m r 1 ill 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 '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 $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, 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 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 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 '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 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 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« 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.] UNIVERSITY OF CALIFORNIA LIBRARY Los Angeles Thb book is DUE on the last date stamped below. 41585 UC SOUTHERN REGIONAL LIBRARY FACILITY 1 1 mill III I AA 000 856 710 9