Cornell University Library KF 1045.C57 Handbook of the law of suretyship and gu 3 1924 018 848 436 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018848436 t$t §)orn6ooft ^vke Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows: 1. ® Bviecinet statement of feabing prineipfes in Bfacfc fetter tgpe. , , 2. (& more ertenbeb commentary efttcibatmg t0e prmcqrfe*. 3. (Itotee anb autfiortties. Published in regular octavo form, and sola at the uniform price of $3.75 per Dofume, incfubing beftoere. Bound in American Law Buckram. 1. Norton on Bills and Notes. (3d Edition.) 2. Clark's Criminal Law. (2d Edition.) 3. Shipman's Common-Law Pleading. (2d Edition. \ 4. Clark on Contracts. (2d Edition ) 5. Black's Constitutional Law. (2d Edition.) 6. Fetter on Equity. 7. Clark on Criminal Procedure. 8. Tiffany on Sales. 9. Glenn's International Law. 10. Jaggard on Torts. (2 vols.) 11. Black on Interpretation of Laws. 12. Hale on Bailments and Carriers. 13. Smith's Elementary Law. 14. Hale on Damages. 15. Hopkins on Real Property. 16. Hale on Torts. 17. Tiffany on Persons and Domestic Relations. 18. Croswell on Executors and Administrators. 19. Clark on Corporations. (2d Edition.) 20. George on Partnership. 21. Shipman on Equity Pleading. 22. McKelvey on Evidence. (2d Edition.) 23. Barrows on Negligence. 24. Hughes on Admiralty. 25. Eaton on Equity. 26. Tiffany on Principal and Agent. 27. Gardner on Wills. 28. Vance on Insurance. 29. Ingersoll on Public Corporations. 30. Hughes on Federal Jurisdiction and Procedure. 31. Childs on Suretyship and Guaranty. In preparation: Handbooks of the law on other sub/ects to be announced later. CpufifteBeb ftnb for safe fie Werf (puBftB&ins Co., gt. (pAuf, (gttnn. C5855a HANDBOOK OF THE LAW OF SURETYSHIP AND GUARANTY By FRANK HALL CHILDS, LL.B. LATE LECTURER OK SUBETTSHIP AND GUARANTY, CHICAGO-KENT COLLEGE OP LAW ST. PAUL, MINN. WEST PUBLISHING CO. 1907 Copyright, 1907, BY WEST PUBLISHING CO. Childs' Subetyship. PREFACE. The aim of this work is to present the principles of the mod- ern law of Suretyship completely and correctly, in a concise and systematic form, for the use of the practitioner and student. At a very early period in the world's history it was found that complete trust could not be placed in human beings, and, there- fore, that security was desirable; hence, this is one of the oldest branches of the law, and has engaged the attention of the courts from an early date. In the Book of Proverbs, eleventh chapter and fifteenth verse, it is written, "He that is surety for a stranger shall smart for it; and he that hateth suretyship is sure," which shows that prior to the year 1000 B. C. it had been discovered that undesirable consequences were liable to result to one who entered into the relation. The hostages given in ancient times to secure the performance of treaties were, in a sense, sureties who answered for a de- fault, not with their property, but with their lives. With the growth of the credit system,, contracts of suretyship have be- come more common and important, and the numerous rights involved make the subject a very technical one. The names of cases which are to be found in collections of cases on this subject are printed in the notes in capital let- ters. F- H. C. Chicago, June, 1907. (v)* TABLE OF CONTENTS. CHAPTER 1. DEFINITIONS, PARTIES, DISTINCTIONS, AND CLASSIFICA- TIONS. Section Page -1-11. Definitions of Suretyship, Guaranty, and Parties Thereto 1-6 - 12. Distinctions between a Surety proper and a Guar- antor 7-10 - 13. Distinctions between a Surety proper and an In- dorser 10 _ 14. Distinctions between a Guarantor and an Indorser 11-12 -15. Distinctions between a Surety and an Insurer.... 12-13 -16. Distinctions between Guaranty and Warranty.... 13-14 -17-22. Classification of Suretyship 14-19 - 23-34. Classification of Guaranties 20-23 CHAPTER II FORMATION OF THE CONTRACT. 35. Essentials of the Contract 24 36-40. Offer and Acceptance 25-34 ' 41. Delivery of Contract 34-36 42-44. Signing on Condition , 36-43 45. Failure of Principal to Execute Contract 43-44 46-47. Formality of Contract 44^47 48. Qualification of Liability 47-48 49-51. Consideration 48-59 52-53. Competency of Parties 59-64 54. Fraud 64-71 55. Duress 71-72 56. Illegality 72-73 57-60. Statutory and Voluntary Bonds 73-76 61-62. Forged and Unauthorized Signatures 76-77 63-66. Agency 77-80 67. Conflict of Laws 80 68. Change of Relation 81-82 Childs' Suretyship. (vii) vm TABLE OF CONTENTS. CHAPTER DX THE STATUTE OF FRAUDS. Section Pa S e 69-72. Writing Required 83-8T 73. Construction of Statute 87 74. Oral Contracts Not Void 87-88 75. Implied Promise of Principal Within Statute 88-89 76-86. Promises Not Within Statute 89-106 87-88. The Memorandum 106-111 89. Conflict of Laws 112 90. Pleading the Statute 112-113 CHAPTER IV. CONSTRUCTION OF THE CONTRACT. 91. Rules 114-125 92-93. What Constitutes a Guaranty 125-131 94. Conflict of Laws 131 CHAPTER V. RIGHTS AND LIABILITIES AS BETWEEN THE CREDITOR AND THE SURETY. - 95-97. Surety's Liability to Creditor 133 - 98-100. Surety's Right to Notice 133-146 101. Surety's Rights After Judgment 146-147 . 102-104. Surety's Rights as Affected by Creditor's Ignorance of the Relation 148-153 105. Surety Remains Liable by Consenting to Subse- quent Dealings between Principal and Creditor. .153-155 106. Discharge of the Contract — In General 155-156 107. By Alteration 157-170 108. By an Extension of Time 170-185 109-110. Termination of Liability by Expiration of Time. .186-191 111-112. Surety's Right to Terminate Contract 191-192 113-115. Successive Bonds 192 116. Surety's Liability Terminated by Default of Prin- cipal 192-205 117-121. Termination of Liability by Change in Number of Parties or by Death 205-210 122. Discharge of Surety by Performance 210 123. Performance Prevented by Creditor or Obligee. . . 210 124. Beginning of Surety's Liability 210 .125. Compliance with Conditions 210 TABLE OF CONTENTS. IX Section Page 126. Guaranties of Collection 210-224 127. Surety Discharged by Relinquishment or Loss of Security 224-231 128. Surety's Liability as Affected by Liability of Prin- ■4 cipal 232 129. Surety's Liability as Affected by Destruction of t Property 232-234 13 242-254 133. Discharge by Duress, Fraud, or Illegality in the Principal's Contract 254-25") 1 134. Waiver of Defenses 250 .135. To Whom Surety is Liable 256-260 136-141. Estoppel of Surety 260-265 142. Surety Discharged by Creditor's Promise to Resort to Principal 265 143. Surety Discharged by Information that Debt is Paid 265-266 144-147. Amount for which Surety Liable 266-271 148. Surety's Right to Assert Counterclaims 272-273 149-150. Action Against Surety 273-276^ 151-152. Subrogation 276-291 CHAPTER VI. RIGHTS AND LIABILITIES OF THE SURETY AND OF THE PRINCIPAL AS TO EACH OTHER. 153-155. Surety's Right to Indemnity 292-303 156-158. Proceedings to Enforce Indemnity 303-306 159. Principal's Defenses against Surety. . -. 306-314 160. Amount Recoverable by Surety 314-318 161. Surety's Application of Security 318-319 CHAPTER VTI. RIGHTS AND LIABILITIES OF CO-SURETIES AS TO EACH OTHER. 162. Who Are Co-Sureties 320-324 163. Contribution— In General 325 164. What Is Payment 325-330 165-167. Amount Recoverable 331-336 168471. Suit for Contribution 336-340 172-174. Defenses 340-350 ^--175. Subrogation 350-353 TABLE OF CONTENTS. CHAPTER VUL PARTIES TO NEGOTIABLE INSTRUMENTS OCCUPYING THE RELATION OP SURETIES. _ n Section rage 176. Indorsers In General 354 177. Drawer 354-358 178-180. Irregular Indorsers 358-364 181. Accommodation Parties 364-366 CHAPTER IX. OFFICIAL BONDS. 182. Wrongful Acts of Public Officers 367-369 183-184. Errors by Public Officers 370-372 185. Contracts Made by Public Officers as Agents 372 186. Private Transactions of Public Officers 372-373 187. Deputies 373 188. Loss of Funds 374-375 CHAPTER X. JUDICIAL BONDS. 189. Executors' and Administrators' Bonds 376-378 190. Guardians' Bonds 378-379 191. Appeal Bonds 379-381 192. Attachment Bonds 381-383 193. Injunction Bonds 384-385 194. Replevin Bonds 385-387 CHAPTER XI. BAIL BONDS AND RECOGNIZANCES. 195-196. Definitions 388,389 197. Rights and Liabilities in General 390-391 198-200. Custody and Surrender of Principal 391-393 201. Discharge of Bail — In General 394 202. Discharge by Performance 394-396 203. Discharge by New Bond or Recognizance 397 204-205. Discharge by Act of God or by Act of Law 397-399 206. Forfeiture 400-401 APPENDIX. (Pages 403-415.) t HANDBOOK OF SURETYSHIP AND GUARANTY. CHAPTER I. DEFINITIONS, PARTIES, DISTINCTIONS, AND CLASSIFICA- TIONS. 1-11. Definitions of Suretyship, Guaranty, and Parties Thereto. 12. Distinctions between a Surety proper and a Guarantor. 13. Distinctions between a Surety proper and an Indorser, 14. Distinctions between a Guarantor and an Indorser. 15. Distinctions between a Surety and an Insurer. 16. Distinctions between Guaranty and Warranty. 17-22. Classification of Suretyship. 23-34. Classification of Guaranties. r DEFINITION— SURETYSHIP— BROADEST SENSE. 1 1. Suretyship, in its broadest sense, is the relation occupied by a person liable for the payment of money or for the performance of an act by another, such liability being collateral as to such other person, and who is liable to suffer loss in event of the failure of such other person to pay or perform, but whose liability is terminated at once, fully and completely, if such other person does pay or perform. SAME— SURETY— BROADEST SENSE. Z. A surety, in the broadest sense, is the person collaterally liable for such payment or performance by another. 1 i In SMITH v. SHELDEN, 35 Mich. 42, 24 Am. Rep. 529, a sure- ty is said to be "a person who, being liable to pay a debt or perform Childs' Stjkettship— 1 2 DEFINITIONS, PARTIES, DISTINCTIONS. (Ch. 1 SAME— SURETYSHIP— TECHNICAL SENSE. 3. Suretyship, in its narrower sense, is a legal relation, bas- ed upon eontract between competent parties, in which one person undertakes, as the object of such contract, to answer to another for the debt, default, or miscar- riage of a third person; the third person's liability to the second person being thus similar to that of such first person. SAME— SURETY— RESTRICTED SENSE. 4. A surety, in the narrower sense, is the person who under- takes, by an express contract for that very purpose, to become liable for the debt, default, or miscarriage of another; the effect of the contract being that the liability of the latter is similar to that of the surety. SAME— GUARANTY. 5. A guaranty is an undertaking that another person will pay a debt or perform a duty; such other person be- ing primarily liable for such payment or performance. SAME— GUARANTOR. 6. A guarantor is the person who undertakes that another will pay or perform. SAME— PRINCIPAL. The principal is the person primarily liable upon a con- tract of suretyship. an obligation, is entitled, if it is enforced against him, to be indem- nified by some other person, who ought to have made payment or performance before the surety was compelled 1 to do so." See, to the same effect, Wendlandt v. Sohre, 37 Minn. 162, 33 N. W. 700. "Surety" is a word of two syllables only, but frequently being mis- pronounced as if containing three. § 8) DEFINITION. SAME— CREDITOR OR OBLIGEE. 8. The creditor or obligee is the person who can enforce pay- ment or performance by the principal and surety. Suretyship. Suretyship, 2 in its broadest sense, exists in every . instance where there is one person primarily liable for th« payment of money or for the performance of some act, and a second per- son, as between himself and the one primarily liable, expects to pay or perform in event of the failure of the other to do so, although his expectation as to the one primarily liable can- not affect his liability to the person having the right to enforce such liability. In every instance of suretyship, upon payment or performance by the principal, all liability on the part of the surety at once ceases; whereas payment or performance by the surety, while discharging the debt or duty so far as the creditor is concerned, still leaves an obligation upon the part of the principal to reimburse the surety. 3 This collateral lia- bility of the surety may be said to be the essence of the re- lation. Suretyship, in its broadest sense, includes suretyship in its- narrower sense. A surety in the narrow sense, a guarantor,* an indorser, 5 the drawer of an accepted bill of exchange, 6 and accommodation parties, 7 are all sureties in the broadest sense, as is a person who mortgages or pledges his property to secure another's debt, but without incurring personal liability ; 8 while a surety in the narrow and technical sense is one who makes 2 In the civil law of the province of Quebec, suretyship in connec- tion with a negotiable instrument is called an "aval." Paterson v. Lynch, 1 Low. Can. 219. In Scotch law, suretyship is known as "cau- tionry." Black's Law Diet 182. See SMITH v. BANK OF SCOT- LAND, 1 Dow, 272. s See post, §§ 68, 154. * Stearns, Law of Suretyship, p. 2. 5 Bryant v. Rudisell, 51 Term. (4 Heisk.) 656. See post, § 176. In a bill or note, each subsequent party to the maker and acceptor is a surety for every prior one. CARTER v. BLACK, 20 N. C. 561. e Norton, Bills & Notes (3d Ed.) p. SO. t Bradford' v. Hubbard, 8 Pick. (Mass.) 155. See post, § 181. s See post, § 22. 4 DEFINITIONS, PARTIES, DISTINCTIONS. (Ch. 1 an express contract whose chief object is to become liable, so far as the creditor or obligee is concerned, in a manner similar to that of the principal, and is usually, though not necessarily, jointly liable with him on the same contract and to the same extent. Such would be the case where two per- sons sign a promissory note, and one only receives the money for which it is given. The one receiving the money would be the principal. The other signer of the note, who receives nothing, and adds his name merely to secure the repayment of the money by the principal, is a surety in the limited sense. The surety expects the principal to pay the note when due; but the holder of the note, if it be not paid at maturity, can collect the entire amount from the surety, leaving the lat- ter to have recourse to the principal for indemnity. 9 Suretyship, in its broadest sense, includes, not only contracts whose chief object is to secure the creditor, but also those whose chief object is to accomplish some other purpose, but whose effect is to make one person liable to suffer a loss if another person, whose duty it is in the first instance to pay or perform, does not do. so. As an illustration of a contract of the latter kind, suppose the owner of a house worth $2,000 mortgages it for $1,000. Subsequently he sells it, receiving $1,000 in cash; the grantee assuming the mortgage debt of $1,000 as part of the purchase price. The grantee becomes, as between the grantor and grantee, primarily liable for the mortgage debt, and should pay it when due, and the grantor expects the grantee to pay the debt, and to relieve him from all further liability ; but as the transaction between the gran- tor (mortgagor) and the grantee cannot affect the rights of the mortgagee, the latter still retains the right to enforce pay- ment from the grantor, who thus occupies the position of a surety for the mortgage debt assumed by the grantee, though this was not the chief object of their contract, the chief object being the sale of the house. 10 A surety is sometimes, in the older cases, designated as the security. 11 He is, in some particular contracts, given oth- • See post, § 154. io See post, § 20. ii In Scotch law, a surety is called a "cautioner." Black's Law Diet. 182. See MACDOUGALL v. FOYEE, 15 Fac. Dec. 579. §§ 9-11) DEFINITION. 5 er designations; thus the surety on a contract whose chief object is to secure the temporary freedom of an arrested per- son is designated as "bail." 12 The principal arid surety together are known by different designations, according to the contract entered into. They are frequently called the "promisors." In a sealed instrument, they are. designated as the "obligors." Where the principal and surety have signed a promissory note, they are known as the' "makers." The Creditor or Obligee. The person who can enforce the contract of suretyship is •known by different designations, according to the kind of con- tract entered into. If the object of the contract is the pay- ment of a sum of money, he is called the "creditor." If the contract be a sealed instrument, he is called the "obligee." If he is a party to a promissory note, he is called the "payee" or "holder." 18 He is frequently called the "promisee," be- ing the person to whom the promise is made. In the case of a guaranty, he sometimes is called a "guarantee." DEFINITION— CO-SURETIES. Where two or more persons are bound equally upon a eon- tract of suretyship, they are known as "co-sureties." SAME— CO-GUARANTORS. 10. Two or more persons equally bound upon a contract of guaranty are known as "co-guarantors." SAME— SUPPLEMENTAL SURETY. 11. A supplemental surety is one who becomes a. surety for a surety. If a promissory note be signed by A., B., and C, and A, receives the entire sum for which the note was given, B. and 12 See post, c. XI. is Norton. Bills & Notes (3d Ed.) p. 26. 6 DEFINITIONS, PARTIES, DISTINCTIONS. (Oh. 1 C. become sureties, and, being equally liable to the creditor for the repayment of the money, are designated as co-sureties. If, however, D. should add his name with the understanding that he was not to be a co-surety with B. and C, but to be a surety for them as well as for the principal, he would become a supplemental surety 14 for B. and C., who would be, as to him, principals; 15 and, in event of his being compelled to pay the note, he could demand full indemnity from them, 16 whereas, if B. and C. pay the note, they have no right to call upon D. to reimburse them for any part of the amount paid, 17 their only recourse being upon A., their principal. 18 Every indorser upon a negotiable instrument occupies the position of a supplemental surety for all prior indorsers. 18 A person can become a supplemental surety by a separate contract, as would be the case in successive appeal bonds. 20 14 Robertson v. Deatherage, 82 III. 511 ; Baldwin v. Fleming, 90 Ind. 177; McNeil v. Sanford, 42 Ky. (3 B. Mon.) 11; McMahan v. Geiger, 73 Mo. 145, 39 Am. Rep. 489; Darrah v. Osborne, 7 N. J. Law, 71; Wells v. Miller, 66 N. T. 255; Oldham v. Broom, '28 Obio St. 41 ; SHERMAN v. BLACK, 49 Vt. 198. It is not necessary for a person who intends to become liable as a supplemental surety on- ly to indicate his intention by adding any qualifying word after his signature. Paul v. Berry, 78 111. 158; Bowser v. Rendell, 31 Ind. 128; Williams v. Boyce, 11 Mo. 537. One who signs at the request of the principal and for his sole benefit is not a supplemental sure- ty. Monson v. Drakeley, 40 Conn. 552, 16 Am. Rep. 74. is CRAYTHORNE v. SWINBURNE, 14 Ves. 160. i« See post, c. VI, note 66. if See post, § 162. Those jointly bound are sureties for each oth- er. See infra, note 66. Hence a surety for two principals would occupy the position of a supplemental surety as to each for the oth- er's share of the debt. is See post, § 154. 19NEWCOMB v. RATNOR, 21 Wend. (N. Y.) 108, 34 Am. Dec. 219. 20 Where the owner of mortgaged premises conveys them, the grantee assuming the mortgage, and the grantee then conveys the premises to a third person, who also assumes the mortgage, the last grantee becomes the principal (see note 10, supra), the second gran- tor (first grantee) is his surety, and the first grantor (mortgagor) occupies the relation of a supplemental surety, being a surety for a surety (second grantor). MARSH v. PIKE, 10 Paige (N. Y.) 595. Where a person becomes a surety on a forthcoming bond, the prin- cipal in the bond being a surety on another instrument, the surety § 12) SURETY AND GUARANTOR DISTINCTIONS. 7 DISTINCTIONS BETWEEN A SURETY PROPER AND A GUARANTOR. 12. The liability of a surety in the narrow sense begins on delivery of the contract. He undertakes usually to perform^ joinfly with the principal, 22 and is pri- marily liable to the creditor, 2 3 while the liability of a guarantor begins on default of the principal. 2 * He undertakes that another will perform, 2 e is not joint- ly liable with' the principalis and is secondarily lia- ble to the creditor.27 on the bond occupies the position of a supplemental surety. LEAKE v. FERGUSON, 2 Grat. (Va.) 419. 2i Wilson v. Campbell, 2 111. 493; Kirby v. Studebaker, 15 Ind. 45. 22 SAINT v. WHEELER, 95 Ala. 362, 10 South. 539, 36 Am. St. Rep. 210; Powell v. Kettelle, 6 111. 491; SINGER MFG. CO. v. LITTLER, 56 Iowa, 601, 9 N. W. 905; Read v. Cutts, 7 Greenl. (Me.) 186, 22 Am. Dec. 184; Simons v. Steele, 36 N. H. 73; Hall v. Weaver (C. C.) 34 Fed. 104. 28 SAINT v. WHEEIiER, 95 Ala. 362, 10 South. 539, 36 Am. St. Rep. 210; CASEY v. BRABASON, 10 Abb. Prac. (N. S.,'N. Y.) 368; BALLARD v. BURTON, 64 Vt. 387, 24 Atl. 769, 16 L. R. A. 664; KEARNES v. MONTGOMERY, 4 W. Va. 29 ; POOLEY v. HARRA- DINE, 7 El. & Bl. 431; MACDOUGALL v. FOYER, 15 Fac. Dec. 579. 24 ABBOTT v. BROWN, 131 111. 108, 22 N. E. 813 ; SINGER MFG. CO. v. LITTLER, 56 Iowa, 601, 9 N. W. 905. 2 s Gridley v. Capen, 72 111. 11 ; American Exchange Nat. Bank v. Seaverns, 121 111. App. 480; Griffin v. Seymour, 15 Iowa, 30, 83 Am. Dec. 39G; ROBERTS v. HAWKINS, 70 Mich. 566, 38 N. W. 575 ; RANDALL v. RIGBY, 4 Mees. & W. 130. Sometimes it is stat- ed, very loosely, that a guarantor undertakes to pay if the princi- 26Killian v. Ashley, 24 Ark. 511, 91 Am. Dee. 519; ABBOTT v. BROWN, 131 111. 108, 22 N. E. 813, affirming 30 111. App. 376 ; Mc- Millan v. Bull's Head Bank, 32 Ind. 11, 2 Am. Rep. 323; Conolly v. Kettlewell, 1 Gill (Md.) 260; Smith v. Loomis, 72 Me. 51; Par- merlee v. Williams, 71 Mo. 410 ; Barton v. Speis, 5 Hun (N. Y.) 60 ; Harris v. Eldridge, 5 Abb. N. C. (N. Y.) 278; Deming v. Board of Trustees, 31 Ohio St 41 ; Tyler v. Trustees, 14 Or. 485, 13 Pac. 329 ; Meade v. McDowell, 5 Bin. (Pa.) 195 ; Cross v. Ballard, 46 Vt. 415 ; Stewart v. Glenn, 5 Wis. 14. In some states, by statute, the prin- cipal and guarantor can be joined as defendants in one suit 27 Anderson v. Spence, 72 Ind. 315, 37 Am. Rep. 162 ; Hooper v. Hooper, 81 Md. 155, 31 Atl. 508, 48 Am. St Rep. 496; KEARNES v. MONTGOMERY, 4 W. Va. 29. 8 DEFINITIONS, PARTIES, DISTINCTIONS. (Oh. 1 These distinctions, and most of the following ones, like many distinctions in law, are more technical than real, 28 and are not of the greatest importance, yet they serve to make a little .more clear the nature of the contract entered into by a surety in the narrow sense, and that entered into by a guarantor. The distinctions become of importance when suit is brought upon the contract. A surety and a guarantor are each liable for the debt, and the terms are often used indiscriminately. 29 Each may be called upon to pay upon default of the princi- pal ; and it is sometimes difficult to determine whether the lia- bility undertaken is that of a surety or of a guarantor. All of the above distinctions may not apply to all cases, but they are apparent in most. It must be borne in mind that, while sureties of all kinds are collaterally liable from the standpoint of the principal, it is not always so from the standpoint of the creditor ; and therein lies a distinction between a surety in the narrow sense , and other sureties. A surety in the narrow sense is primarily liable to the creditor or obligee. He has made a direct prom- ise of payment or performance, the same as, or at least very similar to, that of the principal. The creditor can regard him as a principal, except so far as -he is obliged to respect the equities arising out of the position, which usually arise sub- pal does not. Technically, the guarantor does not undertake payment by himself, but that the principal will pay, though, when the act to be performed is the payment of money, a default by the principal results practically in payment by the guarantor; but if the act to be performed is other than the payment of money, as, for illustra- tion, the performance of skilled labor by the principal, the guaran- tor's contract is more clearly seen— that the principal will perform. The promisee, in such a case, might object, very strenuously, to a performance by the guarantor, as the latter might not be skilled in the work to be performed by the principal. The promisee would hold the guarantor liable in damages for a breach of his contract — that the principal would perform. •28 in Jamieson v. Holm, 69 111. App. 119, the distinction is said to be formal merely. 29 In American Radiator Co. v. Hoffman, 26 Pa. Super. Ct. 177, a party to the contract is held to be a surety, though the contract designates him a guarantor. It is not so much the name as the nature of the transaction which distinguishes it Langan v. Hewett, 21 Miss. (13 Smedes & M.) 122. See Capps v. Watts, 43 111. 60. § 12) SURETY AND GUARANTOR DISTINCTIONS. 9 sequent to the time of payment or performance. On the oth- er hand, sureties other than those in the narrow sense, such as guarantors, indorsers, etc., are recognized by the creditor as being collaterally liable to him, as well as being collaterally liable from the standpoint of the principal. An illustration may serve to make the distinctions clearer. Suppose A. applies for a loan of money, which he secures, giving his promissory note therefor. B. signs the note with A., but receives none of the money. C. writes on the back, "I guaranty payment of this note," followed by his signature. B. is a surety in the narrow sense, and C. is a guarantor. 80 The surety, by having signed the note with the principal, is a joint maker thereof. To one not acquainted with the circum- stances, he would appear to have been a borrower as much -as A. He is primarily liable on the note as soon as it is de- livered. He has promised to pay. 81 The payee can say : "B. owes me money. I hold his note." C, however, undertakes by his contract, not to pay the note, but that A. and B. will pay when it is due. At no time can the payee say truly, as in the case of B., "C. owes me money." 82 The liability of 0. does not begin until the day after the note is due. If the note has not been paid at maturity, then C.'s contra'ct has been broken, for A. and B. have not paid as he undertook they would do. The creditor, as well as every one who inspects the note, realizes that C.'s liability is secondary and accessory. If suit be brought upon the note, A. and B. can be joined as defendants in one suit, as they are as to the holder joint mak- ers ; but C. could not be joined, as he has not undertaken to be bound jointly. C. would have to be sued separately upon his special contract, and not upon the note ; nor would he be liable under the common counts. 88 He would be liable in so See post, c. IV, note 63. si McMillan v. Bull's Head Bank, 32 Ind. 11, 2 Am. Rep. 323. SI- SON v. KIDMAN, 11 L. J. R. C. P. 100, 2 Man. & 6. 810. 32 Durham v. Manrow, 2 N. Y. 533. as The contract of guaranty must be declared on specially, and cannot be given in evidence under the common counts in indebita- tus assumpsit. Emerson v. Aultman Co., 69 Md. 125, 14 Atl. 671 ; BUTCHER y. ANDREWS, Com. 473; ROZER v. ROZER, 2 Vent. 36 ; HART v. DONGFIELD, 7 Mod. 148. 10 DEFINITIONS, PARTIES, DISTINCTIONS. (Ch. 1 damages only for a breach of his contract, the measure of damages, however, being determined by the amount due upon the note which the principal failed to pay ; so that, practically, when the object of the contract is the payment of money, the liability of a surety and of a guarantor is almost the same, the chief distinction being in the remedy for a breach of the contract. The surety would be compelled to pay the note. The guarantor would be compelled to pay damages because the principal did not pay, the amount of damages being equal to the amount due upon the note. DISTINCTIONS BETWEEN A SURETY PROPER AND AN INDORSER. 13. A surety proper is not entitled to have demand made up- on the principal at maturity of the debt, nor to no- tice of the principal's default. He is liable upon the original contract. An indorser makes an independ- ent contract, 'which entitles him to have demand made upon the principal at maturity, and to notice of the principal's default. The distinctions between a surety in the narrow sense and a regular indorser of a negotiable instrument are of consider- able importance, as an indorser makes a conditional contract implied by law, 34 which entitles him to have demand made upon the principal at maturity of the debt and to be given notice of the default of the principal; 3S otherwise, he is dis- charged from all liability, both on the instrument and upon the original consideration. A surety, however, is liable upon his original contract along with the principal. He is not en- titled to have demand made upon the principal, nor to no- tice. 36 It is his debt, and he must ascertain for himself wheth- er it has been paid. s* Norton, Bills & Notes (3d Ed.) p. 107. so See post, § 176. 8 a See post, f 98. § 14) GUARANTOR AND INDORSER DISTINCTIONS. 11 DISTINCTIONS BETWEEN A GUARANTOR AND AN IN- DORSER. 14. A guarantor Is not entitled to have demand made upon the principal at maturity, nor to notice of default, unless he expressly stipulates therefor. His contract is that the principal will pay. An indorser is entitled to have demand made upon the principal at maturi- ty, and to notice of the principal's default, unless he expressly waives them. His contract is not that he will pay or that another will pay, but is a. condition- al one that he will pay if the principal does not; and his contract is made on the same paper as the prin- cipal's is. The chief object of the contract of a regular indorser is to transfer title. 37 The law implies certain conditions, as that the creditor will make demand at maturity upon the principal debtor and give the indorser notice of default; and, if these conditions are complied with, the indorser will pay. 38 These conditions may be waived by the indorser if he choose to do so. 38 The object of the contract of a guarantor is to give the creditor security. 40 He does not undertake to pay either un- conditionally or conditionally, but his contract is that the principal will pay at maturity. He may stipulate, by express agreement, for demand and notice; but, generally, he is not entitled to them as a matter of right. 41 An indorsement must be made upon the instrument transferred. 42 A guaranty may be written upon a separate paper. The contract of the guar- antor is broken as soon as the principal is in default,* as he si Norton, Bills & Notes (3d Ed.) p. 106. 3 8 Bradford v. Corey, 5 Barb. (N. Y.) 462; Norton, Bills & Notes (3d Ed.) 128. 39 Norton, Bills & Notes (3d Ed.) p. 401. 40 First Nat. Bank of San Diego v. Babcock, 94 Cal. 102, 29 Pac. 415, 28 Am. St. Rep. 94. 4i Mameron v. National Lead Co., 98 111. App. 460; HUNGER- FORD v. O'BRIEN, 37 Minn. 306, 34 N. W. 161; Brown v. Curtiss, 2 N. Y. 230 ; Overton v. Tracey, 14 Serg. & R. (Pa.) 311 ; Hubbard v Haley, 96 Wis. 578,, 71 N. W. 1030. 42 Norton, Bills & Notes (3d Ed.) p. 108. ♦Lloyd v. Matthews, 223 111. 477, 79 N. E. 172. 12 DEFINITIONS, PARTIES, DISTINCTIONS. (Ch. 1 has undertaken that the principal will pay at maturity. The contract made by the indorser is not broken at default, as there are conditions yet to be performed by the creditor before the liability of the indorser is complete, and these conditions may never be performed. It will be noticed that the distinctions between a guarantor and an indorser are of great importance. The creditor need take no action at the maturity of the debt, so far as the guar- antor is concerned, as the latter has undertaken that the prin- cipal will perform his contract, and it is the duty of the guaran- tor to ascertain whether the principal has performed; 4S but, in order to hold an indorser, it is necessary for the creditor to act promptly when the debt is due, or the indorser will be freed from liability, both on the contract of indorsement and upon the original consideration. 44 DISTINCTIONS BETWEEN A SURETY AND AN INSURER. 15. A surety undertakes to pay a sum of money, with a. con- dition that, if certain acts are performed by anoth- er, the contract shall be void. An insurer, for a val- uable consideration, agrees, subject to certain condi- tions, to indemnify the insured against loss conse- quent upon the dishonesty or default of a designated employe. 45 It is not always easy to distinguish between a contract of suretyship and a contract of fidelity or guaranty insurance. 49 is See post, § 98. 44 Norton, Bills & Notes (3d Edl) p. 365. 45 Vance, Ins. p. 595. "Guaranty insurance is an agreement where- by one party (called the 'insurer') for a valuable consideration (term- ed the 'premium') agrees to indemnify another (called the 'insured') in a stipulated amount against loss or damage arising through dis- honor, fraud, unfaithful performance of duty, or breach of contract on the part of a third person (hereinafter denominated as the 'risk') sustaining a contractual relation to the party thus indemnified." Frost, Guaranty Ins. p. 11. 4« Whether a contract is a guaranty or one of insurance does not depend upon the use of words. Seaton v. Heath, [1S99] 1 Q. B. 782. Corporations calling themselves guaranty or surety companies, but who are insurers, should be treated as insurers. Bank of Tarboro § 16) GUARANTY AND WAKKANTT DISTINCTIONS. 13 A person may become a surety for the faithful performance of duties by an officer by signing a bond for the payment of a sum of money, with a defeasance clause which stipulates that the bond shall be void if the officer performs his duties faithful- ly; " or the same person may become an insurer of an em- ployer against loss which may be sustained by reason of the improper conduct of an employe — that is, insure the fidelity of such employe. It depends very much upon the wording of the contract, and the distinction is more formal than real. So, a person may insure against loss from bad debts, or against loss from unpaid rents. The construction of a contract of- suretyship and of a contract of fidelity insurance is very much the same. DISTINCTIONS BETWEEN GUARANTY AND WARRANTY. 16. A guaranty relates to persons, to the future, is a collat- eral contract, and must be evidenced in writing to be enforceable. A •warranty relates to things, to the present or past, is a direct contract, and may be oral. In popular language the word "guaranty" is used in every instance for "warranty"; but, technically, the two contracts are quite different. A guaranty, in law, is an undertaking that a person will pay or do some act. It is collateral to the con- tract of another person, who is primarily bound. As we shall see later, such a contract, to be enforceable, must be evi- denced by writing. 48 A warranty relates to things, not per- sons, and to the present and past. There is no one collaterally bound ; and an oral warranty is enforceable. For illustration, we guaranty that A. will pay a debt; but we warrant that a horse is sound. A warranty may appear to relate to the future, as, for illustration, a warranty of the durability of a machine ; but the undertaking here is rather that the machine has been so well manufactured and of such < material that it should last a given time. So a guaranty may be worded in the pres- v. Fidelity & Deposit Co., 128 N. C. 366, 38 S. E. 908, 83 Am. St. Rep. 682. *i See form of official bond in Appendix ; and, post, c. IX. « See post, c. III. 14 DEFINITIONS, PARTIES, DISTINCTIONS. (Oh. 1 ent tense, but really referring to the future, as a guaranty that a note is collectible means that the maker will be solvent when the note is due. 49 CLASSIFICATION OP SURETYSHIP. 17. The relation of suretyship can arise from contract only; bnt the chief object, nature, and form of the contract may not be always the same. 18. Suretyship may be classified: (a) As to the form of the contract into— (1) Voluntary. (2) Involuntary, or by operation of law. (b) As to the nature of the liability into— (1) Personal. (2) Real. so 19. Voluntary suretyship arises where the chief object of the contract is to become a surety. SO. Involuntary suretyship arises -where the chief object of the contract is to accomplish some other purpose than security, but its effect is to make one of the parties secondarily liable for a debt or for the performance of an act by another. 21. Personal suretyship arises where the surety may be made to respond in damages generally for a breach of his contract. 22. Real suretyship arises where certain specific property can be tahen to enforce payment of another's debt, or the performance of some duty owing by another, and the owner of such property, if he would save it, must pay or perform, but he is not personally liable in damages. The relation of suretyship is never implied, but must be the result of an express contract. If the very object for which the contract is entered into is to become a surety, it is desig- nated as voluntary suretyship. The most common of such contracts is becoming a party to a negotiable instrument for the purpose of giving the holder additional security, 51 sign- ing a bond to secure the faithful performance of services by « See post, § 126. oo See Stearns, Law of Suretyship, p. 3. ei Ward v. Stout, 32 111. 399 ; VAIL v. FOSTER, 4 N. T. 312. §§ 17-22) CLASSIFICATION OF SUBETTSHIP. 15 an officer, or to secure the performance of some act, and all contracts of suretyship in the narrow sense. 62 However, it frequently happens that contracts are made whose chief ob- ject is to accomplish some purpose other than to become lia- ble for the debt, default, or miscarriage of another, but which, incidentally, have that effect. These are contracts of surety- ship in the broad sense. 53 Whenever one person is liable to suffer a loss through failure of another to pay a debt or to per- form a duty, which the latter should pay or perform, the law extends to the person so liable the rights and privileges of a surety. If the surety is subject to an action, and to have / judgment rendered against him personally for damages, which can be enforced by a levy and sale of his property generally, the suretyship is designated as personal; but if the debt of another is only a lien upon his property, with no personal liability upon him, and, upon the default of the debtor, he must discharge the debt to prevent the lien from being enforced upon his property, the suretyship is designated as real. A few of the most common instances of suretyship arising by operation of law will be noticed here. Sale of Property Subject to Liens. Where property subject to liens is sold, either the seller or buyer, by operation of law, may become a surety in the broad sense; the primary liability falling upon the one who, under their contract, has assumed, as between themselves, the pay- ment of the debt secured by the lien. A common transaction is the sale of real property upon which a mortgage exists; the grantee assuming the mortgage debt as a part of the pur- chase price. As between the grantor and the grantee, the lat- ter is expected to pay the mortgage at maturity and relieve the grantor from all liability. Still the transaction between the grantor and the grantee cannot affect the rights of the mort- gagee to call upon the original mortgagor for the payment of 52 In Scotch law, the instrument in which a person binds himself as surety is called a "cautionary." Black's Law Diet 182. 53 It is a common stipulation in fire insurance policies that, after a loss resulting from the tort of another, the insurer is entitled 1 to subrogation to the insured's right of action for damages against the wrong-doer. In such cases the insurer occupies the relation of sure- ty. CHICAGO & A. R. CO. v. GLBNNY, 175 111. 238, 51 N. E. 896. 16 DEFINITIONS, PARTIES, DISTINCTIONS. (Ch.l the debt, and if the grantee does not carry out his agreement with- the grantor, and pay the mortgage at maturity, the mort- gagee has the right to proceed against the mortgagor. Ihe grantor, by his contract, having assumed a secondary liability for the mortgage debt, the law extends to him the rights of a surety, 60 such as releasing him from all liability if the mort- gagee,' by agreement with the grantee alone, should extend the time of payment. 66 On the other hand, the grantee of real estate may become a surety by operation of law. Such would be the case where the grantee pays full value for the property, and receives a warranty deed, but the property is subject to the lien of a judgment against the grantor." The grantor may undertake, expressly, to remove this lien; but, whether he does or not, by his warranty deed and the receipt of the full value he has undertaken to give the grantee a clear title, and is liable for a breach of his warranty if he do not remove the lien. If the grantee be compelled to pay the judgment in order to save the property, he could recover from the grantor. This would be a case of real as well as of involuntary suretyship. By becoming secondarily liable for this judgment, the grantee, o* Under the old common-law rule, unless the mortgagee has as- sented to the arrangement between the grantor and the grantee, the grantor (mortgagor) was the only person whom the mortgagee could have held personally liable, as there was no privity of contract be- tween the grantee and the mortgagee; but In some states this rule has been modified so as to permit a person for whose benefit a con- tract is made to sue upon it, and the rule has in some states been changed by statute. 56 Flagg v. Geltmacher, 98 111. 293; Ellis v. Johnson, 96 Ind. 383; Union Stove & Machine Works v. Caswell, 48 Kan. 689, 29 Pac. 1072, 16 L. R. A. 85 ; Rice v. Sanders, 152 Mass. 108, 24 N. E. 1079, 8 L. R. A. 315, 23 Am. St Rep. 804; American Nat. Bank v. Klock, 58 Mo. App. 335; Huyler's Ex'rs v. Atwood, 26 N. J. Eq. 504; Calvo v. Davies, 73 N. Y. 211, 29 Am. Rep. 130, affirming 8 Hun (N. T.) 222; MURRAY v. MARSHALL, 94 N. Y. 611; Cook v. Berry, 193 Pa. 377, 44 Atl. 771; Bishop v. Day, 13 Vt 81, 37 Am. Dec. 582; Curry v. Hale, 15 W. Va. 867; Palmeter v. Carey, 63 Wis. 426, 21 N. W. 793, 23 N. W. 586 ; Union Mut. Life Ins. Co. v. Hanford (C. C.) 27 Fed. 588 ; 40 Cent Dig. col. 1670. " See post, § 108. 67 Barnes v. Mott, 64 N. Y. 397, 21 Am. Rep. 625, affirming 6 Daly (N. Y.) 150; Lowry v. McKinney, 68 Pa. 294. §§ 17-22) CLASSIFICATION OF SURETYSHIP. 17 through his property, is given the rights of a surety, and sub- sequent dealing by the lien holder with the grantor is liable to result in a discharge of the property from the lien. Where a sale is made, the grantee assuming one debt which is a lien upon the property, and the grantor remaining liable for another debt which is a lien, each would occupy the po- sition of a surety as to the respective debts. 58 Partnership Changes. Another quite common instance of suretyship by operation of law arises when changes are made in partnerships, where there are firm debts which are assumed by certain partners. 59 Suppose A., B., and C. are partners. A. withdraws from the firm, and B. and C. assume payment of all of the firm debts ; the intention being, among themselves, to relieve A. from all liability. Their agreement cannot affect the right of the firm creditors to enforce payment of all of the firm debts from A., should B. and C. from any cause fail to pay them, as every partner is personally liable for all of the debts of the partner- ship, 80 and cannot free himself from this liability without the creditor's consent. It will be seen that A., by remaining liable for the debts, the payment of which the others have as- sumed, occupies the position of a surety for those debts. The same principle applies, whether new partners come in, or old partners leave the firm, 61 or both, 62 or upon a dissolution of 6s Snyder v. Robinson, 35 Ind. 311, 9 Am. Rep. 738. 6» Wendlandt v. Sohre, 37 Minn. 162, 33 N. W. 700; Sizer v. Ray, 87 N. Y. 220. Where a stockholder in a corporation can be held lia- ble by the corporate creditors for the difference between the face value of his stock and the amount actually paid by him, he occupies the position of a surety for the corporation; and if one stockholder pay more than his proportionate share of the corporate debts, he is entitled to contribution from the others occupying the same rela- tion. Wolters v. Henningsan, 114 Cal. 433, 46 Pac. 277; Buchanan v. Meisser, 105 111. 638. eo George, Partnership, p. 249. «i Moore v. Topliff, 107 111. 241; Williams v. Boyd, 75 Ind. 286; SMITH v. SHELDEN, 35 Mich. 42, 24 Am. Rep. 529; Thurber v. Corbin, 51 Barb. 215; Shamburg v. Abbott, 112 Pa. 6, 4 Atl. 518; Johnson v. Young, 20 W. Va. 614. 62 Morsa v. Gleason, 64 N. Y. 207. Childs' Suretyship— 2 18 DEFINITIONS, PARTIES, DISTINCTIONS. (Ch. 1 the partnership, 63 , if some arrangement be made among them whereby a portion only of the partners assume the payment of the debts owing by the firm at the time of the change. Mortgages and Pledges to Secure Another's Debt. It not infrequently happens that a person will pledge or mortgage his property to secure the debt of his friend, the pledgor 64 or mortgagor 65 not becoming personally liable for the debt, but being obliged to pay the debt, if the borrower do es West v. Chasten, 12 Fla. 315 ; Chandler v. Higgins, 109 111. 602 ; Bays v. Conner, 105 Ind. 415, 5 N. B. 18 ; Leithauser v. Baumeister, 47 Minn. 151, 49 N. W. G60, 28 Am. St. Rep. 336 ; Burnside v. Fetz- ner, 63 Mo. 107; Barber v. Gillson, 18 Nev. 89, 1 Pac. 452; Wad- dington v. Vredenbergh, 2 Johns. Cas. (N. Y.) 227; Bryan v. Hen- derson, 88 Tenn. (4 Pickle) 23, 12 S. W. 338. The purchaser of a firm's business, assuming the firm's debts, is a principal, and the former partners are the sureties therefor. Malanaphy v. Fuller, 125 Iowa, 719, 101 N. W. 640, 106 Am. St. Rep. 332 ; Berbling v. Glaser, 23 N. Y. Supp. 118, 3 Misc. Rep. 624; Brill v. Hoile, 53 Wis. 537, 11 N. W. 42. 64 Mitchell v. Roberts (C. C.) 5 McCrary, 425, 17 Fed. 776 ; Price v. Dime Bank, 124 111. 317, 15 N. E. 754, 7 Am. St. Rep. 367. See, also, National Bank of Commerce v. Schirm (Cal. App.) 86 Pac. 981. The rule is the same, though the pledgor be the wife of the princi- pal. Allis v. Ware, 28 Minn. 166, 9 N. W. 666. Nor does it make any difference that the property is pledged) without the knowledge or authority of the owner, if the pledgee is entitled to hold it as against the owner, as would be the case with negotiable instruments intrusted to an agent who fraudulently pledged them for his own debt; the pledgee being ignorant of the lack of authority of the agent. McBRIDE v. POTTER-LOVELL CO., 169 Mass. 7, 47 N. E. 242, 61 Am. St. Rep. 265 ; Gould v. Central Trust Co., 6 Abb. N. C. (N. T.) 381. 6 5 White v. Ault, 19 Ga. 551; Christner v. Brown, 16 Iowa, 130; METZ v. TODD, 36 Mich. 473; Averill v. Ixmcks, 6 Barb. (N. Y.) 470; Hinton v. Greenleaf, 113 N. C. 6, 18 S. E. 56; Leffingwell v. Freyer, 21 Wis. 392; 40 Cent. Dig. col. 1672. See, also, Moses v. Home Ass'n, 100 Ala. 465, 14 South. 412. A wife, who mortgages her property for her husband's debt, is a surety. Spear v. Ward, 20 Cal. 659 ; Bank of Albion v. Burns, 46 N.. Y. 170 ; Gahn v. Niem- cewicz's Ex'rs, 11 Wend. (N. Y.) 312; Weil v. Thomas, 114 N. C 197, 19 S. E. 103. But where the transferee of property fraudu- lently transferred executes a mortgage on such property by order of court to secure the indebtedness of the transferror, he is not a surety, but the principal. Wilson v. Hinman, 99 App. Div. 41, 90 N. Y. Supp. 746. §§ 17-22) CLASSIFICATION OF SURETYSHIP. 19 not, in order to prevent the property being sold to satisfy the lien. Being thus liable to suffer a loss through his property for the debt of another, he is entitled to the rights of a surety, this, being another instance of real suretyship. Joint Debts. If two or more persons borrow money, and each receives a portion thereof, each becomes a principal as to the portion received by him and a surety for the share received by the others. 66 For illustration, suppose A., B., and C. borrow $3,000, and give a promissory note signed by all of them for that amount, each receiving $1,000. A. would be a principal to the extent of the $1,000 he had received; but, as he may be compelled to pay the entire amount of the note, he occu- pies the position of a surety as to the other $2,000 received by B. and C. 67 If a tract of land, subject to a mortgage, be sold, one-half to A. and one-half to B., although each half would be sub- ject equitably to its proportion of the mortgage, the mortgagee could subject either half to the entire mortgage ; hence A- and B. each would occupy the position of a surety as to that half of the mortgage which equitably should be enforced against the half of the land not owned by him. 68 «« Owen v. McGehee, 61 Ala. 440; Chipman v. Morrill, 20 Cal. 130; Hall v. Hall, 34 Ind. 314 ; Daigle's Succession, 15 La. Ann. 594 ; Hatch v. Norris, 36 Me. 419; Fletcher v. Grover, 11 N. H. 368, 35 Am. Dec. 497; Crafts v. Mott, 4 N. Y. (4 Comst.) 604; Sterling v. Stewart, 74 Pa. (24 P. F. Smith) 445, 15 Am. Rep. 559; Deitzler v, Mishler, 37 Pa. 82; Traders' Nat. Bank v. Clare, 76 Tex. 47, 13 S. W. 183. The same rule applies where the debt is not joint, but each liable for the entire amount, as would be the case of two or more insurers of property for its full value, without any stipulation in the policies in regard to other insurance. Vance, Ins. p. 54. Two principals in a joint bond would be sureties for each other. Moore v. State, 49 Ind. 558; Collins v. Carlisle, 7 B. Mon. (Ky.) 13; Newton v. Newton, 53 N. H. 537; Stokes v. Hodges, 11 Rich. Eq. (S. C.) 135 ; Boyd's Bx'rs v. Boyd's Heirs, 3 Grat. (Va.) 113. e^Goodall v. Wentworth, 20 Me. (7 Shep.) 322; Henderson v. Mc- Duffee, 5 N. H. 38. 20 Am. Dec. 557 ; 40 Cent. Dig. col. 1668. « a Williams v. Perry, 20 Ind. 437, 83 Am. Dec. 327; Cornell v. Prescott, 2 Barb. (N. Y.) 16; Van Renselaer v. Akin, 22 Wend. (N. Y.) 549. 20 DEFINITIONS, PARTIES, DISTINCTIONS. (Ch. 1 CLASSIFICATION OF GUARANTIES. 23. Guaranties are classified as follows: (a) Continuing or Open, and Noncontinuing or Limited. (b) Absolute, Conditional, and Contingent. un v. Garrett, 93 Tenn. (9 Pickle) 650, 27 S. W. 1011, 42 Am. St. Rep. 937; Seaton v. McReynolds (Tex. Civ. App.) 72 S. W. 874; Probate Court for Washington Dist. v. St. Clair, 52 Vt. 24; Nash v. Fugate, 24 Grat (Va.) 202, 18 Am. Rep. 640; Id., 32 Grat. (Va.) 595, 34 Am. Rep. 780; Lyttle v. Cozad, 21 W. Va. 183 ; Belden v. Hurlbut, 94 Wis. 562, 69 N. W. 357, 37 L. R. A. 853 ; Butler v. United States, 21 Wall. (U. S.) 274, 22 L. Ed. 614. Contra, Sharp v. Allgood, 100 Ala. 183, 14 South. 16. ea Smith v. Peoria County, 59 111. 412 ; State ex rel. McOarty v. Pep- per, 31 Ind. 76 ; State v. Peck, 53 Me. 284 ; McOormick v. Bay City, 23 Mich. 457; State, to Use of Bothrick, v. Potter, 63 Mo. 212, 21 Am. Rep. 440; Cutler v. Roberts, 7 Neb. 4, 29 Am. Rep. 371; Dair v. United States, 16 Wall. (U. S.) 1, 21 L. Ed. 491. « s Gage v. Sharp, 24 Iowa, 15; Carter v. Moulton, 51 Kan. 9, 32 Pac. 633, 20 L. R. A. 309, 37 Am. St Rep. 259; Thomas v. Bleakie, 136 Mass. 568 ; Small v. Smith, 1 Denio (N. T.) 583 ; Fowler v. Allen, 32 S. C. 229, 30 S. E. 947, 7 L. R. A. 745 ; Merritt v. Duncan, 7 Heisk. (Tenn.) 156, 19 Am. Rep. 612 ; Bowman v. Van Kuren, 29 Wis. 209, 9 Am. Rep. 554. Where a surety signs on condition that another sign as co-surety with him, and the latter signs as a supplemental surety, the surety is bound if the creditor does not have notice. Bobbitt v. Shryer, 70 Ind. 513; Adams v. Flanagan, 36 Vt 400; Melms v. Werdehoff, 14 Wis. 18. «* Taylor Co. v. King, 73 Iowa, 153, 34 N. W. 774, 5 Am. St. Rep. 666 ; McCormick Harvesting Mach. Co. v. McKee, 51 Mich. 426, 16 N. W. 796. § 43) NOTICE OF CONDITIONS. 39 cover that the delivery was not authorized ; and, if the credit- or or obligee fail to make such investigation, the surety who has signed on condition is not bound. 65 It must not be supposed, however, that a surety is not bound whenever names appear in the body of the instrument which are not appended as sig- natures thereto, 68 nor is there any presumption raised that those who have signed imposed any conditions that others should sign. 67 They may have been willing to be bound with- «» State v. Churchill, 48 Ark. 426, 3 S. W. 352, 880 ; Markland Mln. & Mfg. Co. v. Kimmel, 87 Ind. 5G0 ; Hall v. Smith, 14 Bush (Ky.) 604 ; Hessell v. Johnson, 63 Mich. 623, 30 N. W. 209, 6 Am. St. Rep. 334 ; Cutler v. Roberts, 7 Neb. 4, 29 Am. Rep. 371 ; State Bank at Trenton v. Evans, 15 N. J. Law, 155, 28 Am. Dec. 400; Warfel v. Frantz, 76 Pa. 88; Preston v. Hull, 23 Grat. (Va.) 600, 14 Am. Rep. 153; Pawling v. United States, 4 Craneh (U. S.) 219, 2 L. Ed. 601. «s People v. Stacy, 74 Cal. 373, 16 Pac. 192; Trustees of Schools v. Sheik, 119 111. 579, 8 N. E. 189 ; Whitaker v. Richards, 134 Pa. 191, 19 Atl. 501, 7 L. R. A. 749, 19 Am. St Rep. 684. If a bond be delivered to the obligee by a part of the obligors, it will be binding on them. State v. Peck, 53 Me. 284. A statute may annex the condition, as a requirement that more than one surety should sign. Sharp v. United States, 4 Watts (Pa.) 21, 28 Am. Dec. 676. s? City of Los Angeles v. Melius, 59 Cal. 444; Towns v. Kellett, 11 Ga. 286; Johnson v. Weatherwax, 9 Kan. 75; Inhabitants of Readfield v. Shaver, 50 Me. 36, 79 Am. Dec. 592; State ex rel. Moore v. Sandusky, 46 Mo. 377; Mullen v. Morris, 43 Neb. 596, 62 N. W. 74 ; Blume v. Bowman, 24 N. C. 338 ; Whitaker v. Richards, 134 Pa. 191, 19 Atl. 501, 7 L. R. A. 749, 19 Am. St Rep. 684 ; Ward v. Churn, 18 Grat. (Va.) 801, 98 Am. Dec. 749. In some states, while there is no presumption that any condition was annexed in regard to others signing as sureties, there is a presumption that there was a condition imposed that the principal would sign. Clements v. Oas- silly, 4 La. Ann. 380; Dole Bros. Co. v. Preserving Co., 167 Mass. 481, 46 N. E. 105, 57 Am. St. Rep. 477 ; Hall v. Parker, 39 Mich. 287 ; Safranski v. St. Paul Co., 72 Minn. 185, 75 N. W. 17 ; Gay v. Murphy, 134 Mo. 98, 34 S. W. 1091, 56 Am. St Rep. 496 ; Board of Education of Rapid City v. Sweeney, 1 S. D. 642, 48 N. W. 302, 36 Am. St. Rep. 767. But in other states there is no presumption even as to the prin- cipal. Trustees of Schools v. Sheik, 119 111. 579, 8 N. E. 189 ; Hick- man v. Fargo, 1 Kan. App. 695, 42 Pac. 381; City of Deering v. Moore, 86 Me. 181, 29 Atl. 98S, 41 Am. St. Rep. 534; Cockrill v. Davie, 14 Mont. 131, 35 Pac. 958; Bollman v. Pasewalk, 22 Neb. 761, 36 N. W. 134; Whitford v. Laidler, 94 N. Y. 145, 46 Am. Rep. 131; Eureka Sandstone Co. v. Long, 11 Wash. 161, 39 Pac. 446; Douglas County v. Bardon, 79 Wis. 641, 48 N. W. 969. In California, if the 40 FORMATION OF THE CONTRACT. (Ch. 2 out the others. The rule applies to cases only where the sure- ties who have signed have annexed conditions which would have been discovered by the creditor or obligee by inquiry. If conditions had not been imposed, none could have been dis- covered. Conditions may have been imposed by one, or any number less than all, of the sureties, in which case those who signed without condition will be bound. 68 This shows the importance of a personal interview, by one who contem- plates becoming a surety, with those whom he expects to be- come co-sureties with him, in order to ascertain their exact intentions. Notice to an agent of the creditor is notice to the creditor. Thus, a bank is bound by a condition, communicated to its agent, that a note is not to be binding upon a surety who has signed unless it is signed by another specified person. 69 The creditor or obligee cannot escape knowledge by failure to read the instrument, and he is bound by everything that he might have seen by an inspection of it. 70 Thus, he is held to constructive notice of a pencil memorandum written thereon. A distinction seems to be taken between a surety signing up- on condition that another shall sign and a promise that the principal will procure such signature. In the latter case, the principal violates his promise to the surety and would be lia- ble therefor ; but that does not affect the rights of the cred- itor or obligee. If, at the time of signing, the surety should say to his principal, "I sign this on condition that you sign," or even, "Don't deliver this until you sign," a condition is annexed, and the surety will not be liable to a creditor with notice; but if the surety says, "You'll sign this before you obligation is joint and several, there is no presumption that a surety signed on condition that the principal would sign also. Kurtz v. Forquer, 94 Cal. 91, 29 Pac. 413. But it is otherwise if the obliga- tion be joint only. Weir v. Mead, 101 Cal. 125, 35 Pac. 567, 40 Am. St. Rep. 46. 68 Cutler v. Roberts, 7 Neb. 4, 29 Am. Rep. 371. «9 Commercial Bank v. Smith, 34 Nova Sco. 426. to Benton County Sav. Bank of Norway v. Boddieker, 105 Iowa, 548, 75 N. W. 632, 45 L. R. A. 321, 67 Am. St. Rep. 310; Crystal Lake Tp. v. Hill, 109 Mich. 246, 67 N. W. 121; Mullen v. Morris, 43 Neb. 596, 62 N. W. 74; Cutler v. Roberts, 7 Neb. 4, 29 Am. Rep. 371. 44) SIGNING ON CONDITION. 41 sliver, won't you ?" and the principal promises to do so, there no condition attached by the surety, but he has asked and atained a promise only from the principal to do a certain act, hich agreement the principal violates. 71 It is no defense to a surety that he signed a contract on the ipposition that similar contracts would be executed by oth- •s. 72 If conditions have been attached to the delivery of the in- rument, of which the obligee is aware, his assent thereto ill be presumed from acceptance. 73 Unperformed conditions, lown to the payee of a negotiable instrument, cannot be set p' against a purchaser for value without notice. 74 SIGNING ON CONDITION— FILLING BLANK SPACES. L. A surety who signs an instrument with blank spaces there- in is bound by the act of his principal in filling them. A surety who signs his name to a blank paper, or who signs 1 instrument in which there are blanks, impliedly authorizes le principal, as his agent, to fill such blanks in such a manner > to make it a valid contract; 75 and, if the principal violates »i Trustees of Schools v. Sheik, 119 111. 579, 8 N. E. 189. "COOPE v. TWYNAM, Turn. & Russ. 426; Pendlebury v. Walk- , 4 Y. & C. 424. 'a Ward v. Churn, 18 Grat. (Va.) 801, 98 Am. Dee. 749. '* Marks v. First Nat. Bank, 79 Ala. 550, 58 Am. Rep. 620. "Dolbeer v. Livingston, 100 Cal. 617, 35 Pac. 328; State ex rel. eCarty v. Pepper, 31 Ind. 76; Rose v. Douglass Tp., 52 Kan. 451, : Pac. 1046, 39 Am. St. Rep. 354; Inhabitants of South Berwick Huntress, 53 Me. 89, 87 Am. Dec. 535 ; Smith v. Crooker, 5 Mass. :8 ; McCormick v. Bay City, 23 Mich. 457 ; State v. Young, 23 Minn. >1 ; Kinney v. Schmitt, 12 Hun (N. Y.) 521 ; Simpson's Ex'r v. Bo- ird, 74 Pa. (24 P. F. Smith) 351 ; BUTLER v. UNITED STATES, I U. S. (21 Wall.) 272, 22 L. Ed. 614. The true date of the execu- )n of a promissory note may be inserted. Emmons v. Meeker, 55 id. 321; Patton v. Shanklin, 53 Ky. (14 B. Mon.) 15; Androscog- n Bank v. Kimball, 64 Mass. (10 Cush.) 373; Mitchell v. Culver, Cow. (N. Y.) 336 ; Page v. Morrell, 33 How. Prac. (N. Y.) 244. The lyee's name. Rich v. Starbuck, 51 Ind. 87. The names of other ireties. Boyd v. Agricultural Ins. Co., 20 Colo. App. 28, 76 Pac. 16. The penalty. White v. Duggan, 140 Mass. 18, 2 N. E. 110, 54 42 FORMATION OF THE CONTRACT. (Ch. 2 his instructions in regard to the manner of filling the blanks, the surety is bound nevertheless, in the absence of knowledge on the part of the creditor, as he is bound by the acts of his agent. 76 Am. Rep. 437; Rollins v. Ebbs, 138 N. O. 140, 50 S. E. 577, revers- ing 137 N. C. 355, 49 S. E. 341. A surety is estopped to question tbe validity of a bond which he signed in blank. Willis v. Rivers, 80 6a. 556, 7 S. E. 90 ; Wright v. Harris, 31 Iowa, 272. The surety would be bound, of course, if by his subsequent acts he ratified the act of the principal in filling the blanks. Bartlett v. Board of Education, 59 111. 364. And, in any event, the principal would be bound, wheth- er the sureties are or not. Penn v. Hamlett, 27 Grat, (Va.) 337. 76 City of Chicago v. Gage, 95 111. 593, 35 Am. Rep. 182, reversing Gage v. Chicago, 2 111. App. (2 Bradw.) 332 ; Chalaron v. McFarlane, 9 La. 227 ; White v. Duggan, 140 Mass. 18, 2 N. E. 110, 54 Am. Rep. 437 ; Schryver v. Hawkes, 22 Ohio St. 308 ; Stahl v. Berger, 10 Serg. & R. (Pa.) 170, 13 Am. Dec. 666; Gary v. State, 11 Tex. App. 527. In Cross v. State Bank, 5 Ark. 525, and Rhea v. Gibson's Ex'r, 10 Grat. (Va.) 215, the contrary rule is held, and the surety in such cases is not liable. In some states, while the rule is as stated in the text as to instruments not under seal, it is otherwise as to bonds, and a surety is held not to be liable if he signed a sealed instrument containing blanks, even though the blanks were filled afterwards in accordance with his instructions. Richmond Mfg. Co. v. Davis, 7 Blackf. (Ind.) 412; Lockart v. Roberts, 3 Bibb (Ky.) 361; Byers v. McClanahan, 6 Gill & J. (Md.) 250; Williams v. Crutcher, 6 Miss. 71, 35 Am. Dec. 422; Richards v. Day, 137 N. Y. 183, 33 N. E 146, 23 L. R. A. 601, 33 Am. St. Rep. 704 ; Barden v. Southerland, 70 N. C. 528 ; Famulener v. Anderson, 15 Ohio St. 473 ; Mosby v. Arkan- sas, 4 Sneed (Tenn.) 324. But in other states no distinction is made between a sealed and unsealed instrument, and a surety who signs an obligation under seal with blanks therein is bound. Gibbs v. Frost, 4 Ala. 720; Lee Co. v. Welsing, 70 Iowa, 198, 30 N. W. 481; Rose v. Douglass Tp., 52 Kan. 451, 34 Pac. 1046, 39 Am. St Rep. 354 ; In- habitants of South Berwick v. Huntress, 53 Me. 89, 87 Am. Dec. 535 ; State v. Young, 23 Minn. 551 ; Greene County, to Use of Sims, v. Wil- hite, 29 Mo. App. 459; Ex parte Kerwin, 8 Cow. 118; Wiley v. Moore, 17 Serg. & R. (Pa.) 438, 17 Am. Dec. 696 ; Mills v. Williams, 16 S. C. 593. A surety who signs a negotiable instrument with blanks therein is liable to a purchaser for value without notice of a viola- tion of his instructions as to the manner in which the blanks should be filled. Roberson v. Blevins, 57 Kan. 50, 45 Pac. 63; Fullerton v. Sturges, 4 Ohio St. 529; Wessell v. Glenn, 108 Pa. 104; Frazier v. Gains, 61 Tenn. (2 Baxt) 92 ; Johnston Harvester Co. v. McLean, 57. Wis. 258, 15 N. W. 177, 46, Am. Rep. 39. § 45) FAILURE OF PRINCIPAL TO EXECUTE BOND. 43 A principal may obtain as many additional sureties as he may require to make the instrument available for the purpose for which it is intended. 77 FAILURE OF PRINCIPAL TO EXECUTE BOND. 45. In some, though not in all, jurisdictions, a surety On a bond is bound, although not executed by the principaL There is a conflict of authority whether the omission of the signature of the principal, his name appearing in the body of the obligation, will affect the liability of the surety. In some jurisdictions it is held that the omission of the signature of the principal is a mere technical defect. 78 The principal would be liable without any formal contract. A public offi- cer is liable for a breach of his official duties, and such lia- bility may be enforced under the common law, whether he has or has not given a bond, 79 and the sureties are not injured by the failure of the principal to sign ; for, if they are compelled to pay because of the default of their principal, they can have indemnity from him whether he signed or not. 80 In other T7 Oldham v. Broom, 28 Ohio St. 41 ; Keith v. Goodwin, 31 Vt. 268, 73 Am. Dec. 345. See post, § 107. 7 8 State v. McDonald, 4 Idaho, 468, 40 Pac. 312, 95 Am. St Rep. 137 ; Trustees of Schools v. Sheik, 119 111. 579, 8 N. E. 189, revers- ing 10 111. App. 51 ; Tillson v. State, 29 Kan. 452 ; Senour v. Masch- inot (Ky.) 31 S. W. 481 ; State v. Peck, 53 Me. 284 ; Clark v. Bank of Hennessey, 14 Okl. 572, 79 Pac. 217 ; Loew's Adm'r v. Stacker, 68 Pa. (18 P. F. Smith) 226; Commonwealth v. Lamar, 32 Pa. Super. Ct. 200 ; Bader v. Davis, 5 Lea (Tenn.) 536 ; San Roman v. Watson, 54 Tex. 254 ; Eureka Sandstone Co. v. Long, 11 Wash. 161, 39 Pac. 446 ; Douglas County v. Bardon, 79 Wis. 641, 48 N. W. 969. In some states the sureties are made liable by statute. Mcintosh v. Hurst, 6 Mont. 287, 12 Pac. 647; Johnson v. Johnson, 31 Ohio St. 131. 79 CITY OF DEERING v. MOORE, 86 Me. 181, 29 Atl. 988, 41 Am. St Rep. 534. The rule would be otherwise as to a bail bond, where the sureties have peculiar rights flowing from the stipulations agreed to by the principal. Bean v. Parker, 17 Mass. 591. so Trustees of Schools v. Sheik, 119 111. 579, 8 N. E. 189, reversing 16 111. App. 49; Harnsberger v. Yancey, 33 Grat (Va.) 527. 44 FORMATION OF THE CONTRACT. (Ch. 2 jurisdictions, including Massachusetts 81 and Minnesota, 82 a principal is regarded as essential ; and a bond which has not been executed by the principal is void. 83 A guaranty of a lease is valid, though only one of two lessees executed it. 84 FORMALITY OF CONTRACT. 46. A contract of suretyship may be created by any form of expression which will indicate clearly the intention of the parties. No particular form of words is required to constitute a contract of suretyship. In general, no formalities are requir- ed by law, except such as are provided by the statute of frauds, si Goodyear Dental Vulcanite Co. v. Bacon, 151 Mass. 460, 24 N. B. 404, 8 L. R. A. 486; RUSSELL v. ANNABLE, 109 Mass. 72, 12 Am. Rep. 665. 82 Martin v. Hornsby, 55 Minn. 187, 56 N. W. 751, 43 Am. St. Rep. 487 ; State v. Austin, 35 Minn. 51, 26 N. W. 906. 8 3 People v. Hartley, 21 Cal. 585, 82 Am. Dec. 758; Mayo v. Ren- froe, 66 Ga. 408; Wells v. Dill, 1 Mart. N. S. (La.) 592; Johnston v. Kimball Tp., 39 Mich. 187, 33 Am. Rep. 372; American Radiator Co. v. American Bonding & Trust Co. (Neb.) 100 N. W. 138 ; Carroll County Sav. Bank v. Strother, 22 S. C. 552 ;' Board of Education of Rapid City v. Sweeney, 1 S. D. 642, 48 N. W. 302, 36 Am. St. Rep. 767 ; Fletcher v. Austin, 11 Vt. 447, 34 Am. Dec. 698. If it could pos- itively be shown that the sureties delivered the bond to be operative against themselves alone, they would' be bound. Wild Cat Branch v. Ball, 45 Ind. 213; Hall v. Parker, 39 Mich. 287. In RUSSELL v. ANNABLE, 109 Mass. 72, 12 Am. Rep. 665, the name of a firm was signed to an attachment bond by one partner without authority, and it was held that the bond was void; but in WEARE v. SAW- YER, 44 N. H. 198, the sureties were held liable where bonds of a school district were executed by agents without authority. It was said that the agents would be bound as principals, and the sureties, knowing all of the facts, were liable, though they supposed that some one else was the principal. See post, § 62. si McLaughlin v. McGovern, 34 Barb. (N. Y.) 208. Where a guar- anty was made of an instrument supposed by all persons to be a promissory note, but which was payable to the maker's order, and not indorsed by him, the guarantor was held bound. JONES v. THAYER, 12 Gray (Mass.) 443, 74 Am. Dec. 602. § 47) ESSENTIALS OF A BOND. 45 which will be considered in a subsequent chapter." If the parties intend to enter into a particular kind of a contract, it is essential that the formalities of a contract of that particular nature be observed. Thus, if the surety intends to become a party to a negotiable instrument, he must conform to the requirements of an instrument of that nature. If he desires to enter into a bond, the instrument signed by him must have the essential characteristics of a bond. These will be noticed later. 86 But, having determined upon the nature of his par- ticular contract, and having observed the formalities neces- sary for that contract, the character of surety will result with- out any formality, or the use of the words "surety" or "guar- anty." If two parties sign a promissory note as joint makers, and one only receives the consideration, the other becomes a surety without any further contract. 87 If a person intend to become a joint maker of an instrument, he will be held to be such although he signs his name upon the back. 88 The liability of a surety is not affected by the fact that he became such without the knowledge of the principal. 88 ESSENTIALS OF A BOND. 47. If it is the intention of the parties to enter into a bond, the instrument executed by them must contain the characteristics of such an obligation. Date. It is not necessary that a bond should bear a date, as it takes effect from the time of delivery and acceptance. 90 85 See post, c. III. 8S See next section. «7 Sefton v. Hargett, 113 Ind. 592, 15 N. E. 513. as Schmidt r. Scbmaelter, 45 Mo. 502. as Solary v. Stultz, 22 Fla. 263 ; Hughes v. Littlefield, 18 Me. (6 Shep.) 400. A request of the surety to sign may be presumed from the principal taking advantage of the instrument executed; as by appearing on appeal the principal will be presumed to have request- ed the surety to sign the appeal bond Snell v. Warner, 63 111. 176. so Founder v. Cyr, 64 Me. 33. 46 FORMATION OF THE CONTRACT. (Ch. 2 Penalty and Condition. There must be a penalty 91 and a condition ; 92 otherwise there is no covenant, and the instrument is void. Signature. If the sureties sign and seal a bond, they are bound, al- though their names are omitted from the body thereof ; 8S but the fact that persons are named in the body of the bond as sureties attaches no liability upon them unless they in fact sign and seal it, 94 even though the name of a surety in the body of the bond is written by himself. 96 Seal. Any mark or sign, however small, intended by the signer as a seal, will be sufficient. 98 Where there are a greater num- ber of signatures than seals, two or more signers may adopt one seal. 97 Seals have been abolished in some states, 88 while in others the distinction between a sealed and an unsealed in- strument is not so marked as it was under the common law. 99 »i Evarts v. Steger, 6 Or. 55 ; Austin v. Richardson, 1 Grat. (Va.) 310. »2 Fitzgerald v. Staples, 88 111. 234, 30 Am. Rep. 551. »s Neil v. Morgan, 28 111. 524 ; Scheid v. Leibschultz, 51 Ind. 38 , Valentine v. Christie, 1 Rob. (La.) 298; Pournier v. Oyr, 64 Me. 32; Danker v. Atwood, 119 Mass. 146 ; Holmes v. State, 17 Neb. 73, 22 N. W. 232 ; Ex parte Fulton, 7 Cow. (N. Y.) 484 ; Joyner v. Cooper, 2 Bailey (S. C.) 199; Campbell v. Campbell, Brayton (Vt,) 38. A surety on a lease will be liable, although his name does not appear therein. Perkins v. Goodman, 21 Barb. (N. Y.) 218. ' »4 Pevito v. Rodgers, 52 Tex. 581. »5 Wild Cat Branch v. Ball, 45 Ind. 213. 9« A dash may be a sufficient seal. Hacker's Appeal, 121 Pa. 192, 15 Atl. 500, 1 L. R. A. 861. The abbreviation "L. S.," for "locus sigilli," originally intended to indicate the place for affixing the seal, is used now as the seal itself. Smith v. Butler, 25 N. H. 524. See an interesting note in regard to seals on page 232, Stearns, Law of Suretyship. 97 New Orleans, St. L. & C. Ry. Co. v. Burke, 53 Miss. 200, 24 Am. Rep. 689; Northumberland v. Cobleigh. 59 N. H. 250; Building Ass'n V. Cummings, 45 Ohio St. 664, 16 N. E. 841. »s Private seals have been abolished in Indiana, Iowa, Kansas, Mis- sissippi, Montana, Nebraska, North Dakota, Ohio, South Dakota Ten- nessee, and Texas. 9 9 Changes have been made in California, Kentucky, Michigan New Jersey, New York, Oregon, and Wisconsin. In Illinois suit may be § 48) QUALIFICATION OF LIABILITY. 47 Where a seal is required by statute on the bond of a public officer, its omission renders the instrument a nullity as a spe- cialty; but, if the officer fills the position, the sureties will be liable upon the instrument as a simple contract. 100 QUALIFICATION OF LIABILITY. 48. A surety can qualify his signature by the addition of words to describe his character; and he can limit the amount for which he shall be held liable. A person signing an instrument is at liberty to qualify his signature by the addition of the word "surety," or other tech- nical words to indicate his intention and describe his true re- lationship to the transaction, and all persons are bound to take notice of the character in which he has signed. 101 While the general rule is that a surety is liable for the en- tire amount called for in the instrument, 102 it is not necessary that the obligation of the principal and surety should be co- extensive. 103 The surety is at liberty to limit such liability to a specific sum set opposite to his name, in which case he cannot be held for any greater amount. 104 So, a guaranty of a promissory note may provide for a lower rate of interest than is called for in the note itself, and the guarantor cannot be held liable to an amount larger than the principal of the note and interest at the rate he has designated. 105 Likewise, brought upon a sealed instrument as if a simple contract. Dean v. Walker, 107 111. 540, 47 Am. Rep. 467. ioo United States v. Linn, 15 Pet. (U. S.) 290, 10 L. Ed. 742. It is not a defense for the sureties that the bond is not stamped. Mc- Govern v. Hoesback, 53 Pa. 176. ioi See post, § 103. 102 Richardson v. Allen, 74 Ga. 719 ; Hooper v. Hooper, 81 Md. 155, 31 Atl. 508, 48 Am. St. Rep. 496. 103 Gasquet v. Dimitry, 9 La. 585. 104 Westbrook v. Moore, 59 Ga. 204; People v. Slocum, 1 Idaho, 62 ; Houck v. Graham, 123 Ind. 277, 24 K. E. 113 ; City of New Or- leans v. Waggaman, 31 La. Ann. 299 ; City of Butte v. Cohen, 9 Mont, 435, 24 Pac. 206. los Oozzens v. Brick Co., 166 111. 213, 46 N. E. 788. The words "out of assets placed in my hands" will not restrict the liability of 48 FORMATION OF THE CONTRACT. (Ch. 2 a guarantor of bonds, which are due at a certain time, can guaranty them to be paid at a later time, in which case the guar- antor cannot be held until that time, although the principal may be liable before. 106 CONSIDERATION— NECESSITY. 49. A contract of suretyship, not under seal, which is not based upon a consideration, is void. EXCEPTION— A negotiable instrument, made without con- sideration, is valid in the hands of a purchaser for value without notice. SAME— ADEQUACY. 50. The consideration need not be adequate. SAME— LEGALITY. 51. The consideration must be legal. A sufficient consideration is essential to the validity of every simple contract, 107 and such consideration will not be pre- a guarantor of the payment of a promissory note. Wadsworth v. Smith, 43 Iowa, 439. loe Union Trust Co. v. Motor Co., 117 Mich. 631, 76 N. W. 112. A guaranty of payment of water rent after a named date is binding, although the lessee is liable prior to that time. Moss v. Blyth (Sup.) 92 N. Y. Supp. 294. 107 Lagomarsino v. Giannini, 146 Cal. 543, 80 Pac. 698; Oowles v. Peck, 55 Conn. 251, 10 Atl. 569, 3 Am. St. Rep. 44 ; Harwood v. Kier- sted, 20 111. 367; Post v. Losey, 111 Ind. 74, 12 N. E. 121, 60 Am. Rep. 677; Briggs v. Latham, 36 Kan. 205, 13 Pac. 129; Aldridge v. Turner, 1 Gill & J. (Md.) 427 ; Tenney v. Prince, 4 Pick. (Mass.) 385, 16 Am. Dec. 347 ; Macfarland v. Heim, 127 Mo. 327, 29 S. W. 1030, 48 Am. St. Rep. 629 ; March v. Putney, 56 N. H. 34 ; BELKNAP v. BENDER, 75 N. Y. 446, 31 Am. Rep. 476 ; PUTNAM v. SCHUYLER, 4 Hun (N. Y.) 166; McMillan v. Burkham, 1 Wkly. Law Bui. (Ohio) 111 ; Cobb v. Page, 17 Pa. 469 ; Gilman v. Kibler, 24 Tenn. (5 Humph.) 19 ; Buttlar v. Davis, 52 Tex. 74 ; Beers v. Spooner, 9 Leigh (Va.) 153. If the original contract was void for want of consideration, a renewal of it is void likewise. Hetherington v. Hixon, 46 Ala. 297. § 51) CONSIDERATION — LEGALITY, 49 sumed. 108 At common law a person executing a sealed in- strument is estopped to deny the absence of a consideration. 109 Definition of Consideration. Consideration is some right, interest, profit, or benefit ac- cruing to the promisor, or some forbearance given, detriment or loss suffered, or responsibility undertaken by the promisee at the express or implied request 'of the promisor. It will be noticed, from this definition, that consideration may be either one or the other of two forms — either some advantage receiv- ed by the party who promises, or some disadvantage to the party to whom the promise is given. 110 Usually, in contracts losRichner v. Kreuter, 100 111. App. 548; EVANS VILLE NAT. BANK v. KAUFMANN, 93 N. Y. 273, 45 Am. Rep. 204. If a guar- anty be made after delivery of the instrument, the burden is on the plaintiff to show the consideration. Featherstone v. Hendrick, 59 111. App. 497. The words "for value received" import a consideration, and the defendant must show the contrary. Quimby v. Morrill, 47 Me. 470; Austin, Tomlinson & Webster Mfg. Co. v. Heiser, 6 S. D. 429, 61 N. W. 445. But, if it is not stated from whom the value is received, it is insufficient to show a consideration. DAVIS SEW- ING MACH. CO. v. RICHARDS, 115 U. S. 524, 6 Sup. Ct 173, 29 L. Ed. 480. If the writing name a consideration it is not conclusive, and the truth may be inquired into. Swope v. Forney, 17 Ind. 385. 109 van Valkenburgh v. Smith, 60 Me. 97; Roth v. Adams, 185 Mass. 341, 70 N. E. 445 ; Jerome v. Ortman, 66 Mich. 668, 33 N. W. 759 ; Hale v. Dressen, 73 Minn. 277, 76 N. W. 31 ; Montgomery Coun- ty v. Auchley, 103 Mo. 492, 15 S. W. 626 ; Aller v. Aller, 40 N. J. Law, 446 ; Smith v. Northrup, 80 Hun, 65, 29 N. Y. Supp. 851, affirmed 145 N. Y. 627, 40 N. E. 165 ; Cosgrove v. Cummings, 195 Pa. 497, 46 Atl. 69; Harris v. Harris' Ex'r, 23 Grat. .(Va.) 737; Storm v. United States, 94 U. S. 76, 24 L. Ed. 42. Where a bond recites a consider- ation, it cannot be contradicted by oral evidence. Cocks v. Barker, 49 N. Y. 107 ; Miller v. Bagwell, 3 McCord (S. C.) 562. A recogni- zance is an obligation of record, and requires no consideration. Mitchell v. Thorp, 5 Wend. (N. Y.) 287; Johnson v. Laserre, 2 Ld. Raym. 287. By statute, want or failure of consideration may be shown in California, Indiana, Iowa, Kansas, Kentucky, Michigan, Nebraska, New Jersey, New York, Oregon, Wisconsin, and, possibly, in other states, although the instrument is under seal. See Haven v. Chicago Co., 96 111. App. 92. no Darby v. Berney Nat. Bank, 97 Ala. 643, 11 South. 881; Rob- inson v. Hyer, 35 Fla. 544, 17 South. 745 ; Hirsch v. Carpet Co., 82 111. App. 234 ; Hunt v. Daniel, 29 Ky. (6 J. J. Marsh.) 398 ; Bickford V. Gibbs, 8 Cush. (Mass.) 156; Adams v. Huggins, 78 Mo. App. 219; Childs' Suretyship — 4 50 FORMATION OF THE CONTRACT. (Ch. 2 of suretyship, the consideration is of the latter kind. A sure- ty, for illustration, who reluctantly signs a promissory note for the accommodation of his friend, may be compelled to pay it, although he has never received one cent of the money for which the note was given, and, if the principal be insolvent, the surety may have no practical means of recovering the amount paid. The consideration for the contract of surety- ship is clearly no benefit received by the surety ; but the payee of the note would not have parted with his money to the prin- cipal had he not been given the promise of the surety, and the consideration is that the creditor has suffered the disadvantage of having parted with his money. 111 Although, as above, stat- ed, a consideration is not necessary in a sealed instrument, and a surety who has become a party to a deed will not be al- Conover v. Stillwell, 34 N. J. Law, 54; UNION BANK OF LOUISI- ANA v. COSTER'S EX'RS, 3 N. Y. 208, 53 Am. Dec. 280; Pennsyl- vania Coal Co. v. Blake, 85 N. Y. 226; BALLARD v. BURTON, 64 Vt. 387, 24 Atl. 769, 16 L. R. A. 664; Colgin v. Henley, 6 Leigh (Va.) 85. This rule is sometimes worded that the consideration moving to the principal is sufficient to support the contract of the surety. Kennedy & Shaw Lumber Co. v. S. S. Co., 123 Cal. 584, 56 Pac. 457 ; Gay v. Mott, 43 Ga. 252; Hippach v. Makeever, 166 111. 136, 46 N. E. 790 ; Favorite v. Stidham, 84 Ind. 423 ; Winans v. Gibbs, 48 Kan. 777, 30 Pac. 163; Union Bank of Louisiana v. Beatty, 10 La. Ann. 378 ; True v. Harding, 12 Me. (3 Fairf .) 193 ; Heyman v. Dooley, 77 Md. 162, 26 Atl. 117, 20 L. R. A. 257 ; Lennox v. Murphy, 171 Mass. 370, 50 N. E. 644 ; D. M. Osborne & Co. v. Gullikson, 64 Minn. 218, 66 N. W. 965 ; Wren v. Pearce, 4 Smedes & M. (Miss.) 91 ; Robert- son v. Findley, 31 Mo. 384 ; Savage v. Fox, 60 N. H. 17 ; McNaught v. McClaughry, 42 N. Y. 22, 1 Am. Rep. 487 ; Erie Co. Sav. Bank v. Ooit, 104 N. Y. 532, 11 N. E. 54 ; Greer v. Jones, 52 N. C. (7 Jones, Law) 581; Paul v. Stackhouse, 38 Pa. 302; Henderson v. Rice, 41 Tenn. (1 Cold.) 223 ; Gagen v. Stevens, 4 Utah, 348, 9 Pac. 706; Bebee v. Moore, 3 McLean, 387, Fed. Cas. No. 1,202. mParkhurst v. Vail, 73 111. 343; Clopton v. Hall, 51 Miss. 482; McNaught v. McClaughry, 42 N. Y. 22, 1 Am. Rep. 487; Green v. Thornton, 49 N. C. 230 ; UNDERWOOD v. STANEY, 1 Cases in Chan. 77. The same rule applies in the case of a guaranty given at the time a note is transferred. Worden v. Salter, 90 111. 160 ; Gillighan v. Boardman, 29 Me. (16 Shep.) 79. Or a guaranty of the payment of goods sold. GIBBS v. BLANCHARD, 15 Mich. 292; Lamb v. Briggs, 22 Neb. 138, 34 N. W. 217; Beakes v. Da Cunha, 126 N Y 293, 27 N. E. 251, affirming 58 Hun, 609, 12 N. Y. Supp. 351 ; Young v. Brown, 53 Wis. 333, 10 N. W. 394. § 51) CONSIDERATION LEGALITY. 51 lowed to set up lack of consideration, yet in many cases of bonds given for the faithful performance of services of of- ficers a consideration could be found in the fact that the prin- cipal would not be allowed to enter upon his duties until he had given the bond ; that is, the employer has suffered the dis- advantage of having placed his money or his affairs in the hands of an employe who has the opportunity of injuring his employer by some wrongful act. 112 The consideration might be both some advantage to the surety or some detriment to the creditor ; but, in such case, the former is spoken of usually as being the consideration. Past Consideration. What is known as a "past consideration" is no consideration at all. 113 A past consideration is some act or forbearance fully performed, by which a person has been benefited without any legal liability upon his part. 11 * Suppose a promissory note to have been executed and delivered to the payee, and the maker of the note has received from the payee the sum called for in the note. Afterwards, without any prior agreement be- tween them, the payee requests the signature of a surety to the note, and the maker procures such signature. The surety would not be liable to the payee, or to anyone having notice, as there was no consideration for his promise. 115 He cannot "2 See Thompson v. Blanchard, 3 N. Y. 335. us Ware v. Adams, 24 Me. (11 Shep.) 177; Eldar v. Warfield, 7 Har. & J. (Md.) 391 ; Yale v. Edgerton, 14 Minn. 194 (Gil. 144) ; Farns- worth v. Clark, 44 Barb. (N. Y.) 601; Rix v. Adams, 9 Vt. 233, 31 Am. Dee. 619. ii4 Clark, Contracts (2d Ed.) p. 137. us Anderson v. Bellenger, 87 Ala. 334, 6 South. 82, 4 L. R. A. 680, 13 Am. St. Rep. 46 ; Hazeltine v. Larco, 7 Cal. 32 ; Cowles v. Pick, 55 Conn. 251, 10 Atl. 569, 3 Am. St Rep. 44 ; Parkhurst v. Vail, 73 111. 343 ; Anderson v. Norvill, 10 111. App. (10 Bradw.) 240 ; Favorite v. Stidham, 84 Ind. 423; Briggs v. Downing, 48 Iowa, 550; Greer v. Clermont Distilling Co., 15 Ky. Law Rep. 237 ; Sawyer v. Fernald, 59 Me. 500 ; Roberts v. Woven Wire Mattress Co., 46 Md. 374 ; Ten- ney v. Prince, 21 Mass. (4 Pick.) 385, 16 Am. Dec. 347 ; Green v. Shep- herd, 87 Mass. (5 Allen) 589; Clopton v. Hall, 51 Miss. 482; Peek v. Harris, 57 Mo. App. 467; Barnes v. Van Keuren, 31 Neb. 165, 47 N. W. 848 ; McNaught v. McClaughry, 42 N. Y. 22, 1 Am. Rep. 487 ; Greer v. Jones, 52 N. C. (7 Jones, Law) 581 ; Gilman v. Kibler, 24 Tenn. (5 Humph.) 19 ; Jones v. Ritter, 32 Tex. 717 ; Good v. Martin, 52 FORMATION OF THE CONTRACT. (Ch. 2 be said to have received any benefit. The principal has receiv- ed that. Nor has the payee suffered any disadvantage, for he already had parted with his money, relying upon the prom- ise of the principal alone. He has not incurred any additional disadvantage when the surety signed. Rather, the surety is the one who suffers the disadvantage, as he has promised to pay a sum of money which he never received. The transac- tion was complete before the surety signed, and comes under the designation of past consideration; the parting with the money by the payee having occurred before there was any thought of a surety. If, during the original negotiations be- tween the principal and the creditor, before the contract was complete, the creditor had stipulated that the maker should procure a surety when asked to do so, there would have been a consideration for the contract of the surety whenever he might sign, 116 as, in such case, the creditor suffered the dis- advantage of parting with his money in reliance upon the sure- ty to be obtained, and would not have parted with his money had it not been for the contract of suretyship yet to be made. Another instance of past consideration which is not uncom- mon is a contract of suretyship entered into on account of for- 95 U. S. 90, 24 L. Ed. 341. An injunction bond, given after the in- junction has issued, is without consideration. Carter v. Mulrein, 82 Cal. 167, 22 Pac. 1086, 16 Am. St. Rep. 99. A guaranty of payment of goods already delivered would be without consideration, although a guaranty of payment of goods to be delivered, contained in the same instrument, would be valid. WOOD v. BENSON, 2 Crompt & Jervis, 94. lie Williams v. Perkins, 21 Ark. 18; Wills v. Ross, 77 Ind. 1, 40 Am. Rep. 279; Grim v. Semple, 39 Iowa, 570; Gillighan v. Board- man, 29 Me. 79 ; Moies v. Bird, 11 Mass. 436, 6 Am. Dec. 179 ; Bow- en v. Thwing, 56 Minn. 177, 57 N. W. 468; McNaught v. McClaugh- ry, 42 N. Y. 22, 1 Am. Rep. 487 ; Harrington v. Brown, 77 N. Y. 72 ; Paul v. Stackhouse, 38 Pa. 302. An agreement, prior to purchasing goods, that the buyer will procure a guarantor for the price, makes a guaranty binding, though the latter is given after the delivery of the goods. Windels v. Milwaukee Harvester Co., 39 111. App. 521 ; Standley v. Miles, 36 Miss. 434 ; Helios-Upton Co. v. Thomas, 96 App. Div. 401, 89 N. Y. Supp. 222. An agreement to give a bond to secure the performance of a building contract, if made before the work is begun, renders the bond enforceable, though not delivered until aft- erwards. SMITH v. MOLLESON. 148 N. Y. 241, 42 N. E. 669. § 51) OONSIDEEATION — LEGALITY. 53 bearance given by the creditor to the principal without previ- ous agreement. If, when a debt is due, the debtor should re- quest time for payment, and the creditor agrees to grant an extension if the principal will obtain the signature of a surety, this is a sufficient consideration to support the promise of the surety. The creditor, in such case, suffers a disadvantage. He had the right to proceed immediately against the principal, but has postponed that right, and, in the meantime, the finan- cial condition of the principal may change, so that all practical remedy against the principal is lost. In such case the sure- ty is liable. But if, from the kindness of his heart, the credit- or, without any agreement with the debtor, knowing that the latter's financial circumstances were such as to make it a hard- ship for him to make payment at the time the debt was due, should not request payment for some time after, and the prin- cipal, in gratitude for the forbearance of his creditor, should procure a surety for the debt, without any agreement as to further forbearance, the surety would not be bound, as the for- bearance was a past act, and the creditor does not incur any disadvantage additional to that which he has already in- curred. 117 Past and Future Acts. The contract of a surety to pay for services already render- ed without any agreement will be supported by a considera- tion, and therefore enforceable, if the contract includes pay- ment for services to be rendered, as well as those rendered prior to the agreement. 118 Such would be the case where a surety promises a physician to become responsible for services rendered for another in the past, if he would continue his pro- fessional attendance. The rendition of subsequent services by the physician, in reliance upon the surety's promise, is a con- sideration for the promise of the surety as to all of the serv- i" Webbe v. Romona Oolitic Stone Co., 58 111. App. 222 ; Mecor- ney v. Stanley, 62 Mass. (8 Cush.) 85; Hess' Estate, 150 Pa. 346, 24 Atl. 676 ; United States v. Linn, 15 Pet. 290, 10 L. Ed. 742. us It makes no difference that the greater part of the amount' guarantied is past indebtedness, if a portion is future. Clune v. Ford, 55 Hun, 479, 8 N. Y. Supp. 719. n» Bagley v. Moulton, 42 Vt 184. 54 FORMATION OF THE CONTRACT. (Oh. 2 Likewise, advancing money to the principal under an agree- ment with a person that the latter will guaranty the payment of advances already made as well as those to be made, is a consideration for such guaranty. 120 Presumption as to the Time of Making Contract. Where the contract of suretyship appears upon the same paper with the principal contract, the prima facie presumption is that they were made at the same time, and therefore that there is a consideration for the contract of suretyship if there is one for the principal contract. 121 Consideration Not Waived by a Writing. Sometimes an impression obtains that, if a contract of sure- tyship is evidenced in writing, it is unnecessary that there be any consideration. Possibly this impression arises from the fact that it is held, sometimes, that the writing need not dis- close the consideration. 122 However, a writing, unless under seal, 123 will not dispense with a consideration in any in-. stance. 124 Negotiable Instruments. A consideration is presumed in the case of negotiable in- struments, and this presumption is conclusive when the instru- 120 Hargroves v. Cooke, 15 Ga. 321 ; Oowan v. Roberts, 134 N. O. 415, 46 S. E. 979, 65 L. R. A. 729, 101 Am. St. Rep. 845 ; Peters v. Merchants' Bank, 149 Fed. 373, 79 C. "O. A. 193. But an agreement by the creditor to keep on working for the guarantor for full com- pensation is no consideration for a guaranty of past wages due from others. BELKNAP v. BENDER, 75 N. X. 446, 31 Am. Rep. 476. i2i Underwood v. Hossack, 38 111. 208; Arnold v. Bryant, 71 Ky. (8 Bush) 668; Gilman v. Lewis, 15 Me. (3 Shep.) 452; Bickford v. Gibbs, 8 Cush. (Mass.) 154; Higgins v. Watson, 1 Mich. (Man.) 428; Draper v. Snow, 20 N. Y. 331, 75 Am. Dec. 408 ; Snevily v. Johnston, 1 Watts & S. (Pa.) 307. 122 See post, § 74. 123 See ante, note 109. 12* The statute did: not dispense with anything which was essen- tial to the validity of a contract at the time the statute was enact- ed, but added the requirement of written evidence. Aldridge v. Tur- ner, 1 Gill & J. (Md.) 427 ; Tenney v. Prince, 4 Pick. (Mass.) 385, 16 Am. Dec. 347; Clark v. Small, 6 Yerg. (Tenn.) 418. § 51) CONSIDERATION — LEGALITY. 55 ment comes into the hands of a purchaser for value without notice. 120 Adequacy of Consideration. The law does not require adequacy of consideration. 126 Any benefit received, however small, will support the promise, if made without fraud. 127 So long as the consideration has some value in the eyes of the law, the courts will not inquire of what value it may be to the parties themselves ; otherwise the law, instead of the parties, would be making the bargain. A consideration of one dollar is sufficient to support a con- tract of suretyship for any amount. 128 The surety assumes the risk, and it is competent for him to fix the price as he chooses. 129 So, any detriment, however small, suffered by the promisee, is sufficient. 130 Forbearance. Forbearance to be given by the creditor to sue the princi- pal for an overdue debt is a sufficient consideration for the promise of a surety to pay the debt. 181 But the time must be 125 stone v. Bond, 2 Heisk. (Tenn.) 425. See Norton, Bills & Notes (3d Ed.) p. 276. 126 Taylor, Thomas & Co. v. Wightman, 51 Iowa, 411, 1 N. W. 607: DAVIS v. WELLS, 104 U. S. 164, 26 L. Ed. 686. See Clark, Con- tracts (2d Ed.) p. 112. 127 Williams v. Marshall, 42 Barb. (N. Y.) 524; DAVIS v. WELDS, 104 U. S. 164, 26 L. Ed. 686. 12 8 Jackson's Adm'r v. Jackson, 7 Ala. 791; DAVIS v. WELLS, 104 U. S. 159, 26 L. Ed. 686. Where a consideration is named, it does not prevent the real consideration being shown by oral evidence. Wills v. Ross, 77 Ind. 1, 40 Am. Rep. 279; Taylor, Thomas & Co. v. Wightman, 51 Iowa, 411, 1 N. W. 607. i2» Oakley v. Boorman, 21 Wend. (N. Y.) 588. 130 BALLARD v. BURTON, 64 Vt. 387, 24 Atl. 769, 16 L. R. A. 664. isi Ives v. McHard, 103 111. 97; Wylie v. Dickenson, 50 111. App. 622; Fuller v. Scott, 8 Kan. 27; King v. Upton, 4 Me. (4 Greenl.) 387, 16 Am. Dec. 266 ; Johnson v. Wilmarth, 54 Mass. (13 Mete.) 416 ; Calkins v. Chandler, 36 Mich. 320, 24 Am. Rep. 593 ; Peterson v. Rus- sell, 62 Minn. 220, 64 N. W. 555, 29 L. R. A. 612, 54 Am. St. Rep. 634 ; New Hampshire Sav. Bank v. Colcord, 15 N. H. 119, 41 Am. Dec. 685 ; Pennsylvania Coal Co. v. Blake, 85 N. Y. 226; McParland v. Smith, 6 Cow. (N. Y.) 669; Kean v. McKinsey, 2 Pa. (2 Barr) 30; Allen v. Morgan, 24 Tenn. (5 Humph.) 624; Dahlman v. Hammel, 45 Wis. 466. 56 FORMATION OP THE CONTRACT. (Ch. 2 definite; otherwise, the creditor may sue at any time, and would suffer no disadvantage, in which case there would be no consideration. The time is considered definite, if given for a considerable time, 132 a reasonable time, 138 or a convenient time, 13 * as these imply some length of time, and some detriment suffered by the creditor. An agreement to forbear for an indefinite time, and actual forbearance for a reasonable time, is sufficient. 135 Taking new security payable at a future date, which imposes a duty upon the creditor of waiting until the maturity of such new security, would be forbearance. 136 Actual forbearance may be some evidence to prove an agreement to forbear. 137 As stated above, it is necessary that the forbearance be given, in part at least, on account of the promise of the sure- ty. 138 A promise to forbear the prosecution of a claim which has no foundation is without consideration. 139 The withdrawal of a suit brought against the principal is a sufficient consideration for the promise of a surety to pay the debt which is the subject of the suit; such withdrawal having been made as the result of the agreement with the surety. 110 132 Maples v. Sidney, Cro. Jac. 683. las Lonsdale v. Brown, 4 Wash. C. O. 148, Fed. Cas. No. 8,494. 134 Tricket v. Mandlee, Sid. 45. 13 5 Wills v. Ross, 77 Ind. 1, 40 Am. Rep. 279; Rowlet v. Eubank, 1 Bush (Ky.) 477 ; Biting v. Vanderlyn, 4 Johns. (N. T.) 237 ; Thom- as v. Croft, 2 Rich. Law (S. C.) 113, 44 Am. Dec. 279 ; BALLARD v. BURTON, 64 Vt. 387, 24 Atl. 769, 16 L R. A. 664. is6 Andrews v. Marrett, 58 Me. 539; Eisner v. Keller, 3 Dalv (N. Y.) 485. 137 Steadman v. Guthrie, 4 Mete. (Ky.) 147 ; Douglass v. Reynolds, 7 Pet. (TJ. S.) 113, 8 L. Ed. 626. 13 8 Savage V; Bank, 112 Ala. 508, 20 South. 398; Breed v. Hill- house, 7 Conn. 523; Harwood v. Kiersted, 20 111. 367; Walker v. Sherman, 11 Mete. (Mass.) 170; Shupe v. Galbraith, 32 Pa. 10. . 138 Cabot v. Haskins, 20 Mass. (3 Pick.) 83. noCastner v. Slater, 50 Me. 212; Worcester Mechanics' Sav. Bank v. Hill, 113 Mass. 25. The release of an attachment is suffi- cient consideration. Smith v. Weed, 20 Wend. (N. Y.) 184, 32 Am. Dec. 525. Or that the creditor will make no additional costs or ex- penses. Wiggenhorn v. Fitzgerald, 5 Neb. (Unof.) 457, 98 N. W. 1079. § 51) CONSIDERATION — LEGALITY. 57 Extension of Time. An agreement on the part of the creditor to extend the time of payment by the principal for a definite time is a sufficient consideration for a promise by a surety to pay the debt; such extension having been given as the result of the surety's prom- ise. 1 " Release. The surrender of a promissory note signed by the principal alone is a sufficient consideration for a new one executed by the principal and a surety. 142 So, the relinquishment, by agreement, of a lien which secures a debt, is a consideration for the promise of a surety to pay the debt. 148 So if, by agreement, a seller relinquishes his right to rescind the sale on account of the fraud of the buyer, and to reclaim the goods, it is a consideration of a promise of a surety to pay the price. 144 Commissions allowed to an agent for the sale of property are a sufficient consideration for his guaranty of notes taken 141 First Nat. Bank of Monmouth v. Whitman, 66 111. 331; Mc- Hard v. Ives, 5 111. App. (5 Bradw.) 400 ; Coffin v. Trustees, 92 Ind. 337 ; Fuller v. Scott, 8 Kan. 27 ; Pulliam v. Withers, 38 Ky. (8 Da- na) 98, 33 Am. Dec. 479 ; Pratt v. Hedden, 121 Mass. 113 ; Stone v. White, 74 Mass. (8 Gray) 589 ; Lee v. Wisner, 38 Mich. 82 ; Peter- son v. Russell, 62 Minn. 220, 64 N. W. 555, 29 L. R. A. 612, 54 Am. St. Rep. 634 ; Faulkner v. Gilbert, 57 Neb. 544, 77 N. W.. 1072 ; Kean v. McKinsey, 2 Pa. (2 Barr) 30 ; Lonas v. Wolfe, 67 Term. (8 Baxt.) 179 ; Williamson v. Cline, 40 W. Va. 194, 20 S. E. 917 ; Dahlman v. Hammel, 45 Wis. 466. A pre-existing debt is a sufficient consider- ation for a guaranty of a third person's note delivered in payment thereof. Munson v. Adams, 89 111. 450. 1*2 Coffin v. Trustees of Asbury Univ., 92 Ind. 337; Miller v. Gard- ner, 49 Iowa, 234; Aultman & Taylor Co. v. Gorham, 87 Mich. 233, 49 N. W. 486; Queens County Bank v. Leavitt, 56 Hun, 647, 10 N. T. Supp. 194; BALLARD v. BURTON, 64 Vt 387, 24 Atl. 769, 16 L. R. A. 664. i43Killian v. Ashley, 24 Ark. 511, 91 Am. Dec. 519; Bluthenthal v. Moore, 106 Ga. 424, 32 S. B. 344. Where the seller of goods deliv- ered to a vessel refused to allow It to depart until the price of the goods was guarantied, there is a sufficient consideration for the guar- anty. Washington Iron Works v. McNaught, 35 Wash. 10, 76 Pac. 301. "* Harwood v. Kiersted, 20 HI. 367 ; Jaffray v. Brown, 74 N. Y. 393. 58 FORMATION OF THE CONTRACT. (Oh. 2 by him in payment. 1 * 5 So, leaving a claim in the hands of an attorney for him to control and collect is a sufficient considera- tion for a contemporaneous guaranty of the claim by him. 148 The assent of an insurance company .to the assignment of a policy is a sufficient consideration for a guaranty of payment of the premium by the assignee, such assent having been given on that condition. 147 The institution of a suit may be the consideration of an obligation by the sureties to become re- sponsible for the costs. 148 Moral Obligation Insufficient. A moral obligation will not support a contract of surety- ship. 149 Where a married woman became surety for another, but her contract was void on account of her being married, a renewal of her promise after the passage of a statute author- izing such contracts could not be enforced. Her original promise having been void, there was no consideration for her subsequent promise, however great the moral obligation on her part might be. 150 There is no consideration for bonds which are improperly given. A bond given to a sheriff to induce him to perform a duty enjoined upon him by law is void. So is an appeal bond given by an administrator, where the administrator is exempt from giving such a bond by reason of having already given a bond as administrator. 161 An appeal bond is without consid- eration, where the judgment appealed from is a nullity. 162 A bond may be without consideration as to part only, as where an appeal bond might be void for want of consideration as to the judgment, but valid as to the costs. 163 1*6 Newton Wagon Co. v. Diers, 10 Neb. 284, 4 N. W. 995. See, also, Alter v. Hornor, 33 La. Ann. 243. i*e Gregory v. Gleed; 33 Vt 405. 1*7 New England Marine Ins. Co. v. De Wolf, 25 Mass. (8 Pick.) 56. i*s McDonald v. Wood, 118 Ala. 589, 24 South. 86. i*» Martin's Estate, 131 Pa. 638, 18 Atl. 987. iGo Holloway's Assignee v. Rudy, 60 S. W. 650, 22 Ky. Law Rep. 1406, 53 L. R A. 353. Where a person is induced to buy corporate stock, which is afterwards guarantied by the seller, there is no con- sideration for the guaranty. Martin's Estate, 5 Pa. Oo. Ct R. 555. mi Buttlar v. Davis, 52 Tex. 74. 162 Hessey v. Heitkamp, 9 Mo. App. 36. 163 Byrne v. Riddell, 4 La. Ann. 3 ; Post v. Doremus, 60 N. X. 371. §§ 52-53 V STATUTORY INCAPACITT. 59 Illegal Consideration. An illegal consideration is no consideration at all. 1 "* A note signed by a surety upon the promise that the principal would not be prosecuted for embezzlement is void. 1 " So would a note, signed by a surety, which was given for a gambling debt. 106 Likewise, a note given to a public officer for a loan of the public funds for private use would be con- trary to public policy, and therefore illegal, and a surety there- on would not be liable. 1 " COMPETENCY OP PARTIES. 52. A surety must have legal capacity to make a contract. In- capacity may arise from— (a) Infancy. (b) Insanity. (c) Drunkenness. (d) Coverture. (e) Ultra vires acts of corporations. STATUTORY INCAPACITY. 53. Although certain classes of persons are forbidden by stat- ute to enter into particular contracts of suretyship, they are bound nevertheless if they do enter into them. is* Daniels v. Barney, 22 Ind. 207; Levy v. Wise, 15 La. Ann. 38; Tandy v. Elmore-Cooper Co., 113 Mo. App. 409, 87 S. W. 614. But if the money be delivered to the surety to be paid to the creditor, and the surety agrees to pay, he will be liable. Barker v. Parker, 23 Ark. 390. 155 United States Fidelity & Guaranty Co. v. Charles, 131 Ala. 658, 31 South. 558, 57 L. R. A. 212 ; Rouse v. Mohr, 29 111. App. 321 ; Gor- ham v. Keyes, 137 Mass. 583 ; Board of Education of Hartford Tp. v. Thompson, 33 Ohio St 321. ice Leckie v. Scott, 10 La. 412. A surety on a note may defend by showing that it was given to pay an election bet. Harley v. Sta- pleton's Adm'r, 24 Mo. 248. 157 Board of Education of Hartford Tp. v. Thompson, 33 Ohio St. 321. 60 FORMATION OF THE CONTRACT. (Oh. 2 The rules as to the competency of the parties to a contract of suretyship are the same as in other kinds of contracts; 158 and they will be. treated very briefly here, except so far as they are peculiar to this relation. Sureties must have the same capacity required in the making of any contract. The insolvency of the surety at the time he entered into the contract is not, in itself, incapacity. 150 Infancy. An infant's liability as surety does not differ from that on his other business contracts. His contracts are voidable at his option, 160 and may be disaffirmed by him at any time previ- ous to his majority, or within a reasonable time thereafter. After majority, he may ratify his contract, if he has full knowledge that he was not bound, and his contract will be- come binding upon him then. 161 Insanity and Drunkenness. A contract of suretyship made by an insane person is not binding upon him, 162 although the creditor had no knowledge of the surety's unsoundness of mind; 16S nor are the contracts of an intoxicated person binding upon him. 164 Married Women. At common law a married woman lacked capacity to enter into most contracts, though in equity she was allowed to enter into contracts in respect to her separate estate. 165 This dis- ability has been more or less removed by statute in most, if not in all, states. In some states she has the same power to enter into contracts as if she were unmarried, in which case IBs See Clark, Contracts (2d Ed.) c. VI. 159 Allen v. Morgan, 5 Humph. (Tenn.) 624. i6o See Clark, Contracts (2d Ed.) p. 149. As to the liability of a surety where the principal is an infant, see post, § 130. i6i Fetrow v. Wiseman, 40 Ind. 148; Owen v. Long, 112 Mass. 403; Hinely v. Margaritz, 3 Pa. 428. i62Burnham v. Kidwell, 113 III. 425; Somers v. Pumphrey, 24 Ind. 231; Ingraham v. Baldwin, 9 N. Y. 45. 163 Van Patton v. Beals, 46 Iowa, 62. 164 Clark, Contracts (2d Ed.) p. 186. i6o Savings Bank v. Scott, 10 Neb. 83, 4 N. W. 314; Cartan v. Da- vid, 18 Nev. 310, 4 Pac. 61. § 53) STATUTORY INCAPACITY. 61 she may become a surety for any purpose. 166 In other states, while her right to enter into contracts generally is extended to her, the power to become surety is expressly denied; the in- tention being, in such states, to remove her disabilities for her interest, and not to enable her to enter into contracts from which no benefit could be derived. 167 In another class of states, the right to become a surety is given, except in certain particular cases, 108 as she may not become a surety for her husband, the idea being that, when asked to become a surety for her husband, she might not feel the same freedom of action as she would if asked to become a surety for some one who did not exercise so much influence over her. The statutes are so different in the various states, have received such different constructions, and are being made the subject of such frequent amendment, that no attempt will be made here to classify them, but reference should be had to the statute whenever it is desired to ascertain the rights of a married woman in a par- ticular state. Ultra Vires Acts of a Corporation. A corporation has no power to enter into contracts that are not within the express or implied powers of its charter, or that are forbidden by the statutes of the state in which it is formed. Acts which are not within its powers are termed "ultra vires." For this reason, a corporation, generally, has no right to be- come a surety unless it is formed for that purpose, or it be- comes such in the regular course of its business. 169 In these days many corporations have been formed for the very purpose of becoming sureties, and their contracts of suretyship are within their powers ; 17 ° but, unless a corporation becomes a lee Worrell v. E'orsyth, 141 111. 22, 30 N. E. 673. 1st Athol Macli. Co. v. Fuller, 107 Mass. 437 : West v. Laraway, 28 Mich. 464; Gwynn v. Gwynn, 31 S. C. 482, 10 S. B. 221, ios in Arkansas a married woman cannot become surety on an offi- cial bond. Hyner v. Dickinson, 32 Ark. 776. leo Heims Brewing Co. v. Flannery, 137 111. 309, 27 N. E. 286; Ar- not v. Erie R. Co., 67 N. Y. 315 ; Philadelphia & R. R. Co. v. Knight, 124 Pa. 58, 16 Atl. 492 ; Green Bay & M. R. R. Co. v. Union S. Co.. 107 U. S. 98, 2 Sup. Ct. 221, 27 L. Ed. 413. i7o Cramer v. Tittle, 72 Cal. 12, 12 Pac. 869; Gans v. Carter, 77 Md. 1, 25 Atl. 663; Steel v. Auditor General, 111 Mich. 381, 69 N. W. 738; Hurd v. Railroad Co., 33 Hun (N. Y.) 109. 62 POEMATION OF THE CONTRACT. (Ch. 2 surety for the purpose of increasing its trade or business, 171 and is within the scope of its business, its contracts could not be enforced. 172 Thus, while a bank, in transferring a promis- sory note, which it owned, might find it necessary to guaranty its payment in order to effect the transfer, and thus receive a benefit, 178 it could not guaranty the note of some third person as an act of friendship, for the accommodation of such third person; the bank having no interest in the giving of the note. 174 A railway company would have no power to guaranty the payment of bonds issued by another corporation, 175 un- less such bonds had been issued in aid of the road, as would be the case where cities or counties have issued bonds in aid of the construction of a railroad. As the company might have issued its own bonds for that purpose, it was held that it might guaranty bonds which accomplished the same end. 178 To make a contract of suretyship by a corporation within its powers, on the ground that the contract was in furtherance of its business, the contract must be one which causes a direct- benefit, and not one which may indirectly benefit. Thus, while iti Heims Brewing Oo. v. Flannery, 137 III. 309, 27 N. E. 286; Fuld v. Brewing Co. (Com. PI.) 18 N. Y. Supp. 456. 172 First Nat Bank of Gadsden v. Winchester, 119 Ala." 168, 24 South. 351, 72 Am. St. Rep. 904. A corporation is not estopped to set up ultra vires as a defense. Best Brewing Co. v. Klassen, 185 111. 37, 57 N. E. 20, 50 L. R. A. 765, 76 Am. St. Rep. 26 ; Lucas v. White Line T. Co., 70 Iowa, 541, 30 N. W. 771, 59 Am. Rep. 449. i"Talman v. Rochester City Bank, 18 Barb. (N. Y.) 123; People's Bank of Bellevilli v. Bank, 101 U. S. 181, 25 L. Ed. 907. Where a railroad company, without authority, guarantied the interest coupons of the bonds of another railroad company, and subsequently became the owner of the bonds, it would be liable to a person to whom the bonds were transferred afterwards; the guaranty not having been canceled. Arnot v. Railroad Co., 67 N. Y. 315. it* Hall v. Auburn Co., 27 Cal. 256, 87 Am. Dec. 75 ; Lucas v. White Line T. Co., 70 Iowa, 541, 30 N. W. 771, 59 Am. Rep. 449 ; Lafayette Sav. Bank v. St. Louis Stoneware Co.. 2 Mo. App. 299; Norton v. Bank, 61 N. H. 589, 60 Am. Rep. 334 ; National Park Bank v. German Co., 116 N. Y. 281, 22 N. E. 567, 5 L. R. A. 673 ; Culver v. Real Estate Co., 91 Pa. 367. I 1 " Elevator Co. v. Railroad Co., 85 Tenn. (1 Pickle) 703, 5 S. W. 52, 4 Am. St. Rep. 798. ire Philadelphia & R. R. Co. v. Knight, 124 Pa. 58, 16 Atl. 492; Chicago, R. I. & P. R. Co. v. Howard, 7 Wall. (TJ. S.) 392, 19 L. Ed. 117. § 53) STATUTORY INCAPACITY. 63 a brewing company might guaranty the rent of a place where its products are to be sold, 177 or a lumber company might be- come surety for a contractor who is to buy lumber from it, 178 a corporation would not be liable as a surety on an appeal bond, although the appeal might affect it indirectly, as making ap- peals in court cannot be said to be in the line of trade. 17 ' A corporation, however, will be liable upon a negotiable note given as security, if it come into the hands of a purchaser for value without notice. 180 Statutory Incapacity. Sometimes certain classes of persons are prohibited by stat- ute from entering into particular contracts of suretyship; but the rule is clear that, if such persons do enter into con- tracts of that nature, they are bound nevertheless. 181 In the absence of statutory provisions, an attorney may become a surety for his client; 182 but, if he violates a statute or a rule of court in this respect, he will not be allowed to take advan- tage of his own wrong. 183 The same rule applies to a judge 177 Winterfield! v. Brewing Oo., 96 Wis. 239, 71 N. W. 101. "8 Wittmer Lumber Oo. v. Rice, 23 Ind. App. 586, 55 N. B. 868. 179 Best Brewing Co. v. Klassen, 185 111. 37, 57 N. E. 20, 50 L. R. A. 765, 76 Am. St. Rep. 26. So a corporation engaged in the manu- facture and sale of musical instruments would not be liable on a guaranty of the expenses of a musical festival. Davis v. Railroad Co., 131 Mass. 258, 41 Am. Rep. 221. iso Monument Nat. Bank v. Globe Works, 101 Mass. 57, 3 Am. Rep. 322. See Norton, Bills & Notes (3d Ed.) p. 222. isi Branch Bank at Decatur v. Douglass, 9 Ala. 853; Ullery v. Ko- kott, 15 Colo. App. 138, 61 Pac. 189 ; Cunningham v. Tucker, 14 Fla. 251; Ohio & M. Ry. Co. v. Hardy, 64 Ind. 454; Cook v. Caraway, 29 Kan. 41; Holandsworth v. Commonwealth, 11 Bush (Ky.) 617; State ex rel. Howell County v. Findley, 101 Mo. 368, 14 S. W. Ill ; Tessier v. Crowley, 17 Neb. 207, 22 N. W. 422 ; Kohn v. Washer, 69 Tex. 67, 6 S. W. 551, 5 Am. St. Rep. 28. 182 Abbott v. Zeigler, 9 Ind. 511 ; Walker v. Holmes, 22 Wend. (N. Y.) 614. 183 jack v. People, 19 111. 57; Ohio & M. Ry. Co. v. Hardy, 64 Ind. 454 ; Wright v. Schmidt, 47 Iowa, 233 ; Cook v. Caraway, 29 Kan. 41 ; Holandsworth v. Commonwealth, 11 Bush (Ky.) 617 ; Morrill v. Lam- son, 138 Mass. 115; Tessier v. Crowley, 17 Neb. 207, 22 N. W. 422; Wallace v. Scoles, 6 Ohio, 429 ; Kohn v. Washer, 69 Tex. 67, 6 S. W. 551, 5 Am. St Rep. 28 ; Pond du Lac v. Moore, 58 Wis. 170, 15 N. W. 782. It is bad policy for an attorney to become surety for his client, 64 FORMATION OF THE CONTRACT. (Ch. 2 of court. 184 Where a statute provides that sureties, in certain cases, shall be residents of the county 185 or state 186 where the contract is executed, the statute is directory merely, and a surety will be estopped from claiming his nonresidence as a defense. 187 If a statute require more than one surety upon a bond, a surety who has undertaken to be solely liable would be bound. 188 The object of the statute is for the better protec- tion of the obligee, and not for the benefit of the surety. FRAUD. 54. If a surety is induced to enter into his contract by reason of any false statements, or the concealment of material facts by the creditor or obligee, or by the authority or with the knowledge of the latter, the surety is not liable. and is unnecessary in these days of surety companies. It looks like eagerness to secure the case, and clients will begin to expect it. It is especially undesirable in the case of an appeal, as it looks as if the attorney felt that he was to blame in not winning the suit in the lower court ; and, as he has made himself liable in event of being unsuccess- ful on appeal, the client may be inclined to allow the attorney to take care of the matter without assistance. is* State ex rel. Howell County v. Findly, 101 Mo. 368, 14 S. W. 111. is5 state v. Flinn, 77 Ala. 100. 186 Commonwealth v. Ramsay, 2 Duv. (Ky.) 385; Board of School Directors of Parish of Madison v. Brown, 33 La. Ann. 383. 18 7 Gossett v. Cashell, 14 La. 245. is8 Justices of Inferior Caurt of Scriven County v. Ennis, 5 Ga. 569; People v. Race, 2 111. App. (2 Bradw.) 563. Bank of Brighton v. Smith, 5 Allen, 413 ; People v. Johr, 22 Mich. 461 ; Gray v. School District of Norfolk, 35 Neb. 438, 53 N. W. 377; State v. Benton, 48 N. H. 551; Shaw v. Tobias, 3 N. Y. 188 ; Cochran v. Wood, 29 N. C. 215 ; Allen v. Kellam, 94 Pa. 253 ; Reynolds v. Dechaums, 24 Tex. 174, 76 Am. Dec. 101 ; Baltimore & O. R. Co. v. Vanderwarker, 19 W. Va. 265. Two sureties will be dispensed with if the bond be signed by a guaranty company. Cramer v. Tittle, 72 Oal. 12, 12 Pac. 869 ; Travis v. Travis, 48 Hun, 343, 1 N. T. Supp. 357. A surety is bound, although mortgage security, as required by statute, is not taken. Scotten v. State, 51 Ind. 52. See, also, State v. Wiley, 15 Iowa, 155. Where a by-law requires three sureties to a bond, but only two sign, they are liable. Dalton v. Miami Tribe, 5 Ohio Dec. 42. § 54) FRAUD. 65 It is the duty of a creditor or obligee to use the utmost good faith toward a surety pending negotiations looking toward the contract, and a failure to do so may be set up by the surety as a valid defense when sued, as he has become a surety on a contract which he did not have in contemplation. 189 This rule requires the creditor or obligee to answer all questions asked of him, not only truly, but he must make a full disclosure of everything which would naturally influence the decision of the one about to become a surety; 18 ° and, further, it is his duty to volunteer information when it is apparent to him that the surety is entering into the contract through ignorance of facts which amount to deception. 191 Fraud may arise from conceal- ment, as well as from a false statement. However, unless ask- ed in regard to a matter, it is not the duty of the creditor or obligee voluntarily to seek the surety, 192 and to disclose facts which are open equally to the knowledge of each party. It is 189 Evans v. Keeland, 9 Ala. 42; Taylor v. Lohman, 74 Ind. 418; Graves v. Lebanon Nat Bank, 10 Bush (Ky.) 23, 19 Am. Rep. 50; Franklin Bank v. Stevens, 39 Me. 532 ; STATE v. SOOY, 39 N. J. Law (10 Vroom) 135 ; Farmers' Nat. Bank v. Van Slyke, 49 Hun, 7, 1 N. Y. Supp. 508; Frisch v. Miller, 5 Pa. 310; Jungk v. Reed, 9 Utah, 49, 33 Pac. 236 ; Rathbone, Sard & Co. v. Frost, 9 Wash. 162, 37 Pac. 162 ; Warren v. Branch, 15 W. Va. 21 ; New Home Sewing Mach. Co. v. Simon, 104 Wis. 120, 80 N. W. 71. Where sureties sign notes given in a composition with creditors, they will not be liable to such creditors as have a secret agreement with the principal to pay them more. POWERS DRY GOODS CO. v. HARLIN, 68 Minn. 193, 71 N. W. 16, 64 Am. St. Rep. 460. A guaranty was given for the payment of pig iron. By a secret agreement between the seller and buyer, the latter was to pay more than the market price ; the excess going toward an old debt. The guarantor was not liable, as he reasonably might suppose that the iron would be supplied at the market price. PIDCOCK v. BISHOP, 3 L. J. R. K. B. 109, 3 B. & C. 605. A surety who has been induced to become such by fraudulent representations is not estopped from setting up the defense of fraud. Melick v. First Nat. Bank of Tama City, 52 Iowa, 94, 2 N. W. 1021. ioo Bank of Monroe v. Anderson Co., 05 Iowa, 692, 22 N. W. 929; Remington Co. v. Kezertee, 49 Wis. 409, 5 N. W. 809. i9i Franklin Bank v. Cooper, 39 Me. 542. i»2 NORTH BRITISH INS. CO. v. LLOYD, 10 Excb. 523. It is not the duty of the creditor to disclose the fact that the principal is in- debted to him, if the guaranty is not to apply to the arrears. Pala- tine CO. v. Crittenden, 18 Mont 413, 45 Pac. 555. Or that the creditor is entering into other contracts with the principal without security. Chilos' Subetyship— 5 66 FORMATION OF THE CONTRACT. (Ch. 2 the duty of the surety to protect himself, and to ascertain the risk he is incurring, and he cannot, by his neglect, throw the burden on the creditor or obligee to inform him as to matters which he could ascertain for himself without difficulty. 198 Were the creditor required to dwell upon the risk the surety is running by entering into such a contract, it would be well- nigh impossible to find any one willing to become a surety. 19 * Thus, if the principal be insolvent, and that fact be known to the creditor, and the surety ask no questions, nor says any- thing to indicate his lack of knowledge upon that point, and such fact could be ascertained by the surety, the creditor is not required voluntarily to disclose that fact, although the creditor may feel pretty sure that the surety ultimately will be called upon for payment; 195 but where a person becomes a surety upon a bond of an employe, and the obligee knows that such employe is, at that time, a defaulter, the surety will not be liable upon the bond, although he makes no inquiry upon that point, and. the surety and obligee do not meet pend- ing negotiations. 188 While a person might be willing to as- Booth v. Storrs, 75 111. 438. Or that the creditor is not taking any other security for the property sold than that of the surety, although the surety thinks otherwise, if there be no fraudulent motive on the part of the creditor. Warren v. Branch, 15 W. Va. 21. las Roper v. Sangamon Lodge, 91 111. 518, 33 Am. Rep. 60; Atlas Bank v. Brownell, 9 R. I. 168, 11 Am. Rep. 231. The strict rule ap- plicable to contracts of insurance, that all material facts must be disclosed, does not apply to guaranties, if there be no fraud. This is peculiar to insurance, for the insured knows, and the insurer does not. NORTH BRITISH INS. CO. v. LLOYD, 10 Exch. 523. i»4 Sherman v. Harbin, 125 Iowa, 174, 100 N. W. 629; Wythes v. Labouchere, 3 De G. & J. 593, 5 Jur. (N. S.) 499. 196 yan Arsdale v. Howard, 5 Ala. 596; Ham v. Oreve, 34 Ind. 18; Farmers' & Drovers' Nat. Bank v. Braden, 145 Pa. 473, 22 Atl. 1045 ; Magee v. Manhattan Life Ins. Co., 92 U. S. 93, 23 L. Ed. 699. 196 Guardian Fire & Life Assur. Co. v. Thompson, 68 Cal. 208, 9 Pac. 1 ; Drabek v. Grand Lodge, 24 111. App. 82 ; Wilson v. Monticello, 85 Ind. 10; Bank of Monroe v. Anderson Co., Go Iowa, 692, 22 N. W. 929 ; Belleview Loan & Building Ass'n v. Jeckel, 104 Ky. 159, 46 S. W. 482 ; Franklin Bank v. Cooper, 39 Me. 542 ; Hudson v. Miles, 185 Mass. 582, 71 N. E. 63, 102 Am. St Rep. 370 ; Traders' Ins. Co. v. Herber, 67 Minn. 106, 69 N. W. 701 ; Third Nat. Bank v. Owen, 101 Mo. 558, 14 S. W. 632 ; STATE v. SOOT, 39 N. J. Law, 135 ; Wells, Fargo & Co.'s Exp. v. Walker, 9 N. M. 170, 50 Pac. 353, 923; United States § 54) FRAUD. 67 sume the risk of becoming a surety for an insolvent person, it is not to be supposed that any one knowingly would go up- on the bond of a defaulting employe, and it is the duty of the obligee to ascertain whether the surety has knowledge of that fact. The continuance of a dishonest agent is an act so ex- pressive of trust and confidence that it is tantamount to a declaration to that effect. 197 If the employer could not have failed to draw the inference, from facts known to him, that an employe is a defaulter, he is charged with knowledge. 198 A statement that the contract is a mere matter of form is not fraudulent, as the making of any contract is a matter of form, and such statements are so common, when asking a person for his signature to a contract, that no one should be deceived. 199 Concealment by Agent. Knowledge by one employe or agent of the obligee of de- faults by another employe cannot be imputed to the employer, so as to free a surety from liability upon the bond of a de- faulting employe ; 20 ° nor will a surety be free from liability on account of an incorrect statement made, without authority, Life CO. v. Salmon, 91 Hun, 535, 36 N. Y. Supp. 830 ; Smith v. Josselyn, 40 Ohio St. 409 ; Wayne v. Commercial Bank, 52 Pa. 343 ; Atlas Bank v. Brownell, 9 B. I. 168, 11 Am. Rep. 231 ; Wilmington v. Ling, 18 S. C. 116 ; Screwmen's Benevolent Ass'n v. Smith, 70 Tex. 168, 7 S. W. 793. Connecticut General Life Ins. Co. v. Chase, 72 Vt 176, 47 Atl. 825, 53 L. B. A. 510 ; SMITH v. BANK OP SCOTLAND, 1 Dow, 272. Where the principal is heavily indebted, and the creditor requires an additional guaranty which is retroactive, so that the guarantor, on signing, becomes liable immediately for past indebtedness, the failure to disclose these facts, and the additional fact that another guarantor was involved already, will discharge the guarantor. LEE v. JONES. 17 C. B. (N. S.) 482. 19 7 STATE v. SOOY, 39 N. J. Law, 135; Dinsmore v. Tidball, 34 Ohio St 411. iss National Bank of Asheville v. Fidelity & C. Co., 89 Fed. 819, 32 C. C. A. 355. 199 Wright v. Remington, 41 N. J. Law (12 Vroom) 48, 32 Am. Rep. 180 ; McMinn v. Patton, 92 N. C. 371 ; Smyley v. Head, 2 Rich. Law (S. C.) 590, 45 Am. Dec. 750 ; Oregon Nat. Bank of Portland v. Gard- ner, 13 Wash. 154, 42 Pac. 545. 200 Oawley v. People, 95 111. 249; Board of Sup'rs of Monroe Coun- ty v. Otis, 62 N. Y. 88. 68 FORMATION OF THE CONTRACT. (Ch. 2 by an agent of the obligee. 201 If, however, the default of one employe is known to another within the scope of whose duties it would be to act upon the discovery of such default, his con- cealment of the default would free the surety for the default- ing employe from liability as to future defaults. Reckless Statements. Statements may be fraudulent where they are recklessly made, and the person making them does not know whether they be true or false. Thus, where a banking association, pursuant to the provisions of law, ignorantly published a state- ment purporting to give full and complete knowledge of the condition of the bank for official information, from which it appeared that its affairs were being prudently and honestly administered, and from which the inference would be drawn rightly that the cashier was trustworthy, when in fact he was guilty of repeated embezzlements and fraud, which could have been discovered easily by the exercise of slight diligence on the part of the association, 202 persons who were induced by such statement to become sureties for the cashier were not liable. Misrepresentations in Good Faith. Concealment may be undue, although not willful, nor inten- tional, nor with any view to gaining an advantage. If the creditor or obligee has no knowledge of facts, he cannot be said to be guilty of fraudulent statements or concealment, al- though he might have discovered them. 203 To constitute 201 United States Fidelity & Guaranty Co. v. Muir, 115 Fed. 264, 53 O. C. A. 56. 202 Graves v. Lebanon Nat. Bank, 73 Ky. (10 Bush) 23, 19 Am. Rep. 50; Deposit Bank of Midway's Assignee v. Heame, 104 Ky. 819, 48 S. W. 160. 2os Home Ins. Co. v. Holway, 55 Iowa, 571, 8 N. W. 457, 39 Am. Rep. 179; Tapley v. Martin, 116 Mass. 275; Bowne v. Bank, 45 N. J. Law, 361 ; Wayne v. Bank, 52 Pa. 343. The published reports of a bank, which have not been made to induce a person to sign the bond of an employg, will furnish no relief to a surety, although he relied upon them, and they failed to show defalcations of such employe ; the latter having concealed them by false entries. Lieberman v. First Nat Bank, 2 Pennewill's (Del.) 416, 45 Atl. 901, 48 L. R. A. 514, 82 Am. St Rep. 414 ; Ashuelot Sav. Bank v. Albee, 63 N. H. 152, 56 Am. Rep. 501. This might have been otherwise If there had been willful § 54) FKATJD. 69 fraud, in such a case, the obligee would have to be guilty of willful ignorance or the grossest neglect. It not infrequently happens that, at the time an employe gives a bond for the faithful performance of his services, he is a defaulter, and that fact could have been ascertained without difficulty by an examination of his accounts. But if the obligee, in ignorance of the default, should say that the employe always had per- formed his work satisfactorily, he could not be successfully charged with fraud. 204 An honest misstatement made by the creditor, which is known by the surety not to be true, cannot be taken advantage of by the latter ; nor could a misstatement which was not re- lied on; but an incorrect statement of a material fact, though honestly made, would free a surety from liability. 205 Immaterial Facts. It is not incumbent upon the creditor to disclose facts which are not material, 206 though it is not within the province either of the creditor or of the surety to decide whether certain facts are or are not material, but that fact must be adjudicated, as any other would be. 207 The obligee is not bound to disclose mere irregularities, nor omissions not amounting to dishonesty or unfaithfulness. 208 The sureties are supposed to know the character of their prin- cipal. It is not fraud upon the sureties that the principal was be- hind in his accounts, 209 if the obligee does not know or have ignorance, or gross negligence in not discovering the defalcations. See preceding paragraph. 20* Mutual Life Ins. Co. v. Wilcox, 8 Biss. 197, Fed. Cas. No. 9,979. 205 Isaac Harter Co. v. Pearson, 26 Ohio Cir. Ct R. 601. 2oe Comstock v. Gage, 91 111. 328. 20T it is not a question of good memory or of good sense. The sure- ty cannot know what is passing in the mind of the other party. RAIL- TON v. MATHEWS, 10 Clark & F. 934. 208 Home Co. v. Holway, 55 Iowa, 571, 8 N. W. 457, 39 Am. Rep. 179 • BOSTWICK v. VAN VOORHIS, 91 N. Y. 353 ; Screwmen's Benev- olent Ass'n v. Smith, 70 Tex. 168, 7 S. W. 793. 209 Roper v. Sangamon Lodge, 91 111. 518, 33 Am. Rep. 60; Water- town Fire Ins. Co. v. Simmons, 131 Mass. 85, 41 Am. Rep. 196 ; Pitts- burg, Ft. W. & C. Ry. Co. v. Shaeffer, 59 Pa. 350; Wilmington C. & A. R. Co. v. Ling, 18 S. C. 116. 70 FORMATION OF THE CONTRACT. (Ch. 2 reason to suppose that he is guilty of actual default. The obligee is not required to disclose information which does not relate to the business which is the subject of the suretyship, nor facts which relate to the general character of the princi- pal, as that he gambles; 210 nor is the obligee bound to disclose mere rumors. 211 Fraud by Principal or by Third Persons. In order that a surety may be free from liability upon his contract by reason of fraud pending its formation, it is not requisite that the creditor personally make the false statement ; but it is requisite that he authorize or be connected with them in some way. 212 It is sufficient if he have notice that they have been made to the creditor, 213 as would be the case if he were standing by at the time. 214 The surety cannot claim freedom from liability when the false statements were made by the principal without the knowledge of the creditor or ob- ligee. 215 Thus, where a person signs an instrument without 210 Atlas Bank v. Brownell, 9. R. I. 168, 11 Am. Rep. 231. 2" State, to Use of Southern Bank, v. Atherton, 40 Mo. 209. 2i 2 Marks v. First Bank, 79 Ala. 550, 58 Am. Rep. 620 ; Davis Sewing Mach. Co. v. Buckles, 89 111. 237 ; LUCAS v. OWENS, 113 Ind. 521, 16 N. B. 196 ; Bank of Monroe v. Anderson Co., 65 Iowa, 692, 22 N. W. 929 ; Martin v. Campbell, 120 Mass. 126 ; Beath v. Chapoton, 115 Mich. 506, 73 N. W. 806, 69 Am. St. Rep. 589; Linn County v. Farris, 52 Mo. 75, 14 Am. Rep. 389 ; Page v. Krekey, 137 N. X. 307, 33 N. E. 311, 21 L. R. A. 409, 33 Am. St. Rep. 731, affirming 63 Hun, 629, 17 N. T. Supp. 764; Kulp v. Brant, 162 Pa. 222, 29 Atl. 729; Riley v. Reifert (Tex. Civ. App.) 32 S. W. 185 ; Quinn v. Hard, 43 Vt. 375, 5 Am. Rep. 284 ; Griffith v. Reynolds, 4 Grat. (Va.) 46 ; Wallace v. Wilder (C. C.) 13 Fed. 707; 40 Cent. Dig. col. 1736. A surety is estopped to deny liability because he thought the bond was other than it was, if he is not prevented from reading it through any fraud of the obligee. John- ston v. Patterson, 114 Pa. 398, 6 Atl. 746. 213 Casont v. Jerome, 58 N. Y. 315. 21* First Nat. Bank v. Terry (C. C.) 135 Fed. 621. 2iB Davis Sewing Mach. Co. v. Buckles, 89 111. 237; Lucas v. Owens, 113 Ind. 521, 16 N. E. 196 ; Taylor County v. King, 73 Iowa, 153, 34 N. W. 774, 5 Am. St. Rep. 666; Sebastian v. Johnson, 2 Duv. (Ky.) 101 ; State v. Peck, 53 Me. 284 ; Hudson v. Miles, 185 Mass. 582, 71 N. E. 63, 102 Am. St. Rep. 370; McCormick v. Bay City, 23 Mich. 457; Graves v. Tucker, 10 Smedes & M. (Miss.) 9 ; Powers v. Clarke, 127 N. Y. 417, 28 N. E. 402 ; Dangler v. Baker, 35 Ohio St. 673 ; Rother- § 55) DURESS. 71 reading it, upon the representation of the principal that it is different from what it really is, and the creditor or obligee is not aware of the fraud, the surety is bound nevertheless ; 216 nor can the surety claim that he is not liable, where the false representations are made by a third person. 217 Waiver of Defense. If a surety, after knowledge of the fact that his contract was procured through false representations, but in ignorance of his legal rights, obtain an extension of time, in consideration of his promise of payment, he will be deemed to have waived his defense, and will be liable. 218 DURESS. 55. A surety is not liable if he executed his contract under duress. The mutual consent which is essential to every contract must be real ; 210 hence, if a contract of suretyship be executed by a surety under duress, he will not be bound. 220 As in the case of a contract entered into through fraud, he is making a contract which he did not intend to make. Thus, where a creditor induced a wife, who was in a delicate condition, to indorse her husband's note under threat to send him to state's prison if she refused, it was held that she might avail herself of the defense of duress. 221 mal v. Hughes, 134 Pa. 510, 19 Atl. 677 ; Griffith v. Reynolds, 4 Grat. (Va.) 46 ; Wallace v. Wilder (C. G.) 13 Fed. 707. 2ie Metropolitan Loan Ass'n v. Esche, 75 Cal. 513, 17 Pac. 675 ; Wright v. Flinn, 33 Iowa, 159 ; Glenn v. Statler, 42 Iowa, 107. 2" Brown v. Davenport, 76 Ga. 799; STATE v. SOOY, 39 N. J. Law, 135. 2is Western Electric Co. v. Hart, 103 Mich. 477, 61 N. W. 867; Eindskopf v. Doman, 28 Ohio St 516. Likewise, a guarantor waives his rights when he goes on after discovering the misrepresentations made to him. Emerson-Newton Implement Co. v. Cupps (N. D. 1906) 108 N. W. 796 ; Drovers' Live Stock Commission Co. v. Charles Wolff Packing Co. (Kan.) 86 Pac. 128. 2i» Clark, Contracts (2d Ed.) p. 195. 220 Small v. Currie, 2 Drew. 102. 221 Ingersoll v. Roe, 65 Barb. (N. T.) 346. Where a mortgagee of cattle was compelled to guaranty a note of the mortgagor before the 72 FORMATION OF THE CONTRACT. (Oil. 2 Duress by Principal. Duress by the principal will not free a surety from liability, if the obligee take the obligation in good faith." 2 ILLEGALITY. 56. A surety is not bound if the contract be illegal. An illegal contract is void, and a surety thereon incurs no liability. 223 If a note be void- for usury, it cannot be enforced against a surety. 224 If, however, the principal cannot plead usury, the surety cannot. 225 A note given, in a composition with creditors, to one credit- or in excess of the amount to which he would be entitled under cattle would be surrendered to Mm by one who had no right to retain them, he was held not liable. Tandy v. Elmore-Cooper Live Stock Co., 113 Mo. App. 409, 87 S. W. 614. But a threat made by a husband to his wife, with the knowledge of the payee of a note, that he would take poison unless she signed as surety, was not duress. Wright v. Remington, 41 N. J. Law (12 Vroom) 48, 32 Am. Rep. 180. Nor is a threat to file objections to a sale of real estate, unless allowed claims against the estate were guarantied. Wiggenhorn v. Fitzgerald, 5 Neb. (Unoff.) 457, 98 N. W. 1079. 222 Fairbanks v. Snow, 145 Mass. 153, 13 N. E. 596, 1 Am. St Rep. 446. Whether duress of the principal will be a defense to the surety, (a see post, § 133. r 22s jack v. Sinsheimer, 125 Cal. 563, 58 Pac. 130; Howard v. Smith, 91 Tex. 8, 38 S. W. 15. See ante, § 52, as to illegal consideration. If bail be taken illegally, the sureties are not bound. State v. Vion, 12 La. Ann. 688. An Indiana statute provided that express com- panies should not transact business without first complying with cer- tain formalities. A company which had not complied with the for- malities was not allowed to recover upon a bond given by one of their agents, as it was considered an illegal contract Daniels v. Barney, 22 Ind. 207. See post, § 133. 224 Gray's Ex'rs v. Brown, 22 Ala. 262; Stockton v. Coleman, 39 Ind. 106 ; Conger v. Babbet 67 Iowa, 13, 24 N. W. 569 ; Huntress v. Patten, 20 Me. (2 App.) 28; Wimer v. Shelton, 7 Mo. 266; Keim v. Avery, 7 Neb. 54; Heidenheimer v. Mayer, 42 N. Y. Super. Ct. 506; 40 Cent. Dig. col. 1648. 22 6 Brownell v. Freese, 35 N. J. L. 285, 10 Am. Rep. 239; Pugh v. Cameron, 11 W. Va. 523. This would be the case where the principal and surety were in different states, and the usury laws were different §§ 57-60) VOLUNTARY BOND — VALIDITY. 73 the composition, and without the knowledge of the other cred- itors, would be against public policy, and therefore void. 228 Sunday Contracts. A contract made on Sunday is valid 221 / unless the common- law rule has been changed by statute. 228 STATUTORY BOND— DEFINITION. 57. A statutory bond is one given pursuant to a statute. SAME— VALIDITY. 58. A bond which complies substantially with a statute is valid, though it does not conform to its requirements. VOLUNTARY BOND— DEFINITION. 59. A voluntary bond is one given when not required by stat- ute. SAME— VALIDITY. 60. A voluntary bond is a binding obligation. In many cases where a bond has been given because one is required by statute, the parties have failed to conform to all of the requirements of the statute ; but such bonds are binding obligations notwithstanding. 228 It will be deemed sufficient, 22« Morrison, Plummer & Co. v. Schlessinger, 10 Ind. App. 665, 38 N. B. 493 ; Bannantine v. Cantwell, 27 Mo. App. 658. 227 Richmond v. Moore, 107 111. 429, 47 Am. Rep. 445. 228 Oarrick v. Morrison, 2 Marv. (Del.) 157, 42 Atl. 447. Where the contract is executed on Sunday, but is not delivered until the fol- lowing day, it is valid, as it takes effect from the delivery. Com- monwealth v. Kendig, 2 Pa. 448. Contra, Parker v. Pitts, 73 Ind. 597, 38 Am. Rep. 155. The contract is not illegal because the nego- tiations took place on Sunday, if the contract was not executed then. Tyler v. Waddingham, 58 Conn. 375, 20 Atl. 335, 8 L R. 1 657. 229 Stephens v. Crawford, 3 Ga. (3 Kelly) 499; People, to Use of City of Mt. Vernon, v. Pace, 57 111. App. 674 ; Sheppard v. Collins, 12 Iowa, 570; McCracken v. Todd, 1 Kan. 148; Cobb v; Curts, 4 Ditt (Ky.) 235; Grocers' Bank, President, Directors, eta, v. Kingman, 82 74 FORMATION OF THE CONTRACT. (Oh. 2 although the form 230 or the language prescribed by the stat- ute is not followed, as the provisions of the statutes are di- rectory merely, and for the benefit of the beneficiaries. Bond Containing More Than the Statutory Requirements. Such a bond will be valid, although it contain more than is required by statute, 231 as that it covers past as well as future delinquencies, and the statute required a bond for future de- linquencies only ; 232 or where the penalty for which the sure- ties became bound is larger than that fixed by statute. 233 The sureties in such case will be liable at least for the amount fixed by statute. 234 Bond Containing Less Than the Statutory Requirements. Sureties will be liable, though the penalty named is less than the law prescribes.* Where the statute requires each surety Mass. 473; People v. Johr, 22 Mich. 461; Boykin v. State, 50 Miss. 375 ; Riggs v. Miller, 34 Neb. 666, 52 N. W. 567 ; Kelly v. MeCormick, 28 N. Y. 318; Skellinger v. Yendes, 12 Wend. (N. Y.) 306; Governor, to Use of Chambers, v. Witherspoon, 10 N. C. 42 ; Wright v. Keyes, 103 Pa. 567. A guardian's bond securing two or more estates is valid, although the proper form would be a separate bond for each. Ordi- nary v. Heishcn, 42 N. J. Law, 15. A surety on a note for a loan of the school fund is liable, although the statute requires such notes to be secured by a mortgage on real estate. Scotten v. State, 51 Ind. 52. See, also, State v. Wiley, 15 Iowa, 155. aso Johnston v. Gwathney, 2 Bibb. (Ky.) 186, 4 Am. Dec. 694; Math- ews v. Lee, 25 Miss. 417; Governor, to Use of Henderson, v. Mat- lock, 9 N. C. 366 ; McCaraher v. Commonwealth, 5 Watts & S. (Pa.) 21, 39 Am. Dec. 506 ; Treasurers v. Stevens, 2 McCord (S. C.) 107. 23i McFadden v. Hewett, 78 Me. 24, 1 Atl. 893. But such bonds will not be valid if extorted from the principal as a condition precedent to his entering upon the duties of his office. Boswell v. Lainhart, 2 La. 397 ; Treasurers of State v. Bates, 2 Bailey (S. C.) 362 ; United States v. Mynderse, 11 Blatchf. 1, Fed. Cas. No. 15,851. 232 Franklin Bank v. Cooper, 36 Me. 179. A bond is valid, although it makes the sureties liable for the acts of the deputies of the princi- pal, as well as for the acts of the principal. Chadwick v. United States (C. C.) 3 Fed. 750. 233 Carver v. Carver, 77 Ind. 498; Henderson v. Matlock, 9 N. C. 366; Hibbs v. Blair, 14 Pa. 413. Contra, Roberts v. State, 34 Kan. 151, 8 Pac. 246 ; Toles v. Adee, 84 N. Y. 222. 234 Graham v. State, 66 Ind. 386 ; State, to Use of Guernsey County Com'rs, v. Findley, 10 Ohio, 51 ; State v. Purcell, 31 W. Va. 44, 5 S. B. 301 ; United States v. Ambrose (C. O.) 2 Fed. 552. * Carver v. Carver, 77 Ind. 498 ; Freeman v. Davis, 7 Mass. 200. § 60) VOLUNTARY BOND VALIDITY. 75 to be liable for the entire penalty, and the bond stipulates that each surety shall be liable for a proportionate part only of the penalty, the obligation is valid. A surety will not be allowed to question the validity of his bond because it was not acknowledged by him. 236 Voluntary Bonds. Bonds for the faithful performance of services by a public officer are given sometimes when such bonds are not required by law, or where they so far deviate from the requirements of a statute that they cannot be deemed to be statutory bonds. Such bonds are called "voluntary bonds," and, unless they con- travene the policy of the law, or are forbidden by statute, are valid as common-law bonds 236 — that is, bonds valid under the rules of the common law — and will have the force of an under- taking to secure a private obligation. Thus, a bond of a sheriff executed to the state, instead of to the county, as required by a statute, would be valid. 237 So, sureties would be liable up- 235 Board of Sup'rs of Washington County v. Dunn, 27 Grat. (Va.) 608. 2 36 Williamson v. Woolf, 37 Ala. 298; Farmers' & Mechanics' Bank of Delaware v. Polk, 1 Del. Ch. 167; Sheppard v. Collins, 12 Iowa, 570 ; Johnson v. Weatherwax, 9 Kan. 75 ; Thompson v. Buckhannon, 2 J. J. Marsh. (ICy.) 416; St. Joseph County, Board of Sup'rs of, v. Coffenbury, 1 Mich. 355 ; State v. Harney, 57 Miss. 863 ; Ordinary v. Heishon, 42 N. J. Law, 15; Bank of Northern Liberties v. Cresson, 12 Serg. & R. (Pa.) 306 ; Wright v. Keyes, 103 Pa. 507 ; Dignan v. Shields, 51 Tex. 322; United Statas v. Bradley, 10 Pet. (U. S.) 361, 9 L. Ed. 448. Contra, Williams v. Skipwith, 34 Ark. 529 ; State v. Heisey, 56 Iowa, 404, 9 N. W. 327. The rule is the same as to judicial bonds, and they will be held good as common-law bonds if not according to statute. Purcell v. Steele, 12 III. 93 ; EndTess v. Ent, 18 Kan. 236 ; Lartigue v. Baldwin, 5 Mart. O. S. (La.) 193 ; Mosher v. Murphy, 121 Mass. 276 ; Morse v. Hodsdon, 5 Mass. 314; United States v. Linn, 15 Pet. (U. S.) 290, 10 L. Ed. 742. 237 Jefferson County, Commissioners of, v. Lineberger, 3 Mont 231, 35 Am. Rep. 462 ; Thomas v. Hinkley, 19 Neb. 324, 27 N. W. 231 ; See, however, United States v. Shoup, 2 Idaho, 493, 21 Pac. 656. A bond given to the state, instead of to the township is valid. State v. Horn, 94 Mo. 162, 7 S. W. 116. So is one given to the county, instead of to the state. Johnson v. Puquay, 1 Dana (Ky.) 514. Or to the wrong 76 FORMATION OF THE CONTRACT. (Ch. 2 on a bond entered into before a person acting as judge, al- though he might be acting without right. 288 FORGED SIGNATURES. 61. A contract of suretyship is valid, although some of the signatures thereto are forged, if the creditor or obligee be innocent. NAMES SIGNED WITHOUT AUTHORITY. 62. A surety is liable, though the principal's name be signed by a person without ' authority. Forged Signatures. Where a person was asked to sign a note as surety, but re- fused unless another would execute it first, and the signature of such other person was forged by the principal without the knowledge of the creditor, whereupon the first person signed, he was held liable. 288 Where one of two innocent parties must lose through the deceit of another, the loss should fall upon him who makes the fraud possible. 240 The signature of a surety is an implied assertion of the genuineness of those county. Gerould v. Wilson, 81 N. Y. 573, affirming 16 Hun (N. T.) 530. 238 Pritchett v. People, 1 GilmaD (111.) 525. 238 STONER v. MILLIKIN, 85 III. 218; Wayne Agricultural Co. v. Gardwell, 73 Ind. 555; Hall v. Smith, 77 Ky. (14 Bush) 604; Chase v. Hathom, 61 Me. 505 ; Dole Bros. Co. v. Cosmopolitan Co., 167 Mass. 481, 46 N. E. 105, 57 Am. St Rep. 477 ; State v. Hewitt, 72 Mo. 603 ; Kansas City Terra-Cotta Lumber Co. v. Murphy, 49 Neb. 674, 68 N. W. 1030 ; Mosher v. Carpenter, 13 Hun (N. Y.) 602 ; Vass v. Riddick, 89 N. C. 6; Bigelow v. Comegys, 5 Ohio St. 256; Loew's Adm'r v. Stacker, 68 Pa. 226 ; Trevathan v. Caldwell, 51 Tenn. (4 Heisk.) 535 ; Veach v. Rice, 131 U. S. 318, 9 Sup. Ct. 730, 33 L. Ed. 163; 40 Cent. Dig. col. 1728. Contra, Sharp v. Allgood, 100 Ala. 183, 14 South". 16; Green v. Kindy, 43 Mich. 279, 5 N. W. 297. See, also, Beem v. Farrell (Iowa) 108 N. W. 1044. Likewise, a guarantor will be bound, although some of the prior names are forged. Veazie v. Willis, 6 Gray (Mass.) 90. 2*0 Donnell Mfg. Co. v. Jones, 49 111. App. 327; Hun v. Nichols, 1 Salk. 289. §§ 63-66) PARTNERS AS AGENTS. 77 which preceded it ; 2 " for it is not to be presumed that a man would affix his name to a bond when the prior names were forged, and it is his neglect if he is ignorant of the genuine- ness of the signatures preceding his own. 2 * 8 Unauthorized Signatures. Where the name of the principal has been signed by an agent, and purports to be so signed, and the principal denies authority of the agent to act for him, the sureties are liable. 243 In such cases the agent would be personally liable, and would be the principal. 2 * 4 AGENCY. 63. A person may enter into a contract of suretyship through an authorized agent. AUTHORITY OF AGENT. 64. The agent must pursue his authority strictly. RATIFICATION. 65. An unauthorized act, purporting to be done by an agent, may be ratified subsequently, and thus become binding upon a surety. RIGHTS OF PARTNERS AS AGENTS OF EACH OTHER. 66. One partner has no implied authority to bind his co- partners, except in the scope of the partnership busi- ness. 2" Eemsen v. Graves, 41 N. T. 471; Penfield v. Goodrich, 10 Hun (N. Y.) 41. An indorser impliedly warrants that the instrument and all prior signatures are genuine. Norton, Bills & Notes (3d Ed.) p. 162. 242 York County M. F. Ins. Co. v. Brooks, 51 Me. 506. 243Millius v. Shafer, 3 Denio (N. T.) 60; Holland v. Clark, 67 N. C. 104 ; Stewart v. Behm, 2 Watts (Pa.) 356 ; Pelzer v. Campbell, 15 S. C. 581, 40 Am. Rep. 705. But in RUSSELL v. ANNABLE, 109 Mass. 72, 12 Am. Rep. 665, where a firm name was signed by one of the part- ners without authority, the bond was held void. 244 WEARS v. SAWYER, 44 N. H. 198. 79 FORMATION OF THE CONTRACT. (Ch. 2 Contracts of suretyship, like contracts in general, may be entered into by a surety through an agent, and the agency may be established in the same manner as any other agency. Gen- erally, the authority need not be in writing. Neither' the cred- itor nor the principal can act as agent for the surety. 2 * 5 Scope of Authority. An agent may have express authority, or it may be implied in some cases ; but, "in any event, he must keep strictly within the scope of his authority. 246 Authority may be implied from previous course of dealing. Where the signature of a surety is followed by descriptive words, such as "cashier," the obliga- tion will be binding upon him personally, unless he shows that he had authority to bind a person for whom he was acting. 247 Ratification. The general rules of agency in regard to ratification apply in contracts of suretyship. 248 Ratification may be inferred from acts ; 249 but the burden is upon the creditor to prove ratification. Partners as Agents of the Firm. The power of a partner to bind his copartners is very sim- ilar to that of an officer of a corporation to bind the corpora- tion. The act must be done in the course of the firm busi- es Robinson v. Garth, 6 Ala. 204, 41 Am. Dec. 47; Ennis v. Waller, 3 Blackf. (Ind.) 472 ; Bent v. Cobb, 9 Gray (Mass.) 397, 69 Am. Dec. 295 : Brent v. Green, 6 Leigh (Va.) 16. The principal can act as agent of the surety for the purpose of delivery. See ante, note 53. And for the purpose of filling blanks. See ante, note 75. 2*8 Bryan v. Berry, 6 Cal. 394; Farmingtan Savings Bank v. Buz- zell, 61 N. H. 612 ; Stovall v. Commonwealth, 84 Va. 246, 4 S. B. 379. 2*7 Gardiner v. Cooper, 9 Kan. App. 587, 58 Pac. 230, 60 Pac. 540. 2*8 State v. Hill, 50 Ark. 458, 8 S. W. 401 ; Smyth v. Lynch, 7 Colo. App. 383, 43 Pac. 670; Colquitt v. Smith, 76 Ga. 709; Hefner v. Vando- lah, 62 111. 483, 14 Am. Rep. 106 ; Hall v. State, 39 Ind. 301 ; Crawford v. Stirling, 4 Esp. 207. See Tiffany, Agency, p. 46. 2*» Lynch v. Smyth, 25 Colo. 103, 54 Pac. 634; Sweetser v. French, 2 Oush. (Mass.) 309, 48 Am. Dec. 666 ; Kidder v. Page, 48 N. H. 380 ; Cockroft v. Claflin, 64 Barb. (N. T.) 464 ; Drakeley v. Gregg, 8 Wall. (U. S.) 242, 19 L. Ed. 409. Where the name of a surety has been forg- ed, and he takes no steps after being informed by the principal, he may become liable. State ex rel. McCarty v. Pepper, 31 Ind. 76 ; State ex rel. Brown v. Baker, 64 Mo., 167, 27 Am. Rep. 214. § 66) PARTNERS AS AGENTS. 79 ness; 250 a partner having no right to lend the credit of the firm, to a stranger as a matter of accommodation merely. 261 One partner, in assigning a note which is the property of the firm, would have the right, if necessary, to guaranty its pay- ment in the firm name without express authority from the other partners. So, where a firm sold a steamboat, and the buyer gave a note for the purchase price to a creditor of the firm in payment of the firm's indebtedness to such creditor, and one partner signed the firm name as sureties to the note, all of the partners would be bound, as such contract of surety- ship was in substance an agreement to pay their own debt. 252 A partner who has authority to borrow money for the firm can bind the firm by a guaranty of his own note given for the money borrowed for the firm, although he may have been in- structed not to sign the firm name to guaranties. 263 A note given by a partner for his individual debt, and guar- antied by him in the firm's name, could not be enforced by the payee against the firm, in the absence of previous special authority from the other partners, or subsequent ratification by them, for the payee would know that the note was not given for the firm's business ; but the same result could be accom- plished indirectly, by the partner signing the firm name to a note payable to himself, and then indorsing the note for his own debt, for the holder would become then one for value without notice, and the defense of want of consideration could not be made by the partners, unless the business was one which did not authorize a partner to incur indebtedness on account of the firm. 264 2 bo George, Partnership, p. 213. 25i Rolston v. Chick, 1 Stew. (Ala.) 526 ; Mayberry v. Bainton, 2 Har. (Del.) 24 ; Davis v. Blackwell, 5 111. App. 32 ; Sweetser v. French, 2 Cush. (Mass.) 309, 48 Am. Dec. 666 ; Osborne v. Thompson, 35 Minn. 229, 28 N. W. 260. Laverty v. Burr, 1 Wend. (N. Y.) 529 ; McQuewans v. Hamlin, 35 Pa. 517 ; Avery v. Rowell, 59 Wis. 82, 17 N. W. 875. The other members of the firm would be liable to a purchaser for value without notice, and could not claim to be sureties. First National Bank of Chittenango v. Morgan, 73 N. Y. 593. 252 Langan v. Hewett, 3 Smedes & M. (Miss.) 122. 253 pahlman v. Taylor, 75 111. 629; First Nat. Bank of Dubuque v. Carpenter, 41 Iowa, 518. 2 54 Norton, Bills & Notes (3d Ed.) p. 183. 80 FORMATION OF THE CONTRACT. (Ch. 2 Where a partner affixes the firm name to a contract of sure- tyship without authority, he will be bound, whether the others are or not. 8 " CONFLICT OF LAWS. 67. The validity of a contract is determined, aa a rule, by the law of the place where it is made; but, if it is to be performed in some other place, its validity is deter- mined by the law of the latter place. The general rule of contracts is that a contract which is val- id where it is to be performed is valid everywhere, 266 unless made for the purpose of evasion. 2 " Thus, a note signed by a married woman as surety in a state where she has the power to enter into such contracts will be enforced against her in another state, although such contract would have been invalid if made in the latter state. 258 However, the courts will not enforce a note, although valid in the state where made, if such note is made invalid in the state where it is sought to be en- forced on grounds of public policy, as a note given for a gambling debt. A promissory note made by a wife as surety for her hus- band, which is void where made, could be enforced against her land in another state, where she intended to charge it with her debt. 269 2 6 5 Whitaker v. Richards, 134 Pa. 191, 19 Atl. 501, 7 L. R. A. 749, 19 Am. St Rep. 684 ; Avery v. Rowell, 59 Wis. 82, 17 N. W. 875. sse Clark, Contracts (2d Ed.) p. 342. In the following cases the con- tract was enforced, because valid in the place where made : Long v. Templeman, 24 La. Ann. 564 ; Howard v. Fletcher, 59 N. H. 151 ; Rus- sell v. Buck, 14 Vt. 147. In the following cases the contract was en- forced, because valid in the state where it was to be performed: Cowles v. Townsend, 37 Ala. 77 ; Cross v. Petree, 10 B. Mon. (Ky.) 413 ; Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241 ; Frierson v. Wil- liams, 57 Miss. 451. Where an agreement to guaranty is made in one state, where valid, it will be enforced, although actually affixed in a state where the contract would be void. Richter v. Frank (C. C.) 41 Fed. 859. As a guaranty is made where accepted, the law of that place controls as to its validity. Irving Nat. Bank v. Ellis (N. J. Sup.) 64 Atl. 1071. as? Parham v. Pulliam, 45 Tenn. (5 Cold.) 497. 2 68 Garrigue v. Keller, 164 Ind. 676, 74 N. E. 523, 69 L. R. A. 870. fi6 9 Frierson v. Williams, 57 Miss. 451. § 68) CHANGE OF RELATION. 81 CHANGE OP RELATION. 68. The principal and surety, by subsequent dealings, can change their respective relations. It sometimes happens that the parties to a contract, by sub- sequent dealings, change their respective relations to each other, so that a surety may become a principal, a principal may become a surety, or they may occupy a dual relation ; and the creditor, when he has knowledge of the change, should re- spect the new relation. 260 A simple illustration of this would be a promissory note signed by A. and B. jointly, but the money for which the note was given being paid by the creditor to A. In this case A. would be the principal, and B. the sure- ty. 261 Suppose, before the note becomes due, A. should desire to repay the note, but the creditor refuses to receive payment. B., the surety, desiring the use of the money, A. pays it to B. ; the latter agreeing to pay the note at maturity and relieve A. from all liability. B. then would become the principal, and A. the surety. 262 If B. were to receive from A. one-half only of the money, each would occupy the position of a principal for one half of the amount due, and surety for the other half. 263 If there were three joint makers of a note, it can be seen read- ily that the relation might be changed from surety to co-sure- ty. So, a surety may become a supplemental surety. 264 Sup- pose the grantee of land assumes, as a part of the purchase price, a mortgage upon the land. As explained in a previous 2«o see post, § 103. *«i See ante, § 12. sea Coggeshall v. Ruggles, 62 111. 401 ; Chaplin v. Baker, 124 Ind. 385, 24 N. E. 233; Smith v. Steele, 25 Vt. 427, 60 Am. Dec. 376; Rhea v. Preston, 75 Va. 757. Vary v. Norton (C. C.) 6 Fed. 808. The same result would follow where the surety purchases goods from the prin- cipal and assumes the debt as the price. Williams v. Shelly, 37 N. Y. 375. 263 One jointly liable with another might assume the entire in- debtedness, and become a principal; the other becoming a surety. Crafts v. Mott, 4 N. Y. (4 Comst.) 604. 2 64 where an indorsed note cannot be enforced against the maker, owing to failure of consideration, and the holder transfers it, the original creditor becomes the principal. HAYS v. WARD, 4 Johns. Ch. (N. Y.) 123, 8 Am. Dec. 554. Chjxds' Sueettship— 6 82 FORMATION OF THE CONTRACT. (Ch. 2 section, 266 the grantee becomes the principal as to the indebt- edness, and the grantor (mortgagor) a surety. 288 Suppose a further, sale of the land be made ; the second grantee likewise assuming the indebtedness. In this event the last grantee be- comes the principal, the second grantor (first grantee) his sure- ty, while the original grantor (mortgagor) becomes a surety for a surety, or a supplemental surety, liable for the default of the two grantees. 287 The parties, by any arrangement among themselves, cannot affect the existing rights of the creditor; 268 but he must be careful, in further dealing with the parties, lest he forfeit some of his rights. Test of Primary and Secondary Liability. After negotiations between persons have resulted in one or more of them occupying the position of sureties, or in changing previously existing relations, it is sometimes a little puzzling, at first glance, to decide which is the principal and which the surety. The test is, who is primarily liable? who is expected to discharge the obligation ? and who, by discharging the obligation, frees the other from all liability without himself having the right to call on the others for reimbursement? If a person, in event of being compelled to discharge an obliga- tion, has the right to call on some one else to indemnify him for his outlay — some one who should have discharged the ob- ligation in the first instance — such person is a surety, and the latter, the person who can be required to indemnify, is the principal. 268 2«5 Ante, | 20. ace Miller v. Thompson, 34 Mich. 10. In some states the mortgagee can bring an action against the grantee to recover the mortgage debt, without any attempt to foreclose the mortgage or resorting to the mortgagor. Lamb v. Tucker, 42 Iowa, 118 ; Schlatre v. Greaud, 19 La. Ann. 125; Thorp v. Keokuk Coal Co., 48 N. Y. 253; Burr v. Beers, 24 N. Y. 178, 80 Am. Dec. 327. So, where a firm assumes the debt of a partner, the creditor can maintain an action against the firm. Ar- nold v. Nichols, 64 N. Y. 117. 267 gee Stover v. Tompkins, 34 Neb. 465 ? 51 N. W. 1040. 26 8 Hall v. Long, 56 Ala. 493; Conwell v. McCowan, 81 111. 285; Gillen v. Peters, 39 Kan. 489, 18 Pac. 613 ; Skinner v. Hill, 32 Mo. App. 409; Whittier v. Gould, 8 Watts (Pa.) 485; Shapleigh Hardware Co. v. Wells, 90 Tex. 110, 37 S. W. 411, 59 Am. St. Rep. 783 ; Buchanan v. Clark, 10 Grat. (Va.) 164 ; Shepherd v. May, 115 U. S. 505, 6 Sup. Ct, 119, 29 L. Ed. 456. 26 See ante, § 1. §§ 69-72) THE STATUTE OF FRAUDS. 83 CHAPTER III. THE STATUTE OF FRAUDS. 69-72. Writing Required. 73. Construction of Statute. 74. Oral Contracts Not Void. 75. Implied Promise of Principal Within Statute. 76-86. Promises Not Within Statute. 87-88. The Memorandum. 89. Conflict of Laws. 90. Pleading the Statute. GENERAL REQUIREMENT OP WRITING. 69. Under the statute of frauds, a contract of suretyship must be evidenced by writing to be enforceable. EFFECT OF WRITING DETERMINES NECESSITY OF WRITING. 70. The statute applies to contracts which are in substance to pay the debt of another, though not so in form. PROMISES PARTLY WITHIN STATUTE. 71. Where a promise is partly within and partly not within the statute, the part not within will be enforced if the contract be divisible. STATUTE DOES NOT DISPENSE WITH CONSIDERATION. 72. A consideration is not sufficient to take a promise out of the statute. At common law an oral contract of suretyship, like most other contracts, could be enforced against the party making it ; but this led to the temptation, on the part of a creditor having a bad debt, to swear that some responsible third person had 84 THE STATUTE OF FRAUDS. (Ch. 3 promised to become a surety for that debt, and thus a dis^ honest creditor could collect his debt from an innocent third party who was in no wise concerned in the transaction. 1 This led to great abuses; and with a view to correcting the evil, and the "prevention of many fraudulent practices which are commonly endeavored to be upheld by perjury and suborna- tion of perjury," the English Parliament passed a statute (St. 29 Car. II, c. 3), commonly known as the "Statute of Frauds," which went into effect June 24, 1677. That part of the statute which concerns our subject is found in the fourth section, and reads as follows: "Noe Action shall be brought * * * whereby to charge the Defendant upon any speciall promise to answere for the debt default or miscarriages of another person * * * unlesse the Agreement upon which such Ac- tion shall be brought or some Memorandum or Note thereof shall be in Writeing and signed by the partie to be charged therewith or some other person thereunto by him lawfully authorized." This statute has been re-enacted in substance in most of the United States, and contracts of suretyship must be evidenced by writing. 2 i "The reason of the statute is obvious; for in the one case, If there be any conflict between the parties as to the exact terms of the promise, the courts can see that justice is done by charging against the promisor the reasonable value of that in respect to which the promise was made, while in the other case, and when a third party is the real debtor, and the party alone receiving benefit, it is impossible to solve the conflict of memory or testimony in any man- ner certain to accomplish justice. There is also a temptation for a promisee, in a case where the real debtor has proved insolvent or un- able to pay, to enlarge the scope of the promise, or to torture mere words of encouragement and confidence into an absolute promise; and it is so obviously just that a promisor receiving no benefit should be bound by the exact terms of his promise that this statute requir- ing a memorandum in writing was enacted." Brewer, J., in DAVIS v. PATRICK, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826. 2Bullard v. Johns, 50 Ala. 382; Wulff v. Lindsay (Ariz.) 71 Pac. 963; Harris v. Frank, 81 Cal. 280, 22 Pac. 856; Benson v. Walker, 5 Har. (Del.) 110; Johnson v. Morris, 21 Ga. 238; Denton v. Jack- son, 106 111. 433; Catlett v. Sweetser, 62 Ind. 365, 30 Am. Rep. 197; Beerkle v. Edwards, 55 Iowa, 750, 8 N. W. 341; Smith v. Fah, 15 B. Mon. (Ky.) 443; Hogan v. Mississippi Valley Bank, 28 Da. Ann. 550; White v. Solomonsky, 30 Md. 5S5; MANLEY v. GEAGAN, 105 Mass. 445 ; Goodman v. Felcher, 116 Mich. 348, 74 N. W. 511 ; Lorn- § 72) CONSIDERATION. 85 A contract is said to be "within the statute" when it is one of those required by the statute to be evidenced in writing. Substance of Contract Governs Requirement as to Writing. In construing the statute of frauds, the courts are governed, not so much by the form of the contract, as by its substance. 8 For this reason an agreement to become a surety on a note,* or on a bond," is as much within the statute as a contract of suretyship already made; but, where the promise is to pro- cure some one else to sign a guaranty, the promise is not with- in the statute, the promise being that the creditor should have, not the promisor's, but a third person's, guaranty. 6 So, where a debtor of a person about to be sued by another promised that he would not pay without giving notice to the one about to bring suit, in order that the latter might have opportunity to bard ▼. Martin, 39 Miss. 147; Nunn v. Carroll, 83 Mo. App. 135 Walker v. Richards, 39 N. H. 259; Dilts v. Parke, 4 N. J. Law, 219 Higley v. Bergholz, 44 App. Div. 638, 60 N. T. Supp. 625 ; Russell v, Fenner, 21 Ohio Oir. Ct. R. 527, 11 O. C. D. 754; Hearing v. Ditt man, 8 Phila. (Pa.) 307; Willoughby v. Florence, 51 S. O. 462, 29 S. E 242; Flannery v. Chidgey, 33 Tex. Civ. App. 638, 77 S. W. 1034 Steele v. Towne, 28 Vt. (2 Wins.) 771; First Nat. Bank v. Gaddis, 31 Wash. 596, 72 Pac. 460; HOOKER v. RUSSELL, 67 Wis. 257, 30 N. W. 358. See 23 Cent. Dig. col. 1851. Written evidence is required, although the defendant admits in his pleadings, the making of the promise. Burt v. Wilson, 28 Cal. 632, 87 Am. Dec. 142; Hollingshead v. McKenzie, 8 Ga. 457; Taylor v. Allen, 40 Minn. 433, 42 N. W. 292 ; Thomas v. Churchill, 48 Neb. 266, 67 N. W. 182 ; Ashmore v. Evans, 11 N. J. Eq. 151 ; Holler v. Richards, 102 N. C. 545, 9 S. E. 460. See Stearns, Law of Surety- ship, p. 53, note 74 ; and post, note 126. s Scott v. Thomas, 2 111. 58; Stewart v. Campbell, 58 Me. 439, 4 Am. Rep. 296; Ames v. Foster, 106 Mass. 400, 8 Am. Rep. 343; Waldo v. Simonson, 18 Mich. 345; Duffy v. Wunsch, 42 N. T. 243, 1 Am. Rep. 514; Hearing v. Dittman, 8 Phila. (Pa.) 307. * Maker of note: Dee v. Downs, 57 Iowa, 589, 11 N. W. 2; Wilson v. Roberts, 5 Bosw. (N. Y.) 100. Acceptor: Chapline v. Atkinson, 45 Ark. 67, 55 Am. Rep. 531; Williams v. Caldwell, 4 S. C. 100. In- dorsee Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355; Wills v. Shinn, 42 N. J. Law, 138; Carville v. Crane, 5 Hill (N. T.) 483, 40 Am. Dec. 364; Taylor v. Drake, 4 Strob. (S. C) 431, 53 Am. Dec. 680. Guarantor: MALLETT v. BATEMAN, L. R. 1 C. P. 163. b Hayes v. Burkam, 51 Ind. 130. « BUSHNELL v. BEAVAN, 1 Bing. (N. C.) 103, 4 Moore & S. 622. 86 THE STATUTE OP FRAUDS. (Ch. 3 attach the debt, the promise is not within the statute. 7 An agreement by the creditor that the principal will give the sure- ty a chattel mortgage is not within the statute. 8 Promises Partly Within Statute. Where a promise is partly within and partly not within the statute, no part of it can be enforced if the contract be entire ; * but if the contract be divisible, and a portion of it, not within the statute, can be separated from that which is, the part not within the statute will be enforced. 10 Consideration Not Waived by Statute. There seems to be an impression among some that an oral contract can be enforced if there be a consideration, and that a contract evidenced in writing is enforceable, under the stat- ute of frauds, although without consideration; but the statute of frauds is entirely independent of all other essential elements of a contract. 11 It is one of the elementary rules of law that every .contract must be supported by a consideration, 12 else it is void; and a writing does not mend the matter, unless it be a sealed instrument. 13 On the other hand, an oral promise t TOWNB v. GROVER, 9 Pick. (Mass.) 306. s Resseter v. Waterman, 151 111. 169, 37 N. B. 875, reversing Water- man v. Resseter, 45 111. App. 155. » McMullen v. Riley, 6 Gray (Mass.) 500 ; Thayer v. Rock, 13 Wend. (N. Y.) 53; Dyer v. Graves, 37 Vt. 369. io Rand v. Mather, 11 Cush. (Mass.) 1, 59 Am. Dec. 131. ii "There can be no question under the statute of frauds in any case, until it is ascertained that there is a consideration to sustain' the promise. Without that element, the agreement is void before we come to the statute. A naked promise is void on general principles of law, although it be in writing." Comstock, C. J., in MALLORY v. GILLETT, 21 N. Y. 412. The statute adds to the essentials of the contract, but does not take away any. 12 See ante, e. II, note 124. is Eddy v. Roberts, 17 111. 505; Floyd v. Harrison, 4 Bibb (Ky.) 76; Richardson v. Robbins, 124 Mass. 105; DEXTER v. BLANCH- ARD, 11 Allen (Mass.) 365; Corkins v. Collins, 16 Mich. 47S; Cowen- hoven v. Howell, 36 N. J.. Law, 323; PRIME v. KOEHLER, 77 N. Y. 91; Kelsey v. Hibbs, 13 Ohio St. 340; Bunneman v. Wagner. 16 Or. 433, 18 Pac. 841, 8 Am. St. Rep. 306; Maule v. Bucknell, 50 Pa. 39; Cross v. Richardson, 30 Vt. 647; Noyes' Ex'x v. Humphreys, 11 Grat. (Va.) 636; Bray v. Parcher, 80 Wis. 16, 49 N. W. Ill, 27 Am. St Rep. 17. §§ 73-74) ORAL CONTRACTS NOT VOID. 87 to pay the debt of another cannot be enforced, although the surety actually has been paid to assume the liability, and or- ally admits that he entered into the contract. The statute is clear that the liability of the surety cannot be enforced unless the plaintiff can offer some evidence in writing. If the surety actually has received a benefit, it is his duty to make compen- sation if he refuse to perform his oral contract. CONSTRUCTION OP STATUTE. 73. The statute of frauds is construed strictly. ORAL CONTRACTS NOT VOID. 74. Contracts within the statute of frauds are not invalid, but unenforceable merely. Construction of Statute. The statute of frauds, being in derogation of the common law, receives a strict construction by the courts. The object of the statute was to prevent fraud, and the courts will not allow to it such a construction as will enable one to perpetrate a fraud. If the statute has been satisfied once by a writing, a new oral promise will be sufficient to take the case out of the statute of limitations. 14 Where a person, in his character of attorney, enters into a contract which is not evidenced as required by the statute, the court may require him, as an officer of the court, to per- form his contract. He is conusant of the law, and will not be allowed to take advantage of his own wrong. 16 Oral Contracts Not Invalid. It will be noticed, from the wording of the statute, that oral contracts of suretyship are not illegal nor void, but un- enforceable only. This results from the expression, "No action shall be brought." The contract is perfectly valid, but the i* Gibbons v. McCasland, 1 Barn. & Aid. 690. This has been changed by statute in some states, requiring the new promise to be* in writing. 16 in Re Greaves, 1 Cromp. & J. 374, note. ; 88 THE STATUTE OF FKATJDS. (Ch. 3 statute takes away the remedy thereon; for the plaintiff is not allowed to offer oral evidence of the contract when he seeks to enforce it in court, the result being that, upon failure of evidence to support his action, the action fails. While, in most cases, this distinction between being void and unenforceable is of little consequence, it is material in some; as a surety may waive his defense if he choose, 16 and hold his principal for the amount he has been compelled to pay. 17 This he could not do if the contract were void. 18 So a surety, who has paid the debt under 'the impression that it was enforceable against him, cannot recover from the creditor the amount paid, as he might do in the case of a void contract. Again, an oral contract of suretyship, not being invalid, may be made the foundation of another contract. Thus a person who has entered into an oral contract of suretyship may stipu- late with the creditor for his release by agreeing to perform some other act. The release by the creditor is a sufficient con- sideration for whatever new contract the surety has made, and he cannot refuse to perform the new contract, claiming want of consideration, although he could have pleaded the statute, had he been sued upon the original contract. IMPLIED PROMISE OF PRINCIPAL. 75. A promise to answer for liability arising out of a tort, or for an implied promise of the principal, is within the statute. The words "debt, default, or miscarriages" are very com- prehensive, and include liability arising out of a tort which has been committed, as well as liability arising from a breach of contract. 18 Without determining the exact meaning to be giv- en to each of the three words mentioned in the statute, the three together include every case in which a person can be made liable for another in a civil suit. Thus, an oral promise i<> See post, § 90. it gee post, § 154. is Godden v. Pierson, 42 Ala. 370; Ames v. Jackson, 115 Mass. 512; Lee v. Stowe, 57 Tex. 444. io Turner v. Hubbell, 2 Day (Conn.) 257, 2 Am. Dee. 115. §§ 76-77) PKOMISES OF INDEMNITY. 89 to pay for the damage caused by riding a horse without license, and causing his death, is not enforceable. 20 While the liability of a surety' must arise always from an ex- press promise, a person may become surety for a liability of the principal which has arisen by implication. 21 Such is the case where the principal is liable in tort. So a promise that a bailee would redeliver the property is within the statute, as the bailee personally would be liable upon his implied promise to redeliver. 22 INVOLUNTARY SURETYSHIP NOT WITHIN STATUTE. 76. The statute of frauds does not apply where the relation of suretyship arises by operation of law. It would seem, to a person reading the statute for the first time, -that the language was perfectly plain, and that there would be little difficulty in construing it; but it has been a very prolific source of litigation. Generally, the statute applies to collateral and not to original promises; and, while there are no exceptions to the statute, the difficulty is to determine which are collateral promises, and which are not — whether the defendant is liable only in case of the default of a third person, or whether he is the principal and primarily liable for his own obligation. 28 It is clear that a surety who becomes such involuntarily is not within the statute, on account of the words "any special promise." PROMISES OF INDEMNITY. 77. In most, but not in all, jurisdictions a promise of indem- nity is not within the statute. In a few jurisdictions it is not within the statute if the promise be made by one co-surety to another; other-wise, it is. 20 KIRKHAM v. MARTER, 2 Barn. & Aid. 613. 2i May v. Williams, 61 Miss. 125, 48 Am. Rep. 80; Whitcomb v. Kephart, 50 Pa. 85. 22 BTJCKMYR v. DARNALX,, 2 Ld. Raym. 1085, 5 Mod. 248, Salk. 27, 3 Salk. 15, Holt, 606. 23 Booth v. Eighmie, 60 N. Y. 238, 19 Am. Rep. 171. 90 THE STATUTE OF FRAUDS. (Ch. 3 There is great conflict of authority whether a promise to indemnify one against loss if he will become surety for another is within the statute or not. 24 Thus, if A. promise B. that, if the latter will become surety for a debt owing by C. to D., A. will reimburse B. for any amount he may be compelled to pay by reason of such suretyship, must A.'s promise be evidenced in writing to be enforceable? Is it a collateral promise to pay another's debt? A large majority of the courts, including Massachusetts 2B and New York, 26 hold that such promise need not be evidenced in writing ; " that the promise is made to the debtor to pay a prospective debt, which the latter may nev- 2* Stearns, Law of Suretyship, p. 37. 25 Phelps v. Stone, 172 Mass. 355, 52 N. E. 517; Aldrieh v. Ames, 9 Gray (Mass.) 76 ; Alger v. Scoville, 1 Gray (Mass.) 391. as JONES v. BACON, 145 N. T. 446, 40 N. B. 216; HARRISON v. SAWTEL, 10 Johns. (N. Y.) 242, 6 Am. Dec. 337; Ohapin v. Merrill, 4 Wend. (N. T.) 657. 27 Jones v. Shorter, 1 Ga. (1 Kelley) 294, 44 Am. Dec. 649; Resseter v. Waterman, 151 111, 169, 37 N. E. 875,. reversing Waterman v. Res- seter, 45 111. App. 155; Keesling v. Frazier, 119 Ind. 185, 21 N. E. 552; Mills v. Brown, 11 Iowa, 314; Patton v. Mills, 21 Kan. 163; George v. Hoskins (Ky.) 30 S. W. 406; Hoggatt v. Thomas, 35 La. Ann. 293; Aldrieh v. Ames, 9 Gray (Mass.) 76; Byers v. McClanahan, 6 Gill & J. (Md.) 250 ; Fidelity & Casualty Co. of New York v. Lawler, 64 Minn. 144, 66 N. W. 143; Minick v. Huff, 41 Neb. 516, 59 N. W. 795; Demeritt v. Bickford, 58 N. H. 523; Rose v. Wollenberg, 31 Or. 269, 44 Pac. 382, 39 L. R. A. 378, 65 Am. St. Rep. 826; Adams v. Flanagan, 36 Vt. 400; Vogel v. Melms, 31 Wis. 306, 11 Am. Rep. 608; Emerson v. Slater, 22 How. (U. S.) 28, 16 L. Ed. 360; WILDES v. DUDLOW, L. R. 19 Eq. 198, criticising GREEN v. CRESWELL, 10 Adol. & E. 453, and approving THOMAS v. COOK, 8 Barn. & C. 728. An oral promise to indemnify a surety on a bail bond would be enforceable, as in that case there would be no implied indemnity from the principal. See post, § 159 (e); Anderson v. Spence, 72 Ind. 315, 37 Am. Rep. 1G2. Where the promise to indemnify is not collateral to any implied liability on the part of the principal, there is no ques- tion that it is not within the statute. Thus, if A. orally promise to indemnify B. if the latter will incur indebtedness to C, the promise is enforceable. Lerch v. Gallup, 67 Cal. 595, 8 Pac. 322; Marcy v. Crawford, 16 Conn. 549, 41 Am. Dec. 158; Green v. Brookins, 23 Mich. 48, 9 Am. Rep. 74; Mallory v. Gillett, 21 N. T. 412; Carville v. Crane, 5 Hill (N. Y.) 433, 40 Am. Dec. 364; Mays v. Joseph, 34 Ohio St. 22 ; Hull v. Brown, 35 Wis. 652. A promise to indemnify a party against loss if he will commence or defend a suit is not within the statute. Bullock v. Lloyd, 2 Car. & P. 119. An oral promise that, if § 78) DEL CREDERE AGENCIES. 91 er be required to pay, and is not made to the creditor. 28 Oth- er courts regard the liability of the principal to reimburse his surety as the primary' obligation, 28 and the promise of in- demnity by a third party as collateral thereto, and hence with- in the statute. 80 A few of the latter courts except from this rule promises of indemnity made by one co-surety to anoth- er, 31 holding that they are not within the statute, as each co- surety is liable for the full amount of the debt, 32 and his prom- ise to indemnify his co-surety amounts to a promise to pay his own debt. In contracts of indemnity, it is not the use of the word "in- demnity" which determines whether the contract is or is not within the statute. A promise to indemnify a person if he will sell goods to another is equivalent to a promise to guaranty payment, and must be in writing to be enforceable. DEI, CREDERE AGENCIES- 78. The contract of a del credere agent is not within the stat- ute. A del credere agent is one who, in consideration of an in- crease of commission, engages absolutely to pay his principal another will sign a note, the promisor will pay it, is enforceable. Godden v. Pierson, 42 Ala. 370. as See post, § 82. 2» See post, § 153. so May v. Williams, 61 Miss. 125, 48 Am. Rep. 80; Hurt v. Ford, 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 823 ; Apgar's Adm'rs v. Hiler, 24 N. J. Law, 812; Draughan v. Bunting, 31 N. C. (9 Ired.) 10; Easter v. White, 12 Ohio St. 219; Nugent v. Wolfe, 111 Pa. 471, 4 Atl. 15, 56 Am. Rep. 291 ; Simpson v. Nance, 1 Speers (S. C.) 4 ; Macey v. Chil- dress, 2 Tenn. Ch. 438. si HARTLEY v. SANFORD, 66 N. J. Law, 627, 50 Atl. 454, 55 L. R. A. 206; Ferrell v. Maxwell, 28 Ohio St. 383, 22 Am. Rep. 393; Mick- ley v. Stocksleger, 10 Pa. Co. Ct. R. 345. An oral agreement among co-sureties, affecting their rights and liabilities as to contribution, is not covered by the statute. Baldwin v. Fleming, 90 Ind. 177; Mans- field v. Edwards, 136 Mass. 15, 49 Am. Rep. 1 ; Barry v. Ransom, 12 N. Y. 462; Ferrell v. Maxwell, 28 Ohio St. 383, 22 Am. Rep. 393; Guild v. Conrad, L. R. 2 Q. B. D. 885. See post, § 163. 32 See post, § 95. 92 THE STATUTE OP FRAUDS. (Ch. 3 the .price of the goods which he sells for him. 33 His contract is not within the statute of frauds, 8 * being primarily a contract of insurance; and an oral contract of insurance is enforce- able. 86 He insures the solvency and punctuality of those to whom he will sell on credit. His contract is made in further- ance of his own interests; and, although he becomes respon- sible for any goods sold on credit, he becomes so incidentally, it not being the chief object of his contract. His contract is not made with reference to any particular debtors, nor any par- ticular indebtedness. FRAUDULENT ASSERTIONS AS TO CREDIT. 79. False and deceitful representations as to the financial standing and responsibility of third persons are not within the statute. A person who is guilty of deceitful representations as to the financial responsibility of a third person cannot take refuge behind the statute of frauds when he is sought to be held lia- ble for his deceit. 36 This cannot be said to be a "special prom- ise." Where a person fraudulently asserted that another was a person to be safely trusted and given credit, he was held sa National Cordage Co. v. Sims, 44 Neb. 148, 62 N. W. 514. s* Swan v. Nesmith, 7 Pick. (Mass.) 220, 19 Am. Dec. 282; D. M. Os- borne & Co. v. Baker, 34 Minn. 307, 25 N. W. 606, 57 Am. Rep. 55 ; Suman v. Inman, 6 Mo. App. 384; Bullowa v. Orgo, 57 N. J. Eq. 428, 41 Atl. 494; WOLFF v. KOPPEL, 5 Hill (N. Y.) 458; Sherwood v. Stone, 14 N. Y. 267; Guggenheim v. Rosenfeld, 68 Tenn. (9 Baxt.) 533; Bradley v. Richardson, 23 Vt. 720, Fed. Cas. No. 1,786; Thompson v. Perkins, 3 Mason (U. S.) 232, Fed. Cas. No. 13,972; Couturier v. Hastie, 8 Exch. 40. For a similar reason a promise by a person to pay one-half of the losses sustained by reason of clients introduced by him to a firm is not within the statute. SUTTON v. GREY, 69 Law T. 354, affirmed [1894] 1 Q. B. 285. so Croft v. Insurance Co., 40 W. Va...508, 21 S. E. 854, 52 Am. St. Rep. 902; Franklin Fire Ins. Co. v. Colt, 20 Wall. (U. S.) 560, 22 L. Ed. 423. as Hart v. Tallmadge, 2 Day (Conn.) 3S1, 2 Am. Dec. 105; Warren v. Barker, 2 Duv. (Ky.) 155; Patten v. Gurney, 17 Mass. 182, 9 Am. Dec. 141 ; Allen v. Addlington, 7 Wend. (N. Y.) 9 ; Ewins v. Calhoun, 7 Vt. 79 ; Russell v. Clark, 7 Cranch (U. S.) 69, 3 L. Ed. 271. §§ 80-81) VOIDABLE CONTRACTS OF PRINCIPAL. 93 liable upon his assertion, although oral, 87 and although accom- panied by a willingness to guaranty. 88 In such cases the plain- tiff does not consider him as a debtor, and is not seeking to hold him upon a debt which he promised to pay, but for dam- ages arising from the deceit practiced directly by him. NO PRINCIPAL. 80. The statute does not apply where there is no one who can he held liable as principal. This may arise — (a) Where there was originally no liability on the part of the person for whom the promise was made. (b) Where the promise results in the extinguishment of the debt against the person originally liable. VOIDABLE CONTRACTS OF PRINCIPAL. 81. In some, but not in all, states the statute applies, al- though the principal may not be liable on account of his contract being voidable. The words "of another," in the statute, indicate that it is intended to apply to cases where there is an actual primary liability of the principal to the promisee — that a promise, to be within the statute, must be collateral to another promise. Where there is no liability on the part of any one at the time the promise is made, or no action will li«£against the party un- dertaken for, it is clear that the promise is original, and not collateral. 89 Thus, where there was an oral promise to pay f Upton y. Vail, 6 Johns. (N. Y.) 181, 5 Am. Pec. 210. 8 8 Hamar v. Alexander, 5 Bos. & P. 241. 8» Downey v. Hinchman, 25 Ind. 453; Smith v. Mayo, 1 Allen (Mass.) 160 ; Tighe v. Morrison, 116 N. T. 263, 22 N. E. 164, 5 L. R. A. 617. The fact that the person for whom the services were rendered has been determined judicially not to be legally liable will not be sufficient to show that a promise to pay therefor was original, if the promisor was not a party to the suit. HOOKER v. RUSSELL, 67 Wis. 257, 30 N. W. 358. Where a person was sued for assault and battery, and an oral promise was made to pay if the suit were with- drawn, which was done, it was held that the promise was original. The defendant was not a debtor at the time the promise was made. There might have been a verdict in his favor. The promisor wanted 94 THE STATUTE OP FRAUDS. (Ch. 3 for goods furnished gratuitously to another, it can be enforc- ed. 40 So, where one person undertook to charge the estate of a deceased person for goods bought, thinking the estate liable therefor, and promising to pay for the goods if the estate did not, it was held that, there being no liability on the part of the estate, the promise was not within the statute. 41 A promise that another will perform, that other not being bound to the promisee, is not within the statute. Thus, a prom- ise that another will deliver stock to the promisee, there being no contract between such other person and the promisee to de- liver such stock, is not a collateral promise. 42 Promise Extinguishing Debt. Sometimes the promise results in the extinguishment of the original debt, leaving no one who can be said to be primarily liable. In such cases the statute does not apply. 48 Novation by the substitution of parties is a common instance of this. Suppose A. owes B. $10, and B. owes C. a like sum, and all three, meeting together, orally agree that A. shall pay C. $10, and that B.'s right against A. and liability to C. shall be ter- minated and discharged. Such an agreement could be enforced, and C. could hold A. on his promise to pay ; for, after the dis- charge of B. from liability, A. cannot say he has promised to pay the debt of another, although, indirectly, it has that effect. He has promised merely to pay his own debt in a particular the withdrawal of the suit, and promised to pay therefor. READ v. NASH, 1 Wils. 305. *o Loomis v. Newhall, 15 Pick. (Mass.) 159. " MEASE v. WAGNER, 1 McCord (S. C.) 395. «2 HARGREAVES v. PARSONS, 13 Mees. & W. 561. For the same reason, an oral promise to the purchaser of corporate stock that the stock would pay 15 per cent dividends is enforceable ; there being no liability on the part of the corporation to pay such dividends. Moore- house v. Crangle, 36 Ohio St. 130, 38 Am. Rep. 564. 43 Thornton v. Guice, 73 Ala. 321 ; Packer v. Benton, 35 Conn. 343, 95 Am. Dec. 246; Howell v. Field, 70 Ga. 592; Day v. Cloe, 4 Bush (Ky.) 563; Andre v. Bodman, 13 Md. 241, 71 Am. Dec. 628; Curtis v. Brown, 5 Cush. (Mass.) 48S; Yale v. Edgerton, 14 Minn. 194 (Gil. 21), 100 Am. Dec. 190 ; Meriden Britannia Co. v. Zingsen, 48 N. Y. 247, 8 Am. Rep. 549; Allshouse v. Ramsay, 6 Whart. (Pa.) 311, 37 Am. Dec. 417; Arnold v. Stedman, 45 Pa. 186; Wallace v. Freeman, 25 Tex. Sup. 91; Watson v. Jacobs, 29 Vt. 169; GOODMAN v. CHASE, 1 Barn. & Aid. 297 ; Bird v. Gammon, 3 Bing. N. C. 8S3. § 81) VOIDABLE CONTRACTS OF PRINCIPAL. 95 way. 4 * So, where a father was indebted to his son, and a third person, in consideration of a release of the father from the debt, orally promised to pay it, and the release was granted, the promise was not within the statute, for, after the release, there was no one liable for the debt except the promisor; hence, no collateral liability." The same rule applies where the creditor releases his debtor in consideration of the debt being assumed by such debtor jointly with another. The per- son becoming so jointly bound cannot claim to be collaterally liable. 46 Voidable Contracts of Principal. There is conflict whether a promise to pay the debt of a per- son who was not legally competent to contract is within the statute. In some courts it is held that such a promise is col- lateral, and, if oral, is not enforceable. Hence a promise to answer for a debt incurred by an infant is within the statute. The infant's contract is valid until avoided by him, and it can be avoided by him only. The test is not that the principal could have a defense. 47 Other courts hold that the person un- <* Carlisle v. Campbell, 76 Ala. 247; Welch v. Kenny, 49 Cal. 49; Buchanan v. Moran, 62 Conn. .S3, 25 Atl. 396; Karr v. Porter, 4 Houst. (Del.) 297; Sapp v. Faircloth, 70 Ga. 690; Casey v. Miller, 3 Idaho, 567, 32 Pac. 195; Runde v. Runde, 59 111. 98; Hardy v. Bla- zer, 29 Ind. 226, 92 Am. Dec. 347; Lester v. Bowman, 39 Iowa, 611; Day v. Cloe, 4 Bush (Ky.) 563; Dearborn v. Parks, 5 Greenl. (Me.) 81, 17 Am. Dec. 206; Webster v. Le Compte, 74 Md. 249, 22 Atl. 232; Eden v. Chaffee, 160 Mass. 225, 35 N. E. 675 ; Mulcrone v. American Co., 55 Mich. 622, 22 N. W. 67; Yale v. Edgerton, 14 Minn. 194 (Gil. 144); Wilson v. Vass, 54 Mo. App. 221; Booth v. Eighmie, 60 N. T. 238, 19 Am. Rep. 171; Estabrook v. Gebhart, 32 Ohio St. 415; Miller v. Lynch, 17 Or. 61, 19 Pac. 845 ; Hearing v. Dittman, 8 Phila. (Pa.) 307; Corbett v. Cochran, 3 Hill (S. C.) 41, 30 Am. Dec. 348; McCreary v. Van Hook, 35 Tex. 631; Bates v. Sabin, 64 Vt. 511, 24 Atl. 1013; Rietz- loff v. Glover, 91 Wis. 65, 64 N. W. 298. Where there is a novation of creditors, the debtor remaining the same, the promise of the latter to pay the new creditor is clearly not within the statute. Aultman & Co. v. Fletcher, 110 Ala. 452, 18 South. 215; Gallaghre v. Nichols, 60 N. ¥. 438. 45 Wood v. Corcoran, 1 Allen (Mass.) 405. *e Ex parte Lane, 1 De Gex, 300. *7 DEXTER v. BLANCHARD, 11 Allen (Mass.) 365; Scott v. Bryan, 73 N. C. 582 ; Brown v. Farmers' Bank, 88 Tex. 265, 31 S. W. 2S5, 33 L. R. A. 359. 96 THE STATUTE OF FRAUDS. (Ch. 3 der disability is not liable, and that a promise to answer for his debt is not collateral, and hence not within the statute.* 8 This must not be confused with a promise by a parent to pay for articles which it is his duty to provide for his children, but to cases only where there is some debt for which the promisor would npt be liable aside from his promise, and which the prin- cipal debtor could avoid on the ground of infancy, insanity, coverture, or other disability. 49 PROMISE TO PAY OUT OF DEBTOR'S PROPERTY. 82. The statute does not apply where the promise is to pay out of the debtor's own property. If the debtor has placed his property in the hands of a third person for the purpose of having it applied upon the debtor's indebtedness, or if a third person has property of the debtor which the latter authorizes to be applied toward his debt, and such third person thereupon orally promise the creditor to pay such debt, the promise is enforceable ; for the promisor is not undertaking himself to pay the debt of another, but is act- ing merely as the agent of the debtor in distributing the prop- erty, and his promise is, in effect, the promise of his princi- pal. 50 To be within the statute, a promise to pay the debt of is King v. Summitt, 73 Ind. 312, 38 Am. Rep. 145; Roche v. Chap- lin, 1 Bailey (S. C.) 419. 4 9 See post, § 130, as to liability of surety on a contract voidable as to the principal. bo Cameron v. Clarke, 11 Ala. 259; Hughes v. Lawson, 31 Ark. 613; McLaren v. Hutchinson, 22 Cal. 187, 83 Am. Dec. 59; Hamill v. Hall, 4 Colo. App. 290, 35 Pac. 927; Consociated Presbyterian Society of Green's Farm v. Staples, 23 Conn. 544; Ledbetter v. McGhees, 84 Ga. 227, 10 S. B. 727 ; Prather v. Vineyard, 9 111. 40; Bott v. Barr, 95 Ind. 243; Todd v. Tobey, 29 Me. 219; Loomis v. Newhall, 15 Pick. (Mass.) 159 ; Mitts v. McMorran, 64 Mich. 664, 31 N. W. 521 : Huyler's Ex'rs v. Atwood, 26 N. J. Eq. 504 ; FIRST NAT. BANK OF SING SING v. CHALMERS, 144 N. Y. 432, 39 N. E. 331; Mason v. Wilson, 84 N. C. 51, 37 Am. Rep. 612 ; DOCK v. BOYD, 93 Pa. 92; Townsend v. Long, 77 Pa. 143, 18 Am. Rep. 438; Peck v. Goff, 18 R. I. 94, 25 Atl. 690; Fullam v. Adams, 37 Vt. 391 ; Goddard v. Mockbee, 5 Cranch, C. C. (13. S.) 666, Fed. Cas. No. 5,493; WILLIAMS v. LEPER, 3 Bur. 1886. The same rule applies where a person takes the assets of a partner- § 82) PKOMISE TO PAT OUT OF DEBTOB'S PEOPEKTT. 97 another must be such a promise that, if enforced, the promisor himself will suffer a loss. The mere fact, however, that the promisor has property of the debtor in his possession, will not take the promise out of the statute, if the promisor has no au- thority to apply such property upon the debt. 61 To come with- in the above rule, the promisor must hold the property free from conditions, and it must be immediately available to apply on the indebtedness. Thus, where the arrangement is to pay after conversion of the property into cash, an oral promise made prior to such conversion is not enforceable. 62 Other reasons offered for holding that a promise by one hold- ing the debtor's property to pay the debt is not within the stat- ute are that the promisor, by taking the property, has become the principal, and that he has become a trustee, and cannot take advantage of the statute to justify a breach of his trust. As the drawee of a bill of exchange is presumed to have funds of the drawer in his possession, his oral acceptance is enforceable. 63 ship, agreeing to pay the firm debts. Provenchee v. Piper, 68 N. H. 31, 36 Atl. 552. Where a person agrees to pay board for workmen, and has the money for that purpose, an oral contract suffices. Chicago & W. Coal Co. v. Liddell, 69 111. 639. si Hughes v. Lawson, 31 Ark. 613; Dilts v. Parke, 4 N. J. Law, 219; State Bank at New Brunswick v. Mettler, 2 Bosw. (N. T.) 392 ; Simp- son v. Nance, 1 Speers (S. C.) 4; Murphy v. Renkert, 12 Heisk. (Tenn.) 397. 62 BELKNAP v. BENDER, 75 N. T. 446, 31 Am. Rep. 476. 63 Espalla v. Wilson, 86 Ala. 487, 5 South. 867 ; JARVIS v. WIL- SON, 46 Conn. 90, 33 Am. Rep. 18; Nelson v. First Nat. Bank, 48 I1L 36, 95 Am. Dec. 510; Louisville, E. & St. L. Ry. Co. v. Caldwell, 98 Ind. 245; Grant v. Shaw, 16 Mass. 341, 8 Am. Dec. 142; McCutchen v. Rice, 56 Miss. 455; Lavell v. Frost, 16 Mont. 93, 40 Pac. 146; Leonard v. Mason, 1 Wend. (N. Y.) 522; Dull v. Bricker, 76 Pa. 255; Stro- hecker v. Cohen, 1 Speers (S. C.) 349; Neumann v. Shroeder, 71 Tex. 81, 8 S. W. 632; Goddard's Estate, 66 Vt. 415, 29 Atl. 634; Shields v. Middleton, 2 Cranch, C. C. (U. S.) 205, Fed. Cas. No. 12,786. Childs' Subetyship^-7 . 98 THE STATUTE OF FEAUDS. (Ch. 3 PROMISE TO DEBTOR. 83. The statute does not apply where the promise is made to the debtor, instead of to the creditor. Where the promise that the debt will be paid is made to the principal debtor himself, it is not within the statute, for the reason that it is not a promise to answer for the debt of an- other. In the sense in which these words are used in the stat- ute, the promise must be made to the creditor. 6 * When one for a consideration orally promises the maker of a note that he will pay it, he cannot set up the statute as a defense for failure to carry out his promise. If the oral promise had been made to the holder of the note, it would be different. PROMISOR ACQUIRING A BENEFIT. 84. The statute does not apply where the chief object of the promise is that the promisor may and does acquire a benefit, or obtain something that he himself wants, although, incidentally, payment by the promisor would result in the payment of another's debt. Frequently negotiations between parties result in one of them orally promising to pay another's debt; but the statute of frauds does not apply necessarily to such cases. The ob- ject of the statute is to protect the promisor, where his chief intention is to become liable for the debt of another; but, o* Tuttle v. Armstead, 53 Conn. 175, 22 Atl. 677 ; North v. Robinson, 1 Duv. (Ky.) 71; Harwood v. Jonea, 10 Gill & J. (Md.) 404, 32 Am. Dec. 130; Hubon v. Park, 116 Mass. 541; ALGER v. SCOVILLE, 1 Gray (Mass.) 391; Pratt v. Bates, 40 Mich. 37; Goetz v. Foos, 14 Minn. 265 (Gil. 196), 100 Am. Dec. 218; Brown, to Use of Clardy, v. Brown, 47 Mo. 130, 4 Am. Rep. 320; Fiske v. McGregory, 34 N. H. 414; Tighe v. Morrison, 116 N. Y. 263, 22 N. E. 164, 5 L. R. A. 617; Rice v. Carter's Adm'r, 33 N. C. 298; Shook v. Vanmat-er, 22 Wis. 532; EAST- WOOD v. KENYON, 11 Adol. & E. 438, 39 E. C. L. 245. A promise to one who is neither the debtor nor the creditor is not within the statute; as a promise to a bailiff that, if he would not arrest the prin- cipal, the promisor would pay. Reader v. Kingham, 13 C. B. (N. S.) 344. § 84) PROMISOR ACQUIRING A BENEFIT. 99 where the chief object of the promisor is to obtain a benefit for himself, he cannot free himself from liability because his con- tract results incidentally in a promise to pay another's debt. 5 * This rule was applied where a person orally agreed to take an assignment at a discount of claims held by the creditors of an insolvent debtor. The object of the promise was the pur- chase of these claims, and not to become collaterally liable for them. 56 So, where a person orally promised to pay the storage charges upon merchandise if the warehouseman would waive his lien therefor, the promisor being about to buy the mer- chandise, and the object of his promise being to obtain imme- diate possession, the promise was enforceable. 57 An oral promise to pay a debt for which the debtor was imprisoned is. enforceable, where the object of the promisor was to enable- the debtor to return to his service. 58 An oral promise by a mortgagee, whose mortgage is subject, to a prior lien, to pay the debt secured by the lien if the lien: holder will not enforce the same, is not within the statute. The- object of the promisor is to improve his own security. 59 Where a person who had entered into a contract to buy ore from ai mining company, and who was also a creditor of the company,, orally promised to see to the payment of one who was engaged in transporting the ore from the mine for delivery to the buyer, 05 Clay v. Walton, 9 Cal. 328; Rhodes v. Matthews, 67 Ind. 131; Patton v. Mills, 21 Kan. 163; Ames v. Foster, 106 Mass. 400, 8 Am. Rep. 343; ALGER v. SCOVILLB, 1 Gray, 391; Calkins v. Chandler, 36 Mich. 324, 24 Am. Rep. 593; Garner v. Hudgins, 46 Mo. 399, 2 Am. Rep. 520 ; Wills v. Cutler, 61 N. H. 405 ; Raabe v. Squier, 148 N. Y. 81, 42 N. E. 516; Muller v. Riviere, 59 Tex. 640, 46 Am. Rep. 291; Greene- v. Burton, 59 Vt. 423, 10 Atl. 575.; DAVIS v. PATRICK, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826; SUTTON v. GREY [1894] 1 Q. P.. D. 285. Zeal in the cause of temperance, and interest in enforcing the- laws, is not such a benefit to the promisor as to make his promise to- pay for a prosecution for selling intoxicating liquor an original one. HOOKER v. RUSSELL, 67 Wis. 257, 30 N. W. 358. 56 ANSTEY v. MARDEN, 1 Bos. & P. (N. R.) 124; Hardy v. Blazer, 29 Ind. 226, 92 Am. Dec. 347 ; Hearing v. Dittman, 8 Phila. (Pa.) 307. 67 Williamson v. Rexroat, 55 111. App. 116. ss Berg v. Spitz, 87 App. Div. 602, 84 N. Y. Supp. 532. so Berkshire v. Young, 45 Ind. 461; Bluthenthal v. Moore, 106 Ga. 424 32 S. E. 344; Power v. Rankin, 114 111. 52, 29 N. E. 185; Fears T. Story, 131 Mass. 47; PRIME v. KOEHLER, 77 N. Y. 91. 100 THE STATUTE OF FRAUDS. (Ch. 3 the promise was held not to be within the statute ; for, unless the mine was worked successfully, the promisor would be able to obtain neither the ore nor the repayment of his loan, and the chief object of his promise was to prevent the stoppage of work. 80 It is not requisite that the benefit be something of pecuniary- value to the promisor. It is sufficient if the chief object of the promise is to accomplish a result which he desires. Thus an oral promise to make good any deficiency in an estate if the promisor be joined as administrator is enforceable. 61 It must not be supposed, however, that in every case where it can be shown that the surety has received a benefit the stat- ute of frauds does not apply. The statute applies if the chief object of the promise be to secure another's debt, although the surety may benefit by credit being extended to the principal, It is very common for a surety to receive compensation for the risk he undertakes, but this does not prevent the application of the statute. Again, a surety without compensation may benefit indirectly from the contract. Where the benefit to be derived is merely an inducement to enter into the contract, it is not sufficient. There must be a beneficial participation in the main contract. It is not sufficient that the creditor has re- linquished an advantage in consequence of the promise, if the advantage so relinquished has not inured to the benefit of the promisor. 62 «o DAVIS v. PATRICK, 141 U. S. 479, 12 Sup. Ct. 58, 35 I/. Ed. 826. A large stockholder in a railway company was also a large creditor of the corporation, and was to be paid out of the proceeds of the road. A contractor, who had been employed by the company to build bridges along the line, not receiving payments as agreed, refused to go on with the work. The stockholder orally promised to become security, and it was held that his promise was enforceable, as his chief object was to promote his own interests. There could be no proceeds, and hence no payment by the company to the stockholder as creditor, until the bridges were completed. Emerson v. Slater, 22 How. (U. S.) 28, 16 L. Ed. 360; RAABE v. SQUIER, 148 N. Y. 81, 42 N. E. 516. si TOMLINSON r. GILL, Amb. 330. «a AMES v. FOSTER, 106 Mass. 400, 8 Am. Rep. 343; DEXTER v. BLANCHARD, 11 Allen (Mass.) 365; Curtis v. Brown, 5 Cush. (Mass.) 488; MALLORT v. GILLETT, 21 N. X. 412. 85) pkomisob's own indebtedness. 101 PROMISE TO PAT PROMISOR'S OWN INDEBTEDNESS. 85. The statute dees not apply where the effect of the prom- ise is to pay the promisor's own debt. Assuming Indebtedness. The statute does not apply to an oral promise which is in effect to pay the promisor's own debt, although such promise incidentally is to pay the debt of another. This includes cases of the purchase of property, real or personal, where the buyer, as a part of the purchase price, assumes a mortgage thereon. 63 While the result of his promise is to pay the debt of the mort- gagor, its chief object is the payment of his own debt in a particular way ; that is, instead of promising to pay the unpaid portion of the purchase price to the seller, he promises to pay it to another — the mortgagee. It can make no difference to him whom he pays, so long as he is liable for the debt. The rule is the same, although the indebtedness assumed is unse- cured by a mortgage, 64 or is the general indebtedness of the seller, and not connected with the article bought. 66 Guarantying Note Transferred in Payment. Another class of cases which falls under this head is where a debtor, instead of paying cash, delivers the note of a third person, and orally guaranties payment. The debtor was and is liable for the debt until paid, and his guaranty of a third person's note is a promise to pay his own debt. 68 The rule is otherwise if the note be taken by the transferee as absolute, and not as conditional, payment. 67 ea Provenchee v. Piper, 6S N. H. 31, 36 Atl. 552; Huyler's Ex'rs v. Atwood, 26 N. J. Bq. 504; Ruhling v. Hackett, 1 Nev. 360. 84 BARKER v. BUCKXIN, 2 Demo (N. Y.) 45, 43 Am. Dec. 726. «e Wilson v. Bevans, 58 111. 232. «o Mobile & G. R. Co. v. Jones, 57 Ga. 198; Darst v. Bates, 95 111. 493; Little v. Edwards, 69 Md. 499, 16 Atl. 134; Thomas v. Dodge, 8 Mich. 51; Crane v. Wheeler, 48 Minn. 207, 50 N. W. 1033; Barker v. Scudder, 56 Mo. 272; Milks v. Rich, 80 N. Y. 269, 36 Am. Rep. 615; CARDELL v. McNIEL, 21 N. Y. 336;. BROWN v. CURTISS, 2 N. Y. 225; Rowland v. Rorke, 49 N. C. 337; Malone v. Keener, 44 Pa. 107; »7 DOWS v. SWETT, 134 Mass. 140, 45 Am. Rep. 310. 102 THE STATUTE OF FRAUDS. (Ch. 3 Promise by One Joint Debtor. Another class of cases falling under this rule is an oral promise by one jointly liable to pay the entire debt. Where two or more are jointly liable for a debt, as is the case with partners, 88 each is severally liable to the creditor for the entire debt, although, as between themselves, they may be liable pro- portionately only ; hence, when one of the joint debtors prom- ises the creditor to pay the entire debt, he is promising to do only what the law would compel him to do, and the statute has no application. 69 Where the creditor deals' with two or more persons jointly, they are jointly liable to him, although, as between themselves, one may be a principal and the other a surety. 70 In these cases a promise by the one who is in fact a surety to pay the entire debt is enforceable, coming under the above rule. 71 DIRECT AND ORIGINAL PROMISES. 86. An oral promise is enforceable, if it be direct and orig- inal, though, as between the promisor and another, the relation of principal and surety exists; but it is not enforceable if the promise be collateral, and the promisee recognizes some person other than the prom- isor as being primarily liable, although the promisee relies solely on the promisor. A creditor can not be required to respect the rights of a surety, if he is not aware that the person with whom he deals occupies that relation. 72 Under such circumstances there is no surety, so far as the creditor is concerned, and an oral Hopkins v. Richardson, 9 Grat. (Va.) 485; Eagle M. & B. Mach. Co. v. Shattuck, 53 Wis. 455, 10 N. W. 690, 40 Am. Rep. 780. 8 8 George, Partnership, p. 249. «» Files v. McLeod, 14 Ala. 611; Weatherly v. Hardman, 68 Ga. 592; Hopkins v. Carr, 31 Ind. 260; GIBBS v. BLANCHARD, 15 Mich. 292 ; Rice v. Barry, 2 Cranch, C. C. (U. S.) 592, Fed. Cas. No. 11,751. ™ Boyce v. Murphy, 91 Ind. 1, 46 Am. Rep. 567; Stone v. Walker, 13 Gray (Mass.) 613; Rottman v. Fix, 25 Mo. App. 571; Hetfield v. Dow, 27 N. J. Law, 440; Ex parte Williams, 4 Yerg. (Xenn.) 579; Wain- wright v. Straw, 15 Vt. 215, 40 Am. Dec. 675. ti GIBBS v. BLANCH ARD, 15 Mich. 292. " See post, § 102. § 86) DIRECT AND ORIGINAL PROMISES. 103 promise would be enforceable. The rule is the same, though the creditor may suspect that the promisor is undertaking to become responsible for another ; and knowledge of the relation between two persons does not require the creditor to respect it during the original negotiations, if he does not choose to do so. Two men might enter a store, and one offer to guaranty the price of goods to be sold to the other. The storekeeper might say to the offerer: "I do not choose to sell goods in this way; but I am willing to sell to you, on credit, whatever you may desire." If the offerer agrees to this arrangement, and promises to pay for the goods, it is a direct and original promise upon his part ; and he cannot escape liability by say- ing that the storekeeper knew that the goods were for the oth- er. The intention is clear, in this case, that there was no in- tention on the part of the storekeeper to accept any collateral liability; but he extended credit to the promisor alone. It is, in effect, a sale to one who, in turn, sells to the other. Other cases are not so clear, and the courts must ascertain, from the surrounding circumstances, the intention of the par- ties. It is clear that if two men enter a store, and one says to the storekeeper, "Let this man have what goods he wants, and, if he does not pay for them, I will," the intention of the promisor is to assume a collateral liability only ; for he plainly indicates an expectation that the other will pay, and that he himself will be called upon only in event of the failure of the other to do so. In such cases, an oral promise cannot be en- forced; 73 nor can the storekeeper, by any uncommunicated t » Webb v. Hawkins Co., 101 Ala. 630, 14 South. 407; Harris v, Frank, 81 Cal. 280, 22 Pac. 356; Ruggles v. Gatton, 50 111. 412; Lance v. Pearce, 101 Ind. 595, 1 N. B. 184; Walker v. Irwin, 94 Iowa, 448, 62 N. W. 785; Moses v. Norton, 36 Me. 113, 58 Am. Dec. 738; Norris v. Graham, 33 Md. 56; Bugbee v. Kendricken, 130 Mass. 437; Hagadorn v. Stronaeh Co., 81 Mich. 56, 45 N. W. 650 ; WELCH v. MARVIN, 36 Mich. 59 ; Maurin v. Fogelberg, 37 Minn. 23, 32 N. W. 858, 5 Am. St. Rep 814; Gill v. Reed, 55 Mo. App. 246; Walker v. Richards, 39 N. H 259- Cowdin v. Gottgetreu, 55 N. Y. 650; Birchell v. Neaster, 36 Ohio St 331; Bixby v. Church, 28 Or. 242, 42 Pac. 613; Lewis v. Lewis Lumber Co., 156 Pa. 217, 27 Atl. 20; Matthews v. Milton, 4 Yerg (Tenn.) 576, 26 Am. Dec. 247; Mead v. Watson, 57 Vt 426; Ware v. Stephenson, 10 Leigh (Va.) 155; West v. O'Hara, 55 Wis. 645, 13 N W 894- JONES v. COOPER, Cowp. 227. A collateral promise is not 104 THE STATUTE OF FRAUDS. (Ch. 3 mental intention on his part to look to the promisor only, affect the liability of the latter. If, however, the speaker says, "Let this man have what goods he wants, and I will pay you," it is a direct and original promise; and, though oral, is enforce- able. 7 * The other man might be the servant of the promisor; and, if there were no circumstances tending to indicate the contrary, the storekeeper would be justified in supposing that delivery to the other was delivery to the promisor, and could hold the latter, although the promisor may not have meant what he said. There is an intermediate form of expression which is equivocal, and which requires additional facts to en- able the courts to determine whether the promise is original or collateral, and that intermediate form is, "Let this man have what goods he wants, and I will see you paid." Does the speaker mean that he will see the storekeeper paid by the other man, or by the promisor himself ? If the former, the promise is collateral, and, if oral, not enforceable; 7B while, in the latter case, it is direct and enforceable. 78 Cases of this kind require evidence of surrounding circumstances to discover the inten- tion of the parties ; 7T but, when the intention is ascertained, taken out of the statute of frauds because made after the original obli- gation. MALLORY v. GILLETT, 21 N. T. 412. 74 Faires v. Lodane, 10 Ala. 50; BALDWIN v. HIERS, 73 Ga. 739; Williams v. Corbet, 28 111. 262 ; Miller v. Neihaus, 51 Ind. 401 ; Backus v. Clark, 1 Kan. 303, 83 Am. Dec. 437 ; Bugbee v. Kendricken, 130 Mass. 437; MORRIS v. OSTERHOUT, 55 Mich. 262, 21 N. W. 339; Wood v. Patch, 11 R. I. 445 ; Eddy v. Davidson, 42 Vt. 56. Where the promisor. said, "I will be responsible," this was held to be original and enforceable. Chase v. Day, 17 Johns. (N. Y.) 114. In Ueberroth v. Riegel, 71 Pa. 280, the writer of the following order was held liable as a principal, and not as a guarantor : "Please give the bearer, H. F., the goods which he will select, not exceeding over $550, on my ac- count." tb MANLEY v. GEAGAN, 105 Mass. 445; Rancil v. Krohne, 31 Pa. Super. Ct. 130 ; WATKINS v. PERKINS, 1 Ld. Raym. 224. 78 BALDWIN v. HIERS, 73 Ga. 739; Hartley v. Varner, 88 111. 561; Grant v. Wolf, 34 Minn. 32, 24 N. W. 289; LAKEMAN v. MOUNT- STEPHEN, L. R. 7 Eng. & Ir. App. 17; DAVIS v. PATRICK, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826. " In Keate v. Temple, 1 Bos. & P. (N. R.) 158, a lieutenant in the navy requested a tailor to supply the crew of the ship with clothing, and said: "I will see you paid at the pay table." The court regarded the promise as collateral, for the amount was too large for the prom- § 86) DIRECT AND ORIGINAL PROMISES. 105 it is easy to determine whether the promise is within the stat- ute or not. The intention of the parties is a question of fact for the jury; and not only the language employed, but all the sur- rounding circumstances bearing upon the question, should be considered. 78 Building Contracts. The question frequently arises in the case of building con- tracts, where the contractor fails to pay workmen and material- men. If the owner says to the workmen, "Go on, and I will pay you," the promise is original, the object being to promote the interests of the promisor; 79 but if he says, "Go on, and, if the contractor does not pay you, I wjll," the promise is col- lateral, and, being oral, is not enforceable. Giving Credit to the Promisor. It is said, frequently, that a promise is original if the cred- itor has given credit to the promisor. This is true, if the ex- pression "giving credit" is used in the sense that it was the intention of the parties, as the result of their conversation and acts, that the promisor should assume the liability of a princi- pal, and not that of a surety. It does not mean, where the in- tention is clear that the promisor intended to incur collateral liability only, that the creditor could change that liability by charging the promisor upon his books, and making no charge against the principal. 80 The creditor cannot manufacture evi- dence for himself in that manner. Nor does it make any diff er- isor to undertake personally, and the tailor must have relied upon the power of the lieutenant to stop the money out of the sailors' pay. 7 8 Blank v. Dreher, 25 111. 331; Elder v. Warfield, 7 Har. & J. (Md.) 391; DAVIS v. PATRICK, 141 U. S. 479, 12 Sup. Ct. 58, 35 L. Ed. 826. Where the promisor promised to pay the creditor if the latter would lend money to his son, it was considered to be a collateral promise from the form of expression used. It might have been otherwise, had the request been to pay the money to the son. BUTCHER v. AN- DREWS, Comeb. 473. 79 Clifford v. Luhring, 69 111. 401; Hall v. Alford, 105 Ky. 664, 49 S. W. 444; Block v. Galitzka, 114 App. Div. 799, 100 N. T. Supp. 173. An oral promise to pay materialmen is enforceable as to material thereafter furnished, but not as to that already furnished. Owen v. Stevens, 78 111. 462. so Cowdin v. Gottgetreu, 55 N. Y. 650. 106 THE STATUTE OF FRAUDS. (Oh. 3 ence that the creditor has relied solely upon the promisor. 81 If the creditor has made a charge upon his books against the principal, it is prima facie evidence that the creditor recog- nized the collateral liability of the promisor. 82 THE MEMORANDUM— REQUIREMENTS. 87. The memorandum required by the statute of frauds need not he formal; hut it must contain all of the terms of the contract, and he signed by the party to be, charged, or by his agent. If it was the intention of the parties to embody their con- tract of suretyship in a written instrument, and to regard such instrument as the contract, the rules which apply to written instruments would govern; 83 but it will be noticed that the statute of frauds does not require a written contract, but pro- vides merely for a written memorandum or note of an oral contract, which, in the absence of a formal written contract, would be sufficient. The form of this memorandum is wholly immaterial, if it substantially shows the transaction. 84 The minutes of a corporate meeting would be sufficient. 85 It need not be contained on one sheet of paper, but several letters or si BUCKMYR v. DARNALL, 2 Ld. Raym. 10S5, 5 Mod. 248, Salk. 27, 3 Salk. 15, Holt, 606. 8 2 Hardman v. Bradley, 85 111. 162; MEAD v. WATSON, 57 Vt. 426. It is, however, not conclusive. Swift v. Pierce, 13 Allen (Mass.) 136. The fact that the creditor makes out a bill to the principal is strong evidence that the promisor is collaterally liable. Larson v. Wyman, 14 Wend. (N. Y.) 246. So, where the promisee sues the one for whom services were rendered. HOOKER v. RUSSELL, 67 Wis. 257, 30 N. W. 358. as See ante, § 46. s* Barickman v. Kuykendall, 6 Blackf. (Ind.) 21; Ellis v. Deadman, 4 Bibb (Ky.) 466; Barney v. Patterson, 6 Har. & J. (Md.) 182; Lerned v. Wannemacher, 9 Allen (Mass.) 412 ; EVANSVILLE NAT. BANK v. KAUPMANN, 93 N. Y. 273, 45 Am. Rep. 204 ; Elf e v. Gadsden, 2 Rich. Law (S. C.) 373; Nichol v. Ridley, 5 Yerg. (Tenn.) 63, 26 Am. Dec. 254. The memorandum may be written with ink or pencil, or it may be printed or stamped. Vielie v. Osgood, 8 Barb. (N. Y.) 130; Draper v. Pattina, 2 Speers (S. C.) 292. sb Tufts v. Plymouth Co., 14 Allen (Mass.) 407; Chase v. Lowell, 7 Gray (Mass.) 33. § 87) THE MEMORANDUM — REQUIREMENTS. 107 telegrams may be taken together to make a complete agree- ment ; 86 but it is well settled that, where the agreement is made from more than one paper, unless they all are signed, 87 they must refer to each other specifically, 88 and oral evidence will not be allowed to connect them. 88 While the memorandum is not required to be formal, it must contain all of the terms of the contract, 90 as oral evidence will not be allowed to supply any that are missing. 91 Even a formal contract will not be sufficient, if any terms must be supplied by oral evidence. 92 The memorandum must indicate the party who has the right to enforce the liability ; otherwise, it might fall into the hands of some one for whom the promisor never intended it. 93 The mere fact that a name appears is not sufficient. 94 The subject-matter of the contract must appear, at least in general terms. 95 If the parties have used abbreviations, or s« Jones v. Post, 6 Cal. 102; Lerned v. Wannemacher, 9 Allen (Mass.) 412; Wilson Sewing-Mach. Co. v. Schnell, 20 Minn. 40 (Gil. 33); Simons v. Steele, 36 N. H. 73; Tallman v. Franklin, 14 N. Y. 584; Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446, 14 L. Ed. 493. 87 Work v. Cowhick, 81 111. 317; Peck v. Vandemark, 99 N. Y. 29, 1 N. B. 41; Thayer v. Luce, 22 Ohio St. 62; Ide v. Stanton, 15 Vt. 685, 40 Am. Dec. 698; Beckwith v. Talbot, 95 U. S. 289, 24 L. Ed. 496. as Wright v. Weeks, 25 N. Y. 153. so Adams v. McMillan, 7 Port. (Ala.) 73; Nichols v. Johnson, 10 Conn. 192 ; Washington Ice Co. v. Webster, 62 Me. 341, 16 Am. Rep. 462; Boardman v. Spooner, 13 Allen (Mass.) 353, 90 Am. Dec. 196; Scarlett v. Stein, 40 Md. 512 ; Wiley v. Robert, 27 Mo. 388 ; Abeel v. RadclifC, 13 Johns. (N. Y.) 297, 7 Am. Dec. 377 ; Blair v. Snodgrass, 1 Sneed (Tenn.) 1; Ide v. Stanton, 15 Vt. 685, 40 Am. Dec. 693; Wil- liams v. Morris, 95 U. S. 456, 24 L. Ed. 360. so Brodie v. St. Paul, 1 Ves. Jr. 326. If the agreement be vague and indefinite, it cannot be said to be in writing. Wright v. Weeks, 25 N. Y. 153. 91 Ridgway v. Ingram, 50 Ind. 145, 19 Am. Rep. 706; Stearns v. Hall, 9 Cush. (Mass.) 31 ; Hall v. Soule, 11 Mich. 494 ; Bailey v. Ogden, 3 Johns. (N. Y.) 399, 3 Am. Dec. 509 ; Bryan v. Hunt, 4 Sneed (Tenn.) 543, 70 Am. Dec. 262 ; Ide v. Stanton, 15 Vt. 685, 40 Am. Dec. 698. 92 Calkins v. Falk, 38 How. Prac. (N. Y.) 62. 93 Williams v. Lake, 2 El. & El. 349. 9* Bailey v. Ogden, 3 Johns. (N. Y.) 399, 3 Am. Dec. 509. 9 6 Nichols v. Johnson, 10 Conn. 198 ; Hurley v. Brown, 98 Mass. 545, 96 Am. Dec. 671 ; Hall v. Soule, 11 Mich. 494; Sale v. Darragh, 2 Hilt. (N. Y.) 184. 108 THE STATUTE OF FRAUDS. (Ch. 3 technical or ambiguous terms, 96 oral evidence may be intro- duced to show the meaning they have acquired by custom and usage, but not to show the sense in which the parties have used them. 87 Consideration. There has been considerable conflict upon the question whether the memorandum should express the consideration for the promise. This results from a doubt whether the word "agreement" in the statute is to be taken in its popular or in its technical sense. In the latter case a consideration is neces- sary, 98 and must be shown. 99 The courts which hold that a consideration must be express- ed do not require that it be expressed precisely, but regard it sufficient if it appear by implication. If a guaranty be written upon the principal contract, it is presumed to have been made at the same time; 10 ° and, if the latter show a consideration, »e UNION BANK OF LOUISIANA v. COSTER, 3 N. Y. 203, 53 Am. Dec. 280. v Wright v. Weeks, 25 N. Y. 153; Salmon Falls Mfg. Co. v. God- dard, 14 How. (U. S.) 446, 14 L. Ed. 493. os See ante, § 49. o» Weldin v. Porter, 4 Houst. (Del.) 236; Hargroves v. Cooke, 15 Ga. 321; Emerson v. Aultman, 69 Md. 125, 14 Atl. 671; Jones v. Palmer, 1 Doug. (Mich.) 379 ; Underwood v. Campbell, 14 N. H. 393 ; Laing v. Lee, 20 N. J. Law (Spencer) 337; Drake v. Seaman, 97 N. Y. 234; Par- ry v. Spikes, 49 Wis. 384, 5 N. W. 794, 35 Am. Rep. 782; WOOD v. BENSON, 2 Cromp. & J. 94. In the following states, the considera- tion need not be shown: Connecticut: Sage v. Wilcox, 6 Conn. 81. Maine: Gillighan v. Boardman, 29 Me. 79. Missouri: Little v. Nabb, 10 Mo. 3. North Carolina: Ashford v. Robinson, 30 N. C. 114. Ohio: Reed v. Evans, 17 Ohio, 128. Vermont: Gregory v. Gleed, 33 Vt. 405. In some states the consideration need not be shown, because the stat- ute enacted in those states uses the word "promise," instead of "agree- ment," and a promise may be made without a consideration. Ellison v. Jackson, 12 Cal. 542; Dorman v. Bigelow, 1 Fla. 2S1; Ratliff v. Trout, 6 J. J. Marsh. (Ky.) 605; Wren v. Pearce, 4 Smedes & M. (Miss.) 91; Campbell v. Findley, 3 Humph. (Tenn.) 330; Ellett v. Brit- ton, 10 Tex. 208 ; Colgin v. Henley, 6 Leigh (Va.) 85. In Alabama the statute requires that the agreement express the consideration, while in Illinois and Indiana the statute waives that requirement. See, as to this subject, Stearns, Law of Suretyship, p. 30. ioo UNION BANK OF LOUISIANA v. COSTER, 3 N. Y. 203, 53 Am. Dec. 280. § 87)» THE MEMORANDUM — REQUIREMENTS. 109 it is sufficient. 101 If the writing be under seal, a consideration need not be mentioned. 102 The words "for value received" are likewise sufficient. 103 "I guaranty the payment of any goods which S. delivers to N." sufficiently shows that the con- sideration was the delivery of the goods. 104 Where the words are ambiguous, and might refer to a past as well as to an executory consideration, oral evidence of the situation of the parties at the time the contract was made is allowed, in order to arrive at an interpretation of their lan- guage. 105 Thus, where the words were, "I hereby guaranty B.'s account," and it was shown orally that there was a pre- existing account to which the words could apply, the guaranty was void for want of consideration. 106 Signature. The statute requires the memorandum to be signed by the party to be charged, 107 or by some person authorized by him, but does not require the signature of both parties. 108 Hence a formal written contract would not be a compliance with the statute, if the signature of the promisor be lacking. The courts are very liberal in this, as in most of the require- 101 Jones v. Kuhn, 34 Kan. 414, 8 Pac. 777; Nabb v. Koontz, 17 Md. 283. 102 Douglass v. Howland, 24 Wend. (N. T.) 35. See ante, § 49. io s Martin v. Hazard Powder Co., 2 Colo. 596; Whitney v. Stearns. 16 Me. 394; D. M. Osborne & Co. v. Baker, 34 Minn. 307, 25 N. W. 606, 57 Am. Rep. 55; Miller v. Cook, 23 N. Y. 495; Woodward v. Pick- ett, Dud. (S. C.) 30; Lapham v. Barrett, 1 Vt 247; Dahlman v. Ham- mel, 45 Wis. 466. io* Stadt v. Lill, 9 Bast, 348. io5 Walrath v. Thompson, 4 Hill (N. T.) 200. loo Allnut v. Ashenden, 5 Man. & G. 392. iot A signature is necessary, though the memorandum is written by the party to be charged. Bailey v. Ogden, 3 Johns. (N. Y.) 399, 3 Am. Dec. 509; Anderson v. Harold, 10 Ohio, 399; Barry v. Law, 1 Cranch, C. C. 77, 89 Fed. 582. The statute does not require a seal. Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330 ; Parris v. Martin, 10 Humph. (Tenn.) 495. los Nichols v. Johnson, 10 Conn. 192; Farwell v. Lowther, 18 111. 252; Shirley v. Shirley, 7 Blackf. (Ind.) 452; Barstow v. Gray, 3 Greenl. (Me.) 409; Penniman v. Hartshorn, 13 Mass. 87; Morin v. Martz, 13 Minn. 191 (Gil. 180); Webster v. Bla, 5 N. H. 540; Clason v. Bailey, 14 Johns. (N. Y.) 484; Douglass v. Spears, 2 Nott & McC. 207, 10 Am. Dec. 588; Sheid v. Stamps, 2 Sneed (Tenn.) 172. 110 THE STATUTE OP FRAUDS. (Ct. 3 ments of the statute, and the signature may be made by ini- tials 109 or by mark. 110 It may be printed, if affixed by author- ity, or such printed signature has been adopted. 111 It is not necessary that the signature appear at the end of the mem- orandum, but it may appear in any part, if it was placed there to authenticate the instrument. 112 Agency. Generally, any one who can act as agent for any purpose can act as an agent for the purpose of affixing the signature required by the statute. 113 One person can act as agent for each of the parties, 114 but neither can act as agent for the other. 116 Authority to the agent may be given in the same manner as in other cases of agency; and an unauthorized act may be ratified afterwards. 116 Written authority is not necessary, 117 100 Sanborn v. Flagler, 9 Allen (Mass.) 474; Dykers v. Townsend, 24 N. Y. 57; Phillips v. Hooker, 62 N. C..193; Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446, 14 L. Ed. 493. no Morris v. Kniffln, 37 Barb. (N. Y.) 336. in Lerned v. Wannemacher, 9 Allen (Mass.) 412; Drury v. Young, 58 Md. 546, 42 Am. Rep. 343 ; Merritt v. Clason, 12 Johns. (N. Y.) 102, 7 Am. Dec. 286. But, if the statute uses the word "subscribed," a printed signature would not be sufficient. Vielie v. Osgood, 8 Barb. (N. Y.) 130. ii2McConnell v. Brillhart, 17 111. 354, 65 Am. Dec. 661; Wise v. Ray, 3 G. Greene (Iowa) 430; Penniman v. Hartshorn, 13 Mass. 87; Hawkins v. Chace, 19 Pick. (Mass.) 502; Clason v. Bailey, 14 Johns. (N. Y.) 484. Where the signature is not at the end, it is for the jury to decide whether the party intended to be bound by it, or whether he refused to complete the instrument. Johnson v. Dodgson, 2 Mees. & W. 653. us Ennis v. Waller, 3 Blackf. (Ind.) 472; Brent v. Green, 6 Leigh (Va.) 16; Bird v. Boulter, 4 Barn. & Adol. 443. iii Adams v. McMillan, 7 Port. (Ala.) 73; Cleaves v. Foss, 4 Greenl. (Me.) 1; Singstack's Ex'rs v. Harding, 4 Har. & J. 186, 7 Am. Dec. 669; Morton v. Dean, 13 Mete. (Mass.) 385; Endicott v. Penny, 14' Smedes & M. (Miss.) 144 ; McComb v. Wright, 4 Johns. Ch. (N. Y.) 659 ; Gordon v. Saunders, 2 McCord, Eq. (S. C.) 151; Smith v. Jones, 7 Leigh (Va.) 165, 30 Am. Dec. 498. us Robinson v. Garth, 6 Ala. 204, 41 Am. Dec. 47; Boardman v. Spooner, 13 Allen, 353, 90 Am. Dec. 196. no Holland v. Hoyt, 14 Mich. 238. In Kentucky ratification must be in writing. Riggan v. Crain, 86 Ky. 249, 5 S. W. 561. H7 Rutenberg v. Main, 47 Cal. 213; Johnson t. Dodge, 17 111. 433; § 88) MEMORANDUM — TIME OF MAKING. Ill except that authority to execute a sealed instrument must be also under seal. 118 The statute is sufficiently complied with if the agent sign his own name. 119 Delivery. While a written contract, which is regarded by the parties as being the contract itself, is not valid until delivered, 120 the statute of frauds does not require a delivery of the memoran- dum, which is evidence of an oral contract only. As soon as, a sufficient memorandum has been made, the statute is com- plied with, whatever may become of the memorandum after- wards. MEMORANDUM— TIME OF MAKING. 88: The memorandum may be made at any time before suit is brought. As the memorandum provided for by the statute of frauds is not the contract itself, but written evidence only of an oral contract, it is sufficient if such writing be made at any time prior to bringing suit. 121 A subsequent recognition of the con- tract by letter would meet the requirement of the statute. Coleman v. Bailey, 4 Bibb (Ky.) 297; Alna, Inhabitants of, v. Plum- mer, 4 Greenl. (Me.) 258; Ulen v. Kittredge, 7 Mass. 233; Johnson v. McGruder, 15 Mo. 365; Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330; McWhorter v. McMahan, 10 Paige (N. Y.) 386; Yerby v. Grigsby, 9 Leigh (Va.) 337; Conaway v. Sweeney, 24 W. Va. 643. Contra, Bill- iard v. Johns, 50 Ala. 382. us Blood v. Hardy, 15 Me. 61. ii»McConnell v. Brillhart, 17 111. 354, 65 Am. Dec. 661; Williams v. Woods, 16 Md. 220; Williams v. Bacon, 2 Gray (Mass.) 387; Curtis v. Blair, 26 Miss. 309, 59 Am. Dec. 257 ; Dykers v. Townsend, 24 N. Y. 57; Phillips v. Hooker, 62 N. C. 193; Yerby v. Grigsby, 9 Leigh (Va.) 387 ; Salmon Falls Mfg. Co. v. Goddard 1 , 14 How. (U. S.) 447, 14 L. Ed. 493. ]2o See ante, § 41. i2i Williams v. Bacon, 2 Gray (Mass.) 287; Webster v. Zielly, 52 Barb. (N. Y.) 482; Eilbert v. Finkbeiner, 68 Pa. 243, 8 Am. Rep. 176. 112 THE STATUTE OF FRAUDS. (Ch. 3 CONFLICT OF LAWS. 89. Where the statute of frauds prevails, courts will not en- force an oral contract of suretyship, although such contract would be enforceable in the state 'where made. PLEADING. 90. If a surety desire to avail himself of the defense of the statute of frauds, he must plead it. Lex Fori. The statute of frauds is remedial. It does not make the con- tract void, 122 but governs the evidence admissible to prove such a contract. Hence an oral contract of suretyship, made in a state where the statute of frauds has not been re-enacted, and enforceable there, could not be enforced if suit be brought in a state where the statute is in force. The courts of the lat- ter state would apply the law governing the admission of evi- dence therein, and would refuse to receive oral evidence of a contract of suretyship. 123 To do otherwise would be to let in all of the evils the statute was designed to remedy. Waiver of Defense. A surety may waive his defense under the statute. It is not requisite that the plaintiff's declaration or petition should show that a contract of suretyship was in writing. 12 * It suf- fices if an agreement be shown, as it will be presumed to be valid and enforceable until the contrary be proved. The stat- ute of frauds has not altered the rules of pleading, but only 122 See ante, § 74. 123 Downer v. Chesebrough, 36 Conn. 39, 4 Am. Rep. 29; Bird v. Munroe, 66 Me. 337, 22 Am. Hep. 571 ; Emery v. Burbank, 163 Mass. 326, 39 N. E. 1026, 28 L. R. A. 57, 47 Am. St, Rep. 456; Heaton v. EI- dridge, 56 Ohio St. 101, 46 N. E. 638, 36 L. R. A. 817, 60 Am. St. Rep. 737. 124 Porter v. Drennan, 13 111. App. 362; Ecker v. McAllister, 45 Md. 290 ; Walker v. Richards, 39 N. H. 259 ; Marston v. Sweet, 66 N. Y. 207, 23 Am. Rep. 43; Macey v. Childress, 2 Tenn. Ch. 438; Lilley v. Hewitt, 11 Price, 494. § 90) PLEADING. 113 the proof required. 125 If the defendant does not plead the stat- ute, he cannot obtain the benefit of it. 126 If the declaration or bill, however, affirmatively shows an oral contract, the defend- ant may demur. 127 las Dexter v. Ohlander, 89 Ala. 262, 7 South. 115; Barnard v. Lloyd, 85 Cal. 131, 24 Pac. 658; Hancock v. Council, 96 Ga. 778, 22 S. B. 335; Speyer v. Desjardins, 144 111. 641, 32 N. B. 283, 36 Am. St. Eep. 473; Ecker v. Bonn, 45 Md. 278; Mullaly v. Holden, 123 Mass. 583; Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270; Hinchman v. Rutan, 31 N. J. Law, 496; Marston v. Swett, 66 N. Y. 206, 23 Am. Rep. 43; Shields v. Titus, 46 Ohio St. 528, 22 N. E. 717. In a few states the rule has been changed by statute. Waymire v. Waymire, 141 Ind. 164, 40 N. E. 523; Burden v. Knight, 82 Iowa, 584, 48 N. W. 985. 126 Guynn v. McCauley, 32 Ark. 97; Osborne v. Endicott, 6 Cal. 149, 65 Am. Dec. 498; Beard v. Converse, 84 111. 515 ; Wiseman v. Thomp- son, 94 Iowa, 607, 63 N. W. 346 ; Douglass v. Snow, 77 Me. 91 ; Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938; Wells v. Monihan, 129 N. Y. 161, 29 N. E. 232 ; Lyon v. Crissman, 22 N. C. 268. The defendant cannot set up his defense by requesting a special finding. Porter v. Wormser, 94 N. Y. 431. The defendant is entitled to the benefit of the statute, although he admits the contract in his pleadings. Burt v. Wilson, 28 Cal. 632, 87 Am. Dec. 142; Hollingshead v. McKenzie, 8 Ga. 457; Tay- lor v. Allen, 40 Minn. 433, 42 N. W. 292 ; Thomas v. Churchill, 48 Neb. 266, 67 N. W. 182; Ashmore v. Evans, 11 N. J. Eq; 151; Holler v. Richards, 102 N. C. 545, 9 S. E. 460. 127 Linn Boyd Tobacco Warehouse Co. v. Terill, 76 Ky. 463; How- ard v. Brower, 37 Ohio St. 402; Macey v. Childress, 2 Tenn. Ch. 438; Randall v. Howard, 2 Black (U. S.) 585, 17 L. Ed. 269. See Stearns, Law of Suretyship, p. 52. Childs' Suretyship— 8 114 CONSTRUCTION OF THE CONTKACT. (Ch. 4. CHAPTER IV. CONSTRUCTION OF THE CONTRACT. 91. Rules. 92-93. What Constitutes a Guaranty. 94. Conflict of Laws. RULES. 91. A contract of suretyship is construed like any other con- tract; and its construction is governed by the follow- ing rules: (a) Oral evidence is not admissible to alter the contract; but it will be reformed by a court of equity, if it do not express the real intention of the parties. (b) Words are to be given their ordinary meaning. (c) The agreement should receive that construction which best will effectuate the intention of the parties. / (d) The intention is to be collected from the surrounding circumstances, and from the whole instrument. (e) If the contract be susceptible of two meanings, it will be given the meaning which will render it valid. (f) Words will be construed more strictly against the par- ty using them. (g) Weight -will be given to the construction placed upon the contract by the parties, (h) Express terms will prevail over those implied by law. (i) Where the contract is given under a particular statute or by-law, it will be construed with reference to that statute or by-law. (j) In case of doubt, a surety will be favored. Reasonable Construction. So much has been said about a surety being a favorite of the law that it seems to be an impression, in some cases, that all ambiguities in the contract are to be interpreted in his favor; and some even seem to think that he is never to be held liable unless it be impossible to discover any loophole whereby he can escape liability. However, the general rule in interpreting a contract of suretyship is that it is to receive § 91) KULES. 115 the liberal interpretation accorded to any other contract. 1 It must not be forgotten that the creditor frequently parts with his money, relying entirely upon the financial responsibility of the surety, and that guaranties generally are drawn hur- riedly and informally by the guarantor himself; and if, by the selection of his language, he has not made his intention perfectly clear to a person of the average intelligence, he should not be allowed to escape because of ambiguities for which he alone is responsible. A strict, rigid, and technical construc- tion would interfere seriously with the business of the world. 2 On the other hand, the promisee should not be allowed to insist upon an extreme and unreasonable interpretation in his favor. A contract should not be construed so as to give all of the benefits to one party and all of the burdens to the other, al- though the parties are at liberty, to a great extent, to shift benefits and burdens by express agreement. The construction . of the contract is a matter of law for the court. 8 i London & S. F. Bank v. Parrott, 125 Cal. 472, 58 Pac. 164, 73 Am. St Rep. 64 ; White v. Reed, 15 Conn. 457; United States v. Maloney, 4 App. D. C. 505 ; Peoria Savings, Loan & Trust Co. v. Elder, 165 111. 55, 45 N. E. 1083; Irwin v. Kilburn, 104 Ind. 113, 3 N. E. 650; Shickle, Harrison & Howard Iron Co. v. Water Works Co., 83 Iowa, 396, 49 N. W. 987; Lowe v. Beckwith, 14 B. Mon. (Ky.) 184, 58 Am. Dec. 659; Gillighan v. Boardman, 29 Me. (16 Shep.) 79; Hooper v. Hooper, 81 Md. 155, 31 Atl. 503, 48 Am. St. Rep. 496; Mussey v. Rayner, 22 Pick. (Mass.) 223; Mathews v. Phelps, 61 Mich. 327, 28 N. W. 108, 1 Am. St. Rep. 581 ; Shine's Adm'r v. Central Sav. Bank, 70 Mo. 524 ; Simons v. Steele, 36 N. H. 73 ; Ulster County Sav. Inst. v. Young, 161 N. Y. 23, 55 N. E. 483; SMITH v. MOLLESON, 148 N. Y. 241, 42 N. E. 669; PEOPLE v. BACKUS, 117 N. Y. 196, 22 N. E. 759; EVANSVIDLE NAT. BANK v. KAUFMANN, 93 N. Y. 273, 45 Am. Rep. 204 ; UNION BANK OF LOUISIANA v. COSTER, 3 N. Y. (3 Comst.) 203, 53 Am. Dec. 280 ; Birdsall v. Heacock, 32 Ohio St. 177, 30 Am. Rep. 572 ; Roth v. Miller, 15 Serg. & R. (Pa.) 100 ; Gardner v. Watson, 76 Tex. 25, 13 S. W. 39 ; Noyes v. Nichols, 28 Vt. 159 ; Moore v. Holt, 10 Grat. (Va.) 284 ; DAVIS v. WELLS, 104 U. S. 164, 26 L. Ed. 686 ; United States Fidelity & Guaranty Co. v. Com'rs of Woodson County, 145 Fed. 144, 76 C. C. A. 114. See, generally, as to interpretation of contracts, Clarkf Con- tracts (2d Ed.) c. X. '. 2 DAVIS v. WELLS, 104 U. S. 159, 26 L. Ed. 686; Lawrence v. Mc- Calmont, 2 How. (U. S.) 426, 11 L. Ed. 326. a Bell v. Bruen, 1 How. (U. S.) 169, 17 Pet. 161, 11 L. Ed. 89. 116 CONSTRUCTION OF THE CONTRACT. (Ch. 4 Corporate Suretyship. The construction should be reasonable, and should not be affected by the fact that the surety receives compensation as an inducement to enter into the contract, or that the making of such contracts is a matter of business. While it is true that a contract of suretyship, entered into by a corporation formed for that very purpose, receives a somewhat different construc- tion from that of a private surety, this results from the fact that the corporate surety itself prepares the contract with great care, looking entirely to its own interests, thus bringing in rules of construction which would not enter into a contract signed by a private surety, who frequently signs a contract prepared by the creditor or obligee, and sometimes without even reading it.* Varying by Oral Evidence. The purpose and intent for which the contract was executed must be deduced from the writing itself, 5 and oral evidence will not be allowed to contradict it. 6 A guaranty which is clearly one of payment cannot be changed into one of col- lection, by proof of an understanding of the parties at the time of delivery. 7 Where a bond, given to secure the performance of a contract to deliver brick, stated the amount as 1,000 brick, proof is inadmissible to show that 100,000 was intended. 8 Oral proof is admissible to aid the court in case the language be ambiguous. 8 Reformation of Contract. Where the contract does not express the intention of the parties, a court of equity will reform the instrument to con- form to such intention, as well against the surety as against * Stearns, Law of Suretyship, p. 449. A bond of a surety company must be construed like a contract of insurance. American Surety Co. v. Trust Co. (Tex. Civ. App. 1906) 98 S. W. 387. b American Surety Co. v. Thurber, 121 N. T. 655, 23 N. E. 1129; Hydraulic Press Brick Co. v. Neumeister, 15 Mo. App. 592. « Dendy v. Gamble, 59 Ga. 434; Boston & S. Glass Co. v. Moore, 119 Mass. 435. i Neil v. Ohio College, 31 Ohio St. 15. 8 Cunningham v. Wrenn, 23 III. 64. » SMITH v. VAN WYCK, 40 Mo. App. 522; Hood v. Grace, 7 Hurl. & N. 494. § 91) RULES. 117 the creditor or obligee ; 10 but the facts must be shown clearly and without a shadow of a doubt. 11 It must appear that the contract does not show the intention of both parties. The fact that a mistake existed as to one party only will not be sufficient, unless fraud on the part of the other can be shown* Meaning of Words. The language employed in a contract of suretyship should be interpreted according to its generally accepted meaning, 12 without enlargement or restriction, unless it be ascertained that the parties themselves intended some other meaning. 13 That other than the general meaning was intended may be in- dicated from the context ; 14 and oral evidence of a usage of trade or occupation may be offered to show that the ordinary and popular meaning of a word was not intended. Intention Governs. The true rule for construction of contracts is to give effect to the intention of the parties. 16 This intention must be gathered from the instrument, read in the light of surrounding 10 Olmsted v. Olmsted, 38 Conn. 309; Henkleman v. Peterson, 154 111. 419, 40 N. E. 359; State, to Use of Frank, v. Frank's Adm'r, 51 Mo. 98 ; Smith v. Allen, 1 N. J. Eq. 43, 21 Am. Dec. 33; Clute v. Knies, 102 N. T. 377, 7 N. E. 181 ; PRIOR v. WILLIAMS, 3 Abb. Dec. (N. T.) 624; Butler v. Durham, 38 N. C. 589; Nelninger v. State, 50 Ohio St 394, 34 N. E. 633, 40 Am. St Rep. 674; Town of Rutland v. Paige, 24 Vt 181; Percival v. McCoy (C. C.) 13 Fed. 379. See, also, Weaver v. Shryock, 6 Serg. & R. (Pa.) 262. ii Smith v. Allen, 1 N. J. Eq. 43, 21 Am. Dec. 33; Moser v. Liben- guth, 2 Rawle (Pa.) 428. * Fetter, Equity, p. 314. 12 McCluskey v. Cromwell, 11 N. T. 593; Chase v. McDonald, 7 Har. & J. (Md.) 160. is A guaranty of a contract "so far as they pertain to said" princi- pal is enforceable. The use of "they" for "it" is not uncertain. De Reszke v. Duss, 99 App. Div. 353, 91 N. Y. Supp. 221. ii Taylor v. Smith, 116 N. C. 531, 21 S. E. 202. is Punta Gorda Bank v. State Bank (Fla. 1907) 42 South. 846; Tal- madge v. Williams, 27 La. Ann. 653; SMITH v. MOLLESON, 148 N. Y. 241, 42 N. E. 669; PEOPLE v. BACKUS, 117 N. Y. 196, 22 N. E. 759; EVANSVILLE NAT. BANK v. KAUFMANN, 83 N. Y. 273, 45 Am. Rep. 204; Schultz v. Crane, 6 Hun (N. Y.) 236; TAYLOR v. WETMORE, 10 Ohio, 491; Moore v. Holt, 10 Grat (Va.) 284. See Clark, Contracts (2d Ed.) p. 402. 118 CONSTRUCTION OF THE CONTRACT. (Ch. 4 circumstances. 16 Whenever the intention of the parties has been ascertained, the rule of strict construction applies, and a surety may stand upon the precise terms of his contract. 17 If the parties have agreed, the court cannot make a contract for them. The intention of the parties may be clearly expressed in the instrument; but, if not, such intention may be gathered from the circumstances of the case. 18 Thus, where there was a guaranty of payment of the interest of a bond which did not stipulate for interest, the guarantor must have intended to be- come liable for the interest to accrue after the maturity of the bond. 10 Intention Gathered from Entire Contract. All parts of the contract must be considered in order to ar- rive at the intention of the parties. 20 Where a contract and a guaranty thereof are made at the same time, the two instru- ments must be construed together. 21 is Lewis v. Dwight, 10 Conn. 95 ; Ewen v. Wilbor, 99 111. App. 132 ; Talmadge v. Williams, 27 La. Ann. 653; Belloni v. Freeborn, 63 N. Y. 383; De Camp v. Bullard, 33 App. Div. 627, 53 N. T. Supp. 1102; Hooper v. Hooper, 81 Md. 155. 31 Atl. 508. 48 Am. St. Rep. 496 ; Bird- sail v. Heacock, 32 Ohio St. 177, 30 Am. Rep. 572; Bailey v. Larchar, 5 R. I. 530; Lawrence v. McCalmont, 2 How. (U. S.) 426, 11 L. Ed. 326. « Dustin v. Hodgen, 47 111. 125; Markland Min. & Mfg. Co. v. Kim- mel, 87 Ind. 560; Kepley v. Carter, 49 Kan. 72, 30 Pac. 182; Columbus Sewer Pipe Co. v. Ganser, 58 Mich. 385, 25 N. W. 377, 55 Am. Rep. 697; Cushing v. Cable, 48 Minn. 3, 50 N. W. 891 ; Crane Co. v. Specht, 39 Neb. 123, 57 N. W. 1015, 42 Am. St. Rep. 562; Belloni v. Freaborn, 63 N. Y. 383 ; State v. Medary, 17 Ohio, 554 ; St'aver & Walker v. Locke, 22 Or. 519, 30 Pac. 497, 17 L. R. A. 652, 29 Am. St. Rep. 621 ; Smith v. Montgomery, 3 Tex. 199 ; Miller v. Stewart, 9 Wheat. (U. S.) 680, 6 L. Ed. 189. is Standley v. Miles, 36 Miss. 434; PEOPLE v. BACKUS, 117 N. Y. 196, 22 N. E. 759; EVANS VILLE NAT. BANK v. KAUFMANN, 93 N. Y. 274, 45 Am. Rep. 204; Birdsall v. Heacock, 32 Ohio St. 177, 30 Am. Rep. 572; DAVIS v. WELLS, 104 TJ. S. 164, 26 L. Ed. 686. io Hamilton v. Van Rensselaer, 43 Barb. (N. Y.) 117. so Rouss v. Creglow, 103 Iowa, 60, 72 N. W. 429. si Bogardus v. Manufacturing Co., 120 111. App. 46; First Nat. Bank v. School Dist, (Neb. 1906) 110 N. W. 349; SMITH v. MOLLE- SON, 148 N. Y. 241, 42 N. E. 669 ; UNION BANK OF LOUISIANA v. COSTER, 3 N. Y. 203, 53 Am. Dec. 280 ; Marsh v. Chamberlain, 2 Lans. (N. Y.) 287. Where a bond is given to secure the performance § 91) RULES. 119 The most frequent application of this rule applies in the case of penal bonds, which are entered into to secure the proper performance of some act. Such a bond, if formally drawn, consists of three parts, known as the penal or obliga- tory part, the recital, and the condition. 22 The penal portion is in the form of an absolute obligation to pay a sum of money named therein, known as the penalty. The recital states the circumstances under which the bond was given; that, for il- lustration, a certain named person has been appointed to a designated office, and the facts connected therewith. The con- dition provides that the bond shall be void if the acts, to se- cure the performance of which the bond was given, have been fully and properly performed ; otherwise, to remain in full force. In construing a penal bond, all the parts must be con- sidered together, 23 and a statement in one part may be quali- fied by some clause in another part. 24 If the recital names a term for which the officer has been appointed or elected, it will be construed as being the intention of the sureties to be bound no longer than that term, although the condition may provide that the bond shall remain in force as long as the said officer shall continue in office. 26 The two clauses are not re- garded as inconsistent, but as meaning that the sureties intend to be bound so long as the officer remains in office, not ex- ceeding the term named. In other words, they will be bound for his term; but their liability might be terminated sooner, of an agreement, and the bond recites some, but not all, of the obliga- tions of the agreement, liability on the bond will be limited to the recitals contained therein ; the agreement not being incorporated in the bond by reference thereto. Oregon R. & Nav. Co. v. Swinburne, 22 Or. 574, 30 Pac. 322; Singer Mfg. Co. v. Hester (C. C.) 6 Fed. 804. 22 See forms in Appendix, post, p. 403. 23 Wilson v. "Webber, 157 N. T. 693, 51 N. E. 1094, affirming 92 Hun, 466, 36 N. Y. Supp. 550. Where the principal enters into a recogni- zance of $100, and the sureties $200, they can be held for $100 only. People v. Morrison, 75 Mich. 30, 42 N. W. 531. 24 where a bond given to secure the performance of an agent's du- ties specifies the extent of the agency, sureties will not be liable for money of the employer received by the agent outside of the particular agency specified. Napier v. Bruce, 8 Clark & F. 470. 25 Arlington v. Merricke, 2 Saund. 403; Liverpool Waterworks v. Atkinson, 6 East, 507. L20 CONSTRUCTION OF THE CONTRACT. (Ch. 4 if he should die or resign before his term ended. The length of time for which they were to be liable might be shortened, but would not be lengthened. Valid Rather Than Invalid Meaning Given. The policy of the courts is to apply such a construction as will render the contract valid, rather than otherwise, if it can do so without importing terms into the contract which do not appear. Thus, a guaranty of a note "when due" is not to be construed as impossible of fulfillment because the note was overdue at the time the guaranty was made ; but, as the par- ties knew that the day of payment was past, the guaranty was equivalent to a guaranty of a note payable on demand, and such would be taken to be the intention of the guarantor.. 26 Where a bond is so worded as to render it nearly impossible to comply with the conditions, and hold a surety thereon liable, the court will apply such a construction as will prevent the bond from becoming practically invalid. Thus, a stipulation that an employer (the obligee) must give notice to the surety of any act of the employe (the principal) for whose fidelity the bond has been given, which "may" lead to default, will be con- strued to mean that the employer need not report mere sus- picions, but he will be required to act in event only of acquir- ing knowledge of some act which might involve the surety in liability. Courts, however, will not go to the extent of importing into the contract terms which have been omitted, or alter terms, although the result is to make the obligation void. A bond without a penalty, 27 or without an obligee, will not be enforced. So, if an appeal bond recites an appellate court which has no existence, the court will not make any change. To do so would be for the court, and not the parties, to make the con- tract. 28 Where an appeal bond described land which had no 2« Crocker v. Gilbert, 9 Cush. (Mass.) 131; Gunn v. Madigan, 28 Wis. 158. A guaranty that a note, payable in the future, is due, and that the maker has nothing to file against it, will be construed to have reference to the liability of the maker at maturity. Adams v. Clarke, 14 Vt. 9. 27 Austin v. Richardson, 1 Grat (Va.) 310. Tucker v. State, 11 Md. 322. § 91) RULES. 121 existence, although it follows a description given in a mort- gage, it cannot be shown that other land was intended. 28 Language Construed Against Party Using It. The general rule of contracts, that ambiguous language will be taken most strongly against the party using it, applies to contracts of suretyship. 80 Thus, where a bond, given to secure the performance of a contract for furnishing granite for a public building, provided for monthly payments of not to ex- ceed 80 per cent, of "the estimated value of the work performed on the building," the contention was whether the "estimated value" was to be made upon the work when actually set in the building, or upon the work performed in quarrying, transport- ing, and dressing the granite, whether it actually was placed in the building or not. The obligee, having acted upon the latter interpretation, and it being reasonable, the surety was not allowed to insist upon his interpretation of the ambiguous language used by him. 31 Construction by Parties. The construction which the parties themselves have placed upon their contract should prevail, 32 even over its literal mean- ing. 33 Thus, a guaranty which, standing alone, might have been construed as noncontinuing, will be construed as con- tinuing if the parties, for some time, have acted upon it as con- tinuing. 34 By giving a contract the same construction that 2» Ogden v. Davis, 116 Cal. 32, 47 Pac. 772. so Hoey v. Jarman, 39 N. J. Law (10 Vroom) 523; Gates v. McKee, 13 N. Y. 237, 64 Am. Dec. 545; Crist v. Burlingame, 62 Barb. (N. Y.) 351; Bailey v. Larchar, 5 R. I. 530; American Surety Co. v. Trust Co. (Tex. Civ. App. 1906) 98 S. W. 387; Lawrence v. McCalmont, 2 How. (TJ. S.) 450, 11 L. Ed. 326; Cremer v. Higginson, 1 Mason (U. S.) 323, Fed. Cas. No. 3,383; Wood v. Priestner, L. R. 2 Exch, 66; Merle v. Wells, 2 Camp. 413. si SMITH v. MOLLESON, 148 N. Y. 241, 42 N. E. 669. 32 Burgess v. Badger, 124 111. 2S8, 14 N. E. 850; Dwenger v. Geary, 113 Ind. 106, 14 N. E. 903 ; Dwelley v. Dwelley, 143 Mass. 509, 10 N. E. 468; Thompson v. Prouty, 27 Vt. 14. 33 District of Columbia v. Gallaher, 124 U. S. 505, 8 Sup. Ct. 585, 3\ L. Ed. 526. 34 Michigan State Bank v. Peck, 28 Vt. (2 Williams) 200. 65 Am. Dec. 234. So an intention to make a letter of credit general will be shown by the guarantor's acts. UNION BANK OP LOUISIANA v. COSTER, 3 N. Y. 203, 53 Am. Dec. 280. 122 CONSTRUCTION OF THE CONTRACT. (Oh. 4 the parties themselves have given to it is not varying it, but is establishing the real contract. The construction given by the parties may be ascertained from their declarations, or from their conduct. Where only one of the parties has acted upon some special interpretation given by himself, it cannot affect the other. Express and Implied Terms. While a contract of suretyship will never be implied in the sense in which the word is used generally in the law of con- tracts, there are some contracts of suretyship which are so common, and the rights and liabilities under which have been so often the subject of judicial interpretation, that a person, by becoming a party to them, will be presumed to have as- sumed the liabilities incident to his contract. 36 Such is the case where the holder of a negotiable instrument places his name on the back and transfers the instrument to another. Al- though he has not made a definite contract, the law supplies the deficiency, and makes it for him, 36 and, in most juris- dictions, he will not be allowed to vary the contract implied by his indorsement in blank. 37 It always is competent for the parties to a contract of surety- ship, by express stipulations therein, to extend or restrict the rights and liabilities of a surety, and make them different from those which would be implied by law ; and, where the parties have agreed upon terms mutually satisfactory, different from those implied by law, they should be permitted to stand upon those terms, as being the real contract, rather than force upon them, by implication, a contract which they did not intend. Construction as Affected by Statutes. The general rule is that, where a contract of suretyship is entered into pursuant to a statute 38 or to a by-law, 38 the statute 36 Monson v. Drakeley, 40 Conn. 552, 16 Am. Rep. 74; Sweet v. McAllister, 4 Allen (Mass.) 353. »« See post, c. VIII, note 14. st Norton, Bills and Notes (3d Ed.) p. 114. ss People v. Toomey, 122 111. 308, 13 N. E. 521; Johnson v. Elevator Co., 105 111. 462 ; Reynolds v. Hall, 2 111. 35; County of Scott v. Ring, 29 Minn. 398, 13 N. W. 181; State, to Use of City of St. Louis, v. Thornton, 8 Mo. App. 27. 39 Danvers Farmers' Elevator Co. v. Johnson, 93 Minn. 323, 101 N. W. 492. § 91 ) RULES. 123 or by-law forms a part of his contract. If the law has made the instrument necessary, the parties are deemed to have had the law in contemplation when the contract was execut- ed.* Thus, where a law concerning the sale of school lands prescribed the form of notes to be taken for the purchase price, and made then joint and several, and provided that sure- ties thereon should be liable as the principal, a surety was held to the liability prescribed by the statute, for he was presumed to know the law. 41 So, where a statute made a public officer custodian of public moneys, sureties upon his bond will be liable for such money as comes into his hands in his official capacity only, and not for moneys of which He becomes a vol- untary custodian. Where, however, the contract is clearly inconsistent with the statute, the contract will not be construed to enlarge the liability of a surety beyond its terms. 42 Amendments to Statutes. Where a statute has been amended or repealed after a .con- tract has been executed pursuant thereto, a surety on the con- tract may incur additional liabilities, 43 or his contract may be terminated, according to the extent of the change made. Sureties upon bonds given for the faithful performance of duties by public officers are presumed to contemplate possible amendments to the statute, and impliedly to agree to remain bound. 44 Such a rule is indispensable to the proper manage- ment of public affairs ; but this implication extends to the im- position of new duties of the same general character as those imposed at the time of the execution of the bond, and come fairly within the scope of the office. 45 A surety will not be 40 Van Epps v. Walsh, 1 Woods (U. S.) 598, Fed. Cas. No. 16,850. Where, at the time of the execution of a bond, a statute has been passed, which does not take effect until later, it does not affect the liability of the parties to the bond. Mix v. Vail, 86 111. 40. 4i Powell v. Kettelle, 1 Gilman (111.) 491. 42 Howard County Com'rs v. Hill, 88 Md. Ill, 41 Atl. 61; Davis v. Van Buren, 72 N. Y. 587; Wood v. Fisk, 63 N. Y. 245, 20 Am. Rep. 528. is State v. Smith, 16 Fla. 175. See post, § 108, as to extensions of time given by Legislature to public officers. 44 Dawson v. State, 38 Ohio St. 1; Borden v. Houston, 2 Tex. 594. 4 5 Smith v. Peoria County, 59 111. 412; Governor of Illinois v. Ridg- way, 12 111. 14; Bartlett v. Governor, 2 Bibb (Ky.) 586; People v. Vila's, 36 N. X. 459, 93 Am. Dec. 520. 124 CONSTRUCTION OF THE CONTRACT. (Ch. 4 held to liability as to duties which had no statutory existence at the time of the execution of the bond, and which could not have been in contemplation at that time. 48 Thus, where it was the duty of an officer to receive public money, a new stat- ute might be enacted, which makes it his duty to receive ad- ditional funds from another source, and a surety on his bond would be liable for a default as to such additional funds ; but, where it was not the duty of a public officer to receive public funds, a statute making him the custodian of certain public money could not impose upon his surety a liability as to such money. 47 In the first case, it was not unreasonable to suppose that an officer, whose duty it is to receive money, might be made the custodian of additional sums, and his sureties, when they executed the bond, might be supposed reasonably to have had this possibility in mind; but, where the duties of an office are not connected with the receipt of money, it cannot be sup- posed that his sureties could have had in contemplation the possibility of his becoming the custodian of funds. They might be satisfied as to his ability to perform certain duties; but it would not follow that they regarded him as a trustworthy custodian of the public money. It is not the same office within the meaning of the bond. 48 Sureties Favorites of the Law. While a surety is denominated a favorite of the law, there is a very limited field for the application of this doctrine. 49 The nature of the contract invokes equitable considerations, *e People v. Pennock, 60 N. T. 421. n People v. Tompkins, 74 111. 482 ; White v. East Saginaw, 43 Mich. 567, 6 N. W. 86. is Phybus v. Gibbs, 6 E. & B. 88. Sureties on a joint bond are not affected by a subsequent statute making them severally liable. Field- en v. Lahens, 6 Blatchf. (U. S.) 524, Fed. Cas. No. 4,773. Where a treasurer held office during the pleasure of the Governor, and gave a bond conditioned for his good behavior, a subsequent statute making the office elective and the term three years discharged the sureties, although the same person was elected. They might have been willing to be bound if he could be removed at any time, but not if he was to hold office for a fixed period. Queen v. Hall, 1 Up. Can., C. P. 406. *o Ulster County Sav. Inst. v. Young, 161 N. T. 23, 55 N. E. 483. The courts are not inclined to extend the rule that a surety is a fa- vorite of the law to surety companies. Walker v. Holtzclaw, 57 S. C. 459, 35 S. E. 754. § 92) PROMISE ESSENTIAL TO A GUARANTY. 125 but the general rules for the construction of contracts are not excluded thereby. His liability will not be extended by im- plication, and his contract is strictly construed. 60 The terms of his contract cannot be varied, although he may sustain no injury thereby, or even though he might be 'benefited. 51 In cases of doubt, the doubt is solved generally in his favor. 52 Thus, where the penalty named in the obligatory part of a bail bond was $2,000, the sureties would not be liable for more, although the condition recites that the accused had been held to bail in the sum of $2,500. 63 PROMISE ESSENTIAL TO A GUARANTY. 92. To constitute a guaranty, it is essential that the language must amount to a promise. bo State v. Churchill, 48 Ark. 426, 3 S. W. 352, 830; Jack v. Sin- sheimer, 125 Cal. 563, 58 Pac. 130 ; Raney v. Baron, 1 Fla. (Branch) 327; Vinyard v. Barnes, 124 111. 346, 16 N. B. 254; Mix v. Singleton, 86 111. 194 ; Weir Plow Co. v. Walmsley, 110 Ind. 242, 11 N. E. 232 ; Noyes v. Granger, 51 Iowa, 227, 1 N. W. 519; Dry Goods Co. v. Yea- ront, 59 Kan. 684, 54 Pac. 1062 ; New Orleans Canal & Banking Co. v. Hagan, 1 La. Ann. 62; Manufacturers' Bank v. Cole, 39 Me. 188; First Nat. Bank of Baltimore v. Gerke, 68 Md. 449, 13 Atl. 358, 6 Am. St. Rep. 453; Gunn v. Geary, 44 Mich. 615, 7 N. W. 235; Bishop v. Free- man, 42 Mich. 533, 4 N. W. 290 ; Dick v. Crowder, 18 Miss. (10 Smedes & M.) 71; Blair v. Insurance Co., 10 Mo. 559, 47 Am. Dec. 129; Har- vey v. Bank, 56 Neb. 320, 76 N. W. 870; People v. Chalmers, 60 N. T. 154; Walsh v. Bailie, 10 Johns. (N. T.) 180; Lang v. Pike, 27 Ohio St. 493 ; Hutchinson v. Woodwell, 107 Pa. 509; McGongh v. Birmingham, 29 Pittsb. Leg. J. (O. S.) 178; State v. Evans, 32 Tex. 200; Coughran v. Bigelow, 9 Utah, 260, 34 Pac. 51; Burson v. Andes, 83 Va. 445, 8 S. E. 249; Leggett v. Humphreys, 21 How. (U. S.) 66, 16 L. Ed. 50; United States v. Cheeseman, 3 Sawy. (S. W.) 424, Fed. Cas. No. 14,790. On the other hand, a surety's engagement does not require a forced and unreasonable construction, with a view of relieving him. Irwin v. Kilburn, 104 Ind. 113, 3 N. E. 650. oi City Council of Greenville v. Ormand, 51 S. C. 121, 28 S. E. 147; General Navigation Co. v. Roltz, 6 C. B. (N. S.) 550. 52 Stull v. Hance, 62 111. 52 ; Shine's Adm'r v. Central Sav. Bank, 70 Mo. 524; Crist v. Burlingame, 62 Barb. (N. X.) 351; Bailey v. Larchar, 5 R. I. 530. 03 Hodges v. State, 20 Tex. 493. 20 CONSTRUCTION OF THE CONTRACT. (Ch. 4 REQUEST OB RECOMMENDATION NOT A GUARANTY. 3. A request to a person to extend credit to another is not a guaranty. Neither is a letter of recommendation. While it is not necessary, in order to constitute a guaranty, lat the words "guaranty" or "promise" be used, it is essential lat words be used which clearly import a promise. 64 A tatement that the writer "has no objection to guaranty" is ot a guaranty, but an overture only. 56 So a statement that le writer considers the bearer good, and will indorse him to certain amount, specifies the method in which the writer is r illing to become liable. 56 It does not follow, however, that le use of the future tense, as "I will guaranty," necessarily nports an offer. Where a person, in transferring the negotiable instrument of third person, uses the words, "holden," 67 "good," or safe," 58 it will amount to a guaranty. '.equests and Recommendations. It sometimes happens that a person, unacquainted with the ature of a contract of guaranty, acts upon a mere request to ;11 goods to another, or to extend credit to him, supposing that le written request renders the writer liable as a guarantor ; 5 * ut, in order to hold a person as such, it must be shown clearly lat he intended to assume thzt liability. o* A promise that the creditor will be "taken care of" is a guaranty. OVER STAMPING CO. v. NOYES, 151 Mass. 342, 24 N. E. 53. But le remark, "If W. is not good enough, I am," and the answer, "Yes, >r $10,000, if you requested it," do not create a contract. Unangst Hibler, 26 Pa. (2 Casey) 150. Whether or not the language used, nounts to a guaranty, or not, is a question of law. Ferris v. Walsh, Har. & J. (Md.) 306. ss Stafford v. Low, 16 Johns. (N. Y.) 67; Symmons v. West, 2 Star- e, 371; McIVER v. RICHARDSON, 1 Maule & S. 557. so Stockbridge v. Schoonmaker, 45 Barb. (N. Y.) 100. o' Irish v. Cutter, 31 Me. 536. 68 Union Nat. Bank v. First National Bank, 45 Ohio St. 236, 13 N. . 884; Sturges v. CIrcIeville Bank, 11 Ohio St. 153, 78 Am. Dec. 296. stipulation, in an agreement for the sale of goods, that the price lall be paid in "good obligations," does not amount to a guaranty of ie notes taken by the seller in payment, but gives the latter the ght to refuse notes which are not good. Corbet v. Evans, 25 Pa. 310. soBushnell v. Bishop Hill Colony. 28 111. 204; Thomas v. Wright, ! N. C. 272, 3 S. E. 487. S 93) REQUEST OR RECOMMENDATION NOT A GUARANTY. 127 Letters of recommendation or of introduction, or expressions of opinion or confidence as to the financial ability or reputa- tion of another, are not guaranties, and the writer incurs no liability to one acting upon them, 60 unless the writer has been guilty of deceit; and then he is liable for his tort, and not as a guarantor. A letter read as follows : "I have the pleas- ure of recommending to you my friend, James Barker, as a person in whom confidence can be placed. I am due him $400, but it is inconvenient for me to raise the money just now. Should you give him time on the machine till 1st December, it will confer a favor on me, and you may rest assured that the money will be forthcoming at the proper time." The writer ivas held not to be liable as a guarantor of the price of a ma- chine, which was sold by the addressee on the strength of this letter, as there was no. promise. 61 Guaranty of Payment or of Collection. The words, "I guaranty the wit' in note," written upon the back of a promissory note, and signed, make the writer a guar- antor, instead of an indorser, 62 or a maker; 63 and such a guaranty will be construed to be one of payment, and not of collectibility, 64 unless the language indicates otherwise. 65 eo Baker v. Trotter, 73 Ala. 277; Switzer v. Baker, 95 Gal. 539, 30 Pac. 761; Bushnell v. Bishop Hill Colony, 28 111. 204; Case v, Luse, 2S Iowa, 527; Eaton v. Mayo, 118 Mass. 141; Hughes v. Peper Co., 139 N. C. 158, 51 S. B. 793, 1 L. R. A. (N. S.) 305, 111 Am. St Rep. 778; Kimball v. Roye, 9 Rich. Law (S. C.) 295; Mitchell v. Stewart, 10 Heisk. (Tenn.) 18. In Moore v. Holt, 10 Grat. (Va.) 284, a letter of introduction, containing the clause, "With assurances that any con- tract of his will and shall be promptly paid," was held to be a guar- anty. «i Case v. Luse, 28 Iowa, 527. «2 Belcher v. Smith, 7 Cush. (Mass.) 482; Miller v. Gaston, 2 Hill (N. Y.) 188; Snevily v. Ekel, 1 Watts & S. (Pa.) 203; Central Trust Co. of New York v. Bank, 101 U. S. 68, 25 L. Ed. 876. es President of Oxford Bank v. Haynes, 8 Pick. (Mass.) 423, 19 Am. Dec. 334; National Loan & Building Ass'n v. Lichtenwalner, 100 Pa. 100, 45 Am. Rep. 359. Where the indorsement on a note was, "I hereby acknowledge to be security for the within amount of $500 un- til satisfactorily paid," the signer was held liable as a surety, and not- as a guarantor. Marberger v. Pott, 16 Pa. 9, 55 Am. Dec. 479. e* Winchell v. Doty, 15 Hun (N. Y.) 1. es A guaranty of "ultimate" or "final" payment is a guaranty of collectibility. Ely v. Bibb, 4 J. J. Marsh. (Ky.) 71; Huntress v. Pat- 128 CONSTRUCTION OF THE CONTRACT. (Ch. 4 Continuing and Noncontinuing Guaranties. One of the most perplexing questions which the courts are called upon to decide is whether a guaranty is continuing or noncontinuing ; and it seems to be impossible to formulate any rule or set of rules of construction which will aid in determin- ing this question, but resort must be had to the general rules applicable to all contracts, and each particular case must de- pend upon its own facts. Precedents are of little use in cases of this kind, but the ambiguity must be cleared by ascertaining the intention of the parties, which must be sought, not only from the instrument itself, but from the situation and relation of the parties at the time of the execution of the contract, and their course of dealing. 86 ten, 20 Me. 28 ; Lewis v. Hoblitzell, 6 Gill & J. (Md.) 259; Hernandez v. Still well, 7 Daly (N. T.) 360; Bank of Sandusky v. Follett, 2 West. Law J. (Ohio) 78 ; Johnston v. Mills, 25 Tex. 704. So is a guaranty that a note is "good." Cowles v. Pick, 55 Conn. 251, 10 Atl. 569, 3 Am. St. Rep. 44; Curtis v. Smallman, 14 Wend. (N. T.) 231; Cooke v. Na- than, 16 Barb. (N. Y.) 342; Union Nat. Bank v. First Nat. Bank, 45 Ohio St. 236, 13 N. E. 884 ; Hammond v. Chamberlin, 26 Vt. 406. In the following cases, the expressions used were held to be guaranties of collectibility: "To be liable only in second instance." Pittman v. Chisolm, 43 Ga. 442. "To pay any deficiency." McMURBAY v. NOYES, 72 N. Y. 523, 28 Am. Rep. 180. "In case he fails to recover." Jones v. Ashford, 79 N. C. 172. "If bearer fails to collect, to be re- sponsible " Evans v. Bell, 45 Tex. 553. "If creditor will endeavor to collect." Phenix Ins. Co. v. Louisville Co. (C. C.) 8 Fed. 142. In Tay- lor v. Soper, 53 Mich. 96, 18 N. W. 570, and Kock v. Melhorn, 25 Pa. 89, 64 Am. Dec. 685, expressions to the effect that a note was as "good" as money were held to be guaranties of payment ; but a guar- anty that the maker is "good and solvent" is one of collectibility. Kinyon v. Brock, 72 N. C. 554. In Pennsylvania, guaranties of pay- ment are regarded generally as guaranties of collectibility. See Tis- sue v. Hanna, 158 Pa. 384, 27 Atl. 1104. 6 6 White's Bank of Buffalo v. Myles, '73 N. Y. 335, 29 Am. Rep. 157. And see ante, note 16. In the following cases the guaranties were held to be continuing: Cahuzac v. Samini, 29 Ala. 288; Lewis v. Dwight, 10 Conn. 95; Trustees of Presbyterian Board of Publication & Sabbath-School Work v. Gilliford, 139 Ind. 524, 38 N. E. 404; Clark v. Hyman, 55 Iowa, 14, 7 N. W. 386, 39 Am. Rep. 160; Lowe v. Beck- with, 53 Ky. (14 B. Mon.) 184, 58 Am. Dec. 659; Grant v. Ridsdale, 2 Har. & J. (Md.) 186; Melendy v. Capen, 120 Mass. 222; Mathews v. Phelps, 61 Mich. 327, 28 N. W. 108, 1 Am. St. Rep. 581; Tootle v. El- gutter, 14 Neb. 158, 15 N. W. 228, 45 Am. Rep. 103; People v. Lee, 104 N. Y. 441, 10 N. E. 884 ; City Nat. Bank of Poughkeepsie v. Phelps, 86 § 93) REQUEST OR RECOMMENDATION NOT A GUARANTY. 129 To illustrate the different conclusions reached as to guaran- ties worded very similarly, take the two following: "Please let my daughter have what goods she wants, and I will stand good for the money to settle the bills." 87 And : "If you will let the bearer have what leather he wants, and charge the same to himself, I will see that you have your pay in a reasonable length of time." es It would seem that they were either both continuing or both limited; but the former was held to be continuing, and the latter limited. 69 While it is clear that, if the object is to give a standing credit to the principal to be used from time to time, the guar- anty is continuing, 70 it is not so easy to determine whether its object is to give a succession of credits. Limitation as to Amount. The uncertainty is still further complicated where the guar- anty names an amount for which the guarantor will be liable. N. Y. 484, affirming, as to this point, 16 Hun, 158; Straus v. Beards- ley, 79 N. C. 59; Wolf v. Shillito, 9 Ohio Dec. 273, 12 Wkly. Law Bui. 31; Gardner v. Watson, 76 Tex. 25, 13 S. W. 39; Michigan State Bank v. Peck, 28 Vt. (2 Williams) 200, 65 Am. Dec. 234; Young v. Brown, 53 Wis. 333, 10 N. W. 394; Lawrence v. McCalmont, 43 IT. S. (2 How.) 426, 11 L. Ed. 326; Hargreave v. Smee, 6 Bing. 244, 3 Moore & P. 573; Martin v. Wright, 6 Ad. & El. (N. S.) 917. In the fol- lowing cases the guaranties were held to be noncontinuing: Perryman v. McCall, 66 Ala. 402, 41 Am. Rep. 752; Patterson v. Gage, 11 Colo. 50, 16 Pac. 560; White v. Reed, 15 Conn. 457; Williams v. Wyatt, 7 Ky. Law Rep. 444; Gerson v. Hamilton, 30 La. Ann. 737; Knowlton v. Hersey, 76 Me. 345; Callender, McAuslan & Troup Co. v. Flint, 187 Mass. 104, 72 N. E. 345; Twohy v. McMurran, 57 Minn. 242, 59 N. W. 301 ; SMITH v. VAN WYCK, 40 Mo. App. 522 ; Schwartz v. Hyman, 107 N. Y. 562, 14 N. E. 447 ; Whitney v. Groot, 24 Wend. 82 ; Hayden v. Crane,J. Lans. (N. Y.) 181 ; Morgan'v. Boyer, 39 Ohio St. 324, 48 Am. Rep. 454; Birdsall v. Heacock, 32 Ohio St. 177, 30 Am. Rep. 572; Anderson v. Blakely, 2 Watts & S. (Pa.) 237; Congdon v. Read, 7 R. I. 576 ; Frost v. Weathersbee, 23 S. C. 354; Hilliard v. Hons, 37 Tex. 717; Nicholson v. Paget, 1 Cromp. & M. 48. And see 25 Cent. Dig. col. 103. er Wright v. Griffith, 121 Ind. 478, 23 N. E. 281, 6 L. R. A. 639. os'Gard v. Stevens, 12 Mich. 292, 86 Am. Dec. 52. es See Stearns, Law of Suretyship, p. 70. to Hotchkiss v. Barnes, 34 Conn. 27, 91 Am. Dec. 713; Reed v. Fish, 59 Me. 358; Boston & S. Glass Co. v. Moore, 119 Mass. 435; Anderson v. Blakely, 2 Watts & S. (Pa.) 237; Congdon v. Read, 7 R. I. 576; Boyce v. Ewart, 1 Rice (S. C.) 126. Childs' Suretyship— 9 L30 CONSTRUCTION OF THE CONTRACT. (Ch. 4 Does he mean that he will be liable for one transaction not to exceed that amount? or that he will be liable for continued dealing until the total amount of all the transactions should reach the amount named, and no further? or does he intend to be liable for an indefinite time, and to be responsible for all transactions so long as the unpaid balance due from the prin- cipal shall not exceed the sum named? .A., a country merchant, goes to the city to buy goods, and he offers to his creditor a guaranty which reads as follows: "I guaranty the payment of goods which you may sell to A., not exceeding $1,000." This is capable of three constructions, and none of them will be strained. Suppose A. to buy, at the time he presents the guaranty, $500 worth of goods. At another time he buys an- other $500 worth. Later he pays $500 on account, and buys additional goods to the amount of $500, and makes no further payments. Demand is made of the guarantor for the $1,000 due. The latter might say that his intention was to become responsible for whatever goods were purchased the first time only, not exceeding $1,000, and that, upon learning that $500 worth only had been purchased at that time, which subsequent- ly had been paid for, he had taken no steps to protect himself ; or he might say that he was willing to become responsible for $1,000 worth of goods, whether purchased at one or more times, but that, $500 having been paid, he was liable for $500 r.ilv. 71 The creditor might claim that the meaning of the con- tract was that the guarantor would be liable for all goods sold at all times, provided the balance remaining unpaid did not exceed $1,000. 72 The first of the three constructions — that 'I Cremer v. Higginson, 1 Mason (U. S.) 323, Fed. Cas. No. 3,383; GRAY v. SECKHAM, H-872] 7 Ch. App. 680; Kay v. Groves, 6 Bing. 276, 3 Moore & P. 634; Kirby v. Marlborough, 2 Maule & S. 18. 72 Taussig v. Reid, 145 111. 488, 30 N. E. 1032, 32 N. E. 918, 36 Am. St. Rep. 504; SHERBURNE v. PAPER CO., 40 111. App. 383; Lane v. Mayer, 15 Ind. App. 382, 44 N. E. 73; Sherman v. Mulloy, 174 Mass. 41. 54 N. E. 345, 75 Am. St. Rep. 286 ; Melendy v. Capen, 120 Mass. 222; Hatch v. Hobbs, 12 Gray (Mass.) 447; Bent v. Hartshorn, 1 Mete. (Mass.) 24; Crittenden v. Piske, 46 Mich. 70, 8 N. W. 714, 41 Am. Rep. 146; HENRY McSHANE CO. v. PADIAN, 142 N. Y. 207, 36 N. E. 880; Rindge v. Judson, 24 N> Y. 64; Gates v. McKee, 13 N. Y. 232, 64 Am. Dec. 545; Crist v. Burlingame, 62 Barb. (N. Y.) 351; Lemp v. Ar- mengol, 86 Tex. 690, 26 S. W. 941 ; Douglass v. Reynolds, 7 Pet. [V. § 94) CONFLICT OF LAWS. 131 it was limited to one transaction — while it might have been in the mind of the writer, might be considered too narrow; but the decisions are not uniform as to the second and third ■ constructions. If, in addition to a limit in value, there be a limit in time, probably the last construction — that the guaranty was intended to cover any unpaid balance, not exceeding the amount named — would prevail. 73 CONFLICT OF LAWS. 94. A contract is construed according to the lair of the place where it is to be performed. The general rule is that contracts are to be construed ac- cording to the law of the place of performance, 74 which is, usually, the place of making; 75 but if a guaranty be written in one state, addressed to another, it will be construed accord- ing to the law of the latter, 76 as it is accepted there, 77 and, until acceptance, the contract is not effective. 78 S.) 113, 8 L,. Ed. 626. In Pratt v. Matthews, 24 Hun (N. X.) 386, the payment of coal was guarantied, provided the amount in default should not exceed the sum of $1,000 at any time. It was held that this provision limited the amount of the guarantor's liability, and was not a condition that the indebtedness should not exceed the amount named. 7 8 First Nat. Bank of Helena v. Waddell, 74 Ark. 241, 85 S. W. 417 (1905); Hatch v. Hobbs, 12 Gray (Mass.) 447. In Bank of St. Albans v. Smith, 30 Vt. 148, the principal gave his creditor a note with a surety, due in 10 days, to secure sums already borrowed, as well as future advances. Held, that the security was not continuing, and the surety was not liable for advances made after the maturity of the note. See, also, President of Agawam Bank v. Strever, 16 Barb. (N. T.) 82. 7* Cowles v. Townsend, 37 Ala. 77; Laehman v. Block, 47 La. Ann. 505, 17 South. 153, 28 L. R. A. 255. 7 5 Howard v. Fletcher, 59 N. H. 151. '8 Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241; Richardson v. Draper, 23 Hun (N. Y.) 18S; Bell v. Bruen, 42 U. S. (1 How.) 169, 11 L. Ed. 89. " Callender, McAuslan &. Troup Co. v. Flint, 187 Mass. 104, 72 N. E. 345. '8 gee ante, § 36. L32 CREDITOR AND SDRBTT. (Ch.5 CHAPTER V. UGHTS AND LIABILITIES AS BETWEEN THE CREDITOR AND THE SURETY. 95-97. Surety's Liability to Creditor. 98-100. Surety's Right to Notice. 101. Surety's Rights After Judgment 02-104. Surety's Rights as Affected by Creditor's Ignorance of the Relation. 105. Surety Remains Liable by Consenting to Subsequent ings between Principal and Creditor. 106. Discharge of the Contract — In General. 107. By Alteration. 108. By an Extension of Time. 09-110. Termination of Liability by Expiration of Time. .11-112. Surety's Right to Terminate Contract. .13-115. Successive Bonds. 116. Surety's. Liability Terminated by Default of Principal. .17-121. Termination of Liability by Change in Number of Parties or by Death. 122. Discharge of Surety by Performance. 123. Performance Prevented by Creditor or Obligee. 124. Beginning of Surety's Liability. 125. Compliance with Conditions. 126. Guaranties of Collection. 127. Surety Discharged by Relinquishment or Loss of Security. 128. Surety's Liability as Affected by Liability of Principal. 129. Surety's Liability as Affected by Destruction of Property. 50-131. Personal Defenses. 132. Discharge by Payment, Tender, Release, or Failure of Consideration. 133. Discharge by Duress, Fraud, or Illegality in the Principal's Contract. 134. Waiver of Defenses. 135. To Whom Surety is Liable. L36-141. Estoppel of Surety. 142. Surety Discharged by Creditor's Promise to Resort to Prin- cipal. 143. Surety Discharged by Information that Debt is Paid. L44-147. Amount for which Surety Liable. 148. Surety's Right to Assert Counterclaims. L49-150. Action Against Surety. 151-152. Subrogation. §§ 95-99) EXCEPTIONS. 133 SURETY LIABLE AS PRINCIPAL. 95. A surety, -whether jointly bound op not, is liable to the creditor or obligee to an extent similar to that of the principal. CREDITOR NOT REQUIRED TO PROCEED FIRST AGAINST PRINCIPAL. 96. The creditor, before proceeding against the surety, is not required to proceed against the principal; nor to re- sort to any security for the debt which he may hold. CHANCERY MAY COMPEL CREDITOR TO RESORT FIRST TO PRINCIPAL. 97. In certain cases a court of equity will compel the creditor to resort first to the principal. LIABILITY OF SURETY NOT AFFECTED BY LACK OF NO- TICE OR OF DEMAND NOR BY DELAY. 98. A surety generally is not entitled to notice of default, nor to demand for performance; nor is his liability generally affected by any delay on the part of the creditor or obligee. EXCEPTIONS. 99. The above rules do not apply— (a) If there is a provision to the contrary— (1) In the contract itself, express or implied. (2) In a statute. (b) In a guaranty, where the extent of the liability of the guarantor depends upon the option of the creditor, and the facts are within his knowledge, the guarantor is entitled to reasonable notice of the amount of his liability, and of the default of the principal, unless he has waived notice, or injury has not resulted from lack thereof. 134 CREDITOR AND SURETY. (Ch. 5 FORM OF NOTICE WHEN REQUIRED. 100. Where notice to a surety is requisite, it need not be given in any particular form, It is purposed, in this chapter, to treat of the respective rights and liabilities of the surety and of the creditor or obli- gee. Their rights and liabilities, as to each other, are not affect- ed by the fact that the surety has received compensation for entering into his contract, and has made a business of enter- ing into such contracts, though in such cases the surety usu- ally takes the precaution to enlarge his rights and restrict his liabilities by express terms in the contract. 1 The general rule is that the liability of a surety is measured by that of the principal ; 2 though, as has been shown, a sure- ty, when entering into the contract, may assume expressly a less or even a greater liability. 3 Creditor Not Required to Proceed against Principal. Upon default in the performance of the contract, the cred- itor or obligee is at liberty to ignore the principal entirely, and to proceed at once against the surety.* The surety should i Stearns, Law of Suretyship, p. 447. 2 Crane v. Andrews, 10 Colo. 265, 15 Pac. 331; Gage v. Lewis, 68 111. 604; Goltra v. People, 53 111. 224; People v. Morrison, 75 Mich. 30, 42 N. W. 531; State, to Use of Betts, v. Purdy, 67 Mo. 89; Judge of Probate v. Sulloway, 68 N. H. 511, 44 Atl. 720, 49 L. R. A. 347, 73 Am. St. Rep. 619; Winchell v. Doty, 15 Hun. (N. T.) 1; St. Albans Bank v. Dillon, 30 Vt. 122, 73 Am. Dec. 295. s Smith v. Rogers, 14 Ind. 224. See ante, § 48. * Hunt v. Burton, 18 Ark. 188; Nickerson v. Chatterton, 7 Cal. 568; Governor, to Use of Hannah, v. Perkins, 2 Bibb (Ky.) 395; Levy -i v. Cohen, 103 App. Div. 195, 92 N. Y. Supp. 1074, reversing 45 Misc. Rep. 95, 91 N. Y. Supp. 594; Cowan v. Roberts, 134 N. C. 415, 46 S. E. 979, 65 L. R. A. 729, 101 Am. St. Rep. 845; CAMPBELL v. SHERMAN, 151 Pa. 70, 25 Atl. 35, 31 Am. St. Rep. 735; Roberts v. Riddle, 79 Pa. 468; Day v. Elmore, 4 Wis. 190. Likewise, the creditor may proceed at once against a supplemental surety. CHES- TER v. BRODERICK, 131 N. Y. 549, 30 N. E. 507. Or against a guarantor. Donley v. Camp, 22 Ala. 659, 58 Am. Dec. 274; London, Paris, & American Bank v. Smith, 101 Cal. 415, 35 Pac. 1027; Penny v. Crane Co., 80 111. 244; Rich v. Hathaway, 18 111. 548; Jain v. Giffln, 3 Colo. App. 90, 32 Pac. 80; Manry v. Wexelbaum, 108 Ga. 14, 33 § 100) FORM OF NOTICE WHEN REQUIRED. 135 pay the debt, and then, as will be seen in a subsequent chap- ter, he will have a right to proceed against the principal. 6 If the liability of the principal and surety to the creditor be joint, but not several, the creditor should join them in one action; but, if their liability be joint and several, the credit- or may proceed against the surety alone, 6 or, if there be two or more sureties, either of the sureties may be proceeded against, 7 leaving him to adjust his rights afterwards by con- tribution from his co-sureties. 8 If the liability of the principal and surety is not joint, as in the case of a guarantor, the fact that the creditor has re- sorted in the first instance to the principal does not interfere S. E. 701; Taylor v. Taylor, 64 Ind. 356; German Sav. Bank v. Drake (Iowa) 79 N. W. 121; Louisiana & W. R. Co. v. Dillard, 51 La. Ann. 1484, 26 South. 451; Prentiss v. Garland, 64 Me. 155; Roberts v. Hawkins, 70 Mich. 566, 38 N. W. 575; Inkster v. First. Nat. Bank, 30 Mich. 143; Osborne & Co. v. Gullikson, 64 Minn. 218, 66 N. W. 965; Flentham v. Steward, 45 Neb. 640, 63 N. W. 924; Allen v. Bantel, 2 Thomp. & C. (N. Y.) 342 ; Loos v. McCormack, 93 N. Y. Supp. 1088, 46 Misc. Rep. 144; Clay v. Edgerton, 19 Ohio St. 549, 2 Am. Rep. 422; Klein v. Kern, 94 Tenn. (10 Pickle) 34, 28 S. W. 295; McCormick Harvesting Mach. Co. v. Millett (Tex. Civ. App.) 29 S. W. 80; Woodstock Bank v. Downer, 27 Vt. 539. The creditor is not obliged first to present his claim against a deceased prin- cipal's estate. Chaffee v. Hooper, 54 Vt. 513. In Pennsylvania the creditor must proceed against the principal before resorting to a guarantor of payment, the same as against a guarantor of collec- tion. Mcintosh-Huntington Co. v. Reed (C. C.) 89 Fed. 464. See post, § 126. o See post, § 154. o Brooks v. Carter, 36 Ala. 682; Berg v. Radcliff, 6 Johns. Ch. (N. Y.) 302; Domestic Sewing Mach. Co. v. Say lor, 86 Pa. 287; Lown- des v. Pinckney, 2 Strob. Bq. (S. C.) 44. 7 Wheeler v. Rohrer, 21 Ind. App. 477, 52 N. E. 780. If there are two or more bonds, the obligee can resort to the sureties on either (Pinkstaff v. People, 59 111. 148; Smith v. Whitten, 117 N. C. 389, 23 S. E. 320); and if the sureties on one bond limit the amount of their respective liabilities, each can be held singly up to the amount for which he is individually liable. ELLIS v. EMANUEL, 1 Exch. 157. In Louisiana, under the Code, the creditor must reduce his de- mand to the share of each surety. John M. Parker & Co. v. Guillot, (La. 1907) 42 South. 782. s See post, § 163. 136 CREDITOR AND SURETY. (Ch. 5 with his remedy against the guarantor ; ° the creditor, of course, being entitled to but one satisfaction of his claim. 10 The right of the creditor to resort to the surety withoiu first seeking to enforce his claim against the principal is not affected by the fact that it may interfere with other creditors of the surety. 11 If such other creditors wish to avail them- selves of the liability of the principal, . let them garnish the principal for the amount he is owing his surety after the lat- ter has been compelled to pay the debt. Creditor Not Required to Resort to Security. The right of a creditor to resort first to the surety is not affected by the fact that the principal has given the former in- demnity for the debt, 12 such as a mortgage, 13 or pledge; 14 » Towns v. Hicks, 6 Ga. 239; State ex rel. Griswold v. Roberts, 40 Ind. 451; Sanders v. Forgasson, 62 Tenn. (3 Baxt.) 249; Tuton v. Thayer, 47 How. Prac. (N. Y.) 180. 10 Garey v. Hignutt, 32 Md. 552; Muscatine v. Mississippi Co., 1 Dill. (U. S.) 536, Fed. Cas. No. 0,971. n Webber v. Webber, 109 Mich. 147, 66 N. W. 960. 12 Penny v. Crane Co., 80 111. 244; Trustees of the Presbyterian Board of Publication and Sabbath-School Work v. Gilliford, 139 Ind. 524, 38 N. E. 404 ; Brengle v. Bushey, 40 Md. 141, 17 Am. Bep. 586; Allen v. Woodard, 125 Mass. 400, 28 Am. Rep. 250; Sigourney v. Wetherell, 47 Mass. (6 Mete.) 553; Wade v. Staunton, 5 How. (Miss.) 631; Queens County Bank v. Leavitt, 56 Hun, 647, 10 N. Y. Supp. 194; First Nat Bank of Buffalo v. Wood, 71 N. Y. 405, 27 Am. Rep. 66 ; Stone v. Rockefeller, 29 Ohio St. 625 ; Bge v. Bar- nitz, 8 Pa. 304; Thurston v. James, 6 R. I. 103; Miller v. Knight, 66 Tenn. (7 Baxt.) 127; Cruger v. Burke, 11 Tex. 694; Austin v. Curits, 31 Vt. 64; Morley v. Inglis, 4 Bing. N. C. 58, 5 Scott, 314: 25 Cent. Dig. col. 195., Nor is the creditor obliged to enforce se- curity although requested to do so. • Haden v. Brown, 18 Ala. 641. Sometimes, by statute, the creditor must resort first to security. Philadelphia & R. R. Co. v. Little, 41 N. J. Eq. 519, 7 Atl. 356. It Is no defense to a surety that a co-surety has been indemnified by the principal. Glasscock v. Hamilton, 62 Tex. 143. is Maledon v. Leflore, 62 Ark. 387, 35 S. W. 1102; Jones v. Tincher, ' 15 Ind. 308, 77 Am. Dec. 92; Webber v. Webber, 109 Mich. 147, 66 N. W. 960. 1* The creditor is not obliged to resort to a pledge in Ms hands, although delay may result in a depreciation thereof. Freehold Nat Banking Co. v. Brick, 37 N. J. Law, 307; Campbell v. Macomb, 4 Johns. Ch. (N. Y.) 534; Cherry v. Miller, 7 Lea. (Tenn.) 305. § 100) FORM OF NOTICE WHEN REQUIRED. 137 or that the creditor holds a lien 1B upon the property of the principal. 16 The creditor is required to resort no more to the property of. the principal than to the principal himself. If the surety desires the enforcement of such collateral se- ! curity, let him pay the debt, and then he will be subrogated to such securities, and can enforce them. 17 Exoneration in Equity. Equity will interpose, for good cause shown, and compel the creditor to have recourse on the principal, 18 or to prop- erty of the principal in the creditor's hands, 19 or in the hands is Kindt, Appeal of, 102 Pa. 441. i» A surety for a lessee cannot compel the lessor to distrain. Brooks v. Carter, 36 Ala. 682; Hall v. Hoxsey, 84 111. 616. Nor to pursue collateral remedies. Brown v. Brown, 17 Ind. 475. Some- times, by statute, the creditor is obliged to levy upon the property of the principal first. Knode v. Baldridge, 73 Ind. 54; Johnson v. Harris, 69 Ind. 305; Folger v. Palmer, 35 La. Ann. 814; Lee v. Griffin, 31 Miss. 632. " Osborne v. Smith (C. C.) 18 Fed. 126. See post, § 151. is Miller v. Stout, 5 Del. Oh. 259; Hayden v. Thrasher, 18 Fla. 795; Macfie v. Kilanea, 6 Haw. 440; Street v. Chicago Co., 157 111. 605, 41 N. B. 1108; Keach v. Hamilton, 84 111. App. 413; Hoppes v. Hoppes, 123 Ind. 397, 24 N. E. 139; City of Keokuk v. Love, 31 Iowa, 119; Meador v. Meador, 88 Ky. 217, 10 S. W. 651; Philadelphia & R. R. Co. v. Little, 41 N. J. Bq. 519, 7 Atl. 356; MARSH v. PIKE, 10 Paige (N. Y.) 595; King v. Baldwin, 17 Johns. (N. Y.) 384, 8 Am. Dec. 415; Thigpen v. Price, 62 N. C. 146; Hale v. Wetmore, 4 Ohio St. 600; Beaver v. Beaver, 23 Pa. 167; Norton v. Reid, 11 S. C. 593; Bishop v. Day, 13 Vt. 81, 37 Am. Dec. 582; Neal v. Buffington, 42 W. Va. 327, 26 S. E. 172; DOBIE v. FIDELITY CO., 95 Wis. 540, 70 N. W. 482, 60 Am. St Rep. 135; Wooldridge v. Norris, L. R., 6 Eq. 410. See, also, BEARDMORE v. CRUTTENDEN, Cooke, Bankr. Laws (8th Ed.) 232. After the death of the principal, the surety has the same right in regard to the executor of the principal. Ste- phenson v. Taverners, 9 Grat. (Va.) 398. is Kidd v. Hurley, 54 N. J. Bq. 177, 33 Atl. 1057; HAYS v. WARD, 4 Johns. Ch. (N. Y.) 123, 8 Am. Dec. 554; Wright v. Austin, 56 Barb. (N. Y.) 13. So the creditor may be compelled to enforce a lien. Polk v. Gallant, 22 N. C. 395, 34 Am. Dec. 410; Henry v. Compton, 2 Head (Tenn.) 549. A creditor will not be compelled to resort to collateral security, unless it is as available as a proceeding against the surety would be. Gary v. Cannon, 38 N. C. 64. 138 CREDITOR AND SURETY. (Ch. 5 of third persons, 20 , before resorting to the surety, 21 or to the property of the latter, 22 it being unreasonable that a man should have such a cloud always hanging over him ; * but this action is limited, generally, to cases where the in- strument discloses the relation, 23 and where it works no hard- ship upon the creditor, and would work a hardship upon the surety if the creditor were to proceed directly against the surety. To such suits the principal and creditor are made parties; and the surety must agree to indemnify the creditor against loss, 2i and offer to pay whatever the principal may- fail to pay. 25 Surety Not Entitled to Notice of Principal's Default. As a general rule, a surety is not entitled to any notice of default of the principal, 26 for a default by the principal is 20 Anderson v. Walton, 35 Ga. 202; Daniel v. Joyner, 38 N. C. 513; McConnell v. Scott, 15 Ohio, 401, 45 Am. Dec. 583. So the creditor may be compelled to enforce a lien held by a co-surety. West v. Belches, 5 Munf. (Va.) 187. 2i Fetter, Eq. p. 253. 22HOPPES v. HOPPES, 123 Ind. 397, 24 N. E. 139; Colgrove v. Tallman, 67 N. Y. 95, 23 Am. Kep. 90; Vartie v. Underwood, 18 Barb. (N. X.) 561; James v. Jacques, 26 Tex. 320, 82 Am. Dec. 613. * RANELAUGH v. HAYES, 1 Vern. 189. 23 A retired partner may compel the continuing partners, who have assumed the debt, to pay it. West v. Chasten, 12 Fla. 315. 2* Rice v. Downing, 12 B. Mon. (Ky.) 44; Whitridge v. Durkee, 2 Md. Ch. 442; Huey v. Pinney, 5 Minn. 310 (Gil. 246); Thompson v. Taylor, 72 N. Y. 32; HAYS v. WARD, 4 Johns. Ch. (N. Y.) 123, 8 Am. Dec. 554; Gilliam v. Esselman, 5 Sneed (Tenn.) 86; Hogaboom v. Herl-ick, 4 Vt. 131; Kent v. Matthews, 12 Leigh (Va.) 573. 2 5 in re Babcock, 3 Story (U. S.) 393, Fed. Cas. No. 696. 28 First Nat. Bank of San Diego v. Babcock, 94 Cal. 96, 29 Pac. 415, 28 Am. St. Rep. 94; Boyd v. Agricultural Ins. Co., 20 Colo. App. 28, 75 Pac. 986; Gage v. Lewis, 68 111. 604; Kirby v. Studebaker, 15 Ind. 45; Peck v. Frink, 10 Iowa, 193, 74 Am. Dec. 384; Dougherty v. Peters, 2 Rob. (La.) 534; Read v. Cutts, 7 Greenl. (Me.) 186, 22 Am. Dec. 184; Hudson v. Miles, 185 Mass. 582, 71 N. E. 63, 102 Am. St. Rep. 370; WATERTOWN FIRE INS. CO. v. SIMMONS, 131 Mass. 85, 41 Am. Rep. 196; Welch v. Walsh, 177 Mass. 555, 59 N. E. 440, 52 L. R. A. 782; Protection Ins. Co. v. Davis, 5 Allen (Mass.) 54; Pleasantville Mut. Loan & Building Society v. Moore, (N. J. Err. & App. 1904) 57 Atl. 1034; CASS v. SHEWMAN, 61 Hun, 472, 16 N. Y. Supp. 236; Manufacturers' & Merchants' Bank v. Follett, 11 § 100) FORM OF NOTICE WHEN REQUIRED. 139 a default by the surety, and he has no right to throw the bur- den upon the creditor or obligee, to inform him of his own de- faults. If the liability is upon a sum of money due at a cer- tain time, he knows when that time arrives as well as the creditor does; and this is particularly so if he is a surety in the narrower sense — jointly liable with the principal. If the surety has become responsible for the proper performance of duties by his principal, he must ascertain whether the prin- cipal is performing such duties properly. 27 The surety has R. I. 92, 23 Am. Rep. 418; Dallas Homestead & Loan Ass'n v. Thomas, 36 Tex. Civ. App. 268, 81 S. W. 1041; Ford v. Mitchell, 15 "Wis. 304. A guarantor is not entitled to notice of default. Donley v. Camp, 22 Ala. 659, 58 Am. Dec. 274; Lane v. Levillian, 4 Ark. (4 Pike) 76, 37 Am. Dec. 769; First Nat. Bank of San Diego v. Bab- cock, 94 Cal. 96, 29 Pac. 415, 28 Am. St. Rep. 94; Tyler v. Wadding- ham, 58 Conn. 375, 20 Atl. 335, 8 L. R. A. 657; Gammell v. Parra- more, 58 Ga. 54; Taussig t. Reid, 145 111. 488, 32 N. B. 918, 36 Am. St. Rep. 504; Voltz v. Harris, 40 III. 155; Nading v. McGregor, 121 Ind. 465, 23 N. E. 283. 6 L. R. A. 686; Levi v. Mendell, 1 Duv. (Ky.) 77; Gasquet v. Thorn, 14 La. 506; ROBERTS v. HAWKINS, 70 Mich. 566, 38 N. W. 575; HUNGERFORD v. O'BRIEN, 37 Minn. 306, 34 N. W. 161; Baker v. Kelly, 41 Miss. 696, 93 Am. Dec. 274; Barker v. Scudder, 56 Mo. 272; Flentham v. Steward, 45 Neb. 640, 63 N. W. 924; Bank of Newbury v. Sinclair, 60 N. H. 100, 49 Am. Rep. 307; Sibley's Ex'rs v. Stull, 15 N. J. Law (3 J. S. Green) 332; Brown v. Curtiss, 2 N. Y. 225; Bartholomew v. Seaman, 25 Hun (N. Y.) 619; Castle v. Rickly, 44 Ohio St. 490, 9 N. E. 136, 58 Am. Rep. 839; Weiler v. Henarie, 15 Or. 28, 13 Pac. 614; Ruberg v. Brown, 71 S. C. 287, 51 S. E. 96; Hunter v. Dickinson, 29 Tenn. (10 Humph.) 37; Woodstock Bank v. Downer, 27 Vt. 539, 65 Am. Dec. 210; Austin v. Richardson, 3 Call. (Va.) 201, 2 Am. Dec. 543; Hoover v. McCor- mick, 84 Wis. 215, 54 N. W. 505; BROOKBANK v. TAYLOR, Cro. Jac. 685. See ante, §§ 13, 14. As the payee of a note is not bound to notify a surety thereon of the default of the principal, an agree- ment with the latter not to notify the surety will not be such fraudu- lent concealment as will discharge the surety. Grover v. Hoppock, 26 N. J. Law (2 Dutch.) 191. In some jurisdictions, delay by the creditor in notifying the guarantor of the default of the principal will discharge the guarantor to the extent of the damage due to such delay. Martyn v. Lamar, 75 Iowa, 235, 39 N. W. 285; Picket v. Hawes, 14 Iowa, 460; Withers v. Berry, 25 Kan. 373; Globe Bank v. Small, 25 Me. 366; Talbot v. Gay, 18 Pick. (Mass.) 534; Farrow v. Respess, 33 N. C. 170. " Pickering v. Day, 3 Houst. (Del.) 474, 95 Am. Dec. 291; Tapley v. Martin, 116 Mass. 275. 140 CREDITOR AND SURETY. (Ch. 5 undertaken to perform a contract, and must perform it. 28 It is true that in many cases the creditor or obligee is in a better position to know of the defaults of the principal than the surety is; but that does not affect the rule. Surety Not Entitled to Demand. Likewise, demand need not be made upon the principal; 2 * nor upon a surety if no demand upon the principal be neces- sary. 30 The bringing of the suit is a sufficient demand. 31 / Nor is the guarantor of a note entitled to have demand made of the principal. 82 Surety Not Discharged by Delay. A surety cannot set up the delay of the creditor or obligee to seek enforcement of his claim as a defense when the cred- os Bulkley v. Finch, 37 Conn. 71. 2» Coburn v. Brooks, 78 Cal. 443, 21 Pac. 2; Bolles v. Bird, 12 Colo. App. 78, 54 Pac. 403; Higgins v. State, 87 Ind. 282; Fowler v. Gordon, 5 Ky. Law Rep. 332; County of Redwood v. Tower, 28 Minn. 45, 8 N. W. 907; Nelson v. Donovan, 16 Mont. 85, 40 Pac. 72; Bell v. Walker, 54 Neb. 222, 74 N. W. 617; Rosendorf v. Mandel, 18 Nev. 129, 1 Pac. 672; Teel v. Tice, 14 N. J. Law, 444. so Hough v. iEtna Ins. Co., 57 111. 318, 11 Am. Rep. 18; Grocers' Bank, President, Directors, etc., v. Kingman, 16 Gray (Mass.) 473. See ante, § 13. 3i Mitchell v. Williamson, 6 Md. 210; Carr v. Card, 34 Mo. 513. 82 Lane v. Levillian, 4 Ark. (4 Pike) 76, 37 Am. Dec. 769; First Nat. Bank of San Diego v. Babcock, 94 Cal. 96, 29 Pac. 415, 28 Am. St. Rep. 94; City Sav. Bank v. Hopson, 53 Conn. 453, 5 Atl. 601; Gage v. Mechanics' Nat. Bank, 79 111. 62; Taylor v. Taylor, 64 Ind. 356; Peck v. Frink, 10 Iowa, 193, 74 Am. Dec. 384; Lowe v. Beck- with, 53 Ky. (14 B. Mon.) 184, 58 Am. Dec. 659; Read v. Cutts, 7 Me. (7 Greenl.) 186, 22 Am. Dec. 184; Parkman v. Brewster, 81 Mass. (15 Gray) 271; Baker v. Kelly, 41 Miss. 696, 93 Am. Dec. 274; Wright v. Dyer, 48 Mo. 525; Bloom v. Warder, 13 Neb. 476, 14 N. W. 395; Quillen v. Quigley, 14 Nev. 215; Bank of Newbury v. Sinclair, 60 N. H. 100, 49 Am. Rep. 307; Winchell v. Doty, 15 Hun (N. Y.) 1; Allen v. Rightmere, 20 Johns. (N. Y.) 365, 11 Am. Dec. 288; Gard- ner v. King, 24 N. C. (2 Ired.) 297; Castle v. Rickly, 44 Ohio St. 490, 9 N. B. 136, 58 Am. Rep. 839; Weiler v. Henarie, 15 Or. 28, 13 Pac. 614; Carroll County Sav. Bank v. Strother, 28 S. C. 504, 6 S. E. 313; Klein v. Kern, 94 Tenn. (10 Pickle) 34, 28 S. W. 295; Partridge v. Davis, 20 Vt. 499; Pasteur v. Parker, 3 Rand. (Va.) 458; Ten Eyck v. Brown, 3 Pin. (Wis.) 452; Evans v. Cleveland & P. R. Co., Fed. Cas. No. 4,557. See ante, § 14. § 100) FORM OF NOTICE WHEN REQUIRED. 141 itor proceeds against him. 83 The neglect is his as much as that of the creditor. 34 If the surety knew, or had means of asBuckalew v. Smith, 44 Ala. 638; King v. State Bank, 9 Ark. (4 Eng.) 185, 47 Am. Dec. 739; Humphreys v. Crane, 5 Cal. 173; Clark v. Gerstley, 26 App. D. C. 205; Dorman v. Bigelow, 1 Fla. (Branch) 281; Crawford v. Gaulden, 33 Ga. 173; Lyle t. Morse, 24 I1L 95 Kirby v. Studebaker, 15 Ind. 45; Stout v. Ashton, 21 Ky. (5 T. B. Mon.) 251; Pharr v. McHugh, 32 La. Ann. 1280; Sfowell v. Goodenow, 31 Me. 538; Sasscer v. Young, 6 Gill & J. (Md.) 243; WATERTOWN FIRE INS. CO. v. SIMMONS, 131 Mass. 85, 41 Am. Rep. 196; Hunt v. Bridgham, 19 Mass. (2 Pick.) 581, 13 Am. Dec. 458; ROBERTS v. HAWKINS, 70 Mich. 566, 38 N. W. 575; HUN- GERPORD v. O'BRIEN, 37 Minn. 306, 34 N. W. 161; Huey v. Pinney, 5 Minn. 310 (Gil. 246); Wright v. Watt, 52 Miss. 634; Hawkins v. Ridenhour, 13 Mo. 125; Clark v. Sickler, 64 N. Y. 231, 21 Am. Rep. 606; People v. White, 28 Hun (N. Y.) 289; Carter v. Jones, 40 N. C. 196, 49 Am. Dec. 425; Newton v r Hammond, 38 Ohio St. 430; Edwards v. Dargan, 30 S. C. 177, 8 S. E. 858; Johnston v. Searcy, 12 Tenn. (4 Yerg.) 182; Hunter v. Clark, 28 Tex. 159; Knight v. Char- ter, 22 W. Va. 422; Hunt v. United States, 1 Gall. (U. S.) 32, Fed. Cas. No. 6,900; 40 Cent. Dig. col. 2020. In Coleman v. Stone, 85 Va. 386, 7 S. E. 241, the delay was 25 years. A guarantor is not discharged by the delay of the creditor. English v. Landon, 181 111. 614, 54 N. E. 911; Hooker v. Gooding, 86 111. 60; Peterson v. Russell, 62 Minn. 220, 64 N. W. 555, 29 L. R. A. 612, 54 Am. St. Rep. 634; D. M. Osborne & Co. v. Lawson, 26 Mo. App. 549; Bloom v. Warder, 13 Neb. 476, 14 N. W. 395; Noxon v. Bentley, 7 How. Prac. (N. Y.) 316; Foster v. Tolleson, 13 Rich. Law (S. O.) 31; Irvine v. Brasfield, 57 Tenn. (10 Heisk.) 425. In Pennsylvania a guarantor of payment when due, is not discharged by lack of diligence on the part of the creditor. Korn v. Hon], 80 Pa. 333; Girard Life Ins. Co. v. Fin- ley, 1 Phila. (Pa.) 70. Though it is otherwise as to a guarantor of payment generally. Tissue v. Hanna, 158 Pa. 384, 27 Atl. 1104; Johnston v. Chapman, 3 Pen. & W. (Pa.) 18. A guarantor would not be discharged, though the delay be at the request of the creditor. CLARK v. SICKLER, 64 N. Y. 231, 21 Am. Rep. 606. A surety is not discharged by delay of the creditor in presenting his claim against the estate of a deceased principal until it is too late to have it allowed. Minter v. Branch Bank, 23 Ala. 762, 58 Am. Dec. 315; Smith v. Smithson, 48 Ark. 261, 3 S. W. 49; Bull v. Coe, 77 Cal. 54, 18 Pac. 808, 11 Am. St. Rep. 235; Jackson v. Benson, 54 Iowa, 654, 7 N. W. 97; Halderman v. Woodward, 22 Kan. 734; Mitchell v. Williamson, 6 Md. 210; Johnson v. Planters' Bank, 12 Miss. (4 Smedes & M.) 165. 43 Am. Dec. 480; Cain v. Bates, 3* Herrick v. Borst, 4 Hill (N. Y.) 650. 142 CREDITOR AND SURETY. (Ch. 5 ascertaining, when the principal was in default, it was his duty to settle the claim at once, as it was against such de- fault that he contracted. If there was any probability of his being injured by delay, he should have paid the debt, as he had undertaken to do, and seek redress from his principal. 35 The delay of the creditor, instead of working an injury to him, would be supposed to be to his advantage. After suit is brought by the creditor against the principal, mere con- tinuance of such suit will not affect the surety's rights, as his position as to the creditor or principal is not affected thereby any more than it was before the bringing of the suit. 36 Express Stipulations. Each of these rights of the creditor or obligee against the surety may be taken away by a term in the contract. A party to a contract is at liberty to make any contract he pleases, so long as it does not infringe any rule of law ; and, if the sure- ty expressly stipulate that the creditor shall resort first to the principal, 37 or to security which the creditor holds, 38 or that notice shall be given of the principal's default, 39 and de- 35 Mo. 427; Boardman v. Paige, 11 N. H. 437; Moore v. Gray, 26 Ohio St. 525; Planters' & Mechanics' Nat. Bank of Houston v. Rob- ertson (Tex. Civ. App. 1905) 86 S. W. 643. In some states this has been changed by statute. Waughop v. Bartlett, 165 111. 124, 46 N. E. 197. The creditor is not obliged to present his claim to an assignee for the benefit of the principal's creditors. Dye v. Dye, 21 Ohio St. 86, 8 Am. Rep. 40. Where an indorser's liability has been fixed by demand, notice, and protest, he is not discharged by any delay short of the period fixed by the statute of limitations, though the maker may have become insolvent during the delay. Rogers v. Detroit Sav. Bank (Mich. 1906) 110 N. W. 74, 13 Detroit Leg. N. 889. ss See post, § 154. ss BickhofC v. Eickenbary, 52 Neb. 332, 72 N. W. 308; First Nat. Bank of Cumberland v. Parsons, 45 W. Va. 688, 32 S. E. 271. 3 7 Salt Springs Nat. Bank v. Sloan, 57 Hun, 265, 11 N. Y. Supp. 32; Eddy v. Stanton, 21 Wend. (N. Y.) 255; Jones v. Greenlaw, 6 Cold. (Tenn.) 342; Dwight v. Williams, 4 McLean (U. S.) 581, Fed. Cas. No. 4,218. ss Brainard v. Reynolds, 36 Vt 614. 3 9 United States Fidelity & Guaranty Co. v. Rice, 148 Fed. 206, 78 C. C. A. 164. § 100; FORM OF NOTICE WHEN REQUIRED. 143 mand made, he cannot be held liable unless these conditions have been complied with, even though no injury results to the surety from a failure to comply with them. 40 Implied Stipulations. In some contracts of suretyship the law implies some of these conditions, without their being stipulated for express- ly. As we have seen, a guaranty of collection is, in itself, a conditional guaranty, requiring the creditor to exhaust the prin- cipal first, and without delay, 41 and he should notify the guar- antor of his inability to collect. 42 In the contract of a regular indorser of a negotiable instrument the law requires the cred- itor to make demand of the principal, and to give notice of default to the indorser; otherwise, he is freed from liability. 48 If the contract of a surety has been made after the enact- ment of a statute requiring the obligee to resort first to the principal, the parties are supposed to have contracted with reference to the statute ; 44 and in such cases the obligee must resort first to the principal before he can have recourse to the surety. Statutes of limitation require suit to be brought within a certain time upon contracts named therein, or they become no longer enforceable; and contracts of suretyship come with- in the provisions of the statute according to the character of the contract. Delay by the creditor or obligee beyond the period fixed in the statute will take away the remedy against the surety. 45 Notice to Guarantor of Amount. The notice requisite in the case of an offer to guaranty has been considered elsewhere ; 48 but notice of acceptance alone *» Hillary v. Rose, 9 Phila. (Pa.) 139. See post, § 125. « See ante, c. I, note 76, and post, § 126. * 2 Failure to give this notice furnishes no defense to the guaran- tor, unless he is prejudiced by lack thereof. G-illighan v. Boardman, 29 Me. 79; BEACKETT v. RICH, 23 Minn. 485, 23 Am. Rep. 703; Thomas v. Woods, 4 Cow. (N. Y.) 173; Bashford v. Shaw, 4 Ohio St. 263; Janes v. Scott, 59 Pa. 178, 98 Am. Dec. 328; Gibbs v. Cannon, 9 Serg. & R. 198, 11 Am. Dec. 699; Benton v. Gibson, 1 Hill (S. C.) 56; Sylvester v. Downer, 18 Vt. 32. « See post, c. VIIT, note 14. ** See ante, c. IV, note 38. « See post, § 130, b, 2. «« Ante, § 37. 144 CREDITOR AND SURETY. (Ch. 5 is not all that is required in some cases. Where the guaranty is for a single transaction, and the amount " or other terms * s are definite, notice of acceptance will give the guarantor all the information he may require; hut, where the guaranty is for future advancements of money or of goods, the guarantor, except by repeated inquiries, is not in a position to know to what extent he may be called upon to respond for the default of his principal, and, in order that he may take the neces- sary steps to protect himself in his dealings with the principal, the creditor is required to give the guarantor notice of the total amount of credit extended to the principal.* 9 It is not requisite to give notice after each separate transaction, but it is sufficient if it be given after all the advancements are vmade. 60 Notice of the exact amount is not required, but no- tice of "about" the amount of goods furnished would suffice. 61 Notice of Principal's Default. In cases of continuing guaranties, where advancements are made to the principal from time to time, notice must be given, not only of the total amount, as stated in the preceding para- graph, but also of the default of the principal. 52 As the ne- gotiations have been solely between the creditor and the prin- cipal, the guarantor is ignorant, not only of the amounts, but « German Sav. Bank v. Drake Roofing Co., 112 Iowa, 184, 84 N. W. 960, 51 L. R. A. 758, 84 Am. St. Rep. 335. "8 Bushnell v. Church, 15 Conn. 406; Kirby v. Studebaker, 15 Ind. 45. 49 Lawson v. Tpwnes, 2 Ala. 373; Killian v. Ashley, 24 Ark. 511, 91 Am. Dec. 519; Craft v. Isham, 13 Conn. 28; SINGER MFG. CO. v. LITTLER, 56 Iowa, 601, 9 N. W. 905; Howe v. Nickels, 22 Me. 175; Babcock v. Bryant, 12 Pick. (Mass.) 133; Whiting v. Stacy, 15 Gray (Mass.) 270; Montgomery v. Kellogg, 43 Miss. 486, 5 Am. Rep. 508; Beebe v. Dudley, 26 N. H. 249, 59 Am. Dec. 341; Bay v. Thomp- son, 1 Pears. (Pa.) 551; Louisville Mfg. Co. v. Welch, 51 U. S. (10 How.) 461, 13 L. Ed. 497. bo Lowe v. Beckwith, 14 B. Mon. (Ky.) 150, 58 Am. Dec. 659. si Noyes v. Nichols, 28 Vt. 159. 02 Walker v. Forbes, 25 Ala. 139, 60 Am. Dec. 498; Mayberry v. Bainton, 2 Har. (Del.) 24; Milroy v. Quinn, 69 Ind. 406, 35 Am. Rep. 227; Stewart v. Knight (Ind. App. 1904) 71 N. E. 182; SINGER MFG. CO. v. LITTLER, 56 Iowa, 601, 9 N. W. 905; Mussey v. Ray- ner, 22 Pick. (Mass.) 228; Beebe v. Dudley, 26 N. H. 249, 59 Am. Dec. 341; Douglass v. Reynolds, 7 Pet (U. S.) 113, 8 L. Ed. 626. § 100) FORM OF NOTICE WHEN REQUIRED. 145 of the time payments should be made. While he might as- certain this by inquiries, the law does not throw that burden upon him, but requires that he be given notice of the default of the principal. Such notice must be given in a reasonable time ; 63 and what is reasonable depends upon the circum- stances, and is a question of fact for the jury. 64 Time and Form of Notice. As the object of the notice is to enable the guarantor to take steps to protect himself against loss, he is discharged to the extent of the damage sustained only; 65 and, if he has not sustained any loss by reason of such failure, his liability re- mains. 68 If the principal remain solvent, the guarantor does not sustain any loss, as he can recover from the principal any sums he may be called upon to pay. 67 If the principal were insolvent at the time the contract was made, the guarantor has not suffered loss, 68 for he could not have recovered from sa Cahuzac v. Samini, 29 Ala. 288; Ringgold v. Newkirk, 3 Ark. (3 Pike) 96; Erwin v. Lamborn, 1 Har. (Del.) 125; Furst & Bradley Mfg. Co. v. Black, 111 Ind. 308, 12 N. B. 504; Second Nat. Bank of Eockfordv. Gaylord, 34 Iowa, 246; Allen v. Pike, 57 Mass. (3 Cush.) 238; Dole v. Young, 41 Mass. (24 Pick.) 250; Brackett v. Rich, 23 Minn. 485, 23 Am. Rep. 703; Montgomery v. Kellogg, 43 Miss. 486, 5 Am. Rep. 508; Cox v. Brown, 51 N. C. (6 Jones' Law) 100; Greene v. Dodge, 2 Ohio, 430; Patterson v. Reed, 7 Watts & S. (Pa.) 144; Gar- rett v. Mobile L. Ins. Co., 1 White & W. Civ. Cas. Ct. App. § 937; Bull v. Bliss, 30 Vt. 127; Dunbar v. Brown, 4 McLean (U. S.) 166, Fed. Cas. No. 14,129. s* Jackson v. Yandes, 7 Blackf. (Ind.) 526; Wadsworth v. Allen, 8 Grat. (Va.) 174, 56 Am. Dec. 137. " Cahuzac v. Samini, 29 Ala. 288; McCollum v. Cushing, 22 Ark. 540; Mayberry v. Bainton,' 2 Har. (Del.) 24; Taussig v. Reidj 145 111. 488, 32 N. E. 918, 36 Am. St. Rep. 504; Davis S. M. Co. v. Mills, 55 Iowa, 543, 8 N. W. 356; Howe v. Nickels, 22 Me. 175; Bishop v. Ea- ton, 161 Mass. 496, 37 N. E. 665, 42 Am. St. Rep. 437; Clark v. Rem- ington, 11 Mete. (Mass.) 361; Montgomery v. Kellogg, 43 Miss. 486, 5 Am. Rep. 508; Rankin v. Childs, 9 Mo. 673; UNION BANK OF LOUISIANA v. COSTER, 3 N. Y. 203, 53 Am. Dec. 280; Sullivan v. Field, 118 N. C. 358, 24 S. E. 735; Reynolds v. Douglass, 12 Pet. (U. S.) 497, 9 L. Bd. 1171. oe Babcock v. Bryant, 29 Mass. (12 Pick.) 133; UNION BANK v. COSTER, 3 N. Y. 203, 53 Am. Dec. 280. " See post, § 154. 5s Walker v. Forbes, 25 Ala. 139, 60 Am. Dec. 498; Mayberry v. Childs' Stjbbttship — 10 146 CREDITOR AND SURETY. (Ch. 5 the principal, had he been notified promptly ; B9 but if the principal were solvent when the contract was made, and after- wards becomes insolvent, delay in giving notice may involve the guarantor in loss. The notice required need not be for- mal, 60 nor need it be in writing, but may be inferred from cir- cumstances ; 61 or it may be waived, either expressly 62 or impliedly. 63 SURETY'S RIGHTS NOT AFFECTED BY JUDGMENT. 101. The rights and liabilities of a surety are not affected by the recovery of a judgment against him. The rights and liabilities of a surety are not affected by a judgment obtained by the creditor against him for the debt. 64 Sainton, 2 Har. (Del.) 24; German Sav. Bank v. Drake Roofing Co., 112 Iowa, 184, 84 N. W. 960, 51 L. R. A. 758, 84 Am. St. Rep. 335; Beebe v. Dudley, 26 N. H. (6 Foster) 249, 59 Am. Dec. 341; Sullivan v. Field, 118 N. C. 358, 24 S. B. 735; Bashford v. Shaw, 4 Ohio St. 263; Janes v. Scott, 59 Pa. (9 P. F. 'Smith) 178, 98 Am. Dec. 328. 59 Walker v. Forbes, 25 Ala. 139, 60 Am. Dec. 498; Taussig v. Reid, 145 111. 488, 32 N. E. 918, 36 Am. St. Rep. 504; BRACKETT v. RICH, 23 Minn. 485, 23 Am. Rep. 703; Dearborn v. Sawyer, 59 N. H. 95. so Notice is not necessary if the guarantor knows of the prin- cipal's default. Benton v. Gibson, 1 Hill Law (S. C.) 56. 6i Montgomery v. Kellogg, 43 Miss. 486, 5 Am. Rep. 508; Oaks v. Weller, 16 Vt. 70; Reynolds v. Douglass, 12 Pet. (U. S.) 497, 9 L. Ed. 1171. sa Bickford v. Gibbs, 8 Cush. (Mass.) 154. Where indebtedness was guarantied "unconditionally at all times," notice of amount was waived expressly. DAVIS v. WELLS, 104 U. S. 164. 26 L. Ed. 686. 6 3 If the guarantor acknowledge his liability, notice is not re- quired. Breed v. Hillhouse, 7 Conn. 523. 64 Carpenter v. Devon, 6 Ala. 718; Curan v. Colbert, 3 Ga. (3 Kelly) 239, 46 Am. Dec. 427; Trotter v. Strong, 63 111. 272; Cham- bers v. Cochran, 18 Iowa, 159; Davis v. Mikell, 1 Freem. Ch. (Miss.) 548; Rice v. Morton 19 Mo. 263; Bangs v. Strong, 4 N. Y. (4 Comst.) 315; La Farge v. Herter, 11 Barb. (N. Y.) 159; Mortland v. Himes, 8 Pa. (8 Barr) 265; Commonwealth, to Use of Bellas, v. Vanderslice, 8 Serg. & R. (Pa.) 452; Wren v. Peel, 64 Tex. 374; Dunham v. Down- er, 31 Vt. 248. The rule is the same as to an indorser. Hubbell v. Carpenter, 5 Barb. (N. Y.) 520. § 101) surety's bights not AFFECTED BY JUDGMENT. 14:7 The only effect of the judgment is to change the form of the obligation; 86 the judgment being, technically, of a higher nature. 66 The rule is the same whether the judgment be ob- tained against the principal and surety jointly, 67 or against the latter alone. 68 The creditor may satisfy his judgment out of the property of the surety without resorting to the princi- pal; 69 and the rights of the creditor are not affected by a delay in seeking satisfaction of the judgment. 70 The surety, however, while he has the same liability after judgment as he did before, also has the same rights, which the creditor must respect; and any subsequent acts of the creditor which would have discharged the surety before judgment will have a like effect after judgment. 71 65 Davis v. Maynard, 9 Mass. 242; Moss v. Pettingill, 3 Minn. 217 (Gil. 145); Smith v. Rice, 27 Mo. 505, 72 Am. Dec. 281; Bangs v Strong, 4 N. Y. 315; Blazer v. Bundy, 15 Ohio St. 57; Commonwealth, to Use of Bellas, v. Vanderslice, 8 Serg. & R. 452. os Carpenter v. King, 9 Mete. (N. Y.) 511, 43 Am. Dee. 405. 6 7 Storms v. Thorn, 3 Barb. (N. Y.) 314. 68 Maufacturers' & Mechanics' Bank v. Bank of Pennsylvania, 7 Watts & S. (Pa.) 335, 42 Am. Dec. 240. 69 Keaton v. Cox, 26 Ga. 162; Puller v. Loring, 42 Me. 481; Eason v. Petway, 18 N. C. 44. See ante, note 16. In some states, by stat- ute, the property of the principal must be levied upon first. Knode v. Baldridge, 73 Ind. 54; St. 111. c. 103, § 14. to Summerhill v. Tapp, 52 Ala. 227; Lumsden v. Leonard, 55 Ga. 374; Jerauld v. Trippet, 62 Ind. 122; Manice v. Duncan, 12 La. Ann. 715. See supra, note 33. 7i Brown v. Ayer, 24 Ga. 288; Stelle v. Lovejoy, 125 111. 352, 17 N. E. 711: Green v. Raftes, 67 Ind. 49; Ames v. Maclay, 14 Iowa, 281; Moss v. Pettingill, 3 Minn. 217 (Gil. 145); Davis v. Mikell, 1 Freem. Ch. (Miss.) 548; West v. Brison, 99 Mo. 684, 13 S. W. 95; Delaplaine v. Hitchcock, 4 Edw. Ch. (N. Y.) 321; Commercial Bank of Lake Erie v. Western Reserve Bank, 11 Ohio, 444, 38 Am. Dec. 739; Noble v. Oil Co., 69 Pa. 409. An extension of time given to the principal after the recovery of a judgment against the surety will discharge the latter. Carpenter v; Devon, 6 Ala. 718; Gipson v. Ogden, 100 Ind. 20; Allison v. Thomas, 29 La. Ann. 732; State, to Use of Barber, v. Hammond, 6 Gill & J. (Md.) 157; Smith v. Rice, 27 Mo. 505, 72 Am. Dec. 281; Bangs v. Strong, 7 Hill (N. Y.) 250, 42 Am. Dec. 64; Blazer v. Bundy, 15 Ohio St. 57; Clippinger v. Creps, 2 Watts (Pa.) 45; Pilgrim v. Dykes, 24 Tex. 383; Ward v. Johnson, 6 Munf. (Va.) 6', 8 Am. Dec. 729. So will an extension given to an- other surety. Ide v. Churchill, 14 Ohio St. 372. Or the release of 148 CREDITOR AND SURETY. (Ch. 5 CREDITOR MUST HAVE KNOWLEDGE OF THE RELATION TO AFFECT A SURETY BY HIS ACTS. 102. The rights of a surety will not be affected by acts of the creditor or obligee, unless the existence of the relation of principal and surety be known to the credit- or or obligee. CREDITOR MUST RESPECT RELATION WHEN IN- FORMED. 103. The relation must be respected as soon as knowledge thereof is acquired by the creditor or obligee. RELATION MAY BE SHOWN ORALLY. 104. Oral evidence is competent to show the relation of the parties, except— (a) Oral evidence will not be allowed to contradict a writ- ten instrument. (b) The relation cannot be shown so as to affect the rights of a purchaser of <* negotiable instrument for value without notice. Creditor's Ignorance of Relation. Where two or more persons are liable upon a contract, the other party thereto is justified in dealing with one of them in regard to some 'matter which it naturally might be presumed would be for the benefit of all, on the theory that the person dealt with was acting for the others; hence, if two persons upon a contract bear the relation to each other of principal and surety, and that fact be unknown to the creditor, the rights of the creditor against the surety cannot be affected by any subsequent negotiations between the creditor and principal alone. 72 P. and S. buy goods from C. on credit, the trans- the principal. Mortland v. Himes, 8 Pa. (8 Barr) 265; Ragsdale v. Gossett, 70 Tenn. (2 Lea) 729. 72 Orvis v. Newell, 17 Conn. 97; Murray v. Graham, 29 Iowa, 520, 7 Am. Dec. 494; Neel v. Harding, 2 Mete. (Ky.) 247; Cheesehrough v. Millard, 1 Johns. Ch. (N. Y.) 409. A surety is not discharged by § 104) RELATION MAT BE SHOWN ORALLY. 149 action, apparently, being a joint one ; but, as between P. and S., it is understood that the goods are for P., and that S. has consented to become an apparent party to the transaction be- cause of the probability that C. would not have sold the goods to P. alone. When the time of credit has expired, P., the principal, unknown to S., goes to C, the creditor, and requests an extension of time, which is granted. S. would not be freed from liability, as he would if C. knew that he was a surety merely. 73 Where the creditor is aware of the relation, 74 while it is of little importance so far as his right to enforce the contract is concerned, 76 he must exercise great caution as to his acts after the contract is made, 76 and particularly after default, an extension of time given to the principal by the surety in ignor- ance of the relation. Stewart v. Parker, 55 Ga. 656; Mullendore v. Wertz, 75 Ind. 431, 39 Am. Rep. 155; Morgan v. Thompson, 60 Iowa, 280, 14 N. W. 306; Wilson v. Foot, 52 Mass. (11 Mete.) 285; Agnew v. Merritt, 10 Minn. 308 (Gil. 242); Nichols v. Parsons, 6 N. H. 30, 23 Am. Dec. 706; Kaighn v. Fuller, 14 N. J. Eg.. (1 McCarter) 419; Elwood v; Deifendorf, 5 Barb. (N. T) 398; Roberts v. Bane, 32 Tex. 385; Culbertson v. Wilcox, 11 Wash. 522, 39 Pac. 954; St. Maries v. Polleys, 47 Wis. 67, 1 N. W. 389. 7s See post, § 108. 7* Pollard v. Stanton, 5 Ala. 451; Taylor v. Scott, 62 Ga. 39; Flynn v. Mudd, 27 111. 323; Gipson v. Ogden, 100 Ind. 20; Kelly v. Gillespie, 12 Iowa, 55, 79 Am. Dec. 516; Neel v. Harding, 59 Ky. (2 Mete.) 247; Adle v. Metoyer, 1 La. Ann. 254; Cummings v. Little, 45 Me. 183; Yates v. Donaldson, 5 Md. 389, 61 Am. Dec. 283; Guild v. Butler, 127 Mass. 386; Walter A. Wood Mowing & Reaping Mach. Co. v. Oliver, 103 Mich. 326, 61 N. W. 507; Stevens v. Oaks, 58 Mich. 343, 25 N. W. 309; Smith v. Freyler, 4 Mont. 489, 1 Pac. 214, 47 Am. Rep. 358; Lee v. Brugmann, 37 Neb. 232, 55 N. W. 1053; Grafton Bank v. Kent, 4 N. H. 221, 17 Am. Dec. 414; Pitts v. Congdon, 2 N. Y. 352, 51 Am. Dec. 299; HAYS v. WARD, 4 Johns. Ch. (N. Y.) 123, 8 Am. Dec. 554; First Nat. Bank of Victoria v. Skidmore (Tex. Civ. App. 1895) 30 S. W. 564; Peake v. Dorwin, 25 Vt. 28; Harmon v. Hale, 1 Wash. T. 422, 34 Am. Rep. 816; Irvine v. Adams, 48 Wis. 468, 4 N. W. 573; 33 Am. Rep. 817; Scott v. Scruggs, 60 Fed. 721, 9 C. C. A. 246, 23 TJ. S. App. 280. The surety must prove that the cred- itor had knowledge of the relation. Mullendore v. Wertz, 75 Ind. 431, 39 Am. Rep. 155. 7 5 See ante, § 96. 7« See post, as to alteration, section 107; extension of time, section 108; and relinquishment of securities, section 127. 150 CREDITOR AND SURETY. (Ch. 5 or by some act he may injure the surety, and thus discharge him. The rule is the same, whether the relation is that of a surety in the narrow sense, or whether the suretyship results by operation of law. 77 Subsequent Knowledge of Relation. The creditor is bound to respect the relation as soon as he is aware of it. 78 The rule is the same where the creditor is aware of the relation as originally existing, and the principal and surety, by subsequent dealings between themselves, have changed the relation. 79 As soon as the creditor reasonably is informed that a party bound to him is a surety for another party also bound to him, he is required to respect the relation. 80 What Constitutes Notice. If there are two or more signatures to a promissory note, there is no presumption that one or more of the signers are sureties ; or, if some are sureties, that the first signer is neces- sarily the principal. 81 The original payee of a note may be presumed to know that one of the parties to it was a prin- cipal, if all of the money for which such note was given, was paid by the creditor to such person ; 82 but a subsequent hold- 77 Home Nat. Bank of Chicago v. Waterman, 134 111. 461, 29 N. B. 503; Wayman v. Jones, 58 Mo. App. 313. 78 Lauman v. Nichols, 15 Iowa, 161; Guild v. Butler, 127 Mass. 386; SMITH v. SHELDEN, 35 Mich. 42, 24 Am. Rep. 529; O'Howell v. Kirk, 41 Mo. App. 523; Wheat v. Kendall, 6 N. H. 504; Colgrove v. Tallman, 2 Lans. (N. Y.) 97; Overend, Gurney & Co. v. Oriental Corp., L. R. 7 H. L. 348. 79 See ante, § 68. so If a creditor of a firm is aware that certain of the partners have assumed the firm debts, he must recognize, in dealing with such partners thereafter, the relation of surety sustained by the other partners. Preston v. Garrard, 120 Ga. 689, 48 S. E. 118; SMITH v. SHELDEN, 35 Mich. 42, 24 Am. Rep. 529; Colgrove v. Tallman, 67 N. Y. 95, 23 Am. Rep. 90; Millerd v. Thorn, 56 N. Y. 402; ROUSE v. BRADFORD BANKING CO., [1894] App. Cas. 586. si Summerhill v. Tapp, 52 Ala. 227; Paul v. Berry. 78 111. 158. 82 Ward v. Stout, 32 111. 399; Champion v. Robertson, 67 Ky. (4 Bush) 17; Cummings v. Little, 45 Me. 183. Where one obligor makes payments, and is resorted to by the obligee, and another obligor does not make payments, and is not called upon by the obligee, a strong presumption is raised that the former is a principal, and the other a surety. Doughty v. Bacot, 2 Desaus. (S. C.) 546. § 104) RELATION MAT BE SHOWN ORALLY. 151 er could not be presumed to know. If, at the time the hold- er of a nc/te discounts it, he is told of the relation, there is no question as to his knowledge. The Creditor will be held to have constructive notice of anything which appears upon the instrument itself, whether he has r«ad it or not; and if the relation is expressly stated in the instrument, that is sufficient. 83 Where a mortgage to se- cuek a debt of a husband is signed by the husband and wife, the creditor will have constructive notice that the wife is a surety, if the public records show that the land belonged to the wife. 84 /': If the relation does not appear upon the instrument itself, /the "burden is on the surety to show that the creditor had • knowledge of it; 85 but, where it is shown that one of the f'rnakers of a promissory note was a surety, the presumption is that the creditor knew it. 86 Showing Relation by Oral Bzidence. A surety may show, by oral evidence, not only that he sus- tains that relation, 87 but the particular kind of suretyship con- es Ward v. Stout, 32 III. 399; Flynn v. Mudd, 27 111. 323. a* Trentman v. Eldridge, 98 Ind. 525; Bank of Albion v. Burns, 46 N. Y. 170; Smith v. Townsend, 25 N. Y. 479. s 5 Summerhill v. Tapp, 52 Ala. 227; Stewart v. Parker, 55 Ga. 656; Tharp v. Parker, 86 Ind. 102; Morgan v. Thompson, 60 Iowa, 280, 14 N. W. 306; Neel v. Harding, 59 Ky. (2 Mete.) 247; Wilson v. Foot, 52 Mass. (11 Mete.) 285; Agnew v. Merritt, 10 Minn. 308 (Gil. 242); Patterson v. Brock, 14 Mo. 473; Nichols v. Parsons, 6 N. H. 30, 23 Am. Dec. 706; Kaighn v. Fuller, 14 N. J. Eq. (1 McCarter) 419; Blwood v. Deifendorf, 5 Barb. (N. Y.) 398; Neimcewicz v. Gahn, 3 Paige (N. Y.) 614; Torrence v. Alexander, 85 N. O. 143; Dozier v. Lea, 26 Tenn. (7 Humph.) 520; Roberts v. Bane, 32 Tex. 385; Cul- bertson v. Wilcox, 11 Wash. 522, 39 Pac. 954; 40 Cent. Dig. col. 1653. as Ward v. Stout, 32 111. 399. St Branch Bank of State at Mobile v. James, 9 Ala. 949; Kendall v. Milligan, 62 Ark. 629, 34 S. W. 78; Diescher v. Fulham, 11 Colo. App. 62, 52 Pac. 685; Orvis v. Newell, 17 Conn. 97; Bowen v. Darby, 14 Fla. 202; Stewart v. Parker, 55 Ga. 656; Kennedy v. Evans, 31 111. 258; Flynn v. Mudd, 27 111. 323; Piper v. Newcomer, 25 Iowa, 221; Kelly v. Gillespie, 12 Iowa, 55, 79 Am. Dec. 516; Rose v. Wil- liams, 5 Kan. 483; Chapeze v. Young, 87 Ky. 476, 9 S. W. 399; Rob- erts v. Jenkins, 19 La. 455; Cummings v. Little, 45 Me. 183; Harris v. Brooks, 38 Mass. (21 Pick.) 195, 32 Am. Dec. 254; Stevens v. Oaks, 58 Mich. 343, 25 N. W. 309; Davis v. Mikell, 1 Freem. Ch. (Miss.) 152 CEKDITOE AND SURETY. (Ch. 5 tract entered into by him, 88 and that the creditor knew it; and it makes no difference that the instrument is under seal. 89 This is not varying a written instrument, as such relation is not inconsistent with the liability shown upon the instrument, but is showing what the contract really is. 90 Not only may a surety show the true relation, but he may show, also, any other terms of the contract entered into between the surety and the creditor, which do not alter the terms as written. 91 Oral evidence will not be allowed to show that no liability was intended ; 92 nor that the surety was not to be liable except upon a certain contingency; 98 nor can the relation 548; Stillwell v. Aaron, 69 Mo. 539, 33 Am. Rep. 517; Grafton Bank v. Woodward, 5 N. H. 99, 20 Am. Dec. 566; Hubbard v. Gurney, 64 N. Y. 457, overruling Campbell v. Tate, 7 Lans. (N. Y.) 370; Gahn v. Niemcewicz, 11 Wend. (N. Y.) 312; Welfare v. Thompson, 83 N. C. 276; Thompson v. Coffman, 15 Or. 631, 16 Pac. 713.; Otis v. Von Stroch, 15 E. I. 41, 23 Atl. 39; Fowler v. Alexander, 1 Heisk. (Tenn.) 425; Burke v. Cruger, 8 Tex. 66, 58 Am. Dec. 102; Adams v. Flana- gan, 36 Vt. 400; Boulware v. Hartsook, 83 Va. 679, 3 S. E. 289; Bank of British Columbia v. Jeffs, 15 Wash. 231, 46 Pac. 247; Harmon v. Hale, 1 Wash. T. 422, 34 Am. Rep. 816; KEARNES v. MONTGOM- ERY, 4 W. Va. 29; Irvine v. Adams, 48 Wis. 468, 4 N. W. 573, 33 Am. Rep. 817. Oral evidence is admissible to show that one joint maker of a promissory note, after its execution, promised to pay it. Vary v. Norton (C. C.) 6 Fed. 808. The creditor may show, also, that a person indorsing a promissory note in blank agreed to guar- anty its payment. Beckwith v. Angell, 6 Conn. 315. 8 8 Marsh v. Consolidation Bank, 48 Pa. 510. 8 9 Rogers v. School Trustees, 46 111. 428; Smith v. Clopton, 48 Miss. 66; Smith v. Doak, 3 Tex. 215. so Bank of St. Marys v. Mumford, 6 Ga. 44; Ward v. Stout, 32 111. 399; Rose v. Williams, 5 Kan. 483; Harris v. Brooks, 21 Pick. (Mass.) 195, 32 Am. Dec. 254; Hubbard v. Gurney, 64 N. Y. 457. 9i Dwight v. Linton, 3 Rob. (La.) 57; First Nat. Bank v. Fiske, 133 Pa. 241, 19 Atl. 554, 7 L. R. A. 209, 19 Am. St. Rep. 635. See ante, c. IV, note 6. As to the right to show by oral evidence con- ditions and restrictions upon regular indorsements, see Stearns' Law of Suretyship, p. 203. The weight of authority is that they cannot be shown. Beattie v. Browne, 64 III. 360; Fassin v. Hubbard, 55 N. Y. 465. Norton, Bills and Notes (3d Ed.) p. 114. »2 Geneser v. Wissner, 69 Iowa, 119, 28 N. W. 471; Gumz v. Gieg- ling, 108 Mich. 295, 66 N. W. 48. 93 It cannot be shown that there was to be no liability except on the death of the principal. Miller v. Ridgely (C. C.) 22 Fed. 889. § 105) SURETY REMAINS LIABLE BY CONSENT. 153 orally assumed by a party to a negotiable instrument be shown to the prejudice of a holder thereof for value without notice. 9 * SURETY REMAINS LIABLE BY CONSENT TO SUBSEQUENT NEGOTIATIONS. 105. The liability of a surety is not affected by any subse- quent dealing between the creditor or obligee and the principal, to which the surety consents. While a surety may be discharged by subsequent transac- tions between the principal and the creditor or obligee if he has not assented thereto, he remains liable if he has given his consent. 95 So far as a new contract has been made by any change in the old one, such new contract has become the sure- ty's contract. This consent may be given in advance, 96 or at the time of the negotiations between the principal and the creditor, or it »* Piper v. Headlee, 39 111. App. 93. '»« Rockville Nat. Bank v. Holt, 58 Conn. 526, 20 Atl. 669, 18 Am. St. Rep. 293; Gardiner v. Harback, 21 111. 129; Crosby v. Wyatt, 10 N. H. 318; Klein v. Long, 27 App. Div. 158, 50 N. Y. Supp. 419; Cor- lies v. Bstes, 31 Vt. 653. A surety remains bound, if he consent to an extension of time to the principal. Gray's Ex'rs v. Brown, 22 Ala. 262; Adams v. Way, 32 Conn. 160; Furber v. Bassett, 2 Duv. (Ky.) 433; Osgood v. Miller, 67 Me. 174; Thornton v. Dabney, 23 Miss. (1 Cushm.) 559; Gregory v. Solomon, 19 N. J. Law (4 Har.) 112; Wright v. Storrs, 6 Bosw. (N. Y.). 600; Bice v. Isham, 4 Abb. Dec. (N. Y.) 37; Baldwin v. Western Reserve Bank, 5 Ohio, 273; Wolf v. Fink, 1 Pa. 435, 44 Am. Dec. 141; Bowling v. Flood, 69 Tenn. (1 Lea) 678; Hunter's Adm'r v. Jett, 4 Rand. (Va.) 104; Knight v. Charter, 22 W. Va. 422; Suydam v. Vance, 2 McLean (U. S.) 99, Fed. Cas. No. 13,657; 40 Cent. Dig. col. 2069. So, if he consent to a re- linquishment of securities held by the creditor. Pence v. Gale, 20 Minn. 257 (Gil. 231); New Hampshire Sav. Bank v. Colcord, 15 N. H. 119, 41 Am. Dec. 685; 40 Cent. Dig. col. 2074. Or a release of the principal. Rockville Nat. Bank v. Holt. 58 Conn. 526, 20 Atl. 669, 18 Am. St. Rep. 293; Osgood v. Miller, 67 Me. 174; Parsons v. Gloucester Bank, 10 Pick. (Mass.) 533; Hutchinson v. Wright, 61 N. H. 108; Wright v. Storrs, 6 Bosw. (N. Y.) 600; Davidson v. Cooper, 8 Mees & W. 755. Or to a release of the principal from imprison- ment. Hawkins v. Mims, 36 Ark. 145, 38 Am. Rep. 30. Or to the re- lease of a co-surety. State v. Van Pelt, 1 Ind. (1 Cart.) 304. »8 SMITH v. MOLLESON, 148 N. Y. 241, 42 N. B. 669. 154 CREDITOR AND SURETY. (Ch. 5 may be given afterwards ; 07 in the latter case being known as ratification. An agreement by a surety to be liable as long as there was any liability of the principal does not constitute the latter an agent to bind the surety by a renewal, 98 though an agreement by a surety to be regarded as a principal would authorize a renewal." Where a contract for the construction of a building pro- vided that changes in the plan and specifications might be made, and a bond was given to secure the performance of the contract, the contract became a part of the bond, and the sure- ties thereby consented in advance to a departure from the orig- inal plans. 100 So, where a bond, given for the faithful per- formance of a contract for the employment of the principal, reserved the right to change the employment, 101 or bound the surety for every liability existing or thereafter to be incurred by the principal, 102 a change in the contract will not affect the liability of the surety, though made without consulting him. If a surety be discharged by any negotiations between the principal and the creditor, it is his privilege to waive his dis- charge, if he so desire, after he learns the facts. 103 »' A surety may ratify an alteration of the contract, and remain liable (Pelton v. Prescott, 13 Iowa, 567; Sage v. Strong, 40 Wis. 575), as by a subsequent promise to pay (Gardiner v. Harback, 21 111. 129), or by requesting that an extension of time be given to the principal (Jackson v. Johnson, G7 Ga. 167; Bell v. Mahin, 69 Iowa, 408, 29 N. W. 331). as N ewel i v . clark, 73 N. H. 2S9. 61 Atl. 555. »9 Merchants' Nat. Bank v. Murphy, 125 Iowa, 607, 101 N. W. 441. See post, § 141. ioo SMITH v. MOLLESON, 148 N. Y. 241, 42 N. E. 669; Getchell & Martin Lumber & Mfg. Co. v. National Surety Co., 124 Iowa, 617, 100 N. W. 556, 1123; American Surety Co. v. San Antonio L. & T. Co. (Tex. Civ. App. 1906) 98 S. W. 387. ioi Howe Sewing Maeh. Co. v. Layman, 88 111. 39. 102 Domestic Sewing Mach. Co. v. Webster, 47 Iowa, 3o7. 10 3 A surety remains liable if he makes a new promise to pay. First Nat. Bank of Monmouth v. Whitman, 66 111. 331; Owens v. Tague, 3 Ind. App. 245, 29 N. B. 784; Pelton v. Prescott, 13 Iowa, 567; Bindskopf v. Doman, 28 Ohio St. 516. Or by receiving indemni- ty from the principal. Hagler v. State, 31 Neb. 144, 47 N. W. 692. 28 Am. St. Eep. 514. § 106) DISCHARGE OF CONTRACT. 155 The assent of the surety may be express or implied ; 10 * but, if implied, the facts must be very clear. 105 If the subse- quent dealings between the creditor and the principal are at the request of the surety, his assent will be implied ; but mere knowledge is not consent, 10 ° even though the surety be pres- ent while the creditor and principal are conducting their ne- gotiations. 107 Consent to a second extension will not be im- plied because of consent to the first; 108 nor does consent by one co-surety affect the rights of the others. 109 DISCHARGE OF CONTRACT— IN GENERAL. 106. A contract may be discharged as to both the surety and principal, or as to the surety alone, or as to the prin- cipal alone. i°* A surety's consent will be implied if he pay interest in ad- vance. New Hampshire Sav. Bank v. Colcord, 15 N. H. 119, 41 Am. Dec. 685. It may be implied from usage. Stafford Bank, President, Etc., of., v. Crosby, 8 Greenl. (Me.) 191; Crosby v. Wyatt, 10 N. H. 318. 105 Adle v. Metoyer, 1 La. Ann. 254; New Hampshire Sav. Bank v. Bla, 11 N. H. 335. ioo Stewart v. Parker, 55 Ga. 656; Lambert v. Shetler, 71 Iowa, 463, 32 N. W. 424; POLAK v. EVERETT (1876) L. R. 1 Q. B. D. 669. Knowledge of an alteration is not consent thereto. City of Middletown v. JEtna Indemnity Co., 97 App. Div. 344, 90 N. Y. Supp. 16. 107 Miller v. Gilleland, 19 Pa. 119. In Edwards v. Coleman, 22 Ky. (6 T. B. Mon.) 567, the surety was a subscribing witness to the agreement between the creditor and the principal for an extension of time; but it was held not to be consent to remain liable. Where the surety is a director of a corporation, the corporation being the principal debtor, he does not consent impliedly to remain bound after an extension of the time of payment has been negotiat- ed by an officer of the corporation. Franklin Savings Bank v. Coch- rane, 182 Mass. 586, 66 N. E. 200, 61 L. R. A. 760. los Gray's Ex'rs v. Brown, 22 Ala. 262; Oyler v. McMurray, 7 Ind. App. 645, 34 N. E. 1004; Lime Rock Bank v. Mallett, 34 Me. 547, 50 Am. Dec. 673; Merrimack County Bank v. Brown, 12 N. H. 320; Morehead v. Duncan, 82 Pa. 488. A consent to an extension is not consent to a change in the date of the instrument, which indirectly extends the time of payment. Brannum Lumber Co. v. Pickard, 33 Ind. App. 484, 71 N. E. 676. io» Crosby v. Wyatt, 10 N. H. 318; Mundy v. Stevens, 61 Fed. 77, 9 C. C. A. 366, 17 U. S. App. 442. 156 CREDITOR AND SURETY. (Ch. 5 A contract of suretyship is subject to the same general rules which govern the discharge of contracts in general; 110 but it is the purpose here to treat of the rules which more pe- culiarly apply to this kind of contract. It must be borne in mind that the contract is subject to termination either before or after default, or it may be terminated after one default, but before another has taken place. A surety, in one sense, is lia- ble when he executes the contract. In another sense, he is liable after the principal is in default. In the first case it would be proper to speak Of the original contract being ter- minated, if it merely refers to the fact that the surety cannot be called upon to respond in damages on account of anything that might occur thereafter. If there has been a default, and the surety might be called upon to respond in damages, it might be more proper to speak of any action which relieved the surety from this liability as a discharge. But the orig- inal liability arising upon execution of the contract, and the lia- bility which arises upon a breach of the contract, are so inter- woven that it will not be possible to treat of the two separate- ly. Some occurrence might terminate the contract as to the surety, so far as future acts were concerned, leaving him lia- ble for defaults which had previously occurred; or he might be discharged as to both past and future defaults. In addition to the difficulty which is common to all con- tracts, a contract of suretyship is complicated still further, so far as treating of the discharge of the surety is concerned, by the fact that the dealings between the creditor or obligee and the principal are a very important factor; and a surety may be discharged although the principal remains liable, or the surety may remain liable though the principal may be discharg- ed, or they both may be discharged. Owing to these difficul- ties, a systematic arrangement of the different modes in which a surety may be discharged seems impossible, and the different defenses will be taken in order. no See, as to these rules, Clark, Cont. (2d Ed.) e. XI. § 107) DISCHARGE BT ALTERATION OF THE CONTRACT. 157 DISCHARGE BY ALTERATION OF THE CONTRACT. 107. An alteration of a contract of suretyship will render it void as to the surety, unless— (a) It is made by the creditor or obligee without knowledge of the relation, and with the consent of the princi- pal. (b) It is made with the consent of the surety. (c) It is made by some one not seehing to enforce it, or who was not a party to the contract. (d) It is made unintentionally. (e) The surety has been negligent. (f) It is immaterial. The general rule is that a material alteration of a contract in writing, by addition, subtraction, or both, avoids it, 111 provid- ed the other party has not consented thereto; and the rule is not affected by the fact that the surety has received a con- sideration. 112 As a contract of suretyship is a sort of triangular one, in- volving the various rights of the creditor or obligee, the prin- cipal, and the surety, many transactions between the creditor in Glover v. Bobbins, 49 Ala. 219, 20 Am. Rep. 272; Rowan v. Sharps, 33 Conn. 1; Bank of Newark v. Crawford, 2 Houst. (Del.) 282; Hanson v. Crawley, 41 Ga. 303; Wyman v. Yeomans, 84 111. 403; Newlan v. Harrington, 24 111. 206; Bckert v. Louis, 84 Ind. 99; Bell v. Mahin, 69 Iowa, 408, 29 N. W. 331; Jackson v. Cooper, 19 Ky. Law Rep. 9, 39 S. W. 39; Langley v. Adams, 40 Me. 125; Bullen v. Dres- ser, 116 Mass. 267; Wilde v. Armsby, 6 Cush. (Mass.) 314; Bolton v. Nitz, 88 Mich. 354, 50 N. W. 291; People v. Brown, 2 Doug. (Mich.) 9; State v. Findley, 101 Mo. 217, 14 S. W. 185; Haines v. Dennett, 11 N. H. 180; Church v. Howard, 17 Hun (N. T.) 5; Chappell v. Spencer, 23 Barb. (N. Y.) 584; Thompson v. Massie, 41 Ohio St. 307; Hartley v. Corboy, 150 Pa. 23, 24 Atl. 295; Miller v. Gilleland, 19 Pa. 119; Sanders v. Bagwell, 37 S. C. 145, 15 S. E. 714, 16 S. B. 770, affirming 32 S. C. 238, 10 S. E. 946, 7 L. R. A. 743; Frazier v. Gains, 61 Tenn. 92; Cudahy Packing Co. v. Shepard (Tex. Civ. App. 1904) 82 S. W. 786; St. Albans Bank v. Dillon, 30 Vt. 122, 73 Am. Dec. 295; Walla Walla County v. Ping, 1 Wash. T. 339; State v. Sureties, 4 Wyo. 347, 34 Pac. 3; Angle v. Northwestern Life Ins. Co., 92 U. S. 330, 23 L. Ed. 556; Miller v. Stewart, 4 Wash. C. C. (U. S.) 26, Fed. Cas. No. 9,591; 40 Cent Dig. col. 1840. 112 Ziegler v. Hallahan, 131 Fed. 205, 66 0. C. A. 1, affirming (C. C.) 126 Fed. 788. 158 CREDITOR AND SURETY. (Ch. 5 and the principal, wHich would have no effect so far as their respective rights and liabilities are concerned, will terminate conclusively the liability of the surety. As has been shown, the creditor, in order to be prejudiced by transactions between himself and the principal, must have knowledge of the rela- tion; 113 and the surety remains liable if he consents to any arrangement made between the creditor and the principal. 114 This leaves for consideration here the question whether a change in the contract is material or not, for an immaterial al- teration does not affect the liability of the surety. 115 Spoliation. A distinction first must be made between alteration and what is designated as "spoliation." 116 A change made by a third party without the knowledge of the creditor, 117 such as the alteration of a stolen bond by a thief, 118 or by one who is merely a custodian, 119 will not affect the liability of a sure- ty thereon; but the contract will be enforced as it was orig- inally. So, if the change has been made by the creditor him- self by accident, his rights will not be affected; 120 but, if the alteration was intentional, a restoration to its original form will not revive the liability of the surety. 121 The actual intent with which the alteration has been made is not material, so far as the liability of the surety is concern- ed; 122 nor will the courts consider whether the alteration us Ante, § 102. n* Ante, § 105. us See note 200, infra. ii« Anderson v. Bellenger, 87 Ala. 334, 6 South. 82, 4 L. R. A. 680, 13 Am. St. Rep. 46; Brooks v. Allen, 62 Ind. 401; Murray, v. Gra- ham, 29 Iowa, 520; Brown v. Weatherby, 71 Mo. 152; Evans v. Williamson, 79 N. C. 86; Rhoads v. Frederick, 8 Watts (Pa.) 448; Hill v. Calvert, 1 Rich. Eq. (S. C.) 56; Harrison v. Turbeville, 2 Humph. (Tenn.) 242. ii7 Boyd v. McConnell, 10 Humph. (Tenn.) 68. Where the credit- or could not read, and the change was made without his knowledge, his rights were not affected. Bucklen v. Huff, 53 Ind. 474. us Force v. Elizabeth, 28 N. J. Eq. 403. ii» State ex rel. Jackson Tp. v. Berg, 50 Ind. 496. 120 Nevins v. De Grand, 15 Mass. 436. i3i American Casualty Ins. Co. of Oneonta v. Green, 178 N. Y. 580, 70 N. E. 1094, affirming 70 App. Div. 267, 75 N. Y. Supp. 407. 122 Hart v. Clouser, 30 Ind. 210; Marsh v. Griffin, 42 Iowa, 402; § 107) DISCHARGE BY ALTERATION OP THE CONTRACT. 159 has been of benefit to the surety or not. 123 While in many cases an alteration is clearly for the benefit of the surety, in other cases it might be difficult to determine, and the only safe rule to be followed is that every alteration is prejudicial. 124 Besides, whether beneficial or not, the altered contract is not the surety's contract, and he should not be compelled to per- form a contract which he has not made, without giving him some choice in the matter. 126 He cannot be charged upon the altered contract, because it is not his; nor can he be charged upon the original contract, for that contract no long- er exists. 126 Alteration by One Party Does Not Affect Rights of Others. As the liability of a surety can be affected by the act of the person only who seeks to enforce the contract, it might happen that a change in a contract would have the effect of freeing the surety from liability as to some, but not as to oth- ers. Such would be the case in a bond given to secure the performance of a building contract, and to protect the em- ployes of the contractor. A change in the building contract, to which the owner of the building consents, might take away Jones v. Bangs, 40 Ohioi St. 139, 48 Am. Rep. 664; Neff v. Horner, 63 Pa. 327, 3 Am. Rep. 555. Wood v. Steele, 6 Wall. (U. S.) 80. 123 Anderson v. Bellenger, 87 Ala. 334, 6 South. 82, 4 L. R. A. 680, 13 Am. St. Rep. 46; Taylor v. Johnson, 17 Ga. 521; Weir Plow Co. v. Walmsley, 110 Ind. 242, 11 N. E. 232; McGuire v. Wooldridge, 6 Rob. (La.) 47; Board of Com'rs of Renville County v. Gray, 61 Minn. 242, 63 N. W. 635; Bangs v. Strong, 7 Hill (N. Y.) 250, 42 Am. Dec. 64; Berks County Com'rs v. Ross, 3 Bin. (Pa.) 520, 5 Am. Dec. 383; United States v. Tillotson, 25 U. S. (12 Wheat.) 180, 6 L. Ed. 594, reversing 1 Paine (TJ. S.) 305, Fed. Cas. No. 16,524; Ziegler v. Halla- han, 131 Fed. 205, 60 C. C. A. 1, affirming (C. C.) 126 Fed. 788; Home v. Brumskill, L. R. 3 Q. B. D. 495. In Massachusetts the surety is not discharged by an alteration which cannot prejudice him, such as a reduction of interest. CAMBRIDGE SAVINGS BANK v. HYDE, 131 Mass. 77, 41 Am. Rep. 193. 12* Toomer v. Dickerson, 37 Ga. 428; Mayhew v. Boyd, 5 Md. 102, 59 Am. Dec. 101; Smith v. Rice, 27 Mo. 505, 72 Am. Dec. 281; Grant v. Smith, 46 N. Y. 93; Church v. Howard, 17 Hun (N. Y). 5. las Chadwick v. Eastman, 53 Me. 12; Neff v. Horner, 63 Pa. 327, 3 Am. Rep. 555; WOOD v. STEELE, 6 Wall. (U. S.) 80, 18 L. Ed. 725; CALVERT v. LONDON DOCK CO., 2 Keen, 628. 126 John A. Tolman Co. v. Hunter, 113 Mo. App. 671, 88 S. W. 160 CBEDITOR AND SURETY. (Ch. 5 the right of the owner to hold the surety liable for a breach of the contract, but could not affect the rights of the employes, who had not participated in the alteration. 127 Alterations by Law. The rule that a surety is discharged by an alteration in the contract is not affected by the fact that the change has been made by law. 128 If the nature of the duties of a public office are changed by the Legislature, a surety will be dis- charged, 129 as in the case of a private officer, if the nature of the duties are changed, or if the term of office be extended. 180 Where a recognizance provided for the appearance of the prin- cipal at the next regular term of court, and at a subsequent term there was an agreement between him and the state af- fecting this condition, this will discharge the sureties. 181 Negligence Facilitating Alteration. The rule that a surety will be discharged by an alteration of the contract is subject to the exception that he will remain liable if he has been negligent and the altered instrument gets into the hands of a purchaser for value without notice. 132 Thus, where a note for $500, signed by a surety, contained spaces both before and after the amount, and the word "twen- ty" was written in one and "fifty" in the other, changing the amount to $2,550, the surety was estopped to show the altera- tion. 138 Alterations of Negotiable Instruments. The courts were formerly more strict in regard to altera- tions than they are in modern times, treating alterations as i2T Doll v. Crume, 41 Neb. 655, 59 N. W. 806; UNITED STATES v. NATIONAL SURETY CO., 92 Fed. 549, 34 C. C. A. 526. i2s a surety 'is discharged, though the alteration be made by- order of court. Appeal of Shearer, 96 Pa. 61; Sage t. Strong, 40 Wis. 375. 128 Manufacturers' Nat. Bank of City of Newark v. Dickerson, 41 N. J. Law, 448, 32 Am. Rep. 237; Mumford v. Railroad Co., 2 Lea (Tenn.) 393, 31 Am. Rep. 616; Pybus v. Gibb, 6 El. & Bl. 902. i3o See ante, § 91, i, and note 217, infra. isi Reese v. United States, 9 Wall. (U. S.) 13, 19 L. Ed. 541; United States v. Backland (C. C.) 33 Fed. 156. 182 Blakey v. Johnson, 76 Ky. (13 Bush.) 197, 26 Am. Rep. 254. 133 Hackett v. First Nat. Bank, 114 Ky. 193, 70 S. W. 664. § 107) DISCHARGE BT ALTERATION OF THE CONTRACT. 161 material which would not be classed so now. 184 The courts always have been, and are now, more strict in regard to ne- gotiable instruments than with other classes of contracts, as negotiable instruments have many of the characteristics of a circulating medium, and any changes which might affect the identity of an instrument would facilitate fraud. 185 A ma- terial alteration discharges a surety, even as against a pur- chaser for value without notice, 136 unless the surety has been negligent. Change of Place of Performance. A change as to the place of performance is a material altera- tion, 187 as it is the duty of the surety to perform or see that the principal performs, and, if the place be changed without his consent, his duties may be increased. 188 Change of Date or Time. A change in the time of payment 139 is material, as would be a change in the date of an instrument, 140 if the time of performance is calculated from the date, as the time of per- formance would be changed thereby. 141 If the time of per- formance is made to occur at an earlier date, the surety would be called upon to perform sooner than he intended. If the 134 Pigot's Case, 11 Coke, 27. is b Newlan v. Harrington, 24 III. 206. 136 Norton, Bills & Notes (3d Ed.) p. 246. 1st Pelton v. San Jacinto Lumber Co., 113 Cal. 21, 45 Pac. 12; Pahlman v. Taylor, 75 111. 629; Townsend v. Wagon Co., 10 Neb. 615, 7 N. W. 274, 35 Am. Rep. 493; Nazro v. Puller, 24 Wend. (N.' Y.) 374; Soutbwark Bank v. Gross, 35 Pa. 82. A guarantor is not discharged by the removal of the business of the principal to an- other place, although the guaranty describes the principal as residing in the former place. Rouss v. King, 69 S. C. 168, 48 S. B. 220. las Woodworth v. Bank, 19 Johns. (N. Y) 420, 10 Am. Dec. 239; United States v. Boecker, 21 Wall. (U. S.) 652, 22 L. Ed. 472. 1 39 Stayner v. Joice, 82 Ind. 35. And see post, § 108, as to an extension of the time of payment discharging a surety. »» Wyman v. Yeomans, 84 111. 403; Britton v. Dierker, 46 Mo. 591, 2 Am. Rep. 553; Bank of Commonwealth v. McChord, 4 Dana (Ky.) 191, 29 Am. Dec. 398; Miller v. Gilleland, 19 Pa. 119; Stephens v. Graham, 7 Serg. & R. (Pa.) 505, 10 Am. Dec. 485; WOOD v. STEELE, 6 Wall. (U. S.) 80, 18 L. Ed. 725. 1*1 Brannum, Lumber Co. v. Pickard (1904) 33 Ind. App. 484, 71 N. E. 676. Childs' Suretyship— 11 162 CREDITOR AND SURETY. (Ch. 5 time of performance is postponed, the statute of limitations would not begin to run as soon, and he is prejudiced. 142 Change as to Amount. A change of amount is material, 143 whether the amount be made greater 144 or smaller,* or if an amount be inserted where none existed before. 145 If a surety undertakes to be- come liable for advances of money to be made to the principal, "at no time exceeding $5,000," the surety will not be liable for any sum if the advances at any time exceed that amount, for the surety might suppose that the principal possessed sufficient ability to handle that sum, but no greater sum ; 14S but, if the intention of the surety was to limit his own liability to a cer- tain amount, advances to the principal to a greater amount will not relieve the surety to the extent of the amount named. 147 Nor is it a defense, where a guaranty for a certain amount is given, that a smaller credit was extended to the principal; otherwise, the principal, by refusing to avail himself of the full amount of his credit, eould prevent any liability attaching to the guarantor. 148 Changes as to Interest. A change in the rate 14 * or in the time of payment of in- terest, or adding or erasing a provision for the payment of 1*2 Miller v. Gilleland, 19 Pa. 119. "3 Sans v. People, 3 Gilman (111.) 327; Portage County Branch Bank v. Lane, 8 Ohio St. 405; ELLESMBRE BREWING CO. v. COOPER, [1896] 1 Q. B. D. 75. i4* Sage v. Strong, 40 Wis. 575. * An indorsement of a pretended partial payment on an instru- ment at the time of its delivery will discharge a surety thereon. Johnston v. May, 76 Ind. 293. 146 People, to Use of Buffington, v. Organ, 27 111. 27, 79 Am. Dec. 391. 146 Farmers' & Mechanics' Bank of Michigan v. Evans, 4 Barb. (N. Y.) 487. And see Ryan v. Shawneetown, 14 111. 20. 147 Clagett v. Salmon, 5 Gill & J. (Md.) 314; Curtis v. Hubbard, 6 Mete. (Mass.) 186; Rouss v. King, 69 S. C. 168, 48 S. E. 220; Parker v. Wise, 6 Maule & S. 239. 148 Lindsay v. Parkinson, 5 Ir. L. R. 124. 149 Increasing the rate of interest discharges a surety. Thompson- v. Massie, 41 Ohio St. 307; Sanders v. Bagwell, 37 S. C. 145, 15 S. § 107) DISCHARGE BT ALTERATION OF THE CONTRACT. 163 interest, 100 or changing the time when interest is to begin, 161 is material. Changes in Names. The addition 1B2 or erasure 1BS of signatures is a material alteration. If the name of the payee of a promissory note be changed, it affects its identity ; and a surety thereon would not be liable. 1 " A change in the name of a place may be a material altera- tion. Thus, where a guaranty of the payment of goods was E. 714, 16 S. E. 770, affirming 32 S. O. 238, 10 S. E. 946, 7 L. E. A. 743. So does a reduction in the rate. Price v. Dime Bank, 124 111. 317, 15 N. E. 754, 7 Am. St. Rep. 367; Contra, CAMBRIDGE SAV- INGS BANK v. HYDE, 131 Mass. 77, 41 Am. Rep. 193. loo Glover v. Robbins, 49 Ala. 219, 20 Am. Rep. 272; Franklin Life Ins. Co. v. Courtney, 60 Ind. 134; Marsh v. Griffin, 42 Iowa, 403; Locknane v. Emmerson, 74 Ky. (11 Bush) 69; Waterman v. Vose, 43 Me. 504; Fay v. Smith, 1 Allen (Mass.) 477, 79 Am. Dec. 752; Dewey v. Reed, 40 Barb. (N. Y.) 16; Jones v. Bangs, 40 Ohio St. 139, 48 Am. Rep. 664; Fulmer v. Seitz, 68 Pa. 237, 8 Am. Rep. 172; Neff v. Horner, 63 Pa. 327, 3 Am. Rep. 555; 40 Cent. Dig. col. 1845. i5i Coburn v. Webb, 56 Ind. 96, 26 Am. Rep. 15. 152 Crandall v. Auburn Bank, 61 Ind. 349; Berryman v. Manker, 56 Iowa, 150, 9 N. W. 103; Rumley Co. v. Wilcher, 23 Ky. Law Rep. 1745, 66 S. W. 7; Chadwick v. Eastman, 53 Me. 12; Wallace v. Jewell, 21 Ohio St. 163, 8 Am. Rep. 48; Gardner v. Walsh, 5 El. & Bl. 82. There is some conflict on this point, but the rule as stated is the decided weight of authority. See Stearns, Law of Suretyship, p. 105. The addition of the name of a surety, where there was pre- viously but one surety, would be beneficial to the former, as his liability is shared; but the addition of the name of a surety, where there are two or more previously, might affect their right of contribu- tion. In Boyd v. Agricultural Ins. Co., 20 Colo. App. 28, 76 Pac. 986, it was held that additional signatures procured before delivery of the instrument, was not an alteration; and in the case of the bonds of public officers it seems that, on the ground of public policy, each surety Impliedly consents to the signatures of additional sureties. Governor, to Use of Thomas, v. Lagow, 43 111. 134. Where signa- tures are added without the knowledge of the creditor, and he has nothing to put him on inquiry, all of the sureties are liable. WARD v. HACKETT, 30 Minn. 150, 14 N. W. 578, 44 Am. Rep. 187. 163 state ex rel. Board of Com'rs of La Porte County v. Van Pelt, 1 Smith (Ind.) 118; Mitchell v. Burton, 2 Head. (Tenn.) 613; Smith v. United States, 2 Wall. (U. S.) 219, 17 L. Ed. 788. is* Bell v. Mahin, 69 Iowa, 408, 29 N. W. 331; Robinson v. Berry- man, 22 Mo. App. 509. 164 CREDITOR AND SURETY. (Ch. 5 addressed "to any person in Macon," and "Griffin" was insert- ed in place of "Macon," the guarantor could not be Held lia- ble. 1BS The following changes were held to be material : Adding 156 or erasing 1Br a provision for payment in gold; erasing or adding the word "surety"; 16S making the liability of a party that of a surety instead of a guarantor, 159 or changing a con- ditional guaranty into an absolute one ; 160 adding words of negotiability to a nonnegotiable note; 161 adding 162 or re- moving 163 a seal; changes affecting the liability of the par- ties, 164 and abrogating a clause providing for a release. 166 Alteration of Contract Secured. It does not make any difference, in the application of the rule, whether the alteration is made in the contract of surety- ship itself, or in the contract which the contract of suretyship is intended to secure. An alteration of the contract secured will free the surety from liability; 166 but, if two contracts lea Johnson v. Brown, 51 Ga. 498. 156 Hanson v. Crawley, 41 Ga. 303; Darwin v. Kippey, 63 N. O. 318; Bogarth v. Breedlove, 39 Tex. 561. 157 Church v. Howard, 17 Hun (N. Y.) 5. 158 Bobinson v. Reed, 46 Iowa, 219. 159 Robinson v. Reed, 46 Iowa, 219. ioo Newlan v. Harrington, 24 111. 206. isi Haines v. Dennett, 11 N. H. 180. lea Fred Heim Brewing Co. v. Hazen, 55 Mo. App. 277. The ad- dition of a seal gives a different legal character to the writing, and changes the remedies upon it. DAVIDSON v. COOPER, 13 Mees. & W. 343. lea Organ v. Allison, 68 Tenn. (9 Baxt) 459. 164 Warren v. Fant, 79 Ky. 1. Making a joint and several con- tract a joint one only is a material alteration. Bckert v. Louis, 84 Ind. 99. This might be regarded as ah immaterial alteration in those states where joint contracts have been made joint and several by statute. 165 Paine v. Jones, 76 N. Y. 274; Id., 14 Hun (N. Y.) 577. ioo Boberts v. Donovan, 70 Cal. 108, 9 Pac. 180, 11 Pac. 599; Clark v. Gerstley, 26 App. D. C. 205; Guthrie v. Carpenter, 162 Ind. 417, 70 N. E. 486; American Casualty Ins. Co. v. Green, 178 N. Y. 580, 70 N. E. 1094, affirming 70 App. Div. 267, 75 N. Y. Supp. 407; Staf- ford v. Christian (Tex. Civ. App. 1904) 79 S. W. 595; United States v. Corwine, 1 Bond (U. S.) 339, Fed. Cas. No. 14,871; HOLME v. BRUNSKILL (1877) L. R. 3 Q. B. D. 495; POLAK v. EVERETT § 107) DISCHAEGE BT ALTERATION OF THE CONTRACT. 165 are secured, an alteration of one will not discharge a surety as to the other. 167 Nor will he be discharged by some matter which is collateral to the contract which the surety has under- taken shall be performed. Thus, where a bond has been given to secure the fidelity of service of a clerk, a subsequent arrangement between the employer and employe that service should be terminable at three months' notice, instead of one, will not terminate the surety's liability. 168 It might be other- wise, however, if that had been an express term in the con- tract of employment, and the contract of employment had been incorporated by reference in the contract of suretyship. So, where a provision in the contract is for the sole benefit of the obligee, he may waive a compliance therewith without affect- ing the surety's liability. 169 Changes in Building Contracts. If a contractor enters into a contract for the erection of a building, and gives a bond for its faithful performance, a surety thereon will not be liable if an alteration be made, ei- ther in the bond or in the contract which the bond was in- tended to secure. 170 If an alteration be made in the bond, it (1876) L. E. 1 Q. B. D. 669. A change in a contract to run a tunnel from around a hill to through the hill will discharge a surety therefor. City of Middletown v. JEtna Indemnity Co., 97 App. Div. 344, 90 N. Y. Supp. 16. So a surety for an account is discharged by the creditor taking a note bearing higher interest and providing for attorney fees. Casey-Swasey Co. v. Anderson (Tex. Civ. App. 1904) 83 S. W. 840. And where an agreement to lease 30 cows is chang- ed by an arrangement whereby 28 are leased part of the year, and 32 for the other part. WHITCHER v. HALL, 5 Barn. & C. 269. . 167 Park & Lacy Co. v. White River Lnmb. Co., 110 Cal. 658, 43 Pac. 202. les SANDERSON v. ASTON (1873) L. R. 8 Exch. 73. 169 American Surety Co. v. San Antonio Loan Co. (Tex. Civ. App. 1906) 98 S. W. 387. Where a contract for the purchase of strawber- ries was entered into, to be paid for on delivery, a surety for the pur- chasers was held liable, although several installments of straw- berries were delivered without being paid for. The provision for payment was for the benefit of the seller, and he was not obliged to insist on cash payment on the delivery of each installment; Kirby v. Studebaker, 15 Ind. 45. 170 McCONNELL v. POOR, 113 Iowa, 133, 84 N. W. 968, 52 L. R. A. 312. And see, post, § 122, as to the performance of the contract. 166 CREDITOR AND STJRETT. (Ch. 5 ceases to be the bond made by the surety. 171 If an alteration be made in the building contract, it ceases to be the contract to secure the performance of which the bond was given, and a breach of the contract as altered does not come within the provisions of the surety's contract. Changes in a building contract, which impose an additional duty upon the contractor, will release a surety upon the con- tractor's bond. 172 So, if the building contract provides for payment in installments by the owner to the contractor as the building progresses toward completion, the payment of an installment in advance would release the sureties, 173 as the incentive of the contractor to perform his contract within the time provided for in the contract is thus taken away. 174 An independent collateral agreement between the owner and the contractor, making definite some clauses of the building contract, but not changing such clause, is not an alteration. Changes in Contracts of Employment. Where a bond has been given to secure the faithful per- formance of a contract of employment, and a material change is made in such contract of employment, a surety on the bond will not be liable for a default by the employe. 176 Such a change may be made in the duties, or in the remuneration, or it may be in some other term of the contract. 176 Changes in "i See note 126, supra. iT2 If the contract is changed by a provision that the contractor is to build an additional story, a surety is discharged. Judah v. Zimmerman, 22 Ind. 388. "sLawhon v. Toors, 73 Ark. 473, 84 S. W. 636; Glenn County v. Jones, 146 Cal. 518, 80 Pac. 695; Backus v. Archer, 109 Mich. 666, 67 N. W. 913; Simonson v. Grant, 36 Minn. 439, 31 N. W. 861; Evans v. Graden, 125 Mo. 72, 28 S. W. 439; Board of Commissioners v. Branham (C. C.) 57 Fed. 179. • I" CALVERT v. LONDON DOCK CO., 2 Keen, 628. 175 Roberts v. Donovan, 70 Cal. 108, 9 Pac. 180, 11 Pac. 599; Os- borne v. Van Houten, 45 Mich. 444, 8 N. W. 77. 176 Boston Hat Manufactory v. Messinger, 2 Pick. (Mass.) 223; Gass v. Stinson, 2 Sumn. (TJ. S.) 453, Fed. Cas. No. 5,260. A change in the territory within which the employe was to work would dis- charge a surety. White Sewing Mach. Co. v. Mullins, 41 Mich. 339, •1 N. W. 196; Miller v. Stewart, 9 Wheat. (U. S.) 680, 6 L. Ed. 189. § 107) DISCHARGE BY ALTERATION OF THE CONTRACT. 167 the principal's duties will relieve the surety from liability, 177 unless the new duties are within the scope of his original em- ployment, or the right to make such changes is reserved in the contract. 178 The addition of new duties, the original duties not being changed, will not affect the liability of a surety, 170 unless the new duties interfere with the proper performance of the original ones ; nor does the rule apply to a public offi- cer, as such officer enters upon his duties without a contract. 180 Any change in the compensation of an employe, or in the time 1S1 or manner 182 of ascertaining his compensation, is such an alteration as will relieve a surety, if the compensa- tion was fixed by the contract of employment for which the surety became bound. 188 Where an agent was required under his contract to make i" Stevens v. Partridge, 109 111. App. 486; First Nat. Bank of Baltimore v. Gerke, 68 Md. 449, 13 Atl. 358, 6 Am. St. Bep. 453; Manufacturers' Nat Bank of City of Newark v. Dickerson, 41 N. J. Daw, 448, 32 Am. Rep. 237; National Mechanics' Banking Ass'n v. Conkling, 90 N. Y. 116, 43 Am. Rep. 146, affirming 24 Hun (N. Y.) 496; Mumford v. Railroad, 2 Lea (Tenn.) 393, 31 Am. Rep. 616. its Howe Sewing Mach. Co. v. Layman, 88 111. 39. "9 SAINT v. WHEELER, 95 Ala. 362, 10 South. 539, 36 Am. St. Rep. 210; Eastern R. Co. v. Loring, 138 Mass. 381; Home Savings Bank v. Traube, 75 Mo. 199, 42 Am. Rep. 402; City of New York v. Kelly, 98 N. Y. 468, 50 Am. Rep. 699; Harrisburg Savings & Loan Ass'n v. United States Fidelity & Guaranty Co., 197 Pa. 177, 46 Atl. 910; American Telephone Co. v. Lennig, 139 Pa. 595, 21 Atl. 162. Sureties for the trustee of a lodge are not discharged from liability because the membership changes and the duties of the trustee are increased thereby. Coombs v. Harford, 99 Me. 426, 59 Atl. 529. i8o Sacramento County Snp'rs v. Bird, 31 Cal. 67; Nichols v. Mac- Lean, 101 N. Y. 528, 5 N. E. 347, 54 Am. Rep. 730. isi MORRISON v. ARNOS, 65 Minn. 321, 68 N. W. 33. 18 2 Germania Fire Ins. Co. v. Lange, 193 Mass. 67, 78 N. E. 746; Bagley v. Clarke, 7 Bosw. (N. Y.) 94. A surety for an officer is re- leased if the principal's remuneration is changed from a salary to a commission. Northwestern R. R. Co. v. Whinray, 10 Exch. 77. 18 3 A surety is not discharged if the pay of the principal is chang- ed, without changing the contract of employment for which the surety became bound. SAINT v. WHEELER, 95 Ala. 362, 10 South. 539, 36 Am. St. Rep. 210; Menard v. Davidson, 3 La. Ann. 480; Amicable Mut. Life Ins. Co. v. Sedgwick, 110 Mass. 163; Frank v. Edwards, 8 Welsb. H. & G. 214. 168 CREDITOR AND SURETY. (Ch. 5 weekly reports of the business transacted by him, a failure by his employer to require such reports would relieve a surety upon the agent's bond. 184 Changes in Leases. A change made in the covenants of a lease will relieve a surety thereon. 186 Where a lease provided that the lessee should be given possession upon a certain day, a guarantor of the rent will not be liable if, by another agreement between the lessor and lessee, possession was to be given upon the completion of certain improvements. 186 A guarantor of the rent to become due under a lease is not released by an agree- ment between the lessor and lessee which is collateral to the lease, such as an agreement that the improvements made by the lessee may be applied on rent. 187 That would be equiva- lent to payment by the lessee and a purchase of the improve- ments by the landlord, and does not change any of the terms of the lease. The assignment of a lease by the lessee does not release a guarantor of the rent, even though the lessor accepts rent from the assignee, as the assignment does not release the lessee from his liability for the rent. 188 Changes in Terms of Sale. Guaranties of contracts of sale cannot be enforced, if any change has been made in the subject-matter, 189 in the price, or other terms of the sale. The guarantor of the price of a steam engine and two boilers of a given capacity cannot be held liable for the price of an engine with three boilers of is* Singer Mfg. Co. v. Boyette (1905) 74 Ark. 600, 86 S. W. 673, 109 Am. St. Rep. 104; Fidelity Mut. Life Ass'n v. Dewey, 83 Minn. 389, 86 N. W. 423, 54 L. R. A. 945. 185 White v. Walker, 31 111. 422; Grant v. Smith, 46 N. Y. 95; Nichols v. Palmer, 48 Wis. 110, 4 N. W. 137. A reduction of rent will discharge a guarantor therefor. Penn v. Collins, 5 Rob. (La.) 213; so will a change in the number of tenants. Prior v. Kiso, 81 Mo. 241. 188 Farrar v. Kramer, 5 Mo. App. 167. is? Morrill v. Baggott, 157 111. 240, 41 N. H. 639. 188 Grammes v. Trust Co., 147 III. 634, 35 N. B. 820, 37 Am. St. Rep. 248; Stein v. Jones, 18 111. App. 543; Way v. Reed, 6 Allen (Mass.) 364; Hunt v. Gardner, 39 N. J. Law, 530; Damb v. Hoffman, 3 E. D. Smith (N. Y.) 361; Almy v. Greene, 13 R. I. 350. 189 a guarantor for the payment of money will not be liable if §107) DISCHARGE BY ALTERATION OF THE CONTRACT. 169 greater capacity and for an additional price. 190 So, if the time for which credit is given is changed, the guarantor will not be liable. 191 Changes in Bonds. Where a dispute was referred by agreement to certain nam- ed arbitrators, sureties upon a bond given to secure the per- formance of the award would not be liable if two new arbitra- tors were added, although a majority of the original arbitra- tors concurred in the award. 192 Where bonds are given in the course of judicial proceed- ings for the purpose of securing a certain object, any change made in the course of procedure as named in the bond will discharge the sureties. If new parties are added, 198 or if there be a discontinuance as to some of the parties, 194 it is an alteration. 195 So, if the bond has been entered into with the expectation that the matter in controversy would he de- termined by a court of competent jurisdiction, the sureties will not be liable if the matter be settled in some other way, 196 as by reference to arbitration. 197 An amendment to a cause of action, which has the effect of changing such cause of ac- tion, will release sureties. 198 Any change in the amount, or in the time of payment, will have a like effect. 199 goods are delivered, instead of money. Wright v. Johnson, 8 Wend. (N. Y.) 512. lao Grant v. Smith, 46 N. Y. 93. i9i Dodge v. Meyer, 61 Cal. 405; Henderson v. Marvin, 31 Barb. (N. Y.) 297; Leeds v. Dunn, 10 N. Y. 469. i»2 Mackay v. Dodge, 5 Ala. 388. 193 Furness v. Read, 63 Md. 1. i94Tarver v. Nance, 5 Ala. 718; Shimer v. Hightshue, 7 Blackf. (Ind.) 238; Harris v. Taylor, 3 Sneed (Tenn.) 536, 67 Am. Dec. 576. 195 Richards v. Storer, 114 Mass. 101; Smith v. Roby, 6 Heisk. (Tenn.) 546. 196 Johnson v. Flint, 34 Ala. 673; Osborn v. Hendrickson, 6 Cal. 175; Baker v. Frellsen, 32 La. Ann. 822. 197 Pirkins v. Rudolph, 36 111. 306; Bean v. Parker, 17 Mass. 591; Moore v. Bowmaker, 3 Price, 214. i98i,angley v. Adams, 40 Me. 125; Willis v. Crooker, 1 Pick. (Mass.) 204; Post v. Shafer, 63 Mich. 85, 29 N. W. 519; Sage v. Strong, 40 Wis. 575; Hyer v. Smith. 3 Cranch, O. C. (U. S.) 437, Fed. Cas. No. 6,979. 199 Leonard v. Gibson, 6 111. App. 503. 170 CREDITOR AND SURETY. (Ch. 5 Immaterial Alterations. » As has been said, an alteration, in order to have the effect of discharging a surety, must be material; 200 but it does not rest with the party making the alteration to decide whether or not it is material. 201 Any change which neither adds to nor takes away from the obligation of the surety will not re- lease him ; 202 nor will a change made to make the instru- ment conform to the intention of the parties. 203 DISCHARGE BY EXTENSION OF TIME TO PRINCIPAL. 108. An extension of the time of payment or performance, given by the creditor or obligee to the principal, will discharge a surety from liability for snch payment or performance; provided: (a) The creditor or obligee has knowledge of the relation. 200 Humphreys v. Crane, 5 Cal. 173; Hunt v. Adams, 6 Mass. 519; Bullock v. Taylor, 39 Mich. 137, 33 Am. Rep. 356; Brown v. Straw, 6 Neb. 536, 29 Am. Rep. 369; Blair v. Bank of Tennessee, 11 Humph. (Tenn.) 84. 201 United States v. Case, Fed. Cas. No. 14,743. 202 Rudesill v. County Court, 85 III. 446; Western Building & Loan Ass'n v. Fitzmaurice, 7 Mo. App. 283; Kinney v. Schmitt, 12 Hun (N. Y.) 521; Hand Mfg. Co. v. Marks, 36 Or. 523, 52 Pac. 512, 53 Pac. 1072, 59 Pac. 549. A guaranty signed by one person began, "We hereby guaranty." A change of "we" to "I" would be an immaterial alteration. Kline v. Raymond, 70 Ind. 271. The following, also, were regarded as immaterial: Adding the exact consideration after the words "for value received." Gardiner v. Harback, 21 111. 129. Inserting a name in the body of the instrument. State ex rel. Mc- carty v. Pepper, 31 Ind. 76; Smith v. Crooker, 5 Mass. 538. Chang- ing the name of the payee in a promissory note from one firm name to another, the partnership being the same in each case. Arnold v. Jones, 2 R. I. 345. An interlineation which more accurately de- scribed the property designated. Rowley v. Jewett, 56 Iowa, 492, 9 N. W. 353. Erasing a forged name. York County Mut. Fire Ins. Co. v. Brooks, 51 Me. 506. Adding the word "agent" to the signa- ture of a promissory note. Manufacturers' & Merchants' Bank v. Follett, 11 R. I. 92, 23 Am. Rep. 418. Adding attesting witnesses to principal's signature. Heard v. Merritt, 121 Ga. 437, 49 S. E. 292. Procuring the signature of a witness. Hall v. Weaver (C. C.) 34 Fed. 104. 2os Mattingly v. Riley, 20 Ky. Law Rep. 1621, 49 S. W. 799; Ames v. Colburn, 11 Gray (Mass.) 390, 71 Am. Dec. 723. § 108) DISCHARGE BT EXTENSION OF TIME. 171 (b) The surety does not consent. (e) The extension is given for a consideration. (d) The extension is for a definite time. (e) The creditor or obligee does not reserve his rights against the surely. (f) The surety has no security. Reason of the Rule. The rule that an extension, given by the creditor to the principal, will discharge a surety on the contract, 204 might re- 204 Everett v. United States, 6 Port. (Ala.) 166, 30 Am. Dec. 584; King v. State Bank, 9 Ark. (4 Eng.) 185, 47 Am. Dec. 739; Capital Savings Bank v. Beel, 62 Cal. 419; Deming v. Norton, Kirby (Conn.) 397; Clark v. Gerstley, 26 App. D. C. (D. C.) 205; Bowen v. Darby, 14 Fla. 202; Randolph v. Fleming, 59 Ga. 776; Dodgson v. Hender- son, 113 111. 360; Flynn v. Mudd, 27 111. 323; Post v. Losey, 111 Ind. 74, 12 N. E. 121, 60 Am. Rep. 677; Kelly v. Gillespie, 12 Iowa, 55, 79 Am. Dec. 516; Rose v. Williams, 5 Kan. 483; Clark v. Patton, 27 Ky. (4 J. J. Marsh.) 33, 20 Am. Dec. 203; Allison v. Thomas, 29 La. Ann. 732; Thomas v. Stetson, 59 Me. 229; Clagett v. Salmon, 5 Gill & J. (Md.) 314; Guild v. Butler, 127 Mass. 386; Todd v. Green- wood School Dist., 40 Mich. 294; SMITH v. SHELDEN, 35 Mich. 42, 24 Am. St. Rep. 529; Travers v. Dorr, 60 Minn. 173, 62 N. W. 269; Meggett v. Baum, 57 Miss. 22; Stillwell v. Aaron, 69 Mo. 539, 33 Am. Rep. 517; Dillon v. Russell, 5 Neb. 484; Grafton Bank v. Wood- ward, 5 N. H. 99, 20 Am. Dec. 566; MURRAY v. MARSHALL, 94 N. Y. 611; Ducker v. Rapp, 67 N. Y. 464; Jenkins v. Daniel, 125 N. C. 161, 34 S. E. 239, 74 Am. St. Rep. 632; Miller v. Spain, 41 Ohio St. 376; Appeal of Grayson, 108 Pa. 581; Uhler v. Applegate, 26 Pa. <2 Casey) 140; Smith v. Tunno, 1 McCord, Eq. (S. C.) 443, 16 Am. Dec. 617; Apperson v. Cross, 52 Tenn. (5 Heisk.) 481; First Nat. Bank of Victoria v. Skidmore (Tex. Civ. App. 1895) 30 S. W. 564; Baskin v. Godbe, 1 Utah, 28; Peake v. Dorwin, 25 Vt. 28; Hill v. Bull, Gilmer (Va.) 149; Glenn v. Morgan, 23 W. Va. 467; MOULTON v. POSTEN, 52 Wis. 169, 8 N. W. 621; Uniontown Bank v. Mackey, 140 U. S. 220, 11 Sup. Ct. 844, 35 L. Ed. 485; POOLEY v. HARRI- DINE, 7 El. & Bl. 431; 40 Cent. Dig. col. 1856. In Maryland, New Jersey, and England, where the principal and surety are co-makers of a note, the defense is allowed in a court of equity only. Yates v. Donaldson, 5 Md. 389, 61 Am. Dec. 283; An- thony v. Fritts, 45 N. J. Law, 1 ; Manley v. Boycott, 2 El. & Bl. 46. If a mortgagee extends the time of payment by agreement with a grantee of the mortgaged premises who has assumed the debt, the original mortgagor is discharged. ' Paine v. Jones, 76 N. Y. 274, Id., 14 Hun (N. Y.) 577. An extension given to the principal will dis- charge one who has mortgaged his property to secure the debt. 172 CREDITOR AND SURETY. (Ch. 5 suit from the fact that an extension of time is an alteration of a very material term in the contract, namely, the time of payment or performance. 206 The contract, as extended, is a new one, to which the surety is not a party, and the rule as laid down in the preceding section would apply; but there are additional reasons why an extension of time will discharge a surety. The law gives a surety, who has been compelled to make payment on account of the default of the principal, the right to collect whatever he has paid from the principal, 208 and the surety is not obliged to wait until requested to make payment, but may pay as soon as the debt is due, and proceed against the principal. If the creditor and principal make an Diehl v. Davis (Kan. 1907) 88 Pac. 532; METZ v. TODD, 36 Mich. 473; Bank of Albion v. Burns, 46 N. Y. 170; Ayres v. Wattson, 57 Pa. (7 P. F. Smith) 360. Or one who has pledged property. Home Nat. Bank of Chicago v. Waterman, 30 111. App. 535, affirmed 134 111. 461, 29 N. E. 503; Price v. Dime Savings Bank, 124 111. 317, 15 N. E. 754, 7 Am. St. Rep. 367; Burnap v. National Bank, 96 N. Y. 125. If a buyer of property has assumed a debt of his seller, an ex- tension of the time of payment of the debt, given to the buyer, will discharge the seller. Calvo v. Davies, 73 N. Y. 211, 29 Am. St. Rep. 130, affirming 8 Hun (N. Y.) 222; Brill v. Hoile, 53 Wis. 537, 11 N. W. 42. So an extension given to a partner who has assumed the indebtedness of the firm will discharge the others. Leithauser v. Baumeister, 47 Minn. 151, 49 N. W. 660, 28 Am. St. Rep. 336; Mil- lerd v. Thorn, 56 N. Y. 402; Dodd v. Dreyfus, 17 Hun (N. Y.) 600; Id., 57 How. Prac. (N. Y.) 319. A guarantor will be discharged by an extension given to his prin- cipal. Gross v. Parrott, 16 Cal. 143; White v. Ault, 19 Ga. 551; White v. Walker, 31 111. 422; Hurd v. Marple, 10 111. App. (10 Bradw.) 418; Springer Lithographing Co. v. Graves, 97 Iowa, 39, 66 N. W. 66; Dixon v. Spencer, 59 Md. 246; Bishop v. Eaton, 161 Mass. 496, .37 N. E. 665, 42 Am. St. Rep. 437; Challenge Corn Planter Co. v. Diel, 92 Hun, 165, 36 N. Y. Supp. 364; Barnett v. Wing, 62 Hun, 125, 16 N. Y. Supp. 567; Rutherford v. Brachman, 40 Ohio St. 604; Camp- bell v. Baker, 46 Pa. (10 Wright) 243; Robinson v. Dale, 38 Wis. 330; Russell v. Perkins, 1 Mason (U. S.) 368, Fed. Cas. No. 12,160; 25 Cent. Dig. col. 152. So will an indorser. Inge v. Bank of Mobile, 8 Port. (Ala.) 108; McGuire v. Woolbridge, 6 Rob. (La.) 47; Veazie v. Carr, 3 Allen (Mass.) 14; Siebeneck v. Anchor, 111 Pa. 187, 2 Atl. 485; Bank of United States v. Hatch, 6 Pet. (U. S.) 250, 8 L. Ed. 387. See post, c. VII, note 143, that an extension, granted by one co-surety to the principal, will take away the right to contribution. 205 see, note 139, supra. 2°« See post, § 154. § 108) DISCHARGE BY EXTENSION OF TIME. 173 agreement extending the time of payment, and the surety ten- ders payment to the creditor, the creditor would have no right to receive it, as he, by his own agreement, has postponed the time. If the creditor refuses to receive payment from the sure- ty when tendered, the right of the surety to recover from the principal is postponed, 207 and in the meantime the financial abil- ity of the principal might change. If the surety could pay at the time the debt was due originally, he might recover from a solvent principal ; but delay may render the principal insolvent, and the surety would be injured, and the law does not require the surety to take risks of this character. If the creditor should accept payment from the surety when tendered, and the surety then should seek indemnity from the principal, the principal could say that by the new agreement the time of payment had been extended, and he could not be called upon to pay until the expiration of the additional time. 208 This would have the same effect, as to possible insolvency of the principal, as in the former case. An extension of time is equivalent to pay- ment by the principal, and a new loan made to the principal by the creditor. Payment of the debt by the principal would discharge the surety; 209 and the latter is not a party to, nor bound by, the subsequent transaction. An extension given to the principal by one co-obligee, which is the act of all the co-obligees, will discharge a surety for the debt. 210 Benefit to Surety. As in the case of an alteration, 211 it is immaterial that the extension appears to be for the benefit of the surety, 212 that the delay will enable the principal to pay the debt, while he was unable to meet the obligation at maturity, and, had the extension not been granted, the surety would have been called 207 Waters v. Simpson, 7 111. 570; Davis v. People, 6 111. 409. 2os ENGLISH v. DARLEY, 2 Bos. & P. 61 ; SAMUELL v. HO- WARTH, 3 Mer. 272. 209 See post, §132. 210 Clark v. Patton, 4 J. J. Marsh. (Ky.) 33, 20 Am. Dec. 203. 2ii See note 123, supra. 212 Hallock v. Yankey, 102 Wis. 41, 78 N. W. 156, 72 Am. St. Rep. 861; United States v. Hillegas, 3 Wash. C. C. 70, Fed. Cas. No. 15,366; Greenwood v. Francis [1899] 1 Q. B. 312. 174 CREDITOR AND SURETY. (Ch. 5 upon for payment. The fact nevertheless remains that the con- tract, as extended, is not his contract, and the courts will not speculate whether a surety has been benefited or not, but will presume injury. 218 Every person has the right to make his own contracts in his own way, so long as they are legal, and no one else has a right to make them for him without his con- sent. 214 Extension by Arbitrators. If controversies in regard to the contract for which a surety is liable are submitted to arbitration by the creditor and prin- cipal, and the award makes the time of payment at a later date than that provided in the contract, the suretv no longer will be liable. 216 Continuance of Suits against Principal. After the creditor brings suit against the principal, a surety may be discharged by a continuance given to the principal; 216 but every ordinary stipulation, during the litigation, extending time, will not affect the liability of the surety. Extension by Legislative Enactment. There is a conflict whether a statutory extension of time granted to the principal will discharge a surety. In some jurisdictions it is held that a state cannot modify a contract between the state and a citizen without the consent of the lat- ter. 217 In other jurisdictions the extension is regarded as or- aisCalvo v. Davies, 73 N. T. 211, 29 Am. Rep. 130; Rathbone v. Warren, 10 Johns. (N. T.) 587. Where the contract of the sureties iwas that they should pay within one month after demand, they did not become liable until demand; and any dealing between the prin- cipal and creditor which extended the time, where the time expired before demand, the sureties were not discharged. PRENDERGAST v. DEVBY, 6 Madd. 124. It has been held, in a few cases, that a surety is not discharged by an extension for a less period than a judgment could have been recovered against the principal. Fletcher v. Gamble, 3 Ala. 335; Barker v. McClure, 2 Blackf. (Ind.) 14; Gardner v. Van Norstrand, 13 Wis. 543; HULMB v. COLES, 2 Sim. 12. 21* SAMUELL v. HOWARTH, 3 Mer. 272 ; Rees v. Barrington, 2 Ves. Jr. 540. 215 Coleman v. Warde, 6 N. Y. 44. 2i6 Wybrants v. Lutch, 24 Tex. 309. 2it People v. McHatton, 7 III. 638; State, to Use of Carroll County, § 108) DISCHARGE BY EXTENSION OF TIME. 175 dinary legislation for the public good, which the sureties rnight naturally expect, 218 and not a contract with the prin- cipal, and his sureties remain liable ; that there is no considera- tion for a statutory extension, and the act is repealable. 218 Extension as to Part of Debt. A surety may be released as to a part only of the indebted- ness, 220 as would be the case of a debt payable in installments. An extension as to one installment will not affect the liability of the surety as to the other installments. 221 As to them he has the same right to make payment and collect from the principal as he had before. Knowledge of the Relation by Creditor or Consent by Surety. The effect of lack of knowledge 222 by the creditor of the existence of the relation of principal and surety, and of the effect of consent given by the surety, 223 has been made the subject of previous sections, and nothing will be said here as to those points. Extension Must Be by a Binding Agreement. In order that an extension may have the effect of discharg- ing a surety from liability, the agreement for an extension must be a binding one, 224 one that the principal can enforce v. Roberts, 68 Mo. 234, 30 Am. Rep. 788; Johnson v. Hacker, 55 Tenn. (8 Heisk.) 388; King County v. Ferry, 5 Wash. 536, 32 Pac. 538, 19 L. R. A. 500, 34 Am. St. Rep. 880; Pybus v. Gibb, 6 El. & Bl. 902; 40 Cent. Dig. col. 1864. 2is See ante, e. IV, note 44. 2ia State v. Carleton, 1 Gill (Mel.) 249; STATE, to Use of Holmes County, v. SWINNEY, 60 Miss. 39, 45 Am. Rep. 405; Worth v. Cox, 89 N. C. 44; Commonwealth v. Holmes, 25 Grat. (Va.) 7T1. 220 Robinson v. Dale, 38 Wis. 330. 221 Duckerv. Rapp, 67 N. Y. 464. 222 See ante, § 102. 223 See ante, § 105. 224 Williams v. Covillaud, 10 Cal. 419: Byers v. Hussey, 4 Colo. 515; Pridenberg v. Robinson, 14 Fla. 130; Grabf elder v. Willis, 10 111. App. (10 Bradw.) 330; Anderson v. Mannon, 46 Ky. (7 B. Mon.) 217; John M. Parker & Co. v. Guillot (La. 1907) 42 South. 782; Oberndorff v. Union Bank, 31 Md. 126, 1 Am. Rep. 31; Roberts v. Stewart, 31 Miss. 664; Rucker v. Robinson, 38 Mo. 154, 90 Am. Dec. 412; Lowman v. Yates, 37 N. Y. 601; Thayer v. King, 31 Hun (N. Y.) 437; Thompson v. Marshall, 2 Ohio Dec. 506; Brubaker v. 176 CREDITOR AND SURETY. (Ch. 5 against the creditor, and that ties the hands of the creditor, 225 or the surety cannot be prejudiced. The test whether an ex- tension is binding is whether an action could be maintained before the time of the alleged extension had expired. 226 If the creditor has annexed conditions to his agreement for an extension, such conditions must be performed fully before a surety can claim his discharge ; 227 but, to be binding, it is not requisite that the agreement for an extension be in any particular form, 228 and it is a matter of fact for the jury to determine whether an extension has been granted. 229 An extension procured by the fraudulent representation of the principal that the surety has consented thereto is not bind- ing, and the surety is not discharged. 230 If a specialty cannot be discharged by parol, it follows that an oral extension of a specialty will not discharge a surety thereon, as such agreement for an extension would not be binding. 231 Likewise an extension granted by an agent who Okeson, 36 Pa. (12 Casey) 519; White v. Summers, 60 Term. (1 Baxt) 154; Burke v. Cruger, 8 Tex. 66, 59 Am. Dec. 102; Creath v. Sims, 46 U. S. (5 How.) 192, 12 L. Ed. 110. The surety must show that the agreement for an extension was a binding one. Clark v. Gerst- ley, 26 App. D. C. (D. C.) 205. Mere indulgence, without a valid contract of extension, will not suffice. Barber v. Buggies, 87 S. W. 785, 27 Ky. Law Bep. 1077. 225 Berry v. Pullen, 69 Me. 101, 31 Am. Bep. 248; Hosea v. Bowley, 57 Mo. 357; McKecknie v. Ward, 58 N. Y. 541, 17 Am. Rep. 281. A notification by the creditor to the principal that if the "latter does not pay by a certain time he will be sued is not an extension. Nail v. Springfield, 9 Bush (Ky.) 673. 226 Howell v. Sevier, 1 Lea (Tenn.) 360, 27 Am. Rep. 771; MOUL- TON v. POSTEN, 52 Wis. 169, 8 N. W. 621. 227 Thorn v. Pinkham, 84 Me. 101, 24 Atl. 718, 30 Am. St. Rep. 335; Harnsberger's Ex'r v. Geiger, 3 Grat. (Va.) 144. 228 Lambert v. Shitler, 62 Iowa, 72, 17 N. W. 187; Lime Rock Bank v. Mallett, 42 Me. 349; Union Bank v. McClung, 9 Humph. (Tenn.) 98. 229 Brooks v. Wright, 13 Allen (Mass.) 72. 230 Dwinnell v. McKibben, 93 Iowa, 331, 61 N. W. 985; Bebout v. Fodle, 38 Ohio St. 500; McDougall v. Walling, 15 Wash. 78, 45 Pac. 668; 55 Am. St. Bep. S71. See note 240, infra. It is necessary that the creditor act promptly on discovery of the fraud, or he may be deemed to consent to the extension without the surety's consent. Burnap v. Robertson, 75 Ga. 689. asiCarr v. Howard, 8 Blackf. (Ind.) 190; DAVEY v. PRBNDER- § 108) DISCHARGE BY EXTENSION OF TIME. 177 has no such authority, as authority for collection only, would not be binding upon the creditor, and a surety on a note so intrusted to an agent would remain liable. 282 The extension must be voluntary, on the part of the cred- itor, in order to discharge a surety. If compulsory, as by an injunction obtained by the principal against the creditor, the rights of the latter are not affected. 233 The agreement to extend must be made with the principal. An agreement be- tween the creditor and a stranger will not discharge a sure- ty. 284 Thus, an agreement made by the holder of a bill of exchange to extend the time of payment, in consideration of another's agreement to see it paid, will not discharge the drawer of the bill. 285 Implied Extensions. An agreement for an extension may be implied. 238 The giving of a negotiable instrument by the principal, payable at a future time, whether in renewal of an old note, 237 or for any other indebtedness, 238 discharges a surety for the indebt- edness in its original form; 239 but a surety would not be discharged if the creditor has taken a note containing forged GRASS, 5 Barn. & Aid. 187. In some states a sealed instrument can be discharged by an oral agreement, and in such states a surety on a bond would be discharged by an oral extension. Leavitt v. Savage, 16 Me. 72. 232 Lawrence v. Johnson, 64 111. 351. 233 Hodges v. Gewin, 6 Ala. 478. 234 Clark v. Birley, 41 Ch. Div. 422. 235 it is not the law that a surety is discharged whenever the creditor has placed himself in a position in which it is against his interest to sue the principal. FRAZER v. JORDAN, 8 El. & Bl. 303. 236 Place v. Mcllvain, 38 N. Y. 96, 97 Am. Dec. 777. 23r Simmons v. Guise, 46 Ga. 473; Dixon v. Spencer, 59 Md. 246; First Nat. Bank v. Leavitt, 65 Mo. 562; Greene v. Bates, 74 N. Y. 333. 238 Bangs v. Mosher, 23 Barb. (N. Y.) 479; Armistead v. Ward, 2 Patt. & H. 504; Smith v. Crease, 2 Cranch, C. C. (TJ. S.) 481, Fed. Cas. No. 13,031; Clarke v. Henty, 3 Younge & C. Ch. 187. 239 Price v. Dime Sav. Bank, 124 111. 317, 15 N. E. 754, 7 Am. St. Rep. 367; Chickasaw County v. Pitcher, 36 Iowa, 593; Lee v. Sewall, 2 La. Ann. 940; Delaware, L. & W. R. Oo. v. Burkhard, 36 Hun (N. Y.) 57; Maier v. Canavan, 57 How. Prac. (N. Y.) 504; First Nat. Bank of Seattle v. Harris, 7 Wash. 139, 34 Pac. 466; Weed Sewing Mach. Co. v. Oberreich, 38 Wis. 325. Childs' Suretyship— 12 178 CREDITOR AND SURETY. (Ch. 5 signatures in renewal of the note for which the surety was liable, 240 as a binding agreement would not be effected. How- ever, a surety in such a case might be discharged if the cred- itor took no steps upon the discovery of the fraud perpetrated upon him. 241 The surety would not be discharged by the mere fact that the creditor took collateral security which matured after the debt for which the surety was liable, 242 as that would not im- ply necessarily an extension of time; nor would the fact that the principal has paid interest, even at a higher rate, 243 after the maturity of a note, indicate that an agreement for an extension had been made. 244 It might be simple forbear- ance on the part of the creditor; but taking interest in ad- vance raises a presumption that an agreement has been made to extend the time of payment during the time for which the interest has been paid, 245 but it is not conclusive. 210 Albright v. Griffin, 78 Ind. 182; HUBBARD v. HART, 71 Iowa, 668, 33 N. W. 233; Bangs v. Strong, 10 Paige (N. Y.) 11; Ritter v. Singmaster, 73 Pa. 400; First Nat. Bank of Athens v. Buchanan, 87 Tenn. (3 Pickle) 32, 9 S. W. 202, 1 L. R. A. 199, 10 Am. St. Rep. 617; Officer v. Marshall, 9 Tex. Civ. App. 428, 29 S. W. 246. See note 230, supra. Granting an extension upon receiving a bond with forged signatures of sureties thereon will not be binding upon the creditor. Lyttle v. Oozad, 21 W. Va. 183. 2" Kirby v. Landis, 54 Iowa, 150, 6 N. W. 173. And see Bur- nap v. Robertson, 75 Ga. 689. 242 German Ins. & Savings Inst. v. "Vahle, 28 111. App. 557; Merri- man v. Barker, 121 Ind. 74, 22 N. B. 992; Roberson v. Blevins, 57 Kan. 50, 45 Pac. 63; Brengle v. Bushey, 40 Md. 141, 17 Am. Rep. 586; Sigourney v. Wetherell, 6 Mete. (Mass.) 553; Noll v. Oberhell- mann, 20 Mo. App. 336; Remsen v. Graves, 41 N. Y. 471; Elwood v. Diefendorf, 5 Barb. (N. Y.) 398; Shubrick's Ex'rs v. Russell, 1 Desaus. (S. C.) 315 ; Pendexter v. Vernon, 9 Humph. (Tenn.) 84 ; Burke v. Cruger, 8 Tex. 66, 59 Am. Dec. 102; United States v. Hodge, 47 U. S. (6 How.) 279, 12 L. Ed. 437; 40 Cent. Dig. col. 1872. 2*3 Stearns v. Sweet, 78 111. 446. 2*4 Jarvis v. Hyatt, 43 Ind. 163. 240 Scott v. SafEold, 37 Ga. 384; Woodburn v. Carter, 50 Ind. 376; New Hampshire Savings Bank v. Colcord, 15 N. H. 119, 14 Am. Dec. 685; People's Bank v. Pearsons, 30 Vt. 711. See note 252, infra. An indorsement on an overdue note of a payment more than enough to pay accrued interest would not indicate necessarily an agree- ment for an extension. The surplus might have been paid on the principal debt. Vore v. Woodford, 29 Ohio St. 245. § 108) DISCHARGE BY EXTENSION OF TIME. 179 Consideration — Necessity. As an agreement without consideration is void, 240 and as an agreement for an extension, in order to release a surety, must be a binding one, it follows that an agreement for an extension, which is not supported by a consideration, will not discharge a surety. 247 A promise of delay, without more, given to the principal by the creditor, 248 would not prevent the creditor from proceeding immediately against the prin- cipal ; nor would it prevent the creditor from accepting pay- ment, if tendered by the surety. Consideration — Sufficiency. The actual payment of interest in advance, 249 or giving a note in advance for the interest, 200 would be a sufficient con- 2*8 Clark, Contracts (2d Ed.) p. 110. 2« SAINT v. WHEELER, 95 Ala. 362, 10 South. 539, 36 Am. St. Rep. 210; Hazard v. White, 26 Ark. 155; Bowling v. Chambers, 20 Colo. App. 113, 77 Pac. 16; Fridenberg v. Robinson, 14 Fla. 130; Bonner v. Nelson, 57 Ga. 433; Glickauf v. Hirschorn, 73 111. 574; Waters v. Simpson, 7 111. (2 Gilman) 570; Lindeman v. Rosenfleld, 67 Ind. 246, 33 Am. Rep. 79; Byers v. Harris, 67 Iowa, 685, 25 N. W. 879; Eaton v. Whitmore, 3 Kan. App. 760, 45 Pac. 450; Brinagar's Adm'r v. Phillips, 40 Ky. (1 B. Mon.) 283, 36 Am. Dec. 575; Huie v. Bailey, 16 La. 213, 35 Am. Dec. 214; Leavitt v. Savage, 16 Me. (4 Shep.) 72; Oberndorff v. Union Bank, 31 Md. 126, 1 Am. Rep. 31; Jennings v. Chase, 10 Allen (Mass.) 526; Newell v. Hamer, 5 Miss. (4 How.) 684, 35 Am. Dec. 415; Regan v. Williams, 185 Mo. 620, 84 S. W. 959, 105 Am. St. Rep. 600; Smith v. Mason, 44 Neb. 610, 63 N. W. 41; Hoyt v. French, 24 N. H. (4 Foster) 198; Meginnis v. Nightingale, 34 N. J. Law, 461; Olmstead v. Latimer, 158 N. Y. 313, 53 N. E. 5, 43 L. R. A. 685; Gahn v. Niemcewicz, 11 Wend. (N. Y.) 312; Van Rensselaer v. Kirkpatrick, 46 Barb. (N. Y.) 194; Farmers' Bank of Canton v. Raynolds, 13 Ohio, 84; Schlussel v. Warren, 2 Or. 17; Zane v. Kennedy, 73 Pa. (23 P. F. Smith) 132; Ashton v. Sproule, 35 Pa. (11 Casey) 493; Parnell v. Price, 3 Rich. Law (S. C.) 121; Benson v. Phipps (Tex. Civ. App.) 28 S. W. 359; Joslyn v. Smith, 13 Vt. 353; Hunter's Adm'r v. Jett, 4 Rand. (Va.) 104; Fay v. Tower, 58 Wis. 286, 16 N. W. 558; McLemore v. Powell, 12 Wheat. (U. S.) 554, 6 L. Ed. 726; 40 Cent. Dig. col. 1909. 248 Jones v. Cottrell (Iowa, 1906) 109 N. W. 793; John M. Parker & Co. v. Guillot (La. 1907) 42 South. 782. A stay of execution will not discharge a surety. Houston v. Hurley, 2 Del. Ch. 247; Miller v. Porter, 24 Tenn. (5 Humph.) 294. See post, I 127. 249 Scott v. Saffold, 37 Ga. 384; Maher v. Lanfrom, 86 111. 513; 2bo Robtnson v. Miller, 2 Bush. (Ky.) 179. 180 CREDITOR AND SURETY. (Ch. 5 sideration for an agreement to extend the time of payment, and a surety for the debt would be discharged ; but the mere acceptance of interest in advance, without an agreement to extend, would not discharge a surety, 251 though it would be prima facie evidence of an agreement to extend. 252 An agreement to pay an increased rate of interest 253 would be a sufficient consideration ; but the decisions are not harmonious whether an agreement to pay interest at the same or at a lower rate would be sufficient. 254 Some courts hold that by such an agreement the creditor has relinquished his right to demand payment, and has secured a valuable right in having his money placed at interest, and that the debtor has relin- quished the privilege of paying the debt at any time and stop- ping the interest; this constituting a consideration for the extension. 268 Other courts consider that the promise to pay interest is a promise to do what the debtor legally was bound Kaler v. Hise, 79 Ind. 301; Christner v. Brown, 16 Iowa, 130; Hub- bard v. Ogden, 22 Kan. 363; Lime Rock Bank v. Mallett, 34 Me. 547, 56 Am. Dec. 673; Dubuisson v. Folkes, 30 Miss. 432; Merchants' Ins. Go. of St. Joseph v. Hauck, 83 Mo. 21 ; New, Hampshire Savings Bank v. Colcord, 15 N. H. 119, 41 Am. Dec. 685; NATIONAL, EAGLE BANK v. HUNT, 16 R. I. 14,8, 13 Atl. 115; Gardner v. Gardner, 23 S. C. 588; Dunham v. Downer, 31 Vt. 249; Binnian v. Jennings, 14 Wash. 677, 45 Pac. 302; Glenn v. Morgan, 23 W. Va. 467. 2 6i McGlassen v. Tyrrell, 5 Ariz. 51, 44 Pac. 1088; Waters v. Simpson, 7 111. 570; Agricultural Bank, President, etc., of, v. Bishop, 72 Mass. (6 Gray) 317; Haydenville Savings Bank v Parsons, 138 Mass. 53; Morse v. Blanchard, 117 Mich. 37, 75 N. W. 93; American Nat. Bank v. Love, 62 Mo. App. 378; Gard v. Neff, 39 Ohio S^ 607; Bank of TJniontown v. Mackey, 140 V. S. 220, 11 Sup. Ct. 844, 35 L. Ed. 485. 252 Scott v. SafCold, 37 Ga. 384; Woodburn v. Carter, 50 Ind. 376; Coster v. Mesner, 58 Mo. 549. See note 245, supra. 253 Dodgson v. Henderson, 113 111. 360; Maher v. Lanfrom, 86 111. 513; Fawcett v. Freshwater, 31 Ohio St. 637. 254 See Stearns, Law of Suretyship, p. 117. Of course, an agree- ment to pay the interest already due would not be a sufficient con- sideration. Kerns v. Ryan, 26 III. App. 177; Dennis v. Piper, 21 111. App. 169; Halstead v. Brown, 17 Ind. 202; Wilson v. Powers, 130 Mass. 127. 255 Stallings v. Johnson, 27 Ga. 564; Dodgson v. Henderson, 113 111. 360; Hunt v. Postlewait, 28 Iowa, 427; Rumberger v. Golden, 99 Pa. 34; Calvert v. Good, 95 Pa. 65; Stone's River Nat Bank v. Walter, 104 Tenu. 11, 55 S. W. 301; Benson v. Phipps, 87 Tex. 578, § 108) DISCHARGE BT EXTENSION OF TIME. 181 to do without any agreement, and that it is not a sufficient consideration for an agreement for an extension. 256 There is also a lack of harmony in the decisions whether the pay- ment of, or an agreement to pay, usurious interest, is a suffi- cient consideration ; this lack of harmony resulting very large- ly from the effect of usury on the contract under the statutes of the various states. Most courts hold that if the usury be paid in advance, 257 or a note be given therefor, 258 a surety for the debt is discharged ; for, though the principal might take advantage of the usury, the creditor is bound. In other courts, the payment of usury being illegal, the agreement for an extension is not binding, and a surety for the debt remains liable. 259 If there be a promise only to pay usury, the surety is not discharged, 260 though the usury actually be paid after- wards. 261 29 S. W. 1061, 47 Am. St. Rep. 128; Parsons v. Harrold, 46 W. Va. 122, 32 S. E. 1002. 2 56 Abel v. Alexander, 45 Ind. 523, 15 Am. Rep. 270; Robinson v. Miller, 2 Bush. (Ky.) 179; Chute v. Pattee, 37 Me. 102; Wilson v. Powers, 130 Mass. 127; Fowler v. Brooks, 13 N. H. 240; Kellogg v. 01msted t 25 N. Y. 189; Reynolds v. Ward, 5 Wend. (N. Y.) 501. 2" Camp v. Howell, 37 Ga. 312; Myers v. First Nat. Bank, 78 111. 257; Lemmon v. Whitman, 75 Ind. 318, 39 Am. Rep. 150; Corielle v. Allen, 13 Iowa, 289; Wild v. Howe, 74 Mo. 551; Grafton Bank v. Woodward, 5 N. H. 99, 20 Am. Dec. 566; Church v. Maloy, 70 N. Y. 63; Billington v. Wagoner, 33 N. Y. 31; Scott v. Harris, 76 N. C. 205; Osborn v. Low, 40 Ohio St. 347; Mann v. Brown, 71 Tex. 241, 9 S. W. Ill ; Armistead v. Ward, 2P.4H. 504 ; Parsons v. Horrold, 46 W. Va. 122, 32 S. E. 1002; MOTJLTON v. POSTEN, 52 Wis. 169, 8 N. W. 621; Vary v. Norton (C. C.) 6 Fed. 808. 268 MOTJLTON v. POSTEN, 52 Wis. 169, 8 N. W. 621. 259p ra ther v. Gammon, 25 Kan. 379; Cornwell v. Holly, 5 Rich. Law (S. C.) 47; Howell v. Sevier, 1 Lea (Tenn.) 360, 27 Am. Rep. 771. 260 Cox v. Mobile Co., 37 Ala. 320; Green v. Lake, 2 Mackey (D. C.) 162; Wittmer v. Ellison, 72 111. 301; Hunt v. Postlewait, 28 Iowa, 427; Pyke's Adm'r v. Clark, 42 Ky. (3 B. Mon.) 262; Berry v. Pul- len, 69 Me. 101, 31 Am. Rep. 248; Roberts v. Stewart, 31 Miss. 664; First Nat. Bank of Charlotte v. Lineberger, 83 N. C. 454, 35 Am. Rep. 582; Hill v. Calloway, 1 Ohio Dec. 59; Neel v. Commonwealth (Pa. 1886) 7 Atl. 74; Cornwell v. Holly, 5 Rich. Law (S. C.) 47; Wilson v. Langford, 5 Humph. (Tenn.) 320; Payne v. Powell, 14 Tex. 600; Burgess v. Dewey, 33 Vt. 618; Meiswinkle v. Jung, 30 Wis. 361, 11 Am. Rep. 572; Contra, Parmelee v. Williams, 72 Ga. 42. 26i Howell v. Sevier, 1 Lea (Tenn.) 360, 27 Am. Rep. 771; Smith v. Hyde, 36 Vt. 303. L82 CREDITOR AND SURETY. (Ch. 5 A partial payment, at or after maturity, on the secured debt, 262 or the full payment of another debt which is due, 263 would not be sufficient consideration for an extension as to the balance, because it is the duty of the principal to pay, not only part, but all, of the debt, and a part payment would be but a partial performance of his legal duty ; but part pay- ment, however small, before maturity, 264 even one day be- fore, 265 is a sufficient consideration for an extension as to the balance, for the creditor has been benefited by the receipt and use of the money sooner than he had a legal right to ex- pect it. Giving additional security for the debt is a sufficient con- sideration for its extension. 266 So would be the waiver of a right by the debtor, such as his exemptions, 287 or his defense of bankruptcy. 268 Definite Time. As an agreement for an extension of time must be binding to effect the discharge of a surety, it follows that the exten- sion must be for a definite time. If a definite time be not fixed, 269 the creditor can proceed at once against the prin- 2 62 Hughes v. Southern Warehouse Co., 94 Ala. 613, 10 South. 133; King v. State Bank, 9 Ark. (4 Eng.) 185, 47 Am. Dec. 739; Edmonds v. Thomas, 41 111. App. 505; Davis v. Stout, 126 Ind. 12, 25 N. E. 862, 22 Am. St. Kep. 565; Ingels v. Sutliff, 36 Kan. 444, 13 Pac. 828; Roberts v. Stewart, 31 Miss. 664; Petty v. Douglass, 76 Mo. 70; Mathewson v. Strafford Bank, 45 N. H. 104; Halliday v. Hart, 30 N. Y. 474; Hall v. Bardwell, 1 C. P. Rep. 23; Yeary v. Smith, 45 Tex. 56. Payment of overdue interest would not be a sufficient consideration for an extension of time. See note 254, supra. 2 63 Solary v. Stultz, 22 Fla. 263; Beasley v. Boothe, 3 Tex. Civ. App. 98, 22 S. W. 255. as* Vestal v. Knight, 54 Ark. 97, 15 S. W. 17; Greely v. Dow, 2 Mete. (Mass.) 176; Newsam v. Finch, 25 Barb. (N. X.) 175; Whittle v. Skinner, 23 Vt. 531. 2 6 5 Uhler v. Applegate, 26 Pa. 140. 2 66 Semple v. Atkinson, 64 Mo. 504; Gardner v. Watson, 76 Tex. 25, 13 S. W. 39. 267 Semple v. Atkinson, 64 Mo. 504. 26 8 post v. Losey, 111 Ind. 74, 12 N. E. 121, 60 Am. Rep. 677. 269 King v. Haynes, 35 Ark. 463; Winne v. Colorado Springs Co., 3 Colo. 155; Woolfolk v. Plant, 46 Ga. 422; Field v. Brokaw, 148 111. 654, 37 N. E. 80; Waters v. Simpson, 7 111. (2 Gilman) 570; § 108) DISCHARGE BT EXTENSION OF TIME. 183 cipal, or accept payment from the surety, if tendered, without a violation of his agreement. An agreement by the creditor to wait "a while longer," 27 ° or "beyond the day of maturity," 271 would be too indefinite. An agreement to wait "until the fall" has been held to be definite, as the court takes judicial notice of the seasons, and would construe the expression as meaning until the 1st of Sep- tember ; 272 but an agreement to wait until "some time in summer," 273 or until "after harvest," 274 has been consider- ed too indefinite. It matters not for how short a time the ex- tension is given, 275 if it be definite. An extension for one day would suffice to discharge a surety. 276 An extension for "20 or 30 days" is held to be definite, as the creditor could not proceed against the principal for at least 20 days. 277 Reservation of Rights -Against Surety. If, at the time of granting an extension of time to the principal, the creditor expressly reserves his right to proceed Beach v. Zimmerman, 106 Ind. 495, 7 N. E. 237; Morgan v. Thomp- son, 60 Iowa, 280, 14 N. W. 306; Berry v. Pullen, 69 Me. 101, 31 Am. Rep. 248; Hayes v. Wells, 34 Md. 512; McGee v. Metcalf, 20 Miss. (12 Smedes & M.) 535, 51 Am. Dec. 122; Aultman v. Smith, 52 Mo. App. 351; Watts v. Gantt, 42 Neb. 869, 61 N. W. 104; Deal v. Cochran, 66 N. C. 269; Miller v. Stem, 2 Pa. 286; Parnell v. Price, 3 Rich. Law (S. C.) 121; Cherry v. Miller, 7 Lea (Tenn.) 305; Al- cock v. Hill, 4 Leigh (Va.) 622; Vary t. Norton (C. C.) 6 Fed. 808; 40 Cent. Dig. col. 1906. «o Jenkins v. Clarkson, 7 Ohio, 72. 27i Ward v. Wick, 17 Ohio St. 159. 272 Abel v. Alexander, 45 Ind. 523, 15 Am. Rep. 270. 273 Miller v. Stem, 2 Pa. 286. 27*Findley v. Hill, 8 Or. 247, 34 Am. Rep. 578: In MOTJLTON v. POSTBN, 52 Wis. 169, 8 N. W. 621, an agreement made in July to give an extension until after threshing was held to be definite, meaning until fall. 27BComegys v. Booth, 3 Stew. (Ala.) 14; Menifee v. Clark, 35 Ind. 304; Appleton v. Parker, 81 Mass. (15 Gray) 173; Sprigg v. Bank of Mt. Pleasant, 1 McLean (U. S.) 384, Fed. Cas. No. 13,257, affirmed 39 U. S. (14 Pet.) 201, 10 L. Ed. 419; 40 Cent. Dig., col. 1890. 276 SMITH v. SHELDEN, 35 Mich. 42, 24 Am. Rep. 529; Johnson v. Planters' Bank, 12 Miss. (4 Smedes & M.) 165, 43 Am. Dec. 480; Fellows v. Prentiss, 3 Denio (N. T.) 512, 45 Am. Dec. 484; Bangs v. Strong, 7 Hill (N. Y.) 250, 42 Am. Dec. 64; Weed Sewing Mach. Co. v. Oberreich, 38 Wis. 325. 277 Hamilton v. Prouty, 50 Wis. 592, 7 N. W. 659, 36 Am. Rep. 866. 184 CREDITOR AND SURETY. (Ch. 5 against the surety, the latter will not be discharged. 278 The effect of such an extension is to make it conditional upon the consent of the surety to remain bound; otherwise, the cred- itor is not to be considered as bound by his agreement for an extension. The condition upon which he has granted the extension to the principal has not been performed. Such an agreement does not prejudice the surety, as he has the right to withhold his consent, pay the debt at any time, and proceed at once against the principal. Surety Not Discharged If Indemnified. If a surety has been fully indemnified by his principal, he will not be discharged by an extension. 279 This has been placed upon the ground that he is not injured by the exten- sion; but this seems contrary to the rule that a surety is not to be bound by a contract which he has not made, although he is not injured thereby, or even may be benefited. 280 It has been placed, also, upon the ground that the surety, by receiv- ing indemnity, is placed in the position of a principal, 281 and ceases to possess the rights of a surety; but this seems in- consistent, unless there be an express agreement between the principal and the surety that the latter is to apply the security upon the indebtedness, for an indemnified surety is no more a principal than a secured creditor is regarded as paid. How- 278 Prout v. Branch Bank, 6 Ala. 309; Dupee v. Blake, 148 111. 453, 35 N. E. 867; First Bank of Biddeford v. McKenney, 67 Me. 272; Clagett v. Salmon, 5 Gill. & J. (Md.) 314; Kenworthy v. Saw- yer, 125 Mass. 28; Tobey v. Ellis, 114 Mass. 120; Bailey v. Gould, Walk. Ch. (Mich.j 478; Hunt v, Knox, 34 Miss. 655; Rucker v. Robinson, 38 Mo. 154, 90 Am. Dec. 412; Calvo v. Da vies, 73 N. Y. 211, 29 Am. Rep. 130; National Bank of Newburgh v. Bigler, 83 N. T. 51; First Nat. Bank of Charlotte v. Ianeberger, 83 N. C. 454, 35 Am. Rep. 582; Hagey v. Hill, 75 Pa. 108, 15 Am. Rep. 583; Morse v. Huntington, 40 Vt. 488; Exchange Bldg. & Inv. Co. v. Bayless, 91 Va. 134, 21 S. E. 279. Boston Nat. Bank of Seattle v. Jose, 10 Wash. 185, 38 Pac. 1026; Oriental Corp. v. Overend, 7 H. h. Cas. 348; 40 Cent. Dig. col. 2066. 279 Chilton v. Bobbins, 4 Ala. 223, 37 Am. Dec. 741; Crim v. Flem- ing, 101 Ind. 154; Kleinhaus v. Generous, 25 Ohio St. 667; Smith v. Steele, 25 Vt. 427, 60 Am. Dec. 376; 40 Cent. Dig. col. 1875. 2 80 see notes 123 and 212, supra. 28i Smith v. Steele, 25 Vt. 427, 60 Am. Dec. 376. § 108) DISCHARGE BT EXTENSION OF TIME. 185 ever, whether the reasons assigned be sufficient or not, the law is as stated. If the security given to the surety is not sufficient to in- demnify him, or proves to be worthless, 282 he will be discharg- ed by an extension ; and, if he has been discharged by an ex- tension, his liability will not revive if he afterwards receive indemnity from the principal as a matter of precaution. 283 Waiver of Defense. After a binding agreement for an extension has been made between the creditor and the principal, such as would en- title a surety to consider himself discharged from liability, he may waive his defense ; and if, with full knowledge of all of the facts, he promises to pay the debt, he will be deemed to have made such a waiver, 284 although he may have made the promise in ignorance of the legal effect of the exten- sion; 285 but he would not be bound by a promise made in ignorance of the fact that an extension had been granted. 286 Negotiable Instruments. A surety, discharged by an extension of time given to the maker of a promissory note, would be liable to a purchaser thereof for value without notice to the extent that he was originally liable; but if the agreement for an extension ap- peared upon the instrument itself, or was made after matur- ity, there could not be a valid claim of lack of notice. 282 Jones v. Ward, 71 Wis. 152, 36 N. W. 711. 28 3Kittenhouse v. Kemp, 37 Ind. 258. 2 84RockviIle Nat. Bank v. Holt, 58 Conn. 526, 20 Atl. 669, 18 Am. St. Eep. 293; First Nat. Bank of Monmouth v. Whitman, 66 111. 331; Hinds v. Ingham, 31 111. 400; Williams v. Boyd, 75 Ind. 286; Sigourney v. Wetherell, 6 Mete. (Mass.) 553; Porter v. Hoden- puyl, 9 Mich. 11; Fowler v. Brooks, 13 N. H. 240; Bramble v. Ward, 40 Ohio St. 267; First Nat. Bank of Black River Falls v. Jones, 92 Wis. 36, 65 N. W. 861; Smith v. Winter, 4 Mees. & W. 454. A surety's defense is not waived by receiving security thereafter from the principal. Rittenhouse v. Kemp, 37 Ind. 258; Fowler v. Brooks, 13 N. H. 240. ass See post, § 134. 286 Ellis v. Bibb, 2 Stew. (Ala.) 63; Montgomery v. Hamilton, 43 Ind. 451; Robinson v. Off cut, 23 Ky. (7 T. B. Mon.) 540; Gamage v. Hutchins, 23 Me. 565; Rochester Sav. Bank v. Chick, 64 N. H. 410, 13 Atl. 872; Fay v. Tower, 58 Wis. 286, 15 N. W. 558. See, also, 186 CREDITOR AND SURETY. (Ch. 5 TERMINATION OF LIABILITY BY EXPIRATION OP TIME. 109. Where a surety has agreed to be liable for a definite time, he cannot be held liable for defaults occurring after that time hag expired. ANNUAL OFFICES. 110. If a person becomes surety for an officer elected or ap- pointed annually, he cannot be held liable for any de- fault occurring after the year has expired, unless there be an express term in the contract to that effect. Contracts of suretyship may be made to cover a definite time, or they may be made to run indefinitely. Where the parties have made it clear in the contract as to the time dur- ing which the surety is to be liable, there is not much diffi- culty ; but, as is frequently the case, if the contract is worded so as to leave this matter in doubt, the strict rules of construc- tion apply, and the surety is favored. 287 If the contract of suretyship relates to some other contract, and the other con- tract expires at a stated time, the surety would not be liable for defaults occurring after the expiration of the other con- tract. Thus, where a partnership has been formed for a defi- nite time, a surety for the partners would not be liable for any defaults occurring after such term had expired, although the partnership is continued. 288 Likewise, a guaranty of West v. Ashdown, 1 Bing. 164. If a surety does not avail himself of his defense at the trial, the question cannot be raised on appeal. Wood v. Tunnicliff, 74 N. Y. 38. 287 See ante, § 91 (j). ass Small v. Currie, 5 De G., M. & G. 141. But it is held that sureties are not discharged because the charter of a corporation is extended, it being the same corporation. Exeter Bank v. Rogers, 7 N. H. 21; PEOPLE v. BACKUS, 117 N. Y. 196, 22 N. E. 759, Clark, Corp. (2d Ed.) p. 73, § 39. Contra, Thompson v. Young, 2 Ohio, 335. In Bank of Washington v. Barrington, 2 Pa. (2 Pen. & W.) 27, the charter of a bank was forfeited, and afterwards revived. Sureties for the cashier were not liable for any of his defaults oc- curing after the forfeiture. § 110) ANNUAL OFFICES. 187 the punctual payment of interest upon a bond payable 6 years and 6 months from date, with interest semiannually, applies to the installments falling due before the time of payment of the principal only, and not to interest accruing thereafter. 289 Where a surety signed a note payable 10 days after date, he could not be held liable for money advanced on the note after it became due. He was liable for the amount due at the end of 10 days only. 290 A surety on a lease is not liable for rent after the expiration. of the lease, 291 unless the contract shows an intention on his part to remain bound. 292 The liability of the sureties upon a bond of a tobacco manu- facturer, given pursuant to the United States revenue law, would not cease upon the expiration of the manufacturer's li- cense. The provision of the statute making a failure to pro- cure a license punishable was intended to protect the govern- ment, and was not designed for the benefit of sureties. 293 The rule that the surety's liability is terminated by expira- tion of time is the same, where the time is not fixed by dates, but relates to the accomplishment of a particular work. When the work is accomplished, a surety would be discharged with- out further action by him. Thus, where a detective was em- ployed to work up a murder case, and his salary and expenses were guarantied, a settlement of a bill for services at the time of the conviction of the suspect would terminate the liability of the guarantor, although the guaranty was not canceled for- mally. 294 Annual OMces. There has been considerable litigation in regard to con- tracts of suretyship for what is designated an "annual office" ; 28 9 Hamilton v. Van Rensselaer, 43 N. Y. 244. 2 80 Bank of Saint Albans v. Smith, 30 Vt. 148. 29i Brewer v. Thorp, 35 Ala. 9; Kyle v. Proctor, 7 Bush. (Ky.) 493; Fasnacht v. Winkelman, 21 La. Ann. 727; Brewer v. Knapp, 18 Mass. (1 Pick.) 332; Knowles v. Cuddeback, 19 Hun, 590; Gads- den v. Quackenbush, 9 Rich. Law (S. C.) 222. 292 Rice v. Loomis, 139 Mass. 302, 1 N. E. 548; Decker v. Gay- lord, 8 Hun, 110; Dufau v. Wright, 25 Wend. (N. Y.) 636; Deblois v. Earle, 7 R. I. 26. 293 United States v. Truesdell, 2 Bond (U. S.) 78, Fed. Cas. No. 16,543. 284 Blyth v. Pinkerton, 57 L. R. A. 468, 10 Wyo. 135, 67 Pac. 619. 188 CREDITOR AND SURETY. (Ch. 5 that is, where an officer, under the provisions of a statute, charter, or by-law, is to be elected or appointed for a stated period, not necessarily a year, but usually so. The period might be less than a year, or cover more than one year; 295 but the principle is the same, the point being that the term of office is for a fixed term. The rule is that a surety on the bond of such an officer cannot be held liable for any defaults occurring after the expiration of the term for which he was originally elected or appointed, 296 although the officer is re- elected or reappointed, 297 unless the bond expressly shows an intention on the part of the surety to remain liable for subse- quent terms. It makes no difference that the bond recites that the surety is to be 'bound "so long as he continues in office," or "until a successor is appointed." These expressions mean sim- ply that if, during the term for which the officer was originally elected, he should be removed, resign, or die, and a succes- sor should be elected or appointed to serve during the re- mainder of the unexpired term, the surety would not be lia- ble for any acts occurring after the removal or resignation. 298 295 In Allison v. State, 8 Heisk. (Tenn.) 312, the term was two years, and the sureties were held liable for that time, although the law required a bond every year. 2oe State v. Powell, 40 La. Ann. 241, 4 South. 447; Norridgewock v. Hale, 80 Me. 362, 14 Atl. 943 ; Chelmsford Co. v. Demarest, 73 Mass. (7 Gray) 1 ; Richardson School Fund v. Dean, 130 Mass. 242 ; Dover v. Twombly, 42 N. H. 59 ; Rahway v. Crowell, 11 Vroom, (N. J.) 207, 29 Am. Rep. 224 ; Peppin v. Cooper, 2 Barn. & Aid. 431. 297 Fresno Enterprise Co. v. Allen, 67 Cal. 505, 8 Pac. 59; Welch v. Seymour, 28 Conn. 387 ; Mutual Loan & Bldg. Ass'n v. Miles, 16 Fla. 204, 26 Am. Rep. 703 ; Rany v. Governor, 4 Blackf. (Ind.) 2 ; Ida County Sav. Bank v. Seidensticker, 102 N. W. 821, 128 Iowa, 54, 111 Am. St. Rep. 189 ; Bigelow v. Bridge, 8 Mass. 275 ; Lexington & W. C. R. Co. v. Elwell, 90 Mass. (8 Allen) 371 ; Savings Bank of Han- nibal v. Hunt, 72 Mo. 597, 37 Am. Rep. 449 ; Citizens' Loan Ass'n of City of Newark v. Nugent, 40 N. J. Law, 215, 29 Am. Rep. 230; Blades v. Dewey, 136 N. C. 176, 48 S. E. 627, 103 Am. St. Rep. 924; Harris v. Babbitt, 4 Dill. (U. S.) 185, Fed. Cas. No. 6,144. If an offi- cer neglects to file his bond, although prepared, and he is reappointed to the same office afterwards, and then files the bond, the sureties are not liable. Winneshiek County v. Maynard, 44 Iowa, 15. 2»8 Amicable Mut. Life Ins. Co. v. Sedgwick, 110 Mass. 163; Atkins v. Baily, 9 Yerg. (Tenn.) Ill ; United States v. Wright, 1 McLean (U. S.) 509, Fed. Cas. No. 509. § 110) ANNUAL OFFICES. 189 These expressions may shorten the time for which the sure- ty is to be held liable, but they will not extend it; nor would the surety be liable, even during the first term, if, after a vacancy, the original incumbent resumed the office. If an officer appointed for one year should resign at the end of three months, his successor should serve three months, and the orig- inal officer then should be reappointed for the remainder of the year, the sureties upon the bond that, he gave at the begin- ning of the year would not be liable for any of his acts occur- ring after his resignation, though they would have been liable for the entire year, had his service been continuous. The rule of construction applied is that the contract is to be construed according to the intention of the parties : and it is to be presumed that a surety contracted with reference to the Constitution, 299 the statute, or corporate by-law creating the office, that he had this fixed term in mind, 300 and that he intended hot to be bound indefinitely. 301 A person might be willing to assume the risk for one year, but could not intend to become liable for an indefinite number of years by the offi- cer succeeding himself year after year. Surety Liable Until Successor Qualifies. When it is said that the sureties are liable for a year only, an exact calendar year is not meant, necessarily; but it is construed to be an official year. As the term of office fre- quently is made to begin upon a certain week day, it would fol- low that a term might be a little longer than 365 days. Usu- ally an officer holds until his successor qualifies; and, unless there should be unreasonable delay in his successor qualifying, the sureties would be liable for all acts occurring up to the time the successor took charge. 302 289 State v. Wayman, 2 Gill & J. (Md.) 254. aoo Wilmington v. Horn, 2 Har. (Del.) 190. See ante, c. IV, note 38. aoi Kingston Mut. Ins. Co. v. Clark, 33 Barb. (N. T.) 196. 302 Montgomery v. Hughes, 65 Ala. 201; Board of Adm'rs v. Mc- Kowen, 48 La. Ann. 251, 19 South. 553, 55 Am. St Rep. 275 ; Chelms- ford Co. v. Demarest, 7 Gray (Mass.) 1 ; Thompson v. State, 37 Miss. 518 ; Long v. Seay, 72 Mo. 648 ; Baker City v. Murphy, 30 Or. 405, 42Pac. 133, 35 L. R. A. 88. In Danvers Farmers' Elevator Co. v. Johnson, 93 Minn. 323, 101 N. W. 492, where an officer held over, his sureties were held liable for a default committed within four month? 190 CREDITOR AND SURETY. (Ch. 5 Express Stipulation for Continued Liability. A surety may make himself liable for more than the orig- inal term, if he clearly indicates his intention to do so. If the language in the bond is to assume liability "during the time he shall continue in said office, whether of the present term for which he has been duly elected, or of any succeed- ing term to or for which he may be elected," it is broad and comprehensive enough to cover any number of terms ; sos but it is essential, even in such a case, that the terms be con- tinuous. 804 If an officer has been elected for one term, and after a vacancy he is re-elected, the surety could not be held for defaults occurring after the first term. Implied Stipulation for Continued Liability. A surety may be liable during subsequent terms, if at the time of the execution of the bond a statute is in force making sureties liable for subsequent terms. 306 As the rule of con- struction is based upon the intention of the parties, it is pre- sumed, unless expressly stated to the contrary, that a surety intends to become liable under the provisions of the statute ; * but the sureties upon the bond of a public officer will not be liable longer than the original term, if it be extended by the Legislature after the bond is given. 306 after the year expired ; and in Butler v. State, 20 Ind. 169, where an officer was elected to succeed himself, but neglected to qualify for his second term, the sureties remained liable. sos Coombs v. Harford, 99 Me. 426, 59 Atl. 529; People's Building & Loan Ass'n v. Wroth, 43 N. J. Law (14 Vroom) 70 ; Shackamaxon Bank v. Yard, 143 Pa. 129, 22 Atl. 908, 24 Am. St. Rep. 521 ; Augero v. Keen, 1 Mees. & W. 390. 804 Coombs v. Harford, 99 Me. 426, 59 Atl. 529; Middlesex Mfg. Co. v. Lawrence, 83 Mass. (1 Allen) 339. sos Treasurers of State v. Lang, 2 Bailey (S. C.) 430. Under a statute providing that an officer might be continued for another year, with his own consent and the approbation of the executive, his sure- ties were held liable for two years. Jacob v. Hill, 2 Leigh (Va.) 393. * See ante, § 91 (j). sos Brown v. Lattimore, 17 Cal. 93; Welch v. Seymour, 28 Conn. 387; Governor v. Lagow, 43 111. 134; Mullikin v. State, 7 Blackf. (Ind.) 77; Bigelow v. Bridge, 8 Mass. 275; Moss v. State, 10 Mo. 338, 47 Am. Dec. 116 ; Dover v. Twombly, 42 N. H. 59 ; Patterson v. Freehold, 38 N. J. Law, 255 ; State v. Mann, 34 Vt. 371. 80 Am. Dec. 688; King Co. v. Ferry, 5 Wash. 53G, 19 L. R. A. 500, 34 Am. St. §§ 111-112) CANNOT TERMINATE LIABILITY. 191 Offices not Annual. If there be no statute, rule, or by-law naming a fixed period during which an officer shall serve, and the language of the bond is broad enough to cover an indefinite time, a surety will be liable indefinitely, 307 although the formality of an appoint- ment occurs every year. The formal reappointments are not equivalent to filling a vacancy caused by the expiration of a term, but amount to a continuous retention in office; 308 nor does the fact that the officers who made the appointment held their office for a limited time make the term of their appointee expire with the expiration of their own terms, 309 - if the ap- pointee is not in the employ of such officers. Where the di- rectors of a bank were elected annually, and they appointed a clerk in the bank, who gave bond, the sureties upon the bond would be liable as long as the clerk continued in the employ of the bank, though a new board of directors should be elected afterwards. 310 SURETY LIABLE INDEFINITELY. 111. Unless a surety has restricted his liability to a definite time, by an express or implied term in his contract to that effect, he remains liable indefinitely. SURETY CANNOT TERMINATE HIS LIABILITY BY NO- TICE. 112. A surety who is bound indefinitely, or for a fixed period, cannot terminate his liability by notice, except: (a) A surety may terminate his liability by notice if he has reserved that right in his contract. Rep. 880 ; Miller v. Stewart, 9 Wheat. (U. S.) 680, 6 L. Ed. 189 ; Pep- pin v. Cooper, 2 Barn. & Aid. 431. Contra, Commonwealth v. Drewry, 15 Grat. (Va.) 1. 307 Dedham Bank v. Chickering, 3 Pick. (Mass.) 335; Daly v. Com- monwealth, 75 Pa. 331; Birmingham v. Wright, 16 A. & E. (N. S.) 623. See post, § 111. 308 Amherst Bank v. Root, 2 Mete. (Mass.) 522; Corporation of Ad- jala v. McElroy, 5 Ont. 580. See, however, Wapello Bank v. Colton (Iowa, 1907) 110 N. W. 450. 30 9 Humboldt Sav. Soc. v. Wennerhold, 81 Cal. 528, 22 Pac. 920. 3io Louisiana State Bank v. Ledoux, 3 La. Ann. 674. 192 CREDITOR AND SURETY. (Ch. 5 (b) A guarantor in. a continuing guaranty by notice to the creditor that he trill not be liable for future trans- actions, may limit his liability to advances or sales already made. (c) By statute, in some states, a surety, by notice, can in- struct the creditor to proceed at once against the prin- cipal; and, if the creditor fail to obey such instruc- tions, the surety will be discharged. SUCCESSIVE BONDS ARE CUMULATIVE. 113. Where an officer, after having given one bond, gives a second bond covering the same duties, the second one will be cumulative, and the sureties upon the first one trill remain liable, unless it is apparent that the sec- ond bond is intended to be substituted for the first. ADDITIONAL BONDS FOB SPECIAL DUTIES. 114. Where an officer gives a special bond to cover a particu- lar dnty, the sureties on his general bond will not be liable for a default in that particular duty, although the language of the general bond is broad enough to cover such particular duty. LIABILITY WHERE BONDS ARE GIVEN FOR SUCCES- SIVE PERIODS. 115. Where an officer gives bonds for successive periods, •with different sureties, the sureties upon the bond in force -when the default occurs will be liable. In the absence of proof, the default is presumed to have oc- curred while the last bond was in force. LIABILITY OF A SURETY FOR THE FIDELITY OF AN EMPLOYE IS TERMINATED BY DEFAULT. 116. Upon the default of an employe becoming known to his employer, a surety on his bond will not be liable for future defaults, unless the surety indicates a willing- ness to remain liable. § 116) LIABILITY TERMINATED BY DEFAULT. 193 It is always the privilege of a surety, by a stipulation in his contract, to restrict his liability to a fixed time, and, as has been seen in the preceding section, such a restriction may be implied in some cases ; but, unless the liability had been re- stricted by some express or implied term in the contract, a sure- ty becomes bound indefinitely, 311 and, unless the creditor or obligee consent, he cannot secure his release, however much he may desire it. A surety for an officer may see that officer falling into bad habits, and he may become very apprehensive ; but he must continue liable until the officer resigns, or is dis- charged, or is guilty of default. Nor can he procure his dis- charge because other sureties are dead or insolvent, and the sole liability is falling upon him. 312 If the surety is bound for a fixed period, he cannot ter- minate his liability during that period. 313 Termination of Liability by Notice. In most states, under the common law, a surety cannot ter- minate his liability by notice, unless he expressly has reserved that right in his contract; 31 * and where he has reserved that right, such notice must be clear and explicit, 315 and the right must be exercised in a reasonable manner. A surety on the bond of an employe, having a right to terminate his contract, must give the employer sufficient time to notify the principal, and enable the latter to arrange for a new bond, and the em- ployer cannot be required to discharge the employe instantly. 316 an SAINT v. WHEELER, 95 Ala. 362, 10 South. 539, 36 Am. St. Rep. 210 ; Humboldt Sav. Soc. v. Wennerhold (Cal. 1889) 20 Pac. 553 ; Sparks v. Farmers' Bank, 3 Del. Ch. 274 ; Union Bank of Maryland v. Ridgely, 1 Har. & G. (Md.) 324 ; Dedham Bank v. Cbickering, 3 Pick. (Mass.) 335 ; Crane v. Newell, 19 Mass. (2 Pick.) 612, 13 Am. Dec. 461 ; Greenawalt v. Kreider, 3 Pa. (3 Barr.) 264, 45 Am. Dec. 639 ; Phillips v. Bossard (D. C.) 35 Fed. 99 ; Calvert v. Gordon, 3 Man. & R. 124 ; 40 Cent. Dig. col. 1755. A surety on a lease from year to year has the same right to terminate his liability by notice that the lessee has. Desilver's Es- tate, 9 Phila. 302. 3i2 Ridgeway v. Potter, 114 111. 457, 3 N. E. 91, 55 Am. St. Rep. 875. sis Coe v. Vogdes, 71 Pa. 383. si* Pleasonton's Appeal, 75 Pa. 383 ; Gass v. Stinson, 2 Sumn. (U. S.) 453, Fed. Cas. No. 5,260. sis Lanusse v. Barker, 3 Wheat. (U. S.) 101, 4 L. Ed. 343. 316 La Rose v. Logansport Nat. Bank, 102 Ind. 332, 1 N. E. 805 ; Ohilds' Subetyship— 13 194 CREDITOR AND SURETY. (Cll. 5 Revocation of Continuing Guaranties. A continuing guaranty can be revoked at any time, so that the guarantor will not be liable for any credit extended after receipt of the notice by the creditor, 317 unless the considera- tion for the guaranty has been executed. Usually the con- sideration in the case of a continuing guaranty is concurrent with liability on the part of the guarantor, and is executory as to future transactions. As the consideration for a guaranty of sales or loans to be made to the principal is the fact that the creditor has altered his condition for the worse by parting with his goods or with his money, it follows that there is no consideration for a guaranty of the payment of the price of goods, or for the repayment of the loans, until the sales or loans actually are made; and the guarantor at any time can terminate his liabi\jty as to future transactions by giving no- tice. Continuing guaranties, which may be terminated by express notice, will be revoked, in certain cases, upon the happening of some event, 318 such as the death of the guarantor, 319 or, if the guarantors be partners under a firm name, a dissolution of the partnership. 320 Statutory Notice to Proceed Against Principal. Although, in most states, at common law a surety cannot re- quire the creditor to proceed against the principal, 821 stat- Reilly v. Dodge, 131 N. Y. 153, 29 N. E. 1011 ; Bostwick v. Van Voor- his, 91 N. Y. 353. 317 Gay v. Ward, 67 Conn. 147, 34 Atl. 1025, 32 L. R. A. 818; Con- duitt v. Ryan, 3 Ind. App. 1, 29 N. B. 160 ; Jeudevine v. Rose, 36 Mich. 54. This is so, whether a time limit has been named or not. Offord v. Davies, 12 J. Scott (N. S.) 748. 318 a guaranty is not terminated by a change of business by the principal. White's Bank of Buffalo v. Myles, 73 N. Y. 335, 29 Am. Rep. 157. sis See post, § 119. 320 See post, § 120. »2i Hefferlin v. Krieger, 19 Mont. 125, 47 Pac. 638; White v. Savage (Or. 1906) 87 Pac. 1040 ; Wofflngton v. Sparks, 2 Ves. 569 ; 40 Cent. Dig. col. 2038. In some states a request by the surety to the creditor to sue the principal will discharge the surety at common law, if the request be not complied with and the principal afterwards becomes insolvent. Thompson v. Robinson, 34 Ark. 44; Martin v. Skehan, 2 Colo. 614; § 116) LIABILITY TERMINATED BY DEFAULT. 195 utes have been enacted in many of them giving a surety such right by written notice, 322 and releasing the surety if the Colgrove v. Tallman, 67 N. T. 95, 23 Am. Rep. 90 ; PAIN v. PACK- ARD, 13 Johns. (N. Y.) 174, 7 Am. Dec. 369 ; Cope v. Smith, 8 Serg. & R. (Pa.) 110, 11 Am. Dec. 582 ; Hopkins v. Spurlock, 49 Tenn. (2 Heisk.) 152. In some of the states where this rule is followed the notice must be accompanied by a statement that the surety will not continue liable unless there be compliance therewith. Campbell v. Sherman, 151 Pa. 70, 25 Atl. 35, 31 Am. St. Rep. 735; Jackson v. Huey, 10 Lea (Tenn.) 184. The notice must be given after maturity of the debt, Fidler v. Hershey, 90 Pa. 363. And, in some states there must be an offer to indemnify against expenses. Huey v. Pinney, 5 Minn. 310 (Gil. 246) ; Dillon v. Russell, 5 Neb. 484. If the principal be a nonresident, the surety is not discharged by sueh common-law notice. Hightower v. Ogletree, 114 Ala. 94, 21 South. 934. Or if the principal be beyond the jurisdiction. Alcorn v. Commonwealth, 66 Pa. 172. Notice to sue may be given to one holding the claim for col- lection. Pickens v. Yarborough,26 Ala. 417, 62 Am. Dec. 728; Wet- zel v. Sponsler, 18 Pa. (6 Harris) 460. Or to the agent of a nonresi- dent. Thomas v. Mann, 28 Pa. (4 Casey) 520. But notice to an un- authorized agent would not be sufficient. Mutual Ins. Co. v. Davies, 12 Jones & S. (N. Y. Super. Ct.) 172. Nor would notice to a husband or wife of the creditor. Shimer v. Jones, 47 Pa. (4 Wright) 268. The common-law notice does not extend to any other action except suit against the principal. A surety would not be discharged by notice to the creditor to distrain. Brooks v. Carter, 36 Ala. 682 ; Ruggles v. Holden, 3 Wend. (N. Y.) 216. Nor to collect. Darby v. Berney Nat. Bank, 97 Ala. 643, 11 South. 881; Bates v. State Bank, 7 Ark. (2 Eng.) 394, 46 Am. Dec. 293 ; Coykendall v. Constable, 48 Hun, 360, 1 N. Y. Supp. 9, affirmed 117 N. Y. 627, 22 N. E. 1128 ; Weiler v. Hocb, 25 Pa. (1 Casey) 525 ; Parrish v. Gray, 20 Tenn. (1 Humph.) 88. Nor to "push." Singer v. Troutman, 49 Barb. (N. Y.) 182; Wilson v. Glover, 3 Pa. (3 Barr) 404. The common-law notice must be explicit and clear. Goodwin v. Simonson, 74 N. Y. 133 ; Lawson v. Buckley, 49 Hun, 329, 2 N. Y: Supp. 178 ; Shimer v. Jones, 47 Pa. (11 Wright) 268. A hint is not sufficient. Greenawalt v. Kreider, 3 Pa. (3 Barr) 264, 45 Am. Dec. 639. Nor is a desire. Savage's Adm'r v. Carleton, 33 Ala. 443. The common-law notice need not be written. Darby v. Berney Nat. Bank, 97 Ala. 643, 11 South. 881. A discharge of one co- surety by notice will not discharge another. Gordon v. Moore, 44 Ark. 349, 51 Am. Rep. 606 ; KLINGENSMITH v. KLINGENSMITH, 322 Bartlett v. Cunningham, 85 111. 22; Colerick v. McCleas, 9 Ind. 245 ; Stevens v. Campbell, 6 Iowa (6 Clarke) 538 ; Nichols v. McDow- ell, 53 Ky. (14 B. Mon.) 6 ; Bridges v. Winters, 42 Miss. 135, 97 Am. Dec. 443, 2 Am. Rep. 598; Petty v. Douglass, 76 Mo. 70; 40 Cent Dig. 2056. 196 CEEDITOE AND SURETY. (Ch. 5 creditor do not comply therewith. 823 Such statutes, being in derogation of common law, are construed strictly. Only those who are sureties in the strict and narrow sense of the word 324 can avail themselves of this statutory right; and it does not extend to indorsers, 325 nor to any sureties who are such by operation of law, 326 nor does the statute apply to unliquidated amounts. 327 Sufficiency of Notice. The notice must be given after the maturity of the debt, 328 and the evidence that it has been given must be clear. 329 It must be positive, and not ambiguous. 380 The surety must de- 31 Pa. 460. But see, contra, Towns v. Kiddle, 2 Ala. 194. At common law an indorser cannot terminate his liability by notice. TRIMBLE v. THORNB, 16 Johns. (N. T.) 152, 8 Am. Dec. 302 ; Stephens v. Mo- nongahela Bank, 88 Pa. 157, 32 Am. Rep. 438 ; Beebe v. West Branch Bank, 7 Watts & S. (Pa.) 375. Nor can a guarantor. Newcomb v. Hale, 90 N. Y. 326, 43 Am. Rep. 173 ; Wells v. Mann, 45 N. Y. 327, 6 Am. Rep. 93. See the following notes as to the requisites of statu- tory notice to sue. 323 Darby v. Berney Nat. Bank, 97 Ala. 643, 11 South. 881 ; Thomp- son v. Robinson, 34 Ark. 44; Bailey v. New, 29 Ga. 214; Fish v. Glover, 154 111. 86, 39 N. E. 1081 ; Barnes v. Mowry, 129 Ind. 568, 28 N. E. 535 ; Shenandoah Nat Bank v. Ayres, 87 Iowa, 526, 54 N. W. 367 ; Medley v. Tandy, 85 Ky. 566, 4 S. W. 308 ; Keirn v. Andrews, 59 Miss. 39 ; Petty v. Douglass, 76 Mo. 70 ; First Nat. Bank of Char- lotte v. Homesley, 99 N. O. 531, 6 S. E. 797 ; Clark v. Osborn, 41 Ohio St. 28; Bailey Loan Co. v. Seward, 69 N. W. 58, 9 S. D. 326; Thompson v. Watson, 10 Yerg. (Tenn.) 362 ; Sullivan v. Dwyer (Tex. Civ. App. 1897) 42 S. W. 355 ; Harrison's Ex'r v. Price, 25 Grat. (Va.) 553 ; Kittridge v. Stegmier, 11 Wash. 3, 39 Pac. 242 ; Gillilan v. Lud- ington, 6 W. Va. 128. 324 The statute applies to sureties proper, though not shown on the instrument to be such. Ward v. Stout, 32 111. 399 ; Hamrick v. Bar- nett, 1 Ind. App. 1, 27 N. E. 106 ; Meriden Silver Plate Co. v. Flory, 44 Ohio St. 430, 7 N. E. 753. 325 Boatmen's Sav. Bank v. Johnson, 24 Mo. App. 316. 3 26 Fish v. Glover, 154 111. 86, 39 N. E. 1081. 327 Kauffman v. Commonwealth (Pa.) 8 Atl. 600. 328 imming v! Fiedler, 8 111. App. 256; Scales v. Cox, 106 Ind. 261, 6 N. E. 622. See 40 Cent. Dig. col. 2052. 329 Bartlett v. Cunningham, 85 111. 22. ssoK'aufman v. Wilson, 29 Ind. 504; Moore v. Peterson, 64 Iowa, 423, 20 N. W. 744 ; Lockridge v. Upton, 24 Mo. 184 ; Porter v. First Nat. Bank, 54 Ohio St. 155, 43 N. E. 165. § 116) LIABILITY TERMINATED BY DEFAULT. 197 mand that the creditor resort to legal proceedings, 331 and not "hope" that he will do so ; 332 but it is not requisite that the notice be formal, if it be clear. 883 Waiver of Notice. The creditor may waive a written notice; 334 and he will be held to have done so if, upon receipt of an oral notice, he promises to sue. 335 Withdrawal of Notice. The surety may withdraw his notice, in which case his lia- bility continues. 336 A request from the surety, after having served a written notice, that the creditor indulge the princi- pal, will be equivalent to a withdrawal of the notice, if such request be made before the expiration of the time in which the creditor has to bring suit. By Whom Notice Must Be Given. The statutory notice may be given by an agent of the sure- ty, if authorized, 337 or by the personal representative of a deceased surety. 338 Notice by one surety will not affect the liability of a co-surety. 339 331 Notice to collect is not sufficient. Franklin v. Franklin, 71 Ind. 573. Nor is notice "to get it settled." Bowling v. Chambers, 77 Pac. 16, 20 Colo. App. 113. 332 A suggestion or recommendation is not sufficient. Kennedy v. Falde, 4 Dak. 319, 29 N. W. 667. Nor a desire. Bethune v. Dozier, 10 Ga. 235. Nor a wish. Hill v. Sherman, 15 Iowa, 365; Baker v. Kellogg, 29 Ohio St. 663 ; Parrish v. Gray, 1 Humph. (Tenn.) 83. 333 Christy's Adm'r v. Home, 24 Mo. 242; Iliff v. Weymouth, 40 Ohio St. 101. 33 4McCarter v. Turner, 49 Ga. 309; Hamblin v. McCallister, 67 Ky. (4 Bush) 418 ; Smith v. Clopton, 48 Miss. 66 ; Clark v. Osborn, 41 Ohio St. 28; 40 Cent. Dig. col. 2058. 335 Taylor v. Davis, 38 Miss. 493. 333 Gillilan v. Ludington, 6 W. Va. 128. 33 ' Medley v. Tandy, 85 Ky. 566, 4 S. W. 308. 338 O'Howell v. Kirk, 41 Mo. App. 523. 339 Wilson v. Tebbetts, 29 Ark. 579, 21 Am. Rep. 165; Trustees of Schools v. Southard, 31 111. App. 359; Martin v. Orr, 96 Ind. 491 Ramey v. Purvis, 38 Miss. 499 ; Routon's Adm'r v. Lacy, 17 Mo. 399 40 Cent. Dig. col. 2064. Contra, Jones v. Whitehead, 4 Ga. 397 Wright's Adm'r v. Stockton, 5 Leigh (Va.) 153. And by statute in Kentucky. Letcher's Adm'r v. Yantis, 3 Dana (Ky.) 160. 198 CREDITOR AND SURETY. (Ch. 5 To Whom Notice Must Be Given. The notice must be given to the creditor himself, 340 un- less he is not in the neighborhood, and has left the matter in the hands of an agent for collection, in which case notice to the agent will suffice. The marriage relation does not make either spouse the agent for the other for commercial trans- actions. 341 If there be two creditors, notice must be given to both. 342 Noncompliance with Notice. Upon receipt of the notice it is the duty of the creditor to use diligence in bringing suit against the principal within the time fixed by the statute, 343 and prosecute it diligently, 344 else the surety will be discharged. If the creditor be ignorant of the residence of the principal, reasonable diligence must be used to ascertain it; 345 and, if the principal be a nonresident, that may excuse suit in some cases. 348 Cumulative Bonds. After an officer has given bond, and while such bond remains in force, he gives another bond, a question frequently arises whether the new bond supersedes the old one, or whether it 840 Cummins v. Garretson, 15 Ark. 132 ; Trustees of Schools v. Southard, 31 III. App. 350; Driskill v. Washington County, 53 Ind. 532; McNeilly v. Cooksey, 70 Tenn. (2 Lea) 39; 40 Cent. Dig. col. 2051. Notice to an agent of the creditor is not sufficient, although the agent told the creditor. Bartlett v. Cunningham, 85-111. 22. But notice is sufficient, if given to the legal owner of the claim, without being given to the equitable owner. Gillilan v. Ludington, 6 W. Va. 128. And notice to one holding the instrument as collateral security will suffice. McCrary v. King, 27 Ga. 26. s" Bartlett v. Cunningham, 85 111. 22. 842 Kelly v. Matthews, 5 Ark. (5 Pike) 223. sis Miller v. Gray, 31 111. App. 454; Root v. Dill, 38 Ind. 169; First Nat. Bank of Newton v. Smith, 25 Iowa, 210; Cockrill v. Dye, 33 Mo. 365 ; Meriden Silver Plate Co. v. Plory, 44 Ohio St 430, 7 N. E. 753. 344 Peters v. Linenschmidt, 58 Mo. 464. 845 Cox v. Jeffries, 73 Mo. App. 412. 346 Conklin v. Conklin, 54 Ind. 289; Phillips v. Riley, 27 Mo. 386; Seattle Crockery Co. v. Haley, 6 Wash. 302, 33 Pac. 650, 36 Am. St. Rep. 156. Contra, Hayward v. Pullerton, 75 Iowa, 371, 39 N. W. 651. Nonresidence of the principal will not excuse, especially if he had property in the state. Hancock v. Bryant, 10 Tenn. (2 Yerg.) 476. § 116) LIABILITY TEKMINATED BT DEFAULT. 199 is cumulative. Of course, no difficulty arises when the new bond recites that it is in substitution of the former one. In some states a statutory provision allows a surety to release himself by requiring the principal to give another bond, and a new bond given under such circumstances will release the former surety ; S47 but when a new bond has been given, not at the request of a surety, and which is silent as to its effect on the former bond, the second bond is considered to be ad- ditional to the former one, although covering the same duties as the old one, and the sureties on the former bond are liable for the defaults of the principal occurring after the execution of the new bond. 348 If a court orders a new bond because the first is not sufficient, the intention is clear that it is cumu- lative. 349 Special Bonds. Where an officer, who has given a bond covering his du- ties generally, gives a bond to secure the performance of some special duty, the sureties on the general bond are not liable for defaults in regard to the special duty, although the lan- guage of the general bond is comprehensive enough to cover the special duty. 360 Thus, if a county treasurer is required to s" Johnson v. Fuquay, 1 Dana (Ky.) 514; Stevens v. Stevens, 3 Redf. Sur. (N. Y.) 507 ; Foster v. Wise, 46 Ohio St. 20, 16 N. E 687, 15 Am. St. Rep. 542. If the new bond be defective, the sureties on the first bond are not discharged. Stevens v. Allmen, 19 Ohio St. 485. 3*8 Matthews v. Mauldin, 38 South. 849, 142 Ala. 434; Dugger v. Wright, 51 Ark. 232, 11 S. W. 213, 14 Am. St. Rep. 48; Stewart v. Johnston, 87 Ga. 97, 13 S. E. 258 ; People v. Curry, 59 III. 35 ; Allen v. State, 61 Ind. 268, 28 Am. Rep. 673 ; Middleton's Adm'r v. Hensley, 52 S. W. 974, 21 Ky. Law Rep. 703 ; Miller v. Kelsey, 100 Me. 103, 60 Atl. 717 ; State ex rel. Saline County v. Sappington, 67 Mo. 529 ; Gilbert v. Luce, 11 Barb. (N. Y.) 91; Pickens v. Miller, 83 N. C. 543; State v. Crooks, 7 Ohio (pt. 2) 221 ; Hand Mfg. Co. v. Marks, 59 Pac. 549, 36 Or. 523 ; Finch v. State, 71 Tex. 52, 9 S. W. 85 ; Lingle v. Cook, 32 Grat. (Va.)" 262 ; Postmaster General v. Munger, 2 Paine (U. S.) 189, Fed. Cas. No. 11,309. sio Moulding v. Wilhartz, 169 111. 422, 48 N. E. 189; Smith v. Whit- ten, 117 N. C. 389, 23 S. E. 320. 8 50 Cooper v. People, 85 111. 417; People v. Moon, 4 111. (3 Scam.) 123 ; Bunce v. Bunce, 65 Iowa, 106, 21 N. W. 205 ; Morris v. Cooper, 35 Kan. 156, 10 Pac. 588; Williams v. Morton, 38 Me. 52, 61 Am. Dec. 229; White v. East Saginaw, 43 Mich. 567, 6 N. W. 86; State 200 CREDITOR AND SURETY. (Ch. 5 give a special bond for the protection of the school fund, the sureties upon his general bond as county treasurer would not be liable for the school fund, but the liability would devolve upon the sureties in the special bond only ; 3B1 and this would be the result, although the sureties in the general bond had undertaken to become liable for all moneys coming into the treasurer's hands, and would have been liable if a special bond had not been given. Bonds Given for Successive Periods. Where an officer has given a new bond, which supersedes a former one, and the sureties upon the new bond are not the same as those upon the old one, it is not always an easy matter to determine which set of sureties is liable for the default. There is no difficulty if it be known definitely just when the default occurred, and there has been no effort to conceal it, for the sureties upon the bond in force at the time of the de- fault are the ones liable; 352 but it is not always possible to prove when a default occurred, or the officer may have taken funds received at one time to cover a shortage arising from a previous default. In case of doubt, it will be presumed that the default occurred while the second bond was in force, and the burden is upon the latter set of sureties to prove the con- trary. 863 v. Young, 23 Minn. 551 ; State, to Use of Maries County, v. Johnson, 55 Mo. 80 ; Smith v. Gummere, 39 N. J. Eq. 27 ; Henderson v. Coover, 4 Nev. 429 ; State v. Bateman, 102 N. C. 52, 8 S. B. 882, 11 Am. St. Rep. 708 ; State v. Corey, 16 Ohio St. 17 ; Commonwealth v. Toms, 45 Pa. 408 ; Commonwealth v. Pray, 125 Pa. 542, 17 Atl. 450 ; Britton v. Ft. Worth, 78 Tex. 227, 14 S. W. 585 ; Kester v. Hill, 42 W. Va. 611, 26 S. E. 376; Board of Supervisors of Milwaukee County v. Pabst, 70 Wis. 352, 35 N. W. 337; United States v. Cheeseman, 3 Sawy. (U. S.) 424, Fed. Cas. No. 14,790. 3 5i State v. Felton, 59 Miss. 402 ; Broad v. Paris, 66 Tex. 119, 18 S. W. 342. 352 City of Detroit v. Weber, 29 Mich. 24; Street v. Laurens, 5 Rich. Eq. (S. C.) 227 ; Sherrell v. Goodrum, 3 Humph. (Tenn.) 419. 353 Phillips v. Brazeal, 14 Ala. 146;- State v. Stroop, 22 Ark. 328; Goodwine v. State, 81 Ind. 109; Bockenstedt v. Perkins, 73 Iowa, 23, 34 N. W. 488, 5 Am. St. Rep. 652 ; McKim v. Bartlett, 129 Mass. 226 ; Pine County v. Willard, 39 Minn. 125, 39 N. W. 71, 1 L. R. A. 118, 12 Am. St. Rep. 622 ; Kelly v. State, 25 Ohio St. 567 ; Hetten v. § 116) LIABILITY TERMINATED BT DEFAULT. 201 Where an officer has been elected for two succeeding terms, with a different bond for each term, and he abstracts money received during the second term to pay a defalcation made un- der the first term, the sureties on the second bond are liable. 35 * In order to make good the defalcation of the first term, the principal might have borrowed money from an outside source, in which case it would have been equivalent to payment with his own funds, leaving an indebtedness on his part to outside parties, and the sureties on the first bond would not be liable. If, instead of borrowing from outside, the principal uses the funds received during the second term, the effect is the same as to the first set of sureties as if he had borrowed it else- where ; but it is a conversion of the funds received during the second term, and the second set of sureties would be liable for it. 355 It is the same as using the money received during the second term to pay his private debts. 356 If the principal, at the beginning of his second term re- port a sum of money in his hands, being that which should have been in his possession at the end of his first term, but in fact he does not have it, the sureties during his second term will be liable, 357 for they have undertaken that the principal will pay over such money. A test which may be applied in cases where an officer suc- ceeds himself, and has given a different bond for each term, is to determine what would be the liability of the sureties if the officer, instead of succeeding himself, had been succeeded Lane, 43 Tex. 279 ; Clark v. Wilkinson, 59 Wis. 543, 18 N. W. 481 ; Bruce v. United States, 17 How. (U. S.) 437, 15 L. Ed. 129. ss* Rogers v. State, 99 Ind. 218; State v. Powell, 40 La. Ann. 234, 4 South. 46, 8 Am. St. Rep. 522; Frownfelter v. State, 66 Md. 80, 5 Atl. 410; Board of Supervisors of Lauderdale County v. Alford, 65 Miss. 63, 3 South. 246, 7 Am. St. Rep. 637 ; State v. Sooy, 39 N. J. Law, 539 ; Crawn v. Commonwealth, 84 Va. 282, 4 S. E. 721, 10 Am. St. Rep. 839. 356 ingraham v. Maine Bank, 13 Mass. 208. ass Frownfelter v. State, 66 Md. 80, 5 Atl. 410; Colerain, Inhabit- ants of, v. Bell, 9 Mete. (Mass.) 499 ; County of Pine v. Willard, 39 Minn. 125, 39 N. W. 71, 1 L. R. A. 118, 12 Am. St. Rep. 622 ; State v. Sooy, 39 N. J. Law, 539 ; Gwynne v. Burnell, 7 Clark & F. 572. 357 Roper v. Sangamon Lodge, 91 111. 518, 33 Am. Rep. 60; Morley v. Metamora, 78 111. 394, 20 Am. Rep. 266 ; Goode v. Burford, 14 La. Ann. 102. 202 CREDITOR AND SURETY. (Ch. 5 by another person. If the successor should take money re- ceived by the latter to make good a defalcation of his prede- cessor, there is no doubt of the liability of the second set of sureties. Likewise, if the successor reports as having on hand a sum of money which he did not receive, but which he should have received from his predecessor, the second set of sureties would be liable likewise. Surety's Liability Terminated by Principal's Default In every bond for the faithful performance of duties by another there is an implied term that the employer knowingly will not retain the principal in his employ after any act which constitutes a breach of the bond; SB8 and, if he does so, hav- ing the power to discharge the defaulting employe, 359 the surety cannot be held for any future defaults, 860 though the surety will remain liable for all defaults which occurred prior to the discovery of one default by the obligee, whether the surety is notified of them promptly or not. 881 Knowledge Necessary. The rule applies to cases only where the employer has ac- tual knowledge, or what is equivalent thereto; and it is not sufficient that the employer might have discovered the default 3 58 Rapp v . Phoenix Ins. Co., 113 111. 390, 55 Am. Rep. 427; Dins- more v. Tidball, 34 Ohio St 411. 359 Byrne v. Muzio, L. R. 8 Ir. 396. 36 SAINT v. WHEELER, 95 Ala. 362, 10 South. 539, 36 Am. St. Rep. 210 ; Roberts v. Donovan, 70 Cal. 108, 9 Pac. 180, 11 Pac. 599 ; Rapp v. Phcenix Co., 113 111. 390 ; La Rose v. Bank, 102 Ind. 332, 1 N. E. 805; Connecticut Mut. Life Ins. Co. v. Scott, 81 Ky. 540; iETNA INS. CO. v. FOWLER, 108 Mich. 557, 66 N. W. 470 ; Colby Wringer Co v. Coon, 74 N. W. 519, 116 Mich. 208; Atlantic & P. Telegraph Co. v. Barnes, 39 N. Y. Super. Ct. (7 Jones & S.) 40, af- firmed 64 N. T. 385, 21 Am. Rep. 421; SANDERSON v. ASTON (1873) L. R. 8 Exch. 73; PHILLIPS v. FOX ALL (1872) 7 Q. B. 666. This rule is analogous to the general one that, after a breach, the other party has no right to increase the damages. See HUNT v. ROB- ERTS, 45 N. Y. 691. s«i Donnell Mfg. Co. v. Jones, 49 111. App. 327 ; Phenix Ins. Co. v. Findley, 59 Iowa, 591, 13 N. W. 738 ; State Bank at Elizabeth v. Chet- wood, 8 N. J. Law (3 Halst.) 1 ; Socialistic Co-operative Pub. Ass'n v. Hoffmann, 33 N. T. Supp. 695, 12 Misc. Rep. 440; Wilmington, C. & A. R. Co. v. Ling, 18 S. C. 116. See ante, § 98. § 116) LIABILITY TERMINATED BT DEFAULT. 203 by an investigation, 862 or that the principal has kept the knowledge from the employer by neglecting to render re- ports, 863 if the contract of suretyship does not require that any investigation or reports be made. The by-laws of a corpora- tion frequently require a periodical report to be made by cer- tain officers, and that their accounts be audited at stated in- tervals; but such requirements are for the benefit of the cor- poration, and are not intended for the benefit of sureties on the bonds of these officers. 364 The sureties undertake that the principal shall be honest, though all around him are rogues. 3 6B The same rule applies with greater force to pub- lic officers, on the ground of public policy. Statutory provi- sions for auditing public accounts are primarily for the pro- tection of the public, 366 and the failure of one set of officers to perform their duties in this respect will not excuse the failure of another officer to perform his duty. It is his duty to be honest, whether watched or not, and the surety has un- dertaken that he will be. s«2 Sparks v. Farmers' Bank, 3 Del. Oh. 274; Mutual Loan & BIdg. Ass'n v. Price, 16 Fla. 204, 26 Am. Rep. 703 ; Fidelity & Casualty Co. v. Gate City Nat. Bank, 97 Ga. 634, 25 S. E. 392, 33 L. R. A. 821, 54 Am. St. Rep. 440; Planters' Bank of Georgia v. Lamkin, R. M. Charlt. (Ga.) 29 ; Cawley v. People, 95 111. 249 ; Colby Wringer Co. v. Coon, 74 N. W. 519, 116 Mich. 208 ; Chew v. Ellingwood, 86 Mo. 260, 56 Am. Rep. 429; Newark v. Stout, 52 N. J. Law, 35, 18 Atl. 943; Board of Supervisors of Monroe County v. Otis, 62 N. Y. 88; Atlas Bank v. Brownell, 9 R. I. 168, 11 Am. Rep. 231; Hart v. United States, 95 U. S. 316, 24 L. Ed. 479; Phillips v. Bossard (D. C.) 35 Fed. 99 ; Enright v. Falvey, L. R. 4 Ir. 397. 36 3 Taylor v. Bank, 2 J. J. Marsh. (Ky.) 564; Inhabitants of Win- throp v. Soule, 175 Mass. 400, 56 N. E. 575 ; WATERTOWN FIRE INS. CO. v. SIMMONS, 131 Mass. 85, 41 Am. Rep. 196; Atlantic & P. Tel. Co. v. Barnes, 64 N. Y. 385, 21 Am. Rep. 621 ; Bush v. Critch- field, 4 Ohio, 103 ; Pittsburg, Ft. W. & C. Ry. Co. v. Shaeffer, 59 Pa. 350. as* Mutual Loan & Bldg. Ass'n v. Price, 16 Fla. 204, 26 Am. Rep. 703, 19 Fla. 127 ; WATERTOWN FIRE INS. CO. v. SIMMONS, 131 Mass. 85, 41 Am. Rep. 196 ; State, to Use of Southern Bank, v. Ather- ton, 40 Mo. 209 ; Morris Canal & Banking Co. t. Van Vorst, 21 N. J. Law (1 Zab.) 100. 88 5 Pittsburg, Ft W. & C. R. Co. v. Shaeffer, 59 Pa. 350. see Boone Co. v. Jones, 54 Iowa, 699, 2 N. W. 987, 7 N. W. 155, 37 Am. Rep. 229 ; Mayor, etc., of Natchitoches v. Redmond, 28 La. Ann. 204 CREDITOR AND SURETY. (Ch. 5 Knowledge by Agents. Knowledge by one employe of the defaults of another can- not be imputed to the employer, unless it is within the scope of the duties of the employe obtaining knowledge to take ac- tion, upon discovering the default, in regard to the defaulting employe. 367 Likewise, knowledge by one public officer of the defaults of another will not terminate the liabilities of the sureties for the defaulting officer. 368 What Constitutes a Default. The wrongful conduct which the obligee is required to re- port to the surety must relate to the service in which the principal is engaged, 369 and must amount to a breach of the bond. It must be more than a mere delinquency, such as a failure to remit promptly, 370 or matters which merely give rise to suspicions. 871 As to matters outside the service, the surety must keep himself informed. If the contract of suretyship expressly provides for giving information of specific acts, such information must be given, although the obligee considers such acts of no importance, else the surety will be discharged. Where a contract of sure- tyship required notice to be given to the surety if the employer became aware that the employe engaged in gambling or specu- lation, the surety could not be held for a default of the em- 274; United States v. Kirpatrick, 9 Wheat. (U. S.) 720, 6 L. Ed. 199. 387 SAINT v. WHEELER, 95 Ala. 362, 10 South. 539, 36 Am. St. Rep. 210. 3«s Cawley v. People, 95 111. 249; Jones v. United States, 18 Wall. (U. S.) 662, 21 L. Ed. 867. see La Rose v. Logansport Bank, 102 Ind. 332, 1 N. E. 805. In this case the bank was notified that the cashier was addicted to gam- bling, drunkenness, and other vices. 370 Pacific P. Ins. Co. v. Pacific Surety Co., 93 Cal. 7, 28 Pac. 842; Home Ins. Co. v. Holway, 55 Iowa, 571, 8 N. W. 457, 39 Am. Rep. 179; Gilbert v. State Ins. Co., 3 Kan. App. 1, 44 Pac. 442 ; WATERTOWN EIRE INSURANCE CO. v. SIMMONS, 131 Mass. 85, 41 Am. Rep. 196; -33TNA INS. CO. v. FOWLER, 108 Mich. 557, 66 N. W. 470; Atlantic & P. Tel. Co. v. Barnes, 64 N. Y. 385, 21 Am. Rep. 621, af- firming 39 N. Y. Super. Ct. (7 Jones & S.) 40 ; National Life Ins. Co. v. Olhaber, 9 Ohio Dec. 842, 17 Wkly. Law Bui. 353. 3'i American Surety Co. v. Pauly, 170 U. S. 133, 18 Sup. Ct. 552, 42 L. Ed. 977. §§ 117-121) REVOCABLE CONTRACT — HOW TERMINATED. 205 ploye if the employer failed to give such information, although the employer in good faith believed the matter to be of no im- portance to the surety. 872 CHANGES IN NUMBER OF CREDITORS OR OBLIGEES. 117. The liability of sureties is terminated by a change in the number of the creditors or obligees, unless a con- trary intention is indicated expressly or impliedly. EFFECT OF DEATH ON IRREVOCABLE CONTRACT OF SURETYSHIP. 118. An irrevocable contract of suretyship is not terminated by the death of the principal, or of the surety, but is by the death of the creditor or obligee. REVOCABLE GUARANTY TERMINATED BY NOTICE OF DEATH. 119. A revocable guaranty is terminated by the creditor's acquiring knowledge of the guarantor's death. REVOCABLE CONTRACT TERMINATED BY CHANGES IN JOINT LIABILITY OF GUARANTORS. 120. Where two or more have become jointly liable on a con- tinuing guaranty, the contract is terminated by any change in the number known to the creditor. REVOCABLE CONTRACT TERMINATED BY CHANGES IN JOINT LIABILITY OF PRINCIPALS. 121. A continuing guaranty for two or more principals joint- ly is terminated by any change in their number. Change in Number of Creditors or Obligees. A surety upon a bond given to a firm is not liable for any acts of the principal after the firm is dissolved for any 3" Guarantee Co. v. Mechanics' Bank, 183 TJ. S. 402, 22 Sup. Ct. 124, 46 L. Ed. 253, reversing 80 Fed. 766, 26 C. C. A. 146. 206 CREDITOR AND SURETY. (Ctl. 5 cause ; 378 and, conversely, a surety on a bond given to one person is not liable to that person jointly with another. 374 A bond given to secure the fidelity of a clerk cannot be enforced by a firm formed by the obligee taking in a partner, although the principal is continued in the same employment; 875 but, if the creditor continues in his individual capacity to deal with the principal, a guarantor will not be freed from liability be- cause the creditor shares the proceeds with another. Thus, where an attorney, who was guarantied payment for profes- sional services to be rendered another, took a partner, but ren- dered the services personally, the guarantor remained lia- ble ; 378 though it would have been otherwise if the services had been rendered by the partners. Death of Principal. In an irrevocable contract of suretyship, the liability of a surety does not cease with the death of the principal. 877 If the deceased principal was the custodian of money, the duty yet remains upon the surety to see that it is accounted for properly and paid over to the person entitled to receive it. 378 If there were two principals, upon the death of one the surety remains liable for the survivor. 879 B7 3 Bensinger v. Wren, 100 Pa. 500; Dance v. Girdler, 4 Bos. & P. 34. a'* See post, § 135. s'sBarnett v. Smith, 17 111. 565; Wright v. Russell, 2 W. Black. 934. 3'e Roberts v. Griswold, 35 Vt. 496, 84 Am. Dec. 641. 377 Camp v. Watt, 14 Ala. 616; State v. Soale, 36 Ind. App. 73, 74 N. B. 1111 ; Parham v. Cobb, 7 La. Ann. 157 ; Baker v. Elliot, 73 Me. 392 ; Bell v. Walker, 54 Neb. 222, 74 N. W. 617 ; Piercy v. Piercy, 1 Ired. Bq. (N. C.) 214 ; Elmendorf v. Whitney, 153 Pa. 460, 25 Atl. 607 ; Boggs v. State, 46 Tex. 10 ; Gaussen v. United States, 97 TJ. S. 584, 24 L. Bd. 1009. 378 Garrett v. Beese, 99 Ga. 494, 27 S. E. 750 ; Ames v. Dorroh, 76 Miss. 187, 23 South. 768, 71 Am. St. Rep. 522 ; Great Falls v. Hanks, 21 Mont. 83, 52 Pac. 785 ; Parker v. Dominick, 105 App. Div. 440, 94 N. T. Supp. 249 ; Peabody v. Ohio, 4 Ohio St. 387. 379 Brooks v. Hope, 139 Mass. 351 31 N. E. 728; Dobyns v. Mc- Govern, 15 Mo. 662. § 121) REVOCABLE CONTRACT — HOW TERMINATED. 207 Death of Surety. Likewise, the death of a surety does not terminate the lia- bility on a bond; but his estate is liable, 380 not only for de- faults which have occurred prior to his death, but also for those which occur thereafter. 381 Nor does the death of one jointly liable on a revocable guaranty relieve the other. He should give notice if he does not wish to remain individually liable. 382 Death of Obligee. The death of the obligee terminates the contract, although the principal is continued in the same capacity by the obli- gee's executor. 383 3 80 Hightower v. Moore, 46 Ala. 387 ; Rapp v. Phoenix Ins. Co., 113 111. 390, 55 Am. Rep. 427; Powell v. Kettelle, 1 Gilman (111.) 491; Mowbray v. State, 88 Ind. 324; Royal Co. v. Davies, 40 Iowa, 469, 20 Am. Rep. 581 ; Moore v. Carpenter, 10 Ky. Law Rep. 814 ; Green v. Young, 8 Greenl. (Me.) 14, 22 Am. Dec. 218; CLARK v. THAYER, 105 Mass. 216, 7 Am. Rep. 511 ; Douglass v. Ferris, 138 N. Y. 192, 33 N. E. 1041, 34 Am. St. Rep. 435, reversing 63 Hun, 413, 18 N. Y. Supp. 685 ; Kernochan v. Murray, 111 N. Y. 306, 18 N. E. 868, 2 L. R. A. 183, 7 Am. St. Rep. 744; McNeill v. McBryde, 112 N. C. 408, 16 S. E. 841; Burgoyne v. Ohio Life Ins. & Trust Co., 5 Ohio St. 586; Shackamaxon Bank v. Yard, 150 Pa. 351, 24 Atl. 635, 30 Am. St. Rep. 807, 30 Wkly. Notes Cas. 352 ; In re Jones' Estate, 11 Wkly. Notes Cas. 554, 28 Pittsb. Leg. J. 375; NATIONAL EAGLE BANK v. HUNT, 16 R. I. 148, 13 Atl. 115 ; Susong v. Vaiden, 10 S. C. 247, 30 Am. Rep. 50; Finch v. State, 71 Tex. 52, 9 S. W. 85; Coleman v. Stone, 85 Va. 386, 7 S. E. 241 ; Snyder v. State, 5 Wyo. 318, 40 Pac. 441, 63 Am. St. Rep. 60 ; Broome v. United States, 15 How. (U. S.) 143, 14 L. Ed. 636; FEWLASS v. KEESHAN, 88 Fed. 573, 32 C. C. A. 8 ; McClaskey v. Barr (C. C.) 79 Fed. 408 ; United States v. Keiver (C. C.) 56 Fed. 422; LLOYD'S v. HARPER (1880) 16 Ch. Div. 290; Gordon v. Calvert, 2 Sim. 253, 4 Russ. 581, 3 M. & Ry. 124. Where the obligation is joint only, and not joint and several, the obligee must proceed against the survivor. RICHARDSON v. HORTON, 6 Beav. 185. But in the United States the estate of the deceased surety can be reached in equity. Smith v. Ballantyne, 10 Paige (N. Y.) 101. 3 8i Rapp's Estate v. Phoenix Ins. Co., 113 111. 390, 55 Am. Rep. 427; Green v. Young, 8 Greenl. (Me.) 14, 22 Am. Dec. 218; Palmer v. Pol- lock, 26 Minn. 433, 4 N. W. 1113 ; CARR v. LADD, Smith (N. H.) 45 ; Hecht v. Weaver (C. C.) 13 Sawy. 199, 34 Fed. 111. 882 Richardson v. Draper, 23 Hun (N. Y.) 188, affirmed 87 N. Y. 337; Fennell v. McGuire, 21 U. C. C. P. 134; BECKETT v. ADDY- MAN, 9 Q. B. D. 783. 38 3 Barker v. Parker, 1 Durn. & E. 287. 208 CREDITOR AND SURETY. (Ch. 5 Death of Guarantor. A continuing guaranty being revocable so far as future transactions are concerned, 384 upon knowledge 385 of the death of the guarantor being acquired by the creditor, the latter cannot hold the estate of the deceased guarantor liable for any credit extended to the principal after the receipt of such in- formation, 386 unless the guarantor has bound his personal representatives expressly, in which case, in addition to notice of the guarantor's death, the personal representative should give express notice of an intention to revoke the guaranty. 387 Changes in Joint Liability of Sureties. Where a firm has become liable on a continuing guaranty, notice of the dissolution of the firm, given to the creditor, terminates the liability of the partners for any credit extended to the principal thereafter. 388 as* See ante, § 112, b. 385 There is lack of harmony in the decisions whether death alone will terminate the liability, or whether the creditor must have knowl- edge of the death. In the following cases the estate of the deceased guarantor was held liable for advances made after the death of the guarantor, the creditor being in ignorance thereof: Gay v. Ward, 67 Conn. 147, 34 Atl. 1025, 32 L. R. A. 818 ; Rapp's Estate v. Phoenix Co., 113 111. 390, 55 Am. Rep. 427 ; Menard v. Scudder, 7 La. Ann. 385, 56 Am. Dec. 610 ; BRADBURY v. MORGAN, 1 Hurl. & Colt. 249. But in other jurisdictions it has been held that the guaranty is revoked instantly by the death of the guarantor, although the creditor has no notice thereof. Aitken v. Lang, 106 Ky. 652, 51 S. W. 154, 90 Am. St. Rep. 263 ; Hyland v. Habich, 150 Mass. 112, 22 N. E. 765, 6 L. R. A. 383, 15 Am. St. Rep. 174 ; Illinois Roofing & Supply Co. v. Gorton, 19 Pa. Co. Ct. R. 124, 6 Pa. D. C. 407 ; Michigan State Bank v. Leav- enworth, 28 Vt. 210. And in such cases it makes no difference that the guaranty was under seal, and contained a provision that it was to continue until notice of revocation, as such provision affected the liability of the guarantor while living only. JORDAN v. DOBBINS, 122 Mass. 168, 23 Am. Dec. 305. 388 Kernochan v. Murray, 111 N. Y. 306, 18 N. E. 868, 2 L. R. A. 183, 7 Am. St. Rep. 744; Slagle v. Amderson, 1 Monag. (Pa.) 30; Slagle v. Forney, 22 Wkly. Notes Cas. (Pa.) 457 ; NATIONAL EAGLE BANK v. HUNT, 16 R. I. 148, 13 Atl. 115; COULHART v. CLEM- ENTSON, 5 Q. B. D. 42. 3S7 Knotts v. Butler, 10 Rich. Eq. 143; In re SILVESTER (1895) 1 Ch. 573. 3 88 City Nat. Bank v. Phelps, 16 Hun (23 N. T. Super. Ct.) 158. § 121) REVOCABLE CONTRACT — HOW TERMINATED. 209 Change in Number of Principals. If a person becomes surety for two or more persons, he cannot be held liable for any dealings with one only of them; 3S9 nor can a surety for one be held liable for any deal- ings by that principal joined with another, 390 although the surety knew that the principal was to be employed by the two jointly. 391 These cases arise most commonly in respect to partnerships. A surety cannot be held liable for any dealings with the partners after a change in the membership of the firm caus- ing its dissolution, 892 whether it results from death, retire- ment of a partner, 393 or from any other cause. Some of the partners may have possessed greater business capacity than the others, and the surety has the right to rely upon them all. The rule applies, although the creditor continues dealing with the firm without knowledge of the change. 394 The neglect of the principal cannot affect the surety's rights. If the surety has indicated, expressly or impliedly, an inten- tion to remain bound, a change will not affect him. He may be considered as impliedly consenting to remain liable, not- withstanding changes, where the principals are described as a class, or company, and not individually. 396 If a surety undertakes to become liable for one person, he cannot be held liable for a partnership of which that person 389 Prior v. Kiso, 81 Mo. 241; State v. Boon, 44 Mo. 254. ssoDupee v. Blake, 148 111. 453, 35 N. E. 867; Bell v. Norwood, 7 La. (4 Curry) 95 ; White Sewing Mach. Co. v. Hines, 61 Mich. 423, 28 N. W. 157; Montefiore v. Lloyd, 15 J. Scott (N. S.) 203. 3si London Co. v. Bold, 6 Ad. & El. (N. S.) 514. 392 Parham Sewing Mach. Co. v. Brock, 113 Mass. 194; Cremer v. Higginson, 1 Mason (U. S.) 323, Fed. Cas. No. 3,383. 393 Hawkins v. New Orleans, 29 La. Ann. 134; Bill v. Barker, 16 Gray (Mass.) 62 ; Connecticut Mut. Life Ins. Co. v. Bowler, 1 Holmes (U. S.) 263, Fed. Cas. No. 3,106 ; Holland v. Teed, 7 Hare, 50. 394 Byers v. Grain Co., 112 Iowa, 451, 84 N. W. 500. A surety for the payment of gas furnished to one person is not liable for gas furnished to the latter's successor, although there has not been any notice given of the change in the occupancy of the premises. Man- hattan Gaslight Co. v. Ely, 39 Barb. (N. T.) 174. ass Gargan v. School Dist, 4 Colo. 53; Barclay v. Lucas, 1 Term E. 291. Childs' Sueetyship — 14 210 CREDITOR AND SURETY. (Ch. 5 becomes a member, 396 though the mere fact that the principal associates himself with a partner will not terminate the con- tract, if the creditor continues to deal with the principal as an individual, and not with the firm. 397 SURETY DISCHARGED BY PERFORMANCE OF CONTRACT. 122. A surety will be discharged by performance of Ms con- contract. PERFORMANCE PREVENTED BY ACT OF CREDITOR OF OBLIGEE. 123. A surety -will not be liable if nonperformance results from the unlawful act of the creditor or obligee, or from a default of the principal at the request of the creditor or obligee. CONTRACT NOT RETROACTIVE. 124. A surety cannot be held liable for anything occurring prior to the delivery of his contract, unless the con- tract so provides. COMPLIANCE WITH CONDITIONS. 125. If the surety's contract be conditional, the conditions must be complied with before he can be held liable. GUARANTIES OF COLLECTION. 126. A guarantor of collection will not be liable until the creditor has used due diligence in endeavoring to en- force payment from the principal. ana Connecticut Mut. Ins. Co. v. Scott, 81 Ky. 540; Parham v. Brock, 113 Mass. 194; Coan v. Patridge (Sup.) 98 N. Y. Supp. 570, affirmed 101 N. Y. Supp. 1117 ; Dobbin v. Bradley, 17 Wend. (N. Y.) 422 ; Dry v. Davy, 10 Ad. & EI. 30. 8»f Gilbert v. Insurance Co., 3 Kan. App. 1, 44 Pac. 442; Palmer v. Bagg, 56 N. Y. 523. § 126) GUARANTIES OF COLLECTION. 211 Many rules of law are very simple when stated in the ab- stract, but very difficult of application. While it is clear that a surety will be discharged when he has performed his con- tract' fully, it is not so easy to decide whether a surety has performed his contract. He will be presumed to have per- formed it until the contrary be shown. Sureties for an officer are liable only in event of his failure to perform his duty. If, in the line of his duty, he makes a contract as agent for another, his sureties are not liable for a breach of that contract, as the contract is not the officer's. 398 A surety cannot be held liable for any act, 399 or for any money, 400 unless he has assumed that liability in his con- tract. 401 Where a bond was given to turn over a building to the owner "free from liens for labor and material," and the owner pays labor and material claims before the building is turned over to him, there is no breach of the bond, 402 as there might have been if he had not paid the claims. Where a person guaranties that an infant will ratify a sale of land and the notes taken in payment therefor, a ratification by the in- fant is a performance of the guarantor's contract, whether the notes are paid or not. 403 Where a person has given bond, ass Brown v. Phipps, 14 Miss. 51 ; Commonwealth v. Swope, 45 Pa. 535, 84 Am. Dec. 518 ; Parks v. Ross, 11 How. (U. S.) 362, 13 L. Ed. 730. s »o People v. Tompkins, 74 111. 482; Denio v. State, 60 Miss. 949; People v. Vilas, 36 N. X. 459, 93 Am. Dee. 520 ; Pybus v. Gibb, 6 El. & Black. 962. 400 a guaranty read as follows: "This may certify that we being acquainted with Prank Stevens and reposing good confidence in his honesty and the goods you may see fit to entrust him with we will hold ourselves good for provided he should sell them and abscond with money or squander them away and this shall your note against us." Stevens returned the unsold goods, leaving a balance due for goods sold by him. The guarantors were not liable, as he did not ab- scond. McDougal v. Calef, 34 N. H. 534. An agreement to become bound if an employfi left does not make the surety liable for a de- falcation by the employs. Freeman v. Waxman, 43 Misc. Rep. 656, 88 N. T. Supp. 129. 4oi Burlington Ins. Co. v. Johnson, 120 III. 622, 12 N. E. 205; Chamberlain v. Hodgetts (Tex. Civ. App. 1907) 99 S. W. 161. See ante, § 107, as to effect of alteration of the contract. 402 Bell v. Paul, 35 Neb. 240, 52 N. W. 1110. 403 STARR v. MILLIKIN, 180 111. 458, 54 N. E. 328. 212 CREDITOR AND SURETY. (Ch. 5 with surety, to convey a certain amount of land in a certain district, which he fails to do, the surety cannot be compelled to convey land to the obligee of the bond, although the surety has land of his own that would conform to the description, as the surety's contract is, not that he personally would convey, but that the principal would. 40 * Principal's Performance of Duties. Where the surety's contract is that the principal will dis- charge the duties of a certain office, 405 the surety has per- formed his contract if the principal has performed the du- ties within the scope of the office. 'Duties may be within the scope of the office, although not strictly within the line of the office, if such duties are casual or temporary at the request of the employer; 408 but a surety will not be lia- ble for acts outside the scope of the office, 407 even though or- dered done by a court, 408 or inadvertently omitted from the bond. 409 If a surety has undertaken to be liable for the per- formance of certain specified duties by the principal, he will not be liable for the performance of duties which are not a full, though a substantial, compliance with the contract. A surety for a contract by the principal to milk 30 cows one year is not liable if the principal, with the consent of the oth- 404 Johnson v. Hobson, 1 Litt. (Ky.) 314. 405 The sureties on the bond of a postmaster are liable for money embezzled by a clerk, though the postmaster was not negligent, and the clerk held office under the civil service rules of the government. Bryan v. United States, 61 TJ. S. App. 259, 90 Fed. 473, 33 C. C. A. 617, 53 L. R. A. 218. But sureties are not liable, generally, for de- faults of subordinates employed by the obligee. Chicago & A. R. R. Co. v. Higgins, 58 111. 128 ; Equitable Life Co. v. Coats, 44 Mich. 260, 6 N. W. 648. 406 Detroit Bank v. Ziegler, 49 Mich. 157, 13 N. W. 496, 43 Am. Rep. 456 ; Rochester Bank v. Elwood, 21 N. T. 88 ; German Bank v. Auth, 87 Pa. 419, 30 Am. Rep. 374. *07McKee v. Griffin, 66 Ala. 211; Carey v. State, 34 Ind. 105; Baltimore & O. R. Co. v. State, 60 Md. 449 ; Ottenstein v. Alpaugh, 9 Neb. 237, 2 N. W. 219; Gregg v. Currier, 36 N. H. 200; State v. Sloane, 20 Ohio, 327 ; Carter v. Young, 9 Lea (Tenn.) 210. 40 8 Nelson v. Woodbury, 1 Me. 251. 409 United States v. Cheeseman, 3 Sawy. (U. S.) 424, Fed. Cas. No. 14,790. § 126) GUARANTIES OF COLLECTION. 213 er party to the contract, milks 28 cows part of the year, and 32 for a part. 410 Performance as to Locality. If the contract of suretyship is in regard to some act to be performed in a certain locality, the surety cannot be held liable for acts outside of that locality. 411 A surety upon the bond of an agent to indemnify the obligee against loss while the principal was acting in a certain territory cannot be held liable for defaults in a new territory assigned to the agent. 412 A guaranty of payment for a bridge to be built in a cer- tain place cannot be enforced if the bridge be built in an an- other place ; 413 and a guarantor for the delivery to a lessor of a flock of sheep from a certain farm at a certain time is not liable for a nondelivery of sheep from a farm made small- ler by the lessor. 414 Performance as to Time. If the contract of suretyship is in regard to some act to be performed at a certain time, the surety cannot be held lia- ble for acts performed at a different time. Where a bond provides that an accused person shall appear at a certain time, and he does so appear, the surety is discharged, although the Legislature has changed the time. 415 If, however, the day is not specified, but the surety undertakes that the defendant shall appear at the next term of court, the surety is not dis- charged unless the defendant does appear at the next term of court, although the time has been changed by the Legis- lature, and is not the same as that in the mind of the surety at the execution of the contract. 418 410 WHITCHER v. HALL,, 5 Barn. & C. 269, 8 Dowl. & R. 22, 4 L. J. K. B. 167, 29 Rev. Rep. 244. «i United States v. Boecker, 21 Wall. (U. S.) 652, 22 L. Ed. 472. A guarantor of the payment of paper to be made payable at a par- ticular bank will not be liable on a note which specifies no place of payment, though the note actually be deposited for collection in the bank designated and the guarantor is notified. Dobbin v. Bradley, 17 Wend. (N. Y.) 422. 412 White Sewing Machine Co. v. Mullins, 41 Mich. 339, 2 N. W. 196. 413 Mercer County v. Coovert, 6 Watts & S. (Pa.) 70. 414 HOLME v. BRUNSKILL (1877) L. R. 3 Q. B. D. 495. 4i5 state v. Stephens, 2 Swan (Tenn.) 308. 4ie Walker v. State, 6 Ala. 350. 214 CREDITOR AND SURETY. (Ch. 5 Performance as to Amounts. Sureties cannot be held liable for any money received by their principal which he does not receive in the line of his duty, 417 or which is collected by him without authority. 418 The sureties on the bond of a public officer are not liable for voluntary contributions received by him for a specific pur- pose, although he. has included the receipts and disbursements of such money in his official accounts ; * 19 but the sureties would be liable, however, if the funds in the custody of the principal are increased, provided such funds are of the same general character.* 20 Sureties are liable for all money in the hands of the prin- 4"Satterfield v. People, 104 111. 448; Scott v. State, 46 Ind. 203; Sample v. Davis, 4 G. Greene (Iowa) 117 ; Saltenberry v. Loucks, 8 La. Ann. 95 ; Nolley v. Callaway County Court, 11 Mo. 447 ; Hender- son v. Coover, 4 Nev. 429; People v. Pennock, 60 N. Y. 421; Com- monwealth v. Bonding Co., 25 Pa. Super. Ct. 145 ; Turner v. Collier, 4 Helsk. (Tenn.) 89 ; Heidenheimer v. Brent, 59 Tex. 533 ; Dr. Koch Vegetable Tea Co. v. Gates (Wash. 1906) 86 Pac. 624; United States v. Cranston, 3 Cranch, C. C. (U. S.) 289, Fed. Cas. No. 14,889; Keith v. Fenelon Palls Union School, 3 Out. 194. Where the Legislature made the State Treasurer cashier of a state bank, his sureties as Treasurer were not liable for the funds of the bank. Reynolds v. Hall, 2 111. 35. Nor are the sureties for an agent liable for notes given by him as an individual. Phillips v. Singer Mfg. Co., 88 HI. 305. A bond to account for money coming into the hands of an agent does not cover advances made by the obligee to him. Burlington Ins. Co. v. Johnston, 24 111. App. 565, affirmed 120 111. 622, 12 N. B. 205. 418 Forward v. Marsh, 18 Ala. 645; San Jose v. Welch, 65 Cal. 358, 4 Pac. 207 ; People v. Huffman, 182 111. 390, 55 N, E. 981, 78 111. App. 345 ; Linch v. Litchfield, 16 HI. App. (16 Bradw.) 612 ; State v. Bar- rett, 121 Ind. 92, 22 N. E. 969 ; Commonwealth v. Sommers, 3 Bush -" poi-fnrTnnTif p hv the principal has be - come impossible bv act of law.a Y oung v. Pickens, 45 Miss. 553; Caldwell v. Gans, 1 Mont. 570. Or by act of the public enemy. Ordinary v. Corbett, 1 Bay (S. C.) 328. Bsi State v. Parker, 72 Ala. 181; Brown v. Bradford, 30 Ga. 927; Baker v. Merriam, 97 Ind. 539; Crum v. Wilson, 61 Miss. 233; State v. Coste, 36 Mo. 437, 88 Am. Dec. 148; Gill v. Morris, 11 Heisk. (Tenn.) 614, 27 Am. Rep. 744. 63 2 Law v. East India Co., 4 Vesey, 824. 6 33 Go van v. Moore, 30 Ark. 667. Moral: The creditor should never marry the principal. 634 gee ante, § 101. 234 CREDITOR AND SURETY. (Ch. 5 trial, being acquitted, the judgment against the sureties could not be enforced. 685 Sureties in such a case have the right to have the judgment against them perpetually enjoined. When the liability of the principal ceased, that of the sureties ceased also, although tbe sureties knew all of the facts before the judgment against them, except the discharge of the principal. That was the fact which discharged them. 636 Where a judg- ment against the principal and sureties is a lien upon land, and the same person becomes owner of the land and of the judgment, the sureties would be discharged to the extent of th value of the land, into which the lien of the judgment had merged/"' I 587 Destruction of Bailed or Leased Property. If a person has become liable for the return of property in- trusted to the principal, he is discharged if that property be destroyed without negligence on the part of the principal or of himself, so that performance of his contract has become im- possible, unless he has undertaken absolutely to be answerable in damages for a failure to return it. 538 Thus, where an aeronaut borrowed a balloon, which was destroyed by fire without the fault of any one, a guarantor of the return of the balloon was not liable. 639 Inasmuch as a tenant of demised property is not released from his liability to pay rent by reason of the destruction of the premises, even though the landlord was fully insured, a surety for the rent remains liable. 510 535 Beall v. Cochran, 18 Ga. 38; McCloskey v. Wingfield, 29 La. Ann. 141; Miller v. Gaskins, Smedes & M. Ch. 524. If the sureties have paid the creditor before the judgment against the principal has been reversed, they cannot recover the money paid. Garr v. Martin, 20 N. Y. 306. 536 AMES v. MACLAY, 14 Iowa, 281. 537 WEIGHT v. KNEPPER, 1 Barr (Pa.) 361. ass Steele v. Buck, 61 III. 343, 14 Am. Rep. 60; Clapp v. Seibrecht, 11 La. Ann. 528; Carpenter v. Stevens, 12 Wend. (N. Y.) 589. 639 Meridian Fair Ass'n v. North Birmingham Ry. Co., 70 Miss. 808, 12 South. 555. 540 Kingsbury v. West-fall, 61 N. Y. 356. §§ 130-131) PERSONAL DEFENSES OP SURETY. 235 PERSONAL DEFENSES OF PRINCIPAL NOT AVAILABLE TO SURETY. 130. Personal defenses of the principal, which are not avail- able to the surety, are: (a) Those arising from incapacity at the time of the execu- tion of the contract. (1) Infancy. (2) Coverture. (3) Insanity. (4) Ultra vires act of a corporation. (b) Those arising subsequently by operation of law. (1) Bankruptcy. (2) The statute of limitations. (3) Alien enemy. PERSONAL DEFENSES OF SURETY. 131. A surety may be discharged by bankruptcy or the stat- ute of limitations, though the principal remain liable. The right of the surety to set up defenses available to the principal are restricted to such as are inherent to the debt, known as "real defenses," and does not extend to such as are personal to the principal, 541 and not connected with any act or negligence on the part of the creditor. Incompetency of the surety himself, as a defense, has been considered heretofore. 5 * 2 Personal defenses available to the principal, but not to the surety, are such as arise from the incompetency of the principal at the time the contract was entered into, or which arise subsequently by operation of law. A contract of surety- ship imports that the principal is competent to contract, 543 and the liability of the surety in such cases is not tested by his b*i Jones v. Crosthwaite, 17 Iowa, 393; Robinson v. Robinson, 11 Bush (Ky.) 174; Foxworth v. Bullock, 44 Miss. 457; Harley v. Stapleton's Adm'r, 24 Mo. 248; Erwin v. Downs, 15 N. Y. 576; Un- iingst v. Fitler, 84 Pa. 135; Hess'er v. Steiner, 5 Watts &■ 8. (Pa.) 476; Smyley v. Head, 2 Rich. Law (S. C.) 590, 45 Am. Dec. 750; Hicks v. Randolph, 62 Tenn. (3 Baxt.) 352, 27 Am. Rep. 760. 5*2 Ante, § 52. 5*3 Remsen v. Graves, 41 N. Y. 471 ; Zabriskie v. Cleveland R. R. Co., 23 How. (TJ. S.) 399, 16 L. Ed. 488. 236 CREDITOR AND SURETY. (Ch. 5 right to recover indemnity from the principal. 644 The disa- bility of the principal may be the very reason why the surety was required. 546 Infancy of Principal. A surety for an infant is bound, though the contract of the infant is voidable, 546 and though the infant disaffirm the contract; 547 but if the infant, after disaffirming his con- tract, return the consideration, the surety would be discharg- ed. 548 It would be unjust for the creditor to get back his property, and, in addition, be able to recover from the surety. Coverture of Principal. Sureties for a married woman are liable, though she be not. 649 Thus, where a married woman bought real estate, giving her note, with sureties, for the purchase price, title to the property passed to her, although her note was void, and the sureties were liable, although she could not be held. 560 Insanity of Principal. If the payee of a note be ignorant of the principal's in- sanity, a surety thereon can be held, though the principal is not liable. 651 0*4 See post, § 159. 540 Smyley v. Head, 2 Rich. Law (S. C.) 590, 45 Am. Dec. 750; YORKSHIRE CO. v. MACLURE, L. R. 19 Ch. D. 478. 646 Keokuk County State Bank v. Hall, 106 Iowa, 540, 76 N. W. 832; Hesser v. Steiner, 5 Watts & S. (Pa.) 476; Goodell v. Bates, 14 R. I. 65. 047 Kyger v. Sipe, 89 Va. 507, 16 S. E. 627. "s Keokuk Bank v. Hall, 106 Iowa, 540, 76 N. W. 832; BAKER v. KENNETT, 54 Mo. 82. This might be equivalent to payment, or could be treated as failure of consideration. 649 Stillwell v. Bertrand, 22 Ark. 375; Davis v. Starts, 43 Ind. 103, 13 Am. Rep. 382; Allen v. Berry hill, 27 Iowa, 534, 1 Am. Rep. 309; Adams v. Curny, 15 La. Ann. 485; Winn v. Sanford, 145 Mass. 302, 14 N. E. 119, 1 Am. St Rep. 461; McGavock v. Whitfield, 45 Miss. 452; Weed Sewing Mach. Co. v. Maxwell, 63 Mo. 486; Wagoner v. Watts, 44 N. J. Law (15 Vroom) 126; KIMBALL v. NEWELL, 7 Hill (N. T.) 116 ; WEARE v. SAWYER, 44 N. H. 198 ; Davis v. Com- missioners, 72 N. C. 441 ; Wiggins' Appeal, 100 Pa. 155 ; Smyley v. Head, 2 Rich. Law (S. C.) 590, 45 Am. Dec. 750 ; St. Albans Bank v. Dillon, 30 Vt. 122, 73 Am. Dec. 295. &6oFoxworth v. Bullock, 44 Miss. 457; Willingham v. Leake, 66 Term. (7 Baxt.) 453. 6 6i lee v. YANDELL, 69 Tex. 34, 6 S. W. 665. § 131) PERSONAL DEFENSES OF SURETY. 237 Ultra Vires Acts of Principal. Sureties on corporate obligations may be liable, though the corporation has exceeded its powers. 652 Bankruptcy of Principal. If the principal be discharged by the agency of the law in which the creditor does not participate, the surety remains liable. Thus, a discharge of the principal under the bank- ruptcy or insolvency laws will not result in a discharge of the surety, 563 though it deprive the latter of all recourse against the principal for whatever he is compelled to pay. It makes no difference that the creditor joins with the other creditors in petitioning for involuntary bankruptcy proceed- ings B64 and in proposing composition. 6 BB Under the present national bankruptcy act of 1898 (section 57») a surety has the right to prove the creditor's claim against the bankrupt's estate in the creditor's name, if the creditor fail to do so. 552 state v. Fortinberry, 54 Miss. 316; WE ARE v. SAWYER, 44 N. H. 198; Remsen v. Graves, 41 N. Y. 471; Davis v. Commissioners, 72 N. C. 441; Mason v. Nichols, 22 Wis. 376; YORKSHIRE RAIL- WAY WAGON CO. v. MACLURE (1881) L. R. 19 Ch. D. 478. Con- tra, Edwards County v. Jennings (Tex. Civ. App. 1895) 33 S. W. 585. 653 Section 16a of the national bankruptcy act of July 1, 1898 (30 Stat. 550 [TJ. S. Comp. St. 1901, p. 3428]). And see Smith v. Gillam, 80 Ala. 296; Rosenthal v. Perkins, 123 Cal. 240, 55 Pac. 804; Lackey v. Steere, 121 111. 598, 13 N. E. 518, 2 Am. St. Rep. 135 ; Post v. Losey, 111 Ind. 74, 12 N. E. 121, 60 Am. Rep. 677; Ray v. Brenner, 12 Kan. 105; Moore v. Waller's Heirs, 8 Ky. (1 A. K. Marsh.) 488; Serra e Hijo v. Hoffman, 30 La. Ann. 67; Bernheimer v. Charak, 170 Mass. 179, 49 N. E. 81; Cochrane v. Cusning, 124 Mass. 219; Ames v. Wilkinson, 47 Minn. 148, 49 N. W. 696; Robinson v. Soule, 56 Miss. 549; Claflin v. Cogan, 48 N. H. 411; McCombs v. Allen, 82 N. Y. 114; Wilson v. Field, 27 Hun (N. Y.) 46; Commercial Nat. Bank of Charlotte v. Simpson, 90 N. C. 467; Sharpe v. Speckenagle, 3 Serg. & R. (Pa.) 463; Easton v. Ormsby, 18 R. I. 309, 27 Atl. 216; Jackson v. Patrick, 10 S. C. (10 Rich.) 197; National Lead Co. v. Montpelier Hardware Co., 73 Vt. 119, 50 Atl. 809; Ewing's Adm'r v. Ferguson's Adm'r, 33 Grat. (Va.) 548; Wolf v. Stix, 99 U. S. 1, 25 L. Ed. 309; Cowper v. Smith, 4 Mees. & W. 519. Contra, Choate v. Quinichett, 12 Heisk. (Tenn.) 427. 554 Thornton v. Thornton, 63 N. C. 211. 555 GUILD v. BUTLER, 122 Mass. 498, 23 Am. Rep. 378; Ex parte Jacobs, L. R. 10 Ch. 211. 238 CREDITOR AND SURETY. (Ch. 5 The fact that the creditor has proved his claim in insol- vency proceedings does not prevent an action against a sure- ty. 556 If a surety is liable for a part only of the creditor's claim, the creditor cannot apply the dividends received by him from the bankrupt principal's estate, on the unsecured part of the debt, and hold the surety liable for the entire amount for which the latter is surety ; but the surety must have the bene- fit of the dividends pro rata. 5 " Bankruptcy of Surety. The discharge in bankruptcy of a surety on the bond of an officer will not discharge him from liability for defaults oc- curring after the discharge, 558 though he has been discharged as to those which might have been proved against his estate. 559 If the surety, after his discharge in bankruptcy, makes an ex- press promise to pay, although not in writing, 680 his liability will revive. 561 A declaration of an intention to pay will not be sufficient. 562 The promise must be unconditional; 568 or, if conditional, a compliance with the conditions must be shown. 56 * Bankruptcy of Co-Surety. The bankruptcy of a co-surety has no effect upon the lia- bility of the remaining sureties to the creditor. 565 see Gregg v. Wilson, 50 Ind. 490; Harris v. Hayes, 171 Mass. 275, 50 N. E. 532. 6 57 GBAY v. SECKHAM (1872) 7 Ch. App. 680; BARD WELL v. LYDALL, 7 Bing. 489. 558 Jones v. Knox, 46 Ala. 53, 7 Am. Bep. 583; Beitz v. People, 72 111. 435, 16 Bank. Beg. 96: Simpson v. Simpson, 80 N. C. 332. 559 TOBIAS v. BOGEBS, 13 N. X. 59; Allen v. McMinn, 76 N. C. 395. The liability of a bankrupt indorser can be proved against his estate, although the paper is not due until after filing petition, but is due within one year. In re Phillip Semmer Glass Co., Limit- ed, 11 Am. Bankr. Bep. 665, affirmed 135 Fed. 77, 67 C. C. A.- 551. 66o Kull v. Farmer, 78 N. C. 339. 56i Marshall v. Tracy, 74 111. 379; Dusenbury v. Hoyt, 53 N- X. 521, 13 Am. Bep. 543. 56 2 Willetts v. Cotherson, 3 111. App. 644. 663 Bandidge v. Lyman, 124 Mass. 361; Stern v. Nussbaum, 5- Daly (N. T.) 382; Moseley v. Coldwell, 62 Tenn. 208; Allen v. Fergu- son, 18 Wall. (U. S.) 1, 21 L. Ed. 854. 66* Apperson v. Stewart, 27 Ark. 619. 665 Sacramento County v. Bird, 31 Cal. 67. § 131) PERSONAL DEFENSES OF SURETY. 239 Debt Barred as to Principal. The. rights of the creditor against the surety are not affected by the fact that the debt is barred against the principal, wheth- er the debt was barred at the time the contract of suretyship was entered into, 666 or subsequently. 567 It sometimes happens that, owing to the removal of the principal to another state, the statute of limitations runs as to one of the parties before it does as to the other. The rights of the creditor are not af- fected by his failure to present the claim against the estate of a deceased principal, 668 unless he is required to do so by stat- ute. 669 It is the duty of the surety, if he would protect him- self, to pay the claim and file it against the estate. Debt Barred as to Surety. The surety, can avail himself of the defense of the statute of limitations independently of the principal. 570 The statute begins to run in favor of a surety when he is liable to a suit, and this may or may not be at the same time the principal be- 68« Shadburne v. Daly, 76 Oal. 355, 18 Pac. 403; Miles v. Linnell, 97 Mass. 298; Worcester Bank v. Hill, 113 Mass. 25; Flack v. Neill, 22 Tex. 253. 5 67 Hooks v. Bank, 8 Ala. 580; Dye y. Dye, 21 Ohio St. 86, 8 Am. Rep. 40; Richards v. Commonwealth, 40 Pa. 146; Marshall v. Hudson, 9 Yerg. (Tenn.) 57; Nelson v. Bank, 69 Fed. 798, 16 C. C. A. 425, 32 U. S. App. 554. Contra, AUCHAMPAUGH v. SCHMIDT, 70 Iowa, 642, 27 N. W. 805, 59 Am. Rep. 459. And see Bridges v. Blake, 106 Ind. 332, 6 N. E. 833, where it was held that a mortgage given by a surety could not be enforced if the debt was barred as to the principal. Where a mortgagee recognized the grantee of the land, who had assumed the debt, as the principal debtor, he could not hold the original mortgagor after the debt was barred as to such grantee. Mulvane v. Sedgley, 63 Kan. 105, 64 Pac. 1038, 55 L. R. A. 552. In Charbonneau v. Bouvet, 98 Tex. 167, 82 S. W. 460, it was held that a debt barred as to the principal could be collected from the estate of a deceased surety; death having sus- pended the statute as to the latter. Where there is a special limita- tion as to official bonds, a surety is discharged when the principal is. State v. Blake, 2 Ohio St. 151. ess Hooks v. Branch Bank, 8 Ala. 580; Banks v. State, 62 Md. 88; Moore v. Gray, 26 Ohio St. 525; Willis v. Chowning, 90 Tex. 617, 40 S. W. 395, 59 Am. St Rep. 842. 56s> Waughop v. Bartlett, 165 111. 124, 46 N. E. 197. 67oMozingo v. Ross, 150 Ind. 6S8, 50 N. B. 867, 41 L. R. A. 612, 65 Am. St. Rep. 387; Dawes v. Shed, 15 Mass. 6, 8 Am. Dec. 80. 240 CREDITOR AND SURETY. (Ch. 5 comes liable. 571 Generally the statute begins to run in favor of a guarantor upon the default of the principal. 572 It be- gins to run against a surety on the bond of an officer from the time of demand upon the officer for a settlement, 573 although such' demand must be made in a reasonable time ; and, if no demand be made, one will be presumed after a lapse of time equal to the statutory period of limitation. 574 Running of Statute Prevented by Fraud. Where the statute does not begin to run against the princi- pal because of fraud in concealing his defalcation, the running of the statute is suspended likewise as to the surety, although the latter be innocent. 575 Running of Statute Suspended by Nezv Promise. The statute of limitations is one of repose, its object be- ing to secure promptness in pressing unpaid claims; and, as it does not make the contract- invalid, but unenforceable merely, the defense may be waived, and it is waived by a new promise by the surety to pay the debt, 576 and the statute begins running again from the time of such new promise, whether the debt was or was not barred at that time. Such new promise may be oral, unless required by the statute to be in writing, though it must show clearly a recognition of the debt and an intention to pay it. bti Hooper v. Hooper, 81 Md. 155, 31 Atl. 508, 48 Am. St. Rep. 496; WofEord v. Unger, 55 Tex. 480. The statute begins to run on a demand note the day it is given by the sureties, although they agreed to be liable without notice as long as any liability on the part of the principal existed. Newell v. Clark, 73 N. H. 289, 61 Atl. 555. Where a statute provides that suit must be brought with- in two years after the default of the principal, it means his first default. United States v. Mark, 3 Wall. Jr. 358, Fed. Oas. No. 11,990. "2 State Bank v. Knotts, 10 Rich. Law, 543, 70 Am. Dec. 234. "s Soule v. Norwood, 30 La. Ann. 486; Kirk v. Sportsman, 48 Mo. 383. 574 Keithler v. Foster, 22 Ohio St. 27. "a EISING v. ANDREWS, 66 Conn. 58, 33 Atl. 585, 50 Am. St Rep. 75 ; McMullen v. Winfield Bldg. Ass'n, 64 Kan. 298, 67 Pae. 892, 56 L. R. A. 924, 91 Am. St. Rep. 236. 5 76 Perkins v. Cheney, 114 Mich. 567, 72 N. W. 595. 68 Am. St. Rep. 495. § 131) PERSONAL DEFENSES OP SURETY. 241 Running of Statute Suspended by Part Payment. A waiver of the defense of the statute of limitations may be shown likewise by a part payment of the debt, as that is a recognition of the existence of the obligation. 577 While, un- der the old common-law rule, a part payment by one of two or more joint debtors would revive the liability of all, the mod- ern rule is that part payment by a principal debtor will not revive the liability of a surety jointly liable with him. 678 In some states this is the result of statutory enactment. 579 A dis- tinction is made, in some jurisdictions, between a payment by the principal before the debt is barred as to the surety arid a payment after that time, holding, in the first case, that the statute is started anew as to both, 580 but that part. payment Vby the principal after the debt is barred as to the surety will ^Jpot affect the latter. 581 j If the principal and surety are not jointly liable, payment '^■""ifby the former cannot affect the rights and liabilities of the Matter in any case. 582 s" Hinds v. Ingham, 31 III. 400. 678 Waughop v> Bartlett, 165 111. 124, 46 N. E. 197; Mozlngo v. Ross, 150 Ind. 688, 50 N. E. 867, 41 L. R. A. 612, 65 Am. St. Rep. 387; Steele v. Souder, 20 Kan. 39; Mainzinger v. Mohr, 41 Mich. 685, 3 N. W. 183; Pfenninger v. Kokesch, 68 Minn. 81, 70 N. W. 867; Whipple v. Stevens, 22 N. H. 219; McMullen v. Rafferty, 89 N. Y. 456; Shoemaker v. Benedict, 11 N. Y. 176, 62 Am. Dec. 95; Hance v. Hair, 25 Ohio St. 349; Coleman v. Fobes, 22 Pa. 156, 60 Am. Dec. 75; Walters v. Craft, 23 S. C. 578, 55 Am. Rep. 44. "a Quimby v. Putnam, 28 Me. 419; Peirce v. Tobey, 5 Mete. (Mass.) 168; Carlton v. Coffin, 27 Vt. 496; Coleman v. Ward, 85 Wis. 328, 55 N. W. 695; Cockerill v. Sparkes, 1 H. & C. 699. 5 80 Tillinghast v. Nourse, 14 Ga. 641; Block v. Dorman, 51 Mo. 31; Corlies v. Fleming, 30 N. J. Law, 349; Copeland v. Collins, 122 N. C. 619, 30 S. E. 315; Woonsocket Inst. v. Ballou, 16 R. I. 355, 16 Atl. 144, 1 L. R. A. 555. 581 Borden v. Peay, 20 Ark. 293, Kimble v. Cummins, 3 Mete. (Ky.) 327; Hooper v. Hooper, 81 Md. 155, 31 Atl. 508, 48 Am. St. Rep. 496; Long v. Miller, 93 N. C. 227; Goudy v. Gillam, 6 Rich. Law (S. C.) 28. -\ 58a Hunter v. Robertson, 30 Ga. 479. A part payment by the prin- cipal cannot affect the liability of a guarantor. Meade v. McDowell, 5 Bin. (Pa.) 195. Nor of an indorser. Maddox v. Duncan, 143 Mo. 613, 45 S. W. 688, 41 L. R. A. 581, 65 Am. St Rep. 678. Childs' Suretyship— 16 242 CREDITOR AND SURETY. (Ch. 5 Corporate Suretyship. In bonds executed by corporate sureties, a provision is made sometimes that an action must be brought on the bond with- in a designated period, which is shorter than the statutory one. Such conditions are valid, and will be enforced by the courts, 5 S3 unless delay is unavoidable. 684 The business of a large corporation cannot be conducted successfully, unless claims are presented within such time as will enable a full in- vestigation to be made while those who have knowledge of the facts are accessible and the facts fresh in their memories. Declaration of War. A surety remains liable although, on account of war being declared, the principal, for the time being, has become an alien enemy. 585 PAYMENT, TENDER, RELEASE, AND FAILURE OF CON- SIDERATION. 132. A surety -will be discharged by— (a) Payment by the snrety or by the principal. (b) Tender by the snrety or by the principal; and snch ten- der need not be kept good. (c) A release from the creditor or obligee to the snrety or to the principal. (d) Failure of consideration. Payment. If the contract of suretyship provides for the payment of money, payment in money or in property 686 by either the 583 California Sav. Bank v. American Surety Co. (C. C.) 87 Fed. 118. ssi Jackson v. Fidelity Co., 75 Fed. 359, 21 C. C. A. 394. Where a bond required suit to be brought within six months after the first breach, it is sufficient if suit be brought within six months after the obligee acquires knowledge of a breach. Novelty Mill Co. v. Heinzerling, 39 Wash. 244, 81 Pac. 742. 585 Bean v. Chapman, 62 Ala. 58; PAUL v. CHRISTIE, 4 Har. & McH. (Md.) 161. ^5 86 Ruble v. Norman, 7 Bush (Ky.) 582. § 132) PAYMENT, TENDEB, KELEASE. 243 principal, 587 or by any of joint principals, 6 ss or by the sure- ty, 689 is performance of the contract, and discharges the sure- ty. Where the creditor has disposed of property of the prin- cipal given him to secure the debt, the surety can call upon the creditor for an accounting. 590 Payment by Negotiable Instrument. If the principal give a new note as payment, this will dis- charge a surety on the old debt, 691 unless the note be void. 592 Where the principal gave the creditor a check, which would have been paid if promptly presented at the bank, but which was retained by the creditor seven days, at which time it was dishonored, owing to lack of funds on deposit, a surety for the debt for which the check was given in payment was dis- charged. 683 687 Neylan v. Green, 82 Cal. 128, 23 Pac. 42; Petefish v. Watkins, 124 111. 384, 16 N. B. 248; Ruble v. Norma n. 7 Bush (Ky.) 582; Stew- art v. Levis, 42 La. Ann. 37, 6 South. 898; Burnet v. Courts, 5 Har. & J. (Md.) 78; Chapman v. Collins, 12 Cush. (Mass.) 163; Coots v. Farnsworth, 61 Mich. 497, 28 N. W. 534; Foster v. Walker, 34 Miss. 365; Manufacturers' Union Co. v. Todd, 4 Mo. App. 591; Eastman v. Plumer, 32 N. H. 239; Lancey v. Clark, 64 N. Y. 209; Savage v. Putnam, 32 N. Y. 501; Woodman v. Mooring, 14 N. C. 237; Rudolph v. Hewitt, 11 S. D. 646, 80 N. W. 133; Gibson v. Rix, 32 Vt. 824; Greening v Patten, 51 Wis. 146, 8 N. W. 107; Kinnaird v. Webster, 10 Ch. Div. 139. ess HOLMES v. DAY, 108 Mass. 563. Payment by a joint debtor of his share does not release him as to the remainder. Sterling v. Stewart, 74 Pa. 445, 15 Am. Rep. 559. 6 89 if ; after a surety has paid the debt, judgment against the principal be reversed, he cannot recover from the creditor the amount paid. Garr v. Martin, 20 N. Y. 306. Sao See ante, § 127. For a similar rule as between co-sureties, see post, c. VII, note 42. 59i Morris Canal & Banking Co. v. Van Vorst, 21 N. J. Law, 100. 692 The sureties are not discharged if the principal's note be void on account of usury. Mitchell v. Cotten, 2 Fla. 136. Or because ultra vires. Williams v. Gilchrist, 11 N. H. 535. In KIRBY v. LANDIS, 54 Iowa, 150, 6 N. W. 173, where the principal gave the creditor a new note with forged signatures, the sureties were held to be discharged because they were prejudiced by being led to be- lieve that the old note had been paid; but it was said that the 593 Fegley v. McDonald, 89 Pa. 128; Okie v. Spencer, 1 Miles (Pa.) 299. 244 CREDITOR AND SURETY. (Ch. 5 Settlement by Principal for Less Than Amount Due. If the principal effects a settlement with the creditor for less than the amount due, the surety cannot be held for the balance; 59 * and, if the creditor take judgment against the principal for less than the amount due, he cannot maintain a suit against the surety for the remainder of the debt. 595 Payment by Imprisonment. In states where imprisonment for debt is allowed, and such imprisonment is a satisfaction of the debt, a surety for the debt cannot be held during the continuance of the imprison- ment of the principal. 596 Illegal Payments. If the payment by the principal be illegal, and the creditor is compelled to pay over the money to others, the surety will not be discharged. Thus, payment by the principal, which the creditor is obliged to give up as being a preference in vio- lation of the bankruptcy act, will not discharge a surety; 597 but, in some states, it is. otherwise if the creditor knows of the illegal preference. 698 Payment with Borroived Money. The surety is discharged by payment, no matter by whom; 599 nor does it matter how the principal obtains the sureties would have remained liable if they had not been aware of the surrender of the old note. 594 Heitz v. Atlee, 67 Iowa, 483, 25 N. W. 742. bob Couch v. Waring, 9 Conn. 261. 59 6 Koenig v. Steckel, 58 N. Y. 475. See, also, Brown v. Com- monwealth, 114 Pa. 335, 6 Atl. 152. If the imprisonment of the principal does not discharge him from liability, the surety's lia- bility is not affected. Moore v. Loring, 106 Mass. 455; Prusia v. Brown, 45 Hun (N. Y.) 80. 5 97 Watson v. Pague, 42 Iowa, 582; Harner v. Batdorf, 35 Ohio St. 113; Hooter v. Blount (Tex. Civ. App. 1906) 97 S. W. 1083;' PETTY v. COOKE (1871) L. R. 6 Q. B. 794. 598 Northern Bank of Kentucky v. Cooke, 13 Bush (Ky.) 340; In re Ayers, 6 Biss. (U. S.) 48, Fed. Cas. No. 685. 599 Paine v. Drury, 19 Pick. (Mass.) 400. Where a leased house ■was destroyed by fire, the fact that the landlord collected insur- ance for its full value does not affect the liability of a guarantor for the rent, as the landlord is not under any obligation to insure for the guarantor. Kingsbury v. Westf all, 61 N. Y. 356. § 132) PAYMENT, TENDER, BELEABE, 245 money. If the principal borrow the money for the purpose, this gives the lender no rights against the surety. 600 If a third person gives money to the principal with instructions to buy the note, but the principal pays the money to the creditor, who in good faith receives it as payment, the surety is dis- charged. 601 If a third person, at the request of the princi- pal alone; pays the debt, he cannot recover from a surety. Application of Payments. If 'the principal owe the creditor two or more debts, upon one or more, but not upon all, of which. sureties are liable, and the principal makes a payment less than the total indebtedness, a question may arise as to which of the debts is paid, and whether a surety has been discharged by such payment. The law,, gives a debtor the right, when making a partial payment, to designate upon which debt it must be applied, and the creditor is bound to respect his wishes, 602 although he may prefer to apply it to a different account. If the debtor re- quest its application to a debt upon which a surety is liable, the creditor must apply it so, and thus discharge the surety, leaving unsecured debts unpaid. 608 If the debtor make a pay- ment without designating any particular indebtedness upon which it is to be applied, the creditor is at liberty to apply it any time as he pleases 604 — on an unsecured debt if he choose, leaving the debt upon which a surety is liable unpaid. 605 If neither the debtor nor the creditor make application, the cred- itor merely giving the debtor a general credit of so much paid, and their affairs afterwards become a matter of judicial in- vestigation, the court will apply the payment as justice and equity seem to require. 606 6oo Burnet v. Courts, 5 Har. & J. (Md.) 78; Rolfe v. Lamb, 16 Vt. 514. soi Eastman v. Plumer, 32 N. H. 238. 602 Chapman v. Commonwealth, 25 Grat. (Va.) 721. 603 Allen v. Jones, 8 Minn. 202 (Gil. 172); United States v. Coch- ran, 2 Brock. (U. S.) 274, Fed. Cas. No. 14,821. 604 Wanamaker v. Powers (1906, N. T.) 79 N. B. 1118, affirming 102 App. Div. 485, 93 N. Y. Supp. 19. 60s stone v. Seymour, 15 Wend. (N. Y.) 20; Allen v. Culver, 3> Denio (N. Y.) 285. 60s Pickering v. Day, 2 Del. Ch. 333; Seymour v. Van Slyck, 8 246 CREDITOR AND SURETY. (Ch. 5 Application of Security. If the principal has given the creditor security, with in- structions to apply it on an indebtedness for which a surety is liable, the surety will be discharged if it be applied other- wise, 607 though misapplied with the consent of the princi- pal; 608 but, if the principal give collateral security generally, the creditor may apply the proceeds to any debt he sees fit. 609 Payment with Surety's Money. The rules as above set forth in regard to the application of payments apply to payments by the debtor with his own money; and in such cases, in the absence of any agreement, a surety cannot interfere with the respective rights of the debtor or of the creditor to make application. 610 But if the surety has been instrumental in raising the money for the payment of a particular debt, and this is known to the cred- itor, he must make application to the debt upon which such surety is liable, 611 although the principal may consent to a different application. Thus, where the money has been rais- ed by the indorsement of a surety for the express purpose of enabling funds to be raised to pay off a particular debt, the money must be applied as the surety intended. 612 If the debtor has applied a payment to a debt for which a surety was liable, such application cannot be changed after- wards without the consent of the surety; 61S and where the Wend. (N. Y.) 403; Stone v Seymour, 15 Wend. (N. Y.) 19; Pierce v. Sweet, 33 Pa. 151. soTMellendy v. Austin, 69 111. 15; Hidden v. Bishop, 5 R. I. 29; 'Baugher v. Duphorn, 9 Gill (Md.) 314; Rosborough v. McAIiley, 10 S. C. 235. 60s Donally v. Wilson, 5 Leigh (Va.) 329. 609 Martin v. Pope, 6 Ala. 532, 41 Am. Dec. 66; Stamford Bank v. Benedict, 15 Conn. 437; Hanson v. Manley, 72 Iowa, 48, 33 N. W. 357; Fall River Nat Bank v. Slade, 153 Mass. 415, 26 N. B. 843, 12 L. R. A. 131; Mathews v. Switzler, 46 Mo. 301; Lester v. Houston, 101 N. C. 605, 8 S. E. 366; Gaston v. Barney, 11 Ohio St. 506; North v. La Flesh, 73 Wis. 520, 41 N. W. 633. eio Robson v. McKoin, 18 La. Ann. 544. en Bayer v. Lugar, 106 App. Div. 522, 94 N. Y. Supp. 802. ei2 HARDING v. TIFFT, 74 N. Y. 461. ei3 Miller v. Montgomery, 31 111. 350; Woodman v. Mooring, 14 N. C. 237. This rule governs, although the application has been made by mistake. Brown v. Haggerty, 26 111. 469. § 132) PAYMENT, TENDER, RELEASE. 247 right to make the application has passed to the creditor by a failure of the debtor to make any designation, and the creditor has exercised his right, he cannot be compelled afterwards to apply it otherwise. Where the creditor receives a payment in ignorance of the fact that a surety has any interest in its ap- plication, and the debtor makes no application at the time of payment, the creditor, after applying the payment to a debt other than the one for which such surety was liable, is not bound to make any change thereafter. 614 Application by. Court. If the parties have made no application, and it must be made by the court, the latter will be governed by the circum- stances of each particular case. Generally, payments on a running account will be applied to the oldest items, whether secured or not. 615 A payment will be applied upon a debt that is due in preference to one that is not ; and, as between a secured and an unsecured debt, the application is made, gen- erally, so as to give the creditor the best security for the in- debtedness remaining unpaid. 618 Tender. While the general rule is that a tender, to be effective, must be kept good, 617 the rule does not apply in the case of a con- tract of suretyship. 618 A tender by the principal, 619 or by the ei* State, to Use of Buchanan County, v. Smith, 26 Mo. 226, 72 Am. Dec. 204; HARDING v. TIFFT, 75 N. Y. 461. 616 Worthley v. Emerson, 116 Mass. 374; Frost v. Mixsell, 38 N. J. Eq. 586; Truscott v. King, 6 N. Y. 147; Hollister v. Davis, 54 Pa. 508; Berghaus v. Alter, 9 Watts (Pa.) 386; Pierce v. Knight, 31 Vt. 701. sis Barbee v. Morris, 221 111. 382, 77 N. E. 589; Lash v. Edgerton, 13 Minn. 210 (Gil. 197); Langdon v. Bowen, 46 Vt. 512. «" Clark, Cont (2d Ed.) p. 440. aisRandol v. Tatum, 98 Cal. 390, 33 Pac. 433; Smith v. Loan Ass'n, 119 N. C. 257, 26 S. E. 40. See, however, State, to Use of Haines, v. Alden's Securities, i2 Ohio, 59. sis Life Ass'n of America v. Neville, 72 Ala. 517; Curiae v. Pack- ard, 29 Cal. 194; Bonner v. Nelson, 57 Ga. 433; Spurgeon v. Smitha, 114 Ind. 453, 17 N. E. 105; Fisher v. Stockebrand, 26 Kan. 565; Hansford v. Perrin, 45 Ky. (6 B. Mon.) 595; Johnson v. Mills, 10 Cush. (Mass.) 503; McQuesten v. Noyes, 6 N. H. 19; Johnson v. Ivey, 44 Tenn. (4 Cold.) 608, 94 Am. Dec. 206; Watson v. Read, 1 248 CREDITOR AND SURETY. (Ch. 5 surety, 620 which is refused by the creditor, will discharge the surety at once from all liability. 621 If the creditor refuses to accept payment when tendered by the principal, it would be very unjust to allow the creditor afterwards to proceed against a surety, and to collect what he had refused formerly at the hands of the one primarily liable. If the tender is made by the surety, and refused, it takes away the surety's right to proceed against the principal for indemnity. The surety can- not proceed against the principal until payment has been made; 622 and, if payment is not accepted by the creditor, the right to proceed against the principal is delayed, and in the meantime the financial condition of the principal may be changed, so as to make it practically impossible for the sure- ty to recover anything. To release a surety, the tender must be legal 62S and un- conditional. 624 A mere request from the creditor to the prin- cipal to keep the money would not be sufficient to release a surety for the debt, though the principal might be ready and willing to pay. 626 Release. A release 626 of the principal will discharge the surety 627 to the extent of the amount released, 628 because it deprives Tenn. Oh. 196; Joslyn v. Eastman, 46 Vt. 258; Mitchell v. Roberts (C. C.) 5 McCrary (U. S.) 425, 17 Fed. 776. 62o Hayes v. Josephi, 26 Cal. 535. 82i O'Conor v. Morse, 112 Cal. 31, 44 Pac. 305, 53 Am. St. Rep. 155. 622 See post, § 154. 623 Hampshire Manufacturers' Bank v. Billings, 17 Pick. (Mass.) 87. A tender of a part of the debt is not sufficient. McCann v. Dennett, 13 N. H. 528. Nor an offer to pay all. Winne v. Colorado Springs Co., 3 Colo. 155. A tender of property is not sufficient. Williams v. Reynolds, 11 La. 230. Nor would counting out the money alone suffice. Wilson v. McVey, 83 Ind. 108. 624 Forest Oil Co.'s Appeals, 118 Pa. 138, 12 Atl. 442, 4 Am. St. Rep. 584. 625 CLARK v. SICKLER, 64 N. Y. 231, 21 Am. Rep. 606. 6 2e An agreement to release the principal on part payment would not discharge a surety for the debt, there being no consideration. Oberndorff v. Union Bank, 31 Md. 126, 1 Am. Rep. 31. A covenant 62 7 gee note 627 on following page, ess See note 628 on following page. § 132) PAYMENT, TENDEE, RELEASE. 249 the surety of his right to indemnity from the principal. If the surety could be compelled to pay the debt after the re- lease of the principal, he could recover nothing from the principal, for the latter could say that he did not owe anything, having been released; or, if the surety were allowed to re- cover from the principal, the release would have no practical effect, but result merely in compelling the creditor to do indi- rectly what he could not do directly. Release Obtained by Misrepresentation. It does not make any difference that the release of the debt may have been the result of a misrepresentation made to the not to sue for a specified time is not a release; the creditor having the legal right to sue, being liable to an action for damages for violating his covenant. Shed v. Pierce, 17 Mass. 628; Dow v. Tuttle, 4 Mass. 414, 3 Am. Dec. 226; PRICE v. BARKER, 4 El. & Bl. 760. 627 state v. Parker, 72 Ala. 181; Bull v. Coe, 77 Cal. 54, 18 Pac. 808, 11 Am. St. Rep. 235; Brown v. Ayer, 24 Ga. 288; Trotter v. Strong, 63 111. 272; Jamieson v. Holm, 69 111. App. 119; Malanaphy v. Fuller, 125 Iowa, 719, 101 N. W. 640, 106 Am. St. Rep. 332; Lock- wood v. Penn, 22 La. Ann. 29; Anthony v. Capel, 53 Miss. 350; Prior v. Kiso, 81 Mo. 241; PHELPS v. BORLAND, 103 N. Y. 406, 9 N. E. 307, 57 Am. Rep. 755; Kirby v. Taylor, 6 Johns. Ch. (N. T.) 242; Riggin v. Creath, 60 Ohio St. 114, 53 N. E. 1100; Bridges v. Phillips, 17 Tex. 128; Paddleford v. Thacher, 48 Vt. 574; CRAGOE v. JONES (1873) L. R. 8 Exch. 81. As each indorser is a principal to subsequent ones, a release of any indorser releases subsequent indorsers; the latter occupying the position of surties for all prior parties. NEWCOMB v. RAYNOR, 21 Wend. (N. Y.) 108, 34 Am. Rep. 219. A discharge of the principal releases his bail, without surrender. Kennedy v. Adams, 5 Har. (Del.) 160; Champion v. Noyes, 2 Mass. 481; Nettleton v. Billings, 17 N. H. 453-; Rowland v. Stevenson, 6 N. J. Law, 149; Olcott v. Lilly, 4 Johns. (N. Y.) 407; Boggs v. Teackle, 5 Bin. (Pa.) 332; Belknap v. Davis, 21 Vt. 409; Claggett v. Ward, 5 Cranch, C. C. (U. S.) 669, Fed. Cas. No. 2,780; Lewis v. Jones, 4 Barn. & C. 506. Where a mortgage is a common burden on several lots, and one of them is sold with the knowledge of the mortgagee, his subsequent release of one of the remaining lots will discharge the lot sold to the extent of the pro rata value of the lot released. Taylor v. Short, 27 Iowa, 361, 1 Am. Rep. 280; Parkman.v. Welch, 19 Pick. (Mass.) 231; Stevens v. Cooper, 1 Johns. Ch. (N. Y.) 425, 7 Am. Dec. 499; Denster v. McOamus, 14 Wis. 307. A surety will not be released if he consent either before or at the time the release is given. See ante, § 105. ess Loos v. McCormack, 46 Misc. Rep. 144, 93 N. Y. Supp. 1088. 250 CREDITOR AND SURETY. (Ch. 5 creditor as to the effect of the release. Where the creditor received from the principal a part of the amount due, and re- leased him as to the remainder on account of a statement made by his agent that the surety would continue liable, the legal effect of the act would not be changed, as every one is sup- posed to know the law. 629 Release Obtained by Fraud. Where the surety is released through the fraud of the principal, the creditor, upon discovery of the fraud, will be restored to his rights against the surety, although the surety was ignorant of the fraud. Thus, where the creditor, at the suggestion of the surety, takes a mortgage from the principal, which the latter alone knows to be fictitious, and the surety is released, the rights of the creditor against the surety can be revived. 630 The cancellation of a bond pursuant to law will discharge the sureties thereon; 631 but where the principal, who has giv- en a bond under order of the court, has been charged with mismanagement of funds, those entitled to receive such funds acquire a vested interest in the bond, and the court has no right to release it without the consent of those so interested. 832 Release of One or More Installments. If the indebtedness for which a surety is bound be payable in installments, a release of the principal as to one or more in- stallments will not affect the liability of the surety as to those installments not released. 633 Each installment is regarded as a separate demand. Thus, a guarantor of the payment of rent is not discharged, as to rent already due, by a surrender of the lease. 634 6 2» Lewis v. Jones, 4 Barn. & C. 506. «3o Scholefield v. Tenipler, 4 De Gex & T. 429, affirming John, 155. 63i Lockwood v. Penn, 22 La. Ann. 29. 6 32 Pollock v. Cox, 108 Ga. 430, 34 S. E. 213; Rochereau v. Jones, 29 La. Ann. 82; DBOBALD v. OPPERMANN, 111 N. Y. 531, 19 N. B. 94, 2 L. R. A. 644, 7 Am. St. Rep. 760; Commonwealth, to Use of Shaffner's Adm'r, v. Rogers, 53 Pa. 470. 633 Coe v. Cassidy, 72 N. Y. 133, affirming 6 Daly (N. Y.) 242; Ducker v. Rapp, 67 N. Y. 464. 634 KINGSBURY v. WESTPALL, 61 N. Y. 356; Kingsbury v. Wil- liams, 53 Barb. (N. Y.) 142. § 132) PAYMENT, TENDER, RELEASE. 251 Release Will Not Discharge Indemnified Surety. If the surety be fully indemnified, the rule does not apply, as the surety in such a case occupies the position of a princi- pal, and cannot be injured by the principal's release. 835 Release with Reservation of Rights Against Surety. The rule does not apply if the creditor, when releasing the principal, specifically reserves his remedies against the sure- ty ; 636 such a reservation being equivalent to a release on con- dition that the surety shall consent to remain bound. If the surety is compelled to pay the debt, after a release by the creditor with reservation of his rights, the surety can recover indemnity from the principal; the latter impliedly having as- sented thereto under the conditional release given. Release of Surety Discharges Supplemental Surety. The release of a surety will discharge a supplemental sure- ty ; e37 the surety occupying to the supplemental surety the relation of principal. This most frequently occurs where suc- cessive bonds have been taken in judicial proceedings, with a different set of sureties for each. Suppose suit be brought against the principal on a note signed by a surety, and judg- ment be recovered against the principal, who appeals without the consent of the surety. Judgment against the principal being affirmed, he takes the case to a higher court, where he also loses. At each appeal a bond has been given, with dif- ferent sureties on each. The primary liability rests on the latter set, 038 though they all are liable to the creditor. 639 The ess Moore v. Paine, 12 Wend. (N. Y.) 123; JONES v. WARD, 71 Wis. 152, 36 N. W. 711. es6 Deering v. Moore, 86 Me. 181, 29 Atl. 988, 41 Am. St. Rep. 534; Morgan v. Smith, 70 N. Y. 537. 637 Barnes v. Mott, 64 N. Y. 397, 21 Am. Rep. 625; affirming 6 Daly (N. Y.) 150; Culliford v. Walser, 158 N. Y. 65, 52 N. B. 648, 70 Am. St. Rep. 437. As each indorser is a supplemental surety for prior indorsers, a release of any one indorser will release all those ■who became indorsers after the one released. NEWCOMB v. RAY- NOR, 21 Wend. (N. Y.) 108, 34 Am. Dec. 219. 638 The primary liability rests upon the sureties in an injunction bond given to stay a judgment against the principal. Brandenburg v. Flynn, 12 B. Mon. (Ky.) 397. ess Shannon v. Dodge, 18 Colo. 164, 32 Pac. 61; Becker v. People, 164 111. 267, 45 N. E. 500; Coonradt v. Campbell, 29 Kan. 391; Boaz 252 CREDITOR AND SURETY. (Ch. 5 original surety on the note occupies the position of a supple- mental surety; and, upon payment of the debt to the cred- itor, he will be entitled to the benefits of either appeal bond. The sureties upon the first appeal bond, if compelled to make payment, can have redress against the sureties upon the last ap- peal bond ; the sureties on the first bond occupying the position of supplemental sureties to those on the last bond. Each time a bond has been given, it has tied the hands of those liable to the creditor, and has postponed their right of subrogation, by substituting a new set of persons liable to the creditor. 640 The sureties in each bond, when given, interfered with the rights of preceding sureties. They secured a delay by promis- ing to pay the judgment, and this delay might be prejudicial to 'those already liable. 641 It results from this that a release of the last set of sureties would release all the other sure- ties. 642 Release of Co-Surety. The release 643 of one co-surety by the creditor will release the others to the extent that the released surety was equitably bound. 644 If; however, the creditor reserves his rights against v. Milliken, 4 Ky. Law Rep. 700; CHESTER v. BBODERICK, 131 N. Y. 549, 30 N. E. 507; Church v. Simmons. 83 N. Y. 261; Moore v. Lassiter, 16 Lea (Tenn.) 630; Howard Ins. Co. v. Silverberg (C. C.) 89 Fed. 168. 640 Hinckley v. Kreitz, 58 N. Y. 583. en Pott v. Nathans, 1 Watts & S. (Pa.) 155, 37 Am. Dec. 456. 6*2 Lewis v. Armstrong, 47 Ga. 289; Culliford v. Walser, 158 N. Y. 65, 52 N. E. 648, 70 Am. St. Rep. 437; Hinckley v. Kreitz, 58 N. Y. 583. 643 a release of a co-surety, without consideration, not being a binding agreement, does not affect the others. CITY OF DEERING v. MOORE, 86 Me. 181, 29 Atl. 988, 41 Am. St. Rep. 534. 644 jemison v. Governor, 47 Ala. 390; Lewis v. Armstrong, 80 Ga. 402, 7 S. E. 114; Thompson v. Adams, Freem. Ch. (Miss.) 225; Mor- gan v. Smith, 70 N. Y. 537; Wanamaker v. Powers (N. Y. 1906) 79 N. E. 1118, affirming 102 App. Div. 485, 93 N. Y. Supp. 19; Schock v. Miller, 10 Pa. (10 Barr) 401; Waggener v. Dyer, 11 Leigh (Va.) 384. See, also, Gordon y. Moore, 44 Ark. 349, 51 Am. Rep. 606; Smith v. State, 46 Md. 617; State ex rel. Midgett v. Matson, 44 Mo. 305; Massey v. Brown, 4 S. C. 85. This is regulated by statute in some states. State, to Use of Southern Bank, v. Atherton, 40 Mo. § 132) PAYMENT, TENDER, RELEASE. 253 the remaining co-sureties, it is a conditional release, and does not affect the creditor's rights. 645 It is equivalent to a release on condition that the others will remain bound for the full amount, and gives implied assent, on the part of the one re- leased, to be liable to his co-sureties for his proportionate share, if they pay the debt and desire to hold him. Release of Surety Does not Affect Principal's Liability. A release of the surety by the creditor will discharge him, but will have no effect upon the liability of the principal, 646 although after judgment, 647 as the discharge of the surety is nothing more than the principal himself was bound to ef- fect, 648 and no injustice is done him. 649 The surety is not bound to indemnify him. This is clear in the case of a surety in the narrow sense, but the confusion arises in cases of suretyship by operation of law. 650 As the grantee of lands, who has assumed the mortgage debt, is primarily liable, 651 and the mortgagor be- comes a surety for the debt, the creditor can release the mort- gagor without affecting the liability of the grantee. 652 209; Alford v. Baxter, 36 Vt. 158. The proportionate amount to which a co-surety is released by the release of another is deter? mined by the solvency of the co-sureties. DODD v. WINN, 27 Mo. 501. If a surety is bound jointly with others, an unqualified release of one will discharge all at law. Spencer v. Houghton, 68 Cal. 82, 8 Pac. 679; Clark v. Mallory, 185 111. 227, 56 N. B. 1099. And see Ward v. National Bank, 8 App. Cas. 755. 845 Hood v. Hay ward, 124 N. Y. 1, 26 N. E. 331; Glasscock v. Hamilton, 62 Tex. 143; Hewitt's Adm'r v. Adams, 1 Pat. & H. (Va.) 34; THOMPSON v. LACK, 3 C. B. 540; Macdonald v. Whitfield, 27 Can. 94. sis Union Nat. Bank v. Legendre, 35 La. Ann. 787; Wolf v. Pink, 1 Pa. (1 Barr) 435, 44 Am. Dec. 141; Mcllhenny v. Blum, 68 Tex. 197, 4 S. W. 367. 6*7 Mortland v. Himes, 8 Pa. (8 Barr) 265; Ragsdale v. Gossett, 70 Tenn. (2 Lea) 729. And see ante, § 101. 6*8 Carroll v. Corbitt, 57 Ala. 579; Burson v. Kincaid, 3 Pen. & W. (Pa.) 57. 649 Fewlass v. Abbott, 28 Mich. 270. 6 50 see ante, § 68. 65i See ante, § 18, (a), (2). 652 Bentley v. Vanderheyden, 35 N. Y. 677; Tripp v. Vincent, 3 Barb. Ch. (N. Y.) 613; Richmond v. Aiken, 25 Vt. 324. 254 CREDITOR AND SURETY. (Ch. 5 Failure of Consideration. As a surety would not be bound by a want of consideration for his contract, 663 so he is discharged by a failure of consid- eration. 654 Thus, where a person assumes liability on con- sideration that the creditor will discontinue a suit brought against the principal, such person will be discharged if the creditor proceed with the suit. 656 This defense, however, cannot be set up against the holder of a negotiable instrument who has acquired the same for value without notice. 656 LIABILITY OF SURETY ON CONTRACT ENTERED INTO BY PRINCIPAL UNDER DURESS, OR THROUGH FRAUD, OR IF ILLEGAL. 133. A surety will not lie bound if the principal executed the contract nnder duress, unless the surety, signed with knowledge thereof; nor will a surety be bound if the principal was induced to enter into his contract through the fraud of the creditor; or if the principal's contract be illegal. Duress ' of Principal. While duress of the surety would be a good defense to him, 657 it is not, generally, a sufficient defense for the surety that the principal was under duress, 658 ' unless the surety exe- 653 Ante, § 49. «54 Harney v. Laurie, 13 111. App. 400; Walter A. Wood Mowing & Reaping Mach. Co. v. Land, 98 Ky. 516, 32 S. W. 607; BAKEE v. KENNETT, 54 Mo. 82; SAWYER v. CHAMBERS, 43 Barb. (N. Y.) 622; Gunnis v. Weigley, 114 Pa. 191, 6 Atl. 465; Carroll County Sav. Bank v. Strother, 28 S. C. 504, 6 S. E. 313; Cooper v. Joel, 1 De G., F. & J. 240. Where a bank takes a note signed by sureties, and knows that the proceeds are wanted for a particular purpose, the sureties will not be liable for any portion appropriated to any other purpose. Planters' State Bank v. Schlamp (Ky. 1907) 99 S. W. 216. 6 55 Bookstaver v. Jayne, 60 N. Y. 146. 656 Stone v. Bond, 2 Heisk. (Tenn.) 425; Norton, Bills and Notes (3d Ed.) p. 276. 6 57 Ante, § 55. «58Haney v. People, 12 Colo. 345, 21 Pac. 39; Spicer v. State, 9 Ga. 49; Peacock v. People, 83 111. 331; Huggins v. People, 39 111. 241; Tucker v. State, 72 Ind. 242; Thompson v. Buckhannon, 2."5 Ky. (2 J. J. Marsh.) 416; Oak v. Dustin, 79 Me. 23, 7 Atl. 815, 1 Am. § 133) LIABILITY OF SURETY ON CONTRACT. 255 cuted the contract in ignorance thereof. 669 If the surety is aware of the duress, it might be said that he consented to be bound notwithstanding the principal's lack of liability; but to hold him liable where he was ignorant of the duress either would be taking away his right of indemnity against the prin- cipal, upon which he might have relied, or, if given the right to recover from his principal, it would be making the principal indirectly liable when he could not be proceeded against direct- ly, thus allowing the wrongdoer to take advantage of his own wrong. 860 Surety Not Liable if Contract Entered into by Principal through Fraud. If the principal is not bound, owing to fraud practiced upon him by the creditor, the surety, likewise, is not bound. 661 Where a contract of sale of a patent right was entered into, and a third person deposited a government bond with the seller to secure the purchase price, upon repudiation of the sale by the buyer on account, of fraud, the owner of the bond could recover the amount of the bond from the seller. 662 Illegality of Principal's Contract is a Defense to the Surety. If the principal's contract is illegal, the surety is not lia- ble. 663 St. Rep. 281; Harris v. Carmody, 131 Mass. 51, 41 Am. Rep. 188; Robinson v. Gould, 11 Cush. (Mass.) 55; Simms v. Barefoot's Ex'rs, 3 N. C. 402; HAZARD v. GRISWOLD (C. 0.) 21 Fed. 178; Hus- combe v. Standing Co., Cro. Jac. 187; 40 Cent. Dig. col. 1649. 8 59 GRIFFITH v. SITGREAVES, 90 Pa. 161. In Patterson v. Gib- son, 81 Ga. 802, 10 S. E. 9, 12 Am. St. Rep. 356, it is said that knowl- edge of facts constituting duress (in this case, illegal imprisonment) is not knowledge of duress. 6so Owens v. Mynatt, 1 Heisk. (Tenn.) 675. eel Bennett v. Corey, 72 Iowa, 476, 34 N. W. 291; Hazard v. Ir- win, 35 Mass. (18 Pick.) 95; PUTNAM v. SCHUYLER, 4 Hun (N. T.) 166, 6 Thomp. & C. 485; Coleman v. Waller, 3 Younge & J. 212. As to the effect of fraud practiced upon the surety, see ante, § 54. 662 Wile v. Wright, 32 Iowa, 451. 66 3 State v. Brantley, 27 Ala. 44; Ferry v. Burchard, 21 Conn. 597; Shuttleworth v. Levi, 13 Bush (Ky.) 195; Aucoin v. Guillot, 10 La. Ann. 124; Fisher v. Sha truck, 17 Pick. (Mass.) 252; Crum v. Wilson, 61 Miss. 233; SWIFT v. BEERS', 3 Denio (N. Y.) 70; Thompson v. Lockwood, 15 Johns. (N. Y.) 256; Gill v. Morris, 11 Heisk. (Tenn.) 256 CREDITOR AND SURETY. Ch. 5 WAIVER OF DEFENSES. 134. A surety may waive his defenses. If a surety, with full knowledge of facts which would discharge him, pay the debt, he cannot recover the money so paid. While a surety may take advantage of certain acts of the creditor and insist upon being discharged, he is not compelled to do so. If, with full knowledge of the facts which would constitute a valid defense, he pays the debt, 66i or acknowl- edges his liability, 665 he afterwards cannot avail himself of the defense, although he acted in ignorance of the legal ef- fect of the creditor's acts. WHO CAN ENFORCE SURETY'S CONTRACT. 135. A surety cannot be held liable by any one to whom he did not intend to assume liability, as indicated by his contract. Who Can Enforce Liability on Bonds. A contract of suretyship can be enforced by those only who are parties to it, 666 or for whose benefit it was entered 614, 27 Am. Eep. 744; United States v. Tingey, 5 Pet. (U. S.) 115, 8 L. Ed. 66. See ante, I 56. 664 This is so, although a decision against the principal is reversed afterwards on appeal. Garr v. Martin, 20 N. Y. 306. 66 5 Churchill v. Bradley, 58 Vt. 403, 5 Atl. 189, 56 Am. Rep. 563. 6 66 Inhabitants of Farmington v. Hobert, 74 Me. 416; Flynn v. Insurance Co., 115 Mass. 449; Huntington v. Knox, 7 Cush. (Mass.) 374; Loeb v. Barris, 50 N. J. Law, 382, 13 Atl. 602; Henricus v. Bnglert, 137 N. Y. 488, 33 N. E. 550; Woonsocket Rubber Co. v. Banigan, 21 R. I. 146, 42 Atl. 512. A bond to save the owner of a building harmless from liens cannot be enforced by the lienholders. Stetson & Post Mill Co. v. McDonald, 5 Wash. 496, 32 Pac. 108. Nor are the sureties for a contractor liable for the debts of a sub- contractor. State ex rel. Price v. Hinsdale-Doyle Co., 117 Ind. 476, 20 N. E. 437; McCluskey v. Cromwell, 11 N. Y. 593. Or for ma- terials furnished. Electric Appliance- Co. v. United States Fidelity Co., 110 Wis. 434, 85 N. W. 648, 53 L. R. A. 609. A bond to one person cannot be enforced by that person and his partner. Barnett v. Smith, 17 111. 565. And a bond to two or more cannot be enforced § 135) WHO CAN ENFORCE SURETY'S CONTRACT. 257 into. 687 If the contract be in the form of a bond, an action thereon must be in the name of the obligee. If the bond be given by a public officer for the benefit of the public, the ac- tion will be in the name of the obligee 66S "for the use of" the person injured ; but a surety on the bond cannot bring an ac- tion thereon. 669 If, by reason of default of a deputy sheriff, the sureties of the sheriff are compelled to pay, they can re- cover from the deputy's sureties. 670 If the obligee be deceased, his personal representative can sue upon the bond; 671 but not as to defaults occurring after the obligee's death. 672 If a bond be given to the directors of a company elected an- nually, such directors can bring an action after they have ceas- ed to be directors, 673 and have ceased to have any interest; but, if the obligees in a bond become incorporated, the bond cannot be enforced by the corporation, as the corporation is a different person. 674 Who Can Enforce Payment of Promissory Notes. A surety on a negotiable promissory note payable to a particular person cannot be held liable by another person who discounts the note, instead of the payee, although the surety by fewer than all. Phillips v. Poole, 96 Ga. 515, 23 S. E. 504; Phillips v. Singer Co., 88 111. 305; Burns v. Follansbee, 20 111. App. 41; Sims v. Harris, 47 Ky. 55; Wallis v. Dilley, 7 Md. 237; Dana v. Parker (O. C.) 27 Fed. 263; Bradburne v. Botfield, 14 M. & W. 559. And see ante, § 117. 6«7 People v. Chalmers, 60 N. Y. 154; GRIFFITH v. RUNDLE, 23 Wash. 453, 63 Pac. 199, 55 L. R. A. 381. A bond conditioned to save the "president and directors of the bank" harmless will be construed to save the corporation harmless. New Orleans Nat. Bank v. Wells, 28 La. Ann. 736, 26 Am. Bep. 107; Bayley v. Insurance Co., 6 Hill (N. Y.) 476, 41 Am. Dec. 759. One who was not bound by a writ of injunction cannot recover on the injunction bond. Marengo Coun- ty v. Matkin (Ala. 1905) 42 South. 33. ees People v. Bugbee, 1 Idaho, 96; State, to Use of Oregon County, v. Thomas, 17 Mo. 503; Branch v. Elliot, 14 N. C. 86. 6 69 Mitchell v. Turner, 37 Ala. 660. «To Brinson v. Thomas, 55 N. C. 414. 67i Young v. Patterson, 165 Pa. 423, 30 Atl. 1011. 67 2 Barker v. Parker, 1 Durn. & B. 287. See ante, § 118. 678 Anderson v. Longden, 1 Wheat. (TJ. S.) 85, 4 L. Ed. 42. 674 Bensinger v. Wren, 100 Pa. 500. CirrLDs' Stjbetyshtp— 17 258 CREDITOR AND SURETY. (Ch. 5 may not be harmed. 675 A surety has the right to determine with whom he will contract. Who can Enforce Special Guaranties. If a special guaranty addressed to one person be acted up- on by another, the latter cannot hold the guarantor, 678 even though the addressee be the agent of the one who acts upon it. 677 A special guaranty implies trust and confidence in the prudence and discretion of the addressee, and it cannot be as- signed, although, after a right of action has arisen through a breach, such right of action is assignable. 678 A person will not be permitted to show that a guaranty was intended for him, but by mistake was addressed to another. 679 If a guaranty be addressed to an individual, it cannot be acted upon by two or more; 68 ° and, if addressed to two or 675 Planters' & Merchants' Bank v. Blair, 4 Ala. 613; Russell v. Ballard, 16 B. Mon. (Ky.) 201, 63 Am. Dec. 526; Manufacturers' Bank v. Cole, 39 Me. 188; Bank of Newbury v. Richards, 35 Vt. 281. «76 McCollum v. Cushing, 22 Ark. 540; Potter v. Gronbeck, 117 111. 404, 7 N. E. 586; Second Nat. Bank of Peoria v. Diefendorf, 90 111. 396; Mitchell v. Railton, 45 Mo. App. 273; EVANSVILLE NAT. BANK v. KAUFFMANN, 93 N. Y. 273, 45 Am. Rep. 204; Birckhead V. Brown, 5 Hill (N. Y.) 634; Halloway v. Blum, 60 Tex. 625; Wilson v. Childress, 2 Wilson, Civ. Cas. Ct. App. § 425; Edmondston v. Drake, 30 U. S. (5 Pet.) 624, 8 L. Ed. 251; Barker v. Parker, 1 Term R. 287. It is not necessary that a special letter of credit expressly state that it is intended for the addressee only. TAYLOR v. WET- MORE, 10 Ohio, 491. In City Nat. Bank of Poughkeepsie v. Phelps, 16 Hun, 158, it was held that a letter of credit addressed to "City Bank, Poughkeepsie, N. Y.," could be acted upon by the "City Na- tional Bank of Poughkeepsie"; the addressee being originally a state bank, subsequently changed to a national bank, with a change in name. 677 Second Nat. Bank of Peoria v. Diefendorf, 90 III. 396. In Michigan State Bank v. Peck, 28 Vt. 200, 65 Am. Dec. 234, it was held that a letter of credit addressed to "C. C. Trowbridge, Presi- dent, Detroit, Mich.," could be acted upon by the Michigan State Bank; Trowbridge being president of that bank, and not the presi- dent of any other institution. 678 EVANSVILLE NAT. BANK v. KAUFFMANN, 93 N. Y. 273, 45 Am. Rep. 204; Robbins v. Bingham, 4 Johns. (N. Y.) 476. 679 Taylor v. McClung, 2 Houst. (Del.) 24; Grant v. Naylor, 4 Cranch (U. S.) 224, 2 L. Ed. 222. 680 Sollee v. Meugy, 1 Bailey (S. C.) 620; Allison v. Rutledge, 5 Yerg. (Tenn.) 193. § 135) WHO CAN ENFORCE SURETY'S CONTRACT. 259 more, it cannot be acted upon by any number less than all. 681 If a guaranty be addressed to one person, it cannot be acted on by a firm of which he is a member ; 682 nor can a guaranty addressed to a firm be acted upon by a member of the firm. A letter addressed to a firm which is no longer in existence cannot be acted upon by a former member of the firm, 688 even though the name of that partner alone appears upon an ad- dress upon the back of the guaranty; 684 nor does it make any difference that the dissolution was occasioned by the death of a partner. 686 Where two partnerships, composed of the same members, had different names, and were in different parts of the same city, a guaranty addressed to one firm name could not be acted upon by the other. 686 Each might have had a different manner of conducting its business. When Contract May Be Enforced by Other Than the Orig- inal Parties. If a contract of suretyship show an intention that others may act upon it, the sureties remain liable. 687 Thus, where the sureties regard a partnership more as a house than as a number of individuals, they may be held after a new partner has been taken into the firm. 688 General Guaranties. A general guaranty, addressed to all persons, can be acted upon by any one. 689 A guaranty which is addressed to the «8i Ante, § 117. «82 Sollee v. Meugy, 1 Bailey (S. O.) 620. 683 Schoonover v. Osborne, 108 Iowa, 453, 79 N. W. 263; Penoyer v. Watson, 16 Johns. (N. Y.) 100. 6 84 Smith v. Montgomery, 3 Tex. 199. 68 5 Cosgrave Brewing Co. v. Starrs, 5 Ont 189. 6 86 Taylor v. McClung, 2 Houst. (Del.) 24. 687 Ketchell t. Burns, 24 Wend. (N. Y.) 456; Wadsworth v. Allen, 8 Grat (Va.) 174, 56 Am. Dec. 137. ess Barclay v. Lucas, 1 Durn. & E. 291, note, 3 Doug. 321. 689 Lemmon v. Strong, 59 Conn. 448, 22 Atl. 293, 12 L. R. A. 270, 21 Am. St. Rep. 123; Ellsworth v. Harmon, 101 111. 274; Commercial Bank v. Provident Inst., 59 Kan. 361, 53 Pac. 131, 41 L. R. A. 175, 68 Am. St. Rep. 368; Harbord v. Cooper, 43 Minn. 466, 45 N. W. . 860; State Nat. Bank v. Haylen, 14 Neb. 480, 16 N. W. 754; UNION BANK OF LOUISIANA v. COSTER, 3 N. Y. (3 Comst.) 203, 53 Am. Dec. 280, affirming 3 N. Y. Super. Ct. (1 Sandf.) 563; Birckhead v. 260 CREDITOR AND SURETY. (Ch. 5 principal himself, or to no one in particular, is a general guar- anty. 690 Guaranties of Negotiable Instruments. Where the instrument whose payment is guarantied is a negotiable one, and the guaranty is written thereon, an in- tention generally is shown to extend the benefit of the guar- anty to any subsequent holder of the instrument; 691 and where a negotiable instrument is covered by a general guar- anty, a transferee of the instrument is entitled to the benefit of the guaranty, although he is in ignorance of its existence at the time of the transfer. 692 ESTOPPEL OF SURETY— VALIDITY OF CONTRACT SE- CURED. 136. Where a contract of suretyship is entered into to secure the performance of another contract, the surety is estopped to deny that such other contract was a bind- ing obligation, unless fraud or illegality can be shown. Brown, 5 Hill (N. Y.) 634, affirmed 2 Denio (N. Y.) 375; Partridge v. Davis, 20 Vt. 499; Tidioute Sav. Bank v. Libbey, 101 Wis. 193, 77 N. W. 182, 70 Am. St. Rep. 907; Carpenter v. Longan, 16 Wall. (U. S.) 271, 21 L. Ed. 313. And see ante, § 29. e»o Lowry v. Adams, 22 Vt. 160. 69i Killian v. Ashley, 24 Ark. 511, 91 Am. Dec. 519; Hopson v. iEtna Axle Co., 50 Conn. 597; Ellsworth v. Harmon, 101 111. 274; Judson v. Gookwin, 37 111. 286; Jones v. Berryhill, 25 Iowa, 289; Commercial Bank v. Provident Inst, 59 Kan. 361, 53 Pac. 131, 41 L. R. A. 175, 68 Am. St. Rep. 368; Harbord v. Cooper, 43 Minn. 466, 45 N. W. 860; Cross v. Rowe, 22 N. H. 77; Everson v. Gere, 122 N. Y. 290, 25 N. E. 492, affirming 40 Hun (N. Y.) 248; Levy v. Cohen, 103 App. Div. 195, 92 N. Y. Strop. 1074, reversing 45 Misc. Rep. 95, 91 N. Y. Supp. 594; Bank of Ashland v. Jones, 16 Ohio St. 145; Northumberland County Bank v. Eyer, 58 Pa. 97; Reed v. Garvin, 12 Serg. & R. (Pa.) 100; Partridge v. Davis, 20 Vt. 499; Arents v. Commonwealth, 18 Grat. (Va.) 750. Contra, Bray v. Marsh, 75 Me. 452, 46 Am. Rep. 416; True v. Fuller, 38 Mass. (21 Pick.) 140; Tay- lor v. Binney, 7 Mass. 479; Tinker v. McCauley, 3 Mich. 188; Hay- den v. Weldon, 43 N. J. Law (14 Vroom) 128, 39 Am. Rep. 551; Smith v. Dickinson, 6 Humph. (Tenn.) 261, 44 Am. Dec. 306. 69 2 Tidioute Sav. Bank v. Libbey, 101 Wis. 193, 77 N. W. 182, 70 Am. St. Rep. 907. §$ 137-141) SAME — ENFORCEMENT OF EIGHTS. 261 SAME— RECITALS IN OBLIGATION. 137. A surety is estopped to deny the facts recited in his ob- ligation. SAME— ELECTION OB APPOINTMENT OF OFFICER. 138. A surety for an officer is estopped to deny the validity of his election or appointment. SAME— JURISDICTION OF COURT. 139. A surety on a bond given in a judicial proceeding is es- topped to deny the jurisdiction of the court in which the bond was given. SAME— EXISTENCE OF CORPORATION OR PARTNERSHIP. 140. A surety on a bond given to a corporation, or to a part- nership, is estopped to deny its legal existence. SAME— ENFORCEMENT OF RIGHTS. 141'. A surety may be estopped, by his words or conduct, from claiming the rights of a surety. Surety Estopped to Show Contract Defective. While, as has been shown, a surety successfully may set up fraud, duress, or illegality as a defense, when sued upon his contract, whether such fraud, duress, or illegality entered in- to the contract of suretyship, 693 or into the contract of the principal, 694 he is not allowed to show that the contract of the principal, which he has intended to secure, is invalid, be- cause defective. 695 After he has been instrumental, by his undertaking, in procuring for his principal all the advantages «»s See ante, §§ 54-56. <">* See ante, § 133. «9o Kean v. McKinsey, 2 Pa. (2 Barr) 30. 262 CREDITOR AND SURETY. (Ch. 5 of the contract, he will not be permitted to escape its disad- vantages. After a tenant has entered into possession under a lease, a surety thereon cannot escape liability by show- ing that the lease was defective. 696 Where sureties for the purchase price of land have notice of defects in the title there- to, they cannot set up such defects when sued. 697 Sureties on an appeal bond cannot attack the judgment appealed from; nor can a surety on a bond for alimony deny that the woman receiving the money was the principal's wife. 698 A surety on a guardian's bond will not be permitted to claim that the court did not order it. 689 Surety Estopped to Deny His Recitals. A surety, as a rule, cannot vary or contradict, by oral evi- dence, the recitals in a bond which he has signed, although they are false. 700 Where a bond has been given in a judicial proceeding, and the bond recites that certain steps have been taken, the surety will be estopped to deny that such steps have been taken. Thus, where a replevin bond recites that the sheriff has made seizure and levy on certain goods, the sureties cannot deny these statements, and claim that the sheriff did not have authority to take the bond. 701 Surety Estopped to Deny That Principal is Legally in Office. When sureties are sued upon the bonds of officers, they frequently claim absence of liability because such officer was not elected or appointed legally or regularly; but they are ose Otto v. Jackson, 35 111. 349; Clark v. Gordon, 121 Mass. 330. «9t Ellis v. Adderton, 88 N. C. 472. 69s Commissioners of Charities & Corrections of Kings County v. O'Kourke, 34 Hun (N. Y.) 349. «99 Sebastian v. Bryan, 21 Ark. 447. too Hortsell v. State, 45 Ark. 59; People v. Huson, 78 Cal. 154, 20 Pac. 369; May v. May, 19 Fla. 373; Vias v. Commonwealth, 7 Ky. Law Rep. 743; Price v. Kennedy, 16 La. Ann. 78; Drury v. Fay, 14 Pick. (Mass.) 326; Brockway v. Petted, 79 Mich. 620, 45 N. W. 61, 7 L. R. A. 740; Olson v. Koyem (Minn.) 77 N. W. 818; Hundley v. Filbert, 73 Mo. 34; Harrison v. Wilkin, 69 N. Y. 412; Cocks v. Bark- er, 49 N. Y. 107; Pearre v. Folb, 123 N. C. 239, 31 S. E. 475; Borden v. Houston, 2 Tex. 594; Monteith v. Commonwealth, 15 Grat. (Va.) 172; United States v. Bradley, 10 Pet. (U. S.) 365, 9 L. Ed. 448; Dris- coll v. Blake, 9 Ir. Ch. Rep. 356. foi Hundley v. Filbert, 73 Mo. 34. § 141) ESTOPPEL OF SURETY. 263 not permitted to show this. 702 Having alleged this fact solemn- ly at one time, they cannot be heard afterwards to deny it. An officer de facto is one who is in actual possession and administration of an office under some colorable or apparent authority, although his title to the same, whether by election or appointment, is in reality invalid, or at least formally questioned. 703 The sureties upon the bond of a de facto officer are liable, 704 for they are the ones who have been in- strumental in procuring for him the power to act. 705 A surety is bound, although the principal never took the oath of office; 706 and a surety will not be allowed to show that an office had been abolished before the officer was elected. 707 702 Plowman v. Henderson, 59 Ala. 559; People v. Hammond, 109 Cal. 384, 42 Pac. 36; Stephens v. Crawford, 1 Ga. (1 Kelly) 574, 44 Am. Dec. 680; People v. Slocum, 1 Idaho, 62; Green v. Ward well, 17 111. 278, 63 Am. Dec. 366; Foster v. People, 121 111. App. 165; State ex rel. Metsker v. Mills, 82 Ind. 126; Boone County v. Jones, 54 Iowa, 699, 2 N. W. 987, 7 N. W. 155, 37 Am. Rep. 229; Jones v. Gallatin County, 78 Ky. 491; State v. Powell, 40 La. Ann. 234, 4 South. 46, 8 Am. St. Rep. 522; Williamson v. Woodman, 73 Me. 163; Fridge v. State, 3 Gill & J. (Md.) 103, 20 Am. Dec. 463; Bassett v. Crafts, 129 Mass. 513; White v. Weatherbee, 126 Mass. 450; Ames v. Williams, 72 Miss. 760, 17 South. 762; State v. Horn, 94 Mo. 162, 7 S. W. 116; Horn v. Whittier, 6 N. H. 88; People v. Norton, 9 N. Y. (5 Seld.) 176; Johnston v. Smith, 25 Hun (N. Y.) 171; Reid v. Humphreys, 52 N. C. 258; Commonwealth v. Stambaugh, 164 Pa. 437, 30 Atl. 293; Foster v. Commonwealth, 35 Pa. (11 Casey) 148; State v. Anderson, 84 Tenn. (16 Lea) 321; Chapman v. Commonwealth, 25 Grat. (Va.) 721; Bruce v. United States, 17 How. (TJ. S.) 437, 15 L. Ed. 129. 703 Black's Law Diet. p. 845. 704 Town of Plymouth v. Painter, 17 Conn. 585, 44 Am. Dec. 574; City of Chicago v. Gage, 95 111. 593, 35 Am. Rep. 182; Bucknam v. Ruggles, 15 Mass. 180, 8 Am. Dec. 98; Holt County v. Scott, 53 Neb. 176, 73 N. W. 681; State v. Rhoades, 6 Nev. 352; People v. Collins, 7 Johns. (N. Y.) 549; Jones v. Scanland, 6 Humph. (Tenn.) 195, 44 Am. Dec. 300 ; Reed v. Hedges, 16 W. Va. 192. 705 inhabitants of Wendell v. Fleming, 8 Gray (Mass.) 613; Kelly v. State, 25 Ohio St. 567; Burnett v. Henderson, 21 Tex. 588. 706 Police Jury v. Haw, 2 La. 41, 22 Am. Dec. 294; Laurenson v. State, 7 Har. & J. (Md.) 339; Ramsey County Com'rs v. Brisbin, 17 Minn. 451 (Gil. 429); State, to Use of Guernsey County Com'rs, v. Findley, 10 Ohio, 51; State v. Toomer, 7 Rich. Law (S. C.) 216; Town of Lyndon v. Miller, 36 Vt. 329. "7 Seiple v. Elizabeth, 27 N. J. Law, 407. 264 CREDITOR AND SURETY. (Ch. Surety Estopped to- Deny Jurisdiction. Where a bond has been given in the course of judicial proceedings, sureties thereon cannot deny the jurisdiction of the court in which the bond was given. 70S These matters should be contested otherwise. Surety Estopped to Deny Validity of Incorporation or Part- nership. Sureties on bonds given to corporations or to partnerships are estopped to deny the legal existence of the obligees. 709 Surety Estopped to Deny Capacity in Which He Acts. Sureties are estopped, sometimes, by their words or acts, from claiming the rights which they otherwise would possess. If a person expressly agrees to be bound as a principal, he cannot assert that he is a surety, 710 although that fact be known to the creditor. 711 While the law gives certain privileges to a surety, he has the right to waive them, if he choose to do so, 712 either in his contract or afterwards. Thus, where a note reads, "We jointly and severally, all as principals, promise to pay," none of the signers can show that he was a surety only. 713 If the note had been silent as to the exact relation borne by the signers, and this was known to the holder, oral 70s Norton v. Miller, 25 Ark. 108; Fahnestock v. Gilham, 77 111. 637; Pritchett v. People, 6 111. 525; Harbaugh v. Albertson, 102 Ind. 69, 1 N. E. 298; In re McConomy's Estate, 170 Pa. 140, 32 Atl. 608; Behrens v. Rodenburg, 1 City Ct. R. (N. Y.) 93; Pannill's Adm'r v. Calloway, 78 Va. 387. 70s Fort Wayne & B. Turnpike Co. v. Deam, 10 Ind. 563; Teutonia Nat. Bank v. Wagner, 33 La. Ann. 732; Father Matthew Young Men's Total Abstinence & Benevolent Soc. v. Fitzwilliams, 84 Mo. 406, affirming 12 Mo. App. 445; White v. Coventry, 29 Barb. (N. Y.) 305; Trumbull County Mut. Fire Ins. Co. v. Horner, 17 Ohio, 407; Singer Mfg. Co. v. Bennett, 28 W. Va. 16. 710 Yates v. Donaldson, 5 Md. 389, 61 Am. Dec. 283; McMillan v. Parkell, 64 Mo. 286; Exeter Bank v. Stowell, 16 N. H. 61, 41 Am. Dec. 716; Perkins v. Goodman, 21 Barb. (N. Y.) 218; Ennis v. Crump, 6 Tex. 85; Dart v. Sherwood, 7 Wis. 523, 76 Am. Dec. 228; Sprigg v. Bank, 14 Pet. (U. S.) 201, 10 L. Ed. 419. 7ii Waterville Bank v. Redington, 52 Me. 466; President of Clare- mont Bank v. Wood, 10 Vt. 582. 712 Picot v. Signiago, 22 Mo. 587. 713 Heath v. Derry Bank, 44 N. H. 174; Derry Bank v. Baldwin, 41 N. H. 434. §§ 142-143) SURETY — HOW DISCHARGED. 265 evidence could be offered ; for that would not be contradicting the terms of the note. 71 * The same result is accomplished by the surety writing the word "principal" after his signature. 715 The right of the creditor not to be compelled to recognize the privileges of a surety is sometimes very important, and the creditor can insist upon the surety performing his contract in the capacity assumed in his Written agreement: Where a surety for some time has conducted himself as a principal, he will be estopped from afterwards claiming the rights of a surety. 716 SURETY DISCHARGED BY CREDITOR PROMISING TO LOOK TO PRINCIPAL. 142. Where the creditor, after maturity of the debt, tells the surety that he will look to the principal alone for payment, and the surety relies on such statement, the surety will be discharged. SURETY DISCHARGED BY CREDITOR'S INFORMATION THAT DEBT HAS BEEN PAID. 143. If the creditor tell the surety that the debt has been paid, and the latter, in consequence, changes his situa- tion as to the principal, the surety trill be discharged, although the creditor honestly was mistaken. Surety Looking to Principal Alone. If, after maturity of the debt, the creditor tell a surety there- for that he will look to the principal alone, and the surety is lulled into security, taking no steps to protect himself as against the principal and dismissing the matter from his mind, he will be discharged. 717 However, the mere expression of opinion by the creditor that the principal is responsible, and 714 Ante, § 104. 7isMenaugh v. Chandler, 89 Ind. 94; Sprigg v. Bank, 10 Pet (U. S.) 257, 9 L. Ed. 416. "« In re Goswiler's Estate, 3 Pen. & W. (Pa.) 200. 717 Wolf v. Madden, 82 Iowa, 114, 47 N. W. 981; Harris v. Brooks, 21 Pick. (Mass.) 195, 32 Am. Dec. 254; West v. Brison, 99 Mo. 684, 13 S. W. 95; Harmon v. Hale, 1 Wash. T. 422, 34 Am. Rep. 816. 266 CEEDITOE AND SURETY. (Ch. 5 will pay without the surety being called upon, is not suffi- cient to discharge the latter, 718 especially if there is no evi- dence that the surety relied upon such statement or has been injured thereby. Creditor Telling Surety that Debt is Paid. If the creditor notify the surety that the debt has been paid, and the surety thereupon surrenders securities, the surety is discharged, 719 although the creditor was mistaken, 720 and made his statement without fraudulent design ; but it is other- wise if the surety is not injured by the creditor's acts. 721 EXTENT OF SURETY'S LIABILITY FOB BBEACH OF BOND. 144. A surety on a bond is liable for all direct damages re- sulting from its breach, not exceeding the amount named therein, with interest and costs, unless he has enlarged or restricted his liability. SURETY FOB A DEBT LIABLE FOB INTEREST THEREON. 145. A surety for a debt is liable for interest thereon. SUBETY LIABLE FOB NECESSABY EXPENSES INCURRED BY CBEDITOB OB OBLIGEE. 146. A surety is liable for necessary expenses incurred by the creditor or obligee, if accessory to the contract. Tie Michigan State Ins. Co. v. Soule, 51 Mich. 312, 16 N. W. 662; Howe Machine Co. v. Farrington, 82 N. Y. 121; Brubaker v. Okeson, 36 Pa. 519. 'is Waters v. Creagh, 4 Stew. & P. (Ala.) 410; High v. Cox, 55 Ga. 662; Thornburgh v. Madren, 33 Iowa, 380; Brooking v. Farmers' Bank, 83 Ky. 431; Roberts v. Miles, 12 Mich. 297; Cochecho Nat. Bank v. Haskell, 51 N. H. 116, 12 Am. Rep. 68. 720 Whitaker v. Kirby, 54 Ga. 277; Baker v. Briggs, 8 Pick. (Mass.) 122, 19 Am. Dec. 311. 721 Driskell v. Mateer, 31 Mo. 325, 80 Am. Dec. 105; Barney v. Clark, 46 N. H. 514. §147) LIQUIDATED DAMAGES AND PENALTIES. 267 LIQUIDATED DAMAGES AND PENALTIES. 147. A surety is liable fox liquidated damages, but not for penalties. Surety Liable for Such Damages as Naturally Result from Breach of Bond. All damages which result from a breach of a bond can be recovered from a surety thereon, provided they result directly from the breach. 722 A surety on an appeal bond in a suit which affects real estate cannot be held for the amount of the rents and profits pending appeal ; 723 nor, in any case, can sureties be compelled to pay more than the penalty named in the bond, 724 though, in the absence of any restriction, each surety is liable to that amount. 725 It is the practice to give judgment against the sureties jointly for the full amount of the penalty, 726 and then assess the actual damages as found by the jury. If subsequent breaches of the bond are shown, additional damages are as- sessed for each breach, to be paid from the judgment al- ready entered. When the subsequent assessments of damages have reached the amount of the penalty, and have been paid by any one or more of the sureties, no surety can be held further responsible. 727 722 Cummings v. Mugge, 94 111. 186; Miles v. Davis, 36 Tex. 690. 7 23 Opp v. Ward, 125 Ind. 241, 24 N. B. 974, 21 Am. St. Rep. 220. 724 Johnson v. McMillan, 13 Colo. 423, 22 Pac. 769; Gray v. Cook, 3 Houst. (Del.) 49; Westbrook v. Moore, 59 Ga. 204; Meadows v. State, 114 Ind. 537, 17 N. E. 121; Stull v. Lee, 70 Iowa, 31, 30 N. W. 6; Fraser v. Little, 13 Mich. 195, 87 Am. Dec. 741; Snowies v. Free- man, 81 Mo. 540; Tunison v. Cramer, 5 N. J. Law (2 Southard) 498; Wood v. Fisk, 63 N. Y. 245, 20 Am. Rep. 528; Rayner v. Clark, 7 Barb. (N. Y.) 581; Anthony v. Estes, 101 N. C. 541, 8 S. E. 347: Delo v. Banks, 101 Pa. 458; Commonwealth v. Forney, 3 Watts & S. (Pa.) 353; Farrar v. United States, 5 Pet. (U. S.) 373, 8 L. Ed. 159. 725 CHESTER y. BRODERIOK, 131 N. Y. 549, 30 N. E. 507. 7 2e Turner v. Sisson, 137 Mass. 191. 727 Leggett v. Humphreys, 21 How. 66, 16 L. Ed. 50. 268 CREDITOR AND SURETY. (Ch. 5 Liability for Interest on Damages for Breach of Bond. Unless otherwise provided, a surety is liable for interest at the legal rate from the time his liability for a breach begins, 728 which is usually not the time of the breach, but from the time of demand for payment, 729 unless there is a duty to pay without demand. 730 The beginning of a suit is a sufficient demand. 731 A surety is liable for interest up to the time of judgment, although the amount allowed for interest swells the total damages above the amount of the penalty in the bond. 732 The penalty fixes the limit of his liability at the time of the breach only, and it was his duty to discharge his liability at that time. If he delays payment, the delay is to. his advan- tage, as he has had the use of the money from that time. The allowance of interest is to compensate the obligee for the loss of the use of the money during the time which has elapsed, and is independent of the penalty named in the bond. '28 Lewis v. D wight, 10 Conn. 95; McDonald v. People, 222 111. 328, 78 N. E. 609; Dorsett v. Lambeth, 6 La. Ann. 51; State v. Way- man, 2 Gill & J. (Ma.) 254; Heath v. Gay, 10 Mass. 371; Harris v. Clap, 1 Mass. 308, 2 Am. Dec. 27; Judge of Probate v. Heydock, 8 N. H. 491; Gutta Percha & Rubber Mfg. Co. v. Benedict, 37 N. Y. Super. Ct. (5 Jones & S.) 430; Looney v. Le Geirse, 2 Willson, Civ. Cas. Ct App. § 534; Perry v. Horn, 22 W. Va. 381. 729 Degnon-McLean Const. Co. v. City Trust Co., 99 App. Div. 195, 90 N. Y. Supp. 1029; Polz v. Tradesmen's Co., 201 Pa. 583, 51 Atl. 379 ; United States v. Curtis, 100 U. S. 119, 25 L. Ed. 571. 'so Frink v. Express Co., 82 Ga. 33, 8 S. E. 862, 3 L. R. A. 482; Burchfleld v. Haffey, 34 Kan. 42, 7 Pac. 548; Leighton v. Brown, 98 Mass. 515; Dodge v. Perkins, 9 Pick. (Mass.) 368; United States v. Arnold, 1 Gall. (U. S.) 348, Fed. Cas. No. 14,469. 7 3i United States v. Poulson (D. C.) 30 Fed. 231. 732 Tyson v. Sanderson, 45 Ala. 364; James v. State, 65 Ark. 415, 46 S. W. 937; Goff v. United States, 22 App. D. C. 512; Holmes v. Standard Oil Co., 183 111. 70, 55 N. E. 647, affirming Standard Oil Co. v. Holmes, 82 111. App. 476; McMullen v. Winfleld Bldg. Ass'n, 64 Kan. 298, 67 Pac. 892, 56 L. R. A. 924, 91 Am. St. Rep. 236; Carter v. Thorn, 18 B. Mon. (Ky.) 613; Mayor of Natchitoches v. Redmond, 28 La. Ann. 274; Wyman v. Robinson, 73 Me. 384, 40 Am. Rep. 360; President of Bank of Brighton v. Smith, 94 Mass. (12 Allen) 243; 90 Am. Dec. 144; Beers v. Shannon, 73 N. Y. 292; Brainard v. Jones, 18 N. Y. 35; Tazewell's Ex'r v. Saunders, 13 Grat. (Va.) 354; Spokane & I. Lumber Co. v. Loy, 21 Wash. 501, 58 Pac. 672; Whereatt v. Ellis, 103 Wis. 348, 79 N. W. 416, 74 Am. St. Rep. 865. § 147) LIQUIDATED DAMAGES AND PENALTIES. 269 Liability for Costs of Suit. As it is the duty of a surety to pay without suit, he can- not complain if he be required to pay the costs of a suit brought against him to enforce his liability, although by such payment he is compelled to pay more than the amount for which he assumed liability.' S3 Unlimited Liability. A bond may be worded to pay claims without any restriction ; and in one instrument a surety's liability may be limited by a penalty as to some matters and unlimited as to others. Thus, a surety on the bond of a contractor erecting a public building may not be liable to the obligee for defaults of the contractor for more than the penalty named therein, yet be liable to la- borers and materialmen for the full amount of their claims, if the bond has so provided, although the amount exceeds the penalty. 734 Express Restriction of Liability. While, as a rule, a surety is not liable beyond the penalty named in the bond, a surety, where there are two or more sure- ties, may restrict his liability to an amount less than the pen- alty. This is done usually by writing, after his signature, the amount for which he is willing to assume liability, and he can- not be held for more, 735 though he is liable to the obligee to the full amount designated by him, and not pro rata. 736 Liability for Interest on Debt. Where a surety has assumed liability for the payment of a certain sum of money, he is liable for interest thereon, 737 733 Mayor of City of New York v. Ryan, 9 Daly (N. Y.) 316. 73* GRIFFITH v. RUNDLE, 23 Wash. 453, 63 Pac. 199, 55 L. R. A. 381. 785 Marcy v. Praeger, 34 La. Ann. 54; Bullowa v. Orgo, 57 N. J. Eq. 428, 41 Atl. 494. 736 president of Bank of Brighton v. Smith, 94 Mass. (12 Allen) 243, 90 Am. Dec. 144; Toucey v. Schell, 15 Misc. Rep. 350, 37 N. Y. Supp. 879; ELLIS v. EMMANUEL, 1 Exch. 157. 737 state v. Wayman, 2 Gill & J. (Md.) 254. A guarantor is liable for interest on the debt from the time of the principal's default. Gammell v. Parramore, 58 Ga. 54; Gridley v. Capen, 72 111. 11; French v. Bates, 149 Mass. 73, 21 N. E. 237, 4 L. R. A. 268; Love v. 270 CREDITOR AND SURETY. (Ch. 5 unless he has made himself liable for the principal debt only. 738 If he wish to escape the payment of interest, he should pay the debt when it is due. Public officers are liable for interest collected by them for the use of the public funds in their cus- tody, and their sureties are liable for their default in paying over such interest. 739 Liability for Attorney Fees of Creditor. Sureties are not liable for attorney fees paid by the cred- itor or obligee in suits against them, 740 unless they have agreed in their contract to become so liable ; 741 but where the contract is to hold the obligee harmless, the surety is liable, not only for the amount of a judgment obtained against the former, but for his expenses incurred, including attorney fees for which he has become responsible. A guarantor of collection is liable for the costs of an ac- tion brought by the creditor against the principal to enforce payment from him ; 742 but a guarantor of payment is not liable for the costs of a suit against the principal, 7 * 3 nor for protest fees, 744 for neither protest nor suit would be necessary to fix the guarantor's liability. Liquidated Damages. If the exact amount of damage which will result from the breach of a contract is not readily ascertainable, the parties are allowed in their contract to name a fixed sum as liquidated Railroad Co., 22 Wkly. Notes Cas. (Pa.) 171; Jefferson City Gaslight Co. v. Clark, 95 U. S. 644, 24 L. Ed. 521. 'as Dorsett v. Lambeth, 6 La. Ann. 51. 7 39 City of Chicago v. Gage, 95 111. 593, 35 Am. Rep. 182; Hughes v. People, 82 111. 78; Hunt y. State, 124 Ind. 306, 24 N. E. 887; Board of Sup'rs of Richmond Co. v. Wandel, 6 Lans. (N. Y.) 33; State v. McFetridge, 84 Wis. 473, 54 N. W. 998, 20 L. R. A. 223. 740 ABBOTT v. BROWN, 131 111. 108, 22 N. E. 813, affirming 30 111. App. 376; Noll v. Smith, 68 Ind. 188. 7*1 First Nat. Bank of Ft. Dodge v. Breese, 39 Iowa, 640. 742 Tuton v. Thayer, 47 How. Prac. (N. Y.) 180; Mosher v. Hotch- kiss, 3 Abb. Dec. (N. Y.) 326. 743 Woodstock Bank v. Downer, 27 Vt. 539. Attorney fees in resisting an appeal are not recoverable as damages upon the bond. Kellogg v. Howes, 93 Cal. 586, 29 Pac. 230; Noll v. Smith, 68 Ind. 188; Deisher v. Gehre, 45 Kan. 583, 26 Pac. 3. 744 Woolley v. Van Volkenburgh, 16 Kan. 20. § 147) LIQUIDATED DAMAGES AND PENALTIES. 271 damages, which is to be paid by the party guilty of a breach. If this sum appear to be reasonable, the courts will enforce the stipulation. If, however, the sum named is greatly in ex- cess of the probable damage, or the amount of damage can be ascertained readily, the courts presume that the sum named is a penalty, limiting the amount of recovery for a breach; and this is the presumption, whether the sum named in the contract is called liquidated damages or a penalty. 745 This is the general rule of contracts, 746 and applies to contracts of surety- ship. If the sum named in the principal's contract is liquidated damages in the sense in which that expression is used prop- erly, a surety will be liable therefor. Thus, sureties for a building contract have been held liable for a fixed sum per day to be paid for each day of delay beyond the date agreed upon by the contractor for the completion of the building. 747 So, a guarantor of a note has been held liable for the liqui- dated damages provided for therein for nonpayment at ma- turity. 748 Statutory Penalties. Sureties are not liable for statutory penalties, 749 unless the statute makes them so. Thus,, where a statute provides that an officer selling exempt property shall be liable for double its value, the sureties upon his bond would be liable for the actual damage sustained only. 750 '« Fetter, Eq. p. 108. ™e Clark, Cont (2d Ed.) p. 411. »*t Mercantile Trust Co. v. Hensey, 27 App. D. C. 210; Downey v. O'Donnell, 86 111. 49; Louisville Water Co. v. Youngstown Bridge Co., 16 Ky. Law Rep. 350; Curtis v. Brewer, 17 Pick. (Mass.) 513; Louis v. Brown, 7 Or. 326; Westerman v. Means, 12 Pa. 97. 748 Gridley v. Capen, 72 111. 11. 749 Brooks v. Governor, 17 Ala. 806; State v. Baker, 47 Miss. 88; Moretz v. Ray. 75 N. C. 170; Treasurers of South Carolina v. Hilliard, S Rich. Law (S. C.) 412; McDowell v. Burwell, 4 Rand. (Va.) 317. » bo Casper v. People. 6 111. App. 28. 272 CREDITOR AND SURETY. (Ch. 5 COUNTERCLAIMS AGAINST CREDITOR. 148. A surety, when sued with the principal, can set off or recoup any demand which would be available to the principal alone. The right of set-off or recoupment did not exist at common law, but each party was required to enforce his rights in a separate action. As this resulted in the enforcement of claims by financially irresponsible parties against responsible ones, leaving the latter a theoretical, but no practical, remedy, and compelling a person to pay when he was equitably under no duty to do so, statutes were enacted to remedy this injustice. 761 The rule was originally that a joint debt could not be set off against a separate one; nor could a separate debt be set off against a joint one. Where this rule is in force, a surety, when sued jointly with his principal, would not be allowed to oppose a counterclaim by the principal alone against the cred- itor. 762 Statutes sometimes make express provision on this point. 768 As a general rule it may be said that, when the surety and principal are joined as defendants, a claim due from the creditor to the principal alone can be advanced as a set-off or by way of recoupment; 764 .though the surety, when sued alone, would have no' right to avail himself of any claims of the principal against the creditor, 766 without the 'si Stearns, Law of Suretyship, p. 178. 752 Woodruff v. State, 7 Ark. (2 Eng.) 333; Warren v. Wells, 42 Mass. (1 Mete.) SO; Dart v. Sherwood, 7 Wis. 523, 76 Am. Dec. 228. 1 53 Springfield Engine & Thresher Co. v. Park, 3 Ind. App. 173, 29 N. E. 444; Wagner v. Stocking, 22 Ohio St. 297; Edmunds* As- signee v. Harper, 31 Grat. (Va.) 637. 754 Cole v. Justice, 8 Ala. 793; Waterman v. Clark, 76 111. 428, Marcy v. Whallon, 115 111. App. 435; Bronaugh v. Neal, 1 Rob. (La.) 23; Raymond Bros. v. Green, 12 Neb. 215, 10 N. W. 709, 41 Am. Rep. 763; Andrews v. Varrell, 46 N. H. 17; Springer v. Dwyer, 50 N. Y. 19; Newell v. Salmons, 22 Barb. (N. Y.) 647; Hollister v. Davis, 54 Pa. 508; Guggenheim v. Rosenfeld, 68 Tenn. (9 Baxt.) 533; Downer v. Dana, 17 Vt. 518. 756 Beard v. Union Co., 71 Ala. 60; Thalheimer v. Crow, 13 Colo. 397, 22 Pac. 779; Kingman v. Decker, 43 111, App. 303; Graff v. Kahn, 18 111. App. (18 Bradw.) 485; Purdy v. Porstall, 45 La. Ann. 814, 13 South. 95; Lasher v. Williamson, 55 N. Y. 619; Loring v. § 149) ACTION AGAINST SURETY — BURDEN OF PROOF. 273 principal's consent; 75e for the principal has the right to elect whether he will recoup, or bring an independent action in which he can recover any excess that might be due him. 757 When the surety is sued alone, the principal can intervene for the purpose of setting off his claim. 758 Mitigation of Damages. Sureties can show matters in mitigation of damages, though the principal does not defend. 769 Thus, when sureties are sued for defalcations of their principal, they can show dis- bursements made by him, 760 or compensation which he would be entitled to withhold for his services, 761 or amounts received by the plaintiff, in reduction of the amount which the sureties are asked to pay. 762 ACTION AGAINST SURETY— BURDEN OF PROOF. 149. In an action against a snrety, it is necessary for the plaintiff to allege and prove a breach of the contract. Morrison, 15 App. Div. 498, 44 N. Y. Supp. 526; Baltimore & O. R. Co. v. Bitner, 15 W. Va. 455, 36 Am. Rep. 820. Contra, see Mc- Alester v. Landers, 70 Cal. 79, 11 Pac. 505; Green v. Conrad, 114 Mo. 651, 21 S. W. 839; Jarratt v. Martin, 70 N. C. 459. In equity a surety, sued alone, may be set off a claim of the princi- pal, because, as soon as the obligation is absolute, a surety has the right to call upon the principal to exonerate him. BECHERVAISB v. LEWIS (1872) L. R. 7 C. P. 372; Murphy v. Glass, L. R. 2 P. C. 408. 7 56 Scholze v. Steiner, 100 Ala. 148, 14 South. 552; Wieland v. Oberne, 20 111. App. (20 Bradw.) 118; Reeves v. Chambers, 67 Iowa, 81, 24 N. W. 602; MAHURIN v. PEARSON, 8 N. H. 539; Balsley v. Hoffman, 13 Pa. (1 Harris) 603; Snyder v. Frankenfield, 4 Pa. Dist R. 767. In Pennsylvania a debt due a co-surety can be set off •with the consent of such co-surety. Hibert r. Lang, 165 Pa. 439, 30 Atl. 1004. 7 5t GILLESPIE v. TORRANCE, 25 N. Y. 306, 82 Am. Dec. 355. 758 Becker v. Northway, 44 Minn. 61, 46 N. W. 210, 20 Am. St. Rep. 543. 7 59 Allen v. Smitherman, 41 N. C. 341. 760 Temple St. Cable Ry. v. Hellman, 103 Cal. 634, 37 Pac. 530; Davenport v. Olmstead, 43 Conn. 07; United States v. Corwin, 1 Bond. (U. S.) 149, Fed. Cas. No. 14,870. 7 6i Baltimore & O. R. Co. v. Jameson, 13 W. Va. 833, 31 Am. Rep. 775; Brandon v. Brandon, 3 De G. & J. 524. 762 O'Brien v. McCann, 58 N. Y. 373. Childs' Suretyship— 18 274 CKBDITOE AND SURETY. (Ch. 5 SAME— EVIDENCE OF DEFAULT. 150. Admissions and entries made by tie principal are prima facie, but not conclusive, evidence of bis defaults. It is the intention here not to take up the allegations and evidence necessary to recover judgment against a surety for a breach of his contract, as that is not within the scope of this work; but a few of the more common matters which are put forward to prove a default of an officer, when it is sought to hold his surety liable therefor, will be considered. The rules of pleading require that the plaintiff, seeking to enforce the liability of the defendant for a breach of his con- tract, must allege the same; and the rules of evidence place the burden of proof upon the plaintiff likewise. 763 The loss of a bond does not prevent recovery from a surety thereon. 764 Admissions of Principal. While the declarations of the principal are admissible against him, he should not be permitted, after violating his oath of office and failing to keep faith with his surety, to furnish con- clusive evidence against the latter. 765 The surety is bound for the actual misconduct of his principal, and not for what the principal may say he has done or not done ; and, while the admissions of the principal may be prima facie evidence of a breach of the bond, 766 the surety is not precluded from showing the facts. 767 Tea Ilsley v. Jones, 12 Gray (Mass.) 260; Craig v. Phipps, 23 Miss. 240. 7 64 UNDERWOOD v. STANEY, 1 Cases in Chan. 77. 765 Lewis v. Lee County, 73 Ala. 148; Jenness v. Black Hawk, 2 Colo. 578; Bocard v. State, 79 Ind. 270; Cassity v. Robinson, 8 B. Mon. (Ky.) 279; Chelmsford Co. v. Demarest, 7 Gray (Mass.) 1; City of St. Louis v. Foster, 24 Mo. 141; Kellum v. Clark, 97 N. T. 390; Hatch v. Elkins, 65 N. Y. 489; Stetson v. Bank, 2 Ohio St. 167; White v. German Nat. Bank, 9 Heisk. (Tenn.) 475; Lacoste v. Bexar County, 28 Tex. 420; Stearns, Law of Suretyship, p. 338. 766 Treasurers of State v. Bates, 2 Bailey (S. C.) 362; Simonton v. Boucher, 2 Wash. C. C. 473, Fed. Cas. No. 12,877. T67 Stearns, Law of Suretyship, p. 338. § 150) ACTION AGAINST SURETY. 275 Entries by Principal. The same rule applies to entries made by the officer in the records kept by him; 768 but entries which are not made by the principal himself are inadmissible without proof as to who made them, or that the one who made them was not within the jurisdiction of the court, or that they were made in the usual course of business at the time of the transactions re- corded. 788 Judgment against Principal. As to whether a judgment against the principal is admissible as evidence against a surety, the decisions are very conflict- ing; some holding that such evidence is inadmissible, 770 some that the judgment is prima facie evidence only, 771 and others that such judgment is conclusive. 772 When the principal is sued, the surety, for his own protec- tion, has the right to defend ; 77S - and, if several be sued joint- ly, judgment must be rendered against all or none. 77 * 768 Nolley v. Callaway County, 11 Mo. 447; Mann v. Yazoo City, 31 Miss. 574; State v. Rhoades, 6 Nev. 352. 7 69 State Bank of Pike v. Brown, 165 N. Y. 216, 59 N. H. 1, 53 L. E. A. 513. 770 Arrington v . porter, 47 Ala.' 714; Pico v. Webster, 14 Cal. 202, 73 Am. Dec. 647; Governor v. Shelby, 2 Blackf. (Ind.) 26; Mc- CONNELL v. POOR, 113 Iowa, 133, 84 N. W. 968, 52 L. R. A. 312; De Greiff v. Wilson, 30 N. J. Eq. (3 Stew.) 435; People v. Russell, 25 Hun (N. Y.) 524; Douglass v. Howland, 24 Wend. (N. Y.) 35; Mc- Kellar v. Bowell, 11 N. C. 34; Giltinan v. Strong, 64 Pa. (14 P. F. Smith) 242, reversing Strong v. Giltinan, 7 Phila. (Pa.) 176; State ex rel. Coleman v. Cason, 11 S. C. 392; Fletcher v. Jackson, 23 Vt. 581, 56 Am. Dec. 98; Ex parte Young, 17 Ch. D. 668. 771 State v. Martin, 20 Ark. 629; Weaver v. Thornton, 63 Ga. 655; Graves v. Bulkley, 25 Kan. 249, 37 Am. Rep. 249; Mullen v. Scott, 9 La. Ann. 173; Parr v. State, 71 Md. 220, 17 Atl. 1020; City of Lowell v. Parker, 10 Mete. (Mass.) 309, 43 Am. Dec. 436; Robinson v. Lane, 22 Miss. (14 Smedes & M.) 161; LaFayette Mut Bldg. Ass'n v. Kleinhoffer, 40 Mo. App. 388; State, to Use of Story, v. Jennings, 14 Ohio St. 73; Atkins v. Baily, 9 Yerg. (Tenn.) Ill; Munford v. Overseers, 2 Rand. (Va.) 313; Ihrig v. Scott, 13 Wash. 559, 43 Pac. 633; Stephens v. Shafer, 48 Wis. 54, 3 N. W. 835, 33 Am. Rep. 793; Drummond v. Prestman, 25 U. S. (12 Wheat.) 515, 6 L. Ed. 712. 772 See Stearns, Law of Suretyship, p. 340; 40 Cent. Dig. col. 2110. 773 Jewett v. Crane, 35 Barb. (N. Y.) 208. 774KINGSLAND v. KOEPPE, 137 111. 344, 28 N. E. 48, 13 L. R. A. 649. 276 CREDITOR AND SURETY. (Cll. 5 Where the obligation of the surety is to hold the obligee- harmless, a judgment obtained against the latter as to mat- ters covered in the bond would be evidence of a default, wheth- er any steps had been taken to enforce the collection of the judgment or not. 7 ™ Summary Remedies. Statutes sometimes allow summary remedies to be taken against sureties on bonds, where such bonds are made a part of the record, and separate actions need not be instituted against them. Thus, an appellate court, on affirming the judg- ment appealed from, may enter judgment against the sureties upon the appeal bond. 778 Such statutes are constitutional. 777 SURETY'S RIGHT OF SUBROGATION. 151. Upon full satisfaction by a surety of the amount due the creditor or obligee, the surety is entitled to all means held at any time by the creditor or obligee for enforcing payment of that particular claim from the principal or from a co-surety, whether the surety paid in ignorance of the existence of such means or not. CREDITOR'S RIGHT OF SUBROGATION. 152. The creditor is entitled to the benefit of any security given by the principal to the surety for the indemnity of the, latter as to that particular debt, provided the surety has not surrendered the same in good faith after the debt is due; but the creditor is not entitled to any security given to the surety by a stranger. "5 Bridgeport Fire & Marine Ins. Co. v. Wilson, 34 N. Y. 275. See note 439, supra. 77 6 Callahan v. Saleski, 29 Ark. 216; Hawley v. Gray Co., 12T Cal. 560, 60 Pac. 437; Shannon v. Dodge, 18 Colo. 164, 32 Pac. 61; Libby v. Husby, 28 Minn. 40, 8 N. W. 903; Kiernan v. Cameron, 66 Miss. 442, 6 South. 206; Lowe v. Kiley, 57 Neb. 252, 77 N. W. 758; Holbrook v. Investment Co., 32 Or. 104, 51 Pac. 451; Hickcock v. Bell, 46 Tex. 610. "7 Ladd v. Parnell, 57 Cal. 232; Weimer v. Bunbury, 30 Mich. 201; People ex rel. Loh v. Wayne Circuit, 26 Mich. 186; Bank of Mississippi v. Duncan, 52 Miss. 740. § 152) creditor's right of subrogation. 277 Subrogation an Equitable Right One very important right which a surety has against the creditor or obligee is that of subrogation; that is, the right to be substituted in the latter's place upon payment of the amount due, and to enforce any securities, benefits, and ad- vantages held by him. 778 The right is of equitable origin, 770 and is applied under equitable principles. While it finds wide application to contracts of suretyship, it is not confined to such cases. Subrogation as Affected by Agreement. The right is not affected by a surety's acceptance of secu- rity for the debt, 780 and is independent of any agreement; 781 but, like most rights given by operation of law, it may be en- larged or restricted, or entirely taken away, 782 by an express 7 78Fawcetts v. Kimmey, 33 Ala. 261; Talbot v. Wilkins, 31 Ark. 411; Stamford Bank v. Benedict, 15 Conn. 437; Billings v. Sprague, 49 111. 509; Foss v. Chicago, 34 111. 488; Josselyn v. Edwards, 57 Ind. 212; Storms v. Storms, 3 Bush (Ky.) 77; Norton v. Soule, 2 Greenl. (Me.) 341; Crisfield v. State, 55 Md. 192; Torp v. Gulseth, 37 Minn. 135, 33 N. W. 550; Dozier v. Lewis, 27 Miss. 679; Grady v. O'Reilly, 116 Mo. 346, 22 S. W. 798; Guthrie v. Ray, 36 Neb. 612, 54 N. W. 971; ^Btna Ins. Co. v. Thompson, 68 N. H..20, 40 Atl. 396, 73 Am. St. Rep. 552; Price v. Trusdell, 28 N. J. Eq. 200; State Bank of Lock Haven v. Smith, 155 N.' Y. 185, 49 N. E. 680; Mathews v. Alkin, 1 N. Y. 595; Butler v. Birkey, 13 Ohio St. 514; Klopp v. Le- banon Bank, 46 Pa. 88; Gossin v. Brown, 11 Pa. 527; Muller v. Wadlington, 5 S. C. 342; Henry v. Compton, 2 Head (Tenn.) 549; James v. Jacques, 26 Tex. 320, 82 Am. Dec. 613; National Bank of Royalton v. Cushing, 53 Vt. 321; Yonge v. Beynell, 9 Hare, 809. Fetter, Equity, p. 254. The surety does not acquire, by subroga- tion, any superior rights than the creditor had. Thus, if the cred- itor is not a holder for value without notice of defenses to a note taken as collateral security, the surety does not become a holder without notice. Rockefeller v. Larick (Neb.) 110 N. W. 1022. T79 MATHEWS v. AIKIN, 1 N. Y. 595. 'so Crawford v. Richeson, 101 111. 351; Wesley Church v. Moore, 10 Pa. 273; West v. Rutland Bank, 19 Vt. 403. 781 EMMERT v. THOMPSON, 49 Minn. 386, 52 N. W. 31, 32 Am. St. Rep. 566; PHILBRICK v. SHAW, 61 N. H. 356; BRINSON v. THOMAS, 55 N. C. 414; Dempsey v. Bush, 18 Ohio St. 376; COT- TRELL'S APPEAL, 23 Pa. 294. 782 Whitman v. Gaddie, 7 B. Mon. (Ky.) 591; Dillon v. Scofield, 11 Neb. 419, 9 N. W. 554; Hartwell v. Smith, 15 Ohio St. 200; 278 CREDITOR AND SURETY. (Ch. 5 agreement. Conventional subrogation — that is, where the par- ties have entered into a contract with reference to the evi- dence of indebtedness or the means of enforcing or executing it 78S — may give a surety advantages which he could not secure under the rights given him at law. 784 As the right of subrogation, independent of contract, is applied under equitable principles, a surety is not allowed to speculate to the disadvantage of his principal, but can enforce any securities which he obtains to the extent of reimburse- ment only. If he has settled the claim for less than its face value, he can enforce securities to the extent of the amount actually paid, and no more; 785 but there is nothing to prevent the surety dealing with the creditor in respect to the securities the same as a third person might, and if the creditor, upon payment of less than the amount due, is willing to assign the securities to the surety, the latter, like any other assignee of the claim, could enforce it for its full face value. On the other hand, a surety, upon paying the debt, may consent to a restoration of the securities to the debtor, and relinquish the benefits which the law has bestowed upon him. 786 Indebtedness Must be Satisfied in Full. It is essential that the surety fully satisfy the claim of the creditor or obligee before there will be any right of subro- gation. 787 So long as any part, however small, of the indebt- Yeager's Appeal, 19 Wkly. Notes Cas. (Pa.) 151; Cowan v. Duncan, Meigs (Tenn.) 470; Harnsberger v. Yancey, 33 Grat (Va.) 527. 7 83 steams, Law of Suretyship, p. 506. 784 Morrow v. United States Mortg. Co., 96 Ind. 21. tss See post, § 160. 7se Tyus v. De Jarnette, 26 Ala. 280; COOPER v. JENKINS, 32 Beav. 337. 787 Schoonover v. Allen, 40 Ark. 132; Stamford Bank v. Benedict, 15 Conn. 437; Bridges v. Nicholson, 20 Ga. 90; Darst v. Bates, 51 111. 439; Covey v. Neff, 63 Ind. 391; Rice v. Downing, 12 B. Mon. (Ky.) 44; Grieff v. Steamboat, 12 Da. Ann. 8; Neptune Ins. Co. v. Dorsey, 3 Md. Ch. 334; Swan v. Patterson, 7 Md. 164; Wilcox v. Fairhaven Bank, 7 Allen (Mass.) 270; Gannett y. Blodgett, 39 N. H. 150; Freehold Nat Banking Co. v. Brick, 37 N. J. Law, 307; Hoover v. Epler, 52 Pa. 522 ; Coates' Appeal, 7 Watts & S. (Pa.) 99 ; Church, Petitioner, 16 R. I. 231, 14 Atl. 874; Gilliam v. Esselman, 5 Sneed (Tenn.) 86; Barton v. Brent, 87 Va. 385, 13 S. E. 29. § 152) creditor's right of subrogation. 279 edness remains unpaid, 788 the creditor has a right to the pos- session of any security he may have to enforce payment, 789 and cannot be compelled to part with it. He is not obliged to assume any risk or inconvenience, 790 and subrogation will not be allowed, except in a clear case, where it will not work any injustice to him. 791 He may consent to subrogation be- fore the debt is paid, 702 and the principal, or his other cred- itors, will not be heard to complain. 783 The rule that the entire indebtedness must be paid before there can be any subrogation applies to several debts of the principal, or to a debt payable in installments, with the surety liable for one debt or for one installment only. All the debts 794 or installments 795 must be paid before the creditor can be compelled to yield any portion of his security, though the surety is liable for one only. However, the surety will have a right to subrogation as soon as the entire debt has been paid, although he has paid but a part of it; the principal having paid the balance. 796 788 Conwell v. McGowan, 53 III. 363; Opp v. Ward, 125 Ind. 241, 24 N. E. 974, 21 Am. St. Rep. 220; Bartholomew v. Bank, 57 Kan. 594, 47 Pac. 519; Willingham v. Trust Co., 56 S. W. 706, 22 Ky. Law Rep. 158; Brough's Estate, 71 Pa. 460. 789 MUSGRAVE v. DICKSON, 172 Pa. 629, 33 Atl. 705, 51 Am. St. Rep. 765. 7»o McConnell v. Beattie, 34 Ark. 113; Commonwealth of Virginia v. Chesapeake Co., 32 Md. 501;- Magee v. Leggett, 48 Miss. 139; Ames v. Huse, 55 Mo. App. 422; Receivers of New Jersey Midland Ry. Co. v. Wortendyke, 27 N. J. Eq. 658; Kyner v. Kyner, 6 Watts (Pa.) 221. 79i Welch v. Parran, 2 Gill (Md.) 320; Parker v. Mercer, 7 Miss. 320, 38 Am. Dec. 438; Lloyd v. Galbraith, 32 Pa. 103; Harlan v. Sweeny, 1 Lea (Tenn.) 682. 7»2 Fisher v. Columbia Ass'n, 59 Mo. App. 430; Receivers of New Jersey Midland Ry. Co. v. Wortendyke, 27 N. J. Eq. 658. 793 Motley v. Harris, 1 Lea (Tenn.) 577. 794 Wilcox v. Fairhaven Bank, 7 Allen (Mass.) 270; Sipe v. Taylor (Va. 1906) 55 S. E. 542; Ex parte MARSHAL, 1 Atk. 129. Of course, it is otherwise if there is a provision to that effect. Allison v. Sutherlin, 50 Mo. 274. 795 Carithers v. Stuart, 87 Ind. 424; Massie v. Mann, 17 Iowa, 131; GRUBBS v. WTSORS, 32 Grat. (Va.) 127. 796 Magee v. Leggett, 48 Miss. 139; Hess' Estate, 69 Pa. 272; Neal v. Buffington, 42 W. Va. 327, 26 S. E. 172. 4 280 CKEDITOK AND SURETY. (Ch. 5 If the creditor has security for a particular debt, he cannot deprive a surety for that debt of the right to the benefit of such security after the debt has been paid, because the princi- pal still owes him for advances afterwards made. 797 Subrogation Not Allowed to Volunteers. The payment must be made by the surety, or by his author- ity, or by some one having an interest in the matter, to give the right of subrogation against the principal. A stranger cannot obtain this right by making a voluntary payment, even though he thought he was a surety; 798 but a general agent, who, to protect his own interest, is compelled to pay the de- fault of an agent, may be subrogated to the rights of the cred- itor. 799 The right of subrogation extends to one who is ac- tually a guarantor, though he became such without the request of the principal. 800 Co-Sureties Subrogated Proportionately. If two or more sureties have paid the debt, they will be subrogated in proportion to the amount paid. 801 Sureties in the Broad Sense Untitled to Subrogation. This right of subrogation is not confined to sureties in the narrow sense, but will be exercised in favor of guarantors, 802 indorsers, 808 accommodation parties, 80 * or joint debtors; 805 7 »7 FORBES v. JACKSON (1882) 19 Ch. D. 615. See Hard- castle v. Commercial Bank, 1 Har. 374. 7»8 Dawson v. Lee, 83 Ky. 49; Fink v. Mahaffy, 8 Watts (Pa.) 384. 799 Hough v. Insurance Co., 57 111. 318, 11 Am. Rep. 18; Young v. Morgan, 89 111. 199. soo Davis v. Schlemmer, 150 Ind. 472, 50 N. E. 373; Bishop v. Rowe, 71 Me. 263; MATHEWS v. AIKIN, 1 N. Y. 595. sol Bank of Pennsylvania v. Potius, 10 Watts (Pa.) 148. 802 Voltz v. Bank, 158 111. 532, 42 N. E. 69, 30 L. R. A. 155; Hamil- ton v. Johnston, 82 111. 39. 80s Lyon v. Boiling, 9 Ala. 463, 44 Am. Dec. 444; Schoonover v. Allen, 40 Ark. 132; Dooley v. Lackey, 55 111. App. 30; Hoffman v. Butler, 105 Ind. 371, 4 N. E. 681. Des Moines Sav. Bank v. Colfax 804 Bank of Toronto v. Hunter, 4 Bosw. (N. Y.) 646. sosMcCready v. Van Antwerp, 24 Hun (N. Y.) 322; "Vincent v. Logsdon, 17 Or. 284, 20 Pac. 429; Greenlaw v. Pettit, 87 Tenn. 467, 11 S. W. 357; Wheatley's Heirs v. Calhoun, 12 Leigh (Va.) 264, 37 Am. Dec. 654; The Hattie M. Spraker (D. C.) 29 Fed. 457. § 152) creditor's right op subrogation. 281 and of those who become sureties involuntarily, such as the grantor of mortgaged property to one who has assumed the mortgage debt, 806 or a retiring partner whose liability for the firm's indebtedness has been assumed by the continuing partners.; 807 and of real sureties, 808 such as pledgors, 809 or grantees, under warranty deeds, of property subject to liens. 810 Supplemental Surety Entitled to Subrogation. A supplemental surety has the right of subrogation; 811 the surety occupying, as to him, the relation of principal. His right extends, not only to such means as the creditor has of ' enforcing payment from the principal, 812 but also to such means as the creditor has for enforcing payment from the surety. 813 Co., 79 Iowa, 497, 44 N. W. 718; Seixas v. Gonsoulin, 40 La. Ann. 351, 4 South. 453; Beckwith v. Webber, 78 Mich. 390, 44 N. W. 330; Bridgman v. Johnson, 44 Mich. 491, 7 N. W. 83; Yates v. Mead, 68 Miss. 787, 10 South. 75; Eno v. Crooke, 10 N. Y. 60; Corey v. White, 3 Barb. (N. Y.) 12; Baily v. Brownfield, 20 Pa. 41; Old Dominion Bank v. Allen, 76 Va. 200; DUNCAN v. NORTH AND SOUTH WALES BANK (1880) 6 App. Cas. 1; Woodward v. Pell, L. It. 4 Q. B. 55. 806 Orrick v. Durham, 79 Mo. 174; Ayers v. Dixon, 78 N. Y. 318; Johnson v. Zink, 51 N. Y. 333; Lowry v. McKinney, 68 Pa. 294. so? Chandler v. Higgins, 109 111. 602; Conwell v. McCowan, 81 III. 285; Laylin v. Knox, 41 Mich. 40, 1 N. W. 913; Swan v. Smith; 57 Miss. 548; Merrill v. Green, 55 N. Y. 270; Scott's Appeal, 88 Pa. 173; Prow Estate, 73 Pa. 459; JEtna Ins. Co. v. Wires, 28 Vt. 93. 80s Jefferson v. Edrington, 53 Ark. 545, 14 S. W. 903. so9 Sheidle v. Weishlee, 16 Pa. 134. sio Beall v. Walker, 26 W. Va. 741. sii Rittenhouse v. Levering, 6 Watts & S. (Pa.) 190; LEAKE v. FERGUSON, 2 Grat. (Va.) 419; GODDARD v. WHYTE, 2 Giffard, 449; PARSONS v. BRIDDOCK, 2 Vernon, 608. See, also, PHIL- BRICK v. SHAW, 61 N. H. 356. 8i2 Where an indorser has paid the debt by giving a note with surety, and the principal has reimbursed the indorser, the supple- mental surety cannot have subrogation to the note against the origi- nal principal. NEW YORK STATE BANK v. FLETCHER, 5 Wend. (N. Y.) 85. sis T\iinlnri Ty Foc tor, 7 Ala. 734; Monson v. Drakeley, 40 Conn. 552, 16 Am. Rep. 74; Bradenburg v. Flynn, 12 B. Mon. (Ky.) 397; Dillon v. Scofield, 11 Neb. 419, 9 N. W. 554; BRINSON v. THOMAS, 55 N. C. 414; Hartwell i. Smith, 15 Ohio St. 200; Pott v. Nathans, 1 Watts & S. (Pa.) 155, 37 Am. Dec. 456. If tjie creditor himself has ex- 282 CREDITOR AND SURETY. (Ch. 5 As has been explained, 814 the most common cases involving the rights of a supplemental surety arise upon successive ap- peals; the primary liability resting upon the sureties on the last appeal bond. Upon payment by any surety, or set of sure- ties, other than the last set, the surety or sureties so. paying will be subrogated to the right of the creditor to enforce the liability of sureties on any appeal bond given after such surety or sureties became liable. 815 An indorser occupies the position of a supplemental surety as to prior parties, who are sure- ties. 818 The principal is not entitled to subrogation against his sureties. Subrogation Against Co-Surety. Where one of two or more co-sureties pays the debt, he will be subrogated to such means of enforcing the debt against the other sureties as the creditor possessed. 817 Thus, where one surety on a promissory note pays it, he will be entitled to enforce it against another surety for the latter's share of the debt. hausted all of the rights upon an appeal bond given to him, there cannot be any subrogation thereto. CHESTER v. BRODERICK, 131 N. Y. 549, 30 N. E. 507. si* See note 638, supra. siBFriberg v. Donovan, 23 111. App. 58; Kellar v. Williams, 10 Bush (Ky.) 216; Hinckley v. Kreitz, 58 N. Y. 583; Briggs v. Hinton, 14 Lea (Tenn.) 233. 8i « See Stearns, Law of Suretyship, p. 484. a" Dowdy v. Blake, 50 Ark. 205, 6 S. W. 897, 7 Am. St. Rep. 88; Sumner v. Rhodes, 14 Conn. 135; Simpson v. Gardiner, 97 111. 237; Schoenewald v. Dieden, 8 111. App. 389; Hall v. Hall, 34 Ind. 314: Koboliska v. SweMa, 107 Iowa, 124, 77 N. W. 576; Smith v. Latimer, 15 B. Mon. (Ky.) 75; Whitehead's Succession, 3 La. Ann. 396; Smith v. Rumsey, 33 Mich. 183; Furnold v. Bank, 44 Mo. 336; Vincent v. Logsdon, 17 Or. 284, 20 Pac. 429; Greenlaw v. Pettit, 87 Tenn. 467, 11 S. W. 357; Stebbins v. Willard, 53 Vt. 665; PACE v. PACE, 95 Va. 792, 30 S. E. 361, 44 L. R. A. 459; German American Sav. Bank v. Fritz, 68 Wis. 390, 32 N. W. 123; Pratt v. Law, 9 Cranch (U. S.) 456, 3 L. Ed. 791; Campbell v. Pratt, 5 Wheat. (TJ. S.) 429, 5 L. Ed. 126. In England, under the mercantile law amendment act of 1856 (St. 19 & 20 Vict c. 94, § 5), a co-guarantor is entitled to stand in the place of the judgment creditor to enforce contribu- tion, although there is no assignment of the judgment. In re M'MYN, 33 Ch. D. 575 ; In re Cochran's Estate, 5 Eq. 209. § 152) creditor's eight of subrogation. 283 Subrogation to Property of Principal in Creditor's Possession. The right of subrogation extends, as a general rule, to any property in the possession of the creditor, such as a pledge, which the latter would be justified in retaining on account of the indebtedness. No Subrogation to Property of Principal Which Creditor Holds for Other Purposes. However, it does not follow that, because the creditor has funds or property of the principal in his possession, the surety would be entitled to subrogation thereto, if such funds or property were not connected in some way with the indebted- ness. Thus, where the creditor is a bank having funds of the principal on deposit, the bank is justified in honoring the checks of the principal, and a surety is not entitled to subro- gation to such deposit. 818 The bank had received the de- posit under a contract entirely independent from any other contract with the principal. 818 Subrogation to Rights of Action. The right of subrogation extends, not only to property, but to any means of enforcing payment, 820 or of reaching property, sis Voss v. German Bank, 83 111. 599, 25 Am. Eep. 415; National Bank of Newburgh v. Smith, 66 N. Y. 271, 23 Am. Rep. 48; Grissom v. Commercial Bank, 87 Tenn. 350, 10 S. W. 774, 3 L. R. A. 273, 10 Am. St. Rep. 669. 819 See note 499, supra. Sao Saint v. Ledyard, 14 Ala. 244; Skiff v. Cross, 21 Iowa, 459; Merryman v. State, 5 Har. & J. (Md.) 423; Sweet v. Jeffries, 48 Mo. 279; Boughton v. Bank, 2 Barb. Ch. (N. Y.) 458; BITTICK v. WIL- KINS, 7 Heisk. (Tenn.) 307; Ex parte RUSHFORTH, 10 Vesey, 409; Ex parte TURNER, 3 Vesey, 243. A surety is entitled to the means which the state has to enforce payment of the debt from the prin- cipal. Dlas v. Bouchaud, 10 Paige (N. Y.) 445; Id., 3 Edw. Ch. (N. Y.) 485; United States v. Hunter, 5 Mason (U. S.) 62, Fed. Cas. No. 15,426 ; REGINA v. ROBINSON, Hurl. & N. 275, note (a) ; Regina v. Salter, 1 Hurl. & N. 274. The surety may be subrogated to a bond. QUEEN v. DOUGHTY, Wight. 2, note (b). Or to a promissory note (Sublett's Adm'r v. McKinney, 19 Tex. 438), although the note is marked "paid" (WRIGHT v. GROVER, 82 Pa. 80). Where the surety's liability arises on a different instrument from that of the principal, there is no question as to his right to an assignment of that instrument to him. Dodd v. Wilson, 4 Del. Ch. 399; Livingston v. Anderson, 80 Ga. 175, 5 S. E. 48; Allen v. Powell, 108 111. 584; 284 CREDITOR AND SURETY. (Ch. 5 such as a mortgage 821 given by the principal. Sureties for the purchase price of land sold to the principal, the legal title re- maining in the grantor, are entitled to subrogation to the lat- ter's rights against the principal ; 822 and a surety may be subrogated to the dividends from a bankrupt principal's es- tate. 823 Sureties have the right to pursue a fund misapplied by their principal, if they can find it and identify it. 824 So a surety can be subrogated to the right of the creditor to set aside a fraudulent conveyance made by the principal, 826 and a surety for a lessee will be subrogated to the landlord's right to distrain. 826 Subrogation to Liens. The right of subrogation extends to all liens, as that word is used in a broad sense, 827 even as against those who have ac- Davis v. Schlemmer, 150 Ind. 472, 50 N. B. 373; Tardy v. Allen, 3 La. Ann. 66; Ferguson's Adm'r v. Carson, 86 Mo. 673; Townsend v. Whitney, 75 N. Y. 425; Fifth Nat. Bank of Cincinnati v. Woolsey, 31 App. Div. 61, 52 N. Y. Supp. 827; Keokuk Falls Imp. Co. v. Kings- land Co., 5 Okl. 32, 47 Pac. 489; Blkinton v. Newman, 20 Pa. 281; Hill v. Manser, 11 Grat. (Va.) 522; Murray v. Meade, 5 Wash. 693, 32 Pac. 780; Brown v. Decatur, 4 Cranch, C. C. (U. S.) 477, Fed. Cas. No. 2,001; In re Lord Churchill, 39 Ch. D. 174. 82i Fawcetts v. Kimmey, 33 Ala. 261; City Nat. Bank of Ottawa v. Dudgeon, 65 111. 11; Jacques v. Fackney, 64 111. 87; McLean v. Towle, 3 Sandf. Ch. (N. Y.) 117; Gossin v. Brown, 11 Pa. 527; Mil- ler v. Pendleton, 4 Hen. & M. (Va.) 436; DREW v. LOCKBTT, 32 Beavan, 499. 822 Beattie v. Dickinson, 39 Ark. 205; Ballew v. Eoler, 124 Ind. 557, 24 N. E. 976, 9 L. K. A. 481; Highland v. Anderson, 17 S. W. 866, 13 Ky. Law Rep. 710; Myres v. Yaple, 60 Mich. 339, 27 N. W. 536; Torp v. Gulseth, 37 Minn. 135, 33 N. W. 550; FULKERSON v. BROWNLEE, 69 Mo. 371; Stenhouse v. Davis, 82 N. C. 432; Deitzler v. Mishler, 37 Pa. 82; Galliher v. Galliher, 10 Lea (Tenn.) 23. 82 3 Nat. Bankr. Act July 1, 1898, c. 541, § 57i, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443]; Ex parte ATKINSON, Cooke, Bankr. Laws (8th Ed.) 232; Ex parte Johnson, 3 De G., M. & G. 218. 82i BLAKE v. TRADERS' NAT. BANK, 145 Mass. 13, 12 N. E. 414; PIERCE v. HOLZER, 65 Mich. 263, 32 N. W. 431; Neely v. Rood, 54 Mich. 134, 19 N. W. 920, 52 Am. Rep. 802; Clark v. First Nat. Bank, 57 Mo. App. 277. 825 Martin v. Walker, 12 Hun (N. Y.) 46; Tatum v. Tatum, 36 N. C. 113. 828 Hall v. Hoxsey, 84 111. 616. 827 Huftmond v. Bence, 128 Ind. 131, 27 N. B. 347. A surety is § 152) creditor's right of subrogation. 2S5 quired interests thereafter, 828 but not to such intangible rights as are sometimes called liens, which are discharged as soon as payment is made, 829 such as the right given by statute to an unpaid seller of supplies to a vessel. 83 ° Subrogation to Judgments. If the creditor has instituted suit before payment by the surety, the latter is entitled to be substituted to the place of the creditor; and, if judgment has been obtained, the surety can be subrogated to the judgment, 831 whether the judgment entitled to the benefit of the lien of a judgment against himself, the principal, and his co-sureties. Bragg v. Patterson, 85 Ala. 233, 4 South. 716; Hardcastle v. Commercial Bank, 1 Har. 3T4; Chandler v. Higgins, 109 111. 602; Searing v. Berry, 58 Iowa, 20, 11 N. W. 708; Smith v. Rumsey, 33 Mich. 183; Benne v. Schnecko, 100 Mo. 250, 13 S. W. 82; Boltz's Estate, 133 Pa. 77, 19 Atl. 303; German American Sav. Bank v. Fritz, 68 Wis. 390, 32 N. W. 123. To ven- dor's lien for purchase money. Lang v. Constance, 46 S. W. 693, 20 Ky. Law Rep. 502; UZZELL v. MACK, 4 Humph. (Tenn.) 319, 40 Am. Dec. 648. To the lien of a corporation on the shares of its stockholders. Young v. Vough, 23 N. J. Eq. 325; Klopp v. Lebanon Bank, 46 Pa. 88; Petersburg Sav. & Ins Co. v. Lumsden, 75 Va. 327. To statutory liens. Cummings v. Macy, 110 Ala. 479, 20 South. 307; Hook v. Richeson, 115 111. 431, 5 N. E. 98; Richeson v. Craw- ford, 94 111. 165; McCoy v. Wood, 70 N. C. 125. 82 8 Goodyear y. Watson, 14 Barb. (N. T.) 481; Dempsey v. Bush, 18 Ohio St. 376; Fleming v. Beaver, 2 Rawle (Pa.) 128, 19 Am. Dec. 629; Garvin v. Garvin, 27 S. C. 472, 4 S. E. 148; Buchanan v. Clark, 10 Grat. (Va.) 164. 620 McNeill's Adm'r v. McNeill, 36 Ala. 109, 76 Am. Dec. 320; UZZELL v. MACK, 4 Humph. (Tenn.) 319, 40 Am. Dec. G48. Where a surety on a note given for the purchase price of land buys the land at an execution sale under a judgment obtained on the note, he cannot be subrogated to the vendor's lien, as that has been ex- tinguished by the sale, and he takes the land subject to the junior liens. Hall v. Jones, 21 Md. 439. Sao Hays v. Columbus, 23 Mo. 232. 83i Lurcmkin v." Mills, 4 Ga. 343; Norton v. Soule, 2 Greenl. (Me.) 341; Goodyear v. Watson, 14 Barb. (N. Y.) 481; Hill v. King, 48 Ohio St. 75, 26 N. E. 988; PARSONS v. BRIDDOCK. 2 Vern. 608. The fact that the judgment has been paid does not extinguish it for the purpose of subrogation, as it has to be paid before the surety would be entitled to subrogation. COTTRELL'S APPEAL, 23 Pa. 294. 286 CREDITOR AND SURETY. (Ch. 5 be against the principal alone, or against the principal and surety. 832 Subrogation to Privileges. Subrogation extends, not only to the rights which the cred- itor has to enforce his claim, but to any privileges which he has in connection therewith. Thus, a surety is entitled to a stipulation in a note for attorney fees. 838 If the creditor is en- titled to a priority in the payment of a debt due, a surety pay- ing the debt is entitled to such priority. 83 * Assignment to Surety. A surety has the right, when paying the creditor, to take an assignment of the evidence of indebtedness, and can enforce it against his principal. 835 Advantage of Subrogation over Principal's Implied Contract to Indemnify Surety. As will be shown in a subsequent chapter, a surety, upon payment of the debt, has a right of action for indemnity from his principal. 836 As this right arises under an implied con- tract, it would be barred, in most states, sooner than the right of action which the creditor had on the written instrument or judgment. For this reason, where the surety is subrogated to the rights of the creditor on a written contract, or has taken an assignment thereof, he will possess rights superior to those 882 Townsend v. Whitney, 15 Hun (N. T.) 93 ; Jennings v. Hare, 104 Pa. 489. 83 3 Carpenter v. Minter, 72 Tex. 370. 12 S. W. 180. 834 Muldoon v. Crawford, 14 Bush (Ky.) 125 ; Robertson v. Trigg's Adm'r, 32 Grat. (Va.) 76; LIDDERDALE v. ROBINSON, 12 Wheat. (U. S.) 594, 6 L. Ed. 740 ; Manisty v. Churchill, 39 Ch. D. 174. 83 5 a surety can have a judgment assigned to him. Bragg v. Pat- terson, 85 Ala. 233, 4 South. 716 ; Harris v. Frank, 29 Kan. 200 ; Mor- ris v. Evans, 2 B. Mon. (Ky.) 84, 36 Am. Dec. 591 ;■ Creager v. Bren- gle, 5 Har. & J. (Md.) 234, 9 Am. Dec. 516 ; Benne v. Schnecko, 100 Mo. 250, 13 S. W. 82 ; Townsend v. Whitney, 75 N. X. 425 ; Goodyear v. Watson, 14 Barb. (N. T.) 481; COTTRELL'S APPEAL, 23 Pa. 294; Sublett's Adm'r v. McKinney, 19 Tex. 438. Contra, Sherwood v. Collier, 14 N. C. 380, 24 Am. Dec. 264 ; DOWBIGGEN v. BOURNE, 2 Tounge & C. 462. A surety can have an attachment assigned to him. Brewer v. Franklin Mills, 42 N. H. 292. See post, § 158. 88 6 See post, § 154. § 152) oreditoe's eight of subbogation. 287 which he had on his implied contract for indemnity. 837 An- other advantage given under the right of subrogation is that it enables him to take precedence over subsequent incum- brances. 838 If a tract of land of the principal be subject to two mortgages, a surety for the debt secured by the first mortgage, upon payment of the debt, can foreclose the first mortgage, and cut out the second one ; whereas, his right of indemnity against the principal alone might be practically worthless. 839 What Rights Are Not Subject to Subrogation. Subrogation will not be allowed, however, where it would be contrary to public policy, 840 or would confer no benefit to the surety beyond his gratification of a spite. 841 Thus, sure- ties on a bail bond will not be entitled to the peculiar remedies of the state against a criminal; 842 nor would sureties for a railway company, who have failed to pay for land taken by the latter, be subrogated to the right of the landowner to eject the company. 8 * 3 Subrogation Extends to Securities Received at Any Time, and Continues After Their Release by Creditor. As the right of subrogation exists independently of con- tract, it extends not only to securities which existed at the time the contract of .suretyship was entered into, 844 but to all re- 837 Giddens v. Williamson, 65 Ala. 439; Hull v. Myers, 90 Ga. 674, 16 S. B. 653 ; Sparks v. Childers, 2 Ind. T. 187, 47 S. W. 316 ; Par- tee v. Mathews, 53 Miss. 140 ; SMITH v. SWAIN, 7 Rich. Eq. (S. C.) 112; Sublett's Adm'r v. McKinney, 19 Tex. 438. In CROMER v. CROMER, 29 Grat. (Va.) 280, it was held that sureties for a guardian were not entitled to the benefit of the exception of a fiduciary debt from the operation of the bankruptcy law, as it ceased to be a fidu- ciary debt when paid by the sureties to the ward. ass COTTRELL'S APPEAL, 23 Pa. 294; HOTHAM v. STONE, Turn. & R. 226, note (c). 839 Drew v. Lockett, 32 Beav. 499. Bio United States v. Ryder, 110 U. S. 729, 4 Sup. Ct. 196, 28 L. Ed. 308. 84i In re Hewitt, 25 N. J. Eq. 210. 8*2 United States v. Ryder, 110 U. S. 729, 4 Sup. Ct. 196, 28 L. Ed. 308. 8*3 Joliet & C. R. Co. v. Healy, 94 111. 416. 844 Green v. Milbank, 3 Abb. N. C. (N. Y.) 138. 288 CREDITOR AND SURETY. (Ch. 5 ceived thereafter by the creditor, 845 whether the surety had knowledge of such security, 846 or of his rights thereto. 847 If the security has been released, the surety's rights are not affected, 848 unless the rights of purchasers for value have in- tervened. 848 If any security has been relinquished by the creditor before the surety has paid the debt, he would be re- leased to the extent of the value thereof. 850 Procedure to Enforce Right of Subrogation. To enforce the right of subrogation, a bill for that purpose is filed in a chancery court, making the creditor, the principal, and co-sureties, 851 if any, parties defendant; and it is not requisite that the surety shall have taken any previous action against the principal. 852 Right Lost by Waiver or Delay. Like other rights, that of subrogation may be waived, or lost by laches. If the surety delays until his right to indemnity is barred by the statute of limitations, subrogation will be de- nied him; 853 or the right may be lost in less time, if third persons, without knowledge of the suretyship, acquire liens in the property. 854 845 Havens v. Willis, 100 N. T. 482, 3 N. E. 313; Third Nat. Bank of Malone v. Shields, 55 Hun, 274, 8 N. T. Supp. 298; Seanland v. Settle, Meigs (Tenn.) 169; Mitchell v. De Witt, 25 Tex. Supp. 180, 78 Am. Dec. 561 ; Brandon v. Brandon, 3 De G. & J. 524. ate Smith v. McLeod, 38 N. C. 390; Rice's Appeal, 79 Pa. 168; Kramer's Appeal, 37 Pa. 71 ; Hevener v. Berry, 17 W. Va. 474 ; Dun- can v. Fox, 6 App. Cas. 1. 847 Dempsey v. Bush, 18 Ohio St. 376. 848 Atwood v. Vincent, 17 Conn. 575 ; Stevens v. Cooper, 1 Johns. Ch. (N. Y.) 430, 7 Am. Dec. 499; Lichtenthaler v. Thompson, 13 Serg. & R. (Pa.) 157, 15 Am. Dec. 581 ; Drew v. Lockett, 32 Beav. 499. 849 City Nat. Bank of Ottawa v. Dudgeon, 65 111. 11. sso Ante, § 127. S5i BRINSON v. THOMAS, 55 N. C. 414. S52irick v. Black, 17 N. J. Eq. 189; BITTICK v. WILKINS, 7 Heisk. (Tenn.) 307. 8 53 Simpson v. McPhail, 17 111. App. (17 Bradw.) 499; Kreider v. Isenbice, 123 Ind. 10, 23 N. E. 786 ; Guild v. McDaniels, 43 Kan. 548, 23 Pac. 607 ; Joyce v. Joyce, 1 Bush (Ky.) 474 ; Rittenhouse v. Lev- ering, 6 Watts & S. (Pa.) 190; Bank of Pennsylvania v. Potius, 10 Watts (Pa.) 148 ; Pickering v. Leiberman (D. C.) 41 Fed. 376. 854 Smith v. Harbin, 124 Ind. 434, 24 N. E. 1051; Noble v. Turner, § 152) creditor's right of subrogation. 289 A surety's unsuccessful opposition to his principal's assign- ment for the benefit of creditors will not affect his right of subrogation to the rights of the creditor under the assign- ment. 865 Creditor's Right of Subrogation. We have been discussing, thus far, the right of a surety to be substituted to the rights of the creditor. The creditor, after his claim is due, has a right of subrogation to securities held by the surety, 868 provided they have been given to the surety by the principal. Such securities are regarded as a trust for better security, which a court of equity will enforce, 867 and 69 Md. 519, 16 Atl. 124; Searight's Estate, 163 Pa. 222, 29 Atl. 973; DOUGLASS' APPEAL, 48 Pa. 223. sis 6 Motley v. Harris, 1 Lea (Tenn.) 577. 856 Smith v. Gillam, 80 Ala. 296; Van Orden v. Durham, 35 Cal. 136 ; Lewis v. De Forest, 20 Conn. 427 ; Darst v. Bates, 51 111. 439 ; Griffis v. First Nat. Bank (Ind. App. 1906) 79 N. E. 230 ; Rankin v. Wilsey, 17 Iowa, 463; Importers' & Traders' Bank v. McGhees, 88 Ga. 702, 16 S. E. 27; Seibert v. True, 8 Kan. 52; Moore v. Moberly, 46 Ky. (7 B. Mon.) 299 ; Steward v. Welch, 84 Me. 308, 24 Atl. 860 ; Baltimore & O. R. Co. v. Trimble, 51 Md. 114 ; Franklin County Nat. Bank v. Greenfield Bank, 138 Mass. 515; Rice v. Dewey, 13 Gray (Miss.) 47 ; Union Nat. Bank v. Rich, 106 Mich. 319, 64 N. W. 339 ; Butler v. Ladue, 12 Mich. 173; Tolle v. Boeckeler, 12 Mo. App. 54; Longfellow v. Barnard, 58 Neb. 612, 79 N. W. 255, 76 Am. St. Rep. 117; Barton v. Croydon, 63 N. H. 417; Demott v. Stockton, 32 N. J. Eq. 124; Merchants' & Manufacturers' Nat. Bank of Middletown v. Cummings, 149 N. Y. 360, 44 N. E. 173, affirming 79 Hun, 397, 29 N. Y. Supp. 782; National Bank of Newburgh v. Bigler, 83 N. Y. 51 ; Sherrod v. Dixon, 120 N. C. 60, 26 S. E. 770 ; Green v. Dodge, 6 Ohio (6 Ham.) 80, 25 Am. Dec. 736; Appeal of Mifflin County Nat. Bank, 98 Pa. 150; Cornwell's Appeal, 7 Watts & S. (Pa.) 305; Thompson v. Taylor, 12 R. I. 109; Walker v. Oglesby, 85 Tenn. 321, 3 S. W. 504; First Nat. Bank of Bellville v. Wheeler, 12 Tex. Civ. App. 489, 33 S. W. 1093 ; Morrill v. Morrill, 53 Vt. 74, 38 Am. Rep. 659 ; Bank of Virginia v. Boisseau, 12 Leigh (Va.) 387 ; Branch v. Railroad Co., 2 Woods, 385, Fed. Cas. No. 1,808. Contra, In re WALKER, [1892] 1 Ch. 621 ; ROYAL BANK v. COMMERCIAL BANK, L. R. 7 App. Cas. 366. If a guarantor takes security from the principal, it inures to the benefit of the creditor. Barton v. Martin, 54 Mo. App. 134. So as to securities taken by an indorser. Updegraft v. Edwards, 45 Iowa, 513 ; Boyd v. Parker, 43 Md. 183 ; Potter v. Stevens, 40 Mo. 229 ; Harmony Nat Bank's Appeal, 101 Pa. 428 ; Kelley v. Whitney, 45 Wis. 110, 30 Am. Rep. 697. «57Daniel v. Hunt, 77 Ala. 567; Stearns v. Bates, 46 Conn, 306; Childs' Suretyship— 19 290 CEEDITOE AND SURETY. (Ch. 5 appropriate the property directly to the payment of the debt. 868 Thus, the creditor is entitled to the benefit of a judgment con- fessed by the principal in favor of the surety. 859 No Subrogation to Security Given for Other Purposes. It is essential that the security be given for the identical indebtedness due ; and the creditor cannot obtain any greater rights than those possessed by the surety. 860 While, ordinarily, the creditor is not required to obtain a judgment before seek- ing subrogation, 861 he cannot enforce a mortgage given to a surety to protect the latter in event only of a judgment be- ing obtained against the latter ; 862 nor can he enforce any se- curity which has been given on a contingency, unless such con- tingency has arisen. 863 Effect of Release of Securities by Surety. The surety has no right to release any securities which the principal has given to him, if the latter be insolvent; 86 * and, Chambers v. Prewitt, 172 111. 615, 50 N. E. 145 ; Plaut v. Storey, 131 Ind. 46, 30 N. E. 886; In re Fickett, 72 Me. 266; Owens v. Miller, 29 Md. 144; Aldrich v. Blake, 134 Mass. 584; Thornton v. Exchange Bank, 71 Mo. 221; Richards v. Xoder, 10 Neb. 429, 6 N. W. 629; Price v. Trusdell, 28 N. J. Eq. 200; VAIL v. FOSTER, 4 N. Y. (4 Comst.) 312 ; Bank of Auburn v. Throop, 18 Johns. (N. Y.) 505 ; Long v. Miller, 93 N. O. 227 ; Rice's Appeal, 79 Pa. 168 ; Paris v. Hulett, 26 Vt. 308 ; Roberts v. Colvin, 3 Grat (Va.) 358. 858 Constant v. Matteson, 22 111. 456. A surety must account to the creditor for the proceeds of a note given to him. State ex rel. Bobb v. Bergfeld, 108 Mo. App. 630, 84 S. W. 177. 8B» Crosby v. Crafts, 5 Hun (N. Y.) 327. 860 SUMNER v. BACHELDEE, 30 Me. 35. A discharge of the surety in any mode deprives the creditor of all claim to security given by the principal to the surety. Russell v. La Roque, 13 Ala. 149; Van Orden v. Durham, 35 Cal. 136; Constant v. Matteson, 22 111, 546; Rankin v. Wilsey, 17 Iowa, 463; Tilford v. James, 7 B. Mon. (Ky.) 336; City of Albany v. Andrews, 29 App. Div. 20, 52 N. Y. Supp. 1129; Sherrod v. Dixon, 120 N. C. 60, 26 S. E. 770; Schmelz v. Rix, 95 Va. 509, 28 S. E. 890. s«i Importers' & Traders' Bank v. McGhees, 88 Ga. 702, 16 S. E. 27; Ohio Life Ins. & Trust Co. v. Reeder, 18 Ohio, 35. 8 62 Bush v. Stamps, 26 Miss. 463. sea Pool v. Doster, 59 Miss. 258. 86* Dyer v. Jacoway, 76 Ark. 171, 88 S. W. 901; JONES v. QUIN- NIPIACK BANK, 29 Conn. 25. § 152) creditor's eight of subrogation. 291 if he does, the creditor's lien is not lost, 865 unless strangers, for value and without notice, acquire interests in such property. No Subrogation to Security by Stranger. The right of the creditor to subrogation is confined to se- curity given to the surety by the principal. 866 Where it is given by a third person, or by a co-surety, 867 it is evident that a trust cannot attach, 868 as would be the case with the prin- cipal's own property; and, while the principal, in giving his own property to the surety, might be considered as pledging it for his debt, the act of a stranger cannot be considered in that light. Thus, where the wife of the principal, wishing to protect a surety against a possible loss arising through the husband, gives the surety her own property as security, such security cannot be reached by the creditor. 869 Right of Subrogation Not Affected by Statute of Limitations or by Statute of Frauds. The creditor will have the right of subrogation, although, on account of the statute of limitations, 870 or of the statute of frauds, 871 he could not have recovered from the surety. By seeking subrogation, the creditor does not seek to hold the surety personally, but to have him declared a trustee of the property of the principal in his possession. However, the creditor, by his acts, may waive his rights to subrogation. 872 866 McCracken v. German Ins. Co., 43 Md. 471; Eastman v. Foster, 8 Mete. (Mass - .) 19. sea Black v. Kaiser, 91 Ky. 422, 16 S. W. 89; O'Neill v. State Sav. Bank (Mont. 1906) 87 Pac. 970; Leggett v. McClelland, 39 Ohio St. 624. 867 Seward v. Huntington, 94 N. T. 104; Id., 26 Hun, 217; HAMP- TON V. PHIPPS, 108 TJ. S. 260, 2 Sup. Ct. 622, 27 L. Ed. 719. sea Macklin v. Northern Bank, 83 Ky. 314. 86 9 Taylor v. Farmers' Bank, 87 Ky. 398, 9 S. W. 240. 870 Eastman v. Foster, 8 Mete. (Mass.) 19; Long v. Miller, 93 N. C. 227. 87i Jack v. Morrison, 48 Pa. 113. In Helm's Adm'r v. Young, 9 B. Mon. (Ky.) 394, subrogation was allowed, although the surety had been discharged by an extension of time given to the principal. 872 Franklin County Nat. Bank v. First Bank, 138 Mass. 515; New Bedford Inst, for Savings v. Fairhaven Bank, 9 Allen (Mass.) 175; Ex parte MOBBIS, 2 Lowell (U. S.) 424, Fed. Cas. No. 9,823. 292 SUBETT AND PRINCIPAL. (Ch. 6 CHAPTER VI. RIGHTS AND LIABILITIES OF THE SURETY AND OF THE PRINCIPAL AS TO EACH OTHER. 153-155. Surety's Right to Indemnity. 156-158. Proceedings to Enforce Indemnity. 159. Principal's Defenses against Surety. 160. Amount Recoverable by Surety. 161. Surety's Application of Security. PRINCIPAL'S LIABILITY TO INDEMNIFY SUBETT— BE- GINNING OF. 153. As soon as a person has become liable as a surety, the law implies a promise by the principal to indemnify him for any payments which he is compelled to make on account of such relation; but such implied prom- ise may be superseded by an express one. PRINCIPAL'S LIABILITY TO INDEMNIFY SURETY— WHEN FIXED. 154. As soon as the debt is due, the surety can pay the same, or a part of it, without any express request to do so, and, upon such payment, is entitled immediately to receive from the principal the amount so paid, or, if there be more than one principal, from any one or all of them; and this right is not affected by the fact that the surety holds security for his protection. WHAT CONSTITUTES PAYMENT. 155. Anything which is taken by the creditor in extinguish- ment of the debt will be regarded as payment. Implied Promise of Indemnity. Having considered the rights and liabilities of the creditor and surety with respect tp each other, it is the intention now to treat of the rights and liabilities as between the surety and principal. The chief right which a surety possesses §§ 153-155) surety's eight to indemnity. 293 against his principal is that of indemnity. At the very instant the relation of principal and surety arises, 1 the law implies a promise 2 by the principal to the surety to reimburse him for all direct damage 3 which the latter may sustain by reason of such relation ; 4 the consideration for such promise being the liability incurred by the surety. 6 Originally the surety's remedy was in equity only, but in modern times very many equitable principles have been adopted by common law courts. 8 This right of action arises out of the contract between the surety and the creditor, but is not based upon it ; 7 and for this reason the principal is liable to the surety, whether or not i Ramsay's Estate v. Whitbeck, 183 111. 550, 56 N. E. 322; Choteau v. Jones, 11 111. 300, 50 Am. Dec. 460; APPLETON v. BASCOM, 3 Mete. (Mass.) 169; Rice v. Soutligate, 16 Gray (Mass.) 142; In re Stout (D. C.) 109 Fed. 794, 6 Am. Bankr. Rep. 505. 2 Martin v. Ellerbe's Adm'r, 70 Ala. 326; Foster v. Balch (Conn. 1907) 65 Atl. 574; Dickerson v. Turner, 15 Ind. 4; Wilson v. Craw- ford, 47 Iowa, 469; Konitzky v. Meyer, 49 N. Y. 571; Holmes y. Weed, 19 Barb. (N. Y.) 128; DECKER v. POPE, 1 Selw. N. P. (13th Ed.) 91. s See post, § 160. *Dubberly v. Black, 38 Ala. 193; Ridgeway v. Potter, 114 111. 457, 3 N. E. 91, 55 Am. Rep. 875; Roberts v. Trust Co., 83 111. App. 463; Hazelton v. "Valentine, 113 Mass. 472; Conn v. Coburn, 7 N. H. 368, 26 Am. Dec. 746; Cornell v. Prescott, 2 Barb. (N. Y.) 16; Fritch v. Bank, 191 Pa. 283, 43 Atl. 394; LAYER v. NELSON, 1 Vera. 456; FORD v. STOBRIDGE, Nelson, Ch. 24; 40 Cent. Dig. col. 2242. A guarantor is entitled to indemnity. Cotton v. Alexander, 32 Kan. 339, 4 Pac. 259; Kimmel v. Lowe, 28 Minn. 265, 9 N. W. 764. So is an accommodation indorser. Burton v. Slaughter, 26 Grat. (Va.) 914. And bail. Simpson v. Robert, 35 Ga. 180; Adair v. Campbell, 4 Bibb (Ky.) 13; Reynolds v. Harral, 2 Strob. (S. C.) 87. But in United States v. Ryder, 110 TJ. S. 729, 4 Sup. Ct. 196, 28 L. Ed. 308, it is said to be contrary to public policy to allow bail in criminal cases to recover indemnity from the principal. See post, § 159 (e). A surety is entitled to prove against a bankrupt principal's estate. Ex parte TTJRQUAND [1876] 3 Ch. D. 445; Ex parte WOOD, cited in 10 Ves. 415. s APPLETON v. BASCOM, 3 Mete. (Mass.) 169; Haseltine v. Guild, 11 N. H. 390; SCOT v. STEPHENSON, 1 Lev. 71, 1 Sid. 89, 1 Keb. 346. e APPLETON v. BASCOM, 3 Mete. (Mass.) 169. 7 Crosby v. Wyatt, 23 Me. 156; Peaslee v. Breed, 10 N. H. 489, 34 Am. Dec. 178; Marshall v. Hudson, 9 Yerg. (Tenn.) 57; Faires v. Cockerell, 88 Tex. 428, 31 S. W. 190, 639, 28 L. R. A. 528. 294 SURETY AND PRINCIPAL. (Ch. 6 the principal executed the contract with the creditor. 8 It is the principal's duty to keep the surety from being called upon to pay ; * and for this reason, if the principal should buy the property of the surety at a sale on execution against the latter on account of the debt, the purchase money is considered paid to the surety, and the principal is treated as holding the purchased property in trust for the surety. 10 Express Agreement as to Indemnity. Although the law implies a promise by the principal to the surety, this will be done only in the absence of an express contract to this effect. 11 It is competent for the principal, by express agreement with the surety, to enlarge, restrict, 12 or entirely take away the right of indemnity ; but an express agreement will not be shown by the fact that the surety has received security. The presumption in such a case is that the security is in addition to the right of indemnity given by law, and an agreement that his remedy against the principal must be confined to it must be shown ; 13 and any restriction of the rights given : to the surety by law will be strictly con- strued. 14 Effect of Payment by Surety. The right of a surety to indemnity having arisen when he entered into the relation, payment by him merely fixes the amount of damages which he can recover from the principal under the implied agreement already in existence. 15 a Trustees v. Sheik, 119 111. 579, 8 N. E. 189. « Ritenour v. Mathews, 42 Ind. 7. 10 Madgett v. Fleenor, 90 Ind. 517; Greer v. Wintersmith, 85 Ky. 516, 4 S. W. 232, 7 Am. St. Rep. 613; Van Home v. Everson, 13 Barb. (N. Y.) 526; Perry v. Yarbrough, 3 Jones, Eq. (N. C.) 66. ii If a surety takes a bond of indemnity, the implied promise is excluded. Roosevelt v. Mark, 6 Johns. Ch. (N. Y.) 266; Duncan v. Keiffer, 3 Bin. (Pa.) 126; Toussaint v. Martinnant, 2 Dura. & E. 100. Though it is otherwise if the bond be given by a stranger. Wesley Church v. Moore, 10 Pa. 273. 12 Hill v. Wright, 23 Ark. 530. is Cornwall v. Gould, 4 Pick. (Mass.) 444. That the right of a co-surety to contribution is not affected by the fact that he holds security, see post, c. VII, note 40. 1* Thomas v. Liebke, 81 Mo. 675, affirming 9 Mo. App. 424. « Miller v. Stout, 5 Del. Ch. 262; Covey v. Neff, 63 Ind. 391; Teberg §§ 153-155) surett's eight to indemnity. 295 Right of Surety before Payment. The rule that the implied contract arises on the day the surety assumes responsibility, and not when he pays the debt, becomes important as to matters which occur between those two dates. As the liability of the principal to the surety arises at the time the latter enters into the relation, it follows that the surety is a creditor of the principal from that time, 18 and as a creditor possesses certain rights, which otherwise he would not have. Being a creditor, there would be a consideration for a note, 17 a mortgage, 18 or a conveyance 19 given by the prin- cipal to the surety to secure the latter, which the principal could not revoke afterwards, 20 and which other creditors of the principal could not attack successfully, 21 although the surety has not paid anything on account of his liability. Likewise, the principal can confess judgment in favor of his surety ; 22 and fraudulent conveyances made by the principal may be set aside by the surety, 23 although made before payment by the surety. The right of the principal to exemptions, such as the v. Swenson, 32 Kan. 224, 4 Pac. 83; Williams v. Banks, 11 Md. 242; Pennington v. Seal, 49 Miss. 525; Thomas v. Liebke, 81 Mo. 675. ie Sargent t. Salmond, 27 Me. 539. "Haseltine v. Guild, 11 N. H. 390. is Pennington v. Woodall, 17 Ala. 685; Grimes v. Sherman, 25 Neb. 843, 41 N. W. 814; Lane v. Sleeper, 18 N. H. 209; Uhler v. Semple, 20 N. J. Eq. 288; Kramer v. Farmers' Bank, 15 Ohio, 253; Gilbert v. Vail, 60 Vt. 266, 14 Atl. 542. i»Phipps v. Mansfield, 62 Ga. 209. 20 Mandigo v. Mandigo, 26 Mich. 349. aiWelsch v. Werschem, 92 111. 115; Kendall v. Baltis, 26 Mo. App. 411; Butler v. Birkey, 13 Ohio St. 514. zaTunnell v. Jefferson, 5 Har. (Del.) 206; Miller v. Howry, 3 Pen. & W. (Pa.) 374, 24 Am. Dec. 320; Pringle v. Sizer, 2 Rich. (S. C.) 59. 23 Bragg v. Patterson, 85 Ala. 233, 4 South. 716; Anderson v. Walton, 35 Ga. 202; Hatfield v. Merod, 82 111. 113; Choteau v. Jones, 11 111. 300, 50 Am. Dec. 460; Sargent v. Salmond, 27 Me. 539; Wil- liams v. Banks, 11 Md. 198; Loughridge v. Bowland, 52 Miss. 546: Findlay's Bx'rs v. Bank, 2 McLean (U. S.) 44, Fed. Oas. No. 4,791. Contra, Williams v. Tipton, 5 Humph. (Tenn.) 66, 42 Am. Dec. 420. In a proceeding by the surety to set aside a fraudulent conveyance made by his principal, the holder of the legal title to the land is a necessary party. Kimball v. Greig, 47 Ala. 230. Regarding right of surety to set aside a fraudulent conveyance by a co-surety, see post, c. VI, note 36. 296 SUEETT AND PRINCIPAL. (Ch. 6 right of homestead, are determined by the law in force when the surety became his creditor; that is, at the time the surety entered into the relation. 24 Equitable Counterclaim by Surety. \ For the reason that the principal is considered the debtor of the surety from the time the relation is entered into, an in- solvent principal will not be allowed to recover a debt due from the surety to him 25 without indemnifying the latter in some way ; or the proceedings may be stayed until a reasonable time has elapsed to enable the exact liability to be determined. 26 Were the insolvent principal allowed to recover his claim from the surety, the surety would be without practical remedy when called upon to pay the debt to the creditor. 27 An assignee of the principal fares no better than the principal himself. 28 This right to an equitable counterclaim extends to funds of an insolvent principal in the hands of the surety, which the latter can retain, 29 and his possession will be constructive no- tice to every one of his rights therein. While a surety, before payment, cannot set off his contin- gent liability against his principal, 30 he can set off, after payment, whatever he has paid; 31 but, if there are co-sure- 24 Keel v. Larkin, 72 Ala. 493. 2 5Tuscumbia Co. v. Rhodes, 8 Ala. 206; Merwin v. Austin, 58 Conn. 22, 18 Atl. 1029, 7 L. R. A. 84; Scott v. Timberlake, 83 N. C. 382; Barnes v. Barnes (Va.) 56 g. E. 172. 2 6 Sims v. Wallace, 6 B. Mon. (Ky.) 410; RICHARDSON v. MER- RITT, 74 Minn. 354, 77 N. W. 234, 407, 968; Scott v. Timberlake, 83 N. C. 382; Beaver v. Beaver, 23 Pa. 167; Ross v. McKinny, 2 Rawle (Pa.) 227; Feazlq v. Dillard, 5 Leigh (Va.) 30; Mattingly v. Sutton, 19 W. Va. 19. " Abbey v. Van Campen, Freem. Ch. (Miss.) 273. 28 Williams v. Helme, 16 N. C. 151, 18 Am. Dec. 580. 2 8 Battle v. Hart, 17 N. C. 31; McKnight v. Bradley, 10 Rich. Eq. (S. C.) 557. If a surety, who has paid his principal's debt, becomes administrator of the principal's estate, the estate being solvent, he may apply funds of the estate to the payment of the debt. Bates v. Vary, 40 Ala. 421. But a surety for a firm cannot apply firm funds to the satisfaction of an individual debt of one of its members, for whom, also, he is a surety. Downing v. Linville, 3 Bush (Ky.) 472. so Kinsey v. Ring, 83 Wis. 536, 53 N. W. 842. »i Merwin v. Austin, 58 Conn. 22, 18 Atl. 1029, 7 L. R. A. 84; MOR- §§ 153-155) surety's right to indemnity. 297 ties, his right of set-off against an insolvent principal extends to the amount of his share only, to be ascertained by appor- tioning the entire amount paid among the solvent sureties. 82 True Relation Can Be Shown Orally. As the right of a surety to indemnity is based upon an im- plied contract arising out of the relation itself, and not on the instrument creating the relation, it is not necessary, for the assertion of the right, that the relation appear on the in- strument; but the exact relation can be shown by oral testi- mony, 33 and this can be done even in contradiction of the relation stated in the instrument. 34 The instrument shows the contract of the creditor with the principal and surety merely, and is not the contract between the principal and the surety. As has been shown, the principal and surety may change their relation by subsequent dealings ; 85 and, as it is not the duty of the surety to indemnify the principal, 36 the one ap- pearing to be the principal can show that he is the surety, 37 or that one appearing to be a surety is jointly liable with him. 38 Surety Can Pay or Perform Without Request. The surety, having undertaken to pay the creditor, or that the principal will pay or perform, not only has the right to GAN v. WQRDBLL, 178 Mass. 350, 59 N. E. 1037, 55 L. R. A. 33; Brittain v. Quiet, 54 N. C. 328, 02 Am. Dec. 202; In re Baily's Estate, 156 Pa. 634, 27 Atl. 560, 22 L. R. A. 444; Barney v. Grover, 28 Vt. 391. 32 COSGROVE v. McKASY, 65 Minn. 426, 68 N. W. 76; Wayland v. Tucker, 4 Grat. (Va.) 267, 50 Am. Dec. 76. 3 3 Dickey's Representatives v. Rogers (La.) 7 Mart. (N. S.) 588; Peters v. Barnhill, 1 Hill (S. C.) 234. 34 Apgar's Adm'rs v. Hiler, 24 N. J. Law, 812. 35 Ante, § 68. 3 6 Benjamin v. Ver Nooy, 36 App. Div. 581, 55 N. Y. Supp. 796. Continuing partners, who pay a debt assumed by them, cannot re- cover from a retired partner. Savage v. Putnam, 32 N. Y. 501. Where the creditor's agent, by direction of the creditor, becomes administrator of a debtor's estate, the administrator's sureties can- not be held liable by such creditor, as he himself, through his agent, is the principal on the bond. Moodie v. Penman, 3 Desaus. (S. O.) 482. 3 7 Gray v. McDonald, 19 Wis. 213. One may show that he is a supplemental surety. Chapeze v. Young, 87 Ky. 476, 9 S. W. 399. 88 Pollard v. Stanton, 5 Ala. 451; Mansfield v. Edwards, 136 Mass. 15, 49 Am. Rep. 1; Williams v. Glenn, 92 N. C. 253, 53 Am. Rep. 416. 298 STJEETT AND PRINCIPAL. (Ch. 6 pay the creditor when the time arrives for payment,* 9 but it is his legal duty to do so without waiting for any request from ■ the principal,* or asking for his permission.* 1 The law im- plies a request from the principal; and the surety may pay, even if forbidden by the principal to do so.* 2 The surety need not wait for demand to be made upon him, nor for suit to be brought by the creditor ; * s nor, if he be sued, need he notify the principal of that fact.** It was the duty of. the principal to pay the debt, and save the surety harmless; and he is not in a position to complain if the surety has done what he him- self ought to have done. Right of Action after Payment. As a general rule, the surety cannot maintain an action for indemnity until he has made payment,* 6 although there is every probability that the principal will evade meeting the so Partlow v. Lane, 3 B. Mon. (Ky.) 424, 39 Am. Dec. 473; Wells V. Mann, 45 N. Y. 327, 6 Am. Rep. 93; Wesley Church v. Moore, 10 Barr. (Pa.) 273; Baxter v. Moore, 5 Leigh (Va.) 219. <">Teberg v. Swenson, 32 Kan. 224, 4 Pac. 83; Hall v. Smith, 46 TJ. S. (5 How.) 96, 12 L. Ed. 66. « Hazelton v. Valentine, 113 Mass. 472. 4a BEAL v. BROWN, 13 Allen (Mass.) 114. 4s Fishback v. Weaver, 34 Ark. 569; Odlini v. Greenleaf, 3 N. H. 270; Mauri v. Heffernan, 13 Johns. (N. Y.) 58. ** Williams v. Greer's Adm'rs, 4 Hayw. (Tenn.) 235. 40 Lane v. Westmoreland, 79 Ala. 372 ; In re Hill's Estate, 67 Cal. 238, 7 Pac. 664 ; Jefferson v. Tunnell, 2 Del. Ch. 135 ; Bonham v. Gal- loway, 13 111. 68 ; Shepard v. Ogden, 3 111. (2 Scam.) 257 ; Stearns v. Irwin, 62 Ind. 558; Cotton v. Alexander, 32 Kan. 339, 4 Pac. 259; Forest v. Shores, 11 La. (Curry) 416; Installs v. Dennett, 6 Me. (6 Greenl.) 79; Nally v. Long, 56 Md. 567; Swift v. Crocker, 38 Mass. (21 Pick.) 241; Gardner v. Cleveland, 26 Mass. (9 Pick.) 334; Lee v. Wisner, 38 Mich. 82; Minick v. Huff, 41 Neb. 516, 59 N. W. 795; Pearson v. Parker, 3 N. H. 366; Coleman v. %ansing, 65 Barb. (N. Y.) 54; HODGES v. ARMSTRONG, 3 Dev. (N. C.) 253; Miller v. Howry, 3 Pen. & W. (Pa.) 374, 24 Am. Dec. 320; In re McConaghy's Estate, 37 Leg. Int. (Pa.) 486; Pond's Adm'rs v. Warner, 2 Vt. 532; Harper's Adm'r v. McVeigh's Adm'r, 82 Va. 751, 1 S. E. 193; Barth v. Graf, 101 Wis. 27, 76 N. W. 1100; Pigou v. French, Fed. Cas. No. 11,161, 1 Wash. C. C. 278; 40 Cent. Dig. col. 2227. Payment after action has been brought by the surety is not sufficient. Denni- son v. Soper, 33 Iowa, 183. Surety's possession of a note is prima facie evidence of its payment by him. Landrum v. Brookshire, 1 Stew. (Ala.) 252; Reynolds v. Skelton, 2 Tex. 516. §§ 153-155) surety's right to indemnity. 299 obligation ; *° but the principal, by express agreement, may give the surety a right to bring suit before the latter has made payment. 47 This would be the case if the principal has agreed to save the surety harmless. * s Payment may be made by agent ; and this agency may arise from subsequent ratification of payment made by another whom the surety reimburses.* 9 Surety No Right of Action until Maturity. The surety may pay the debt at any time, whether due or not, if the creditor is willing to accept payment; but he can- not bring suit against the principal for indemnity until the maturity of the debt. 50 Two or More Principals. If there are two or more principals, the surety can re- cover the full amount from all or any of them, 61 leaving them to adjust their respective liabilities later; and, if one of the principals be dead, the surety can recover the entire amount from his estate. 52 " Bufora v. Francisco, 3 Dana (Ky.) 68. *' Hall v. Nash, 10 Mich. 303; Dorrington v. Minnick, 15 Neb. 397, 19 N. W. 456; Port v. Jackson, 17 Johns. (N. Y.) 239; Wilson v. Stilwell, 9 Ohio St. 470, 75 Am. Dec. 477; LOOSEMORE v. RAD- POKD, 9 Mees. & W. 657. is Lathrop v. Atwood, 21 Conn. 117; Malott v. GofE, 96 Ind. 496; Baldwin v. Emery, 89 Me. 496, 36 Atl. 994; Rice v. Sanders, 152 Mass. 108, 24 N. E. 1079, 8 L. R. A. 315, 23 Am. St. Rep. 804; Furnas v. Durgin, 119 Mass. 500, 20 Am. Rep. 341; Sparkman v. Gove, 44 N. J. Law, 252; Belloni v. Freeborn, 63 N. Y. 383; Powell v. Smith, 8 Johns. (N. Y.) 249; Fletcher v. Edson, 8 Vt. 294, 30 Am. Dec. 470; Lethbridge v. Mytton, 2 B. & Ad. 772. 4» Harper's Adm'r v. McVeigh's Adm'r, 82 Va. 751, 1 S. E. 193. bo Golsen v. Brand, 75 111. 148; Ross v. Menefee, 125 Ind. 432, 25 N. E. 545; Dennison v. Soper, 33 Iowa, 183; Tlllotson v. Rose, 11 Mete. (Mass.) 299; Felton v. Bissel, 25 Minn. 20; Barber v. Gilson, 18 Nev. 89, 1 Pac. 452; Armstrong v. Gilchrist, 2 Johns. Cas. (N. Y.) 424; William's Adm'rs v. William's Adm'rs, 5 Ohio, 444; Craig v. Craig, 5 Rawle (Pa.) 91. si Bunce v. Bunce, Kirby (Conn.) 137; Dickey's Representatives v. Rogers, 7 Mart. (N. S., La.) 588; Overton v. Woodson, 17 Mo. 453; Riddle v. Bowman, 27 N. H. 236; Apgar's Adm'rs v. Hiler, 24 N. J. Law, 812; Westcott v. King, 14 Barb. (N. Y.) 32; Clay v. Sever- ance, 55 Vt. 300. 6 2 West v. Bank of Rutland, 19 Vt. 403. 300 SURETY AND PRINCIPAL. (Ch. 6 The mere fact that a principal is jointly liable with others for the debt will not give the surety any rights against such others, if they are not actual parties to the contract, 63 though, if a partner give his individual note for a firm debt, a surety on the note can recover from all the partners. 54 What Constitutes Payment. It is not necessary that such payment be the voluntary act of the surety. It may be involuntary, as where his property is sold on execution; 56 nor need it be in money. Whatever extinguishes the debt, 68 or is accepted by the creditor as pay- ment, will be sufficient. 57 Thus, it may be in property, 68 or it may be by the surety's negotiable promissory note. 68 Ne- 63 Bowman v. Blodgett, 2 Mete. (Mass.) 308; Cunningham v. Clark- son, Wright (Ohio) 217; OSBORN v. CUNNINGHAM, 20 N. C. 559. si BURNS v. PARISH, 3 B. Mon. (Ky.) 8; McKee v. Hamilton, 33 Ohio St. 7; Weaver v. Tapscott, 9 Leigh (Va.) 424. In some cases it is held that, where the instrument entered into by one partner is under seal, a surety thereon cannot recover from the other part- ners, although the bond was given for the benefit of the firm. TOM v. GOODRICH, 2 Johns. (N. Y.) 213; Moore v. Stevens, 60 Miss. 809; Krafts v. Creighton, 3 Rich. Law (S. C.) 273. 55 Clemens v. Prout, 3 Stew. & P. (Ala.) 345; Bonney v. Seely, 2 Wend. (N. Y.) 481; Hulett v. Soullard, 26 Vt 295. so BURNS v. PARISH, 3 B. Mon. (Ky.) 8. 57 Hommell v. Gamewell, 5 Blackf. (Ind.) 5; Crozier's Trustees v. Grayson, 4 J. J. Marsh. (Ky.) 514; Barber v. Gillson, 18 Nev. 89, 1 Pac. 452; Lord v. Staples, 23 N. H. 448; Bonney v. Seely, 2 Wend. (N. X.) 481; Ainslie v. Wilson, 7 Cow. 662, 17 Am. Dec. 532; Hulett v. Soullard, 26 Vt. 295; McVicar v. Royce, 17 Up. Can. Q. B. 529; Rodgers v. Maw, 15 Mees. & W. 444. 68 Randall v. Rich, 11 Mass. 494; Ainslie v. Wilson, 7 Cow. (N. Y.) 662, 17 Am. Dec. 532; Bonney v. Seely, 2 Wend. (N. Y.) 481. 59 Knighton v. Curry, 62 Ala. 404; Neale v. Newland, 4 Ark. (4 Pike) 506, 38 Am. Dec. 42; Stanley v. McElrath, 86 Cal. 449, 25 Pac. 16, 10 L. R. A. 545; Mims v. McDowell, 4 Ga. 182; Keller v. Boatman, 49 Ind. 104; Sapp v. Aiken, 68 Iowa, 699, 28 N. W. 24; Rizer v. Callen, 27 Kan. 339; Stubbing v. Mitchell, 82 Ky. 535; Day v. Stickney, 96 Mass. (14 Allen) 255; Doolittle v.-Dwight, 2 Mete. (Mass.) 561; Bausman v. Credit Guarantee Co., 47 Minn. 377, 50 N. W. 496; Pearson v. Parker, 3 N. H. 366; Howe v. Railroad Co., 37 N. Y. 297, aflirming 38 Barb. (N. Y.) 124; Witherby v. Mann, 11 Johns. (N. Y.) 518; Craig v. Craig, 5 Rawle (Pa.) 91; Peters v. Barnhill, 1 Hill (S. C.) 237; BARCLAY v. GOOCH, 2 Esp. 571; 40 Cent Dig. col. 2266. Th,e surety must giir>w that the note was taken as pay- §§ 153-155) surety's right to indemnity. 301 gotiable instruments, in law, play the part of money, 60 and giving a promissory note is, in most cases, equivalent to the payment of money, so far as bestowing upon the maker the rights which come from payment. It is immaterial that the note is not due, 61 or that it is due and unpaid, and that the maker is insolvent, or that the note cannot be collected. 62 The fact that the surety has been imprisoned for the debt will not give him a right to indemnity, 83 unless such imprison- ment has discharged the debt. Payment in Installments. A surety is not obliged to pay the entire debt before bring- ing suit for indemnity, but may recover for each installment merit. Lentell v. Getchell, 59 Me. 135. giving a nonnegroti ablp. note is not regarded as payment, aa snph an in atriTT" " 1 ' ig '""■* ""flowed with the qualities necessary for a pircnlating merlin™. || Pitzer v. Harmon, 8 Blackf. (Ind.) 112, 44 Am. Dec. 738; dimming v. Hack- ley, 8 Johns. (N. Y.) 202; Blwood v. Deifendorf, 5 Barb. (N. Y.) 398; Brisendine v. Martin, 23 N. 0. 286; Morrison v. Berkey, 7 Serg. & R. (Pa.) 238; Boulware v. Robinson, 8 Tex. 327, 58 Am. Dec. 117; Maxwell v. Jameson, 2 B. & Aid. 51. For a similar rule as between co-sureties, see post, § 164. This rule has been the subject of much* criticism, for the reason that if, for any reason, the note of the surety is not paid, it re- sults in the surety receiving and retaining money from the prin- cipal which belongs to the creditor, and violates the rule that a surety cannot speculate upon the principal. See Stearns, Law of Suretyship, p. 546; but these criticisms overlook the fact that if the surety had borrowed money from a third party, giving his note therefor, and had paid the money to the creditor, there would be no question about the right of the surety to recover from the prin- cipal, though the transaction would be equally fraudulent, or if the surety had paid cash to the creditor, who then reloaned it to the surety, the result would be the same as giving his note original- ly. It certainly is not for the principal, who has not performed his legal duty, to complain of subsequent negotiations which are mutually satisfactory to the creditor and surety, and which ex- tinguish the debt, and to insist upon the surety waiting until the second note is paid before resorting to him, at which time he may have become insolvent. When the creditor takes property of any kind, he runs the risk of its depreciation. eo Norton, Bills and Notes (3d Ed.) p. 17. «i Auerbach v. Rogin, 40 Misc. Rep. 695, 83 N. Y. Supp. 154. «2 Hardin v. Branner, 25 Iowa, 364. ea Powell v. Smith, 8 Johns. (N. Y.) 249. 302 SURETY AND PRINCIPAL. (Ch. 6 as paid. 64 This is not splitting up a cause of action as the surety's suit is not on the contract with the creditor, but upon the contract which the law implies. The surety's right to in- demnity is complete as soon as he has made payment, and the principal is not in a position to complain. If he is inconveni- enced by several suits being brought, he should have paid the debt, as it was his legal duty to do, or promptly reimburse his surety, when the latter has done what he should have done. Joint Debtors. If A., B., and C. were to sign a joint note for $3,000, each receiving $1,000, each is a principal for the amount he has re- ceived, and surety for the other two. 86 If, when the note is due,. A. should pay the entire amount, he would be entitled to recover one-third from each of his principals. Supplemental Sureties. A supplemental surety, who has paid the debt, can recover from a surety, 66 as well as from the principal,' as all prior par- ties are principals to him. A guarantor " of the payment of a note, or an indorser, is a supplemental surety for the sure- ties who have signed as makers with the principal; they be- ing sureties in the narrower sense of the word. As has been explained before, in successive appeal bonds, all those who became sureties before the last bond was given occupy the position of supplemental sureties, 68 and can recover «* Ritenour v. Mathews, 42 Ind. 7; "Wilson v. Crawford, 47 Iowa, 469 ; Pickett v. Bates, 3 La. Ann. 627 ; Bullock v. Campbell, 9 Gill (Md.) 182; William's Adm'rs v. William's Adm'rs, 5 Ohio, 444; Hall V. Hall, 29 Tenn. (10 Humph.) 352; Davies v. Humphreys, 6 Mees. & W. 153. See, also, Ex parte WOOD, cited in 10 Ves. 415. Pos- sibly, in a case where the surety is acting maliciously, he might be compelled to unite all of his claims in one suit. 6 5 See ante, c. I, note 66. es Hamilton v. Johnston, 82 111. 39; Paul v. Berry, 78 111. 158; Chapeze v. Young, 87 Ky. 476, 9 S. W. 399; SHERMAN v. BLACK, 49 Vt 198; McDonald v. Magruder, 3 Pet. (U. S.) 470, 7 L. Ed. 744; Craythorne v. Swinburne, 14 Ves. 164. An accommodation acceptor for the drawer and his sureties can recover from the latter. Dick- erson v. Turner, 15 Ind. 4. 6 7 Second Nat. Bank v. Diefendorf, 90 111. 396; Hamilton v. Johns- ton, 82 111. 39. es See ante, c. V, note 638. §§ 156-158) PROCEEDINGS TO ENFORCE INDEMNITY. 303 indemnity from any surety or set of sureties who became such at a later date than the one who has paid. NOTICE TO AND DEMAND ON PRINCIPAL UNNECESSARY. 150. The surety, if entitled to recover from the principal, can bring suit without giving him previous notice or making demand of him. JOINT ACTION BY CO-SURETIES. 157. If two or more sureties have paid the debt, they cannot join as plaintiffs against the principal, unless they have paid from a joint fund. ACTION ON ORIGINAL INSTRUMENT. 158. Suit may be brought upon the implied promise, or up- on the principal's contract with the creditor, if such contract is within the control of the surety. Notice to or Demand of Principal Not Necessary. As soon as a surety has paid his principal's debt, 68 it being due, he can bring suit against the principal without previous notice 70 or demand, 71 as it is the principal's duty to take notice that the surety has been damnified by a failure to perform his contract. 72 The right of action arises when the surety not only has dealt directly with the creditor, but when he has con- tributed his share to another surety who has satisfied the debt. 73 However, one co-surety, paying the whole debt, can maintain an action against the principal for the entire amount without molesting the others. 74 en Ritenour v. Mathews, 42 Ind. 7; Conn v. Coburn, 7 N. H. 368, 26 Am. Dec. 746. to Sikes v. Quick, 52 N. C. 19. 7i Collins v. Boyd, 14 Ala. 505; Odlin v. Greenleaf, 3 N. H. 270; William's Adm'rs v. William's Adm'rs, 5 Ohio (5 Ham.) 444. 72 Ward v. Henry, 5 Conn. 595, 13 Am. Dec. 119; Thompson V. Wilson's Ex'r, 13 La. 138. 78 Odlin v. Greenleaf, 3 N. H. 270. 7* Lowry v. Lumbermen's Bank, 2 Watts & S. (Pa.) 210. 304 SUKETT AND PRINCIPAL. (Ch. 6 Parties Plaintiff. Where each of two or more sureties has paid part of the debt, as a general rule they must bring separate actions against the principal, 75 as the promise implied by law is between the principal and the person paying ; but they can join as plaintiffs where payment has been made from a joint fund. 76 Payment will be deemed to have been made from a joint fund where sureties are liable as partners and have paid with partnership funds, 77 or where the sureties have joined in signing a note which is given in payment of the debt, 78 or they have paid as the heirs of a surety. 79 Cause of Action. The surety may satisfy the creditor's claim, and bring an action of assumpsit for money paid at the principal's request; s0 7 5 Parker v. Leek, 1 Stew. (Ala.) 523; Whitbeck v. Ramsay's Es- tate, 74 111. App. 524; Sevier v. Roddie, 51 Mo. 580; Peabody v. Chap- man, 20 N. H. 418; Gould v. Gould, 8 Cow. (N. Y.) 168; Doremus v. Selden, 19 Johns. (N. ¥.) 213; Boggs v. Curtin, 10 Serg. & R. (Pa.) 211; Newnan v. Campbell, 8 Tenn. (Mart. & Y.) 63; Pf escort v. New- ell, 39 Vt. 82; Brand v. Boulcott, 3 Bos. & P. 235. For a similar rule, when two or more co-sureties seek contribution, see post, § 168. 7 8 Dussol v. Bruguiere, 50 Cal. 456; Jewett v. Cornforth, 3 Me. 107; APPLETON v. BASCOM, 3 Mete. (Mass.) 169; Clapp v. Rice, 15 Gray (Mass.) 557, 77 Am. Dec. 387 ; Bates v. Merrick, 2 Hun (N. Y.) 568; Commonwealth v. Cox's Adm'r, 36 Pa. 442; Fletcher v. Jack- son, 23 "Vt. 581, 56 Am. Dec. 98. The presumption is that sureties have paid individually, and not jointly. Lombard v. Cobb, 14 Me. (2 Shep.) 222. 77 Day v. Swann, 13 Me. 165. An executor of a deceased partner cannot join with the surviving partner in a suit for indemnity. Gould v. Gould, 8 Cow. (N. Y.) 168. 78 Ross v. Allen, 67 111. 317; Rizer v. Callen, 27 Kan. 339; Doolittle v. Dwight, 43 Mass. (2 Mete.) 561 ; Pearson v. Parker, 3 N. H. 366. 79 Snider v. Greathouse, 16 Ark. 72, 63 Am. Dec. 54. so Ward v. Henry, 5 Conn. 595, 13 Am. Dec. 119; Junker v. Rush, 136 111. 179, 26 N. E. 499, 11 L. R. A. 183; Landsdale's Adm'rs v. Cox, 23 Ky. (7 T. B. Mon.) 401; Smith v. Sayward, 5 Me. (5 Greenl.) 504; APPLETON v. BASCOM, 3 Mete. (Mass.) 169; Gibbs v. Bryant, 18 Mass. (1 Pick.) 118; Pearson v. Parker, 3 N. H. 366; Ainslie v. Wilson, 7 Cow. (N. Y.) 662, 17 Am. Dec. 532; Powell v. Smith, 8 Johns. (N. Y.) 249; Gray v. Bowls, 18 N. C. 437; Hill v. Voorhies, 22 Pa. (10 Harris) 68; Hassinger v. Solms, 5 Serg. & R. (Pa.) 4; Mc- Wllliams v. Willis, 1 Wash. (Va.) 199; 40 Cent. Dig. col. 2282. §§ 156-158) PROCEEDINGS TO ENFORCE INDEMNITY. 305 or, in some cases, he may take an assignment of the claim, and bring an action thereon. 81 If the creditor's claim has been reduced to a judgment, the surety can have the judgment kept alive for his benefit. 82 The advantage of bringing suit upon the implied promise is that the surety can recover, not only the amount of the creditor's claim, but all reasonable costs in- curred by the surety. 83 The advantage of bringing suit upon the original contract between the principal and the creditor is that the statute of limitations would run longer on the written contract than on the implied one, 84 thus enabling suit to be brought after the implied contract was barred, or that he would obtain a priority that otherwise he would not have. Where a surety has the right to purchase the negotiable paper upon which he is liable with another, and he does so for less than its face value, he might recover the face value from the princi- pal, 85 while he could recover upon the implied promise the si See ante, c. V, note 835. See post, § 170, as to suit on original instrument in enforcing contribution from co-sureties. 82 Harris v. Frank, 29 Kan. 200; Harper v. Kemble, 65 Mo. App. 514; Nelson v. Webster (Neb. 1904) 100 N. W. 411, 68 L. R. A. 513; NEAL v. NASH, 23 Ohio St. 483; HILL v. KING, 48 Ohio St. 75, 26 N. E. 988. A surety can take an assignment of a judgment against the principal alone. Harger v. McCullough, 2 Denio (N. Y.) 119. In some states the surety's remedy is in a court of equity only. Knight v. Morrison, 79 Ga. 55, 3 S. E. 689, 11 Am. St. Rep. 405; Crisfield v. State, 55 Md. 192. The surety can have the judgment assigned to a third person, and enforced for his benefit. Katz v. Moessinger, 110 111. 372; Ferguson v. Carson, 13 Mo. App. 29, affirm- ed 86 Mo. 673; HODGES v. ARMSTRONG, 14 N. C. 253. as Burton v. Stewart, 62 Barb. (N. Y.) 194. 8* See ante, c. V, note 837. 8 5 FOWLER v. STRICKLAND, 107 Mass. 552; Blow v. Maynard, 2 Leigh (Va.) 29. After a surety has paid a note, he cannot put it in circulation against the principal. PRAY v. MAINE, 7 Cush. (Mass.) 253. Nor has he the rights of a holder. Swem v. Newell, 19 Colo. 397, 35 Pac. 734; Dillenbechk v. Dygert, 97 N. Y. 303, 49 Am. Rep. 525. In HARRAH v. JACOBS, 75 Iowa, 72, 39 N. W. 187, 1 L. R. A. 152, it was held that a surety cannot enforce a note on which he and the principal were joint makers; but in WALDRIP v. BLACK, 74 Cal. 409, 16 Pac. 226, it was said that a surety, upon payment, became the equitable assignee of the note, and entitled to enforce it. Childs' Sttbetyshif— 20 306 SURETY AND PRINCIPAL. (Oh. 6 amount which he had paid only. 86 Hence a surety should gov- ern his action according to circumstances. A judgment against the surety is prima facie evidence against the principal, 87 and it will be conclusive if the principal have notice of the suit against the surety, or if the two were sued jointly. 88 PRINCIPAL'S DEFENSES. 159. The surety, having paid the debt, cannot recover from the principal if— (a) The surety entered into the relation without the prin- cipal's request. (b) The principal lacked capacity to make the contract. (c) The surety's payment was voluntary. (d) The agreement between the surety and the principal was illegal. (e) Recovery would be contrary to public policy. (f) The surety has been paid. (g) The principal has been discharged in bankruptcy, (h) The surety's claim has been barred. Suretyship without Principal's Knowledge. As has been said, when a surety enters into his contract, the law implies a request from the principal to pay the debt when due, and a promise to reimburse the surety for all sums necessarily paid out by him. 89 It follows, from this, that no such request or promise can be implied if a person become a surety without the knowledge of the principal. 90 The law cannot imply a promise by the principal to reimburse some one so See post, § 160. si Chipman v. Fambro, 16 Ark. 291; Dewitt v. Boring, 123 Ind. 4, 23 N. B. 1085; Reed v. Humphrey, 69 Kan. 155, 76 Pac. 390; Pitts v. Fugate, 41 Mo. 405. A judgment rendered in favor of a surety against the principal without notice is not evidence in an- other state. MeNairy v. Bell, 5 Rob. (La.) 418. as Dampskibsaktieselskabet Habil v. Fidelity Co. (Ala. 1905) 39 South. 54; Rice v. Rice, 14 B. Mon. (Ky.) 417; Littleton v. Richard- son, 34 N. H. 179, 66 Am. Dec. 759; Konitzky v. Meyer, 49 N. Y. 571; Hare v. Grant, 77 N. O. 203. See note 148, infra. so Ante, § 153. so King v. Hannah, 6 111. App. (6 Bradw.) 495; McPherson v. Meek, 30 Mo. 345; White's Ex'r v. White,. 30 Vt. 338.- § 159) principal's defenses against surety. 307 about whom he knows nothing. The principal has a right to choose his creditors; and a person who becomes a surety without the principal's knowledge is, as to the principal, the same as a stranger who pays the debt. 91 In such cases, the principal successfully may resist payment by saying that he did not promise. However, where there are two or more jointly liable, a request from one of them will be" regarded as a request by all, and a surety could recover from any of them. 92 It is not requisite that the surety become such at the express request of the principal. The law will imply a request when- ever the principal seems to have authorized such security, or afterwards has recognized the relation by his acts. 98 Thus, where the principal appears in an appellate court, it will be inferred that a surety upon the appeal bond became such at the request of the principal. 8 * Incapacity of Principal. When sued by the surety, the principal can defend success- fully by showing his incapacity to enter into a contract. If the principal be an infant or an idiot, the surety cannot recover ; nor could the surety recover from a corporation if the trans- action was ultra vires.* The defense of infancy cannot be maintained successfully against a surety if it could not be against the creditor, 86 as in the case of a guaranty of the pay- ment of necessaries furnished. 96 It might be that, while the principal and surety each have . capacity to contract with the creditor, they lack capacity to en- ter into contracts with each other. Thus, where a statute forbids contracts between husband and wife, the latter, as surety for her husband, cannot recover from him on atl im- plied contract for indemnity. 87 »i CARTER v. BLACK, 20 N. C. 561. »2 Hamilton v. Johnston, 82 111. 39. »» Rlcketson v. Giles, 91 111. 154. »* Snell v. Warner, 63 111. 176. * For similar defense in action between co-sureties for contribu- tion, see post, § 172 (a). »6 Fagin v. Goggin, 12 R. I. 398. 88AYBES v. BURNS, 87 Ind. 245, 44 Am. Rep. 759; Conn v. Coburn, 7 N. H. 368, 26 Am. Dec. 746. 8T Major v. Holmes, 124 Mass. 108. 308 SXTKETT AND PRINCIPAL. (Oh. 6 Voluntary Payments. A surety cannot recover from the principal if his payment was voluntary. 98 A voluntary payment is one made with knowledge of facts showing no legal liability. A surety, who pays a note void because given in a gambling transaction, can- not recover from the principal." If a person making payment honestly supposes that he is legally liable, 100 the payment is, nevertheless, a voluntary one if he had knowledge of facts indicating lack of liability, 101 as ignorance of the law excuses no one; but payment of an enforceable judgment against the principal is not voluntary. 102 If, however, the surety, before or after suit is brought against him, pays in ignorance of the facts, he can recover from the principal, 103 unless he has been negligent. 104 If the facts were within the knowledge of the principal, he should have told the surety. 105 A payment is not voluntary because made without demand or suit, 106 if there was legal liability ; nor is it voluntary if there is a legal liability, although the principal supposes there is none. 107 A part only of the payment made by the surety may be volun- tary, as payment of usury with knowledge that it is such, where the creditor could not have collected the usury, 108 but the principal debt only. as Halsey v. Murray, 112 Ala. 185, 20 South. 575; Smith v. Staples, 49 Conn. 87; Hollinsbee v. Ritchey, 49 Ind. 261; Kimble v. Cum- mins, 3 Mete. (Ky.) 327; Hatchett v. Pegram, 21 La. Ann. 722. And see post, § 172 (c), for similar defense in action for contribution from co-sureties. »» Harley v. Stapleton's Adm'r, 24 Mo. 248; Davis v. Stokes Coun- ty, 74 N. C. 374. ioo Bancroft v. Abbott, 3 Allen (Mass.) 524. ioi Sponhaur v. Malloy, 21 Ind. App. 287, 52 N. B. 245. 102 Randolph's Adm'x v. Randolph, 3 Rand. (Va.) 490. 103 Gasquet v. Oakey, 19 La. 76; Hyde v. Miller, 45 App. Div. 396. 60 N. Y. Supp. 974. ioi Hichborn v. Fletcher, 66 Me. 209, 22 Am. Rep. 562. los Stinson v. Brennan, Cheves, Law (S. C.) 15. ioo stallworth v. Preslar,-34 Ala. 505; Fishback v. Weaver, 34 Ark. 569; Judah v. Mieure, 5 Blackf. (Ind.) 171; Bond v. Bishop, 18 La. Ann. 549; Hichborn v. Fletcher, 66 Me. 209, 22 Am. Rep. 562; Odlin v. Greenleaf, 3 N. H. 270; Linn v. McClelland, 20 N. C. 596; Pitt v. Purssord, 8 Mees. & W. 538. 107 Bancroft v. Pearce, 27 Vt. 668. los Jones v. Joyner, 8 Ga. 562. § 159) principal's defenses against surett. 309 While, as a general rule, whatever discharges the principal discharges the surety, 109 so that payment made by the surety in cases where the creditor cannot enforce the liability of the principal would be considered voluntary, it sometimes happens that the creditor can hold the surety after his right of action against the principal has been lost; 110 and the surety, upon his being compelled to pay, can recover from the principal not- withstanding the creditor could not recover from the latter. 211 Thus, owing to the absence of the surety in another state, the statute of limitations may have been suspended as to him, al- though the action is barred as to the principal, and the surety, upon payment, can recover indemnity. So a surety, after paying a co-surety his proportion of the indebtedness paid by the latter, can recover from the principal, although the claim of the payee was barred as to the principal. 112 Waiver of Personal Defenses by Surety Does Not Make Payment Voluntary. If a surety pays the debt after the debt is barred against both himself and the principal, he cannot recover from the principal; 113 though, if the debt is not barred against the principal, the surety can recover, though the debt was barred as to him. 11 * As the defense of the statute of limitations is a personal one, the surety may waive it, 115 though he cannot waive it for the principal. Likewise, the surety can waive loo Ante, § 128. no See ante, § 130. niMcBroon v. Governor, 6 Port. (Ala.) 32; Eeid v. Flippen, 47 Ga. 273; Gieseke v. Johnson, 115 Ind. 308, 17 N. B. 573; Reed v. Humphrey, 69 Kan. 155, 76 Pac. 390; Godfrey v. Rice, 59 Me. 308; Bullock v. Campbell, 9 Gill (Md.) 182; Barnsback v. Reiner, 8 Minn. 59 (Gil. 37); Scott v. Nichols, 27 Miss. 94, 61 Am. Dec. 503; Norton v. Hall, 41 Vt. 471. Where the creditor does not present his claim against the estate of a deceased principal within the time designated by statute, a surety, paying the debt, may recover indemnity from the estate. Hooks v. Branch Bank, 8 Ala. 580; Braught v. Griffith, 16 Iowa, 26; Miller v. Woodward, 8 Mo. 169; SIBLEY v. McALLAS- TER, 8 N. H. 389; Marshall v. Hudson, 9 Yerg. (Tenn.) 57. ii2 Odlin v. Greenleaf, 3 N. H. 270. us STONE v. HAMMELL, 83 Cal. 547, 23 Pac. 703, 8 L. R. A. 425, 17 Am. St. Rep. 272. U«td^Jfr*- '< t Y"" > ~ X ' "-fc««**. T* v ii* Shaw v. Loud, 12 Mass. 447; McClatlhie v. Durham, 44 Mich. 435, 7 N. W. 76. us Ante, § 134. 310 SURETY AND PRINCIPAL. (Ch. 6 the defense of the statute of frauds, 116 and pay a debt which could not be enforced against him because his promise was not evidenced in writing. 117 The statute of frauds was enacted for the benefit of the surety, 118 and not for the benefit of the principal. It does not make the contract void, and has no ap- plication to the implied contract of the principal to indemnify his surety. The same rule applies to an indorser of a nego- tiable instrument, who may waive his right to consider him- self discharged on account of the failure of the holder to com- ply with the conditions in regard to presentment, demand, and notice; and, after payment, he can recover from the party primarily liable. 119 So, a surety may waive any personal de- fense, such as infancy, pay the debt, and recover from his principal the amount so paid. The rule is, so long as the principal remains liable to the creditor, the surety may pay the debt and hold the principal, although the creditor could not enforce payment from the surety on account of defenses personal to the latter; but, if the surety actually has been released from legal liability, he cannot refuse to make a defense, and, by payment of the debt, hold the principal. 129 Illegal Contracts. Payment by a surety on a void contract, which could not be enforced by the creditor, would be a voluntary one ; and such would be the case where the surety pays, knowing of facts showing the transaction to be illegal. 121 There are instances, however, where the contract with the creditor or obligee is perfectly legal and valid; but an express agreement entered us Ante, § 90. ii7 Godden v. Pierson, 42 Ala. 370; Ames v. Jackson, 115 Mass. 512; Cahill v. Bigelow, 18 Pick. (Mass.) 369; Lee v. Stowe, 57 Tex. 444. us BEAL v. BROWN, 13 Allen (Mass.) 114. n» Stanley v. McElrath, 86 Cal. 449, 25 Pac. 16, 10 L. R. A. 545. In SLEIGH v. SLEIGH, 5 Exch. 514, it was held that an accommodation drawer, who had not received notice of dishonor, and who paid part of the bill without taking it up and without re- quest from the acceptor, could not recover from the latter. 120 Spilman v. Smith, 15 B. Mon. (Ky.) 134. i2i See note 99, supra. § 159) principal's defenses against sueett. 311 into between the principal and his sureties for the performance of some illegal act in connection with the position occupied by the principal prevents recovery by the surety from the principal, the law being that the courts will not lend their aid to parties to an unlawful agreement. 122 In such cases payment by sureties to the creditor or obligee cannot be said to be voluntary, as the creditor or obligee has not participated in the unlawful transaction, and can enforce the liability of the sureties. The sureties, though, cannot recover from the principal, if he choose to take advantage of the illegality. Where sureties signed the bond of a public officer upon the strength of his promise to loan the public funds improperly, and in such a way that they would receive the benefit of the loan, and the sureties are compelled to make good a default of the officer, they will not be permitted to recover anything from their principal. 123 If the obligation itself is not invalid, it is no defense to the principal that the surety knew that it was given improperly. Thus, sureties on a replevin bond can recover from the prin- cipal, although the former knew that the replevin suit was without foundation. 124 Where the illegality is unknown to the surety at the time of entering into the contract, and is of such a nature that it does not render the contract void, but the principal can waive it as a defense if he desires to do so, the surety, although he learns of the illegality before payment, can recover from the principal, unless the latter has notified the surety of his desire to avail himself of the defense. Such would be the case of a note tainted with usury. 125 Contracts Opposed to Public Policy. In some cases, on grounds of public policy, a surety will not be allowed to recover from the principal. Sureties on a bail bond in a criminal proceeding, who have been compelled 122 Clark, Cont. (2d Ed.) p. 336. 123 Ramsay's Estate v. Whitbeck, 183 111. 550, 56 N. E. 322. 12* Smith v. Rines, 32 Me. 177. Where an appeal bond has been accepted, and the proceeding has been stayed by virtue of it, its validity cannot be questioned by the principal in an action by the sureties; he being estopped. Bates v. Merrick, 2 Hun (N. Y.) 568. 12 5 Jones v. Joyner, 8 Ga. 562. 312 SURETY AND PRINCIPAL. (Ch. 6 to pay on account of the failure of the accused to appear in accordance with the terms of the bond, can recover nothing from the principal, except costs which they have been com- pelled to pay. 126 To allow otherwise would be to permit the accused to purchase his freedom, and take away the incentive of the sureties to perform their obligation to have the principal appear. If they allow the accused to escape, they should suf- fer for their wrongdoing. If, at the time the sureties entered upon their contract, the accused, or a third person, deposited money with them to in- demnify against possible loss, and the accused is discharged afterwards, he cannot recover the money from the sureties, as such an arrangement was illegal. 127 Performance by Principal. When sued by the surety, the principal may show, in his defense, that he has performed his implied contract. If the surety has taken property from the principal in satisfaction of the liability incurred, nothing more can be recovered. 128 However, where one co-surety has paid the creditor, the principal cannot escape liability to him by showing payment to another co-Surety, 129 though a supplemental surety might not be able to recover from the principal if the latter had paid the surety. 130 Bankruptcy of Principal. If the principal is discharged in insolvency 131 or in bank- ruptcy 182 after the surety has paid the debt, he cannot be held liable by the surety, unless the debt is one of the char- 128 United States v. Ryder, 110 U. S. 729, 4 Sup. Ot. 196, 28 L. Ed. 308; JONES v. ORCHARD, 16 C. B. 614. Contra, Reynolds v. Harral, 2 Strob. (S. C.) 87. 127 Dunkin v. Hodge, 46 Ala. 523; Herman v. Juechner, 15 Q. B. D. 561, overruling Wilson y. Strugnell, 7 Q. B. D. 548; Consoli- dated Co. v. Musgrave, [1900] 1 Ch. 37. 128 Lewis v. Lewis, 92 111. 237. 120 Lowry v. Bank, 2 Watts & S. (Pa.) 210. iso See NEW YORK STATE BANK v. FLETCHER, 5 Wend. (N. Y.) 85. i3i THAYER v. DANIELS. 110 Mass. 345. 182 Smith v. Kinney, 6 Neb. 447; CROMER v. CROMER'S ADM'RS 29 Grat. (Va.) 280. See post, § 172 (j), as to defense of bankruptcy among co-sureties. § 159) principal's defenses against surety. 313 acter excepted from the operation of the bankruptcy act ; 133 nor can the principal be held by the surety, though the debt was not due at the time of the principal's discharge, and was paid by the surety thereafter, if the claim was such that it could have been presented against the bankrupt's estate ; 134 but it is otherwise as to claims which could not be presented. 136 Statute of Limitations. The right of the surety to enforce the liability of the princi- pal may be taken away by the statute of limitations ; 136 but the statute does not begin to run until the surety has paid the debt, 187 as the right of action against the principal does not accrue until that time. 188 The surety's right of action is based upon a breach of the implied promise by the principal, and there is no breach until the principal has failed to reimburse the surety upon payment by the latter. If the debt be paid in 133 Halliburton v. Carter, 55 Mo. 435. See Bankr. Act U. S. July 1, 1898, c. 541, § IT, 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428] as to the debts not affected by a discharge in bankruptcy. If the debt was paid by the surety prior to the bankruptcy of the prin- cipal, he cannot recover from the principal after the latter's dis- charge, although the debt paid by the surety was one of the class of excepted debts. After payment by the surety, it lost its former character, and became a simple contract debt of the surety against the principal. CROMER v. CROMER'S ADM'RS, 29 Grat. (Va.) 280. is4 Lipscomb v. Grace, 26 Ark. 231, 7 Am. Rep. 607; MACE v. WELLS, 7 How. (U. S.) 272, 12 L. Ed. 698, reversing Wells v. Mace, 17 Vt. 503; Cobb v. Overman, 109 Fed. 65, 48 C. C. A. 223, 54 L. R. A. 369; Hayer v. Comstock, 7 Am. Bankr. Rep. 493, 88 N. W. 351; Bankr. Act U. S. July 1, 1898, c. 541, § 57i, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443]. i3B Buel v. Gordon, 6 Johns. (N. Y.) 126; Comfort v. Eisenbeis, 11 Pa. 13; Ex parte MARSHAL, 1 Atkyns, 129. 136 Usher v. Tyler, 85 S. W. 166, 27 Ky. Law Rep. 354. See post, § 172 (k), as to the running of the statute of limitations between co-sureties. 137 Reid v. Flippen, 47 Ga. 273; Shepard v. Ogden, 2 Scam. (111.) 257 ; Wilson v. Crawford, 47 Iowa, 469 ; Bullock v. Campbell, 9 Gill (Md.) 182; THAYER v. DANIELS, 110 Mass. 345; Barnsback v. Reiner, 8 Minn. 59 (Gil. 37); Rucks v. Taylor, 49 Miss. 552; Burton v. Rutherford, 49 Mo. 255; Wesley Church v. Moore, 10 Pa. 273; Con- sidine v. Considine, 9 Ir. L. 400. 13 8 Williams' Adm'rs v. Williams' Adm'rs, 5 Ohio, 444. See note 45, supra. 314 SURETT AND PRINCIPAL. (Ch. 6 installments, the statute begins to run from the payment of each. 189 As the action is upon an implied contract, it comes within the provision of the statute in regard to unwritten contracts. 1 * AMOUNT OF RECOVERY. 160. A surety can. recover from the principal the amount that he has paid only, with interest and necessary expenses. Surety Cannot Speculate on Principal. When suit is brought by the surety against the principal, recovery can be had for the amount only which the surety has been compelled to pay the creditor, 1 * 1 with interest and the necessary expenses of litigation. As the object of the implied contract is to indemnify the surety, he will not be al- lowed to speculate. 1 * 2 If he has succeeded in discharging the debt for less than the full amount due, he cannot recover any more than he has paid ; and, if the principal should pay the surety more than the latter has paid, the principal can recover the excess. 1 * 3 But it does not affect the surety's right to re- 139 DAVIE S v. HUMPHRIES, 6 Mees. & W. 153. "oKreider v. Isenbice, 123 Ind. 10, 23 N. E. 786; Poe v. Dixon, 60 Ohio St. 124, 54 N. E. 86, Tl Am. St. Rep. 713; Sherrod v. Wood- ard, 15 N. C. 360, 25 Am. Dec. 714. i4i WALDRIP v. BLACK, 74 Cal. 409, 16 Pac. 226; Stanford v. Connery, 84 Ga. 731, 11 S. E. 507; Coggeshall v. Ruggles, 62 111. 401; Gieseke v. Johnson, 115 Ind. 308, 17 N. E. 573; Crozier's Trus- tees v. Grayson, 4 J. J. Marsh. (Ky.) 514; Nolte v. Creditors (La.) 7 Mart. (N. S.) 9; Martindale v. Brock, 41 Md. 571; Delaware, L. & W. R. R. Co. v. Oxford Co., 38 N. J. Eq. 151; Bonney v. Seely, 2 Wend. (N. Y.) 481; Price v. Horton, 4 Tex. Civ. App. 526, 23 S. W. 501; Blow v. Maynard, 2 Leigh (Va.) 29; Reed v. Norris, 2 Myl. & Cr. 361; 40 Cent. Dig. col. 2255. Where an accommodation payee of a note purchases it for less than its face value, he cannot recover full value from the maker. Dorsey v. Creditors (La.) 7' Mart. (N. S.) 498; Pace v. Robertson, 65 N. C. 550. Contra, FOWLER v. STRICK- LAND, 107 Mass. 552. And see note 85, supra. For a similar rule as between co-sureties, see post, § 165. i*2 Schoonover v. Allen, 40 Ark. 132; DINKGRAVE'S SUCCES- SION, 31 La. Ann. 703; Eaton v. Lambert, 1 Neb. 339; Matthews v. Hall's Adm'r, 21 W. Va. 510. lis Price v. Horton, 4 Tex. Civ. App. 526, 23 S. W. 501. § 160) AMOUNT RECOVERABLE BT SURETY. 315 cover the full amount paid because a co-surety afterwards has paid him one-half, as he simply would hold one-half of the amount recovered from the principal in trust for the co- surety. 14 * Where the surety has discharged the debt by the transfer of property or depreciated currency to the creditor, the former can recover from the principal the market value thereof only, as it was at the time of the settlement with the creditor. 146 If the sureties, when sued by the creditor, set off a claim which they have against him, the amount which they can recover from the principal is not limited to the excess of the creditor's claim over theirs, but extends to the whole amount of the creditor's claim, as they have discharged the debt partly in cash and partly in their own property; their property being the chose in action. 148 A provision in the original contract that any payments mavle by the surety shall be conclusive as to the liability of the principal is contrary to public policy and will not be en- forced ; 147 but where a surety is sued with the principal, or, if sued alone, notifies the principal, the record of the recovery is conclusive evidence of the measure of damages, 148 for "it would be iniquitous for the principal to stand by and see an excessive recovery against his surety, which he alone could prevent, and then set up the defense when his surety sues him." 148 "* Strong v. Blanchard, 4 Allen (Mass.) 538. 1*5 Jordan v. Adams, 7 Ark. (2 Bng.) 348; Miles v. Bacon, 4 J. J. Marsh. (Ky.) 457; DINKGRAVE'S SUCCESSION, 31 La. Ann. 703; Hall's Adm'r v. Creswell, 12 Gill & J. (Md.) 36; Bonney v. Seely, 2 Wend. (N. Y.) 481; Kendrick v. Forney, 22 Grat. (Va.) 748; Butler v. Butler's Adm'r, 8 W. Va. 674. i4e Keokuk v. Love, 31 Iowa, 119. 147 Fidelity & Casualty Co. of New York v. Crays, 76 Minn. 450, 79 N. W. 531; Fidelity & Casualty Co. of New York v. Eickhoff, 63 Minn. 170, 65 N. W. 351, 30 L. R. A. 586, 56 Am. St Rep. 464. 148 Rice v. Rice, 14 B. Mon. (Ky.) 417; Littleton v. Richardson, 34 N. H. 179, 66 Am. Dec. 759. 148 HARE v. GRANT, 77 N. C. 203. And see note 87, supra. 316 SUKETY AND PRINCIPAL. (Ch. 6 Interest. The surety is entitled to recover interest 150 at the legal rate 1B1 on the amount paid, from the date of payment to the time of entering judgment ; for the principal has had the use of the money during that time, and the surety has been de- prived of its use. Costs and Expenses. As it is the duty of a surety to pay the debt when due, he has no right to recover the costs of litigation entered into by him to resist the just claim of the creditor, 152 or even the unnecessary costs of a default, 163 unless an express contract between the surety and the principal is broad enough to cover such expenses ; 1B * but if the principal desires a defense, 155 or the surety has reasonable grounds to suppose that the creditor's claim is not valid, and in good faith resists the cred- itor's claim, he can recover the necessary expenses of litiga- tion 156 — the burden of proof being upon him to show that 160 WALDRIP v. BLACK, 74 Cal. 409, 16 Pac. 226; Owings v. Owings, 26 Ky. (3 J. J. Marsh.) 590; Winder v. Diffenderfier, 2 Bland (Md.) 166; Hayden v. Cabot, 17 Mass. 169; Bushong v. Taylor, 82 Mo. 660; Eaton v. Lambert, 1 Neb. 339; Child v. Powder Works, 44 N. H. 354 ; Vail v. Hartman, 1 C. P. Rep. (Pa.) 132 ; Hicks' Adm'x v. Bailey, 16 Tex. 229; Robinson v. Sherman, 2 Grat. (Va.) 178, 44 Am. Dec. 381; Cranmer v. McSwords, 26 W. Va. 412; Whereatt v. Ellis, 103 Wis. 348, 79 N. W. 416, 74 Am. St. Rep. 865. i5i WALDRIP v. BLACK, 74 Cal. 409, 16 Pac. 226. Under a statutory provision, interest at the rate named in the original in- strument might be recoverable. See White v. Miller, 47 Ind. 385. 102 Beckley v. Munson,. 22 Conn. 299; Emery v. Vinall, 26 Me. (13 Shep.) 295; Sheehan v. Carroll, 124 Mass. 67; Hayden v. Cabot, 17 Mass. 169; Whitworth v. Tilman, 40 Miss. 76; Holmes v. Weed, 24 Barb. (N. Y.) 546; Wynn v. Brooke, 5 Rawle (Pa.) 106; 40 Cent. Dig. col. 2253. A regular or ordinary indorser cannot recover from the drawer costs which he has been compelled to pay. Simpson v. Griffin, 9 Johns. (N. Y.) 131. ibs See PIERCE v. WILLIAMS, 23 L. J. R. Exeh. 322. 154 The surety can recover costs if the principal has agreed in writing to save the surety harmless. Bonney v. Seely, 2 Wend. (N. Y.) 481. 155 HOWES v. MARTIN, 1 Esp. 162. loeooffeen Coal Co. v. Barry, 56 111. App. 587; Wagenseller v. Prettyman, 7 111. App. 197; Bosley v. Taylor, 5 Dana (Ky.) 157, 30 Am. Dec. 677; Backus v. Coyne, 45 Mich. 584, 8 N. W. 694; Apgar's § 160) AMOUNT RECOVERABLE BY SURETY. 317 his course was calculated to protect the principal's interests as well as his own. 157 The surety cannot collect from the principal attorney fees paid by the surety in prosecuting the suit against the principal, unless he brings suit on the original instrument itself, which provides for attorney fees, 158 though, of course, he is entitled to costs of the suit against the principal. 169 Indirect Damage. As the damages recoverable upon any contract are such only as the parties might have supposed to be the natural result of the breach thereof, 160 it follows that a surety cannot recover from the principal any indirect, remote, or conse- quential damages. 161 When the surety entered into the con- tract with the creditor, he assumed the inconvenience of being called upon to make payment, and the principal is justified in supposing that a breach of the contract will entail no more loss on the surety than the amount apparently required to settle the debt. Although a surety's property is disposed of at a sacrifice under a forced sale, and his business is broken Adm'rs v. Hiler, 24 N. J. Law, 812; Thompson v. Taylor, 72 N. Y. 32; Baker v. Martin, 3 Barb. (N. Y.) 634; Bright v. Lennon, 83 N. C. 183; Vail v. Hartman, 1 C. P. Rep. (Pa.) 132; Abeles v. Mitchell, 13 Phila. (Pa.) 81; McKenna v. George, 2 Rich. Eq. (S. C.) 15; Gross v. Davis, 87 Tenn. 226, 11 S. W. 92, 10 Am. St. Rep. 635; Bennett v. Dowling, 22 Tex. 660; Briggs v. Boyd, 37 Vt, 541; Borland v. Curry, 4 Q. B. C. P. & Ex. (Ir. L.) 273. i" Redfleld v. Haight, 27 Conn. 31; Whitworth v. Tilman, 40 Miss. 76; Thompson v. Taylor, 72 N. Y. 32; Cranmer v. McS words, 26 W. Va. 412. i5s CARPENTER v. MINTER, 72 Tex. 370, 12 S. W. 180. If the suit is on the implied promise of the principal, and not on the note, the attorney fees provided for in the note are not recoverable, if the surety has paid the note without suit. Gieseke v. Johnson, 115 Ind. 309, 17 N. E. 573. lea O wings v. Owings, 26 Ky. (3 J. J. Marsh.) 590; Apgar's Adm'rs v. Hiler, 24 N. J. Law, 812; Elwood v. Deifendorf, 5 Barb. (N. Y.) 398; Bonney v. Seely, 2 Wend. (N. Y.) 481; Feamster v. Withrow, 12 W. Va. 611. 160 Clark, Cont. (2d Ed.) p. 485. lei Pow«ll v. Smith, 8 Johns. (N. Y.) 249; Vance v. Lancaster, 3 Hayw. (Tenn.) 130. 318 STTRETT AND PRINCIPAL. (Ch. 6 up, he cannot recover from the principal any more than the amount of the creditor's claim, with interest. 182 APPLICATION OF SECURITY GIVEN SURETY. 161. If a surety has been given security, he may apply it on the debt as soon as the debt is due and unpaid. If the principal or a third person has given the surety in- demnity against any loss which he may sustain by reason of having entered into the relation, he may proceed to make such security available before he has paid the debt. 163 If the se- curity be a mortgage, he may foreclose it as soon as he is called upon by the creditor for payment. 164 If the security be property, the surety may sell it to procure proceeds with which to make payment. 186 If the surety has been compelled to pay, he can enforce the security, although the remedy of the creditor against the principal has been barred by the statute of limitations. 166 Security for Several Debts. If the surety be liable for two or more debts, due at dif- ferent times, and holds security for all, he may proceed to enforce the security after the first debt is due, and need not wait until after the maturity of the others. 167 182 Hayden v. Cabot, 17 Mass. 169. i«s Mattingly v. Paul, 88 Ind. 95; Klein v. Funk, 82 Minn. 3, 84 N. W. 460; Tankersley v. Anderson, 4 Desaus. (S. C.) 44. Contra, Darst v. Bates, 51 111. 439; Planters' Bank v. Douglass, 2 Head (Tenn.) 699. i«4 De Cottes v. Jeffers, 7 Fla. 284; In re Montgomery's Succes- sion, 2 La. Ann. 469; Markell v. Eichelberger, 12 Md. 78; Kramer v. Farmers' Bank, 15 Ohio, 253; Hellams v. Abercrombie, 15 S. C. 110, 40 Am. Rep. 684. If a mortgage be given to secure three guarantors, all may join in foreclosing it, although one has paid nothing. Dye v. Mann, 10 Mich. 291. 185 Bird v. Benton, 13 N. C. 179. 186 Rucks v. Taylor, 49 Miss. 552. 18 7 Smith v. James, 1 Miles (Pa.) 162. § 161) surety's application of security. 319 Security Cannot be Applied on Other Debts. The surety must apply security to the particular debt for which it was given; 16s but, where a mortgage was given to indemnify a surety against loss upon certain notes, such se- curity was held to extend to other notes given in substitution of the original ones. 169 Ignorance of Security. Where security has been given without the knowledge of the surety, he can take advantage of it when he discovers it, because a trust has been created in his favor which he can enforce. 170 Thus, where land was conveyed to a third person, who agreed to sell it and apply the proceeds upon a note for which a surety was liable, the latter can compel the grantee to carry out his agreement, although the surety was not aware of the conveyance at the time it was made. 171 168 Clark v. Oman, 15 Gray (Mass.) 521; Newell v. Hurlburt, 2 Vt 351. lee Pond v. Clarke, 14 Conn. 334. See, also, Patterson v. Johns- ston, 7 Ohio, 225, pt 1. 170 Woodbury v. Bowman, 14 Me. 154, 31 Am. Dec. 40. i7i Pratt v. Thornton, 28 Me. 355, 48 Am. Dee. 492. 320 EIGHTS AND LIABILITIES OF CO-STJUETIES. (Ch. 1 CHAPTER VII. RIGHTS AND LIABILITIES OF CO-SURETIES AS TO EACH OTHER. 162. Who Are Co-Sureties. 163. Contribution — In General. 164. What Is Payment. 165-167. Amount Recoverable. 168-171. Suit for Contribution. 172-174. Defenses. 175. Subrogation. WHO ARE CO-SURETIES. 162. Sureties who are bound similarly for the same princi- pal, to the same creditor or obligee, and for the same debt or duty, are co-sureties, although they are bound by separate instruments, executed at different times, wtihout knowledge of each other. Having discussed the rights and liabilities of the surety and creditor, and of the surety and principal, it is the intention to treat, in this chapter, of the rights and liabilities of co-sure- ties as such; but, before discussing these rights and liabili- ties, it will be necessary to determine who are co-sureties. It is not sufficient, to constitute persons co-sureties, that they all became bound for the same principal, to the same creditor, at the same time; for the same principal might give several notes at one time to the same creditor, yet each might be for a distinct debt entirely independent of the others. 1 Nor is it sufficient that they all became secondarily liable on the same instrument, and would be liable for the same default of the principal ; for on the same promissory note some of the parties may be sureties as co-makers, some supplemental sure- ties, some guarantors, and some indorsers, the contract of each being entirely independent from that of the others, with dif- i COOPE v. TWYNAM, Turn. & R. 426; Pendlebury v. Walker, 4 Younge & C. (Exch.) 424. § 162) WHO ARE CO-SURETIES. 321 ferent rights and liabilities connected therewith, and they are not co-sureties as to each other. If, however, sureties undertake to be bound to the same creditor or obligee for the payment of the same debt or the performance of the same duty by the same principal, and the terms of their contracts are substantially the same, they are co-sureties, 2 even though they execute separate instruments, 3 and at different times, 4 in ignorance of each others' engage- ments. 5 Courts regard the substance more than the form of the con- tracts. 6 Sureties who sign the same note as makers with the principal would be co-sureties in the absence of any express agreement, and are presumed to be such. 7 So would all the sureties on the same bond of an officer ; but an officer may give 5 Woodworth v. Bowes, 5 Ind. (3 Port.) 276; Stockmeyer v. Oert- ling, 35 La. Ann. 467; Taylor v. Savage, 12 Mass. 98; Norton v. Coons, 6 N. Y. 33. Where one section of a statute requires a dram- shop keeper to give bond conditioned that he will pay to all per- sons all damages they may sustain by the sale of liquor, and an- other section makes the owner of the premises jointly liable with the dramshop keeper for damages sustained by a husband, wife, or child, caused by the sale of liquor, the owner of the premises is not a co-surety with the sureties on the bond. Wanack v. Michels, 215 111. 87, 74 N. B. 84, affirming 114 111. App. 631. s Dugger v. "Wright, 51 Ark. 232, 11 S. W. 213, 14 Am. St. Rep. 48; Houck v. Graham, 106 Ind. 195, 6 N. E. 594, 55 Am. Rep. 727; Elbert v. Jacoby, 8 Bush (Ky.) 542; Young v. Shunk, 30 Minn. 503, 16 N. W. 402; Armitage v. Pulver, 37 N. Y. 494; Schram v. Werner, 85 Hun, 293, 32 N. Y. Supp. 995; Pickens v. Miller, 83 N. C. 543; Harris v. Ferguson, 2 Bailey (S. C.) 397; Rosenbaum v. Goodman, 78 Va. 121; Rudolf v. Malone, 104 Wis. 470, 80 N. W. 743; DEER- ING v. WINCHELSEA, 2 Bos. & P. 270, 1 Cox, 318. *Ammons v. People, 11 111. 6; Stevens v. Tucker, 87 Ind. 109; WARNER v. MORRISON, 3 Allen (Mass.) 566; Forbes v. Harring- ton, 171 Mass. 386, 50 N. E. 641; State v. Hull, 53 Miss. 626; Com- monwealth v. Cox's Adm'r, 36 Pa. 442; McGlothlin v. Wyatt, 1 Lea (Tenn.) 717. b Monson v. Drakeley, 40 Conn. 552, 16 Am. Rep. 74; WARNER v. MORRISON, 3 Allen (Mass.) 566; Chaffee v. Jones, 19 Pick. (Mass.) 260; Wells v. Miller, 66 N. Y. 255; Barry v. Ransom, 12 N. Y. 462; CRAYTHORNE v. SWINBURNE, 14 Ves. 160. « REYNOLDS v. WHEELER, 10 C. B. (N. S.) 561. 7 Houck v. Graham, 106 Ind. 195, 6 N. E. 594, 55 Am. Rep. 727; Eisley v. Horr, 42 Neb. 3, 60 N. W. 365. Childs' Suretyship — 21 322 RIGHTS AND LIABILITIES OF CO-SURETIES. (Ch. 7 two or more bonds at different times, yet the sureties on all the bonds would be co-sureties if the bonds were given for the performance of the same official duty. 8 If, however, one bond has been given to supersede the other, 9 or the duties secured are different, they are not co-sureties. Thus, sureties on a bond given by an administrator to secure the performance of his duties in general are not co-sureties with sureties on a bond given by him to secure the proper performance of du- ties connected with the sale of real estate only. 10 If three persons sign a note jointly, each receiving a part of the money for which the note is given, any two of them will be co-sureties for the remaining one. 11 Where an agent of various persons pledges the notes of such persons for his debt, the owners of the notes are co-sureties for the agent. 12 Supplemental Sureties Not Co-Sureties. A supplemental surety is not a co-surety with the surety, 15 for the surety is, as to him, in the position of a principal ; 14 and it does not make any difference that the surety supposed that another would sign as co-surety. 16 Where a surety, sign- ing after other sureties have signed, adds the words, "surety to the above," after his signature, it indicates an intention to s Powell v. Powell, 48 Cal. 235 ; Wann v. People, 57 111. 202 ; Bur- nett v. Millsaps, 59 Miss. 333; Cherry v. Wilson, 78 N. O. 164; Harris v. Ferguson, 2 Bailey (S. C.) 397. » State ex rel. Knapp, Stout & Co. v. Finn, 23 Mo. App. 290. io Salyers v. Ross, 15 Ind. 130. ii Henderson v. McDuffee, 5 N. H. 38, 20 Am. Dec. 557. See, also, Moore v. State, 49 Ind. 558; Collins v. Carlisle, 7 B. Mon. (Ky.) 13; Newton v. Newton, 53 N. H. 537; Boyd's Ex'rs v. Boyd, 3 Grat. (Va.) 113. laMcBRIDE v. POTTER-LOVELL CO., 169 Mass. 7, 47 N. E. 242, 61 Am. St. Rep. 265. "Buckley v. House, 62 Conn. 459, 26 Atl. 352, 21 L. R. A. 247; Robertson v. Deatherage, 82 111. 511; Paul v. Berry, 78 111. 158; Knox v. Vallandingham, 21 Miss. (13 Smedes & MO 526; Whitehouse v. Hanson, 42 N. H. 9; Dawson v. Pettway, 20 N. C. 531; PRESTON v. PRESTON, 4 Grat. (Va.) 88, 47 Am. Dec. 717; CRAYTHORNE V. SWINBURNE, 14 Ves. 160. "Ante, c. VI, note 66. in Adams v. Flanagan, 36 Vt. 400. § 162) WHO ARE CO-SURETIES. 323 be a supplemental surety. 16 As has been shown before, where successive bonds are given in legal proceedings, the sureties upon one obligation are supplemental sureties as to those on obligations given afterwards," and not co-sureties with them. 18 So, successive indorsers are not co-sureties, 19 but each occu- pies the relation of a supplemental surety for those who became indorsers before he did; 20 and guarantors are supplemental sureties as to sureties in the narrower sense. 21 True Relation May Be Shown Orally. Evidence as to the actual relation is always admissible, 22 and it is competent for a surety to show an oral agreement with ie Harris v. Warner, 13 Wend. (N. Y.) 400; Thompson v. Sanders, 20 N. G. 539; Singer Mfg. Co. v. Bennett, 28 W. Va. 16. it Ante, c. V, note 638. i s Dunlap v. Foster, 7 Ala. 734 ; Ohrisinan v. Jones, 34 Ark. 73 ; Friberg v. Donovan, 23 111. App. 58; Brandenberg v. Flynn, 12 B. Mon. (Ky.) 397; Hinckley v. Kreitz, 58 N. Y. 583; Pott v. Nathans, 1 Watts & S. (Pa.) 155, 37 Am. Dec. 456; Chaffin v. Campbell, 4 Sneed (Tenn.) 184; PRESTON v. PRESTON, 4 Grat. (Va.) 88, 47 Am. Dec. 717. Of course, if the surety joins in the appeal, he be- comes a principal as to the surety on the appeal bond. Hartwell v. Smith, 15 Ohio St. 200; Cowan v. Duncan, Meigs (Tenn.) 470. is Nurre v. Chittenden, 56 Ind. 462; McGurk v. Huggett, 56 Mich. 187, 22 N. W. 308; Briggs v. Boyd, 37 Vt. 534. Accommodation in- dorsers are not co-sureties. Knopf v. Morel, 111 Ind. 570, 13 N. E. 51; Smith v. Smith, 16 N. C. 173. An accommodation indorser is not a co-surety with an accommodation acceptor. Gomez v. Laza- rus, 16 N. C. 205. Successive irregular indorsers are not co-sureties. M'DONALD v. MAGRUDER, 3 Pet. (U. S.) 470, 7 L. Ed. 744. 20 Ante, c. I, note 19. ziMonson v. Drakeley, 40 Conn. 552, 15 Am. Rep. 74; Hamilton v. Johnston, 82 111. 39; Longley v. Griggs, 27 Mass. (10 Pick.) 121; Chapman y. Garber, 46 Neb. 16, 64 N. W. 362; Keith v. Goodwin, 31 Vt. 268, 73 Am. Dec. 345. A guarantor, upon payment of the debt, can collect from a surety in the narrow sense of the word. Ante, c. VI, note 67. A guarantor and an indorser are not co- sureties. Phillips v. Plato, 42 Hun, 189. 22 Rhodes v. Sherrod, 9 Ala. 63; Klepper v. Borchsenius, 13 111. App. (13 Bradw.) 318; Drummond v. Yager, 10 111. App. 380; Pres- ton v. Gould, 64 Iowa, 44, 19 N. W. 834; Edelen v. White, 6 Bush (Ky.) 408; Smith v. Morrill, 54 Me. 48; Weston v. Chamberlain, 7 Cush. (Mass.) 404; Clapp v. Rice, 13 Gray (Mass.) 403, 74 Am. Dec. 639; Farwell v. Ensign, 66 Mich. 600, 33 N. W. 734; Dunn v. Wade, 23 Mo. 207; Paul v. Rider, 58 N. H. 119; EASTERLY v. BARBER, 324 EIGHTS AND LIABILITIES OF CO-STTRETIES. (Ch. 7 those apparently co-sureties with him that as to them he is a supplemental surety; 23 or it may be shown, likewise, that parties apparently not co-sureties are such, 24 the presumption being that those liable to the creditor in different relations, such as the maker and indorser of a promissory note, are not co- sureties. 26 Admitting oral evidence in these cases is not vary- ing a written contract, as the written contract was with the creditor, who is not a party to their contract with each other. The oral contract which they made was an independent one, taking the place of the one which the law would have implied in the absence of the express one. 28 66 N. Y. 433; Kelley v. Few, 18 Ohio, 441; Montgomery v. Page, 29 Or. 320, 44 Pac. 689; Ross v. Espy, 66 Pa. 481, 5 Am. Rep. 394; Kiel v. Choate, 92 Wis. 517, 67 N. W. 431, 53 Am. St. Rep. 936; Phillips v. Preston, 5 How. (U. S.) 278, 12 L. Ed. 152; CRAYTHORNE v. SWINBURNE, 14 Ves. 160. 23 Monson v. Drakeley, 40 Conn. 552, 16 Am. Rep. 74; Paul v. Ber- ry, 78 111. 158; Myers v. Fry, 18 111. App. (18 Bradw.) 74; Chapeze v. Young, 87 Ky. 476, 9 S. W. 399; Barry v. Ransom, 12 N. Y. 462; Oldham v. Broom, 28 Ohio St. 41; Anderson v. Peareson, 2 Bailey (S. C.) 107. 24 Rhodes v. Sherrod, 9 Ala. 63; Knopf v. Morel, 111 Ind. 570, 13 N. E. 51 ; Coolidge v. Wiggin, 62 Me. 568 ; Weston v. Chaniberlin, 7 Cush. (Mass.) 404. Indorsers may be shown to be co-sureties. Camp v. Simmons, 62 Ga. 73; Preston v. Gould, 64 Iowa, 44, 19 N. W. 834; Smith v. Morrill, 54 Me. 48; Kiel v. Choate, 92 Wis. 517, 67 N. W. 431, 53 Am. St. Rep. 936. Accommodation indorsers may be shown to be co-sureties. Stillwell v. How, 46 Mo. 589. And one accommodation indorser is not estopped to show this because he has requested the creditor to proceed against another. EASTERLY v. BAR- BER, 66 N. Y. 433. Irregular indorsers may be shown to be co- sureties. Armstrong v. Cook, 30 Ind. 22 ; Edelen v. White, 6 Bush (Ky.) 408; Dunn v. Wade, 23 Mo. 207. An acceptor and an in- dlorser may be shown to be co-sureties. Robinson v. Kilbreth, 1 Bond (U. S.) 592, Fed. Cas. No. 11,957. 2 Robertson v. Deatherage, 82 111. 511; Nurre v. Chittenden, 56 Ind. 462. 26 Water Power Co. v. Brown, 23 Kan. 676; Mansfield v. Ed- wards, 136 Mass. 15, 49 Am. Rep. 1; Barry v. Rawson, 12 N. Y. 462; Williams v. Glenn, 92 N. C. 253, 53 Am. Rep. 416; Stovall v. Adair, 9 Okl. 620, 60 Pac. 282 : Montgomery v. Page, 29 Or. 320, 44 Pac. 689; Bank v. Layne, 101 Tenn. 45, 46 S. W. 762. §§ 163-164) WHAT IS PAYMENT. 325 CONTRIBUTION. 163. Under a contract which the law implies in the absence of an express agreement in regard to the matter, any co-surety, upon payment to the creditor of more than his proportionate share of the debt due, can have con- tribution from the other co-sureties who have not paid their proportionate shares. WHAT CONSTITUTES PAYMENT. 164. Anything accepted by the creditor in satisfaction of the debt will be regarded as payment. Right of Contribution. As has been seen, the law implies a promise by the principal to reimburse his surety for all disbursements necessarily made on account of the debt. 27 The law likewise implies a promise by each surety, when there are two or more, to contribute pro- portionately to a surety who has paid more than his share of the indebtedness; 28 the rules governing the liability of the prin- 27 Ante, § 153. as Crawford v. Kirksey, 50 Ala. 590; Chrisman v. Jones, 34 Ark. 73; Paul v. Berry, 78 III. 158; Wood v. Perry, 9 Iowa, 479; Caldwell v. Roberts, 31 Ky. (1 Dana) 355; Stockmeyer v. Oertling, 38 La. Ann. 100; Goodall v. Wentworth, 20 Me. pt. 1 (2 App.) 322; Taylor v. Savage, 12 Mass. 98; Weston v. Elliott, 72 N. H. 433, 57 Atl. 336; PAULIN v. KAIGHN, 29 N. J. Law (5 Dutch.) 480 ; Toucey v. Sehell, 37 N. T. Supp. 879, 15 Misc. Rep. 350; Strickler v. Gitchel, 14 Okl. 523, 78 Pac. 94; Eakin v. Knox, 6 Rich. (S. C.) 14; McClelland v. Davis, 72 Tenn. (4 Lea) 97 ; Glasscock v. Hamilton, 62 Tex. 143 ; Foster v. Johnson, 5 Vt. 60; FLEETWOOD v. CHARNOCK (1629) Nelson, 10, Tothill, 41 ; LATER v. NELSON, 1 Vernon, 456 ; 40 Cent. Dig. col. 2328. The right of contribution exists among co-guarantors. Golsen v. Brand, 75 111. 148. And among sureties in criminal cases. The doctrine that sureties in criminal cases cannot recover indemnity from their principal, as it would deprive them of an incentive to per- form their duty— ante, § 159 (e)— does not apply when contribution is sought. Belond v. Guy, 20 Wash. 160, 54 Pac. 995. If two co-sure- ties give their joint note to the creditor, they can sue a third for contribution, although he was a surety on their joint note. Prescott v. Newell, 39 Vt. 82. A proportionate part of the debt may be set off against the claim of a co-surety to a legacy from a deceased co- 326 EIGHTS AND LIABILITIES OF CO-SURETIES. (Ch. 7 cipal to the surety, and of the sureties to each other, being very similar. The chief right which co-sureties have as to each other is this right of contribution, which arises in all cases where two or more are similarly liable for the same debt, 29 and. applies to all kinds of suretyship, voluntary or otherwise. Origin of Right of Contribution. The right of contribution was recognized originally in courts of equity only, 30 in an endeavor to do justice by equalizing a common burden ; the maxim being, "Equality is equity." 81 Later the common-law courts assumed jurisdiction S2 on the theory that the equitable principle had been recognized so long, and was known so generally, that those who became co- sureties did so in reliance on this principle, and a promise was implied in law that each co-surety should contribute his share of the debt. 83 Although it is a good defense, in a chancery proceeding, that the complainant has an adequate remedy at law, this applies to such matters only as were not originally within the jurisdiction of courts of law. Courts of. equity retain jurisdiction of every matter that was ever within their surety; the debt having been paid from the deceased co-surety's estate. BAILT'S ESTATE, 156 Pa. 634, 27 Atl. 560, 22 L. R. A. 444. 20 Fetter, Eg., p. 252. so Conover v. Hill, 76 111. 342; LANSD ALE'S ADM'R v. COX, 7 T. B. Mon. (Ky.) 401; Smith's Ex'rs v. Anderson, 18 Md. 520; Dennis v. Gillespie, 24 Miss. 581; TOBIAS v. ROGERS, 13 N. Y. 59; Wells v. Miller, 66 N. Y. 255. The old common-law idea was that, as each surety was jointly and severally bound, the obligee had his election, and, if contribution were allowed, it would be a great cause of suits. WORMLEIGHTON & HUNTER'S CASH (1613) God- bolt, 243. Contribution at law was denied, as late as the year 1801, in Carrington v. Carson, Cam. & N. Conf . R. 216. si "Wells v. Miller, 66 N. Y. 255; Norton v. Coons, 6 N. Y. 33; Van Winkle v. Johnson, 11 Or. 469, 5 Pac. 922, 50 Am. Rep. 495; PEER- ING v. WINCHELSEA, 2 Bos. & P. 270, 1 Cox, 319; Fetter, Eq. p. 252. sa Jeffries v. Ferguson, 87 Mo. 244. as LANSDALE v. COX, 7 T. B. Mon. (Ky.) 401; WARNER v. MORRISON, 3 Allen (Mass.) 566; Camp v. Bostwick, 20 Ohio St 337, 5 Am. Rep. 669; Agnew v. Bell, 4 Watts (Pa.) 31; Pile v. Mc- Coy, 99 Tenn. 367, 41 S. W. 1052; BATARD v. HA WES, 2 El. & Bl. 287. § 164) WHAT IS PAYMENT. 327 jurisdiction, although common-law courts may have assumed jurisdiction of the same matters afterwards. 3 * Hence, in mod- ern times, the right to contribution may be enforced either at law or in chancery. When Implied Promise Arises. The promise is implied by law at the instant two or more become co-sureties, 35 so that fraudulent conveyances made by one co-surety at any time after the delivery of his contract may be set aside at the suit of another who has paid the debt. 86 Express Agreement as to Contribution. It is competent for co-sureties, by express agreement among themselves, before or after the right accrues, 37 to enlarge, restrict, or take away entirely this right of contribution; 88 and such agreements may be shown, though oral. 39 Contribution Not Affected by Holding Security. The right of contribution is not affected by the fact that the co-surety seeking contribution holds security,* or that he 3* Fetter, Eq. p. 11. 3»Nally v. Long, 56 Md. 567. Inasmuch as the liability arises when the original contract was entered into, a legacy to a co-surety can be applied on the share due from him to the estate of a deceased surety, although the debt was paid from the estate after the legacy was assigned. BAILY'S ESTATE, 156 Pa. 634, 27 Atl. 560, 22 L. R. A. 444. Death does not affect the right. BRADLEY v. BTJR- WELL, 3 Denio (N. Y.) 61. See post, § 174. 36 Sargent v. Salmond, 27 Me. 539; Smith v. Rumsey, 33 Mich. 183; Wayland v. Tucker, 4 Grat. (Va.) 267, 50 Am. Dec. 76. Regard- ing similar right as to the principal, see ante, c. VI, note 23. 3T Moore v. Isley, 22 N. C. 372. 38 Curtis v. Parks, 55 Cal. 106; Hayden v. Thrasher, 18 Pla. 795; Robertson v. Deatherage, 82 111. 511; Paul v. Berry, 78 111. 158; Jones v. Letcher, 13 B. Mon. (Ky.) 363; Blake v. Cole, 22 Pick. (Mass.) 97; Cutter v. Emery, 37 N. H. 567; Apgar's Adm'r v. Hiler, 24 N. J. Law, 812; Rose v. Wollenberg, 31 Or. 269. 44 Pac. 382, 39 L. R. A. 378, 65 Am. St. Rep. 826; Patterson v. Patterson, 23 Pa. 464; Anderson v. Peareson, 2 Bailey (S. C.) 107; Hall v. Taylor (Tex. Civ. App.) 95 S. W. 755 ; Martin v. Marshall, 60 Vt. 321, 13 Atl. 420 ; Swain v. Wall, 1 Rep. Ch. 149. And see post, § 172 (e). 3» Horn v. Bray, 51 Ind. 555, 19 Am. Rep. 742; Hunt v. Chambliss, 7 Smedes & M. (Miss.) 532; Wells v. Miller, 66 N. Y. 255; Barry v. Ransom, 12 N. Y. 462; Ferrell v. Maxwell, 28 Ohio St 383, 22 Am. Rep. 393; THOMAS v. COOK, 3 M. & R. 444, 8 B. & C. 728. *o Williams v. Riehl, 127 Cal. 365, 59 Pac. 762, 78 Am. St. Rep. 60; 328 EIGHTS AND LIABILITIES OF CO-SURETIES. (Ch. 7 is seeking to enforce such security, 41 if he has not realized anything as yet therefrom; but, as soon as any proceeds of such security are available, whether before or after contribu- tion has been made, he must account for the same.* 2 Necessity of Payment. Generally, before seeking contribution, a co-surety must pay the debt, 43 or a part of it in excess of his share ; 44 but he is not required to wait until the creditor brings suit against him, 45 or even wait for a demand to be made. He may Johnson's Adm'rs v. Vaughn, 65 111. 425; Bachelder v. Fiske, 17 Mass. 464; Boeder v. Niederrneier, 112 Mich. 608, 71 N. W. 154; Mosely v. Fullerton, 59 Mo. App. 143, 1 Mo. App. Rep. 35; PAULIN v. KAIGHN, 29 N. J. Law, 480; Glasscock v. Hamilton, 62 Tex. 143. On the other hand, the fact that a co-surety is indemnified by the principal does not make him liable for any more than his proportion- ate share. Taylor v. Savage, 12 Mass. 98. That surety's remedy against the principal is not affected by the fact that the surety holds security, see ante, c. VI, note 13 ; and that creditor's right to proceed against the surety is not affected by the fact that the creditor holds security, see ante, c. V, note 12. *i Anthony v. Percifull, 8 Ark. (3 Bng.) 494. *2 Johnson's Adm'r v. Vaughn, 65 111. 425; Bachelder v. Fiske, 17 Mass. 464. And see note 116, infra. For a similar rule as between the surety and creditor, see ante, § 132 (a). *3 May v. Vann, 15 Fla. 553; Sargent v. Salmond, 27 Me. 539; People v. Duncan, 1 Johns. (N. T.) 311; Brisendine v. Martin. 23 N. C. 286; Camp v. Bostwick, 20 Ohio St. 337, 5 Am. Rep. 669; Gourdin v. Trenholm, 25 S. 0. 362; Wayland v. Tucker, 4 Grat. (Va.) 267, 50 Am. Dec. 76. 44 Backus v. Coyne, 45 Mich. 584, 8 N. W. 694. 45 stallworth v. Preslar, 34 Ala. 505; Love v. Gibson, 2 Fla. 598; Nixon v. Beard, 111 Ind. 137, 12 N. E. 131; Wood v. Perry, 9 Iowa, 479; Bond v. Bishop, 18 La. Ann. 549;. Goodall v. Wentworth, 20 Me 322; WARNER v. MORRISON, 3 Allen (Mass.) 566; Skrainka v. Rohan, 18 Mo. App. 341; BRADLEY v. BURWELL, 3 Denio (N. Y.) 61; Supplee v. Sayre, 51 Hun, 30, 3 N. Y. Supp. 627; Linn v. McClelland, 20 N. C. 596; Lucas v. Guy, 2 Bailey (S. C.) 403; Acers v. Curtis, 68 Tex. 423, 4 S. W. 551 ; Hardell v. Carroll, 90 Wis. 350. 63 N. W. 275; Pitt v. Purssord, 8 Mees. & Wels. 538. If suit has been brought, the surety may pay before trial. Machado v. Fernan- dez, 74 Cal. 362, 16 Pac. 190. Or, if judgment has been obtained, he may pay before execution is issued. Buckner's Adm'r v. Stewart, 34 Ala. 529; Briggs v. Hinton, 14 Lea (Tenn.) 233; Mason v. Pier- ron, 69 Wis. 585, 34 N. W. 921. § 164) WHAT IS PAYMENT. 329 pay without consulting his co-surety ; 4S and, if sued, he need not notify his co-surety of that fact. 47 He is not required to resort first to the principal, 48 nor to notify his co-surety that the debt has been paid, 49 nor to make any demand before bringing suit. 50 He may pay the debt before it is due, if the creditor be willing, though he cannot have contribution until the maturity of the debt, 61 unless such prior payment was at the request of the co-surety. Exoneration in Equity before Payment. The general rule that a co-surety must pay the debt before he can bring an action for contribution, like most general rules, is subject to exception. 52 As contribution is enforced in an effort to do equity, a court of equity will not require payment by a co-surety seeking contribution, where to insist upon prior payment would work a great hardship and injus- tice. 53 Suppose 10 persons were co-sureties for $50,000. It might be ruinous for one to raise this entire sum on short no- tice, or be compelled to borrow it at interest. In such a case, one co-surety, before making payment, could file a bill in equity to require the others to contribute their shares. 64 So, is Hoyt v. Tuthill, 33 Hun, 196. 47 Fisk t. Comstock, 2 Rob. (La.) 25. 48 Buckner's Adm'r v. Stewart, 34 Ala. 529; Taylor v. Reynolds, 53 Cal. 686; Sloo v. Pool, 15 111. 47; Rankin v. Collins, 50 Ind. 158; Caldwell v. Roberts, 31 Ky. (1 Dana) 355; Goodall v. Wentworth, 20 Me. 322; Mosely v. Fullerton, 59 Mo. App. 143; Smith v. Mason, 44 Neb. 610, 63 N. W. 41; Odlin v. Greenleaf, 3 N. H. 2T0; Boutin, v. Etsell, 110 Wis. 276, 85 N. W. 964. is Taylor v. Reynolds, 53 Cal. 686; Wood v. Perry, 9 Iowa, 479; Bright v. Lennon, 83 N. C. 183; Mason v. Pierron, 69 Wis. 585, 34 N. W. 921. bo Ward v. Henry, 5 Conn. 595, 13 Am. Bee. 119; Morrison v. Poyntz, 7 Dana (Ky.) 307, 32 Am. Dec. 92; Chaffee v. Jones, 36 Mass. (19 Pick.) 260; Vliet v. Wyckoff, 42 N. J. Eq. 644, 9 Atl. 679; Slier- rod v. Woodard, 15 N. C. 360, 25 Am. Dec. 714; Lucas v. Guy, 2 Bailey (S. C.) 403 ; Cage v. Foster, 13 Tenn. (5 Yerg.) 261, 26 Am. Dec. 265; Foster v. Johnson, 5 Vt. 60; 40 Cent. Dig. col. 2370. si Machado v. Fernandez, 74 Cal. 362, 16 Pac. 19. 62 OFFLEY v. JOHNSON (1584) 2 Leonard, 166, pi. 202. 63 Hyde v. Tracy, 2 Day, 492; Hodgson v. Baldwin, 65 III. 532; McKenna v. George, 2 Rich. Eq. (S. C.) 15; MORGAN v. SEYMOUR, 1 Rep. in Ch. 120. 64 WOLMERSHATJSEN V. GULLICK [1893] 2 Ch. 514. 330 EIGHTS AND LIABILITIES OF CO-SURETIES. (Ch. 7 one co-surety, before payment, can file a bill in equity against co-sureties who are seeking to escape liability by a fraudu- lent conveyance of their property. 65 What Constitutes Payment. A co-surety will be deemed to have made payment if he has given his own negotiable promissory note, 56 although not due, 57 or not paid, 58 and the maker is insolvent, 59 as this is equivalent to the payment of cash by him personally, which is reloaned to him by the creditor. Were he compelled to wait until payment of his own note, some of the co-sureties might have become insolvent. It makes no difference that the cred- itor subsequently donates the note to the maker, 60 as the cred- itor would have had the right to make him a present of money, had he paid in money. So, payment in land or other property, 61 which is received by the creditor in satisfaction of the demand, is sufficient. ) By an exercise of authority which he pretends to have, but apparently does not have. Official Bonds — Definition. An official bond is one given by an officer; but there are different meanings attached to the word "officer," as used in this definition. Officers are public or private. In some cases, "official bond" means the bond of a public officer only; in other cases, it means the bond of an officer, strictly such, whether public or private ; while, in still other cases, the word "officer" is given a very comprehensive meaning, including employes, agents, contractors, etc. The context, however, always indicates the sense in which it is used. This chapter will be devoted chiefly to public officers, as the general prin- ciples applicable to official bonds have been considered in former chapters. Public Officers. An officer of the government is a public officer, 1 though a person may be rendering service for the public according to i A notary public is a public officer. People v. Rathbone, 145 N. T. 434, 40 N. E. 395, 28 L. R. A. 384. So is an attorney at law. In re Cooper, 22 N. Y. 67; Waters v. Whittemore, 22 Barb. (N. T.) 593; Thomas v. Steele, 22 Wis. 207; White's Case, 6 Mod. 18. 368 OFFICIAL BONDS. (Ch. 9 the requirements of law, and yet not be a public officer, as he may be under contract. 2 There is no contract entered into be- tween the people and the officer who serves them ; hence the bond of a public officer is not subject to the same construction that would apply to the bond of a private officer. A public officer, upon election or appointment, takes the oath of office and enters upon the duties which the common law or statute has annexed to his office. 3 Bonds of Public Officers. There is no common-law requirement that a public officer shall give a bond, 4 though such bonds, if given, are enforced. The giving of bonds by public officers usually is regulated by statute, which frequently prescribes the form; and as there are so many various public officers, and the liabilities of their sureties depend upon the statute and the wording of the bonds, it is not within the scope of this work to treat of each office in detail. Sometimes the statute states that an office shall become va- cant if the incumbent fail to file his bond within a prescribed time ; ° but it is held that, unless the statute plainly provides that a failure to file a bond works a forfeiture of the office, it is sufficient if a bond be filed before steps are taken to de- clare the office vacant." Acts Colore Officii and Acts Virtute Officii. Sometimes a distinction has been made by the courts be- tween acts of an officer done under color of his office (colore officii) and those done by virtue of his office (virtute officii), 2 Stearns, Law of Suretyship, p. 278. s Trainor v. Board of Auditors, 89 Mich. 162, 50 N. W. 809, 15 L. R. A. 95. If the officer acts, his sureties are bound, although he did not take the oath. Town of Lyndon v. Miller, 36 Vt. 329. * Stearns, Law of Suretyship, p. 281. s State ex rel. Harris v. Tucker, 54 Ala. 205 ; People v. Perkins, 85 Oal. 509, 26 Pac. 245; In re Attorney General, 14 Fla. 277; State ex rel. Lemonnier v. Beard, 34 La. Ann. 273 ; State v. Lansing, 46 Neb. 514, 64 N. W. 1104, 35 L. R. A. 124; State v. Ruff, 4 Wash. 234, 29 Pac. 999, 16 L. R. A. 140. « Cawley v. People, 95 III. 249; Schuff v. Pflanz, 99 Ky. 97, 35 S. W. 132. § 182) WRONGFUL ACTS OF PUBLIC OFFICERS. 369 holding that his sureties were liable for the latter only ; 7 but the preponderance of authority is that sureties are liable for acts in each case. 8 Thus, if a sheriff, not having any legal authority, as sheriff, to collect taxes, were to assert that his office gave him that right and proceed to collect taxes, he would be acting under color of his office ; whereas, if he have the legal right, as sheriff, to levy an execution, but makes the levy improperly, he is acting by virtue of his office. In the first case he does an act which, under no circumstances, is connected with his office, but which he assumes to belong to his office; in the second case he performs an act which per- tains to his office, but he performs this particular act improp- erly. In the first case he assumes authority for the per- formance of acts of a different nature, from those annexed to the office which he holds; in the second case he abuses the authority which his office gives him. The sureties on the bond of the executive officer of a court, such as a sheriff, constable, 9 marshal, 10 or the coroner, 11 acting in the place of the sher- iff, would be liable if the officer were to levy upon exempt property, 12 or upon the property of a third person who is a stranger to the writ. 18 * State v. Conover, 28 N. J. Law, 224, 78 Am. Dec. 54; Gerber v. Ackley, 37 Wis. 43, 19 Am. Rep. 751. s Clancy v. Kenworthy, 74 Iowa, 740, 35 N. "W. 427, 7 Am. St. Rep. 508; Jewell v. Mills, 3 Bush (Ky.) 62; Drolesbaugh v. Hill, 64 Ohio St. 257, 60 N. E. 202; Lucas v. Locke, 11 W. Va. 81. » Inhabitants of Greenfield v. Wilson, 13 Gray (Mass.) 384 ; State, to Use of Garrett, v. Farmer, 21 Mo. 160; Brunott v. McKee, 6 Watts & S. (Pa.) 513. io Lammon v. Feusier, 111 U. S. 17, 4 Sup. Ct. 286, 28 L. Ed. 337. " Tieman v. Haw, 49 Iowa, 312. 12 Casper v. People, 6 111. App. (6 Bradw.) 28; Strunk v. Ochel- tree, 11 Iowa, 158; Hursey v. Marty, 61 Minn. 430, 63 N. W. 1090; Hobbs v. Barefoot, 104 N. C. 224, 10 S. E. 170; Cole v. Crawford, 69 Tex. 124, 5 S. W. 646. is Van Pelt v. Littler, 14 Cal. 194; Town of Norwalk v. Ireland, •68 Conn. 1, 35 Atl. 804; United States v. Hine, 3 McArthur (0. C.) 27; Wickler v. People, 68 111. App. 282; Horan v. People, 10 111. App. 21; Charles v. Haskins, 11 Iowa, 329, 77 Am. Dec. 148; Com- monwealth ex rel. Davy v. Stockton, 5 T. B. Mon. (Ky.) 192 ; Archer v. Noble, 3 Me. 418; Tracy v. Goodwin, 5 Allen (Mass.) 409; People v. Mersereau, 74 Mich. 687, 42 N. W. 153; Hursey v. Marty, 61 Minn. 430, 63 N. W. 1090; State, to Use of Gates, v. Fitzpatrick, 64 Mo. Childs' Suretyship — 24 370 OFFICIAL BONDS. (Ch. 9 ERRORS OF EXECUTIVE OFFICERS. 183. Sureties on the bond of a public officer are liable for de- faults arising from his want of eare or lack of judg- ment. ERRORS OF JUDICIAL OFFICERS. 184. Sureties on the bond of a judicial officer are not liable for his errors in judgment committed in a matter within his jurisdiction; but they are liable for his de- faults in regard to ministerial acts. Executive Officers. The liability of sureties is not affected by the intention with which the officer acts ; 14 they being liable for his mis- takes, although he thought he was doing his duty. When a person accepts a public office, he holds himself out as being capable of properly performing the duties annexed to it, and his sureties are liable for his defaults, whether arising from lack of care or from lack of judgment 15 — whether arising from a failure to perform a duty, 16 or from the performance of an unlawful act willfully 17 or a lawful act improperly. 18 185; Turner v. Killian, 12 Neb. 580, 12 N. W. 101; dimming v. Brown, 43 N. Y. 514; People v. Schuyler, 4 N. Y. 173; State v. Jennings, 4 Ohio St 418; Carmacb v. Commonwealth, 5 Bin. (Pa.) 184; Holli- man v. Carroll, 27 Tex. 23, 84 Am. Dec. 606; Sangster v. Common- wealth, 17 Grat. (Va.) 124; Marquis v. Willard, 12 Wash. 528, 41 Pac. 889, 50 Am. St. Rep. 906. i* Heidt v. Minor, 89 Cal. 115, 26 Pac. 627; United States v. Hine, 3 McArthur (D. C.) 27; Jewell v. Mills, 3 Bush (Ky.) 62; Weintz v. Kramer, 44 La. Ann. 35, 10 South. 416; Turner v. Killian, 12 Neb. 580, 12 N. W. 101; State, to Use of Story, v. Jennings, 4 Ohio St. 419; Holliman v. Carroll, 27 Tex. 23, 84 Am. Dec. 606; Sangster v. Commonwealth, 17 Grat. (Va.) 124. is Stearns, Law of Suretyship, p. 304. ie Governor v. Pleasants, 4 Pike (Ark.) 193; People v. Smith, 123 Cal. 70, 55 Pac. 765; Palmer v. Pettingill, 6 Idaho, 346, 55 Pac. 653; Governor v. Dodd, 81 111. 162; Babka v. People, 73 111. App. 17 See note 17 on following page, is See note 18 on following page. § 184) ERRORS BT PUBLIC OFFICERS. 371 Judicial Officers. Sureties on the bond of a judicial officer, such as a judge or justice of the peace, are liable for his ministerial acts only. 19 A ministerial act is one which it is the duty of a person to per- form in a manner prescribed by authority, without regard to his judgment as to its propriety. Thus, it is the duty of a justice of the peace to issue execution when required by law, and he is not allowed to use his discretion as to its propriety. Should he fail to issue the execution, his sureties would be liable. 20 However, if he has jurisdiction of a case, and he renders a judgment therein, his sureties cannot be held liable, however erroneous his decision is. 21 While the sureties for a judge are not liable for his judicial acts which are properly within his discretion, they would be liable for an exercise of judicial powers in matters which 246; Waymire v. State, 80 Ind. 67; Morgan v. Long, 29 Iowa, 434; COMMONWEALTH v. STBATON, 7 J. J. Marsh. (Ky.) 90; Ander- son v. Joiiett, 14 La. Ann. 624; Rosenthal v. Davenport, 38 Minn. 543, 38 N. W. 618; Brown v. Lester, 13 Smedes & M. (Miss.) 392; Alexander v. Eberhardt, 35 Mo. 475; Maddox v. Rader, 9 Mont. 126, 22 Pac. 386; McNee v. Sewell, 14 Neb. 532, 16 N. W. 827; Sloan v. Case, 10 Wend. (N. Y.) 370, 25 Am. Dec. 569; Carpenter v. Doody, 1 Hilt. (N. T.) 465; Badbam v. Jones, 64 N. C. 655; Habersham v. Sears, 11 Or. 431, 5 Pac. 208, 50 Am. Rep. 481; Shannon v. Com- monwealth, 8 Serg. & R. (Pa.) 444; Strain v. Babb, 30 S. C. 342, 9 S. E. 271, 14 Am. St. Rep. 905 ; O'Bannon v. Saunders, 24 Grat. (Va.) 138 ; Commonwealth v. Fry, 4 W. Va. 721. Sickness is not an excuse for failure to perform a duty. Preudenstein v. McNeir, 81 111. 208. " Scotten v. Pegan, 62 Iowa, 236, 17 N. W. 491 ; Rocherean v. Jones, 29 La. Ann. 82. is Spain v. Clements, 63 Ga. 786; Billings v. Lafferty, 31 111. 318; Field & Co. v. Wallace, 89 Iowa, 597, 57 N. W. 303; Lescouzeve v. Ducatel, 18 La. Ann. 470; Carter v. Duggan, 144 Mass. 32, 10 N. E. 486; People ex rel. Curtiss v. Colby, 39 Mich. 456; Barnard v. Schuler (Minn.) 110 N. W. 966; Brock v. Hopkins, 5 Neb. 231; Top- ping v. Windley, 99 N. C. 4, 5 S. E. 14; Van Etten v. Common- wealth, 102 Pa. 596. i»McLendon v. Mortgage Co., 119 Ala. 518, 24 South. 721; Brock- ett v. Martin, 11 Kan. 378 ; Larson v. Kelly, 64 Minn. 51, 66 N. W. 130; Head v. Levy, 52 Neb. 456, 72 N. W. 583; Place v. Taylor, 22 Ohio St. 317. 20 Stearns, Law of Suretyship, p. 332. 2i McGrew v. Governor, 19 Ala. 89. 372 OFFICIAL BONDS. (Oh. 9 are not within his jurisdiction, as such acts are void, and, if damage results, he becomes a trespasser. 22 Generally, the sureties on the bond of a judicial officer are not liable if, originally having jurisdiction of a case, he later acts in excess thereof. Thus, if a judge, in a criminal case properly before him, should impose a sentence greater than the law authorized, he would not be liable, 23 though he might act maliciously; 2 * nor, of course, would his sureties be liable. OFFICER AS AGENT OF THE PUBLIC. 185. Sureties for a public officer are not liable for his con- tracts made as agent of the state or municipality which he represents. OFFICER'S PRIVATE TRANSACTIONS. 186. Sureties for u, public officer are not liable for his de- faults in transactions with him as an individual, al- though the transaction was entered into to assist him in the performance of his official duties. Officer as Public Agent. The sureties of a public officer undertake to be responsible for acts in an official capacity only. It frequently happens that he acts as agent of the public in making contracts for the performance of some service, such as the printing of notices. When he thus acts, he does not incur a personal liability, any more than any agent does. 26 If he acts within the scope of his authority, he binds his principal only. 26 22Bigelow v. Stearns, 19 Johns. (N. Y.) 39, 10 Am. Dec. 189; Woodward v. Paine, 15 Johns. (N. T.) 493; Truesdell v. Combs, 33 Ohio St. 186; Miller v. Grice, 2 RJch. Law (S. C.) 27, 44 Am. Dec. 271. 23 Doepfner v. State, 36 Ind. Ill; Lange v. Benedict, 73 N. Y. 12, 29 Am. Rep. 80. 2* Bradley v. Fisher, 13 Wall. (U. S.) 335, 20 L. Ed. 646. 26 Stearns, Law of Suretyship, p. 309. 26 Tiffany, Agency, p. 330. § 187) DEPUTIES. 373 Private Transactions by Officers. A person, by becoming a public officer, does not lose his power to act as a private individual, and his sureties cannot be held liable for his contracts entered into as a private citizen, although he may have entered into the contract with special reference to his official duties. Thus, if a sheriff should hire a conveyance to enable him to perform his .official duties, this would be a private contract, and his sureties would not be liable for his failure to pay. Persons contracting with an offi- cer under such circumstances must look to him individually, and not to him in his official capacity. 27 DEPUTIES. 18?. The sureties on the bond of a public officer must answer for the defaults of his deputy, committed in his offi- cial capacity. If the law authorizes a public officer to appoint deputies, his sureties will be liable for the defaults of such deputies; for a deputy is one who acts for another, and the act of the deputy is the act of the officer, 28 provided the act is one which the law requires him to perform in his official capacity, and the sureties are liable, though there is no express condition in the bond to that effect. An assistant, clerk, or employe is not a deputy, and does not perform official acts, although coming within the broad meaning sometimes given to the word "officer." 20 2' Brown v. Phipps, 14 Miss. (6 Smedes & M.) 51; Commonwealth v. Swope, 45 Pa. 535, 84 Am. Dec. 518; Allen v. Ramey, 4 Strob. (S. C.) 30. as Thomas v. Kinkead, 55 Ark. 503, 18 S. W. 854, 15 L. E. A. 558, 29 Am. St. Rep. 68 ; Crawford: v. Howard, 9 Ga. 314 ; Cash v. Peo- ple, 32 111. App. 250; Yount v. Carney, 91 Iowa, 559, 60 N. W. 114; Johnson v. Williams, 111 Ky. 289, 63 S. W. 759, 54 L. R. A. 220, 98 Am. St. Rep. 416 ; Brown v. Weaver, 76 Miss. 7, 23 South. 388, 42 L. R. A. 423, 71 Am. St Rep. 512 ; Todd v. Jackson, 3 Humph. (Tenn.) 398 ; Verratt v. McAulay, 50 Ont. 313. 20 United States v. Hartwell, 6 Wall. (U. S.) 385, 18 L. Ed. 830. 374 OFFICIAL BONDS. (Ch. 9 LOSS OF FUNDS. 188. Sureties on the bond of a public officer Having tie cus- tody of funds are liable for a loss thereof resulting without his fault or negligence; but sureties on the bond of a private officer -would not be liable under such circumstances. Where an officer has the custody of funds, and a loss re- sults without any fault or negligence on his part, a distinction is made between public and private officers ; the sureties on the bond of the former being held liable, 30 though it is other- wise as to the sureties for a private officer. 31 The reason for the distinction seems to be based upon the ground of public policy. 32 In the case of a loss of funds by a private officer, there is always some one who is interested enough to investigate, and any fraud would be discovered; but, in the case of a public officer, it would afford too much opportunity for collusion, 33 and the protection of the public requires the adoption of a strict and rigid rule, to be applied in all cases, whether the loss is without the fault or negligence of the officer or not. The sureties on the bond of a public officer are liable in every instance for losses arising from fire, 3 * theft, 35 robbery, so Ramsey v. People, 97 111. App. 283; Halbert v. State, 22 Ind. 125; Taylor Dist. Tp. v. Morton, 37 Iowa, 550; State ex rel. Town- ship v. Powell, 67 Mo. 395, 29 Am. Rep. 512; State ex rel. Board of Com'rs of Bladen County v. Clarke, 73 N. C. 255; Boyden v. United States, 13 Wall. (U. S.) 17, 20 L. Ed. 527. 31 Planters' & Merchants' Bank of Huntsville v. Hill, 1 Stew. (Ala.) 201, 18 Am. Dec. 39; Chicago, B. & Q. R. R. Co. v. Bartlett, 120 111. 603, 11 N. E. 867; Id., 20 111. App. 96; People v. Faulkner, 107 N. T. 477, 14 N. E. 415; Baltimore & O. R. Co. v. Jackson (Pa.) 3 Atl. 100. 32 Thompson v. Board of Trustees, 30 111. 99. sa United States v. Prescott, 3 How. (U. S.) 578, 11 L. Ed. 734. si Union Dist. Tp. v. Smith, 39 Iowa, 9, 18 Am. Rep. 39. ssMorbeck v. State, 28 Ind. 86; State v. Lanier, 31 La. Ann. 423; Inhabitants of Hancock v. Hazzard, 12 Cush. (Mass.) 112, 59 Am. Dec. 171; Redwood County v. Tower, 2S Minn. 45, 8 N. W. 907; Muzzy v. Shattuck, 1 Denio (N. Y.) 233; State, to Use of Wyandot County, v. Harper, 6 Ohio St. 607, 67 Am. Dec. 363; Commonwealth § 188) LOSS OF FUNDS. 375 or burglary, or from the failure of a bank in which the funds were deposited. 36 It does not make any difference that the officer had every reason to believe that the bank was solvent,* 7 and that he did not have any safe place in which to keep the funds; 38 and, in the case of a loss arising from burglary, it is not a defense that the officer was furnished with a safe and a building, which he was required to use. 89 v. Comly, 3 Pa. 372; United States v. Morgan, 11 Haw. (U. S.) 154, 13 L. Ed. 643. as Thomssen v. Hall County, 63 Neb. 777, 89 N. W. 389, 57 L. R. A. 303. a? Inglis v. State, 61 Ind. 212 ; Rose v. Douglass Tp., 52 Kan. 451, 34 Pac. 1046, 39 Am. St. Rep. 354; Perley v. Muskegon County, 32 Mich. 132, 20 Am. Rep. 637; Board of Education of Village of Pine Island v. Jewell, 44 Minn. 427, 46 N. W. 914, 20 Am. St. Rep. 586; Griffin v. Levee Cbm'rs, 71 Miss. 767, 15 South. 107; State ex rel. Mississippi County v. Moore, 74 Mo. 413, 41 Am. Rep. 322; State v. Hill, 47 Neb. 456, 66 N. W. 541; State v. Nevin, 19 Nev. 162, 7 Pac. 650, 3 Am. St. Rep. 873; Tillinghast v. Merrill, 151 N. Y. 135, 45 N. E. 375, 34 L. R. A. 678, 56 Am. St. Rep. 612; Havens v. Lathene, 75 N. C. 505; Nason v. Poor Directors, 126 Pa. 445, 17 Atl. 616; Wilson v. Wichita County, 67 Tex. 647, 4 S. W. 67; Fail-child v. Hedges, 14 Wash. 117, 44 Pac. 125, 31 L. R. A 851; Supervisors of Omro v. Kaime, 39 Wis. 468. as Lowry v. Polk County, 51 Iowa, 50, 49 N. W. 1049, 33 Am. Rep. 114. 8 9 United States v. Pordyce (D. C.) 122 Fed. 962. 376 JUDICIAL BONDS. (Ch. 10 CHAPTER X. JUDICIAL BONDS. 189. Executors' and Administrators' Bonds. 190. Guardians' Bonds. 191. Appeal Bonds. 192. Attachment Bonds. 193. Injunction Bonds. 194. Replevin Bonds. BONDS OF PERSONAL REPRESENTATIVES. 189. Sureties on the bond of an executor or of an adminis- trator are liable for the funds of the estate to cred- itors, legatees, distributees, and other interested per- sons; but they cannot be held for an nnliquidated claim. Judicial Bonds — Definition. A judicial bond or undertaking is one given in the course of legal proceedings. In some respects, personal representa- tives and guardians resemble public officers; but, as they perform their duties under the supervision of a court, it seems more proper to treat their bonds as judicial, rather than as official, ones. 1 Only a few of the more important judicial bonds will be considered, and very briefly; an extensive treatment thereof being beyond the scope of this work. Defaults as to Payment by Personal Representatives. If the amount payable by an administrator or executor is definite and payable by a certain time, the sureties on his bond are liable if he fail to make payment, although there has not been any order of court directing payment ; 2 but if the claim is disputed, or the amount unascertained, the sureties i Stearns, Law of Suretyship, p. 415. 2 Gould v. Steyer, 75 Ind. 50. As to the liability of sureties on bonds of executors and administrators, see 22 Cent. Dig. col. 3340. § 189) executors' and administrators' bonds. 377 cannot be held liable until there has been a specific order of court directing payment. As the subsequent income from real estate which the de- cedent owned at the time of his death belongs to the' heirs, the sureties of an administrator are not liable therefor, though collected by him ; s nor are sureties liable for the expenses of administration, 4 the principal being personally liable therefor. Defaults Through Negligence or Error. If funds are lost through the negligence or bad judgment of an administrator, his sureties are liable ; B and, if he be a debtor to the estate, his sureties will be liable for the amount oi his debt," unless he be insolvent. 7 Likewise, the sureties are liable upon his failure to pay claims which have been al- lowed, or which, under a statute, it is his duty to pay. 8 s People v. Huffman, 182 111. 390, 55 N. B. 981 ; Keversing 78 111. App. 345 ; Young v. People, 35 111. App. 363 ; State v. Barrett, 121 Ind. 92, 22 N. E. 969 ; Smith v. Bland, 46 Ky. 21 ; Robinson v. Millard, 133 Mass. 236 ; Douglass v. Mayor, 56 How. Prac. (N. T.) 178 ; Common- wealth v. Gibson, 8 Watts (Pa.) 214; Reed v. Commonwealth, 11 Serg. & R. (Pa.) 441 ; Hutcherson v. Pigg, 8 Grat. (Va.) 220. * Taylor v. Mygatt, 26 Conn. 184. e Lee v. Lee, 67 Ala. 406; Butler v. Sisson, 49 Conn. 580; Johnston v. Maples, 49 111. 101; Richardson v. Boynton, 12 Allen (Mass.) 138,' 90 Am. Dec. 141; Judge of Probate v. Mathes, 60 N. H. 433; Baer's Appeal, 127 Pa. 360, 18 Atl. 1, 4 L. R. A. 609; Murray v. Luna, 86 Tenn. (2 Pickle) 326, 6 S. W. 603; Lyon v. Osgood, 58 Vt. 707, 7 Atl. 5; Lacy v. Stamper, 27 Grat. (Va.) 42. Mismanagement and waste of an estate is called a devastavit. It may be willful, as in the. case of an improper release of claims due the estate, or a con- version of the assets ; it may be by doing a proper act improperly, as paying claims before they are due; or it may be by neglect, as a failue to collect claims, or to protect perishable property. e Wright v. Lang, 66 Ala. 389; Kirby v. Moore (Ky.) 99 S. W. 1156; Kealhofer v. Bmmert, 79 Md. 248, 29 Atl. 68; Winship v. Bass, 12 Mass. 199; Judge of Probate v. Sulloway, 68 N. H. 511, 44 Atl. 720, 49 L. R. A. 347, 73 Am. St. Rep. 619; In re Consalus, 95 N. Y. 340; Soverhill v. Suydam, 59 N. Y. 140; McGaughey v. Jacoby, 54 Ohio St. 487, 44 N. E. 231; Piper's Estate, 15 Pa. 533; Twitty v. Houser, 7 S. C. 153. t State v. Gregory, 119 Ind. 503, 22 N. E. 1 ; Harker v. Irick, 10 N. J. Eq. 269; Baucus v. Barr, 45 Hun (N. Y.) 582, affirmed 107 N. Y. 624, 13 N. E. 939; Spurlock v. Earles, 67 Tenn. 437; Lyon v. Osgood, 58 Vt. 707, 7 Atl. 5. s Commonwealth v. Longenecker, 1 Cb.es. Co. Rep. (Pa.) 202. 378 JUDICIAL BONDS. (Oh. 10 Suit on Bond. An action on the bond 9 can be brought by creditors, dis- tributees, legatees, or other interested persons, 10 a judgment against the principal by a court of competent jurisdiction be- ing conclusive against as well as in favor of his sureties, un- less 'it has been obtained by fraud; and it is not any defense to the sureties that a decree or judgment was entered upon a settlement of the principal's accounts without notice to them. 11 BONDS OF GUARDIANS. 190. The sureties on the bond of a guardian are liable for all funds of the ward received by the guardian prior to the maturity of the ward. The liability of the sureties on the bond of a guardian 12 resembles, in many respects, that of sureties on the bond of an administrator. They are liable for all of the property of the ward in the possession of the guardian, regardless of the source from which he received it; 13 for property received before the bond was given; 14 for the indebtedness of the » A prior administrator and his successor cannot be joined as defendants. Governor, to Use of Evans, v. Hays, 3 Mo. 434. It is not a good defense that the principal was advised in good faith by his attorney to do the wrongful act. Bourne v. Stevenson, 58 Me. 499. io State v. Scott, 12 Ind. 529; Rawson v. Piper, 34 Me. 98; Good- kin v. Hoit, 3 N. H. 392; Boyle v. St. John, 28 Hun (N. Y.) 454. ii Martin v. Tally, 72 Ala. 23; George v. Elms, 46 Ark. 260; Ir- win v. Backus, 25 Cal. 214, 85 Am. Dec. 125; Nevitt v. Woodbura, 160 111. 203, 43 N. E. 385, 52 Am. St. Rep. 315; McDonald v. People, 222 111. 325, 78 N. E. 609; Clark v. Fredenburg, 43 Mich. 263, 5 N. W. 306; State v. Crensbaner, 68 Mo. 254; Ordinary v. Kershaw, 14 N. J. Eq. 527; DEOBOLD v. OPPERMANN, 111 N. Y. 531, 19 N. E. 94, 2 L. R. A. 644, 7 Am. St. Rep. 760; Kelly v. West, 80 N. Y. 139; Slagle v. Entrekin, 44 Ohio St. 637, 10 N. E. 678; Stovall v. Banks, 10 Wall. (U. S.) 583, 19 L. Ed. 1036. 12 As to the liability of sureties on the bond of a guardian, see 25 Cent. Dig. col. 810. is Alston v. Alston, 34 Ala. 15; Warwick v. State, 5 Ind. 350; Carr v. Askew, 94 N. C. 194; Gray v. Brown, 1 Rich. Law (S. C.) 351. i* Merrells v. Phelps, 34 Conn. 109; Fogarty v. Ream, 100 111. 366; § 191) APPEAL BONDS. 379 guardian to the ward; 1B for property received from another state ; le and for property which the guardian might have se- cured by ordinary diligence. 17 They are liable, likewise, for losses resulting from lack of care in making investments; 18 but they are not liable for money received by the guardian after the ward attains his majority, 19 though, as to property received prior thereto, their liability continues until the guardian has made a proper settle- ment with the ward. 20 APPEAL BONDS. 191. If, upon appeal, a judgment be affirmed, the sureties on the appeal bond become liable therefor. Before the party against whom a judgment has been entered in a lower court can have the law and the facts or the law alone reviewed in a higher court, or have the case retried there, 21 he must give a bond to protect the successful party against any injury which the latter may sustain by reason of the delay forced upon him in satisfying his judgment. This bond is Bockenstedt v. Perkins, 73 Iowa, 23, 34 N. W. 488, 5 Am. St. Rep. 652; State v. Bilby, 50 Mo. App. 162. is Johnson v. Hicks, 97 Ky. 116, 30 S. W. 3; Mattoon v. Cowing, 79 Mass. (13 Gray) 387; State v. Hull, 53 Miss. 626; O'Neall v. Her- bert, Dud. Bq. (S. O.) 30; Sargent v. Wallis, 67 Tex. 483, 3 S. W. 721. Sureties are not liable for work performed for the guardian by the ward, as the ward is not entitled to his wages. Phillips v. Davis, 34 Tenn. (2 Sneed) 520, 62 Am. Dee. 472. ie McDonald v. Meadows, 58 Ky. (1 Mete.) 507; State v. Hull, 53 Miss. 626; Pearson v. Dailey, 75 Tenn. (7 Lea) 674. it McKim v. Morse, 130 Mass. 439; Ames v. Williams, 74 Miss. 404, 20 South. 877. is Lee y. Lee, 67 Ala. 406; Richardson v. Boynton, 12 Allen (Mass.) 138, 90 Am. Dec. 141. i9 Chapin v. Livermore, 13 Gray (Mass.) 561; Commonwealth v. Pray, 125 Pa. 542, 17 Atl. 450; Shelton v. Smith, 62 Tenn. 82. " 20 Gillett v. Wiley, 126 111. 310, 19 N. E. 287, 9 Am. St. Rep. 587; Carter v. Tice, 120 111. 277, 11 N. E. 529; Parr v. State, 71 Md. 220, 17 Atl. 1020; Douglass v. Ferris, 138 N. Y. 192, 33 N. E. 1041, 34 Am. St. Rep. 435 ; Newton v. Hammond, 38 Ohio St. 430. 2i See Stearns, Law of Suretyship, p. 352, note 9, as to the dis- tinction between an appeal and a writ of error. 380 JUDICIAL BONDS. (Ch. 10 known as an "appeal bond," and, after reciting the action of the lower court, contains a provision to pay the amount of the judgment, if affirmed in the upper court. 22 If the party appealing fails to perfect his appeal, or it is dismissed for lack of 'prosecution, the sureties are liable, 23 unless the failure has not arisen through the fault of the ap- pellant, as would be the case if he were enjoined from prose- cuting the appeal. 24 An affirmance as to one or more of the parties, but not as to all, makes the sureties liable; 25 and, if the bond is condi- tioned to pay "whatever judgment may be rendered" in the appellate court, the sureties will be liable for a less or a greater amount than the judgment appealed from. 26 If the unsuc- 22 As to the liability of sureties on appeal bonds, see 3 Cent. Dig. col. 2843. zs Chase v. Beraud, 29 Cal. 138; Long v. Sullivan, 21 Colo. 109, 40 Pac. 359; Sutherland v. Phelps, 22 111. 92; Coon v. McCormack, 69 Iowa, 539, 29 N. W. 455 ; Simonds v. Heinn, 22 La. Ann. 296 ; Com- monwealth v. Green, 138 Mass. 200; Flannagan v. Cleveland, 44 Neb. 58, 62 N. W. 297; Teel v. Tice, 14 N. J. Law, 444; Blair v. San- born, 82 Tex. 686, 18 S. W. 159. It is otherwise where the appel- lant dies, and the appellee does not prosecute the suit Nelson v. Anderson, 2 Call (Va.) 286. 24 Planters' & Miners' Bank v. Hudgins, 84 Ga. 108, 10 S. E. 501. 25 Porter v. Singleton, 28 Ark. 483; Wood v. Orford, 56 Cal. 157; Lewis v. Maulden, 93 Ga. 758, 21 S. E. 147; Ives v. Hulce, 17 111. App. 35; Lutt v. Sterrett, 26 Kan. 561; Gilpin v. Hord, 85 Ky. 213, 3 S. W. 143; Hood v. Mathis, 21 Mo. 308; Johnson v. Reed, 47 Neb. 322, 66 N. W. 405 ; Goodwin v. Bunzl, 102 N. T. 224. 6 N. E. 399 ; Sea- cord v. Morgan, *42 N. T. 636 ; Brown v. Conner, 32 N. C. 75 ; Alber v. Proelich, 39 Ohio St. 245, overruling Lang v. Pike, 27 Ohio St. 498; McFarlane v. Howell, 91 Tex. 218, 42 S. W. 853 ; Vandyke v. Weil, 18 Wis. 277. See, also, Cook v. Ligon, 54 Miss. 625. 2« Harding v. Kuessner, 172 111. 125, 49 N. E. 1001; Cooper v. Rhodes, 30 La. Ann. 533 ; Masser v. Strickland, 17 Serg. & R. (Pa.) 354, 17 Am. Dec. 668; Hare v. Marsh, 61 Wis. 435, 21 N. W. 267, 50 Am. Rep. 141; Hopkins v. Orr, 124 U. S. 510, 8 Sup. Ct. 590, 31 L. Ed. 523. If the surety undertakes to pay any judgment rendered against the principal, he is liable, although another party is added in the appellate court and judgment is rendered against both. Helt v. Whittier, 31 Ohio St. 475. If the bond names a definite amount, an increase of the claim will discharge the sureties, if they have not consented thereto. Willis v. Crooker, 1 Pick. (Mass.) 204; Sage v. Strong, 40 Wis. 575. § 192) ATTACHMENT BONDS. 381 cessful party on appeal carries the case to a still higher court, the sureties on all prior appeal bonds remain liable to the ap- pellee 27 and to all prior parties who have not participated in the appeal. 28 While the bond will be invalid if it be materially defective, 29 unimportant defects will not be considered. 80 ATTACHMENT BONDS. 192. The sureties on an attachment bond are liable for all direct damage suffered by the defendant if the writ was issued improperly. Attachment of Statutory Origin. As the plaintiff, at common law, was required to await the recovery of a judgment before he could interfere with the property of the defendant, this left him practically remediless if the defendant were out of the jurisdiction, or if the de- fendant, upon learning that a suit had been started against him, concealed his property, or if he became insolvent pending the action. To remedy this defect statutes have been enacted allowing the plaintiff, in certain cases, to have the property of the defendant seized at the time the suit is instituted and held to await the outcome of the suit. In order to prevent 27 Shannon v. Dodge, 18 Colo. 164, 32 Pac. 61; Becker v. People, 164 111. 267, 45 N. E. 500; Ooonradt v. Campbell, 29 Kan. 391; Boaz v. Milliken, 4 Ky. Law Rep. 700; Jordan v. Wollen Co., 106 Mass. 571; CHESTER v. BRODERICK, 131 N. Y. 549, 30 N. E. 507: Church v. Simmons, 83 N. Y. 261; Dolby v. Jones, 13 N. C. 109; Moore v. Lassiter, 16 Lea (Tenn.) 630; Babbitt v. Finn, 101 U. S. 7, 25 L. Ed. 820. While a surety is discharged on reversal of the judgment appealed from, his liability revives if the reversal be set aside on further appeal. Robinson v. Plimpton, 25 N. T. 484; Smith v. Crouse, 24 Barb. (N. T.) 433. See, also, Pearl v. Wellman, 11 111. 352. Contra, Nofsinger v. Hartnett, 84 Mo. 549. 28 Ante, c. V, note 639. 29 Block v. Blum, 33 111. App. 643; Tucker v. State, 11 Md. 322; Waller v. Pittman, 1 N. C. 324. so Railsback v. Greve, 58 Ind. 72; Handy v. Land Co., 59 Kan. 395, 53 Pac. 67; Pray v. Wasdell, 146 Mass. 324, 16 N. B. 266; Wile v. Koch, 54 Ohio St. 608, 44 N. E. 236; In re Gleeson's Estate. 192 Pa. 279, 43 Atl. 1032, 73 Am. St. Rep. 808. 382 JUDICIAL BONDS. (Ch. 10 injury to the defendant, the plaintiff is required to give a bond before the defendant's property can be taken ; the con- dition of the bond being, generally, to pay the defendant such damages as he may have sustained by reason of the attachment if wrongful. 31 As attachment is purely statutory, the provi- sions in attachment bonds vary in the different states. 32 Sure- ties on an attachment bond are liable, although not given un- til after the attachment is levied ; 33 and defects in form, 34 or irregularities in execution, 85 will not release them. Forthcoming Bonds and Bonds to Dissolve Attachment. After the attachment has been made, the defendant, desir- ing to recover possession of his property, can obtain a release thereof by giving what is designated as a "forthcoming bond," conditioned for the return of the property if the suit be decided against him, or by giving a bond to discharge the attachment, conditioned for the payment of the plaintiff's judgment, if any be obtained. In some states, the defendant's forthcoming bond is conditioned for the return of the property or the payment of its value. The sureties on a forthcoming bond will not be liable if the attachment is discharged, 36 and, if the plaintiff obtain a judgment, they will be released by a tender of the identical property taken ; 37 but it is not sufficient to tell where the property is, with instructions to go and take it. 38 Wrongful Attachment. If the attachment be wrongful, the sureties are liable, al- though the plaintiff may have acted in good faith. 39 The at- 3i Hopewell v. McGrew, 50 Neb. 789, 70 N. W. 397. And see, fur- ther, in regard to attachment, Stearns, Law of Suretyship, p. 390. 32 As to the liability, generally, of sureties on attachment bonds, see 5 Cent. Dig. col. 1211. as Sumpter v. "Wilson, 1 Ind. 144. si Ripley v. Gear, 58 Iowa, 460, 12 N. W. 480; Hibbs v. Blair, 14 Pa. 413. as Gibbs v. Johnson, 63 Mich. 671, 30 N. W. 343; Ward v. Whit- ney, 8 N. Y. 442. 3« Hamilton v. Bell, 123 Cal. 93, 55 Pac. 758; Gass v. Williams, 46 Ind. 253 ; Alexander v. Jacoby, 23 Ohio St. 358 ; Fernau v. Butcher, 113 Pa. 292, 6 Atl. 67. 87 Pogue v. Joyner, 7 Ark. 462; Jones v. Jones, 38 Mo. 429. 38 Chapline v. Robertson, 44 Ark. 202. The officer, however, may waive delivery. Hansford v. Perrin, 6 B. Mon. (Ky.) 595. 3 9 Pollock v. Gantt, 69 Ala. 373, 44 Am. Rep. 519; Elder v. Kutner, § 192) ATTACHMENT BONDS. 383 tachment may be wrongful, although the plaintiff's claim is a valid one, as there may not be any justifiable reason for seizing the defendant's property before judgment has been recov- ered." Damages. The damages allowed the defendant will be such as are the direct result of the wrongful attachment. Speculative dam- age, 41 such as loss resulting from his absence from business, 42 will be excluded. Recovery may be had for loss resulting from an injury to the property, 43 or from being deprived of its use, 44 and for reasonable expenses to which the defendant has been put in securing a dissolution of the attachment, such as attorney fees, 46 traveling expenses, hotel bills, 46 and the value of his time 47 while attending the hearing. 97 Oal. 490, 32 Pac. 563; Churchill v. Abraham, 22 111. 456; Mc- Daniel v. Gardner, 34 La. Arm. 341; Carothers v. Mcllhenny Co., 63 Tex. 138. Contra, Charles City Plow & Mfg. Co. v. Jones, 71 Iowa, 234, 32 N. W. 280. 40 Kerr v. Reece, 27 Kan. 469; Tynberg v. Cohen, 76 Tex. 409, 13 S. W. 315; Offterdinger v. Ford, 92 Va. 636, 24 S. B. 246. « Goodbar v. Lindsley, 51 Ark. 380, 11 S. W. 577, 14 Am. St. Rep. 54; Oberne v. Gaylord, 13 111. App. 30; Campbell v. Chamberlain, 10 Iowa, 337; Pettit v. Mercer, 8 B. Mon. (Ky.) 51; Seattle Crockery Co. v. Haley, 6 Wash. 302, 33 Pac. 650, 36 Am. St. Rep. 156. 42 Higgins v. Mansfield, 62 Ala. 267. 43 Prankel v. Stern, 44 Cal. 168 ; Hoge v. Norton, 22 Kan. 374. 44 Boatwright v. Stewart, 37 Ark. 614; Hurd v. Barnhart, 53 Cal. 97; Green Fruit Co. v. Pate & Co., 99 Ga. 60, 24 S. E. 455; State v. McKeon, 25 Mo. App. 667. 45 Green Fruit Co. v. Pate & Co., 99 Ga. 60, 24 S. B. 455; Damron v. Sweetser, 16 111. App. 339; Trapnall v. McAfee, 60 Ky. 34, 77 Am. Dec. 152; Adams v. Gomila, 37 La. Ann. 479; Swift v. Plessner, 39 Mich. 178; State v. Gage, 52 Mo. App. 464; Raymond Bros. v. Green, 12 Neb. 215, 10 N. W. 709, 41 Am. Rep. 763; Northrup v. Garrett, 17 Hun (N. Y.) 497. 46 Damron v. Sweetser, 16 111. App. 339; State v. Shobe, 23 Mo. App. 474. 4T Higgins v. Mansfield, 62 Ala. 267; Sanford v. Willetts, 29 Kan. 647. 384 JUDICIAL BONDS. (Ch. 10 INJUNCTION BONDS. 193. When it is determined finally that an injunction ought not to have been granted, the sureties upon the in- junction bond are liable for damages resulting direct- ly from the issuance of the injunction. Before a court will issue a writ of injunction requiring a person to do or to abstain from doing some act, the party de- siring the writ must give a bond, with sureties, to indemnify the defendant for any loss which may be sustained by him if it be found that the injunction has been granted improperly. 48 Damages. Until it has been determined finally that an injunction should not have been granted, the sureties are not liable in damages. 49 Recovery cannot be had for indirect damage ; 00 nor will the defendant be allowed damages for mental strain and anxiety. 51 If the defendant deny that he had any intention of doing the act prohibited by the injunction, he has not suffered any injury, and is not entitled to any damages. 52 Thus, where the de- fendant was enjoined from negotiating. a note, and he answer- ed that he did not intend to do so, the sureties upon the in- junction bond were not liable. 53 The defendant is not en- titled to compensation for loss of time in procuring a disso- lution of an injunction ; Bi but he is entitled to his necessary expenses to that end. 68 Thus, he can recover for attorney *s As to the liability, in general, of sureties on injunction bonds, see - 27 Cent. Dig. col. 2279. *» Dorriss v. Carter, 67 Mo. 544; Krug v. Bishop, 44 Ohio St. 221, 6 N. B. 252; Pickett v. Boyd, 11 Lea (Tenn.) 498. so Chicago City Ry. Co. v. Howison, 86 111. 215; Hibbard v. Mc- Kindley, 28 111. 240; Epenbaugh v. Gooch, 15 Ky. Law Rep. 576; Hotchkiss v. Piatt, 8 Hun (N. Y.) 46; Wood v. Hollander, 84 Tex. 394, 19 S. W. 551; Lehman v. McQuown (C. C.) 31 Fed. 138. 6i Cook v. Chapman, 41 N. J. Eq. 152, 2 Atl. 286. b 2 Hayes v. Gravel Co., 37 111. App. 19. 63 Bank of Monroe v. Gifford, 70 Iowa, 580, 31 N. W. 881. 64 Cook v. Chapman, 41 N. J. Eq. 152, 2 Atl. 286. 6 6 Alliance Trust Co. v. Stewart, 115 Mo. 236, 21 S. W. 793; Ten Eyck v. Sayer, 76 Hun, 37, 27 N. Y. Supp. 588 ; Crounse v. Railroad Co., 32 Hun (N. Y.) 497. § 194) REPLEVIN BONDS. 385 fees expended in procuring its dissolution," unless the injunc- tion was but a part of the relief asked by the plaintiff, and is dissolved after a hearing of the entire case, 57 without any particular services having been rendered in relation to the in- junction ; but attorney fees paid in resisting its allowance can- not be recovered, as the latter expense was incurred before the injunction was issued, and was not the result of it, 68 the liability of the sureties extending to such damages as arise after the injunction has been issued. If the defendant had been successful in resisting the injunction, there would not have been an injunction bond, yet the expense would have been incurred just the same. Likewise, there cannot be any recovery for attorney fees paid in securing a modification of the in- junction. 68 REPLEVIN BONDS. 194. The sureties on a replevin bond will be liable if the plaintiff in the replevin suit do not prosecute his ac- tion with diligence; or if the plaintiff do not restore the property to the defendant, or pay its value in event its seizure was wrongful; or if the defendant suffer damage by reason of its wrongful seizure and deten- tion. oe Bush v. Kirkbride, 131 Ala. 405, 30 South. 780; Bustamente v. Stewart, 55 Cal. 115; Belmont Mining & Milling Co. v. Costigan, 21 Colo. 465, 42 Pac. 650; Wittich v. O'Neal, 22 Fla. 592; Binford v. Grimes, 26 Ind. App. 481, 59 N. E. 1085; Colby v. Meservey, 85 Iowa, 555, 52 N. W. 499; Nimmocks v. Welles, 42 Kan. 39, 21 Pac. 787; New National Turnpike Co. v. Dulaney, 86 Ky. 516, 6 S. W. 590; Meaux v. Pittman, 35 La. Ann. 360; Neiser v. Thomas, 46 Mo. App. 47; City of Helena v. Brule, 15 Mont. 429, 39 Pac. 456, 852; Cook v. Chapman, 41 N. J. Eq. 152, 2 Atl. 286; Crounse v. Railroad Co., 32 Hun (N. Y.) 497; Noble v. Arnold, 23 Ohio St. 264. " Boiling v. Tate, 65 Ala. 417, 30 Am. Rep. 5; San Diego Water Co. v. Steamship Co., 101 Cal. 216, 35 Pac. 651; Tabor v. Clark, 15 Colo. 434, 25 Pac. 181; Ady v. Freeman, 90 Iowa, 402, 57 N. W. 879; Lamb v. Shaw, 43 Minn. 507, 45 N. W. 1134; Brown v. Bald- win, 121 Mo. 126, 25 S. W. 863 ; Whiteside v. Cottage Ass'n, 84 Hun, 555, 32 N. Y. Supp. 724; Noble v. Arnold, 23 Ohio St. 264; Livingston v. Exum, 19 S. C. 223; Donahue v. Johnson, 9 Wash. 187, 37 Pac. 322. " Randall v. Carpenter, 88 N. Y. 293. 08 Ford v. Loomis, 62 Iowa, 586, 16 N. W. 193, 17 N. W. 910. Childs' Subhtyship— 25 386 JUDICIAL BONDS. (Ch. 10 The action of replevin is brought to recover the possession of specific personal property by one claiming a right thereto, and its object is forcibly to take such property from the person having possession. 60 Before the plaintiff will be permitted to maintain the action, he must give a bond 61 to indemnify the defendant for any damage which the latter may sustain if the seizure be wrongful, 62 and conditioned to prosecute the suit with diligence, 63 and to return the property to the defendant if the plaintiff fail to establish a right to its possession, or to pay its value. 64 There is a breach of the bond if the plaintiff voluntarily discontinue his suit at any time before final judg- ment. 65 The officer serving the writ is liable if he do not re- quire a bond, and may refuse to act until a sufficient bond has been tendered. 66 In the absence of fraud, a judgment against the plaintiff dis- missing the action, or finding that the property belongs to the defendant, is conclusive evidence against the sureties on the bond; 67 and the costs of the suit may be included in the «o See Stearns, Law of Suretyship, p. 407. si As to the liability, generally, of sureties on replevin bonds, see 24 Cent. Dig. col. 2486. ea Mason v. Richards, 12 Iowa, 73. 6 3 Mills v. Gleason, 21 Cal. 274; Humphrey v. Taggart, 38 111. 228; Elliott v. Black, 45 Mo. 372; Alderman v. Roesel, 52 S. O. 162, 29 S. B. 385. e* The amount stated in the bond is prima facie evidence of the value of the property. Martin v. Hertz, 224 111. 84, 79 N. B. 558. es Wiseman v. Lynn, 39 Ind. 250; McKey v. Lauflin, 48 Kan. 581, 30 Pac. 16. If the failure to prosecute results from causes not with- in the plaintiff's control, there is no breach of the bond. Burkle v. Luce, 1 N. Y. 163 ; Pierce v. Hardee, 1 Thomp. & C. (N. T.) 557. 66 Hall v. Monroe, 73 Me. 123; Bulmer v. Jenkins, 3 How. Prac. (N. Y.) 11; Hughes v. Newsom, 86 N. C. 424. 67 Ernst v. Hogue, 86 Ala. 502, 5 South. 738; Cantril v. Bahcock, 11 Colo. 143, 17 Pac. 296; Schott v. Youree, 142 111. 233, 31 N. E. 591; Peck v. Wilson, 22 111. 205; McFadden v. Fritz, 110 Ind. 1, 10 N. E. 120 ; Mason v. Richards, 12 Iowa, 73 ; Jacobson v. Metzgar, 43 Mich. 403, 5 N. W. 445 ; McKinney v. Willis, 64 Miss. 82, 1 South. 3 ; Thomas v. Markmann, 43 Neb. 823, 62 N. W. 206; Richardson v. Bank, 57 Ohio St. 299, 48 N. E. 1100 ; Cox v. Hartranf t, 154 Pa. 457, 26 Atl. 304; Barry v. Frayser, 10 Heisk. (Tenn.) 206; Washington Ice Co. v. Webster, 125 U. S. 426, 8 Sup. Ct. 947, 31 L. Ed. 799. See, also, Kennedy v. Brown, 21 Kan. 171. § 194) REPLEVIN BONDS. 387 damages recovered by the defendant. 68 If the replevin suit failed for some reason which did not involve the merits of the controversy, 09 as would be the case where the action was dis- missed for lack of jurisdiction, 70 the sureties can show, in mitigation of damages, that the plaintiff had a right to the property, though this will not release the sureties from all liability, 71 and they may be held for nominal damages at least. es Morrill v. Daniel, 47 Ark. 316, 1 S. W. 702 ; Harts v. Wendell, 26 111. App. 274. so Davis v. Harding, 3 Allen (Mass.) 302. to Robinson v. Teeter, 10 Ind. App. 698, 38 N. B. 222. ii In Illinois, the statutes (Rev. St. c. 119, § 26) provide that the sureties may show that the plaintiff has a right to the property, if the merits of the case are not determined in the replevin suit. O'Don- neli v. Colby, 153 111. 324, 38 N. B. 1065 ; Hertz v. Kaufman, 46 111. App. 591. 388 BAIL BONDS AND RECOGNIZANCES. (Ch. 11 CHAPTER XL BAIL BONDS AND RECOGNIZANCES. 195-196. Definitions. 197. Rights and Liabilities In General. 198-200. Custody and Surrender of Principal. 201. Discharge of Bail — In General. 202. Discharge by Performance. 203. Discharge by New Bond or Recognizance. 204-205. Discharge by Act of God or by Act of Law. 206. Forfeiture. BAIL BOND— DEFINITION. 195. A bail bond is one taken by a sheriff, conditioned for the dne appearance of a defendant named therein to an- swer to legal process described, by which process the sheriff is commanded to arrest the defendant, and by authority of snch process has arrested him. RECOGNIZANCE— DEFINITION. 106. A recognizance is an obligation of record, entered into before some court, conditioned for the performance of some particular act specified therein. When a person has been arrested, it is possible, with some exceptions, for him temporarily to procure his liberty by giving a bail bond 1 or entering into a recognizance. 2 Distinctions between a Bail Bond and a Recognizance. There is considerable resemblance between a bail bond and a recognizance, and the two terms frequently are used inter- changeably; but, in their strict sense, there are some distinc- tions. A bail bond is a new contract, executed by sureties, and sealed, and a separate action must be brought thereon i See, generally, as to bail bonds, 5 Cent. Dig. col. 2125 ; and, as to recognizances, 42 Cent. Dig. col. 599. 2 As pronounced by lawyers, the "g" in this word is silent. § 196) DEFINITIONS. 389 for its breach. 3 A recognizance is in the nature of a confession of a conditional judgment in court by the sureties, acknowledg- ing an existing debt, and is entered upon the records, 4 being suspended so long as the principal does or does not do speci- fied acts; but, on his default, the judgment, upon proper pro- ceedings in court, will be made absolute without any new action being brought. A bail bond is a judicial bond, taken while awaiting adjudication of a case by the court, and not after final process ; while a recognizance may be taken at any time. Parties. The sureties on a bail bond are known as "bail." The word "bail" is used also to designate the act of delivering the prin- cipal to his sureties. 5 The sureties in a recognizance are known as "recognizors," "cognizors," or "conusors." Bail — Criminal and Civil. Bail may be taken in criminal or civil cases ; in the latter case being known as civil or special bail. The object of bail in criminal cases is to secure the appearance, 8 at a designated time and place, of one accused of crime, in order that proper legal steps may be taken toward the disposition of his case. The ob- ject of civil bail is to secure, directly or indirectly, the payment of a debt or the performance of some civil duty. Payment by the bail, in a civil case, of the obligation of the principal, dis- charges him and them ; whereas, payment by the bail in a crimi- nal case of the full penalty of their bond, while it releases them, does not free the principal from liability to be brought into court. 8 Clark's Criminal Law, p. 93. * Clark's Criminal Law, p. 92. 6 The word "bail" comes from the French word' "bailler," mean- ing "to deliver." The word "bailment" comes from the same root; a bailment being a delivery of personal property In trust for some purpose. sRamey v. Commonwealth, 83 Ky. 534. 390 BAIL BONDS AND EECOGNIZANCES. (Ch. 11 RIGHTS AND LIABILITIES OF BAIL AND RECOGNIZORS —IN GENERAL. 197. The right* and liabilities of sureties on a bail bond, or on a. recognizance, are similar to those of sureties in general. The general principles of suretyship apply to bail bonds and recognizances. While the rights and liabilities of sureties there- on differ, in many respects, from those of sureties on a com- mercial bond, the sureties are entitled, in general, to the same privileges. 7 Void Bonds. If the bond or recognizance be void, the sureties will not be liable. 8 A bail bond is void if it does not recite a crime against the law ; • though it is sufficient if it specify an offense in gen- eral terms. 10 A recognizance to appear and answer for "being concerned in a row" would not be binding, as an offense is not charged. 11 The sureties, however, will not be discharged by reason of mere technicalities or clerical errors ; 12 nor is it any defense that the name of the principal is not stated correctly. 13 t Bail are discharged by a change in their contract BuIIen v. Dresser, 116 Mass. 267 ; Bean v. Parker, 17 Mass. 591 ; Campau v. Seeley, 30 Mich. 57 ; Commonwealth v. Clay, 9 Phila. (Pa.) 121 ; State v. Sureties, 4 Wyo. 347, 34 Pac. 3. Or by an extension granted to the principal without their consent Rathbone v. Warren, 10 Johns. (N. Y.) 587; Willison v. Whitaker, 7 Taunt. 53, 2 Marsh. 383. s Haney v. People, 12 Colo. 345, 21 Pac. 39 ; Stafford v. Low, 20 111. 152; State v. Jones, 3 La. Ann. 9; Irwin v. State, 10 Neb. 325, 6 N. W. 370; United States v. Goldstein, 1 Dill. (U. S.) 413, Fed. Cas. No. 15,226. » Waters v. People, 4 Colo. App. 97, 35 Pac. 56 ; Nicholson v. State, 2 Ga. 363 ; Simpson v. Commonwealth, 1 Dana (Ky.) 523 ; State v. Wooten, 4 La. Ann. 515; Horton v. State, 30 Tex. 191. io State v. Weaver, 18 Ala. 293 ; State v. Merrihew, 47 Iowa, 112, 29 Am. Bep. 464 ; State v. Tennant, 30 La. Ann. 852 ; People v. Den- nis, 4 Mich. 609, 69 Am. Dec. 338; State v. Weideman, 30 Mo. App. 647; State v. Birchim, 9 Nev. 95; Territory v. Conner (Okl. 1906) 87 Pac. 591; United States v. Bldredge, 5 Utah, 161, 13 Pac. 673. " State v. Ridgley, 10 La. Ann. 302. 12 Mooney v. People, 81 111. 134 ; Territory v. Conner (Okl. 1906) 87 Pac. 591. 13 Commonwealth v. Lamar, 32 Pa. Super. Ct. 200. §§ 198-200) CUSTODY AND SURRENDER OF PRINCIPAL. 391 It is not a defense to the sureties that the indictment or in- formation is defective, 14 that the sureties assumed liability be- fore the accused was arrested, 16 that the defendant was taken into custody illegally, 16 that the prosecution of the offense is barred by the statute of limitations, 17 or that the case was not entered upon the docket. 18 Deposit in Lieu of Bail. Unless a statute authorizes a deposit of money in lieu of bail, such a deposit is illegal, 19 and, if made, cannot be recovered. CUSTODY AND SURRENDER OF PRINCIPAL. 198. The custody of the principal is committed to the sure- ties on his bail bond or recognizance, and they have the right to apprehend and surrender him at any time. 199. A surrender of the principal to the proper officer will discharge the sureties. ABSENCE OF PRINCIPAL FROM JURISDICTION. 200. Sureties on a bail bond or on a recognizance are not dis- charged from liability by reason of the absence of the principal from the state. Custody and Surrender of Principal. Theoretically, when a prisoner is released upon his giving a bail bond or entering into a recognizance, he is in the custody of i* United States v. Manthei, 2 Alaska, 459; Harris v. State, 60 Ark. 209, 29 S. W. 640 ; Sharpe v. Smith, 59 Ga. 707; Kepley v. Peo- ple, 123 111. 367, 13 N. E. 512; Friedline v. State, 93 Ind. 366; State v. Morgan, 124 Mo. 467, 28 S. W. 17 ; King v. State, 18 Neb. 375, 25 N. W. 519; Lee v. State, 25 Tex. App. 331, 8 S. W. 277; State v. Sureties, 4 Wyo. 347, 34 Pac. 3; Hardy v. United States, 71 Fed. 158, 18 C. C. A. 22. "Hortsell v. State, 45 Ark. 59; Vias v. Commonwealth, 7 Ky. Law Rep. 743. io Littleton- v. State, 46 Ark. 413. « United States v. Dunbar, 83 Fed. 151, 27 C. C. A. 488. is State v. Spear, 54 Vt. 503 ; King v. Clark, 5 B. & A. 728. i» Butler v. Foster, 14 Ala. 323 ; Smart v. Cason, 50 111. 195; Rein- hard v. City of Columbus, 49 Ohio St. 257, 31 N. E. 35. 392 BAIL BONDS AND RECOGNIZANCES. (Ch. 11 his sureties, 20 until he is discharged by due course of law, though they would not be allowed actually to confine him. This right to the custody of the principal empowers the sure- ties, in their discretion, to arrest him without process, 21 and to surrender him 22 at any time 23 to the proper officer, 24 usually to the sheriff. They are allowed to break into his house, 25 if, after demand and refusal, it becomes necessary ; 26 and the ar- rest may be made on Sunday. 27 This right to apprehend the principal allows the sureties to pursue him into another state 28 and to arrest him there. Arrest by Agent. They may designate an agent to make the arrest, 29 or require the assistance of an officer ; 30 but, if the arrest is not made in their presence, the authority to the agent should be written, 31 zoBearden v. State, 89 Ala. 21, 7 South. 755; Ramsey v. Cool- baugh, 13 Iowa, 164; Reinhard v. City of Columbus, 49 Ohio St 257, 31 N. E. 35. 2i State v. Lingerfelt, 109 N. C. 775, 14 S. E. 75, 14 L. R. A. 605; Taylor v. Taintor, 16 Wall. (IT. S.) 371, 21 L. Ed. 287. 22 Parker v. Bidwell, 3 Conn. 84; Clark v. Gordon, 82 Ga. 613, 9 S. E. 333; Norfolk v. People, 43 111. 9; Koch v. Coots, 43 Mich. 30, 4 N. W. 534 ; Nicolls v. Ingersoll, 7 Johns. (N. Y.) 145 ; Harp v. Os- good, 2 Hill (N. Y.) 216; Hughes v. State, 28 Tex. App. 499, 13 S. W. 777 ; Taylor v. Taintor, 16 Wall. (U. S.) 371, 21 L. Ed. 287. 23 A forfeiture will not deprive sureties of their right to arrest the principal. Bearden v. State, 89 Ala. 21, 7 South. 755 ; State v. Lingerfelt, 109 N. C. 775, 14 S. E. 75, 14 L. R. A. 605. a* State v. Le Cerf, 1 Bailey (S. C.) 410. 25 Read v. Case, 4 Conn. 166, 10 Am. Dec. 110; Nicolls v. Inger- soll, 7 Johns. (N. Y.) 146 ; Taylor v. Taintor, 16 Wall. (U. S.) 366, 21 L. Ed. 287. 2e Read v. Case, 4 Conn. 166, 10 Am. Dec. 110. 27 Taylor v. Taintor, 16 Wall. (U. S.) 371, 21 L. Ed. 2S7. 28 Ex parte Lafonta, 2 Rob. (La.) 495; Commonwealth v. Brick- ett, 8 Pick. (Mass.) 138; Nicolls v. Ingersoll, 7 Johns. (N. Y.) 146; State v. Lingerfelt, 109 N. C. 775, 14 S. E. 75, 14 L. R. A. 605 ; Tay- lor v. Taintor, 16 Wall. (TJ. S.) 371, 21 L. Ed. 287. 29 Nicolls v. Ingersoll, 7 Johns. (N. Y.) 146. Such agent cannot appoint an agent, though he can employ assistants to act in his pres- ence. State v. Mahon, 3 Har. (Del.) 568. 3« State v. Cunningham, 10 La. Ann. 393. 3i State v. Lingerfelt, 109 N. C. 775, 14 S. E. 75, 14 L. R. A. 605 > Taylor v. Taintor, 16 Wall. (U. S.) 371, 21 L. Ed. 287. § 200) CUSTODY AND SURRENDER OF PRINCIPAL. 393 otherwise the principal would be at the mercy of any one who chose to represent that he had authority. A surrender by one surety will be presumed to be the act of all; 82 or the accused may surrender himself. 88 Constructive Surrender. Some kinds of constructive surrender will suffice. The de- livery of a certified copy of the bond to the proper officer, with instructions to arrest the accused, will be sufficient as soon as he has been arrested, 84 or if he is already in prison, though ar- rested on another charge. 30 Other forms of constructive sur- render will not suffice. 36 Thus, if the sureties should meet the principal and the sheriff in the street when the latter was not in a position to take actual possession of the accused, a direction to the sheriff to take the accused would not discharge the sureties. Bail Discharged by Surrender. A surrender of the principal before his case is called for trial, 87 operates to discharge the sureties; 88 but, if they have bound themselves to pay a fine imposed against the accused, they cannot free themselves from liability by surrendering him. 88 Departure from State. Absence from the state is not an excuse for a failure of bail to produce the principal, if they voluntarily have allowed him to leave ; 40 nor does it make any difference that the principal is a minor, and has been taken away by his parent. 41 32 State v. Doyal, 12 La. Ann. 653. 33 Babb v. Oakley, 5 Cal. 94 ; Walton v. People, 28 111. App. 645 ; Dick v. Stoker, 12 N. C. 91. 3* Sternberg v. State, 42 Ark. 127. so State v. Trahan, 31 La. Ann. 715. ae State v. McMichael, 50 La. Ann. 428, 23 South. 992. 37 Edwards v. Gunn, 3 Conn. 316. ssBoswell v. Colquitt, 73 Ga. 63; Kellogg v. State, 43 Miss. 57; Brownelow v. Forbes, 2 Johns. (N. T.) 101. so State v. Meier, 96 Iowa, 375, 65 N. W. 316 ; State v. Stommel, 89 Iowa, 67, 56 N. W. 263. *o State y. Scott, 20 Iowa, 63; Yarbrough v. Com., 89 Ky. 151, 12 S. W. 143, 25 Am. St. Rep. 524 ; Harrington v. Dennie, 13 Mass. 93 ; State v. Horn, 70 Mo. 466, 35 Am. Rep. 437 ; King v. State, 18 Neb. 375, 25 N. W. 519; Devine v. State, 5 Sneed. (Tenn.) 623; Taylor v. Taintor, 16 Wall. (U. S.) 366, 21 L. Ed. 287. 4i Starr v. Commonwealth, 7 Dana (Ky.) 243. 394 BAIL BONDS AND RECOGNIZANCES. (Ch. 11 DISCHARGE OF BAIL— IN GENERAL. 201. A discharge of the principal, although erroneous, dis- charges his sureties. If anything occurs entitling the principal to a discharge from custody, the sureties on his bail bond or recognizance are discharged, 42 as they no longer have the right to apprehend him ; and it does not make any difference that the discharge of the principal was erroneous. 43 DISCHARGE BY PERFORMANCE. 202. Sureties on a bail bond or on a. recognizance will be dis- charged by performance of their contract. Performance as to Time. The sureties on a bail bond or on a recognizance undertake that the principal will appear at a certain time and place, and they will be discharged if the principal so appears ; though much depends upon the wording of the bond whether there has been a breach of it or not. If the condition of the bond is that the accused shall appear on a day certain, without more, an appear- ance on that day is a compliance with the terms of the bond, discharging the bail, 44 though he does not appear afterwards. So, if the condition is that the principal shall appear during a named term of court, and he is in attendance during that term, the bond is complied with, although there has not been any ac- « State v. Glenn, 40 Ark. 332; Lockwood v. Jones, 7 Conn. 439; Roberts v. Gordon, 86 Ga. 386, 12 S. E. 648; Shields v. Smith, 78 Ind. 425 ; Smith v. Commonwealth, 91 Ky. 588, 16 S. W. 532 ; State v. Wilson, 14 La. Aim. 450; State v. Cobb, 44 Mo. App. 375; Peo- ple v. Felton, 36 Barb. (N. T.) 429; Mills v. McCoy, 4 Cow. 410; Led- ford v. Emerson (N. C. 1906) 55 S. E. 969. 43 Butler v. Bissel, 1 Root (Conn.) 102 ; People v. Hathaway, 102 111. App. 628; Commonwealth v. Bronson, 14 B. Mon. (Ky.) 361; Duncan v. Tindall, 20 Ohio St. 567. " Roberts v. Green, 31 Ga. 421 ; Ogden v. People, 62 111. 63 ; Peo- ple v. Kennedy, 58 Mich. 372, 25 N. W. 318 ; Townsend v. People, 14 Mich. 388 ; State v. Mackey, 55 Mo. 51 ; Swank v. State, 3 Ohio St 429 ; State v. Becker, 80 Wis. 313, 50 N. W. 178. § 202) DISCHARGE BY PERFORMANCE. 395 tion taken as to his case. If the bond requires the appearance of the defendant at the "next term," he is not required to ap- pear at a special term intervening; 45 but if he appear at the next regular term, and his case is continued, the bond remains in force. 46 A bail bond usually provides for the appearance of the de- fendant "to answer the charge," 47 or "to abide the order of the court," or "from day to day," 48 or "from term to term," 48 in which cases the sureties are bound until the defendant is discharged by the court, or surrendered or taken into the custo- dy of the court. 60 If the bond is conditioned that the principal shall not depart without leave of the court until his conviction or acquittal, his sureties are not liable if he escape after a ver- dict of guilty is rendered. 51 It would be different if the bond provide that he shall abide the judgment of the court ; 52 but a mere failure to indict B3 or a quashing of the indictment 54 will « State v. Aubrey, 43 La. Aim. 188, 8 South. 440; State v. Hous- ton, 74 N. O. 174. 48 Stokes v. People, 63 111. 489 ; State v. Benzion, 79 Iowa, 467, 44 N. W. 709; Rubush v. State, 112 Ind. 107, 13 N. E 877; Eamey v. Commonwealth, 83 Ky. 534; People v. Hauaw, 106 Mich. 421, 64 N. W. 328; State v. Smith, 66 N. C. 620; State v. Breen, 6 S. D. 537, 62 N. W. 135; Pickett v. State, 16 Tex. App. 648. *' Wintersoll v. Commonwealth, 1 Duv. (Ky.) 177. 48 Stokes v. People, 63 111. 489; Rubush v. State, 112 Ind. 107, 13 N. E. 877; People v. Gordon, 39 Mich. 259; People v. Millham, 100 N. Y. 273, 3 N. E. 196; Allen v. Commonwealth, 90 Va. 356, 18 S. E. 437. 49 Williams v. State, 55 Ala. 71; Chase v. People, 2 Colo. 528; Gallagher v. People, 91 111. 590; State v. Whitson, 8 Blackf. (Ind.) 178; State v. Baldwin, 78 Iowa, 737, 36 N. W. 908 ; Glasgow v. State, 41 Kan. 333, 21 Pac. 253. 50 State v. Tienian, 39 Iowa, 474 ; Commonwealth v. Coleman, 2 Mete. (Ky.) 382 ; State v. Martel, 3 Rob. (La.) 22 ; Lee v. State, 51 Miss. 665. »i Roberts v. Gordon, 86 Ga. 386, 12 S. E. 648 ; State v. Wilson, 14 La. Ann. 446. 62 state v. Thompson, 62 Ind. 367 ; State v. Stewart, 74 Iowa, 336, 37 N. W. 400 ; Glasgow v. State, 41 Kan. 333, 21 Pac. 253 ; Neinin- ger v. State, 50 Ohio St. 394, 34 N. E. 633. 40 Am. St. Rep. 674. 68 Fleece v. State, 25 Ind. 384 ; Commonwealth v. Roberts, 4 Mete. (Ky.) 220; State v. Doane, 30 La. Ann. 1194; Jones v. State, 11 Tex. App. 412. 64 State v. Brooks, 48 La. Ann. 855, 19 South. 739 ; State v. Han- cock, 54 N. J. Law, 393, 24 Atl. 726. 396 BAIL BONUS AND KECOGNIZANCES. (Ch. 11 not discharge the sureties, though it might be otherwise if the principal had given bail to appear and answer to an indict- ment. 55 If the principal be indicted for an offense of the same nature as that named in the bond, as an indictment for larceny, the offense having been named as robbery, 56 the liability of the sureties continues ; B7 but it would not be so if the principal be indicted for an entirely distinct offense, 58 as, being charged with perjury, he is indicted for burglary. 59 . Performance as to Place. If there is a provision in the bond for the appearance of the defendant at court at a particular place, and the court is moved afterwards without his knowledge, his appearance, in good faith, at the place designated, discharges his bail ; eo or if the bond name a court which has no existence, the bail are not liable for the failure of the principal to appear at another court. 61 However, the liability of bail is not affected by a change of venue 62 legally taken. 63 05 People v. Felton, 36 Barb. (N. Y.) 429. 56 Mudd v. Commonwealth, 14 Ky. Law Rep. 672. 57 Pack v. State, 23 Ark. 235 ; Adams v. Governor, 22 Ga. 417 ; Commonwealth v. Butland, 119 Mass. 317; Commonwealth v. Slo- cum, 14 Gray (Mass.) 395; Duke v. State, 35 Tex. 424. 56 People v. Sloper, 1 Idaho, 158; Reese v. People, 11 111. App. 346; State v. Brown, 16 Iowa, 314; State v. Forno, 14 La. Ann. 450; Draughan v. State, 35 Tex. Cr. R. 51, 35 S. W. 667. eo Gray v. State, 43 Ala. 41. so Hannum v. State, 38 Ind. 32. 6i Sherman v. State, 4 Kan. 570; Coleman v. State, 10 Md. 168. In Petty v. People, 118 111. 148, 8 N. E. 304, the condition was for the appearance of the defendant at the "criminal court." There was not any court of that designation ; but, as the circuit court had ex- clusive jurisdiction of criminal cases, it was held that the defend- ant should have appeared there. 6 2 Beasley v. State, 53 Ark. 67, 13 S. W. 733; Williams v. McDan- iel, 77 Ga. 4 ; State v. Brown, 16 Iowa, 314 ; Commonwealth v. Aus- tin, 11 Gray (Mass.) 330 ; Pearson v. State, 7 Tex. App. 279. Where the case is transferred by an act of the Legislature, the sureties are not discharged. Ramey v. Commonwealth, 83 Ky. 534. 6 3 If a change of venue is allowed without authority, the sureties are discharged. Adams v. People, 12 111. App. (12 Bradw.) 380; State v. Young, 20 La. Ann. 397. But the mere grant of an order for a change of venue will not release the sureties, if the change is not taken. Gray v. Commonwealth, 100 Ky. 645, 38 S. W. 1092. §§ 203-205) DISCHARGE BY ACT OF GOD OR LAW. 397 DISCHARGE BY NEW BOND. 203. The sureties on a bail bond are discharged if the prin- cipal appear and a new bond be tahen for his future appearance. While the sureties might not be discharged by the appearance of the principal on the first day only of the term, or by any appearance which was not compliance with the terms of the bond, if he do appear, and, before there is any default, a new bond is taken to secure his future appearance, the sureties upon the former bond are discharged from further liability; ei and .this results, although the new bond is invalid, and is set aside. 65 ACT OF GOD, ACT OF LAW, AND ACT OF OBLIGEE. 204. Sureties on a. bail bond or in a recognizance are excus- ed from producing the principal if prevented by the act of God, by the act of law, or by the act of the obligee. DEATH, REARREST, AND ENLISTMENT. 205. If the principal die, or if he be rearrested on the same charge, or if he be drafted into the military service, his sureties are excused from producing him. While the sureties on a bail bond or in a recognizance are bound unconditionally to produce the defendant, and they are held to a somewhat strict performance of their contract, they will be excused if performance has been rendered impossible by the act of God, or by the act of law, 66 or by the act of the obligee. 67 Death of the principal, being regarded as the act 6* Schneider v. Commonwealth, 3 Mete. (Ky.) 400. 6 5 Peacock v. State, 44 Tex. 11. 66 The act of law which will excuse a surety must be one which operates in the state where the obligation was entered into and which binds the officers of that state. Steelman v. Mattix, 38 N. J. Law, 247, 20 Am. Rep. 389. "Taintor v. Taylor, 36 Conn. 242, 4 Am. Rep. 58; Steelman v. 398 BAIL BONDS AND RECOGNIZANCES. (Ch. 11 of God, will discharge them. 88 As the obligee in a bail bond or in a recognizance is, usually, the state, the act of the obligee becomes the act of law. Act of Law or of the Obligee. If a state Legislature enacts that all prior recognizances shall be void, 69 or abolishes the court before which the defendant was to appear, 70 or changes the law so that imprisonment of the defendant would be no longer lawful, the sureties are dis- charged. Thus, if imprisonment for debt be abolished, civil bail, previously taken, would be discharged, as it would not be lawful for the bail to arrest the principal for the purpose of surrendering him. 71 Rearrest. The sureties are released by a rearrest of the principal on the same charge, 72 because he is placed in the control of the officer Mattix, 38 N. J. Law, 247, 20 Am. Rep. 389 ; People v. Manning, 8 Cow. (N. Y.) 297, 18 Am. Dee. 451. ss Pynes v. State, 45 Ala. 52 ; Piercy v. People, 10 111. App. (10 Bradw.) 219; Griffin v. Moore, 2 Ga. (2 Kelly) 331; Wakefield v. MeKlnnell, 9 La. 449; People v. Meyer, 9 Misc. Rep. 726, 29 N. Y. Supp. 1148; Walsh v. Schulz, 13 Daly (N. Y.) 132; Mt. Pleasant Bank v. Pollock, 1 Ohio, 35; Conner v.' State, 30 Tex. 94. Sureties will be excused, although the death of the principal occurs after a forfeiture. State v. Cone, 32 Ga. 663; Mather v. People, 12 111. 9; Woolfolk v. State, 10 Ind. 532; State v. McNeal, 18 N. J. Law, 333;- People v. Wissig, 7 Daly (N. Y.) 23. But not if bail fixed. State v. Scott, 20 Iowa, 63; Hamilton v. Dunklee, 1 N. H. 172: Olcott v. Lilly, 4 Johns. (N. Y.) 407; Rawlings v. Gunstern, 6 Term. R. 284. If the surety has paid after a forfeiture, the subsequent death of the principal will not entitle him to recover the money paid. People v. Rich, 36 App. Div. 60, 56 N. Y. Supp. 277. so Doniphan v. State, 50 Miss. 54. to Taylor v. Taintor, 16 Wall. (U. S.) 366, 21 L. Ed. 287. *i Frey v. Hebenstreit, 1 Rob. (La.) 561; Brown v. Dillahunty, 4 Smedes & M. (Miss.) 713, 43 Am. Dec. 499 ; White v. Blake, 22 Wend. (N. Y.) 612 ; Parker v. Sterling, 10 Ohio, 357 ; Kelly v. Henderson, 1 Pa. 495. 72 state v. Jones, 29 Ark. 127; Smith v. Kitchens, 51 Ga. 158, 21 Am. Rep. 232 ; State v. Orsler, 48 Iowa, 343 ; Medlin v. Common- wealth, 74 Ky. (11 Bush) 605 ; People v. Stager, 10 Wend. 431 ; Pea- cock y, State, 44 Tex. 11. Sureties will not be released by the ar- rest of the principal on another charge. Ingram v. State, 27 Ala. 17 ; Havis v. State, 62 Ark. 500, 37 S. W. 957 ; Hartley v. Colquitt, § 205) DISCHARGE BT ACT OF GOD OK LAW. 399 of the law precisely as he would had the bail surrendered him. 73 So where, during the Civil War, a certain region having been placed under martial law, a federal military officer, after the accused had been released on a recognizance entered into a state court, arrested, removed, and imprisoned the principal, his sure- ties were excused from producing him at the state court. 74 In order, however, that another arrest of the principal shall operate as a discharge of his sureties by being the act of law or of the obligee, it is requisite that such new arrest shall be within the same jurisdiction where the obligation was as- sumed. 75 If the principal be arrested and imprisoned in anoth- er state, his sureties remain liable ; 76 for, in the eyes of the law, he was in the custody of the sureties, and it was through their negligence that he was allowed to depart. 77 If, however, the state in which the bond was entered into has permitted the ac- cused to be extradited, his sureties are discharged. 78 Enlistment. The voluntary enlistment of the principal in the military serv- ice will not release his bail, 79 although it is otherwise if the en- listment be involuntary. 80 72 Ga. 351 ; Brown v. People, 26 111. 28 ; State v. Merrihew, 47 Iowa, 112, 29 Am. Rep. 464 ; People v. Robb, 98 Mich. 397, 57 N. W. 257 ; Bishop v. State, 16 Ohio St. 419 ; Wheeler v. State, 38 Tex. 173. 's State v. Holmes, 23 Iowa, 458 ; Commonwealth v. Coleman, 2 Mete. (Ky.) 382. i* Commonwealth v. Webster, 1 Bush (Ky.) 616. 7« See note 66, supra. '« Ingram v. State, 27 Ala. 17; State v. Scott, 20 Iowa, 63; With- row v. Commonwealth, 1 Bush (Ky.) 17; Harrington v. Dennie, 13 Mass. 93; King v. State, 18 Neb. 375, 25 N. W. 519; Devine v. State, 5 Sneed (Tenn.) 623 ; Taylor v. Taintor, 16 Wall. (U. S.) 366, 21 L. Ed. 287. 77 Taintor v. Taylor, 36 Conn. 242, 4 Am. Rep. 58; Yarbrough v. Commonwealth, 89 Ky. 151, 12 S. W. 143, 25 Am. St. Rep. 524 ; State V. Horn, 70 Mo. 466, 35 Am. Rep. 437. 78 People v. Moore, 4 N. Y. Cr. R. 205 ; State v. Allen, 21 Tenn. (2 Humph.) 258 ; Reese v. United States, 9 Wall. (U. S.) 13, 19 L. Ed. 541. 7» Gingrich v. People, 34 111. 448; Winninger v. State, 23 Ind. 228; State v. Scott, 20 Iowa, 63 ; State v. Reaney, 13 Md. 230 ; Harring- ton v. Dennie, 13 Mass. 93. See, also, Huggins v. People, 39 111. 241. so Belding v. State, 25 Ark. 315, 99 Am. Dec. 214, 4 Am. Rep. 26; Alford v. Irwin, 34 Ga. 25. 400 BAIL BONDS AND RECOGNIZANCES. (Ch. 11 FORFEITURE. 206. Upon failure of the principal, without legal excuse, to appear at the time and place named, his sureties he- come liable for the penalty, and it is not any defense that the principal subsequently appears; but the court, in its discretion, can set a forfeiture aside. If the principal makes default by not appearing in accordance with the terms imposed, the sureties at once become liable for the penalty named in their obligation. 81 When the liability of the sureties is made absolute after default, the bail is said to be "fixed." It is not any defense to the sureties that the principal subse- quently surrenders himself, 82 or is surrendered by his sure- ties, 83 or is arrested, 84 tried, and convicted. 85 Neither does a pardon, subsequently granted, affect the liability. 86 All of these matters are independent of the fact that the sureties have not performed their contract, and have become, thereby, liable for the penalty. 87 Setting Aside Forfeiture. It is, however, discretionary with the court to set aside the forfeiture; S8 and usually it will be set aside where it is tech- 8i New Haven Bank v. Miles, 5 Conn. 587. 82 Hangsleben v. People, 89 111. 164; State v. Emily, 24 Iowa, 24; Sproat v. Commonwealth, 4 Ky. Law Rep. 629; State v. McGuire, 16 R. I. 519, 17 Atl. 918; Lee v. State, 25 Tex. App. 331, 8 S. W. 277. as People v. Bartlett, 3 Hill, 570; State v. Warren, 17 Tex. 283. s* Brown v. People, 26 111. 28 ; State v. Martin, 50 La. Ann. 1157, 24 South. 590; Reed v. Police Court, 172 Mass. 427, 52 N. E. 633; People v. Bennett, 136 N. T. 482, 32 N. E. 1044. 8 5 Walker v. Commonwealth, 79 Ky. 292. ss Dale v. Commonwealth, 101 Ky. 612, 42 S. W. 93. A pardon, before conviction, is a defense if the principal accepts. Grubb v. Bullock, 44 Ga. 379. st Weatherwax v. State, 17 Kan. 427; Mount v. Commonwealth, 2 Duv. (Ky.) 95 ; State v. Davidson, 20 Mo. 212, 61 Am. Dec. 603. ss Chase v. People, 2 Colo. 481 ; Russell v. State, 45 Ga. 9 ; State v. Traphagen, 45 N. J. Law, 134 ; People v. Tubbs, 37 N. T. 586 ; Ba- ker v. State, 21 Tex. App. 359, 17 S. W. 256. An appeal does not lie from the decision of the court in regard to remitting a forfeiture. § 206) FORFEITUKE. 401 nical only and justice seems to require it, as where there was not any intent to evade the law. 89 The entry of an order show- ing a release from liability is known as an "exoneretur." In event of the sickness 90 or insanity 91 of the defendant, which prevents his appearance, the court will set aside a forfeiture, es- pecially if the defendant appears as soon as he recovers. How- ever, a forfeiture will not be set aside until the costs actually have been paid, 92 as they constitute a distinct liability. 98 After a remission of the forfeiture, the parties stand in the same position as they did previous to the forfeiture ; the duty remaining upon the sureties to comply with the conditions, as before, for the appearance of the principal. 94 People v. Bennett, 136 N. T. 482, 32 N. E. 1044 ; Commonwealth v. Oblender, 135 Pa. 536, 19 Atl. 1057 ; Bross v. Commonwealth, 71 Pa. 262. Unless the court has abused its discretion. People v. Hobbs, 46 111. App. 206 ; State v. Kraner, 50 Iowa, 582 ; State v. Denny, 10 La. Ann. 335; Barton v. State, 24 Tex. 250. ss McArdle v. McDaniel, 75 Ga. 270 ; Wray v. People, 70 111. 664 ; People v. Baer (Com. PI.) 7 N. Y. Supp. 660 ; People v. Deery, 6 Da- ly (N. Y.) 493. so Sickness of the surety is not a defense, if the principal has not appeared. People v. Meehan, 14 Daly (N. Y.) 333. »i In some states the sureties are excused, if the principal has been adjudged insane and confined in a hospital. Commonwealth v. Fleming, 15 Ky. Law Rep. 491 ; Fuller v. Davis, 1 Gray (Mass.) 612. Contra, Adler v. State, 35 Ark. 517, 37 Am. Rep. 48. 92 Ward v. Colquitt, 62 Ga. 267; People v. Smith, 43 111. App. 217. 93 State v. Beebee, 87 Iowa, 636, 54 N. W. 479 ; Commonwealth v. Ramsay, 2 Duv. (Ky.) 385; Commonwealth v. Shick, 61 Pa. 495; Chambless v. State, 20 Tex. 197. »i State v. Cornig, 42 La. Ann. 416, 7 South. 698. Childs' Suretyship— 26 APPENDIX. A good lawyer always should protect the interests of his client, provided he does not work injustice to others. When a lawyer is employed to draw up a bond, he has it in his power to make it more advantageous for one party than foi' the other, such as by inserting express conditions to overcome those im- plied by law. If he is employed by both parties, he should en- deavor to make the contract as advantageous to one as to the other, and give to each a copy thereof. Suppose the employe of a bank be required to give a bond. The employe might be instructed to furnish it, or the attorney of the bank might draw up the bond, and call in the employe and his sureties to execute it. In the former case, the employe and the sureties do not wish to incur any greater risk than necessary ; in the latter, the bank desires that the sureties shall not have any excuse for escaping liability. To illustrate the difference that easily might be made in such a case, the following forms are given, the first giving the bond presented by the employe ~, the latter, the one drawn in the in- terests of the bank. Form of Bond Protecting Interests of Sureties. Know Am, Men by These Presents, That we, Guy Guernsey, as principal (hereinafter designated as the prin- cipal), and William B. Walrath and Clinton S. Woolfolk, as sureties (hereinafter designated as the sureties), all of the city of Chicago, in the county of Cook, and state of Illinois, are bound severally and respectively unto the Calumet Trust & Savings Bank, a corporation of the state of Illinois, in said city of Chicago (hereinafter designated as the bank), in the sum of five thousand ($5,000.00) dollars each, 1 good and lawful money i While this provision gives the bank security to the extent of $10,000, it prevents either one of the co-sureties from being called Childs' Suretyship (403) 404 APPENDIX. of the United States, tc be paid to the said bank, its successors or assigns, for which said several payments, well and truly to be made, each of us does hereby bind himself, severally and re- spectively, but not jointly, nor one for the other. Sealed with our seals, and dated this first day of July, 1907. Whereas, the above-bounden Guy Guernsey has been chosen and appointed teller of the said bank, by reason whereof he will receive or have control or be chargeable with money, property, or other things of the bank and of others : Now, therefore, the condition of this obligation is such that if the principal, his executors or administrators, well and truly shall serve the bank as such officer during his continuance in office, within the term for which he has been chosen, and well and truly perform and discharge his duties as such officer, and at the end of his said office, or whenever sooner thereto re- quired upon request to him or to 'them made, shall make and give unto the bank, or to its agent or attorney, a just and true account of all money, property, and other things as shall come into his possession or control or charge as such officer, and shall pay and deliver over to his successor in office, or to any other person duly authorized to receive the same, all such bal- ances or sums of money, property, or other things of value which shall appear to be in his hands, or chargeable to him, and due and deliverable by him to the bank, then this obligation to be void ; otherwise, to remain in full force and virtue. This bond is made, issued, delivered, and accepted upon the following additional conditions which are agreed to by the bank, and which are to be construed as conditions precedent to the liability of the sureties hereunder, and must be per- formed, 2 faithfully and fully, before any claim under this bond can be enforced against the sureties : Neither of the sureties shall be liable unless all of the obligors and the obligee herein named shall execute this bond. 3 The sureties shall not be liable if the principal, at any time upon to pay more than one-half of that sum. The sureties should enter into a written contract with each other in regard to contribu- tion, providing for sharing equally any sums either may be requir- ed to pay on account- of this obligation. See ante, c. VII, note 38. 2 See ante, § 125. » This gives constructive notice of the condition. See ante, § 42. APPENDIX. 405 previous to the delivery of this bond, was known by the bank, or by its officers, to be a defaulter, 4 or to have been guilty of any acts which would indicate that he was not of good char- acter. The sureties shall not be liable for any acts of the principal which do not amount to larceny, embezzlement, or fraud as an employe as to property or funds in his personal possession or control ; nor for any fund reported as being in possession of the principal unless such sum shall be actually in his possession; nor for any defaults occasioned by making good prior de- faults of the principal. 5 The liability of the sureties shall terminate at once, if the du- ties of the principal are changed, 6 or if additional duties 7 are imposed upon him other than those which may arise naturally from a growth of the business of the bank ; or if the capital stock of the bank be increased ; or if its charter expire by limi- tation or otherwise ; or if any reduction be made in the salary of the principal, or in the method of ascertaining the same ; 8 or if his compensation be paid to him in advance, 9 or unreason- ably withheld ; or if the services of the principal are discon- tinued for any cause, 10 except for such reasonable time as may * This condition would be implied by law. See ante, § 54. But, as the parties are not lawyers, it is better to insert many of the im- plied conditions, so that there may be no misunderstanding on these points. 5 In the absence of this express provision, the sureties would be liable for a default arising from the application by the principal of funds in his possession to pay a previous shortage. See ante, c. V, note 354. « See ante, c. V, notes 177 and 407, as to the effect, on the liabil- ity of the sureties, of a change in the duties of the principal. 7 In the absence of an express provision, the sureties would be dis- charged, in any event, if the added duties of the principal were suf- ficient to interfere with the proper performance of the duties cov- ered by the bond. See ante, c. V, note 179. s See ante, c. V, note 181, as to changes affecting the principal's compensation. » See ante, c. V, note 173. io In the absence of any stipulation on this point, the liability of the sureties for any subsequent acts of the principal would cease the instant the services of the principal were discontinued for any cause. See ante, c. V, note 298. 406 APPENDIX. be given to him each year for a vacation; or if the principal shall die, and claim, in writing, of any amount due from the principal's estate, shall not be presented to the sureties with- in sixty days after his death. 11 Either of the sureties shall have the right to terminate his liability on this bond by giving sixty days' notice, in writing, to the bank, and the sureties shall not be liable for anything that may occur after the expiration of sixty days from the time such notice shall be received by the bank. 12 The liability of each of the sureties shall terminate within sixty days after either of them becomes insane, or shall die, or after proceedings shall be instituted to have either of them de- clared a bankrupt; 13 and if, for any reason, one of the sure- ties shall be discharged, the other shall be discharged likewise. The sureties shall not be liable unless an examination of the accounts of the principal shall be made at least once in every three months by an expert accountant; 14 and if the principal shall gamble, or become intoxicated, and this fact be known to the bank, or to its officers, prompt notice thereof shall be giv- en in writing to each of the sureties. 16 If the principal defaults in the performance of his duties, notice thereof, in writing, shall be given to each of the said sureties within thirty days after such default is known to the bank or to its officers; and the liability of the sureties as to future defaults shall terminate as soon as the bank or its officers n In the absence of a provision requiring a prompt presentation of claims against the sureties, the obligee, legally, might wait any length of time short of the statute of limitations. See ante, § 98. 12 This stipulation is very important; otherwise, in the absence of an actual default known to the obligee, the sureties would be lia- ble indefinitely. See ante, § 111. is in the absence of this stipulation, the entire burden of a de- fault might be thrown on one of the sureties. I* This keeps a check on the principal. In the absence of some such provision, the obligee would not be required to examine the principal's accounts, although there might be a by-law of the cor- poration requiring periodical examinations to be made. Such by- laws are held to be for the benefit of the stockholders, and not for the benefit of the sureties. See ante, c. V, note 364. 15 Such information will enable the sureties to investigate; and, if deemed advisable, they can give notice to terminate their liabil- ity as provided in a preceding paragraph. APPENDIX. 407 have knowledge of a default by the principal. 18 In event of a default, the bank agrees to have criminal proceedings instituted promptly against the principal, 17 and to exhaust the principal, if solvent, or any security which it may hold, before resort- ing to the sureties; ls and the sureties shall be given prompt notice if the bank institutes any suit against the principal. The sureties shall have ninety days after receiving notice of such de- fault within which to make settlement therefor with the bank ; and they may set off or recoup, against any claim by the bank arising under this bond, any claim or claims which the principal and the sureties, or either of them, or any two of them, may have against the bank. 19 Suit shall not be brought against the sureties until after demand, in writing, has been made on them by the bank. If the principal has given or shall give any other bond or bonds to the bank, and the principal commits a default which renders the sureties thereon and the sureties on this bond liable, the sureties on this bond shall be liable for such default only in proportion which the penalty of this bond bears to the total penalties of all the bonds. Upon settlement of any claim against the sureties under this bond, the bank shall assign to the sureties all claims or rights of action which the bank has against the principal. 20 Guy Guernsey. (Seal.) William B. Walrath. (Seal.) Clinton S. Woolfolk. (Seal.) Calumet Trust and Savings Bank, (Seal.) By Edmund Burke, President. Form of Bond Protecting Interests of Obligee. Know Aw, Men by These Presents, That we, Lewis F. Fell, as principal (hereinafter designated as the princi- i8 This would be implied by law. See ante, § 116. " This acts as a check on the principal, and thus protects the sureties. is in the absence of this provision, the obligee could proceed first against the sureties, without resorting to any security it might hold. See ante, § 96. i° See ante, § 148, as to counterclaims. 20 See ante, c. V, note 835, as to assignment to surety of claims against the principal. 408 APPENDIX. pal), and Charles A. Thatcher, Daniel E. Brong, and Edward F. Raymond, as sureties (hereinafter designated as the sure- ties), all of the city of New York, in the county of New York, and state of New York, are held and firmly bound unto George H. Frost, Adelbert E. Rice, and Erwin F. L,apham, copartners under the name and style of G. H. Frost & Co., transacting a general banking business in said city of New York (herein- after designated as the obligees), in the sum of ten thousand ($10,000.00) dollars, gold coin of the United States of the standard weight and fineness, to be paid to the said obligees, their heirs, executors, administrators, or assigns, for which pay- ment, well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, jointly and severally, and every two or more and each of them jointly and severally, 21 firmly by these presents. Sealed with our seals; and dated this first day of July, 1907. Whereas the above-bounden Lewis F. Fell has been chosen and appointed teller for the obligees, by reason whereof he will receive or have control, or be chargeable with money, property, or other things of the obligees or of others : Now, therefore, the condition of this obligation is such that if the principal, his executors or administrators, well and truly shall serve the obligees as such officer so long as he shall con- tinue in said office, whether for the present term for which he has been appointed or for any other or of any succeeding term to or for which he may be appointed, whether continuous or not, 22 and well and truly perform and discharge all of his du- ties as such officer, and at the expiration of his said office, whether for the present term or for any other or succeeding term, or whenever sooner thereto required, upon request to him or them made, shall make or give unto the obligees, or to their agent or attorney, a just and true account of all moneys, prop- erty, and other things as shall have come into his possession or si In the absence of this provision, while the obligees might sue any one of the obligors severally, or all of them jointly, an action against more than one and less than all could not be maintained. 2 2 If the principal is appointed for a specified term, the sureties would not be liable after that term, in the absence of an express stipulation making them liable for subsequent terms. See c. V, note 303. APPENDIX. 409 control or charge as such officer, and shall pay and deliver over to his successor in office, or to any other person duly authorized to receive the same, all such balances or sums of money, prop- erty, or other things which shall appear to be in his hands or chargeable to him, and due or deliverable by him to the ob- ligees, then this obligation to be void ; otherwise, to remain in full force and virtue. This bond is executed, delivered, and accepted with the un- derstanding that the liability of the sureties is not affected by reason of any failure of the obligees to disclose any informa- tion they or either of them may, possess in regard to the repu- tation, habits, or past acts of the principal, 23 and is subject to the following additional stipulations : The sureties shall be liable for all prior defaults of the prin- cipal existing at the time this bond is given, whether known to the obligees or not, 24 as well as for all defaults occurring at any time hereafter, and for all defaults which may be made to cover prior defaults. 25 The sureties are to be liable for any loss resulting to the ob- ligees through the principal, whether such loss results from the dishonesty of the principal, from his negligence, or from his er- rors in judgment; 26 and the liability of the sureties shall extend to any losses of funds or property of the obligees in the posses- sion or control of the principal, although such loss may arise from fire, theft, robbery, or burglary, without any fault or neg- ligence on the part of the principal, 27 and to all losses sustained by the obligees which arise through the default of the principal 23 See ante, § 54. 24 The general rule is that sureties are not liable for any default occurring prior to the delivery of the instrument, unless an inten- tion to become so liable is shown clearly. See ante, § 124. 25 The sureties would be liable in this case without an express provision. See ante, c. V, note 354. 26 If sureties are to be held liable for losses arising through er- rors in judgment by the principal, it is much better to have this clearly appear ; otherwise, there may be some question about it. See ante, c. V, note 436. 27 The sureties for a private officer are not liable, impliedly, for any losses resulting from fire, larceny, robbery, burglary, or a bank failure, if the principal has been free from negligence, though it is otherwise as to the sureties of a public officer. See ante, § 188. 410 APPENDIX. in connection with other persons, and to all losses to which the acts or negligence of the principal shall have contributed, as well as to such acts as result from the acts or negligence of the principal alone. The sureties shall remain liable although the capital or vol- ume of the business may be increased, or the scope and methods of the business of the obligees be changed; and shall remain liable for the principal after any change in the membership of said copartnership of G. H. Frost & Co., 28 whether arising from death, or the withdrawal of or from an addition of a part- ner or partners, or from any other cause, so long as the firm name continues as at present, and the sureties shall be liable to the members of such new partnership for any acts of the prin- cipal to the same extent as they would have been to the pres- ent members if there had not been any change ; and the liability of the sureties can be enforced by the obligees, or by the survivor or survivors of them, for their own use, or for the use of those who were members of the firm at the time the default of the principal occurred, or for the use of those who are members at the time the action may be brought, or such action may be brought in the name or names of such members themselves, as they may elect. The use of the word "obligees" in this bond shall be taken to apply also to those who may seek, under this paragraph, to enforce the liability of the sureties. The obligees shall have the right to change 29 or add 30 to the duties of the principal, or change the place of performance of his duties; 31 and the sureties shall be liable for any defaults as to such different or added duties to the same extent as they are for his present ones. The liability of the sureties shall not be affected by any 2 8 The general rule Is that sureties are not liable after any change has occurred in the number of the obligees. See ante, § 117. 2 8 Unless there is a stipulation in regard to making changes in the duties of the principal, the sureties would not be liable for any du- ties outside of the scope of the employment as set out in the recital. See ante, c. V, notes 177 andl 405. so See ante, c. V, note 179. si In the absence of an express provision, it might be questiona- ble whether the sureties would be liable for any duties performed elsewhere than in the place of original employment. See ante, c. V, notes 137 and 411. APPENDIX. 411 change in the compensation of the principal, or in the manner of ascertaining the same, 82 or in the time of paying same, 33 or by a discontinuance of the services of the principal for any time less than one year; but if the principal, for any cause, shall cease at any time to be employed by the obligees, but shall be re-employed by them within one year from the time any such employment ceased, the liability of the sureties on this bond shall be the same as if the employment of the principal had been continuous and without interruption. 3 * The liability of the sureties shall not be affected if the obli- gees take a new bond from the principal, unless the obligees expressly agree to terminate the liability of the sureties upon this bond ; S6 nor shall the liability of the sureties be affected by any release, surrender, relinquishment, or loss of any property or security, of any kind, of the principal or of others, or of rights or remedies against them or any of them, which the ob- ligees may have at any time ; 3B nor shall the liability of any of the sureties be affected by a release, directly or indirectly, of either or of both the other sureties. 37 The sureties waive notice of all defaults of the principal, and consent to remain liable for all future defaults of the prin- cipal as long as he may be continued in the employment of the obligees, whether his defaults may be known to the obligees or not, and whether notice of defaults are given to the sureties or not. 38 82 See ante, c. V, note 182. S3 See ante, c. V, note 173. si Generally, the liability of sureties terminates the instant the principal's employment ceases for any cause, although he is re-em- ployed subsequently. See ante, c. V, notes 298 and 304. " As to the effect, upon the liability of sureties, of the obligee tak- ing a new bond, see ante, c. V, note 348. The new bond is supposed to be cumulative, but a doubt might arise. ss The general rule is that sureties are released, if the obligee re- linquishes or loses securities, to the extent of the value of the se- curities so relinquished or lost. See ante, § 127. 37 Generally a release of one co-surety releases the others propor- tionately. See ante, c. V, note 644. as After a default by the principal, known to his employer, the lia- bility of the sureties is terminated at once as to all future defaults, unless they consent to remain bound ; but as to the default already 412 APPENDIX. In event of a breach of this bond, the obligees shall not be required to proceed against the principal, 88 nor against his es- tate, and the liability of the sureties shall not be affected, in any way, by their failure to do so. If the principal shall be or shall become a defaulter, any re- lease, 40 discharge, or settlement with the principal, which does not result in full payment in cash " by him of any loss sustained by the obligees, shall not affect the rights of the obligees against the sureties ; nor shall the liability of the sureties be affected by any extension or extensions of time for settlement or for pay- ment given to the principal at any time. 42 The sureties hereby covenant and agree to save the obligees- harmless from any acts of the principal, and that the obligees shall not be liable or subject to loss ; 43 and, in event of a suit being brought on this bond, the obligees can recover as dam- ages, in addition to any actual loss they may have sustained, di- rectly or indirectly, up to the time judgment is rendered, inter- est on the same at the highest rate allowed by law, 44 and their reasonable attorney fees ; 46 and the defendants in any such suit shall not have the right to set off or recoup any claim, except such as may be possessed by the principal and sureties jointly. 46 committed the sureties remain liable without notice, unless they have stipulated therefor. See ante, § 116. 39 Unless there are statutory provisions to the contrary, the ob- ligees would not be required to proceed, first, against the principal. See ante, § 96. *o A release of the principal, without the consent of the sureties, releases the latter. See ante, § 132 (c). 4i Generally, giving a negotiable instrument is treated as payment. See ante, c. V, note 591. 42 An extension of time granted to the principal, without the con- sent of the sureties, would discharge the latter. See ante, § 108. *3 This provision would enable the obligees to bring suit against the sureties before being called upon to make payment on account of some default by the principal. See ante, c. V, note 439. Gener- ally, to obtain substantial damages, the obligees must have suffered an actual loss ; and it would not be sufficient that they were liable to loss. 44 Interest is recoverable at the legal rate in any event, even though the added interest swells the amount of damage beyond the penalty named in the bond. See ante, § 145. 4 5 gee, as to attorney fees, ante, c. V, note 740. 4 See, as to counterclaims, ante, § 148. APPENDIX. 413 After the obligees shall have recovered a judgment against the principal and sureties, either jointly, or against any one or more fewer than all, the sureties shall not be obliged to satisfy such judgment out of the property of the principal before re- sorting to the property of the, sureties, but may satisfy such judgment out of the property of any one or more of the de- fendants as the obligees may elect. Lewis F. Fell. (Seal.) Charles A. Thatcher. (Seal.) Daniel E. Brong. (Seal.) Edward F. Raymond. (Seal.) State of New York, \ _ County of New Yrok.J ' I, Robert L. Lane, a notary public in and for the county and state aforesaid, do hereby certify that Lewis F. Fell, Charles A. Thatcher, Daniel E. Brong, and Edward F. Raymond, person- ally known to me to be the same persons whose names are sub- scribed to the foregoing instrument, appeared before me this day in person and acknowledged that they signed, sealed and delivered the said instrument as their free and voluntary act, for the uses and purposes therein set forth. Given under my hand and official notarial seal this first day of July, 1907. Robert L. Lane, Notary Public. Here note the addresses of the sureties and make a schedule of their assets. The three parts of a bond can be observed in the above forms : First, the penal or obligatory part, which provides for the payment of money. Should the bond end here, it would be an ordinary obligation for the payment of money. Next comes the recital, setting forth the circumstances under which the bond is given, and the reason therefor ; and, lastly, the condi- tional part, or defeasance, providing that, upon the performance of certain acts named, the bond shall be void. The bond is broken by a failure to comply with the conditions named ; and, upon showing that fact, the liability of the sureties is estab- lished. 414 APPENDIX. The following is a form for a continuing guaranty to pro- tect the creditor : Form for Continuing Guaranty to Protect Creditor. For and in consideration of one dollar " (the receipt whereof is acknowledged hereby), to us in hand paid by the Puritan Banking Company, a corporation of the state of Massachusetts, we hereby guaranty, absolutely and unconditionally at all times, unto the said Puritan Banking Company the payment of any balance of indebtedness 48 of Edwy L. Reeves, of the city of Boston, state of Massachusetts, to the said Puritan Banking Company, to an amount not exceeding five thousand ($5,000.00) dollars, whether such indebtedness now exists, or is incurred hereafter, and in whatever form it may be evidenced. We hereby waive notice of acceptance of this guaranty, 49 and all notices of the amounts advanced hereunder, and all notice of defaults 60 by the said Edwy L,. Reeves, and consent to any ex- tensions 61 of the time of payment of said indebtedness, or of any portion thereof, and to any change in form or renewal, at any time, of such indebtedness, or of any evidence thereof, tak- en by the said Puritan Banking Company. This guaranty shall continue, at all times, to the amount of five thousand ($5,000.00) dollars, regardless of the amounts re- ceived * and paid by the said Edwy L. Reeves, until a written notice, revoking the same, shall be received by the said Puritan Banking Company, and shall bind us jointly and severally, and our heirs, executors, and administrators. In event of the death of either or of both of us, we hereby *' See ante, § 50, as to adequacy of consideration. 48 see ante, c. IV, note 71. This indicates clearly that the guar- anty is a continuing one, and that the guarantor is liable for an unpaid balance regardless of the volume of the transactions between creditor and the principal. 4» See ante, § 37 (g), as to the necessity of notice of acceptance. bo See ante, § 99 (b), as to the necessity of notice to the guaran- tor, of the principal's default, where the time of payment and the amount is not certain. si An extension of the time of performance, granted to the prin- cipal by the creditor without the consent of the guarantor, would discharge the latter. See ante, § 108. * See c. V, note 147. APPENDIX. 415 bind our heirs, executors, and administrators, until knowledge of such death shall reach the said Puritan Banking Company. 62 In witness whereof, we have hereunto set our hands and seals at the city of Boston, in the state of Massachusetts, on the first day of July, 1907. Arthur S. Peebles. (Seal.) Rawson Redman. (Seal.) The following form is for a limited guaranty of collection to protect the guarantor against greater liability than he actually intended to assume : Form for Guaranty of Collection to Protect Guarantor. Ann Arbor, Mich., July 1, 1907. Mr. George W. Underwood, Detroit, Mich. : Mr. Hamilton Hunt, of this place, goes to your city this week to buy goods. We guaranty the collection 63 of the price of any goods which you may sell to him on this trip, 04 on sixty days' time, 66 not exceeding five hundred dollars in amount. Ailing & Hammill, by Charles Ailing. 62 See ante, § 119, as to the effect on a guaranty of the death of the guarantor. 63 A guarantor of collection is not liable unless the principal is shown to be financially irresponsible. See ante, § 126. « This qualification makes it clear that the guaranty is intend- ed to be noncontinuing. See ante, § 25. 55 xhe guarantor will not be liable if there be any deviation from the exact terms prescribed by him. See ante, c. V, note 191. TABLE OF CASES CITED. [THE FIGURES BEFEB TO PAGES.] A Abbey v. Van Campen, 296. Abbott v. Brown, 7, 270. v Zeigier, 63. Abeel v. Radcliff, 107 Abel v. Alexander, 181, 183. Abeles v. Mitchell, 317. Abrams v. Pomeroy, 220. Abshlre v. Rowe, 220. Acers v. Curtis. 328, 331, 339. Acme Mfg. Co. ,. Reed, 26. Adair v. Campbell, 293. Adams v. Clarke, 120. v. Curny, 236. t. De Frehn, 337. v. Flanagan, 38, 90, 152, 322. v. Gomila, 383. v. Governor, 396. v. Hayes, 337. v. Huggins, 49. v. McMillan, 107, 110. v. People, 396. v. Way, 153. Adle v. Metoyer, 149, 155. Adler y. State, 401. Ady v. Freeman, 385. Mtaa. Ins. Co. v. Fowler, 202, 204. v. Thompson, 277. v. Wires, 281. .(Etna L. Ins. Co. v. Surety Co., 220. Agnew v. Bell, 326, 341, 351. v. Merritt, 148, 151. Agricultural Bank v. Bishop, 180. Aikin v. Peay, 332, 334. Ainslie v. Wilson, 304. Aitken v. Lang, 208. Alabama Nat. Bank v. Rivera, 360. Alber v Froelich, 380. Albright v. Griffin, 178. Alcock v. Hill, 183. Alcorn v. Com., 195. Alderman t. Roesel, 386. Aldrich v. Aldrich, 348. v. Ames, 90. v. Blake, 290. v. Chubb, 222, 224. Aldridge ' v. Turner, 48, 54. Alexander v. Bank, 225. v. Eberhardt, 371. v. Jacoby, 382. Alford v. Baxter, 252. v. Irwin, 399. Alger v. Scoville, 90, 98, 99. Allen v. Addington, 92. v. Bantel, 135. v. Berryhill, 236. v. Com., 395. v. Culver, 245. v. Ferguson, 238. v. Henley, 227. v. Joups, 245. v. Kellam, 64. v. McMinn, 238. v. Morgan, 55, 60. v. Pike, 32, 145. v. Powell, 283. v. Ramey, 373. v. Rightmere, 140. v. Rundle, 22, 222. v. Smitherman, 273. Childs' Suretyship— 27 (417) 418 Stewart, Allen v. State, 199. v. Wood, 338, 352. v. Woodard, 136. Aller v. Aller, 49. Alliance Trust' Co. v. 384. Allis v. Ware, 18. Allison v. Rutledge, 258. v. State, 188. v. Sutherlin, 279. v. Thomas. "M.7. 171. Allnut v. Ashenden, 109. Allshouse y. Ramsay, 94. Almy v. Greene, luS. Alston v. Alston, 378. Alter v. Hornpr, 58. American Bonding Co. v. Pueblo Co., 225. American Casualty Ins. Co. v. Green, 158, 164. American Exch. Nat. Bank v Seaverns, 7, 28. American Nat. Bank v. Bros., 365, 366. v Klock, 16. v. Love, 180. American Radiator Co. v. man, 8, 215. v. Trust Co., 44. American Surety Co. v. Loan Co., 165. v. Pauly, 204. v. Thurber, 116. v. Trust Co., 116, 121, 154. American Tel. Co. v. Lennig, 167. Ames t. Colburn, 170. v. Dorroh, 206. t. Foster, 85, 99, 100. v. Huse, 279. v. Jackson, 310. v. Maclay, 147, 234. v. Wilkinson, 237. v. Williams, 263, 379. Amherst Bank v. Root, 31, 191. Amicable Mut. Life Ins. Co. v. Sedgwick, 167, 188. Ammons v. People, 321. CASES CITED. [The figures refer to pages.] Anderson v. Bellenger, 51, 158, Junk Hoff- 159. v. Blakely, 129. v. Harold, 109. v. Joliett, 371. v. Longden, 257. v. Mannon, 175. v. Norvill, 51. v Peareson, 324, 327, 344. v. Spence, 7, 90. v. Walton, 138, 295. Andre v. Bodman, 94. Andrews v Marrett, 56. v. Simms, 362. v. Varrell, 272. Androscoggin Bank v. Kimball, 41. Angle v. Insurance Co., 157. Anstey v. Marden, 99. Anthony v. Capel, 249. v. Estes, 267 v. Frirts, 171. v. Percifull, 328, 330. Apgar's Adm'rs v. Hiler, 91, 297, 299, 316, 317, 327, 344. Apperson v. Cross, 171. v. Stewart, 238. Appleton v. Bascom, 293, 304. v. Parker, 183. Archer v. Noble, 369. Arents v. Com., 260. Arlington v. Merricke, 119. Armistead v. Ward, 177, 181. Armitage v. Pulver, 321, 333. Armstrong v. Cook, 324. v. Gilchrist, 299. v. Warner, 228. Arnold v. Bryant, 54, 360. v. Jones, 170. v. Nichols, 82. v. Stedman, 94. Arnot v. Railroad Co., 61, 62. Arnot's Adm'r v. Symonds, 360. Arrington v. Porter, 275. Ashby's Adm'x v. Smith's Ex'x, 226. Ashford v. Robinson, 108. Ashmore v. Evans, 85, 113. CASES CITED [The figures refer to pages.] 419 Ashton t. Sproule, 179. Asliuelot Sav. Bank v. Albee, 08. Athol Mach. Co. v. Fuller, 61. Atkins v. Baily, 188, 275. Atkinson, Ex parte, 284. v. Stewart, 330, 337. v. Thayer, 337. Atlantic & P. Tel. Co. v. Barnes, 202, 203, 204. Atlas Bank v. Brownell, 66, 67, 70, 203. Attorney General, In re, 368. Atwood v. Vincent, 288. Auchampaugh v. Schmidt, 239. Aucoin v. Guillot, 255. Aud v. Magruder, 29. Auerbach v. Rogin, 301. Augero v. Keen, 190. Aultman v. Smith, 183. Aultman & Oo. v. Fletoher, 95. Aultman & Taylor Co. v. Gorham, 57. Austin v. Belknap, 225. v. Curtis, 136. v. Raiford, 233. v. Richardson, 46, 120, 139. Austin, Tomlinson & Webster Mfg. Co. v. Heiser, 49. Averill v. Loucks, 18. Avery v. Rowell, 79, 80. Ayers, In re, 244. v. Burns, 307. v. Dixon, 281. Ayres v. Wattson, 172. B Babbitt v. Finn, 381. Babb v. Oakley, 393. Babcock, In re, 138. v. Bryant, 144, 145. Babka v. People, 370. Baby v. Baby, 217. Bachelder v. Fiske, 328, 338, 341, 350. Backus v. Archer, 166. v. Clark, 104. v. Coyne, 316, 328, 332. Badham v. Jones, 371. Baer's Appeal, 377. Bagley v. Clarke, 167. v. Moulton, 53. Bagott v. Mullen, 343. Bailey v. Gould, 184. v. Larchar, 118, 121, 125. v. New, 196. v. Ogden, 107, 109. Bailey Loan Co. v. Seward, 196. Baily v. Brownfield, 281. Baily's Estate, In re, 297, 326, 327, 349, 350. Baird v. Rice, 225. Baker v. Briggs, 224, 231, 266. v. Elliot, 206. v. Frellsen, 169. v. Kellogg, 197. v. Kelly, 139, 140. v. Kennett, 236, 254. v. Martin, 317, 365. v. Merriam, 233. v. State, 400. v. Trotter, 126. Baker City v. Murphy, 189. Baker County v. Huntington, 37. Baldwin v. Bank, 153. v. Emery, 299. v. Fleming, 6, 91. v. Hiers, 104. Ballard v. Brummitt, 214. v. Burton, 7, 50, 55, 56, 57. Ballew v. Roler, 284. Balsley v. Hoffman, 273. Baltimore & O. R. Co. v. Bitner, 273. y. Jackson, 374. v. Jameson, 273. v. State, 212. v. Trimble, 289. v. Vanderwarker, 64. Bancroft v. Abbott, 308, 342. v. Pearce, 308. v. Winspear, 217. Bangs v. Mosher, 177. y. Strong, 146, 147, 159, 178, 183, 226. 420 CASES CITED. [The figures refer to pages.] Bank v. Layne, 324. Bank of Albion v. Burns, 18, 151, 172. Bank of Ashland y. Jones, 260. Bank of Auburn v. Throop, 290. Bank of Brighton v. Smith, 64. Bank of British Columbia v. Jeffs, 152. Bank of Commonwealth v. Me- Ohord, 161. Bank of Illinois v. Sloo, 26. Bank of Manchester v. Bartlett, 227. Bank of Mississippi v. Duncan, 276. Bank of Monroe v. Anderson Co., 65, 66, 70. v. Gifford, 224, 231, 384. Bank of Newark v. Crawford, 157. Bank of Newbury v. Richards, 258. v. Sinclair, 29, 139, 140. Bank of Northern Liberties v. Cresson, 75. Bank of Pennsylvania v. Potius, 280, 288. Bank of St. Albans v. Smith, 131, 187. Bank of St. Marys v. Mumford, 152. Bank of Sandusky v. Follett, 128. Bank of Tarboro v. Deposit Co., 12. Bank of Toronto v. Hunter, 280. Bank of Uniontown v. Mackey, 180. Bank of United States v. Hatch, 172. Bank of Virginia v. Boisseau, 289. Bank of Washington v. Barring- ton, 186. Banks v. State, 239. Bannantine v. Cantwell, 73. Barbee v. Morris, 247. Barber v. Gillson, 18, 299, 300. v. Buggies, 36, 176. Barclay v. Gooch, 300. v. Lucas, 209, 259. Barden v. Southerland, 42. Bardwell v. Lydall, 238. Barge t. Van Der Horck, 352. Barickman v. Kuykendall, 106. Barker v. Bucklin, 101. v. McClure, 174. y. Parker, 59, 207. 257, 258. v. Scudder, 101, 139. Barkwell v. Swan, 231. Barman v. Carhartt, 224. Barnard v. Lloyd, 113. v. Schuler, 371. Barnes v. Barnes, 296. v. Mott, 16, 251. v. Mowry, 196. v. Van Keuren, 51. Barnett v. Smith, 206, 256. v. Wing, 172. Barney v. Clark, 229, 266. v. Grover, 297. v. Patterson, 106. Barnsback v. Reiner, 309, 313. Barrington v. Bank, 217. Barrow v. Shields, 231. Barry v. Frayser, 386. v. Law, 109. v. Ransom, 91, 321, 324, 327, 344. v. Rawson, 324. Barstow v. Gray, 109. Barth v. Graf, 298. 330. Bartholomew v. Bank, 279. v. Seaman, 139. Bartlett v. Board, 42. v. Cunningham, 196, 198. v. Governor, 123. Barton v. Brent, 278. v. Croydon, 289. v. Martin, 289. v. Speis, 7. v. State, 401. Bascom v. Smith, 33. Bashford v. Shaw, 143, 146. Baskin v. Godbe, 171. Bassett v. Crafts, 263. Batard v. Hawes, 326, 339. CASES CITED. [The figures refer to pages.] 421 Bates v. Bank, 195. v. Merrick, 304, 311. t. Sabin, 95. v. Vary, 296. Battle t. Hart, 296. Baucus y. Barr, 377. Baugber v. Duphorn, 246. Baumeister v. Kuntz, 360. Bausman v. Guarantee Co., 300. Baxter v. Moore, 298. Bayer t. Lugar, 246. Bayley t. Insurance Co., 257. Bays v. Conner, 18. Bay v. Thompson, 29, 144. Beach t. Zimmerman, 183. Beakes v. Da Cunha, 50. Beal v: Brown, 298, 310. Beall v. Cochran, 234. v. Walker, 281. Bean v. Chapman, 242. v. Parker, 43, 169, 390. Beard v. Converse, 113. Bearden v. State, 392. Beardmore v. Cruttenden, 137. Beard v. Union Co., 272. Beasley v. Boothe, 182. v. State, 396. Beath v. Chapoton, 70. Beattie v. Browne, 152. v. Dickinson. 284. Beaver v. Beaver, 137, 296. Bebee v. Moore, 50. Bebout v. Bodle, 176. Bechervaise v. Lewis, 273. Bechtold v. Lyon, 30. Becker v. Northway, 273. v. People, 251, 381. Beckett v. Addyman, 207, 350. Beckham v. Pride, 346. Beckley v. Munson, 316. Beck v. Tarrant, 349. Beckwith v. Angell, 152. v. Talbot, 107. v. Webber, 281. Beebe v. Bank, 196. v. Dudley, 144, 146. Beekman v. Hale, 25. Beem v. Parrell, 76. Beerkle t. Edwards, 84. Beers v. Shannon, 268. v. Spooner, 48. Behrens v. Rodenburh, 264. Belcher v. Smith, 127. Belden v. Hurlbut, 38. Belding v. State, 399. Belknap v. Bender, 48, 54, 97. v. Davis, 249. Bell y. Boyd, 330. v. Bruen, 115, 131. v. Lamkin, 351. v. Mahin, 154, 157, 163. v. Norwood, 209. v. Paul, 211. v. Walker, 140, 206. Belleview Loan & Building Ass'n v. Jeckel, 66. Belleville Sav. Bank v. Bornman, 36. Belloni v. Freeborn, 118, 299. Bell's Adm'r v. Jasper, 334. Belmont Min. & Mill. Co. v. Cost- igan, 385. Belond v. Guy, 325. Benjamin v. Ver Nooy, 34, 297. Benne v. Schnecko, 285, 286. Bennett v. Corey, 255. v. Dowling, 317. Bensinger v. Wren, 206, 257. Benson v. Phipps, 179, 180. v. Walker, 84. Bent v. Cobb, 78. v. Hartshorn, 130. Bentley v. Vanderheyden, 253. Benton County Sav. Bank of Norway v. Boddicker, 37, 40. Benton v. Fletcher, 222. v. Gibson, 21, 143, 146, 223. Berbling v. Glaser, 18. Berghaus v. Alter, 247. Berg v. Radcliff, 135. v. Spitz, 99. Berks County Com'rs v. Ross, 159. Berkshire v. Young, 99. Bernheimer v. Charak, 237. Berryman v. Manker, 163. 422 CASES CITED. [The figures refer to pages.] Berry v. Pullen, 176, 181, 183. Best Brewing Co. v. Klassen, 62, 63. Bethune v. Dozier, 197. Bickford v. Gibbs, 49, 54, 146. Bigelow v. Benton, 221. v. Bridge, 188, 190. v. Comegys, 76. v. Stearns, 372. Bill v. Barker, 209. Billings v. Lafferty, 371. v. Sprague, 277. Billington v. Wagoner, 181. Binford v. Grimes, 385. Binnian v. Jennings, 180. Binz v. Tyler, 216. Birchell v. Neaster, 103. Birckhead v. Brown, 258, 259. Bird v. Benton, 318. v. Boulter, 110. v. Gammon, 94. v. Munroe, 112. __ ( Birdsall v. Heacock, 115, 118, 129. Birmingham v. Wright, 191. Bishop v. Day, 16, 137. v. Eaton, 26, 27, 33, 145, 172. v. Freeman, 125. v. Rowe, 280. v. Smith, 330, 344. v. State, 399. Bittick v. Wilkins, 283, 288. Bixby v. Church, 103. Black v. Kaiser, 291. v. Oblender, 215. Blackburn v. Beall, 233. Blackman v. Joiner, 38. Blades v. Dewey, 188. Blair v. Bank, 170. v. Insurance Co., 125.| v. Sanborn, 380. v. Snodgrass, 107. Blake v. Bank, 284. v. Cole, 327, 344. Blakey v. Johnson, 160. Blanding v. Cohen, 223. Blank v. Dreher, 105. Blatehford v. Milliken, 363. Blazer v. Bundy, 147. Bless v. Jenkins, 113. Block v. Blum, 381. v. Dorman, 241. v. Estes, 346. v. Galitzka, 105. i: Blood v. Hardy, 111. Bloom v. Warder, 140, 141. Blow v. Maynard, 305, 314. Bluenthal v. Moore, 99. Blume v. Bowman, 39. Bluthenthal v. Moore, 57. Blydenburgh v. Bingham, 230. Blyth v. Pinkerton. 187. Boardman v. Paige, 142, 347. v. Spooner, 107, 110. Board of Adm'rs v. McKowen, 189. Board of Com'rs v. Branham, 166. Board of Com'rs of Renville County v. Gray, 159. Board of Education of Hartford Tp. v. Thompson, 59. Board of Education of Rapid City v. Sweeney, 39, 44. Board of Education of Village of Pine Island v. Jewell, 375. Board of School Directors of Par- ish of Madison v. Brown, 64. Board of Sup'rs of Lauderdale County v. Alford, 201. Board of Sup'rs of Milwaukee County v. Pabst, 200. Board of Sup'rs of Monroe Coun- ty v. Otis, 67, 203. Board of Sup'rs of Richmond v. Wandel, 270. Board of Sup'rs of St. Joseph County v. Coffenbury, 75. Board of Sup'rs of Washington County v. Dunn, 75. Boatmen's Sav. Bank v. Johnson, 196. Boatwright v. Stewart, 383. Boaz v. Milliken, 252, 381. Bobbitt v. Shryer, 38. CASES CITED. [The figures reter to pages.] 423 Bocard v. State, 274. Bockenstedt v. Perkins, 200, 379. Bogardus v. Mfg. Co., 118. Bogarth v. Breedlove, 164. Boggs v. Curtin, 304. v. State, 206. v. Teackle, 249. Bolles v. Bird, 140. Boiling v. Tate, 385. Bollman v. Pasewalk, 39. Bolton v. Nitz, 157. Boltz's Estate, 285. Bond v. Bishop, 308, 328. v. Storrs, 29. Bonham v. Galloway, 298. Bonner v. Nelson, 179, 247. Bonney v. Seely, 300, 314, 315, 316, 317. Bookstaver v. Jayne, 254. Boone Oo. v. Jones, 203, 263. Booth v. Eighmie, 89, 95. , v. Storrs, 66. Borden v. Gilbert, 224. v. Houston, 123, 262. v. Peay, 241. Borland v. Curry, 317. Boschert v. Brown, 226. Bosley v. Taylor, 316, 332, 340. Bosnian v. Akeley, 223. Boston Hat Manufactory v. Mes- singer, 166. Boston Nat. Bank of Seattle v. Jose, 184. Boston & S. Glass Co. v. Moore, 116, 129. Bostwick v. Van Voorhis, 69, 194. Boswell v. Colquitt, 393. v. Lainhart, 74. Bott v. Barr, 96.. Bouchaud v. Dias, 347. Boughton v. Bank, 283, 346, 347. Boulware v. Hartsook, 152. v. Robinson, 301, 330. Boutin v. Etsell, 329, 332, 335. Bowen v. Darby, 151, 171. v. Hoskins, 330. v. Thwing, 52. Bowling v. Chambers, 179, 197. v. Flood, 153. Bowman v. Blodgett, 300. v. Van Kuren, 38. Bowne v. Bank, 68. Bowser v. Rendell, 6. Boyce v. Ewart, 129. v. Murphy, 102. Boyd v. Insurance Co., 31, 41, 138, 163. v. McConnell, 158. v. Parker, 289. v. Snyder, 26. Boy den v. U. S., 374. Boyd's Ex'rs v. Boyd, 19, 322. Boyer v. Marshall, 344. Boykin v. State, 74. Boyle v. St John, 378. Boynton v. Pierce, 362. Brackett v. Rich, 22, 143, 145, 146, 223. Bradburne v. Botfleld, 257. Bradbury v. Morgan, 208. Bradford v. Corey, 11. v. Hubbard. 3. Bradley v. Burwell, 327, 328, 334, 350. v. Cary, 26. v. Fisher, 372. v. Richardson, 92. Bragg v. Patterson, 285, 286, 295. Brainard v. Jones, 268. v. Reynolds, 142, 224. Braley v. Buchanan, 365. Bramble v. Ward, 185. Branch v. Elliot, 257. v. Railroad Co., 289. Branch Bank at Decatur v. Doug- lass, 63. Branch Bank of State at Mobile t. James, 151. Brand v. Boulcott, 304. Brandenburg v. Flynn, 251, 281, 323. Brandon v. Brandon, 273, 288. Brannum Lumber Co. v. Pickard, 155, 161. Braught v. Griffith, 309, 338. 424 CASES CITED. [The figures refer to pages.] Bray t. Marsh, 260. v. Parcher, 86. Brazier v. Clark, 217. Breckinridge v. Taylor, 332, 342. Breed v. Hillhouse, 56, 146. Brengle v. Bushey, 136, 178. Brent v. Green, 78, 110. Brewer v. Knapp, 187. v. Mills, 286. T. Thorp, 187. Bfidgden v. Cheever, 339. Bridgeport Fire & Marine Ins. Co. v. Wilson, 276. Bridges v. Blake, 239. v. Nicholson, 278. v. Phillips, 233, 249. v. Winters, 195. Bridgman v. Johnson, 281. Briggs v. Boyd, 317, 323. v. Downing, 51. v. Hinton, 282, 328, 342. v. Latham, 48. Bright v. Lennon, 317, 329, 333. Brill v. Hoile, 18, 172. Brinagar's Adm'r v. Phillips, 179. Brinson v. Thomas, 2] 7, 257, 277, 281, 288. Brinton v. Gerry, 225. Brisendine v. Martin, 301, 328. Brittain v. Quiet, 297. Britton v. Dierker, 161. v. Ft Worth, 200. Broad v. Paris, 200. Brockett v. Martin, 371. Brock v. Hopkins, 371. Brockway v. Petted, 262. Brodle v. St. Paul, 107. Bronaugh v. Neal, 272. Bronson v. McCormick Co., 225. v Noyes, 36. Brookbank v. Taylor, 139. Brooking v. Bank, 266. Brooks v. Allen, 158. v. Carter, 135, 137, 195. v. Governor, 271. v. Hope, 206. v. People, 34. v. Wright, 176. Broome v. U. S., 207, 215. Bross v. Com., 401. Brough's Estate, 279. Brown v. Ayer, 147, 249. v. Baldwin, 385. v. Bank, 95, 225, 231. v. Bradford, 233. v. Brooks, 223. v. Brown, 137, v. Com., 244. v. Conner, 380. v. Curtiss, 11, 21, 101, 139. t. Davenport, 71. v. Decatur, 284. v. Dillahunty, 398. v. Haggerty, 246. v. Kidd, 225. v. Lattimore, 190. v. Lester, 371. v. McDonald, 346. v. People, 399, 400. v. Phipps, 211, 373. v. Rathburn, 225. v. Ray, 352. v. State, 220. v. Straw, 170. v. Weatherby, 158. v. Weaver, 373. v. Williams, 233. Brownell v. Freese, 72. Brownelow v. Forbes, 393. Brown, to Use of Clardy, v. Brown, 98. Brubaker v. Okeson, 175, 266. Bruce v. Bickerton, 337. v. U. S., 201, 263. Brumback v. Bank, 37. Brunott v. McKee, 369. Bryan v. Berry, 78. v. Henderson, 18. v. Hunt, 107. v. TJ. S., 212. Bryant v. Owen, 220. v. Rudisell, 3. Buchanan v. Clark, 82, 285. v. Meisser, 17. v. Moran, 95. Buckalew v. Smith, 141. CASES CITED. [The figures refer to pages.] 425 Buck v. Hutchins, 360, 362. Bucklen v. Huff, 158. Buckley v. House, 322. Buckmaster v. Grundy, 332. Buckmyr v. Darnall, 89, 106. Bucknam v. Ruggles, 263. Buckner's Adm'r v. Stewart, 328, 329, 338. Buel v. Gordon, 313. Buell v. Burlingame, 348. Buford v. Francisco, 299. Bugbee v. Kendricken, 103, 104. Buhrer v. Baldwin, 30. Building Ass'n v. Cummings, 46. Bulkley v. Finch, 140. Bull v. Bliss, 145, 223. v. Coe, 141, 249. Bullard v. Johns, 84, 111. Bullen v. Dresser, 157, 390. Bullock v. Campbell, 302, 309, 313, 349. v. Lloyd, 90. v. Taylor, 170. Bullowa v. Orgo, 92, 269. Bulmer v. Jenkins, 386. Bunce v. Bunce, 199, 299. Bunneman v. Wagner, 86. Burchfleld v. Haffey, 268. Burden v. Knight, 113. Burdsall v. Chrisfield, 365. Burgess v. Badger, 121. v. Dewey, 181. Burgoyne v. Trust Co., 207. Burke v. Cruger, 152, 176, 178. Burkle v. Luce, 386. Burlington Ins. Co. v. Johnson, 211. v. Johnston, 214. Burnap v. Bank, 172. v. Robertson, 178. Burnet v. Courts, 243, 245. Burnett v. Henderson, 263. v. Millsaps, 322, 344. Burnham v. Choat, 337. v. Gosnell, 362. v. Kidwell, 60. Burns v. Follansbee, 257. v. Parish, 300. Burnside v. Fetzner, 18. Burr v. Beers, 82. v. Boyer, 227. Burroughs v. Lott, 339. Burson v. Andes, 125. v. Kincaid, 253. Burt v. Horner, 221. v. Wilson, 85, 113. Burton v. Hansford, 361, 364. v. Rutherford, 313. v. Slaughter, 293. v. Stewart, 305. Bush v. Critchfield, 203. v. Kirkbride, 385. v. Stamps, 290. Bushnell v. Beavan, 85. v. Bushnell, 332, '349. v. Church, 144. v. Colony, 126, 127. Bushong v. Taylor, 316. Bustamente v. Stewart, 385. Butcher v. Andrews, 9, 105. Butler v. Birkey, 277, 295, 351. v. Bissel, 394. v. Butler's Adm'r, 315. v. Durham, 117. v. Foster, 391. v. Ladue, 289. v. Sisson, 377. v. State, 190. v. U. S., 38, 41. Buttlar v. Davis, 48, 58. Byers v. Alcorn, 348. v. Gilmore, 37. v. Grain Co., 209. v. Harris, 179. v. Hussey, 175. v. McClanahan, 42, 90, 338, 343. Byram v. McDowell, 331, 335. Byrne v. Muzio, 202. v. Riddell, 58. Cabot v. Haskins, 56. Cady v. Sheldon, 222. Cage v. Foster, 329. 426 CASES CITED. [The figures refer to pages.] Cahill v. Bigelow, 310. Cahuzac v. Samini, 32, 128, 145. Cain v. Bates, 141. Caldwell v Gans, 233. v. Heitshu, 221. v. Roberts, 325, 329, 334, 341. California Sav. Bank v. Surety Co., 242. Calkins v. Chandler, 55, 99. v. Falk, 107. Callahan v. Saleski, 276. Callender, McAuslan & Troup Co. v. Flint, 129, 131. Calvert v. Dock Co., 159, 166. v. Good, 180. v. Gordon, 193. Calvo v. Davies, 16, 172, 174, 184. Cambridge Sav. Bank v. Hyde, 159, 163. Camden v. Doremus, 223. Cameron v. Clarke, 96. Campau v. Seeley, 390. Camp v. Bostwick, 326, 328, 334, 348, 350. v. Howell, 181. v. Simmons, 324, 359. v. Watt, 206. Campbell v. Baker, 172. v. Campbell, 46. v. Chamberlain, 383. v. Findley, 108. v. Macomb, 136, 230. v. Mesier, 332. v. Pratt, 282. v. Sherman, 134, 195. v. Tate, 152. Cannon v. Connaway, 351. Cantril v. Babcock, 386. Capel v. Butler, 227. Capital Say. Bank v. Reel, 171. Capps v. Watts, 8. Cardell v. McNiel, 101. Carey v. State, 212. Carithers v. Stuart, 279. Carlisle v. Campbell, 95. Carlton v. Coffin, 241. Carmack v. Com., 370. Carman v. Elledge, 28. Carmichael v. Governor, 31. Carothers v. Mcllhenny Co., 383. Carpenter v. Devon, 146, 147. v. Doody, 371. v. Kelly, 345, 351. v. King, 147. v. Longan, 260. v. Minter, 286, 317. v Stevens, 234. Carr v. Askew, 378. v. Howard, 176. v. Ladd, 207. Carrick v Morrison, 73. Carrington v. Carson, 326. Carroll v. Corbitt, 253. Carroll County Sav. Bank v. Strother, 44, 140, 254. Cartan v. David, 60. Carter v. Black, 3, 307. v. Duggan, 371. v. Jones, 141. v. Moulton, 38. v. Mulrein, 52. v. Thorn, 268. v. Tice, 379. v. Young, 212. Carver v. Carver, 74. Carville v: Crane, 85, 90. Cary v. Holmes, 339. Case v. Luse, 127. Casey v. Brabason, 7, 365. v. Miller, 95. Casey-Swasey Co. v. Anderson, 165. Cash v. People, 373. Casoni v. Jerome, 70. Casper v. People, 271, 369. Cassity v. Robinson, 274. Cass v. Shewman, 138. Castle v. Rickly, 139, 140, 360. Castner v. Slater, 56. Cates v. Kittrell, 223. Catlett v. Sweetser, 84. Cave v. Burns, 342. Cawley v. People, 32, 67, 204, 368. Cawthorne v. Weisinger, 348. Central Sav. Bank v. Shine, 26, 33. CASES CITED. [The figures refer to pages.] 427 Central Trust Co. v. Bank, 127. Cereghino v. Hammer, 221. Chaddock v. Vanness, 361, 364. Chadwick v. Eastman, 159, 163. v. U. S., 74. Chaffee v. Hooper, 135. v. Jones, 321, 329, 334. Chaffin v. Campbell, 323. Chalaron v. McFarlane, 42. Challenge Corn Planter Co. v. Diel, 172. Chamberlain v. Hodgetts, 211. v. Hopps, 35. Chambers v. Cochran, 146. v. Prewitt, 290. Chambless v. State, 401. Champion v. Noyes, 249. v. Robertson, 150. Chandler v. Brainard, 330. v. Higgins, 18, 281, 285. v. Westfall, 364. Chapeze v. Young, 151, 297, 302, 324. Chapin v. Livermore, 214, 379. v. Merrill, 90. Chaplin v. Baker, 81. Chapline v. Atkinson, 85. v. Robertson, 382. Chapman v. Collins, 243. v. Com., 245, 263. v. Garber, 323. Chappell v. Spencer, 157. Charbonneau v. Bouvet, 239. Charles City Plow & Mfg. Co. v. Jones, 383. Charles v. Haskins, 369. Chase v. Beraud, 380. v. Day, 104. v. Hathorn, 76. v. Lowell, 106. v. McDonald, 117. v. People, 395, 400. Chatham Nat. Bank v. Pratt, 223. Cheesebrough v. Millard, 148. Chelmsford Co. v. Demarest, 188, 189, 274. Cherry v. Miller, 136, 183, 230. v. Wilson, 322. Chester v. Bank, 227. v. Broderick, 134, 252, 267, 282, 381. v. Dorr, 365. Chew v. Ellingwood, 203. Chicago, B. & Q. R. R. Co. v. Bartlett, 374. Chicago City R. Co. v. Howison, 384. Chicago, R. I. & P. R. Co. v. Howard, 62. Chicago Trust Sav. Bank v. Nord- gren, 363. Chicago & A. R. Co. v. Glenny, 15. v. Higgins, 212. Chicago & W. Coal Co. v. Liddell, 97. Chickasaw County v. Pitcher, 177. Child v. Powder Works, 316. Childs v. Wyman, 362. Chilton v. Robbins, 184. Chilton's Adm'r v. Chapman, 344. Chipman v. Pambro, 306. v. Morrill, 19, 333, 339. v. Todd, 225. Choate v. Arrington, 220. v. Quinichett, 237. Choteau v Jones, 293, 295. Chrisman v. Jones, 323, 325, 338. Christner v. Brown, 18, 180. Christy's Adm'r v. Home, 197. Church, Petition of, 278. v. Howard, 157, 159, 164. v. Maloy, 181. v. Simmons, 252, 381. Churchill v. Abraham, 383. v. Bradley, 256. v. Hunt, 217. Chute v. Pattee, 181. Citizens' Bank v. Elliott, 228. Citizens' Loan Ass'n of City of Newark v. Nugent, 188. City Council of Greeneville v. Or- mand, 125. City Nat. Bank of Ottawa v. Dudgeon, 284, 288. City Nat. Bank of Poughkeepsie v. Phelps, 25, 128, 208, 258. 428 CASES CITED. [The figures refer to pages.] City of Albany v. Andrews, 290. City of Butte v. Cohen, 47. City of Chicago v. Gage, 36, 42, 263, 270. City of Deering v. Moore, 39, 43, 252. City of Detroit v. Weber, 200. City of Helena v. Brule, 385. City of Keokuk v. Love, 137. City of Lewiston v. Gagne, 37. City of Los Angeles v. Melius, 39. City of Lowell v. Parker, 275. City of Middletown v. Indemnity Co., 155, 165. City of Natchitoches v. Redmond, 203, 268. City of New Orleans v. Wagga- man, 47. City of New York v. Kelly, 167. v. Ryan, 269. City of St. Louis v. Foster, 274. City Sav. Bank v Hopson, 140. Claflin v. Briant, 26, 32. v. Cogan, 237. Clagett v. Salmon, 162, 171, 184. Claggett v. Ward, 249. Clancy v. Kenworthy, 369. Clapp v. Rice, 304, 323, 337, 347. v. Seilbrecht, 234. Clark v. Bank, 43, 284. v. Birley, 177. v. Fredenburg, 378. v. Gerstley, 141, 164, 171, 176. v. Gordon, 262, 392. v. Hyman, 128. v. Kellogg, 22. v. Mallory, 253. v. Oman, 319. v. Osborn, 196, 197. v. Patton, 171, 173. v. Remington, 145. v. Sickler, 141, 248. v. Small, 54. v. Thayer, 207. v. Wilkinson, 201. Clarke v. Henty, 177. Clason v. Bailey, 109, 110. Clay v. Edgerton, 135, 221. v. Severance, 299. v. Walton, 99. Cleaves v. Foss, 110. Clemens v. Prout, 300. Clements v. Cassilly, 36, 39. v. Langley, 348. Clifford v. Luhring, 105. Clippinger v. Creps, 147. * Clopton v. Hall, 50, 51. v. Spratt, 224, 229. Clune v. Ford, 53. Clute v. Knies, 117. Coan v. fatridge, 210. Coates' Appeal, 278. Coates v. Coates, 226, 230. Cobb v. Ourts, 73. v. Haynes, 339. v. Overman, 313. v. Page, 48. Coburn v. Brooks, 140. v. Webb, 163. v. Wheelock, 333. Cochecho Nat. Bank v. Haskell, 266. Cochrane v. Cushing, 237. Cochran's Estate, In re, 282. Cochran v. Shields, 338. v. Wood, 64. Cockayne v. Sumner, 341. Cocke v. Hoffman, 342. Cockerill v. Sparkes, 241. Cockrill v. Davie, 39. v. Dye, 198. Cockroft v. Claflin, 78. Cocks v. Barker, 49, 262. Coe v. Buehler, 26. v. Cassidy, 250. v. Vodges, 193. Coffeen Coal Co. v. Barry, 316. Coffin v. Trustees, 57. Ooggeshall v. Ruggles, 81, 314. Colby v. Merservey, 385. Colby Wringer Co. v. Coon, 202, 203. Cole v. Crawford, 219, 369. v. Justice,' 272. Coleman v. Bailey, 111. CASES CITED. [The figures refer to pages.] 429 Coleman v. Fobes, 241. v. Lansing, 298. v. State, 396. v. Stone, 141, 207. v. Waller, 255. v. Ward, 241. v. Warde, 174. Colerick v. McOleas, 195. Colgln v. Henley, 50, 108. Colgrove v. Tallman, 138, 150, 195. Collins v. Boyd, 303. v. Carlisle, 19, 322. Colquitt v. Smith, 78. Columbia R. R. Co. v. Braillard, 218. Columbus Sewer Pipe Co. v. Gan- ser, 118. Comegys v. Bank, 332. v. Booth, 183. Comfort v. Bisenbeis, 313. Commercial Bank v. Bank, 147, 230. v. Provident Inst., 259, 260. v. Smith, 40. Commercial Nat. Bank v. Hen- ninger, 228. v. Simpson, 237. Oom'rs of Charities & Corrections of Kings County v. O'Rourke, 262. Com'rs of Jefferson County v. Lineberger, 75. Com. v. Adams, 220. v. Austin, 396. v. Bonding Co., 214. v. Brickett, 392. v. Bronson, 394. v. Rutland, 396. v. Clay, 390. v. Coleman, 395, 399. v. Comly, 374, 375. v. Cooper, 346. v. Cox's Adm'r, 304, 321. v. Drewry, 191. v. Fleming, 401. v. Forney, 267. v. Fry, 371. Com. v. Gibson, 377. v. Green, 380. v. Holmes, 175. v. Kendig, 34, 73. v. Lamar, 43, 390. v. Longenecker, 377. v. Oblender, 401. v. Overby, 219. v. Pray, 200, 214, 379. v. Ramsay, 64, 401. v. Roberts, 395. v. Snick, 401. v. Slocum, 396. v. Sommers, 214. v. Stambaugh, 263. v. Straton, 371. v. Swope, 211, 373. v. Toms, 200. v. Webster, 399. Commonwealth ex rel. Davy v. Stockton, 369. Commonwealth of Virginia v. Chesapeake Co., 279. Commonwealth, to Use of Bellas, v. Vanderslice, 146, 147, 225, 226. Commonwealth, to Use of Shaff- ner's Adm'r, v. Rogers, 250. Comstock v. Creon, 225. v. Gage, 69. Conaway v. Sweeney, 111. Conduitt v. Ryan, 194. Congdon v. Read, 129. Conger v. Babbet, 72, 360. Conklin v. Conklln, 198. Conn v. Coburn, 293, 303, 307. Connecticut General Life Ins. Co. v. Chase, 67. Connecticut Mut. Life Ins. Co. v. Bowler, 209. v. Scott. 202, 210. Conner v. Reeves, 217. v. State, 398. Connolly v. Dolan, 332. Conolly v. Kettlewell, 7. Conover v. Hill, 326, 339, 350. v. Stillwell, 50. Consalus, In re, 377. 430 CASES CITED. [The figures refer to pages.] Considine v. Considine, 313. Consociated Presbyterian Society Of Green's Farm v. Staples, 96. Consolidated Co. v. Mnsgrave, 312. Constant v. Matteson, 290. Conwell v. McCowan, 82, 279, 281. Cook v. Berry, 16. v. Caraway, 63. v. Chapman, 384, 385. v. Ligon, 380. v. Southwick, 362. Cooke v. Nathan, 128. v. Orne, 26, 29, 30. Coolidge v. Wiggin, 324. .. Coombs v. Harford, 167, 190. Coon v. McCormack, 380. Coonradt v. Campbell, 251, 381. Cooper, In re, 367. v. Jenkins, 278. e. Joel, 254. v. People, 199. v. Rhodes, 380. v. Wilcox, 225. Coope v. Twynam, 41, 320. Coots v. Farnsworth, 243. Copeland v. Collins, 241. Cope v. Smith, 195. Corbet v. Evans, 126. Corbett v. Cochran, 95. Corey v. White, 281. Corielle v. Allen, 181. Corkins v. Collins, 86. Corlies v. Estes, 153. v. Fleming, 241. v. Howe, 365. Cornell v. Prescott, 19, 293. Cornett v. Hafer, 360, 362. Cornwall v. Gould, 294. Cornwell v. Holly, 181. Cornwell's Appeal, 289. Corporation of Adjala v. McEl- roy, 191. Cosgrave Brewing Co. v. Starrs, 259. Cosgrove v. Cummings, 49. v. McKasy, 297. Coster v. Mesner, 180. Cotton v. Alexander, 293, 298. Cottrell's Appeal, 277, 285, 286 287. Couch v. Waring, 244. Coughran v. Bigelow, 125. Coulhart v. Clementson, 208. County of Pine & Willard, 201. County of Redwood v. Tower, 140. County of Scott v. Ring, 122. Couturier v. Hastie, 92. Covert v. Shirk, 34. Covey v. Neff, 278, 294. Cowan v. Baird, 36. v. Duncan, 278, 323. v. Roberts, 29, 37, 54, 134. Cowdin v. Gottgetreu, 103, 105. Cowell v. Edwards, 339. Cowenhoven v. Howell, 86. Cowles v. Peck, 48, 51, 128. v. Townsend, 80, 131. Cowper v Smith, 237. Cox v. Brown, 145. v. Hartranft, 386. v. Jeffries, 198. v. Mobile Co., 181. Coykendall v. Constable, 195. Cozzens v. Brick Co., 47. Craft v. Isham, 32, 33, 144. Crafts v. Mott, 19, 81. Cragoe v. Jones, 249. Craig v. Craig, 299, 300. v. Parkis, 221, 222, 223. v. Phipps, 21, 274. Cramer v. Tittle, 61, 64. Crandall v. Bank, 163. Crane v. Andrews, 134. v. Newell, 193. v. Wheeler, 101. Crane Co. v. Specht, 118. Cranmer v. McSwords, 316, 317. Craven v. Freeman, 347, 348. Crawford v. Foster, 36. v. Gaulden, 141, 229. v. Howard, 31, 373. v. Kirksey, 325. v. Richeson, 277. v. Stirling, 78. CASES CITED. [The figures refer to pages.] 431 Crawn v. --Com., 201. Craythorne v. Swinburne, 6, 302, 321, 322, 324. Creager v. Brengle, 286. Creath v. Sims, 176. Crenier v. Higginson, 121, 130, 209. Crim v. Fleming, 184, 226, 227. Crisfield v. Murdock, 344, 346. v. State, 277, 305. Crist v. Burlingame, 121, 125, 130. Crittenden v. Fiske, 28, 130. Crocker v. Gilbert, 120. Croft v. Insurance Co., 92. v. Moore, 339. Cromer v. Cromer, 287, 312, 313. Cromwell v. Hewitt, 362. Crosby v. Crafts, 290. t. Wyatt, 153, 155, 293, 348. Cross v. Ballard, 7. v. Bank, 42. v. Petree, 80. v. Richardson, 86. v. Bowe, 260. Crounse v. Bailroad Co., 384, 385. Crozier's Trustees v. Grayson, 300, 314. Cruger v. Burke, 136. Crum v. Wilson, 233, 255. Crystal Lake Tp. v. Hill, 40. Cudaby Packing Co. v. Shepard, 157. Culbertson v. Smith, 360, 363. v. Wilcox, 149, 151. Culliford v. Walser, 251, 252. Cullum'v. Emanuel, 231. Culver t. Real Estate Co., 62. Cumming v. Brown, 370. v. Hackley, 301, 330. Cummings v. Little, 149, 150, 151, 224, 231. v. Macy, 285. v. Mugge, 267. Cummins v. Garretson, 198. Cunningham v. Clarkson, 300. v. Tucker, 63. Cunningham v. Wrenn, 116, 222. Curan v. Colbert, 146. Curiae v. Packard, '247. Currier v. Baker, 340, 346. v. Fellows, 341, 360. Curry v. Hale, 16. Curtis v. Blair, 111. v. Brewer, 271. v. Brown, 94, 100. v. Hubbard, 162. v. Parks, 327, 342. v. Smallman, 128, 222. Cushing v. Cable, 118. Cutler v. Roberts, 37, 38, 39, 40. Cutter v. Emery, 327, 343. Dahlman v. Hammel, 55, 57, 109. Daigle's Succession, 19. Dair v. U. S., 38. Dale v. Com., 400. Dallas Homestead & Loan Ass'n v. Thomas, 139, 221. Dalton v. Miami Tribe, 64. Daly v. Com., 191. Damb v. Hoffman, 168. Dampskibsaktieselskabet Habil v. Fidelity Co., 306. Damron v. Sweetser, 383. Dana v. Parker, 257. Dance v. Girdler, 206. Dangler v. Baker, 70. Daniel v. Ballard, 338, 339, 343. v. Hunt, 289. v. Joyner, 138. Daniels v. Barney, 59, 72. Danker v. Atwood, 46. Danvers Farmers' Elevator Co. v. Johnson, 122, 189. Darby v. Bank, 49, 195, 196. Darrah v. Osborne, 6. Darst v. Bates, 101, 278, 289, 318. Dart v. Sherwood, 29, 264, 272. Darwin v. Rippey, 164. Davenport v. Banking Co., 227. v. Olmstead, 273. Davey v. Prendergrass, 176. Co. 432 Davidson v. Cooper, 153, 164. Davies v. Humphreys, 302, 314, 335, 349. Davis v. Blackwell, 79. v. Com'rs, 236, 237. v. Emerson, 332, 333. v. Harding, 387. v, Maynard, 147. v. Mikell, 146, 147, 151. v. Patrick, 84, 99, 100, 104, 105. v. People, 173. v. Railroad Co., 63. v. Schlemmer, 280, 284. v. Starts, 236. v. Stokes County, 308. v. Stout, 182. v. Toulmin, 341. v. Van Buren, 123. v. Wells, 27, 29, 30, 55, 115, 118, 146. Davis Sewing Mach, Buckles, 70. v. Jones, 28. v. Mills, 145. v. Richards, 27, 49. Dawes v. Shed, 239. Dawson v. Bank, 228. v. Lee, 280. v. Pettway, 322. v. State, 123. Day v. Cloe, 94, 95. v. Elmore, 134, 221, 229, v. Ramey, 225. v. Stickney, 300. v. Swann, 304. Deal v. Cochran, 183. Dean v. Walker, 47. Dearborn v. Parks, 95. v. Sawyer, 146. Deblois v. Earle, 187. De Camp v. Bullard, 118. Decker v. Anderson, 32. v. Gaylord, 187. v. Pope, 293. De Cortes v. Jeffers, 318. De Cremer v. Anderson, 26. CASES CITED. [The figures refer to pages.] Dedham Bank v. Chickering, 191, 193. Dee v. Downs, 85. Deering v. Moore, 251. v. Winchelsea, 321, 326, 391, 346. Degnon-McLean Const. Co. v. Trust Co., 268. De Greiff v. Wilson, 275. Deisher v. Genre, 270. Deitzler v. Mishler, 19, 284. Delaplaine v. Hitchcock, 147. Delaware, L. & W. . R. Co. v. Burkhard, 177. v. Oxford Co., 314. Delo v. Banks, 267. Demeritt v. Bickford, 90. Deming v. Board, 7. v. Norton, 171. Demott v. Stockton, 289. Dempsey v. Bush, 277, 285, 288. Dendy v. Gamble, 116. Denio v. State, 211. Dennis v. Gillespie, 326, 341, 346. v. Piper, 180. Dennison v. Soper, 298, 299. Denster v. McCamus, 249. Denton v. Jackson, 84. Deobold v. Oppermann, 250, 378. Depeyster v. Hildreth, 225. Deposit Bank of Midway's As- signee v. Hearne, 68. De Reszke v. Duss, 117. Derosset v. Bradley, 330, 331. Derry Bank v. Baldwin, 264. Desilver's Estate, 193. Des Moines Sav. Bank v. Colfax, 280. Detroit Bank v. Ziegler, 212. Devine v. State, 393, 399. Dewey v. Investment Co., 224. v. Reed, 163. Dewitt v. Boring, 306. Dexter v. Blanchard, 86, 95, 100. v. Ohlander, 113. Dias v. Bouchaud, 283. Dickason v. Bell, 233. CASES CITED. [The figures refer to pages.] 433 Dick v. Crowder, 125. v. Stoker, 393. Dickerson v. Turner, 293, 302. Dickey's Representatives v. Rog- ers, 297, 299. Diehl v. Davis, 172. Diescher v. Fulham, 151. Dignan v. Shields, 75. Dillenbechk v. Dygert, 305. Dillman v. Nadelhoffer, 22, 223. Dillon v. Russell, 171, 195, 224. v. Scofleld, 277, 281. Dills v. Cecil, 229. Dilts v. Parke, 85, 97. Dinlcgrave's Succession, 314, 315. Dinsmore v. Tidball, 67, 202. District of Columbia v. Gallaher, 121. Dixon v. Bwing, 225. v. Spencer, 172, 177. D. M. Osborne & Co. v. Baker, 92, 109. v. Gullikson, 50. Dobbin v. Bradley, 210, 213. Dobie v. Fidelity Co., 137. Dobyns v. McGovern, 206. Dock v. Boyd, 96. Dr. Kock Vegetable Tea Co. v. Gates, 214. Dodd v. Dreyfus, 172. v. State, 216. v. Wilson, 283. v. Winn, 253, 339. Jjte&'ge v. Meyer, 169. v. Perkins, 268. Dodgson v. Henderson, 171, 180. Doepfner v. State, 372. Dolbeer v. Livingston, 41. Dolby v. Jones, 381. Dole Bros. Co. v. Cosmopolitan Co., 76. v. Preserving Co., 39. Dole v. Young, 145. Doll v. Crume, 160. Domestic Sewing Mach. Co. y. Saylor, 135. v. Webster, 154. Donahue v. Johnson, 385. CHILDS' StTKETYSHIP— 28 Donally v. Wilson, 246. Doniphan v. State, 398. Donley v. Camp, 134, 139. Donnell Mfg. Co. v. Jones, 76, 202. Dooley v. Lackey, 280. Doolittle v. Dwight, 300, 304, 341. Doom v. Sherwin, 357. Doremus v. Selden, 304. Dorman v. Bigelow, 108, 141. Dorrington v. Minnick, 299. Dorriss v. Carter, 384. Dorsett v. Lambeth, 268, 270. Dorsey v. Creditors, 314. Dougherty v. Peters, 138. Doughty v. Bacot, 150. Douglas County v. Bardon, 39, 43. Douglass' Appeal, 289. Douglass v. Ferris, 207, 379. v. Howland, 109, 275. v. Mayor, 214, 377. v. Reynolds, 27, 56, 130, 144, 227. v. Snow, 113. v. Spears, 109. Dover Stamping Co. v. Noyes, 126. Dover v. Twombly, 188, 190. Dowbiggen v. Bourne, 286. Dowdy v. Blake, 282. Downer v. Chesebrough, 112. v. Dana, 272. Downey v. Hinchman, 93. v. O'Donnell, 271. Downing v Linville, 296. Dows v. Swett, 101. Dow v. Tuttle, 249. Dozier v. Lea, 151. v. Lewis, 277. Drabek v. Grand Lodge, 66. Drakeley v. Gregg, 78. Drake v. Seaman, 108. v. Sherman, 228. Draper v. Pattina, 106. v Snow, 54. v. Weld, 364. Draughan v. Bunting, 91, 345, 347. v. State, 396. 434 CASES CITED. [The figures refer to pages.] Drew v. Lockett, 284, 287, 288. Driscoll v. Blake, 262. Driskell v. Mateer, 266. Driskill v. Washington County, 198. Drolesbaugh v. Hill, 369. Drovers' Live Stock Commission Co. v. Packing Co., 71. Drucker v. Heyl-Dia, 29. Drummond v. Prestman, 275. v. Yager, 323. Drury v. Fay, 262. v. Young, 110. Dry v. Davy, 210. Dry Goods Co. v. Yearont, 125. Dubberly v. Black, 293. Dubois v. Mason, 363. Dubuisson v. Folkes, 180. Ducker v. Rapp, 171, 175, 250. Dufau v. Wright, 187. Duffy v. Wunsch, 85. Dugger v. Wright, 199, 219, 321. Duke v. State, 396. Dull v. Bricker, 97. Dumont v. U. S., 216. Dunbar v. Brown, 145. Duncan v. Bank, 281. v. Fox, 288. v. Heller, 26, 28. v. Keiffer, 294. v. Tindall, 394. Dun v. Garrett, 38. Dunham v. Downer, 146, 180. Dunkin v. Hodge, 312. Dunlap v. Foster, 281, 323. Dunn v. Parsons, 225, 231. v. Sparks, 348. v. Wade, 323, 324. Dupee v. Blake, 184, 209. Durand v. Bowen, 223. Durbin v. Kuney, 348. Durham v. Bischof, 34. v. Manrow, 9. Dusenbury v. Hoyt, 238. Dussol v. Bruguiere, 304, 337, 338, 350. Dustin v. Hodgen, 118. Dutton v. Pyle, 223. Dwelley v. Dwelley, 121. Dwenger v. Geary, 121. Dwight v. Linton, 152, 364. v. Williams, 142. Dwinnell v. McKibben, 176. Dye v. Dye, 142, 239. v. Mann, 318. Dyer v. Graves, 86. v. Jacoway, 290. Dykers v. Townsend. 110, 111. Eagle M. & R. Mach. Co. v. Shat- tuck, 102. Eakin v. Knox, 325. Eason v. Petway, 147. Easterly v. Barber, 323, 324, 338, 339. Eastern R. Co. v. Loring, 167. Easter v. White, 91. Eastman v. Foster, 291. v. Plumer, 243, 245. Easton v. Ormsby, 237. Eastwood v. Kenyon, 98. Eaton v. Lambert, 314, 316, 338. v. Mayo, 127. v. Whitmore, 179. Ecker v. Bohn, 113. v. McAllister, 112. Eckert v. Louis, 157, 164. Eddy v. Davidson, 104. v. Roberts, 86. v. Stanton, 142. Edelen v. White, 323, 324. Eden v. Chaffee, 95. Edmonds v. Sheahan, 331, 332. v. Thomas, 182. Edmondston v. Drake, 258. Edmunds' Assignee v. Harper, 272. Edwards v. Coleman, 155. v. Dargan, 141. v. Gunn, 393. Edwards County v. Jennings, 237. Ege v. Barnitz, 136, 221. Eickhoff v. Eickenbary, 142. Eilbert v. Finkbeiner, 111, 360. CASES CJTED. [The figures refer to pages.] 435 Eising v. Andrews, 240. Eisley v. Horr, 321. Eisner v. Keller, 56. Elbert v. Jacoby, 321. Eldar v. Warfleld, 51. Elder v. Kutner, 382. v. Warfleld, 105. Electric Appliance Co. v. Fidelity Co., 256. Elevator Co. v. Railroad Co., 62. Elfe v. Gadsden, 106. Elkinton v. Newman, 284. Ellesmere Brewing Co. v. Cooper, 162. Ellett v. Brltton, 108. Elliott v. Black, 386. Ellis v. Adderton, 262. y. Bibb, 185. v. Deadman, 106. v. Emmanuel, 135, 269. v. Johnson, 16. • v. Jones, 32. Ellison v. Jackson, 108. Ellsworth v. Harmon, 259, 260. Elmendorf v. Whitney, 206. Elting v. Vanderlyn, 56. Elwood v. Deifendorf, 149, 151, 178, 301, 317. Ely v. Bibb, 127. Emerson v. Aultman Co., 9, 108. v. Slater, 90, 100. Emerson-Newton Implement Co. v. Cupps, 71. Emery v. Burbank, 112. v. Hobson, 355. v. Vinall, 316. Emmert v. Thompson, 277. Emmons v. Meeker, 41. Endicott v. Penny, 110. Endress v. Ent, 75. English v. Darley, 173. v. Landon, 141. Ennis v. Crump, 264. v. Waller, 78, 110. Eno v. Crooke, 281. Enright v. Falvey, 203. Epenbaugh v. Gooch, 384. Equitable Life Co. v. Coats, 212. Long, Erie Co. Sav. Bank v. Coit, 50. Ernst v. Hogue, 386. Erwin v. Downs, 235. v. Lamborn, 145. Eshleman v. Bolenius, 346. Espalla v. Wilson, 97. Estabrook v. Gebhart, 95. Estey v. Murphy, 32. Eureka Sandstone Co, 39, 43. Evans v. Bell, 22, 128. v. Daugherty, 36. v. Evans, 348. v. Graden, 166. v. Keeland, 65. v. McCormick, 26, 32. v. Railroad .Co., 140. v. Raper, 227. v. Williamson, 158. Evansville Nat. Bank v. Kauf- mann, 22, 49, 106, 115, 117, 118, 258. Evarts v. Steger, 46. Everett v. U. S., 171. Everly v. Rice, 231. Everson v. Gere, 260. Ewan v. Brooks-Waterfield Co., 363. Ewen v. Wilbor, 118. Ewing's Adm'r v. Ferguson's Adm'r, 237. Ewins v. Calhoun, 92. Exchange Bldg. & Inv. Co. v. Bayless, 184. Exeter Bank v. Rogers, 186. v. Stowell, 264. Fagan v. Jacocks, 341, 351. Fagin v. Goggin, 307. Fahnestock v. Gllham, 264. Fairbanks v. Snow, 72. Fairchild v. Hedges, 375. Faires v. Cockerel], 293, 348. v. Lodanc, 104. Fales v. Filley, 37. 436 CASES CITED. [The figures refer to pages.] Fall River Nat. Bank v. Slade, 246. Famulener v. Anderson, 42. Farmers' Bank v. Raynolds, 179, 229. v. Tatnall, 26, 30. Farmers' Nat. Bank v. Van Slyke, 65. Farmers' & Drovers' Nat. Bank v. Braden, 66. Farmers' & Mechanics' Bank v. Evans, 162. v. Kercheval, 28. v. Polk, 75. Farmers' & Traders' Nat. Bank v. Snodgrass, 351. Farmington Sav. Bank v. Buzzell, 78. Farnsworth v. Clark, 51. Farrar v. Kramer, 168. v. U. S., 267. Farris v. Martin, 109. Farrow v.. Respess, 21, 139. Farwell v. Ensign, 323. v. Lowther, 109. v. Sully, 31. Fasnacht v. Winkelman, 187. Fassin v. Hubbard, 152. Father Matthew Young Men's Total Abstinence & Benevolent Soc. v. Fitzwilliams, 264. Faulkner v. Faulkner, 364. v. Gilbert, 57. Faurot v. Gates, 340. Favorite v. Stidham, 50, 51. Fawcett v. Freshwater, 180. Fawcetts v. Kimmey, 277, 284. Fay v. Richardson, 35. v. Smith, 163. v. Tower, 179, 185. Feamster v. Withrow, 317. Fear v. Dunlap, 362. Fears v. Story, 99. Featherstone v. Hendrick, 49. Feazle v. Dillard, 296. Fegley v. McDonald, 243. Fellows v. Prentiss, 25, 183. Felton v. Bissel, 299. Fennell v. McGuire, 207. Fentum v. Pocock, 365. Ferguson v. Carson, 305. v. Hirsch, 218. v. Turner, 229. Ferguson's Adm'r v. Carson, 284. Fernau v. Butcher, 382. Ferrell v. Maxwell, 91, 327. Ferris v. Walsh, 126. Ferry v. Curchard, 255. Fertig v. Bucher, 37. Fessenden v. Summers, 360. Fetrow v. Wiseman, 60. Fewlass v. Abbott, 253. , v. Keeshan, 207. Fickett, In re, 290. Fidelity Mut Life Ass'n v.. Dew- ey, 168. Fidelity & Casualty Co. v. Bank, 203. v. Crays, 315. v. EickhofE, 315. v. Lawler, 90. Fidler v. Hershey, 195/ Field v. Brokaw, 182. v. Rawlings, 221. Fielden v. Lahens, 124. Fielding v. Waterhouse, 344. Field & Co. v. Wallace, 371. Fifth Nat. Bank of Cincinnati v. Woolsey, 284. Files v. McLeod, 102. Finch v. State, 199, 207. Findlay's Ex'rs v. Bank, 295. Findley v. Hill, 183. Fink v. Mahaffy, 280. First Bank of Biddeford v. Mc- Kenney, 184. First Nat. Bank v. Babcock, 11, 138, 139, 140. v. Breese, 270. v. Buchanan, 178. v. Carpenter, 79. v. Chalmers, 96. v. Fiske, 152. v. Gaddis, 85. v. Gerke, 125, 167. v. Harris, 177. CASES CITED. [The figures refer to pages.] 437 First Nat. Bank v. Homesley, 196. y. Jones, 185. v. Leavitt, 177. v. Lineberger, 181, 184. v. Marshall, 359, 362. v. Morgan, 79. v. Parsons, 142, 225, 231. v. Payne, 363. v. Peltz, 228. v. School Dist. 118. v. Skidmore, 149, 171. v. Smith, 198. v. Terry, 70. v. Waddell, 131. v. Wheeler, 289. v. Whitman, 57, 154, 185. v. Winchester, 62. v. Wood, 136. Fischer v. Gaither, 338, 339. Fishback v. Weaver, 298, 308, 351. Fisher v. Ass'n, 279. v. Shattuck, 255. v. Stockebrand, '247. Fish v. Glover, 196. Fisk v. Comstock, 329. v. Stone, 26. Fiske v. McGregory, 98. Fitzgerald v. Staples, 46. Flack v. Neill, 239. Flagg v. Geltmacher, 16. Flanagan v. Duncan, 346. v. Post, 351. Flannagan v. Cleveland, 380. Flannery v. Chidgey, 85. Fleece v. State, 395. Fleetwood v. Charnock, 325. Fleming v. Beaver, 285. Flentham v. Steward, 135, 139. Fletcher v. Austin, 36, 37, 44. v. Edson, 299. v. Gamble, 174. v. Grover, 19, 334. v. Jackson, 275, 304, 332, 337, 345, 350. Floyd v. Harrison, 86. Flynn v. Insurance Co., 256. v. Mudd, 149, 151, 171. Fogarty v. Ream, 378. Folger v. Palmer, 137. Folsom v. Squire, 221. Folz v. Tradesmen's Co., 268. Fond du Lac v. Moore, 63. Forbes v. Harrington, 321. v. Jackson, 280. Force v. Elizabeth, 158. Ford v. Loomis, 385. v. Mitchell, 139, 362. v. Stobridge, 29& Forest Oil Co.'s Appeals, 248. Forest v. Shores, 298. Fort Wayne & B. Turnpike Co. v. Deam, 264. Forward v. Marsh, 214. Foss v. Chicago, 224, 277. Foster v. Balch, 293. v. Barney, 222. v. Com., 263. v. Johnson, 325, 329, 333. v. People, 263. v. Tolleson, 141. v. Walker, 243. v. Wise, 199, 220. Fournier v. Cyr, 45, 46. Fowler v. Alexander, 152. v. Allen, 38. v. Brooks, 181, 185. v. Gordon, 140. v. Strickland, 305, 314. Foxworth v. Bullock, 235, 236. Frank v. Edwards, 167. Frankel v. Stern, 383. Franklin Bank v. Cooper, 65, 66, 74. v. Stevens, 65. Franklin County Nat. Bank v. Bank, 289, 291. Franklin Fire Ins. Co. v. Colt, 92. Franklin v. Franklin, 197. Franklin Life Ins. Co. v. Court- ney, 163. Franklin Sav. Bank v. Cochrane, 155. Fraser v. Little, 267. 438 CASES CITED. [The figures refer to pages.] Frazer v. Jordan, 177. Frazier v. Gains, 42, 157. Freaner v. Yingling, 229. Fred Heim Brewing Co. v. Haz- en, 164. Freehold Nat. Banking Co. v. Brick, 136, 230, 278. Freeman v. Davis, 74. v. Waxman, 211. French v. Bates, 269. v. Marsh, 221, 222, 223. Fresno Enterprise Co. v. Allen, 188. Freudenstein v. McNeir, 371. Frey v. Hebenstreit, 398. Friberg v. Donovan, 282, 323. Fridenberg v. Robinson, 175, 179. Fridge v. State, 263. Friedline v. State, 391. Friend v. Gin Co., 229. Frierson v. Williams, 80. Frink v. Express Co., 268. v. Peabody, 344. Frisch v. Miller, 65. Fritch v. Bank, 293. Frost v. Metal Co., 28. ' v. Mixsell, 247. v. Weathersbee, 129. Frow Estate, 281. Frownfelter v. State, 201. Fuld v. Brewing Co., 62. Fulkerson v. Brownlee, 284. Fullam v. Adams, 96. Fuller v. Davis, 401. v. Loring, 147. v. Scott, 55, 57, 362. v. Tomlinson, 229. Fullerton v. Hill, 360, 362, 364. v. Sturges, 42. Fulmer v. Seitz, 163. Fulton, Ex parte, 46. Furber v. Bassett, 153. Furnas v. Durgin, 299. Furness v. Bead, 169. Furnold v. Bank, 282. Furst & Bradley Mfg. Co. v. Black, 26, 30, 145. Fuselier v. Babineau, 331. G Gadsden v. Quackenbush, 187. Gage v. Bank, 140. v. Chicago, 42. v. Lewis, 134, 138, 215, 232. v. Sharp, 38. Gagen v. Stevens, 50. Gahn v. Niemcewicz's Ex're, 18, 152, 179. Gallagher v. People, 395. Gallaghre v. Nichols, 95. Galliher v. Galliher, 284. Gamage v. Hutchins, 185. Gammell v. Parramore, 139, 269. Gannett v. Blodgett, 278. Gano v. Bank, 26, 215. Gans v. Carter, 61. Gardiner v. Harback, 153, 154, 170. Gard v. Neff, 180. v. Stevens, 129. Gardner v. Cleveland, 298. v. Cooper, 78. v. Gardner, 180. v. King, 140. v. Van Norstrand, 174. v. Walsh, 163. v. Watson, 115, 129, 182. Garey v. Hignutt, 136. Gargan v. School Dist, 209. Garner v. Hudgins, 99. Garr v. Martin, 234, 243, 256. Garrett v. Insurance Co., 145. v. Reese, 206. Garrigue v. Keller, 80. Garvin v. Garvin, 285. Gary v. Cannon, 137. v. State, 42. Gasquet v. Dimitry, 47. v. Oakey, 308. v. Thorn, 139. Gass v. Stinson, 166, 193. v. Williams, 382. Gaston v. Barney, 246. Gates v. McKee, 121, 130. Gaussen v. U. S., 206. Gay v. Mott, 50. CASES CITED. [The figures refer to pages.] 439 Gay v. Murphy, 39. v. Ward, 194, 208. Geiger v. Clark, 26. General Nav. Co. v. Roltz, 125. Geneser v. Wissner, 152, 364. George v. Elms, 378. v. Hoskins, 90. Gerber v. Ackley, 369. German American Sav. Bank v. Fritz, 282, 285. German Bank v. Auth, 212. Germania Fire Ins. Co. v. Lange, 167. German Ins. & Sav. Inst. v. Vahle, 178. German Sav. Bank v. Roofing Co., 26, 135, 144, 146. Gerould v. Wilson, 76. Gerson v. Hamilton, 129. Getchell & Martin Lumber & Mfg. Co. v. Surety Co., 154, 221. Getty v. Schantz, 22, 223. Gibbons v. McCasland, 87. Gibbs v. Blanchard, 50, 102. v. Bryant, 304. v. Cannon, 143. v. Frost, 42. v. Johnson, 382. Gibson v. Mitchell, 350. v. Rix, 243. v. Shehan, 341. Giddens v. Williamson, 287. Gieseke v. Johnson, 309, 314, 317. Gilbert v. Henck, 223. v. Insurance Co., 204, 210. v. Luce, 199. v. Vail, 295. v. Wiman, 217. Gill v. Morris, 233, 255. v. Reed, 103. Gillen v. Peters, 82. Gillespie v. Torrance, 273. Gillett v. Wiley, 379. Gilliam v. Esselman, 138, 278. Gillighan v. Boardman, 50, 52, 108, 115, 143, 223. Gillilan v. Ludington, 196, 197, 198. Gilman v. Kibler, 48, 51. v. Lewis, 54. Gilpin v. Hord, 380. v. Marley, 359, 362. Giltinan v. Strong, 275. Gingrich v. People, 399. Gipson v. Ogden, 147, 149. Girard Life Ins. Co. v. Finley, 141. Gist v. Drakely, 362. Glasgow v. State, 395. Glasscock v. Hamilton, 136, 253, 325, 328, 339, 351. Glass v. Thompson, 231. Gleeson's Estate, In re, 381: Glenn v. Morgan, 171, 180. v. Statler, 71. Glenn County v. Jones, 166. Glickauf v. Hirschorn, 179. Globe Bank v. Small, 139. Glover v. Robbins, 157, 163. Goddard v. Mockbee, 96. v. Whyte, 281. Goddard's Estate,- 97. Godden v. Pierson, 88, 91, 310. Godfrey v. Rice, 309, 342. Goetz v. Foos, 98. Goff v. Bankston, 36. v. U. S., 268. Golding Sons Co. v. Pottery Co., 360. Golsen v. Brand, 299, 325. Goltra v. People, 134. Gomez v. Lazarus, 323. Goodall v. Wentworth, 19, 325, 328, 329, 338. Goodbar v. Lindsley, 383 Goode v. Burford, 201. Goodell v. Bates, 236. Goodkin v. Hoit, 378. Goodman v. Chase, 94. v. Felcher, 84. Good v. Martin, 51, 360, 362, 364. Goodwin v. Buckman, 221. v. Bunzl, 380. v. Simonson, 195. Goodwine v. State, 200. Goodyear Dental Vulcanite Co. v. Bacon, 44. 440 CASES CITED. [The figures refer to pages.] Goodyear v. Watson, 285, 286. Gordon v. Calvert, 207. v. Moore, 195, 252, 347. v. Saunders, 110. Gorham v. Keyes, 59. Gossett v. Cashell, 64. Gossin v. Brown, 277, 284. Goswiler's Estate, In re, 265. Goudy v. Gillam, 241. Gould v. Fuller, 335. v. Gould, 304. v. Steyer, 376. v. Trust Co., 18, .333. Gourdin v. Read, 34. v. Trenholm, 328, 331. Govan v. Moore, 233. Governor v. Dodd, 370. v. Lagow, 190. v. Pleasants, 370. v. Shelby, 275. Governor of Illinois v. Ridgway, 123. Governor, to Use of Chambers, v. Witherspoon, 74. Governor, to Use of Hannah, v. Perkins, 134. Governor, to Use of Henderson, v. Matlock, 74. Governor, to Use of Thomas, v. Lagow, 163. Grabfelder v. Willis, 175. Grady v. O'Reilly, 277. Graff v. Kahn, 272. Grafton Bank v. Kent, 149. v. Woodward, 152, 171, 181. Graham v. Bradley, 223. v. State, 74. Grant v. Naylor, 258. v. Ridsdale, 128. v. Shaw, 97. v. Smith, 159, 168, 169. v. Wolf, 104. Graves v. Bank, 65, 68. v. Bulkley, 275. v. Tucker, 70. Gray v. Bowls, 304. v. Brown, 378. Gray v. Com., 396. v. Cook, 267. v. McDonald, 297. v. School District, 64. v. Seckham, 130, 238. v. State, 396. Gray's Ex'rs v. Brown, 72, 153, 155. Grayson, Appeal of, 171. Great Falls v. Hanks, 206. Greaves, In re, 87. Greely v. Dow, 182. Green v. Blunt, 225. v. Brookins, 90. v. Conrad, 273. v. Creswell, 90. v. Dodge, 289. v. Kindy, 76. v. Lake, 181. v. Milbank, 287, 342. v. Raftes, 147. v. Shepherd, 51. « v. Thornton, 50. v. Wardwell, 263. v. Young, 207. Greenawalt v. Kreider, 193, 195. Green Bay & M. R. R. Co. v. Union S. Co., 61. Greene v. Bates, 177. v. Burton, 99. v. Dodge, 145. Greene County to Use of Sims, v. Wilhite, 42. Green Fruit Co. v. Pate- & Co., 383. Greening v. Patten, 243. Greenlaw v. Pettit, 280. 282. Greenough v. Smead, 362. Greenwood v. Francis, 173. Greer v. Distilling Co., 51. v. Jones, 50, 51. v. Wintersmith, 294. Gregg v. Currier, 212. v. Wilson, 238. Gregory v. Gleed, 58, 108. v. Solomon, 153. v. Stark, 226. CASES CITED. [The figures refer to pages.] Gridley v. Capen, 7, 215, 269, 441 271. Grieff v. Steamboat, 278. Griesmere v. Thorn, 229. Griffin v. Com'rs, 375. v. Kelleher, 339. v. Moore, 398. v. Seymour, 7. Griffis v. Bank, 289. Griffith v. Reynolds, 70, 71. v. Bundle, 257, 269. v. Sitgreaves, 255. Grimes v. Sherman, 295. Grim v. Semple, 52. Grisard v. Hinson, 229. Grissom v. Bank, 283. . Griswold v. Jackson, 231. v. Slocum, 362. Grocers' Bank v. Kingman, 73, 140. Grocers' Bank v. Penfield, 366. Grommes v. Trust Oo., 168. Gross v. Davis, 317, 332, 339. v. Parrott, 172. Grover v. Hoppock, 139. Grubb v. Bullock, 400. Grubbs v. Wysors, 279. Guarantee Co. v. Bank, 205. Guardian Fire & Life Assur. Co. v. Thompson, €6. Guggenheim v. Rosenf eld, 92, 272. Guild v. Butler, 149, 150, 171, 224, 237. v. Conrad, 91. v. McDaniels, 228. Gum v. Swearingen, 219. Gumz v. Geigling, 152, 359, 364. Gunn v. Geary, 125. v. Madigan, 120. Gunnis v. Weigley, 254. Guthrie v. Carpenter, 164. v. Ray, 277. Gutta Percha & Rubber Mfg. Co. v. Benedict, 268. Guynn v. McCauley, 113. Gwynne v. Bumell, 201. Gwynn v. Gwynn, 61. H Habersham v. Sears, 371. Hacker's Appeal, 46. Hackett v. Bank, 160. Haden v. Brown, 136. Hagadorn v. Stronach Co., 103. Hagey v. Hill, 184. Hagler v. State, 154. Haines v. Dennett, 157, 164. Halbert v. State, 374. Halderman v. Woodward. 141. Hale v. Dressen, 49. v. Wetmore, 137. Hall v. Alford, 105. v. Auburn Co., 62. v. Bardwell, 182. v. Cushman, 352. v. Hall, 19, 282, 302. v. Hoxsey, 137, 284. v. Jones, 285. v. Long, 82. v. Monroe, 386. v. Nash, 299. v. Parker, 34, 39, 44. v. Robinson, 351. v. Smith, 37, 39, 76, 298. v. Soule, 107. v. State, 78. v. Taylor, 327. v. Weaver, 7, 170. Hall's Adm'r v. Oreswell, 315. Halliburton v. Carter, 313. Halliday v. Hart, 182. Hallock v. Yankey, 173. Halloway v. Blum, 258. Halsey v. Murray, 30S, 342. Halstead v. Brown, 180. Hamar v. Alexander, 93. Hamblin v. McCallister, 197. Ham v. Greve, 66. Hamill v. Hall, 96. Hamilton v. Bell, 382. v. Dunklee, 398. v. Johnston, 280, 302, 307, 323. v. Prouty, 183. v. Van Rensselaer, 118, 187. 442 CASES CITED. [The figures refer to pages.} Hammond v. Chamberlin, 128. Hampshire Manufacturers' Bank v. Billings, 248. Hampton v. Phipps, 291, 352. Hamrick v. Barnett, 196. Hance v. Hair, 241. Hancock v. Bryant, 198. v. Council, 113. Handley v. Heflin, 350. Hand Mfg. Co. v. Marks, 170, 199. Handy v. Land Co., 381. Haney v. People, 254, 390. Hangsleben v. People, 400. Hannum v. State, 396. Hansford v. Perrin, 247, 382. Hanson v. Crawley, 157, 164. v. Manley, 246. Harbaugh v. Albertson, 264. Harbord v. Cooper, 259, 260. Hardcastle v. Bank, 280, 285. Harden v. Carroll, 328. Hardin v. Branner, 301. Harding v. Kuessner, 380. v. Tifft, 246, 247. Hardman v. Bradley, 106. Hardwick v. Wright, 231. Hardy v. Blazer, 95, 99. v. TJ. S., 391. Hare v. Grant, 306, 315. v. Marsh, 380. Harger v. McCullough, 305. Hargreave v. Smee, 129. Hargreaves v. Parsons, 94. Hargroves v. Cooke, 54, 108. Harker v. Irick, 377. Harlan v. Sweeny, 279. Harley v. Stapleton's Adm'r, 59, 235, 308. Harmon v. Hale, 149, 152, 265. Harmony Nat Bank's Appeal, 289. Hamer v. Batdorf, 244. Harney v. Laurie, 254. Harnsberger's Ex'r v. Geiger, 176. Harnsberger v. Yancey, 43, 278. Harper v. Kemble, 305. v. Knowlson, 333. Harper's Adm'r v. McVeigh's Adm'r, 298, 299. Harp v. Osgood, 392. Harrah v. Jacobs, 305. Harrington v. Brown, 52. v. Dennie, 393, 399. Harris v. Babbitt, 188. v. Brooks, 151, 152, 265. v. Carmody, 255. v. Clap, 268. v. Douglass, 339. v. Eldridge, 7. v. Ferguson, 321, 322, 339.. T. Frank, 84, 103, 286, 305. v. Harris' Ex'r, 49. v. Hayes, 238. v. Regester, 37. v. State, 391. v. Taylor, 169. v. Warner, 323. Harrisburg Savings & Loan Ass'n v. Guaranty Co., 167. Harrison v. Phillips, 341, 352. v. Sawtel, 90. v. Turbeville, 158. v. Wilkin, 262. Harrison's Ex'r v. Price, 196. Hart v. Clouser, 158. v. Longfield, 9. v. Tallmadge, 92. v. U. S., 203. Hartley v. Colquitt, 398. v. Corboy, 157. v. Sanford, 91. v. Varner, 104. Harts v. Wendell, 387. Hartwell v. Smith, 277, 281, 323. Harvey v. Bank, 125. Harwood v. Johnson, 220. v. Jones, 98. v. Kiersted, 48, 56, 57, 220. Haseltine v. Guild, 293, 295. Hassinger v. Solms, 304. Hatch v. Attleborough, 214, 220. v. Elkins, 274. v. Hobbs, 130, 131. v. Norris, 19. CASES CITED. [The figures refer to pages.] 443 Hatchett v. Pegram, 308, 342. Hately v. Pike, 363. Hatfield v. Merod, 295. Haven v. Chicago Co., 49. Havens v. Lathene, 375. v. Willis, 288. Havis v. State, 398. Hawkins v. Chace, 110. v. Mims, 153. v. New Orleans, 209. v. Ridenhour, 141. Hawley v. Gray Co., 276. Hayden v. Cabot, 316, 318. v. Crane, 129, 216, 221. v. Thrasher, 137, 327, 339, 344. x v. Weldon, 260. Haydenville Sav. Bank v. Par- sons, 180. Hayer v. Comstock, 313. Hayes v. Burkam, 85. v. Gravel Co., 384. v. Josephi, 248. v. Wells, 183. Hays v. Columbus, 285. v. Ward, 81, 137, 138, 149, 225. Hayward v. Fullerton, 198. Hazard v. Griswold, 255. v. Irwin, 255. v. White, 179. Hazeltine v. Larco, 51. Hazelton v. Valentine, 293, 298. Head v. Levy, 371. Heard v. Merritt, 170. Hearing v. Dittrnan, 85, 95, 99. Heath v. Bank, 264. v. Gay, 268. v. Shrempp, 31. v. Van Cott, 360. Heaton v. Eldridge, 112. Hecht v. Skaggs, 350. v. Weaver, 207. Hefferlin v. Krieger, 194. Hefner y. Vandolah, 78. Heidenheimer v. Brent, 214. v. Mayer, 72. Heidt v. Minor, 370. Heims Brewing Co. v. Flannery, 61, 62. Heitz v. Atlee, 244. Held v. Bagwell, 31. Helios-Upton Co. v. Thomas, 52. Hellams v. Abercrombie, 318. Helm's Adm'r v. Young, 291. Helt v. Whittier, . 380. Henderson v. Coover, 200, 214. v. McDuffee, 19, 322. v. Marvin, 169. v. Matlock, 74. v. Rice, 50. Henklenaan v. Peterson, 117. Henricus v. Bnglert, 256. Henry v. Compton, 137, 277. v. Indemnity Co., 221. Henry McShane Co. v. Padian, 130. Herbage v. McBntee, 359. Herman v. Juechner, 312. Hernandez v. Stillwell, 128. Herrick v. Swartwout, 226. Herring v. Woodhull, 354. Hertz v. Kaufman, 387. Hessell v. Johnson, 37, 39. Hesser v. Steiner, 235, 236. Hess' Estate, 53, 279, 348. Hessey v. Heitkamp, 58. Hetfield v. Dow, 102. Hetherington v. Hixon, 48. Hetten v. Lane, 200. Hevener v. Berry, 288. Hewitt, In re, 287. Hewitt's Adm'r v. Adams, 253 Heyman v. Dooley, 50. Hibbard v. McKindley, 384. Hibbs v. Blair, 74, 382. Hibert v. Lang, 273. Hichborn v. Fletcher, 308, 332, 342. Hickcock v. Bell, 276. Hickman v. Fargo, 39. Hick's Adm'x v. Bailey, 316. Hicks v. Randolph, 235. Hidden v. Bishop, 246. Higgins v. Mansfield, 383. v. Morrison, 345. Ui CASES CITED. [The figures refer to pages.] Higgins v. State,, 140. V. Watson, 54. High v. Cox, 266. Highland v. Anderson, 284. Hightower v. Moore, 207. v. Ogletree, 195. Higley v. Bergholz, 85. Hillary v. Rose, 143. Hill v. Bourcier, 227. v. Bull, 171. v. Calloway, 181. v. Calvert, 158. v. Dunham, 34. v. King, 285, 305. v. Manser, 284. v. Morse, 347. v. Sherman, 197. v. Sweetser, 36. v. Voorhies, 304. v. Wright, 294. Hilliard v. Hons, 129. Hill's Est/.te, In re, 298. Hinchman v. Rutan, 113. Hinckley v. Kreitz, 252, 282, 323, Hinds v. Ingham, 185, 241. Hinely v. Margaritz, 60. Hinsdill v. Murray, 341. Hinton v. Greenleaf, 18. Hippach v. Makeever, 50. Hiisch v. Carpet Co., 49. Hitchman v. Stewart, 332, 333, 340. Hobbs v. Barefoot, 369. Hodd v. Mathis, 380. Hodges v. Armstrong, 298, 305. v. Gewin, 177. v. State, 125. Hodgson v. Baldwin, 329. v. Shaw, 227. Hoey v. Jarman, 121. Hoffman v. Butler, 280. Hogaboom v. Herrick, 138. Hogan v. Bank, 84. Hoge v. Norton, 383. Hoggatt v. Thomas, 90. Holandsworth v. Com., 63. Holbrook v. Investment Co., 276. Holland v. Clark, 77. Holland v. Hoyt, 110. v. Teed, 209. Holler v. Richards, 85, 113. Holliman v. Carroll, 370. Hollingshead v. McKenzie, 85, 113. Hollingsworth v. Tanner, 225. Hollinsbee v. Ritchey, 308. Hollister v. Davis, 247, 272. Holloway's Assignee v. Rudy, 58. Holme v. Brunskill, 164, 213. Holmes v. Day, 243. v. Oil Co., 268. v. State, 46. v. Weed, 293, 316. Holt County v. Scott, 263. Home v. Brumskill, 159. Home Co. v. Holway, 69. Home Ins. Co. v. Holway, 68 204. Home Nat. Bank v. Waterman, 150, 172. Home Sav. Bank v. Traube, 167. Homes v. O'Conner, 217. Hommell v. Gamewell, 300. Hood v. Grace, 116. v. Hayward, 253. v. Mathis, 380. Hooker v. Blount, 244. v. Gooding, 141. v. Russell, 85, 93, 99, 106. Hook v. Richeson, 285. Hooks v. Bank, 239, 309. Hooper v. Hooper, 7, 47, 115, 118, 240, 241, 342, 348. Hoover v. Bpler, 278. v. McCormiek, 139. v. Mowrer, 341, 351. Hopewell v. McGrew, 382. Hopkins v. Carr, 102. v. Orr, 380. v. Richardson, 102. v. Spurlock, 195. Hoppes v. Hoppes, 137, 138. Hopson v. Axle Co., 260. Horan v. People, 369. Horn v. Bray, 327, 344. ! v. Whittier, 263. CASES CITED. [The figures refer to pages.] 445 Horton v. Manning, 362. v. State, 390. Hortsell v. State, 262, 391. Hosea y. Rowley, 176. Hoss v. Crouch, 225. Hotchkiss v. Barnes, 129. T. Piatt, 384. Hotham y. Stone, 287. Houck y. Graham, 47, 321, 343, 364. Hough v. Insurance Co., 140, 280. Houston y. Braden, 228. v. Bruner, 364. y. Hurley, 179, 225, 229, 231. Howard v. Brower, 113. y. Fletcher, 80, 131. v. Smith, 72. Howard County Com'rs v. Hill, 123. Howard Ins. Co. v. Silverberg, 252. Howell y. Field, 94. v. Seyier, 176, 181. Howe Mach. Co. v. Farrington, 229, 266. Howe y. Nickels, 27, 30, 32, 144, 145. v. Railroad Co., 300. Howe Sewing Mach. Co. v. Lay- man, 154, 167. Howes v. Martin, 316, 366. Howland v. White, 338. Hoxie y. Bank, 342. Hoy v. Bramhill, 334. Hoyt v. French, 179. v. Tuthill, 329. Hubbard v. Gurney, 152. v. Haley, 11. y. Hart, 178. y. Ogden, 180. y. Pace, 224, 227. Hubbell y. Carpenter, 146. Hubon y. Parks, 98. Hudson v. Miles, 66, 70, 138. Huey v. Pinney, 138, 141, 195. Huffmond v. Bence, 284. Huggins v. People, 254, 399. Hughart v. Spratt, 233. Hughes y. Lawson, 96, 97. v. Littlefleld, 45. v. Newsom, 386. v. People, 270. y. Peper Co., 127. y. State, 392. y. Warehouse Co., 182. Huie v. Bailey, 179. Hulett v. Soullard, 300. Hull y. Brown, 90. y. Myers, 287, 337. Hulme v. Coles, 174. Humboldt Sav. Soc. v. Wenner- hold, 191, 193. Humphrey v. Hitt, 229. v. Taggart, 386. Humphreys y. Crane, 141, 170. Hundley v. Filbert, 262. Hungerford v. O'Brien, 11, 139, 141. Hun v. Nichols, 76. Hunt y. Adams, 170. y. Bridgham, 141. v. Burton, 134. v. Ohambliss, 327. v. Daniel, 49.. v. Gardner, 168. v. Knox, 184. v. Postlewait, 180, 181. v. Roberts, 202. v. State, 270. v. U. S., 141. Hunter y. Clark, 141, 229. v. Dickinson, 139. v. Robertson, 241. Hunter's Adm'r v. Jett, 153, 179. Huntington y. Knox, 256. Huntress v. Patten, 72, 128. Hurd v. Barnhart, 383. v. Marple, 172. v. Railroad Co., 61. Hurley v. Brown, 107. Hursey v. Marty, 369. Hurt v. Ford, 91. Huscombe v. Standing Co., 255. Huse v. Ames, 330. Hutcherson y. Pigg, 214, 377. Hutchinson v. Woodwell, 125. 446 CASES CITED. [The figures refer to pages.] Hutchinson v. Wright, 153. Hutton v. Campbell, 225. Huyler's Ex'rs v. Atwood, 16, 96, 101. Hyde v. Miller, 308. v. Rogers, 225. v. Tracy, 329. Hydraulic Press Brick Co. v. Neumeister, 116. Hyer v. Smith, 169. Hyland v. Habich, 208. Hyner v. Dickinson, 61. I Ida County Sav. Bank v. Seiden- sticker, 188. Ide v. Churchill, 147. v. Stanton, 107. Ihrig v. Scott, 275. Iliff v. Weymouth, 197. Illinois Roofing & Supply Co. v. Gorton, 208. Ilsley v. Jones, 274. Imming v. Fiedler, 196. Importers' & Traders' Bank v. MeGhees, 289, 290. Ingalls v. Dennett, 298. v. Morgan, 226. Inge v. Bank, 172. Ingersoll v. Roe, 71. Ingles v. Sutliff, 182. Inglis v. State, 375. Ingraham v. Baldwin, 60. v. Bank, 201. Ingram v. State, 398, 399. Inhabitants of Alna v. Plummer, 111. Inhabitants of Colerain v. Bell, 201. Inhabitants of Farmington v. Ho- bert, 256. Inhabitants of Greenfield v. Wil- son, 369. Inhabitants of Hancock v. Haz- zard, 374. Inhabitants of Readfield v. Shav- er, 37, 39. Inhabitants of South Berwick v. Huntress, 41, 42. Inhabitants of Wendell v. Flem- ing, 31, 263. Inhabitants of Winthrop v. Soule, 203. Inkster v. Bank, 135. Irick v. Black, 288. Irish v. Cutter, 126, 360, 362. Irvine v. Adams, 149, 152. v. Brasfield, 141. Irving Nat. Bank v. Ellis, 80. Irwin v. Backus, 378. v. Kilburn, 115, 125. v. State, 390. Isaac Harter Co. v. Pearson, 69. Ives v. Bank, 224. v. Bosley, 364. v. Hulee, 380. v. McHard, 55. J Jack v. Morrison, 291. v. People, 63. v. Sinsheimer, 72, 125. Jackson v. Benson, 141. v. Cooper, 157. v. Fidelity Co., 242. v. Huey, 195. v. Johnson, 154. v. Patrick, 237. v. Tandes, 145. Jackson's Adm'r v. Jackson, 55. Jacob v. Hill, 190. Jacobs, Ex parte, 237. Jacobson v. Metzgar, 386. Jacques v. Fackney, 284. JafCray v. Brown, 57. Jain v. Giffin, 134. James v. Jacques, 138, 277. v. State, 268. Jamieson v. Holm, 8, 233, 249. Janes v. Scott, 143, 146. Jarratt v. Martin, 273. Jarvis v. Hyatt, 178. v. Wilson, 97, 358. Jefferson, v. Edrington, 281. CASES CITED. [The figures refer to pages.] 447 Jefferson v. Tunnel I, 29°,. Jefferson City Gaslight Co. v. Clark, 270. Jeffries v. Ferguson, 326. Jemison v. Governor, 252. Jenkins v. Clarkson, 183. v. Daniel, 171. Jenness v. Black Hawk, 274. Jennings v. Chase, 179. v. Hare, 286. v. Thomas, 3G4. Jennison v. Parker, 227. Jerauld v. Trippet, i47, 229. Jerome v. Ortinan, 49. Jeudevine v. Rose, 194. Jewell v. Mills, 369, 370. Jewett v. Cornforth, 304. v. Crane, 275. John A. Tolman Co. v. Hunter, 159. v. Means, 33. John M. Parker & Co. v. Guillot, 135, 175, 179. Johnson, Ex parte, 284. v. Bailey, 29, 30. v. Bank, 141, 183. v. Brown, 22, 164. v. Chapman, 21. v. Dodge, 110. v. Dodgson, 110. v. Elevator Co., 122. v. Flint, 169. v. Fuquay, 75, 199. v. Gilbert, 217. v. Hacker, 175. v. Harris, 137. v. Harvey, 350. v. Hicks, 379. v. Hobson, 212. v. Ivey, 247. v. Johnson, 43. v. Laserre, 49. v. McGruder, 111. v. McMillan, 267. v. Mills, 128, 247. v. Morris, 84. v. Reed, 380. V. Shepard, 224. Johnson v. Weatherwax, 37, 39, 15. v. Williams, 373. v. Willmarth, 55. v. Young, 17. v. Zink, 281. Johnson's Adm'rs v. Vaughn, 328, 337, 338, 339. Johnston v. Chapman, 21, 141. v. Gwathney, 74. v. Kimball Tp., 44. v. Maples, 377. v. May, 162. v. Patterson, 70. v. Searcy, 141. v. Smith, 263. Johnston Harvester Co. v. Mc- Lean, 42. Joliet & C. R. Co. v. Healy, 287. Jones v. Ashford, 128, 223. v. Bacon, 90. v. Bangs, 159, 163. v. Bank, 290, 359. v. Berryhill, 260, v. Blanton, 333, 338, 340, 343. v. Bradford, 331. v. Cooper, 103. v. Cottrell, 179. v. Crosthwaite, 235. v. Gallatin County, 263. v. Greenlaw, 142, 223. v. Hawkins, 225. v. Jones, 382. v. Joyner, 308, 311. v. Keer, 221. v. Knox, 238. v. Kuhn, 109. v. Letcher, 327, 344 v. Orchard, 312. v. Palmer, 108. v. Post, 107. v. Ritter, 51. v. Scanland, 263. v. Shorter, 90. v. State, 31, 395. v. Thayer, 44. v. Tincher, 136. v. U. S., 204. 448 CASES CITED. [The figures refer to pages.] Jones v. Ward, 185, 251. v. Whitehead, 197. Jones' Estate, In re, 207. Jordan v. Adams, 315. v. Dobbins, 34, 208. v. Wollen Co., 381. Joslyn v. Eastman, 248. v. Smith, 179. Josselyn v. Ames, 362. v. Edwards, 277. Joyce v. Joyce, 288. Joyner v. Cooper, 46. Judah v. Mieure, 308. v. Zimmerman, 166. Judge of Probate v. Heydock, 268. v. Mathes, 377. v. Sulloway, 134, 377. Judson v. .Gookwin, 260. Jungk v. Reed, 65. Junker v. Rush, 304. Justices of Inferior Court of Scriven County v. Ennis, 64. Kaighn v. Fuller, 149, 151. Kaler v. Hise, 180. Kamm v. Holland, 360. Kane v. Williams, 231. .Kansas City Terra-Cotta Lumber Co. v. Murphy, 76. Karr v. Porter, 95. Katz v. Moessinger, 305. Kauffman v. Com., 196. Kaufman v. Wilson, 196. Kay v. Allen, 26. v. Groves, 130. Keach v. Hamilton, 137. Kealhofer v. Emmert, 377. Kean v. McKinsey, 55, 57, 261. Kearnes v. Montgomery, 7, 152, 360, 361. Keate v. Temple, 104. Keaton v. Cox, 147. Keel v. Larkin, 296. Keer v. Clark, 348. Keesling v. Frazier, 90. Keim v. Avery, 72. Keirn v. Andrews, 196. Keith v. Goodwin, 43, 323. v. School, 214. Keithler v. Foster, 240. Kellar v. Williams, 282. ' Keller v. Boatman, 300. Keller's Adm'r v. McHuffman, 29. Kelley v. Few, 324. v. Whitney, 289. Kellogg v. Howes, 270. v. Olmsted, 181. v. State, 393. v. Stockton, 27. Kellum v. Clark, 274. Kelly v. Gillespie, 149, 151, 171. v. Henderson, 398. v. McCormick, 74. v. Matthews, 198. v. State, 200, 263. v. West, 378. Kelsey v. Hibbs, 86. Kemmerer v. Wilson, 227. Kemp v. Finden, 333. Kendall v. Baltis, 295. v. Milligan, 151. Kendrick v. Forney, 315. Kennedy v. Adams, 249. v. Bossiere, 226. v. Brown, 386. v. Evans, 151. v. Falde, 197. Kennedy & Shaw Lumber Co. v. S. S. Co., 50. Kent v. Matthews, 138. Kenworthy v. Sawyer, 184. Keokuk County State Bank v. Hall, 236. Keokuk Falls Imp. Co. v. Kings- land Co., 284. Keokuk v. Love, 315. Kepley v. Carter, 118. v. People, 391. Kernochan v. Murray, 207, 208. Kerns v. Chambers, 344. v. Ryan, 180. Kerr v. Reece, 383. Kerwin, Ex parte, 42, Kester v. Hill, 200. CASES CITED. [The figures refer to pages.] 449 Ketchell v. Burns, 259. Kiam v. Oummings, 225. Kidder v. Page, 78. Kldd v. Hurley, 137. Kiel v. Choate, 324. Kiernan y. Cameron, 276. Killian v. Ashley, 7, 57, 144, 260. Kimball v. Greig, 295. v. Newell, 236. v. Roye, 127. Kimble v. Cummins, 241, 308. Kimmel v. Lowe, 293, 338. Kindt's Appeal, 137, 229. King v. Baldwin, 137. v. Bank, 141, 171, 182. v. Batterson, 26. v. Clark, 391. v. Hannah, 306. v. Haynes, 182. v. Smith, 36. v. State, 391, 393, 399. v. Summitt, 96. v. Upton, 55. King County v. Ferry, 35, 175. 190. Kingman v. Decker, 272. Kingsbury v. Westfall, 216, 234, 244, 250. v. Williams, 250. Kingsland v. Koeppe, 275, 364. Kingston Mut Ins. Co. v. Clark, 189. Kinnaird v. Webster, 243. Kinney v. Schmitt, 41, 170. Kinsey v. Ring, 296. Kinyon v. Brock, 128. Kirby v. Landis, 178, 243. v. Marlborough, 130. v. Moore, 377. v. Studebaker, 7, 138, 141, 144, 165. v. Taylor, 249. Kirkham y. Marter, 89. Kirkpatrick v. Howk, 226. Kirk v. Sportsman, 240. Kittridge v. Stegmier, 196. Klein v. Funk, 318. v. Kern, 135, 140. CHILDS' StTEETTSBtrP — 29 Klein v. Long, 153. v. Mather, 339. Kleinhaus v. Generous, 184. Klepper v. Borchsenius, 323. Kline v. Raymond, 28, 170. Klingensmith v. Klingensmith, 195, 347. Klopp v. Bank, 277, 285. Klosterman v. Olcott, 28. Knight v. Charter, 141, 153, 229. t. Morrison, 305. Knighton v. Curry, 300. Knode v. Baldridge, 137, 147. Knopf v. Morel, 323, 324. Knotts v. Butler, 208, 349. Knowles v. Cuddeback, 187. Knowlton v. Hersey, 129. Knox v. Vallandingham, 322. Koboliska v. Swehla, 282. Kock v. Melhorn, 128. Koelsch v. Mixer, 342. Koenig v. Steckel, 244. Kohn v. Washer, 63. Konitzky v. Meyer, 293, 306, 342. Korn v. Hohl, 141. Krafts v. Creighton, 300. Kramer v. Bank, 295, 318. Kramer's Appeal, 288. Kreider v. Isenbice, 288, 314. Krug v. Bishop, 384. Kull v. Farmer, 238. Kulp v. Brant, 70. Kurtz v. Forquer, 40. Kyger v. Sipe, 236. Kyle v. Proctor, 187. Kyner v. Kyner, 279. Lachman v. Block, 27, 131. Lackey t. Steere, 237. Lacoste v. Bexar County, 274. Lacy v. Lofton, 365. v. Rollins, 352. v. Stamper, 377. Ladd v. Chamber of Commerce, 343. y. Parnell, 276. 450 CASES CITED. [The figures refer to pages.] La Farge v. Herter, 146, 226. Lafayette Co. v. Hixon, 230. Lafayette Mut. BIdg. Ass'n v. Kleinhoffer, 275. Lafayette Sav. Bank v. Stone- ware Co., 62. Lafonta, Ex parte, 392. Lagomarsino v. Giannini, 48. Laing v. Lee, 10S. Lakeman v. Mountstephen, 104. Lamb v. Briggs, 50. v. Shaw, 385. v. Tucker, 82. Lambert v. Shetler, 155. v. Shitler, 176. Lamberton v. Windom, 227. Lammon v. Feusier, 369. Lance v. Pearce, 103. Lancey v. Clark, 243. Landrum v. Brookshire, 298. Landsdale's Adm'rs v. Cox, 304. Lane, Ex parte, 95. v. Levillian, 26, 139, 140. v. Mayer, 130. v. Sleeper, 295. v. Westmoreland, 298. Lang v. Constance, 285. v. Pike, 125, 380. Langan v. Hewett, 8, 79. Langdon v. Bowen, 247. Lange v. Benedict, 372. Langley v. Adams, 157, 169. Lansdale v. Cox, 326. Lansdale's Adm'r v. Cox, 326. Lanusse v. Barker, 34, 193. Lapham v. Barrett, 109. La Rose v. Bank, 193, 202, 204. Larsen v. Kelly, 371. Larson v. Wyman, 106. Lartigue v. Baldwin, 75. Lash v. Bdgerton, 247. Lasher v. Williamson, 272. Lathrop v. Atwood, 299. Lauman v. Nichols, 150. Laurenson v. State, 263. Lavell v. Frost, 97. Laverty v. Burr, 79. Law v. East India Co., 233. Lawhon v. Toors, 166. Lawrence v. Johnson, 177. v. McCalmont, 33, 115, 118, 121, 129. Lawson v. Buckley, 195. v. Townes, 144. v. Wright, 223. Lawton v. Maner, 29, 33. Layer v. Nelson, 293, 325. Laylin v. Knox, 281. Leak v. Covington, 348. Leake v. Ferguson, 7, 281. Leary v. Cheshire, 351. Leavitt v. Savage, 177, 179. Leckie v. Scott, 59. Ledbetter v. McGhees, 96, Ledford v. Emerson, 394. Lee v. Brugmann, 149. v. Dick, 27. v. Griffin, 137. v. Jones, 67. v. Lee, 377, 379. v. Sewall, 177. v. State, 391, 395, 400. v. Stowe, 88, 310. v. Wisner, 57, 298. v. Tandell, 236. Lee Co. v. Welsing, 42. Leech v. Hill, 362. Leeds v. Dunn, 169. Leffingwell v. Freyer, 18. Leggett v. Humphreys, 125, 267. v. McClelland, 291, 352. Lehigh Coal & Iron Co. v. Scal- len, 30. Lehman v. McQuown, 384. Leigh v. Taylor, 214. Leighton . v. Brown, 268. Leithauser v. Baumeister, 18, 172. Lemmon v. Strong, 259. v. Whitman, 181. Lemonnier v. Beard, 368. Lemp v. Armengol, 130. Lennox v. Murphy, 150, 230. Lentell v. Getchell, 301. Leonard v. Gibson, 169. I v. Mason, 97. CASES CITED. [The figures reier to pages.] 451 Leppert v. Flaggs, 218. Lerch v. Gallup, 90. Lerned v. Wannemacher, 106, 107, 110. Lescouzeve v. Ducatel, 371. Lester v. Bowman, 95. v. Houston, 246. Letcher's Adm'r v. Yantis, 197, 347. Lethbridge v. Mytton, 299. Levi v. Mendell, 139, 364. Levy v. Cohen, 134, 260. v. Wise, 59. Lewis v. Armstrong, 252. v. De Forest, 289. v. Dwight, 118, 128, 268. v. Hoblitzell, 128, 223. v. Jones, 249, 250. v. Lee County, 274. v. Lewis, 312. v. Lumber Co., 103. v. Maulden, 380. Lexington & W. C. R. Co. v. El- well, 188. Libby v. Husby, 276. Lichtenthaler v. Thompson, 288. Liddell v. Wiswell, 340, 348. Lidderdale v. Robinson, 286, 350, 351. Lieberman v. Bank, 68. Life Ass'n of America v. Neville, 247. Lilley v. Hewitt, 112. Lilly v. Roberts, 229. Lime Rock Bank v. Mallett, 155, 176, 180. Linen v. Litchfield, 214. Lindeman v. Rosenfield, 179. Lindsay v. Parkinson, 162. Lingle v. Cook, 199. Lininger & Metcalf Co. v. Wheat, 26. Linn Boyd Tobacco Warehouse Co. v. Terill, 113. Linn County v. Farris, 70, 221. Linn v. McClelland, 308, 328. Lipscomb v. Grace, 313. Little v. Com., 215. Little v. Edwards, 101. v. Nabb, 108. Littleton v. Richardson, 306, 315. v. State, 391. Liverpool Waterworks v. Atkin- son, 119. Livingston v. Anderson, 283. v. Exum, 385. Livingston's Ex'rs v. Van Ren- selaer, 341. Lloyd v. Galbraith, 279. v. Matthews, 11. Lloyd's v. Harper, 23, 207. Lockart v. Roberts, 42. Locknane v. Emmerson, 163. Lockridge v. Upton, 196. Lockwood v. Jones, 394, v. Penn, 249, 250. Loeb v. B arris, 256. Loew's Adm'r v. Stocker, 43, 76. Lombard v. Cobb, 304, 336. v. Martin, 85. Lonas v. Wolfe, 57. London Co. v. Bold, 209. London, Paris. & American Bank v. Smith, 134. London & S. F. Bank v. Parrott, 115. Long v. Barnett, 349. v. Hemphill, 28. v. Miller, 241, 290, 291. v. Seay, 189. v. Sullivan, 380. v. Templeman, 80. Longfellow v. Barnard, 289. Longley v. Griggs, 323. Lonsdale v. Brown, 56. Loomis v. Newhall, 94, 96. Looney v. Le Geirse, 268. Loop v. Summers, 225. Loosemore v. Radford, 299. Loos v. McCormack, 135, 249. Lord Churchill, In re, 284. Lord v. Staples, 300. Loring v. Bacon, 333. v. Morrison, 272, 273. Loughridge v. Bowland, 295. Louis v. Brown, 271. 452 CASES CITED. [The figures refer to pages.] Louisiana State Bank v. Ledoux, 191. Louisiana & W. R. Co. v. Dillard, 135. Louisville, E. & St. L. R. Co. v. Caldwell, 97. Louisville Mfg. Co. v. Welch, 27, 32, 144. Louisville Water Co. v. Bridge Co., 271. Love v. Gibson, 328, 333, 342. v. Railroad Co., 269, 270. Lovejoy v. Whipple, 34. Low v. Smart, 351. Lowe v. Beckwith, 115, 128, 140, 144. v. Reddan, 228. v. Riley, 276. Lowell v. Edwards, 331. Lowman v. Yates, 175. Lowndes v. Pinckney, 135. Lowry v. Adams, 32, 33, 260. v. Bank, 303, 312. v. McKinney, 16, 281. V. Polk County, 375. v. State, 219. Lucas v. Guy, 328, 329, 338. v. Locke, 369. v. Owens, 70. v. Transfer Co., 62, 341. Lumpkin v. Mills, 285. Lumsden v. Leonard, 147, 229. Lutt v. Sterrett, 380. Lyle v. Morse, 141. Lynch v. Reynolds, 233. v. Smyth, 78. Lyon v. Boiling, 280. v. Crissman, 113. v. Osgood, 377. Lyttle v. Cozad, 38, 178. M McAlester v. Landers, 273. McArdle v. McDaniel, 401. McBride v. Potter-Lovell Co., 18, 322, 333. McBroon v. Governor, 309. McCann v. Dennett, 248. McCaraher v. Com., 74. McCarter v. Turner, 197. McCelvey v. Noble, 360. McClaskey v. Barr, 207. McClatehie v. Durham, 309, 343, 349. McClelland v. Davis, 325. McCloskey v. Wingfield, 234. McClurg v. Fryer, 223. McCluskey v. Cromwell, 117, 256. McCollum v. Cushing, 27, 32, 145, 258. McCombs v. Allen, 237. McComb v. Wright, 110. McConaghy's Estate, In re, 298. McConnell v. Beattie, 279. v. Brillhart, 110, 111. v. Poor, 165, 275. v. Scott, 138. McConomy's Estate, In re, 264. McCormack's Adm'r v. Obannon, 338, 339. McOormick v. Bay City, 38, 41, 70. McCormick Harvesting Mach. Co. v. McKee, 38. v. Millett, 135. McCoy v. Wood, 285. McCracken v. Insurance Co., 291. v. Todd, 31, 73. McCrary v. King, 198. McCready v. Van Antwerp, 280. McCreary v. Van Hook, 95. McCune v. Belt, 351, 352. McOutchen v. Rice, 97. McDaniel v. Gardner, 383. v. Lee, 333. McDonaghs, In re, 333. McDonald v. Magruder, 302, 323. v. Meadows, 379. v. People, 268, 378. v. Whitfield, 253. v. Wood, 58. McDougal v. Calef, 211. MacDougall v. Foyer, 4, 7. v. Walling, 176. CASES CITED. [The figures refer to pages.] 453 McDowell v. Bank, 22a v. Burwell, 271. Mace v. Wells, 313. Macey v. Childress, 91, 112, 113. McFadden v. Fritz, 386. v. Hewett, 74. Maefarland v. Helm, 48. v. Smith,, 55. McFarlane v. Howell, 380. Macfie v. Kilanea, 137. McGaughey v. Jacoby, 377. McGayock v. Whitfield, 236. McGee v. Metcalf, 183. McGlassen v. Tyrrell, 180. McGlothlin v. Wyatt, 321. McGough v. Birmingham, 125. McGovern v. Hoesback, 47. McGrew v. Governor, 371. McGuire v. Wooldridge, 159, 172. McGurk v. Huggett, 323. Machado v. Fernandez, 328, 329, 342. McHard v. Ives, 57. Mcllhenny v. Blum, 253. Mcintosh-Huntington Co. v. Reed, 135. Mcintosh v. Hurst, 43. Mclver v. Richardson, 126. Mackay v. Dodge, 169. McKecknie v. Ward, 176. McKee v. Campbell, 332, 344. v. Griffin, 212. v. Hamilton, 300. McKellar v. Bowell, 275. McKelvey v. Davis, 340. McKenna v. George, 317, 329, 332, 340, 350. McKenzie v. Wiley, 225. McKey v. Lauflin, 386. McKim v. Bartlett, 200. v. Morse, 379. McKinney v. Willis, 386. | Macklin v. Bank, 291. McKnight v. Bradley, 296. McLaren v. Hutchinson, 96. McLaughlin v. McGovern, 44. McLean v. Towle, 284. McLemore v. Powell, 179. McLendon v. Mortgage Co., 371. McMahan v. Geiger, 6. McMahon v. Fawcett, 351. McMillan v. Bank, 7, 9. v. Burkham, 48. v. Parkell, 264. McMinn v. Patton, 67. McMullen v. Ass'n, 215, 220, 240, 268. v. Hinkle, 227. v. Rafferty, 241. v. Riley, 86. McMurray v. Noyes, 128, 222. McNairy v. Bell, 306. McNaught v. McClaughry, 50, 51, 52. McNaughton v. Conkling, 26. McNee v. Sewell, 371. McNeill v. McBryde, 207. McNeill's Adm'r v. McNeill, 285. McNeilly v. Cooksey, 198, 229. McNeil v. Sanford, 6. McPherson v. Meek, 306. v. Talbott, 346. McQuesten v. Noyes, 247. McQuewans v. Hamlin, 79. McVicar v. Royce, 300. McWhorter v. McMahan, 111. McWilliams v. Mason, 222. v. Willis, 304. Maddox v. Duncan, 241. v. Rader, 371. Madgett v. Fleenor, 294. Magee v. Insurance Co., 66. v. Leggett, 279. Magruder v. Admire, 334. Mahaffey v. Gray, 219. Maher v. Lanfrom, 179, 180 Mahurin v. Pearson, 273. Maier v. Oanavan, 177. Mainzinger v. Mohr, 241. Major v. Holmes, 307. Malanaphy v. Fuller, 18, 249. Maledon v. Leflore, 136. Malin v. Bull, 350. Mallett v. Bateman, 85. 454 CASES CITED. [The figures refer to pages.] Mallory v. Gillett, 86, 90, 100, 103. Malone v. Keener, 101. Malott v. Goff, 299. Mameron v. Lead Co., 11. Mandigo t. Mandigo, 295. Manhattan Gaslight Co. v. Ely, 209. Manice v. Duncan, 147. Manisty v. Churchill, 286. Manley v. Boycott, 171. v. Geagan, 84, 104. Mann v. Brown, 181. v. Yazoo City, 275. Manry v. Wexelbaum, 134. Mansfield v. Edwards, 91, 297, 324. Manufacturers' Bank v. Cole, 125, 258. Manufacturers' Nat. Bank of City of Newark v. Dickerson, 160, 167. Manufacturers' Union Co. v. Todd, 243. Manufacturers' & Mechanic s' Bank v. Bank, 147. Manufacturers' & Merchants' Bank v. Follett, 138, 170. Maples v. Sidney, 56. Maquoketa v. Willey, 226. Marberger v. Pott, 127. March v. Putney, 30, 48. Marcy v. Crawford, 90. v. Praeger, 269. v. Whallon, 272. Marengo County v. Matkin, 257. Margretts v. Gregory, 227. Maries v. Polleys, 149. Markell v. Eichelberger, 318. Markland Min. & Mfg. Co. v. Kimmel, 37, 39, 118. Marks v. Bank, 41, 70. Marquis v. Willard, 370. Marsh v. Bank, 152. v. Chamberlain, 118. v. Day, 216, 224. v. Griffin, 158, 163. v. Harrington, 339. v. Pike, 6, 137. Marshal, Ex parte, 279, 313. v. Hudson, 239, 293, 309. v. Tracy, 238. Marston v. Sweet, 112, 113. Martin v. Bank, 228. v. Boyd, 362. v. Campbell, 70. v. Ellerbe's Adm'r, 293. v. Frantz, 348. v. Hertz, 383. v. Hornsby, 44. v. Marshall, 327, 344, 364. v. Orr, 197. v. Pope, 246. v. Powder Co., 109. v. Skehan, 194. v. Tally, 378. v. Walker, 284. v. Wright, 129. Martindale v. Brock, 314, 338. Martin's Estate, 58. Martyn v. Lamar, 139. Mason v. Nichols, 237. v. Pierron, 328, 329. v. Kichards, 386. v. Wilson, 96. Masser v. Strickland, 380. Massey v. Brown, 252. Massie v. Mann, 279. Mather v. People, 398. Mathews v. Aiken, 277, 280. v. Lee, 74. v. Phelps, 115, 128. v. Switzler, 246. Mathewson v. Bank, 182. Mathis v. Morgan, 37. Matthews v. Hall's Adm'r, 314. v. Maudlin, 199. v. Milton, 103. Mattingly v. Paul, 318. v. Riley, 170. v. Sutton, 296. Mattoon v. Cowing, 379. Maule v. Bucknell, 86. Mauri v. Heffernan, 298. Maurin v. Pogelberg, 103. Maxwell v. Jameson, 301. v. Vansant, 362. ' CASES CITED. [The figures refer to pages.] 455 May v. May, 262. v. Vann, 328, 349. v. Williams, 89, 91. Mayberry v. Bainton, 79, 144, 145, 146. Mayfleld v. Wheeler, 26. Mayhew v. Boyd, 159. Maynard v. Morse, 33. Mayo v. Renfroe, 44. Mays v. Joseph, 90. Mead v. Parker, 22. v. Watson, 103, 106. Meade v. McDowell, 7, 241. Meador v. Meador, 137. Meadows v. State, 267. Mease v. Wagner, 94. Meaux v. Pittman, 385. Mecorney v. Stanley, 53. Medley v. Tandy, 196, 197. Medlin v. Com., 398. Meggett v. Baum, 171. Meginnis v. Nightingale, 179. Meiswinkle v. Jung, 181. Melendy v. Capen, 128, 130. Melick v. Bank, 65. Mellendy v. Austin, 246. Mellish v. Green, 225. Melms v. Werdehoff, 38. Menard v. Davidson, 167. v. Scudder, 208. Menaugh v. Chandler, 265. Menifee v. Clark, 183. Mercantile Trust Co. v. Hensey, 271. Mercer County v. Coovert, 213. Merchants' Ins. Co. v. Hauck, 180. Merchants' Nat. Bank v. Murphy, 154. Merchants' & Manufacturers' Nat. Bank v. Cummings, 289. Meriden Britannia * Co. v. Zing- sen, 94. Meriden Silver Plate Co. v. Flo- ry, 196, 198. Meridian Fair Ass'n v. Railroad Co., 234. Merrells v. Phelps, 378. Merriam v. Rockwood, 37. Merrill v. Green, 281. Merrimack County Bank v. Brown, 155. Merriman v. Barker, 178. Merritt v. Clason, 110. v. Duncan, 38. Merryman v. State, 283. Merwin v. Austin, 296. Messmore v. Meyer, 365, 366. Metropolitan Loan Ass'n v. Es- che, 71. Metz v. Todd, 18, 172. Meyer v. Blakemore, 233. v. Ruhstadt, 32. Michigan State Bank v. Leaven- worth, 208. v. Peck, 121, 129, 258. Michigan State Ins. Co. v. Soule, 266. Mickley v. Stocksleger, 91. Middlesex Mfg. Co. v. Lawrence, 190. Middleton's Adm'r v. Hensley, 199. Middletown v. Indemnity Co., 155. Mifflin County Nat. Bank, Appeal of, 289. Miles v. Bacon, 315. v. Davis, 267. v. Linnell, 223, 239. Milks v. Rich, 101. Miller v. Bagwell, 49. v. Cook, 109. v. Gardner, 57. v. Gaskins, 234. v. Gaston, 127. v. Gilleland, 155, 157, 161, 162. v. Grlce, 372. v. Gray, 198. v. Hatch, 233. v. Howry, 295, 298. v. Kelsey, 199. v. Knight, 136. v. Lynch, 95. v. Montgomery, 246. 456 CASES CITED. [The figures refer to pages.] Miller v. Moore, 220. v. Neibaus, 104. v. Pendleton, 284. r. Porter, 179, 229. T. Ridgely, 152. v. Sawyer, 351. v. Spain, 171. v. Stem, 36, 183. V. Stewart, 118, 157, 166, 191. v. Stout, 137, 294. v. Thompson, 82. v. White, 229. v. Woodward, 309. Millerd v. Thorn, 150, 172. Milllken v. Pratt, 80, 131. Millius v. Shafer, 77. Mills v. Brown, 90. v. Gleason, 386. v. McCoy, 394. T. Williams, 42. Milroy v. Quinn, 26, 144. Mims v. McDowell, 300. Mlngus v. Daugherty, 229. Minick v. Huff, 90, 298. Mlnter v. Bank, 141. Missouri Bank v. Matson, 226. Mitchell v. Burton, 163. v. Cotten, 243. v. Culver, 41. v. De Witt, 288. v. McCleary, 28. v. Railton, 22, 27, 258. v. Roberts, 18, 248. v. Stewart, 127. v. Thorp, 49. v. Turner, 257. v. Williamson, 140, 141. Mitts v. McMorran, 96. Mix v. Singleton, 125. v. Vail, 123. M'Myn, In re, 282. Moakley v. Riggs, 222. Mobile & G. R. Co. v. Jones, 101. Moies v. Bird, 29, 52. Monson v. Drakeley, 6, 122, 281, 321, 323, 324. Montefiore v. Lloyd, 209. Monteith v. Com., 262. Montgomery v. Hamilton, 185. t. Hughes, 189. v. Kellogg, 26, 32, 33, 144, 145, 146. v. Page, 324. Montgomery County v. Auchley, 49. Montgomery's Succession, In re, 318. Monument Nat Bank v. Globe Works, 63. Moodie v. Penman, 297. Mooney v. People, 390. Moore v. Bowmaker, 169. v. Bruner, 332, 339. v. Carpenter, 207. v. Gray, 142, 239. v. Holt, 115, 117, 127. v. Isley, 327, 347. v. Lassiter, 252, 381. v. Loring, 244. v. Moberly, 289, 352. v. Paine, 251. v. Peterson, 196. v. State, 19, 322. v. Stevens, 300. v. Topliff, 17. v. Waller's Heirs, 237. Moorehouse v. Crangle, 94. Moorman v. Wood, 360. Morbeck v. State, 374. Morehead v. Duncan, 155. Moretz v. Ray, 271. Morgan v. Boyer, 129. v. Long, 371. v. Seymour, 329. v. Smith, 251, 252, 331. v. Thompson, 149, 151, 183. v. Wordell, 297. Morin v. Martz, 109. Morley v. Inglis, 136. v. Metamora, 201, 219. Morrell v. Cowan, 220. Morrill v. Baggott, 168. V. Daniel, 387. v. Lamson, 63. v. Morrill, 289. CASES CITED. [The figures refer to pages.] 457 Morris, Ex parte, 291. v. Cooper, 199. v. Evans, 286. v. Kniffin, 110. t. Osterhout, 104. Morris Canal & Banking Co. v. Van Vorst, 203, 243. Morrison v. Arnos, 167. v. Berkey, 301, 330. v. Hartman, 229. v. Poyntz, 329, 338, 339, 341, 351. Morrison, Plummer & Co. v. Schlessinger, 73. Morrow v. Brady, 216. v. Mortg. Co., 278. Morse v. Blanchard, 180. v. Hodsdon, 75. v. Huntington, 184. Morss v. Gleason, 17. Mortland v. Himes, 146, 148, 253. Morton v. Dean, 110. Mosby v. Arkansas, 42. Moseley v. Coldwell, 238. Mosely v. Fullerton, 328, 329, 338. Moser v. Libenguth, 117. Moses v. Ass'n, 18. v. Norton, 103. Mosher v. Carpenter, 76. v. Hotchkiss, 270. t. Murphy, 75. Mosier t. Waful,. 223. Moss v. Blyth, 48. v. Craft, 230. v. Pettingill, 147, 225, 230. v. Riddle, 35. v. State, 190. Motley v. Harris, 279, 289. Moulding v. Wilhartz, 199. Moulton v. Posten, 171, 176, 181, 183. Mount v. Com., 400. Mt. Pleasant Bank v. Pollock, 398. Mowbray v. State, 37, 207. Mozingo v. Ross, 239, 241. Mudd v. Com., 396. Mulcrone v. American Co., 95. Muldoon v. Crawford, 286. Mulford v. Estudillo, 225. Mullaly v. Holden, 113. Mullen v. Morris, 39, 40. v. Scott, 275. Mullendore v. Wertz, 148, 149. Muller v. Riviere, 99. v. Wadlington, 277. Mullikin v. State, 190. Mulvane v. Sedgley, 239. Mumford v. Railroad Co., 160. 167. Mundorff v. Wangler, 31. Mundy v. Stevens, 155. Munford v. Overseers, 275. Munson v. Adams, 57. Murphy v. Gage, 346. v. Glass, 273. v. Renkert, 97. Murray v. Graham, 148, 158. v. Luna, 377. v. Marshall, 16, 171. v. Meade, 284. Muscatine v. Mississippi Co., 136. Musgrave v. Dickson, 279. Musselman v. Com., 31. Mussey v. Rayner, 26, 32, 115, 144. Mutual Ins. Co. v. Davies, 195. Mutual Life Ins. Co. v. Wilcox, 69. Mutual Loan & Bldg. Ass'n v. Miles, 188. v. Price, 203, 219. Muzzy v. Shattuck, 374. Myers v. Bank, 181. v. Fry, 324. Myres v. Yaple, 284. N Nabb v. Koontz, 109. Nading v. McGregor, 28, 139. Nail v. Springfield, 176. Nally v. Long, 298, 327, 351. Napier v. Bruce, 119. Nash v. Fugate, 38. 458 CASES CITED. [The figures refer to pages.] Nash v. Hartland, 216. Nason v. Directors, 375. National Ass'n v. Lichtenwalner, 222. National Bank of Asheyille v. Fidelity & O. Co., 67. National Bank of Commerce v. Schirm, 18. National Bank of Newburgh v. Bigler, 184, 289. v. Smith, 228, 283. National Bank of Royalton v. Cushing, 277. National Cordage Co. v. Sims, 92. National Eagle Bank v Hunt, 20, 180, 207, 208. National Lead Co. v. Montpelier, 237. National Life Ins. Co. v. Olhaber, 204. National Loan Soc. v. Lichten- walner, 223. National Loan & Building Ass'n v. Lichtenwalner, 127. National Mahaiwe Bank v. Peck, 228. National Mechanics' Banking Ass'n v. Conkling, 167. National Park Bank v. German Co., 62. National Pemberton Bank v. Lou- gee, 362. National Surety Co. v. Walker, 226. Nazro v. Fuller, 161. Neagle v. Sprague, 30. Neal v. Buffington, 137, 279. v. Nash, 305. Neale v. Newland, 300. Neel v. Com., 181. v. Harding, 148, 149, 151. Neely v. Bee, 344. v. Rood, 2*1 Neff v. Horner, 159, 163. Neff's Appeal, 225, 230, 231. Neil v. Morgan, 46. v. Ohio College, 116. Neimcewicz v. Gahn, 151. Neininger v. State, 117, 395. Neiser v. Thomas, 385. Nelson v. Anderson, 380. v. Bank, 97, 239. v. Donovan, 140. v. Webster, 305. v. Williams, 225. v. Woodbury, 212. Neptune Ins. Co. v. Dorsey, 278. Nettleton v. Billings, 249. Neumann v. Shroeder, 97. Nevins v. De Grand, 158. Nevitt v. Woodburn, 378. Newark v. Stout, 203. New Bedford Inst, for Say. y. Bank, 291. v. Hathaway, 348. Newcomb v. Gobson, 333. v. Hale, 196. v. Raynor, 6, 249, 251. Newell v. Clark, 154, 240. v. Fowler, 224. v. Hamer, 179. v. Hurlburt, 319. v. Salmons, 272. New England Marine Ins. Co. v. De Wolf, 58. New Hampshire Sav. Bank v. Colcord, 55, 153, 155, 178, 180, 224, 231. v. Ela, 155. New Haven Bank v. Miles, 400. New Haven County Bank v. Mit- chell, 28. New Home Sewing Mach. Co. v. Simon, 65. Newlan v. Harrington, 157, 161, 164. Newman v. Coal Co., 26. Newnan v. Campbell, 304. New Nat. Turnpike Co. v. Du- laney, 385. New Orleans Canal & Banking Co. v. Hagan, 125. New Orleans Nat. Bank v Wells, 257. New Orleans, St. L. & C. R. Co. v. Burke, 46. CASES CITED. IThe figures refer to pages.] 459 Newsam v. Pinch, 182. Newton v. Hammond, 141, 379. v. Newton, 19, 322. v. Pence, 339. Newton Wagon Co. v. Diers, 58. New York State Bank v. Fletcher, 281, 312. Neylan v. Green, 243. Nichol v. Ridley, 106. Nichols v. Johnson, 107, 109. v. McDowell, 195. v. MacLean, 167. y. Palmer, 168. V. Parsons, 148, 151. v. Salk, 76. Nicholson v. Paget, 129. v. State, 390. Nicolls v. Ingersoll, 392. Nickerson v. Chatterton, 134. Niles Tool Works Co. v. Rey- nolds, 25. Nimmocks v. Welles, 385. Nixon v. Beard, 328, 330. Noble v. Arnold, 385. v. Oil Co., 147. v. Turner, 288. Nof singer v. Hartnett, 381. Noll v. Oberhellmann, 178. v. Smith, 270. Nolley v. Court, 214, 275. Nolte v. Creditors, 314. Norfolk v. People, 392. Norridgewock v. Hale, 188. Norris v. Graham, 103. North v. Brace, 339. v. La Flesh, 246. v. Robinson, 98. North Atchison Bank v. Gay, 37. North Ave. Sav. Bank v. Hayes, 345. North British Ins. Co. v. Lloyd, 65, 66. Northern Bank of Kentucky v. Cooke, 244. Northrup v. Garrett, 383. Northumberland v. Cobleigh, 46. Northumberland County Bank v. Byer, 260. Northwestern R. Co. v. Whinray. 167. Norton v. Bank, 62. v. Coons, 321, 326. v. Eastman, 230. v. Hall, 309. v. Miller, 264. v. Reid, 137. v. Soule, 277, 285. Novelty Mill Co. v. Heinzerling, 221, 242. Noxon v. Bentley, 141. Noyes v. Granger, 125. v. Nichols, 26, 115, 144. Noyes' Ex'x v. Humphreys, 86. Nugent v. Wolfe, 91. Nunn v. Carroll, 85. Nurre v. Chittenden, 323, 324. Oak v. Dustin, 254. Oakley v. Boorman, 55. Oaks v. Weller, 27, 33, 146. O'Bannon v. Saunders, 371. Oberndorf v. Bank, 175, 179, 248. Oberne v. Gaylord, 383. O'Blenis v. Karing, 341. O'Brien v. McCann, 273. O'Conor v. Morse, 248. Odlin v. Greenleaf, 298, 303, 308, 309, 329, 338. O'Donnell v. Colby, 387. Officer v. Marshall, 178. Offley v. Johnson, 329. Offord v. Davies, 34, 194. Offterdinger v. Ford, 383. Ogden v. Davis, 121. v. People, 394. Ohio Life Ins. & Trust Co. v. Reeder, 290. Ohio & M. R. Co. v. Hardy, 63. O'Howell v. Kirk, 150, 197. Okie v. Spencer, 243. Olcott v. Lilly, 249, 398. Old- Dominion Bank v. Allen, 281. Oldham v. Broom, 6, 42, 324. O'Leary v. Martin, 359. 460 CASES CITED. [The figures refer to pages.] Olmstead v. Latimer, 179. Olmsted v. Olmsted, 117. Olson v. Royem, 262. O'Neall v. Herbert, 379. O'Neill v. Bank, 291. Opp v. Ward, 267, 279. Ordinary v. Corbett, 233. v. Heishon, 74, 75. v. Kershaw, 378. Ordinary of State of New Jersey v. Thatcher, 37. Oregon Nat. Bank of Portland v. Gardner, 67. Oregon R. & Nav. Co. v. Swin- burne, 119. Organ v. Allison, 164. Oriental Corp. v. Overend, 184. Orleans & J. R. Co. v. Construc- tion Co., 221. Orrick v. Colston, 362. v. Durham, 281. Orvis v. Newell, 148, 151. Osborn v. Cunningham, 300. v. Hendrickson, 169. v. Low, 181. Osborne v. Endicott, 113. v. Smith, 137. v. Thompson, 79. v. Van Houten, 166. Osborne & Co. v. Gullikson, 135. Osgood v. Miller, 153. Otis v. Van Storch, 152, 225. Ottenstein v. Alpaugh, 212. Otto v. Jackson, 262. Overend, Gurney & Co. v. Orien- tal Corp., 150. Overton v. Tracey, 11. v. Woodson, 299. Owen v. Long, 60. v. McGehee, 19, 330, 331. v. State, 229. v. Stevens, 105. Owens v. Miller, 290. v. Mynatt, 255. v. Tague, 154. Owing v. Owings, 316, 317. Oyler v. McMurray, 155. Pace v. Pace, 282, 348, 350. v. Robertson, 314. Pacific F. Ins. Co. v. Surety Co., 204. Packer v. Benton, 94. Pack v. State, 396. Paddleford v. State, 348. v. Thacher, 233, 249. Page v. Krekey, 70. v. Morrell, 41. Pahlman v. Taylor, 79, 161. Paige v. Parker, 28. Pain v. Packard, 195. Paine v. Drury, 244. v. Jones, 164, 171. Palatine Co. v. Crittenden, 65. Palmer v. Bagg, 210. v. Pettingill, 370. v. Pollock, 207. Palmeter v. Carey, 16. Pannill's Adm'r v. Calloway, 264. Parham v. Brock, 210. v. Cobb, 206. v. Pulliam, 80. Parham Sewing Mach. Co. v. Brock, 209, 210. Paris v. Hulett, 290. Parker v. Bidwell, 392. v. Dominick, 206. v. Leek, 304. v. Mercer, 279. v. Nations, 225. v. Pitts. 73. v. Sterling, 398. v. Wise, 162. Parkhurst v. Vail, 50, 51. Parkman v. Brewster, 140. v. Welch, 249. Parks v. Ross, 211. Park & Lacy Co. v. Lumber Co. 165. Parmelee v. Williams, 181. Parmerlee v. Williams, 7. Parnell v. Hancock, 232. v. Price, 179, 183. Parrish v. Gray, 195, 197. CASES CITED. [The figures refer to pages.] 461 Parr v. State, 275, 379. Parry v. Spikes, 108. Parsons v. Bank, 153. v. Briddock, 281, 285. v. Harrold, 181. Partee v. Mathews, 287. Partridge v. Davis, 140, 260. Pashby v. Mandigo, 330. Pasteur v. Parker, 140. Paterson v. Lynch, 3. v. Pain, 360. Patten v. Gurney, 92. Patterson v. Brock, 151. Partlow v. Lane, 298. v. Freehold, 190. v. Gage, 129. v. Gibson, 255. v. Johnston, 319. v. Patterson, 327. v. Reed, 145. Patton v. Caldwell, 217. v. Mills, 90, 99. v. Shanklin, 41. Paul v. Berry, 6, 150, 302, 322, 324, 325,' 327. v. Christie, 242. v. Eider, 323. v. Stackhouse, 50, 52. Paulin v. Kaighn, 325, 328, 344, 345, 351. Pawling v. U. S., 37, 39. Paxton t. State, 31. Payne v. Bank, 226. v. Powell, 181. Peabody v. Chapman, 304. v. Ohio, 206. Peacock v. People, 254. v. State, 397, 398. Peake v. Dorwin, 149, 171. Pearl v. Deacon, 226. v. Wellman, 381 Pearre v. Folb, 262. Pearsell Mfg. Co. v. Jeffreys, 26, 33. Pearson v. Dailey, 379. v. Parker, 298, 300, 304. v. State, 396. Pease v. Tilt, 225. Peaslee v. Breed, 293. Peck v. Barney, 31. v. Frink, 22, 138, 140. v. Goff, 96. v. Harris, 51. v. Vandemark, 107. v. Wilson, 386. Peckham v. Gilman, 362. Peelle v. State, 31. Pegram v. Riley, 335. Peirce v. Tobey, 241. Pelton v. Lumber Co., 161. v. Prescott, 154. Pelzer v. Campbell, 77. Pence v. Gale, 153. Pendexter v. Vernon, 178. Pendlebury v. Walker, 41, 320. Pend's Adm'rs v. Warner, 298. Penfield v. Goodrich, 77. Penn v. Collins, 168. v. Hamlett, 42. Penniman v. Hartshorn, 109, 110. Pennington v. Seal, 295 v. Woodall, 295. Pennsylvania Coal Co. v. Blake, 50, 55. Penny v. Crane Co., 134, 136, 231. Penoyer v. Watson, 259. People v. Backus, 115, 117, 118, 186, 214. v. Baer, 401. v. Bartlett, 400. v. Bennett, 400, 401. v. Bostwick, 35. v. Brown, 157. v. Bugbee, 257. v. Chalmers, 125, 257. v. Collins, 263. v. Curry, 199. v. Deery, 401. v. Dennis, 390. v. Duncan, 328. v. Faulkner, 374. v. Felton, 394, 396. v. Gordon, 395. v. Hammond, 263. v. Hanaw, 395. 462 CASES CITED. [The figures refer to pages. J People v. Hartley, 44. v. Hathaway, 394. v. Hilton, 214. v. Hobbs, 401. v. Holley, 36. v. Huffman, 214, 377., v. Huson, 31, 262. v. Johr, 64, 74. v. Kennedy, 394. v. Lee, 128, 220. v. McHatton, 174. v. Manning, 398. v. Meehan, 401. v. Mersereau, 369. v. Meyer, 398. v. Millham, 395. v. Moon, 199. v. Moore, 399. v. Morrison, 119, 134. v. Norton, 263. v. Pennock, 123, 214. v. Perkins, 368. v. Race, 64. v. Rathnone, 367. v. Rich, 398. v. Robb, 399. v. Russell, 275. v. Schuyler, 370. v. Slocum, 47, 263. v. Sloper, 396. v. Smith, 370, 401. v. Stacy, 39. v. Stager, 398. v. Tompkins, 123, 211, 215. v. Toomey, 122. v. Tubbs, 400. v. Vilas, 123, 211. v. White, 141. v. Wissig, 398. People ex rel. Curtiss v. Colby, 371. People ex rel. Loh v. Wayne Cir- cuit, 276. People's Bank of Belleville v. Bank, 62. People's Bank v. Pearsons, 178. People's Building & Loan Ass'n v. Wroth, 190. People, to Use of Buffington, t. Organ, 162. People, to Use of City of Mt. Ver- non, v. Pace, 73. Peoria Savings, Loan & Trust Co. v. Elder, 115, 221. Peppin v. Cooper, 188, 191. Pequawket Bridge v. Mathes, 35. Percival v. McCoy, 117. Perkins v. Catlln, 223. v. Cheney, 240. v. Goodman, 29, 46, 264. Perley v. Muskegon County, 375. Perrine v. Insurance Co., 226. Perry v. Horn, 268. v. Varbrough, 294. Perryman v. McCall, 129. Petefish v. Watkins, 243. Peter v. Rich, 340. Peters v. Bank, 54, 219, 226. v. Barnhill, 297, 300, 330. v. Linenschmidt, 198. Petersburg Sav. & Ins. Co. v. Lumsden, 285. Peterson v. Russell, 55, 57, 141. Pettit v. Mercer, 383. Petty v. Cooke, 244. v. Douglass, 182, 195, 196. v. People, 396. Pevito v. Rodgers, 46. Pfenninger v. Kokesch, 241. Pharr v. McHugh, 141. Phelps v. Borland, 249, 358. v. Stone, 90. v. Vischer, 360. Phenix Ins. Co. v. Findley, 202. v. Louisville Co., 128. Philadelphia .& R. R. Co. v. Knight 61, 62. v. Little, 136, 137. Philbrick v. Shaw, 277, 281. Phillips v. Bossard, 193, 203. v. Brazeal, 200. v. Davis, 379. v. Foxall, 202. v. Hooker, 110, 111. v. Mfg. Co., 214. v. Plato, 323. CASES CITED. [The figures refer to pages.] Phillips v. Poole, 257. v. Preston, 324. v. Riley, 198. v. Singer Co., 257. Phillip Semmer Glass Co., In re, 238. Phipps v. Mansfield, 295. Phybus v. Gibbs, 124, 175. Pickens v. Miller, 199, 321. v. Yarborough, 195, 227. Pickering v. Day, 139, 218, 245. v. Leiberman, 288, 350. Picket v. Hawes, 139. 463 Pickett v. Bates, 302. v. Boyd, 384. v. State, 395. Picot v. Signaigo, 264. Pico v. Webster, 275. Pidcock v. Bishop, 65. Pierce v. Hardee, 386. t. Holzer, 284. v. Knight, 247. v. Richardson, 31. v. Sweet, 246. v. Williams, 316. Piercy v. People, 398. v. Piercy, 206. Pierse v. Irvine, 364. Pigot's Case, 161. Pigou v. French, 298. Pile v. McCoy, 326. Pilgrim v. Dykes, 147. Pine County v. Willard, 200. Pinkstaff v. People, 135. v. State, 220. Pinkston v. Taliaferro, 330. Piper t. Headlee, 153. v. Newcomer, 151. Piper's Estate, 377. Pirkins v. Rudolph, 169. Pittman v. Chisolm, 128, 223. Pitt v. Purssord, 308, 328. Pitts v. Congdon, 149. v. Fugate, 306. Pittsburg, Ft. W. & C. R. Co. Shaeffer, 69, 203. Pitzer v. Harmon, 301. Place v. Mcllvain, 177. v. Taylor, 371. Plankinton v. Gorman, 226. Plant v. Storey, 290. Planter's Bank v. Douglass, 318. Planters Bank of Georgia v. Lambin, 203. Planters' State Bank v. Schlamp, 254. Planters' & Merchants' Bank v. Blair, 258. Planters' & Mechanics' Bank of Houston t. Robertson, 142. Planters' & Merchants' Bank of Huntsville v. Hill, 374. Planters' & Miners' Bank v. Hud- gins, 380. Platter v. Green, 26. Pleasantville Mut. Loan & Build- ing Soc. v. Moore, 138. Pleasonton's Appeal, 193. Pledge v. Buss, 225. Plowman v. Henderson, 263. Poe v. Dixon, 314. Pogue v. Joyner, 382. Polak v. Everett, 155, 164, 225. Police Jury v. Haw, 263. Polk v. Gallant, 137. Polkinghorne v. Hendricks, 359, 360. Pollard v. Stanton, 149, 297. Pollock v. Cox, 250. v. Gantt, 382. Pond v. Clarke, 319. Pond's Adm'rs v. Warner, 298. Pool v. Doster, 290. Pooley v. Harradine, 7, 171. Portage County Branch Bank v. Lane, 162. Port v. Jackson, 299. Porter v. Bank, 196. v. Dremmam, 112. v. Hodenpuyl, 185. v. Horton, 338. v. Singleton, 380. v. Worsmer, 113. Post v. Doremus, 58. 464 CASES CITED. [The figures refer to pages.] Post v. Losey, 48, 171, 182, 237. v. Shafer, 169. Postmaster General v. Munger, 199. v. Norvell, 31, 32. Pott v. Nathans, 252, 281, 323. Potter v. Gronbeck, 34, 258. v. Stevens, 289. Powell v. Edwards, 338. v. Kettelle, 7, 123, 207. v. Matthis, 337, 339. v. Patison, 219. v. Powell, 322. v. Smith, 299, 301, 304, 317. Power v. Rankin, 99. Powers v. Blumcratz, 26. v. Clarke, 70. Powers Dry Goods Co. v. Harlin, 65. Prather v. Gammon, 181. v. Vineyard, 96. Pratt v. Bates, 98. v. Hedden, 57. v. Law, 282. v. Matthews, 131. v. Thornton, 319. Pray v. Maine, 305. v. Wasdell, 381. Prendergast v. Devey, 174. Prentiss v. Garland, 135. Prescott v. Newell, 304, 325, 330, 337. President of Agawam Bank v. Strever, 131. President of Bank of Brighton v. Smith, 268, 269. President of Claremont Bank v. Wood, 264. President of Oxford Bank v. Haynes, 127. Preston v. Campbell, 332. v. Garrard, 150. v. Gouid, 323. 324, 348, 349. v. Hull, 37, 39. v. Preston, 322, 323, 340. Price v. Bank, 18, 163, 172, 177. v. Barker, 249. v. Horton, 314. Price v. Kennedy, 262. v. Trusdell, 277, 290. Priest v. Watson, 225. Prime v. Koehler, 86, 99. Pringle v. Sizer, 295. Prior v. Kiso, 168, 209, 249. v. Williams, 117. Prltchett v. People, 76, 264. v. Wilson, 220. Probate Court for Washington Dist t. St. Clair, 38. Protection Ins. Co. v. Davis, 138. Prout v. Bank, 184. Provenchee v. Piper, 96, 101. Prusla v. Brown, 244. Pugh v. Cameron, 72. Pulliam v. Withers, 57. Punta Gorda Bank v. Bank, 117. Purcell v. Steele, 75. Purdy v. Porstall, 272. Putnam v. Schuyler, 48, 255. Pybus v. Gibb, 160, 175, 211. Pyke's Adm'r v. Clark, 181. Pynes v. State, 398. Queen v. Doughty, 283, 351. v. Hall, 124. Queens County Bank v. Leavitt, 57, 136. Quillen v. Quigley, 140. Quimby v. Morrill, 49. v. Putnam, 241. Quinn v. Hard, 70. Raabe v. Squier, 99, 100. Rader v. Davis, 43. Rae v. Rae, 344. Ragsdale v. Gossett, 148, 253. Rahway v. Crowell, 188. Railsback v. Greve, 381. Railton v. Mathews, 69. Rainey v. Yarborough, 339. Ralston v. Wood, 330. Ramey v. Com., 389, 395, 39 v. Purvis, 197. CASES CITED. [The figures refer to pages.] 465 Ramsay's Estate v. Whitbeck, 293, 311. Ramsey v. Coolbaugh, 392. v. Lewis, 344. v. People, 374. Ramsey County Com'rs v. Brls- bin, 263. Rancil v. Krohne, 104. Rand v. Mather, 86. Randall v. Carpenter, 385. v. Howard, 113. v. Rich, 300. v. Rigby, 7. Randidge v. Lyman, 238. Randolph v. Fleming, 171. Randolph's Adm'x v. Randolph, 308. Randol v. Tatum, 247. Ranelaugh v. Hayes, 138. Raney v. Baron, 125. Rankin v. Childs, 145. v. Collins, 329, 338. v. Wilsey, 289, 290. Rany v. Governor, 188. Rapelye v. Bailey, 26. Rapp's Estate v. Insurance Co., 202, 207, 208. Rathbone v. Warren, 174, 390. Rathbone, Sard & Co. v. Frost, 65. Ratliff v. Trout, 108. Rawlings v. Gunstern, 398. Rawson v. Piper, 378. Ray v. Brenner, 237. Raymond Bros. v. Green, 272, 383. Rayner v. Clark, 267. Read v. Case, 392. v. Cutts, 7, 138, 140. v. Nash, 94. Reader v. Kingham, 98. Receivers of New Jersey M. R. Co. v. Wortendyke, 279. Redfeild y. Haight, 317. Redwood County v. Tower, 374. Reed v. Com., 214, 377. v. Court, 400. v. Evans, 108. Childs' Sttbetyship— 30 Reed v. Fish, 129. v. Garvin, 260. v. Hedges, 263. v. Humphrey, 306, 309. v. Norris, 314. Rees v. Barrington, 174. Reese v. People, 396. v. U. S., 160, 219, 399. Reeves v. Chambers, 273. v. Pulliam, 350. Regan v. Williams, 179. Regina v. Robinson, 283. T. Salter, 283. Reid v. Flippen, 309, 313. v. Humphreys, 263. Reilly v. Dodge, 194. Reinhard v. Columbus, 391, 392. Reinhart v. Johnson, 351. Reitz v. People, 238, 348. Remington Co. v. Kezertee, 65. Remsen v. Graves, 77, 178, 235, 237. Resseter v. Waterman, 86, 90. Reynolds v. Dechaums, 64. v. Douglass, 33, 145, 14a v. Hall, 122, 214. v. Harral, 293, 312. v. Skelton, 298. v. Ward, 181. v. Wheeler, 321. Rhea v. Gibson's Ex'r, 42. v. Preston, 81. Hhoads v. Frederick, 158. Rhode v. MeLean, 37. Rhodes v. Matthews, 99. v. Sherrod, 323, 324. Rice v. Barry, 102. v. Carter's Adm'r, 98. v. Cook, 29. v. Dewey, 289. v. Downing, 138, 278. v. Isham, 153. v. Loomis, 187. V. Morton, 146. v. Rice, 306, 315, 342. v. Sanders, 16, 299. v. Southgate, 293. Rice's Appeal, 288, 290. 466 47. Rich v. Hathaway, 134, v. Starbuck, 41. Richards v. Com., 239. v. Day, 42. v. Storer, 169. v. Yoder, 290. Richardson v. Allen, v. Bank, 386. v. Boynton, 377, 379. v. Draper, 131, 207. v. Horton, 207. v. Merritt, 296. v. Robbins, 86. Richardson School Fund v. Dean, 188. Richeson v. Crawford, 285. Richmond v. Aiken, 253. v. Moore, 73. Richmond Mfg. Co. v. Davis, 42. Richner v. Kreuter, 49. Richter v. Frank, 80. Ricketson v. Giles, 29, 307. Riddle v. Baker, 217. v. Bowman, 299. Ridgeway v. Potter, 193, 293. Ridgtey Nat. Bank v. Patton, 228. Ridgway v. Ingram, 107. Rietzloff v. Glover, 95. Riggan v. Crain, 110. Riggin v. Creath, 249. Riggs v. Miller, 74. Riley v. Reifert, 70. Rindge v. Judson, 130. Rindskopf v. Doman, 71, 154. Ringgold v. Newkirk, 145. Ripley v. Gear, 382. Ritenour v. Mathews, 294, 302, 303. Rittenhouse v. Kemp, 185. v. Levering, 281, 288. Ritter v. Singmaster, 178. Rix v. Adams, 51. Rizer v. Callen, 300, 304. Robbins v. Bingham, 258. Roberts v. Bane, 149, 151. v. Colvin, 290. v. Donovan, 164, 166, 202. v. Gordon, 394, 395. CASES CITED. [The figures refer to pages.] Roberts v. Green, 394. v. Griswold, 206. v. Hawkins, 7, 28, 135, 139, 141. v. Jenkins, 151. v. Mattress Co., 51. v. Miles, 266. v. Riddle, 134. v. Sayre, 344. v. State, 74. v. Stewart, 174, 181, 182. v. Trust Co., 293. Robertson v. Blevins, 42, 178. v. Deatherage, 6, 322, 324, 327. v. Findley, 50. v. Maxcey, 330. v. Trigg, 286, 339. Roberts, Throp & Co. v. Laughlin, 22. Robinson v. Berryman, 163. v. Dale, 172, 175. v. Garth, 78, 110. v. Gould, 255. v. Hyer, 49. v. Kilbreth, 324. v. Lane, 275. v. Millard, 214, 377. v. Miller, 179, 181. v. Offcut, 185. v. Plimpton, 381. v. Reed, 164. v. Robinson, 235. v. Sherman, 316. v. Soule, 237. v. Teeter, 387. Robson v. McKoin, 246. Roche v. Chaplin, 96. Rochereau v. Jones, 250, 371. Rochester Bank v. Elwood, 212. Rochester Sav. Bank v. Chick, 185. Rockefeller v. Larick, 277. Rockville Nat. Bank v. Holt, 153, 185. Rodgers v. Maw, 300. Roeder v. Niedermeier, 328. CASES CITED. [The figures refer to pages.] 467 Rogers v. Bank, 142. v. State, 201. v. Trustees, 152, 224. Rolfe v. Lamb, 245. Rollins v. Ebbs, 42. Rolston v. Chick, 79. Roosevelt v. Mark, 294. Root v. Dill, 198. Roper v. Lodge, 66, 69, 201, 215. Rosborougb v. McAliley, 246. Rose v. Douglass Tp., 41, 42, 375. v. Williams, 151, 152, 171. v. Wollenberg, 90, 327. Rosenbaum v. Goodman, 321. Rosendorf v. Mandel, 140. Rosenthal v. Davenport, 217, 371. v. Perkins, 237. Ross v. Allen, 304. v. Espy, 324. v. McKinny, 296. v. Menefee, 299. Roth v. Adams, 49. v. Miller, 115. Rothermal v. Hughes, 70. Rothschild v. Bowers, 332. Rottman v. Fis, 102. Rouse v. Banking Co., 150. v. Mohr, 59. Rouss v. Creglow, 118. v. King, 161, 162, 229. Routon's Adm'r v. Lacy,- 197. Rowan v. Sharps, 157. Rowland v. Rorke, 101. v. Stevenson, 249. Rowlet v. Eubank, 56. Rowley v. Jewett, 170, 231. Royal Bank v. Bank, 289. Royal Co. v. Davies, 207. Rozer v. Rozer, 9. Ruberg v. Brown, 29, 139. Ruble v. Norman, 242, 243. Rubush v. State, 395. Rucker v. Robinson, 175, 184. Rucks v. Taylor, 313, 318. Rudesill v. Court, 170. Rudolf v. Malone, 220, 321. Rudolph v. Hewitt, 243. Ruffner v. Love, 27, 33. Ruggles v. Gatton, 103. v. Holden, 195. Ruhling v. Hackett, 101. Rumberger v. Golden, 180. Rumley Co. v. Wilcher, 163. Runde v. Runde, 95. Rupp v. Over, 219. Rushforthe, Ex parte, 283. Russell v. Annable, 44, 77. v. Ballard, 258. v. Buck, 80. v. Clark, 92. v. Pailor, 342. v. Fenner, 85. v. Freer, 37. v. La Roque, 290. v. Perkins, 172. v. State, 400. Rutenberg v. Main, 110. Rutherford v. Brachman, 172. Rutter v. Hall, 218. Ryan v. Krusor, 330. v. Shawneetown, 162. Sacramento County Sup'rs v. Bird, 167, 238. Safranski v. St. Paul Co., 39. Sage v. Strong, 154, 160, 162, 169, •380. v. Wilcox, 108. St. Albans Bank v. Dillon, 134, 157, 232, 236. Saint v. Ledyard, 283. v. Wheeler, 7, 26, 167, 179, 193, 202, 204. Sale v. Darragh, 107. Saline County v. Buie, 226, 231. Salisbury v. Bank, 360. Salmon Falls Mfg. Co. v. God- dard, 107, 108, 110, 111. Saltenberry v. Loucks, 214. Salt Springs Nat. Bank v. Sloan, 142. Salyers v. Ross, 322. Sample v. Davis, 214. 468 CASES CITED. [The figures refer to pages.] Samuel v. Howarth, 173, 174, 233. v. Zachery, 339. Sanborn v. Flagler, 110. Sanders v. Bagwell, 157, 162. v. Etcherson, 28. v. Forgasson, 136. v. Weelburg, 341, 344, 350, 351. Sanderson, In re, 226. v. Aston, 165, 202. San Diego Water Co. v. Steam- ship Co., 385. Sanford v. Willetts, 383. Sangster v. Com., 370. San Jose v. Welch, 214. San Roman v. Watson, 43. Sans v. People, 162. Sapp v. Aiken, 300. v. Faireloth, 95. Sargent v. Salmond, 295, 327, 328, 334. v. Wallis, 379. Sasscer v. Young, 141. Satterfield v. People, 214. Savage v. Bank, 56. v. Fox, 50. v. Putnam, 243, 297. Savage's Adm'r v. Carleton, 195. Savings Bank of Hannibal v. Hunt, 188. Savings Bank v. Scott, 60. Sawyer v. Chambers, 254. v. Fernald, 51. Scales v. Cox, 196. Scanland v. Settle, 288. Scarlett v. Stein, 107. Scheid v. Leibschultz, 46. Schermerhorn v. Conner, 223. Schlatre v. Greaud, 82. Schlessinger v. Dickinson, 32. Schlussel v. Warren, 179. Schmelz v. Rix, 290. Schmidt v. Coulter, 344. v. Schmaelter, 45. Schneider v. Com., 397. v. Schiffman, 360, 362, 364. Schock v. Miller, 252. Schoenewald v. Dieden, 282. Scholefield v. Templer, 250. Scholze v. Steiner, 273. School Dist No. 80 v. Lapping 36. Schoonover v. Allen, 278, 280 314. v. Osborne, 259. Schott v. Youree, 386. Schrami v. Werner, 321. Schreiber v. Worm, 221. Schroeppell v. Shaw, 229. Schryver v. Hawkes, 42. Schuff v. Pflanz, 368. Schultz v. Crane, 117. v. Howard, 859. Schwartz v. Hyman, 129.i Scofield v. Churchill, 220. v. Gaskill, 346. Scot v. Stephenson, 293. Scott v. Bryan, 95. v. Calkin, 362. v. Harris, 181. v. Nichols, 309. v. Saffold, 178, 179, 180. v. Scruggs, 149. v. State, 214. v. Thomas, 85. v. Timberlake, 296. Scotten v. Fegan, 371. v. State, 64, 74. Scott's Appeal, 281. Screwmen's Benevolent Ass'n v. Smith, 67, 69. Scribner v. Adams, 351. Seacord v. Morgan, 380. Searight's Estate, 289. Searing v. Berry, 285. Sears v. Swift, 26. Seaton v. Heath, 12. v. McReynolds, 38. Seattle Crockery Co. v. Haley, 198, 383. Seaver v. Bradley, 32. Sebastian v. Bryan, 262. v. Johnson, 70. Second Bank v. Hill, 228. CASES CITED. [The figures refer to pages.] 469 Second Nat. Bank v. Diefendorf, 22, 258, 302. v. Gaylord, 145. Security Ins. Co. v. St. Paul Co., 333, 340. Sefton v. Hargett, 45. Seibert v. Thompson, 351. v. True, 289. Seiple v. Elizabeth, 263. Seixas v. Gonsoulin, 281. Semple v. Atkinson, 182. Senour v. Maschinot, 43. Serre e Hijo v. Hoffman, 237. Sevier v. Roddie, 304. Seward v. Huntington, 291. Sexton v. Sexton, 348. Seymour v. Mickey, 363. v. Van Slyck, 245. Shackamaxon. Bank v. Yard, 190, 207. Shadburne v. Daly, 239. Shaeffer v. Clendenin, 351. Shamburg v. Abbott, 17. Shannon v. Com., 371. v. Dodge, 251, 276, 381. Shapleigh Hardware Co. v. Wells, 82. Sharkey v. McDermott, 113. Sharon v. Sharon, 233. Sharp v. Allgood, 37, 38, 76. v. U. S., 39. Sharpe v. Smith, 391. v. Speckenagle, 237. Shaw v. Loud, 309. v. Tobias, 64. Shearer, Appeal of, 160. Shed v. Pierce, 249. Sheehan v. Carroll, 316. Sheidle v. Weishlee, 281. Sheid v. Stamps, 109. Shelton v. Farmer, 342. v. Smith, 214, 379. Shenandoah Nat. Bank v. Ayres, 196. Shepard v. Ogden, 298, 313. v. Phears, 223. Shepherd v. May, 82. Sheppard v. Collins, 73, 75. Sherburne v. Paper Co., 130. Sherman v. Black, 6, 302. v. Foster, 352. v. Harbin, 66. v. Mulloy, 130. v. Pedrick, 224. v. State, 396. Sherrell v. Goodrum, 200. Sherrod v. Dixon, 289, 290. v. Woodard, 314, 329. Sherwood v. Collier, 286. v. Stone, 92. Shewell v. Knox, 26. Shickle, Harrison & Howard Iron Co. v. Water Works Co., 115. Shields v. Middleton, 97. v. Smith, 394. v. Titus, 113. Shlmer v. Hightshue, 169. v. Jones, 195. Shine's Adm'r v. Bank, 115, 125. Shi,ppen's Adm'r v. Clapp, 227. Shirley v. Shirley, 109. Shoemaker v. Benedict, 241. Shook v. Vanmater, 98. Showles v. Freeman, 267. Shubrick's Ex'rs v. Russell, 178. Shupe v. Galbraith, 28, 56. Shuttleworth v. Levi, 255. Sibley v. McAllaster, 309. Sibley's Ex'rs v. Stull, 139. Siebeneck v. Anchor, 172. Sigourney v. .Wetherell, 136, 178, 185. Sikes v. Quick, 303. Silvester, In re, 208. Silvey v. Dowell, 341, 351. Simmons v. Camp, 344. v. Guise, 177. Simms v. Barefoot's Ex'rs, 255. Simonds v. Heinn, 380. v. Steele, 7, 107, 115. Simonson v. Grant, 166. Simonton v. Boucher, 274. Simpson v. Com., 390. v. Gardiner, 282. v. Griffin, 316. 470 CASES CITED. [The figures refer to pages.] Simpson v. McPhail, 288. Smith v. Doak, 36, 152. v. Nance, 91, 97. v. Easton, 85. v. Robert, 293. v. Erwin, 229. v. Simpson, 238. v. Pah, 84. Simpson's Ex'r v. Bovard, 11. V. Finch, 364. Sims v. Harris, 257. v. Freyler, 149.- v. Wallace, 296. v. Gillam, 237, 289. Sinclair v. Redington, 331. v. Gummere, 200. Singer Mfg. Co. v. Bennett, 264, V. Harbin, 288. 323. v. Hodson, 348. y. Boyette, 168. v. Hyde, 181. v. Hester, 119. v. James, 318. v. Littler, 7, 144. v. Jones, 110. Singer v. Troutman, 195. v. Josselyn, 67. Singleton V. Townsend, 342, 349. v. Kinney, 312. Singstack's Bx'rs v. Harding, 110. v. Kitchens, 398. Sipe v. Taylor, 279. v. Latimer, 282. Sison v. Kidman, 9. v. Loomis, 7. Sizer v. Ray, 17. v. McLeod, 231, 288. Skellinger v. Yendes, 31, 74. V. Mason, 179, 329, 330, 332, Skiff v. Cross, 283. 338, 339. Skillin v. Merrill, 342. v. Mayo, 93. Skinner v. Hill, 82. v. Molleson, 52, 115, 117, 118 Skrainka v. Rohan, 328. 121, 153, 154, 217. Slagle v. Anderson, 208. v. Montgomery, 118, 259. v. Entrekin, 378. v. Morrill, 323, 324. v. Forney, 208. v. Northrup, 49. Sleigh v. Sleigh, 310. v. Peoria County, 38, 123. Sloan v. Case, 371. v. Railroad Co., 217. Sloo v. Pool, 329, 338, 339. v. Rice, 147, 159. Small v. Currie, 71, 186. v. Rines, 311. v. Smith, 38. v. Roby, 169. Smart v. Cason, 391. v. Rogers, 134. Smith v. Allen, 117. v. Rumsey, 282, 285, 327, 330 v. Anthony, 32. 337. v. Ass'n, 247. v. Sayward, 304. v. Ballantyne, 207. v. Shelden, 1, 17, 150, 171 v. Bank, 3, 67. 183. v. Bland, 377. v. Smith, 323. v. Butler, 46. v. Smithson, 141. v. Clopton, 152, 197. v. Staples, 308. v. Com., 394. v. State, 252, 334. v. Conrad, 351. v. Steele, 81, 184. v. Crease, 177. v. Swain, 287. v. Crooker, 41, 170. v. Townsend, 151. v. Crouse, 381. v. Tunno, 171. v. Dann, 29. v. U. S., 163. v. Dickinson, 260. v. Van Wyck, 116, 129. CASES CITED. LTlie figures refer to pages.] 471 Smith v. Weed, 56. v. Whitten, 135, 199. v. Winter, 185. Smith's Ex'rs v. Anderson, 326. Smyley v. Head, 67, 235, 236. Smyth v. Lynch, 78. Snell v. Warner, 45, 307. Snevily v. Bkel, 127. v. Johnston, 54. Snider v. Greathouse, 304. Snyder v. Click, 26, 29. v. Frankenfield, 273. v. Robinson, 17. v. State, 207. Socialistic Co-operative Pub. Ass'n v. Hoffman, 202. Solary v. Stultz, 28, 30, 45, 182. Sollee v. Neugy, 258, 259. Somersall v. Barneb'y, 25. Somers v. Johnson, 352. v. Pumphrey, 60. Somerville v. Marbury, 229. Soule v. Norwood, 240. Southerland v. Fremont, 362. Southwark Bank v. Gross, 161. Soverhill v. Suydam, 377. Spain v. Clements, 371. Sparkman v. Gove, 299. Sparks v. Bank, 193, 203. v. Childers, 287. Spencer v. Allerton, 360. v. Houghton, 253. Speyer v. Desjardins, 113. Spicer v. State, 254. Spies v. Gilmore, 360. Spilman v. Smith, 310. Spokane & I. Lumber Co. v. Loy, 268. Sponhaur v. Malloy, 308. Spraker, The Hattie M., 280. Sprigg v. Bank, 183, 264, 265. Springer v. Dwyer, 272. Springer Lithographing Co. v. Graves, 172. Springfield Engine & Thresher Co. v. Park, 272. Spring v. George, 226. Sproat v, Com., 400. Spurgeon v, Smltha, 247. Spurlock v. Earles, 377. Stadt v. Lill, 109. Stafford Bank v. Crosby, 155. Stafford v. Christian, 164. v. Low, 126, 390. Stahl v. Berger, 42. Stallings v. Bank, 224. v. Johnson, 180. Stallworth v. Preslar, 308, 328. Stamford Bank v. Benedict, 246, 277, 278. Standard Oil Co. v. Holmes, 268. Standley v. Miles, 52, 118. Stanford v. Connery, 314', Stanley v. McElrath, 300, 310. Stark v. Fuller, 218. Starr v. Com., 393. v. Millikin, 211, 221. State v. Allen, 37, 399. v. Anderson, 263. v. Atherton, 221. v. Aubrey, 395. v. Austin, 44. v. Baker, 271. v. Baldwin, 395. v. Barrett, 214, 220, 377. v. Bateman, 200. v. Becker, 394. v. Beebee, 401. v. Benton, 64. v. Benzion, 395. v. Berning, 220. v. Bilby, 379. v. Birchim, 390. v. Blake, 239. v. Bonner, 214. v. Brantley, 255. v. Breen, 395. v. Brooks, 395. v. Brown, 396. v. Carleton, 175. v. Churchill, 37, 39, 125.) y. Cobb, 394. v. Cone, 398. v. Conover, 369. v. Corey. 200. v. Cornig, 401. 472 [The State v. Coste, 233. v. Crensbauer, 378. v. Crooks, 199. T. Cunningham, 392. T. Davidson, 400. v. Denny, 401. v. Doane, 395. v. Doyal, 393. v. Emily, 400. v. Evans, 125. v. Felton, 200. v. Findley, 157. v. Flinn, 64. v. Forno, 396. v. Fortinberry, 237. v. Gage, 383. v. Glenn, 394. v. Gregory, 377. v. Hancock, 395. v. Harney, 75. v. Heisey, 75. v. Hewitt, 76. v. Hill, 78, 375. v. Holmes, 399. v. Horn, 75, 263, 393, v. Houston, 395. v. Hull, 321, 379. v. Jennings, 370. v. Jones, 390, 398. v. Kraner, 401. v. Lanier, 374. v. Lansing, 368. v. Le Cerf, 392. v. Lingerfelt, 392. v. Long, 214. v. McDonald, 43. v. McFetridge, 270. v. McGuire, 400. v. McKeon, 383. v. Mackay, 394. v. McMichael, 393. v. McNeal, 398. v. Mahon, 392. v. Mann, 190. v. Martel, 395. v. Martin, 275, 400. v. Medary, 118. v. Meier, 393. CASES CITED, figures refer to pages.] State v. Merrihew, 390, 899. v. Morgan, 391. V. Moses, 220. v. Nevin, 375. v. Orsler, 398. v. Parker, 233, 249. v. Peck, 38, 39, 43, 70. v. Powell, 188, 201, 263. v. Purcell, 74. v. Reaney, 399. v. Rhoades, 263, 275. v. Ridgley, 390. v. Ruff, 368. v. Scott, 378, 393, 398, 399. v. Shobe, 383. v. Sloane, 212. v. Smith, 123, 395. v. Soale, 200. v. Sooy, 65, 66, 67, 71, 201. v. Spear, 391. v. Stephens, 213. v. Stewart, 395. v. Stommel, 393. v. Stroop, 200. 399. v. Sureties, 157, 390, 391. v. Tennant, 390. v. Thompson, 395. v. Tieman, 395. v. Toomer, 263. v. Trahan, 393. v. Traphagen, 400. v. Van Pelt, 153. v. Vion, 72. v. Warren, 400. v. Wayman, 189, 268, 269. v. Weaver, 390. v. Weideman, 390. v. Whitson, 395. v. Wiley, 64, 74. v. Wilson, 394, 395. v. Wooten, 390. v. Young, 34, 41, 42, 199, 200, 396. State Bank at Elizabeth v. Chet- wood, 202. State Bank at New Brunswick t. Mettler, 97. CASES CITED. [The figures refer to pages.] 473 State Bank at Trenton v. Evans, 39. State Bank of Lock Haven v. Smith, 230, 277. State Bank of Pike v. Brown, 275. State Bank of South Carolina v. Knotts, 240. State ex rel. Attorney General v. Churchill, 36. State ex rel. Barnes v. Lewis, 37. State ex rel. Board of Com'rs of Bladen County v. Clarke, 374. State ex rel. Board of Com'rs of La Porte County v. Van Pelt, 163. State ex rel. Bobb v. Bergfeld, 290. State ex rel. Brown v. Baker, 78. State ex rel. Coleman v. Cason, 275. State ex rel. Griswold v. Roberts, 135. State ex rel. Harris v. Tucker, 368. State ex rel. Howell County v. Findley, 63, 64. State ex rel. Jackson Tp. v. Berg, 158. State ex rel. Knapp, Stout & Co. v. Finn, 322. State ex rel. Lemonnier v. Beard, 368. State ex rel. McCarty v. Pepper, 38, 41, 78, 170. State ex rel. Metsker v. Mills, 263. State ex rel. Midgett v. Matson, 252. State ex rel. Mississippi County v. Moore, 375. State ex rel. Moore v. Sandusky, 39. State ex rel. Price v. Hinsdale- Doyle Co., 256. State ex rel. Saline County v. Sappington, 199. State ex rel. Tp. v. Powell, 374. State Nat. Bank v. Haylen, 259. State, to Use of Barber, v. Ham- mond, 147. State, to Use of Betts, v. Purdy, 134. State, to Use of Bothrick, v. Pot- ter, 38. State, to Use of Buchanan Coun- ty, v. Smith, 247. , State, to Use of Carroll County, v. Roberts, 174, 175. State, to Use of City of St. Louis, v. Thornton, 122. State, to Use of Frank, v. Frank's Adm'r, 117. State, to Use of Garrett, v. Farm- er, 369. State, to Use of Gates, v. Fitz- patrick, 369. State, to Use of Guernsey Coun- ty Com'rs, v. Findley, 74, 263. State, to Use of Haines, v. Al- den's Securities, 247. State, to Use of Holmes County, v. Swinney, 175. State, to Use of Maries County, v. Johnson, 200. State, to Use of Oregon County, v. Thomas, 257. State, to Use of Southern Bank, v. Atherton, 70, 203, 252. State, to Use of Story, v. Jen- nings, 275, 370. State, to Use of Town of Peru, v. Porter, 36. State, to Use of Treasure Stove Works, v. Proudfoot, 31. State, to Use of Wyandot County, v. Harper, 374. Staver & Walker v. Locke, 118. Stayner v. Joice, 161. Steadman v. Guthrie, 56. Stearns v. Bates, 289. v. Hall, 107. v. Irwin, 298. v. Sweet, 178. 474 CASES CITED. [The figures refer to pages.] Stebbins v. Willard, 282. Steel v. Auditor General, 61. v. Dixon, 351. Steele v. Buck, 234. v. Mealing, 341, 344. v. Souder, 241. v. Towne, 85. Steelman v. Mattix, 397, 398. Stein v. Jones, 168. Stelle v. Lovejoy, 147. Stenhouse v. Davis, 284. Stephens v. Bank, 196, 225. v. Crawford, 73, 263. v. Graham, 161. v. Shafer, 275. Stephenson v. Taverners, 137. Sterling v. Stewart, 19, 243. Sternberg v. State, 393. Sterne v. Bank, 225. Sterne y. McKinney, 229. Stern v. Nussbaum, 238. Stetson v. Bank, 274. Stetson & Post Mill Co. v. Mc Donald, 256. Stevens v. Allmen, 199. v. Cooper, 249, 288. v. Oaks, 149, 151. v. Partridge, 167. ■ v. Stevens, 199. v. Tucker, 321, 350. Steward v. Welch, 289. Stewart v. Behm. 77. v. Campbell, 85. t v. Davis, 231. v. Glenn, 7. v. Goulden, 339, 340. v. Johnston, 199. v. Knight & Jilson Co., 26, 144. v. Levis, 243. v. Parker, 149, 151, 155. Stillwell v. Aaron, 152, 171. ,v. Bertrand, 236. v. How, 324. Stinson v. Brennan, 308. Stockmeyer v. Oertling, 321, 325. Stockridge v. Schoonmaker, 126. Stockton v. Coleman, 72. Stokes v. Hodges, 19. v. People, 395. Stone v. Bond, 55, 254. v. Buckner, 338, 339. v. Farwell, 330. v. Hammell, 309. v. Rockefeller, 22, 136, 223. v. Seymour, 245, 246. v. Walker, 102. v. White, 57. Stoner v. Millikin, 76. Stone's River Nat. Bank v. Wal- ter, 180. Storms v. Storms, 277. v. Thorn, 147, 227. Storm v. U. S., 49. Stothoff v. Dunham; 339, 350. Stout, In re, 293. v. Ashton, 141. Stovall v. Adair, 324. v. Banks, 378. v. Com., 78. Stover v. Tompkins, 82. Stowell v. Goodenow, 141. Straight v. Wight, 26. Strain v. Babb, 371. Stratton v. Heuser, 338. Straus v. Beardsley, 129. Street v. Chicago Co., 137. v. Laurens, 200. Strickler v. Gitchel, 325. Strohecker v. Cohen, 97. Strong v. Blanchard, 315. v. Foster, 228. v. Giltinan, 275. Strunk v. Ocheltree, 369. Stubbins v. Mitchell, 300, 330. Stull v. Hance, 125. v. Lee, 267. Sturges v. Circleville, 126. Sturtevant v. Randall, 364. Sublett's Adm'r v. McKinney, 283, 286, 287. Sullivan v. Dwyer, 196. v. Field, 145, 146. V. State, 227. CASES CITED. [The figures refer to pages.] 475 Suman v. Inman, 92. Summerhill v. Tapp, 147, 150, 151, 229. Summers v. Barrett, 222. Sumner v. Bachelder, 290. v. Rhodes, 282. Sumpter v. Wilson, 382. Supervisors of Omro v. Kaime, 375. Supervisors of Rensselaer v. Bates, 214. Supplee v. Sayre, 328. Susong v. Vaiden, 207. Sutherland v. Phelps, 380. Sutton v. Grey, 92, 99. Suydam v. Vance, 153. Swain v. Wall, 327, 340. Swank v. State, 394. Swan v. Nesmith, 92. v. Patterson, 278. v. Smith, '281. Sweet v. Jeffries, 283. v. McAllister, 122. Sweetser v. French, 78, 79. Swem v. Newell, 305. Swift v. Beers, 255. v. Crocker, 298. v. Jones, 221. v. Pierce, 106. v. Plessner, 383. Switzer v. Baker, 126. Swope v. Forney, 49. Sylvester v. Downer, 22, 143, 360. Symmons v. West, 126. Tabor v. Clark, 385. Taintor v. Taylor, 397, 399. Talbot v. Gay, 139. v. Wilkins, 277. Tallman v. Franklin, 107. Talmadge v. Williams, 117, 118. Talman v. Bank, 62. Tandy v. Elmore-Cooper Co., 59, 72. Tankersley v. Anderson, 318. Tapley v. Martin, 139. Tardy v. Allen, 284. Tarr v. Ravenscroft, 331, 339. Tarver v. Nance, 169. Tatum v. Tatum, 284. Taussig v; Reid, 130, 139, 145, 146. Taylor v. Allen, 85, 113. v. Bank, 203, 291. v. Binney, 260. v. Davis, 197. v. Drake, 85. v. Jeter, 224. v. Johnson, 159. v. Lohman, 65. v. McClung, 32, 258, 259. v. Means, 334. v. Morrison, 344, 351. v. Mygatt, 377. v. Reynolds, 329, 338. v. Savage, 321, 325, 328, 333, 343. v. Scott, 149. v. Short, 249. v. Shouse, 26. v. Smith, 117. v. Soper, 128. v. Taintor, 392, 393, 398, 399. v. Taylor, 135, 140. v. Tolman, 30. v. Wetmore, 117, 258. Taylor Co. v. King, 38, 70. Taylor Dist. Tp. v. Mofton, 374. Taylor, Thomas & Co. v. Wight- man, 55. Tazewell's Ex'r v. Saunders, 268. Teaff v. Ross, 227. Teberg v. Swenson, 295, 298. reel v. Tice, 140, 380. Teeter v. Pierce, 344. Temple St. Cable Ry. v. Hellman, 273. Templeton v. Shakley, 225. Ten Eyck v. Brown, 140. v. Sayer, 384. Tenney v. Prince, 48, 51, 54, 360, 363. Terrell v. Smith, 227. Territory v. Conner, 390. 476 CASES CITED. [The figures refer to pages.] Tessier v. Crowley, 63. Teutonia Nat. Bank y. Wagner, 264. Texas City Imp. Co. v. Griswold, 223. Thalheimer v. Crow, 272. Tharp v. Parker, 151. Thayer v. Daniels, 312, 313. v. King, 175. y. Luce, 107. v. Rock, 86. Thigpen v. Price, 137. Third Nat. Bank v. Harrison, 228. v. Owen, 66. v. Shields, 225, 288. Thomas v. Bleakie, 37, 38. v. Browder, 214. v. Churchill, 85, 113. v. Cook, 90, 327. v. Croft, 56. v. Dodge, 101. v. Hinkley, 75. v. Kinkead, 373. v. Liebke, 294, 295. v. Mann, 195. v. Markmann, 386. v. Steele, 367. v. Stetson, 171. v. Wason, 225. v. Watkins, 34. v. Woods, 143, 223. v. Wright, 126. Thompson v. Adams, 252. v. Blanchard, 51. v. Buckhannon, 75, 254. v. Clubley, 365. v. Coffman, 152. v. Dickerson, 220. v. Hibbs, 337. v. Lack, 253. v. Lockwood, 255. v. Marshall, 175. v. Massie, 157, 162. v. Perkins, 92. v. Prouty, 121. v. Robinson, 194, 196, 229. V. Sanders, 323. Thompson v. State, 189. v. Taylor, 138, 289, 317. v. Trustees, 374. v. Watson, 196. v. Wilson's Ex'r, 303. v. Young, 186. Thompson & Thompson v. Brown, 360. Thomson y. MacGregor, 219. Thomssen v. Hall County, 375. Thornburgh v. Madren, 266. Thorn v. Pinkham, 176. Thornton y. Bank, 290. v. Dabney, 153. v. Guice, 94. v. Thornton, 219, 229, 237. Thorp v. Coal Co., 82. Thurber v. Corbin, 17. Thurston v. James, 136. Ticonic Bank v. Johnson, 228. Tidball v. Halley, 37. Tidioute Sav. Bank v. Libbey, 260. Tieman v. Haw, 369. Tiffany v. Willis, 222. Tighe v. Morrison, 93, 98. Tilford y. James, 290. Tillinghast y. Merrill, 375. v. Nourse, 241. Tillotson v. Rose, 299. Tillson v. State, 43. Tinker v. McCauley, 260. Tissue v. Hanna, 128, 141. Titcomb v. McAllister, 332, 352. Tobey v. Ellis, 184. Tobias y. Rogers, 238, 326, 347, 348. Todd v. Jackson, 373. v. School Dist., 171. v. Tobey, 96. Toles v. Adee, 74. Tolle y. Boeckeler, 289. Tom v. Goodrich, 300. Tomlinson v. Gill, 100. Toole y. Crafts, 360. Toomer v. Dickerson, 159, 227. Tootle v. Elgutter, 128. Topping y. Windley, 371. CASES CITED. [The figures refer to pages. 1 477 Torp v. Gnlseth, 277, 284. Torrence v. Alexander, 151. Toucey v. Schell, 269, 325. Toussaint v. Martinnant, 294. Towne v. Grover, 86. Town of Lyndon v. Miller, 263, 368. Town of Norwalk v. Ireland, 369. Town of Plymouth v. Painter, 263. Town of Rutland v. Paige, 117. Townsend v. Long, 96. v. People, 394. v. Wagon Co., 161. v. Whitney, 284, 286. Towns v. Farrar, 223. v. Hicks, 136. v. Kellett, 39. v. Riddle, 196. Township of Crystal Lake v. Hill, 37. Tracy v. Goodwin, 369. Traders' Ins. Co. v. Herber, 66. Traders' Nat. Bank v. Clare, 19. Train v. Jones, 33. Trainor v. Board, 368. Trapnall v. McAfee, 383. Travers v. Dorr, 171. Travis v. Travis, 64. Treasurers of South Carolina v. Hilliard, 271. Treasurers of State v. Bates, 74, 274. v. Lang, 190. Treasurers v. Stevens, 31, 74. Trefethen v. Locke, 31. Trentman v. Eldridge, 151. Trescot v. Smyth, 338. Trevathan v. Caldwell, 76 Tricket v. Mandlee, 56. Trimble v. Thorne, 196. Tripp v. Vincent, 253. Trotter v. Strong, 146, 233, 249. True v. Fuller, 260. v. Harding, 50. Truesdell v. Combs, 372. Trumbull County Mtft. Fire Ins. Co. v. Horner, 264. Truscott v. King, 247. Trustees of Presbyterian Board of Publication & Sabbath- School Work v. Gilliford, 128, 136. Trustees of Schools v. Sheik, 31, 39, 41, 43, 294. v. Southard, 197, 198, 347. Trustees of Section 16 v. Miller, 219. Tucker v. State, 120, 254, 381. Tufts v. Plymouth Co., 106. Tunison v. Cramer, 267. Tunnell v. Jefferson, 295. Turnbull v. Martin, 334. Turner, Ex parte, 283. v. Collier, 214. v. Davies, 343. v. Hubbell. 88. v. Killian, 370. v. Sisson, 267. Turner's Adm'r v. Thorn, 342. Turquand, Ex parte, 293. Tuscumbia Co. v. Rhodes, 296. Tuton v. Thayer, 136, 222, 270. Tuttle v. Armstead, 98. Twiggs v. Bank, 226. Twitty v. Houser, 377. Twohy v. McMurran, 21, 129. Tyler v. Trustees, 7. v. Waddingham, 73, 139. Tynberg v. Cohen, 383. Tyson v. Sanderson, 268. Tyus v. De Jarnette, 278, 351. u Ueberroth v. Riegel, 104. Uhler v. Applegate, 171, 182. v. Semple, 295. Ulen v. Kittredge, 111. Ullery v. Kokott, 63. Ulster County Sav. Inst. v. Young, 115, 124. Unangst v. FItler, 235. v. Hibler, 126. Underwood v. Campbell, 108. v. Hossack, 54. 478 CASES CITED. [The figures refer to pages.] Underwood v. Staney, 50, 274. Union Bank v. Cooley, 224. v. Govan, 229. v. McClung, 176. Union Bank of Louisiana v. Beat- ty, 50. v. Coster, 22, 23, 26, 50, 108, 115, 118, 121, 145, 259. Union Bank of Maryland v. Bidgely, 193. Union Dist. Tp. v. Smith, 374. Union Mut Life Ins. Co. v. Han- ford, 16. Bank, 126, Union Nat. Bank v. 128. v. Cooley, 230. v. Legendre, 253. v. Rich, 289. Union Stove & Machine Works v. Caswell, 16. Uniontown Bank v. Mackey, 171. Union Trust Co. v. Motor Co., 48. U. S. v. Ambrose, 74. v. Arnold, 268. v. Backland, 160. v. Boecker, 161, 213. v. Bradley, 75, 262. v. Bunker, 338. v. Case, 170. v. Cheeseman, 125, 200, 212. v. Cochran, 245. v. Corwin, 273. v. Corwine, 164. v. Cranston, 214. v. Curtis, 268. v. Dunbar, 391. v. Eldredge, 390. v. Fordyce, 375. v. Goldstein, 390. v. Hammond, 36. v. Hartwell, 373. v. Hillegas, 173. v. Hine, 369, 370. v. Hodge, 178. v. Hunter, 283. v. Keiver, 207. v. Kirkpatrick, 204. v. Le Baron, 31. U. S. v. Linn, 47, 53, 75. v. Maloney, 115. v. Manthei, 391. v. Mark, 240. v. Morgan, 375. v. Mynderse, 74. v. Poulson, 268. v. Prescott, 374. v. Ryder, 287, 293, 312. v. Shoup, 75. v. Simpson, 229. v. Spencer, 219: v. Surety Co., 160. v. Tillotson, 159. v. Tingey, 256. v. Truesdell, 187. v. Wright, 188. United States Fidelity & Guaran- ty Co. v. Charles, 59. v. Com'rs, 115. v. Muir, 68. v. Rice, 142. United States Life Co. v. Salmon, 66, 67. Updegraft v. Edwards, 289. Upton v. Vail, 93. Urbahn v. Martin, 352. Usher v. Tyler, 313. Uzzell v. Mack, 285. Vail v. Foster, 14, 290. v. Hartman, 316, 317. Valentine v. Christie, 46. Van Arsdale v. Howard, 66. Vance v. Lancaster, 317. Van Demark v. Van Demark, 339. Van Doren v. Tjader, 360. Van Duyne v. Coope, 32. Vandyke v. Weil, 380. Van Epps v Walsh, 123. Van Etten v. Com., 371. Van Home v. Everson, 294. Van Orden v. Durham, 289, 290. Van Patton v Beals, 60. Van Pelt v. Littler, 369. Van Renselaer v. Akin, 19. CASES CITED. [The figures refer to pages.] 479 Van Rensselaer v. Kirkpatrick, 179. Van Valkenburgh v. Smith, 49. Van Winkle v. Johnson, 326, 332. Vartie v. Underwood, 138. Vary v. Norton, 81, 152, 181, 183. Vass v. Riddick, 76. Veach v. Rice, 76. Veazie v. Carr, 172. v. Willis, 76. Verratt v. McAulay, 373. , Vestal v. Knight, 182. Vias v. Com., 262, 391. Viele v. Hoag, 233. Vielie v. Osgood, 106, 110. Village of Chester v. Leonard, 28. Vincent v. Logsdon, 280, 282. Vinyard v. Barnes, 125. Vliet v. Wyckoff, 329, 339. Vogel v. Melms, 90. Volte v. Bank, 280. v. Harris, 139. Voorhies v. Atlee, 222, 223. Vore v. Woodford, 178. Voss v. Bank, 283. w Waddington v. vredenbergh, 18. Wade v Staunton, 136. Wadlington v. Gary, 227. Wadsworth v. Allen, 31, 145, 259. v. Smith, 48. JWagenseller y. Prettyman, 316, 332. Waggener v. Dyer, 252. Wagner v. Stocking, 272. Wagoner v. Watts, 236. Wainwright v. Straw, 102. Wakefield v. McKinnell, 398. Wakeman v. Gowdy, 227. Waldo t. Simonson, 85. Waldrip v Black, 305, 314, 316. Walker, In re, 289. v. Com., 400. v. Forbes, 28, 33, 144, 145, 146. v. Holmes, 63. Walker v. Holtzclaw, 124. v. Irwin, 103. v. Oglesby, 289. v. Richards, 85, 103, 112, v. Sherman, 56. v. State, 213. Wallace v. Freeman, 94. v. Jewell, 163. v. Scoles, 63. v. Wilder, 70, 71. Walla Walla County v. Ping, 157. Waller v. Campbell, 342. v. Pittman, 381. Wallis v. Dilley, 257. Walrath v. Thompson, 109. Walsh v. Bailie, 125. v. Schulz, 398. Walter A. Wood Mowing & Reap- ing Mach. Co. v. Land, 254. v. Oliver, 149. Walters v. Craft, 241. Walton v. People, 393. Wanack v. Michels, 321. Wanamaker v. Powers, 245, 252. Wann v. People, 322. Wapello Bank v. Colton, 191. Ward v. Bank, 253. v. Churn, 39, 41. v. Cloquitt, 401. v. Hackett, 37, 163. v. Henry, 303, 304, 329. v. Johnson, 147. T. Stout, 14, 150, 151, 152, 196. v. Whitney, 382. v. Wick, 183. Ware v. Adams, 51. v. Stephenson, 103. Warfel v. Frantz, 39. Warner v. Morrison, 321, 326, 328, 342. Warren v. Barker, 92. v. Branch, 65, 66. 7. Fant, 164. r. Wells, 272. v. Whitesides, 347. Warwick v. State, 378. 480 CASES CITED. [The figures refer to pages.] Washington Ice Go. v. Webster, 107, 386. Washington Iron Works y. Mc- Naught, 57. Wasson v. Hodshire, 230. Waterman t. Clark, 272. v. Resseter, 86, 90. v. Vose, 163. Water Power Co. v. Brown, 324. Waters v. Creagh, 266. v. People, 390. v. Simpson, 173, 179, 180, 182. v. Whittemore, 367. Waters' Representatives v. Riley, 350. Watertown Fire Ins. Co. v. Sim- mons, 69, 138, 141, 203, 204. Waterville Bank v. Redington, 264. Watkins v. Perkins, 104. Watson v. Jacobs, 94. v. Pague, 244. v. Read, 247. Wattles v. Hyde, 232. Watts v. Gantt. v. Shuttleworth, 218, 222. Waughop v. Bartlett, 142, 239, 241. Wayland v. Tucker, 297, 327, 328, 334. Wayman v. Jones, 150. Waymire v. State, 371. v. Waymire, 113. Wayne v. Bank, 67, 68, 229. Wayne Agricultural Co. v. Card- well, 76. Way v. Reed, 168. Weare v. Sawyer, 44, 77, 236, 237. Weatherly v. Hardman, 102. Weatherwax v. State, 400. Weaver v. Shyrock, 117. v. Tapscott, 300. y. Thornton, 275. Webbe v. Stone Co., 53. Webber v. Webber, 136. Webb v. Hawkins, 103. Webster v. Cobb, 362. v. Ela, 109. v. Le Compte, 95. v. Zielly, 111. Weed v. Calkins, 339. Weed Sewing Mach. Co. v. Max- well, 236. v. Oberreich, 177, 183. Weik v. Pugh, 224. Weil v. Thomas, 18. Weiler v. Henarie, 139, 140. v. Hoch, 195. Weimer v. Bunbury, 276. Weimer, Wright & Watkins v. Talbot, 332. Weintz v. Kramer, 370. Weir v. Mead, 40. Weir Plow Co. v. Walmsley, 125, 159, 220. Welch v. Kenny, 95. v. Marvin, 103. v. Parran, 279. v. Seymour, 188, 190. v. Walsh, 138. Weldin v. Porter, 108. Welfare v. Thompson, 152. Wells v. Dill, 44. v. Gant, 218. v. Mace, 313. v. Mann, 196, 298. v. Miller, 6, 321, 326, 327, 344. v. Monihan, 113. Wells, Fargo & Co. v. Davis, 26, 28. Wells, Fargo & Co.'s Exp. v. Walker, 66. Welsch v. Werschem, 295. Wendlandt v. Sohre, 2, 17. Wesley Church v. Moore, 277, 294, 298, 313. Wessell v. Glenn, 42. West v. Ashdown, 186. v. Bank, 277, 299. v. Belches, 138. v. Brlson, 147, 265. v. Chasten, 18, 138. CASES CITED. [The figures refer to pages.] 481 West v. Lara-way, 61. v. O'Hara, 103. Westbrook v. Moore, 47, 267. Westcott v. King, 299. Westerman v. Means, 271. Western Building & Loan Ass'n v. Fitzmaurice, 170. Western Electric Co. v. Hart, 71. Weston v. Chamberlain, 323, 324. v. Elliott, 325. Wetzel v. Sponsler, 195. Wheatfield Tp. v. Brush Valley, 342. Wheat v. Kendall, 150. Wheatley v. Bastow, 231. Wheatley's Heirs t. Calhoun, 280. Wheeler v. Lewis, 223. v. Mayfleld, 22. v. Rohrer, 135. v. State, 399. Whereatt v, Ellis, 268, 316- Whipple v. Stevens, 241. Whitaker v. Kirby, 266. v. Richards, 38, 39, 80. Whitbeck v. Ramsay's Estate, 304. Whitcher v. Hall, 165, 213. Whitcomb v. Kephart, 89. White v. Ault, 18, 172. v. Bank, 274. v. Banks, 351. v. Blake, 398. V. Carlton, 330, 345. v. Case, 223. v. Coventry, 264. v. Duggan, 41, 42. v. East Saginaw, 124, 199. , v. Miller, 316, 330. v. Reed, 115, 129. v. Savage, 194. v. Solomonsky, 84. v. Summers, 176. v. Walker, 168, 172. v. Weatherbee, 263. Whitehead's Succession, 282.' Whitehouse v. Hanson, 322, 364. Whiteman v. Harriman, 341, 351. Childs' Suretyship — 31 White's Bank of Buffalo v. Myles, 128, 194. White's Case, 367. White's Ex'r v. White, 306. White Sewing Mach. Co. v. Hinea, 209. v. Mullins, 166, 213. Whiteside v. Ass'n, 385. Whitford v. Laidler, 39. Whiting v. Stacy, 144. Whitman v. Gaddie, 277. Whitney v. Groot, 129. v. Stearns, 109. Whitridge v. Durkee, 138. Whitsell v. Mebane, 221. Whittier v. Gould, 82. Whittle v. Skinner, 182. Whitworth v. Tilman, 316, 317. Wickler v. People, 369. Wieland r. Oberne, 273. Wiggenhorn v. Fitzgerald, 56, 72. Wiggins' Appeal, 236. Wilbur v. Williams, 231. Wilcox v. Bank, 278, 279, 352. Wild v. Howe, 181. Wild Cat Branch v. Ball, 44, 46. Wilde v. Armsby, 157. Wildes v. Dudlow, 90. v. Savage, 28, 30. Wile v. Koch, 381. v. Wright, 255. Wiley v. Moore, 42. v. Robert, 107. Wilkins v. Carter, 27, 28, 32. Willetts v. Cotherson, 238. William Deering & Co. v. Mort'ell, 25, 26, 31. William's Adm'rs v. William's Adm'rs, 299, 302, 303, 313. Williams, Ex parte, 102. v. Bacon, 111. v. Banks, 295. v. Boyce, 6. v. Boyd, 17, 185. v. Caldwell, 85. v. Corbet, 104. v. Covillaud, 175. v. Crutcher, 42. 182 CASES CITED. [The figures refer to pages.] Williams v. Ewing, 348. v. Gilchrist, 243. v. Glenn, 297, 324. v. Greer's Adni'rs, 298. v. Helme, 296. v. Lake, 107. v. Leper, 96. v. McDaniel, 396. v. Marshall, 55. v. Morris, 107. v. Morton, 199. v. Perkins, 52. v. Perry, 19. v. Reynolds, 248. v. Riehl, 327, 331 v. Shelly, 81. v. Skrpwith, 75. v. State, 395. v. Staton, 33. v. Tipton, 295. v. Woods, 111. v. Wyatt, 129. Williamson v. Cline, 57. v. Rexroat, 99. v. Woodman, 263. v. Woolf, 75. Williamson's Adm'r v. Rees, 349. Willingham v. Leake, 236. v. Trust Co., 279. Willis v. Chowning, 239. v. Crooker, 169, 380. v. Davis, 224. v. Rivers, 42. Willison v. Whitaker, 390. Willoughby v. Florence, 85. Wills v. Cutler, 99. v. Ross, 32, 52, 55, 56. v. Shinn, 85. Wilmington v. Horn, 189. v. Ling, 67. Wilmington C. & A. R. Co. v. Ling, 69, 202. Wilson v. Bevans, 101. v. Campbell, 7. v. Childress, 258. v. Crawford, 293, 302, 313. v. Dawson, 228. v. Field, 237. Wilson v. Foot, 148, 151. v. Glover, 195. v. Hinman, 18. v. King, 37. v. Langford, 181. v. McVey, 248. v. Monticello, 66. v. Powers, 180, 181. v. Roberts, 85. v. Stilwell, 299. V. Strugnell, 312. v. Tebbetts, 197. v. Vass, 95. v. Webber, 119. v. Wichita County, 375. Wilson's Adm'r v. Green, 218. Wilson Sewing Mach. Co. v. Schnell, 107. Wimer v. Shelton, 72. Winans v. Gibbs, 50. Winchell v. Doty, 127, 134, 140, 232. Windels v. Harvester Co., 52. Winder v. Diffenderffer, 316. Winnebago Paper Mills v. Travis, 26, 27, 32. Winne v. Springs Co., 182, 248. Winneshiek County v. Maynard, 188. Winniger v. State, 399. Winn v. Sanford, 236. Winship v. Bass, 377. Winston v. Teargin, 224, 225. Winterfield v. Brewing Co., 63. Wintersoll v. Com., 395. Wise v. Miller, 26, 28. v. Ray, 110. Wiseman v. Lynn, 386. v. Thompson, 113. Witherby v. Mann, 300, 330. Withers v. Berry, 139. Withrow v. Com., 399. Witkowski v. Hern, 216 Wittich v. O'Neal, 385. Wittmer v. Ellison, 181. Wittmer Lumber Co. v. Rice, 63. Woffington v. Sparks, 194. Wofford v. TJnger, 240. CASES CITED. [The figures refer to pages.] 483 Wolcott v. Hagerman, 341. Wolf v. Driggs, 37. v. Fink, 153, 253. v. Madden, 265. v. Shillito, 129. v. Stix, 237. Wolff v. Koppel, 92. Wolmershausen v. Gullick, 329, 332, 348. Wolters v. Henningsan, 17. Wood, Ex parte, 293, 302. y. Benson, 52, 108. v. Corcoran, 95. T. Fisk, 123, 267. v. Hollander, 384. v. Leland, 349. v. Orford, 380. v. Patch, 104. v. Perry, 325, 328, 329. v. Priestner, 121. v. Savings Co., 228. v. Steele, 159, 161. v. Tunnicliff, 186. Woodbum v. Carter, 178, 180. v. Friend, 229. Woodbury v. Bowman, 319. Woodman v. Mooring, 243, 246. Woodruff v. State, 272. Woods v. Sherman, 223. Woodstock Bank v. Downer, 135, 139, 270. Woodward v. Paine, 372. v. Pell, 281. v. Pickett, 109. Woodworth v. Bank, 161. v. Bowes, 321. Wooldridge v. Norris, 137. Woolfolk v. Plant, 182. v. State, 398. Wooley v. Van Volkenburgh, 270. Woolley v. Banking Co., 227. Woonsocket Inst. v. Ballou, 241. Woonsocket Rubber Co. v. Ban- igan, 256. Worcester Bank v. Hill, 239. Worchester Mechanics' Sav. Bank v. Hill, 56. Worden v. Salter, 50, 362. Work v. Cbwhick, 107. Wormleighton & Hunter's Case, 326. Worrall v. Munn, 109, 111. Worrell v. Forsyth, 61. Worth v. Cox, 175. Worthley v. Emerson, 247. Wray v. People, 401. Wren v. Pearce, 50, 108. v. Peel, 146. Wright v. Austin, 137. v. Dyer, 140. v. Flinn, 71. v. Griffith, 28, 129. v. Grover, 283, 338. v. Harris, 42. v. Johnson, 169, 215. v. Keyes, 74, 75. v. Knepper, 234. V. Lang, 377. v. Remington, 67, 72. v. Russell, 206. v. Schmidt, 63. v. Storrs, 153. v. Watt, 141. v. Weeks, 107, 108. Wright's Adm'r v. Stockton, 197. Wulff v. Lindsay, 84. Wybrants v. Lutch, 174. Wyckoff v. Gardner, 350. Wylie v. Dickenson, 55. Wyman v. Robinson, 268. v. Yeomans, 157, 161. Wynn v. Brooke, 316. Wythes v. Labouchere, 66. Yale v. Edgerton, 51, 94, 95. Yancey v. Brown, 26. Yarborough v. Com., 393, 399. Yates v. Donaldson, 149, 171, 264. v. Mead, 281. Yeager's Appeal, 278. Yeary v. Smith, 182. Yeates v. Walker, 216. Yerby v. Grigsby, 111. Yonge v. Reynell, 277. 484 CASES CITED. [The figures refer to pages.] York County Mut. Fire Ins. Co. v. Brooks, 77, 170. Yorkshire By. Wagon Co. v. Ma- clure, 236, 237. Young, Ex parte, 275. v. Brown, 50, 129. v. Clark, 339. v. Cleveland, 230. v. Lyons, 337, 339. v. Morgan, 280. v. Patterson, 257. v. People, 377. Young v. Pickens, 233. v. Shunk, 321, 333. v. State, 31. v. Vough, 285. Yount v. Carney, 373. Zabriskie v. Railroad Co., 235. Zane v. Kennedy, 179. Ziegler v. Hallahan, 157, 159. Zolliekoffer t. Seth, 350. INDEX. [the figures refer to pages.] A ABANDONMENT, see "Relinquishment." ABBREVIATIONS, meaning of may be shown, 107. ABOLISHMENT, of court discharges bail, 398. ABSENCE, of principal ■will not excuse bail, 391, 393. ABSOLUTE GUARANTY, see "Guaranty." ACCEPTANCE, see, also, "Acceptor." necessary to create contract of suretyship, 24. necessity of formal notice of, 25. of offer to become surety or guarantor, 25, 31-33. of official bond, indicates approval, 31. by obligee presumes assent to known conditions, 41. of guaranty, makes it effective, 131. notice to one joint guarantor sufficient, 33. oral, of negotiable instrument, statute of frauds, 97. of bill of exchange, 354, 358. ACCEPTOR, see, also, "Acceptance." is liable on oral promise, 97. may be shown to be a co-surety, 324 (note 24). ACCOMMODATION PARTIES, definition, 364. may occupy any position on instrument, 364. are liable in capacity assumed, 365. are sureties, 3, 364. are not co-sureties, 323 (note 19). may be shown to be co-sureties, 324. are not liable to accommodated party, 365. Childs' Suretyship (485) 486 INDEX. [The figures refer to pages.] ACCOMMODATION PARTIES— Cont'd. entitled to indemnity from principal, 302 (note 66). entitled to subrogation, 280. ACCOUNTS, of principal, failure of obligee to examine, 203. falsification of, is a default, 221. ACKNOWLEDGMENT, of bond, omission of, no defense to surety, 75. of liability by surety, is waiver of defense, 256. ACTION, see, also, "Pleading" ; "Evidence" ; "Damages" ; "Indem- nity" ; "Contribution"; "Guarantor"; "Guaranty"; Sure- ty"; "Subrogation"; "Notice"; "Creditor"; "Judgment"; "Judicial Bonds" ; "Jurisdiction" ; "Principal." institution of, consideration for guaranty of costs, 58. not to proceed with, is consideration for contract, 56 (note 140). withdrawal of, is consideration for contract, 56. change as to form of, is an alteration, 169. being subject to, when breach of contract, 217. ACT OF CREDITOR OR OBLIGEE, as defense to surety, 210, 217, 397, 398. not if lawful, 219. ACT OF GOD, discharges bail, 397. ACT OF LAW, discharges surety, 233 (note 530), 397, 398. alteration or extension of time by, 160. ACTS, see, "Act of Creditor or Obligee"; "Official Bond"; "Surety." ADDITION, see "Alteration" ; "Signature." ADDRESSEE, see "Guaranty." ADEQUACY, of consideration, 48, 55. ADJOURNMENT, see "Delay." ADMINI STRATOR, see, also, "Personal Representative." surety not liable if secret agreement between principal and ob- ligee, 218. surety not liable to creditor if principal is creditor's agent, 297 (note 36). INDEX. 487 [The figures refer to pages.] ADMISSIONS, of principal, when evidence against surety, 274. ADVANCEMENTS, by creditor to principal, consideration for, 54. ' more or less than limit named by guarantor, whether an altera- tion, 162. AFFIRMANCE, see "Appeal Bond." AGENT, see, also, "Principal"; "Official Bond." husband and wife are not for each other, 198. partner is, of firm, 77. one person may be, for creditor and surety, 110. authority of, need not be in writing, 78. authority to execute sealed instrument must be under seal, 111. sufficiency of notice to, 40. ratification of acts of, 77. of surety can bind him, 77. creditor or principal cannot be, 78, 110. to sign memorandum required by statute of frauds, 106, 110, 111. to fill blanks, principal can be, 41, 78. to make delivery, 35, 38, 78. to renew, principal is not, 154. to give statutory notice to sue, 197. to make payment, 299. or bail, authority of, 392. signing name of principal without authority, 44 (note 83), 77. of creditor, -wife is not, 195, note 321. surety cannot be, 110. to receive, 35. when concealment by, is fraud on surety, 67. when knowledge of defaults by, terminate contract, 204. notice to sue can be given to, 195 (note 321), 198. del credere, contract of, not within statute of frauds, 91. ,bond of, is an official bond, 367. liability of surety on, 119 (note 24). surety for officer not liable for his acts as, 211, 372. of creditor becoming principal of bond, makes creditor the prin- cipal, 297 (note 36). commissions of, consideration for suretyship, 57. bond given to, who can enforce, 257 (note 667). special guaranty addressed to, when enforceable by his principal, 258. 488 INDEX. [The figures refer to pages.] AGREEMENT, see "Essentials"; "Guaranty"; "Suretyship"; "Negotiable In- strument." ALIEN ENEMY, no defense to surety that principal is, 235, 242. ALLEGATIONS, see "Pleading." ALTERATION, see, also, "Change." discharges surety, 157-160, 380, 390. defense of, not waived by receipt of consideration, 157. will not affect innocent parties, 157, 159. addition is, 43, 162, 163. erasure is, 163, 164. filling blanks, 41. as to place, 161, 164. change of principal's territory is, 166 (note 176). as to time, 160, 172, 213. See, also, "Extension of Time." as to names, 43, 163. forged, 170 (note 202). as to amount, 162, 380. as to interest, 162. as to medium of payment, 164. of negotiable instruments, 160, 163, 170 (note 202). by making instrument negotiable, 164. by making joint and several contract joint, 164. by adding provision for attorney fees, 165 (note 166). as to capacity of promisor, 164. as to seal, 164. by making conditional guaranty absolute, 164 . of bonds, 169. of lease, 168. of contract of sale, 168. of contract secured, 164. of one contract will not affect another secured by same instru- ment, 165. of building contract, 165. as to duties of principal, 166, 167. as to remuneration of principal, 166, 167. as to length of term of principal, 124 (note 48). in judicial proceedings, 169, 380 (note 26) immaterial will not discharge, 157, 158, 170. spoliation is not, 158. will not discharge if inadvertent, 155, 157, 158, 160, 163. of date, not authorized by consent to an extension of time, 155 (note 108). INDEX. 489 [The figures refer to pages.] ALTERATION— Cont'd. waiver of provisions for sole benefit of obligee is not, 165. change as to collateral matters is not, 165, 166. change of principal's place of business is not, 161 (note 137). assignment of lease is not, 168. advances less than or in excess of limit named, 162. court will not make, 120, 125. ALTERNATIVE, performance in, 216. AMBIGUITIES, in memorandum required by statute of frauds, 108, 109. in guaranty, how cleared, 128. can be explained by oral evidence, 116. taken against party using, 120. AMENDMENT, See "Statute"; "Alteration." AMOUNT, see "Alteration"; "Contribution"; "Damages"; "Guaranty"; "Surety." ANNUAL OFFICE, meaning of term, 188. how created, 191. liability of surety for, 119, 186, 187, 188, 190. ANOMALOUS INDORSEMENT, see "Indorsement." ANXIETY, damages not allowed for, 384. APPEAL, see, also, "Appeal Bond." from decision of court regarding remission of forfeiture of bail bond, 400 (note 88). APPEAL BOND, see, also, "Bond." what is, 379. corporation is not liable as surety on, 63. recital and condition of, 380. defects in, 381. must recite court, 120. estoppel of surety to attack judgment appealed from, 262. when no consideration for, 58. request to become surety on implied from taking advantage of, 307. liability of sureties on, 6, 218 (note 441), 267, 270 (note 743), 379, 380, 381. 490 INDEX. [The figures refer to pages.] APPEAL BOND— Cont'd. successive, rights and liabilities of sureties on, 251, 302, 323, 381 summary remedy on, 276. subrogation to, 281. estoppel of principal to question as to surety, 311 (note 124). APPEARANCE, see "Bail." APPLICATION, see, also, "Payment"; "Security." of dividends from bankrupt principal's estate, 238. APPOINTMENT, see, "Annual Office" ; "Official Bond." APPORTIONMENT, see, also, "Application." of proceeds of security by creditor, 226 (note 490). of security by co-surety to different debts, 352. APPREHEND, see "Bail." APPROVAL, of bonds, 31. ARBITRATORS, change as to, discharges sureties on bond to secure award, 169. extension of time by, discharges sureties, 174. ARREST, see, "Bail"; "Duress"; "Imprisonment." ASSENT, see "Consent," ASSIGNMENT, see, also, "Bankruptcy." of right of action on special guaranty, 258. ASSISTANT, is not a deputy, 373. agent of bail can appoint to arrest principal, 392 (note 29). ASSUMPSIT, see "Pleading." ASSUMPTION, of indebtedness, suretyship arising from, 4, 6 (note 20), 15, 17, 82. creditor can sue party assuming, 16 (note 54). extension of time after, discharges original debtor, 172 (note 204). by oral agreement, not within statute of frauds, 101. INDEX. 491 [The figures refer to pages.] ATTACHMENT, see, also, "Forthcoming Bond" ; "Bond." origin of, 381. may be wrongful though claim valid, 383. release of, by creditor, will discharge surety for debt, 225. surety for debt can have assignment of, to him, 286. bond, 381-383. to discharge, condition of, 382. ATTENDANCE, see "Bail." ATTORNEY, is a public officer, 367 (note 1). may be a surety, 63, 87 consideration for guaranty of claim by, 58. fees, 266. See, also, "Expenses." adding provision for, is alteration, 165 (note 166). when surety can recover from principal, 317. guaranty of collection liable for, 270. contribution for, 332. in resisting appeal not recoverable on bond, 260 (note 743). sureties on attachment bond liable for, 383. sureties on injunction bond, when liable for, 385. subrogation to, 286. AVAL, 3 (note 2). AVERMENTS, see "Pleading." AWARD, see "Arbitrators." B BAIL, see, also, "Surety." meaning of, 389. distinguished from recognizance, 388. criminal and civil, object of, 389 rights and liabilities of, 390. arrest and surrender of principal, effect, 391-393. how discharged, 218, 219, 249 (note 527), 394-400. performance by, 394. bond, see "Bond." definition, 388. object of, 388. provisions in, 395. not taken after final process, 389. requisites, 390. naming two penalties, surety liable for le'sser only, 125. 492 INDEX. [The figures refer to pages.] BAIL— Cont'd. "what is breach of, 395. forfeiture of, 400. setting aside, 400, 401. effect of payment by sureties, 389. cannot recover money paid, because principal afterwards dies, 398 (note 68). deposit in lieu of, 391. indemnity from principal, 293 (note 4), 311. can recover costs from principal, 312. cannot recover from principal if he did not sign bond, 43 (note 79). entitled to contribution, 325 (note 28). promise of indemnity to, not within statute of frauds, 90. not subrogated to rights of state, 287. sickness of, will not discharge, 401 (note 90). BAILMENT, destruction of property may discharge surety for, bailee, 234. BANK, see, also, "Corporation"; "Ultra Vires." as surety, 62. no subrogation by creditor to principal's deposit in, 283. published statements by, when constructive fraud, 68. application of principal's deposit on indebtedness, 227, 228. enforcement of special guaranty addressed to officer of, 258 (note 677). effect of change in name on special guaranty addressed to, 258 (note 676). payment with notes of, 330 (note 61). liability of sureties for loss of funds by failure of, 375. BANKRUPTCY, see, also, "Insolvency." of principal, no defense to surety, 235, 237. creditor cannot apply dividends to unsecured portion of debt, 238. as defense against surety, 306, 312. surety can prove claim against estate, 237, 293 (note 4). excepted debts, 287 (note 837), 313. of surety, 235. 238. as defense to contribution, 340, 347. co-surety can prove whole claim, 347 (note 156). payment by principal which is a preference, will not discharge surety, 244. waiver of defense of, 238. is consideration for extension of time, 182. BARRED DEBT, see "Statute of Limitations." INDEX. 493 [The figures refer to pages.] BEARER, see "Negotiable Instrument" BEGINNING, see, also, "Retroactive." of liability of surety, 210, 219. BENEFIT, see "Alteration" ; "Extension of Time" ; "Relinquishment" ; "Statute of Frauds." BET, see "Illegality." BILATERAL CONTRACT, formal acceptance of, unnecessary, 30. BILL, of exchange, see "Negotiable Instrument" ; "Drawer" ; "Indorser" ; "Acceptance" ; "Accommodation Parties." in chancery, see "Pleading." BLANKS, filling, 41, 78 (note 245). BOND, see, also, "Alteration"; "Bail"; "Appeal Bond"; "Attach- ment" ; "Administrator" ; "Guardian" ; "Injunction Bond" ; "Replevin Bond"; "Official Bond"; "Statutory Bonds"; "Voluntary Bond"; '^Personal Representative"; "Judi- cial Bonds." parts of, 119, 413. essentials of, 45, 46, 120. sureties not liable if void, 390. extorted from principal, 74 (note 231). express limitation of liability by surety, 269. signed by surety in blank, 42 (note 75). surety not liable for anything inadvertently omitted from, 212. containing more than statutory requirements, 74. valid, though executed to wrong municipality, 75. no consideration for, if improperly given, 58. failure to acknowledge is not a defense, 75. taken by de facto officer is valid, 76. takes effect from delivery, 45. delivery by part of obligors sufficient, 39 (note 66). names in body of give constructive notice of conditions as to additional signatures, 38, 39. estoppel of surety to contradict, 262. to corporation or partnership, surety estopped to deny legal ex- istence of, 261, 264. to appear at certain time, what is performance of, 213. construction of, 119. 494 INDEX. [The figures refer to pages.] BOND— Cont'd. does not cover acts of principal's subordinates* 212 (note 405}. for special duties, 192. to hold harmless, when broken, 217, 276. joint, is not made several by subsequent statute, 124 (note 48). may take effect from date, 220. successive, when cumulative, 192, 199. in legal proceedings, liability of sureties as to each other, 200, 251, 323. with forged signatures does not constitute an extension, 178 (note 240). if defective, surety on former bond not discharged, 199 (note 347). whether can be extended by oral agreement, 177 (note 231). of tobacco manufacturer, sureties remain liable though license expires, 187. when cancellation of, releases sureties, 250. loss of, does not prevent recovery on, 274. who may enforce, 256. 257. when strict compliance with conditions of, is impossible, 120. obligee, by his own act, may prevent breach of, 211, 343. for different terms, liability of sureties, 201. successive, default presumed to have occurred during period cov- ered by last, 192. summary remedy on, 276. judgment given for full amount of penalty of, 267. subrogation to, 283 (note 820). given by one partner for firm, surety cannot recover from firm 300 (note 54). improperly given, is no defense to principal against surety, 311. guaranty of, 62. BONDING COMPANY. see "Corporate Surety." BREACH, see "Bond" ; "Default." BUILDING CONTRACT, bond for, by prior agreement, valid though work begun, 52 (note 116). oral promise to pay for labor and material, 105. alteration of, 154, 159, 165, 166. See, also, "Alteration." discharge of sureties, 166, 221 (note 464). obligee cannot recover if joint tort-feasor with principal, 217 (note 441). when surety liable for liquidated damages, 271. surety may be liable for claims beyond penalty, 269. materialmen, lienholders, and subcontractors cannot enforce bond for, 256 (note 666). INDEX. 495 [The figures refer to pages,] BURDEN OF PROOF, breach of contract, 273, 274. on creditor, to show that relinquished security was unavailable, 231. to show diligence against principal, 222. on surety, to show his discharge, 233 (note 530). to show creditor's knowledge of relation, 149 (notes 174, 151). to prove principal's default occurred in prior term, 200. to show that extension is binding, 176 (note 224). to show that his defense against creditor's claim was meri torious, 316. to show that his note was taken by creditor as payment, 300 (note 59). on co-surety, to show that security was given him for another claim, 345 (note 138). to show that his disposition of security was proper, 345. BURGLARY, liability of sureties for loss of funds by, 375. BURNED PROPERTY, see "Fire"; "Destruction"; "Bailment." BUYER, see, also, "Assumption" ; "Grantor and Grantee" ; "Mort- gage" ; "Partners." oral promise to pay indebtedness of seller not within statute of frauds, 101. assuming indebtedness of seller, becomes principal, 172 (note 204). BY-LAWS, see, also, "Statute." requiring three sureties, two would be bound, 64 (note 188). contract construed with reference thereto, 114, 122, 189. surety not liable longer than term of office fixed by, 188. requiring examination of officer's accounts, not for benefit of sureties, 203. c CANCELLATION, of bond, when sureties released by, 250. CAPACITY, see, also, "Incapacity." of surety, 59, 123. of principal, 235. of drawee, drawer and indorser "warrant, 358. CASHIER, see "Bank"; "Principal." 496 INDEX. [The figures refer to pages.] CAUTIONARY, 15 (note 52). CAUTIONER, 4 (note 11). CAUTIONRY, 3 (note 2). CHANCERY, see "Equity." CHANGE, see, also, "Alteration"; "Partners." of relation, 81. of amount of judgment in appellate -court, liability of sureties on appeal bond, 380. in bonds, discharges sureties, 169. in contracts of employment, 154. in length of term of principal, 124 (note 48). in building contracts, consent to, 154. in cause of action or procedure, 169. in application of payments, 246. in number of guarantors, 205, 208. in number of principals terminates guaranty, 168 (note 185), 205. of principal's business does not terminate guaranty, 194 (note 318). of parties, liability of surety on appeal bond, 380 (note 26). in number of creditors or obligees, 205. in firm, effect on special guaranty addressed to, 259. in name of bank, effect on special guaranty addressed to, 258 (note 676). in form of security by creditor, surety not released, 230. in statutes, liability of surety, 123. in law discharges bail, 398. of venue, liability of bail, 396. grant of order for, bail not discharged, 396 (note 63). CHARTER, expiration of, liability of surety thereafter, 186 (note 288). CHECK, see "Negotiable Instrument." CIVIL BAIL, 389. CLERK, see "Officer," "Deputy," "Principal," "Bond." COGNIZORS, 389. see "Recognizance." CO-GUARANTORS, see, also, "Guarantors" ; "Co-Sureties." definition, 5. contribution, 325 (note 28). subrogation, 282 (note 817). INDEX. 497 [The figures refer to pages.] COLLATERAL SECURITY, see, also, "Security." taking, is consideration for an extension of time, 182. taking, is not an extension of time, 178. taking, may make time of forbearance definite, 56. surety liable, though not taken as statute requires, 64 (note 188), 74 (note 229). failure of creditor to take is not fraud, 66 (note 193). creditor not obliged to pay taxes on, 230. COLLECTION, see "Guaranty." COMMENCEMENT, see "Beginning." COMMERCIAL GUARANTY, see "Guaranty." COMMISSIONS, see "Compensation." COMMON COUNTS, see, also, "Pleading." guaranty cannot be given in evidence under, 9, COMMON LAW BOND, see "Voluntary Bond." COMMONWEALTH, see "Obligee" ; "Official Bond" ; "Act of Law" ; "Jurisdiction" ; "Statute." COMPENSATION, of principal, change in, discharges surety, 166, 167. surety entitled to credit for, in mitigation of damages, 273. COMPETENCY, see, also, "Capacity" ; "Incapacity." of parties to contract of suretyship, 24. COMPLAINANT, see "Pleading." COMPOSITION, see, also, "Bankruptcy" ; "Illegality." with creditors, fraud as to, 65 (note 189). CONCEALMENT. see, also, "Fraud." of default, by principal, prevents running of statute of limita- tions as to surety, 240. CONDITION, see, also "Performance." no presumption as to, 39. Childs' Stjbetyship— 32 498 INDEX. [The figures refer to pages.] CONDITION— Cont'd, notice of, 36, 222. if known to obligee, assent presumed, 41. annexed by some only of co-sureties, 40. annexed by statute, 39 (note 66), 133, 142. implied, 133, 143. in guaranty of collection, 21, 222. in indorsement, 356, note, purchaser of negotiable instrument without notice of, 41, 42 (note 76). when strict compliance with is impossible, construction of, 120. as to signature, 36, 37, 39 (note 67). as to filling blanks, 41. as to insurance, 218 (note 442). as to notice of irregularities of principal, 120. that suit must be brought within a specified time, 242. what is, 40, 41, 184, 251, 253. waiver of, 221. by indorser, 310. by obligee, when not alteration, 165. of official bonds, 413. of appeal bonds, 380. of replevin bond, 386. omission of, from bond, 46. CONDITIONAL GUARANTY, see "Guaranty." CONDITIONAL INDORSEMENT, see "Indorsement." CONFEDERATE MONEY, see "Currency"; "Payment." CONFLICT OF LAWS, validity of contract, 80. construction of contract, 131. statute of frauds, 112. CONSENT, see, also, "Waiver" ; "Estoppel" ; "Ratification." surety remains liable by, 153. what constitutes, 154. implied, 155. to an extension of time does not authorize an alteration, 155 (note 108). by surety, to alteration, 157. to changes in principal's employment, 154. to an extension of time to principal, 171. to relinquishment of security by creditor, 278. to changes in building contract, 154. INDEX. 499 [The figures refer to pages.] CONSENT— Cont'd. to release of co-surety, 347. to change application of payment, 246. of principal, implied by reservation of rights by creditor against surety, 251. of beneficiaries under bond, necessary to cancellation after de- fault of principal, 250. of creditor or obligee, to subrogation by surety before payment, 279. by one co-surety, will not affect others, 155. of co-surety to contribution, 253. CONSEQUENTIAL DAMAGES, see "Damages." CONSIDERATION, definition, 49. necessity for, 24, 48. not waived by writing, 54. when presumed, 48, 49 (note 108), 54. sufficiency, 58. commissions, 57. disadvantage to promisee, 50, 51. release, 57. from oral contract of suretyship, 88. surrender of note, 57. relinquishment of lien, 57. of right to rescind sale, 57. withdrawal of suit, 56. agreement not to increase costs or expenses, 56 (note 140). extension of time, 57. when forbearance is, 53, 55, 56. past, 51, 53, 58 (note 150). for contract after delivery, 52. moral obligation is not, 58. none for bonds improperly given, 58. payment of overdue debt is not, 180 (note 254), 182. for continuing guaranty, 194. for advancements, 54, 55. for past and future acts, 55. for extension of time, necessity of, 171, 179. sufficiency of, 179-182. for release, necessity of, 252 (note 643). part payment is not, 248 (note 626). from contribution, payment, is, 347 (note 155). for principal's implied promise of indemnity to surety, 293. adequacy of, 48, 55. value of, 55. illegality, 48, 59. 500 INDEX. [The figures refer to pages.] CONSIDERATION— Cont'd. whether memorandum required by statute of frauds, must show, 108. does not take promise out of statute of frauds, S3, 86. as affecting construction of contract, 116. receipt of by surety, does not waive defense, 157. want of, 49 (note 109), 55 (note 128), 357. as to part of the contract, 52 (note 115), 58. failure of, 242, 254. against purchaser for value of a negotiable instrument, without notice, want or failure of, cannot be shown, 48, 54, 254. return of, by infant principal, discharges surety, 236. adding exact, is not a material alteration, 170 (note 202). implied promise of indorser to refund, 358. CONSTABLE, see, also, "Officer"; "Official Bonds"; "Principal." liability of sureties, 218 (note 444). CONSTITUTION, see, also, "Statute." contract of suretyship construed with reference thereto, 189. CONSTRUCTION, see, also, "Intention." is a question of law, 115, 126 (note 54). of contract, rules for, 114. to be reasonable, 114, 116. against party using language, 114, 115, 121. ambiguities can be cleared by oral evidence, 116. express terms prevail over implied ones, 114, 122. given by the parties, to be adopted, 114, 121. meaning to be given words, 114, 117. surety favored in, 114, 124, 186. to effectuate intention of parties, 114, 117, 189, 190. valid rather than invalid meaning to be given, 114, 120. with reference to constitution, statutes, and by-laws, 114, 122, 189, 190. governed by usage, 117. court will not alter, nor supply omitted terms, 120, 125. when conditions in, are impossible of strict performance, 120. as affected by receipt, by surety, of consideration, 116. of corporate surety, 116. as affected by conflict of laws, 131. of guaranty, 125-129, 131. meaning of "holden," "good," "safe," 126. of express agreement of surety to waive indemnity from prin- cipal, 294. INDEX. 501 [The figures refer to pages.] CONSTRUCTION— Cont'd, of statute of frauds, 87. of statute allowing surety to compel suit by creditor, 196. CONSTRUCTIVE NOTICE, see, also, "Notice." of conditions, 36, 37, 38, 40. CONSTRUCTIVE SURRENDER, see "Surrender" ; "Bail." CONTINGENCY, see, also, "Condition." when subrogation subject to, 290. CONTINUANCE, see, also, "Delay." of suit against principal will not discharge surety, 142. when bail remain liable after, 394. CONTINUING GUARANTY, see, "Guaranty." CONTRACT, see "Suretyship"; "Guaranty"; "Bond"; "Negotiable Instru- ment"; "Building Contract"; "Essentials"; "Construction".; "Alteration." CONTRACTOR, see "Building Contract" ; "Bond" ; "Principal." CONTRIBUTION, persons entitled, 17 (note 59), 253, 325, 326, 350. persons liable, 6, 334, 350. may be enforced at law or in chancery, 327. origin of right to, 326. agreement for, implied by law, 325, 327. right to, not affected by holding security, 327. conventional, 327, 343. waiver, 327, 342. oral agreement as to, may be shown, 91, 327, 344. surety must pay creditor before enforcing right to, 328, 331, 334, 340, 341. no right to, until after maturity of the debt, 329. action for, 336-338. enforcement of right of, by subrogation, 282. and indemnity from principal, cannot be sought in same suit at la-w, 337 (note 94). consideration for a release from, 347 (note 155). effect of relinquishment or loss of security, 344. statute of limitations, 348. ' claim for, can be set off against claim of plaintiff, 349. when judgment against co-surety is evidence, 342. 502 INDEX. [The figures refer to pages.] CONTRIBUTION— Cont'd. amount recoverable in, 331, 335, 336, 339. apportionment of liability, 333, 334. liability of co-surety for, not increased by holding security, 328 (note 40), 333 (note 75). after part payment by principal, 335. for interest, 331, 332. for expenses, costs, and attorney's fees, 331-333. for satisfaction of judgment, 332. towards payment of mortgage, 334. after making, surety can recover from principal, 303, 315. defenses, incapacity, 340. when illegality is not, 342. wrongful act of plaintiff, 340, 344, 346. moral wrong by plaintiff, is not, 346. plaintiff's promise to indemnify defendant, 340, 343. nonpayment by plaintiff, 340, 341. payment with principal's funds, 340, 341. that plaintiff purchased property of the principal at a nom- inal price, 341 (note 114). none, that plaintiff's payment was involuntary, 341. none, that plaintiff is indebted to the principal, 341. none, that principal has reimbursed plaintiff for his pro- portionate share, 335. voluntary payment, 340, 342. See, also, "Payment." cannot be set up if unknown to plaintiff, 342. payment by defendant, 340, 343. relinquishment or loss of security, or remedy, 340, 344. release, 340, 345, 347. bankruptcy, 340, 347. statute of limitations, 340, 348. death or subsequent insanity is not, 349^ CONUSORS, 389. see "Recognizance." CONVENTIONAL SUBROGATION, see "Subrogation." CONVEYANCE, see, also, "Grantor and Grantee"; "Assumption"; "Fraudu- lent Conveyance." by principal to surety, is valid, 295. CORONER, see "Officer" ; "Official Bond" ; "Principal." CORPORATE SURETY, see "Corporation." sufficient without others, 64 (note 188). INDEX. 503 tThe figures refer to pages.] CORPORATE SURETY— Cont'd, construction of contract of, 116. not favorites of the law, 124 (note 49). is an insurer, 12 (note 46). express provision by, limiting time for bringing suit against, 242. CORPORATION, see, also, "By-Laws" ; "Ultra Vires" ; "Corporate Surety." when may be a surety, 61. ultra vires acts of, 59, 61, 62 (note 172). can enforce bond given to president and directors, 257 (note 667). If obligees in a bond become, liability of sureties terminates, 257. surety for, estopped to deny legal existence of, 261, 264. cannot set up ultra vires act of, 235, 237. whether discharged by an extension of charter, 186 (note 288). stockholder is, 17 (note 59). when principal, in guaranty of collection, creditor need not ex- haust liability of stockholders, 222 (note 471). stockholders as sureties for, by express contract, liable as in- dividuals, 333 (note 76). subrogation to lien of, against stockholders, 285 (note 827). COSTS, see, also, "Expenses"; "Attorney." agreement not to increase, is consideration for contract, 56 (note 140). liability of surety for, 269, 386. liability of guarantor for, 270. when recoverable from principal by surety, 305, 316, 317. when recoverable from principal by bail, 312. contribution for, 333. must be paid by bail before forfeiture will be set aside, 401. CO-SURETIES, see, also, "Surety." Who are, 5, 320-322. relationship may be shown by oral evidence, 323. presumptions as to who are, 321, 324. estoppel to show relation, 324 (note 24). who are not, 322, 323. may limit their liability, 269. may set aside fraudulent conveyances, 327. each liable to creditor or obligee, 135, 269. payment by, 325-330, 341. voluntary payments, 342, 343. bankruptcy of one, no defense against creditor, 238. consent by one cannot affect rights of others, 155. 504 INDEX. [The figures refer to pages.] CO-SURETIES— Cont'd. cannot waive statute of limitations for each other, 342. should acquaint each other with defenses against creditor, 342. one may waive his personal defense, and pay creditor, 343. presumed to pay as individuals, 304 (note 76). when deemed to have paid jointly, 337. contribution by, 325-349. See, also, "Contribution." payment must be made in excess of proportionate share, 334. not required to resort first to principal; 329. whole claim can be proved against bankrupt surety's estate, 347 (note 156). right of, lost by purchase of principal's property for nominal price, 341 (note 114). right to, can be set off against claim, 325 (note 28), 327 (note 35), 349. parties, 336-338. pleading, 339, 340. what is payment from a joint fund, 304. proportionately, 331. one co-surety having security, not liable to contribute more, 333. set-off or recoupment, 340, 349. presumed to know the law, 342. release of, by release of one, 252, 253 (note 644), 346. not result from death or insolvency of one, 193. not the result of statutory notice, by one, to sue, 195 (note 321), 197, 347. consent to, 153 (note 95). request by one to become, implied promise to indemnify, 343 (note 128). cannot speculate on each other, 331. exoneration of, before payment, 329. after contribution, can have indemnity from principal, 309. parties to suit against principal for indemnity, 303, 304. payment by principal to one, no defense by principal against another, 312. one, receiving security from principal, is trustee for others, 351. relinquishment of security, 344, 345. must account for proceeds of security, 328, 341. not entitled to benefit of security from stranger, 350, 352. not entitled to security for another debt, 345. when security must be apportioned among debts, 352. receiving security after rights adjusted, 352. right of subrogation, 280, 350, 351. against, 282, 291. INDEX. 505 [The figures reler to pages.] COUNTERCLAIM, against creditor, of surety's claim, 296. of principal's claim, 272. deposit in bank, 228 (note 498). of co-surety's claim, 273 (note 756). of surety, can be recovered from principal, 315. against co-surety, of claim for contribution, 325 (note 28), 327 (note 35), 349. in suit for contribution, 340, 349. COURT, see, also, "Bail." no right to make alteration, 120, 125. application of payment by, 247. right to cancel bond, 250. surety on bond taken in, estopped to deny jurisdiction of, 261, 264. COVENANT, not to sue is not a release, 248 (note 626). as defense to contribution, 347 (note 154). COVERTURE, see, also, "Incapacity" ; "Married Women" ; "Wife." of surety, 59, 60. of principal, 235, 236. CONVICTION, of principal, after forfeiture, will not discharge bail, 400 CREDIT, request for, is not a guaranty, 126. giving, to principal, indicates collateral liability of surety, 105. CREDITOR, see, also, "Notice" ; "Obligee" ; "Security." definition, 3. cannot be agent for surety, 78, 110. may become principal, 81 (note 264). may be principal through his agent, 297 (note 36). must respect rights of surety, 81, 148. by giving credit to principal, shows collateral liability of surety, 105. by suing principal, indicates collateral liability of surety, 106 (note 82). not bound by conditions if without notice, 37, 38 (note 63). has constructive notice from face of instrument, 40. notice to agent of, sufficient, 40. release by, of one co-surety, 252. reservations of rights by, against surety, 171, 183, 251, 252. form of guaranty to protect, 414. can sue person assuming debt, 16 (note 54), 82 (note 266). 506 INDEX. [The figures refer to pages.] CREDITOR— Cont'd. can hold principal though surety released, 253. death of, terminates contract, 205. change in number of, 205. knowledge of change in number of guarantors, terminates con- tract, 205, 208. rights of, against surety, not affected by rights of third persons, 136. must act promptly on discovering fraud by principal, 176 (note 230), 178. not affected by an alteration, if innocent, 158. if ignorant of the relation, may alter contract with consent of principal, 157, 158. when may apply payment made to, 245, 246. rights of, not affected by delay, 133, 140, 147. notice to guarantor of amount advanced and principal's default, 133, 144. not required to proceed against principal, 133, 134, 229. not required to present claim against deceased principal's estate, 135 (note 4), 141 (note 33), 142 (note 33), 239. not required to exhaust security before resorting to surety, 133, 136. can hold surety as principal, 133. can levy on surety's property first, 147. can proceed against supplemental surety first, 134 (note 4), 251. not required to give surety notice of principal's default, 133. not required to make demand of surety, 133. burden on, to allege and prove breach, 273, 274. fraud by, on surety, 64. on principal, 218, 254, 255. , through agent, 67. duress by, 71. illegality of contract with, 254, 255. preventing performance by principal, cannot hold surety, 210, 217. marrying principal, cannot hold surety, 233. acquiring property of principal subject to his lien, discharges surety, 234. lawful act of, does not discharge surety, 219. must perform condition, 143, 210, 221, 222. must use diligence to hold guarantor of collection, 210, 222. need not exhaust stockholders of corporate principal to hold guar- antor of collection, 222 (note 471). burden of proof on, to show diligence against principal, in guar- anty of collection, 222. what will excuse diligence by, against principal, in guaranty of collection, 223. INDEX. 507 [The figures refer to pages.] CREDITOR— Cont'd. by collecting insurance money, does not discharge a surety or guarantor, 234, 244 (note 599). refusal of tender by, will discharge surety, 242, 248. release by, obtained by misrepresentation, discharges surety, 249. notice to, by surety, to proceed against principal, 192-198. promise by, to look to principal alone, discharges surety, 265. entrusting note to principal, when surety discharged, 218. telling surety debt has been paid, effect, 265, 266. counterclaims of principal against, set-off, 272. recovery of attorney fees by, 270. when surety can be held by, before damage to, 216. not obliged to refund money paid by surety with full knowledge of facts, 256. not obliged to refund money to surety on reversal of judgment against principal, 234 (note 535), 243 (note 589). not obliged to pay taxes on mortgaged land, 230. subrogation, see "Subrogation." CRIME, bail bond must recite, 390. CRIMINAL BAIL, 389. see, also, "Bail." CURRENCY, see, also, "Money." depreciated, how far payment, 315. value of, 315, 331. giving bank notes is payment, 330 (note 61). CUSTODY, see, also, "Bail." of principal is committed to bail, 391. D DAMAGES, measure of, against surety, 266, 267. no liability for indirect or speculative, 384, 385. mitigation of, 273, 387. liquidated, 215, 267, 271. on attachment bond, 381, 383. on injunction bond, 384. on replevin bond, for wrongful seizure, 385-387. assessment of, against sureties on bond, 267. when surety liable for, though creditor without, 216. measure of, between surety and principal, 305, 314, 315, 317. indirect, not recoverable, 317. includes counterclaim of surety against creditor, 315. 508 INDEX. [The figures refer to pages.] DAMAGES— Cont'd. when judgment against surety fixes, 315. agreement that amount paid by surety shall fix, is against public policy, 315. bond to pay, is not broken if, by payment, none results, 343. DATE, not necessary to a. bond, 45. principal may insert, 41 (note 75). of contract, may determine when it takes effect, 220. alteration of, 161. consent to an extension of time does not authorize a change of, 155 (note 108). DAT, see, also, "Bail"; "Time." extension tor, will discharge surety, 183. DEATH, see, also, "Estate." of parties, 205, 209. of obligee, 257. of principal, in appeal bond, 380 (note 23). in bail bond, 299, 397, 398 (note 68). of guarantor, 194. of surety, estate liable, 207, 304 (note 77). of co-surety, does not release survivor, 193. contribution, 338, 339, 349, 350. DEBT, imprisonment for, see "Imprisonment." DEBTOR, see "Principal" ; "Joint." DECLARATION, see "Pleading." of war, see "Alien Enemy." DECEIT, see "Fraud." DEED, see "Bond" ; "Grantor and Grantee" ; "Conveyance." DE FACTO OFFICER, see "Officer." DEFALCATION, see "Default." DEFAULT, see, also, "Performance." of principal, makes guarantor liable, 7. when guarantor of payment is in, 215. INDEX. 509 [The figures refer to pages.] DEFAULT— Cont'd. by principal, when obligee's concealment of, is fraud, 66. negligence in discovering, 69 (note 203). prior to delivery of contract, 210, 219. acts constituting, 123, 124, 201, 204, 209, 211, 212, 214, 221, 374. while acting as agent, 211. outside locality, 213. conversion after term, 215. through errors in judgment, 216, 370. under special bond, surety on general bond not liable for, 192, 199. through acts of subordinates, 74 (note 232), 212 (note 405), 373. occasioned by creditor or obligee, 210, 217. occasioned by co-surety, not entitled to contribution, 34t>. surety liable without notice of, 133, 202. unless express stipulation for, 120. notice of, to guarantor, 133, 144, 146. known to obligee, terminates liability of surety as to the future, 192, 202. no defense to surety that it might have been discovered by an examination, 203. knowledge of, by agent of obligee, 204. surety on bond in force at time of, is liable, 192. presumed to have occurred while last bond in force, 192, 200. to make good prior default, 220. what set of sureties liable for, 200, 201. bail liable for penalty, 400. as to recognizance, 389. of public officer, 270, 370-373. of judicial officer, 370-372. by personal representatives, 376, 377. when liability without damage, is, 216. bond against, is not broken if payment prevents, 343. evidence of, 273, 274. surety not liable for such as occur after his discharge in bank- ruptcy, 238. when statute of limitations begins running as to, 240 (note 571). DEFEASANCE, 413. DEFECTS, when bond invalidated by, 381, 382. DEFENSES, see "Act of Creditor or Obligee"; "Alteration"; "Bail"; "Bank- ruptcy"; "Change"; "Condition"; "Consideration"; "Contribu- tion"; "Default"; "Delay"; "Duress"; "Extension of Time' ," . 510 INDEX. [The figures refer to pages.] DEFENSES— Cont'd. "Fraud" ; "Guarantor" ; "Guaranty" ; "Illegality" ; "Incapac- ity" ; "Indemnity"; "Lease"; "Limitation"; "Notice"; "Pay- ment" ; "Performance" ; "Release" ; "Rent" ; "Security" ; "Statute of Frauds"; "Statute of Limitations"; "Surety"; "Surrender" ; "Tender" ; "Usury" ; "Waiver." DEFINITION, see the word whose definition is desired. DELAY, see, also, "Statute of Limitations"; "Waiver"; "Estoppel"; "Consent." surety not discharged by, 133, 140, 147, 202, 229. may cause loss of right of subrogation, 288. in delivery of goods, no defense to guarantor, 215 (note 426). DEL CREDERE AGENT, definition, 91. is an insurer, 92. contract of, not within the statute of frauds, 91. DELINQUENCY, see "Default." DELIVERY, necessity of, 34. what constitutes, 35. by principal as agent of surety, 78 (note 245). by stranger is constructive notice of conditions, 36, 38. by one obligor is sufficient, 39 (note 66). to one obligee is sufficient, 35. surety's liability begins from, 45, 210, 219. liability of sureties signing after, 51, 52, 220 (note 456). of memorandum required by statute of frauds unnecessary, 111. delay in, of goods is no defense to guarantor, 215 (note 426). liability of one becoming an irregular indorser after, 362. under forthcoming bond may be waived, 382 (note 38). DEMAND, see "Notice." surety not entitled to, 133. surety can pay without, 298, 328. principal not entitled to, from surety, 303. co-surety not required to make, 329. bringing suit is, 268. necessary to hold an indorser, 356 (note). unnecessary on an irregular indorser regarded as a joint maker, 361. DEPART, see "Bail." INDEX. 511 [The figures refer to pages.] DEPOSIT, see "Bail" ; "Bank." DEPRECIATION, see "Loss." DEPUTY, an assistant, clerk, or employe is not, 373. liability of surety for acts of, 74 (note 232), 373. sureties for, when liable to sureties of officer, 257. DESTRUCTION, see, also, "Loss." of property as a defense to surety, 232, 234. DEVASTAVIT, see, also, "Administrator." what is, 377 (note 5). kinds of, 377 (note 5.) DILIGENCE, see, also, "Negligence." required of creditor in guaranty of collection, 222, 223. DIRECTORS, see, also, "Corporation." when suit can be brought by, after expiration of term, 257. DISABILITY, see "Incapacity." DISAFFIRMANCE, see, also, "Infancy." of contract by infant principal, and return of consideration, dis- charges surety, 236. DISBURSEMENTS, by principal, surety entitled to credit for, 273. DISCHARGE, see "Bail"; "Surety"; "Guarantor." DISCRETION, see "Court" ; "Judgment." DISSOLUTION, see "Partners." DISTINCTIONS, between surety and guarantor, 7. between surety and indorser, 10. between surety and insurer, 12. between guarantor and indorser, 11. between guaranty and warranty, 13. between bail and recognizance, 388. between criminal and civil bail, 389. 512 INDEX. [The figures refer to pages.] DISTRIBUTEES, sureties for personal representative are liable to, 376. suit by, on bond of personal representative, 378. contribution by, 334 (note 79), 350. DIVERSION, see, "Alteration"; "Negotiable Instrument." DIVIDENDS, see, also, "Bankruptcy"; "Application." subrogation to, 284. DIVISIBLE CONTRACT, as to consideration, 52 (note 115). as to the statute of frauds, 83, 86, 105 (note 79). liability of surety, 216. DRAFT, see "Negotiable Instrument"; "Enlistment." DRAWER, see, also, "Negotiable Instrument." a surety, 3, 354, 358. when principal, 354, 358. contract of, before acceptance, 358. presumed to be creditor of the drawee, 358. liability, after acceptance, 358. liability of an irregular, of instrument payable to, 359 may be an accommodation party, 364. if accommodated party, is liable to the acceptor, 366 (note 45). DRUNKENNESS, see, also, "Insanity" ; "Incapacity." of surety, 59, 60. DURATION, of liability of surety or guarantor, see "Annual Office" ; "Guar- antor" ; "Guaranty" ; "Surety." DURESS, of surety, 71, 72. of principal, 74 (note 231), 254. DUTIES, see, also, "Default"; "Officer"; "Performance." surety not liable for those not within scope of bond, 211. as to funds, see "Funds." discharge of surety by changes in, 160, 166, 167. surety liable for principal's performance, 212, 370. E ELECTION, see, also, "Annual Office." of principal, surety estopped to deny, 261, 262. surety liable for term of principal only, 119. INDEX. 513 [The figures refer to pages.] EMBEZZLEMENT, see "Default." EMPLOYE, see "Principal" ; "Official Bond." ENEMY, see "Alien Enemy" ; "Public Enemy." ENLISTMENT, of principal, when discharges bail, 397, 399. ENTRIES, see, also, "Evidence." by principal, when evidence against surety, 274, 275. EQUITY, see, also, "Subrogation." will reform contract, 114, 116. may compel creditor to resort first to principal, 133, 137. surety may set off principal's claim against creditor in, 273 (note 755). exoneration of co-sureties in, 329. See, also, "Exoneration." will restrain fraudulent conveyance by co-surety, 330. contribution, 326, 336-339. See, also, "Contribution." ERASURE, see "Alteration." ERROR, see, also, "Mistake." of judgment, by principal, liability of surety for, 216. sureties for personal representative, liable for losses through, 377. clerical, will not discharge bail, 390. discharge of principal through, will discharge bail, 394. ESCAPE, see "Bail." ESSENTIALS, of contract of suretyship, 24, 45, 86. ESTATE, see, also, "Death"; "Bankruptcy." of deceased principal, creditor not required to present claim to, 239. surety can recover from, though claim of creditor barred as to, 309 (note 111). ESTOPPEL, see, also, "Waiver"; "Consent." jf surety, to deny recitals, 261, 262. to deny capacity assumed, 123, 154, 261, 264. to deny consideration of sealed instrument, 49, 50. Childs' Stjbetyship — 33 514 INDEX. [The figures refer to pages.] ESTOPPEL— Cont'd. to deny validity of contract secured, 260, 261. to question filling of blanks by principal, 42 (note 75). to claim nonresidence as a defense, 64. to show that office was abolished before principal's election thereto, 263. to deny jurisdiction of court, 261, 264. to deny legal existence of obligee, 261, 264. to deny liability because he did not read the instrument, 70 (note 212). 'to set up an alteration if he has been negligent, 160. none, from opposing assignment by principal, 289. none, from participating in bankruptcy proceedings against principal, 238. none, to set up fraud, 65 (note 189). none, by corporation, to set up ultra vires, 62 (note 172). of principal, to question validity of obligation against surety, 311. of co-surety, to show relationship, 324 (note 24). EVIDENCE, see, also, "Question"; "Statute of Frauds"; "Burden of Proof" ; "Admissions." oral, admissible to show relation, 148, 151, 297, 323, 324. of collateral liability of surety, 105, 106 (note 82). oral, of contract of suretyship, 112. to alter or contradict a written instrument, 114, 116, 148, 262. to show mistake as to address of special guaranty, 258. to explain memorandum required by statute of frauds, 107, 109. to explain ambiguities, 116 to aid construction, by showing usage, 117. against purchaser of negotiable instrument, for value with- out notice, 148, 153. to show that no liability was intended, 152. as to contribution, 327, 344. of principal's insolvency, when required in suit for contribution, 338. judgment against co-surety, admissibility as, 342. of forbearance, 56. of consent, by implication, 155. of notice to guarantor, 146. of extension of time, when taking interest is, 178, 180. of giving statutory notice to creditor, 196. of diligence in proceeding against principal, 223. judgment against or in favor of principal, against or in favor of surety, 93 (note 39), 233, 275, 306, 378, 386. amount stated in bond is, of value of property replevied, 386 (note 64). INDEX. 515 [The figures refer to pages.] EVIDENCE— Cont'd. judgment against obligee is, of breach of bond to hold harmless, 276. when judgment against surety is, against principal, 306, 315. judgment by surety against principal without notice in another state, is not, 306 (note 87). of payment, possession of note is, 298 (note 45). amount paid by surety to creditor is not conclusive against prin- cipal, 315. to vary implied contract of regular indorser, 122, 357. to show time of making indorsement, 362. to show contract of irregular indorser, 359, 364. EXCHANGE, see "Security"; "Negotiable Instrument." EXCUSE, see "Guarantor" ; "Official Bond" ; "Surety." EXECUTION, see, also, "Signature." of contract by principal, necessity of, 43. signing on condition, 36. See, also, "Condition." creditor may levy on surety's property, 147. surety may pay before issuance of, 328 (note 45). surety not discharged by stay of, 179 (note 248). release of levy on principal's property, 225. creditor not obliged to levy, against principal, 229. may be required by statute, 137. by justice of the peace against principal is insufficient to show his insolvency, 223 (note 475). property taken under, is payment, 341. sale of surety's property, indemnity from principal, 300. if bought by principal, title remains in surety, 294. purchase of principal's property by co-surety at nominal price at sale under, no contribution, 341 (note 114). improper levy of, by sheriff, renders his sureties liable, 369. failure of judicial officer to issae renders his sureties liable, 371. EXECUTOR, see "Personal Representative" ; "Administrator." EXECUTORY AGREEMENT, between creditor and principal will not discharge surety, 233 (note 530). EXEMPTIONS, principal's right to, what law governs, 296. EXONERATION, in equity, 133, 137, 138. by co-sureties, 329. 516 INDEX. [The figures refer to pages.] EXONERBTUR, what is, 401. EXPENSES, agreement not to increase is consideration for a contract, 65 (note 140). surety's liability for, 266, 269, 270 383, 384. of administration, surety not liable for, 377. principal's liability to surety for, 314, 316. contribution for, 331, 332. by co-surety in obtaining security from principal, reimbursement for, 351. EXPIRATION, see "Renewal"; "Annual Office." EXTENSION, see, also, "Extension of Time." of corporate charter, liability of surety for corporation there- after, 186 (note 288). EXTENSION OF TIME, by creditor to principal, discharges surety, 147 (note 71), 170-174, 390 (note 7). discharges guarantor, 172 (note 204). discharges indorser, 172 (note 204) to one assuming debt, 16, 171 (note 204), 172 (note 204). discharges pledgor, 172 (note 204) by one co-obligee, discharges surely, 173. by law, discharges surety, 160, 174, 190. by arbitrators, discharges surety, 174. as to part of the debt, 175. necessity of binding agreement for, 175-177. burden on surety to show, 176 (note 224). implied agreement for, 177. question of fact whether made, 176. procured by fraud or forgery 176, 178, 243 (note 592). when taking interest is evidence of, 178, 180. taking collateral security maturing after principal debt, is not, 178. when continuance of suit will discharge, 142, 174. stay of execution is not, 179 (note 248). naming date by which principal must pay, is not, 176 (note 225). if involuntary, surety not discharged, 177. of sealed instrument, by oral agreement, 177 (note 231). condition annexed to, 176. consideration for, 171, 179-182. definite time, 171, 182, 183. for less than period required to obtain judgment, 174 (note 213). if relation unknown, will not discharge surety, 149 (note 72), 170. INDEX. 517 [The figures refer to pages.] EXTENSION OF TIME— Cont'd. with surety's consent, 153 (note 95), 154, 155, 171. discharge of surety by, may be waived, 185. request for, by surety, is waiver of previous discharge, 154 (note 97). purchaser for value of a negotiable instrument, without notice of, can hold surety, 185. reservation of rights, by creditor, will prevent discharge of sure- ty by agreement for, 171, 183. if surety fully indemnified, no discharge by agreement for, 171, 184. agreement for, by co-surety, takes away right to contribution, 345. is consideration for a contract, 57. EXTINGUISHMENT, see "Payment" ; "Performance." EXTORTION, see "Duress." EXTRADITION, of principal, discharges bail, 219, 399. F FACTS, see, also, "Question." constituting defense, payment by surety in Ignorance of, is not voluntary, 308. FACULTATIVE INDORSEMENT, see "Indorsement." FAILURE, see "Performance." of consideration, see "Consideration. of surety to read contract, see "Fraud." FALSE STATEMENTS, see "Fraud." FALSIFICATION, see, also, "Default." accounts by principal, surety liable for, 221. FEES, see "Attorney." FIDELITY INSURANCE, see, also, "Corporate Surety." definition, 12. FILING, ofllcial bond, 36. 518 INDEX. [The figures refer to pages.] FILLING, see "Blanks." FINE, liability of bail for, not discharged by a surrender of the prin- cipal, 393 FIRE, see, also, "Destruction" ; "Loss" ; "Negligence" ; "Property" ; "Bailment" ; "Performance" ; "Condition." when surety liable for loss of funds by, 374. FIRM, see "Partners." FORBEARANCE, see, also, "Delay"; "Extension of Time." when consideration for a contract, 53, 55, 56. evidence of, 56. what is, for a definite time, 56. to principal, will not discharge surety, 176 (note 224). FORFEITURE, of bail bond, see "Bail." of corporate charter, liability thereafter of surety for corpora- tion, 186 (note 288). of office, if public officer fails to file bond, 386. FORGERY, see, also, "Fraud." of co-surety's signature, is no defense, 76. of signatures to a renewal note, effect, 177, 243 (note 592). delay, by surety, after discovery of, 78 (note 249). FORECLOSURE, see "Mortgage." FORM, change in, of security held by creditor, 230. of notice of acceptance of offer, 32, 33. of notice by creditor, 134, 146. of official bond, 403, 407. of continuing guaranty, 414. of guaranty of collection, 415. FORMALITY, of contract of suretyship, 24, 44 FORMATION, of contract of suretyship, essentials, 24, 45. of contract of guaranty is complete when accepted, 80 (note 256). FORTHCOMING BOND, see, also, "Attachment" ; "Bond" ; "Judicial Bonds." nature and conditions, 382. INDEX. 519 [The figures refer to pages.] F0RTH60MING BOND— Cont'd, discharge of sureties, 382. delivery of property under, may be waived, 382 (note 38). FRAUD, see, also, "Forgery"; "Statute of Frauds." on surety, not bound, 64. not estopped to show, 260. creditor must be connected with, to affect him, 70, 220. by third person, will not release surety, 70. by agent of obligee or creditor, 67. what constitutes, 65. concealment, 65, 66, 69, 70. statements and representations, 67-69. when ignorance is, 69. surety's failure to read contract, is not, 70. failure of creditor to take other security, when not, 66 (note 193). can be shown by a regular indorser, 357. on principal as a defense to surety, 254, 255. by obligee, preventing performance, discharges surety, 218. by principal on creditor, 176 (note 230), 178. release of surety obtained by, insufficient to discharge, 250. extension of time procured by fraud, 176. surety discharged when induced to believe note paid, 218. running of statute of limitations suspended by, 240. constructive, for one co-surety to take principal's property, 344, 351. waiver of defense of, 71. when ground for reformation of contract, 117. FRAUDULENT CONVEYANCE, by principal, right of surety to set aside, 295. subrogation, to creditor's right, 284. mortgagor of property conveyed by, is a principal, 18 (note 65). by one co-surety, 327. suit to restrain, 330. FUNDS, see, also, "Money." liability of sureties for loss of, 374. reported on hand by principal, 201, 215. on hand at end of principal's term, 215. surety liable for after death of principal, 206. used by principal to make good his prior default, ,201, 220. surety liable for, though increased, 214. received by principal outside scope of office, 123, 124, 211, 214. covered by a special bond, surety on general bond not liable for, 200. interest on, sureties for public officer liable for, 270. 520 INDEX. [The figures refer to pages.] FUNDS— Cont'd. of estate of deceased person, 376. liability of sureties of personal representative for, 377. liability of sureties for guardian for, 378. failure of principal to remit promptly, is not a default, 204. misapplied by principal, surety's right of subrogation to, 284. agreement between principal a surety for illegal loan of, surety no right of indemnity from principal, 311. of principal, co-surety must account for, 341. of principal used by co-surety to make payment, no contribution, 340, 341. joint, what are, 337. G GAMBLING, see, also, "Illegality" ; "Notice." obligee is not bound to disclose that principal Indulges in, 70. GENERAL GUARANTY, see "Guaranty." GOD, see "Act of God." GOLD, alteration as to provision for payment in, discharges surety, 164. GOOD, meaning of, 126, 127 (note 65). faith, see "Fraud." GRANTOR AND GRANTEE, see, also, "Conveyance" ; "Mortgage"; "Assumption"; "Buyer." when grantor becomes a surety, 4, 15, 82. when grantee becomes a surety, 6 (note 20), 16, 19. grantee, assuming mortgage on land, can be sued by the mort- gagee, 16 (note 54). extension of time of payment to, discharges grantor, 171 (note 204). remains liable to mortgagee after release of grantor, 253. GUARANTOR, see, also, "Surety"; "Guaranty." definition, 2. distinguished from surety, 7. distinguished from indorser, 11. when bank or other corporation may be, 62. when irregular indorser presumed to be, 358, 359, 360 (note 24), 361, 362 (note 31), 363 (note 31). a surety, 3. INDEX. 521 tThe figures refer to pages.] GUARANTOR— Cont'd. a supplemental surety, 323. when not a co-surety, 320. not jointly liable -with the principal, 7. does not undertake to perform, 7 (note 25). may annex conditions to his contract, 11, 218 (note 442). duress of, 71. bound, though some signatures are forged, 76 (note 239). of note payable to maker's order, and not indorsed, 44 (note 84). termination of liability,- 186, 187, 192, 194, 205, 208. becomes liable on default of principal, 7. of severable contract, 216. not discharged by creditor's delay, 141 (note 33). may be sued before principal is, 134 (note 4). cannot compel creditor to sue principal, 196 (note 321). not bound, if creditor guilty of fraud, 65 (note 189), 218. of note to be payable in a particular place, 213 (note 411). notice of amount advanced to principal, 133, 144. notice of principal's default, 133, 144-146. discharged by a change in contract of sale, 168. discharged by a change as to term of credit to principal, 169. of lease or rent, 168, 244 (note 599), 250. See, also, "Rent." for payment of money not liable for payment of goods, 168 (note 185). for payment of money not liable for extension of credit to prin- cipal, 215. for payment of goods, not discharged by delay in delivery, 215 (note 426). not discharged by removal of principal's place of business, 161 (note 137). discharged by extension of time, 172 (note 204). See, also, "Ex- tension of Time." for return of property not liable if destroyed, 234. statute of limitations, 240, 241 (note 582). Is liable for Interest, 269 (note 737). is liable for stipulated and liquidated damages, 215, 271. not liable for protest fees, 270. when liable for costs and attorney fees, 270. waiver by, of defense of fraud, 71 (note 218). subrogation to securities held by, 289 (note 856). entitled to subrogation, 280. entitled to indemnity from principal, 293 (note 4), 302. entitled to indemnity from surety in narrow sense, 323 (note 21). of payment of necessaries furnished infant principal, 307. may join with co-guarantors to foreclose mortgage against prin- cipal, 318 (note 164). 522 INDEX. [The figures refer to pages.] GUARANTY, see, also, "Surety"; "Guarantor." definition, 2. what constitutes, 127. distinguished from warranty, 13. classification of, 20. absolute, 20, 21. of collection, definition, 21. form of, 415. what expressions construed to be, 127 (note 65). of installments, 224. implied conditions of, 21, 143, 222-224. commercial, 23. conditional, 21, 143. continuing, 20, 21. form of, 414. consideration for, 194. construction, 121, 128. general, 22. how addressed, 259. construed as such, if so acted upon by the parties, 121. can be acted on by any one, 259. can be enforced by transferee of a negotiable instrument, 260. limited, 21. noncommercial, 23. noncontinuing, construction of, 128. of payment, definition, 21. is an absolute guaranty, 21. and collection, is one of payment, 222. is broken when principal fails to pay, 215. revocable, 20, 23, 192, 194. by dissolution of partnership, 194. by death, 194, 205, 206, 208. by personal representative of guarantor, 208. special, 22. who can enforce, 258. addressee, who may act on, 258, 259. assignment, 258. Is complete when accepted, 80 (note 256). notice of acceptance to one joint guarantor, sufficient, 33. authority of one partner to bind the firm by, 79. consideration for, see "Consideration." presumed made at same time as the principal contract, 108. is made in the state where accepted, 131. See, also, "Acceptance." promise essential to, 125. request or recommendation is not, 126. must be evidenced in writing, 13. See, also, "Statute of Frauds." INDEX. 523 [The figures refer to pages.] GUARANTY— Cont'd. limitation as to amount in, 129. limitation as to time, effect, 131. of lease is valid though not executed by all lessees, 44. construed to make valid, 120. See, also, "Construction." ambiguities in, how cleared, 128. of overdue note, effect, 216. of all notes, covers renewals, 221. of money will not cover goods, 215. for chamber suits will not cover articles of furniture, 215. that principal "will not abscond or squander, is not, of payment, 211 (note 400). . of ratification is not, of payment, 211, 236 (note 348). of rent during occupancy does not cover rent for whole term, 216. of payment of deficiency on foreclosure, is not, of payment of mortgage, 222. retroactive, if intention, 220. may take effect from its date, 220. of note two years, means two years from maturity, 216, 224. not terminated by principal's change of business, 194 (note 318). is broken when principal is in default, 11. of negotiable instrument, who can enforce, 260. must be declared on specially, 9. alteration of. See, "Alteration." change in number of guarantors, known to creditor, terminates, 205, 208. change in number of principals, terminates, 205. advancements of more or less than amount named in, not an alteration, 162. cannot be changed by oral evidence, 116. conflict of laws, 80 (note 256). GUARANTY INSURANCE, see, also, "Corporate Surety." definition, 12. distinguished from suretyship, 12. GUARDIAN, see, also, "Principal." liability of sureties, 378, 379. bond of, sureties estopped to show that it was not ordered, 262. securing two estates, valid, 74 (note 229). H HARMLESS, obligation to hold, effect, 217. agreement to save surety, 299. costs recoverable from principal, 316 (note 154). 524 ^ INDEX. [The figures refer to pages.] HARMLESS— Cont'd. judgment against obligee is evidence of breach of bond to save, 276. bond to hold, makes surety liable for attorney fees of obligee, 270. HEIRS, of surety, making payment, can join in suit against principal for indemnity, 304. of co-surety, when liable to contribution, 350. HOMESTEAD, see "Exemptions." HOTEL BILLS, see "Expense." HUSBAND, see "Coverture" ; "Married Women" ; "Wife." I IDIOCY, see "Insanity" ; "Incapacity." IGNORANCE, see, also, "Knowledge." of obligee, of defaults of the principal, when fraud on surety, 69. ILLEGALITY, conflict of laws, 80. as to consideration, 59. as a defense by surety against creditor, 59, 72, 254, 255. surety not estopped to show, 260. in composition with creditors, 72. Sunday contracts, 73. usury, see "Usury." as to payment by principal to creditor, 244. as a defense by principal against surety, 306, 310, 311. when no defense to contribution, 342. deposit in lieu of bail, 391, 312. IMMATERIAL ALTERATION, see "Alteration." IMPOSSIBILITY, of performance, as a defense, 233 (note 530), 234. IMPRISONMENT, ■ see, also, "Bail"; "Duress." illegal, 255. payment by, 244. release of principal from, effect on liability of surety, 227 (note 492). of surety, when right to indemnity from principal given by, 301. for debt, if abolished, discharges civil bail, 398. INDEX. 525 [The figures refer to pages.] INCAPACITY, see, also, "Capacity." of surety, as a defense, 59. sole liability, is not, 60. insolvency is not, 60. nonresidence is not, 64. noncompliance with statute is not, 74-229. as a defense to contribution, 340. of principal, does not take surety's contract out of the statute of frauds, 95. not a defense by the surety, 235. as a defense against surety, 306, 307. INCOMPLETE INSTRUMENT, see, also, "Blanks." gives constructive notice of conditions by surety, 36, 38. principal is agent of surety to complete, 78 (note 245). INCORPORATION, see "Corporation." INDEBTEDNESS, assumption of, see "Assumption." INDEMNITY, see "Bond," "Damages," "Security." implied promise of, by principal to surety, 292, 293, 366. superseded by express agreement for construction, 292, 294. persons entitled, 299-303, 309, 310. •when surety may sue principal for, before payment, 299. surety can bring suit for, with notice to or demand of principal, 303. action of assumpsit for, 304. action not based on creditor's contract with principal, 293. and contribution cannot be sought in same suit at law, 337 (note 94). parties to suit for, 303, 304. defenses to action for, 306. that principal did not execute contract, 43, 294. infancy, 307. illegality, 310, 311. See, also, "Illegality." performance, 312. See, also, "Performance." payment, 312. See, also, "Payment," contribution from a co-surety, 314. original contract not enforceable, 88, 310. principal released by creditor, 251 bankruptcy and insolvency, 312. See, also, "Bankruptcy." statute of limitations, 313. See, also, "Statute of Limita- tion." amount recoverable by surety from principal, 305, 312, 314. 526 INDEX. [The figures refer to pages.] INDEMNITY— Cont'd. promise of, by one co-surety to another, as defense to contribu- tion, 340, 343. though oral, 89, 90 (note 27), 344. See, also, "Statute of Frauds." when implied from request to become a co-surety, 343 (note 128). extension of time to principal will not discharge surety if he have, 171, 184. See, also, "Extension of Time." release of principal will not discharge surety if he have, 251. See, also, "Release." surety, by taking, waives defense, 154 (note 103). receipt of, by surety, will not revive liability if discharged, 185. co-surety's right to contribution not affected by holding, 335. See, also, "Contribution." against liability before damage, 216. INDICTMENT, see, also, "Bail.' when failure to make, will discharge bail, 395. defective, no defense to bail, 391. when quashing, will discharge bail, 395. for a different offense, as a defense to bail, 396. INDIRECT DAMAGES, see "Damages." INDORSEMENT, see, also, "Indorser." object of, 358. must be made on instrument transferred by, 11. should be placed on back of instrument transferred, 354. time of making may be shown, 362. is a conditional contract, 356 (note), by maker, is not a technical one, 363 (note 35). classification, 355. absolute, definition, 356. in blank, definition, 355. conditional, definition, 356. contingent, definition, 356. facultative, definition, 355. in full, definition, 355. general, definition, 355. irregular, 356. presumed to be made before delivery, 362. qualified, 355. regular, 356. presumption that it is, 356, 363. cannot be varied by oral evidence, 122, 357. INDEX. 527 [The figures refer to pages.] INDORSEMENT— Cont'd. without recourse, definition, 355. how made, 357. restrictive, definition, 355. special, 355. of pretended partial payment, is an alteration, 162 (note). INDORSEE, see, also, "Indorsement.' definition, 354. is a surety, 3, 354, 358. is a supplemental surety, 6, 249 (note 626), 251 (note 637), 323. is a principal as to subsequent parties, 249 (note 627). is not a co-surety, 320, 323. unless shown to be, 324. distinguished from guarantor, 11. distinguished from surety in the narrow sense, 10. contract of, is implied, 122, 357. object of, 11. conditions of, 10, 11, 143. may be waived, 11, 310. is not broken at principal's default, 12. before acceptance of a bill of exchange, 358. who is also the maker, is not entitled to notice, 363 (note 35). irregular, presumption as to, 358, 359. contract of, can be written in full by holder, 362. when express agreement can be shown, 359, 364. cannot show that no liability was intended, 364. liability, 358, 359, 362, 363. without recourse, liability of, 354, 357. accommodation party as, 364. entitled to notice, 365 (note 41). not liable to accommodated payee, 365 (note 43). rights of, not affected by judgment, 146 (note 64). after liability fixed, is not discharged by delay, 142 (note 33). cannot require creditor to sue principal, 196. liable, though prior signatures forged, 77. can show want of consideration and fraud, 357. extension of time to principal will discharge, 172 (note 204). release of, effect, 249 (note 627), 251 (note 637). bankrupt, liability of, 238 (note 559). statute of limitations not revived against, by part payment by principal, 241 (note 582). liability of, to remote parties, 358. entitled to recover indemnity from principal, 293 (note 4), 302, 310. cannot recover costs, 316 (note 152). entitled to subrogation, 280, 282. subrogation to securities held by, 289 (note 856). 528 INDEX. [The figures refer to pages.] INDULGENCE, see "Forbearance" ; "Delay" ; "Extension of Time." INFANCY, see, also, "Incapacity." of surety, as a defense against creditor, 59, 60. may be waived, 310. of principal, not a defense to surety against creditor, 235, 236. as a defense against surety, 307. no excuse, to bail, for departure from state, 393. guaranty that principal will not set up defense of, is not guar- anty of payment, 211. INFORMATION, see "Knowledge" ; "Notice" ; "Indictment." INJUNCTION BOND, see, also, "Bond"; "Judicial Bonds." when required, 384. given after issuance of injunction, 52 (note 115). liability of sureties on, 383-385. recovery on, cannot be had toy one not bound by injunction, 257 (note 667). when sureties on, are liable to other sureties, 251 (note 638). INSANITY, see, also, "Incapacity"; "Drunkenness." of surety as a defense against the creditor, 59, 60. when subsequent, no defense to contribution, 349. of principal, not a defense by surety against creditor, 235, 236. as a defense against surety, 307. as ground for setting aside forfeiture of bail bond, 401. INSOLVENCY, see, also, "Bankruptcy." meaning of, in guaranty of collection, 223 (note 477). of principal, excuses diligence by creditor in guaranty of col- lection, 223. no defense by surety against creditor, 237. proof of, in suit for contribution, 338. of surety, is not incapacity, 60. of co-surety, no ground for release by others, 193. as determining extent of release of, 253 (note 644). should be alleged in bill for contribution, 339. INSTALLMENTS, see, also, "Divisible Contract" ; "Rent." diligence must be used as to each, in guaranty of collection, 224. release of one, will not affect liability for others, 250. all must be paid to entitle surety to subrogation, 279. surety may pay in, and sue principal for each, 301. INDEX. 529 [The figures refer to pages.] INSTALLMENTS— Cont'd. when statute of limitations begins to run, as to, between surety and principal, 313. as to contribution for, 349. INSTRUMENT, see "Bond" ; "Negotiable Instrument." INSURANCE, see, also, "Insurer." conditions as to, 218 (note 442), 221 (note 464). See, also, "Con- dition." collection of, by creditor, is not payment, 244 (note 599). by creditor, of destroyed property, is no defense to surety, 234. INSURER, see, also, "Insurance." corporate surety is, 12 (note 46). del credere agent is, 92. distinguished from surety proper, 12. when a surety, 15 (note 53), 19 (note 66). oral contract of, is not within the statute of frauds, 92. INTENTION, see, also, "Construction." how ascertained, 105, 114, 116, 118, 121. decides whether promise is direct or collateral, 103. to be determined by the jury, 105. to become a supplemental surety, 322. construction of contract to effectuate, 114, 117, 189. of parties to guaranty, how ascertained, 128. to make contract retroactive, 220. of surety, to be liable for successive terms, how shown, 190. that partners may act on special guaranty after a change in their number, 259. in making alteration, 158, 170. contract will be reformed to show, 114, 116. of principal, sureties not affected by, 370. „ in relinquishing or losing security, is immaterial, 344. to pay, not sufficient to make bankrupt surety liable after dis- charge, 238. INTEREST, see, also, "Usury." payment of, in advance, by surety, implies consent, 155 (note 104). alteration as to, 162, 165 (note 166). when taking, is evidence of an extension of time, 178, 180. when consideration for an extension of time, 179. liability of surety for, to creditor, 47, 266, 268, 269, 270. Childs' Suretyship— 34 530 INDEX. [The figures refer to pages.] INTEREST— Cont'd. liability of guarantor for, from what time, 269 (note 737). liability of principal to surety for, 314, 316. contribution for, 331, 332. INTERVENE, surety can, 275. principal can, 273. INTOXICATION, see "Drunkenness"; "Insanity." INVESTMENTS, see "Guardian." INVOLUNTARY, suretyship, definition, 14. not within the statute of frauds, 89. payment by co-surety, sufficient, 341. See, also, "Payment." IRREGULAR, see "Defects" ; "Indorser" ; "Indorsement" IRREVOCABLE GUARANTY, see, also, "Guaranty," "Revocation." definition, 20. JOINT, bonds, sole surety on, is bound, 64. not made several by a subsequent statute, 124 (note 48). debtors, are sureties, 4, 19. when co-sureties, 322. surety for, is a supplemental surety, 6 (note 17). oral promise by, is not within the statute of frauds, 102. obligee must proceed against survivors, 207 (note 380). release of one will release all at law, 253 (note 644). effect of change in number of, 205. change of joint and several debtors to, is an alteration, 164. entitled to subrogation, 280. indemnity to one who has paid entire debt, 302. debts, when can be set off against separate debts, 272. fund, 303, 304. obligors, are sureties, 19 (note 66). JUDGE, see, also, "Officer" ; "Principal"; "Bond"; "Judicial Bonds." can bind himself as surety, 63. de facto, bond taken by, is valid, 76. See, also, "De Facto Offi- cer." INDEX. 531 [The figures refer to pages.] JUDGMENT, as evidence, see "Evidence." surety's rights not affected by, 146, 227, 233. subrogation to, 285, 290. when must be obtained by creditor to be entitled to subrogation, 290. must be rendered against all defendants or none, 275. for full penalty of the bond, 267. may be summarily rendered in some cases, 276. __ principal can confess, in favor of surety before payment, 295. against principal, creditor not required to obtain, 229. necessary to show insolvency, 223. for less than amount due, surety not liable for balance, 244. when release of, will discharge surety, 225. reversal of, gives surety no right to recover money paid creditor, 234 (note 535), 243 (note 589), 256 (note 664). , surety can have, assigned to him, 286 (note 835). owner of, acquiring land of principal subject to, discharges sure- ty, 234. confessing, is payment, 330 (note 61). enforcement of, by surety against principal, 305. payment of, if enforceable, is not voluntary, 308. contribution for amount required to satisfy, 332. affirmance of, renders sureties on appeal bond, liable, 379, 380. reversal of, discharges sureties on appeal bond, 381 (note 27), what is breach of bail bond to abide, 395. recognizance is conditional confession of, 389. liability of surety for principal's errors in, 216, 370, 371, 377. JUDICIAL BONDS, see, also, "Bond." definition, 376. I valid, though not statutory, 75 (note 236). 'sureties on, discharged by changes in course of procedure, 169. estoppel of, to deny jurisdiction of the court, 261, 264. to contradict recitals in, 262. in successive proceedings, are supplemental sureties, 251. JURISDICTION, see, also, "Nonresidence." ' surety estopped to deny, 261, 264. __ sureties for judicial officer, liable as to matters outside of, 371. not liable for excess of, 372. sureties can show, in mitigation of damages, that replevin suit was dismissed for lack of, 387. bail not discharged by absence of principal from, 391, 393. bail not discharged by arrest of principal outside of, 399. 532 index. [The figures refer to pages.] JUSTICE OF THE PEACE, see, also, "Judge"; "Principal"; "Officer"; "Bond"; "Ju- dicial Bonds"; "Official Bond." insolvency of principal is not shown by execution issued by, 223 (note 475). K KNOWLEDGE, see, also, "Notice" ; "Ignorance." Of relation, statute of frauds does not apply, if no, 102. creditor must have, to affect surety's rights, 148, 157, 158, 170. what constitutes, 150. when surety must prove, 149 (note 74), 151. is known to payee of a note, 151. how shown, by qualifying words, 47, 151. unnecessary, to make sureties co-sureties, 320, 321. is not consent, 155. of duress of principal, renders surety liable, 254. of fraud of principal, by creditor, discharges surety, 70. of default of principal, terminates sureties' liability on bond of employe, 192, 202. no defense to surety that obligee might have acquired, by examination, 203. by agent of obligee, when imputed to obligee, 67, 204. by guarantor, renders notice of, unnecessary, 146 (note 60). of conditions, creditor must have, to be affected by, 222. by creditor, assent presumed, 41. of death or change, by creditor, 205, 20S. 1 of law, by surety, presumed, 250. See, also, "Presumption." of facts showing no legal liability, makes payment voluntary, 256, 308, 342. by surety, may excuse notice of, 221 (note 462). of security, unnecessary to give right of subrogation, 276, 288, 351. unnecessary to entitle surety to benefit of, 319. L LABORERS, see, also, "Building Contract." when may hold sureties for building contract, 269. LACHES, see "Delay" ; "Statute of Limitations" ; "Waiver" ; "Consent." LAND, see "Property" ; "Conveyance"; "Grantor and Grantee"; "Mort- gage" ; "Lease" ; "Rent" ; "Assumption." INDEX. 533 [The figures refer to pages.] LANDLORD, see "Creditor" ; "Lease" ; "Rent." LANGUAGE, see "Construction" ; "Words." LARCENY, see "Theft"; "Default" LAW, see, also, "Act of Law"; "Conflict of Laws"; "Question"; "Bankruptcy" ; "Statute of Limitations" ; "Allen Enemy" ; "Constitution"; "Statute"; "By-Law"; "Involuntary." surety supposed to know, 250. See, also, "Presumption." alteration by, discharges surety, 160. change in, discharges bail, 398. LEASE, see, also, "Rent." surety estopped to show defective, 262. surety for, is liable though name does not appear in body of, 46 (note 93). guaranty of, is valid, though all lessees did not sign, 44. is a severable contract, 216. right of surety to terminate liability on, by notice, 193 (note 311J, when surety for, is not liable if tenant ejected, 219. subrogation, by surety for, to right to distrain, 284. LEAVE OP COURT, see "Bail." LEGALITY, see "Illegality." of consideration, see "Consideration." LEGISLATURE, see "Act of Law" ;_ "Statute." LETTER, of credit, 22, 121. of introduction, is not a guaranty, 127. LEVY, see "Execution." LEX FORI, see "Conflict of Laws." LEX LOCI CONTRACTUS, 80. LIENS, see, also, "Security"; "Mortgage"; "Judgment"; "Building Contract." suretyship arising from, 15. relinquishment of, is consideration for contract, 57. 534 INDEX. [The figures refer to pages.] LIENS— Cont'd. holders of, cannot enforce bond to owner of building, 256 (note 666). release of, by creditor, discharges surety, 225. subrogation to, 284. See, also, "Subrogation." LIMITATION, of actions, see "Statute of Limitations." of amount by surety, 47, 135 (note 7). of amount, effect in guaranty, 128. advancement in excess of, 162. as to time, effect in guaranty, 131. LIMITED GUARANTY, see, also, "Guaranty." LIQUIDATED DAMAGES, see "Damages." LOCALITY, see "Place." LOSS, see, also, "Damages" ; "Delay" ; "Relinquishment" ; "Negli- gence" ; "Fire" ; "Security" ; "Funds." of bond, does not prevent recovery on, 274. of security, by creditor, 224, 227, 231, 340, 344. of funds by principal, liability of sureties for, 374. LUNACY, see "Insanity"; "Drunkenness"; "Incapacity." M MAKER, see, also, "Negotiable Instrument." of a promissory note as a surety, 4. MARRIAGE, see, also, "Coverture" ; "Incapacity" ; "Married Women" ; "Wife." surety for alimony estopped to deny, 262. of creditor and principal discharges surety, 233. MARRIED WOMEN, conflict of laws as to capacity of, 80. contracts of, enforced in another state, 80. as sureties, 60. See, also, "Coverture" ; "Incapacity" ; "Mar- riage"; "Wife." MARSHAL, see "Officer"; "Principal"; "Official Bond." MATERIAL ALTERATION, see "Alteration." INDEX. 535 [The figures refer to pages.] MATERIALMEN, see "Building Contract"; "Liens." MEASURE OF DAMAGES, see "Damages." MEMBER, see "Partners." MEMORANDUM, see "Statute of Frauds." MERGER, as a defense to surety, 234. MILITARY SERVICE, when bail discharged by principal entering, 397, 399. MINISTERIAL ACTS, see "Judge." MINOR, see "Infancy" ; "Incapacity." MISAPPLICATION, see "Default"; "Payment"; "Security." MISREPRESENTATION, see "Fraud." MISTAKE, see, also, "Error." surety not liable though words are omitted through, 212. as to address of special guaranty, 258. when ground for reformation, 117. See, also, "Reformation." in application of payment, 246 (note 613). by creditor, in telling surety that debt is paid, 265, 266. relinquishment of security by, 231. MITIGATION OF DAMAGES, see "Damages." MOLESTATION, see, also, "Harmless." meaning of, 217 (note 439). MONEY, see, also, "Currency"; "Funds"; "Default"; "Payment"; "Loss"; "Fire." received by a public officer outside of scope of office, 123, 124. of third person used by principal to pay* debt, 245. of surety, must be applied as he directs, 246. See, also, "Applica- tion." what is a sufficient tender of, 248 (note 623). See, also, "Tender." of principal surrendered by creditor, 226. recovery of, by surety, 227, 234 (note 535), 256, 312, 391. 536 INDEX. [The figures refer to pages.] MONEY— Cont'd. cannot be taken in lieu of bail, 391. collected by creditor as insurance, is not payment, 244 (note 599). MORTGAGE, see, also, "Mortgagor" ; "Security" ; "Relinquishment." assumption of, effect, 4, 6 (note 20), 15. See, also, "Assumption." to secure notes, covers renewals, 319. as payment, 330 (note 61). release of, as to part of land, 249 (note 627). given as security, failure of creditor to record, 227, 345. See, also, "Loss." given by principal to surety, 295, 287, 318. suit to foreclose, by guarantor, parties, 318 (note 164). contribution towards payment of, 334. subrogation to, 284. See, also, "Subrogation." guaranty of payment of deficiency, 222. MORTGAGOR, see, also, "Mortgage"; "Assumption." as a surety, 3, 4, 18. released by as extension of time, 16, 171 (note 204). release of, will not release grantee who has assumed debt, 253. of property fraudulently conveyed, is principal, 18 (note 65). N NAMES, see, also, "Signature." of sureties need not appear in body of bond, 46. in body of bond, give constructive notice of conditions, 38, 39. See, also, "Notice" ; "Condition." alteration of. See "Alteration." of addressee of special guaranty, effect of change as to, 258 (note 676). of principal incorrectly stated in bail bond, 390. NATIONAL BANK, see "Bank"; "Corporation"; "Ultra Vires." NEGLIGENCE,, of principal, liability of sureties for, 370, 377. when none, 'liability of sureties for loss of funds, 374, 375. in notifying creditor of change in number, 209. in discovering defaults of principal, 69 (note 203). resulting in loss of security, discharges surety, 224, 227. of surety, in reading instrument, 70 (note 212). facilitating alteration, 157, 160. in learning facts, 308. of bail, 399. INDEX. 537 [The figures refer to pages.] NEGOTIABLE INSTRUMENT, see, also, "Indorser" ; "Indorsement" ; "Drawer" ; "Accept- ance"; "Accommodation Parties" ; "Note"; "Guarantor"; "Guaranty" ; "Subrogation." presumption, none, that any maker is a surety, 150. that payee knew that one maker is surety, 151. that co-makers with principal, are co-sureties, 321. co-sureties, 322. surety on, may become supplemental surety as to sureties on bonds given in judicial proceedings concerning, 251. liability of firm on, 79. by married -woman, sureties liable, 236. . with forged signatures of sureties, effect, 243 (note 592). consideration for, presumed, 54. for gambling transaction, void, 308. diversion of, 254 (note 654), 257. alteration as to, see "Alteration." surrender of, held by creditor as collateral security, 226. failure of consideration, 254 (note 654). intrusted by creditor to principal, effect, 218. payable on demand, when statute of limitations begins to run, 240 (note 571). estoppel of surety to show that he is not principal, 264. recovery by surety on, of face value from principal, 305. from firm, when given by one partner for firm, 300. possession is evidence of payment of, 298 (note 45). paid by surety, cannot be put in circulation against principal, 305 (note 85). what is payment of, by sureties from a joint fund, 304. right of co-sureties to enforce, against others, 282, 342. mortgage given to secure, covers renewals of, 319. surety for an agent is not liable for his, given individually, 214 (note 417). given by principal to surety, is valid, 295. for interest in advance, is consideration for an extension of time, 179, 181. giving, is an extension of time, 177. containing forged signatures, is not a renewal, 177 payment by, see "Payment." purchaser for value without notice, surety does not become by subrogation, 277 (note 778). of ultra vires, can enforce, 63. that it was signed by partner without authority, can en- force, 79. relation cannot be shown against, by oral evidence, 148, 153. contract of irregular indorser cannot be shown against, 364. is not subject to conditions, 41, 42 (note 76), 222. want of consideration cannot be shown against, 48, 54. 538 INDEX. [The figures refer to pages.] NEGOTIABLE INSTRUMENTS— Cont'd. failure of consideration cannot be shown against, 254. alterations cannot be shewn against, if surety has been neg- ligent, 160. can hold surety, though time has been extended to principal, 185. NONCOMMERCIAL GUARANTY, see "Guaranty." NON COMPOS MENTIS, see "Insanity" ; "Drunkenness" ; "Incapacity." NONCONTINUING GUARANTY, see "Guaranty." NONNEGOTIABLE INSTRUMENT, see "Alteration" ; "Payment." NONPAYMENT, see "Payment." NONPERFORMANCE, see "Performance." NONRESIDENCE, of surety, 64. of principal, 195 (note 321), 198, 223. of co-surety, 338, 339. NOTARY PUBLIC, see "Officer"; "Official Bond"; "Principal." NOTE, see, also, "Negotiable Instrument" ; "Indorsement" ; "In- dorser"; "Promissory Note." guaranty of, consideration for, 50 (note 111), 57. See, also, "Con- sideration." when transferred, is not within statute of frauds, 101. for 'election bet, is void, 59 (note 156). See, also, "Illegality." for public funds illegally loaned, 59. conflict of laws as to, 80. See, also, "Conflict of Laws." NOTICE, see, also, "Knowledge." of lack of authority of partner to bind firm, 79. of relation, 47, 151. of conditions, 36, 40, 222. of acceptance, 25, 30-33. of fraud, on surety by principal, creditor has, if standing by, 70. must be given, if contracted for, though matter unimportant, 204. to surety, unnecessary, if he has knowledge, 221 (note 462). by creditor, requisites of, 134. INDEX. 539 [The figures refer to pages.] NOTICE— Cont'd. of amount, to guarantor, 133, 134, 144. of principal's default, 120, 133, 202, 204. to guarantor, 133, 143, 144, 145, 146. termination of liability by, surety's Tigbt, 191, 193 (note 311). guarantor's right, 192, 194. to revoke guaranty, 208. ,to proceed against principal, at common law, 193, 194. can be given in some states, 194-196 (note 321). under statute, 192-198. statute strictly construed, 196. relation need not appear, 196 (note 324). right to give, 196. evidence of giving, 196. by whom given, 196, 197, 347. to whom given, 198. unavailing, if principal a nonresident, 198. requisites, 195-197. compliance with, 195, 198. withdrawal of, 197. sureties for personal representative not entitled to, of settlement of accounts, 378. of defenses against creditor, 308, 311. by surety, principal not entitled to, 303. of suit, 298, 306, 315, 329. by co-surety unnecessary, that debt is paid, 329. to indorser, 356 (note), 361, 363 (note 35), 365 (note 41). NOVATION, see, also, "Merger." not within statute of frauds, 94. NUMBER, see "Change"; "Alteration"; "Partners." OATH, surety not discharged by principal's failure to take, 263, 368 (note 3). OBLIGATION, see "Bond." OBLIGEE, see, also, "Creditor" ; "Bond." definition, 3. must respect rights of surety as soon as relation known, 148. has constructive notice from face of Instrument, 40. bond without is void, 120. surety estopped to deny legal existence of, 261, 264. 540 INDEX. [The figures refer to pages.] OBLIGEE— Cont'd. form of official bond to protect, 407. delivery to one, sufficient, 35. fraud by, 64, 67, 69. default of principal, knowledge of, 192, 202-204. report by of delinquencies, 204. termination of surety's liability, 205, 207, 257. can recover on lost bond, 274. burden to allege and prove breach, 273, 274. ■when can hold surety before damage, 216, 276. by own act, may prevent breach of bond, 211, 343. enforcement of bond, 257. holds surety as principal, 133. can proceed against either co-surety, 269. rights of, not affected by delay, 133, 140. not required to proceed first against principal, 133, 134. not required to exhaust security, 133, 136. not required to give notice of default of principal, 120, 133. not required to make demand of surety, 133. duress by, surety not liable, 71. cannot hold surety for defaults of principal outside of service, 204. reserving rights against surety, on extending time to principal, 171, 183. conditions, 37, 38 (note 63), 41, 143, 204, 210, 221. may waive provisions which are for his sole benefit, 165. preventing performance of contract, cannot hold surety, 210, 217, 398. when can recover attorney fees, 270. subrogation against, surety's right' of, 276-279. See, also, "Sub- rogation." OBLIGORS, see, also, "Surety" ; "Bond." delivery by part of, is binding on them, 39 (note 66). OFFER, necessity of, 24. acceptance of, 25, 32, 33. See, also, "Acceptance." revocation, 33, 34. OFFICE, see "Annual Office"; "Officer"; "Bond"; "Duties"; "Funds." OFFICER, see, also, "Judge" ; "Official Bond" ; "Principal." meaning of, 367. de facto, definition, 263. bond taken by, is valid, 76. INDEX. 541 [The figures refer to pages.] OFFICER— Cont'd. public, what is, 367. notary public and attorney, 367 (note 1). no contract with, 368. duties fixed by law, 368. holds himself out as possessing ability to perform duties, 370. OFFICIAL BOND, see, also, "Bond"; "Officer"; "Statutory Bond'.*; "Volun- tary Bond." definition, 367. officer liable without, 43. not required by common law, 368. form of, 403, 407. filing, 36. failure as to, may vacate office, 368. may be withdrawn prior to acceptance, 34. approval of, 31. may cover prior acts if delivered after beginning of term, 220. signatures added to existing, 220 (note 456). duration of surety's liability on, indefinite, if irrevocable, 119, 189, 191, 193. prepared for one term, and not used, cannot be used for next, 188 (note 297). termination of surety's liability on, by new bond, 192, 199, 202. void, if extorted from principal, 74 (note 231). See, also, "Du- ress." execution of by sureties under illegal agreement, 311. sureties liable on, though office abolished before principal's elec- tion, 263. sureties estopped to deny election or appointment of principal, 261, 262. of de facto officer, is enforceable, 263. sureties liable, though principal did not take oath, 263, 368 (note 3). sureties discharged by extension of term of principal, 160, 190. acts for 'which sureties are liable on, 367-373. colore officii and virtute officii, 368. failure of principal to perform duty, 370, 371 (note 16). performance of lawful act improperly, 370. performance of unlawful act -willfully, 370. falsification of accounts, 221. does not cover duties not within scope, 211. does not cover acts by principal as agent, 211, 372. does not cover defaults in private transactions of principal, 372, 373. 542 INDEX. [The figures refer to pages.] OFFICIAL BOND— Cont'd. for general duties does not cover duties for which a special bond has been gjven, 199. surety not liable for acts of principal outside locality, 213. liability of sureties for errors of judgment by principal, 216, 371. liability of sureties for acts of deputies, 373. liability of sureties for judicial officer, 370-372. liability of surety on, after his discharge in bankruptcy, 238. See, also, "Bankruptcy." statute of limitations, "when begins to run against surety on, 240. See, also, "Statute of Limitations." funds covered by, 123, 124, 211, 214, 270, 274. See, also, "Funds." sureties not liable for statutory penalties, 271. cannot be enforced in favor of a surety thereon, 257. how action on, should be brought, 257. surety on, in force at time of principal's default, is liable, 192. entries by principal are evidence of breach of, 275. sureties on, presumed to be co-sureties, 321. sureties on different, may be co-sureties, 321, 322. OMISSION, see, also, "Negligence"; "Default"; "Mistake"; "Reforma- tion"; "Error." of penalty, renders bond invalid, 120. of terms, court will not supply, 120. OPEN GUARANTY, see, also, "Guaranty." definition, 20. OPERATION OF LAW, see "Act of Law" ; "Involuntary" ; "Bankruptcy" ; "Statute of Limitations" ; "Incapacity" ; "Alien Enemy." OPINION, see, also, "Fraud." is not a guaranty, 127. ORAL EVIDENCE, see "Evidence" ; "Statute of Frauds." ORDINARY INDORSER, see "Indorser." OWNER, see "Building Contract"; "Obligee." P PARDON, of principal, when bail discharged by, 400. PART PAYMENT, see "Payment" ; "Consideration" ; "Installments." INDEX. 543 [The figures refer to pages.] PARTIES, see, also, "Indemnity" ; "Contribution." competency of, 24. See, also, "Incapacity." change as to, in appellate court, 380 (note 26). to foreclosure of mortgage by guarantors, 318 (note 164). to subrogation, 2S8. See, also, "Subrogation." PARTNERS, see, also, "Assumption." suretyship arising from changes among, 17. extension of time to one who assumes debts of, discharges others, 172 (note 204). subrogation against, by retirifijsnartner, 281. See, also, "Subroga- tion." ^\ authority of one to bind the firm, 77/^78. promise by one, as to firm debt, not within statute of frauds, 102. guaranty by, revoked by change in number, 194, 208. making payment as sureties, can join in suit against principal for indemnity, 304. as co-sureties, extent of liability for contribution, 334. unauthorized signature of firm by one, 44 (note 83), 80. surety for, effect of change among, 186, 209. when surety for one can recover from the firm, 300. surety for one, cannot apply firm funds to debt, 297 (note 29). cannot enforce bond given to one, 256 (note 666). special guaranty addressed to firm or member, 259. cannot hold surety after change in number, 205. surety estopped to deny legal existence of partnership, 261, 264. PAST CONSIDERATION, see "Consideration" ; "Forbearance." PATENT RIGHT, fraudulent sale of to principal, 255. PAYMENT, see, also, "Performance." subrogation on payment, see "Subrogation." guaranty of, see "Guaranty." what constitutes, 242, 292, 300, 325, 330. giving negotiable instrument, 215, 243, 300, 325 (note 28), 330, 337. nonnegotiable instrument is not, 301 (note 59), 330. bank notes, 330 (note 61). giving property, 242, 300, 312, 330, 341. giving mortgage, 330 (note 61). confessing judgment, 330 (note 61). imprisonment, 244, 301. collection of insurance money by creditor is not, 244 (note 599). by surety's agent, ratification, 299. discharges surety, 242, 245. 544 INDEX. [The figures refer to pages.] PAYMENT— Cont'd. of proportionate part does not discharge surety, 243. •with borrowed money gives lender no rights against surety, 245. illegal, surety not discharged, 244. part, suspends running of statute of limitations, 241. application of, 245-247. voluntary, 308. by surety, cannot recover from principal, 306, 308. cannot have contribution, 340, 342. what is, 310, 342. what is not, 298, 308, 309, 328 (note 45), 343. as to part of the debt, 308. iby surety with knowledge of facts, cannot be recovered from creditor, 256 (note 664). cannot be recovered after reversal of judgment against principal, 243 (note 589). involuntary, sufficient, 300, 341. from joint fund, what is, 304, 337. by bail, effect, 389. by surety, recovery from principal, 292, 294, 298, 301, 303. as a defense by principal against surety, 306, 312. by a co-surety, insufficient, 315. by co-surety, contribution, 328, 331. presumed to be as an individual, 304 (note 76). not obliged to give notice of, 329. lack of, as defense to contribution, 340, 341. as defense to contribution, 340, 343. of mortgage by one party, liability for contribution, 334. alteration as to, see "Alteration." of part of debt, when consideration for an extension of time, 182. no consideration for release, 248 (note 626). of interest in advance by surety, implies consent, 155 (note 104). possession of note is evidence of, 298 (note 45). when sureties for a personal representative are liable for his failure to make, 376, 377. obligee being called upon to make, when a breach of bond, 217. of mortgage is not guaranteed by guaranty of payment of deficien- cy, 222. when surety discharged by creditor saying that there has been, 265, 266. by obligee may prevent the contingency against which a bond was given, 211. PENALTY, definition, 119. bond without, is void, 46, 120. where two amounts named as, lesser governs, 125. more or less than statute requires, does not invalidate bond, 74. each surety liable for, 267. INDEX. 545 [The figures refer to pages.] PENAI/TT— Cont'd. when sureties liable for, 267, 271, 400. liability of surety in excess of, 266, 267, 269. judgment given for full amount of, 267. PBEFORMANCB, see, also, "Change." surety discharged by, 3, 210, 394. by principal, discharges surety, 211. presumed, 211. in the alternative, 216. when excused by act of creditor or obligee, 210, 217, 219. impossibility of, by act of law or by the public enemy, 233 (note 530). public officer holds himself out as capable of, 370. as to duties, 211, 212, 370. default must relate to service, 204. covered by a special bond, surety on general bond not liable for, 192, 199. by deputies, 74 (note 232). not excused by sickness of public officer, 371 (note 16). as to time, 186, 213. See, also, "Time." as to place, 213, 296. alteration as to, 161, 164. See, also, "Alteration." as to amounts, 211, 214. See, also, "Funds." by payment, 243. See, also, "Payment." surety not liable beyond lesser of two penalties in bond, 125. surety not liable for funds outside scope of office, 123, 124. of guaranty of payment, 215. of conditions, necessary to hold surety or guarantor, 204, 210, 218 (note 442), 221. to entitle creditor to subrogation, 290. after time passed, insufficient, 222. annexed to extension of time, 176. not excused because no injury results from nonperformance, 223 (note 478). to enforce defense of bankruptcy, 238. when impossible, 120. what is, of bond to turn over building free from liens, 211. waiver of, 221. surety on contract that principal would not leave, not liable for defalcation, 211 (note 400). as a defense by principal against surety, 312. construction of contract governed by place of, 131. See, also, "Construction." of agreement between creditor and principal necessary to dis- charge, surety, 233 (note 530). •" Childs' Stjbetyship— 35 546 INDEX. [The figures refer to pages.] PERSONAL REPRESENTATIVE, see, also, "Administrator" ; "Principal." of guarantor, liable if they have been bound, 208. of surety, can give statutory notice to sue principal, 197. of co-surety, is proper party to suit for contribution, 338. liability of sureties for, 376, 377. sureties for, not entitled to notice of settlement of accounts of, 378. suit on bond of, 378. can enforce bond given to deceased, 257. PERSONAL SURETYSHIP, see, also, "Suretyship." definition, 14. PLACE, see, also, "Performance." guarantor of note to be payable at a particular bank, not liable if not specified, 213 (note 411). alteration as to, 161, 163, 164, 166 (note 176). See, also, "Altera- tion." of business, change of principal's, is not an alteration, 161 (note 137). drawer and indorser warrant that drawee is at designated, 358. PLEADING, guaranty must be pleaded specially, 9. plaintiff need not allege written contract, 112. statute of frauds, 112, 113. breach of contract, 273, 274. assumpsit, for indemnity by surety from principal, 304. in action for contribution, 336, 338. in suit for subrogation, 288. PLEDGE, see, also, "Security." pledgor, a surety, 3, 18. when co-surety, 322. can recover from creditor, if fraud on principal, 255. discharged by extension of time to principal, 172 (note 204). entitled to subrogation, 281. relinquishment of, discharges surety, 226 (note 488). POSTMASTER, see, also, "Official Bond"; "Principal." surety for, liable for act of clerk of, 212 (note 405). PRACTICE, see "Action" ; "Pleading" ; "Evidence." PREFERENCE, see "Bankruptcy"; "Priority"; "Payment." INDEX. 547 [The figures refer to pages.] PRESENTMENT, see "Indorsement" ; "Indorser" ; "Demand." PRESUMPTION, see, also, "Burden of Proof ; "Evidence." none, that one of two or more signers is a surety, 150. that payee of a note knows that one maker is a surety, 151. that contract is written, 112. that joint signers with principal are co-sureties, 321. that those liable in different relations are not co-sureties, 324. as to time of making contract, 54, 108, 362. that surety knows the law, 123, 308, 342. that surety contracted with reference to statutes and by-laws, 189, 190. that surety signed at the request of the principal, 45 (note 89). that principal will sign, 39 (note 67). that official bond was approved, 31. as to consideration, 48, 49 (note 108), 54. as to condition, 39, 41. that contract is not retroactive, 220. of extension of time, 178, 180. that surety performed contract, 211. when, that demand was made of officer, 240. that default occurred during last term, 192, 200. as to security, 31 (note 34), 294, 344. when, that sum named as liquidated damages is a penalty, 271. that sureties pay debt individually, 304 (note 76). as to indorsement, 356, 358, 359, 363. that drawee owes drawer, 358. that surrender of principal is the act of all the bail, 393. PREVENTION, see, also, "Act of Creditor or Obligee." of performance by creditor or obligee, discharges surety, 217. PRINCIPAL, see, also, "Officer." definition, 2. if none, no surety, 233. creditor may become, 81 (note 264), 297 (note 36). grantor under warranty deed is, 16. See, also, "Grantor and Grantee." grantee assuming debt, becomes, 82. See, also, "Assumption." accommodated party is, 365. See, also, "Accommodation Parties." surety as, 123, 251, 261, 264. when drawer is, 354, 358. agent signing without authority is, 44 (note 83). can become surety, 81. as agent of surety, 35, 38, 41, 78, 154. See, also, "Agent." 548 INDEX. [The figures refer to pages.] PRINCIPAL— Cont'd. presumption as to signature by, 39 (note 67). unauthorized signature by, surety bound, 44 (note 83), 77. no defense that name in bail bond is incorrect, 390. guaranty addressed to, is general, 259. promise to, not within statute of frauds, 98. incapacity of, does not take surety's contract out of statute of frauds, 95. known default of, 168, 192, 202, 204. express stipulation by surety for notice of irregularities by, 120. defaults of, which could have been discovered by examination, 69 (note 203), 203, 204. death of, 205, 206, 380 (note 23). See, also, "Death." removal or resignation of, terminates surety's liability, 188. bad habits of, will not release surety, 193. change in number, terminates guaranty, 168 (note 185), 205. duties, change in, 166, 167. consent to changes in contract of employment of, 154. change of business by, guaranty not terminated, 194 (note 318). change of place of employment, discharges surety, 166 (note 176). change of place of business, not an alteration, 161 (note 137). change of compensation of, 166, 167. -marriage of, to creditor, discharges surety, 233. -judgment in favor of, may be set up by surety, 233. must perform agreement with creditor to discharge surety, 233 (note 530). capacity of, imported in contract of suretyship, 235. a de facto officer, sureties liable, 263. surety estopped to deny election or appointment of, 261, 262. failure of, to take oath, surety liable, 263. ▼••fraud on, by creditor, as a defense to surety, 254, 255. fraud by, on surety, 70. duress of, 74 (note 231), 254. See, also, "Duress." duress of surety by, 72. ^personal defenses of, not available to surety, 238. , an alien enemy, no defense to surety, 235. statute of limitations in favor of, no defense to surety, 235. property of, coming into creditor's hands, discharges surety, 234. security given by, see "Security." discharge of, will discharge surety, 232. performance by, see "Performance." default by, see "Default." good faith of, 370, 382. See, also, "Intention." payment by, see "Payment." imprisonment of, surety cannot be held while continuing, 244. tender by, discharges surety, 242, 247. See, also, "Tender." INDEX. 549 [The figures refer to pages.] PRINCIPAL— Cont'd. release of, effect on liability of surety, 148 (note 71), 155, 227 (note 492), 242, 248, 249 (note 627), 251. See, also, "Release." takes away right of contribution, 345. consent to, 153 (note 95). part payment not a consideration for, 248 (note 626). remains liable after release of surety, 252. suit against, 194-198. diligence against, what excuses, 223. insolvency of, what is, 223 (note 477). when corporation is, in guaranty of collection, creditor need not exhaust stockholders, 222 (note 471). making surety believe note paid, effect, 218. promise of creditor to look to, discharges surety, 265. bankruptcy or insolvency of, no defense to surety, 235, 237. extension of time to, effect, 148 (note 71), 345. See, also, "Ex- tension of Time." creditor not obliged to obtain judgment against nor levy upon, 229. creditor not obliged to file claim against estate of deceased, 239. admissions of, and entries by, are evidence against surety, 274. counterclaim of, against creditor, when surety can set off, 272. judgment against, by creditor, for less than amount due, surety not liable for balance, 244. reversal of, surety cannot recover money paid creditor, 234 (note 535), 243 (note 589), 256 (note 664). cannot recover from surety, 296, 297, 365, 366. rights of surety against, see "Indemnity" ; "Surety." buying surety's property at execution sale, cannot hold same, 294. homestead right of, determined by law in force at time of mak- ing contract, 296. request by, to surety, to sign, when presumed, 45 (note 89). estoppel of, to question validity of surety's obligation, 311. not entitled to notice of suit against surety, 298. permission to surety to pay creditor, unnecessary, 292, 297. liable to surety, though surety's contract oral, 88. amount of liability of, to surety, 294, 305. judgment against, whether evidence against surety, 275. agreement by, that payment by surety shall be conclusive of li- ability of, against public policy, 315. surety cannot speculate on, 278, 314, 315. liable to surety for claim set off by surety against creditor, 315. can recover from surety excess of payments made by, 314. defenses of, cannot be waived by surety, 309. must notify surety of defenses against creditor, 308, 311. infancy of, no defense against guarantor of necessaries for, 307. when judgment against surety is evidence against, 315. S50 INDEX. [The figures refer to pages.] PRINCIPAL— Cont'd. payment in funds of, a defense to contribution, 340, 341. indebtedness of to co-surety, no defense to contribution, 341. ■ purchase of property of, at a nominal price, a defense to con- tribution, 341 (note 114). is proper party to suit for contribution in equity, 338. when necessary to allege insolvency of, in suit for contribution. 338. bail discharged by refusal of state to arrest, 218. cannot recover money deposited with bail, 312. PRIORITY, see, also, "Bankruptcy." by surety secured by suing principal on original instrument, 305. subrogation to, 286, 287. PRISONER, see "Bail"; "Imprisonment." PRIVILEGES, see, also, "Liens." subrogation to, 286. PROCEDURE, see "Action"; "Pleading"; "Evidence." PROCEEDS, see "Security." PROMISSORY NOTE, see, also, "Negotiable Instrument"; "Indorsement"; "In- dorser" ; "Note." joint maker of, a surety, 4. paayble to maker's order, and unindorsed, liability of guarantor of, 44 (note 84). PROOF, see . "Burden of Proof" ; "Evidence" ; "Presumptions" ; "Bank- ruptcy"; "Estate." PROPERTY, surety can recover pledge of, from creditor, if fraud on prin- cipal, 255. of principal, surrender of, by creditor, discharges surety, 226. surety may sell if debt due, 318. is common fund for protection of all co-sureties, 341 (note 114), 351. payment in, 242, 300, 312, 330, 331, 341. tender of, not sufficient, 248 (note 623), 382. destruction of, as a defense to surety for, 232, 234. damages recovered arising from attachment of, 383. delivery of, under forthcoming bond, may be waived, 382 (note 38). sureties on replevin bond liable for failure to restore, 385. INDEX. 551 [The figures refer to pages.] PROPERTY— Cont'd. amount stated in replevin bond is evidence of value of, 386 (note 64). sureties for guardian are liable for what, 378. sureties for officer liable for improper levy on, 369. PROTEST FEES, guarantor not liable for, 270. PUBLIC ENEMY, see, also, "Alien Enemy." as a defense, 233 (note 530). PUBLIC OFFICER, see "Officer" ; "Official Bond" ; "Principal." PUBLIC POLICY, see, also, "Illegality." requires sureties for public officer to be insurer of funds, 374. as a defense between principal and surety, 306, 311. bail not allowed indemnity from principal, 293 (note 4). provision that payment by surety shall be conclusive against prin- cipal, is against, 315. subrogation not allowed contrary to, 287. PURCHASER, see, "Assumption" ; "Grantor and Grantee" ; "Negotiable Instru- ment." Q QUALIFICATION, see, also, "Incapacity"; "Condition." of liability, 47. of condition, by recital in bond, 119. QUALIFIED INDORSEMENT, see "Indorsement"; "Indorser." QUASHING, of indictment, when a defense to bail, 395. QUESTION, see, also, "Evidence." of fact, sufficiency of notice of acceptance is, 33. whether promise is original or collateral, 105. whether notice of default given in reasonable time, 145. whether an extension of time has been granted, 176. of law, construction of language is, 126 (note 54). R RAILROAD COMPANY, see "Corporation" ; "Ultra Vires." 552 INDEX. [The figures refer to pages.] RATIFICATION, see, also, "Consent" ; "Waiver." ■what constitutes, 154 (note 97). of act of agent of surety, 77. of filling in blanks, 42 (notes 75 and 76). of alteration, 154 (note 97), 343. of signature to memorandum required by statute of frauds, 110. of payment, by surety, 299. guaranty of, is not guaranty of payment, 211. REAL SURETYSHIP, definition, 14. REARREST, see "Bail." RECITAL, definition, 119. form of, 413. in bond, qualifies condition, 119. in appeal bond, 380. surety estopped to deny, 261, 262. RECOGNIZANCE, see, also, "Bail." definition, 388. nature of, 389. pronunciation of, 389 (note 2). distinguished from bail bond, 388. may be taken after final process, 389. designation of sureties on, 389. rights and liabilities of sureties on, 389, 390. want of consideration cannot be shown, 49 (note 109). sureties have right to arrest and surrender principal, 391. sureties not liable if void, 390, 398. alteration of, 160. discharge of sureties by act of God, act of law, or act of the obligee, 397. sureties discharged by performance, 394. default as to, 389. sureties not discharged by absence of principal from state, 391. RECOMMENDATION, is not a guaranty, 126. to sue principal is not demand to do so, 197 (note 332). RECOUPMENT, see "Counterclaim." REFORMATION, see, also, "Mistake." of contract, 114, 116, 117. INDEX. 553 [The figures refer to pages.] REGULAR INDORSEMENT, see "Indorsement" ; "Indorser." RELATION, see "Change" ; "Knowledge" ; "Notice." RELEASE, see, also, "Cancellation"; "Relinquishment"; "Security." covenant not to sue, is not, 248 (note 626). is consideration, 57, 88, 56 (note 140). without consideration, is not binding, 252 (note 643). part payment, 248 (note 626). procuring insolvent principal to pay part, is consideration for from contribution, 347 (note 155). abrogating provision for, is an alteration, 164. of surety, 242, 248, 249, 250. will not discharge principal, 155, 253. discharges supplemental surety, 251. of principal, effect on surety's liability, 148 (note 71), 227 (note 492), 251. consent to, 153 (note 95). of indorser, effect, 249 (note 627), 251 (note 637). of grantor will not release grantee who has assumed debt, 253. of one installment, will not affect rest, 250. of lien by creditor, discharges surety, 225. of mortgage as to part of the land, effect as to the remainder, 249 (note 627). of securities by surety, effect on creditor's subrogation, 290. of co-surety, effect, 252, 253, 263 (note 644). as defense to contribution, 340, 345, 347. RELINQUISHMENT, see, also, "Release" ; "Loss." of security, see "Security." of lien, is consideration, 57. payment of installments to building contractor in advance, dis- charges surety, 166. REMEDY, see, also, "Action." summary, 276. REMISSION, of forfeiture of bail bond, 400, 401. REMOTE DAMAGES, see "Damages." REMOVAL, see, also, "Nonresldence." of principal, surety not liable thereafter, 188. 554 INDEX. [The figures refer to pages.] REMUNERATION, see "Compensation." RENEWAL, see, also, "Extension of Time"; "Negotiable Instrument?'; "Payment." when payment, 243. of security, creditor under no duty to procure, 229. notes are secured by the mortgage given to secure the originals, 319. RENT, see, also, "Lease"; "Divisible Contract"; "Installments." guarantor of, liable for each installment as due, 216. release of some installments, will not release as to others, 250. rent due not released by surrender of lease, 250. for entire term not covered by guaranty during occupancy, 216. surety not liable for, after expiration of lease, 187. guarantor of, not discharged by assignment of lease, 168. surety for, not discharged by destruction of the property, 234. guarantor of, not discharged by collection of insurance money by landlord, 244 (note 599). discharge of surety or guarantor by alteration of lease, 168. See, also, "Alteration." guarantor of, discharged by reduction in, 168 (note 185). not discharged by a collateral agreement, 168. sureties for administrator not liable for, 377. surety on appeal bond not liable for, 267. REPEAL, see "Statute." REPLEVIN BOND, see, also, "Bond"; "Judicial Bond." object and conditions of, 386. must be tendered officer before he can be required to act, 386. sureties estopped to contradict recitals, 262. liability of sureties on, 385-387. judgment is evidence in suit on, 386. amount stated in is evidence of value of property, 386 (note 64). surety entitled to indemnity from principal, 311. REPRESENTATION, see "Fraud." REQUEST, see, also, "Recommendation." is not a guaranty, 126. to become a surety, 307. to principal from obligee, not to perform, surety discharged, 217. INDEX. 555 [The figures refer to pages.] RESERVATION, of rights against surety, 171, 184, 185, 251, 253. of rights against co-surety, on release of one, 252. of right to make changes, see "Consent" ; "Alteration" ; "Build- ing Contract." RESIDENCE, see "Nonresidence" ; "Capacity." RESIGNATION, see, also, "Annual Office." of principal, terminates surety's liability, 188. RESTRICTION, see, also, "Limitation" ; "Condition." of liability by surety, 269. RESTRICTIVE INDORSEMENT, see "Indorsement"; "Indorser." RETROACTIVE, contract, 220. statutory bond valid, 74. guaranty, 67 (note 196), 220. RETURN, see, also, "Relinquishment" ; "Surrender." of property prevented by its destruction, surety discharged, 234. REVERSAL, of judgment against principal gives surety no right to recover money paid creditor, 234 (note 535), 256 (note 664). REVIEW, see "Appeal Bond." REVIVAL, see "Waiver" ; "Statute of Limitations." REVOCATION, of guaranty, see "Guaranty." of offer, 33, 34. ROBBERY, when sureties liable for loss of funds by, 374. RULE, see, also, "Construction." of court, person is bound who becomes surety in violation of, 63. s SALARY, see "Compensation" ; "Alteration." SATISFACTION, see "Payment"; "Performance." 556 INDEX. [The figures refer to pages.] SEAL, see, also, "Bond." necessity, 47. sufficiency, 46. one may be adopted by two or more, 46. abolishment of, 46. authority of agent to execute under, 111. estops denial of consideration, 49, 50. not required by statute of frauds, 109 (note 107). dispenses with mention of consideration in memorandum required by statute of frauds, 109. alteration as to, 164. whether instrument under, can be extended orally, 177 (note 231). surety cannot recover from firm if instrument under, was given by one partner for firm, 300 (note 54). SECURITY, see, also, "Subrogation"; "Pledge" ; "Collateral Security." by principal to creditor, need not be exhausted, 133, 136. need not be sold before maturity, 229. creditor must exhaust to enforce guaranty of collection, 224. may be enforced after statute of limitations has run against principal, 239 (note 567). application of, 226 (note 490), 246. for notes, covers renewals thereof, 319. proceeds must be accounted for, 226, 243. relinquishment of, discharges surety, 224, 227, 278, 279, 266. payment in advance on building contract, 166. consent to, 153 (note 95), 278. extent of release, 230, 231. burden on creditor to show that it was unavailable, 231. checking out deposit in bank, 227. by mistake, surety not affected, 231. as defense to contribution, 340, 344. change in form of, surety not affected, 230. transfer to third person, surety not discharged, 231. creditor not required to obtain or preserve, 229. subrogation, 276. by principal to surety, does not affect his rights, 31 (note 34), 277, 292, 294. cannot be applied on other debts, 319. surety not discharged by extension of time to principal, 171, 184. unless worthless, 185. creditor subrogated to, 276. surrendered by surety by creditor's inducement, discharges, 266. application of, 318. INDEX. 557 [The figures refer to pages.] SECURITY— Cont'd. may be enforced though statute of limitations has run as to principal, 318. by principal to co-surety, inures to all, 351. must be accounted for, 341. expenses can be retained, 351. relinquishment or loss of, 276, 344, 345. exchange of, 345. co-surety must show that disposition was proper, 345. for another debt, 345. burden on co-surety to show, 345 (note 138). apportionment of, among debts, 352. contribution not affected by, 327, 328 (note 40). received after rights adjusted, can be retained, 352. subrogation to, 350, 351. hy principal to third person, surety entitled to though ignorant thereof, 319. by co-surety to co-surety, no subrogation to, 352. by third person to co-surety, can be retained, 350, 352. SELLER, see "Assumption" ; "Grantor and Grantee." SET-OFF, see "Counterclaim." SEVERABLE CONTRACT, see "Divisible Contract"; "Rent"; "Installments." SHERIFF, see "Officer"; "Principal"; "Official Bond." SICKNESS, no excuse for failure of officer to perform his duty, 371 (note 16). of principal as ground for setting aside forfeiture of bail bond, 401. of bail, no defense, 401 (note 90). SIGNATURE, see, also, "Names." by surety, necessity, 46. place of, 45. presumed to have been at request of principal, 45 (note 89). forgery of, or without authority, no defense as to others, 76, 77. on renewal note, effect, 243 (note 592). no presumption that one of two or more, is a surety's, 150. on condition, 36, 37, 39. See, also, "Condition." added to existing bond, beginning of liability, 220 (note 456). by principal, necessity of, 43. unauthorized, liability of sureties, 44 (note 83). to memorandum required by statute of frauds, 109-111. 558 INDEX. [The figures refer to pages.] SIGNATURE— Cont'd. alteration as to, 163. See, also, "Alteration." of witnesses, immaterial, 170 (note 202). SPECIAL BAIL, see "Bail." SPECIAL GUARANTY, see "Guaranty." SPECIAL INDORSEMENT, see "Indorsement" ; "Indorser." SPECULATION, see "Notice" ; "Indemnity" ; "Contribution." SPOLIATION, see "Alteration." STAMP, surety not discharged by absence of, 47 (note 100). STATEMENT, see "Fraud." STATUTE, see, also, "Act of Law"; "Statute of Frauds"; "Statute of Limitations" ; "Statutory Bond." surety becoming such in violation of, is bound, 59, 63. surety bound though noncompliance with, 74 (note 229). contract construed with reference to, 114, 122, 189, 190. oral evidence inadmissible to vary irregular indorser's contract as fixed by, 359, 364 (note 37). conditions annexed by, 39 (note 66), 133, 143. may make surety liable as principal, 123. may make surety liable for successive terms, 190. requiring examination of principal's accounts, not for surety's benefit, 203. making office vacant if bond not filed, 368. fixing term of office, surety not liable longer, 188. making recognizance void, discharges sureties, 398. abolishing imprisonment for debt, discharges bail, 398. effect on contract of amendments to, or repeal of, 123. changing venue, bail not discharged, 396 (note 62). cannot make existing joint bond a several one, 124 (note 48). effect of extension of time by, 174, 190, 213. requiring creditor to resort first to security, 136 (note 12). authorizing surety to require suit by creditor, 192-198. requiring levy on principal's property first, 137 (note 16), 147 (note 70). allowing summary remedies, are constitutional, 276. surety not liable for penalties under, 271. subrogation to liens given by, 285 (note 827). making surety incapable of recovering from principal, 307. INDEX. 559 [The figures refer to pages.] STATUTE OF FRAUDS, see, also, "Evidence." enactment of, 84. text of, 84. object of, 84. construction of, 87. requires written evidence, 83, 113 (note 126). does not make oral contract void, 87, 88, 112. promises partly within, 83, 86, 105 (note 79). promise to pay for labor and material, 105. when applies, substance of contract determines, 83, 85. agreement to become surety, 85. to answer for implied promises, 88, 89. voidable contracts of principal, 93, 95. does not apply, to involuntary suretyship, 89. if relation unknown, 102. original promises, 89, 102, 105. if promise to debtor, 98. if promise to third person, 98 (note 54). if no principal, 93. if principal released, 95. to promise to pay out of debtor's property, 96. to promise of indemnity, 89, 90 (note 27). to promise to pay own debt, 101. by joint debtor, 97. _ if chief object is to acquire a benefit, 98. contract of del credere agent, 91. novation, 94. guaranty of transferred note, 101. agreement to submit to attachment, 85. agreement to procure a guarantor, 85. agreement that principal will give a mortgage, 86. guaranty of corporate dividends, 94 (note 42). fraudulent assertions, 92. agreement as to contribution, 93 to right of subrogation, 291. to attorney's contract, 87. promise reviving statute of limitations, 87. memorandum under, form and sufficiency, 106. time of making, 108, 111. requirements, 106. must contain terms, 106, 107. consideration, 108, 109. signature, 106, 109-111. seal, 109 (note 107). delivery, 111. oral evidence to explain, 107, 109. prevails, though oral contract enforceable where made, 112. 560 INDEX. [The figures refer to pages.] STATUTE OF FRAUDS— Cont'd. must be pleaded, 112. defense of, waiver, 85 (note 2), 88, 112, 310. surety cannot recover money paid on oral contract, 88. does not dispense with consideration, 83, 86. STATUTE OF LIMITATIONS, as a defense to surety, 143, 235, 239, 391. defense of, to principal, not available to surety, 235, 239. as a defense to principal against surety, 306, 313. as a defense to contribution, 340, 348. when begins to run, against creditor, 239. in favor of guarantor, 240. in favor of principal, 313. against co-surety, 348. as to installments, 349. |when prevented from running, part'payment, 241. new promise, 87, 240. fraud, 240. provision shortening time, is valid, 242. provision as to unwritten contracts applies in favor of prin- cipal and co-surety, 314, 349. waiver of, by surety, 309. by co-surety, 343 (note 126). cannot for co-surety, 342. as affecting enforcement of security, 239 (note 567). does not apply to right of subrogation, 291. STATUTORY BOND, see, also, "Official Bond." definition, 73. validity, 73, 74. STIPULATION, see "Condition." STOCKHOLDERS, see "Corporation." STRANGER, delivery by, 35, 36, 38. SUBCONTRACTORS, cannot hold sureties of contractor, 256 (note SUBORDINATES, see, also, "Deputy." surety not liable for acts of, 212 (note 405). SUBROGATION, of equitable origin, 277. advantages of, 286. conventional, 277, 278. INDEX. 561 [The figures refer to pages.] SUBROGATION— Cont'd. right to, not affected by holding security, 277. not affected by ignorance of existence of security, 276, 288, 351. extends to securities received at any time, 276, 287. rights obtained under not superior to those of holder of security, 277 (note 778), 290. extends to reimbursement only, 278. what subject to, 276. property, 283. attorney fees, 286. priority, 286, 287. rights of action, 283, 285. promissory note, 282, 283 (note '820). bond, 282, 283 (note 820). liens, 284. mortgage, 284. right to set aside fraudulent conveyance, 284. misapplied funds, 284. right to distrain, 284. .dividends from bankrupt's estate, 284. judgment, 290. what not subject to, 287. security held for other purposes, 283. deposit in bank, 283. debts excepted from operation of bankruptcy law, 287 (note 837). ■Who entitled to, 230. surety, 276, 277, 281. guarantor, though without request from principal, 280. accommodation parties, 280. joint debtors, 280. indorser, 280, 282. partner, 281. pledgor, 281. not allowed to volunteers, 280. by surety against creditor, 137, 276, 277. payment, 276, 278, 279. cannot be refused because principal owes other debts, 280. not lost by opposing assignment by principal, 289. to security given by co-surety, 282. not allowed when contrary to public policy, 287. by creditor against surety, 276, 289. lost by release of surety, 290. restricted to security for that articular debt, 290, 291. by co-sureties, 280, 350-352. against co-sureties, 282, 291. how affected by release of security, 226, 278, 288, 290. Childs' Stjbetyship— 36 562 INDEX. [The figures refer to pages.] SUBROGATION— Cont'd. not affected by statute of limitations, 291. lost by waiver or delay, 288, 291. procedure to enforce, 288. SUBSTITUTION, see "Renewal"; "Security"; "Relinquishment"; "Alteration"; "Novation" ; "Extension of Time." SUCCESSIVE BONDS, see, also, "Bonds." make sureties supplemental sureties, 6. SUIT, see "Action." SUMMARY REMEDY, 276. SUNDAY, see, also, "Illegality." bail may arrest principal on, 392. SUPPLEMENTAL SURETY, definition, 5. who is, 6, 251, 323. surety may become, 81. relation may be shown by oral evidence, 297, 324. what indicates intention to be, 322. liable to creditor, 134 (note 4). discharged by release of security, 251. surety a principal as to, 251. entitled to indemnity from principal and surety, 6, 302. defense against, of payment by principal, 312. when not co-surety,. 320, 322. not liable to contribution, 6. entitled to subrogation, 281. SUPPOSITION, see, also, "Presumption" ; "Intention" ; "Fraud." that another would sign is not a condition, 322. SURETY, see, also, "Bond"; "Official Bond"; "Bail"; "Suretyship"; "Guarantor." definition, 1. pronunciation, 2 (note 1). distinguished from guarantor, distinguished from indorser, 10. distinguished from insurer, 12. indorser and drawer are, 354. See, also, "Indorser" ; "Drawer." accommodation party is, 364. See, also, "Acoommodation Par- ties." Joint debtors are, 19. See, also, "Joint." INDEX. 563 [The figures refer to pases.] SURETY— Cont'd. mortgagor may be, 18. See, also, "Assumption"; "Mortgagor." grantee may be, 16, 19. See, also, "Grantor and Grantee." partner may be, 17. See, also, "Partners." pledgor may be, 18. See, also, "Pledgor." •when stockholders are, for corporation, 17 (note 59). when insurer is, 19 (note 66). when corporation may be, 61. when bank may be, 62. attorney or judge may be, 63. __ when supplemental surety, 6 (note 17), 81, 251, 302. Seeralso, — "Supplemental Surety." is liable as principal to supplemental surety, 251. can become principal, 81. presumed to know the law, 123, 185, 250, 308. form of bond to protect, 403. signature of, necessity, 45, 46. See, also, "Signature." can qualify liability, 47, 269. See, also, "Limitation." conditions, may be annexed, see "Condition." agent of, see "Agent." ratification by, 42 (note 75), 77, 110, 299. See, also, "Ratification." cannot be agent for creditor, 110. delivery by one, binds all, 39 (note 66). See, also, "Delivery." can revoke contract prior to acceptance, 34. relation of, knowledge of, 148, 151. proof of, 148-151. can be shown in instrument, 47. presumed to contract with reference to statutes, by-laws, and constitution, 189, 190. favored, 114, 124, 186. See, also, "Construction." cannot contradict contract by oral evidence, 262. not liable though words omitted inadvertently, 212. reformation of contract of, 114, 116. See, also, "Reformation." beginning of liability of, 210, 219. duration of liability of, 131 (note 73), 191, 193. termination of liability of, by expiration of contract of, 186. annual ofllce, 119, 186, 189, 190. See, also, "Annual OfBce." resignation or removal of principal, 188. expiration of charter of corporate principal; 186' (note 288). expiration of partnership of principals, 186. expiration of contract secured, 186, 187. accomplishment of particular work, 187. death, 194, 205, 207. See, also, "Death." change, in number of creditors or obligees, 205. See, also, "Change." in number of principals, 209. new bond, 199. by notice, 191-194, 208. 564 INDEX. [The figures refer to pages.] SURETY— Cont'd. by ejectment of tenant, 219. by incorporation of obligees, 257. by default of principal, known to obligee, 192, 202. known to agent of obligee, 204. obligee not required to examine principal's accounts, 203. not entitled to notice, of obligee's suspicions, 204. principal's delinquencies or failure to remit promptly, 204. when discharged by principal's failure to make reports, 168.. severally liable to creditor, 134, 135. not by subsequent statute, 124 (note 48). liability of, for entire debt, 4, 47. as principal, 123, 133. on severable contract, 216. See, also, "Divisible Contract." as measured by that of principal, 47, 134. not discharged by creditor's failure to file claim against deceased principal's estate, 239. property of, may be levied on first, 147. defense by. not affected by receipt of consideration for contract, 134. not affected by receipt of collateral security, 31 (note 34). not affected by judgment, 146, 227, 233. cannot be made if indemnified, 171, 184, 251. if rights reserved against, 171, 183, 251. cannot be raised for first time on appeal, 186 (note 286). burden on, to show, 176 (note 224), 233 (note 530). incapacity, see "Incapacity." oral contract, see "Statute of Frauds." shown by creditor giving credit to principal, 105. void obligation, bond lacking penalty or obligee, 120. not because names omitted from body of bond, 46. not because principal did not sign, 43. not because principal's signature unauthorized, 44 (note 83). none, because he signed without principal's knowledge, 45. presumption as to request by principal to sign, 45 (note 89). none, that other signatures are forged, 76. none, because no stamp, 47 (note 100). none, because bond not acknowledged, 75. none, because bond not approved, 31. none, that bond taken by a de facto officer, 76. none, that principal is a defacto officer, 263. fraud, see "Fraud." none, that instrument not read, 70. duress, see "Duress." illegality, see "Illegality" ; "Usury." want of consideration, 48, 51. See, also, "Consideration." contract made after delivery of instrument, 51. INDEX. 565 [The figures refer to pages.] SURETY— Cont'd. discharge of principal, 232, 233, 235. alteration, see "Alteration." extension of time to principal, see "Extension of Time." relinquishment or loss of security by creditor, see "Security." creditor cannot be compelled to sell collateral security before maturity, 229. creditor must account for proceeds of principal's prop- erty, 243. nonperformance of conditions, see "Condition" ; "Perform- ance." performance, see "Performance." default, see "Default." payment, see "Payment" release, see "Release." by non-compliance with notice to sue principal, see "No- tice." impossibility of performance, 233 (note 530), 234. act of creditor or obligee, 210, 217, 219, 397, 398. intermarriage of creditor and principal, 233. merger of claims in creditor, 234. creditor promising to look to principal, 265. induced to believe debt paid, 218, 243 (note 592), 265, 266. none, if agreement between creditor and principal is execu- 1 tory, 233 (note 530). bankruptcy and insolvency, see "Bankruptcy." statute of limitations, see "Statute of Limitations." none, that no notice given of principal's default, see "No- tice." none, of delay by creditor, 133, 140, 147, 229. none, that no demand made, 133, 268. waiver of, see, "Waiver." liability of, not revived by taking security from principal, 185. summary remedy against, 276. when can require creditor to proceed against principal, 133, 193, 194. to whom liable, 256. cannot enforce official bond in his favor, 257. to holder of negotiable Instrument for value without notice of defenses, 185. on bond at time of default, is liable, 192. may defend suit against principal, 275. of deputy of principal, when liable to, 257. liable for lesser of two named penalties, 125. whether judgment against principal is evidence against, 275. jevidence against, admissions of principal, 274. See, also, "Evi- dence." set off, of principal's claim by, 272. See, also, "Counterclaim." 566 INDEX. [The figures refer to pages.] SDKBTT— Cont'd. extent of liability, 266-270. mitigation of damages, 273. estoppel of, see, "Estopel." cannot recover money paid creditor with full knowledge of facts, 88, 234 (note 535), 243 (note 598), 256. can recover money paid creditor in ignorance of facts, 227. can recover his pledge to creditor on discovery of fraud, 255, •-subrogation against creditor, see "Subrogation." must account to creditor for proceeds of security, 290. creditor's right of subrogation against, see "Subrogation." right of, to take assignment of securities from creditor, 278, 286. after paying principal's note, cannot put it into circulation against principal, 305 (note 85). not liable to principal, 365. is creditor of principal from time contract, 295. property of, bought by principal at execution sale, 294. payment by, fixes amount recoverable from principal, 294. rights of, against principal, before payment, 295. -entitled to indemnity from principal, 299, 303, 366. See, also, "Indemnity." becoming administrator of principal, can reimburse himself, 296 (note 29). can prove claim against bankrupt principal, 237, 293 (note 4). liable to supplemental surety, 302. promises of indemnity from principal to, 292-294. rights against principal not affected by holding security, 292, 294. cannot sue principal before maturity of debt, 299. suit by, against principal, on original instrument, 303, 305. enforcement of judgment against principal, 305. can recover from principal without notice or demand, 303. when can join with others in suit against principal, 303, 304. can recover from any principal, 292, 299. can recover from deceased principal's estate, though claim barred as to creditor, 309 (note 111), for one principal cannot recover from another, 300. defense against, by principal. none, that principal did not sign, 43, 294. no request to, by principal, to sign, 306. request to, by one principal, sufficient, 307. implied, 307. lack of payment, 298. none, that payment involuntary, 300. must show that note taken in payment, 300. imprisonment of, when right to indemnity from principal, 301. payment in installments, 301. INDEX. 567 (The figures refer to pages.] SURETY — Cont'd. ^_^==" payment by contribution, 303. none, that payment made without permission of, or request from, principal, 292, 297. none, that payment made without demand or suit, 298, 328. none, that principal not notified of suit, 298. may pay before trial, 328 (note 45). may pay beforegxecution issued, 328 (note 45). can recover-ffomprincipal though original contract oral, 88. cannot waive principals-real defenses, 309, 310. counterclaim by npWcipal against, 296. agreement byrtogive up right of indemnity from principal, strict- ly construed, 294. can recover from principal if released by creditor with reserva- tion of rights, 251. amount recoverable by, from principal, 305. cannot speculate on principal, 278, 314, 315.| costs, 305, 316. counterclaim allowed against creditor, 315. cannot enforce agreement by principal that amount paid to creditor should be conclusive as to liability, 315. entitled to security, though ignorant, 319. application of security, 318, 319, 296 (note 29). surrender by, of security to principal, 276, 290. when presumed to be a co-surety, 321. death of, no defense to contribution, 349. See, also, "Death." SURETY COMPANY, see "Corporate Surety." SURETYSHIP, see, also, "Surety." definition, 1. classification, 14. personal, 14. real, 14. voluntary, 14. involuntary, 14. by corporation, see "Corporate Suretyship." must arise from contract, 14, 122. arises from mortgage, pledge, guaranty, indorsement, 3. contract of, essentials, 24. must be evidenced in writing, 83, 84. formality, 44. takes effect on delivery, 219. not retroactive, 210. presumption as to time of making, 54. construction of, 114. See, also, "Construction." imports capacity of principal, 235. 568 INDEX. [The figures refer to pages.] SURETYSHIP— Cont'd. who can enforce, 256. after change in firm, 259. burden on plaintiff to allege and prove breach of, 273, 274. SURRENDER, see, also, "Relinquishment" ; "Release" ; "Security." of lease, guarantor's liability for rent due, not affected, 250. of principal, by bail, 391-393, 400. SUSPICIONS, obligee need not report to surety, 120. T TAXES, on collateral security, creditor not obliged to pay, 230. TECHNICALITIES, see "Error" ; "Construction." in memorandum required by statute of frauds, 108. TENANT, see "Lease"; "Rent." TENDER, requisites of, 248. of property, not sufficient to tell where it is, 382. discharges surety, 242, 247, 382. need not be kept good, 242, 247. TERM, see, also, "Construction"; "Official Bond"; "Bail." in contract, court will not supply, 120. See, also, "Mistake"; "Reformation." recital qualifies condition, 119. of court, what is appearance at, which will discharge ball, 394. TERMINATION, see "Defenses" ; "Discharge" ; "Guarantor" ; "Guaranty" ; "Surety." TERRITORY, see "Place"; "Alteration"; "Jurisdiction." TEST, as to primary liability, 82. THEFT, see, also, "Loss"; "Funds"; "Default." when sureties liable for loss of funds by, 374. TIME, see, also, "Extension of Time." of making contract, presumption, 54, 108. INDEX. 569 [The figures refer to pages.] TIME— Cont'd. must be definite, to constitute consideration, 56. to discharge by an extension of, 171, 182. what is definite, 56. of beginning of liability, 210. expiration of, for which surety bound himself, 186. limit as to, effect in guaranty, 131. performance as to, 213, 394. See, also, "Performance." conditions must be performed in, 222. See, also, "Condition." alteration as to, 160, 161, 167, 169. See, also, "Alteration." of relinquishment of security, is immaterial, 345. See, also, "Re- linquishment." of making of principal's implied promise to indemnify surety, 292, 293. damages not recoverable for loss of, In procuring dissolution of injunction, 384. TORT, see, also, "Statute of Frauds" ; "Default" ; "Building Con- tract" ; "Act of Creditor or Obligee." obligee jointly guilty of, with principal, cannot recover on bond, 217 (note 441). TRANSFER, see, also, "Conveyance"; "Indorsement." of security to third person by creditor, not discharge surety, 231. TRAVELLING EXPENSES, see "Expenses"; "Damages." TREASURER. see "Oflicial Bond"; "Officer"; "Principal"; "Funds? TRIAL, see "Action"; "Evidence"; "Pleading"; "Bail"; "Question." TRUSTEE, see, also, "Security" ; "Subrogation" ; "Fraud." co-surety is, of principal's property, 341 (note 114), 351. not as to property received after adjustment of rights, 352. not of property received from a stranger, 353. u ULTRA VIRES, see, also, "Corporation"; "Incapacity." definition, 61. by surety is a defense, 59, 61. none, as against a purchaser of a negotiable instrument for value, without notice of, 63. as a defense to contribution, 340. 570 INDEX. [The figures refer to pages.] ULTRA VIRES— Cont'd. of principal, not a defense by surety against creditor, 235, 237. is a defense against surety, 307. UNAUTHORIZED ACTS, see "Agent"; "Signatures"; "Consent"; "Ratification"; "De- fault." USAGE, as governing construction, 117. consent of surety may be implied from, 155 (note 104). USURY, see, also, "Interest" ; "Illegality" ; "Negotiable Instrument." when consideration for an extension, 181. as a defense, 72. against indemnity, 311. payment of, may be voluntary, 308. V VALIDITY, see, also, "Construction." of contract, determined by place of performance, 80. VALUE, see, also, "Damages." of property taken in payment, how ascertained, 315. depreciated currency, 315. fixes amount of recovery, 331. of property replevied, amount stated in bond is evidence of, 386 (note 64). of security relinquished, 231, 344. of time, sureties on attachment bond are liable for, 383. VENDOR AND VENDEE, see "Grantor and Grantee" ; "Assumption.'' VENUE, see, also, "Judicial Bonds." change of, effect on liability of bail, 396. grant of order for, will not affect bail, 396 (note 63). VOLUNTARY BOND, see, also, "Bond." definition, 73. validity, 73, 75. VOLUNTARY PAYMENT, see "Payment." VOLUNTARY SURETYSHIP, see, also, "Suretyship." definition, 14. INDEX. 571 [The figures refer to pages.] w WAGER, see "Illegality." WAGES, see, also, "Compensation." of ward, sureties for guardian not liable for, 379 (note 15). WAIVER, see, also, "Consent" ; "Estoppel" ; "Delay." by surety, of forgery of signature, 78 (note 249). of notice of acceptance of offer, 31. by guarantor, 133, 146. of notice of default, what constitutes, 146 (notes 62 and 63). of defense, by surety, 153, 154, 256. what constitutes, 153, 154 (note 103), 157, 160, 185, 256. if personal, payment not voluntary, 309, 343. if real, surety cannot waive for principal, 309, 310. of infancy, 310. of fraud, 71. of statute of frauds, 85, 88, 112, 310. of statute of limitations, 240, 241, 309. of bankruptcy, 238. of extension of time, 185. of conditions, 165, 221, 310. See, also, "Condition." of provisions for sole benefit of obligee, is not an alteration, 165. of legal rights, by surety, 264. is consideration for an extension, 182. of delivery in forthcoming bond, 382 (note 38). of right of subrogation, 288. by creditor, 291. by creditor, by delay on discovering principal's fraud, 176 (note 230), 178. of written notice to sue principal, what constitutes, 197. WANT OF CONSIDERATION, see "Consideration." WAR, see "Alien Enemy." WARD, see "Guardian." WARRANTY, see, also, "Indorsement"; "Indorser." distinguished from guaranty, 13. by drawer and indorser as to acceptance, 358. of indorser -without recourse, 357. 572 INDEX. [The figures refer to pages.] WIFE, see, also, "Coverture" ; "Married Women" ; "Incapacity." is not agent of husband, 195 (note 321), 198. is stranger to husband, 352. creditor not subrogated to property given by, to surety, 291. is surety, by pledging property, 18 (note 64). notice given by record of title in her name, 151. when cannot recover indemnity from husband, 307. WITNESS, see, also, "Evidence." surety becoming, does not consent to action taken, 155 (note 107). addition of, is immaterial alteration, 170 (note 202). WORDS, meaning, 114, 117. construed against party using, 114, 121. See, also, "Construction." omitted by mistake, surety not liable, 212. See, also, "Mistake." WRITING, see "Statute of Frauds" ; "Evidence" ; "Construction." Y TEAR, see "Annual Office" ; "Time" ; "Term." z ZEAL, oral contract not taken out of statute of frauds because promisor is actuated by, 99 (note 55). VIST POBLISHIHa CO. , PBIKTBBB, ST. PAUL, Mnof. The Hornbook Series Includes treatises on all the principal subjects of the law. The special features of these books are: L A succinct statement of the leading principles and rules of law, in numbered paragraphs running through the work, printed in black- letter. This gives a bird's-eye view of the whole subject, and serves admirably for a quick review and refreshing of the mind. 2. A more extended commentary following each paragraph, elucidating the principles, showing exceptions, application, relation of differ- ent principles, etc. This forms the text proper of the book. 3. Notes and authorities, given in footnotes. The cases cited are selected for their recognized authority and for their lateness. "The text-book which contains the bed-rock of the law and furnishes a ready lead to the cases is an indispensable working tool. This the Hornbooks furnish. They ought to be in every lawyer's office." — C. A. Korbly, Indianapolis, Ind. "To be able to turn to a full and clear presentation of a rule or principle is almost indispensable to a busy lawyer, and the Hornbook Series goes very far in giving just that help." —Bishop, Bowen & Fleming, Des Moines, Iowa. Regular octavo law book size, but published at $3.75 a volume postpaid. Bound in American Law Buckram. WEST PUBLISHING CO., St. Paul, Minn. 04767a (1) ~~ " ($0e §omfioo6 ^mes.) (# 3E)anb0ooft of Cpe Ban> of (giffe ano (ttofee, Q3g (prof. Cfotrfee #. (Jlorfon. THIRD EDITION: By FRANCIS B. Tlf FANY. TABLE OF CONTENTS. Chapter I. OP NEGOTIABILITY SO PAR AS IT RE- LATES TO BILLS AND NOTES : Cover- ing the origin, purpose, and indicia of nego- tiability ? distinction between negotiability and assignability, and payment by negotia- ble instrument. Chapter II. OP NEGOTIABLE BILLS AND NOTES, AND THEIR FORMAL AND ESSEN- TIAL REQUISITES : Covering definition, form, and essentials, the order, the promise, specification of parties, capacity of parties, delivery, date, value received, and days of grace. Chapter III. ACCEPTANCE OP BILLS OP EXCHANGE : Covering the various kinds of acceptance, and the rules relating thereto. Chapter IV. INDORSEMENT : Defining and explaining the various kinds of indorsements, and showing their requisites and effect. Chapter V. OF THE NATURE OP THE LIABILITIES OP THE PARTIES : Covering liability of maker, acceptor, drawer, indorser, rights and liabilities of accommodation and accommo- dated parties, estoppel and warranties, and -damages for breach. Chapter VI. TRANSFER : Covering definition, validity, and various methods of transfer, and status of overdue paper. Chapter VII. DEFENSES AS AGAINST PURCHASER FOR VALUE WITHOUT NOTICE : Cov- ering the subject generally and fully. Chapter VIII. THE PURCHASER FOR VALUE WITH- OUT NOTICE: Explaining who is, and discussing consideration, good faith, notice, overdue paper, presumption, and burden of proof, etc. Chapter IX. OF PRESENTMENT AND NOTICE OP DIS- HONOR : Covering presentment for accept- ance and for payment, dishonor, protest, no- tice of dishonor, waiver, etc. Chapter X. CHECKS : Covering generally the law relating to checks. APPENDIX: The Negotiable Instruments Law. 1 VOL 553 PAGES $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. CM9-18 (2) (£9e §ornfioo8 ^eriee.) ♦ ♦ dtV ♦ ♦ gant>6oo£ of Criminal &m> Author of a "Handbook of the Law of Contracts." SECOND EDITION: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. CHAPTER I. DEFINITION OF CRIME: The nature of crime and ground of punishment. CHAPTER II. CRIMINAL LAW : How the criminal law la pre- scribed; the common law: statutes, and the powers of state and federal legislatures. CHAPTER III. CLASSIFICATION OF CRIMES: As treason, fel- onies, misdemeanors, etc ; merger of offenses. CHAPTER IV. THE MENTAL ELEMENT IN CRIME: Con- sidering the will, intention, motive, and crim- inal intention or malice. CHAPTER V. PERSONS CAPABLE OF COMMITTING CRIME: Covering also exemption from responsibility, and discussing infancy, insanity, drunkenness, ignorance or mistake of law or of fact, provo- cation, necessity and compulsion, married wo- men and corporations. CHAPTER VI. PARTIES CONCERNED: Covering effect of joining in criminal purpose, principles in first and second degrees, accessories before and after the fact, terms " aider and abettor " and "accomplice." CHAPTER VII, THE OVERT ACT: Covering also attempts, so- licitation and conspiracy. CHAPTER VIII. OFFENSES AGAINST THE PERSON: Cover- ing homicide, murder, and manslaughter, with consideration of the different degrees, acci- dent, self-defense, etc. CHAPTER IX. OFFENBES AGAINST THE PERSON (Contin- ued) : Covering abortion, mayhem, rape, sod- omy, seduction, assaults, false imprisonment, kidnapping, abduction. CHAPTER X. OFFENSES AGAINST THE HABITATION: Covering arson and burglary. CHAPTER XI. OFFENSES AGAINST PROPERTY: Covering larceny, embezzlement, cheating at common law and by false pretenses, robbery, receiving stolen goods, malicious mischief, forgery, etc. CHAPTER XII. OFFENSES AGAINST THE PUBLIC HEALTH, MORALS, ETC. : Covering nuisances in gen- eral, bigamy, polygamy, adultery, fornication, lewdness, etc. CHAPTER XIIL OFFENSES AGAINST PUBLIC JUSTICE AND AUTHORITY: Covering barretry, obstruct- ing justice, embracery, prison breach, mispri- sion of felony, compounding crime, perjury, bribery, misconduct in office, etc. CHAPTER XIV. OFFENSES AGAINST THE PUBLIC PEACE Covering dueling, unlawful assembly, riot, affray, forcible entry and detainer, libels on private persons, etc. CHAPTER XV. , OFFENSES AGAINST THE GOVERNMENT: Covering treason and misprision of treason. CHAPTER XVI. OFFENSES AGAINST THE LAW OF NA- TIONS: As piracy. CHAPTER XVH. JURISDICTION: Covering territorial limits of states and United States, jurisdiction as deter- mined by locality, federal courts and the com- mon law, jurisdiction conferred by congress, persons subject to our laws, etc. CHAPTER XVIII. FORMER JEOPARDY: In general. 1 VOL. 450 PAGES. $3.75 DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (3) (€$e J^ornBooft Jfcriee.) ($ §)anb0ooft of Zfyt Bait) of Confracfa, Author of a " Handbook of Criminal Law." SECOND EDITION: By FRANCIS B. TIFFANY. CHAPTER I. CONTRACT IN GENERAL: Covering its deft- nition, nature, and requisites, and discussing agreement, obligation, promise, void, voidable, and unenforceable agreements, and the essen- tials of contract, etc. CHAPTER II. OFFER AND ACCEPTANCE: Covering im- plied contracts, necessity for communication and acceptance, character, mode, place, time, and effect of acceptance, revocation, and lapse of offer, etc. CHAPTER HI. CLASSIFICATION OF CONTRACTS: Cover- ing contracts of record and contracts under seal, and their characteristics. CHAPTER IV. BEQUIREMENT OF WRITING: Covering also statute of frauds, and discussing promise by executor, promise to answer for another, agreements in consideration of marriage and in relation to land, and agreements not to be performed within a year, sufficiency of memo- randum, etc. CHAPTER V. CONSIDERATION: Covering the necessity for consideration, its adequacy, reality, and legal- ity, failure of consideration, etc CHAPTER VI. CAPACITY OF PARTIES: Covering political and professional status, infants, insane and drunken persons, married women, and corpo- rations. CHAPTER VXL REALITY OF CONSENT: Covering mistake, misrepresentation, fraud, duress, and undue \ influence. CHAPTER VIII. LEGALITY OF OBJECT: Covering unlawful agreements in general, agreements in viola- tion of positive law and those contrary to pub- lic policy, effect of illegality, conflict of laws, etc CHAPTER IX. OPERATION OF CONTRACT: Covering the limits of the contractual relation, assignment of contracts, whether by act of parties or by operation of law, joint and several contracts, etc CHAPTER X. INTERPRETATION OF CONTRACT: Cover- ing the rules relating to evidence, proof of document, rules of construction, penalties and liquidated damages, etc CHAPTER XI. DISCHARGE OF CONTRACT: Covering dis- charge by agreement, by performance, by breach, by impossibility of performance, by operation of law, etc, and remedies on breach of contract. CHAPTER XII. AGENCY: Covering the creation of the relation, its effect and determination, the capacity, rights, and liabilities of the parties, etc CHAPTER XKTI. QUASI CONTRACT: Covering obligations cre- ated bv law upon which an action ex contractu will lie without proof of contract in fact, in- cluding judgments, obligations imposed by statute, acts of parties, etc 1 VOL., 693 PAGES, $3.75 DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (4) (£@e fjomfiooS JJmee.) $ f)ftnfc0ooft of Common *£an> (pfeaMn^ (&J? ^njamin %. #$tjmtdn. SECOND EDITION. TABLE OF CONTENTS. Chapter I. FORMS OS" ACTION: Covering the nature and classification of actions, real, personal, and mixed actions, assumpsit, special and general, debt, covenant, account or account rendered. Chapter II. FORMS OF ACTION (Continued): Covering trespass, trover, case, detinue, replevin, eject- ment, writ of entry, forcible entry and detain- er, eta Chapter III. THE PARTIES TO ACTIONS : Covering actions in form ex contractu and ex delicto, and the consequences of misjoinder or nonjoinder of partios plaintiff or defendant. Chapter IV. THE PROCEEDINGS IN AN ACTION: Cover- ing process, the summons, writ of attachment, appearance, the declaration, demurrer, and va- rious pleas, amendments, etc., the verdict, and proceedings after the verdict, the judgment, and proceedings thereafter to the writ of exe- cution. Chapter V. THE DECLARATION: Statement of cause of action In general; form of declaration; es- sential averments of declaration in special as- sumpsit or on common counts, in debt, cove- nant, account, case, detinue, trover, trespass, replevin, ejectment, and trespass for mesne profits after ejectment. Chapter "VX THE PRODUCTION OF THE ISSUE: Discuss- ing the rules, and covering the demurrer, the pleadings, the traverse, forms of the general issue and of the special traverse, protesta- tions, exceptions, issues in fact and law, etc. , Chapter VZL MATERIALITY IN PLEADING: Covering the general rule, variance, limitation of traverse, etc. Chapter VIII. SINGLENESS OR UNITY IN PLEADING: Cov- ering the rules in general, duplicity, immate- rial matter, inducement, protestation, conse- quences of duplicity and of misjoinder, plea and demurrer, eta Chapter EC CERTAINTY IN PLEADING: Covering too venue, time, quantity, quality, and value, names of persons, showing title and author- ity, with subordinate rules, and special re- quirements in different stages. Chapter X. CONSISTENCY AND SIMPLICITY IN PLEAD- ING : Covering insensibility, repugnancy, am- biguity, argumentative pleadings, pleadings in alternative, positive statements, legal effect, conformance to precedent, commencement and conclusion. . Chapter XL DIRECTNESS AND BREVITY IN PLEADING: Covering the rules generally, departure, pleas amounting to general issue, surplusage, eta Chapter XH. MISCELLANEOUS RULES: Covering con formance to process, alleging damages and production of suit, order of pleading, defense, plea in abatement, dilatory pleas, eta. APPENDIX: Forms. This book embodies such of the rules and principles of Common-Law Pleading as are still recognized and applied in this country. A knowledge of the common-law system ia of advantage, if indeed, it is not essential, to a thorough understanding of both code and equity pleading. ONE VOLUME, 615 PAGES, $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. ($0e fornBooft getite.) (fg $). Camp0eff QSfacft, Author of Black's Law Dictionary, Treatises on Judgments, Tax Titles, etc. J^cono (Botfion. TABLE OF CONTENTS. Chapter I. DEFINITIONS AND GENERAL PRINCIPLES: Considering the meaning of "Constitutional" and "Unconstitutional;" written and unwrit- ten constitutions, bills of rights, right of revo- lution, political and personal responsibilities, etc. Chapter II. THE UNITED STATES AND THE STATES: Considering the nature of the American Union, sovereignty and rights of the states and of the people, form of government, the Federal Constitution, etc Chapter ITX ESTABLISHMENT AND AMENDMENT OF CONSTITUTIONS: Containing an historical introduction, and considering the establish- ment and amendment of the Federal Constitu- tion and ef State Constitutions. Chapter IV. CONSTRUCTION AND INTERPRETATION OF CONSTITUTIONS: Considering the office and duty of the judiciary in this direction. Chapter V. THE THREE DEPARTMENTS OF GOVERN- MENT : Considering the division, limitations on the departments, political and judicial questions, etc. Chapter VI. THE FEDERAL EXECUTIVE: Considering the election, qualifications, impeachment, compensation and independence of the Presi- dent, his oath of office, veto power, pardoning and military power, and treaty-making power ; vacancy in office! the cabinet, appointments to office, presidential messages, diplomatic re- lations, authority to convene and adjourn con- gress, execute the laws, etc. Chapter VII. FEDERAL JURISDICTION: Considering the jurisdiction, powers and procedure of Federal courts, removal of causes, the United States and the states as parties, etc Chapter VIII. THE POWERS OF CONGRESS: Considering the constitution, organization and government of congress, its powers, and the limitations thereon. Chapter IX. INTERSTATE LAW, as determined by the Con- stitution : Considering its general principles, the privileges of citizens, interstate extradi- tion, public acts and judicial proceedings, etc. Chapter X. REPUBLICAN GOVERNMENT GUARANTIED. Chapter XI. EXECUTIVE POWER IN THE STATE3. Chapter XII. JUDICIAL POWERS IN THE STATES: Con- sidering the system of courts, judges, juris- diction, process and procedure. Chapter XIII. LEGISLATIVE POWER IN THE STATES : Con- sidering the organization and government of legislature, limitation and delegation of legis- lative powers, enactment of laws, etc Chapter XIV. THE POLICE POWER: Considering the police power as vested inj:ongress and in the states, and its scope and limitations. Chapter XV. THE POWER OF TAXATION: Considering the purposes of taxation, independence of Federal and State governments, limitations on power, taxation and representation, etc. Chapter XVI. THE RIGHT OF EMINENT DOMAIN: Defini- tion and nature of the power, constitutional provisions, authority to exercise, public pur- pose, appropriation to new uses, etc. Chapter XVH. MUNICIPAL CORPORATIONS: The nature, control, powers, officers and by-laws of mu- nicipal corporations, etc Chapter XVIII. CIVIL RIGHTS, AND THEm PROTECTION BY THE CONSTITUTION: Considering rights in general, liberty, due process of law. vested rights, trial by jury, etc Chapter XIX. POLITICAL AND PUBLIC RIGHTS: Consider- ing citizenship, right of suffrage, freedom of speech, right of assembly and petition, etc Chapter XX. CONSTITUTIONAL GUARANTIES IN CRIM- INAL CASES: Considering trial by jury, rights of accused, jeopardy, bail, ex post facto . laws, habeas corpus, eto. Chapter XXL LAWS IMPAIRING THE OBLIGATION OF CONTRACTS: Considering the ' obligation and the impairment of the contract, power of legislature to contract, remedies on contracts. etc Chapter XXIL RETROACTIVE LAWS: Considering the validity of retroactive statutes, curative statutes, etc 1 VOL., 740 PAGES, $3.75, DELIVERED. WEST PUBLISHING COMPANY, St. Paul, Minn. C1596 (6) (£0e gomBoog ^eriec.) $ f)p T»m. £. £far6, J(r., @uf0or of ft "gftnofiooS of Criminftf fefttt," ftno ft fjftnofioofi of Confrftcfe." TABLE OF CONTENTS. Chapter I. JURISDICTION: Covering courts of criminal ju- risdiction and venue. Chapter II. APPREHENSION OF PERSONS AND PROP- ERTY : Covering arrest in general, warrants, extradition, searches and seizures of property, and taking property from prisoner. Chapter IH. PRELIMINARY EXAMINATION, BAIL. AND COMMITMENT : Covering right to release on bail, habeas corpus, the recognizance, release of sureties, etc. Chapter IV. MODE OP ACCUSATION: Covering the indict- ment and presentment, information, coroner's inquisition, time of prosecution, and nolle prosequi, etc. Chapter V. PLEADING — THE ACCUSATION: Covering form of indictment in general, the commence- ment, and the statement of offense and descrip- tion of defendant. Chapter VI. ▼LEADING — THE ACCUSATION (Continued): Covering allegation of intent, knowledge, etc. ; technical terms ; second or third offense, set- ' ting forth writings; description of property and persons; ownership. Chapter VII. PLEADING— THE ACCUSATION (Continued): Covering statement of time and place. Chapter VIII. PLEADING— THE ACCUSATION (Continued)! Covering indictments on statutes. Chapter IX. PLEADING— THE ACCUSATION (Continued): Covering duplicity, joinder of counts and par- ties, election, conclusion of indictment, amend- ment, aider by verdict, etc. Chapter X. PLEADING AND PROOF: Covering varianc and conviction of minor and higher offense. Chapter XI. MOTION TO QUASH: Covering also arraign- ment, demurrer, and pleas of defendant. Chapter XII. TRIAL AND VERDICT: Coveringtimeandplace of trial, custody and presence of defendant, bill of particulars, the counsel, judge and jury, arguments and instructions, etc. Chapter XIII. PROCEEDINGS AFTER VERDICT: Covering motion in arrest of judgment, sentence, new trial, writ of error, etc. Chapter XIV. EVIDENCE: Covering facts fn issue, motive, res gestae, other crimes, declarations, confes- •ions, character, burden of proof, witnesse*, etc. Chapter XV. HABEAS CORPUS. I VOL. 658 PACES. $3.76, DELIVERED. WEST PUBLISHING CO., St Paul, Minn. (8) gfc jfornBooft ^eriee. gan&Booft of f Je £ of ^, Advocate, qgff Cap*- &*t»in $♦ Boo{£ of Z§t Ban) of £orte* <£bf»in $. 3fas$arb, (gt. $*., %%. (g„ Professor of the Law of Torts in the Minnesota University Law School. TABLE OF CONTENTS. PART I.— IN GENERAL. Chapter I. GENERAL NATURE OF TORTS : Covering the law adjective and law substantive, distinctions between torts and crimes, common-law obliga- tions and remedies, how and why liability at- taches for torts, the mental element, connec- tion as cause, damnum and injuria, common- law, contract and statutory duties, etc. Chapter II. VARIATIONS IN THE NORMAL RIGHT TO TO SUE: Covering exemptions based on privilege of actor, as public acts of states, of judicial and executive officers, etc., and private acts authorized by statute or common law, variations based on status or conduct of plain- tiff, etc. Chapter III. LIABILITY FOR TORTB COMMITTED BY OR WITH OTHERS: Covering, liability by con- cert in action or joint torts, and liability by relationship, as husband and wife, landlord and tenant, master and servant, partners, etc. Chapter IV. DISCHARGE AND LIMITATION OF LIABILI- ITY FOR TORTS: Covering discharge or limitation by voluntary act of party and by operation of law. Chapter V. REMEDIES: Covering statutory and common- law remedies, judicial and extrajudicial reme- dies, damages, etc. FART II.— SPECIFIC WRONGS. Chapter VI. WRONGS AFFECTING SAFETY AND FREE- DOM OF PERSONS : Covering false impris- onment, assault and battery, and the defenses, as justification and mitigation. Chapter VII. INJURIES IN FAMILY RELATIONS: Cover- ing the family at common law, master and servant, parent and child, husband and wife. Chapter VIII. WRONGS AFFECTING REPUTATION: Cover- ing libel, slander, and slander of title, together with the defenses. Chapter IX. MALICIOUS WRONGS: Covering deceit, mali- cious prosecution, abuse of process, interfer- ence with contract, conspiracy, etc. Chapter X. WRONGS TO POSSESSION AND PROPERTY: Covering the nature of possession and its ob- jects, trespass, waste, conversion, etc. Chapter XI. . NUISANCE : Covering kinds of nuisance, as pub- lic, private, and mixed, continuing and legal- ized, parties to proceedings against, remedies, etc Chapter XII. NEGLIGENCE : Covering the duty to exercise care, what is commensurate care, common-law, contract and statutory duties, damages, con- tributory negligence, etc. Chapter XuX MASTER AND SERVANT: Covering master's liability to servant for negligence, master's duty to servant, assumption of risk by serv- ant, various kinds of risks, fellow servants, vice principals, etc Chapter XIV. COMMON CARRIERS: Covering the subject generally. 2 VOLS. 1,328 PAGES. $7.50, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. (id $$e fgornBooft §&xitB. QJ g St. Paul, Minn. (fc0e fomfiocft geriee.) $ 3E)anb6ooft of (§ Carriers* TJ?m. (gf. gafc. TABLE OF CONTENTS. Chapter I. IN GENERAL: Covering definition, and gen- eral principles common to all bailments; classification of bailments. Chapter II. BAILMENTS FOR SOLE BENEFIT OF BAILOR: Covering depositum and man- datum, creation, rights and liabilities of parties, termination, etc. Chapter III. BAILMENTS FOR BAILEE'S SOLE BEN- EFIT: Commodatum, creation, rights and liabilities of parties, termination, etc. Chapter IV. BAILMENTS FOR MUTUAL BENEFIT- PLEDGES: Covering definition of pledge, creation, title of pledgor, rights and liabil- ities of parties before ajid after default, ter- mination, etc Chapter V. BAILMENTS FOR MUTUAL BENEFIT- HIRING: Locatio or hiring defined; estab- lishment of relation) rights and liabilities of parties; hiring of things for use; hire of labor and services; warehousemen; wharf- ingers; safe-deposit companies; factors, etc.; termination of relation, etc. Chapter VI. INNKEEPERS: Innkeeper defined; who are guests; commencement of relation; duty to receive guest; liability for guests' goods; lien; termination of relation; liability as ordinary bailee, etc. Chapter VII. CARRIERS OF GOODS: Common carriers, essential characteristics; when liability at- taches; discrimination; compensation; lien liability as insurers and as ordinary bailees carriers of live stock; carriers of baggage contracts and notices limiting liability; ter- mination of liability; connecting carriers, etc.; post-office department; private car- riers. Chapter VIII. CARRIERS OF PASSENGERS: Who are passengers; when liability attaches; duty to accept passengers; furnishing equal ac- commodations; ticket as evidence of pas- senger's rights; right to make regulations; injuries to passengers; contracts limiting liability; termination of liability; ejection from vehicle; connecting carriers, and cov- ering the subject generally. Chapter IX. ACTIONS AGAINST CARRIERS: Actions against carriers of goods and carriers of passengers; parties; form of action; plead- ing; evidence; damages. 1 VOLUME. 675 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C995 tfc Somfiooft Jfcriu.) ♦ ♦yvV^w QSj TOaffer ©enfon ^ttttffl, Instructor in the Law Department of the University of Michigan. TABLE OF CONTENTS. Part I— ELEMENTARY JURISPRUDENCE. CHAPTER L NATURE OP LAW AND THB VARIOUS SYSTEMS: Moral, divine, municipal, international, mari- time and martial lav. CHAPTER XL GOVERNMENT AND ITS FUNCTIONS: Covering sovereignty, the state, the constitution, and the forms and functions of government generally, CHAPTER CO. GOVERNMENT IN THE UNITED STATES: Its general character, sovereignty, distribution of powers, citizenship, etc. CHAPTER IV. THE UNWRITTEN LAW: The Roman, the Canon and the Common law. CHAPTER V. EQUITY: Nature and Jurisdiction tt equity; max- ims. CHAPTER VL THE WRITTEN LAW: Relation to unwritten law; statutory law In general. CHAPTER VD. THE AUTHORITIES AND THEIR INTERPRETA- TION: The rank of authorities, rules of inter- pretation, statutory construction, etc. CHAPTER VXCL PERSONS AND PERSONAL RIGHTS: Legal rights, wrongs and remedies, rights in rem and in personam, status, personal security, liberty, property, constitutional guaranties, etc. CHAPTER XX. PROPERTY: Covering, ownership and possession; the Feudal system; eorporeal and Incorporeal, real and personal, property; fixtures, etc. CHAPTER X. CLASSIFICATION OF THB LAW: Substantive and adjective, public and private law, etc. Part II— THE SUBSTANTIVE LAW. CHAPTER XL CONSTITUTIONAL AND ADMINISTRATIVE LAW: Written and unwritten constitutions, essentials and construction of constitutions; administra- tive law, etc. CHAPTER XXL CRIMINAL LAW: Covering Its general nature, criminal capacity, classification of crimes, pun- ishment, etc. CHAPTER XHL THE LAW OF DOMESTIC RELATIONS: Cover- ing marriage and Its Incidents, parent and child, guasdian and ward, master and servant, etc. CHAPTER XIV. CORPOREAL AND INCORPOREAL HEREDITA- MENTS: Covering the subject generally. CHAPTER XV. ESTATES IN REAL PROPERTY: Classification, estates In possession and in expectancy; free- holds and estates less than freehold: estates in severalty, In joint tenancy and in common; ab- solute and conditional, legal and equitable es- tates; etc. CHAPTER XVI. TITLES TO REAL PROPERTY; Covering title by descent and by purchase, classification ana forms of deeds, etc CHAPTER XVIL PERSONAL PROPERTY: Real and personal chat- tels, ownership of personal property, acquisition of title, etc. CHAPTER XVHL SUCCESSION AFTER DEATH: Testate and intes- tate succession, escheat, executors and adminis- trators, etc. CHAPTER XIX. CONTRACTS: Definition, validity and classification of contracts, quasi contracts, etc. CHAPTER XX. SPECIAL CONTRACTS: Covering contracts of sale, bailments, negotiable contracts, suretyship, Insurance, etc. CHAPTER XXL AGENCY: Covering the subject generally. CHAPTER XXII. COMMERCIAL ASSOCIATIONS: Covering part- nerships, Joint stock companies, voluntary asso- ciations, corporations, etc.' CHAPTER XXXCL TORTS: Covering the nature and elements of torts, proximate and remote cause and specific torts. Part III— THE ADJECTIVE LAW. CHAPTER XXXV. REMEDIES: Extralegal and legal, penal and civil, common law and equitable, ordinary and extraor- dinary remedies. CHAPTER XXV. COURTS AND THEIR JURISDICTION: Covering the subject generally. CHAPTER XXVL PROCEDURE: In general; outlines of common law, equity, code, and criminal procedure. CHAPTER XXVII. TRIALS: Early forms, trial procedure, evidence. 1 VOJ-. 367 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., St. Paul, Minn. C1112 < 14 ) (tte ^jornflooft ^eriea.) ($ ^ancBooft of #0e Ban) of ©ama^ Author of "Bailments and Carriers." TABLE OF CONTENTS. CHAPTER I. DEFINITIONS AND GENERAL, PRINCIPLES: Definition, nature and theory of damages; wrong and damage; analysis of legal wrongs; classification of damages. CHAPTER H. NOMINAL DAMAGES: Definition and general na- ture. CHAPTER HI. COMPENSATORY DAMAGES : Definition ; proxi- mate and remote consequences; direct and con- sequential losses; avoidable consequences; cer- tainty of damages; profits; entirety of demand; past and future losses; elements of compensa- tion; aggravation and mitigation of damages; reduction of loss; injuries to limited interests, etc CHAPTER IV. BONDS, LIQUIDATED DAMAGES AND ALTERNA- TIVE CONTRACTS: Covering the subject gen- erally. CHAPTER V. INTEREST: Definition; as a debt and as damages; interest on liquidated and unliquidated de- mands; on overdue paper, — contract and stat- ute rate; compound Interest; etc. CHAPTER VI. VALUE: Definition; how estimated; market value; pretlum affectionis; value peculiar to owner; time and place of assessment; highest interme- diate value; etc. CHAPTER VII. EXEMPLARY DAMAGES: In general; when re- coverable; liability of principal for act of agent; etc. CHAPTER VHI. PLEADING AND PRACTICE: Allegation of dam- age, the ad damnum, form of statement, prov- ince of court and jury, etc. CHAPTER IX. BREACH OP CONTRACTS FOR SALE OP GOODS: Damages In action by seller for non-acceptance and non-payment; damages in action by buyer for non-delivery, breach, of warranty, and as for conversion. CHAPTER X. DAMAGES IN ACTIONS AGAINST CARRIER: Carriers of goods, — refusal to transport, non- delivery, injury in transit, delay, consequential damages; carriers of passengers, — injuries to passenger exemplary damages, mental suffering, delay, wrongful ejection, etc. CHAPTER XX DAMAGES IN ACTIONS AGAINST TELEGRAPH COMPANIES: Actions by sender and by receiv- er; proximate and certain, remote and specula- tive damages; notice of purpose and importance of message; cipher messages; avoidable conse- quences; exemplary damages; etc CHAPTER XIL DAMAGES FOR DEATH BY WRONGFUL ACT: Pecuniary losses; mental suffering; exemplary damages; injury to deceased; medical and fu- neral expenses; meaning of pecuniary, — care and support, prospective gifts and inheritances; in- terest as damages; discretion of jury; nominal damages, etc. CHAPTER XHI. WRONGS AFFECTING REAL PROPERTY: Cam- ages for detention of real property; . trespass; nuisance; waste; contract to sell real property, — breach by vendor or vendee; breach of cove- nants, etc. CHAPTER XIV. BREACH OF MARRIAGE PROMISE: In general, compensatory damages, exemplary damages, etc. 1 VOL 476 PAGES. '$3.75, DELIVERED. WEST PUBLISHING CO., St Paul, Minn. Cllll (15) IGQt S>cm0oo8 Series.) $ J)ftnfc6ooft of €§t £an> of (Reaf (property Q0g <&ttf Qf). §opftitt0, &. (g., £&. (QX. TABLE OF CONTENTS. Chapter I. WHAT IS REAL PROPERTY: Real and personal property, fixtures, equitable conver- sion, personal interests in land. Chapter IX TENURE AND SEISIN. Chapter III. ESTATES AS TO QUANTITY— FEE SIM- PLE: Classification of estates, freehold, fee-simple, creation, right of user and aliena- tion. Chapter IV. ESTATES AS TO QUANTITY (Continued)^ ESTATES TAIL: Classes, origin, crea- tion, incidents, duration, tenant in tail aft- er possibility of issue extinct, estates tail in the United States, quasi entail. Chapter V. ESTATES AS TO QUANTITY (Continued)— CONVENTIONAL LIFE ESTATES: Life estates, creation, conventional life es- tates, incidents, estates per autre vie. Chapter VI. ESTATES AS TO QUANTITY (Continued)— LEGAL LIFE ESTATES: Estate during coverture, curtesy, dower, homestead, fed- - eral homestead act Chapter VTI. ESTATES AS TO QUANTITY (Continued)— LESS THAN FREEHOLD: Estates for years, letting land on shares, tenancies at will, tenancies from year to year, letting of lodgings, tenancies at sufferance, licenses. Chapter VIII. ESTATES AS TO QUALITY ON CONDI- TION—ON LIMITATION: Estates on condition, estates on limitation, base fees. Chapter IX. ESTATES AS TO QUALITY (Continued)— MORTGAGES: Parties, nature, form, rights and liabilities of mortgagor and mort- gagee, assignment of the equity of redemp- tion, assignment of the mortgage, priority of mortgages and other conveyances, regis- tration, discharge of a mortgage. Chapter X. EQUITABLE ESTATES: Statute of mm, classification of trusts, — express, implied, resulting, constructive, — incidents of equita- ble estates, charitable trusts. Chapter XL ESTATES AS TO TIME OF ENJOYMENT —FUTURE ESTATES: Reversions, possi- bilities of reverter, remainders, rule in Shel- ley's Case, future uses, springing uses, shifting uses, executory devises, incidents of future estates. Chapter XIX. ESTATES AS TO NUMBER OF OWNERS —JOINT ESTATES: Joint tenancies, ten- ancies in common, estates in coparcenary, estates in entirety, estates in partnership. Incidents of joint estates, partition. Chapter XIII. INCORPOREAL HEREDITAMENTS: Easements, creation, classification, inci- dents, destruction, rights of way, highways,, light and air, lateral and subjacent sup- port, party walls, easements in water, prof- its a prendre, rents, franchises. Chapter XIV. LEGAL CAPACITY TO HOLD AND CON- VEY REALTY: Infants, persons of un- sound mind, married women, aliens, corpo- rations. Chapter XV. RESTRAINTS ON ALIENATION! Re- straints imposed by law, restraints in favor of creditors, restraints imposed in creation of estate. Chapter XVI. TITLE: Acquisition of title by state and pri- vate persons, grant from state, conveyan- ces, common-law conveyances, conveyances under statute of uses, modern statutory con- veyances, registered titles, requisites of deeds; covenants for title, seisin, against incumbrances, warranty, further assurance; estoppel, adverse possession, accretion, de- vise, descent, judicial process; conveyances under licenses, under duress; tax titles, em- inent domain. 1 VOIi. 589 PAGES. $3.75, DELIVERED. WEST PUBLISHING CO., 5t. Paul, Minn. C1191a < 16 ) (ZW J&orntJooB Series.) ® J)6oo8 of #J5e Bate of Qprit>a^e Corporation** By WH. L. CLARK, Jr., Author ol "Criminal Law," "Criminal Procedure," and "Contracts." SECOND EDITION: By FRANCIS B. TIFFANY. TABLE OF CONTENTS. Chapter I. OF THE NATURE OP A CORPORATION: Definition and creation; limited powers; attri- butes and incidents; corporation as a person, citizen, etc. ; kinds of corporations, etc. Chapter II. CREATION AND CITIZENSHIP OP CORPO- RATIONS: Covering the subject generally, in- cluding power to create; general and special laws; ratification ol claim to corporate exist- ence ; agreement between corporation and state — acceptance of charter; agreement between corporators and corporation ; purpose of incorpo- ration ; corporate name, residence, and citizen- ship of corporation ; extension of charter ; proof of corporate existence, etc. Chapter III. EFFECT OP IRREGULAR INCORPORATION: Corporations de facto; estoppel to deny corpo- rate existence ; liability of stockholders as part- ners. Chapter IV. RELATION BETWEEN CORPORATION AND ITS PROMOTERS: Liability for expenses aDd services of promoters; liability on contract by promoters ; liability of promoters to corporation and stockholders, etc. Chapter V. POWERS AND LIABILITIES OF CORPORA- TIONS: Express and implied powers; con- struction of charter ; power to hold realty ; con- tracts and conveyances, etc. Chapter VI. POWERS AND LIABILITIES OP CORPORA- TIONS (Continued) I The doctrine of ultra vires. Chapter VII. POWERS AND LIABILITIES OF CORPORA- TIONS (Continued): Responsibility for torts and crimes ; contempt of court. Chapter VIII. THE CORPORATION AND THE STATE: Charter as a contract ; police power of the state ; power of eminent domain; repeal and amend- ment of charter ; taxation of corporation. Chapter IX. DISSOLUTION OF CORPORATIONS: How ef- fected; equity jurisdiction; effect of dissolu- tion, etc. Chapter X. MEMBERSHIP IN CORPORATIONS: Capital stock and capital; nature of corporate shares; certificates of stock ; subscriptions to stock ; re- lease and discharge of subscriber, etc., covering the subject generally. Chapter XI. MEMBERSHIP IN CORPORATIONS (Contin- ued) : Right to inspect books and papers ; right to vote ; profits and dividends ; increase of cap- ital; preferred stock ; watered and bonus stock; action by stockholders for injuries to corpora- tion ; expulsion of members, etc. Chapter XII. MEMBERSHIP IN CORPORATIONS (Contin- "ued) : Covering transfer of shares. Chapter XIII. MANAGEMENT OP CORPORATIONS— OFFI- CERS AND AGENTS: Powers of majority of stockholders; by-laws; stockholders' meetings; election and appointment of officers and agents: powers and liabilities of officers and agents ; re- moval of officers and agents, etc., covering the subject generally. Chapter XIV. RIGHTS AND REMEDIES OP CREDITORS: Relation between creditors and the corporation, covering, inter alia, property subject to execu- tion ; assets as a trust fund for creditors ; fraud- ulent conveyances; assignment for benefit of creditors; preferences; dissolution, injunction, and receivers; relation between creditors and stockholders, covering, inter alia, statutory lia- bility of stockholders; contribution between stockholders, etc. ; relation between creditors and officers, covering preferences to officers who are creditors; statutory liability of officers. Chapter XV. FOREIGN CORPORATIONS: Covering the sub- ject generally. APPENDIX. The logical conception of a corporation. I Volume. 721 pages. $3-75. net » delivered. West Publishing Co,, St. Paul, Minn, C1479a (19) €6e ^ornBooft Settee. Qt 3E)at*6oo8 of £0e Eatt of (JtotfnerejKp $$g TWffom eot$e. TABLE OF CONTENTS. Chapter X. DEFINITION AND ESTABLISHMENT OF RELATION: What constitutes a partner- ship; tests of intention; sharing profits; pro- moters of corporations; defective corpora- tion; delectus personarum; subpartnerships; holding out, etc. Chapter II. KINDS OF PARTNERSHIPS AND PART- NERS: Classification of partnerships and partners; universal, general, and special part- nerships; limited partnerships; joint-stock companies; mining partnerships; trading and nontrading partnerships, etc. Chapter HI. CHARACTERISTIC FEATURES OF PARTNERSHIPS: Legal and mercantile view of a firm; partnership name; partner- ship property; partnership capital; shares in partnerships, etc Chapter TV. IMPLD3D RIGHTS AND LIABILITIES IN- TER SE: Participation in management; rights and powers of majority; duty to ex- ercise care, skill, and good faith; right to compete with firm; compensation for serv- ices; interest on balances; partner's lien; division of profits, etc. Chapter V. ARTICLES OF PARTNERSHIP: Purpose and effect; rules of construction; usual clauses in articles, etc.; covering the subject generally. Chapter VI. RIGHTS AND LIABILITIES AS TO THIRD PERSONS: Express and implied authority of partner to bind firm; particu- lar powers; liability of partners to third persons; incoming partners; assumption of debts; rights in firm and separate property. etc. Chapter VH. ACTIONS BETWEEN PARTNERS: Action on partnership claim or liability, at law, in equity, or under the code; actions between firms with a common member; actions on individual obligations; equitable actions in general; accounting and dissolution; spe- cific performance; injunction; receivers, etc. Chapter Till. ACTIONS BETWEEN PARTNERS AND THIRD PERSONS: Parties in actions by and against partners; effect of changes in firm; disqualification of one partner to sue; action in firm name, etc. Chapter IX. DISSOLUTION: Causes of dissolution; part- nerships, for a definite and indefinite time; causes subject to stipulation; causes not sub- ject to stipulation; causes for which a court will decree a dissolution; consequences of dissolution as to third persons and as to partners. Chapter X. LIMITED PARTNERSHIPS: Covering the subject exhaustively, including, inter alia, definition and establishment of relation; general and special members; certificate; ' contribution of general and special partners; name; sign; rights and liabilities; with- drawal, alteration, and interference; insol- vency; termination of relation; change from limited to general liability; actions, etc. Chapter XI. JOINT-STOCK COMPANIES: Definition and nature; transfer of shards; powers of mem- bers and officers; rights and liabilities; ac- tions, etc. I Volume, 616 pages. $3.75, net, delivered. West Publishing Co , St. Paul, Minn. C1471 W • On #e Jljowflooft gerfo.) Qt 3E)mtb6oo6 of <£ Z§t £ of qpm. By GEORGE E GARDNER, |§ Professor in the Boston University Law School & IN THE HORNBOOK SERIES. $3.75 DELIVERED. V'ij ?.| TABLE OF CONTENTS. 1. History of Wills — Introduction. 2. Form of Wills. 3. Nuncupative, Holographic, Conditional Wills. 4. Agreements to Make Wills, and Wills Resulting from Agreement. 5. Who may be a Testator. 6. Restraint upon Power of Testamentary Disposition — Who may be Beneficiaries — What may be Disposed of by WilL 7. Mistake, Fraud, and Undue Influence. 8. Execution of Wills. 9. Revocation and Republication of Wills. 10. Conflict of Laws. 11. Probate of Wills. 12. Actions for the Construction of Wills. 13. Construction of Wills — Controlling Principles. 14. Construction — Description of Subject-Matter. 15. Construction — Description of Beneficiary. 16. Construction — Nature and Duration of Interests. 17. Construction — 'Vested and Contingent Interests — Remainders— Executory Devises. 18. Construction — Conditions. 19. Construction — Testamentary Trusts and Powers. 20. Legacies — General — Specific — Demonstrative — Cumulative — Lapsed and Void — Abatement — Ademption — Advancements, 21. Legacies Charged upon Land or Other Property. 22. Payment of the Testator's Debts. 23. Election. 24. Rights, of Beneficiaries not Previously Discussed. ■ * • » w 04370 (27) (tk ffiomBoofi Series.) Federal Jurisdiction and Procedure By ROBE.RT M. HUGHES, of the Norfolk Bar; author of "Hughes on Admiralty," and lecturer at the George Washington University Law School. TABLE OF CONTENTS. l. 2. 3. 4. 5. Introduction — What It Comprehends. The District Court — Its Criminal Juris- diction and Practice. Same — Continued. The District Court — Criminal Jurisdiction — Miscellaneous Jurisdiction. The District Court — Bankruptcy. 6-7-8. Same — Continued. 9. The District Court — Miscellaneous Juris- diction. 10. The Circuit Court — Original Jurisdiction. 11-12. Same — Continued. 13. The Circuit Court — Jurisdiction by Re- moval. 14-15. Same — Continued. 16. The Circuit Court — Jurisdiction by Re- moval — Original Jurisdiction of the Su- preme Court — Other Minor Courts of Original Jurisdiction. 17. Procedure in the Ordinary Federal Courts of Original Jurisdiction — Courts of Law. 18. Procedure in the Ordinary Federal Courts of Original Jurisdiction — Courts of ■ Equity. 19. Same — Continued. 20. Appellate Jurisdiction — The Circuit Court of Appeals. - 21. Appellate Jurisdiction — The Supreme Court. 22. Procedure on Error and Appeal. The U. S. Supreme Court Rules and the Rules of Practice for the Courts of Equity of the United States are given in an Appendix. .1 volume, 634 pages. $3.75 delivered. West Publishing Co., St. Paul, Minn. C5774 (2$ 3« $e jgowBoofi §kti<6. Public Corporations By HENRY H. INGERSOLL, LL. D., Dean of the University of Tennessee School of Law. PART I. QUASI CORPORATIONS. Chap. I. Nature, Creation, Classification. II. Quasi Corporations — Liabilities, Ele- ments, Counties, Property, etc. III. Same — Continued. IV. Same — Continued. PART It. MUNICIPAL CORPORATIONS. V. Municipal Corporations. VL Their Creation — How — By what Bodies — Subject to what Restric- tions, etc. VII. Their Alteration and Dissolution. VIII. The Charter. IX. Legislative Control. X. Proceedings and Ordinances. XI. Officers, Agents, and Employes. XII. Contracts. XIIL Improvements. XIV. Police Powers and Regulations. XV. Streets, Sewers, Parks, and Public Buildings. XVI. Touts. XVII. Debts, Funds, Expenses, and Admin- istration. XVIII. Taxation. XIX. Actions. PART III. QUASI PUBLIC CORPORATIONS. XX. Quasi Public Corporations. XXI. Railroads. XXII. Electric Companies. , XXIII. Water and Gas Companies. Other Quasi Public Corporations. XXIV. 738 Pages. $3.75 delivered. Qlest publishing Co*, St. paul, JMinn. C4764 (29) (3n tU ^ornBooft gixiis.) A Handbook on the Law of INSURANCE, By WILLIAM RE.YNOLDS VANCE, Professor of Law in the George Washington University. The principal object of this treatise is to give a consistent statement of logically developed principles that underlie all contracts of insurance, with subsidiary chapters treating of the rules peculiar to the several different kinds of insurance. Special attention has been given to the construction of the standard fire policy. This treatment will help to bring about, we believe, the much desired clarification of this branch of the law. The chapters cover, — Historical and Introductory- Nature and Requisites of Con- tract. Parties. Insurable Interest. Making the Contract. The Consideration. Consent of the Parties — Con- cealment. Consent of the Parties — War- ranties. Agents and Their Powers. Waiver and Estoppel. The Standard Fire Policy. Terms of the Life Policy. Marine Insurance. Accident Insurance. Guaranty, Credit^ _and Liability Insurance. Appendix. 1 volume, 683 pages. $3.75 delivered. WEST PUBLISHING CO., St. Paul, Minn. C4736a (30) Principles and Precedents The following letter expresses so pithily the present tendencies in the use of law books that we gladly print it in full. S. B. POUND, ROSCOE POUND, ATTORNEYS AT LAW. Rooms 126, 126, 127, Burr Block. Lincoln, Neb,, November 6th, 1896. West Publishing Co., St. Paul, Minn. Gentlemen: I regard the plan of your Hornbook Series as a very happy one. The tendency has been very marked for some years to make text bopks little more than unwieldy digests. Such text books are soon obsolete, and the expense of new editions is large. The rapid development of digest making cannot fail to result in superseding the text-book digest by the digest pure and simple. With your Century Digest when it appears, and the Annuals, there will be no need for the ordinary text book. But for this very reason there will be, and there now is, a greater need for such books as those of the Hornbook Series. For au- thorities and cases in point we must go to the digests; but in order to be sure that we are right before we go ahead, we must have some ideas as to what we are to look for. I have found several of the Hornbooks of great use for this purpose. You are also to be congratulated upon the writers whom you have chosen to do the work. Several who bid fair to take very high rank among legal authors have made their first appearance as contributors to the series. While lawyers have been debating how to reform official reporting, you have made the decisions of all our courts accessible to the pro- fession at comparatively slight expense. While critics are deploring the degeneration of text books, as they deem it, you are again coming to our assistance by providing text books that combine scientific treat- ment with practical usefulness. The profession require the former as well as the latter, but in a busy age the latter is an imperative necessity. Yours very truly, ROSCOE POUND. C1299 (31) ' "The ideal legal text-book of to-day is not so much one that enables the busy lawyer to find authorities — the digests and encyclope- dias do this— as one that refreshes his mind on the fundamental principles of law that underlie his case. * * * The Hornbook Se- ries offers the practitioner a most convenient opportunity to quickly review the main- springs of the law having relation to the subject in his mind at any particular time." — Central Law Journal. "Too much cannot be said in commen- dation of that feature peculiar to the Hornbook Series, to wit, concisely stat- ing the leading principles in black-letter type. It not only furnishes the lawyer with the most convenient method of quick- ly reviewing the general principles of a subject, but it tends to insure careful and accurate statement on the part of the au- thor." — Virginia Law Register. C4829a *»