-
50. Norton v. Miller, 25 Ark. 108. 54. Ordinary v. Heishon, 42 N. J.
61. Freeman v. Brewster, 93 Ga. L. 15.
€48, 21 S. E. 165. 55. Pursley v. Hayes, 22 Iowa 11;
52. Boyle v. St. John, 28 Hun (N. Deegan v. Deegan, 22 Nev. 185, 37
Y.) 454; Sperb v. McCtoun, 110 N. Y. Pac. 360.
605, 18 N. E. 441. 56. James v. State, 65 Ark. 415, 4
53. Boyle v. St. John, 28 Hun (N. S. W. 937.
Y.) 454; Sperb v. McCoun, 110 N. Y. See Swisher v. MoWhinney, 64
€05, 18 N. E. 441. Ohio St. 343, 60 N. E. 565, as to in-
terest.
§§ 270, 271 Suretyship a^'d Guaranty. 28S
bility against him, it is but reasonable that he should compensate
the obligee for delay by paying legal interest from such date."
The surety on a guardian's bonds to several wards will not be
liable in the aggregate to an amount in excess of the penalty fixed
in the bond and interest from the demand, whether the amount is
recovered jointly or severally.^^
§ 270. Revival of Liability by Surety. — At common law a
verbal acknowledgment is sufiicient to revive a liability barred by
the statute of limitations."^ So where the statute does not deny the
right to revive by a verbal promise, a surety on a guardian's bond
can revive his liability by a verbal promise, that he will pay what-
ever fund is due from the guardian. The duty rests upon a surety
to see that his principal performs the contract, and the guaranty
subsists as a moral obligation after the statute of limitations has
run against the right to enforce it, which obligation will support
a new promise by the surety to answer for the principal's default. ^'^^
§ 271. Receiver's Bond — Liability of Sureties. — There must
be an accounting, settling the receiver's account, before an action
upon his bond can be instituted.^^ After the account is adjudged
and approved by the court, and the receiver is ordered to pay the
fund in his hands into court, or to the person entitled thereto, a
failure to comply with such order renders himself and his sure-
ties liable."^
If, however, the receiver dies and it thus becomes impossible to
pursue the ordinary course against him, then the remedy is against
the sureties on the bond.^^
And a failure to give a surety the notice as to the hearing for an
accounting is held to preclude an action against him on the bond.^*
.57. Brainard v. Jones, 18 N. Y. 35; N. C. 323; Atkinson v. Smith, 89 N.
Wyman v. Robinson, 73 Me. 384. C. 72.
58. United States Fidelity & Guar- 62. Bank v. Creditors, 86 N. C. 323;
anty Co. v. Parker (Wyo. 1912), 121 Ludgater v. Cannell, 3 Man. & Gr.
Pac. 531. 174.
.59. Perkins v. Clieney, 114 Mich. 63. French v. Dauchy, 57 Hun 100,
567, 72 N. W. 595. 10 N. Y. Supp. 468; Weems v. Lath-
60. Perkins v. Cheney, 114 Mich, rop, 42 Tex. 207; Ludgater v. Can-
567, 72 N. W. 595. nell, 3 Man. & Gr. 175.
61. State V. Gibson, 21 Ark. 146; 64. Stratton v. City Trust, Safe De-
French V. Dauchy, 57 Hun 100, 10 N. posit & Surety Co., 86 App. Div. (N.
Y. Supp. 468; Bank v. Creditors, 86 Y.) 551, 83 N. Y. Supp. 780.
287 Bonds Under Judicial Sanction. §§ 272, 273
§ 272. Right of Action Against Surety on .'.Receiver's Bond. —
The liability of sureties on a receiver's bond can generally be en-
forced only by action on the bond in a common law court, where
they can make defense on trial by a jury.^"* So where the creditors
institute proceedings by the common law action of debt to re-
cover their claims and obtain an order for their payment, a mere
summary order to show cause cannot be enforced though no de-
fense was made, as the suit must be tried.^*^ The sureties cannot
be summarily proceeded against by an order of court to show cause,
unless they have a part of the trust fund in their hands, and then
only to the extent of such funds. "'^ Where judgment has been re-
covered against a receiver he is not a necessary party to an action
against his sureties on the bond.*^ The annullment of the appoint-
ment of a receiver who has acted does not release his sureties from
liability.^^ But neither he nor his sureties are liable on his bond
for property not coming under its provisions.™
§ 273. When Surety is Concluded by Decree of Court. — After
due proceedings and full hearing by the court, a decree made
against the receiver is competent evidence both of a breach of the
bond and of the amount, for which the sureties are liable.^^ If
the receiver is entitled to compensation, and the amount is after-
wards ascertained, his sureties may petition the court to have
the amount applied to their indemnity,^" but such amount cannot
be considered until determined.^^ To be concluded by an account-
ing in chancery the surety must have due notice of such litiga-
tion.'^* If the receiver's bond is for the future the surety cannot
65. Thurman v. Morgan, 79 Va. 71. Commonweaith v. Gould, 118
367. Mass. 300.
66. Nutton V. Isaacs, 30 Gratt. See, also, Ward v. State, 111 :Md.
(Va.) 740; Black v. Gentery, 119 N. 528, 75 Atl. 116.
C. 502, 26 S. E. 43. An order directing the payment
67. Atkinson v. Smith, 89 N. C. 72; of money by the receiver cannot be
Bank v. Creditors, 86 N. C. 323; Lied- collaterally attacked. Martin & Co.
enback v. Denklespiel, 11 Lea v. Kirby (Nev. 1911), 117 Pac. 2.
(Tenn.) 297. 72. Brandon v. Brandon, 3 DeG. &
68. Black v. Gentery, 119 N. C. 502, j. 524.
26 S. E. 43. 73. Commonwealth v. Gould, 118
69. Thompson v. Denner, 16 App. Mass. 300.
Div. (N. Y.) 160, 44 N. Y. Supp. 723. 74. Ball v. Chancellor, 47 N. J. L.
70. Ayers v. Hite, 97 Va. 466, 34 S. 125.
E. 44.
§§ 274, 275 Suretyship and Guaranty. 288
be made liable for the past acts for which he has not covenanted.^^
Sureties are not liable for any defaults or misconduct of the re-
ceiver prior to the execution of the bond where the undertaking
is that the receiver shall " henceforth " faithfully discharge his
duties.'^
§ 274. Funds Coming Into the Hands of the Receiver. —
Where funds have been paid to a receiver within the scope of his
duties, his sureties are liable for the misappropriation of such
funds. Thus, the receiver's omission to pay to himself as receiver
money which he had borrowed of the company for which he is re-
ceiver before his appointment, is a breach of his bond, for which
his sureties are liable.^^ So where a receiver collects notes a failure
to accomit makes his sureties liable for the amount collected.^*
Whenever the money received cannot be recovered back, his sure^
ties are liable for his misconduct. ^^
§ 275. Giving a New^ Bond. — By giving a new bond it does
not necessarily discharge the sureties on the prior bond. So an or-
der of court made at the instance of one of the parties to the ac-
tion for which a receiver is appointed, requiring a new bond, in
the same sum and condition of his existing bond, will not operate
to discharge the sureties on the old bond. It is an additional or
cumulative bond, and is not substituted for the first.^"
§ 276. Extent of Surety's Liability. — The extent of the lia-
bility of a surety of a receiver can only be ascertained by the terms
75. Thompson v. MacGregor, 81 N. for losses sustained through errors
Y. 592. of judgment on the receiver's part
76. Rochester v. Randall, 105 Mass. in managing the property of the es-
295; Bissell v. Saxton, 66 N. Y. 60; tate, both are chargeable for that
Vivian v. Otis, 24 Wis. 518. part of the estate which came into
77. Commonwealth v. Gould, 118 the hands of the receiver and the
Mass. 300. proceeds of such part thereof as he
78. Weems v. Lathrop, 42 Tex. sold. Matter of Federal Union
207. Surety Co., 73 Misc. R. (N. Y.) 28,
78. Wilde v. Baker, 14 Allen 132 N. Y. Supp. 196.
(Mass.) 349. 80. Stewart v. Johnston, 87 Ga.
Though neither the receiver nor 97^ 13 g, g 258.
the surety on his bond are liable
289 Bonds Under Judicial Sanction. § 277
of the bond.*^ Thus, where the engagement of a surety is for the
futurq, he cannot be held liable for the past as to which he has not
<jovenanted.^^ As between the principal and the creditors of the
fund which it is the receiver's duty to pay according to the order
of the court, if he has been heard, he is bound by the adjudication.
As between the surety and such creditors, it is not the receiver's
duty to pay according to an order made without the surety's knowl-
edge as to which he has not been heard and which is not against
him a binding adjudication. Hence, a judgment against the prin-
cipal cannot be binding upon the surety only as evidence unless
by the terms of the bond the surety contracts to be bound by the
adjudication against his principal.^^
Whether a surety is liable for interest on the penalty after
breach is in the discretion of the court upon the consideration of all
the facts and circumstances.^* The surety is liable for the costs for
which the receiver is liable.*^
§ 277. Liability of Surety on Assignee's Bond. — The liability
of a surety on an assignee's bond will depend upon the terms of the
bond, and will not be extended by construction.*^ And when the
bond is a good common-law bond, and not contrary to statute or
public policy, it will be valid against the assignee and his sure-
ties,*' though not wholly complying with the statute. The sureties
are liable for the proper administration of the funds which come
81. Ross V. Williams, 11 Heisk. ner, 82 Kan. 691, 109 Pac. 394.
(Tenn.) 410. 84. State v. Blakemore, 7 Heisk.
82. Bissell v. Saxton, 66 N. Y. 60; (Tenn.) 657; In re Herrlck's Minors,
"United States v. Giles, 9 Cranch (U. 3 Ir. Ch. (N. S.) 183.
S.) 212, 3 L. Ed. 708; Farrar v. See, also, Dawson v. Raynes, 2
United States, 5 Pet. (U. S.) 373, 8 Russ. 466.
L. Ed. 159. 85. Mannsell v. Egan, 8 Ir. Eq. 372,
83. Thompson v. MacGregor, 81 N. 9 Ir. Eq. 283.
Y. 592. 86. Moulding v. Wilhartz, 67 111.
See, also, Scofield v. Churchill, 72 App. 659, 169 111. 422, 48 N. E. 189;
N. Y. 565. Ward v. Stahl, 81 N. Y. 406; Van
Failure to comply with order of Slyke v. Bush, 123 N. Y. 47, 25 N. E.
court to pay over money held a 196.
breach of bond rendering sureties 87, Andrews v. Ford, 106 Ala. 173,
liable. Northrup Nat. Bank v. Var- 17 So. 446.
19
§§ 278, 280 Suretyship and Guaranty. 290
into the hands of the assignee ;^^ their liability is the same as the
assignee in the scope of his duties.
§ 278. Estoppel of Surety. — The sureties on the bond of an
ass.ignee are concluded by the finding of the court as to the amount
to be accounted for by the receiver.'"^ The final decree of the court
upon a full hearing concludes the sureties on the assig-nee's bond,
as to a collateral attack,^' but the surety may appeal from the order
of the court, but such order cannot be attacked collaterally.^^
§ 279. Giving New Bond. — If the court upon satisfactory
grounds requires a new bond to be given by the assignee, this does
not release the sureties on the old bond. Thus, a court finding the
assignee in insolvency proceedings is disposing of the funds of the
estate without the order of the court, and being satisfied that the
sureties on the assignee's bond are insolvent, may require an ad-
ditional bond to be given, which will only be cumulative.®'^ And
when the new bond requires that the assignee shall obey the orders
of the court " previously and subsequently " entered, the sureties
on the new bond are liable upon the assignee's failure to obey an
order of the court requiring him to account for funds of the estate
which he had paid out without authority before the new bond was
executed, though this proviso is not a condition of the statutory
bond.'"
§ 280. Default of Assignee. — A failure to comply with the or-
der of the court makes the assignee and his sureties liable upon the
bond.®^ A. mere failure of a creditor to use due diligence in col-
lecting a claim from the assignee cannot relieve the surety y"^ even
if the assignee has become insolvent during the delay of the credi-
88. Van Slyke v. Bush, 123 N. Y. 92. Moulding v. Wilhartz, 169 111.
47, 25 N. E. 196. 422, 48 N. E. 189.
89. Patterson's Appeal, 48 Pa. St. 93. Moulding v. Wilhartz, 169 111.
342. 422, 48 N. E. 189.
90. Moulding v. Wilhartz, 169 111. 94, Moulding v. Wilhartz, 169 111.
422, 48 N. E. 189; Little v. Common- 422, 48 N. E. 189.
wealth, 48 Pa. St. 337. 95. Oppenheimer v. Hamrick, 86
91. Steele's Case, 34 N. J. Eq. 199; Iowa 584, 53 N. W. 312.
Garner v. Tisinger, 46 Ohio St. 56. 96. Taylor v. State, 73 Md. 208.
291 Bonds Under Judicial Sanction. § 281
tor, the surety is not released.^^ If a judgment declares an assign-
ment void as to certain creditors, then they cannot hold the sure-
ties of the assignee liable for such funds as are covered by tho
judgment, because sureties can be charged only when the case is
brought within the terms of their contract, which cannot be ex-
tended by construction to embrace purposes and objects not con-
templated by the parties.^^
§ 281. Discharge of Surety. — An assignee and his sureties can
be discharged judicially only upon a regular proceeding for an
accounting, and the payment of the fund according to the final or-
der of the court,^^ although the creditors have consented to a com-
position, and the accounting may be wholly formal.^ Under the
Ohio statute the sureties on the bond of an assignee who has failed
to pay the fund over as ordered are not joint debtors. So a com-
promise to release one surety will not discharge the others. They
will be liable for their proportionate share of the debt against the
assignee.^
97. People v. White, 28 Hun (N. 13; In ro Loventhal, 10 Daly (N. Y.)
Y.) 289. 14.
98. People v. Chalmers, 60 N. Y. 1. In re Yeager, 10 Daly (N. Y.) 7;
154, distinguishing People v. Vilas, In re Dryer, 10 Daly (N. Y.) 8.
36 N. Y. 459. 2. Walsh v. Miller, 51 Ohio St. 462,
99. In re Merwin, 10 Daly (N, Y.) 38 N. E. 381.
§ 282 SUEETYSHIP AND GuAEANTY. 292
CHAPTER XI.
BONDS OF PRIVATE OFFICERS AND AGENTS.
Section 282. Duration of Surety's Liability.
283. Continuing Liability of Surety.
284. Restriction of Surety's Liability by Recitals in the Bond.
285. As to the Scope of the Officer's Employment.
286. Increase of Capital Stock of Corporation.
287. Discharge of Surety by Fraud.
287a. Bond and Application Construed Together — Effect of State-
ments in Application.
288. Bond Covering Prior and Subsequent Defaults.
289. Principal His Own Successor.
290. Continuing Principal in Office After Known Defaults.
291. Delinquency of Obligee.
292. Failure to Discharge Delinquents.
293. Failure to Notify Surety of Default.
294. Covenant not to Sue.
295. Accord and Satisfaction.
296. Notice of Surety's Withdrawal.
297. Discharge by Acts of Obligee.
297a. Departure from Terms of Contract.
298. Action on the Bond.
299. Sureties Concluded by Recitals in a Bond.
300. Liability for Loss of Money.
Sec. 282, Duration of Surety's Liability. — A surety's liability
on a private official bond is generally limited to a certain time,
after which he is not liable for defaults of the principal. Thus,
when the bond is an annual one, the obligors are only bound for de-
faults that occur during the year for which the bond was given.
And even in cases where the officer is authorized to hold over his
term and until his successor is elected and qualified, the liability
on the official bond is not extended beyond the duration of the term.
And where an officer is chosen for a term of limited duration, and
a bond for the faithful performance of his duties is given, the pre-
sumption is that the sureties only contracted for faithfulness of the
officer during that time; and the obligation of the sureties is not
extended by the mere fact that such officer is re-elected, or for any
reason holds over the term.^
1. Connecticut. — Walch v. Sey- Illinois. — People v. Toomey, 122
mour. 28 Conn. 387. 111. 308, 13 N. E. 521.
293 Bonds of Private Officers and Agents. §§ 283, 284
And where the appointment of an agent of a corporation is tem-
porary, and a right to revoke the appointment being reserved, and
no time specified for its duration, the liability of the surety contin-
ues only until the appointment is revoked.^ Where two corpora-
tions become consolidated by law, the surety on the bond before con-
solidation is liable for a breach committed after the amalgamation
of the two corporations.'
It is a general rule, however, that a surety is not liable for past
defaults of his principal.*
§ 283. Continuing Liability of Surety. — Many bonds are
drawn binding the surety during the time of the principal's con-
tinuance in office and until his successor is elected and qualified.
But such bond does not bind the surety beyond the period of his
first election and such further time as is reasonably sufficient for
the election and qualification of the principal's successor, the office
being by statute an annual one. The principal's re-election from
time to time does not charge the sureties ; and the statutory pro-
vision that the principal when elected shall hold his office until
another is chosen and qualified in his stead, does not extend the
surety's liability to subseq^uent elections of the same principal.^
§ 284. Restriction of Surety's Liability by Recitals in the
Bond. — The liability of the sureties may be restricted by recitals
Indiana. — Rancy v. The Governor, 2 Mete. (Mass.) 522; Exeter Bank v.
4 Blackf. (Ind.) 2. Rogers, 7 N. H. 21.
Iowa. — Wappello v. Bigham, 10 Liability limited to a fixed time,
Iowa 39. see § 70 herein.
Kansas. — McMulIen v. Winfield 2. Mobile, etc., R. R. Co. v. Brewer,
Building & Loan Ass'n, 64 Kan. 298, 76 Ala. 135.
67 Pac. 892; Life Association v. 3. Eastern, etc., R. R. Co. v. Coch-
Lemke, 40 Kan. 661, 20 Pac. 512. rane, 23 L. J. (N. S.) 61.
Missouri. — North St. Louis Build- 4. Goldberg v. Sisseton Loan &
ing & Loan Ass'n v. Obert, 169 Mo. Title Co., 24 S. D. 49, 123 N. W. 266.
507, 69 S. W. 1044. See, also, § 69 herein, where this
Pennsylvania. — Manufacturers, question is considered,
etc., Co. V. Odd Fellows Ass'n, 48 Pa. 5. Lexington, etc., R. R. Co. v. El-
St. 446. well, 8 Allen (Mass.) 371; Middle-
Tennessee. — Cincinnati, etc., R. H. sex Mfg. Co. v. Lawrence, 1 Allen
Co. V. Morrell, 11 Heisk. 715. (Mass.) 339.
Compare Amherst Bank v. Root, See §§ 70, 71, herein, where this
question is considered.
§ 285 SUKETYSIIIP AND GUARANTY. 294:
in the terra of office in the bond itself,^ So where it appears by the
records of a corporation that the office by the regulation of the cor-
poration is an annual one, the bond should be restricted, which will
control the surety's liability.'' )So when the recitals in a bond are
that one has been appointed to an office for a limited time, it will
restrict the liability of the sureties.^ Where the bond is condi-
tioned against any loss which the employer may sustain " by any
act of fraud or dishonesty," the liability of the surety is limited to
losses of such a character.^ But where the bond of an em-
ployee Avas conditioned against any loss of the employer result-
ing from " the dishonesty or any act of fraud amounting to lar-
ceny or embezzlement " on the part of the employee the surety
company was held liable for losses through dishonest acts of such
employee though they did not amount to larceny or embezzlement.^''
§ 285. As to the Scope of the Officer's Employment. — A
surety cannot be held bound for a longer time than that limited by
his undertaking, and such undertaking as against the surety is to
be strictly construed. ^^ The surety does not undertake to be liable
for anything beyond the letter of his contract, and is only liable
within its terms. ^^ But, whether the principal is acting within the
scope of his employment or not, his sureties are liable, provided the
default was a breach of the condition of his bond. Thus, the sure-
ties on a bond of a bank messenger are liable for moneys stolen
from the bank by the messenger, whether he was acting within the
scope of his employment or not, as the theft was a breach of the
condition of his bond, conditioned to conduct himself honestly and
faithfully.^^ So, under like condition of bond the sureties are lia-
6. Arlington v. Merricke, 2 Sand. Surety Co. v. Lee, 204 111. 69, 68 N.
411; Liverpool Water Works v. At- E. 485, affirming 107 111. App. 263.
kinson, 6 East 507, 11. Mulikin v. State, 7 Blackf.
As to effect of recitals in bond, see (Ind.) 77.
§§ 59 et seq. 12. Detroit Sav. Bank v. Ziegler, 49
7. Dedham Bank v. Chickering, 3 Mich. 157, 13 N. W. 496; Dr. Koch
Pick. (Mass.) 335. Vegetable Tea Co. v. Gates, 43 Wash.
8. Lexington, etc., R. R. Co. v. El- 478, 86 Pac. 624.
■well, 8 Allen (Mass.) 371. As to contract being strictly con-
9. United States Fidelity & Guar- strued, see §§ 66 et seq., herein,
anty Co. v. Merkly, 23 Ky. Law Rep. 13. German Am. Bank v. Uruth, 87
1570, 65 S. W. 614. Pa. St. 419.
10. City Trust, Safe Deposit &
295' Bonds of Private Opficees and Agents. § 285
ble if a cashier transcends the known powers of his office by chang-
ing the securities of the bank without its knowledge and losses ac-
crue by the abuse of his trust.^* So, also, the appropriation by the
bookkeeper of the bank's money, and making fraudulent entries to
avoid detection is a breach of the bond conditioned for his honesty,
and the sureties are liable/^
And where the bond was to secure the faithful performance of
the duties of an official in respect to funds received by him for in-
vestment there was held to be a breach of the bond where he loaned
a part of such funds to himself upon securities which were insuf-
ficient.-^^ But if the sureties sign a bond for a specific business,
they are not liable for the iprincipal's defaults in another business
entirely foreign to their undertaking,"
tSo where a person held two positions, one as treasurer of a com-
pany and another as cashier of a bank, a bond given to secure the
company against any embezzlement of its funds by its treasurer
was held not to cover a misappropriation of the funds of the bank
by its cashier.^*
While the liability of a surety is not to be extended by implica-
tion beyond the terms of the contract by which his responsibility is
to be measured, yet a bond constituting a contract must have such
construction given to it as to carry out the intention of the parties
thereto, and in this respect there is no difEerence between such con-
tract and any other/^ And it is deci4ed that the provisions of the
14. Barrington v. Bank, 14 Serg. 19, United States. — Magee v. Ins.
& R. (Pa.) 405. Co., 92 U. S. 93, 23 L. Ed. 699; Minor
15. Rochester City Bank v. El- v. Bank, 1 Pet. 46, 7 L. Ed. 47.
wood, 21 N. Y. 88; Minor v. Bank, 1 Maryland. — Engles v. Ins. Co., 46
Pet. (U. S.) 46, 7 L. Ed. 47; United Md. 322; Strawbridge v. Railroad
States V. Boyd, 15 Pet. (U. S.) 187, Co,. 14 Md. 360.
10 L. Ed. 706. Massachusetts. — Rollstone Nat.
16. Catholic University of America Bank v. Carleton, 136 Mass. 226.
V. Morse, 32 App. D. C. 195, holding, Michigan. — Detroit Sav. Bank v.
however, that the sureties would be Ziegler, 49 Mich. 157, 13 N. W. 496.
released where the obligee subse- New York. — Rochester City Bank
quently ratified his acts by accepting v. Elwood, 21 N. Y. 88.
such securities and others. PennsylTania. — German Am. Bank
17. Blair v. Ins. Co., 10 Mo. 559. v. Auth, 87 Pa. St. 419; Barrington v.
18. Northwestern Townsite Co. v. Bank, 14 Serg. & R. 405.
Fidelity & Deposit Co. of Maryland, England. — Melville v. Dodge, 6 M.
180 Fed. 702, 104 C. C. A. 554. G. & S. 450.
§ 286 SUEETYSHIP AND GUARANTY. 296
statutes, in a statutory bond, will not be read into the bond, there-
by adding new terms to it.^"
§ 286. Increase of Capital Stock of Corporation. — It is the
established rule of law that a party to a contract is not bound be-
yond the extent of his engagement, which appears from the terms
of the contract and the nature of the transaction to have been in
his contemplation at the time of entering into it, and that his lia-
bility cannot without his consent be extended or enlarged either by
the obligee or by the operation of law.^^
So the sureties on a cashier's bond, in which they undertake to
save the bank harmless from every loss that may arise from the
cashier's mistakes as well as from losses arising from his fraud,
inattention or negligence in the performance of his duties, are ex-
onerated by the increase of the capital stock of the bank, after the
making of the bond, for liability for acts of the cashier after the
additional capital had been paid in, because it increases the risk
for greater losses that may occur through malfeasance of the
cashier.^^ But this doctrine is not accepted by all the courts. Thus,
it is held that the sureties are not released by the increase of capi-
tal stock, as it does not increase the liability of the sureties or the
duties of the principal.^^ And so the increase of the capital stock
by virtue of a statute passed after the making of the cashier's bond,
will not discharge the sureties on such bond.^* The reason for this
last rule is that there is no change in the office ; that the duties of
the office remain the same, and that the increase of business is
fairly contemplated by the bond looking at the character of the
position which the principal holds.^^ Thus, the sureties on a bond
20. Howard Co. v. Hill, 88 Md. 111. (Del.) 90. In this case the bond was
Compare State v. Rubber Mfg. Co., not conditioned against losses occa-
150 Mo. 181. sioned by the cashier's mistake.
21. Miller v. Stewart, 9 Wheat. (U. See Lionberger v. Kieger, 88 Mo.
S.) 680, 702, 6 L. Ed. 189; North- 160; Morris Canal Co. v. Van Vorst,
western Railway Co. v. Whinary, 10 21 N. J. L. 100.
Exch. 77; Bamford v. lies, 3 Exch. 24. Morris Canal v. Van Vorst, 21
280; Banor v. Macdonald, 3 H. L. N. J. L. 100; Lionberger v. Krieger,
Cas. 226. 88 Mo. 160.
22. Grocers Bank v. Kingman, 16 25. Strawbridge v. Railroad Co.,
Gray (Mass.) 473. 14 Md. 360; Rollstone Nat. Dank v.
23. Bank v. Wollaston, 3 Harr. Carleton, 136 Mass. 226.
297 Bonds of Private Ot-ficeks and Agents. § 2.ST
of the principal whose obligation is to perform all the duties,
of a ticket agent for a railroad, embracing those which are or
may be imposed upon him under the present appointment or any
future appointment, are not released because, after his ap-
pointment, the capital stock of the corporation is increased.^^
§ 287. Discharge of Surety by Fr.aud. — Persons asked to be-
come sureties on a bond for the good conduct and fidelity of an
officer have the right to be treated with perfect good faith. If the
corporation knows of a secret fact materially increasing the risk
of the surety, the surety is entitled to have the fact disclosed to
him, an opportunity being present to do so. If the surety is de-
ceived by misrepresentation and concealment by the corporation,
or obligee, he will be released.^^ If the proposed surety in a bond
for the conduct of an employee makes inquiry of the proposed
obligee as to the previous conduct of the employee, such obligee is
bound to make full disclosure of all material facts within his
knowledge bearing on the risk, and if he fails to do so or knowingly
makes, in response to the inquiry, false representations as to such
facts, or does so ignorantly, but under such circumstances as would
naturally lead the inquirer to believe the representations to be
based on an investigation, and the proposed surety is thereby in-
duced to sign the bond, he may avoid liability thereon on the
ground of fraud.^^ To accept a surety known to be acting upon a
belief that there are no unusual circumstances by which his risk
will be materially increased while the party thus accepting knows
26. Eastern R. R. Co. v. Loring, or negligence in the performance of
136 Mass. 381. In comparing this his duties. " That decision is not
case with Grocers Bank v. Kingman, authority for the present case." See,
16 Gray (Mass.) 473, the court says also, Strawbridge v. Railroad Co., 14
there is no close analogy between Md. 360.
the duties and responsibilities of a 27. Maltby's Case, 1 Dow. P. Cas.
cashier of a bank and those of a 294; Graves v. Bank, 10 Bush. (Ky.)
ticket seller of a railroad company. 23.
The former is more directly affected 28. Brillion Lumber Co. v. Bar-
by an increase of the capital stock nard, 131 Wis. 284, 111 N. W. 483.
of the corporation than the latter. Failure to give truthful reply to
Moreover, in that case the sureties' inquiry in a material matter releases
were bound for losses that might surety. Frank Feho Brewing Co. v.
arise from the cashier's mistakes, as Mullican, 23 Ky. Law Rep. 2100, 66
well as from his fraud, inattention S. W. 627.
§ 287a Suretyship and Guaranty. 298
that there are such circumstances, will release the surety, if the
obligee has a suitable opportunity to make such disclosure. ^^ Thus,
where a bank fraudulently conceals that a teller was a defaulter,
and thereby procures persons to go on his bond, such sureties are
not liable for subsequent defaults.^'' But if the sureties are mis-
led by the principal, and the obligee knows nothing of the fraud
perpetrated upon the sureties, they will not be released.^^
It is held by some courts that a mere concealment by the obligee
will not release the surety."^ But, in any case, the obligee is only
bound to give information of such facts as are absolutely known.
He is not bound to disclose mere rumors.^^
§ 287a. Bond and Application Construed Together — Effect of
Statements in Application. — The principle controlling in fire and
life insurance that where statements and representations have
been used by the insured as the basis of the insurance, and by the
terms of the policy issued and accepted, said statements are made
a part of the policy itself, any material false and fraudulent state-
ment made by the insured will avoid the policy, has been applied
in the case of bonds so issued by a fidelity company upon written
applications guarantying the faithful performance of duties by a
bank or other official. In such a case the bond and the statements
so made form the contract and must be construed together to de-
termine the rights and liabilities of the parties thereto. ISTor in
such a case can a party claim the benefit of the bond and at the
same time repudiate the statements so made on the ground of
want of authority on the part of the person making them.^*
So where a bond was issued by a surety company and accepted
29. Franklin Bank v. Cooper, 36 32. Atlantic, etc., Tel. Co. v.
Me. 179; Dinsmore v. Tidhall, 34 Barnes, 64 N. Y. 385; Aetna Life Ins.
Ohio St. 411; Aetna Life Ins. Co. v. Co. v. Mabbett, 18 Wis. 668.
Mabbett, 18 Wis. 668. 33. State v. Atherton, 40 Mo. 209.
30. Wayne v. Bank, 52 Pa. St. 343. 34. Willoughby v. Fidelity & De-
31. Magee v. Insurance Co., 92 U. posit Co., 16 Okla. 546, 85 Pac. 713,
S. 93, 23 L. Ed. 699; Bostwick v. Van 7 L. R. A. (N. S.) 548, affirmed 205
Voorhis, 91 N. Y. 353; Western, etc., U. S. 537, 27 Sup. Ct. 790, 51 L. Ed.
Ins. Co. V. Clinton, 66 N. Y. 326; 920.
Casoni v. Jerome, 58 N. Y. 315; Mc- As to surety bond and application
Williams v. Mason, 31 N. Y. 294; being construed together, see § 445
Atlas Bank v. Brownell, 9 R. I. 168. herein.
299 Bonds of Private Officers and Agents. § 288
bj a bank, for the faithful discharge of the duties of its presi-
dent, upon the faith of certain statements and representations in
writing, made by the assistant cashier of the bank, relative to the
conduct, employment, duties and accounts of the presi-
dent, and such statements so made by the assistant cashier were
by the terms of the bond made a part thereof, it was decided that
the bond and the statements together formed the contract, and
must be construed together and upon their joint construction, or
upon their construction as a whole, must depend the rights and
liabilities of the parties thereto.^^
§ 288. Bond Covering Prior and Subsequent Defaults. — If
the sureties become liable for prior as well as future defaults of
the principal, they will not be liable if their names were procured
by the obligee with fraudulent intent who knew that the principal
had defaulted in the past of which the sureties were ignorant, with
an opportunity to communicate such defaults. ^^ Misrepresenta-
tion or concealment of any material part of the transaction will
avoid the contract of suretyship."
Still, as a matter of law, it is not a fraud upon the sureties that
the principal was behind in his accounts at the time he gave his
bond of indemnity, and no notice of such default was communi-
cated to the sureties.^^ Because intent is the gist of the fraud, and
this must be made to appear on the part of the obligee."^ So a
surety on the bond of a cashier of a bank is not discharged by
the mere fact that the cashier was, at the time the bond was made,
35. Willoughby v. Fidelity & De- See in tiiis connection §§ 69, 70, 71,
posit Co. of I\Iaryland, 16 Okla. 546, herein.
85 Pac. 713, holding also that in an 37. Franklin Bank v. Stevens, 39
action on the bond by the receiver Me. 532.
of the bank he could not be heard to 38, Eoper v. Sangamon Lodge, 91
question the authority of the assist- 111. 518; Taft v. Gifford, 13 Met.
ant cashier to bind the bank by his (Mass.) 187; Watertown Fire Ins.
statements and at the same time be Co. v. Simmons, 131 Mass. 85; Pitts-
^liowed to recover on the bond on burg, etc., R. R. Co. v. Shaeffer, 59
the strength of statements made by Pa. St. 350; Wilmington, etc., R. R.
him. Co. V. Ling, 18 S. C. 116.
36. Franklin Bank v. Cooper, 36 39. Roper v. Sangamon Lodsre, 91
Me. 179, 29 Me. 542; Franklin Bank 111. 518; Atlas Bank v. Brownell, 9
V. Stevens, 39 Me. 532. R. I. 168.
§§ 289, 291 Suretyship and Guaeanty. 300
a defaulter. Nor will the negligence of the bank to ascertain that
fact discharge the surety/"
§ 289. Principal His Own Successor. — When the principal
becomes his own successor, and at the commencement of the sec-
ond term makes a report of moneys in his hands and gives a new
bond for paying over such moneys, his sureties on the second bond
are liable for the amount so reported, though he did not, in fact,
have that amount/^ They are liable for any amount which ap-
pears to have been in the hands of the principal at the end of the
preceding official term as set forth in his report.*^
§ 290. Continuing Principal in Office After Known Defaults.
— Continuing the principal in office after his defaults are known,
without notice to the surety is held not to discharge him, no fraud
or dishonesty being shown on the part of the employer/^ Because
it is the business of the surety to see that his principal- performs
the duty which the surety has guaranteed, and not the obligee/*
So where the agent is bound by by-laws of a corporation to render
his accounts monthly, but fails to do so for several months, and
his sureties are not informed of the defaults by the obligee for
some time thereafter, it does not discharge the sureties/^
^ 291. Delinquency of Obligee. — The obligee owes no duty
of active diligence to take care of the interest of the surety. It
is the business of the surety to see that his principal performs the
duty which he has guaranteed, and not that of the obligee, or
40. Home Ins. Co. v. Halway, 55 44. Tapley v. Martin, 116 Mass.
Towa 571, 8 N. W. 457; Tapley v. 275; Wright v. Simpson, 6 Ves. 714.
Martin, 116 Mass. 275; Bowne v. 45. Kentucky. — Taylor v. Bank, 2
Bank, 45 N. J. L. 361; Wayne v. J. J. Marsh. 564.
Bank, 52 Pa. St. 343. Massachusetts. — Watertown Fire
41. Roper v. Sangamon Lodge, 91 Ins. Co. v. Simmons, 131 Mass. 85;
III. 518. Inhabitants of Town of Winthrop v.
42. Morley v. Metamora, 78 111. Soule, 175 Mass. 400, 56 N. E. 575.
294. New York. — McKenzie v. Ward,
4S. Watertown Fire Ins. Co. v. 58 N. H. 541.
Simmons, 131 Mass. 85; Atlantic, Ohio. — Bush v. Critchfield, 4 Ohio
ptc, Tel. Co. V. Barnes, 64 N. Y. 736.
285. Pennsylvania, — Pittsburg, etc., R.
R. Co. V. Shaffer, 59 Pa. St. 350.
■301 BoNi>s OF Private Officers and Agents. § 292
creditor/^ The surety is bound to inquire himself and cannot
complain that the obligee does not notily him of the state of the
accounts. Mere inaction of the obligee will not discbarge the
surety unless it amounts to a fraud or concealment.*' Nor will
the fact that the obligee neglects to ascertain that the principal
was a defaulter before giving the bond, discharge the surety.**
A^or will the surety on a bond be released by the fact that a
careful examination of the books of an officer of a corporation,
which books were open to their inspection, might have disclosed
the default.*^
§ 292. Failure to Discharge Delinquents. — Sureties are not
discharged from subsequent liability by the omission on the part
of the obligee to notify them of the default of their principal
known to the obligee, and a continuance of the employment after
such default, in the absence of evidence of fraud and dishonesty
on the part of the principal.^'* If the sureties are released by
acts of the obligee in any cases, they are still bound for prior de-
faults of their principal.^^
As a general rule sureties are not relieved from liability for
moneys for which the principal has failed to account, where it
does not appear that the moneys were embezzled or the obligee
wrongfully and fraudulently concealed from the sureties the
neglect and irregularity of the officer in the performance of his
46. Atlas Bank v. Anthony, 18 49. McMullen v. Wingfield Build-
Pick. (Mass.) 238. ing & Loan Ass'n, 64 Kan. 298, 67
47. Kentncky. — Batchelor v. Bank, Pac. 892.
78 Ky. 435. 50. Gradle v. Hoffman, 105 111. 147;
Massachusetts. — Watertown Fire Atlantic, etc., Tel. Co. v. Barnes, 64
Ins. Co. V. Simmons, 131 Mass. 85; N. Y. 385; City of Harrisburg v.
Amherst Bank v. Root, 2 Mete. 522. Guiles, 192 Pa. St. 191, 44 Atl. 48;
New Jersey. — Morris Canal v. Van Pittsburg, etc., R. R. Co. v. Shaeffer,
Vorst, 21 N. J. L. 100. 59 Pa. St. 350.
Fennsylvania. — Bayne v. Bank, 52 Compare Moses v. United States,
Pa. St. 343. 166 U. S. 571, 17 Sup. Ct. 682. 41 L.
Rhode Island.— Atlas Bank v. Ed. 1119; Phillips v. Foxall, L. R. 7
Brownell, 9 R. I. 168. Q. B. 666; Sanderson v. Aston, L. R.
England.— McTaggart v. Watson, 8 Exch. 73; Burgess v. Eve, L. R.
3 CI. & F. 536. 13 Eq. 450; Montague v. Tidcombe, 2
48. Tapley v. Martin, 116 Mass. Vern. 518.
275; Bowne v. Bank, 45 N. J. L. 360; 51. State Bank v. Chetwood, 8 N.
Wryne v. Bank, 52 Pa. St. 343. J. L. 1.
§ 293 SUKETYSIIIP AND GuAKANTY. 302-
official duties.^^ But where the principal embezzles the money of
the obligee who fraudulently conceals the fact from the sureties,
then they are released and not liable for subsequent defalcations.^^
§ 293. Failure to Notify Surety of Default. — The sureties on
a bond are not entitled to notice of the principal s default, nor
need any demand be made upon them belore action brought on
the bond."^ Mere laches of the obligee unaccompanied by fraud
will not discharge the sureties. So, where the obligee delays for
a long time to notify the sureties of the principal's default, or to
prosecute on the bond it will not discharge the sureties.^^
To avoid a bond of a cashier on the ground of fraud on the part
of the bank or its directors, a fraudulent concealment of some-
thing material for the surety to know must be shown.^® The ob-
ject of such bond is to guarantee the bank for the faithful per-
formance of the cashier's duty, and the obligation is not to be
affected by the neglect of the bank, and such negligence will not
discharge the surety." And before a bond in such case can be
avoided, fraud and bad faith which has misled the sureties to
their damage, must be brought home to the obligee by clear and
decisive evidence."^ The acceptance of the resignation of the prin-
cipal and election of his successor without notice to the sureties
52. Iowa, — Independent School Ass'n v. Smith, 70 Tex. 168, 7 S. W.
Dist. of Sioux City v. Hubbard, 110 793.
Iowa 58, 81 N. W. 241. 53. Bolz v. Stuhl, 4 Pa. Super. Ct.
Kentucky.— Wade v. City of Mt. 52.
Sterling, 18 Ky. Law Rep. 377, 33 S. 54. Grocers Bank v. Kingman, 16
W. 1113. Gray (Mass.) 473.
Massachnsetts. — Tapley v. Martin, As to notice of default, see § 144a
116 Mass. 275. herein.
Minnesota. — County of Pine v. 55. Morris Canal v. Van Vorst, 21
Willard, 39 Minn. 125, 39 N. W. 71. N. J. L. 100; Pittsburg, etc., R. R.
New York.— Bostwick V. Van Voor- Co. v. Shaeffer, 59 Pa. St. 359; Wil-
his, 91 N. Y. 353. mington, etc., R. R. Co. v. Ling, 18
PennsylTania. — Harrisburg v. S. C. 539.
Guiles, 192 Pa. St. 191, 44 Atl. 48; 56. Atlas Bank v. Brownell, 9 R.
Farmers & Drovers' Nat. Bank v. I. 168.
Rraden, 145 Pa. St. 473, 22 Atl. 1045; 57. Tapley v. Martin, 116 Mass.
Home Ins. Co. v. Gow, 59 Pa. St. 275.
685; Boreland v. Washington County 58. Bostwick v. Van Voorhis, 91 N.
20 Pa. St. 1^^0. Y. 353.
Texas. — Screwmen's Benevolent
303 Bonds of Private Officers and Agents. §§ 294, 29&
does not relieve them from liability for his defaults before resigna-
tion.°^
If there is a provision in the bond which requires the obligee to
give notice of the default of the principal, the giving of such notice
is a condition precedent.*"
§ 294. Covenant Not to Sue. — A covenant not to sue one of
several sureties will not discharge the others. The release of one
of joint and several obligors is a release of all, but a covenant not
to sue one of several obligors can never have the effect of a release,
except to the one to whom it is given.*'^ So, where one of several
obligors or sureties is given an instrument by the obligee coven-
anting not to sue him for default of his principal, it operates as
an absolute release and acquittance of his liability on his prin-
cipal's bond, and is a covenant not to sue ; but none of the other
joint and several sureties is released.^^
§ 295. Accord and Satisfaction. — The principal may settle his
obligation by accord and satisfaction, and the surety thereby be re-
leased. Thus, when the principal gives his note for settlement
of the obligation, which is accepted as an absolute payment by the
obligee, the surety held by the obligation is released.*^ Because
a note of the principal given and received in satisfaction by ex-
press agreement will be considered a discharge of the original con-
tract.^'* And so an executed parol agreement may abrogate a bond
or sealed instrument in many jurisdictions.*^
§ 296. Notice of Surety's Withdrawal — A surety can with-
draw from the bond of an officer of a corporation by giving rea-
sonable notice. But the withdrawal cannot take effect immedi-
59. Stemmerman v. Lillienthal, 54 63. Morris Canal v. Van Vorst, 21
S. C. 440. N. J. L. 100.
60. Granite Bldg. Co. v. Saville's See as to payment of debt dis-
Adm'r, 101 Va. 217, 43 S. E. 351. charging surety, § 94.
61. Clark v. Mallory, 83 111. App. 64. Sheeby v. Mandeville, 6 Cranch
488; Crane v. Ailing, 15 N. J. L. 423; (U. S.) 253, 3 L. Ed. 215.
Dean v. Newhall, 2 Term R. 168; 6.^. Alschiiler v. Schiff, lf;4 Til. 298,
Thompson v. Lock, 3 M. G. & S. 540. 45 N. E. 424; Talbut v. Whipple, 14
62. Bowne v. Bank, 45 N. J. L. Allen (Mass.) 177; Allen v. Jaquish,
360. 21 Wend. (N. Y.) 628.
§§ 2U7, 297a Suretyship and Guaeanty. 304
ately upon service of notice. Because the directors receiving such
notice must have a reasonable time to act and to give notice to the
principal and the co-sureties if there be any, and time to procure
a new bond. Hence such notice cannot operate immediately, and
does not affect the liability of the other sureties.^^
§ 297. Discharge by Acts of the Obligee. — Acts of the cor-
poration may be such as to discharge the sureties v^ho are on
the bond of one of its agents. Thus, the sureties on a treasurer's
bond are not liable for defaults which occurred after the omission
to re-elect him at a regular meeting of the directors of the corpora-
tion for that purpose, and after such further time as may be rea-
sonably sufficient for the election and qualification of his successor,
although he continues to act as treasurer, and his re-election takes
place at the next meeting thereafter. ^^ So where a charter is for-
feited the sureties on a cashier's bond are not liable afterwards,
though a statute is passed reviving the charter.^* So, where the re-
muneration of the principal is changed so as to make a different
agency, the sureties are released.^
§ 297a. Departure from Terms of Contract. — A material de-
parture from the terms of the contract of suretyship in respect to
the duties of the employee, such as releasing him from the obliga-
tion to make weekly reports as required by such contract, will
release the surety.'" There may, however, be a departure from
the contract where the terms thereof may be so construed as to
authorize such a change. In this case the sureties will not be
released.''^
66. Bostwick v. Van Voorhis, 91 N. Whinary, 10 Exch. 17; Bamford v.
Y. 353. lies, 3 Exch. 380.
As to revoking suretyship, see § 70. Fidelity Mutual Life Ass'n v.
87 herein ; In re United States Fidel- Dewey, 83 Minn. 389, 86 N. W. 423.
ity & Guaranty Co., 50 Misc. R. (N. See, as to change of the principal
Y.) 147, 98 N. Y. Supp. 217. contract, §§ TOO et seq. herein.
67. Lexington, etc., R. R. Co. v. 71. Travelers Ins. Co. v. Stiles, 82
Elwell, 8 Allen (Mass.) 371. App. Div. (N. Y.) 441, 81 N. Y. Supp.
68. Bank of Barrington, 2 P. & W. 664.
(Pa.) 27. See, as to change of the principal
Compare Union Bank v. Forrest, 3 contract, §§ 100 et seq herein; as to
Cranch C. C. 218. building contracts and change au-
69. Northwestern Railway Co. v. thorized, see § 439 herein.
305 Bonds of Private Officers and Agents. §§ 298, 299
8 298, Action on the Bond. — The action on the bond is often
regulated by statute. Thus, in Massachusetts, the sureties on a
bond, severally, but not jointly, may be joined as defendants in
one action on the bond.^" The sole purpose of this statute is to
facilitate proceedings against parties severally liable on the same
contract, and to permit their rights to be determined under one
process, instead of compelling the party seeking redress to resort
to several actions.''^ If the bond is made to the directors instead
of the corporation, the legal effect is to make it apply to the cor-
poration, which may bring action against the sureties.^* If the
bond is given to the directors of a joint stock company, who are
elected annually, such directors can bring action on the bond after
they have ceased to be directors.^''
If a surety in witness of his obligation to perform certain
■covenants and conditions affixes his hand and seal to the instru-
ment, and delivers it as his bond, it is adequate to bind him, al-
though his name is not mentioned in any part of the body of the
bond, and a blank for it is left unfilled.'^^ And so two or more
obligors may adopt one seal and be charged as obligors, although
the names of all the signers do not appear in the body of the bond.'^^
In a joint action against a cashier and his sureties the ad-
missions and declarations of the cashier as to his defaults are evi-
dence against his sureties.''^ Because the principal and sureties
are all bound by a joint obligation, all declarations and admis-
sions of the principal are evidence against the sureties in an ac-
tion against them.'® In a joint and several bond a principal is not
a necessary party to an action against his surety.^"
§ 299. Sureties Concluded by Recitals in a Bond. — Sureties
are concluded by the recitals in the bond which they have exe-
72. Grocers Bank v. Kingman, 16 77. Building Association v. Cum-
Gray (Mass.) 473. mings, 45 Ohio St. 664.
73. Fuller v. Morris, 4 Gray 78. Amherst Bank v. Root, 2 Met.
(M?ss.) 295. (Mass.) 522.
74. Bayle v. Ins. Co.. 6 Hill (N. 79. Pendleton v. Bank, 1 T. B.
y.) 476. Mon. (Ky.) 171, 181.
75. Anderson v. Longdon, 1 Wheat. See, also, Union Bank v. Ridgely,
(U. S.) 85, 4 L. Ed. 42. 1 Har. & G. (Md.) 327.
76. Scheid v. Liebschultz. 51 Ind. 80. Whipp v. Casey, 21 R. I. 508,
38; Danker v. Atwood, 119 Mass. 45 Atl. 93.
146; Howell v. Parsons, 89 N. C.
530.
20
§ 300 (Suretyship and Guaranty. 306
cuted.^^ Thus, where a cashier's bond recites that he had been
appointed hy the board of directors, such recital is conclusive on
the sureties.^^ And so when the recital states that a certain per-
son has been appointed an officer or agent, the surety cannot con-
tradict this by showing that the appointment was in fact subse-
quent to the date or even to the delivery of the bond.*^ When the
condition of the bond is plainly set forth it cannot be controlled
by any recitals not plainly inconsistent therewith.^*
§ 300. Liability for Loss of Money. — An agent or officer of a
corporation is required to use reasonable diligence in taking care
of money coming into his hands. If he does this he and his sure-
ties are not liable for loss. Thus, an agent of a railroad company
who has exercised due care and diligence, and kept the money as
required by the corporation, and it is stolen, he and his sureties
are not liable.^^ So where a party receives public moneys, but
is not a public officer and disburser of the money, and uses due
diligence, and the money is lost or stolen, he is not liable therefor.
Thus, a surrogate is not a public officer appointed to receive or
disburse public money, and it is not his main duty to receive,
keep or disburse the money of individuals. He is a mere trustee
or agent of the private parties whose money comes into his hands
by order of court. So if he deposits such money in a bank which
fails, without neglect on his part, he and his sureties are not
liable for the money lost by such failure.^®
81. Thompson v. Denner, 16 App. 83. Washington Co. v. Ins. Co., 26
Div. (N. Y.) 160, 44 N. Y. Supp. 723; Conn. 42.
Cutler V. Dickinson, 8 Pick. (Mass.) 84. Australian Joint Stock Bank v.
387. Bailey (1899), App. Cas. 396.
As to estoppel to deny recitals in 85. Chicago, B. & Q. R. Co. v. Bart-
bond, see §§ 59 et seq. herein. lett, 120 111. 603, 11 N. E. 867.
82. Lionberger v. Kreiger, 88 Mo. 86. People v. Faulkner, 107 N. Y^
160. 477, 14 N. E. 415.
307 Bonds of Public Officers and Awents.
CHAPTER XII.
BONDS OF PUBLIC OFFICERS AND AGENTS
Section 301. Extent of Surety's Liability.
302. Liability of Surety for Previous Defaults of Officer.
303. Presumption as to Sureties on Second Bond.
304. De Facto Officers.
305. Officers Holding Over.
306. Death of Officer.
307. Money Used to Cover Previous Delinquencies.
308. Giving Second Bond in Same Term.
309. Giving Bond without Statutory Authority — Non-com-
pliance with Statute.
310. General and Special Bonds Given by an Officer.
311. Sureties are Liable Only for Their Principal's Official Acts.
312. Subsequently Imposed Duties.
313. Subsequently Imposed Duties by the Legislature.
314. The State is not Responsible for Its Officers' Acts.
315. Forgery of Prior Surety's Name.
316. Money Lost or Stolen from Principal.
317. Depositing Public Money in Bank.
318. Making Profits on Public Funds.
319. Interest Recovered After Breach.
320. Liability of Sureties as to Payment of Penalties'.
321. Estoppel by Judgment.
321a. Construing Bonds with Reference to Statute.
322. Sheriffs and Constables.
323. Scope of Liability.
324. Levying on a Stranger's Property and on Property Exempt.
325. Officers Liable for Ministerial Duties.
326. Duty of Individuals and to the State,
327. Amount of Sureties' Liability.
328. Liability of Sureties After Term Expires.
329. Sureties' Liability on Bonds of Clerks of Court.
330. Compensation of Clerks.
331. Failure to Pay Over to Successor in Office or to Proper
Party.
332. Money Paid Into Court or by Order of Court.
333. Delinquencies of Clerks.
334. Sureties of Justices of the Peace.
335. Police Officer.
336. Sureties of Notary Public.
337. Tax Collector.
338. Subrogation of Sureties on Official Bond.
§ 301 SUKETYSHIP AND GUARANTY. 308
Sec. 301. Extent of Surety's Liability. — The liability of a
surety is not to be extended by implication beyond the terms of
his contract. When he signs the bond of a public officer he un-
dertakes to be responsible for the principal's official acts during
the term of his office.^ So the sureties are liable for all moneys re-
ceived in an official capacity by their principal, or in his hands
during the term of office, but not for his wrongful acts before they
became responsible for his official conduct by signing his bond.'
1. Ladd V. Trustees, 80 111. 234; Who may sue. A private individ-
Rochester v. Randall, 105 Mass. 295. ual Cannot sue on bond (Clough V.
The rule which favors sureties is Worsham, 32 Tex. Civ. App. 187, 74
not applied with strictness in de- s. w. 350). Nor can such person re-
termining the liability of sureties on cover on the bond unless the statute
official bonds. Holthouse v. State authorizes it (Eaton Rapids, City of,
(Ind. App. 1912), 97 N. E. 130. to Use of Snyder v. Stump, 127 Mich.
Examine United States v. Boyd 1, 86 N. W. 438, 8 Det. Leg. N. 206),
(U. S. C. C), 118 Fed. 89, holding and without showing violation of
that bond of a consul-general is to some special duty to him. State v.
be strictly construed. Stout, 26 Ind. App. 446, 59 N. E. 109.
Acts done under color of office are A city clerk's bond covers acts
covered by such a bond. Hall v. done by an assistant of his within
Tierney, 89 Minn. 407, 95 N. W. 219; the official scope of his duties. But-
State v. Ryland, 163 Mo. 280, 63 S. ler v. City of Milwaukee, 119 Wis.
W. 819. 526, 97 N. W. 185.
But see State v. Porter, 69 Neb. Consul-general. Bond of to be
203, 95 N. W. 769. strictly construed. United States v.
See § 304 herein, as to de facto of- Boyd (U. S. C. C), 118 Fed. 89.
ficers. County treasurer's bond. Loss or
A judgment against the principal destruction of some of the records
is prima facie evidence against the or vouchers does not prevent recov-
sureties. Barker v. "Whaler, 60 Neb. ery on bond. Montmorency County v.
470, 83 N. W. 678, so holding in case Wiltse, 125 Mich. 47, 83 N. W. 1010,
of bond of a county judge. 7 I>et. Leg. N. 407.
Bond presumed to be for term for Bond for county work an official
which official appointed, where, by bond. A bond given by one who has
the terms of the bond it is for the entered into a contract for county
term " hereinafter specified " and work under a statute providing that
none is specified. City of Camden v. official bonds shall not be vitiated
Greenwald, 65 N. J. L. 458, 47 Atl. by defects therein, is an official
458. bond within the meaning of such act.
Sureties estopped to allege that Holthouse v. State (Ind. App. 1912),
principal was ineligible for office. 97 N. E. 130.
Hogue V. State ex rel. Board of 2. Georgia. — Graham v. City of
School Com'rs, 28 Ind. App. 285, 62 Baxley, 117 Ga. 42, 43 S. E. 405.
N. E. 656.
30J9
Bonds of Public Officers and Agents.
§ 301
So when money has been received and converted by the officer
during a prior term, the sureties on a subsequent bond are not
liable for such past default.^ The sureties are only liable for the
misconduct of the officer in his official capacity during his term,
when they were his surety.* And until the sureties are accepted
Illinois. — Stern v. People, 96 111.
475; Morley v. Metamore, 76 111. 396.
Indiana. — Parker v. Medsker, 80
Ind. 155.
Michigan. — Detroit v. Weber, 29
Mich. 24.
Missouri. — State v. Alsup, 91 Mo,
172.
Nebraska, — Van Sickel v. Buffalo
Co., 13 Neb. 103, 13 N. W. 19.
See, as to liability for previous de-
faults, § 302 herein.
Sureties are insurers as to funds
coming into hands of the principal.
Ramsay's Estate v. People, 97 111.
App. 283; Swift v. Trustees of
Schools, 91 111. App. 221, affirmed
189 111. 584, 60 N. E. 44; Smith v.
Patton, 131 N. C. 396, 42 S. E. 849.
Only act of God or the public
enemy excuses failure to account
for public funds. Pond v. United
States, 111 Fed. 989, 49 C. C. A. 582.
The Burden of proof is on defend-
ants in an action against the prin-
cipal and his sureties to show, where
it is alleged that moneys in his
hands have not been turned over to
his successor, the reason why they
have not. Ramsay's Estate v. Peo-
ple, 97 111. App. 283, affirmed 197 111.
572, 64 N. E. 549.
See, also. Swift v. Trustees of
Schools, 91 111. App. 221, affirmed
189 III. 584, 60 N. E. 44, as to burden
of proof on sureties to show lawful
expenditure of funds.
It is a question for jury as to what
Is a refponpble time within which
funds should be turned over to a
successor. City of Camden v. Green-
wald, 65 N. J. L. 458, 47 Atl. 458.
Bond of Collector of internal reve-
nue. Liable for failure to account
for public funds, except where
due to act of God or public
enemy. Pond v. United States, 111
Fed. 989, 49 C. C. A. 582.
Bond of county clerk. Liable for
fees coming into his hands from any
source whatever. Kingman v. Peoria
County, 96 111. App. 417.
Bond of county judge. Liable for
conversion of funds received by him
in his official capacity. Barker v.
Wheeler, 60 Neb. 470, 83 N. W. 678.
Bond of county treasurer. Liable
for payment by such official of fraud-
ulent refundment and redemption
orders. Board of Com'rs of Ramsey
County V. Elmund, 89 Minn. 56, 93
N. W. 1054.
Compare State v. Weeks, 92 Mo.
App. 359.
Bond of notary. Liable for appro-
priation of money of plaintff suffi-
cient to pay for cancellation of mort-
gage. Stork V. American Surety Co.,
109 La. 713, 33 So. 742.
Bond of overseer of poor. See
Town of Goshen v. Smith, 61 App.
Div. (N. Y.) 461, 70 N. Y. Supp. 623,
affirmed 173 N. Y. 597, 65 N. E. 1123.
Bond of School treasurer. Liable
for moneys given to him though
given irregularly. Hogue v. State,
28 Ind App. 285, 63 N. E. 799.
3. Bissell V. Saxton, 66 N. Y. 55.
4. California. — People v. Smith,
123 Csbi. 70, 55 Pao. 765.
§ 301
Suretyship and Guaranty.
310
by the obligee, they are at liberty to revoke the bond. But until
they signify an intention to recede, the ^tate may bind them by
accepting their offer to answer for the official misconduct of their
principal.^ And the principal in an official bond has the implied
agency to deliver it as the contract of the sureties.^
When the surety signs a bond the law raises an implied promise
by the principal to reimburse the surety for any loss which he
may sustain, and when the loss occurs this implied contract of
indemnity relates back and takes effect from the time when the
surety became responsible.^ An illegal agreement by a public
officer to deposit public funds in a bank represented by his sure-
ties, upon which agreement they sign the bond, is so blended with
the officer's implied promise to indemnify the sureties against loss
that the implied promise cannot be enforced by them. Because
the law will not enforce an implied promise of indemnity resting
upon an illegal consideration that a bank would borrow money
and pay interest on it ; the parties in such case are all engaged in
the illegal enterprise, and all are equally involved.^
Indiana. — State ex rel. Wyatt v.
Bagby, 160 Ind. 669, 67 N. E. 519;
State V. Flynn, 157 Ind. 52, 60 N. E.
.684.
Kansas. — Wilson v. State, 67 Kan.
-44, 72 Pac. 517.
Kentucky. — American Bonding &
Trust Co. V. Blount, 23 Ky. Law Rep.
1,632, 65 S. W. 806; Coleman v.
Eaker, 23 Ky. Law Rep. 513, 63 S.
W. 484.
Michigan. — Cheboygan Co. v. Er-
ratt, 110 Mich. 156, 67 N. W. 1117.
Missouri. — Pundman v. Schoen-
lich, 144 Mo. 149, 45 S. W. 1112.
^"ebraska. — State v. Moore, 56 Neb.
82, 76 N. W 474.
New York. — De Sisto v. Stimmel,
58 App. Div. 486, 69 N. Y. Supp. 431.
The bond may by its terms be a
continuing' one covering more than
one term of office. Newburyport v.
Davis, 209 Mass. 126, 95 N. E. 1110.
The sureties are only liable for
the term for which their bond is
given and it is not material that the
bond does not express the obliga-
tion, as the law determines it.
United States Fidelity & Guaranty
Co. v. Faulkner, 144 Ky. 629, 139 S.
W. 853.
5. State v. Dunn, 11 La. Ann. 550;
Paxton V. State, 59 Neb. 460, 81 N. W.
383.
6. Pequawket Bridge v. Mathis, 8
N. H. 139; King Co. v. Ferry, 5
Wash. 536, 32 Pac. 538.
7. Ramsey v. Whitbeck, 183 111.
550, 56 N. E. 322; Choteau v. Jones,
11 111. 300; Rice v. Southgate, 16
Gray (Mass.) 142.
As to liability of principal to
surety, see §§ 174 et seq. herein.
Has right to contribution from
other sureties. Carter v. Fidelity &
Deposit Co., 134 Ala. 369, 32 So. 632.
8. Ramsay v. Whitbeck, 183 111.
550, 56 N. E. 322.
311 Bonds of Public Officers a.\d Agents. § 3U2
§ 302. Liability of Surety for Previous Defaults of the Officer.
— In the absence of statute providing otherwise, or of expr.jss
stipulation in the bond, sureties on otiicers' bonds are not liable for
the defaults of their principal occurring before the execution of
the bond. And the fact that the principal is the incumbent of the
same office for successive terms, does not change the rule, since,
in such cases, the sureties on the last bond must be treated and
considered, and the extent of their liability determined as far as
practicable, as if their principal had not been the incumbent for
the preceding term.^
But where a bond issued by a surety company was conditioned
for the faithful discharge of the official duties of a supervisor,
.and that he would account for all moneys and property belonging
to the town and coming into his hands as such supervisor, which
bond was issued on his application, by which he agreed to pay
a certain premium per annum in advance, during the continuance
of the bond, and there was no time stated in either the bond or the
application for its expiration, and the supervisor was afterwards
re-elected for another term and paid the premium, but gave no
new bond, the liability of the surety company was held to continue
9. United States. — Farrar v. United New York. — Bissell v. Sexton, 66
States, 5 Pet. 373, 8 L. Ed. 159; N. Y. 60. See Town of Gfoshen v.
United States v. Boyd, 15 Pet. 187, Smith, 61 App. Dv. 461, 70 N. Y.
10 L. Ed. 706. Supp. 623.
Alabama.— McPhillips v. McGrath, Wisconsin.— Vivian v. Otis, 24 Wis.
117 Ala. 549, 23 So. 721; Townsend 518.
V. Everett, 4 Ala. 607. That sureties are not liable for
Idaho. — Work Bros. v. Kinney, 8 past defaults of principal, see § 69
Ida. 771, 71 Pac. 477. herein.
Indiana.— Gonser v. State ex rel. By the Public Officers' Law in
Haskins, 30 Ind. App. 508, 65 N. E. New York, Laws of 1892, chap. 681,
764. the sureties on a county treasurer's
Kansas. — See Weakley v. Cherry bond are liable for acts of his in the
Tp., 62 Kan. 867, 63 Pac. 433. interval between the time that the
Michigan. — Detroit v. Weber, 29 bond was required by resolution of
Mich. 24. the supervisors and the time it was
Minnesota. — Board of Education delivered. Waydell v. Hutchison,
of Preston Independent School Dist. 146 App. Div. (N. Y.) 448, 131 N. Y.
No. 45 v. Robinson, 81 Minn. 305, 84 Supp. 315.
N. W. 105 ; State v. Bobleter, 83 Minn.
479, 86 N. W. 461.
§§ 303, 304 .Suretyship and Guaeanty. 312
for the proper discharge of the duties by the supervisor after the
expiration of his original term.^°
§ 303. Presumption as to Sureties on a Second Bond. — No
presumption arises against the sureties on a second oMciai bond,
that moneys which came into the principal's official possession,
while a iormer bond was in force, were in his hands when the
second bond was executed ; but each case must be governed by its
own particular facts and circumstances.^^
Some courts state the doctrine still stronger, that there is no
presumption as against the sureties on a second bond, that the
money which came into the possession of the principal while a
former bond was in force, is still in his hands when the second
was executed, thereby making the second sureties liable.^^ But it
is the better rule that each case, as to such presumptions, must be
governed by its particular facts and circumstances." But if there
is no evidence whatever to determine in which term the default
occurred, the law will presume that it occurred in the last tenn.^*
§ 304. De Facto Officers. — Where it appears that a party
elected or appointed to a public office, has executed a bond, but
has not qualified according to law, and takes possession of the
office by color of right, he is a de facto officer, and the sureties on
his bond are liable for his official defaults. A person being an
officer de facto will not be permitted to show or rely upon the fact
that he was not an officer de jure for the purpose of attacking and
setting aside anything which he may have done in his official ca-
10. Town of Whitestown v. Title Indiana. — Goodwin v. State, 81
Guaranty & Surety Co., 72 Misc. R. Ind. 109.
(N. Y.) 498, 131 N. Y. Supp. 390. Iowa.— Bockenstedt v. Perkins, 72
11. McPhillips V. McGrath, 117 Iowa 23, 34 N. W. 488.
Ala. 549, 23 So. 721. Minnesota. — County of Pine v.
12. Myers v. United States, 1 Mc- Willard, 39 Minn. 125, 39 N. W. 71.
Lean 493. Ohio.— Kelly v. State, 25 Ohio 567.
13. Williams v. Harrison, 19 Ala. Wisconsin. — Clark v. Wilkinson, 59
277; McPhillips v. McGrath, 117 Ala. Wis. 543, 18 N. W. 481.
549, 23 So. 721. Compare Trustees v. Smith, 88 111.
14. Illinois. — Kagey v. Trustees, 68 181 ; Phipsbury v. Dickinson, 78 Me.
111. 75. 457.
313 Bonds of Public Officers and Agents. § 305
pacity ; and upon like reasons his sureties are also estopped.^^ So
where the election of a sheriff was void, and his induction into
office illegal, he becomes an officer de facto, but not de jure, and
those on his voluntary bond as sureties carniot absolve themselves*
from liability by insisting that he was not sheriliV'' And a per-
son who discharges the duties of a public officer under color of
right, is an officer de facto, and not a mere intruder, and his sure-
ties are estopped by the recitals in his official bond from denying
that he was entitled to the office."
§ 305- Officers Holding Over. — A bond or obligation given to
secure the performance of official duties, is to be construed with
reference to the term for which the incumbent is elected or ap-
pointed ; and the law governing as to term, its time of commence-
ment and expiration, and the conditions and contingencies upon
which it shall begin, continue and come to an end, enters into and
forms a part of such bond or obligation where general language
is used in stipulating the conditions. The sureties upon such
undertaking are presumed to know the duration and term when
they become parties to such bond, and to have intended to bind
themselves to the extent and for and during the time that their
principals were bound.^^ And where it is provided by law that a
15. Connecticut. — Plymouth v. Scott, 53 Neb. 176, 73 N. W. 681;
Painter, 17 Conn. 585. State v. Rhoades, 6 Nev. 352.
Illinois. — Chicago v. Gage, 95 111. Compare State v. Porter, 69 Neb.
593; Green v. Wardwell, 17 111. 278. 203, 95 N. W. 769.
Iowa, — Boone Co. v. Jones, 54 18. Connecticnt. — Welch v. Sey-
lowa 699, 2 N. W. 987, 7 N. W. 155. mour, 28 Conn. 393.
Massachusetts. — Buckman v. Rug- Delaware. — May v. Horn, 2 Harr.
gles, 15 Mass. 180. 190.
Nebrasta. — Holt County v. Scott, Illinois. — See Ramsay's Estate v.
53 Neb. 176, 73 N. W. 681. People, 197 111. 572, 64 N. E. 549, af-
New York. — People v. Collins, 7 firming 97 111. App. 283.
Johns. 549. Indiana. — State v. Berry, 50 Ind.
West Virginia. — Reed v. Hedges, 16 496.
W. Va. 194. Iowa. — Wapello Co. v. Bigham, 10
16. Jones v. Scanland, 6 Humph. Iowa 42.
(Tenn.) 195. Kansas. — Sparks v. Bank, 3 Del.
17. Hall V. Tierney, 89 Minn. 407, Ch. 300; Riddel v. School Dist., 15
95 N. W. 219; State v. Ryland, 163 Kan. 168.
Mo. 280, 63 S. W. 819; Holt Co. v, Massachusetts. — Chelmesford v..
Demorest, 7 Gray 1.
§ 305 Suretyship and Guaeanty. 314:
public officer shall hold his office until his successor is appointed
or elected, the term of office does not expire until he leaves the
office, as he continues in office by virtue of the previous election
and qualification. Hence, the sureties on the official bond of such
officer who holds under the law until his successor is appointed or
elected and qualified, are liable for defalcations of their principal
after the expiration of the year, while holding over pending the
election or appointment of his successor. ^^ The official acts of the
principal during the time he thus holds over without any new ap-
pointment, come within the term, and he and his sureties are
liable on his official bond given at the time of the qualification.^"
And a similar view is held where the bond contains such a
recital.^^
Minnesota. — Scott Co. v. Ring, 29 Mississippi. — Thompson v. State,
Minn. 401. 37 Miss. 518.
Missouri. — Savings Bank v. Hunt, Missouri. — State v. Kurtzebone, 78
72 Mo. 597. Mo. 99; Long v. Seay, 72 Mo. 648.
New Hampshire. — Dover v. Twom- Nevada. — State v. Wells, 8 Nev.
bly, 42 N. H. 59. 105.
New Jersey. — Mayor v. Crowell, Oregon. — Eddy v. Kincaid, 28
40 N. J. L. 207. Oreg. 537, 41 Pac. 156, 655; Baker
See in this connection §§ 70, 71 City v. Murphy, 30 Oreg. 405, 42
herein. Pac. 133.
Though bond does not specify 21. Village of Laurium v. Mills,
time or term for which given it is 129 Mich. 536, 89 N. W. 362, 8 Det.
binding. City of Camden v. Green- Leg. N. 1083.
wald, 65 N. J. L. 458, 47 Atl. 458. " Until his successor is appointed."
Can not alter term fixed by stat- Such a clause in a bond is held to
ute and stated in bond. The term bind the surety for failure to turn
of the bond of an officer to a county over funds to a successor within a
fixed by the statute and expressed reasonable time. City of Camden
in the bond may not be shortened, v. Greenwald, 65 N. J. L. 458, 47 Atl.
changed or avoided by the fact that 458.
the county board before the bond " For and during such succeeding
was made or accepted called for a terms as said above bounden shall
bond with a shorter term. Empire continue to perform the duties of
State Surety Co. v. Carroll County such town treasurer" held to bind
(U. S. C. C. A. 1912), 194 Fed. 593. the sureties for a default after the
19. Baker City v. Murphy, 30 Ore. term mentioned in the bond had ex-
405, 42 Pac. 133. pired though there was no power
20. Minnesota. — Taylor v. Sulli- to appoint him for more than one
van, 45 Minn. 309, 47 N. W. 802. term. City of Camden v. Greenwald,
65 N. J. L. 458, 47 Atl. 458.
^15 Bonds of Public Officers and Agents. § 305
Some authorities hold that the officer so holding over after the
technical term, is not an officer de jure, and that the time inter-
vening between the expiration of the period fixed by the statute,
and the election and qualification of a successor, is not a part of
the preceding term, and that the holding over is pro tempore}'^
Aud in other cases it is held that the holding over is only an ac-
ceptancy of that proportion of the successor's term.^^ Again it is
stated that this liability of the sureties for the officer's defaults
who holds over, is an exception to the rule that the liability of a
surety ends with the expiration of the principal's term, and does
not continue for the additional time.
But whether considered as an exception or as the rule itself,
it can only be sustained upon the principle that the holding over
is a continuance of the term, and together with the technical term
constitutes one and the same term. But where the legislature
extends the term after the execution of the bond, it is said the
rule is different. Such extension will be an impairment of the
sureties' contract ; for, at the time of assuming the obligation, they
could not have had in mind the extended period which the legis-
lature afterwards saw fit to add to the term fixed by law, and did
not engage to become responsible for the acts of their principal
during the added time.^*
But other courts of the highest standing hold a different view,
which cannot be reconciled with the doctrine that the sureties are
responsible for the official acts of the principal during the time
of holding over. They hold that when an officer holds for the
definite term and until his successor is elected or appointed, the
sureties are liable only for a reasonable period after the expira-
tion of the technical term, for the election and qualification of the
successor; that it is not reasonable to suppose that the sureties
may be held for an indefinite time, even for their lifetime. ^^
22. State v. Howe. 25 Ohio St. 597. Delaware.— Mayor v. Horn, 2
23. Riddell v. Schoot Dist, 15 Harr. (Del.) 190.
"Kan. 170. Massachusetts. — Chelmesford Co.
24. King Co. v. Ferry, 5 Wash. v. Demorest, 7 Gray 1.
536_ New Hampshire. — Dover v. Twom-
Compare People v. McHatton, 2 bly, 42 N. H. 59.
Gil. (111.) 732. New Jersey. — Citizen's Loan Asso.
ConnecticTit.— Welch v. Seymour, v. Nugent, 40 N. J. L. 215; Mayor t.
28 Conn. 387. Crowell, 40 N. J. L. 207.
§ 307 SUKETYSHIP AND GuAEANTY. 316
§ 306. Death of Officer. — The death of a public officer during
his term creates a vacancy, but does not change his obligations.
And so where the money is not paid according to his obligation
to his successor, the sureties on his bond are liable.^^ Because the
obligation was to pay over to the proper officer the money in his
hands at the termination of his service, in whatever way that event
may be produced, whether by resignation, removal or death."
The rule as to the obligation of a guarantor in respect to trans-
actions occurring after his death, is that the obligation is not
affected by his death, if the contract of guaranty is one from which
he might not withdraw upon notice ; if he could have done so, then
his death will give the effect of a notice of withdrawal, as held by
some courts;^* but other decisions hold that before his death i»
notice, it must be brought home to the obligee.^' And so where
the surety cannot be released without the consent of the obligee,
his death makes his estate liable for defaults of his principal.^"
But where a constable died before the expiration of the time
within which to make a return it is held that no action can be
maintained on his bond for said failure.^^
§ 307. Money Used to Cover Previous Delinquencies. — Sure-
ties on a second bond are responsible for public money received
during the second term, which is applied to cover a previous de-
linquency under a former bond, because it is a misapplication of
money .^^ Thus, where a collector receives taxes for a particular
year, and instead of having them applied to the credit of the taxes
for that year with which he is chargeable, directs their application
to the discharge of his defaults for previous years, such applica-
tion is a breach of his official bond, for which his last sureties are
26. Great Falls, City of v. Hanks, Mass. 112, 22 N. E. 765; Coulthart
21 Mont. 83, 52 Pac. 785. v. Clemenson, 5 Q. B. Div. 42.
27. Allen v. State, 6 Blackf. (Ind.) UO. Fewlass v. Keesham, 88 Fed.
252. 573; Holden v. Jones, 7 Ired. L. (N.
28. Moore v. Wallis, 18 Ala. 458; C.) 191.
Voris V. State, 47 Ind. 355; Green v. 31. Moore & Co. v. Rooks, 71 Ark.
Young, 8 Me. 14; Lloyd v. Harper, 562, 76 S. W. 548.
16 Ch. Div. 290; Calvert v. Gordon, 32. Coleraine v. Bell, 7 Met.
3 Man. & R. 124. (Mass.) 499; County of Pine v. Wil-
29. Gay v. Ward, 67 Conn. 147, 34 lard, 39 Minn. 125, 39 N. W. 71;
Atl. 1025; Jordan v. Dobbins, 122 State v. Seoy, 39 N. J. L. 539;
Mass. 168; Hyland v. Habich, 150 Gwynne v. Burnell, 7 CI. & F. 572.
317 Bonds of Public Officers and Agents. §§ 308, 309
responsible.^^ Paying money received in a subsequent term to
make satisfaction of defalcations occurring in a prior term is a
breach of his last bond, as a misappropriation of money received
in his official capacity, and his last sureties are liable for such
breach as if he had paid it out for any other purpose not in his
official capacity.^*
§ 308. Giving Second Bond in Same Term. — Giving an addi-
tional bond during the same term of office does not necessarily
discharge the sureties on the first bond. The sureties on the first
bond are not released, because tbe second bond does not operate
as a merger or extinguishment of the first security, as it is of no
higher degree,^ and is to be treated as a concurrent security with
the original bond.^® Thus, where a sheriff, on the order of the
court, gives an additional bond, either or both sets of sureties are
liable to a party injured by the official acts of the sheriff." So
where a city, according to law, exacts another bond, this does not
release the sureties on the first bond.^*
In giving a second bond, the sureties are only liable for such
acts as are thereafter done by the principal, unless the stipulations
in the bond or the statute provide that the second sureties shall
be liable for prior as well as subsequent delinquencies of the
•officer.^'
§ 309. Giving Bond Without Statutory Authority. — Non-
compliance vnth Statute. — In some instances an officer has been
required to give a bond which is not required by statutory pro-
83. Frownfelter v. State, 66 Md. 36. Allen v. State, 61 Ind. 268;
80, 5 Atl. 410. State v. Sappington, 67 Mo. 529.
34. Gwynne v. Burnell, 7 CI. & F. 37. State v. Crooks, 7 Ohio 573.
572. 38. New Orleans v. Gauthreaux,
35. Postmaster-General v. Mun- 39 La. Ann. 109.
ger, 2 Paine 189; Fidelity & Deposit 39. Cullom v. Dolloff, 94 111. 330;
Co. of Maryland v. Fleming, 132 N. Jones, v. Gallatine Co., 78 Ky. 491;
•C. 332, 43 S. E. 899; Hand Mfg. Co. McPhillips v. McGrath, 117 Ala. 549,
V. Marks, 36 Oreg. 523, 52 Pac. 512, 23 So. 721; Schuff v. Pflanz, 99 Ky.
53 Pac. 1072, 59 Pac. 549. 97, 35 S. W. 132.
See State v. McDannel (Tenn.
Ch. App.), 59 S. W. 451.
§ 309 Suretyship and Guaranty. 318
visions ; that is, he gives a voluntary bond. Such bonds are valid
obligations, and sureties on the same are liable for defaults of
their principal in like manner as if such bond was required by
statute ; such bonds are a good common law obligation.""^ It is
sufficient to make a bond valid as a common law obligation, that
it is voluntarily given, and that the office and the duties assigned
to the officer and covered by the bond, are duly authorized by law."
Thus, a voluntary bond given by a State treasurer for the faith-
ful discharge of his duties, is valid.*^ The general rule is that
a bond, whether required by statute or not, is a good common law
bond, if entered into voluntarily and for a valuable consideration,
and if not repugnant to the letter or policy of the law.^^
And though a bond may not in all respects conform to the statu-
tory provisions as to such bonds in that it omits some statutory
requirement or contains some clause not required by law, it may
nevertheless be held binding on the sureties.** So a depositary
bond may be binding, though there is not a strict compliance with
all the minutiae of the statute. It is said that when faith and
credit have been given to such a bond and it has performed for its
principals the function of obtaining money, property or other
valuable thing, it illy becomes its obligors to make immaterial
variances from statutory form an avoidance of liability.*''
40. United States v. Tingey, 5 Pet. ofRcial duties, while the statute re-
(U. S.) 115, 8 L. Ed. 66; United quires one covering only the single
States V. Bradley, 10 Pet. (U. S.) duty of paying over moneys. In
343, 360, 9 L. Ed. 448. such case the surplusage will be
As to statutory bond and estoppel rejected and the bond sustained as
see § 67b. to the statutory conditions which
41. United States v. Rogers, 28 it includes. Milwaukee v. United
Fed. 607. States Fidelity & Guaranty Co., 144
42. Sooy V. State, 38 N. J. L. 324. Wis. 603, 129 N. W. 686.
43. Potter v. State, 23 Ind. 550; 44. Laffan v. United States, 122
Crawford v. Howard, 9 Ga. 314; Fed. 333, 58 C. C. A. 495; Carter v.
State V. Harvey, 57 Miss. 863; Peo- Fidelity & Deposit Co. of Maryland,
pie V. Collins, 7 Johns. (N. Y.) 554. 134 Ala. 369, 32 So. 632; Town of
A bond given by a public officer Is Turnwater v. Hardt, 28 "Wash. 684,
not deprived of its character as an 69 Pac. 378.
official statutory bond by the fact Compare Anderson v. Brumby,
that it differs in verbiage from the 115 Ga. 644, 42 S. E. 77.
bond presented by statute or by the 45. Henry County v. Salmon, 201
further fact that it covers all of his Mo. 136, 100 S. W. 20.
319
Bonds OF Public Officees AND Agents. §§ 310,311
§ 310. General and Special Bonds Given by an Officer, — The
general rule is that when an officer is required to perform a duty
which is special in its nature, he is required to give a special bond,
though he has already given a general bond, and in the absence
of any declaration that the sureties on the general bond shall also
be liable, it does not bind them for the special duty/^ Thus, a
county treasurer, where his bond does not cover money coming
into his hands for sale of school and university lands, is not liable
on his bond for the misappropriation of such money, nor are his
sureties. To make him liable, a special bond, covering such money,
should have been given.*^ The sureties on the officer's general bond
are not liable for any delinquency in the performance of such new
obligation.^*
But where a special bond is required and by statute it is in the
nature of a cumulative security, the sureties on the general bond
can also be held.^^
§ 311. Sureties are Liable Only for Their Principal's Official
Acts. — For all defaults of the officer within the limit of what the
law authorizes or enjoins upon him, as such officer, the sureties are
bound ; but they are not bound for acts which are not official, that
is, those which are not done in his official capacity.^"
46. United States. — United States
V. Cheeseman, 3 Saw. 424.
Illinois. — People v. Moon, 3 Scam.
123.
Kentucky. — Lyman v. Conkey, 1
Met. 317.
Maine. — Williams v. Morton, 38
Me. 52.
Michigan. — White v. East Sagi-
naw, 43 Mich. 567.
Minnesota. — State v. Younge, 23
Minn. 551.
Missouri. — State v. Johnson, 55
Mo. 80.
Nevada. — Henderson v. Coover, 4
Nev. 429.
North Carolina. — State v. Bate-
man, 102 N. C. 52, 18 S. E. 882.
Pennsylvania. — Commonwealth v.
Toms, 45 Pa. St. 408.
Ohio.— State v. Corey, 16 Ohio St.
17.
Texas.— Briton v. Fort Worth, 78
Tex. 227.
Wisconsin. — Board of Supervisors
of Milwaukee Co. v. Pabst, 70 Wis.
352, 35 N. W. 337; Milwaukee Co.
V. Ehlers, 45 Wis. 281.
47. Morrow v. Wood, 56 Ala. 8;
County of Redwood v. Tower, 28
Minn. 45, 8 N. W. 907.
48. Cartly v. Allen, 56 Ala. 198;
Anderson v. Thompson, 10 Bush
(Ky.) 132; County Board v. Bate-
man, 102 N. C. 52, 18 S. E. 882; Col-
umbia County V. Massie, 31 Ore. 292„
48 Pac. 694.
49. Johnson v. Babbitt, 81 Miss.
339, 33 So. 73; State v. McDannel
(Tenn. Ch. App.), 59 S. W. 451.
50. United States.— People v. Hil-
ton, 36 Fed. 172.
California. — People v. Smith, 12X
Cal. 70, 55 Pac. 765.
;§ 312,313
.Suretyship and Guaranty.
320
In the assumption of duties not belonging to his office, or the
neglect of other officers in the discharge of other duties, he cannot
extend the sureties' liability beyond the terms of his undertaking
for which the sureties engaged to see completed. ^^ The sureties'
liabilities cannot be enlarged by the acts of their principal.^^
§ 312. Subsequently Imposed Duties. — Duties not yet exist-
ing and not germane to the office are not within the contemplation
of the sureties on the official bond, nor properly covered by their
obligation ; hence, sureties are not liable for subsequently imposed
duties.^^ Thus, where the principal gives a bond for the faithful
performance of his duties as collector for a certain number of
townships, and the bond is afterwards altered so as to embrace an-
other township without the consent of the sureties, they are dis-
charged for money subsequently collected and embezzled by the
officer."
§ 313. Subsequently Imposed Duties by the Legislature. —
Sureties signing the bond of a public officer, have within con-
Illinois. — Orton V. City of Lincoln,
156 111. 499, 41 N. E. 159.
Indiana. — State v. Flynn, 157 Ind.
52, 60 N. E. 684; Scott v. State, 46
Ind. 203.
Kansas. — Wilson v. State, 67 Kan.
44, 72 Pac. 517.
Kentucky. — American Bonding &
Trust Co. V. Blount, 23 Ky. Law Rep.
1632, 65 S. W. 806.
Michigan. — Cheboygan County v.
Erratt, 110 Mich. 156, 67 N. W. 1117.
Missouri. — Pundman v. Schoen-
lick, 144 Mo. 149, 45 S. W. 1112.
Missonri. — State v. Bower, 72 Mo.
387; State ex rel. Linsay v. Harri-
son, 99 Mo. App. 57, 72 S. W. 469.
Nebraska. — State v. Moore, 56 Neb.
82, 76 N. W. 474.
New York. — People v. Lucas, 93 N.
Y. 585; Ward v. State, 81 N. Y. 406;
People V. Pennock, 60 N. Y. 421.
Ohio. — Webb v. Auspach, 3 Ohio
St. 522.
Texas. — Heidenheimer v. Brent, 59
Tex. 533.
England. — Leitch v. Taylor, 7
Barn. & Cr. 491.
51. People V. Pennock, 60 N. Y.
421; Supervisors v. Bates, 17 N. Y.
242.
52. People v. Toomy, 122 111. 308,
13 N. E. 521; Howard Co. v. Hill, 88
Md. 111.
53. United States. — Gaussen v.
United States, 97 U. S. 584, 24 L. Ed.
1009; Converse v. United States, 21
How. 463, 16 L. Ed. 192.
Indiana. — Lafayette v. James, 92
Ind. 240.
Michigan. — White v. East Saginaw,
43 Mich. 567, 6 N. W. 86.
Virginia. — Commonwealth t.
Holmes, 25 Gratt. 771.
England. — Graham, L. R. 5 C. P.
201.
54. Miller v. Stewart, 9 Wheat. (U.
S.) 680, 6 L. Ed. 189.
321 Bonds of Public Officers and Agents. § 314
templation all changes that may be made by law as to the officer's
duties, and are liable for his defaults after such additional obliga-
tions.^^ There is a difference between the contract of public of-
ficers and the State, and the contract between individuals. In the
contracts of individuals no alteration can be made without mutual
consent of both parties. In the case of a public officer and the
State, the legislature has power at any and all times to change
the duties of officers, and the continued existence of that power is
known to the officer and his sureties, and the officer accepts the
office and the sureties execute the bond with this knowledge ; the
power of the legislature to change his duties enters into and be-
-comes a part of his contract.^^ Thus, it is said the legislative ex-
tension of the time, for paying over taxes, of three weeks does not
discharge the sureties on the tax collector's bond." So the sure-
ties on a sheriff's bond are liable for defaults of their principal,
for the performance of new duties created after the bond was
executed.^^ The only limitation to this rule is that the new duties
imposed shall be of the same general nature and character as the
existing duties.^^
§ 314. The State is Not Responsible for Its Officers' Acts.—
Xeither the neglect or failure of the government to discharge some
duty to a third party, nor its neglect or laches in enforcing a com-
55. Prickett v. People, 88 111. 115; MJssonri.— Mooney v. State, 13 Mo.
Dawson v. State, 38 Ohio St. 1. 7.
See, also. City & County of San JVeiv York.— People v. Backus, 117
Francisco v. Mulcrery (Cal. App. N. Y. 196, 22 N. E. 769; People v.
1911), 113 Pac. 339. Vilas, 36 N. Y. 459.
As to employment or condition England. — Compare Pybus v.
changed by employer or by the leg- Gibbs, 6 El. & Bl. 903; Bartlett v.
islature, see § 72 herein. Atty.-Gen., Park 277.
56. United States.— United States 57. People v. McHatton, 2 Gil.
v. Kirkpatriek, 9 Wheat. 720, 6 L. (111.) 732.
Ed. 199. See, also, Kindle v. State, 7 Blackf.
Iowa.— Mahaska Co. v. Ingalls, 14 (Ind.) 566; State v. Carleton, 1 Gill
Iowa 170. (Md.) 249.
Kentucky. — Colter v. Morgan, 12 Compare King Co. v. Ferry, 5
B. Mon. 278. Wash. 536.
Massachusetts. — Cambridge v. 58. Mooney v. State, 13 Mo. 7.
Fifield, 126 Mass. 428. 59. White v. Fox, 22 Me. 341; Peo-
Minnesota.— County of Scott v. pie v. Vilas, 36 N. Y. 459.
Tling, 29 Minn. 398, 13 N. W. 398.
21
§ 315 SUKETYSHIP AND GUARANTY. 322
pliance with the bond's conditions, will release the sureties from
their obligation.'* Any neglect of a public oiHcer gives his sure-
ties no riglits against the State and affords them no excuse for not
performing their obligation according to its terms.^^ The State
is not responsible for acts of its officers, and the officer's sureties
enter upon their contract with full knowledge of this principle of
law/^ Thus, the failure of the governing body to compel a county
treasurer to make prompt settlement, and his default does not
discharge his sureties f^ for such governing body is not responsible
for the wrongful acts of its officer.'^'* So the sureties on the officer's
bond cannot successfully plead the neglect or failure of the State
to require their principal to render an account or remove him for
neglect of duty required of such officer by law, as a defense to their
liability upon a subsequent breach of the bond.'''' Thus, the de-
fault of a county treasurer is not excused by the neglect of the
county board, and it cannot be interposed as a defense by his
sureties.*®
§ 315. Forgery of Prior Surety's Name. — The fact that the
name of one of the sureties to an officer's bond has been forged,
60. United States v. Witten, 143 Texas.— Britton v. City of Fort
U. S. 76, 12 Sup. Ct. 372, 36 L. Ed. Worth, 78 Tex. 227, 14 S. W. 585.
81; Hart v. United States, 95 U. S. Wisconsin.— Kewaunee v. Kniper,
316, 24 L. Ed. 479; Mintern v. United 37 Wis. 490.
States, 106 U. S. 437, 1 Sup. Ct. 402, 63. Crawn v. Commonwealth, 84
27 L. Ed. 208. Va. 282, 4 S. E. 721.
61. Hart v. United States, 95 U. S. 64. Gibson v. United States, 8
316, 24 L. Ed. 479; Mintern V. United Wall. (U. S.) 269, 19 L. Ed. 453;
States, 106 U. S. 437, 1 Sup. Ct. 402, Jones v. United States, 18 Wall. (U.
27 L. Ed. 208; Pond V. United States, S.) 662, 21 L. Ed. 867; Manly v.
Ill Fed. 989, 49 C. C. A. 582. Atchison, 9 Kan. 358; People v. Rus-
62. United States.— Hart v. United sell, 4 Wend. (N. Y.) 570; Looney v.
States, 95 U. S. 316; Pond v. United Hughes, 26 N. Y. 514; Common-
States, 111 Fed. 989, 49 C. C. A. 582. wealth v. Wolbert, 6 Binn. (Pa.)
Illinois.— Stern v. People, 102 111. 292.
540. 65. United States v. Kirkpatrick,
Iowa.— Boone Co. v. Jones, 54 9 Wheat. (U. S.) 720, 6 L. Ed. 199;
Iowa 699, 2 N. W. 987, 7 N. W. 155. United States v. Vanzandt, 11 Wheat.
Minnesota.— County of Waseca v. (U. S.) 184, 6 L. Ed. 448; United
Sheehan (Board of County Cora'rs v. States v. Boyd, 15 Pet. (U. S.) 187,
Sheehan), 42 Minn. 57, 43 N. W. 10 L. Ed. 706.
690; Boardman Tower v. Flagg, 70 66. Coons v. People, 76 III. 391;
Minn. 338. Cawley v. People, 95 111. 249.
323 BoM)s OF Public Officers and Agejsts. § 316
unknown to the obligee when the bond was accepted, will not dis-
charge the surety who subsequently executes the bond in ignorance
of such forgery.*'^ And the fact that the surety whose name was
forged gives him no information of the fact, where the condition
upon which the surety signs is unknown to the obligee or officer
to whom the bond is given at the time he accepts it does not dis-
charge him.^^
And if the forged name is erased or obliterated before delivery
of the bond, the rights of the obligors therein will not be altered
or their liability affected thereby, and, of course, the surety is.
liable.^^ Because the surety would have been liable had the eras-
ure not been made. The obliterating the forged name in no re-
spect altered the rights or affected his liability. Where one of
two innocent parties must be the loser by the deceit or fraud o£
another, the loss must fall on him who employs and puts trust
and confidence in the deceiver, and not on the other.^''
§ 316. Money Lost or Stolen From Principal. — The general
rule is that money lost or stolen from the principal is no excep-
tion to the rule that binds the surety ; so for such money the sure-
ties are liable.^^ Thus, the loss of public moneys by a receiver
and disburser of it, feloniously taken from him without fault on
his part, does not discharge him or his sureties from the obliga-
tion on his bond ;^^ the same rule applies, though the receiver has
been robbed,^^ or murdered.^*
67. Stern v. People, 102 111. 340. 16 Wall. (U. S.) 1; Selser v. Brooks,
In Seely v. People, 27 111. 173, It 3 Ohio St. 302.
was held where a party executes a 69. Stoner v. Milliken, 85 111. 218;
bond as surety with another whose Fork Ins. Co. v. Brooks, 51 ZAe. 506.
name has been forged, he will not 70, Stoner v. Milliken, 85 111. 218;
be liable; but in Stoner v. Millikin, Hern v. Nichols, 1 Salk. 289.
85 111. 218, that case is overruled. 71. United States v. Prescott, 3
And the case of People V. Oregon, 27 How. (U. S.) 578, 11 L. Ed. 734;
111. 29, in so far as it makes distinc- United States v. Morgan, 11 How.
tion in this regard between commer- (U. S.) 154, 160, 13 L. Ed. 643.
cial paper and other instruments, 72. United States v. Dashiel, 4
is overruled in Chicago v. Gage, 95 Wall. (U. S.) 182, 18 L. Ed. 319.
111. 593. 73. Boyden v. United States, 13
68. State v. Pepper, 31 Ind. 76; Wall. (U. S.) 17, 18 L. Ed. 319.
State V. Baker, 64 Mo. 167. 74. United States v. Watts, 1 N.
See, also, Dair v. United Statesi, M. 553,
§ 316 Suretyship and Guaranty. 324
The loss of money bj theft or otherwise, by a public officer, is
no excuse for non-performance of his obligation, and his sureties
are liable for such in paying over the money/''
The condition of the bond is to keep safely the public money,
and such contract is absolutely without any condition, expressed
or implied, and nothing but the payment of all the money when
required can discharge the bond. The responsibility of the of-
ficer is not determined by the law of bailment, but by the condi-
tion of his bond, which jDrovides that the officer will account for
and pay over the moneys to be received. Hence, if the money
is lost or stolen, the principal and his sureties are liable.^®
This general rule is denied in several cases. Thus, in Maine
it is held that if, without fault or negligence on the part of the
officer, he is violently robbed of money belonging to the State or
county, neither he nor his sureties are liable for the money taken.^
And so in Alabama, if a tax collector, without negligence on his
part, is robbed of the public moneys by irresistible force, which
he could not have foreseen or guarded against, he is not liable for
such moneys feloniously taken from him.'^^
75. Illinois. — Thompson v. Broad, Nevada. — State v. Nevin, 19 Neb.
.^0 111. 99. 162, 7 Pac. 650.
Indiana. — Rock v. Stringer, 36 Ind. Ohio. — State v. Harper, 6 Ohio St.
;346. 607.
Iowa. — Union Town v. Smith, 39 Pennsylyania. — German Am. Bank
Iowa 9; Taylor Town v. Morter, 37 v. Auth, 87 Pa. St. 419.
Iowa 550. Texas.— Boggs v. State, 40 Tex. 10.
Louisiana. — State v. Lanier, 31 La. 76. United States. — United States
Ann. 423. v. Thomas, 15 Wall. 337, 21 L. Ed.
Maine. — Monticello v. Lowell, 70 89.
I\Ie. 437. Indiana,— Ingles v. State, 61 Ind.
Massachusetts. — Hancock v. Haz- 212.
zard, 12 Cush. 112. New York.- Muzzy v. Shattuck, 1
Minnesota. — Board of Education of Denio 233.
the Villrge of Pine Island v. Jewell, Ohio. — State v. Harper, 6 Ohio St.
44 ]\Iinn. 427, 46 N. W. 914. 607.
Mission. — State v. Moore, 74 Mo. Pennsylvania. — Commonwealth v.
413. Conly, 3 Pa. St. 372.
Nebraska. — Ward v. School Dist. 77. Cumberland v. Pennell, 69 Me.
No. 15, 10 Neb. 293, 4 N. W. 1001. 35.
New Jersey. — Providence v. I\Ic- 78. State v. Houston, 78 Ala. 361.
Cachron, 35 N. J. L. 328, affirming 33 See, also, United States v. Adams,
N. J. L. 339. 24 Fed. 348; Ross v. Hatch, 5 Iowa
325 Bonds of Public Officers and Agents. § 317
And a similar rule prevails where money or funds are destroyed
by fire while in the custody of an official whose bond is conditioned
for the safe keeping thereof. In such cases the sureties are liable.^*
§ 317. Depositing Public Money in Bank. — When a public
officer deposits the money received in a bank, he becomes a credi-
tor and the bank a debtor, the same as if it was his own money.
His office gives him no right to thus deposit the money. So where
a public officer deposits money in a bank without authority of law,
and the bank thereafter fails and the money is lost, the officer and
his sureties are liable for the same.^** And the fact that the county
does not provide a safe or suitable place where the money of the
officer may be kept, will not release him from liability if he de-
posits it in bank when, by reason of the failure of the bank, it is
lost.^^
In such case the bank is the agent of the officer, and not of the
State or county, and failure of the bank and loss of money make
the officer and his sureties liable.*^
And the fact that the officer used reasonable caution in his selec-
149; Albany Co. v. Dorr, 25 Wend. Nebraska. — Thomssen v. Hall
(N. Y.) 446; HougMon v. Freeland, County, 63 Neb. 777, 89 N. W. 389.
26 Grant Ch. 500. North Carolina. — Smith v. Palton,
79. Smythe v. United States, 188 131 N. C. 396, 42 S. E. 849.
U. S. 156, 23 Sup. Ct. 279, 47 L. Ed. Wisconsin. — Supervisors v. Kaine,
425, affirming 107 Fed. 376, 46 C. C. 39 Wis. 468.
A 354, holding there could be a re- Such a deposit is a conversion.
covery on the bond of the superin- Montgomery County v. Cochran, 121
tendent of the mint at New Orleans Fed. 17, 57 C. C. A. 261.
of the face value of treasury notes 81. Lowry v. Polk County, 51 Iowa
destroyed by fire while in his cus- 50, 49 N. W. 1049.
tody. 82. Kansas. — IMyers v. Board of
80. United States. — Montgomery Com'rs of Kiowa County, 60 Kan.
County V. Cochran, 121 Fed. 17, 57 189, 56 Pac. 11.
C. C. A. 261. Nebraska. — Ward v. School Dist.
Alabama.— Mitchell v. Rice, 132 No. 15, 10 Neb. 293, 4 N. W. 1001.
Ala. 120, 31 So. 498. North Carolina.— Haven v. La-
Illinois. — Swift v. Trustees of thene, 75 L. C. 505.
Schools, 189 111. 584, 60 N. E. 44, af- Pennsylvania. — Hart v. Poor
firming 91 111. App. 221. Guardians, 8iy2 Pa. St. 466.
Missouri.- State v. Moore, 74 IMo. Texas.— Wilson v. Wichita Co., 67
413; State v. Powell, 67 Mo. 395. Tex. 647, 4 S. W. 67.
§ 318
SUEETYSHIP AND GUARANTY.
326
tion of the bank and the depositing of the funds there is held to b©
no defense.^^
In one or two States this rule has been changed. Thus, in South
Carolina such public officer is not liable for the loss of public
funds occasioned by the failure of a bank which was in good stand-
ing at the time the money was placed on deposit by him," thus
adopting the rule applicable to the agent of a corporation.^^ And
in Wyoming, the sureties are not liable for moneys of a public
treasurer deposited in a bank which failed, where the treasurer is
without fault.^^
§ 318. Making Profits on Public Funds. — An officer has no
right to make profits on public funds. So where he receives in-
terest for the loan or use of such funds, such interest will not be-
long to him." So where an officer deposits the funds in a bank
and draws interest on them, he and his sureties are liable for the
interest so received by him from the bank.^^ And so where a city
treasurer loans money to the city under direction of the council,
the sureties on his bond are liable for the interest collected for
which he fails to account.*^
83. Swift V. Trustees of Schools,
189 111. 584, 60 N. E. 44, affirming 91
111. App. 221.
84. York Co. v. Watson, 15 S. C. 1.
85. Chicago, B. & Q. R. Co. v. Bart-
lett, 120 111. 603, 11 N. E. 867.
86. Roberts v. Board of Com'rs
of Laramie County, 8 Wyo. 177, 56
Pac. 915.
87. Cassady v. Trustees, 105 111.
561; Lewis v. Dwight, 10 Conn. 95;
Chicago V. Gage, 95 111. 593; Rich-
mond Co. V. Wandell, 6 Lans. (N.
Y.) 33.
A county treasurer who receiver,
money or anything of value in con-
sideration for the use of the county
funds is liable upon his bond for
that profit, and in an action upon
his bond it is decided in Nebraska
that a petition states facts suffici-
ent to constitute a cause of action
if the pleading, considered as a
whole, in substance charges that
subsequent to the enactment of
chapter 50, laws 1891, the treasurer
received interest upon county funds
deposited by him in various banks,
and did not account therefor. Fur-
nas County v. Evans, 90 Neb. 37,
132 N. W. 723.
That surety cannot speculate to
injury of co-surety, see § 198 herein.
88. Wheeling v. Black, 25 W. Va.
266 ; Perry v. Horn, 22 W. Va. 381.
89. United States v. Broadhead,
127 U. S. 212, 8 Sup. Ct. 1191, 32
L. Ed. 147; Hunt v. State ex rel.
City of Anderson, 124 Ind. 306.
Compare Renfroe v. Colquitt, 74
Ga. 618; State v. Blakemore, 7 Heisk.
(Tenn.) 638.
327 Bonds of Public Officers and Agents. §§ 319, 320
An agreement bj a public officer to deposit money in a bank
represented bj his sureties, upon which interest is to be allowed
him personally, is against public policy and illegal, especially
when in violation of a statute.^**
An illegal agreement by a public officer to receive interest on
public funds deposited in a bank represented by his sureties, may
be tacit as well as express, and its existence may be established
by proof of facts and circumstances showing coincidences which
can be accounted for upon no other assumption than that such an
original understanding existed.®^
§ 319. Interest Recovered After Breach. — Until there is a
breach of the condition of the bond which renders the principal
and his sureties liable, there can be no right to interest on the
account of such breach. And the earliest moment at which any
one becomes liable on account of the breach, is the time of de-
mand for the amount due or the beginning of a suit to recover
the amount which is a sufficient demand f' or at the time when,
by implication of law or by express terms in the bond, it is the
duty of the officer to pay over the money to the owner without
previous demand on his part,^^ or by statute at the time when he
received such money.^*
§ 320. Liability of Sureties as to Payment of Penalties. —
Penalties are never extended by implication, nor are sureties held
beyond what is clearly within the scope and purpose of their un-
dertaking. And where a statute provides for a penalty to be in-
curred for breach of the bond, and does not by express terms nor
90. Ramsay v. Whitbeck, 183 111. Kansas.— Benchfield v. Haffey, 34
550, 56 N. E. 322, Kan. 42.
91. Ramsay v. Whitbeck, 183 111. Massachusetts. — Leighton v.
550, 56 N. E. 322. Brown, 98 Mass. 515; Dodge v. Per-
92. United States v. Curtis, 100 U. kins, 9 Pick. (Mass.) 368; Bank v.
S. 119, 25 L. Ed. 571; United States Smith, 12 Allen (Mass.) 293.
V. Poulson, 30 Fed. 231. >"ebraska. — Thomssen v. Hall
As to when surety is liable for in- County, 63 Neb. 777, 89 N. W. 389.
terest, see §§ 74, 76, herein. 94. Smythe v. United States, 188
93. United States.— United States U. S. 156, 23 Sup. Ct. 279, 47 L. Ed.
V. Arnold, 1 Gall. 348. 425, affirming 107 Fed. 376, 46 C. C.
GeorjrJa. — Frink v. Southern Ex- A. 354.
press Co., 82 Ga. 33, 8 S. E. 862.
§ 321 Suretyship and Guaranty. 328
hy implication make the sureties liable for it, they are not re-
sponsible for such penalty.^''
An officer and his sureties are not liable upon his bond for per-
formance of duties not therein set forth, but he is liable personally
for the non-performance of his duty prescribed by statute to the
party injured to the extent of the damage received.®'' Thus, the
sureties on a county clerk's bond are not liable for his acts in
issuing a license to marry to a minor in violation of law.®^ The
statute may provide for the collection of the penalty from the
principal and his sureties, in which case the sureties are liable
for the breach, including the penalty.^^
§ 321. Estoppel by Judgment. — A judgment is conclusive of
what it necessarily decides only. AVhen introduced in evidence
as an estoppel it cannot be explained or varied by parol evidence.®*
So a judgment fairly obtained against one for whom another has
given an indemnity, is evidence, and conclusive in a suit on the^
indemnity.^ But in a suit on an indemnity bond it must be shown
that the defendant gave the indemnity, that the judgment was-
fairly obtained, and that it was rendered for a matter to which
the indemnity applied. If this is not shown, the judgment is
not conclusive.^ The general doctrine that the judgment against
the jirincipal is conclusive against the surety is founded on special
statutes or a peculiar form of the bond.^ Thus, where the sureties
by express terms of their agreement or by reasonable implication
95. Brooks v. Governor, 17 Ala. As to effect of judgment, see § 65
806; Caspen v. People, 6 111. App. 28; herein.
State V. Baker, 47 Miss. 88; Moretz V. 1. Clark v. Carrington, 7 Cranck
Ray, 75 N. C. 170. (U. S.) 308, 3 L. Ed. 354; Drummond
Compare Wood v. Farvell, 50 Ala. v. Preston, 12 Wheat. (U. S.) 515, 6
546; State v. McDanniel (Tenn. Ch. L. Ed. 712; Graham v. State (Ark.
App.), 59 S. W. 451; Wilson v. State, 1911), 140 S. W. 735; Levick v. Nor-
1 Lea 316. ton, 51 Conn. 461.
96. Holt V. McLean, 75 N. C. 347. 2. Town of New Haven v. Chidsey„
97. Brooks v. Governor, 17 Ala. 68 Conn. 397, 36 Atl. 800.
806. 3. Dane v. Gilmer, 51 Me. 547;
98. Tappan v. People, 67 111. 339. Commonwealth v. Barrows, 46 Me,
99. Kilson v. Farwell, 132 111. 337, 497; Dennie v. Smith, 129 Mass. 143;
23 N. E. 1024; Eaton v. Harth, 45 111. Tracy v. Goodwin, 5 Allen 402; Tat©
App. 355; Ingersoll v. Seatoft, 102 v. James, 50 Vt. 124; Chamberlain v.
Wis. 476, 78 N. W. 576. Godfrey, 36 Vt. 380.
329 Bonds of Public Officeks and Agents. § o2ia
from the very nature and intent of their obligation have stipulated
to pay damages and costs which may be recovered against their
principal, or otherwise to abide the decree or judgment of a court
against the principal, then they are bound by the judgment, though
they have no notice of the suit.*
Although there is a conflict of authority on this subject, estop-
pel of sureties by judgment against their principal, it seems to be
the better opinion that, except in cases where, upon a fair construc-
tion of the contract, the surety may have undertaken to be re-
sponsible for the result of a suit, or where he is made privy to the
suit by notice, and an opporunity is given to him to defend it, a
judgment against the principal alone is, as a general rule, evi-
dence of the fact of its recovery only, and not evidence of any facts
for which it was necessary to find, in order to recover such judg-
ment.^
Of course one may agree to stand in the place of another, and
to be so fully answerable for his debt or unlawful act as that a
judgment against the latter shall conclude the former as to the
amount of such debt or damage.^
§ 321a. Construing Bond With Reference to Statute. — A bond
of a public official is to be construed with reference to the statutes
which may be in force and control as to the duties of the particular
office in connection with which it is given and as to the bonds for
the performance of such duties. So in construing a county deposi-
tary's bond it has been declared in Missouri that to get at the scope
of the bond the statutes pertaining to the subject matter of county
depositaries must be read into the bond and the obligors must be
4. Chamberlain v. Godfrey, 36 Vt. Kansas. — Graves v. Eulkeley, 25
380. Kan. 249; Fay v. Edministon, 25
5. Alabama. — Lucas v. Grovernor, Kan. 439.
6 Ala. 826. Louisiana. — Whitehead v. Wool-
Arkansas. — State V. Martin, 20 folk, 3 La. Ann. 43.
Ark. 629. New Jersey. — DeGreiff v. Wilson,
California.— Pico v. Webster, 14 30 N. J. Eq. 435.
Cal. 202. Pennsylvania. — Gillinan v. Strong,
Georgia.— Taylor v. Johnson, 17 64 Pa. St. 242.
Ga. 521. See in this connection § 65 herein.
Indiana. — Shelby v. Governor, 2 6. Levlck v. Norton, 51 Conn. 461.
Blackf. 289.
f§ 322,32.3
Suretyship and Guaranty.
330
held to contract with a view to those statutes. This does not strike
down the rule that sureties are entitled to stand upon the terms
of the bond, construed strictisshni juris, but is said to put the
matter on a common sense footing by reading the written law into
the bond, discerning the objects to be subserved by such bond and
getting at its true intent and meaning by applying its terms to
the objects sought.^
§ 322. Sheriffs and Constables. — The liability of sheriffs and
constables for their defaults is fixed by the terms of the bond and
the statute in force at the time of the execution and delivery of the
bond.^ But the sureties are not liable for acts of the officer be-
fore the time when the bond took effect.*
§ 323. Scope of Liability. — Constables and sheriffs are liable
for defaults committed under color or by virtue of their office.^"
7. Henry County v. Salmon, 201
Mo. 136, 100 S. W. 20.
8. Freudenstein v. McNier, 81 111.
208.
Pleading held Insufficient in ac-
tion against sheriff and his bonds-
men. Kindell-Clark Drug Co. v.
Myers (Tex. Civ. App. 1911), 140 S.
W. 463.
9. Bryan v. Kelly, 85 Ala. 569, 5
So. 346.
10. Jewell V. Mills, 3 Bush (Ky.)
62; Lowell v. Parker, 10 Met.
(Mass.) 309.
Compare Clancy v. Kenworthy, 74
Iowa 740, 35 N. W. 427.
"To constitute color of office,
such as will render an officer's sure-
ties liable for his wrongful acts,
something else must be shown be-
sides the fact that in doing the act
complained of the officer claimed to
be acting in his official capacity. If
he is armed with no writ, or if the
writ under which he acts is utterly
void, and if there is at the time no
statute which authorizes the act to
be done without process, then there
is no such color of office as will en-
able him to impose a liability upon
the sureties in his official bond."
Chandler v. Rutherford, 101 Fed.
774, 43 C. C. A. 218. Per Taylor, J.,
quoted in Inman v. Sherrill, 29 Okla.
100, 116 Pac. 426.
See, also, as to scope of liability
the sections following, and as to par-
ticular illustrations, §§ 325, 326,
herein.
Expense of advertising notice of
sale of property; not liable for.
Gould v. State, 2 Penn. (Del.) 548, 49
Atl. 170.
Liability for the county levy col-
lected. Whaley v. Commonwealth,
110 Ky. 154, 61 S. W. 35, holding
liable; Commonwealth v. Moren, 25
Ky. Law Rep. 1635, 78 S. W. 432,
holding not liable; Commonwealth v.
Stone, 24 Ky. Law Rep. 1297, 71 S.
W. 428, holding not liable for excess
of tax collected.
Liable for unlawful levy of dis-
tress warrants for delinquent taxes.
531
Bonds of Public Officers and Agents.
§ 323
But their sureties are not liable for acts of the officer which are
not a part of his official duties/^
A sheriff does not act officially in sending photographs of an
licensed person, with description of such person, to various indi-
viduals and police departments," whereby the accused is held out
to the world as a criminal ; hence the sheriff and his sureties are
not liable on his official bond for such acts, though the officer may
Chamberlain Banking House v.
Woolsey, 60 Neb. 516, 83 N. W. 729.
See State v. Barnes, 52 W. Va. 85,
43 S. E. 131, as to when not liable as
to delinquent taxes.
Failure to pay county claims out
of taxes. Commonwealth v. Moren,
25 Ky. Law Rep. 1635, 78 S. W. 432;
Baker v. Fidelity & Deposit Co. of
Maryland, 24 Ky. Law Rep. 2196, 73
S. W. 1025.
United States marshall may be
liable for false arrest and imprison-
ment. See Bailey v. Warner, 118
Fed. 395, 55 C. C. A. 329.
On the bond of deimty sheriff to
save sheriff harmless as to levying
on property, there may be recovery
for unnecessary appointment of
keeper for property levied on. Gor-
man V. Finn, 56 App. Div. (N. Y.)
155, 67 N. Y. Supp. 546, affirmed 171
N. Y. 628, 63 N. B. 1117.
Sureties on the official bond of a
nonstable are only answerable for
the acts of their principal while en-
gaged in the performance of some
duty imposed upon him by law or
for an omission to per^'orm some
such duty. Inman v. Sherrill, 29
Okla. 100, 116 Pac. 426.
Killing bystander in making ar-
rest where a marshal acting in his
official capacity in making an ar-
rest, unlawfully shot and killed a
bystander, whom he suspected of an
intent to interfere with the arrest,
when not necessary or apparently
necessary to save himself from
death or great bodily harm, the of-
ficer and the sureties on his bond
were held liable to the infant chil-
dren of deceased. Martin v. Smith,
136 Ky. 804, 125 S. W. 249.
A deputy sheriff who falsely
claiming to have a warrant for the
arrest of a person not formally
charged with crime of any kind
goes to his house in the night time
and under guise of the authority of
his office, arrests and takes such
person into custody, has committed
an unauthorized and unlawful act
under color of his office, for which
the sureties upon his official bond
are liable in a proper action. Lee
V. Charmley, 20 N. D. 570, 129 N. W.
448.
Though sureties may justify in
different amounts in such a bond,
they will nevertheless be held
equally liable where there is a statu-
tory requirement to that effect.
Board of Commissioners of David-
son Co. V. Dorsett, 151 N. E. 307, 66
S. E. 132.
11. People for Use of Macon
County V. Foster, 133 111. 496, 23 N.
E. 615; State ex rel. Burman v.
Dresher, 101 Mo. App. 636, 74 S. W.
153.
See, also. People v. Pacific Surety
Co. (Colo. 1910), 109 Pac. 961.
Executing process not authorized
to execute; sureties not liable. State
V. Hendricks, 88 Mo. App. 560.
§ '324 Suretyship and Guarany. 332^
be subject to a libel suit. If a sheriff deems it necessary to prevent
the escape of an accused person, he may take the prisoner's pho-
tograph, and ascertain his height, weight and other physical pecu-
liarities, and his name, residence, place of birth, and the like,
without incurring liability on his official bond therefor, his acts
being without personal violence to the prisoner. ^^
It is the duty of the officer to search the prisoner, and take
from him all money or other articles that may be used, as evidence
against him at the trial.^^ The officer may also take from the
prisoner any dangerous weapons, or anything else that the official
may, in his discretion, deem necessary to his own or the public
safety, or for the safe-keeping of the prisoner, and to prevent his
escape ; and such property, whether goods or money, is held sub-
ject to the order of the court.^* And the officer may not only take
any deadly weapon he may find on the prisoner, but also money
or other articles of value found upon him, though not connected
with the crime for which he was arrested, and which cannot be
used as evidence on the trial, by means of which if left in his
possession, he may procure his escape or obtain tools, implements
or weapons with which to effect his escape.^" Sureties are liable for
the official acts of their principal, but not for his acts which are
not a part of his official duties. Thus, where a sheriff goes into
another State and falsely represents that he has extradition papers
and arrests a person, his sureties are not liable for such act, but
they are liable for his acts after coming back to his own State.''^
§ 324. Levying on a Stranger's Property and on Property
Exempt. — The sureties of sheriffs and constables undertakes that
their principal shall faithfully perform all duties imposed upon
their principal by law as such officers. It is as much their duty
to refrain from committing wrongful, oppressive and injurious
12. Diers v. Mallon, 46 Neb. 121, 64 Iowa 101; Holker v. Hennessy, 141
N. W. 722, 50 Am. St. Rep. 598; Fire- Mo. 527, 42 S. W. 1090, 64 Am. St.
stone V. Rice, 71 Mich. 377, 38 N. W. Rep. 524; Closson v. Morrison, 47 N.
885, 15 Am. St Rep. 266. H. 482, 93 Am. Dec. 459.
13. Rusher v. State, 94 Ga. 363, 21 15. Closson v. Morrison, 47 N. H.
S. E. 593, 47 Am. St. Rep. 175. 482; Holker v. Hennessy, 141 Mo,
14. Commercial Exchange Bank v. 527, 42 S. W. 1090.
McLeod, 65 Iowa 665, 19 N. W. 329, 16. Kendall v. Aleshire, 28 Neb.
22 N. W. 919; Reifsnider v. Lee, 44 707, 45 N. W. 167.
.333
Bonds of Public Officers and Agents.
J24:
acts under color of their office as it is to perform their affirmative
official acts in a proper manner. While there are a few decisions
which hold the opposite view, jet the great weight of authority
is that a levy by such officers upon property of a. third person, is
a breach of their bond for which the sureties are liable ;" and it
makes no difference whether the officer makes the levy or attach-
ment knowingly or by mistake.^* And the same rule applies when
the officer levies upon and sells exempt property. ^^
In some jurisdictions it is held that the wrongful levy and sale
of property of a stranger under an execution against another per-
17. United States. — United States
v. Hine, 3 MacAr. 27.
California. — Van Pelt v. Little, 14
•Cal. 194.
Connecticut. — Town of Norwalk v.
Ireland, 68 Conn. 1, 35 All. 804.
District of Columbia. — United
States V. Hine, 3 MacAr. 27.
Illinois. — Horan v. People, 10 111.
App. 21; Wiehler v. People, 68 111,
App. 282.
Iowa. — Charles v. Hoskins, 11
Iowa 329.
Kentucky.— Hill v. Ragland, 24 Ky.
Law Rep. 1053, 70 S. W. 634; Jewell
V. Mills, 3 Bush 62; Commonwealth
V. Stockton, 5 T. B. Mon. 192.
Maine. — Archer v. Noble, 3 Me.
418.
Massachusetts. — Inhabitants v.
Wilson, 13 Gray 385; State v. Fitz-
patrick, 64 Mo. 185.
Michigan. — People v. Merscreau,
74 ]\Iich. 687, 42 N. W. 153.
Minnesota, — Hursey v. Marty, 61
Minn. 430, 63 N. W. 1090.
Missouri. — State v. Moore, 19 Mo.
366; Tracy v. Goodwin, 4 Allen 409.
Nebraska. — Turner v. Killian, 12
Neb. 580, 12 N. W. 101.
New York. — Fobs v. Rain, 39 Misc.
R. 316, 79 N. Y. Supp. 872.
Ohio. — Hubbard v. Elden, 43 Ohio
St. 380; State v. Jennings, 4 Ohio St.
418.
PennsylTania,— Brunott v. McKee,
6 Watts & S. 513; Carmack v. Com-
monwealth, 5 Binn. 184.
Texas.— Holliman v. Carroll, 27
Tex. 23.
Virginia. — Sangster v. Common-
wealth, 17 Gratt. 124.
Washington. — Marfins v. Willard,
12 Wash. 528.
18. California. — Van Pelt v. Little,
14 Cal. 194.
District of Columbia. — United
States V. Hine, 3 MacAr. 27.
Kentucky. — Jewell v. Mills, 3
Bush 62; Commonwealth v. Stock-
ton, 5 T. B. Mon. 192.
Nebraska, — Turner v. Killian, 12
Neb. 580, 12 N. W. 101.
Ohio. — State v. Jennings, 4 Ohio
St. 419.
Texas. — Holliman v. Carroll, 27
Tex. 23.
Virginis. — Sangster v. Common-
wealth, 17 Gratt. 124.
19. Illinois. — Casper v. People, 6
111. App. 28.
Minnesota. — Hursey v. Marty, 61
Minn. 430, 63 N. W. 1090.
Missouri. — State v. Carroll, 9 Mo.
App. 275.
New York. — Grieb v. Northrup, 66
App. Div. 86, 72 N. Y. Supp. 481.
Texas. — Cole v. Cranford, 69 Tex.
124, 5 S. W. 646.
§ ;325
Suretyship and Guaranty.
334
son is a mere trespass, for which the sureties of the officer are
not liable."*
The general rule applies to United States marshals who levy
on a stranger's property/^ and the same rule will apply to coroners
acting as sheriffs/^
§ 325. Officers Liable for Ministerial Duties.— The officer
and his sureties are liable for defaults arising out of the perform-
ance of his ministerial duties, which include those acts which the
law authorizes him to perform, and which are considered to come
within the scope of his office.^ The officer is not civilly liable for
judicial acts.^* But he and his sureties are liable for his acts for
falsely certifying as true, bills rendered against the county, as such
action is a misfeasance f" and in general for overpayment exacted
by him on process,^^ except when he is honestly mistaken in mak-
ing such charge ;" for misconduct as assignee f^ for failure to take
a sufficient bond ;^^ for failure to properly care for security re-
ceived by him in connection with levying an attachment f'^ for fee
bills given him for collection ;"^ for omitting imperative statutory
requirements;^^ for a failure to levy;^' for an escape of prisoner;^*
20. Delaware. — Stcckwell v. Rob-
inson, 9 Houst. 313.
Maryland. — Carey v. State, 34 Md.
105.
New Jersey. — State v. Conover, 28
N. J. L. 224.
New York. — People v. Lucas, 93 N.
Y. 585.
North Carolina. — State v. Brown,
11 Ired. (N. C.) 141.
Wisconsin. — Taylor v. Parker, 43
"Wis. 78; State v. Mann, 21 Wis. 684.
Compare Dishneau v. Newton, 91
Wis. 199, 64 N. W. 879.
21. Lammon v. Feusier, 111 U. S.
17, 4 Sup. Ct. 286, 28 L. Ed. 337.
22. Tieman v. Haw, 49 Iowa 312.
23. McGraw v. Governor, 19 Ala.
89; State v. Powell, 44 Mo. 436.
As to scope of liability, see, also,
§ 323.
24. Scott V. Ryan, 115 Ala. 587, 22
So. 284; Commonwealth v. Tilton, 23
Ky. Law Rep. 753, 63 S. W. 602.
25. People Use of Macon County v.
Foster, 133 111. 496, 23 N. E. 615.
26. Snell v. State, 43 Ind. 359;
Kane v. Railroad Co., 5 Neb. 105.
27. State v. Ireland, 68 N. C. 300.
28. Huddleson v. Polk, 70 Neb. 483,
97 N. W. 624.
29. Love V. People, 91 111. App. 237.
30. Comstock Castle Stove Co. v.
Caulfield (Neb.) 95 N. W. 783.
81. State V. Barnes, 52 W. Va. 85,
43 S. E. 131.
32. Slifer v. State, 114 Ind. 291, 14
N. E. 595, 16 N. E. 623.
33. Habershaw v. Sears, 11 Ore.
431, 5 Pac. 208; Commonwealth v.
Fry, 4 W. Va. 721.
34. People v. Dikeman, 3 Abb.
App. Dec. 520.
335 Bonds of Public Officers and Agents. § 326
for negligent injuries to a prisoner;"^ for a wrongful killing;"'^ for
failure to return process;^'' to deliver goods to the defendant
on discontinuance of the action ;^^ for non-payment of money col-
lected in his official capacity f^ for loss of attachment by his neglect
or voluntary act;^** for damages to property seized, caused by his
neglect ;" for failure to sell property levied upon ;*" for accept-
ing insufficient sureties on a replevin bond ;'*^ for non-payment of
rent, with money received for sale of tenant's goods.*^
On the other hand, he and his sureties are not liable for money
which he had no legal authority, by virtue of his office, to re-
ceive ',*^ because it was not within the scope of his official duties ;^^
nor are the sureties liable for penalties attached to his bond ;"
nor are they liable for acts not within the scope of the officer's
duty,^^ that is, duties not imposed upon him by law."*^
§ 326. Duty to Individuals and to the State. — At common law
where the acts are ministerial and the officer is bound to render
services for compensation for fees or salary, he is liable for mis-
feasance or non-feasance to the party who is injured by them,
35. Aippeal of Jenkins, 25 Ind. App. Pa. St. 439; Bank v. Potius, 10 "Watts
532, 58 N. E. 560. 148; Lyon v. Horner, 32 W. Va. 432.
36. Johnson v. Williams' Adm'r, 41. Witkowski v. Hern, 82 Cal. 604,
23 Ky. Law Rep. 658, 68 S. W. 759, 23 Pac. 132; Tiernan v. Haw, 49
54 L. R. A. 220; Moore v. Lindsay, Iowa 312.
31 Tex. Civ. App. 13, 71 S. W. 298. 42. Wagmire v. State, 80 Ind. 67.
87. Babka v. People, 73 111. App. 43. Carter v. Duggan, 144 Mass. 32,
246; McNee v. Sewell, 14 Neb. 532, 10 N. E. 486.
16 N. W. 827. 44. Governor v. Edwards, 4 Bibb
88. Dennie v. Smith, 129 Mass. (Ky.) 219.
143; Levy v. McDonald, 45 Tex. 220. 45. Governor v. Wise, 1 Cranch
89. Colorado. — Blythe v. People, 142; Turner v. Collier, 4 Heisk.
16 Colo. App. 526, 66 Pac. 680. (Tenn.) 89; Heidenheimer v. Brent,
Kentucky.— Bates v. Smith, 23 Ky. 59 Tex. 533.
Law Rep. 2134, 66 S. W. 714. 46. Walsh v. People, 6 111. App.
Missouri. — State ex rel. Spaulding 204.
V. Peterson, 142 Mo. 526, 39 S. W. 47. State Bank v. Brennan, 7
453, 40 S. W. 1094. Colo. App. 427; State v. Nichols, 39
Nebraska. — Milligan v. Gollen 64 Miss. 318.
Neb. 561, 90 N. W. 541. 48. Greenwell v. Commonwealth,
Texas.— De La Garz v. Corolan, 21 78 Ky. 320; King v. Baker, 7 La.
Tex. 387. Ann. 571; State v. Da,vis, 88 Mo. 585.
40. Commonwealth v. Coutner, 18 49. Commonwealth v. Lentz, 106
Pa. St. 643.
f § 328, 329 Suretyship and Guaranty. 336
but is not civilly liable for judicial acts.^° It is not under his
ministerial functions to preserve the peace. For neglect in the
performance of that duty he is punishable by indictment, and no
-civil action at common law therefor lies against him by persons
who have suffered injury from violence of mobs or insurrection;"
and his sureties have been held not liable for a wrong committed by
him in aiding and abetting a mob in lynching a prisoner committed
to his charge/^ But, as a general rule, where he, within the scope
■of his duties, commits malfeasance, his sureties are liable. Thus,
•where an officer delivers a prisoner, handcuffed, to a deputy whom
he knows to be incompetent, and that a mob is likely to seize and
execute the prisoner, the officer and his sureties are liable for such
neglect.^^ And where a deputy sheriff makes an arrest in the line
of his duty, though illegal because in excess of his duty, his princi-
pal, the sheriff 'and his sureties, are liable.^*
§ 327. Amount of Sureties' Liability. — The surety's liability
is limited to the amount named in the bond, and he cannot be held
in damages for a larger amount.^^ So where the sureties of the
officer have paid the full amount of the bond in damages, they are
no longer liable on the bond.^^ The judgment on the bond is gen-
erally for the penal sum,^^ and the damages assessed according to
the finding of the jury, which may not be the full amount of the
hond. Of course the legal interest may be added to the penalty
irom the date the liability accrued. ^^
§ 328. Liability of Sureties After Term Expires. — The Au-
thorities are not uniform as to the liability of the sureties for de-
faults of their principal after his term expires. One line of de-
cisions holds that where the officer's time expires, his sureties are
50. Scott V. Ryan, 115 Ala. 587, 22 Miss. 7, 23 So. 388; Lee v. Charmley,
So. 284; Commonwealth v. Tilton, 20 N. D. 570, 129 N. W. 448.
23 Ky. Law Rep. 753, 63 S. W. 602. 55. Marcy v. Praeger, 34 La. Ann.
51. South V. Maryland, 18 How. 544.
(U. S.) 396, 15 L. Ed. 433. As to surety being liable only for
52. Cocking v. Wade, 87 Md. 529, the penalty of the bond, see § 74
40 Atl. 104. herein.
53. Asher v. Cabell, 50 Fed. 818. 56. Bathwell v. Shiffield, 8 Ga. 569.
54. Cash V. People, 32 111. App. 57. Turner v. Sisson, 137 Mass.
250; Yount v. Carney, 91 Iowa 559, 191.
60 N. W. 114; Brown v. Weaver, 76 58. Holmes v. Standard Oil Co.,
183 111. 70, 55 N. E. 647.
337 Bonds of Public Officees and Agents. § 329
released from further liability. Thus, where a sheriff is re-elected
and fails to give a new bond, his othce becomes vacant, and his
sureties on his old bond are thereby discharged from liability for
his malfeasance or non-feasance after his re-election and failure
to qualify.^ So where an officer's time expires while he holds
an execution, and he is re-elected and qualifies, and then does not
return the execution according to law, the sureties on the new
bond are liable, but not those on the first bond.^" And so where
it is the duty of an officer at the close of his term to deliver un-
executed processes to his successor, but he does not, and collects
money and uses it himself, his sureties are not liable.^^
But in other jurisdictions the sureties are liable for money
paid to the officer, after the expiration of his office, for processes
executed, which came into his hands before the expiration of his
term of office. ^^ He must finish the executions commenced dur-
ing his term of office.^^ Having received money during his term
of office, it is the officer's duty to pay it over to the proper party,
and if he does not, he and his sureties are liable until he does,
notwithstanding his term of office has expired.^^ The sureties of
the officer are liable only for the acts of their principal during the
term of office or while he is exercising the functions of his office
pursuant to law.®^
§ 329. Sureties' Liability on Bond of Clerks of Court. — Laws
have been enacted compelling clerks of court to give bond for the
faithful performance of their duties. Such bond covers misap-
propriation of funds given into the clerk's hands, and all min-
isterial duties. And the sureties on such bonds are liable for the
performance of duties imposed upon him which come within the
59. Bennett v. State, 58 Miss. 557. 1074; Campbell v. Cable, 2 Sneed
As to officers holding over, see § (Tenn.) 18.
^05 herein. 64. Freeholders v. Wilson, Ifi N.
60. Sherrell V. Gtoodrum, 3 Humph. J. L. 110; Governor v. Mentfort, 1
<Tenn.) 419. Iredell (N. C.) 155; King v. Nichols,
61. State V. Morgan, 59 Miss. 349. 16 Ohio St. 80; Brobst v. Killen, 16
See, also, Clark v. Lamb, 78 Ala. Ohio St. 382; Peabody v. State, 4
406; State v. McCormack, 50 Mo. 568. Ohio St. 387.
62. Elkin v. People, 3 Scam. (111.) 65. People for Use of Macon
207; State v. Roberts, 12 N. J. L. County v. Foster, 133 111. 426, 23 N.
114. E. 615.
63. Clark v. Withers, 2 Ld. Ray.
22
§ 330 Suretyship and Guaranty. 338
scope of his office, whether required by law enacted before or
after the execution of the bond.^^ They are liable for money
legally paid to him;" because such money is received by virtue
of his office.'^* They are also liable for omission, neglect or mis-
conduct of the clerk.^^
When a new bond is given upon demand of the sureties, the
new sureties are not liable for money received and misappropri-
ated before they executed the new bond, unless they so stipulate^
otherwise the old sureties only are liable.^"
§ 330- Compensation of Clerk. — It is often the case that a
clerk's compensation is limited by statute, and he is required to-
66. Weisenborn v. People, 53 111. MissourL — State v. Gideon, 158
App. 32, 58 111. App. 114, 116; Gover- Mo. 327, 59 S. W. 99.
nor V. Rldgway, 12 111. 14. Nebraska. — Bantley v. Baker, 61
Who may sue. Where an official Neb. 92, 84 N. W. 603.
bond runs to the people of a State North Carolina. — Smith v. Palton,
an action on the bond for a misap- 131 N. C. 396, 42 S. E. 849.
propriation of public funds is prop- Texas. — Scott v. Hunt, 92 Tex,
erly brought in the name of the 389, 49 S. W. 210.
State for the use of the board of Wisconsin. — Milwaukee v. United
county commissioners under the States Fidelity & Guaranty Co., 144
statutes in Colorado. Cooper v. Wis. 603, 129 N. W. 686.
People for Use of Board of Com'rs Failure to pay orer naturalization
of Arapahoe County, 28 Colo. 87, 63 fees. Sureties liable for. City and
Pac. 314. County of San Francisco v. Mulcrevy
Where a clerk of a United States (Cal. App. 1911), 113 Pac. 339. .
court misappropriates money placed qs. Swift v. State, 63 Ind. 81; Mor-
in his hands by a private suitor, gan v. Long, 29 Iowa 434; Peebles
there may be a recovery on his bond y. Boone, 116 N. C. 57, 21 S. E. 187;
for such sum. Howard v. United Allen v. Wood, 2 Baxt. (Tenn.) 301.
States, 184 U. S. 676, 22 Sup. Ct. 543, 65). Illinois.— Governor v. Dodd, 81
46 L. Ed. 754. 111. i62.
67. United States.— United States Indiana.— Sullivan v. State ex reK
v. Abeel, 174 Fed. 12, 98 C. C. A. 50. Langsdale, 121 Ind. 342, 23 N. E.
Colorado. — Cooper v. People, 28 iso.
Colo. 87, 63 Pac. 314. Missouri.— State v. Gideon, 158
Indiana.— State v. Flynn, 161 Ind. Mo. 327, 59 S. W. 99.
554, 69 X. E. 159. Nebraska.- McDonald v. Atkins,
Iowa.— Walters-Cates v. Wilkin- 13 Neb. 568, 14 N. W. 532.
son, 92 Iowa 129, 60 N. W. 514. Ohio.— State v. Sloan, 20 Ohio
Minnesota. — Northern Pac. Ry. Co. 327,
v. Owens, 86 Minn. 188, 90 N. W. Tennessee.— Swalling v. King, 5
371, 57 L. R. A. 634. Lea 585.
70. Cullom v. Dolloff, 94 111. 330.
339 Bonds of Public Officers and Agents. §§ 331, 332
account for all fees received by him in excess of that compensa-
tion. The bond in such case is so conditioned, and he and his sure-
ties are liable for the excess collected by him,^^ and he and his
sureties are liable for such excess not turned over to the State.^^
§ 331. Failure to Pay Over to Successor in Office or to Proper
Party, — When the law requires that each successive clerk shall
receive from his predecessor all the records, money and prop-
erty of the office, and the retiring clerk fails to turn money over,
some decisions hold that suit may be instituted against him without
any order of court to pay the money.^^ But the weight of authority
is that the failure of the retiring clerk to pay out moneys to the
parties in interest constitutes no breach of the bond, until there
is an order from the court to pay it, and a demand under that or-
der during the clerk's term of office.^*
It is generally held that it is a condition precedent to the in-
stitution of a suit on the bond of the clerk for failure to pay over
to the proper parties, money collected by him during his term of
office, that there must be an order from the court to pay over
such moneys.^^ But such order is not necessary before suit when
the clerk is guilty of fraud and deceit in failing to make correct
statements and illegally withholding part of the money received
by him.^^
§ 332. Money Paid Into Court on Judgment or by Order of
Court. — Money paid into court on a judgment, is received '" by
the clerk by virtue of his office, and upon his failure to pav over
the money to the proper party, his sureties become liable for this
default.'^^ Eeceipt of such money, whether paid voluntarily to
71. Cullom V. Dolloff, 94 111. 330; 74. State v. Lake, 30 S. C. 43.
Hughes V. People, 82 111. 78. 75. State ex rel. Hickory County
72. United States v. Averlll, 130 U. v. Dent, 121 Mo. 162, 25 S. W. 924.
S. 335, 9 Sup. Ct. 546, 32 L. Ed. 977. 76. State ex rel. Callaway County
73. Peebles v. Boone, 116 N. C. 57, v. Henderson, 142 Mo. 598, 44 S. W.
21 S. E. 187. 737.
Where the statute requires that See, also, Stewart v. Sholl, 99 Ga.
clerks shall imnctually pay over to 534, 26 S. E. 757.
their successor, the omission of the 77. Morgan v. Long, 29 Iowa 434.
word " punctually " from the bond 7S. Bantley v. Baker, 61 Neb. 92,
will not vitiate it. Cooper v. People, 84 n. W. 603; McDonald v. Atkins,
Use of Board of Com'rs of Arapa- 13 Neb. 568, 14 N. W. 552.
hoe County, 28 Colo. 87, 63 Pac. 314.
§ 333 SUEETYSHIP AND GUARANTY. 340
him or by the sheriff on execution, is an official act, and the clerk's
failure to- account for such money is a breach of his bond for which
his sureties are liable.^^ And so when the money is ordered paid
into court for further orders, a failure to account for the same
makes the clerk and his sureties liable.^" Whether such money is
legal tender cannot be raised.^^
§ 333. Delinquincies of Clerks. — The duty of approving bonds
on appeal and his other otticial duties, are given to the clerk of
the court by law. So if the clerk, in such cases, is
negligent, or does not make sufficient inquiry as to the
solvency of the sureties, and approves the bond, he and
his sureties are liable for any damages that result from
such action to the parties in interest;^" and an un-
lawful discrimination between judgment creditors makes his
sureties liable for any damages resulting f^ or for failure to issue
execution ;^^ or a failure to enroll a judgment so as to become a
lien;^^ or to make a proper entry of a judgment;*^ or to make an
erroneous satisfaction of judgment;" or failure to enter case on
the docket f^ or a refusal to issue citation f^ or a failure to trans-
79. State v. Watson, 38 Ark. 96; Fed. 477, 108 C. C. A. 455, affirming
Walters-Cates v. Wilkinson, 92 Iowa Kinney v. United States Fidelity &
129, 60 N. W. 514; Craig v. Governor, Guaranty Co. (U. S. C. C), 182 Fed.
3 Cold. (Tenn.) 244. 1005, and holding no liability for re-
Compare Waters v. Carroll, 9 fusal of clerk to enter a default
Yerg. 102; Hardin v. Carrico, 3 Met. judgment in garnishment proceed-
(Ky.) 261. ings, it not appearing that there
80. Billings v. Teeling, 40 Iowa were any funds of the defendant in
607. the possession of the garnishee.
81. Billings v. Teeling, 40 Iowa Burden of proof is on plaintiff in
607. an action on the bond to show dam-
82. Billings v. Lafferty, 31 111. ages. Kinney v. United States Fi-
318; Field & Co. v. Wallace, 89 Iowa delity & Guaranty Co. (U. S. C. C),
597, 57 N. W. 303; Hubbard v. Swit- 152 Fed. 1005.
zer, 47 Iowa 681; Brock v. Hopkins, gg, ^^^^^ y Do^j^j^ gl 111. 162.
5 Neb. 231. 87. Van Etten v. Commonwealth,
83. Newbern Bank v. Jones, 2 Dev. io2 Pa. St. 596.
Eq. (N. C.) 284. 88. Brown v. Lester, 13 Sm. & M.
84. Badham v. Jones, 64 N. C. 655. (Miss.) 392.
85. Strain v. Babb, 30 S. C. 342. 89. Anderson v. Johett, 14 La. Ann.
Examine United States v. United 624.
States Fidelity & Guaranty Co., 186
341 Bonds of Public Officers and Agents. § 334
mit transcript;'"' or to make a false certificate of record of judg-
ment;^^ or lor making a false certificate of acknowledgment;®^
for a loss of fees to the county by a failure to tax them;'"*^ or for
interest collected on State funds deposited by him.®*
But his sureties are not liable for withholding of moneys which
he had no right to receive in his legal capacity.®'' And if it is not
his duty to approve a bond, his sureties are not liable for his ap-
proval of a defective bond.®® But his sureties are liable upon a
bond executed after the receipt of money, but while unaccounted
for, for non-payment of such money to the proper parties.®^
The clerk is a ministerial officer, and is liable for damages oc-
casioned by his neglect in taking insufficient security on appeal
bonds ; if he exercises a reasonable degree of care in the perform-
ance of his official duty, he is not liable, nor his sureties, even if
the security proves insufficient.®^ What is due care and diligence
in the approval of an appeal bond, is a question of fact.®®
§ 334. Sureties of Justices of the Peace. — Sureties on the bond
of a justice of the peace are not liable for his judicial acts, but
they are liable for his neglect or misconduct of his acts in his
ministerial capacity. His sureties undertake to pay on demand
to every person who may be entitled thereto, all moneys which the
justice may receive in his official capacity, and which he with-
holds. But the sureties do not undertake to pay money which the
90. Collins V. McDaniel, 66 Ga. Where a clerk performs unofficial
203. acts by the direction of the court
91. Ziegler v. Commonwealth, 12 money paid him therefor cannot be
Pa. St. 227. recovered on his bond. State v.
92. Bartels v. People ex rel. Flynn, 161 Ind. 554, 69 N. E. 159.
Goldthwaite, (Wolfe v. People), 152 96. Dewey v. Kavanaugh, 45 Neb.
111. 557, 38 N. E. 898. 233, 63 N. W. 396.
93. State v. Gideon, 158 Mo. 327, 97. State v. Moses, 18 S. C. 366.
59 S. W. 99. 98. Field & Co. v. Wallace, 89 Iowa
94. Vansant v. State, 96 Md. 119, 597, 57 N. W. 303; Brock v. Hop-
53 Atl. 711. kins, 5 Neb. 231.
95. State v. Flynn, 161 Ind. 554, 69 Compare McNutt v. Livingston, 7
N. E. 159; Jenkins v. Lemonds, 29 Sm. & M. (Miss.) 641.
Ind. 294; Bowers v. Fleming, 67 Ind. 99. Field & Co. v. Wallace, 89 Iowa
541; Elliott v. Commonwealth, 144 597, 57 k. w. 303; Brock v. Hop-
Ky. 335, 138 S. W. 300; Bantley v. kins, 5 Neb. 231.
Baker, 61 Neb. 92. 84 N. W. 603;
State V. Enslow, 41 W. Va. 744.
§ 334
Suretyship and Guaranty.
342
justice may obtain in some unlawful manner as by a mere tres-
pass, unless the bond so provides.^
The bond may provide that he and his sureties shall be liable
for acts committed through favor, fraud or partiality.^
When he receives money not in his official capacity and mis-
appropriates it, his sureties are not liable.' Nor are his sureties
liable for the issuance of an execution on a judgment after a vtTit
of certiorari had been granted where, though he had been notified
verbally of the granting of such writ, he had received no official
notice.*
l^or where he accepts money in lieu of the bail required by
law, and fails to properly account therefor can a recovery be had
against them.^ But he and his sureties are liable for notes left
in his hands for collection or for money received as a justice and
not as a mere agent.®
And if the justice does not perform his ministerial acts accord-
ing to law, his sureties are liable for damages that may accrue.^
1. Barnes v. Whitaker, 45 Wis.
204.
The approTcd or refusal to ap-
prove a bond provided for by Ala-
bama Code 1907, § 4281, by a jus-
tice of the peace is a judicial act
within the rule that a judicial of-
ficer is not liable for damages for
erroneous rulings in his judicial ca-
pacity while acting within his juris-
diction. King V Sawyer, 1 Ala. App.
439, 55 So. 320.
2. State V. Flinn, 3 Blackf. (Ind.)
72; Gowing v. Gowgill, 12 Iowa 495.
His liability is to be determined
either from the terms of the bond
or from the provisions of the stat-
ute which define his duties and lia-
bilities. Granger v. Boswinkle (Ind.
App. 1911), 96 N. E. 208.
S. Cressey v. Gierman, 7 Minn.
S98; Commonwealth v. Kendig, 2 Pa.
St. 448.
4. Frohlichstein v. Jordan, 138
Ala. 210, 35 So. 247.
5. Snyder t. Gross, 69 Neb. 340, 95
N. W. 636.
6. Indiana. — Widener v. State, 45
Ind. 244; State ex rel. Gilman v.
Bliss, 19 Ind. App. 662, 49 N. E. 1077.
Iowa. — Bessinger v. Dickerson, 20
Iowa 260.
Kansas. — Brockett v. Martin, II
Kan. 378.
Nebraska. — McCormick v. Thomp-
son, 10 Neb. 484, 6 N. W. 597.
Ohio.— Peabody t. State, 4 Ohio
St. 387.
Pennsylvania. — Ditmars v. Com-
monwealth, 7 Pa. St. 356; Common-
wealth V. Kendig, 2 Pa. St. 448.
7. Place V. Taylor, 22 Ohio St. 317.
AVhen nnder color of his office he
usurps authority not conferred on
him or acts beyond his jurisdiction,
he commits a wrong for which he
and his sureties on his official bond
are liable to any person injured
thereby. Earp t. Stephens, 1 Ala.
App. 447, 55 So. 266.
343 Bonds of Public Officers and Agents. §§ 335, 336
So where be makes a false acknowledgment, and is guilty of fraud,
his sureties are liable for anj injury arising.** He and bis sure-
ties are liable if be issues an attachment without the required
bond, though the injury be nominal;^ of if be neglects to enter
judgment according to law, and injury results to the successful
party ;^** and so if judgment is paid in without the costs of suit,
and be takes out the costs contrary to the orders of the judg-
ment creditor, he and bis sureties are liable for this breach of the
bond."
§ 335- Police Officer. — Police officers are not strictly public
officers whose sureties are liable for their faithful performance
of their duties as pertain to the public at large. So upon general
principles, a party upon whom a policeman commits a tort has no
right for damages against his sureties, for the reason that there
is no privity of contract between him and the officer or bis sure-
ties. Being an entire stranger to the contract, it would require
express legislative authority to give him a right of action thereon.^
'A policeman's bond, however, to " well 'and truly perform each
and all the duties of said office * * * required of him by law,''
covers an unlawful arrest. ^^
§ 336. Sureties of Notary Public. — The object of a notary's
bond is to obtain indemnity against the use of official position for
a wrong purpose, which is done under color of office, and which
would obtain no credit except from its appearing a regular official
act, and within the protection of the bond ; if injury occurs it must
be made good by all those who sign the bond." Therefore, his sure-
ties are liable for his misfeasance in knowingly certifying the ac-
8. McLendon v. American Free- 10. Larson v. Kelly, 64 Minn. 51,
hold Land Mortg. Co., 119 Ala. 518, 66 N. W. 130.
24 So. 721. 11. Hodge v. People, 78 111. App.
». Head v. Levy, 52 Neb. 456, 72 378.
N. W. 583. 12. Alexander r. Ison, 107 Ga. 745,
In issuing an attachment with- 33 s. E. 657.
ont requiring the statutory affidaTit 13. Connelly v. American Bonding
or bond he usurps authority not & Trust Co., 24 Ky. Law Rep. 714, 69
conferred on him and acts beyond S. W. 959.
his jurisdiction and his sureties 14. People v. Butler, 74 Mich. 643,
are liable therefor to any person 42 N. W. 273.
Injured thereby. Earp v. Stephens,
1 Ala. App. 447, 55 So. 266.
§ 336
SUEETYSHIP AND GuAEANTY.
544
knowledgment of a grantor, who is absent and did not appear
before him, and also for certifying an acknowledgment without
reading it;^^ for a false certificate knowingly issued ;^^ and for
neglect to cancel a mortgage."
The holder of a bill is authorized to give full credence to a
notary's certificate of demand and notice, and may look to the
notary for damages resulting from its falsity, when within the
scope of bis official duties/^ But the damages arising from the
notary's failure to perform his official duties must proximately
and directly be the result of such neglect/^
The weight of authority is that when a bank receives negotiable
paper for collection, and upon non-payment by the debtor, the bank
gives it to a notary for protest, the bank's responsibility ceases
provided it exercises reasonable care in the selection of the
notary.^'' There are, however, cases which hold that the bank is
liable for the negligence of the notary employed by it,^^ but the
great weight of authority is the other way.
The purpose is to secure the per-
formance of duties which are incum-
bent upon him to perform. Stork v.
American Surety Co., 109 La. 713,
33 So. 742.
Liable for an act done under color
of office. State v. Ryland, 163 Mo.
280, 63 S. W. 819.
15. People V. Colby, 39 Mich. 456.
16. Scotten v. Fegan, 62 Iowa 236,
17 N. W. 497; Rochereau v. Jones,
20 La. Ann. 82.
The assignee of a mortgage may
rely upon the truth and regularity
of the certificate of acknowledg-
ment to the mortgage and the suf-
ficiency of the notice imparted by
the record of the same; and his
failure to record his assignment
will not bar his right of action
against the notary and his sureties
because of a false acknowledgment
rendering the record thereof insuf-
ficient notice to charge a subsequent
purchaser. Wilson v. Gribben, 152
Iowa 379, 132 N. W. 849.
17. Stork V. American Surety Co.,
109 La. 713, 33 So. 742.
18. Fogarty v. Finlay, 10 Cal. 239;
State V. Meyer, 2 Mo. App. 413 ; Tevis
V. Randill, 6 Cal. 632.
Liable for neglect to give notice
of dishonor of commercial paper.
Williams v. Parks, 63 Neb. 747, 89 N.
W. 395.
19. Oakland Bank of Savings v.
Murfey, 68 Cal. 455, 9 Pac. 843.
20. United States.— Britton v. Nic-
olls, 104 U. S. 757, 766, 26 L. Ed. 917.
Iowa. — First Nat. Bank v. German
Bank, 107 Iowa 543, 78 N. W. 195.
Louisiana. — Baldwin v. Bank, 1
La. Ann. 560.
Massachusetts. — Warren Bank v.
Bank, 10 Cush. 582.
Ohio.— Baker v. Butler, 41 Ohio St.
519.
21. Montgomery Co. Bank v. Bank,
7 N. Y. 459; Ayrault v. Bank, 47 N.
Y. 570.
345
Boi^Ds OF Public Officers and Agents.
§ 337
§ 337' Tax Collector. — Where the law requires absolutely a
ministerial act to be done by a public olticor, a neglect or refusal
to do such act makes him liable to respond in damages to the ex-
tent of the injury arising from his conduct.^^ Hence, the neglect
of a collector of his official duty in collecting taxes makes his
sureties liable upon his bond.^^ If the statute authorizing the
levying and collection of taxes is unconstitutional or otherwise
invalid, the collector cannot be permitted to retain the money
illegally collected under color of his office.^* And the failure to pay
over such money constitutes a breach of the condition of the bond
and the principal and sureties are liable.^ Xor is it any defense
where taxes have been collected and converted that no warrant
was issiied for their collection or that the warrant under which
the collector acted was defective.^^ The sureties are liable for
funds misappropriated by their principal.^^ Thus, where a col-
22. Amy v. Supervisors, 11 "Wall.
(U. S.) 136, 20 L. Ed. 101.
23. People v. Smith, 123 Cal. 70,
55 Pac. 765; Palmer v. Pettingill, 6
Idaho 346, 55 Pac. 653.
Rece!i»ts where taxes not col-
lected. Where taxes have not been
collected by the tax collector who
issues receipts therefor, his sureties
are liable. "Ward v. Marion County,
26 Tex. Civ. App. 361, 63 S. W. 155, 62
S. W. 557.
24. Loaisiana. — Mayor v. INIerritt,
27 Lp. Ann. 568.
Korth Carolina. — TiIcGuire v. "Wil-
Vpms, 123 N. C. 349, 31 S. E. 627;
Clifton V. "Wynne, 80 N. C. 145.
Pennsylvania. — Connell v. Craw-
'"''(1 Co., 59 Pa. St. 196; Moore v.
Ml'-sheny City, 18 Pa. St. 55.
Tennessee. — McLean v. State, 8
Heisk. 22.
"Vermont. — Pawlet v. Kelley, 69 Vt.
398, 38 Atl. 92.
25. Boothby v. Giles, 68 Me. 160;
Brunswick v. Snow, 73 Me. 179;
Sandwich v. Fish, 2 Gray (Mass.)
298; Tunbridge v. Smith, 48 Vt. 648;
Montpelier v. Clarke, 67 Vt. 479, 32
Atl. 252.
26. Lake County v. Neilon, 44 Ore.
14, 74 Pac. 212.
27. King V. United States, 99 U.
S. 229, 25 L. Ed. 373; Soule v. United
States, 100 U. S. 8, 25 L. Ed. 536;
United States v. Stone, 106 U. S. 525,
1 Sup. Ct. 287, 27 L. Ed. 163; "Wal-
ker County V. Fidelity & Deposit Co.
of Maryland, 107 Fed. 851, 47 C. C.
A. 15; Anderson v. Blair, 118 Ga.
211, 45 S. E. 28.
See Lake County v. Neilon, 44 Ore.
14, 74 Pac. 212.
Where the bond given is a lien on
the real estate of the principal and
sureties, the proper official may, on
default, proceed in equity to fore-
close the lien. Chatfield v. Camp-
bell, 35 Misc. R. (N. Y.) 355, 71 N.
Y. Supp. 1004, holding that the town
supervisor may so act.
Knowledg:e of the person appoint-
ing the collector of previous defal-
cations by him is held not to relieve
the sureties. Commonwealth v.
Jimison, 205 Pa. St. 367, 54 Atl. 1036.
§ 338 Suretyship and Guarivnty. 346
lector is continued for a second term, gives a new bond, and pays
arrearage of the first term with money collected in his second
term this is a misappropriation of funds, and the sureties are
liable, the obligee not knowing when receiving the money of its
misappropriation.^
The liabilities of the sureties are limited by the terms of the
bond, and cannot be extended beyond the reasonably necessary
import of the same,^* and the bond, in the absence of such an intent
clearly evidenced therein, will not be extended so as to cover
prior defalcations.^'' The collector and his sureties are liable for
the uncollected taxes, unless some valid excuse is shown for their
non-collection.^^
Where the bond provides that the taxes shall be settled by a
certain day, but such settlement is not made by the collector, a
demand on him for settlement is not necessary before action is
brought. ^^ It would be otherwise if the bond contained no such
provision, and demand should be made before bringing action. ^^
In an action on the bond the sureties are estopped to deny that
their principal was collector and therefore it is immaterial whether
he was an officer de jure or de facto.^*
§ 338. Subrogation of Surety on Official Bond. — Sureties on
the bond of public officers being compelled to make good the de-
faults of their principal will, by the fact of payment, become
equitable assignees and be subrogated to the position of the State
in respect to all its securities, liens and priorities for the purpose
of enforcing reimbursement from their principal.^^ And it is
28. Frownfelter v. State, 66 Md. 81. Montpelier v. Clarke, 67 Vt.
80; Colrain v. Bell, 9 Mete. (Mass.) 479, 32 Atl. 252.
499; Commonwealth v. Knettle, 182 82. McGiiire v. Williams, 123 N. C.
Pa. St. 176, 38 Atl. 13; Carpenter v. 349, 31 S. E. 627.
Corwith, 62 Vt. Ill, 22 Atl. 417; 83. Commonwealth v. McClure, 20
Lyndon v. Miller, 36 Vt. 329; Gwynne Ky. Law Rep. 1568, 49 S. W. 789.
V. Burnell, 7 CI. & Fin. 572. 84. Town of Seabrook v. Brown,
See, also, State v. Sooy, 39 N. J. L. 71 N. H. 618, 51 Atl. 175.
539; Stone v. Seymour, 15 Wend. (N. 85. Myers v. Miller, 45 W. Va. 595,
Y.) 20; State v. Smith, 26 Mo. 226. 32 S. E. 276.
29. State v. Montague, 34 Fla. 32; As to subrogation of sureties to
U. S. V. Cheesman, 3 Saw. 424. creditor's rights, see §§ 152 et seq.
30. Lake County v. Neilon, 44 Ore. herein.
14, 74 Pac. 212.
347 Bonds of Public Officers and Agents. § 338
immaterial how the State's right ©f priority originated, whether
by the common law, positive statute or contract; once established
that it is entitled to rank as a preferred creditor, the same
preference will be upheld by way of subrogation for the benefit
of the surety.^* But subrogating a surety on a recognizance to
the peculiar remedies which the government enjoys is against
public policy, and tends to subvert the object and purpose of the
recognizance, and cannot therefore be allowed." And so the
surety may lose his right of subrogation by laches. Thus, where
a surety has a secret lien which is held unasserted until holders
of legal rights have been thrown off their guard and lose their
opportunity to protect themselves, he cannot then bring it for-
ward to the injury of those who had no notice.^^
S6. United States. — Hunter r. Maryland. — Oram t. Wrightson, 51
United States, 5 Pet. 173, 8 L. Ed. Md. 34.
86. PennsylTania. — Boltz, Estate of,
Alabama.— Turner v. Teague, 7S 133 Pa. St. 77, 19 Atl. 303.
Ala. 554. Virginia, — Robertson v. Trigg, 32
Georgia. — Irby v. Livingston, 81 Gratt. 76.
Oa. 281, 6 S. E. 591. West Tirginia.— Hawker t. Moore,
Illinois.— Hook v. Richeson, 115 40 W. Va. 49, 20 S. E. 848.
111. 431, 5 N. E. 98; Crawford r. S7. United States v. Ryder, 110 U.
Richeson, 101 111. 351. S. 729, 4 Sup. Ct. 196, 28 L. Ed. 308.
S8. Gring^B Appeal, 89 Pa. St. 336.
§ 339 Suretyship and Guaeanty. 348
CHAPTER XIII.
GUAEANTY.
SicnoN 339. Definition.
340. Classification of Guaranties as to Their Nature.
341. Consideration.
342. Executory Consideration.
343. Moral Obligation.
344. As to Consideration, Guaranties are of Two Kinds.
345. Guaranties Where the Consideration is Entire.
346. Guaranty Where the Consideration Passes at Different
Times and is Separable.
347. Indorsement Before and After Maturity of Note.
348. Offer and Acceptance.
349. Guaranty of Payment.
350. Conditional Guaranty.
351. Guaranty of Illegal Contracts.
352. Default of Payment — Notice to Guarantor.
353. Notice of Default,
354. Continuing Guaranty.
355. Letters of Credit May Be a Continuing Guaranty.
356. Construction of Contract.
357. Negotiability of a Guaranty.
358. Negotiabilty of a Guaranty Under Seal.
359. Guaranty of Collection.
360. What is Due Diligence.
361. Discharge of Guarantor.
362. Discharge by Change in the Principal Contract.
363. Discharge by Extension of Time.
364. Discharge by Release or Negligent Loss of Securities.
365. By Fraud and Duress.
366. Guaranty Covers Defects in the Original Contract — Failure
of Consideration.
367. Revocation of a Continuing Guaranty.
368. Death of Guarantor.
369. Release of Co-guarantor.
370. What Law Governs.
371. Statute of Limitations.
372. Payment of Debt by Guarantor.
Sec. 339- Definition. — A guaranty is an undertaking by one
person that another shall perform his contract or fulfill his obli-
gation, and if he does not the guarantor will do it himself.^ In
1. Gridley v. Capen, 72 111. 13; At- Gnaranty defined. See Miller v.
wood V. Lester, 20 R. I. 660. Lewiston National Bank, 18 Idaho
349 GUAEANTY. § 339
a legal and commercial sense it is an undertaking to be answerable
for the payment of some debt or the due performance of some
contract or duty by some person who himself remains liable for
his own default.^ A guaranty is an undertaking as in case of
suretyship, but a conditional one, to answer for the debt or default
or miscarriage of another. Accordingly in a conditional guaranty
the guarantor contracts to pay if, by the reasonable exercise of
•due diligence, the debt cannot be made out of the principal.^ The
liability of a guarantor is co-extensive with that of his principal,
unless it is expressly limited.*
While the undertaking of a guarantor is technically different
from that of a surety,^ yet the contract of guaranty is the obliga-
tion of surety.^ Both are accessory ; a guaranty is a scondary, and
suretyship a primary, obligation.^ The undertaking of a guaran-
tor is his own separate, independent contract, distinct from that of
the principal debtor.^
The contract of an indorser is primary, and that of transfer;
a guaranty is that of a security f a guarantor is held to a stricter
measure of responsibility.^**
A guaranty may be retrospective in its operation so as to em-
brace debts or contracts where it appears that such was the inten-
tion of the parties f'^ but such construction can only be given to a
guaranty, where by express words, or by necessary implication, it
124, 108 Pac. 901; Bailey v. Miller, 6. Davis v. Wells, 104 U. S. 159,
45 Ind. App. 475, 91 N. E. 24; North- 26 L. Ed. 686.
ern State Bank of Grand Forks v. 7. Hooper v. Hooper, 81 Md. 155,
Bellamy, 19 N. D. 501, 125 N. W. 888; 31 Atl. 508.
Mott Iron Works v. Clark, 87 S. C. Contract of grnarantor a secondary
199, tj9 S. E. 227. obligation within N. D. Rev. Codes,
2. Andrews v. Watson, 26 Wend. 1905, § 6494. Northern State Bank
(N. Y.) 425, 435. of Grand Forks v. Bellamy, 19 N. D.
3. Welsh v. Ebersole, 75 Va. 651, 509. 125 N. W. 888.
656. 8. Abbott v. Brown, 131 111. 108, 22
4. Richardson v. Allen, 74 Ga. 719 ; N. E. 813.
Little V. Bradley, 43 Fla. 402, 31 So. 9. First Nat. Bank of San Diego v.
342; Hooper v. Hooper, 81 Md. 155, Babcock, 94 Cal. 96, 29 Pac. 415.
31 Atl. 508. 10. Arents v. Commonwealth, 18
As extent of liability under con- Graft. (Va.) 750.
tract, see § 356 herein. 11. Hammond v. Johnson, 20 111.
5. Kramp v. Hatz, 52 Pa. St. 525. 367; People v. Lee, 104 N. Y. 441. 10
N. E. 884.
§ 340 Suretyship and Guaeanty. 350
clearly appears to be the intent of the parties to embrace past
contracts. ^'^
§ 340. Classification of Guaranties as to Their Nature. —
Guaranties are classified into general or special, limited or con-
tinuing, absolute or conditional. Upon the terms of a general
contract any person is entitled to advance money or incur liability
upon compl3'ing with the provisions, and may then enforce th&
same as though he was specially named therein. ^^ A special
guaranty is addressed to a particular individual or firm, and
such individual or firm alone has the right to act upon it/* A
limited or continuing guaranty may be for a single act or con-
tinuing.^^ Where the guaranty looks to a future course of deal-
ing for an indefinite time, or a succession of credits to be given,
it is to be deemed a continuing guaranty.^^ Guaranties without
limitation as to time or amount will be considered to refer to a
single transaction.^^ An absolute guaranty is an unconditional
promise of pajinent or performance on default of the principal;
and the guarantee may proceed at once against the guarantor on
default of the principal without prior notice to the guarantor. A
guaranty is conditional where there is some extraneous event be-
yond the mere default of the principal by which the guaranty be-
comes binding, and the liability does not attach immediately upon
non-payment or non-performance of the principal. It is neces-
sary to fix the liability on the guarantor that there should be
notice or acceptance of the guarantee, and notice of the principal's
12. People V. Lee, 104 N. Y. 441, 10 15. Birdsall v. Heacock, 32 Ohio
N. E. 844; Pritchett v. Wilson, 39 Pa. St. 184.
St. 421. 16. Twohy v. McMurran, .57 Minn.
See § 4. 242, 59 N. W. 301.
See, also, National Bank of Com- See, also. Merchants' National
merce v. Rockefeller, 174 Fed. 22, 98 Bank v. Cole, 83 Ohio St. 50, 93 N. E.
C. C. A. 8, holding that the general 465.
rule is that guaranties are per- 17. Knowlton v. Hersey, 76 Me.
spective and not retrospective. 345.
13. Evansville Nat. Bank v. Kauf- These are known as " unlimited "
man, 93 N. Y. 27; Wheeler v. May- guaranties. Merchants' National
field, 31 Tex. 395. Bank v. Cole, 83 Ohio St. 50, 93 N. E,
14. Peoria Second Nat. Bank v. 465.
Diefendorf, 90 111. 396; Mitchell v.
Railton, 45 Mo. App. 27.
351 GUAEANTY. § 341
default and reasonable diligence in exhausting reasonable reme-
dies against the principal.^'*
§ 341. Consideration. — The contract of guaranty not under
seal requires a consideration to support it, though the considera-
tion need not be in money ; so a consideration may arise from some
injury or inconvenience to one party, or from some benefit to the
other/^ If the debt of the principal debtor be pre-existing, then
there must be a new and distinct consideration to sustain the
promise of the guarantor. But if the obligation of the principal
debtor be founded upon a valuable consideration, and after it was
incurred, or before that time, the promise of the guarantor is
made and entered into as the inducement for giving the guaranty,
then the consideration for the principal debt is considered as a
valuable consideration also for the undertaking of the guarantor.^**
If the promise is in the nature of an original undertaking to pay
a debt to a third party and is founded upon a valuable considera-
tion received by the promisor himself, it is sufficient.^^
The letting of premises by the owner after he had refused ta
let them unless another guaranteed the payment of the rent is a
18. City Bank v. Hopson, 53 Conn. 111. Aipp. 548; Hirsch v. Carpet Co.,
453, 5 Atl. 601; Beardsley v. Hawes, 82 111. App. 234.
71 Conn. 39, 40 Atl. 1043. Kentuoky.— Case Threshing Mach.
A reply in writing to a letter ask- Co. v. Patterson, 137 Ky. 180, 125 S.
ing for a guarantee which states W. 287.
that the writer will be responsible Massachusetts. — Bickford v. Gibbs,
for such person for the amount 8 Cush. 156.
specified is an absolute guaranty. Missouri. — Obert Brewing Co. v.
Acorn Brass Co. v. Gilmore, 142 111. Wabash R. Co., 145 Mo. App. 30, 129
App. 567. S. W. 991; Adams v. Huggins, 78 Mo.
Default alone binds the guarantor App. 219.
in case of an absolute guaranty New Jersey. — Conover v. Still-
while in case of a conditional guar- well, 34 N. J. L. 54.
anty it is necessary to show insol- Wisconsin. — First National Bank
vency of the principal. Pulaski v. Winnebago County A. & H. Ass'n,
Stave Co. v. Millers' Creek Lumber 141 Wis. 476, 124 N. W. 656.
Co., 138 Ky. 372, 128 S. W. 96. 20. Bassheans v. Rowe, 46 Mo. 54.
19. Florida.— Robinson v. Hyer, 35 21. Wilson v. Bevans, 58 111. 232;
Fla. 544, 17 So. 745. Brown v. Brown, 47 Mo. 130; Baker
Illinois.— Richner v. Kreuter, 100 v. Bradley, 42 N. Y. 316; Uhler v.
Bank, 64 Pa. St. 406.
§ 341 Suretyship and Guaranty. 352
siiflicient consideration for the latter's guaranty,^" as is also ac-
ceptance of an order to pay money and ttie payment of same/" a
loan of money ,^* an extension of credit/^ and the making of fur-
ther advances after declining to do so.^^
Extension of time to pay the debt is a sufficient consideration
to support the guaranty of a stranger of the payment of the new-
obligation.^^ So a forbearance by the creditor to sue the principal
dehor for a debt due is a sufficient consideration to support the
guaranty.^^ And the extension of time for the performance of
an agreement or for the payment of a debt forms a sufficient con-
sideration to support the contract.^* But a promise to forbear
to prosecute a claim which has no foundation forms no considera-
tion.^" An agreement to withdraw a suit against the principal is
a sufficient consideration.^^ The promise to pay the debt of an-
other in consideration of forbearance is not binding unless ac-
cepted by the other party. There must be a mutual agreement,
the consideration being a promise for a promise ; both parties
must be bound.^^
The promise to forbear will be void unless it provides for some
actual de]ay and affords a means of determination of how long
that delay is to continue,^^ because a promise to forbear in gen-
eral, without adding any particular time, is to be understood a
22. Garland v. Gaines, 73 Conn. 111. 209; Fuller v. Scott, 8 Kan. 25;
€62, 49 Atl. 19. First National Bank v. Taylor (Utah.
23. Republic Mfg. Co. v. Fuchs, 151 1911), 114 Pac. 529.
111. App. 260. 30. Cabot v. Haskins, 3 Pick.
24. Lompoc Valley Bank v. Steph- (Mass.) 83.
enson, 156 Cal. 350, 104 Pac. 449. Compare Hamaker v. Eberly, 2
25. McDonald v. Tootle Weakley Binn. (Pa.) 506.
Millinery Co., 64 Neb. 577, 90 N. W. See Bvllen v. Morrison, 98 111. App.
547. 669.
26. Moore Lumber Co. v. William- 31. Worcester Sav. Bank v. Hill,
Bon, 110 Va. 775, 67 S. E. S74. 113 Mass. 25; Harris v. Vendbly, L.
27. Faulkner v. Gilbert, 57 Neb. R. 7 Exch. 235.
544, 77 N. W. 1072. 32. Shupe v. Galbreathe, 32 Pa. St.
28. Standard Supply Co. v. Finch, 19; Clark v. Russel, 3 Watts. (Pa)
154 N. C. 456, 70 S. E. 745; Alder- 213; Snyder v. Leibengood, 4 Pa. St.
Bhaw V. King, 2 Hurl. & N. 517. 305; Semple v. Pink, 1 Exch. 74.
29. McMicken v. Safford, 197 111. 33. Filing v. Vanderlyn, 4 Johns.
540, 64 N. E. 540, affirming 100 111. Ch. (N. Y.) 237; Shupe v. Galbreathe,
App. 102; Underwood v. Hossack, 38 32 Pa. St. 19.
a^'d GUAHANTY. § 342
total forbearance.^^ While the promise to pay the debt of an-
other must be accepted by the other party to make it binding,
yet acts of the creditor may show that he has relied upon the
promise, though he made no declaration to that effect, and hence,
the promise is binding.^''
A consideration arising from some injury or inconvenience to
one party or from some benefit to the other is recog-nized a legal
consideration. Thus, if A, for the purpose of strengthening the
credit of B, agrees with to become responsible for goods to be
sold in the future by C to B, and O accepts the agreement and
acts upon it by selling goods to B, there is every element of a valid
consideration, because C has parted with his property upon the
faith of A's promise, and B, at A's express or implied request,
has obtained a benefit by means of such promise.^'' There must
be a consideration ;" a seal imports a consideration.^^
Although it is a general rule at common law, a seal imports a
consideration, yet equity disregards such form and looks to the
reality, and requires an actual consideration, and permits the
want of it to be shown, notwithstanding the seal. If at common
law the seal imports unimpeachable consideration, it is in cases
where the seal is itself legally affixed in the first instance, and not
in cases of forgery or without any lawful authority.^'
§ 342. Executory Consider.ation. — As a general rule the guar-
anty of a pre-existing debt of another is not binding on the guar-
34. Hamaker v. Eberly, 2 Binn. 13 N. E. 10; Train v. Gold, 5 Pick.
(Pa.) 510; Clark v. Russel, 3 Watts. 380.
(Pa.) 213. New York.— Beakes v. Da Cunha,
35. Downing v. Funk, 5 Rawle 126 N. Y. 293, 27 N. E. 351.
(Pa.) 69; Weaver v. Wood, 9 Pa, St. Utah. — Armstrong v. Cache Valley
220. Land & Canal Co., 14 Utah 450, 48
36. Arkansas.— Williams v. Per- Pac. 690.
kins, 21 Ark. 18. 37. Klein v. Currier, 14 111. 237;
California. — McDougald v. Argon- Tenney v. Prince, 4 Pick. (Mass.)
aut Land & Improvement Co., 117 385; Macfarland v. Heim, 127 Mo.
Cal. 87, 48 Pac. 1021. 327, 29 S. W. 1030.
Florida.— Ferst v. Blackwell, 39 38. Snyder's Estate, 7 Kulp (Pa.)
Fla. 621, 22 So. 892. 409; Antisdel v. Williamson, 37 App.
Massachusetts.— Lennox v. Mur- Div. (N. Y.) 167, 55 N. Y. Supp. 1028.
phy, 171 Mass. 370, 50 N. E. 644; 39. Hale v. Dresser, 73 Minn. 277,
Wellington v. Apthorp, 145 Mass. 69, 76 N. W. 31.
See §§ 344 et seq.
23
§ 342 SUKETYSIIIP AND GuAKANTY. 354r
alitor without a new and independent consideration to support it ;
but when the guaranty, though executed after the debt was created,
is connected with, and the inducement of, the original credit or
the result of a previous promise by the guarantor, upon the faith
of which the credit was obtained by the original debtor, it re-
quires no new or independent consideration to render it valid,
but it is a part of the original transaction and the consideration
upon which it was given.*"
Where the guaranty is made at the same time with the prin-
cipal contract, and becomes an essential ground of the credit given
to the principal, there need not be any other consideration than
that moving between the creditor and the original debtor under
the principal contract/^ In such case the guarantor's contract be-
ing contemporaneous with the principal contract, no separate con-
sideration is required, as the consideration of the principal con-
tract will support that of the contract of guaranty.*^ And where
between the time of the execution of the original contract and its
delivery, performance thereof is guaranteed, the consideration of
the original contract will support the contract of guaranty/^ But
where the guaranty is made subsequent to the creation of the debt
and was not an inducement to it, the consideration of the original
debt will not support it, so there must be some further considera-
4:0. Illinois. — Laingor v. Lowen- Missouri. — Glenn v. Lehnen, 54
thai, 151 111. App. 599. Mo. 45.
Maine. — Gillingham v. Boardman, New York. — "Wood v. Tunnicliff, 74
29 Me. 79. N. Y. 38.
Mississippi. — Standley v. Adames, 42. Chicago Sash, Door & Blind
36 Miss. 434. Mfg. Co. v. Haven, 195 111. 474, 63 N.
New York. — McNaught v. Mc- E. 158, affirming 96 111. App. 92
Claughry, 42 N. Y. 22. Bullen v. Morrison, 98 111. App. 669
Pennsylvania, — Pam v. Stack- Duncauson v. Kirtz, 90 111. App. 15
house, 38 Pa. St. 302. Cahill Iron Works v. Pemberton, 48
41. Illinois.— Dillman v. Nadel- App. Div. (N. Y.) 468, 62 N. Y. Supp.
hoffa, 160 111. 121, 43 N. E. 378. 944, affirmed 168 N. Y. 649, 61 N. E.
Kansas.— Winans v. Gibbs & Stan- 1128.
ett Cable Mfg., etc., Co., 48 Kan. 777, As to consideration for contracts
30 Pac. 163. of suretyship, see §§ 35 et seq. here-
Massachnsetts. — Lennox v. Mur- in.
phy, 171 Mass. 370, 50 N. E. 644. 43. Providence Mach. Co. v. Brown-
Minnesota.— Osborne & Co. V. Gul- ing, 68 S. C. 89, 46 S. E. 550; Foles &
likson, 64 Minn. 218, 66 N. W. 965. Jenks Mach. Co. v. Browning, 68 S.
C. 13, 46 S. E. 545.
355 GuAEANTY. §§ 343,345
tion having an immediate respect to such liability;^* and it is
sufficient that there be something moving toward the principal
debtor. ^^
§ 343. Moral Obligation. — The promise to pay the debt of
another, based upon a moral obligation, is invalid. Thus, the
fact that goods were bought for the use of a certain person, does
not afford a moral obligation as will support his parol promise
to pay for them, where he is under no legal obligation to pay for
the same, and no arrangement is made for discharging the pri-
mary debtor,^® because an express promise can only revive a pre-
cedent valid consideration which might have been enforced at law,
through the medium of an implied promise, had it not been sus-
pended by some positive rule of law, but it can give no original
right of action if the obligation on which it was founded never
could have been enforced at law, though not barred by legal maxim
or statute provision.*^
A moral obligation will not support a voluntary written guar-
anty, unless there was once a legal consideration.^^
§ 344. As to Consideration, Guaranties are of Tv^^o Kinds. —
Guaranties may be classified as follows: (1) Where the consider-
ation passes wholly at one time; such are not terminated by death.
( 2 ) Where the consideration passes at different times and is separ-
able ; such are revocable, and are terminated by death and notice
of death.^»
§ 345. Guaranties Where the Consideration is Entire. — In
this class of guaranties the consideration is entire, and passes
wholly at one time: Thus, where a person enters into a guar-
anty that, in consideration of the lessor granting a lease to a third
44. Parkhurst v. Vail, 73 111. 343; 47. Wennall v. Adney, 3 Bos. & P.
Briggs V. Latham, 36 Kan. 205, 13 247, 253, note.
Pac. 129; Peck v. Harris, 57 Mo. 48. Martin's Estate, 131 Pa. St.
App. 467; Draper v. Snow, 20 N. Y. 638, 18 Atl. 987; Paul v. Stackhouse,
331. 38 Pa. St. 302.
45. Bickford v. Gibbs, 8 Cush. 49. National Eagle Bank v. Hunt,
(Mass.) 156; Dahlman v. Hammel, 16 R. I. 148, 13 Atl. 115.
45 Wis. 466. See § 346.
46. Hendricks v. Robinson, 56
Miss. 695.
§ 346 Suretyship and Guaranty. 356
person, ho will be answerable for the performance of the coven-
ants, the moment the lease is granted, there is nothing more for
the lessor to do; and such guaranty as that of necessity runs
throughout the duration of the lease. The lease is intended to be
a guarantied lease and it is impossible to say that the guarantor
could put an end to the grant at his pleasure, or that it could be
put an end to by his death contrary to the intention of the par-
ties.^'' And of course if the guarantor dies his estate is responsible
for the defaults of his principal. So where a party, in considera-
tion that an employer would take into his service a certain indi-
vidual as collector and clerk in a responsible position, would be
answerable for the fidelity of the employee so long as he con-
tinued in that service, such guaranty cannot be put an end to so
long as the service continues. The consideration is admitting the
employee into the service of the employer in that capacity, and
that being done, it becomes a guarantied service so long as the
clerk, or employee, remains in that position. The guaranty, there-
fore, necessarily continues until tlie service is ended."^ In this
class of cases, the consideration passes entire at the time, and is
not therefore severable.^^
§ 346, Guaranty Vvhere the Consideration Passes at Differ-
«ent Times and is Separable. — In this class of cases the considera-
tion passes at different times, and is therefore separable or di-
visible. Such guaranty may be revoked as to subsequent transac-
tions by the guarantor upon notice to that effect, and it determines
by his death and notice of that event.^ These cases are generally
where a guaranty is given to secure the balance of a running ac-
count at a bank, or the balance of u money account for goods sup-
50. Lloyds v. Harper, 16 Ch. D. New York. — Kernochan v. Murray,
290. Ill N. Y. 306, 18 N. E. 686; Hall v.
51. Calvert v. Gordon, 3 Man. & Ochs, 34 App. Div. 103, 54 N. Y.
Ry. 124. Supp. 4.
52. Alabama. — Moore v. Wallis, 18 53. Menard v. Scudder, 7 La. Ann.
Ala. 458. 385; Hyland v. Habich, 150 Mass.
Illinois.— Rapp v. Ins. Co., 113 111. 112, 22 N. B. 765; Jordan v. Dob-
390. . bins, 122 Mass. 168; National Eagle
Iowa.— Royal Ins. Co. v. Davies, 40 Bank v. Hunt, 16 R. I. 148, 13 Atl.
Iowa 469. 115; Offord v. Davies, 12 C. B. (N. S.)
Jffaine. — Green v. Young, 8 Me. 14. 748; Coulthart v. Clementson, 5 Q.
B. Div. 42.
357 GUAEANTY. § a-iT
plied. In these cases the consideration is supplied from time to
time, and it is reasonable to hold, unless the guaranty stipulates
to the contrary, that the guarantor may at any time terminate the
guaranty. He remains answerable for all the advances made
or of goods supplied upon his guaranty before notice to terminate
it is given. A notice of the death of the guarantor is notice to
terminate the guaranty, and has the same effect as a notice given
in the lifetime of the guarantor that he w^ould put an end to it.^*
In England such guaranty is terminated, not by the death of the
guarantor, but by notice of his death.^^ But in the United States
the death of the guarantor operates as a revocation of it, and the
person holding it cannot recover against his executor or adminis-
trator for goods sold after his death.^^
§ 347. Indorsement Before and After Delivery of Note. —
The statute often gives the status of a party signing a note be-
fore and after delivery. In Missouri a third party who indorses
a note after delivery to the payee becomes a guarantor.^^ But a
party contracting to assume the liability of an indorser, cannot
be held as a guarantor. ^^
If he indorses before delivery to the payee, the presumption is
that he assumed the liability of a guarantor, which may be re-
butted by proof that the agreement between the parties was differ-
ent,^^ as between the original parties, the payee still holding the
note.^°
54. Harris v. Fawcett, L. R. 15 Eq. National Eagle Bank v. Hunt, 16
311; Coulthart v. Clementson, 5 Q. R. I. 148, 13 Atl. 115.
B. D. 42. 57. Adams v. Huggins, 73 Mo. App.
Compare Bradbury v. Morgan, 1 140.
H. & C. 249, decision questioned in As to indorsing note before and
Harris v. Fawcett, L. R. 15 Eq. 311, after delivery; contracts of surety-
313, 8 Ch. App. 866, and was not re- ship, see § 36 herein,
garded in Coulthart v. Clementson, 58. Tatum v. Brown, 23 Miss. 760;
5 Q. B. D. 42. Russell v. Clarke, 7 Cranch 69, 3 L.
55. Coulthart v. Clementson, 5 Q. Ed. 271.
B. D. 42, 47; Lloyd v. Harper, 16 Ch. 59. Eberhart v. Page, 89 111. 550.
D. 290, 314. 60. Milligan v. Holbrook, 168 HI.
56. Jordan v. Dobbins, 122 Mass. 343, 48 N. E. 157; De Witt County
168; Hyland v. Habich, 150 Mass. Nat. Bank v. Nixon, 125 HI. 615, 18
112, 22 N. E. 765; Aitken v. Lang's N. E. 203.
Adm'r, 106 Ky. 652, 51 S. W. 154;
§ 347
Suretyship and Guaranty.
358
But the decisions upon this subject are unreconcilable. The
United States Supreme Court holds that when a promissor)' note
made payable to a particular party or order, is first indorsed
by a third person, that is, before indorsed by the payee, such an
indorser is an original promisor, guarantor, or indorser, accord-
ing to the nature of the transaction and the understanding of the
parties.*^^
In many of the States such indorser is held prima facie liable
as a guarantor. ^^ Other courts hold that such indorser is pre-
sumably a second indorser, because in the absence of evidence to
the contrary the indorsement is for the accommodation of the
payee, and is a second indorsement requiring the indorsement of
the payee to make it operative.^^ Still other courts hold that such
indorser is prima facie liable as joint maker or surety.^
Many cases affirm the rule that if one not the payee indorses
his name in blank on a negotiable note before it is indorsed by
61. Rey v. Simpson, 22 How. 341,
16 L. Ed. 260; Good v. Martin, 95 U.
S. 90, 24 L. Ed. 341.
62. f'alifornia.— Crooks v. Tully, 50
Cal. 673.
Connecticut. — Clark v. Merriam,
25 Conn. 576.
Illinois. — Stowall v. Raymond, 83
111. 120; Lincoln v. Hinsey, 51 111.
437; Milligan v. Holbrook, 168 111.
343, 48 N. E. 157.
Iowa. — Knight v. Dunsmore, 12
Iowa 35.
Kansas. — Fuller v. Scott, 8 Kan.
32.
Kentucky. — Arnold v. Bryant, 8
Bush 668.
Minnesota. — Peterson v. Russell,
62 Minn. 220, 64 N. W. 555; Osborne
& Co. V. Gullikson, 64 Minn. 218, 66
N. W. 965.
Ohio. — Seymour v. Mickey, 15
Ohio St. 515.
Texas.— Chandler v. Westfall, 3
Tex. 477.
Yirginia. — Orrick v. Colston, 7
Gratt. (Va.) 189.
63. Browning v. Merritt, 61 Ind.
425; Phelps v. Vischer, 50 N. Y. 74;
Coulter V. Richmond, 59 N. Y. 478;
Moore v. Cross, 19 N. Y. 27; Arnott
V. Symonds, 85 Pa. St. 99; Cady v.
Shepard, 12 Wis. 639.
64. United States.— Good v. Mar-
tin. 95 U. S. 90, 24 L. Ed. 341.
Arkansas. — Nathan v. Sloan, 34
Ark. 524.
Colorado. — Good v. Martin, 2 Colo.
218; Leonard v. Wilder, 36 Me. 265.
Maryland.— Schley v. Merritt, 37
Md. 352.
Massachusetts. — Spaulding v. Put-
nam, 128 Mass. 363.
North Carolina. — Baker v. Robin-
son, 63 N. C. 191.
Oregon. — Barr v. Mitchell, 7 Ore.
346.
Tennessee. — Logan v. Ogden, 101
Tenn. 392, 47 S. W. 489.
Rhode Island. — Atwood v. Lester,
20 R. I. 660; Perkins v. Barstow, 9
R. I. 907.
Torniont. — Sylvester v. Downer,
20 Vt. 355.
359 Guaranty. § 347
the payee, and before it is delivered to take effect as a promissory
note, it might be presumed that he intended to give it credit by
becoming liable to pay it, either as a guarantor or as an original
promisor.''^ If the contract of indorsement was made at the in-
ception of the note, it is presumed to have been made for the same
consideration and a part of the original contract expressed by
the note. If made subsequently to the date of the note and with-
out the prior indorsement by the payee, it will be presumed that
it was not made for the same consideration, and the party, if
liable at all, will be regarded as a guarantor, and such contract of
guaranty of a debt of a third person must be in writing, and there
must be a sufficient proof of the consideration/'' This is the rule
where the third party indorses the note before the payee. But
where a third person indorses the note after a prior indorse-
ment by the payee, the law presumes it to have been done in aid
of the negotiation of the note, and the party may be regarded as
a subsequent indorser, the rule being that if the indorsement is
without date it will be presumed to have been made at the incep-
tion of the note.*^
And it is further held that in the irregularities in the execu-
tion of a promissory note the maker and such indorser are both to
be deemed original promisors, and the note a joint and several
promissory note to the payee, although as between the maker and
the third party, they stand in the relation of principal and surety.^*
This rule should be applied where the third party indorses his
name in blank on the note at the time when it was made and be-
fore it was indorsed by the payee. But the rule may be otherwise
if the party actually wrote his name at a subsequent period, un-
less it was done in compliance with an agreement made before the
note was executed. ^^
The rule undoubtedly should be, that where a promissory note
65. Colburn v. Averill, 30 Me. 310; (Mass.) 309; Noxon v. De Wolf, 10
Bryant v. Eastman, 7 Cush. Ill; Gray (Mass.) 43; Crllins v. Gilbert,
Benthal v. Judkins, 13 Met. 265. 94 U. S. 753, 24 L. Ed. 170.
66. Brjwster v. Silence, 8 N. Y. 68. Lewis v. Harvey, 18 Mo. 746;
207; Leonard v. Vredenburg, 8 Sylvester v. Downer, 20 Vt. 355.
Johns. (N. Y.) 29; Hall v. Farmer, 5 69. Leonard v. Wilder, 36 Me. 265;
Denio (N. Y.) 484. Hawkes v. Phillips, 7 Gray (Mass.)
67. Ranger v. Carey, 1 Met. 284; Champion v. Griffith, 13 Ohio
228.
§ 348 Suretyship and Guaranty. 360
is made payable to a particular person or order, and is first in-
dorsed by a third person, such third person should be regarded
as an original promisor, guarantor, or indorser, according to the
nature of the transaction and the understanding of the parties at
the time the transaction took place, when the statute does not give
the status of the third party.
If a person puts his name in blank on the back of a note at the
time it was made, and before it was indorsed by the payee, to
give the maker credit with the payee, or if he participated in the
consideration of the note, he must be considered as a joint maker
of the note,^" when not controlled by statute. But if the indorse-
ment was subsequent to the making of the note and to the delivery
of the same to take effect, and a third person puts his name on the
back of the note at the request of the maker, pursuant to a con-
tract of the maker with the payee for further indulgence or for-
bearance, he can only be held as a guarantor where there is legal
proof of consideration for the promise, unless it is shown that he
was connected with the inception of the note. But if the note
was intended for discount, and he indorses it with the under-
standing of all the parties that his indorsement should be inop-
erative until the instrument was indorsed by the payee, he would
then be liable only as a second indorser, in the commercial sense,
and as such would clearly be entitled to the privileges which be-
long to such an indorser.
In the interpretation of the contract, whether the party so in-
dorsing is an original promisor, guarantor, or indorser, the inter-
pretation ought to be such as will carry into effect the intention
of the parties, and proof of facts and circumstances which took
place at the time of the transaction should be admissible to aid in
the interpretation of the language employed.^^
§ 348. Offer and Acceptance. — When notice should be given
as to acceptance of an offer of guaranty, it is of importance in
reference to the liability of the guarantor. When an instrument
70. Lewis v. Harvey, 18 Mo. 746; Leek, 12 Wend. (N. Y.) 105; ClaytOtt
Sylvester v. Downer, 20 Vt. 355. v. Grayson, 4 Nev. & M. 602; Dentom
71. Cavazos v. Tre^^ne, 6 Wall. (U. v. Peters, L. R. 5 Q. B. 475; Shora
S.) 773, 18 L. Ed. 813; Hopkins v. v. Wilson. 9 CI. & F. 352.
See § 36.
361 Guaranty. § 348
in writing resolves itself into a promise or undertaking on the
part of the person executing, to do a particular thing which an-
other is bound to do, in the event such other person does not per-
form the act himself, it is an original undertaking, and not a col-
lateral guaranty ; it is in the nature of suretyship, and the person
bound by it must take notice of the default of the principal.^" In
a strict guaranty, the guarantor does not undertake to do what
the principal is bound to do, but he undertakes, in the event of
the principal's failure, to do what he has promised, to pay dam-
ages for such failure. The guarantor promises to pay such dam-
ages as result from the principal's default. A surety undertakes
to do a particular thing if the principal does fail."
The contract of guaranty is his own separate undertaking, in
which the principal does not join, and is not a joint engagement
with his principal.^* Where the guaranty is for the fulfillment
of a contract already made, or for one executed contemporaneously
with the contract of guaranty, or for the payment of an existing
debt, or where the contract of guaranty is upon a consideration
distinct from the credit extended to the principal debtor, and
which moves directly between guarantor and guarantee, notice of
acceptance is not necessary. In such cases the acceptance of the
guaranty and the performance of the consideration upon which
it rests makes the contract complete and enforceable.^^
The rule requiring notice by the guarantee of his acceptance
of a guaranty and his intention to act under it, applies only where
the instrument in legal effect is merely an offer or proposal ; then
notice of such acceptance is necessary. ^^ And where agents of the
72. Furst & Bradley Mfg. Co. v. Georgria. — Barnes Cycle Co. v.
Black, 111 Ind. 308, n N. E. r.04, Schofield, 111 Ga. 880, 36 S. E. 965.
Riddle V. Thompson, 104 Pa. St. 330; Illinois.— Cooke v. Orne, 37 111.
Woods V. Sherman, 7J Pa. St. 100; 186.
Relgart v. White, 52 Pa. St. 438. Indiana.— Closson v. Billman, 161
As to notice of default see § 144a. Ind. 610, 69 N. E. 449.
73. Nading v. McGregor, 121 Ind. Iowa. — German Savings Bank v.
465, 23 N. E. 283. Drake Roofing Co., 112 Iowa 184, 83'
74. Davis Sewing Mach. Co. v. N. W. 960, 51 L. R. A. 758.
Richards, 115 U. S. 524, 6 Sup. Ct. Massachusetts. — Cumberland
173, 29 L. Ed. 480; Shore v. Law- Glass Mfg. Co. v. Wheaton, 208 Mass.
rence, 68 W. Va. 220, 69 S. E. 791. 425, 94 N. E. 803.
75. United States.— Davis v. Wells, 76. United states. — Davis v.
104 U. S. 159, 26 L. Ed. 686. Wells, 104 U. S. 159, 26 L. Ed. 686.
§ 348 .SUKETYSIIIP AND GUARANTY. 362
creditor made a proposition to the debtor and to the defendants
which the latter accepted and guaranteed the payment of the
debt, notice by the creditor of the acceptance of the guaranty was
held to be unnecessary." But in the case of an absolute guaranty,
and not a mere oiler of guaranty, notice of acceptance by the
guarantee is not necessary.^^ Ordinarily there is occasion to notify
Delaware. — Wanamaker v. Benn, anty or a delivery of goods in re-
3 Penn. 188, 50 Atl. 512. liance upon the guarantor. Rowell
Illinois. — Fielel v. Marsh, 85 111. Mfg. Co. v. Isaacs, 144 Mo. App.
App. 164; Sears v. Swift, 66 111. App. 58, 128 S. W. 760.
496. An acknowledgment by letter of
Massaclmsetts, — Cumberland an offer to guarantee an account
Glass Mfg. Co. V. Wheaton, 208 of a certain person together with a
Mass. 425, 94 N. E. 803. tender of thanks for the same con-
Missouri. — People's Bank v. Stew- stitutes' an acceptance of such guar-
art, 152 Mo. App. 314, 133 S. W. 70; anty. Acorn Brass Mfg. Co. v. Gil-
Rouell Mfg. Co. V. Isaacs (Mo. App. more, 142 111. App. 567.
1910), 128 S. W. 760; Deere Plow 77. Stewart, Gwynne & Co. v.
Co. V. McCullough, 102 Mo. App. 458, Sharp County Bank, 71 Ark. 585, 76
76 S. W. 716; Peninsular Stove Co. S. W. 1064.
V. Adams Hardware & Furn. Co., 78. United States. — Bond v. Far-
93 Mo. App. 237. well Co., 172 Fed. 58, 96 C. C. A. 546.
New York. — Lamb v. Carley, 35 Connecticut — New Haven Co. v.
App. Div. 503, 54 N. Y. Supp. 804. Mitchell, 15 Conn. 206.
South Carolina.— Mott Iron Works Florida.— Ferst v. Blackwell, 39
V. Clark, 87 So. Car. 199, 69 S. E. Fla. 621.
227. Georgia. — Sheppard v. Daniel Mil-
Wasliington.— Bank of California, ler Co., 7 Ga. App. 760, 68 S. E. 451;
V. Union Packing Co., 60 Wash. 456, Sheffield v. Whitfield, 6 Ga. App. 762,
111 Pac. 573. 65 S. E. 807.
Compare Sheffield v. Whitfield, 6 Illinois. — Acorn Brass Mfg. Co. v.
Ga. App. 762, 65 S. E. 807. Gilmore, 142 111. App. 567; Sears v.
Notice of acceptance may be Swift, 66 111. App. 496; Neagle v.
waived. Swishar v. Deering, 104 Sprague, 63 111. App. 25.
111. App. 572. Indiana,— Wright v. Griffith, 121
Contract subject to approval. Ind. 478, 23 N. E. 281; Bryant v.
Where a contract to sell goods em- Stout, 16 Ind. App. 380, 44 N. E. 68,
bodied a guaranty and the contract 45 N. E. 343; Jackson v. Yandes, 7
contained a clause that it was " sub- Blackf. 536.
ject to the approval " of the seller Iowa. — McKee v. Needles, 123
it was held the guarantor was not Iowa 195, 98 N. W. 618; Case v.
bound in the absence of evidence Howard, 41 Iowa 479.
showing notice of acceptance of Kansas. — Platter v. Green, 26
the contract, or knowledge of guar- Kan. 252.
antor of the acceptance of his guar- Kentucky. — Watkins Medical Co.
363 GuAaANTY. § 348
the guarantor of the acceptance of an offer of guaranty, for doing
of the act specified in the offer is a sufficient acceptance. But
when the guarantor would not know of himself from the nature
of the transaction whether the offer had been accepted or not,
he is not bound without reasonable notice of the acceptance sea-
sonably given after the performance which constitutes the con-
sideration.'^ And it is held that notice is not necessary, even if
the guaranty is made at the request of the guarantee,^" though
other courts hold that notice of acceptance is necessary in such
cases.
Guaranties of performance and payment are absolute and not
V. Brand, 143 Ky. 468, 136 S. W. 79. Sears v. Swift, 66 111. App.
867. 496; Lascelles v. Clark, 204 Mass.
Maine.— Howe v. Nickeles, 22 Me. 362, 90 N. B. 875; Bishop v. Eaton,
175 161 Mass. 496, 37 N. E. 665; Babcock
Massachusetts. — Bishop v. Eaton, v. Bryant, 12 Pick. (Mass.) 133.
161 Mass. 496, 37 N. E. 665; Paige When acted upon the guarantee
V. Parka, 8 Gray 211. becomes binding. Acorn Brass Mfg.
Michigan. — Crittenden v. Fiske, 46 Co. v. Gilmore, 142 111. App. 567.
Mich. 70, 8 N. W. 714. So where an extension of credit is
Missouri. — Peoples' Bank v. Stew- contemplated and given, notice of
art, 152 Mo. App. 314, 133 S. W. 70; acceptance is held to be unneces-
Globe Printing Co. v. Bickle, 73 Mo. sary. Sheppard v. Daniel Miller
App. 499. Co., 7 Ga. App. 760, 68 S. E. 451;
Nebraska,— Standard Oil Co. v. Sheffield v. Whitfield, 6 Ga. App.
Hoese, 57 Neb. 665, 78 N. W. 292. 762, 65 S. B. 807. And a sale and
New Hampshire — Bank v. Sin- delivery of goods in reliance upon a
Clair, 60 N. H. 100. guaranty is held sufficient to bind
New York. — Smith v. Dann, 6 Hill the guarantor. Bond v. Farwell
543; Douglass V. Howland, 24 Wend. Co., 172( Fed. 58, 96 C. C. A. 546;
35. Desgranges v. Newhauer, 149 Mo.
Ohio. — Powers v. Bumcratz, 12 App. 715, 129 S. W. 759.
Ohio St. 293. 80. Davis v. Wells, 104 U. S. 159,
PennsylTania.— Evans v. McCor- 26 L. Ed. 686; Davis Sewing Mach.
mick, 167 Pa. St. 247, 31 Atl. 563. Co. v. Richards, 115 U. S. 524, 6 Sup.
Texas. — Lemp v. Armengol, 86 Ct. 173, 29 L. Ed. 480.
Tex. 690, 26 S. W. 941; Hill Mercan- 81. Evans v. McCormick, 167 Pa.
tile Co. V. Rotan Grocery Co. (Tex. St. 247, 31 Atl. 563; Gardner v.
Civ. App. 1910), 127 S. W. 180. Lloyd, 110 Pa. St. 278, 2 Atl. 562;
Vermont— Maynar.d v. Morse, 36 Kay v. Allen, 9 Pa. St. 320.
Vt. 617. See German Sav. Bank v. Drake
Washington. — Bank of California Roofing Co., 112 Iowa 184, 83 N. W.
V. Union Packing Co., 60 Wash. 456, 960, 51 L. R. A. 758, 51 Cent. L.
Ill Pac. 573. Journal, 428, and note.
§ 348 SUKETYSIIIP AND GuABANTY. 3(34r
collateral. Unlike the contract of an indorser, there is no con-
dition as to demand and notice of default annexed to a contract
of guaranty of payment or of performance. Such a guaranty is
an absolute promise that the principal will perform in accordance
with the provisions of his contract. It is the business of the
guarantor to inform himself as to the conduct of the principal.
There is some conflict to this doctrine, but it is the true rule, be-
cause the guarantor makes an absolute promise that a particular
thing shall be done, and thereby assumes an active, absolute duty
to see that it is done and must, at his peril, perform the promise.
And while the guarantee, from his situation, possesses better
means of knowing of the default of the principal than the guar-
antor, yet the latter has ample means of knowing the facts, and
must inform himself and not rely upon the guarantee, who owes
no duty to the guarantor except to act in the utmost good faith,
and not be guilty of laches to the guarantor's injury.^^
In an absolute guaranty, notice of default is not necessary to
be given to the guarantor to hold him liable.^^ But when the in-
strument is merely an offer or a proposition, then notice of the
acceptance of the guaranty is necessary.*'* Suit is not necessary
in any jurisdiction against the principal debtor, when the guar-
anty is absolute, in order to fix the liability of the guarantor.*^
82. Heyman v. Dooley, 77 Md. 162, IVew York.— City Nat. Bank v.
26 Atl. 117; Wise v. Miller, 45 Ohio Phelps, 86 N. Y. 484.
St. 388, 4 N. E. 218; Hubbard v. Compare Evans v. McCormick, 167
Haley, 96 Wis. 578, 71 N. W. 1036; Pa. St. 247, 31 Atl. 563.
Mallory v. Lyman, 3 Pin. (Wis.) As to notice of default see § 353
443. herein.
83. Illinois.— Valtz v. Harris, 40 84, Davis v. Wells, 104 U. S. 159,
111. 155; Taylor v. Tolman Co., 47 26 L. Ed. 686; Cooke v. Orne, 37 111.
111. App. 264. 186; Field v. Maish, 85 111. App. 164;
Indiana. — Nading v. McGregor, Scribner v. Rutherford, 65 Iowa 551,
121 Ind. 465, 23 N. E. 283. 22 N. W. 670; De Cramer v. Ander-
lowa.— Carmen v. Elledge, 40 son, 113 Mich. 578. 71 N. W. 1090.
Iowa 409. 85. Georgia. — Maury v. Waxel-
Michigan.— Crittenden v. Fiske, baum, 108 Ga. 14, 33 S. E. 701.
46 Mich. 70, 8 N. W. 714. Illinois.— Benny v. Crane, 80 UK
Missouri. — Globe Printing Co. v. 244.
Bickle, 73 Mo. App. 499. Indiana.— Cole v. Bank, 60 Ind.
Nebraska, — Lininger & Metcalf 350.
Co. V. Wheat, 49 Neb. 567, 68 N. W. Iowa.— German Savings Bank v.
941.
365
GUAKANTY.
§§ 349,350
§ 349. Guaranty of Payment. — Guaranty of payment may be
made on the back of the instrument or by a separate writing, and
whether it be an absolute or conditional contract is not settled.
One line of cases holds that it is an absolute contract, and on de-
fault the guarantor need not be notified in order to hold him.^"
In other jursdictions a guaranty is considered as conditional,
and the guarantor must be given notice at once of the non-pay-
ment, in order to hold him.*^ The cases cannot be reconciled.
§ 350. Conditional Guaranty. — The guarantor may sign the
contract with a condition annexed. Thus, where the guarantor
Drake Roofing Co., 112 Iowa 184, Missouri. — People's Bank v. Stew-
83 N. W. 960, 51 L. R. A. 758. art, 152 Mo. App. 314, 133 S. W. 70.
Louisiana. — Louisiana R. R. Co. New York. — Allen v.' Rightmere,
V. Dillard, 51 La. Ann. 1484, 26 So. 20 Johns. 365.
451. Ohio.— Clay v. Edgerton, 19 Ohio
Minnesota. — Peterson v. Russell, St. 549.
62 Minn. 220, 64 N. W. 555. Tennessee.— Taylor v. Ross, 3
Nebraska. — Fleuthaw v. Steward, Yerg. 330.
45 Neb. 640, 63 N. W. 924. Vermont.— Smith v. Ide, 3 Vt. 290.
Pennsylvania. — Roberts v. Riddle, A guaranty in the form of an
79 Pa. St. 468. 0. K. written on a bill of goods is
86. Alabama. — Donley v. Camp, 22 sufficient to create a contract of
Ala. 659. guaranty. Desgranges v. Newbauer,
Connecticut.— Beardsley v. Hawes, 149 Mo. App. 715, 129 S. W. 759.
71 Conn. 39, 40 Atl. 1043; City Sav. An indorsement "I hereby guar-
Bank v. Hopson, 53 Conn. 453, 5 antee payment of the within note "
Atl. 601. creates a contract of guaranty.
Georgia.— Sheppard v. Daniel Mil- Levy v. Webster, 106 Me. 500, 76,
ler Co., 7 Ga. App. 760, 68 S. E. 451; Atl. 936.
Sheffield v. Whitfield, 6 Ga. App. 87. California.- Crooks fv. Tully,
762, 65 S. E. 807.
Illinois. — Hance v. Miller, 21 111.
636.
Indiana. — Studebaker v. Cody, 54
Ind. 586.
Kentucky. — Levi v. Mendell, 1
Duv. (Ky.) 78.
Maryland. — Wright v. Dyer, 48
Md. 525.
Michigan. — Roberts v. Hawkins;
70 Mich. 566, 38 N. W. 575.
Minnesota. — Hungerford v.
O'Brien, 37 Minn. 306, 34 N. W. 161.
Mississippi. — Baker v. Kelly, 41 >
Miss. 696.
50 Cal. 254.
Delaware. — Erwin v. Lambon, 1
Harr. 125.
Iowa. — Rockford Sendon Nat.
Bank v. Gaylord, 34 Iowa 246.
Maine. — Globe Bank v. Small, 25
Me. 366.
Massachusetts. — Talbot v. Gay, 18
Pick. 563.
Nebraska. — Newton Wagon Co. v.
Diers, 10 Neb. 284, 4 N. W. 995.
South Carolina. — Barrett v. May,
2 Bailey L. 1.
§ 351 Suretyship and Guaranty. 36G
becomes such after the delivery of a note upon a condition, and
the condition is not complied with, the contract is invalid-"" So
a party guaranteeing a note upon condition that other persons
shall also become guarantors, the payee agreeing to such condi-
tion, is released if the other parties do not sign.^^ If the condi-
tion is complied with the contract is valid. And if one signs
upon a condition that a counter agreement will be executed, he is
not entitled to notice of such execution, which makes it absolute.^"
But where there is nothing in the contract of guaranty to show
that there was any condition annexed to its execution by the guar-
antor, and the creditor has no notice or knowledge of such a con-
dition and accepts it in good faith it will be binding upon the
guarantor. ^^ An absolute guaranty is an unconditional under-
taking on the part of the guarantor that the maker will pay the
note or other debt. A conditional guaranty is an undertaking to
pay if payment cannot, by reasonable diligence, be obtained from
the principal.^^
§ 351. Guaranty of Illegal Contracts. — A guaranty of an il-
legal contract is void. If the guaranty is to secure the perform-
ance of an unlawful act it is invalid.^^
A guaranty may be limited. 'So the fact that a note provides
for a certain rate of interest, does not make the contract of guar-
anty illegal, because it provides for a less rate of interest ; such
difference in the rate of interest does not create a repugnancy be-
tween the note and the guaranty.®*
An absolute guarantor is liable for a note which is purchased
by an innocent party on the strength of the guaranty, though the
note is invalid.®^ And the same rule applies to a certificate of de-
88. Eaton v. Foster, 66 111. App. 92. Beardsley v. Hawes, 71 Conn.
486; Price v. Oatman (Tex. Civ. 39, 40 Atl. 104.3; Cowles v. Pick 55
App.), 77 S. W. 258. Conn. 251, 10 Atl. 569.
89. Belleville Sav. Bank v. Born- 93. Jack v. Sinsheimer, 125 Cal.
man, 124 111. 200, 16 N. E. 210; State 563, 58 Pac. 130; Howard v. Smith,
Bank of Utah v. Burton-Gardner 91 Tex. 8, 38 S. W. 15.
Co., 14 Utah 420, 48 Pac. 402. 94. Cozzens v. Chicago Hydraulic-
90. Lennox v. Murphy, 171 Mass. Press Brick Co., 166 111. 213, 46 N.
370, 50 N. E. 644. E. 788.
91. Hill Mercantile Co. v. Rotan 9.'). Holm v. Jamieson, 173 III 295,.
Grocery Co. (Tex. Civ. App. 1910), 50 N. E. 702.
127 S. W. 1080.
367: GuAKANTYo § 352
posit, if it is valid upon its face, and its invalidity is for matters
dehors its face.^** And the guarantor will be bound although some
of the prior parties' names to the note are forged."
In some States a guaranty made on Sunday is void f^ in others
a contract made on Sunday is valid f^ and such is the com-
mon law rule.^ So if a contract of guaranty or any other is
void if made on Sunday, it is so by statutory provision.
§ 352. Default of Payment — Notice to Guarantor. — In the
case of collateral continuing guaranty for the payment of goods
to be thereafter sold, a guarantee who, from time to time, sella
goods on the faith of the guaranty, must give the guarantor rea-
sonable notice of defaults of payment on the part of the principal
debtor ; and the guarantor will be discharged from liability so far
as he may sustain loss and damages resulting from a failure of
the guarantee to give such notice. But if such notice can result
in no benefit to the guarantor, and no injury results to him from
failure to give such notice, such omission on the part of the guar-
antee will not bar recovery for such defaults, from the guarantor.^
Thus, where A made and delivered to B a writing guaranteeing
the prompt payment of all debts which might make by the pur-
chase of goods from B' in the future, with interest thereof, B not
being obliged to sell or 'C to purchase any goods, the undertaking
of A will not be an absolute guaranty, but a collateral or condi-
tional one, and reasonable notice must be given to A of the failure
96. Purdy v. Peters, 35 Barb. (N. Illinois. — Taussig v. Reid, 145 111.
Y.) 239. 488, 32 N. E. 918.
97. Veazle v. Willis, 6 Gray Iowa. — Grier v. Irwin (Iowa
(Mass.) 90. 1909), 86 N. W. 273.
98. Carrick v. Morrison, 2 Del. Maine. — Howe v. Nickels, 22 Me.
157, 42 Atl. 447. 175.
99. Richmond v. Moore, 107 111. Massachusetts. — Cumberland
429. Glass Mfg. Co. v. Wheaton, 208
1. Taussig V. Reid, 145 111. 488, Mass. 425, 94 N. E. 803; Clark v.
32 N. E. 918. Remington, 11 Mete. 361.
2. United States. — Davis v. Wells, Miehig-an.— Crittenden v. Piske, 46
104 U. S. 159, 26 L. Ed. 686. Mich. 70, 8 N. W. 714.
Florida. — Ferst v. Blackwell, 39 Mississippi. — Montgomery v. Kel-
Fla. 621, 22 So. 892. log, 43 Miss. 486.
England. — Martin v. Wright, 6
Adol. & E. 917.
% 353
Suretyship and Guakanty.
368
of C to pay for goods bought by him, uuless such notice would be
of no benefit to A.^
§ 353* Notice of Default. — Notice of default when necessary-
must be given within a reasonable time.* What is a reasonable
time for such notice depends upon circumstances. If it be given
before loss can occur, or the situation of the parties becomes
changed so as to endanger loss, it is sufficient ; if delayed so long
as to deprive the guarantor of the means of securing himself, it
will not be in time, and the guarantor will be released.^
But if the principal is insolvent when the debt becomes due
or default is made, no notice is required, because the guarantor
could derive no benefit from the receipt of notice.^
Of course, where the contract is an absolute guaranty as where
it provides that a definite sum shall be paid at a stated time, no
notice of default is necessary before suit is brought against the
guarantor.^ Unlike a contract of an indorser, there is no condi-
tion as to demand and notice of default annexed to a contract of
guaranty of pa^onent or of performance.^
3. Taussig v. Reid, 145 111. 488, 32
N. E. ni8.
4. Indiana. — Furst & Bailey Mfg.
Co. V. Black, 111 Ind. 308, 12 N. E.
504.
Massachusetts. — Oxford Bank v.
Haynes, 8 Pick. 423.
Minnesota. — Brackett v. Rich, 23
Minn. 485.
Ohio. — Greene v. Dodge, 2 Ohio
231.
Pennsylvania. — Patterson v. Reed,
7 Watts & S. 144.
Yermont. — Sylvester v. Downer,
18 Vt. 31.
Wisconsin. — Sentil Co. v. Smith,
143 Wis. 377, 127 N. W. 943.
5. Dickerson v. Derrickson, 39 111.
574; Taussig v. Reid, 145 111. 488, 32
N. E. 918.
6. Walker v. Forbes, 25 Ala. 139;
Taussig V. Reid, 145 111. 488, 32 N.
E. 918; Brackett v. Rich, 23 Minn.
485; Dearborn v. Sawyer, 59 N. H.
95.
7. Georg:ia. — Gammell v. Pana-
more, 58 Ga. 54.
Idaho. — Miller v. Lewiston Na-
tional Bank, 18 Ida. 124, 108 Pac.
901.
Illinois.— Gage v. Bank, 79 111. 62;
Mary Blanc & Co. v. Jacobson, 149
111. App. 240.
Iowa. — Peck v. Frink, 10 Iowa,
193.
Massachusetts. — Cumberland
Glass Mfg. Co. V. Wheaton, 208 Mass.
425, 94 N. E. 803 ; Lent v. Padelford,
10 Mass. 230.
Missouri. — Barker v. Scudder, 56
Mo. 272; People's Bank v. Stewart,
152 Mo. App. 314, 133 S W. 70.
New Jersey. — Newcomb v. Kloeb-
len, 77 N. J. L. 791, 74 Atl. 511.
Ohio. — Powers v. Bumcratz, 12
Ohio St. 273.
Wisconsin. — Hubbard v. Haley, 96
Wis. 578, 71 N. W. 1036.
8. Hubbard v. Haley, 96 Wis. 578.
71 N. W. 1036.
■369 OUARANTY. § 354
§ 354. Continuing Guaranty. — When the parties to a guaranty
look to a future course of dealing for an indetinite time, or a suc-
cession of credits to be given, it is to be deemed a continuing
guaranty; but when no time is lixed upon and nothing in the
agreement indicates a continuance of the undertaking, the pre-
sumption is in favor of a limited liability as to time. Thus, a
guaranty of payment for goods to be sold '' from time to time ''
to an amount not exceeding a specified sum, is continuous antil
the sums remaining unpaid reach the designated limit, although
the aggregate of purchases have exceeded it.^ The rule is this:
When by the terms of the undertaking, by the recitals in the in-
struments, or by a reference to a custom and course of dealing be-
tween the parties, it appears that the guaranty looks to future
course of dealing for an indefinite time, or a succession of credits
to be given, it is to be deemed a continuing guaranty, and the
amount expressed is to limit the amount for which the guarantor is
to be responsible.^"
§ 355. Letters of Credit May Be a Continuing Guaranty. —
Letters of credit may be so expressed as to be a continuing guar-
9. United States. — Douglas v. Maine. — Reed v. Fish, 59 Me. 358.
Reynolds, 7 Pet. 113, 8 L. Ed. €26. Massachusetts.— Boston, &c. Co. v.
Illinois. — Taussig v. Reid, 145 111. Moore, 119 Mass. 435.
488, 32 N. E. 918. IVew Jersey.— Newcomb v. Kloeb-
Massachusetts.— Sherman v. Mul- len, 77 N. J. L. 791, 74 Atl. 511.
loy, 174 Mass. 41, 54 N. E. 345; Me- New York.- Strong v. Lyon, 63 N.
lendy v. Capen, 120 Mass. 222; Y. 172; First National Bank of Ft.
Hatch V. Hobbs, 12 Gray 447. Wayne v. Stockyards Bank, 138 App.
Michigan.— Crittenden v. Fiske, 46 Div. 918, 123 N. Y. Supp. 655.
Mich. 70, 8 N. W. 714. PennsylTania. — Anderson v.
New York.— Gates v. McKee, 13 Blakeley, 2 Watts & S. 237.
N. Y. 232. Rhode Island.— Congdon v. Read,
England.— Mason v. Pritchard, 12 7 R. I. 576.
East 227. Wisconsin. — ^First National Bank
10. United Spates.— Bond v. Far- v. Wunderlich, 145 Wis. 193, 130 N.
well Co., 178 Fed. 58, 96 C. C. A. W. 98; Sentinel Co. v. Smith, 143
546. Wis. 377, 127 N. W. 943.
Connecticut. — Hotchkiss v. A continuing guaranty remains in
Barnes, 34 Conn. 27. force until revoked. Merchants Na-
Illinois. — Malleable Iron Range tional Bank v. Cole, 83 Ohio St. 50,
Co. V. Pusey, 244 111. 184, 91 N. E. 93 N. E. 465.
51.
24
§ 355
Suretyship and Guaeanty.
370
antj. If the parties appear, by the letter of credit, to contemplate
a course of future dealing between the parties, it is not exhausted
by giving credit even to the amount limited bj the letter v^hich is
subsequently reduced or satisfied by payment made by the debtor,
but is to be deemed a continuing guaranty," and the writer of the
letter of credit is liable for the credit given upon it without notice
to him unless its terms express or imply the necessity of giving
notice. Where there is a guaranty for future operations, and one
of uncertain amount, there should be a distinct notice of accept-
ance. But where the guaranty is absolute in its terms, no notice
is necessary.^^
Where a proposition is made by one party to guarantee pay-
ment to another, if he will sell goods to a third party, notice of
acceptance of the proposition is necessary to create the contract
of guaranty.^
But another line of cases holds that notice must be given of ac-
ceptance of an absolute guaranty within a reasonable time to the
guarantor." But this doctrine is opposed to the weight of Eng-
lish and American authority.^^
11. Gates V. McKee, 13 N. Y. 232.
12. Iowa. — Cormon v. Elledge, 40
Iowa 400.
Massachusetts. — Paige v. Parker,
8 Gray 211.
New York. — Union Bank v. Cos-
ter, 3 N. Y. 204; Douglass v. How-
land, 24 Wend. 35.
Ohio. — Powers v. Bumcratz, 12
Ohio St. 273, where the cases are
reviewed.
Tennessee. — Yancey v. Brown, 3
Sneed 89.
Vermont. — Maynard v. Morse, 36
Vt. 617.
13. New York.— Whitney v. Groat,
24 Wend. 81; Smith v. Dann, 6 Hill
(N. Y.) 543.
Texas. — Lemp v. Armegol, 86 Tex.
690, 26 S. W. 941.
Illinois. — Cooke v. Orne, 37 111.
186; Neagle v. Sprague, 63 111. App.
25.
Indiana.— Wright v. Griffith, 121
Ind. 478, 23 N. E. 281.
Massachusetts. — Bishop v. Eaton,
161 Mass. 496, 37 N. E. 665.
14, United States. — Adams v.
Jones, 12 Pet. 207, 9 L. Ed. 1058;
Lee V. Dick, 10 Pet. 482, 495, 9 L.
Ed. 503; Douglass v. Reynolds, 7
Pet. 113, 8 L. Ed. 626.
Alabama. — Walker v. Forbes, 25
Ala. 147; Lawson v. Townes, 2 Ala.
375.
Arkansas. — McCollum v. Gushing,
22 Ark. 542.
Connecticut. — Croft v. Isham, 13
Conn. 36.
Delaware. — Taylor v. McCluney, 2
Houst. 38.
Kentucky. — Kinchelor v. Holmes,
7 B. Mon. 9.
Louisiana. — Bank v. Sloo, 10 La.
Ann. 543.
15. Powers v. Bumeratz, 12 Ohio
St. 273, where the English and
371
Guaranty.
§ 356
§ 356. Cnstruction of Contract. — The weight of authority is
in favor of construing a contract of guaranty by rules which
apply as favorably to the guarantor as those which apply to other
contracts, notwithstanding the guarantor is, in a sense, to be re-
garded as a surety. ^^
'Commercial guaranties are in extensive use, and should receive
the liberal construction that is given to other contracts/^ In such
construction, technicalities should be excluded and the reasonable
intention of the parties, as it may be gathered from all parts of
the contract, should prevail.^* The guarantor's liability must not
be enlarged by implication, nor must he be held for purchases
made by another for an indefinite time nor for an unlimited ex-
tent, unless the intent of the guarantor so to bind himself is
clearly manifest.^^
American authorities are reviewed;
German Sav. Bank v. Roofing Co.,
112 Iowa 184, 51 Cent. L. Journal,
428, and note.
16. United States. — Drummond v.
Prestman, 12 Wheat. 515, 6 L. Ed.
712; Laurence v. McCalmont, 2 How.
426, 11 L. Ed. 326; National Bank
of Commerce v. Rockefeller, 174
Fed. 22, 98 C. C. A. 8.
Illinois. — Taussig v. Reid, 145 111.
488, 32 N. E. 918; Com. Exchange
National Bank of Chicago v. Curtiss,
146 111. App. 489; Acorn Brass Co.
V. Gilmore, 142 111. 567.
New York. — Guardian Trust Co.
V. Peabody, 122 App. Div. 648, 107
N. Y. Supp. 515, affirmed 195 N. Y.
544, 88 N. E. 1120; Dobbins v. Brad-
ley, 17 Wend. 422.
Ohio. — National Bank of Com-
merce V. Garn, 23 Ohio Cir. Ct. R.
447.
Texas. — See Damell v. Dolan
(Tex. Civ. App. 1910), 132 S. W.
857.
Parol statements not admissible
to vary terms of a contract which
are clear and unambiguous. Na-
tional Bank of Commerce v. Rocke-
feller, 174 Fed. 22, 98 C. C. A. 8.
17. Douglass v. Reynolds, 7 Pet.
(U. S.) 113, 8 L. Ed. 626; Hargreaves
V. Smee, 6 Bing. 244; Mayer v.
Isaacs, 6 Mees. & W. 605.
18. Rouss V. Cregler, 103 Iowa 60,
72 N. W. 429; Cumberland Glass
Mfg. Co. V. Wheaton, 208 Mass. 425,
94 N. E. 803; Morris & Co. v. Lucker.
158 Mich. 518, 123 N. W. 21; Senti-
nel Co. V. Smith, 143 Wis. 377, 127
N. W. 943.
Jfegligence or bad faith. An in-
tent to guarantee against results of
will not be attributed. Krafft v.
Citizens Bank of Dyersburg, 139
App. Div. (N. Y.) 610. 124 N. Y.
Supp. 214.
19. United States.— National Bank
of Commerce v. Rockefeller, 174
Fed. 22, 98 C. C. A. 8.
Alabama. — Andrews & Co. r.
Stowers Furniture Co., 136 Ala. 244,
52 So. 316.
California. — Jack v. Sinsheimer,
125 Cal. 563, 58 Pac. 130; Van Valk-
enburgh v. Oldham, 12 Cal. App. 572,
108 Pac. 42.
§ 356 SUEETYSHIP AND GuAKANTY. 372
A guaranty should be liberally construed according to the in-
tention of the parties as manifested by the terms of the contract
taken in connection with the subject matter, and in order to as-
certain the intention of the parties the circumstances of the whole
transaction must be considered.^*^ But the words of the contract
cannot be enlarged beyond their natural import in favor of the
guarantor, nor restricted in aid of the creditor. The circum-
stances accompanying the whole transaction may be looked to in
ascertaining the intention of the parties.^^ A contract of surety
must have such a construction given to it as will carry out the
intention of the parties ; a contract of guaranty is not to be inter-
preted by any different rule. So where a party guaranties that
a minor will ratify a sale of land made to him when he arrives
at majority, and also the notes given in payment for the land, a
ratification of the sale and notes upon his becoming of age will
release the guarantor, because it was not a personal guaranty of
payment of the notes, but only that the minor would not repudi-
ate the transaction at majority; for the only purpose of the exe-
cution of such contract was that the indebtedness should not be
repudiated or payment refused on account of the age of the maker
of the notes, as manifested by the intention of the parties and the
Kansas. — Dry Goods Co. v. Year- merce v. Rockefeller, 174 Fed. 22,
out, 95 Kan. 684, 54 Pac. 1062. 98 C. C. A. 8.
Massachusetts. — Lascelles v. A guaranty of any debt will not
Clark, 204 Mass. 362, 90 N. E. 875. cover liability on a guaranty. Na-
Micliigan. — Morris & Co. v. tional Bank of Commerce v. Rocke-
Lucker, 158 Mich. 518, 123 N. W. 21. feller, 174 Fed. 22, 98 C. C. A. 8.
Nebraska. — Harvey v. First Nat. 20. Rapp v. Linebarger & Son, 149
Bank, 56 Neb. 320, 76 N. W. 870. Iowa 429, 128 N. W. 555, rev'g 125
IVew York. — Guardian Trust Co. v. N. W. 209 ; Hooper v. Hooper, 81
Peabody, 122 App. Div. 648, 107 N. Md. 155, 31 Atl. 508.
Y. Supp. 515, affirmed 195 N. Y. 544, 21. Davis v. Wells, 104 U. S. 159,
88 N. E. 1120. 26 L. Ed. 686; Mauran v. Bullus, 16
Ohio.— National Bank of Com- Pet. (U. S.) 528, 10 L. Ed. 1056; Lee
merce v. Gaar, 23 Ohio Cir. Ct. R. v. Dick, 10 Pet. (U. S.) 482, 9 L. Ed.
447. 503; Bell v. Bruen, 1 How. (U. S.)
South Carolina,— Bank of Ipswich 169, 11 L. Ed. 89.
V. Ayers, 26 So. Dak. 216, 128 N. W. The exact terms of the contract
127. control. Van Volkenburgh v. Old-
A guaranty will not cover a note ham, 12 Cal. App. 572, 108 Pac. 42;
given prior to the giving of the ]\lorris & Co. v. Lucker, 158 Mich.
guaranty. National Bank of Com- 518, 123 N. W. 21.
373
Guaranty.
§ 356
circumstances surrounding the whole transaction.^^ But the au-
thorities are in conflict. In some cases a strict interpretation, it
is said, should be in favor of the guarantor.^^ Other decisions
hold that such contract should be construed like other contracts.^*
Still others hold that the contract is not to be construed strongly
in favor of or against the guarantor.^^ Again it is held that it
will be construed most strongly against the guarantor.^^ And
others hold that there should be a reasonable interpretation ac-
cording to the intention of the partes.^^
The construction of letters of credit should be reasonable and
liberal, so as to render them safe to rely on.^^ If the credit is
limited, the party advancing on the faith of the letter is bound at
his peril to ascertain whether the authority conferred has been
exhausted. ^^ Thus, a guaranty for goods sold on six months' credit
does not cover a four months' credit f^ the credit must be accord-
ing to the terms of the letter.^^
22. Starr v. Milliken, 180 111. 458,
54 N. E. 328.
23. Drummond v. Prestman, 12
Wheat. (U. S.) 515, 6 L. Ed. 712;
Bright V. McKnight, 1 Sneed (Tenn.)
164.
Ambiguities should be construed
in favor of guarantor. Hill Mer-
cantile Co. V. Rotan Grocery Co.
(Tex. Civ. App. 1910), 127 S. W. 1080.
24. London & S. F. Bank v. Par-
rott, 125 Cal. 472, 28 Pac. 164; Corn
Exchange National Bank of Chicago
v. Curtiss, 146 111. App. 489; Acorn
Brass Co. v. Gilmore, 142 111. App.
567; Wills v. Ross, 77 Ind. 1; Smith
V. Molleson, 148 N. Y. 241, 246, 42
N. E. 669.
25. White v. Reed, 15 Conn. 457;
Mussey v. Raynor, 22 Pick. (Mass.)
228; Crist v. Burlingham, 62 Barb.
(N. Y.) 351.
26. Newcorab v. Kloeblen, 77 N. J.
L. 791, 74 Atl. 511.
27. United States.— Davis v. Wells,
104 U. S. 159, 26 L. Ed. 686.
Illinois. — Peoria Savings Loan &
Trust Co. v. Elder, 165 111. 55, 45 N.
E. 1083.
Iowa. — Shickle, Harrison & How-
ard Iron Co. V. Water Works Co., 83
Iowa 396, 49 N. W. 987.
Michigan. — Mathews v. Phelps, 61
Mich. 327, 28 N. W. 108.
Missouri. — Shine v. Bank, 70 Mo.
524.
Nebraska. — Tootle v. Elgutter, 14
Neb. 160.
New York. — Bennett v. Draper,
139 N. Y. 266, 34 N. E. 791.
Ohio. — Birdsall v. Heacock, 32
Ohio St. 177.
Oregon. — Wiler v. Henarie, 15
Oreg. 28, 13 Pac. 614.
Texas. — Gardner v. Watson, 76
Tex. 25, 13 S. W. 39.
28. Lawrence v. McCalmont, 2
How. (U. S.) 426, . . L. Ed. • . ; Bel-
loni v. Freeborn, 63 N. Y. 383.
29. Ranger v. Sargeant, 36 Tex.
26.
Compare Russell v. Wiggin, 2
Story, 213.
30. Leeds v. Dunn, 10 N. Y. 475..
31. Dodge V. Myer, 1 Cal. 405.
§ 357 Suretyship and Guaeanty. 374
§ 357- Negotiability of a Guaranty. — A general guaranty is
assignable with tlio obligation secured thereby, and it goes with
the principal obligation, and is enforceable by the same persons
who can enforce the obligation.^^ The rule is, as to general guar-
anty, that the transfer of a note carries with it all security, even
if there is no formal assignment or delivery, or mention of the
guaranty.^^
This rule is so because a general guaranty is one open for ac-
ceptance by the whole world. But a special guaranty is different ;
it is limited to a person to whom it is addressed and usually con-
templates a trust or repose of confidence in such person, and
may not be assignable until a right of action has arisen thereon.^*
But when one purchases a note which is secured by a general
guaranty, he is entitled to the benefit of such guaranty, though he
buys in ignorance thereof."^
But there is conflict among the authorities on the negotiability
of a guaranty. It is held that a guaranty of a note or bill con-
tained in a separate instrument is not negotiable merely because
the paper guaranteed has that quality. So a guaranty may he
assigned Avith the note and the holder will thereby be invested
with the equitable title thereof as between the parties. ^^ In a
number of cases it is held that a guaranty indorsed on a note
passes with the note in the hands of a bo7ia fide holder.^'' Other
32. Everson v. Gere, 122 N. Y. 290, New York.— Stillwell v. Northrup,
25 N. E. 492; Claflin v. Ostrom, 54 109 N. Y. 473, 17 N. E. 379.
K. Y. 581; Bassett v. Perkins, 65 PennsylTania. — Reed v. Garvin, 12
Misc. R. (N. Y.) 103, 119 N. Y. Supp. Serg. & R. 100.
354; First National Bank v. Taylor Utah. — First National v. Taylor
(Utah), 114 Pac. 529; Tidionte Sav- (Utah 1911), 114 Pac. 529.
ings Bank v. Libbey, 101 Wis. 193, Wisconsin. — Croft v. Bunster, 9
77 N. W. 182; Lane v. Duchac, 73 Wis. 503.
Wis. 646, 41 N. W. 962. 34. Jex v. Straus, 122 N. Y. 293,
33. United States. — Carpenter v. 25 N. E. 478, distinguishing Evans-
Longan, 16 Wall. 271, 21 L. Ed. 313. ville Nat. Bank v. Kauffmann, 93
Illinois.— Ellsworth v. Harmon, N. Y. 273.
101 111. 274. 35. Tidioute Sav. Bank v. Libbey,
Iowa.— Jones v. Berryhill, 25 101 Wis. 193, 77 N. W. 182.
Iowa 289. 36. McLaren v. Watson, 26 Wend.
Kansas. — Commercial Bank v. (N. Y.) 425; Arents v. Common-
Provident Institution, 59 Kan. 361, wealth, 18 Gratt. (Va.) 770.
53 Pac. 131. 37. Webster v. Cobb, 17 111. 466;
Minnesota. — Harbord v. Cooper, Commercial Bank v. Provident Insti-
43 Minn. 466, 45 N. W. 860. tution, 59 Kan. 361, 53 Pac. 131;
S7l
GUAEANTT.
§ 35S
cases hold that a guaranty cannot be transferred to a third per-
son so as to authorize him to proceed in his own name on the
guaranty against the guarantor,^* and this applies whether in-
dorsed on the note by the payee,'^^ or by a third party.'"^ Another
class of cases holds that the transferee may sue in his own name,
but takes the instrument with all the equities while in the hands
of the assignor,"
A letter of credit addressed to a particular person is not assign-
able.*^ When bonds are made payable to bearer, if the guaranty
is indorsed thereon, it passes with the bond.^^ Some authorities
hold that the assignee of the bond must bring suit in the name
■of the assignor for his use.**
In Kentucky under the statute a written guaranty of the stock
of a corporation may be assigned same as a bond.*^ Generally the
guaranty of a mortgage passes with it.*^
§ 358. Negotiability of Guaranty Under Seal. — No one but
the party to whom the guaranty under seal is given can sue on it.
State Nat. Bank v. Haylen, 14 Neb.
480, 16 N. W. 754.
38. Massachusetts. — Edgerly v.
Lawson, 176 Mass. 551, 57 N. E.
1020; Tuttle v. Binney, 12 Mete. 452.
Michigan. — Tinker v. McCauley, 3
Mich. 188.
New York. — Miller v. Gaston, 2
Hill 192.
Pennsylvania. — McDoal v. Yeo-
mans, 8 Watts. 361.
Wisconsin. — Ten Eyck v. Brown, 3
Pin. 452.
39. Tuttle V. Bartholomew, 12 Met.
(Mass.) 452; McDoal v. Yeomans, 8
Watts. (Pa.) 361.
40. True v. Fuller, 21 Pick. (Mass.)
140.
41. United States.— Central Trust
Co. V. Bank, 101 U. S. 68, 25 L. Ed.
876.
loTva. — EHibuque First Nat. Bank
V. Carpenter, 41 Iowa 518.
Michigan. — Phelps v. Church, 65
Mich. 231, 32 N. W. 30.
Minnesota. — Phelps v. Sargent, 69
Minn. 118, 71 N. W. 927.
New York. — Everson v. Gere, 122
N. Y. 290, 25 N. E. 492.
42. Robbins v. Bingham, 4 Johns.
(N. Y.) 476.
43. Louisville Trust Co. v. Rail-
road Co., 75 Fed. 433; Lemmon v.
Strong, 59 Conn. 448, 22 Atl. 293;
Wooley V. Moore, 61 N. J. L. 16, 22
Atl. 293; Craig v. Parks, 40 N. Y.
181.
44. Ashland Bank v. Jones, 16
Ohio St. 145; Reed v. Garvin, 12 S.
& R. 100; Smith v. Dickinson, 6
Humph. (Tenn.) 261.
45. Rogers v. Harvey, 143 Ky. 88,
136 S. W. 128.
46. Stillman v. Northrup, 109 N.
Y. 473, 17 N. E. 379.
See, also. Tucker v. Blandin, 48
Hun 439; 125 N. Y. 69.
Compare Briggs v. Latham, 36
Kan. 205, 13 Pac. 129.
§ 359
SUEETYSIIIP AND GuAEANTY.
37G
although given for the benefit of others." This is the general rule,
but there are a few cases that hold that the party for whose use
the contract is made, which is evidenced by the contract itself,
may sue in his own name, and that such guaranty under seal is
negotiable/^
Thus, in Illinois, a third party for whose benefit a contract is
made may bring assumpsit in his own name, on the contract,
whether the contract is simple or under seal.^^
§ 359- Guaranty of Collection. — A guaranty of a collection of
a note or debt is dift'erent from a guaranty of payment. On the
subject of guaranty of payment, the rule is not uniform. One
line of decisions hold in case of a guaranty of the collection of a
note, that it is not necessary for the holder to try collection by legal
proceedings, provided it would be of no avail.^* The guaranty is
that the guarantor will pay if the holder uses due diligence and
fails to collect. He must employ the usual means to collect of the
maker, unless such means would be unavailing on the account of
the insolvency of the maker.^^ So if a suit would be unavailing,
47. Maine. — Farmington v. Ho-
bert, 74 Me. 416.
Massachusetts. — Flynn v. Ins. Co.,
115 Mass. 449; Huntington v. Knox,
7 Cush. 374.
New Jersey. — Loeb v. Barris, 50
N. J. L. 382.
New York. — Henricus v. Englert,
137 N. Y. 488, 33 N. B. 550.
Pennsylvania. — De Bolle v. Ins.
Co., 4 Whart. 68.
Rhode Island. — Woonsocket Rub-
ber Co. V. Banigan (R. I.), 42 Atl.
512.
48. Huckabee v. May, 14 Ala. 263;
Rogers v. Gosnell, 51 Mo. 466; Cos-
ter V. Mayor, 43 N. Y. 399; Hough-
ten V. Milburn, 54 Wis. 554, 12 N. W.
23, 11 N. W. 517.
49. Webster v. Fleming, 178 111.
140, 52 N E. 975, affirming Dean v.
Walker, 107 111. 540, and overruling
Harms v. McCormick, 132 111. 104,
22 N. E. 511.
50. Connecticnt. — Beardsley v.
Hawes, 71 Conn. 39, 40 Atl. 1043.
Massachusetts. — Sanford v. Allen,
1 Cush. 473.
Minnesota. — Dewey v. W. B. Clark
Investment Co., 48 Minn. 130, 50 N.
W. 1032.
Nebraska. — Central Investment
Co. V. Miles, 56 Neb. 272.
New York. — First National Bank
v. Story, 200 N. Y. 346, 93 N. E.
940, reversing 131 App. Div. 472, 115
N. Y. Supp. 421.
Pennsylvania. — McClurg v. Fryer,
15 Pa. St. 293; McDoal v. Yeomans,
8 Watts 361.
Termont. — Wheeler v. Lewis, 11
Vt. 265.
West Tirginia. — Middle States,
etc., Co. V. Engle, 45 W. Va. 588.
51. Dillman v. Nadelhoffer, 160 111.
121, 43 N. E. 378; Bester v. Walker,
4 Gil. (111.) 3.
377 GUAEANTY. § 359
and this can be shown, then the guarantor becomes liable without
suit brought against the principal.*^^
In other jurisdictions the guarantor becomes liable only after
the note has been sued upon and by due diligence it could not be
collected.^'
The rule is that the guarantor agrees to pay the debt in case
it cannot be collected out of the principal debtor by the exercise
of due or reasonable diligence. This diligence is held to be a suit
against the principal debtor, a judgment, issuing of execution
and its return unsatisfied. But the better doctrine is that if it
can be shown that the principal debtor is insolvent, no suit need
be brought against him in order to make the guarantor liable.
But where a party who holds a note secured by mortgage, sells the
note and guarantees its collection, and at the same time assigns
the mortgage, thereby furnishing the purchaser the means of ob-
taining paj^Tuent of any part or the whole of the debt, it may well
be claimed that the plain import of the guarantor's contract is
that he will pay the debt, provided that by due diligence it can-
not be collected out of the debtor or out of the mortgage, and that
he will not be held liable until the mortgage security has been
exhausted or resorted to without avail.^*
If a party guarantees the pa>Tnent of a debt, it is absolute, and
he becomes liable as soon as it becomes due and remains unpaid.^^
And a guarantor upon an original undertaking is liable with the
52. Camden v. Doremus, 3 How. See, also, Ely v. Bibb, 4 J. J.
(U. S.) 515, 11 L. Ed. 705; Thompson Marsh. (Ky.) 71; Shepard v. Shears,
V. Armstrong, Breese (111.) 53; 35 Tex. 763.
Stone V. Rockefeller, 29 Ohio St. 54. Borman v. Carhartt, 10 Mich.
625; First National Bank v. Story, 338; Dewey v. W. B. Clark Invest-
200 N. Y. 346, 93 N. E. 940, revers- ment Co., 48 Minn. 130, 50 N. W.
ing 131 App. Div. 472, 115 N. Y. 1032; Brainard v. Reynolds, 36 Vt.
Supp. 421. 614; Borden v. Gilbert, 13 Wis. 670.
53. Voorhies v. Atlee, 29 Iowa 49; Compare Jones v. Ashford, 79 N.
Bosman v. Akeley, 39 Mich. 710; C. 172.
Chatham Nat. Bank v. Pratt, 135 N. 55. Leonhardt v. Citizens Bank
Y. 423, 32 N. E. 236; Craig v. Parks, of Ulysses, 56 Neb. 38, 76 N. W. 452;
40 N. Y. 181; Moakley v. Riggs, 19 Vetter v. Welz & Zerweck, 143 App.
Johns. 69; Gettig v. Schautz, 101 Div. (N. Y.) 121, 127 N. Y. Supp.
Wis. 229, 77 N. W. 191; French v. 1069; Canavan Bros. Co. v. Bend-
Marsh, 29 Wis. 649. heim, 128 N. Y. Supp. 435.
§ ^60 Suretyship and Guaranty. 378
principal debtor ; his guaranty is absolute, and he becomes abso-
lutely liable for breach of the principal contract. ^"^
Where the maker of a note becomes insolvent and a non-resi-
dent before maturity of the debt, the payee need not follow the
maker, but may sue the guarantor on the note f and the burden
of proof is on the guarantor to show that the non-resident had
property within the State where he formerly resided, sufficient
to settle the debt or part of it.^^
§ 360. What is Due Diligence, — One class of cases holds that
the guarantor agrees to pay the debt upon the condition that the
guarantee should diligently prosecute the principal debtor with-
out avail, using all ordinary legal means to that end, and exhaust
any security that he may have, before proceeding against the guar-
antor by suit ; that due diligence, in the absence of any special
facts, requires the institution of a suit at the first regular term
after maturity of the obligation, and obtaining of judgment and
execution thereon as soon as practicable by the ordinary rules and
practices of courts.^^ And this condition is not satisfied or done
away with by proof that the principal was insolvent and that an
action against him might have been fruitless.^'' However, a mere
delay to prosecute the principal for a short time is not sufficient to
negative the use of due diligence ; but such delay may be continued
so long as to release the guarantor as a matter of law.^^ Thus, a
delay of four months to begin suit does not show diligence.®^ And
56. Bagley v. Cohen, 121 Cal. 604, Sloan, 135 N. Y. 371, 32 N. E. 231;
53 Pac. 1117. Northern Ins. Co. v. Wright, 76 N.
See Dwight v. Guanajuato Min. &. Y. 445; Getty v. Schautz, 101 Wis.
Mill. Co., 142 App. Div. (N. Y.) 354, 229, 77 N. W. 191; French v. Marsh,
126 N. Y. Supp. 1083. 29 Wis. 649.
57. Fall V. Youmans, 67 Minn. 83, 61. Yager v. Kentucky Title Co.,
69 N. W. 697. 23 Ky. Law Rep. 2240, 66 S. W. 1027;
'68. Fall V. Youraans, 67 Minn. 83, Sherman v. Pedick, 35 App. Div. (N.
69 N. W. 697. Y.) 15, 54 N. Y. Supp. 467; McFar-
.'')9. Voorhies v. Atlee, 29 Iowa 49; lane v. City of Milwaukee, 51 Wis.
Chatham Nat. Bank v. Pratt, 135 691, 8 N. W. 728; Day v. Elmore, 4
N. Y. 423, 32 N. B. 236; Getty v. Wis. 190.
Schautz, 101 Wis. 229, 77 N. W. 191. C2. Chatham Nat. Bank v, Pratt,
60. Salt Springs Nat. Bank v. 135 N. Y. 423, 32 N. E. 236.
37d GuAfiANTY. § 361
a failure to sue promptly for each installment of interest when
due, will operate to discharge the guarantor as to such interest.*^
When the legal holder relies on diligence by action, he must
institute suit against the debtor at the first term of the proper
•court after action has accrued, and must prosecute such proceed-
ings to judgment and execution at the earliest period within his
power, and if any delay is had in obtaining judgment, such result
must not grow out of his consent or his knowledge. In those
States where the obligee is not required to bring suit on account
of the insolvency of the debtor, it is a condition precedent to the
recovery against the guarantor, that the obligee shows such in-
fiolvency.®'*
§ 361. Discharge of Guarantor. — The general rule is if the
creditor does an act which injures the guarantor or his rights, or
fails to do an act which his duty enjoins upon him, and such omis-
sion injures the guarantor, he is discharged; and he is released
from liability whenever the terms of the contract have been ma-
terially altered, for a guarantor, like a surety, may stand upon the
very terms of his undertaking.®^ The change of time of perform-
ance of the contract without his consent will discharge him.®® So
where bonds are guarantied to be paid at a certain time, the guar-
antor is not liable until that time arrives, though the principal
may be liable before.®^ And a dissolution of a firm to whom the
guaranty is addressed, will work a revocation.®^ And whenever
the debt is satisfied, either by payment in money or by property,
the guarantor is discharged.®^
63. Sherman v. Pedrick, 35 App. 67. Union Trust Co. v. Detroit
Div. (N. Y.) 15, 54 N. Y. Supp. 467. Motor Co., 117 Mich. 631, 76 N. W.
64. Dillman v. Nadelhoffer, 160 112.
111. 121, 43 N. E. 378. 68. Byers v. Hickman Grain Co.,
65. Holmes v. Williams, 177 111. 112 Iowa 451, 84 N. W. 500; Schoon-
586, 53 N. E. 93; Black's Appeal, 83 over v. Osborne, 108 Iowa 453, 79
Mich. 513, 47 N. W. 342; Cambia N. W. 263.
Iron Works v. Keynes, 56 Ohio St. Dissolution of corporation re-
501, 47 N. B. 548; Boalt v. Brown, leases guarantor. Mason v. Stand-
13 Ohio St. 364. ard Distilling & Distributing Co., 85
66. Newman v. King, 54 Ohio St. App. Div. (N. Y.) 520, 83 N. Y. Supp.
273, 43 N. E. 683. 343.
As to discharge by extension of 69. Carson v. Reid, 137 Cal. 253,
time see § 363 herein. 70 Pac. 89; Stanford v. Coram, 26
§ 362
SUEETYSHIP AND GuAKANTY.
38a
But it is decided that a person can not be deprived of the benefits
of a guaranty by acts done without his consent or acquiescence.™
And want of consideration as to one of two guarantors will not
relieve the other from liability. ^^ Nor will the fact that payments
by the debtor were not applied in reduction of the indebtedness
which was guaranteed affect the liability of the guarantor under
whose direction the application, was made.'^
§ 362. Discharge by Change in the Principal Contract. — Any
material alteration in the contract of guaranty discharges the guar-
antor.^^ And so a guarantor is entitled to the benefit of a security
given by his principal, and if it is surrendered without his con-
sent he is released.'* But the change in the form of the debt
does not injure the guarantor. Thus, the change of part of an
account into notes does not aifect the liability of the guarantor.^"*
Mont. 285, 67 Pac. 1005; Brown v.
Mason, 55 App. Div. (N. Y.) 395, 66
N. Y. Supp. 917; Taylor v. Simpkins,
38 Misc. R. (N. Y.) 246, 77 N. Y.
Supp. 591; Rudolph v. Hewitt, 11
S. D. 646, 80 N. W. 133.
Acceptance of notes without the
consent of the guarantor discharges
him. Fritz v. Monakad, 135 App.
Div. (N. Y.) 689, 120 N. Y. Supp.
329; Rosenberg v. Kloffer, 117 N. Y.
Supp. 102.
Compare People's Bank v. Stew-
art, 152 Mo. App. 314, 133 S. W. 70.
But. a note signed by the principal
and guarantor is held not to release
the latter. McFarlane v. Wadhams,
176 Fed. 82, 99 C. C. A. 602, rev'g
165 Fed. 987.
70. Canavan Bros. Co. v. Bend-
heim, 128 N. Y. Supp. 435.
71. Crump v. J. F. Case Thresh-
ing Machine Co., 136 Ky. 60, 123 S.
W. 333.
72. Desserich v. Meile & Heaney
Mfg. Co., 48 Colo. 370, 109 Pac. 949.
7.3. Georgia. — Mutual Loan &
Banking Co. v. Hope, 112 Ga. 729, 38
S. B. 63.
Illinois. — Pahlman v. Taylor, 75
111. 629.
Indiana. — State v. Pepper, 31 Ind.
76.
loTva. — Marsh v. Griffin, 42 Iowa
403.
Michigan. — Tolman v. Griffins, 111
Mich. 301, 69 N. W. 649.
Ohio.— Boalt V. Brown, 13 Ohio St.
364.
Pennsylyania. — Fulman v. Seitz,
68 Pa. St. 237.
As to change of principal contract
as affecting surety see §§ 100, 101
herein.
A guaranty is not affected by a
change in the original contract
where there was no limitation in
the guaranty as to terms or agree-
ments between the parties. Peoria
Rubber Mfg. Co. v. Deering, 85 Mo.
App. 131.
74. Foerderer v. Moors, 91 Fed.
476.
75. Norton v. Eastman, 4 Me. 521;
Lennox v. Murphy, 171 Mass. 370,.
50 N. E. 644.
381 Guaranty. § 362
And so if the change is void for want of consideration, it does
not affect the guarantor, and he is not discharged.^"
If the guarantor's liability is increased by a subsequent agree-
ment, he is discharged. Thus, where he guarantees the fidelity of
an agent w^orking as salesman in a limited territory, and without
his consent the territory is increased, he is discharged, and he is
not liable for defaults of the agent after such increase."
But a guarantor is not released by a collateral agreement to
the original contract by his principal, which alters no provision
of the original contract or any obligation growing out of it;^^ nor
by an additional contract;'^ nor because the obligee takes addi-
tional security from the principal.^" Changing the contract so as
to include interest will release the guarantor,^^ or a change in the
form of the obligation,^^ or giving credit in case of the guaranty,*^
or change in building contract,^* or by the delivery of goods in-
stead of money,^^ or by the misapplication of the guaranty to pay
existing debt,^^ or by giving another note in the place of the one
guaranteed,^^ or by accepting notes other than those guaranteed.^^
If the same kinds of goods with same price are accepted, the guar-
antor is not released.^^
§ 363. Discharge by Extension of Time. — In order that a
guarantor may be discharged by the extension of time, there
must be a binding agreement between the creditor and the prin-
76. Slaughter v. Moore, 17 Tex. 82. Burch v. De Rivera, 53 Hun
Civ. App. 233, 42 S. W. 372. (N. Y.) 367, 6 N. Y. Supp. 206.
77. Plunkett v. Davis, Machine 83. Kimball W. W. Co. v. Baker,
Co., 84 Md. 529, 36 Atl. 115. 62 Wis. 526, 22 N. W. 730.
78. Morrill v. Baggott, 157 111. Compare Fisk v. Stone, 6 Dak. 35.
240, 41 N. E. 639. 84. Judah v. Zimmerman, 22 Ind.
79. Robertson v. Sully, 2 App. Div. 388.
(N. Y.) 152, 37 N. Y. Supp. 935. Changes in building contracts as
80. Calbrera v. American Colonial affecting surety see §§ 112a, 112b,
Bank, 214 U. S. 224, 29 Sup. Ct. 623, 112c, herein.
53 L. Ed. 974 ; Trustees of the Pres- 85. Wright v. Johnson, 8 Wend.
hyterian Board of Publication and (N. Y.) 512.
Sabbath School Work v. Gilliford, 86. Glyn v. Hertel, 8 Taunt. 208.
139 Ind. 524, 38 N. E. 404; Hill Mer- 87. Weed v. Grant, 30 Conn. 74.
cantile Co. v. Rotan Grocery Co. 88. Davis Sew. Mach. Co. v. Mc-
(Tex. Civ. App. 1910), 127 S. W. Ginnis, 45 Iowa 538.
1080. 89. Quinn v. Moss, 45 Neb. 614, 63
81. Springer Litho. Co. v. Wavey, N. W. 931.
97 Cal. 30.
§ 363
SUEETYSHIP AND GuAKANTY.
382-
cipal entered into without the consent of the guarantor, founded
upon a valuable consideration, for the extension of the time for
a definite period.^" A mere delay of the creditor, when he is not
bound to act with promptness, in enforcing payment will not dis-
charge the guarantor. ^^ If the guarantor agrees to the extension,
he is held liable.^^ If the contract is valid, it is immaterial whether
the guarantor is actually injured by the extension of the time of
payment of the debt, for the benefit of the maker ; the rule as to
a guarantor is the same as that applicable to a surety.^^
A guarantor may be released by extension of time of pa\Tnent
or shortening of time.®* The extension must be definite and separ-
ate from the principal contract,®^ and founded upon a sufficient
consideration,®'' and for a definite time.®^
90. Dodson v. Henderson, 113 111.
360; Many, Blanc & Co. v. Jacobson,
149 111. App. 240; Dixon v. Spencer,
59 Md. 246.
Extension of time of payment as
affecting surety see §§ 113 et. seq.
herein.
Does not release for liability in-
curred for work done before exten-
sion granted. O'Brien v. Champlain
Construction Co. (U. S. C. C), 107
Fed. 338.
In case of a continuing guaranty
an extension of time does not re-
lease. Hartwell & Richards Co. v.
Moss, 22 R. I. 583, 48 Atl. 941.
An extension of time does not re-
lease where the period of extension
does not extend to the end of the
period stipulated for in the guar-
anty. Alger V. Alger, 83 App. Div.
(N. Y.) 168, 82 N'. Y. Supp. 523.
91. English v. Landon, 181 111. 614,
54 X. E. 911; Pittsburg, etc., R. R.
Co. V. Shaeffer, 59 Pa. St. 350; Senti-
nel Co. V. Smith, 143 Wis. 377, 127
N. W. 943.
92. Harvey v. First Nat. Bank, 56
Neb. 320, 76 N. W. 870.
Extension with consent of surety
see § 117 herein.
93. Chicago, etc., Bank v. Black,
72 111. App. 147.
94. Illinois.— Loeff v. Taussig, 102
111. App. 398.
Massachusetts. — Lascelles v.
Clark, 204 Mass. 362, 90 N. E. 875.
Nebraska. — Ruston v. Dierks
Lumber Co. (Neb. 1902), 89 N. W.
616.
]Vew York. — Antisdel v. William-
son, 165 N. Y. 372, 59 N. E. 207, aff'g
55 N. Y. Supp. 1028; Leeds v. Dunn,
10 N. Y. 469; Wolrath v. Thompson,
6 Hill 540.
North Dakota. — Northern State
Bank of Grand Forks v. Bellamy,
19 N. D. 509, 125 N. W. 888.
95. Campbell v. Baker, 46 Pa. St.
243.
96. Tatum v. Morgan, 108 Ga. 336,
33 S. E. 940; Many, Blanc & Co. v.
Jacobson, 149 111. App. 240; Hayes
V. Wells, 34 Md. 512; Robinson v.
Wells, 38 Wis. 330.
Consideration for extension of
time discharging surety see § 114
herein.
97. Many, Blanc & Co. v. Jacob-
son, 149 111. App. 240; Jarvis v.
Hyatt, 43 Ind. 163.
See sec. 42 et seq.
383 Guaranty. §§ 364, 365-
§ 364. Discharge by Release or Negligent Loss of Securities.
— Where a guarantor is entitled to the benefit of security given
by the principal debtor to the creditor, a release or negligent loss
of such security by the creditor will discharge the guarantor pro
tanto.^^ Because the creditor must first resort to the securities for
payment by exercising due diligence,^® in order that the guarantor
can have the benefit of such collaterals/ If, however, the guar-
antor consents to a relinquishment by the obligee of such security,
he is not discharged from liability.^ The assignee of such guar-
anteed note is under no obligation to protect the guarantor by re-
sorting to the property pledged as security for the debt, which
was never in the assignee's possession or control.^ And if the as-
signee who has exhausted the mortgaged property when the debt
is due by legal process and appropriates the amount received on
the debt, he discharges his duty to the guarantor of the debt, what-
ever may have been received by the assignee.'*
Upon an absolute guaranty the creditor owes no duty to the
guarantor except to act in good faith and not to be guilty of laches
to his prejudice.^ So an assignee and guarantor of a note and
mortgage cannot be discharged from liability by the release of
the mortgage by mistake, where the release has been corrected,
and the mortgage is still a valid lien on the property as against
the mortgagor.®
§ 365. By Fraud and Duress. — The guarantor may be dis-
charged by fraud and duress on the part of the guarantee at the
Extension must be for a time cer- 1. Holmes v. Williams, 177 111.
tain to discharge surety, see § 119 386, 53 N. E. 93; Fuller v. Tomlin-
herein. son, 58 Iowa 111, 12 N. W. 127.
98. Foerderer v. Moors, 91 Fed. 2. Darnell v. Dolan (Tex. Civ.
476; Batcheldor v. Jennings, 83 111. App. 1910), 132 S. W. 857.
App. 569. 3. Blanding v. Wilson, 107 Iowa
Discharge of surety by acts of 46, 77 N. W. 508; Fuller v. Tomlin-
obligee as to security, see §§ 130, son, 58 Iowa 111, 12 N. W. 127.
132 herein. 4. Holmes v. Williams, 177 111.
If the agreement to release is 386, 53 N. E. 93.
nndum factum a co-guarantor is not 5. Hubbard v. Haley, 96 Wis. 578,
released. Commercial & Farmers' 71 N. W. 1036.
Nat. Bank v. McCormick, 97 Md. 703, 6. Kane v. Williams, 99 Wis. 65,
55 Atl. 439. 74 N. W. 570.
99. Middle States, etc., Co. v.
Engle, 45 W. Va. 588.
§ 3G6 Suretyship and Guaranty. 38-i
inception of the contract. But where the guarantor knows that
the undertaking of his principal is liable to be defeated, he must
be considered as entering into it with reference to such contin-
gency and, of course, will be held on his guaranty.^ But unless
fraud is clearly shown, the guarantor is not affected by the in-
validity of the original obligation.^
Where a party assigns an instrument and guaranties it, he can-
not show that the instrument is invalid.^
If the guarantor is induced by fraud to guaranty the contract
by the other parties, he is not liable ■,^^ but if the guarantee is an
innocent party, the fraud of the principal will not avoid the guar-
anty.^^
§ 366. Guaranty Covers Defects in the Original Contract —
Failure of Consideration. — A guaranty of a defective contract is
valid. Thus, where the debt is justly owing, the guarantor is liable,
though through some defect or incapacity of the principal the debt
could not be enforced against the latter.^^ So a guarantee of a
lease is valid, though only one of two lessees executed the lease.^*
So the guarantor of a note purporting to be made by two, where
the signature of one is unauthorized, is liable.^* And he is like-
wise liable in the case of a check though the name of the payee was
indorsed thereon without authority.^^ And a gaurantor is not re-
7. Sterns v. Marks, 35 Barb. (N. Wisconsin. — New Home Sewing
Y.) 565. Maeh. Co. v. Simon, 104 Wis. 120, 80
Duress as a discharge of surety, N. W. 71.
see § 32 herein. Fraud to induce surety to sign
8. Purdy v. Peters, 35 Barb. (N. contract, see § 126 herein.
Y.) 239. 11. Anderson v. Warne, 71 111. 20;
9. Zabriskie v. Railroad Co., 23 Powers v. Clarke, 127 N. Y. 417, 28
How. (U. S.) 381, 399, 16 L. Ed. 488; N. E. 402.
Remsen v. Graves, 41 N. Y. 475; 12. Erwin v. Downs, 15 N. Y. 576.
Erwin v. Downs, 15 N. Y. 576. 13. McLaughlin v. McGovern, 34
10. Indiana.— Morrison v. Schle- Barb. (N. Y.) ?08.
singer, 10 Ind. App. 665. 14. Sterns v.' Marks, 35 Barb. (N.
Penusjivania. — Strouse v. Querns, Y.) 565.
22 Pa. Super. Ct. 6. Bound ))y a forged indorsement.
Utah.— Jungk v. Reed, 9 Utah 49, Pennsylvania Trust Co. v. McElroy,
33 Pac. 236. 112 Fed. 509, 50 C. C. A. 371.
Washington. — Rathbone, Sard & 15. Boardman v. Hanna (U. S. C.
Co. V. Frost, 9 Wash. 162, 37 Pac. C), 164 Fed. 527, affirmed McKin-
.298.
585
GUAEAUTY.
§§367,368
leased by a false recital in the guaranty. ^^ If the contract be-
comes invalid for want of consideration, then the guarantor is re-
leased/'
§ 367. Revocation of a Continuing Guaranty. — Unless the
terms of a continuing guaranty forbid, it may be revoked on
notice/^ Such guaranty is revocable at the pleasure of the guar-
antor unless made to cover some specific transaction which is noi
exhausted, or unless it be founded upon a continuing considera-
tion, the benefit of which the guarantor cannot or does not re-
nounce/^ And the fact that the instrument is under seal cannot
-change this rule.^"
§ 368. Death of Guarantor. — The effect of the death of the
guarantor upon a contining guaranty has been determined differ-
ently by different courts. In some jurisdictions the death is held
to work a revocation of the guaranty. The guarantor's estate is
held bound in contracts upon which the liability exists at the time
of his death, although it may depend upon future contingencies.
'Bhit it is not held for liability which is created after his death
hj the exercise of a power or authority which he might at any
time revoke.^^
non V. Boardman, 170 Fed. 920, 96 C.
C. A. 136.
Compare National Bank of Rolla
v. First National Bank, 141 Mo. App.
719, 125 S. W. 513.
16. Darnell v. Dolan (Tex. Civ.
App. 1910), 132 S. W. 157.
17. Illinois. — Harvey v. Laurie, 13
111. App. 400.
Kentucky. — Walter A. Wood Mow-
ing & Reaping Machine Co. v. Land,
S8 Ky. 516, 32 S. W. 607.
New York. — Sawyer v. Chambers,
43 Barb. 622.
South Carolina. — Carroll County
Savings Bank v. Strother, 28 S. C.
604.
Engfland. — Cooper v. Joel, 1 De G.
P. & J. 240.
18. California. — White Sewing
25
Mach. Co. V. Courtney, 141 Cal. 674,
75 Pac. 296.
Connecticnt. — Gay v. Ward, 67
Conn. 147, 34 Atl. 1025.
Massachusetts. — Jordan v. Dob-
bins, 122 Mass. 168.
New York. — Agawam Bank v.
Strever, 18 N. Y. 502.
England. — Coulthart v. Clement-
son, 5 Q. B. D. 42.
19. Allen v. Kenning, 9 Bing. 618;
Offord v. Davies, 12 C. B., N. S. 748.
20. Jordan v. Dobbins, 122 Mass.
168; Offord v. Davies, 12 C. B., N. S.
748; Burgess v. Eve, L. R. 13 Eq.
450.
21. Aitkin v. Lang Adm'r, 106 Ky.
652, 51 S. W. 154; Hyland v. Hobish,
150 Mass. 112, 22 N. E. 765; Jordan
V. Dobbins, 122 Mass. 168; National
§ 369 Suretyship and Guaeanty. 386
But in other jurisdictions death does not revoke a continuing
guaranty, because it is not a mere mandate or authority invoked
ipso facto by the death of the guarantor; notice must be given
of it in order to revoke such guaranty.^^ Giving notice of death
brings that fact within the knowledge of the guarantee, and is
therefore a proper and sufficient notice to revoke the guaranty,^^
and if the executor is not empowered to continue the guaranty,
the guaranty is withdrawn."* But where the guarantor binds not
only himself, but his representatives, and representatives include
his executor, then notice only of the death of the guarantor is not
sufficient, and the estate is liable for indebtedness incurred by the
principal debtor after the guarantor's death, because the guarantee
was entitled to rely on the express provisions of the contract with
him, and can not be bound to take notice of the guarantor's death
as notice from his executor to determine the liability ; to absolve
the estate from further liability, the executor should have also
acted in his fiduciary capacity, and withdrew the continuing guar-
anty.2^
§ 369. Release of Co-Guarantor. — A release of a joint co-
guarantor without the consent of the other guarantors will release
them. So where one of several joint obligors withdraws from the
undertaking before the delivery of the instrument, and it is not
known by the other joint obligors, and the guarantee knowingly
accepts such contract, the other co-guarantors are released.^® One
reason why a release of one of several joint co-obligors discharges
all, is that by such release the right of contribution is cut off.^^
Eagle Bank v. Hunt, 16 R. I. 148, Fawcett, L. R. 15 Eq. 311; Coulthart
13 Atl. 115. V. Clementson, 5 Q. B. D. 42.
22. Gay v. Ward, 67 Conn. 147, 34 24. In re Silvester (1895), 1 Ch.
Atl. 1025; Coulthart v. Clementson, 573. This case criticises Coulthart
5 O. B. D. 42. V. Clementson, 5 Q. B. D. 42, which
Death does not release where holds that the guarantor's will
lETUaranty is a continuing one where should be constructive notice that
there is no provision to that effect, the guaranty is revoked both as to
In re Grace, 71 Law J., ch. 358, 86 the guarantor and his executor.
Law T. 144. 26. Potter v. Gronbeck, 117 111.
23. Gay v. Ward, 67 Conn. 147; 34 404, 7 N. E. 586.
Atl. 1025. 27. Clark v. Mallory, 83 111. App.
24. National Eagle Bank v. Hunt, 488, 185 111. 227, 56 N. E. 1099.
16 R. I. 148, 13 Atl. 115; Harriss v.
387 Guaranty. §§ 370,371
§ 370. What Law Governs. — It is a general rule that the
lex loci contractus determines the nature and legal quality of the
act done, whether it constitutes a contract, the nature and validity,
the obligation and legal effect of such contract, and furnishes the
rule of construction and interpretation.^^ 'So the law of the State
where the contract is executed, when its performance is guar-
anteed, and where the contract is to be performed, determines
the validity of the guaranty, although suit is to be enforced in
another State.^^ So where a foreign corporation is unlicensed
and doing business in a State in violation of its laws, a contract
of guaranty entered into by it is held void.^'' And so where a con-
tract is executed in a State in which it is valid, and a person then
agrees to guarantee its performance, the guaranty is valid,
though it is actually affixed in a State in which the contract is
void.^^ So a contract of guaranty executed in one State of the
performance of a contract which is to be performed there, is gov-
erned by the laws of that State, though the guaranty is made else-
where.^^ Thus, the law of 'the place where a letter of credit is
executed, and where the drafts made in pursuance thereof are
payable, governs the obligation of those who sign the letter. ^^
§ 371. Statute of Limitations. — The statute of limitations be-
gins to run in favor of the guarantor from the time he is liable
to suit, and this may or may not be the same time the principal's
debt becomes due.^* At common law a payment made upon a note
by the principal debtor before the completion of the bar of the
statute served to keep the debt alive both as to himself and the
surety or guarantor.^^ This is the rule in the United States where
28. Carnegie v. Morrison, 2 Met. 77; Cross v. Petree, 10 B. Mon. (Ky.)
397. 41?,.
29. McFarlane v. Wadham^, 176 38. Bissell v. Lewis, 4 Mirh. 450.
Fed. 82, 99 C. C. A. 602, rev's: 16.5 34. Hooper v. Hooper, 81 Md. 155;
Fed. 987; Bond v. Farwell Co., 172 State Bank v. Knotts, 10 Rich. L.
Fed. 58, 96 C. C. A. 546; Russell v. (S. C.) 543; Wofford v. Unger, 55
Burk, 14 Vt. 147. Tex. 480.
30. United States Gypsum Co. v. 35. Marnizinger v. Mohr, 41 Mich.
Central Railway & Equipment Co., 685; Whitcomb v. Whiting, 2 Doug.
152 111. Anp. 467. 652; Burleigh v. Stott, 8 B. & C. 36;
.•^l. Richter v. Frank, 41 Fed. 859. Wyatt v. Hodson, 8 Bing. 309.
32. Cowles V. Townsend, 37 Ala.
§ 371 Suretyship and Guaranty. 388
it has not been changed bv the statute."® At common law and in
those States where the common hiw prevails, a distinction is made
between those cases in which a part payment is by one of several
promisors of a note ly^fore the statute of limitations has attached,
and those in which payment is made after the completion of the
bar of the statute ; it being held in the former that the debt is
kept alive as to all, and in the latter that it is revived only to the
party making the payment."' iSo under the common law rule, part
payment by one of several joint debtors of a debt barred by limita-
tion, revives the debt as to him, and forms a new point from which
the statute begins to run, but does not revive it as against the other
joint debtors or guarantors.^^ The reason of this rule lies in the
principle that by withdrawing from a joint debtor the protection
of the statute, he is subject to a new liability not created by the
original contract of indebtedness, and so cannot be held by the
act of his co-debtor.
Where the guaranty is a continuing one, on which loans are
made from time to time, the statute of limitations does not begin
to run in favor of the guarantor until default of payment is
made.^^ And it seems that where the guaranty is limited to a
single transaction, the statute begins to run in favor of the guar-
jantor from the time when the guaranty is executed.*"
In case of a guaranty of a signature which is forged, such guar-
anty is broken when made, and the right of action accrues at once,
arid therefore the statute begins to run at the same time.*^
A guaranty of a barred debt is enforceable.*^ After the prin-
cipal contract has been barred, no acknowledgment of it by the
36. Quimby V. Putnam, 28 Me. 419; England.— Atkins v. Tredgold, 2
National Bank of Delavan v. Cotton, B. & C. 23.
53 Wis. 31, 9 N. W. 926. 38. Borden v. Peay, 20 Ark. 293.
37. Arkansas. — Biscoe v. Jenkins, 39. State Bank v. Knotts, 10 Rich.
5 Eng. 108. L. (S. C.) 543.
Kentncky. — Kimball v. Cummins, 40. Sollee v. Mengy, Bailey L. (S.
3 Mete. 327. C.) 620.
Maryland. — Hooper v. Hooper, 81 41. Lehigh Coal, etc., Co. v. Blake-
Md. 155, 31 Atl. 508; Elliott v. Nich- lee, 7 Pa. Dist. 32.
oils, 7 Gill. 72. 42. Shadburne v. Daly, 76 Cal. 355,
Massachnsetts. — Sigourney v. 18 Pac. 403; Miles v. Linnell, 97
Drury, 14 Pick. 387. Mass. 298; Flack v. Neill, 22 Tex.
253.
389 GUAEANTY. § 372
principal can take it out of the statute of limitations as to the
guarantor. The acts of the principal in such case has no more
effect on the guarantor than the acts of a stranger/^
§ 372. Payment of Debt by Guarantor. — If the guarantor has
to pay the debt when due he has an immediate right of action
against the principal.** And after he has paid the debt, pay-
ment by the principal to another co-guarantor will not release the
principal from his obligation to pay the guarantor making the
payment.*^ And if the guarantor has paid a debt guaranteed ver-
bally, he can recover against the principal, and the statute of
frauds will be no defense to such action, although it would be a
defense to an action brought on the guaranty;*^ the statute can
have no operation as between the original debtor and his guar-
antor."
Where, however, a guarantor pays the amount of his obligation
to the debtor instructing him to pay it to the creditor, of which
fact the latter has no knowledge, the guarantor will not be released
where the debtor does not pay it as directed.*^ It is presumed
where a guarantor makes a payment on the account of his prin-
cipal that he does it at the latter's request.*^
43. Meade v. McDowell, 5 Bing. 47. Godden v. Plerson, 42 Ala.
(Pa.) 195. 370; Ames v. Jackson, 115 Mass.
44. Cotton V. Alexander, 32 Kan. 512; Cahill v. Bigelow, 18 Pick.
339, 4 Pac. 259; Kimmel v. Lowe, (Mass.) 369; Lee v. Stowe, 57 Tex.
28 Minn. 265. 444.
45. Lowry v. Bank, 2 Watts & S. 48. Peoples' Bank v. Stewart, 152
(Pa.) 210. Mo. App. 314, 133 S. W. 70.
See, also. Slaughter v. Moore, 17 4^, Blanchard v. Blanchard, 133
Tex. Civ. App. 233. App. Div. (N. Y.) 937, 118 N. Y.
46. Beal v. Brown, 13 Allen Supp. 1095, affirming 61 Misc. K.
(Mass.) 114; Cahill v. Bigelow, 18 497, 113 N. Y. Supp. 882.
Pick. (Mass.) 369, 372; Lee v. Stowe,
57 Tex. 444,
§ 373 SUEETYSHIP AND GuAEANTY. 390
CHAPTER XIY.
GUARANTY WITHIN THE STATUTE OF FRAUDS.
Section 373. Fourth Section of the Statutes of Frauds.
374. When the Promise is Within the Statute.
375. Effect of the Statute of Frauds.
376. Principal Debtor — Incapacity to Contract.
377. New Consideration.
378. Consideration for Promise.
379. Third Party Taking Debtor's Property — Agreement to Pay
Creditor.
380. If Third Person is Not Liable.
381. Original Consideration.
382. Oral Promise to Indemnify Another.
383. Indemnity Contracts in General.
384. What is a Sufficient Consideration.
385. Novation.
386. Promise to Pay the Debt of Another — Statute of Frauds.
387. Promise to the Debtor to Pay His Debt.
388. To Whom Credit is Given.
389. Indorsing and Executing Notes for Another,
390. Assignment of Promissory Notes.
391. Agreement to Pay Debt of Contractor.
392. Relinquishment of a Lien.
393. Promise to Perform the Obligation of Another Person.
394. Del Credere Contracts.
395. To Whom the Promise Must Be Given.
396. Contract for the Benefit of the Promisor.
397. Special Promise — When Original Debtor is Released.
398. Sale of Goods — Liability of Third Person.
399. Joint Liability.
400. Oral Contract of Insurance.
401. To Answer for the Torts of Another.
Sec. 373. Fourth Section of the Statute of Frauds. — The
fourth section of the statute of frauds provides that no action shall
be brought whereby to charge the defendant upon any special
promise to answer for the debt, default or miscarriage of another
person, unless the agreement upon which such action shall be
brought, or some memorandum or note thereof, shall be in writing
and signed by the party to be charged therewith or some other
591
Guaranty Within the Statute of Fbauds. § 374
person thereunto by him lawfully authorized/ This statute, with
few modifications, has been re-enacted throughout the United
States.
§ 374- When the Promise is Within the Statute. — When the
contract is merely one of guaranty, that is, when it does not im-
pose any direct liability, and consists solely in an engagement for
performance by the principal, it is manifestly within the terms
of the statute, and the contract must be in writing. And there
must be a principal debtor, and the promise must be made to the
creditor to whom the principal debtor has already or is thereafter
to become liable. The express promise must create a liability to
pay for another; that is, the promisor must agree to pay if the
debtor does not, and the promise must be in writing.^
1. 29 Car. 2, ch. 3.
2. Spear v. Farmers & Merchants'
Bank, 156 111. 555, 41 N. E. 164; El-
der V. Warfield, 7 H. & J. (Md.) 391;
Birkmyr v. Darnell, Salk. 27.
Promise must be in writing. See
also:
California. — Tevis v. Savage, 130
Cal. 411, 62 Pac. 611.
Colorado. — Burson v. Bogart, 18
Colo. App. 449, 72 Pac. 605.
Connecticut. — Temple v. Bush, 76
Conn. 41, 55 Atl. 557.
Florida. — West v. Grainger, 46
Fla. 257, 35 So. 91.
Illinois. — McKinney v. Armstrong,
97 111. App. 208.
Indiana. — Indiana Trust Co. v.
Finitzer, 160 Ind. 647, 67 N. E. 520;
Blumenthal v. Tibbits, 160 Ind. 70,
66 N. E. 159.
Iowa. — Schoonover v. Osborne,
117 Iowa. 427, 90 N. W. 844.
Massachusetts. — Stowell v. Gram,
184 Mass. 562, 69 N. E. 342.
Minnesota. — Hanson v. Nelson, 82
Minn. 220, 84 N. W. 742.
Missouri. — Gansey v. Orr, 173 Mo.
532, 73 S. W. 477; Fussell v. Wil-
liams, 87 Mo. App. 518; Nunn v. Car-
roll, 83 Mo. App. 135.
Nebraska.— Swigart v. Genterf, 63
Neb. 157, 88 N. W. 159; Williams v.
Auten, 62 Neb. 832, 87 N. W. 1061.
New Jersey.— Hartley v. Sandford,
66 N. J. L. 627, 50 Atl. 454, 55 L. R.
A. 206.
New York. — Becker v. Krank, 75
App. Div. 191, 77 N. Y. Supp. 665.
affirmed 176 N. Y. 545, 68 N. E. 191;
Cardeza v. Bishop, 54 App. Div. 116,
66 N. Y. Supp. 408.
North Carolina. — Garrett-Wil-
liams Co. V. Hamill, 131 N. C. 57,
42 S. E. 448; Wood v. Atlantic & N.
C. R. Co., 131 N. C. 48, 42 S. E. 462.
Ohio. — Russell v. Fenner, 21 Ohio
Cir. Ct. R. 527, 11 O. C. D. 754.
Bhode Island. — Matteson v.
Moone, 25 R. I. 129, 54 Atl. 1058.
Texas. — Flannery v. Chidgey, 33
Tex. Civ. App. 638, 77 S. W. 1034.
Washington. — First National
Bank v. Gaddis, 31 Wash. 596, 72
Pac. 460; Barto v. Phillips, 28 Wash.
482, 68 Pac. 895.
Wisconsin. — Commercial National
§ 375
Suretyship and Guaranty.
392
In some jurisdictions, it is held to be a presumption of law
that if any contract, beneficial to the promisor, is the object sought
to be obtained by his promise, he must be understood to intend an
original undertaking which is not within the statute.^
As a general rule, in order that the promise can be held to be
within the statute, it is essential that there be a binding and sub-
sisting obligation or liability to the promisee, to which the promise
is collateral; that is, the party for whom the promise has been
made must be liable to the party to whom it is made-*
§ 375. Effect of the Statute of Frauds. — In some States ex-
tension of time to pay the debt to a certain day, by paying in-
Bank v. Goodrich, 107 Wis. 574, 83 A stockholder and president of a
N. W. 766. corporation not being individually
Canada. — Boorstein v. Moffatt, 36 liable for its debts only assumes a
N. S. 81. collateral liability as surety in
Rule applied to gnaranty by wife, guaranteeing payment of the cor-
Hanson v. Nelson, 82 Minn. 220, 84 porate debts. His contract guar-
N. W. 742; Nunn v. Carroll, 83 Mo. anteeing such a debt must be evi-
App. 135; Cardezav. Bishop, 54 App. denced by a writing in which the
Div. (N. Y.) 116, 66 N. Y. Supp. 408. consideration must be expressed or
Compare Linam v. Jones, 134 Ala. from which it may fairly be in-
ferred. Winne v. Mehrbach, 130
applied to guaranty by App. Div. (N. Y.) 329, 114 N. Y.
Hartley v. Sandford, 66 N. g^pp Qig
Promise to repay purchase price
of stocko If an officer of a corpora-
tion orally promises a prospective
purchase of the corporate stock to
repay the purchase price at any
time and the purchaser acts upon
the promise, the agreement is an
original contract, and is not within
the statute of frauds. The prom-
isor does not thereby agree to an-
swer for the debt, default or mis-
doings of another person, nor does
he agree to purchase goods, wares.
570, 33 So. 343
Rule
father.
J. L. 627, 50 Atl. 454, 55 L. R. A.
206.
3. Westmoreland v. Porter, 75 Ala.
452; Chapline v. Atkinson, 45 Ark.
67; Lerch v. Gallup, 67 Cal. 595, 8
Pac. 322.
4. Connecticut — Pratt v. Humph-
rey, 22 Conn. 317.
Illinois. — Ressiter v. Waterman,
151 111. 169, 37 N. E. 875; McKinney
V. Armstrong, 97 111. App. 208.
Massachusetts. — Preble v. Bald-
win, 6 Cush. 549; Alger v. Scoville,
1 Gray 391.
New York.— Tighe v. Morrison, merchandise or things in action.
116 N. Y. 263, 22 N. E. 164; Westfall Campbell v. Luebben, 90 Neb. 95,
V. Parsons, 16 Barb. 645. 132 N. W. 932; Trenholf v. Kloepper,
England.— Hargreaves v. Parsons, 88 Neb. 236, 129 N. W. 436.
13 Mees. & W. 561; Eastwood v. See, also, Schoeffer v. Strieder^
Kenyon, 11 Ad. & E. 438. 203 Mass. 467, 89 N. E. 618.
393 Guaranty Within the iStatute of Frauds. § 3TG
terest, is no consideration ; but where this is a consideration the
contract must be in writing. Thus, a parol agreement by the
debtor to pay interest for a year at a certain rate is not a sufficient
consideration,^ and if it would be a sufficient consideration the
contract must be in writing.*^ Under the statute of Illinois it is
not necessary to the existence of a valid contract to extend the
time of payment of a promissory note that such extension must
be in writing. Because the extension of time does not abrogate
the original contract so as to make an entire new contract resting
in parol, but has only the effect of extending the time of payment
fixed in the note to a day certain in the future for its perform-
ance. The new agreement is one to postpone the performance
agreed upon for a definite time for a full consideration.'
§ 376. Principal Debtor — Incapacity to Contract. — Where
one becomes surety for the performance of a promise made by a
person incompetent to contract, his contract is not purely acces-
sorial, nor is his liability necessarily ascertained by determining
whether the principal can be made liable. For incapacity of the
principal party promising to make a legal contract, if understood
by the parties, is the very defense of the principal for which the
surety assures the promisee, and the surety is therefore liable.*
Where there is no fraud, duress, deceit or violation of law or
public policy on the part of the payee in procuring the execution
of the promise, the surety in such case is liable, although the prin-
cipal be not.^
Thus, a minor's contract is not void, but voidable at his elec-
tion ; and until it is avoided it is a valid contract, l^or can a
third person avail himself of the minority of a debtor to obtain
any right or security or title. Infancy is a personal privilege,
of which no one can take advantage except the minor. ^^ So, it
5. Turner v. "Williams, 73 Me. 466. Iowa. — Jones v. Crosthwait, 17
6. Berry v. Pullen. 69 Me. 101. Iowa 393.
7. Reynolds v. Barnard, 36 111. Missouri. — Weed Sewing Machine
App. 218. Co. V. Maxwell, 63 Mo. 486.
8. Winn v. Sanford, 145 Mass. 302, New York.— Kimball v. Newall, 7
14 N. E. 119. Hill 116.
Compare § 380 herein. Vermont. — St. Albans Bank v. Dil-
9. Indiana.— Davies v. Statts, 43 Ion. 30 Vt. 122.
Ind. 103. 10. Kendall v. Lawrence, 22 Pick,
(Mass.) 540.
§ 377 SUEETYSHIP AND GuAKANTY. 394
is said, a promise by a party to pay the debt of an infant, though
made upoii a sutHcient consideration, is a promise to pay the debt
of another, and must be in writing to be enforceable ; the doctrine
that there was no debt because the principal debtor was a minor
cannot prevail.^^
Some courts, however, hold that in case of a guaranty of a per-
son's contract who is incapacitated to contract, the guarantor is
not liable. As soon as the incompetent principal sets up his in-
ability to make the contract, the debt cannot then be collected
•either from him or his guarantor ; that the third party guaran-
tied something that did not exist, and hence he is not liable.^
Whether this doctrine is correct admits of doubt. The under-
taking of a surety is immediate and direct that the act shall be
done ; if not done, the surety becomes at once responsible, and the
creditor may sue him alone or him and the debtor together. In
case of guaranty the guarantor undertakes to pay if the principal
cannot; that is, he is liable only for the ability of the debtor to
perform this act. In the case of guaranty, non-liability of the
■debtor must first be shown before the guarantor becomes liable/^
§ 377- New Consideration. — The general rule is that v/here
there is in existence an obligation on the part of another and a
promise to perform that obligation if he does not, or to guaranty
his performance, it is not within the statute if it is made upon
a new consideration inuring to the benefit of the promisor, al-
though the former obligation is not extinguished, provided the
chief purpose of the promisor is to obtain a benefit to himself.^'*
11. Davis V. Statts. 43 Ind. 103; Ala. 570, 33 So. 343; Westmoreland
Dexter v. Blanchard, 11 Met. v. Porter, 75 Ala. 452.
(Mass.) 365. District of Colnmbia. — Williamson
But see § 380 herein. v. Hill, 3 Mackey 100.
12. King V. Summit, 73 Ind. 312; Florida.— Craft v. Hendrick, 39
Smith V. Hyde, 19 Vt. 54. Fla. 90, 21 So. 803.
See § 380. Georgia. — Bluthenthal v. Moore.
13. Reigart v. White, 52 Pa. St. 106 Ga. 424, 32 S. E. 344.
440. Illinois. — Power v. Rankin, 114
14. United States. — Mine and ill. 52, 29 N. E. 185; Borch-^'enius v.
Smelter Supply Co. v. Stockgrcw- Camiston, 100 111. 82; Crfford v.
ers' Bank, 173 Fed. 859, 98 C. C. A. Luhring, 69 111. 401; Beltine Cheml-
229. cal & Mfg. Co. v. Zulfer, 152 111. App.
Alabama. — Linam v. .Tones, 134
595
GuABANTY 'Within the (Statute of Feauds. § 377
This rule has been applied where the consideration to the prom-
isor was the retention of the possession of premises ;^'^ improve-
ments upon premises of which he was the mortgagee j^*^ the transfer
of goods to him ;" the securing of the commission due on a con-
tract/^ and the release of a person from imprisonment to enable
him to enter the promisor's emploj.^^
In determining whether an alleged promise is or is not a prom-
ise to answer for the debt of another, the following rules may be
applied: (1) If the promisor is a stranger to the transaction,
without interest in it, the obligations of the statute are to be
strictly upheld as a collateral undertaking; (2) but if he has a per-
sonal, immediate and pecuniary interest in the transaction in
which a third party is the original obligor, it is founded upon a
sufficient consideration, and is valid as an original contract. The
real character of a promise does not depend altogether upon form
308; Knisley v. Brown, 95 111. App.
516.
Indiana. — Voris v. Star City Build-
ing & Loan Ass'n, 20 Ind. App. 630,
50 N. E. 779.
Iowa. — Jones v. General Const.
Co., 150 Iowa 194, 129 N. W. 830;
Carraher v. Allen, 112 Iowa 168, 83
N. W. 902.
Massachusetts. — Stebbins v. Scott,
172 Mass. 355, 52 N. E. 535; Fears v.
Story, 131 Mass. 47; Walker v. Hill,
110 Mass. 249.
Mississippi. — Biglane v. Hicks
(Miss. 1903), 33 So. 413.
Nebraska. — Fitzgerald v. Morris-
eey, 14 Neb. 198.
New York. — Schuerer & Sons r.
Stone, 130 App. Dlv. 796, 115 N. Y.
Supp. 440, aff'd 200 N. Y. 560, 93 N.
E. 1116; Berg v. Spitz, 87 App.
Div. 602, 84 N. Y. Supp. 532; Hess v.
Rothschild, 34 Misc. R. 800, 69 N. Y.
Supp. 957; Smith v. Schneider, 84
N. Y. Supp. 238: Boeff v. Rosenthal,
37 Misc. R. 852, 76 N. Y. Supp. 988.
North Carolina. — Whitehurst v.
Hyman, 90 N. C. 487.
Ohio. — Crawford v. Edison, 45
Ohio St. 239, 13 N. E. 80; Jarumsch
V. Otis Iron & Steel Co., 23 Ohio Cir.
Ct. R. 122.
Pennsylvania. — Sargent v. Johns,
206 Pa. St. 386, 55 Atl. 1051; Merriam
y. McManus, 102 Pa. Ct. 102; Baxter v.
Hurlburt, 15 Pa. Super. Ct. 541.
Tennessee. — Lookout Mountain R.
R. Co. V. Houston, 85 Tenn. 224, 2
S. W. 36.
Texas. — Spann v. Cockran, 63 Tex.
240.
West Virginia. — Mankin v. Jones,
68 W. Va. 422, 69 S. E. 981.
15. Linham v. Jones, 134 Ala. 570,
33 So. 343; Baxter v. Hurlburt, 15
Pa. Super. Ct. 541.
16. Boeff V. Rosenthal, 37 Misc. R,
(N. Y.) 852, 76 N. Y. Supp. 988.
17. Berg v. Spitz, 87 App. Div. (N.
Y.) 602, 84 N. Y. Supp. 532; Sargent
V. Johns, 206 Pa. St. 386, 55 Au.
1051.
18. Hess V. Rothschild, 34 Misc. R.
(N. Y.) 800, 69 N. Y. Supp. 957.
19. Berg v. Spitz, 87 App. Div. (N.
Y.) 602, 84 N. Y. Supp. 532.
§§ 378, 739 Suretyship and Guaranty. 396
of expression, but largely upon the situation of the parties, and
upon whether they understood it to be a collateral or direct
promise.^''
§ 378. Consideration for Promise. — A contract, whether re-
quired to be in writing, to be valid, must be based upon a sufficient
consideration. So where a creditor accepts from a third person in
payment and satisfaction of his debt, the obligation of such third
person, it is a new undertaking, and not within the statute of
frauds, but the contract must be supported by a sufficient con-
sideration.^^ There must be a sufficient consideration in every
case, even if the contract is in writing. But a consideration is
not of itself sufficient to supply the place of a writing where one
is necessary. To take the case out of the statute, there must be a
consideration moving from the promisor, either from the creditor
or debtor; that is the feature which imparts to the promise the
character of an original undertaking.^^
§ 379. Third Party Taking Debtor's Property — Agreement to
Pay Creditor. — A debtor may place his property in the hands of
a third party for the purpose of having it converted into money
to pay his debt. If the receiver takes the property for such pur-
pose and promises the debtor to pay such debt, the promise need
not be in writing. ^^ Thus, where lumber was sold to A on the
credit of B, and A pays therefor, a promise by B to the vendor to
pay him for the lumber will be in the nature of an original con-
tract to pay the debt of a third party, founded upon a sufficient
20. Davis v. Patrick, 141 U. S. 479, ceptance and promise to pay Is
12 Sup. Ct. 58, 35 L. Ed. 826. within the Statute of Frauds and no
21. Carlisle v. Campbell, 76 Ala. recovery can be had thereon. Hilt
247. V. Wright, 144 Ky. 806, 139 S. W.
The consideration need not be ex- 946.
pressed in a written promise to an- 22. Mallory v. Gillett, 21 N. Y. 412.
swer for the debt of another, but 2.S. Dock v. Boyd, 93 Pa. St. 92;
may be established by parol. Peele Wait v. Wait, 28 Vt. 350.
V. Powell, 156 N. C. 553, 73 S. E. 234. See, also, Burson v. Bogart, 49
A verbal acceptance of an order Colo. 410, 113 Pac. 516; Forks v.
.s-lven by one partner on another for Thorpe, 209 Mass. 570, 95 N. E. 955.
tha former's individual debt, there Transfer to wife, see Mclntire v.
being no consideration for the ac- Schiffer, 31 Colo. 246, 72 Pac. 1056.
397 Guaranty Within the iStatute of Fkadds. §§ 380, 381
consideration, and not within the statute.^* But the property must
be placed in the hands of a third party uncondition-
ally, and the third party must take it for that pur-
pose. If the third party has the liberty to pay the debt out of his
-own property, and not out of the debtor's, then a promise to pay
the creditor comes within the statute.^ So where the assignee ar-
ranges to pay the assignor's debt after he has reduced or con-
verted the property into cash, a verbal promise to the debtor's
creditor before such conversion into money, to pay the debt is
void, as it comes within the statu te.^^
Where the money is in the hands of the promisor no written
contract is required. Thus, where a party agrees to pay board for
workmen, and has the money for that purpose, an oral contract is
sufficient.^''
§ 380. If Third Person is Not Liable. — Some courts hold that
if the third person is not liable, then the undertaking is not within
the statute. This doctrine is applied where the promise is to answer
for the debt, default or miscarriage of an infant or other parties
incapacitated to make a valid contract ; that is, there is no third
person liable in contemplation of law, and the promise is not within
the statute,^^ but is an original undertaking of the guarantor, and
he is therefore liable as on any other debt he may contract.^^ If
it is an ultra vires contract of a corporation, the rule is the same,
and the guarantor alone is liable.^'*
§ 381. Original Consideration. — The statute by its terms
operates on cases where there is a primary or original debt or ob-
ligation upon which is based a collateral promise of another per-
son, to answer for such primary or original debt or obligation. If
24. Watkins v. Sands, 4 111. App. 28. Anderson v. Spence, 72 Ind.
207. 315; Chapin v. Lapham, 20 Pick.
25. Ackley v. Parmenter, 98 N. T. (Mass.) 467; Harris v. Huntbach, 1
42.0 ; Shaaber v. Bushong, 105 Pa. St. Bur. 373.
514. But see § 376 herein in this con-
26. Belknap v. Bender, 75 N. T. nection.
446. 29. Harris v. Huntbach, 1 Bur.
27. Chicago, etc., Coal Co. v. Lid- 373.
^ell, 69 ni. 639. 80. Drake v, Flewellen, 33 Ala.
106.
§ 381
Suretyship and Guaranty.
398
there be in fact no such primary debt or obligation^ or the same is
extinguished and discharged, or if the promise be not to answer
for such primary debt or obligation, or if it be a primary or direct
promise for a sufficient consideration, the statute does not apply
or require a promise to be in writing. Because the statute con-
templates the mere promise of one person to be responsible for
another, and cannot be interposed as a cover and shield against
the actual obligation of the defendant himself. If the third per-
son makes an entire but substantial and independent contract with
the creditor to perform, or for some service, this may be enforced
though not in writing, as it is not collateral.^^
81. United States. — Choate v.
Hoogstraat, 105 Fed. 713, 46 C. C.
A. 174; Champlain Const. Co. v.
O'Brien (U. S. C C), 117 Fed. 271,
788.
Alabama. — Pake v. Wilson, 127
Ala. 240, 28 So. 665; Jolly v. Walker,
26 Ala. 690.
Arkansas. — Gale v. Harp, 64 Ark.
462, 43 S. W. 144.
California. — Kilbride v. Moss, 113
Cal. 432, 45 Pac. 812.
Colorado. — Mclntire v. Schiffer, 31
Colo. 246, 72 Pac. 1056; Waid v. Hob-
son, 17 Colo. App. 54, 67 Pac. 176;
Baldwin Coal Co. v. Davis, 15 Colo.
App. 371, 62 Pac. 1041.
Illinois.— Lusk v. Throop, 89 111.
App. 509, affirmed 180 111. 127, 59
N. E. 529; Clifford v. Luhring, 69 111.
401; Jones v. McLauglin-Patrick
Const. Co., 99 111. App. 320; Knisely
V. Brown, 95 111. App. 516.
Iowa. — Marr v. Burlington, C. R.
& N. Ry. Co., 121 Iowa 117, 96 N. W.
716.
Kentucky. — Simpson v. Carr, 25
Ky. Law Rep. 849, 76 S. W. 346.
Micln'gan. — Hagadorn v. Stronach,
81 Mich. 56, 45 N. W. 650.
Missouri. — Bradshaw v. Cockran,
91 Mo. App. 294; Beeler v. Finnell,
85 Mo. App. 438; Yeoman v. Mueller,
33 Mo. App. 343.
Montana. — Hefferlin v. Karlman,
29 Mont. 139, 74 Pac. 201.
Nebraska. — Weilage v. Abbott, 3
Neb. (Unoff.) 157, 90 N. W. 1128;
Learn v. Upstill, 52 Neb. 271, 72 N..
W. 213; Fitzgerald v. Morrissey, 14
Neb. 188, 15 S. W. 233.
New Jersey. — Gallagher v. Mc-
Bride, 66 N. J. L. 360, 49 Atl. 582;
Hartley v. Sandford, 66 N. J. L. 40,
48 Atl. 1009; Herendeen Mfg. Co. v.
Moore, 66 N. J. L. 74, 48 Atl. 525.
New York. — Ward v. Hasbrouck,
65 N. Y. Supp. 200, affirmed 169 N.
Y. 407, 62 N. E. 434; Crook v. Scott,
65 App. Div. 139, 72 N. Y. Supp. 516,
affirmed 174 N. Y. 520, 66 N. E. 1106;
Williams v. Bedford Bank, 63 App.
Div. 278, 71 N. Y. Supp. 539; Hardt
V. Becknagel, 62 App. Div. 106, 70
N. Y. Supp. 782; Roussel v. Mathews,
62 App. Div. 1, 70 N. Y. Supp. 886;
Scherzer v. Muirhead, 84 N. Y. Supp.
159; Bayles v. Wallace, 56 Hun 428,.
10 N. Y. Supp. 191.
Ohio. — Crawford v, Edison, 45
Ohio St. 239, 13 N. E. 80.
Oklahoma. — Kesler v. Cheadle, 12
Okla. 489, 72 Pac. 367.
Oregron. — Manary v. Runyon, 43
Ore, 495, 73 Pac. 1028; Kiernan v..
SQO' Guaranty Within the Statute of Frauds. § 382
The object of a collateral promise is to promote the interest of
another; the object of an original promise is to promote the in-
terest of the party making the promise. The former is within the
operation of the statute, the latter is not affected by it. When the
promisor is himself to receive the benefit for which the promise is
exchanged, it is not usually material whether the original debtor
remains liable or not.^^
§ 382. Oral Promise to Indemnify Another. — The general
rule is that an oral promise by one person to indemnify another
for becoming a guarantor for a third person is not within the stat-
ute, and need not be in writing, for the assumption of the re-
sponsibility is a sufficient consideration for the promise,^^ This
is now the law in England.^*
There the inducement for the promise of indemnity is a bene-
fit to the promisor which he did not have before, or would not
otherwise enjoy, as where he has a personal, immediate and pecu-
niary interest in the principal transaction, and is therefore him-
self a party to be benefited by performance on the part of the
Kratz, 42 Ore. 474, 69 Pac. 1027, 70 Knowledge by the obligee of the
Pac. 506. real consideration is not essential.
Pennsylyania. — Sargent v. Johns, Choate v. Hoogstraat, 105 Fed. 713,
206 Pa. St. 386, 55 Atl. 1051; Pizzi 46 C. C. A. 174.
V. Nardello, 23 Pa. Super. Ct. 535; 32. Calkins v. Chandler, 36 Mich.
May V. Walker, 20 Pa. Super. Ct. 324.
581. 33. Dent v. Arthur, 156 I\Io. App.
Rhode Island.— Matteson v. Moone. 472, 137 S. W. 285 ; Hartley v. Sand-
25 R. I. 129, 54 Atl. 1058; Stillman v. ford, 66 N. J. L. 40, 48 Atl. 1009;
Dresser, 22 R. I. 389, 48 Atl. 1. Jones v. Bacon, 145 N. Y. 446, 40
Sonth Dakota. — Meldrum v. Kene- N. E. 216; Tighe v. Morrison, 116 N.
fick, 15 S. D. 370, 89 N. W. 863. Y. 263, 22 N. E. 164; Chapin v. Mer-
Texas.— Lemmon v. Box, 20 Tex. rill, 4 Wend. 657; Hyde v. Equitable
329. Life Assur. Soc, 61 Misc. R. 518, 116
Washington. — Dimmick v. Collins, N. Y. Supp. 219; Rose v. Wallen-
24 Wash. 78, 63 Pac. 1101. berg, 31 Ore. 269, 44 Pac. 382.
Wisconsin. — Young v. French, 35 34. Thomas v. Cook, 8 Barn. & C.
"Wis. Ill, 728; Reader v. Kingham, 13 C. B.
Compare Puckett v. Bates, 4 Ala. (N. S.) 344; Guild v. Conrad (1894),
390; Ellison v. Jackson, 12 Cal. 542; 2 Q. B. 885; Wildes v. Dudlow, 19 Eq.
Noyes v. Humphreys, 11 Graft. (Va.) 198.
635; Ware v. Stephenson, 10 Leigh
(Va.) 155.-
§ 382
SufiETYSHIP AND GUARANTY.
400
promisee, the coutract is not within the statute, and may be sup-
ported by a verbal undertaking. In reality the undertaking is to
pay a debt which is in substance a debt of the promisor.^^ A con-
tract of indemnity is not a contract with the creditor to answer for
the default or miscarriage of the debtor, but is independent of the
principal contract or obligation, and constitutes an entirely dis-
tinct and separate undertaking with which the creditor has noth-
ing to do. In such cases the assumption of liability by the prom-
isor is itself a sufficient consideration to support the promise re-
gardless of any subservient interest of the promisor, and the fact
of his becoming co-surety with the promisee to it need not be in
writing.^® Indemnity contracts are not within the statute, as they
are not made to pay the debt of another f' this is the great weight
of authority and trend of all the late decisions which are not con-
trolled by precedent.^^ This doctrine is based upon the ground
that the contract of indemnity is not within the statute, as the
statute concerns only contracts of suretyship ; that the contract is
an original one, and therefore not within the statute.
35. Davis v. Patrick, 141 U. S. 479,
12 Sup. Ct. 58, 35 L. Ed. 826; Emer-
son V. Slater, 22 How. (U. S.) 28, 43,
16 L. Ed. 360; Smith v. Delaney, 64
Conn. 264, 29 All. 496; Potter v.
Brown, 35 Mich. 274.
36. lOTra. — Mills v. Brown, 11
Iowa 314.
Kentncky. — Dunn v. West, 5 B.
Mon. .376.
Michigan. — Boyer v. Soules, 105
Mich. 31, 62 N. W. 1000.
Nebraska. — Minick v. Huff, 41 Neb.
516, 59 N. W. 795.
New Hampshire. — Holmes ▼.
Knight, 10 N. H. 175.
Wisconsin. — Vogel v. Melms, 31
Wis. 306.
37. Fidelity & Casualty Co. of
New York v. Lawlor, 66 Minn. 144,
66 N. W. 143; Warren v. Abbott, 65
N. J. L. 99, 46 Atl. 575; Barth v.
Graf, 101 Wis. 27, 76 N. W. 1100.
38. Alabama. — Commercial Fire
Ins. Co. V. Morris, 105 Ala. 498, 18
So. 34.
Illinois. — Resseter v. Waterman,
151 111. 169, 37 N. E. 875.
Indiana. — Anderson v. Spencer, 72
Ind. 315.
Iowa. — Mills V. Brown, 11 Iowa
314.
Louisiana. — Hoggart v. Thomas, 35
La. Ann. 298.
Maine. — Smith v. Laywood, 5 Me.
504.
Massachusetts. — Aldrich v. Ames.
9 Gray 76.
Minnesota. — Goetz v. Foos, 14
Minn. 265.
New Hampshire. — Apgar v. Hiler,
58 N. H. 523.
New York. — Jones v. Bacon, 145
N. Y. 446, 40 N. E. 216.
Vermont. — Braman v. Russell, 20
Vt. 205.
England. — Yorkshire, etc., Ins.
Co. V. Maclure, 19 Ch. Div. 478;
Guild V. Conrad (1894), 2 Q. B. 885.
401 Guaranty Within the -Statute of Frauds. § 383
But another line of cases holds that an indemnity is within the
statute of frauds, because wherever there is a liability in existence,
the performance of which by the debtor will put an end to liability
upon the special promise, the special promise amounts to a promise
to pay the debt of another, and must be regarded as collateral to
it."^ This doctrine has been distinctly repudiated in England and
by the majority of the courts in the United States, And the oral
promise to indemnify a person for becoming surety on another's
bail bond, according to the minority of the courts, is within the
statute of frauds, and must be in writing/**
§ 383. Indemnity Contracts in General. — In some jurisdic-
tions the promise, to come within the statute of frauds, must re-
sult in a contract of suretyship ; because it is held that the obliga-
tion arising from the special promise should be purely a collateral
one ; therefore a contract of indemnity does not come within the
statute of frauds, and need not be in writing.
But in other jurisdictions, a mere contract of indemnity is
within the statute; because it is argued that wherever there is a
liability in existence, the performance of which by the debtor will
put an end to the liability upon the special promise, the specific
promise amounts to a promise to pay the debt of another, and must
be regarded as collateral to it. Therefore the statute of frauds
applies to a contract of indemnity. Thus, if a person signs an
obligation as surety upon the promise of indemnity by one not
bound by the same instrument, the promise is within the statute,
as being a promise to answer for the default of the principal upon
his implied liability to his surety. A promise to indemnify one
for becoming a surety of another must be in writing.*^ But an ex-
89. Mississippi. — May v. Williams, Tennessee. — Macy v. Childress, 2
61 Miss. 125. Tenn. Ch. 438.
Missouri. — Hunt v. Ford, 142 Mo. England. — Green v. Croswell, 10
283, 44 S. W. 228; Bissig v. Britten, Ad. & E. 453.
59 Mo. 204. 40. May v. Williams, 61 Miss. 125,
Ohio. — Ferrell v. Maxwell, 28 Ohio where the authorities are reviewed.
St. 383. Green v. Croswell, 10 Ad. & El. 453.
Pennsylvania. — Nugent v. Wolfe, Compare Thomas v. Cook, 8 Barn.
Ill Pa. St. 471. & Cr. 728.
Sontli Carolina. — Simpson v. 41. Illinois. — Brand v. Whelan, 18
Nance, 1 Spears 4. 111. App. 186. Compare Resseter v.
Waterman, 151 111. 169, 37 N. E. 875.
26
§ 384
Suretyship A^D Guaranty.
402
ccption is generally recognized where the indemnitor is himself
primarily liable for the debt guaranteed.^^ But other courts hold
that a promise to indemnify one for becoming a surety for another
need not be in writing, because it is an original undertaking/^
The promise is held not to be within the statute, because it is
not to be made to the credit, but to one who is debtor." Others
hold the oral promise to be enforcable, because the implied obliga-
tion of the principal to indemnify his surety arises from a subse-
quent fact, that is, the payment of the debt by the surety/^
§ 384. What is a Sufficient Consideration. — The considera-
tion to support the promise to pay the debt of another is the same
as in other contracts, and when sufficient the statute of frauds does
not apply, as it is a new consideration. There is a sufficient con-
sideration to support an agreement to answer for the debt of an-
other, when the creditor is induced by the promisor to relinquish
Mississippi. — May v. Williams, 61
Miss. 125.
Missouri. — Bissig v. Britton, 59
Mo. 204.
Ohio. — Ferrell v. Maxwell, 28
Ohio St. 383.
Pennsylyania. — Nugent v. Wolfe,
111 Pa. St. 471.
England. — Green v. Croswell, 10
Ad. & El. 453.
42. Brand v. Whelan, 18 111. App.
186.
43. Georgia. — Jones v. Shorter, 1
Ga. 294.
Indiana. — Anderson v. Spencer, 72
Ind. 315.
Iowa. — Townsend v. White, 102
Iowa 477. 71 N. W. 337; Mills v.
Brown, 11 Iowa 314.
Massachusetts. — Phelps v. Stone,
172 Mass. 355, 52 N. E. 517; Aid-
rich V. Ames, 9 Gray 76.
Michigan. — Potter v. Brown, 35
Mich. 274.
Minnesota. — Goetz v. Foos, 14
Minn. 265.
New Hampshire. — DeMerritt v.
Bickford, 53 N. H. 523.
New Jersey. — Apgar v. Hilar, 24
N. J. L. 812.
New Torli. — Tighe v. Morrison, 116
N. Y. 263, 22 N. E. 164; Sanders v.
Gillespie, 59 N. Y. 250.
Vermont. — Braman v. Russell, 20
Vt. 205.
Wisconsin.— Earth v. Graf, 101
Wis. 27, 76 N. W. 1100; Vogel v.
Melms, 31 Wis. 306.
England. — Wilde v. Dudlow, L. R.
19 Eq. Cas. 198; Cripps v. Hartnoll.
4 Best & S. 414.
44. Anderson v. Spencer, 72 Ind.
315; Aldrich v. Ames, 9 Gray (Mass.)
76; Reader v. Kingman, 13 C. B. (N.
S.) 344.
45. Dunn v. West, 5 B. Mon. (Ky.)
376; Lucas v. Chamberlain, 8 B.
Mon. 276.
See, also, Read v. Nash, 1 Wils.
305; DeWolf v. Rebaud, 1 Pet. (U.
S.) 476, 7 L. Ed. 227; Emerson v.
Slater, 22 How. (U. S.) 28, 16 L.
Ed. 360.
403 Guaranty Within the Statute of Frauds. § 385
a valid lien which he has upon property to secure a debt/" A
promise to pay the debt of another arising out of some new con-
sideration or benefit to the promisor, or harm to the promisee
moving to the promisor, either from the promisee or the original
debtor, is not within the statute, although the original debt still
subsists and remains unaffected by such agreement.''^ It being
the own debt of the promisor, he cannot therefore rely upon the
statute of frauds as being a promise to pay the debt of another.*^
A mere verbal promise to be liable for costs in a suit is void for
want of a written contract/* But if the sureties execute the obli-
gation for costs themselves, and the consideration was the institu-
tion of a suit, it will bind them.^''
§ 385. Novation. — In every novation there are four essentials :
A previous valid contract or obligation, an agreement of all the
parties, of whom there must be at least three, to the new contract,
the extinguishment of the old debt, and a valid new one. Unless
the old debt is extinguished the new agreement is without con-
sideration. The creation of the new obligation and the extinguish-
ment of the old take place at the same time, and the statute of
frauds does not apply.^^ Where the original debtor is discharged
46. Bluthenthal v. Moore, 106 Ga. 48. Stebbins v. Scott, 172 Mass.
424, 32 S. E. 344. 356, 52 N. E. 535.
As to relinquishment of a lien, 49. Bullard v. Johns, 50 Ala. 382.
see § 392 herein. 50. McDonald v. Wood, 118 Ala.
47. Florida.— Craft v. Hendrick. 39 589, 24 So. 86.
Fla. 90, 21 So. 803. 51» Georgia. — Mize v. Mashburn
Illinois.— Runde v. Runde, 59 111. 8 Ga. App. 408. 69 S. E. 316.
98; Wilson v. Bevans, 58 111. 232; Indiana, — Kelso v. Flaney, 104
Hirsch v. Carpet Co., 82 111. App. Ind. 180.
234. Massachusetts.— Ellis v. Felt, 206
Iowa.— Mills V. Brown, 11 Iowa Mass. 472, 92 N. E. 702; Troudeau
314. V. Poutre, 165 Mass. 81, 42 N. E. 508.
Michigan. — Calkins v. Chandler, 36 Michigan. — Martin v. Curtis, 119
Mich. 320. Mich. 655, 77 N. W. 690; Murerone v.
Missouri. — Besshears v. Rowe, 46 American Lumber Co., 55 Mich. 622
Mo. 501; Adams v. Huggins, 78 Mo. 22 N. W. 67.
App. 219. New Mexico. — Dougherty v. Van
New York.— Mallory v. Gillett, 21 Riper (1911), 120 Pac. 333.
N. Y. 412. New York. — Ryan v. Pistone, 89
PennsjiTania. — Clymer v. De- Hun (N. Y.) 78, 35 N. Y. Supp. 81,
Youn?, 54 Pa. St. 118. 157 N. Y. 705, 52 N. E. 1126.
Wisconsin. — Putney v. Farnham,
27 Wis. 187.
§ 386 SUEETYSHIP AND GUARANTY. 404
and the promisor is substituted as the debtor, the statute has no
application to such transaction.''^
To make the promise collateral and bring it within the statute,
it must be a promise to answer to the promisee for the debt, default
or miscarriage of a third person, who is liable to the promisee
therefor and continue so liable.^^ The statute never applies to
contracts of novation, which must always be proved.^*
§ 386. Promise to Pay the Debt of Another — Statute of
Frauds. — Collateral contracts to pay the debt of another must be
in writing to be valid. Original and independent contracts need
not be in writing, and a parol agreement then is sufficient. The
settled rule is that where the agreement to pay the debt of another
is original and independent, it is not within the statute of frauds,
and of course need not be in writing ; and the agreement may be
regarded as original, although it directly involves the interest of
or concerns a third party, or may relate to an act or the perform-
ance thereof, by one not a party to the contract.''''
In order that the promise shall be within the statute, it is essen-
tial that there be a binding and subsisting obligation or liability
52. Hyatt v. Bonham, 19 Ind. App. 5i. Hamlin v. Drummond, 91 Me.
256, 49 N. E. 361; Griffin v. Cunning- 175, 39 Atl. 551.
ham, 183 Mass. 505, 67 N. E. 660. 55. Resseter v. Waterman, 151
A promise to answer for the ob- 111. 169, 37 N. E. 875; Eddy v. Rob-
ligation of another is deemed an erts, 17 111. 505; Jones v. McLaugh-
original obligation of the promisor, lin-Patrick Const. Co., 99 111. App.
and need not be in writing where 320; Huff v Simmers, 114 Md. 548,
the promise is for an antecedent ob- 79 Atl. 1003.
ligation of another, and is made See § 174 and cases there cited,
upon the consideration that the A parol promise to answer for the
party receiving it cancels the ante- debt of another which is not en-
cedent obligation and accepts the forceable is defined to be " an un-
new promise as a substitute there- dertaking by a person not before
for. McCallum v. McClarren, 15 liable for the purpose of securing or
Ida. 374, 98 Pac. 200. performing the same duty for which
53. Board of Com'rs of Gibson the party for whom the undertak-
County V. Cincinnati Steam-Heating ing is made continues liable." Peele
Co., 128 Ind. 240, 27 N. E. 612; Dow- v. Powell, 156 N. C. 553, 73 S. E.
ney v. Hinchman, 25 Ind. 453; Hall 234, citing and approving Sheppard
v. Alford, 105 Ky. 664, 20 Ky. Law v. Newton, 139 N. C. 533, 52 S. E.
Rep. 1482, 49 S. W. 444; Hargraves 143.
V. Parsons, 13 Mees. & W. 560.
405 GuAEANTY Within the Statute of Frauds. § 387
to the promisee to which the promise is collateral, that is, the
part}^ for whom the promise has been made must be liable to the
party to whom it is made.^^ And the liability of the person for
whom the promise is made, to the promisee, must be one which is
capable of enforcement. Unless it appears that some person other
than the promisor has incurred an actual liability with respect
to the subject-matter of the promise, the agreement is not within
the statute, although the third person may be under an imperfect
or merely moral obligation to respond."^
If the agreement is an original and independent one, it is not
within the statute ; but if it be collateral to the agreement of any
person to answer for the debt of that other person, it is within
the statute.^^
§ 387. Promise to the Debtor to Pay His Debt. — Contracts
between the debtor and another party to take the debt and pay it
as a consideration of a new contract between them is not within
the statute. Thus, where the promisor agrees to pay the debt of
the debtor and takes property of the latter as a consideration,
this is an original promise not within the statute.^'' So a promise
66. Connecticnt. — Pratt v. Hum- graves v. Parsons, 13 Mees & W.
phrey, 22 Conn. 317. 561.
Illinois. — Resseter v. Waterman, A subsequent oral promise by
151 111. 169, 37 N. E. 875. a partner to pay for a piano pur-
Massachusetts. — Perkins v. Little- chased by a minor son is a promise
field, 5 Allen 370; Alger v. Scoville, to pay for the son's debt and void
1 Gray 391. under the statute of frauds. Fisher
New York.— Tighe v. Morrison, 116 v. Lutz, 146 Wis. 664, 132 N. W. 592.
N. Y. 263, 22 N. E. 164. 59. California.— Meyer v. Parsons,
England.— Eastwood v. Kenyon, 11 129 Cal. 653, 62 Pac. 216.
Ad. & E. 438. Idaho. — Mineau v. Imperial
57. Resseter v. Waterman, 151 111. Dredge & Exploration Co., 19 Ida.
169, 37 N. E. 875; Downey v. Hinch- 458, 114 Pac. 23.
man, 25 Ind. 453; Smith v. Mayo, 1 Iowa. — Anderson v. Anderson, 150
Allen (Mass.) 160; Tighe v. Morri- Iowa 665, 130 N. W. 716.
son, 116 N. Y. 263, 22 N. E. 164. New Hampshire.— Gill v. Ferrln,
58. Spear v. Farmers & Mechan- 71 N. H 421, 52 Atl. 558.
ics' Bank, 156 111. 555, 41 N. E. 164; New York Ackley v. Skinner, 65
McDowell, Stocker & Co. v. Sharp, Misc. R. 142, 120 N. Y. Supp. 1005.
157 111. App. 165; Perkins v. Little- Texas.— Hill v. Hoeldtke (Sup.
field, 5 Allen (Mass.) 370; Har- 1912), 142 S. W. 871 affg. (Civ. app>
1910), 128 S. W. 642.
§§ 388, 389 (SuEETYSiiir and Guaranty. 406
to a chattel mortgagee by a purchaser of the mortgagor's property,
to pay the debtor's obligation, is not within the statute, as the
property taken is a sufficient consideration. *''' So taking the assets
of a partnership and agreeing to pay its debts is an original ob-
ligation, and the statute does not apply.®^ And the promise of the
grantee of land to pay the incumbrance on the land sold, as part
of the consideration, is not within the statute.^' In all such trans-
actions where the promisor receives a consideration, the transac-
tion is not collateral, but original, and need not be reduced to writ-
ing.
§ 388. To Whom Credit is Given. — Whether a contract comes
within the statute of frauds depends wholly on the agreement. If
the party agrees to be originally bound, the contract need not be
in writing ; but if his agreement is collateral to that of the prin-
cipal debtor, it is that of a surety to another, and the agreement
must be in writing. It makes no difference in such cases whether
the promise is made prior to the passing of the consideration or
afterwards. If it is made before, and is a part of the original con-
tract that security shall be given, then the original consideration
ior the contract will be sufficient to uphold the promise; but if
lthe promise is made after the original contract has been fully exe-
.cuted, then the promise must be based upon a new consideration.
In either case the contract must be in writing, and the latter must
'iiave a new consideration.-^
§ 389. Indorsing and Executing Notes for Another. — An
agreement to execute a note as surety for another is a promise to
TVasliington. — Don Yook v. Wash- Indiana. — Lance v. Pearce, 101
ington Mill Co., 16 Wash. 459, 47 Ind. 595.
Pac. 964. Iowa. — Langdon v. Richardson, 58
60. Provenchee v. Piper, 68 N. H. Iowa 610, 12 N. W. 622.
31 36 Atl. 552. Massachusetts. — Walker v. Hill,
Uhert V. Schonger, 144 App. Div. 119 Mass. 249; Cahill v. Bigelow, 18
(N. Y.) 696, 129 N. Y. Supp. 545. Pick. 369.
61. Shufeldt v. Smith, 139 Mo. 267. Missouri.— Glenn v. Lehnen, 54
62. Flint V. Winter Harbor Land Mo. 45.
Co., 89 Me. 420, 36 Atl. 634. IVew York.— Rogers v. Kneeland,
Compare Parsons v. Kelso, 141 13 Wend. 114.
Mo. App. 369, 125 S. W. 227. Wisconsin.— Champion v. Doty, 31
6.^ Illinois.— Moshier v. Kitchell, Wis. 190.
87 111. 18.
40i7 Guaranty Within the Statute of Frauds. §§ 390, 391
answer for his debt, and must, therefore, be in writing/* So an
agreement by a third party to draw for a creditor a draft for his
debtor for the amount of his own debt, is a promise to pay the
debt of another, and must be in writing.*^'^
§ 390. Assignment of Promissory Notes. — The statute of
frauds in relation to the liability of an assignor of a promissory
note, is not applicable to cases where a guaranty accompanies the
assignment.^^ The assignor owes the assignee, and that particular
mode of paying him is adopted. He guarantees, in substance, his
own debt. Though the debt of a third person be incidentally guar-
anteed, it is not necessary that the contract shall be in writing."
The case of a holder of a third person's note assigning it for value
with a guarant}-, is in effect the paying his own debt ; though he
incidentally guarantees the debt of a third person. It is not
"within the statute of frauds. ^^
§ 391. Agreeing to Pay Debt of Contractor. — In many in-
stances a contractor fails to pay his workmen or for material for
building, and the laborers and material men continue as before
on the promise of the owner of the building that he will see that
they are paid. The general rule in such cases is this : WTiere the
64. Dee v. Downs, 57 Iowa 589, 11 67. Darst v. Bates, 95 111. 493.
N. W. 2; Willis v. Shinn, 42 N. J. L. 68. Indiana.— Beaty v. Grim, 18
138; Greenwich Bank v. Oppenheim, Ind. 131.
133 App. Div. 586, 118 N. Y. Supp. Micliigran.— Thomas v. Dodge, 8
297; Harburg India Rubber Comb Mich. 50.
Co. V. Martin, 71 Law J. K. B. 529 Minnesota.— Wilson v. Hentges, 29
(1902), 1 K. B. 778, 50 Wkly. Rep. Minn. 102, 12 N. W. 151.
449 86 Law T. 505. Missonri. — Barker v. Scudder, 56
Compare Baker v. Berry Hill Mo. 272.
Mineral Springs Co., 109 Va. 776, 65 ^ew York.— Cardell v. McNeil, 21
S. E. 656. N. Y. 336.
See Weeks v. Parsons, 176 Mass. ^orth Carolina.— Peele v. Powell,
570, 58 N. E. 157, as to parol agree- 156 N. C. 553, 73 S. E. 234.
ment between indorsers. Pennsylvania,~Malone v. Keener,
65. Chaplin v. Atkinson, 45 Ark. 44 Pa. St. 107.
€7; Carville v. Crane, 5 Hill (N. Y.) Wisconsin. — Wyman v. Goodrich,
483. 26 Wis. 21.
66. Smith v. Finch, 2 Scam. (111.) Compare Harsinger v. Newman, 83
321. Ind. 124; Dows v. Sweet, 120 Mass.
322, 127 Mass. 364, 134 Mass. 140.
§ 391 SUEETYSHIP AND GUARANTY. 408
leading object of the undertaking is to promote some objects of the
parly s own, his promise to pay is not within the statute, although
its eit'ect is to release or suspend the debt of another. Thus, where
a party had employed a contractor to build a house, who fails on.
account of financial inability to pay his workmen and material
men, and the person who is benefited by the performance of the
contract, in order to make the performance possible, promises to
pay for the labor and materials if the laborers and material men
will go on, such a promise is to answer for the debt of another,
yet it is not a contract of surety, and need not be in writing.
Such a promise is original, and not within the statute.^^ Because
the leading object is to promote some interest of his own, and so
the promise is not within the statute, although, the effect is to
release or suspend the debt of anotherJ**
The distinction is between a promise, the object of which is
to promote the interest of another, and one in which the object is
to promote the interest of the party making the promise. The
former is within the statute ; the latter is not affected by it. But
when the promisor is himself to receive the benefit for which the
promise is exchanged, it is not usually material whether the ori-
ginal debtor remains liable or notf^ this is the general rule, but
there are cases which hold that the statute applies in spite of the
benefit obtained, if the original liability is allowed to remain.^^
69. Nelson v. Boynton, 3 Met. Massachusetts. — Walker v. Hill,
(Mass.) 396; Hall v. Alfred, 105 Ky. 119 Mass. 249.
664, 20 Ky. Law Rep. 1482, 49 S. W. New York.— See Roussel v. Mat-
444; Roussel v. Matthews, 62 App. thews, 62 App. Div. 1, 70 N. Y. Supp.
Div. (N. Y.) 1, 70 N. Y. Supp. 886, 886, affirmed 171 N. Y. 634, 63 N. B.
affirmed in 171 N. Y. 634, 63 N. E. 1122.
1122; Pizzi v. Nardello, 23 Pa. Ohio.— Crawford v. Edison, 45
Super. Ct. 535; May v. Walker, 20 Ohio St. 239, 13 N. E. 80.
Pa. Super. Ct. 581. Pennsylyania.— Merriman v. Mc-
See Meldrum v. Kenefick, 15 S. D. Manus, 102 Pa. St. 102.
370, 89 N. W. 863. Wisconsin. — Kelly v. Schupp, 60
But compare Wood v. Atlantic & Wis. 76, 18 N. W. 725.
N. C. R. Co., 131 N. C. 48, 42 S. E. 71. Calkins v. Chandler, 36 Mich.
462; Boorstein v. Moffatt, 36 Nova 324; Jefferson v. Slagle, 66 Pa. St.
Scotia 81. 202.
70. United States. — Emerson v. 72. Sext v. Geise, 80 Ga. 698, 6 S.
Slater, 22 How. 28, 43, 16 L. Ed. 360. E. 174; Wilhelm v. Voss, 118 Mich.
Illinois.— Clifford v. Luhring, 69 106, 76 N. W. 308; Morrissey v. Kin-
Ill. 401. sey, 16 Neb. 17, 19 N. W. 454.
409 Guaranty Within the Statute of Feauds. § 392
§ 392. Relinquishment of a Lien. — If there is a new considei-
atiou moving from the promisee to the promisor, then the super-
added consideration makes a new agreement, which is not within
the statute of frauds. Thus, where a party releases a chattel mort-
gage upon property, and allows the mortgagor to sell the property,
in consideration that his debt shall be paid when the money is
received from the property thus sold, the oral promise to pay the
mortgagee who, of course, holds the note, subject to a lien for a
debt incurred by former owner, who agrees to pay the lien to the
holder of the lien forbearing to enforce the same, is not a promise
to pay the debt of another, and is not within the statute.''^ So
also if the owner of a vessel subject to a lien for a debt incurred
by the former owner, agrees to pay the lien, on the holder of the
lien forbearing to enforce the same, this is not a promise to pay
the debt of another within the statute of frauds,^* So where the
creditor has, in consideration of the promise of a third person,
relinquished some lien or advantage for securing his debt, and
transfers that interest or some equivalent thereof to the third
party, it is a new and independent contract between the parties,
although the result is that the pa^Tnent of the debt of another is
incidentally or indirectly affected.^^
But the weight of authority is that if there is no other consider-
ation for the promise, and the release of the lien upon the property
was not beneficial to the promisor, such promise to pay, unless in
writing, would be void under the statute.''®
But there is a conflict of authority. In Wisconsin it has been
held, which seems to militate against some prior decisions, that
so long as the original debt remains payable by the debtor to his
73. Bluthenthal v. Moore, 106 Ga. work for a sub-contractor, was en-
424, 32 S. E. 344; Powers v. Rankin, titled to a lien therefor, but waived
114 111. 52, 29 N. E. 185; Fears v. his right upon the promise of the
Story, 131 Mass. 47. contractor to pay the amount due
74. Fears v. Story, 131 Mass. 47. him, there was an independent
75. Simpson v. Carr, 25 Ky. Law promise on the part of the con-
Rep. 849, 76 S. W. 346; Curtis v. tractor, for which the waiver of the
Brown, 5 Cush. (Mass.) 488; Fur- Hen was a sufficient consideration,
bish V. Goodman, 98 Mass. 296. McDonald v. General Construction
Rogers v. Gannett Lumber Co., Co., 152 Iowa 273, 132 N. W. 369.
154 N. C. 108, 69 S. E. 788. 76. Mallory v. Gillett, 21 N. Y.
Where a contractor agreed to 413: Weisel v. Spence, 59 Wis. 301,
complete the work free of all liens 18 N. W. 165; Young v. French, 15
and plaintiff, who had performed Wis. 116.
§ 392 ,Sdeetyship and Guaranty. 410
creditor, any arrangemeut by whicli another promises to pay that
debt is within the very letter of the statute, no matter from what
source the consideration of the latter promise is derived." In
New York, when the primary debt subsists and was antecedently
contracted, the promise to pay it is original when it is founded on
a new consideration moving to the promisor or beneficial to him,
and such that the promisor thereby carries under an independent
duty of payment irrespective of the liability of the principal
debtor.'^
in Massachusetts, if the main object of the promisor is some
benefit to himself, while the benefit to the debtor is only incidental,
the promise is not within the statute. ^^
In other States a new consideration of benefit to the promisor
is enough to take the case out of the statute f^ and the purpose of
the promisor is taken into consideration in some of the States.^^
And some decisions call the special attention to the intent of the
parties as the test of the agreement of the promise, whether ori-
ginal or not.^^
It seems that the intent of the parties and the various circum-
stances surrounding the transaction and the character of the prom-
ise should form satisfactory evidence of the real intention.^^
But the mere forbearance to enforce the lien is not sufficient to
take the case out of the statute ;^^ and where the lien is not re-
leased by the holder, the promise must be in writing.^"*
77. Hooker v. Russell, 67 Wis. 257, Jfebraska. — Fitzgerald v. Morris-
30 N. W. 358. ses, 14 Neb. 198, 15 N. W. 233.
78. White v. Rintoul, 108 N. Y. 222, Vermont.— Green v. Burton, 59 Vt.
15 N. E. 318. 423.
79. Nelson v. Boynton, 3 Met. 83. Montstephen v. Lakeman, L.
(Mass.) 396. R. 5 Q. B. 613.
80. Westmoreland v. Porter, 75 84. Iowa. — Vaughn v. Smith, 65
Ala. 452; Chaplin v. Atkinson, 45 Iowa 579, 22 N. W. 684.
Ark. 67. Maine. — Stewart v. Campbell, 58
81. Spann v. Cochran, 63 Tex. 240. Me. 459.
82. Illinois.— Clifford v. Luhring, Missouri.— Music v. Music, 7 Mo.
69 111. 401. 495.
Massaehnsetts. — Stratton v. Hill, New Hampshire. — Lang v. Henry,
134 I\Iass. 27. 54 N. H. 57.
Michigan. — Corkina v. Collins, 16 New York. — White v. Rintoul, 108
Mich. 478. N. Y. 222, 15 N. E. 318.
85. Griffin v. Hoag, 105 Iowa 499,
75 N. W. 372.
•411 Guaranty Witkia' the Statutk oi- Frauds. §§ 393, 394
§ 393. Promise to Perform the Obligation of Another Person.
— Wherever there is in existence an obligation on the part of an-
other, a promise to perform that obligation if he does not,
is not withtin the statute if it is made upon a new consideration
inuring to the benefit of the promisor, although the former obliga-
tion is not extinguished, provided the chief purpose of the prom-
isor is to obtain a benefit for himself.^®
But where the former obligation is not extinguished, or where
the new obligation is not substituted for it as a new considera-
tion, such promise is within the statute, and must be in writing
to be enforceable.*''
§ 394. Del Credere Contracts. — Del cj-edere is a contract
where the agent or factor, in consideration of an increase of com-
mission, absolutely engages to pay to his principal the price of
the goods which he sells for his consignor,** It is in the nature of
a contract of guaranty, where the factor or broker guarantees his
sales. Such an undertaking does not come within the statute of
frauds ; it is not collateral, but an original contract, an absolute
agreement that the prices for which the goods are sold, or the
debt created by the sale of the goods, shall be paid to the principal
when the credit given on the sale shall have expired.**
The liability of the factor is original, and his guaranty need
not be in writing.*'' The del credere guaranty is an original one
86. Illinois. — Powers v. Rankin, Examine:
114 111. 52. Indiana.— Palmer v. Blinn, 55 Ind.
Massachusetts. — Walker v. Hill, 11.
119 Mass. 249. Iowa. — Vaughn v. Smith, 65 Iowa
Nebraska.— Fitzgerald v. Morris- 579, 22 N. W. 684.
«ey, 14 Neb. 198, 15 N. W. 233. Michigan.— Studley v. Earth, 54
Oliio.— Crawford v. Edison, 45 Mich. 6, 19 N. W. 568.
Ohio St. 239, 13 N. E. 80. Pennsylvania.— Haverly v. Mer-
Pennsylvania. — Merriman v. Me- cer, 78 Pa. St. 257.
Manus, 102 Pa. St. 102. Wisconsin.— Hooker v. Russell,
Tennessee.— Lookout M. R. Co. v. 67 Wis. 257, 30 N. W. 358.
Houston, 85 Tenn. 224, 2 S. W. 36. 88. National Rubber Co. v. Sims,
Texas.— Spann v. Cochran, 63 Tex. 44 Neb. 148, 62 N. W. 514.
240. 89. Bradley v. Richardson, 23 Vt.
87. Sext V. Geise, 80 Ga. 698; Bias- 720; 2 Blatchf. 343.
dell V. Euckson, 157 111. App. 615; 90. Swan v. Nesmith, 7 Pick.
Palmer v. Blinn, 55 Ind. 11. (Mass.) 220.
§ 395 Suretyship and Guaranty. 412
entered into in performance of the guarantor's own responsibility,
and in no sense a special promise to pay the debt of another within
the meaning of the statute of frauds.'*^ The weight of authority
in the United States is that the contract is made directly with
the principal, to pay him on the expiration of the term of credit,
whether the purchaser be solvent or not, and is an original un-
dertaking without any relation to the debt or liability of another.
The law allows the factor to sue in his own name for the debt;
and the principal has also the right to sue, but not the exclusive
right. But this does not convert an express original undertaking
of the factor with his principal absolutely to pay a debt at ma-
turity, into a collateral and conditional agreement to pay the debt
if the purchaser does not. The guaranty by the factor differs
very especially from a promise to pay the debt of another in an-
other particular: The principal transfers a right in his ovni
name to collect the debt and hold the money, accounting only for
the net proceeds. But this does not come within the statute of
frauds.^^ Some late English cases and a few American cases hold
that the factor's liability is as a surety merely, and his contract of
guaranty comes within the statute. But the great weight of au-
thority in the United States is to the effect that one who sells under
such a commission is liable absolutely and originally to his prin-
cipal, or consignor, and the contract does not come within the
statute of frauds.'^
§ 395- To Whom the Promise Must Be Made. — In order that
the promise may be within the statute, it must be made to the
creditor under either rule.*** Hence, a promise made to the debtor
91. Minnesota. — Osborne v. Baker, Cleasby, 4 Maule & Sel. 566; Peele
34 Minn. 307, 25 N. W. 606. v. Northcote, 7 Taunt. 478.
Missouri. — Seeman v. Inman, 6 92. Sherwood v. Stone, 14 N. Y.
Mo App. 384. 267.
New Jersey. — Bullowa v. Orga, 57 93. Lewis v. Brehme, 33 Md. 112;
N. J. Eq. 428, 41 Atl. 494. Balderstone v. National Rubber Co..
New York.— Wolff v. Koppell, 5 18 R. I. 338, 27 Atl. 507.
Hill 458. See, also, Mackenzie v. Scott, 6
England. — Courturier v. Hastie, 8 Bro. P. C. 280; Grove v. Dubois, 1
Exch. 40; Wickham v. Wickbam, 2 Term R. 112.
Kay & J. 478; Grover v. D-ubois, 1 S4. Crim v. Fitch, 53 Ind. 214;
Term R. 112; Bize v. Dickanson, 1 Aldrich v. Ames, 9 Gray (Mass.) 76;
Term R. 285. Some English cases Lee v. Newman, 55 Miss. 365; East-
hold a contrary view — Morris v. wood v. Kenyon, 11 Ad. & E. 438.
413 Guaranty Within the .Statute of Feauds. § 396
to pay a debt which he owes himself to a third person is not a
promise to answer for the debt of another within the meaning of
the statute.^^
It cannot be said that the promise to indemnify the surety is
made to him as debtor and not as creditor. The surety and prin-
■cipal are bound to the creditor. It is when the surety has changed
his relation of debtor to the creditor and assumed that of creditor
to his principal, by paying to the original creditor the debt for
which both he and his principal were bound, that a right arises
to go against the guarantor on his contract. It is to the surety
under a conditional and contingent liability that the promise is
made ; but it is to him as creditor of the principal, and not as
debtor, that a right of action arises on it. Nor is it sufficient to
take the case from the operation of the statute that the liability
of the principal arises by implication rather than by express con-
tract. This is the doctrine held by those courts which require the
contract of indemnity to be in writing.^^
§ 396. Contract for the Benefit of the Promisor. — In some
•States the rule is that it is a presumption of law, that if any
direct benefit to the promisor is the object sought to be obtained by
his promise, he must be understood to intend an original under-
taking, which is not within the statute.^^
And wherever there is in existence an obligation on the part of
another, a promise to perform that obligation if he does not, or
to guarantee his performance, is not within the statute, if it is
9'5. Windell v. Hudson, 102 Ind. ation as consideration. Where In
521; Ware v. Allen, 64 Miss. 545, 1 consideration that plaintiff would
So. 738; Hoil v. Bailey, 58 Wis. 434, continue in the service of a cer-
17 N. W. 322. tain corporation in the success of
96. May v. Williams, 61 Miss. 125. which defendant was financially In-
So under whichever doctrine the terested, the latter promised and
promise is made, it must be made to agreed to pay her the compensa-
the creditor. tion to become due for her work
97. Westmoreland v. Porter, 75 in reliance on which plaintiff con-
Ala. 452; Chapline v. Atkinson, 45 tinned in the employment, it was
Ark. 67; Lerch v. Gallup, 67 Cal. held to be an original and not a
595, 8 Pac. 322. collateral undertaking by defend-
Continnance in employ of corpor- ant. Conrad v. Clarke, 106 Minn.
430, 119 N. W. 214. 482.
§ 397
SUEETYSHIP AND GuAEANTY.
414r
made upon a new consideration inuring to the benefit of the
promisor, although the former obligation is not extinguished, pro-
vided the chief purpose of the promisor is to obtain benefit to
himself.^*
§ 397. Special Promise — When Original Debtor is Released.
— Where the original debtor is entirely released and the obliga-
tion or promise of another is substitued in the place of that of the
debtor, who is discharged, a new debt is thereby created, binding^
on the substituted debtor, which is not affected by the provision
of the statute of frauds, which declares that every special promise
to answer for the debt, default or miscarriage of another is void
unless it is in writing.^* Thus, where a purchaser of personal
property agreed verbally, in consideration of the purchase, to pay
98. Alabama.— Thornton v. Wil-
liams, 71 Ala. 555.
District of Columbia.— Williamson
> . Hill, 3 Mackey 100.
Florida.— Craft v. Kendrick, 39
Fla. 90, 21 So. 803.
Georgia.— Bluthenthal v. Moore,
106 Ga. 424, 32 S. E. 344.
Illinois. — Resseter v. Waterman,
151 111. 169, 37 N. E. 875; Clifford v.
Luhring, 69 111. 401.
Indiana. — Dickson v. Conde, 148
Ind. 279, 46 N. E. 998; Edwards v.
Van Cleave, 47 Ind. App. 347, 94 N.
E. 596.
Massachusetts. — Schaeffer v.
Shieder, 203 Mass. 467, 89 N. E. 618;
Fears v. Story, 131 Mass. 47.
Nebraska. — Fitzgerald v. Morris-
sey, 14 Neb. 198, 15 N. W. 233.
Orpgon. — Harrison v. Birrell, 58
Oreg. 410, 115 Pac. 141.
Pennsjiyania. — Merriam v. Mc-
Manus, 102 Pa. St. 102.
South Carolina. — Lee v. Unkefer,
85 S. C. 199, 65 S. E. 989, 67 S. E.
246.
Tennessee. — Lookout Mountain R.
R. Co. V. Houston, 85 Tenn. 224, 2
S. W. 36.
Texas. — Spann v. Cochran, 63 Tex.
240.
99. Alabama. — Thornton v. Guice,
73 Ala. 321.
Georgia. — Howell v. Field, 70 Ga.
592.
Iowa. — Pratt v. Fishwild, 121
Iowa 642, 96 N. W. 1089.
New York. — Berg v. Spitz, 87 App.
Div. 602, 84 N. Y. Supp. 532.
Washington. — Nordby v. Wmson,,
24 Wash. 535, 64 Pac. 726.
The liability of a promisor to
answer ** upon special promise the
debt, default or miscarriage of an-
other person " under the statute of
frauds, is governed by whetlier the
promise creates an original obliga-
tion or is collateral to it and
merely superadded to the promise
of another to pay the debt, he re-
maining liable for in the latter in-
stance the promisor is not liable
unless there is a writing to that
effect, whether the promise is made
at the time the debt is created or
not. Peele v. Powell, 156 N. C. 553,
73 S. E. 234.
415
GuAEANTY Within the .Statute of Frauds. § 398
certain debts of his vendor due to a third person, the promise is
not a collateral, but an original promise, and, hence, not within
the statute.^
And when the promise is in effect to pay his own debt, though
that of a third person be incidentally guaranteed, it need not be
in writing.^
§ 398. Sale of Goods — Liability of Third Party. — A party
often becomes responsible for goods sold to another, and if the
goods are supplied entirely on the credit of the promisor, so the
third party is not liable at all, then the promise to pay is not
within the statute.^ Where, however, a third party would be-
1. Illinois. — Borchsenius v. Canu-
tson, 100 111. 82; Meyer v. Hartman,
72 111. 442; Wilson v. Bevans, 58
111. 232.
Indiana. — Parker v. Heaton, 55
Ind. 1.
Iowa. — Brown v. Kortz, 37 Iowa
239.
Massachusetts. — Curtis v. Brown,
18 Pick. 467.
Michigan. — Malcrone v. American
Lumber Co., 55 Mich. 622, 22 N. W.
67.
Minnesota. — Yale v. Edgerton, 14
Minn. 194.
Missouri. — Robbins v. Apgar, 10
Mo. 538.
New York. — Booth v. Eighmie, 60
N. Y. 238.
England.— Fairlie v. Denton, 8 B.
& C. 395.
See § 387 herein.
2. Illinois.— Darst v. Bates, 95 111.
493.
Massachusetts. — Catt v. Roat, 17
Mass. 229.
Nebraska. — Palmer v. Witcherly,
15 Neb. 98, 17 N. W. 364.
New York. — Smart v. Smart, 97
N. Y. 559; Mallory v. Gillett, 25
N. Y. 412.
Pennsylvania. — Taylor v. Preston,
79 Pa. St. 436.
3. United States. — See Snow-
storm Mining Co. v. Johnson, 186
Fed. 745, 108 C. C. A. 615.
Alabama. — Lord v. Calhoun, 162
Ala. 444, 50 So. 402.
California. — See Tevis v. Sav-
age, 130 Cal. 411, 62 Pac. 611.
Illinois.— Lusk v. Throop, 189 111.
127, 59 N. E. 529, affirming 89 111.
App. 509.
Indiana. — Cox v. Peltier, 59 Ind.
355, 65 N. E. 6; Lance v. Pearce, 101
Ind. 595.
Massachusetts. — Walker v. Hill,
119 Mass. 249.
Michigan. — Sutherland v. Coster,
55 Mich. 151.
Minnesota.— Grant v. Wolf, 34
Minn. 32, 24 N. W. 289.
Montana. — Hefferlin v. Karlman,
29 Mont. 139, 74 Pac. 201.
Nebraska. — Williams v. Anten, 62
Neb. 832, 87 N. W. 1061.
Texas. — First National Bank of
Greenville v. Greenville Oil & Cot-
ton Co., 24 Tex. Civ. App. 645, 60 S.
W. 828.
Washington. — Burns v. Bradford
Kennedy Lumber Co., 61 Wash. 276,
112 Pac. 359.
Wisconsin. — West v. O'Hara, 55
Wis. 645, 13 N. W. 894.
§ 399 SUEETYSHIP AND GUARANTY. 416
come liable for the property so sold to another, it is collateral, and
the fact that the creditor relied chiefly upon the promise will make
no difference. If the credit is in part or entirely given to a third
person instead of the promisor, then it is within the statute, if
such is the contract where one agrees to pay the debt of another.*
And where only part of the purchase price of goods has been
paid by the purchaser, an agreement by a third party to pay the
balance due if the goods are transferred to him is not within the
staute of frauds.^
§ 399- Joi^t Liability. — If a party purchases goods to be de-
livered to another, or promises to pay for goods that may be pur-
chased and received by a third party, the promise is clearly an
original contract, an engagement to pay his own debt, and not the
debt of another. iSo if two jointly promise to pay for goods deliv-
ered to a second party, the two are joint original debtors. It is a
joint promise to pay the indebtedness of the two and
not a promise by them to pay the debt of another. Such a prom-
ise is not within the statute. If the credit is given to the person
to whom the goods are delivered, the promise of a third person to
pay for them, though made at the same time, is a promise to pay
4. Alabama.— Pake v. Wilson, 127 A'ew Hampshire. — Walker v. Rich-
Aila. 240, 28 So. 665. ards, 39 N. H. 259.
Indiana. — Indiana Trust Co. v. New Torli. — Cowdin v. Cottgetren,
Finitzer, 160 Ind. 647, 67 N. E. 520; 55 N. Y. 650; Chase v. Day, 17 Johns.
Wills V. Ross, 77 Ind. 1. 114.
Kentucky. — Hillert v. Harned, 143 Eliode Island.— Wood v. Patch, 11
Ky. 3, 135 S. W. 764. R. I. 445.
MassccLusetts.— Bugbee v. Hen- West Virginia.— Hurst Hardv/are
drickson, 130 Mass. 437; Cahill v. Co. v. Goodman, 68 W. Va. 462, 69
Bigelow, 18 Pick. 369. S. E. 898; Radcliffe v. Poundstone,
Michigan.— Butter, Salt & Lum- 23 W. Va. 724.
her Co. v. Vogel, 130 Mich. 33, 89 N. Though contracts, being oral,
W. 560, 8 Det. Leg. N. 1144; Welch were originally void under the stat-
V. Marvin, 36 Mich. 59. ute of frauds they may be subse-
Minnesota. — Cole v. Hutchinson, quently validated by delivery and
34 Minn. 410, 26 N. W. 319. partial payment. Allen v. City of
Mississiitpi.— Bloom v. McGrath, Greenwood, 147 Wis. 626, 133 N. W.
53 Miss. 249. 1094.
5. Berg v. Spitz, 87 App. Div. (N.
Y.) 602. 84 N. Y. Supp. 532.
417 GuABANTY Within the Statute of Feauds. §§ 400, 401
the debt of another, and is within the statute.® When the sale
of goods is upon joint credit, the promise of two, though the
property is purchased for and delivered to but one, the legal effect
as between them and the vendor, is a sale to the two jointly. Such
a promise is an original one as between them and the promisee,
^nd it is not within the statute.^
§ 400. Oral Contract of Insurance. — An oral executory con-
tract of insurance is valid, as it is an original contract, and the stat-
ute of frauds has no application.* Such contract is not made to
answer for the debt, default or miscarriage of another, but is an
original contract between the insurance company, represented gen-
erally by an agent, and the party to be insured.^
§ 401. To Answer for the Torts of Another. — A promise to
answer for the torts of another comes within the statute of frauds,
and therefore must be in writing. Thus, where a party has con-
verted the goods of another, an oral promise to answer for such
tort by a third party is void.^*^ And so where a hirer of a horse
nnlawfully rides it to death, an oral promise by a third party to
pay the damages to the owner is not binding, as it comes within
the statute of frauds, under the words " miscarriage " and " de-
fault.^^
6. Hetfield v. Down, 27 N. J. L. Ins. Co. v. Colt, 20 Wall. (U. S.)
440. 560, 22 L. Ed. 423.
7. Boyce v. Murphy, 91 Ind. 1; 9'. National Fire Ins. Co. v. Rowe,
Stone V. Walker, 13 Gray (Mass.) 20 Ky. Law Rep. 1473, 49 S. W. 422.
€12; Gibbs v. Blanchard, 12 Mich. 10. Turner v. Hubbell, 2 Day
292; Rottman v. Fix, 25 Mo. App. (Conn.) 457.
571. 11. Kirkham v. Marter, 2 Barn.
8. Croft V. Ins. Co., 40 W. Va. 508; & Aid. 613, distinguishing Reed v.
Nash, 1 Wilson, 305.
27
§ 403 SUBETYSHIP AND GUABANTY. 418
CHAPTER XV.
BAIL.
&cnoN 402. Bail Defined.
403. Distinction Between Bail and Mainpernors.
404. Arrest in Civil Action.
405. Obligation of Bail.
406. Rights of Bail.
407. Extent of Liability.
408. Discharge of Principal in Bankruptcy or Insolvency.
409. Payment by Imprisonment of Principal.
410. Different Sets of Sureties.
411. Exoneration of Bail.
412. Exoneration by Performance of Condition.
413. Bail in Criminal Cases.
414. Rights and Liabilities of Bail.
415. Implied Contract of Indemnity to Bail.
416. Express Contract of Indemnity to Bail.
417. Extent of Sureties' Liability.
418. Costs.
419. Joint and Several Liability of Sureties.
420. Effect of Pardon.
421. Delivery of Principal by Bail to Proper Officer.
422. Bail on Appeal.
423. Appearance of Principal.
424. Re-arresting Principal on the Same Charge.
425. Giving a New Bond,
426. Arresting Principal on Different Charge.
427. Sureties are Released by a Change of Their Obligation.
428. Exoneration of Bail by Act of God.
429. Exoneration by Act of Law.
430. Exoneration by Act of Obligee.
431. Exoneration of Sureties in General.
432. Subrogation in Criminal Cases.
433. Forfeiture of Bond.
434. Setting Aside Forfeiture.
435. Voluntary Appearance or Arrest After Forfeiture — Costs.
436. Effect of Remission of Forfeiture.
437. Taking Money in Lieu of Bail.
Sec. 402. Bail Defined. — Bail as a noun means one or more
sureties themselves. It is the delivery or bailment of a person
to his sureties upon their giving a bond, the defendant being the
principal, for his appearance, he being supposed to continue in
419 Bail. §§ 403,404:
their friendly custody, instead of going to prison/ As a verb,
it means to deliver the defendant to sureties who give security
for his appearance in court at the return of the writ.^
The sureties undertake to surrender the defendant when he is
called upon to answer the charge.^ Civil bail is that bail taken in
civil cases.
§ 403. Distinction Between Bail and Mainpernors. — Bail and
mainpernors are both sureties for the appearance of their prin-
cipal. Bail may, and mainpernors may not, surrender their prin-
cipal. Bail are only sureties that the party be answerable for the
specific matter for which they stipulate ; mainpernors are bound
to produce him to answer all charges whatsoever.* Bail will only
be considered in this connection.
§ 404. Arrest in Civil Action. — The right to arrest a party in
a civil action is greatly abridged by the abolition of imprisonment
for debt. Kow arrests can be made only in actions ex delicto, or
for torts, in no wise connected with a contract.^ A party may be
arrested when he perpetrates a fraud in contracting an indebted-
ness, or where he fraudulently conceals his property or the dis-
position of it with a view of defrauding his creditors, and when
he is about to abscond with the purpose of cheating his creditors.
Factors, brokers and agents, and all persons in a fiduciary ca-
pacity may be arrested and held in bail. A party may be arrested
vi et arfnisf for criminal conversation;^ for trover and conver-
sion f for false imprisonment f for deceit ;^^ for malicious prosecu-
tion;" for libel and slander. ^^
1. Bearden v. State, 89 Ala. 21, 7 6. Davis v. Scott, 15 Abb. Pr. (N.
So. 755; Ramsey v. Coolbaugh, 13 Y.) 127.
Iowa 164; Rinhard v. Calemby, 49 7. Dyott v. Dean, 2 Chit. 72.
Ohio St. 257, 31 N. E. 35, 4 Bl. Com. 8. Dugins v. Edwards, 17 How.
297. Pr. (N. Y.) 290; Lopenan v. Hender-
2. 2 Bl. Com. 290. son, 4 Pa. St. 232.
3. Ramsey v. Commonwealth, 83 9. Cox v. Highley, 100 Pa. St. 252.
Ky. 534, 538. 10. Redfield v. Frear, 9 Abb. Pr.,
4. Whipple V. People, 40 111. App. N. S. (N. Y.) 444.
301. 11. Dempsey v. Lipp, 15 How. Pr.
5. Donovan v. Cornell, 3 Day (N. Y.) 11; Orton v. Noonan, 32 Wis.
(Conn.) 339; Bowen v. Burdick, 3 220.
Clark (Pa.) 227. 12. Life Ins. Co. v. Ecclesine, 6
§§ 405, 406 .SUEETYSHIP AND GuAEANTY. 420
§ 405. Obligation of Bail. — The obligation of bail arises from
contract and the law jointly, which extend his privilege beyond the
express condition of the bond. The statute generally subjects the
bail in case of the principal's avoidance and a return of non est
inventus on the execution. This event does not take place on the
omission to surrender the principal in court, nor until after the
exercise of due diligence the execution is legally returned." The
principal is in the theory of the law committed to the custody of
his sureties who are regarded as having him in their control and
able to produce him in accordance with the terms of their obliga-
tion or to surrender him at any time." Either the refraining from
surrendering of the principal or the sureties' promise to pay the
execution on which the principal was arrested, is a consideration
for the agreement by the creditor to continue the matter from
week to week.^^ The bail in civil cases sustains the character of
sureties in the same manner as sureties for an appeal.^® The bail
must either deliver the principal at the time designated or pay an
amount not exceeding the penalty, with costs and interest." If
the bond is not executed in accordance with the statute, yet it may
be a good common law obligation and hold the parties to their
agreement.^
§ 406. Rights of Bail. — The rights of bail are in many re-
spects the same as those of other sureties. Like other sureties
they are discharged by change in the contract without their con-
sent.^' They are liable for their principal only, and not for a
Abb. Pr. N. S. (N. Y.) 23; McCaw- 18. Illinois.— Beveridge v. Chat-
ley V. Smith, 4 Yeates (Pa.) 193. lain, 1 111. App. 594.
13. Hall V. White, 27 Conn. 488. Kentucky.— Hadley v. Swings, 4
14. People V. Hathaway, 102 111. Bibb. 505.
App. 628. Maine.— Holmes v. Chadbourne, 4
15. Thomson v. Way, 172 Mass. Me. 10.
423, 52 N. E. 525. Massachusetts.— Bell v. Pierce,
16. Culliford v. Walser, 158 N. Y. 146 Mass. 58, 15 N. E. 119.
65, 52 N. E. 648. New Jersey.— Robeson v. Thomp-
17. New Haven Bank v. Miles, 5 son, 9 N. J. L. 97.
Conn. 587. New York. — Haberstro v. Belford,
See State v. Western Surety Co., 118 N. Y. 187, 23 N. E. 459.
26 S. D. 171, 128 N. W. 173. PennsylTania. — Koons v. Seward,
Comnare Garibaldi v. Cagnoni, 6 8 Watts 388.
Mod. 266. 1®. Bullen v. Dresser, 116 Mass.
421 Bail. ' §§ 407,408
joint defendant.^" The bail may be subrogated to the creditors'
rights against the principal in civil actions. ^^ Bail is not liable
for their principal's failure.^^ The surety has a right in civil
cases of indemnity against his principal ;^^ but he cannot resort to
any person who was jointly liable with his principal.^ In civil
proceedings the bail is entitled upon an implied contract to in-
demnity for costs incurred incidental to his position.^^
§ 407. Extent of Liability. — The liability of the sureties on a
bail bond is limited by the penalty of the bond with interest from
the time non est inventus is made on the execution.^^ At com-
mon law, whether by bond to the officer in the first instance or
recognizance in the court above, the liability of the sureties is
limited by the penalty named. The bail bond is an agreement
to deliver up the principal when reasonably demanded to satisfy
the judgment which the creditor may recover against the principal,
not exceeding the penalty of the bond." Of course the interest
and costs must be included.^**
§ 408. Discharge of Principal in Bankruptcy or Insolvency. —
The discharge of the principal in insolvency or bankruptcy is a
bar to an action thereon against him for a breach occurring before
the discharge, but has been held not to release the sureties on the
recognizance.'^ But the surety, after paying the liability, may
267; Dean v. Parker, 17 ]\Iass. 591; 27. New Haven Bank v. Miles, 5
Campan v. Seeley, 30 Mich. 57. Conn. 587.
20. Jackson v. Hampton, 10 Ired. 28. Kenan v. Carr, 10 Ala. 867;
(N. C.) L. 579. Richards v. Morse, 36 Me. 240;
21. Parsons v. Briddock, 2 Vern. Walker v. Waterman, 50 Vt. 107.
608. Some decisions hold that the bail
22. Hinton v. Odenheimer, 4 Jones are not liable for interest on the
Eq. (N. C.) 406. judgment recovered against the
S3. Adair v. Campbell, 4 Bibb principal. Gray v. Cook, 3 Houst.
(Ky.) 13. (Del.) 49; Bowyer v. Hewitt, 2
24. Cunningham v. Clarkson, Gratt. (Va.) 193.
Wright (Ohio) 217; Bowman v. 29. Demelman v. Hunt, 168 Mass.
Blodgett, 2 Met. (Mass.) 308. 102, 46 N. E. 436.
25. Fisher v. Tallows, 5 Esp. 171; But compare People v. Hathaway,
Green v. Creswell, 10 Ad. & El. 453. 206 111. 42, 68 N E. 1053, affirming
26. Heustis v. Rivers, 103 Mass. 102 111. App. 628; Bryant v. Kinyon,
398. 127 Mich. 152, 86 N. W. 531, 53 L.
R. A. 801, 8 Det. Leg. N". 801.
§ 409 Suretyship and Guaeanty. 422
recover against the principal, notwithstanding his discharge, when
the debt is not made certain until the principal's discharge.^''
The fact that the creditor has proved his claim in insolvency upon
judgment against the debtor is no bar to an action against a surety
on a recognizance f^ though tlie bail should have the benefit of
any dividends declared. The discharge of the principal releases
the bail without surrender of the principal if obtained before the
bail is fixed.^'^ After the bail has been fixed, and the right to sur-
render the principal is extinguished, his discharge will not release
the sureties.^^
Though in other cases it is decided that a discharge in bank-
ruptcy extinguishes the claim, thus preventing a judgment thereon
against the principal and consequently releases the surety ;'* or
that in such a case an order of court discharging the debtor from
custody releases the surety as by such order the right of the latter
to arrest and surrender him is terminated.^^
§ 409. Payment by Imprisonment of Principal. — In some
cases the principal debtor can be arrested and imprisoned for the
debt if not paid. At law, such arrest is a satisfaction of the judg-
ment so long as the imprisonment continues, and during that
period no action can be taken by the judgment creditor against
one standing as surety for the debt. The imprisomnent suspends
the lien of the judgment upon the principal's property, and the
creditor meanwhile can bring no action on the judgment for its
80. Buel V. Gordon, 6 Johns. (N. Pennsylyania. — Boggs v. Teackls,
Y.) 126. 5 Binn. 332.
81. Harris v. Hayes, 171 Mass. Vermont — Belknap v. Davis, 21
275, 50 N. E. 532. Vt. 409.
82. United States. — Clagett v. England.— Jones v. Ellis, 10 Ad. &
Ward, 5 Cranch C. C. 669. El. 382.
Delaware. — Kennedy v. Adams, 5 88. Munroe v. Towers, 2 Cranch
Harr. 160. C. C. 187; Demelman v. Hunt, 168
Massachusetts. — Champion v. Mass. 102, 46 N. E. 436; Franklin v.
Noyes, 2 Mass. 481. Thurber, 1 Cow. (N. Y.) 427; Wool-
New Hampshire. — Nettleton v. ley v. Cobb, 1 Burr. 244.
Billings. 17 N. H. 453. U. Bryant v. Kinyon, 127 Mich.
New Jersey.— Rowland v. Steven- 152, 86 N. W. 531, 53 L. R. A. 801; 8
son, 6 N. J. L. 149 Det. Leg. N. 263.
New York.— Olcott v. Lilly, 4 35. People v. Hathaway, 206 111.
Johns. 407. 42, 68 N. E. 1053, affirming 102 HI.
App. 628.
423 Bail. §§ 410,411
payment. If the judgment cannot be enforced against the prin-
cipal, it cannot be enforced against the surety.**
§ 410. Different Sets of Sureties. — As between different sets
of sureties, undertaking to secure the same debt, although at dif-
ferent stages of legal proceedings, the primary liability rests upon
the last set. So bail upon discharge from an order of arrest are
sureties within the above rule." The latter sureties are primarily
liable as between themselves and the first sureties ; so the release
of the latter set by the creditor discharges the first set, because it
deprives them of a remedy over to which they otherwise would
liave been entitled.*^
§ 411. Exoneration of Bail. — The bail may be exonerated from
liability in many ways. Enlistment of the principal in the mili-
tary of the government and going out of the State has been held
to release the bail,*^ though many courts hold a contrary doctrine. *°
If anything happens which will entitle the principal to an imme-
diate discharge from custody, it will also liberate the sureties
from liability.^^ And they are released where by order of court
the debtor is discharged, even though such order be erroneous.*^
If judgment is rendered in favor of the principal so it is impos-
sible to surrender him, the bail are released,^* even if the judg-
ment is reversed for error.**
Laches may discharge the bail ;*^ but not if no injury is done
them.** If the creditor enters into a valid agreement with the
principal by which time is given the latter, the bail is released.*^
36. Koenig v. Steckel, 58 N. Y. 475. 43. Lockwood v. Jones, 7 Conn.
37. Toles V. Adee, 84 N. Y. 222. 439.
38. Culliford v. Walser, 158 N. Y. 44. Butler v. Bissel, 1 Root (Conn.)
«5, 52 N. E. 648. 102; Duncan v. Tindall, 20 Ohio St.
39. McFarland v. Wilber, 35 Vt. 567.
342. See People v. Hathaway, 206 111.
40. Gingrich v. People, 34 111. 448; 42, 68 N. E. 1053, affirming 102 111.
Huggins V. People, 39 111. 241; Win- App. 628.
ninger v. State, 23 Ind. 228; Sayward 45. Toles v. Adee, 84 N. Y. 222.
V. Conant, 11 Mass. 146. 46. Vandergazelle v. Rodgers, 57
41. Shields v. Smith, 78 Ind. 425. Mich. 132, 23 N. W. 713.
42. People v. Hathaway, 102 111. 47. Rathborne v. Warren, 10
App. 628, affirmed 206 HI. 42, 68 N. Johns. (N. Y.) 567.
E. 1053.
§ 412 Suretyship and Guaranty. 424
And in some States the refusal to proceed against the principal
at the request of the bail releases them.^^
After the suit is brought an amendment in the cause of action
discharges the sureties ; however, if the amendment does not change
the cause of action, it is otherwise/^ So by adding a new cause of
action discharges the bail,^^ unless the judgment is rendered on the
original cause of action. ^^ So a removal of the cause of action re-
leases the bail ;^^ so if the case is submitted to arbitration.^^ Frau-
dulent acts of the creditor will release the bail.^*
A second arrest has also been held to be a ground for releasing
bail.^^ And where a bond provided that the defendant would
obey " the direction of the court," and there could be no such di-
rection given as that designated it was held that the surety could
not be held liable.^^
Imprisonment of the principal, however, which ends before
judgment against the bail will not discharge them," nor imprison-
ment which does not prevent surrender of the principal.^ But
taking the principal on execution releases them.^*
§ 412. Exoneration by Performance of Condition. — Perform-
ance of the condition of the bond, or some act excusing
the performance, will discharge the bail. This performance may
be by paying the debt or by surrender of the principal.^ And
48. Toles V. Adee, 84 N. Y. 239. 57. Sedberry v. Conner, 77 N. C.
49. Carrington v. Ford, 4 Cranch 319.
C. C. 231; Brown v. Howe, 3 Allen 58. Steelman v. Mattiv, 38 N. J. L.
(Mass.) 528. 247.
50. Hyer v. Smith, 3 Cranch C. C. 59. Warren v. Gilmer, 11 Cush.
437; Willis v. Crooker, 1 PicK. (Mass.) 15; Milner v. Green, 2 Johns.
(Mass.) 204. Cas. (N. Y.) 283.
51. Seeley v. Brown, 14 Pick. Compare Stewart v. McGuin, 1
(Mass.) 177. Cow. (N. Y.) 99.
52. Campau v. Soeley, 30 Mich. 57. 60. Ruggles v. Covey, 3 Conn. 419;
53. Bean V. Parker, 17 Mass. 591. Chields v. Smith, 78 Ind. 425; Ap-
54. Stevens v. Bigelow, 12 Mass. pleby v. Robinson, 44 Barb. (N. Y.)
437; Bishop v. Earl, 17 Wend. (N. 316; Chase v. Holton, 11 Vt. 347.
Y.) 316; Mott v. Hazen, 27 Vt. 208. Sureties who ghe special bail
55. Loewenthal v. Wagner, 69 N. may, in Michigan, surrender their
J. L. 129, 54 Atl. 252. principal within eight days after
56. Bristol v. Graff, 79 App. Dlv. suit is begun on the bond, and sure-
(N. Y.) 426, 80 N. Y. Supp. 39. ties upon a bond for the appear-
425
Bail.
4ia
where the undertaking is for the appearance of the principal in
court on a certain day and the surety produces him in court on
the day specified he is held to be released.®^ When the perform-
ance becomes impossible by the act of God, or of law, or of the
obligee, the bail is released,*^^ and also when the performance be-
comes useless.^*
The death of the principal at any age of the suit before the re-
turn of the writ against the principal, entitles the bail to a dis-
charge.^ After the return of the writ and the bail is fixed, death
does not discharge them.^^ But death of the principal within any
time fixed by the statute will discharge the bail.^^
§ 413. Bail in Criminal Cases. — By a recognizance of bail in
a criminal action the principal is, in theory of the law, committed
to the custody of the sureties as jailers of his own choosing, not
that he is subject or can be subjected by them to constant im-
ance of a defendant arrested by
capias may surrender him in tlie
same manner and with like effect
as in case of special bail, and be
exonerated after default in the
terms of the bond and within five
days after the commencement of
an action upon the instrument.
Schwarzschild & Sulzberger Co. v.
Cryan, 167 Mich. 377, 132 N. W. 1065.
The words "to abide the final
order" operate to limit, not to ex-
tend the liability of the obligors. So
where a prisoner was sentenced to
pay a fine and to serve a term on
the chain gang and he sought cer-
tiorari, giving a bond to " person-
ally appear to abide the final order,
decree, judgment or sentence " in
the case and after dismissal of the
certiorari he surrendered himself
and served out the term, but did
not pay the fine it was decided that
the condition of the bond was com-
plied with by his surrender, and
that an action could not be main-
tained on the bond for the fine. C'ty
of Atlanta v. Turner, 8 Ga. App. 213,
68 S. E. 847.
61. Straw v. Kromer, 114 Wis. 91,.
89 N. W. 821.
See § 423 herein.
62. Taylor v. Taintor, 16 Wall. (U.
S.) 366, 21 L. Ed. 287; Nettleton v.
Billings, 17 N. H. 453; Palmer v.
Merriwether, 7 J. J. Marsh (Ky.)
506; Steelman v. Mattix, 38 N. J. L.
247.
63. Bears v. Haughton, 1 McLean
(U. S. C. C.) 226; Shields v. Smith,
78 Ind. 425; White v. Guest, 6 Blackf.
(Ind.) 228; Boggs v. Teackle, 5 Binn.
(Pa.) 332; Todd v." Maxfield, 3 Bar.
& Cr. 222.
64. Griffin v. Moore, 2 Ga. 331.
65. Davidson v. Taylor, 12 Wheat.
(U. S.) 604, 6 L. Ed. 743; Hamilton
V. Ehinblee, 1 N. H. 172; Olcott v.
Lilly, 4 Johns. (N. Y.) 407; Rawl-
ings v. Gunstern, 6 Term. R. 284.
66. Walsh v. Schulz, 13 Daly (N,
Y. 132; Mount Pleasant Bank v. Pol-
lock, 1 Ohio 35.
^ 413 Suretyship a^d Guaeanty. 426
prisonment, but tbat he is so far supposed to be in their power that
they may at any time arrest him upuu tne recognizance and surren-
der mm to the court. To the extent necessary to accomplish this
they may restrain him of his liberty."^
Although the rights and liability of sureties on a recognizance
are in many respects ditferent from those of sureties on ordinary
or commercial bonds, yet their positions are similar in respect lo
the limitation of their liability to the precise terms of their con-
tract and the effect upon such liability of any change in these
terms without their consent.*^
The relation of principal and surety between the principal and
his bail exists only in a qualified sense. And it is against public
policy to aid the bail to relieve themselves from punishment meted
out to them for their neglect in failing to surrender their prin-
cipal to justice.^^ They bind themselves that their principal shall
appear and answer the charge, and if he fails to do so, the con-
dition is broken and they become liable to the penalty.
Their liability is limited to the precise terms of the bond, and
if any change is made in the contract without their consent they
will be discharged, though it inures to their benefit.^*^ And if the
bail is illegally taken, the sureties are not bound.^^
67. Reese v. United States, 9 "Wall, terms. Malheur County v. Carter,
(U. S.) 13, 19 L. Ed. 541; State v. 52 Oreg, 616, 98 Pac. 489.
Sandy, 138 Iowa 580, 116 N. W. 599; 71. State v. Vion, 12 La. Ann. 688;
State V. Sureties, 4 Wyo. 347. Governor v. Fay, 8 La. Ann. 490.
68. State v. Sureties of Kroline, 4 The purpose of requiring bail
Wyo. 347, 34 Pac. 3. bonds in criminal cases is not to
69. United States v. Ryder, 110 U. enrich the treasury, but to secure
S. 729, 4 Sup. Ct. 196, 28 L. Ed. 308. the administration of justice. The
70. Reese v. United States, 9 Wall, bond is allowed to be given for the
(U. S.) 13, 19 L. Ed. 541. convenience of a person not yet
A bail bond is a statutory under- proved to be guilty and to protect
taking to pay money under certain the state against the expense of
conditions, and, to be enforceable, it keeping such persons in jail. Fort-
must be taken in substantial com- ney v. Commonwealth, 140 Ky. 545,
pliance with the terms of the stat- 131 S. W. 383.
ute authorizing it, and if not so The purpose is to secure the at-
taken it can not be enforced as a tendance of defendant upon court,
common law undertaking and the rather than to profit by its breach,
sureties are entitled to stand on State v. Sandy, 138 Iowa 580, 116
their contract according to its X. W. 599.
427 Bail. § 414
The object of bail in civil cases is either directly or indirectly
to secure the payment of a debt or other civil duty ; while the
object of bail m criminal cases is to secure the appearance of the
principal before the court for the purpose of public justice.
Payment by the bail in a civil case discharges the obligation of
the principal to his creditor, and is only required to the extent
of that obligation, whatever the penalty of the bond or recogniz-
ance, whilst payment by the bail of their recognizance in crim-
inal cases, though it discharges the bail, does not discharge the
obligation of the principal to appear in court ; that obligation still
remains, and the principal may, at any time, be retaken and
brought into court.
§ 414. Rights and Liability of Bail. — The bail become the
bailers of the principal, though they cannot actually confine him.
They may terminate their obligation by arresting and surrender-
ing him into the hands of the court,^^ without process,''^ by their
agent by Avritten authority when not in their presence,^* and pur-
sue him into another State and arrest him,^" within the jurisdic-
tion of the United States.^^ They may arrest him on Sunday ,^^
and break into his house if necessary to make the arrest,^^ after
making demand to enter and refusal by the principal/® and may
require the assistance of an officer;^" and if the State does not
aid such sureties upon proper demand to arrest the principal,
they will be released. ^^
72. Taylor v. Taintor, 16 Wall. (U. 75. Taylor v. Taintor, 16 Wall. (U.
S.) 366, 371, 21 L. Ed. 287; People v. S.) 366, 21 L. Ed. 287; State v. Lin-
Paulsen, 146 111. App. 534; Norfolk genfelter, 109 N. C. 775, 14 S. E. 75.
V. People, 43 111. 9; Nicolls v. In- 76. Reese v. United States, 9 Wall,
gersoll, 7 Johns. (N. Y.) 1!5; (U. S.) 13, 19 L. Ed. 541.
Hughes V. State, 28 Tex. App. 499, 77. Taylor v. Taintor, 16 Wall. (U.
13 S. W. 777. S.) 366, 21 L. Ed. 287.
73. Taylor v. Taintor, 16 Wall. (U. 78. Taylor v. Taintor, 16 Wall. (U.
S.) 366, 371, 21 L. Ed. 287; Gray v. S.) 366, 21 L. Ed. 287; Read v. Case,
Strickland, 163 Ala. 344, 50 So. 152; 4 Conn. 166.
State V. Lingerfelt, 109 N. C. 775, 79. Read v. Case, 4 Conn. 166.
14 S. E. 75. 80. People v. Paulsen, 146 111. App.
74. Taylor v. Taintor, 16 Wall. (U. 534; State v. Cunningham, 10 La.
S.) 366, 21 L. Ed. 287; State v. La- Ann. 393.
zarre, 12 La. Ann. 166. 81. Commonwealth y. Querly, 80
Ky. 208.
§ 415 Suretyship and Guaeanty. 428
If the bail voluntarily permit their principal to leave the State
they are liable for his appearance,*'^ even if the principal is a
minor and is removed by his mother;*^ nor will insanity of the
principal release them from their obligation to produce him.'**
JS^othing will release them but the death of the principal or act
of God.
However, if the State has consented to the principal's placing
himself beyond the reach of the sureties, they will be exonerated
for not producing him.^^
§ 415. Implied Contract of Indemnity to Bail. — Without an
express contract of indemnity to bail in a criminal action for the
appearance of his principal, the bail cannot maintain an action
against the principal to recover any sum he may have been obliged
to pay by reason of forfeiture of the principal ; and so he is not
entitled to be subrogated to the right of the State and to enjoy the
benefits of the State's priority, as such subrogation is against pub-
lic policy.^®
But an implied promise to indemnify a bail in criminal cases
may be sustained in regard to the costs which the bail was obliged
to pay on default of the principal ; but no such promise will be
implied for the non-appearance of the principal, because it would
be against public policy. ^^
82. United States. — Taylor v. bone v. Warren, 10 Johns. (N. Y.)
Taintor, 16 Wall. 366, 21 L. Ed. 287. 587; Niblo v. Clark, 3 Wend. (N,
loAva.— State v. Scott, 20 Iowa 63. Y.) 24, 6 Wend. 236; Bowmaker v.
Kentncky. — Yarborough v. Com- Moore, 7 Price 223, 3 Price 214.
monwealth, 89 Ky. 151, 12 S. W. 143. 86. United States v. Ryder, 110 U,
Massachusetts. — Hartington v. S. 729, 4 Sup. Ct. 196, 28 L. Ed. 308;
Dennle, 13 Mass. 92. Cripps v. Hartnoll, 4 B. & S. 414.
Missouri. — State v. Horn, 70 Mo. Compare Reynolds v. Harral, 2
466. Strob. fS. C.) 87; Simpson v. Rob-
Nebraska.— King V. State, 18 Neb. erts, 35 Ga. 180.
375. 25 N. W. 519. 87. Jones v. Orchard, 16 C. B. 614.
Tennessee. — Devine v. State, 5 Expense incurred in preventing a
Sneed 623. breach of the bond and in enforc-
83. Starr v. Commonwealth, 7 ing the presence of the principal
Dana (Ky.) 243. are recoverable, as where the
84. Adler v. State, 35 Ark. 517. surety was forced, in order to pro-
8.5. Husbands v. Commonwealth, tect himself from a forfeiture, to
143 Ky. 290, 136 S. W. 632; Rath- procure the issuance of a requisl-
429 Bail. § 4 16
And where there is a provision in the undertaking that the
principal will put in an appearance without trouble or expense
to the surety at the required time, if the latter is put to any ex-
pense to procure the presence of the principal in order to prevent
a forfeiture he may recover the same from the principal on the
strength of the implied promise in the bond on the part of the
latter to reimburse him.^*
It has been held that bail will not be taken who have secured
indemnity from the principal, as the sureties would be relieved
from any motive to exert themselves in securing the appearance
of the accused/^ But this doctrine does not apply to contribution
among sureties; so when one of the sureties is compelled to pay
the penalty he can have contribution against his co-surety.®"
§ 416. Express Contract of Indemnity to Bail. — The law will
not enforce, it seems, an express agreement to indemnify bail by
the principal, as it would be against public policy.®^ But indem-
nity for costs and expense incurred by the surety is valid, and not
against public policy.®^ But indemnity for the amount the bail
must pay as to the penalty cannot be collected. And so where the
principal has deposited money as indemnity and is exonerated,
he cannot recover it, as the contract was illegal and the courts will
not interfere,^^ However, a third party may indemnify the bail,
which they may recover, as it is not an illegal contract.®^ And
such contract of indemnity by a third party need not be in writ-
ing, as the bail is not given for the purpose of answering for the
debt of another in a civil action, so the statute cannot apply.®^
In some States indemnity to bail in ciminal cases is allowed.
tion and to expend money to com- 92. Harp v. Osgood, 2 Hill (N. Y.)
pel the presence of the principal. 216; Jones v. Orchard, 16 C. B. 614.
Fleming v. Shockley, 8 Ga. App. 229, 93. Dunkin v. Hodge, 46 Ala. 523;
68 S. E. 1013. Herman v. Jeuchner, 15 Q. B. Div.
88. Fleming v. Shockley, 8 Ga. 561.
App. 229, 68 S. E. 1013. 94. Stevens v. Hay, 61 III. 399;
89. United States v. Simmons, 47 People v. Ingersoll, 14 Abb. Pr. N. S.
Fed. 375. (N. Y.) 23; Harp v. Osgood, 2 Hill
90. Belond v. Guy, 20 Wash. 160, 54 (N. Y.) 216.
Pac. 995. 95. Anderson v. Spencer, 27 Ind.
91. United States v. Simmons, 47 315; Cripps v. Hartnoll, 4 B. & S.
Fed. 375. 414.
§§ 417, 418 (SUEETYSHIP AND GUARANTY. 4o(>
Hence, a bond and mortgage given to indemnify the bail by the
principal does not render them void.^ And so it is held that a
bail may maintain an action against their principal for money
paid to indemnify them for what they have been obliged to pay
on their recognizance." There can be no valid distinction, in prin-
ciple, between a contract made by the accused and one made by
somebody else for his benefit. But such distinction seems to exist
in the text-books, resulting in contracts on the one hand being
held valid and on the other hand being disproved. In view of the
fact that contracts for the indemnity of sureties upon bail bond
in criminal cases have been frequently enforced in the courts, it
is strong evidence that they have been presumed, by the bar and
bench, to be legal. ^^
§ 417. Extent of Sureties' Liability. — The sureties are only
liable for the amount mentioned in the obligatory part of the bond,
though a different and larger amount be recited in the other part
of the instrument. Thus, where the obligatory part is in the sum
of $2,000 and the condition recites that the accused is held to
bail in the sum of $2,500, the only effect is that the judgment
which has been rendered for $2,500 be reduced to $2,000.^* So
where the principal enters into a recognizance of $100, and the
sureties are bound in the sum of $200, they can be held only for
$100, the same as their principal.^
^ 418. Costs. — The costs follow the judgment by operation of
law, and constitute a distinct liability which is not discharged
by remission of the forfeiture.^ So when a party is pardoned for
a crime for which he has been convicted, this does not discharge
costs, but only the penalty.^
96. Simpson v. Robert, 35 Ga. 180; 89. Hodges v. State, 20 Tex. 493.
Moloney v. Nelson, 158 N. Y. 351, 53 1. People v. Morrison, 75 Mich. 30,
N. E. 31. 42 N. W. 531.
97. Reynolds v. Harral, 2 Strob. 2. State v. Beebee, 87 Iowa 636, 54
(S. C.) 87. N. W. 479; Ck)mmonwealth v. Ram-
See, also, People v. Skidmore, 17 sey, 2 Duv. (Ky.) 385; Common-
Cal. 260. wealth v. Schick, 61 Pa. St. 495;
98. Maloney v. Nelson, 12 App. Chambless v. State, 20 Tex. 197.
Div. (N. Y.) 545, 42 N. Y. Supp. 418, 3. Ex parte McDonald, 2 Whart.
158 N. Y. 351, 53 N. E. 31. (Pa.) 440; Holliday v. People, 5 Gil.
ail.) 214.
431 Bail. §§ 419,420
§ 419. Joint and Several Liabilities of Sureties. — In many of
the States the liablity of the sureties is fixed by statute as to the
nature of their liability, whether joint or several. The statute
generally provides that the liability shall be joint and several,
which must control the terms of the bond.* And there is generally
a provision authorizing a taking of forfeiture against the sureties,
or one or more of them, with or without their principal. In the
absence of a statute controlling, the liability of the sureties is fixed
by the terms of the bond, and judgment must be taken accord-
ingly.'
§ 420. Effect of Pardon. — A full and complete pardon of the
accused at a time subsequent to a forfeiture of a bail bond does
not release the sureties from liability on the bond.* Because the
pardon does not reach a matter wholly independent of the crim-
inal offense charged, or of the punishment therefor after forfei-
ture.^ The pardon relieves the accused from the penalty and
nothing more, and cannot be applied so as to relieve the sureties
after forfeiture.^
And where a fine and imprisonment are imposed, a suspension
of the imprisonment by the governor does not discharge the fine,
and the sureties are still liable.^
See, also. United States v. Lancas- Maryland. — Parrish t. State, 14
ter, 4 Wash. C. C. 64; Rowe v. State, Md. 238.
2 Bay (S. C.) 565. Missouri.— State v. Davidson, 20
Compare Cade v. Gordon, 88 Ga. Mo. 212.
461, 14 S. E. 706. Tennessee.— Brewer v. State, 6
4. Kilgrow V. State, 49 Ala. 337; Lea 198, overruling Scott r. State, 1
Swerdofeger v. Gordon, 88 Ga. 461; Head 433.
State v. Lyons, 7 La. Ann. 540; Texas.— Ishmael v. State, 41 Tex.
Avant v. State, 33 Tex. Cr. 312, 26 244; Fulton v. State, 14 Tex. App. 32.
S. W. 411 6. Dale v. Commonwealth, 101 Ky.
5. Alabama,— Ellison v. State, 8 612, 42 S. W. 93.
Ala. 273. 7. Weatherwax v. State, 17 Kan.
Idaho. — People v. Bugbee, 1 Idaho 427; State v. Davidson, 20 Mo. 212.
88. 8. Mount v. Commonwealth, 2
Illinois. — People v. McFarland, 9 Duv. (Ky.) 95.
111. App. 275. 9. Illinois.— Holliday v. People, 10
Indiana. — Hildreth v. State, 5 111. 214.
Blackf. 80. Indiana. — State v. Farley, 8
Kentncky.— Madison v. State, 2 A. Blackf. 229.
K. Marsh. 131. Iowa,— State v. Meier, 96 Iowa
421
SUEETYSHIP AND GUAKANTY.
432
§ 421. Delivery of Principal by Bail to Proper Officer.— The
surrender of the principal by the bail to the proper officer re-
leases them from further liability/'' and they have the right to
pursue him into any State within the United States and arrest
him for the purpose of surrender. And the fact that the recog-
nizance has been forfeited, and a conditional judgment against
the sureties has been entered, will not deprive them of their rights
to arrest and surrender him/^
The surrender should generally be made to the sheriff, or by
a certified copy of the bail bond, with instructions to the officer to
arrest the principal,^^ And a surrender by a certified copy of
the bond is sufficient, though the accused is in prison for another
<}rime." A voluntary surrender of the principal is sufficient to
375, 65 N. W. 316; Ester v. Lacey,
35 Iowa 419.
'^Missouri— State v. O'Blemis, 21
Mo. 272.
Pennsjivania. — Ex parte McDon-
ald, 2 Whart. 440.
Compare Commonwealth v. Har-
gis, 137 Ky. 1, 120 S. W. 294, holding
that under the Ky. Const. § 77, de-
claring that the Governor shall have
power to remit fines and forfei-
tures, commute sentences, great re-
prieves and pardons, except in case
of impeachment a full pardon for
contempt, for which a judgment of
fine and imprisonment had been en-
forced, relieved the sureties on the
offender's bail bond from liability
on their covenant to surrender him
in execution of the judgment of im-
prisonment or to pay two dollars
to the commonwealth for each day
of the imprisonment adjudged.
10. United States. — Taylor v.
Taintor, 16 Wall. 366, 21 L. Ed. 287.
Alabama. — Miller v. State, 158
Ala. 73, 48 So. 360, 20 L. R. /. (N.
S.) 861; Bearden*v. State, 89 Ala.
21, 7 So. 755.
California. — People v. McReynolds,
102 Cal. 308, 36 Pac. 590.
Georgia. — Wiggins v. Tyson, 112
Ga. 744, 38 S. E. 86.
Illinois. — Norfolk v. People, 43
111. 9.
Iowa. — State v. Anderson, 119
Iowa 711, 94 N. W. 208; State v.
Zimmerman, 112 Iowa 5, 83 N. W.
720.
MlssisslpiH. — Kellogg v. State, 43
Miss. 57.
Missouri. — State v. Murmann, 124
Mo. 502. 28 S. W. 2.
Ji'ortli Carolina. — State v. Linger-
felt, 109 N. C. 775, 14 S. E. 75.
Texas. — State v. Rosseau, 39 Tex.
614.
See Talley v. State, 44 Tex. Cr.
App. 162, 69 S. W. 514.
The court must accept the sur-
render of the principal in order to
discharge the sureties. Du Law-
rence V. State, 31 Ohio C. C. 418.
11. Bearden v. State, 89 Ala. 21, 7
So. 775; State v. Lingerfelt, 109 N.
C. 775, 14 S. E. 75.
12. Slemberg v. State, 42 Ark. 127.
1.3. State V. Trahan, 31 La. Ann.
715.
433 , Bail. §§ 422,423
discharge the sureties, if his knowledge of the accused and the
surrounding circumstances is of that kind which identifies the
party as the one under bail." And so if the principal appears at
the commencement of the trial, it is a constructive surrender of
him to the officer, and the sureties' liability ceases/^ But the sur-
render must be actual, and not constructive/*^
Where the statute prescribes the manner in which amend is to
be made, there must be a compliance therewith in order to dis-
charge the surety/^ A statute giving the right to sureties on bail
bonds to surrender their principal will not be construed as giving
the right of surrender to a surety on a bond given on appeal. ^^
§ 422. Bail on Appeal. — An appeal bond, where the sureties
bind themselves to pay the fine if the judgment is affirmed, can-
not be satisfied by the surrender of the principal when the judg-
ment is affirmed. Nothing but payment will release the sureties'
liability.^^ But where there is no such obligation assumed by the
sureties, the sureties' liability will cease with the conviction of
the principal.^''
If by statute an appeal bond acts as a supersedeas of the judg-
ment of conviction it is decided that the bail bond is not revived
by a dismissal of the appeal.^^
§ 423. Appearance of Principal. — The principal must appear
at the date stipulated. He cannot be required to appear at a
time contrary to that specified. So when a day has been fixed for
his appearance, but is changed by act of the legislature, and he
14. Babb v. Oakley, 5 Cal. 94; render their principal, the provl-
Walter v. People, 28 111. App. 645. sions in regard thereto should be
low Willis V. Commonwealth, 85 complied with. Cameron v. Burger
Ky. 68, 2 S. W. 654; Askins v. Com- (Oreg. 1912), 120 Pac. 10.
monwealth, 1 Duv. (Ky.) 275, over- 18. Talley v. State, 44 Tex. Cr.
ruling Commonwealth v. Coleman, 2 App. 162, 69 S. W. 314.
Met. (Ky.) 382. 19. State v. Stommel, 89 Iowa 67,
16. State V. McMichael, 50 La. 56 N. W. 263; State v. Meier, 96
Ann. 428, 23 So. 992. Iowa 375, 65 N. W. 316.
17. State V. Miller, 109 La. 27, 33 20. Mitchell v. Commonwealth, 12
So. 57. Bush (Ky.) 247; State v. Schexnei-
Where the statnte prescribes the der, 45 La. Ann. 1445, 14 So. 250.
manner in which bail may sur- 21. Bailey v. State, 71 Ark. 498,
76 S. W. 551.
28
§ 423
Suretyship and Guaranty.
434
appears according to his obligation, this is a sufficient compliance^
and his sureties are discharged.^^ Appearance by counsel may by
statute also be sutHcient to prevent a forfeiture.^^ But a clerical
mistake as to the date of the month named in the recognizance is
immaterial and will not discharge him, as he must take notice of the
day on which the term of court commences.^* If, however, the
time is specified as the next term of court, and the time is changed
by the legislature, this does not affect his liability, and he must
appear at the next term of court.^^ But the principal is not re-
quired to appear at a special term which inten^enes before the
regular term."®
The bond is generally so made out as to require the principal
to appear from day to day, which he must do, in order not to
forfeit his bond ;^ and also from term to term.^^ If the accused
is, by the terms of the bond, to appear when notified, unless he i&
notified there can be no forfeiture.'^ Where the only condition is
that the accused shall appear on a day certain, and nothing fur-
22. State v. Stephens, 2 Swan
(Tenn.) 308.
2S. People v. Miller, 63 App. Div.
(N. Y.) 11, 71 N. Y. Supp. 212.
24. Mooney v. People, 81 111. 134.
25. Walker v. State, 6 Ala. 350.
Where a bond is for appearance
at next term and from term to term
thereafter, where one is bound over
to await action by the grand jury,
the surety is not discharged by a
failure to return an indictment at
the next term. State v. Fuller, 128
Ala. 45, 30 So. 506.
A statute continuing the bond in
force, in case of a failure of the
term, to the next regular term is
corstitutional. Bartling v. State,
67 Neb. 637, 93 N. W. 1047, 97 N. W.
443.
26. State v. Aubrey, 43 La. Ann.
188, 8 So. 440; State v. Houston, 74
N. C. 174.
27. Illinois.— Stokes v. People, 62
111. 489.
Indiana. — Rubush v. State, 112
Ind. 107, 13 N. E. 877.
Michigan. — People v. Gordon, 39
Mich. 259.
New York. — People v. Milham, 100
N. Y. 273. 3 N. E. 196.
Virginia. — Allen v. Common-
wealth, 90 Va. 356.
28. Alabama. — Williams v. State,
55 Ala. 71.
Colorado. — Chase v. People, 2
Colo. 328.
Illinois. — Gallagher v. People, 91
III. 590.
Indiana. — State v. Whitson, 8
Blackf. 178.
Iowa. — State v. Baldwin, 78 Iowa
737.
Kansas. — Glasgow v. State, 41
Kan. 333, 21 Pac. 253.
29. Louisiana Society for Preven-
tion of Cruelty to Children ▼.
Moody, 111 La. 199, 35 So. 516.
435 Bail. § 423
ther is required, an appearance on that day fulfills that condi-
tion, and if the court adjourns without further orders, the prin-
cipal is discharged, and, of course, his bail also.^"
So where the undertaking is to secure the appearance of the
principal and he appears as required, is convicted, and taken into
custody by the sheriff, the surety is released and can not be held
liable for his subsequent disappearance where the court grants
him a temporary release from custody so as to enable him to ob-
tain money for the payment of his fine.^^ Failure to appear as
provided in the bond can only be excused so as to release the surety
where the failure was due to act of God, of the law or of the ob-
ligee.^^ If by the condition of the undertaking the principal is
not only to appear at a certain time, but also to be amenable to
the orders of the court at all times, the sureties are not released by
his appearance at the designated time where an order was made
by the court on the following day that he deliver himself into cus-
tody, which he failed to do.^ If a change of venue is legally
80. Illinois. — Ogden v. People, 62 to be a continuing obligation and
111. 63. the sureties not to be discharged
Missonri. — State v. Mackey, 55 Mo. where the principal appears on the
51. day specified and the court ad-
IVew York.— See People v. Mc- journs to a later date. St. Louis v.
Kenna, 62 App. Div. 327, 70 N. Y. Henning, 235, Mo. 44, 138 S. W. 5;
Supp. 1057. see, also. State v. Williams, 84 S.
Ohio. — Swank v. State, 3 Ohio St. c. 21, 65 S. E. 982.
^29. Adjourning for purpose of pass-
Wisconsin.— State V. Becker, 80 jng sentence and judgment. .Where
Wis. 313, 50 N. W. 178. a. bond given upon an indictment is
Compare Fossett v. State, 43 Tex. conditioned for the appearance of
Cr. App. 117, 67 S. W. 322. the defendant to answer the charge,
31. State V. Zimmerman, 112 Iowa to be at all times amenable to the
5, 83 N. W. 720. orders of the court, and that if con-
32. Ringeman v. State, 136 Ala. victed he will appear for judgment
131, 34 So. 351. and the court upon the rendition
33. Lawrence v. Commonwealth, of a verdict, directed that the bond
25 Ky. Law Rep. 455, 76 S. W. 10. be continued until a certain day,
Not to depart " without leave." to which time the court was there-
Where a bond is conditioned for ?p- upon adjourned for the purpose of
pearance on a day eertain and that passing sentence and judgment
the principal " shall not depart upon the defendant, the sureties
thence without leave first being ob- were held liable where the defend-
tained " from the court it is held ant failed to appear for sentence.
§ 424 .Suretyship and Guaranty. 436
granted, the liability of the sureties follows the siiit.^ But when
the change of venue is illegally granted it is a nullity, and the
sureties are not liable for the non-appearance of the principal to
the appellate court.^^ A mere granting an order of change of
venue with consent of the parties, without further proceedings to
complete the change, and which is set aside at the same term of
court, does not release the sureties, although a change of venue
perfected would release them under the statute.^®
^Yhere the statute provides a summary remedy for the enforce-
ment of statutory bonds and by statute a bail bond must state the
term of court at which appearance of the principal is required
a bond which does not so state is not a statutory bond so as to permit
of such enforcement."
§ 424. Re-arresting Principal on the Same Charge. — The
sureties on a bail bond are released by the re-arrest of the accused
on the same charge. ^^ By such second arrest the principal is placed
in the control of the officer of the law precisely as he would be if
the bail should surrender him; therefore, they are discharged
from further liability."^ But if the accused does not appear, and
is not delivered by his sureties, then the court may arrest him,
People V. MacGregor, 147 App. DIv. 36. Gray v. Commonwealth, 100
(N. Y.) 488, 131 N. Y. Supp. 783. Ky. 645, 38 S. W. 1092.
34. "Williams v. McDanlel, 77 Ga. 37. Tolle&on v. State, 139 Ala. 159,
4; State v. Brown, 16 Iowa 314; 35 So. 997.
Commonwealth v. Austin, 11 Gray 38. Arkansas. — State v. Jones, 29
(Mass.) 330. Ark. 127.
Where the sureties do not under- Georgia. — Smith v. Kitchens, 51
take that their principal shall ap- Ga. 158.
pear elsewhere than the place loTra. — State v. Osier, 48 Iowa 343.
designated and there is no provi- Kentucky.— Medlin v. Common-
sion in the bond that he shall obey wealth, 11 Bush. 605; Common-
the further orders of the court the wealth v. Bronson, 14 B. Mon. 361.
sureties are not liable where ha de- ]Vew York.— People v. Stager, 10
faults af*er obtaining change of Wend. 431.
venue to another county. Territory 39. State v. Holmes, 23 Iowa 458;
V. Woodward, 15 N. M. 161, 103 Pac. Commonwealth v. Coleman, 2 Met.
985. (Ky.) 322; People v. Stager, 10
So, Adams v. People, 12 111. App. Wend. (N. Y.) 431
380.
437 Bail. §§ 425,426
and if he escapes, after forfeiture of the bond, the sureties will
be liable/"
When the sureties surrender the principal to the court, then
their liability ceases, and they are not responsible for the acts of
the officer of the court. Their legal right to control him is gone,
and they cannot be held to produce him."
It is held by some courts that an illegal arrest of the principal
releases the sureties because they are compelled to submit to the
proceedings of the court and are deprived of the custody of the
principal.^' But other courts hold that an illegal arrest does not
release the sureties, because such second arrest is a nullity.'*'
The arrest of the principal on the same charge by the Federal
authorities operates to discharge the sureties on the State bond.**
§ 425. Giving a New Bond. — Where the principal appears in
compliance with his recognizance and gives a new bail bond, his
former sureties are no longer liable.*^ And so the sureties before
forfeiture are released from liability by a second arrest and a
.uew bond given on the same indictment.^® And they cannot there-
after be held, although the second bond is invalid and is set aside.^^
But where the principal escapes after forfeiture and is arrested
and gives a new bond, this does not release the former securities.^^
§ 426. Arresting Principal on Different Charge. — When the
principal is arrested on a different charge and held in custody,
which makes it impossible for the first sureties to produce him,
this operates to discharge them.'*® But the mere temporary deten-
40. Commonwealth v. Brand, 1 Commonwealth v. Oveerby, 80 Ky.
Bush (Ky.) 59. 208; Commonwealth v. Webster, 1
41. People V. McReynolds, 102 Bush (Ky.) 616.
C 1. 308, 36 Pac. 590; Wilson v. Peo- 4o. Schneider v. Commonwealth,
pie, 10 111. App. 357; Wheeler v. 3 Met. (Ky.) 409.
State, 39 Kan. 163, 17 Pac. 856; Peo- 46. Peacock v. State, 44 Tex. 11.
pie V. Stager, 10 Wend. (N. Y.) 431. 47. Peacock v. State, 44 Tex. 11.
42. Commonwealth v. Bronson, 14 48. State v. Martin, 50 La. Ann.
Mon. (Ky.) 361; Medlin v. Common- 1157, 24 So. 590; Reed v. Police
wealth, 11 Bush (Ky.) 605. Court of Lowell, 172 Mass. 427, 53
43. Ingram v. state, 27 Ala. 17; N. E. 633.
Chapell V. State, 30 Tex. 613. 49. Michigan.— People v. Robb, 98
44. Belding v. State, 25 Ark. 315; Mich. 397, 57 N. W. 257.
§ 427 .SUEETYSHIP AND GUARANTY. 438
tion^ as taking time to give a bond on another charge will not
release them.^'^ Thus, if he be arrested on charge and fined, stop-
ping to pay the penalty is not a sufficient detention to release the
bail.°^ The sureties are not discharged if he escapes from the sec-
ond arrest, for he is then not detained by the law, but can be
arrested and delivered to the court. ^^
The liability of the sureties is not affected by the arrest and
detention of their principal in another county, because they can
secure him on a habeas corpus and deliver him to the proper of-
ficer,^ unless he has been removed from the county by order of
the provost marshal ; this action of a Federal officer releases them.^*
And the same result will follow if arrested by miitary authority
and detained as a soldier.^^ And so where the principal is ar-
rested, tried, convicted and imprisoned, rendering it impossible
to produce him, the sureties are released.^'^
§ 427. Sureties are Released by a Change of Their Obliga-
tions. — The rights and liabilities of bail are in many respects dif-
ferent from those of sureties on ordinary civil bonds, yet their
position is similar in respect to the limitation of their liability
to the precise terms of the contract and the effect upon such lia-
bility by any change in these terms without their consent. So
if the State makes any contract with the- principal, either bene-
ficial or detrimental to the sureties, without their consent, it oper-
ates to release them. Thus, where the State allows him to be
Xew York. — People v. Bartlett, 3 Arkansas. — Havis y. State, 62 Ark.
Hill (N. Y.) 570. 500, 37 S. W. 957.
Xorth Dakota.— State v. Funk, 20 Illinois.— Mix v. People, 26 111. 32;
N. D. 145, 127 N. W. 722. Brown y. People, 26 111. 28.
Vermont.— State v. Spear, 54 Vt. Iowa.— State v. Merrihew, 47 Iowa
503. 112.
Virginia.- Caldwell v. Common- Texas.— Wheeler v. State, 38 Tex.
wealth, 14 Gratt. (Va.) 698. 173.
50. West V. Colquitt, 71 Ga. 559; But, see State v. Funk, 20 N. D.
Hartley v. Colquitt, 72 Ga. 351. 145, 127 N. W. 722.
51. People y. Robb, 98 Mich. 397, 54, Commonwealth v. Webster, 1
57 N. W. 257. Bush (Ky.) 616.
52. Bishop V. State, 16 Ohio St. 55. Belding v. State, 25 Ark. 315.
419; Wheeler y. State, 38 Tex. 173. 56. People y. Bartlett, 3 Hill (N.
5S. Alabama. — Ingram v. State, 27 Y.) 570; Caldwell v. Commonwealth,
Ala. 17. 14 Gratt. (Va.) 698.
439 Bail. § 428
extradited, his sureties are set free from liability." And where
the condition of the recognizance provides for the appearance of
the principal at the next regular term and at any subsequent term,
an agreement between him and the State, superseding this condi-
tion without the sureties' consent, will discharge them.^^ But the
fact that the indictment found against the principal and properly
presented in open court at one term, but not entered upon the
docket until the succeeding term, is not a cause for discharging
the bail, because the principal's right was not affected in any way
hj the non-entry of the case upon the docket at the first term.^^
§ 428. Exoneration of Bail by Act of God. — The sureties are
exonerated from liability where the performance of the condi-
tion is rendered impossible by the act of G-.d.^^ Thus, where the
principal is too sick to appear it will exonerate the sureties."
But it is held on the contrary that the principal being sick in
another county did not exonerate them from producing him
in court.^^ If the money has been paid by the surety after for-
feiture, he is not entitled to its recovery upon the death of the
principal.*^ As a general rule, if failure of the principal to ap-
pear is caused by the act of God, he will be excused.^'*
57. Reese v. United States, 9 Wall. Hill 370; People v. Manning, 8 Cow.
(U. S.) 13, 19 L. Ed. 541. ' 297.
58. United States v. Backland, 32 Coke Litt. 306a.
Fed. 156. 61. State v. Tubbs, 37 N. Y. 586.
See, also. State v. Babb, 39 Mo. Compare Piercy v. People, 10 111.
App. 543; Swank V. State, 3 Ohio St. App. 219; State v. Edwards, 4
433; Keefhauer v. Lowe, 2 Pa. St. Humph. (Tenn.) 226.
241. 62. Piercy v. People, 10 111. App.
Compare State v. Haskitt, Riley 219.
(S. C.) 97. But, see Hargis v. Begley, 33 Ky.
6». State V. Spear, 54 Vt. 503; Law. Rep. 1020, 112 S. W. 602, where
King V. Clark, 5 B. & A. 728. the principal was shot while in an-
60. United States. — Taylor v. other state on a visit.
Taintor, 16 Wall. 366, 21 L. Ed. 287. 63. People v. Rich, 36 App. Div.
Alabama.— Pynes v. State, 45 Ala. (N. Y.) 60, 56 N. Y. Supp. 277.
52. 64. Alabama. — Payne v. State, 45
Illinois. — Piercy v. People, 10 111. Ala. 52.
APP- 219. Colorado.— Chase v. People, 2
New Jersey. — State v. Traphager, Colo. 481.
45 N. J. L. 134. Connecticut. — Parker v. Bidwell,
New York.— People v. Bartlett, 3 3 Conn. 84.
§§ 429, 430 SuEETYsiiiP and Guaranty. 440
§ 429. Exoneration by Act of Law. — The sureties are also re-
lieved of liability by act of law. Thus, if the principal is arrested
in the State where the obligation is given, and sent out of the
State upon extradition, such act will release the sureties.'^'' liut
where the bail permit their principal to go into another State of
his own volition, where he is arrested for another crime, this does
not operate to release the sureties, because they had the friendly
custody of the principal, and it was their neglect that allowed his
departure from the State where the obligation was executed;®^
and even if he is imprisoned in the other State, this does not re-
lease the home sureties.*"^
§ 430. Exoneration by Act of Obligee. — The act of the
obligee, or State, may also discharge the surety.^^ Thus, where
Georgia. — State v. Cone, 32 Ga. miss the indictment and release the
663. hail, they are still liable. All per-
lowa. — State v. Scott, 20 Iowa 63. sons are charged with notice of the
Kentucky. — Way v. Wright, 5 power conferred upon such attor-
Metc. 380; McClelland v. Chambers, ney by the laws of the state and
1 Bibb 366. the limitations upon that authority.
^ew Jersey.— State v. McNeal, 18 Husbands v. Commonwealth, 143
N. J. L. 33. Ky. 290, 136 S. W. 632.
New York.— People v. Tubbs, 37 if a principal goes into another
N. Y. 586. state of his own volition with
Pennsylvania.- Scully v. Kirkpat- knowledge that prior indictments
rick, 79 Pa. St. 324. are pending against him there, his
Tennessee. — State v. Edwards, 4 arrest, trial and conviction wh le
Humph. 226. there will not discharge his sure-
Virginia.— Coldwell V. Common- ties. United States v. Marrin (U.
wealth, 14 Gratt. 698. S D. C), 170 Fed. 476, citing United
65. Taylor v. Taintor, 16 Wall, states v. Van Fossen, 28 Fed. Cas.
366, 21 L. Ed. 287; Cain v. State, 55 357, nq. 16,607.
Ala. 170; State v. Allen, 2 Humph. 67. United States.— United States
258; Devine v. State, 5 Sneed y van Forsen, 1 Dill. 406.
(Tenn.) 626; State v. Adams, 3 Head Iowa.— State v. Scott, 20 Iowa 63.
(Tenn.) 260. Massachusetts. — Hartington v.
66. Taintor v. Taylor, 36 Conn. Dennie, 13 Mass. 92.
242; Yarbrough v. Commonwealth, Nebraska. — King v. State, 18 Neb.
89 Ky. 151, 12 S. W. 143; Withrow 275, 25 N. W. 519.
V. Commonwealth, 1 Bush 17; State Tennessee. — Devine v. State, 5
V. Horn, 70 Mo. 466. Sneed 623.
^Vhere the commonwealth's attor- 68. Taylor v. Taintor, 16 Wall. (U.
ney, without authority, agrees to dis- S.) 366, 369, 21 L. Ed. 287; Buffing-
441
Bail.
431
the governor of the State recognizes a requisition from another
State and delivers the principal, who is taken out of the State,
this operates to release the bail.*^^ So where the State and prin-
cipal makes a separate contract unknown to the sureties, vary-
ing their liability, it releases them.'" So where the State enacts
Liiat all prior recognizances shall be void, and directs the court
in Vvhich they are pending to dismiss them, the sureties are dis-
ciiarged ;'^ and so where the court before which the principal is
to appear is abolished without qualifications.^^
§ 431. Exoneration of Sureties in General. — The discharge
of the principal is also a discharge of the bail.^^ So if the principal
is taken from the custody of the bail by the military, the bail are
released.'* But if he voluntarily enlists this does not discharge
the pi'incipal, as held by the weight of authority,^" though there are
other decisions to the contrary.'''
The State may also remit the penalty, and thereby discharge the
sureties." The conviction of the principal operates as an exon-
ham V. Smith, 58 Ga. 341; Steelman
V. Mattex, 38 N. J. L. 247; State v.
Allen, 2 Humph. (Tenn.) 258; State
V. Adams, 3 Head 260.
69. Taylor v. Taintor, 16 Wall.
(U. S.) 366, 21 L. Ed. 287.
70. Reese v. United States, 9 Wall.
(U. S.) 13, 19 L. Ed. 541; United
States V. Backland, 33 Fed. 156.
71. Doniphan v. State, 50 ]\Iiss. 54.
72. Taylor v. Taintor, 16 Wall. (U.
S.j 366, 369, 21 L. Ed. 287.
See, also. State v. Berry, 34 Ga.
546.
73. Arkansas. — State v. Glenn, 40
Ark. 332.
Georgia, — Roberts v. Gordon, 86
Ga. 386, 12 S. E. 648.
Indiana. — Lyons v. State, 1 Blackf.
309.
Kentucky. — Smith v. Common-
wealth, 91 Ky. 588, 16 S. W. 532.
Louisiana. — State v. Wilson, 14
La. Ann. 450.
Missouri.— State r. Cobb, 44 Mo.
App. 375.
JVew York. — Wells v. McCoy, 4
Cow. 410; People v. Felton, 36 Barb.
429.
Pennsylvania. — Commonwealth v.
Real Estate Title Ins. & T. Co., 22
Pa. Super. Ct. 235.
74. Belding v. State, 25 Ark. 315.
75. Huggins v. People, 39 111. 241;
Winninger v. State, 23 Ind. 228;
State V. Scott, 20 Iowa 63; Harting-
ton V. Dennie, 13 Mass. 93.
76. Commonwealth v. Terry, 2
Duv. (Ky.) 383; People v. Caskney,
41 Barb. (N. Y.) 118.
See sec. 411.
77. Harbin v. State, 75 Iowa, 263,
43 N. W. 210.
As to setting aside forfeiture, see
§ 43, herein.
^ 431
Suretyship and Guaeanty.
442
eretur of the bail without formal entry to that eflfect/^ unless the
bond provides that the principal shall abide the judgment of the
•court.'^ If the principal is arrested after conviction, the bail are
discharged.*" And the postponement of the trial without the
knowledge or consent of the sureties renders the recognizance
void.*^ Quashing the indictment or entering a nolle prosequi does
not discharge the bail, and if another indictment is found, they
must produce the principal, when the recognizance provides that
the principal shall not depart the court without leave. ^" The nolle
of a criminal proceeding in a certain form, leaving a potentiality
of its future prosecution in a different method, does not ipso facto
discharge the principal or sureties from the obligation of the
recognizance and bond f^ that is, the second indictment includes
the oifense described in the bail bond and grows out of the same
transaction.** And the mere failure to indict does not discharge
the bail,*^ as the court must release the principal.*® And it matters
78. Roberts v. Gordon, 86 Ga. 386,
12 S. E. 648.
Appearance, plea of guilty, and
pronouncing of sentence will dis-
charge bail. Phillips v. State (Ark.
1911), 140 S. W. 734.
79. Campbel v. State, 18 Ind. 375;
State V. Stewart, 74 Iowa 336, 37 N.
W. 400.
80. Moorehead v. State, 38 Kan.
489, 16 Pac. 957; Jackson v. State,
52 Kan. 249, 34 Pac. 744; State v.
Wurmann, 124 Mo. 502, 28 S. W. 2;
Childers v. State, 25 Tex. Cr. App.
€58.
81. Reese v. United States, 9 Wall.
(U. S.) 13, 19 L. Ed. 541; State v.
Mackey, 55 Mo. 51.
Compare State v. Smith, 66 N. C.
620.
See, as to appearance and post-
ponement of day or term, § 423
herein.
82. State v. Brooks, 48 La. Ann.
855, 19 So. 739; State v. Hancock, 54
N. J. L. 393, 24 All. 726.
An abandonment of prosecution
prevents forfeiture. Louisiana So-
ciety for Prevention of Cruelty to
Children v. Moody, 111 La. 199, 35
So. 516.
83. Silvers v. State (Webster v.
State), 59 N. J. L. 428, 37 Atl. 133.
84. Arkansas. — Hortsell v. State,
45 Ark. 59.
Kentncky. — Commonwealth v.
Skiggs, 3 Bush 19.
Louisiana. — State v. Brooks, 48
La. Ann. 855, 19 So. 739.
South Carolina. — State v. Haskett,
3 Hill 95.
Virginia. — Arche v. Common-
wealth, 10 Graft. 627.
Compare State v. Mathis, 3 Ark.
84; State v. Langton, 6 La. Ann.
282; People v. Felton, 36 Barb. (N.
Y.) 429.
85. Fitch v. State, 2 Nott & M. (S.
C.) 558.
86. Fleece v. State, 25 Ind. 384;
Commonwealth v. Roberts, 4 Mete.
(Ky.) 220; State t. Doane, 30 La.
443 Bail. § 431
not, though the principal is indicted for an offense different than
the one for whicii he gives bail.*^
The loss of the indictment has no effect as to the bond.** But
if the recognizance is taken by an officer who had no authority so
to do, it is void.^^ And if the bond recites no crime against the
law it is void.^° And when the principal is required to give bail
in separate and distinct sums, a single bond covering the aggre-
gate amount, is void.''^ And so if the office of the justice is charged
after bail is given, and before the time set for appearance, and
the parties without any knowledge of such change appear at the
former place, the bail is discharged.'^
Where the sureties and principal are liable severally, and not
jointly, a remission of the penalty after forfeiture does not release
the sureties.^^ A bond not certified and filed according to law,
and not returned until the officer is out of office by expiration of
his term, is void.^* For a bond taken in criminal cases must be
according to law.^^ But it is no defense that the bond does not
properly describe the offense charged against the principal where
the latter has received the same benefits which he would have,
if such omission did not exist.^^ It being declared that a person
cannot resist a forfeiture by attacking an indictment except where
it is void.^^ And it is held that the sureties are not relieved by
the fact that the information and affidavit do not charge the com-
mission of the offense in the county in which it was actually com-
mitted as the jurisdiction of the court to require such a bond de-
Am. 1194; Jones v. State, 11 Tex. 91. United States v. Goldstein, 1
Cr. App. 412. Dill. C. C. 43; State v. Buffum, 22 N.
87. Pack V. State, 23 Ark. 235; H. 267.
Commonwealth v. Clocum, 14 Gray 92. Hammon v. State, 38 Ind. 32.
395; Commonwealth v. Butland, 119 93. State v. Davidson, 20 Mo. 212.
Mass. 317; Duke t. State, 35 Tex. 94. State v. Pratt, 148 Mo. 402, 15
424. S. W. 113.
88. Price v. State, 42 Ark. 178; 95. State v. Winninger, 81 Ind. 13;
Crouch V. State, 25 Tex. 755. Dickinson v. State, 20 Neb. 72, 29
89. State v. Winninger, 81 Ind. N. W. 184; Powell v. State, 15 Ohio
51; Commonwealth v. Roberts, 1 579; State v. Clarke, 15 Ohio 595;
Duv. (Ky.) 199. Williams v. Shelby, 2 Oreg. 144.
Compare Pack v. State, 23 Ark. 96. People v. Russell, 35 Misc. R.
235. (N. Y.) 765, 72 N. Y. Supp. 1.
90. Nicholson v. State, 2 Ga. 363; 97. Williams v. Candler, 119 Ga.
Foster v. State, 27 Tex. 236. 179, 45 S. E. 989.
§§ 4;J2, 433 Suretyship and Guaranty. 44:4r
pentls on tbo allegations of the information and where they prop-
erly charge the commission of an offense as within the court's
jurisdiction, the power to require a recognizance exists.^*
And in an action on the undertaking of bail, the obligation of
the sureties is not affected by the question whether the prosecu-
tion of the offense is barred by the statute of limitations.^*
§ 432. Subrogation in Criminal Cases. — To enable the bail
to escape the payment of their recognizance by performau .
which the recognizance binds them to do, the State will lend them
its aid in every proper way by process and without process to seize
the person of the principal and compel his appearance. This is
the kind of subrogation which exists in a criminal case ; that is,
subrogation to the means of enforcing the performance of the
thing which the recognizance of bail is intended to secure the per-
formance of, and not subrogation to the peculiar remedies which
the State may have for collecting the penalty. Subrogation to the
State's remedies would clearly be against public policy by sub-
verting as far is it might prove effectual the very object and pur-
pose of the recognizance.^ And the statute conferring on sure-
ties on bonds to the United States who are forced to pay the ob-
ligation, priority over other creditors does not apply to recogniz-
ances in criminal proceedings, and does not authorize an action in
the name of the United States. Its only advantage is the priority
given over other creditors of the principal, and not in the mode
and form of procedure.^
§ 433. Forfeiture of Bond. — Where the principal makes de-
fault and does not appear, the recognizance becomes ipso fa' to
forfeited, and the liability of the sureties arises and becomes ab-
solute, and a subsequent arrest of the principal does not work an
exoneration of the sureties.^ And the arrest of the principal upon
a bench warrant and his discharge upon entering into another
98. State V. Osborn, 155 Ind. 385, 2. United States v. Preston, 4
58 N. E. 491. Wash. C. C. 446; United States v.
99. United States v. Dunbar, 83 Ryder, 110 U. S. 729, 4 Sup. Ct. 196,
Fed. 151. 28 L. Ed. 308.
1. United States v. Ryder, 110 U. H. People v. Bennett, 136 N. Y.
S. 729, 4 Sup. Ct. 196, 28 L. Ed. 30S. 482, 32 N. E. 1044.
445 Bail. § 433
recognizance to appear and answer to the charge, which he kept,
IS no defense to an action on the first recognizance.* And so a
subsequent trial and conviction of the principal does not affect
rhe forfeiture.^ Because a surety cannot, after the recognizance
has been forfeited, discharge himself by surrendering his prin-
cipal.**
If the statute prescribes certain formalities as a prerequisite
to forfeiture there should be a compliance therewith and the rec-
ord should show that there has been,' though it is held that mere
clerical omissions such as a failure to put a file mark on a recog-
nizance,^ or to promptly enter the forfeiture will not affect a de-
cree declaring it.^ And where by statute proceedings on a bond
are not to be defeated by any irregularity or defect of form an
order of forftiture is not void for failure to state the amount ;^''
nor can there be a collateral attack on an order of forfeiture upon
the ground that the record does not show that it was taken at the
proper time.^ Again a failure of the record to show jurisdiction
over the accused will not render a decree of forfeiture invalid. ^^
And where by statute an action on a bond is not barred by neglect
to note a default on the record a forfeiture may be proved by
parol evidence.^^
The court has no power to forfeit a bond where the principal is
ready and willing to perform the conditions thereof.^*
4. People V. Anable, 7 Hill (N. Y.) 8. Commonwealth v. Meeser, 19
33. Pa. Super. Ct. 1.
5. Walker v. Commonwealth, 79 9. Lawrence v. Commonwealth,
Ky. 292. 25 Ky. Law Rep. 455, 76 S. W. 10.
6. People V. Bartlett, 3 Hill (N. Compare State v. Hindman, 159
Y.) 570; State v. McGuire, 16 R. I. Ind. 586, 65 N. E. 911.
519, 17 Atl. 918; State v. Warren, 17 10. State v. Eyermann, 172 Mo.
Tex. 283. 294, 72 S. W. 539.
Compare Freeman v. State, 112 11. State v. Hindman, 159 Ind.
Ga. 648, 37 S. E. 886. 586, 65 N. E. 911.
7. Louisiana Society for Preven- 12. State v. Eyermann, 172 Mo.
tion of Cruelty to Children v. 294, 72 S. W. 539.
Moody, 111 La. 199, 35 So. 516. 13. Hesselgrave v. State, 63 Neb.
Scire facias must be issued as a 807, 89 N. W. 295, decided under
prerequisite to a legal judgment Neb. Code Cr. Proc. § 388.
against a surety. Braxton v. Cand- 14. Humphries v. State (Tex. Cr.
ler, 112 Ga. 459, 37 S. E. 710. App. 1902), 69 S. W. 527.
§ 4;j4
SUKETYSHIP AND GUARANTY.
446
§ 434. Setting Aside Forfeiture. — The forfeiture may be set
aside under some conditions. Thus, where the principal uses due
diligence and is not guilty of laches and appears as soon as pos-
sible with no intent to evade the law, the court will generally
grant him and his sureties relief. ^^ Each case, however, must be
decided according to the circumstances surrounding it.^^
The power to remit a forfeiture is discretionary," though an
exercise of such discretion will not be sustained where it has been
abused.^^
It is wnthin the power of the court, incidental to its jurisdic-
tion in criminal cases, to grant relief to bail where the default
was caused by the sickness or death of the accused before for-
feiture, and where the death of the principal occurs after for-
feiture when the bail is fixed. It is in every case an appeal to
the discretion of the court, which will be exercised when justice
to the bail demands it and public justice and policy do not pro-
15. Wray v. People, 70 111. 664.
16. Hauglesben v. People, 89 111.
164; People v. Flynn, 53 111. App.
493; Riggen v. Commonwealth, 3
Bush (Ky.) 493; Rawlings v. State,
38 Neb. 590, 57 N. W. 286; Common-
wealth V. Oblender (Appeal of
Kneezel, 135 Pa. St. 536), 135 Pa.
St. 530, 19 Atl. 1057.
Time of making application for
remission, see State v. Bordelon, HI
La. 105, 35 So. 476; State v. Hayes,
104 La. 461, 29 So. 22; State v. Bon-
gard, 89 Minn. 426, 94 N. W. 1093;
In re Sayles, 84 App. Dlv. (N. Y.) 210,
82 N. Y. Supp. 671, rev'g 81 N. Y.
Supp. 258.
17. In re Sayles, 84 App. Div. (N.
Y.) 210, 82 N. Y. Supp. 671, rev'g
81 N. Y. Supp. 258; In re Leano, 60
Misc. R. (N. Y.) 520, 113 N. Y. Supp.
1115.
Discretion is judicial. Where a
court is empowered by statute to
" in its discretion to remit a whole
or a part of the sum specified in the
bail bond," the discretion is a judi-
cial and not an arbitrary one Fort-
ney v. Commonwealth, 140 Ky. 545,
131 S. W. 383.
After judgment against bail.
Where the statute provides that " If
before judgment is entered against
the bail, the defendant be sur-
rendered or arrested, the court may
at its discretion, remit the whole
or a part of the sum specified in the
bail bond," the court has no power
to set aside a judgment rendered
on a recognizance or bail bond
after the day upon which it was
rendered. Logan v. Commonwealth,
144 Ky. 494, 139 S. W. 741.
To remit only a jiart is not an
abuse of discretion. Commonwealth
V. Cohen, 22 Pa. Super. Ct. 55.
Prosecutor cannot appeal from
an order of remission. Common-
wealth V. Real Estate Title Ins. &
Trust Co., 22 Pa. Super. Ct. 235.
18. In re Sayles, 84 App. Div. (N.
Y.) 210, 82 N. Y. Supp. 671, rev'g 40
Misc. R. 135, 81 N. Y. Supp. 258.
447 Bail. § 435-
hibit it.^® But sickness of the surety is no defense, the principal
still being at large.^** Threats against the principal's life is a
sufficient excuse for his non-appearance where the officers of th&
law will not protect him on being so requested.^^ Thus, the fact
that the principal has forfeited his bond because he could not
appear without danger of losing his life by a mob, will not ex-
cuse the bail unless the proper authorities were applied to and
were unable or unwilling to extend to the accused the protection
necessary to enable him to appear.^^
In order to receive relief the principal must show that it was not
his own fault that he did not appear.^^ The surety also must not
be in fault in conniving at or consenting to the deault, in order
to secure relief.^* In some jurisdictions, relief will not be granted
until trial of the principal and conviction or discharge adjudged.^'
§ 435' Voluntary Appearance or Arrest After Forfeiture —
Costs. — Generally a forfeiture of a recognizance will be vacated on
payment of costs and expenses, where, after the default, the prin-
cipal voluntarily appears in court, in case sufficient cause is shown
for his failure to appear according to the obligation of his recog-
19. Colorado. — Chase v. People, 2 20. People v. Meehan, 14 Daly (N".
Colo. 481. Y.) 333.
Georgia. — Russell v. State, 45 21. Fleenor v. State, 58 Ind. 166.
Ga. 9. 22. Weddington v. Commonwealth,.
Jfew Jersey.— State v. Traphagen, 79 Ky. 582.
45 N. J. L. 134. 23. United States v. McGlashire,
New York.— People v. Tubbs, 37 66 Fed. 537; People v. McFarland, 9
N. Y. 586; People v. Manning, 8 Cow. 111. App. 275; Riggen v. Common-
297. wealth, 3 Bush ( Ky.) 493.
Texas.— Baker v. State, 21 Tex. 24. People v. Smith, 2 Hilt. (N.
Cr. App. 859. Y.) 523.
Where bail liaie been misled by 25. State v. Schexneider, 45 La.
the attorney for the state who has Ann. 1445, 14 So. 250; State v..
consented and allowed the principal Hamill, 6 La. Ann. 257; State v^
to go out of the state they should Saunders, 8 N. J. L. 177; People v.
be allowed a reasonable time to Wissig, 7 Daly (N. Y.) 23; People
produce him. Husbands v. Com- v. Fields, 6 Daly (N, Y.) 410; People
monwealth, 143 Ky. 290, 136 S. W. v. Coman, 5 Daly (N. Y.) 527; Rex
662. V. Spencer, 1 Wils. 315; Rex. v. Fin-
more, 8 T. R. 403.
§ 430
SUKETYSHIP AND GUARANTY.
448
nizance.^^ The costs must be paid before relief will be granted in
any case,"^ and also the other necessary expense.^^ And a mere
agreement to pay the costs is not sufficient; they must actually
be paid.^^
§ 436. Effect of Remission of Forfeiture. — After remission of
the forfeiture, then the principal stands in a position as if no
forfeiture had occurred, and it is then his duty to comply with
the condition of the recognizance and appear in court until the
charge against him is legally disposed of.^*^
And an appeal does not lie from the order and judgment of the
court in recognizance to remit the forfeiture,^^ except in case of
abuse of discretion. ^^
The power to remit may be exercised for the benefit of the
sureties as well as for the principal.^^
If after forfeiture the accused is surrendered by the bail, and
is convicted and punished, the forfeiture will be remitted as to
the sureties f* and if the accused appears and stands trial and
is acquitted, this is sufficient ground for remission of the forfei-
ture,^ or if he is convicted.^^
26. Rawlings v. State, 38 Neb. 590,
.57 N. W. 286.
27. Ward v. Colquitt, 62 Ga. 267.
28. People v. Brady, 19 Civ. Pro.
Rep. (N. Y.) 372.
24. People v. Smith, 43 111. App.
217.
30. State v. Cornig, 42 La. Ann.
416, 7 So. 698.
31. People V. Bennett, 136 N. Y.
482, 32 N. E. 1044; Bross v. Com-
monwealth, 71 Pa. St. 262; Common-
wealth V. Oblender (Appeal of
Kneezel), 135 Pa. St. 536, 19 Atl.
1057.
32. Illinois.— People v. Hobbs, 46
111. App. 206.
Iowa. — State v. Kraner, 50 Iowa
582.
Kentucky. — Commonwealth v.
Coleman, 2 Mete. 382.
Louisiana. — State v. Denny, 10 La.
Ann. 335.
New York. — In re Sayles, 84 App.
Div. 210, 82 N. Y. Supp. 671, rev'g
40 Misc. R. 135, 81 N. Y. Supp. 258.
Texas. — Barton v. State, 24 Tex.
250.
33. State v. Rollins, 52 Ind. 108;
Harbin v. State, 78 Iowa 263, 43 N.
W. 210.
34. People v. Johnson, 4 N. Y.
Supp. 705.
35. State v. Saunders, 8 N. J. L.
177; People v. Higgins, 7 N. Y. Supp.
658.
36. People v. Cooney, 9 N. Y. Supp.
285; People v. Madden, 8 N. Y. Supp.
531.
Compare State v. Warrick, 3 Ind.
App. 508.
449
Bail.
§ 437
§ 437. Taking Money in Lieu of Bail. — Where no authority is
given by statute to take money in place of bail, a deposit of money
so taken is illegal." In some jurisdictions the statute provides
for taking money in place of bail.^^ In these jurisdictions where
money may be deposited as bail, and the forfeiture is set aside,
the money may be recovered back.^^ But where no authority is
given to take such money, after it is deposited with the sheriff,
it cannot be recovered back/" though it should be paid into the
county treasury just as if collected upon a recognizance/^
37. Butler v. Foster, 14 Ala. 323;
Smart v. Cason, 50 111. 195; Reinhard
V. Columbus, 49 Ohio St. 257, 31 N.
E. 35.
38. Morrow v. State, 6 Kan. 222;
Dean v. Commonwealth, 1 Bush
(Ky.) 20; People v. Laidlow, 102 N.
Y. 588, 7 N. E. 910; Wash v. State,
3 Cold. (Tenn.) 91.
Money presumed to be defend-
ant's.- Under the statutes in Okla-
homa, which permit a deposit, in
lieu of bail and which make no pro-
vision that the money be returned
to one other than the defendant. It
is decided that the money so de-
posited should, for the purpose of
the deposit, be conclusively pre-
sumed the money of the defendant
and treated accordingly. Whiteaker
v. State, 31 Okla. 65, 119 Pac. 1003.
Compare Doty v. Braska, 138 Iowa
396, 116 N. W. 141.
Where money is paid by a judg-
ment debtor to and accepted by a
sheriff, pursuant to a stipulation be-
tween the parties to a judgment, he
is a party in fact to such stipulation
although he does not sign it and is
not justified in applying or paying
over the money otherwise than In
accordance with the terms of the
agreement. Donahue v. Gunter, 142
Wis. 447, 125 N. W. 950.
Money deposited as bail may be
applied in satisfaction of a fine un-
29
der § 1297 of the California Penal
Code. La Porte v. Williams, 17 Cal.
App. 428, 120 Pac. 55.
Entry of forfeiture. Where money
is deposited in lieu of bail and the
defendant fails to appear it is only
necessary in order to declare a for-
feiture that the court should direct
the fact of the deposit, and of the
defendant's neglect to appear, to be
entered of record. The forfeiture
then follows as a matter of course.
Whiteaker v. State, 31 Okla. 65, 119
Pac. 1003.
39. Arquette v. Supervisors ot
Marshall County, 75 Iowa 191, 39 N.
W. 264.
Jurisdiction of the person to
wliom bail money is paid oyer,
whether such payment is rightful or
wrongful, is essential before an or-
der can be made directing such per-
son to return the money. Edward
V. County of Hennepin, 116 Minn.
101, 133 N. W. 469.
One entitled to a return of at least
a portion of the sum deposited by
him should not be denied recovery
because in his complaint he de-
mands the entire sum. Donahue v.
Gunter, 142 Wis. 447, 125 N. W. 950.
40. Smart v. Cason, 50 111. 195.
Cooper V. Rivers, 95 Miss. 423, 48
So. 1024.
41. Rock Island v. Mercer County,
24 HI. 35.
I 438 Suretyship and Guaeanty. 450
CHAPTER XVI.
SURETY COMPANIES.
Section 438. Statutes Affecting Surety Companiea.
439. Statute Cannot Fix Rate Company May Charge.
440. Penalty Statute — Surety Company — Construction of.
441. Foreign Surety Companies.
442. Rule that Surety a Favorite of the Law not Applicable to
Surety Companies.
443. Surety Company Contract Treated Similar to Insurance
Contract.
444. Surety Contracts Treated as Insurance Contracts — Appli-
cation of Principle to Agents — Premiums.
445. Surety Bond and Application Construed Together.
446. Surety Company and Agent — Apparent Scope of Authority.
447. Surety Company and Agent — Written Authority.
448. Notice to Company of Default — Provision as to Construed
— Waiver.
449. Where Company Succeed to Assets of Another Company.
Sec. 438. Statutes Affecting Surety Companies. — There have
been numerous statutes passed in the various states which affect
the rights and liabilities of surety companies, as, for instance, pro-
viding the manner in which such a company shall justify,^ as to
binding the surety by act of the agent,^ the right to demand in-
1. The method by which a surety knowledge that a person is acting as
company shall justify, as provided in agent of a surety company, this is
§ 4, ch. 720, Laws 1893, as amended sufficient to indicate to him that the
by ch. 178, Laws 1895, held not ex- authority of such person to so act
elusive. Haines v. Hein, 67 App. is in writing and imposes upon him
Div. (N. Y.) 389, 73 N. Y. Supp. 293. the duty of inquiring into the powers
2. Where it is provided by statute conferred. United States Fidelity &
that no person shall be bound as the Guaranty Co. v. McGinnis' Adm'r
surety of another by the act of an (Ky. C. A. 1912), 145 S. W. 1112.
agent, unless the authority of the A statute providing that any per-
agent is in writing, signed by the son who solicits business on behalf
principal, the act is construed as ap- of a surety company " shall be held
plying both to private and official to be the agent of such corporation,
obligations. First National Bank of so far as relates to all the liabilities
Covington v. Gaines, 87 Ky. 597, 9 S. and penalties prescribed by this
W. 396, 10 Ky. Law Rep. 451. act," does not make him liable for
Under such an act, where one has any acts which if done by the com-
451 Surety Companies. § 440
demnity from the principal/ to petition for release from liability/
and whieli otherwise affect their rights.^
Under a code provision that the production of the certificate
of authority of a surety company shall be sufficient authority for
the approval of any bond or undertaking, it will be presumed in
pany would not have subjected it to was no intention to give such a
any penalty or liability. Davis v. surety the rights to apply for re-
Pullman Co., 34 Tex. Civ. App. 621, lief. The Court, however, said: "As
79 S. W. 635. they are expressly named in one
3. A surety company is not en- part and named generally in an-
titled, under the Kentucky statutes, other, with no exception or qualifi-
to demand indemnity for liability cation, there is no adequate reason
from its principal unless it is so to believe that the legislature in-
stipulated in the contract of surety- tended to exclude them from any
ship and it cannot obtain a release part. There was no necessity for
after the expiration of the term of repeating the words ' fidelity or
the officer for whom it became surety companies ' in order to make
surety. United States Fidelity & the section, as an entirety, apply to
Guaranty Co. v. Paxton, 142 Ky. 361, them, for they had already been
134 S. W. 481, construing Ky. Stats., named and were necessarily in-
§§ 723, 4659, 4663, 4664. eluded, unless expressly excepted.
4. Under a provision of the Code As the legislature did not make any
of Civil Procedure in New York, exception, we cannot, for there is no
sureties upon official bonds are un- basis for an exception by implica-
der certain circumstances permitted tion. The section refers to only
to petition for release from liability, surety or sureties, and the appellant
In construing this provision (§ 812) is a surety. Having contracted as a
it is decided that fidelity and surety surety in the manner authorized by
companies are not excepted from the Code, it can avail itself of such
such provision and can avail them- remedies as the Code provides for
selves in proper cases of such reme- sureties generally." Per Vann, J.
dies as the Code provides for sure- 5. Kevoking license of company
ties generally. Matter of Thurber, for non-payment of judgment. San-
162 N. Y. 244, 56 N. E. 631, reversing doval v. United States Fidelity &
43 App. Div. 528, 60 N. Y. Supp. 198. Guaranty Co., 12 Ariz. 348, 100 Pac.
It was contended in this case that 816.
while the general words " surety " Assignment of claim to company.
Or " sureties " were broad enough to A surety company may take an as-
embrace surety companies, yet that signment from an administratrix for
as the legislature when referring to whom it has become surety of a
such a company elsewhere in the sec- claim against next of kin for over-
tion, or the one preceding, named it payments by her to them. Lawyers
In terms, and did not so name it in Surety Co. v. Reinach, 25 Misc. R.
the provisions authorizing the court (N. Y.) 150, 54 N. Y. Supp. 205, af-
to relieve a surety from further lia- firming 23 Misc. R. 242, 51 N. Y.
bility, it was presumed that there Supp, 162.
§§ 439, 4-iO Suretyship and Guaranty. 452
the absence of an affirmative showing to the contrary that the cer-
tificate of authority was produced before the clerk who approved
an undertaking entered into by a surety company. It is not
necessary for the clerk's certificate of approval to show that the
corporation is authorized to execute the undertaking, nor is it
necessary that such certificate of authority be annexed to, or
made a part of the undertaking or of the clerk's certificate.^
It is not necessary to state in a bond executed by a foreign com-
pany, under a statute permitting a surety company to act as surety,
that such company was authorized to do business in the State,
and if a party wishes to attack the sufficiency of a surety on such
a groimd, the burden is upon him to prove lack of authority.^
§ 439. Statute Cannot Fix Rate Company May Charge. — The
business of companies engaged in furnishing surety bonds is not
one devoted to a public use, or affected by a public interest and
is in no way a monopoly. It is not therefore one which the State
may, in the exercise of its police power, regulate by fixing the
rates to be charged for assuming the obligation of a surety and
a statute which prescribes such rates is unconstitutional as a vio-
lation of the fourteenth amendment to the Constitution of the
United States providing that no State shall '' deprive any per-
son of life, liberty or property without due process of law."^
§ 440. Penalty Statute — Surety Company — Construction of.
— In the application of the principle that where statutes are penal
in their nature it is essential, in order to recover the penalty pro-
Tlie term " surety companies " in 955, Political Code, is authorized to
Cal Stats., 1903, p. 476, providing become the sole surety on any un-
" for the payment by the State or dertaking or bond required by any
counties, or cities, or cities and law of that State. San Luis Obispo
counties, of the premium or charge County v. Murphy (Cal. S. C. 1912),
on official bonds when given by 123 Pac. 808.
-surety companies," includes any cor- 6. Germantown Trust Co. v. Whit-
poration organized for the purpose ney, 19 S. D. 108, 102 N. W. 304.
of carrying on the business of be- 7. Clopton v. Gk)odbar (Tex. Civ.
coming a surety on bonds and un- App. 1900), 55 S. W. 972.
dertakings, which, by sections 1056 8. American Surety Co. v. Shallen-
and 1057 of the Code of Civil Proce- berger (U. S. C. C. 1910), 183 Fed.
dure and subdivision 4 of section 636, holding Nebraska Act April 1,
1909 (Laws 1909, c. 27) void.
453 Surety Companies. § 441
vided for, that the case must come within the very terms of the
statute, it is held that where a penalty is denounced against cor-
porations engaged in the business of becoming surety who cancel
their obligation and refuse upon request to give a written state-
ment of the facts upon which their action is based the act has no ap-
plication to individuals or corporations engaged in other business
than becoming surety even though such person or other corporation
may be the agent of a surety or guaranty company.^
Under a statute imposing a penalty upon any person, associa-
tion of persons, or corporations who shall accept as surety any
corporation which has not complied with the laws of the State it
is decided in Texas that such penalty can only be recovered by a
suit in the name of the State in a court of competent jurisdic-
tion."
§ 441. Foreign Surety Companies. — In a number of the States
statutes have been passed expresssly relating to the subject of
foreign surety companies and permitting them to do business
within the State upon compliance with certain prescribed condi-
tions and regulations.^^ Where surety companies are governed by
9. Davis V. Pullman Co., 34 Tex. which overcome that presumption,
Civ. App. 621, 79 S. W. 635. be accepted as a surety upon bonds
10. Davis V. Pullman Co., 34 Tex. given to discharge a lien. Matter of
Civ. App. 621, 79 S. W. 635. Keogh, 22 Misc. H. (N. Y.) 747, 50 N.
11. See statutes of particular Y. Supp. 998, 28 Civ. Proc. R. 340.
State. Proof of the solvency of a foreign
Appointment of agent within State company is unnecessary where the
and sufficiency of service of process, evidence shows that it was duly au-
see Turner v. Franklin, 10 Ariz. 188, thcrized to do business in the State
85 Pac. 1070. and it is provided by statute that
Presumption of solvency of foreign where foreign companies have corn-
corporation. A foreign corporation, plied with the law permitting them
duly authorized to become svirety to do business in the State the comp-
upon bonds, which has submitted to troller's certificate of such fact shall
the examination by statute (N. Y. be evidence of the solvency of such
Laws 1893, c. 720, as amended by company. Romine v. Howard (Tex.
Laws 1895, c. 178), which has been Civ. App. 1906), 93 S. W. 690, decided
found solvent, and i;;. shown to be so under article 735, Sayles Rev. Civ.
by a subsequent statement filed by St., 1897.
it with a county clerk, will be pre- Guardians' bonds included in those
sumed to continue solvent and must, which foreign companies might exe-
in the absence of proof of facts cute by Texas Act of June 10, 1897.
§ 442 SUKETYSIIIP AND GUARANTY. 454
special regulations the general law pertaining to foreign corpora-
tions is not applicable to them.^^
Of a statute permitting foreign surety companies upon compli-
ance with certain conditions to do business within a State it is
said that such legislation encourages the substitution of corporate
for individual bonds in all cases where suretyship is required,
that it seeks to supply a public need ; to remedy a public evil and
should receive as liberal a construction as can reasonably be given
to effectuate its beneficial purpose. ^^
A foreign corporation engaged in the surety business will not
be permitted, however, to escape liability upon contracts into
which it has entered by a failure to comply with provisions of the
statutes which authorize it to do business/^
§ 442. Rule that Surety a Favorite of the Law Not Applicable
to Surety Companies. — A surety company which engages in the
business for a consideration is not in the position of a surety for
acconmiodation.^^ Such a company is held to a stricter liability
than the ordinary surety/^ and the rule that sureties are favorites
of the law is not applicable to it.^'^
Less, Guardian, v. Ohio, 92 Tex. 651, was estopped " in any proceeding to
51 S. W. 502, reversing 49 S. W. 635. enforce the liability which it shall
12. Barricklow v. Stewart, 31 Ind. have assurbed to incur, to deny its
App. 446, 68 N. E. 316. corporate power to execute or guar-
The Michigan statutes as to for- anty such instrument, or assume
eign corporations doing business in such liability." See Ranney-Alton
State held not to apply to foreign Mercantile Co. v. Mineral Belt Con-
corporations such as surety com- struction Co., 2 Ind. Terr. 134, 48 S.
panies licensed to do business by W. 1028.
insurance commissioner. Wells v. 15* City of New Haven v. Eastern
United States Fedelity & Guaranty Pav. Brick Co., 78 Conn. 689, 63 Atl.
Co., 160 Mich. 213, 125 N. W. 57. 517; United States Fidelity & Guar-
13. Lovejoy v. Isbell, 70 Conn. 557, anty Co. v. Parker (Wyo. 1912), 121
652, 40 Atl. 531. Pac. 531.
14. Barricklow v. Stewart, Execu- 16. Brandrup v. Empire State
tor, 31 Ind. App. 446, 68 N. E. 316. Surety Co., Ill Minn. 376, 127 N. W.
Estoppel of foreign company. 424.
Under the Act of Congress approved 17. Hull v. Massachusetts Bonding
August 13, 1894, 2 Supp. Rev. St. & Ins. Co. (Kan. 1912), 120 Pac. 544;
U. S. 1892-1896, p. 237, a surety com- Young v. American Bonding Co., 228
pany executing a bond, recognizance Pa. St. 373, 77 Atl. 623.
or other undertaking under the act.
455 iSuEETY Companies. § 442
In a case in Xew York the rule is announced that " The or-
dinary rule of construction applicable to instruments creating the
relation of principal and surety does not apply to a bond executed
upon a consideration by a corporation organized to make such
bonds for profit, but in such a case any doubtful language should
be construed most strongly against the surety and in favor of the
indemnity which the insured had reasonable grounds to expect.^*
'The distinction between the construction given to bonds of
voluntary sureties and of surety companies has been applied in
the case of a bond to secure the performance of a building contract
and which recites that it is executed by the contractor as principal
and by another as surety, it being declared that though in the
former case the bond is void if not signed by the principal yet
that this rule has no application in the case of a surety company
which has collected and retained the premium charged for the
bond and has treated the instrument as properly executed until
a loss has occurred.^^
And in this same case it is declared that the rule that where
changes made without the consent of the surety affect the identity
of a building contract, the surety will be discharged notwithstand-
ing that such changes do not increase or diminish the risk of the
surety, should obtain only in cases of voluntary suretyship and
not in cases where the surety is engaged in the business of surety-
ship for hire.^°
§ 443. Surety Company Contract Treated Similar to Insur-
ance Contract. — In construing contracts of surety companies
the courts have been inclined to apply to them many general rules
and principles which control in the case of insurance contracts.
This is due to the many points of similarity in the conduct of the
business and in the contract itself which is in the nature of a
contract of indemnity, is ordinarily one which is drawn up by
the company, and contains numerous conditions and stipulations
tending to relieve the company from liability in case of violation.^^
18. Town of Whitestown v. Title App. 347, 142 S. W. 358, citing Mar-
Guaranty & Surety Co., 72 Misc. R. tin v. Whites, 128 Mo. App. 123, 106
(N. Y.) 498, 131 N. Y. Supp. 390. S. W. 610.
19. Rule V. Anderson, 160 Mo. App. 21. Fnited States. — American
347, 142 S. W. 358. Surety Co. v. Pauly, 170 U. S. 133, 42
20. Rule V. Anderson, 160 Mo. L. Ed. 977, 18 Sup. Ct. 552.
§ 442
SUKETYSHIP AND GUARANTY.
456
In a recent case in Pennsylvania it is said that such a
contract by a corporation for a money consideration is in the
nature of a contract of insurance and that the rule of strictissimi
juris which applies to an individual surety is relaxed as to such
a corporation.^^ So in a case in Iowa it is said that the business
of corporations organized for the purpose of profit in assuring
the performance of contracts of various kinds partakes largely of
the nature of insurance and is carried on in much the same man-
ner.^^ And in a case in Missouri it is said : " The obligations of
a surety company, while not strictly insurance, partake more or
less of that character. They clothe their obligations with all sorts
of conditions, for the violation of any of which they provide for
discharge from liability alto,';;ether, notwithstanding they have
reaped the benefits of the obligation. They stand on a different
footing from an ordinary or straight obligation, uncoupled with
any conditions whatever except those provided for in the letter
of the contract itself."^*
Illinois. — Lesher v. United States
Fidelity & Guaranty Co., 239 111. 502,
88 N. E. 208; People v. Rose, 174 111.
310, 51 N. E. 246, 44 L. R. A. 124.
Iowa. — Van Buren County v.
American Surety Co., 137 Iowa 490,
115 N. W. 24; Getchell & Martin
Lumber & Mfg. Co. v. Peterson &
Sampson, 124 Iowa 599, 100 N. W.
550.
Kentucky. — Champion Ice Mfg.
& Cold Storage Co. v. American
Bonding & Trust Co., 115 Ky. 863, 75
S. W. 197, 25 Ky. Law Rep. 239, 103
Am. St. Rep. 356.
Minnesota. — Brandrup v. Empire
State Surety Co., Ill Minn. 376, 127
N. W. 424, citing Lakeside Land Co.
V. Empire State Surety Co., 105
Minn. 213, 117 N. W. 431.
Missouri. — Rule v. Anderson, 160
Mo. App. 347, 142 S. W. 358; Boppart
V. Surety Co., 140 Mo. App. 683, 126
S. W. 771.
New York. — Town of Whitestown
V. Title Guaranty & Surety Co., 72
Misc. R. (N. Y.) 498, 131 N. Y. Supp.
390.
North Carolina. — Bank of Tarboro
V. Fidelity & Deposit Co. of Mary-
land, 128 N. C. 366, 38 S. E. 908, 83
Am. St. Rep. 682.
Pennsylrania. — Brown v. Title
Guaranty & Surety Co., 232 Pa. St.
337, 81 Atl. 410; Young v. American
Bonding Co., 228 Pa. St. 373, 77 Atl.
623.
Texas. — American Surety Co. v.
San Antonio L. & T. Co. (Civ. App.)
98 S. W. 387.
Washington. — Pacific National
Bank v. Aetna Indemnity Co., 33
Wash. 428, 74 Pac. 590.
22. Brown v. Title Guaranty &
Surety Co., 232 Pa. St. 337, 81 Atl.
410.
23. Van Buren County v. Ameri-
can Surety Co., 137 Iowa 490, 115 N.
W. 24.
24. Boppart v. Surety Co., 140 Mo.
App. 683, 126 S. W. 771, per Broad-
dus, P. J.
457 iSuBETY Companies. § 444
And in a recent case in ]\lissouri it is said : " The deep solici-
tude of the law for the welfare of voluntary parties who bound
themselves from purely disinterested motives never comprehended
the protection of pecuniary enterprises organized for the express
purpose of engaging in the business of suretyship for profit. To
allow such companies to collect and retain premiums for their
services, graded according to the nature and extent of the risk,
and then to repudiate their obligations on slight pretexts that have
no relation to the risk, would be most unjust and immoral and
would be a perversion of the wise and just rules designed for the
protection of voluntary sureties. The contracts of surety com-
panies are contracts of indemnity, and as such, fall under the rules
of construction applicable to contracts of insurance. Since they
are prepared by the companies and generally abound with condi-
tions and stipulations devised for the restriction of the obliga-
tion assumed by the company, such stipulations must not be ex-
tended to favor limitations providing for forfeiture of the con-
tract. They must be strictly construed and no unreasonable right
of forfeiture should be allowed. "^^
§ 444. Surety Contracts Treated as Insurance Contracts — Ap-
plication of Principle to Agents — Premiums. — In applying to
surety companies principles which control in the case of insurance
companies it is declared that the law of agency relating to the con-
tract of liability of the latter class of companies is applicable to
surety companies."^
It was said by the court in this case : " It has been held that
an agent authorized to solicit insurance and attest or countersign
and issue policies is a general agent, and his acts and knowledge
in reference to the risk assumed are the acts and knowledge of his
principal; and without attempting to say that appellant is to be
held as doing an insurance business, the method by which its busi-
ness is obtained and its obligations or contracts are issued to its
patrons is much the same, and we see no reason why the law which
See, also. Rule v. Anderson, 160 See, also, Boppart v. Surety Co.,
Mo. App. 347. 142 S. W. 358. 140 Mo. App. 683, 126 S. W. 771.
25. Rule V. Anderson, 160 ]\Io. App. 26. Getchell & Alartin Lumber
347, 142 S. W. 358, per Johnson, J. Mfg. Co. v. Peterson & Spmpson, 124
Iowa 599, 100 X. W. 550.
§ 445 Suretyship and Guaeanty. 458
governs an agency in one case is not equally applicable to the
other :"^
Another instance in which the obligation of a surety company
is likened to a contract of insurance is in respect to the payment
of premium, it being decided that an indemnity bond guarantee-
ing the repayment of money advanced is valid without a payment
of the premium when it contains no condition making such pay-
ment a prerequisite.^^
The court said in this case that it semed " that the rule must
be that when the insurer delivers a bond guaranteeing the acts of
another, the beneficiary may assume that the premium has been
paid ; otherwise that the bond would not have been executed and
delivered ; and that the insurer cannot afterwards be heard to say
that the premium was not paid, as against the beneficiary who has
in good faith parted with value on the strength of the promise in
the bond. Especially must this be so when there is no recital in
the bond that the pa^-ment of the premium is a necessary pre-
requisite to give it vitality."^^
§ 445. Surety Bond and Application construed Together. —
As in the case of insurance contracts so in the case of surety bonds
it is frequently required that an application shall be made out and
filed with the company upon which its action is based. The bond
if issued by its terms makes the application a part thereof. In
such a case the contract is to be determined by construing the
bond and the application together and the rights and liabilities of
the parties are dependent upon the construction so reached.^**
27. Per Weaver, J. Where a surety company accepts
28. Pacific National Bank v. Aetna and adopts the terms of an applica-
Indemnity Co., 33 Wash. 428, 74 Pac. tion which expressly declares that
590. the life of the bond shall be the in-
29. Per Hadley, J. terval " between the date of said
80. See § 287a herein. bond and the completion and accept-
AnsTvers not a misrepresentation, ance of the work covered " by it, the
See City Trust, Safe Deposit & bond expires when such work has
Surety Co. v. Lee, 204 111. 69, 68 N. been completed and accepted, and
E. 4S5; Hawley v. United States i^i- though the application may pro\ide
■delity & Guaranty Co., 100 A'^p. Div. that notice shall be given of such
(N. Y.) 12, 90 N. Y. Supp. 893, af- completion and acceptance, this does
firmed 184 N. Y. 549, 76 N. E. 1096. not abrogate the express provision
459 Surety Companies. § 446
§ 446. Surety Company and Agent — Apparent Scope of Au-
thority. — In determining the question whether a surety company
is bound by the acts of its agent the principle has been applied
that it is sufficient to charge the employer with liability if the
acts of his agent are within the apparent, though in excess of the
real, scope of his agency.^^
So a surety company having furnished its agents with the form
of a bond, signed and sealed by it awaiting only the signature and
delivery of the agents for apparent validity is held to be liable
thereon for having put it within the power of the agents to cause
loss or disadvantage to innocent third persons.^^ And where a
person occupied a place in the general office of 'a surety company
and persons were referred to him as manager of the bonding de-
partment and he transacted business with them as such it was de-
cided that he was clothed with apparent authority by the
company to execute a bond binding upon it.^^
A general agent of a surety company in a particular locality
who holds himself out as such with the knowledge of the com-
pany, solicits and negotiates surety bonds for it, receives the
premiums and transmits them to the company and delivers the
bonds, has authority to execute a contractor's bond, notwithstand-
ing a secret restriction on his authority that his action in such a
matter must be approved by the company ; and the company is
bound by his action by accepting premiums and paying part of
the obligation created by the bond.^*
as to the life of the bond. In such 83. Aerne v. Gostlow (Oreg. 1911),
a case the company can collect no 118 Pac. 277.
premium after the time specified. M. Anderson v. National Surety
Aetna Indemnity Co. v. Ryan, 53 Co., 196 Pa. St. 288, 46 Atl. 306.
Misc. R. (N. Y.) 614, 103 N. Y. Supp. Where general agents of a surety
756, citing Lord v. Cronin, 154 N. Y. company appoint a district agent,
172, 47 N. E. 1088. and, without the company's require-
31. Bowers v. Bryan Lumber Co., ment, insert a clause that the bond
152 N'. C. 604, 68 S. E. 19. shall not be valid until signed by
Wafyer by agent of failure of the district agent, a bond signed by
obligee to give immediate notice of the general agents, under a letter
default of a building contractor, of attorney empowering them to
Boppart V. Illinois Surety Co., 140 sign all bonds, does not require the
Mo. App. 675, 126 S. W. 768. signature of the district agent as
32. Bowers v. Bryan Lumber Co., such, where he is the principal in
152 N. C. 604, 68 S. E. 19. the bond. Pacific National Bank v.
g 447 Suretyship and Guaranty. 460
Where a bond to secure the performance of a contract is de-
livered by the company to the principal without such contract at-
tached and the company knows it was to be attached and the bond
also provided therefor, by such act the surety company empowered
the principal to attach such contract to the bond.^^
§ 447. Surety Company and Agent — Written Authority. — In
determining the powers of an agent of a surety company, whose
authority is conferred upon him by a formal instrument the rule
applies that such an instrument delegating powers is ordinarily
subjected to strict interpretation and the authority is not to be
extended beyond that which is given in terms or which is neces-
sary to carry into effect that which is expressly given.^^
In a case in New York it is decided that a surety company
which has appointed an agent '^ to execute and deliver and attach
the seal of the company to any and all bonds to be filed * * *
under the Liquor Tax Law," the bonds to be valid only when
signed by such agent, is entitled to his personal judgment in re-
Aetna Indemnity Co., 33 Wash. 428, judicial actions or proceedings in a
74 Pac. 590. certain locality does not confer au-
35. San Antonio Brewing Ass'n v. thority upon such agent to enter
Abbott Oil Co. (Tex. Civ. App. 1910), into an agreement with another per-
129 S. W. 373. son intending to go upon an of-
36. United States Fidelity & Guar- ficial bond that he should be liable
anty Co. v. McGinnis' Adm'r (Ky. C. only temporarily, and should be re-
A. 1912), 145 S. W. 1112; quoting leased from all liability upon the
from Craighead v. Peterson, 72 N. execution of a bond by the com-
Y. 279, 28 Am. Rep. 150, and holding pany.
that in the case where an agent A letter of attorney authorizing
acts under a power of attorney, an insurance agent to execute as
which is a recorded instrument, a attorney in fact all bonds guaran-
person dealing with him is charged teeing the fidelity of persons " and
with notice of his powers. the performance of contracts other
In this case it was decided that than insurance policies " is suffic-
authority so given by a surety com- iently broad to authorize a contract
pany to an agent to sign its name guaranteeing the repayment of
as surety, and execute, acknowl- money loaned by a bank for the
edge, justify upon, and deliver any purpose of completing a vessel. Pa-
and all stipulations, bonds and un- cific National Bank v. Aetna Indem-
dertakings given or required in any nity Co., 33 Wash. 428, 74 Pac. 590.
461 SuKETY Companies. §§ 448, 449
spect to issuing bonds and that he cannot delegate his power to a
clerk in his otHce.^^
§ 448. Notice to Company of Default — Provision as to Con-
strued — Waiver. — The condition in a surety company's bond re-
quiring notice to the surety of the principal's default is one to be
performed subsequent to loss or damage by reason of the default
and for which recovery is sought. It is not essential to the bind-
ing force of the contract while it is running prior to default.
Such a condition pertains to the remedy and^ though precedent
to the maintenance of an action, is not to be as strictly construed
as one involving the essence of the agreement. ^^
Failure to give written notice to a surety company of the breach
of the building contract in connection with which the bond was
given, has been held to be waived where it appeared that the
manager of the company's local office had knowledge of the true
situation and acquiesced in the course pursued by the obligee, it
being declared that his knowledge and acquiescence were those of
the company and that it had no right to encourage the obligee in
the belief that a forfeiture would not be invoked and then, when
it became too late for notice to be given, declare the contract for-
feited.^^
§ 449. Where Company Succeeds to Assets of Another Com-
pany, — A surety company which has absorbed all the assets and
assumed all the liabilities of another surety company and is in
all respects its corporate successor is liable for any liability in-
curred on the bond of the company which it has absorbed.*'^
37. Cullinan v. Bowker, 180 N. Y. been forfeited by the principal for
93, 72 N. E. 911, affirming 88 App. a violation of the Liquor Tax Law,
Div. 170, 84 N. Y. Supp. 696, and the company is not liable on the
holding, three judges dissenting, bond, although upon his return and
that where a county treasurer, with in ignorance of such forfeiture the
knowledge of the agent's authority agent affixed his signature to the
and in his absence, accepts a bond bond.
issued by his clerk, who had been 38. Van Buren County v. Ameri-
authorized so to do, and who stated can Surety Co., 137 Iowa 490, 115 N.
that the agent would sign it upon W. 24.
his return, and in the meantime the 39. Rule v. Anderson, 160 Mo.
certificate on the application for App. 347, 142 S. W. 348.
which the bond had been issued had 40. Manny v. National Surety Co.,
103 Mo. App. 716, 78 S. W. 69.
TABLE OF CASES.
Abbott T. Brown, 131 111. 108- . .
Abbott V. Morrissette, 46 Minn.
10
Abbott V. Zeigler, 9 Ind. 511 .. .
Alrams v. Pomeroy, 13 111. 133.
Absbire v. Howe, 23 Ky. Law
Rep. 1854
Acers' v. Curtis, 68 Tex. 423...
197,
Ackerman's Appeal, 106 Pa,
St. 1
.Ackley v. Parmenter, 98 N. Y.
425
Ackley v. Skinner, 65 Misc. R.
(N. Y.) 142
Acorn Brass Mfg. Co. v. Gilmore,
142 111. App. 567 340, 348,
Adair v. Campbell, 4 Bibb.
(Ky.) 13
Adams v Flanagan, 36 Vt. 400. .
Adams v. Gregg, 2 Starkie 53 . . .
Adams v. Hayes, 120 N. C. 383. .
Adams V. Huggins, 78 Mo. App.
219 341,
Adams v, Huggins, 73 Mo. App.
140
Adams v. Jones, 12 Pet. (U. S.)
207
Adams v. Kellogg, 63 Mich. 616.
Adams v. People, 12 111. App.
380
Adamd v. Way, 32 Conn. 160
Adle V. Metoyer, 1 La. Ann. 254.
Adler v. State, 35 Ark. 517
Advance Thresher Co. v. Hogan,
74 Ohio St. 307. . 67a,
Aerne v. Gostlow (Ore. 1911),
118 Pac. 277
Aetna Indemnity Co. v. City of
Little Rock. 89 Ark. 95
Sec.
339
112
27
69
87
196
198
167
379
387
356
406
199
147
200
384
347
355
54
423
117
171
414
153
456
100
Seo.
Aetna Indemnity Co. v, George
A. Fuller Co., Ill Md. 321 112e
Aetna Indemnity Co. v. Ryan,
53 Misc. R. (N. Y.) 614 445
Aetna Indemnity Co. v. Schroe-
der, 10 N. D. 110 141
Aetna Indemnity Co. v. Town of
Comer (Ga. 1911), 70 S. E.
676 144a
Aetna Indemnity Co. v. Walters,
110 Md. 673 59, 67, 101, 112c
Aetna Ins. Co. v. Fowler, 108
Mich. 557 127
Aetna Life Ck). v. Middleport,
124 U. S. 534 157, 191
Aetna Life Ins. Co. v. Bablett,
18 Wis. 668 287
Aetna National Bank v. Ins. Co.,
50 Conn. 167 28
Agawam Bank v. Sears, 4 Gray
(Mass.) 95 106
Agawam Bank v. Strever, 18
N. Y. 502 87, 367
Aiken v. Barkley, 2 Spear. 747. . 206
Aiken v. Lang, Adm'r, 106 Ky.
652 346, 368
Aikenson v. Smith, 89 N. C. 72. . 271
Albany Co. v. Dorr, 25 Wend.
(N. Y.) 44 316
Alber v. Froelich, 39 Ohio St.
245 226
Albers Commission Co. v. Spen-
cer (Mo. 1911), 139 S. W. 321 222
Alcatraz Hall Ass'n v. United
States Fidelity & Guaranty
Co., 3 Cal. App. 338.112, 112a, 112e
Alder v. State, 35 Ark. 517 414
Alderman v. Roesel, 52 S. C. 162 239
Aldershaw v. King, 2 Hurl. &
N. 517 341
Alderson v. Menes, 16 Nev. 298. 194
(463)
464:
Table of Cases.
Sec.
Alderson's Adm'r v. Alderson, 53
W. Va. 388 19
Aldous V. Cornwell, L. R. 3 Q.
B. 573 110
Aldrich v. Ames, 9 Gray (Mass.)
76 382, 383, 395
Aldrich v, Blake, 137 Mass. 384 151
Alexander v. Bryan, 110 U. S.
414 242
Alexander v. Ison, 107 Ga. 745. 335
Alexandria Water Co. v. Na-
tional Surety Co., 225 Pa. St.
1 112d
Alford V. Baxter, 36 Vt. 158 145
Alger V. Alger, 83 App. Div. (N.
Y.) 168 363
Alger V. Scoville, 1 Gray (Mass. )
391 374, 386
Allegheny County Light Co. v.
Reinhold, 21 Pa. Co. Ct. R. 118 2
Allen V. Berryhill, 27 Iowa 531,
534 92, 135
Allen V. Commonwealth, 90 Va.
356 423
Allen V. Greenwood, 147 Wis.
626. ... 38
Allen V. Jaquish, 21 Wend. (N.
Y.) 628 295
Allen V. Kelly, 171 N. Y. 1 263
Allen V. Kelly, 55 App. Div. (N.
Y.) 454 263
Allen V. Kenning, 9 Ding. 618 . . 367
Allen V. Minor, 2 Call. 70 24
Allen V. National Surety Co.,
144 App. Div. (N. Y.) 509 224
Allen V. Rightmere, 20 Johns.
(N. Y.) 365 349
Allen V. State, 6 Blackf. (Ind.)
252 306
Allen V. State, 61 Ind. 268.. 260, SOS
Allen V. Wood, 2 Baxt. (Tenn.)
301 329
Allen County v. United States
Fidelity & Guaranty Co., 29
Ky. Law Rep. 356 112, 112d
Allerton v. Eldridge, 56 Iowa
709 21'3
Sec.
Allison V. Sutherlin, 50 Mo. 274. 158
Alschuler v. Schiff, 164 111. 298. 295
American Bonding Go. v. Loeb,
47 Wash. 447, 448 66
American Bonding Co. v. Ot-
tumua. City of, 137 Fed. 572. . 30
American Bonding Co. v. Pueblo
Ins. Co., 150 Fed. 17 67, 100
111, 130
American Bonding & Trust Co.
V. Blount, 23 Ky. Law Rep.
1632 301, 311
American Brewing Co., 70 App.
Div. (N. Y.) 511 l'(4
American Dist. Tel. Co. v. Len-
nig, 13 Pa. St. 594 69
American Exch. Nat. Bank v.
Goubert, 67 Misc. R. (N. Y.)
602 232
American Radiator Co. v. Ameri-
can Bonding & Trust Co., 72
Neb. 100 51
American Surety Co. v. Boyle,
65 Ohio St. 486 67, 231
American Surety Co. v. Law-
renceville Cement Co. (U. S.
C. C), 110 Fed. 717 141, 151
American Surety Co. v. Pauly,
170 U. S. 133 443
American Surety Co. v. Pratt,
67 Kan. 294 243
American Surety Co. v. San An-
tonio L. & T. Co. (Civ. App.),
98 S. W. 387 443
American Surety Co. v. Shallen-
berger (U. S. C. C. 1910), 183
Fed. 636 439
American Surety Co. of New
York V. Koerr, 49 Tex. Civ.
App. 93 67, 224
American Tel. Co. v. Lennig, 139
Pa. St. 595 80
Ames V. Armstrong, 106 Mass. 15 23
Ames A. Colburn, 11 Gray
(Mass.) 390 105
Ames V. Dorrok, 76 Miss. 187.. 259
Ames V. Jackson, 115 Mass. 512. 372
Tabi^ of Cases.
465
Sec.
Ames V. Maclay, 14 Iowa 281. .. 95
Ames V. Williams, 74 Wis. 404. 259
Amherst Bank v. Root, 2 Met.
(Mass.) 522. . . 282, 291, 298
Ammons v. People, 11 111. 6 260
Ammons v. Whitehead, 31 Miss.
99 228
Amy V. Supervisors, 11 Wall.
(U. S.) 136 337
Anderson v. Anderson, 150 Iowa
665 367
Anderson v. Blair, 118 Ga. 211.. 337
Anderson v. Blakeley, 2 Watts.
& S. 237 354
Anderson v. Brumly, 115 Ga. 644 3o9
Anderson v. Johett, 14 La. Ann.
624 333
Anderson v. Langdon, 1 Wheat. (U.
S.) 85 298
Anderson v. National Surety
Co., 196 Pa. St. 288 446
Anderson v. Norvill, 10 111. App.
240 36
Anderson v. Spencer, 72 Ind.
315 380, 382, 383, 416
Anderson v. Thompson, 10 Bush
(Ky.) 132 310
Anderson v. Warne, 71 111. 20.. 365
Andre v. Fitzhugh, 18 Mich. 93. 214
Andrews v. Beall, 9 Cow. (N.
y.) 693 88
Andrews v. Ford, 106 Ala. 173. . 277
Andrews v. Morrett, 53 Me. 589. 43
Andrews v. Planters Bank, 7
Sm. & M. 192 26
Andrews v. Tedford, 37 Iowa 315 339
Andrews & Co. v. Stowers, Fur-
niture (Ala. 1910), 52 So. 316. 356
Angero v. Keen, 1 Mees. & W.
390 71
Angle V. Insurance Co., 92 U. S.
330 57
Anthony v. Fritts, 45 N. J. L.
1 170, m
Anthony v. Hcvman, 14 Kan.
494 12
Sec.
Antisdel v. Williamson, 165 N.
Y. 372 363
Antisdel v. Williamson, 37 App,
Div. (N. Y.) 167 341
Anvil Gold Mining Co. t. Hoxsie,
125 Fed. 724 222
Apgar V. Hiler, 58 N. H. 523 382
Apgar V. Hiler, 24 N. J. L. 812. . 383
Apgar V. Wilson, 24 N. J. L. 812. 183
Appleby v. Robinson, 44 Barb.
(N. Y.) 316 412
Appleton V. Bascom, 3 Mete.
(Ky.) 169 11, 35, 176, 177, 187
Appleton V. Parker, 15 Gray
(Mass.) 173 122
Arcedeckna, In re, 24 Ch. D.
709 198, 205
Archer v. Commonwealth, 10
Gratt. (Va. 627 431
Archer v. Douglass, 5 Denio 307 171
Archer v. Hale, 4 Bing. 464 241
Archer v. Noble, 3 Me. 418 324
Ardesco Oil Co. v. Oil Co., 66 Pa.
St. 375 193
Arents v. Commonwealth, 18
Gratt. (Va.) 750 339, 357
Arkansas Valley Town & Land
Co. v. Lincoln, 56 Kan. 145... 30
Arlington v. Merricke, 2 Sand.
411 284
Armitage v. Pulmer, 37 N. Y. 494 209
Armstrong v. Canal Co., 14 Utah
450 341
Armstrong v. Gilchrist, 2 Johns.
Cas. (N. Y.) 429 175
Armstrong v. Harsham, 61 Ind.
52 206
Armstrong v. Toler, 11 Wheat.
(IT. S.) 258 38
Arnold v. Bryant, 8 Bush (Ky.)
668 347
Arnot V. Railroad Co., 67 N. Y.
315 31
Arnott V. Symonds, 85 Pa. St. 99 347
Arquette v. Marshall County, 75
Iowa 191 437
Asher v. Cabell, 50 Fed. 818 ."20
466
Table of Cases.
Sec.
Ashland Bank v. Jones, 16 Ohio
St. 145 357
Askins v. Commonwealth, 1 Duv.
(Ky.) 275 421
Aspinwall v. Sacchi, 57 N. Y. 331 3
203
Atkins V. Tredgold, 2 B. & C. 23. 371
Atkinson v. Smith, 89 N. C. 72. . 272
Atlanta v. Turner, 8 Ga. App.
213 42
Atlantic, etc., Tel. Co. v. Barnes,
64 N. Y. 385 127, 287, 290, 292
Atlantic Trust & Deposit Co. v,
Unon Trust & Title Corpora-
tion, 110 Va. 286 114, 126
Atlas Bank v. Anthony, 18 Pick.
(Mass.) 238 291
Atlas Bank v. Brownell, 9 R. I.
168 88, 142, 287, 288, 291, 293
Atterstein v. Alpaugh, 9 Neb. 237 75
Atwater v. Farthing, 118 N. C.
388 203, 206
Atwood V. Lester, 20 R. I.
660 339, 347
Atwood V. Vincent, 17 Conn. 575 152
Auchawpaugh v. Schmidt, 70
Iowa 642 173
Alierback v. Rogin, 40 Misc. R.
(N. Y.) 605 180
Australian Joint Stock Bank v.
Bailey (1899), App. Cas.
396 59, 66, 67, 299
Avant V, State, 33 Tex. Crim. 312 419
Avery v. Rowell, 59 Wis. 82 26
Ayers v. Dixon, 78 N. Y. 318 11
Ayers v. Hite (Va.), 34 S. E. 44. 272
Ayers v. Milony, 53 Mo 51
Ayrault v. Bank, 47 N. Y. 570. . . . 336
B.
Babb V. Oakley, 8 Cal. 94 421
Babcock, In re, 3 Story (U. S.)
393, 399. ... 15, 145
Babcock v. Bryant, 12 Pick. (N.
Y.) 133 348
Babcock v. Hubbard, 2 Conn. 536 23
Babka v. People, 73 111. App. 240 325
Sec.
Bachelder v. Fiske 17 Mass.
464 194a
Backhouse v. Hall, 6 B. & S. 507 362
Backley v. Miller, 96 Ark. 379.. 67a
Bacon v. Fairman, 6 Conn. 121. . 252
Bacon v. Montauk Brewing Co.,
130 App. Div. (N. Y.) 737 30
Badely v. Bank, 34 Ch. Div. 536. 184
Badham v. Jones, 64 N. C. 655.. 333
Baehmer v. Schuylkill, 49 Pa.
St. 452 61
Bagles v. Wallace, 56 Hun (N.
Y.) 428 381
Bagley v. Cohn, 121 Cal. 604 359
Baglin v. Title Guaranty & Surety
Co., (U. S. C. C.) 166 Fed.
356 122, 141
Bagnell v. American Surety Co.,
102 Mo. App. 707 138
Bailey v. Adams, 10 N. H. 162. . 46
Bailey v. Croft, 4 Taunt. 611 40
Bailey v. Miller (Ind. App.
1910), 91 N. E. 24 339
Bailey v. Rosenthal, 56 Mo. 385. 228
Bailey v. State, 71 Ark. 498 422
Bailey v. Warner, 118 Fed. 395. . 323
Bailey Loan Co. v. Seward, 9 S.
Dak. 326 4
Baker «& Berry Hill Mineral
Spring, 109 Va. 776. 389
Baker v. Bradley, 42 N. Y. 316. . 341
Baker v. Briggs, 8 Pick. (Mass.)
122 130, 148, 170
Baker v. Bryan, 64 Iowa 562 112
Baker v. Butler, 41 Ohio St. 519. 336
Baker v. Fidelity & Deposit Co.
of Maryland, 24 Ky. Law Rep.
2196 323
Baker v. Frellson, 32 La. Ann.
822 233
Baker v. Gilson, 18 Neb. 89 20
Baker v. Kelly, 41 Miss. 696 349
Baker v. Kennett, 54 Mo. 82 135
Baker v. Robinson, 63 N. C. 191. 347
Baker v. State, 21 Tex. Cr. App.
359 434
Table of Cases.
467
Sec.
Baker v. Walker, 14 Mees. & W.
465 122
Baker City v. Murphy, 30 Ore.
405 305
Baker County v. Huntington, 46
Ore. 275 51
Baldwin v. Bank, 1 La. Ann. 560. 336
Baldwin v. Fleming, 90 Ind. 177. 10
199
Baldwin Coal Co. v. Dans, 15
Colo. App. 371 381
Balderstone v. Rubber Co., 18
R. I. S88 394
Ball V. Chancellor, 47 N. J. L.
125 273
Ballane v. Ebsworth. 3 Camp.
52, 55 79, 83
Ballard v. Logan (W. Va. 1911),
70 S. E. 558 232
Ballston v. Wood, 15 Iowa 160. . ■ 8
Bamford v. lies, 3 Exch. 280.. 286
297
Bandler v. Bradley, 110 Minn.
66 93a, 171
Bangs V. Strong, 4 N. Y. 315. 64, 130
Bangs V. Strong, 10 Paige (N.
Y.) 11 95
Bank v. Alden, 129 U. S. 372 26
Bank v. Anderson Bros. Ry. &
Min. Co., 65 Iowa 692.126, 140, 141
Bank v. Ayers, 28 S. D. 216 356
Bank v. Barrington, 2 P. & W.
(Pa.) 27 72, 297
Bank v. Brooks, 64 Kan. 285 113
Bank v. Brown, 46 N. Y. 170 19
Bank v. Clare, 76 Tex. 47 22
Bank v. Coster, 3 N. Y. 202 40
Bank v. Creditors, 86 N. C. 323. 271
272
Bank v. Cumberland Lumber
Co., 100 Tenn. 479 19
Bank v. Eyre, 107 Iowa 13 10
Bank v. Fidelity & Deposit Co.,
128 N. C. 366 443
Bank v. Grifford, 79 Iowa 300. 130
132
Sec.
Bank v. Hardesty, 28 Ky. Law
Rep. 1285 , 85
Bank v. Haskell, 51 N. H. 116.51, 147
Bank v. Hock, 89 Pa. St. 324 29
Bank v. Hyde, 131 Mass. 77 55
102, 104
Bank V. Jeff's, 15 Wash. 231 171
Bank v. Johnson, 9 Ala. 622... 118
Bank v. Kirkwood, 172 111. 563. . 21
Bank v. Layne, 101 Tenn. 45 210
Bank v. Lorrlmer, 76 Ark. 245 . 152
157
Bank v. Lumber Co., 100 Tenn.
479 19
Bank v. Parrott, 77 Ind. 1 356
Bank v. Potaces, 10 Watts (Pa.)
152 158
Bank v. Potius, 10 Watts 148. . . 325
Bank v. Railway Co., 65 Iowa 692 126
Bank v. Root, 2 Mete. (Mass.),
522 282, 291, 298
Bank v Sinclair, 60 N. H. 100.. 348
Bank v. Sloo, 10 La. Ann. 543. . 355
Bank v. Smith, 12 Allen (Mass.)
243 77, 183, 319
Bank v. State, 62 Md. 88 134
Bank v. Union Packing Co., 60
Wash. 456 348
Bank v. Whitman, 66 111. 331 35
Bank v. Wollaston, 3 Harr.
(Del.) 90 72, 286
Banning v. Hall, 70 Minn. 89... 89
Banor v. Macdonald, 3 H. L. Cas.
226 286
Bantley v. Baker, 61 Neb. 92.. 329
332, 333
Barber v. Burrows, 51 Cal. 404. 55
Barber v. Ruggles, 27 Ky. Law
Rep. 1077 51
Barclay v. Lucas, 1 Tenn. R. 291 84
Barela v. Tootle, 29 Colo. 55.224, 225
Bargate v. Shortridge, 5 H. L.
Cas. 297 28
Barge v. Van Der Horek, 54
Minn. 497 208
Barker v. McClelland (Ind. App.
1912), 98 N. E. 300 67
468
Table of Cases.
Barker v. Parker, 28 Ark. 390. .
Barker v. Scudder, 56 Mo. 272. .
Sec.
38
353
390
Barker v. Wheeler, 60 Neb. 470. 301
Barker Land & Improvement Co.
V. Ayes, 43 Ind. App. 513 66
Barksdale v. Butler, 6 Lea
(Tenn.) 450 65, 243
Barman v. Carhartt, 10 Mich.
338. . . . . 359
Barnes V. Beyers, 34 W. Va. 303. 21
Barnes v. Century Savings Bank,
149 Iowa 367 126, 141
Barnes v. Mott, 64 N. Y. 397 11
Barnes v. Sammons, 128 Ind.
596 145, 146
Barnes v. Van Keuren, 31 Neb.
165 36, 41, 42
Barnes v. Whitaker, 45 Wis. 204 334
Barnes Cycle Co. v. Schofield,
111 Ga. 880. . 348
Barney v. Babcock's Estate, 115
Wis. 409 243
Barney v. Clark, 46 N. H. 514. .. 147
Barney v. Grover, 28 Vt. 391 162
Barr v. Mitchell, 7 Ore. 346 347
Barrett v. Bass, 105 Ga. 421 132
Barrett v. Davis, 104 Mo. 549-. 113
Barrett v. May, 2 Bailey L. 1 . . . 349
Barrett-Hicks Co. v. Glas, 9 Cal.
App. 491 100, 112a
Barricklow v. Stewart, Execu-
tor, 31 Ind. App. 441 34d
Barrington v. Bank, 14 Serg. &
R. 405 285
Barrow v. Shields, 13 La. Ann.
57 145
Barry v. Screwmen's Associa-
tion, 67 Tex. 250. 70
Barry v. Rawson, 12 N. Y. 462. . 194
210
Bartels v. People, 152 111. 557.. 333
Barth v. Graf. 101 Wis. 27.. 180, 182
183, 195, 382, 383
Bartholomew v. First Nat. Bank,
57 Kan. 594 152, 155, 156, 157
Bartlett v. Atty.-Gen., Park 277 . 313
Sec.
Bartlett y. Board, 59 111. 364... 56
Bartlett v. Cunningham, 85 111.
22 145
Bartlett v. Illinois Surety Co.,
142 Iowa 538... 100, 101, 112a, 134
Bartlett v. Illinois Surety Co.,
112 Minn. 462 112b
Bartlett v. Pitman, 106 Me. 117. 114
Bartlett v. Wheeler, 195 111. 445. 69
Bartling v. State, 67 Neb. 637. .. 423
Barto V. Phillips, 28 Wash. 482. . 374
Barton v. State, 24 Tex. 250 436
Bartow v. Haltom, 93 Ark. *631. 35
Baskin v. Andrews, 53 Hun (N.
Y.) 95 86
Bassett v. Fidelity & Deposit
Co., 184 Mass. 210 252, 253
Bassett v. Hughes, 43 Wis. 319. . 12
Bassett v. O'Neil Coal & Coke
Co., 140 Ky. 346 35, 52
Bassett v. Perkins, 65 Misc. (N.
Y.) 103 357
Basshears v. Rowe, 46 Mo. 54. . . 341
Batchelder v. White, 80 Va. 103 . 55
100
Batcheldor v. Jennings, 83 111.
App. 569 364
Batchelor v. Bank, 78 Ky. 435.. 291
Bates V. Bank, 7 Ark. 394 146
Bates V. Smith, 23 Ky. Law Rep.
2134 325
Bathwell v. Sheffield, 8 Ga. 569. 327
Bau V. Mackey, 14^ U. S. 220 113
Baucus V. Barr, 45 Hun (N. Y.)
582 251
Baucus V. Stover, 89 N. Y. 1 252
Bauer v. Gray, 18 Mo. App. 164. 192
Baum V. Lyman, 72 Miss. 932. . . 260
Baumgartner v. McKinnon (Ga.
App. 1912), 73 S. E. 518.97,98, 134
Bauschard Co. v. Fidelity & Cas-
ualty Co. of New York, 21 Pa.
Super. Ct. 370 66, 93a, 100, 134
Baut V. Donly, 160 Ind. 670 122
Bay V. Tallmadge, 5 Johns. Ch.
(N. Y.) 305 95
Bay V. Williams, 112 III. 91 13
Table of Cashes.
469
Sec.
Bayless v. Baylesa, 4 Cold,
(Tenn.) 359 250
Bayle v. Ins. Co., 6 Hill (N. Y.)
476 298
Balyis v. Wallace, 56 Hun (N,
Y.) 428 381
Bayne v. Bank, 52 Pa. St. 343. . . 291
Bayne v. Cusinmano, 50 La. Ann.
361 2
Bays V. Conner, 105 Ind. 415... 20
Bay Shore Lumber Co. v. Dono-
van, 149 Ala. 232 66
Baxter v. Hurlburt, 15 Pa.
Super. Ct. 541 377
Baxter County Bank v. Ozark,
98 Ark. 143 65
Beach v. Doynton, 26 Vt. 725 162
Beakes v. Da Cunha, 126 N. Y.
293 341
Beal V. Brown, 13 Allen (Mass.)
114 372
Bealer v. Mayor, 19 C. B. (N. S.)
76 116
Bean v. Parker, 17 Mass. 591,
603 52, 54, 411
Beard v. Roth, 35 Fed. 397 248
Beard v. Sweeney, 1 S. D. 642. . 54
Bearden v. State, 89 Ala. 21.402, 421
Beardsley v. Hawes, 71 Conn.
39 4, 340, 349, 350, 359
Beaty v. Irwin, 18 Ind. 131 390
Beaver v. Beaver, 23 Pa. St. 167. 149
Beaver v. Slanker, 94 111. 175.. 154
191
Bebee v. Moore, 3 McLean (U.
S.) 387 36
Bechervaise v. Lewis, L. R. 7
C. P. 372 144
Becker v. Krank, 75 App. Div.
(N. Y.) 191 374
Becker v. Northway, 44 Minn.
61 144
Becker v. People, 164 111. 267.. 229
Beconty v. Sapperstein (Ind. App.
1910), 92 N. E. 551 240
Beech Grove Improvement Co.
V. Title Guaranty & Surety
Sec.
Co. (Ind. App. 1912), 98 N. E.
373 67
Beele v. Finnell, 85 Mo. App. 438 381
Beers v. Haughton, 1 McLean
(U. S. C. C.) 226 412
Beggs V. Teackle, 5 Binn. (Pa.)
332 408
Belden v. Hurlbut, 94 Wis. 562. . 51
Belding v. State, 25 Ark. 315.. 424
426. 431
Belknap v. Bender, 75 N. Y. 466 379
Belknap v. Davis, 21 Vt. 409 408
Bell V. Boyd, 76 Tex. 133.. 8, 37, 204
Bell V. Bruen, 1 How. (U. S.) 169 35&
Bell V. Campbell (Civ. App.
1912), 143 S. W. 953 67a, 152
Bell V. Morrison, 1 Pet. (U. S.)
351 90
Bell V. People, 94 111. 230 255
Bell V. Pierce, 146 Mass. 58 405
Bell V. Walker, 54 Neb. 222. .134, 226
Bellaire v. Ebsworth, 3 Camp.
55 83, 356
Belleville Sav. Bank v. Born-
man, 124 111. 200 129, 350
Bellinger v. Thompson, 26 Ore.
320 247
Belloni v. Freeborn, 63 N. Y.
383 67, 356
Belond v. Guy, 20 Wash. 160... 415
Beltine C. & Mfg. Co. v. Zulfer,
155 111. App. 308 377
Bemis v. Gannett, 8 Neb. 236 233
Benchfield v. Haffey, 34 Kan.
42 183, 319
Benedict v. Jones, 129 N. C. 475. 119
Benjamin v. Ver Nooy, 36 App.
Div. (N. Y.) 581 1, 49, 171
Benne v. Schnecko, 100 Mo. 250. Ib3
Bennett v. Buchanan, 3 Ind. 47. 180
Bennett v. Draper, 139 N. Y. 272 356
Bennett v, Graham, 71 Ga. 211. 65
243
Bennett v. State, 58 Miss. 557.. 328
Bennett v. Taylor, 43 Tex. Civ.
App. 30 128
Benny v. Crane, 80 111. 244 348
470
Table of Cases.
Sec.
Benson v. Phipps, 87 Tex. 578. . 46
Benthal v. Judkins, 13 Met. 265. 347
Benton v. Martin, 52 N. Y. 570. . 129
Benton County Sav. Bank of
Norway v. Boddicker, 105
Iowa 548 50, 51, 52
Berg V. Radcliff, 6 Johns. (N.
Y.) 302 6, 68
Berg V. Spitz, 87 App. Div. (N.
Y.) 602 377, 397, 398
Bergen v. Williams, 4 McLean,
125 223
Bergevin v. Wood, 11 Cal. App.
643 66
Berghaus v. Alter, 9 Watts 386. 97
Berkhead v. Brown, 5 Hill (N.
Y.) 34 103
Berlin National Bank v. Guay
(N. H. 1911), 81 Atl. 475 123
Berman v. Elm Loan & Savings
Ass'n, 114 Md. 191.. 93a, 113
114, 121
Berman v. Shelby, 93 Ark.
472 100, 111
Bernhardt v. Button, 146 N. C.
206 74
Bernheimer v. Charak, 170 Mass.
179 131, 216
:Berridge v. Berridge, 44 Ch. Div.
168 208
Berry v. Pullen, 69 Me. 101 375
Berryman v. Manker, 56 Iowa
50 110
Besinger v. Wren, 100 Pa. St.
500 72, 80
Bessemer Coke Co. v. Gleason,
223 Pa. St. 84 66
Besshears v. Rowe, 46 Mo. 501. . 384
Bessinger v. Dickerson, 20 Iowa
260 334
Best Brewing Co. v. Klassen,
185 111. 37 28, 30
Bester v. Walker, 4 Gil. (111.) 3. 359
Beverldge v. Chatlain, 1 111.
App. 594 405
Bickford v. Gibbs, 8 Cush.
(Mass.) 154 39, 341, 342
Sec.
Biglane v. Hicks (Miss, 1903),
33 So. 413 377
Bill v. Barker, 16 Gray (Mass.)
62 83
Bllings T. Lafferty, 31 111. 318.. 333
Billings v. Teeling, 40 Iowa 607. 332
Bing V. Clarkson, 2 Barn. & Cr.
14 122
Bird V. Mitchell, 101 Ga. 46. .243, 246
Birdsall v. Heacock, 32 Ohio St.
177 340, 356
Birkmyr v. Darnell, Salk, 27 . . 374
Bisbee v. Gleason, 21 Neb. 534. . 264
Bischoff V. Engel, 10 App. Div.
(N. Y.) 240 242
Biscoe V. Jenkins, 5 Eng. 108. . . 371
Bishop v. Earl, 17 Wend. (N.
Y.) 316 . . . 411
Bishop v. Eaton, 161 Mass. 496. 348
355
Bishop V. Freeman, 42 Mich. 533 67
Bishop V. State, 16 Ohio St. 419. 426
Bissell V. Lewis, 4 Mich. 450... 370
Bissell V. Saxton, 66 N. Y. 55,
60 273, 276, 301, 302
Bissig V. Britton, 59 Mo. 204 382
Bize V. Dickanson, 1 Term. R.
285 394
Bjoin V. Anglim, 97 Minn. 526.. 51
54
Black V. Bank, 149 Mass. 250. • . 164
Black V. Gentery, 119 N. C. 502. 272
Black V. McCarley's Ex'r, 31 Ky.
Law Rep. 1198 19, 171
Black V. Oblender, 135 Pa. St.
526 70
Black's Appeal, 83 Mich. 513... 361
Blackerbush v. Dorsett, 138 111.
167. . . . 236
Black Masonry ^ Contracting
Co. v. National Surety Co.
(Wash.) 1911), 112 Pac. 517. 93a
112©
Blackmore v. Granbery, 98
Tenn. 277 97
Black River Bank v. Page, 44 N.
Y. 453 132
Table of Cases.
471
Sec.
Blackstone Bank v. Hill, 10
Pick. (Mass.) 153 121
Blades v. Dewey, 136 N. C. 176. . 70
Blair v. Ins. Co., 10 Mo. 559.. 84, 285
Blake v. Traders' Nat. Bank,
149 Mass. 250 164
Blake v. Vesey (Tex. Civ. App.
1912), 143 S. W. 220 186
Blanchard v. Blanchard, 133
App. Div. (N. Y.) 937.174, 176, 372
Blanchard v. Blanchard, 61
Misc. R. (N. Y.) 497 174, 176
Blanding v. Wilson, 107 Iowa
46 364
Blanser v. Diehl, 95 Pa. St. 350. 261
Blasdell v. Erickson, 157 111.
App. 615 393
Blazer v. Brindy, 15 Ohio St. 57. 64
115
Bleeker v. Hyde, 3 McLean (U.
S.) 279 45
Block V. Dorman, 51 Mo. 31 90
Block's Appeal, 83 Mich. 513... 361
Bloom V. Helm, 53 Miss. 21 26
Bloom V. McGrath, 53 Miss. 249. 398
Bloxsom V. Williams, 3 B. & C.
233 48
Blue Island Brewing Co. v.
Fraatz, 123 111. App. 26 30
Blumenthal v. Moore, 106 Ga.
424 377, 384, 392, 396
Blumenthal v. Tibbits, 160 Ind.
70 374
Blydenburgh v. Bingham, 38 N.
Y. 371 137
Blythe v. People (Colo. App.),
66 Pac. 680 325
Boalt V. Brown, 13 Ohio St. 364. 107
361, 362
Board of Com'rs of St. Louis
County V. Bank of Duluth, 75
Minn. 174. . . 134
Board v. Branham, 57 Fed. 179. . 138
Board v. Cincinnati, etc., Co.,
128 Ind. 240 385
Board v. Jewell, 44 Minn. 427.. 316
Board v. Pabst, 70 Wis. 352 71
Sec.
Board v. Sweeney, 1 S. Dak.
642 52
Board v. Thompson, 33 Ohio St.
321 38
Boardman v. Hanna (U. S. C.
C), 164 Fed. 527 366
Boardman v. Paige, 11 N. H,
431, 437 172, 197
Boardman Tower v. Flagg, 70
Minn. 338 314
Board of Com'rs of Gibson
County V. Cincinnati Steam-
Heating Co., 128 Ind. 240 385
Board of Commissioners of
Davidson Co. v. Dorsett, 151
N. C. 307 194, 196, 205, 323
Board of Com'rs of Ramsey
County V. Elmund, 89 Minn. 56 301
Board of Com'rs of St. Louis
County V. Security Bank of
Duluth, 75 Minn. 174 134
Board of Education of Preston
Independent School Dist. No.
452 V. Robinson, 81 Minn. 305. 51
302
Board of Education of City of
St. Louis V. United States Fi-
delity & Guaranty Co., 155 Mo.
App. 109 67
Board of Education of St. Louis
V. United States Fidelity &
Guaranty Co. (Mo. App. 1911),
134 S. W. 118 174
Board of Supervisors of Mil-
waukee Co. v. Pabst, 70 Wis.
352 71
Board of — see Board.
Boardwall v. Paige, 11 N. H. 437 172
Bobo V. Vaiden, 20 S. C. 271 247
Bockenstedt v. Perkins, 73 Iowa
23 303
Boeff V. Rosenthal, 37 Misc. R.
(N. Y.) 852 377
Bogarth v. Breedlove, 39 Tex.
561 109
Boggs' V. Curtin, 10 Serg. & R.
211 187
472
Table of Cases.
Sec.
Boggs V. State, 14 Tex. 10 316
Boggs V. Teackle, 5 Binn. (Pa.)
332 412
Bohannon v. Combs, 12 B. Mon.
(Ky.) 563 73
Boig V. Stuhl, 4 Pa. Super. Ct.
52 292
Boise City v. Randall, 8 Ida.
119 235a
Bollman v. Pasealk, 22 Neb. 761 54
Bolton V. Gifford & Co., 45 Tex.
Civ. App. 140 77
Boltz, Estate of, 133 Pa. St. 77. 338
Bond V. Tarwell Co., 172 Fed.
58. . . . 348, 354, 370
Bones v. Aiken, 35 Iowa 534... 163
Bonham v. People, 102 111. 434. . 263
264
Bonnell v. Prince, 11 Tex. Civ.
App. 399 171
Bonner v. Nelson, 57 Ga. 433.. 114
Bonney v. Seely, 2 Wend. (N.
Y.) 481 181, 186
Boone Co. v. Jones, 54 Iowa 699 304
314
Boorstein v. Moffatt, 36 U. S.
81 374, 391
Booth V. Eighmie, 60 N. Y. 238. 397
Booth V. Storrs, 75 111. 438.. 126, 140
Boothby v. Giles, 68 Me. 160 337
Bootsman's Sav. Bank v. John-
son, 20 Mo. App. 316 14
Boppert V. Illinois Surety Co.,
140 Mo. App. 675.101, 112c, 443, 446
Borchsenius v. Canuston, 100
111. 82 377, 397
Borcigolupi v. Phoenix Bldg. &
Const. Co. (Cal. App. 1911),
112 Pac. 892 144a
Borden v. Gilbert, 13 Wis. 670.. 359
Border v. Peary, 20 Ark. 293... 371
Boreland v. Washington County,
20 Pa. St. 150 292
Borucerrski v. Hampden Real
Estate Trust, 210 Mass. 99... 112c
Boskin v. Andrews, 87 N. Y.
337 86
Sec.
Boskin V. Andrews, 53 Hun (N.
Y.) 95 86
Bosley v, Taylor, 5 Dana (Ky.)
157 197, 203, 209
Borman v. Akeley, 39 Mich. 710. 359
Bossert v. Striker, 142 App. Div.
(N. Y.) 5 3a
Boston, etc., C!o. v. Moore, 119
Mass. 435 354
Boston Heat-Manufactory Co. v.
Messinger, 2 Pick. (Mass.) 223 72
Boston Penny Sav. Bank v.
Bradford, 181 Mass. 199 130
Bostwick V. Van Voorhis, 91 N.
Y. 353. . . .87, 142, 287, 292, 293, 296
Botkin V. Kleinschmidt, 21
Mont. 1 265
Bottles V. Miller, 112 Ind. 584.. 91
Boughton V. Bank, 2 Barb. Ch.
458 95
Boulware v. Robinson, 8 Tex.
327 , 180, 195
Eowen v. Beck, 94 N. Y. 86 12
Bowen v. Burdick, 3 Clark (Pa.)
227 404
Bowen v. Haskin, 45 Miss. 183.. 202
Bower v. Jones, 26 S. D. 414.. 35
39, 126
Bowers v. Bryan Lumber Co.,
152 N. C. 604 446
Bowers v. Fleming, 67 Ind. 541. . 333
Bowmaker v. Moore, 7 Price
223 66, 414
Bowmaker v. Moore, 3 Price
214. . . . 414
Bowman v. Blodgett, 2 Met.
(Mass.) 308 406
Bowman Lumber Co. v. Pierson
(Civ. App. 1911), 139 S. W. 618 28
Bowne v. Bank, 45 N. J. L. 360,
361 288, 291, 294
Bowyer v. Hewitt, 2 Gratt. (Va.)
193 407
Boyce v. Murphy, 91 Ind. 1 399
Boyd v. Agricultural Ins. Co., 20
Colo. App. 28 45
Boyd V. Beville, 91 Tex. 439 178
Table of Cases.
473
Sec.
Boyd V. Boyd, 1 Watts 365 23
Boyd V. Commonwealth, 36 Pa.
St. 355 258
Boy den v. United States, 13
Wall. (U. S.) 17 316
Boyle V. St. John, 28 Hun (N.
Y.) 454 249, 258, 267
Boynton v. Phelps, 52 111. 210. 100
233
Boynton v. Robb, 22 111. 525 233
Brackebush v. Dorsett, 138 111.
167 233, 236
Brackett v. Rich, 23 Minn. 485. . 353
Bradbury v. Morgan, 1 H. & C.
249 346
Bradenburg v. Flynn, 12 B. Mon.
(Ky.) 397 73, 168
Bradford v. Cosey, 5 Barb. (N.
Y.) 462 16
Bradford v. Hubbard, 8 Pick.
(Mass.) 155 130
Bradley v. Burwell, 3 Denio 65. 86
Bradley v. Hooker, 175 Mass. 142 238
Bradley v. Richardson, 23 Vt.
720 394
Bradshaw v. Cockran, 91 Mo.
App. 294 381
Bragg V. Patterson, 85 Ala. 233. 160
163, 193
Bragg V. Shaw, 49 Cal. 131 138
Bragg V. Shaw, 86 111. 78 77
Bray v. State, 78 Ind. 68 59
Braiden v. Mercer, 44 Ohio St.
339 265
Brainard v. Jones, 18 N. Y. 35. . 269
Brainard v. Reynolds, 36 Vt. 614 359
Braman v. Blanchard, 4 Wend.
(N. Y.) 435 197
Braman v. Russell, 20 Vt. 205 • • 382
383
Bramble v. Ward, 40 Ohio St.
267 35, 89
Branch Bank v. James, 9 Ala. 949 171
Brand v. Whelan, 18 111. App. 186 383
Brandcroft v. Abbott, 3 Allen
(Mass.) 524 190
Sec.
Brandenburg v, Flynn, 12 B.
Mon. (Ky.) 39 73, 168
Branderbocker v. Lowell, 32
Barb. (N. Y.) 23 97
Brandon v. Brandon, 3 De G. &
J. 524 273
Brandrup v. Empire State
Surety Co., Ill Minn. 376,
112c, 112d, 442. 443
Branger v. Butterrick, 30 Wis.
153 27
Braugh v. Griffith, lo Iowa 26.. 164
Braunstein v. American Bond-
ing & Trust Co., 84 N. Y. Supp.
982 222
Braxton v. Candler, 112 Ga. 459. 433
Bray v. State, 78 Ind. 68 266
Braynt v. Budisell, 4 Heisk.
(Tenn.) 656 14
Brazier v. Clark, 5 Pick. (Mass.)
96 23, 249, 253
Breed v. Hillhouse, 7 Conn. 523. 44
Brengle v. Bushey, 40 Md. 141. . 123
Brettel V. Williams, 4 Exch. 623. 26
Brewer v. State, 6 Lea 198 419
Brewer v. Thorp, 36 Ala. 9 82
Brewster v. Baker, 37 Ind. 260. 37
Brewster v. Silence, 8 N. Y. 207. 347
Brick V. Banking Co., 37 N. J.
L. 307 152
Bridges v. Blake, 106 Ind. 332.. 36
Briggs V. Downing, 48 Iowa 550. 36
Briggs V. Hinton, 14 Lea (Tenn.)
283 ...194a
Briggs V. Latham, 36 Kan. 205 35
342, 357
Bright V, McKnight, 1 Sneed
(Tenn.) 164 356
Brill V. Horle, 53 Wis. 537 20
Brill Co. V. Norton, & T. St. R.
Co., 189 Mass. 431 30
Brillion Lumber Co. v. Barnard,
131 Wis. 284 49, 126, 287
Brisindine v. Martin, 1 Ired.
(N. C.) 286 180
Bristol V. Graff, 79 App. Div.
(N. Y.) 426 411
474
Table of Casis.
Sec.
Britchett v. People, 1 Gil. 525.. 35
Briton v. Fort Worth, 78 Tex.
227 310, 314
Britton v. Dierker, 46 Mo. 592.. 102
Britton v. Nicolls, 104 U. S. 766. 336
Brobst V. Killen, 16 Ohio St. 382 328
Brock V. Hopkins, 5 Neb. 231. • . 333
Brockett v. Martin, 11 Kan. 378. 334
Brockway v. Petted, 79 Mich.
620 59
Brooking v. Bank, 83 Ky. 431- • • 148
Brooks V. Brooks, 12 Gill. & J.
(Md.) 306 68
Brooks V. Governor, 17 Ala. 806 320
Brooks V. Whitmore, 142 Mass.
399 209, 260
Bross V. CJommonwealth, 71 Pa.
St. 262 436
Brough's Estate, 71 Pa. St. 460. 157
Brown v. Beach, 96 Pa. St. 482. . 163
Brown v. Brown, 47 Mo. 130 341
Brown v. Chambers, 63 Tex. 131 131
Brown v. Chicago, R. I. & P. Ry.
Co., 76 Neb. 792 93a
Brown v. Davenport, 76 Ga. 799 126
Brown v. First National Bank,
112 Fed. 901 149
Brown v. Howe, 3 Allen (Mass.)
528 411
Brown v. Kortz, 37 Iowa 239. .. 397
Brown v. Lattimore, 17 Cal. 93. 72
Brown v. Lester, 13 Sm. & M.
(Miss.) 392 . . 333
Brown v. Mason, 170 N. Y. 584. . 18
361
Brown v. Mason, 55 App. Div.
(N. Y.) 395 18, 361
Brown v. Mason, 55 App. Div.
(N. Y.) 395 18
Brown v. Northwestern Mutual
Life Ins. Co., 119 Fed. 148. .. . 224
Brown v. People, 26 111. 28 426
Brown v. Ray, 18 N. H. 102 208
Brown v. State, 23 Kan. 235 247
Brown v. Title Guaranty &
Surety Co., 232 Pa. St. 337.101, 443
Sec.
Brown v. United States, 152 Fed.
984 66
Brown v, Vermont Mutual Fire
Ins. Co., 83 Vt. 161 93a
Brown v. Weaver, 76 Miss. 7 326
Browne v. Bank, 45 N. J. L. 360. 294
Browne v. Lee, 6 Barn, and C.
689 198
Brownell v. Winnie, 29 N. Y.
400 110
Browning v. Hewitt, 61 Ind.
425 347
Brownlee v. Lowe, 117 Ind.
420 36
Brownson v. Marsh, 131 Mich.
35 194
Brubaker v. Okeson, 36 Pa. St.
519 114, 147
Bruce v. Laing (Civ. App. 1901),
64 S. W. 1019 128
Bruce v. United States, 17 How.
(U. S.) 437. 59
Bruce Co. v. Lambour, 123 La.
969. ... 45, 194
Bruegge v. Bedard, 89 Mo. App.
543 117
Bruen v. Gillet, 115 N. Y. 10. • • 23
Brunott v. McKee, 6 Watts & S
513 324
Brunswick v. Snow, 73 Me. 179. 337
Bryan v. Henderson, 88 Tenn.
23 20
Bryan v. Kelly, 85 Ala. 569 322
Bryan v. McDonald, 15 Lea
(Tenn.) 581 198
Bryant v. Eastman, 7 Cush.
(Mass.) Ill 347
Bryant v. Kinyon, 127 Mich. 152 408
Bryant v. Smith, 10 Cush.
(Mass.) 171. . . . 178
Bryant v. Stout, 16 Ind. App.
380 348
Buchanan v. Clark, 10 Gratt.
164 20
Buck V. De Rivera, 53 Hun (N.
Y.) 367. . . . 362
Table of Cases.
475
Sec.
Bucklen v. Huff, 53 Ind. 74. 55, 102
Buckman v. Ruggles, 15 Mass.
180 304
Buckner t. Stewart, 34 Ala. 529 194a
Buel V. Gorden, 6 Johns. (N. Y.)
126 408
Buell V. Burlingame, 11 Colo.
164 211
Buffingham v. Smith, 58 Ga.
341 430
Buff Spring Mercantile Co. v.
White (Civ. App.), 90 S. W.
710 41
Bugbee v. Kendrickson, 130
Mass. 437 398
Building Association v. Cum-
mings, 45 Ohio St. 664 53, 298
Bull V. Coe, 77 Cal. 54 134
Bull V. Mahlin, 69 Iowa 408 109
Bullard v. Bank, 18 Wall (U.
S.) 589 29
Bullard v. Brown, 74 Vt. 120... 182
Bullard v. Johns, 50 Ala. 382.. 384
Bullen V. Dresser, 116 Mass.
267 406
Bullen V. Morrison, 98 111. App.
609 341, 342
Bullock V. Campbell, 9 Gill
(Md.) 182 176, 211
Bullowa V. Orgo, 57 N. J. Eq.
428 67, 77, 349
Bunce v. Bunce, 65 Iowa 106... 244
261
Bunn V. Jetmore, 70 Mo. 228... 54
Burchfield v. Haffer, 34 Kan. 42. 183
Burfeind v. People's Surety Co.
of New York, 139 App. Div.
(N. Y.) 762 113, 121, 134
Burgess v. Eve, L. R. 13 Eq.
450 88, 292, 367
Burgess v. Young, 97 Me. 386.. 243
Burke v. Cruger, 8 Tex. 66 123
Burleigh v. Stott, 8 B. & C. 36. . 371
Burlew Adm'r v. Smith, 68 W.
Va. 458 Ill
Sec.
Burlington Ins. Co. v. Johnson,
120 111. 622 75
Burnap v. Bank, 95 N. Y. 125. . . 18
Burnell v. Minot, 4 Moor 340. 194a
Burne's Estate v. Fidelity & De-
posit Co., 96 Mo. App. 467... 101
112a, 112b
Burnet v. Henderson, 21 Tex.
588 60
Burnham v. Kidwell, 113 111. 425 25
Burns v. Bank. 1 Pa. St. 395... 73
Burns v. Bradford Kennedy
Lumber Co., 61 Wash. 276 398
Burns v. Parish, 3 B. Mon. (Ky.)
8 181
Burson v. Andes, 83 Va. 445 66
Burson v. Bogart, 49 Colo. 410.. 379
Burson v. Bogart, 18 Colo. App.
449 374
Burton v. Stewart, 62 Barb. (N.
Y.) 194 183
Bush V. Cutchfield, 4 Ohio St.
736 290
Bush V Kirkbrde, 131 Ala. 405.235a
Bush V. State, 19 Ind. App. 523 260
Bushnell v. Bushnell, 77 Wis.
435 202, 211
Butcher v. Chandler, 14 Ves. 567 186
Butler V. Bukey, 13 Ohio. St.
514 20
Butler V. Bissel, 1 Root (Conn.)
102 411
Butler V. Butler, 8 W. Va.
674 164, 186
Butler V. City of Milwaukee, 119
Wis. 526 301
Butler V. Foster, 14 Ala. 323... 437
Butler V. Sisson, 49 Conn. 580.. 253
Butler V. United States, 21 Wall.
(U. S.) 272 51
Butters Salt & Lumber Co. v.
Vogel, 130 Mich. 33 398
Byers v. Gilmore, 10 Colo. App.
79.... 51
Byers v. Hickman Grain Co.,
112 Iowa 451. . 361
476
Table of Cases.
C. Sec.
Cabot T. Haskins, 3 Pick.
(Mass.) 83 341
Cabrera v. American Colonial
Bank, 214 U. S. 224 362
Cade V. Gordon, 88 Ga. 461.. 418, 419
Cady V. Shepard, 12 Wis. 639... 347
Cabill V. Bigelow, 18 Pick.
(Mass.) 369 372, 398
Cabill Iron Works v. Pember-
ton, 168 N. Y. 649 342
Cabill Iron Works v. Pember-
ton, 48 App. Div. (N. Y.) 468. . 342
Cain V. State, 55 Ala. 170 429
Caldwell v. Colgate, 7 Barb. (N.
Y.) 253 221
Caldwell v. Commonwealtb, 14
Gratt. (Va.) 698 426
Caldwell v. Heitshu, 9 Watts &
S. 51 129
Caldwell v. Hurley, 41 Wash.
296 3
Caldwell v. Sigourney, 19 Conn.
37 90
Calhoun v. Gray, 150 Mo. App.
591 67
Calkins v. Chandler, 36 Mich.
320 324, 381, 384, 391
Call V. Ruffin, 1 Call (Va.) 333. . 264
Calvert v. Dock Co., 2 Keen.
638 67, 103, 138
Calvert v. Gordon, 3 Man. & Ry.
124 87, 306, 345
Calvo V. Davies, 73 N. Y. 211, 217
11, 12, 116
Cambria Iron Works v. Keynes, 56
Ohio St. 501 361
Cambridge v. Fifield, 126 Mass.
428 313
Camden v. Doremus, 3 How. (U.
S.) 515 359
Camden, City of v. Greenwald,
65 N. J. L. 458 301, 305
Cameron v. Burger (Oreg. 1912),
120 Pac. 10. 421
Camp V. Bostwick, 20 Ohio St.
337 211
Camp V. Howell, 37 Ga. 312. .115, 17i
Sec.
Campau t. Seeley, 30 Mich.
57 406, 411
Campbell v. American Bonding
Co. (Ala. 1911), 55 So. 306.. 244
Campbell v. Baker, 46 Pa. St.
243 363
Campbell v. Cable, 2 Sneed
(Tenn.) 18 328
Campbell v. Floyd, 153 Pa. St.
84 20, 21
Campbell v. Harrington, 93 Mo.
App. 315 224
Campbell v. Lane, 2 Neb.
(Unoff.) 63 238
Campbell v. Luebben, 90 Neb.
95 374
Campbell v. State, 18 Ind. 375. . 431
Canal Co. v. Vallette, 21 How.
(U. S.) 424 28
Canavan Bros. Co. v. Bendheim,
128 N. Y. Supp. 435 359, 361
Cane v. Burney, 6 Ala. 780. . . . .194a
Garden v. McNeil, 21 N. Y. 336 390
Cardeza v. Bishop, 54 App. Div.
(N. Y.) 116 374
Carey v. State, 34 Md. 105 324
Carlaftes v. Goldmeyer Co., 72
Misc. R. 75 28, 30
Carlisle v. Campbell, 76 Ala.
247 378
Carlton v. Krueger, 54 Tex. Civ.
App. 48 133
Carmack v. Commonwealth, 5
Binn. 184 324
Carmack v. Drew, 32 Wash. 236 224
Carmen v. Elledge, 40 Iowa 409 348
Carmichael v. United States
Fidelity & Guaranty Co., 163
Ala. 320 325
Carnegie v. Morrison, 2 Met. 397 370
Carpenter v. Corinth, 62 Vt. Ill 337
Carpenter v. Denon, 5 Ala. 710 64
Carpenter v. King, 9 Met.
(Mass.) 511 95, 148, 171
Carpenter v. Longan, 16 Wall.
(U. S.) 271 357
Carpenter v. Minter, 72 Tex.
370 183, 186
Table of Cases.
477
Sec.
Carr v. Smith, 129 N. C. 232.208, 210
Carralin v. Allen, 112 Iowa 168 377
Carrick v. Morrison, 2 Mauel's
(Del.) 157, 42 Atl. 447 351
Carrington v. Ford, 4 Cranch C.
C. 231 411
Carroll v. Forsyth, 69 111. 127 . . 89
Carroll County Savings Bank v.
Strother, 28 S. C. 504 366
Carson v. Reid, 137 Cal. 253 361
Carson, etc., Asso. v. Miller, 16
Nev. 327 138
Carter v. Duggan, 144 Mass. 32 325
Carter v. Fidelity & Deposit Co.,
134 Ala. 369 196, 301, 309
Carter v. Young, 9 Lea. (Tenn.)
210 246
Carter Bottle Grocer Co. v.
Clarke (Civ. App. 1906), 91 S.
W. 880 113
Cartly v. Allen, 56 Ala. 198 310
Carver v. Carver, 77 Ind. 498. . . 62
Carville v. Crane, 5 Hill. (N. Y.)
483 389
Case County v. American Exch.
State Bank, 11 N. D. 238 103
Case Threshing Mach. Co. v.
Patterson, 137 Ky. 180 341
Casey v. Gibons, 136 Cal. 368. . . 18
Cash V. People, 32 111. App. 250 326
Casker v. Harrison, 76 Va. 85.. 23
Casoni v. Jerome, 58 N. Y. 315 321
141, 287
Caspen v. People, 6 111. App. 28 320
Cass V. Adams, 3 Ohio 223 224
Cassady v. Trustees, 105 111.
560 76, 318
Cassan v. Maxwell, 39 Minn. 391 2
Cathcart v. Bryant, 28 Wash.
31 188
Cathcart v. Foulke, 13 Mo. 561. .194a
Catholic University of America
V. Morse, 32 App. D. C. 195. . . 66
100, 285
Catner v. Slater, 50 Me. 112 1
Catt V. Roat, 17 Mass. 229 397
Cavazos v. Trevine, 6 Wall. (U.
S.) 773 347
Sec.
Cawley v. People, 95 111. 249 ... 314
Cazort McGehe© Co. t. Dunbar
(Ark. 1909), 121 S. W. 270 188
Central Investment Co. t. Miles,
56 Neb. 272 359
Central Lumber Co. v. Kelter,
102 111. App. 333 30
Central Trans. Co. v. Pullman's
Car Co., 139 U. S. 24 30
Central Trust Co. v. Bank, 101
U. S. 68 357
Chadwick v. Eastman, 53 Me.
12 55, 110
Chaffee v. Jones, 19 Pick.
(Mass.) 260 3, 7, 194, 196, 203
Chaffin V. Campbell, 4 Sneed 184 207
Chamberlain v. Goodfrey, 36 Vt.
380 321
Chamberlain Banking House t.
Woolsey, 60 Neb. 516 323
Chambers v. Cochran, 18 Iowa
159 64
Chambers v. Prewitt, 172 111.
615 151, 157
Chambless v. State, 20 Tex, 197 418
Champion v. Doty, 31 Wis. 190 388
Champion v. Griffith, 13 Ohio 228 347
Champion v. Noyes, 2 Mass. 481 408
Champion Ice Mfg. & Cold Stor-
age Ck). V. American Bonding
& Trust Co., 115 Ky. 863 443
Champlain Const. Co. v. O'Brien
( U. S. C. C), 117 Fed. 271.. 788
381
Chandler v. Brainard, 14 Pick.
(Mass.) 285 195
Chandler v. Higgins, 109 111. 602 188
Chandler v. Kyle (Ala. 1912), 57
So. 475 21
Chandler v. Rutherford, 101
Fed. 774. . . 323
Chandler v. Westfall, 3 Tex. 477 347
Chapin v. Lapham, 20 Pick.
(Mass.) 467. . . 380
Chapin v. Livermore, 13 Gray
(Mass.) 561 263
Chapin v. Waters, 110 Mass. 195 251
478
Table of Cases.
Sec.
Chaplin v. Atkinson, 45 Ark.
67 374, 389, 392, 396
Chapline v. Robertson, 44 Ark.
202 214
Chapman v. Beardsley, 31 Conn.
115 11
Chapman v. Collins, 12 Cush.
(Mass.) 163 94
Chapman v. Garber, 46 Neb.
16 8, 204
Chapman v. Morrill, 20 Cal. 130 22
Chapman v. Pendleton, 26 R. I.
573 3
Chapman v. Stucky, 22 111. App.
31 217
Chappel V. Spencer, 23 Barb. (N'.
Y.) 584 109
Charles v. Hoskins, 11 Iowa 329 324
Charles v. Hoskins, 14 Ohio 471 65
Charlotte v. Gow, 59 Ga. 685... 127
Charman v. McLane, 1 Or. 339 . . 26
Charter v. Beckett, 7 Term. R.
201 39
Chase v. Beraud, 29 Cal. 138 228
Chase v. Day, 17 Johns. 114 398
Chase v. Hathorn, 61 Me. 505.54, 78
Chase v. People, 2 Colo. 481 . . 423
428, 434
Chase v. Wright, 116 Iowa 555. . 265
Chatfield v. Campbell, 35 Misc.
R. (N. Y.) 355 337
Cheboygan Co. v. Erratt, 110
Mich. 156 301, 311
Cheesebrough v. Millard, 1
Johns. Ch. (N. Y.) 409 165
Cheetham v. Ward, 1 Bos. & P.
630 251
Chelmesford Co. v. Demorest, 7
Gray (Mass.) 1 70, 305
Chenowith v. Chamberlin, 6 B.
Mon. 60 26
Cherry v. Wilson, 78 N. C. 164. . 203
Chester v. Broderick, 131 N. T.
549 229
Chester, Village of v. Leonard,
68 Conn. 495 138
Chicago V. Gage, 95 111. 593 .. 51
56, 304, 315, 318
Sec.
Chicago & M. Telegraph Co. v.
Type Telegraph Co., 137 111.
App. 131 28, 30
Chicago, etc.. Bank v. Black, 72
111. App. 147 363
Chicago, etc.. Coal Co. v. Lid-
dell, 69 111. 639 379
Chicago, etc., R. R. Co. v. Bar-
lett, 120 111. 602 2, 300, 317
Chicago Crayon Co. v. Mc-
Namara, 136 Mo. App. 460 67
Chicago Crayon Co. v. Rodgers
(Okla. 1911), 119 Pac. 630 144a
Chicago Crayon Co. v. Slattery,
67 Misc. (N. Y.) R. 148 66
Chicago Sash, Door & B. Mfg.
Co. V. Haven, 195 lU. 474.. 35
41, 342
Chicago Trust & Sav. Bank v.
Nordgren, 157 111. 663 17
Chickasaw County v. Pitcher, 36
Iowa 593 122
Child V. Powder Works, 44 N. H.
354 183
Childers v. State, 25 Tex. Cr.
App. 658 431
Childs V. Smith, 78 Ind. 425 412
Chilton V. Chapman, 13 Mo. 470 208
Chitwood V. Hatfield, 136 Mo.
App. 688 36
Choate v. Arrington, 116 Mass.
552 9, 203, 247, 252
Choate v. Hoogstraat, 105 Fed.
713 381
Choteau v. Jones, 11 111. 300... 166
174, 193, 301
Chrisman v. Harman, 29 Gratt.
(Va.) 494 154
Christian v. Keen, 80 Va. 369.. 102
Christiansen v. Mendham, 28
Misc. R. 765 23:
Christiansen v. Mendham, 45
App. Div. (N. Y.) 554 238
Christner v. Brown, 16 Iowa 130 18
Church V. Baker, 18 Colo. App.
369 235a
Church V. Howard, 17 Hun (N.
Y.) 5 109
Table of Cases.
47^
Sec.
Church T. Maloy, 70 N. Y. 63 115
Church, In re, 16 R. I. 231 157
Churchill v. Bradley, 58 Vt. 403 37
Chute V. Pattee, 37 Me. 102 46
Cilley V. Dearborn, 75 N. H.
563 144a
Cincinnati, etc., R. R. Co. v.
Morrell, 11 Heisk. 715 282
Citizens' Bank v. Elliott, 9 Kan.
App. 797 99
Citizens' Loan Asso. v. Nugent,
40 N. J. L. 215 305
Citizens' Nat. Bank v. Burch, 145
N. C. 316 67, 77
Citizens' Stock Bank v. George,
150 Mo. 1 144
Citizens' St. Ry. Co. v. Albright,
14 Ind. App. 433 66
Citizens Trust & G. Co. v. Ohio
V. T. G., 128 S. W. 317 237
City Bank v. Hopson, 53 Conn.
455 340
City Board v. Bateman, 102 N. C.
52 310
City Nat. Bank v. Dudgeon, 65
111. 10 154
City Nat. Bank v. Phelps, 86 N.
Y. 484 348
City of Madison v. American
Sanitary Engineering Co., 118
Wis. 480 67a
City of New Haven v. Eastern
Pav. Brick Co., 78 Conn. 689- 442
City of New York v. Seely-Tay-
lor Co., 149 App. Div. (N. Y.)
98 35
City of Richmond v. Byrne, 146
Mo. App. 481 67
City of — see name of city.
City Sav. Bank v. Hopson, 53
Conn. 453 349
City Trust, Safe Deposit & Sur-
ety Co. V. Lee, 204 111. 69 284
Claffin V. Ostrom, 54 N. Y.
581 82, 357
Clagett V. Ward, 5 Cranch C. C.
669 408
31
Sec.
Clancy v. Kenworthy, 74 Iowa
740 323
Clapp V. Rice, 15 Gray (Mass.)
557 133, 187
Clapp V. Rice, 13 Gray (Mass.)
406 210
Clark V. Bassett, 19 Mo. 39 14
Clark V. Birley, 41 Ch. Div. 422 113
123
Clark V. Bush, 3 Cow. 151 74
Clark V. Carrington, 7 Cranch
(U. S.) 308 321
Clark V. Devlin, 3 Bos. & Pul.
363 16, 3&
Clark V. Gordon, 121 Mass. 330 82
Clark V. Lamb, 78 Ala. 406 328
Clark V. Mallory, 185 111. 227... 133
36»
Clark V. Mallory, 83 111. App.
488 369, 394
Clark V. Merriam, 25 Conn. 576 347
Clark V. Osborn, 41 Ohio St.
28 146
Clark T. Remington, 11 Mete.
361 352-
Clark V. Russel, 3 Watts (Pa.)
213 44, 341
Clark V. Surety Company, 171
111. 235 247
Clark V. Wilkinson, 59 Wis. 543 260
303
Clark V. Williams, 61 Minn. 12 51
Clark V. Withers, 2 Ld. Ray.
1074 328
Clark V. West, 5 Ala. 117 253
Clarkson v. Commonwealth, 2 J.
J. Marsh 19 258
Clason V. Morris, 10 Johns. (N.
Y.) 524 14
Clay V. Edgeton, 19 Ohio St.
549 129, 349
Clay V. Freeman, 74 Miss. 816.. 151
Clayton v. Grayson, 4 Nev. & M.
602 347
Clayton's Case, 1 Meriv. 572 99
Clemens v. Prout, 3 Stew. & P.
(Ala.) 345 181
480
Table of Cases.
Seo.
Clements v. Langley, 2 Nev. &
M. 269 212
Clermont Bank v. Wood, 10 Vt.
582 58
Clifford V. Luhring, 69 111. 401 377
381, 391, 392
Clifton V. Wynne, 80 N. C. 145. . 337
Clinton County v. Smith (Mo. S.
C. 1911), 141 S. W. 1091 134
Clippinger v. Cress, 2 Watts. 45 121
Clopton V. Goodbar (Tex. Civ.
App. 1910), 55 S. W. 972 438
Clopton V. Hall, 51 Miss. 482.. 36
Clossen v. Bellman, 161 Ind. 610 348
Closson V. Morrison, 47 N. H.
482 323
Clough V. Woraham, 32 Tex. Civ.
App. 187 301
Cluff V. Day, 124 N. Y. 460 255
Clune V. Ford, 55 Hun (N. Y.)
479 42
Clymer v. DeYoung, 54 Pa. St.
118 384
Coates V. Coates, 33 Beavan 249 137
Cobb V. Haynes, 8 B. Mon. 137. . 209
Coburn v. Wheelock, 34 N. Y.
440 3
Cochran v. Baker, 34 Oreg. 551 138
Cocking v. Wade, 87 Md. 529.. 326
Cocks v. Barker, 49 N. Y. 107. . 50
Coe v. Cassidy, 72 N. Y. 133 81
Coe V. Vogdes, 71 Pa. St. 383 ... • 87
Coffee V. Tevis, 17 Cal. 239 194a
Coffin V. McLean, SO N. Y. 560 . . 144
Coffin V. University, 92 Ind.
337 41
Coffman v. Hopkins, 75 Va. 645 163
Cohn V. Spitzer, 129 N. Y. Supp.
104 113
Colburn v. Averill, 30 Me. 310.. 347
Colburn v. State, 47 Ind. 310 261
Coldwell V. Commonwealth, 14
Gratt. (Va.) 698 428
Cole V. Bank, 60 Ind. 350 348
Cole V. Crawford, 69 Tex. 124.. 324
Cole V. Hutchinson, 34 Minn.
410 "98
Sec.
Cole V. Justice, 8 Ala. 793 144
Cole V. Pennoyer, 14 III. 158... 24
Coleman v. Eaker, 23 Ky. Law
Rep. 513 501
CoUman v. Railroad Co., 10
Beav. 1 28
Coleraine v. Bell, 9 Mete.
(Mass.) 499 307, 337
Coles V. Pack, L. R. 5 C. P. 65. . 43
Colgrove v. Tallman, 67 N. Y. 90 21
Collins V. Gilbert, 94 U. S. 753. . 347
Collins V. McDaniel, 66 Ga. 203 333
Colter V. Morgan, 12 B. Mon.
(Ky.) 278 313
Coltrill V. Krum, 100 Mo. 405.. 126
Columbia Ave. Trust Co. v.
King, 227 Pa. St. 308 51
Columbia Co. v. Massie, 31 Oreg.
292 310
Comegys v. Cox, 1 Stew. (Ala.)
262 228
Commercial & Farmers' Nat.
Bank v. McCormick 364
Commercial Bank v. Bank, 11
Ohio 444 131
Commercial Bank v. Provident
Institution, 59 Kan. 361 357
Commercial Exchange Bank v.
McLeod, 65 Iowa 665 323
Commercial Fire Ins. Co. v.
Morris, 105 Ala. 498 382
Commercial National Bank v.
Goodrich, 107 Wis. 574 374
Commercial Nat. Bank v. Kirk-
wood, 172 111. 563 13, 563
Commissioners v. O'Rourke, 34
Hun (N. Y.) 349 63
Commissioner of Banking v.
Chelsea Sav. Bank, 161 Mich.
704 67
Commissioner of Banking v.
Chelsea Savings Bank, 161
Mich. 691 67
Commonwealth v. American
Bonding & Trust Co., 16 Pa.
Super. Ct. 570 261
Table of Cases.
481
Sec.
Oommonwealth v. Austin, 11
Gray (Mass.) 330 423
Commonwealth v. Barrows, 46
Me. 497 321
Commonwealth v. Bracken, 17
'KyTLaw. Rep. 785 65, 265
Commonwealth v. Brand, 1 Bush
(Ky.) 59 424
Commonwealth v. Bronson, 14
B. Mon. 361 424
Commonwealth v. Bryan, 8 Serg.
& R. 128 256
Commonwealth v. Buhl, 199 Pa.
St. 40 243
Commonwealth v. City Trust,
Safe Deposit & Surety Co., 224
Pa. St. 223 74
Commonwealth v. Cohen, 22 Pa. .
Super. Ct. 55 434
Commonwealth v. Coleman, 2
(Ky.) 382 421, 424, 436
Commonwealth v. Conly, 3 Pa.
St. 372 316
Commonwealth v. Contner, 18
Pa. St. 439 325
Commonwealth v. Cox, 36 Pa.
St. 442 203, 260
Commonwealth v. Fry, 4 W. Va.
721 325
Commonwealth v. Gould, 118
Mass. 300 273, 274
Commonwealth v. Hargis, 137
Ky. 1 420
Commonwealth v. Holmes, 25
Gratt. (Va.) 771 312
Commonwealth v. Julius, 173
Pa. St. 322 265
Commonwealth v. Junison, 205
Pa. St. 367 ; 337
Commonwealth v. Kendig, 2 Pa.
St. 448 47, 334
Commonwealth v. Knettle, 182
Pa. St. 176 337
Commonwealth v. Lentz, 106 Pa.
St. 643 325
Commonwealth v. Longenecker,
1 Chester County Rep. (Pa.)
202 250
31
Sec.
Commonwealth v. McClure
(Ky.), 49 S. W. 789 337
Commonwealth v. Meeser, 19 Pa.
Super. Ct. 1 433
Commonwealth v. Miller, 8 Serg.
& R. (Pa.) 452 64, 95
Commonwealth v. Moren, 25 Ky.
Law Rep. 1635 323
Commonwealth v. Oblenden, 135
Pa. St. 530 434
Commonwealth v. Oblender, 135
Pa. St. 536 436
Commonwealth v. Overby, 80
Ky. 208 414, 424
Commonwealth v. Picey, 125 Pa.
St. 542 263
Commonwealth v. Ramsey, 2
Duv. (Ky.) 385 418
Commonwealth v. Real Estate
Title & Trust Co., 22 Pa.
Super. Ct. 235 431, 434
Commonwealth v. Roberts, 4
Met. (Ky.) 220 431
Commonwealth v. Roberts, 1
Duv. (Ky.) 199 431
Commonwealth v. Rhoads, 37
Pa. St. 60 265
Commonwealth v. Rutland, 119
Mass. 317 431
Commonwealth v. Schick, 61 Pa.
St. 495 418
Commonwealth v. Skiggs, 3
Bush (Ky.) 19 431
Commonwealth v. Slocum, 14
Gray 395 431
Commonwealth v. Stockton, 5 T.
B. Mon. 192 324
Commonwealth v. Stone, 24 Ky.
Law Rep. 1297 323
Commonwealth v. Stub, 11 Pa.
St. 150 242
Commonwealth v. Terry, 2 Duv.
(Ky.) 383 431
Commonwealth v. Tilton, 23 Ky.
Law Rep. 753 325, 326
Commonwealth v. Toms, 45 Pa.
St. 408 75. 310
Table oi' Cases.
Sec.
Ck>mmonwealth v. Torney, 3
Watts & S. 353 74
Commonwealth v. Webster, 1
Bush (Ky.) 616 424,426
Commonwealth v. Wenrick, 8
Watts (Pa.) 159 242
Commonwealth v. Wolbert, 6
Binn. (Pa.) 292 314
Comstock V. Drohan, 71 N. Y.
13 11
Comstock V. Gage, 91 111. 328.. 51
76, 142
Comstock Castle Stove Co. v.
Caulfield (Neb.), 95 N. W. 783 325
Concord v. Pillsbury, 33 N. H.
310 144
Condit V. Winslow, 105 Ind. 142 251
Congdon v. Read, 7 R. I. 576... 354
Conklin v. Conklin, 54 Ind. 289 146
Conley v. Buck, 100 Ga. 187 208
Conn V. State ex rel. Stutsman,
125 Ind. 513 112
Connecticut Mut. L. Ins. Co. v.
Scott, 81 Ky. 540 83, 127
Connell v. Crawford Co., 59 Pa.
St. 196 337
Connell v. McCowan, 81 111. 285 20
Connell v. McCowan, 53 111. 363 157
Connelly v. Bourg, 16 La. Ann.
108 163
Connelly v. American Bonding
& Trust Co., 24 Ky. Law Rep.
714 301, 335
Conner v. Reeves, 103 N. Y. 527 65
Connolly v. Dolan, 22 R. I. 60. . . 166
Connor v. Hodges, 7 Ga. App.
153 144a
Conover v. Hill, 76 111. 342 201
Conover v. Stillwell, 34 N. J. L.
54 341
Conrad v. Clark, 106 Minn. 430 396
Consalus, In re, 95 N. Y. 340... 252
Consolidated Portrait & Frame
Co. V. Claxton, 1 Ga. App. 809 3a
Constant v. Matteson, 22 111. 546 189
Constantine v. Kalamazoo Beet
Sugar Co., 132 Mich. 480 30
Sec.
C!onverse v. United States, 21
How. 463 312
Cook V. American Tubing &
Webbing Co., 28 R. I. 41 ..28. 30
Cook V. Berry, 193 Pa. St. 377. . 11
Cook V. Caroway, 29 Kan. 41.. 27
Cook V. King, 7 111. App. 549 224
Cook V. Spencer (Mo. App. 1909),
122 S. W. 34 224
Cooke V. Orme, 37 111. 186.. 348, 355
Cookman v. Stoddard, 132 App.
Div. (N. Y.) 485 243
Coombs V. Harford, 99 Me. 426 70
Coons V. People, 76 111. 391 314
Cooper V. Chamblee, 114 Ga. 116 202
Cooper V. Joel, 1 Deg. F. & J.
240 366
Cooper V. National Fertilizer
Co., 132 Ga. 529 193
Cooper V. Parker (Ala. 1912), 57
So. 472 182
Cooper V. People, 28 Colo. 87.. 329
331
Cooper V. Rivers, 95 Miss. 423 • • 437
Coots V. Farnsworth, 61 Mich.
497 94
Copis V. Middleton, 1 Turn. &
Russ. 224 153, 178
Corielle v. Allen, 13 Iowa 189.. 115
Corkins v. Collins, 16 Mich. 478 392
Corlies v. Estes, 31 Vt. 653 117
Corlis V. Fleming, 30 N. J. L.
349 90
Cormon v. Elledge, 40 Iowa 400 355
Corn Exchange National Bank
of Chicago v. Curtiss, 146 111.
App. 489 356
Cornise v. Kellogg, 20 111. 11 15
Cornthwaite v. Bank, 57 Ind. 268 246
Corrigan v. Foster, 51 Ohio St.
225 247
Corydon Deposit Bank v. Mc-
Clure, 140 Ky. 149 122
Coster V. IMayor, 43 N. Y. 399.. 358
Coster V. Watson, 15 Johns. (N.
Y.) 535 27
Table of Cases.
483
Sec.
Cothren v. Connaughton, 24
Wis. 134 27
Cotton V. Alexander, 32 Kan.
339 371
Cotton V. Simpson, 8 Ad. & EI.
136 110
Couch V. Terry, 12 Allen, 227. .. 196
Coughran v. Bigelow, 9 Utah
260 67
Coulter V. Richmond, 59 N. Y.
478 347
Coulthart v. Clementson, 5 Q. B.
Div. 42 306, 346, 367, 368
County V. Wilhite, 29 Mo. App.
459 56
County Commissioners of Cal-
vert County V. Hellen, 72 Md.
603 34
County of Harlan v. Whitney, 65
Neb. 105 41
County of Pine v. Willard, 39
Minn. 125 69
Courtis V. Dennis, 7 Met.
(Mass.) 510 4
Court Vesper No. 69, Foresters
of America v. Fries, 22 Pa.
Super. Ct. 250 35, 141
Covey V. Bostwick, 20 Ohio St.
337 194a, 202
Covey V. Neff, 63 Ind. 391 ..174, 182
Covey V. Schiesswohl, 50 Colo.
68 67, 112
Cowdery v. Hahn, 105 Wis. 455. . 138
Cowdin V. Gottgetreu, 55 N. Y.
650 398
Cowell V. Edwards, 2 Bos. & P.
268 196
Cowen V. Culbert, 3 Ga. 239 64
Cowles V. Peck, 55 Conn. 251. .4, 350
Cowles V. Townsend, 37 Ala. 77. 370
Cowles V. United States Fidelity
& Guaranty Co., 32 Wash.
120 112d
Cox V. Hartranft, 154 Pa. St. 457 238
Cox V. Highley, 100 Pa. St. 252. . 404
Cox V. Jeffries, 73 Mo. App. 412 146
Cox V. Peltier, 159 Ind. 355 398
Sec.
Cox V. Reed, 27 111. 434 195
Cox V. Sargent, 10 Colo. App. 1 238
Cozzens v. Brick Co., 166 111. 213 351
Craddock v. Turner, 6 Leigh.
(Va.) 116 65
Craft V. Kendrick, 39 Fla. 90.. 377,
384, 396
Craft V. Mott, 5 Barb. (N. Y.) 305 159
Craig V. Craig, 5 Rawle (Pa.)
91 175, 194
Craig V. Governor, 3 Cold.
(Tenn.) 244 332
Craig V. Parks, 40 N. Y. 181 357
Craighead v. Peterson, 72 N. Y.
279 447
Cramer v. Redman, 10 Wyo. 328 208
Cramer v. Tittle, 72 Cal. 12 34
Crandall v. First National Bank
of Auburn, 61 Ind. 349 110
Crane v. Ailing, 15 N. J. L. 423. . 294
Cranmer v. MeSwords, 26 W. Va.
412 183
Cranson v. Wilsey, 71 Mich. 356 255
Crawford v. Beall, 21 Md. 208.. 94
Crawford v. Edison, 45 Ohio St.
239 337, 381, 391, 393
Crawford v. Gaulden, 33 Ga. 173 131
Crawford v. Howard, 9 Ga. 314. . 309
Crawford v. Owens, 79 S. W. 59 51
Crawford v. Richeson, 101 111.
351 18, 338
Crawford v. Stirling, 4 Esp. 207 26:
Crawford v. Turk, 24 Gratt.
(Va.) 176 65.
Crawn v. Commonwealth, 84 Va.
282 314
Craythorne v. Swinburne, 16
Ves. 160 7, 10, 194, 203
Cressej' v. Gierman, 7 Minn.
398 334
Crim V. Fitch, 53 Ind. 214 395
Crim V. Fleming, 101 Ind. 154.. 132.
Cripps V. Hartnoll, 4 Best. & S.
414 ..~ 383, 415, 416
Crisfield v. Murdock, 127 N. Y.
315 209
Crisfield v. State, 55 Md 192 163.
484
Table of Casks.
Sec.
Crist V. Buiiingham, 62 Barb.
(N. Y.) 351 66, 356
Crittenden v. Fislier, 46 Mich.
70 348, 352, 354
Croft V. Bunster, 9 Wis. 503 357
Croft V. Ins. Co., 40 W. Va. 508. . 400
Croft V. Isham, 13 Conn. 36 355
Croft V. Moore, 9 Watts 451 166
Crook V. Hudson, 4 Lea (Tenn.)
448 260
Crook V. Scott, 65 App. Div. (N.
Y.) 139 381
Crooks V. Tully, 50 Cal. 254.. 347
349
■Crosby v. Wyatt, 23 Me. 156. . .3, 173
Crosby v. Wyatt, 10 N. H. 318. . . 117
'Cross V. Petree, 10 B. Hon.
(Ky.) 413 370
Cross V. Wood, 30 Ind. 378 115
Crossly v. Stanley, 112 Iowa 24 97
Crossman v. Woheleben, 90 111.
537 46, 47
Crouch V. State, 25 Tex. 755 431
Crump V. Case Threshing Ma-
chine Co. (Ky.), 123 S. W. 333 361
Crystal Lake Tp. v. Hill, 109
Mich. 246 52
Culbertson v. Wilcox, 11 Wash.
522 171
€ulliford v. Walser, 158 N. Y.
65 73, 229, 405, 410
Culliman v. Bowker, 180 N. Y.
93 447
Cullinan v. Bowker, 88 App. Div.
(N. Y.) 170 447
Cullom V. Dolloff, 94 111. 330.. 308
329, 330
Culver V. Real Estate Co., 91 Pa.
St. 367 376, 28, 30
Cumberland v. Pemiell, 69 Me.
35 316
Cumberland Building & Loan
Ass'n V. Gibbs, 119 Mich. 318 127
Cumberland Glass Mfg. Co. v.
Wheaton, 208 Mass. 425.. 348, 352
353, 356
Cummings v. Hockley, 8 Johns.
(N. Y.) 202 180, 195
Sec.
Cummings v. Little, 45 Me. 183 130
171
Cummings v. Mugge, 94 111. 186 232
Cunningham v. Clarkson,
Wright (Ohio) ,217 406
Cunningham v. Finch, 63 Neb.
189 235a
Cunningham v. Wrenn, 23 111. 64 129
Cuppy V. Coffman, 82 Iowa 214 Z7
Currier v. Baker, 51 N. H. 613. . 196
Currier v. Fellows, 27 N. H. 366 198
Curry V. Hale, 15 W. Va. 867 11
Curry v. Morrison, 40 Pa. Super.
Ct. 301 38
Curtis V. Bank, 39 Ohio 579 246
Curtis V. Brown, 5 Cush. (Mass.)
488 392
Curtis V. United States, 100 U. S.
119 76
Cutler v. Dickinson, 8 Pick.
(Mass.) 387 60
Cutler V. Roberts, 7 Neb. 4 . . 51, 52
D.
Dahlman v. Hammel, 45 Wis.
466 342
Dair v. United States, 16 Wall.
(U. S.) 1 50, 315
Dale v. Commonwealth, 101 Ky.
612 420
Daley v. Commonwealth, 75 Pa.
St. 331 71
Dalton v. Barnard, 150 Mass.
473. . . . 214
Damb v. Hoffman, 3 E. D. Smith
361 Ill
Dane v. Gilmore, 51 Me. 547 321
Daneri v. Gazzola, 139 Cal. 416. . 113
Danforth v. Semple, 73 111. 170 115
Daniel v. McRae, 2 Hawks (N.
C.) 590 206
Daniels v. Gower, 54 Iowa 319 . . 51
Daniels v. Tearney, 12 Otto (U.
S.) 415 59a
Danker v. Atwood, 119 Mass.
146 53, 56, 298
Darnell v. Dolan (Tex. Civ. App.
1910), 132 S. W. 857 356, 364
Darst v. Bates, 95 111. 493. . .390, 397
Table of Cases.
485
Sec
Dart V. Sherwood, 7 Wis. 446.. 58
Davenport v. Olmstead, 43 Conn.
67 265
Davenport v. Richards, 16 Conn.
310 252
Davidson v. Taylor, 12 Wheat.
(U. S.) 604 412
Davies v. Humphreys, 6 Mees.
& W. 153 176, 192, 211
Davis V. Baker, 71 Ga. 33 15
Davis V. Bauer, 41 Ohio St. 257.194a
Davis V. Blackwell, 5 111. App.
32 26
Davis V. Clark, 58 Kan. 454.. 90, 91
Davis V. Emerson, 17 Me. 84.196, 200
Davis V. Graham, 29 Iowa 514. . 114
Davis V. Hooper, 33 Miss. 173.. 253
Davis V. Maynard, 9 Mass. 242 . . 64
Davis V. Patrick, 141 U. S.
479. . . . 377. 382
Davis V. People. 1 Gil. (111.)
409. . . . 227
Davis V. Pullman Co., 34 Tex.
Civ. App. 621. . 438, 440
Davis V. Railroad Co., 131 Mass.
258. ... 30
Davis V. Scott, 15 Abb. Pr. (N.
Y.) 127. ... • - 404
Davis V. Shed, 15 Mass. 6 243
Davis V. State, 43 Ind. 103 376
Davis V. Stevens, 10 N. H. 186 • . 178
Davis V. Stokes County, 74 N. C.
374. .. . 190
Davis V. Stotts, 43 Ind. 103 92
Davis V. Stout, 126 Ind. 12 114
Davis V. Wells, 104 U. S.
159. ... 339, 348, 352, 356
Davis Belau & Co. v. National
Surety Co., 139 Cal. 223... . 35
Davis Sewing Mach. Co. v. Mc-
Ginnis, 45 Iowa 538 362
Davis Sewing Mach. Co. v. Rich-
ards, 115 U. S. 524 348
Davy V. Pendergrass, 5 Barn. &
Al. 187 117
Dawson v. Bank, 5 Pike 283,
298. ... 99
Sec.
Dawson v. Baum, 3 Wash. Tex.
464 219, 231
Dawson v. Dawson, 25 Ohio St.
443 258
Dawson v. Raynes, 2 Russ. 466. 276
Dawson v. State, 38 Ohio St. 1. 313
Day v. Ramey, 40 Ohio St.
446. . . . 132, 171
Dean v. Commonwealth, 1 Bush
(Ky.) 20. . . 437
Dean v. Newhall, 2 Term. R.
1S6.. . . 294
Dean v. Parker, 17 Mass. 591.. 406
Dean v. Rice, 63 Kan. 691....- 116
Dean v. Walker, 107 111. 540... 358
Dearborn v. Sawyer, 59 N. H.
95. . . . 353
Deardorff v. Foresman, 24 Ind.
481. ... 52
Dearing v. Jordan (Civ. App.
1910), 130 S. W. 876 100, 114
Deariso v. First National Bank,
7 Ga. App. 841. 93a
Deaton Grocery Co. v. Interna-
tional Harvester Co. (Civ.
App. 1907), 105 S. W. 556.... 28
Deblois v. Earle, 7 R. I. 26-. . 82
De Bolle v. Ins. Co., 4 Whart.
(Pa.) 68. . . 358
De Camp v. Bullard, 33 App.
Div. (N. Y.) 627 67
Dechard v. Edwards, 2 Sneed
(Tenn.) 93. . . 220
Decker v. Decker, 74 Me. 465 . . 244
De Cramer v. Anderson, 113
Mich. 578. . . 348
Dedham Bank v. Chickering, 3
Pick. (Mass.) 335. . 71, 284
Dedlick v. Doll, 54 N. Y. 234- . • . 56
Dee V. Downs, 57 Iowa 539 ... . 389
Deegan v. Deegan, 22 Neb.
185. . . . 259, 265, 268
Deere Plow Co. v. McCullough,
102 Mo. App. 458. 348
Deering v. IMoore, 86 Me. 181... 54
Deering v. Winchelsea, 2 Bos. &
P. 270. . . 209, 260
486
Table of Cases.
Sec.
Deering v. Winchelsea, 1 Cox
318. . . . 3, 203
Deering & Co. v. Shumpik, 67
Minn. 348. . . 51
Deering & Co. v. Veal, 25 Ky.
Law Rep. 1S09 48a, 126
Deering Harvesting Co. v.
Peugh, 17 Ind. App. 440 51
Degnon-McLean Const. Co. v.
City Trust, Safe Deposit and
Surety Co. of Philadelphia,
184 N. Y. 544. 74
Degnon-McLean Const. Co. v.
City Trust, Safe Deposit and
Surety Co., 99 App. Div. (N.
Y.) 195. . . 74, 112e
Degnon-McLean Const. Co. v.
City Trust, Safe Deposit and
Surety Co., 40 Misc. R. (N. Y.)
530 112
De Greiff v. Wilson, 30 N. J. Eq.
435 321
De La Garz v. Cowlan, 21 Tex.
387. . . . 325
Delaware, Etc. R. R. Co. v.
Iron, 38 N. J. Eq. 151 186
Delo V. Banks, 101 Pa. St. 458- • 74
Demelman v. Hunt, 168 Mass.
102. . . . 408
De Merritt v. Bickford, 53 N. H.
523. . . . 383
Deming v. Maas (Cal. App.
1912), 123 Pac. 204- . - - . .100. Ill
Dempsey v. Fenno, 16 Ark. 491. 262
Dempsey v. Lipp, 15 How. Pr.
(N. Y.) 11. . . 404
Denick v. Hubbard, 27 Hun (N.
Y.) 347. . . 146
Denison v. Gibson, 24 Mich.
187. . . . 61
Dennie v. Smith, 129 Mass.
143 321, 325
Dent V. Arthur, 156 Mo. App. 472 382
Denton v. Lytle, 4 Bush (Ky.)
597 210
Sec.
Denton v. Peters, L. R. 5 Q. B
475 347
Denver Engineering Works v.
Elkins, 181 Fed. 684 121
Deobold v. Oppermann, 111 N.
Y. 531 252
Deposit Bank v. Thomason, 23
Ky. Law Rep. 1957 222
Deposit Bank of Sulphur v.
Peck, 110 Ky. 579 36
Derry Bank v. Baldwin, 41 N. H.
434 58
Desgranges v. Newbauer, 149
Mo. App. 715. . . 348, 349
De Sisto V. Stummel, 58 App.
Div. (N. Y.) 486 301
Desserick v. Merle & Heaney
Mfg. Co., Colo. 109 Pac. 949.. 361
Detroit v. Weler, 29 Mich.
24. . . . 69, 301, 302
Detroit Sav. Bank v. Ziegler, 49
Mich. 157. . . 80, 285
Devers v. Howard, 144 Mo.
671 112
Devine v. State, 5 Sneed (Tenn.)
623 414, 429
Dewey v. Field, 4 Met. (Mass.)
381. . . 148
Dewey v. Investment Co., 48
Minn. 130. . . 359
Dewey, v. Kavanaugh, 45 Neb.
233 333
Dewey v. McCollum, 91 Ind.
173. . . . 112
De Witt Co. Bank v. Nixon, 125
111. 615 347
De Wolf V. Reland, 1 Pet. (U.
S.) 476. . . . 383
Dexter v. Blanchard, 11 Met.
(Mass.) 365 376
Dey V. Martin, 78 Va. 1 102
Dibble v. Richardson, 171 N. Y.
131. . . . 19
Dick V. Moon, 26 Minn. 309 152
Dickerman v. Miner, 43 Iowa
508. . . . .. 110
Table of Cases.
487
Sec.
Dickerson v. Derrickson, 39 111.
574 353
Dickerson v. Heman, 9 Daly (N.
Y.) 298. . . 223
Dickerson v. State, 20 Neb.
72. . . . 431
Dickson v. Conde, 148 Ind. 279.. 396
Diefentlhaler v. Hall, 96 111.
App. 639 51
Dienst v. Fleischmann Loan &
Building Co., 30 Ohio Cir. Ct.
R. 537. . . 144a
Diers v. Mallon, 46 Neb. 121... 323
Dlllenback v. Dygert, 97 N. Y.
303. ... 206
Dillman v. Nadelhoffer, 160 111.
121. ... 35, 39, 342, 359, 360
Dillon V. Russell, 5 Neb. 484... 113
Dillon V Scofield, 11 Neb. 419. . . 168
Dimmick v. Collins, 24 Wash.
78. . . . 381
Dinkins v. Bailey, 23 Miss. 284 163
Dinsmore v. Tidhall, 34 Ohio St.
411 143, 287
Disborough v. Bidraan, 20 N. J.
L. 275 90
Dishneau v. Newton, 91 Wis.
199. . . 324
Dist. Tp. of Fox V. McCord, 54
Iowa 346. . 71
Ditmars v. Commonwealth, 7
Pa. St. 335. 334
Diversy v. Moor, 22 111. 331 15
Dix V. Morris, 66 Mo. 514 244
Dixon V. Ewing, 3 Ohio S. 280. 132
Dixon V. Spencer, 59 Md. 246-. 363
Dixon V. Steel, 80 Law T. R. (N.
S.) 404 154
Doane v. Eldridge, 16 Gray
(Mass.) 254. . . 106
Doane v. New Orleans, Etc.
Tel. Co., 11 La. Ann. 504 126
Dobbins v. Bradley, 17 Wend.
(N. Y.) 422 79, 356
Dobie V. Fidelity & Casualty
Co., 95 Wis. 540. 149
Sec.
Dobyns v. McGovern, 15 Mo.
662. . . . 249
Dock V. Boyd, 93 Pa. St. 92 379
Dodd V. Drefus, 17 Hun (N. Y.)
600 20
Dodd V. Vucovich, 38 Mont.
188. . . . .' 100, 111
Dodd V. Wilson, 4 Del. Ch. 399. 163
Dodd V. Winn, 27 Mo. 504 196
Dodder v. Moberly (Okla. 1911)
114 Pac. 714 182
Dodge V. McKeihnie, 156 N. Y.
514. . . . 189
Dodge V. Myer, 1 Cal. 405.-... 356
Dodge V Perkins, 9 Pick.
(Mass.) 368 319
Dodgson V. Henderson, 113 111.
360, 361 46, 363
Doe V. McFarland, 9 Cranch
(U. S.) 151 245
Doe V. Tuttle, 4 Mass. 414 121
Doll V. Crume, 41 Neb. 655 112
Donahue v. Gunter, 142 Wis. 447 437
Donald v. First National Bank
of Commerce (Miss. 1911), 54
So. 72 129
Donavan v. Cornell, 3 Day
(Conn.) 339. . . 404
Doniphan v. State, 50 Miss. 54 430
Donley v. Camp, 22 Ala. 659... 349
Donnell Manf. Co. v. Jones, 49
111. App. 327. . 56, 57
Don Yook v. Mill Co., 16 Wash,
450 387
Doolittle V. Dwight, 2 Met.
(Ky.) 561. . . 180, 187
Doorley v. Farmers' Mechanics'
Lumber Co., 4 Kan. App. 93- • 51
Doran v. Cohen, 147 Mass. 342. 217
Doran v. Davis, 43 Iowa 86 188
Doremus v. Selden, 19 John.
(N. Y.) 213. 187
Dorrington v. Minnick, 15 Neb.
397 182
Dorsey v. Wyman, 6 Gill. (Md.)
59. . . 178
488
Table of Oases.
Sec.
Dorsheimer v. Bucher, 7 Serg.
& R. 9. . 152
Doty V. Braska, 138 Iowa 396-. 437
Doud V. Walker, 48 Iowa 634.. 77
Dougherty v. Van Riper (N. M.
1911), 120 Pac. 333 385
Douglas V. Day, 28 Ohio St. 175 258
Douglass V. Rowland, 24 Wend.
(X. Y.) 35 . . ....348, 355
Douglass V. Kessler, 57 Iowa
63 260
Douglass V. Mayor, 56 How. Pr.
(X. Y.) 178 244
Douglass V. Reynolds, 7 Pet. (U.
S.) 113. . 45, 354, 355, 356
Douglass County v. Bardon, 79
Wis. 641 54
Dover v. Robinson, 64 Me. 183. 106
Dover v. Twombly, 42 X. H.
59. . . . .70, 305
Dow-Hayden Grocery Co. v.
Murray, 24 Ky. Law Rep.
2255. ... 42, 56, 57
Downer v. Dana, 17 Vt. 518- - . 144
Downey v. Hinchman, 25 Ind.
453 385
Downing v. Funk, 5 Rawle
(Pa.) 69. . . 341
Downing v. Linnille, 3 Bush
(Ky.) 472. . . 153
Dows V. Sweet, 134 Mass. 140.- 390
Dows V. Sweet, 127 Mass. 364.. 390
Dows V. Sweet, 120 Mass. 322.. 390
Dozies V. Lea, Humph. 320. ... . 171
Drake v. Flewellen, 33 Ala. 106. 380
Drake v. Sherman, 197 111. 362. 97
Drakely v. Gregg, 8 Wall. (U.
S.) 242. . . 114
Drane v. Baylies, 1 Humph.
(Tenn.) 173 246
Draper v. Romeyn, 18 Barb. (N.
Y.) 166 49
Draper v. Snow, 20 X. Y. 331.. 342
Draper v. Wild, 13 Gray
(Mass.) 580 120
Sec-
Draper v. Wood, 112 Mass.
315. . . . 103, 109
Dray v. Davy, 10 Ad. & El. 30. . 79
Dreeben v. First Xational Bank
(Tex. Civ. App. 1906), 93 S. W.
510 113, 119
Drescher v. Fulham, 11 Colo.
App. 62. . . 171
Dressier v. Davis, 12 Wis. 58-. 227
Drew V. Lockett, 32 Beav. 499. 152
Driskell v. Mateer, 31 ]Mo. 325. . 147
Dr. Koch Vegetable Tea Co. v.
Gates, 43 Wash. 478. 285
Drumheller v. American Surety
Co., 30 Wash. 530. .112b
Drummond v. Prestman, 12
Wheat. (U. S.) 515 321, 356
Drummond v. Yager, 10 111.
App. 380. . . 194
Dry Goods Co. v. Yearout, 59
Kan. 684. . . 356
Dubois V. Mason, 127 Mass. 37. 17
Dubuque First Xat. Bank v
Carpenter, 41 Iowa 518 357
Ducker v. Rapp, 67 X. Y.
464. . . . 81, 113
Dufan v. Wright, 25 Wend. (X.
Y.) 636. . . . 82
Dugger V. White, 51 Ark. 232.. 247
Dugins V. Edwards, 17 How.
Pr. (X. Y.) 290. 404
Duke V. State, 35 Tex. 424 431
Du Laurence v. State, 31 Ohio C.
C. 414 421
Dunbar v. Cazoit & McGehee
Co., 96 Ark. 308. 171
Duncan v. Tindall, 20 Ohio St.
567. . . . 411
Duncanson v. Kuby, 90 111. App.
15. . . . 342
Dunfee v. Dunfee, 145 App. Div.
(X. Y.) 108. . . 126
Dunkin v. Hodge, 46 Ala. 523.. 416
Dunlap v. Foster, 7 Ala. 734.168, 207
Dunlap V. Willett, 153 X. C.
317 50
Table of Cases.
489-
Sec.
Dunn V. Garrett, 93 Tenn. 650. 51
Dunn V. Slie, Holt N. P. 399. . ■ 120
Dunn V. Wade, 23 Mo. 207 210
Dunn V. West, 5 B. Mon (Ky.)
376. . . . 382, 383
Dunne v. American Surety Co.,
34 Misc. R. (N. Y.) 584 242
Dupee V. Blake, 148 111. 453 116
Durand v. Truesdell, 44 N. J. L.
597. 163
Durbin v. Kuney, 19 Oreg. 71,
74. . . . 194, 211
Durden v. Dehle, 3 Ga. App. 97. 26
Durpee v. People ex rel. Askren,
155 111. 354 30
Dwelling House Ins. Co. v.
Johnston, 90 Mich. 170 88
Dwight V. Guanajuato Min. &
Mill Co., 142 App. Div. (N. Y.)
354. . . . 359
Dyott V. Dean, 2 Chit. 72 404
Dysart v. Crow, 170 Mo.
275 196, 197
E.
Eagan v. Mahoney (Colo. App.
1912), 121 Pac. 108. 30
Earp V. Stephens, 1 Ala. App.
447 334
East Bridgewater Savings Bank
V. Bates, 191 Mass. 110 86
Easterly v Barber, 66 N. Y. 433 210
Eastern, Etc. R. R. Co. v. Coch-
rane, 23 L. J. N. S. 61 282
Eastern R. R. Co. v. Loring, 136
Mass. 381. . . 286
Eastman v. Foster, 8 Met.
(Mass.) 19. . . 151
Eastman v. Plumer, 32 N. H.
238. . . . 94, 96
Easton v. Ormsby, 18 R. I.
309 216, 131
Eastwood V. Kenyon, 11 Ad. &
E. 438 306, 374
Eaton V. Foster, 66 111. App.
486 350
Sec.
Eaton V. Harth, 45 111. App.
355. . . . •• 321
Eaton V. Lambert, 1 Neb.
339. . . . 163, 186
Eaton Rapids v. Stump (Mich.)
86 N. W. 438. . . 301
Eau Clair St. Louis Lumber Co.
V. Banks, 136 Mo. App. 44.66, 67
Eberhart v. Page, 89 111. 550... 347
Eddy V. Heath, 31 Mo. 141. 6
Eddy V. Kincard, 28 Oreg. 53?.. 305
Eddy V. Roberts, 17 111. 505... 386
Edeton v. White, 6 Bush (Ky.)
408. . . . • • 210
Edgerly v. Lawson (Mass.), 57
N. E. 1020 357
Edmonds v. Sheahan, 47 Tex.
443 166, 198
Edmonson v. Potts Admr. Ill
Va. 79. . . 144a
Edward v. County of Hennepin,
116 Minn. 101 437
Edwards v. Bucker, 66 Kan,
241 235a
Edwards v. Davenport (U. S. C.
C), 20 Fed. 756. 25
Edwards v. Van Cleave, 47 Ind.
App. 347 396
Ehrlich v. Ringer, 65 Misc. R. (N.
Y.) 15 224
Eickhoff v. Eikenbary, 52 Neb.
332 134
Eisley v. Horr, 42 Neb. 3. 3
Elbert v. Jacoby, 8 Bush (Ky.)
547 203
Elder v. Elder, 43 Kan. 514 190
Elder v. Prussing, 101 111. App.
655. . . 65
Elder v. Warfield, 7 H. & J.
(Md.) 391. . . 374
Elevator Co. v. Memphis & C. R.
Co., 85 Tenn. 703 28
Elkin V. People, 3 Scam (111.)
207. . . . 328
Ellesmere Brewing Co. t
490
Table of Cases.
Sec.
Cooper (1896), 2 Q. B.
75. . . . 3, 77, 103, 194, 197, 205
Ellett-Kendell Co. v. Western
Store's Co., 132 Mo. App. 513 30
Ellicott V. Nichols, 7 Gill (Md.)
85 167, 190, 371
Elling V. Vanderlyn, 4 John. Ch.
(N. Y.) 237 167, 190, 341, 371
Elliott V. Commonwealth, 144 Ky.
335 333
Elliott V. Quails, 149 Mo. App.
482. . . 121
Ellis V. Adderton, 88 N. C. 472- . 63
Ellis V. Conrad Seipp Brewing
Co., 207 111. 291. 132
Ellis V. Felt, 8 Ga. App. 408 .... 385
Ellis V. Fisher, 10 La. Ann. 479. 224
Ellis V. Johnson, 96 Ind. 177... 11
Ellis V. Wilmot, 10 Exch. 10 92
Ellison V. Jackson, 12 Cal. 542. 381
Ellison V. State, 8 Ala. 273 419
Ellsworth V. Brewer, 11 Pick.
(Mass.) 320. . . 16
Ellsworth V. Harrison, 101 111.
274 82, 357
Elton V. Johnson, 16 Conn.
253 43
Elwood V. Deifendorf, 5 Barb.
(N. Y.) 398. . . 159, 171
Ely V. Bibb, 4 J. J. Marsh (Ky.)
71 359
Emerson v. Slater, 22 How. (U.
S.) 28, 43 382, 383, 391
Emery v. Baltz, 94 N. Y. 408- . . 88
Emmons v. Gordon, 140 Mo.
490. . . .244, 245
Empire State Surety Co. v. Bal-
lou (Wash. 1911), 118 Pac.
923. . . . 123, 179
Empire State Surety Co. v. Car-
roll County (C. C. A. 1912),
194 Fed. 593. . 54, 67b, 305
Empire State Surety Co. v. Har-
rison, 184 Fed. 58 144a
Endress v. Ent, 18 Kan. 236... 213
Enfurth v. Stevenson, 71 Ark.
199. ... 112a
, Sec.
Engles V. Ins. Co., 46 Md. 322.. 285
English T. Landon, 181 111.
614 46, 114, 36?
Ennis v. Smith, 4 How. (U. S.)
400 260
Eno V. Crooke, 10 N. Y. 60 163
Enright v. Falvey, 4 L. R. Ir.
397 14?
Enterprise Hotel Co. v. Book, 48
Oreg. 58. .... ..101, 112a, 112c,
112d, 112e
Erie County Savings Bank v.
Cort, 104 N. Y. 532. 37
Erwin v. Downs, 15 N. Y.
576 365, 366
Erwin v. Lambon, 1 Harr. (Del.)
125. . . . 349
Eshleman v. Bolenires, 144 Pa.
St. 269. . . 209
Essex Chosen Freeholder v.
Lindsley, 41 N. J. Eq. 189 ... . 189
Estep V. Lacey, 35 Iowa 419... 420
Evans v. Daugherty, 84 Ala.
68 51
Evans v. Graden, 125 Mo. 72... 138
Evans v. Keeland, 9 Ala. 42 126
Evans v. McCormick, 167 Pa.
St. 247. . . 348
Evansville Nat. Bank v. Kauf-
mann, 93 N. Y. 273 340, 257
Evers v. Sager, 28 Mich. 47 226
Everson v. Gere, 122 N. Y. 290. 357
Eubanks v. Sites (Tex. Civ. App.
1912), 146 S. W. 952 194a
Ewen V. Wilbor, 99 111. App. 132 67
Ewen V. Wilbor, 208 111. 492... 67
Exchange Bank v. Thomas, 25
Ky. Law Rep. 228 192
Exchange National Bank of
Chicago V. Curtiss, 146 III.
App. 489. . . . 356
Exeter Bank v. Rogers, 7 N. H.
21 72, 282
Eyre v. Everett, 3 Hare 567... 193
Eyre v. Everett, 2 Russ 382... 170
Table of Cases.
491
T. Sec.
Fairbank Co. v. American Bond-
ing & Trust Co., 97 Mo. App.
2C5. . . . 67, 101
Faire's v. Cockerell, 88 Tex.
428. . . . 173, 178
Fairlie v. Denton, 8 B. & C.
395. . . . 397
Fales & Jenks Mach. Co. v.
Browning, 68 S. C. 13 342
Fall V. Youmans, 67 Minn. 83-. 359
Farmer v. Russell, 1 Bos. &
Pul. 296 .. . 38
Farmers' & Drover's Nat. Bank
V. Braden, 145 Pa. St. 473 141
Farmers' & Merchants' Bank
V. Shoib, 137 Cal. 685 171
Farmers' Bank v. Wickliffe, 131
Ky. 787. . . 113
Farmers', Etc. Bank v. Evans,
4 Barb. (N. Y.) 487 77
Farmers' Nat. Bank v. Braden,
145 Pa. St. 473. . 292
Farmers' Nat. Bank v. Snod-
grass, 29 Oreg. 395. 208
Farmers' Supply Co. v. Weiss,
115 Minn. 428. . 113, 171
Farmington v. Hobert, 74 Me.
416. . . . 35S
Farnham v. Monroe, 35 111. App.
114 Ill
Farnum v. Blackston, 1 Sumner
(U. S.) 46 28
Farrar v. United States, 5 Pet.
(U. S.) 373 74, 260, 276, 302
Farrell v. Maxwell, 28 Ohio St.
283 382, 383
Farrelly v. Schaettler, 143 App.
Div. (N. Y.) 273 177
Father Matthew Soc. v. Fitzwil-
liams, 84 Mo. 407 61
Faulkner v. Gilbert, 57 Neb.
544. ... 341
Faurot v. Gates, 86 Wis.
569 196, 197
TsLUSt V. Rodelheim, 77 N. J. L.
740 36
Sec.
Faurote t. State, 110 Ind.
463 79
Favorite v. Stidham, 84 Ind.
423 36
Fawcett v. Freshwater, 31 Ohio
St. 637. . . 46
Fay V. Edmiston, 25 Kan. 439-. 321
Fay V. Smith, 1 Allen, 477 107
Fay V. Taylor, 11 Mete. (Mass.)
529 261
Pay V. Tower, 58 Wis. 286-.... 114
Fayette Title & Trust Co. v.
Maryland, B. & W. V. T. & T
Co. (U. S. C. C), 180 Fed. 928 67
Fears v. Story, 131 Mass. 47-. 377
392, 396
Federal Union Surety Co., Matter
of, 73 Misc. E. (N. Y.) 28 274
Pehr Brewing Co. v. Mullican,
23 Ky. Law Rep. 2100 141
Fellows v. Prentiss, 3 Denio 512 122
Felton v. Bissel, 25 Minn. 20... 196
Fergus Falls v. Illinois Surety
Co. (Minn 1910), 128 N. W.
820. . ...101, 112, 112b, 112c, 112d
Fernau v. Butcher, 113 Pa. St.
292. . . . 215
Ferry v. Bobbins (U. S. C. C),
122 Fed. 725. 233, 235a
Ferst V. Blackwell, 39 Fla. 621- • 341
348, 352
Fetrow v. Wiseman, 40 Ind. 148 24
Fewlass v. Keesham, 88 Fed.
573. . . . 306
Fidelity & Casualty Co. v. Law-
lor, 66 Minn. 144. 382
Fidelity & Deposit Co. v. Agnew.
152 Fed. 955. . 112a 112d
Fidelity & Deposit Co. v. Buck-
ley (N. H. 1910), 77 Ala. 402. 174
Fidelity & Deposit Co. v. Flem-
ing, 132 N. C. 332. 308
Fidelity & Deposit Co. v. Rob-
ertson, 136 Ala. 379. 144a
Fidelity Mutual Life Assn. v.
Dewey, 83 Minn. 389. ... 72, 297a
492
Table of Cases.
Sec.
Fidelity Mutual Life Ins. Co. v.
Stegall, 27 Okla. 151 . 45
Fidler v. Hershy, 90 Pa. St.
363 146
Field V. Brokaw, 148 111. 654.. 134
Field V. Burr Brewing Co., 18 N
Y. Supp. 456. . . 30
Field V. Holland, 6 Cr. 8 97
Field V. Marsh, 85 111. App. 1G4. 348
Field V. Newspaper Co., 21 La.
Ann. 24 16
Field V. Wallace, 89 Iowa 597. . 333
Files V. Davis (U. S. C. C), 119
Fed. 1002.. . . 222
Filon V. Brewing Co., 38 N. Y.
St. R. 602. . . 28
Findley v. Bank, 2 McLean, 44. . 95
Findley v. Findley, 42 W. Va.
372. . . . 261
Finney v. Cowdon, 86 111. 78. . • • 77
Firestone v. Rice, 71 Mich. 377 323
First National Bank v. Bean,
141 Wis. 476. . . 341
First National Bank v. Briggs'
Assignees, 69 Vt. 12 70
First National Bank v. Burns
(Civ. App. 1910), 126 S. W. 34 51
First National Bank v. Carpen-
ter Stibbs & Co. 41 Iowa 518. . 26
First National Bank v. Currie,
147 Mich. 72. . . 113
First National Bank v. Davis, 87
Mo. App. 242. . 113, 151
First National Bank v. Fidelity
& Deposit Co. of Maryland,
145 Ala. 335. . 112a, 112d
First Nat. Bank \\ Finck, 100
Wis. 446. 21
First National Bank v. Gaddis,
31 Wash. 596 374
First National Bank v. Gaines,
87 Ky. 597. . . 438
First Nat. Bank v. Gerke, 68
Md. 449. . . . . ..66, 67, 72
First Nat. Bank v. German
Bank, 107 Iowa 543. . 336
Sec.
First National Bank v. Good-
man, 55 Neb. 418. 100
First National Bank v. Green-
ville Oil and -Cotton Co., 24
Tex. Civ. App. 645 398
First National Bank v. Johnson,
133 Mich. 700. . .. 37, 126, 141
First National Bank v. Jones, 92
Wis. 36. . . 37
First National Bank v. Kittle
(W. Va. 1911), 71 S. E. 109... 128
First Nat. Bank v. Leavitt, 65
Mo. 562 121, 122
First Nat. Bank v. Martin, 81
Kan. 794 238
First National Bank v. Parsons,
45 W. Va. 688 114, 130, 134
First National Bank v. Rusk,
Pine Ice Co. (Tex. Civ. App.
1911), 136 S. W. 891 113
First Nat. Bank of Victoria v.
Skidmore, Civ. App. 1895), 30
S. W. 564. . 171
First National Bank v. Story,
200 N. Y. 346. 359
First National Bank v. Story,
131 App Div. (N. Y.) 472 359
First National Bank v. Swink,
129 N. C. 225. . 113
First National Bank v. Taylor
(Utah 1911), 114 Pac. 529.341, 357
First National Bank v. Wells, 98
Mo. App. 573. . 113a
First Nat. Bank v. Whitman, 66
111. 33 . . 118
First National Bank v. Willem,
65 Neb. 242. . . 128, 152
First Nat. Bank v. Winchester
119 Ala. 168 30, 35
First National Bank v. Wunder-
lick, 145 Wis. 193. 354
Fischer v. Garther, 32 Oreg. 101 196
197
Fish V. Glover, 154 111. 86 145
Fish V. Hutchinson, 2 Wils. 94. 39
Fish V. Stowe, 6 Dak. 35 362
Table of Cases.
493
Sec.
Fisher v. Fallows, 5 Esq. 171.. 406
Fisher v. Lutz, 146 Wis. 664 386
Fisher v. Shattuck, 17 Pick.
(Mass.) 252. . 136
Fitch V. State, 2 Nott & M. (S.
C.) 588. . . 431
Fitzgerald v. Morrissey, 14 Neb.
198. . . 377, 381, 392, 393, 396
Flagg V. Giltmaker, 98 111. 293- • 11
Flanagan v. Post, 45 Vt. 246 -.3, 203
Flannery v. Chidgey, 33 Tex.
Civ. App. 638. . 374
Fleece v. State, 25 Ind. 384 431
Fleenor v. State, 58 Ind. 166 434
Fleming v. Shockley, 8 Ga. App.
229, 68 S. E. 1013 415
Flentham v. Steward, 45 Neb.
640 348
Fletcher v. Austin, 11 Vt. 447 • • 54
Fletcher v. Grover, 11 N. H.
368 22, 198
Fletcher v. Jackson, 23 Vt.
581. . . . ... .187, 196, 200, 201
Flint V. Land Co., 89 Me. 420- • 387
Flynn v. Hudd, 27 111. 323.. 119, 171
Flynn v. Ins. Co., 115 Mass. 449. 358
Foerderer v. Moors, 91 Fed.
476. ... 362, 364
Fobs V. Rain, 39 Misc. R. 316- • 324
Follansbee v. Johnson, 28 Minn.
311 12
Folman v. Siler, 132 Ala. 297- ■ . 126
Fonda v. Van Home, 15 Wend.
(N. Y.) 631. . 24
Fond du Lac v. Moore, 58 Wis.
170 27
Foot V. Sabin, 19 Johns. 154 26
Forbes v. Harrington, 171 Mass.
386. . . . 260
Forbes v. McHugh, 152 Mass.
412. . . . 256
Forbes v. Thorpe, 209 Mass. 570 379
Ford V. Keith, 1 Mass. 139.. 178, 185
Ford V. Williams, 13 N. Y.
584. . . . 219, 231
Sec.
Forest's Oil Co. Appeal, 118 Pa.
St. 138. . . 158
Forgarty v. Finlay, 10 Cal. 239. 336
Fornes & Co. v. Wright, 91 Iowa
392. ... 26
Forrest v. White Sewing Mach.
Co. (Tex. Civ. App. 1902), 67
S. W. 340. . 51
Forrester V. Steele, 46 Md. 154. 259
Forrester v. Vason, 71 Ga. 49-. 264
Fortney v. Commonwealth, 140
Ky. 545 413, 434
Forty Acre Spring Live Stock
Co. V. West Texas Bank &
Trust Co. (Civ. App. 1908),
111 S. W. 417 30
Fossett V. State, 43 Tex. Cr.
App. 117 423
Foster v. State, 27 Tex. 236. 431
Foster v. Wise, 46 Ohio St. 20- ■ 247
Fourth Nat. Bank of Cincinnati
V. Mayer, 100 Ga. 87 171
Fowler v. Brooks, 13 N. H.
240 35, 46, 89, 118
Fowler v. Strickland, 107 Mass.
552. . . . 186
Fox V. Parker, 44 Barb. (N. Y.)
541. . . . 116
Fox V. Rural Home Co., 90 Hun
(N. Y.) 365. . . 28
Foxworth V. Bullock, 44 Miss.
457 92
Francis v. Northcote, 6 Tex. 185 258
Frank v. Kuhlmann, 63 Misc. R.
(N. Y.) 334. . Ill
Frank v. Snow, 6 Wyo. 42 171
Frank Feho Brewing Co. v. Mul-
lican, 23 Ky. Law Rep. 2100- . 287
Franklin v. Thurler, 1 Cow. (N.
Y.) 427. . . 408
Franklin Bank v. Cooper, 36 Me.
179 140, 141, 287, 288
Franklin Bank v. Stevens, 39
Me. 532, 542 140, 288
Fransioli v. Thompson (Wash.
1909), 104 Pac. 278 .100, 101
494
Table of Cases.
Sec.
Fraser v. Little, 13 Mich. 195- 74
Frazer v. Frazer, 25 Ky. Lav-
Rep. 473. . . . 243
Freakley v. Fox, 9 Bain. & Cr.
130 251
Frederick v. Moore, 13 B. Mon.
(Ky.) 478. . . 262
Freedman v. Vallie (Tex. Civ.
App. 1903), 75 S. W. 322.. 259, 263
Freeholders v. Wilson, 16 N. J.
L. 110 328
Freeman v. Berkey, 45 Minn. 438 112
Freeman v. Brewster, 93 Ga. 648 267
Freeman v. Cherry, 46 Ga. 14.. 206
Freeman v. Creech, 112 Mass.
180 217
Freestour v. Rice, 71 Mich. 377 323
Freeman v. State, 112 Ga. 648.. 433
Freese v. Brownell, 35 N. J. L.
285 185
French v. Dauchy, 57 Hun (N.
Y.) 100 271
Fretwell v. Carter, 88 S. C. 553 134
Freudenstein v. McNier, 81 111.
208 322
Fribeig v. Donovan, 23 111. App.
58 168
Frick Co. v. Hoff, 26 S. D. 360. . 35
36
Fridge v. State, 3 Gill & J. (Md.)
103 59, 266
Friend v. Rolston, 35 Wash. 422 65
Frierson v. Williams, 57 Miss.
451 93
Frink v. Peabody, 26 111. App.
300 208
Frink v. Southern Express Co.,
82 Ga. 33 183, 319
Fritch V. Citizens' Bank, 191 Pa.
St. 283 2a
Frith V. Sprague, 14 Mt-ss. 455 190
Fritts V. Krickdorfer (Ky. 1910),
124 S. W. 882 144a, 197
Fritz V. Monakad, 135 App. Div.
(N. Y.) 689 361
Frohlichstein v. Jordan, 138 Ala.
310 334
Sec^
Frost V. Carter, 1 Johns. Cas. 73 &
Frost V. Mixsell, 38 N. J. Eq. 586 98
Frothingham v. Haley, 3 Mass.
168 6-
Frownfelter v. State, 66 Md. 80. 307
337
Ft. Wayne & C. Co. v. Deane, 10
Ind. 563 61
Fullam V. Valentine, 11 Pick.
(Mass.) 156 121
Fuller V. Cushman, 170 Mass. 286 242-
Fuller V. Leonard, 27 La. Ann.
635 15
Fuller V. Morris, 4 Gray (Mass.)
295 298
Fuller V. Scott, 8 Kan. 25... 32, 41
341, 347
Fuller V. Tomlinson, 58 Iowa
111 364
Fullerton v. Sturges, 4 Ohio St.
529 57
Fullerton Lumber Co. v. Gates,
89 Mo. App. 201 ..101, 112b, 112c
Fulman v. Seitz, 68 Pa. St. 237. . 362
Fulton V. Matthews, 15 Johns.
(N. Y.) 433 46
Fulton V. State, 14 Tex. App. 32 419
Furbish v. Goodman, 98 Me. 296 392'
Furnas County v. Evans, 90 Neb.
37 318
Furst V. Black, 111 Ind. 308 353
Furst & Bradley Mfg. Co. v.
Black, 111 Ind. 308 348
Fuselier v. Babineau, 14 La.
Ann. 777 198
Fusz V. Trager, 39 La. Ann.
292 223
G.
Gaddy v. Witt (Tex. Civ. App.
1911), 142 S. W. 926 126
Gagan v. Stevens, 4 Utah 348.. 2
Gage V. Bank, 79 111. 62 353
Galbraith v. Fullerton, 53 111.
126 114, 115
Gale V. Harp, 64 Ark. 462 381
Gallagher v. McBride, 66 N. J. L.
360 381
Table of Cases.
49&
Sec.
Gallagher v. People, 91 111. 590 423
Galson v. Brand, 75 III. 148.. 3
196, 203
Gamble v. Cuneo, 21 App. Div.
413 C7
Gamble v. Cuneo, 162 N. Y. 634 . . 67
Gammell v. Parramore, 58 Ga.
54 353
Gandy v. Gandy, 30 Ch. Div. 57 . • 12
Ganey v. Hohlman, 145 111. App.
467 102
Gannard v. Eslava, 20 Ala. 732. . 160
Gano V. Farmers' Bank of Ken-
tucky, 103 Ky. 508 45
Gans V. Carter, 77 Md. 1 34
Ganser v. Ganser, 83 Minn. 199 257
Gansey v. Orr, 173 Mo. 532 374
Ganssen v. United States, 97 U.
S. 584 312
Garber v. Commonwealth, 7 Pa.
St. 265 251
Gardiner v. Harback, 21 111. 128 100
Gardner v. Lloyd, 110 Pa. St.
278 348
Gardner v. Miller, 19 Johns. (N.
Y.) 188 252
Gardner v. Walsh, 5 El. & Bl.
82 110
Gardner v. Watson, 13 111. 347. . 119
228
Gardner v. Watson, 76 Tex. 25. . 356
Garibaldi v. Cagnoni, 6 Mod. 266 405
Garland v. James, 73 Conn. 662 341
Garrett v. Reese, 99 Ga. 494 259
Garrett & Williams v. Hamill,
131 N. C. 57 374
Garver v. Tissinger, 46 Ohio St.
56 278
Garvey v. United States Fidelity
& Guaranty Co., 77 App. Div.
(N. Y.) 391 258
Garvin v. Garvin, 27 S. C. 472.. 163
Gass V. Smith, 6 Gray (Mass.)
112 131, 216
Gass V. Williams, 46 Ind. 253.. 215
220
Gasscock v. Hamilton, 62 Tex.
143 133
Sec.
Gates v. Hughes, 44 Wis. 332... 21
Gates V. McKee, 13 N. Y. 232.. 354
355
Gates V. Morton Hardware Co.,
146 Ala. 692 2
Gates V. Tebbetts, 83 Neb. 573.. 93a
Gay V. Hudson River Electric
Power Co. (U. S. C. C), 190
Fed. 773 28
Gay V. Hultz, 56 Mich. 153 77
Gay V. Ward, 67 Conn. 147. .367, 368
General Steam Nav. Co. v. Rolt,
6 C. B. N. S. 550 67, 103, 138
George v. Andrews, 60 Md. 26.. 11
George v. Crim, 66 W. Va. 421. . 95
Gerber v. Sharp, 72 Ind. 553.158, 163
German-American Bank v. Auth,
87 Pa. St. 419 80, 285, 316
German-American Sav. Bank v.
Fritz, 68 Wis. 390 163
German Congregation, 47 Md.
177 102
German Savings & Loan Soc. v.
Kern, 42 Oreg. 532 224
German Savings Bank v. Drake
Roofing Co., 112 Iowa 184.348, 355
German Savings Inst. v. Vahl,
28 111. App. 557 123
Germantown Trust Co. v. Whit-
ney, 19 So. Dak. 108 438
Getchell & Martin Lumber &
Mfg. Co. V. Peterson, 124 Iowa
599 74, 443, 444
Getty V. Schantz, 101 Wis. 229 • ■ 359
360
Gibbs V. Blanchard, 12 Mich. 292 399
Gibbs V. Johnson, 63 Mich. 671 54
129
Gibson v. Farley, 16 Mass. 280. . 246
Gibson v. Mitchell, 16 Fla. 519. . 201
Gibson v. Ogden, 100 Ind. 20- ■• 120
171
Gibson v. Patterson, 75 Ga. 549 32
Gibson v. Robinson, 91 Ga. 756 243
Gibson v. Shehan, 5 App. Dist.
Col. 391 208
Gibson v. United States, 8 Wall.
(U. S.) 269 314
496
Table of Cases.
Sec.
Giegrich v. People, 34 111. 448.. 411
Gieseke v. Johnson, 115 Ind. 308 183
186
Giffin V. Long, 96 Ark. 268 37
Gilbank v. Stephenson, 30 Wis.
155 27
Gilbert v. Adams, 99 Iowa 519. . 152
Gilbert v. American Surety Co.,
121 Fed. 499 238
Gilbert v. Henck, 30 Pa. St. 205 4
Gilbert v. Neely, 35 Ark. 24 157
Gilbert v. Vail, 60 Vt. 261, 266. . 6
Gilbert v. Wiman, 1 N. Y. 550.. 230
Giles V. Brown, CO Ga. 658 242
Gill V. Ferrin, 71 N. H. 421 387
Gillen v. Peters, 39 Kan. 489... 20
Gillespie v. Torrance, 25 N. Y.
306 144
Gillett V. Wiley, 126 111. 310.. 259
265
Gillighan v. Boardman, 29 Me.
79 342
Gillinan v. Strong, 64 Pa. St. 24 321
Gillispie v. See, 72 Iowa 49 264
Gilmer v. Baker, 24 W. Va. 72- . 255
Girdley v. Capen, 72 111. 11 76
Givens v. Gridley, 32 Ky. Law
Rep. 825 2b
Glascock V. Hamilton, 62 Tex.
166 202
Glasgow V. State, 41 Kan. 333.. 423
Glenn v. Magan, 23 W. Va. 467. . 115
Glenn v. Lehnen, 54 Mo. 45- .342 388
Globe Bank v. Small, 25 Me. 366 349
Globe Printing Co. v. Bickle, 73
Mo. App. 499 348
Glyn V. Hertel, 8 Taunt. 208 362
Goble V. Simeral, 67 Neb. 276.. 263
Godden v. Pierson, 42 Ala. 370. . 372
Goetz V. Foos, 14 Minn. 265.382, 383
Gold V. Johnson, 59 111. 63 224
Goldberg v. Sisseton Loan &
Title Co., 24 So. Dak. 49 282
Goltra V. People, 53 111. 224 253
Gonser v. State (Ind. App.), 65
N. E. 764 302
Good V. Martin, 95 U. S. 90 347
Sec.
Good V. Martin, 2 Colo. 218 347
Goodall V. Wentworth, 20 Me.
322 22
Goodloe V. Clay, 6 B. Mon. (Ky.)
230 208
Goodman v. Litaker, 84 N. C. 8. . 171
Goodwin v. Kent, 201 Pa. St. 41 38
Goodwin v. Simonson, 74 N. Y.
133 146
Goodwin v. State, 81 Ind. 109.. 303
Goodyear Dental Vulcanite Co.
V. Bacon, 151 Mass. 460... 52, 54
Gookin v. Hoit, 3 N. H. 392.... 258
Gordon v. Calvert, 4 Russ. 581 85
Gordon v. Funkhouser, 100 Va.
675 26
Gordon v. Rixey's Adm'r, 86 Vt.
853 202
Gorgan v. School District, 4
Colo. 53 84
Gorham v. Keyes, 137 Mass. 583 38
Goshen v. Smith, 173 N. Y. 597 301
Goshen v. Smith, 61 App. Div.
(N. Y.) 461 301, 302
Goss V. Gibson, 8 Humph.
(Tenn.) 197 213
Gosserand v. LaCour, 8 La. Ann.
75 133
Gotzian & Co. v. Heine, 87 Minn.
429 130
Gould V. Gould, 8 Cow. (N. Y.)
168 176, 187
Gould V. State, 2 Penn. (Del.)
548 323
Gourdin v. Trenholm, 25 S. C.
362 198
Governor v. Dodd, 81 III. 162 329
Governor v. Edwards, 4 Bibb.
(Ky.) 219 325
Governor v. Fay, 8 La. Ann. 490 413
Governor v. Montfort, 1 Iredell
L. (N. C.) 155 328
Governor v. Ridgway, 12 111. 14 329
Governor v. Wise, 1 Cranch 142 325
Gowing V. Gowgill, 12 Iowa 495 334
Grace, In re, 71 Law J. Ch. 358 368
Gradle v. Hoffman, 105 111. 147 292
Table of Cases.
497
Sec
Grady v. Hughes, 80 Mich. 184. . 258
Graff V. Kahn, 18 111. App. 485. . 144
Grafton v. Hinley, 111 Iowa 46. . 65
Grafton Bank v. Kart, 4 N. H.
221 171
Graham v. City of Baxley, 117
Ga. 42 301
Graham v. Marks, 98 Ga. 67 32
Graham v. Rush, 73 Iowa 451.. 146
Graham v. Selover, 59 Barb. (N.
Y.) 313 90
Graham v. State (Ark. 1911), 140
S. W. 735 321
Granger v. Boswinkle (Ind. App.
1911), 96 N. E. 268 334
Granite Bldg. Co. v. Saville's
Adm'r, 101 Va. 217 144a, 393
Grant v. Smith, 46 N. Y. 95 Ill
Grant v. Wolf, 34 Minn. 32 398
Grasser & Brand Brewing Co. v.
Rogers, 112 Mich. 112 97
Grauman, Marx & Kline Co. v.
Krienitz, 142 Wis. 556 24
Graves v. Bank, 10 Bush (Ky.)
23 88, 126, 287
Graves v. Bulkeley, 25 Kan. 249 321
Graves v. Smith, 4 Tex. Civ.
App. 537 200
Gray v. Bennett, 3 Met. (Mass.)
522 6
Gray v. Commonwealth, 100 Ky.
645 423
Gray v. Cook, 3 Houst. (Del.) 49 407
Gray v. Davis, 89 Mo. App. 450. . 67
Gray v. Kerr, 33 Mo. 159 233
Gray v. Murphy, 134 Mo. 98 54
Gray v. Perkins, 12 Smedes & M.
(Miss.) 622 220
Gray v. School Dist. of Norfolk,
35 Neb. 438 138
Gray v. State, 78 Ind. 68 59, 60
Gray v. Strickland, 163 Ala. 344 414
Gray v. Wood, 67 Conn. 147 306
Grayson's Appeal, 108 Pa. St.
581 113
Graziani v. Commonwealth, 30
Ky. Law Rep. 119 67, 69
32
Sec.
Greater v. De Wolf, 112 Ind. 1 74
224
Great Falls v. Hanks, 21 Mont.
83 306
Greely v. Dow, 2 Met. 176 114
Green v. Burton, 59 Vt. 423 392
Green v. Crosswell, 10 Ad. & E.
453 •• 382, 383, 406
Green v. Kindy, 43 Mich. 279 ■ ■ 54
Green v. May (Ky. C. A. 1912),
147 S. W. 428 48a
Green v. Raftes, 67 Ind. 49 224
Green v. Shepherd, 5 Allen 589 36
Green v. Wardwell, 17 111. 278.. 304
Green v. Young, 8 Me. 14 85, 306
345
Green Bay & M. R. R. Co. v.
Union Steamboat Co., 107 U.
S. 98 31
Greene v. Bates, 74 N. Y. 333. . . 122
Greene v. Dodge, 2 Ohio 231 353
Greenfield Lumber & Ice Co. v.
Parker, 159 Ind. 571 112
Greenville, City of. Council of
V. Ormand, 51 S. C. 121 67
Greenwell v. Commonwealth, 78
Ky. 320 325
Greenwich Bank v. Oppenheim,
133 App. Div. (N. Y.) 586..-. 389
Greenwood v. Frances (1899), 1
Q. B. 312 113
Greer v. McNeal, 11 Okla. 519,
526 .". 243, 247, 253
Gregg V. Currier, 36 N. H. 200- • 246
Gregory v. Cameron, 7 Neb. 414 54
Gregory v. Leigh, 33 Tex. 813.. 246
Gridley v. Capen, 72 111. 13 339
Grieb v. Northrup, 66 App. Div.
(N. Y.) 86 324
Grier v. Flitcraft, 57 N. J. Eq.
556 113, 134, 170, 171
Grier v. Irwin (Iowa, 1909), 86
W. W. 273 352
Griffin v. Cunningham, 183 Mass.
505 385
Griffin v. Hoag, 105 Iowa 499.. 392
498
Table of Cases.
Sec
Griffin v. Long, 96 Ark. 26S 2a
Griffin v. Long (Ark. 1910), 131
S. W. 672 174
Griffin v. Moore, 2 Ga. 331 412
Griffith V. Sitgraves, 90 Pa. St.
161 32, 136
Grimm v. School Dist., 51 Pa. St.
219 54
Gring's Appeal, 89 Pa. St. 336.. 338
Griswold v. Frank, 22 Ohio St.
90 244
Griswold v. Hazels, 62 Neb.
888 66, 67, 224
Grocer's Bank v. Kingman, 16
Gray (Mass.) 473-72, 286, 293, 298
Grommes v. Trust Co., 147 111.
634 Ill
Gross V. Bouton, 9 Daly (N. Y.)
25 226
Gross V. Davis, 87 Tenn. 226.. 196
197, 200, 202
Grove Improvement Co. v. Title
Guaranty & Surety Co. (Ind.
App. 1912), 98 N. E. 373 144a
Grover v. DuBois, 1 Term R. 212 394
Guardian v. Ghio, 92 Tex. 651- . 441
Guardianship of Fardette, 86
App. Div. (N. Y.) 50 259
Guardian Trust Co. v. Peabody,
195 N. Y. 544 93a, 356
Guardian Trust Co. v. Peabody,
122 App. Div. (N. Y.) 648. .93a, 356
Guernsey v. Marks (Oreg. 1910),
106 Pac. 334 174, 182
Guild V. Butler, 127 Mass. 386.. 130
171
Guild V. Butler, 122 Mass. 498. . 92
Guild V. Conard (1894), 2 Q. B.
885 382
Gunn V. Barry, 15 Wall. (U. S.)
610 161
Gunn V. Geary, 44 Mich. 615 66
Gustine v. Bank, 10 Rob. (La.)
412 95
Gwynne v. Burnell, 7 CI. & F.
572 69, 307, 337
H. Sec.
Habershaw v. Sears, 11 Oreg.
431 325
Hackett v. Watts, 138 Mo. 502. . 152
Hadaway v. Hynson, 89 Md. 305 30
Hadley v. Ewings, 4 Bibb. (Ky.)
505 405
Hagadorn v. Stronack, 81 Mich.
56 381
Hagan v. Mounts, 3 Blackf.
(Ind.) 57 179-
Hagey v. Hill, 75 Pa. St. 108 116
Haight V. Brisbin, 100 N. Y. 219 242
Haigler v. Adams, 5 Ga. App.
637 100, 112a
Haines v. Dennett, 11 N. H. 180 109
Haines v. Hein, 67 App. Div. (N.
Y.) 389 438
Hale V. Dresser, 73 Minn. 277.. 341
Hale V. Wetmore, 4 Ohio St. 600 157
Hall V. Alford, 105 Ky. 664. .385, 391
Hall V. Cole, 71 Ark. 601 257
Hall V. Cresswell, 12 Gill & J.
(Md.) 36 164
Hall V. Fariner, 5 Denio (N. Y.)
484 347
Hall V. Hall, 34 Ind. 314 22, 167
Hall V. Hall, 10 Humph. (Tenn.)
352 176
Hall V. Hoxey, 84 111. 616 l32
Hall V. Johnson Hill & Co., 6
Tex. Civ. App. 110 20
Hall V. Long, 56 Ala. 93 20, 21
Hall V. Nash, 10 Mich. 303 182
Hall V. Oberhellman, 23 Mo.
App. 336 14
Hall V. Ochs, 34 App. Div. (N.
Y.) 103 30, 345
Hall V. Parker, 39 Mich. 287 52
Hall V. Parker, 37 Mich. 590 48
Hall V. Presnell (N. C. 1911), 72
S. E. 985 113
Hall V. Smith, 5 Plow. (U. S.)
96 177
Hall V. Smith, 14 Bush. (Ky.)
604 51
Hall V. Tierney (Minn.), 95 N.
W. 219 301, 304
Table of Cases.
499
Kec.
Hall V. Weaver, 34 Fed. 104 3a
Hall V. White, 27 Conn. 488 405
Hall V. Williamson, 9 Oliio St.
17 232
Halliday v. Hart, 30 N. Y. 474- • 114
Hallock V. Yankey, 102 Wis. 41 113
133
Halsey v. Murray, 112 Ala. 185. .194a
Halshutt V. Pegram, 21 La. Ann.
722 190
Ham V. Greve, 34 Ind. 18.. 126, 140
141
Hamaker v. Eberly, 2 Binn.
(Pa.) 506, 510 341
Hamblen v. Knight, 60 Tex. 36. . 100
Hamilton v. Bell, 123 Cal. 93.. 213
215
Hamilton v. Dunblee, 1 N. H.
172 412
Hamilton v. Hooper, 46 Iowa
515 110
Hamilton v. Johnson, 82 111. 39 10
169
Hamilton v. Watson, 12 CI. & F.
109 126, 140
Hamlin v. Drummond, 91 Me.
175 385
Hammell v. Beardsley, 31 Minn.
314 2
Hammon v. State, 38 Ind. 32... 431
Hammond v. Beasley, 15 Lea
(Tenn.) 618 262
Hammond v. Johnson, 20 111. 367 339
Hampshire Bank v. Fillings, 17
Pick. (Mass.) 87 224
Hampton v. Phipps, 108 U. S.
260 12, 151
Hance v. Miller, 21 111. 636 349
Hancock v. Bank of Tifton, 6
Ga. App. 678 93a
Hancock v. Hazzard, 12 Cush.
(Mass.) 112 316
Handley v. Barrows, 68 Mo. App.
623 102
Handley v. Heflin, 84 Ala. 600. . 201
Hand Mfg. Co. v. Marks, 56 Or.
523 138, -308
Sec.
Haney v. People, 12 Colo. 345.. 32
Hanley v. Filbert, 73 Mo. 34 59
Hanna v. Petroleum, 23 Ohio St.
622 240
Hannay v. W. L. Moody, 31 Tex.
Civ. App. 88 42
Hanner v. Douglass, 4 Jones Eq.
(N. C.) 263 163
Hansen v. Rounsavell, 74 111.
238 97
Hansford v. Perrin, 6 B. Mon.
(Ky.) 595 214
Hanson v. Crowley, 41 Ga. 303. . 109
Hanson v. Nelson, 82 Minn. 220 374
Harbin v. State, 78 Iowa 263.. 431
436
Harbord v. Cooper, 43 Minn. 466 357
Harbough v. Albertson, 102 Ind.
69 62
Harburg India Rubber Comb.
Co. V. Martin, 71 Law J. K. B.
529 389
Harden v. Carroll, 90 Wis. 350. .194a
Hardin v. Carrico, 3 Met. (Ky.)
261 332
Harding v. Tifft, 75 N. Y. 461.. 96
Hardt v. Becknagel, 62 App.
Div. (N. Y.) 106 381
Hare v. Grant, 77 N. C. 203 188
Hare v. Marsh, 61 Wis. 435 227
Hargis v. Begley, 33 Ky. Law
Rep. 1020 428
Hargis v. Fidelity Mutual Life
Ins. Co., 29 Okla. 195 45, 49
Hargraves v. Lewis, 3 Ga. 162 . . 185
Hargraves v. Parson, 13 Mees. &
W. 500, 561 374, 385
Hargreaves v. Smee, 6 Bing. 244 356
Harker v. Trick, 1 N. J. Eq.
269 251. 252
Harkins v. Lombard, 16 Me. 140 54
Harley v. Stapleton, 24 Mo. 248 177
Harmon v. Hale, 1 Wash. Terr.
422 171
Harms v. McGormick, 132 111.
104 358
500
Table of Cases.
Sec.
Harney v. Laurie, 13 111. App.
400 366
Harp V. Osgood, 2 Hill (N. Y.)
216 416
Harper v. Fairley, 53 N. Y. 442 90
Harper v. Tahourdin, 6 M. &
Sel. 383 27
Harper's Adm'r v. McVeigh's
Adm'r, 82 Va. 751 174
Harris v. Brooks, 21 Pick.
(Mass.) 195 51, 147
Harris v. Fawcett, L. R. 15 Eq.
311 346, 368
Harris v. Ferguson, 2 Bailey L.
(S. C.) 397 196, 203
Harris v.' Frank, 29 Kan. 200-. 163
Harris v. Harris, 180 111. 157-. 41
Harris v. Hayes, 171 Mass. 275 408
Harris v. Huntback, 1 Bur. 373 380
Harris v. Kansas Elevator Co.,
66 Kan. 372 224
Harris v. Taylor, 150 Mo. App.
291 66, 67a, 93a, 112a
Harris v. Taylor, 3 Sneed
(Tenn.) 536 240
Harris v. Vendbly, L. R. 7 Exch.
235 341
Harris v. Warner, 13 Wend. (N.
Y.) 400 165
Harrisburg v. Guiles, 192 Pa. St.
191 292
Harrison v. Birrell, 58 Oreg. 410 396
Harrison v. Clark, 87 N. Y. 572 • . 243
Harrison v. Lane, 5 Leigh (Va.)
414 3
Harrison v. Wilkin, 69 N. Y. 412 59
Harsh v. Klepper, 28 Ohio St.
200 107
Hart V. Bank of Russellville, 32
Ky. Law Rep. 338 19
Hart V. Clouser, 30 Ind. 210 107
Hart V. Poor Guardians, 81%
Pa. St. 466 317
Hart V. Strubling, 21 Fla. 136.. 261
Hart V. United States, 95 U. S.
316 314
Harter v. Miller, 67 Kan. 468.. 259
Sec.
Harter v. Moore, 5 Blackf.
(Ind.) 367 179
Hartington v. Dennis, 13 Mass.
92 414, 429, 431
Hartley v. Colquitt, 72 Ga. 351- . 426
Hartley v. Sandford, 66 N. J. L.
627 374, 381, 382
Hartwell v. Smith, 15 Ohio St.
200 168
Hartwell & Richards Co. v.
Moss, 22 R. I. 583 363
Hartzell v. Commonwealth, 42
Pa. St. 453 244
Harvey v. Bank, 56 Neb. 320.356, 363
Harvey v. Drew, 82 111. 606 200
Harwood v. Kiersted, 20 111.
App. 367 42
Hasteltine v. Guild, 11 N. H. 390 189
Hatch v. Hobbs, 12 Gray 477 • ■ . • 354
Hatch V. Norris, 36 Me. 419 22
Hately v. Pike, 162 111. 241 17
Hatfield v. Merod, 82 111. 103.. 160
193
Haubert v. Kraus, 4 Phil. 119- • 123
Hauglesben v. People, 89 111.
164 434
Haupt V. Cravens & Co., 56 Tex.
Civ. App. 253 49
Haupt V. Vint, 68 W. Va. 657-28, 30
Hauser v. Farmers' Supply Co.,
6 Ga. App. 102 30
Haven v. Chicago Sash, Door &
Blind Mfg. Co., 96 HI. App. 92 35
Haven v. Foley, 18 Mo. 136 151
Haven v. Lathene, 75 N. C. 505 317
Havenstein v. Gillespie, 73 Miss.
742 266
Haverly v. Mercer, 78 Pa. St.
257 393
Havis V. State, 62 Ark. 500 426
Hawes v. Marchant, 1 Curt. 130 32
Hawker v. Moore, 40 W. Va. 49 338
Hawkes v. Phillips, 7 Gray
(Mass.) 284 347
Hawkins v. Kimball, 57 Ind. 45 244
Hawkins v. Western National
Bank (Tex. Civ. App. 1912),
145 S. W. 722 18
Table of Cases.
501
Sec.
Hawley v. United States Fidelity
& Guaranty Co., 184 N. Y. 549 70
445
Hawley v. United States Fidelity
& Guaranty Co., 100 App. Div.
(N. Y.) 12 70, 445
Haworth v. Crosby & Henshaw,
120 Iowa 612 126
Hayden v. Cabot, 17 Mass. 169- - 183
184
Hayes v. Cooper, 14 111. App. 490 144
Hayes v. Ford, 55 Ind. 52 212
Hayes v. Josephi, 26 Cal. 535-. 139
Hayes v. Wells, 34 Md. 512- .119, 363
Hays V. Fidelity & Deposit Co.,
112 Fed. 872 235a
Hays V. Housewright (Tex. Civ.
App. 1911), 133 S. W. 922- .178, 183
Hazard v. Griswold, 21 Fed. 178 32
Hazelton v. Douglas, 97 Wis. 214 259
Hazleton v. Valentine, 113 Mass.
472 177
Head v. Le\T, 52 Neb. 456 334
Heady v. State, 60 Ind. 316 253
Heard v. Lodge, 20 Pick. (Mass.)
53 65, 243
Hearne v. Heath, 63 Mo. 84. .182, 183
Heath v. Bank, 44 N. H. 174 58
Hedrick v. Robbins, 30 Ind. App.
595 101, 112b, 1126
Hefferlin v. Karlman, 29 Mont.
139 381, 398
Hefferlin v. Krieger, 19 Mont.
123 146
Heidenheimer v. Brent, 59 Tex.
533 311, 325
Helms Brewing Co. v. Flannery,
137 111. 309 30, 31
Held V. Burke, 83 App. Div. (N.
Y.) 509 76
Hellman v. City Trust, Safe De-
posit & Surety Co., Ill App.
Div. (N. Y.) 879 Il2e
Hellman v. Farrelly, 132 App.
Div. (N. Y.) 151 112e
Helms v. Society, 73 Ind. 325-. 78
Halt V. Whittier, 31 Ohio St. 475 228
Sec.
Henderson v. Coover, 4 Mo. 429 310
Hendricks v. Robinson, 56 Miss.
695 343
Hendry v. Cartwright, 14 N. M.
72 50, 52
Hendryn v. Evans, 120 Iowa
310 128, 132
Henricus v. Englert, 137 N. Y.
488 112, 358
Henry v. Coats, 17 Ind. 162 110
Henry County v. Salmon, 201
Mo. 136 309, 321a
Herendeen Mfg. Co. v. Moore, 66
N. J. L. 74 381
Herman v. Jeuchner, 15 Q. B.
Div. 561 416
Hern v. Nichols, 1 Salk. 289 315
Herrick v. Johnson, 11 Mete.
(Mass.) 26 54
Herrick v. Swartwout, 72 111.
340 224
Herrick's Minors, In re, 3 Ir.
N. S. 183 276
Herring v. Hoppock, 15 N. Y.
409 219, 231
Hersey v. Marty, 61 Minn. 430-. 324
Hess v. Rothschild, 34 Misc. R.
(N. Y.) 800 377
Hess v. Schaffner (Tex. Civ.
App. 1911), 139 S. W. 1024.120. l29
Hess's Estate, 150 Pa. St. 346-. 44
Hess's Estate, 69 Pa. St. 272 166.
Hesselgrave v. State (Neb.), 89
N. W. 295 433
Hesser v. Rowley, 139 Cal. 410 222
Hetfield v. Dow, 27 N. J. L. 440 399
Hetherington v. Hixon, 46 Ala.
297 191
Heustis V. Rivers, 103 Mass. 398 407
Hewitt, In re, 25 N. J. Eq. 210- - 156
Hibernian Bank v. Lacombe, 84
N. Y. 368 212
Hickbone v. Fletcher, 66 Me.
209 194a
Hickerson v. Price, 2 Heisk.
(Tenn.) 623 247.
502
Table of Cases.
Sec.
Hickman v. McCurdy, 7 J. J.
Marsh (Ky.) 555 198
Hicks V. Chouteau, 12 Mo. 341. . 27
Higgins V. Drucker, 22 Ohio Cir.
Ct. R. 112 67a
Higgins V. State, 87 Ind. 282 263
Highland Park Bank v; Sheahen,
149 III. App. 225.. 99, 113, 114, 121
Hightower v. Ogletree, 114 Ala.
94 146
Hightown v. Moore, 46 Ala. 387 85
Hellert v. Hained, 143 Ky. 3... 398
Hildreth v. State, 5 Blackf. 80- • 419
Hill V. Dunham, 7 Gray 543. .. . 48
Hill V. Hoeldtke (Tex. Sup.
1911), 142 S. W. 871 387
Hill V. Ragland, 24 Ky. Law
Rep. 1053 324
Hill V. Wright, 23 Ark. 530 11
Hill V. Wright, 144 Ky. 806 .... 378
Hilleburton v. Carter, 55 Mo.
435 212
Hillegas v. Stephenson, 72 Mo.
118 206
Hill Mercantile Co. v. Rotan
Grocery Co. (Tex. Civ. App.
1910), 127 S. W. 1080.... 348, 350
356, 362
Himrod v. Baugh, 85 111. 435 144
Hinckley v. Kreitz, 58 N. Y. 583 73
225, 229
Hindman v. Lewman, 23 Ky.
Law Rep. 179 65
Hineley v. IMargaritz, 3 Pa. St.
428 24
Hines v. Mullins, 25 Ga. 696- -59, 266
Hinton v. Odenheimer, 4 Jones
Eq. (N. C.) 406 406
Hirsch v. Carpet Co., 82 111. App.
234 341, 384
Hodge V. People, 78 111. App. 378 334
Hodges V. Gewin, 6 Ala. 478 232
Hodges V. State, 20 Tex. 493 417
Hodgson V. Baldwin, 65 111. 532 202
Hodgson V. Shaw, 3 Myl. & K.
183 130, 153, 178
Hoey V. Jarman, 39 N. J. L. 523 66
Sec.
Hoffman v. Fleming, 66 Ohio St.
143 257
Hoffman v. Habighorst, 49 Oreg.
379 11$
Hoffman v. Habighorst, 38 Oreg.
261 2
Hoggart V. Thomas, 35 La. Ann.
298 382
Hogshead v. Williams, 55 Ind.
145 114
Hogue V. Davis, 8 Gratt. (Va.)
4 210
Hogue V. State, 28 Ind. App. 285 301
Hoil V. Bailey, 58 Wis. 434 395
Holandworth v. Commonwealth,
11 Bush. (Ky.) 617 27
Holden v. Curry, 85 Wis. 504.65, 243
Holden v. Jones, 7 Ired. L. (N.
C.) 191 306
Holker v. Hennessy, 141 Mo. 527 323
Holland v. Colton State Bank,
20 S. D. 325 24
Holliday v. People, 10 111. (5
Gil.) 214 418, 420
Hollier v. Eyre, 9 Ch. & F. 1 170
Holliman v. Carroll, 27 Tex. 23. 324
Holliman v. Rogers, 6 Tex. 91. • 178
Hollinsbee v. Ritchey, 49 Ind.
261 173
Hollister v. Davis, 54 Pa. St. 508 144
Holm V. Jamieson, 173 111. 295. . 351
Holmes v. Chadbourne, 4 Me. 10 405
Holmes v. Day, 108 Mass. 563 • • 168
Holmes v. Rhodes, 1 Bos. & P.
638 182
Holmes v. Standard Oil Co., 183
111. 70 74, 327
Holmes v. State, 17 Neb. 73 53
Holmes v. Ward, 24 Barb. (N.
Y.) 546 183
Holmes v. Weed, 19 Barb. (N.
Y.) 128 11
Holmes v. Williams, 177 111. 386 361
3"4
Holt v. McLean, 75 N. C. 347 ... ■ 320
Holt Co. v. Scott, 53 Neb. 176- • 304
Table of Casew.
503
Sec.
Holthouse V. State (Ind. App.
1912), 97 N. E. 130. 77, 100, 110, 301
Homan v. Brinckerhoff, 1 Denio
(N. Y.) 184 221
Home V. Farrington, 82 N. Y.
121 127
Home Ins. Co. v. Gow, 59 Pa. St.
685 292
Home Ins. Co. v. Holway, 55
Iowa 571 60, 288
Home Nat. Bank of Chicago v.
Estate of Waterman, 134 111.
461 113
Home Savings Bank v. Traube,
75 Mo. 199 79
Homer v. Bank, 7 Conn. 484-. 151
Homes v. O'Conner, 9 Tex. Civ.
App. 454 253
Hood V. Hood, 85 N. Y. 561- .242, 244
Hood V. Mathis, 21 Nev. 308. 226, 228
Hook V. Riches'on, 115 111. 431.. 338
Hooker v. Russell, 67 Wis. 257- • 392
393
Hooper v. Hooper, 29 W. Va.
276 245
Hooper v. Hooper, 81 Md. 155.. 211
339, 356, 371
Hooper v. Pike, 70 Minn. 84- .35, 42
Hoover v. Epler, 52 Pa. St. 522 157
191
Hoover v. Mowser, 84 Iowa 42 • . 208
Hopewell v. McGrew, 50 Neb.
789 66, 67, 222
Hopkins v. Farwell, 32 N. H. 425 178
Hopkins v. Leek, 12 Wend. (N.
Y.) 105 347
Horan v. People, 10 111. App. 21 324
Hormel & Co. v. American
Bonding Co., 112 Minn. 288.. 144a
Horner v. Dipple, 31 Ohio St. 72 24
Horner v. Lyman, 4 Keyes (N.
Y.) 237 227
Horst V. Lewis, 71 Neb. 365 30
Horton v. Stone, 32 R. I. 499... 52
54, 56, 238
Hortsell v. State, 45 Ark. 59 431
Rosea v. Rowley, 65 Mo. 357.. 121
Sec.
Hosie v. Hart, 141 Mich. 679.. 65
Hoss V. Crouch (Tenn.), 48 S.
W. 724. . . . 130
Hotchkiss V. Barnes, 34 Conn.
27 354
Hotel Milton Co. v. Powell (Mo.
App. 1910), 123 S. W. 953.... Ill
Hotham v. Berry, 82 Kan. 412. 196
Houck V. Graham, 123 Ind. 277. 77
Houck V. Graham, 106 Ind. 195. 3
194a, 203
Hough V. Ins. Co., 57 111. 518.. 155
Houghton V. Freeland, 26 Grant
Ch. 500 316
Houghton V. Milburn, 54 Wis.
554 358
Housh V. People, 66 111. 178.65, 243
Houston V. Braden (Tex. Civ.
App.), 37 S. W. 467 99
Howard v. Fletcher, 59 N. H.
151. ... 93
Howard v. Smith, 91 Tex. 8... 350
Howard v. United States, 184 U.
S. 676 329
Howard County Com'rs v. Hill,
88 Md. Ill 66, 67, 285, 311
Howe V. Nichels, 22 Mo. 175-.. 45
348, 352
Howe V. Peabody, 2 Gray
(Mass.) 556 257
Howe V. Taggart, 133 Mass. 284. 43
Howe V. White, 162 Ind. 74.259, 265
Howell V. Field, 70 Ga. 592 397
Howell V. Parsons, 89 N. C. 230 298
Hubbard v. Carpenter, 5 Barb.
(N. Y.) 520. . . 132
Hubbard v. Elden, 43 Ohio St.
380. . . . 324
Hubbard v. Gurney, 64 N. Y.
457 122, 171
Hubbard v. Haley, 96 Wis. 578. 348
353, 364
Hubbard v.- Hart, 71 Iowa 668-. 125
Hubbard v. Switzer, 47 Iowa
681. . . . 333
Huckabee v. May, 14 Ala. 263 • • 358
504:
Table of Cases,
Sec.
Huddleson v. Polk, 70 Neb. 483.
97 N. W. 624 325
Hudson V. Aman (N. C. 1912),
74 S. E. 97 148, 187, 197
Hudson V. Winslow, 35 N. J. L.
437 60
Huey V. Pinney, 5 Minn. 310 145
Huff V. Cole, 45 Ind. 300 103
Huff V. Simmers, 114 Md. 548.. 386
Huffman v. People, 78 111. App.
345 244
Huggins V. People, 39 111. 241.. 411
431
Hughes V. Ladd, 42 Oreg. 123.28, 35
Hughes V. Littlefield, 18 Me.
400 5, 39
Hughes V. People, 82 111. 78... 330
Hughes V. State, 28 Tex. Civ.
App. 499 414
Hughlett V. Huglilett, 3 Humph.
(Tenn.) 452 246
Hulburt V. Kephart, 50 Colo. 353 35
Hulet V. Soullard, 26 Vt. 295... 178
Hull V. Massachusetts Bonding
& Ins. Co. (Kan. 1912), 120
Pac. 544 442
Hull V. Parker, 37 Mich. 590... 129
Humboldt Sav. & Loan Society
V. Wennerhold, 81 Cal. 528- . . 75
Hume V. Perry (Tex. Civ. App.
1911), 136 S. W. 594.. . 85
Humphries v. State (Tex. Civ.
App. 1902), 69 S. W. 527 . 433
Hun v. Nichols, 1 Salk. 289... 57
Hungerford v. O'Brien, 37 Minn.
306 349
Hunt v. Adams, 5 Mass. 519,
523 86
Hunt v. Bridgham, 2 Pick.
(Mass.) 581 90
Hunt v. Ford, 142 Mo. 238 382
Hunt V. Gardner, 39 N. J. L. 530 111
Hunt V. Postlewait, 28 Iowa
427 49
Hunt V. State ex rel. City of An-
derson, 124 Ind. 306. 76, 318
Sec
Hunter v. Clark, 28 Tex. 163... 131
Hunter v. First National Bank
of Ft. Wayne,' 172 Ind. 62.51, 133
Hunter v. Robertson, 30 Ga. 479 90
Hunter v. United States, 5 Pet.
(U. S.) 173. 338
Huntington v. Knox, 7 Cush.
(Mass.) 374. ... 358
Huntley v. Sanderson, 1 Cr. &
M. 467. . . . 11
Hurd v. Little, 12 Mass. 502... 123
Hurlburt v. Kephart, 50 Colo.
353. . . . ..59, 67
Hurst Hardware Co. v. Goodman,
()8 W. Va. 462, 398
Husbands v. Commonwealth,
143 Ky. 290 414, 429, 434
Huse v. Ames, 104 Mo. 91.. 180, 195
Hutchcraft v. Shrout, 1 Mon.
206 260
Hutchinson v. Roberts, 8 Houst
(Del.), 459. . . 3
Hutchinson v. Woodwell, 107
Pa. St. 509. . . 128
Hutchinson v. Wright, 61 N. H.
108. ... 116
Hutson v. Jenson, 110 Wis. 26. 259
Huyler v. Atwood, 26 N. J. Eq.
504 11
Hyatt V. Bonham, 19 Ind. App.
256 385
Hyde v. Equitable Life Assur,
Soc, 61 Misc. R. 518 382
Hyde v. Grench, 62 Md. 577. .. . 2
Hyde v. Miller, 168 N. Y. 590 . . 100
Hyde v. Miller, 45 App. Div. (N.
. Y.) 396. . . 100
Hyde v. Tracy, 2 Day (Conn.)
492 ........" 202
Hyer v. Smith, 3 Cranch C. C.
437 411
Hyland v. Habich, 150 Mass.
112 87, 306, 346, 368
Hyman v. Dooley, 77 Md. 162- . . 348
Table of Cases.
505
I. ^EC
Ida County Savings Bank v.
Seidensticker, 128 Iowa 54 ■ • 70
141
Ide V. Churchill, 14 Ohio St.
372. . . . 133
Illinois Industrial Home for the
Blind V. Dreyer, 150 111. 574- • 305
Illinois Surety Co. v. Garrard
Hotel Co. (Ky. 1909), 118 S.
W. 967 101, 144a
Imming v. Fieldler, 8 111. App.
256. ... 145, 146
Independent School Dist. v.
Hubbard (Iowa), 81 N. W. 241 292
Indiana Trust Co. v. Finitzer,
160 Ind. 647. . . .••• 374, 398
Ingersoll v. Roe, 65 Barb. (N.
Y.) 346. . . 32
Ingersoll v. Seatoft, 102 Wis.
476 321
Ingles V. State, 61 Ind. 212 316
Ingles V. Sutliff, 36 Kan. 444-. 46
47, 114
Ingraham v. Baldwin, 9 N. Y.
45. . . . 25
Ingram v. State, 27 Ala. 17.424, 426
Inhabitants v. Bell, 9 Met. 490. 69
Inhabitants v. Wilson, 13 Gray
385 324
Inman v. Sherrill, 29 Okla. 116 323
In re Hughes Estates, 13 Pa.
Super. Ct. 240. 39
In re Merwin, 10 Daly (N. Y.)
13 281
In re. See name.
Insurance Co. v. Colt, 20 Wall.
(U. S.) 560. . 400
Iowa National Bank v. Cooper,
(Iowa 1906) 70 N. W. 625- •• • 153
Irby V. Livingston, 81 Ga. 281. 338
Iredell v. Barbee, 9 Ired. L.
230. . . . 59, 266
Irick V. Black, 17 N. J. Eq. 189. 145
Iron V. Yell (Civ. App. 1910),
132 S. W. 69. . 130
Sec.
Iron City National Bank v. Raf-
ferty, 270 Pa. St. 238. 3a
Irvine v. Adams, 48 Wis. 468-. 171
Irwin V. Backus, 25 Cal. 214,
259 65, 243, 259
Isett V. Hoge, 2 Watts (Pa.)
128. ... 4
Ishmael v. State, 41 Tex. 244.. 419
Ives v. Hulce, 17 111. App. 35-. 226
J.
Jack v. People, 19 111. 57 27
Jack V. Sinsheimer, 125 Cal.
563. . . . 351, 356
Jackson v. Benson, 54 Iowa. 654 128
Jackson v. Cooper, 19 Ky. Law
Rep. 9. . . 41
Jackson v. Hampton, 10 Ired.
(N. C.) L. 579 406
Jackson v. Jackson, 7 Ala. 791. 39
40 42
Jackson v. Jackson, 51 Vt. 253 185
Jackson v. Patrick, 10 S. C. 197 67
Jackson v. State, 52 Kan. 249.. 431
Jackson v. Wilson, 117 Ala. 432. 244
Jackson v. Yandes, 7 Blackf.
536 348
Jacob V. Curtis, 67 Conn. 497- 126
Jacobs V. Hill, 2 Leigh. (Va.)
393 65, 71
Jacobson v. Anderson, 72 Minn.
426. . . . 265
Jacobson v. Cooper, 19 Ky. Law
Rep. 9 36
Jacbus V. Jamestown Mantel
Co., 149 App. Div. (N. Y.)
356 28, 30
Jaffray v. Brown, 75 N. Y. 303. 42
Jaffray v. Crane, 50 Wis. 349-. 113
Jaffray v. Smith, 106 Ala. 112-. 223
James v. Badger, 1 Johns. Cas.
(N. Y.) 131. . . 123
James v. Calder, 7 Ga. App.
707 144a
James v. Kennedy, 10 Heisk
(Term.) 607 220
506
Table of Cases.
Si.:c.
Jjunes V. Little, \'Mi Ua. 672 .... 246
James v. State, 65 Ark. 415.74, 269
James v. West, 67 Ohio St. 28- • 253
Jameson v. Bartlett, 63 Neb.
638 235a
Jamison v. Crosby, 11 Humph.
(Tenn.) 273. . . . ........... 260
Jarvis v. Hyatt, 43 Ind. 163.... 363
Jarumsch v. Otis Iron & Steel
Co., 23 Ohio Cir. Ct. R. 122.. 377
Jaycox V. Trembly, 42 App. Div.
(N. Y.) 416. . . 37
Jefferson v. Stagle, 66 Pa. St.
202. . . S91
Jeffries v. Lawson, 39 Miss. 791 23
Jenkins v. American Surety Co.,
45 Wash. 573. . 112b, 112f, 186
Jenkins v. Clarkson, 7 Ohio 72. 119
Jenkins v. Daniels, 125 N. C.
161. . . . 113
Jenkins v. Jensen, 24 Utah 108. 253
Jenkins v. Simonds, 29 Ind. 294 333
Jenkins v. State, 76 Md. 255.65, 243
Jenkins, Appeal of (Ind. App.)
58 N. E. 560 325
Jennings v. Parr, 62 S. C.
306 . . .. • . .244, 246, 259
Jerauld v. Trippet, 62 Ind. 122. 131
Jeudevine v. Rose, 36 Mich. 54 87
Jewell V. Mills, 3 Bush (Ky.)
62. . . . 323, 324
Jewett V. Comforth, 3 Me. 107. 187
Jewett V. Whitman, 35 Barb. (N.
Y.) 208. . . 150
Jex V. Straus, 122 N. Y. 293.82, 357
John Church Co. v. Dorsey, 38
Misc. R. (N. Y.) 542.. 235a
Johns V. Jones, 16 Ala. 454.. • • 207
Johnson v. Bank, 2 B. Mon.
(Ky.) 311. . . . 102
Johnson v. Bobbitt, 81 Miss. 339,
33 So. 73. . . 310
Johnson v. Flint, 34 Ala. 673.. 228
Johnson v. Franklin Bank, 173
Mo. 171 113
Johnson v. Fuquay, 1 Dana
(Ky.) 514 247
Seo.
Johnson v. Harvey, 84 N. Y.
363 200, 201
Johnson v. Huntington, 13
Conn. 40. . . . 217
Johnson v. Johnson, 24 Ky. Law
Rep. 16. . . 26?
Johnson v. Johnson, 31 Ohio St.
131. ... 54
Johnson v Kimball, 39 Mich.
187. . . . 54
Johnson v. May, 76 Ind. 293. . . 67
Johnson v. Ramsey, 43 N. J. L
280 210
Johnson v. Vaughn, 65 111. 425 194a
197
Johnson v. Weatherwax, 9 Kan.
75 50, 54
Johnson v. Williams Admr., 23
Ky. Law Rep. 658. . 325
Johnson v. Young, 20 W. Va.
614. ... 2
Johnson County v. Chamberlain
Banking House, 80 Neb. 96-. 28
51, 78
Joliet, Etc. R. R. Co. v. Healy,
94 111. 416. . . 156
Jolly V. Walker, 26 Ala. 690 381
Jones V. Ashford, 79 N. C. 172. • 359
Jones V. Bacon, 145 N. Y. 446. . 382
Jones V. Bangs, 40 Ohio St. 139 107
Jones V. Bank, 29 Conn. 25 151
Jones V. Berryhill, 25 Iowa 289. 357
Jones V. Blanton, 41 N. C. C?
Ired. L.) 115 203, 260
Jones V. Boyd, 40 Ohio St. 139. 100
Jones V. Bradford, 25 Ind.
305 166, 198
Jones V. Britt, 168 Fed. 852 42
Jones V. Crosthwait, 17 Iowa
393 92, 135, 376
Jones V. Ellis, 10 Ad. & El. 382. 408
.Jones V. Foster, 175 111. 456 11
Jones V. Gaines, 92 Ark. 519. •■144a
Jones V. Gallatine Co., 78 Ky.
491 308
Jones V. General Const. Co., 150
Iowa 194 377
Table of Cases.
507
Jones V. Hays, 3 Ired. L. (N. C.)
502 260
Jones V. Joyner, 8 Ga. 562..- 185
Jones V. Keer, 30 Ga. 93...... 129
Jones V. McLaughlin-Patrick
Const. Co., 99 111. App. 320- - . 381
386
Jones V. Orchard, 16 C. B. 614- . 415
416
Jones V. Sarchett, 61 Iowa 520. 116
Jones V. Savage, 10 Daly (N. Y.)
621. . . 27
Jones V. Scanland, 6 Humph.
(Tenn.) 195 304
Jones V. Shorter, 1 Ga. 294 383
Jones V. Spitters, 9 Ga. App. 473 238
Jones V. State, 11 Tex. Cr. App.
412 431
Jones V. Trimble, 3 Rawle
(Pa.) 388. . . . . 176
Jones V. United States, 18 Wall.
(U. S.) 662 314
Jordan v. Dobbins, 122 Mass.
168 87, 306, 346, 367, 368
Jordan v. Jordan, 10 Lea, 124 • . 51
Jordan v. Walters (Iowa), 80 N.
W. 530 103
Joslin V. Car Spring Co., 36 N.
J. L. 141. . . 12
Joslyn V. Collinson, 26 111. 61 ■• 36
Joslyn V. Eastman, 46 Vt. 258-. 224
Joyce V. Joyce, 1 Bush (Ky.) 474 178
Judah V. Zimmerman, 22 Ind.
388. 67, 362
Judge V. Heydock, 8 N. H. 491. 245
Judge of Probate v. Lee, 72 N.
H. 247 258
Judge of Probate v. Sulloway
68 N. H. 511 1, 243, 251, 252
Jungk V. Reed, 9 Utah 49 365
K.
Kadish v. Garden City Equitable
Loan & Bldg. Assn., 151 111.
531. ... 30
Kagey v. Trustees, 68 111. 75... 303
Sec.
Kalso V. Kalso, 16 Ind. App. 615 208
Kane v. Railroad Co., 5 Neb.
105. . . . 325
Kane v. Williams, 99 Wis. 65.. 364
Kansas City v. Davidson, 154
Mo. App. 269. . 67
Kansas City Hydraulic Press
Brick V. National Surety Co.
(U. S. C. C.) 149 Fed. 507 112
Kansas Mfg. Co. v. Gandy, 11
Neb. 448 42
Kapp V. Ins. Co., 113 111. 390... 143
Karglin v. Fuller, 14 N. J. Eq.
419 171
Kassing v. Bank, 74 111. 16 189
Katz V. Massinger, 110 111. 372. 163
Kauffman v. Cooper, 46 Neb
644. . . . 112
Kaufman v. Wilson, 29 Ind. 504 146
Kaufmann v. Kowan, 189 Pa. St.
121. . . . 102, 113
Kay V. Allen, 9 Pa. St. 320 348
Kearnes v. Montgomery, 4 W.
Va. 29. . . . 4
Kearsley v. Cole, 16 Mees & W.
128 116
Keedle v. Flack, 27 Neb. 836... 12
Keefhauer v. Lone, 2 Pa. St.
241. ... 427
Keegan v. Smith, 67 N. Y. Supp.
281. . . . 253
Keel V. Larkin, 72 Ala. 493.. 160, 161
Keenan v. Empire State Surety
Co., 62 Wash. 250 101, 112c
Keighler v. Savage Manf. Co.,
12 Md. 383. . 95
Keil V. Healey, 84 111. 104 24
Keith V. Henkleman, 173 111.
137. . . . 233
Kellar v. Williams, 10 Bush
(Ky.) 216. . . . 204
Keller v. Ashford, 133 U. S.
610 12, 13, 21
Kelley Mans & Co. v. O'Brien
Varnish Co., 90 111. App. 287. . 28
508
Table of Cases.
Sec
Kellogg V. American Ins. Co.
62 N. J. Eq. 811. •• •• 72
Kellogg V. Kimball, 142 Mass.
124. ... 217
Kellogg V. Lopez, 145 Cal. 497.3, 35
Kellogg V. Olmstead, 25 N. Y.
189 49
Kellogg V. Scott, 58 N. J. Eq.
344 72, 79
Kellogg V. State, 43 Miss. 57 421
Kellum V. Clark, 97 N. Y. 390. . 69
Kelly V. Gillespie, 12 Iowa 55.- 171
Kelly V. Gankler, 1C4 Mich. 519. . 224
Kelly V. Gordon, 3 Head
(Tenn.) 683. . . 234
Kelly V. Page, 7 Gray (Mass.)
213. . . . ......166, 198
Kelly V. Schupp. 60 Wis. 76 391
Kelly V. State, 25 Ohio St. 567.. 303
Kelso V. Flaney, 104 Ind. 180.- 385
Kempner v. Patrick (Civ. App.
1906), 95 S. W. 51 100
Kenan v. Carr, 10 Ala. 867- -. 407
Kenck v. Parchew, 22 Mont. 519 51
Kendall v. Aleshive, 28 Neb.
707
Kendall v. Lawrence, 22 Pick.
(Mass.) 540. . . ••.. 376
Kendrick v. Forney, 22 Gratt.
(Va.) 748. . . . 164, 186
Kendrick v. Rice, 16 Tex. 254.. 188
Kennedy v. Adams, 5 Harr
(Del.) 100. . . . 408
Kennedy v. Adickes, 37 S. C. 174 253
Kennedy v. Brown, 21 Kan. 171 65
238
Kennedy v. Falde, 4 Dak. 319.. 2
Keogh, Matter of, 22 Misc. R.
(N. Y.) 747 441
Keokuk "v. Love, 31 Iowa, 119-. 152
157, 164
Keokuk County State Bank v.
Hall, 106 Iowa 540. 135
Kernochan v. Murray, 111 N. Y.
306 . 345
Sec
Kerr v. Clark, 11 Humph.
(Tenn.) 77. . . . 212
Kerr v. Hough, 22 Ky. Law Rep.
1693 .. 189
Kerr v. Moon, 9 Wheat. (U. S.)
565. . . . 245
Kersham v. Conklin, 40 Conn.
81 206
Kerwin ex parte, 8 Cow (N. Y.)
118 ... 56
Kesler v. Cheadle, 12 Okla. 489. 381
Kester v. Hill, 42 W. Va. 611- ■ . 261
Kewaunee v. Knipfer, 37 Wis.
496 314
Keyeser v. Keen, 17 Pa. St. 327. 54
Kidd V. Hinley, 54 N. J; Eq.
177 ■145. 149
Kiernan v. Kratz, 42 Oreg. 474. 381
Kilbride v. Moss, 113 Cal. 432.. 381
Kilgrow V. State, 49 Ala. 337.. 419
Killum V. Clark, 97 N. Y. 390.. 70
Kilson V. Farwell, 132 111. 337. 320
Kimball v. Baker, 62 Wis. 526-. 77
362
Kimball v. Tsewall, 7 Hill (N.
Y.) 116. . . 92, 376
Kimble v. Cummins, 3 Met.
(Ky.) 327 177, 371
Kimmel v. Lowe, 28 Minn. 265.. 163
182, 372
Kincaid v. Yates, 63 Mo. 45 103
Kincheloe v. Holmes, 7 B. Mon.
9 355
Kindle V. State, 7 Blackf. (Ind.)
566 313
King v. Baker, 7 La. Ann. 571- . 325
King V. Baldwin, 17 Johns. (N.
Y.) 384. . . . . . ■ • 145
King V. Baldwin, 2 Johns. Ch
(N. Y.) 554. . . . .. 165, 170
King V. Clark, 5 B. & A. 728 427
King V. Newman, 54 Ohio St.
373 361
King V. Nichols, 16 Ohio St. 80 328
King V. vSawyer, 1 Ala. App. 439 325
334
Table of Cases.
509
Sec.
King V. Stale, 18 Neb. 375.. 414, 429
King V. Summitt, 73 Ind. 312.. 376
King V. United States, 99 U. S.
229. . . . 337
King Co. V. Terry, 5 Wash. 536. 301
305, 313
Kingle & Clark Drug Co. v.
Meyers (Tex. Civ. App. 1911),
140 S. W. 463 322
Kingman v. Peoria County, 96
111. App. 417. . . 301
Kingman St. Louis Implement
Co. V. McMaster, 118 Mo. App.
209 123
Kingsbury v. Westgate, 61 N. Y.
336. . . . 82
Kingsbury v. Williams, 53 Barb.
(N. Y.) 142. ... 81
Kinney v. Ensign, 18 Pick.
(Mass.) 232. . . 252
Kinney v. United States Fidelity
& G. Co., 182 Fed. 1005 333
Kinsley v. Brown, 95 111. App.
516 ■ 377
Kinzie v. Rileys Exr., 100 Va.
709 144
Kirby v. Landis, 54 Iowa 150. ■ . 125
Kirby v. Studebaker, 15 Ind. 45 114
Kirkham v. Marter, 2 Barn (1l
Aid. 613. . . 401
Kirkpatrick v. Howk, 80 111. 122 130
Kirschbaum v. Blair, 98 Va. 35. 67
Kirschman v. Conklin, 40 Conn.
81 210
Kisner v. Pullen, 9 Daly (N. Y.)
485 . 43
Kissire v. Plunkett-Jarrell Gro-
cer Co. (Ark. 1912), 145 S. W
567. . . .14, 35, 42, 113, 121, 152 157
Kiton V. Julian, 4 El. & B. 854. . 70
Klein v. Currier, 14 111. 237 341
Klein v. German, National Bank,
69 Ark. 140 59a
Klein v. Long, 27 App. Div. (N.
Y.) 158 117
Klingensmith v. Klingensmith,
31 Pa. St. 460. . 133, 145
Sec.
Knapp V. Swaney, 56 Mich. 345. 112
Knapp & Co. v. Tidewater Coal
Co. (Conn. 1912). 81 Atl.
1063 28, 30
Kneisley Lumber Co. v. Stad-
dard Co., 131 Mo. App. 15 26
Knickerbocker v. Wilcox, 83
Mich. 200. ... 28, 29
Knight V. Dunsmore, 12 Iowa
35. . . . 347
Knight V. Morrison, 79 Ga. 55.. 163
Knight V. Nelson, 117 Mass.
458. . . . 231
Knight V. Weeks, 115 Fed. 970. 196
Knight & Jilson Co. v. Castle,
172 Ind. 97. . .129, 144a
Knopf V. Morel, 111 Ind. 570.- a
Knowlton v. Husey, 76 Me. 345. 340
Knox V. Vallandingham, 13
Smead. & M. (Miss.) 520.... 199
Koch, Estate of, 148 Wis. 548.. 194
194b, 197, 200, 208
Koch V. Roth, 150 111. 212 97
Kock V. Block, 29 Ohio St. 565. 185
Koehler v. Reinheimer, 20 Misc.
R. 62 30
Koehler & Co. v. Reinheimer, 26
App. Div. (N. Y.) 1 30
Koenig v. Stickel, 58 N. Y. 475. 409
Konitzky v. Meyer, 49 N. Y.
571. ... 174, 188, 194a
Koone v. Seward, 8 Watts (Pa.)
388 405
Koppitz-Melchers Brewing Co.
V. Schultz, 68 Ohio St. 407 100
Kornsmeyer, Etc. Co. v. I\Ic-
Cay, 43 Neb. 649 112
Kracht v. Empire State Surety
Co. (Wash.) 1911), 113 Pac.
773 112a
Krafft V. Citizens' Bank of
Dyersburg, 139 App. Div. (N.
Y.) 610. . . . 356
Kraft v. Creighton, 3 Rich. (S.
C.) 273. . . 179
Kramer v. Bank, 15 Ohio 253.. 189
510
Table of Cases.
Kramph v. Hatz, 52 Pa. St.
525 2, 4, sng
Krigler v. Prien, 62 Wis. 248. 264
Kroncke v. Madsen, 56 Neb.
609 1, 67
Kunz V. Boll, 140 Wis. 69 112e
Kurtz V. Forquer, 94 Cal. 91... 54
L.
Lackey v. Boruff, 152 Ind. 371 • • 35
40
Lackey v. Steere, 121 111. 598.. 92
Lacy V. Loftus, 26 Ind. 324 14
Lacy V. Rollins, 74 Tex. 566 3
Lacy V. Stamper, 27 Gratt. (Va.)
421 253
Ladd V. Trustees, 80 111. 233. 126 301
Lafarge v. Dillenbeck, 3 Denio
(N. Y.) 157 95
Lafayette v. James, 92 Ind. 240 66
312
Lafayette Mutual Bldg. Ass'n v.
Klemhoffer, 40 Mo. App. 388. . 41
76
Laffan v. United States, 122 Fed.
333 309
Laingor v. Lowenthal, 151 111.
App. 599 40, 342
Lake v. Thomas, 84 Md. 608 51
Lake Charles Planing Mill Co.
V. Grand Lodge, 127 La. 238. . 112
Lake County v. Neilon, 44 Oreg.
14 337
Lakenan v. North Missouri
Trust Co., 147 Mo. App. 48,
126 S. W. 547 130, 152
Lakeside Land Co. v. Empire
State Surety Co., 105 Minn.
213 443
Lamb v. Carley, 35 App. Dlv. (N.
Y.) 503 348
Lamb v. Morris (Harrison v.
Harrison), 118 Ind. 179 99
Lamb v. Tucker, 42 Iowa 118.. 12
Lamb v. Withrow, 31 Iowa 164 173
Lamkins v. Le Doux, 101 Me.
581 24
C-EC.
Lammon v. Feusier, 111 U. S.
17 324
Lancashire Ins. Co. v. Callahan,
68 Minn. 277 127
Lancaster First Nat. Bank v.
Shreiner, 110 Pa. St. 188 99
Lance v. Pearce, 101 Ind. 595.. 388
398
Lanckton v. Wolcott, 6 Met.
(Mass.) 305 6
Laue V. Duchac, 73 Wis. 655... 357
Lane v. Hyder (Mo. App. 1912),
147 S. W. 514 713
Lane v. Westmoreland, 79 Ala.
372 182
Lang V. Henry, 54 N. H. 57. . . . 392
Lang V. Pike, 27 Ohio St. 498 228
Lang V. Seary, 72 Mo. 648 71
Langan v. Hewett, 13 S. M. &
M. 122 26
Langdon v. Markle, 48 Mo. 357. . 146
Langdon v. Richardson, 58 Iowa
610 388
Langford v. Perrin, 5 Leigh
(Va.) 552 3, 207
Langley v. Adams, 40 Me. 125 . . 226
Lang's Heirs v. Waring, 17 Ala.
145 26
Lansdale v. Cox, 7 T. B. Mon.
(Ky.) 401 194
La Porter v. Williams, 17 Cal.
App. 428 437
Large v. Steer, 121 Pa. St. 30.. 233
La Rose v. L-gansport Nat.
Bank, 102 Ind. 332 87, 88
Larson v. Hanson, 21 N. D. 411. . 238
Larson v. Kelly, 64 Minn. 51 334
Lathrop v. Atwood, 21 Conn. 117 182
Laurium, Village of v. Mills, 129
Mich. 536 305
Laverty v. Burr, 1 Wend. (N. Y.)
529 26
Law V. East India Co., 4 Ves.
824 99
Lawrence v. Beecher, 116 Ind.
312 124
Table of Cases.
511
Sec.
Lawrence v. Commonwealth, 25
Ky. Law Rep. 455 423, 433
Lawrence v. McCalmont, 2 How.
(U. S.) 426 356
Lawson v. Townes, 2 Ala. 375 • 355
Lawyers' Surety Co. v. Reinach,
25 rise. R. (N. Y.) 150 438
Lawyers' Surety Co. v. Reinach,
23 Misc. R. (N. Y.) 242 438
Lazelle v. Empire State Surety
Co., 58 Wash. 589 144a
Lazelle v. Miller, 40 Oreg. 549 •• 113
Leak v. Covington, 99 N. C. 559 211
Leno, In re, 60 Misc. R. (N. Y.)
520 434
Learn v. Upstill, 52 Neb. 271- ■ . 381
Leary v. Murray, 178 Fed. 209 . . 189
Lee V. Bolles, 20 Mich. 46 1
Lee V. Burgmann, 37 Neb. 232 • • 171
Lee V. Charmley, 20 N. D. 570.. 323
326
Lee V. Dick, 10 Pet. (U. S.) 482,
495 66, 355, 356
Lee V. Hasting, 13 Neb. 508 66
Lee V. Jones, 17 C. B., N. S. 482 140
Lee V. Manley, 154 N. C. 244 .. . 139
Lee V. Newman, 55 Miss. 365 ■ • ■ 395
Lee V. Stowe, 57 Tex. 444 372
Lee V. Unkefer, 85 S. C. 199 396
Lee V. Wisner, 38 Mich. 82 41, 42
Lee V. Yandell, 69 Tex. 34 92
Leeds v. Dunn, 10 N. Y. 469,
475 103, 356, 363
Leeper v. Paschal, 70 Mo. App.
37 210
Leggett V. Humphrey, 21 How.
(U. S.) 66 74
Leggett V. McClelland, 39 Ohio
St. 624 151
Lehigh Coal, etc., Co. v. Blake-
lee, 7 Pa. Dist. 32 371
Leighton v. Brown, 98 Mass. 515 319
Leindecker v. Aetna Indemnity
Co., 52 Wash. 609 112e
Leitch V. Taylor, 7 Barn. & Cr.
491 75, 311
Leith V. Bush, 61 Pa. St. 395
Leithauser v. Baumerster, 47
Minn. 151
Leland v. Felton, 1 Allen
(Mass.) 531
Lemmon v. Box, 20 Tex. 329
Lemmon v. Strong, 59 Conn. 448
Lemmon v. Whitner, 75 Ind. 318
Lemp V. Armegol, 86 Tex. 690- •
Sec.
53
20
252
381
357
115
348
355
Lennig v. Harrisonburg Land &
T. Co., 107 Va. 458 11
Lennox v. Murphy, 171 Mass.
370 341, 342, 350, 362
Lenox v. Prout, 3 Wheat. (U. S.)
520 95
Lent V. Padelford, 10 Mass. 230 353
Lenusse v. Barker, 3 Wheat. (U.
S.) 101 87
Leonard v. Gibson, 6 111. App.
503 228
Leonard v. Vredenburg, 8 Johns.
(N. Y.) 29 35, 39, 347
Leonard v. Wilder, 36 Me. 265.. 347
Leonhard v. Bank, 50 Neb. 38. . 359
Lerch v. Gallup, 67 Cal. 595.. 374
396
Lesher v. United States Fidelity
& Guaranty Co., 239 111. 502.- 443
Letcher v. Yantes, 3 Dana 160. . 145
Levi V. Mendell, 1 Duv. (Ky.)
78 349
Levick v. Norton, 51 Conn. 461. • 321
Levy V. McDonald, 45 Tex. 220 325
Levy V. Webster (Me. 1910), 76
Atl. 936 349
Lewenthal, In re, 10 Daly (N.
Y.) 14 281
Lewin v. Barry, 15 Colo. App.
461 26
Lewis v. Brehme, 33 Md. 112. . . 394
Lewis V Commissioners, 70 Ga.
486 51
Lewis V. Dwight, 10 Conn. 95-67, 318
Lewis V. Harvey, 18 Mo. 746 347
Lewis V. Leathey, 14 Mo. App.
564 232
512
Table of Cases.
Sec.
Lewis V. Lewis, 92 111. 237 162
Lewis Adm'r v. United States
Fidelity & Guaranty Co., 144
Ky. 425 194c
Lewiston v. Gagne, 89 Me. 395- . 51
Lexington, etc., R. R. Co. v. El-
well, 8 Allen (Mass.) 371 ■•■• 283
284, 297
Lichenthaler v. Thompson, 13
Serg. & R. 157 152
Liddell v. Wiswell, 59 Vt. 365.- 196
197, 212
Lidderdale v. Robinson, 12
Wheat. (U. S.) 594 201
Lidderdale v. Robinson, 2
Brock. 159 166, 177
Liedenback v. Denklespeil, 11
Lea (Tenn.) 297 272
Life Association v. Lemke, 40
Kan. 661 282
Life Ins. Co. v. Ecclesine, 6 Abb.
Pr., N. S. (N. Y.) 23 404
Lime County v. Farris, 52 Mo.
75 129
Lime Rock Bank v. Mallett, 34
Me. 547 171
Linam v. Jones, 134 Ala. 370-. 374
377
Linch V. Littlefield, 16 111. App.
612 75
Lincoln v. Hinzey, 51 111. 437.. 347
Lincoln Trust Co. v. Wolff, 91
Mo. App. 133 259, 265
Lindley v. State, 115 Ind. 502.. 244
Lininger, etc., Co. v. Wheat, 49
Neb. 567 348
Linton v. Chestnutt-Gibbons
Grocer Co. (Okla. 1911), 118
Pac. 385 42, 167, 144a
Lionberger v. Kieger, 88 Mo. 160 72
286, 299
Liquor Dealers' Supply Co., In
re., 177 Fed. 197 30
Little V. Bradley (Fla.), 31 So.
342 339
Little V. Commonwealth, 48 Pa.
St. 337 278
Sec.
Little V. Little, 13 Pick. 426 189
Littlefield v. Littlefield, 91 N. Y.
203 90
Livermore v. Ayres (Kan. S. C.
1911), 119 Pac. 549 113b
Liverpool Water Works v. At-
kinson, 6 East 507 284
Lloyd V. Harper, 16 Ch. D. 290,
314 306, 345, 346
Lobaugh v. Thompson, 74 Mo.
600 92
Locke V. McVean, 33 Mich. 473 66
67
Lockenmeyer v. Pogarty, 112 111.
572 152
Lockwood V. Jones, 7 Conn. 439 411
Loeb V. Barris, 50 N. J. L. 382- . 358
Loeff V. Taussig, 102 111. App.
398 363
Loew V. Stockney, 68 Pa. St. 226 54
Logan V. Commonwealth, 144
Ky. 494 434
Logan V. Ogden, 101 Tenn. 392 347
Lombard v. Cobb, 14 Me. 222. . . 187
Lombard v. Mayberry, 24 Neb.
674 78
Lompoc Valley Bank v. Steph-
enson (Oal.), 104 Pac. 449... 341
London Assurance Corporation
V. Bold, 6 A. & E. 523 83
Long V. Copeland, 182 Mass. 332 264
Long V. Seay, 72 Mo. 648 305
Long V. Templeman, 24 La. Ann.
564 93
Longbridge v. Bowland, 52
Miss. 546 154, 157, 160
Lookout Bank of Morristown v.
Aull, 93 Tenn. 645 51
Lookout Mountain R. R. Co. v.
Houston, 85 Tenn. 224 377, 393
396
Loomis V. Brown, 16 Barb. (N.
Y.) 325 233
Looney v. Hugh, 26 N. Y. 514-. 314
Loop V. Northup, 59 Hun (N. Y.)
75 243
Table of Cases.
513
^EC.
Loop V. United States, 3 Mason
466 117
Loosemore v. Radford, 9 Mees.
& W. 657 182
Lopeman v. Henderson, 4 Pa.
St. 232 404
Lord V. Cronin, 154 N. Y. 172.. 445
Lord V. Staples, 23 N. H. 448. . . . 181
Lord Arlington v. Merricke, 3
Saund. 403 70
Lord V. Calhorn, 162 Ala. 444.. 398
Loring v. Alline, 9 Cush. (Mass.)
68 263
Loring v. Bacon, 3 Cush. (Mass.)
465 209, 260
Loring v. Morrison, 15 App. Div.
(N. Y.) 498 144
Loughlin v. American Surety
Co., 114 Fed. 627 74
Loughlin v. Ferguson, 6 Dana
(Ky.) Ill 220
Louisiana, etc., R. R. Co. v. Dil-
lard, 51 La. Ann. 1484 348
Louisiana Society for Preven-
tion of Cruelty to Children v.
Moody, 111 La. 199 ..423, 431, 433
Louisville, etc., R. R. Co. v. Imp.
R. R. Co., 69 Fed. 433 28
Louisville Trust Co. v. Railroad
Co., 75 Fed. 433 357
Love V. Brown, 38 Pa. St. 307-. 114
Love V. Cahn (Ark. 1909), 124 S.
W. 259 224
Love V. People, 91 111. App. 237 325
Love V. Shiffelin, 7 Fla. 40 27
Lovejoy v. Isbell, 70 Conn. 557,
562 54, 441
Lovejoy v. Murray, 3 Wall. (U.
S.) 1 219, 231
Lovejoy v. Whipple, 18 Vt. 379 48
Lovelace v. Lovelace, 136 Ky.
452 126
Lovell V. Adams, 5 Humph. 133 129
Low v. Blodgett, 21 N. H. 121.. 163
Lowell V. Edwards, 2 Bos. & P.
268 198
33
Sec.
Lowell V. Parker, 10 Met.
(Mass.) 309 323
Lowenstein v. Sorge, 75 Mo.
App. 281 36, 41
Lowenthal v. Wagner, 69 N. J.
L. 129 411
Lowman v. Yates, 37 N. Y. 601- . 114
Lowry v. Bank, 2 Watts & S.
(Pa.) 210 372
Lowry v. Polk Co., 51 Iowa 50. . 317
Lowry v. State, 64 Ind. 421 260
Lucas V. Chamberlain, 8 B. Mon.
276 383
Lucas V. Donaldson, 117 Ind. 139 258
Lucas V. Governor, 6 Ala. 826-. 321
Lucas V. Owens, 113 Ind. 521.. 126
Lucas V. Tucker, 17 Ind. 41 245
Lucas V. White Line Transfer
Co., 70 Iowa 541 28
Ludgater v. Cannell, 3 Man. &
Gr. 174 271
Ludloy V. Simond, 2 Caine's Cas.
29 77
Lucking v. Gegg, 12 Bush. (Ky.)
298 185
Lumpkins v. Mills, 4 Ga. 343 178
Lusk V. Hopper, 3 Bush (Ky.)
179 157
Lusk V. Throop, 189 111. 127- .. . 398
Lusk V. Throop, 89 111. App. 509 381
Lyle V. Moore, 24 111. 95 114
Lyman v. Conkey, 1 Met. (Ky.)
317 310
Lyman v. Lincoln, 38 Neb. 794 112
Lynch v. Hancock, 14 S. C. 66. . 180
Lynch v. Rotan, 39 111. 14 263
Lynch v. Smyth, 25 Colo. 103.- 114
Lyndon v. Miller, 36 Vt. 329 ... . 337
Lyon V. Horner, 32 W. Va. 432. . 325
Lyon V. Osgood, 58 Vt. 707. .251, 252
253
Lyon Potter & Co. v. First Na-
tional Bank, 85 Fed. 120 30
Lyons v. State, 1 Blackf. (Ind.)
309 431
S14
Table ov Cases.
M. feEC.
MacDonald v. O'Shea (Wash.
1910), 108 Pac. 436 175
Macfarland v. Heim, 127 Mo. 327 341
Mac Greal v. Taylor, 167 U. S.
688 24
Machado v. Fernandez, 74 Cal.
362 194a
Mackenzie v. Scott, 6 Bro. P. C.
280 3:4
Macy V. Childress, 2 Tenn. Ch.
438 S82
Madeldon v. Leflore, 69 Ark. 140 59a
Madison v. State, 2 A. K. Marsh
131 419
Madison, etc., Plank Road Co. v.
Plank Road Co., 7 Wis. 59.. . . 28
Madison, City of v. American
Sanitary Engineering Co., 118
Wis. 480 112d
Magee v. Leggett, 48 Miss. 139- • 158
Magee v. Manhattan Life Ins.
Co., 92 U. S. 93 66, 285, 287
Magill, Exr. v. Brown Bros., 20
Tex. Civ. App. 662 11
Magruder v. Admire, 4 Mo. App.
133 196
Maguire v. Pan American A. Co.,
205 Mass. 64 238
Mahaska Co. v. Ingalls, 14 Iowa
170 31S
Maingay v. Lewis, 5 Ir Rep. C.
L. 229, 231 21
Mainzinger v. Mohr, 41 Mich.
685 371
Malcrone v. American Lumber
Co., 55 Mich. 622 397
Malhem County v. Carter, 52
Oreg. 616 413
Malin v. Bull, 13 Serg. & R.
(Pa). 441 194a, 201
Malleable Iron Range Co. v.
Pusey, 244 111. 184 354
Mallory v. Gillett, 21 N. Y. 412. . 378
384, 392, 397
Mallory v. Lyman, 3 Pin. (Wis.) I
443 348 j
Maloney v. Nelson, 158 N. Y. 351 416 I
Sec.
Maloney v. Nelson, 12 App. Div.
(N. Y.) 454 416
Maltby's Case, 1 Dow. P. Cas.
294 287
Manary v. Runyon, 43 Oreg. 495 381
Mango V. Edwards, 1 E. D.
Smith 414 217
Manice v. Duncan, 12 La. Ann.
715 131
Mankin v. Jones, 68 W Va. 422 377
Manley v. Baycnt, 2 El. & B. 46 170
Manly v. Atchison, 9 Kan. 358 . . 314
Maun V. Brown, 71 Tex. 241 113
Mann v. Everets, 64 Wis. 372. • . 244
Mannsell v. Egan, 8 Ir. Eq. 372 276
Manny v. National Surety Co.,
103 Mo. App. 716 448
Manry v. Waxelbaum Company,
108 Ga. 14, 17, 18 4, 348
Mansfield v. Edwards, 136 Mass.
15 18, no
Manufacturers' Bank v. Cole, 39
Me. 188 66
Manufacturers' Bank v. Dicker-
son, 41 N. J. L. 448 66, 72, 8a
Manufacturers', etc., Co. v. Odd
Fellows' Asso., 48 Pa. St. 446 282
Many Blanc & Co. v. Jacobson,
149 111. App. 240 43, 353, 36S
Many Blanc & Co. v. Krueger,
153 111. App. 327 35
Mapes V. German Bank of Fel-
den, 176 Fed. 89 50
Maples V. Wightman, 4 Conn.
376 24
Maquoketa v. Willey, 35 Iowa
323 131
Marble v. Harvey, 92 Tenn. 115 30
Marcy v. Praeger, 34 La. Ann.
544 327
Marfins v. Willard, 12 Wash. 528 324
Markland Mining Co. v. Kimme,
87 Ind. 560 51
Marlow v. Lacy, 68 Tex. 154 263
Marr v. Burlington, C. R. & N.
Ry. Co., 121 Iowa 117 381
Table of Cases.
515
bEC.
Marree v. Ingle, 69 Ark. 126-. 101
112a, 112b, 112c
Marrow v. Morrow, 2 Tenn. Ch.
365 35
Marryatt v. White, 2 Starkie 101 97
Marsh v. Bank, 2 111. App. 217 • • 26
Marsh v. Griffin, 42 Iowa 403 ■ . 107
362
Marsh v. Low, 55 Ind. 271 15
Marsh v. People, 15 111. 284.. 249
258
Marsh v. Phillips (Tex. Civ.
App. 1912), 144 S. W. 1160 111
Marshall v. Hudson, 9 Yerg.
(Tenn.) 88 134, 173
Marshalltown Stone Co. v. Louis
Drach Const. Co., 123 Fed. 746 134
Martin v. Bank, 6 Har. & Johns.
(Md). 225 99
Martin v. Curtis (Mich.), 77 N.
W. 690 385
Martin v. Ellerbe, 70 Ala. 326-35, 174
Martin v. Empire State Surety
Co., 53 Wash. 290 112c, 112e
Martin v. Fraatz, 127 Pa. St. 389 211
Martin v. Hann, 32 App. Div. (N.
Y.) 602 265
Martin v. Hodge (S. C. 1910), 69
S. E. 225 224
Martin v. Kilbourn, 12 Heisk.
(Tenn.) 331 224
Martin v. Moore, 2 Strange 922 217
l^Iartin v. Porter, 32 App. Div.
(N. Y.) 602 243
Martin v. Smith, 136 N. Y. 804 323
Martin v. Tally, 72 Ala. 23- • -65, 243
Martin v. White, 128 Mo. App.
117 66, 112c, 112d, 442
Martin v. Wright, 6 Adol. & E.
917 352
Martindale v. Brock, 41 Md. 571 164
Martin's Estate, 131 Pa. St. 638 343
Marvin v. Stone, 2 Cow. (N. Y.)
781 252
Mason v. Lord, 20 Pick. (Mass.)
447 198, 202
Mason v. Pierrson, 69 Wis. 590. .194a
bEC.
Mason v. Pritchard, 12 East 227 67
354
Mason v. Standard Distilling &
Distributing Co., 85 App. Div.
(N. Y.) 520 361
Massachusetts Bonding & Ins.
Co. V. Realty Trust Co. (Ga.
1912), 73 S. E. 1053 112e
Masser v. Strickland, 17 S. & R.
(Pa.) 354 227
Massie v. Mann, 17 Iowa 131 27
Mathews v. Phelps, 61 Mich. 327 356
Mathews v. Switzler, 46 Mo. 301 97
Matley v. Harris, 1 Lea (Tenn.)
577 155, 157
Matteson v. Moone, 25 R. I. 129 374
381
Matthew v. Garman, 110 Mich.
559 83
Matthews v. Hall, 21 W. Va. 510 186
Matthews v. Skinker, 62 Mo.
329 29
Mattingly v. Riley, 20 Ky. Law.
Rep. 1621 104
Mattingly v. Sutton, 19 W. Va.
19 162
IMattoon v. Cowing, 13 Gray
(Mass.) 387 261
Mauran v. Bullus, 16 Pet. (U.
S.) 528 356
Maxwell v. Wright (Ind. App.
1902), 64 N. E. 893 78
May V. Chicago Crayon Co. (Civ.
App. 1912), 147 S. W. 733 66
May V. Hammond, 144 Mass. 151 6
May V. Horn, 2 Harr. 190 70, 305
May V. May, 19 Fla. 373 183
May V. Vann, 15 Fla. 533 211
May V. Walker, 20 Pa. Super. Ct.
581 381, 391
May V. Williams, 61 Miss. 125.- 382
383, 395
Mayberry v. Bainton, 2 Harr. 24 26
Mayer v. Isaacs, 6 Mees. & W.
605 356
Mayes v. Lane, 25 Ky. Law Rep.
824 112..
516
Table of Cases.
iSEC.
Mayhew v. Boyd, 5 Md. 102 67
Mayhew v. Crickett, 2 Swan. 185 170
Maynard v. Morse, 36 Vt. 617 ■ ■ 348
355
Mayor v. Crowell, 40 N. J. L.
207 70, 305
Mayor v. Horn, 2 Harr (Del.)
190 305
Mayor v. Kelly, 98 N. Y. 468 80
Mayor v. Kennett, 12 Lea
(Tenn.) 700 143
Mayor v. Merritt, 27 La. Ann.
568 337
Mayor V. Wright, 16 Q. B. 63 71
Maysville Telephone Co. v. First
JVat. Bank, 142 Ky. 578 . • 174, 180
183
"Mazro v. Puller, 24 Wend. (N.
Y.) 374 108
McAllister v. Clark, 86 111. 236- • 237
McAllister v. Irwin's Estate, 31
Colo. 253 194, 196
Mc Arthur v. McGilvray, 1 Ga.
App. 643 67a
McBroom v. Cheboygan Brewing
& Malting Co., 162 Mich. 323 • • 30
McCallum v. McClarren, 15 Ida.
374 385
McCampbell v. Fountain Head
R. Co., Ill Tenn. 55 30
McCarty v. Frazer, 62 Mo. 263 • 251
McCarty v. Roots, 21 How. (U.
S.) 437 206, 210
McCartney v. Ridgway, 160 111.
129 66, 100
McCaughey v. Smith, 27 N. Y. 39 110
McClatchie v. Durham, 44 Mich.
435 211
McClelland v. Chambers, 1 Bibb.
(Ky.) 336 428
McClurg V. Fryer, 15 Pa. St. 293 359
McCluskey v. Cromwell, 11 N. Y.
93 66
McCollum V. Boughton, 132 Mo.
601 165, 199
McCollum V. Cushing, 22 Ark.
542 355
Sec.
McCollum V. Hickley, 9 Vt. 143 146
McComb V. Kittridge, 14 Ohio
348 46
McCombs V. Allen, 82 N. Y. 114 131
216
McCormick v. Bay City, 23 Mich.
457 51, 56
McCormick v. Irwin, 35 Pa. St.
Ill 73
McCormick v. Thompson, 10
Neb. 484 334
McCormick Harvesting Mach.
Co. V. Reiner, 4 Kan. App. 725 26
McCoslin V. David, 22 Tex. Civ.
App. 53 238
McCoy V. Scott, 2 Rawle (Pa.)
222 246
McCreery v. National Surety Co.,
226 Pa. St. 450 144a
McCrory v. Parks, 18 Ohio St. 1 190
McCune v. Belt, 45 Mo. 174 210
McDoal V. Yeomans, 8 Watts
(Pa.) 361 357
McDonald Exp., 2 Whart. (Pa.)
440 420
McDonald v. Atkins, 13 Neb. 568 329
332
McDonald v. General Construc-
tion Co., 152 Iowa 273 392
McDonald v. Felt, 49 Cal. 354.. 219
231
McDonald v. Harris, 75 111. App.
Ill 66, 67
McDonald v. Loersen (Mo. App.
1910), 130 S. W. 52 74
McDonald v. Magruder, 3 Pet.
(U. S.) 470. . . .10, 16, 194, 206, 210
McDonald v. O'Shea, 55 Wash.
169 172
McDonald v. Tootle, Weahley
Millinery Co., 64 Neb. 577... 341
McDonald v. Wood, 118 Ala. 589 384
McDonald, Ex parte, 2 Wheat
(U. S.) 440 418
McDonald Sticker & Co. t.
Sharp, 157 111. App. 165 386
Table of Cases.
»17
feEC.
McDonough v. Nowlin (Cal. App.
1911), 118 Pac. 463 178, 180
McDougald v. Development Co.,
117 Cal. 87 341
McDowell V. Bank, 1 Harr.
(Del.) 369 99
McFadden v. Fritz, 110 Ind. 1-- 238
McFarland v. Wilber, 35 Vt. 342 411
McFarlane v. Milwaukee, 51
Wis. 691 360
McFarlane v. Howell, 91 Tex.
218 226
McFarlane v. Wadhams, 176
Fed. 82 361
McFarlane v. Williams, 177 Fed.
82 370
McGaughey v. Jacoby, 54 Ohio
St. 487 251
McGlothlin v. Wyatt, 1 Lea
(Tenn.) 717 260
McGraw v. Governor, 19 Ala. 89 325
McGooney v. State, 20 Ohio St.
93 66
McGuire v. Williams, 123 N. C.
349 337
McGurk V. Huggett, 50 Mich. 187 206
McHardy v. Wadsworth, 8 Mich.
350 144
Mcllhenney v. Blum, 68 Tex.
197 147
Mclntire v. Cottrell, 185 Mass.
178 253, 258
Mclntire v. Schiffer, 31 Colo.
246 379, 381
Mcintosh-Huntington Co. v.
Reed, 89 Fed. 464 2, 4
McKay v. Ward, 57 Utah 1024. . 11
McKee v. Needles, 123 Iowa 195,
98 N. W. 618 348
McKelvy v. Berry, 21 Pa. Super.
Ct. 276 144a
McKenna v. George, 2 Rich Eq.
15 197
McKenzie v. Ward, 58 N. H. 541 290
McKichen v. Webb, 6 How. 292 66
McKim V. Haley, 173 Mass. 112 65
243
Sec.
McKim V. Morse, 130 Mass. 439 261
McKinney v. Armstrong, 97 111.
App. 208 374
McKinnon v. Boardman, 170
Fed. 920 366
McKissack v. McClendon, 133
Ala. 558 54
McKnight v. Bradley, 10 Rich
Eq. (S. C.) 557 189
McKnight v. Strong, 25 Ark. 212 217
McLaren v. McMartin, 36 N. Y.
88 90
McLaren v. Watson, 26 Wend.
(N. Y.) 425 339, 357
McLaughlin v. McGovern, 34
Barb. (N. Y.) 208 366
McLean v. McLean, 88 N. C. 794 253
McLean v. State, 8 Heisk.
(Tenn.) 22 61, 337
McLin v. Harvey (Ga. App.
1910), 69 S. E. 123 194, 194a
McLondon v. Mortg. Co., 119
Ala. 518 334
McMillan v. Parkell, 64 Mo. 286 58
JMcMillen v. Mason, 71 Wis. 405 193
McMucken v. Safford, 197 III.
540 .341
McMullen v. Rafferty, 89 N. Y.
456. ... • 90
McMullen v. United States, 167
Fed. 460. . . .66, 100, 101, 112b, 113
McMullen v. Winfield Building
& Loan Assn., 64 Kan. 298 69
70, 74, 75, 282, 291
McNaught v. McClaughry, 42 N.
Y. 22 39, 41, 342
McNee v. Sewell, 14 Neb. 532 .. . 325
McNairy v. Eastland, 10 Yerg.
310 163
McNeilly v. Driscoll, 208 Mass.
293 217
McNeilly v. Patchin, 23 Mo. 40. . 165
210
McNutt v. Livingston, 7 Sm. &
M. (Miss.) 64. . 333
McPharlin v. Fidelity and De-
518
Table of Cases.
Sec.
posit Co. of Maryland (Mich.
1910), 127 N. W. 307 95
McPhillips V. McGrath, 117 Ala.
549 302, 303, 308
McQuewans v. Hamlin, 5 Pa. St.
517 26
JMcTaggart v. Watson, 3 CI. &
F. 536. . . 291
McVey v. Peddle, 69 Neb. 525 • ■ 225
McWilliams v. Mason, 31 N. Y.
294. ... 100, 287
Meade v. McDowell, 5 Bing.
(Pa.) 195 371
Means v. Worthington (Tex.
Civ. App. 1912), 147 S. W. 345 153
■Mechanics & Traders' Nat. Bank
V. Winant, 123 N. Y. 265 112
Mecomey v. Stanley, 8 Cush. 85. 44
Midlin v. Commonwealth, 11
Bush (Ky.) 605. 424
Meeker v. Waldron, 62 Neb. 689 151
Meldrum v. Kenefick, 15 S. D.
370. ... 381, 391
Melendy v. Capen, 120 Mass. 222 354
Melone v. Keener, 44 Pa. St. 107 390
Melville v. Dodge, 6 M. G. & S.
450. . . . 285
Menard v. Scudder, 7 La. Ann.
385. . . . ...*.... 346
Mercantile Trust Co. v. Hensey,
205 U. S. 298 112f
Merchants & Manufacturer's
Nat. Bank v. Cummings, 149
N. Y. 36 182
Merchants' Ins. Co. v. Huler, 68
Me. 420. . . 97
Merchants' National Bank v.
Cole, 83 Ohio 50, 93 N. E. 465 340
354
Merchants' Nat. Bank v. Eyre,
107 Iowa 13 10
Merchants Nat. Bank v. Hall,
83 N. Y. 338. . . 66
Merchants' Nat. Bank v. Ryan,
67 Ohio St. 448 35
Sbc.
Merchants' National Bank t.
Worcester. 75 N. H. 495. . 113a
Marcy v. Praeger, 34 La. Ann.
54. . . 74
Merriam v. McManus, 102 Pa.
St. 102. . . 396
Merrill v. Harris, 26 N. H. 142.. 252
Merriman v. Baker, 121 Ind. 74 122
Merriman v. McManus, 102 Pa
St. 102 377, 391, 393
Merritt v. Haas (Minn. 1911),
129 N. W. 379. . 3a
Mersman v. Werges, 112 U. S.
139 104, 110
Merwin v. Austin, 58 Conn. 22. 144
Meyer v. Barth, 97 Wis. 352. .65, 243
Meyer v. Haitman, 72 111. 442.. 397
Meyer v. Parsons, 129 Cal. 653- • 387
Meyers v. Campbell, 59 N. J. L.
378. . . 151
Meyers v. Miller, 4 W. Va. 395 . . 152
Meyers v. Wood, 26 Tex. Civ.
App. 591. . 112c, 112e
Meyers v. Yaple, 65 Mich. 403 154
Michael v. Allbright, 126 Ind.
172 196
Michell V. Roberts, 17 Fed. 776. 13i
Mich. State Ins. Co. v. Soule,
51 Mich. 312. . . 147
Middleboro Nat. Bank v. Rich-
ards, 55 Neb. 682. . 51
-Middlesex Manuf. Co. v. Law-
rence, 1 Allen (Mass.) 339... 282
Middle States, Etc. Co. v.
Engle, 45 W. Va. 588 359, 364
Middleton v. Hensley (Ky.),
52 S. W. 974. . 260
Mieswindle v. Jung, 30 Wis. 361 115
Mighton v. Scott, 38 Ohio St.
650. . . . 256
Milan Bank v. Richmond, 235
Mo. 532. . . . 77, 126
Miles V. Davis, 36 Tex. 690 238
Miles V. Linnell, 97 Mass. 298-. 371
Miller v. Baker, 25 Ky. Law.
Rep. 1858 222
Table of Cases.
519
Sec
Miller v. Berkey, 27 Pa. St. 317 4
Miller v. Ferris, 10 Upper Can.
423 54
Miller v. Finley, 26 Mich. 249.. 110
Miller v. Friedheim, 82 Ark.
592 ..66, 112
Miller v. Gaston, 2 Hill 192 357
Miller v. Gillespie, 59 Me. 220.. 212
Miller v. Gilliland, 19 Pa. St.
119 105
Miller v. Lewiston National
Bank (Idaho 1910), 108 Pac.
901 ..339, 353
Miller v. Montgomery, 31 111.
350 98
Miller v. Pitts, 152 N. C. 629... 171
Miller v. Spain, 41 Ohio St. 376 113
Miller v. State, 158 Ala. 73 421
Miller v. Stem, 12 Pa. St. 383.. 129
Miller v. Stem, 2 Pa. St. 286 119
Miller v. Stevens, 9 Wheat. (U.
S.) 680 80
Miller v. Stewart, 9 Wheat. (U.
S.) 681. . . 66, 68, 72, 102, 286, 312
Miller V. Stout, 5 Del. Ch. 262. . 35
174
Milligen v. Gallen, 64 Neb. 561 . . 325
Milligan v. Holbrook, 168 111.
343. . . 347
Milliken v. Callahan, 69 Tex.
205 129
Milliken v. Pratt, 125 Mass. 374 93
Millikin v. State, 7 Blackf.
(Ind.) 77. . . 70
Mills V. Brown, 11 Iowa 314.382, 384
Mills V. Fowkes, 5 Bing. N. C.
455 98
Mills V. Hyde, 19 Vt. 59 196
Milner v. Green, 2 Johns. Cas.
(N. Y.) 283. 411
Milwaukee v. United States Fi-
delity & Guaranty Co., 144
Wis. 603 309, 339
Milwaukee Co. v. Ehlers, 45
Wis. 281. . . 310
Sec.
Milwaukee Co. v. Pabst, 70 Wis.
352 310
Mineau v. Imperial Dredge &
Exploration Co., 19 Ida. 458.. 387
Miniek v. Huff, 41 Neb. 516 382
Minkle v. State ex rel. Smith-
ers, 14 Nev. 181 163
Minor v. Bank, 1 Pet. (U. S.)
46 285
Mintern v. United States, 106 U.
S. 437 314
Mississippi Co. v. Jackson, 51
Mo. 23. . . 61
Mitchell V. Commonwealth, 12
Bush (Ky.) 247 422
Mitchell V. Hydraulic Building
Stone Co. (Tex. Civ. App.
1910), 129 S. W. 148 54
Mitchell V. Railton, 45 Mo. App.
27. . 340
Mitchell V. Rice, 132 Ala. 120, 31
So. 498. . . 317
Mix V. People, 26 111. 32 426
Mix V. Singleton, 86 111. 194. .. . 235
Mix V. Vail, 86 111. 40 233, 235
Moakley v. Riggs, 19 John. (N.
Y.) 69.. . 359
Mobile & O. R. Co. v. Nicholas,
98 Ala. 92. . . 2
Mobile, Etc. R. R. Co. v. Brewer,
76 Ala. 135. . 282
Mockett v. Boston Iron Co., 2
Nebr. (Unoff.) 500 117
Moffett V. Koch, 106 La. 371 34
Moffitt v. Roche, 77 Ind. 48 165
Movies V. Bird, 11 Mass. 436... 42
Moloney v. Nelson, 158 N. Y.
351 416
Monarch Co. v. Farmers' &
Drovers' Bank, 105 Ky. 430... 30
Monroe v. Gifford, 35 Iowa 646. 233
Monson v. Drakeley, 40 Conn.
552. . . 168, 194
Monson v. Meyer, 195 111. 142.. 224
Montague v. Fidcombe, 2 Vern.
518 292
520
Table of Cases.
Sec
Montefiore v. Lloyd, 15 C. B. N.
S. 203 83
Monteith v. Commonwealth, 15
Gratt. (Va.) 172, 185. 63
Montgomery v. Kellog, 43 Miss.
486 352
Montgomery v. Page, 29 Oreg.
320. . 210
Montgomery Co. Bank v. Bank,
7 N. Y. 459. . 336
Montgomery County v. Coch-
ran, 121 Fed. 17. 317
Montgomery Railroad v. Hurst,
9 Ala. 513. . 110
Monticello v. Lowell, 70 Me. 437 316
Montpelier v. Clarke, 67 Vt. 479 337
Montstephen v. Lakeman, L. R.
5 N. S. 613 392
Moodick V. Penman, 3 Desaus
(S. C.) . . 253
Moody V. Findley, 43 Ala. 167. 3
Moody V. Haworth, 24 Ind. App.
634 2
Mooney v. People, 81 111. 134... 423
Mooney v. State, 13 Mo. 7. . . • • . 313
Moore v. Allegheny City, 18 Pa.
St. 55 337
Moore v. Bowmaker, 3 Price
214. . . . 241
Moore v. Bruner, 31 111. App.
400. . . 196, 200
Moore v. Campbell. 36 Vt. 361.. 163
Moore v. Cross, 19 N. Y. 27.... 307
Moore V. Gray, 26 Ohio 525 128
Moore v. Lindsay (Tex. Civ.
App.), 71 S. W. 298. 325
Moore v. McKenney, 83 Me. 80- ■ 43
Moore v. Redding, 69 Miss. 841. 46
47
Moore v. Stanwood, 98 111. 605. 133
Moore v. Topliff, 107 111. 241.. 20
157, 193
Moore v. Title Guaranty &
Trust, 151 Mo. App. 256.- -66, 67
Moore v. Wallis, 18 Ala. 458... 85
306, 345
Moore & Co. v. Rooks, 71 Ark.
562 306
Moorehead v. State, 38 Kan.
489 431
Moore Lumber Co. v. William-
son, 110 Va. 775 341
Moorman v. Hudson, 125 Ind.
504 . 208
Moran v. Prather, 23 Wall. (U.
S.) 492. ... 26
Moretz v. Ray, 75 N. C. 170 320
Morgan v. Blackiston, 5 Har. &
J. (Md.) 61. . 232
Morgan v. Long, 29 Iowa 434.. 329
332
Morgan v. People, 87 111. 76 242
Morgan v. Smith, 70 N. Y. 537. • 111
116, 198, 202
Morgan v. Thompson, 60 Iowa
280 113, 119, 171
Morgan v. West, 43 Ga. 275.242, 258
Morgan & Bros. v. Missouri K.
& T. Ry. Co. (Tex. Civ. App.
1908), 110 S. W. 978 30
Morienthal v. Mosler, 16 Ohio
St. 566 90
Moris V. Bird, 11 Mass. 436 39
Morley v. Brothly, 10 J. B.
Moore 395. . . 40
Morley v. Metamora, 78 111. 394. 9
289, 301
Morrill v. Baggott, 157 111. 240 362
Morrill v. Lamson, 139 Mass.
115. . . . 27
Morris v. Cleasby, 4 Maule &
Sel. 566 394
Morris v. Cooper, 35 Kan. 156. 244
261
Morris v. Morris, 9 Heisk.
(Tenn.) 814 247, 250
Morris & Co. v. Lucker, 158
Mich. 518. . . . 356
Morris Canal v. Van Vorst, 21
N. J. L. 100 72
286, 291, 293, 295
Morrissey v. Kinsey, 16 Neb. 17 391
Table of Cases,
521
Sec.
Morrison v. Berkey, 7 Serg. &
R. 238 . . . 180, 195
Morrison v. Citizens' National
Bank, 65 N. H. 253 ... .97, 123, 131
Morrison v. Poyntz, 7 Dana
(Ky.) 307 196, 197, 202
Morrison v. Schlesinger, 10 Ind.
App. 665 365
Morrow v. Penton, 8 Leigh.
(Va.) 54. . . . 254
Morrow v. State, 6 Kan. 222 437
Morrow v. Wood, 56 Ala. 3 310
Morse v. Blanchard, 117 Mich.
37 46
Morse v. Williams, 22 Me. 17- . . 168
Mortenson v. Bergthold, 64 Neb.
208. . . . 253
Mortland v. Hines, 8 Pa. St. 268. 147
Moses V. Murgatroyd, 1 John.
Ch. (N. Y.) 119 151
Moses V. United States, 166 U. S.
571. . . . 65, 292
Mosher v. Murphy, 121 Mass.
276 213
Moshier v. Kitchell, 87 111. 18.. 388
Moss V. Craft, 10 Mo. 720 131
Moss V. Pittinger, 3 Minn. 217. • 64
131
Moss V. Riddle, 5 Cranch (U.
S.) 351. ... 49
Mott V. Hazen, 27 Vt. 208 411
Mott Iron Works v. Clark (S. C.
1910), 69 S. E. 227 339, 348
Moulding v. Wilhartz, 169 111.
422 65
Moulding v. Wilhartz, 67 111.
App. 659. . . 277
Moulton V. Cornish, 33 App.
Div. C. 228 66, 67
Mount V. Commonwealth, 2
Bibb. (Ky.) 95 420
Mount Pleasant Bank v. Pol-
lock, 1 Ohio 35 412
Mowbray v. State, 88 Ind. 327- . 85
Mowing, etc.. Machine Co. v.
Land, 98 Ky. 576. . 366
;tpj " ' tsEc.
Mowry v. Adams, 14 Mass. 337. 178
Moyses V. Schendorf, 238 111.
232 114
Moyses v. Schendorf, 142 111.
App. 293 114
Mozingo V. Ross, 150 Ind. 688.90, 91
Mt. Sterling Imp. Co. v. Cock-
rell, 24 Ky. Law Rep. 115... 128
131, 132
Mueller v. Barge, 54 Minn. 314. 208
Mueller v. Dobschuetz, 89 111.
176 116
Mulcrone v. American Lumber
Co., 55 Mich. 622 385.
Mulert V. Real Estate & Trust
Co. of Pittsburg, 226 Pa. St.
602 Ill
Mullen V. Morris, 43 Neb. 596. 52
Mullendore v. Weitz, 75 Ind.
431 120
Mullikin v. State, 7 Blackf.
(Ind.) 77. . . . 285
Mumford v. Railroad Co., 2 Lea
(Tenn.) 393 .66, 72
Municipal Court v. Whaley 25
R. I. 289 249
Munoz V. Brassel (Tex. Civ.
App. 1908), 108 S. W. 417. .. . 30
Munroe v. Towers, 2 Cranch
C. C. 187. . . 408
Murphy v. Dorsey, 23 Ohio Cir.
Ct. R. 157. . . 242
Murphy v. Ottman, 127 App.
Div. (N. Y.) 563 Ill
Murray v. Wood, 144 Mass. 195. 264
Museum of Fine Arts v. Ameri-
can Bonding Co. (Mass. 1912),
97 N. E. 633 100, 112e
Music v. Music, 7 Mo. 495 392
Mussey v. Raynor, 22 Pick.
(Mass.) 228. ... 356
Mutual Loan & Banking Co. v.
Hope, 112 Ga. 729 ..362
Muzzy v. Shattuck, 1 Denio 233 316
Myers v. Bank, 78 111. 257 115
Myers v. Farmer, 52 Iowa 20 . . . 70
S2a
Table of Case*.
Sec
Myers v. Kiowa Co., GO Kan. 189 317
Myers v. Edge, 7 T. R. 254 84
Myers v. Miller, 45 W. Va. 595- . 338
Myers v. United States, 1 Mc-
Lean 493 303
Myers v. Welles, 5 Hill (N. Y.)
463. . . . 122
Mystic Works of the World v.
United States Fidelity &
Guaranty Co., 152 111. App. 223 66
N.
-Nading v. McGregor, 121 Ind.
465. . . . 348
Nagill V. Brown Bros., 20 Tex.
Civ. App. 662. ... 2
Narre v. Chittenden, 56 Ind. 462 210
Nanz V. Oakley, 120 N. Y. 84.. 23
Nash V. Fugate, 32 Gratt (Va.)
595. ... 51
Nash V. Sawyer, 114 Iowa 742.. 257
Nathan v. Sloan, 34 Ark. 524... 347
National Bank v. Cotton, 53
Wis. 317. . . . 371
National Bank v. Grand Lodge,
98 U. S. 123, 124 12
National Bank v. Phelps, 92 N.
Y. 44. . . . 72
National Bank of Commerce v.
Gaar, 23 Ohio Cir. Ct. R. 447. 356
National Bank of Commerce v.
Rockfeller, 174 Fed. 22... 339, 356
National Bank of Commerce v.
Schirm, 3 Cal. App. 696 2
National Bank of Ft. Wayne v.
Stockyards Bank, 138 App.
Div. (N. Y.) 918. 354
National Bank of Newport v
Snyder Mfg. Co., 117 App.
Div. (N. Y.) 370. 28
National Bank of Rolla v. First
National Bank (Mo. App.
1910), 125 S. W 513 366
National Bank of Western
Pennsylvania v. Lake Erie
Sb«.
Asphalt Co. (Pa. 1912), 82 Atl.
773 se
National Eagle Bank v. Hunt,
16 R. I. 148. 344, 346, 361
National Fire Ins. Co. v. Rowe,
20 Ky. Law Rep. 1473 401
National Home Building Asso.
v. Home Sav. Bank, 181 111.
35. . . . 3«
National Machine Bank v. Peck,
127 Mass. 298 9*
National Park Bank v. Koehler,
204 N. Y. 174. . . 66, US
National Park Bank v. Koehler,
137 App. Div. (N. Y.) 785.... 11«
National Park Bank v. Koehler,
65 Misc. R. (N. Y.) 390 llC
National Rubber Co. v. Sims, 44
Neb. 148. . . . 394
National Surety Co. v. Di Mar-
sico, 55 Misc. R. 302. ...7, 194, 201
National Surety Co. v. Long,
125 Fed. 887. . . 144a
National Surety Co. v. Schneid-
ermann (Ind. App. 1911), 96
N. E. 955 12S
National Surety Co. v. United
States, 123 Fed. 294 S
Neagle v. Sprague, 63 111. App.
25. . . . 355
Neel V. Harding, 2 Mete. 247... 171
Neff V. Homer, 63 Pa. St. 327-. 55
107
Neff's Appeal, 9 Watts & S.
(Pa.) 36 130, 137
Nehr v. German Congregation,
47 Md. 177. . . 104
Neil V. Morgan, 28 111. 524. 53
Nelson v. Boynton, 3 Met. 396. 391
392
Nelson v. City of Albert Lea, 87
Minn. 285. . . . 235a
Nelson v. Flagg, 18 Wash. 39 . . 47
Nelson v. Woodbury, 1 Me. 251. 253
Nettleton v. Billings, 17 N. H.
453. . . . 408. 412
Table of Cases.
523
Sec.
Nevitt V. Woodburn, 160 111. 203 63
65, 243
Newark, City of v. New Jersey
Asphalt Co., 68 N. J. L. 458. 94
112c
Newbern Bank v. Jones, 2 Dev.
Eq. (N. C.) 284 333
Newburgh Bank v. Smith, 66 N.
Y. 271 99
Newbury v. Davis, 209 Mass. 126 301
Newcomb v. Kloeblen, 77 N. J.
L. 791 353, 354, 356
Newcomer v. State, 77 Tex. 286. 69
New Haven v. Cludsey, 68 Conn.
397. . . . 321
New Haven Bank v. Miles, 5
Conn. 587 405, 407
New Haven, City of v. Eastern
Pav. Brick Co., 78 Conn. 689 67
73, 74, 144a, 442
New Haven Co. v. Mitchell, 15
Conn. 206. . . 348
New Home Sewing Mach. Co. v.
Seago, 128 N. C. 158 74
New Home Sewing Mach. Co. v.
Simon, 104 Wis. 120, 80 N. W.
71 365
Newlan v. Harrington, 24 111.
206 103, 109
Newman v. Coza, 2 La. Ann. 642 176
Newmarket Sav. Bank v. Han-
son, 67 N. H. 501, 509. 14
New Orleans v. Gauthreaux, 39
La. Ann. 109. . . . , 308
New Orleans Canal Banking Co.
V. Hogan, 1 La. Ann. 62 . 68
New Times Pub. Co. v. Doolittle
(Colo. 1911), 118 Pac. 974. .2, 144a
Newton v. Field, 16 Ark. 216... 163
Newton v. Newton, 53 N. H. 537. 23
Newton Wagon Co. v. Deers, 10
Neb. 284. . . 349
New York Bank Note Co. v.
Kerr, 77 111. App. 53...... 95, 193
New York Car Wheel Works, In
re (U. S. C. C). 141 Fed. 430 30
Sec.
New York, City of v. Clark, 84
App. Div. (N. Y.) 383 Ill
-ew York, City of v. Seely Tay-
lor Co., 149 App. Div. (N. Y.)
98. . . . 93a
New York Firemen's Ins Co. v.
Bennett, 5 Conn. 574. 26
Xew York State Bank v.
Fletcher, 5 Wend. (N. Y.) 85. 165
Mblo V. Clark, 6 Wend. (N. Y.)
236 414
Aiblo V. Clark, 3 Wend. (N. Y.)
24 414
Xichols V. Ingersoll, 7 Johns.
(X. Y.) 145. . . 414
..ichols V. Palmer, 48 Wis. 110. Ill
Xichols V. Parsons, 6 N. H. 30-. 171
Xichols & Shepard Co. v. Did-
rick, 61 Minn. 513. 41
Xicholson v. State, 2 Ga. 363... 431
.\ick Peay Const. Co. v. Miller
(Ark. 1911), 139 S. W. 1107-.. 144a
nightingale v. Withington, 15
Mass. 272. . . 24
xilson V. Fry, 16 Ohio St. 552.. 194
axon V. Beard, 111 Ind. 137... 195
:oble V. Blount, 77 Mo. 235-... 190
Noble V. Oil Co., 69 Pa. St. 407. 224
\oll V. Smith, 68 Ind. 168 224
Nolly V. County Court, 11 Mo.
447. ... 75
■ ordly V. Winsor, 24 Wash. 535 397
Norfolk V. People, 43 111. 9.. 414, 421
\orman v. Buckner, 135 U. S.
500 254
Vorridgewock v. Hale, 80 Me.
362. . . . 70
Vorris v. Towle, 54 N. H. 290- • 252
\orthern Ins. Co. v. Wright, 76
N. Y. 445 360
N'orthern Light Lodge v. Ken-
nedy, 7 N. H. 146 67
Northern Pac. Ry. Co. v. Owens,
86 Minn. 188. . . 329
Xorthern State Bank of Grand
624
Table of Cases.
Sec
Forks V. Belle, 19 N. D. 501,
509. . . . 2, 4, 339, 363
North rup Nat. Bank v. Varner,
82 Kan. G91 276
North Side R. R. Co. v. Worth-
ington, 88 Tex. 562. 28
North St. Louis Building &
Loan Assn. v. Obert, 169 Mo.
507 70, 74, 282
North St. Louis Planing Mill
Co. V. Essex, 157 Mo. App. 18. 31
54
North St. Louis Planing Mill Co.
V. Christophel (Mo. App.
1911), 137 S. W. 295. 49
Northwestern Railway Co. v.
Whinary, 10 Exch. 77..... 286, 297
Northwestern Townsite Co. v.
Fidelity & Deposit Co. of
Maryland, 180 Fed. 702 285
Norton V. Bank, 61 N. H. 58928, 29
Norton v. Coons, 6 N. Y. 33.194, 203
Norton v. Eastman, 4 Me. 521 • . 362
Norton v. Miller, 25 Ark. 108.59, 266
Norwalk v. Ireland, 68 Conn. 1. 324
Norwegian Evangelical Luth-
eran, Bethlehem Congrega-
tion V. United States & Fidel-
ity & Guaranty Co., 83 Minn.
269 112a
Norwood V. Washington, 136
Ala. 657. . . 201
Nourse v. Weitz, 120 Iowa 708. 177
189
Novak V. Pitlick, 120 Iowa 286. 54
Nowland v. Martin, 1 Ired. (N.
C.) 397. . . 180
Noxon V. De Wolf, 10 Gray
(Mass.) 43 347
Noyes v. Granger, 51 Iowa 227. 79
224
Noyes v. Humphreys, 11 Graft
(Va.) 635 381
Nugent v. Wolfe, 111 Pa. St.
471. . . . 382, 383
Nunn V. Carroll, 83 Mo. App. 135 374
Sec..
Nunnery v. Day, 64 Miss. 457.. 263
Nutton V. Isaacs, 30 Graft (Va.)
740. . . . 272
O
Oak V. Dustin, 79 Me. 23 32
Oakeley v. Parsheller, 4 CI. &
F. 207 21
Oakland Bank Savings v. Mur-
fey, 68 Cal. 455 336
Obert Brewing Co. v. Wabash
R. Co., 145 Mo. App. 30 341
O'Brien v. Champlain Construc-
tion Co. (U. S. C. C), 107 Fed.
338 363
O'Conner v. State, 18 Ohio 225. 65
243
O'Conner v. Bragly, 112 Cal. 31. 139
Odell V. Wootten, 38 Ga. 224- .. • 224
Odlin V. Greenleaf, 3 N. H. 270. . 200
Odom V. Owen, 2 Baxt. (Tenn.)
446. . . 203, 209
Oelrichs v. Spain, 15 Wall. (U.
S.) 211 237
Offord V. Davis, 12 C. B. N. S.
7 87, 346, 367
Ofterdinger v. Ford, 92 Va. 636. 219
231
Ogden V. People, 62 111. 63 423
Oglebay v. Todd, 166 Ind. 250.. 11
Ohio, Etc. R. R. Co. v. Hardy, 64
Ind. 454. . . 27
Ohio Life Ins. Co. v. Reeder, 18
Ohio St. 40. . 151
Olaughlin v. Carr, 9 Kan. App.
818. . . . 238
Olcott V. Lilly, 4 Johns. (N. Y.)
407 408, 412
Odlham v. Brown, 28 Ohio St.
41 ...194a
Olmstead v. Latimer, 158 N. Y.
313 114
Olmsted v. Olmsted, 38 Conn.
309. ... 68
Olney v. Greene, 13 R. L 350 111
Olson v. Chism, 21 Ind. 40 US'
Table of Cases.
525
Sec.
Olson V. Fish, 75 Minn. 228 59
Omaha National Bank v. John-
son, 111 Wis. 372. 122
Opp V. Ward, 125 Ind. 241 157
191, 224
Oppenheimer v. Hamrick, 86
Iowa 585. . . . 280
Ordinary v. Heishon, 42 N. J. L.
15 267
Ordinary v. Smith, 55 Ga. 15.- 263
Ordinary v. Thacher, 41 N. J. L.
403 50
Orem v. Wrightson, 51 Md. 34. . 338
Ormer v. Young, 1 Holt N. P. 84 143
Orrick v. Colston, 7 Gratt. (Va.)
189. . . 347
Orton V. Lincoln, 156 111. 499.. 311
Orton V. Noonan, 32 Wis. 220-. 404
Oshorn v. Robbins, 36 N. Y.
365 32, 92, 136
Osborne v. Baker, 34 Minn. 307 394
Osborne v. Harper, 5 East 225. 187
Osborne & Co. v. Gullikson, 64
Minn. 218 342, 347
Osborne & Co. v. Stone, 30 Minn.
25 26
Osgood V. Miller, 67 Me. 174... 117
Osterly v. Baker, 66 N. Y. 433 . . 197
Oswald V. Berwick, 1 El. & B.
295 ... 71
Otis V. Von Storch, 15 R. I. 41 . . 171
Otto V. Jackson, 35 111. 349 60
Overend v. Financial Corp., L.
R. 7 H. L. 348 21
Ovington v. Smith, 78 111. 250.. 232
Owen V. Homan, 13 Beav. 196 116
Owen V. Homan, 4 H. L. Cas.
997. . . 126
Owen V. Long, 112 Mass. 403... 24
Owen V. McGehee, 61 Ala. 440. . 22
195, 198
Owen & Co. v. Storms & Co. (N.
J. L. 1909), 72 Atl. 441 28, 30
Owens V. Mynatt, 1 Heisk.
(Tenn.) 675 32
Owings V. Arnot, 33 Mo. 406 .. . 102
Sec.
Owings V. Owings, 3 J. J.
Marsh. 590. . . 186
O.xford Bank v. Hynes, 8 Pick.
423 353
Oxford Bank v. Lewis, 8 Pick.
(Mass,) 458. . . 121
P.
Pace V. Pace's Adm'r, 95 Va. 792 201
Pacific National Bank v. Aetna
Indemnity Co., 33 Wash. 428. . 443
444, 446, 447
Pacific National Bank v. Mixter,
124 U. S. 721 221
Pack V. State, 33 Ark. 235 431
Pahlman v. Taylor, 75 111. 629. . 8
108, 362
Paige V. Parker, 8 Gray (Mass.)
211 348, 355
Paine v. Vorhees, 26 Wis. 522.. 116
Pake V. Wilson, 127 Ala. 240.. 381
398
Palmer v. Bagg, 56 N. Y. 523-. 79
Palmer v. Blinn, 55 Ind. 11 393
Palmer v. Merriwether, 7 J. J.
Marsh (Ky.) 506 412
Palmer v. Pettingil, 6 Idaho 346 337
Palmer v. Pollock, 26 Minn. 433 258
Palmer v. Witcherly, 15 Neb. 98 397
Palmeter v. Casey, 63 Wis. 426- ■ 11
Pam V. Stackhouse, 38 Pa. St.
342 342, 343
Pardee v. Markle, 11 Pa. St. 555 97
Parham Sewing Mach. Co. v.
Brock, 113 Mass. 194.. 79, 83, 101
Parish v. Smith, 66 S. C. 424 238
Park V. Ensign, 66 Kan. 50 65
Parker v. Bidwell, 3 Conn. 84 • - 428
Parker v. Bradley, 2 Hill (N. Y.)
584 54
Parker v. Heaton, 55 Ind. 1 397
Parker v. Medsker, 80 Ind. 155 260
301
Parker v. Pitts, 73 Ind. 597 49
Parker v. Watson, 72 111. 301 .... 1I7
Parker v. Wise, 6 Marsh & S.
239 77
526
Table of Cases.
Sec.
Parker Land & Improvement Co.
V. Ayers, 43 Ind. App. 513 ... . 100
Park Hotel Co. v. Fourth Na-
tional Bank, 86 Fed. 743 30
Parkhurst v. Vail, 73 111. 343 39, 342
Parlin «6; Orendorff Co. v. Hut-
son, 198 111. 389 122
Parmalee v. Lawrence, 44 111.
405 116, 133
Parnell v. Hancock, 48 Cal. 452 224
Parrish v. State, 14 Md. 238 419
Parsons v. Briddock, 2 Vern. 608 73
168, 406
Parsons v. Dickinson, 23 Mich.
56 89
Parsons v. Goyle, 11 Ala. 280.. 173
Parsons v. Harrold, 46 W. Va.
122 46, 115
Parsons v. Kelso, 141 Mo. App.
369 387
Parsons v. Nields, 137 Pa. St.
385 191
Patchin v. Cromack, 13 Vt. 330 24
Patnode v. Deschenes, 15 N. W.
100 113b
Patterson v. Brock, 14 Mo. 473 171
Patterson v. Cone, 61 Mo. 439 . - 92
135
Patterson v. Gibson, 81 Ga. 802 32
Patterson v. Patterson, 23 Pa.
St. 464 194
Patterson v. Reed, 7 Watts & S.
144 353
Patterson's Appeal, 48 Pa. St.
342 277
Pattison v. Hall, 9 Cow. (N. Y.)
747 97
Paul V. Berry, 78 111. 158... 10, 194
Paul V. Jones, 1 Term R. 599.. 6
Paul V. Stackhouse, 39 Pa. St.
302 40
Paulin V. Kaighn, 29 N. J. L.
480 194, 194a
Paulin Jail Building & Mfg. Co.
V. Collins, 138 Wis. 494.. 112a. 128
Pavis V. Hulett, 26 Vt. 308 151
Sec^
Pawlet V. Kelley, 69 Vt. 398 337
Paxton V. State (Neb.), 81 N. W.
383 301
Payne v. State, 45 Ala. 52 42S.
Payne v. Wilson, 1 Man. & Ry.
708 40
Peabody v. Richard Realty Co.,
69 Misc. R. (N. Y.) 582 67
Peabody v. State, 4 Ohio St. 387 328
334
Peacock v. People, 83 111. 331.. 32"
136
Peacock v. State, 44 Tex. 11 425
Peake v. Estate of Dorwin. 25
Vt. 28 171
Pearre v. Folb, 123 N. C. 239. . . 59-
Pearson v. Parker, 3 N. H. 366. • 180
187
Peaslee v. Reed, 10 N. H. 489 173
Peck V. Harris, 57 Mo. App. 467 342
Peck V. Frink, 10 Iowa 193 353
Peebles v. Boone, 116 N. C. 51,
57 329, 337
Peel V. Fatlock, 1 Bos. & P. 419 143
Peele v. Northcote, 7 Taunt. 478 394
Peele v. Powell, 156 N. C. 553 . . 378
386, 390, 397
Pelton V. Spider Lake Sawmill
& Lumber Co., 117 Wis. 569. . 28
Pemberton v. Oakes, 4 Russ. 154 99^
Pendlebury v. Walger, 4 Younge
& Coll. 424, 441 205. 260
Pendleton v. Bank, 1 Mon. (Ky. )
181 298
Peninsular Stove Co. v. Adams
Hardware & Furniture Co., 93
Mo. App. 237 348
Penn v. Collins, 5 Rob. (La.) 213 111
Penn v. Howlett, 27 Graft. (Va.)
337 52
Pennington v. Seal, 49 Miss. 525 174
Pennsylvania R. Co. v. St. Louis
A. & T. H. R. Co., 118 U. S. 290 28
Pennsylvania Trust Co. v. McEl-
roy, 112 Fed. 509 366
Penoyer v. Watson, 11 Johns.
(N. Y.) 100 84
Table of Cases.
i2T
Sec.
People V. Admire, 39 111. 251 242
People V. Anable, 7 Hill (N. Y.)
33 433
People V. Backus, 117 N. Y. 196 67
72, 76, 313
People V. Bartlett, 3 Hill (N.
Y.) 570 426, 428, 433
People V. Bennett, 136 N. Y. 482 433
436
People V. Bostwick, 32 N. Y. 445 51
People V. Brady, 19 Civ. Pro.
Rep. (N. Y.) 372 435
People V. Bugbee, 1 Idaho 88.- 419
People V Burton, 5 Seld. 176.. 61
People V. Butler, 74 Mich. 643 ■ . 336
People V. Carroll, 151 Mich. 233 67
People V. Caskney, 44 Barb. (N.
Y.) 118 431
People V. Chalmers, 60 N. Y.
154 280
People V. Colby, 39 Mich. 456.. 336
People V. Collins, 7 Johns. (N.
Y.) 549 304, 309
People V. Coman, 5 Daly (N. Y.)
527 434
People V. Cooney, 9 N. Y. Supp.
285 436
People V. Dikeman, 3 Abb. App.
Dec. 520 325
People V. Faulkner, 107 N. Y.
477 300
People V. Felton, 36 Barb. (N.
Y.) 429 431
People V. Fields, 6 Daly (N. Y.)
410 434
People V. Foster, 133 111. 496-. 323
325, 328
People V. Gordon, 39 Mich. 259 423
People V. Hartley, 21 Col. 585.. 54
People V. Hathaway, 206 111. 52 408
411
People V. Hathaway, 102 111.
App. 628 405, 411
People V. Higgins, 7 N. Y. Supp.
658 436
People V. Hilton, 36 Fed. 172.. 311
People r. Hobbs, 46 111. App. 206 436
Sec.
People V. Hoffman, 182 111. 390 242
244, 261
People V. Hunter, 89 111. 392 256
People V. Huson, 78 Cal. 154 59
People V. Ingersoll, 14 Abb. Pr.,
N. S. (N. Y.) 23 41*
People V. Jansen, 7 Johns. (N.
Y.) 332 170
People V. Johnson, 4 N. Y. Supp.
705 436
People V. Lee, 104 N. Y. 441-. 339
People V. Lott, 27 111. 215 257
People V. Lucas, 93 N. Y. 585.. 311
324
People V. MacGregor, 147 App.
Div. (N. Y.) 488 42S
People V. Madden, 8 N. Y. Supp.
531 436
People V. Manning, 8 Cow. (N.
Y.) 297 428, 434
People V. McFarland, 9 111. App.
275 419, 434
People V. McHatton, 2 Gil. (111.)
732 305, 313
People V. McKenna, 62 App. Div.
(N. Y.) 327 423
People V. McReynolds, 102 Cal.
308 421, 424
People V. Meehan, 14 Daly (N.
Y.) 333 434
People V. Mersereau, 74 Mich.
687 324
People V. Metropolitan Surety
Co., 148 App. Div. (N. Y.) 503 151
People V. Millham, 100 N. Y. 273 423
People V. Miller, 2 111. 83 1
People V. Miller, 63 App. DIt.
(N. Y.) 11 423
People V. Moon, 3 Scam. 123 310
People V. Morrison, 75 Mich. 30 417
People V. Parker, 146 111. App.
534 414
People V. Pacific Surety Co.
(Colo.) 109 Pac. 961 323
People V. Pennock, 60 N. Y. 421 70
311
People V. Rice, 79 Mich. 354 65
^28
Table of Cases.
Sec.
People V. Rich, 36 App. Div. (N.
Y.) 60 ^.28
People V. Robb, 98 Mich. 397.. 426
People V. Rose, 174 111. 310- ■■ 443
People V. Russell, 35 Misc. R.
(N. Y.) 765 431
People V. Russell, 4 Wend. (N.
Y.) 570 314
People V. Sharp, 133 Mich. 378 51
People V. Skidmore, 17 Cal. 260 416
People V. Smith, 123 Cal. 70-. 301
311, 337
People V. Smith, 43 111. App. 217 435
People V. Smith, 2 Hilt. (N. Y.)
523 434
People V.
Y.) 431
People V.
People V.
Stager, 10 "Wend. (N.
424,
Toomey, 122 111. 308-
70, 282,
Tubbs, 37 N. Y. 586-.
People V. Vilas, 36 N. Y. 459-
426
66
311
428
438
280
313
People V. White, 11 111. 341 172
People V. White, 28 Hun (N. Y.)
289 280
People V. Wissig, 7 Daly (N. Y.)
23 434
People V. Wittermore, 253 111.
378 134
People's Bank v. Bank, 101 U. S.
181 29, 31
People's Bank v. Legrand, 103
Pa. St. 309 99
People's Bank v. Stewart, 152
Mo. App. 314 ...348, 349, 353, 361
372
Peoples' Build. Asso. v. Worth,
43 N. J. L. 70 71
Peoples' Ins. Co. v. McDownell,
41 Ohio St. 650 103
Peoples' Lumber Co. v. Gillard,
136 Cal. 55 112
Peoria Rubber Mfg. Co. v. Deer-
ing, 85 Mo. App. 131 362
Peoria Savings, Loan & Trust
Co. V. Elder, 165 111. 55. 99, 356
Sec.
Peoria Second Nat. Bank v.
Diefendorf, 90 111. 396 340
Pepper v. Donnelly, 87 Ky. 259 247
Pequawket Bridge v. Mathes, 8
N. H. 139 301
Perkins v. Barstow, 6 R. I. 505 90
347
Perkins v. Cheney, 114 Mich. 567 89
90, 270
Perkins v. Gilman, 8 Pick.
(Mass.) 229 121
Perkins v. Littlefield, 5 Allen
370 386
Perkins v. Rudolph, 36 111. 306 241
Perkins v. Stimmel, 114 N. Y.
359 364
Perry v. Horn, 22 W. Va. 381.. 318
Persons v. Oldfield (Miss. 1912),
57 So. 417 26
Petefish V. Watkins, 124 111. 384 94
Peters v. Bayhill, 1 Hill (S. C.)
237 180, 195
Peters v. Mackay, 20 Wash. 172 138
Peters v. McWilliams, 6 Ohio St.
155 163
Peterson v. Russell, 62 Minn.
220 347, 348
Pettit V. Allen, 64 App. Div. (N.
Y.) 579 238
Petty V. Cooke, L. R. 6 Q. B. 789 96
Petty V. Douglass, 76 Mo. 70 ■ . 114
Pfenninger v. Kokesch, 68 Me.
81 90
Pfirshing v. Peterson, 98 111.
App. 70 67, 128, 152
Phares v. Barbour, 49 111. 379.. 132
Phelps V. Church, 65 Mich. 231 357
Phelps V. Sargent, 69 Minn. 168 357
Phelps V. Stone, 172 Mass. 355. . 383
Phelps V. Vischer, 50 N. Y. 74. . 347
Philadelphia, etc., R. R. Co. v.
Little, 41 N. J. Eq. 519... 149, 193
Phillips V. Barzeal, 14 Ala. 146 248
Phillips V. Foxall, L. R. 7 Q. B.
666 88, 127, 143, 292
Phillips V. Preston, 5 How. (U.
S.) 277 210
Table of Cases.
529
Sec.
Phillips V. Riley, 27 Mo. 386 ... 146
Phillips V. Schall, 21 Mo. App.
38 51
Phillips V. Solomon, 42 Ga. 192 94
Phillips vi State (Ark. 1911),
140 S. W. 734 431
Phillips V. Thompson, 2 Johns.
Ch. (N. Y.) 418 151
Philpot V. Briant, 4 Bing. 717- • 170
Phipsbury v. Dickinson, 78 Me.
457 303
Phoenix Ins. Co. v. Tindley, 59
Iowa 591 60
Phoenix Iron Works v. Rhea, 98
Tenn. 461 144
Phoenix Manuacturing Co. v.
Bogardus, 231 111. 528 66, 67
Pick V. Ellinger, 66 111. App. 570 28
Pickering v. Day, 3 Houst.
(Del.) 533 143
Pickersgill v. Lahens, 15 Wall.
(U. S.) 140 226
Pickett V. Andrews, 135 Ga. 299 144
Pickett V. Bates, 3 La. Ann. 627 176
Pico V. Webster, 14 Cal. 202 321
Picot V. Signiago, 22 Mo. 587- • . 58
Pidock V. Bishop, 3 Barn. & Cr.
605 • ...126, 141
Pierce v. Atwood, 64 Neb. 92 . . 128
152
Piercy v. People, 10 111. App. 219 428
Piercy v. Piercy, 1 Ired. Eq.
(N. C.) 214 226
Pigot's Case, 11 Coke 27 102
Pike V. Warren, 15 Me. 390 90
Pile V. McCoy, 99 Tenn. 367 194
Pima County v. Snyder, 5 Ariz.
45 54
Pine County v. Willard, 39 Minn.
125 69, 292, 303, 307
Pinkstaff v. State, 59 111. 148. .9, 247
260
Pinnell v. Hinkle, 54 W. Va. 119 264
Pinson v. Kirsh, 46 Tex. 29. . • . 222
Pintard v. Davis, 21 N. J. L. 632 146
Piper V. Newcomer, 25 Iowa 221 171
34
Sec.
Piper's Estate, 15 Pa. St. 533-. 251
Pitkins V. Boyd, 4 G. Greene 255 2
Pitt V. Prussard, 8 Mees. & W.
538 177, 194a
Pittsburg, etc., R. R. Co. v.
Shaeffer, 59 Pa. St. 350-. 143, 288
292, 293, 363
Pittsburg, etc., R. Co. v. Shop-
per, 59 Pa. St. 350 290
Pizzi V. Mardello, 23 Pa. Super.
Ct. 535 381, 391
Place V. Mcllvane, 38 N. Y. 96- . 122
Place V. Taylor, 22 Ohio St. 317 334
Plant V. Storey, 136 Ind. 46 151
Planters' Bank v. Major, 25 Ky.
Law Rep. 702 19
Platter v. Green, 26 Kan. 252.. 348
Pleasant's Appeal, 75 Pa. St.383 87
Plummer v. People, 16 111. 358 32
136
Plunkett V. Machine Co., 84 Md.
529 362
Plymouth v. Painter, 17 Conn.
585 304
Poe V. Dixon, 60 Ohio St. 124 • . 11
12, 192
Pogue V. Joyner, 7 Ark. 462 214
Point Pleasant, Town of v.
Greenlee, 63 W. Va. 207... 59. 59a
Polacbeck v. Moore, 114 Wis.
256, 261 48a
Polak V. Everett, 1 Q. B. D. 669 113
130
Police Jury of Parish of Vernon
V. Johnson, 111 La. 279 112a
Polkinghorne v. Hendricks, 61
Miss. 366 115
Pollard V. Stanton, 5 Ala. 451.. 171
Pollock V. Cox, 108 Ga. 430 257
Pond V. United States, 111 Fed.
989 301, 314
Poole V. Doster, 59 Miss. 258- • . 151
Poole V. Dyer, 123 Mass. 363... 214
Poole V. Lowe, 24 Colo. 475 151
Pooley V. Whitmore, 10 Heisk.
629 26
530
Table or Cases.
Sec
Popper V. Senfort, 147 App. Div.
(N. Y.) 371 239
Popper V. State, 22 Ind. 399- •• ■ 51
Portage County Bank v. Lane, 8
Ohio St. 495 106
Porter v. First Nat. Bank, 54
Ohio St. 155 146
Porter v Hodenpuyl, 9 Mich. 11 118
Porter v. Horton, 80 111. App.
333 200
Post V. Jackson, 17 Johns. (N.
Y.) 239 182
Post V. Losey, 111 Ind. 74.-35, 107
113
Post V. Shafer, 63 Mich. 85 226
Postmaster General v. Munger,
2 Paine 189 308
Pott V. Nathans, 1 Watts & S.
(Pa.) 155 73, 95, 168, 207
Potter V. Brown, 35 Mich. 274. . 383
Potter V. Gronbeck, 117 111. 404 82
369
Potter V. Ogden, 136 N. Y. 384 2'^5
257, 258
Potter V. State, 23 Ind. 550.-53, 309
Potter V. Titcomb, 7 Me. 302 -. 251
252
Potter V. Van Vranken, 36 N. Y.
629 228
Powell V. Baer, 143 Ky. 282 24
Powell V. Edwards, 2 Bos. & P.
267 200
Powell V. Kettells, 1 Gil. (111.)
49 86
Powell V. Powell, 48 Cal. 234. .9, 203
Powell V. Smith, 8 Johns. (N.
Y.) 250 178, 184
Powell V. State, 15 Ohio 579 431
Powers V. Bumcratz, 12 Ohio St.
273 353, 355, 388
Powers V. Clarke, 127 N. Y. 417 365
Powers V. Nash, 37 Me. 322 194a
Powers V. Rankin, 144 111. 52.. 377
392, 393
Powers Dry-Goods Co. v. Har-
lin. 68 Minn. 193 51
Sec.
Pownal V. Farraud, 6 Barn. &
Cr. 439 176
Pratt V. Conway, 148 Mo. 291 ■ . 11
Pratt V. Fishwild, 121 Iowa 642 397
Pratt V. Hedden, 121 Mass. 113,
116 41, 42
Pratt V. Humphrey, 22 Conn. 317 374
387
Pratt V. Northam, 5 Mason 95 . . 255
Pratt V. Trustees, 93 111. 475. • . 87
Pray v. Main, 7 Cush. 253 163
Preble v. Baldwin, 6 Cush.
(Mass.) 549 374
Presbey v. Thomas, 1 App. D. C.
171 26
Prescott V. Newell, 39 Vt. 82. . . 187
Prescott V. Perkins, 16 N. H. 305 203
Prescott V. Pitts, 9 Mass. 376 ■■ . 255
Prescott Nat. Bank v. Head, 11
Ariz. 213 112c, 174
President & Fellows of Harvard
College V. Kempner, 131 App.
Div. (N Y.) 848 24, 92, 111
Presley v. Weakley, 135 Ala. 517 263
Preston v. Campbell, 3 Hays-
wood (Tenn.) 20 196
Preston v. Dozier (Ga. 1910), 68
S. E. 793 4
Preston v. Garrard, 120 Ga. 689 20
Preston v. Gould, 64 Iowa 44.. 211
Preston v. Huntington, 67 Mich.
113, 139 101, 111
Preston v. Northwestern Cereal
Co., 67 Neb. 45 30
Preston v. Preston, 4 Gratt.
(Va.) 88 197, 207
Price V. Bank, 114 111. 317 18
Price V. Barker, 4 El. & B. 760 116
Price V. Edwards, 10 B. & C.
578 170
Price V. Oatman (Tex. Civ.
App.), 11 S. W. 258 350
Price v. Price, 16 Mees. & W.
232 122
Price V. State, 42 Ark. 178 431
Prickett v. People, 88 111. 115.. 313
Primrose v. Bromley, 1 Ark. 99 201
Table of Cases.
531
ISec.
Prince V. Clark, 127 Mass. 599 217
Pritchett V. People, 1 Gill (111.)
525 213
Pritchett V. Wilson, 39 Pa. St.
421 339
Probate Court v. Hazard, 13 R.
I. 3 244
Probate Court v. Merriam, 8
Vt. 234 251, 252
Probate Court v. Williams, 30 R.
I. 144 244
Provenchee v. Piper, 68 N. H. 31 387
Providence v. McCacron, 35 N.
J. L 328 316
Providence Mach. Co. v. Brown-
ing, 68 S. C. 89 342
Pryan v. United States, 1 Black
(U. S.) 140 70
Puckett V. Bates, 4 Ala. 390 381
Pugh V. Conover, 11 W. Va. 523 93
185
Pulaski Stair Co. v. Miller's
Creek Lumber Co. (Ky. 1910),
128 S. W. 96 340
Pundmann v. Schoenlich, 144
Mo. 149 301, 311
Purcell V. Steele, 12 111. 93.... 213
Purdy V. Peters, 35 Barb. (N.
Y.) 239 351, 365
Purkstall v. State, 59 111. 148.. 203
Pursiful V. Pineville Banking
Co., 97 Ky. 154 85
Pursley v. Hayes, 22 Iowa 11 ■ • 268
Putney v. Farnham, 27 Wis. 187 384
Pybus V. Gibb, 6 El. & B. 902. . 66
72, 313
Putney v. Schmidt, 16 N M.
400, 120 Pac. 720 66, 141
Pynes v. State, 45 Ala. 52 428
Q.
Quimby v. Putnam, 28 Me. 419 371
Quinn v. Moss, 45 Neb. 614 362
R.
Rabka v. People, 73 111. App. 246 325
Radcliff V. Poundstone, 23 W.
Va. 724 398
Sec.
Rader v. Yeargin, 85 Tenn. 486 251
Ragland v. Justices, 10 Ga. 65. . 263
Railroad Co. v. Howard, 7 Wall.
(U. S.) 392 28
Railroad Co. v. Quigley, 21 How.
(U. S.) 202 28
Railton v. Mathews, 10 CI. & F.
934 126, 140
Rainey v. Yarborough' 37 N. C.
249 197
Rainier v. Smith, 65 Misc. R. (N.
Y.) 560 Ill
Ralston v. Wood, 15 111. 171 195
Ramsay's Estate v. People, 197
111. 572 67. 301
Ramsay's Estate v. People, 97
111. App. 203 67
Ramsay's Estate v. Whitbeck,
183 111. 550 29, 301, 318
Ramsey v. Commonwealth, 83
Ky. 534, 538 402
Ramsey v. Coolbaugh, 13 Iowa
164 402
Ramsey v. Lewis, 30 Barb. (N.
Y.) 203 208
Rand v. Barrett, 66 Iowa 731-. 169
Randolph v. Flemming, 59 Ga.
776 113
Raney v. The Governor, 4
Blackf. (Ind.) 2 282
Ranger v. Carey, 1 Met. (Mass.)
309 347
Ranger v. Sargent, 36 Tex. 26-. 356
Rankin v. Wilson, 17 Iowa 463. . 151
Rannsey-Alton MercantHe Co. v.
Mineral Belt Construction
Co., 2 Ind. Terr. 134 441
Rapp v. Ins. Co., 113 111. 390.. 85
345
Rapp V. Linebarger (Iowa), 128
N. W. 555 356
Rathbone v. Frost, 9 Wash. 162 365
Rathborne v. Warren, 10 Johns.
(N. Y.) 567 411, 414
Rawlings v. Gunstern, 6 Term
R. 284 412
Rawlings v. State, 38 Neb. 590- • 434
435
532
Table of Cases.
Sec.
Rawson v. Beekman, 25 N. Y.
552 146
Rawson v. Piper, 36 Me. 98.... 258
Rawson v. Taylor, 30 Ohio St.
389 21
Ray V. Brenner, 12 Kan. 105. . . . 172
Read v. Case, 4 Conn. 166 4^4
Read v. Cutts, 7 Greenl. 186 2
Read v. Nash, 1 Wils. 305 383
Reader v. Kingham, 13 C. B., N.
S. 344 382
Receivers of New Jersey Mid-
land Ry Co. V. Wortendyle, 27
N. J. Eq. 658. 152, 157
Redfield v. Frear, 9 Abb. Pr. N.
S. (N. Y.) 444 404
Redfield v. Haight, 27 Conn. 31. 183
Redmon v. Mauel, 73 Ind. 593.. 86
Red River National Bank v.
Bray (Tex. Civ. App. 1911),
132 S. W. 968. . . 125
Red Wing Sewer Pipe Co. v.
Donnelly, 102 Minn. 192. .... 59
Redwood Co. v. Tower, 26 Minn.
45. . . . 310
Reed v. Commonwealth, 11
Serg. & R. (Pa.) 441 244
Reed v. Fish, 59 Me. 359 354
Reed v. Flipper, 47 Ga. 273 114
Reed v. Garvin, 12 S. & R. (Pa.)
100 128, 357
Reed v. Hedges, 16 W. Va. 194. 304
Reed v. Hume, 75 Utah 248 258
Reed v. Lane, 61 Vt. 481. 24
Reed v. Nash, 1 Wilson 305. ... . 401
Reed v. Norris, 2 Myl. & Cr. 362. 186
Reed v. Police Court, 172 Mass.
427. . . . 425
Rees v. Berrington, 2 Ves. 540. . 113
Reese v. United States, 9 Wall.
(U. S.) 13.. 55, 102, 413, 414, 427
430, 431
Reeves & Co. v. Jouell (Tex.
Civ. App. 1911), 140 S. W. 364 2a
87, 93a
Reeves v. Pullian, 7 Baxt. 119. . 173
Sec.
Regan v. Williams, 185 Mo. 620. 11
Reherd v. Long, 77 Va. 839 244
Reifsnider v. Lee, 44 Iowa 101- . 323
Reigart v. White, 52 Pa. St. 438 2
4, 45, 348, 376
Reinhard v. Columbus, 49 Ohio
St. 257. . . . 437
Reinhart v. Johnson, 62 Iowa
155 208
Reints v. Uhlenhopp (Iowa
1910), 128 N. W. 400 94, 122
Remsen v. Graves, 41 N. Y. 471. 123
Remsen v. Storm, 157 N. Y. 705. 385
Renfroe v. Colquitt, 74 Ga. 618. 318
Republic Mfg. Co. v. Fuchs, 151
111. App. 260 . . 341
Reissans v. White, 128 Mo. App.
135. . ..2a, 66, 101, 112a, 112b, 112c
Ressiter v. Waterman, 151 III.
169 382, 383, 386, 396
Revell V. Thrash, 132 N. C. 803. 113
113b, 119
Revel Realty & Securities Co.
V. Maxwell, 65 Misc. R. (N. Y.)
54 93a, 100, 111
Revel Realty & Securities Co.
V. INIaxwell, 115 N. Y. Supp.
1033. . . . Ill
Rex V. Finmore, 8 T. R. 409... 434
Rex V. Spencer, 1 Wils. 315 434
Rey V. Simpson, 22 How. (U.
S.) 341. . . 347
Reynolds v. Barnard, 36 111.
App. 218. . . 375
Reynolds v. Harral, 2 Strob. (S.
C), 87 415, 416
Reynolds v. Reynolds, 11 Ala.
1023 256
Reynolds v. Ward, 5 Wend. (N.
Y.) 501. ... 49
Rhode V McLean, 101 111. 467,. 129
Rice V. Loomis, 130 Mass. 302.. 82
Rice V. Rice, 14 B. Mon. (Ky.)
335 188, 194a
Rice V. Sanders, 152 Mass. 108 . • 11
Table of Cases.
533
Sec.
Rice V. Southgate, 16 Gray
(Mass.) 142. .. 152, 174, 301
Rice V. Watson, 129 Mich. 520- - 262
Rich V. Starbuclf, 51 Ind. 87 56
Rich V. Warren, 135 Ga. 394 145
Richards v. Heller (Iowa, 1911),
133 N. W. 393 220
Richards v. Market Exch. Nat.
81 Ohio St. 348.. 48a, 93a, 100, 113
Richards v. Morse, 36 Me. 240. . 407
Richards v. Storer, 114 Mass.
101 218
Richardson v. Allen, 74 Ga. 719. 339
Richardson v. Chemical Labora-
tory, 9 Met. (Mass.) 42 158
Richardson v. Draper, 87 N. Y.
337 86
Richardson v. Peoples' National
Bank, 57 Ohio St. 299 65, 237
238
Richmond v. Kasey, 30 Gratt.
218 127
Richmond v. Moore, 107 111.
429 49, 351
Richmond Co. v. Wandel, 6
Lans. (N. Y.) 33. 318
Richmond, Etc. R. R. Co. v.
Kasey, 30 Gratt. (Va.) 21 143
Richner v. Krenter, 100 111. App.
548. . . . 341
Richter v. Frank, 41 Fed. 859- 370
Rickens v. Miller, 83 N. C. 543. . 209
Ricketson v. Giles, 91 111. 154.. 177
Riddel v. School Dist, 15 Kan.
168 70, 305
Riddle v. Baker, 13 Cal. 295 .. . 65
Riddle v. Thompson, 104 Pa. St.
330. . . 4, 348
Riggen v. Commonwealth, 3
Bush (Ky.) 493 434
Rindskopf v. Dornan, 28 Ohio
St. 516. . . 118
Ringeman v. State, 136 Ala. 131 423
Ringgold V. Newkirk, 3 Ark. 96. 2
Rinhard v. Calemby, 49 Ohio St.
257. . . . 402
Sec.
Rintoul V. White, 108 N. Y. 222. 392
Ripley Building Co. v. Coors,
37 Colo. 78 112
Rison V. Young, 7 Martin N. S.
(La.) 298. . . 253
Ptittenhouse v. Ammerman, 64
Mo. 197 246
Rittenhouse v. Kemp, 37 Ind.
258 122
Rittenhouse v. Leversing, 6
Watts & S. (Pa.) 190. 165
Ritter v. Singmaster, 73 Pa. St.
400 125
Rizer v. Callen, 27 Kan. 339... 180
187
Roach V. Summers, 20 Wall. (U.
S.) 165. . . 101
Roach V. Thompson, M. & M.
487. . . 183
Robbins v. Apgar, 10 Mo. 538-. 397
Robbins v. Bingham, 4 Johns.
(N. Y.) 476. . . . 357
Robbins v. Burridge, 128 Mich.
25. . . 253
Robenson v. Maxcey, 6 Dana
(Ky.) 104 195
Robeson v. Roberts, 20 Ind. 155. 131
Robeson v. Thompson, 9 N. J. L.
97. . . . 405
Roberson v. Blevin.s, 57 Kan.
50. . . . 52
Robert-Gair Co. v. Columbia
Rice Packing Co. (La. 1909),
50 So. 8. . . 28
Roberts v. Gordon, 86 Ga. 386.. 431
Roberts v. Hawkins, 70 Mich.
566. . . . 2, 349
Roberts v. Laramie County,
8 Wyo. 177, 56 Pac. 915 317
Roberts v. Riddle, 79 Pa. St.
648 348
Roberts v. Sully, 2 App. Div. (N.
Y.) 152 362
Roberts v. Trust Co., 83 111.
App. 463 2a,
534
Table of Cases.
8ec.
Robertson v. Deatharge, 82 111.
511 10, 165, 199
Robertson v. Trigg, 32 Gratt.
(Va.) 76 196, 338
Robinson v. Boyd, 60 Ohio St.
57 3, 7, 194, 203
Robinson v. Gould, 11 Gush.
(Mass.) 55, 57. . . 32, 136
Robinson v. Hodges, 117 Mass.
222. . . . 243
Robinson v. Hyer, 35 Fla. 344-. 341
Robinson v. McDowell, 130 N. C.
246 201, 210
Robinson v. Millard, 133 Mass.
236 244
Hobinson v. Offritt, 7 T. B. Mon.
(Ky.) 540. . . ■ ■ • • 122 '
Robinson v. Plimpton, 25 N. Y.
484 224, 225
Robinson v. Reid, 46 Iowa 219- • 109
Robinson v. Wells, 38 Wis. 330.363
Rocco V. Cicalla, 12 Heisk.
(Tenn.) 508. . . . ........... 250
Rocherean v. Jones, 29 La.
Ann. 82. . . 336
Rochester v. Randall, 105 Mass.
295. . . 69, 273, 301
Rochester City Bank v. Elwood,
21 N. Y. 88. . 80, 285
Rock V. Stringer, 36 Ind. 346-. 316
Rockford Ins. Co. v. Rogers, 15
Colo. App. 23. . . 69
Rockford Sendon Nat. Bank v.
Gaylord, 34 Iowa 246 349
Rock Island v. Mercer County,
24 111. 35. . . 437
Rockville National Bank v.
Holt, 58 Conn. 526. . ....116, 117
Rodgers Shoe Co. v. Coon, 157 '
Mich. 547. . . 66, 100
Hoe V. Riser, 62 Ark. 92 185
Roeder v. Neidermeier, 112
Mich. 608. . . •••. 208
Hogers v. Gennett Lumber Co.,
154 N. C. 108 392
Rogers v. Goswell, 51 Mo. 466. . 358
Hko.
Rogers v. Harvey, 143 Kj. 88.. 357
Rogers v. Hazel (Ky. C. A.
1912), 144 S. W. 49 171, 174
Rogers v. Jewell Belting Co.,
184 111. 574. ... 30
Rogers v. Kneeland, 13 Wend.
(N. Y.) 114. . . 388
Rogers v. State, 99 Ind. 218... 69
Rogers v. Trustees, 46 111.
428 130, 152, 170
Rollstone Nat. Bank v. Carle-
ton, 136 Mass. 226. . . 285, 286
Rolston V. Click, 1 Stew. 526.. 26
Romine v. Howard (Tex. Civ.
App. 1906), 93 S. W. 690 441
Romine v. Romine, 59 Ind. 346. 180
Roper V. Sangamon Lodge, 91
111. 518 51, 70, 126, 140, 141
288, 289
Rorer v. Ferguson, 96 Va. 411.- 152
Rosenbaum v. Goodman, 78 Va.
121. . . . 3, 203, 204
Rosenberg v. Klopfer, 117 N.
Y. Supp. 102. 361
Rosenthal v. Perkins, 123 Cal.
240 131, 216
Ross v. Allen, 67 111. 317... 176 187
Ross v. Espy, 66 Pa. St. 481 210
Ross V. Hatch, 5 Iowa 149 316
Ross v. Jones, 22 Wall. (U. S.)
576. . . . 16, 146
Ross v. Menefee, 125 Ind. 432. . . 175
Ross v. Wallenberg, 31 Greg.
269. . . 382
Ross V. Williams, 11 Heisk.
(Tenn.) 410 276
Rothermal v. Hughes, 134 Pa.
St. 510. . . 126
Rothlinger v. Wonderly, 66 111.
390 224
Rottman v. Fix. 25 Mo. App. 571 399
Rouse V Banking Co. (1894),
App. Cas. 586. . . 21
Rouse V. Mohr, 29 111. App. 321 . 38
Rouss V. Cregler, 103 Iowa 60. • 356
Rouss V. King, 74 S. C. 251. .100, 151
Table of Cases.
535
Sec.
Roussel V. Matthews, 171 N. Y.
634 391
Roussel V. Matthews, 62 App.
Div. (N. Y.) 1 381, 391
Routan v. Lacey, 17 Mo. 399 145
Routt V. Dils, 40 Colo. 50 144a
Rowe V. Bowman, 183 Mass.
488 129
Rowe V. Buchtel, 13 Ind. 38 146
Rowe V. State, 2 Bay. (S. C.)
565 418
Rowell Mfg. Co. V. Isaacs (Mo.
App. 1910), 128 S. W. 760.... 348
Rowland v. Stevenson, 6 N. J. L.
149 408
Royal Ins. Co. v. Davis, 40 Iowa
469. . . . 345
Royse v. Winchester Bank (Ky.
C. A. 1912), 146 S. W. 738. .. . 99
Rubish V. State, 112 Ind. 107... 423
Rucker v. Robinson, 38 Mo. 154. 114
116
Rudolf V. Hewitt, 11 S. D. 646.. 361
247
Rudolf V. Malone, 104 Wis. 470. 203
Rudy V. Rudy, 145 Ky. 245 259
Rugglely V. Covey, 3 Conn. 419. 412
Rule v. Anderson, 160 Mo. App.
347 112a, 442, 443, 448
Rumberger v. Golden, 90 Pa.
St. 34 44, 48
Rumley Co. v. Wilcher, 23 Ky.
Law Rep. 1745. ... 42, 110
Runde v. Runde, 59 111. 98 384
Rush V. State, 19 Ind. App. 523. 262
Rusher v. State, 94 Ga. 363 323
Russell V. Annabel, 109 Mass.
72. . . . 54
Russell V. Buck, 14 Vt. 147.... 370
Russell V. Clark, 7 Cranch (U.
S.) 69 151, 347
Russell V. Failor, 1 Ohio St. 327 190
Russell V. Fenner, 21 Ohio Cir.
Ct. R. 527 374
Russell V. Freer, 56 N. Y. 67.50, 51
Sec.
Russell V. Mosley, 3 Brod. & B.
211 39
Russell V. State, 45 Ga. 9 434
Russell V. Wiggin, 2 Story 213. 356
Ruston V. Dierks Lumber Co.
(Neb. 1902), 89 N. W. 616.... 363
Rutter V. Hall, 31 App. 647. .... 257
Ryan v. Krusen, 76 Mo. App.
496 195
Ryan v. Morton, 65 Tex. 258.66, 103
Ryan V. People, 165 111. 143.. 138 265
Ryan v. Pistone, 89 Hun (N.
Y.) 78. . . 385
Ryan v. Trustees, 14 111. 20.. 18, 67
Ryan v. Williams, 29 Kan. 487. . 66
Ryers v. Alcorn, 6 111. App. 39. 212
Ryler v. Clark, 3 B. Mon. (Ky.)
262 115
S.
Sacramento v. Dunbar, 14 Cal.
421 54
Sage v. Hammonds, 27 Gratt
(Va.) 651 264
Sage v. Strong, 40 Wis. 575 100
226, 227
Sarles v. Court, 7 R. I. 270 253
Saint V. Wheeler & Wilson Mfg.
Co., 95 Ala. 362. . 127
Salem v. Clintock, 16 Ind. App.
656 67
Saline County v. Brice, 65 Mo.
63 ISO
Salt Lake City v. Hollister, 118
W. S. 256, 263 30
Salt Springs Nat. Bank v. Pratt.
135 N. Y. 423 .359, 360
Salyers v. Ross, 15 Ind. 130 204
Sample v. Hale, 34 Neb. 221. ... 112
Sampson Co. v. Commonwealth,
208 Mass. 372 112
Sampson Co. v. Commonwealth,
202 Mass. 326 .112c
San Antonio Brewing Assn. v.
Abbott Oil Co. (Tex. Civ, App.
1910), 129 S. W. 373 446
536
Table of Cases.
Sec.
Sanchez v. Foster, 133 Cal.
614 253, 256
Sanders v. Gillespie, 59 N. H.
250 383
Sanders v. Herndon, 29 Ky. Law
Rep. 322. . . . 194
Sanders v. Keller, 18 Idaho 590 48a
Sanders v. Wellburg, 107 Ind.
266. . . 201, 208
Sanderson v. Oston L. R. 8 Ex.
73. . . . 88, 143, 292
San Diego First Nat. Bank v.
Babcock, 94 Cal. 102. . . .... 339
Sandoval v. United States Fi-
delity & Guaranty Co., 12
Ariz. 348. . . 438
Sandwich v. Fish, 2 Gray
(Mass.) 298. . . .•■•.. 337
Sanford v. Allen, 1 Cush.
(Mass.) 473. . . 359
Sanford v. Bulkley, 30 Conn.
344. . 158
Sanford v. Gilman, 44 Conn. 461 253
San Francisco v. Mulcrevy, 15
Cal. App. 11 313, 329
Sanger v. Hibbard, 104 Fed. 455 24
Sangster v. Commonwealth, 17
Graft (Va.) 124. . . 324
San Luis Obispo County v. Mur-
phy (Cal. S. C. 1912), 123 Pac.
808. ... .......34, 428
San Roman v. Watson, 54 Tex.
254 54
Sapiro v. Sisley, 125 N. Y. Supp.
467. . . . ■•■■• 130
Sapp V. Aiken, 68 Iowa 699 ... 180
Sargent v. Johns, 206 Pa. St.
386 377, 381
Sather Banking Co. v. Arthur R.
Briggs Co., 138 Cal. 724. .2, 67
122 134
Savage v. Carleton, 33 Ala. 443. 146
Savage v. Fox, 60 N. H. 17.-35, 39
Savage v. First National Bank,
112 Ala. 508. . 36, 41, 42
Sec.
Savings Bank v. Hunt, 72 Mo.
597. . . 70, 305
Sawyer v. Campbell, 107 Iowa
397 51, 55, 113
Sawyer v. Chambers, 43 Barb.
(N. Y.) 622 CC6
Sawyer v. Ferworld, 59 Me. 550 36
Sayers v. Cassell, 23 Graft (Va.)
523. . . . 260
Sayles v. Sims, 73 N. Y. 551 165
Sayles, In re, 84 App. Dlv. (N.
Y.) 210. . . . 434, 436
Sayward v. Conant, 11 Mass.
146 411
Scarratt v. Cook Brewing' Co.,
117 Ga. 181. . . 144a
Schaeffer v. Strieder, 203 Mass.
467 374, 396
Scheid v. Liebshultz, 51 Ind. 38 298
Scheizer v. Minhead, 84 N. Y.
Supp. 159.. . . 381
Schley v. Merrett, 37 Md. 352.. 347
Schmitzel's Appeal, 49 Pa. St. 23 207
Schneider v. Commonwealth, 3
Met. (Ky.) 409. ... 425
Schock V. Miller, 10 Pa. St. 401. 133
Schoenlwald v. Dieden, 8 111.
App. 389 167
Scofield V. Churchill, 72 N. Y.
565 9, 203, 247, 276
Scholle V. Metropolitan El. R.
Co., 62 App. Div. (N. Y.) 617.. 143
School Directors v. Brown, 33
La. Ann. 383. . 33
School District No. 80 v. Lap-
ping, 100 Minn. 139 54
School Dist. of Kansas City ex
rel. Koken Iron Works v.
Libers, 147 Mo. 580. . . 112
Schoolfield v Rudd, 9 B. Mon
291. .. . 163
Schoonover v. Allen, 40 Ark.
132 164
Schoonover v. Osborne, 108
Iowa 453, 79 N. W. 263 . . .361, 374
Schott V. Youree, 142 111. 233-. 238
Table of Cases.
53T
Schram v. Werner, 85 Hun (N.
Y.) 293. ... 7
Schuerer & Sons v. Stone, 100
N. Y. 560 -^n
Schuerer & Sons v. Stone, ■ •
App. Div. (N. Y.) 796 377
Schumark v. Art Metal Nov. Co.,
84 Conn. 331 215
Schuster v. Weiss, 114 Mo. 158 72
Schuyver v. Hawkes, 22 Ohio
St. 308 56
Schwartz v. Smith, 143 App.
Div. (N. Y.) 297. . . 113, 114
Schwarzschild & Sulzberger Co.
V. Cryan, 167 Mich. 377 412
Scott V. Bryan, 96 N. C. 289- .. . 196
Scott V. Hall, 6 B. Mon. (Ky.)
285 115
Scott V. Hunt, 92 Tex. 389 329
Scott V. Macy, 3 Ala. 250 217
Scott V. Ryan, 115 Ala. 587. .325, 326
Scott V. Scruggs, 60 Fed. 721... 171
Scott V. State, 46 Ind. 203 311
Scott V. State, 1 Head. (Tenn.)
433 419
Scott V. Timberlake, 83 N. C. 382 144
Scott V. Whipples, 5 Me. 336- -. 54
Scott Co. V. Ring, 29 Minn. 398. . 70
305, 313
Scotten V. Fegan, 62 Iowa 236- . 336
Screwmen's Benev. Assoc, v.
Smith, 70 Tex. 168. 292
Screws v. Watson, 48 Ala. 628. . 231
Scribner v. Adams, 73 Me. 541. . 208
Scribner v. Rutherford, 65 Iowa
551 348
Scully V. Kirkpatrick, 79 Pa. St
324 428
Seabrook, Town of v. Brown, 71
N. H. 618. . . 337
Seans v. Van Dusen, 25 Mich.
351 .224
Searles v. City of Flora, 225 111.
167 67a
Sears v. Swift, 66 111. App. 496. 348
iSEC
Seaton v. McReynolds (Tex.
Civ. App. 1903), 72 S. W. 874. 51
Seattle, City of v. Griffith Realty
& Banking Co., 28 Wash. 605. 51
Seavers v. Phelps, 11 Pick.
(Mass.) 304. . . . 25
Sebastian v. Bryan, 21 Ark. 447. 260
Sebold V. Citizens' Deposit
Bank, 31 Ky. Law Rep. 1244- . 141
Security Ins. Co. v. Ins. Co., 50
Conn. 233. . . 196, 197
Sedberry v. Conner, 77 N. C. 319 411
Seeberger v. Wyman, 108 Iowa
527 26
Seeley v. Brown, 14 Pick.
(Mass.) 177 411
Seely v. People, 27 111. 173. ... . 315
Seeman v. Inman, 6 Mo. App.
384 394
Segan v. Mazzer, 116 La. 1026.. 112c
Seitzler v. Mishler, 37 Pa. St.
82 22
Selby V. City of New Orleans, 19
La. 900. . . . 54
Sellers v. Territory (Okla.
1911), 121 Pac. 228 126
Selser v. Brock, 3 Ohio St. 302. 57
78, 315
Semmes v. Naylor, 12 Gill. &
J. (Md.) 358. . . 168
Semple v. Pink, 1 Exch. 74.... 341
Sentinel Co. v. Smith, 143 Wis.
377 353, 354, 356, 363
Sepp V. McCann, 47 Minn. 364- . 112
Sergent v. Salmond, 27 Me.
539. . . . 160
Sesnon v Lindeberg, 66 Wash.
1 30
Sevier v. Roddie, 51 Mo. 580... 187
Seward v. Jackson, 8 Cow. (N.
Y.) 406. . 160
Sext V. Geise, 80 Ga. 698. ...391, 393
Sexton V. Sexton, 35 Ind. 88. . . . 211
Seymour v. Mickey, 15 Ohio St.
515 347
538
Table of Cases.
isec
Shaaler v. Bushong, 105 Pa. St.
514. . . . 379
Shadburne v. Daly, 76 Cal. 355. 371
Shane v. Francis, 30 Ind. 92... 6
Sharp V. Bedell, 10 111. 88 225
Sharp V. Miller, 57 Cal. 415 224
Sharon v. Sharon, 84 Cal. 433.. 224
Shaw V. Church, 39 Pa. St. 226- • 122
Sheeby v. Mandeville, 6 Cranch
(U. S.) 253. . . 295
Sheffield v. Whitfield, 6 Ga.
App. 762 4, 348, 349
Sheid V. Leibshultz, 51 Ind. 38. 53
Shelton v. Cureton, 3 McCord
L. (S. C.) 412 257
Shepard v. Pebbles, 38 Wis.
373 65, 265
Shepard v. Shears, 35 Tex. 763. 359
Sheppard v. Daniel Miller Co.,
7 Ga. App. 760 348, 349
Sheppard v. Newton, 139 N. C.
533 386
Sheppherd v. May, 115 U. S.
505. ... 13, 20, 21
Sherman v. Mulloy (Mass.) 54
N. E. 340. . . . 354
Sherman v. Pedick, 35 App.
Div. (N. Y.) 15 360
Sherman v. State, 4 Kan. 570.. 27
Sherman's Admr. v. Shaver, 75
Va. 1. . . . 2
Shickle, etc.. Iron Co. v. Water
Works Co., 83 Iowa 396. 356
Shields v. Smith, 78 Ind. 425... 411
412
Shields v. Smith, 8 Bush (Ky.)
601 246
Shed V. Pierce, 17 Mass. 628. ... 120
Sherraden v. Parker, 24 Iowa
28 131
Sherrell v. Goodrum, 3 Humph.
(Tenn.) 419 328
Sherrod v. Rhodes, 5 Ala. 683.. 206
Sherrod v. Woodward, 4 Dev. L.
(N. C.) 368. . . 192
Sherwood v. Hill. 25 Mo. 391.. 256
SEa
Sherwood v. Stone, 14 N. Y. 267 394
Shinier v. Higlitshue, 7 Blackf,
(Ind.) 238 228
Shine v. Bank, 70 Mo. 524... 66, 356
Shipp V. Suggett, 9 B. Mon
(Ky.) 5, 8. . 110
Shoemaker v. Benedict, 11 N. Y.
176 90
Shollenberger's Appeal, 21 Pa.
St. 337. . . 264
Sliore V. Lawrence, 68 W. Va.
220, 69 S. E. 791 34g
Shore v. Wilson, 9 CI. & F. 352. 347
Shortredge v. Check, 1 A. & E.
57 ... 37
ShowUes V. Freeman, 81 Mo.
540 4 74
Shreffer v. Nadelhoffer, 133 111.
536 67
Shroyer v. Richmond, 16 Ohio
St. 455 59, 60, 266
Shuer v. Hummel (Neb. 1901),
95 N. W. 350 113
Shufeldt V. Smith, 139 Mo. 267. 387
Shufelt V. Moore, 93 Mich. 564 203
S|hupe v. Gallbreathe, 32 Pa.
St. 19 . . . 341
Shute V. Taylor, 61 N. J. L.
256 170, 171
Sigourney v. Drury, 14 Pick.
(Mass.) 387 371
Sigourney v. Waddle, 9 Paige
(N. Y.) 381 27
Sigourney v. Wetherell, 6 Mete.
(Mass.) 553 118
Silvers v. State, 59 N. J. L. 428. 431
Silvester, In re (1895), 1 Ch.
573 368
Silvey v. Dowell, 53 111. 260... 208
Simmons v. Guise, 46 Ga. 473.- 122
Simmons National Bank v. Dil-
ley Foundry Co., 93 Ark.
368 .28, 30
Simms v. Barefoots Exrs., 3 N.
C. 402 32
Table of Cases.
539
Sec.
Simonsin v. Grant, 36 Minn.
439. ... 100, 103, 138
Simpson v. Bovard, 74 Pa. St.
351 52
Simpson v. Carr, 25 Ky. Law-
Rep. 849 381, 392
Simpson v. Cook, 1 Bing. 452-. 84
Simpson v. Griffin, 9 Johns.
(N. Y.) 131. . . 183
Simpson v. Nance, 1 Spears (S.
C.) 4. . . . 382
Simpson v. Robert, 35 Ga. 180- . 415
416
Sims V. Lively, 14 B. Mon. (Ky.)
433. ... 246
Sinclair v. Redington, 56 N. H.
146. . . . 198
Singer Mfg. Co. v. Armstrong,
7 Kan. App. 314. . 72
Singer Mfg. Co. v. Bennett, 28
W. Va. 16 .61, 165
Singer Mfg. Co. v. Bozette, 74
Ark. 600 72
Singer Mfg. Co. v. Freerks, 12
S. D. 595 45, 49
Singer Mfg. Co v. Reynolds, 168
Mass. 588. ... 72
Sizer v. Ray, 87 N, Y. 220 20
Sjoli V. Hogenson (N. D. 1909),
122 N. W. 1008 243
Skillett V. Fletcher, L. R. 2 C. P.
469. 79
Skillin V. Merrill, 16 Mass.
20 194a
Skinner v. Hill, 32 Mo. App.
409 20, 21
Slagle V. Poro, 41 Ohio St. 603. 122
Slaughter v. Moore, 17 Tex. Civ.
App. 233 362, 372
Sloan V. Gibbes, 56 S. C. 480 16
Sloo V. Pool, 15 111. 47 196, 200
Slothoff V. Dunhan, 19 N. J. L
181. . . . 196
Smair v. Schmitter, 38 Mo. 478 122
Small V. Currie, 2 Drew 102... 32
Sec.
Small V. Currie, 5 De G. M. & G.
141 100
Small Co. V. Claxton, 1 Ga. App.
83 3a, 35, 67
Smalling v. King, 5 Lea (Tenn.)
585 329
Smart v. Cason, 50 111. 195 437
Smart v. Panther, 42 Tex. Civ.
App. 262 .196
Smart V. Smart, 97 N. Y. 559... 397
Smead v. Railroad Co., 11 Ind.
104. ... 31
Smith V. Berry, 3 Ohio 33. . 207
Smith V. Bowers, 2 Neb. (Unoff.)
611 238
Smith Bowman, 32 Utah 33 66
Smith V. Carr, 128 N. C. 150.- . . 3
Smith V. Clopton, 48 Miss. 66.. 170
Smith V. Commonwealth, 91 Ky.
588 ' 431
Smith V. Coon, 22 La. Ann. 445. 90
Smith V. Crocker, 5 Mass. 538. 56
Smith V. Crouse, 24 Barb. (N
Y.) 433 .'225
Smith V. Dana, 6 Hill (N. Y.)
543 348, 355
Smith V. Delaney, 64 Conn. 264. 382
Smith V. Dickinson, 6 Humph.
(Tenn.) 261 357
Smith V. Felton, 43 N. Y. 419. . . 144
Smith V. Finch, 2 Scam. (111.)
321 390
Smith V. Freyler, 4 Mont. 489 • • 146
Smith V. Harbin, 124 Ind. 434-. 193
Smith V. Huesman, 30 Ohio St.
662 225
Smith V. Hyde, 19 Vt. 54... 376
Smith V. Ide, 3 Vt. 290 349
Smith V. Jewett, 40 N. H. 513. . . 253
Smith V. Joslyn, 40 Ohio St. 409 140
Smith V. Kitchens, 5 Ga. 158... 424
Smith V. Lay wood, 5 Me. 504... 382
Smith V. Lockwood, 34 Wis. 77. 77
Smith V. Mason, 44 Neb. 610... 195
196
540
Table of Cases.
Sec.
Smith V. Mayo, 1 Allen (Mass.)
160 386
Smith V. Molleson, 148 N. Y.
241 112, 356
Smith V. Montgomery, 3 Tex.
203. . . . 84
Smith V. Old Dominion Building
& Loan Asso., 119 N. C. 257. . 139
Smith V. Patton, 131 N. C. 396.. 301
329
Smith V. Peoria Co., 59 111. 412 50
Smith V. Pitts (Ala. 1910), 52 So.
402 183
Smith V. Rhode, 68 Ohio St. 500 253
Smith V. Rice, 27 Mo. 505 64
Smith V. Roehrig, 90 Neb. 262.. 171
Smith V. Ruby, 6 Heisk. (Tenn.)
546 239, 240
Smith V. Rumsey, 33 Mich. 183- • 163
202
Smith V. Sawyer, 5 Me. 504 178
Smith V. Schneider, 84 N. Y.
Supp. 238 377
Smith V. Sheldon, 35 Mich. 42.. 2
20, 21, 100, 171
Smith V. Smith, IC N. C. 173 3
Smith V. Smithson, 48 Ark. 261 65
Smith V. Staples, 40 Conn. 90- . .194a
Smith V. Stephen, 53 Ga. 300.. 75
Smith V. United States, 2 Wall.
(U. S.) 219 55, 66, 80, 102, 104
Smith V. Weston, 88 Hun (N.
Y.) 25 26
Smith V. Whitten, 117 N. C. 389 239
Smith V. Winters, 4 Mees. & W.
454 35, 89, 117
Smythe v. United States, 188 U.
S. 156 316, 319
Snell V. State, 43 Ind. 359 325
Snell V. Warner, 63 111. 176.... 177
Snider v. Greathouse, 16 Ark. 72 187
Snively v. Fisher, 21 Pa. Super.
Ct. 56 114
Snoqualmi Realty v. Moynihan,
179 Mo. 629 112c
Snow V. Brown, 100 Ga. 117 203
Sec.
Snow Storm Mining Co. v. John-
son, 186 Fed. 745 398
Snowden, Ex parte, 17 Ch. Div.
44 211
Snydaeker v. Suan Land & Cat-
tle Co., 154 111. 220 192
Snyder v. Blair, 33 N. J. L. 208 186
Snyder v Gross (Neb.), 95 N. W.
636 334
Snyder v. Leibengood, 4 Pa. St.
305 341
Snyder's Estate, 7 Kulp. (Pa.)
409 341
Solenberger v. Strickler's Adm'r
110 Va. 273, 65 S. E. 566 .... 14
Sollee V. Mengy, Bailey L. (S.
C.) 620 371
Solomon v. Reese, 34 Cal. 36.. 139
Somers v. Pumphrey, 24 Ind. 231 25
Sooy V. State, 39 N. J. L. 135-. 126
140
Sooy V. State, 38 N. J. L. 324. . . . 309
Soule V. United States, 100 U. S.
8 337
South V. Maryland, 18 How. (U.
G.) 396 32e
South Berwick v. Hunter, 53 Me.
89 56
Southerland v. Coster, 55 Mich.
151 398
Southern Cotton Oil Co. v. Bass,
126 Ala. 343 78
South Omaha Nat. Bank v.
Wright, 45 Neb. 23 151
Southwick Bank v. Grosse, 35
Pa. St. 82 108
Soverhill v. Suydam, 59 N. Y.
140 252
Spann v. Cochran, 63 Tex. 240 377
392, 393, 396
Sparks v. Bank, 3 Del. Ch. 300 305
Spaulding v. Putnam, 128 Mass.
363 347
Spear v. Farmers & Mechanics'
Bank, 156 111. 555 374,386
Speed V. Willow Springs Distil-
ling Co., 140 Ky. 269 100
Table of Cases.
541
Sec.
■Spencer v. Alki Point Transp.
Co., 53 Wash. 77, 101 Pac. 509 28
Spencer v. Houghton, 68 Cal. 82 262
Sperb V. McCoun, 110 N. Y. 605 249
267
Spicer v. State, 9 Ga. 49 32
Spillman v. Smith, 15 B. Mon.
(Ky.) 134 177
Sprigg V. Bank, 10 Pet. (U. S.)
257 58
Sponhaur v. Malloy, 21 Ind.
App. 287 177, 190, 191
Spring Litho. Co. v. Wavey, 97
Cal. 30 362
Springs v. McCoy, 122 N. C. 628 26
Spurgeon v. Smith, 114 Ind. 453 224
Stacy V. Rose (Ch. App. 1900),
58 S. W. 1087 3
St. Albans Bank v. Dillon, 30
Vt. 122 376
Stafford v. Bank, 132 Mass. 315 153
Stahl V. Berger, 10 Serg. & R.
170 56
Stallengs v. Johnson, 27 Ga. 564 46
Standard Brewery Co. v. Kelly,
66 III. App. 267 30
Standard Oil Co. v. Arnestad, 6
N. D. 255 75, 84
Standard Oil Co. v. Hoese
57 Neb. 665, 78 N. W. 292 .... 348
Standard Supply Co. v. Finch,
154 N. C. 456 341
Standley v. Adams, 36 Miss. 434 342
Stanford v. Coram, 26 Mont. 285,
67 Pac. 1005 361
Stamford Bank v. Benedict, 15
Conn. 437 97
Stark V. Fuller, 42 Pa. St. 320 . . 150
Starr v. Commonwealth, 7 Dana
(Ky.) 243 414
Starr v. Milliken, 180 111 458.. 356
State V. Adams, 3 Head (Tenn.)
260 429
State V. Allen, 2 Humph.
(Tenn.) 258 429, 430
State V. Alsup, 91 Mo. 172 301
State V. Anderson, 119 Iowa 711 421
Sec.
State V. Anthony, 30 Mo. App.
638 246, 253
State V. Atherton, 40 Mo. 209.. 287
State V. Atkins, 53 Ark. 303 . . 157
State V. Aubrey, 43 La. Ann. 188 423
State V. Austin, 35 Minn. 51 54
State V. Babb, 39 Mo. App. 543. . 427
State V. Bagby, 160 Ind. 669, 67
N. E. 519 301
State V. Baker, 64 Mo. 167 315
State V. Baker, 47 Miss. 88 320
State V. Baldwin, 78 Iowa 737. . 423
State V. Barger, 92 Mo. App. 631 259
State V. Barnes, 52 W. Va. 85. . 323
325
State V. Barrett, 121 Ind. 92 247
State V. Bateman, 102 N. C. 52 310
State V. Bebee, 87 Iowa 636 418
State V. Becker, 80 Wis. 313 423
State V. Berger, 92 Mo. App. 631 264
265
State V. Berning, 74 Mo. 87.. 9, 203
247
State V. Berry, 34 Ga. 546 430
State V. Berry, 50 Ind. 496 305
State V. Blake, 2 Ohio St. 147 •• 173
State V. Blakemore, 7 Heisk.
(Tenn.) 638 276, 318
State V. Bliss, 19 Ind. App. 662. . 334
S^ate V. Buffalo, 2 Hill (N. Y.)
434 61
State V. Bobleter, 83 Minn. 479,
86 N. W. 461 302
State V. Boom, 44 Mo. 254 84
State V. Bordelon, 111 La. 105-. 434
State V Bowgard, 89 Minn. 426 434
State V. Bower, 72 Mo. 387 311
State V. Bowman, 10 Ohio 445. . 54
State V. Brantley, 27 Ala. 44 32
State V. Brooks, 48 La. Ann. 855 431
State V. Brown, 80 Ind. 425 253
State V. Brown, 11 Ired. (N. C.)
141 324
State V. Buffum, 27 N. H. 267-. 431
State V. Castleton, 1 Gill (Md.)
249 313
State V. Carroll, 9 Mo. App. 275 324
542
Table of Cases.
Sec.
State V. Chick, 146 Mo. 645. .102, 106
State V. Clark, 15 Ohio 595 431
State V. Cobb, 44 Mo. App. 375 431
State V. Cone, 32 Ga. 663 428
State V. Conover, 28 N. J. L. 224 324
State V. Corey, 16 Ohio St. 17.. 310
State V. Cornig, 42 La. Ann. 416 436
State V. Crooks, 7 Ohio 573 308
State V. Cunningham, 10 La.
Ann. 393 414
State V. Davidson, 20 Mo. 212.. '119
420, 431
State V. Davis, 88 Mo. 585 325
State V. Dayton, 101 Md. 598 66
SLate V. Denny, 10 La. Ann. 335 436
State V. Dent, 121 Mo. 162 331
State V. Doane, 30 La. Ann. 1194 431
State V. Dodd, 81 111. 162 333
State V. Drake, 52 Ark. 350.... 243
State V. Dreiker (Mo. App.), 74
S. W. 15 323
State V. Dunn, 11 La. Ann. 550 301
State V. Edwards. 4 Humph.
(Tenn.) 226 428
State ex rel. Jacobs v. Elliott,
157 Mo. 609 246
State V. Enslow, 41 W. Va. 744 333
State V. Evans, 32 Tex. 200 67
State V. Eyermann, 172 Mo. 294 433
State V. Farley, 8 Blackf. (Ind.)
229 420
State V. Findley, 101 Mo. 368.27, 55
State V. Fitzpatrick, 64 Mo. 185 324
State V. Flinn, 77 Ala. 100 33
State V. Flinn, 3 Blackf. (Ind.)
72 334
State V. Flynn, 161 Ind. 554.. 329
333
State V. Flynn, 157 Ind. 52 311
State V. French, 60 Conn. 478 . . 256
State V Ii\iller, 128 Ala. 45 423
State V. Funk, 20 N. D. 145 426
State V. Gambs, 68 Mo. 289 6
State V. Gibson, 21 Ark. 146 271
State V. Gideon, 158 Mo. 327-329, 333
State V. Glenn, 40 Ark. 332 431
Sec
State V. Gregory, 119 Ind. 503.. 251
256
State V. Hancock, 54 N. J. L. 393 431
State V. Harper, 6 Ohio St. 607. . 316
State V. Harrison, 99 Mo. App.
57, 72 S. W. 469 311
State V. Harvey, 57 Miss. 863 . . 309
State v. Haskitt, Riley (S. C),
97 -^27
State V. Hayes, 104 La. 461 434
State V. Henderson, 142 Mo. 598 331
State V. Hendricks, 88 Mo. App.
560 323
State V. Hill, 47 Neb. 456 54
State V. Himill, 6 La. Ann. 257. . 434
State V. Hindman, 159 Ind. 586 433
State V. Holman, 96 Mo. App.
193 72
State V. Holman, 93 Mo. App.
611 247
State V. Holmes, 23 Iowa 458 •. . 424
State V. Horn, 70 Mo. 466. . .414, 429
State V. Hostes, 61 Mo. 544 265
State V. Houston, 78 Ala. 576, 83
Ala. 361 316
State V. Houston, 74 N. C. 174. . 423
State V. Howe, 25 Ohio St. 597. . 305-
State V. Hughes, 15 Ind. 104 263
State V. Hull, 53 Miss. 626. 260, 265
State V. Ireland, 68 N. C. 300. • . 325
State V. Jennings, 4 Ohio St. 418 324
State V. Johnson, 7 Blackf.
(Ind.) 520 242, 258
State V. Johnson, 55 Mo. 80 310
State V. Jones, 29 Ark. 127 424
State V. Jones, 89 Mo. 470 69, 260
State V. Kennedy, 163 Mo. 510.. 247
State V. Kintzebone, 78 Me. 99 305
State V. Knotts, 10 Rich L. (S.
C.) 543 371
State V. Kraner, 50 Iowa 582.. 436
State V. Lake, 30 S. C. 43 331
State V. Lazarre, 12 La. Ann. 166 414
State V. Lanier, 31 La. Ann. 423 316
State V. Lingenfelt, 109 N. C.
775 414, 421
State V. Lyons, 7 La Ann. 540- . 419'
Table of Cases.
543
Btate V.
State V.
State V.
State V.
State V.
State V.
State V.
App.),
State V.
State V.
428 ..
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
State V.
Stat© V.
State V.
State V.
State V.
State V.
State V.
State V.
257 ..
State V.
State V.
State V.
N. W.
Sec.
Mackey, 55 Mo. 51. 423, 431
Mann, 21 Wis. 684 423
Martin, 20 Ark. 629... 321
Martin, 50 La. Ann. 24- ■ 425
Mathis, 3 Ark. 84 431
McCormack, 50 Mo. 568 328
McDannel (Tenn. Ch.
59 S. W. 451 308, 310
McGuire, 16 R. I. 519.. 433
McMichael, 50 La. Ann.
421
McNeal, 18 N. J. L. 33 428
Meier, 96 Iowa 375 422
Merrihew, 47 Iowa 112 426
Meyer, 2 Mo. App. 413 ■ . 336
Miller, 96 Iowa 375-. . 420
Miller, 109 La. 27 421
Mitchell, 132 Ind. 461.- 260
Montague, 34 Fla. 32.. 337
Moore, 74 Mo. 413. -316, 317
Moore, 19 Mo. 366 324
Moore, 56 Neb. 82.-301, 311
Morgan, 59 Miss. 349 . . 328
Moses, 18 S. C. 366 333
Murmann, 124 Mo. 502 421
431
Nevin, 19 Nev. 162
Nichols, 39 Miss. 318.
Nutter, 44 W. Va. 385
O'Blemis, 21 Mo. 272
Osborn, 155 Ind. 385..
Osier, 48 Iowa 343. .
Pack, 53 Me. 284
Page, 62 Ind. 209
Pare, 28 Mo. App. 512
Parker, 72 Ala. 181 . .
Paxton, 65 Neb. 110-
Peck, 53 Me. 284...
Pepper, 31 Ind. 76- 50,
56, 315, 362
Peterman, 66 Mo. App.
261
Peterson, 142 Mo. 526.. 325
Peyton, 32 Mo. App. 522 54
Porter, 69 Neb. 203, 95
769 301, 304
316
325
65
66
420
431
424
54
262
242
2
110
51
51
Sec.
State V Potter, 63 Mo. 212.. 50, 51
State V. Powell, "7 Mo. 395 317
State V. Powell, 44 Mo. 436 325
State V. Pratt, 148 Mo. 402 431
State V. Purdy, 67 Mo. 89 253
State V. Rhoades, 6 Nev. 352 304
State V. Roberts, 12 N. J. L. 114 328
State V. Rollins, 52 Ind. 108 436
State V. Rousseau, 39 Tex. 614 421
State V. Rucker, 59 Mo. 17 249
State V. Ryland, 163 Mo. 280-. 301
304, 336
State V. Sandy, 138 Iowa 580.. 413
State V. Sappington, 67 Mo. 529 308
State V. Satterwhite, 20 S. C.
536 24
State V. Saunders, 8 N. J. L. 177 434
436
State V. Scott, 12 Ind. 529. 253, 256
258
State V. Scott, 20 Iowa 63 . . 414, 428
429, 431
State V. Schexneider, 45 La.
Ann. 1445 422, 434
State V. Shackleford, 56 Miss.
648 260
State V. Shafer, 152 Mo. App.
538 66
State V. Shelby, 75 Mo. 482 . . 242
258
State V. Slauter, 80 Ind. 597-
State V. Slevin, 93 Mo. 253
State V. Sloan, 20 Ohio 327-
State V. Smith, 68 Mo. 641
State V. Smith, 26 Mo. 226
State V. Smith, 66 N. C. 620
State V. Sooy, 39 N. J. L. 539
65, 265
264
329
253
337
431
307
337
State V. Spear, 54 Vt. 503.. 426, 427
State V. Stephenson, 2 Swan
(Tenn.) 308 423
State V. Stewart, 74 Iowa 336.. 431
State V. Stommel, 89 Iowa 67.. 422
State V. Stout, 26 Ind. App. 446 301
State V. Stroop, 22 Ark. 328 248
State V. Sullivan, 45 Minn. 309. . 305
State V. Supervisor. 59 111. 412- . 51
544
Table of Cases.
Sec.
State V. Sureties, 4 Wyo. 347 ■• 413
State V. Swinney, 60 Miss. 39- • . 227
State V. Taylor, 100 Mo. App. 481 253
State V. Trahan, 31 La. Ann. 715 421
State V. Traphagen, 45 N. J. L.
134 428, 434
State V. Tubbs, 37 N. Y. 586. - . . 428
State V. Vion, 12 La. Ann. 688- . 413
State V. Warren, 17 Tex. 283-. 433
State V. Warrick, 3 Ind. App.
508 436
State V. Watson, 38 Ark. 96 332
State V. Weeks, 92 Mo. App. 359 301
State V. Welbes, 12 S. D. 339. .51, 103
State V. Wells, 8 Nev. 105 305
State V. Western Surety Co., 26
S. D. 171 405
State V. Whitson, 8 Blackf.
(Ind.) 178 423
State V. Williams, 84 S. C. 21- • • 423
State V. Wilmer, 65 Md. 178.. 253
255
State V. Wilson, 14 La. Ann.
450 431
State V. Winninger, 81 Ind. 51.. 431
State V. Wyant, 67 Ind. 25 23
State V. Yates (Mo. 1910), 132
S. W. 672 67
State V. Young, 23 Minn. 551.. 48
49, 51, 56, 310
State V. Zimmerman, 112 Iowa
5 421, 423
State Bank v. Brennan, 7 Colo.
App. 427 325
State Bank v. Burton Gardner
Co., 14 Utah 420 3, 350
State Bank v. Chetwood, 8 N. J.
L. 1 292
State Bank v. Evans, 15 N. J. L.
155 50
State Bank v. Smith, 155 N. Y.
185 137
State Nat. Bank v. Hayden, 14
Neb. 480 357
Stayner v. Joice, 82 Ind. 35 • • . 105
Steadham v. Guthrie, 4 Met.
(Ky.) 147 45
Sec.
Stebbins v. Mitchell, 82 Ky. 535 195
Stebbins v. Scott, 172 Mass. 355 377
384
Steckel v. Steckel, 28 Pa. St. 233 178
Steel V. Auditor General, 111
Mich. 381 34
Steel V. Dixon, 17 Ch. D. 825.. 205
Steele v. Johnson, 96 Mo. App.
147 113, 114
Steele v. Mealing, 24 Ala. 285.. 208
Steele v. Souder, 20 Kan. 39 90
Steelman v. Mattix, 38 N. J. L.
247 411, 412, 430
Steinberg v. State, 42 Ark. 127. . 421
Steiner v. Steiner Land & Lum-
ber Co., 120 Ala. 120 30
Steingrebe v. Beveling Co., 83
111. App. 587 154
Stelle V. Lovejoy, 125 111. 352.. 224
Stelle's Case, 34 N. J. Eq. 199- . 278
Stemmerman v. Lillianthal, 54
S. C. 440 393
Stephens v. Graham, 7 Serg. &
R. (Pa.) 505 102, 105
Stephenson v. Elliott, 53 Kan.
550 11
Stern v. People, 102 111. 340, 540 314
315
Stern v. People, 96 111. 475. 69, 301
Sternbach v. Friedman, 34 App.
Div. (N. Y.) 54 152
Sterns v. Marks, 35 Barb. (N.
Y.) 565 365, 366
Stetson v. Bank, 12 Ohio St. 577 77
Stevens v. Bigelow, 12 Mass. 437 411
Stevens v. Cooper, 1 Johns. Ch.
(N. Y.) 430 152
Steele v. Graves, 68 Ala. 17 257
Stevens v. Gaylord, 11 Mass. 256 252
Stevens v. Hay, 61 111. 399 416
Stevens v. Lynch, 12 East 88.. 35
37, 89
Stevens v. Oaks, 58 Mich. 343.. 171
Stevens v. Stevens, 3 Redf. (N.
Y.) 507 247
Stevens v. Tucker, 89 Ind. 109. . 201
209, 260
Table of Cases.
545
Sec.
Stevenson v. Palmer, 14 Colo.
565 220
Stewart v. Baehm, 2 Watts (Pa.)
356 92
Stewart v. Campbell, 58 Me. 459 392
Stewart v. Goulden, 52 Mich. 143 196
Stewart v. Johnston, 87 Ga. 97 260
275
Stewart v. McGuire, 1 Cow. (N.
Y.) 99 411
Stewart v. Parker, 55 Ga. 656 •• 171
Stewart v. Sholl, 99 Ga. 534 331
Stewart Gwynne & Co. v. Sharp
County Bank, 71 Ark. 585-... 348
Stifer V. State, 114 Ind. 291 325
Stillman v. Dresser, 22 R. I. 389 381
Stillman v. Wickham, 106 Iowa
597 100
Stillwell V. Aaron, 69 Mo. 539 •■ 115
171
Stillwell V. American Surety
Co., 70 Ark. 512 67a, 126
Stillwell V. How, 46 Mo. 589 210
Stinson v. Brennan, Cheves (S.
C.) 15 188
St. John's College v. Aetna In-
demnity Co., 201 N. Y. 335 - • 100
112a, 112d, ll2e
St. John's College v. Aetna In-
demnity Co., 135 App. Dlv. (N.
Y.) 480 100, 112a, 112d. 112e
St. Louis V. Henning, 235 Mo. 44 423
St. Louis V. Von Phul, 133 Mo.
561 112
St. Louis Brewing Ass'n v.
Hayes, 38 C. C. A. 449 54
Stockmeyer v. Oertling, 35 La.
Ann. 467, 469 194a, 203
Stockwell V. Robinson, 9 Houst.
(Del.) 313 324
Stoddard v. Hibbler, 156 Mich.
335 112
Stokes V. People, 63 111. 489 423
Stolze V. United States Fidelity
& Guaranty Co. (Mo. App.
1910), 131 S. W. 915 95
35
Sec.
Stone V. Bicket, 31 Misc. R. (N.
Y.) 183 149
Stone V. Compton, 5 Bing. (N.
C.) 142 141
Stone V. Hammell, 83 Cal. 547-. 180
182, 190. 195
Stone V. Rockefeller, 29 Ohio St.
625 359
Stone V. Seymour, 15 Wend. (N.
Y.) 20 337
Stone V. Walker, 13 Gray
(Mass.) 612 399
Stone V. White, 8 Gray (Mass.)
589 110
Stoner v. Keith County, 48 Neb.
279 51, 55, 110
Stoner v. Milliken, 85 111. 218.. 57
78, 315
Stone River Nat. Bank v. Wal-
ter, 104 Tenn. 11 46
Stork V. American Surety Co.,
109 La. 713 301, 336
Storts V. George, 150 Mo. 1 152
Stout V. Vause, 1 Rob. (Va.)
179 199
Stovall V. Adair, 9 Okla. 620... 210
Stovall V. Bank, 78 Va. 188.. 7, 194
206
Stovall V. Banks, 10 Wall. (U.
S.) 583 63, 65, 243, 252
Stowall V. Raymond, 83 111. 120 347
Stowell V. Grain, 184 Mass. 562 374
St. Paul Title & Trust Co. v.
Sabin, 112 Wis. 105 141
Strain v. Babb, 30 S. C. 342 333
Strange v. Lee, 3 East 484 84
Stratton v. City Trust, Safe De-
posit & Surety Co., 86 App.
Div. (N. Y.) 551 271
Stratton v. Hill, 134 Mass. 27.. 392
Straw v. Krouser, 114 Iowa 916 412
Strawbridge v. Railroad Co., 14
Md. 360 72, 285, 286
Streeper v. Victor Sewing Mach.
Co., 112 U. S. 676 66
Strong V. Foster, 17 C. B. 201 . 99, 170
546
Table of Cases.
Sec.
Strong V. Grannis, 26 Barb. (N.
Y.) 122 32, 136
Strong V. Lyon, 63 N. ¥.172 354
Strong V. Taylor, 79 Ind. 208 • • 193
Stroud V. Thomas, 139 Cal. 274 36
37, 39, 114
Strouse v. Querns, 22 Pa. Super.
Ct. 6 365
Stuart V. Lancaster, 84 Va. 772 122
Studebaker v. Cody, 54 Ind. 586 349
Stull V. Hance, 62 111. 52 224
Stull V. Lee, 70 Iowa 31 74
Stultz V. Zahn, 117 Ind. 227 224
Sturtevant v. Randall, 53 Me.
149 210
Stuts V. Strayer, 60 Ohio St. 284 101
Sublett V. McKinney, 19 Tex. 438 14
178
Succession of Vorhis, 21 La.
Ann. 659 90
Sullivan v. Fried, 42 Mont. 335.. 224
Sullivan v. State, 121 Ind. 342 329
Summerhill v. Tapp, 52 Ala. 227 171
Summit v. Coletta (N. J. L.
1911), 78 Atl. 1047 224
Summons v. Sharpe (Ala. 1911),
56 So. 849 224
Sumner v. Tuck, 10 Mo. App. 269 158
Supervisors v. Bates, 17 N. Y.
242 311
Supervisors v. Kaime, 39 Wis.
468 317
Suppler V. Herman, 16 Pa.
Super. Ct. 45 172
Sutherland v. Carr, 85 N. Y. 105 75
Swan V. Nesmith, 7 Pick.
(Mass.) 220 394
Swank v. State, 3 Ohio St. 429,
433 423, 427
Swarts V. Fourth Nat. Bank, 117
Fed. 1 94
Swartz V. Badon, 47 Iowa 188.. 56
Swasey v. Doyle, 88 Mo. App.
536 112a
Sweeney v. Lustfield, 116 Mich.
969 163
Seo.
Sweet V. McAlister, 4 Allen
(Mass.) 354 210
Sweetzer v. French, 2 Cush.
(Mass.) 309 26
Swift V. State, 63 Ind. 81 329
Swift V. Trustees of Schools, 189
111. 584 301, 317
Swift V. Trustees of School, 91
111. App. 221 301
Swift V. Tyson, 16 Pet. 1 39
Swift & Co. V. Kortrecht, 112
Fed. 709 151
Swigart v. Genterf, 63 Neb. 157 374
Swire v. Redman, L. R. 1 Q. B.
Div. 536 20, 21
Swisher v. Deering, 104 111. App.
572 348
Swisher v. McWhinney, 64 Ohio
St. 343 261, 269
Sylvester v. Downer, 20 Vt. 355 347
Sylvester v. Downer, 18 Vt. 32 353
Syracuse v. Roscoe, 66 Misc. R.
(N. Y.) 317 93a
T.
Taft V. Gillord, 13 Met. (Mass.)
187 288
Taintor v Taylor, 36 Conn. 242 429
Talbot V. Gay, 18 Pick. (Mass.)
534 349
Talbot V. Whipple, 14 Allen
(Mass.) 177 295
Talcott V. Rose (Tex. Civ. App.),
64 S. W. 1009 238
Talley v. State, 44- Tex. Cr. App.
162 421
Tally V. Ganahl, 151 Cal. 418- 1, 112d
Talmadge v. Burlingham, 5 Pa.
St. 21 5, 95
Tapley v. Martin, 116 Mass. 275 288
290, 291, 292, 293
Tappan v. People, 67 111. 339 320
Tarentum Realty Co. v. Mc-
Clure, 230 Pa. St. 266 69
Tarnier v. Nance, 5 Ala. 718 ... . 226
Tarr v. Ravenscroft, 12 Gratt.
(Va.) 642 198
Table of Cases.
547
Sec.
Tate V. Holly (Colo. App. 1912),
122 Pac. 58 26
Tate V. James, 50 Vt. 124 321
Tatum V. Brown, 23 Miss. 760.. 347
Tatum V. Morgan, 108 Ga. 336,
33 S. E. 940 363
Taussig V. Reid, 145 111. 488.. 351
352, 353, 354, 356
Taylor v. Bank, 11 App. Cas.
596 100
Taylor v. Bank, 2 J. J. Marsh.
(Ky.) 264 290
Taylor v. Delbols, 4 Mason 131. . 255
Taylor v. Farmer's Bank, 87 Ky.
398 151
Taylor v. Hand, 7 How. (U. S.)
581 60
Taylor v. Johnson, 17 Ga. 521- • 321
Taylor v. Lohman, 74 Ind. 418- . 140
Taylor v. McCluney, 2 Houst. 38 355
Taylor v. Parker, 43 Wis. 78 324
Taylor v. Preston, 79 Pa. St. 436 397
Taylor v. Ross, 3 Yerg. (Tenn.)
330 349
Taylor v. Simpkins, 38 Misc. R.
(N. Y.) 246 361
Taylor v. State, 73 Md. 208 280
Taylor v. Sullivan, 45 Minn. 309 305
Taylor v. Taintor, 16 Wall. (U.
S.) 366. .412, 414, 421, 428, 429, 430
Taylor v. Tolman Co., 47 111.
App. 264 348
Taylor Town v. Morter, 37 Iowa
550 316
Teasley & Co. v. Ray, 9 Ga. App.
649 2
Tebbetts v. Dowd, 23 Wend. 379 89
Tebo V. Betancourt, 73 Miss. 868 222
Tebry v. Swenson, 32 Kan. 224. . 174
Temple v. Rush, 76 Conn. 41 374
Templeton v. Shakley, 107 Pa.
St. 370 131
Ten Eyck v. Brown, 3 Pin.
(Wis.) 452 357
Tenney v. Prince, 4 Pick.
(Mass.) 385 341
Sec.
Territory v. Woodward, 15 N. M.
161 423
Tessin v. Crowley, 17 Neb. 207. 27
Tevis V. Randill, 6 Cal. 632.... 336
Tevis V. Savage, 130 Cal. 411.. 374
398
Tharp v. Parker, 86 Ind. 102... 171
Thayer v. Daniels, 110 Mass.
345 192
Thayer v. HoUis, 3 Met. (Mass.)
369. . . . 243
Thomas v. Bleakie, 136 Mass.
52. . . . 51
Thomas' v. Burrus, 23 Miss. 550 60
Thomas v. Carter, 63 Vt. 609- . . 187
Thomas v. City Nat. Bank of
Hastings, 40 Neb. 501. 31
Thomas v. Clarkston, 125 Ga.
78 134
Thomas v. Cleveland, 33 Mo. 126 137
Thomas v. Cole, 10 Heisk.
(Tenn.) 411 226
Thomas v. Cook, 8 Barn. & C
728 382
Thomas v. Dodge, 8 Mich. 50.. 390
Thomas v. Hubbell, 15 N. Y.
405 194a
Thomas V. Liebke, 81 Me. 675.. 174
Thomas v. Markman, 43 Neb.
623 238
Thomason v. Keeney, 8 Ga. App.
852. . . . 144a
Thompkins v. Hunter, 149 N. Y.
117. . . . 189
Thompson v. Armstrong, Breese
(111.) 53 359
Thompson v. Arnett, 23 Ky. Law
Rep. 1082 222
Thompson v. Broad, 30 111. 99. . 316
Thompson v. Deimer, 16 App.
Div. (N. Y.) 168 59, 272, 299
Thompson v. Dekum, 32 Oreg.
506 203, 209
Thompson v. Glover, 78 Ky. 193 45
Thompson v. Gray, 63 Me. 228. 41
54'8
Table of Cases.
Sec.
Thompson v. Lock, 3 M. G. & S.
540 294
Thompson v. Lockwood, 15
Johns. (N. Y.) 256 32, 136
Thompson v. MacGregor, 81 N.
Y. 592 273, 276
Thompson v. Nowlin, 51 W. Va.
346 256
Thompson v. Rush, 66 Neb. 758. 59
Thompson v. State, 37 Miss. 518 305
Thompson v. Taylor, 72 N. Y.
32 14, 183
Thompson v. Thompson, 19 Me.
224 35
Thompson v. Thompson, 4 Ohio
St. 333 12
Thompson v. "Watson, 10 Yerg.
362 146
Thompson v. Way, 173 Mass.
423 405
Thompson V. Young, 2 Ohio 334. 72
Thomssen v. Hall County,
63 Neb. 777, 89 N. W. 389. .317, 319
Thornburg v. Allman, 8 Ind.
App. 531 2
Thornburgh v. Madren, 33 Iowa
380 147
Thornton v. Williams, 71 Ala.
555 396, 397
Thurber's Estate, Matter of, 162
N. Y. 244 438
Thurber's Estate, Matter of, 43
App. Div. (N. Y.) 528 438
Thurman v. Morgan, 79 Va. 367 272
Tidball v. Young, 58 Neb. 261,
78 N. W. 507 242
Tidioote Savings Bank v. Lib-
bey, 101 Wis. 193. . 82, 357
Tieman v. Haw, 49 Iowa 312. . . 324
425
Tighe V. Morrison, 116 N. Y.
263 374, 382, 383, 386
Tillson V. State, 29 Kan. 452... 54
Tilton V. Cofield, 93 U. S. 163.. 217
Timmons v. Butler-Stevens &
Sea
Co. (Ga. S. C. 1912), 74 S. E.
784. . . , 128, 146
Tinker v. McCauley, 3 Mich. 188 357
Title, Guaranty & Surety Co. v.
Baglin, 178 Fed. 682. .. . . .122. 141
Title Guaranty & Trust Co. v.
Murphy, 52 Wash. 190 67
Title V. Bennett, 94 Ga. 405 8
Tobey v. Ellis, 114 Mass. 120.. 116
Tobias V. Rogers, 13 N. Y. 59 . . 212
Todd V. Maxfield, 3 Barn. & Cr.
222. ... 412
Teles V. Adee, 84 N. Y. 222 410
4U
Toleton & Stetson Co. v. Rob-
erts, 115 Iowa 474 126
Tollison V. State, 139 Ala. 159.. 423
Tolman v. Griffin, 111 Mich. 301 362
Tom V. Goodrich, 2 Johns. (N.
Y.) 213 11, 179, 199
Tomlinson v. Simpson, 33 Minn.
443 103
Tompkins v. Woodyard, 5 W.
Va. 216. . . 26
Tootle V. Elgutter, 14 Neb. 160 356
Torp V. Gulseth, 37 Minn. 135. 154
Torrence v. Alexander, 85 N. C.
143 171
Toucey v. Schell, 15 Misc. (N.
Y.) 350 203
Toulinin v. Copland, 2 CI. & F.
681. ... 98
Towle V. Bradley, 2 S. Dak. 472. 27
Towle V. Towle, 46 N. H. 431... 252
Town of Point Pleasant v.
Greenlee, 63 W. Va. 207 38
Town of Whitestown v. Title
Guaranty & Surety Co., 72
Misc. R. (N. Y.) 498 442, 443
Towne v. Ammidown, 20 Pick.
535 23, 249
Townsend v. Everett, 4 Ala. 607 302
Townsend v. Long, 77 Pa. St.
143 12
Townsend v. Star Wagon Co.,
10 Neb. 615 108
Table of Cases.
549
Sec.
Townsend v. Sullivan, 3 Cal.
App. 115 18, 174, 181
Townsend v. White, 102 Iowa
47 383
Townsend Nat. Bank v. Jones,
151 Mass. 454. . . 217
Tracy v. Goodwin, 5 Allen 409. 321
324
Tradesmen's Nat. Bank v. Na-
tional Surety Co., 54 App, Div.
(N. Y.) 631 72
Train v. Emerson (Ga. S. C.
1912), 74 S. E. 241. 194
Train v. Gold, 5 Pick. (Mass.)
380 341
Trammell v. Swan, 25 Tex. 473. 126
Trank v. Traylor, 130 Ind. 145.. 152
Travelers' Ins. Co. v. Mayo, 170
111. 498. . . . 124
Travelers' Ins. Co. v. Stiles, 82
App. Div. (N. Y.) 441 72
101, 297a
Trenholm v. Kloepper, 88 Neb.
236 374
Trevert v. Henry, 14 Neb. 191. 178
Treweek v. Howard, 105 Cal. 434 251
Tripp V. Harris, 154 N. C. 296.. 174
Troth V. Gaar Scott & Co. (Civ.
App. 1910), 126 S. W. 670.... 117
Trotter v. Strong, 63 111. 272. . . 95
Trudeau v. Poutre, 165 Mass.
81 385
True V. Fuller, 21 Pick. (Mass.)
140 357
Trumbull Co. v. Horner, 17 Ohio
407 61
Trustees v. Gilliford, 139 Ind.
524 362
Trustees v. Sheik, 119 111. 579.. 54
Trustees v. Smith, 88 111. 181.. 303
Trustees v. Southard, 31 111.
App. 359. . . 145
Truston v. Prentiss, 1 Mich.
193 185
Trust Safe Deposit & Surety Co.
V. Lee, 204 HI. 69 444
Sec.
Tucker v. Blandin, 48 Hun (N.
Y.) 439. 357
Tucker v. People, 87 111. 76 258
Tucker v. State, 72 Ind. 242 32
Tucker v. Stewart, 147 Iowa 294 242
243
Tucker v. White, 5 Allen
(Mass.), 333 218
Tudor V. De Long, 18 Mont. 499 189
Tudor V. Goodloe, 1 B. Mon
(Ky.) 322 115
Tully V. Lewitz, 50 Misc. (N.
Y.) 350. ... 54
Tumwater, Town of v. Hard, 28
Wash. 684 309
Tunbridge v. Smith, 48 Vt. 648. 337
Turner v. Collin, 4 Heisk.
(Tenn.) 89 325
Turner v. Franklin, 10 Ariz.
188 441
Turner v. Hubbell, 2 Day
(Conn.) 457 401
Turner v. Killian, 12 Neb. 580.. 324
Turner v. Session, 137 Mass. 191 327
Turner v. Teague, 73 Ala. 554.. 338
Turner v. Williams, 73 Me. 466. 375
Turnson v. Cramer, 5 N, J. L.
574 74
Tuscumbia v. Rodes, 8 Ala. 206. 144
Tussell V. Williams, 87 Mo. App.
518 374
Tutt V, Thornton, 57 Tex. 35.. 163
178
Tuttle V. Bartholomew, 12 Met.
(Mass.) 452. . 357
Tuttle V. Binney, 12 Mete.
(Mass.) 452 357
Twiss V. Guaranty Life Assn.,
87 Iowa 733.. . . 28, 38
Twohy V. McMurran, 57 Minn.
242 340
Tyner v. Hamilton, 51 Ind. 250. 262
Tyng V. American Surety Co.,
174 N. Y. 166 222
Tyng V. American Surety Co.,
69 App. Div. (N. Y.) 137 222
550
Table of Cases.
U. Sec.
Uhert V. Schonger, 144 App. Div.
(N. Y.) 696 387
Uhler V. Applegate, 26 Pa. St.
140. . . . 114
Uhler V. Bank, 64 Pa. St. 406-. 341
Ullman Realty Co. v. Hollander,
66 Misc. R. (N. Y.) 348... 101, 111
Ulster County Sav. Bank v. Os-
trander, 163 N. Y. 430. 70, 71
Ulster County Sav. Bank v. Os-
trander, 15 App. Div. (N, Y.)
173 71
Ulster County Savings Inst. v.
Young, 161 N. Y. 23. 67, 71
Ulster County Sav. Inst. v.
Young, 15 App. Div. (N. Y.)
181 71
TJmbreit v. American Bonding
Co., 144 Wis. 611 232, 233
Underwood v. Hossack, 38 111.
206. . . . 41, 341
Union Bank v. Coster, 3 N. Y.
204. , . . 355
Union Bank v. Forrest, 3
Cranch. C. C. 218 297
Union Bank v. Ridley, 1 H. &
G. (Md.) 324. . . 72, 298
Union Bank v. Willis, 8 Mete.
(Mass.) 504, 510. . 86
Union Guaranty & Trust Co. v
Robinson, 79 Fed. 420. 65
Union Mut. Life Co. v. Hanford,
143 U. S. 187. . 11,12, 13
Union Town v. Smith, 39 Iowa
9. . . 316
Uniontown Bank v. Mackey, 140
U. S. 220. . 113
Union Trust Co. v. McCrum,
145 App. Div. (N. Y.) 409.... 36
57, 122
Union Trust Co. v. Motor Co.
117 Mich. 631, 76 N. W. 112. . . 361
United States v. Abell, 174 Fed.
12 329
United States v. Adams, 24 Fed.
348. . . . 316
Sec.
United States v. Allsburg, 4
Wall. (U. S.) 186 1, 94
United States v. Arnold, 1 Gall.
348 319
United States v. Averill, 130 U.
S. 335 330
United States v. Blackland, 32
Fed. 156 ..427, 430
United States v. Boyd, 15 Pet.
(U. S.) 187 . ...260, 285, 302 314
United States v. Boyd (U. S. C
C), 118 Fed. 89 301
United States v. Bradley, 10
Pet. (U. S.) 361. 59, 60, 309
United States v. Broadhead, 127
U. S. 112. . . 318
United States v. Cheesman, 3
Saw. 424. . . 310, 337
United States v. Curtis, 100 U.
S. 119 183, 319
United States v. Cushman, 2
Sumner (U. S. C. C.) 434-... 68
United States v. Dashiel, 4
Wall. (U. S.) 182 316
United States v. Dunbar, 83 Fed.
151. . . 431
United States v. Faulkner, 144
Ky. 629 301
United States v. Giles, 9 Cranch.
(U. S.) 212 276
United States v. Goldstein, 1
Dill. C. C. 43.. 431
United States v. Hines, 3 Mac.
A. 27 324
United States v. Hodge, 6 How.
279. . . 116, 123
United States v. Hodson, 10
Wall. (U. S.) 395. . 59a
United States v. Freel, 186 U. S-
309. . . 113a
United States v. Kirkpatrick,
9 Wheat. (U. S.) 720 313, 314
United States v. Lanchaster, 4
Wash. C. C. 64. . . 418
United States v. Linn, 15 Pet.
290 35, 44, 213
Table of Cases.
551
Sec.
United States v. Maloney, 4 App.
Dist. C. 505 67
United States v. Marrin, 170
Fed. 476 429
United States v. McGlashire, 66
Fed. 537 434
United States v. Mclntyre (U.
S. C. C), 111 Fed. 590 100
United States v. McMullen, 222
U. S. 460 113a
United States v. Morgan, 11
How. (U. S.) 160 316
United States v. Nicoll, 12
Wheat. (U. S.) 505. 70
United States v. Poulson, 30
Fed. 231. . . 319
United States v. Prescott, 3
How. (U. S.) 578. . 316
United States v. Preston, 4
Wash. C. C. 446. 432
United States v. Price, 9 How.
(U. S.) 83 86
United States v. Rogers, 28 Fed.
607 309
United States v. Rundle, 107
Fed. 227 65
United States v. Ryder, 110 U
S. 729. . ..338, 413, 415, 432
United States v. Simmons, 47
Fed. 375 415, 416
United States v. Stone, 106 U.
S. 525 337
United States v. Thomas, 15
Wall. (U. S.) 337 316
United States v. Tingey, 5 Pet.
(U. S.) 129. 60, 259, 309
United States v. Trust Co., 89
Fed. 921 113
United States v. United States
Fidelity & Guarantee Co., 186
Fed. 477 333
United States v. United States
Fidelity & Guaranty Co. (U.
S. C. C), 178 Fed. 721... 67, 113b
United States v. Van Fossen, 1
Dil. (U. S.) 406 429
Sec
United States v. Van Fossen, 28
Fed. Cas. 357, No. 16607 .... 429
United States v. Vanzandt, 11
Wheat. (U. S.) 184 314
United States v. Watts, 1 N.
Mex. 553. . . 316
United States v. West, 8 App. D.
C. 59 70
United States v. Witten, 143 U.
S. 76 314
United States Co. v. Summers,
110 Md. 95 112c
United States Fidelity & Guar-
anty Co. V. Board of Commis-
sioners of Woodson County,
145 Fed. 144. . 66, 67
United States Fidelity & Guar-
anty Co. V. Commonwealth,
31 Ky. Law Rep. 1179 67b
United States Fidelity & Guar-
anty Co. V. Fultz, 76 Ark. 410 69
United States Fidelity & Guar-
anty Co. V. Haggart, 91 C.
C. A. 289 54
United States Fidelity & Guar-
anty Co. V. Jasper, 56 Tex.
Civ. App. 236 66
United States Fidelity & Guar-
anty Co. V. McGinnis' Admr.
(Ky. C. A. 1912), 145 S. W.
1112 194c, 200, 438, 447
United States Fidelity & Guar-
anty Co. V. Means & Fulton
Iron Works (Tex. Civ. App.
1910), 132 S. W. 536..... 112b, 141
144a
United States Fidelity & Guar-
anty Co. V. Merkly, 23 Ky.
Law Rep. 1570 284
United States Fidelity & Guar-
anty Co. V. Parker (Wyo.
1912), 121 Pac. 531...... 259a, 269
442
United States Fidelity & Guar-
anty Co. V. Paxton, 142 Ky.
361 189, 438
652
Table of Cases.
Sec.
United States Fidelity & Guar-
anty Co. V. Probst, 30 Ky.
Law Rep. 63. . 112f
United States Fidelity & Guar-
anty Co. V. Rice, 148 Fed. 206.144a
United States Fidelity & Guar-
anty Co. V. Russell Co., 141 Ky.
601 246
United States Fidelity & Guar-
anty Co. V, Sexton, 134 Ga.
56 26
United States Fidelity & Guar-
anty Co. c. Siegmann, 87
Minn. 175.. . . 48a
United States Fidelity & Guar-
anty Co. V. Studoval (U. S.
S. C. 1912), 32 Sup. Ct. 298.. 191
United States Fidelity & Guar-
anty Co. V. Union Trust & S.
Co.. 142 Ala. 532 54
United States Fidelity & Guar-
anty Co. V. United States, 178
Fed. 692. . . 113b
United States Fidelity & Guar-
anty Co. In re, 50 Misc. R.
(N. Y.) 147. . 296
United States Glass Co. v. Bot-
tle Co., 89 Fed. 993 102
United States Glass Co. v. Mat-
hews, 89 Fed. 828. . 104
United States Gypsum Co. v.
Central Railway & Equipment
Co., 152 111. App. 467 370
United States Life Ins. Co. v.
Salmon, 157 N. Y. 682 51
University of Cambridge v.
Baldwin, 5 Mees. & W. 585.. 84
Urmston V. State, 73 Ind. 175.70, 75
Utterson v. Elmore, 154 Mo.
App. 646 66, 101, 112a, 112b
V.
Valtz V. Harris, 40 111. 155 348
Van Alstyne v. Sorley, 32 Tex.
518. ... 14
Van Buren County v. American
Sea
Surety Co., 137 Iowa 490 66
67, 443, 448
Vance v. Hair, 25 Ohio St. 349 . . 90
Vance v. Lancaster, 3 Hayw.
(Tenn.) 130. . 184
Vancil v. Hogler, 27 Kan. 407.. 114
Vanderbeck v. Tierney-Connelly
Const. Co., 77 N. J. L. 664, 73
Atl. 480 93a
Vandergazelle v. Rodgers, 57
Mich. 132 411
Vanderveer v. Asbury Park & B.
S. R. Co. (C. C), 82 Fed. 355-. 30
Van Derveer v. Wright, 6 Barb.
(N. Y.) 547. 89
Vandewater v. Davis, 92 Ark.
604. . . 171
Van Etten v. Commonwealth,
102 Pa. St. 596. . 333
Van Etten v. Koster, 48 Neb.
152. . . . 144
Van Keuren v. Parmelee, 2 N. Y.
523 90
Van Patton v. Beals, 46 Iowa
62. . . . 25
Van Pelt v. Little, 14 Cal. 194-. 324
Van Petten v. Richardson, 68
Mo. 382 196
Vansant v. State, 96 Md. 110 333
Van Sickel v. Buffalo Co., 13
Neb. 103. . . 69, 301
Van Slyke v. Bush, 123 N. Y.
47 277
Van Valkenburgh v. Oldham, 12
Cal. App. 572. . . 66, 356
Vaughn v. Smith, 65 Iowa 579. 392
393
Veach V. Rice, 131 U. S. 293 . . 249
257
Veazie v. Willis, 6 Gray (Mass.)
90. . . . 78, 351
Vermeule v. York Cliffs Im-
provement Co., 105 Me. 350.. 174
182
Vescheiser v. Newman, 135 N.
Y. Supp. 671 Ill
Table of Cases.
55a
Sec.
Vert V. Voss, 74 Ind. 565 157
Vetter v. Welz & Zerwerk, 143
App. Div. (N. Y.) 121. 359
Viele V. Hoag, 24 Vt. 46.... 116, 193
Village of Chester v. Leonard,
68 Conn. 495. . . 45
Villars v. Polner, 67 111. 204. .. . 134
Vivian v. Otis, 24 Wis. 518.. 273, 302
Vliet V. Wyckoff, 42 N. J. Eq.
642 201
Vogel V. Melins, 31 Wis. 30. .382 383
Voltz V. National Bank, 158 111.
532 169
Voorhies v. Atlee, 29 Iowa 49 . . 359
360
Voris V, Star City Building &
Loan Assn., 20 Ind. App. 630. 377
Voris V. State, 57 Ind. 345-. 263, 306
Voss V. Bank, 83 111. 599- ..... • 99
Voss V. Lewis, 126 Ind. 155 200
W.
Waddell v, Bradway, 84 Ind.
537. . . 62
Wade V. Creighton, 25 Oreg. 455 210
Wade V. Graham, 4 Ohio 126... 253
Wade V. Mt. Sterling (Ky.), 33
S. W. 1113 292
Wadsworth v. Cheney, 13 Iowa
576. . . . 217
Wagmore v. State, 80 Ind. 67 . . 325
Waggoner v. Dyer, 11 Leigh.
(Va.) 384 133
Wagones v. Watts, 44 N. J. L.
126 92
Wain V. Walters, 5 East. 10. ... 39
Wait V. Wait, 28 Vt. 350 379
Walch V. Miller, 51 Ohio St. 462. 133
Walch V. Seymour, 28 Conn. 387 282
Waldsop V. Wolff, 114 Ga. 610.. 65
203
Waldup V. Black, 74 Cal. 409... 1S6
Walker v. Archer (Mich. 1901),
87 N. W. 754 94
Walker v Commonwealth, 79
Ky. 292. . . 433
Walker v. Dicks, 80 N. C. 263.
Walker v. Forbes, 25 Ala. 139,
(Sec.
144
159
353
355
Walker v. Hall, 1 Pick. (Mass.)
20. . .. 256
Walker v. Hill, 119 Mass. 249.. 377
388, 391, 393, 398
Walker v. Holmes, 22 Wend. (N.
Y.) 614 27
Walker v. Holtzclaw, 57 S. C.
459 67
Walker v. Patillo, 7 Lea (Tenn.)
449 255
Walker v. Richards, 39 N. H.
259 398
Walker v. Sherman, 11 Met. 170 44
Walker v. State, 6 Ala. 350 423
Walker v. Washington Title Ins.
Co., 19 App. D. C. 575 113
Walker v. Waterman, 50 Vt. 107 407
Walker County v. Fidelity & De-
posit Co. of Manford, 107 Fed.
851 337
Wallace v. Jewell, 21 Ohio St.
163 110
Wallace v. Scoles, 6 Ohio 429.. 27
Waller v. German Mercantile
Co. (Civ. App. 1912), 141 S.
W. 883 28, 30
Walmerhausen v. Gullick
(1893), 2 Ch. 514. 202
Walrath v. Thompson, 6 Hill.
(N. Y.) 540. . . 363
Walsh V. Miller, 51 Ohio St. 462. 281
Walsh V. People, 6 111. App. 204 325
Walter v. People, 28 111. App.
645 421
Walters v. Carroll, 9 Yerg. 102. 332
Walters v. Creagh, 4 Stew. &
P. 410 148
Walters v. Swallow, 6 Whart.
(Pa.) 44 122
Walters-Cates v. Wilkinson, 92
Iowa 129 329, 332
554
Table of Cases.
Sec.
Walton V. Mascall, 13 Mees. &
W. 452. . . • ■ • • 122
Wanamaker v. Berne, 3 Penn.
188 348
Wapello Co. v. Bigham, 10 Iowa
39 282, 305
Wapello State Bank v. Colton,
133 Iowa 147. ... 72
Ward V. Chum, 18 Gratt. (Va.)
801 52
Ward V. Colquitt, 62 Ga. 267- •• . 435
Ward V. Hasbrouck, 169 N. Y.
407 381
Ward V. Hasbrouck, 65 N. Y.
Supp. 200 381
Ward V. Hobson, 17 Colo. App.
54 381
Ward V. Joslin, 186 U. S. 142 • . 28
Ward V. Marion County, 26 Tex.
Civ. App. 361 337
Ward V. School Dlst., 10 Neb.
293 317
Ward V. Stahl, 81 N. Y. 406- 277, 311
Ward V. State, III Md. 528 .... 271
Ward V. Stout, 32 111. 399. . . .14, 171
Ward V. Tinkham, 65 Mich. 695 257
Warden v. Ryan, 37 Mo. App. 466 67
100
Ware v. Allen, 128 U. S. 590- •• • 51
Ware v. Stephenson, 10 Leigh.
(Va.) 155 381
Ware v. West, 64 Miss. 545 395
Warner v. Cameron, 64 Mich.
185 226
Warner v. Morrison, 3 Allen
(Mass.) 566 3, 194, 194a, 203
Warren v. Abbott, 65 N. J. L.
99, 46 Atl. 575 382
Warren v. Gilmer, 11 Cush.
(Mass.) 15 411
Warren v. Tobacco Exchange
(Ky.) 55 S. W. 912 78
Warren Bank v. Bank, 10 Cush.
(Mass.) 582 336
Warwick v. State, 5 Ind. 350 • ■ 244
Waseca Co. v. Sheehan, 42 Minn.
57 314
Sic.
Wash V. State, 3 Cold. (Tenn.)
91 437
Washburn v. Blundell, 75 Miss.
266 174
Washington Bank v. Shurtleff, 4
Met. (Mass.) 30 169
Washington Co. v. Ins. Co., 26
Conn. 42 59, 299
Washington Ice Co. v. Webster,
15 Wall. (U. S.) 426 238
Waterbury v. Andrews, 67 Mich.
281 126
Waterman v. Clark, 76 111. 428- • 144
Waterman v. Vose, 43 Me. 504 • ■ 107
Water Power Co. v. Brown, 23
Kan. 676 210
Waters t. Riley, 2 Har. & G.
(Md.) 305 86, 201
Watertown Fire Ins. Co. v. Sim-
mons, 131 Mass. 85.. 127, 143, 288
290, 291
Waterville Bank v. Redington,
52 Me. 466 58
Watkins Medical Co. v. Brand,
143 Ky. 468 348
Watkins v. Sands, 4 111. App. 207 379
Watkins v. Shaw, 2 Gill & J.
220 255
Watriss v. Pierce, 32 N. H. 560 . 2, 3a
Watson V. Whitten, 3 Rich (S.
C.) 224 ...253
Wattles V. Hyde, 9 Conn. 10.. 252
Watts V. Shuttleworth, 7 Hurl.
& N. 353 130
Waughop V. Bartlett, 165 111.
124 90, 128, 167, 172, 192
Waukford v. Wankford, 1 Salk.
299 251
Way V. Lewis, 115 Mass. 26- . ■ 65
Waydell v. Hutchison, 146 App.
Div. (N. Y.) 448 302
Wayne v. Bank, 52 Pa. St. 343 . . 140
287, 288, 291
Way V. Reed, 6 Allen 364 Ill
Way V. Wright, 5 Met. (Ky.) 380 428
Waycross Air Line Co. v. Offer-
man & W. R. Co., 114 Ga. 727 224
Table of Cases.
555
Sec.
Wayland v. Tucker, 4 Gratt.
(Va.) 268 152
Weakley v. Bell, 9 Watts (Pa.)
273 122
Weatherwax v. State, 17 Kan.
427 420
Weaver v. Prebster, 37 Ind. App.
582 114, 119, 121
Weaver v. Shyrock, 6 Serg. &
R. (Pa.) 262 86
Weaver v. Thornton, 63 Ga. 655 265
Weaver v. Wood, 9 Pa. St. 220 • • 341
Webb V. Anspach, 3 Ohio St. 522 311
Webb V. Hewitt, 3 Kay & J. 438 116
Webb V. Pope, 118 Ga. 627 232
Webber v. Webber, 109 Mich.
147 151
Webster v. Cobb, 17 111. 466- •• . 357
Webster v. Fleming, 178 111. 140 11
12, 13, 358
Webster Co. v. Hutchinson, 60
Iowa 721 66, 69
Weddington v. Commonwealth,
79 Ky. 582 434
Weed v. Grant, 30 Conn. 74 362
Weed Sewing Mach. Co. v. Aber-
reicht, 38 Wis. 325 122
Weed Sewing Mach. Co. v. Max-
well, 63 Mo. 486 376
Weeks v. Love, 19 Ala. 25 244
Weeks v. Parsons, 176 Mass. 570 3
389
Weems v. Lathrop, 42 Tex. 207 271
274
Wegner v. Wiltsie, 23 Ohio C. C.
R. 302 264
Wehr V. German Congregation,
47 Md. 177 102
Wehrung v. Denham, 42 Oreg.
386 112a
Weidmeyer v. Landon, 66 Mo.
App. 520 202
Weilage v. Abbott, 3 Neb.
(Unoflf.) 157 381
Weiler v. Henarie, 15 Oreg. 28- • 356
Weir-Booger Dry Goods Co. v.
Kelly, SO Miss. 64 182
Sec
Weir Plow Co. v. Walmsley, 110
Ind. 242 67, 100
Weisel v. Spencer, 59 Wis. 301 . • 392
Weisenborn v. People, 53 111.
App. 32 329
Welch V. Hubschmitt Building &
Woodworking Co., 61 N. J. L.
57 67, 138
Welch V. Keokuk, 128 Wis. 419 113
Welch V. Marwin, 36 Mich. 59.. 398
Welch V. Seymour, 28 Conn. 387 70
305
Wells V. McCoy, 4 Cow. 410 431
Wells V. Miller, 66 N. Y. 255 194
Wells V. United States Fidelity
& Guaranty Co., 160 Mich. 213 441
Wells V. Williams, 39 Barb. (N.
Y.) 567 79
Welsh V. Ebers'ole, 75 Va. 651,
656 339
Welsh V. Schulz, 13 Daly, 132 • ■ 412
Wendlandt v. Sohre, 37 Minn.
162 20
Wendling v. Taylor, 57 Iowa 354 114
Wennall v. Adney, 3 Bos. & P.
247 343
Wesley Church v. Moore, 10 Pa.
St. 273 192
West V. Prison, 99 Mo. 694 147
West V. Colquitt, 71 Ga. 559 426
West V. Grainger, 46 Fla. 257-. 374
West V. O'Hare, 55 Wis. 645 398
Westbrook v. Belton National
Bank, 97 Tex. 246 122
Westbrook v. Moore, 59 Ga. 204 74
Westcott V. Fidelity & Deposit
Co. of Maryland, 87 App. Div.
(N. Y.) 497 74
Western, etc., Ins. Co. v. Clin-
ton, 66 N. Y. 326 287
Westervelt v. Mohrenstecker, 76
Fed. 118 70, 71
Westfall V. Parsons, 16 Barb.
(N. Y.) 645 374
West Hunterville Cotton Mills
Co. V. Alter, 164 Ala. 305, 51
So. 338 193
656
Table of Cases.
Sec.
Westmoreland v. Porter, 75 Ala.
452 374, 377, 392, 396
Weston V. Barton, 4 Taunt. 673 84
Weston V. Chamberlin, 7 Cush.
(Mass.) 404 210
Wetherby v. Mann, 11 Johns.
(N. Y.) 518 195
Wetzel V. Sponsler, 18 Pa. St.
460 146
Wetzell V. Waters, 18 Mo. 396 • • 219
231
Whaley v. Commonwealth
110 Ky. 154, 61 S. W. 35 323
Wheeler v. Lewis, 11 Vt. 265 359
Wheeler v. Mayfield, 31 Tex. 395 340
Wheeler v. Rohrer, 21 Ind. App.
477 m
Wheeler v. State, 39 Kan. 163.. 424
Wheeler v. State, 38 Tex. 173.- 426
Wheeler v. Traders' Deposit
Bank, 107 Ky. 653 78, 125
Wheeler v. Werner, 140 App.
Div. (N. Y.) 695 93a
Wheeling v. Black, 25 W. Va.
266 318
Whelen v. Boyd, 114 Pa. St. 228 66
100, 103
Whereatt v. Ellis, 103 Wis. 348 74
94, 183
Whigham t. Hall & Co., 8 Ga.
App. 509 101
Whipf) V. Casey, 21 R. I. 506, 45
Atl. 93 298
Whipple V. People, 40 111. App.
301 403
Whitaker v. Kirby, 54 Ga. 277- . 51
147, 148
Whitbeck v. Ramsey, 74 111.
App. 524 152, 176, 187
Whitcomb v. Whiting, 2 Doug.
652 371
White V. Boone, 71 Fed. 712 ... . 21
White V. Colton, 53 Ind. 372- . - • 8
White V. Coventry, 29 Barb. (N.
Y.) 305 61
White V. Ditson, 140 Mass. 351 244
255
Sec.
White V. Dtiggan, 140 Mass. 18 51
56
White V. East Saginaw, 43 Mich.
587 310, 312
White V. Fox, 22 Me. 341 313
White V. French, 15 Gray
(Mass.) 339 230
White V. Guest, 6 Blackf. (Ind.)
228 412
White V. Miller, 47 111. 385- 175, 180
195
White V. Moe, 19 Ohio St. 37. . • ■ 253
White V. Prigmore, 29 Ark. 208 227
White V. Reed, 15 Conn. 457 356
White V. Shepherd. 140 Ky. 349 107
White V. Walker, 31 111. 422. .. . Ill
White V. Weatherbee, 126 Mass.
450 60
Whiteaker v. State, 31 Okla. 65 437
Whitehead v. Woolfolk, 3 La.
Ann. 43 321
Whitehouse v. Glass, 7 Grant.
Ch 47 183
Whitehouse v. Hanson, 42 N. H.
9 5, 194
Whitehurst v. Hyman, 90 N. C.
487 377
Whiteman v. Harriman, 85 Ind.
49 208
White Sewing Mach. Co. v.
Courtney, 141 Cal. 674 87, 367
White Sewing Mach. Co. v.
Hines, 61 Mich. 423 79, 83
White Sewing Machine Co. v.
Saxon, 121 Ala. 399 51
Whitestown, Town of v. Title
Guaranty & Surety Co., 72
Misc. R. (N. Y.) 498. 302, 442, 443
Whitford v. Laidler, 94 N. Y.
145 51
Whitlock T. Doolittle, 18 Vt. 44 90
Whitmer v. Frye, 10 Mo. 348 107
Whitmore v. Adams, 17 Iowa 567 26
Whitworth v. Carter, 43 Miss.
61 92
Whitworth v. Pillman, 40 Miss.
76 183
Table of Cases.
557
Sec.
Whitney v. Groat, 24 Wend. (N.
Y.) 81 355
Whitney v. Hale, 67 N. H. 385- • 14
Whittier v. Gould, 8 Watts 485 20
Whittier v. Hemingway, 22 Me.
238 163
Wickham v. Wickham, 2 Kay &
J. 478 394
Widener v. State, 45 Ind. 244... 334
Wiehler v. People, 68 111. App.
282 324
Wiggins V. Tyson, 112 Ga. 744 • . 421
Wiggins V. WellS', 2 Sneed
(Tenn.) 154 240
Wiggin's Appeal, 100 Pa. St. 155 92
Wight V. Keyes, 103 Pa. St. 567 213
Wild V. Home, 74 Mo. 551 115
Wildcat Branch v. Ball, 45 Ind.
213 54
Wilde V. Baker, 14 Allen (Mass.)
349 274
Wilde V. Dudlow, L. R 19 Eq.
Gas. 198 383
Wildes V. Savage, 1 Story (U.
S.) 22 45
Wiley V. Bank, 47 Vt. 546 29
Wiley V. Moor, 17 Serg. & R. 292 52
Wilhelm v. Voss, 178 Mich. 106 391
Wilkinson v. Conley, 133 Ga.
518 93a, 133
Wilkinson v. Herd, 65 Mo. App.
491 32
Wilks V. Adcock, 8 Term R. 27- ■ 217
Williams v. Auten, 62 Neb. 832 374
398
Williams v. Bank, 11 Md. 242-. 174
Williams v. Bedford Bank, 63
App. Div. (N. Y.) 278 381
Williams v. Boyd, 78 Ind. 286-. 21
Williams v. Candler, 119 Ga. 179 431
Williams v. Glenn, 92 N. C. 253 210
Williams v. Gooch, 73 111. App.
557 117
Williams v. Harrison, 19 Ala.
277 303
Williams v. J©nson, 75 Mo. 681 114
Sec.
Williams v. Kennedy, 134 Ga.
339, 67 S. E. 821 128
Williams v. Marshall, 42 Barb.
(N. Y.) 524 54
Williams v. Morehouse, 9 Conn.
470 252
Williams v. Morris (Ark. 1911),
138 S. W. 464 51, 126
Williams v. Morton, 38 Me. 52- • 310
Williams' v. Nichols, 10 Gray.
(Mass.) 83 191
Williams v. Ogg & Keith Lum-
ber Co., 42 Tex. Civ. App. 558 134
144a
Williams v. Parks, 63 Neb. 747,
89 N. W. 395 301, 336
Williams v. Perkins, 21 Ark. 18 35
40, 341
Williams v. Rees, 15 Ohio 572 •• 211
Williams v. Riehl, 127 Cal. 365.194a
Williams v. Shelby, 2 Greg. 144 431
Williams v. State, 55 Ala. 71 423
Williams' v. State, 89 Ind. 570- • 260
Williams v. Williams, 5 Ohio 444 176
192
Williamson v. Goodman, 73 Me.
163 60
Williamson v. Hill, 3 Mackey
100 377, 396
Williamson v. Woodman, 73 Me.
163 59, 266
Williams-Thompson Co. v. Wil-
liams (Ga. App. 1912), 73 S. E.
409 114
Willingham v. Ohio Val. Bank-
ing & Trust Co., 22 Ky. Law-
Rep. 158 152, 157
Willington v. Apthorp, 145 Mass.
69 341
Willis V. Chowning, 90 Tex. 617 172
173
Willis V. Commonwealth, 85 Ky.
68 421
Willis V. Crooker, 1 Pick.
(Mass.) 204 2?7, 411
Willis V. Fields, 132 Ga. 242 129
558
Table of Cases.
Sec.
Willmington, etc., R. R. Co. v.
Long, 18 S. C. 116 288, 293
Willoughby v. Fidelity & De-
posit Co. of Maryland, 16
Okla. 546 287, 287a
Willoughby v. Irish, 35 Minn. 63 90
Wills V. Cooper, 2 Ohio St. 324 245
Wills V. Dill, 6 Martin (La.) 665 54
Wills V. Evans, 18 Ky. Law Rep.
1067 24
Wills V. Hurst, 101 Tenn. 656-. 122
Wills V. Ross, 77 Ind. 1....356, 398
Wills V. Shinn, 42 N. J. L. 138- • 389
Wilson V. Bevans, 58 111. 232.. 341
384, 397
Wilson V. Burney, 8 Neb. 39 152
Wilson V. Carrico, 50 W. Va. 336 174
Wilson V. Crawford, 47 Iowa 469 174
176, 211
Wilson V. Fort, 11 Mete. (Mass.)
285 113, 120, 171
Wilson V. Hentges, 29 Minn. 102 390
Wilson V. Kieffer, 141 Mo. App.
137 194
Wilson V. Land Security Co., 26
Can. Sup. Ct. 149 11
Wilson V. Monticello, 85 Ind. 10 61
Wilson V. People, 10 111. App.
357 424
Wilson V. Phillips, 27 Tex. 543 152
Wilson V. Powers, 130 Mass. 427 49
Wilson V. Stanton, 6 Blackf.
(Ind.) 507 206
Wilson V. State, 67 Kan. 44, 72
Pac. 517 301, 311
Wilson V. State, 1 Lea (Tenn.)
316 320
Wilson V. Stilwell, 9 Ohio St. 470 182
Wilson V. Tebbetts, 29 Ark. 579 145
Wilson V. Webber, 157 N. Y. 693 112
113
Wilson V. Whitmore, 92 Hun (N.
Y.) 466 67, 112, 113
Wilson V. Wichita Co., 67 Tex.
647 317
Wimberly v. Windham, 104 Ala.
409 5
Sec-
Winang v. Cable, etc., Co., 48
Kan. 777 342
Winchell v. Hicks, 18 N. Y. 558 90
Windell v. Hudson, 102 Ind. 521 395
Windmiller v. Standard Distil-
ling Co., 186 N. Y. 572 28
Windmiller v. Standard Distil-
ling & Distributing Co., 106 App.
Div. (N. Y.) 246 28
Wingate v. Wilson, 33 Ind. 78.. 228
238
Winn V. Sanford, 145 Mass. 302 92
376
Winne v. Nuhrbach, 140 App.
Div. (N. Y.) 329 374
Winnebago County Statei Bank
V. Hustel, 119 Iowa 115 113a
Winninger v. State, 23 Ind. 228 411
431
Winship v. Bass, 12 Mass. 198.. 251
252
Winterfield v. Cream Brewing
Co.. 96 Wis. 239 30
Winter, Jr., & Co. v. Forrest, 145
Ky. 581 141
Winthrop, Inhabitants of v.
Soule, 175 Mass. 400, 56 N. E.
575 290
Wipperman v. Hardy, 17 Ind.
App. 142 36
Wise V. Miller, 45 Ohio St. 388 2
348
Wise V. Shepherd, 13 111. 41 145
Wise Coal Co. v. Columbia J. & L.
Co., 138 S. W. 67 216
Witherby v. Mann, 11 Johns. (N.
Y.) 518 180
Withrow v. Commonwealth, 1
Bush. 17 429
Witkowski v. Hern, 82 Cal. 604 325
Witt V. Aurarillo National Bank
(Tex. Civ. App. 1911), 135 S.
W. 1108 11
Wittmer v. Ellison, 72 111. 301.. 115
117
Wittmer Lumber Co. v. Rice, 23
Ind. App. 586 30
Table of Cases.
559
Sec.
Wize V. Washburn, 8 Ga. App.
408 385
Wofford V. Unger, 55 Tex. 480-. 371
Wolf V. Driggs, 44 N. J. Eq. 363 50
Wolf V. Madden, 82 Iowa 114-51, 147
Wolf V. Stover, 107 Pa. St. 206- ■ 207
Woltboro Loan «6; Banking Co.
V. Rollins, 195 Mass. 323 144a
Wolfe V. State, 59 Miss. 338 264
Wolfe & Sons v. McKeon (Ala.
1911), 57 So. 63 25
Wolff V. Koppel, 5 Hill 458 394
Wollenberg v. Sykes, 49 Oreg.
163 51
Wolmershausen v. Gullick
(1893), 2 Ch. 514 211
Wood V. Atlantic & N. C. R. Co.,
131 N. C. 48 374, 391
Wood V. Farnell, 50 Ala. 546-. 320
Wood V. Fish, 63 N. Y. 245-. 74, 226
Wood V. Leland, 1 Mete. (Mass.)
387 173, 211
Wood V. Newkirk, 15 Ohio St.
295 46
Wood V. Patch, 11 R. I. 445 398
Wood V. School Dist., 10 Neb.
293 316
Wood V. Squires, 28 Mo. 397.. 217
Wood V. Steele, 6 Wall. (U. S.)
80 55, 103, 104, 107
Wood V. Tunnicliff, 74 N. Y. 38 342
Woodman v. Calkins, 13 Mont.
363 54
Woods V. Bank, 85 Pa. St. 57. . • 154
Woods V. Sherman, 71 Pa. St.
100 4, 348
Woodworth v. Bank, 10 Johns.
(N. Y.) 420 108
Wooley V. Moore, 61 N. J. L.
16 357
Woolfolk V. Plant, 46 Ga. 422.. 119
Woolley V. Cobb, 1 Burr 244 408
Woolley V. Price, 8 Md. 176 • . 255
Woolley V. Van Valkenburgh, 16
Kan. 20 76
Woonsocket Rubber Co. v. Bani-
gan, 21 R. I. 546, 42 Atl. 512. . 358
Sec.
Worcester Sav, Bank v. Hill, 113
Mass. 25 341
Worgang v. Clipp, 21 Ind. 119 . . 253
261
Work Bros. v. Kinney, 8 Ida.
771, 71 Pac. 477 302
Work of the World v. United
States Fidelity & Guaranty
Co., 152 111. App. 223 69
Worrall v. Munn, 1 Seld. 229 ... • 50
Worrell v. Forsyth, 141 111. 42 19
Worsham v. Stevens, 66 Tex. 89 183
Worthington v. Gay, 7 Sm. & M.
522 119
Worthington v. Whitefield (Tex.
Civ. App.), 142 S. W. 23 183
Wray v. People, 70 111. 664 434
Wright V. Butler, 6 Wend. (N.
Y.) 284 176
Wright V. Dyer, 48 Md. 525 349
Wright V. German Brewing Co.,
103 Md. 377 141
Wright V. Griffith, 121 Ind. 478 4
348, 355
Wright V. Johnson, 8 Wend. (N.
Y.) 512 362
Wright V. Jones, 55 Tex. Civ.
App. 616, 120 S. W. 1139 112
Wright V. Long, 66 Ala. 389 251
Wright V. Morley, 11 Ves. 12, 22 12
151
Wright V. Schmidt, 47 Iowa 233 27
Wright V. Simpson, 6 Ves. 714 290
Wright V. Smith, 47 Iowa 233 . . 27
Wright Steam Engine Works v.
McAdams, 113 App. Div. (N.
Y.) 872 100
Wussow V. Hase, 108 Wis. 382 69
Wyatt V. Hodson, 8 Bing. 309.. 371
Wyke V. Rogers, 1 De Gex M. &
G. 408 116
Wyman v. Goodrich, 26 Wis. 21 390
Wyman v. Jones, 58 Mo. App.
313 5
Wyman v. Robinson, 73 Me. 384 74
269
Wyman v. Yoemans, 84 111. 403 105
560
Table of Cases.
Sec
Wynn v. Brooke, 5 Rawle (Pa.)
106 183
Wyson V. Meyer, 58 App. Div.
(N. Y.) 422 11
Y.
Yager v. Kentucky Title Co., 23
Ky. Law Rep. 2240 360
Yale V. Edgerton, 14 Minn. 194 397
Tales V. Wheelock, 109 Mass.
502 92
Yallop V. Ebers, 1 Bam. & Ad.
703 15
Yancey v. Brown, 3 Sneed 89 ■ ■ 355
Yarborough v. Commonwealth,
89 Ky. 151 414, 429
Yates V. Donaldson, 5 Md. 389 171
Yates, Ex parte, 2 DeG. & J. 191 110
Yeager, In re, 10 Daly (N. Y.) 7 281
Yeoman v. MuUer, 33 Mo. App.
438 381
Yerxa v. Ruthruff, 19 N. D. 13 . . 134
Y. M. C. A. of North Yakima v.
Gibson, 58 Wash. 307, 108 Pac.
766 112d
Yndo V. Rivas (Tex. Civ. App.),
142 S. W. 920 178, 180, 192
York Co. V. Watson, 15 S. C. 1 317
York County Ins. Co. v. Brooks,
51 Mo. 506 57, 315
Yorkshire, etc., Ins. Co. v.
Maclure, 19 Ch. Div. 478 382
Yost V. State, 80 Ind. 330 263
Sec.
Young V. American Bonding
City of Baltimore, 228 Pa. St.
373 100, 442, 443
Young V. French, 35 Wis. 111.. 381
392
Young V. McFadden, 125 Ind. 254 2
Young V. Morgan, 89 111. 199.. 155
Young People, 35 111. App. 363 244
Young V. Shunt, 30 Minn. 503.. 3
203
Yount V. Carney, 91 Iowa 559-. 326
Yule V. Bishop, 133 Cal. 574- •• • 178
Yung's, In re. Estate, 199 Pa.
St. 35 243
Z.
Zabriskie v. Railroad Co., 23
How. (U. S.) 397 28, 365
Zang V. Hubbard Building &
Realty Co. (Civ. App. 1910),
125 S. W. 85 100, 112a
Ziegler v. Commonwealth, 12
Pa. St. 227 333
Ziegler v. Hallahan, 126 Fed. 788 111
Zimmerman v. Chelsea Savings
Bank, 161 Mich. 691. 704 67a
Zollickoffer v. Seth, 44 Md. 359 201
Zuellig V. Hemerlie, 60 Ohio St.
27 192
Zuendt v. Doerner, 101 Mo. App.
528 35
Zurfluk V. Smith, 135 Cal. 644.. 263
265
INDEX.
[References are to Sections.]
A.
Seo.
ABSENCE,
of principal from State — effect on surety's liability 91
ACCEPTANCE,
of mortgagee to malce purchaser principal 13
of draft as principal 15
of offer to forbear necessary 44
of offer to pay debt of another — when necessary 45
by architect — building contract 112f
of new note^ — effect on surety 122
of obligee, knowing of conditions 129
promise must be accepted to be binding 341
of guaranty — when necessary 848
when necessary — continuing guaranty 355
ACCEPTOR,
of a bill is the principal 15, 16
ACCOMMODATION INDORSER,
relation of 14
corporation as n, 30
pledging of note 87
remedies of 183
rights to purchase the note 186
right of contribution 206
ACCORD AND SATISFACTION,
payment of judgment by one co-surety not accord and satis-
faction 194
by principal 295
ACCOUNTING,
administrator not accounting for his debt to the estate • • • -251, 252
failure of administrator or executor to account 256
by surety of deceased guardian 259
of guardian 261
of guardian — discharge of surety 263
of guardian with ward after reaching majority 265
liability of sureties on receiver's bond 271
by assignee — discharge of sureties 280
officer failing to account 292
(561)
562 Index.
ACKNOWLEDGMENT, Sec.
false certificate of, by clerk 333
false acknowledgment by ustice of peace 334
certifying by notary public — grantor being absent 336
certifying, without reading 336
of barred debt, as to guarantor 371
ACTION.
against surety and principal 1
by mortgagee against purchaser of mortgaged premises 12
of surety against principal who has not signed the bond 52
on bond — surety denying court's jurisdiction 62
legal proceedings — order of liability of sureties 73
covenant not to sue 120, 121
failure of creditor to sue principal 134
set-off and recoupment 144
compelling creditor to bring suit 145
compelling creditor to resort to collaterals 14&
right of surety to defend 150
successive sureties in appeal 168
surety's defense 170
by creditors 171
against principal by surety 176
what action the surety may bring against the principal 178
when surety's right is complete 182
when surety can plead usury 185
what amount can be collected from principal by surety 186
joint suit by sureties 187
how much surety can recover from principal 188
payment by surety — principal not being liable 190
relief of surety in equity 193
right of surety to compel contribution 194
enforcement of contribution at law 196
enforcement of contribution in equity 197
liability to contribute is several 200
by co-surety before payment of debt 202
of co-sureties under different instruments 203
may compel contribution — co-sureties 20S
defense of surety 224
action for damages by officer 230
when suit may be brought for breach of injunction bond 233
when action lies against executor or administrator 242
bring action by joint executor 24^
when arises against surety on administrator's bond 258
when arises against surety on guardian's bond 264
right of, against sureties on receiver's bond 272*
summary action against surety on receiver's bond 272
covenant not to sue 294
Index. 563
ACTION— Continued. Sec.
on officer's bond 298
bond of public officers — who may sue on n, 301
bond of clerk of court — who may sue n, 329
condition precedent — suit against clerk 331
when demand is necessary before bringing suit — tax collector- ■ 337
by assignee of guaranty 357
by assignee of guaranty under seal 358
guaranty of collection — when suit must be brought 359
guaranty of forged signature — rights of action 371
payment of verbal guarantee — effect 372
ACT OF GOD,
accounting for public funds n, 301
discharge of bail 412
exoneration of bail by 428
ADMINISTRATORS,
see " Executors and Administrators."
AFFIRMATION,
of infant's contract 24
of insane person's contract 25
of ultra vires contract 30
of attachment judgment — liability of surety 224
of judgment by agreement 228
AGENT,
of surety company — statute as to 438
of surety companies — law relating to insurance agents ap-
plicable 444
of surety companies — apparent scope of authority 446
of surety companies with written authority 447
see " Private Officers and Agents."
ALLOWANCES,
by administrator to intestate's family 250
ALTERATIONS,
of note or bond after execution — effect 55
of principal's contract 100, 101
of instrument — effect 102
material alterations 103
of commercial paper 104
of date of instrument 105
of amount of instrument 106
of the rate of interest 107
564 Index.
ALTERATIONS— Continued. Sec.
changing the place of payment 108
destroying the identity of the contract 109
addition of a surety to a note 110
changing the contract of a lease Ill
surety in building contract released by 112a
where change authorized — building contract 112b
permissive and immaterial — building contract 112c
of note — payment by surety — right to contribution 194
of principal contract — discharge of guarantor 362
bonds of private officers and agents 297a
obligation of bail 427
AMBIGUITIES,
rule as to n, 67
AMENDMENT,
of attachment proceedings 217
discharging bail 411
AMOUNT,
alteration of — effect 106
what surety can collect from principal 186, 196
oo-surety paying less than face value — effect 198
co-surety may limit liability 205
increase of, in appeal — liability of sureties 227
liability of surety on official bond 327
when limited in guaranty 354
in letters of credit 355
see " Liability."
APPEALS,
bond signed by partner n, 26
bond by corporation n, 28
act of legislature releasing sureties n, 72
bond strictly construed n, 224
satisfaction of judgment — liability of surety 224
to special court — change 225
liability of sureties — joint or several 226
judgment varied on appeal 228
successive appeal 229
by surety on assignee's bond 278
duty of clerks of court 333
bail on — criminal cases 422
in case of forfeiture 436
APPEARANCE,
of principal — liability of bail 423
after forfeiture of bail bond 435
voluntary, of principal — costs' 435
Index. 565
APPLICATION, Sec.
for bond and bond construed together 287a, 445
to set aside forfeiture of bail bond 434
APPLICATION OF PAYMENTS,
general rule 97
by law 98
of debtor's deposits 99
guaranty 361
APPOINTMENT,
denying valid appointment of principal by Burety^ffect 60
of executor who owes the estate 251, 252
of agent of corporation — duration of liability 282
APPORTIONMENT,
of debt among solvent sureties 196
see " Contribution — Co-sureties."
ARBITRATION,
payment of amount — right to contribution 194
without surety's consent 241
discharge of bail 411
ARCHITECT,
certificate of — building contracts 112d, 112f
ARRESTS,
in civil action — bail 404
by bail of their principal 414
illegal — liability of bail 424
of principal on different charge 426
after forfeiture of bail bond 435
see " Bail in Civil Actions — Bail in Criminal Actions."
ASSIGNEE,
liability of surety on assignee's bond 277
estoppel of surety by judgment against assignee 278
giving new bond 279
default of 280
discharge of surety 281
misconduct as 326
of guaranty 357
of guaranteed notes 364
converting assignor's property into money to pay debt 379
of promissory note 390
566 Index.
ASSIGNMENT, Sec.
of lease — effect on surety Ill
of principal — rights of surety who owes principal 162
of note to surety after payment 178
declared void — effect on surety 280
of guaranty 357
of guarantied paper 365
of promissory note 390
ASSUMPSIT,
by surety against principal . . 178
right of co-surety to bring , •• . . 195
on contracts under seal. . 358
ASSUMPTION,
of mortgaged debt by purchaser — rights of mortgagee 12
of partnership debts by one partner after dissolution 20
of liability by guarantor 382
ATTACHMENT.
of property of debtor by creditor — effect 131
discharge of surety by dissolution of 213
exoneration of surety on attachment bond 214
non-suit in, effect on surety - 215
lien being discharged — bankruptcy of principal 216
power to amend proceedings in attachment suit 217
bringing in new parties defendants. 218
trespass by officer. . . 219
delivery bond — rights of surety as to property 220
void bond in 221
damages in 222
when surety is concluded. . 223
appeal bond — discharge of surety. . 224
neglect of officer. . . . 325
wrongfully issued by justice 334
ATTORNEY FEES,
when surety may collect against principal 183
right of so-surety to collect 196
co-surety may incur 200
in attachment — liability of surety 224
ATTORNEYS-AT-LAW,
becoming surety for their clients 27
no authority to grant extension n, 113
Index. 667.
B.
BAIL, Sec.
are sureties with same liabilities ,•• 73
definition of. .. . 402
distinction as to mainpernors. 403
arrest in civil actions 404
obligation of. . . •• 405
when entitled to costs 406
BAIL IN CIVIL ACTIONS,
arrests — bail 404
obligation of 405
rights of 406
subrogation of bail. . 406
extent of liability. . 407
discharge of principal in bankruptcy or insolvency 408
payment by imprisonment of the principal 409
different sets of bail. . 410
exoneration of. . . 411
exoneration of performance of condition 412
BAIL IN CRIMINAL ACTIONS,
principal in custody of bail 413
rights and liability of bail 414
implied contract of indemnity 415
express contract of indemnity to bail 416
extent of bail's liability. 417
costs. . . . . 418
joint and several liability of bail 419
effect of pardon. . 420
delivery of principal by bail 421
on appeal — liability 422
appearance of principal. . . 423
re-arresting principal on the same charge 424
giving a new bond. . 425
arresting principal on different charge ' 426
bail are released by a change of their obligations 427
exoneration of bail by act of God 428
exoneration of bail by act of law 429
exoneration by act of obligee 430
exoneration of sureties in general 431
subrogation in criminal actions 432
effect of forfeiture of bond 433
setting aside forfeiture 434
voluntary appearance or arrest after forfeiture — costs 435
effect of remission of forfeiture 436
taking money in lieu of bail 437
568 Index,
BAILMENT, Seo.
responsibility of officer for money not determined by rules of • • 316
BANK DEPOSITS,
application of debtor's deposits. 99
illegal deposits by public officer 301
by public officer — liability. . . 317
making profit on, by officer 318
guaranty of — illegal 351
BANK MESSENGER,
liability of his sureties. 285
BANKRUPTCY,
of debtor — effect on surety. 131
of co-surety — liability to contribute. 212
of principal in attachment — effect 216
attachment — discharge of principal 224
discharge of principal — rights of bail 408
see " Insolvency."
BANKS,
see " National Banks."
BILLS AND NOTES,
execution of new note 8
made payable to maker— rights of indorser 17
joint and several notes — liability of makers 22
given by corporations 28
indorsement of, before and after execution 36
surrendering old note for new 37
consideration for extension of time of payment 43
extension of time of payment — consideration 46, 47, 48
alteration of — effect. . . 55
filling blanks in. . 57
guaranty may cover note given on pre-existing debt 69
transfer of guarantied. . 82
pledging accommodation note. . 87
part payment by joint debtor— revival of debt- • 90
conflict of laws. . ^^
payment of— effect on surety 94
liability of payment. . 96
application of payments. . 98, 99
alteration of. . . 104
change of date. . . 105
changing amount. . . 106
Index. 569
BILLS AND 'i^OTES— Continued. Sec.
change of the rate of interest 107
changing place of payment 108
changing identity of note 109
addition of surety to a note 110
partial payment of, as consideration for extension of time 114
payable in the future — extension of time — rights of surety ••.. 116
certainty of extension of time 119
what is a promise to extend time of payment 121
acceptance of new note by creditor — effect on surety 122
taking as collateral security — effect on surety 123
taking judgment against one of several makers 124
fraud in the extension of time — effect on surety 125
when note must be presented to the administrator or executor- • 128
disaffirmance by infant — return of consideration 135
payment of — subrogation of surety 154
payment by surety of a surety 165
payment by one joint debtor 166
surety voluntarily paying. . 177
payment by surety — assignment 178
taken by creditor from one partner 179
payment by surety's note. . 180
payment by accommodation indorser. 186
alteration of — payment and contribution 194
payment by note — right to contribution 195
payment by co-surety — right to contribution 196
purchasing note of principal by one co-surety at a discount —
effect 198
contribution of surety of a surety for payment 199
substitution of new note — right to contribute 204
j rights of accommodation indorsers 206
parol evidence to identify surety 210
parties to — legal effect of indorsement 210
giving note by administrator 246
accord and satisfaction of officer by giving his note . 295
left in hands of justice of the peace 334
holder of — notary's certificate 336
bank receiving — selecting notary to protest — liability 336
indorsement before and after delivery 347
guaranty of — illegal. . . - • 351
guaranty of — negotiability. . . 357
guaranty of collection. . . 359
changing debt into notes — effect on guarantor 362
assignee's rights 364
guaranty of — one signature forged. 366
executing and indorsing for third party — statute of frauds 389
assignment of 390
570 Index.
BLANKS, Sec.
a blank piece of paper signed as a bond — effect 52
filling of 56
filling blanks in notes 57
bond signed in blank by surety 298
signing note in blank 347
BONDS,
successive bonds 9
of public officer — national bank as surety 29
delivery in escrow 50
surety signing on condition 51
not signed by principal. . 52
surety 's name not in the body of the bond 53
principal's name in body of the bond, but not subscribed 54
alteration of — effect 55
filling blanks of — surety's liability 56
surety estopped by recitals in 59
estopped to deny validity of 62
attacking of, in collateral proceedings 63
where contract made part of 67a
liability of surety — term 70, 71
surety liable only for penalty. 74
measure of surety's liability 75
death of surety — effect. . 85
contractor's bonds 112, 113
taking second bond as collateral security — effect on surety 123
right of contribution on successive bonds 203
liability of surety on successive bonds 209
attachment bonds — formality. . . 213
exoneration of surety on attachment bond 214
non-suit in attachment — effect on surety 215
redelivery bond — bankruptcy of principal. 216
amendment of proceedings. . 217
bringing in new parties 218
liability of surety for trespass of officer 219
different bonds — right of surety as to attached property 220
void bond in attachment 221
damages on breach of 222
judgment on the bond — liability of surety 223
appeal bonds — discharge of sureties 224
appeal bond — judgment affirmed in another court 225
change of issue on appeal 226
Increase of claim on appeal 227
agreement of litigants 228
successive appeal bonds. . 229
provision for indemnity 230
Index. 571
BONDS — Continued. Sec.
liability on indemnity bonds 231
injunction bonds — liability of surety 232
suit on injunction bond. 233
injunction bonds — liability of surety. 234
what law governs injunction bond 235
liability of surety on replevin bond 238
breach of replevin bond — discontinuance of suit 239
varying the terms in replevin 241
when suit lies on executor's or administrator's bond 242
administrator's bond — income from real estate 244
liability of surety on extra-territorial acts of principal 245
surety liable only for official acts 246
giving new bond. . . 247
liability of discharge surety. 248
sureties on joint bonds 249
allowance to intestate's widow by administrator — liability of
surety 250
surety's general liability on administrator's bond 253
liability of surety — different bonds 254
principal acting in official capacity 255
failure of administrator to return inventory • 256
release of surety on administrator's bond 257
when right of action accrues on administrator's bond 258
general liability of guardian's sureties 259
giving additional bond by guardian 260
guardian selling real estate — giving new bond 261
discharge of surety — guardian's bond 262
termination of surety's liability — guardian's bond 263
when action can be brought on guardian's bond 264
judgment on guardian's bond — estoppel of surety 265
estoppel of surety by recitals 266
liability of joint guardians 267
joint bond of guardians. . 268
extent of surety's liability on guardian's bond 269
recovery against surety. . 270
liability of sureties on receiver's 271
right of action against sureties on receiver's bond 272
of receiver, for future acts 273
of surety on receiver's bond for funds 274
new bonds — liability of surety. 275
surety's liability on receiver's bond 276
liability of surety on assignee's bond 277
extent of surety's liability on assignee's bond 278
assignee giving new bond. 279
default of assignee 280
discharge of surety 281
572 Index.
BONDS— Continued. Sbxj.
duration of surety's liability on private official bonds 282
continuing liability of surety on private official bonds 283
restricting surety's liability by recitals in bond 284
construction, as to surety. 285
surety cannot be bound beyond his contract 286
discharge of surety by fraud 287
application for construed together 287a, 445
covering prior and subsequent defaults 288
principal his own successor. 28»
continuing principal in office after known defaults 290
delinquent obligee 291
failure to discharge delinquent. 292
failure to notify surety of default 293
covenant not to sue on 294
accord and satisfaction . 295
notice of surety's withdrawal 296
surety discharged by acts of obligee 297
action on the bond. . 298
sureties concluded by recitals in officer's bond 299
surety's liability for loss of money by officer 300
liability of surety on official 301
liability of surety on prior defaults 302
presumption as to sureties on second bond 303
de facto official bonds. 304
officer holding over 305
death of officer. . . 306
money used to cover previous delinquencies 307
giving second bond in same term. 308
giving bond without statutory authority 309
general and special bonds 310
liable for official acts 311
subsequently imposed duties 312
subsequently imposed duties by the legislature 313
the State is not responsible for its officers 314
forgery of prior surety's name 315
money lost by principal ^ 316
depositing public money in bank 317
making profits on public funds 318
interest recovered after breach 319
surety's liability for penalty . 320
estoppel by judgment against officer. 321
of sheriffs and constable. 322
scope of liability — constables. . 323
levy on wrong property 324
officer's liability — ministerial duties. . 325
officer's duty to State and to persons 326
Index. 573
BONDS — Continued. Sec.
limit of surety's liability. 327
liability of surety after term expires 328
sureties' liability on bonds of clerks 329
compensation of clerk. . 330
failure of clerk to pay over 331
money paid into court 332
delinquencies of clerks. . 333
sureties of justice of the peace 334
sureties of police officer. 335
sureties of notary public. 336
of tax collector. . 337
subrogation under. . . 338
assignability of 357
not in form — common law bond. 405
definition of bail bond. 407
extent of bail's liability. 417
giving new bond — liability of bail 425
of foreign company need not state authority to do business- • • • 438
BOOKKEEPER,
sureties for released n, 72
using the bank's money 285
BREWERY COMPANY,
as surety or guarantor 30
BROKER,
in del credere 394
arrest of — bail 404
BUILDING CONTRACTS,
liability of surety. . . 112
consideration of 112
surety changed by release of 112a
where change authorized. . 112b
permissive and immaterial variations. 112c
payment — certificate of architect or other person 112d
payment generally. . . . 112e
acceptance by architect — certificate. . 112f
extension of time — effect. . . 113
items of credit n, 186
for school building — injunction against n, 232
surety company released by change in 442
574 Index.
BURDEN OF PROOF, Sec.
authority of partner n, 26
act ultra vires 30
that one signed as surety n, 171
extension of time. . 113b
why money not turned over to successor in ofiBce n30l
C.
CASHIER,
duration of liability on bond of 71, 72
transcending his powers — effect as to sureties' liability 285
of bank — bond of n, 28
increase of capital stock of bank — surety's liability 286
joint action against cashier and sureties 298
controlled by recitals in bond 29&
CERTIFICATE,
of architect or other person — building contracts 112d, 112f
CHANGE IN CONTRACT,
see "Alterations; Contract."
CHARTER,
extending charter of bank — effect on surety's liability 72
forfeiture of— liability of surety. 29T
CITY CLERK'S BOND,
what covered by nSOl
CLERK,
of county — unofficial actB>— liability. . 320
bond of — surety's liability. . ., 329
employment guarantied = 345
compensation of. . . 330
failure to pay over to successor 331
money paid into court. . 332
delinquencies of 333
CO-GUARANTOR,
release of 369
payment by one co-guarantor 372
COLLATERAL PROCEEDINGS,
attacking bonds 63
Index. 575>
COLLATERAL SECURITY, Sec.
taking collateral security by creditor — effect on surety 123
surety entitled to. . . 130
creditor must collect 132
substitution of. . . 137
when creditor must resort to collaterals 14^
in hands of surety — application 189
COLLATERAL UNDERTAKING,
of surety or guarantor 41
of principal — effect 104
by contractor and principal 113
COLLECTION,
guaranty of. . . 359
due diligence of guarantee 360
COLLECTOR,
sureties for released <. n, 72
misappropriation of taxes = 307
special and general bond 312
extending time to pay taxes to 313
liability of sureties 337
employment guarantied 345
COLLECTOR OF INTERNAL REVENUE,
liability on bond of » n, 30
COMMERCIAL PAPER,
see " Bills and Notes."
COMMMISSION,
securing of as consideration for guaranty 377
COMPENSATION,
of clerk — excess 330^
CONCEALMENT, ~'
of facts 140
diligence of surety 141
facts not connected with the contract 142
facts developed subsequent to the contract 1 43
of obligee — effect on surety. 287
of principal's prior defaults. 388
when negligence amounts to. 191
failure to notify surety of default 293
see " Fraud."
576 Index.
CONCURRENT CONTRACTS, Sec.
indorsing note before and after execution 36
to bind the surety. 39
see " Contracts."
CONDITION,
delivery in escrow. . 50
wrongful delivery by principal. 51
surety signing upon 129
CONDITIONAL DELIVERY,
of instrument 50, 51
CONDITIONAL GUARANTY, <
definition of 339 ,
terms of 340
necessity of notice in absolute guaranty 348
guaranty of payment. . . 350
notice to guarantor. . 352
notice of default 353
continuing guaranty. . . 354
letters of credit as a continuing guaranty 355
when guarantor is liable on absolute guaranty 359
CONDITION PRECEDENT,
institution of suit against clerk 331
when not fulfilled 350
as to guarantee's bringing suit 360
CONFLICT OF LAWS',
governs suretyship like other contracts 93
CONSEQUENTIAL DAMAGES,
recovery of i 184
CONSIDERATION,
what is 35
for indorsing note before and after execution 36
surrender of old note for new 37
of suretyship must be legal 38
when it supports the surety's contract 39
presumption of 39
question of, in suretyship 39
when surety's promise is 40
executed consideration 40
moral obligation 40
Index. 677
OONSIDERATION— Con^Tmed. SBo.
when new consideration is necessary 40, 41
for mortgage to indemnify sureties n, 41
for extension of time 42, 43, 46
promise to pay debt of another — notice of acceptance of offer . . 45
for extension of time 46, 47, 48
in building contracts 112
for extension of time 113
what is, for extension of time 114
usury as a consideration for extension of time 115
disaffirmance of contract — return of considei-ation 135
payment of in installments 138
of indemnity contract 189
payment of void note — right of contribution 194
for bond 213
illegal, of bank as to deposits 301
of guai-anty 341
executory consideration in guaranty 342
moral obligation as^ — in guaranty 343
guaranties are of two kinds 344
guaranties, where consideration is entire 345
guaranty when consideration passes at different times 346
want of as to one of two guarantors 361
want of — guaranty contracts 362
for extension of time 363
failure of in guaranty 366
to bring promise under the statute of frauds 375
new consideration in guaranty 377
for promise in guaranty 378
original consideration in guaranty 381
oral promise to indemnify 382
for indemnity contracts 383
what is a sufficient consideration to pay debt of another 384
for release of lien — statute of frauds 392
promise to pay debt of another • 393
del credere contracts 394
inuring to the benefit of the promisor 396
CONSOLIDATION,
of corporations! — liability of surety 282
CONSTAJBLES,
see " Sheriffs and Constables."
CONSTRUCTION,
of contract — at law 67
where bond makes contract part thereof 67a
of contract — in equity 68
37
578 Index.
CONSTRUCTION— Cow (iMwerf. Sec.
of joint obligations as several 86
of strictissimi juris 112
of attachment proceedings 217
of surety's liability on injunction bond 232
of law — injunction bond 236
of surety's contract as to time 285
of surety's contract on collector's bond 337
of a guaranty 339
of indorsement 347
of guaranty 356
release of co-guarantor — effect 369
lex loci contractus governs 370
among bail 415
CONSUL GENERAL,
bond of strictly construed n, 301
CONTRACT,
suretyship need not appear on face of n, 171
to pay another to act as surety 2b
of guarantor 4
of surety , 4
of suretyship — how created 5
when joint — who are principals 22
of infants — voidable 24
of insane persons 25
of suretyship by partners 26
by corporations 28
by national banks 29
ultra vires contracts 30
of principal under duress 33
consideration 35
between principal and surety — consideration 35
illegality of consideration 38
to bind the surety 39
to forbear 44
place of signature 48a
delivery of 49
Sunday contract 49
alteration of written contracts — effect 55
extent of surety's contract 66
construction — at law 67
made part of the bond 67a
construction of contract — in equity 68
interpretation of 70, 71, 72
construing joint obligation as several 86
change in principal's contract 100
Index. 579
CONTRACT— CoHiinited. Sec,
destroying identity of 109
building contract — liability of surety 112
of extension — valid when 121
disaffirmance of — return of consideration 135
where the law enters into 161
taking effect — between surety and principal 174
between surety and principal 186
of indemnity — consideration of 189
for bond 213
bond and application for construed together 287a, 445
covenant not to sue 294
accord and satisfaction 295
change in — bonds of private officers and agents 297a
of the state 313
of guaranty 339
for indorsement 347
of guarantor 348
guaranty of payment 349
conditional guaranty 350
guaranty of illegal contract 351
construction of guaranty 35ft
assignment of guaranty 357
under seal — negotiability of 358
change of — discharge of guarantor 362
for extension of time — effect on guarantor 363
failure of consideration in guaranty 366
foreign corporation not licensed is void 370
lex loci contractus governs 370
disability of principal debtor in guaranty 376
third party not liable in guaranty 379
original consideration in guaranty 381
oral promise to indemnify 382
indemnity contracts in general 383
what is a sufficient consideration to pay debt of another 384
of novation — statute of frauds 385
collateral contracts 386
whether within the statute of frauds 388
of contractor — payable by another 391
relinquishment of lien 392
del credere contracts 394
to whom promise must be made 395
for the benefit of the promisor 396
special promise — release of original debtor 397
sale of goods^ — liability of third person 398
joint liability 399
oral — insurance 400
to answer for the torts of another 401
580 Index.
CO'STRACT— Continued. Sec.
implied to indemnify bail 415
express contract of indemnity to bail 416
of surety company — construction of 442
of surety company similar to insurance contract 443, 444
see "Alterations; Consideration;" "Execution of Contract."
CONTRACTOR,
not liable for sub-contractor's employees 79
payment of installments in adv^ance 103
liability of 112
paying in advance 138
agreeing to pay debt of 391
see "Building Contracts; Contract."
CONTRIBUTION,
of co-sureties 7, 8
two sets of sureties 9
liability of subsequent signer 10
rights of surety of a surety 165
right of co-surety to 178
right of — founded upon equity 194
right to generally 194a
right not subject to judicial control 194b
accommodation and compensated sureties 194c
co-surety paying by note — right to contribution 195
right to enforce at law 196
enforcement in equity 197
by surety of a surety 199
liability to contribute is several 200
as to co-surety's estate 201
remedy of co-surety for, before payment 202
right of, under different instrument 203
obligation must be the same 204
when co-surety limits his liability 205
of accommodation indorser 206
sureties in legal proceedings 207
indemnity to one surety 208
as to successive bonds 209
parol evidence to identify co-surety 210
running of the statute of limitations 211
bankruptcy of co-surety 212
when in an inverse order 260
- 1 • —
CONVERSATIONS,
evidence of n, 51
Index. 581
CONVEYANCES, Sec.
fraudulent conveyance by principal — rights of surety 160
surety setting aside fraudulent conveyance of principal 193
CORONERS,
liability when acting as sheriff 324
CORPORATIONS,
rights to contracts as sureties 28
power of officers of 28
ultra vires acts of 29
powers of national banks 29
implied power to become sureties 31
consideration — ultra vires contracts 35
when surety cannot deny incorporation of 61
appointment of agent — duration of liability 282
restricting sureties' liability by recitals in bond 284
increase of capital stock 286
continuing their agent in office after defaults 290
notice of surety's withdrawal from bond of officer 296
acts of corporation may discharge surety on officer's bond • ■ ■ • 297
agent of — loss of money 300
dissolution releases guarantor 361
COSTS,
an indefinite suretyship extends to all accessories', such as costs
and the like • 76
when surety may recover from principal 183
sureties agreeing to pay 321
wrongfully withdrawn by justice 334
verbal promise to pay 384
liability of bail 405
bail in civil cases 407
indemnity to bail 416
follow the judgment — bail 418
after forfeiture 435
CO-SURETY,
who is 3
presumption as to n, 3
obligation of .* 7
in joint contracts 22
release of 133
notice by one to creditor to sue 145
payment of debt by — rights of subrogation 166
rights of, to contribution 178
right of — founded on equity 194
582 Index. '
CO-STTKErrY— Continued. Seo.
right to contribution generally 194a
right not subject to judicial control 194b
accommodation and compensated sureties 194c
paying debt by note — right of contribution 195
enforcement of contribution at law 196
enforcement of contribution in equity 197
cannot speculate to the injury of his co-surety 198
liability to contribute is several 200
liability of surety's estate to contribution 201
remedy of, before payment 202
right of contribution under different instruments 203
obligation must be the same to create contribution 204
may limit liability 205
rights of accommodation indorsers 206
in legal proceedings — contribution of 207
Indemnity to one surety 208
contribution on successive bonds' 209
parol e\id6nce to identify a co-surety 210
running of the statute of limitations 211
bankruptcy of — right to contribute 212
COUNTY CLAIMS,
failure to pay n, 323
COUNTY CLERK,
liability on bond of n, 301
COUNTY JUDGE,
liability on bond of n, 301
COUNTY TREASURER,
liability on bond of * n, 301
COURT,
see " Jurisdiction."
COVENANT,
not to sue one of two or more joint debtors — effect 120
express covenant not to sue — may be broken — effect 121
not to sue one surety 294
CREDITOR,
may be compelled to bring suit 145
effect of notice to collect debt 146
promise of to look to principal only 147
informing surety debt is paid 148
Index. 583
CREDITOR— Continued. Sec.
may be compelled to resort to security 149
subrogation of to surety's securities 151
subrogation of surety to rights of 152
remedies of 171
D.
DAMAGES',
against liability 65
measure of surety's liability 75
surety is liable for liquidated damages 76
when must show damages before bringing suit 182
when surety may recover costs and interest 183
when surety can recover consequential 184
in attachment — breach of bond 222
in indemnity bonds 230
such as may be awarded n, 232
value of property as n, 238
" fair market value " n, 238
liability of sureties for 235
discontinuance of replevin suit • 239
joint guardian — suit against co-guardian 267
when sureties have agreed to pay 321
surety's liability for 327
resulting in taking insufficient appeal bond 333
by justice of the peace 334
resulting from notary's wrong 336
see " Liability."
BATE,
change of — effect on surety • 105
of surety's discharge on guardian's bond 262
running of the statute of limitations — guardian's account 263
of indorsement 347
DEATH,
of surety — effect 84, 85
of principal — effect 172
of co-surety — right of contribution against estate 201
of principal on appeal 226
of executor or administrator 242
of joint administrator 249
of guardian 259
of surety on guardian's bond 263
of public officer 306
notice of, termination of guaranty 344
continuing guaranty — termination of 346
of guarantor — effect 345
of principal, release of bail 412
584 Index.
DEBT, Sec.
whether obligation of surety or indorser is a debt 6
reduced to judgment — relation between surety and principal ... 64
revival of 89
pre-existing, as consideration in guaranty 342
DECREE,
for deficiency — joint debtors 124
of court against receiver — estoppel of surety 273
estoppel of surety — assignee 278
DE FACTO OFFICER,
liability of his sureties 304
DEFALCATION,
of principal — known to obligee 127
see " Defaults."
DEFAULTS,
judgment by against principal 65
surety's liability for past defaults of principal 69
of principal — surety's liability 75
of principal — notice to surety 88
of principal — known to obligee — effect on surety 127
notice of generally 144a
of principal — payment by surety 177
of executor or administrator, when a breach 242
of assignee 280
prior defaults of principal 288
continuing principal in office after known defaults 290
failure to discharge principal for defaults 291, 292
failure to notify surety of 293
liability of surety for prior defaults 302
of public officer, must be official 311
of principal — notice to guarantor 348
notice of, to guarantor 352
notice of — how given 353
waiver by agent of company of notice of n, 446
waiver by surety company of provision as to notice of 448
DEFINITION,
bail 402
co-surety 3
" guarantor " and " surety " construed 3a
guaranty 339
mainpernors 403
principal 1
surety 2
surety for the peace n, 2
suretyship n, Z
Index. 585
DEL CREDEIRE, Sec.
under statute of frauds 394
DELIVERY,
of note after execution — subsequent signing by surety — consid-
eration 36
of contract 49
to one of several obligees 49
in escrow 50
wrongful delivery by principal 51
of imperfect- instrument 52
of notice to creditor to sue 145
waiving — delivery of property in attachment 214
of note before and after indorsement 347
of principal by bail to proper oflficer 421
DEVASTAVIT,
by administrator — right of action against surety 258
DEVISEE,
executor as^-liability of surety 24&
DILIGENCE,
of surety as to nature of obligation 141
what is due diligence — guaranty 36ft
DISABILITY,
of principal — effect 92
conflict of laws 93
of principal — effect on surety 135
of principal — liability of surety 190
of principal debtor in guaranty 376
of third party in guaranty 379
DISAFFIRMANCE,
of contract after disability of party is removed — effect 135
DISCHARGE,
of principal — effect on surety 92
of surety generally 93a
of surety 94
after judgment — rights of surety 95
legality of payment 96
application of payments 97
application of payment by law 98
note payable to bank — application of debtor's deposit 99
change in the principal's contract. lOO
when the surety is not discharged by change of contract 101
alteration of the instrument 102
586 Index.
DISCHARGE— Continued. Sec.
material alteration 103
alteration of commercial instruments 104
change of date 105
alteration of amount 106
alteration of the note as to interest 107
change of place of payment 108
destroying the identity of the contract 109
addition of surety to a note 110
changing lease Ill
building conracts 112
extension of time of payment 113
consideration 114
usurious contracts 115
reserving remedy 116
extension of time 117
waiver of 118
extension for a definite time 119
giving time to one of tvpo or more sureties 120
what is an extension of time 121
accepting new note 122
taking collateral security 123
personal judgment for deficiency in foreclosure 124
fraud — extension of time 125
fraud to induce surety to sign contract 126
notice to creditors of principal debtor's dishonesty 127
by negligence of creditor • 128
surety signing upon condition 129
creditor surrendering security 130
releasing attached property 131
creditor failing to apply securities 132
by release of co-surety 133
failure of creditor to sue principal 134
disaffirmance of contract by principal 135
fraud upon the principal 136
substitution of securities 137
payment of consideration in installments 138
tender of payment 139
parol promise of creditor to look to principal only 147
creditor informing surety that the debt is paid 148
surety discharged by acts of the creditor 150
defense of surety 170
of co-surety in bankruptcy — effect on contribution • 212
of surety on attachment bond • 213
exoneration of surety. . » 214
of surety on administrator's bond 257
of surety on guardian's bond 262
of sureties — giving new bond by receiver 275
XNDEX.
587
mSCHARGE— Continued. Sec.
of assignee's sureties 280
of surety by fraud 287
giving second bond 308
of guarantor for want of notice of default 352
of guarantor 360
of guarantor by negligence of guarantee 361
of guarantor by change in the principal contract 362
of guarantor by extension of time 363
of guarantor by negligence of guarantee 364
of guarantor by fraud and duress of guarantee 365
of bail 406
DISHONESTY,
of principal — known to obligee 127
as to concealments 141
concealment of facts 143
of principal known to obligee 290
DISSOLUTION,
of partnership, see " Partnership."
DRAFTS,
acceptor is principal ' 15
oral promise to make — statute of frauds 389
see " Bills and Notes."
DURESS,
of principal 32
effect on surety 32, 92
personal to the party under it 136
by guarantee — effect 365
in obtaining guaranty 376
E.
EMBEZZLEMENT,
contract not to prosecute — illegality of consideration 38
by officer — concealment of by obligee 292
of officer on general bond 312
EMPLOYEE,
see " Private Officers and Agents."
EMPLOYMENT,
changing employment — liability of surety 72
additional employment 79
default of principal in 88
dishonesty of creditor 143
guarantied — liability 345
see "Private Officers; Private Official Bonds."
588 Index.
ENLISTMENT, S^c.
of principal — exoneration of bail 4
of principal — liability of bail 431
EQUITABLE CONVERSION,
by administrator or executor — liability of surety 244
EQUITY,
surety's defense in I'^O
relief of surety in 193
enforcing rights of co-sureties in 197
ERASURE,
of forged surety's name 315
ESCAPE,
when sheriff is liable 323
of principal after forfeiture 424
of principal — re-arrest — liability 425
ESCROW,
delivery of instrument 50
ESTATE,
of surety — liability for contribution • 201
ESTOPPEL,
signature on condition 51
to set up forgery 78
of surety to deny recitals in the instrument 59
to deny validity 38, 59a
to deny valid appointment of principal 60
to deny incorporation of corporate bodies with whom their
principal deals 61
to deny court's jurisdiction 62
attaching bond in collateral proceedings 63
by judgment 65
statutory bond 67b
of creditor to collect from surety 148
of surety by judgment against his principal 237, 238, 243
to deny validity of appointment of principal 257
to deny will duly probated 257
settlement of guardian with successor n, 263
of surety of guardian by judgment 265
of surety by recitals in bond 266
of surety on assignee's bond. 278
to deny eligibility of principal for oflBce. n, 301
Index. ' 589
ESTOPPEI^-Oon^inued. Sec.
of surety on de facto officer's bond 304
of surety by judgment against officer 321
to deny principal was tax collector 337
of foreign surety company. n, 441
EVIDENCE,
of intention to sign as witness 48a
of conditions affecting delivery 50, 51
of oral agreement limiting liability 77
of belief that principal had signed ■ 54
judgment against principal as 65
of conversations 51
in action against widow n, 171
of disposition made of proceeds of note n, 171
extension of time — burden of proof 113b
see " Burden of Proof; Parol Evidence, Presumptions."
EXECUTED CONSIDERATION,
to support a subsequent promise 40
when no part is executory 41
see " Consideration."
EXECUTED CONTRACT,
when the consideration is executed and not executory 40, 41
see " Contract."
EXECUTION,
failure to file as a release .n, 128
taking debtor's property — effect. . 131
release of levy of — benefiting surety 137
levy on realty. . . 224
levy on exempt property. 231
levied on exempt property. . 324
failure of clerk to issue. 333
EXECUTION OP CONTRACT,
when principal fails to execute contract — effect 52
surety signing with expectation of others signing 52
surety's name not appearing in body of the bond — effect 53
principal not signing. . 54
consideration . . . . 35
indorsing notes before and after execution 36
surrender of old note for new note 37
the consideration must be legal 38
concurrent contracts 39
590 Index.
EXECUTION OF CO'STRACT— Continued. SeX3.
surety's promise being the inducement 40
executed contract 41
extension of time — promise of third person to pay 42
agreement to forbear for an indefinite time 43
an agreement must be made to forbear 44
offer to become surety for another 45
extension of time — agreement to pay interest 46
both parties must agree. 47
extension of time by paying interest — contrary doctrine 48
delivery of contract. . 49
delivery in escrow 50
wrongful delivery by principal. 51
imperfect instrument 52
surety's name not appearing in the body of the instrument- . • • 53
principal not signing — name in the body of the instrument- • • 54
alteration of the instrument 55
filling blanks — as to surety's liability 56
filling blanks — negotiable paper. . . 57
surety signing as principal. 58
estoppel of surety to deny recitals in the instrument 59
surety denying valid appointment of principal 60
right of surety to deny incorporation of obligee 61
denying court's jurisdiction. . 62
attacking bond in collateral proceedings 63
effect of judgment on surety's liability 64, 65
when surety may avoid. 126
of guaranty. . . . 331, 341
executory consideration in guaranty. 342
EXECUTORS AND ADMINISTRATORS,
how liable 23
act of legislature releasing sureties n, 72
when note of decedent must be presented to 128
discharge of — right of contribution against heirs 201
right of contribution of sureties on successive bonds 203
liability of sureties on different bonds of executor 209
death of principal on appeal — substitution of administrator- - . 226
liability of their sureties. 242
judgment against — conclusive as to surety n 65, 243
income of real estate — liability for 244
sale of real estate beyond jurisdiction of court 245
surety liable only for principal's lawful acts 246
giving new and additional bond 247
liability of discharged surety. 248
sureties on joint bonds 249
death of joint principal 249
Index. 591
EXECUTORS AND ADMINISTRATORS— Oonfinued. Sec.
making allowances to widow. 250
being debtor to the estate 251
common law rule as to executor being debtor to the estate. . . . 252
general liability of sureties. 253
failure to bring action. n, 253
failure to pay over money — order of court n, 253
refusal to comply with judgment of court n, 253
failure to pay judgment debts n, 253
unauthorized payment of claims n, 253
same person administrator and executor of same estate 254
acting in fiduciary capacity. . 255
failure to return inventory. 256
release of surety. . 257
estoppel to deny validity of appointment of principal 257
estoppel to deny will duly probated 257
when period of limitations begins to run 257
must be accounting before suit on n, 258
as to continuing guaranty. 368
EXEMPTIONS,
of principal — how determined 161
EXEMPT PROPERTY,
levy on by sheriff, 231, 324
EXONERATION,
of bail 411
by performance of condition, 412
of bail by act of God 428
of bail by act of law 429
of bail by act of obligee 430
EXPENSES,
when co-surety can collect traveling expenses 196
when co-surety may recover. 200
EXTENSION OF TIME,
as consideration to third party 42
for an indefinite time 43
agreement to pay interest. . 46, 48
mutuality of agreement. . . 47
of building contracts. . 113
where instrument provides for. 113a
evidence — burden of proof. . 113b
of paying usury 115
592 Index.
EXTENSION OF Tn'[E— Continued. Sec.
reservation of remedy against surety 116
without consent of surety. . 117
to be valid, must be certain. . 119
giving time to one of two or more sureties — effect 120
what is a promise for - 121
of time by fraud of principal 125
of term of office by legislature. 305
as consideration for guaranty. 341
discharge of guarantor 363
as a consideration in guaranty 375
EXTRADITION,
of principal — effect on bail. 427
exoneration of surety . . 429
P.
FACTOR,
in del credere contracts. 39^
arrest of — bail. . . . 404
FAILURE OF CONSIDERATION,
see " Consideration."
FALSE ARREST,
by United States marshal > n, 323
FATHER,
guaranty by not in writing — void n, 374
FEDERAL OFFICER,
principal arrested by — liability of bail 426
FIDELITY BONDS,
see " Private Officers and Agents."
FIDUCIARIES,
sureties not n, 224
administrator acting as such. 255
when executor should act — death of guarantor 368
arrest of — bail. . 404
see " Executors and Administrators; Guardian; Receiver."
FIRE,
funds destroyed by. 316
FORBEARANCE,
for a reasonable time 43
taking new security. . 43
agreement to borbear 44
Index. 593
FORBEARANCE— Continued. Sec.
creditor's failure to sue principal 134
to inform surety of principal's dishonesty 143
as consideration for guaranty 341
of guarantee to bring suit. 360
of creditor — right of guarantor. 363
see " Consideration."
FORECLOSURE,
taking deficiency judgment against one joint debtor — effect • . ■ 124
FOREIGN ADMINISTRATOR,
liability of surety 260
see " Executors and Administrators."
FOREIGN CORPORATIONS,
see " Surety and Guaranty Companies."
FOREIGN SURETY COMPANIES,
statutes as to 438^ 440
may execute guardian's bonds. n, 441
see " Surety and Guaranty Companies."
FORFEITURE,
of bail bond — liability 419
effect of pardon 42o
effect of, on bond o.. , 433
setting aside. . . 434
arrest after forfeiture. . ...» ....... , 435
effect of remission. . .-.. 436
FORGERY,
when it releases surety 78
taking a forged note for a prior one secured — effect on surety. 125
of prior surety's name 315
impeachment of sealed contract. 341
guaranty of note — names forged 351
FRAUD,
notice of, by obligee, 51
construction of joint obligation §6
of principal unknon to creditor — effect on surety 125
extension of time I25
to induce surety to sign 126
upon the principal — effect 136
upon the surety 14q
38
594 Index.
FRAUD — Continued. Sec.
concealment of facts 141
fraudulent conveyance by principal — rights of surety 160
surety setting aside sale of principal 193
of co-surety — right to contribution. 202
order of probate court against guardian — estoppel of surety... 265
discharge of surety. . 287
obtaining surety by fraud ., 288
when mere laches of the obligee is not 293
of guarantee — effect. . 365
in the execution of promise. 376
arrest for — bail 404
of creditor — release of bail. . 411
see " Concealment."
FUNDS,
misappropriation of, by principal — surety's liability 75
increase of — liability of surety 76
raised by surety — appropriation of 96
joint fund for payment of joint debt 187
conversion of, by administrator 257
of surety of receiver for funds in his hands 274
making profits on public funds 318
misappropriation of, by clerk 329
see " Misappropriation."
G.
GENERAL AND SPECIAL GUARANTIES,
distinction of 340
GOODS,
transfer of as consideration for guaranty , . 377
sale of — guaranty « » 398
GRANTEE,
of mortgaged premises — relation to mortgagee 11
GRANTOR,
of mortgaged premises as surety. = 11
subsequent undertaking. . . 41
certifying acknowledgment of, who is absent 336
liability of 339-
GUARANTEE,
term construed n, 3a
qualified changed to absolute. 109
rights of 340
consideration between parties. . 341
Index. 585
GUARANTEE — Continued. Sec.
pre-existing debt 342
when consideration is a moral obligation 343
kinds of consideration 344
when the consideration is entire 345
when consideration passes at different times 346
when acceptance is necessary. . 348
payment to — guarantied. . . 349
what is due diligence of 360
negligence of — discharge of guarantor 361
delay to enforce payment 363
loss of securities — effect on right of guarantor 364
fraud and duress of 365
death of guarantor, notice 368
accepting instrument 369
running of the statute of limitations 371
see " Guaranty."
GUARANTOR,
terms " guarantor " and " surety " construed 3a
distinguished from surety. . 4
contract of 4
indorsing note before and after execution — consideration 36
presumption of consideration for contract 39
of payment of rent 82
revocation of guaranty. . 87
making a surety of. . 109
interposing fraud of principal to avoid payment 126
may impose condition. 129
payment of note — subrogation 169
parol evidence to show. 210
rights of. . . . 340
consideration for contract 341
of pre-existing debt. . 342
moral consideration, when a consideration 343
kinds of guaranty 344
when the consideration is entire 345
death of— effect 34B
when consideration passes at different times 347
endorsement of, before and after delivery of note 347
when acceptance of guaranty is necessary 348
guaranty of payment. . 349
of illegal note. . 351
notice of default 352
what is reasonable notice of default 353
when amount is limited. 354
construction of his contract. 356
assignee of guaranty — rights 357
guaranty of collection 359
596 Index.
GUARANTOR— Continued. Sec.
discharge of, by negligence of guarantee 360, 361
discharge of by change in the principal contract 362
discharge by extension of time 363
discharge of, by negligent loss of securities 364
discharge by fraud and duress 365
of defective contract. . . 366
revocation of guaranty. . 367
death of. . . 368
released co-guarantor 369
running of the statute of limitations 371
payment of debt by. 372
contract under the statute of frauds 373
when within the statute of frauds 374
effect of the statute of frauds on contract 375
principal debtor incapacitated. . 376
new consideration. . . 377
consideration for promise. . 378
taking debtor's property. . . 379
third party incapacitated. . 380
original consideration. . . 381
parol promise to indemnify. 382
indemnity contracts. . 383
what is a sufficient consideration for guaranty 384
of promissory note.. . . 390
in del credere. . . 394
GUARANTY,
distinguished from suretyship 4
of payment. . . 4
of collection. . . 4
of national banks 29
subsequent — effect 41
agreement to accept — when necessary. . 45
may cover pre-existing debt 69
as to transfer 82
revocation of. . . . 87
on condition. . . . 12&
definition of 339
classification of, as to nature 340
consideration of. . . . 341
executory consideration for. . 342
moral obligation as consideration for 343
as to consideration — classes. . . 344
where consideration is entire. 345
where consideration passes at different times 346
indorsement of note before and after delivery of note ?.47
Index. 597
GUARANTY— Con finMed. Sec.
when acceptance is necessary. . 348
offer of when acted on is binding n, 348
in form of an " O. K." n, 349
of payment 349, 350
of illegal contracts. . 351
construction of. . . 356
negotiability of .- 357
under seal — negotiability of. . 358
of collection 359
revocation of — dissolution of partnership 361
covers defects in the original contract 366
death of guarantor. . 368
lex loci contractus governs 370>
running of the statute of limitations 371
payment of verbal guaranty. 372
application of the fourth section of the statute of frauds 373
under statute of frauds . 374
effect of the statue of frauds 375
incapacity of principal debtor 376
new consideration. . . . 377
consideration for promise 378
parol agreement. . . . 379
third party not liable 380
original consideration. . . . 381
oral promise to indemnify 382
indemnity contracts 383
what is a sufficient consideration to pay debt of another 384
of promissory note. . . 390
in del credere 394
eee " Statute of Frauds."
GUARDIAN AND WARD,
administrator acting as guardian — liability of sureties 255
general liability of surety n87, 259
bond not complying with statute 259
note surrendered by guardian to maker n, 259
defalcation before execution of bond 259
failure to comply with invalid order of court 259
guardian loaning funds to himself 259
giving additional bond. . 260
selling real estate. . 261
when surety is discharged. . 262
termination of surety's liability. . 263
statute of limitations bars suit 263
must be settlement of accounts before suit n, 263
estoppel — settlement with successor n, 263
598 Index.
GUAHDIAN AND WARD— Continued. Sec.
when action arises on bond. 264
judgment against — estoppel of surety n65, 265
estoppel of surety by recitals in bond 266
joint guardians — liability. . . 267
joint bond — enforcement. . . 268
extent of surety's liability. . 269
notice for purposes of release n, 87
revival of debt by surety. 270
foreign company may execute bond n, 441
H.
HABEAS CORPUS,
right of bail to, for principal in another county 426
HEIRS, •%
rights of contribution against, 201
HOLDING OVER,
officer holding over — liability of surety 305
HUSBAND AND WIFE,
wife mortgaging her property to secure husband's debts 19
husband held to be surety for wife n, 18
release of married woman as surety — effect 18
mortgage by — adding wife's name. 110
wife giving note for pre-existing debt 191
I.
IGNORANCE,
of co-surety's obligation 7
IGNORANCE OF THE LAW,
does not excuse surety or principal 37
ILLEGAL CONTRACTS,
liability of surety. . . 38
IMPERFECT INSTRUMENT,
liability of sureties. . 52, 53, 54
filling blanks 55, 56
filling blanks in notes. 57
surety signing as principal. 58
common-law bond 405
Index. 599
IMPRISONMENT. ^^C-
false — United States marshal's bond n, 323
release of person from, as consideration for guaranty 377
in civil actions — bail 404
payment by. . . . 409
of principal — release of bail. . 411
suspension of — liability of bail. 420
INDEMNITY,
right of surety to. 2a
mortgage as consideration for n, 41
when securities are given for indemnity of surety only 151
creditor must hold securities for surety's indemnity 152
appeal bond — rights of original surety 168
when surety indemnified may bring action 182
when surety must take special indemnity 184
right of surety to take from principal 189
implied promise for, by principal 192
to one co-surety. . 208
bonds for 230
liability of surety. . 231
of surety against joint guardian. . 267
oral promise to indemnify. 382
contracts for in general 383
of surety — statute of frauds. 395
right of bail to. . 406
to bail in criminal action 415
express contract — to bail. . 416
from principal — surety company — statute as to 438
INDICTMENT,
of sheriff for neglect 326
entering in succeeding term — liability of bail 427
loss or quashing of — effect of 431
INDORSEMENT,
of notes before and after execution 36
of creditor on note — consideration for extension of time 46
creditor taking note with forged indorsement — waiver 125
parol evidence to explain blank indorsement 210
before and after delivery of note 347
of guaranty on note 357
without authority — guaranty 366
of notes for another — statute of frauds 389
see " Bills and Notes."
600 Index.
INDORSEE, SEa
whether obligation of indorser is a debt 6
accommodation indorser — relation of 14, 15
of bills of exchange and promissory notes — liability 16
of notes made payable to maker — rights of 17
of note before and after execution — liability 36
not released by holder of bill taking collateral security 123
different from surety 178
cannot recover costs against the drawer 183
as co-sureties — contribution 206
parol evidence to show 210
contract of 339
before and after delivery of note 347
promising to indorse — statute of frauds 389
see " Bills and Notes."
INDUCEMENT.
surety's promise being the inducement for the contract — con-
sideration 40
when collateral undertaking is not the inducement 41
of surety to extend time — effect 117
as consideration in guaranty 341
pre-existing debt as consideration 342
for a promise to indemnify 382
see " Consideration."
INFANTS, ' '
liability as sureties 24
disaffirmance of contract — effect 135
guaranty of infant's contract 356
guaranty of contract 376
disability — guaranty contracts 380
INJUNCTION,
order of liability of sureties 73
liability of surety on 232
when surety is liable 233
when liability of sureties is joint and several 231
what law governs 235
dissolution by series of orders 236
decree of — concludes surety 237
INSAN'E PERSONS,
contracts of 25
INSANITY,
as defense 25
of principal does not release bail 414
Index. 601
INSOLVENCY, Sec.
of debtor — effect on surety 131
of parties in suretyship — right to set-off and recoupment 144
of principal — rights of surety 159
payment of judgment by surety against principal 163
right of insolvent at common law to make preferences 189
insolvency of co-surety vv^ho has paid debt by his note 195
apportionment of debt among solvent sureties 196
excluding insolvent co-sureties in contribution 196, 197
of principal — attachment 216
new bond — insolvent surety 279
guaranty of collection — insolvency of principal 359
when guarantee must show insolvency of principal 360
discharge of principal — right of bail 408
see " Bankruptcy."
INSTALLMENTS,
payable in advance — effect 67
payment of rent in installments^ — liability of surety 81, 82
payable in advance— building contracts 103
paying in advance 138
when surety may pay the debt by installments 176
payment of debt — when statute of limitations runs 211
agreement that judgment may be paid in installments 228
INSURANCE,
oral contract of — statute of frauds 400
and surety company contract — similar 443, 444
INSURER,
surety is 2
INTENT,
of parties to control 67, 68
INTEREST,
agreement to pay interest to extend time of payment 46
express promise to pay — ^extension of time 48
when surety is liable for 74, 76
changing rate of — surety's liability 107
usurious, as a consideration for extension of time 115
taking in advance for extension of time — effect 121
when surety may recover from principal 183
on executor's bond n, 253
for breach of receiver's bond 276
taking, on bank deposit by officer ' 318
recovered after breach 319
602 Index.
INTEREST— Continued. Sec.
on penalty — official bond 327
guaranty of note 351
agreement to pay in advance — consideration 375
liability of bail 405
bail in civil cases 407
INVENTORY,
administrator not including his debt to the estate — effect. •251, 252
J.
JOINT BONDS.
executors or administrators 249
of guardians — liability 268
JOINT DEBTORS,
part payment by one of several joint debtors — effect 90
liability severally and jointly 91
adding signature of surety to note — effect 104
giving time to one or more — effect on the others 120
foreclosure — deficiency judgment against one 124
release of one joint debtor releases all 133
payment of judgment by surety 163
one compelled to pay more than his share — rights of subroga-
tion 167
parol evidence to show that one signed as' surety ■ 171
joint sureties making partial payments 176
pajonent of note by one 178
when joint sureties may bring a joint action 187
right of co-surety against co-surety 196, 197
right of contribution between 211
joint sureties on appeal — liability 226
on successive appeal bonds 229
sureties on joint bonds 249
joint guardians — liability 267
covenant not to sue one surety 294
joint action against cashier and his sureties 298
indorsers of notes 347
as to principal and guarantor 348
release of co-guarantor 369
revival of barred debt at common law 371
joint liability 399
joint and several liability of bail 419, 431
JOINT GUARDIANS, ' ' ' I
liability of 267
Index. 603
JUDGMENT, Sej.
relation between surety and principal after 64
against principal — effect on surety 65
when conclusive on surety 65
discharge of surety after 95
debtors' — extending time of payment as to one of joint debtors 120
for deficiency In foreclosure 124
judgment against debtor and surety — release of debtor — effect 132
irregularly obtained against principal — right of surety 150
payment by surety — rights of 163
rights of sureties 168
against the surety alone 171
payment of joint judgment 187
payment by surety 188
payment by co-surety — right to contribution 194
when co-surety is concluded 194
payment by solvent sureties 196
of non-suit in attachment — effect on surety 215
surety concluded in attachment by judgment against principal 223
satisfaction of — discharge of surety 224
affirmance by another court 225
change on appeal of issue 226
increase on appeal 227
successive appeals 228
against principal — conclusive on surety 237
surety cannot go behind judgment on replevin bond 238
discontinuing replevin suit 239
as to guardian or surety 264
estoppel of guardian's surety by 265
against receiver — suit against surety 272
against receiver — conclusive on surety 273
against receiver — effect on surety 276
estoppel of surety on assignee's bond 278
declared void — effect on sureties 280
estoppel of surety on official bond 321
on penal bond 327
payment to clerk 332
failure to enroll — liability of clerk 333
neglect of justice to enter 334
JUDICIAL ACTS, ' " ! '" I ' ',
public officer not civilly liable for 325, 326
sureties not liable for — justice of the peace 334
JURISDICTION, I , -|;^;^.,-T-n-^,
of court — denial of, by surety 62
of law courts in contribution 194
sale of real estate outside of 245
604 Index.
JURY, Sec-
will find amount of damages on penal bond 327
due care of clerk — question for jury 333
JUSTICE OF THE PEACE,
liability of sureties 334
K.
KNOWLEDGE,
by obligee of real consideration for guaranty not essential ..n, 381
L.
LACHES,
may release bail 411
see " Negligence."
LANDLORD AND TENANT,
concurrent contracts 36
rent payable in installments — liability of surety Cl
tenant holding over 82
see "Lease.''
LEASE,
rent payable in installments — liability of surety 81
tenant holding over 82
not providing that surety shall not be liable for second term. . 82
defective^ — tenant entering — effect 82
reduction of rent — effect on tenant's sureties 101
changing of — effect Ill
reduction of rent with surety's consent Ill
guaranteed — not revocable 345
guaranty of — one lessee's name omitted 366
LEGAL PROCEEDINGS,
see " Sureties in Legal Proceedings."
LEGISLATURE,
changing the nature of the principal's oflBce 72
extending charter of bank. 72
increase of funds in the hands of the principal — liability 76
increase of surety's liability 227
extending time of office 305
subsequently imposed duties by 312
time of court changed — liability of bail , . 423
LETTERS OF CREDIT,
how construed 67
as a continuing guaranty 355
construction of 356
assignability of 357
lex loci contractus governs 370
Index. 605
LEVY OF TAXES', Sw^
see " Taxes."
LEX FORI,
remedy of mortgagee against grantee of mortgaged premises • • 13
LEX LOCI CONTRACTUS,
governs as to guaranty 370
LIABILITY,
of principal 1
of surety 1
of co-sureties 3, 7
nature of surety's liability 8
agreement as to liability among sureties 10
change of, by agreement among principal debtors 21
of joint executors and administrators 23
for collateral undertaking 40, 41
of surety when instrument is imperfect 52
of surety whose name does not appear in the bond 53
of principal whose name appears in the bond which is not sub-
scribed 54
of surety — after filling blanks 56
of surety on instrument whose blanks have been filled up 57
of surety on his contract 66
of surety in contracts 67, 68
of surety may be limited to a fixed time 70, 71
condition of suretyship changed 72
two sets of sureties — order of liability 73
surety liable for penalty 74
liability for funds 75, 76
surety may limit his liability 77
of surety for acts of principal not in line of duty 80
of surety — principal associating with others 83, 84
of surety on building contracts ■ 112
of surety of a surety 165
of principal to surety 173
of principal to surety for costs 183
of surety's estate 201
co-surety may limit 205
of accommodation indorser 206
of surety on successive bonds 209
of officer and surety for trespass 231
liability of surety — when joint and several 234
of surety on replevin bond 238
of surety — discontinuance of replevin suit 239
of discharged surety 248
606 Index.
liIABIJATY— Continued. Sec.
of sureties for debts due the estate by the administrator. . .251, 252
general liability of sureties on the bonds of administrators .... 253
of joint guardians 267
extent of, on guardian's bond 269
of sureties on receiver's^ bond 271
extent of, on receiver's bond 276
of surety on assignee's bond 277
though sureties justify in different amounts held equally liable
—statute n, 323
of guarantor 339
extent of— bail 407
of different sets of sureties 410
and rights — bail 414
extent of — bail 417
joint and several — bail 419
of bail generally; see " Bail; Ba,il in Civil Cases; Bail in Crim-
inal Cases; Damages."
LIBEL,
by sheriff, by unofficial act» 323
LICENCE,
of foreign company — revocation of n, 438
LIEN,
release of, by creditor 130
attachment lien — insolvency of principal 216
failure to enroll a judgment — liability of clerk 333
of surety, unasserted 338
relinquishment of — statute of frauds 392
LIMITATION,
of liability by surety 77
LIMITED AND CONTINTJING GUARANTY,
distinction of 34O
terminated by death 346
revocation of continuing 367
death of guarantor 368
running of the statute of limitations 371
LOSS,
of money — liability of corporate officer for 300
of money by public officers 3I6
M.
MAINPERNORS,
definition 403
MARSHAL,
wrongfully levying on property 324
see " United States Marshal."
Index. 607
MARSHALLING DEBTS, Sec,
creditor secured by mortgage on surety's property — rights of
unsecured creditors 151
MERGER,
of debt in judgment — effect 95
of first and second bond 308
MILITARY AUTHORITY,
arrest by releases bail 426, 431
MINISTERIAL DUTIES,
of public officers — what are 32S
liability of clerk for 333
of justice of the peace 334
MINOR,
bond to — sale of property and diversion of proceeds n, 24
see " Guardian and Ward."
MISIAPPROPRIATION,
of funds by principal — surety's liability 75
of funds increased 76
by administrator 253^
of clerk of court 329
of justice of the peace 334
of tax collector 33T
see " Funds."
MISREPRESENTATION,
by creditor or third party 126
see "Concealment; Fraud."
MOBS,
liability of sheriff for suppressing 326
MONEY,
loss of corporate officer 300
lost or stolen from principal — public officers 316
taking of in lieu of bail 437
MORAL OBLIGATION,
as consideration in guaranty 343
MORTGAGE,
of property to secure debt of another 18
of wife's separate property to secure husband's debt 19
taking as collateral security — effect on surety 123
foreclosure of — deficiency judgment — joint debtors 124
failure to file as a release n, 128
release of, by creditor — rights of surety 154
guaranty of — assignability 357
608 Index.
MORTGAGE— Continued. Sec.
assignment — guaranty 359
release of, by mistake. 364
given to indemnify bail 416
MORTGAGEE,
rights against mortgagor and grantee of premises 11
rights of, in law and in equity, as to grantee of premises 12
must assent to make grantee of mortgaged premises as principal 13
secured by surety's property — rights of other creditors 151
release of lien. . 392
MORTGAGOR,
sale of mortgaged premises — becoming surety of grantee 11
release of lien — statute of frauds 392
MOTHER,
held to be principal n, 18
N.
NATIONAL BANKS,
right to contract as surety 29
selection of notary — liability 336
NEGLIGENCE,
of creditor in not availing himself of the debtor's property 128
of creditor releases surety 132
of guarantee. . . . 360
due diligence in collection. 363
negligent loss of securities — effect on guarantor 334
laches may release bail 411
NON-COLLECTION,
of taxes — liability of surety. ' 337
NON-PAYMENT,
of sheriff for money received 325
of note — protest. . . 336
NON-RESIDENTS,
as sureties. . 33
notice to non-resident principal 146
co-surety — right of contribution. . 197
liability of non-resident surety 200
of maker of note — guaranty. . • 359
NON-SUIT,
in attachment — effect on surety. 215
may be set aside — rights of surety on appeal 228
Index. 009
NOTARY PUBLIC, Sec.
liability for money on bond of n, 301
liability of sureties. . . 336
NOTES,
see " Bills and Notes."
NOTICE,
as to surety. . *
as to guarantor 4
to indorser of note — when required for non-payment 16
of acceptance of third party's offer to pay debt of another 45
of surety's death — effect. . 85
termination of surety's liability. 87
of default— liability of obligee. 88
of creditor of principal's dishonesty — effect on surety 127
of default generally. . . 144a
to creditor to collect debt 145
written notice.
146
failure to notify surety of principal's default 293
of surety's withdrawal from officer's bond 296
release of surety on guardian's bond n, 87
when death is— withdrawal of surety 306
of death— termination of guaranty. 344
of death— continuing guaranty. . 346
of default of principal. .. 348
in guaranty of payment 349
in conditional guaranty. . . 350
of default of guaranty. . 352
of default— how given. . . 353
to maker of letter of credit 355
of death of guarantor. 368
of default — waiver of by agent of company n, 446
of default to company — waiver of provision 448
NOVATION,
not within the statute of frauds. 385
NUDUM PACTUM,
agreement to extend time of payment 46
O.
OFFER,
to become surety— notice of acceptance. 45
mere offer to guarantee — revocation of 87
of guaranty — acceptance. . . 348
OFFICE,
change of office— liability of surety. . 72
increasing duty of principal. . 79, 80
defaults in, by sheriff. . 323
Bee " Private Oflacws and Agents."
39
610 Index.
OR ORDER, fc>EC.
inserted in non-negotiable note — effect on surety 109
OVERPAYMENT,
by officer— liability 325
OVERSEER OF POOR,
liability on bond of n, 301
P.
PARDON,
of criminal — liability for costs 418
effect of. . . . 420
PAROL AGREEMENT,
to give time to one of two or more joint debtors — effect 120
by creditor to look to the principal only 147
of litigants in attachment 228
of guaranty. . . 372
in case of guaranty 379
to indemnify 382
to pay costs. . . 384
to indorse note for another — statute of frauds 389
to pay debt of contractor. 391
to pay for goods of another 397
to answer for the torts of another 401
PAROL EVIDENCE,
action upon specialty — setting up parol agreement to show ex-
tension of time 117
to show one signed as surety n2, 171
intention to sign as witness 48a
admissible to show who are sureties. 210
cannot vary a judgment. . 321
PARTIES,
surety and principal joined as parties defendants 1
infants. . . . 24
insane persons. . . 25
partners . . . 26
attorneys-at-law. . . . 27
corporations. . . . 28
national banks. . . 29
principal under duress 32
non-resident. . . . 33
surety and guaranty companies 34
legal effect of indorsement of 210
bringing in new parties defendants in attachment 218
substitution of new parties in replevin suit 240
one of two sureties absent from state n, 1
to contract of novation. . 385
incapacity of — guaranty. . . 376, 380
Index. 611
PARTNERS, Sec.
dissolution of partnership — assumption of debts by one partner 20
agreeing among themselves to change liability 21
contract of suretyship. . 26
how bond to be construed n, 67
bond for as agents — misappropriation by one 75
principal becoming partner. 79, 83
subrogation of surety 153
surety to one partner. 179
PARTNERSHIP,
dissolution of — partner assuming payment of debt 20
partner's authority 26
principal going into partnership 83, 84
effect of change in 84
Surety for specified time 100
subrogation of surety. . 153
surety to partner. . 179
as a co-surety. . . 196
dissolution of — revocation of guaranty 361
PAYMENT,
of interest in advance as a consideration for extension of time 46
extension of time for. 42, 43, 46, 47, 48, 89
part payment by one of several and joint debtor 90
of debt discharges surety. 94
legality of — to release surety. 96
application of 97
application by law. . 98
application of debtor's deposits 99
changing place of — effect. . 108
on certificate of architect or other person 112d
generally — building contracts 112e
extension of time — building contract. 113
partial payment as a consideration to extend time 114
usury as consideration for extension of time 115
of consideration in installments. . 138
tender of 139
what is . . 158
by one standing in place of surety 158
subrogation of surety's securities. . . 151
by surety — subrogation to creditor's rights 152
of debt by surety — rights of subrogation 153, 154
by stranger — rights of subrogation. 155
rights of surety after payment of debt. 156
payment must be made at law before subrogation 157
rule in equity. . 157
what is 158
when surety owes principal — rights of parties 162
612 Index.
FAYMEWI— Continued. S^c.
of judgment by surety. : 163
by surety — extent of subrogation. . 164
by surety of a surety. 165
by surety in depreciated money 167
by surety before due. 1'^'*
part payment by surety. . 1'''6
surety must be under legal obligations to pay 177
by surety — assignment. . 178
by giving surety's note.
180
out of surety's property. 1^1
when surety may bring action before payment of debt 182
of note by surety— attorney fees 183
by surety — consequential damages. . 18*
of usury by surety. 185
by surety of less amount 186
by sureties severally. . . 187
of judgment by surety. . . 188
by surety when principal is not liable 190
voluntary payment by surety 191
of debt by surety — statute of limitations 192
by co-surety — rights of. . . 194
by co-surety's note — right to contribution 195
by non-negotiable paper — right to contribution 195
by solvent sureties at law. 196
by solvent sureties in equity. 197
of debt by one surety — giving a less amount than the face of
the note 198
remedy of co-surety before payment of debt 202
by accommodation indorser — right of contribution 206
in installments — running of the statute of limitations 211
of judgment in installments. 228
of debt due the estate by the administrator 251, 252
by sureties, of bond in full. 327
of money to clerk — liability of surety. 329
failure of clerk to pay over. 331
money paid into court. 332
guarantied. . . . 348
guaranty of 350
default of— notice to guarantor. 352
acceptance of guaranty — payment in default 355
guaranty of collection. . . 359
of guaranty — discharges guarantor. . 361
application of — guaranty. . . 361
delay in enforcing — right of guarantor 363
part payment by joint debtor of barred debt 371
of debt by guarantor. 372
by imprisonment of principal. 409
Index. 613
PENALTY, Sec.
surety liable only for penalty of the bond 74
can recover both penalty and interest 183
on successive bonds — right of contribution 209
surety's liability on guardian's bond 269
liability of receiver's surety. . 276
liability of surety for 320
interest on — official bond. . 327
liability of baiL . . 405
extent of bail's liability . 407
effect of pardon 420
surety companies — construction of statute as to 440
PHOTOGRAPH,
sent by sheriff — not official acts. . 323
PLACE,
changing — liability of surety 108
PLEADINGS,
defense ultra vires must be pleaded n, 30
execution and delivery n, 49
on bond not signed by principal n, 51
action by assumpsit by surety against principal 178
right of co-surety to bring assumpsit 195
when co-surety must allege insolvency of principal in action
for contribution 197
when co-surety may recover on the common counts 200
amending pleadings in attachment proceedings 217
bringing new parties defendants in attachment 218
change of issue, in attachment appeal 226
when surety may set up defense 243
PLEDGE,
of property to secure debts of another 18
POLICE OFFICER,
liability of surety. . 335
PRE-EXISTING DEBT,
as consideration in guaranty 342
PREMISES,
retention of as consideration for guaranty 377
improvements upon as consideration for guaranty. 377
PREMIUM,
surety company contract binding though not paid 444
PRESUMPTIONS,
that sureties are co-sureties n, 3
as to use of money borrowed by corporation n, 28
614 Index.
PRESUMPTIONS— Co«<in.«e(?; Sec.
from corporate seal ii> 28
as to corporation paper ii> 28
acceptance of offer to become surety 45
when bond takes effect 49
of rightful possession by principal 51
knowledge of terms of statutory official bonds 67b
none that compensated surety injured n, 113
payment by surety n, 176
as to term of public officer's bond. n, 30i
as to sureties on a second bond. 303
as to term of office 305
of liability of indorser. . 347
as to continuing guaranty. 354
payment by guarantor. . . 372
benefit to the promisor. 396
PRINCIPAL,
who is 1
nature of, in suretyship and guaranty 4
grantee of mortgaged premises. 11
when grantor and grantee are principals 11
accommodation indorser as principal. 14
acceptor of a daft and the maker of a note are principals 15
in joint contract. 22
duress of 32
contract with surety — consideration. . 35
wrongful delivery of instrument by 51
delivery of imperfect instrument. 52
name in body of the bond only 53
surety signing as— liability. . 58
denying valid appointment of, by surety 60
dealing with corporation — denial by surety of incorporation ■ • 61
estopped to deny validity of bond 62
attacking bond on collateral proceedings 63
relation to surety after judgment 64
judgment against— effect on surety. 64
defaults of — liability of surety. 69
employment changed — liability of surety. 72
misappropriation of funds by — surety's liability 75
imposing additional duties — liability of surety. 79
becoming partner. . . '^^
act of, not in the line of his duties 80
associating with others. . 83
several principals 84
in joint obligations. . . 86
default of. . . 88
absence from State — statute of limitations 91
Index. 615
TUmClPAlt— Continued. Sec.
disability of — surety's liability 92
discharge of — effect on surety. 94
after judgment — acts which will discharge surety 95
legality of payment 96
application of payments 97, 98, 99
change of contract — effect. . . 100, 101
consideration for extension of time ....114, 115, 116, 117, 118, 119
fraud of, in extending time 125
principal's dishonesty known to obligee — effect 127
failure of creditor to sue 134
fraud upon — effect. . . . 136
payment of consideration in installments in advance 138
right to set-off and recoupment 144
creditor's promise to look to the principal only 147
creditor informing the surety that the debt is paid 148
liabiliy of to surety. . 174
right of surety to defend actions brought against principal 150
owed by surety — set-off. . 159
fraudulent conveyance by 160
exemptions of. . . 161
when surety owes principal. 162
payment of judgment by surety. 163
death of — effect. . . 172
debt barred against principal — effect 173
payment by surety before debt is due 175
action of surety against principal 178
liability to surety for costs and interests 183
payment of usury by surety for principal 185
what amount surety can collect from principal 186
right of surety to take indemnity from 189
payment by surety when principal is not liable 190
voluntary payment by surety. . 191
statute of limitations 192
surety setting aside conveyance by 193
when co-surety may recover attorney fees and expense from- . . 200
judgment against, concludes surety. 237
administrator debtor to the estate 251
administrator debtor to the estate — common law rule 252
discharge of an administrator's bond — right of surety 257
judgment against — estoppel of surety 265
estoppel by recitals in bond 266
joint guardians — liability. . . 267
his own successor — report 289
continuing principal in office after known defaults 290
sureties liable for official acts. 311
money lost by or stolen from 316
as to guarantor 348
616 Index.
PRINCIPAL— ContinMerf. Sec.
insolvency of — guaranty of collection. 359
delay by guarantee to prosecute. 360
payment of debt by guarantor. 372
rights of — del credere contracts. 394
liability of bail 406
discharge of — rights of bail. . 408
in criminal cases 413
implied indemnity to bail 41&
PRINCIPAL IN CIVIL ACTIONS,
who is a principal. . 402
right to arrest. . . 404
rights of bail to deliver 40&
bail liable for principal. . 406
extent of liability of bail. 407
discharge of principal in bankruptcy or in insolvency 408
payment by imprisonment of. 409
liability of different sets of sureties 410
exoneration of bail 411
exoneration by performance 412
PRINCIPAL IN CRIMINAL ACTIONS,
custody of. . . 413
rights and liability of bail. 414
implied contract to indemnify bail 415
express contract of indemnity to bail 416
effect of surety's liability. 417
costs 418
joint and several liability of bail 419
effect of pardon 420
delivery of, by bail. 421
bail on appeal. . . 422
appearance of principal. . 423
re-arresting principal on the same charge 424
giving a new bond. 425
arresting principal on different charge 426
sureties released by change of their obligation 427
exoneration of bail by act of God 428
exoneration of bail by act of law 429
exoneration of bail by act of obligee 430
exoneration of bail in general 431
subrogation in criminal cases. 432
effect of forfeiture of bond. 433
setting aside forfeiture 434
voluntary appearance or arrest after forfeiture 435
effect of remission of forfeiture. 436
taking money in lieu of bail 437
Ikdex. 6 it
PRISONER, Sec.
taking articles from — liability of officer 323
officer's liability for escape of. 325
delivery to incompetent deputy sheriff 326
PRIVATE OFFICERS AND AGENTS,
private bonds— liability. . . 282
continuing liability of private. 283
continuing liability of surety. 283
restriction of surety's liability. 284
as to the scope of employment 285
increase of the capital stock of the corporation 286
discharge of surety by fraud 287
bond and application construed together — effect of statements
in application. . . 287a
liability for past defaults 69
bond covering prior and subsequent defaults 288
his own successor. . . 289
continuing in the same office 290
delinquency of obligee. . 291
failure to discharge delinquent. 292
failure to notify surety of default 293
covenant not to sue. 294
accord and satisfaction 295
notice of surety's withdrawal 296
discharge of surety by acts of obligee 297
departure from terms of contract 297a
action on the bond 298
sureties concluded by recitals in the bond 299
liability for loss of money 300
PRIVATE OFFICIAL BONDS,
duration of surety's liability. 282
continuing liability of surety 283
restriction of surety's liability. . 284
as to the scope of the officer's employment 285^
increase of the capital stock. 286
discharge of surety by fraud 287
liability for past defaults 6I^
bond covering prior and subsequent defaults 288
principal his own successor. 289
continuing in office after known defaults 290
delinquency of obligee. . 291
failure to discharge delinquents. 292
failure to notify surety of officer's default 293
covenant not to sue one surety 294
accord and satisfaction of officer 295
notice of surety's withdrawal. . 296
discharge of surety by acts of obligee 297
618 Index.
PRIVATE OFFICIAL BONDS— Continued. Sec.
action on the bond 298
sureties concluded by recitals in a bond 299
liability for loss of money. 300
PROBATE COURT,
probate of will in another State — effect 245
order of, against guardian — binding on surety 265
PROCESS,
failure of officer to return 325
PROFITS,
making on public funds. 318
PROMISE,
surety's promise being the inducement for the contract — con-
sideration. . . . 40
founded upon a passed consideration. 40
to pay by third person for extension of time 42
to pay debt of another — consideration 44
to extend time of payment. 46, 47, 48
to revive a debt. 89
for a promise as a consideration 114
by surety to revive debt 118
of extension — what is. . . 121
of creditor to look to principal only . . • • 147
to pay a pre-existing debt of another 191
implied from principal. . 192
as consideration of guaranty. 341
parol — in guaranty. . . 343
when within statute of frauds .• 374
effect of the statute of frauds 375
of incapacitated debtor. . . „, 376
new consideration. . . . 377
consideration for. . . 378
third party — taking debtor's property. . 379
third person not being liable in guaranty 380
original consideration. . . 381
oral, to indemnify another. . 382
indemnity contracts in general. 383
what is a sufficient consideration in guaranty. 384
in novation. . . . 385
to pay debt of another. . 386
to debtor to pay his own debt 387
to whom credit is given 388
executing and indorsing notes for another 389
to promote interest of promisor. 391
relinquishment of lien. . 392
to perform the oblis'ation of another 393
del credere ccn'ra't? . . 394
Index. 619
PROMISE— Continued. Sec.
to whom promise must be made 395
contract for the benefit of the promisor 396
special promise 397
sale of goods 398
joint liability 399
oral contract of insurance. . 40O
to answer for torts of another 401
PROTEST,
by notary — bank's selection 336
PUBLIC OFFICERS,
presumption of knowledge of terms of bond 67b
duration of liability on bonds of 70, 71
extent of sureties' liability. 301
acts done under color of office n, 301, n, 336
effect of judgment against principal. n, 301
presumption as to term of bond n, 301
estoppel to deny eligibility to office n, 301
who may sue on bond. n, 301
city clerk's bond. . . n, 301
county treasurer's bond. . . n, 301
consul general's bond. . . n, 301
bond for county work an official bond 301
sureties are insureres of funds n, 301
burden of proof as to moneys n, 301
question for jury — time for turning over funds n, 301
collector of internal revenue — bond of n, 301
county judge's bond. . n, 301
notary public's bond. . . n, 301
overseer of poor — bond of. . n, 301
school treasurer's bond. . n, 301
supervisor's bond. . . . 302
liability of sureties for prior defaults 302
presumption as to sureties on second bond 303
de facto officers . 304
holding over. . . 305
death of. . . 306
money used to cover previous delinquencies 307
giving second bond in same term 308
giving bond without statutory authority 309
general and special bonds. 310
sureties only liable for official acts 311
subsequently imposed duties. . . 312
subsequently imposed duties by the legislature 313
State not responsible for its officers 314
forgery of prior surety's nan.e 315
money lost or stolen fiC:.;- • »• .. -• 316
620 Index.
PUBLIC OFFICERS— Continued. Sec-
depositing money in bank. 317
making profits on public funds. . 318
interest recovered after breach. . 319
sureties' liability for penalty. 320
estoppel of surety by judgment. 321
construing public officers' bonds with reference to statute. •• •321a
sheriff's and constable's liability. 322
scope of sheriff's and constable's liability 323
sureties justifying in different amounts equally liable n, 32S
sheriff or constable levying on wrong property 324
liable for ministerial duties 325
duty to State and to persons 326
limit of surety's liability. 327
liability of surety after term expires 328
sureties' liability. . 329
clerks of court. . . 329
compensation of clerk of court 330
failure to pay over by clerk 331
money paid into court — liability of clerk 332
delinquencies of clerk. . 333
sureties on bond of justice of the peace 334
sureties on bond of police officer 335
sureties of notary public 336
tax collector 337
subrogation of surety 338
PUBLIC OFFICIAL BONDS,
presumption knowledge of terms of 67h
duration of liability on 70, 71
conditions changed by legislature 72
bonds of — conditions changed by legislature 72
extent of surety's liability. 301
collector of internal revenue — bond of n, 301
county clerk's bond. . . n, 301
county judge's bond 301
notary public's bond. . . n, 301
overseer of poor — bond of. n, 301
school treasurer's bond. . . n, 301
acts done under color of office n, 301, n, 336
effect of judgment against principal n, 301
presumption as to term of bond n, 301
estoppel to deny eligibility for office n, 301
who may sue on bond. n, 301
city clerk's bond. . . n, 301
county treasurer's bond. . . n, 301
consul general's bond. . . n, 301
bond for county work an official bond n, 301
Index. 621
PUBLIC OFFICIAL BONDSr— Continued. Sec.
sureties are insurers of funds n, 301
burden of proof as to moneys n, 301
question for jury — time for turning over funds n, 301
supervisor's bond 302
liability for previous defaults. 302
presumption as to sureties on second bond ~ 303
de facto official bonds . 304
officers holding over. . 305
death of officer. . . 306
money used to cover previous delinquencies 307
giving second bond in same term 308
giving bond vi'ithout statutory authority. 309
general and special bonds. . 310
surety liable for official acts. 311
subsequently imposed duties. . 312
imposed duties by the legislature. . 313
State not responsible for its officers 314
forgery of prior surety's name 315
money lost or stolen from principal 316
depositing money in bank. 317
making profits on public funds 318
interest recovered after breach. . 319
liability of surety for penalty 320
estoppel by judgment. . . 321
construing bond with reference to statute. 321a
of sheriff and constable. 322
sheriff and constable — liability of sureties 323
sheriff and constable levying on exempt property 324
liability for ministerial duties. 325
duty of officer to State and to persons 326
limit of surety's liability. . 327
liability of surety after term expires 328
liability of sureties on bond of clerks 329
compensation of clerk. . . 330
failure of clerk to pay over 331
money paid into court. 332
delinquencies of clerks. . 333
sureties on bond of justice. 334
sureties on bond of police officer 335
sureties on bond of notary public 336
of tax collector. . 337
subrogation of surety. . 338
Q.
QUESTION FOR JURY,
condition as to delivery n, 51
extension of time n, 113
C22 Index.
QUESTION OF LAW, Sec.
whether one signed as surety n, 2
what is reasonable time to deliver funds to successor in
office. . . . n, 301
R.
[RAILROAD COMPANY, Sec.
loss of money by agent — liability 300
RATE,
company may charge — statute cannot fix. 439
RATIFICATION,
by surety of unauthorized act, 114
REAL ESTATE,
income from — administrator's liability. . . 244
equitable conversion. . . 244
sale of, beyond jurisdiction of State 245
guardian selling — new bond. . . 261
RE-ARREST,
of principal on same charge — liability of bail 424
RECEIVER,
liability of his sureties. . 271
right of action against his sureties. 272
when surety is concluded by judgment against receiver 273
liabilities of sureties for funds. 274
liabilities of sureties on new bond 275
extent of sureties' liability on receiver's bond. 276
RECITALS,
in instrument — denial of, by surety. . 59
estoppel of surety by — in bond 266
restricting surety's liability. . . 284
surety concluded by, in officer's bond. 299
estoppel of de facto officer by recitals in his bond 304
i to show continuing guaranty. 354
J in guaranty false — guarantor not released 366
RECOGNIZANCE,
subrogation of surety in place of State 338
discharge of principal. . . 408
custody of principal. . . 413
rights of bail. . . 414
RECOUPMENT,
as to surety and principal. 144
see " Set-Off."
Index. 623
RELATION, Sec.
payment of debt by surety — antecedent rights 160
when surety owes principal 162, 174
implied contract of indemnity dates back to its execution 301
RELEASE,
of surety for fraud of obligee 51
Oi principal debtor — reserving remedy against surety 116
of surety by extension of time 119
of one of joint debtors 120
of one joint debtor — judgment. . . 124
of co-surety. . . . • 133
of part of collaterals 137
wrongful release of mortgage — rights of surety 154
payment of judgment by surety. 163
of surety — payment afterwards. . . 177
of co-surety who becomes bankrupt. 212
of mortgaged security by mistake. 364
of co-guarantor 369
when original debtor is released . 397
REMEDIES,
reservation of, by creditor against surety. 116
contract of suretyship — rights of parties. 140
diligence of surety 141
facts concealed. . . 142
facts developed subsequent to the contract 143
set-off and recoupment 144
compelling creditor to bring suit. ' 145
effect of notice by surety to creditor to bring suit 146
creditor's promise to look to the principal alone 147
creditor informing the surety that the debt is paid 148
surety may compel creditor to resort to securities 149
, right of surety to defend action 150
subrogation of creditor to sureties' securities 151
subrogation of surety to creditor's rights 152
what securities the surety is entitled to 153
when surety can take securities. 154
stranger paying debt. . . 155
when surety will not be subrogated 156
surety must first pay the debt 157
what is payment 158
debtor and creditor 159
fraudulent conveyances of principal 160
as to exemptions of principal. . 161
when surety owes principal. . 162
payment of a specialty. . 163
€24 Index.
KEMEmES— Continued. Sec.
extent of subrogation. . . 164
Burety of a surety. . . 165
co-sureties 166
marshalling debts. . . . 151
right of surety against principal. 158
when surety owes principal. 162
payment of judgment by surety 163
of co-sureties — payment of debt. 166
of creditors. . . 171
death of principal — rights of creditor 172
of accommodation indorser 183
of surety in equity. ly j
surety paying by his own note — compelling contribution 195
enforcing contribution at law. 19 ^
enforcing contribution in equity Ih'i
of co-surety before payment of debt 20:^
co-sureties', different liability — right of contribution 205
of injured defendant in attachment 222
against receiver. . . . 271
against tax collector 337
by assignee of guaranty.. 357
by assignee of sealed contract 357
In criminal cases — subrogation. . 432
BENEWAL,
of note 10
of debt. . . 89
of note — effect on surety. . 122
of note by forged note — effect on surety 125
RENTS AND PROFITS,
payment in installments — liability of surety 81
tenant holding over. . 82
reduction of — effect. . . 101
reduction with surety's consent. . Ill
in attachment — liability of surety. . 224
of real estate — liability of administrator's or executor's surety. 244
conversion of land by administrator 246
non-payment by officer with proceeds of sale 325
guarantied lease — not revocable 345
REPLEVIN,
bond in — liability of sureties. 238
discountinuance of action. . . 239
substitution of new parties 240
varying the bond in 241
failure of officer to take sufficient bond 325
Index. 625
REPORTS, ' Sec.
by employee — waiver as to n, 72
RES AD JUDICATA,
judgment against principal. . . 223
RESERVATION,
of creditor's right against surety — extension of time 116
REVERSAL,
of judgment in attachment — rights of surety 224
REVIVAL OF CONTRACT,
by surety. . . . 34
of surety's liability. . . 89
of debt by surety. . . 118
by surety. . . . 270
of joint debt. . . 371
REVOCATION,
of suretyship 87
of guaranty. . . . 346
of guaranty by dissolution of partnership. 361
of continuing guaranty 367
of guaranty — death of guarantor 36S
S.
SALE,
of mortgaged premises by mortgagor — rights of mortgagee ■• 12
of real estate — extra-territorial Mi
of real estate by guardian. 261
failure to sell, by sheriff 325
of goods — liability of third party 39S
SATISFACTION,
of debt releases guarantor 361
see " Payment."
SCHOOL TREASURER,
liabiliey on bond of n, 301
SCOPE OF CONTRACT,
a surety cannot be held beyond the scope of his contract 66
construction of contract — at law. . 67
construction of contract — in equity. 68
liability of surety for past defaults of principal 69
surety's liability limited to a fixed time 70
time limited to a subsequent period 71
employment or condition of principal changed 72
sureties in legal proceedings — order of liability 73
surety only liable for penalty of the bond with accessories- ... 74
40
626 Index.
SCOPE OF CONTRACT— ConHnuerf. Sec.
misappropriation of funds by principal. . 75
increase of funds in the hands of the principal 76
surety may limit his liability. 77
forged signatures 78
additional employment imposed on the principal 79
act of principal not in the line of his business 80
becoming surety for the payment of rent 81
tenant holding over. . . 82.
principal associating with others. 83
several principals — partnership. . . 84
death of surety — effect. . . 85^
construing joint obligation as several 86
revoking suretyship. . . . 87
default of principal 88
revival of surety's liability 8^
part payment by one of several and joint debtors 90
absence of principal from the State 91
disability of principal . . 92
conflict of laws. . . 93
surety only bond under 285
see " Contract."
SEALS,
of corporations — presumption n, 28
more signatures than seals — effect. . 53
blanks in sealed instruments — parol authority to fill up 56
two or more obligors may adopt one seal 29S
important consideration — in guaranty. . 341
guaranty under seal — negotiability of 358
revocation of seal guaranty. . 367
SECURING THE DEBT OF ANOTHER,
pledging property for another's debt 18
SECURITY,
compelling creditor to resort to 149
subrogation of creditor to surety's. 151
subrogation of surety to creditor's 152
surety may claim what. . . 153
when surety can take. . . 154
stranger paying debt. . . 155
see " Collateral Security."
SET-OFF,
rights of surety and principal 144
■when surety owes principal . . 159
rights of surety to set-off 164
Index. 627
SHERIFFS AND CONSTABLES, Sec.
effect of judgment against principal n, 65
negligence of creditor releasing n, 128
giving an additional bond 308
defaults of — liability of surety 322
scope of surety's liability. . 323
levying on wrong property 324
liable for ministerial duties. . 325
duty to State and to persons 326
limit of surety's liability 327
liability of surety after term expires 328
SIGNATURE,
place of. . . . 48a
more signatures than seals — effect 53
effect of forged signatures. . . . ; 78
addition to notes 110
paid to induce. . 126
conditional 129
of note — one forged 366
guaranty of, forged 371
SIGNING,
of bond not ratification of promise to pay n, 24
by sureties, names not appearing in bond 53
principal not signing — name in body of the bond 54
of surety upon condition — notice to obligee 51
surety signing as principal— effect. 58
forged instrument by surety. . 78
surety signing on condition. 129
by surety — implied contract. . . 301
indorsing note in blank 347
upon condition 35O
STATE,
contract of, relation to officer 313
not responsible for its officers 314
subrogation of surety, on official bond 338
subrogation of bail. . . 432
STATUTE,
may fix the term of the surety. 70
manner of discharge of surety n 93
death of principal — effect of statute as to filing claim 172
death of principal — statute concerning contribution. 192
guardian's bond not complying with 259a
prescribes the duties of administrator and guardian 261
as to election of officer. 283
violation of, in taking interest on deposits by officer 318
liability of principal under. 32o
628 Index.
STATUTE— Con iinMed. »ec.
construing public officer's bond with reference to 321a
imperative — effect on officer. . . 325
as to surety companies. . 438
cannot fix rate company may charge 439
imposing penalty — surety companies. . 440
STATUTE OF FRAUDS,
application of. . . 373
when a promise is within. . 374
effect of.. . . 375
incapacity of principal debtor. . 376
new consideration 377
consideration for promise. . . 378
third party taking debtor's property 379
when third person is not liable 380
original consideration. . . 381
oral promise to indemnify another. 382
indemnity contracts in general. 383
consideration for promise to pay debt of another 384
novation. . . 385
promise to pay debt of another. . 386
promise to debtor to pay his debt 387
to whom credit is given 388
indorsing and executing notes for another 389
assignment of promissory notes. . 390
agreeing to pay debt of another 391
relinquishment of a lien 392
promise to perform the obligation of another 393
del credere contracts. . 394
to whom promise must be made 395
contracts for the benefit of the promisor 396
special promise 397
sale of goods. . . . 398
joint liability 399
oral contract of insurance. . 400
to answer for the torts of another. 401
indemnity to bail by third party. 416
STATUTE OF LIMITATIONS,
revival of contract. . . 89
part payment by one of several and joint debtors 90
payment of barred debt by joint debtor 167
debt barred against principal — rights of surety. 173
running of, between surety and principal 192
running of, between co-sureties. 211
when period commences — executor's bond. . 257
bars suit on guardian's bond. 263
time to bring suit against surety 263
Index. 629
•STATUTE OF LIMITATIONS— Cojittjmcrf. Sec,
revival of debt by surety. 270
running in favor of guarantor 371
when action is barred as to bail. 431
STRANGER,
paying debt — rights of subrogation. 155
paying debt — right of surety. . 174
STRICTISSIMI JURIS,
what it means. . . 112
surety contracts. . . . 66, et seq.
rule of applied 67
rule relaxed in case of paid sureties 67
SUBROGATION,
surety entitled to, when. 130
of surety to creditor. 157
of creditor to surety's securities 151
of surety to creditor's rights 152
when surety may be subrogated. ,, 153
stranger paying debt. . 155
when surety will not be subrogated. 156
extent of, as to surety 164
rights of surety of a surety. . 165
rights of co-sureties. . 166
rights of joint debtors. . 167
of prior surety — appeal bond. 168
of guarantor. . . 169
of surety for paying barred debt against principal 173
as to surety's estate 201
of surety on official bond. . 338
of bail in civil cases 40fi
rights of bail in criminal action 415
in criminal cases. . . 432
SUBSTITUTION,
of sureties. ... 8
forged note for prior one — effect on surety 125
of securities — effect 137
of new note — right to contribute. 204
of new bond in replevin. 239
in case of novation. 385
SUCCESSIVE,
bonds. . . . 9
sureties in judicial proceedings 168
appeal bonds 229
SUNDAY,
bail may arrest principal on 412
C30 Index.
SUNDAY CONTRACTS, Sec.
contracts of surety made on Sunday 49
guaranty of — effect. . . . 351
SUPERVISOR,
bond of 302
SURETY,
who is 1, 2, 3a
for the peace defined n, 2
whether one signed as a question of law n, 2
how bound. . . . 2
distinguished from guarantor. . . 4
contract of . . . 4
nature of his liability. . 6
substitution of 8
two sets of — when jointly liable 9
agreement as to liability among sureties 10
grantee of mortgaged premises 11
accommodation indorser as surety 14
indorser's relation. . . 16
wife mortgaging her property to secure husband's debts 19
assumption of partnership debts after dissolution by one
partner 20
joint and several makers of notes — liability 22
Infants as sureties. . 24
corporation as eurety. . 28, 30, 31
duress of. . . . 32
non-residents 33
surety and guaranty companies as sureties 34
revival of contract by. . 35
indorsing note before and after execution 36
when bound by contract. . 39
promise of — consideration. . . 40
subsequent undertaking. . . 41
obligation to obligee only. . 49
liability for wrongful delivery of instrument 51
signing bond upon condition. 51
liability for delivery of imperfect instrument 52
name not appearing in the body of the bond 53
liability of — filling blanks 57
signing as principal — liability. . 58
denial of recitals in the bond 59
denying valid appointment of principal 60
cannot deny incorporation of corporation, when 61
cannot deny court's jurisdiction. . 62
attacking bonds on collateral proceedings 63
relation to principal after judgment. 64
effect of judgment against principal 65
Index. 631
SURETY— Continued. Sec.
extent of contract 66
term of office. . 70, 71
change of principal's employment. . 72
two sets — order of liability. . 73
liability only for penalty. 74
liable for legal interest 74
measure of liability. . . 75
liability of — for misappropriation of funds by principal 75
increase of funds. . 76
limiting his liability. . 77
when released by forgery. . 78
imposing additional duties on principal. 79
liability for acts not in the line of principal's duty 80
liability for rent. . . 81
tenant holding over. . 82
principal associating with others — liability 83, 84
death of — effect. ... 85
in joint obligations 86
revocation of suretyship 87
default of principal. . 88
revival of liability. . . 89
running of the statute of limitations 90
liability of — principal out of the State 91
liabiliy of — disability of principal. . 92
discharge of principal — effect. . 94
discharge of, after judgment. . 95
legality of payment 96
application of payments. . . 97, 98, 99
change of principal's contract. . . 100, 101
alteration of instrument. . . 104
alteration of date 105
alteration of amount of note 106
changing rate of interest. . 107
changing place of payment 108
destroying identity of contract. 109
addition of another surety. . 110
changing contract of a lease Ill
liability on building contracts. . 112, 112f
extension of time — effect. . . 113
extension of time — where instrument provides for 113a
extension of time — evidence — burden of proof. 113b
discharge of, by extension of time 114
extension of time by paying usury 115
reservation of remedy against 116
extension of time without consent of surety 117
waiving discharge . . 118
giving time to one of two or more sureties — effect 120
632 Index.
SUliKIY— Continued. Sgc.
what is an extension of time of payment 121
discharged by creditor accepting new note 122
taking collateral security by creditor — effect. 123
renewal of note by forged note — effect 125
being induced by fraud to sign 126
notice of creditor of principal's dishonesty — effect 127
negligence of creditor in not availing himself of debtor's means
—effect 128
signing upon condition. . . 129
surrender of security — effect. . . 130
creditor releasing property. . . 131
failure of creditor to apply securities — effect 132
release of co-surety. . . 133
failure of creditor to sue principal 134
disaffirmance of contract by principal 135
fraud upon the principal. . 136
substitution of sureties. . . 137
payment of consideration in installments. 138
tender of payment. . 139
rights of — in general. . . 140
SURETY AND CREDITOR— RIGHTS OP,
diligence of. . . . 141
facts concealed. . . 142
facts developed subsequent to the contract 143
set-off and recoupment. . . 144
notice of default. . . . 144a
compelling creditor to bring suit. 145
effect of notice by surety to creditor to collect debt 146
creditor's promise to look to the principal only • . • 147
creditor informing the surety that the debt is paid 148
at law the surety must pay the debt 149
right of, to defend action. 150
subrogation of creditor to surety's securities. 151
subrogation of, to creditor's rights 152
what securities he can claim 153
when surety can take securities 154
subrogation of. . . . 155, 156
must first pay the debt 157
after payment — rights of surety against principal 158
relation as debtor and creditor 159
fraudulent conveyance by principal. 160
as to exemptions of principal 161
when surety owes principal 162
payment of judgment. . 163
extent of subrogation. . . 164
of a surety. . . 165
Index. 633
SURETY AND CREDITOR— RIGHTS OF—Continued. Sec
co-sureties. . . 166
succeeding sureties.. . . 168
defense in courts of law or of equity 170
judgment against surety alone. 171
death of principal — effect. . 172
debt barred against principal — effect 173
liability of principal to surety. 174
paying debt before due. 175
SURETY AND GUARANTY COMPANIES,
may act as sureties. 34
a convenience to the community 34
contract of foreign corporation not licensed is void 370
statutes affecting. . . 438
statute as to method in which shall justify n, 438
statute as to act of agent. 438
statute as to indemnity from principal 438
statute as to petitioning for release from liability 438
statute as to revoking license of n, 438
may take assignment of claim. n, 438
term " surety companies " construed. . n, 438
statute as to producing certificate of authority 438
bond need not state authority to do business 438
statute cannot fix rates may charge 439
penalty statute — construction of. . 440
foreign surety companies. . 441
presumption of solvency of foreign corporation n, 441
proof of solvency of foreign corporation unnecessary n, 441
may execute guardian's bonds n, 441
estoppel of foreign company. n, 441
rule that surety a favorite of the law not applicable to surety
companies. . . . 442
construction of contracts of. 442
building contract changed. . . 442
contract treated similar to insurance contract 443
contract treated as insurance contracts — application of prin-
ciple to agents — premiums. . 444
bond and application construed together 445
apparent scope of authority of agents 446
acts of general agents. . 446
agent with written authority. . 447
agent with letter of attorney 447
when agent may exercise judgment. 447
notice to of default — provision as to construed — waiver. 448
where company succeeds to assets of another company 449
634 Index.
SURETY AND PRINCIPAL— RIGHTS OF, Sec.
part payment by surety. 176
must be under legal obligations to pay 177
how to proceed against principal 178
to one partner. . . 179
giving his own note in payment 180
payment out of surety's property 181
when right of action is complete 182
liability of principal for surety's costs 183
when consequential damages may be recovered 184
payment of usury 185
what amount can be collected from principal 186
joint suit by sureties. . 187
payment of individual judgment. 188
right to take indemnity from principal 189
payment by, when the principal is not liable 190
voluntary payment by. . 191
running of the statute of limitations as to the principal 192
relief of, in equity. 193
right to contribution. . 194
payment by his own note 195
right to enforce contribution at law 196
enforcement of contribution in equity 197
cannot speculate to the injury of his co-surety 198
contribution of surety of a surety 199
liability to contribute is several 200
liability of surety's estate. . 201
remedy against co-surety before payment 202
under different instruments — contribution 203
substitution of new note. . 204
may limit liability. . 205
rights of accommodation indorser. 206
in legal proceedings — right to contribution 207
idemnity to one surety. 208
liability to contribute on successive bonds 209
parol evidence to identify 210
running of statute of limitations between co-sureties 211
bankruptcy of — right of contribution 212
SURETY IN LEGAL PROCEEDINGS,
order of liability 73
discharge of, on attachment bonds. 213
exoneration of . . 214
attachment — judgment of non-suit — effect. . 215
release of attachment lien — effect. 216
liability on attachment bonds. 217
bringing new parties in attachment — effect on surety ,218
trespass by officer — release of. 219
Index 635
SURETY IN LEGAL PROCEELINGS— rontinwed. ^kc.
delivery bond — right of surety to property 220
void bond — rights of. . . 221
attachment — damages. . . 222
conclusion of. . . 223
appeal bond — discharge of surety. . 224
appeal to special court 225
change of issue and parties. . 226
increase of claim on appeal 227
agreement of litigants. . 228
successive appeal bonds. . . 229
when breach is made. • 230
liability on indemnity bonds. 231
injunction bonds 232
when suit may be brought. 233
liability joint and several. . 234
what law governs surety's liability 235
dissolution of injunction. . 236
concluded by judgment against principal 237
liability on replevin bond. . 238
discontinuance of replevin suit. 239
substitution of new parties in replevin suit 240
varying the terms of a replevin bond 241
SURETY, JUDICIALLY APPROVED.
of executor and administrator. . 242
when concluded by judgment. . 243
liability for income on real estate 244
liability for extra-territorial acts of principal 245
liable only for official acts. 246
new and additional bond. . 247
liability after discharged. . 248
on joint bond. . . 249
allowances by administrator to intestate's widow 250
administrator or executor being debtor to the estate 251
common law rule when administrator or executor is debtor to
the estate.
252
general liability — on administrator's bonds. 253
administrator and executor on different estates 254
executor acting in fiduciary capacity. 255
failure of administrator to report inventory 256
release of, on administrator's bond 257
when right of action arises against an administrator's surety- • 258
of guardians — general liability. . . 259
additional security given by guardian's 260
guardian selling real estate. • • ••'; 261
discharge of — guardian's bond. . . " '^' •"'"!.■ ^^^
termination of liability — guardian's bond. •* •' ? ' i
03 (J Index.
SUJIETY, JUDICIALLY Al^FROVED— Continued. Sec.
when action arises against surety on guardian's bond 264
estoppel of, by judgment against guardian. 265
estoppel by recitals in bond 266
of sureties on bond of joint guardians 267
on joint bond. . . 268
exteut of liability on guardian's bond 269
revival of debt by. . 270
liability of, on receiver's bond 271
right of action against, on receiver's bond 272
when concluded by judgment against receiver 273
liability for funds in tlie hands of the receiver 274
liability on new bond of receiver 275
extent of liability on receiver's bond 276
liability on assignee's bond. . 277
estoppel of — on assignee's bond. . 278
giving new bond by assignee 279
default of assignee. . 280
discharge of — assignee's bond. . 281
SURETY OP PRIVATE OFFICER,
liability on private oiRcial bond. 282
continuing liability on private official bond. 283
restricting liability by recitals. 284
as to the scope of the officer's employment 285
increase of the capital stock of the corporation 285
discharge of, by fraud. 287
bond covering prior defaults. 288
principal his own successor. 289
continuing principal. . . 290
delinquency of obligee. . . 291
failure to discharge delinquents. 292
failure to notify surety of default 293
covenant not to sue one of the sureties 294
accord and satisfaction of officer. 295
notice of surety's withdrawal. 296
discharge by acts of the obligee 297
action on the officer's bond 29'i
concluded by recitals in the bond of an officer 299
liability for loss of money by officer 300
SURETY OF PUBLIC OFFICER,
liability of public official bonds 301
liability on prior defaults. 302
presumption as to sureties on second official bond 303
bond of de facto officers 304
officers holding over. . . 305
death of public officer 306
money used by officer to pay previous delinquencies 307
giving second bond in same term 308
Index. 637
fRETY OF PUBLIC OFFICER— Continued. Sec.
giving bond without statutory authority 309
general and special bonds. 310
liability only for official acts 311
subsequently imposed duties. . . 312
subsequently imposed duties by the legislature 313
State not responsible for its officers 314
forgery of prior surety's name 315
money lost by principal. 316
depositing public money in bank 317
making profits on public funds. . 318
interest recovered after breach. 319
liability of surety for penalty 320
estoppel by judgment 321
on sheriff's and constable's bond 322
scope of liability on sheriff's and constable's bond 323
sheriff levying on wrong property 324
liability for ministerial duties. . 325
officer's duty to State. 326
limit of liability. . 327
liability after term expires. 328
liability on bond of clerk 329
liability for clerk's accounting 330
failure of clerk to pay over 331
money paid into court. 332
delinquencies of clerk 333
of justice of the peace. . 334
of police officer. . . . 335
of notary public. . . 336
of tax collector 337
subrogation on official bond. . 338
when bound for costs. . 384
promise to indemnify 395
different sets of — liability. . . 410
SURETY OF SURETY,
rights of subrogation. 165
contribution by . . . 199
SURETYSHIP,
defined n, 2
distinguished from guaranty. . . 4
how created 5
questions of consideration. . . 39
surety's promise being a consideration 40
moral obligation will not support. 40
subsequently contracted. . . 40, 41
alteration of contracts of. 55
may act retrospectively. . 69
638 Index.
SURETYSHIP— Conftnuerf. Sec
death of surety — effect 85
revocation 87
conflict of laws 93
on condition. . . . 129
in general 140
between surety and principal 177
SURRENDER,
of old note for new — consideration 37
of securities by surety at the instance of the principal — effect- . 51
old note for new which is forged — effect on surety 125
of security by creditor — effect. . 130
of security — discharge of guarantor. . ' 362
of principal by bail. 421
of principal, by bail after judgment 422
SURROGATE,
liability for loss of money 300
T.
TAX COLLECTOR,
misappropriation of taxes by. 307, 337
liability of sureties. . . 337
where bond of is lien on real estate n, 337
prior defalcations not covered. 337
estoppel to deny principal was collector 337
TAXES,
misappropriation of, by collector. 307
extending of time to pay by legislature 313
acts of sheriff as to. . 323
tax collector — liability of sureties. 337
TENDER,
of payment 139
of payment by surety. . . 158
of payment of attachment judgment — effect on surety 224
what is legal — estoppel to raise. 332
TERM OF OFFICE,
how fixed 70
time limited to a subsequent period 71
death of surety — effect. . . 85
duration of surety's liability. . 282
continuing liability of surety. 283
successive terms — liability of surety 302
Index. BSD-
TERM OF OFFIC^E— Continued. Sec.
holding over. . . 305
added to by the legislature. 305
expiration of — liability of surety. 328-
money paid to clerk 331
THEFT,
of money from public oflacer 316
TIME,
of term of office. . 70, 71
extension of— payment 114, 115, 116, 117, 118, 119
for extension must be certain 119
limited on private official bonds 282
official time of surety. . 284
surety cannot be bound for a longer time than specified 285
expiration of term — surety's liability. 328
notice of default — what is a reasonable time 353
TORTS,
attachment of goods — tort of officer 222
of officer in levying execution. 231
by police officer. . . 335
of others — guaranty 401
TREASURER,
liability of surety on bond 297
of county — special and general bonds 310
of county — liability for negligence 314
TRESPASS,
by officer in attachment — effect on surety 219
levy on exempt property 231
of justice of the peace 334
TROVER,
effect of judgment against principal n, 65-
see " Surety in Legal Proceedings."
TRUSTS,
indemnity of surety — trust for creditor. . 151
co-surety taking property in trust — right of contribution 208
execution of — will. . 246
administrator debtor to the estate. 251
of administrators 261
U.
ULTRA VIRES CONTRACTS,
of corporations 30
as to consideration 35
contract of guaranty — incapacity of debtor 380
C40 Index.
UNITED STATES MARSHAL, Sec.
false arrest by n, 323
see " Marshal."
UNLIQUIDATED DAMAGES,
set-off of n, 144
USURY,
as consideration for extension of time of payment 115
paid by surety. . . 185
V.
VENUE,
change of, on appeal — effect on surety's liability 225
change of — liability of bail. . 423
VOLUNTARY BONDS,
given by public officer — effect. . 309
VOLUNTARY PAYMENT,
by surety. . . 177
W.
WAIVER,
of duty of employee to furnish reports n, 72
of discharge by surety. 118
of fraud by creditor. . 125
officer may waive delivery of property — attachment 214
by agent of company of notice of default n, 446
of provision as to notice of default to company 448
WANT OF CONSIDERATION,
see " Consideration."
WASTE,
by administrator — surety's liability 244
WEAPONS,
taking deadly weapons from prisoner — liability of officer 323
WIDOW,
allowances to, by administrator 250
WIFE,
mortgaging separate property of. 19
guaranty by not in writing void n, 374
see " Husband and Wife."
WILLS,
probate of, in another State. 245
WITNESS,
evidence that person signed as 48a
[Total Xumber of Pages 656.]
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