Cornell University Library KF 1045.S79 The law of suretyship xovering personal 3 1924 018 848 261 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018848261 THE LAW OF SURETYSHIP COVERING PERSONAL SURETYSHIP, COMMERCIAL GUARANTIES SURETYSHIP AS RELATED TO NEGOTIABLE INSTRUMENTS, BONDS TO SECURE PRIVATE OBLIGATIONS, OFFICIAL AND JUDICIAL BONDS, SURETY COMPANIES. BY ARTHUR ADELBERT STEARNS, of the Cleveland ]f^ ** CINCINNATI, L ANDERS PUBLISHERS, 1903. 1902 COPTKIGHT. THE W. H. ANDERSON CO. PREFACE. The case law involving questions of suretyship is one of the largest constituents of the common law. The equities arising out of a suretyship relation are extended hy analogy to many transactions which cannot be denominated as obligations to pay the debt of another, but which come within the range of the es- sential elements of a suretyship undertaking. Under this head may be classed generally all contracts in which two or more are jointly or severally bound for the same duty, also those contracts in which the debtor secures his obli- gations by the pledge or mortgage of his property, and many citations to this class of cases might be made which, though useful, would doubtless be an unnecessary encumbrance to a work in which the only aim is to present a direct statement of the law. It is believed that all the distinctive features of a suretyship contract are illustrated by the cases cited in the text. There are in addition as many more cases which, because of statutory provisions or special conditions, have furnished a great va- riety of exceptional rulings. The task of eliminating this class of precedents has been the most laborious, but possibly the most useful, feature of the work. The past decade is of special interest to the student of the law of suretyship. The learning upon this subject is marked by a noticeable shifting in the attitude of the courts in refer - enee to the somewhat vexed problems involved. This is spe- cially true in the matter of suretyship as related to negotiable instruments. The lack of harmony in the case law touching this branch of suretyship has defied all classification. The later cases, however, are bringing the subject into more ra- tional accord. VI. PEEFACE. It is also true that the rights of the creditor or beneficiary of the suretyship are now receiving a more favorable con- stmction than was accorded by the earlier cases. This with- out doubt arises in part because of the advent of the Cor- porate Surety. These corporations have challenged the attention of the courts to the more exact relations between the parties to a suretyship undertaking, and many of the later cases are in marked contrast to the earlier adjudications, which in many instances set down the law of suretyship as being merely a series of rules whereby a person bound to pay the debt of another is assisted in evading his liability. The duty of legal editorship does not require more than to present with as much accuracy and precision as possible a statement of what the law is, and the sources from which it is derived, with some regard for the logical order in which the subject is developed. It excludes all speculation as to what the law ought to be. The temptation, however, is exceptionally strong, in the field of Suretyship, to point out the importance of more uniformity in the solution of the problems presented. The business of the great Commercial States in which the English Common Law is administered is today conducted upon a system of credit which involves the collateral obligations of third persons to an extent fully equal to the direct prom.ise of the debtor to pay, or to perform the duty contracted for, and there is a just demand for rules of universal aipplieation. An examination of the cases with a view of pointing out a wider range of uniformity among the controlling precedents has been one of the distinct purposes of this work. The author acknowledges his indebtedness to Geo. W. Piatt, Esq., of the Cincinnati Bar, who has read the manuscript and submitted many critical notes of value. Aethue Adelbeet Stbaens. Cleveland, December First, 1902. CONTENTS. y CHAPTEE I. THE CONTRACT." SECTION". PAGE. 1. Suretyship defined. . . : 1. 2. The nature of the contract 2 3. Personal suretyship 3 4. Real suretyship 3 5. Parties to the contract 4 6. Surety and guarantor distinguished 5 7. Indorser 7 8. Irregular or anomalous indorser 7 9. Irregular indorsement before and after delivery 9 10. Irregular indorser held only as indorser 10 11. Who may become promisors in suretyship 11 12. Disability by statute 13 13. Surety companies 13 14. Duress 14 15. Fraud in the making of the contract 14 16. Consideration 16 17. Suretyship contract must be express 17 18. Ambiguous words. — How interpreted 19 19. Estoppel of promisor to deny recitals in the contract 20 20. Incompleted contracts of suretyship 21 21. Statutory requirements 22 22. Contracts in suretyship executed by agents 23 23. Suretyship by operation of law 24 CHAPTEE II. "^ THE STATUTE OF FRAUDS. 24. The purpose of the statute of frauds 26 25. The English statute 27 26. Meaning and scope of the word " agreement." 29 27. Same subject continued. American decisions 30 28. The " Memorandum or Note." 33 29. Same subject continued 34 30. The signature to the memorandum 36 vii Vlll CONTENTS. SECTION. PAGE. 31. " Special Promise " to whom made 37 32. Same. Applied to contracts of indemnity 37 33. Same subject continued 38 34. Same subject continued. — American decisions 40 35. All contracts of suretyship are within the statute of frauds .... 41 36. Credit given wholly to promisor 42 37. Joint liability of promisor and another 43 38. Discharge of original debtor 44 39. Consideration beneficial to promisor. — Co-existing liability of another is not always a test of suretyship 45 40. Promise to pay debt of another out of property of debtor in promisor's hands 46 41. Release of liens and securities by creditor as basis of original promise 48 42. Promise to pay pre-existing liability of promisop not within the statute 4F 43. Assumption of vendor's debt as part of purchase price not within the statute 51 44. Contract of Del Credere agent not within the statute 51 45. Pleading transactions within the' statute — Plaintiff's allega- tions 52 46. Pleading statute as a defense 52 47. Lex Fori — The statute of frauds remedial 54 CHAPTEE III. -^ COMMERCIAL GUARANTIES. 48. Scope of the subject 55 49. Construction of contracts of guaranty 56 50. Construction of equivocal or ambiguous words 59 51. General guaranty 63 52. Special guaranty 64 53. Guarantor for one principal not held for joint principals 65 54. Guarantor for joint principals not held for one 65 55. Retrospective guaranties 66 56. Guaranty without knowledge of principal debtor 67 57. Consideration 67 58. Form of guaranty 69 59. Continuing guaranties 70 60. Same subject continued 72 61. Absolute guaranties 73 62. Guaranty of collectibility 74 63. Test of due diligence 75 64. Notice to guarantor of acceptance of the guaranty and advance- ments thereon 77 CONT-BIirTS. IX SECTION. PAGE. 65. Federal court rule as to notice of acceptance of guaranty 80 66. Rule of the State courts as to notice of acceptance of guaranty. . 83 67. Notice to guarantor of default of principal 86 68. Cases in which notice to guarantor of default is necessary 89 69. Joint and several guaranties 92 70. Guaranty covers interest 93 71. Revocation of guaranty 94 y CHAPTEE IV. SURETYSHIP DEFENSES. 72. Material alteration of principal contract 98 73. Same subject continued 99 74. Same subject continued 102 75. Alteration of principal contract by the addition of new parties . . 105 76. Alteration of principal contract by a change in the duties of the principal 106 77. Variation in amount of advancements under limited guaranty. — Effect upon guarantor 108 78. Change of parties 109 79. Alterations beneficial to the surety or guarantor 110 80. Alterations enlarging the principal liability 113 81. Discharge of promisor by extension of time 114 82. Agreement for extension must be for a consideration 115 83. Payment of advance interest as a consideration for extension. . . .116 84. Agreement for extension must be for a definite time 119 85. Extension of time by the execution and delivery of a note for the debt payable at a later date 1 19 86. Collateral securities maturing at a later date 120 87. Extension of time by Act of Legislature 121 88. Giving time to surety. Effect upon co-surety 122 89. Giving time is not a defense if the surety is fully indemnified . . . 12.3 90. Extension of time as a defense to persons who are in the situation of a surety 124 91. Extension by appeal or continuance in judicial proceedings 127 92. Extension of time with reservation of rights against the surety . . 128 ■ 93. Agreements not to sue as distinguished from agreements to ex- tend. — Effect upon surety 129 94. Waiver of the defense of extension of time 130 95. Delay of the creditor in pursuing remedies against the principal as a defense to the surety or guarantor 131 96. Payment or other satisfaction as a discharge of the surety or guarantor 133 97. Liability against surety or guarantor revived if payment or sub- stituted security is void 135 X CONTENTS. SECTION. PAGE. 98. Voluntary release of security held by the creditor or upon which the creditor has a lien . . . . , , 137 99. Release of securities by the misconduct of the creditor 140 100. Release of securities by operation of law 143 101. Release by the creditor of property of principal in his posession or control, but not held as security for the suretyship debt . . 14.5 102. Whatever releases principal will release the surety or guarantor . . 146 103. Same subject. — Release of principal by operation of law 147 104. Same subject. — In eases where the release by operation of law is not the result of the fault or procurement of the creditor . . 149 105. Suretyship obligations obtained by fraud of the creditor 150 106. Same subject.- — Concealment or non-disclosure of facta by the creditor 152 107. Discharge of promisor by failure to disclose facts coming to the knowledge of the creditor, after the execution of the con- tract 156 108. Fraud and misconduct of the principal 158 109. ^Misconduct of the principal, by delivering suretyship obligations without complying with conditions 159 110. Suretyship contracts made in reliance upon promises of the cred- itor 162 111. Conditional contracts of suretyship. — Parol evidence not compe- .. tent to show conditions 163 112. Same subject. — Parol evidence competent in certain cases 166 113. Release of promisor by the creditor • 168 114. Release of a co-promisor by the creditor 170 115. Defense of the promisor based upon the failure of the creditor to sue the principal when requested 173 116. Same subject. — The doctrine of Pain vs. Packard 176 117. The principal's right of set-off or counterclaim against the creditor as a defense to the promisor 178 118. Defenses based upon the right of the promisor to control the ap- plication of collateral 18 1 119. Revocation. — Death of the promisor 184 CHAPTEE V. SURETYSHIP AS RELATED TO NEGOTIABLE INSTRUMENTS. 120. Liability in general of parties to negotiable instruments 188 121. Regular indorsement or indorsers in the chain of title 191 122. Suretyship defenses of regular indorsers 192 123. Regular indorser not entitled to special equities of accommoda- tion promisors 1Q4 124. Special indorsements jg5 CONTENTS. XI SECTION. PAGE. 125. Conditional and restrictive indorsements 197 126. Conditions or restrictions upon regular indorsements shown by parol 199 127. The view that conditions and restrictions upon regular indorse- ments can not be shown by parol 203 128. Anomalous or irregular parties to negotiable instruments 205 129. Presumption as to contract made by irregular indorser signing before delivery 209 130. Presumption as to contract made by irregular indorser signing after delivery 212 131. Parol proof as to whether irregular indorser signed before or after delivery 213 132. Parol proof as to the kind of contract intended by the irregular indorsement in blank 214 133. Indorsement in blank by a stranger upon a note payable to the order of the maker 217 134. Irregular indorser not bound by the implied warranties of the regulai- indorser 210 135. Indorsement for transfer in the form of a guaranty 220 136. Defenses of irregular indorsers. — Order of liability. — Contribu- tion 222 137. The right of the holder to fill in blank indorsements 224 CHAPTEE VI. BONDS TO SECURE PRIVATE OBLIGATIONS. 138. Private obligations distinguished from official duty in public office 229 139. A bond is a specialty. — Eorm and execution 230 140. The signing and sealing of a bond 231 141. Delivery and acceptance are necessary to the validity of a bond. .234 142. Incomplete bonds. — ^Right of the obligee to fill blanks 235 143. The incorporation of other instruments into the bond by refer- ence 236 144. Consideration 238 ,145. Bonds obtained by fraud or misrepresentation 240 146. Parol evidence in aid of construction 242 147. Commencement and duration of liability upon a bond 244 148. Bonds of general indemnity 246 149. Bonds to secure building contracts, with covenants for the pay- ment of labor and material claims 247 150. Alteration of the principal contract as a defense to sureties upon the bond 251 151. Alterations in bond as a defense to the sureties 254 152. Surety upon bond estopped from denying the recitals of the bond. 255 153. Measure of damages upon breach of the conditions of a bond. . . .257 Xll COITTBNTS. SECTION. PAGE. 154. Same subject. — Where the penalty or forfeiture is imposed by statute 260 155. Interest as an element in the measure of damages 262 156. Bonds to induce violation of law are void 262 157. Bonds to prevent performance of public duty or to induce acts in violation of public duty are void 265 158. Discharge of surety upon a bond by payment or acts equivalent to payment 266 159. Statutes of limitations as a defense to sureties upon a bond 267 160. As to who are proper pajties in an action upon a bond 271 161. Joinder of parties plaintiff 273 162. Joinder of parties defendant 274 CHAPTER VII. OFFICIAL BONDS. 163. Who are public officers 277 164. The duty of a public officer to give a bond arises from statute.. 281 165. Bonds of deputies 284 166. Qualification and approval of sureties 286 167. The signing of the bond by the principal 288 168. Liability of sureties as affected by failure to deliver or furnish the bond within the time required by law 289 169. Sureties upon official bonds discharged by alterations to which they do not consent 292 170. Alteration in the duties of the principal by amendment to the law ._ 293 171. Extension of tenure of office by legislative act 296 172. Special bonds given by officers who have also given general bonds. 297 173. Bonds of public officers not retroactive and cover only the period named in the bond 299 174. Same subject. — Where the wrongful act was partly in one and partly in another term 303 175. Second bond given in the same term cumulative 303 176. Liability of surety for the negligence or error in judgment of m public officer 304 177. Liability of sureties for failure of public officer to account for the use of public funds 305 178. Sureties not liable for defaults of principal in not performing his contracts with persons dealing with him in his official ca- pacity 309 179. Sureties upon official bonds are not released by the negligence or misconduct of other officials 310 180. Sureties not liable for failure to account for money received by the principal outside the scope of his office 311 CONTENTS. Xm SECTION. PAGE. 181. Liability upon bond of sheriff or constable for trespass and other wrongs committed colore officii 314 182. View that sureties are not liable for wrongs of sheriff or constable committed colore officii 319 183. Liability for loss of public money by failure of the bank used as public depository 320 184. Liability for loss of public money by theft or robbery 324 185. Liability against judicial officers acting without jurisdiction. .. .327 186. Liability of judicial officers for ministerial acts 331 187. Liability of principal for acts of his deputy 333 188. Liability on bond of a notary public 334 189. Defenses in actions upon bonds of public officers 334 190. Presumption that official duty has been performed 337 191. Evidence against sureties on official bonds 338 192. Same subject. — Judgment against principal as evidence against the surety 340 193. Same subject. — View that judgment against the principal is prima facie evidence against the surety 342 194. Same subject. — View that judgment against the principal is con- clusive against the surety 343 195. Limitations upon actions against sureties on official bonds 345 CHAPTER VIII. JUDICIAL BONDS. 196. Suretyship in the application of legal remedies 348 197. Bonds for stay of execution or appeal 352 198. Statutory requirements as to appeal or stay bonds 354 199. Irregularities or defects whereby bonds are invalidated 357 200. Immaterial defects in the contract 359 201. Failure to perfect the appeal 360 202. Conditions upon which appeal or stay bonds become payable .... 362 203. Same subject. — Affirmance by failure to prosecute appeal 364 204. As to when action may be brought upon bond for appeal 367 205. Measure of damages in an action upon an appeal or stay bond. . .369 206. Successive appeal bonds 374 207. Defenses in actions upon appeal bonds.^-Estoppel 375 208. Appeal from a justice court 376 209. Bonds to procure injunction 377 210. Wlien action for damages upon an Injunction bond ax;erues 379 211. Construction of bonds to procure injunction 383 212. Defenses of sureties upon injunction bonds 384 213. Measure of damages for breach of injunction bond 386 214. Same subject. — Defendant's expenses in procuring a dissolution of injunction 388 215. Attachment bonds 390 XIV CONTENTS. SECTION. PAGE. 216. Attachment bonds not forfeited for irregularities of execution or defects in form 392 217. Whether damages for malicious prosecution are recoverable upon bond to procure attachment 393 218. Forthcoming or redelivery bonds 395 219. Bonds to discharge attachment 396 220. When action accrues upon bonds in attachment 398 221. Good faith of the plaintiff, or probable cause for attachment not a defense in actions upon bonds 401 222. Sureties estopped from questioning the regularity of the proceed- ings out of which their liability arises 402 223. Exoneration of sureties in attachment proceedings 403 224. Attachment bonds are available in any court to which the case is taken on appeal 404 225. Measure of dajnages in actions upon attachment bonds 405 226. Replevin bonds 407 227. Conditions of bonds in replevin 408 228. Bonds in replevin which are void 408 229. What constitutes a breach of a replevin bond 409 230. Sureties upon replevin bonds are concluded by the final order in the replevin action 410 231. Mea;sure of damages in action upon replevin bond 411 232. Defenses in action on replevin bonds 413 233. Bonds given in the course of the administration of estates of deceased persons 415 234. Dutie.s for which executors and administrators are chargeable on their bonds 415 235. The scope of the administration bond covers all assets and equi- ties of the estate 418 236. Successive administration bonds are cumulative 420 237. As to whether judgment or order of court against the principal is necessary to a cause of action on the administration bond. . .421 238. The sureties upon the bond of an administrator are concluded by judgment against the principal 423 239. Defenses to action upon administration bonds 423 240. Who may maintain action on administration bonds 425 241. Bonds of guardians. — Scope of liability 426 242. Settlement of guardians' accounts. — release of sureties on the bond 428 243. An adjudication against the guardian is conclusive against the sureties 429 244. Bonds given in the course of insolvency proceedings 430 245. Bail bonds 431 240. Conditions in bail bonds. — Time of appearance 432 247. Same subject.— Place of appearance 434 248. Defenses against bail bonds 435 249. Discharge or exoneration of bail 437 CON'TENTS. XV OHAPTEE IX CORPORATE SURETYSHIP. SECTION. PAGE. 250. Surety companies. — Compensated suretyship 44 1 251. Private and corporate suretyship compared 444 252. Corporate suretyship and insurance compared 446 253. Corporate suretyship as affected by the premium or compensa- tion paid 446 254. Corporate compensated suretysliip is within the statutes of frauds 448 255. Construction of corporate suretyship contracts 449 256. Surety company bonds as affected by the special stipulations in- serted for their protection in the contract 452 257. Same subject. — Stipulation that the obligee shall notify the surety of any act of the principal that " may " involve loss upon the bond 453 258. Stipulations discharging surety if claim is not made within a designated time 456 259. Stipulation that the amount paid by surety upon the bond shall be conclusive against the principal in an action by the surety against the principal for indemnity '. . . .457 260. Contract of the compensated surety valid only as a collateral undertaking 458 CHAPTEE X. THE RIGHTS AND REMEDIES OF THE PROMISOR AFTER PAY- MENT. 261. Subrogation 462 262. Subrogation arises only when claim is paid in full 466 263. Subrogation is a mere equity and will not be applied against the legal rights of others dealing with the principal 468 264. The promisor who pays is entitled to have the securities held by the creditor assigned to him 470 265. Subrogation extends not only to securities but also to all reme- dies of the creditor . . . .■ 471 266. Surety paying judgment against the principal will be subro- gated to the lien and other rights of the creditor under the judgment 476 267. A suretyship promisor who pays will be subrogated to any mort- gage security which the creditor holds for the debt 480 268. Subrogation applies to one in the situation of a surety 483 269. Surety who pays the debt is entitled to be subrogated to a pro rata share of any dividend which is derived from the assets of the principal 486 COBTXBNTS. SECTION. PAGE. 270. Subrogation among co-sureties 489 271. Subrogation between successive sureties 490 272. Subrogation in favor of the creditor to securities held by the surety 495 273. Same subject. — The view of the English courts '. 499 274. Remedies of the surety in cases where he is deprived of subroga- tion by act of the creditor 501 275. When surety will be subrogated to the principals' claims of set off against the creditor 502 276. Subrogation not available to one who pays the debt of another as a mere volunteer 503 277 Conventional subrogation 506 278. Waiver of subrogation 508,* 279. Contribution between co-sureties. — General principles 509 280. Contribution between sureties bound by different instruments. . .513 281. A surety for a surety not liable in contribution 516 282. Contribution as aflfected by special contract between sureties. .. .517 283. Contribution between persons in the situation of a surety 518 284. One who becomes surety at the request of a co-surety is liable in contribution to such co-surety 519 285. One who aids in the commission of the default is barred from the right of contribution 521 286. When contribution may be enforced 522 287. Equitable contribution or the right of a surety to call upon his co-surety for exoneration before payment 524 288. Amount recoverable in contribution 525 289. Contribution as affected by the insolvency of one or more co-sure- ties 526 290. Contribution as affected by absence from the jurisdiction or by the death of a co-surety 526 291. Surety seeking contribution must account to his co-sureties for indemnity furnished him by the principal 527 292. Surety may enforce contribution even though payment by him was without compulsion 531 293. Contribution as affected by the release of one of several co-sure- ties 534 294. Bankruptcy of a surety. — Effect on co-surety's right of contribu- tion 535 295. Contribution between parties to bills and notes 537 296. The right of indemnity against the principal 539 297. When right of indemnity arises 543 298. Equitable exoneration 544 299. Right of indemnity arises from payment or transactions equiva- lent to payment 545 300. Amount recoverable by indemnity proceedings 547 301. Right of indemnity as affected by the non-liability of the princi- pal 549 CONTEBTTS. XVU SECTION. PAGE. 302. Right of indemnity as affected by the non-liability of the surety or guarantor 551 303. When judgment against the surety or guarantor is conclusive as to the right to recover indemnity 553 304. Indemnity as affected by the bankruptcy of the principal 553 THE LAW OF SURETYSHIP. CHAPTER I. THE CONTRACT. Sec 1. Suretyship Defined. Sec. 2. The Nature of the Contract. Sec. 3. Personal Suretyship. See. 4. Real Suretyship. Sec 5. Parties to the Contract. Sec. 6. Surety and Guarantor Distinguished. Sec. 7. Indorser. Sec. 8. Irregular or Anomalous Indorser. See. 9. Irregular Indorsement Before and After Delivery. Sec. 10. Irregular Indorser held Only as Indorser. Sec. 11. Who May Become Promisors in Suretyship. See. 12. Disability by Statute. Sec. 13. Surety Companies. Sec. 14. Duress. Sec. 15. Fraud in the Making of the Contract. Sec. 16. Consideration. Sec. 17. Suretyship Contract must be Express. See. 18. Ambiguous Words — How Interpreted. Sec. 19. Estoppel of Promisor to Deny Recitals in the Contract- See. 20. Incompleted Contracts of Suretyship. Sec. 21. Statutory Requirements. Sec. 22. Contracts in Suretyship Executed by Agents. See. 23. Suretyship by Operation of Law. §1. Suretyship defined. Suretyship embraces all foiins of obligations to pay the debt or answer for the default of another.^ J The desirability of defining general and a special meaning. In legal terms, by giving to them, general, it means a security of any so far as possible, their generally sort, and, outside of legal phrase, accepted meaning in popular dis- has such accepted meaning. As a course, will be conceded. The word special term of the law it is re- " Snrety," however, has acquired a stricted to a security of a certain 1 3 THE LAW OF SUEBTYSIIIP. The person who is so bound in a contract of suretyship is called either a Surety, a Guarantor or an Indorser. It is not strictly accurate, although in common use, to employ the ex- 13'ression " Suretyship and Guaranty." Guaranty is a subdivision of suretyship. The term describes the obligation assixmed by one who becomes a Guarantor in a suretyship relation. This obligation is different in some im- portant respects from the contract made by the Surety andf Indorser, yet each are promisors in a suretyship contract. i§2. The nature of the contract. l^o one incurs a liability to pay a debt or perform a duty for another unless he expressly agrees to be so bound. The law does not create relations of this character by mere impli- cation. Suretyship arises only ^ in contract, and such a con- tract to be binding must be entered into for a consideration, must be duly executed between parties competent to contract, and without duress or fraud and must be in writing.' The early adjudications in suretyship treated the contract as one of great burden to the promisor, because of the fact that it Avas usually entered into for accommodation merely, and %vith- out any participation in the benefits of the principal contract. ■kind. No good reason is apparent " suretyship " is not used at all. why the broader term suretyship. 2 Involuntary sviretyship, result- when carried into legal parlance. ing from the operation of law, is should also be given a restricted not am obligation to pay the debt meaning. Bouvler says : " Surety- of another imposed by implication, ship is a primary obligation to see or by the law, but is merely ex- that the debt is paid, while guar- tending the privileges of suretyship anty is a collateral undertaking." to parties already bound. (Post This invention of the distinguished Sec. 23.) lexicographer has been followed by •'' IngersoU vs. Baker, 41 Mich. 48. many and rejected by many, with The English Statute of Frauds the result that the word, surety- (29 Chas. II., Chap. 3) has been ship, is being used in a double substantially re-enacted . in all the sense in our law. The authority states, and provides that no action cited by Bouvier (Dole vs. Young. shall be brought to charge anyone 24 Pick. 250) does not sustain his upon a promise to pay the debt of use of the word. The case merely another, unless the agreement is ia defines guaranty .~nd " the word writing. (See Post, Chap. 2.) THE CONTRACT. 3 These facts were not without their influence upon courts, and gave rise to a line of precedents of strict construction against the one claiming under a suretyship contract.* In addition to the fact that the promisor in a suretyship contract usually derived no beneiit from it, the attention of courts has always been specially directed to the peculiar position of the obligor, in that his liability is fixed by tlie default of another over whose conduct he may not be able to exercise any control. The nature of the contract invokes equitable considerations in the construction without, however, excluding the rules for the construction of ordinary contracts. §3. Personal suretyship. A^eements of persons, real or artificial, to pay the debt of another may be denominated Personal Suretyship, in dis- tinction from obligations in rem, or the use of property, real or personal, as a security for debt. §4. Real suretyship. The term real suretyship, or obligation resting upon specific property as a security for debt, is a legal fiction, but a very usoful one. It expresses the rights which one person acquires in specific property of another to secure a debt, and is a con- venient classification in suretyship. * Lord Arlington vs. Merricke, 2 ation after it is made, though bene- Saund. 412; Law vs. East India Co., fieial to the surety, has the same 4 Ves. Jr. 824; Hassell vs. Long, 2 effect. His contract exactly as M. & S. 363; London Assurance Co. made is the measure of his liabil- vs. Bold, 6 Ad. & Ell. 514; Chase vs. ity; and, if the case against him be McDonald, 7 Har. & John. 160; Mil- not clearly within it, he is entitled ler vs. Stewart, 9 Wheat. 680 : Ma- to go acquit.'' gee vs. Manhattan Life Ins. Co., 92 Barnes vs. Barrow, 61 N. Y. 42; U. S. 98. Sicayne, J.: "A surety is Kingsbury vs. Westfall, 61 N. Y. 'a favored debtor.' His rights are 360; Nat. Mechanics' Banking Assn. zealously guarded both at law and vs. Conkling, 90 N. Y. 116; Ander- in equity. The slightest fraud on son vs. Bellenger, 87 Ala. 334; 6 the part of the creditor, touching South. 82 ; State vs. Medary, 17 O. the contract, annuls it. Any alter- 554. THE LAW OF SUEETYSHIP. We generally say that a person has a lien upon property, rather than say certain property is under an obligation to a person. But lien includes other transactions than pledge and mortgage, which are the particular subjects of real suretyship." §5. Parties to the contract. It requires three parties to make a contract of personal sure- tyship, (a) the one for whose account the contract is made, whose debt or default is the subject of the transaction, and who is called the principal; (b) the one to whom the debt or obligation runs, the obligee in suretyship, called the credit- or ; (c) the one who agrees that the debt or obligation running from the principal to the creditor shall be performed, and who undertakes on his own part to perform it, called the promisor.* 5 The law frequently substitutes its own will for the agreement of parties in the creation of liens or obligations resting upon property, .iuch as judgment liens and other liens created by statute. The " es- tate by elegit," created by one of the early Westminster Statutes in Bngland, is a further illustration. By this statute, it was provided that after one has a judgment for his debt he may have a writ en- titling him to the possession of one half the defendant's lands to be held until the judgment is fully paid. — III Blackstone 418. essenden vs. Summers, 62 .39 (1898) In which the distinction p^^ ^g^ is clearly made. See Post Sec. 61, 11 Good vs. Martin, 95 U. S. 90; Rey et al. vs. Simpson, 22 Howard (a) Kramph*5 Executrix vs. Hatz's, oat rx „ t, o jnrvc. Executors, 52 Pa. St. 536; Mcintosh- 341; Greenough vs. Smead, 3 0. S. Huntington Co. vs. Reed, 89 Fed. Rep. 41^ j^ g ^g Bosley, .15 Md. 262. 464. J' ■ 8 THB LAW OF SURETYSHIP. in this respect the rules are at variance in different states," This presumption of fact, however, may be rebutted by parol and the real contract established.^' This seems to be the rule in all the states excepting Massachusetts and Minnesota, where the presumption as to the anomalous indorser being a Surety is conclusive.^* If, however, it is shown that the accommodation party signed, not for the purpose of giving the maker credit with the payee, but to enable the maker or the payee to discount '^^ Presumed to be Guarantor — Perkins vs. Catlin, 11 Conn. 213 j Parkhurst vs. Vail, 73 111. 343 ; Fir- man vs. Blood, 2 Kan. 496 ; Fuller- ton vs. Hill, 48 Kan. 558; 29 Pac. 583. In Van Doren vs. Tjader, 1 Nev. 322 it appears that the indorsement ■was before delivery but the Court says : " The intention of the par- ties to a contract is always the ob- ject which is to govern the court in its interpretation, and in ascertain- ing the rights and obligations of the parties to it. If this rule should be recognized in these cases it ■would be difficult to see how a per- son not a party to a negotiable note, signing his name upon the back of it, could be treated as a maker. The very fact of the name being in- dorsed upon the back would be some evidence at least against the pre- sumption of his intention to become primarily liable as maker of the note. We deem the position of Guar- antor in a case of this kind most consonant with justice, reason and the intention of the parties.'' Champion vs. Griffith, 13 0. 228; Greenough vs. Smeed, 3 0. S. 416; Watson vs. Hurt, 6 Gratt. 633 ; Ar- nold vs. Bryant, 8 Bush (Ky.) 668; IKnight vs. Donsmore & Chambers, 12 Iowa 35. (Sec. 3265 Iowa Code.) Presumed to be Surety — Killian vs. Ashley et al., 24 Ark. 511; Gil- pin vs. Marley, 4 Houst. (Del.) 284; Camp vs. Simmons, 62 Ga. 73; Law- rence vs. Oakey, 14 La. 387; O'Leary vs. Martin, 21 La. An. 389; Leonard vs. Wildes, 36 Me. 265; Ives vs. Bosley, 35 Md. 262 ; Moyna- han vs. Hanaford, 42 Mich. 329, S N. W. 944; Stein vs. Passmore, 26 Minn. 256; Schneider vs. Schi£Fman, 20 Mo. 571; Currier vs. Fellows, 27 N. H. 366; Baker vs. Robinson et al., 63 N. C. 191 ; Perkins Adms. vs. Barstow, 6 R. I. 505; Cook vs. Southwick, 9 Tex. 615; Latham vs. Houston Flour Mills, 68 Tex. 127, 3 S. W. 462; Sylvester vs. Downer, 20 Vt. 355- Eey et al. vs. Simpson, 22 How. 341 ; Chaffee vs. Jones, 19 Pick. 260; Spaulding vs. Putnam, 128 Mass. 363; Logan vs. Ogden, 101 Tenn. 392, 47 S. W. 489; Barr vs. Mitchell, 7 Oregon 347. See Post Sec. 128, 129. >3 Seymour vs. Mickey, 15 O. S. 515; Good vs. Martin, 95 U. S. 90; Ives vs. Bosley, 35 Md. 262. 1* Wright vs. Morse, 9 Gray 337 ; Way vs. Butterworth, 108 Mass. 509. It seems, however, that the Mass. Courts have modified the state- ment of the text to the extent ot admitting proof to rebut this pre- sumption where it appears that the promisor signed after delivery. Peckham & Spencer vs. Oilman & THE CONTRACT. » the paper with some third party, such promisor will be held as an Indorse!', unless a distinct agreement to be otherwise bound is shown." Such would be the position of the accommodation Indorser upon a note payable to the maker's own order, for such indorsement would, of a necessity, be inoperative until indorsed by the payee, thus placing the accommodation party in the situation of a second Indorser.^" Whenever the character of the indorsement is fixed to be that of Surety, Guarantor or Indorser, either by operation of a presumption or by proof, the suretyship feature of the con- tract controls its construction the same as in other relations of suretyship. §9. Irregular indorsement before and after delivery. An Irregular Indorser of negotiable paper before delivery stands in a different suretyship relation to the other parties than that of an irregular Indorser after delivery. The indorse- ment before delivery may be supported by the same considera- tion as the principal contract,^' whereas an accommodation indorsement after delivery cannot be supported by such con- sideration and must stand upon some new and independent consideration.'* An accommodation indorsement before de- livery generally results in the contract of a Surety and such indorsement after delivery generally results in the contract Co., 7 Minn. 446 ; Robinson vs. Bart- terfield Co., 55 O. S. 596, 45 N. E. lett et al., 11 Minn. 410. 1094. See Post See. 133. See also Massey vs. Turner, 2 i' Dillman vs. Nadelhoffer, 160 Houst. (Del.) 79; Benton vs. Wil- 111. 121, 43 N. E. 378; Favorite lard, 17 N. H. 503. Admr. vs. Stidham, 84 Ind. 423. 15 Rey et al. vs. Simpson, 22 How. is Pratt vs. Hedden, 121 Mass. 341; Good vs. Martin, 95 U. S. 95: 116; Joslyn vs. Collinson, 26 111. Greenough vs. Smeed, 3 O. S. 416. 62; Sawyer vs. Fernald, 59 Me. 500; isBlatchford vs. Milliken, 35 III. Badger vs. Barnabee, 17 N. H. 120; 434; Dubois vs. Mason, 127 Mass. Clopton, Exr. vs. Hall, 51 Miss. 37; First Natl. Bank vs. Payne, 111 482; Savage vs. First National Mo. 291, 20 S. W. 41; Chicago Trust Bank, 112 Ala. 508, 20 South. 398; & Savings Bank vs. Nordgren, 157 Beebe vs. Moore, 3 McLean 387; 111. 663; 42 N. E. 148; Hately vs. Briggs vs. Downing & Matnews, 48 Pike, 162 111. 241, 44 N. E. 441. Iowa 550. But coraoare Ewan vs. Brooks Wa- 10 THE LAW OF SURETYSHIP. of a Guarantor, except when made in pursuance of some prior agreement." This is brought about either by operation of law, or by the special form in which the contract is expressed. The main reason is that an indorsement after delivery is necessarily collateral in its nature, and the language employed to express such a contract will generally disclose a clear intent to make a guaranty. The presumptions referred to in the preceding section will not prevail where the fact of signing before or after delivery is shown. In Ohio, for instance, the presumption is that the ir- regular Indorser signed after delivery, and he is accordingly presumed to be a Guarantor. ^" If, however, he is shown to have signed before delivery he is held as Surety. ^^ In Missouri, he is presumed to be a Surety °^ but if tlie fact of signing after delivery is shown he is held as Guar- §10. Irregular Indorser held only as indorser. The more rational rule as to the irregular indorser is un- doubtedly that which has prevailed in Pennsylvania since 1855, the date of the enactment of the present Statute of Frauds, where such promisor is conclusively presumed to be a second Indorser,^* except in cases where the exact nature of the contract is set out in the instrument itself, or in some other writing showing the agreement upon which the indorseroeiit isMoies vs. Bird, 11 Mass. 436; Mechanics' Bank, 59 Pa. 144; Tern- Leonard vs. Wildes, 36 Me. 265. pie vs. Baker, 125 Pa. 634; 17 Atl. 20 Champion and Lathrop vs. 516. GriflSth, 13 0. 228; Robinson vs. The legislature of Pennsylvania Abell et al., 17 0. 36; Greenough in 1901 enacted a statute which vs. Smeed, 3 O. S. 418. provides that the irregular indorser, 21 Bright vs. Carpenter, 9 O. 139; signing in blank before delivery, if Seymour & Co. vs. Mickey, 15 0. the instrument is payable to the S. 515. order of a third person, is liable to 22 Schneider vs. Schiflfman, 20 Mo. the payee and all subsequent par- 571. ties, Except that when he signs for 2" Adams vs. Huggins, 73 Mo. the accommodation of the payee he -*PP- l^"- is only liable to subsequent parties. 24Hauer & MeNair vs. Patterson, Sen Post Sec. 129. 84 Pa. 274; Schafer vs. Farmers' & THE CONTRACT. 11 was made/^ Snch a rule, if uniform, would fix the status of negotiable paper, and would enable it to circulate more freely as money. Any other basis results in chaos and contra- dictions. To permit a party to negotiable paper to show with what intent or purpose he signed, upon the theory that he is re- butting some presumption, and thereby establishing the " real contract," has no reasonable foundation, is not scientiiic, and is a constant restraint upon, the usefulness of commercial paper. I If one signs in the form used by the regular Indorser, and in the place where the regular Indorser signs, he might well be held always to that contract and avoid all confusion. In 'New York he is presiuned to be a second Indorser, but if it be shown that he signed before delivery for the purpose of giving the maker credit with the payee, his position is shifted to that of a first Indorser, and so liable to the payee. ^* §11. Who may become promisors in suretyship. In general, any one who has the capacity to bind himself in any cqntract niay do so in suretyship. Such promisor must be of sound mind and under no disability, such as infancy or coverture, and the transaction must be free from fraud or duress. An insane person cannot bind himself by a suretyship con- tract even though the creditor who accepted him as such had no knowledge of the imsoundness of his mind.^' Such contract by an infant is voidable ^* and becomes valid only when ratified by him after reaching maturity, and with knowledge that he was not bound by the original transaction.^® Married women in some states may become promisors in 25 Eilbert vs. Finkbeiner. 68 Pa. 27 Van Patton & Marks vs. Beals 243. & Hammer, 46 Iowa 62. 26 Phelps vs. Vischer, 50 N. Y. as Harner vs. Dipple, 31 0. S. 72 ; 69. Such also appears, to he the Williams vs. Harrison, 11 S. C. rule in Wisconsin, Cady vs. Shep- 412; Curtin vs. Patton, 11 Serg. & ard, 12 Wis. 713; also in Indiana, R. 305. Brovs'ning et al. vs. Merritt et al., 29 Owen vs. Long, 112 Mass. 403; 61 Ind. 425. Fetrow vs. Wiseman, 40 Ind. 148. 12 THE LAW OF SUEBTYSIIIP. suretyship by reason of statutes giving to them the same power to contract, as men.'" When such statutes do not exist, they cannot become bound to pay the debt of another.'^ A corporation may bind itself in suretyship, if done in the regular course of its business,'* or whenever such a contract is necessary in order to carry out a power expressly conferred,*' but an officer of a corporation cannot bind the corporation as such promisor, unless in pursuance of a direct authority from the corporation/* A partnership can become a promisor in sviretyship by its firm name,"* but one partner cannot so bind such firm without express authority, except where such contract is within the usual scope of the business of the firm,'" or the other members of the firm afterwards ratify the contract by acting upon it.'^ The unauthorized signing of the firm name to such contract will bind the individual member of the firm who affixes such signature.'* A national banking corporation cannot contract in surety- ship,'" except that it may enter into such relation in the regular 30 Low Bros. & Co. vs. Anderson, 98 ; 2 Fed. 221 ; Arnot vs. Erie Ry. 41 Iowa 476 ; Mayo vs. Hutchinson. Co., 67 N. Y. 315. * 57 Me. 546. But see Davis vs. Old Colony U. 31 Gosman vs. Cruger, 69 N. Y. R., 131 Mass. 2£:8. 87. Si Culver vs. Reno Real Estate 32 Phila. & R. R. Co. vs. Knight, Co., 91 Pa. St. 367. et al., 124 Pa. St. 58 ; 16 Atl. 492 ; so Allen vs. Morgan, 5 Humph. Harrison vs. Union Pacific Ry. Co., (Tenn.) 624. 13 Fed. Rep. 522 ; Heims Brewing 3« Davis vs. Blackwell, 5 111. App. Co. vs. Flannery et al.. 137 111. 309 ; 32 ; Osborn vs. Stone, 30 Minn. 25 ; 27 N. E. 286; Standard Brewery vs. 13 N. W. 922; Avery vs. Rowell, 59 Kelly, 66 111. App. 267. Wis. 82; 17 N. W. 875; McQuewans But see Best Brewing Co. vs. vs. Hamlin, 35 Pa. St. 517. Klassen. 185 111. 37; 57 N. E. 20. 3? Crawford vs. Sterling, 4 Esp. The brewing co. executed a bond in 207; Sandilands vs. Marsh, 2 Barn, appeal for one of its customers. St, Aid. 673. Th appeal was in furtherance of ss Whitaker vs. Richirds, 134 Pa. its own business interests. Held to St. 191 ; 19 Atl. 501. be Ultra Vires, and that the surety 39 Nat. Bank of Gloversville vs. was not estopped from asserting Wells, 79 N. Y. 498; Knickerbocker such defense. vs. Wilcox, 83 Mich. 200; 47 N. 33 Green Bay and Minn. R. R. Co. W. 123. vs. Union Steamboat Co., 107 U. S. THE CONTRACT. 13 course of its business by transferring by indorsement commer- cial paper. The National Banking act gives to every bank the authority to exercise " such incidental povi^ers as shall be necessary to carry on the business of banking; by discounting and negotiating promissory notes, drafts, bills of exchange and other evidences of debt." *" This statute gives to banks an im- plied povsrer to become Surety or Guarantor whenever it be- comes necessary in negotiating commercial paper in the du<; course of their business.** §12. Disability by statute. Where a certain class of persons are prohibited by statute from entering into particular forms of suretyship, the promi- sor will be bound notwithstanding the prohibition. These stat- utes furnish a justification to public officers in refusing to accept such prohibited persons as Sureties and Guarantors, and, in some cases, render the promisor liable to proceedings in contempt of court for entering upon such contracts in de- fiance of statutes and rules of court, but the principle of estoppel will prevent an evasion of liability on the ground of the prohibition.*^ §13. Surety companies. The organization of corporations for the purpose of becom- ing Sureties and Guarantors upon bonds is sanctioned by the courts in all the states,*' and statutes regulating their accept- ance as sole Surety have been enacted in many states. The tendency of the court seems to be that the rule making a « U. 8. Rev. St., iiec. 5136. 22 N. W. 422; Ohio & Miss. Ry. vs. "Peoples Bank vs. Nat. Bank, Hardy, 64 Ind. 454; Kohn Bros. vs. 101 U. S. 183; Thomas vs. Bank, 40 Washer, 69 Tex. 67; 6 S. W. 551 Neb. 501; 58 N. W. 943. « Cramer vs. Tittle, 72 Cal. 12; *2 Holandsworth vs. Common- 12 Pae. 869; Gang vs. Carter I wealth, 11 Bush (Ky.) 617; State Aikoi), 77 Md. 1; 25 Atl. 663; Tra- vs. Findley, 101 Mo. 368; 14 S. W. vis vs. Travis, 48 Hun 343; 1 N. Y. Ill ; Cook vs. Caraway, 29 Kan. 41 ; S. 357: Steel' vs. Auditor ' General^ Tessier vs. Crowley, 17 Neb. 207; HI Mich. 381; 69 N. W. 738. 14 THE LAW OF SUBETYSHIP. Surety a favorite in the law in the matter of the construction of his contract does not apply to Surety Companies.** §14. Duress. A Surety or Guarantor who enters into his contract under duress is not boimd by it, and, in this respect, contracts in suretyship follow the rule of other contracts.*^ Whether or not the promisor is bound in case of duress practiced upon file principal alone has not been unifonnly settled. The argu- ment is advanced that Suretyship depends at all times upon the existence of a valid subsisting principal contract between the principal and creditor, and that to hold the promisor and not the principal violates this axiom of suretyship.*" Such reasoning appears eminently sound. Furthermore, if the promisor pays the debt his equitable right of indemnity could be enforced against the principal, and we get as a result the anomaly of the principal maintaining a successful defense against the creditor, and then responding to the same claim at the suit of the promisor. The weight of the authority is that duress of the principal will discharge the promisor except when he signs with knowledge of the duress.*' §15. Fraud in the making of the contract. (1) Fraud practiced by the creditor upon the principal in the making of the main contract stands upon the same reason- ing as the duress of the principal. If the principal could i4 Walker an. Holtzelaw et al., 57 People, 83 111. 331; Haney vs. Peo- S. C. 459; 35 S. E, Rep. 754. pie, 12 Colo. 345; 21 Pac. 39; Gra- See Post Chapter TX. ham vs. Marks, 98 Ga. 67; 25 S. E. islngeraoll vs. Roe. 65 Barb. 346. 931; Griffith vs. Sitgreaves, 90 Pa. ^a3' in consideration of the transfer, the promise to the •creditor will be binding though verbal.^' The statute cannot be pleaded to prevent tlie discharge of the debt by the one who in good conscience ought to pay, and who in the end must pay even if the statute were interposed, for if the promisor can de- fend against the creditor the latter could pursue his remedies against the principal, and he in turn enforce his contract with the promisor. In the second case of mere possession of the property of the principal by the promisor, it is generally conceded that the promisor may bind himself verbally to pay the debt of the ]irin- eipal, at least to the extent of the value of the property held by him. This may be said to rest upon the ground that it is merely a promise to pay the creditor what he otherwise would have to 52 Andrews vs. Smith, 2 C. M. & 410; Fullam vs. Adams, 37 Vt. 391; R. 627; Hughes vs. Lawson, 31 Aik. iloKenzie vs. Jackson, 4 Ala. 230; (J13; Ledbetter vs. MeGhees, 84 Ga. Power vs. Rankin, 114 111. 52; 29 227; 10 S. E. 727; Bott vs. Barr, N. E. 185. il.", Ind. 243; Mitts vs. McMorraii. =3 Hindmau vs. Langford, 3 Strob. ii4 Mich. 664; 31 N. W. r^2^. Smith 207; Meyer vs. Hartman, 72 111. V.;. Exchange Bank. 110 Pa. 508; 1 442; Carter vs. Zenblin, 68 Ind. Atl, 760; Pehlinger vs. Wood, 134 436; Justice vs. Tallman. 86 Pa. Pa. 517; Hilton vs. Dinsmore, 21 Me. 147. 48 THE LAW OF SUEETYSHIP. pay the debtor, and having the means to satisfy the promise iu his own possession, he cannot be injured by any fraud or per' jury in establishing such promise, and so the promise is not within tlie purpose of the statute. Such an arrangement is not merely a promise to pay the debt of another but to pay his own debt in a particular way/* §41. Release of liens and securities by creditor as basis of orig- inal promise. A release to the debtor of liens or securities held by the cred- itor, while furnishing an adequate consideration for a collateral promise of Guaranty or Surety, does not create an original un- dertaking on the part of the promisor and such promise must be in writing. '^^ If, however, the release of the liens or securities results iji some benefit to' the promisor, it is not within the Statute, and he may be held upon his verbal engagement even though the prin- cipal debtor also remains liable. Thus, where a merchant proni- 54 Dock vs. Boyd, 93 Pa. 92 ; Mc- Kenzie vs. Jackson, 4 Ala. 230; Wright vs. The State, 79 Ala. 262; Woodruff vs. Scaife, 83 Ala. 152; 3 South. 311; Hammil vs. Hull, 4 Colo. App. 290; 35 Pac. 927; Bald- ivin Coal Co. vs. Davis, 62 Pae. Sep. (Col.) 1041; Davis vs. Banks, 45 Ga. 138; C. & W. Coal Co. vs. Liddell, 69 111. 639; Putney vs. Farnham, 27 Wis. 187; Calkins vs. C.iandler, 36 Mich. 320. See Richardson vs. Williams, 49 5Ie. 558, where it is held that the express assent of the principal must be shown in order to hold the prom- isor upon his verbal agreement to pay the debt out of a fund in his hands belonging to the principal. See also Murphy vs. Renkert, 59 Tenn. 397; Birchell vs. Neaster, 36 0. S. 337. 55 Nelson vs. Boynton, 3 Met. 396; Richardson vs. Robbins, 124 Mass. 105; Corkins vs. Collins, 16 Mich. 478; Cowenhoven vs. Howell, 36 N. J. L. 323; Mallory vs. Gillett, 21 N. Y. 412; Bunneman vs. Wag- ner, 16 Ore. 433; 18 Pac. 841; Gray vs. Herman, 75 Wis. 453; 44 N. W. 248; Bray vs. Pareher, 80 Wis. 10; 49 N. W. 111. In Clark vs. Jones, 85 Ala. 127; 4 South. 771, an owner of a build- ing upon which a sub-contractor was about to place a lien verbally promised the sub-contractor to pay the amount due him from the prin- cipal contractor if he would not file his lien. Held that such promise was voidable under the statute. To the same effect see W.irner vs. Wil- loughby, 60 Conn. 468; 22 Atl. 1014; Hahn vs. Maxwell. 33 Til. App. 261; Vaughn vs. Smith, 65 Iowa 579; 22 N. W. 684. THE STATUTE OF FEA0DS. 49> ises a wareliouscman to pay storage charges upon inercliandise which he is about to buy for immediate shipment, providing tlie ■warehouseman waives his lien for the charges and ftermits tho shipment to go forward at once, the promise need not be in writ- ing ;'" or where an execution is placed upon property, a verbal promise made to the creditor, by one who claims to own the property by purchase from the execution debtor, that he will pay the debt if the execution is released, will be binding.^' The same result, tliough based upon a different reason per- haps, is reached where tlie consideration for the promise is the transfer to the promisor of liens or securities held by the cred- itor upon the property of the debtor. This amounts to a pur- chase of the securities and the transaction is none the less bind- ing because the price paid is the assumption of the debt of another.^* §42. Promise to pay pre-existing liability of promisor not within the statute. If the ultimate purpose of tlie promise is to discharge the ob- ligation for which the promisor is already bound it is not within the statute, even though the concurrent obligation of another for the same debt is thereby extinguished. The substance of the transaction will prevail against the formy and although the promise is to pay if the other does not, it falls outside the statute in case the debt is in fact the debt of the- promisor. This rule is illustrated by the common ease of sales in which- the vendee gives the note of a third party in payment and ver- bally guarantees the maker. ~No good reason can be urged why the debtor should escape his liability merely because his promise B«Prout vs. Webb, 87 Ala. 59.3; White, 71 111. 287; Hodgins vs. 6 Sputh. 190. Heaney, 15 Minn. 185; Wills vs. 0' Williamson vs. Rexroat, 55 111. Brown, 118 Mass. 137. App. 116. 5s Castling vs. Aiibert, 2 East See also Luark vs. Malone, 34 325 ; Allen vs. Thompson, 10 N. -H. Ind. 444; Weisel vs. Spence, 59 32; Humphreys vs. St. Louis, 1. M. Wis. 301; 18 N. W. 165; Blount & S. Ry. Co., 37 Fed. Rep. 307. vs. Hawkins. 19 Ala. 100; Scott vs. 50 THE I.AW OF SUEETYHIIII^. was made in siieli form that when carried out it extinguishes the debt of another."" For the same reason a verbal acceptance is not within the Statute, where the acceptor holds funds of the drawer to meet the bill ; for it is merely a promise by the acceptor to disehai'ge his obligation to the drawer by paying his creditor."" An owner of land upon which there are two mortgages exR- cuted by some prior owner, verbally promises the second mort- .gagee to pay off the first mortgage in consideration of the second mortgagee releasing him from personal liability on his debt. The second mortgagee if this arrangement were carried out being advanced to a first lien holder on the land. Such a promise, though to pay and extinguish a debt created by another, is not within tlie Statute, since the promisor has al- ready become liable for tlie first mortgage by reason of his own- ership of the land."^ 59 Brown vs. Curtiss, 2 JS. Y. 225 Cardell vs. McNiel, 21 N. Y. 330 ilalone vs. Keener, 44 Pa. 107 Barker vs. Scudder, 56 Mo. 272 Dyer vs. Gibson, 16 Wis. 580; Wy man vs. Goodrich, 26 Wis. 21; Mo bile & Girard R. R. Co. vs. Jones, 57 Ga. 198 ; Bryant vs. Rich, 104 Mich. 124; 62 X. W. 146. In Dows vs. Swett, 120 Mass. 322, the promise was to guarantee fi note which a third party execut- ed direct to the creditor in settle- ment of the promisor's debt. Such a, ease seems to involve all the prin- ciples upon which the cases rest in which the promisor is the owner of the note and transfers it to the cred- itor for his own debt with a verbal CT'iarantee. In both cases, the sub- stance of the transaction is to pro- vide for the payment of his own debt. The Court, however, held this promise to be collateral and within the Statute of Frauds. 6 "Grant vs. Shaw, 16 Mass. 341; Spaulding vs. Andrews, 48 Pa. 411; Nelson vs. First Nat. Bank of Chi- cago, 48 111. 36. 61 Teeters vs. Lamborn, 43 0. S. 144; 1 N. E. 513. See also Darst vs. Bates, 95 111. 493; Besshears vs. Rowe, 46 Mo. 501; Bateman vs. Butler, 124 Ind. 223; 24 N. E. 989; Fain vs. Turner, 96 Ky., 634; 29 S. W. 628; Comstock vs. Norton, 36 Mich. 277; Dodge vs. Zimmer, 110 N. Y. 43; 17 N. E. 399; Malone vs. Keener, 44 Pa. 107; Landis vs. Royer, 59 Pa. 95; Dorwin vs. Smith, 35 Vt. 60; Murphey vs. Gate^, SI Wis. 370; 51 N. W. 573. THE STATUTE OF FEAUDS. 51 §43 Assumption of vendor's debt as part of purchase price not within the statute. The rule that a debtor may not invoke the Statute of Frauds as a protection against his own debts is further illustrated in those transactions in which a purchaser of property agrees with the vendor to assume and pay certain debts of the vendor as a part of the purchase price. This rests not only upon the prop- osition already considered, that a promise to a debtor to pay his debt is not within the statute,®^ but also upon the further fact that it is the promisor's own debt which he agrees to pay by ex- tinguishing the debt o£ another."^ Such verbal promise made to the creditor is valid for the same reason,®* and such promise if made only to the debtor is enforceable by the creditor for whose benefit it is made.''^ §44. Contract of del credere agent not within the statute. An agent or factor selling goods of his principal on a del credere commission, who undertakes to guarantee that the per- sons to whom he sells will perform their contract, occupies a po- sition analogous to one who buys goods and offers the note of a third party in payment guaranteeing the maker. In the latter ease, the promisor guarantees that the thing which he offers in exchange for his obligation shall be equal in value to what it purports to be. In the del credere contract he guarantees, in consideration of his employment and extra commissions, that 62 Ante Sec. 31. 11 S. E. 977; Hooper vs. Hooper, 32 «3 Eabbermann vs. Wiskamp, 54 W. Va. 526 ; 9 S. E. 937 ; Green vs. III. 17!); Neagle vs. Kelly, 146 111. Hadfield, 89 Wis. 138; 61 N. W. 460; 34 N. E. 947; MeCasland vs. 310. Doorley, 47 111. App. 513; Hodg- «» Mason vs. Hall, 30 Ala. 599; kins vs. Jackson, 70 Ky. 342; Len- Sacramento Lumber Co. vs. Wag- nox vs. Brower, 160 Pa. 191; 28 ner, 67 Cal. 293; 7 Pae. 705; Boals -HI. 839. vs. Nixon, 26 111. App. 517; Carter 6 4 Todd vs. Tobey, 29 Me. 219; vs. Zenblin. 68' Ind. 436 ; Stariha vs. Eobbins vs. Ayres, 10 Mo. 538; Greenwood, 28 Minn. 521 ; 1 1 N. W. First Nat. Bank vs. Chalmers, 144 76; Wynn vs. Wood, 97 Pa. 216; X. Y. 432; 39 N. E. 331; Keyes vs. Putney vs. Farnham, 27 Wis. 187; Allen, 65 Vt. 667; 27 Atl. 319; Green va. Richardson, 4 Colo. 584. Skinker vs. Armstrong. 86 Va. 101 1 ; 52 THE LAW 01'' SUEETYSIIIP. the result of his sale sliall be of a certain value to his principal. In both cases the consideration moves from the creditor to iie promisor who assumes a liability in furtherance of his own interests and the statute does not Apply/* §45. Pleading transactions within the statute — Plaintiflf's al- legations. A petition or declaration, upon a contract required by the statute to be in writing, need not aver that such contract is in writing. It is sufficient to set out that a valid agreement was made, and it will be presumed to be in lawful fonn until the contrary is shown. A compliance with the requirements of tlie statute is a matter of proof and not of pleading. The statute has not altered the rules of pleading so far as the plaintiff is con- cerned. "' §46. Pleading statute as a defense. A demurrer to the plaintiff's bill or petition will not raise the ■question of a non-compliance with the statute except where the plaintiff affirmatively pleads facts which show a verbal con- tract."* If, however, the plaintiff's pleading shows a non-com- pliance with the statute, the defense of the statute may be in- 9« BuUowa vs. Orgo, 57 N. J. Eq. 91 Mo. 647; 4 S. W. 107; Hinchman 428; 41 Atl. 494; Osborne vs. Bak- vs. Rutan, 31 N. J. L. 496; Marston er, 34 Minn. 307; 25 N. W. 606; vs. Swett, 66 N. Y. 206; Heading- Suman vs. Inman, 6 Mo. App. 384; ton vs. Neff, 7 0. 231; Reinheinior Bradley vs. Richardson, 23 Vt. 720; vs. Carter, 31 O. S. 579; Shields vs. Sherwood vs. Stone, 14 N. Y. 267; Titus, 46 0. S. 541; 22 N. E. 717; Guggenheim vs. Rosenfeld, 68 Tenn. Eeker vs. Bohn, 45 Md. 278. 533. Oontra (by statute) — Langford «7 Dexter vs. Ohlander, 89 ALi. vs. Freeman, 60 Ind. 46; Waymire 262; 7 South. 115; Barnard vs. vs. Waymire, 141 Ind. 164 ; 40 N. E. Lloyd, 85 Cal. 131; 24 Pac. 658; 523; Burden vs. Knight, 82 Iowa Hancock vs. Council, 96 Ga. 778; 584; 48 N. W. 985. 22 S. E. 335; Porter vs. Drennan, nsStrouse vs. Elting, 110 Ala. 13 Brad. (111. App.) 362; Speyer 132; 20 South. 123; Switzer vs. vs. Desjardins, 144 111. 641; 32 N. Skiles, 8 III. 529; Murphy vs. Stc^ll, E. 283; Elliott vs. Jenness, 111 43 Tex. 123. Mass. 29; Mullaly vs. Holden, 123 Contra — Babeock vs. Meek, 45 Mass. 583; Sharkey vs. .McDermotl, Iowa 137. TilE STATUTE OF FEAUDS. 53 tei'posed by demurrer."" But the Statute of Frauds will not be available as a defense unless pleaded. '" This rule will generally be applied, even in cases where th» bill or petition shows atHrma- tively a non-compliance with the statute. If the defendant does not demur or plead the statute he will waive the defense.'^ A request to the court to charge is not a pleading, and the issue of the statute cannot be put into the record in this way,'" nor by request for special findings.'^ Even though the defend- ant admits in his answer the making of the contract, he may lune tlie protection of the statute if the defense is pleaded.''' o« .Randall vs. Howard, 2 Black (U. S.) 585; Boyd Tobacco Ware- house Co. vs. Terrill, 76 Ky. 463; Howard vs. Brower, 37 O. S. 402; Macey vs. Childress, 2 Tenn. Ch. 4:38. '"> Lyon vs. Crisaman, 22 N. C. ■268; Marston vs. Swett, 66 N. Y. 206; Wells vs. Monihan, 129 N. Y. 161; 29 N. E. 232; Bless vs. Jen- kins, 129 Mo. 647; 31 S. W. 938; Graff vs. Foster, 67 Mo. 512; Doug- lass vs.- Snow, 77 Me. 91 ; C. & W. Coal Co. vs. Liddell, 69 111. 639: Osborne vs. Endicott, 6 Cal. 149; Wiseman vs. Thompson, 94 Iowa 607; 63 N. W. 346; Guynn vs. Mc- Cauley, 32 Ark. 97 ; but see Hockcr vs. Gentry, 60 Ky. 463; Boston Duck Co. vs. Dewey, 6 Gray 446. Also Billingslea vs. Ward, 33 Md. 48, where it is held that it is not necessary for the defendant to plead the statute if the plaintiff sets up an agreement which would be void if not in writing, and that the plaintiff must establish such con- tract by written evidence in mak- ing his prima facie case. Undler the Ohio code the issue of a non-compliance with the statute may be raised by a general denial of the petition. Birchell vs. Neas- ter. 36 0. S. 331. Tijjatiell vs. Matot, 58 Vt. 271; 5 Atl. 479; Carpenter vs. Davis, 72 111. 14. 72 Warren vs. Dickson, 27 111. 115; Brigham vs. Carlisle, 78 Ala. 243; Cosand vs. Bunker, 2 S. D. 294; 50 N. W. 84. '3 Porter vs. Wormser, 94 N, Y. 431. 74 Burt vs. Wilson, 28 Cal. 632; HoUingshead vs. McKenzie, 8 Ga. 457; Taylor vs. Allen, 40 Minn. 433; 42 N. W. 292; Thomas vs. Churchill, 48 Neb. 266; 67 N. W. 182; Ashmore vs. Evans, 11 N. J. Eq. 151; Holler vs. Eieliards, 102 N. C. 545; 9 S. E. 460. It has been urged that the de- fendant's admission of the contract removes all danger of fraud and per- jury, and the purpose and intent of the statute being thus fully com- plied with, the pleading of the stat- ute IS wholly technical and should not prevail. Judge Story suggests further that the answer of the de- fendant being a writing signed by him is a complete compliance with the statute. (Story on Eq. Jur. Sec. 755.) This view was, how- ever, strongly dissented from in Winn vs. Albert, 2 Md. Ch. Dec. 169. 54 TJIE LAW OF SUEETYSIIIP. §47. Lex fori — The statute of frauds remedial. Wherever the language of the statute imposes a limitation merely upon the right to bring an actibn on verbal contracts within its provisions, the settled rule of England and the great weight of authority in this country is, that in actions oh such contracts the law of the forum where the action is brought will prevail over the law of the place where tlie contract is made, for k in such ca^es the Statute of Frauds raises no question _of the ^ vfklidity of the contract but it stipulates the kind of evidence ni3cessary to maintaih an action upon it. In the leading English case of Leroux vs. Browii '° a verbal, contract, within the Statute of Frauds, made in France, ajid valid by the laws of France was sued upon in England, and the decision of that case holding that the action could not be main- tained is the established rule of England.'" The English rule has been followed with approval by many American couits.''' T5 12 C. B. 801. be proved is no part of the con- 's Bain vs. Whitehaven, 3 H. L. tract itself, but its admission or re- Cases 1. jeetion becomes a part of tjie pro- " Dower vs. Chesebrough, 36 ceeding on the trial, ]where its corn- Conn. 39; Townsend vs. Hargrave, petency and svtflBciency must be de- ll S Mass. 325; Emery vs. Burbank, termined. When the required evi- 163 Mass. 326; 39 N. E. 1026; Bird dence is lacking the courts must vs. Monroe, 66 Me. 337. refuse the enforcement of the con- Heaton vs. Eldridge & Higgins, 56 tract. And it seems clear, that 0. S. 101, Williams, J.: "This such a statutory regulation preserib- statute, in plain terms, forbids the ing the mode or measure of proof maintenance of an action in any of necessary to maintain an action or the courts of this State, on any defense, pertains to the remedy, and agreement which, by its terms, is constitutes a part nf the procedure not to be performed within a year, of the forum in administering the unless the action is supported by remedy." the required written evidence. The But see Cochran vs. Ward, 5 Ind. "••■idence by which a contract' shall App. 89 ; 29' N. E- 795. CHAPTER III COMMERCIAL GUARANTIES. Scf. 48. Scope of the Subject. .Sec. 49. CoiLstTuction of Contracts of Guarantj'. Sec. 50. Construction of Equivocal or Ambiguous Words. . Stc. 51. General Guarant}'. See. 52. Special Guaranty'. Sec. 53. Guarantor for One Principal not Held for Joint Principals. Sec. 54. Guarantor for Joint Principals not Held for One. Sec. 55. Retrospective Guaranties. Sec. 5(5. Guaranty vi'ithout Knowledge of Principal Debtor. Sijc. 57. Considei-ation. Sec. 58.' Form of Guaranty, Sec. ,.59. Continuitrg Guaranties. Sec. 00. Same Subjett Continued. Sec. 61. Absolute Guaranties. Sec. 62. Guaranty of Collectibility. Sec. 63. Test of Due Diligence. Sec. 64. Notice to Guarantor of Acceptance of the Guaranty and Advance- ments Thereon. Sec. 65. Federal Court Rule as to Xotice of Acceptance of Guaranty. Sec. 66. Rule of tha State Courts as to Notice of Acceptance of Guaranty, tScc. 67. . Notice to Guarantor of Default of Principal. Sec. 68. Cases in Which Notice to Guarantor of Default is Necessary. Sec. 69. Joint and Several Guaranties. Sec. 70; Guaranty Covers Interest. Sec. 71. Revocation of Guaranty. §48. Scope of the subject. The term Commercial Guaranty is used here to describe those transactions wherein one person agrees with another to indem- nify him if lie will give credit and faith to a third person.'^ 1 There is np special significance a judicial or official bond, or a guar- in the use of the word " eommer- anty against the negligence or tort eial " in this connection. The con- of the^ principa,!.- tract of guaranty in a mercantile The technical contract of the or .business transaction ■ is , no dif- Guarantor is, , however, rarely met, fprent than a guaranty against the if at all, outside of " commercial default of the principal in any Guaranties." other relation, such as a bail bond, ■ ' " ■ " ■ 55' 56 THE I-AAV OF SUKETYSHTP. The special contract of tlie Guarantor as distinguished from the Surety and otiier forms of Suretyship is the subject of this chapter. ' The principal field of this branch of Suretyship is that of sales wherein letters of credit or guaranty constitute the in- duccoicnt for the owner of merchandise to part with his posses- sicjn and o\vnership to another. It also includes transactions whereby credit is obtained for the maker of negotiable paper. This class of mercantile instruments axe useful and important mediums of commercial intercourse aud a spirit of liberality pervades the law of this subject to the end that these convenient aids of commerce may not, by reason of strict and technical con structions, become obstacles aud hindrances to business transac- tions rather than a benefit." Letters of credit are frequently executed without the aid of legal counsel, and the extent to which the Guarantor is bound or the seller protected is many times not easily determined from the language employed. These contracts also often lack the evidences of deliberation which characterize some other forms of Suretyship, such as bonds or covenants under seal, and are frequently interspersed with signs and trade expressions which can be interpreted only by careful attention to the circumstances under which the transaction arises. §49, Construction of contracts of guaranty. It is of the highest importance that such construction be placed upon, the common and ordinary instruments of commerce as will enable them to serve the purpose for which they are put 2 Ante Sec. 6, " Surety and Guar- See also Gridley vs. Capen, 72 antor distinguished." 111. 11; Merchants Nat. Bank vs. "A guaranty, in its enlargefl State Bank, 93 Iowa 650; 61 N. sense, is a promise to answer for W. 1065. the payment of some debt, or the ' Lawrence vs. MeCalmont, 2 I'.erforraance of some duty, in the How. 426; Rouss vs. Creglow, 103 2. COMMEItClAL UUAHANTIES. St in circulation. The natural and accepted meaning of words will in general be a fair basis of interpretation, yet it niay happen that both tlie parties use the words with some special meaning, and in such a case to give the words the force of their general sense would not express the intent of either party. It would be manifestly unfair to permit the Guarantor to defend against his liability by standing upon som'e interpreta- tion which neither party intended when the contract wlas entered into, and equally unfair to permit the creditor to impose •bur- dens which were not in the eontfemplation of either party, al- though in each case only the usual and ordinary meaning of the words is being urged. A more rational rule is that the language employed by the parties be interpreted according to its generally accepted mean- ing, except when it is ascertained that the parties themselves intend some other meaning. This is called, a " practical con- struction " of contracts, and where the language used is unam- biguous, has sometimes been considered as an innovation upon the familiar limitations imposed on parol evidence to vary written instruments, and also where such contract is one of iiiiaranty it would seem to bo opposed to the elementary prin- ciple of Suretyship, which forbids the imposition of any liabil- ity by parol. But giving to a contract the same construction which the parties themselves have given it, is establishing the real contract rather than varying it by parol. Such construction by the parties themselves may be ascer- tained by their acts and conduct in the performance of tlie ■<-iintract as well as by their declarations. The use of the declarations and conduct of the parties, not lecited or referred to in the written instrument, as proper aids to the court in eonstniing such instrument, is not prohib- ited either by the law of evidence or Suretyship. The law ■cannot reasonably impose obstacles, under the guise of rules ■ecial when it is addressed to a particular person, firm or corporation, and when so addressed only thfr promisee named in tlie instrument acquires any rights, under it." The very strict rules of construction of written instruments which prevent the use of parol proof to vary their recitals, will not be relaxed even to correct a mistake in the name of the promisee so as to enable some other person than the one named in the instrument to maintain the action. One making advances under such special guaranty will not be permitted to shoM' that it was intended for him though by ' mistake addressed to another.^' A special guaranty implies a trust and confidence in a partic- ular i)erson and such guaranty is not assignable until a right of action has arisen thereon. The right of action upon a spe- cial guaranty when fixed may be assigned to another.^' A stranger to the contract who make® the advances cannot by thus substituting himself for the real promisee create any legal obligation against the guarantor. There is lacking the neces- .sary privity of contract to bind the promisor. It is held that a guaranty addressed to two persons cannot l)e acted upon by one of the two named,'" and for the same IS Central Trust Co. vs. National vs. Lee, 3 East. 484; Wright vs. Bank, 101 U. S. 68; Tuttle vs. Bar- Russell, 2 W. Bl. 934; Barnett vs, tholomew, 12 Met. 452; Walton vs. Smith, 17 111. 565; Barker vs. Park- Mascall, 13 M. & W. 452. er, 1 Durn. & E. 287. Contra — Nat. Ex. Bank vs. McBl- i' Grant vs. Naylor, 4 Cranch fresh, 37 R. E. Eep. (W. Va.) 541. 224; Taylor vs. MeClung's Ex., 2 18 Taylor vs. Wetmore, 10 O. 491; Houst. (Del.) 24. Evansville Nat. Bank vs. Kaufmann, is Robbins vs. Bingham, 4 Johns.- 93 N. )[. 273; Johnson vs. Brown, 476; Evansville Nat. Bank vs. Kauf- 51 Ga. 498; Nat. Bank of Peoria mann, 93 N. Y. 273. vs. Diefendorf , 90 111. 396 ; Mitchell i» Smith vs. Montgomery, 3 Tex. vs. Railton, 45 Mo. App. 273; Dry 199; Penoyer vs. Watson, 16 Johns.- vs. Davy, 10 Ad. & Ell. ;iO; Strange lOP In Walsh vs. Bailip. 10 Johns, COMMERCIAL CiUAKASfTIES. 65 reasons a guaraxity addressed to one will not be held for advance- ments made by that one and another. §53. Guarantor for one principal not held for joint principals. A contract of guaranty to stand good for the default of one person cannot be enforced if the advances are made to the principal named in the instrument jointly with another. To hold the Guarantor for such substituted parties'would not only involve a variance of the original contract, but the risk of the undertaking is thereby materially increased. The promisor might be willing to become responsible for the acts of one in whom he had confidence and yet not willing to assume obligations for others. The question here invoh'od commonly arises where the principal in the letter of credit associates 'with himself a partner, and the creditor thereafter makes advances relying on the guaranty. The g\iarantor is discharged from liability for the partner- ship advances.'" §54. Guarantor for joint principals not held for one. A guarantor of a joint enterprise iiiay stand strictly upon his' contract and will not be liable except for advancements made to- the principals jointly, who are named in the instniment. A change in a partnership by the deatli or retirement of one 180, the guaranty ^Yas addressed to In Palmer v?. Bagg, 56 N. Y. A who did not, however, make the 523, the principal after the cxecu- advancemsnts, but directed the cus- tion of the contract of guaranty tomer to B, himself guaranteeing associated \Yith himself a partner' payment to B. Held that A could with the knowledge of the creditor., not recover from the Guarantor. Advances were ther>;after made to> 20 Parham Sew. Mach. Co. vs. the principal in liis individual name Brock. 113 Mass. 194; Bell vs. Nor- and charged to him as sole principal wood, 7 La. 95; Conn. Mutual Life on the books of the creditor. Al- ius. Co. vs. Scott, 81 Ky. 540; White though delivered at the place of bus- Sew. Mach. Co. vs. Hines, 61 Mich. iness of the firm they were not so 423; 28 N". W. 157; Montefiore vs. delivered on the credit of the firm. Lloyd, 15 J. Scott (X. S.) 203; Lon- Held that the Guarantor was liable, don Assurance Co. vs. Bold, .6 Ad. & Ell. fX. S.l 514. 66 THE LAW OK SUEETYSIilP. partner will discharge the giiaraiitor' of such firm from all fur- ther liability.'' The Guarantor will be discharged even though the creditor made the advances mthout knowledge of the change in tlie fij-m." The result as to the Guarantor is not affected by the fact that the members of the firm are estopped as to the creditor from claiming a dissolution by reason of their failure to give notice. Such estojDpel will not apply as against the Guarantor who can only be held to the strict letter of his contract and as to him the firm is dissolved. §55. Retrospective guaranties. Whether or not a guaranty is retrospective or is merely pros- pective depends entirely, upon the form of the contract. It is easily possible to make such contract one or tbe othter or both, but an undertaking of guaranty will not be construed to have a retroactive effect except it appears by express words or by nec- essary implication to have clearly been the intention of the parties to embrace past transaotions. It is no defense tO' a Guarantor whose contract includes past transactions that he had no knowledge of the existence of any past indebtedness or that he had been misled by the representa- tions of tifie principal as to such past indebtedness. If .his con- tract fairly imports a guaranty of past as well as future ad- vances he will be liable.^' Words of genera] import will not l">e construed as retrospec- tive although susceptible of such meaning. If indefinite expres- sions are used they will be presumed to refer only to future transactions."* -1 Ciemer vs. HifiKinson. 1 Mnss. The same principle is involved 323; Holland vs. Teed, 7 Hare 50; in Manhattan Gas Light Co. vs. Ely, Cosgrove Brewing & Malting Co. vs. .39 Barb. 174. Starrs, 5 Ont. 189; Simson vs. 23 People vs. Lee, 104 N. Y. 442; Cooke, 8 Moore 588: Hawkins vs. 10 N. E. 884; Harwood vs. Kiersted, New Orleans Print. & Pub. Co., 29 20 111. .367. La. An. 1.34. 2* Morrell vs. Cowan, L. R. 7 Ch. 22 Byers vs. Hickman Grain Co., Div. 1.51; Weed et al. vs. Chambers, S4 N. W. Rep. (Iowa) 500. 40 Up. Can. (Q. B.) 1; Weir Plow COMMEECIAL GUABANTIES. 67 §56. Guaranty without knowledge of principal debtor. No privity of contract is necessary between the principal and the guarantor. A contract of guaranty made witli the creditor without the knowledge of the principal will bind the guarantor. ^^ Gesneral contracts of inde^mnity to merchants against loss from the insolvency of customers, called Guaranty Insurance, are usually without, tlae knowledge of the customer, but if based upon a consideration are valid obligations in Suretyship. Such a relation involves all the equities and conditions of a Surety- ship procured by the principal for his own accommodation, and the guarantor may have the same benefit from these equities in the matter of his defense.^'' §57. Consideration. The contract of gaiaranty will not be binding without a con- sideration."' But the consideration may arise from several sources. The principal or the creditor may pay the guarantor a money consideration for his risk. If the Suretyship is concurrent with the principal contract the same consideration which supports the principal contract will support the Suretyship.'* Co. vs. Walmsley. 110 Ind. 242; 11 Hughes vs. Littlefield. 18 Me. 400. X. E. 232. =<; Peake vs. Dorwin Est., 25 Vt. In Brooks vs. Baker, 9 Daly (N. 28. Y. C. P.) 398, the guaranty was -t Ante See. 16. upon u lease and the langviage em- -' Erie Co. Savings Bank vs. Coit, ployed was " should any default be 104 N. Y. 532; 11 N. E. 54; Paul vs. made in the payment of said rent" Stackhouse, 38 Pa. 302; Hippach v.s, then the obligation is " To pay any Makeever, 166 111. 136 ; 46 N. E. deficiency which may be due.'" At the 790; Hirseh vs. Chicago Carpet Co., time of the execution of the guaran- 82 111. App. 2,34; Lennox vs. Mur- ty. the- lessee had already entered phy, 171 Mass. 370; 50 N. E. 644; upon his term and was at that time Osborne vs. Lawson, 26 Mo. App. in arrears for rent. Held that the 549 ; Kennedy, etc.. Co. vs. S. S. past due rent was not covered by Const. Co., 123 Cal. 584; 56 Pac. the guaranty. 457 ; Heyman vs. Dooley, 77 Md. -^-^Solary vs. Stultz, 22 Fla. 263; 162; 26 Atl. 117. 68 THE LAW OF SUEETYSIIIP. It is not necessary that the guarantor should derive any ben- efit from either the principal contract or the guaranty. A ben- efit to the principal debtor is a sufiicient consideration.^* Such a consideration is found in an agreement for extension of time of payment or a forbearance to sue/" Such agreements to forbear must, however, be carried outj otherwise the benefit contracted for fails and the consideration fails/^ In England the rule appears to be that an actual forbearance to sue in pursuance of a request from the principal will be suffi- cient consideration to support the guaranty, although the creditor makes no binding agreement to that effect.^' Such a i-ule may be supported perhaps upon the ground of estoppel, since the party has had all the benefits of his proiDosal he should not escape its burdens. The American courts ha^e not, however, conceded this doctrine and have generally held otherwise.^^ So again an. agreement to withdraw a suit will 29 Brokaw vs. Kelsey, 20 111. 304 ; McDougald vs. Argonaut Land, etc., Co., 117 Cal. 87; 48 Pae. 1021; Rob- ertson vs. Findley, 31 Mo. 384; Sav- age vs. Fox, 60 N. H. 17. 30 Coffin vs. Trustees, 92 Ind. 337 ; Dahlman vs. Hammel, 45 Wis. 466; Lininger vs. Wheat, 49 Neb. 567 ; 68 N. W. 941 ; i'eterson vs. .Russell, 62 Mmn. 220 ; 64 N. W. 555 ; Feath- erstone vs. Hendriek, 59 111. App. 497 ; Martin vs. Black, 20 Ala. 309 ; Davies vs. Funston, 45 Up. Can. (Q. B.) 360; Lee vs. Wisner, 38 Mich. 82. The agreement to extend the time or' the forbearance to sue must be for a definite time, otherwise no spe- cial benefit results to the debtor, since the creditor may sue at tiny time and hence no consideration for the guaranty. It has been held, however, that an extension for a" " convenient time " is a sufficient benefit to the debtor to amount to it consideration. Sadler vs. Hawkeg, 1 RoUe. Abr. 27, pi. 49. See also Steadman vs. Guthrie, 4 Met. (Ky.) 15.1. In Traders' National Bank vs. Parker, 130 N. Y. 415, the extension was for such time as would be neces- sary to enable the parties to the agreement to travel to acother state and make an investigation into the affairs of the debtor. No definite time was fixed, but the agreement bound the creditor to forbear a rea- sonable length of time to enable tlie parties to perform the acta stipulat- ed, and such extension being in iaet carried out, the consideration was held good. See also Moore vs. McKenney, 83 Me. 80; 21 Atl. 749. 31 Cobb vs. Page, 17 Pa. 469. 32 Crears vs. Hunter, 19 Q. B. Div. 341. 33 Webbe vs. Romona Oolitic Stone Co., 58 111. App. 226 ; Shupe vs Gal- COMMEECIAL GUARANTIES. G9 isupport a guaranty/'' or a release to the principal of securities held by the creditor/^ It is not necessary tliat the mutual promise of the principal and creditor out of which the consider- ation arises shall result in some benefit to the principal. If the creditor changes his position to his detriment it is of itself snfKcient consideration to bind the guarantor. §58. Form of guaranty. The essential requisite of a contract of guaranty is that the language must amount to a promise. Letters of recommenda- tion or introduction coiUaining advice or opinions in reference to the financial ability or the character of another are not guar- anties, and the fact that the one to whom such letters are ad- dressed acts upon the recommendation imposes no obligation upon the writer. It is not necessaiy to use the words " prom- ise " or " guaranty " but words must be used which clearly import a promise. A mere request to the creditor to make ad- vances to the debtor does not imply a promise to guarantee pay- ment, *" nor an expression of an opinion that the debtor is good." If, howe'ver, the obligations of third persons are accepted in settlement of debt any expression of opinion by the one trans- ferring them upon which the creditor relies, such as the note or bill is " safe " or " good " will amount to a guaranty,'* and where one wrote to a merchant requesting him to sell goods to braith, 32 Pa. 10; College Park Elec. 36 Bushnell vs. Bishop Hill Col- Belt Line vs. Ide. 15 Tex. Civ. App. ony, 28 111. 204 ; Thomas vs. Wright, 273; 40 S. W. 64. 98 K. C. 272; 3 S. E. 487. But see Breed vs. Hillhouse, 7 37 Case vs. Luse, 28 Iowa 527 ; Conn. 523, holding that actual for- Kimball vs. Roye, 9 Rich. Law (S. bear.ince to sue was prima facie evi- C. ) 295; Eaton vs. Mayo, 118 Mass. dence of an agreement by the credit- 141 ; Einstein vs. Marshall, 58 Ala. or to forbear. 153; Baker vs. Trotter, 73 Ala. 277; 3* Worcester Savings Bank vs. Switzer vs. Baker, !).") Cal. 539; 30 Hill, 113 Mass. 25. Pac. 761; Hardy vs. Pool, 41 N. C. 35 Koenigsberg vs. Lennig. 161 Pa. 28. 171; 28 Atl. 1016; Barney vs. 3S gturges vs. Cireleville Bank. 11 Forbes. 118 N Y. 580; 23 N. E. 0. S. 153; Union Nat. Bank vs. 1st 890; Killian vs. Ashley, 24 Ark. Nat. Bank, 45 0. S. 236; 13 N. E. 511. 884. 70 THE LAW OF SUEETYSIilP. another " with assurance that any contract of his will and shall be promptly paid " it was held that the parties will be presumed to have intended a guaranty/" §59. Continuing guaranties. All guaranties must be either temporary or continuing. If restricted by their terms to a single transaction or within a fixed limit of time they are temporary. If not so restricted they continue in force until revoked. The latter class are called continuing guaranties. The ques- tion has, however, been much mooted as to whether the absence of express limitations, results in a limited or continuing guar- anty; whether a general authority, without any worda of lim- itation as to time or amount, to make advances to another on the credit of the promisor, will bind the guarantor for any amount at any time until revoked, or whether he is bound mere- ly for any amount the principal asks for and receives at the time he presents his letter of credit. To restrict such obligations to a single transaction and con- strue it as a limited guaranty is to adopt the view that instru- ments of gTiaranty should be construed most sfrongly in favor of the guarantor, and to construe the instrument as a continuing guaranty is to adopt the view of the other extreme that the con- struction should be most strongly against the guarantor *" A letter of guaranty read " 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." This was held to be a limited guaranty. The Court says: " Every person is supposed to have some regard to his owri in- terest; and it is not reasonable to presume any man of ordinary prudence would become surety for another without limitation as to time or amount, unless he has done so in express terms, or by clear implication." *^ 30 Moore vs. Holt, 10 Gratt. (Va.) \yend. 82; Anderson vs. Blakely, 2 284. Watts & Serg. (Penn.) 237; Baker *oAnte Sec. 50. vs. Rand, 13 Barb. (N. Y.) 152. ti Gard vs. Stevens, 12 Mich. 292. In Schwartz vs. Ilyman, 107 N. Y. See also Whitney vs. Groot, 24 .'iG2 ; 14 X. E. 447, the guaranty COJlilKROIAL GUARANTIES. 71 The remarks of the Court in this case would seem to apply also to the following guaranty : " Please let my daughter ha\e what goods she wants, and I will stand good for the money to settle the bills ;" yet the Court construed this to be a continuing guaranty/^ It is held, however, by the weight of authority that when the use of general words of credit creates an ambiguity or imcer- tainty, resort should be had to the surrounding circum- stances to ascertain the meaning. Thus, " I, John Meadows, will be answerable for fifty pounds sterling, that Wm. York, of Stanford, butcher, may buy of John HefReld." In reference to this the Court said: " It is obvious that we cannot decide that question upon the mere construction of the document itself, without, looking at the surrounding circumstances to see what was the subject matter which the jparties had in their contem- plation when the guarantee was given. It is proper to ascertain that for the purpose of seeing what the parties were dealing about, not for the purpose of altering the terms of the guarantee by words of mouth passing at the time, but as part of the con- duct of the parties, in order to determine what was the scope and object of the intended guarantee." And the Court held it to be a continuing guaranty.*^ reads: "You will be kind enough text. Knowlton vs. Hersey, 76 Me. to send Jacob Posner a full line of 345; Birdsall vs. Heaeock, 32 O. S. samples, of course suitable for 177; Moigan vs. Boyev, 39 O. S. spring and summer, at the lowest ,324; Richardson School Fund vs. figures. And I will guarantee the Dean, 130 Mass. 242. payment of any goods you may sell *2 Wright vs. Griffith. 121 Tnd. him." This was held to be a tem- 478; 23 N. E. 281. porary guaranty and covered only See also Young vs. Brown. 53 Wis. one transaction. The court appears 333; 10 N. VV. 394; Bastow vs. Kimi- to have reasoned itself to this con- nett, 3 Camp. 220 ; Hargreave vs. elusion, however, from the fact that Smee, 6 Bing. 244; Mason vs. the letter of credit contains refer- Pritchard, 12 East. 227 ; ilerle vs. ences to samples suitable for spring Wells, 2 Camp. 413. and summer, and hence not intended *3 Heffield vs. Meadows, 4 C. P. to cover the later seasons in which Div. 595. goods were ordered, and the case See also White's Bank vs. JI^-lps, does not, on this account, fully sup- 73 N". Y. 335. In this case the j^ar- port the general view stated in the anty read : " Please discount for T2 THE LAW OF SURETYSHIP. §60. Same subject continued. ^\. continuing guaranty which limits the amount is not ex- hausted Ijy advancements for tlie stipulated amount being made and paid for by the principal. A contract to stand good for $1,000 of credit is a guaranty for any balance within this limit, and not a guaranty limited to such time as the total advance- ments should equal $1,000, so that if advancements for $1,000 are made and settled for the guarantor will be liable for addi- tional advancement, the letter of credit not being revoked. A letter of credit was held to be continuing and to cover any balance for the amount named which read : " I will be and am responsible for any amount for which A. B. may draw on you for any siun not to exceed $1,500." ** Mr. Cummer to the extent of $4,000. He will give you customer's paper as collateral. You can also con- sider me responsible to the bank for the same." Held to be a continuing guaranty. l-Jai-l, J. : " It is impossible to say with certainty whether it was in- tended as a guaranty for a single credit to the extent of $4,000, or as a continuing guaranty to that ex- tent. In such a case a resort may be had to the svirrounding circum- stances, the nature of the business in which the credit was to be used, the situation and relation of all the parties and their previous dealings, and the negotiations which led to the giving of the letter, to enable the court to ascertain what was meant by the letter. . . . The principle of the admission of this class of evidence is, that the court may be placed in regard to the sur- rounding circumstances as nearly as possible in the situation of the party whose written language is to be in- terpreted ; the question being, what did the person thus circumstanced mean bv tlio langnaaie he has em- ployed.' Within this principle all prior conversation between the par- ties is not excluded. Such conversa- tion may pertain to and explain the surrounding circumstances, may be part of some res gestae, or may point out the subject matter of the con- tract." See also Mathews vs. Phelps, 61 Mich. 327; 28 N. W. 108; Fennell vs. McGuire, 21 Up. Can. (C. P.) 134; Mussey vs. Rayner, 22 Pick. 223 ; Wood vs. Priestner, L. R., 2 Ex. 66; Hotchkiss vs. Barnes, 34 Conn. 27; Boehne vs. Murphy, 46 Mo. 57. ** Crist vs. Burlingame, 62 Barb. (N. Y.) 351. See also Rindge vs. Judson, 24 N". Y. 64; Gates vs. McKee. 13 N. Y. 232; Douglass vs. Reynolds, 7 Pet. 113; Crittenden vs. Fiske, 46 Mich. 70; 8 N. W. 714. Contra — Boston & Sandwich Glass Co. vs. Moore, 119 Mass. 43S; Cut- ler V3. Ballon, 136 Mass. 337 ; Nich- olson vs. Paget, 1 Cromp. & Meos 48; Kay vs. Groves. 6 Bing. 276; White vs. Reed, 15 Conn. 457; Al- drieks vs. Higgins, 10 Sero-. & Rawle 212. ! COMMliltCIAL GUAEAUTIES. 73 §61. Absolute guaranties. If the liabilit}' of the promisor is fixed by the mere default of the jDrincipal it is an absolute guaranty but if the promisor's liability depends upon any other cvout than the non-performance of the princiijal it is a conditional guaranty. Contracts of guaranty endorsed upon promissory notes are the- most eommon forms of absolute guaranty. The time and amount of payment are fixed, and the liability of the guarantor depends uf)on no other condition than that of non-payment by the maker. If the guaranty is absolute the holder is not re- quired to make demand upon the maker and give notice to the guarantor of the default.*^ It is not necessary to first pursue and exhaust the j^rincipal hefore proceeding against the guarantor in cases where the guaranty is absolute.*" Where credit is extended for a definite amount, and for a definite time, no condition is imposed other tlian the default of the debtor, and the liability is absolute, -whether the transaction is a sale or whether it arises in the course of the negotiation of a bill or note. A guaranty of a debt upon the consideration of an extension ■15 Davis vs. Wells, Fargo & Co., 64 Minn. 218; 66 X. W. 965; Penny 104 U. S. 159; Brown vs. Curtiss, 2 vs. Crane Bros. Mfg. Co., 80 111. 244; X. Y. 225; Clay vs. Edgerton, 19 0. London, etc., Bank vs. Smith, 101 S. 549; Donley vs. Camp. 22 Ala. Cal. 415; 35 Pae. 1027. 059; Parkman vs. Brewster, 15 Gray The earlier cases in some jurisdic- 271; Chafoin vs. Rich, 77 Cal. 476; tions make no distinction between 19 Pac. 882 ; Tyler vs. Waddingham, absolute and conditional guaranties, 58 Conn. 375 ; 20 Atl. 335 ; Gage vs. and seem to rest upon the assump- Mechanics' Nat. Bank, 79 111. 62; tion that although the guaranty is Eoberts vs. Hawkins, 70 Mich. 566; absolute, yet the principal must first 38 N. W. 575; Klein vs. Kern, 94 be exhausted before recourse can be Tenn. 34; 28 S. W. 295; Hubbard had to the guarantor. Rudy vs. vs. Haley, 96 Wis. 578; 71 X. W. Wolf, 16 Serg. & R. 79; Johnston vs. 1030; Campbell vs. Baker, 46 Pa. Chapman, 3 Pen. & W. (Pa.) 18; 243; Milroy vs. Quinn. 69 Ind. 406. 1' arrow vs. Eespess. 11 Ired. Law «Cole vs. Merchants' Bank, 60 (N. C.) 170; Benton vs. Gibson, I Ind. 350; Woodstock Bank vs. Dow- Hill. Law (S. C.) 56; Craig vs. ncr. 27 Vt. 539; Roberts vs. Riddle. Phipps. 23 ^Nli'is. 240. 79 Pa. 468; Osborne vs. Gullikson. 74 THE LAW OF SUEETYSHIP. of time to the debtor places the traBsaction upon the same basis as an absolute guaranty (jf a note. In either case it is a guaranty of payment at maturity. The guarantor has the means of knowing in advance the exact amount of his contingent liability, and the exact time it will fall due, and no conditions of demand and notice enter into such contract. §62. Guaranty of collectibility. A guaranty of collectibility is distinguished from an absolute guaranty of payment. The latter imposes a liability to pay if the principal does not, and the former if the principal can not. No liability attaches upon a gtfaranty of coi- lectibility or solvency until in some way it is made to appear that the principal was not able to pay at maturity. Mere failure to pay the debt at maturity will fix the liability upon the promisor in an absolute guaranty of payment, but it is necessary to show more than mere default of the principal to bind the guarantor of collectibility. Such a promise is condi- tional, and if the creditor by due diligence might have recovered from the debtor at maturity, or at any other time before bring- ing his action against the guarantor, then the guarantor is exon- erated, for his promise is upon the condition that such diligence will be used.*^ 4' " The fundamental distinction pay, and consequently legal proceed- between a guaranty of payment and ings against the principal debtor, and one of collection is, that in the first a failure to collect of him by those case the guarantor undertakes un- means are conditions precedent to conditionally that the debtor will the liability of the guarantor; and pay, and the creditor may, upon de- to these the law, as established by fault, proceed directly against the numerous decisions, attaches the guaiantov, without taking any steps further condition that due diligence to collect of the principal debtor, be exercised by the creditor in en- and the omission or neglect to pro- forcing his legal remedies against ceed against him is not (except un- the debtor." Rapallo, J., Jilcilur- der special circumstances) any de- ray vs. Noyes, 72 N. Y. 524. fcnse to the guarantor; while in the See also Beardsley vs. Hawes, 71 second case the undertaking is that Conn. 39; 40 Atl. 1043; Evans vs. if the demand cannot be collected by Bcjl, 45 Tex. 553. legal proceedings the guarantor will CoiiMEKOIAL UUARAiXTIES. O No special form of words is required to bring tJbe contract ■within this class of guaranties. Any words which fairly import that the creditor shall first pursue the debtor makes the prom- isor a mere insurer of the debtor's solvency and not liable until the conditions are performed, such as " I warrant this note good " ** or " I guarantee the within note good until paid " *" or " We will pay it, provided you can't collect it off of them " '^'' or " liable only in the second instance " is held to fairly import a guaranty only after lie one primarily liable had been diligently prosecuted.^^ §63. Test of due diligence. There is a difference of holding as to what constitutes du^e diligence on the part of the creditor so as to create a cause of action against the guarantor of collectibility. The view which is supported by the weight of authority, and apparently by the most forcible reasoning is that " due dili- gence " does not require a legal proceeding against the principal nor even a demand where he is in fact financially irresponsible.^' *8 Curtis vs. Smallman, 14 Wend. the obligation it imports, may be (N. Y.) 231. satisfied, however, by other means. *" Cowles vs. Peck, 55 Conn. 251; The ascertainment, upon correct and 10 Atl. 569. sufGeient proofs, of entire or notori- soOrdeman vs. Lawson, 49 Md. ous insolvency, is recognized by the 135. law as answering the demand of due 51 Pittman vs. Chisohn, 43 Ga. uiligence, and as dispensing, under 442. such circumstances; with the more 52 In Camden vs. Doremus, 3 How. dilatory evidence of a suit." 515, an indorser took from his in- See also Perkins vs. Catlin. 11 dorsee an agreement that in event of Conn. 213; Stone vs. Rockefeller, 29 default the indorsee would use " due 0. S. 623; McClurg vs. Fryer, 15 diligence" to collect from the sev- Pa. 293; Woods vs. Sherman, 71 eral makers. Action was brought Pa. 100; Marsh vs. Day, 18 Pick, against the makers, but no execution 321; Miles vs. Linnell, 97 ilas-. was issued against some of them 298 ; Dana vs. Conant, 30 Vt. 246 : known to be insolvent. Held " The Benton vs. Fletcher, 31 Vt. 418 : diligent and honest prosecution of a Peck vs. Frink, 10 Iowa 193; Brack- suit to judgment with a return of ett vs Rich, 23 Minn. 485; Dillraan nulla bona, has always been re- vs. Nadelhoflfer, 160 111. 125: 43 X. sarded as one of the extreme tests E. 378; Middle States L. B. & C. Co. of due diligence. This phrase and vs. Engle, 45 W. Va. 588; 31 S. E. 76 TIIK LAW 01'' SLKETYSIUr. Opposed to this are many decisions in courts of high standing holding that the non-collectibility of the debt as against the principal can only be established by a process of law resulting in a judgment and execution witb a return of nulla bona, and that the fact of non-collectibility can not be shown by any other evidence than that of a fruitless prosecution of a suit against the principal.^' The mere bringing of an action is not an infallible test of diligence ; one may prosecute an action in such a way as to be barren of results. If tlie creditor knows of assets belonging to 921; Dewey vs. Clark Invest. Co., 48 Minn. 130; 50 N. W. 1032; Craig vs. Parkis, 40 N. Y. 187. (Dissent- ing opinion, Mason, J.) "The rule which requires the creditor, in such case, to use due diligence to collect the debt of the principal, is just and reasonable, and should be enforced, as well for its reasonableness as for the unbroken current of authority with which it is supported. The rule is not however in my judgment inflex- ible. It is like most general rules; it has its exceptions. It cannot be maintained upon principle, as the unbending rule, under all conceiv- able circumstances. If the principal is and- has been, from the time the light to bring suit against him has accrued, utterly and hopelessly in- solvent, with no property, out of Avhich anything could be collected, then the reason of the rule, which requires the principal debtor to be prosecuted to judgment and execu- tion with all diligence ceases, and the familiar maxim of law 'ces- sanie ratione legis, cessat ip.ta lex,' steps in and relieves the creditor from the rule of diligence in prose- cuting his suit. The reason of the rule ceasing, the rule itself must cease. "Thk must be so, unless we are prepared to hold that the creditor should lose his debt for the want of due diligence in doing a vain, idle and useless thing. The law is said to be the perfection of human rea- son, and should not be subject to such a reproach." Of course, if the debtor is solvent at the time of the default and the suit is delayed until he becomes in- solvent, the guarantor is discharged because of the failure to bring suit in the first instance. Crane vs. Wheeler, 48 Minn. 207. 53 Craig vs. Parkis, 40 N. Y. 181; French vs. Marsh, 29 Wis. 649 ; Bos- man vs. Akeley, 39 Mich. 710. The reason usually urged in sup- port of this view is that if the bring- ing of an action is a condition pre- cedent, then the guarantor may in- sist upon it, although of no benefit to himself, that the parties have contracted to have the question of insolvency tested by a proceeding brought directh' for that purpose by employing the ordinaiy measures provided by law for the collection of debts. That the standard or means of testing solvency being fixed by the parties the court should not substitute a new standard by show- ing insolvency by the mere opinion of witnesses. COMJIKla;iAL GUARANTIES. 77 the debtor and fails to inform tlie sheriff holding the execution, a return of nulla bona by the officer, while jsrima facie evi- dence of diligence, ought not to be conclusive.^* What constitutes dvie diligence, either with or without legal action, must depend upon the circumstances of each particular case and the determination of the question is within the un- doubted province of the jury,^° although some courts have con- sidered it altogether a qu''stion of law for the court.^" If the creditor relies iipon the insolvency of the principal as a justification for not bringing suit, the burden is upon him to show such insolvency of. tlie principal as would make legal action against him of no avail.^' §64. Notice to guarantor of acceptance of the guaranty and advancements thereon. The guarantor is generally in a position where he will have no knowledge at the time he makes his contract of the intention of the creditor tO' make advances relying upon his guaranty. If he is guarantor of a promissory note, the guaranty does not take effect until the delivery of the paper to the payee, and it has been urged with much plausibility that the acceptance of the note relying ujDon such guaranty ought not to be binding upon the guarantor, imless notice of such acceptance is given, thus placing the guarantor in a position where he may protect himself from loss so far as the circiimstances will permit, and that such knowledge on the part of the guarantor necessarily reg- ulates his conduct in the exercise of vigilance in respect to the affairs of the debtor. The same reasoning applies to a guaranty of a debt in con- sideration of an extension for a definite time. In each case, ■'■'Hoffman vs..BeehteI, 52 Pa. 194. and fact to be submitted to tbe jury ■•^ Xat. Loan & J^ldy. Soc. vs. only when the facts are in dispute. Lichtenwalner, 100 Pa. 103. nr if undisputed, they are of such a ss Graham vs. Bradley. 5 Humph. nature that reasonable men might (Tenn.) 476. diiTer in .resjard to the inferences But see Mead vs. Parker. Ill N. proper to be drawn from them. Y, 262; 18 N. E. 727, where it is 57 Allen vs. Rundle. ^0 Conn. 9. held to be a mixed question of law 78 THE LAW OK SURETYSHIP. the aiTiount of tlie obligation of the principal and the exact time of payment are known to the guarantor at the time he signs the agreement, but in boUi cases he may have no me^ins of knowing whether the creditor accepts the arrangement, if notice of ac- ceptance is to be considered unnecessary. A general letter of credit authorizing advancements to the debtor in such amoimts as he should ask for, and upon such , tenns of credit as the debtor shoiild desire places the guarantor at a still greater disadvantage, as in such a ease he not only does not know whether the creditor will accept the proposition, but he has no means of knowing how much will be advanced, or when the debt will mature. These relations of the parties have given rise to three questions relating to notice of acceptance of the guaranty. (1) Whether in the case where the amount of the debt and the time of payment are fixed notice of acceptance is required to bind the guarantor. (2) Whether the guarantor may require notice where the amount of the debt or the time of payment are indefinite, such as a general letter of credit for future advancements. (3) Whether the guarantor may not only require notice of an acceptance of the guaranty but where the amount and time of payment ai'e not fixed at the time of his agreement, whether he may also require notice of the amount of the advancement when made and the time when the debt will mature. These three hypotheses represent the usual field of discussion in the reported cases. There is perhaps but one question in- volved in all of these, and that is, whether a contract of guar- anty in respect to notice of acceptance is essentially different from any other contract. A merchant sends a mail order for merchandise to be manu- factured and shipped at some futiire date convenient to the shipper. He has no means of knowing whether the order will be accepted or when it will be shipped, yet this contract, when made complete by performance on the part of the vendor, does not depend for its validity upon notice of acceptance, and is not COMMERCIAL GUARANTIES. 79 affected by the uncertainty as to whether the order will be ac- cepted. The sending of such an order without stipulating that it is subject to notice of acceptance is a waiver of all the incon- venience and disadvantage which the uncertainty of such an a,r- rangement may place- upon the vendee. It may be said that as between vendor and vendee the latter always has notice by tiie mere receipt of the goods that his order has been accepted and that there is no corresponding construc- tive notice coming to the g-uarantor ; but this knowledge by the vendee is no necessary part of his contract, and the performance of the contract by the vendor which precedes the receipt of the goods fixes the liability of the vendee. The fact that the guarantor doe& not know tke amount or the time of the advancements- is sometimes construed to put him^ in the position of making a mere offer of guaranty, and it is said an offer to contract is not binding upon the one making the offer until accepted by the one to whom it is addressed. This, how- ever, does not of itself advance> the argaiment in respect to the necessity for notice, since an acceptance of an offer may either take the form of a communication to the offerer, or consist in the doing of the thing which is the subject of the proposal. The argument so oftein insisted upon that notice enables the guarantor to watch the debtor's affairs and so lighten his pros- pective loss is not sound in principle as it only applies in cer- tain cases. If the debtor is solvent and remains solvent or if insolvent and remains insolvent, notice of acceptance or lack of such notice does not in any way affect the guarantor. The conceded equity of suretyship that the creditor must re- frain from doing anything which will increase the burden as- sumed by the promisor, does not put upon the creditor any duty of assisting the promisor to escape a loss by means of timely notice or any other act of courtesy. Although courts of last resort have widely differed upon the question of notice of acceptance and advancements, upon prin- ciple, the conclusion seems to be : (1) The essential ingredients of a contract in suretyship 80 THE LAW OF SUEETYSHIF. are tiie same as a simple contract and notice of acceptance is not necessary to the inception of the contract. (2) The condition of notice of acceptance of guaranty or advancements thereon not being stipulated, such conditios will not be implied from the fact that lack of notice in some cases^ increases the risk of the undertaking, and in this respect tLe principle is no different whether or not the amount and time of payment is fixed at the time of the guaranty. §65. Federal court rule as to notice of acceptance of guaranty. The ease of Russell vs. Clark '^^ decided by Chief Justice Mai*shall in 1812 was probably the earliest case in the United States Supreme Court to announce any rule on the subject of notice of acceptance to the giiarantor. The defendants in tliis case wrote two letters recommending the debtors to credit, and advancements were made relying upon the recommendations, and after default the plaintiffs sought to charge the defendants as guarantors. Mr. Justice Marshall held that the letters did not constitute a contract of guaranty to which decision by way of obiter dictum the eminent Chief Justice added: "Had it been such a contract, it would certainly have been the duty of the plaintiff to have given immediate notice to the defendants of the extent of his engagerfients." In Edmonston vs. Dralie,^^ decided in 1831, notice of accept- ance was given to the guarantor and the Chief Justice again*^ takes occasion to express his view on this point, although not involved in the case, and he says : " Tt would indeed be an ex- traordinary departure from that exactness and precision which peculiarly distinguish commercial transactions (which is an important principle in the law and usage of merchants) if a merchant should act on a letter of this character, and hold the writer responsible without giving notice to him that he had acted on it." In Douglass vs. Reynolds (1833),"° the question was fairly presented and the rule made ths subject of an authoritative 58 7 Cranch fi9. '■» 7 Pet. 113. o»5 Pet. 0;i7. COMMERCIAL GUAEAJSTTIES. 81 decision for the first time wherein Mr. Justice Story says : " A ■ party giving a letter of guaranty has a right to know whether it is accepted, and whether the person to whom it is addressed means to give credit upon the footing of it or not." In 1836, the court after citing the three cases above men- tioned, says : " We see no reason for departing from the doc- trine so long and so fully settled in this court," "^ and in this ease the guaranty was of a bill of exchange for a fixed amount payable at a definite time. While much is said in' these cases about the disadvantage under which, tbe guarantor is placed by not receiving notice of acceptance, such as not being able to exercise vigilance over the affairs of the debtor, yet the ground upon which these adjudi- cations rest is that acceptance of a guaranty is essential to the inception of the contract."^ The Federal Court rule, therefore, may be stated to be that notice of acceptance of the guaranty is essential to the validity of the contract. Important modifications or exceptions to the 'ii Lee vs. Dick, 10 Pet. 496. o^ " He has already had notice of See also Adams vs. Jones, 12 Pet. the acceptance of the guaranty, and' 207 (1838), where the rule is af- of the intention of the party to act firmed upon the authority of the under it. The rule requiring this no- four cases cited in the text. " This tice within a reasonable time after is not now an open question in this the acceptance is absolute and im- court, after the decisions which perative in this court, according to' have been made in Russell vs. all the cases; it is deemed essentiali Clarke, Edmondson vs. Drake, to an inception of the contract." Douglas vs. Reynolds, Lee vs. Dick. Louisville Mfg. Co. vs. Welch, 1(> . It is in itself a reasonable How. 461. rule, enabling the guarantor to See also Davis vs. Wells, 104 U. S.. know the nature and extent of his 165, Matheics, J. : " The rule in ques- liability; to exercise due vigilance tion proceeds upon the ground that in guarding himself against losses the case in ^^■hich it applies is an- which might otherwise be unknown offer or a proposal on the part of the to him ; and to avail himself of the guarantor, which does not become- appropriate means in law and equity effective and binding as an obliga- to compel the other parties to dis- tion until accepted by the party tO' charge him from future responsibil- whom it is made ; that until then it ity." is inchoate and incomplete and may See also Reynolds vs. Douglass, 12 be withdrawn by the proposer." Pet. 497 ; Cremer vs. Higginson, 1 Mason ,'?2,'3. 82 THE LAW or suketysiiip. rule have, however, somewhat reduced its application even in the Federal Court. The rule will not be applied if the failure to give notice works no hardship on the guarantor, such as where the debtor is in.solvent and remains insolvent or where he is solvent and Tcmains solvent. ^\or where the guaranty is made at the request of the cred- itor, for in such a case the proposal is said to come from the creditor, of which the gnaranty is itself the. acceptance, and Lence the elements of mutual assent are supplied. Nor where there is a valuable consideration moving from the ci'cditor other than tlie expected advances, thus, if the letter of credit states that it is in consideration of one dollar received from the creditor, although such consideration is not paid, and even though such letter is the initiatory act in the transaction, mutual assent will be necessarily implied. ^^ The only case on which tlae Federal Court rule* now operates appears to be where no consideration from the creditor is ex- pressed, and the guarantor can show that failure to receive notioe'has operated to his detriment by reason of the changed financial condition of the debtor. The elaborate generalizations of the earlier ca'ses have been xeduced to a more practical basis by the later decisions, and the proposition that acceptance is necessary to the inception of the contract of guaranty is logically repudiated by the exception relating to the financial condition of the debtor. Formal acceptance is held, however, not to be necessary. A communication from the creditor to the guarantor advising him that he has received the letter and made the advances will satis- ly the requirements of an acceptance."* «■■' Davis vs. Wells, 104 U. S. 159 ; presumed from circumstances which Davis Sewing Mch. Co. vs. Richards, show that the guarantor had actual 11") U. S. 524, 6 S. Ct. 173; Barnes knowledge of the fact that the cred- vs. Reed. 84 Fed. Rep. 603. iter has acted upon the guaranty. 1-tHart vs. Minchen, 69 Fed. Rep. See First Nat'l Bank Dubuque vs. 520. Carpenter, 41 Iowa 518; Adams vs. Notice of ncceptance will also be .Jones, 12 Pet. 207; Powell vs. Chi- COMMEKCIAI> GUAKAXTIES. 83 §66. Rule of the state courts as to notice of acceptance of guar- anty. A number of the States have rejected the rule in force in thei Federal Court. Ivew York and Ohio and several other States of commercial importance have asserted the doctrine that notice of acceptance of a guaranty is neither essential to the inception of the contract nor a condition of the liability of the guarantor The fundamental basis of the rule in these States is that a suretyship contract is no different in this respect than any other contract. " By the common law no notice of acceptance of any contract was necessary to make it binding, unless it be made a condition of the contract itself, and that contracts of guaranty do not differ in that respect from other contracts." *^ The usual expression of these courts is that notice of accept- ance is not required in the case of an absolute gTiaranty. The teiin " absolute^' gtiaranty in this connection, however, means merely where no condition of acceptance is stipulated, either expressly or by necessary implication. All other conditional guaranties which do not include this particular condition, such as a general guaranty of collectibility, will be considered " ab- solute " in the sense the term is used. In one of the earlier ISTew York cases, the letter of credit in- vited the plaintiff to sell goods to the principal with the promise to guarantee payment. The goods were so delivered but no notice of acceptance was given the guarantor. The holding in this case is the basis of many other decisions in Xew York and elsewhere. " If the defendant wanted notice, and did not get it from the persons whom he thought worthy of credit, it was his business to inquire and ascertain what had been done. There is nothing in the defendant's undertaking which looks like a condition, or even a request, Aat the plaintiffs should give him notice if they acted upon the guaranty; and there is no cago Carpet Co.. 22 111. App. 409; guarantor by the principal debtor iMitchell vs. Railton, 4.5 Mo. App. will be sufficient. 273; Oaks vs. Weller, 16 Vt. 6.3. "5 Union Bank vs. Coster, .3 N. Y. It is generally held that notice of 212. acceptance communicated to the 84 THE LAW OF SURETYSHIP. principle upon which we can hold that notice was an essential element of the contract." '"' In the States which maintain the contrary view, there is no- uniformity of reasoning in support of the inile in force; the inajority, perhaps, standing upon the proposition that a letter of credit relating to future advancements is a mere offer t& contract in suretyship which requires mutual assent to become binding. The reasoning along this line becomes rather vague where an attempt is made to combine the idea of mutual assent with that of protection to the guarantor. Notice as an equity in favor of a guarantor to enable him to protect himself against loss need not be urged at all if mutual assent is necessary to the inception of the contract. In Massachusetts, it seems to be conceded that an acceptance is not necessa,ry to the inception of the contract of gniaranty, but that the guarantor has a right to know whether a contract has been made, that is, whether the creditor has acted on the pre posal, and if he does not get such knowledge, either l>y notice from the creditor or (semble) from some other source, he mav witlidraw the guaranty even though the creditor has acted upon it. Thus, it is said : " The language relied on was an offer to 66 Smith vs. Dann, 6 Hill 544. ture of the contract or terms of the See also City Nat. Bank vs. writing creating or implying the ne- Phelps, 86 N. Y. 484. cessity of acceptance or notice as a In Whitney vs. Groot, 24 Wend. condition of liability, neither are 82, the letter of credit was " We deemed requisite." consider Mr. J. V. E. good for all The following cases are in accord he may want of you, and we will with the New York doctrine : Pow- indemnify the same." The Court ers vs. Bumcratz, 12 0. S. 273; Wise- says: " The instrument did not con- vs. Miller, 45 0. S. 388; 14 N. E. template any notice of acceptance, 218; Boyd vs. Snyder, 49 Md. 325; or of the sales to the defendant made Crittenden vs. Fiske, 46 ilich. 70; 8 in pursuance of it; it was not a N. W. 714; Platter vs. Green, 20 proposition to become surety for Kans. 252; Wilcox vs. Draper, 12 Van Eps, but an absolute undertak- Neb. 138; 10 N. W. 579; Klosterman ing to pay for the goods if he did vs. Olcott, 25 Neb. 382; 41 N. \V. not, and obviously contemplated a 250; Bright vs. McKnight, 1 Sneed sale and delivery on presentation. (Tenn.) 158; Yancey vs. Brown, 3- Unless there is something in the na- Sneed 89. COMMEECIAL GUARANTIES. S5 uiiarantee, which the plaintiff might or might not accept .... It was an offer to be bound in consideration of an act to be done, and in such a case the doing of the act constitutes the acceptance of the offer and furnishes the consideration. Ordinarily there is no occasion to notify the offerer of the acceptance of such, an offer, for the doing of the act is a sufficient acceptance, and the promisor knows that he is bound when he sees that action has been talcen on the faith of his offer. But if the act is of such a kind that knowledge of it will not com© quickly to the promisor, the promisee is bound to give him notice of his acceptance within a reasonable time after doing that which constitutes the acceptance. In such a case it is implied in the offer that, to complete the contract, notice shall be given with due diligence so that the promisor may know that the contract has been made. But where the promise is in consideration of an act to be done, it becomes binding upon the doing of the act so far that the promisee can not be affected by a subsequent withdrawal of it, if within a reasonable time afterward he notifies the prom- isor." " The rule of a large number of jurisdictions makes lack of notice of acceptance a defense to the extent of the loss which the guarantor suffers by not receiving notice, not requiring such notice to be immediate but within a reasonable time. These cases are generally in accord vsdth the Federal Court except as to the gi'ounds upon which tlie decisions rest.** 87 Knowlton, J., in Bishop vs. Ea- 366; 5 Atl. 20; Evans vs. McCor- ton, 161 Mass. 499; 37 N. E. 665. mick, 167 Pa. 247; 31 Atl. 563; Wil- es Mussey vs. Rayner, 22 Pick. kins vs. Carter, 84 Tex. 438; 19 S. 223; Winnebago Paper Mills vs. W. 997; Woodstock Bank vs. Dow- -Travis, 56 Minn. 480; 58 N. W. 36; ner, 27 Vt. 539; Noyes vs. Nichols, -Central Savings Bank vs. Shine, 48 28 Vt. 159; Ellis vs. Jones, 70 Miss. Mo. 456; Tolman Co. vs. Means, 52 60; 11 South. 566; Tuckerman vs. Mo. App. 385; Walker vs. Forbes, 25 French, 7 Me. 115; Euffner vs. Love, Ala. 139; Cahuzae vs. Samin. 29 33 HI. App. 601; Meyer vs. Ruh- Ala. 288; McCollum vs. Cusliing, 22 stadt, 66 111. App. 346. Ark. 540; Rapelye vs. Bailey, 3 No distinction is made in these " The guarantor is entitled to T7 Ante Sec. 64, 65, 66. a notice, but cannot defend himself '8 Clark vs. Remmington, 11 Met. for want of it, unless the notice has 361 ; Mussey vs. Rayner, 22 Pick. been so long delayed as to raise a 228; Gaff vs. Sims, 45 Ind. 262; presumption of payment or waiver, Douglass vs. Reynolds, 7 Pet. 113; or unless he can show that he has 92 THE LAW OF SUEETYSllIP. §69. Joint and several guaranties. A contract of guaranty executed by two or more persons may amount to a joint obligation, or the liability may be several ac- cording as words of severalty or joint obligation are employed. The obligation will be regarded as joint, however, in all cases unless there are express words indicating a several liability. The intent of the parties in this respect may generally be determined to be joint if expressed in tlie plural form, such as " We guarantee " or it may be made both joint and several by using the words " We or either of us guarantee," but where the form of the contract is singular, but executed by two or more persons, it expresses the intecit of the obligors in the majority of cases to hold such promises to be joint and several, and such is the rule.*" If the promise is merely joint a judgment against one bars an action against the other. '^ At common law, the estate of a deceased joint obligor is not liable but the sun'ivor will be liable for tlie entire amount,*' whereas if the obligation is several, or joint and several, re- course can be had against the estate of the decedent. lost, by the delay, opportunities for 363. In this case it is held that the obtaining securities, which a. notice, discharge is as to the creditor only, •or an earlier notice, would have se- and the equitable liability for con- cured him If the notice be tribution between joint obligors is delayed a very short time, but by preserved against the estate of the reason of the delay the guarantor defcedent. New Haven, etc., Co. vs. loses the opportunity of obtaining Hayden, 119 Mass. 361; Seaman vs. indemnity, and is irreparably dam- Slater, 18 Fed. Rep. 485; Hawkins aged, he would be discharged from vs. Ball's Adm., 18 B. Mon. 816; his obligation. But, if the delay Burgoyne vs. Ohio Life Ins. &, Trust were for a long period, and it was Co., 5 0. S. 586. nevertheless clear that the guarantor The estate of the deceased obligor Vi'ould have derived no benefit from is discharged at common law even an earlier notice, the delay would though a. joint- judgment had been not impair his obligation." Bank vs. entered against him and the prlnci- Gaylord, 34 Iowa 246. pal before the death of the promisor, 80 Fond-du-Lae Harrow Co. vs. Risley vs. Brown, 67 N. Y. 160. Haskins, 51 Wis. 1.S5; 8 N. W. 15. ' It seems, however, where a judg- 81 Brady vs. Reynolds, 13 Cal. 32. ment upon a joint obligation be- 82 Johnson vs. Harvey, 84 N, Y. comes a lien on the obligor's land in COMMEECIAL GUAEAKTIEW. 9a §70. Guaranty covers interest. A guarantor is liable for interest on the debt from the time of the default by thei principal.'^ This liability for interest increases the amount named as the penalty of the obligation, but is justified because of the fact that the guarantor puts himself in place of the principal and agrees to perfonn all that the principal is liable for. Also the guarantor may eixercise his right to pay the debt at maturity and so avoid all obligation of interest to the creditor. Interest is due from the date of demand on the principal, or from the maturity of the debt where demand is not necessary to fix the time of payment. If the debt is due upon demand, and no demand is made upon the principal, the bringing of an action againsrt; the guarantor or surety will amount to a demand upon them which will fix the date from which interest will be computed.'* his life time that it will be pre- served against his estate. Baskin vs. Huntington, 130 N. Y. 313; 29 N. B. 310. In Ohio the Code now provides that " When two or more persons shall be indebted in any joint con- tract, or upon a Judgment founded upon any such contract, and either of them shall die, his esta,te shall be liable therefor, as if the contract had been joint and several, or as if the judgment had been aga.inst him- self alone." R. S. O., See. 6102. This statute abrogates the common law rule and similar provisions have been enacted by the legislatures of nearly all the States. Some modifications of the common law rule were made by courts of equity in eases where the deceased joint obligor, participated in the benefits of the contract, such as a joint maker of a promissory note, where the consideration was for the joint use and benefit of the makers. In such eases, the court construed the obligation as joint and several byemploying a fiction that since the contract was jointly and severally for the benefit of both, that it must have been intended for a joint and several obligation, and written by mistake as a joint contract. Simp- son vs. Vaughan, 2 Atk. 31; Bishop vs. Church, 2 Ves. 100. But the courts declined to extend tne fiction to cases where one of the joint obligors was not directly bene- fited by the contract,, as in the ease of a surety or guarantor. Getty vs. Binsse. 49 X. Y. 385; Wood vs. Fisk, 63 N. Y. 245; Carpenter vs. Broost, 2 Sandf. 537; Weaver V3. Shyrock. 5 Serg. & R. 262. 83 Gammell vs.- Parramore, 58 Ga. 54; Gridley vs. Capen, 72 111. 11; City of New Orleans vs. Clark, 95 U. S. 644; French vs. Bates, 149 Mass. 73; 21 N. E. 237. 84 U. S. vs. Curtis. 100 U. S. 119. Where the obligation is that of a 94 THE LAW OI'' SURETYSHIP. §71. Eevocation of guaranty. A contract of guaranty whicli is merely executory, may be revoked by the guarantor at any time before it is acted upon. So far as affected by this question an executory contract of guaranty may be considered as a mere offer to contract, and not binding until acted upon, and may be • withdrawn even though the creditor has given notice to the promisor that he will act upon it. Such notice by the creditor, even in the form of an acce]itance of the guaranty, will not bind the creditor to make advances to the principal, and so long as both parties are not bound either may withdraw.*^ Where the consideration has wholly passed tlie guaranty can not be revolted. *^ It is not necessary that the creditor should actually make the proposed advances in order to constitute an executed contract. If the creditor has bound himself to make the advances rely- ing upon the guaranty, the guarantor cannot revoke. Where the consideration is divisible, part of which has been ad- vanced, the guaranty may be revoked, after a breach, as to any further advances, providing such future advances are optional with the creditor.'^ A revocation will not in all cases become instantly operative. A reasonable time must intervene, that the creditor may have opportunity to adjust his business without loss. A guaranty, for instance, of the faithful performance of duty by one hold- bail bond in which the amount pay- 87 LaRose vs. Logansport Bank, able is a penalty as distinguished 102 Ind. 332; 1 N. E. 805; Hunt vs. from a debt, interest is not recover- Roberts, 45 N. Y. 691; Emery vs. able against the promisor. U. S. vs. Baltz, 94 N. Y. 408; Gay vs. Ward, Broadhead, 127 U. S. 212; 8 S. Ct. 67 Conn. 147; 34 Atl. 1025; Singer 1191. Mfg. Co. vs. Draughan, 121 N. C. 85 Potter vs. Gronbeek, 117 111. 88; 28 S. E. 136; Metropolitan 404: 7 N, E. 586; Offord vs. Davie, Washing Machine Co. vs. Morris, 39 1-2 J. Scott (Jf. S.) 748; Jordan vs. Vt. 393: Tischler vs. Hofheimer, 83 Dobbins, 122 Mass. 168. Va. 35; 4 S. E. 370; Coulthart vs. "i'' Green vs. Young. 8 '\\o. 14 ; Ker- Clementson, 5 Q. B. Div. 412. nnchan vs. Murray, 111 N. Y. 306; 18 N. E. 868. CO.M.MERCIAL GUAEANTIES. 95 iiiU' a ])()siti(j)i of trust will cover damages to the creditor for a reasonable time after notice of revocation.** The death of the guarantor operates as a revocation of the guaranty in all cases where the guarantor might if living have revoked by giving notice/" The death of the guarantor does not ipso facto operate as a revocation, but knowledge of the death must be brought home to the creditor. "" The death of the guarantor will operate as a revocation even 88 Bostwick vs. Van Voorhis, 91 N. Y. 353; Reilly vs. Dodge, 131 N. Y. 153; 29 N. E. 1011; LaRose vs. Lo- gansport Nat. Bank, 102 Ind. 332; 1 N. E. 805. 88 Jordan vs. Dobbins, 122 Mass. 168 ; Hayland vs. Habich, 150 Mass. 112; 22 N. E. 765. Contra — Bradbui y vs. Morgan, 1 Hurl. & Colt. 240. See also Broome vs. The United States, 15 How. 143; Fewlass vs. Keeshan, 88 Fed. Rep. 573; McClas- ky vs. Barr, 79 Fed. Rep. 408. Lloyds vs. Harper. 16 Ch. Div. 290, Lush, L. J. : " Now it will be found, I think, that guarantees may, for the purpose of this case, be di- vided into two classes, the one in which the consideratian is entire, and the other in which the consider- ation is fragmentary, supplied from time to time, and therefore divis- ible. An instance of the first is where a person enters into a guar- antee that in consideration of the lessor granting a lease to a third person he will be answerable for the performance of the covenants. The moment the lease is granted there is nothing more for the lessor to do, and such a guarantee as that, of necessity runs on throughout the duration of the lease. The lease was intended to be a guaranteed lease, and it is impossible to say that the guarantor could put an end to the guarantee at his pleasure, or that it could be put an end to by his death contrary to the manifest in- tention of the parties .... instances of the second class are more familiar. They are where the guaranty is given to secure the bal- ance of a running account for goods from time to time, and it is reason- able to hold, unless the guarantee stipulates to the contrary, that the guarantor may at any time termi- nate the guarantee." 90 Gay vs. Ward, 67 Conn. 147; 34 Atl. 1025. Contra — Michigan State Bank vs. Leavenworth Est., 28 Vt. 209. Not only must the creditor have knowledge of the guarantor's death, but in order to have this work a rev- ocation of the guaranty, he must have knowledge also of the fact that the deceased was a guarantor. Clark vs. Thayer, 105 Mass. 216. 96 THE LAW OF SUEETYSHIP. though the contract stipulates that it shall continue until a^ written notice of revocation is received. °^ 91 Jordan vs. Dobbins, 122 Mass. 168; Nat. Eagle Bank vs. Hunt, 16 R. I. 148; 13 Atl. 115. Contra — Knotts vs. Butler, 10 Rich. Bq. (S. C.) 143. The death of one of several joint obligors Vfill not, however, operate as a revocation as to the surviving obligors. Breckett vs. Addyman, 9" Q. B. Div. 783. The obligation in this ease was joint and several. But see also Fennell vs. McGuire,„ 21 Up. Can. (C. P.) 134; where the- obligation is joint and the same rule^ is applied. CHAPTER IV. Sec. 72. Sec. 73. Sec. 74. Sec. 75. Sec. 76. SURETYSHIP DEFENSES. Material Alteration of Principal Contract. Same Subject Continued. Same Subject Continued. Alteration of Principal Contract by the addition of new parties. Alteration of Principal Contract by a change in the duties of the principal. Sec. 77. Variation in amount of advancements under limited guaranty — Effect upon guarantor. Change of parties. Alterations beneficial to the surety or guarantor. Alterations enlarging the principal liability. Discharge of promisor by extension of time. Agreement for extension must be for a consideration. Payment of advance interest as a consideration for extension. Agreement for extension must be for a definite time. Extension of time by the execution and delivei-y of a note for the debt, payable at a later date. Collateral securities maturing at a later date. Extension of time by act of Legislature. Giving time to Surety — Effect upon Co-Surety. Giving time is not a defense, if the Surety is fully indemnified.. Extension of time as a defense to persons who are in the sit- uation of a Surety. Extension by appeal or continuance in judicial proceedings. Extension of time with reservation of rights against the Surety. Agreements not to sue as distinguished from agreements toi extend — Effect upon Surety. Waiver of the defense of extension of time. Delay of the Creditor in pursuing remedies against the Prin- cipal as a defense to the surety or guarantor. Sec. 96. Payment or other satisfaction as a disehaigc of the Surety or' Guarantor. Sec. 97. Liability against Surety or Guarantor revivpd if payment or- substituted surety is void. Sec. 98. Voluntary release of security held by the creditor or upore which the creditor has a lien. See. 99. Release of securities by the misconduct of the creditor. Sec. 100. Release of securities by operation of Law. Sec. 101. Release by the Creditor of Property of Principal in his pos- session or control, but not held as security for the Suretyship debt. Sec. 78. Sec. 79. Sec. 80. Sec. 81. Sec. 82. Sec. 83. Sec. 84. Sec. 85. Sec. 86. Sec. 87. Sec. 88. Sec. 89. Sec. 90. See. 91. Sec. 92. See. 93. Sec. 94. Sec. 96. Sec. 102. See. 103. Sec. 104. Sec. 105. Sec. 106. 98 THE LAW OF SUKETYSHIP. Whatever releases principal will release the surety or guarantor. Same Subject -i— Release of principal by operation of law. Same Subject — In cases where the release by operation of law is not the result of the fault or procurement of the Creditor. Suretyship obligations obtained by fraud of the creditor. Same Subject — Concealment or non-disclosure of facts by the Creditor. Sec. 107. Discharge of promisor by failure to disclose facts coming to the knowledge of the creditor, after the execution of the con- tract. Sec. 108. Fraud and Misconduct of the Principal. Sec. 109. Misconduct of the Principal, by delivering Suretyship obliga- tions without complying with ' conditions. Sec. 110. Suretyship contracts made in reliance upon promises of the creditor. Sec. 111. Conditional contracts of Suretyship- — Parol evidence not com- petent to show conditions. Same Subject — I'arol evidence competent in certain casea. Release of promisor by the creditor. Release of a Co-promisor by the creditor. Defense of the promisor based upon the failure of the creditor to sue the principal when requested. Same subject — The doctrine of Pain vs. Packard. The principal's right of set-oflF or counterclaim against the cred- itor as a defense to the promisor. Sec. 118. Defenses based upon the right of the promisor to control the application of collateral. Sec, 119. Revocation — Death of the promisor. §72. Material alteration of principal contract. A material alteration of a contract is such a change in the terms of the agreement as either imposes some new obligation on the party promising or takes away some obligation already imposed. A change in the form of the contract which does not effect one or the other of these results is immaterial. Any change in the terms of the principal contract which obliges the debtor to do something which he was not before bound to do will discharge the surety or guarantor.^ This is eaid to result from either one of two reasons: iBoalt vs. Brown, 13 0. S. 364; Dewey vs. Reed, 40 Barb. 16; Hart Patterson vs. McNeely, 16 O. S. 348; vs. Clouser, 30 Ind. 210; Hessell vs. Wnterman vs. Vose, 43 Me. 504; Johnson. 63 Mich. 623; 30 N. W. McGrath v^^. Clark, 56 N. Y. 34; 209. Sec. 112. Sec. 113. Sec. 114. Sec. 115. Set. 116. Sec. 117. SURETYSHIP DEFENSES. 99 (1) It is an increase of the promisor's risk or hazard. The addition of new burdens upon the principal may be the cause of his failure to perform any part of his contract. The new conditions or terms might, indirectly at least, render im- possible the carrying out of the things which were the subject of the guaranty. (2) The contract as changed is not the same contract guai> anteed by the promisor. The original contract has been put an end to and a new one substituted. The guarantor has never agreed to stand good for the latter, and suretyship cannot be 'imposed mthout the express consent of the promisor, and his execution of the original contract will not carry by implica- tion any liability upon a substituted contract, although the latter is similar to the first. Either one of these reasons is a satisfactory groimd upon which to rest the discharge of the promisor, and both are abundantly supported by authority. The suggestion, however, that a new contract has been substituted entirely supersedes the first reason given. It is of no importance to consider whether the risk of the promisor has been increased or not, if the prom- isor is to be discharged for the reason that his contract has been ended. §73. Same subject continued. If the alteration consists in relieving the principal of some obligation included in the original contract, or if new obliga- tions have been added and liabilities equal in amount can- celled, so that the new contract imposes no greater burdens or risk than the original, or if the added obligations can be shown to be merely nominal, and which do not in any way increase the risk of the promisor, then the question of the discharge of the promisor must rest wholly upon the proposition of a sub- stituted contract, and many courts have been willing to stand solely upon this ground. In an early English! case H contracted for the milking of thirty cows for a year and J was surety. The parties to the principal contract changed the terms so that H was to have 100 THE LAW OF srillCTYSIlir. twenly-eight cows for one ])art of the year and thirty-two for the other. This was apparently not a substantial change as the average of thirty remained, hut the Court discharged the surety, holding: " The new agi-eement was binding only on those persons who were parties to it. If it had been intended to bind J by it, he should ha\'e been consulted ; he had a right to insist upon a literal performance of the original bargain. If a new bargain was made, he had a right to exercise his judgment whether he would become a party to it. There may, perhaps, be very little difference between the two contracts, but _ the question does not turn on the amount of the difference ; but the question is, whether the contract performed by the plaintiff is the original contract to which the defendant was a party. If it is, then J is bound by it, otherwise he is not." ^ 2 Whitcher vs. James Hall, 5 Bar^. & Or. 269 (1826). " No principle of law is better set- tled at this day, than that the un- dertaking of the surety, being stricti juris he cannot, either at law or in equity, be bound farther or other- wise, than he is by the very terms of his contract. . . . He is not bound by the old contract, for that has been abrogated by the new; neither is he bound by the new con- tract, because he is no party to it. . . . Neither is it of any conse- quence that the alteration in the contract is trivial, nor even that it is for the advantage of the surety. Non haec in foedera veni, is an answer in the mouth of the surety, from which the obligee can never extricate his case, however inno- cently or by whatever kind inten- tion to all parties, he may have been actuated." Bethune vs. Dozier, 10 Ga. 235. See also Warden vs. Ryan. 37 Mo. App. 466; Atlanta National Bank vs. Douglass, .51 Ga. 205; Weir Plow Co. vs. Walmsly. 110 Tnd. 242; 11 N. R. 232; Dey vs. Martin, 78 Va. 1 ; Christian & Gunn vs. Keen, 80 Va. 369; Rownn vs. Sharps' Kifle Mfg. Co., 33 Conn. 1; Eyre vs. Hol- lier, Lloyd & Gould, 250; St. Louis Brewing Assn. vs. Hayes, 71 Fed. Rep. 110; Parke vs. White River Co., 110 Cal. 058; 43 Pae. 202; Ches- ter vs. Leonard, 68 Conn. 495 ; 37 Atl. 397; Plunkett vs. Sewing Ma- chine Co., 84 Md. 529; 36 Atl. 115; Prior vs. Kiso, 81 Mo. 241; Evans vs. Graden, 125 Mo. 72; 28 S. W. 439; Gardner vs. Watson. 76 Tex. 25; 13 S. W. 39; Nichols vs. Palmer, 48 Wis. 110; 4 K W. 137; Titus vs. Durkee, 12 Up. Can. (C. P.) 367. It was held in Sanderson vs. As- ton, L. R., 8 Ex. 73, that it is not sufficient to discharge the surety that the alteration be " material " merely in the sense that it imposes a new contract, but that the change must be prejudicial to the surety, and that an alteration in the princi- pal contract, changing the period within which notice to quit employ- ment could be given, from one month to three months, was not material since the risk of the surety was not tliereby affected. S LriiJSTYB 11 -li' DEFK.N SKS. 101 If the alteration consists in a change in the place of pay- ment it adds an obligation to pay at a place not stipulated in the original agreement and relieves the principal from the -oliligation to pay at the pl,ace first stipulated. Generally this alteration would not in 'any H'*y increase the risk or change the j)()sition of the principal, but the promisor in suretyship is not liable upon such substituted contract.^ The changing of the date of maturity, whether it hasten or delay the time of payment, is a material alteration,* and on gi-ounds of public policy a change of the date of commercial paper is a material alteration, even though the date as changed expresses the real agreement of the parties. To hold other- Avise would operate against the unrestricted use of negotiable jpaper as a medium of commercial transactions. It is of the Iiighest importance to preserve the integrity of written instru- inents, and one who has the custody of such iBStruments in- tended for his own benefit is bound to preserve them intact. ' 3 Pahlman vs. Taylor, 75 111. 629. 4 Wood vs. Steele, 6 Wall. 80, Bwayne, J.. " The grounds of the discharge in such eases are obvious. The agreement is no longer the one into which the defendant entered. Its identity is changed: another is substituted without his consent; and b^a party who had no author- ity to consent for him. There is no longer the necessary concurrence .of minds." 5 Newman et al. vs. King, 54 0. S. 273; 43 N. E. 683. In this case the payee changed dhe date, making the note read June -23rd, in place of June 22nd, the former being the date on which the note was written and signed and the date which the parties themselves intended the note should bear, and the alteration was to correct the mistake. The Court held : " Delib- erate tampering with written instru- ments by their obligees upon any pretence whatever should not be encouraged. " If the right to do so in respect to any material matter should be established the principle by which satisfactory limits can be fixed to such right are not apparent Where, by mistake, a written instru- ment does not conform to the inten- tion of the parties, and they can not agree respecting the mistake and its correction, an adequate rem- edy has been provided according to the principles of equity jurispru- dence, by courts having jurisdiction to correct such mistakes where rules of evidence appropriate to establish the fact of mistake are prescribed and enforced." But see Duker vs. Franz, 7 Bush (Ky.) 273: McRaven vs. Crisler, 53 Miss. 542. 102 THE LAW OF STIEETTSHIP. §74, Same subject continued. The same effect will be given to a material alteration of ne- gotiable paper, although the alteration takes place before de- livery of the paper to the payee, and before the paper has acquired any validity against the maimer. The surety or guar- antor not consenting to such change will be discharged." It is, however, urged that the execution of the suretyship contract and the intrusting of the contract to the principal for delivery to the creditor carries with it an implied authority to make such changes as will enable the principal to carry out the main purpose of the transaction ^ and that in any event where the creditor makes his advancements without knowledge of the alteration the promisor should be estopped from claim- ing his discharge, sinoe, as between two innocent parties, the one should bear the loss whose act made it possible for the other to be misled. The rule which authorizes the holder of paper delivered to him in defective form or incomplete by reason of blanks left unfilled, should not be extended to that class of cases where the I 8 Jones vs. Bangs, 40 0. S. 139 McGrath vs. Clark, 56 N. Y. 34 Uraper vs. Wood, 112 Mass. 315 Ferry, 5 Wash. 536; 32 Pae. 538. See also Fowler vs. Allen, 32 S. C. 229; 10 S. E. 947. Bradley vs. Mann, 37 Mich. 1 ; Mtna, If the contract is delivered to the 1. Nat. Bank vs. Winchester, 43 Conn. principal in an incomplete state 391. leaving blanks to be filled in, the ' It is held that the delivery of a defense of alteration is shut out bond by the surety to the principal both on the ground of agency and establishes the relations of agency estoppel, even though the principal between these parties, and the sure- fill in the blanks contrary to instruc- ty will be bound by any alteration tions. White vs. Duggan, 140 Mass. made by the principal before deliv- 18; 2 N. E. 110. ery, not communicated to or known Where the instrument bears upon by the obligee, and that having thus its face evidence that the principal held out the principal as his agent, is exceeding his authority as an the surety is estopped from claiming agent, the surety may maintain his that he has exceeded his authority defense. Fletcher vs. Austin, 11 as such agent, as against one who Vt. 447 ; Smith vs. United States, 2 has relied upon his apparent author- Wall. 219 ; State vs. Craig, 58 Iowa ity, and that the surety should not 238; 12 N. W. 301; Hessell vs. John- be permitted to transfer the burdens son, 63 Mich. 623; 30 N. W. 209; resulting from misplaced confidence Allen vs. Marney, 65 Ind. 399; in his agents. King County vs. Ward vs. Churn, 18 Gratt. 801. SDKETYSHJP JlKFENSES. 103 paper is not defective, but delivered with all I he terms fully written in which are necessary to a completed contract.. There is no room for the application of the rule of implied authority or estoppel in such cases.* There is no difference in principle between cases of altera- tion by the debtor and alterations by the creditor. In either case, the discharge of the promisor may be based on the fact that a new contract has been substituted, or the risk increased, and it can make no difference to the promisor whose act caused this result. Only those alterations which are made by the principal or creditor acting for themselves or through author- ized representatives will operate to discharge the surety or guarantor. Any change or mutilation tliat is the result of ac- cident or the act of a stranger will not effect the liability of the promisor.' 8 The rule stated in the text must be distinguished from those tians- netions in which the surety or guair- nntor signs upon conditions not com- municated to the creditor. In such eases, estoppel is properly urged against the defense, for if fraud has been practised by the principal, in delivering the contract contrary to instructions, and without disclosing to the creditor the limitations under which the promisor signed, the one who made such deception possible by placing the contract in the hands of the principal, should suffer the loss, rather than the one who made the advancements relying upon the contract being what it pwrpoirted to be. Such now seems to be the es- tablished rule in the United States. Btate vs. Peck, 53 Me. 284; Fowler TS. Allen, 32 S. C. 229; 10 S. E. 947; Tidball vs. Hally, 48 Cal. 610; Marks vs. First Nat. Bank, 79 Ala. 650; Slate vs. Potter, 63 Mo. 212; Dair vs. United States, 16 Wall. 1 : Millett vs. Parker, 2 Met. (Ky.) PnS; Post Sec. 108. Contra — People vs. Bostwick, 32 N. Y. r- W. 589. Met. 553; Merriman vs. Barker, 121 '. .le ; ib-lity of the surety or Ind. 74; 22 N. E. 992. SUEETTSHIP BliX-'ENSES. 131 itor that payments may be delayed, yet the elements of a bind- ing contract to extend, cannot be supplied from this implica- tion, and unless an express agreement for. extension is shown, the surety is not discharged.^* The giving of collateral se- curity is a good consideration for an agreement to extend "^ and the agreement to extend in consideration of the additional security may be shown by parol/" §87. Extension of time by act of legislature. Sureties upon bonds of Public Officers are discharged by acts oi the Legislature extending the time within which such officers must settle their accounts. No good reason is apparent why any different rule should apply in cases where the State is a party than in cases of surety- ship between individuals. No consideration is necessary to support an extension in such a ease, as it does not result from a contract as in the case of an individual creditor. The act of the Legislature is binding upon all the citizens and officers of the State, and the extension until the act is repealed, is just as effectual as if brought about by a valid contract between the debtor and creditor. It only differs from an individual contract of extension in that, in the case of extension by the Legislature, the act may be repealed and the original date of maturity restored without the consent of the debtor, while as between individuals the original contract can be restored only by mutual assent. Yet it is nev- 5^ German Savings Inst. vs. Vahle, void, held that this of itself did not 28 111. App. 557; Firemen's Ins. Co. suspend action on the debt for five vs. Wilkinson, 35 N. J. Eq. 160; years, and that the surety was not Burke vs. Cruger, 8 Tex. 66; Bren- released. gle vs. Bushey, 40 Md. 141; Thurs- Contra — Munster & Leinster ton vs. James, 6 R. I. 103. In this Bank vs. France, 24 L. R. Ir. 82. case the debtor executed a mortgage 55 Overend Gurney & Co. vs. Ori- to secure a debt for which a surety ental Financial Corp., L. R., 7 H. L. was already bound. The mortgage 348.; Kane vs. Cortesy, 100 N. Y. wntained a defeasance clause, pro- 132; 2 N". E. 874. viding if the debt was paid in five «« Morse vs. Huntington. 40 Vt. veavs that the mortgage should be 488. 122 THE LAW OF SUEBTYSHIP. ertheless a binding extension so long as the law remains in foroe." §88. Giving time to surety — Effect upon co-surety. A contract between tbe creditor and one of several co-sure- ties, extending the time of payment as to such surety, does not prevent the creditor from proceeding at once against the prin- cipal, but such an arrangement interferes with a right of the co-sureties, for if the co-sureties pay the debt, they could not recover contribution from the surety to whom the indulgence was granted until the expiration of the extension. For this 57 state vs. Roberts, 68 Mo. 234; Johnson vs. Hacker, 8 Heisk. ( Tenn. ) 388; Davis vs. People, 1 Gilm. (111.) 409; People vs. McHatton, 2 Gilm. (111.) 638; King Co. vs. Ferry, 5 Wash. 536; 32 Pae. 538; Pybus vs. Gibb, 6 El. & Bl. 902. Lord Camtphell, G. J. : " It may be considered settled law that, where there is a bond of suretyship for an oificer, and, by act of the parties or by Act of Parliament, the nature of the office is so changed that the du- ties are materially altered, so as to affect the peril of the sureties, the bond is avoided. . . . There is no inconvenience; for, when an Aet of Parliament alters the duties of an officer, it will be easy to re- quire him to give fresh sureties, or the surety bonds may be. framed so as to continue the liability of the sureties, whatever alterations might take place by "the act of the Legis- lature." The Courts of several States have distinctly declined to adopt the view stated in the text and hold that the public officers accept their office, and give their bonds, affected with notice of the sovereign rights of the people, through their Legislature, to con- trol the duties of such officers by such enactments as the public good requires., and that their sureties are charged with this notice, and that no contract exists between the offi- cer and the State to which any con- tract of extension could apply. That the bond is a special contract authorized by law, and that mutual assent to any changes thereafter made in the law, must be implied. Worth vs. Cox, 89 N. C. 44; Com- monwealth vs. Holmes, 25 Gratt. 771; State vs. Swinney, 60 Miss. 39. In the case of State vs. Carleton, 1 Gill (Md.) 249, the bond obli- gated the principal to pay over the money to the State "At such time as the Law shall direct." The Leg- islature fixed a later date for set- tlement than the one in force at the time the. bond was executed. It was held that this did not discharge the surety, on the ground that the condi- tion of the bond reserved to the State the right to grant an indulgence to the principal. In Lane vs. Howell, 1 B. J. Lea (Tenn.) 275, the County Court en- tered an order on its journal, ex- tending the time for tax collectors to make their settlements. It was held that the sureties were not dis- charged, but the decision rests upon the finding that the County Court had no power to suspend the law by its order, and therefore no binding extension wns effected bv the order. STJEBTYSHIP DEFENSES. 123 reason the co-sureties should be discharged to the extent of the contributory share of the surety whjose contract is extended."* An extension of time to one who is a surety will release a third person who is a surety for such surety. If A. is surety upon a note, and B. becomes, surety for A. the relation between A. and B. is that of principal and surety, and extension of time to A. without the consent of B. would seem to invoke the general rule of the discharge of the surety, and while the extension of time to the original surety has in no way abridged the right of the creditor against the maker of the note, yet such contract between the maker and the creditor is not the one which B. secures, but his promise relates wholly to the collateral contract made by A. with the payee, and any alteration of this contract releases B.^" §89. Giving time is not a defense if the surety is fully indem- nified. While the doctrine that the. surety is discharged by the giving of time is based upon the proposition that the fixing of a new ss Ide vs. Churchill, 14 0. S. 372 ; tile law upon bills of exchange. Gosserand vs. Lacour, 8 La. Ann. 75. Time given to the acceptor will dis- See also Way vs. Hearn, 11 C. charge the drawer. But I am not B. (N. S.) 774, Erie, G. J. aware that it applies between co- (782) : It is a well recogniaod sureties. Each surety is liable, rule of law, that if two per- jointly and severally, on this bond, sons are sureties for the perform- One surety cannot be injured by ance of an act by a third, op a given time having been given to another." day, and time is given by (to) one ^9 Jn Kennedy vs. Goss, 38 N. Y. without the consent of the other, 320. A promise of indemnity the latter is discharged." against a debt was secured by a. But see Contra — Dunn vs. Slee, surety, and the defendant was sure- Holt, N. P. 399, Park, J.: " Un- ty for such surety, the promisee in doubtedly, as between principal the indemnity contract assigned his and surety, time given to the rights against these sureties to the former, without the consent of original creditor who extended time the surety, will, under certain to the surety on the indemnity con- circumstances, discharge the sure- tract and brought this action against ty. This rule, which now ob- the second surety. The holding that tains in Courts of Law, was original- the defendant was not discharged ly borrowed from Courts of Equity; appears to rest upon the theory that and it is not technical, but founded the original debtor, not being af- in essential justice. We proceed by feeted by the extension to the sure- the same analogies, in our mercan- ty, might at any time pay the debt, 124 THE LAW OF SUKETYSHIP. date for the performance of the contract is a material altera- tion: Yet the reason for the application of such a rule fails, in part^ in cases where the surety has been fully indemnified against loss. [f the surety has in his possession property of the principal, 01- has some lien upon the property of the principal, sufficient to pay the debt, it is-,of no importance to him what al- teration of the main contract is agreed upon by the principal and the creditor. lender these circumstances the surety is in the situation of a principal and must pay the debt out of the property com- mitted to his trust the same as if he were the principal debtor."" §90. Extension of time as a defense to persons who are in the situation of a surety. When two or more persons are principal debtors in the original contract with the creditor, but by some subsequent arrangement between themselves one of them sustains the re- lation of surety as to the others, such promisor is in the situa- tion of a surety as to the creditor, if the latter has notice of the facts which make him surety as to his co-obligors.''^ This form of involuntary suretyship, tiiough imposed with- out the assent of the creditor, nevertheless puts upon the cred- itor the duty of observing the equities due the one who has been placed in the situation of a promisor in suretyship, and any extension of time to the original obligor, who by agree- ment or by operation of law has become principal obligor, will discharge the one in the situation of a surety. The same principle is involved in eases where the creditor supposes he is contracting with two persons as principal obligors, and in fact, one is as between the parties, merely surety for the other. Knowledge of the fact being brought and proceed against either of his so Smith vs. Steele, 25 Vt. 427; indemnitors, and therefore since the Chilton vs. Robbins, 4 Ala. 22.S: surety is not released as to the par- Kleinhaus vs. Generous, 25 O. S ty with whom he originally engaged. G67. he is not released as to the assignee "* Ante See. 23. of that party. SUEETYSHIP DEFENSES. 125 home to the creditor, he must thereafter treat the party as a surety."" This rests upon the theory that the injury to the surety, if his rights are disregarded, is the same, whether the creditor pos- sessed knowledge of the suretyship at the time or acquired it subsequently. The attitude of the parties to each other is the same, whether the suretyship is concurrent with the original contract, but without knowledge of the creditor, or whether it results from a subsequent event, in both cases, if the creditor has notice of it before the extension is made, the surety is released. This is illustrated in cases of the dissolution of a partnership, the re- maining partner assuming the obligations of the firm, the re- tiring partner being in the situation of a surety, is discharged by an unauthorized extension."^ The same relation of involuntary suretyship is established where property is sold subject to a mortgage, the purchaser as- suming payment, the mortgagor is in the situation of a surety, and an extension of time to the purchaser will discharge the mortgagor. This is the result of the holdings that a mortgagee may bring his action directly against the purchaser upon the covenants, assuming the debt of the mortgagor, and where the rule pre- vails that a mortgagee may sue the grantee at law, and in his own right, upon the mortgage debt, the holdings are nearly uni- form that a suretyship relation arises."* 02 Overend Gurney & Co. vs. Ori- Ind. 286 ; Johnson vs. Young, 20 W. ental Fin. Corporation, L. R., 7 H. Va. 614; Smith vs. Shelden. 35 L. 348; Bank of Missouri vs. Mat- Mich. 42. son, 26 Mo. 243; Pooley vs. Harra- Contra — Kawson vs. Taylor, 30 O. dino, 7 El. & Bl. 431; Lauman vs. S. 389, where it was held that the Nichols, 15 la. 161; Wheat vs. Ken- creditor is not bound to treat the dall, 6 N. H. 504; Guild vs. Butler, retiring partner as a surety. 127 Mass. 386. «* Union Life Ins. Co. vs. Han- 03 Rouse vs. Bradford Banking ford, 143 U. S. 187; 12 S. Ct. 437; Co., L. R., 2 Oh. 32; Home Bank vs. Calvo vs. Davies, 73 N. Y. 211; Waterman, 134 111. 461 ; 29 N. E. George vs. Andrews, 60 Md. 26 ; Ded- 503; Colgrove vs. Tallman, 67 N. Y. rick vs. Den Bleyker. 85 Mich. 475; 95; Bailey vs. Griffith, 40 Up. Can. 48 N. W. 633; Commercial Bank vs. (0. B.) 418; Williams vs. Boyd. 75 Wood. ."56 Mo. App. 214. 126 THE LAW OF SUBETYSUIP. But where the holding is that the grantee is not liable to the mortgagee upon the covenants in the deed relating to the mort- gage, no relation of suretyship can be established, since there exists no principal liability to which the collateral liability of suretyship can relate. Such is the rule of the Federal Court, except where that Court is controlled by State law.''° It is not necessary for tlie grantee to promise to pay the debt in order to constitute him a principal debtor, and so cr^te an equity of suretyship in favor of the grantor, at least to the ex- tent of the value of the property. J n such a case it has been held : " While no strict and tech- jiical relation of principal and surety arose between the mort- gagor and his grantee from the conveyance subject to the mort- gage, an equity did arise which could not be taken from the mortgagor without his consent, and which bears a very close resemblance to the equitable right of a surety, the terms of whose contract may have been modified. We cannot accurately denominate the grantee a principal debtor, since he owes no debt, and is not personally a debtor at all, and yet, since the land is a primary fund for the payment of the debt, and so his projierty stands specifically liable to the extent of its value in exoneration of the bond, it is not inaccurate to say that as grantee, and in respect to the land, and to the extent of its value, he stands in the relation of a principal debtor, and to the same extent the grantor has the equities of a surety. This follows inevitably from the right of subrogation, which in- heres in the original contract of sale and conveyance. It is a definite and recognized right, which, in the absence of an ex- press agreement, will be founded upon one implied." "" Contra — Corbett vs. Waterman, H the payee agreed to accept the pur- la. 80; James vs. Day, 37 la. 164. chaser as the principal debtor, and Set! also Denison University vs. that the payment of interest by Manning, 65 0. S. 138; 61 N. E. 706, the purchaser and the acceptance of where it is held that the sale of the same by the payee is not evi- morigaged premises with an as- dence of such agreement, sumption of the mortgage debt by sb Shepherd vs. May, 115 U. S. the purchaser does not of itself ere- 505; 6 S. Ct. 119: Keller vs. Ash- ate the relation of involuntary sure- ford. 133 U. S. 610: 10 S. Ct. 4!)4. tyi^hip, but that it must appear that "'^ ^Turray vs. Jlaishall. 94 N. Y. S UKETYS 1 1 1 r UJ4I<-EKSB;S. 127 Wliere a creditor holds a mortgage upon two pieces of prop- perty to secure the same debt, and the owner conveys one of them, the remaining property constitutes a primary fund, and the alienated property is in the situation of a surety, and will be released from the lien by an extension of time to the debtor." ^ §91. Extension by appeal or continuance in judicial proceedings. If judgment is rendered in an action upon a debt for which another has become liable as surety or guarantor, a subsequent appeal from this judgment, or the giving of a bond in stay of execution, while it stays all legal proceedings for the collection of the debt until the ease is heard upon appeal, or until the ex- piration of the time for which execution is stayed, yet it is not such an extension as will release the surety or guarantor. Where the appeal or stay is taken by the principal, it is not a transaction to which the creditor is a party, and although the creditor is prevented from enforcing his demand, it is not the result of his own act, and his contract with the surety cannot thereby be affected. If the appeal is taken by the creditor, the relations between the creditor and the surety are not affected, since the surety, notwithstanding the appeal, may at any time pay the debt and pursue his remedies against the debtor, and there being no binding extension, the surety is not released. The creditor is precluded by his appeal from collecting his debt till his case is reached in its order, but the surety at the moment the appeal is perfected, may pay in full the creditor's claim and be entitled at once to indemnity from the debtor. 611. "The grantee stood in the qua- anee he was not discharged, and as si relation of principal debtor only to that no right of his was in any in respect to the land as the primary manner disturbed." Travers vs. fund, and to the extent of the value Dorr, 60 Minn. 173 ; 62 N. W. 269. of the land. If that value was less «? Lowry vs. McKinney, 68 Pa. than the mortgage debt, as to the 294. In this case, the lien covering balance he owed no duty or obliga- two pieces of land was the result of tion whatever, and as to that the a judgment, and the judgment cred- mortgagor stood to the end, as he itor was held under obligations to was at the beginning, the sole prin- treat the alienated property as in •cipal debtor. Prom any such bal- the situation of a surety. 128 THK LAW OF SlIKKTYSHIP. For the same reasons, a continuance, under the rules of Court, of a pending action upon a debt for whicii another is surety, is not an extension, except where such, continuance is in pursuance of a binding agreement between the plaintiff and the defendant. Under these circumstances, the position of the surety has been changed, since payment to the creditor would not give to the surety the right to enforce his remedies against the principal imtil the time to which the parties by their con- tract had postponed the determination of the matter.** Sureties upon bail bonds in criminal proceedings are dis- charged by the continuance of the case by agreement between the State and the defendant, without the consent of the sure- §92. Extension of time with reservation of rights against the surety. The reservation of the creditor's rights against the surety, when made a part of the contract of extension with the prin- cipal, results in a qualified extension merely. The creditor has bound himself not to proceed against the debtor until the maturity of the extension, but he has not changed his relations with the surety, since he has specifically reserved his right to sue him at once. This reservation of rights against the surety being a condition of the contract for extension entered into with the debtor, the latter impliedly assents that the surety may have all his original rights preserved against him as prin- cipal debtor, and although the creditor must forbear suit against the principal, yet the surety, if he pays the debt, may sue the principal at once. There is therefore no alteration of the surety's contract and no equitable reasons for urging his discharge.'" 68 Wybranta vs. Lutch, 24 Tex. given the principal debtor, is that 309; Phillips vs. Rounds, 33 Me. 357. the rights of the surety are varied, «» Reese vs. U. S., 9 Wall. 13; U. as he cannot then, when the debt is S. vs. Backland, 33 Fed. Rep. 156. due and payable, make payment, and 70 Morgan vs. Smith, 70 N. Y. 537, thus put himself in the place of the Wolger,J. (545) : "The ground upon creditor, according to the original which a surety is held discharged implied contract, and enforce repay- when further time for payment is ment from the principal. Where SUEETYSHIP DEFENSES. 129 The remedies against the surety must, however, be expressly reserved. No such result can be established by implication.'^^ §93. Agreements not to sue as distinguished from agreements to extend — Effect upon surety. It is a mooted question whether a valid agreement to forbear suit can be pleaded as a bar to an action, or whether the reme- dies of the debtor upon the breach of such a contract are merely in damages. The best considered view seems to be that such an agi-eement operates directly upon the original con- tract, and is a bar to any action till the expiration of the limit fixed." A surety is therefore placed in the same situation as if there had been an agreement to extend the time, while tliere is not the remedies of the creditor are re- served against the sureties, notwith- standing the new agreement with the principal, the situation of the parties is not varied and the rule does not apply. When the creditor proceeds against the" surety in such case, and the surety pays. Tie is then entitled to the place of the creditor as it was originally, and may in turn enforce the principal, who may not set up against the surety the new arrangement with the creditor." Salmon vs. Clagett, 3 Bland's Ch. (Md.) 125, Bland, G. (p. ITS) ; '•' Such an agreement, reserving the remedies, might not, in many cases, be of the least benefit to the principal debtor; since it leaves him entirely at the mercy of his surety ; yet if the parties do so expressly contract, the surety can have no cause to com- plain, that the implied contract has been altered or impaired, in any way, to his prejudice; and therefoipe he cannot be discharged." Sohier vs. Lohring, 6 Cush. 537, Metcalf, J. . " It is very obvious that a principal debtor may gain little or nothing by such composi- tion as this with his creditor; Inah- much as he is left liable to a like proceedings against him by his sure- ties, which his creditor might have instituted, if no composition had been made. But if he pleases to subject himself to that liability, by voluntarily executing an agreement which has that effect, there is no le- gal reason why he should not be heh f to that agreement." Morse vs. Hunt- ington, 40 Vt. 488 ; Mueller vs. Dob achuetz, 89 111. 176 ; Dupee vs. Blake,. 148 111. 453; 35 N. E. 867; Bank of Biddeford vs. MeKenney, 67 Me_ 272; Kenworthy vs. Sawyer, 125 Mass. 28; Rueker vs. Robinson, 38 Mo. 154; Price vs. Barker, 4 El. & Bl. 760; Kearsley vs. Cole, 16 M. & W. 128 ; Owen vs. Homan, 4 H. L. C- 097 ; Boaler vs.; Mayor, 19 C. B. N.. S. 76; Austin vs. Gibson, 28 Up.. Can. (C. P.) 554; Hagey vs. Hill,. 75 Pa. 108; Koenigsburg vs. Lennig,. 161 Pa. 171. Contra — Gustine vs. Union Bank, 10 Rob. (La.) 412. 71 Boultbee vs. Stubbs, 18 Vt. 20. 72 Robinson vs. Godfrey, 2 Mieh. 408; Blair vs. Reid, 20 Tex. 310; Leslie vs. Conway, 59 Cal. 442; Sta- yer vs. Missiner, 6 Wash. 173; 32 130 THE LAW OF SUEETYSIIIP. strictly any alteration of the main contract, yet the surety is deprived of his right to pay the debt and to proceed against the debtor. It is also held that even though the effect of an agreement to forbear suit is not to bar an action on the original contract, vet the surety is discharged, since it is not to be presumed that the creditor would violate his compact with the debtor, and the creditor's hands being tied by the obligation imposed upon his conscience, as well as the liability to damages, the surety will be released.'^ §94. Waiver of the defense of extension of time. If a surety or guarantor with knowledge of an extension of time, without his consent, to a principal, promises to pay the debt, he vdll be deemed to have waived the defense.''* It is not necessary that such promise be made with knowl- edge of the legal effect of the extension as a defense. Where the facts are known and the party is so situated that by the use of ordinary diligence' he might have become acquainted with his legal rights, and he neglects to do so, his ignorance is voluntary. ^^ The new promise is not considered an independent under- taliing, but a revival of the original promise and hence does not require a new or additional consideration,''' and such promise need not be in writing. A promise by the surety or guarantor to pay the debt, or an Pac. 995; Tatlock vs. Smith, 6 Bing. Ind. 128; Austin vs. Dorwin, 21 Vt. 539; Stracy vs. Bank of England, 6 38. JBing. 754; Allies vs. Probyn, 2 7* Fowler vs. Brooks, 13 N. H. €romp. M. & R. 408. 240; Porter vs. Hodenpuyl, 9 Mich. The contrary doctrine is support- 1 1 ; Sigourney vs. Wetherell, 6 Met. «d in Ford vs. Beech, 11 Q. B. 852. 553; Bank vs. Johnson, 9 Ala. 622; See also Frazer vs. Jordan, 8 El. & Bank vs. Whitman, 66 111. 331 ; Bl. 303; Irons vs. Woodfill, 32 Ind. Rockville Bank vs. Holt, 58 Conn. 40 ; Mills vs. Todd, 83 Ind. 25 ; 526 ; 20 Atl. 669. Brown vs. Shelby, 4 Ind. 477. '= Rindskopf vs. Doman, 28 0. S. 73Greely vs. Dow, 2 Met. 176; 516. llarbert vs. Dumont, 3 Ind. 346 ; '« Bramble vs. Ward, 40 0. S. 267. Dickerson vs. Com. Ripley Co., 6 SUBETYSIIIP DEFENSES. 131 admission of liability mad© without knowledge that an exten- sion has been granted to the principal, will not be binding." The waiver of extension may be the subject of contract at the time of the making of the main contract, by the use of any ap- propriate words showing such intention ; thus : " It is under- stood that the liability of neither of us is to be affected by further time being given for payment." '* Mere acquiescence by the surety in an extension of time to the principal, as where the surety knows of the giving of time to the principal, and fails to object to it, will not amount to a waiver of his rights. ''° Some definite, affirmative consent to the extension or waiver must be shown, although circumstances will sometimes show an estoppel in favor of the creditor, such as where an agreement is made between the creditor and the principal for an extension, upon the condition that the guar- antor will make a part payment, and the guarantor in pur- suance of this agreement makes the payment.*" But it is held that the writing of a letter by the guarantor to the creditor after the maturity of the debt, requesting that the creditor give the debtor " a reasonable chance " to pay and to give him " time and opportunity to pay " was not a waiver or consent to an extension.*'' §95. Delay of the creditor in pursuing remedies against the principal as a defense to the surety or guarantor. Mere delay on the part of the creditor to proceed against the principal does not release the surety or guarantor. The cred- itor owes no duty of active diligence to his promisor in surety- ship, except where such duty is made the subject of a condi- tion, either express or by necessary implication. 77 Fay vs. Tower, 58 Wis. 286 ; 16 ■"> Stewart vs. Parker, 55 Ga. 656 ; N. W. 558 ; Merrimack Co. Bank vs. Edwards vs. Coleman, 6 T. B. Mon. Brown, 12 N. H. 320; Savings Bank (Ky.) 567. vs. Chick, 64 N. H. 410 ; 13 Atl. 872 ; so Briggs vs. Norris, 67 Mich. 325 ; Montgomery vs. Hamilton, 43 Ind. 34 N. W. 582. 451 ; Kerr vs. Cameron, 19 U. P. si Springer Lith. Co. vs. Graves, (Q. B.) 366. 97 la. 39; 66 N. W. 66. 78 Miller vs. Spain, 41 O. S. 376. 132 XHli LAW OF SUKBTYSHIP. The promisor has ample protection against the negligence and delay of the creditor in the privil^e of paying the debt and bringing his own action against the principal, or by pro- ceeding in equity to compel the principal to pay, or by requir- ing the creditor to sue the principal in accordance \dth statu- tory provisions, and he will not be permitted to exact from the creditor a greater degree of diligence than he himself is will- ing to exercise in his own interests. This view is maintained even in cases where the delay is such as to deprive the creditor of a right of action against the principal. If the principal is deceased, and the creditor fails to prosecute the claim against the estate until barred by a stat- ute, he may nevertheless proceed against the surety of the dece- dent.«^ Also where the principal has made a general assignment for the benefit of his creditors, the creditor may delay the pres- entation of his claim to the assignee, till barred by statute as against the assignee, and not lose his rights against the surety of the assignor.^' ■i*Villars vs. Palmer, 67 111. 204; on his own behalf. Now when the Moore vs. Gray, 26 O. S. 525 ; Hooks statute of limitations has run as vs. Branch Bank, 8 Ala. 580; Banks against the principal, the law ex- vs. State, 62 Md. 88; Willis vs. cuses him from setting up any mer- Chowning, 90 Tex. 617; 40 S. W. itorious defense which he may have, 395. and allows him to rely upon the But see Waughop vs. Bartlett, technical defense of the statute 165 111. 124; 46 N. E. 197. alone. The theory is that he was 83 Dye vs. Dye, 21 O. S. 86; Rich- not under any obligations to pre- ards vs. The Commonwealth, 40 Pa. serve any longer the evidence of his 146. meritorious defense if he had any, See also Sichel vs. Carrillo, 42 and so the Court will not inquire Cal. 500; Bull vs. Coe, 77 Cal. 54; whether he had such defense or not. 18 Pac. 808; Smith vs. Gillam, 80 The Statute has been properly de- Ala. 296 ; Halderman vs. Woodward, nominated the statute of repose. As 22 Kan. 734 ; Cohea vs. Commission- the surety is "allowed to set up any ers, 15 Miss. 437. meritorious defense which the prin- ts o to t r o — Auchampaugh vs. cipal might have set up, we are not Schmidt, 70 la. 642; 27 N. W. 805, able to see why he should be re- Adams, J.: "It would not be de- quired to preserve the evidence of nied that a surety upon a note may such defense after the principal was set up any meritorious defense which not bound to do so. Again, when a the principal, if sued, might set up surpty pays a debt, it is his right SUKBTYSHIP IWdlfBNSES. 133 Where the claim is not liquidated, and the surety for that reason has no opportunity to pay within the time limited by statute, the rule cannot be applied without great injustice to the surety. Sureties upon bonds of public officers, and bonds of a fidelity character, are placed in a different attitude with the creditor than sureties tipon contracts for the payment of a definite amount at a definite time. Where the statute provides that actions for misfeasance in office are barred within a certain time, actions against the sureties upon the bond of the officer, are barred by the same limitation.** It has been held that although the statute of limitations bars the creditor from recovering from the principal, yet the surety who pays this debt, may recover from the principal.*** This view, although seemingly erroneous, must be held to prevent, wherever adopted, any discharge of the surety based upon a statute of limitation as to the creditor. ^96. Payment or other satisfaction as a discharge of the surety or guarantor. No liability continues against a promisor in suretyship if the principal obligation has been satisfied by payment, or the tsubstitution of otiier security in the place of the original surety- ship contracts to look to the principal for reim- lost, or, in the multitude of official ■bursemcnt. But a surety paying a duties, the circumstances have been debt, after it had become barred forgotten. After all this care to ngainst the principal, would be re- protect his rights and interests, it mediless." Bridges vs. Blake, 106 would indeed be singular if it was Ind. 332; 6 N. E. 833. intended to leave open his liability 8* State vs. Conway, 18 O. 234; in another form for the same causes, .State vs. Blake, 2 O. S. 151. to be supported by exactly the same Ranney, J. : " The Legislature evidence, and attended by the same lias in terms limited all actions consequences, for fifteen years; thus, against the officer for malfea- to every intent and purpose, nullify- •sance and nonfeasance in office to ing the whole policy of the other one year. This is done for his pro- provision." tection asainst these charges, made sia Marshall vs. Hudson. 9 Yenj after it may well be presumed, the (Tenn.) 57; Reeves vs. Pulliam, 1 *vi(li>nco to -refute tlicrn has been Baxt. (Tenn.) 119. 134 Tl-IE LAW OF SURETYSHIP. If the debt has been paid in part, the promisor is discharged pro tanto.^^ Where the debtor owes two debts, to the same creditor, one of which, is secured by a surety or guarantor and the other unse- cured, and he pays generally on account, without any direc- tions as to how the payment shall be applied, and no applica- tion is made by the creditor, the law will apply the payment on the secured debt.*" The creditor may, however, make the application to the unsecured debt, if the debtor in paying does not stipulate how it shall be applied. *' It has been, held that where a creditor holds collateral to secure several debts of the same debtor, some of which are se- es Solary vs. Stultz, 22 Fla. 263 ; Gould vs. Robson, 8 East. 580. 8S Bond vs. Armstrong, 88 Ind. 65 ; Eddy vs. Sturgeon, 15 Mo. 199 Gard vs. Stevens, 12 Mich. 292 Webb vs. Dickenson, 11 Wend. 62 Pierce vs. Knight, 31 Vt. 701. 87 Harding vs. Tiflft, 75 N. Y. 461, Bapallo, J. : " It is contended that the right of the creditor to make the application is subject to the condi- tion that such« application be not inequitable, and such is the lan- guage used in some of the authori- ties cited. The equities referred to however are usually equities exist- ing between the debtor and the cred- itor, and I have found no case rec- ognizing those arising out of transactions between the debtor and third persons, of which the creditor has no notice. The mere fact that there is a surety for one of the debts does not preclude the creditor from applying a payment thus re- ceived to the debt for which he has no security The money belongs to the debtor, and where the creditor is ignorant of any duty on the part of the debtor in respect to it, he may receive and apply it as if no such duty existed. If no application had been made by either party, and the duty were east upon the Court of making the proper application, the equities of the surety would doubtless be considered. But where the application has been made by the creditor, in accordance with his apparent legal right, and in ignor- ance of any fact which should pre- vent him from making such appli- cation, I do not think he is bound to change it on the subsequent dis- closure that a third party had an in- terest in having it otherwise applied and that the debtor had violated a duty to such third party in not di- recting such application It would create great confusion in commercial dealing, to hold that after the lapse of time, and when the position of the parties may have been changed by such a payment, the transaction could be reopened and the creditor be obliged to revive an unsecured debt which he had treated as paid, and apply the payment on a debt for which he had ample se- curity." Hanson vs. Rounsavell, 74 111. 238; Mathews vs. Switzler, 46 Mo. 301; Morrison vs. Bank, 65 N. H. 253; 20 Atl. 300. SUKETYSIIIP DEFENSES. ise cured also by sureties and others not, tliat tlie creditor may apply the proceeds of the collateral first to the payment of the debts for which there are no securities/' A refusal to accept a tender of payment by the principal ■will release the promisor in suretyship/" A refusal of a ten- der made by the surety will have the same effect. "^ A distinction must be made, however, between a tender and a mere offer to pay. A tender is something more than a readiness to pay. It is asserting a legal right to discharge tho% debt by presenting to tbe creditor the amount in lawful money and demanding its acceptance. Merely being ready and will- ing to pay does not put upon the creditor any duty to protect- tlie surety by accepting payment."^ The taking of additional security will not discharge a surety or guarantor, whether such additional security consists of the addition of a new name as surety on the same instrument,"^ or the deposit of new collateral, or the giving of some other form of additional ind&mnity."^ §97. Liability against surety or guarantor revived if payment or substituted security is void. The payment of a debt for which another is surety or guar- antor, or the substitution of a new security in place of the original suretyship contract, the latter being surrendered, ends 88 Wilcox vs. Fairhaven Bank, 7 trust into a mere private liability. Allen 270. State vs. Alden, 12 0. 59. 89 Joslyn vs. Eastman, 46 Vt. 258 ; »o Hayes vs. Joseph, 26 Cal. 535 ; Pislier vs. Stoekebrand, 26 Kas. 565; O'Conor vs. Braly, 112 Cal. 31; 44 Curiae vs. Packard, 29 Cal. 194; Pac. 305. Randol vs. Tatum, 98 Cal. 390; 33 "i Clark vs. Siekler, 64 N. Y. 231; Pac. 433; Spurgeon vs. Smith, 114 liiller vs. Howell, 74 Ga. 174; Wil- Ind. 453; 17 N. E. 105; Smith vs. son vs. McVey, S3 Ind. 108. Old Dominion Building Assn., 119 92 Ante See. 75. N. C. 257 ; 26 S. E. 40. o^ Trustees of Presbyterian Board ■ It is held, however, that the rule vs. Gilliford, 139 Ind. 524; 38 N. E. stated in the text does not apply to 404 ; Sigourney vs. Wetherell, 6 Met. the sureties upon the bond of a pub- 553 ; Wadsworth vs. Allen, 8 Gratt. lie officer, where the principal is in 174; Citizens Bank vs. Whinery, default of the performance of his 110 Iowa 390; 81 N. W. 694; Hand official duty, and that a tender and Mfg. Co. vs. Marks, 36 Ore. 523 ; 52 refusal does not convert an official Pac. 512; 53 Pac. 1072: 59 Pac. 549. 136 THE LAW OF SURETYSHIP. the transaction so far as the suretyship promisor is concerned and exonerates him from all further liability. While this proposition is self-evident, yet it must be ob- served, that in contemplation of the law, nothing amounts to payment or satisfaction which has no value, and if that which is taken in payment is not what it purports to be, or the use or retention of it by the party receiving is prohibited by law, or for any reason becomes a nullity, then the so-called payment or substitution is not a satisfaction of the original contract, and in the absence of actual or constructive waiver of these in- firmities in the mediiim of paymemt, the original contract, al- though surrendered, will be revived, and the liability of the surety or guarantor restored. One of the essential elements of a novation, or the substi- tution of a new for an old obligation, is that the new contract must be a valid one upon which the creditor may have his remedy."" If the principal pays the debt contrary to the provisions of the insolvency laws, so that the creditor is required to surrender the amount paid as an unlawful preference, the surety may be held, although the evidences of the indebtedness have been, givu up, at the time of the payment."' If a new note is given in renewal of another, and the sig- 94 Spyeher vs. Werner, 74 Wis. trustee, and brought suit against 456; 43 N. W. 161; Clark vs. Bil- the surety on the note. The surely lings, 51 Ind. 509; Bristol Milling & pleaded payment by the principal, Mfg. Co. vs. Probasco, 64 Ind. 413. and it was held that the surety was 05 Petty vs. Cooke, L. E. 6 Q. B. not released. Pritchard vs. Hitch- C. 790. In this ease the payee of a coek, 6 Man. & Gr. 151. promissory note accepted the It is also held that even though iimount thereof in good faith from the creditor receives the unlawful 111C principal, and without notice preference with knowledge of the ihat the payment was a fraudulent insolvency of the principal, he may preference, and surrendered the note. nevertheless when compelled to sur- The principal afterwards entered render the preference, recover from into a composition deed for the ben- the surety. Harner vs. Batdorf, 35 eiit of his creditors. The trustee 0. S. 113; Watson vs. Poague, 42 under the deed avoided the payment la. 582. as a fraudulent preference and the But see Northern Bank of Ken- payee returned the amount to the tucky vs. Cooke, 13 Bush (Ky.) 340. SUKKTYSHIP DEKIiiSISKS. 137 iiatui'e of the new note is forged, and tbe creditor relying upon the new note being genuine, surrenders the old note, the liability of the surety on the original note is not extinguished.'* Also where an obligation taken in renewal is void on account of usury, the liability of the original contract is revived."' If the substituted contract is void, by reason of coverture or infancy or any other disability of the party executing it, the creditor will be restored to ail his rights under the original contract, ''^ and the same rule applies where a new contract is void because executed without authority.*"* §98. Voluntary release of security held by the creditor or upon which the creditor has a lien. If the creditor has in his possession property of the principal as an additional security for the debt, or has acquired a lien upon the property of a principal, the creditor at once becomes charged with the duty of retaining such security, or maintain- ing such lien in the interest of the surety, and any release or impartment of this security as a primary resource for the pay- I »n Lovinger vs. First Nat'l Bank, demand." In this case the creditor -81 Ind. 354; Goodrich vs. Tracy, 43 brought suit on the substituted se- Vt. 314; Kincaid vs. Yates, 63 Mo. curity, which was tainted with 45; Bank vs. Buchanan, 87 Tenn. usury, the defense of usury being 32 ; 9 S. W. 202 ; Emerine vs. pleaded, he dismissed the action, and O'Brien, 36 O. S. 491 ; Allen vs. brought suit against the defendant, Sharpe, 37 Ind. 67; Bitter vs. Sing- who was surety. The general rule master, 73 Pa. 400; Second Nat. that if a substituted contract is void Bank vs. Wentzel, 151 Pa. 142; 24 on account of usury, the original Atl. 1087. contract is revived, may be deemed "7 Bank vs. Dauckmeyer, 70 Mo. supported by the great weight of au- App. 168; Winsted Bank vs. Webb, thority. Burnhisel vs. Firman, 22 39 N. Y. 325. Wall. 170; Swartwout vs. Payne, 19 But see La Farge vs. Herter, 9 N. Johns. 295 ; Lee vs. Peckham, 17 Y. 241, where it is held "The usu- Wis. 394. rer is not allowed to show that an »» Godfrey vs. Crisler, 121 Ind. obligation which he has taken in 203; 22 N. E. 999; M'CrilliJ vs. satisfaction of a prior demand, is How, 3 N. H. 348. usurious and therefore void, in or- »» Glass vs. Thompson, 9 B. Mon. der to avoid the effect of such obli- (Ky.) 237; Williams vs. Gilchrist, gation as a satisfaction of a prior 11 N. H. 535. 138 THE LAW OF SUEETYSIIIP. ment of a debt, will discharge the surety to the extent of the value of the property or lien released. This is not because the parties have made any contract in respect to the additional security, but it results from the in- herent equities of a suretyship relation.^"" The creditor is under no obligation to the promisor in suretyship to acquire any lien upon property of a principal, unless so required by the conditions of his contract, such as a guaranty of collectibility, where such duty may sometimes be implied ; neither is the creditor obliged to taken any steps to get into his possession any of the property of the principal,^*"- but if, in the process of collecting the debt by proceedings at law the creditor does secure a lien by execution or attachment -or otherwise, or receives into his possession some of the prop- erty of the debtor as additional security, there immediately arises a trust' relation between the parties, and the creditor as trustee is bound to account to the surety for the value of the se- curity in his hands. The entire doctrine of subr<>gation in suretyship is depend- ent upon the immediate investment of the creditor with the obligations of a trustee whenever any rights or interests of the debtor, applicable to the debt, are placed in his control, ^°^ and it is the right of the surety to be discharged if the creditor by his voluntary act deprive him of the benefit of tJiis subrogation. It readily appears, therefore, that the reasons that imderlie this rule apply with equal force, whether the lien or custody of the property is acquired at the time the suretyship contract is entered into or afterwards. ^°^ i»o Henderson vs. Huey, 45 Ala. burn, 10 Ore. 158; Clow vs. Derby, 275; Winston vs. Yeargin, 50 Ala. 98 Pa. 432; Templeton vs. Shakley, 340; Kirkpatrick vs. Howk, 80 111. 107 Pa. 370; Day vs. Ramey, 40 0. 122; Weik vs. Pugh, 92 Ind. 382; S. 446; Plankinton vs. Gorman, 93 Guild vs. Butler, 127 Mass. 386; Wis. 560; 67 N. W. 1128; Pearl vs. Cummings vs. Little, 45 Me. 183; Deacon, 24 Beav. 186. Stallings vs. Bank, 59 Ga. 701; loi Otis vs. Van Storeh, 15 R. I. Bank of Monroe vs. Gifford, 79 la. 41; 23 Atl. 39; Friend vs. Smith 300 ; 44 N. W. 558 ; Union Bank vs. Gin Co., 59 Ark. 86 ; 26 S. W. 374. Cooley, 27 La. An. 202; Taylor vs. 102 Post Chapt. 10. Jeter, 23 Mo. 244 ; Brovcn vs. Rath- los Campbell vs. Rothwell, 47 L. StTEETYSlIIP DEFENSES. 139 If the suretyship contract was made upon the condition that the principal shall furnish tlie creditor additional security, and the security being furnished under these conditions, is af- terwards released by the creditor, the surety is wholly dis- charged, without regard to the value of the securities released, for such a transaction amounts to an alteration of the main contract.^"* In siich a case the surety is entitled to his discharge even though the securities released have no value, but where the rights of the surety are dependent merely upon his equity of subrogation, as distinguished from, an alteration of the con- tract, the surety can have no relief if the securities released are without value/'"^ It is incumbent upon the creditor, however, to justify his re- linquishment of securities by showing the worthlessness of the property or lien released.^°° It has been held to be a complete defense to the surety to show that the creditor has released securities of the value of the debt, even though there remains in the hands of the creditor J. C. L. 144; Pledge vs. Buss, John- 669; Watts vs. Shuttleworth, 7 son 663; Holland vs. Johnson, 51 Hurl. & Nor. 353. Ind. 346; Freaner vs. Yingling, 37 i^s Hardwick vs. Wright, 35 Beav. Md. 491; Willis vs. Davis, 3 Mipn. 133; Rainbow vs. Juggins, 5 Q. B. 17. Div. 422 ; Blydenburgh vs. Bingham, It is not necessary that the surety 38 N. Y. 371; Green vs. Blunt, 59 have any knowledge of the addi- la. 79 ; 12 N. W. 762 ; Lilly vs. Rob- tional security at the time he signs,/- erts, -58 Ga. 363. or at the time the security is given; losMoss vs. Pettingill, 3 Minn, he becomes a beneficiary of the trust ,217; Dunn vs. Parsons, 40 Hun 77; relation, without notice of its exist- / Allen vs. O'Donald, 23 Fed. Rep. eiice, and can claim its benefits when- j 573. ever brought to his knowledge. / If the creditor fails to meet this Mayhew vs. Crickett, 2 Swanst. \ burden by making no proof as to the 1S5, Lord Eldon, C: " Sureties are value of the property or lien re- entitled to the benefit of every se- leased, he will be deemed to have curity which the creditors had converted tlie property at its face against the principal debtor, and value and must release the surety whether the surety knows the exist- to the extent of such face value, ence of those securities is imma- Fielding vs. Waterhouse, 8 Jones & terial." Spen. 424. io« Polak vs. Everett, 1 Q. B. Div. 140 THK XAW OF SUEETYSHIl'. Other securitiaB, applicable tx) the debt, sufficient in value to pay the debt, and to which the surety upon recovery against him, would be subrogated, on the ground that the creditor has violated a vested right of tlie surety, and will not be permitted, at will, to throw upon the surety, the risk of making the balance of his securities reach far enough to cover the debt.^"' But the substitution of other securities of equal value,^"* or a compromise in good faith of a disputed collateral or lien,"' vdll not release the sureties, for these transactions neither in- jure the surety nor change his position. §99. Belease of securities by the misconduct of the creditor. It is the duty of the creditor to exercise ordinary diligence in preserving the securities in his control which are applicable to the debt for which another is surety or guarantor. The conse- quences to the promiso-r are the same whether such securities are voluntarily released, or are lost or destroyed through the carelessness or negligence of the creditor, and the promisor has the right to require the creditor to exercise the same care in protecting this property in his interest, as a prudent man would exercise in his owb interest. If the creditor leaves the property unprotected so that it is stolen or destroyed, he must answer to the surety for its value. The use of ordinary cai'e will, however, relieve the creditor from liability to the surety for stolen or lost securities.^^" Another form of negligence is where the creditor by his in- activity or lack of diligence, fails to do the things necessary to make the securities available. ...JOT Holt vs. Boaey, 18 Pa. 207. Young, 6 Gill McLaughlin vs. McGovern, 34 vs. Robertson, 77 Ga. 40; Water- Barb. 208 : Sterns vs. Marks, 35 bury vs. Andrews, 67 Mich. 281 ; 34 Barb. 565; Russell vs. Annable, 109 N. W. 575; Ante Sec. 15. Mass. 72. dissentinn' opinion, Wells. SUEBTYSHIP DEFENSES. 151 guarantor, was held to be a fraud, for which he was entitled to be released/*^ Again the creditor represented to the surety that the debt had been compromised, and that the note which the surety signed, was in full settlement, whereas, the principal was, by tbe terms of settlement, required to give his unsecured note for an additional amount. This was considered a fraud upon the surety, since the inducement to his contract was the benefit he supposed he was to confer on the principal by enabling him to compromise his debt.^^' The surety has the right to insist that the principal receive the precise benefit which the creditor stipulated that he should receive, and the contract may be avoided by any wilful deceit practised upon the surety in this respect. It is not sufficient to show that the benefit to the principal in the contract which was made, was equal in value to that which the creditor stipu- lated, but if the surety has been induced by deceit to enter into a bargain which he did not intend, he need not stand by it.^** 142 Pidcoek vs. Bishop, 3 Barn. & ability. In this they were deceived, Cr. 605. and through the concealment of the 1*3 Weed vs. Bentley, Hill 56 ; plaintiff, payee of the notes, the ob- Pendlebury vs. Walker, 4 Younge & ject was not attained. By reason C. Ex. 424. of the fraud it was within the Powers Dry Goods Co. vs. Harlin, power of innocent creditors to ig- 68 Minn. 193; 71 N. W. 16. In this nore the composition, and recover case the principal made settlement the balance due upon their claims, with his creditors for a composition The ability of the debtors to meet at 331/3 per cent., and with one of their notes or to indemnify the sure- the creditors he made a secret agree- ties was hazarded and impaired at ment to pay a larger sum. The once by the contingency." surety upon the note of the creditijr But see Mead vs. Merrill, 30 N. making this secret arrangement, was H. 472 ; Booth vs. Storrs, 75 111. 438. held to be discharged. The Court mTrammell vs. Swan, 25 Tex. said: "The objeo* of that agree- 473; Ham vs. Greve, 34 Ind. 18. raent was to release the debtors from In this case the surety was in- a portion of their indebtedness, and duced to sign the note on the repre- the sureties entered into their con- sentation that it was in payment tract for this purpose, induced so to for goods then being sold to the do by the representations and belief principal, but in fact, it ■ was in that the debtors were to be freed settlement of a pre-existing debt, und released from any further li- 152 THE LAW OF SUEETYSIIIP. P06. Same subject — Concealment or non-disclosure of facts by. the creditor. A concealment or suppression of material facts which affect the risk of the promisor will amount to fraud and constitute a defense to the suretyship promise. The law requires good faith on the part of the beneficiary of the contract, and it is the duty of the creditor to disclose information which he has cour cerning the princiiDal which, if known to the promisor, would prevent him from entering into the contract/*'' If the creditor is applied to for information, or if the cir- cumstances are such that the promisor is in a relation of confi- dence with the creditor, a failure to disclose everything within his knowledge, that is material for the promisor to know, is equivalent to an affirmative misrepresentation."^ It is not necessary to show that the concealment or failure to disclose facts material for the surety to know is wilful, or with intent to deceive."^ It is sufiicient if the non-disclosure is construo- "5 Ante Sec. 15. mi Bank vs. Anderson, 65 la. 692; 22 N. W. 929; Remington Sew. Maeh. Co. vs. Kezertee, 49 Wis. 409 ; 5 N. W. 809; Harrison vs. Lumber- men Ins. Co., 8 Mo. App. 37 Benton Co. Bank vs. Boddicker, 105 la. 548; 75 N. W. 632, Robin- son, J. : " The contract of surety- ship is, as a rule, for the benefit of the creditor, he is, in dealing with the surety, to observe the utmost good faith, and if he fail to do so, without a sufficient excuse for his neglect, the surety will be diseiiarged to the extent to which he suffers hy reason of the lack of good faith Ark. 525. 167 Famulener vs. Anderson, 15 0- S. 473; Rhea vs. Gibson, IC Gratt. 215. See also Preston vs. Hull, 2:1 Gratt. 600, where the same rule w.t ^ applied, where a blank for the name of the obligee was iilled by the prin- cipal. ItjiJ THE LAW OF SUEETYSHIP. §110. Suretyship contracts made in reliance upon promises of the creditor. Fraud cannot be predicated upon a misrepresentation of things not in existence ; only present or past transactions can be tiie subject of fraudulent misrepresentation. A promise or stipulation by the creditor that certain things will be done by himself or others, or that certain facts will exist, where the doing of these things is not made a condition of the contract, can not be set up as a ba^is of defense by the Surety or Guar- antor, even though the contract is made in reliance upon the promise or stipulation. In a legal sense, it is not fraudulent to promise to do a thing, even without any intent of fulfilling the promise.^"^ A promise^ however, to do a thing, or that certain facts will exist in the future, may be fraudulent, if the happening of such event is knovsm to the party promising as being impossible, or where from his position, or opportunities for information, he is presumed to know what he promises cannot take place. Such m.isreprese(ntation although relating to future events will amount to deceit, and will be actionable as a basis for rescission of contract.^"^ The same rule applies to suretyship contracts. Where the creditor represented that the accounts of the principal would be audited every two weeks, and the surety signed the bond in reliance that hp would have the benefit of i«8 People vs. Healy, 128 111. 9; ture earnings of a corporation and 20 N. E. 692; Kitson vs. Farwell, made by a person having superior 132 111. 327; 23 N. E. 1024; Cassel- knowledge of the earning power of berry vs. Warren, 40 111. App. 626; the corporation; such representation Gallager vs. Brunei, 6 Cowen 346; «not being true was held to amount Sheldon vs. Davidson, 85 Wis. 138; to actionable deceit. 55 N. W. 161 ; Warner vs. Benjamin, It is by application of this rule 89 Wis. 290; 62 N. W. 179; Mooney that a. purchase of merchandise is vs. Miller, 102 Mass. 217; Dawe vs. held to be constructively fraudulent Morris, 149 Mass. 188; 21 Atl. 313; if the vendee has no reasonable ex- Kobertson vs. Parks, 76 Md. 118; pectation of being able to pay for 24 Atl.' 411; New Brunswick Land the merchandise at maturity. Tal- Co. vs. Conybeare, 9 H. L. 711. cott vs. Henderson, 31 O. S. 162; 100 French vs. Eyan, 104 Mich. Powell vs. Bradlee, 9 Gill & Johns. C-25; 62 N. W. 1016. In this case (Md.) 220. the reprcsonl.ition was as to the fu- S0EETYSHIP DEFENSES. 163 this safeguard, it was held not to be a defense that the creditor failed to do as stipulated.^"" Also the same rule was applied in a case where a retiring partner promised his guarantor against the iirm debts, that he would not resume business. The guarantor who had been in- duced by this promise to enter into the undertaking was held liable, notwithstanding the retiring partner violated his agree- §111. Conditional contracts of suretyship — Parol evidence not competent to show conditions. A surety or guarantor will not be bound if the contract con- tains conditions which are not complied with. The common examples in which this rule is applied, are those cases in which notice of default, or demand upon the principal is stipulated,"' or the guaranty is one of collectibility, involving by necessary implication the condition of due diligence.^'^ The promisor is entitled to stand upon the exact terms of his bargain, even though he may suffer no damage from the breach of it. Such defense can not, however, be inaintained unless the con- dition is expressed or necessarily implied from the writing as a part of the contract itself. This is the direct result of the Statute of Frauds, requiring the promise to be in writing, as well as the established rule of written contracts, that conditions cannot be imposed by parol. But distinction must be made between conditions precedent and conditions subsequent ; it is the latter which must be written 170 Benham vs. Assurance Co., 7 if, at the time tKey were made, it Welsh. H. & G. 744; Towle vs. Nat. was not intended to comply with Guardian Assurance Society, 3 Giff. them, it was but an unexecuted in- 42. tention, which has never been held, 171 Gage vs. Lewis, 68 111. 604, of itself, to constitute fraud. If Schoefield, J. : " It can not be said they legally amount to anything, that these representations and prom- they constitute a contract." iscs were faJse when made, for until See also Municipal Council vs. the proper time arrived, and plain- Peters, 9 Up. Can. (C. P.) 205. tiff refused to comply with. them, it i72 Ante See. 68. could not positively be known that "3 Ante Sec. 62. they would not be performed. Even 164 THE LAW OF SUEETYSHIP. in the contract. If the condition is that the contract is not to be delivered or take effect except upon the happening of a cer- tain event, such as, for example, that it is not to be delivered or not to take effect unless another signs as co-surety ; such condi- tion may be. shown by parol, and knowledge of this condition on the part of the creditor being established, the surety will not be held unless the co-siirety signs.^" If the condition relates to th© performance of the contract, and operates to prevent the enforcement after the rights of the parties have vested, as distinguished from conditions which pre- vent either party from becoming bound in the first instance, the Statute of Frauds, as well as the ordinary rules of evidence relating to written instruments, will exclude parol proof in establishing such conditions. A surety or guarantor cannot show by parol that the liability assumed was not to be enforced unless a certain contingency should arise.^^^ i'*Fertig vs. Bucher, 3 Pa. 308; Campbell Print. Press Co. vs. Pow- ell, 78 Tex. 53; 14 S. W. 245; ^mith vs. Kirkland, 81 Ala. 345; 1 South. 276; Cowan vs. Baird, 77 N. C. 201 ; Read vs. McLemore, 34 Miss. 110; Goff vs. Bankston, 35 Miss. 518; State Bank vs. Burton-Gardner Co., 14 Utah 420; 48 Pac. 402; Bivins vs. Helsley, 4 Met. (Ky.) 78; Cor- poration of Huron vs. Armstrong, 27 Up. Can. (Q. B.) 533; Evans vs. Bremridge, 8 DeG. M. & G. 100. The theory of this class of cases is that such delivery to the principal by the surety, or by the principal to the creditor, coupled with a con- dition, creates an escrow, and no liability attaches till the terms of the escrow are met. It seems, how- ever, that some cases hold that an escrow can not be created by a delivery to the obligee, and that con- ditions made with the obligee can not be shown by parol. Moss vs. Riddle, 5 Cranch 351; Murphy vs. Hubble, 2 Duv. (Ky.) 247. It is held that if the delivery is made to the obligee by a stranger, the obligee is bound to inquire whether any conditions were at- tached to the delivery, and fail- ing to do so, will be bound by the condition, although hav- ing no actual knowledge of it. State vs. Peck, 53 Me. 284; Smith vs. Moberly, 10 B. Mon. (Ky.) 266 Deardorff vs. Foresman, 24 Ind. 481 Nash vs. Fugate, 24 Gratt. 202 Passumpsic Bank vs. Goss, 31 Vt. 315. Also, if the bond is delivered to the obligee in an incomplete form, such as containing in the body of the bond, names the co-sureties who do not appear as signers, the obligee is chargeable with constructive no- tice of the condition that co-suieties were to sign. Ante Sec. 109. 175 Miller vs. Ridgely. 22 Fed. sL'KETYSIIIP BKFENSES. 1G5 Conditions imposed by law need not be set out in the con- tract; thus where the law provides that no action shall be brought up&n the bond of a public officer, unless an order of court has been entered directing the officer to pay ; such condi- tion may be pleaded as a bar, without being stipulated in the contract.^'* If the law supplies the condition that more than one surety shall sign, a sole surety should not be held. He should be per- mitted, without risk to himself, to rely upon public officers per- forming their full duty, in not accepting bonds except in con- formity to law.^'" It has sometimes been considered that the requirement of statute for more than one surety is a provision wholly for the benefit of the public, and that the beneficiary, acting through the proper public officer, may waive such benefit without in- validating the bond/'* This view, however, overlooks a valuable right of the surety, who might not have signed except with the expectation that the risk would be divided with another, and furthermore, public ministerial officers are not given, in this country, the power of suspending the operation of statutes. There is, however, undoubted authority for the rule, that a surety may waive the requirement of statute for more than one surety and bind himself in an undertaking required by statute without complying with its terms. But such exception rests wholly upon the Surety's consent."" Hep. 889. Where the surety signed I'J^Toles vs. Adee, 84 N. Y. 223. with the understanding that he The bond in this ease was given for should not be called upon for pay- $2,000, and with one surety. The ment, except in the event of the Statute required a, bond for $1,000 death of the principal. and two sureties. The surety signed 1' 6 State vs. Dent, 121 Mo. 162; with knowledge that the require- 25 S. W. 924. ments of the Statute were not to be !■" Sharp vs. U. S., 4 Watts (Pa.) complied with, and consented that 21. the bond should be delivered with- See also Cook vs. Freudenthal, 80 out complying with the Statute. N, Y. 205, where the Statute as to Held, Andrews, J. ; " The evidence the form of the bond was not com- shows that the sheriff declined at plied with. first to take the undertaking in ques- t's State vs. Benton, --l.S N. H. 551. tion, doubting his authority to do 166 THE LAW OF SITEETYSHIP. §112. Same subject — Parol evidence competent in certain cases. Where the defense of the surety or guarantor is the failure of consideration, the circumstances which disclose the considera- tion and the fact of its non-performance, may be shown by parol, although in many cases the a^eement might be classed, without close discrimination, as a mere conditional contract. In England, and for the most part in this country, the Statute of Frauds is either modiiied by amendment or judicial con- struction, so that the consideration of a suretyship contract need not now be expressed in writing ^^^ and the ordinary rules of construction, as applied to written instruments, do not make the consideration a condition of a contract, but rather one of the constituent elements, and if omitted from the writing it may be supplied by parol, for the purpose of disclosing the full agree- ment of the parties, but not to modify or impose, conditions upon that agreement. Language reciting the consideration is not contractual. . A consideration is not necessarily a part of the promise of either party, but is the inducement of the promise.^^^ Thus a surety upon a note is induced to make a contract by the promise of the creditor to secure his release upon another note for which he is surety. Such promise by the creditor is not a condition and need not be expressed in writing ; it is the consideration of the contract and may be shown by parol.^*^ so. He did not take it in his official iso Ante Sec. 26, 27. authority. He simply, as the trans- isi Where there is a promise ex- action is proved, consented ^.t the pressed in the written contract to solicitation of A, to act as the inter- pay the consideration, or perform mediary to ascertain whether the some duty constituting the consid- plaintifT's attorney would accept the eration, the language reciting the undertaking, and discharge him from consideration becomes contractual arrest. When the plaintiff's attor- and cannot be modified by parol, ney consented to the proposition and Stewart vs. Chicago Ry. Co., 141 accepted the undertaking, it became Tnd. 5.5; 40 N. E. 67. operative and binding, not as a stat- 18= Campbell vs. Gates, 17 Ind. utory obligation, but as a common 126. law agreement between the parties, See also Port vs. Robbins, 35 la. for the breach of which an action 208. would lie as upon any other nssump- sit." SUEETYSHIP DEFENSES. 16T Where the inducement to the suretyship was that the cred- itor would dismiss a proceeding in banlcruptcy against the prin- cipal, and such proceeding was not dismissed, it was held to be a failure of consideration.'^^^ A general promise of forbearan.ce to sue the principal may be shown by parol to constitute the " condition " or terms under which the surety signed, and a failure to ^comply with these ■ terms, will be ground of his discharge.^** Parol proof will be received in most jurisdictions in this country, for the purpose of establishing the particular kind of suretyship contract made upon negotiable instruments. An accommodation indorsement in blank, may be shown to be the contract of an indorser, as distinguished from a surety or guarantor, and the fact that this results in a liability con- ditioned upon demand and notice, is held not to be a variation of a writing by parol, although such evidence establishes con- ditions not appearing in the vtritten contract, but merely the completion of a ^vriting expressed in blank, by making definite and certain what was before indefinite and ambiguous ; and for the same reasons, the creditor may show by parol, that the promisor signed as surety, and therefore not entitled to the privileges of notioe.^^^ Parol evidence will also be received to show that one of sev- 183 Paton vs. Stewart, 78 111. 481. the ordinary contract of the Indors- 184 Wallace vs. Hudson, 37 Tex. er, has been held to restrict, in that 4,56. State, parol evidence from being re- 185 Rey vs. Simpson, 22 How. 341 ; ceived to establish any other con- Good vs. Martin, 95 U. S. 90 ; Green- tract. Spencer vs. Allertou, 60 ough vs. Smead, 3 0. S. 416; Sey- Conn. 410; 22 Atl. 778. mour vs. Mickey, 15 0. S. 515; Ful- A similar Statute in Pennsylva- lerton vs. Hill, 48 Kan. 558 ; 29 Pae. nia, leaves the promisor conclusive- 583; Browning et al. vs. Merritt et ly established as a, second Indorser. al., 61 Ind. 425; Kealing vs. Van- while in New York the use of parol sickle, 74 Ind. 529 ; Cole vs. Smith, evidence is limited to proof, which 29 La. Ann. 551. shifts the contract from that of sec- In Connecticut a statute providing ond Indorser to first Indorser. that a blank indorsement imports Ante Sec. 10. 168 THE LAW OF SURETYSHIP. eral obligors is a surety or guarantor, although he appears prim'a facie as maker.^^* §113. Release of promisor by the creditor. While a promisor oan not show by parol that the creditor agreed that the liability would bei enforced only upon the hap- pening of a certain contingency ^" or which is the same thing, that the surety or guarantor would be released if certain events took placei, yet, it is competent to show by parol or otherwise, that subsequent to tlie making of the suretyship contract, the creditor, either by his words or by his conduct, exonerated the promisor, although the written contract is not surrendered or cancelled. Thus where the creditor tells the promisor that the debt is paid when it is not> or tells him that he will look to tlie j)rincipal alone and will not call upon the promisor in any event ; this rests upon the ground that a party may at any time waive the benefits of a contract, and be boimd by the waiver, and also upon the further reason that a creditor will be estopped from enforcing the suretyship contract, if he has once declared to the promisor that such contract is at an end, since the prom- isor, in reliance upon the declaration, might at once surrender securities held as indemnity or omit such further oversight of the debtor's affairs as would be necessary to his protection, if the suretyship was to subsist. It may be doubted whether it is equitable that a promisor should be discharged in toto merely because he has been exposed ISO Hubbard vs. Gurney, 64 N. Y. The fact that the obligation is 457 ; Davies vs. Barrington, 30 N. under seal does not appear to have H. 517 ; Mechanics Bank vs. Wright, affected the decision of the question 53 Mo. 153 ; American Invest. Co. vs. as to whether parol proof will be Marquam, 62 Fed. Rep. 960; Otis received to shift the position of one vs. Von Storch, 15 R. I. 41; 23 Atl. who is apparently maker to that of 39; First Nat'l Bank vs. Gaines, 87 promisor in suretyship. Rogers vs. Ky. 597 ; 9 S. W. 396 ; O'Howell vs. School Trustees, 46 111. 428 ; Fowler Kirk, 41 Mo. App. 523. vs. Alexander, 1 Heisk. (Tenn.) 425; Contra — Shriver vs. Lovejoy, 32 Cole vs. Fox, 83 N. C. 463 ; Metzner Cal. 574; Stroop vs. McKenzie, 38 vs. Baldwin. 11 Minn. 150. Trx. 132: Coots vs. Farnsworth, 61 i87 Ante Sec. 111. JL'.:h. 497; 28 N. W. 534. SUEETYSHlP DEFENSES. 169 -to a risk, without a showing that he has been damaged, but such appears to be the holding of some courts of high authority.'*' Other cases, however, are based upon the fact that the prom- isor has changed his position, either by releasing securities held for his indemnity, or has been deprived of opportunities for protecting himself. Such views can be fully justified in prin- ciple.^'^ A very learned judge has said : " We consider it well settled by numerous authorities, that when a creditor who knows that one debtor is a surety, gives him notice that the debt is paid bj the principal, and such debtor, in consequence, changes his situa- tion, as by surrendering security, or forbearing to obtain secur- ity when he might, or otherwise suffers loss by it, he is dis^ -charged. And althoiigh the debt has not been paid, and such notice was given by mistake, and without any fraudulent design, it is a mistake made at his own peril, and he shall ratiier bear the loss, than throw it upon on© who has been misled by it." *°* A mere expression of opinion that the principal will pay and that the surety will probably not be called upon, wall not re- lease the surety. '^"^ 188 Harris vs. Brooks, 21 Pick. 180 Bank vs. Haskell, 51 N. H. 195. The basis of the holding in 116; Brooking vs. Bank, 83 Ky. 431 ; this case was a verbal statement by West vs. Brison, 99 Mo. 684; 13 S. the creditor to the surety, that he W. 95; Thornburgh vs. Madren, 33 would look to the principal for pay- la. 380; Auehampaugh vs. Schmidt, ment, and that the surety need not 80 la. 186 ; 45 N. W. 567 ; Baker vs. trouble himself about it. This was Briggs, 8 Pick. 123. considered as an exoneration of the loo Shaw. C. J., in Carpenter vs. surety, without regard to any ques- King, 9 Met. 511. tion of injury to him. i^i Howe Maeh. Co. vs. Farring- See also Whitaker vs. Kirby, 54 ton, 82 N. Y. 121; Brubaker vs. Oke- •Ga. 277. It seems, however, that son, 36 Pa. 519, Strong, J.: "It this case is based largely, if not al- never yet has been held, that a together, on the language of the declaration of the creditor that the code, providing that a surety may principal debtor was good enough, be discharged by any act of the cred- that the surety was in no danger, itor which " exposes him to greater and that the debt would be collected liability or increases his risk." from the principal, without more Contra — Michigan State Ins. Co. was sufficient to estop the creditor vs. Soule, 51 Mich. 312; 16 N. W. from proceeding against the surety. -662. Such declarations are exceedinplv 170 THE LAW OF SUEETYSHIP. §114. Release of a co-promisor by the creditor. The relation of co-sureties or co-guarantors to each other, imposes a limitation upon the contract of the creditor, founded upon the equities which each promisor has to require contribu- tion from his co-obligors in suretyship. One of the inherent equities growing out of the suretyship relation, is the application of the maxim " Equality is equity," "^ whereby several persons being bound for the same thing, may, without any express contract covering their riglits in this respect, require that the burden of the undertaking be shared equally. Such is the basis of the doctrine of contribu- tion in suretyship. '^"^ It is manifest that equality caimot be insured if the creditor is permitted at vsdll to release one or more of the co-promisors from their share of the burden of the joint undertaliing. Different views have been held as to the extent to which relief should be granted to the remaining promisor, when his co-prom- isor has been discharged by the creditor. The most generally accepted rule is that the remaining prom- isor will be discharged, in equity, and generally also at law, to the extent that he has been deprived of his right of contribu- tion against his co-promisor, but that the act of the creditor cannot be turned to the further advantage of the remaining promisor by releasing him altogether; the result being merely, that he shall not b© called upon to bear additional burdens on account of the discharge of others.^"* common. They are often made to i8* Morgan vs. Smith, 70 N. Y. induce the surety to go into the con- 537 ; Lewis vs. Armstrong, 80 Ga. tract, and they are repeated after- 402; 7 S. E. 114; Thomason vs. wards, without any design to mis- Clark, 31 111. App. 404; Waggener vs. lead, or without being understood as Dyer, 11 Leigh fVa. ) 384; Jemison a waiver of any rights. They are vs. Governor, 47 Ala. 390; Rice vs. made ard received as expressions of Morton, 19 Mo. 263; Gordon vs. opinion. They never invite confi- Moore, 44 Ark. 349 ; Smith vs. State, dence, nor is confidence often re- 46 Md. 617; Robinson, J.. "It posed in them. Standing alone, they seems also to be well settled that the will not discharge the surety." release of one or more sureties with- 192 Braeton Lib. 1 Cap. 3, Sec. 20. out the assent of the co-sureties will 193 Post Chapter 10. operate at law to discharge the lat- SURETYSHIP DEFENSES. 171 This rule will be applied whether the discharge of the co- promisor is by the voluntary act of the creditor, or is the result of the operation of law; as for example, where the co-surety requested a creditor to bring an action against the principal, and was discharged by failure of the creditor to institute the action as requested. The remaining surety was held to be dis- charged as to the contributory share of the co-surety thus ro- Such discharge of one of several co-promisors by operation of law, will not release the remaining promisor, unless resulting from the fault or procurement of the creditor. A discharge of ter, because it is a cardinal principle of suretyship that the surety has the right to stand by the very terms of the contract, and the creditor will uoi be permitted to change or alter the contract without concurrence of all t'le parties to it. " In equity, however, the rule is dif- ferent, and the release of one or more sureties will not be construed to have this effect, unless it sub- jects the co-sureties to an increased risls or liability. " It is difficult to imagine on what principle it can be maintained m equity, that the mere release of one surety discharges the other sureties from liability. " As between themselves, the sure- ties are liable only for their propor- tion of the debt, and the right of contribution does not exist unless they have paid an amount exceeding this proportion. " If, then, the release of one surety discharges the others from the pay- ment of the proportion of the debt, which such surety ought to have contributed, and discharges them also from the proportion which he ought to bear in the loss arising from the insolvency of any of the other suretiof.. it is clear that such release can in no manner prejudice or subject the co-sureties to an in- creased risk." Ex parte Gifford, 6 Ves. 805; Hodgson vs. Hodgson, 2 Keen 704. The rule stated in the text rests upon the assumption that the release of one co-surety, deprives the remaining promisor of the right of contribution against him. But at least one Court of high repute is re- ported as holding that the remain- ing promisor may have contribution from the one who has been released by the creditor. Clapp vs. Rice, 15 Gray 557, Soar, J. : " It is very clear that co-sureties are liable to contribution among themselves; and that the discharge cf one of them from his principal obligation, if the others are not discharged, will not release him from the liability to con- tribute for their indemnity." 195 Klingensmith vs. Klingen- smith, 31 Pa. 4C0; Trustees vs. Southard, 31 111. App. 359; Gordon vs. Mooa-e, 44 Ark. 349, 358. But see Wright vs. Stockton, 5 Leigh (Va.) 153; Towns vs. Riddle, 2 Ala. 694. Holding that the fail- ure to bring suit when requested by one surety, discharges both sureties. 172 THE LAW OF SUEETYSIIIP. a co-surety in bankruptcy, leaves the remaining surety liable for the full amount.""' Again, the release by the creditor of a levy made upon the property of one of several sureties, is held to discharge the co- sureties to the extent of the contributory share of the surety whose property ^vas released.^"' The extension of time to one of several sureties, vs^ould seem to involve precisely the same question of a discharge of the co- surety, to the extent -of the contributory share of the surety whose obligation is extended, as it deprives the remaining sxirety of the privilege of having immediate contribution at maturity, if he pays the debt.^"* The release of one of several co-promisors, reserving all rights against the remaining promisors, is not within the oper- ation of the rule, since the right of contribution is still pre- served, inasmuch as the reservation in the contract of release 1S6 Sacramento Co. vs. Bird, 31 Cal. 66. See. 16, of the National Bank- ruptcy Act, 1898, provides that the liability of one who is a co-debtor with the Bankrupt, shall not be al- tered by the discharge of the Bank- rupt. i9'Dodd vs. Winn, 27 Mo. 501. The co-surety was discharged in this case to the extent of the pro-rata share of the surety whose property was released, and apparently with- out regard to the fact that the re- lease of the levy restored the judg- ment, so that the co-surety paying the debt, might have enforced con- tribution, inasmuch as an abandon- ment of a levy restores the judg- ment, which has been conditionally satisfied by the levy, leaving in force the liability as if no levy had been made. Green vs. Burke, 23 Wend. 490; Bole vs. Bogardis, 86 Pa. 37; McKeeby vs. Webster, 170 Pa. 624 ; 32 Atl. 1096. The rule that a. release of a levy upon property of the principal dis- charges the surety, furnishes a re- mote analogy for the application of the same rule where the levy is upon . the property of a co-surety, but tlie principles involved are not parallel. See also Lower vs. Buchanan Bank, 78 Mo. 67; Englisli vs. Sei- bert, 49 Mo. App. 563. Contra — Starry vs. Johnson, 32 Ind. 438 ; Chipman vs. Todd, 60 Me. 282; Alexander vs. Byrd, 85 Va. 690; 8 S. E. 577. But see People vs. Chisholm, 8 Cal. 29, holding that the release of a levy upon property of a surety, dis- charges the co-surety to the extent of the value of the property released from levy. 198 Ide vs. Churchill, 14 0. S. 372 ; Gosserand vs. Lacour, 8 La. Ann. 75. Contra Draper vs. Weld, 13 Grav 580. SUEETYSIIIP DEFENSES. 173 is considered as notice to the party released that his liability in contribution is to continue, and his acceptance of this arrange- ment, implies his assent to remain bound in contribution.'"" Some courts have maintained the view that the release of one co-surety, discharges the other altogether, on the ground that a surety has the right to stand ixpon the precise terms of his contract, and that the discharge of one places him in new relations, and is a variation of his contract.^"" Statutory provisions in some States have been enacted which enable the creditor to release one of several co-promisors, with- out discharging the remaining promisors, except as to the con- tributory share of the one released.^"' §115. Defense of the promisor based upon the failure of the creditor to sue the principal when requested. There is no justification in principle in favor of a defense to a promisor, at common law, based upon the failure of the cred- itor to sue the debtor upOn a liquidated claim, when requested by a surety or guarantor. The creditor is not held responsible for any delay or negli- gence in pursuing his remedies against the principal except where a duty of diligence in this respect is imposed upon him 199 Hood vs. Hayward, 124 N. Y. Collins vs. Prosser, 1 Barn. & Cr. 1 ; 26 N. E. 331 ; Glasscock vs. Ham- 682. ilton, 62 Tex. 143; Thompson vs. See also Smith vs. State, 46 Md. Lack, 3 C. B. R. 540; Kearsley vs. 617. Where the complete discharge Cole, 16 M. & W. 128; Price vs. of the remaining surety is conceded J3arker, 4 EI. & Bl. 760; McDonald to be the rule at law but not in vs. Whitfield, 27 Can. (S. C.) 94. equity, and the release in equity is 200 People vs. Buster, 11 Cal. 215; held to be pro tanto. Spencer vs. Houghton, 68 Cal. 82 ; To the same effect. State vs. Mat- 8 Pac. 670; Stockton vs. Stockton, son, 44 Mo. 305; Massey vs. Brown, 40 Ind. 225; Seligman vs. Gray, 66 4 S. C. 85. Mich. 341; 33 N. W. 510; Clark vs. 201 Alford vs. Baxter, 36 Vt. 158; Mallory, 185 111. 227 ; 56 N. E. 1099 ; State vs. Atherton, 40 Mo. 209 ; Price vs. Barker. 4 EI. & Bl. 670; Walsh vs. Miller. 51 0. S. 462; 38 N. E. 381. 174 THE LAW OF SUEETYSHIP. by his contract or by statute,""^ and no additional equity in favor of the promisor arises from the fact that a request is made of the creditor to do that which it is conceded he was not bound to do of his own accord. By the exercise of diligence, the promisor can have full pro- tection by paying the debt himself at maturity, and bringing his own action against the debtor, or. by bringing a proceeding in equity against the principal to compel him to pay the cred- itor,^°^ and he should not be permitted by a mere " request" to shift upon the creditor the burden of a greater degree of dili- gence than he himself is willing to exercise in his own behalf. Such is the holding of the great preponderance of authority in this country.^"* 202 Ante Sec. 95. 203 Moore vs. Topliff, 107 111. 241 ; Philadelphia & Reading Ey. vs. Lit- tle, 41 N. J. Eq. 519; 7 Atl. 356; Miller vs. Stout, 5 Del. Ch. 259; West vs. Chasten, 12 Fla. 315; Bish- op vs. Day, 13 Vt. 81; Woolridge vs. Norris, L. E., 6 Eq. Cases 410, Qiffard, V. C. (quoting Lord Redes- dale) : "A Court of Equity will also prevent injury in some cases by interposing before any actual in- jury has been suffered; by a bill which has been sometimes called a bill quai timet, in analogy to pro- ceedings at the common law, where in some eases a writ may be main- tained before any molestation, dis- tress, or impleading. Thus, a sure- ty may file a bill to compel the debtor on a bond in which he has joined to pay the debt when due, whether the surety has been actual- ly sued for it or not." See also Washington vs. Tait, 3 Humph. (Tenn.) 543; Richards vs. Osceola Bank, 79 la. 707; 45 N. W. 294; Womaek vs. Paxton, 84 Va. 9; 5 S. R. 550 : Ardesoo Oil Co. vs. No. Amer. Oil Co., 66 Pa. 375. Sharsicood. J.: " Tt is ivell set- tled that as soon as a surety's obli- gation to pay becomes absolute he is entitled in equity to require the principal debtor to exonerate him, and he may at once file a bill to compel an exoneration, although the creditor has not demanded payment from him." 204 Bellows vs. Lovell, 5 Pick. 307; Dane vs. Cordnan, 24 Cal. 157; Bull vs. Allen, 19 Conn. 101; Ingels vs. Sutliff, 36 Kan. 444; 13 Pac. 828; Eaton vs. Waife, 66 Me. 221; Gray vs. Farmers Bank, 81 Md. 631; 32 Atl. 518; Inkster vs. First Bank, 30 Mich. 143 ; Smith vs. Frey- ler, 4 Mont. 489; 1 Pac. 214; Quil- len vs. Quigley, 14 Nav. 215; Harris vs. Newell, 42 Wis. 687; Wilds vs. Attix, 4 Del. Ch. 253; Louisiana Bank vs. Ledoux, 3 La. Ann. 674; Thompson vs. Bowne, 39 N. J. Law 2; First Bank vs. Homesly, 99 N. C. 531; 6 S. E. 797; Snow vs. Hor- gan, 18 R. I. 289; 27 Atl. 338; Ben- edict vs. Olson, 37 Minn. 431; 35 N. W. 10; Morrison vs. Citizens Nat'l Bank, 65 N. H. 253; 20 Atl. 300. Carpenter, J. : " As between creditor and surety, it is the surety's business to see that the principal ■SUitETYSHIP DEFENSES. 175 Statutes in a number of States provide for the giving of notice by the promisor to the creditor to sue the principal, and for the discharge of the promisor if the notice is not complied with. The general trend of these statutes is the same, and they usu- ally provide for a notice in writing, and where such statutory rule is in force, the creditor cannot omit to bring his action without losing his right against the promisor, even though the surety or guarantor suffers no loss on account of the failure of the creditor to comply with the notice. ^°° amount thereof, the creditor, or the assignee of such instrument, so fail- pays. The creditor's chief purpose in requiring a surety is to avoid the necessity of resorting to legal remedies against the principal, to ■escape the vexation and expense of litigation, and cast the burden upon jiuother. The surety's contract is, that he will himself pay the note when it falls due, and not that he will pay it in case the payee or holder cannot by due diligence en- force payment by the principal. If he performs his contract, the cred- itor has neither cause nor opportu- nity to institute legal proceedings." See Contra Cases cited Post Sec. 116. 205 The Statute in Ohio is as fol- lows: Sec. 5833. — " A person bound as surety in a written instrument for the payment of money, or other val- uable thing, may, if a right of action accrue thereon, require his creditor, by notice in writing, to commence an action on such instrument forth- with, against the principal debtor; and unless the creditor commence such action within a reasonable time thereafter, and proceed with due ■diligence, in the ordinary course of law, to recover judgment against the principal debtor for the money or other valuable thing due thereby, iind to make, by execution, the ing to comply with the requisition of such surety, shall thereby forfeit the right which he would otherwise have to demand and receive of such surety the amount due thereon." It is held that no particular form of words is required under this Statute, and that a, notice which substantially complies with the pro- visions of the Act is sufficient. Clark vs. Osborn, 41 0. S. 28; Iliff vs. Weymouth, 40 0. S. 101. See also for construction of simi- lar Statutes in other States. Pick- ens vs. Yarborough, 26 Ala. 417; Darby vs. Berney Nat. Bank, 97 Ala. 643; 11 South. 881; Thompson vs. Robinson, 34 Ark. 44; Bailey vs. New, 29 Ga. 214; Fish vs. Glover, 154 111. 86; Chrisman vs. Tuttle, 59 Ind. 155; Barnes vs. Mowry, 129 Ind. 568; 28 N. E. 535; Shenandoah Bank vs. Ayres, 87 la. 526; 54 N. W. 367 ; Keirn vs. Andrews, 59 Miss. 39; Petty vs. Dooglass, 76 Mo. 70; First Bank vs. Homesley, 99 N. C. 531; 6 S. E. 797; Thompson vs. Watson, 10 Yerg. (Tenn.) 362; Har- rison vs. Price, 25 Gratt. 553;. Kit- tridge vs. Stegmier, 11 Wash. 3; 39 Pac. 242; Gillilan vs. Ludington, 6 W. Va. 128. It is held that the provisions of 176 THE LAW OF SUEETYSHIP. There sue many holdings to the effect that the promisor in- suretyship may maintain a bill in equity to compel the creditor to proceed against the principal/"* requiring before such rem- edy can be enforced, that the promisor first indemnify the cred- itor against the expense of the proceedings. There is a marked difference, however, in the attitude of a promisor who seeks by this means to accelerate the diligence of the creditor, and the case where he merely relies upon a re- quest made of the creditor, since in the latter he puts upon the creditor, tbe burden of all the risk, provided his action is fruit- less, and sets himself up as the Chancellor to determine the necessity for the application of such a remedy. It must be conceded, however, that the position taken in some cases, gi'ant- ing jurisdiction in equity to a promisor to accelerate the dili- gence of the creditor, is not altogether consistent with the- denial, by the same court, of a defense in equity, where the promisor suffers loss by the indifference of the creditor in not pursuing the debtor when requested. §116. Same subject — The doctrine of Pain vs. Packard. It has been held in the minority of the States that a moral and equitable duty rests upon the creditor to obtain payment if possible from the debtor, and not from one who is a mere surety, the statute apply, although the ered- latter to exonerate the surety from itor does not reside in the same ju- losses which may otherwise be sus- risdiction as the principal. Meri- tained by him by the delays and den Silver Plate Co. vs. Flory, 44 O. forbearance of the creditor in enfore- S. 430; 7 N. E. 753. In this case ing his debt." Thompson vs. Tay- the creditor was domiciled in Con- lor, 72 N. Y. 32; Whitridge vs. necticut and the surety and princi- Durkee, 2 Md. Ch. 442; Irick vs. pal in Ohio. , Black, 17 N. J. Eq. 189; Reusch vs. 206 In re Babcook, 3 Story 390, Keenan, 42 La. Ann. 419; 7 South. Story, J. : " There is no doubt, that 589. it surety for a, debt may in many Such remedy in equity is held ta oases be entitled to relief by requir- be merged in the Statute providing ing the creditor to proceed against for a requirement on the part of the the principal This is creditor to sue the principal upon the common course, where the surety notice. Barnes vs. Sammons, 128' seeks, by a bill against the cred- Ind. 596; 27 N. E. 747. itor and the principal, to compel the SUBETYKiriP DEFENSES. 17T and if the creditor omits to do this, when notified by the surety that a longer indulgence will expose him to hazard, and he actually suffers loss by the neglect of the creditor, he ought to be discharged. The ease of Pain vs. Packard ^"^ decided in New York in 1816, is considered the parent ease in the line of authorities maintaining this doctrine. This case has never been overruled by the New York courts, though it has frequently been criticised by the later deci- sions,'"'* and has been modified by the restrictions placed upon its application to persons not in suretyship relations at the in- ception of the contract, but whose connection with the transac- tion is subsequent to the execution of the main contract, and who, though in the situation of a surety, such as an indorser in the chain of title, are not accommodation, parties.^"" Also the same modification is applied where the transactioa is a sale of a chose in action, \vith a guaranty by the vendor ; ^"' 2D7 13 Johns. 174. The doctrine of Pain vs. Packard is adopted in the following cases: King vs. Baldvpin, 17 Johns. 384; Manchester Co. vs. Sweeting, 10 .Wend. 163 ; Eemsen vs. Beekman, 25 N. Y. 552 ; Black River Bank vs. Page, 44 N. Y. 453; Col- grove vs. Tallman, 67 N. Y. 95 Martin vs. Skehan, 2 Col . 614 Thompson vs. Robinson, 34 Ark. 44 Thompson vs. Watson, 10 Yerg. (Tenn.) 362. In the three cases last cited, the holding is that the Common Law Rule is in force, and that a verbal notice to the creditor is sufiBcient, notwithstanding the Statute provid- ing for the written notice. Dillon vs. Russell, 5 Neb. 484. In this case the condition is imposed that the promisor must accompany his request with an offer to indem- nify the creditor against the expense cf his action. A request to be effective under the doctrine of Pain vs. Packard must not be made before maturity. Fid- ler vs. Hershey, 90 Pa. 363. It is held that the rule cannot be- enlarged so as to require the cred- itor to procee'd against the debtor in any particular way, such as to fore- close a lien or to issue attachment.. Haden vs. Brown, 18 Ala. 641; Rug- gles vs. Holden, 3 Wend. 216; First . Bank vs. Wood, 71 N. Y. 405. 208 Warner vs. Beardsley, 8 Wend. 198 ; Herrick vs. Borst, 4 Hill 650.. 209 Trimble vs. Thorne, 16 Johns. 152. 210 Wells vs. Mann, 45 N. Y. 327. " It is the right of » surety to pay the debt and prosecute the principal,, and one who for value transfers a debt or security, and thereupon be- comes guarantor or indorser, can protect himself against the conse- quence of delay in enforcing the principal oblifration and cannot. \vc think, by notice impose upon the 178 THE LAW OF SUKJiTYSillP. thus leaving the rule in force only as to cases in which the promisor contracts solely for the benefit and accommodation of the principal debtor ; from which it appears .that the doctrine of Pain vs. Packard fills a smaller field, even in New York, than is sometimes claimed for it. §117. The principal's right of set-off or counterclaim against the creditor as a defense to the promisor. The legal right of set-off did not exist at common law, and the statutory aiithority upon which it rests is limited to cases where crf)ss-demands exist between the parties ; and if both demands jii-e complete and mature and capable of liquidation, then in the furtherance of natural equity, legislative enactments permit one to be set off against the other when suit is brought, with a judgment for the balance against the one who owes the larger amount ; but statutory set-off must be between the same parties and in their own right. Again a counterclaim or recoupment of causes of action aris- ing out of the same transaction upon which the plaintiff's claim is based, will be allowed to the defendant in reduction of his liability when sued, but just as in the case of set-off, this cross- demand must be in the defendant's own right. The statutes creating these very useful and practical rules for ■doing justice, and the prevention of multiplicity of actions, gen- €rally do not in terms include persons standing in the suretyship relation, where the cross-demand is between the principal and creditor. ^'^^ But it is very clear, as a proposition of equity, that if the creditor is indebted to the principal, either upon a demand < reditor av holder tlie duty of active tied to the benefit of the rule of Pain diligence at the risk of discharging vs. Packard. the surety by omitting it." New- 211 gefton vs. Hargett, 113 Ind. tomb vs. Hale, 90 N. Y. 326. 592; 15 N. E. 513. The Statute in But see Colgrove vs. Tallman, 67 Indiana gives to the S.urety sued N. Y. 95, where one not originally alone the benefit of set-off in the bound as suretj', but who was placed right of the principal. in the situation of a surety by sub- See also Edmunds vs. Harper, 31 sequent events, was considered enti- Grat. (Va. ) 637. construing similar Statute in Virginia. aUKBTYSIIlr DEFENSES. 179 arising out of tlie samo ti'ansaction in which another is surety, or upon a separate cause of action, that the right of the prin- cipal to have counterclaim or set-o£E should inure to the prom- isor in suretyship when sued by the creditor. The creditor should not be permitted to invoke a multiplicity of actions in adjusting his accounts with the principal, if by means of set-off or counterclaim, and without injustice to any of the parties involved, the same result could be reached with one action. If the creditor is insolvent, an additional and stronger equity exists in favor of preventing him from enforcing his demand against the surety or guarantor, except upon the condition of first deducting his debt to the principal. To permit a set-off or counterclaim in favor of the promisor in suretyship, in the right of the principal, involves, however, a practical difficulty, if the principal's claim against the cred- itor exceeds that of the promisor's liability. The latter cannot have a judgment for the balance in his favor, neither could the right of action for the balance be pre- served to the principal, without making divisible that which in its nature is entire, and exposing the creditor to a multiplicity of actions, if the claim of the principal against him should be divided. In those cases, therefore, in which the creditor does not elect to make the principal and promisor both parties to his suit, and where the procedure does not permit the promisor when sued alone, to bring in the principal as a party, on motion, the doctrine of equitable set-off or equitable counterclaim in favor of the promisor, and in the right of the principal, cannot apply; at least not in those cases where the principal's claim against the creditor, exceeds that of the creditor against the promisor.^^^ -12 Gillespie vs. Torrance, 25 N. fendant was an accommodation in- Y. 306. In this case there was a dorser. The Court said : " The hreach of warranty, giving rise to a principal has a right of election claim for damages against the ered- whether the damages shall be claimed itor, and in favgr of the principal. by way of recoupment in the suit upon a contract for which the de- on the note, oir reserved for a cross- 0.80 THE LAW OF SUKKTYSJUP. For special equitable reasons, such as the insolvency of th« creditor, it has been held that the cross-demands in favor of the principal may be adjudicated without having the principal before the court ^^' The right to malce the principal and promisor both parties to his action, whether the liability is joint or several, or to sue them separately at his option, is accorded to the creditor by statute in most of the States ; but these statutes do not generally furnish authority to the promisor to require the creditor to exercise this option. ^^^ At common law a joint action only could be brought to en- force a joint liability, ^^° so that the equitable rights of the prom- isor to have set-off or counterclaim in the right of the principal, can always be worked out where the liability is joint, and the common law requirement of joint actions has not been modified by statute, since the principal in such cases is necessarily a party. action. The defendant (Indorser) cannot make this election for him. If the defendant has a right to set up the counterclaim, and have it allowed, in the action, it must bar any future action by the principal for the breach of warranty ; and as no balance could be found in de- fendant's favor, he might thus bar a large claim in canceling a small one. If the right exists in this case, it would equally exist if the note was but $100 instead of $1,800. Supposing the other notes given for the timber to have been indorsed by different persons, for the accom- ■ modation of the principal and all to remain unpaid, each of the indorsers would have the same right as the defendant. If they were to set up the same defense, how would the conflicting claims be reconciled?" ■Lasher vs. Williamson, 55 N. Y. 619; Newton vs. Lee, 139 N. Y. 332; 34 N. E. 905; Osborn? vs. Bryce, 23 Fed. Rep. 171; Beard vs. Union Co., 71 .Ua. 60; B. & O. E. R. Co. vs. Bitner, 1-5 W. Va. 455; Thalheimer vs. Crow, 13 Col. 397; 22 Pae. 779. Contra — ^Seroggin vs. Holland, 16 Mo. 419; Aultman vs. Hefner, 67 Tex. 54 ; 2 S. W. 861 ; Bechervaise vs. Lewis, L. R., 7 C. P. 372; Murphy vs. Glass, L. R., 2 P. C. 408; Alcoy Ry. vs. Greenhill, 41 London Solic- itors Jour. 330. 2i3jarratt vs. Martin, 70 N. C. 459; Scholze vs. Steiner, 100 Ala. 148; 14 South. 552. 2" Wilkins vs. Banlc, 31 0. S. 565. If Statutory authority does not ex- ist, the principal and promisor can- not be jointly sued by the creditor, except where the liability is joint. Abbott vs. Brown, 131 111. 108; 22 N. E. 813; Graham vs. Eingo, 67 Mo. 324 ; Tyler vs. Trustees, 14 Ore. 485; 13 Pac. 329; Virden vs. Ells- worth, 15 Ind. 144; Cross vs. Bal^ lard, 46 Vt. 415. 215 Kautzman v% Weirieh, 26 0. S. 332. SUliETYSIlIF DEFENSES. 161 Where all the parties are before the court, the right of ■equitable set-off or counterclaim in favor of the promisor, upon cross-demands between principal and creditor, is fully estab- lished in this countr)'.'"' ^118. Defenses based upon the right of the promisor to control the application of collateral. If the creditor holds collateral security belonging to the prin- cipal, and his contract with the principal is such that he is at liberty to apply the proceeds to any one of several debts owing by the principal, the surety or guarantor on one of these debts has no right to control the application so as to cause it to be iipplied in reduction of the particular debt for which he is liable. ^'^ Unless restricted by a contract to the contrary, the creditor 216 Mahurin vs. Pearson & Bel- lows, 8 N. H. 539, Parker, J.. " There are several considerations which show the propriety of allow- ing the set-off in this case. If the debt from the plaintiff to Pearson, which was offered in set-off, was contracted after that now in suit, it very probably might have been re- garded by the parties as in effect a, jiayment thus far. It is at least but equitable that it should so oper- ate, whether contracted before or after. The rule in equity is, that if a t-reditor have security, the surety, fln payment by him, is entitled to be substituted, and to have the ben- efit of that security. " If, instead of having security, the creditor owes the principal part of the amount, and the principal is willing to put in a set-off. it is equally reasonable that the surety should have the benefit of the credit -which the creditor has obtained of the principal. And, moreover, it will tend to prevent multiplicity of actions; for, should the plaintiff col- lect his debt of Bellows, the latter must have an action against Pear- son to recover the amount, and Pear- son will have a right of action on the claim now offered in set-off." Livingston vs. Marshall, 82 Ga. 281; 11 S. E. 542; Waterman vs. Clark, 76 111. 428; Himrod vs. Baugh, 85 , 111. 435; Ronehel vs. Lofquist, 46 111. App. 442; Reeves vs. Chambers, 67 la. 81 ; 24 N. W. 602 ; Spencer vst. Almoney, 56 Md. 551 ; Concord vs. Pillsbury, 33 N. H. 310; Andrews vs. Varrell, 46 N. H. 17; St. Paul vs. Leek, 57 Minn. 87; 58 N, W. 826; Wagner vs. Stocking, 22 O. S. 297 ; Hollister vs. Davis, 54 Pa. 508 ; Wartmau vs. Yost, 22 Grat. 595; MeHardy vs. Wadsworth, 8 Mich. 349; Peirce vs. Bent, 69 Me. 381. 2" Fall River National Bank vs. Slade, 153 Mass. 415; 26 N. E. 843. 182 THE LAW or SURETYSHIP. may apply the proceeds of collateral to the payment of such debts as are unsecured.^" The promisor may avail himself of all the rights of the prin- cipal as to the application of collaterals, and if, at the time of the creation of the debt or the delivery of the collateral, the principal directs that they are to be held for the special debt for which another is surety or guarantor, the latter may be dis- charged to the amount of the value of such securities, if they are otherwise applied. ^^° But such right to control the application of the security, cannot be exercised after the transaction has been completed, and the security delivered. The creditor, under these circum- stances, may exercise his option to apply the proceeds of the collateral as his own interests may require.^^" If a creditor has both a personal remedy against a promisor in suretyship, and also a fund or security in his hands to which he might resort, and the latter is a fund or security not avail- able to the promisor by way of subrogation, a court of equity 218 Lester vs. Houston, 101 N. C. case, the creditor is regarded as a 605; 8 S. B. 366 J North vs. La trustee of the security deposited Flesh, 73 Wis. 520; 41 N. W. 633; with him, for the benefit of all par- Hanson vs. Manley, 72 la. 48; 33 ties known to him to be interested N. W. 357. in it, and is bound to administer the 2is> Mellendy vs. Austin, 69 111. trust created by the deposit, unless 15; Hidden vs. Bishop, 5 R. I. 29. discharged by the surety, in his re- This case holds that the promisor lief, as well as in accordance with ha.s the same right to his discharge his own interests and those of the if the collateral is diverted, whether principal. It follows, that any ap- he had knowledge or not at the time plication -of the security by the cred- he made his contract, of the terms iter to other purposes than tliose under which the creditor holds the marked out by the terms of the dc- collateral. The Court said : " The posit, or any decrease of its value by equity which entitles a surety to the means of his negligence or mistake, benefit of all securities of the prin- discharges the surety from liability eipal deposited with the creditor to to him in that character, to the ex- assure payment of the debt, is whol- tent of the misapplication or de- ly independent of any contract be- crease of value thus occasioned." tween the surety and the creditor, Baugher vs. Duphorn, Gill (Md.) and indeed of any knowledge on the 314 ; Pearl vs. Deacon, 24 Beav. 186. part of the surety of the deposit of 2-0 Field vs. Holland, 6 Cranch 8; the securities. ... In such Nat'l Bank vs. Bigler- 83 N. Y. 64. SUEETYSHIP DEFENSES. 183 will require the creditor to first apply such collateral, before enforcing the personal remedy.^^"^ But such relief is based upon special equities, and is not ex- tended where the creditor merely exercises his choice of two remedies for the collection of the debt, leaving the securities in his hands immediately available to the promisor by subrogation, in case the creditor chooses to enforce his rights against him.^''^ The natural equity involved in the proposition that a creditor owes a moral duty to save the accommodating party from loss where it can be done without injury to himself, has found ex- pression in the statutes which provide that in the case of a joint or several judgment, against a principal and surety in the same action, execution shall first issue against the principal, and no execution shall be laid upon the property of the surety, till the property of the principal has been exhausted. The statutes in this respect must be complied with by the issue of an execution against the principal, even though such execution is fruitless by reason of the insolvency of the prin- cipal."' 2"! Hayes vs. Ward, 4 Johns. Ch. 123. In this case, the creditor, as additional security, took from the principal a. mortgage, which was void because of usury, and the sure- ty brings this action to enjoin the creditor from action against him un- til he had first proceeded upon his mortgage. The injunction was al- lowed, upon the theory that the mortgage, because of the usury, would not be available to the surety, and that the creditor should not have the right to require payment of the surety, leaving the latter to pro- ceed against the fund in the cred- itor's hands, made valueless by the creditor's own act. The reasoning of this case is not convincing, for whether the mort- gage in the hands of the creditor is valid or not, the surety is not the loser; if the mortgage is valid, the title of the principal would be re- stored on payment of the debt by the surety, leaving to the surety the option to proceed against the prop- erty by direct action for indemmty. or by subrogation to foreelosft in the right of the creditor. If the mort- gage is invalid, his right to subject the property in his action for in- demnity is not impaired, and the taint of usury in the transaction does not affect him. 222 Davis vs. Patrick, 57 Fed. Rep. 909; Bingham vs. Mears, 4 No. Da. 437; 61 N. W. 808; Thorn vs. Pink- ham, 84 Me. 101; 24 Atl. 718,- Allen vs. Woodard, 125 Mass. 400; Pcmi vs. Ingles, 82 Va. 65; Aultman vs. Smith, 52 Mo. App. 351. 223 Johnson vs. Harris, 69 In.E TNSTEUMENTS. 193 is based upon the possible injury resulting to the indorser in depriving him of the privilege of immediate recourse upon the maker. Such injury does not result, however, unless the extension is binding upon the holder ; and to have this effect the contract for extension must be supported by a valid consideration,^^ and for a definite time/^ An indorser is discharged also if an indorser prior to hinr is released by the holder. Such release by the holder does not prevent the indorser from having recourse upon the prior in- dorser, but if such prior indorser should respond to this lia- bility, he could in turn recover from the holder under his con- tract of release. The holder therefore will not be permitted to maintain an action which merely results in a multiplicity of use- less actions which avail him nothing.^^ These defenses, in respect to the suretyship element of the indorser's contract, will not be available except as to the imme- diate parties or such remote parties as have notice^ The qual- ity of negotiability cuts out all equities not appearing on the face of the paper, and prevents the operation of such defenses against a bona fide holder for value. If a contract of extension is written upon the note itself, and the holder who grants this extension subsequently transfers the paper, his indorsee is subject to the defenses growing out of the extension which the prior indorser would have had against the original holder. But if the contract of extension does not appear upon the note, and the indorsee has no notice of it, then,, as to him, there is no extension, and of course, as to him, the' prior indorser is not discharged. If the defense of the indorser is some fraudulent act on the- 11 McLemore vs. Powell, 12 Wheat. Wis. 560; 67 N. W. 1128. A release 554; Jennings vs. Chase, 10 Allen of a prior indorser resulting frou 626. the negligence of the holder in not 12 Edwards vs. Bedford Chair Co., giving him notice will not discharge 41 0. S. 17. the intervening indorser, since the isNewcomb vs. Raynor, 21 Wend. latter may himself give the proper 108; Plankinton vs. Gorman, 93 notice to charge the prior party. 194 THE .LAW 0¥ SURETYSHIP. part of the holder, a subsequent bona fide transferee of the pap^r ■would not be prejudiced by such fraud.^' ^ , A transferee after maturity cannot, however, become a bona fide holder, and as to such holder, the indorser may interpose all the defenses which he might have maintained against his immediate indorsee. Thus an indorsee agreed with his indorser that he would not dispose of the note to a third person. A purchaser after ma- turity was held to be subject to this agreement.^' §123. Regular indorser not entitled to special equities of ac- commodation promisors. While the regular indorser may properly be classified as a promisor in suretyship whose equities in many respects are analogous to those of a surety or guarantor, yet in some im- portant particulars the analogy does not hold good. The several co-indorsers for instance, do not owe each other the duty of ratable contribution, and if the principal maker fails to pay, the earliest or first indorser must bear the entire burden.^ The regular indorser is not discharged by the relinquishment of securities in the hands of the holder. Tha suretyship equity ■which discharges a promisor under such circumstances does not extend to one whose suretyship is merely collateral to another purpose of the promisor. The payment by a regular indorser is the payment of his own debt Usually he receives an adequate consideration for the transfer of the paper in the first instance, and the indorsee owes him no duty of protectiOTi 1* An endorsement after maturity Ann. 223 ; Sagory vs. Metropolitan extending the time of payment does Bank. 42 La. Ann. 627 ; 7 South, not invest the paper with its orig- 033. inal quality of negotiability. It is McPherson vs. Weston, 85 Cal. Btill remains a past due obligation,. 90; 24 Pac. 733. and subsequent holders take it sub- i" McGurk vs. Huggett. 56 Mich, ject to all the equities of the prior 1S7; 22 N. W. 308. parties, Mareal vs. Melliet, 18 La. NEGOTIABLE DSTSTKUMEIfTS. 195 other than that which is iBvolved in the terras of the contract itself, or which is deduced by necessary implication from it.^' Also a surety or guarantor may accelerate the diligence of the creditor by an action in equity requiring him to sue the princj.pal, or by an action in equity against the principal, requiring him to pay the creditor,^* But no such privilege is afforded the regular indorser. §124. Special indorsements. An indorser cannot evade the liability which the Law Mer- chant attaches to his position except he adopts such a form of expression in his contract as clearly indicates an intention to enter into a special undertaking. If indorsements are made, however, which destroy the nego- tiability of the bill or note, the technical position of the in- dorser is at once changed, and he becomes a mere assignor governed by the rules of assignment as related to the sale of personal property. An indorser who declines to assume the responsibility to indemnify the holder against the dishonor of the bill or note, such as an endorsement without recourse, does not thereby de- stroy negotiability,^" nor in any way affect the contract of the maker or other parties. Although an indorser without recourse is not pliable for the default or insolvency of any of the prior parties, yet he does not divest himself of his character as vendor, and he remains I'Hurd vs. Little, 12 Mass. 503; is Ante See. 115. Pitts vs. Congdon, 2 N. Y. 352; i» Russell vs. Ball, 2 Johns. 50; First Nat. Bank vs. Crabtree, 86 la. Borden vs. Clark, 26 Mich. 410. 731- 52 N. W. 559. ^^ indorsement extending the But see Union Bank vs. Cooley, time of the note does not destroy 27 La. Ann. 202. negotiability, if the extension is for It seems, however, to have been a definite time. Anniston Loan & held that the release of a levy on Trust Co. vs. Stickney, 108 Ala. property of the principal maker will 146; 19 South. 63. discharge the indorser. Bank vs. An extension to an indefinite time Fordyce, 9 Pa. 275 ; Pease vs. Tilt, destroys negotiability. Citizens Nat. 9 Daly (N. Y.) 229; Parker vs. Na- Bank vs. PicUet, 126 Pa. 194; 17 tions, 33 Tex. 210. Atl. 603. 196 THE J.AW OK SURETYSHIP. liable upon all the implied warranties _attaching to his position as transferor of property.^" A special indorsement to a specific person, without the addi- tion of words of negotiability, such as " or order," does not re- strict the subsequent negotiability of the paper. The original quality of negotiability remains.^' A special indorser, however, is only liable to such subsequent , parties as can trace their title through his special indorsement,^'' and although the holder may not under certain circumstances be able to. recover from the special indorser, because of the fact that he is not in the chain of title that leads up to him, yet he may recover from all prior parties whose liability has not been so restricted. Such a case may be illustrated by supposing a note payable to bearer, or payable to order, and indorsed in blank by the payee, and A being the holder indorses to B without adding words of negotiability, and B indorses in blanlc and delivers to C. Under these circumstances C cannot recover from A since as to A the paper is not negotiable, and he has not conferred upon B the authority to bind him by mere delivery or by indorsement in blank; but has title to the paper, and can recover from the original payee or any of the other parties preceding the special indorsement by A and any holder who owns the bill or note may strike out all the intervening special indorsements, and proceed against the earlier parties as if the parties with the special contract had never been connected with the transaction.^' -0 Dumont vs. Williamson, 18 O. makes tlie bill transferable by mere S. 515; Hannnm vs. Richardson, 48 delivery. When the first indorse- Vt. 508; Challiss vs. McCrum, 22 ment is in blank, the bill or note r.» Kan. 157; Watson vs. Chesire, 18 against the payee, drawer or aecept- [a. 202; Ticonic Bank vs. Smiley, 27 or, is afterwards assignable by mere Me. 225. delivery, notwithstanding it may 21 Leavitt vs. Putnam, 3 N. Y. have subsequent indorsements in 494; Edie vs. East India Co., 2 Burr. full; because a subsequent holder by 121 delivery may declare and recover, as 22 Johnson vs. Mitchell, 50 Tex. the indorsee of the payee, and strike 212. out all the subsequent endorsements, 23 Mitchell vs. Fuller, 15 Pa. 268, whether special or not." Modgers, J. : " A blank endorsement In Smith vs. Clarke, 1 Esp. 180, NEGOTIABLE INSTRUMENTS. 197 §125. Conditional and restrictive indorsements. A conditional indorsement is one in -which the indorser binds himself to pay upon some other condition than those created by law. Thus an indorsement which reads " Pay to the order of A. when he becomes 21 years old " or " Pay to the order of A. when- ever he pays me $100," are illustrations of conditional indorse- ments. While such conditions written upon the paper constitute full notice to all holders that the transfer of title was not absolute, yet the negotiability of the instrument is not thereby destroyed. If the condition is ultimately performed, the title of the sub- sequent holder becomes absolute by the terms of the contract. If the condition is not performed^ the rule is that the transfer is inoperative as to all prior parties, the immediate indorsee, and all subsequent parties who have notice of the non-performance at the time of the indorsement to them.^^ If the bill or note is in the hands of a bona fide holder, other it was said by Lord Kenyon : " It ment was, " Pay the within sum to would clog the circulation of bills Messrs. Clerk & Ross, or order, upon of exchange, if by indorsement of my name appearing in the Gazette this sort, where there might be sev- as ensign in any regiment of the cral, the holder was obliged to prove line, if within the 1st and 64th, if the hand-writing of the several in-, within two months from this date." Ore. 118; 24 Pac. 198; Barton vs. Amer. Nat. Bank, 8 Tex. Civ. App- 223; 29 S. W. 210; Burton vs. Hans- ford, 10 W. Va. 470. Contra — Temple vs. Baker, 125 Pa. 634; 17 Atl._516. In Pennsylvania the anomalous party is conclusively presumed to" be liable as second indorser, and nw liability to the payee can be estab- lisliod. 60 Ives vs. Bosley, 35 Md. 262r. 00 Roberts vs. Masters, 40 ImF. 401; Stack vs. Beach, 74 Ind. 571; Howe vs. Merrill, 5 Gush. 80. 216 THE LAW OF SUEETYSHIP. The rule as to parol proof will not be carried to the extent of. permitting evidence to be offered showing an agreement that no liability was intended."^ If the admission of parol proof to establish the contract be- tween the immediate parties is proper, no good reason is appar ent why it should be excluded when the parties to the issue are remote. If one signs for accommodation in such a manner, and in such a position, that a remote holder has no means of determining from an inspection of the paper, whether he is a surety, guaran- tor or regular indorser, such holder may always make himself safe by assuming that the anomalous party is in the chain of title, and in the regular course of business perfect his claim against him by timely demand and notice. If any change in this apparent contract is to result in a detriment to the remote party, it is manifestly unfair to bring it about by parol and ,1idthout his consent; but this shifting of the contract from an apparent indorser to that of surety is not a detriment to the holder, but an advantage, since he is thereby relieved of the duty of demand and notice. The remote party therefore is not in a position to complain of evidence tendered by the promisor to establish his status as surety. Neither is the promisor in a position to object to such evi- dence if tendered by the remote party, for this is establishing the very liability against the surety intended by him in the first instance. Again if the accommodation party signing before delivery, naerely to give the maker credit with the payee, makes his con- tract upon condition agreed to by the payee, that he should have the privileges of an indorser, that is, that the payee or any subsequent holder should make demand of the maimer on the day of maturity, and notify him promptly, the effect of this verbal contemporaneous agreement, if established, would be to rebut the presumption that the accommodation party signing bei'ore delivery is a surety or guarantor. °^ "iGeneser vs. Wissner, 69 la. 119; 108 Mich. 295; 66 N. W. 48. 28 N. W. 471; Gunz vs. Giegling, 8 2 Ante See. 129. NEGOTIABLE INSTRUMENTS. 317 The remote party, however, is at no greater disadvantage by the admission of parol proof to rebut this presumption, than the payee himself. Upon the hypothesis, therefore, that parol proof is admissible between the promisor and the one with whom he has immediate contract relations, for the purpose of showing the character of his liability, there does not appear to be any ground for ex- cluding such proof in actions between the promisor and a remote party."' §133. Indorsement in blank by a stranger upon a note payable to the order of the maker. If a party makes a note payable to himself, and another signs upon the back before delivery to a third party, these facts estab- lish the conclusion that the anomalous party signs to give the maker and payee, now combined in one person, credit with any one to whom the paper should be transferred. 83 A party not in the chain of title is not liable to the holder upon any of the implied warranties which the reguiar indorser makes as to the genuineness of prior signatures, or the capacity of prior parties to con- tract. (Post Sec. 135.) It may, therefore, be said that parol proof which shifts the position of the anomalous party fro^m that of an apparent regular indorser to that .of a surety, guarantor, or irregular indorser for accommodation, imposes upon the promisor a contract with ii limited liability, and that a remote holder who takes the paper without notice that the party is liable in any different way than that of a regular indorser, would have his security diminished without his ■<:'onsent, if the party can thereafter .be shown by parol to be an irregu- lar indorser, and not liable for the liieaeh of warranties chargeable to -I rejrular indorser. It must be observed, however, that this is not a necessary result of an application of the doctrine of the text, that the character of the con- tract, whether surety, guarantor or indorser, may be shown by parol as against a remote party; for a limit- ed liability, excluding the warran- ties of the regular indorser, results from the mere showing that the par- ty is not in the chain of title, and is not dependent upon showing what particular contract in suretyship was made. It may be doubted whether the fact that a party is not in the chain of title may be shown as against a bona fide holder, but the anomalous character of the indorsement being admitted, or known to the holder, the particular contract in surety- ship intended should be shown against all parties, if against any. 218 THE LAW OF SUEBTYSHIP. ' The promisor assumes a liability in some capacity to all sub- ■sequent holders, but the question is somewhat mooted whether he is liable as an indorser, with the privileges of demand and no- tice, or as surety or guarantor and not entitled to demand and notice. ' A much quoted dictum of the United States Supreme Court states that " If the note was intended for discount, and he put his name on the back of the note with the understanding of all the parties that his indorsement would be inoperative until the instrument was indorsed by the payee, he would then be liable only as a second indorser, in a commercial sense, and as such would be clearly entitled to the privileges which belong to such an indorser." °* 6* Mr. Justice Clifford, in Good vs. Martin, 95 U. S. 95. This pre- cise proposition was adopted in Greenough vs. Smead, 3 O. S. 415, as stated in the syllabus : " Where the paper is not designed for the payee, and his indorsement is also obtained to give the paper credit with a subsequent party, the party indorsing at the time or before the paper is drawn, may and should be treated as a second indorser." By the later cases in Ohio, two other rules are established upon somewhat different facts, but without any ap- parent difference in principle. The results now reached by that Court are as follows: 1. If the signing is before deliv- ery, with intent to give the payee credit with a third party, the liabil- ity is that of a second indorser. (Greenough vs. Smead, ubi supra.) 2. If the signing is after delivery, with intent to give the payee credit with a third party, the liability is that of an unconditional guarantor. (Castle vs. Eickly, 44 0. S. 490; 9 N. E. 136.) 3. If the paper is payable to the order of the maker, the intent to give the payee credit with a third person being a necessary presump- tion, the liability is that of a sure- ty. (Ewan vs. Brooks- Waterfield Co., 55 O. S. 596; 45 N. E. 1094.) By Statute (See. 3173, (i) Rev. St. Ohio) enacted in 1902, the irregular indorser upon an 'instrument payable to the order of the maker is deemed an indorser and entitled to demand and notice, and liable to all parties subsequent to the maker. See Blatchford vs. Milliken, 35 111. 434; Kayser vs. Hall, 85 111. 511; Chicago Trust & Savings Bank vs. Nordgren, 157 111. 663 ; 42 N. E. 148. In Illinois such presumption is conclusive. Ilately vs. Pike, 162 111. 241; 44 N. E. 441. See also First Nat'l Bank vs. Payne, 111 Mo. 291; 20 S. W. 41 ; Heidcnheimer vs. Blvunen- kron, 56 Tex. 308; Field vs. New Orleans Newspaper Co., 21 La. Ann. 24. Contra — Stevens vs. Parsons, 80 Me. 351; 14 Atl. 741. NEGOTIABLE INSTRUMENTS. 219 The relative position of the parties where the indorsement is upon a note payable to the maker, is exactly within the prin- ciple of this authority. A note payable to the mater cannot take effect as a bindiiig obligation upon any of the parties until delivered to a third person; so that the stranger signing before delivery, by neces- sary implication, signs only to give the paper credit with third persons, to whom it is negotiable. The expression usually em- ployed that such party is liable as a second indorser, is a harm- less fiction, leading possibly to some confusion, as it is not theoretically exact to describe the maker, under any circum- stances, as being in the position of first indorser, in a com- mercial sense."^ But being liaole as a second indorser, under these circum- stances, only means that the party has the same liabilities and privileges which a second indorser in the chain of title would have, and he recovers from the maker, who has also indorsed the note, not because the latter is an indorser, but because he is a principal in a suretyship contract and owes him the duty of indemnity. §134. Irregular indorser not bound by the implied warranties of the regular indorser. The regular indorser in the chain, of title must respond to the holder even though the name of the maker is forged, or the 05 Ewan vs. Brooks- Waterfield of the note, his signature on the Co., 55 O. S. 607. " It is un- back being an essential part of its doubtedly true that such a note execution, and his liability contin- is without any validity so long ues to be that of a maker only. He as it remains in the hands of does not thereby enter into the eon- the maker, and its indorsement and tract of an indorser, which is to pay transfer by him to a holder for the note if the maker upon demand value is necessary to give it obliga- fails to do so at maturity, and due tory effect. But it is equally true notice thereof be given. It would that by indorsing his name on the be a useless ceremony, if not a pal- back of the note and delivering it pahle absurdity, to require the hold- in that form to the holder, the mak- er to make demand of the maker and er does not become an indorser in give him notice of his own default, the commercial acceptation of that in order to charge him with the t°rTn. He is nevertheless the maker payment of the note." 220 THE LAW OK SUIiETYSHIP. maker is a minor, or under some other disability, or the obliga- tion upon the maker is void because of fraud or want of con- siderationj since the Law Merchant implies a warranty against these defenses.®' But such warranties are not implied if the party signing is not in the chain of title, and signs only for accommodation. A person is never held to pay the debt of another except there is a valid subsisting principal debt.®' Where the principal ob- ligation does not exist, as in a case of forgery or disability of the principal, or where the maker has a valid defense, the promisor in suretyship, whatever the form of his contract, cannot be held, without depriving him of his elementary right of indemnity. Furthermore, the basis of the implied warranties which the regular indorser makes, is that of a right to recover damages for failure of consideration, and is the application of the ordinary remedies of sales between vendor and vendee ; but an accommo- dation party cannot be placed in such a relation, inasmuch as he does not participate in the consideration for the transfer of the paper.®^ §135. Indorsement for transfer in the form of a guaranty. If a holder of negotiable paper transfers the same by writing above his name a contract of guaranty, such as where he indorses the words " I guarantee the payment of the within note," or oth- er words of similar import, it creates a special contract of sure- tyship, and enlarges the ordinary indorsement, inasmuch as the promisor can now be held for the default of the maker, without the demand and notice to which he would be entitled under a mere contract of indorsement The combination thus brought about by uniting the contract of the indorser vdth that of the guarantor, operates to give the holder the benefits of the indorser's contract, without the as- sumption of its burdens. He may hold the promisor as indors- er upon his implied warranties of the genuineness of the prior «« Ante Sec. 121. «s Susquehanna Valley Bank vs. '!' .-\nte Sec. 15. Loomis. 85 N. Y. 207. NEGOTIABLE INiSTRUMBNTS. 221 signatures, and of the capacity of die prior parties, and he may hold him in his capacity of guarantor against default of the maker, without making demand and giving immediate notice of the default. It has, however, been questioned whether the tefchnical con- tract of the indorser is preserved by such a transaction. A number of Courts of high authority have maintained the vie-w that such a qualified indorsing of the paper is a mere assignment, and. destroys negotiability. The suggestion that the negotiability of the paper is destroyed by a transfer in the form of guaranty, is a matter of serious consequence in practical commercial transactions, and should not be adopted except to preserve the consistency of the established Uiles of the Law Merchant. If the indorsee before maturity is to be deprived of protection as an innocent holder for value by the fact th'at his indorser has written a guaranty above his signature, as an extra induce- ment to accept the transfer, then the guaranty operates as a detriment rather than a benefit, for not only have all the privileges of a specialty disappeared as against the maker, but the guarantor himself may defend in- the same right as the maker. There is perhaps no more reason for holding that a transfer with a guaranty destroys negotiability, than to say that .such result follows any other enlargement of liability which accom- panies an indorsement for transfer, such for instance as a waiver of deinand and notice, whereby the indorser changes a- condition- al liability to an absolute one. S-uch enlarged obligation has never been considered as a restriction upon' negotiability. The ordinary technlical liability of the regular indorsfer is not essential to the protection of the ittdors* as a bona fide hold- er. The indorser may add- the words " Without recourse," thus declining to assume any liability for the de-fault of prior parties, without destroying negotiability.'^'' There is also abundant authority for the proposition that an indorsement in the form of an assignment does not take away the 69 Ante See. 124. 222 THE LAW OF SDEETYSIIIP. negotiable character of the instrument, nor deprive the assignee of his protection as a bona fide holder.'" The decided weight of the authority in this country is to the effect that an indorsement for transfer, accompanied by a guar- anty, does not destroy negotiability, but creates a contract of indorsement with an enlarged liability.'^ §136. Defenses of irregular indorsers — Order of liability — Con- tribution. If the anomalous party has been shown by the proof to have incurred the technical contract of an indorser, or if such con- tract is the result of a presumption of law, he thereby becomes invested with all the defenses of a regular indorser in the chain of title, and in addition thereto, with all the defenses of a prorb- isor in suretyship which he would have had if shown to be a technical surety, and it is immaterial whether the proof or presumption leaves him in the position of a first or second in- dorser, so far as his defenses are concerned. In either case, he is wholly discharged if demand and notice are omitted, and is dis- charged either wholly or in part by the failure of the holder to observe the equities of his suretyship. "Markey vs. Corey, 108 Mich. Wetherell, 44 111. App. 95; MePher- 184 ; C6 N. W. 493 ; Merrill vs. Hur- son Nat'l Bank vs. Velde, 49 111. ley, 6 S. Da. 592; 62 N. W. 958; App. 21; Nat'l Bank of Commerce Marks vs. Herman, 24 La. Ann. 335; vs. Galland, 14 Wash. 502; 45 Pac. Sears vs. Lantz, 47 la. 658; Adams 35; Muscatine Nat. Bank vs. Smal- vs. Blethen, 66 Me. 19; Davidson vs. ley, 30 la. ,t64; Robinson vs. Lair, 31 Powell, 114 N. C. 575; 19 S. E. 601; la. 9; Van Zant vs. Arnold, 31 Ga. Brotherton vs. Street, 124 Ind. 599; 210; Hatcher vs. Nat'l Bank, 79 Ga. 24 N. E. 1068; Lenhart vs. Ramey, 542; 5 S. E. 109; Johnson vs. Miteh- 3 0. C. C. 135. ell, 50 Tex. 212; Clay tTs. Edgerton, Contra — Spencer vs. Halpern, 62 19 0. S. 549 ; Kautzman vs. Weiriek, Ark. 595; 37 S. W. 711. 26 O. S. 330. '1 Green vs. Burrows, 47 Mich. Contra — Omaha Nat'l Bank vs. 70; 10 N. W. Ill; Russell vs. Walker, 5 Fed. Rep. 399; Tuttle vs. Klink, 53 Mich. 161; 18 N. W. 627; Bartholomew, 12 Met. 454; Lamou- State Nat'l Bank vs. Haylen, 14 rieux vs. Hewit, 5 Wend. 307 ; Trust Neb. 480; 16 N. W. 754; Crosby vs. Co. vs. First Nat. Bank, 101 U. S. Roub, 16 Wis. 643; Benton vs. 70. Flrloher. 31 Vt. 418; Packer vs. NEGOTIABLE INSTEUMENTS. Extension of time,'^ variation or alteration of the contract/^ release of securities in the hands of the holder,'* or release c(f the principal maker,'^ violate the duty which a creditor ov^es to another who is in the situation of a surety, and releases the latter from his engagement. If the proof or presumption leaves the promisor in the pos^i- tion of a surety or guarantor, all the defenses heretofore con- sidered,'" and applied generally to promisors in suretyship, are applicable to such promisors upon negotiable instruments, with some modifications made necessary by the character of nego- tiability, the chief of which relates to the obligations assumed by co-promisors toward each other in this class of instruments. There is no order of liability between co-sureties upon non- negotiable contracts, but the Law Merchant supplies certain rules which create an order of liability between the several signers upon negotiable commercial paper, depending upon either the time or the position of the signing, and this applies equally to the regular or the irregular indorsement, and it ap- plies also to the latter whether the contract is that of surety, guarantor or indorser. Indorsers for accommodation are liable to each other in the order in which their obligation arises in point of time. The first accommodation party must respond to those who are sub- sequent, the same as a regular indorser in the chain of title, in the absence of a special agreement making them liable to each other as joint co-promisors-.' 77 "Myers vs. Wells, 5 Hill. 463; N. VV. 558; Third Nat. Bank vs. Grafton Bank vs. Woodward, 5 N. Shields, 55 Hun 274; Guild vs. But- H. 99 ; Lime Rock Bank vs. Mallett, ler, 127 Mass. 386. 42 Me. 349; Pomeroy vs. Tanner, 70 '5 Lewis vs. Jones, 4 Barn. & Ores. N. Y. 547. 506 ; Lynch vs. Reynolds, 16 Johns. '« Bank of Newark vs. Crawford, 41 ; Trotter vs. Strong, 63 HI. 272 ; 2 Houst. (Del.) 282; Hert vs. Oehl- Paddleford vs. Thacher, 48 Vt. 574. er, 80 Ind. 83; Lisle vs. Rogers, 18 'e Ante Chapter IV. B. Mon. (Ky.) 528; Blakey vs. 7? Pratt vs. Hedden, 121 Mass. Johnson, 13 Bush (Ky.) 197. 116; Mulcare vs. Welch, 160 Mass. 7* Price Co. Bank vs. McKenzie, 58 ; 35 N. E. 97 ; Phillips vs. Plato, '91 Wis. 658; 65 N. W. 507; Bank of 42 Hun 189; Gillespie vs. Camnbell, Monroe vs. Giflord, 79 la. 300; 44 39 Fed. Rep. 724; Moody vs. Find- 224 THE LAW OF SUEETYSHIP. All accommodation parties, however, who sign before deliv- ery are joint promisors, and liable to each other in contribution,, and although they sign at different times, their several con- tracts constitute but one transaction/' Also where parties sign with an express understanding that they are to be jointly liable, such agreement will be enforced,- and one may have contribution from the other.'* Such agree- ment may be shown by parol. °° No evidence being adduced to the contrary, the several prom- isors will be presumed to have signed in the order in which they appear on the paper, and to be severally liable in succession.*' §137. The right of the holder to fill in blank indorsements. In the preceding sections there has bisen described the various- contracts attaching to a blank indorsement^ and the transactions may be summarized as follows : (1) The irregular indorser in the chain of title, with the privileges of demand and notice, under the rules of the Law ley, 43 Ala. 167; McDonald vs. Ma- the accommodation of the drawer, gruder, 3 Pet. 470. . . . The relation of the parties to- 78 Hagcrtliy vs. Phillips, 83 Me. the draft can in no sense be regard- 336; 22 Atl. 223; Pitkin vs. Flana- ed as creating a contract of joint gan, 23 Vt. 160; Preston vs. Gould, guaranty and suretyship." 64 la. 44; 19 N. W. 834. 'o Dunn vs. Wade, 23 Mo. 207; Contra — Shaw vs. Knox, 98 Mass. Armstrong vs. Cook, 30 Ind. 22; 21i; Bigelow,C. J.: " There was no Edelen vs. White, 6 Bush (Ky.) joint liability on the part of the de- 408. fendant with the subsequent indors- so Weston vs. Chamberlin, 7 Cush.- ers. The indorsers on the draft were 404; Smith vs. Morrill, 54 Mc. 48; all liable to the holders of the draft Coolidge vs. Wiggin, 62 Me. 568; for value on their several contracts Rhodes vs. Shcrrod, 9 Ala. 03; East- of indorsements. There was no agree- crly vs. Barber, 66 N. Y. 433. ment between the parties, when the Contra — Johnson vs. Ramsey, 43- draft was made and indorsed, that N. J. L. 279. they should hold any other lelation si Givens vs. Merchants' Nat., toward each other than that which Bnnk, 85 Til. 448; Hale vs. Dinforth, would result from thoir being sue- 46 Wis. 555; 1 N. W. 284; MarshalL cessive indorsers on the draft for vs. Cab;nine, 40 Mo. App. 38. NEGOTIABLE INSTEUMENTS. 225 Merchant,*^ coupled with the equities growing out of tlie surety- ship relation in which such indorser is placed.*' (2) The indorser not in the chain of title, signing for ac- commodation as surety or guarantor, and liable to the payee.** (3) The irregular indorser signing as a technical indorser^ and not liable to the payee. (4) The irregular indorser signing as a technical indorser, but liable to the payee. (5) Indorsement in blank, shown by parol to be restrictive or conditional.*^ (6) The irregular indorser, not entitled to contribution.*' (7) The irregular indorsement, with right of contribu- tion.*' Some of these obligations are established by presumption and some by proof of intent, or facts and circumstances from which intent is implied. This long array of possible variation in judicial construction of a signature in blank upon commercial paper, is a somewhat startling conmientary upon the failure of the common law to reach a scientific uniformity of rule in reference to a branck of the law where it is needed most of all. TKe authority which the Court assumes to " fill in " a blank indorsement by the use of parol proof to show intent, or having; made an interpretation implied by law to again permit parol proof to shift the position and rebut the presiunption so estab- lished, is perhaps less extreme, than those cases in which judicial sanction is given to the act of the holder of a negotiable instru- ment in filling in a blank indorsement by vrriting above the sig- nature what he conceives to have been the agreement of ths' parties, or what he understands to be the promise which the law- implies. To permit the holder to recover upon a contract so filled in, if the defendant does not succeed in disproving the terms imputed to him by the holder, gives to the instrument, thus altered in the 82 Ante Spc. 121. 85 Ante Sec. 126. 83 Ante Rpc. 122. 80 Ante Sec. 127. 84 Ante Sec. 129. 87 Ante Sno. l."!fi. 226 THE LAW OF SUEETYSIIIP. hands of the holder, the character of prima facie proof of its own verity, and puts the burden upon the obligor to correct the mistake of the holder, if he should chance to be wrong in his understanding of the terms of the contract. Such transactions cannot be justified by the same reasons which apply to cases where parties lend their credit to another by signing their names to incomplete instruments, to be after- wards filled out as promissory notes or bills of exchange. In such cases it will be presumed that the obligor intended to be bound in some manner, and by intrusting the making of the ])aj)er to another he will be estopped from denying his authority to fill in whatever is necessary to make the instrument eom- plete.'' But an indorsement in blank is in itself a complete contract, in contemplation of the law, from which some obligation will always be implied. The filling in of a blank indorsement so as to make it an in- dorsement in full to the holder, does not change the obligation in any respect from that which the law implies, since an in- dorser is liable to any holder, and such a transaction cannot be classed either as an alteration or a completion of a contract. The kind of alteration or " filling in " last referred to, how- ever, is distinct from those transactions which constitute a 88 " Where a party to a negotiable the act of the principal and he is instrument intrusts it to the cus- bound by it." Bank of Pittsburg tody of another with blanks not vs. Neal, 22 How. 107. filled up, whether it be for the pur- And again where the indorsement pose to accommodate the person to was upon the back of a blank note, -whom it was intrusted, or to be used and the holder filled in the amount for his own benefit, such negotiable en the face, after delivery to him, instrument carries on its face an it was held, " The Indorsement on a implied authority to fill up the blank note is a letter of credit for blanks, and perfect the instrument; an indefinite sum. The defendant and as between such party and in- said, ' Trust G. to any amount, and nocent third parties, the person to I will be his security ' It does not whom it was so intrusted must be lie in his mouth to s?y, the indorse- deemed the agent of the party ivho ments were not regular." Russell committed such instrument to his vs. Langstaffe, 2 Doug. 514. custody— ni', in other words, it ia NEGOTIABLE INSTEDMENTS. 227 change in the form of written instruments, already complete, by the addition of terms not apparent upon their face. Many courts lend their sanction to the practice of filling in blank indorsements by the holder, by writing out the contract claimed to have been made.^" Such innovation upon the rules relating to written instru- ments seems useless, and to render the confusion which already entangles commercial paper more difficult, without any corre- sponding benefit. siKillian vs. Ashley, 24 Ark. 511 Andrews vs. Slmms, 33 Ark. 771 Orriek vs. Colston, 7 Gratt. 189 Eiley vs. Gerrish, 9 Gush. 104 N. E. 6V5; Fuller vs. Scott, 8 Kans. 25; Maxwell vs. Vansant, 46 111. 58 j Boynton vs. Pierce, 79 111. 145; Worden vs. Salter, 90 111. 160; Scott vs. Calkins, 139 Mass. 529; 2 Leech vs. Hill, 4 Watts. (Pa.) 448. CHAPTER VI, BONDS TO SECURE PRIVATE OBLIGATIONS. Sec. 138. Private Obligations distinguished from OiBcial Duty in Public Office. Sec. 139. A Bond is a Specialty — Form and Execution. Sec. 140. The Signing and Sealing of a Bond. Sec. 141. Delivery and Acceptance are necessary to the Validity of a Bond. Sec. 142. Incomplete Bonds — Right of the Obligee to fill Blanks. See. 143. The Incorporation of other Instruments into the Bond by ref- erence. Sec. 144. Consideration. Sec. 145. Bonds obtained by fraud or misrepresentation. Sec. 146. Parol evidence in aid of construction. Sec. 147. Commencement and Duration of Liability Upon » Bond. See. 148. Bonds of General Indemnity, Sec. 149. Bonds to secure Building Contracts, with covenants for the pay- ment of Labor and Material Claims. Sec. 150. Alteration of the Principal Contract as a, Defense to Sureties upon the Bond. Alterations in Bond as a Defense to the Sureties. Surety upon Bond Estopped from denying the Recitals of the Bond. Measure of Damages upon Breach of the Conditions of a Bond. Same Subject — Where the Penalty or Forfeiture is Imposed by Statute. Interest as an Element in the Measure of Damages. Bonds to Induce Violation of Law are Void. Bonds to prevent performance of Public Duty or to Induce Acts in Violation of Public Duty are Void. Sec. 158. Discharge of Surety upon a Bond by Payment or Acts Equiv- alent to Payment. Sec. 159. Statutes of Limitations as a defense- to Sureties upon a Bond. See. 160. As to who are proper Parties in an Action upon a Bond. Sec. 161. Joinder of Parties Plaintiff. Sec. 162. Joinder of Partie.s Defendant. 228 Sec. 151. Sec. 152. Sec. 153. Sec. 154. Sec. 155. Sec. 156. Sec. 157. PRIVATE OBLIGATIONS. 229 §138. Private obligations distinguished from official duty in . fublic office. Private obligations are contractual, and the duties imposed arise from the agreement of the parties. OiBcial duty in Public Office is imposed by law, the terms ol which are either expressed directly in a statute defining the duty, or implied from the statute creating the ofSce. Private obligations are subject to the will of the parties, they are conventional, and in varying form as the parties may finally stipulate between thertiselves, and may thereafter be waived in whole or in part. Ofiicial duty is fixed, and subject to no modification or waiver by convention between the obligor and obligee. It de- pends on the law for its expression, and no representative of the Sovereign power, whether executive or judicial, is clothed with authority to suspend or vary the terms of Ofiicial duty. Bonds to secure the performance of private contracts, and bonds of Public Ofiicers, by reason of these inherent differences in the character of the obligation to be secured, are subject to rules of construction which differ in many important respects. In this chapter will be discussed bonds given to secure the performance of voluntary contracts, whose terms are wholly defined by the parties themselves, without any dictation from the law, although, in some instances, the law dictates the kind of bond that must be made as a security, such as bonds to secure the performance of contracts made with the State or Munici- pality in furnishing supplies or erecting public works. General and special indemnity bonds, including agents and employees in positions of trust; bonds to secure the perform- iinee of building contracts, or to secure against loss from failure I if title, or to indemnify against the consequences 'of legal ac- tion, bonds against loss by reason of the insolvency or other breach in the contract of another, constitute the special field of tliis chapter. 230 THE LAW OF STJEETYSIIIP. §139, A bond is a specialty — Form and execution. A bond is an instrument of great formality, made usually with care and deliberation, and except in those States where private seals are abolished by Statute, is required by law to be under seal, and is a specialty. In its formal parts it purports to bind the obligors and their heirs and representatives, with recitals as to the terms of the principal contract, and the duty or indemnity to be secured, with a defeasance or conditional covenant, setting out the limita- tions upon the liability of the sureties. It is not necessary that the bond recite with nice precision the several constituent terms of the imdertaking. Apt words may always be found to express exactly the partic- ular contract which in law is deduced from a bond, but the obligation will not fail because the parties employed less ap- propriate words to express their meaning.^ It is essential, however, tliat the instrument recite that there is a debt or obligation to be secured, with a promise to pay the debt or perform the obligation,^ and there must appear in some form the condition upon which the obligation is to become void. Otherwise the instrument is not a bond, and will not impose any liability upon the surety.^ Also a bond will be a nullity unless the obligee is named therein. There must be a certainty as to the person to whom the obligation runs.* Even proof of a delivery to a particular person, is not sufficient to supply the deficiency."* - Inhabitants of Trescott vs. Moan, If the obligee is described with 50 Me. 347. sufficient certainty to identify him, 2 Wood vs. Chetwood, 40 N. J. although not named, it will be sufB- Eq. 64. cient. Thus where the obligation s Fitzgerald vs. Staples, 88 111. was to pay a certain note which 234. was described in the bond, and the * Garrett vs. Shove, 15 E. I. 538; name of the payee of the note given, Atl. 901; Sacra vs. Hudson, 59 it was considered that the obligee Tex. 207 ; Preston vs. Hull, 23 Gratt. was described with sufficient certain- 600; Pelham vs. Grigg, 4 Ark. 141. ty. Leach vs. Flemming, 85 N. C. » Phelps vs. Call, 7 Ired. (N. C.) 447. 262. PEIVATE OBLIGATIONS. 231 These questions are here made without reference to the right of the holder to fill in blanks and supply the omissions as to names, dates and other formal requirements." But where this has not been done, under the rules for the completion of unfinished instruments by the application of the principles of agency, the courts will generally refuse to permit a reformation, such as for instance, the admission of parol proof to supply the amount of the penalty, where it has been left blank.^ It is not necessary that the name of the obligors appear in the body of the instrument. These names being signed to the paper will sufficiently establish a promise, although blanks are left for the name of the obligor in the covenant which recites the promise.* §140. The signing and sealing of a bond. A bond which purports to be the obligation of both the prin- cipal and surety, must be executed by both. If the principal does not sign, the surety is not bound." . Many forms of bonds do not require the signature of the prin- cipal. The latter is already liable to the obligee upon the con- tract which the bond secures, and no additional liability is created by including him as a party to the bond, although it serves a useful purpose in the matter of the remedy for en- forcing the liability, if both are parties to the bond, since the instrument may be declared upon in a single action against both. It is not necessary that the signature be actually affixed by the party himself, if he afterward acknowledges the bond and ratifies the signing made by another without his authority he will be bound. ^° oPost Sec. 142. Danker vs. Atwood, 119 Mass. 140; 'Church vs. Noble, 24 111. 291; Moore vs. McKinley, GO la. 307; Copeland vs. Cunningham, 63 Ala. 14 N. W. 708. 394; Bvarts vs. Steger, Ore. 55. "Goodyear Dental Vulcanite Co. 8 Partridge vs. Jones, 38 O. S. vs. Bacon, 151 Mass. 460; 24 N. E. 375; Building Association vs. Cum- 404. mings, 45 0. S. 664; W N. E. 841; "'Hill vs. Scales, 15 Tenn. 410; Howell vs. Parsons, 89 N. C. 230; Manhattan Life Ins. Co. vs. Alexan- 232 THE LAW OF SURETYSHIP. It has been held that the bond need not be signed at all to be binding, if the instrument is sealed." The courts have liberally construed the requirements of the Statute of Frauds in reference to the signing of contracts withii) the provisions of the statute, and the signature may be by the initials, or the mark of the party, or even be printed, if there is evidence of its adoption by the party to be charged, and may be placed on any part of the instrument, if so placed as to authenticate the paper as the act of the party.^^ Where the signature is follovsred by words descriptive of the official position of the signer, such as " Cashier," it will be bind- ing as the personal obligation of the signer, unless he shows that the Bank or other party for whom he was acting has the power to execute the bond, and that he had authority to bind them.^^ A seal is a symbol of the genuineness of the bond, and im- ports that the instrument was executed with deliberation." der, 89 Hun 449; 35 N. Y. S. 325. If the obligor delegates to another authority to execute a bond, he will be bound, but such authority must be in writing. Basham vs. Common- wealth, 76 Ky. 36. 11 Jeffery vs. Underwood, 1 Ark. a08; Curd vs. Forts, 9 Ky. 119. 12 Ante Sec. 30. Where the Statute of Frauds re- quires the writing to be " sub- scribed " by the party to be bound, as in New York, a printed signature is not deemed a compliance with the Statute. Vielie vs. Osgood, 8 Barb. 130; Davis vs. Shields, 26 Wend. 341. 13 Gardner vs. Cooper, 9 Kans. App. 587 ; 58 Pac. 230 ; 60 Pac. 540. n Seals have been employed from very ancient times, as an evidence of andienticity. In the earliest records of liistory are to be found many irislanecs of the use of the seal as a symbol of attestation. " And 1 bought the field of Hana- meel and weighed him the money,, even seventeen shekels of silver, and I subscribed the evidence, and sealed it, and took wit- nesses, and weighed him the money in the balances, so I took the evidence of the purchase, both that which was sealed accord- ing to tlie law and custom, and that which was open." — Jeremiah xxxii, 9-11. The charter of Westminster, granted by Edward the Confessor, does not bear the signature of the monarch, but only his seal. The use of individual seals bear- in!j the family coat of arms, or other distinctive character; was a safeguard against fraud and for- gery, and furnished evidence of gen- uineness which was ofpractical im- portance in determining the charac- ter of written instruments, in the days when the ordinary machinery of the law offered little if any pro- tection. PEIVATE OBLIGATIONS. 233 Where there are several signers, one seal is sufficient to au- thenticate the signatures of all." A seal imports a consideration, and want of consideration is not a defense to a bond under seal." In some States the Legislature has made the seal only pre- suwptive evidence of a consideration.^' Richard I. introduced the device of a mounted knight upon the indi- vidual seals then in use, and many curious and elaborate devices, in- tended to be difficult of imitation, were in common use, even down to the beginning of the 19th century. A private seal has now no practi- cal value as evidence of genuineness. It has been, in eflfeet, repudiated by the Courts, which treat it as the merest formality, by recognizing as sufficient a printed scroll, in the place where the seal should be at- tached. Locus Sigilli, abbreviated as " L. a.," originally intended merely to indicate the place where the seal should be put, has become a substi- tute for the seal itself. Smith vs. Butler, 25 N. H. 524. Any mark or sign, however small, intended by the writer as a seal, will be given such effect. In Hacker's Appeal, 121 Pa. 192; 15 Atl. 500, the name was followed by a dash, such as was used in the body of the instrument for the pur- poses of punctuation, but this was held to be sufficient as u seal. The Legislature in a number of the States has recognized the fic- tion which is now represented by I private seals, and abolished them al- together. This has been done in Ohio, Indiana, Iowa, Kansas, Ne- bra-ska, Tennessee, Texas, North Da- kota, South Dakota, Montana, and Mississippi. In other States the legislation has taken the form of abolishing the distinction between sealed and unsealed instruments, as in Kentuelcy, California, and Ore- gon. 15 Building Association vs. Cum- mings, 45 0. S. 6G4; IG N. E. 841; New Orleans St. L. & C. Ry. Co. vs. Burke, 53 Miss. 200. Northuniberr land vs. Cobleigh, 59 N. H. 250. But see Hess's Estate, 150 Pa. 340; 24 Atl. 076. 10 Cosgrove vs. Cummings, 195 Pa. 497; 46 Atl. 69. Storm vs. United States, 94 U. S. 76, Clifford, J. : " The agreement here is under seal, and the action is an action of debt founded on the bond given to secure the perform- ance of the agreement; and it is an elementary rule, that a, bond or other specialty is presumed to have been made upon good consideration, so long as the Instrument remains unimpeaehed." Van Valkenberg vs. Smith, CO Me. 97; Harris vs. Harris, 23 Gratt. 737; Aller vs. Aller, 40 N. J. L. 446; Jerome vs. Ortman, 66 Mich. 668; 33 N. W. 759. 17 Such Statutes have been enact- ed in New York, New Jersey, Michi- gan, Wisconsin, Oregon, and Nebras- ka. 234 THE LAW OF SOEETTSHIP. f 141., Delivery and acceptance are necessary to the validity of a bond. A bond cannot take effect until delivered and accepted by the obligee. To constitute a delivery there must either be. an actual manual passing of the instrument to the obligee, or to some one authorized to receive it for him, or such a disposition of it by the obligor as precludes him from further control over the bond. Such delivery must be without condition, and where a bond is put in possession of the obligee, with the stipulation it is not to take effect except upon condition, it does not become a legal delivery, and binding upon the surety, until such condi- tion is fulfilled." The possession of a bond by the obligee is prima facie evi- dence of a legal delivery.^" The retention of a bond by the obligee is prima facie evidence of the acceptance and approval of the same.^" Sureties incur no liability for default between the date of the bond and the date of delivery, unless the contract expressly pro- vides that it shall be in force from date. 18 Weed Sewing Machine Co. vs. A delivery to a third person au- Jeudevine, 39 Mich. 590. thorized by an obligee to receive the Where the obligee receives the bond, will constitute a legal delivery, bond upon condition that it is not Where a bond is duly executed, to take effect until others sign as but not delivered until after the co-sureties. Such conditions may be death of the obligor, it will not be shown, and the delivery is not com- binding. Fay vs. Richardson, 7 plete. Stuart vs. Livesay, 4 W. Va. Pick. 91. 45. 20 Engler vs. People's Fire Ins. See also Whitsell vs. Mebane, 64 Co., 46 Md. 322; Union Bank of N. C. 345. Maryland vs. Ridgeley, 1 Har. & G. 10 Wood vs. Chetwood, 40 N. J. (Md.) 324; Mailers vs. Crane Co., Eq. 64; State vs. Suwanne Co. Com- 92 111. App. 514. missioners, 21 Fla. 1 ; Grim vs. Where the possession is shown to School Directors, 51 Pa. 219 ; Blank- be merely for the purpose of inspee- man vs. Vallejo, 15 Cal. 638; Bost- tion, the presumption of acceptance wick vs. Van Voorhis, 91 N. Y. 353 ; is rebutted. Comer vs. Baldwin, 16 State vs. Ingram, 27 N. C. 441; Minn. 172. Kranichfelt vs. Slattery, 33 N. Y. S. 27. PKIVATE OBLIGATIONS. 235 Where a bond recites that it shall run for 12 months from its date, the surety will be liable for defaults occurring between the date and the delivery. ^^ §142. Incomplete bonds — Right of the obligee to fill blanks. The delivery of bonds in an incomplete form will generally fall within one of two classes. Where the instrument comes to the obligee Avith blank spaces which must be filled in, in order that the bond may take effect, but without any direction or condition being communicated to the obligee as to what shall be placed in these blanks, or Where the bond is delivered incomplete, but with an under- standing as to how it is to be completed. In the first of these cases, there arises an implication that the blanks may be filled by the holder in such a manner as will make the obligation binding upon the parties.^^ In the latter case, the holder is limited to the real contract, and nothing in addition to the agreement of the parties can be inserted, even though the instrument does not thereby become complete and effective, and if the holder or his agents have added conditions not agreed upon, or failed to insert stipula- tions as directed, the sureties under a plea denying the execu- tion may show the real understanding of the parties.^' 2' Mtna. Life Ins. Co. vs. Ameri- Peace to draft the bond, and the ran Surety Co., 34 Fed. Eep. 291; obligors stipulated the conditions Supreme Council Catholic Knights agi-eed upon, and signed the bond vs. Fidelity & Casualty Co., 63 Fed. in blanlc, intrusting to the Justice Rep. 48; Post See. 148. to iill it in as stipulated. The See also Oregon Ey. & Nav. Co. bond was not. filled in as agreed, vs. Swinburne, 22 Ore. 574; 30 Pac. and being set up as a eounter- 322. claim in an action by the obligor 22 South Berwick vs. Huntress, 53 against the obligee, held — Earl, J. : Me. 89 ; Dolbeer vs. Livingston, 100 " If this had been a complete bond Cal. 617; 35 Pac. 328; Rose vs. when the plaintiff signed it, al- Douglass Township, 52 Kan. 451; though by mistake or fraud, it did 34 Pac. 1046; Kinney vs. Schmitt, not express the true agreement be- 12 Hun 521. tween the parties, his sole remedy 23 Richards vs. Day, 137 N. Y. would have been to procure its re- 183- 33 N. E. 146. In this case the formation, and when an effort was parties employed a Justice of the made to enforce the bond against 236 THE LAW OF SUEETYSHIP. §143. The incorporation of other instruments into the bond by reference. A bond is executed to secure some other contract between the principal and the obligee. The terms of that contract are a necessary part of the bond, and for convenience as well as to ; avoid mistake in the exact terms of the obligation assumed, it is usually deemed sufficient to incorporate the main contract in , the bond by reference, thus making it part of the bond, the same as if fully set out. A mere reference, however, without reciting in the bond the substance of the contract referred to, would be void for uncev- .tainty, such as a reference to a building contract, and the plans and specifications, without designating other facts to identify what building is referred to. If the main contract is broader in its scope than the limits fixed in the bond, a reference to the contract will only incor- him he could not contradict the terms thereof by parol evidence, ex- cept by proper allegations in his pleading asking for its reformation. But here the plaintiff did not sign any bond. He signed a blank piece of paper, and it would have been suf- ficient for him on the trial to prove that he simply signed a blank piece of paper, and then it would have been necessary for the defendant to show that he authorized the blank to be filled up, and how and under what circumstances, the authority was given and what the authority was. A party who signs a blank piece of paper cannot be bound to the obligation written therein, un- less it can be shown that he gave the person who wrote it authority. . . Suppose the justice of the peace, instead of inserting payments in this bond, as agreed, had inserted therein a conveyance of real estate, or n bond for absolute payment of the principfil of a large sum of money ; or, suppose the plaintiff had signed this blank bond without au- thorizing any one to fill it up, and some unauthorized person had af- terward filled it up as it now ap- pears; in either of these cases would the bond thus filled up and com- pleted in form have been the bond of the plaintiff ? Certainly in neith- er case could it have been said that the plaintiff executed such a bond. " Here so far as the bond departed from the agreement of the parties it was not the bond of the plaintiff. The only authority the justice of the peace had was to insert in this bond the precise agreement of the parties as directed. As he did not do that this is not, in the' form it now appears, the bond of the plain- tiff, and under a denial that he executed the bond he may show the circumstances under which he sign- ed his name and what the agreement at the time he signed it was." PRIVATE OBLIGATIONS. 237 porate so much of the same as is within the limits of the terms of the bond. Thus where a building contract provides for the performance of labor and the furnishing of the material, and the bond is given to secure the performance of the labor in accordance with the contract and specifications, which contract and specifications are made a part of the bond by reference. Such reference will not render the surety liable for default in furnishing the mats- rial. '' In general the bond will be construed in accordance with the terms of the agTeement as ascertained by reading together the. bond and the contract to which reference is made."" 2*Dunlap vs. Eden, 15 Ind. App. 575; 44 N. E. 560. The bond in this ease recited that the principal had entered into a contract to per- form the labor and furnish the ma- terials, but the defeasance clause in the bond reads, " Now should the aforesaid contractor do and com- plete said work as aforesaid, etc.,'' omitting all reference to furnishing the materials, the liability arising out of materials was considered not to be within the scope of th'e bond. Noyes vs. Granger, 51 la. 227; 1 N. W. 519. See also Electric Appliance Co. vs. U. S. Fidelity & Guaranty Co., 110 Wis. 434 ; 85 N. W. 648. Here the Building Contract pro- vided that the Contractor would per- form the labor and furnish the ma- terials, and would pay all claims for labor and material. The contract also provided for the giving of a bond to secure the performance of all the covenants of the contract. The bond was conditioned for the performance of the labor, and fur- nishing of material, but omitted the covenant in reference to the pay- ment of claims. It contained, how- ever, a general clause that the eon- tractors should " Well, truly and faithfully comply with all the terms,' covenants, and conditions of said contract on their part to be kept and performed, according to its terms." The Court held: "The fact that the city expressly contracted that the bond given should be given for the paj'^ment of materialmen and la- borers, and then accepted a bond without such a condition, is clearly a waiver of that condition of the contract, and indicates an intention to abandon or relinquish its scheme in that respect." 25 Forst vs. Leonard, 112 Ala. 296; 20 South. 587; .Mackenzie vs. Edinburg School Trustees, 72 Ind. 189. Jordan vs. Kavanaugh, 63 Iowa 15-2; 18 N. W. 851. In this case the contract referred to, obligated the principal to perform the labor of constructing a railway, and to pay the claims of labor and materialmen, and the Surety was held to have as- sumed, by this reference, a liability ' for the performance of the entire contract, including the payment of labor and material claims. City of New York vs. New York '- 238 THE LAW OP SUKETYSIIIP. Wkere the reference is to the By-Laws of a Corporation, for a further description of the duties of an officer whose fidelity Is the subject of the bond, it is held that the Siireties incorporate the by-laws into their contract. ^° §144. Consideration. The main contract which the bond secures furnishes a consid- eration for the bond, where the one depends upon the other, such as where the obligee agrees to make a contract with the principal upon the condition that the latter will furnish a bond,^' or where a contract of employment is tendered upon the condition that the employee will give a bond. Where the By-Laws of a Bank required that its Cashier give a bond before entering upon his duties, the employment was held to be sufficient consideration for the bond.''* Refrigerator Co., 82 Hun 553; 31 N. Y. S. 714; Kimball Co. vs. Baker, 62 Wis. 526; 22 N. W. 730; Locke vs. McVean, 33 Mich. 473 ; State vs. Tiedemann, 69 Mo. 515. 20 Humboldt Sav. & Loan Soc. vs. Wennerhold, 81 Cal. 528; 22 Pae. 920. 27 Smith vs. Molleson, 148 N. Y. 241 ; 42 N. E. 669. 28 La Rose vs. Logansport Nat. Bank, 102 Ind. 332; 1 N. E. 805. In this ease the cashier entered upon the performance of his duties, two weeks before giving his bond, and the contention was that there was no consideration for the bond, since his employment was not made to depend upon it, and that the obligee had in effect waived the requirement for the bond by permitting him to enter upon his employment without it. The Court said: " It is further contended, that as the complaint avers that G. was appointed cashier on the 9th day of January, 1878, and the bond was not approved until the 23d day of January. 1878, the bond was in consequence executed without consideration. " We do not agree with this view of the case. It is averred in the complaint that a by-law of the bank, which is set out, required the cash- ier to execute a bond in u stipu- lated amount, and that in pursuance thereof the bond in suit was exe- cuted. Whether the cashier entered upon his duties before or after the bond was approved, does not clearly appear. Nor is it material. It does appear that the bond was required, and that in pursuance of such re- quirement, the bond in suit was ex- ecuted and approved, and that G. entered upon and continued his du- ties as cashier. It is clearly im- plied, if it is not averred in terms, that he obtained and continued in office as cashier, by reason of the fact that the bond was to be and was executed. This was a sufficient consideration, and the bond was ef- fectual and operative, at least, from the date of its approval." PRIVATE OBLIGATIONS. 239 A consideration cannot be founded upon a contract already? executed, before the bond was required, as where after land had • been conveyed by warranty deed, and an incumbrance not before known to the grantee is discovered, it was held that the purchase of the land did not amount to a consideration for the bond of indemnity, thereafter demanded and furnished by the grantor, ■and that the sureties were not liable, there being no new consid- eration/' Again where the bond to secure a building contract was not demanded until two months after the date of the contract, it was held that there was no consideration.'" The mere fact that the bond was executed subsequent to the building contract, will not of itself avoid the consideration, where it is shown that the contract was made upon the condition that the bond would be furnished at a later date.^^ A seal upon a bond imports a consideration.^^ In those States where seals are abolished, and the consideration is not expressed upon the face of the bond, it may be shown by parol.*' But where a consideration is recited in the bond it cannot be contradicted by parol.^* The burden of proving a failure or lack of consideration is on the party who makes the claim.*° An instrument in the form of a bond where seals are not re- quired, although not expressing any consideration, will be 29 Peek vs. Harris, 57 Mo. App. 33 Singer Mfg. Co. vs. Forsyth, 467. A bond of indemnity to a 108 Ind. 334; 9 N. E. 372; Miller Sheriff, to induce him to perform a vs. Fichthorn, 31 Pa. 252. duty enjoined upon him by law, will a* Cocks vs. Barker, 49 N. Y. 107; be void for want of consideration. Miller vs. Bagwell, 3 MeCord ( S. C. ) Mitchell vs. Vance, 5 T. B. Mon. 562. Stetson & Post Mill Co. vs. App. 289. McDonald, 5 Wash. 496; 32 Pae. 68 American Bldg. & Loan Assn. 108. 252 THE LAW OF SUEKTYSHIP. Such a rule is to be upheld, either upon the ground of in- crease of the risk to the surety, or that the contract so changed was not the one which the Surety agreed to stand good for, and therefore he should be released, whether the risk has been in- creased or not.'"' • Changes in a building contract which impose additional duty upon the contractor, and which are not anticipated by terms of general waiver in the bond, will discharge the sureties.'^ Bonds to secure the faithful performance of duty by persons in a position of trust, will be released by a change in the office or employment, whereby new contract relations are assumed be- tween principal and obligee. Such as where an Assistant Bookkeeper in a Bank gives a bond, and subsequently is promoted to the position of Discount Clerk. Defalcations in the latter employment, although within the period covered by the bond, were held not to be a breach of the contract.'^ '0 Ante See. 72. '1 Judah vs. Zimmerman, 22 Ind. 388. '2 Baltimore First Nat. Bank vs. Gerke, 60 Md. 449. See also American Telegraph Co. vs. Lennig, 139 Pa. 594; 21 Atl. 162; Garnett vs. Farmers' Nat. Bank, 91 Ky. 614; 16 S. W. 709; Manufacturers' Nat. Bank vs. Dick- erson, 41 N. J. L. 448; National Mechanics' Banking Assn. vs. Conk- ling, 90 N. Y. 116. Here the language of the bond •was " Shall faithfully fulfill and discharge the duties committed to and the trusts reposed in him as such bookkeeper and shall also faith- fully fulfill and discharge the duties of any other office, trust or employ- ment, relating to the business of said association which may be as- signed to him, or which he shall undertake to perform." '11 is was construed to be limited to the duties of the principal as bookkeeper, or in any other position of trust in tne bank which he might temporarily perform while holding the position of bookkeeper, but not to include his faithful performance of duty as Receiving Teller to which he was promoted. Earl, J. : " The sureties under- took for the fidelity of their prin- cipal only while he was bookkeeper; but if while bookkeeper the duties of any other office, trust or employ- ment relating to the business of the bank were assigned to him, their ob- ligation was also to extend to the discharge of those duties. While bookkeeper he might temporarily act as teller or discharge the duties of any other officer during his tem- porary illness or absence, or he might discharge any other special duty assigned to him, and while he was thus engaged the bank was to have the protection of the bond. PEIVATB OBLIGATIONS. 253 But it is not a defense to the surety that the risk is increased by additional duties imposed on the principal as an incident to the enlargement of the business/' Neither will the sureties be discharged by an addition of new duties which do not modify or abrogate the duties recited in the bond, nor interfere with their due performance.'* It has been held that where an agent executed a bond to in- demnify his principal against loss while acting as agent in a cer- There are no words binding the sureties in case of the appointment of tlieir principal to any other of- fice. Thej' might have been willing to be bound for him while he was bookkeeper, or temporarily assigned to the discharge of other duties, but yet not willing to be bound if he should be appointed teller or cash- ier and as such placed in the pos- session or control of all the funds of . the bank A surety is never to be implicated beyond his specific engagement, and his liability is always sirictissivii juris and must not be extended by construction." Detroit Savings Bank vs. Ziegler, 49 Mich. 157; 13 N. W. 496; North- western Nat. Bank vs. Kean, 14 Phila. Eep. 7. See also Union Dime Savings In- stitute vs. Neppert, 51 Hun 640; 21 N. Y. S. R. 723. Where the language of the bond was, " shall faithfully and honestly discharge his duties as such Clerk, or in whatever capacity he may serve said Bank." This recital was deemed broad enough to . cover the defalcations of the principal in his office as teller to which he was promoted. To the same effect see Fourth Nat. Bank vs. Spinney, 120 N. Y. 560; 24 N. E. 816. The distinction has been made in many cases between a promotion to a higher office, and a temporary as- sumption of the duties of another office. In the latter case, the sure- ties upon the bond will be liable for defalcations of the principal while temporarily discharging the duties of another. Johnson vs. Eaton Milling Co., 18 Col. 331; 32 Pac. 825; Third Nat. Bank vs. Owen, 101 Mo. 558; 14 S. W. 632; Wallace vs. Exchange Bank, 126 Ind. 265; 20 N. E. 175. '3 Eastern Railroad Co. vs. Loring, 138 Mass. 381. In this case the principal was a Ticket Agent, and the Railway extended its connec- tions, thus increasing the business of the office. This was held not to be an alteration of the contract of employment. But see Grocers' Bank vs. King- man, 16 Gray 473, where an in- crease in the capital stock of the bank from $300,000 to $750,000 was considered as being a giound for discharging the sureties of the cash- ier by reason of the increase of his responsibilities. The principal of this case is distinctly repudiated in Lionberger vs. Krieger, 88 Mo. 160. ■^4 Harrisburg Sav. & Loan Assn. vs. U. S. Fidelity & Guaranty Co., 197 Pa. 177; 46 Atl. 910. ^54 THE LAW OF SUEETYSHIP. tain territory that the sureties will not be liable for his defaults in a new territory assigned to him.'^ A change in the amount of the compensation of the principal, while amounting to an alteration in the main contract, in a sense, is not, however, such an alteration as comes within the rule wliich discharges the surety/" Where a bond recites the salary of the office or appointment, a reduction of the salary without the consent of the surety, will discharge the latter.'^ §151. Alterations in bond as a defense to the sureties. Alterations in a bond, after delivery, without the consent of the surety, will discharge the latter, if such alterations are ma- terial. The test of materiality is whether the liability under the bond has been increased or diminished. Even alterations which are beneficial to the surety will vitiate the bond. This rests mainly on grounds of public policy, which requires that the integrity of written instruments be preserved, by making the penalty suffi- cient to deter those having the custody of such writings, and who are the beneficiaries, from mutilating or in any way changing their identity.'* There is also a sufficient justification for the rule in the in- herent equities of suretyship, whereby the obligations are strict- ly construed, and the promisor held only upon the exact terms of his undertaking.'^ 7s Wheeler & Wilson Mfg. Co. vs. ble only so long as the overseer was Brown, 65 Wis. 99; 25 N. W. 427; coptinued at the same salary." White S. M. Co. vs. Mullins, 41 Amicable Mut. Life Ins. Co. vs. Mich. 339; 2 N. W. 196. Sedgwick, 110 Mass. 163. 70 Frank vs. Edwards, 8 Welsh. ''^ North Western R. R. Co. vs. H. & G. 214, FarUe, B.. "If the Whinray, 10 Ex. 77. sureties Iiad thought that the amount 's Ante Sec. 79. of the salary was an essential in- to Anderson vs. Bellenger, 87 Ala. gredient in the contract, they ought 334; 6 South. 82, McClellan, J.: to have taken care to have had a, " The contract of suretyship must be stipulation inserted in the condition strictly construed in favor of the of the bond, that they would be lia- surety. His obligation is volun- I'KIVATE OBLIGATIONS. 255 Changes in a bond which are not material do not release the sureties, as where words are added for the purpose of a more complete description of the subject matter of the bond/" or an extension of the language to include specifically that which ia already implied in the tenor of the bond.'^ An interlineation, made by a stranger is a mere act of spolia- tion, and will not invalidate the bond.*" Alterations apparent upon the face of the bond will be pr&- sumed to have been made before delivery.^'* A restoration of the instrument to its original condition will not revive the liability against the surety, except where the al- teration was without fraudulent intent. In such cases the bond may be restored and the surety held.^* §152. Surety upon bond estopped from denying the recitals of the bond. A party to a contract cannot be permitted to deny, or offer proof to controvert that which he has affirmed in the contract. Estoppel is an obstacle imposed by law to prevent one from denying the truth of a statement which he has led another to be- lieve is true, and who has acted upon that belief. tary, without any consideration 8i Western Bldg. & Loan Assn. vs. moving to him, without benefit to Fitzmauriee, 7 Mo. App. 283. him, entered into for the accom- ^2 White Sewing Mach. Co. va. , ,. „ , . • ■ 1 „j „„„ Dakin, 86 Mich. 581 ; 49 N. W. 583 ; modation of his principal, and gen- „ , , , , . „ , '^ '^ , ,,. Schlageek vs. Widhalm, 59Neb. 541; erally, also, for that of the obligee; • „ , and courts see to it that his liabil- 33 Xander vs. Commonwealth, 102 ities thus incurred are not enlarged pa. 434. beyond the strict letter of his under- But see Nesbitt vs. Turner, 155 taking. To the extent, and in the Pa. 429; 26 Atl. 750, where the al- manner, and under the circumstances teration was of such a character pointed out in his obligation, he is ^'^^^ ^^ ^^s held to raise the pre- bound, and no further. His con- ^'"Ptioii of an alteration after de- livery tract cannot be changed in any re- ,„ V , , ,.„ „„ , ,, i. . Westmoreland vs. Westmoreland, spect. Whether an alteration is or .„ _, _„„ ,_ „ „ .„„„ _ ^ 92 Ga. 233; 17 S. E. 1033; Dangel IS not to his benefit, is not open to ^^^ ^evy, 1 Idaho 722; Brand vs. inquiry." Johnrawe, 60 Mich. 210; 26 N. W. 80 Rowley vs. Jewett, 56 Iowa gg^. 492; N. W. 353. 84 Rogers vs. Shaw, 59 Cat 260. 256 THE LAW OF SUEETTSHIP. In applying the doctrine of estoppel, it is -wholly irrelevant asr to -whether the recitals are true or not, if it is sho-wn that the representation has in fact been acted upon. A surety upon a bond is estopped from denying that the con- tract bet-ween the principal and obligee has been duly executed, where such execution is recited in the bond, even though there is no binding contract by reason of the fact that the parties failed to sign the same.'^ Where the bond recites that the principal has been appointed as agent, or to some other position of trust, the surety will be estopped from denying the appointment ; *° and where the date of the agency is set out in the bond, it is conclusive upon the surety, and it cannot be shown that the agency did not go into effect on that date, whatever the fact may he." Again, where a bond reciteid the words, " Sealed with our seals " it was sho-wn that the seal was affixed after the signing, and without the authority of the obligor, and the defense was that the adding of the seal constituted a material alteration, it was held that the surety was estopped from, denying that he did not himself affix the seal.*" But if the seals have not in fact been afiixed before delivery, a recital in the bond that it was sealed by the surety will not operate as an estoppel against showing that it was delivered un- sealed.'" If the instrument was executed by a Corporate name, the obligor is estopped from denying the Corporate capacity."" Where the recital is immaterial to the object and purpose of Bsllayden vs. Cook, 34 Neb. G70; ss Metropolitan Life Ins. Co. vs. 52 N. W. 165 ; Price vs. Scott, 13 Bender, 124 N. Y. 47 ; 26 N. E. 345. Wash. 574 ; 43 Pac. 634. Contra — Town of Barnet vs. Ab- ssphenix Ins. Co. vs. Findley, 59 bott, 53 Vt. 120. Iowa 591 ; 13 N. W. 738; Lionbergcr 8» State vs. Humbird, 54 Md. 327; vs. Krieger, 88 Mo. 160; State Bank Taylor vs. Glaser, 2 Serg. & Kawle vs. Chetwood, 8 N. J. L. 1; Hauen- C02. etein vs. Gillespie, 73 Miss. 742; 19 ooKecn vs. Whittington, 40 Md. Boutb. 673. 4S9. ST Wasliington Co. Ins. Co. vs. Colton, 26 Conn. 42. PKIVATE OBLIGATIONS. 257 the bond, it does not preclude the party signing from showing the truth." If the bond does not speak the truth by reason of fraud, the recitals may be contradicted."" §153. Heasure of damages upon breach of the conditions of a bond. The early construction of a bond to secure a private obligation was that the obligee was entitled to a decree in equity directing the obligor to specifically perform the act set out in the bond, with an alternative order, that upon default of such specific per- formance, he be required to pay the sum named as penalty as liquidated damage^."^ It was, however, enacted by statute in England, that in all ac- tions upon bonds, the jury should assess the damages caused by the breach, and judgment should be rendered for the penal sum named in the bond, but upon payment of the sum assessed as damages, there should be a stay of execution, and the judgment should stand as a security for future breaches."* This Statute was construed to mean that a bond was holden. only for the damages actually sustained, without regard to the amount named as penalty; and it became the rule in equity^ that nothing should be recovered in an action upon a bond,, except the damages shown to have been sustained by a failure-' to perform the collateral act.°° The English Common Law construction of this class of bonds, has always been in force in the United States, and whenever the amount of damages sustained by the obligee is capable of ascertainment, and the parties have not expressly declared the penalty to be a liquidated amount, the rule is„ 01 Reed vs. McCourt, 41 N. Y. 435. »= Hardy vs. Bern, 5 T. R. 540. i 92WheeIer vs. Meyer, C5 Mich. SO; Beckham vs. Drake, 2 H. L. 570,. 54 N. W. 689. Parke, B. (629) : "That statute in 03 Holtham vs. Ryland, 1 Eq. effect malces the bond a security for Cases Abr. 18, pi. 8; Parks vs. Wil- the damages really sustained." Bon, 10 Mod. 515; Hobson vs. Tre- Hurst vs. Jennings, 5 Barn. & vor, 2 P. Wms. 101. Cr. 050; Grey vs. Friar, 15 Q. B. MR and 9 Wm. Ill, c. 11, Sec. 8. Sfll. 258 THE LAW OJ.'- BUKilTYSHIP. that the amount named in the bond is intended as a njere se- curity fixing the limit of liability, and only so muoh of the penalty is recoverable as adequately covers the damages sus- talned.'"' The authorities, both of tliis country and England, now es- tablish the rule, that a penalty inserted in a bond to secure the performance of a collateral object, is accessory only to the main purpose of the transaction, and if the character of the collateral act is such that compensation can be made in damages for its breach, the recovery must be limited to such damages, and if ijc) injiiry is shown, nominal damages only are recoverable."' All damages resulting from the breach of the bond may b» "6 Davis vs. Gillett, 52 N. H. 126; Kawlings vs. Adams, 7 Md. 26; Wright vs. Wright, 49 Mich. C24 ; 14 N. W. 571; Longfellow vs. Mc- Gregor, 61 Minn. 494; 63 N. W. 1032; Hirt vs. Hahn, 61 Mo. 496; iPeople's Bldg. & Loan Assn. vs. .Wroth, 43 N. J. L. 70. City of Aberdeen vs. Honey, 8 Wash. 251; 35 Pac. 1097. Where the bond is to secure the ■paynlent of an annuity, it was held that the damages recoverable upon a breach consist of the payments in default, and not the penal sum named in the bond. Cairnes vs. Knight, 17 O. S. 69. ■ So also where the bond is to secure the payment of premiums upon a policy cf life insurance, the damage for the breach was considered as the amount of the unpaid premiums, and not the value of the policy which lapsed by reason of the non- payment. Scott vs. Phillips, 140 Pa. 51; 21 •Atl. 241. But in Girard vs. Cowperthwait, 21 N. Y. S. 1092, the view was taken that a non-payment of premium re- " suiting in a lapse of the policy 'raises an obligation upon the bond for the full amount of the policy, up to the amount of the stipulated pen- alty named in the bond. 97 Tate vs. Booe, 9 Ind. 13; Raw- lings vs. Adams, 7 Md. 26; Linder vs. Lake, 6 Iowa 164; Fidelity & Deposit Co. vs. Colvin & Jackson, 83 Mo. App. 204; Wallis vs. Keeney, 88 111. 370; Karr vs. Peter, 60 111. App. 209; Shattuck vs. Adams, 136 Mass. 34; Sprague vs. Wells,, 47 Minn. 504; 50 N. W. 535; Turck v3. Marshall Silver Mining Co., 8 Col. 113; 5 Pac. 838. State vs. Atherton, 40 Mo. 209. In this case the principal was in default as an officer of the bank at the time of the execution of his bond. He subsequently falsified his accounts in order to conceal his de- falcation. This was a technical vio- lation of his bond, but of itself no damage to the bank, as the defalca- tion had already been committed and it was held that the obligee could only recover nominal damages. Contra — Taylor vs. Mygatt, 26 Conn. 184. Holding that not even nominal damages could be recovered for breach of a bond where no in- jury is shown. PRIVATE OBLIGATIONS. 2SS recovered, although such damages accrue in part after th» commencement of the action."* If the parties intend the sum named in the bond to be treated as liquidated damages, such ascertained intention will be enforced.*" Whether or not the parties to a written instrument intend the sum named as damages for its violation shall be consid- ered as liquidated or as a penal security, depends upon the terms used to express the agreement, the circumstances sur- rounding the making of the contract, and the subject matter of the contract, all of which are proper elements of proof.^°° Stipulations in building contracts for the payment of a jSxed sum per day for each day of delay beyond the date agreed upon in the contract, amount to liquidated damages, and may be recovered wdthout regard to the actual loss resulting from the breach."' 98 Spear vs. Stacy, 26 Vt. 61. 99 Houghton vs. Pattee, 58 N. H. 326 ; Monmouth Park Assn. vs. Wal- lis Iron Works, 55 N. J. L. 132; 26 Atl. 140. 100 Hosmer vs. True, 19 Barb. 106 March vs. AUabough, 103 Pa. 335 Hurd vs. Dunsmore, 63 N. H. 171 Bigony vs. Tyson, 75 Pa. 157. 101 Downey vs. O'Donnell, 86 111. 49; Louis vs. Brown, 7 Ore. 326; Louisville Water Co. vs. Youngs- town Bridge Co., 16 Ky.. Law Rep. 350; Westerman vs. Means, 12 Pa. 97 ; Curtis vs. Brewer, 17 Pick. 513. In addition to the ground that the form of the bond, and the apparent intent of the parties is to treat the penalty as liquidated in this class of bonds, there is an additional reason for so construing the contract, in that the actual damage resulting from delay in the performance of a contract, in many cases, cannot be ascertained, and in their natiire are BO uncertain as to raise an implica- tion of an intent to treat the dam- age as liquidated. Such has been the basis of many holdings. Collier vs. Betterton, 87 Tex. 440; 29 S. W. 467 ; Reichenbach vs. Sage, 13 Wash. 364; 43 Pae. 354; Malone vs. Philadelphia, 147 Pa. 416; 23 Atl. e'lS; Wolf vs. Des Moines & Ft. Dodge Ry. Co., 64 Iowa 380; 20 N. W. 481; Hennesey vs. Metzger, 152 111. 505; 38 N. E. 1058. Nilson vs. Jonesboro, 57 Ark. 168; 20 S. W. 1093. Where the sum named is greatly disproportionate to the probable loss from a breach, it has been held that on this account, the penalty will not be considered as an agreement to pay liquidated damages. Clements vs. Schuylkill R. R. Co., 132 Pa. 445; 19 Atl. 276; Cochran vs. People's Ry. Co., 113 Mo. 359; 21 S. W. 6; Colwell vs. Lawrence, 38 N. Y. 74. Miller, J.. "It is scarcely to be supposed, that the parties intended to fix an amount so extravagant, and which would be. if allowed as jJ60 THE LAW OF SUJJBTYSHIl'. The penalty of a bond cannot be enlarged by a contempora- neous agreement, and will be limited in any event, to the smn named in the instrument.^"" §154. Same subject — Where the penalty or forfeiture is im- posed by statute. There is an important distinction between bonds intended as an indemnity between private persons, and those transac- tions in which a bond is given in pursuance of a Statute as in- demnity against a violation of a Statute or some policy of the law. In the first case, a breach of the bond involves a violation of a private right, for which compensation in damages can be made ; but when the State is the beneficiary, and the condition of the bond is for a due compliance with the law of the State, dam- ages for the breach cannot be ascertained, and if there is to be any recovery, it must be upon the theory that the sum named in the bond is presumed to be liquidated damages. Where an individual or corporation is granted a franchise ■ or privilege by the Government in pursuance of a Statute which requires the giving of a bond as- a conditioii of the grant^ and to insure the performance of the terms of the grant in a certain way or within a certain time, the penalty of the bond must be considered as a forfeiture inflicted by the sovereign power for a breach of its laws, and the Government not required to prove damages as a basis of recovery. claimed, so grossly disproportionate of proof, and that it would be diffi- to the actual damages, as liquidated cult to show the nature of the in- damages for so trivial an omission jury caused, and the actual damages or delay, and I cannot discover any arising from the delay. such sufficient and satisfactory rea- Contra — Wilcus vs. Kling, 87 111. son for any inference or conclusion. 107; Brennan vs. Clark, 2D Neb. Nor is any such intention to be pre- 385 ; 45 N. W. 472. Bumed, upon the hypothesis that the i»2 Oregon Ry. & Nav. Co. vs. damages resulting from a breach of Swinburne, 22 Ore. 574; 30 Pac. this contract would be of such an 322. uncertain amount as to be incapable PRIVATE OBLIQATIOITS. 261 Thus where the State of Ehode Island by Statute granted to a foreign Corporation the right to exercise the privileges and powers of a Common Carrier within the State, upon the condition that the Railroad would be completed within a cer- tain time, and required a bond to secure the performance of the condition. It was held that the penalty named in the bond was liquidated, and upon a breach, the whole amount would be forfeited to the State, without any proof of actual loss or damage to the State. The Court said : " We are satisfied that the proper solu- tion of the question now under examination is to be found in two principal considerations. The first of these is, that it was not intended by the parties, that the obligation given and ac- cepted should be for an indemnity against any loss or damages expected to be suffered by the State, in the event that the railroad company should fail to build the railroad as required. It is found as a fact that no such loss or damage has jn fact ensued. It is equally plain that none could possibly have arisen. . . . . As to the State itself, the real party to the ar- rangement and contract', it could gain nothing in its political and sovereign character by the construction of the road, it could lose nothing by the default. If it could be supposed as possible that the State had in view the public interests of commerce and trade in the con- struction of the proposed railroad, and meant to provide for loss and damages to them by reason of its failure, the obvious answer is that no computation and assessment of actual dam- ages on that account would be praejieable, leaving as an alter- native that the State, in fixing the penalty of the bond in the Statute, had established its own measure of the public loss. The question of daiiiages and compensation was not, because it could not have been, in contemplation of the parties. . . . The conclusion, in our opinion, can not be resisted that the intention of the parties in the transaction was that, if the railroad should not be built within the time limited, the Cor- 262 THE LAW OF SUEETTi'SUlF. poration should pay the State, absolutely and for its own use, the sum named in the bond." ^°' §155. Interest cs an element in the measure of damages. A surety upon a bond is liable for interest upon the dam- ages ascertained from the date of the demand.'^"* If no de- mand is made, interest may be recovered from the date of serv- ice upon the surety in the action upon the bond.^°' Interest may be recovered as damages even though the in- terest raises the amount recovered beyond the sum named as penalty in the bond.^"" §156. Bonds to induce violation of law are void. Wliere the motive and purpose of the bond is to induce a violation of the law, the transaction is void. This result fol- lows, whether the bond is to secure the performance of a con- 103 Mr. Justice Matthews, in Clark vs. Barnard, 108 U. S. 436, 459 ; 2 S. Ct. 878. See also Indianola vs. Gulf, W. T. & P. B.J., 56 Tex. 594. Where a bond was executed to a city in the sum of $50,000, conditioned upon the construction of a railroad by a certain time, in consideration of a, grant by the city of a right of way through its streets, it was held that recovery could be had of the entire amount of the bond as liquidated damages. Since the city was not able to make proof of any actual damages, such construction must be given as will make the instrument operative. But see City of Aberdeen vs. Honey, 8 Wash. 251; 35 Pac. 1097. 104 Frink vs; Southern Express Co., 82 Ga. 33; 8 S. E. 862; United States vs. Poulson, 30 Fed. Rep. 231; Brighton Bank vs. Smith, 94 Mass. 243 ; Brainard vs. Jones, 18 N. Y. 3.5. .1 It has been held that where a sum is named in an agreement as liqui- dated damages for the breach of the contract, that interest is not recov^ erable. Hoagland vs. Segur, 38 N. J. L. 230. See also United States vs. Broad- head, 127 U. S. 212; 8 S. Ct. 1191. 105 Curtis vs. United States, 100 U. S. 119; United States vs. Poul- son, 30 Fed. Rep. 231; Frink vs. Southern Express Co., 82 Ga. 33; 8 S. B. 862. 108 Beers vs. Shannon, 73 N. Y. 292; Burchfield vs. Haffey, 34 Kan. 42; 7 Pac. 548; Tyson vs. Sander- son, 45 Ala. 364; Carter vs. Thorn, 18 B. Mon. (Ky.) 613; Natchitoches vs. Redmond, 28 La. Ann. 274 ; Spo kane & I. Lumber Co. vs. Loy, 21 Wash. 501; 58 Pac. 672; 60 Pac. 1119; Standard Oil Co. vs. Holmes. 82 111. App. 476. Affirmed, Holmes vs. Standard Oil Co., 183 HI. 70; 55 N. E. 647. PEIVATE OBLIGATIONS. 263 tract -which is prohibited by law, or a contract which is void by reason of an illegal or immoral consideration. Thus a bond given to secure a sum agreed to be paid upon the consideration that the obligee would compound a felony, is void.^" Also where the bond is given to secure purchases made for the use of a State in armed rebellion against the Government,^"* or for tlic purpose of rendering aid to the enemy in time of war in hiring soldiers to join the army of the enemy.^°° Bonds given to promote immoral acts ^^° or fraudulent prac- tices ^^^ or in restraint of marriage,^^^ or in restraint of trade,^^' are void. 107 Cheltenham Fire Brick Co. vs. Cook, 44 Mo. 29; Vanover vs. Thompson, 49 N. C. 485; Buffalo Press Club vs. Greene, 86 Hun 20; 33 N. Y. S. 286. 108 Logan vs. Plummer, 70 N. C. 388. 100 Steele vs. Holt, 75 N. C. 188. 110 Gray vs. Mathias, 5 Ves. Jr. 286; Walker vs. Gregory, 36 Ala. 180; Weinbrinner vs. Weisiber, 3 T. B. Mon. (Ky.) 35. iiiTuxbury vs. Miller, 19 Johns. 311. Where the obligor agreed to pay a sum of money if the obligee would refrain from opposing the dis- charge of the former in bankruptcy, the obligee being a representative of creditors interested in opposing the charge. See also Goodwin vs. Blake, 3 T. B. Mon. (Ky.) 106. Eaton vs. Littlefield, 147 Mass. 122; 16 N. E. 771. In this case the obligee was a creditor of an insol- vent. The bond was conditioned to secure a certain per cent, of the plaintiff's claim, in consideration that the plaintiff would vote for a certain person as assignee in insol- vency, held to be a fraud upon other creditors and to avoid the bond. 112 Woodhouse vs. Shepley, 2 Atk. 536. Lowe vs. Peers, 4 Bur. 2225. The covenant in this bond recites : " I do hereby promise Mrs. Catherine Lowe, that I will not marry with any person beside herself; if I do, I agree to pay to said Catherine Lowe £1,000 within three months next after I shall marry anybody else." Lord Mansfield: "This is only a restraint upon him against marry- ing any one else, besides the plain- tiff; not a reciprocal engagement ' to marry each other.' " As to illegality of contracts in re- straint of marriage see Chalfant vs. Pay ton, 91 Ind. 202. 113 Wiley vs. Baumgardner, 97 Ind. 66 ; Alger vs. Thacher, 19 Pick. 51. Homer vs. Ashford, 3 Bing. 326. Tiest, J.; "The law will not per- mit any one to restrain a person from doing what the public welfare and his own interest requires that he should do. Any deed, therefore, by which a person binds himself not /o employ his talents, his industry r r his capital, in any useful undertalc- ing in the kingdom, would be void." 264 THE LAW OF SUEETYSIIIP. It is held that where a Corporation does business in a State contrary to the Statutes, all its acts are illegal, and that if ofScers and agents of such corporation execute bonds to secure the faithful performance of the business intrusted to them, the Sureties are not liable, inasmuch as the performance of the duties of their employment is illegal.^^* In general all undertakings for indemnity against the conse- quence of doing an illegal act are void.^^° 114 Bank of Newberry vs. Stegall, 41 Miss. 142; Daniels vs. Barney, 22 Ind. 207. Thome vs. Travellers' Ins. Co., 80 Pa. 15. "There can be no doubt of the constitutional power of the legislature to prescribe "the conditions under which a foreign corporation shall trans- act business in this state, and the manner in which its agents shall be qualified, before entering upon their duties. It has often been held that an action founded on a transaction prohibited by statute cannot be maintained, although a penalty be imposed for violating the law, and it be not expressly declared that the contract be void. Mitchell vs. Smith, 1 Binn. 118; Seidenben- der et al. vs. Charles' Adm., 4 S. & E. 151; Holt vs. Green, 23 P. F. Smith 198. In this last ease it was said, the objection may often sound very ill in the mouth of a defendant, but it is not for his sake the objection is allowed, it is founded on general principles of policy which he shall have the advantage of, contrary to the real justice between the parties. That principle of public policy is that no court will lend its aid to a party who grounds his action upon an immoral or upon an illegal act. It is claimed, however, that conceding the rule that an illegal contract will not be enforced by a court, yet when it has been executed by the parties themselves, and the illegal object of it has been accomplished, the money or the thing which was the price of it may be a legal consideration between the parties for a promise express or implied; and the court will not unravel the transaction to discover its origin. We may concede this view of the law to be correct, as an abstract proposition; yet it by no means controls this case. This is not an action against Thorne alone, for money had and received. It is against him and his sureties jointly on their bond, for his alleged breach of duty as a duly appointed agent of the corporation." 115 James vs. Hendree, 34 Ala. 488. Lea vs. Collins, 36 Tenn. 393. In this case the obligor promised in- demnity against the publication of a, libel. But see Jewett Pub. Co. vs. But- ler, 159 Mass. 517; 34 N. E. 1087. A bond of indemnity to induce a breach of trust is void. Moss vs. Cohen, 36 N. Y. S. 265. PEIVATE OBLIGATIONS. 265 §157. Bonds to prevent performance of public duty or to induce acts in violation of public duty are void. A bond given to induce a public officer to refrain from doing that which the law requires him to do, or to induce him to act in violation of his duty, is void, as against public policy. Thus where a Sheriff having received, by virtue of his office, a writ of restitution, is induced by another, and in considera- tion of a. bond of indemnity, to refuse to execute the process. The sureties upon the bond of indemnity are not liable to the Sheriff for loss sustained by him in consequence of his act.^^* A bond to protect an officer from the consequences of dis- obeying the process of the Court, cannot be upheld upon the theory that the officer declines to act in good faith, or because of some uncertainty as to his rights. If an officer holding a writ of restitution is uncertain wheth- er the person in possession is the one named in the writ, or having a writ of execution or attaehnc.ent is uncertain whether the property pointed out belongs to the debtor, he may usually, without peril, withhold service upon the process until indemni- fied by the party in interest But a bond of indemnity to an officer as an inducement to refrain from action, presupposes that the officer would otherwise have obeyed the writ, and that he was not uncertain as to his duty. A bond to a Public Officer as an inducement to perform an act within the scope of his authority, is valid, providing the question whether the act is lawful or unlawful depends upon facts which he has no means of ascertaining, and where he acts in good faith. If an officer holds a writ of execution or attachment, hia duty requires him to levy upon the property of the debtor, and it is unlawful for him to levy upon the property of a third ii« Harrington's Administrator ex rel. vs. Harrington, 41 Mo. App. vs. Crawford, 61 Mo. App. 221. 439; Hardesty vs. Price, 3 Col. 556; See also Blaekett vs. Crissop, 1 BuflFendeau vs. Brooks, 28 Cal. 641; Lord Raym. 278; Cass Co. vs. Beck, Griffin vs. Hasty, 94 N. C. 438;. 76 Iowa 487; 41 N. W. 200; Carroll Morgan vs. Hale, 12 W. Va. 713. vs. Partridge, 12 Mo. App. 583 ; State 266 THB LAW OF SUEETTSHIP. person. Yet the officer cannot be placed in such a position as to require him to determine in advance, and without proof, the conflicting claims of ownership in the property. If when placed in such situation, he accepts a bond of in- demnity in good faith, the bond will be held. It is not against public policy to submit in this way a controverted question to judicial determination.^^' But if he executes the writ with, knowledge that he is committing a trespass, the bond is void.^^' If a trespass or other unlawful act of the officer is a past transaction, the bond of indemnity against the consequences of such act will be valid, as in such a case the bond is not the inducement to the trespass. Thus a Sheriff levied upon and sold merchandise claimed by a third party, and subsequently refused to pay over the pro- ceeds to the execution creditor unless indemnified, the bond was held to be valid."' §158. Discharge of surety upon a bond by payment or acts equivalent to payment. A surety upon a bond is exonerated by any act or agreement between the principal and obligee which operates as payment of the penalty described in the undertaking, and the debt being once satisfied can not be revived against the surety, except in those transactions heretofore considered in which the medium of payment^ or the security substituted is void.^^° It is held that where a principal borrows money with which to pay a judgment creditor, and the latter on receipt of the money, at the request, of the debtor, transfers the judgment to the person from whom the principal borrows, that the sure- ties upon the supersedeas bond are discharged. The judgment 1" Wolfe vs. McClure, 79 111. 713; Collier vs. Windham, 27 Ala. 564; Miller vs. Rhoades, 20 O. S. 291. 494; Mays vs. Joseph, 34 O. S. 22; ii» Westervelt vs. Frost, 1 Abb. Stark vs. Raney, 18 Cal. 622; Forni- Pr. (N. Y.) 74. qnet vs. Tegarden, 24 Miss. 96; Mc- See also GrifiSths vs. Hardenbergh, Cartney vs. Shepard, 21 Mo. 573; 41 N. Y. 464. Foster vs. Clark, 19 Pick. 329. 120 Ante Sec. 97. "8 Morgan vs. Hale, 12 W. Va. PRIVATE OBLIGATIONS. 267. creditor by dealing direct with the third party, might confer upon him, by assignment, title to the security; but payment being made by the hand of the debtor, is a technical satisfaction of the judgment/'''' Where a debt secured by bond has been paid by an applica- tion of funds in the hands of the obligee, the parties can not thereafter by agreement apply the payment to some other debt, and revive the obligation under the bond/^^ Where the principal at the maturity of the debt executes his note to the obligee, it will not release the bond, unless accepted as payment/^' Where it is shown that the obligee agreed to accept the notes of the principal in payment, the surety will be released whether the notes are paid or not/^* A bond given to secure a note held by a creditor, will be valid as security for a renewal of the note. In such case the bond secures the debt, and the satisfaction of the note by renewal is not deemed a payment.^''' The possession of a bond by a surety raises a presumption of payment. '^'"' §159. Statutes of limitations as a defense to sureties upon a bond. The Statutes of various States provide for a period of limi- tation upon the right to bring an action upon a bond. The usual form of the Statute is that the action must be brought within the limitation after the " cause of action ac- 121 Burnet vs. Courts, 5 Har. & 125 Shrewsbury Savings Institu- John. (Md.) 78. tion's Appeal, 94 Pa. 309. 122 Gibson vs. Kix, 32 Vt. 824 ; 126 Carroll vs. Bowie, 7 Gill Woodman vs. Mooring, 3 Dev. Law (Md.) 34. (N. C.) 237. 127 The Statute in New Jersey 123 Shumway vs. Reed, 34 Me. reads: " No action shall be brought .■160 ; Price vs. Barnes, 7 Ind. App. 1. upon any bond given to the Pres- 124 Smith vr. Jackson, 97 Iowa ident, Directors and company of any 112; 66 N. W. 80; Morris Canal & Bank, or to any Corporation, by any Banking Co. vs. Van Vorst, 21 N. officer of such bank or cornoration, J. Ij. 100. with conditions for his ffood behavior. 268 THE LAW OF SUEETYSHIP. The Statutes do not undertake to define when the cause of action accrues, and judicial construction of this important ele- ment of the right to invoke the Statute, has not heen uniform in this country. For the most part it is assumed that the limitation com- mences to run from the date the obligor is liable to a suit, but subject to the modification that the law will not permit tiie Statute to be used to protect fraud. Where the principal violates his trust by defalcations, he and his surety are liable to an action from and after the date of the defalcation, and within the meaning of the Statute, the cause of action then " accrues.^' It, however, often occurs that the obligee has no knowledge of the default at the time it oc- curs, and in those cases where the principal fraudulently con- ceals the cause of action for a period beyond the limitation of the Statute, three questions have arisen, relating to the defense which the Statute affords. (a) Will the fraudulent concealment of the default by the principal, prevent the operation of the Statute as against the principal himself ? (b) Will the surety who has been guilty of fraudulent con- cealment be discharged by the Statute, even though the princi- pal is held ? (c) To what extent is diligence required of the obligee in discovering default? It has been urged that since the Statute in plain terms fixes the time within which action shall be brought, and without qual- ification dates the limitation from the time the cause of action accrues, that it is not vnthin the province of the Courts to repeal the Statute by an equitable construction in those cases where the diligence in concealing fraud, is greater than the diligence of those interested in its discoverv.^^' or for the faithful discharge of the In Ohio within fifteen years "after duties of his station, or touching the cause of action accrues." the execution of his office, against 128 Troup vs. Smith's Executors, cither principal or sureties, after 20 Johns. 33, Spencer, C. J. : " The the rxpiratiori of two years from the inquiry is, when did the plaintiff's accruing of the cause of action." cause of action accrue? Most cer- PEIVATE OBLIGATIONS. 269 The contrary view, and the one which receives the support of the weight of authority, is that the Statutes of Limitation must be expounded reasonably, so as to suppress and not aug- ment the evils they are intended to cure. That the purpose of Statutes of Limitation is to suppress fraud by preventing the assertion of claims after such lapse of time that the truth can not be well ascertained; that the Statute should not be so construed as to encourage fraud and deceit, so that under the plea of the Statute, the party can take advantage of his own wrong doing.^^" The further question arises whether the surety will be de- prived of the literal application of the Statutes in his behaK on account of the fraudulent concealment of the principal, to which he was not a party. tainly when the fraud was consum- mated. . . . The fact that the plaintiff did not 'discover the imposition practised upon him, is entirely distinct from the existence of such fraud and imposition. If, then, the plaintiff's cause of action . accrued upon the consummation of the fraud by the testator, and not at the time plaintiff discovered it, the Statute interposes as a, protec- tion, unless the action has been com- menced and sued within six years next after the cause of action ac- crued. " But it is asserted that fraud com- mitted under such circumstances as to conceal the knowledge of a fact, and thus preventing a plaintiff from asserting his rights within the lim- ited period, may be replied, and is an answer to the plea of the Statute of Limitations, if the action or suit be brought within six years after the discovery of the fraud But Courts of Law are expressly hound by the Statute; it relates to specified actions; and it declares that such actions shall be com- menced and sued within six years next after the cause of such action accrued, and not after; thus, not only affirmatively declaring within what time these actions are to be brought, but inhibiting their being brought after that period. I know of no dispensing power which courts of law possess, arising from any cause whatever." 120 Bree vs. Holbech, 2 Doug. 655; Reynolds vs. Hennessy, 17 R. I. 169; 20 Atl. 307; 23 Atl. 639. First Mass. Turnpike Co. vs. Field, 3 Mass. 201, Parsons, C. J.: " The delay of bringing the suit is owing to the fraud of the defendant, and the cause of action against him ought not to be considered as having accrued, until the plaintiff could ob- tain the knowledge that he had a cause of action. If this know'edge is fraudulently concealed from him by the defendant, we should violate a sound rule of law, if we permitted the defendant to avail himself of his own fraud." Bradford vs. McCor- mick, 71 Iowa 129; 32 N. W. 93. '270 THE LAW OF SUEETTSHIP. While the principal who is seeking to use the Statutes to cover a fraudulent act may properly be denied the frateetion of the Statutes, the surety who is innocent of fraud must be held, if at all, upon the theory that the contract of Kuretysbip makes his liability co-extensive with the principal, without regard to the particular rea^ns whereby the liabiUly of the principal is established. A surety is bound by the fraudulent conduct of hie, principal, and although without fraud on his own part, he mast answer under his contract for such default of his principal, which is not barred by the Statute."" The obligee in the bond does not owe a duty to thd surety of watching the affairs of the principal for the purpose of setting in operation the Statute of Limitations against himself. The obligee owes a duty of good faith; he cannot conceal that which he knows from the surety, nor be blind to facts which from his position he is bound to know, but he is not chargeable with negligence in failing to make investigations, the result of which would be material for the surety to know.^^^ The cause of action upon a bond of indemnity to " save harmless from damages " does not arise until the ohligee has suffered some damages. The undertaking is not to acquit the obligee from all liability for damages, but is intended to mere- ly indemnify against actual damages, and the Statute of Limi- tations will begin to run only when the obligee has paid the damages.^^^ 130 Sparks vs. Farmers' Bank, 3 the sureties who covenanted that Del. Ch. 275. their principal should ' well and 131 Graves vs. Lebanon National truly perform the duties ' of his Bank, 10 Bush (Ky.) 28. "The di- position. . . . Their covenant is rectors may have been negligent in unconditional, and no failure of the discharge of their duties, and duty upon the part of the directors this negligence may have enabled of the association, short of actual M. for the time to misappropriate fraud or bad faith, can be deemed the funds of the bank, and to con- sufficient to exonerate them from eeal its true condition by false re- its performance." Wayne vs. Com- ports made to the comptroller of mercial Nat. Bank, 52 Pa. 343. the currency and by false entries isa Campbell vs. Rotering, 42 upon the books of the association. Minn. 115; 43 N. W. 795. But this nealiEjence pannot avail eiti VATE OBLIGATIONS. '2ii ,§160. As to who are proper parties in an action upon a bond. Where an instrument is under seal no person can sue or be sued upon its covenants except those who are named as parties therein.^^" And so a bond under seal, in which . the obligees are de- scribed as " agents," without disclosing for whom the parties are so acting, cannot be enforced by the principal.^'* If the bond is not under seal, such as those instruments originating in States where private seals have been abolished, or where the distinction between sealed and unsealed instru- ments has been removed by Statute, the person having a beneficial interest in the bond, may maintain an action upon it, although not a party to the instrument. 133 Beckham vs. Drake, 9 M. & W. 79; Townsend vs. Hubbard, 4 Hill (N. Y.) 351; Briggs vs. Partridge, 64 N. Y. 357. Even though the instrument on its face reads that the party signing and sealing is an agent, it cannot be enforced by the principal. Kier- sted vs. Orange & Alexandria E. R. Co., 60 N. Y. 343 ; Sehaef er vs. Hen- kel, 75 N. Y. 378; Huntington vs. Knox, 7 Gush. 374; Andrews vs. Estes, 11 Me. 267. Follansbee vs. Johnson, 28 Minn. 311; 9 N. W. 882. The distinction in this respect, between contracts under seal and simple contracts, has since been abandoned by the Minne- sota Court as being merely technical and without merit. Jefferson vs. Aseh, 53 Minn. 446; 55 N. W. 604. Miller vs. Kingsbury, 28 111. App. 532; Moore vs. House, 64 111. 162. A Statute in Illinois now de- clares that contracts under seal may be sued upon as if unsealed. Harms vs. McCormick, 30 111. App. 125; Dean vs. Walker, 107 HI. 540. See also McDowell _ vs. Laev, 35 Wis. 171; Houghton vs. Milburn, 54 Wis. 554; 12 N. W. 23. Wherein no distinction is made between seal- ed and unsealed instruments in re- spect to the enforcement for the benefit of third parties. The pre- ponderance of authority, however, maintains the view stated in the text. Willard vs. Wood, 135 U. S. 309; 10 S. Ct. 831; Pettee vs. Peppard, 120 Mass. 522; Robbins vs. Ayres, 10 Mo. 539; Crowell vs. Hospital of St. Barnabas, 27 N. J. Eq. 050; Fairchild vs. North Eastern Mut. Life Assn., 51 Vt. 013. i3*nenricus vs. Englert, 137 N. Y. 488 ; 33 N. E. 550. See also Packard vs. Brewster, 59 Me. 405 ; Farmington vs. Hobart, 74 Me. 416. But see Emmitt vs. Brophy, 42 0. S. 82. Where it was considered immaterial whether the bond was under seal or not, and that in either event a, third person, though not named in the instrument, might maintain the action in his own name. ,272 THE LAW OF SUEETTSHIP. The rule is, however, suhjeet to the qualification that there must be an intention of benefiting the third party, to whom the promisee is under a legal obligation to do that which is called for in the bond."° A number of the States have code provisions, enabling the real party in interest to maintain an action upon the bond in his own name, although not named as a party in the instru- ment."" In England, the doctrine that a party for whose benefit a contract is made may enforce it in his own name, does not pre- vail, ^^' except where the obligor is shown to have received money for the use of the third party, in which case, the latter may sue for it.^^* If a bond runs to one in a representative capacity, such as Administrator or Guardian, it is held that the obligee may bring tlie action in his individual capacity.^^' Or an action may be brought by an officer in his official capacity/*" If the obligee is deceased, his administrator may sue on the bond/*^ 135 Jefferson vs. Aseh, 53 Minn. 446; £5 N. W. 034; Carnahan vs. Tousey, 93 Ind. COl; Leake vs. Ball, 116 Ind. 214; 17 N. E. Dl8; Piano Mfg. Co. vs. Burrows, 40 Kan. 361; 19 Pac. 809; Mumper vs. Kelley, 43 Kan. 250; 23 Pac. 558; N. Y. Life Ins. Co. vs. Hamlin, 100 Wis. 17; 75 N. W. 421. As to bonds given to secure build- inj contracts, with covenants to pay labor and material claims, see Ante Sec. liO. 1=0 Alabama Civil Code, Sec. 28: " Actions on promissory notes; bonds, or other contracts, express or implied, for the payment of money, must be prosecuted in the name of the party really interested, whether he has the legal title or not." In California, the Civil Code provides ( See. 1559 ) , that " a con- tract, made expressly for the bene- fit of a third person, may be en- forced by him at any time before the parties thereto rescind it." is'Tweddle vs. Atkinson, 1 Best. & Sm. 393; Price vs. Easton, 4 Barn. & Ad. 433; Gandy vs. Gandy, L. R., 30 Ch. Div. 57 ; In re Rother- ham Alum & Chem. Co., L. R., 25 Ch. Div. 103. 1=8 Lilly vs. Hays, 5 Ad. & Ell. 548. i=0Waddell vs. Moore, 24 N. C. 261; Ayres vs. Toland, 7 Har. & John. (Md.) 3. 1*0 Chancellor vs. Hoxsey, 41 N. J. L. 217. 141 Young, Admr., vs. Patterson, 165 Pa. 423; 30 Atl. 1011. PRIVATE OBLIGATIONS. 273' §161. Joinder of parties plaintiff. All persons for whose benefit a contract is made must join ia an action for the breach of it. A bond running to two or more obligees, does not constitute a contract with one of them separately, and except when one or more of the obligees refuses to join in the action, or for other good reason, such as in some jurisdictions, the death of one joint obligee, no action can be maintained unless all are made plaintiffs."" Where several obligees are joined in one bond, but to secure distinct and separate rights, their remedy is by separate action. Thus a principal, representing four Insurance Companies, executed a bond in which they were all named as obligees, conditioned that the principal would faithfully perform his duties as agent toward each Company respectively. It was considered that the general covenant was made with each Com- pany separately, and that a joint action could not be main- tained."' Also where distinct obligations are assumed toward one joint obligee which did not run to the other, each obligee can have a separate action for the breach which affects his especial right^^*' Even though the conditions of the bond may require a differ- .ent relief on the part of the several obligees, the transactions may nevertheless be joint.^*^ 142 Biadburne vs. Botfield, 14 M. i*3 Germania Fire Ins. Co. V3_ 6 W. 559 ; Phillips vs. Poole, 96 Ga. Hawks, 55 Ga. 674. 515; 23 S. E. 504; Burns vs. Fol- See also Hees vs. Nellis, 65 Barb- lansbce, 20 111. App. 41; Sims vs. 440. Harris, 47 Ky. 55 ; Wallis vs. Dilly, i** Sprague vs. Wells, 47 Minn.. 7 Md. 237 ; Dana Executor vs. Park- 504 ; 50 N. W. 535 ; White vs. Bow- er, 23 Fed. Rep. 263; Philips vs. man, 78 Tenn. 55; Renkert vs. EI- Singer Mfg. Co., 88 111. 305. liott, 79 Tenn. 235. In Massachusetts, where one of But see McMahon vs. Webb, 52 several joint obligees is deceased, Miss. 424. the survivor may maintain a sepa- "s Lillard vs. Lillard, 44 Ky. 340r; rate action on the bond. Donnell vs. Haughton vs. Bayley, 31 N. C. 337, Manson, 109 Mass. 576. 274 THE LAW OF SUEETYSIIIP. §162. Joinder of parties defendant. If a bond is joint or several, any one or more of the obligors may be joined as defendants in the same action.'^*" In Massachusetts it is held that the plaintiff may bring his action against one or all of the obligors jointly and severally liable but not against an intermediate number.^*^ Where the obligors are severally liable they cannot be joined in one action,^*^ except where the cede so provides.^*' For the most part the codes of the States authorize such joinder of parties as will give effectual relief without requiring a multi- plicity of actions, as where one of two joint obligors is deceased, the survivor may generally be sued jointly with the Adminis- trator of the deceased obligor, although one is charged de bonis propriis and the other de bonis testatorisA^" Where successive bonds are given to secure the same liability, all the sureties upon the several bonds may be joined in one action, if there is a common liability.^^^ Where the bond of an employee recites that the surety will reimburse the obligee for loss sustained by the defalcation of 146 state vs. Bennett, 24 Ind. 383 ; J. : " As the record stands, the sure- McKee vs. Griffin, CO Ala. 427 ; Poul- lies on the bond executed in Sep- lain vs. Brown, 80 Ga. 27; 5 S. ii. tember, 1884, are liable, unless the 107. second bond was executed as a sub- ■ 1*'' Leonard vs. Speidel, 104 Mass. stitute for and in lieu of the first 359. bond; and the sureties on the bond 1*8 State vs. Powers, 52 Miss. 198. executed in November, 1886, are 1*9 The Ohio Code provides : " One also liable, unless the defalcation Or or more of the persons severally shortage of Ponder occurred prior to liable on an instrument may be in- tne date of their bond. Neither of eluded in the same action thereon." these facts appear. But on the con- Sec. 5009. trary, it is distinctly stated that 150 Lawrence vs. Doolan, 68 Cal. the second bond was executed as 309 ; 5 Pae. 484 ; 9 Pac. 159 ; Green ' additional security,' and it does vs. Conrad, 114 Mo. 651; 21 S. W. appear that the shortage or defalca- 8C9. tion transpired subsequent to the Contra — Metz vs. The People, execution of the second bond. These Col. App. 57; 40 Pac. 51; State vs. conditions present a ease of a corn- Banks, 48 Md. 513. mon liability on the part of all of 151 Singer Mfg. Co. vs. Ponder, the sureties relating to the same sub- 82 Tex. 653: 18 S. W. 152, Bohbij, ject matter, and where the right of PEIVATE OBLIGATIONS. 2Y5 the employee, also that the employee will indemnify the surety, against loss on the hond, such instrument is not the joint obli- gation of the principal and surety, and the obligee can main- tain an action only against the surety.^^" . recovery existed as against all of them, because the contract entered into by all of the sureties was for the same purpose, and had reference to_ the same matter, but was merely entered into at different times. " Under the averments of the peti- tion the suit could have been main- tained separately against the sure- ties on these bonds for the same de- falcation, and if so, no reason is perceived why, upon the principle of avoiding many suits, this could not be maintained." Powell vs. Powell, 48 Cal. 235. 152 American Bonding & Trust Co. vs. Milwaukee Harvester Co., 91 Md. 733; 48 Atl. 72. Sec. 163. See. 164. See. 165. See. 166. See. 167. Sec. 168. CHAPTER VII. OFFICIAL BONDS. Who Are Public OflRcers. The Duty of a Public Officer to Gfive » Bond Arises From Statute. Bonds of Deputies. Qualification and Approval of Sureties. The Signing of the Bond by the Principal. Liability of Sureties as AflFeeted by Failure to Deliver or Fur- nish the Bond Within the Time Required by Law. Sec. 169. Sureties upon Ofiicial Bonds Discharged by Alterations to Which They do not Consent. Sec. 170. Alteration in the Duties of the Principal by Amendment to the Law. See. 171. Extension of Tenure of Office by Legislative Act. Sec. 172. Special Bonds Given by Officers Who have also given General Bonds. See. 173. Bonds of Public Officers not Retroactive and cover only the period named in the Bond. Sec. 174. Same Subject — Where the Wrongful Act was partly in one and partly in another Term. Sec. 175. Second Bond given in the same term Cumulative. Sec. 176. Liability of Surety for the Negligence or Error in Judgment of a Public Officer. Sec. 177. Liability of Sureties for Failure of Public Officer to account for the use of Public Funds. Sec. 178. Sureties not Liable for Defaults of Principal in not performing his Contracts with persons dealing with him in his Official Capacity. Sec. 179. Sureties upon Official Bonds are not released by the Negligence or Misconduct of other Officials. Sec. 180. Sureties not Liable for Failure to Account for Money Received by the Principal outside the Scope of his Office. Sec. 181. Liability upon Bond of S^ierifF or Constable for Trespass and other wrongs committed Colore Officii. Sec. 182. View that Sureties are not Liable for Wrongs of Sheriff or Con- stable Committed Colore Officii. Sec. 183. Liability for Loss of Public Money by Failure of the Bank used as Public Depository. 276 OT-KICIAL BONDS. 277 Sec. 184. Liability for Loss of Public Money by Theft or Robbery. Sec. 185. Liability against Judicial Officers Acting without Jurisdiction. See. 186. Liability of Judicial Officers for Ministerial Acts. Sec. 187. Liability of Principal for Acts of his Deputy. Sec. 188. Liability on Bond of a Notary Public. Sec. 189. Defenses in Actions upon Bonds of Public Officers. Sec. 190. Presumption that Official Duty has been Performed. Sec. 191. Evidence Against Sureties on Official Bonds. Sec. 192. Same Subject — Judgment Against Principal as Evidence Against the Surety. Sec. 193. Same Subject — View that Judgment against the Principal is Prima Facie Evidence against the Surety. Sec. 194. Same Subject — View that Judgment against the Principal is Conclusive against the Surety. Sec. 195. Limitations upon Actions against Sureties on Official Bonds. §163. Who are public officers. A public office is a franchise conferred by the Government of the State or Municipality, either by election or appointment, carrying with it the right and duty of exercising a public func- tion. It differs from employment or agency in that the latter arise out of contract, in which the rights of the parties are definite and specific, and the duty and tenure of the employment are fixed. Whereas the terms of the franchise of a public office are imposed by law, sometimes by the general Statute creating the office, and sometimes by the will of other public officers to whom the law has delegated the power. There are no contracting parties to an office. A person ac- cepts a public office without any covenants express or implied between himself and the State as to the character of his duties, and without any binding stipulations as to whether the duties thus conferred by law upon his office, shall be continued as the .duties of his position during the tenure of the office. The dom- inant features of an office are not found in contract relations.' 1 Nichols vs. MacLean, 101 N. Y. property in the same sense that cat- 528; 5 N. E. 347, Andrews, J.: tie or land are the property of the " The right to hold an office and to owner. It is, therefore, the aet- receive the emoluments belonging to tied doctrine that an officer acquires it does not grow out of any con- no vested right to have an office tract with the State, nor is an office continued during the time for which 278 THE LAW OF SUEETYSHIP. The Dartmouth College case ^ points out the vital distinc- tion Between an office and a contract, in holding that all persons having contractual relations with the Government are protected until by their own consent or by their own breach the contract is abrogated. But a person in an official relation is subject to the will of the sovereign, both as to the duties required of him, and the tenure of the office. It does not necessarily follow that- all public service ren- dered according to the requirements of law, to which a person ' is appointed under the provisions of a public Statute, constitutes such person a public officer. His relations to the State may be contractual, notwithstanding he is in public service and per- forming duties defined by law. Thus where the Legislature authorized a Geological and Agricultural survey, and by the act provided for the appoint- ment of three Commissioners, whose duties were specifically defined in the Statute, and the Governor of the State was re- he waa elected or appointed, nor to have the compensation remain un- changed. The legislature may abol- ish an ofBce during the term of an incumbent, or diminish the salary or change the mode of oompensa- tiop, subject only to constitutional restrictions." See also Beebe vs. Robinson, 52 Ala. 66; In re Bulger, 45 Cal. 553; State vs. Bell, 116 Ind. 1 ; 18 N. E. 263; Crook vs. People, 106 111. 237; Augusta vs. Sweeney, 44 Ga. 463; Bryan vs. Cattell, 15 la. 538 ; Evans vs. Populus, 22 La. Ann. 121; Prince vs. Skillin, 71 Me. 361; Hyde vs. The State, 52 Miss. 665; Love vs. Jersey City, 40 N. J. L. 456; Bunting vs. Gales, 77 N. C. 283; Kilgore vs. Magcc. 85 Pa. 401. That the franchise of a. public office is not contractual is further, shown by the fact that the officer may at any time put an end to the relation by resignation, and with-- out the consent of the sovereign. Hoboken vs. Gear, 27 N. J. L. 265; United States vs. Edwards, 1 Mc- Lean 467. But see Eegina vs. Lane, 2 Ld. Raym. 1304; Edwards vs. United States, 103 U. S. 47L 2 Trustees of Dartmouth College vs. Woodward, 4 Wheat. 518, 694, Story, J.: "It is admitted, that the State legislatures have power to enlarge, repeal and limit the au- thorities of public officers, in their official capacity, in all cases, where the constitutions of the States re- spectively do not prohibit them; and this, among others, for the very' reason, that there is no express or implied contract, that they shall al- ways, during their continuance in office, exercise such authorities;, they are to exercise them only dur- ing the good pleasure of the legisla- ture." OFFICIAL BONDS. 279 quired to enter iato a contract with the Commissioners for six years, for the compensation niamed in the Statute, the relations of the Commissioners to the State were deemed contractual and not official, and a subsequent repeal of the Statute providing for the appointment was held not to affect the tenure of their employment.' These essential distinctions between contractual and official 3 Hall vs. Wisconsin, 103 U. S. 5, Swayne, J.: "In a sound view of the subject it seems to us that the legal position of the plaintiff in error was not materially different from that of parties who, pursuant to law, enter into stipulations limit- ed in point of time, with a State, for the erection, alteration, or re- pair, of public buildings, or to sup- ply the officer or employees who oc- cupy them with fuel, light, station- ery, and other things necessary for the public service. The same rea- soning is applicable to the countless employees in the same way, under the national government. It would be a novel and startling doctrine to all these classes of persons that the government might discard them at pleasure, because their respect- ive employments were public offices, and hence without protection of contract rights." See United States vs. Hartwell, 6 Wall. 385. Where the questions in- volved a, clerk in the office of the Assistant Treasurer of the United States, whose position as such clerk was provided for by Statute and the salary fixed by Congress. The ma- jority of the Court considered that he was an officer. Sicayne, J.: "He was a public officer. The General Appropriation Act of July 23d, 1866, authorized the assistant treasurer to appoint specified number of clerks, who were to receive, respectively, the salaries thereby prescribed. The in- dictment avers the appointment of the defendant in the manner pro- vided in the act. " An office is a public station, or employment, conferred by the ap- pointment of government. The term embraces the ideas of tenure, dura- tion, emolument, and duties. " The employment of the defend- ant was in the public service of the United States. He was appointed pursuant to law, and his compensa- tion was fixed by law. Vacating the office of his superior would not have affected the tenure of his place. His duties were continuing and perma- nent, not occasional or temporary. They were to be such as his superior in office should prescribe. " A government office is different from a government contract. The latter from its nature is necessarily limited in its duration and specific in its objects. The terms agreed upon define the rights and obliga- tions of both parties, and neither may depart from them without the assent of the other." Shelby vs. Al- corn, 36 Miss. 289. " And we apprehend that it may be stated as universally true, that where an employment or duty is » continuing one, which is defined by rules prescribed by law and not by contract, such charge" or employment is an office." 280 THE LAW OF SURETYSHIP. relations furnish the basis of important differences between the contract rights of those who undertake to answer for the de- faults of private and public obligations. Sureties upon the bonds of public oflBcers must be held to contract with reference to the special control which the sover- eign reserves in granting such office. Defenses based upon the alteration of the contract between principal and obligee, and other defenses growing out of defects in a contract relation to which the suretyship is collateral, can- not generally be interposed where the relation of the principal ■to the obligee is official. An official oath is the medium by whicb the officer is bound to his employment, and is a distinguishing characteristic of an office.^ ■^ Trainor vs. Board of Auditors, sn Mich. 162; 50 N. W. 809. McCornick vs. Thatcher, 8 Utah 294; 30 Pac. 91. The trustees of the Utah Agricultural College, whose appointment is derived from the Governor, whose duty and compen- sation are fixed by Statute, and who are required to take an official oath, are considered public officers. State vs. Wilson, 29 0. S. 347. The Constitution of Ohio provides that " no person shall be elected or appointed to any office in this State unless he possesses the qualifica- tions of an elector." The defendant in this case was a resident and elec- tor of Indiana, and was appointed as medical superintendent of a Hos- pital for the Insane. The question involved was his eligibility under ihe Constitution. The Court said: " Let us look at some of the indicia of his being an officer. He is ap- pointed for a, definite term. He imist take the oath prescribed by tju! Constitution. He must reside 5ti the institution that he suoerin- tei..Is. His duties are prescribed by law and not by contract. He is clothed with the right and corre- spondent duty to execute a public trust." Worthy vs. Barrett, 63 N. C. 199; Collins vs. Mayor, 3 Hun 680. " We see no reason to doubt that the plaintiff was an officer. His duties were those pertaining to an office. He was required by ordi- nance to take, and did take, the offi- cial oath; and he was amenable to all the penalties of statute for neg- lect or violation of official duties. Probably the true test to distin- guish officers from simple servants or employees, is the obligation to take the oath prescribed by law." Lindsey vs. Attorney General, 33 Miss. 508. The omission by the legislature to prescribe an oath of office as a condition of the franchise of an office will not change what would otherwise be an official position to non-official. Such lack of require- ment for oath of office, while consti- tuting legislative oversiarht and neg- lect, does not of itself affect the OFFICIAL BONDS. 281 A further indicia of public office is where the duties pre- scribed by the Statute are those which belong to the position irrespective of the person who perforins the service/ A Notary Public is a public officer." An Attorney at Law, l)v reason of the public character of his service in the admin- istration of justice, and the oath he is required to take, has been deemed a public officer.' It has been said that the test of public office is that it is created by the law-making power, and is a part of the admin- istration of government,* and that the term public office includes all persons appointed or elected to discharge a public duty.* §164. The duty of a public officer to give a bond arises from statute. There is no common law requirement that a public officer shall give a bond as a condition of entering upon the duties of his office. 74 17 character and status of the employ- ment. State vs. Kennon, 7 0. S. 659; Commissioners vs. Evans, Pa. 124. B State vs. May, 106 Mo. 488; S. W. 660. » People vs. Eathbone, 145 N. Y. 434; 40 N. E. 395. The question in- volved in this case is whether a Notary Public came within the pro- hibition of the Constitution of the State of New York, providing that public officers shall not use a pass upon a, railway. The Court said: " The People have plainly declared in precise and unambiguous words that no public officer shall receive or make use of a pass, and within the territorial limits of the State, that command is enforcible, and it must be obeyed by every person who holds an office, which, like the one before us, is public in its relation to the body politic, by reason of the mode of its creation and of the nowers conferred and functions de- fned by law." State vs. Clarke, 21 Nev. 333; 31 Pac. 545. In Nevada the Con- stitution provides: "No person holding any lucrative office under the Government of the United States or any other power, shall be eligible to any civil' office of profit under this State." And it was held that a Federal officeholder was not eligible for appointment as notary public by reason of this constitu- tional limitation. Governor vs. Gordan, 15 Ala. 72. 7 White's Case, 6 Mod. 18 Walmesley vs. Booth, Barn. Ch, 478; In re Cooper, 22 N. Y. 67 Waters vs. Whittemore, 22 Barb 593 ; Thomas vs. Steele, 22 Wis. 207 But see Robinson's Case, 131 Mass. 376; Cohen vs. Wright, 22 Cal. 293; Ex parte Garland, 4 Wall. 333. 8. Smith vs. Moore, 90 Ind. 294. Henley vs. Mayor of Lyme, 5 Bing. 91; Roland vs. Mayor, 83 N. Y. 372. 582 THE I.AW OF SUEETYSIIIP. The Legislature, except where restrained by the Constitu- tional provisions/" fixes by statute the terms upon which an ofiice may be granted, and in nearly all cases has required that the officer give a bond, and either fixes the amount of the pen- alty, and other conditions, such as the time within which it must be given, and the number and qualifications of the sure- ties, or delegates to some public officer the function of deter- mining the conditions under which a bond will be accepted. ^^ A public officer is liable for a breach of his official duties,' and such liability may be enforced even though he has not given a bond. The remedy upon his bond is cumulative, and the officer may be sued for his misconduct without joining his sureties. Statutory provisions requiring bonds have therefore furnished additional safety and protection to the people with- out abridging their rights under the common law.^^ Although a bond does not conform to the requirements of the statute, if accepted and the officer enters upon the duties of his office, the undertaking will be binding. Thus where the statute fixes the amount of the penalty, and the bond is given for a larger sum, it will be valid at least to the amount of the required penalty.^' Or where the statute re^ quires several sureties, and requires each to make himself liable for the entire penalty, and the bond is accepted with stipulation that each surety is to be liable for only a pro rata part of the' penalty.^ It is not necessary that the conditions of the bond be recited in the exact language of the statute. Words which express the^ substance or intent of the statute will be sufficient compliance with the law. 10 The Federal Constitution, and sum as shall be fixed by the county the Constitutions of the States, fix commissioners. the tenure of office in many cases, 12 Cole Co. vs. Dallmeyer, 101 Mo. also define the qualifications of of- 57; 13 S. W. 687. flceholders, but do not require offi- i3 Graham vs. State, 60 Ind. SS6; eial bonds. United States vs. Mynderse, 11 11 In Ohio the county treasurer is Blatch. 1. required to give a bond in such 1* State vs. Polk, 14 Lea (Tenn.) 1. OFFICIAX BONDS. 283 Where the statute required a Justice of the Peace to enter into a bond " conditioned that he will well and truly do and per- form every ministerial act that is enjoined upon him by law " it was considered a substantial compliance to recite in the bond that the Justice "shall well and truly discharge the duties of Justice of the Peace according to law," although this language, in terms, apparently included the judicial as well as the minis- terial acts of the Justice.^' The giving of a joint bond, when the statute requires it to be joint and several, was held to bind the sureties.^" Where the statute requires the bond to be executed under seal, the omission of the seal renders' it a nullity as a specialty, but a public officer and his sureties cannot escape liability on such an instrument, where the officer fills the position and commits de- fault while exercising his official duty. The emoluments and benefit derived by the officer from his franchise are sufficient consideration to support the bond as a simple contract.^' Although there is no statutory requirement for a bond, yet where a public officer voluntarily tenders a bond which is ac- cepted, the sureties will be liable. Such contract will have all the force of an undertaking to secure a private obligation.^^ IS Place vs. Taylor, 22 0. S. 317. i' United States vs. Linn, 15 Pet- See also People vs. Love, 19 Cal. ers 290. 676. The Statute required the bond See also Rutland vs. Paige, 24 to run to the people of the State of Vt. 181; Boothbay vs. Giles, 68 Mc. California, and the bond instead 160; United States vs. Bradley, 10 was executed " to the State of Call- Peters 343 ; Sooy vs. The State, 38 fornia." N. J. L. 324. See also Huffman vs. Koppelkom, is State vs. Harney, 57 Miss. 863 ; 8 Neb. 344. Where the bond was United States vs. Mason, 2 Bond. given to the State, though required 183; Bank vs. Cresson, 12 Serg. & by Statute to run to the county. R. (Pa.) 306; United States vs. See also Jessup vs. United States,' Rogers, 28 Fed. Rep. 607; Hobcken 106 U. S. 147; 1 S. Ct. 74; Suther- vs. Harrison, 30 N. J. L. 73; Sooy land vs. Carr, 85 N. Y. 105; Jones vs. The State, 38 N. J. L. 324. vs. Newman, 36 Hun 634. Contra — State vs. Heisey, 56 la. 18 Tevjs vs. Randell, 6 Cal. 632 ; 404 ; 9 N. W. 327. Perkins Co. vs. Miller, 55 Neb. 141; 75 N. Wl 577. ^: 284 THE LAW OF SUEETYSHIP. It has been held that a bond which is authorized by an un- constitutional statute is invalid/" §165. Bonds of deputies. A deputy is one who acts for another, and the acts of a deputy of a public officer are necessarily official, in all cases where the law authorizes the appointment of deputies.^" A deputy is to be distinguished from an Assistant or em- ployee of a public officer, although the latter may be authorized by statute, and their duties j&xed by law. A clerk or employee does not perform official acts, although sometimes considered as public officers.^^ But a deputy is a substitute for his princi- pal, and acts by virtue of the authority inherent in his appoint- ment, although he acts in the name of the principal ^^ except isByers vs. State, 20 Ind. 47. See also Coburn vs. Townsend, 103 Cal. 233; 37 Pao. 202. 20 State ex rel. vs. Bus, 135 Mo. 325; 36 S. W. -636, Maafarlane, J.. " Deputy sheriffs are appointed by the sheriff, subject to the approval of the judge of the Circuit Courts; they are required to take the oath of office, which is to be indorsed upon the appointment and filed in the office of the clerk of the Circuit Court. After appointment and qualification they ' Shall possess all the power and may perform any of the duties prescribed by law to be performed by tlie sheriff.' The right, authority and duty are thus created by stat- ute; he is invested with some por- tions of the sovereign functions of the government to be exercised for the benefit of the public and is, consequently, a public officer within any definition given by the courts or text writers. It can make no differ- ence that the appointment is made by the sheriff, or that it is in the nature of an employment, or that the compensation may be fixed by contract. The power of appoint- ment comes from the State, the authority is derived from the law, and the duties are exercised for the benefit of the public." Dayton vs. Lynes, 30 Conn. 351; White vs. State, 44 Ala. 409; United States vs. Martin, 17 Fed. Rep. 1,-jO. 21 United States vs. Hartwell, 6 Wall. 385. 22 Anderson vs. Brown, 9 O. IM. In this case the deputy sheriff un- dertook to execute a sheriff's deed in his own name as deputy. Held, " where delegated authority is ex- ercised, it must be exercised in the name of the principal. Where one acts as the attorney of aaother, the act should purport to be the act of the constituent. The deputies of a sheriff compose but one officer, and they have no authority except that exercised in the name of the principal. If, then, as in this case, a deputy assume to convey lands himself in his own name, his acts are void, like those of any other agent." Gleneoe vs. People, 78 111. 382; OFFICIAL BONDS. 285 where specially authorized by statute to act Eo Nomine.''* Judicial oflBeers cannot act through a deputy '* but minis- terial authority may generally be exercised by a deputy. Official deputies are of two classes ; where their appointment and powers are fixed by law, and who give bond to the State or people and whose compensation is paid out of the public treas- ury ; and where their appointment, although authorized by law, is dependent upon the will of the principal, as to whether it shall be made, and whose powers and duties are such as the principal shall in his discretion delegate, and who give bond to the principal. In both cases they are public officers, and the undertakings which they furnish for their fidelity should be construed as offi- cial bonds, since the relation between the deputy and his princi- pal, in neither case, is contractual. Agreements by the principal to appoint deputies cannot be upheld as contracts, and are void as against public policy.'" Rowley vs. Howard, 23 Cal. 401; Robinson vs. Hall, 33 Kan. 139; 5 Pac. 763; Samuels vs. Shelton, 48 Mo. 444. Gibbens vs. Pickett, 31 Fla. 147; 12 South. 17, Taylor, J.: "While our statute in express terms author- izes sheriffs to appoint deputies to act under them, who shall have the same power as the sheriffs appoint- ing, and for whose neglect and de- fault in the execution of their of- fice the sheriff shall be responsible, still there is nothing more in this Statute than a declaration of that which was common law on the sub- ject from time immemorial in En- gland and in this country, and we can see nothing in the Statute that creates In a ' deputy sheriff ' any independent distinctive official pow- er or authority, except such as he derives as deputy from and through his principal. The term ' deputy ' necessarily carries with it the idea that he has a principal, and that he can not act independently in his own name and stead, but performs all official acts of this kind in the name and stead of such principal for whom, as deputy, he is alone au- thorized to act. If he undertakes tp act in his own name and on his own authority, then he no longer acts as deputy, but as an independent official recognizing no official supe- rior." 23 Eastman vs. Curtis, 4 Vt. 616; Calender vs. Olcott, 1 Mich. 344; Westbrook vs. Miller, 56 Mich. 148; 22 N. W. 2o6; Gilkey vs. Cook, CO Wis. 133; 18 N. W. 639. 24 State vs. Jefferson, 66 N. C. 309 ; Van Slyke vs. Trempealeau Ins. Co., 39 Wis. 390; Jacquemine vs. State, 48 Miss. 280. 25 Hager vs. Catlin, 18 Hun 448 : Stout vs. Ennis, 28 Kan. 706. But see Hoge vs. Trigg, 4 Munf. (Va.) 150. 286 THE LAW OF SUEETYSHIP. Where the statute does not fix the terms and amount of the deputy's bond, the undertaking may be for such amount and in such form as the principal and his deputy shall agree.^" The bond is for the protection of the principal officer, and not the public ; yet it cannot "well be governed in its construction by the rules that apply to bonds to secure a private contract, be- cause the duties and powers of the deputy are subject to the sariie changes and limitations which affect the office of the prin- cipal. The rules of construction therefore which relate to offi- cial bonds should be applied.^' §166. ftualification and approval of sureties. Sureties upon official bonds must have the same contractual capacity which is required in the making of any form of con- tract, and unless they have all the necessary qualifications to make a simple contract, they are not eligible as sureties. Persons of unsound mind or who are under disability of in- fancy, or in some States, coverture, cannot become Surety."* Not all persons, however, who have proper capacity to make simple contracts, are eligible as sureties upon official bonds. A corporation, other than those organized for the special pur- pose of making contracts in Suretyship,"* cannot become Surety, since the act would be ultra vires, it being no part of the cor- poration purpose to use the corporation in performing acts of mere friendship or accommodation to others.^" 20 Gradle vs. Hoffman, 105 111. between them in almost every re- 147. spect. The one is an official bond 27 Hubert vs. Mendheim, 04 Cal. of a public officer, the form and 213; 30 Pac. 033. conditions of which are fixed by Contra — MuUin vs. Whitmore, 74 law; the other is a private bond of N. C. 477. an individual, for which no form is " The defendants insist that their prescribed and in which any con- bond shall be interpreted by the dltions may be inserted which will rules which govern the construction carry out the intent of the parties." of the ofBcial bonds of a high sher- 28 Ante Sec. 11. iff, drawn in pursuance of the Stat- 29 Post Chap. IX. ute, specifying what bonds shall be aoThat a "corporation cannot be- given and the conditions of the come an accommodation indorser or came.' But there is a wide difference guarantor in commercial transae- OFFICIAL BONDS. 387 Certain other persons are prohibited by statutes from tecom- ing Surety, such as provisions of law that only those residing in the same County or State where the bond is to be filed shall be accepted as Surety/' or statutory requirements that the Surety possess a certain amount of tangible property subject to execu- tion within the State. The approval of bonds by those given authority to determine whether the persons approved as Surety have the qualification required by law, have been held to be judicial acts.^^ There seems to be a special ground for considering the ap- proval a judicial act, in those cases where the law declares the office vacant upon failure to file a bond, as refusal to approve a bond in such a ease, might result in the vacation of the office.^' The approval of the bond will be presumed from its accept- tions, unconnected with its regular business, has been the holding of a large number of well considered cases. Bank of Genesee vs. Patchin Bank, 13 N. Y. 309, Denio, J. (314): "It is quite clear that -the ofBcers of a banking as- sociation or other corporation have no power to engage the institu- tion as the surety for another, in a business in which it has no in- terest. Such a transaction is with- out the scope of the business of the company. The authority of the gov- erning officers of a corporation, to affect it by their contracts in its name, is of the same general chajac- tsr as that which a partner has to bind the firm. In either ease, if they contract in a matter to which the business of the corporation or partnership does not extend, their engagements are invalid as against the corporation, for want of author- ity to conclude those in whose be- half they assume to act." Park Nat'l Bank vs. German, etc.. Co., 116 N. Y. 281; Lafayette Sav- ings Bank vs. St. Louis Stoneware Co., 2 Mo. App. 299; Culver vs. Reno Real Est. Co., 91 Pa. 367 ; Lu- cas vs. White Line Transfer Co., 70 Iowa 541; 30 N. W. 771; Hall vs. Auburn Co., 27 Cal. 256. 31 Sureties will be estopped from claiming their non-residence as a defense. Board of School Directors vs. Brown, 33 La. Ann. 383; State vs. Flinn, 77 Ala. 100. 32 State vs. Dunnington, 12 Md. 340; Ex parte Harris, 52 Ala. 87; Swan vs. Gray, 44 Miss. 393; Bay Co. vs. Brock, 44 Mich. 45; 6 N. W. 101. But see Boone Co. vs. State, 61 Ind. 379. Holding that the refusal to approve a bond is a ministerial act and that mandamus will lie to compel the oflfieer to approve the bond or show cases why he does not. See also Speed vs. Common Coun- cil, 97 Mich. 198; 56 N. W. 570. 33 Knox Co. vs. Johnson, 124 Ind. 145; 24 N. E. 148. 288 THE LAW OF SURETYSHIP. ance and retention without objection.^* Failure to approve a bond does not constitute a defense to the Surety."* §167. The signing of the bond by the principal. The omission of the name of the principal as one of the sign- ers of an official bond, even where his name appears in the body of the instrument as an obligor, is a mere' technical defect and will not release the Surety except in those cases where the Surety signs upon condition, known to liie obligee, that the bond is not to take effect until signed by the principal. The Sureties are not injured by the failure of the principal to sign, if they are compelled to pay the penalty of the bond because of the default of the principal, they can recover the amount back from the principal whether he signed the bond or not.** Where the bond is accepted and approved without the signa- ture of the principal and the latter enters upon his office by reason of the reliance of the obligee upon the bond, it would be giving the Sureties the benefit of the contract without imposing its burdens to permit them to escape liability.*' It has been held that where the statutes require the principal to sign, that the instrument is incomplete without his signature, and does not bind the Sureties except where the obligee is able to show affirmatively that the Sureties intended to waive the execution by the principal.*' 3* Postmaster Gen'l vs. Norvell, bond was upon condition that the Gilp. 106; Pierce vs. Richardson, principal sign, which condition was 37 N. H. 306. known to the obligee, it was consid- 35 Boone Co. vs. Jones, 54 Iowa ered that the failure of the principal 699; 2 N. W. 987; Trustees vs. to sign constituted a valid defense. Sheik, 119 111. 579; 8 N. E. 189; 37 McLeod vs. State, 69 Miss. 221 ; Mowbray vs. State, 88 Ind. 324; 13 South. 268; Hall vs. State, 69 Young vs. State, 7 Gill & John. Miss. 529 ; 13 South. 38. (Md.) 253; People vs. Huson, 78 as Johnston vs. Kimball, 39 Mich. Cal. 154 ; 20 Pac. 369 ; Paxton vs. 187, Camphell, C. J. : " Where sev- State, 59 Neb. 460; 81 N. W. 383. eral names are written as co-obli- 30 Trustees vs. Sheik, 119 111. 579; gors and one of them is called upon 8 N. E. 189. In which it was also to sign it, he does so upon an im- held that where the signing of a plied understanding that he can in OFFICIAI, BONDS. 289 It is dlso held that if the bond recites a joint obligation, nam- ing the principal as one of the joint obligors, the instru- ment does not take effect against any of the parties until the principal signs.'" §168. Liability of sureties as affected by failure to deliver or furnish the bond within the time required by law. The statutes of the various States have provided with mudi uniformity the time within which a person elected or appointed to a public office must submit his bond for approval. These statutes usually add as a penalty for failure to give the bond that the office shall become vacant. A difference of construction prevails whether the statutes as to the penalty creating a vacancy are mandatory or merely direc- tory. If the former, then at the expiration of the limit fixed by statute, the office is forfeited without judicial determination, and the tender and acceptance of a bond after such date will not revive the office nor involve any liability upon the bond, and on the other hand, if the statute is merely directory the bond may be filed on a later day, and if approved the nominal infraction of law will be deemed waived. The preponderance of authority supports the view that al- though the statute recites in plain terms that the office shall b&- case of being held responsible, not It was claimed on the argument that only have his right to contribution, the sureties would have » right of but a, further right to have it cap- contribution against the treasurer able of proof and enforcement ac- at any rate, whether he did or did cording to the terms of the contract not sign the bond with them. This- as it purports to be drawn up. And may be true, but if he had signed' lie has right to insist that he will the bond, he would not only be cs- not be bound except upon his own topped by the judgment from eon- terms, reasonable or unreasonable. testing his liability, but the sure- It is for himself and not for others ties could require recourse to his to determine these terms. And if it property to satisfy the execution be- is claimed he has waived them, or fore seizure of theirs. These are become estopped from relying on not barren advantages." them, the burden of proof ought not See also Bean vs. Parker, 17 Masd. to be laid upon him to show that 603; Ferry vs. Burchard, 21 Conn, there has been no variance, but upon 597 ; Bunn vs. Jetmore, 70 Mo. 2l;8. the plaintiff to show what is sub- so People vs. Hartley, 21 Cal. ,183. stantially a new contract. . . 390 THE LAW OF SUEETYSHIP. eome vacant by failure to deposit the bond within the time pre- scribed by law, yet such failure does not ipso facto create a va- csmey nor prevent the officer from thereafter qualifying, pro viding the bond is furnished before steps are taken to declare the ■office vacant. In reaching this conclusion, the courts have many times dis- regarded what seems to be the clear and unambiguous language of the statute in order to give effect to the maxim of the common law that " forfeitures are never favored." *° estate vs. Ruff, 4 Wash. 234; 29 Pac. 999, Hoyt, J.. " Under oiir statute it is the election which gives the right to the office, and the quali- fication is only an incidental require- ment for the protection of the pub- lic. If the provisions for such quali- fication are not timely complied ^th the public can protect itself l)y declaring a vacancy and filling the same by appointment, but until such acts have been done, the force of the election has not been exhaust- ed, and upon compliance with the incidental duty of qualification is ;given full force." The statute upon which this construction is based pro- Tidies that " Every office shall be- «ome vacant on the happening of either of the following events before the expiration of the term of such officer: .... Sixth, his refusal, or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law." The dissenting opinion in this case states clearly the opposing view. " I am unable to agree with the ma- jority. Nor do I think that a. plain etatutory enactment setting forth Bpecifically circumstances under ■which an office becomes vacant should be construed out of existence by the mere statement of the theo- retical rule that ' forfeitures are ab- horied by the Courts.' What the courts abhor should be of very little consequence. The vital question is, what did the Legislature intend? I think it an excellent idea for courts to give the statutory language its plain and ordinary meaning. . . It seems to me that if the legisla- ture had desired to enact that an office should become vacant upon the refusal or neglect of the officer- elect to take his oath of office or to give or renew his official bond with- in the time prescribed by law, it could not have expressed itself m language more clear or unambigu- ous. Nothing is said about a ' for- feiture being declared by the proper authority,' that is an idea expressed by the majority opinion, but it is not found anywher'e in the law." See also, Chicago vs. Gage, 95 111. 593 ; People vs. HoUey, 12 Wend. 481; State vs. Churchill, 41 Mo. 42; State vs. Falconer, 44 Ala. 696; State vs. County Court, 44 Mo. 230; Kearney vs. Andrews, 10 N. J. Eq. 70; State vs. Colvig, 15 Ore. 57; 13 Pac. 639; Ross vs. Williamson, 44 Ga. 501. In South Carolina the statute re- cites that upon failure to file a bond within a specified time the " office shall be deemed absolutely vacant," and it is held that the failure to file the bond does not ipso facto va- OFFICIAL BONDS. 291 ' If an officer though in default tenders his bond, and it is ac- cepted, the public by this act waives the right to, declare the office forfeited.*^ Where the statute provides that the office shall become vacant by failure to file a bond, although such statute is construed to be merely directory, it is held that a judicial determination of the existence of a vacancy is not necessary, and that an appoint- ment to fill the vacancy thus created may be made as soon as the limit expires for filing the bond/^ The statute in some instances provides that the failure of the officer to file his bond, ipso facto, works a forfeiture of the office. A statute in this form creates a vacancy without judicial de- termination.*'' The literal provision of the statute has been followed by some courts which hold that the requirement for filing the bond within a specified time is mandatory, and supersedes the com- mon law rule that forfeitures are not favored.** cate the office. State vs. Toomer, 7 Rich. Law Eep. 216; Cronin vs. Stoddard, 97 N. Y. 271. "Schufif vs. Pflanz, 99 Ky. 97; 35 S. W. 132. " Upon the failure to execute any bond required of this official, for the protection of the State, county or citizens, the county court may remove him from office; and particularly where by statute it is made the plain duty of the official to execute the bond on a particular day. The duty thus devolves on the sheriff and he must comply with the law; but it does not follow because the sheriff fails to renew his general bond or to give an annual bond for the collection of the revenue that the county judge is powerless to ac- cept a bond after the first Monday in January. He may, it is true, vacate the office, but before he does this he accepts a bond and when accepted, the sheriff having previously qualified, it is then too late to enter an order vacating the office." Cawley vs. People, 95 111. 249. ^2 State vs. Tucker, 54 Ala. 205; State vs. Lansing, 46 Neb. 514; 64 N. W. 1104. But see Cronin vs. Stoddard, 97 N. Y. 271. 43 State vs. Beard, 34 La. Ann. 273. 44 People vs. Perkins, 85 Cal. 509 ; 26 Pac. 245; Johnson vs. Mann, 77 Va. 205; In re Atty. Gen., 14 Fla. 277. See also Falconer vs. Shoves, 37 Ark. 386. The holding in this ease is that the failure to tender a bond gives to the officer holding the ap- pointing power the right to immedi- ately appoint another to the office, and that the tender of a bond after the appointment has been made will not restore the claimant to the office so forfeited, 292 THK LAW OF SUKETYSHIP. If the officer fails to make a seasonable delivery of hia bond, and defaults occur after entering upon the duties of his office, but before the bond is approved, the sureties will he liable, where the language of the bond, covers the term of office, either by specifying the date of the beginning of the term or by the use of such words of general description as may fairly be interpreted to mean the entire term.'"' §169. Sureties upon official bonds discharged by alterations to which they do not consent. While it may be asserted that the law does not favor a for- feiture in the matter of official bonds, such a rule will not be extended so as to violate any fixed contract right of the Surety. The interests of the public require that a bond to secure the performance of official duty shall be madf <'ffective if possible, and not defeated by a mere technicality involving no hardship upon the Surety, such as a failure to file a bond on the exact day required by law, as considered in the preceding section. But public interest must yield to individual rights, and it is the right of any contracting party, and especially an obligor in suretyship, to stand upon the strict letter of his undertaking. An alteration of a bond by decreasing the amount of the penalty violates the right of the Surety as much as if the penalty had been increased, and it is immaterial that the one benefits the Surety by reducing his burdens.*" An immaterial change in the bond, which neither adds nor takes away any obligation, will not release the Surety. *'^ *5 Hatch vs. Attleborough, 97 State vs. Berg, 50 Ind. 496. In Mass. 533. this case, the bond of a township *6 Board of Commissioners vs. trustee recited that the principal Gray, 61 Minn. 242; 63 N. W. 635; should render an accounting to the Miller vs. Stewart, 9 Wheat. 680. Board of Commissioners " at its See also People vs. Brown, 2 March term, 1868." This was al- Doug. (Mich.) 9; Mitchell vs. Bur- tered by the addition of the years toil, 2 Head (Tenn.) 613; Doane "1869 and 1870." This was held vs. Eldridge, 16 Gray 254. an immaterial alteration. This liold- ^TRudesill vs. County Court of ing was based upon the fact that the JcfTerion Co.. 85 Til. 446. law required the oflficer to make hia OFFICIAL BONDS. 298 The addition of tlie name of a new Surety without the knowl- edge of the first Surety is not a material alteration.*' It has been held that where the body of the bond became mutilated by an accident, and the signatures were cut off and at- tached to a copy, that the sureties were liable.*" If a Surety signs a Bond in blank and intrusts it to the prin- cipal, he cannot thereafter complain that the amount of the penalty is filled in by another, and such other additions made as are necessary to give the instrument effect °° §170. Alteration in the duties of the principal by amendment t* the law. It is the settled rule as to official bonds that they include lia- bility not only for default in the performance of duties im- posed by the law in force at the time of the execution of the bond, but also extend to all duties which may from time to time be added to the office by amendment to the law. This results from the essential distinction between a bond to secure a contract, and a bond to secure performance of a public duty. The latter does not relate to default in contractual du- ties and is unaffected by the rules which protect sureties who undertake to indemnify against a breach of contract. °^ Sureties upon official bonds are held to contemplate a possible amendment to the law and to stipulate, by implication, to be re- sponsible for the performance of all duty thus added. Such a rule is indispensable to the proper managemeait of public af- fairs, the only limitation being that the new duties imposed shall be of the same general character as those described by statute at the time of the execution of the bond. Thus the legislature, by an act subsequent to the execution of a bond of a loan commissioner, transferred to the custody of report at the times inserted in the *» State vs. Harney, 57 Miss. 863. bond, and that the duty derives no so Rose vs. Douglas Tp., 52 Kan. additional force from the terras of 451; 34 Pac. 1046; Dedge vs. the bond. Branch,, 94 Ga. 37 ; 20 S. E. 657. "S" Governor vs. Lagow, 43 111. 134. =i Ante See. 163. 294 THE LAW OF SUKETYSHIP. such commissioner money held by another officer,"^ or where the legislature, after the election and qualification of a sheriff^ amends the law of procedure and adopts a new code materially changing the duties of such officer, the sureties will be liable for defaults of the officer in executing process under the new pro- cedure,^' also where the duties of City Treasurer are added to the office of County Treasurer.®* While sureties upon an official bond will not be liable for de- faults in the performance of added duties, which are not of the same general character as those which were incumbent upon the officer at the time the bond was executed, yet they will not thereby be discharged as to defaults in the regular duties of office. Thus a collector of customs was by act of Congress required to 112 People vs. Vilas, 36 N. Y. 459, Qrover, J. : " The analogy between this class of cases and the contracts of individuals fails in this respect. In the latter no alteration can be made without the mutual assent of both parties. In the former, the Legislature have power at any and all times to change the duties of officers, and the continued existence of this power is known to the officer and hia sureties, and the officer ac- cepts the office and the sureties exe- cute the bond with this knowledge. It is, I think, the same in effect as though this power was recited in the bond. Had this been done it would not be claimed that the sureties were discharged by its exercise. . . . . In the absence of authority de- termining the question otherwise, my conviction is, that any altera- tion, addition or diminution of the duties of a, public officer made by the Legislature, does not discharge his official bond or the sureties thereon so , long as the duties; re- quired are the appropriate fjinctions of the particular officer. That all such alterations are within the con- templation of the parties executing the bond. That imposing duties of another description, and not appro- priate to the office, would discharge sureties, not coming within such contemplation." See also Board of Education vs. Quick, 99 N. Y. 139; 1 N. E. 533; Colter vs. Morgan, 12 B. Mon. (Ky.) 278. The same principle is extended to any bond given in pursuance of the requirements of law although the obligor is not strictly a public officer, such as the bond given by a distiller in compliance with the Federal Statutes, conditioned that he will observe the law in relation to the business of distilling. United States vs. Powell, 14 Wall. 493. 53 King vs. Nichols, 16 O. S. 80. See also Marney vs. State, 13 Mo. 7. 54 Dawson vs. State, 38 O. S. 1. See also Commonwealth vs.. Holmes, 25 Gratt. 771; United States vs. McCartney, I Fed. Rep. 104; Prickett vs. People, 88.111. 115, OFiniMA], BOSJlt^. 295 pay over to his superior officer the money collected by hiiri ; sub- sequently, and after the execution of his bond, he was required by the United States to disburse funds in his hands for pur- poses outside the scope of his duties as collector, such as the building of a Marine Hospital and the furnishing of supplies to the naval service. It was held that the Sureties would not be liable for defaults in. the performance of the new duties, bnt would be liable for the obligations originally created.^' An increase or diminution of the compensation of a public officer will not release the sureties upon his bond.^" The implied assent which the obligors upon official bonds are- deemed to give, that they will be bound for all added duties- which the legislature may impose, is necessarily limited to those 55 Gaussen vs. United States, 97 U. S. 584, Strong, J.: "The first special plea requires a more minute examination. It was, in effect, that the obligation of the bond had been discharged, not directly, but because the principal obligor had been re- quired to perform, and had per- formed, duties additional to those which pertained by law to his of- fice when the bond was made. It does not aver that the additional duties changed the character of the office, or increased the i-esponsibility of the collector for the money re- ceived by him as collector of cus- toms. How, then, the requisition of duties not inconsistent with account- ing for and paying over money re- ceived by him as collector of cus- toms can operate to release his bond is quite incomprehensible. If it be conceded, as it may be, that the addition of duties different in their nature from those which be- longed to the office when the official bond was given will not impose up- on an obligor in the bond, as such, additional responsibilities, it is un- donbtedlv true that such an addi- tion of new duties does not render void the bond of the officer as s security for the performance of the duties at first assumed. It will still remain a security for what it wa» originally given to secure." See also Board of Supervisors vs. Clark, 92 N. Y. 391. But see Pybus vs. Gibb, 6 Ell. & Bl. 902. In this case the juris- diction of a bailiff was increasect whereby new duties were imposed with additional fees, held — " It may- be considered settled law that, where there is a bond of suretyship for an officer, and by the act of the par- ties or by Act of Parliament, fher nature of the office is so chan'rr'd that the duties are materially ■ f- tered, so as to affect the peril of 1 "le- sureties, the bond is avoided." T';«- English rule stated above has v.ct been adopted in the United State* and has been somewhat modified in the later English eases. Mailing: Union vs. Graham^ 5 L. R. C. P, 201; Skillett vs. Fletcher, I L. R. C. P. 217. 50 Sacramento Co. vs. Biril 31 Cnl. GO. 296 THE LAW OF SUKETYSHIP. changes which create new duties of the same general character, it cannot be said that parties to such transactions make their contract in contemplation of the power of the legislature to im- pose duties requiring different qualifications to perform, and involving exposure to defaults which could not occur under the original scope of the office/' §171. Extension of tenure of office by legislative act The extension of the Tenure of Office by act of the Legisla- ture differs in principle from those cases in which additional ■duties are imposed upon a public officer. It is essential for the protection of the rights of parties to contracts that the obligation terminate at a definite time, and while the Legislature has the power to extend the term it also has the power to provide that the officer give an additional bond for the new or extended term. The limit as to time is as important to sureties upon official bondst as the limit iu amount, and the Legislature cannot ex- change either stipulation in the surety's contract without his 5' Denio vs. State, 60 Miss. 949. in degree, merely different from In this case a clerk of the court those before pertaining to the office, ■was required, by an act subsequent and leaves the office unchanged in to the execution of his bond, to col- its functions, the bond before given lect a license fee from attorneys may be fairly held to be a security, and pay the same over to the county while for any duty, not pertinent treasury, held — " The distinction is in its nature to the office as existing between an increase by the I-egisla- when the bond was given, it ean- iure of the duties of an office of not be justly said ta have been the same nature or like kind as within the contemplation of tbe those before pertaining to it, after obligators that they should be bound the execution of the bond, and the for them, and they are not so addition of new duties, not of the bound." same nature or kind with those be- See also County of Spokane vs. fore belonging to it. Every official Allen, 9 Wash. 229; 37 Pae. 428; bond is executed with a knowledge White vs. East Saginaw, 43 Mich. 1 of the right, and the practice of the 567 ; 6 N. W. 86. Legislature, to enlarge the duties os Peppin vs. Cooper, 2 Barn. & of the officer, and for every addition- Aid. 431 ; Bigelow vs. Bridge, 8 al duty imposed by competent au- Mass. 274; Moss vs. State, 10 Mo. thority, which is not in kind, but 338; State Treasurer vs. Mann, 34 OFFICIAL BONDS. 297 Where the bond recites that it covers the term of office, and until the successor of the principal is elected and qualified, it is sufficiently definite to bind the sureties and they will be liable for defaults for a reasonable time beyond the termination of the statutory term.°* The necessary delay in the qualification of the successor in office, arising from accident or other cause, might be consid- ered as within the contemplation of the parties, but a consent to an extension of the term cannot fairly be implied from such contract. |172. Special bonds given by officers who have also given gen- eral bonds. Where a public officer who has already given bond, is required by law to give additional bond to secure the performance of some special duty, the General Bond is not liable for defaults in the matter of the special duty, neither is the Special Bond liable for acts ia the line of the general duty of the officer. Without the requirement and acceptance of the Special Bond the sureties upon the General Bond in many instances would be liable for defaults in the performance of new and special duties Vt. 371; Patterson vs. Freehold Tp., Minn. 309; 47 N. W. 802; Thomp- 38 N. J. L. 255; Miller vs. Stewart, son vs. State, 37 Miss. 618. These ^ Wheat. 680; Dover vs. Twombly, cases arise under a statute provid- A2 N. H. 59; Smith vs. United ing that a public officer shall nold States, 2 Wall. 219; Welch vs. Sey- over until his successor shall quali- jnour, 28 Conn. 387 ; Brown vs. Lfit- fy. Where there is no such statute •timore, 17 Cal. 93; King Co. vs. the rule has not always been ap- Perry, 5 Wash. 536; 32 Pac. 538; plied. Mullikin ts. State, 7 Blaekf' d Norridgewock vs. Hale, 80 Me. (Ind.) 77. 362; 14 Atl. 943. Contra — Commonwealth vs. Drew- Where a treasurer misappropri- ry, 15 Gratt. (Va.) 1. ated public funds on the day foUow- !>' Baker City vs. Murphy, 30 ing the expiration of his term and Oreg. 405; 42 Pae. 133; Administra- before his successor had qualified, tor vs. McKowen, 48 La. Ann. 251 ; held — ^the sureties were not liable. 19 South. 328; Long vs. Seay, 72 See also Dover vs. Twombly, 42 Mo. 648; Montgomery vs. Hughes, N. H. 59. •('.5 Ala. 201 ; Taylor vs. Sullivan, 45 298 THE LAW OF SUEETYSHIP. added to the office after the making of the bond.*" But the obligee impliedly waives the right to resort to such bond by re- quiring an additional security. Thus where the law makes a County Treasurer the custodian of the school fund and requires a Special Bond for its protec- tion, it was held that the sureties upon the General Bond were not liable for shortages in the school fund."^ This rule was applied even where the General Bond recited that the treasurer " shall safely keep and pay over, according to law, all moneys which come into his hands for State, county, towashi-p,- school, rpad, bridge, poor, town, and all other pur- poses," the treasurer being required by law to execute a Special Bond for the protection of money coming from the sale of school lands to be used for school purposes, it was considered that the two bonds were not cumulative, and that the sureties upon the General Bond were not liable for defaults in the school funds.®^ Where the treasurer by virtue of his office became the cus- todian of a special fund, the proceeds of a sale of bonds to be used for the erection of a Court House, and gave a Special Bond in pursuance of a requirement of law, the sureties upon his General Bond were held not liable for defaults in the Court House fund.'' 60 Ante Sec. 170. ea State vs. Young, 23 Minn. 551 ;. «i State vs. Felton, 59 Miss. 402; County vs. Tower, 28 Minn. 45; 8 N. Broad vs. Paris, 66 Tex. 119; 18 W. 907. S. W. 342. 63 Board of Supervisors vs. Ehl- Sureties upon the general bond ers, 45 Wis. 281; Board of Super- are not liable for defaults in the visors vs. Pabst, 70 Wis. 352; 35 N. performance of a special duty for W. 337. which a bond is required, even See also Commonwealth vs. Toms, though such additional bond is not 45 Pa. 408; State vs. Johnson, 55 in fact given. Columbia Co. vs. Mo. 80; Williams vs. Morton, 38 Massie,*31 Oreg. 292; 48 Pac. 694; Me. 47. County Board vs: Bateman, 102 N. But see Kempner vs. Galveston C. 52; 8 S. E. 882; Costley vs. Al- Co., 73 Tex. 216; 11 S. W. 188. len, 66 Ala. 198. OFFICIAI, BONDS. 299 §173. Bonds of public officers not retroactive and cover only the period named in the bond. It is self-evident that sureties upon the bond of a public offi- cer are not liable for acts of their principal occurring before they make their contract, except where the bond by its terms is to take effect at a date prior to its delivery or acceptance, as where an officer enters upon his duty at the beginning of his term but does not file his bond till a later date, which bond, un- der certain circumstances, heretofore considered,"* operates by relation back to the first day of the term. It is also equally self-evident that the sureties are not liable beyond the date of the expiration of the official term, which date, is held to be either the day named in the bond^ or in the statute, with a reasonable extension till the successor in office has quali- fied, where the statute so stipulates."" While these propositions are properly termed self-evident, yet it has not always been found easy to malce the application where the officer has held office for two or more successive terms, with different sureties for each term, or has given successive bonds during the same term. If public money is abstracted while the second bond is in force, and used to pay defalcations made under the first bond, or money is borrowed on the individual credit of the officer from outside sources to pay defaults of the first term, and public money is used in the second term to repay the loan, the situa- tion, under either of these hypotheses, presents complications re- quiring judicial construction of the rights of the seiveral sets of sureties ; and in many instances it becomes a question of law as to when the defalcation took place. The law will not, in any event, assume the burden of ascer- taining for the parties when the shortage occurred, and if the parties in interest fail to present proof as to when default was committed, the law vsnlll presume the entire default occurred in the last term;"" and if the sureties upon the last bond would «*ATite Sec. 168. Pine Co. vs..Willard, 39 Minn. 125; 83 Ante See. 171. 39 N. W. 71; Bruce vs. United «e Kelly vs. State, 25 D- S. 567; States, 17 How. 437; Hetten vs.' 300 THE LAW OF SITEETYSHIP. exonerate themselves upon the ground that the deficiency oc- curred during the prior term, the burden is upon them to show that fact. In general, each bond is chargeable with all the funds re- ceived during the term, or which at any time during the term are in the treasury, which have not been properly disbursed or accounted for. If defalcations occur in the first term which are covered by defalcations of the second term, the wrongful act would seem to be equal in extent in each term, yet each set of sureties may pre- sent plausible reasons for their complete exoneration. The first set claiming that there is in fact no shortage; that the officer has made good his default ; and that it is irrelevant to inquire from what source he received the money, whether he borrowed it, or converted it, or inherited it, in either event he paid it in, and the shortage was made good ; tiiat they are in no different situation than they would be if the principal had held concurrently two public offices, and had used the funds of one office to make good the shortage of the other, and that in no event could they be held for embezzlement of their principal in some other offiee- The second set of sureties claiming that there was no default in the second term ; the conversion to the use of the officer was in the first term; that the application of the revenues of the second term to the shortage of the previous term is a mere matter of bookkeeping, that no funds are in fact taken away, but it is at most an effort to conceal a former vsTongful act by irregular entries in the books. The weight of authority is that the second sureties are liable and the first exonerated,"' and that the use of public money re- Lane, 43 Tex. 279; Clark vs. Wil- ot Gwynne vs. Burnell, 7 CI. & Icinson, 59 Wis. 543; 18 N. W. 481; Fin. 572; State vs. Sooy, 39 N. J. Goodwine vs. State, 81 Ind. 109; L. 539; Crawn vs. Commonwealth, Boekenstedt vs. Perkins, 73 Iowa 84 Va. 282; 4 S. E. 721; State vs. 23; 34 N. W. 488; Kagay vs. True- Powell, 40 La. Ann. 234; 4 South, tees, 68 111. 75. 46; Rogers vs. State, 99 Ind. 218; But see Trustees vs. Smith, 88 Supervisors Lauderdale vs. Alford, 111. 181; Phipsburg vs. Dickinson, 65 Miss. 63; 3 South. 246; Frown- 78 Me. 457; 7 Atl. 9. OFFICIAL BONDS. 301 peived in the second term t® square the accounts of the first term, cannot be distinguished from the use of the funds to nieot any other obligation of the principal. The borrowing of money from an outside source and making good the shortage at the close of the first term is the same in ef- fect as if the principal had paid the deficit with his own funds, and the use of public funds in the second term to pay the loan is a conversion for which the second sureties are liable.*' Where the officer holds over but gives no bond for the second tei-m the sureties upon the fi*t term bond will be liable for the funds on hand at the close of the first term even though the officer converts them to his own use after entering upon the second term. The obligation to account for all money coming into his hands while acting under the bond still subsists, and the circumstance that he became his own successor and so not called upon for settlement will not relieve his sureties."" felter vs. State, 66 Md. 80; .5 Atl. 410. 68 Ingraham vs. Maine Bank, 13 Mass. 208; 08 Black _ vs. Oblender, 135 Pa. 526; 19 Atl. 945. The same principle is involved where the officer is not his own suc- cessor, but goes out of office having money of third parties in his pos- session; although the conversion to his own use occurs at a subsequent date, his sureties are liable. King vs. Nichols, 16 0. S. 80. In this ease the condition of the bond was that the sheriff would dls- afiarge the duties of his office " dur- ing his continuance in office." At the expiration of his term he held funds, the proceeds of an attach- ment proceeding, which were sub- ject to the order of the court. Sub- sequently an order was made, and he failed to pay the money, held, that although the money might not be due from liim during his term, and in fact converted after the ex- piration of his term, his sureties were nevertheless liable. See also Brobst vs. Skillen, 16 O. S. 382. Freeholders vs. Wilson, 16 N. J. L. 110. Where the officer dies and his personal representatives fail to pay over funds which were on hand at the time of his death his sureties are liable. Peabody vs. State, 4 O. S. 387. Ranney, J. : " We assume that there was no breach of the official bond during the life of the justice. But does the obligation of the sure- ties, to see that money received by him in his official capacity is prop- erly paid over, cease with his life, or other termination of his official term? We think not. Such- a con- clusion is neither warranted by the terms of the bond nor the object for which it is taken, while it would destroy all security for paying over a considerable portion of the money that must, necessarily, come into his hands. Tt wfluld not stop with c\- 302 THE LAW OF SUEETYSHIP. If the holding over without bond is contrary to law it is con- sidered that the sureties of the former term cannot be held liable, since under these circumstances he would be an officer de facto only." Where the accounts of the officer at the close of his first term were approved and he became his own successor, giving a new bond, it was held that the new sureties were liable for shortages occurring in the first term, on the ground that the record of the approval was constructive notice to the sureties as to the amount which should have been turned over.'^ onerating from liability the sure- ties of justices of the peace, but would extend equally to those of sherjifs, treasurers, constables, and a multitude of other public officers, who receive large sums of money which must, necessarily, remain in their hands at the termination of their official terms. The money re- ceived in this instance by the justice was held in trust for the creditor, and the only way in which the for- mer could discharge himself from the trust was by paying it over, npon demand, to the latter. . . . . Until demanded, he was required to keep it safely; and when demand- ed, whether he was then in or out of office, to pay it over to the person entitled. This his sureties bound themselves he should do, and a fail- ure to do it is a breach of their bond. When they assumed, the obli- gation, they must be presumed to have known that, in the regular ex- ercise of the duties of his office, it would probably terminate with money in his hands, and to have contemplated the various contingen- cies by which it might be brought lo a close bsfore the regular period for which he was elected. One of these was death; and in such a, case they knew very well that the obli- gations resting upon him in respect to such funds, were by law cast upon his personal representative." See also Great Falls vs. Hanks, 21 Mont. 83; 52 Pac. 785; Allen vs. State, 6 Blackf. (Ind.) 252. But if the officer holds -over and gives a new bond, the sureties of the second bond ^re liable for what he had on hand at the close of his first term. Trustees vs. Arnold, 58 111. App. 103. '0 Wapello vs. Bigham, 10 Iowa 39; Scott Co. vs. Ring, 29 Minn. 398; 13 N. W. 181; Bennett va. State, 58 Miss. 556. 'iMorley vs. Metamora, 78 111- 394, Scott, G. J. : " It is not made to appear very clearly, that whatever default occurred took place in the first year the supervisor was in of- fice; but, conceding that fact, we do not think it relieves the sureties on the bond upon which this action is brought, from liability. The super- visor was his own successor in office. He had made his annual report, in which he charged himself with hav- ing a, certain amount of money in his hands. That report was ap- proved, and. we must presume it was true. When he was re-elected it was in his own hands as his own These facts appeared successor. QgFICTAT, BONDS. 303 §174. Same subject — Where the wrongful act was partly in one and partly in another term. if au officer enters upon the performance of a duty before the close of his first term, and completes the duty in his second term, the sureties upon the first bond will generally be liable for his default, irrespective of the time when the default occurred. If a sheriff levies execution, and before the retxirn day be- comes his own successor in office, and files a new bond, his de- fault in not paying over the money made on the execution will be a liability against the first sureties, and not tbe second, even though the money came into his hands during the second term, and was thereafter converted. It is considered an indivisible duty and in its entirety dates from the levy.''^ §175. Second bond given in the same term cumulative. A bond given in pursuance of a requirement of the law, dur- ing a term in which the officer has already given a bond, and which covers the same duties included in the first bond, is a cumulative obligation and does not release the sureties upon the former bond given from liability for defaults committed after the execution of the second undertaking.''* It is held that the second bond is liable for the defaults of the entire term including the defaults committed before its execu- tion." upon the public records of the town. State vs. Roberts, 12 N. J. L. 114; The new securities upon the official Tyree vs. Wilson, 9 Gratt. (Va.) bond of the supervisor must be held 59 ; Wooddell vs. Bruffy, 25 W. Va. to have had notice of what appeared 465. on the public records. In contem- But see Ingram vs. McCombs, 17 plation of law, the money mentioned Mo. 558; Sherrell vs. Goodrum, 3 in his report was in the hands of Humph. 419. the supervisor, and the undertaking '3 Finch vs. State, 71 Tex. 52; of the sureties on his bond was that 9 S. W. 85 ; State vs. Crooks, 7 0. he should account for it. It was as (Pt. 2) 221 ; Allen vs. State, 61 Ind. much his duty to account for what- 268; State vs. Sappington, 67 Mo. ever funds were in his hands at the 529 ; Moore vs. Boudinot, 64 N. C. end of the first year, as it was to 190. account for whatever should be re- '* State vs. Moses, 18 S. C. 366; ceived during the second year." Miller vs. Moore, 3 Humph. (Tenn.) '^Elkin V'-. People. 4 111, 207; 1S9. 304 THE LAW OF STJEETYSHIF. If the new bond recites that it is in substitution of the former bond, it will exonerate the first sureties and place upon the second set the entire burden for the term.'" §176. Liability of surety for the negligence or error in judgment of a public officer. A public officer by accepting the trust tendered him through his appointment or election to office impliedly warrants that he has the capacity to fill the position, and the bond which he gives covers not merely his wilful defaults, but also those resulting from want of care or lack of judgment. The public from whom the franchise is derived may exact full protection against all loss resulting directly or indirectly from the conduct of the officer. This includes not only that which the principal does in an improper manner, but also his failure to do what the law spe^ cially enjoins upon him. Thus where a clerk of the Court omitted to insert in a record of a judgment the amount recovered, and the judgment ' creditor lost his remedy in execution by reason thereof, the sureties upon the bond of the clerk were held liable,'® and where the clerk failed to enter a judgment upon the records of the Court, and the creditor thereby lost his lien upon the de- fendant's land, the sureties were held liable for such damages as resulted to the creditor, a subsequent lien having intervened." So also where an officer seizes property in execution or attach- ment and through want of proper care it is damaged while in his possession,'" or a clerk of Court loses papers entrusted to his keeping which results in damage to a litigant.'"* But see Poole vs. Cox, 9 Ired. L. "Strain vs. Babb, 30 S. C. 342 r (N. C.) 69. S. E. 271. TB State vs. Finn, 23 Mo. App. ^switkowski vs. Hern, 82 Cal. 290. 604; 23 Pac. 132. But see Thompson vs. Dickerson, ^9 Rosenthal vs. Davenport, 38 22 Iowa 360. Minn. 543; 38 N. W. 618. 76 Governor vs. Dodd, 81 111. 102. OFFICIAL BONDS. 30^ It has been held that where the officer is charged with the duty of approving a bond, that his approval of an insufficient bond creates a liability against him and his sureties.'" the sureties of a public officer are not liable for errors in the judgment of their principal except where those errors result from negligence or failure to make the proper effort to ascertain the duty to be performed.'^ The liability for errors of judgment is not evaded by showing that the officer acted upon the advice of others. Where a duty is enjoined by law it must be observed, even though the officer is advised by the Attorney General of the State that it need not be observed, or that the duty does not exist.'^ §177. Liability of sureties for failure of public officer to account for the use of public funds. The liability of public officers to account to the people for interest collected upon public funds is established in this Coun- try by the weight of authority. Independent of statutory provision, by which many of the cases are controlled, it is said as a basis of the rule that interest is always merged in the principal, and belongs to the owner of the fund, also that it is an affront to law and morals for a. trustee to use in his own behalf the subject of his trust. It is not disputed by any advocate of a contrary doctrine that interest belongs to the owner of the fund which earns it, but the' somewhat novel proposition has been advanced that the relation: of debtor and creditor exists between the officer and the people, and that the fund therefore belongs not to the people, but to the officer, and he having given bond to absolutely return the amount to the people at the termination of his office, or account for its disbursement, it is no affair of the public what he does with it, in the meantime. This argument carries with it as a necessary deduction a denial of any trust relation as to the public fund. 80 Topping vs. Windley, 99 N. C. Fed. Rep. 153; Alexandria vs. Corse, 4; 5 S. E. 14; Spain vs. Clements, 2 Cranch (C. C.) 363; Statp vs. 63 Ga. 786. Chadvviek, 10 Oreg. 465. 81 United States vs. JlcClane, 74 82 Dodd vs. The State, 18 Ind. 56. 306 THE LAW OF SUHETYSHIP. The question as to whether the public or the officer is the owmer of the fund is in some cases determined by tlie form of the statute prescribing where the fund shall be kept, or a method of periodical counting and auditing of the money in the treas- ury. Those expressions in the statute which reqiiire the treas- urer to deliver to his successor " all money belonging to his office," or which require the proper auditing officer to " see that all money belonging to the state is in the treasury " indicates an intent by the Legislature to fix the title of the fund in the State. But independent of such statute, there is great force in the hypothesis that the public and not the officer has title to the funds. There is an almost universal acquiescence in the rule that a public officer is not liable for money lost by the act of God or a public enemy. Even the courts which hold him for loss by failure of a bank of undoubted solvency at the time of deposit, concede that he is entitled to relief against loss from these causes.*^ If it was the officer's own money which was so lost, if the bond took the place of the funds and created the relation of debtor and creditor, it is manifest that the officer and his bond must respond to the full amount of the shortage, whatever the cause. Where the statute expressly prohibits the officer from niaking a loan and the funds are nevertheless invested on deposit upon the agreement to pay interest, the sum earned, although in vio- lation of the law, belongs to the treasury by better right than to the officer, since the former owns the principal by which it ac- crued and the latter does not, and furthermore to require it to bo turned in to the public treasury avoids the inconsistency of jiennitting an officer to deliberately violate the law and to profit by his own wrong. The position reached in nearly all the States now is, that the public officer is simply a custodian of the fund, and that the re- lation is in the nature of a bailment or trust, and not that of debtor and creditor, and that this relation exists, whether the 83 Post Sec. 184. OFFICIAL BONDS. 307 statute directs the mode of keeping the funds or not, and that, the officer must account for interest earned by public money.^* s* state vs. McFetridge, 84 Wis. 473; 54 N. W. 1; 54 N. W. 998. The Court in this case summa- rizes the various positions taken in this country upon the question as follows : "(1) Those which hold that the officer owns the public funds which came into his hands, and for that reason cannot be required to account for gains derived therefrom. (2) Those which hold that, although the officer is not the owner of the funds, if he unlawfully use the same for his own profit, his gains cannot be recovered in an action on his official bond. (3) Those which hold that he is not such owner, and that his liability to account for the public funds coming into his hands is ab- solute, or at least equal to the com- mon law liability of a common car- rier for the safe transportation and delivery of goods committed to it for carriage, and yet that for any profit or gain made by the officer out of the use of such funds he must account to the owner of the funds, whether the same was made lawfully or unlawfully. (4) Those which hold that if the ofiicer, not being such owner, makes gains out of the public fund by the lawful use there- of, such gains attach to the fund by way of accretion or increment and become a part of it, and belong to the owner of the fund, and, if not accounted for, an action at law may be maintained on the official bond of the officer, against him and his sureties, to recover such gains." Wilkes-Barre vs. Rockafellow, 171 Pa. 177; 33 Atl. 269; Richmond Co. Supv. vs. Wandel, 6 Lans. 33; af- firmed, 59 N. Y. 645; United States vs. Mosby, 133 U. S. 286; 10 S. Ct. 327; Hunt vs. State, 124 Ind. 306; 24 N. E. 887 ; State vs. Keim, 8 Neb. 63; Wheeling vs. Black, 25 W. Va. 266; Simmons vs. Jackson, 63 Tex. 428. In Illinois the statute recites that " all fees, perquisites and emolu- ments " shall be turned into the treasury, and it is held under this statute that sureties upon bonds of public officers are liable for interest earned with public funds. Hughes vs. People, 82 111. 78; Chicago vs. Gage, 95 111. 593. Where the bond recites an obliga- tion to pay over all money received " by virtue of his office " it was held that interest earned upon deposits made contrary to the express pro- visions of a statute which prohibits an officer from loaning public funds should not be regarded as being re- ceived " by virtue of his office," and therefore there could be no recovery for such interest upon the official bond. Renfroe vs. Colquitt, 74 Ga. 618. The doctrine that a trustee is accountable for interest earned by the trust fund is everywhere eon- ceded. Barney vs. Saunders, 16 How. 535, Orier, J.: "It is a well settled principle of equity, that wherever a trustee, or one standing in a fidu- ciary character, deals with the trust estate for his own personal profit, he shall account to the cestui que trust for all the gain which he has made. If he uses the trust money in speculations, dangerous though profitable, the risk will be his own, but the profit will inure to the cestui que trust." 308 THE LAW OF SUBETYSHII'. It is held, howei^er, in a number of carefully considered cases that in the absence of a statute charging the ofEc%r with the profits resulting from the use of public funds, that such officer is not liable, and that this rule will be applied even though the law makes it a felony for the officer to use the funds for his own profit. *° 86 State vs. Walsen, 17 Ool. 170; 28 Pac. 1119. The constitution of Colorado pro- vides that " the making of profit, directly or indirectly, out of State, County, City, Town or School dis- trict money, or using the same for any purpose not authorized by law, by any public officer, shall be deemed a felony." Tlie State Treasurer de- posited the funds in a bank and was paid large sums as interest, which he did not account for to the State, and this action was brought upon his bond to recover the inter- est BO earned with public funds; held — Hayt, C. J. . " It is contend- ed by appellant that the state treas- urer is a bailee or trustee of the public funds and as such subject to the common law liabilities of trus- tees. Absolute liability of the treas- urer and his sureties for all public moneys received by him as treasur- er, is fixed by tlie state constitution. In this respect the obligation of the treasurer is different from that of an ordinary trustee. Such a trus- tee is only held to the exercise of reasonable care with reference to the property. If the trust funds are stolen or otherwise lost without fault of the trustee, he is not liable. Not so, however, with the state treasurer. No amount of care will excuse him in case of loss by theft, fire, or by insolvency of the banks selected as depositaries; he must make the loss good to the state. He can only be discharged by paying over the money when required, and the sureties upon his official bond also assume this unusual liability. The language of our constitution which makes the treasurer absolute- ly liable, takes away an important right of a trustee. . . The constitution declares that the mak- ing of profit by him, either directly or indirectly, out of public funds, shall be deemed a felony and pun- ished as pinvi.Ipd by law. This pro- vision recognizes that a profit may, in fact, be made by the treasurer, although it declares the making thereof a felony to be punished as provided by law. It does not pro- vide that the profit to be made shall enure to the benefit of the state. . . . " It is not claimed that Walsen did not pay over when required all the money collected by him as treas- urer. The claim being that he mada a profit out of this money and that such profit belonged to the state. The treasurer was not required to loan the principal; if he did put it out and secure interest upon it as charged, or if he had invested it in business and made a profit, although such acts are felonies under our constitution, we are of the opinion that such profit cannot be recovered by the state under the law as it then existed." The same conclusion was reached in the case of Commonwealth vs. Godshaw, 13 Ky. L. Rep. 572; 17 S. W. 737, and the decision is based upon the ground that the relation OFFICIAL BONDS. 309 §178. Sureties not liable for defaults of principal in not per- forming Ms contracts with persons dealing with him in his official capacity. A liability upon an official bond arises only when the officer fails to perform duties enjoined upon him by law. A contract made by him in his official capacity, and within the scope of his authority, does not bind him personally, but creates a liability against the State or Municipality which he represents,*" and a of debtor and creditor must be deemed to exist between the officer and the State, and since he is abso- lutely liable on his bond to account for the fund, he may use it as his own. Shelton vs. State, 53 Ind. 331. See also Egremont.vs. Benjamin, 125 Mass. 15, Soule, J. : " It is apparent that the treasurer had not been wont to deposit moneys received by him official- ly with a bank, to the credit of the town, and to draw, as treasurer, against such deposit; in order to make the payments required of him from time to time, but had simply kept an account between himself and the town, which showed the amount due from him at all times. For that amount he was debtor merely, bound to pay it over whenever it should be called for in due course iif business during his term of office, iind at the expiration of his term, to pay it to his successor. He was riot a bailee of the moneys received. I lit an accountant, bound to pay hnid without loss, while the obligation to ' hold ' is to be shaded down into a contract to use due care and diligence in holding. But it pointedly rejects such inter- pretation of the requirement to hold the money, although, as in our own statute, the word is entirely un- qualified by safely, securely, or any word of like import. . While there are several cases wherein the statute or the bond sued on em- ployed the expression ' safely keep ' or ' keep safely,' there is, as I be- lieve, no reported case sustaining the distinction which seems to be relied upon by the majority of the court for the decision of this case. This view has been frequently insist- ed upon by counsel, but so far as the eases have come to my knowledge, has in every instance been rejected by the courts." In Kansas the statute requires the officer to " receive and take charge " of the funds without any qualifica- tions as to " safely " keeping, held in Rose vs. Douglass Tp., 52 Kan. 452 ; 34 Pac. 1046. " By accepting OFFICIAL BONDS. 325 without fault or negligence on the part of the officer, held that " public policy requires that every depositary of the public money should be held to strict accountability. Not only that he should exercise the highest degree of vigilance, but that ' he should keep safely ' the moneys which come to his hands. Any relaxation of this condition would open the door to frauds, which might be practised with impunity. A depositary would have nothing more to do than to lay his plans and arrange his proofs, so as to establish his loss, without laches on his part. Let such a principle be applied to our postmasters, collectors of customs, receivers of public moneys, and others who receive more or less of the public funds, and what losses might not be anticipated by the public ? ... As every depositary re- ceives the office with a full knowledge of its responsibilities, he can not, in case of loss, complain of hardship. He must stand by his bond and meet the hazards which he voluntarily in- curs." "' This holding by the highest tribunal in the land exercised great influence upon the courts for many years."^ It has not, however, always been followed by the more recent decisions. ^^* ihe office of township treasurer MeN. cock vs. Hazzard, 12 Gush. 112; assumed the duty of receiving and District of Taylor vs. Morton, 37 .safely keeping the money of the Iowa 550; Union Township vs. township and paying it out accord- Smith, 39 Iowa 9; Redwood Co. vs. ing to law. He or his sureties are Tower, 28 Minn. 45; 8 N. W. 907; bound to make good any deficiency State vs. Lanier, 31 La. Ann. 423. which might occur in the funds m State vs. Houston, 78 Ala. which come under his charge, wheth- 576 ; Cumberland vs. Pennell, 69 Me. cr they were lost in the bank or 357; Healdsburg vs. Mulligan, 113 otherwise." Cal. 205; 45 Pac. 337. 112 United States vs. Prescott, 3 There has been much comment by llow. 578. the courts and legal writers upon 113 United States vs. Morgan, 11 the case of United States vs. Thom- Uow. 154; United States vs. Da- as, 15 Wall. 337, and the conclusion Khiel, 4 Wall. 182 ; Boyden vs. Unit- generally reached is that in this «d States, 13 Wall. 17; United case the Federal Supreme Court States vs. Jones, 36 Fed. Rep. 759; abandons the extreme view taken State vs. Harper, 6 0. S. 608 ; Hal- in United States vs. Prescott, uM liert vs. State, 22 Ind. 125 ; Morbeck supra. The United States sued vs. State, 28 Ind. 86; Muzzy vs. Thomas and his sureties upon his Shattuck, 1 Denio (N. Y.) 233; bond as surveyor of the customs at Coram, vs. Comly, 3 Pa. 372; Han- Nashville. The bond was in the 326 THE LAW OF SUKBTYSHIP. The doctrine that loss resulting from irresistible superhuman force, such as a public enemy or by the act of God, will not be chargeable either to the officer or to his sureties, may now bo de- usual form and conditioned for the faithful discharge of the duties of the office. The officer was charged with a shortage and pleaded in de- fense that the moneys were seized by the authorities of the Confederate States against his will and consent, and by the exercise of military force, which he was unable to resist, and the question presented to the Court was whether the sureties were liable for the loss of public funds through seizure by an enemy of the govern- ment, and it was held that the sure- ties was not liable, and the distinc- tion is made between loss by rob- bery and theft and that which re- sults from an overruling force of a public enemy. " That overruling force arising from inevitable neces- sity, or the act of a public enemy, is a sufficient answer for the loss of public property when the question is considered in reference to an officer's obligation arising merely from his appointment, and aside from such a bond as exists in this case, seems almost self-evident." In reference to the liability upon the bond as a special contract cre- ating obligations in addition to those imposed by the law the learned Justice continues : " We do not ques- tion the doctrine so strongly urged by the counsel for the government, that performance of an express con- tract is not excused by reason of any- thing occurring after the contract was made, though unforeseen by the contracting party, and though be- yond his control — with the qualifica- tion, however, that the thing to be done does not become physically im- possible ft is contended that the bond, in this case, has the effect of such a special contract, and sev- eral cases of action on official bonds have been cited to support the prop- osition. Those principally relied on are the cases of the United States vs. Prescott and the recent cases of Dashiel,' Keehler, and Boyden in this court. It must be conceded that the language used by the court, not only in the case already referred to, but in some of the other cases cited, seems to favor the rule contended for. But in none of them was the defense of overruling necessity in- terposed. They were all cases of alleged theft, or robbery, or some other cause of loss, which would have been insufficient to exonerate a common carrier from liability. They all concur in establishing one point, however, of much importance, that a bond with an unqualified con- dition to account for and pay over public moneys enlarges the implied obligation of the receiving officer, and deprives him of defenses which are available to an ordinary bailee; but they do not go to the length of deciding that he thereby becomes liable at all events ; although expres- sions looking in that direction, but not called for by the judgment may have been used." Several members of the court while agreeing that the sureties should be exonerated, dis- sent on the ground that the case of the United States vs. Prescott, and other cases cited, should have been expressly overruled. Miller, J. (dissenting): "I do not believe now that on sound prin- ciple the hond should be construed to extend the obligation of the de- OFFICLVL BONDS. 327 duced from all the more receut cases as the prevailing rule both in the State and Federal Court. Such causes are considered as excluding all possibility o£ fraud or collusion with the officer. The distinction in principle, however, is not easily apparent, between an irresistible force applied by a public enemy in time of war, and a similar force applied by a highway robbery in time of peace. In both cases the officer is entirely without fault or negligence, and where collusion does not exist, is in each case upon exactly the same footing, and public policy does not generally require a party to be charged with the consequences of fraud merely because he is in a situation where he might have committed fraud. In at least one court the doctrine of absolute liability is ap- plied even thoiigh loss results from an act of a public enemy or an act of God."'* §185. Liability against judicial officers acting without jurisdic- tion. A judicial officer acts vnthout jurisdiction in undertaking to exercise judicial powers in matters wherein the law has not clothed him with authority to act- All acts of such officer which are not within the power con- ferred by law, and which are performed without jurisdiction either as to the subject matter or the person, are not merely erroneous but absolutely void, and if such acts result in damage to the party affected, the officer is individually liable, and his bond secures the performance of this liability. Such wrong- positary beyond what the law im- pie of public policy recognized by poses upon him, though it may con- the courts, or imposed by the law. tain words of express promise to which made the depositary of the pay over the money. I think the public money liable for it, when it true construction of such a promise had been lost or destroyed without is to pay when the law would re- any fault of negligence or fraud on quire it of a receiver, if no bond his part, and when he had faithfully had been given; the object of taking discharged his duty in regard to its the bond being to obtain sureties custody and safe keeping." for the performance of that obliga- lis State vs. Clark, 73 N. C. 2.55. tion. Nor do I believe that prior to See also Thompson vs. Board, 30 these decisions there was any princi- 111. 99. 328 THE LAW OF SUEETYSHIP. ful invasion of the rights of another constitutes a judicial officer a legal trespasser. Thus where a Justice of the Peace without authority of law issues a warrant of arrest, he is liable to an action in damages at the suit of the party illegally arrested.^^° Also where a magistrate assumes without jurisdiction to try an action for assault and battery ^" or to enforce a process founded upon a judgment or sentence in a case where no juris- diction is acquired.^^* It is held that by imposing a sentence of imprisonment where the law only gives the authority to impose a fine a magistrate is liable in damages, in case the sentence is executed.^^" Generally, however, no liability attaches to a judicial officer for acting in excess of jurisdiction. If the Court has jurisdic- tion of the person and the property affected, and his order or decree exceeds in extent that which he is authorized to make, it constitutes a judicial error and not a trespass, and the remedy is in review and not in damages. A Judge of the United States Circuit Court presiding at the trial of a person indicted for embezzlement in the postal service fined the prisoner $200.00 and sentenced him to imprisonment for one year. The penalty affixed by Congress for the offense was a fine of $200.00 or imprisonment for one year. Such judicial proceedings were thereafter had in the Su- preme Court of the United States as resulted in the discharge of the defendant from custody, and action was brought against the Judge to recover damages for false imprisonment and it was held " the case turns upon a question more easily stated than it is determined : Was the act of the defendant done as a judge ? Our best reflection upon it, aided by the reasonings and con- .(■Insions of many more cases than we have cited, has brought us •10 Truesdell vs. Combs, 33 0. S. "» Sheldon vs. Hill, 33 Mich. 171. ISG; Miller vs. Griee, 2 Rich. Law See also Patzaek vs. Von Gerich- (S. C.) 27. ten, 10 Mo. App. 424. In this case 117 Woodward vs. Paine, 15 Johns. the justice imposed a penal sentence 493. in a case where the law only con- iii* Bigelow vs. Stearns, 19 Johns. ferred jurisdiction to commit, and 39. he was held liable in damages. OFFICIAL BONDS. 329 to the conclusiou that as he had jurisdiction of the person and of the subject matter, and as his act was not without the in- ception of jurisdiction, but was one no more than in excess of or beyond jurisdiction, the act was judicial." ^^° The distinction between acts done in excess of jurisdiction, and acts done in the absence of all jurisdiction of the subject matter, has bedn pointed out in numerous cases where the ques- tion of the personal responsibility of the Judge has arisen. Where a Judge presiding at a criminal trial entered an order of disbarment against an attorney for his misconduct in a trial ; in an action for damages against the Judge, he was held not liable, although the order of disbarment was in excess of the jurisdiction of the Court, and even though the order was en- tered maliciously. The Court had some jurisdiction in the matter for which disbarment was entered, and had jurisdiction of the person of the attorney who was charged with misconduct in the presence of the Court., The act of the Court was there- fore considered judicial and subject to review, but not to an action for damages.^"^ 120 Folger, J., in Lange vs. Bene- each should have its due weight ■diet, 73 N. Y. 12. Continuing the yielded to it, for thus only is a safe learned judge says (p. 37.): "We equipoise reached." are not unmindful of the considera- 121 Bradley vs. Fisher, 13 Wal- tions of the protection of the liberty lace 335, Field, J. : " It is a gen- of the person, and of the staying of eral principle of the highest im- a, tendency to arbitrary exercise of portanee to the proper administra- power, urged with so much eloquence tion of justice that a judicial oflScer, by the learned and accomplished in exercising the authority vested counsel for the appellant in him, shall be free to act upon his Nor have we been disposed to out- own convictions, without apprehen- weigh those considerations, with sion of personal consequences to him- that other class which sets forth the self. Liability to answer to every need of judicial independence, and of one who might feel himself aggriev- its freedom from vexation on ac- ed by the action of the judge, would Wood vs. Parnell, 50 Ala. 546. .352 ; Ferguson vs. Kinnoull, 9 Clark isoGrider vs. Tally, 77 Ala. 422; & Fin. 251. Stone vs. City of Augusta, 46 Me. isi Crawford vs. Howard, 9 Ga. 127; Stone vs. Graves, 8 Mo. 148; 314; Brayton vs. Town, 12 Iowa Pike vs. Megoun, 44 Mo. 491; People 346; Thomas vs. Kinkead, 55 Ark. vs. Bush, 40 Cal. 344 ; State vs. Car- 503 ; 18 S. W. 854 ; Brown vs. Woav- riek, 70 Md. 586; 17 Atl. 559; Me- er, 76 Miss. 7; 23 South. 388. Teer vs. Lebow, 85 Tenn. 121 ; 2 S. I32 Lcwark va. Carter, 117 Ind. W. 18; Wilson vs. Marsh, 34 Vt. 206; 20 N. B. 119. 334 THE LAW OF SURET-YSUIP. it is said that since the goveruiuent is not itself responsible for the wrongs and misfeasance of public ofiBcers, to whom it has granted a franchise, that such officers in turn, who extend the franchise to a deputy, with the consent of the government, should not respond for the acts of negligence or wrong of such deputy where they are not themselves a party to it ; and further, on the grounds of public policy, it is urged that " competent persons could not be found to fill positions of the kind if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates in the discharge of duties, which it would be utterly impossible for the superior officer to discharge in person." ^^' §188. Liability on bond of a notary public. A Notary Public violates his duty and renders his sureties liable upon his bond when he uses his official franchise for a wrongful' purpose,^'* or for the negligent performance of a duty whereby another is injured.^^^ The sureties upon a Ifotary's bond are liable, although the officer acts without any intent to violate the law or his duty.^^' §189. Defenses in actions upon bonds of public officers. While the law does not favor forfeitures, and will not gen- erally entertain defenses which are merely technical, such as 133 Robertson vs. Siohel, 127 U. S. not appointed by the postmaster, 507; 8 S. Ct. 1286. In this case the and holds his office by appointment deputy collector of customs by his under the Civil Service rules of the negligence caused a loss to an owner government. Bryan vs. United of baggage arriving at the port of States, 90 Fed. Eep. 473. New York, and the collector was i3*Doran vs. Butler, 74 Mich. sued for damages. It was held that 643 ; 42 N. W. 273. he was not liable. i35 Lescouzeve vs. Ducatel, 18 La. See also Conwell vs. Voorhees, 13 Ann. 470; Curtiss vs. Colby, 39 0. 523 ; Scott Co. vs. Fluke, 34 Iowa Mich. 456 ; Scotten vs. Fegan, 62 317; Foster vs. Metts, 55 Miss. 77. Iowa 236; 17 N. W. 491. It is held that a postmaster is i^" Weintz vs. Kramer, 44 La. liable on his bond for the defaults Ann. 35; 10 South. 416; Heidt vs. fit his deputy, although the latter is Minor. 89 Cal. 115; 26 Pac. 627. OFFICIAL BONUS. y35 where the Statute requires the bond to be filed by a certain date, or to be approved by a certain ofiicer,"' and these re- quirements are not complied with, yet the equitable rules of construction in suretyship apply to official bonds, and although a non-conformance of Statute does not work a forfeiture, where no injury results to the surety, the bond will nevertheless not te enforced, except according to its exact terms. " Sureties stand upon the words of the bond, and if the words will not make them liable, nothing can. There is no construction, no -equity against sureties. If the bond can not have effect ac-- cording to its exact words, the law does not authorize the court to give it effect in some other way, in order that it may pre- vail." ''' , A ministerial officer, such as a Sheriff or Constable, charged with the duty of executing the mandate of a Court, is fully pro- tected in executing a process issued to him by a Court of proper jurisdiction and authority, and may generally defend against the consequences of executing such process by shovdng that he acted wholly within its requirements. In order that the process of the Court, shall suffice as a pro- tection to the officer serving it, there must be nothing on the face of it to indicate that it was without authority or jurisdie- lion."" If the process is fair upon its face, and does not disclose any lack of authority or other irregularity in its issue, it has been 137 Ante Sec. 164, 166. Mathews vs. Densmore, 109 U. S. 138 State vs. Medary, 17 O. 565. 216 ; 3 S. Ct. 126 ; Baker vs. Shee- 139 Sheldon vs. Van Buskirk, 2 N. han, 29 Minn. 235 ; 12 N. W. 704 Y. 473. Cogburn vs. Spenee. 15 Ala. 549 Hill vs. Haynes, 54 N. Y. 153. In Noreross vs. Nunan, 61 Cal. 640 this case the execution was void, but Watson vs. Watson, 9 Conn. 140 nothing appeared on the writ, where- Chipstead vs. Porter, 63 Ga. 220 hy the officer was in any way noti- State vs. McNally, 34 Me. 210 fied of the invalidity, and it was Lashus vs. Matthews, 75 Me. 446 held that the officer was protected Underwood vs. Robinson, 106 Mass, from the consequences of the wrong- 296 ; Hann vs. Lloyd, 50 N. J. L. 1 fill levy. 11 Atl. 346. 336 THE LAW OF SUEETTSHIP. held that the officer is protected in the serA'ice, even though he- knows that the issuing of the writ was irregular.^*" Where the jurisdiction or authority to issue the process is not apparent on the writ, the burden of showing the validity of the writ is upon the officer.^*^ An officer is protected by his writ, even though he knows that the person against whom the process was directed is privi- leged from its service.^^^ While it may be regarded as a set- tled rule that public officers are answerable in damages to any one who is specially injured by their omission to perform what the law requires of them, or by a careless or negligent per- formance of the duties of their office, — yet the law will excuse- the non-performance of a prescribed duty, where the officer is prevented by circumstances beyond his control from exercising the functions of his office, as where no funds are available with which to carry on the work which belongs to his office, and no- authority is vested in them to supply the funds. While a commissioner of public highways would be liable to a civil action for damages caused by his negligence in failing to keep in repair the roads and bridges under his control, such liability only attaches where he either has sufficient funds at his command to do the work, or has authority to raise the funds."^ An officer may refuse to act under the authority of an uncon- stitutional Statute, but the invalidity of the act can not be in- voked as a defense against his misconduct, where he treats the^ Statute as valid and assumes to act under it.^" 140 People vs. Warren, 5 Hill (N. Y. 297; Hover vs. Barkhoof, 44 N. Y.) 440. Y. 113; Bennett vs. Whitney, 94 N. Contra— Grace vs. Mitchell, 31 Y. 302. Wis. 533; Leachman vs. Dougherty, "*01ean vs. King, 116 N. Y. 355; 81 III. 324. 22 N. E. 559. The defense made hy "1 Chase vs. Ingalla, 97 Mass. the sureties in this case was, that 524; Smith vs. Keniston, 100 Mass. the tax levy was invalid, and that 172. the bond did not cover a default in 142 Smith vs. Jones, 76 Ms. 138; accounting for the funds which the Gassier vs. Fales, 139 Mass. 461 ; 1 officer had no right to receive. Held N. E. 922. — " While a tax collector may de- 14" Garlinghouse vs. Jacobs, 29 N. eline to proceed in the collection ot OFFICIAL BONDS. 337 Defenses resulting from an alteration of an official bond or a change in the duties of the officer, or an extension of the tenure of the office, have been considered in the earlier part of this chapter."' §190. Presumption that official duty has been performed. It would seem to be indispensable to the orderly adminis- tration of public affairs that the good faith of those charged with public duties should be presumed, and so far as the motive of the officer is concerned this presumption is conclusive in all cases where the officer acts within the letter of the law, or in other words, if the act would be valid if done in good faitli, all persons will be estopped from questioning the motives.^*" .It will also be presumed that the official act was valid and , regular if it purports to be 'Such on its face, and that the officer performed his duty as required by law. Where an index book showed an entry of the judgment, but the judgment roll or record could not be found, the index was considered as evidence that the judgment had been duly rendered and recorded, since it would be presumed that the- clerk would" not have indexed the matter unless the record h:\il been before him, the C!ourt saying: " The presumption is that a tax illegally levied, as any person under which he was required to act may refuse to recognize any illegal was unconstitutional. Ignorance or authority, or to obey an unconstitu- mistake in judgment as to the valid- tional law, he may do so only for his ity of a law, does not excuse an offi- own protection. Having collected a eer for its disobedience. Clark- vs_ tax, he can not then question the Miller, 54 N. Y. 528. right of the proper authority to re- "s Ante Sec. 169, 170, 171. ceive it, but must pay it over." For a discussion of the effect upon* Brunswick vs. Snow, 73 Me. 177 State vs. Harney, 57 Miss. 863 Webb Co. vs. Gonzales, 69 Tex. 455 the liability of the sureties upon an official bond, where the legislature- has extended the time within which 6 S. W. 781 ; Chandler vs. State, 1 the officer must make his settle- Lea (Tenn.) 296; Lincoln vs. Cha- raents, see Ante Sec. 87. pin, 132 Mass.. 470; Feigert vs. 1*0 Taylor vs. Alexander, 6 O. State, 31 O. S. 432. 144; Webster vs. Washington i\>.. The officer is not relieved from 26 Minn. 220 : 2 X. W. 697 ; Seaver performing his duty because he held vs. Pierce. 42 Vt. 325. »n honest belief tbat tho Stiihitc 338 THE LAW OF SURETYSHIP. no official person, acting luider oath, of office, will do aught which it is against his official duty to do, or will omit to do iiught which his official duty requires should be done." ^" But the courts will not iise the rule of presumption to supply fundamental jurisdictional defects, while there always arises a presumption that a public officer has performed his duty, there is no presumption as to his authority to do what he has undertaken. In accordance with this principle it was held that where school trustees omitted to give notice of an assessment of tax- iible property, that such omission was jurisdictional and invali- dated the tax and rendered the trustees liable as trespassers in making a levy upon the property for the collection of such tax, and that there was no presumption of notice arising from the fact that the levy was made, and that the rule of presumption as to the performance of official duty did not apply to such jurisdictional defect^*' §191. ilvidence against sureties on official bonds. A public officer by declaring his own default does not thereby preclude the Surety upon his Bond from showing the facts, such admission while binding upon the principal is not con- clusive against his Surety. Wo rule of evidence can be justified which permits a prin- cipal who has failed to keep faith with his Surety, and who 1*7 Mandeville vs. Reynolds, 68 N. intimately connected with the public Y. 534. peace, and the security of private United States Bank vs. Danridge, property, indulges its own presump- 12 Wheat. 69, Story, J.: "By the tions. It presumes that every man, general rules of evidence, presump- in his private and official character, tions are continually made, in cases does his duty, until the contrary is of private persons, of acts of the proved." most solemn nature, when those acts Washington vs. Hosp, 43 Kan. are the natural result or necessary 324; 23 Pac. 564; Davany vs. Koon, accompaniment of other circum- 45 Miss. 71; Owen vs. Baker, 101 stances. In aid of this salutary Mo. 407; 14 S. W. 175. principle, the law itself, for the pur- lis Jewell vs. Van Steenburgh, 58 pose of strengthening the infirmity of N. Y. 85 ; City of Albany, vs. McNa- evidence, and upholding transactions mara, 117 N. Y. 168; 22 N. E. 931. OFFICIAL BONDS. 339 has violated his oath of office, to furnish by direct declaration, the proof whereby the Surety is charged for his default. It is what the principal does and not what he may say he has done for which the Surety is liable, and unless these declara- tions are made at the time of the default they are of no higher character than mere hearsay, and the Surety is entitled to have the proof made by original evidence.^** If, however, the declarations are made at the time of the transaction to which they relate, and are contemporaneous with the default, and illustrate its character, they then become -4. part of the res gestae and are admissible against the Surety. ^^^ The entries which an officer makes in his books, showing balances against himself for which he does not account, are generally received as prima facie evidence in an action against his Surety, but the Surety is not estopped from showing that the statement of the books is incorrect. Where an officer holds office two successive terms, with sepa- rate sureties each term, and at the close of his first term his books show an apparent balance on 'hand, but which in fact had been previously converted, the statement of the books was held not to be an admission whereby the sureties upon the second Bond would be conclusively bound.^^' i*!> Hatch Ts. ElkinS;, 65 N. Y. mit the money to be then in his 489; Stetson vs. Bank, 2 0. S. 167; hands to the amount claimed, should , Le^is vs. Lee Co., 73 Ala. 148. be conclusive upon the sureties. We 150 Blair vs. Perpetual Insurance do not think so. The accounts ren- Co., 10 Mo. 559; Society vs. Fitz- dered to the department of money Williams, 84 Mo. 406; Casky vs. received, properly authenticated, are Haviland, 13 Ala. 314; Parker vs. evidence, in the first instance, of State, 8 Blackf. (Ind.) 292; Dobbs the indebtedness of the officer vs. The Justices, 17 Ga. 624; Me- against the sureties; but subject to Kim vs. Blake, 139 Mass. 593; 2 N. explanation and contradiction. They E. 157; Paxton vs. State, 59 Neb. are responsible for all the public 460; 81 N. W. 383. moneys vphich were in his hands at 151 Bissell vs. Saxton, 66 N. Y. the date of the bond, or that may 55. have come into them afterwards, and United States vs. Boyd, 5 How. not properly accounted for; but not 29, Nelson, J. : " It has been contend- for moneys which the officer may ed, that the returns of the receiver choose falsely to admit in his hands, to the treasury department after in his account with the government, the execution of the bond, which ad- The sureties cannot be concluded by 340 Tlli; T.AW OK SUIiKTVSIlII'. Admissions of the officer after tlie terminatiou of his office or after his removal are not admissible against his sureties/" ' Where the principal and Surety are sued jointly, the admis- sion of the principal being competent against himself can not be excluded, and being admitted as against him, will generally be considered against the sureties."^ §192. Same subject — Judgment against principal as evidence against the surety. Three distinct views are maintained upon the question of the effect to be given to a judgment against the principal in estab- lishing a liability against the surety. (a) That such judgment is not admissible against the surety. (b) That a judgment against the principal is prima facie evidence against the surety. (c) That such judgment is conclusive against the surety. The first of these positions is supported by the somewliat plausible argument that an official bond is different in its tenns from a bond of indemnity against a failure to perform a spe- a fabricated account of their prinei- Sooy vs. State, 41 N. J. I.. .394; pal with his creditors; they may al- Boone Co. vs. Jones, 54 Iowa 699; ways inquire into the reality and 2 N. W. 987; 7 N. W. 155. truth of the transactions existing See also Bagot vs. State, 33 Ind. between them." 262. Where it was held that the State vs. Ehoades, 6 Nov. 352; sheriff's return showing the collee- Mann vs. Yazoo City, 31 Miss. 574; tion of money on execution was con- Supervisors vs. Bristol, 99 N. Y. elusive against the sureties in an 316; 1 IST. E. S78; Hatch vs. Attle- action against them for a failure of borough, 97 Mass. 533; Lowry vs. the officer to pay over the money. State, 64 Ind. 421 ; McShane vs. isa Evans vs. State Bank, 13 Ala. Howard Bank, 73 Md. 135: 20 Atl. 787; Comm. vs. Brassfield, 7 B. Mon. 776. (Ky.) 447; City of St. Louis vs. Contra — Morley vs. Metamora, 78 Foster, 24 Mo. 141; Jenness vs. City HI. 394; Chicago vs. Gage, 95 111. of Black Hawk, 2 Colo. 578 ; Lacoste 593; Longan vs. Taylor. 130 111. vs. Bexar Co., 28 Tex. 420. 412; 22 N. E. 745. iss Magner vs. Knowles, 67 111. But see Schureman vs. People, 55 325; Montgomery vs. Dillingham. 11 111. App. 629. Where the books kept Miss. 647 ; Amherst Bank vs. Root, by a treasurer in a banking house 2 Met. 522; Parker vs. State, 8 of which he was sole proprietor were Blackf. (Ind.) 292. considered not conclusive upon the But see Root vs. Caldwell. 54 sureties. Iowa 432; 6 N. W. 695. OFKIUIAL BONDS. 341 cific act, such as a bond tliat a principal will pay a certain sum of money or satisfy a judgment. A finding against the prin- cipal On default of either of these conditions might well be considered prima facie evidence against the surety, or even conclusive, since the surety agreed that the principal would do the particular things of which he has been adjudged in default. But in official bonds, the sureties undertake that the princi- pal will perform his official duties, and it is necessary for a recovery against the surety to show what the duty in the par- ticular case was, and that such duty was not performed, and that, if a judgment to which the surety was not a party is ad- missible as prima facie evidence, the surety in meeting this, is placed in the position of being required to prove what the conduct of the princi])a] was, and then justify it with further ])roof concerning the duty of the principal, placing upon the defendant a burden which should rest upon the plaintiff. '^^ 154 A leading ease supporting this view is, Pico vs. Webster, 14 Cal. 203, in which the Court says: ■' There can be no doubt, that where a surety undertakes for the princi- pal, that the principal shall do a specific act, to be ascertained in a given way, as that he will pay a, judgment, that the judgment is eon- ciusive against the surety; for the obligation is express that the princi- pal will do this thing, and the judg- ment is conclusive of the fact and extent of the obligation. As the surety in such case stipulates with- out regard to notice to him of the proceedings to obtain the judgment, his liability is, of course, independ- ent of any such fact. It is upon this ground that the liability of bail is fixed absolutely by the judg- ment against the principal. But this rule rests upon the terms of the contract. In the casi- of official bonds, the sureties undertake, in .aeneral terms, that the principal will perform his official duties. They do not agree to be absolutely bound by any judgment obtained against him for official misconduct, nor to pay every such judgment. They are only held for a breach of their own obligations. It is a general princi- ple, that no party can be so held without an opportunity to be heard in defense. This right is not di- vested by the fact, that another par- ty has defended on the same cause of action and been unsuccessful. As the sureties did not stipulatg that they would abide by the judgment ;ittainst the principal, or permit him lo conduct the defense, and be them- selves responsible for the result of it, the fact that the principal has unsuccessfully defended, has no ef- fect on their rights. They have a ri^ht to contest with the plaintiff the question of their liability; for, to hold that they are concluded from this contestation by the suit against the sheriff, is to hold that they un- dertook for him that they would be lesponsible for any judgment 342 THE LAW OF STTEETYSHrP. It is also urged that a judgment against the principal shotild either b© deemed of no effect against the surety, or else be taten as conclusive; that there is no consistent middle ground of holding such judgment as being prima facie evidence and subject to rebuttal proof rendering the judgment of no effect."^ The record of a proceeding in amercement has also been held admissible against the sureties of the officer. ^^° §193. Same subject — View that judgment against the principal is prima facie evidence against the surety. The great preponderance of holding in this County is to the effect that, though a surety is not a party to a judgment against the principal, yet when a competent judicial tribunal has de- termined the fact that there has been a breach of official duty, such fact should be considered as established against the surety, until he meets the issue by competent proof showing the con- trary : that two judgments finding the same fact should not be required, except where the surety specifically elects to try the matter anew. The rule that a judgment against the principal is prima facie evidence against the surety, gives to the surety the right to ad- duce proof in rebuttal of all points on which the judgment against the principal depends. It is said by the Court in a leading case, " While the authori- ties are wide apart on the question it is evident that the decided weight is in favor of the doctrine that a judgment against the principal upon an official bond is prima facie evidence against, the sureties. By this rule the right is reserved to such sureties against him, wliich might be ren- 317; People vs. Zingraf, 43 HI. App. dercd by accident, negligence, or er- 337; Eodini vs. Lytle, 17 Mont. 448; ror, instead of merely stipulating 43 N. W. 501; State vs. Leeds, 31 that they would be responsible for N. J. L. 185. his official conduct.'' I's Lucas vs. The Governor, 6 Ala. Bailey vs. Butteriield, 14 Me. 112; 826. People vs. Russell, 25 Hun 524 ; Mc- loo Governor vs. Montfort, 23 N. Dowell vs. Burwell, 4 Rand. (Va.) C. 15. OFFICIAl, BONDS. 343! tJ interpose any defense they may have, and to be fully heard on the merits." ^^' §194. Same subject — View that judgment against the principal is conclusive against the surety. Where a judgment was entered against the principal for de- fault and thereafter a joint action was begun upon the bond against the principal and surety, it was held that the judgment 16' Beauchaine vs. McKinnon, 55 Minn. 318; 56 N. W. 1065. See also Moses vs. United States, 166 U. S. 571 ; 17 S. Ct. 682: Norris vs. Mersereau, 74 Mich. 687; 42 N. W. 153; Dane vs. Gilmore, 51 Me. 544; Carr vs. Meade, 77 Va. 142; State vs. Jennings, 14 O. S. 73; State vs. Cason, 11 S. C. 392; Heath vs. Shrempp, 22 La. Ann. 167; De Greiflf vs. Wilson, 30 N. J. Eq. 435 ; Connor vs. Corson, 13 S. D. 5.50; 83 N. W. 588. Stephens vs. Shafer^ 48 Wis. 54; 3 N. W 835, Taylor, J.: "The na- ture of the contract in official bonds is that of a bond of indemnity to those who may suflfer damages by reason of the neglect, fraud or mis- conduct of the officer. The bond is made with the full knowledge and understanding that in many cases such damages must be ascertained and liquidated by an action against the officer for whose acts the sure- ties make themselves liable; and the fair construction of the contract of the sureties is, that they will pay all damages so ascertained and liqui- dated in an action against their principal. This construction of the contract is most reasonable, and works no hardship against the sure- ties. . . The principal is the one who ought to be at the expense of the litigation, and who ought to pay the damages. He is also the one who has the knowledge of the' facts, and is certainly better pre^ pared to litigate the matter thanf the sureties, who are not supposeJ to have any knowledge of the trans- action. Certainly the defense is likely to be properly made by the principal, who has full knowledge- of the facts, and who is to suffer most severely in case of a decisiou adverse to him. In most cases of this kind, if the sureties were sued in the first instance, with their prin- cipal, the defense of the action would be made by such principal; and yet the judgment in such an action would necessarily -be conclu- sive upon all. Holding the judgment against the principal alone presump- tive evidence, as against the sure- ties, of the facts established by sucb judgment, can work no hardship so long as the right is reserved to them of showing that the defense in such action was not made in good faith, was fraudulent, collusive, or suffered to be obtained through mis- take as to the facts." Charles vs. Hoskins, 14 Iowa 471- A judgment in amercement against a, sheriff was held primat facie evidence against the sureties' in Fay vs. Edmiston, 25 Kan. 439. See also Fire Association of Phil- adelphia vs. Ruby, 49 Neb. 584; ft* N. W. 939. 344 THE :.Aw OF sur?:tysi-iip. against the principal was conclusive against the surety, and lljis was placed upon the ground that it ought in any event to "be conclusive against the principal, and that of necessity it Tiiust also be binding against the surety in a joint action, for < itherwise the whole controversy must be opened up even against -(he principal.^"^ The doctrine that the judgment against the principal is con- clusive against the surety does not, however, rest wholly upon the cases where a joint action is brought, but is also applied by .-ome courts where the contract is joint and several and the surety is sued alone. ^^^ One of the reasons urged in support of this view is that since ii judgment in favor of a principal is conclusive in favor of the surety, that it should be conclusive when against the princi- pal. It is well settled that no recovery can be had against the surety upon a bond if a judgment has already been entered in favor of the principal, or if a judgment has been rendered against the principal for a smaller amount than the sum claimed in the action against the surety, the plaintiff will be 158 Tracy vs. Goodwin, 5 Allen collusion, the judgment against him 409. " If no part of the judgment settles conclusively against his sure- lias been paid, the amount of it is ties, as well as himself, not only the the amount due from him on the right of the plaintiff to recover bond. And the sureties have so against him, but the amount of the made their bond that a joint judg- damages. If the bond had been ment must be rendered in this suit several as well as joint, there would against all the defendants. If they have been less embarrassment in were permitted to open the matter. treating the evidence as prima facie, and show that the plaintiff ought and permitting the sureties to offer not to have recovered his judgment. rebutting evidence." in whole or in part, their defense See also Dennie vs. Smith, 129 1 lUst enure to the benefit of the Mass. 143. jjrincipal as well as to theirs. We iso Masser vs. Strickland, 17 Serg. think it more in conformity with the & R. 354; Evans vs. Comm., 8 Watts true intent and spirit of their obli- (Pa.) 398; McMicken vs. Comm., gation to hold that it is a guaran- 58 Pa. 214; Cony vs. Barrows, 46 ty to the plaintiff for such amount Me. 497; Thomas vs. Markmann, 43 as he has legally established to be Neb. 823 ; 62 ,N. W. 206 ; Chamber- due to himself from the constable; lain vs. Godfrey, 36 Vt. 380. and that in the absence of fraud or OFFICIAL BONDS. 3'45" "limited in his recovery to tlie amount of the judgnient against the principal."" Where the judgment is iirst obtained against the surety, and afterwards in a separate action against the principal, the judg- ment is in favor of the defendant. The surety may be exon- erated by a perpetual injunction against the collection of the judgment."^ |195. Limitations upon actions against sureties on official bonds. Statutory provisions exist in all the States limiting the time within which an action can be brought upon an official bond, and as in the case of bonds, to secure private obligations, the statutes do not usually undertake to define when the cause of .action accrues.^'*^ The courts have experienced some difficulty in fixing a rule as to the time the statute begins to run, and there is much di- versity of holding in this respect. In a number of the States the courts have not adhered to the ■construction first announced. The prevailing rule seems to be that. the statute begins to run from the time of demand upon the officer for settlement, although a person having a claim against an officer for default will be required to assert his rights by making a demand within a reasonable time, and where no demand is made the law generally presumes a demand after .a lapse of time equal to the statutory limitations. Thus where a sheriff converted money of the plaintiff for his ■0"svn use in 1855, and no demand was made until 1867 and the action brought in 1868, it was held that a demand would be presumed in 1865, ten vears beinaj the statutory limitation, 160 United States vs. Allsbury, t against the sureties eould not ex- Wall. 186. In this ease a paymaster ceed that which had been ascer- was sued upon an alleged shortage tained to-be due from the principal of about $20,000.00, and judgment in the former action. was rendered against him for $10,- See also Brown vs. Bradford, 30 000.00. Ga. 927. In a subsequent action against the isi Ames vs. Maclav. 14 Iowa 281. sureties it was held thot the liabilitv '62 Ante Sec. 15fl. 346 THE LAW OF SURETYSHIP. and the action could thereafter he hrought at any time before 1875."" lea Keithler vs. Foster, 22 O. S. of limitation is approved in Thrall 27. vs. Mead, 40 Vt. 540. Tlie presumption of demand at the Codman vs. Rogers, 10 Pick. 112. expiration of the statutory period CHAPTER VIII. JUDICIAL BONDS. Sec. 196. Suretyship in the Application of Legal Kemedies. See. 197. Bonds for Stay of Execution or Appeal. Sec. 198. Statutory Requirements as to Appeal or Stay Bonds. Sec. 199. Irregularities or Defects whereby Bonds are Invalidated. Sec. 200. Immaterial Defects in the Contract. Sec. 201. Failure to Perfect the Appeal. Sec. 202. Conditions upon which Appeal or Stay Bonds become Payable. Sec. 203. Same Subject — Affirmance by failure to Prosecute Appeal. Sec. 204. As to when Action may be brought upon Bond for Appeal. Sec. 205. Measure of Damages in an Action upon an Appeal or Stay Bond. Sec. 206. Successive Appeal Bonds. Sec. 207. Defenses in Actions upon Appeal Bonds — Estoppel. Sec. 208. Appeal from a Justice Court. Sec. 209. Bonds to Procure Injunction. Sec. 210. When Action for Damages upon an Injunction Bond Accrues. Sec. 211. Construction of Bonds to Procure Injunction. See. 212. Defenses of Sureties upon Injunction Bonds. Sec. 213. Measure of Damages for Breach of Injunction Bond. Sac. 214. Same Subject — Defendant's Expenses in Procuring a Dissolu- tion of Injunction. Sec. 215. Attachment Bonds. Sec. 216. Attachment Bonds not Forfeited for Irregularities of Execution or Defects in Form. Sec. 217. Whether Damages for Malicious Prosecution are Recoverable upon Bond to Procure Attachment. Sec. 218. Forthcoming or Redelivery Bonds. Sec. 219. Bonds to Discharge Attachment. Sec. 220. When Action Accrues upon Bonds in Attachment. Sec. 221. Good Faith of the Plaintiff, or Probable Cause for Attachment not a Defense in Actions upon Bonds. Sec. 222. Sureties Estopped from Questioning the Regularity of the Pm- ceedings out of which their Liability Arises. Sec. 223. Exoneration of Sureties in Attachment Proceedings. Sec. 224. Attachment Bonds are Available in any Court to which the Case is taken on Appeal. Sec. 225. Measure of Damages in Actions upon Attachment Bonds. Sec. 226. Replevin Bonds. Sec. 227. Conditions of Bonds in Replevin. Sec. 228. Bonds in Replevin which are Void. Sec. 229. What Constitutes a Breach of a Replevin Bond. 3i1 See. 239. See. 240. See. 241. See. 242. 3-1-8 THE LAW OF SUKETYSHIP. See. 230. Sureties upon Replevin Bonds are Coneludecl by the Final Order in the Replevin Action. Sec. 231. Measure of Damages in Action upon Replevin Bonds. Sec. 232. Defenses in Action on Replevin Bonds. Sec. 233. Bonds given in the Course of the Administration of Estates of Deceased Persons. See. 234. Duties for which Executors and Administrators are Chargeable on their Bonds. See. 235. The Scope of the Administration Bond Covers all Assets and Equities of the Estate. Sec. 236. Successive Administration Bonds are Cumulative. Sec. 237. As to whether Judgment or Ordei- of Court against the Prin- cipal is Necessary to a Cause of Action on the Administration Bond. See. 238. The Sureties upon the Bond of an Administration are Concluded by Judgment against the Principal. Defenses to Action upon Administration Bonds. Who may Maintain Action on Administration Bonds. Bonds of Guardians — Scope of Liability. Settlement of Guardian's Accounts — Release of Sureties on the Bond. See. 243. An Adjudication Against the Guardian is Conclusive against the Sureties. Bonds given in the Course of Insohiiiiy Proceedings. Bail Bonds. Conditions in Bail Bonds — Time ot Appearance. Same Subject — Place of Appearanee. Defenses against Bail Bonds. . Discharge or Exoneration of Bail. §196. Suretyship in the application of legal remedies. It is somewhat of an anomaly for the law to require a party to a legal action to indemnify his opponent against damages resulting from such proceedings. The law itself having authorized the bringing of an action and made provision for the review in a higher court of the questions made at the trial, any limitation upon the use of the courts to effectuate these privileges is inconsistent with the theory of abstract right, for the ^naintenance of which courts are created. There are, however, numerous provisions of the law which limit the bringing of an action, or the review of a judgment, except upon the condition that the plaintiff indemnifies the Sec. 244. Sec. 245. See. 246. See. 247. Sec. 248. See. 249. JUDICIAL BONUS. 349 other party against the loss which may result to him as a nec- essary incident to the proceeding. The anomaly is more marked in the matter of the enforce- ment of such provisional remedies as attachment or injunction, where the damages, if any, flow directly from an order or judg- ment of the court, and where the party is required to give lx)nd to secure the payment of the damages that may arise in case the order or judgment of tlie court should turn out to be wrong. So also, although the Constitution creates courts and opens their doors for all citizens to invoke their decrees, yet in many cases the statutes require a party to enter into an undertaking in suretyship before starting his action, frequently requiring him to secure the costs of litigation, even though he finally pre- vails against his opponent, in case the latter, although adjudged to pay costs, is insolvent. These requirements of the law have been engrafted upon our procedure from tirrte to time as the necessity has developed. The liberal extension of the right to invoke legal remedies hab made imperative some check against the abuse of the privilege ; without requirements to secure the costs of an action, vexatious litigation, actions begun in bad faith and without even a prob- able cause, have resulted, which impose burdens on the courts and tlie officers who serve their processes, which were not con- templated by the Constitution. The common law made no provision for bonds in stay of exe- cution, and the filing of a writ of error in the Reviewing Court of itself operated as a stay or supersedeas of execution from the time of its allowance or recognition by the court to which it was directed. In England a writ of supersedeas was issued from the Re- viewing Court to the Inferior Court, stopping all further pro- ceedings in the latter court, and without any security being given to the defendant in error. But these proceedings in error came to be sued out merely for the purpose of delay, and Acts of Parliament were passed requiring security in certain 350 THE LAW OF SUliiSTYSlUP. cases before the writ should operate as a supersedeas.* Later the statute extended the provision to all eases." The Federal Judiciary Act of 1789 provides that a party prosecuting error and an appeal shall give good and sufEcient security, that the plaintiff in error, or the- appellant, shall pros- ecute his writ or appeal to effect, and if he fail to make his plea good " shall answer all damages and costs." " The language of this statute as well as the controlling prece- dents in England from which the procedure was adopted, seem to indicate that the bond provided for was merely to secure the costs in the appellate court and the damages incident to delay, . with no provision for securing the judgment. The United States Supreme Court, however, construed the " damages " to include the payment of the original decree,* without any specific provision in the statute relating to the pay- ment of the judgment as is found in nearly all the State stat- utes.'' 1 Statute of 3 James I., c. 8. This statute required security only in cases of proceedings to reverse judg- ments upon a bond, or contract, or a, debt for rent. 2 13 Car. II., e. 2; 16 and 17 Car. II., c. 8. s Sec. 1000, U. S. Statutes. * Catlett vs. Brodie, 9 Wheat. 553, Story, J.: "The judiciary act of 1789, ch. 20, s. 22, requires every judge or justice, signing a citation on a writ of error, to take good and sufficient security that the plaintiflF in error ' shall prosecute his writ to effect, and answer all damages and costs if he fails to make his plea good.' A writ of error lodged in the clerk's office within ten days after the rendition of judgment, operates as u. supersedeas of execu- tion ; and the question arises, wheth- er, in eases where it operates as a supersedeas, the security taken by the judge or justice ought to be sufficient to secure the whole amount of the judgment. It has been sup- posed, at the argument, that the act meant only to provide for such damages and costs as the Court should adjudge for the delay. But our opinion is, that this is not the true interpretation of the language. The word ' damages ' is here used, not as descriptive of the nature of the claim upon which the original judgment is founded, but as descrip- tive of the indemnity which the de- fendant is entitled to, if the judg- ment is affirmed. Whatever losses he may sustain by the judgment's not being satisfied and paid after the affirmance, these are the dam- ages which he has sustained, and for which the bond ought to give good and sufficient security." s The statute in Ohio provides that no proceedings to reverse, va- cate, or modify a judgment or an order rendered in an inferior court, JTJDICIAX BONDS. 35 i Again it was found that hasty orders of injunction resulted in damages to the defendant for which he was unable to get re- dress, even from the plaintiff himself, as the latter had entered into no contractual relation with the defendant to respond in damages, and the cases in which the courts were misled by false or mistaken allegations in the pleadings, imposed special bur- dens on the defendant, which induced the Courts of Equity, of their own motion, and without any directing statute, to re^ quire the applicant for these extraordinary remedies to furnish an undertaking for the protection of the defendant, and to en- able the court to punish the plaintiff in case his allegations were unsupported by proof." This form of judicial bond, at first resting in the discretion of the court, became later the subject of rules of chancery such as that laid down in general orders by the Chancellor of New shall operate to stay execution, un- less the clerk of the court in which such judgment or order is made take a written undertaking, with suffi- cient surety conditioned to pay the judgment if it be affirmed in whole or in part. R. S. 0., Sec. 6718. Or if the proceeding is an appeal whereby the case is retried on new €vidence in the Appellate Court the statute provides that the bond shall be conditioned that the appellant shall abide and perform the order and judgment of the Appellate Court, and shall pay all money, costs, and damages which may be required of or awarded against him by such Court. E. S. O., Sec. 5231. " Marquis of Downshire vs. Lady Sandys, 6 Ves. Jr. 107; Wilkius vs. Aikin, 17 Ves. Jr. 422. No act of Congress has ever been passed authorizing the Federal Courts of the United States to re- quire an undertaking from an appli- cant for an injunction, and the re- quirement of an injunction bond in that court rests in the discretion of the judge, and the matter is govern- ed by the principles and usages of equity, and the court may not only grant the injunction without a bond, but having required a bond, may nullify it by its decree, where it appears to the Court that the bond should not have been demanded. Russell vs. Farley, 105 U. S. 441, Bradley, J. . " Since the discretion of imposing terms upon a, party, as a condition of granting or withhold- ing an injunction, is an inherent power of the Court, exercised for the purpose of effecting justice between the parties, it would seem to follow that, in the absence of an imperative statute to the contrary, the courts should have the power to mitigate the terms imposed, or to relieve from them altogether, whenever in the course of the proceedings it ap- pears that it would be inequitable or oppressive to continue them. Besides, the power to impose a condition im- plies the power to relieve from it" 352 THE LAW OF aUKETYSHIP. York in 1830, which provided that where no special provision- was made by law as to security, the Vice-Chancellor, who al- lowed the injunction, should take from the complainant a bond to the party enjoined, either with or without sureties, .in such sum as might be deemed sufficient, conditioned to pay the dam- ages which the defendant might sustain by reason of the injunc- tion, if the court should decide that the complainant was not , entitled to the relief.' This rule was subsequently carried into the New York Code of Procedure and has in general been followed in the codes and systems of other States, except that the discretion as to accept- ing bonds without sureties has for the most part, been removed. §197. Bonds for stay of execution or appeal. In most jurisdictions a review of the higher court of the rec- ord made by the lower court is denominated an appeal, and a bond to stay execution or supersedeas is termed also an appeal bond, and while the Appellate Court passes upon the facts as well as thft law, it is confined to the facts addticed in the lower court. ° The term " appeal bond " in some courts of general jurisdic- tion is a'icordingly used interchangeably with supersedeas. In some courts of limited jurisdiction, such as a magistrate's courts an appeal bond generally vacates the judgment, and provides a new trial in the Appellate Court." ' 1 Hoff. Ch. Pr. 80. appeal and supersedeas bonds aifr Cayuga Bridge Co. vs. Magee, 2 not interchangeable terms. Mason Paige 116-22. vs. Alexander, 44 0. S. 328; 7 N. E, 8 Sharon vs. Hill, 26 Fed. Rep. 435. 345. » Some confusion is likely to arise In Ohio an appeal is distinct from in failing to discriminate between a proceeding in error, and an ap- an appeal — which is a retrial, where peal vacates the judgment or decree, the case goes up from a court of and the case is retried in the Appel- limited jurisdiction, and an appeal late Court on the same or substi- which is a proceeding in error upon tuted pleadings, and upon such evi- the record made in a court of gen- dence as may be offered, and the eral jurisdiction. The undertaking trial is in all respects the same as given in the former is a necessary if it had not been carried on in the step' in perfecting the appeal, and i» lower court. Under this practice, governed usually by strict statu- JUDICIAL BONDS. 355 An appeal, whether in the nature of a writ of error, or a re- trial, is usually conferred by Statute as a matter of right, and the remedy, however groundless, except in certain special pro- ceedings, can not be denied/" tory conditions as to time of filing, and the amount of penalty, whereas an appeal which is in the nature of a writ of error, does not require an undertaking as a condition of a hearing in the reviewing court, the undertaking being merely to stay execution, and wholly disconnected from the right to prosecute error, the amount of the bond and sometimes even the requirement of any bond being discretionary in the trial court. In its origin the proceeding in appeal was a technical practice, bor- rowed by equity from the civil law, by which the whole case was tried de novo upon new evidence, and without any reference to the conclu- sions reached in the inferior court, and was confined to causes in equity, ecclesiastical, and admiralty juris- dictions. But the modern statutory appeal, with the exceptions hereto- fore noted, differs only from the common law writ of error, in that the latter submits nothing for re- examination in the reviewing court but the law, while an appeal reviews both the law and the facts. State vs. Doane, 32 Neb. 707. There is, however, no uniformity in the statutory appeal provided for in the several States. In North Carolina only matters of law are reviewed upon appeal, except where the action was originally cognizable in equity, in which case findings of fact are reviewable. Baker vs. Bel- vin, 122 N. C. 190; 30 S. E. 337. The same effect is given appeal in Connecticut. White vs. Howd, lif! Conn. 264. While in Nebraska the higher court re-examines on appeal the whole ease, both in the law and facts. Neb. L. & T. Co. vs. Lincoln, etc., R. R. Co., 53 Neb. 246; 73 N. W. 546. See also Ex parte Henderson, 6 Fla. 279; Schirott vs. Philippi, 3 Oregon 484. The use of the term appeal in a double sense, sometimes meaning a, retrial, and again a, review, some- times embracing a review of both the law and the facts, and again a review only of the law questions, is- further complicated by the terms by which certain reviewing courts are designated. The court of last re- sort in Kentucky, Maryland, and- New York is called " Court of Ap- peals." In Virginia, the " Supreme- Court of Appeals." Intermediate- courts in Illinois, Indiana and Tex-- as, are termed "Appellate Courts," and the intermediate Federal Court " The United States Circuit Court of Appeals," and yet each of these courts entertain writs of error and' statutory appeal, and are not in a technical sense courts of appeal ex- clusively as their names would in- dicate. 1" McCreary vs. Rogers, 35 Ark.. 298 ; Ricketson vs. Compton, 23 Cal, 636 ; State vs. Judge of Superior Dist. Ct., 28 La. Ann. 547 ; People vs> Knickerbocker, 114 111. 539; 2 N. E. 507; Ridgely vs. Bennett. 81 Tenn. 206. 354 THE LAW OF 8UEETYSHIP. J 188. Statutory rec[uireinents as to appeal or stay bonds. The Statutes requiring bonds in appeal generally limit the time within which such bonds must be filed, and the Appellate Court acquires no jurisdiction in appeal, except upon a strict compliance with the Statute in this respect.^^ Although it is sometimes held that a substantial compliance with the law is sufficient.^'' The provisions of Statute that bonds shall be approved by a designated ofiicer are imperative, and the appeal may be dis- missed for a non-compliance with such Statute,^^ although the act of the ofiicer in refusing to approve the bond may be re- viewed.^* The appeal or stay bond must be conditioned according to law, otherwise the appeal can not be entertained. Where a Statute requires an appeal bond to recite that the " appeal shall be prosecuted with effect," and this condition is omitted, the appeal will be dismissed on motion,^° but the use of language 11 Mueller vs. Kelley, 8 Col. App. 527; 47 Pae. 72; Killian vs. Clark, in U. S. 784; 4 S. Ct. 686; Worm- ley vs. Wormley, 96 111. 129; Lengle vs. Smith, 48 Mo. 276; Canfield vs. City of Erie, 21 Mich. 160; Smith- wick vs. Kelly, 79 Tex. 564; 15 S. W. 486; Pace vs. Fieklin, 76 Va. 292; Holeomb vs. Sawyer, 51 Cal. 417. 12 Perkins vs. Shadbolt, 44 Wis. .574. In this case the bond was not approved by the Court until a day after the expiration of the statutory limit, and it was considered a, sub- !itantial compliance with the law. In North Carolina the Statute yives the Court discretion to extend the statutory limit where it ap- pears that the delay will not preju- dice the appellee. Harrison vs. Hoff, 102 N. C. 25; 8 S. E. 887. 13 Ingram vs. Greenwade, 12 Ky. L. Rep. 942; Keen vs. Whittington, 40 Md. 489; Gross vs. Bouton, 9 Daly (N. Y.) 25; Fogel vs. Dua- sault, 141 Mass. 154; 7 N. E. 17; Stebbins vs. Niles, 21 Miss. 307; Travis vs. Travis, 48 Hun 343 ; 1 N. Y. S. 357. A failure to approve the bond ac- cording to law will not discharge the sureties, where the bond is acted upon, the provision of approval be- ing considered as for the beneiit of the obligee, and his failure to object is deemed a waiver. Irwin va. Crook, 17 Col. 16; 28 Pac. 549. 14 Marsh vs. Cohen, 68 N. C. 283; Earle vs. Earle, 49 N. Y. Super. Ct. 57. 15 Swan vs. Hill, 155 U. S. 394; 15 S. Ct. 158. In Missouri the Statute require* the bond in appeal to recite a con- dition binding the obligor to comply with the decision of " any Appellat* Court," and it was held insufficient JUDICIAL BONDS. 355 wMcli means substantially the same as the words employed in the Statute will be a sufficient compliance with the Statute.^' A statutory requirement for the justification of sureties must be complied with, or otherwise the appeal is subject to dis- missal.^' If the appeal is not dismissed, the sureties upon the bond will not be exonerated, because of a non-compliance with the Statute as to justification. In New York the code provides that " an undertaking upon an appeal shall be of no effect unless it be accompanied by an affidavit of the sureties that they are each worth double the sum specified therein." And it was held that although a failure to comply with this requirement of the Statute would make the appeal irregular and would be a ground for dismissal, yet if the appeal was not dismissed, the irregularity would be no de- fense to the sureties.^' It is held that an appeal will not be dismissed because of a failure of the sureties to justify where it is shown that th« security is in fact sufficient.^" While a bond, if given for a smaller sum than required by Statute or the order of the Court is irregular, and constitutes ground for dismissal of the appeal,^" yet it is not such a defect as will operate as a discharge of the surety if the appeal is prosecuted without objection.^^ to state in the bond that the appel- 1022; Gay vs. Parpart, 101 U. S. lant would comply with the decision 391 ; Carmiehael vs. Holloway, 9 of "The St. Louis Court of Ap- Ind. 519; Robinson vs. Brinson, 20 peals." American Brewing Co. vs. Tex. 438; Kasson vs. Brocker, 47 Talbot, 125 Mo. 388; 28 S. W. 585. Wis. 79; 1 N. W. 418. See also Drinkwine vs. City of I'Harshaw vs. McDowell, 89 N. Eau Claire, 83 Wis. 428; 53 N. W. C. 181; Peneinse vs. Burton, 9 Ore- 673 gon 178. "Riley vs. Mitchell, 38 Minn. 9; is Hill vs. Burke, 62 N. Y. 111. 35 N. W. 472. The bond in this See also Murdock vs. Brooks, 38 case recited that the appellant would Cal. 596 ; Moflfat vs. Greenwalt, 90 prosecute her appeal " with due dili- Cal. 368 ; 27 Pac. 296. gence to a final determination," and !» St. Louis, L. & D. Ry. Co. vs. it was held to be a compliance with Wilder, 17 Kan. 239. the statutory condition to " prose- -" Beaird vs. Russ, 32 La. Ann. cute his appeal with effect." 304; Scott vs. Milton, 26 Fla. 52; See also Anderson vs. Meeker Co. 7 South. 32. Com'rs, 46 Minn. 237 ; 48 N. W. " Anderson vs. Rhea, 7 Ala. 104. 35« THE J,A\V or SUKETYSHIP. The requirement of a Statute for a bond in appeal to be executed in double the amount of the decree and costa, will not be construed to invalidate the appeal where the penalty named exceeds the statutory requirement.^^ Statutes requiring the residence of the surety to be inserted in the bond, will, if not complied with, justify the approving officer in rejecting the bond, or possibly be ground of dismissal of the appeal, but the omission will not discharge the sureties.''* Appeal or stay bonds are not invalidated because the persons signing as sureties are prohibited by law from signing in that Dore vs. Covey, 13 Cal. 502. In this case the Court said that the statutory provisions as to the amount of the penalty are for the benefit of the obligee, and his failure to object must be considered a waiv- er. " Just as if the statute declared that no judgment should be ren- dered without service of process; but the defendant might waive the process or service. This waiver was made by the plaintiff below. He considered the appeal as regularly made, made no motion to dismiss, issued no execution, and suffered the undertaking to have the full effect of a regularly executed instrument." Cain vs. Harden, I Oregon 360; Jenkins vs. Skillern, 5 Yerg. (Tenn.) 288; Landa vs. Heermann, 85 Tex. 1; 19 S. W. 885; Sears vs. Seattle Consol. St. Ey. Co., 7 Wash. 286; 34 Pac. 918. 22Bentley vs. Dorcas, 11 0. S. 398, Gholson, J. : " An objection is made to the form of the appeal bond, that the penalty is not pre- cisely double the amount of the judgment or decree In an early case, it was said as to such a bond, that; ' There is no case where a bond fairly and regularly executed, and comprising substan- tially all the reqxiisites of the stat- ute, has been adjudged void because it departed, in some one or more particulars, from the exact words of the statute authorizing it to be taken. It has been the uniform ob- ject of our cdurts, to support bonds executed under the provisions of the law, where, by a reasonable inter- pretation, such bonds can be made to meet the intention for which they were required and taken. " ' Where a party has had all the advantages of making the bond, the court can not aid him to avoid his obligations, by adopting strained and rigid maxims of construction." Gardiner vs. Woodyear, 1 Ohio 170, 177.' . Assuming the costs to be correctly stated, the penalty of the bond exceeds double the amount of the decree and costs by a few cents. To hold that this error in ascertaining the penalty rendered the bond invalid, would, in view of the principle above stated, be un- reasonable." See also Smith vs. Whitaker, 11 111. 417. Contra — Johnson vs. Goldsbor- ough, 1 Harr. & J. (Md.) 499. 23 Dore vs. Covey, 13 Cal. 502; Murdock vs. Brooks, 38 Cal. 596; Van Deusen vs. Hayward, 17 Wend. 67. JUDICIAL BONDS. 35T capacity. Rules of Court, or Statutes in many States, prohibit attorneys and non-residents from being accepted as sureties on judicial bonds. The approval of such prohibited parties as sureties is ground for dismissal of the appeal,^* but the sureties will be held if the appeal is prosecuted. ^^ Where the Statute provides that the Court shall fix the amount of the penalty in the bond, and the parties themselves fix the amount and the bond is executed accordingly, the statu- tory requirements will be deemed waived..^" But if the bond recites that the amount of the penalty was fixed by the Court, all parties in interest will be estopped from showing otherwise."' Where the Statute requires more than one surety, a bond not conforming to this provision will be valid and binding upon the sole surety, if the purpose for which the bond was executed has been accomplished.^' §199. Irregnlarities or defects whereby bonds are invalidated. The distinction must be noted between such informalities in the Bond as merely give to the obligee the right to have the appeal dismissed, and those defects which invalidate the Bond itself. The illustrations cited in the preceding section show that while a non-compliance with statutory requirements will be ground for the dismissal of the appeal, the bond itself is not on this account invalidated, in case the appeal is prosecuted. Since the obligor would be clearly estopped from pleading a non-compliance to statute, he having had all the benefit of an appeal. If, however, the undertaking lacks the formality of a valid 2* Sedgwick vs. Dawkins, 15 Fla. D. 115; 82 N. W. 507; Braithwaite 572; Schuek vs. Hagar, 24 Minn. vs. Jordan, 5 N. D. 196; 65 N. W. 339 ; Ulrich vs. Farrington Mfg. Co., 701. 69 Wis. 213; 34 N. W. 89. 27 0gden vs. Davles, 116 Cal. 32; 25MeKelIar vs. Peck, 39 Tex. 381; 47 Pac. 772. UUery vs. Kokott, 61 Pae. Rep. 2s Cochran vs. Wood, 29 N. C. (Col. App.) 189. 215; Allen vs. Kellam, 94 Pa. 253; 2s Johnson vs. Noonan, 16 Wis. B. & 0. Ey. Co. vs. Vanderwarker, li87 ; Coughran vs. Sundback, 13 S. 19 W. Va. 265. 358 THE LAW OF SUBETYSHIP. contract it can not be enforced, even though the appellant by reason of the acceptance of such bond has had all the benefit of the stay of execution provided for by law. Where the bond contains no defeasance clause avoiding liabil- ity in case the appellant performs the order of the court, it is held that the undertaking is invalidated; such instrument is not a bond and can not be enforced.^" So also where the name of the judgment creditor was omitted, and the name of another appellee was inserted, the latter being a stranger to the record, no recovery was had.'" A bond vdll be void for want of consideration where there ia no requirement of the law for an appeal bond. Thus where an administrator is exempted from giving a bond in appeal by reason of having already given an adequate bond as adminis- trator, a bond executed notwithstanding the exemption will be void for want of consideration.*^ Also where there is no necessity for a supersedeas by reason cf an appeal bond operating as a stay of execution. The super- sedeas will be void for want of consideration.'^ If an undertaking is given in pursuance of statute, and to attain a purpose authorized by statute, it is supported by suiB- cient consideration, but the absence of such authority in the law leaves the bond without consideration and void.*' If the judgment appealed from is a nullity, as where the court rendering it had no jurisdiction, the bond will be want- ing in consideration.^* 29 Waller vs. Pittman, 1 N. C. Co. vs. Weber, 4 N. D. 135; 59 N. 237. W. 529. 30 Block vs. Blum, 33 111. App. 3* Hesaey vs. Heitkamp, 9 Mo. 643. App. 36. 31 Buttlar vs. Davis, 52 Tex. 74. But see Co-operative Asan. vs. But see Sehumeker vs. Steide- Rohl, 32 Kan. 663; 5 Pac. 1. Hold- mann, 8 Mo. App. 302. ing that the sureties upon a judicial 32Powers vs. Chabot, 93 Cal. 266; bond are estopped from denying 28 Pac. 1070. jurisdiction. To the same effect see 33 Ashley vs. Brasil, 1 Ark. 144 Steele vs. Crider, 61 Fed. Rep. 484 Brounty vs. Daniels, 23 Neb. 162 Stephens vs. Miller, 3 Ky. L. Rep. 523. If the trial is had on appeal the 36 N. W. 463; Travellers Insurance validity of the judgment appealed JUDICIAI. liliKhS. 359 It has been held that the exactiou of a bond in appeal which contains conditions more onerous than the law requires, ren- ders the bond wholly void/' This rule can certainly be upheld to the extent of the excessive requirements. A bond with a condition to pay judgment and costs when the latter only is required, is void for want of consideration as to the judgment.^" If the appeal bond recites an appellate court which has no ex- istence, the bond has been held void.'^ The ordinary defenses of suretyship apply to appeal bonds, and an unauthorized material alteration of the bond will dis- charge the sureties.^" Where the act of a corporation becoming surety upon an ap- peal bond is ultra viros, the doctrine of estoppel does not apply, and the want of contractual capacity is considered a defense/" §200. Immaterial defects in the contract. The law does not favor forfeitures, and unimportant defects in the form of the contract which do not of themselves affect the contractual relation of the parties will not be considered. It is of no material consequence that the wrong date of the judgment is set out in the bond, if the contract in other respects describes correctly the judgment appeared from.''" Where tlie from cannot be raised, if the Appel- the case, the change of \'enue will late Court has jurisdiction. Butler not release the sureties, although vs. Wadley, 15 Ind. 502 ; Knight vs. the court affirming the judgment is Waters, 18 Iowa 345. not the one named in the condition 35Newcomb vs. Worster, 7 Allen of the bond, since the law on the 198; Comm. vs. Wistar, 142 Pa. subject of the change of venue is 373; 27 Atl. 871; Dennison vs. Ma- considered as being written into the son, 36 Me. 431. bond. Barela vs. Tootle, 66 Pac. seHalsey vs. Flint, 15 Abb. Pr. Rep. (Colo.) 899. (N. Y.) 367; Post vs. Doremus, 60 38 Anselm vs. Groby, 62 Mo. App, N. Y. 371; Byrne vs. Piddell. 4 La. 421. Ann. 3. " Best Brewing Co. vs. Klassen, 37 Tucker vs. State, 11 Md. 322. 185 111. 37; 57 N. E. 20. Where the case is transferred af- *» Handy vs. Burrton Land Co.. ter appeal to another county by rea- 59 Kan. 395 ; 53 Pac. 67 ; Pray vs. •on of the fact that the judge in the Wadsell, 146 Mass. 324; 16 N. B. county where the judgment was 266. rendered was formerly a counsel in 360 THE LAW OF StTEETYSHIP. a]ipellant's name is omitted from the bond, it is held competent til identify the parties by averment in the pleadings." The omission of the name of the Appellate Court,*^ or the failure of some of the persons named as obligors to sign *° are immaterial defects. All informalities are deemed waived by failure to make limely objection.** The obligee can not stand upon the bond and at the same time object to its informalities. If he secures •a dismissal of the appeal on the ground that the appellant has failed to comply with some statutory requirement, he can not thereafter maintain an action on the undertaking based upon a A iolation of the condition of prosecuting the appeal.*^ Issuing execution after the filing of an appeal bond is evi- dence that the obligee does not intend to waive the defects in the bond." §201. Failure to perfect the appeal. If a party fails to perfect his appeal, the bond is liabl& Such default is within the express condition of the undertaking, ■"iWile vs. Koch, 54 O. S. 608; "Jones vs. Droneberger, 23 Ind. 44 N. E. 236. In this case a further 74; Allen vs. Kellam, 94 Pa. 2:).'i. defect in the bond was urged, in 45 Columbia, etc., R. E. Co. vs. that the bond did not recite the Braillard, 12 Wash. 22; 40 Pac. 382. amount of the penalty, the place for " We think that by refusing to ac- the insertion of such penalty being cept the bond as sufficient, and by left blank. The bond, however, con- taking proceedings to have it de- tained the stipulation " that the ap- termined ineffectual for the pur- pellants if the judgment be adjudg- poses of an appeal, the respondent ed against them on appeal, will sat- is not entitled to judgment against isfy such judgment and the costs." the sureties. Here the appeal is And it is held that the obligation dismissed because the sureties upon thus expressly assumed was not de- the bond are found insufficient, and fcated by failure to insert a definite we think it inconsistent that "re- amount in the undertaking. spondent should be permitted to 1^ Stillings vs. Porter, 22 Kan. 17. treat it as an effectual obligation •i:< Railsback vs. Greve, 58 Ind. after it has secured an adjudication 72 ; Davis vs. O'Bryant, 23 Ind. App. that it is not such." 370; 55 N. E. 261; Hentig vs. Col- 40 State vs. Sixth Judicial Dist. lins, 1 Kan. App. 173; 41 Pac. 1057: Ct, 22 Mont. 449; 57 Pac. 89, 145; Gleeson's Est., 192 Pa. 279; 43 Atl. Hemmingway vs. Poucher, 98 N. Y. 1032. 281. JUDICIAL BONDS. 36i which provides that the appellant will prosecute his appeal to effect. If the appeal is dismissed for want of jurisdiction in the Ap- pellate Court, or for omissions in matters antecedent to the ap- peal, the bond will not be held, for the failure tO' perfect the appeal under these circumstances is not the fault of the ap- pellant.*' The consent of the obligee to perfect an appeal after the date limited by law will waive the default, and the sureties will be held.^« Eecitals in the bond that the appeal has been perfected will estop the obligors from claiming otherwise.** Where the plaintiff in error gave bond in stay of execution •conditioned that he would " prosecute his petition in error to effect," and failed to make his co-defendants in the lower court parties in the reviewing court, the question was raised whether after an affirmanc© of the judgment, the bond was liable, since the error proceeding was not perfected according to law by reason of the defect of parties ; it was held : " The consider- ation of their bond — the stay of execution — has been obtained by them ; and its condition — that he would prosecute his peti- tion in error to effect, or that he would pay the judgment if it should be affirmed — has not been fulfilled. It is not for him or his sureties, in a collateral matter which in no way affects the rights of other parties to the judgment, to deny that the judgment has been affirmed by denying the jurisdiction of the court to which he himself- appealed as a court having jurisdic- tion. On every principle of justice he is estopped from so doing, and the estoppel should be applied wherever it is prac- tical without injuriously affecting the rights of others." °° ••7 Gregory vs. Obrian, 13 N. J. L. 111. 580; 4 N. E. 770; Fearons vs. 11. Wright, 6 Ky. L. Rep. 747. See also Wheeler vs. McCabe, 47 =<> Bulkley vs. Stephens, 29 0. S. How. Pr. (N. Y.) 283. 620. •IS Carroll vs. McGee, 25 N. 0. 13. See also In re Kennedy, 129 Cal. *^ Thalheimer vs. Crow, 13 Col. 384 ; 62 Pac. 64 ; Cresswell vs. Herr, 397; 22 Pac. 779; Mix vs. People. 9 Col. App. 185; 48 Pac. 155; Rod- SB 111. 329: Meserve vs. Clark, 115 man vs. Moody, 14 Ky. L. Rep. 202; 862 THE LAW OK SUKETYSIIIP. §202. Conditions upon which appeal or stay bonds become pay- able. In general, a bond becomes payable upon the affirmance of the judgment or decree, or where a re-trial is had in the Appel- late Court, upon the entering of a judgment against the appel- lant. Such affirmance or judgment must be a final order and of Buch character that the plaintiff may have execution upon it°^ It is not sufficient that the case has been tried in the Appel- late Court and the docket entries in favor of the prevailing: party entered. There must be an actual entry on the record of an affirmance, or an action upon the bond will be premature.^^ Where the Appellate Court enters an original judgment, it was held not sufficient averment in an action upon the bond to allege that the judgment appealed from had been " affirmed." ^' !N"either is a sufficient cause of action stated by the allegation that the appellant has failed to' prosecute his appeal with effect. An inference that the judgment has been affirmed is readily drawn from such allegations, but a cause of action upon the bond can not be founded upon an inference.^* If the principal may further contest any of the points re- served, the condition of the bond is not broken even though the judgment is affirmed in part Thus where the condition of the bond was to satisfy the. judgment, " if the judgment or any part thereof be affirmed," and the appeal was from a judgment and an order denying a new trial, and it was showa that the order as to the new trial was affirmed, it was held insufficient to charge the bond, there being no showing that the judgment was affirmed. °^ Vlannagan vs. Cleveland, 44 Neb. 125 Ind. 332 ; 25 N. E. 349. To the 58 ; 62 N. W. 297. effect that a presumption of the 51 Parnell vs. Hancock, 48 Cal. filing of a certified copy of afiirm- 452 ; Jordan vs. Agawam Woollen anee arises after the trial in the Co., 106 Mass. 571. Appellate Court. 52 Heath vs. Hunter, 72 Me. 259. osO'Neil vs. Nelson, 22 111. App. But see Perkins vs. Klein, 62 111. 531. App. 585. Where it is held not to B4Malone vs. McClain, 3 Ind. 532; be necessary as a basis of an action Daggitt vs. Mensch, 141 111. 395; upon an appeal bond to file a certi- 31 N. E. 153. fled copy of the affirmance. 55 McCallion vs. Hibernia Sav'g See also Buchanan vs. Milligan, Soc, 83 Cal. 571 ; 23 Pae. 798. JUUICIAl BONDS. 363 Yet where there is a distinct alfirmance of a part of the re- lief granted in the lower Court and the decree or judgment is capable of separation, the bond "will be held pro tanto if it is written to cover " -whatever judgment may be rendered." °° An affirmance for a less amount than the original judgment vs^ill, under this form of bond, constitute a breach. '*' Also vs^here the appeal was taken from an order sustaining an attachment and from a judgment upon the debt, and the judgment is affirmed but the order of attachment reversed, it vsras held to constitute a breach of the bond.°' An affirmance as to one or more of the parties, and a re- versal as to others, constitutes a breach of the bond.°' 50 Harding vs. Kuessner, 172 111. 125; 49 N. E. 1001; Holmes vs. Steamer Bell Air, 5 La. Ann. 523. 57 Hopkins vs. Orr, 124 U. S. 510; S S. Ct. 590. But see Heinlen vs. Beans, 71 Gal. 295 ; 12 Pac. 167 ; Feemster vs. An- derson, 6 T. B. Mon. (Ky.) 537. Deatherage vs. Sheidley, 50 Mo. App. 490. Holding that an appeal from a decree upon a mechanic's lien wherein the decree was affirmed in part and released in part did not constitute a breach of the bond. 58 Krone vs. Cooper, 43 Ark. 547. See also Oakley vs. Van Noppen, 100 N. C. 287; 5 S. E. 1. In this case the condition of the appeal was " if, upon said appeal, the said rul- ing is affirmed, and said alleged lien declared and held valid," the ruling was affirmed, but the decree did not in terms hold the lien valid. This was considered a substantial affirm- ance, and to constitute a breach of the bond. To the same effect see Foster vs. Epps, 27 111. App. 235. But see Rice vs. Rice, 13 Ind. 562. This was a judgment for divorce with a decree for alimony in the sum of $200 and for a part of de- fendant's land. The Reviewing Court substituted a decree for $3,200 and released the land, and it was held not to be such an affirmance a» would bind the sureties for the $3,- 000 added by the Court to the de cree. 59 Porter vs. Singleton, 28 Ark. 483; Alber vs. Froelich, 39 0. S. 245 (overruling Lang vs. Pike, 27 O. S. 498) ; McFarlane vs. Howell, 91 Tex. 218; 42 S. W. 853; Brown vs. Conner, 32 N. C. 75 ; Vandyke vs. Weil, 18 Wis. 277; Lewis vs. Maul- den, 93 Ga. 758; 21 S. B. 147; Wood vs. Orford, 56 Cal. 157; Ives vs. Hulce, 17 111. App. 35; Gilpin vs. Hord, 85 Ky. 213; 3 S. W. 143; Lutt vs. Sterrett, 26 Kas. 561 ; John- son vs. Reed, 47 Neb. 322; 66 N. W. 405; Hood vs. Mathis, 21 Mo. 308. Cook vs. Ligon, 54 Miss. 625. In this case the judgment below was against the defendant individually and as executor. It was reversed as to the individual liability and af- firmed as to the representative ca- pacity. Held a breach of the bond. See also Dignowitty vs. Staacke. 25 S. W. (Tex. Civ. App.) 824. 364 THE LAW OP SUEETYSHIP. Where the party appeals to protect a special iuiereot which does not concern his co-defendants, and the judgment generally as to the others is affirmed, but reversed as to the appellant, tl liond will not be held for the part of the decree which iti af- firmed.*" The addition of a new party in the Appellate Court and the entering of a judgment against both the original and the new party is considered an affirmance within the terms of the bond."' §203. Same subject — Affirmance by failure to prosecute appeal. A dismissal of an appeal for want of prosecution is a con- structive affirmance of the lower court, as it leaves the parties bound by the judgment as originally entered and it will be deemed a breach of the conditions of the bond.*^ A dismissal for want of jurisdiction in the Appellate Court is not equivalent to an affirmance. The distinction has been stated as follows : " A dismissal of a writ of error for want of prosecution when the court has jurisdiction of tlie case, has always been treated as an affirmance of the decree or judgment within the meaning of the usual conditions of such bonds. But the rule must be different where the court has no jurisdiction in the premises. It is for the obvious reason that the court has Where the appeal was from a judg- "i Helt vs. Whittier, 31 0. S. 4'75. meut against a principal and surety «2 Long vs. Sullivan, 21 Colo. 109; and there was also a judgment in 40 Pae. 359 ; Sutherland vs. Phelps, the same action in favor of the 22 111. 92; Coon vs. McCormack, 69 surety against the principal. The Iowa 539; 29 N. W. 455; Chase vs. judgment against the principal and Beraud, 29 Cal. 138; Simonds vs. surety was affirmed, but reversed as Heinn, 22 La. Ann. 296; Common- to the judgment in favor of the wealth vs. Green, 138 Mass. 200; surety. This was considered suffi- Flannagan vs. Cleveland, 44 Neb. cient affirmance to hold the bond. 58; 62 N. W. 297; Teel vs. Tlce, 14 In Grieff vs. Kirk, 17 La. Ann. 25, N. J. L. 444; Blair vs. Sanborn, it was held that a judgment against 82 Tex. 686 ; 18 S. W. 159. partners affirmed as to one partner Contra — Kimball Print'g Co. vs. did not constitute a breach of the Southern Land Improvement Co., bond. 57 Minn. 37; 58 N. W. 868. 00 Warner vs. Cameron, 64 Mich. 185: ;il N. W. 42. JUDICIAL BONDS. 365 no jurisdiction to pronounce a judgment of afiirinance, and it would be a Twn sequitur to say a court may affirm a decree when it has no jurisdiction to hear the case for any purpose." "" A failure to prosecute an appeal arising from no fault of the appellant "will not constitute a constructive affirmance, such as the allowance of an injunction against the appellant restraining him from proceeding with tlie appeal/* Where the Legislature in pursuance of a constitutional amendment created a new Court of Appeals to which pending cases were removed, and finally affirmed in the court to which they were transferred, llie sureties upon the bond were released on the ground that it was no fault of the parties that the appeal was not prosecuted in the court to which it was originally sent, and that it was not within the power of the Legislature to im- pose new conditions upon the undertaking of the sureties with- out their consent and thus validate as to them an affirmance in s court not named in their contract."^ An affirmance entered by consent of parties as a compromise or settlement of a controversy will not constitute a breach of the bond, since bonds are executed upon the implied condition that the matters would be submitted to judicial determination. °° 83 Blair vs. Reading, 103 111. 375. altogether a diflferent proposition as But see Swofford Bros. vs. Living to his sureties. They are not par- Bton, 65 Pac. Rep. 413. ties to the suit. They are obligors 8* Planter's Bank vs. Hudgins, 84 in a collateral undertaking. They Ga. 108; 10 S. E. 501. entered into a private contract and 65 Schuster vs. Weiss, 114 Mo. agreed to be bound on era tain eondi- 158; 21 S.W. 438, Gantt, J.. "This tions. Over their contract was the power of the State to change the protection of the Constitution. That mode of proceeding in its courts, contract was made with reference so long as it does not impair the to the law as it then stood. In the obligation of the contract, is too light of that law it must be read, well settled to be brought in ques- After it was made it was secure tion. And where a remedy equally from any act of the legislature, or efficacious is afforded to the suitor, amendment to the Constitutioii im- he cannot be heard to complain. So pairing its obligations." here, while the legislature deprived See also Cranor vs. Reardon, .'^9 the suitor of a hearing in the Court Mo. App. 306; Trader vs. Sale, 18 of Appeals, it at the same time se- 0. C. C. 814. cured him a, hearing in the court of «« Johnson vs. Flint, 34 Ala. 073 ; last resort in the State. But it is Osborn vs. Hendrickson, 6 Cal. 175. aee TJIE LAW OF SUEET-i'smi'. This lias been so held even though the compromise was made in good faith."' A collusive compromise is unquestionably fraud- ulent and will release the surety. An agreement to abide a 67 Ross vs. Ferris, 18 Hun 210; Shimer vs. Hightshue, 7 Black. (Ind.) 238. Foo Long vs. Amer. Surety Co., 146 N. Y. 251; 40 N. E. 730, An- drews, J. : " The undertaking was to pay the judgment if it should be affirmed, or the appeal should be dismissed, and this, under the cir- cumstances, referred to an affirmance or dismissal in an ordinary course of judicial procedure, and not an affirmance or dismissal by consent of parties. The plaintiff was en- titled to proceed in this appeal ac- cording to the usual practice. He could take an affirmance of the judg- ment by default if the practice of the court permitted that to be done. But to construe the undertaking as permitting the parties to agree up- on the judgment to be rendered would subject a surety to a hazard which could not, we think, have been contemplated It would sacrifice substance to form to hold that an affirmance obtained in this way was an affirmance within the true meaning of the undertaking. It was an affirmance by the act of the parties, and not in any true or real sense an affirmance by judgment of the court. It was not the judicial sentence upon the rights of the par- ties contemplated by the undertak- ing. The question of fraud or col- lusion is not presented." Contra — Drake vs. Smythe, 44 Iowa 410; Quillen vs. Quigley, 14 Nev. 215. Ammons vs. Whitehead, 31 Miss. 99, Handy, J. : " The bonds were executed for the purpose of having the cases re-tried in the Circuit Court, and their legal effect was to give that court jurisdiction to de- termine the cases, and to render judgment, if necessary, against both the principal and the sureties. Theii condition was, substantially, that if the judgments should be there af- firmed, they would abide by and per- form the judgment of the Court t(i be rendered thereon. From thcii very nature, the obligation of the sureties was contingent and uncer- tain. They were given for the ex- press purpose of enabling the princi- pal to carry on the litigation; and in the event that it should be un- successful, the law under which they were given provided that the judg- ment should be rendered against both the principal and the sureties. Even if the sureties are not to be considered bound as parties to the judgment, so as to be debarred of the right to complain in a collateral proceeding of what was done in the proceeding, the necessary legal effect of their execution of the bonds was to confer upon the principal the full power to do whatever he might deem necessary and proper in de- fending or determining the suits in the Circuit Court. The principal might have withdrawn all defens« and submitted to judgments in the three cases immediately upon their presentation in the Circuit Court; and upon the same reason was au- thorized to compromise the suiti upon terms advantageous to himself. This was no violation of the obliga- tion of the sureties, nor variation of the terms of their obligation; for JUJJICIAL BONDS. 367 -test case is not a compromise, but in a full sense an affirmance by the court and will create a liability against the bond."' If the appeal has been dismissed and thereafter reinstated by agreement of the parties, it has been held that the sureties are liable upon a subsequent affirmance."" The sureties would be liable upon the constructive affirmance resulting from the dis- missal, and the reinstatement would be an advantage rather tlian otherwise to the sureties as affording an opportunity for a possible reversal. Want of capacity to prosecute the appeal is a breach of the bond. Thus where an affirmance was set aside upon the dis- covery that the appellant corporation had been dissolved before filing the writ of error, the constructive affirmance resulting from the inability and failure to prosecute error was deemed a breach of the bond.'" §204. As to when action may be brought upon bond for appeal A cause of action will generally arise upon an appeal bond immediately upon affirmance, unless it is postpoiied by soma act of the obligee inconsistent with such right. If the obligee has levied execution upon personal property of the principal, it is held no action can be brought upon the bond until the execution has been disposed of in the manner provided by law.''' But a levy upon land is said to be no bar to an action upon the bond since such a levy does not deprive the principal either of the possession or use of the land, pending the enforcement of thfi fc was entirely contingent and un- this State, that sureties in an appeal «pitain, except that the parties had, bond are parties to the suit, in the by the necessary legal eflfect of the sense that they must be consulted in act, submitted themselves to what- regard to any step taken in the cas«" *vrr might be done in the determina- before final judgment." tion of the suit, by their principal, 'o Texas Trunk Ey. vs. Jackson, under the sanction of the court." S.-S Tex. 605 ; 22 S. W. 1030. 8 s Succession of Siraonds, 26 La. "Smith vs. Hv-ghes, 24 111. 270; Ann. 319. First Nat. Bank vs. Rogers, 13 Minn. en Bailey vs. Rosenthal, 56 Mo. 407 ; Clerk vs. Withers, 2 Ld. Raym. S85. "It has never been held in 1072. 368 THE LAW OF SUEKTYSLIIP. the writ, and is not a satisfaction of the judgment.'^ Except where required by Statute or the express terms of the bond, it is not necessary to first cause execution to issue against the prin- cipal before proceeding against the bond/'' Where the bond was to secure an appeal from a special judg- ment for taxeSi, which judgment became a lien upon the land of the defendant, but did not become a personal obligation, it was considered that the liability against the surety was not fixed until execution had been first issued, as such a step was neces- sary in order to show a non-satisfaction.'* It is not necessary to first make a demand upon the prmcipal before proceeding against the surety upon an appeal bond.'" Neither can the sureties require an obligee to first resort to other securities in his possession.'"' Summary action upon appeal bonds may be resorted to where the Statutes make such bonds a part of the record, and a sepa- rate action need not be instituted, but the Appellate Court ea- ters judgments against the sureties at the time the judgment is affirmed against the appellant." It is held that a judgment by '2 Mayo vs. Williams, 17 O. 244. f^Hunt vs. Hopkins, 83 Mo. 13. " There is a great difference between '5 Bell vs. Walker, 54 Neb. 222 ; a levy upon goods and a levy upon 74 N. W. 617; Teel vs. Tice, 14 N. J. land. The goods are taken from the L. 444; Fowler vs. Gordon, 5 Ky. L. possession of the owner by the levy. Rep. 332; Nelson vs. Donovan, 16 but the owner of the land remains in Mont. 85 ; 40 Pac. 72 ; Bolles vs- possession after the levy, and can- Bird, 12 Colo. App. 78; 54 Pac. 403. not be dispossessed until after the 76 Bingham vs. Mears, 4 N. D. land is sold." -137; 61 N. W. 808; Cox vs. Mulhol- Herriek vs. Swartwout, 72 111. Ian, 6 Mart. (La.) 649; Davis vs. 340; Robinson vs. Brown, 82 111. Patrick, 57 Fed. Rep. 909; Mix vs_ 279. People, 86 111. 329. 73 Murdock vs. Brooks, 38 Cal. ^'^ Callahan vs. Saleski, 29 Ark. 596; Steinhauer vs. Colmar, 11 Colo. 216; Hawley vs. Gray Bros. Paving App. 494; 55 Pac. 291; Staley vs. Co. 127; Cal. 560; 60 Pac. 437; Howard, 7 Mo. App. 377; Trogden Shannon vs. Dodge, 18 Colo. 164; 32 vs. Cleveland Stone Co., 53 111. App. Pac. 61; Kiernan vs. Cameron, 66 206; Ayers vs. Duggan, 57 Neb. 750; Miss. 442; 6 South. 206; Lowe vs. 78 N. W. 296 ; Wallerstein vs. Amer. Riley, 57 Neb. 252 ; 77 N. W. 758 ; Surety Co., 15 N. Y. Suppl. 954; Holbrook vs. Investment Co., 32 Ore- Babbitt vs. Finn, 101 U.- S. 7; Ful- gon 104; 51 Pac. 451; Hiekcock vs ler vs. Aylesworth, 75 Fed. Rep. Bell, 46 Tex. 610. 604. Beall vs. New Mexico, 16 Wall. JUDICIAL BONJ)S. 369 summary process may be entered against the surety even though no notice is given him.' 78 §205. Measure of damages in an action upon an appeal or stay bond. The amount of recovery upon a bond will be limited in any event to the amount vs^hich the law requires to be secured, and if a bond is executed for a sum in excess of that which the Statutes require, it will impose no liability for the excess, such excess of undertaking being void for want of eonsiderationJ" The amount recoverable vdll be further controlled by such express words of limitation as are recited in the bond. If the condition is merely to satisfy the judgment appealed from, it will not cover the costs in the Appellate Court. Such costs can only be brought under the obligations of the bond b\' express stipulation or by a condition to perform the judgment of the Appellate Court, although it is held that a bond to pay the judgment of a lower court will cover the costs in that court, without express stipulation, since the costs are a part of the judgment.*" So also, a bond conditioned to satisfy the decree or final order of the Appellate Court, is held not to include the costs, of the lower court. ^'^ 535, Bradley, J. : " A party who constitutional principle is involvetfr enters his name as surety on an ap- no fact is to be ascertained for the peal bond does it with a full knowl- purpose of rendering the sureties edge of the responsibilities incur- liable, which is not apparent in the red. In view of the law relating record itself; no object (except to the subject it is equivalent to a mere delay) can be - subserved by- consent that judgment shall be compelling the appellees to bring entered up against him if the a separate action on the appeal appellant fails to sustain his ap- bond." peal. If judgment may thus be '8 Phelan vs. Johnson, 80 Iowa entered on a recognizance, and 727; 46 N. W. 68. against stipulators in admiralty, we "> Ante Sec. 199. see no reason in the nature of so Jonnson vs. Ward, 21 Ky. L, things, or in the provisions of the itep. 783; 53 S. W. 21; Many vs. Constitution, why this effect should Sizer, 6 Gray 141. not be given to appeal bonds in si Michie vs. Ellair, 60 Mich. 73; other actions, if the legislature 61 N. W. 1020. doems it expedient. N"fi fiinfl.imental 370 THE LAW OF SURETYSHIP. If the Statute points out the requiremeaits for a bond in ap- peal, and the bond omits some of these requirements, they will be supplied by the intendment of the law, and recovery had for the amount the Statute requires.'^ Where the subject matter of the action is within the control of the court, as in the case of the foreclosure of a mortgage or mechanic's lien, or an action to set aside a fraudulent convey- ance where the property is held by a receiver, the law does not require the substitution of a bond for the property pending a review in the Appellate Court. The undertaking in such cases does not cover the amount of the original decree, but only such costs an.d damages as result from the proceeding in error. This is usually regulated by Statute and the bond carries no larger liabilities than the Statute contemplates. The Federal Statutes limit the liability upon foreclosure ap- peal bonds in oases where the appeal stays execution to " all damages and costs." This is held to cover only the costs in lie Appellate Court, and such deterioration and waste of the prop- erty as results from the delay incident to the appeal, and does not cover the original decree nor interest pending appeal, nor rents and profits upon the land.*^ The Statute in some of the 82 Chandler vs. Thornton, 4 B. case, was not entitled to possession, TVIon. (Ky.) 360; Gilpin vs. Hord, nor to the rents and profits. His 85 Ky. 213; 3 S. W. 143. foreclosure suit did not seek posses- In Indiana the Statute specifically sion, but sought a sale of the spe- provides that omissions of statu- cific thing — the land. In such a ease, tory requirements for appeal bonds until the litigation is ended, it doth will not relieve the sureties from not appear that there must be » those requirements. Stults vs. Zahn, sale, or even that the plaintifi' is en- 117 Ind. 297; 20 N. E. 154. titled to a, sale. The defendant in But see Boulden vs. Estey, 92 Ala. possession is entitled to redeem the 182; 9 South. 283. Where the bond land until a sale is made, and until was conditioned for the payment of then he is entitled to the rents and costs only, although the Statute re- profits, which belong to him as of quired a bond to cover costs and right. The taking of the rents .and damages, and it was held that the profits prior to the sale does not liability on the bond was limited to injure the mortgagee, for the simple its exact language. reason that they do not belong "3 Kountz vs. Omaha Hotel Co., to him. Waste, that is, destruction 107 U. S. 378; 2 S. Ct. 911, Bradley, or injury to the land itself, as be- J. I p. 392) : " The plaintiff, in this fore stated, is an injury to the mort- JUDICIAL BONDS. 371 States requires tke appellant in foreclosure to execute a bond conditioned to pay the debt/* Where no personal judgment is rendered in an action of fore- gagee. It diminishes the value of the pledge; and for such injury no doubt he might recover on the ap- peal bond. Other deteriorations, such as occur by want of repairs, ac- cumulation of taxes, fires not cov- ered by reasonable insurance, and the like, probably might also be fairly covered by the bond. But per- ception of rents and profits is the mortgagor's right, until final de- termination of the right to sell, and the sale is made accordingly. The mere delay of the sale for the pur- poses of an appeal does not operate to the legal injury of the mortgagee. It does not suspend execution for the debt. . As it is the spe- cific thing, the land itself, and not the rents and profits that constitutes the pledge, and delay of sale caused by the appeal, as before said, de- prives the mortgagee of no legal right. It may be an incidental dis- iidvautage or inconvenience, but in our judgment it is not a legal dam- age contemplated by the appeal bond." Miller, J. (dissenting), p. 400: '■ In all eases of insolvent mortgagors the rule, as construed by the Court, cflFers a strong inducement to keep the mortgagee out of his money as long as possible, without interest, or any other compensation for the delay. An insolvent corporation — a railroad company, for instance — makes default in its mortgage bonds, which amount to twice the value of the property mortgaged. A decree is obtained for its sale, and before a receiver can be appointed, the directors take an appeal, give a small bond, little more than the probable costs, and then use the road for three years, making mil- lions of dollars out of it with which to pay debts subsequent to the mort- gage, or distribute among interested parties. No more striking instance of its injustice is needed than the case before us. A decree for money largely in excess of the value of the hotel mortgage is stayed by a bond for $50,000, under which the defend- ant, an utterly insolvent corpora- tion, receives rent, or uses the prop- erty to the value of $38,000, while it litigates without a shadow of right, in this court for three years, and appropriates this $38,000 to its own use, and is not held responsible for this, though the bond expressly mentions ' the use and detention ' of the property as one of the liabili- ties incurred, if the corporation fails to make good its plea." See also, as supporting the view that rents or profits cannot be re- covered upon an appeal and fore- closure. Wood vs. Fulton, 2 Harr. & G. (Md.) 71; Hutton vs. Lock- ridge, 27 W. Va. 428; Burgess vs. Doble, 149 Mass. 256 ^ 21 N. E. 438. It is held that a bond for stay of execution upon a decree setting aside a fraudulent conveyance covers the rents and profits pending the appeal. Killfoil vs. Moore, 45 S. W. (Tex. Civ. App.) 1024. 81 Whan vs. Irwin, 27 La. Ann. 706. See also Marehand vs. Frellsen, 105 U. S. 423, construing the Louis- iana Statutes. 372 •Ui; LAW or SUBETYSMIP. closure, no recovery can he- had upon the appeal bond for the deficiency.*'' In an appeal from an order foreclosing a mechanic's lien, it •was held that the sureties were not liable for the deficiency, since the owner, in any event, was not liable beyond the pro- ceeds of the property covered by the lien.^" The same rule applies and for the same reason where a junior mortgagee ap- peals. The limit to which any decree can operate against him is to order the deduction from the fund, as a prior claim, of the full amount of the senior mortgage.*^ And to the same effect where a subsequent attaching creditor ^* or a person holding in a trust or representative capacity- appeals, the latter in no event should thereby incur a liability beyond the value of the assets belonging to his trust.'" An appeal from an order of ejectment will in general obli- gate the sureties for the rents and profits during the time the appellee is kept out of possession by reason of the appeal."" 85 Hinkle vs. Holmes, 85 Ind. 405 ; Berryhill vs. Keilmeyer, 33 Iowa 20; Knapp vs. Van Etten, 55 Hun 428; 8 N. Y. S. 415; Mississippi Val. Trust Co. vs. Somerville, 85 Mo. App. 265. 8s Sosman vs. Conklin, 65 Mo. App. 319. 3T Willson vs. Glenn, 77 Ind. 585. 88 Friedman vs. Lemle, 38 La. Ann. 654. 89Lunsford vs. Baskins, 6 A.la. 512; Fitzpatrick vs. Todd, 79 Ky. 624. Contra — ^Yates vs. Burch, 87 N. Y. 409, Danforth, J.: " Although it should be conceded that the original judgment could have been enforced against the defendants therein only to the extent of assets in hand, after payment of prior claims, the conces- sion would not aid the defendants here. Their promise or undertaking ■was upon sufficient consideration, and by reason of it the judgment- creditors were prevented from pursu- ing such property as might be in possession of the judgment-debtors, or marshalling the assets ; they can- not therefore successfully urge that the judgment could not have been collected. The considerations now advanced for the purpose, and also set out in the answer, might have availed upon an application to the court below to dispense with or limit the security to be given upon appeal, but after an unsuccessful appeal, cannot avail against the security in fact given, and which may well be construed as an admission of the possession of sufficient assets to pay the judgment." See also Schumcker vs. Steide- mann, 8 Mo. App. 302. ooCahall vs. Citizens Mut. Bldg. Assn., 74 Ala. 539; Miller vs. Vaughn, 78 Ala. 323 ; Hays vs. Wil- stach, 101 Ind. 100; Adams vs. Gil- christ, 63 Mo. App. 639; Gleeson's JUDICIAL BONDS. 373 Atlurney fees in resisting an appeal are not recoverable as damages upon the bond.""^ It has been held that the bond is liable for nominal damages, although the appellant pays the judgment and costs upon afSmi- jmce.^^ The bond will be liable for the judgment of the Appellate Court, even though the amount is in excess of the judgment ap- pealed frorn.'^ Where the judgment in the Appellate Court is rendered against both the principal and surety, and the amount of it with costs exceeds the penal sum named in the bond, such judg- ment as against the surety is erroneous."* Interest can be recovered as damages for the detention of the payment of the penalty after it becomes due, and in an action upon an appeal bond, the judgment appealed from togeth- er with interest may be recovered, even though the addition of the interest increases the amount beyond the penalty named in the bond, and the interest period begins to run from the time tlie surety should have paid, which would be the time of demand, and the bringing of tlie action is sufficient demand. "^ Est., 192 Pa. 279; 43 Atl. 1032; St. c* Zeigler vs. Henry, 77 Mieh. Louis Smelting Co. vs. Wyman, 22 480; 43 N. W. 1018. Fed. Rep. 184; Norton vs. Davis, 13 But see Tyson vs. Sanderson, 45 Tex. Civ. App. 90; 35 S. W. 181; Ala. 364. Where it is held that a Tarpey vs. Sharp, 12 Utah, 383; 43 recovery can be had for the full I'ac. 104. amount of a guardian's bond and the An appeal in an action to quiet costs of the action in addition, title does not charge the appellant See also State vs. Homey, 44 Wis. upon the bond for the rents and 615. jiiofits accruing during his posses- <^<> Ives vs. Merchant's Bank, 12 »ion pending appeal. Carver vs. Car- How. 159; Crane vs. Andrews, 10 ver, 115 Ind. 530; 18 N. E. 37. Colo. 265; 15 Pac. 331. 81 Kellogg vs. Howes, 93 Cal. 586; Whereatt vs. Ellis, 103 Wis. 348; ifl Pac. 230; Noll vs. Smith, 68 Ind. 79 N. W. 416, Marshall, J.. " It was 188; Deisher vs. Gehre, 45 Kas. 583; an ancient doctrine, and is still fol- 26 Pac. 3. lowed to some extent in England. Contra — Shows vs. Pendry, 93 that the penalty in a penal bond Ala. 248; 9 South. 462. limits the amount of recovery how- "2 George vs. Bisehoff, 68 111. 236. ever much the actual damages of 83 Cooper vs. Rhodes, 30 La. Ann. the obligee may be. In ac- 5"3. i-ordance with the OTeat weight of 374 THE LAW OF SUEETYSHIP. §206. Successive appeal bonds. Where a bond in appeal or stay of executioii is given in an action in whicli a prior bond in appeal or stay has been exe- cuted, suck as where an appeal has been taken to an interme- diate court, and a further appeal is taken to a court of last resort, these successive bonds are cumulative and a final affirm- ance fixes the liability upon both bonds.°° As between the several sets of sureties, the last are the prin- cipal obligors, and the first are in the relation of sureties for them." 'American authority the judicial rule here, as to interest, is that when the damages for the breach of a penal bond exceed the penalty, the obli- gee is entitled to interest on the penalty, the interest period, how- ever, to be controlled by the right of the obligee to interest upon the damages against the principal. That is to say, when the circumstances are such that the principal is charge- able with interest on the damages accruing from the breach of a bond and such damages are equal to or exceed the penalty, the interest pe- riod on such penalty will commence at the same time as that against the principal on such damages. When the bond is breached under this rule, the penalty, to the amount of the damages, immediately becomes the debt of the sureties and bears interest, the same in all respects as any other debt due on contract, if the principal claim bears interest." See also Nat. Bank vs. Baker, 58 111. App. 343; Devol vs. Dye, 6 Ind. App. 257; 33 N. E. 253. 98 Church vs. Simmons, 83 N. Y. 261; Chester vs. Broderiek, 131 N. Y. 549 ; 30 N. E. 507 ; Shannon vs. Dodge, 18 Col. 164; 32 Pac. 61; Becker vs. People, 164 Til. 267; 45 N. E. 500; Boaz vs. Milliken, 4 Ky. L. Rep. 700; Coonradt vs. Campbell, 29 Kan. 391 ; Moore vs. Lassiter, 16 Lea (Tenn.) 630; Howard Ins. Co. vs. Silverberg, 89 Fed. Rep. 168. Babbitt vs. Finn, 101 U. S. 7, GUfford, J. : " Where the bond is given in a subordinate court to prosecute an appeal to effect in a superior court, the sureties becoma liable if the judgment is affirmed in the superior court; nor are they dis- charged in case the judgment of the superior court is removed into a higher court for re-examination and a "new bond is given to prose- cute the second appeal, if the judg- ment is affirmed in the court of last resort. Nothing will discharge the sureties given to prosecute the ap- peal from the court of original juris- diction, but the reversal of the judg- ment in some court having jurisdic- tion to correct the alleged error." " Hinckley vs. Kreitz, 58 N. Y. 583. Wronkow vs. Oakley, 133 N. Y. 505; 31 N. E. 521. In this case the second set of sureties paid the judg- ment, and took an assignment of it, held — " Upon the affirmance of the judgment by the latter court the sureties on the last appeal bond JUUICIAL BONDS. 37; Where a new trial was granted upon a proceeding in error, and upon retrial the same judgment is rendered, upon which er- ror is prosecuted, it is held that the first bond remains liable."* So also if the judgment is reversed on appeal, and upon further appeal such judgment of reversal is reversed and the original judgment affirmed, the first bond is liable. ^^ If an additional bond is given in the same action, in pur- suance of an order of court, the liability upon both bonds is concurrent, and a joint action upon the bonds may be prose- cuted."" §207. Defenses in actions upon appeal bonds — Estoppel. The sureties upon an appeal bond are estopped from all col- lateral attack upon the judgment appealed from. All issuable facts necessary to the validity of the judgment are conclusively settled by the judgment and its affirmance, and any fact whicli was necessarily determined in the action in which the judgment was rendered, can not be put in issue in an action upon a bond."^ took an assignment of the judg- ments, and in their hands there was no longer any liability on the part of the sureties on the first appeal. Such sureties became, on the giving of the second undertaking to pay the judgments, sureties for the second sureties, and when the second sure- ties paid or discharged their obli- gation to the owner of such judg- ments and took an assignment of them, they could not enforce them against the first sureties." »8Lowry vs. Tew, 25 Hun 257; Barela vs. Tootle, 66 Pa. Rep. (Col.) 899. 99 Carroll vs. McGee, 25 N. C. 13; Robinson vs. Plimpton, 25 N. Y. 484; Crane vs. Weymouth, 54 Cal. 476. But see StoU vs. Padley, 100 Mich. 404; 59 N. W. 176, where the bond was conditioned to pay such judgment as should be rendered in the intermediate court and the in- termediate court rendered no judg- ment, but reversed the lower court. It, subsequent reversal of the inter- mediate court was held to impose no liability upon the bond. To the same effect see Nofsinger vs. Hartnett, 84 Mo. 549. looHargis vs. Mayes, 20 Ky. T.. Rep. 1965; 50 S. W. 844. 101 Butler vs. Wadley, 15 Ind. .502; Pierce vs. Banta, 9 Ind. App. 376 ; 31 N. E. 812 ; Hydraulic Press Brick Co. vs. Neumeister, 15 Mo. App. 592; Keithsburg & E. R. R. vs. Henry, 90 111. 255. West vs. Carter, 129 111. 249; 21 N. E. 782. In this ease the judg- ment appealed from was upon a gambling debt, and the surety de- 376 . THE LAW Ob- SUEETYSHIP. The sureties are not estopped from showing fraud and col- lusion in obtaining the judgment appealed from/"^ The want of jurisdiction in the Appellate Court will not avail the sureties where the judgment has heen affirmed on appeal.'"" In general the sureties are estopped from asserting any de- I'lmse which contradicts the recitals of the bond, such as that tlie judgment appealed from had never been entered/"* or that the order of the court in reference to the appeal was not com- plied with."" Where the appeal is entertained and the judgment affirmed, tlie sureties will be estopped from showing that some statutory requirement necessary to the perfecting of the appeal was ■omitted."" S208. Appeal from a justice court. An appeal from a Justice Court to a court of record vacates all the judgments and orders entered by the magistrate, and the case is retried in the Appellate Court the same as if originally begun there. This is a right expressly conferred by statute, fends upon the ground that the See also Watson vs. Johnson, 13 judgment, and the bond to secure Ky. L. Eep. 336. its appeal, were void on that ae- lo^ piercy vs. Piercy, 36 N. C. count, held — "In no sense can ap- 214; Supreme Council vs. Boyle, 15 pellee be said to be a person 'in- Ind. App. 342; 44 N. E. 56. terested,' either in the original con- Contra — Krall vs. Libbey, 53 Wis. tract or in the judgment rendered 292; 10 N. W. 386. thereon by the justice of the peace, los Hathaway vs. Davis, 33 Cal. within the contemplation of the see- 161. lion of the statute quoted. In re- io*Parrott vs. Kane, 14 Mont. spect to this judgment, he was a 23; 35 Pac. 243. mere volunteer, who, at the instance los Meserve vs. Clark, 115 111. 580; ot the defendant, voluntarily obli- 4 N. E. 770. f: ited himself to pay the judgment See also Dunterman vs. Storey, 40 rendered against his principal, by Neb. 447 ; 58 N. W. 949 ; Healy vs. wiid justice, and all costs occasioned Newton, 96 Mich. 228; 55 N. W. by the appeal, in case the appeal C66. M IS dismissed by the Circuit Court, »»6Ante Sec. 201; Gudtner vs. as n e have seen was done. It cannot Kilpatrick, 14 Neb. 347; 15 N. W. affect the standing of appellee, or 708; Plannagan vs. Cleveland, 44 discharge his obligation, that his Neb. 58; 62 N. W. 297; Love vs. principal might, either at law or in Rockwell. 1 Wis. 331. equity, have avoided the judgment." juiiiciAj- BOJNi/s. 377 .-and is unknown to the common law, and is in force in nearly all the States. The statutory provisions for stay of execution in the Justice ■Court, for the most part, relate to the suspension of the right ^f execution without conferring a right of review in the Appel- late Court, although the statutes of the various States provide also for a petition in error to the higher court, with or without bond. The statutory requirements as to the time within which ap- peal bonds can be filed are mandatory, and the filing of a bond after this limitation has expired gives the Appellate Court no jurisdiction, and creates no liability on the bond. ^°' Where the statute provides that the appellant shall give bond ■conditioned to pay the judgment below, if the appeal is dis- missed, and the bond merely recites that he will pay the judg- ment of the Appellate Court, the requirement of the statute becomes a part of the bond by intendment of the law, and if the appeal is not prosecuted, the sureties will be held.^°^ §209. Bonds to procure injunction. As a general rule the extraordinary relief by injunction will not be granted, except upon the condition that the plaintiff exe- cute a bond either to the defendant or the State for the use of the defendant, conditioned to pay such damages as result in case it is finally decided that the injunction ought not to have been granted. ISTearly all the States have now so provided by Statute, and i- missal should be treated as an ad- judication against the right. " But where, as in the present case, the defendants secure a dismissal of the action, and a dissolution of the injunction upon some matter aris- ing subsequent to the commence- ment of the action and having no re- lation to the merits, either directly or by inference, it would, we tliink, be contrary to the natural or reason- able interpretation of the transac- tion to hold that the dismissal was a determination by the court that the plaintiff, at the time the tem- porary injunction was issued ' was not entitled thereto,' and especially would it be contrary to principle to so adjudge against the sureties in the undertaking." See also Palmer vs. Foley, 71 X. Y. .106. iiT Johnson vs. Elwood, 82 N. Y. 362. 382 THE LAW OF SUEETYSIIIP. material whether the order of dissolution is based upon facts arising before or after the allowance of the writ/^* Where the injunction is dissolved because of an insufficient bond, it constitutes a breach of the undertaking.^^' A submission of a case to arbitration which results in a dis- missal of the controversy and a dismissal of the injunction, does not constitute a breach of the bond. The agreement of the parties to abide by the arbitration, whether right or wrong, is a settlement of the issues without judicial determination and can not be substituted for a decision by the court that the injunction ought not to have been granted, it is in effect a dissolution by consent and a waiver of damages.^^" 11* Alliance Trust Co. vs. Stewart, 115 Mo. 236; 21 S. W. 793. 119 Bctts vs. Mougin, 15 La. Ann. 52. i-» Columbus, Hocking Valley & Toledo Ry. Co. vs. Burke, 54 0. S. 98; 43 N. E. 282, Minshall, G. J.: " In a decision by the Court the law requires that it shall conform to the law and the facts of the case, if it do not, by taking the proper steps, its judgment may be reversed by the proper tribunal at the suit of the party aggrieved. But such is not the case as to the award made by the arbitrators in this instance, un- der the agreement of submission be- tween the parties. It is true that the issues of law and fact between the parties in the case were referred to the arbitrators to be heard and determined as a court. But whether they so heard the case or not, whether they erred both as to the law and the facts, no remedy was provided, and none could be had, however erroneous their award might be in point of law and fact. They heard the case as a quasi court at most, not as ministers of justice appointed by the law; and their judgment was to be, and is. final and irreversible by any tri- bunal. If there had been a provi- sion that the award should be made a rule of court, and subject to be set aside or confirmed by it on a review of the law and facts on which it was made to rest, there would be some ground for the argument, that it is the equivalent of the decision required by the bond When a plaintiff obtains an injunction by giving a bond to answer for such damages as may be caused the de- fendant by its allowance, and after- wards, voluntarily and without the consent of the defendant, dismisses his action, there is much reason for holding that he should be estopped to say, in an action on the bond, for the recovery of damages, that it has not been decided that the injunction ought not to have been granted. For, in such case, he, by his own act, has prevented the defendant from having such a decision. And such is the substance of the holding in the various cases cited by counsel for the defendant in error. " But none are cited, and we have found none, that the same rule ap- plies, where the dismissal is with the consent of the defendant. JUDICIAL BONDS. 383 A dissolution of an injunction as to a part of the relief prayed for in the writ/^^ or as one of several parties en- joined/^^ does not constitute a breach of the bond. Even though the temporary restraining order has been dis- solved upon motion, no action can be maintained on the bond, until a final determination of the cause in which the injunction was issued.^^' §211. Construction of bonds to procure injunction. The liability of a surety upon an injunction bond is stricti juris and the form of the bond as well as all the elements essen- tial to a valid contractual relation will be taken into account. There must be a consideration, and where the bond is given xifter the injunction has issued it lacks a valid consideration and the sureties are not liable.^^* So also if the penalty and conditions of the bond exceed the requirements of the statute, it vsdll, to the extent of such excess, be inoperative for want of consideration.^^" , Parol evidence cannot be received to remedy defects in the ■ And there is not the same reason 407; 41 Pac. 508; Bank of Monroe lor holding that it should. In such vs. Gifford, 65 Iowa 648 ; 22 N. W. «ase the defendant has an oppor- 913. tunity to insist that, before the dis- Cohn vs. Lehman, 93 Mo. 574; 6 missal is had, the court determine g ^f. 267. In this ease the pre- whether the injunction ought to Uminary injunction was dismissed have been granted, so that an action ^^ ^^^.^^^^ ^^^ ^^ ^^^^ hearing, the may be prosecuted on the bond, if ^^^^ ^^^ dismissed. An appeal was such is his purpose. If he fails to., i4.i.T,jic. /-li , , . , taken to the Federal Supreme Court, ■00 this, and consents to the dismis- .,.,,, j , .^ but without supersedeas, and it was held that the right of action on the bond was suspended during the ap- peal. See also Yazoo & M. V. E. R. Co. 121 Walker vs. Pi-itehard, 34 111. ^^- ^'^^™^' ^^ ^'^^- *»"; ^^ South. App. 65. **■ Oo««ra— Pierson vs. Ells, 46 Hun 1^4 Carter vs. Mulrein. 82 Cal 33g 167; 22 Pac. 1086. 12-Ovingtonvs. Smith, 78 111.250. 1 25 Lambert vs. Haskell, 80 Cal. 123 Clark vs. Clayton, 61 Cal. 634; 611 : 2? Pac. .S27. Xilpatrick vs. Haley, 6 Col. App. ral of the action, his conduct is consistent with the inference that he intends to waive any right he niav have on the bond." 384 THE I>AW OF SnEJSTYSHIP. form of the bond/'"' but words of doubtful meajning will be con- strued if possible to avoid a forfeiture.*^'' The clerical omission of words which are necessary to com- plete the sense of the instrument, and which are obviously left out by mistake, will be supplied by construction, as for example, the omission of the word " dollars " from the penalty clause/^' A recital in a bond that the injunction has been allowed is not conclusive of that fact, and the sureties are not estopped from showing that the order did not issue/"" But it is held that the sureties are estopped from denying a recital in the bond that the injunction was issued on condition that the plaintiff execute the bond/'" Where the bond contains a misrecital of material facts, but contains a reference to records in which the facts are correctly stated, the reference for the purpose of construction becomes a part of the bond itself.*'* §212. Defenses of sureties upon injunction bonds. The sureties, who by their bond, assist the plaintiff to invok* the extraordinary remedy of restraint upon the defendant will be estopped from claiming as a defense that the court issuing the writ had no jurisdiction,*'" or that the writ was issued with- 126 Copeland vs. Cunningham, 63 bond the sureties claimed that thff Ala. 394. undertaking was void on that ac- 12' Lambert vs. Haskell, 80 Cal. count. Held — " The question w« 611; 22 Pac. 327; Shreffler vs. Na- must determine is whether the de- delhoffer, 133 111. 536. fendant in such action had the right 128 Harman vs. Howe, 27 Gratt. to resist the making of the order 676. and to apply to the courts for its 12!" Adams vs. Olive, 57 Ala. 249. dissolution, and after having suc- 130 Hamilton vs. State, 32 Md. cessfuUy done so, hold the plaintiff 348. upon his bond for the necessary ex- 131 Williamson vs. Hall, 1 0. S. pense incurred in the proceeding. 190. If the contention of the appellees is 132 Robertson vs. Smith, 129 Ind. the correct one, the position of a 422; 28 N. E. 857. In this case it party against whom an injunction was conceded that the Court grant- has been granted by a court of gen- ing the injunction had no jurisdic- eral jurisdiction is an embarrassing tion nver the person of the de- one. He must determine for hira- fendant, and when sued upon the self whether the court has jurisdic- JUDICIAL BONDS. 385 out probable cause/'^ Where the prohibition of the writ is directed against the doing of an act whieh the defendant never intended to do, the injunction, for this reason, can do no injury to the defendant, and no recovery can be had on the bond.^^* Where the defendant was enjoined from negotiating a note and answered that he did not intend to negotiate the note, it was held that there could be no recovery on the bond as the defendant had not been injured.^'^ It is no defense to an action upon an injunction bond that in another action involving the same issues the injunction was sus- tained."" tion to make the order. If, in ad- dition to the proposition of law in- volved, there are disputes concern- ing the place of his domicile, he must, at his peril, determine how that question of law and fact will ultimately be decided. If he con- cludes that the court has not juris- diction, and disobeys its order, he will be fined and imprisoned for eon- tempt. If, on the other hand, he concludes to obey the order, and leave it to the court to determine the question of its validity, then, by it, he has no remedy. We have however much he may be injured arrived at the conclusion that neither reason nor the weight of authority will compel a litigant to occupy this anomalous position. An injunction cannot be granted with- out a bond. The agreement in the bond to pay damages resulting from it is clear and explicit. Damages must, from the nature of the case, result if the defendant is restrained from doing that which he has a right to do. He must resist the order, and must, by himself or coun- sel, defend himself against proceed- infri for contempt. He can not go his way as though no such order had been granted, however invalid and unauthorized it may be. It can not fairly be said that he has an election to disregard the order, for he is put in a position where he must vindicate his rights, one way or another, before a court. This being true it would seem re- markable that he should be required to do this at his own expense, when there is a bond given for the- very purpose of protecting him f romL the wrongful action of the court." Cumberland Coal & Iron Co. vs. Hoffman, 39 Barb. 16 ; City of Boise City vs. Randall, 66 Pac. Rep. (Idaho) 938; Loomis vs. Brown, 16- Barb. 325; Walton vs. Beveling, GV 111. 201; Hanna vs. McKenzie, 5 B.. Mon. 314; Adams vs. Olive, 57 Alii_ 249. 133 Cox VS. Taylor's Adm., 10 B.. Mon. 17 ; Hornback vs. Swope, 8 Ky. L. Rep. 533. 134 Hayes vs. Chicago Gravel Co., 37 111. App. 19. 135 Bank of Monroe vs. Gifford. "!► Iowa 580; 31 N. W. 881. 138 Swan vs. Timmons, 81 Ind, 24''. 386 THE LAW OF SUEETYSHIP. 5;213. Measure of damages for breach of injunction bond. A recovery upon an injunction bond is limited to damages which flow directly from the restraining order, and although' there has been a nominal infraction of the defendant's rights,' unless it results in an injury, the bond is not liable. Where the defendant was restrained from using the water of a ditch for irrigating his land, it was held that he was not entitled to recover on the bond after the dissolution of the injunction, it being shown that by reason of the scarcity of water, no benefit would have been received from the ditch had the injunction not been granted.^^' Damages resulting indirectly from the restraining order can not be recovered. Thus, where the owners of a stock of mer- chandise were enjoined from disposing of the same, the loss of profits was considered a remote damage, although it was shown that prior to the injunction order the business had made a large profit.^''* Also where a defendant was divested of his property by an injunction and the appointment of a receiver, it was held that no recovery could be had on the injunction bond for dam- ages resulting from the bad management of the receiver.^" The depreciation in value of property withdravm from the market by the injunction is a direct result of the restraint, and a proper subject of recovery on the bond.^*" la'Maek vs. Jackson, 9 Col. 536; i39 Hotchkiss vs. Piatt, 8 Hun 46; 13 Pac. 542. Lehman vs. McQuov^n, 31 Fed. Rep. 138 Hibbard vs. McKindley, 28 111. 138 ; Wood vs. Hollander, 84 Tex. 240; Chicago City JRy. Co. vs. Howi- 394; 19 S. W. 551. son, 86 111. 215; Epenbaugh vs. i*o Meysenburg vs. Schlieper, 48 Gooch, 15 Ky. L. Eep. 576. Mo. 426 ; Lallande vs. Trezevant, 39 ' See also Sensenig vs. Parry, 113 La. Ann. 830; 2 South. 573; 5 Pa. 115; 5 Atl. 11; Moorer vs. An- South. 862; Dougherty vs. Dore, 63 idrews, 39 S. C. 427; 17 S. E. 948. Cal. 170. JUDICIAL BONDS. 387 • Where the injunction results in the detention of money, the measure of damages is the legal rate of interest/*^ If the collection of a judgment is enjoined, interest on the judgment may he recovered.^*'' But it "was held that where a sale of land upon execution was enjoined, that the plaintiff can not recover interest on the pur- chase price from the time of the injunction to the time of sale.^** Loss of time and wages occasioned hy injunction are a proper element of damages providing due diligence is used in seeking other employment.^''* So also where the defendant is under contract to pay salaries and wages to employees, and his husiness is suspended by the in- junction, the bond is liable for the wages.^*" It was held where one is enjoined from the collection of debts, and the debts are barred by the Statute of Limitations pending the injimction, that the sureties upon the bond are lia- ble for the amount of the debts so barred. ^*° Mental strain and anxiety which the defendant suffers in consequence of the in- junction are not a proper subject of damages.^*' Where the injunction operates to deprive the defendant of his right to the possession of land, the value of the use and occu- pation during the pendency of the writ, is an element of dam- ages, and the measure of the use and occupation is the rental value,^** or where the use of the land by the owner in his busi- ness can be made the subject of approximate computation, the recovery can be had for this amount.^*" 1*1 Heyman vs. Landers, 12 Cal. i*8 Terrell vs. IngersoU, 78 Tenn. 107. 77. i-iaAmis vs. Bank of Ky., 8 La. "t Cook vs. Chapman, 41 N. J. Ann. 441; Weatherby vs. Shackle- Eq. 152; 2 Atl. 286. ford, 37 Miss. 559. "« Wadsworth vs. O'Donnell, 7 "3 Colby vs. Meservey, 85 Iowa Ky. L. Rep. 837 ; HoUoway vs. Hol- 555; 52 N. W. 499. loway, 103 Mo. 274; 15 S. W. 536; But see Hill vs. Thomas, 19 S. C. Wood vs. State, 66 Md. 61; Rice vs. 230. Cook, 92 Cal. 144; 28 Pac. 219. "* Muller vs. Fern, 35 Iowa 420. 1*9 Edwards vs. Edwards, 31 111. "s Wood vs. State, 66 Md. 61 ; 5 474 ; Silsbe vs. Lucas, 53 111. 479 ; Atl. 476. Rutherford vs. Moore, 24 Ind. 311. 388 THE LAW OF SUEETYSHIP. §214. Same subject — Defendant's expenses in procuring a dis- solution of injunction. VVliile a defendant can not recover compensation for the loss of his own time expended in procuring a dissolution of a wrong- ful injunction/^" yet he may recover all actual and necessary disbursements in the matter of obtaining a judicial determina- tion that the injunction should not have been granted.^^^ But the expenses incurred in an unsuccessful attempt to dis- solve an injunction are not recoverable on the bond even though on final hearing the injunction is vacated. ^°^ Attorney fees expended in procuring a dissolution of an in- junction are recoverable as damages on the bond.^"^ Counsel 160 Cook vs. Chapman, 41 N. J. Eq. 152; 2 Atl. 286, Van Fleet, V. C. : " There is such a thing known to the law as damage without in- jury, and this occurs where damage results from an act or omission which the lav doea not esteem an imjury. . . . Every litigation re- quires more or less time and trouble. The law makes it the duty of liti- gants to be diligent and vigilant, but it has never been understood that a. successful litigant was en- titled, as against his adversary, to compensation for the time and at- tention which it was necessary for him to bestow upon the litigation." See also Eiggs vs. Bell, 42 La. Ann. 666; 7 South. 787. 131 Ten Eyek vs. Sayer, 76 Hun .S7; 27 N. Y. S. 588. Alliance Trust Co. vs. Stewart, 115 Mo. 236; 21 S. W. 793. In this case the expenses of taking deposi- tions in another State were allowed as damages upon the bond. In Crounse vs. Syracuse C. & N. Y. R. R. Co., 32 Hun 497, the expenses of hiring a special train to take counsel to the place where the court was in session in order to obtain a dissolution of the injunction, was considered a proper item of damages, where large property interests were involved, which were put in peril by the injunction. 152 Curtiss vs. Bachman, 110 Cal. 433; 42 Pao. 910; Allen vs. Brown, 5 Lans. (N. Y.) 511; Lyon vs. Her- sey, 22 Hun 253. Affirmed 100 N. Y. 641; 3 N. E. 797. 153 Bustamente vs. Stewart, 55 Cal. 115; Belmont Min. & Mil. Co. vs. Costigan, 21 Col. 465; 42 Pac. 650; Thomas vs. McDonald, 77 Iowa 299; 42 N. W. 301; Colby vs. Meservey, 85 Iowa 555; 52 N. W. 499; Neiser vs. Thomas, 46 Mo. App. 47; Bin- ford vs. Grimes, 26 Ind. App. 481; 59 N. E. 1085; Bush vs. Kirkbride, 30 Sou. Rep. (Ala.) 780; Nimocka vs. Welles, 42 Kan. 39; 21 Pac. 787; Cook vs. Chapman, 41 N. J. Eq. 152 ; 2 Atl. 286 ; City of Helena vs. Brule, 15 Mont. 429; 39 Pac. 456, 852; New Nat. Turnpike Co. vs. Du- laney, 86 Ky. 516; 6 S. W. 590. Contra — Oliphant vs. Mansfield, 36 Ark. 191: Sensenig vs. Parry, 113 Pa. 115; 5 Atl. 11; Jones vs. Rosedale St. Ry., 75 Tex. 382; 12 S. W. 998. JUDICIAL BONDS. 389 fees for dissolution of an injunction are not allowed in the Fed- eral Courts/^* although recovery can be had in a State Court upon a bond filed in a Federal action.^'"' It is held that attorney fees contracted for, but not actually paid, can be recovered/^" Where the injunction is merely incidental to some other re- lief sought, and the injunction is dissolved as a part of the final disposition of the case, no recovery for attorney fees can be had on the bond."' Where the motion to dissolve is unsuccessful, attorney fees incurred in the preparation and hearing of such motion, can not be recovered, although the injunction is finally dismissed. '°* 154 " There is no fixed standard by which the honorarium can be meas- ured. Some counsel demand much more than others. More counsel may be employed than are necessary. When both client and counsel know that the fees are to be paid by the other party there is danger of abuse. A reference to a master, or an issue to a jury, might be necessary to ascertain the proper amount, and this grafted litigation might pos- sibly be more animated and pro- tracted than that in the original cause." Oelrichs vs. Spain, 15 Wall. 211. 155 Mitchell vs. Hawley, 79 Cal. 301; 21 Pac. 833; Hannibal & St. J. R. R. Co. vs. Shepley, 1 Mo. App. 254; Wash vs. Lackland, 8 Mo. App. 122; Aiken vs. Leathers, 37 La. Ann. 482. 156 Holthaus vs. Hart, 9 Mo. App. 1; Crounse vs. Syracuse C. & N. Y. R. R. Co.. 32 Hun 497; Wittieh vs. O'Neal, 22 Fla. 592; Underbill vs. Spencer, 25 Kan. 71; MeauK vs. Pittman, 35 La. Ann. 360; Garrett vs. Logan, 19 Ala. 344; Lansley vs. Nietert, 78 Iowa 758 ; 42 N. W. 635; Noble vs. Arnold, 23 0. S. 264. Contra — Willson vs. McEvoy, 25 Cal. 169; Hooper vs. Patterson, 32 Pac. Rep. (Cal.) 514. In Scheuing vs. Cofer, 97 Ala. 726 ; 12 South. 414, it was shown that the services of counsel were ren- dered gratuitously, and it was held that no recovery for such services could be had on the bond. 57Langworthy vs. McKelvey, 25 Iowa 48 ; Ady vs. Freeman, 90 Iowa 402; 57 N. W. 879; Boiling vs. Tate, 65 Ala. 417; San Diego Water Co. vs. Pac. Coast S. S. Co., 101 Cal. 216; 35 Pac. 651; Brown vs. Bald- win, 121 Mo. 126; 25 S. W. 863; Noble vs. Arnold, 23 0. S. 264 ; Liv- ingston vs. Exum, 19 S. C. 223; Lamb vs. Shaw, 43 Minn. 507; 45 N. W. 1134; Tabor vs. Clark, 15 Col. 434; 25 Pac. 181. It is held in Kentucky that where the purpose of the suit is to obtain a perpetual injunction, and the de- fendant secures a dissolution on motion of the temporary injunction, counsel fees touching the matter of motion for dissolution are not re- coverable. Bemis vs. Spalding, 9 Ky. L. Rep. 764; Barber vs. Edelin, 9 Ky. L. Rep. 971. 158 Curtiss vs. Bachman, 110 Cal. 433; 42 Pac. 910; Cunningham vs. Finch, 88 X. W. (Neb.) 168. 390 THE LAW OF StTEEiYSHIP. Attorney fees in modifying an order of injunction can not be recovered on tk© bond.^^" The court "will consider only the necessary counsel fees, and where several counsel are employed, no recovery can be had, except for such sum, and for such a number of counsel as seems to be reasonably necessary in resisting the injunction/"" Where no motion is made to dissolve the injunction until the final hearing of the ease on its merits, and the injunction is then dissolved, no recovery can be had for counsel fees/°^ Services rendered by counsel in resisting the allowance of an injunction are not recoverable as damages, as such charges are incurred before the injunctidii is issued, and so are not the re- sult of it."' §215. Attachment bonds. The statutory remedy of attachment gives rise to three classes of bonds. (1) Bonds to procure an attachment wherein the plaintiff obligates himself with sureties to pay to the defendant such damages as he suffers in consequence of the attachment if it is finally determined that the writ is wrongful and should not have been allowed. (2) Bonds to release the property seized and restore it to the defendant, wherein the defendant obligates himself with In Wallace vs. York, 45 Iowa 81, But see London & Brazilian Bank the defendant's counsel in the in- vs. Walker, 74 Hun 395 ; 26 N. Y. S. junction proceeding prepared and 844. filed a motion to dissolve, and the i6o Neiser vs. Thomas, 46 Mo. necessary affidavits to sustain it, but App. 47. did not press the matter of dissolu- i8i Donahue vs. Johnson, 9 Wash. tion, and the injunction was dis- 187; 37 Pac. 322; Whiteside vs. solved at the final hearing, and the Noyac Cottage Assoc, 84 Hun 555; services of counsel in the riattei^ of 32 N. Y. S. 724 ; Anderson vs. An- the motion to dissolve were conSid- derson, 55 Mo. App. 268. ered to be a proper element of dam- 162 Randall vs. Carpenter, 88 N. ages. Y. 293. 1B9 Ford vs. Loomis, 62 Iowa 586; See also Youngs vs. McDonald; 67 Hi V. W. 193: 17 N. W. 910. N. Y. S. 375. JUDICIAL BONDS. 391 sureties either to pay the plaintiii's claim, if he finally obtain ■judgment, or return the property taken in attachment to be ap- plied by the plaintiff on his judgment. This bond does not affect the attachment, which still subsists, but relates wholly to the possession and custody of the property pending a final hear- ing."^' (3) Bonds to discharge the attachment wherein the defend- ant agrees to pay such judgment as the plaintiff may finally re- cover in the action, which bond is substituted for the property and is a final disposition of the attachment. There is considerable uniformity in this country in the stat- utory provisions authorizing attachment bonds. For the most part they have the same general effect and give rise to similar obligations upon the sureties. The most common condition in bonds to procure attachments is that the plaintiff vdll pay the defendant all damages which he may sustain by reason of the attachment if the order is wrong- fully obtained. In Alabama the condition is that the obligor will respond to " such damages as he may sustain from the wrongful or vexa- tious suing out of the attachment." In Indiana " all damages which may be sustained by the de- fendant, if the proceedings of the plaintiff shall be wrongful and oppressive." In Maryland " all damages which shall be recovered against the plaintiff for wrongfully suing out such attachment." These slight differences in phraseology have given rise to some discussion as to whether the " vexatious " and " oppressive " character of an attachment involves a liability on the bond, i:i certain cases, for the common law action for malicious prosecu- tion, and limits the recovery to those cases in which malice is shown.^** And also whether under the limitations of certain 183 Xhe form of forthcoming bond answer the judgment of the court in •provided for in many States, and the action. ' which hcst preserves the rights of i"* Wilson vs. Outlaw, Minor'.s both parties to the action, is that Rep. 367. " It was obvious that the ■the property or its appraised value taking and detention of his proper- »n money shall be forthcoming to ty might be ruinous to the owner. 392 THE LAW OF SUBETTSHIP. statutes, the defendant in attachment may have an action on th^ bond without first recovering or being " awarded " damages against the plaintiff. ^°'* The main purpose of the courts, however, in the interpretation of the provisions being to construe the undertaking with as much strictness as the rights of the parties will permit, and not to de- part from the literal meaning of the terms where it can be avoided. The preponderance of authority is that malice need not be shown as a basis of recovery, and that the damages need not be first adjudicated against the principal. ^216. Attachment bonds not forfeited for irregularities of exe- cution or defects in form. The statute prescribes the conditions and requirements for bonds in attachment proceedings, but these terms are for the pro- tection of the defendant and the plaintiff and his sureties who have had the benefit of the extraordinary remedy of a seizure of although there was no sort of malice or corrupt motive in the party at whose suit it might be attached. Why should the condition prescribed for the bond be ' to pay all damages sustained by the wrongful or vexa- tious suing out' if it had been the intention of the Legislature that no damages should be recovered unless for malicious suing out? If such had been their intention, would not the term malicious readily have oc- curred, and been used instead of those employed? A verbal criticism can hardly be necessary to prove that the party whose property is attached may find the proceeding wrongful and vexatious, that the su- ing it out may be ruinous to his credit and circumstances, although obtained without the least malice toward him If the plaintiff, under colour of such process, do, or ^iprocure to be done, what the law has not authorized, and the defend- ant is thereby injured, it seems clear, that he is in such case, as much as in any other, entitled to redress from the party whose illegal or ' wrongful ' act has occasioned the injury, although it may hav* been done without malice." 165 In Tennessee, where the statu- tory condition is to pay " all dam- ages which shall be recovered against the plaintiff in any suit which may be brought against him, for wrongfully suing out the at- tachment," it was held that a dis- tinct action need not first be brought against the principal. Smith vs. Eakin, 2 Sneed (Tenn.) 456. But the opposite view was taken in Georgia, Maryland and Mississip- pi under a similar statute. Sledga vs. Lee, 19 Ga. 411; McLuckie vs. Williams, 68 Md. 262; 12 Atl, 1; Holcomb vs. Foxworth. 34 Miss. 265. JUDICIAL BONDS. 393 the defendant's property in advance of a judicial determination that the defendant is indebted to the plaintiff, are estopped from claiming immunity from the consequences on account of the de- fects in their own proceedings. While the statute limits tlie right to have attachment to cases in which a bond is executed before the writ issues, yet if the bond is not given until after the attachment is levied, it will be bind- ing on the sureties."" And where the form prescribed by the statute is not followed, the bond is nevertheless binding.^" So a mistake in the recitals of the bond, as wbere the wrong court is named in which the action is pending,^°^ or where the penalty is in excess of the requirement of the statute,^"" or where the bond does not contain the requisite number of sure- ties "" or the sureties have not the statutory property qualifica- tions."' But where the court acquires no jurisdiction of the proceeding in attachment by reason of defects in the affidavit upon which it was issued, the sureties are not estopped from setting up such defense."" §217. Whether damages for malicious prosecution are recover- able upon bond to procure attachment. While it is conceded generally that recovery can be had upon a bond to procure attachment without alleging and proving malice, it is somewhat mooted whether the common law remedy of trespass on the case for malicious abuse of the process of the court can be prosecuted against the sureties upon the bond, or 186 Sumpter vs. Wilson, 1 Ind. i''i Gibbs vs. Johnson, 63 Mich. 144. 671; 30 N. W. 343. 16T Sheppard vs. Collins, 12 Iowa "'2 Murphy vs. Montandon, 2 Ida- 570; Wright vs. Keyes, 103 Pa. 567. ho 1048; 29 Pac. 851. 168 Ripley vs. Gear, 58 Iowa 460; See also Zechman vs. Haak, 85 12 N. W. 480. Wis. 656 ; 56 N. W. 158 ; Cadwell vs. '69 Hibbs vs. Blair, 14 Pa. 413. Colgate, 7 Barb. 253. 170 Ward vs. Whitney, 8 N. Y. 442. 394 THE LAW OF SLiEETYSiJir. whether the defendant is limited to his costs. and expenses in dis- solving the attachment, the injury to his property, and the loss incident to its detention. It was held in Tennessee and in several other States that a recovery could be had on the bond both for the statutory penally' and the common law penalty for malicious prosecution/'^ It is held, however, that the malice of an agent in suing out an at- tachment will not render the principal liable on the bond for exemplary damages.^'* The Kentucky Court of Appeals in an elaborate and forcible argument maintains the view that to impose a liability on the bond sufficient to embrace every injury, both direct and indirect, that the defendant might sustain, would render the remedy by attachment impracticable, and defeat in a great measure the object of the statute, because of the difficulty in executing the necessary bond.^'° 173 Smith vs. Eakin, 2 Sneed (Tenn.) 456; Eenkert vs. Elliott, 79 Tenn. 235. The same rule is applied in Texas. Wallace vs. Finberg, 46 Tex. 35; , Mayer vs. Duke, 72 Tex. 445 ; 10 S. W. 565. See also Seattle Crockery Co. vs. Haley, 6 Wash. 302; 33 Pae. 650; Baldwin vs. Walker, 94 Ala. 514; 10 South. 391. iJiTynburg vs. Cohen, 67 Tex. 220; 2 S. W. 734; Baldwin vs. Walker, 94 Ala. 514; 10 South. 391; Seattle Crockery Co. vs. Haley, 6 Wash. 302; 33 Pac. 650. 175 Pettit vs. Mercer, 8 B. Mon. (Ky.) 51. "The extent to which the plaintiff has a right to recover in a suit of this kind, or in other words, his right to damages com- mensurate to the injuries sustained by him in consequence of the ex- traordinary proceeding by attach- ment, forms the chief subject of in- quiry in this case. Has he a right to show that his credit has b?en seriously affected, his sensibilities! wounded, and his business opera- tions materially deranged, in conse- quence of the attachment having been sued out; and to rely upon these matters to enhance the amount of damages ? Or is he to be confined to the costs and expenses incurred by him, and such damages as he may have sustained by a deprivation of the use of his property, or any injury thereto, or loss or destruc- tion thereof, by the act of the plain- tiff in suing out the attachment? .... If an order has been obtained without just cause, and an attach- ment has been issued, and acted on in pursuance of the order, the terms of the bond secure to the defendant in the attachment all costs and dam- ages that he has sustained in conse- quence thereof. The condition of the bond is satisfied, and its terms substantially complied with by se- ruring to him damages adequate to .lUlJlCIAl BONUS. 395 i;218. Forthcoming or redelivery bonds. A forthcoming bond is either executed directly tO' the plain- tilt' in the action, or to the officer holding the writ for the benefit of the plaintiif, and provides for the return of the property in case judgment is awarded tha plaintiff, or in default of a return of the property, to pay the plaintiff's judgment, or in some juris- dictions to pay the appraised value of the property to apply on the plaintiff's jud^nent.^'" Such bond does not affect the attachment itself, and proceed- ings may thereafter be maintained to dissolve the attachment, and action for wrongful attachment instituted the same as if the forthcoming bond had not been given. The execution of the agreement to return the property in case the plaintiff recovers a judgment, is not an admission that the attachment was right- fully obtained, and is only binding upon the obligors in case tlie attachment is still subsisting at the time the judgment is en- tered."' Although the bond for release of the attached property is not in the form required by statute, it will be binding on the surety if the property is in fact released, such as where the only condi- the injury to the property attached, S. C. 514; Commonwealth vs. Mag- and the loss arising from the depri- nolia Villa Land Co., 163 Pa. 99 ; ration of its use, together with the 29 Atl. 793. actual costs and expenses incurred. i76 in Ohio, the re-delivery Stat- It cannot be rationally presumed ute provides " The sheriflf shall de- ihat the Legislature designed to liver the property attached to the impose on the security in the bond person in whose possession it was a more extensive liability. The stat- found, upon the execution by such ute is remedial in its character, and person, in the presence of the sher- should be expounded so as to ad- iff, of an undertaking to the plain- vance the object contemplated. To tiff, with sufficient surety, resident impose an almost unlimited liability in the county, to the effect that the on the security in the bond, suffi- parties to the same are bound, in cieut to embrace every possible in- double the appraised value of the jury that the defendant might sus- property, that the property or its tain, would be in effect, to defeat in appraised value in money, shall be a great measure, the object of the forthcoming to answer the judgment statute, by rendering it difficult, if of the court in the action." R. S. not impracticable, for the plaintiff 0., Sec. 5529. to execute the necessary bond." I'l Alexander vs. Jacoby, 23 0.- S. See also MeClendon va. Wells, 20 358. 396 THE LAW OF SUEETTSHIP. tion of the bond is to pay whatever judgment is obtained against the plaintiff, whereas the statute provides for a re-delivery bond in the usual form.^^' So also, where the statute provides for a release of attached property on the giving of a bond but requires an order of court as a preliminary condition, the failure to secure the order of court will not invalidate the bond/'^ No recovery can be had on a forthcoming bond unless the property is actually delivered to the defendant in accordaace with the terms of the bond. Thus where the sheriff immediate- ly seizes the property released under another attachment,^*" or retains the property because of the insufficiency of the sure- ties/" Where by mistake the bond was written conditioned for the dissolution of the attachment, although intended as a forthcom- ing bond and the property released to the defendant, it was held that no recovery could be had on the bond, since the attachment was not in fact dissolved. ^^^ §219. Bonds to discharge attachment. A bond to dissolve or discharge an attachment is a final dis- position of the attachment proceeding and is a substitution of the security of the bond for the lien acquired on the property. A motion to dissolve the attachment is no longer necessary after the filing of such bond and if such motion is pending, the bond operates to dismiss it, since the attachment being dissolved by the bond, leaves nothing upon which an order of the court can operate. The obligors on such bond are bound unconditionally to per- form the judgment of the court, and they constructively admit 178 Wright vs. Keyes, 103 Pa. 567. See also Eddy vs. Moore, 23 Kas. "9 Sullivan vs. Williams, 43 S. 0. 113. 489; 21 S. E. 642. isi Cortelyou vs. Maben, 40 Neb. ISO Schneider vs. Wallingford, 4 512; 59 N. W. 94. Col. App. 150; 34 Pac. 1109. i82 Edwards vs. Pomeroy, 8 Col. 254: 6 Pae. 829. JTTDICIAX BONDS. 397 the validity of the attachment, and will be bound whether the attachment was valid or not/*'' Where the attachment is void by reason of a prohibition of law, the bond to dissolve the attachment is also void. If the attachment is illegal because prohibited by law the bond which takes its place must also be invalid. If the attachment is a. nullity then the bond purporting to dissolve the attachment is a nullity, as there is no attachment to dissolve. '^'* 183 Hazelrigg vs. Donaldson, 59 Ky. 445; McMillan vs. Dana, 18 Cal. 339; Bowers vs. Beck, 2 Nev. 139; Ferguson vs. Glidewell, 48 Ark. 195; 2 S. W. 711; Smith vs. United States Express Co., 135 111. 279 ; 25 N. E. 525; Schuyler vs. Sylvester, 28 N. J. L. 487. But see Shevlin vs. Whelen, 41 Wis. 88. The execution of » bond to dis- charge the attachment releases the sureties upon the original attach- ment bond from all liability. Bick vs. Lang, 15 Ind. App. 503 ; 44 N. E. 555. 184 Pacific National Bank vs. Mix- ter, 124 U. S. 721; 8 S. Ct. 718. This was an action against a Na- tional Bank with a seizure by at- tachment and a subsequent bond to discharge the attachment. Sec. 5242 of the Federal Statute provides that " No attachment, injunction, or exe- cution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any State, county, or municipal court." Waite, C. J. : " We are, therefore, of opinion that the attachments in all the suits were illegal and void, because issued without any author- ity of law. But it is insisted that notwithstanding this bonds are val- id and may be enforced. It is un- doubtedly true that the sureties on a bond of this kind are estopped from setting up, as a defense to an action for a breach of its condition, any irregularities in the form of proceeding to obtain an attachment authorized by law which would war- rant its discharge upon a proper ap- plication made therefor. As the purpose of the bond is to dissolve an attachment, its due execution im- plies a waiver both by the defendant and his sureties of all mere irregu- larities. So, too, it is no defense that the property attached did not belong to the defendant, or that it was exempt, or that the defendant has become bankrupt or is dead. In all such cases, where there was lawful authority for the attaehmout, the simple question is, whether the condition of the bond has been brok- en; that is to say, whether tliere has been a judgment in the action against the defendant for the pay- ment of money which he has neglect- ed for thirty days afterwards to make. In the present case, however, the question is whether the bond creates a liability when the attach- ment on which it is predicated was actually prohibited by law. In other words, whether an illegal and there- fore a void attachment is sufficient to lay the foundation for a valid bond to secure its formal dissolu- tion. The bond is a substitute for the attachment, although not affect- 398 THE LAW OF SURETYSHIP. Where there was a substitution of a new party defendant after the execution of a bond to dissolve the attachment, it was held that the surety was not liable for the judgment rendered against the new defendant.^*° Also where new parties were added as co-defendants it was considered that the nature of the obligation had been changed and the sureties released. ^*° §220. When action accrues upon bonds in attachment. A judicial determination that the order of attachment was wrongfully issued, constitutes a breach of the condition of the bond to procure an attachment. A judicial determination that the attaGhm.ent was rightfully issued coupled with a judgment against the defendant, is a breach of the condition of a bond to release property from the attachment, and where a bond is given to dissolve an attach- ment, a final judgment against the plaintiff is a breach of the bond. The question as to what amounts to a determination of the matters necessary to constitute a breach of a bond given in attachment proceedings has become somewhat complicated by the slight variations in the statutes which authorize the giving of the bonds. It has been strongly contended that the term " wrongful " used in the statute, relates only to cases in which it is shown that the party resorted to the remedy by attachment without sufficient ground, and that no action accrues on the bond where the attachment, is dismissed for want of prosecution, or for omissions and informalities in the proceedings not affecting the ed by all the contingencies which If the attachment itself is illegal might have discharged the attach- and therefore void, so also must be ment itself. Carpenter vs. Turrell, the bond which takes its place." 100 Mass. 450, 452; Tapley vs. See also Planters Loan & Savings Goodsell, 102 Mass. 176, 182. Such Bank vs. Berry, 91 Ga. 264;' 18 S. E. being the case, it necessarily fol- 137. lows that if there was no authority iS5 Richards vs. Storer, 114 Mass. in law for the attachment, there 101. could V>p nonp for taking the bond. ise Fumess vs. Read, 63 Md. 1. JUDICIAL BONDS. 399 merits, or where there is merisly a judgment against the plaintiff on the claim, without any adjudication of the grounds of at- tachment/" The rule has been distinctly asserted that a wrongful attach- ment can not be inferred from a voluntary dismissal of the ac- tion,^** and that the mere fact that the attachment has been dis- solved does not establish a liability against the bond without a specific determination that the writ was wrongful/*' The better reasoning seems to support the contrary view, which by analogy to the right of action upon injunction bonds,^"" is that a voluntary abandonment of an attachment proceeding must be deemed an admission that it is wrongful, for otherwise, even if wrongful in fact, the defendant would be without rem- edy as. he is deprived of an opportunity to secure an adjudica- tion dissolving the attachment/"^ The failure of the attaching plaintiff to sustain his action, is at least prima facie evidence that the attachment is wrongful, even without any adjudication on the merits of the attachment. 187 Sharpe vs. Hunter, 16 Ala. the attachment, is meant, not the 765. In this case the attachment omissions, irregularities or infor- was dismissed for informalities in malities which the officer issuing the the affidavit, and in an action upon process may have committed in its the bond it was held, that the dis- issuance, but that the party resort- missal of the attachment is not a ed to it without sufficient ground." judicial determination that the at- ■ See also Calhoun vs. Hannan, 87 tachment was wrongful. The Court Ala. 277 ; 6 South. 291 ; Petty vs. said, "What is meant by the term Lang, 81 Tex. 238; 16 S. W. 999; •wrongful,' as' used in the statute Blanehard vs. Brown, 42 Mich. 46; to which this bond conforms? Was 3 N. W. 246; Boatwright vs. Stew- it, as is contended, designed to ap- art, 37 Ark. 614. ply to defects in the form of the iss Nockles vs. Eggspieler, 47 proceeding, on account of which the Iowa 400; Rachelman vs. Skinner, attachment should be quashed, as .46 Minn. 196; 48 N. W. 776; Pettit well as to the ground upon which it vs. Mercer, 8 B. Mon. (Ky. ) 51. was to be issued ? Or was the ob- i89 Storz vs. Finklestein, 48 Neb. jeet of the framers of the act mere- 27 ; 66 N. W. 1020. ly to provide a remedy against per- i9o Ante Sec. 210. sons who should resort to this ex- i^i Steinhardt vs. Leman, 41 La. traordinary remedy to the prejudice Ann. 835; 6 South. 665; HoUings- of another without cause or suffi- worth vs. Atkins, 46 La. Ann. 515; (■lent ground therefor? We think 15 South. 77; Jerman vs. Stewart, that, by the wrongful suing out of 12 Fed. Eep. 266. 400 THE LAW OF SDBETYSHIP. There are also good grounds for holding that the sureties ar& concluded by such judgment against the plaintiff, for an at- tachment can not be otherwise than wrongful, if tiie plaintiff has no claim.^'* A dismissal of an attachment by reason of a failure of an offi- cer to perform his duty raises no presumption of wrongful suing out"^ An attachment issued upon a defective affidavit is equally burdensome upon the defendant, as if the affidavit had beon formal. A party has a right to require that the forms of law be strictly observed in all proceedings to which he is a pari y. An attachment upon a defective affidavit is vsTongful in move than a technical sense, since the defendant should not be re- quired to waive the formal defects in order to get a hearing upon the merits of the attachment. The rule that a dissolution of the attachment for cause other than on its merits is not a breach of the bond comes to this. If the defendant waives the irregularities and invokes a judicial determination of the ground of attachment, and thereby secures a dismissal, he may recover his damages on the bond, but if by requiring an observance of the forms of law in the matter of procedure, the attachment on his motion is dismissed, he waives his damages, since he thereby fails to get a dissolution on the merits of the case, which is deemed essential to an action on the bond.^"* Ho action upon a forthcoming bond accrues until. a j&nal dis- position of the case, even though the attachment has in the mean- time been sustained.^°° But action can be prosecuted upon the bond to procure an attachment whenever it is finally determined that the writ is wrongful. This may occur before final judg- i92iiarger vs. Spofford, 46 Iowa brought on the bond to recover dam - 11. ages for wrongful attachment, and 193 Offterdinger vs. Ford, 92 Va. it was held that the defense could 636 ; 24 S. E. 246. not be interposed that good grounds 19* Lobenstein vs. Hymson, 90 for the attachment existed. Tenn. 606; 18 S. W. 250. In this i»5 Hansford vs. Perrin, 6 B. Moii. case the attachment was dismissed (Ky.) 595. for defective affidavit and the action JUDICIAL tiONlv^. 401 ment on the claim, and such right arises, even though the j udg- ment on the claim is in favor of the plaintiff.^"' Where the bond is conditioned that the plaintiff shall respond in damages, if he " shall fail to prosecute his action with effect," an action on the bond after dissolution, but before final judg- ment, is premature.^'' It has been held that a judgment in favor of the principal without any adjudication upon the at- tachment, operates constructively as a dissolution of the attach- ment, and constitutes a breach of the bond.^°' Such holding is exceptional, and the general rule is that a final judgment in favor of the principal is an affirmance of an attachment/"' The sureties upon a bond to discharge an attachment are ccm- cluded by the judgment against the principal/"" §221. Good faith of the plaintiff, or probable cause for attach- ment not a defense in actions upon bonds. Though the plaintiff acts in good faith and without malice, he must nevertheless respond in damages upon his bond if the ^attachment is wrongful,^"^ neither is it any justification of a wrongful attachment that the plaintiff had good reason to be- lieve that grounds of attachment existed as set out in his affi- davit.'"' In Iowa the code exempts the plaintiff from liability where- 196 Tynberg vs. Cohen, 76 Tex. not be shown in an action upon the 409; 13 S. W. 315; Offterdinger vs. bond that the property was exempt Ford, 92 Va. 636; 24 S. E. 246; from execution, as this question is Kerr vs. Eeece, 27 Kan. 469. determined by the judgment. Lane' ■ lO'Gfunnis vs. Cluflf, HI Pa. 512; Implement Co. vs. Lowder, 65 Pa.. 4 Atl. 920; Harbert vs. Gormley, Eep. (Okl.) 926. 115 Pa. 237; 8 Atl. 415. 2oiMcDaniel vs. Gardner, 34 L.i. issSannes vs. Ross 105 Ind. 558; Ann. 341; Elder vs. Kutner, 97 Cal.- •5N. E. 699. 490; 32 Pac. 563; Churchill vs.. 199 New Haven Lumber Co. vs. Abraham, 22 111. 456. Raymond, 76 Iowa 225 ; 40 N. W. 202 Alexander vs. Hutchinson, 9' 820. Ala. 825 ; Metcalf vs. Young, 43 Ala. 200 Jayne's Exrx. vs. Piatt, 47 0. S. 643; Pollock vs. Gantt, 69 Ala. STS; 262; 24 N. E. 262. The same rule Carothers vs. Mcllhenny. 63 Tex. ■applies to the sureties upon a forth- 138. coming bond if judgment is entered Sec. 3887, Iowa Code, sustaining the attachment, it can 402 THE LAW OF SUEETYSHIP. s ]jo has reasonable cause for belief that the grounds for attach- luent existed.^"' §222. Sureties estopped from questioning the regularity of the proceedings out of which their liability arises. It is not competent for the sureties when sued upon the bond t(j question any of the proceedings wherein the facts were judi- fially determined upon which their liability rests ; even though not parties to the proceeding in which the attachment was dis- sc Ived they are nevertheless bound by it. Whether the allegations of the affidavit are true upon which the attachment rests, cannot be inquired into in the suit upon the bond.^°* All matters of form or substance necessary for the court to have adjudicated in pronouncing its judgment as to the vafidity of the attachment are conclusive upon sureties.^"^ The sureties will not be permitted to show by way of defense that the property taken is not subject to attachment, if by their undertaldng they have agreed to restore it to the defendant, such covenant must be fulfilled whether the defendant can main- tain his claim upon the property or not.^"" It is no defense upon a forthcoming bond that the officer levying the writ had no authority to do so,''"^ or that the prop- erty did not belong to the defendant.^"* 203 Nordhaus vs. Peterson, 54 Iowa 12 Fed. Rep. 2ti6; Huff vs. Huteli- 68; 6 N. W. 77; Charles City Plow Inson, 14 Howard 586. Co. vs. Jones, 71 Iowa 234; 32 N. Contra — Sloan vs. Langert, 6 W. 280. Wash. 26; 32 Pac. 1015. 204 Bennett vs. Southern Bank, But see Seattle Crockery Co, vs. 61 Mo. App. 297; VurplUat vs. Haley, 6 Wash. 302; 33 Pac. 650. Zehner, 2 Ind. App. 397 ; 28 N. 200 McMillan vs. Dana, 18 Cal. W. 556. 339; Pierce vs. Whiting, 63 Cal. 205 Pusz vs. Trager, 39 La. Ann. 538 ; Hobson vs. Hall, 14 S. W. 2;:2; 1 South. 525; Jaynes vs. (Ky.) 958. Piatt, 47 0. S. 262; 24 N. E. 262; 207 Abbott vs. Williams, 15 Goebel vs. Stevenson, 35 Mich. Colo. 512; 25 Pac. 450. 172 ; Guthrie vs. Fisher, 2 Idaho 208 Klippel vs. Oppenstein, 8 101; 6 Pac. Ill; Hoge vs. Norton, Colo. App. 187; 45 Pac. 224. 22 Kan. 374; Jerman vs. Stewart. J UDICIAL BONDS. 403 §223. Exoneration of sureties in attachment proceedings. The defendant in attachment who executes a forthcoming bond is exonerated from liability by delivering up, or offering to deliver, the property seized under the writ, but it is not a suffi- cient compliance with this duty to merely tell the plaintiff or the officer where the property is.^"' The bond cannot be exonerated pro tanto by a delivery of a part of the attached property.^^" It is held that if the identical property is delivered, the bond is satisfied, even though the property has been damaged while in the custody of the obligor. ^^' If a subsequent bond to discharge the attachment is executed, the forthcoming bond is exonerated. ^^'^ Where there is an amendment to the attachment process, such as a discontinuance as to one party and a substitution of a new ■party, a prior bond to discharge the attachment is exonerated. ^^* But such rule is not applied where a new party is added by amendment, without a discontinuance of the process against the parties originally served. ^^* Amendments to the petition or declaration which do not change the cause of action do not exonerate the prior bonds. ""^^ An alteration of the date when the writ was returnable, with 208Chapline va. Robertson, 44 21* Christal vs. Kelly, 88 N. Y. Ark. 202. 285. 210 Bland vs. Creager, 13 B. Mon. 215 Jayne's Ex. vs. Piatt, 47 O. S. (Ky.) 509; Metrovlch vs. Jovovich, 262; 24 N. E. 262; Kellogg vs. 68 Cal. 341. Kimball, 142 Mass. 124; 7 N. E. 211 Jones vs. Jones, 38 Mo. 429. 728. But see Schuyler vs. Sylvester, 28 See also Townsend Nat. Bank vs. N. J. L. 487; Bell vs. Western Riv- Jones, 151 Mass. 454; 24 N. B. 593. er Imp. Co., 60 Ky. 558. Where the amendment was as to 212 Dearborn vs. Richardson, 108 the amoilut claimed, and it was Mass. 565. held that while the bond was not 213 Tucker vs. White, 5 Allen liable for the increased damages 322; Richards vs. Storer, 114 Mass. claimed by the plaintiff, it was 101 ; Adams vs. Jacoway, 34 Ark. not thereby exonerated as to tha 542. original amount claimed. 404 THE LAW OK SUIJKTYSiLll*. the consent of the parties, but without the consent of the suretips, , was deemed an exoneration of the bond as to the sureties. ^^° !N^o recovery can be had upon a discharge bond if the judgment against the defendant is void. Thus where no summons was served upon the defendant, the judgment being void for want of service, no liability attaches to the sureties upon the bond.^" It is held that a reference of the case to arbitrators and a find- ing against the defendant is not such a variance from the condi- tions of the discharge bond as will release the sureties. ^^' A judgment against one of several defendants and in favor of the others constitutes a breach of a bond to discharge an at- tachment, and the sureties cannot claim exoneration even thou 'Ij the condition of the bond is to pay any judgment that may be rendered against the " defendants." "^^ §224. Attachment bonds are available in any court to wMch the case is taken on appeal. An attachment bond is available in any court to which the case goes by appeal or error proceedings, even though the condi- tions of the bond do not so provide.^^" But where judgment was against the plaintiff, and the at- tachment dissolved, and the plaintiff appealed from the judg- pient, it was held that the adjudication dissolving the attach- ment was final, and unless specially appealed from, released the sureties notwithstanding the plaintiff obtained judgment upon his claim in the Appellate Court.^^^ Where the defendant appeals, and judgment is against him in the Appellate Court, the plaintiff may elect whether he will proceed against the sureties upon the attachment bond or the appeal bond."^" 210 Simeon vs. Cramm, 121 Mass. 220 Ball vs. Gardiner, 21 Wend. 492. 270; Bennett vs. Brown, 20 N. Y. 2" Clark vs. Bryan, 16 Md. 171. 99; State vs. McGlothlin, 61 Iowa See also Jewett vs.* Crane, 35 312; 16 N. W. 137. Barb. 208. 221 Barton vs. Thompson, 66 Iowa 2i8Seavey vs. Beckler, 132 Mass. 526; 24 N. W. 25. 203. 222Chrisman vs. Rogers, 30 Avk. 2ii>Gilmore vs. Crowell. 67 Barb. 351. 62. JtTDICIAL BONDS. 405. §225. Measure of damages in actions upon attachment bonds. The actual loss of the defendant in consequence of a wrongful attacliment may he recovered on the hond. This may include the depreciation in the value of the property while in the hands of the officer,^^^ and the loss of the use of the property.^^* The expenses of the defendant in securing a dissolution of the attachment, such as the value of his own time,^^^ or travel- ling expenses and hotel bills incurred in attending thie hearing upon the attachment,^^" are recoverable on the bond. It is held that recovery can be had as compensation for the annoyance and mortification to defendant by a wrongful and vexatious attachment. ^^^ Only those injuries which are the direct result of the wrong- ful attadiment can be recovered. Speculative damage, however probable, will be exeluded.^^' Injury to the credit of the de- fendant in attachment is generally considered too remote a con- sequence, and not a proper element of damage.^^" 223Fraiikel vs. StSin, 44 Cal. 168; Hoge vs. Norton, 22 Kan. 374. In this case cattle were seized in at- tachment and the loss alleged was the failure to secure the natural and expected increase of weight, be- cause of the removal of the cattle by the sheriff to a new range where the feed and water were limited, and this was held to be a proper measure of damages. 224Hurd vs. Barnhart, 53 Cal. 97; Boatwright vs. Stewart, 37 Ark. 614; State vs. McKeon, 25 Mo. App. 667. 225Higgins vs. Mansiield, 62 Ala. 267; Sanford vs. Willetts, 29 Kan. 647. 226 Damron vs. Sweetser, 16 111. App. 339; State vs. Shobe, 23 Mo. App. 474. 227 Floyd vs. Hamilton, 33 Ala. 235; Byrne vs. Gardner, 33 La. Ann. 6. 228Higgins vs. Mansfield, 62 Ala. 267. In this ease recovery was sought for loss resulting from a de- moralization of plaintiff's workmen during his absence attending the at- tachment suit. 229Holliday vs. Cohen, 34 Ark. 707 ; Goodbar vs. Lindsley, 51 Ark. 380; 8 S. W. 132. In this case the defendant suffered great damages in consequence of numerous execu- tions, which were precipitated by the wrongful attachment, but the injury was considered too remote for recovery on the bond. Oberne vs. Gaylord, 13 111. App. 30; Camp- bell vs. Chamberlain, 10 Iowa 337; Pettit vs. Mercer, 8 B. Mon. (Ky;) 51; Seattle Crockery Co. vs. Haley, 6 Wash. 302; 33 Pac. 650. But see State vs. Andrews, 39 W. Va. 35; 19 S. E. 385; Meyer va. Pa- gan, 34 Neb.. 184; 51 N. W. 753; Northampton Na;t.. Bank vs., Wjjlje, 406 TUB LAW OF SUEETYSHIP. Where moneys due the defendant are tied up by garnishment, recovery may be had for interest on the fund while it is de- tained.^'" Where the property attached did not belong to the defendant, it was held that he was not entitled to recover his expenses in- curred in the discharge of the attachment. ^^^ Where the property is already incumbered with liens equal to its value, the sureties upon the forthcoming bond will only be liable for nominal damages for failure to deliver.^''' Reasonable attorney fees paid in resisting the attachment may be recovered as damages.''^' Such fees must, however, be actually paid or contracted for before they become a subject of damages.^'* It is held that the giving of notes for counsel fees is sufficient payment to justify a recovery. ^'° Counsel fees in- curred in the trial of the case on its merits are not recoverable on the bond, even though the result of the trial is a dissolution of the attachment. ^"^ 52 Hun 146; 4 N. Y. S. 907; Marx vs. Leinkaufif, 93 Ala. 453; 9 South. 818. ?30 Fourth Nat. Bank vs. Mayer, 96 Ga. 728; 24 S. B. 453; Green Fruit Co. vs. Pate, 99 Ga. 60; 24 S; E. 455. 231 Tebo vs. Betancourt, 73 Miss. 868; 19 South. 833. 232Hayinan vs. Hallam, 79 Ky. 389. 233Trapnall va. McAfee, 60 Ky. 34; Marchand vs. York, 10 Ky. L. Rep. 777; Northrup vs. Garrett, 17 Hun 497; Damron vs. Sweetser, 16 111. App. 339 ; State vs. McKeon, 25 Mo. App. 667; Adams vs. Gomila, 37 La. Ann. 479 ; Byrne vs. Gard- ner, 33 La. Ann. 6; Green Fruit Co. vs. Pate, 99 Ga. 60; 24 S. E. 455; Swift vs. Plessner, 39 Mich. 178. Contra — Heath vs. Lent, 1 Cal. 410; Commonwealth vs. Meyer. 170 Pa. 380; 32 Atl. 1044; Littleton vs. Frank, 70 Tenn. 300; Plumb vs. Woodmansee, 34 Iowa 116. Attorney fees are not allowed as damages upon attachment bonds in the Federal Courts, where not eon- trolled by state practice. Bucki & Son Lumber Co. vs. Fidelity & De- posit Co., 109 Fed. Rep. 393. Dis- senting opinion, Shelby, J. The holding of the majority of the Court allowing attorney fees was based upon a construction of the Florida Statute. 234Shultz vs. Morrison, 60 Ky. 98; Raymond vs. Greene, 12 Neb. 215; 10 N. W. 709. 235 State vs. Gage, 52 Mo. App. 464. 236 state vs. Heekart, 62 Mo. App. 427. But see Dothard vs. Sheid, 69 Ala. 135; Wilson vs. Root, 43 Ind. 486. JUDICIAL BONDS. 40T Where jurisdiction of the defendant is obtained solely by the attachment, as where the property of a non-resident is seized, there would seem to be a special ground for allowing as damages counsel fees paid in defending principal action.'''^ §226. Replevin bonds. An action in replevin is instituted for the purpose of taking forcible possession of personal property under a claim of owner- ship or right of possession adverse to the one having the custody and control of the property. The primary motive of the plaintiff in replevin is to recover the property in specie, and this is the most valuable object ob- tained by the Avrit. The possession of the property in specie is, however, as valuable a right to the defendant as to the plaintiff.' And it is of the highest importance that the party who asserts claims upon personal property in the possession of another, and by forcible invasion, aided by the machinery of the law, seizes and takes it away, should be required to fully indemnify the de- fendant against the consequences, in case the action of the plain- tiff is adjudged vsrrongful. Accordingly wherever the action of replevin is in force the giving of a preliminary bond is jurisdictional, and the court has no authority to order the vsrrit, or the officer to sei^e it, except upon the condition of the execution of a bond.^^^ The imperative statutory requirement of a bond cannot be dispensed with even by a deposit of money in lieu of the bond."''* 237 Buckley vs. Van Diver, 70 takes possession of property under Miss. 622; 12 South. 905. a bond, defective either in form or Contra — Frost vs. Jordan, 37 in respect to the solvency of the Minn. 544; 36 N. W. 713. sureties, that the Court may order 238DoweIl vs. Richardson, 10 Ind. the defects to be remedied, and eii- 573; Garliu vs. Strickland, 27 Me. force the order by the imprisonment 443; Bent vs. Bent, 43 Vt. 42; of the plaintiff until the order is. Graves vs. Sittig, 5 Wis. 219. complied with. Sec. 5147. In Tennessee the Code provides 239 Cummings vs. Gann, 52 Pa, that in ease a plaintiff in replevin 488. 408- THE LAW OF- SUEETYSHIP. §227. Conditions of bonds in replevin; A bond in replevin must contain at least three conditions in ' ■order to fully protect the rights of the defendant. (1) That the plaintiff will prosecute his action with dili-- gence. (2) That the plaintiff will restore the property of the de-.. f endant, or pay its value in money, in case it is determined that the seizure was wrongful. (3) That the plaintiff will pay the defendant such damages, as he suffers by the wrongful seizure and detention. These are the customary requirements of thd statutes, but the bond will not be void even though the conditions imposed by statute are not incorporated in the undertaking.^*" The officer serving the writ is usually made the sole judge - §240. Who may maintain action on administration bonds; If an administrator is removed or for any other cause the ■office becomes vacant, the common law confers upon his successor •Grat. (Va.) 248; Burton vs. An- derson, 5 Har. (Del.) 221. In Wilson vs. Wilson, 17 O. S. 150, it was held that where a party is acting in a double capacity, and is possessed of a, fund in one ca- pacity which it is his duty to trans- fer to himself in another, that such transfer will be presumed, the vs. State, 31 Ark. 53; Rupert vs. tion was to appear at a special term People, 20 Colo. 424 ; 38 Pac. 702. of the United States District Court But see Jones vs. Gordon, 82 Ga. thereafter to be called. 570; 9 S. E. 782. But see State vs. Ansley, 13 La. 348 Harris vs. State, 60 Ark. 212; Ann. 298. Where the appearance 29 S. W. 751. was to be " when notified " this was 349 State vs. Nicol, 30 La. Ann. considered sufficiently definite. 628 ; State vs. Hendricks, 40 La. In Kellogg vs. State, 43 Miss. 57, Ann. 719; 5 South. 24; United the term of the Court and the day States vs. Wallace, 46 Fed. Rep. of the week and month was stipu- 569; Peck vs. State, 63 Ala. 201; lated, but the year was omitted, — Junction City vs. Keeife, 40 Kas. held, that the next term of court was 275 ; 19 Pac. 735. sufficiently indicated, and that the In Dilley vs. State, 2 Idaho 1012; sureties were liable. 29 Pac. 48, it was held that the ssi O'Neal vs. State, 35 Tex. 130. sureties upon a bail bond cannot 352 Brite vs. State, 24 Tex. 219. question the jurisdiction of the See also Peoole vs. Welch 47 masistr.ntp who took thp bond. How. Pr. 420. Where the conditioa JUDICIAL BONDS. 433 Where the bond recites a date when no court is held, and there is nothing in the undertaking or the record from which it can be inferred that the next term of court was intended, the instru- ment is void.'" If the defendant appears at the " next term " as set out in the bond, and the cause is continued, the bond will remain in force from term to term, unless renewal bond is substituted, and the sureties will be held for the defendant's non-appearance at a subsequent term.'°* This construction will not, however, apply except to continuances in regular succession in the course of the business of the court, a stipulation between the defendant and the prosecution postponing the trial to some future term of court, the sureties not consenting, will discharge the bail. This was so held where an entry was made on the minutes of the court post- poning the trial until the determination of cases pending in an- other court.'^^ But the liability of the sureties is not affected by was the next term of court, but, by clerical error, a date was named which was already past. To the same effect see State vs. Lay, 128 Mo. 609; 29 S. W. 999; Allen vs. Commonwealth, 90 Va. 356; 18 S. E. 437. But see Wegner vs. State, 28 Tex. App. 419; 13 S. W. 608. Where the impossible date "A. D. 188- " was named as the time of appearance and the bond was held to be de- fective. 353 Burnett vs. State, 18 Tex. App. 283; Treasurer of Vermont vs. Merrill, 14 Vt. 64. 354 Stokes vs. People, 63 111. 489 ; State vs. Smith, 66 N. C. 620; Pickett vs. State, 16 Tex. App. 648; People vs. Hanan. 106 Mich. 421; 64 N W. 328; Ramey vs. Com- monwealth, 83 Ky. 534; Rubush vs. State, 112 Ind. 107; 13 N. E. 877; State vs. Benzion, 79 Iowa 467; 44 N. W. 709; State vs. Breen, 6 S. , D. 537; 62 N. W. 135. Contra — Colquitt va. Smith, 65 Ga. 341. 355 Reese vs. United States, 9 Wall. 13, Field, J.: "If, now, we apply the ordinary and settled doc- trine, which controls the liabilities of sureties, it must follow that the sureties on the recognizance in the suit are discharged. The stipula- tion, made without their consent or- knowledge, between the principal and the government, has changtd the character of his obligation; it has released him from the obligation, which they covenanted that he- should comply, and substituted an- other in its place. It is true, the rights and liabilities of sureties on a recognizance are in many respects, dififerent from those of sureties on- ordinary bonds or commercial con- tracts. The former can at any time discharge themselves from liability by surrendering their principal, and they are discharged by his death. The latter can only be released bv 434 THE LAW OF SUBETYSHIP. an order of court changing the date of the term, as the sureties will be deemed to have had in contemplation the possible exer- (iise of this power by the court.^^° §247. Same subject — Place of appearance. There can be no forfeiture of a bail bond unless a place of appearance is definitely specified in the undertaking. ^^^ A con- dition expressed in the alternative is held to be void for uncer- tainty as where a magistrate takes a recognizance conditioned for an appearance before him or some other magistrate.'^* So also a bail to appear before a court which has no existence.'^' In a case where the judge, without statutory authority, and of his own motion, ordered a change of venue, it was held that the failure of the accused to appear in the court to which the case was transferred was not a forf eitur© of the bail,^°° although payment of the debt or perform- ance of the act stipulated. But in respect to the limitations of their liability to the precise terms of their contract, and the effect upon such liability of any change of the terms without their consent, their positions are similar. And the law upon these matters is perfectly well settled. Any change in the con- tract, on which they are sureties, made by the principal parties to it without their assent, discharges them, and for obvious reasons. When the change is made they are not bound by the contract in its original form, for that has ceased to exist. They are not bound by the contract in its altered form, for to that they have never assented. Nor does it matter how trivial the change, or even that it may be of advantage to the sureties. They have a right to stand upon the very terms of their undertaking." ■''56 State vs. Aubrey, 43 La. Ann. , 1S8; 8 South. 440. 357 Barnes vs. State, 36 Tex. 332; Vivian vs. State, 16 Tex. App. 262; Pill vs. State, 43 Neb. 23; 61 N. W. 96; Hutchinson vs. State, 43 Tenn. 95. 358 State vs. Allen, 33 Ala. 422. 359 Coleman vs. State, 10 Md. 168. In this case the recognizance was to appear before the " County Court," and the Bail was held to be void, there being no such court, the court by this name having been pre- viously abolished and a " Circuit " Court established in its place. But see Petty vs. People, 118 111. 148; 8 N. E. 304. The condition of the recognizance was that the ac- cused should appear before the " Criminal Court " and there was no such court, but the Circuit Court was vested with exclusive criminal jurisdiction. This was held to be sufficiently definite. 360 Adams vs. People, 12 111. App. 380; State vs. Young, 20 La. Ann. 397. JUDICIAL BONDS. 435 a transfer of the case in accordance with authority conferred by law binds the sureties for the appearance of the accused in the court to which the case is transferred/^^ Also where by act of Legislature all pending criminal cases are transferred to another court, the parties to^ an undertaking in bail are bound for the ap- pearance of the defendant in the substituted court ^°^ It was held that where a prosecution was removed from the State Courts to the Federal Courts in accordance with the pro- visions of law, that the bail was incident to the prosecution, and followed the case into the Federal Court, and would not be for- feited by a failure to appear in the State Court as recited in the bond.'"' §248. Defenses against bail bonds. The sureties can not defend against a recognizance, where the defendant fails to appear, on the ground that the indictment or information is defective,'"* or that the defendant was illegally taken into custody,'"' or that the bail was executed before the accused was arrested, as his appearance for the purpose of exe- cuting the recognizance places him in legal custody and waives the irregularity.'"" Where conditions are imposed not required by law, the bond will not be void, but the unauthorized conditions will be considered as surplusage and the bond held effective as to the other terms.'"' 3S1 Pearson vs. State, 7 Tex. App. 60 Ark. 209; 29 S. W. 640; Sharpe 279; Beasley vs. State, 53 Ark. 67; vs. Smith, 59 Ga. 707; State vs. 13 S. W. 733; State vs. Brown, 16 Boston, 63 Mo. 521; State vs. Sure- Iowa 314. ties of Krohne, 4 Wyo. 347 ; 34 Pac. 302 Ramey vs. Comm., 83 Ky. 534. 3. 363 Davis vs. South Carolina, 107 365 Littleton vs. State, 46 Ark. U. S. 597; 2 S. Ct. 636. 413. 364 United States vs. Evans, 2 see Vias vs. Comm., 7 Ky. L. Rep. Fed. Rep. 147; Hardy vs. United 742. States, 71 Fed. Rep. 158; State vs. But see Deer Lodge Co. vs. At., Livingston, 117 Mo. 627; 23 S. W. 3 Mont. 168, where recognizance 766 ; State vs. Morgan, 124 Mo. 467 ; taken before any written complaint 28 S. W. 17; Hester vs. State, 15 was filed was declared void. Tex. App. 418 ; Lee vs. State, 25 Tex. See also Hodges vs. State, 20 Tex. App. 331 ; .8 S. W. 277 ; Friedline vs. 493. State, 93 Ind. 366; Harris vs. State, 3«7 State vs. Adams, 40 Tenn. 259; 436 THE I.AW OF SOBETYSHIP. If the bond fails to specify any offense for which the bail is given, the undertaking is void/"* but it ■will be sufficient if the bond specifies the offense in general terms.^®' Where the bond describes one offense, and the indictment is for another and different offense, the variance will invalidate the bail,^'° but if the variance is merely one of degree, such as a recognizance for robbery and an indictment for petit larceny, the bond is not invalidated.^'^ A bail bond conditioned to answer for an act which is not an offense against the law is not binding on the sureties. It was held that a recognizance to appear and answer for " a charge of gaming," ^'^ or for " being concerned in a row," ^'* or " unlaw- fully selling mortgaged property," ^'* is not binding since no indictable offense is charged. It is no defense to an action upon a bail bond that there was no indictment rendered against the accused. The sureties un- State vs. Crowley, 60 Me. 103; State vs. Cobb^ 71 Me. 198. But see Durein vs. State, 38 Kan. 485; 17 Pae. 49; Turner vs. State, 14 Tex. App. 168. 368 Horton vs. State, 30 Tex. 191 ; Littlefield vs. State, 1 Tex. App. 722; Waters vs. People, 4 Col. App. 97 ; 35 Pac. 56 ; State vs. Wooten, 4 La. Ann. 515; Simpson vs. Comm., 31 Ky. 523. Contra — People vs. Gillman, 125 N. Y. 372; 26 N. E. 469. " Being the voluntary act of the party, the un- dertaking permits the presumption of regularity of the proceedings, and by coming into the proceeding in that manner, in behalf of the ac- cused, the surety will be presumed to know upon what charge the pris- oner was held by the sheriff. The statement of the offense charged, therefore, is not of the essence of the undertaking of bail, nor does it bear materially upon the obliga- tion." 3«9 State vs. Merrihew, 47 Iowa 1 12 ; People vs. Dennis, 4 Mich. 609. 370 Reese vs. People, 11 111. App. 346; State vs. Forno, 14 La. Ann. 450; Draughan vs. State, 35 Tex. Cr. Eep. 51; 35 S. W. 667. Gray vs. State, 43 Ala. 41. In this case the recognizance was to answer the charge of perjury, and the indictment was for burglary. Addison vs. State, 14 Tex. App. 568, where the recognizance was for theft and the indictment for swin- dling. Contra — People vs. Meaeham, 74 111. 292. 37iMudd vs. Comm., 14 Ky. L. Rep. 672. See also Comm. vs. Teevens, 143 Mass. 210; 9 N. E. 524; State vs. Bryant, 55 Iowa 451; 8 N. W. 303. 372Tousey vs. State, 8 Tex. 173. 373 State vs. Ridgley, 10 La. Ann. 302. 374 Cravey vs. State, 26 Tex. App. 84; 9 S. W. 62. JUDICIAL BONDS. 437 dertake for the appearance of their principal at the time and place set out in the bond, and the bond is forfeited if he does not appear. The failure to indict does not of itself discharge the accused. His discharge still rests in the discretion of the eourt.^'^ The obligation of the surety is that the accused will appear at the time named in the bond, and it will be no defense that after the bond was declared forfeited the accused appeared to ajiswer the charge."" It was held that a subsequent appearance and trial will re^ lease the sureties from the technical forfeiture.''^' §249. Discharge or exoneration of bail. , A surrender of the accused to .the proper public officer dis- charges the bail at once from all liability. Such surrender may be mad© at any time before the case is called for trial. ^'* The principal, in the contemplation of the law, is continually in the custody of his sureties and they may at any time cause his 3" Champlain vs. People, 2 N. Y. 256; 13 South. 538; McCoy vs. 82. "After the discharge of the State, 37 Tex. 219; State vs. Mill- grand jury, prisoners charged with saps, 69 Mo. 359; Mooney vs. Peo- offences and not indicted are not pie, 81 111. 134; Hinksou vs. entitled to be set at liberty, if satis- Comm., 14 Ky. L. Rep. 203. factory cause be shown for detaining 376 Hangsleben vs. People, 89 111. them in custody, until the meeting 164; State vs. Scott, 20 Iowa 63; of the next grand jury. Under like State vs. Emily, 24 Iowa 24; State circumstances, persons out on bail vs. McGuire, 16 E. I. 519; 17 Atl. are continued under recognizance 918; Lee vs. State, 25 Tex. App. 331; when not discharged. 8 S. W. 277; Sproat vs. Comm., 4 " It is necessary, for the most ob- Ky. L. Eep. 629. vious reasons, that this power of de- s?'? Bearden vs. State, 89 Ala. 21; tentlon should exist and be occa- 7 South. 755 ; State vs. Burnham, 44 sionally exercised. Offenders would Me. 278; State vs. Sehexneider, 45 otherwise frequently escape punish- La. Ann. 1445; 14 South. 250; Mo- ment, by the sickness or unavoidable Ardle vs. McDaniel, 75 Ga. 270. absence of a material witness, while Contra — Sproat vs. Common- the grand jury was sitting, and by wealth, 4 Ky. L. Eep. 629. various other accidental causes." • 378 Boswell vs. Colquitt, 73 Ga See also State vs. Kyle, 99 Ala. 63 ; Kellogg vs. State, 43 Miss. 57. 438 THE LAW OF SURETYSHIP. arrest and commitment, and for that purpose, command the as- sistance of the sheriff and his officers. ^^° It is held that the arrest of the accused at the request of the sureties is of itself equivalent to a surrender and the release of the bond from all further liability.^*" But a mere request by a suriety to a sheriff to take the accused into custody, if not com- plied with, will not exonerate the surety, notwithstanding it was the duty of the officer to make the arrest.^*^ If after the principal has been surrendered by the bail, either voluntarily or in pursuance of an order of the court, he is again released and escapes, no liability attaches upon the bond.'*" Where the principal, after the bailment, is again taken into custody, such re-arrest is constructively a surrender of the ac- cused and exonerates the sureties.^*^ But it is held that the mere fact that the principal is taken into custody upon another charge and upon a warrant issuing out of the same court will not release the bail.^'* The death of the principal releases the sureties from the obli- S7» state vs. Cunningham, 10 La. needed. It is likened to the re-ar- Ann. 393; State vs. Lingerfelt, 109 rest by the sheriff of an escaping N. C, 775; 14 S. E. 75. prisoner." Taylor vs. Taintor, 16 Wall. 371. sso Sternberg vs. State, 42 Ark. " When bail is given, the principal 127. is regarded as delivered to the cus- But see Eamey vs. Comm., 83 Ky. tody of his sureties. Their domin- 534. ion is a continuance of the original s si People vs. Robb, 98 Mich. 397; imprisonment. Whenever they 57 N. W. 257. choose to do so, they may seize him 382 People vs. McReynolds, 102 and deliver him up in their dis- Cal. 308; 36 Pae. 590. charge; and if that cannot be done asa Smith vs. Kitchens, 51 Ga. at once, they may imprison him un- 158; State vs. Orslcr, 48 Iowa 343; til it can be done. They may exer- Medlin vs. Comm., 74 Ky. 605 ; Rob- cise their rights in person or by erts vs. State, 22 Tex. App. 64 ; 2 S. agent. They may pursue him into W. 622. another State; may arrest him on ss^McGuire vs. Comm., 7 Ky. L the Sabbath ; and, if necessary, may Eep. 287 ; Hartley vs. Colquitt, 72 break and enter his house for that Ga. 351. purpose. The seizure is not made But see Smith vs. State, 12 Neb by virtue of new process. None is .'?09; 11 N, W. 317. JUDICIAL BONDS. 43il gation of the bail bond/"^ even though death dccurs after for- feiture.^^" The arrest of the principal while out on bail and his cor- finement in the penitentiary of another State will not exonerate his sureties.''*' Where the accused is delivered over to the authorities of an- other Stat© by the governor honoring a requisition from such State, it is considered that the sureties are exonerated since the failure to appear is by act of tbe law of tbe State where the obli- gation was assumed.^*' It was also held that the arrest of the principal by the Federal authorities upon the same charge and. his subsequent imprisonment in another State released the sure- sssPynes vs. State, 45 Ala. 52; People vs. Meyer, 29 N. Y. Supp. 1148; Conner vs. State, 30 Tex. 94. 386 State vs. McNeal, 18 N. J. L. 333; State vs. Cone, 32 Ga. 663; Mather vs. People, 12 111. 9; Wool- folk vs. State, 10 Ind. 532. 387 Taylor vs. Taintor, 16 Wall. 366. The principal was admitted to bail in Connecticut and went into the State of New York where he was arrested and taken hy requisition proceedings to the State of Maine and there sentenced to a long term in the penitentiary. In an action on the bond it was held — Swayne, J.: " It is the settled law of this class of eases that the bail will be ex- onerated where the performance of the condition is rendered impossible by the act of God, the act of the obligee, or the act of the law. Where the principal dies before the day of performance, the case is within the first category. Where the court be- , fore which the principal is bound to appear is abolished without qualifi- cation, the case is within the second. If the principal is arrested in the State where the obligation is given and sent out of the State by the governor, upon the requisition of the governor of another State, it is within the third It is equal- ly well settled that if the impossi- bility be created by the obligor or a, stranger, the rights of the obligee will be in nowise affected The law which renders the perform- ance impossible, and therefore ex- cuses failure, must be a law opera- tive in the State where the obliga- tion was assumed, and obligatory in its effect upon her authorities. If, after the instrument is executed, the principal is imprisoned in an- other State for the violation of a criminal law of that State, it will not avail to protect him or hi> sureties. Such is now the settled rule." See also Ingram vs. State, 27 Ala. 17; Cain vs. State, 55 Ala. 170; State vs. Horn, 70 Mo. 466; Yar- brough vs. Comm., 89 Ky. 151; 12 S. W. 153; King vs. State, 18 Neb. 375; 25 N. W. 519. 388 People vs. Moore, 4 N. Y. Cr. Rep. 205; State vs. Allen, 21 Tenn. 258. 440 THE LAW OP SUEETYSHIP. ties/'" The sureties will be exonerated by the fact that the , principal has been adjudged a lunatic and confined in an asy- lum.''° Where the accused voluntarily places himself under military jurisdiction by enlisting in the army and thereby is placed be- yond the reach of the process of the civil authorities, the sureties upon his bond will nevertheless be liable for his non-appear- ance/" The condition of the bail " to appear and abide by order of . the court " is not satisfied by the fact that the defendant ap- pears at the trial and defends against the charge, if after convic- tion he escapes, the bond will be forfeited/"^ 380 Comra. vs. Overby, 80 Ky. 208. Gingrich vs. People, 34 111. 448; •300 Comm. vs. Flemming, 15 Ky. Huggins vs. People, 39 111. 241. li. E:p. 491; Fuller vs. Davis, 1 Contra — Comm. vs. Terry, 63 Ky. Gray 612; Wood vs. Comm., 33 S. 383. W. (Ky.) 729. aazNeininger vs. State, 50 0. S. Conira — Adler vs. State, 35 Ark. 394; 34 N. E. 633; Glasgow vs. 517. State, 41 Kan. 333; 21 Pae. 253. 391 State vs. Scott, 20 Iowa 63; But see State vs. Murmann, 124 Mo. 502; 28 S. W. 2. CHAPTER IX. Sec. 250. See. 251. Sec. 252. See. 253. See. 254. See. 255. Sec. 256. CORPORATE SURETYSHIP. Surety Companies — Compensated Suretyship. Private and Corporate Suretyship Compared. Corporate Suretyship and Insurance Compared. Corporate Suretyship as Affected by the Premium or Compen- sation Paid. Corporate Compensated Suretyship is within the Statutes of Frauds. Construction of Corporate Suretyship Contracts. Surety Company Bonds as Affected by the Special Stipulations Inserted for their Protection in the Contract. Sec. 257. Same Subject — Stipulation that the Obligee shall notify the Surety of any Act of the Principal that " May " Involve Loss upon the Bond. Sec. 258. Stipulations Discharging Surety if Claim is not made within a Designated Time. Sec. 259. Stipulation that the Amount paid by Surety upon the Bond shall be Conclusive against the Principal in an Action by the Surety against the Principal for Indemnity. Sec. 260. Contract of the Compensated Surety Valid only as a Collateral Undertaking. §250. Surety companies — Compensated suretyship. Corporate Suretyship as a business enterprise has been de- veloped within very recent times. The earlier ventures in so called fidelity insurance were unsuited to the needs of the busi- ness of the country, and the advantage to be derived from the ap- plication of business methods in the making of a class of surety- ship contracts that were hitherto loosely and hastily dravsm has only recently become appreciated. The principles of law defining the rights of the parties to a suretyship contract must of necessity be the same, whether the surety is a private person or an incorporated company, except so far as the liabilities of the latter are controlled and limited by the doctrine of ultra vires. 441 442 THE LAW OF SUEETTSHIP. It would seem also to be a self-evident proposition that the contractual relation is the same whether the surety receives com- pensation for his undertaking, or enters into the contract for the accommodation of the principal. The courts in some jurisdictions have met the question grow- ing out of this class of business engagements as if Corporate Suretyship involved new and novel questions of law, to be treated experimentally like an invention in science or a discovery of a hitherto unknown force in nature, and the judgment of some of the courts appears to have been suspended until it could be more fully determined what effect this business innovation was to have upon the affairs of the people. The delusion that Corporate Suretyship is different in its nature from private or accommodation suretyship has been fos- tered by the similarity in business methods between insurance companies and surety companies, and the judgment was at once pronounced, by some, that Corporate Suretyship as a business is insurance, and that its contracts should be construed according to the law of insurance, and that the rules and equities of private suretyship will not apply. The hypothesis that the contract of the surety company is like an insurance contract is certainly well taken. Each offers indemnity against a specified peril ; one against loss by the oper- ation of the forces of nature, and the other against loss resulting from negligence, bad faith, or breach of contract; and ihe fur- ther assumption that Corporate Suretyship is insurance is not erroneous, but is undoubtedly misleading, and in its application results in a confusion of ideas. Corporate Suretyship is not a new kind of promise to pay the debt of another. It differs from private suretyship only in the fact that it rests upon somewhat better business methods and that the rights involved are more clearly and exactly defined by the parties themselves, leaving a more limited field in which to apply the equities and presumptions of the established law of suretyship. It cannot be doubted that if precisely the same contract is signed in one case by a private surety without compensation, and COEPOBATE SUKBTYSHIP. 443 in the other case by a corporate surety for compensation, that the contractual relations and equities of each surety with the other parties to the contract are exactly alike.^ tract, but is based upon the similar- ity in the methods of doing business between insurance and Corporate Suretyship, and the fact that there is the same need of public inspection and control in order to protect the individuals who do business with the corporation. So also in Wisconsin the question arose as to whether the insurance regulations would apply to Corpo- rate Suretyship, which provided that a, solicitor of an insurance company should be considered the agent of the company, whose representations would be binding upon the company notwithstanding the application or policy stated to the contrary, and it was considered that the method of doing business was such as to bring the surety company within the gen- eral insurance provision in this re- spect. Shakman vs. Credit System Co., 92 Wis. 366. In this case the Court said : " We regard the contract be- fore us as unquestionably a contract of insurance. An insurance contract is a contract whereby one party agrees to wholly or partially in- demnify another for loss or damage which he may suffer from a specified peril. The peril of loss by the in solvency of customers is just as definite and real a, peril to a mer- chant or manufacturer as the peril of loss by accident, fire, lightning or tornado, and is, in fact, much more frequent. No reason is perceived why a contract of indemnification against this ever-present peril is not just as legitimately a, contract of insurance as a contract which in- demnifies against the more familiar. 1 The business of insurance has long been under legislative control. Corporate suretyship was not, how- ever, anticipated, and so not pro- vided for in terms in the legislative acts regulating insurance. The simi- larity in the methods of doing busi- ness, especially the fact, that, like insurance, the business is directed from a central or " home office " and distributed through the country by branch ofiices or agencies, and that its business is secured by solicitors and executed by a form of under- writing similar to insurance, gave rise to the same apparent necessity for legislative regulation which ex- ists in the case of insurance, or in the case of any other financial insti- tution such as a bank or building association, which deals with the public in a way to warrant some regulation in the interests of the people. In some instances the courts have held that the existing insur- ance regulations, without any spe- cial reference to surety companies being made in the Statute, were broad enough to cover the foreign corporation seeking to do a surety- ship business within the State. Such was the holding in Illinois where it was held that a surety company could not be incorporated under a general act in which " insur- ance" companies were specially ex- cluded. People vs. Rose, 174 111. 310; 51 N. E. 246. The necessity however for regula- tion, and the authority to impose the regulation under the insurance law, has nothing to do with the con- tractual relations between the sure- ty and the other parties to the con- 444 THE LAW OF SURETYSHIP. §251. Private and corporate suretyship compared. Private suretyship is generally for mere accommodation. Cor- porate Suretyship is a business transaction for profit. Many instances are likely to arise, however, where private persons engage in suretyship for compensation. The private professional surety who takes up the business for profit was the forerunner of the surety company, and many are still thus en- gaged. It is also quite possible for a Corporate Surety to furnish a bond gratuitously, and it is often done. The comparison in these respects therefor, of itself, involves no necessary difference in the legal attitude of the private and corporate Surety. The important practical contrast between these forms of sure- tyship is in the language of the contract and the methods of arriving at a mutual understanding. The private surety who engages in a fidelity bond, or who executes a letter of credit, or a guaranty against a failure of title, or obligates himself upon a judicial or official bond, usually has nothing to do with the making of the contract. He takes little if any thought of the possibility of loss, frequently signing with- out reading, and generally having only a vague understanding of the scope of the engagement, beyond the fact that it is a bond of some sort. The law, by its carefully considered precedents, has developed the rules for the determination of the respective rights and lia- bilities of the parties who contract in this way, making provision but less frequent, peril by fire." The Similar comments might properly sole question which gave rise to this be made as to a large number of opinion was whether the corporative others cases which purport to con- surety was bound by the representa- strue insurance Statutes and apply tions of the solicitor in accordance their restrictions and regulations to with the insurance Statute, and the surety companies. They do not de- point decided was that the lusiness cide the suretyship questions in- Tvas insurance, and came within the volved as to the nature of the con- Statute, but whether the contract tract relation. was suretyship and controlled by See also People vs. Fidelity & the rules of suretyship had nothing Casualty Co., 153 111. 25; 38 N. B: to do with this case and was not 752. there decided. COEPOKATE SUEETTSHIP. 445 for certain defenses in suretyship, such as liose resulting from fraudulent concealment, material alteration of the contract, ex- tension of time to the principal and other equitable defenses im- pressed upon the contract, without any specific refereoice in the contract to such possible defenses. The law also provides for the remedy of contribution between sureties and the rights of indemnity and subrogation. On the other hand the Corporate Surety, except where the form of the contract is prescribed by law, such as some kinds of judicial and ofiicial bonds, usually prepares its own contracts, carefully and distinctly defining its rights and liabilities, and in many instances requiring applications to be signed as a prelim- inary to the bond, wherein the principal and obligee unite in written representations, which become conditions upon the lia- bility recited in the bond, and also setting out in the bond itself the rights and privileges which the law affords to private sure- ties, such as the privilege of subrogation, and stipulations against fraudulent concealment of facts by the obligee which materially affect the risk, which rights and equities could also be claimed by the Corporate Surety even though not set out in the contract. The relative legal position of the private and corporate surety is not therefore changed by the fact that the one sets out in its contract the same legal rights which the law imports, even if, as in the case of an accommodation indorser, the contract is evi- dence only by a signature in blank. If the private' and Corporate Surety each set out the same conditions in their contract, and each fortify themselves by the same preliminary conditions by a written application for the bond, it is clear that the resulting liability is identical in all re- spects, without regard to the fact that one is corporate and the other not, or that one is compensated and the other gratuitous. The advantage to all parties and to the courts where the rights of the contracting parties are fully and accurately set dowa in writing, is manifest, but the legal position of the parties is not thereby changed. 446 THE LAW OF SURETYSHIP. §252. Corporate suretyship and insurance compared. Insurance lacks the essential element wbich distinguishes sure- tyship from a simple contract. There are three parties to a suretyship contract, and only two in an insurance contract. The promise by one party to answer for the default in the per- formance of a subsisting contract of another person is the par- ticular feature which gives rise tO' all the learning in the field of suretyship law. Insurance is a simple contract of indemnity between two per- sons, wherein one agrees to compensate the other against loss which results, not because of the breach of the contract of an- other person, but which arises from an involuntary impersonal cause, such as accident, fire or death. There is not even a fair analogy to be dravm between the two kinds of contract. The comparison between a suretyship con- tract and an insurance contract is precisely the same as that which exists between a suretyship contract and any other form of simple contract. The subject of suretyship, arises altogether out of the rela- tion of the promisor, principal and creditor, brought together in one contract, and where this relation exists the rules and equities of suretyship cannot be excluded. Insurance corporations have found it necessary and profitable to make their contracts accurate and systematic, covering with special care and detail the many contingencies incident to ex- tensive dealings with persons of varying temperament and character and contracting capacity, and the adoption by surety corporations of these same business methods, and the applica- tion of them to strictly suretyship contracts has neither added nor taken away a single principle of the law of suretyship. §253. Corporate suretyship as affected by the premium or com- pensation paid. It has sometimes been assumed that the payment of a prem- ium to a Surety Company in some way deprives the Surety COEPOEATE SUEETYSHIP. 447 of rights and privileges which are enjoyed by a private Surety acting wholly for accommodation.^ The payment of a premium will not of course deprive the surety of any of the provisions expressly contained in the con- tract, and it has never been urged that because of the receipt of the premium the surety was thereby deprived of his right of indemnity contribution or subrogation, or any of the usual de^ fenses of suretyship such as alteration of the contract, extension of time, or fraudulent concealment of facts material for the surety to know in estimating the risk. The eases which maintain the view that Corporate Surety- ship is insurance because of the fact that a premium is paid, make no logical connection between that fact and the judgment rendered. The premium is less a consideration of Corporate Surety- ship contracts than of Insurance contracts. In the latter case it is the sole consideration. It is doubtful whether it is proper to denominate the prem- ium as a consideration at all in a suretyship contract. It cer- tainly is not the sole consideration. In a great majority of the contracts written by Surety Companies, the premium is paid and contracted for by the principal, while the bond or obliga- tion runs to the creditor. The surety cannot evade the liability to the creditor because the principal fails to pay the premium, neither can the contract be revoked on that account." 2 Walker vs. Holtzelaw, 57 S. C. shown, and it is held that the fall- 459 ; 35 S. E. 754. " Upon the hear- ure to pay the premium is a good ing of the case it was argued that a ground for extending the relief af- surety is a favorite of the law, and forded by the Statute, but such it (the policy) should be strictly remedy is not based upon a failure construed in his favor. While this of the consideration, but rests in the is true as a general rule, it has no discretion of the court and will be application to a case like this, where applied as a protective measure in the surety receives compensation favor of a corporate surety. and the suretyship is in the line of Amer. Surety Co. vs. Thurber, 162 its regular business." N. Y. 244; 56 N. E. 631. "Surety 3 A surety company can avail it- companies are a convenience to the self of the provisions of Statute, and community, and it is important that withdraw from judicial and official they should continue sound and able bonds in cases where good cause is to respond to their obligations. The 448 THE LAW OF SUKETYSHIP. The consideration in all suretyship contracts, whether com- pensated or not, springs from, the contract between the principal and creditor. If employment is offered upon the condition that the employee shall furnish a bond to cover the faithful perform- ance of his duties, the • consideration of the employment con- tract is the consideration of the bond, and as to the question of consideration it is of no importance whether the surety is com- pensated or not. A premium paid is the bonus or inducement to th© Surety Company, but is not the essential consideration out of which the contract grows. §254. Corporate compensated suretyship is within the statutes of frauds. The contract of the surety corporation although compensated is within the very letter of the Statute of Frauds. It is a col- lateral promise to pay the debt or answer for the default of another, and will not be binding unless in writing. Where the surety is beneficially interested in the carrying out of the main contract, as where the performance of the main contract subserves a pecuniary purpose of his own, his collateral engagement to answer for the due performance of the principal contract is considered outside the provisions of the Statute of frauds and constitutes him an original promisor.* legislature doubtless intended to its officeis it may inform those in- promote their stability by extend- terested, and request action on their ing the same protection to them that part; but if they reply, 'You are it extends to other sureties. The good and we are safe,' what relief is contracts of such companies are there unless it is under this section? usually based upon an annual prem- If it cannot induce those ultimately ium for a continuing bond. If the entitled to the money or property to premium were not paid after the act, its condition is hopeless and first year and the company could bankruptcy may be the result." not avail itself of the privilege of See also Amer. Surety Co. vs. Nel- the statute, its responsibility would son, 77 Minn. 402; 80 N. W. 300. continue with no compensation, as Where it was held that a failure l),v the bond would still be in force. No an assignee to pay the stipulated company can do business on such premium to the surety company exe- a basis. Moreover, if the annual cuting his bond was ground for his premiums are paid, but the principal removal, is squandering the estate, how can *Ante Sec. 39. the surety protect itself? Through COEPORATE SDEETTSHIP. 449 But the payment of a premium as an inducement to enter into a suretyship contract does not constitute a novation, as the surety on this account derives no interest in the outcome of the main contract vfhieh he secures. §255. Construction of corporate suretyship contracts. The doctrine that a surety is a favorite of the law largely disappears in the construction of corporate suretyship con- tracts. This results not from the fact that the surety is a cor- poration and compensated, but because of the form of the con- tract and the manner of its execution. The same rules of construction must also apply to private accommodation suretyship contracts if made in the same way. The importance of the so-called doctrine of " favoritism " as applied to promises in suretyship is apt to be considerably over-estimated, and has been talked about in many cases where the question is not at all involved. The rule that the surety's liability will not be extended by verbal conditions, or that the term of his contract cannot be changed without his consent, or that one party to the contract cannot he released without releasing the other, applies also to any written instrument. The common expression in construction of ordinary surety- ship that " A surety cannot be bound beyond the clear and un- equivocal terms of his obligation " is certainly true of a party to any contract in writing. There is after all but a very limited field for the application of the doctrine that the surety is a favorite in the law. He clearly is not a favorite, even though so called, where he is merely given the benefit of rules of construction common to all written con- tracts." 5 Ulster Co. Savings Inst. vs. terpreted by the same rules which Young, 161 N. Y. 23; 55 N. E. 483. are applicable to the construction of " The liability of a surety is other contracts. The extent of his measured by his agreement, and is obligation must be determined from not to be extended by construction. the language employed when read His contract, however, is to be in- in the light of the circumstances 450 THE LAW OF SUEETYSHir. While these rules of construction are a part of the general law of suretyship they do not constitute its distinguishing features. The great field of special construction in favor of the surety arises from the fact that he is an accommodation party and generally takes no part in the writing of the contract, and the matter being wholly separate and distinct from bis own affairs, he gives the business no attention and relies for his pro- tection on the rules of strict construction being applied in his favor, if any doubt arises as. to the meaning of his contract And where the language employed is hastily and loosely written, and the contract prepared for the surety is so constructed that different interpretations may reasonably be given to it, the one imposing a limited liability and the other a more extended or continuing liability, the rules of suretyship will generally im- pose the more limited construction. But any contracting party, whether a private or corporate surety acting with or without compensation, whether a .party to an insurance contract or a simple written contract of any sort, is estopped from claiming any special construction of am- biguous words which he himself has written, as against any reasonable construction acted upon by the other parties to the contract, and the application of this very self-evident propo- sition to the business of corporate suretyship, where the con- tract is drawn by the officers and agents of the surety, and hedged about by the conditions and requirements of the applica- tion for the bond, has changed the attitude of the surety to the contract, and made unnecessary and improper any rule of strict construction in favor of the surety. It is upon this point that the cases turn which are said to support the view that the compensated corporate surety is not a " favorite " in the law, and that the business on this account is like insurance, and that the rules of private suretyship do not apply. And so in an action upon a fidelity bond executed to a bank surrounding the transaction. Henee, no difference between the contract where the question is as to the of a surety and that of a principal meaning of the language by which or other party sustaining a, differ- the party has bound itself, there is ent relation." COKPOEATE SUEETYSHIP. 461 it was held " if, looking at all its provisions, the bond is fairly and reasonably susceptible of twO' constructionSj ens' favorable to the bank and the other favorable to the Surety Company, the former, if consistent with the objects for which the bond was given, must be adopted, and this for the reason that the instru- ment which the court is invited to interpret was drawn by the attorneys, officers or agents of the Surety Company v^s said by Lord St. Leonards, "It (a life policy) is of course prepared by the company and if tiherefore there should be any ambiguity in it, it must be taken, according to the law, most strongly against the person who prepared it." ® 6 American Surety Co. vs. Pauly, 170 U. S. 133; 18 S. Ct. 552. See also Supreme Council vs. Fi- delity & Casualty Co., 63 Fed. Rep. 48. " The bond is in the terms pre- scribed by the surety, and any doubtful language should be con- strued most strongly against the surety, and in favor of the indem- nity which the assured had reason- able grounds to expect." To the same effect see Bank of Tarboro vs. Fidelity & Deposit Co., 128 N. C. 366; 38 S. E. 908. " The defendant again insists that it should have the same right to limit its liability as is possessed by an individual. That may be; but no member of this Court has ever seen or heard of a bond in such a form being tendered by a private surety. In its very form and es- sence, the bond before us resembles an insurance contract, and differs materially from the ordinary forms coming down to us by immemorial usage. Therefore, we must place such bonds in the general class of insurance policies, and construe them upon the same general princi- ples; that is, most strongly against the company and most favorably to their general intent and general purpose." The foregoing view that the con- tract of the surety company is to be construed like an insurance con- tract most strongly against the insurer, results in this case wholly from the form of the contract wherein the details of every right of the surety are fully set out in the writing, and is in no respect a de- duction from the fact that the sure- ty is corporate and compensated. A private surety making the same contract would be subject to the same ruling. Wallace vs. Insurance Co., 41 Fed. Rep. 742, states the same rule as applied to strictly insurance eon- tracts. " A contract drawn by one party, who makes his own terms and im- poses his own conditions, will not be tolerated as a snare to the un- wary; and if the words employed, of themselves, or in connection with other language used in the instru- ment, or in reference to the subject matter to which they relate, are susceptible of the interpretation giv- en them by the assured, although in fact intended otherwise by the in- surer, the policy will be construed in favor of the assured." 452 THE LAW OF SUBETYSHIP. The doctrine thus stated would apply -with equal force if the bond had been prepared and executed in the same way by a private surety acting without compensation. From whatever point of view the question is considered there does not appear to be any good reason for holding that the fact of the surety being corporate and compensated has any bearing upon the contractual relations of the parties. Where the instrument is not drawn by the surety but is pre- scribed by the law, such as bonds of public officers or judicial bonds, no distinction in principle exists between private and corporate suretyship, and no distinction haS' been made by the courts in construing the respective contracts, and the only dis- tinction heretofore made by the courts between corporate and private suretyship contracts, apparently has been limited to the fact, that in the one case the contract is prepared by the surety, and in the other not. §256. Surety company bonds as affected by the special stipuk' tions inserted for their protection in the contract. Many of the conditions and stipulations common to surety company bonds or policies impose limitations upon the liability of the surety which would not be implied by law, if such con- ditions were not written in the contract. Considerable dis- cussion has arisen as to whether these stipulations made by the surety company in their own interest can be applied so as to work a forfeiture of the bond, where the limitation in terms narrows the liability imposed by law in the case of an ordinary surety. The view which now prevails as announced by the courts in the later cases establishes the undoubted policy of applying such construction as will prevent a forfeiture of the bond, on ac- count of stipulations which are so worded as to render it nearly impossible to make a claim against the surety company, and at the same time comply with the conditions. Where the object to be attained in giving bond has been carried out, it is deemed against public policy to so construe a COBPOKATE STJEETTSHIP. 453 oondition in th« bond as to give the surety, and thfi principal whose contract he secures, all the benefits of the arrangement without imposing the burdens. While it is true that where the parties to an agreement have the proper contractual capacity, they will in the absence of fraud or mistake be bound by all the terms of their agreement notwithstanding these terms are much more favorable to one party than the other, yet the law will not sanction a design on the part of one party to so frame his agreement that by its own terms it furnishes an opening for a complete evasion of liability. The general purpose of suretyship being expressed in the bond, the common law liability of a surety will be enforced, and no mere technical evasion or forfeiture will be tolerated upon the theory that the beneficiary of the bond bas specifically contracted for a forfeiture. §257. Same subject — Stipulation that the obligee shall notify the surety of any act of the principal that " may " in- volve loss upon the bond. The law of suretyship gives to the promisor a right of notice of default even though not made a stipulation in his contract, whenever such notice is necessary for his protection, as in the case of a commercial guaranty where the facts upon which his liability rests are not within his knowledge, or depend upon the creditor's option.' So too a stipulation for notice of default under any circum- stances will be binding upon the creditor as it is a condition of liability which may always be imposed. But the stipulation common to corporate surety contracts for notice of any act of the principal or any facts within the knowledge of the obligee which " may " lead to default and loss to the surety, if not in every case an impossible condition, is in all cases an evasive one and will not be enforced. It puts upon the obligee not merely the duties of observing closely the con- duct of the principal, but in addition thereto, charges him with TAvte Sec. 68. 454 TflE LAW OF SUEETYSIIIP. the duty of determining the character of the acts of the princi- pal, and the probability that a line of conduct apparently inno- cent may be fraudulent. Suoh facts although giving rise to sus- picion need not be communicated.^ Where an agent of an insurance company was required by his contract to remit payments of money collected within a certain time after the close of each month, it was held that while his failure to do so might be reasonable ground for a suspicion that he was in default, yet the insurance company was not bound to put such construction upon the act, and a failure to report this fact to the surety company was not a violation of the stipu- lation in the bond requiring notice of all acts of the principal which may involve loss on the bond.^ The rule relieves the obligee from the responsibility of bad judgment in estimating the effect of the act which finally leads to the loss charged against the bond. It cannot, however, be extended so as to relieve the obligee from the duty of giving iQotice of specific acts stipulated in the bond, although the 8 American Surety Co. vs. Pauly, words ' which may involve loss ' in 170 U. S. 133; 18 S. Ct. 552. the above extract from the bond. In the lower court the jury was But when those words are taken charged, " You are to inquire first, with the words in the same sentence when it was that the plaintiff be- ' as soon as practicable after such came satisfied that the cashier had act shall have come to the knowledge' committed dishonest or fraudulent of the employer,' it may well be acts which might render the de- held the Surety Company did not fendant liable under this policy. He intend to require written notice of may have had suspicions of irregu- any act upon the part of the cashier larities; he may have had suspi- that might involve loss, unless the cions of frauds but he was not bank had knowledge, not simply sus- bound to act until he had acquired picion, of the existence of such facts knowledge of some specific fraudu- as would justify a careful and pru- lent or dishonest act which might dent man in charging another with involve the defendant in liability fraud and dishonesty." for the misconduct." See also Bank of Tarboro vs. Fi- The Supreme Court in approving delity & Deposit Co., 128 N. C. 366; this charge said: " We perceive no 38 S. E. 908; iEtna Life Ins. Co. vs. error in these instructions. They Amer. Surety Co., 34 Fed. Rep. 291. are entirely consistent with the » Pacific Fire Ins. Co. vs. Pacific terms of the contract. Much stress Surety Co., 93 Cal. 7; 28 Pac. 842, was laid, in argument, upon the CORPOEATE SURETYSHIP. 455 obligee in good faith considered such acts of no importance and as involving no risk. The federal supreme court in construing a bond containing the condition " the employer shall at once notify the company, on his becoming aware of the said em- ployee being engaged in speculation or gambling," held that the failure of the employer to notify the surety company that he had received such information was a breach of the bond, al- though the employer believed that the principal had ceased to gamble, and that notice to the surety would be of no impor- tance." The condition usually recited in surety company bonds re- quiring the obligee to notify the surety promptly of any act of fraud or dishonesty on the part of the principal is intended to extend the common law obligation resting upon the beneficiary of a bond. The private surety whose contract contains no stip- ulation requiring him to report to the surety as to the conduct of the principal, is deemed guilty of bad faith towards the surety if he continues the principal in his employ, vnthout notice to the surety, after he has knowledge of acts of fraud and dishonesty which increase the peril on the bond, but he does not by implication assume any responsibility of watching the principal in the interest of the surety.^^ If Guarantee Co. of N. A. vs. The had admonished it of tlie probability Mechanics Savings Bank & Trust that speculation or gambling would Co., 183 U. S. 402. lead to acts involving loss for "vvhieh Reversing The U. S. Circuit Court it would be responsible. . . The of Appeals, 80 Fed. Rep. 766. provisions intended to protect the Puller, C. J.: "The company's company in this case were not in defense did not rest upon the duty of themselves unreasonable and so far diligence growing out of the rela- as they operated to compel the bank tion of the parties, but on the breach to exercise due supervision and ex- of one of the stipulations entered amination, and due vigilance, were into by them. The question was not consistent with sound public policy, merely whether the conduct of the We think it was the duty of this bank was contrary to the nature bank to have made prompt investiga- of the contract, but whether it was tion, or at all events to have notiiied not contrary to its terms. Engage- the company at once of the informa- ment in speculation or gambling tion that it had." was what the company sought to n Ante Sec. 107. guard against because experience 456 THE LAW OF SUEETTSHIP. It is held that these provisions do not enlarge the duty of the obligee where no special stipulation is made for the exercise of diligence in supervising the conduct of the principal, and that the covenant that the obligee shall at once notify the surety of any act of fraud or dishonesty on the part of the principal, only covers such acts as are actually known to the employer, and not those who might have known by the exercise of diligenee.^^ §258. Stipulations discharging surety if claim is not made within a designated time. In ordinary suretyship the creditor is entitled to assert his claim at any time within the Statute of Limitations. The business of compensated suretyship cannot, however, be successfully conducted without a more definite and timely de- mand being made, to enable the corporation to properly adjust its affairs, by anticipating the claims that are to be made upon its resources. The limitation in the contract requiring proof of loss to be filed within a designated period, and an action to be brought within a definite time, is a valid condition, and a failure to coin- ply with this requirfement is a waiver of all right under the bond, and will prevent a recovery.^' 12 Fidelity & Casualty Co. vs. Gate honest and faithful. , Only after City Nat. Bank, 97 Ga. 634; 25 S. B. knowledge had actually come to the 392, Lumpkin, J. : " There is not a bank that he was or had become syllable in the contract, however, otherwise was it under any duty to bearing the construction that the the company j and then it was only bank should exercise any degree of required to notify the company of diligence in enquiring into or super- what it had ascertained." vising the conduct of Eedwine in or- is California Savings Bank vs. der that the company might be saved Amer. Surety Co., 87 Fed. Rep. 118. from loss through his misconduct. The numerous authorities validat- The bank did not undertake to ex- ing similar provisions in insurance ercise reasonable care and diligence contracts support the rule in princi- to find out if Eedwine had become pie as applied to corporate sureties, untrustworthy, but as to this matter Insurance Co. vs. McGookey, 33 0. S. the company, in effect, invited the 555; Quinlan vs. Insurance Co., 133 bank to repose in peace, for it guar- N. Y. 356; 31 N. E. 31; Riddlesbar- anteed that Eedwine would remain ger vs. Insurance Co., 7 Wall. 386. COEPOEATE SUEETYSHIP. 457 But such condition will not be enforced wkere the delay is unavoidable. Thus in a case where a bond was given to a Bank insuring the Bank against loss from the dishonesty of its offi- cers, and the Bank examiner took possession of all the books and assets of the Bank, so that although ihe Eeceiver gave imme- diate notice to the surety company of the default of the princi- pal, yet he was prevented from making proof of loss within the limited period by reason of not being able to get access to the books of the Bank. It was held that limitations in this form of contracts would not be applied with the same strictness as Statutes of Limitation, and that where the performance is ren- dered impossible by the act of the government or the courts, that the right to file the proofs, and bring the action will be ex- tended.'* §259. Stipulation that the amount paid by surety upon the bond shall be conclusive against the principal in an action by the surety against the principal for indemnity. The surety cannot enlarge the common law right of indemnity by stipulations in the contract The principal owes to the surety the duty of full protection, and' whether the suretyship is gratuitous or compensated, the principal is bound to reim- burse the surety for all moneys paid by the surety upon the ob- ligation of the principal to which the suretyship is collateral. If the bond in terms stipulates for such indemnity, it adds nothing to the right which the surety enjoys without such cov- enant. Where it is stipulated that any voucher which may be execut- ed to the surety for money paid in settlement of claims made upon the bond, shall be conclusive of the amount due in an ac- tion for indemnity against the principal, the common law right of indemnity is thereby enlarged, as the amoimt recoverable is no longer the amount due as shall be ascertained by judicial determination, but such sum as the surety may pay to the cred- itor, whether more or less than the sum due. I* Jackson vs. Fidelity & Casualty Co., 75 Fed. Rep. 359. -158 THE LAW OF SURETYSHIP. Such provision in the contract is void on grounds of public policy. Upon this question it was held " The right of a party to waive the protection of the law is subject to the control of public policy, which cannot be set aside or contravened by any arrangement or agreement by the parties, however expressed. Thus an agreement to waive the defense of usury is void. So, also, according to the weight of authority, is an agreement, made at the time of contracting a d.ebt, to waive the prospective right of exemption. The agreement under consideration is more than a mere enlargement of contractual rights, or the es- tablishment of a rule of evidence. It provides that the plaintiff may by his own ex parte acts, conclusively establish and deter- mine the existence of his own cause of action. In short, he is made the Supreme Judge of his own case. The case is not at all analogous to the common provisions in building and con- struction contracts, by which the determination of some third person such as the architect or engineer, as to the amount and character of the work, is made conclusive between the parties, in the absence of fraud or mistake. If or is it at all analogous to a provision in an executory contract for the sale or manufac- ture of an article to the satisfaction of the buyer, where, if the article is declined, the parties are in contemplation of the law left in statu quo. In the present case the attempt is to pro- vide that, after the alleged cause of action has accrued, the plaintiff shall be the sole and exclusive judge of both its exist- ence and extent. Such an agreement" is clearly against public policy." '' §260. Contract of the compensated surety valid only as a col- lateral undertaking. The compensation received by the corporate surety as the inducement for its undertaking is not of itself sufficient to make the transaction a binding obligation in suretyship. There must be a valid subsisting principal obligation to which the surety's 15 Fidelity & Casualty Co. vs. 351; Fidelity & Casualty Co. vs. Eichhoff, 63 Minn. 170; 65 N. W. Crays, 7fi Jlinn. 450; 79 N. W. 531. COEPOEATE SUEETYSHIP. 459 contract is collateral, otherwise the undertaking that another •will perform an act which he has no obligation to perform, coupled with an agreement to pay a penalty if he fails to do the thing specified, is a mere wager. The corporate surety sustains the same attitude to this indis- pensable element of suretyship as in the case of the private surety. The surety is not concerned with the extent and value of the main contract, as to whether it is profitable or otherwise to the principal contractors, or whether it is a fair and equitable bar- gain, or whether the apparent obligee is the real party in in- terest. The important thing, and the only point necessary to be determined in fixing the liability of the surety, is whether it is a binding obligation, and if not, the surety will not be held to his engageiment even though he has been paid a premium. Some useless confusion of ideas arises in this connection be- cause of the persistency with which the contract of the corpor- ate surety is sometimes called " insurance," from which is de- duced the erroneous notion that the obligee in the bond must have an " insurable interest " in the transaction as a basis of recovery, and is limited in his recovery to the amount of such insurable interest. The insurable interest known to insurance has no necessary relation to contract rights. One may have such interest in property he does not ovm, but out of which he expects to derive some benefit, and the loss of which would cause him damage; or he may have an insurable interest in the life of another, even though such interest does not arise out of any contract. But a suretyship relation arises only out of a con- tract relation, and it depends upon the existence of a main con- tract to which the promise is collateral. The more accurate use of terms would seem to be that no recovery can be had against a corporate compensated surety, except where the cause of ac- tion exists against the principal also, and the amount of recov- ery is limited to the amount of the liability against the principal on the main contract, and the doctrine of " insurable interest " as defined in insurance law has nothing to do with the case. This familiar rule of private suretyship was applied to a con- 460 THE LAW OF SUEETTSHIP. tract of compensated surety, in. a ease where the bond was to secure the fidelity of an agent, who was employed by a foreign corporation to carry on its business under a contract that was void because of the failure of the corporation to comply with the laws of the state, and the main contract not being enforce- able, the surety company was also released.^* 18 McCanna & Fraser Co. vs. Citi- zens' Trust & Surety Co., 74 Fed. Kep. 597. See also Electric Appliance Co. vs. U. S. Fidelity & Guaranty Co., 110 Wis. 434; 85 N. W. 638; Amer. Surety Co. vs. United States, 127 Ala. 349 ; 28 South. 664. Fidelity & Deposit Co. vs. Singer, 50 Atl. Rep. 518. In this case the action was in replevin, and the bond was made to Singer in his individual capacity, whereas the title to the property was in him in a trust ca- pacity, and it was held that since there was no subsisting obligation running to him as an individual that the collateral undertaking of the surety must be discharged. The holding in this case is not affected by the fact that the surety was corporate and compensated, but the ruling applies to any surety. CHAPTER X. See. 261. Sec. 262. Sec. 263. Sec. 264. Sec. 265. Sec. 266. THE RIGHTS AND REMEDIES OF THE PROMISOR AFTER PAYMENT. Subrogation. Subrogation arises only when Claim is paid in full. Subrogation is a Mere Equity and will not be applied against the Legal rights of Others dealing with the Principal. The Promisor who pays is entitled to have the Securities held by the Creditor Assigned to him. Subrogation extends not only to Securities, but also to all Eem- edies of the Creditor. Surety Paying Judgment against the Principal will be Subro- gated to the Lien and Other Rights of the Creditor under the Judgment. Sec. 267. A Suretyship Promisor who Pays will be Subrogated to any Mortgage Security which the Creditor holds for the Debt. Sec. 268. Subrogation Applies to one in the Situation of a Surety. Sec. 269. Surety who Pays the Debt is Entitled to be Subrogated to n. Pro rata Share of any Dividend which is Derived from the As- sets of the Principal. See. 270. Subrogation among Co-sureties. Sec. 271. Subrogation between Successive Sureties. Sec. 272. Subrogation in Favor of the Creditor to Securities held by the Surety. Sec. 273. Same Subject — The View of the English Courts. Sec. 274. Remedies of the Surety in Cases where he is Deprived of Subro- gation by Act of the Creditor. See. 275. When Surety will be Subrogated to the Principals' Claims of Set-oflF against the Creditor. See. 276. Subrogation not Available to one who Pays the Debt of another as a mere Volunteer. Sec. 277. Conventional Subrogation. Sec. 278. Waiver of Subrogation. See. 279. Contribution between Co-sureties — General Principles. Sec. 280. Contribution between Sureties Bound by Different Instruments. Sec. 281. A Surety for a Surety not Liable in Contribution. See. 282. Contribution as Affected by Special Contract between Sureties. Sec. 283. Contribution between Persons in the Situation of a. Surety. Sec. 284. One who becomes Surety at the request of a Co-surety is Liable in Contribution to such Co-surety. 461 Sec. 285. Sec. 286. Sec. 287. Sec. 288. See. 289. Sec. 290. See. 291. See. 292. 462 THE LAW OF SURETYSHIP. One who aids in the Commission of the Default is Barred from the Right of Contribution. When Contribution may be Enforced. Equitable Contribution or the Right of a Surety to call upon his Go-surety for Exoneration before Payment. Amount Recoverable in Contribution. Contribution as Affected by the Insolvency of one or more Co-sureties. Contribution as Affected by Absence from the Jurisdiction or by the Death of a Co-surety. Surety Seeking Contribution must account to his Co-sureties for Indemnity Furnished him by the Principal. Surety may Enforce Contribution, even though Payment by him was without Compulsion. Sec. 293. Contribution as Affected by the release of one of several Co- sureties. Bankruptcy of a Surety — Effect on Co-surety's Right of Con- tribution. Contribution between Parties to Bills and Notes. The Right of Indemnity against the Principal. When Right of Indemnity Arises. Equitable Exoneration. Right of Indemnity Arises from Payment or Transactions Equiv- alent to Payment. Amount Recoverable by Indemnity Proceedings. Right of Indemnity as Affected by the Non-Liability of the Principal. Sec. 302. Right of Indemnity as Affected by the Non-Liability of the Surety or Guarantor. Sec. 303. When Judgment against the Surety of Guarantor is Conclusive as to the Right to Recover Indemnity. See. 304. Indemnity as Affected by the Bankruptcy of the Principal. §261. Subrogation. Subrogation in Suretyship is " a mode which equity adopts to compel the ultimate discharge of the debt by bim who in good conscience ought to pay it, and to relieve him whom none but the creditor could ask to pay." ^ The scope of the right of subrogation oonsists in the imme- diate transfer, by operation of law, to the promisor in surety- ship, of all the rights of the creditor against the principal when- ever the promisor pays the debt or satisfies the obligation. 1 McCormick vs. Irwin, 35 Pa. 117. See. 294. Sec. 295. Sec. 296. Sec. 297. Sec. 298. See. 299. Sec. 300. Sec. 301. EIGHTS AND EEMEDIES. 463 This right of subrogation is independent of any agreement and rests upon principles of natural justice and equity.^ It is the exercise of a power inherent in that branch of reme- dial justice which is administered by the Courts of Equity. Subrogation is not limited in its application to transactions in suretyship. Whenever one pays the debt of another, al- though under no obligation to do so, if the payment was neces- sary for the protection of his own interests, the equity of sub- rogation arises.^ Thus where a purchaser of land, which was warranted free 2 Hodgson vs. Shaw, 3 Myl. & K. 183, Lord Brougham : " The rule is undoubted, and it is founded upon the plainest principles of natural reason and justice, that the surety paying off a debt shall stand in the place of the creditor and have all the rights which he has, for the pur- pose of obtaining his reimbursement. It is hardly possible to put this right of substitution too high, and the right results more from equity than from contract or quasi con- tract; unless in so far as the known equity may be supposed to be im- ported into any transaction, and so to raise a contract by inlplication. . . . A surety will be entitled to every remedy which the creditor has against the principal debtor, to en- force every security and all means of payment; to stand in the place of the creditor, not only through the medium of contract, but even by means of securities entered into without the knowledge of the sure- ty; having a right to have those tecurities transferred to him, though there was no stipulation for that; and to avail himself of all those securities against the debtor." Hayes vs. Ward, 4 Johns. Ch. 130, Kent, C. : " This doctrine does not belong merely to the civil law sys- tem. It is equally a settled princi- ple in the English chancery, that a, surety will be entitled to every rem- edy which the creditor has against the principal debtor, to enforce every security, and to stand in the place of the creditor, and have his securi- ties transferred to him, and to avail himself of those securities against the debtor. This right of the surety stands not upon contract, but upon the same principle of natural justice upon which one surety is entitled to contribution from another." Mathews vs. Aikin, 1 N. Y. 595, Johnson, J. : " I agree fully with the learned judge who delivered the opinion of the Supreme Court, that the right of the surety to demand of the creditor whose debt he has paid, the securities he holds against the principal debtor and to stand in his shoes, does not depend at all up- on any request or contract on the part of a debtor with the surety, but grows rather out of the relations existing between the surety and the creditor, and is founded not upon any contract, express or implied, but springs from the most obvious prin- ciples of natural justice." sGaskill vs. Wales, 36 N. J. Eq. 527; Cockrum vs. West, 122 Ind. 372; 23 N. E. 140. 464 THE LAW OF SURETYSHIP. from incumbrance, finds it to be subject to a judgment lien, and to prevent a sale on execution, he pays the judgment, he is at once subrogated to the position of the creditor, and if the judgment was a lien upon other lands of his vendor, he may have execution on his own account.* The same rule applies where a junior mortgagee is compelled to pay a prior incum- brance to prevent foreclosure at a tinie or under circumstances that would defeat his claim.® The principles of subrogation as applied in transactions other than suretyship may be further illustrated in a case where a loan was made with the understanding that it was to be used in paying off all incumbrances upon certain land, and that a mortgage was to be executed as security which would thereby become a first lien. The mortgage when executed being defect- , ive and invalid, it was held that the one advancing the money ought to be subrogated to the rights of the prior incumbrancers whose claims had been paid off by him.* If the prior liens had been assigned to the one advpncing the consideration for their discharge, his rights to enforce them could not be questioned, and because of the manifest justice * Beall vs. Walker, 26 W. Va. 741. person making the payment as the See also Hancock vs. Fleming, 103 owner thereof for certain definite Ind. 533; 3 N. E. 254; Warren vs. purposes and keeps it alive and pre- Hayzlett, 45 Iowa 235. serves its lien for his benefit and se- Arjiold vs. Green, 116 N. Y. 566; curity. According to the well-es- 23 N. E. 1, Vann, J. : " This appeal tablished principles upon which the presents the single question whether, doctrine of equitable assignment by under all the circumstances of the subrogation rests, if the person pay- case, the defendant should have been ing stands in such a relation to the substituted in the place of Mr. Wads- premises that his interest, whether worth as the owner of the mortgage legal or equitable, cannot otherwise in question. Did he by the fact of be adequately protected, the trans- payment become the equitable as- action will be treated in equity as signee of the security and entitled an assignment." to enforce it for his own reimburse- 5 Porter vs. Vanderlin, 146 Pa. ment and the protection of his in- 138; 23 Atl. 350; Hull vs. Godfrey, terest in the land? Under some cir- 31 Neb. 204; 47 N. W. 850; Twomb- cumstances the payment of a mort- ly vs. Gassidy, 82 N. Y. 159. page does not satisfy it or destroy sAmick vs. Woodworth, 58 0. S, its lien, because equity regards the 86; 50 N. E. 437. EIGHTS AND EEMEDIES. 465 of the claim, equity dispenses with, the formality of the as- signment in cases where the necessity for protection arises. Subrogation in all its phases appeals to the conscience of the Court, and the Court is clothed with wide discretion in its appli- cation/ By statute, in England, whoever pays the debt of another as surety is entitled to have assigned to him all securities held by the creditor as well as any judgment which the creditor may have obtained against the principal.* The English statute is clothed in the language of the English common law and is everywhere the law.' ' Acer vs. Hotehkiss, 97 N. Y. 402, Finch, J. : " The doctrine of subro- gation is a device to promote justice. We shall never handle it unwisely if that purpose controls the effort, and the resultant equity is steadily kept in view." 8 Mercantile Law Amendment, Statute 19 & 20 Vic, e. 97, s. 5: "Every person who, being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him, or to a trustee for him, every judgment, specialty^ or other security which shall be held by the creditor in re- spect of such debt or duty, whether such' judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt, or performance of the duty, and such person shall be entitled to stand in the place of the creditor and to use all the rem- edies, and, if need be, and upon a proper indemnity, to use the name of the creditor, in any action, or other proceeding, at law or in equity, in order to obtain from Ihe principal debtor, or any co-surety, co-contract- or, or co-debtor, as the case may be. indemnification for the advances made and loss sustained by the per- son who shall have so paid such debt or performed such duty, and such payment or performance so made by such surety shall not be pleadable in bar of any such action or other proceeding by him: Pro- vided always, that no co-surety, co- contractor, or co-debtor shall be en- titled to recover from any other co- surety, co-contractor, or co-debtor, by the means aforesaid, more than the just proportion to which, as be- tween those parties themselves, such last-mentioned person shall be justly liable." 9 Lewis vs. Palmer, 28 N. Y. 271 ; State Bank vs. Smith, 155 N. Y. 185; 49 N. B. 680; Billings vs. Sprague, 49 111. 509; Beaver vs. Slanker, 94 111. 175; Young vs. Vough, 23 N. J. Eq. 325; Klopp vs. Lebanon Bank, 46 Pa. 88; Fawcetts vs. Kimmey, 33 Ala. 261; Torp vs. Gulseth, 37 Minn. 135; 33 N. W. 550; Allison vs. Sutherlin, 50 Mo. 274; Scribner vs. Adams, 73 Me. 541; Guthrie vs. Ray, 36 Neb. 612; 54 N. W. 971 ; ^Etna Co. vs. Thomp- son, 68 N. H. 20 ; 40 Atl. 396 ; Liles vs. Rogers, 113 N. C. 197; 18 S. E. 104 ; Nat. Bank vs. Gushing, 53 Vt. 466 THE LAW OF SUEETTSHIP. The promisor in suretyship may be subrogated to the securi- ties held by the creditor even though he made his contract with- out any knowledge that the creditor held such securities.^" The right also attaches whether the securities come into the posses- sion of the creditor before or after the execution of the surety- ship contract. ^^ §262. Subrogation arises only when claim is paid in full. The claim of the creditor must be fully satisfied before there can arise any equity of subrogation. The creditor's right to the possession of all the securities is superior to the equity of the surety or guarantor, and the cred- itor is not obliged to suffer the inconvenience or risk of parting with any of his resources until the debt is paid in fuU/^ imless the creditor consents.^' 321 ; James vs. Jacques, 26 Tex. 320; Eand vs. Barrett, 66 Iowa 731; 24 N. W. 530. Lidderdale vs. Robinson, 2 Brock. 159, Marshall, G. J. : " Where a per- son has paid money for which others were responsible, the equitable claim which such payment gives him on those who were so responsible, shall be clothed with the legal garb with which the contract he has discharged was invested, and he shall be substi- tuted, to every equitable extent and purpose, in the place of the creditor whose claim he has discharged." loDempsey vs. Bush, 18 0. S. 376; Hevenei vs. Berry, 17 W. Va. 474; Mayhew vs. Criekett, 2 Swanst. 185 ; Forbes vs. Jackson, 19 Ch. D. 615; Lake vs. Brutton, 8 De G. M. &, G. 440; Duncan vs. North & South Wales Bank, 6 Appeal Cases 1. "Havens vs. Willis, 100 N. Y. 482; 3 N. E. 313; Brandon vs. Bran- don; 3 De G. & J. 524. 12 Ames vs. Huse, 55 Mo. App. 422; Commonwealth vs. Ches. & Ohio Canal Co., 32 Md. 501; Brough's Estate, 71 Pa. 460. Musgrave vs. Dickson, 172 Pa. 629; 33 Atl. 705. "Subrogation rests upon purely equitable groimds, and it will not be enforced against superior equities. Unless the surety pays the debt in full he is not en- titled to subrogation, and until this is done the creditor will be left in full possession and control of the debt and the remedies for its en- forcement." Barton vs. Brent, 87 Va. 385; 13 S. E. 29; Covey vs. Neff, 63 Ind. 391; Vert vs. Voss, 74 Ind. 566; Bartholomew vs. First Nat. Bank, 57 Kan. 594; 47 Pac. 519; Conwell vs. MeCowan, 53 111. 363; Coe vs. N. J. Midland Ey. Co., 31 N. J. Eq. 106; Rice vs. Downing, 12 B. Mon. (Ky.) 44; City of Keokuk vs. Love, 31 Iowa 119; Schoonover vs. Allen, 40 Ark. 132; Gannett vs. Blodgett, 39 N. H. 150. 13 Fisher vs. Columbia Bldg. & Loan Assn., .59 Mo. App. 430; N. J. EIGHTS AND REMEDIES. 467 "Whten his debt has been only partially paid, it would be unreasonable to hold that the third party who made such pay- ment thereby acquired a precedence over him, or was even placed on an equal footing, in reference to the security for the pajTnent of the remainder of his debt." ^* The payment need not be made wholly by the surety. If the principal pays a portion of the debt, the surety on the pay- ment of the balance may be subrogated.^^ Where the creditor holds security for several obligations of the principal for some of which another is surety, the latter, although paying the entire debt for which he is surety cannot be subrogated to the securities until all the debts are satisfied for which the collaterals are held.^* The same principle applies when the creditor has security for a debt payable by installments and a surety is personally bound for one installment.^' Midland R. R. Co. vs. Wortendyke, 27 N. J. Eq. 658. "Cason vs. Connor, 83 Tex. 26; 18 S. W. 668. See also Graff & Co.'s Estate, 139 Pa. 69; 21 Atl. 233, Mitchell, J.. "However small the real debt to which the mortgage may be reduced, he is not only entitled to the whole ■land for its security and ultimate payment, but also to the sole and unimpeded possession, direction, and control of the mortgage and of all actions, remedies, or arrangements that they may desire to take there- on." "Neal vs. Buffington, 42 W. Va. 327; 26 S. E. 172; Magee vs. Leg- gett, 48 Miss. 139 ; Hess's Estate, 69 Pa. 272. 16 Wilcox vs. Fairhaven Bank, 7 Allen 270, Merrick, J. . " It is obvi- ous that, in order to become entitled to such substitution, he must first pay the whole of the debt or debts for which the property is mortgaged or the collateral security is given to the creditor; for it would be manifestly unjust, and a, plain vio- lation of his rights, to compel him to relinquish any portion of the property before the obligation for the performance of which it was con- veyed to him as security has been fully kept and complied with.'' 17 Carithers vs. Stuart, 87 Ind. 424; Massie vs. Mann, 17 Iowa 131.' Contra — Lynch vs. Hancock, 14 S. C. 66. Ward vs. Nat. Bank of New Zea- land, 8 New Zealand, L. R. 10; where it was held that where one is surety for a part of the debt he is entitled, on payment of that part, to be subrogated to a proportionate share of the securities which the creditor holds for the whole debt. 468 THE LAW OP SUEKTYSHIP. §263. Subrogation is a mere equity and will not be applied against the legal rights of others dealing with the prin- cipal. A surety who pays the debt of another will be subrogated to the remedies of the creditor in those cases where the transaction interferes with no vested rights of other persons in their rela- tions with the principal. If the payee of a promisory note' obtains judgment against the maker and the indorser, and the maker gives bond in stay of executi(in with another as surety, the latter by paying the judgment is not subrogated to the rights of the creditor against the indorser. It is one of the fixed rights of an indorser to pay the debt at maturity, and proceed for his indemnity against the maker. This valuable right is infringed and action upon it stayed by the act of the surety in executing the bond. The surety upon tibe bond caimot place the indorser in this position and then enforce payment from him under his so called equity of sub- rogation.^® If a person is surety for a debt, or indorser upon a note, or in any position of suretyship and judgment is entered against the principal, such liability continues, even though the principal se- cures a stay of execution, since the right to have stay of execu- tion by giving bond must be considered as having been in the contemplation of the parties at the time the suretyship con- tract was made, and if the principal fails to pay at the expira- tion of .the stay the creditor may exercise his option to proceed against the original suretyship obligation or against the stay bond. If he proceeds against the former, the promisor may be sub- rogated to the creditor's right on the stay bond,^° but if the pay- is Allegheny Valley R. Co. vs. Denier vs. Myers, 20 0. S. 336 ; Han- Dickey, 131 Pa. 86; 18 Atl. 1003; by's Adm. vs. Henritze's Admr., 85 Bohannon vs. Combs, 12 B. Mon. Va. 177; 7 S. E. 204; Friberg vs. (Ky.) 577. Donovan, 23 111. App. 58. 19 Schnitzers Appeal, 49 Pa. 23; EIGHTS AND EEMEDIES. 469 ment comes from the stay bond, the debt is thereby discharged as against all prior parties. It is by the application of this rule that the rights between sureties upon successive appeal bonds are adjusted. If bond is given, in appeal and judgment is rendered against the appellant, it is the right of the surety to pay the judgment and be at once subrogated to the rights of the creditor upon the judgment: but if a subsequent or second appeal is taken vs^ith new sureties, the latter will not be subrogated to the rights of the creditor upon the first bond although the creditor may pro- ceed upon either bond at his option. The last bond is in derogation of the rights of the first sure- ties and no liability exists against them in favor of the last promisors. Where successive appeal bonds were given it was said in reference to the rights of the last bondsmen, " But for their intervention the judgments may have been collected of tiie de- fendant therein. They secured the delay by agreeing to pay the judgment. The present defendants may have been injured, and justice would seem to demand, that between parties' thus situated the primary liability should rest upon those who inter- vened to procure the delay. It is a general rule that sureties^ upon payment, are entitled to be substituted to all the rights and remedies of the creditor as to any fund, lien or equity to which the latter may resort for payment, and in equity are entitled to the benefit of any judgment or instrument against the principal. This right of substitution does not depend upon contract but upon principles of equity arising out of the rela- tion of principal and surety, and the obligation of the former to indemnify the latter against loss. Upon the affirmance of the judgments at the General Term, these defendants had a right to pay the same as sureties, and to be substituted to the rights of the plaintiff in the judgments and to enforce the same against the defendants therein. " In that case, upon appeal to the Court of Appeals, the un- dertaking would necessarily inure to the benefit of the defend- ants as equitable owners of the judgments, and upon affirmance 470 THE LAW OF SURETYSHIP. in the Court of Appeals they could enforce it against the second sureties. The latter agreed, upon the contingency of affirmance, to stand in the place of their principal, the defendant in the judgments, and to pay the judgments. In effect they became sureties to and not for these defendants, and, hence, would not have been entitled, upon payment, to substitution against them." '" §264. The promisor who pays is entitled to have the securities held by the creditor assigned to him. Subrogation carries with it the right, on the part of the prom- isor who pays the debt of another, not merely to require the creditor to turn over such corporeal property which he holds as security, but also by proper assignment to substitute the surety as pledgee of all collateral or incorporeal securities and place the surety or guarantor in such position in reference thereto that they may enforce the collateral in their own name, and if the creditor does not upon demand make such assignment, the promisor may enforce the right by action. This right is of special importance where the creditor has a judgment for the debt which is a lien upon the lands of the debtor, or if no such lien exists where the assignment of the judgment would enable the promisor to acquire such lien. It is accordingly held that a surety who pays a judgment is entitled to have an assignment of the judgment to himself.^^ 20 Hinckley vs. Kreitz, 58 N. Y. Contra — Howe vs. Frazer, 2 Rob. 583, 590. (La.) 424. Referring to Schnitzel's Appeal, See also Holmes vs. Day, 108 ubi supra, the Court continues: Mass. 563, where it is held that " The reasoning in those cases ap- neither set of sureties in successive plies to this, that the later surety judicial bonds is entitled to aubroga- suflFers no injustice in being obliged tion against the other, to do what he has agreed ; and that 21 Townscnd vs. Whitney, 75 N. Y. his equities are subordinate to those 425; Creager vs. Brengle, 5 Harr. & of the original surety, because his J. (Md.) 234. interposition may have been the It is also held in Maryland that means of involving the first surety the payment of the judgment by the in ultimate liability to pay." surety, of itself, in equity, operates EIGHTS AND REMEDIES. 471 If there is no judgment, he is entitled to have the original debt assigned to him.^^ §265. Subrogation extends not only to seoarities but also to all remedies of the creditor. The payment by a promisor in suretyship of obligations of the principal subrogates the promisor to all the rights of action which the creditor might have maintained against parties whose wrongful dealings with the principal were the cause of the 'default. Thus where a receiver used trust funds in paying his individ- ual debt at a bank, the bank having knowledge of the trust char- Bs an assignment of the judgment, so as to enable him to have execution for his own benefit. Crisfield vs. State, 55 Md. 192; Potvin vs. Mey- ers, 27 Neb. 749; 44 N. W. 25; Burke vs. Lee, 59 Ga. 165; Benne vs. Schnecko, 100 Mo. 250; 13 S. W. 82. In Kansas the code provides for an assignment of a judgment to a sure- ty who pays. Harris vs. Frank, 29 Kan. 200. If the judgment is assigned to the surety he may have execution on his own behalf, or a revival of the judgment lien on the land of the debtor, if such lien has become dor- mant. Harper vs. Kemble, 65 Mo. App. 514. 22SubIett vs. McKinney, 19 Tex. 438, Wheeler, J. : " It is the doc- trine of the Civil Law, and it was the doctrine of the Court of Chan- cery in England in the time of Lord Hardwick, that the surety is entitled upon the payment of the debt of the principal, not only to have the full benefit of all the collateral secur- ities, both of an equitable and legal nature, which the creditor has taken as an additional pledge for his debt, but he is entitled to be substituted, as to the very debt itself, to the creditor, and to have it assigned to him." Lumpkin vs. Mills, 4 Ga. 349, Nis- bet, J. : " Now, what I have to say in reference to this reason, is this — it applies with equal force in favor of the surety's right to the transfer of the debt itself, as in favor of his right to a transfer of the collateral securities. He is entitled to the lat- ter, not by contract, but according to the principles of natural reason and justice. By these principles, he is made to stand in the place of the creditor. And so standing, the right of collateral secvirities follows. Here is the doctrine of substitution recognized, and the powers of a Court of Chancery are invoked to give it effect The substitu- tion of the surety is not for the creditor as he stands related to the principal after the payment, but as he stood related to him before the payment. He is subrogated to such rights as the creditor then had against the principal." See also Merriken vs. Godwin, 2 Del. Ch. 236. 472 THE LAW OF SUEETYSHIP, aeter of the funds, and the receiver being in default, his surety, after payment, brought action against the bank claiming to be subrogated to the rights of the creditor to subject the trust funds, the Court said : " The result of the authorities is that the surety who has paid the debt of his principal is, upon the equity which springs out of the relation of principal and surety, and the fact of his payment, subrogated to all the rights and remedies of the creditor. It may, therefore, be stated that the right of a surety, when he has paid the debt of his principal, to invoke the doctrine of subrogation is not dependent upon whether he has recovered judgment against the principal and issued thereon execution which has been returned nulla bona, as it does in cases where a creditor by a creditor's bill seeks the aid of a court of equity to obtain relief It is stated to be a rule deducible from many authorities, that a bank cannot use a deposit to pay the individual debt of the depositor due it when it has knowledge that the deposit is held by the depositor in a fiduciary capacity and does not belong to him personally It seems, therefore^ clear to us that the defendant was liable to the beneficiaries in the partition suit for the amount of money collected by them for the receiver and applied to the payment of his individual indebtedness to it, and that it follows as an inevitable corollary to this proposition that the plaintiffs, who were compelled as sureties for the re- ceiver on his bond to pay the amount specified in the order of the court to the beneficiaries, in consequence thereof, became in equity subrogated to their rights as respects the fund which was held for their use by the defendant, and are entitled to recover the same in this action." ^* 23 Clark vs. First Nat. Bank, 57 converted, and the surety brought Mo. App. 277. action against the pledgee. Held — See also Blake vs. Traders Nat. " The payment was to the trustees, Bank, 145 Mass. 13; 12 N. E. 414. and was a substitute for the fund In this case a trustee pledged bank which was in the hands of the de- shares belonging to his trust as a fendant, and which it was bound to security for his individual debt. His account for to the trustees, and successor in the trust recovered from would give to the surety all the the surety the value of the stock so rights which the trustees had to EIGHTS AND EEMEDIES. 473 So also where an administrator misapplies assets in his hands and invests them for his own account, the creditors of the estate have the option to go against the bond of the administrator, or pursue the fund if they are able to trace and identify it,^* and if they elect to collect from the sureties, the latter will be sub- rogated tb their rights to subject the funds. ^^ Where the bond is to secure the purchase price of property, the vendor reserving title, a payment by the surety subro- gates him to the right of the vendor to maintain ejectment against the purchaser, or those claiming under him.^" recover the fund; it would operate aa an assignment to the surety of the fund, and of the right of action of the trustees to recover it. In this case, the defendant and the surety were both liable to the trustees for the amount of the trust property; the former, in consequence of partici- pating in the wrongful act of the first trustee; and the latter, by his contract to indemnify the estate against such act. The cases are analogous where one owner of prop- erty has claims for a loss against an insurer and a tort-feasor. The in- surer is in the nature of a surety, and, upon paying the loss he is sub- rogated to the rights of the owner to recover for the tort. Hart vs. Western Railroad, 13 Met. 99 ; Clark vs. Wilson, 103 Mass. 219; Mercan- tile Ins. Co. vs. Clark, 118 Mass. 288." See also Powell vs. Jones, 1 Ired. Eq. (N. C.) 337; Cowgill vs. Lin- ville, 20 Mo. App. 138. The right of subrogation will not be available in following trust funds where it is shown that the one re- ceiving the fund had no knowledge of its trust character. Brown vs. Houck, 41 Hun. 16. 2*Neely vs. Rood, .54 Mich. 134; 19 N. W. 920. -'' Pierce vs. Holzer, 65 Mich. 263 ; 32 N. W. 431, ChampUn, J.: "The law subjects the assets of a deceased person to the payment of his debts, and for this reason the creditor has an equitable lien thereon, which he can enforce through the administra- tor in a proper case for equitable interference. The misapplication of the assets to the injury of the cred- itors, and neglect to pay after an or- der of distribution, is such a, case. In such case the creditor can follow the fund, if he can trace it in its changed form, in the hands of the trustee or purchaser with notice, and, upon a familiar principle, the surety who satisfies the debt is en- titled to the securities against the principal debtor that the creditor has for reimbursement." See also Wheeler vs. Hawkins, 116 Ind. 515; 19 IST. E. 470; Scott vs. Patchin, 54 Vt. 251; Stetson vs Moulton, 140 Mass. 597; 5 N. E. 809 ; Gilbert vs. Neely, 35 Ark. 25 ; Brown vs. Houck, 41 Hun 16; Har- ris vs. Harrison, 78 N. C. 202 ; Rice vs. Rice, 108 111. 199; Kennedy vs. Pickens, 3 Ired. Eq. (N. C.) 147; Farmers & Traders Bank vs. Fidel- ity & Deposit Co., 22 Ky. L. Rep. 22 ; 56 S. W. 671; Skipwith vs. Hurt, 94 Tex. 322; 60 S. W. 423. 26 Fulkerson vs. Brownlee, 69 Mo. 371. 474 THE LAW OF SUEETTSHIP. The rights of a judgment creditor to subject assets of the debtor by creditors' bill is transferred by subrogation to the sure- ty who pays the judgment, and the surety may recover any fund or equity owing the principal which the creditor might have pursued/^ The surety may maintain an action to set aside a fraudulent conveyance in the right of the creditor by paying the debt of the fraudulent grantor/* Where a surety of a sheriff paid a loss resulting from the mis- conduct of the sheriff's deputy, it was held that he was entitled to be subrogated to the rights of the sheriff upon the bond of the deputy.^" If the debt which the surety pays is entitled to priority, the A surety for the purchase price has a right of subrogation to the vendor's lien. Ballew vs. Eoler, 124 Ind. 557; 24 N. E. 976; Tuck vs. Calvert, 33 Md. 209; Stenhouse vs. Davis, 82 N. C. 432; Myres vs. Ya- ple, 60 Mich. 339; 27 N. W. 536; Torp vs. Gulseth, 37 Minn. 135; 33 N. W. 550; Deitzler vs. Mishler, 37 Pa. 82; Ghiselin vs. Ferguson, 4 Har. & J. (Md.) 522. 2'Bittick vs. Wilkins, 7 Heisk. (Term.) 307; Sweet vs. Jefifries, 48 Mo. 279. ssTatum vs. Tatum, 1 Ired. Eq. (is. C.) 113. The right of a surety to set aside a fraudulent conveyance dates from the time of the execution of the suretyship contract and not merely from the time when he pays the debt of his principal, although he cannot bring such action until after payment. It is necessary for the protection of the surety that his right of subrogation, when complet- ed by payment, should relate back to the beginning of the transaction as otherwise an intervening fraudulent conveyance would render the right of subrogation of no value. Hatfield vs. Merod, 82 111. 113; Keel vs. Lar- kin, 72 Ala. 493; Loughridge vs. Bowland, 52 Miss. 546 ; Sargent vs, Salmond, 27 Me. 539. 29 Brinson vs. Thomas, 2 Jones Eq. (N. C.) 414. Where a sheriff takes indemnity against loss result- ing from his oflScial acts, and his sureties are required to pay dam- ages, they may resort to the indem- nity. People vs. Schuyler, 4 N. Y. 183, Gardiner, J. : " The action of tres- pass against sheriffs for the seizure of property in the execution of legal process, is sui generis. It is regard- ed by the law in many instances as a means of determining the title to property, rather than in the light of an ordinary trespass. Good faith on the part of the officer is presumed, and he may consequently require and receive indemnity before proceeding to the final execution of the writ. The form of the 'indemnity in this case was prescribed by statute, and the sheriff made the sole judge of its sufficiency. His sureties, on pay- ment of the judgment against their principal, would be entitled to sub- rogation, and to the benefit of hiS' security." EIGHTS AND REMEDIES. 47E creditor's right to claim such priority inures to the surety; as ■where the debt runs to the government, the surety is subrogated to the priority of the government.^" It has been held that where a note contained the stipulation that if not paid at maturity judgment might be entered for the amount of the note and interest and 10 per cent, additional as attorney's fees, and the surety paid the note at maturity, he was entitled to be subrogated to the rights of the holder and to recover from the maker the amount which he paid and the 10 per cent, additional stipulated as attorney's fees."^ A surety who pays may be subrogated to all the remedies of the creditor upon the principal obligation and may maintain action on the main contract against a co-surety.^^ A surety upon a building contract, who completes the build- so Hunter vs. United States, 5 Pet. ,■ 173. See also Boltz's Estate, 133 Pa. 77 ; 19 Atl. 303 ; Whitbeck vs. Kam- eay's Estate, 74 111. App. 524 ; Riehe- son vs. Crawford, 94 111. 165 ; Stokes vs. Little, 65 111. App. 255 ; Irby vs. Livingston, 81 Ga. 281; 6 S. E. 591. Orem vs. Wrightson, 51 Md. 34, Brent, J. : " We think the doctrine is well established by a decided pre- ponderance of the cases, that a sure- ty, who has paid the debt of his principal obligor, is subrogated in equity by the act of payment, not only to the securities of the creditor, but to all his rights of priority. If therefore the creditor could have rightfully claimed a preference in the distribution of assets, the same preference will be upheld by way of subrogation for the benefit of the surety While this view of the law will do no wrong to any one, it will add facilities in securing and collecting the revenue of the State. If sureties know that they can be subrogated to the priority of the State, less apprehension will be felt in joining in the bonds of collectors, and less delay in payment by solv- ent sureties, other creditors are not injured, for if the State has the first claim upon the fund, it does them no wrong whether its claim is enforced by the State, or by those standing in its stead." It has been held that the sureties upon a tax collector's bond may be subrogated to the rights of the State in the uncollected taxes. Livingston vs. Anderson, 80 Ga. 175; 5 S. E. 48. But see Jones vs. Gibson, S2 Ky. 561. 31 Carpenter vs. Minter, 72 Tex. 370; 12 S. W. 180; Beville vs. Boyd, 16 Tex. Civ. App. 491; 41 S. W. 670; 42 S. W. 318. See also Josselyn vs. Edwards, 57 Ind. 212. But see Waldrip vs. Black, 74 Cal. 409; 16 Pac. 226. 32 Howland vs. White, 48 111. App. 236 ; Kimnel vs. Lowe, 28 Minn. 265 ; 9 N. W. 764; Braught vs. Griffith, 16 Iowa 26; Smith vs. Latimer, 15 B. Mon. (Ky.) 75. 4:76 THE LAW OF SUEETYSHIP. ing, will be subrogated to the 10 per cent, reservation in the contract as against a subsequent assignment of the reserved fund, and may maintain an action for its recovery."^ §266. Surety paying judgment against the principal will be subrogated to the lien and other rights of the creditor under the judgment. It has sometimes been considered that payment of a judg- ment, even by a surety, extinguishes it and that no remedy by subrogation to the judgment can be reserved to the surety, and that the relation of the surety to the principal after the pay- ment of the judgment is that of an ordinary creditor. Such was the holding in England prior to the Mercantile Amend- ment Act.^* 33 Prairie State Bank vs. United States, 164 U. S. 227 ; 17 S. Ct. 142. In this case the bank advanced money to the contractor to enable him to complete the building, and took an assignment of the reserve fund, and claimed an equitable lien on the same and asked to have such lien held superior to the surety's right of subrogation. White, J. : " Under the principles thus governing subrogation, it is clear whilst Hitchcock was entitled to subrogation the bank was not. The former in making his payments discharged an obligation due by Sundberg for the performance of which he, Hitchcock, was bound un- der the obligation of his suretyship. The bank, on the contrary, was a mere volunteer, who lent money to Sundberg on the faith of a presumed agreement and of supposed rights ac- quired thereunder. The sole ques- tion, therefore, is whether the equi- table lien, which the bank claims it has, without reference to the ques- tion of its subrogation, is 'para- mount to the right of STibro- vgation which unquestionably exists in favor of Hitchcock. In other words the rights of the parties depend upon whether Hitchcock's subrogation must be considered as arising from and relating back to the date of the original con- tract, or as taking its origin solely from the date of the advance by him. . . Sundberg & Company could not transfer to the bank any greater rights in the fund than they them- selves possessed. Their rights were subordinate to those of the United States and the sureties, depending, therefore, solely upon the rights claimed to have been derived in Feb- ruary, 1890, by express contract with Sundberg & Company, it necessarily results that the equity, if any, ac- quired by the Prairie Bank in the ten per cent, fund then in existence and thereafter to arise was subor- dinate to the equity which had, in May, 1888, arisen . in favor of the surety Hitchcock." s* See Mercantile Amendment Act, Ante Sec. 26 1 — note. Dowbiggen vs. Bourne, 2 Younge & Collier 462. In EIGHTS AND EEMEDIES. 477 If the payment of a specialty debt such as a note, bond or judgment makes of the surety a specialty creditor, he will there- by preserve to himself all the higher privileges, which attach to a specialty, among which are those arising from Statutes of Limitation wherein a longer period is given within which to commence an action, and in the case of judgments, the impor- tant remedy of reaching the property of the principal through the lien of the judgment. Thesei are distinct advantages as compared vnth simple contract rights. Furthermore if subrogation is to attach at all, in the case of this case judgment was entered against the principal maker of a note, and subsequently this judgment was paid by the surety who brought an action to obtain an assignment to himself of the judgment against the principal, claiming a right of sub- rogation to this judgment. The de- cree for assignment was denied upon the ground that such an assignment would be wholly useless, since the judgment being paid, no execution could issue thereon, that the surety is only substituted to the rights of the creditor at the time of the sub- stitution, and the creditor having no right of execution after payment by the surety, no such right could pass to the surety by subrogation. The ease of Copis vs. Middleton, Turn. & Russ. Ch. Rep. 224, arose upon a bond which the surety paid and sought subrogation to the rights of the creditor on the bond as a, spe- cialty, and it was held that the sure- ty paying such obligation extin- guished it, and that the surety be- came merely a simple contract cred- itor of the principal. The Lord Chancellor said : " It is a general rule that in equity a surety is en- titled to the benefit of all the securi- ties which the creditor has against the principal, but then the nature of those securities must be consid- ered; when there is a bond merely, if an action was brought upon the bond, it would appear upon oyer of the bond, that the debt was extin- guished; the general rule therefore must be qualified, by considering it to apply to such securities as con- tinue to exist, and do not get back upon payment to the person of the principal debtor; ... I confess that I was astonished to hear that it had been decided, that when there was merely a bond, and payment of the bond, without more, the surety was to be considered as a specialty creditor." The doctrine of this case is now superseded by Statute in En- gland and generally discredited in this country. But in reference to the case. Lord Brougham said in a later case (Hodgson vs. Shaw, 3 Mylne & K. 183, ubi supra) : , " The principles upon which Copis vs. Mid- dleton rests are sound and unques- tionable; and it is only upon a nar- row and superficial view of the sub- ject that the decision has ever been charged with refinement or subtlety. The ground of the determination was clear; it was founded upon the known rules of law, and determined in strict conformity with the doc- trines of this Court," 478 THE LAW OF SUEETYSHIP. a judgment lien, it would be of no value unless the right of the surety to subject the property dates from the time the lien first fastens upon the land, without regard to the time when the judgment was paid. The hypothesis that the payment of the judgment by the surety cancels it, or at best substitutes the surety as a lienor from the date of the payment, is a refined technicality which wholly disregards the' equity of the doctrine of subrogation and is no longer upheld by the courts. The generally accepted view now is that where a judgment is paid by one who is collaterally liable as surety, whether the creditor has a joint judgment against the principal and surety, or separate judgment against them or a judgment against the principal only, the surety paying is subrogated to all the rights and liens of the creditor under the judgment with the same position of priority occupied by the creditor.^'' 35 Lumpkin vs. Mills, 4 Ga. 343; Dempsey vs. Bush, 18 0. S. 376; Neal vs. Nash, 23 O. S. 483; Hill vs. King, 48 0. S. 75 ; 26 N. E. 988. Minshall, C. J. : " The rule is that so soon as the surety pays the debt of his principal there arises in his favor an equity to be subrogated to all the rights, remedies and se- curities of the creditor, and has the right to enforce them against the principal for the purpose of his in- demnification. Whilst payment by the surety discharges the debt and extinguishes all the securities so far as concerns the creditor, such is not its efi'ect as between the principal and the surety, and all vs^ho stand, in the shoes of the former; as to these, it is in the nature of a purchase by the surety from the creditor, and operates as an assignment of the debt and securities to the surety. And, if a, question is made whether the acts of the surety have been such as to keep the security on foot, the court, in the absence of evidence to the contrary, will presume that they were done with that intention which is most for the benefit of the party doing them." Benne vs. Schnecko, 100 Mo. 250, 13 S. W. 82; Harper vs. Eosenberg- er, 56 Mo. App. 388; Cauthorn vs. Berry, 69 Mo. App. 404; McNairy vs. Eastland, 10 Yerg. (Tenn.) 310; Swan vs. Smith, 57 Miss. 548 (Stat- utory ) ; Bragg vs. Patterson, 85 Ala. 233, 4 South. 716 (Statutory); Thomason vs. Wade, 72' Ga. 160 (Statutory) ; Hevener vs. Berry, 17 W. Va. 474; Dodd vs. Wil- son, 4 Del. Ch. 399; Folsom vs. Carli, 5 Minn. 333; Schoonover vs. Allen, 40 Ark. 132; Connelly vs. Bourg, 16 La. Ann. 108 (Statutory) ; Potvin vs. Meyers, 27 Neb. 749, 44 N. W. 25 ; Gerber vs. Sharp, 72 Ind. 553; Braught vs. Griffith, 16 Iowa 26; Searing vs. Berry, 58 Iowa 20, 11 N. W. 708; Schleissman vs. Kal- lenberg, 72 Iowa 338, 33 N. W. 459; Edgerly vs. Emerson, 23 N. H. 555; Harris Vs. Prank, 29 Kan. 200 / Stat- EIGHTS AND REMEDIES. 479 If the judgment of the creditor is against several co-sureties the surety paying will be subrogated to the rights of the creditor upon the judgment against the co-sureties/^ utory) ; Allen vs. Powell, 108 111. 584; Chandler vs. Higgins, 109 II 602; Kinard vs. Baird, 20 S. C. 377; Sotheren vs. Reed, 4 Harr. & J. (Md.) 307; GiflFord vs. Rising, 12 N. Y. Supp. 430; Hinckley vs. Kreitz, 58 N. Y. 583; Townsend vs. Whit- ney, 75 N. Y. 425. Earl, J.. " Where one of two joint debtors, both of whom are principals, pays a joint judgment, the judg- ment becomes extinguished, what- ever may have been the intention of the parties to the transaction; and it is not in their power, by any ar- rangement between them, to keep the judgment on foot, for the benefit of the party making the payment. The remedy of the party thus paying is by an action against his co-debtor for contribution. But a different rule prevails where one of the joint judgment debtors is a surety upon the obligation put into judgment. Under the civil law, a surety pay- ing the joint obligation is entitled not only to be subrogated to all the securities which the creditor holds for the payment of the debt, but he is entitled to be substituted as to the very debt itself, to the creditor, by way of cession or assignment. It treats the transaction between the surety and the creditor, according to the presumed intention of the par- ties, to be not so much a payment as a sale of the debt.'' Cotrell's Appeal, 23 Pa. 294. Woodvxird, J. : " Subrogation is founded on principles of equity and benevolence, and may be decreed where no contract or privity of any kind exists between the parties. Wherever one not a mere volunteer discharges the debt of another, he is entitled to all the remedies which the creditor possessed against the debtor. Actual payment discharges a judgment or other encumbrance at law, but where justice requires it we keep it a foot in equity for the safe- ty of the paying surety." Appeal of Ward, 100 Pa. 289; Boltz's Estate, 133 Pa. 77, 19 Atl. 303. Contra — Foster vs. Trustees of Athenaeum, 3 Ala. 302; Adams vs. Drake, II Cush. 504. 36 German American Savings Bank vs. Fritz, 68 Wis. 390; 32 N. W. 123; Furnold vs. Bank, 44 Mo. 336 ; Smith vs. Rumsey, 33 Mich. 183; Lidder- dale vs. Robinson, 2 Brock. 159. Marshall, C. J. : " The cases sup- pose the surety to stand in the place of the creditor as completely as if the instrument had been transferred to him, or to a trustee for his use. Under this supposition, he would be at full liberty to proceed against every person bound by the instru- ment. Equity would undoubtedly restrain him from obtaining more from any individual than the just proportion of that individual; but to that extent, his claim upon his co-surety is precisely as valid a^' upon his principal." 480 THE LAW OF SURETYSHIP. §267. A suretyship promisor who pays will be subrogated to any mortgage security which the creditor holds for the debt. Where a surety pays a debt for which the creditor holds a mortgage and the latter assi^is the mortgage to the surely, the rights of the surety in the mortgage do not depend solely upon the application of the doctrine of subrogation, but the transac- tion is rather a purchase, and the rights of the surety, as an as- signee of the mortgage, are unaffected by the fact that by oper- ation of law he might have succeeded to the same interest in the mortgage without aji assignment. An assignment of a mortgage to a surety paying the debt is not necessary for his protection since he will be subrogated to the benefit of it by operation of law.*^ Subrogation to the position of the mortgagee gives to the surety the right to have foreclosure in his own name,^* or to re- cover possession of personal property covered by lie mortgage if the same has been transferred, or its value, if the transferee converts it.^^ The equity of the surety who pays the debt is superior to any subsequent claim of the creditor, and a cancellation of the mort- gage by the creditor after payment, disregarding the equity of the surety, will not affect the right of subrogation, except as to innocent third persons whose claims thereafter attach. 37 Beaver vs. Slanker, 94 111. 175, assignment of the mortgage and to Sheldon, J. .- " As a mere assignee stand in the place of the mortgagee, alone of the mortgage, the complain- and that the mortgage will remain ant might not be able to sustain this a valid and effectual security in fa- decree in his favor, as the judgment vor of the surety for the purpose of for the mortgage debt was satisfied obtaining his reimbursement, not- in full by the sale under execution withstanding the obligation is paid, of Kleinworth's land. But, upon The mortgage is rega-rded as not the doctrine of subrogation, we think only for the creditor's security, but there is sufficient support for the de- for the surety's indemnity as well." ci-ee. It is the undoubted principle Murrell vs. Scott, 51 Tex. 520; of equity, that if, at the time when Nat. Bank vs. Gushing, 53 Vt. 321 ; the obligation of the principal and O'Hara vs. Haas, 46 Miss. 374. surety is given, a mortgage also is ss McLean vs. Towle, 3 Sand. Ch. made by the principal to the credit- 118; Jacques vs. Fackney, 64 111. 87; or, as an additional security for the Gossin vs. Brown, 11 Pa. 527. debt, then, if the surety pays the 39 Lewis vs. Palmer, 28 N. Y. 271. debtj he will be entitled to have an EIGHTS AND EEMKDIES. 481 Thus where the creditor on receipt of payment from the sure- ty entered a satisfaction of the mortgage on the records and thereafter acquired a judgment lien on the land, it was held that the equity of the surety was superior to the judgment lien." The question has been somewhat mooted as to whether a sub- sequent advancement by the creditor, for which the surety has not made himself liable, may be tacked to the mortgage and be preferred as a claim upon the property as against the surety's equity of subrogation. In other words, whether the surety must also pay the additional debt in order to have the benefit of the mortgage as to the original debt. The English judges have disagreed upon this point. The Master of Rolls, Sir John Romilly, to whose opinions great def- erence is shown, is credited with the view that the right of the surety to stand in the place of the mortgagee is subject to the right of the mortgagee to Taake further advances to the mort- gagor, and take further security on his land, an.d that his lien for the additional charges is superior to the mere equity of subro- gation which accrues to the surety. The rule stated by him was that the surety paying the debt is entitled to subrogation to the securities " provided the creditor has no lien upon them, or right to make them available against the principal debtor, to enforce the payment of a debt different from that which the surety has paid. But if the creditor has such a right^ and one arising out of the transaction itself^ of which the suretyship forms a part, then the right of the surety to the benefit of the securities is subordinate to the right of the creditor to make them available for the payment of his other claims, and can only be made available after the paramount right is satisfied." *'■ ■"•City Nat. Bank vs. Dudgeon, 65 for the first sum but not for the oth- III. 11. er, and it was held that, the surety " Farebrother vs. Wodehouse, 23 must pay the whole sum of £5.000 Beav. 18. The facts in this case were before he could be subrogated to the that two mortgages were given at mortgage. There is a distinction to the same time ; one for £2,000, and be made between additional advance- one for £3,000. The surety engaged ments as a part of the same transac- 482 THE LAW OF SUEETYSHIP. It was later held in England that " The surety is entitled to have all the securities preserved for hira, which were taken at the time of the suretyship, or, as I think it is now settled, sub- sequently. Nor does it matter at all in principle, whether the creditor takes a further security for further advances made prior to the time when the surety makes payment of the debt. They can have nothing to do with the surety. He is entitled to the benefit of the securities, though his payment be not made until after the time when the further advances were made by the creditor. The principle is that the surety in effect bargains that the securities which the creditor takes shall be for him, if and when he shall be called upon to make any payment, and it is the duty of the creditor to keep the securities intact ; not to give them up or to burthen them with further advances." *^ The rule as to tacking upon a secured claim, the subsequent advancement of a creditor is the same in principle whether the security is a mortgage or personal collaterals and the generally accepted doctrine in this county is that the equity of the surety attaches to the collaterals as soon as the suretyship contract is tion, and subsequent advancements vancements. The creditor sold land, made after the rights of the parties to be paid for in three installments, are fixed. reserving title as security, and the But see Williams vs. Owen, 13 Si- surety engaged for the first install- mons, 597. Where the advancements ment, and upon the payment of this were made as a separate transaction installment claimed subrogation to and subsequent to the suretyship the vendor's lien, and the Court said, contract, and it was held that the " This cannot be equity. The surety surety must pay the subsequent will be permitted to occupy the place liens before exercising his right of of the creditor, when the latter no subrogation. longer has occasion to hold it for his See also Grubbs vs. Wysors, 32 own protection, but equity will Uratt. 127. The facts of this case never displace him, to his prejudice, seem to be parallel with those upon merely to give the surety a better which Sir John Eomilly based his footing." opinion, as quoted in the text. The See also Rice vs. Morris, 82 Ind. creditor had security for the entire 204. debt and for a part of it had the *2 Forbes vs. Jackson, 19 Ch. Div. personal obligation of a surety. The 015 (1882). debt in its entirety arose out of the See also Bowker vs. Bull, 1 Sim. same transaction and was not as in (N. S.) 29; Drew vs. Lockett, 32 Williams vs. Owen (ubi supra) Beav. 499. made up in part of subsequent ad- EIGHTS AND REMEDIES. 483 made, and this equity cannot be displaced so as to apply the se- curities to subsequent advancements until the surety has first been indemnified/" §268. Subrogation applies to one in the situation of a surety. One to whom the privileges of suretyship are extended by op- eration of law is clothed with all the benefits of the relationship ■13 Nat. Exchange Bank vs. Silli- man, 65 N. Y. 475. Dwight, C: "The only doubt that can arise in the case at bar is, whether the defendants can insist on a priority of application of the pro- ceeds of the collaterals, or whether they are only entitled to share in them, pari passu, with the plaintiff. I think that the presumption is, that the equity of a surety attaches to the trust fund as soon as the trust relation is created, and the burden of proof is on any one who asserts the contrary to establish it. Un- doubtedly an arrangement might be made whereby the right of subroga- tion might be qualified or modified by agreement, so that subsequent sureties, on wholly different and later claims, might participate in the benefit of collateral securities. This would not be the ordinary rule, and some evidence would be required to establish its existence in a par- ticular case. The same rule must be applied to a creditor making sub- sequent advances to the debtor who deposited the collaterals; while as between him and the debtor, they might be applied to all claims rat- ably; yet as to the surety, they could not be, unless he knew, or had reason to know, that such was the fair intent of the transaction. The ordinary interpretation of the deal- ings of the parties would be, that the surety, when he undertook his liability, acquired, in equity, a lien upon the fund, which the creditor could not displace. . It is not necessary to contend that these rules would be applicable if the col- laterals were deposited as security for one transaction consisting of sev- eral parts or branches. In that ease it may be that there are no superior equities, and that the collaterals must be applied to the entire indebt- edness. This was so held in Fare- brother vs. Wodehouse (23 Beav. 18). This case was placed distinct- ly on the ground that at the very time the surety entered into his ob- ligation, there was a loan of two sums by the same creditor to the same debtor, of which the surety was made aware. The case at bar would resemble it if it should be supposed that a number of notes were dis- counted at one time, and on one of them there was an indorser, and on others none, and the indorser knew all the facts; even then the doctrine of tacking would need to be invoked to shut out the surety. Whether that could be applied in our law, I need not consider. What now is claimed is, that the rule of priority must prevail where the transactions are distinct and unconnected, and that where they are apparently sep- arate, the burden of proof is on the creditor to show their connection and thus to overcome the rule of pri- ority." 484 THE LAW OF SUEETYSIIIP. the same as if a special undertaking had been entered into to pay the debt of another. Thus where a retiring partner is called upon to pay a firm debt, which by agreement between himself and partner should have been paid by the latter. The retiring partner who thus pays is in the situation of a surety and will be subrogated to aJl the securities and remedies of the creditor/* Or where a judg- ment is a lien upon two pieces of land and the owner conveys one of them, the vendee is in the situation of a surety, and to the extent of the judgment which he is required to pay may be sub- rogated to the remedies of the creditor, and enforce the lien against the remaining piece of land.*^ The same principle is involved where land is sold subject to a mortgage which the purchaser assumes and agrees to pay, the vendor remains liable for the debt, but is in the situation of a surety, and if he pays he will be subrogated to the mortgage and may have foreclosure for his own beneiit,*'' A regular indorser of a bill or note is in the situation of a surety, and as to him all prior parties are principal obligors, and upon payment, either voluntarily or otherwise, he is entitled to subrogation to all the remedies of the holder against the maker or other prior parties, and to have recourse to all sepurities in the possession of the holder which belong either to the maker or the intervening indorsers. It was held that an indorser paying was entitled to be subro- gated to the right of the holder to have execution against the person of the principal debtor.*' Where the maker of a note executes a mortgage, or pledges collateral for its security, the indorser who pays the note is en- ** Conwell vs. MeOowan, 81 111. *^ Marsh vs. Pike, 10 Paige Ch. 285; Shinn vs. Shinn, 91 111. 477; 595; Johnson vs. Zink, 51 N. Y. 333; Chandler vs. Hlggins, 109 111. 602; Ayres vs. Dixon, 78 N. Y. 318; Or- .lEtna Ins. Co. vs. Wires, 28 Vt. 93; rick vs. Durham, 79 Mo. 174; Brown Scott's Appeal, 88 Pa. 173; Laylin vs. Kirk, 20 Mo. App. 525. vs. Knox, 41 Mich. 40; IN. W. 913; <7 Woodward vs. Pell, L. R. 4. Q. Swan vs. Smith, 57 Miss. 548. B. 55. 45 Lowry vs. McKinney, 68 Pa. 294. EIGHTS AND REMEDIES. 485 titled to be subrogated to the rights of the holder in the mort- gage and collateral.*'* Where a wife joins in a mortgage on lands of her husband, for the purpose of relinquishing dower, and thereafter redeems the land from the mortgage with her own funds, she will be sub- rogated to the lien and priority of tlie mortgage.*" It is held that where a wife pays a mortgage, executed by herseK and husband, upon land in which she has a life interest, that she will be subrogated to the rights of the mortgagee to the amount of her payment.^" In a case where two persons were jointly liable for a debt, and as to each other were co-debtors, it was held that the one paying the debt is in the situation of a surety and entitled to be subrogated to the rights of the creditor against his co-debtor.°^ IS Bridgman vs. Johnson, 44 Mich. 491 ; 7 N. W. 83 ; Seixas vs. Gonsou- lin, 40 La. Ann. 3S1 ; 4 South. 453 : BeckwHh vs. Webber, 78 Mich. 390; 44 N. W. 330; O'Hara vs. Haas, 46 Miss. 374; Yates vs. Mead, 68 Miss. 787; 10 South. 75. Contra — Applewhite vs. Shaw, 4 Humph. (Tenn.) 93. It is held that an accommodation- acceptor of a bill, while a principal debtor as to the holder, is a mere surety as to the drawer, and is en- titled to subrogation to the securi- ties of the drawer in the hands of the holder. Toronto Bank vs. Hunter, 4 Bosw. (N. Y.) 646. *8 JeflFerson vs. Edrington, 53 Ark. 545; 14 S. W. 903. soOhmer vs. Boyer, 89 Ala. 273; 7 South. 663. SI Greenlaw vs. Pettit, 87 Tenn. 467; 11 S. W. 357; The Hattie M. Spraker, 29 Fed. Rep. 457. In this ease a vessel was damaged by the common fault of two other vessels, and one of the vessels liable paid the entire claim, and it was held that it was subrogated to the rights of the damaged vessel against the other wrongdoer. See also Baltimore & Ohio R. R. Co. vs. Walker, 45 0. S. 577 ; 16 N. E. 475. In this case two railroads crossing each other at grade were re- quired by law to keep the crossing in a condition prescribed by statute, and maintain a watchman at the junction. One of the railroads made the repairs and paid all the expenses chargeable by law agaiust both, and brought this action against the oth- er to recover back one-half. The de- fendant contended that the payment was voluntary and raised no implied promise to contribute. But the court applied the rule of subroga- tion, holding that the performance of a joint duty by one co-obligor gives to him the same right to recover from the other which was originally vested in the creditor party. A co-obligor paying the joint ob- ligation will be subrogated to the securities deposited with the cred- itor by the other joint debtor. Vincent vs. Logsdon, 17 Oregon ■2S'l ; 20 Pr,c. 429 ; McCready vs. Van Antwerp, 24 Hun 322. 486 THE LAW OF SUEETTSHIP. §269. Surety who pays the debt is entitled to be subrogated to a pro rata share of any dividend which is derived from the assets of the principal. If the assets of the principal are administered by proceedings in insolvency, the dividends distributed belong equally to all creditors of the same class, and where certain debts are secured by the obligations of third parties, the dividend is applicable to each and every part of the secured debt, and if the debt ex- ceeds the limit of the liability of the surety, the latter, if he pays his obligation, is entitled to receive by way of subrogation, such proportion of the dividend as the amount of his payment bears to the entire debt. Thus a letter of guaranty bound the guarantor to an amount not exceeding £400, but the advancements made to the principal amounted to £625. The assets of the principal were adminis- tered through insolvency proceedings and the question arising was, whether the dividends should be applied wholly in the re- duction of the larger sum, and the balance, up to the limit of the letter of credit to be paid by the guarantor, or whether a pro rata share of the dividend should be applied in reduction of that part of the debt covered by the guaranty, and the guarantor held for the balance, and it was held, " If the whole amount of the debt from M — had not exceeded the £400, it is clear that the defendant would have received the full benefit of the divi- dend of 8s. Yd. in the pound, as he could not have been answer- able under the guaranty for more than the remainder, after the deduction of such dividend ; and although the amount of the debt does in this case exceed the £400, and thereby the position of the creditor is so far altered, that one part of the debt, viz., to the extent of £400, is guaranteed, and the remainder not, still there seems no reason why the application of a payment of so much in the pound upon the whole debt should in any way be affected by the collateral circumstance of the guaranty ; or why such payment should not be applicable as well to the £400 guaranteed as to the part uncovered by the guaranty." °^ 62 Bardwell vs. Lydall, 7 Bing. See also Gray vs. Seckham, L. R. 489. 7 Ch. App. 680. lUGUTS AXJ) KEilEUlJib. -iiST A similai- question also arises in bankruptcy proceedings where the claim is in part secured by a siirety, and where the holder of the claim has been paid such part, as to whether he may prove the entire claim, and have the dividends upon it ap- plied in reduction of the balance due, or whether he may only prove for the unpaid part with a corresponding reduction in- the amount of his dividend. The right of the surety to insist upon the entire claim being proved seems clear, for if under these circumstances the divi- dend is augmented so that together with what the surety ,has paid the sum exceeds the debt, the surplus would belong to the surety by the application of the doctrine of subrogation.^^ Again where two persons were co-sureties, and one having died the survivor paid the entire demand and presented a claim against the estate of the deceased oo-obligor for the full amount paid, it was contended by the estate that the claimant should not be permitted to prove against the estate of his co-surety for the whole debt, when his co-surety only owed him one-half of the debt, but it was. held that since each surety was bound in solido to their common creditor for the entire amoimt of the debt, that either surety paying would be subrogated to the claim of the creditor for the entire debt against the other, and that the survivor might assert the same claim against the estate of the decedent as the creditor himself could have done, and was entitled to receive dividends until reimbursed the full con- tributory share due him as co-surety.^* The National Bankruptcy Act of first surrendering a preference as re- 1898 provides in See. 57i, " When- quired by the Bankruptcy Act, that ever a creditor, whose claim against the surety or guarantor is subject a bankrupt estate is secured by the to the same condition and must also individual undertaking of any per- pay in the amount of such prefer- son, fails to prove such claim, such ence before he can be subrogated, person may do so in the creditor's In re Schmechel Cloak & Suit Co., name, and if he' discharge such un- 3 Nat. B. News. 110. dertaking in whole or in part he 53 In re Baxter & Ealston, 18 N. shall be subrogated to that extent to B. K. 497. the rights of the creditor." ,54Paee vs. Pace, 95 Va. 792; 30 It is held that where the creditor S. E. 361. could not prove his claim without See also Hess's Estate, 69 Pa. 272. 488 THE LAW OF SUIIETYSJIIP. It is held that where an insolvent dies, or his assets are admin- istered through insolvency proceedings, and a creditor holds col- lateral security for his deht, upon which he realizes less than the amount of the debt, that he may prove his entire claim against the estate of the decedent or insolvent, and make no ae- • count of the collateral until he is paid in fuU.^^ Such right in But see New Bedford Institution for Savings vs. Hathaway, 134 Mass. 69. 55 Chemical Bank vs. Armstrong, 59 Fed. Rep. 372. Taft, J.: " In Massachusetts (Amory v. Francis, 16 Mass. 309), in Iowa (Wurtz v. Hart, 13 Iowa 515), in South Carolina (Wheat v. Dingle, 32 S. C. 473, 11 S. E. 394), and in Washington (In re Traseh, 31 Pae. 755), it was held that the rule in equity is the same as the rule in bankruptcy, and that the se- cured creditor can prove only for the balance of his debt after the collat- eral shall have been applied. It was so held by Sir John Leach, master of the rolls, in Greenwood v. Taylor, 1 Buss. & M. 185. In Amory v. Francis, supra. Chief Justice Park- er repudiates the view that the se- cured creditor should be allowed to prove for his full claim, without de- diiction for collateral, on the ground that he ' would in fact have a great- er security than that pledge was in- tended to give him; for, originally, it would have been security only for a proportion of the debt equal to its value; when, by proving the whole debt, and holding the pledge for the balance, it becomes security for as much more than its value as is the dividend which may be received on the whole debt.' With much defer- ence to the great jurist who ad- vanced this argument, we think that it quite incorrectly states the effect of the contract of pledge, which is that the collateral shall be security for the whole debt, and every part of it, and therefore is as applicable to any balance which remains after payments from other sources as to the original amount due. The viev/ of the supreme judicial court of Massachusetts was adopted into a statute which deprives the subse- quent cases in that state of much bearing upon the question before us. The other eases cited, and especially Greenwood v. Taylor, seem to rest on the rule in equity requiring a credit- or with two funds as security, one of which he shares with others, to exhaust his sole security first. As already said, the rule has no appli- cation when its operation would pre- vent the creditor from paying his whole claim. " The great weight of authority in England and this country is strong- ly opposed to the view that a credit- or with collateral shall be thereby deprived of the right to prov.e for his full claim against an insolvent es- tate. Greenwood v. Taylor was questioned by Lord Cottenham in Mason v. Bogg, 2 Mylne & C. 443, 448, and was expressly repudiated as authority in the court of chancery appeals in Kellock's Case, 3 Ch. App. 769, — a case which, upon this point, is cited with approval in Lewis v. U. S., 92 U. S. 618. In this country, the Massachusetts doctrine was dis- sented from by the Supreme Court of EIGHTS AND EEMEMES. 489 the creditor carries a corresponding right to a surety in the application of the doctrine of subrogation. §270. Subrogation among co-sureties. No one of several sureties for the same debt is entitled to any advantage over his co-sureties in the application of the property of the principal for their indemnity, and the principal has not the right to apply his assets to the security of one in preference to another. If the principal has executed a mortgage to one co-surety, or deposited collateral with him, or in any other way secured him out of his own property, and another co-surety pays the debt, he is entitled to subrogation to the benefit of such security as in- demnity against the common burden. °° A surety who has indemnity out of the property of the princi- pal, is, to the extent of such security, a tnastee for his co-surety. The taking of such indemnity from the prineijyal lessens his New Hampshire in the early case of to all the foregoing authorities, arid Moses V. Eanlet, 2 N. H. 488. Other which they all sustain, is that a, eases which fully support the views creditor who has proved his claim we have expressed are: People v. against an insolvent estate under ad- E. Remington & Sons, 121 N. Y. ministration can collect his divi- 336, 24 N. E. 793; In re Bates, 118 dends without any deduction from 111. 524; 9 N. E. 257; Findlay v. his claim as proven for collections Hosmer, 2 Conn. 350; Logan v. An- made from collateral after his proof derson, 18 B. Mou. 114; Bank v. of claim is filed." Patterson, 78 Ky. 291 ; Brown v. 56 Lidderdale vs. Robinson, 2 Bank, 79 N. C. 244; Kellogg v. Mil- Brock. 159; Shaeflfer vs. Clendenin, ler, 22 Or. 406, 30 Pac. 229; Miller's 100 Pa. 565; Nally vs. Long, 56 Md. Estate, 82 Pa. St. 113; Graeff's Ap- 567; Fishback vs. Weaver, 34 Ark. peal, 79 Pa. St. 146 ; Patten's 569 ; Hartwell vs. Whitman, 36 Ala. Appeal, 45 Pa. St. 151; Miller's Ap- 712; Scribner vs. Adams, 73 Me. peal, 35 Pa. St. 481 ; Allen v. Daniel- 541 ; Fuller vs. Hapgood, 39 Vt. 617 ; son, 15 R. I. 480, 8 Atl. 705 ; Bank Reinhart vs. Johnson, 62 Iowa 155 ; V. Haug, 82 Mich. 607, 47 N. W. 33 ; 17 N. W. 452 ; Neely vs. Bee, 32 W, West V. Bank, 19 Vt. 403. Com- Va. 519; 9 S. E. 898. pare, also, Kortlander v. Elston, 2 See also German Amer. Savings 0. C. A. 657, 52 Fed. 180; Bank Bank vs. Fritz, 68 Wis. 390; 32 N- Cases, 92 Tenn. 437, 21 S. W. 1070. W. 123. " The exact point which is common 490 THE LAW OF SURETYSHIP. ability to pay, and it would be a fraud upon his co-sureties to permit bim to convert it to his sole use.'' If the indemnity comes from a third person, as where' the wife of the principal executes an indemnity mortgage on her separate property to one surety, the rule does, n^ot apply, and such indemnity need not be shared with the other sureties.^* §271. Subrogation between successive sureties. Successive sureties for the same principal are sometimes co- sureties, but more often one or more are sureties for the others. An example of the former is where a public officer is required to give additional bond during bis term of office, such last bond being cumulative establishes the relation of co-sureties between the successive promisors.'* The execution of a suretyship obligation in the course of a legal proceeding for the collection of a debt for which another is already bound as a surety, or where bonds are given in the pros- ecution of legal remedies in the Appellate Courts in which successive undertakings are required, generally results in plac- ing the ultimate liability upon the last surety, through whose agency the litigation has been prolonged, and while as between such surety and the creditor he may be properly termed a surety for the prior promisor, yet if his contract is solely in the interest of the principal, and without the assent of the prior surety, he is regarded as debtor of all the prior parties, and not entitled to subrogation to the remedies of the creditor against the prior sureties ; but on the contrary if the prior surety pays he will recover by subrogation from the later surety. " Carpenter vs. Kelly, 9 O. 106. in their management. He may not Lane, G. J. : " A surety is not abandon them without cause, nor bound by law to seek indemnity; negligently omit the steps necessary yet if the means of indemnity are to render them available." placed in his hands, and he under- See also Sanders vs. Weelburg, takes to retain them, he becomes a lOTInd. 266; 7 N. E. 593; Owen vs. trustee for his co-sureties, because McGehee, 61 Ala. 440. they inure to their common benefit, ssLeggett vs. McClelland, 39 0. and he is bound by the obligations S. 624. which attach to a trustee to use hon- b9 Ante Sec. 175. esty, good faith, and due discretion. EIGHTS AND EEMEBIES. 491 It is said, " We know of no case in which, on the ground either of contribution among co-sureties or of substitution to the securities of the creditor, a subsequent surety coming in aid of the debtor alone, without the request or concurrence of the origi- nal sureties, and in the regular course of the remedy for coercing the debt from him alone, or for the purpose of obstructing its collection by his own separate proceeding and for his own bene- fit, has obtained in equity either partial or full reimbursement from the prior sureties. The doctrine established by the ad- judged cases, and as we think, in conformity with the true prin- ciples of equity, is that, if under such circumstances, the prior surety is compelled to pay the debts, he thereby becomes entitled by substitution to the rights of the creditor against the subse- quent surety to the whole extent of the payment made and of the obligation of the subsequent surety; which precludes all right on the part of the subsequent surety, should the debt be coerced from him, to claim reimbursement from the prior surety." "'' This rule is usually put upon the ground that the successive surety by prolonging the litigation makes himself an obstacle to the prior promisor by preventing an adjustment of the con- troversy, wherein the prior surety might have had immediate subrogation to the rights of the creditor against the principal, and this conclusion seems to be reached without requiring any showing that the prior surety has in fact been injured."^ "K Brandenburg vs. Flynn, 12 B. first suretyship was that of a Mon. (Ky.) 397. guaranty upon a lease, and the «iAute Sec. 263. second was an appeal from a Fitzpatrick's Admr. vs. Hill, 9 judgment against the lessee for Ala. 783; Dent vs. Wait, 9 W. Va. rent. The Court applies the rule 41; Kellar vs. Williams, 10 Bush and urges two grounds, first, that of (Ky.) 217; Winchester vs. Beardin, a possible injury to the guarantor 10 Humph. (Tenn.) 247; Moore vs. by reason of the stay of execution, Lassiter, 16 Lea (Tenn.) 630; Pier- and second, a somewhat novel and son vs. Catlin, 18 Vt. 77; Fletcher exceedingly doubtful ground that the vs. Menken, 37 Ark. 206 ; McCor- last surety is a " volunteer " and so mick vs. Irwin, 35 T:. 111. not entitled to subrogation. Opp vs. Ward, 125 Ind. 241 ; Mitchell, J. . " The application of 24 N. E. 974. In this case the the doctrine of subrogation requires 492 THE L-AW OF SUEETYSHIP. There would seem to be some equity in treating successive sureties as co-sureties in all eases where the prolongation of the litigation in good faith results in no loss to the prior surety. ( 1 ) that a person must have paid a debt due to a third person, for the payment of which another was in equity primarily liable; and (2) lliat in paying the debt the person paying acted under the compulsion of saving himself from loss, and not as a mere volunteer. . . . It is insisted, howevei', that in the case of successive sureties, who become bound by separate obligations for the payment of the same debt, the equity of the last surety is superior to that of the first, and that as the liabil- ity of the plaintiff below, as guar- antor, was prior in point of time to that of the appellant as surety on the appeal bond, both being bound for the same debt, the equity of the latter was at least equal, if not su- perior, to that of the former. This view is not maintainable in a ease like the one under consideration. It is quite true the plaintiff below be- came liable, as guarantor, for the payment of all rent, as well as for all damages growing out of the un- lawful detention of the property of the tenant. But it is also true that his liability, which was theretofore uncertain and c'ontingent, became certain and fixed when the landlord recovered judgment for the posses- sion of the leased premises, and for damages for their unlawful de- tention. The guarantor had the right to pay the amount of the judg- ment recovered against his principal, and thus put an end to his liability at once. " By the voluntary intervention of the appellant, in becoming surety in the appeal bond, all further proceed- ings on the judgment by which the landlord was awarded the right of immediate possession, were stayed, and the hands of the guarantor were effectually tied until the appeal was disposed of. . . . Upon the de- termination of the appeal, the land- lord had his election to sue on the appeal bond and recover the rental value of the premises unlawfully de- tained, or to proceed against the guarantor on the lease. He adopt- ed the latter alternative. If he had sued on the appeal bond and recov- ered judgment against the surety, it is quite certain that the latter would have had no standing in a court of equity to recover from the guaran- tor. This is so because he occupies the position of a volunteer, and as is pertinently said in Acer vs. Hotch- kiss, supra [97 N. Y. 395] : ' One who is only a volunteer cannot in- voke the aid of subrogation, for such person can establish no equity.' Gans vs. Thieme, 93 N. Y. 225. Having intervened as a volunteel and by his interposition stayed pro- ceedings on the judgment for pos- fression to the prejudice of the guar- antor, whose liability had become fixed and at an end, so far as re- spects future rents, it must be con- sidered in equity that he did so upon the condition that he would take the place of the guarantor from that time forward." The surety on the appeal bond in this case was not a " volunteer " and the doctrine of the New York cases cited lias no application to the facts of this case. An earlier case in Indiana seems KIGHTS AND REMEDIES. 493 Without the intervention of the later surety, the earlier prom- isor might be required to pay and suffer great loss and there is no equity under these circumstances in granting his exoneration opposed to the view stated in the case last cited. Kane vs. The State ex rel. Woods, 78 Ind. 103. In this case a license bond was given by one engaged in selling in- toxicating liquors, conditioned to pay any judgment that might be entered for fines assessed against the principal for violation of the act regulating the sale of liquor. A judgment was rendered upon which stay of execution was allowed by the giving of a bond as provided by law; the sureties upon the stay bond be- ing required to pay, bring action against the sureties of the license bond, claiming subrogation to the position of the state on that bond, and it was held, " The appellee's relator having become, in due course of law and at the request of said Colling, his replevin bail for the pay- ment of the judgments rendered for said fines and costs, and having been compelled to pay and having paid, as such replevin bail, the said several judgments for said fines and costs, we know of no possible reason why the relator should not be permitted to avail himself of the equitable doc- trine of subrogation, and should not be subrogated to all the rights of the State of Indiana, the judgment creditor, in the bond primarily given by the said Collins to secure the pay- ment of all fines and costs that might be assessed against him." It would seem that in Virginia neither one of successive sureties is entitled to subrogation against the other. That the last cannot recover from the first was held in Sherman's Admr. vs. Shaver, 75 Va. 1, where, although not strictly necessary to the decision of the case, it was said, " If an execution, against principal and surety be levied on property of the principal, and a third person, at the request of the principal but without the consent or concurrence of the surety, intervene and bind himself as surety in a bond for the forthcoming of the property on the day of sale and the bond be forfeit- ed, although such third person thus becomes bound as surety for the debt, yet he is not entitled on making pay- ment to be substituted for contribu- tion to the original judgment against the original surety, because by his intromission the property of the principal has been withdrawn from the levy and restored to the debtor instead of being applied, as it otherwise would have been, to the payment of the debt, and thereby the original surety has been injured, and the second surety whose interven- tion has caused the injury has no equity to substitution for indemnity or contribution against the first. The same principle applies to sure- ties on appeal bonds, bail bonds, in- junction bonds, stay bonds, prison- bounds bonds and the like obliga- tions." It appears also to be the rule in Virginia that the earlier bond cannot be subrogated to the subse- quent bonds. Rosenbaum vs. Goodman, 78 Va. 121. In this case a replevin bond was executed and judgment was ren- dered against the plaintiff who ap- pealed with new sureties to the Unit- ed States Circuit Court of Appeals, and judgment being aifirmed, again 494 THE LAW OF SDEETYSHIP. merely because the right to require payment of the first surely is deferred, especially since a re-hearing in an Appellate Court might result in his complete exoneration. The equity suggested has been recognized in cases where the first surety consents to the stay of execution."^ appealed to the United States Su- preme Court. Recovery having been had against the original sureties on the replevin bond it was held that those sureties were not subrogated to the rights of the creditor against the subsequent sureties on appeal. «2Hartwell vs. Smith, 15 O. S. 200. In this case a bond was given to discharge attachment, and judg- ment being rendered in favor of the attaching plaintiff, error was pros- ecuted on the judgment with addi- tional surety, the first surety con- senting. Scott, J. . " In regard to this question of superiority of equities, which is liable to arise in the case of prior and subsequent bonds, exe- cuted by different sureties, for dis- tinct purposes, and both constituting securities in the hands of the credit- or for the same debt, it is well set- tled that if the interposition of the second surety, is for the benefit of the principal alone, without the sanction or assent of the first surety, who may be prejudiced thereby; as when the effect of the second bond is to prevent the enforcement of pres- ent payment from the principal, and thus to prolong the responsibility of the first surety; in such a case the equity of the first surety is superior, and he is entitled to be subrogated to the rights of the creditor as aijainst the second. And this doc- trine seems to be entirely equitable, for it is but rpasonable that the ben- efit intended for the principal alone, by the second surety, should be con- ferred, if at all, at his own risk, and not at the risk or to the prejudice of other parties whose wishes were not consulted in the transaction. " But the rule is otherwise, where the surety in the second bond be- comes bound for a purpose in which both the principal and the prior surety concur, in which they both have an interest, and where the as- sent of the prior surety is express- ly given, or is clearly to be inferred from the circumstances of the case. In such a case the last surety has a right to look for his indemnity, not only to his principal, but to such fixed securities as had been given to the creditor, when his engagement was entered into, and in the faith of which he may be presumed to have incurred his obligation. ... By the execution of the first bond. Smith procured for his principal the discharge of the order of attach- ment. The creditor was thus pre- vented from securing his claim by a levy upon his debtor's property; the bond of Smith being substituted for such security. By the subsequent judgment against the debtor this se- curity became fixed. It was for the interest of Smith, as well as for that of his principal that this judgment should be reversed." See also Monson vs. Drakely, 40 Conn. 552. BIGHTS AND REMEDIES. 495 §272. Subrogation in favor of the creditor to securities held by the surety. If the surety holds property of the principal, or has a lien upon the property of the principal as his indemnity against loss by reason of his suretyship, the creditor may resort to such property or lien and subject it to the payment of his debt. This form of subrogation is available to the creditor without any previous agreement giving to the creditor this» benefit, and, as in the case of subrogation by a surety, it rests upon the con- sideration that any property of the principal that has been specifically charged with the payment of a debt, ought not to be used in any other way until that purpose has been accom- plished."' The creditor will be subrogated notwithstanding the surety is discharged by reason of some act of the creditor, or by the oper- ation of the Statute of Limitations."* oaCfurtis vs. Tyler, 9 Paige 432; Owens vs. Miller, 29 Md. 144; Bar- ton vs. Croydon, 63 N. H. 417 ; Loehr vs. Colborn, 92 Ind. 24; Seibert vs. True, 8 Kas. 52; Pendery vs. Allen, 50 0. S. 120; 38 2Sr. E. 24; Coons vs. Clifford, 58 O. S. 480; 51 N. E. 39; Union Nat. Bank vs. Rich, 106 Mich. 319; 64 N. W. 339; First Nat. Bank vs. Wheeler, 12 Tex. Civ. App. 489; 33 S. W. 1093; New London Bank vs. Lee, 11 Conn. 112; Stearns vs. Bates, 46 Conn. 306; Alabama Ins. Co. vs. Anderson, 67 Ala. 425; Saf- fold vs. Wade, 51 Ala. 214; Cooper -vs. Middleton, 94 N. C. 86; Pratt vs. Thornton, 28 Me. 355; Steward vs. Welch, 84 Me. 308; 24 Atl. 860; Price vs. Trusdell, 28 N. J. Eq. 200; Demott vs. Stockton, 32 N. Y. Eq. 124; Tompkins vs. Catawba Mills, 82 Fed. Rep. 780; Kelly vs. Herrick, 131 Mass. 373; Mifflin's Appeal, 98 Pa. 150. Vail vs. Foster, 4 N. Y. 312. "■it is a settled rule in equity, that the creditor shall have the benefit of any counter bonds or collateral se- curities which the principal debtor has given to the surety, or person standing in the situation of a sure- ty, for his indemnity. Such securi- ties are regarded as trusts for the better security of the debt, and chancery will compel the execution of the trusts for the benefit of the creditor." See also Nat. Bank vs. Bigler, 83 N. Y. 51. 8* Helm's Admr. vs. Young, 9 B. Mon. (Ky.) 394; Eastman vs. Fos- ter, 8 Met. 19; Cowan vs. Telford, 5 Lea ( Tenn. ) 449 ; Long vs. Mil- ler, 93 N. C. 227 ; In Jack vs. Mor- rison, 48 Pa. 113, the surety was not liable because his promise was verbal and so void under the stat- ute of frauds, but it was held that the creditor was subrogated never- theless to the securities deposited with the surety for his indemnity. 496 THE LAW OF SUEKTYSHIP. Where the principal executes a mortgage to the surety, which is of- record, the creditor's rights, as against subsequent incum- brances, Avill attach as of the date of the mortgage."^ And if the surety himself becomes the purchaser of the land upon which his indemnity mortgage rests, it will not operate as a merger of the mortgage as against the creditor."' A conveyance of land encumbered by an indemnity mortgage to a bona fide purchaser without notice actual or constructive will defeat the trust in favor of the creditor.®^ It is held that where the surety holds a mortgage to indemnify him in his suretyship and also to secure a debt owing him by the principal, that the creditor will have priority in the proceeds of the mortgage, on the ground that as trustee of the property of the principal, the surety can not under the ordinary rule of trusts, derive any benefit from the transaction until the trust is fully executed."* osljames vs. Gaither, 93 N. C. 358; Carlisle vs. Wilkins, 51 Ala. 371. In Grant vs. Ludlow, 8 0. S. 1, an agent L. was intrusted with the duty of taking security for the advance- ments of his principals G. & S. to a customer, and for that purpose took a mortgage which he afterwards can- celled without liis principals' con- sent; thereafter he executed a writ- ten guaranty to his principals in satisfaction of the claims against him for his misconduct as agent in releasing the securities, and the cus- tomer executed a mortgage to the agent as indemnity. Other creditors of the customer took mortgages at a later date and upon foreclosure, pri- ority was claimed for the indemnity mortgage on behalf of the principals in tho agency; it was held, Brinlc- erhoff, J. (21) : "Now, it is a fa- miliar principle of equity jurispru- dence, that where a surety, or person standing in the situation of a surety for the payment of a debt, receives a security for his indemnity, the prin- cipal creditor is, in equity, entitled to the full benefit of that security. It follows from this principle, and the state of facts we have found, that, had there been no assignment of the mortgage of indemnity from L. to G. & S., and had G. & S. fixed the liability of L. by action and judgment at law, G. & S. might then come into a court of equity as com- plainants and make L.'s mortgage of indemnity perfectly available to themselves." See also Kuukel vs. Fitzhugh, 22 Md. 567. o« Durham vs. Craig, 79 Ind. 117. 07 Carpenter vs. Bowen, 42 Miss. 28. But see Jones vs. Quinnipiack Bank, 29 Conn. 25. 68 Ten Eyck vs. Holmes, 3 Sandf. Ch. 428. But see Helm's Admr. vs. Young, B. Mon. (Ky.) 394. EIGHTS AND EEMEDIES. 497 Where the indemnity is furnished by a stranger, and does not come out of the property of the principal, it does not create a trust in favor of the creditor."'* Nor where it is furnished by one surety to another. The distinction between indemnity furnished by the debtor and indemnity from a stranger or co-surety, is stated with clear- ness by Mr. Justice Matthews of the Federal Supreme Court: "When a debtor, who has given personal guaranties for the performance of his obligation, has further secured it by a pledge in the hands of his creditor, or an indemnity in those of his surety, it is conformable to the presumed intent of all the parties to the arrangement, that the fund so appropriated shall be administered as a trust for all the purposes, which a pay- ment of a debt will accomplish; and a court of equity will ac- cordingly give it this effect. All this, it is to be observed, as the rule verbally requires, presupposes that the fund specifically pledged and sought to be primarily applied, is the property of the debtor, primarily liable for the payment of the debt ; and it is because it is so, that equity impresses upon the trust, which requires that it shall be appropriated to the satisfaction of the creditor, the exoneration of the surety, and the discharge of the debtor It follows that the present case cannot be brought within either the terms or the reason of the rule, for, as the property, in respect to which the creditors assert a lien, was not the property of the principal debtor, and has never been expressly pledged to payment of the debt, so no equitable con- struction can convert it by implication into a security for the creditor." '" 69 Taylor vs. Farmers' Bank of and by whomsoever given. But this Ky., 87 Ky. 398; 9 S. W. 240; Mack- suggestion is founded upon a mia- lin vs. Northern Bank of Ky., 83 conception of the scope of the rule Ky. 314. and the rational grounds on which it "> Hampton vs. Phipps, 108 U. S. is established. Of course, if an e ■;- 260; 2 S. Ct. 622. Continuing, the press trust is created, no matter by Court says : " It is urged that the whom, rior of what, for the payment logic of the rule would extend it so of the debt, equity will enforce it, as to cover the case of all securi- according to its terms, for the bene- ties held by sureties for purposes of fit of the creditor, a* n cestui que indemnity of whatsoever character trust : but the question concerns the 498 THE I.AW OF SUEETYSI-IIP. In Mississippi a distinction is made between a security given for the indemnity of the surety, and a security which the surety holds for the payment of the debt.. In the one case it is con- sidered that it is available to the surety only in case he pays the debt, and hence not available to the creditor at all, since if the surety becomes insolvent and does not pay, the contingency upon which the surety might resort to the security never arises and therefore no subrogation arises to the creditor.^^ But if the col- lateral is held upon condition that it shall be applied to the pay- ment of the debt, it may be enforceable by the creditor.''^ An indorsee of a promissory note is subrogated to the securi- ties held by his indorser, whether the securities are transferred to him or not '^ and a cancellation of the lien of a mortgage held by the indorser will not destroy the lien of the indorsee/* creation of a trust, by operation of law, in favor of a creditor, in a case where there was no duty owing to him, and no intention of bounty. A stranger might well choose to bestow upon a surety a benefit and a prefer- ence, from considerations purely per- sonal, in ordei- to make good to him exclusively any loss to which he inight be subjected in consequence of his suretyship for another. In such a, case, neither co-surety nor creditor could, upon any ground of priority in interest, claim to share in the benefit of such a benevolence." 71 Pool vs. Doster. 59 Miss. 258; Clay vs. Freeman, 74 Miss. 816; 20 South. 871. 72 Boss vs. Wilson, 7 S. & M. (Miss.) 753; Carpenter vs. Bowen, 42 Miss. 28. The distinction between indemnity to the surety and a security avail- able in terms for the creditor is not generally recognized. Meyers vs. Campbell, 59 N. J L. 378 ; 35 Atl. 788. "■'■ Harmon}' Nat. Bank's A])peal, 101 Pa. 428; Kelley vs. Whitney, 45 Wis. 110; Potter vs. Stevens, 40 Mo. 229 ; Merchant's Nat. Bank vs. Aber- nathy, 32 Mo. App. 211; Updegraft vs. Edwards, 45 Iowa 513; Boyd vs. Parker, 43 Md. 183. 7* McCracken vs. German Fire Ins. Co., 43 Md. 471. " The complainant, as the holder of the note, and consequently of the debt secured by the mortgage, is, in equity, to be considered the real mortgagee, or as substituted to all the rights of indemnity secured by the mortgage upon the property. The mortgage, in truth and fairness, could not be discharged or released by the association under such cir- cumstances, without the consent of the complainant, or payment of the note, more especially as the Com- pany was not able to pay its debts at the time. Before the association undertook to release the mortgage they should have taken care, in good faith, to have seen that the note of the complainant was paid. His debt not being paid, and the Com- pany insolvent, ho had the right to resort to the indemnity furnished by EIGHTS AND HEMEDIES. 499 It is held that since the indorsee is subrogated only by con- siderations of equity tliat he will take the security subject to all the prior equities whetlier the transfer is before or after the maturity of the note.'^ §273. Same subject . — The view of the English courts. While the doctrine that a creditor is subrogated to the securi- ties of the surety originated with the English courts of equity,'" the application of the rule has undergone some modification in England. Where both the acceptor and drawer of bills were in bank- ruptcy and the acceptor had been given security by the drawer, and the holders of the bills were claiming subrogation to the security, it was held by Lord Eldon that the holders had no equity of subrogation running to them. In this case the order was made permitting the proceeds of the collateral to be applied to the bills, but this was based upon the fact that both parties were in bankruptcy and that such ap- plication was in the right of the bankrupts, and not because of any equity due the creditor. The Lord Chancellor said, " It will be sufficient for me to say, that supposing a commission not to have issued, I do not see anything in this transaction, between persons thus dealing with their bankers, and making a deposit of this sort, which would entitle the creditors to say that they have an equity attaching on these effects ; that is to say, that the mortgage. The release of the bonds or collateral security given by mortgage by the association, as his the principal to the surety; as if A. trustee, without the payment of his owes B. money, and he and C. are debt, was a breach of trust, totally bound for it, and A. gives C. a niort- unauthorized, and did not destroy gage or bond to indemnify him. B. his lien on the property." shall have the benefit of it to recover '5 Petillon vs. Noble, 73 111. 567 ; his debt." Melendy vs. Keen, 89 111. 395; U. See also Wright vs. Morley, 11 S. Mortgage Co. vs. Gross, 93 111. Ves. 22. " I conceive, that, as the 483. creditor is entitled to the benefit of '6 Maure vs. Harrison, 1 Eq. Cases, all the securities the principal debt- Abridgment 93, placitum 5 (1692). or has given to his surety, the surety The opinion in full appears to be: has full as good an equity to the ' A bond creditor shall, in this benefit of all the securities the prin- Court, have the benefit of all counter cipal gives to that creditor." 500 THE LAW OF SUEETYSIIIP. the moment a pledge is put into the hands of the banker, he becomes a surety for them to whom his acceptances are deliv- ered. If there were such an equity, the consequence must be, that the banker and the person whose depositary he is could come to no new arrangement without the consent of the creditors. It is enough for me to say, that the petition can not be supported upon this ground." '^ The subject of the right of bill holders to be subrogated to securities in the hands of the acceptor, where both drawer and acceptor are in bankruptcy, has arisen in a more recent case and the equity of the order of Lord Eldon questioned, and it was considered that the holders were not entitled to subrogation to the securities in the hands of the acceptor, and that the holders were not even entitled to have the securities applied on their claim in the adjustment of the bankruptcy affairs in the manner provided in the order of Lord Eldon, but that the baiikrupt ac- ceptor was entitled to use the security in paying the dividends due the holders, and was not required to apply the security in reduction of the bills and then respond in dividends for the balance.'' '■f Ex parte Waring et al., 2 Glyn a dividend of 5s. in the pound, the Si, Jameson 404 (1815). dividends would be taken eare of in See also Powlps vs. Hargreaves, 3 full by the securities without any De Gr. M. & Gc. 430; City Bank vs. deduction from the bankrupt's es- Luckie, 5 Ch. App. 773; Vaughan tate. But if the securities were vs. Halliday, 9 Ch. App. 561. first applied to the claim, thus leav- es Royal Bank vs. Commercial ing unpaid £12,000 the holders Bank, L. R., 7 App. Cases 366 would be entitled to receive out of (1882). In this case the Royal the bankrupt's estate £3,000 addi- Bank held acceptances amounting to tional as their dividend. It was £16,000 and the acceptor held secur- considered that the subrogation ities of the drawer amounting to asked for would violate the contract about £4,000, and the question was between the drawer and acceptor whether the estate of the bankrupt and that the latter was entitled to acceptor should use the securities have the securities applied in suclx in paying the dividend due the a way as would give him the largest holders, or whether the holders were indemnity. entitled to have the security applied See also In re Walker, L. R., 1 Ch. in reduction of their claim and have 621 ( 1892), wherein the early case of their dividend for the balance. In Maure vs. Harrison, ubi supra, is other words, if the estate should pay examined and the conclusion reached EIGHTS AND EEMEDIES. 501 §274, Eemedies of the surety in cases where he is deprived of subrogation by act of the creditor. The creditor owes a duty of good faith toward the surety, if he releases in whole or in part any security belonging to the principal which he holds for the account of the debt, to that ex- tent the surety will be discharged.'" If the creditor fails to do that which is necessary in order to make the security available, the surety will be discharged, as where he neglects to file a mortgage for record and other liens intervene rendering the security of no value,*" or releases a levy of execution which had been placed upon the property of the principal.*^ If the creditor has. a judgment for the debt which is a lien upon the land of the principal and cancels it, he thereby de- prives the surety of his subrogation and accordingly discharges him from liability to the extent of the value of the land.*^ The fact that the creditor has in his possession property of the principal, does not of itself entitle the surety to be subro- gated, but the surety can claim such equity only in cases where the deposit or the lien arose out of the same transaction as the suretyship. Where a bank is creditor and the principal is a depositor, the relation between the bank and the depositor being merely that of debtor and creditor does not give to the bank any lien on the deposit as security for loans made to the depositor, and that the ease was erroneously re- 428 ; Teaff vs. Ross, i O. S. 469 ; Burr ported and the Court concludes: vs. Beyer, 2 Neb. 265; Capel vs. " Under these circumstances it Butler, 2 Sim. & Stu. 457 ; Wulff vs. seems to me that there is no real Jay, L. K., 7 Q. B. 756. authority for the proposition in si Hutton vs. Campbell, 10 Lea question; and upon principle, I can- (Tenn.) 170; Mulford vs. Estudillo, not see why a surety who takes 23 Cal. 94; Spangler vs. Sheffer, 69 from the principal debtor a bond Pa. 255; Winston vs. Yeargin, 50 or indemnity at once becomes a Ala. 340. trustee of that for the principal 82 Robeson vs. Roberts, 20 Ind. creditor." 155; HoUingsworth vs. Tanner, 44 '9 Ante Sec. 98, 99. Ga. 11. 80 Toomer vs. Diekerson, 37 Ga. 502 THE LAW OF SUEETYSHIP. if a surety pays the bank such loan, he will not be subrogated to the deposit, and the bank violates no duty to the surety in pay- ing the checks of a depositor even after default.*' If a surety pays the debt without knowledge that the creditor has released securities or property of the principal or done some act in reference thereto which renders such security unavail- able, he may maintain an action against the creditor to recover back what he has paid, at least to the extent of the loss resulting from his failure to realize on his expected subrogation.** §275. When surety will be subrogated to the principal's claims of set-off against the creditor. The practical difficulties involved in the application of equi- table set-off or counterclaim as a defense to a promisor in sure- tyship, where the set-off is claimed in the right of the principal, have been considered in a previous chapter.*^ The equity of subrogation must give way to the legal rights of the other parties to the transaction, and where the claim to be set off exceeds the debt for which demand is made of the surety, and the principal is not a party to the suit against the surely, the promisor can not be subrogated to the cross demands of the principal. To hold otherwise would deprive the principal of the balance of his claim against the creditor, as his claim could not be divided, and a large cross-demand might thus be used to settle a small claim. But where the principal and surety are both parties to the action, the right of subrogation to the set-ofi is fully established.*® 83 Nat. Bank of Newburgh vs. But see HoUister vs. Davis, 54 Pa. Smith, 66 N. Y. 271; Voss vs. Ger- 508. man Bank, 83 111. 599; Grissom vs. Bechervaise vs. Lewis, L. R., 7 C. Commercial Bank, 87 Tenn. 350; P. 372. Where an unliquidated de- 10 S. W.. 774. mand due the principal by the cred- 8* Chester vs. Kingston Bank, 16i itor resulting from a failure of con- N. Y. 336. ■^ sideration for the promissory note 85 Ante Sec. 117. of the principal was permitted to be 88 Springer vs. Dwyer, 50 N. Y. set off in an action against the 19; Bathgate vs. Haskin, 59 N. Y. surety upon the note. 533; Harris vs. Rivers, 53 Ind. 216. Where the principal is insolvent. See also Cases Cited Ante Sec. an unliquidated demand for breach 117. of contract in favor of the principal EIGHTS AXD EEMEDIES. 503 §276. Subrogation not available to one who pays the debt of another as a mere volunteer. Those who are in the situation of a surety, in the sense that they pay the debt of another, but who are under no obligation to pay such debt, and who do not, by paying, preserve and pro- tect some interest in their own property, are mere volunteers and not within the equity of subrogation. The rule has been thus stated: " The doctrine of subroga- tion is a pure unmixed equity and from its very nature, never could have been intended for the relief of those who were in a condition in which they were at liberty to elect whether they would or would not be bound, and as far as I have been able to learn its history, it never has been so applied. It has been directed in its application exclusively to the relief of those that were already bound, who could not but choose to abide the pen- alty. I have seen no case, in which a stranger, who was in a condition to make terms for himself, and demand any security he might require, has been protected by the principle." *^ against the creditor is generally per- Smith vsl Austin, 9 Mich. 465 ; mitted to be set off by the surety. Desot vs. Ross, 95 Mich. 81; 54 N. Hiner vs. Newton, 30 Wis. 640; W. 694; St. Francis Mill vs. Sugg, McDonald Mfg. Co. vs. Moran, 52 83 Mo. 476; Price vs. Courtney, 87 Wis. 203; 8 N. W. 864. Mo. 387; Buun vs. Lindsay, 95 Mo. Where the amount claimed by 250 ; 7 S. W. 473 ; Cole vs. Malcolm, way of set-off is less than the 66 N. Y. 363; Wormer vs. Waterloo amount involved in the suretyship. Agricultural Works, 62 Towa 699; the set-off in favor of the surety 14 N. W. 331; Rheeling's Appeal, may be allowed without any inter- 107 Pa. 161; Watson vs. Wilcox, ference wilh the right of the princi- 39 Wis. 643; McNeil vs. Miller, 20 pal. Murphy vs. Glass, L. R., 2 P. W. Va. 480; 2 S. B. 335; ^tna Life C. 408; Cole vs. Justice, 8 Ala. 793. Ins. Co. vs. Middleport, 124 U. S. 8' Gadsden vs. Brown, Speer's Eq. 534 ; 8 S. Ct. 625. (S. C.) 37. But see Gans vs. Thieme, 93 N. Y. See also Moran vs. Abbey, 63 Cal. 225. Where subrogation was upheld 56; Young vs. Morgan, 89 111. 199; in favor of one who paid off an in- McClure vs. Andrews, 68 Ind. 97 ; cumbranee at the request of an Binford vs. Adams, 104 Ind. 41; 3 executrix of the owner for the pres- N. E. 753; Roth vs. Harkson, 18 ervation of the property in the in- La. Ann. 705; Brice vs. Watkins, terest of the estate. The doctrine 30 La. Ann. 21 ; Commonwealth vs. of this case carries the rule of sub- Ches. & 0. Canal Co., 32 Md. 501 ; rogation to the extreme point of 504 THE LAW OF SUEETYSHIP. It is not always easy to determine whether or not the pay- ment is by one in the situation of a surety. If a debt is paid by one who in good faith supposes himself to be a surety and bound for it, but who in fact was not liable, he is a mere volunteer and not entitled to subrogation. Thus a name was signed as surety upon the bond of a sheriff, by one who was acting as agent for the surety, the surety was advised that the bond so signed by his agent was valid and bind- ing upon him and he paid the penalty of the bond upon default of the sheriff and claimed the benefits of subrogation. It was held that under the statute the signing by the agent did not make a binding contract in suretyship, because the authority to sign was not in writing, and that one paying the debt, of another under these circumstances was a mere volunteer and not en- titled to subrogation.** application in holding that a pay- ment by a, third person at the re- quest of a party having no personal interest in the security does not leave the party paying in the posi- tion of a mere volunteer. Danforth, J. : " It is no doubt true, however, as the learned coun- sel for the respondent argues, that a volunteer cannot acquire either an equitable lien or a right to subro- gation, but one who, at the request of another, advances his money to redeem or even to pay off a security in which that other has an interest, or to the discharge of which he is bound, is not of that character, and in the absence of an express agree- ment one would be implied, if necessary, that it shall subsist for his use, and it will be so enforced. But the doctrine of substitution may be applied although there is no con- tract, express or implied. It is said to rest ' on the basis of mere equity and benevolence ' and is resorted to for the purpose of doing justice be- tween the parties." See also Wilson vs. Brown, 13 N. J. Eq. 277. " To entitle a party who pays the debt of another to the rights of the creditor by subroga- tion, the debt must be paid at the instance of the debtor, or the person paying it must be liable, as security or otherwise, for its payment." It is held that a person under no obligations to pay, and having no interest of his own to protect, may be subrogated to the securities of the debtor, where the payment is at the request of the debtor and the rights of third parties have not in- tervened. This rule may be sup- ported on the ground of estoppel as the debtor should not be permitted to redeem his securities as against the one who pays his debt. Oury vs. Saunders, 77 Tex. 278; 13 S. W. 1030. 88 Dawson vs. Lee, 83 Ky. 49. But see Capehart vs. Mhoon, 5 Jones Eq. (N. C.) 178. EIGHTS AND HEMEDIES. 505 It is held that an agent who advances for the account of his principal is not a volunteer and will be entitled to subrogation/" If the obligation of the one in the situation of a surety is in- formal, and on that account not enforceable against him, but which creates a moral obligation to pay, it has been lield that payment by the one so bound will entitle him to subrogation."" One performing medical services to one who has a lien upon land for his care and support is considered to be entitled to sub- rogation to the position of the lien holder, although the service was performed without any special agreement for substitution.""^ SD Curry vs. Curry, 87 Ky. 667; 9 S. W. 831. 00 Slack vs. Kirk, 67 Pa. 380. niHuffmond vs. Bence, 128 Ind. 131; 27 N. E. 347. See also Price vs. Sanders, 60 Ind. 310. Where it is held that one who advances money in the purchase of necessaries for an infant is sub- rogated to the position of one who furnishes necessaries to an infant. But see Skinner vs. Tirrel, 159 Mass. 474; 34 N. E. 692. Where one advancing necessaries to a wife liv- ing apart from her husband was denied the right of subrogation to the rights of the wife against the husband. Morton, J. : " There can be no subrogation unless there is some- thing to be subrogated to. A debt or liability cannot be created where none existed for the purpose of ef- fecting a substitution. There never was any liability on the part of the defendant to the parties who fur- nished the wife with the necessaries. .... Although the right of sub- rogation does not depend on con- tract, but rests on natural justice and equity, there must be either an agreement, express or implied, to subrogate, or some obligation, in- tei-est, or right, legal or equitable. on the part of the party making the payment or advance in respect of the matter concerning which pay- ment is made or money advanced, in order to entitle him to subrogation. . So far as subrogation is con- cerned, the plaintiiT's contention re- solves itself into the proposition that the defendant's wife could have bought on her husband's credit the necessaries which she purchased and paid for with the money advanced to her by the plaintiff; that if the plaintiff had paid the parties sup- plying the necessaries their several demands, she would have been en- titled to be subrogated to their claims against the defendant; and that therefore u, decree should be entered in her favor against the de- fendant in this suit. If the prem- ises are correct, manifestly the con- clusion does not follow from them. There are ancient and modern cases in England which hold that a per- son advancing money to a married woman under circumstances like those in this case can recover the same of the husband in equity. Har- ris vs. Lee, 1 P. Wms. 482; Marlow vs. Pitfield, 1 P. Wms. 558; Deare vs. Soutten, L. R., 9 Eq. 151; Jen- ner vs. Morris, 3 DeG. F. & J. 45. See also In re Wood, 1 DeG. J. & 506 THE LAW OF SUEETYSllIP. §277. Conventional subrogation. Conventional subrogation is the substitution of the surety in place of the creditor by agreement as distinguished from sub- rogation by operation of law where no such agreement is made. The convention or agreement for subrogation frequently ex- tends to the surety advantages which the law itself does not be- stow, thus a mortgagee in consideration of a payment of less than the full amount of the debt may assign the mortgage secur- ity to the party paying, and such assignment subrogates the pur- chaser to all the rights of a mortgagee and to the full amount of the debt; or a creditor, in consideration of receiving pay- ment before it is due may transfer the debt to the surety, who is thus substituted to the position of the creditor and entitled to collect the full amount from the debtor, and, if such is the agreement, is entitled to an assignment of the debtor's collateral on the same terms. The opportunity for speculation in the amount of recovery against the debtor is not afforded by the equity of subrogation which arises by operation of law. Again, equitable subrogation cannot be enforced until the entire debt is paid,"' but conventional subrogation arises at such time and for such part of the debt as the parties in their agreement shall stipulate. Where a mortgagee receiving payment from a junior incum- brancer of the first installment of the debt as it matured, agreed that the party paying the note should hold it as a subsisting lien in the same right as the mortgagee, it was considered that S. 465. These cases have been fol- as to bind the husband, yet this lowed in this country in Connecti- money being applied to the use of cut (Kenyon vs. Farris, 47 Conn. the v^ife for her use and for neces- 510), and there is a. dictum in a, saries, the plaintiff that lent this case in Pennsylvania, Walker vs. money, must in equity stand in the Simpson, 7 Watts & Serg. 83. . place of the persons who found and . . But those cases do not appear provided such necessaries for his' to us to rest on any satisfactory wife. And therefore, as such per- principle." In Harris vs. Lee, cited sons would be creditors of the hus- above, the holding was : " Admit- hand, so the plaintiff shall stand in ting the wife cannot at law borrow their place and be a. creditor also." money, though for necessaries, so 02 Ante Sec. 262. EIGHTS AND REMEDIES. 507 by reason of this agreement the junior incumbrancer was sub- rogated to a prior lien for the installment paid as against the bal- ance of the installments due the senior mortgagee. The Court said : " If M. had paid and taken up the coupon notes in con- troversy as a junior incumbrancer merely, and -without any ex- press agreement with the mortgage company, he would, at his option, have become subrogated to the rights of the company in the notes, subject only to the condition that he could not enforce their payment as a lien against the mortgaged property, while any part of the mortgaged debt thereafter to become due re- mained unpaid. But the express agreement, which the evi- dence tended to establish, was that M., on paying and taking up the notes should be permitted to hold them in the same manner as the company had theretofore held tbem, that is to say, as a prior and subsisting lien enforceable against the mortgaged property by appropriate foreclosure proceedings. That amounted, in legal effect, to a waiver on the part of the com- pany of its right to insist upon a postponement of M.'s claim for reimbursement until the remainder of the mortgaged debt was satisfied, as it might have done in the absence of such an agreement, and fairly overcame the presumption which would have been otherwise operative against him, that he took up the coupon notes merely to protect his title acquired through a junior mortgage." °' Such conventional subrogation will be applied as against other lien holders of the property, not parties to the agreement, as where a part payment was made on a mortgage under an agree- ment between the debtor and creditor and the one paying, that the latter should be subrogated to the priority of the mortgagee, it was held that a junior incumbrancer whose lien had already attached was postponed to the rights acquired under the subro- gation."* 83 Morrow et al. vs. United States denies subrogation in case of merely Mortg. Co., 96 Ind. 21. partial payment is fatal to that '* Shreve vs. Hankison, 34 N. J. claim. But that rule is not appli- Eq. 76. The Chancellor states the cable to this case, rule thus : " It is urged, on the part " Risdon Hankison's claim is for of Vanderbeck, that the rule which conventional, not legal, subrogation. 508 THE LAW OF SUKBTYSHIP. §278. Waiver of subrogation. A party to any transaction, may at any time by express waiver relinquish the advantages and benefits which the law bestows as an incident to his position, or which he has specially contracted to receive. Such voluntary act of waiver by a person entitled to subrogation cancels all claims on the property and interests available, and at once restores the property to the debtor and those claiming through him. An involuntary waiver of subrogation, such as arises from presumption of law or from acts and circumstances which ren- der it no longer equitable that subrogation should be preserved, has the same effect, and results also in the immediate establish- ment of the rights of others as superior to those of the promisor in suretyship, even though he pays the debt. A delay in enforcing the privilege of subrogation until thti claim of the surety against the principal for indemnity has be- come barred by the Statute of Limitations, is a conclusive waiver, as an equitable right cannot be enforced if the legal right upon which it is based is barred."^ The statute begins to A stranger, who, by the authority paid the entire debt of the creditor, and consent of the debtor, and on . . The courts have sometimes his agreement that he shall be sub- recognized what has been called a rogated to the rights of the creditor, conventional subrogation, resulting makes payment for the debtor, will from an express agreement with the be subrogated if the payment is creditor to the effect that the se- made with the express declaration curity held by him shall be assigned of the subrogation in the release to the person paying, or kept on made by the creditor." foot for his benefit. When the right See also Loeb vs. Fleming, 15 111. of subrogation is the result of an App. 503, McAllister, J.: "It is express agreement, it is no obection well settled that a surety can that it extends only to a part of the neither at law nor in equity call mortgage or other security." for an assignment of the claim of os Arbogast vs. Hays, 98 Ind. 26 ; the creditor against his principal, Kreider vs. Isenbice, 123 Ind. 10; or be clothed, by the mere operation 23 N. E. 786 ; Eittenhouse vs. Lever- of law, and upon principles of ing, 6 Watts & Serg. (Pa.) 190; equity, with the rights of an as- Hutcheson vs. Reaseh, 15 Pa. Super, signee of such claim, unless he has Ct. 96. EIGHTS AND HBMEDIES. 509 run against the surety on his right of subrogation at the time he pays the debt.'-"' If there has been a delay in asserting subrogation, although less than the statutory period of limitations, and third persons without knowledge of the suretyship have acquired liens on the property, the right of subrogation will be deemed waived as to such intervening lienors."^ A surety does not waive his equity of subrogation to securities held by the creditor by accepting collateral or other security from the principal debtor,"* or from a stranger."" §279. Contribution between co-sureties — General principles. The basis of the right of contribution between co-sureties is the maxim that equality is equity. The earliest adjudica- tions were based upon the custom of the city of London where- by persons having a common liability with others were put un- der obligations to reimburse their co-obligors who paid more than their share. ISTeither law nor equity furnished the rem- edy, since no express promise was made by the co-surety to contribute to the common burden, and none could be implied, as each undertaking was independent of the other and often one was made without the knowledge of the other, but inasmuch as it was the custom to those so bound to share the burden equal- ly, it was considered a duty which should be enforced by a de- cree of the court. ^"° The equity of contribution between persons jointly or sev- erally bound for the same duty has always been considered 96 Bennett vs. Cook, 45 2Sf. Y. 268; os Crawford vs. Eieheson, 101 111. Blake vs. Traders' Bank, 145 Mass. 351. 13; 12 K. E. 414; Rucks vs. Taylor, But see Henley vs. Stemmons, 4 49 Miss. 552; Bushong vs. Taylor, B. Men. (Ky.) 131. 82 Mo. 660; Hammond vs. Myers, 99 Wesley, Church vs. Moore, 10 30 Tex. 375; Maxey vs. Carter, 10 Pa. 273; West vs. Rutland Bank, Yerg. (Tenn.) 521. 19 Vt. 403. 97 firing's Appeal, 89 Pa. 336; loo Offley vs. Johnson, 2 Leon 166; Smith vs. Harbin, 124 Ind. 434; 24 Layer vs. Nelson, 1 Vern. 456. N. E. 1051; Noble vs. Turner, 69 Md. 519; 16 Atl. 124. 510 THE LAW OF SUKETYSHIP. clear and undoubted, and courts of both law and equity now apply the remedy with great liberality to the one invoking such relief. Some difficulty, however, has apparently been encountered in stating a reason ;for contribution that is flexible enough to meet all contingencies. The notion of implied contract, such as applies to the surety in his relations with the principal upon which he bases his right of indemnity, is not available for all cases of co-sureties, as the earlier surety often signs, and even pays his obligation without knowing that another is to be or has become co-surety on the same instrument. The same is true also of cases where co-sureties are bound for the same duty by different instru- ments, and each without the knowledge of the other. In an early case considered in England, in which the remedy was applied as a matter of right, as distinguished from the pre- cedents which were founded upon custom, the several sureties were bound on separate instruments, and a rule was stated which has ever since been adhered to. " It is admitted, that if they had all joined in one bond for £12,000 there must have been contribution. But this is said to be on the foundation of con- tract implied from their being parties in the same engagement, and here the parties might be strangers to each other. And it was stated that no man could be called upon to contribute who is not a surety upon the face of the bond to which he is called to contribute. The point remains to be proved that contribution is founded on contract. If a view is taken of the cases, it will appear that the bottom of contribution is a fixed principle of justice, and is not founded in contract The reason is, they are all in aequali jure, and as the law requires equality they shall equally bear the burden In the partic- ular case of sureties,- it is admitted that one surety may compei another to contribute to the debt for which they are jointly bound. On what principle ? Can it be because they are jointly bound ? What if they are jointly and severally bound ? What if severally bound by the same or different instruments? In every ono of these cases sureties have a common interest and a EIGHTS AXLl KE.MEDIES. 511 common burthen. .... At law all the bonds are forfeit- ed. The balance due might have been so large as to take in all the bonds, but here the balance happens to be less than the pen- alty of one. Which ought to pay ? He on whom the crown calls must pay the crown; but as between themselves they are in aequali jure, and shall contribute." ^"^ 101 Deering vs. Winehelsea, 2 B. & P. 270; S. C, 1 Cox 318 (1787). There is general acquiescence in the doctrine that contribution be- tween co-sureties will be enforced upon the basis of equitable obliga- tion, and that the court should un- dertake to require parties so related to do that which they ought to do, and not consider it necessary to adopt a legal fiction of implied promise in enforcing the rule. Wells vs. Miller, G6 N. Y. 255, Churoh, C. J. ■ " The right to con- tribution between co-sureties de- pends upon principles of equity rather than upon contract. It is well settled that the liability exists. although the sureties are ignorant of each other's engagement. The equity springs out of the proposi- tion that when two or more sureties stand in the same relation to a principal, they are entitled equally to all the benefits, and must bear equally all the burdens of the position. In such a Cii.-.e the max- im ' equality is equity ' applies." Robinson vs. Boyd, 60 0. S. 57; ,53 y. E. 494, .MinslLoll, J.. "The claim of the defendant below is, that the plaintiff is not entitled to con- tribution, because there is no privity of contract between them. . . . We do not find the doctrine of con- tribution so limited, nor is it re- quired by the principle on which it rests. It is not founded on contiact, hut arises from the equitable con- sideration that persons subject to a common duty or debt, should con- tribute equally to the discharge of the duty or debt; and so where one performs the whole duty or pays the debt or more than his aliquot part, each of the others should contribute to him, so as to equalize the dis- charge of what was a common burthen.'' \^■hite vs. Banks, 21 Ala. 705, Goldthuriilc, J.. " Sureties have the right to claim contribution from each other, in proportion to the amount paid by each upon the com- mon debt; and this right is the result, not of any implied contract between the parties, but of an ac- knowledged principle of natural jus- tice, which requires that those who voluntarily assume a common bur- den should bear it in equal propor- tions." See also Klepper vs. Borchsenius, 13 111. App. 318; Dennis vs. Gilles- pie, 24 Miss. 581; Smith's Executors vs. Anderson, 18 Md. 520; Allen vs. Wood, 3 Ired. Eq. (X. C.) 386; Al- drich vs. Aldrich, 56 Vt. 324. The view has frequently been ex- pressed that the liability to contri- bution rests upon implied contract. This is perhaps but another way of stating the same proposition upon which the cases rest which assume the absence of all contract relations. Batard vs. Hawes, 2 El. & Bl. 287, Lord Campbell, C. J.. " To sup- port the action for money paid, it is necessary that there should be a request from the defendant to pay. 512 THE LAW OF SURETYSHIP. -The equitable doctrine of contribution became so well estab- lished that courts of law assumed jurisdiction to enforce the right by adopting the fiction, in many cases, that the parties entered into the contract of suretyship upon the mutual tinder- either express or implied by law. ... In a joint contract for the benefit of all, each takes upon him- self the liability to pay the whole debt, consisting of tlie shares which each co-contractor ought to pay as between themselves; and each, in effect, takes upon himself a liability for each to the extent of the amount of his share. Each, therefore, may be considered as becoming liable for the share of each one of his co-eon- tractors at the request of such eo- contractor; and, on being obliged to pay such share, a, request to pay it is implied as against the party who ought to have paid it." Tlie same idea of implied contract is suggested by Lord Eldon in Cray- thorne vs. Swinburne, 14 Ves. Jr. 164, who says : " And I think that right is properly enough stated as depending rather upon a, principle of equity than upon contract; unless in this sense; that, the principle of equity being in its operation estab- lished, a contract may be inferred upon the implied knowledge of that principle by all persons, and it must be upon such u ground, of implied assumpsit, that in modern times Courts of Law have assumed a juris- diction upon this subject." See also Mathews vs. Aikin 1 N. Y. 001. Where the Court in com- iT^cnting upon Norton vs. Coons, 3 Danio 130, says: "In that case the circumstances under which the defendant became co-surety were such as to repel the presumption of any promise to make contribution. But the Court held that his being a surety on the same contract without qualification in terms was sufficient to fix his obligation to contribute, and that for the purpose of giving the plaintiffs a remedy the court would presume a promise. A prom- ise was, therefore, imputed where none confessedly existed, in order to provide a remedy for the party where there was no doubt as to the legal liability; and the legal liability in such cases springs from the equitable obligation." Russell vs. Failor, 1 0. S. 327, Bartley, C. J.: "The right of con- tribution among sureties is founded not in the contract of suretyship, but is the result of a general princi- ple of equity which equalizes bur- dens and benefits. The common law has adopted and given effect to this equitable principle on which a sure- ty is entitled to contribution from his co-surety. This equitable obli- gation to contribute, having been established, the law raises an im- plied assumpsit on the part of the co-surety to pay his share of tlie loss, resulting from a concurrent liability to pay a common debt." Bradley vs. Burwell, 3 Denio 61. Jewett, J.: "J think that the law implies a contract between co-sure- ties to contribute, ratably, towards discharging any liability which they may incur in behalf of their princi- pal, such contract originating at the time they execute tlie principal obligation." Agnew vs. Bell. 4 Watts (Pa.) '■>2. Kennedy, J, . " This right has been considered as depending rather EIGHTS AND EEMEDIES. 513 standing that if the principal failed to keep his engagement all who were collaterally bound for the same debt would share the loss, whether they made their contract at the same time or on the same instrument or not, and whether one co-surety had knowledge of the engagement of the other or not. A practical distinction arises between actions upon implied contracts and actions upon a purely equitable basis in the appli- cation of the Statutes of Limitations of the various States, and generally a longer period of limitation is applied in favor of actions cognizable in equity than at law. It was held in Wisconsin that the right of contribution rests upon implied contract and therefore barred in six years, and that the limitation of ten years as to actions in equity did not apply."^ §280. Contribution between sureties bound by different instru- ments. If several promisors are bound for a common burden even though by separate instruments they will be liable to contribute to each other. ^"' upon a principle of equity than up- Cox, 7 T. B. Men. 401; Bachelder on contract; but it may well be con- vs. Fiske, 17 Mass. 464. Bidered as resting alike on both for 102 Bushnell vs. Bushnell, 77 Wis. its foundation ; for although, gen- 435 ; 46 N. W. 442. The Statutes of erally, there is no express agreement Limitation in Wisconsin provide a entered into between joint sureties, limitation of six years upon an ac- yet from the uniform and almost tion on any contract, obligation or universal understanding which liability, express or implied (Sec. seems to pervade the whole com- 4222, Sub. 3 ) , and ten years upon an munity, that from the circumstance action cognizable in equity (Sec. alone of their agreeing to be, and 4221, Sub. 4). ' becoming accordingly co-sureties of The same distinction for the pur- the principal, they mutually be- pose of applying the statute of lim- come bound to each other to divide itations is made in Ohio. Neilson & and equalize any loss that may Churchill vs. Fry, 16 0. S. 552. arise therefrom to either or any of See also Tate vs. Winfree, 37 S. E. them, it may with great propriety (W. Va.) 956. be said that there is at least an im- i^^ Deering vs. Winchelsea, 2 B. plied contract." & P. 270; Schram vs. Werner, 85 See also Lansdale's Admr's vs. Hun 293; 32 N. Y. S. 995. 514 THE LAW OF SUEETYSHIl". If the undertakings are for different amounts their liability in contribution will be in proportion.^"* In the matter of contribution between sureties bound by dif- ferent instruments the rule is the same whether the sureties are each bound for an aliquot part of the debt or for the entire debt. If the latter, the relation between the sureties is the same in all respects as if they had joined in one instrument.^"^ Where suc- cessive bonds are cumulative, the right of contribution arises, and covers such liability as is common to both.^"* Contribution between sureties upon different instruments will not be allowed except they each relate to the same transac-^ tion. It is not sufficient that they secure liabilities which arise out of the same duty. If several bonds or obligations are given to indemnify against the default of another growing out of the same transaction, the promisors will be co-sureties, even though their respective liajbil- " The obligation of co-sureties to contribute to each other has grown out of that favorite rule of equity that equality is equity. It is not at all founded upon the idea of con- tract between sureties, and may be invoked by the one against the other when he has been compelled to pay for the principal debtor, although without any knowledge down to the time of payment or later that his co-surety has also obligated himself to pay the same debt. Nor will their becoming sureties at different times and by different instruments with- out the knowledge of each other af- fect their liability to contribute one to the other as co-sureties." Bright vs. Lennon, 83 N. C. 183. io*Armitage vs. Pulver, 37 N. Y. 494; Jones vs. Blanton, 6 Ired. Eq. (N. C.) 115; Young vs. Shunk, 30 Minn. 503; 10 N. W. 402; Biles- mere Brewing Co. vs. Cooper, 1 Q. B. L. R. 75. 106 Hughes vs. Boone, 81 N. C. 204; Bergen vs. Stewart, 28 How. Pr. 6; Ketler vs. Thompson, 13 Bush (Ky.) 287; Dugger vs. Wright, 51 Ark. 232; 11 S. W. 213; Powell vs. Powell, 48 Cal. 234. 106 Rudolf vs. Malone, 104 Wis. 470; 80 N. W. 743; Cobb vs. Haynes, 8 B. Mon. (Ky.) 137; Stev- ens vs. Tucker, 87 Ina. 109. Bell vs. Jasper, 2 Ired. Eq. (N. C.) 597. In this case the sureties upon a guardian's bond for $10,000 asked to be released, which was done, and a new bond of $5,000 executed, a loss of $4,000 having occurred while the first bond was in force, which the first sureties paid, the first sureties were allowed contribu- tion against the second for their pro rata share of the loss. But see Burnett vs. Millsaps, 59 Miss. 333. Where it is held that the several sureties should contribute equally up to the amount of the smaller bond. To the same effect see Cherry vs. Wilson, 78 N. C. 164. \ EIGHTS AND REMEDIES. 515 ities are limited to a part of the sum secured. But if the under- takings are for distinct parts of the debt of the piincipal, as dis- tinguished from the undivided part of the whole, the promisors are not co-sureties and cannot enforce contribution. Thus where one wishing credit for a definite amount, engaged to furnish three bonds each for an amount equal to one-third of the sum to be secured. It was considered that each bond was a distinct transaction, and not so related to the others as to enable one who paid his bond to have contribution.^"' If in the course of legal proceedings for the collection of a debt for which another is already bound as surety, an additional security such as a stay or appeal bond is given, the successive undertakings, although securing the same debt, do not arise out of the same transaction, and the relation of co-sureties does not exist, but the separate sets of sureties must exonerate' each ■other in the inverse order in which they were given.^°* Where one of three co-sureties was given an indemnity bond by his principal against his liability as surety, and default be- ing made, paid the full amount, and afterwards recovered the amount paid from the surety on the indemnity bond, it was held that the indemnity surety was not thereby made co-surety with other sureties on the original bond, and could not enforce contribution from them.^°* loT Coope vs. Twynam, Turn. & Va. 121 ; Dunlap vs. Poster, 7 Ala. Russ. 426. In this case each bond 734. was for £400 and payable at diflferent W9 Gibson vs. Shehan, 5 App. D. periods, and neither surety was li- C. 391. This ease was decided upon lable to the creditor for any part of the theory that since the indemnity the debt except the particular sum surety was a Surety Company to described in his undertaking, al- whom a premium had been paid by though each portion of the debt was the principal that the entire penalty contracted for at one time, and tak- of the bond constituted a trust fund en together constituted an entire to which the other co-sureties might contract as between the debtor and resort. But if the indemnity bond creditor. had been executed by a private sure- los Friberg vs. Donovan, 23 111. ty, such surety would not be entitled App. 58 ; Pott vs. Nathans, 1 Watts to have contribution with the other & Serg. (Pa.) 155; Brandenberg vs. sureties in the original transaction, Flynn's Executor, 12 B. Mon. (Ky.) as the indemnity bond constitutes 397; Chrisman vs. Jones, 34 Ark. an entirely different transaction, 73; Rosenbaum vs. Goodman, 78 and is not bound at all for the orig- 616 THE LAW 03? SUEETYSHIP. §281. A surety for a surety not liable in contribution. A supplemental surety, or one who engages to answer for the default of another who has already become bound as a promisor in suretyship, is not liable to contribution, since as to such prom- isor the earlier surety is in the relation of a principal debtor. This is illustrated by the ordinary cases in which two or more persons become separate and successive indorsers upon promis- sory notes. If they are regular indorsers in the chain of title, the last undertakes that the first shall pay, and if the first does pay the later indorsers are fully exonerated. This is because they are sureties for the earlier indorsers and notwith them. The same is true of successive accormnodation indorsers in the absence of special agreement to be jointly bound.^^" If one of several sureties stipulates with the debtor or cred- itor that he assumes the liability only as surety for those who precede him, he will be bound in no other way. It adds nothing to the liability of the earlier signers that another has undertaken to answer for them, and the equity of contribution is overcome by the superior legal contract right of the later promisor who signs upon such condition.^^^ If the last one of a series of accormnodation indorsers adds the word " surety " to his name, the others being signed in inal debt, but merely for such sums 439; Schram vs. Werner, 85 Hun. as are coerced from a, surety for the 293; 32 N. Y. S. 995; Hamilton vs. original debt. Johnston, 82 111. 39; Adams vs. But see American Surety Co. vs. Flanagan, 36 Vt. 400; Boulware vs. Boyle, 65 O. S. 486 ; 63 N. B. 73, in Hartsook, 83 Va. 679 ; 3 S. E. 289 ; which an apt criticism of Gibson vs. Baldwin vs. Fleming, 90 Ind. 177; Shehan (ubi supra) is made, where- Hanish vs. Kennedy, 106 Mich. 455; in the Court says, "Analysis shows 64 N. W. 459; Singer Mfg. Co. vs. that it applies a general rule to a Bennett, 28 W. Va. 16. case which is not comprehended by Where a co-surety claims that his it because not within its reason." contract is anything else than what 110 Post Sec. 295; McDonald vs. it purports to be on its face, such McGruder, 3 Pet. 470; McCarty vs. as that he is a surety for and not Roots, 21 How. 432. with another, the burden is on him 111 Bulkeley vs. House, 62 Conn. to show such fact. Carr vs. Smith, 459; 26 Atl. 352; Mulkey vs. Tern- 129 N. C. 232; 39 S. E. 831. pleton, 60 S. W. (Tex. Civ. App.) EIGHTS AND REMEDIES. 517 blank, the presumption arises that.tbie last signer is surety for -the others."^ In the absence of all stipulation on the instrument itself, the conditions under which the various parties sign may be shown by parol, and if a mutual understanding between the surety and either tbe debtor or creditor be established that the liability of co-surety is not assumed, contribution will not be enforced, even though the earlier surety had no notice of the arrangement/^^ It is held that the stipulation limiting the liability to that of a surety for the prior parties is ineffectual where the prior par- ties contract on the condition that those who sign later shall be- come co-sureties.^^* §282. Contribution as affected by special contract between sure- ties. The relation between several obligors on a suretyship contract may generally be shown, and if some have agreed with the others to assume a larger liability as between themselves, it would be manifestly an anomaly in equity ,to permit one party to the agreement to violate his compact and assert his so called " equity " of contribution because some rule of evidence did not permit the agreement to be shown. The right to show by parol an agreement between co-sureties, as affecting their rights and liabilities in contribution, is not covered by the Statute of Frauds. Where one surety promises his co-surety that he will respond to a larger liability than the equity of contribution would put upon him by operation of law, ii2Sayles vs. Sims, 73 N. Y. 551. Paschal, 70 Mo. App. 117; Schram In Harris vs. Warner, 13 Wend. vs. Werner, 85 Hun 293; 32 N. Y. 400, there were four sureties, the S. 995; Oldham vs. Broom, 28 O. S. first three added the word " surety " 41. to their names, and the last added n* Grouse vs. Wagner, 41 0. S. " surety for the above names," and 470. it was held that contribution could But see Bobbitt vs. Shryer, 70 not be enforced against the last Ind. 513; Melms vs. Werdehoflf, 14 surety. Wis. 18; Adams vs. Flanagan, 36 113 Craythorne vs. Swinbourne, 14 Vt. 400 ; Sherman vs. Black, 49 Vt. Ves. Jr. 160; Chapeze vs. Young, 87 198. Ky. 476; 9 S. W. 399; Leeper vs. 518 THE LAW OF SUBETTSHIP. he in effect, promises to indemnify him against his liability as a surety for that part in excess of the amount agreed upon. Such promise of indemnity may be shown by parol.^^° Thus where a surety upon an official bond stipulated with his co-surety that he was to be liable for only one-third of any de- fault that should be made, and he afterwards paid one-half the default, and brought action to recover from his co-surety upon the parol agreement, the amount he had paid in excess of his agreement, it was held, " Co-sureties may by contract, agree- ment or understanding between themselves, limit and fix the proportion and extent of their several or correlative liability and it is competent to establish the agreement by parol." ^^° §283. Contribution between persons in the situation of a surety. Where a liability exists to pay the debt of another and the obligation is satisfied, a right of contribution arises against all who were bound for the same duty even though the suretyship relation was involuntary. The party paying being placed in the situation of a surety, the equity of contribution arising in favor of a regular surety will apply. In a case where brokers holding notes of their customers for sale, fraudulently pledged them for their own debt, the sev- eral owners of the notes were considered as being in the situa- tion of sureties for the debt of their brokers, and the maker of one of the notes being called upon for payment it was held that he was entitled to contribution from^ the others similarly sit- uated."' 115 Thomas vs. Cook, 8 Barn. & See also Ante See. 32. Cr. 728; Wildes vs. Dudlow, L. E., "8 Rose vs. WoUenberg, 31 Ore- 19 Eq. 198; Guild vs. Conrad, L. R., gon, 269; 44 Pac. 382. 2 Q. B. Div. 885 ; Chapin vs. Merrill, See also Hoggatt vs. Thomas, 3& 4 Wend. 657; Blake vs. Cole, 22 La. Ann. 298. Pick. 97; Horn vs. Bray, 51 Ind. Contra — Wolverton vs. Davis, 85 555; Ferrell vs. Maxwell, 28 O. S. Va. 64; 6 S. E. 619. 383; Barry vs. Ransom, 12 N. Y. n'MeBride vs. Potter-Lovell Co., 462 ; Baldwin vs. Fleming, 90 Ind. 169 Mass. 7 ; 47 N. E. 242. In this 177; Mansfield vs. Edwards, 136 ease the several notes were in dif- Mass. 15. ferent sums and fell due at different EIGHTS AND EEMEDIES. 519 In those States where stockholders of a corporation are indi- vidually liable to assessment for the payment of corporate debts, they are thus plajced in the situation of a surety, and if one stockholder pays more than his proportionate share he is entitled to contribution from the others.^^* §284. One who becomes surety at the request of a co-surety is liable in contribution to such co-surety. It has been held that if one becomes surety at the request of a co-surety, the latter will be presumed to make the request in furtherance of a purpose of his own, and a promise of in- demnity to him will be implied. In an early case Lord Kenyon assumed it to be beyond ques- tion that a surety signing upon invitation of his co-surety is exempt from contribution, stating his view thus : " I have no doubt that, where two parties become joint sureties for a third person, if one is called upon and forced to pay the whole of the money, he has a right to call on his co-surety for contribution ; but where one has been induced so tO' become surety at the in- stance of the other, though he thereby renders himself liable to the person to whom the security is given, there is no pretense times. Allen, J. : " These diflferences ability, thus making them all sure- do not vary the equitable rights ties for itself. It might be that and liabilities of the parties as under such circumstances the amongst themselves. The liability pledgee would prefer to hold one to contribute does not depend on a, and exonerate another, and it would contract between the parties who have power to do so in the first are held liable to contribute, and is instance by proceeding to collect of not affected by the fact that notes one, but not of another. But where wore pledged and fell due and were several different parties have thus paid at different times, or that some been exposed to loss by the fraud of them were paid only in part or of their common agent, it is more not at all. The notes were all equitable that the burden of the loss pledged to secure the same indebted- should be shared pro rata. Under ness. The fact that some of them such circumstances equality is fell due at earlier dates than others equity, without respect to the times creates no equity in favor of those of the maturity of the notes." which fell due last. The various usUmsted vs. Buskirk, 17 O. S. parties selected a common agent, 114; Buchanan vs. Meisser, 105 111. and this agent used its power to 638; Wolters vs. Henningsan, 114 place them all under a common li- Cal. 433; 46 Pac. 277. 520 THE LAW OF SUEETTSHIP. for saying that he shall be liable to be called upon by the person at whose request he entered into the security." '^° In nearly all the cases usually cited in support of tbe rule stated by Lord Kenyon the surety signing at the request of his co-surety was also indemnified, either by the written or verbal promise of the co-surety/^" and this circumstance alone would prevent the one furnishing the indemnity from enforcing contri- bution. Unless there is some agreement or understanding to the con- trary the fact that one becomes surety at the request of a co- surety does not appear to furnish any reason for depriving the co-surety of contribution. " If a surety making the request, receive any personal benefit from the execution of the obligation — as where the money raised thereon goes into his hands, or where he has already in- curred a liability upon an instrument completed by delivery — ■ we can see a propriety in the court treating the person thus bene- fited and maldng the request, as a principal, and the person signing at such request as his surety only and not liable to con- tribute for his benefit. So, where the signature is upon an express contract to indemnify, the consideration supports the promise and discharges the surety from the legal obligation otherwise resting upon him. But where parties standing in an equal relation to the principal sign as sureties for that principal, the one at the request of the other, we are not satisfied that any sound principle of law or equity will discharge either from the legal obligation he assumes on the face of the instrument to con- tribute his proportion on default of the chief obligor.^^^ 119 Turner vs. Davies, 2 Esp. 478 ; But see Hendrick vs. Whittemore, Cutter vs. Emery, 37 N. H. 567; 105 Mass. 23. Where the court ap- Daniel vs. Ballard, 2 Dana (Ky. ) proves the charge of the lower court 296. which was: " If the jury were satis- i2() Thomas vs. Cook, 8 Barn. & fied that the defendant signed the Cr. 728; Apgar vs. Hiller, 4 Zabr. bond as surety, at the request of or (N. J.) 812; Harris vs. Brooks, 21 being induced thereto by the plain- Pick. 195. tiff, then the plaintiff could not re- 121 Bagott vs. Mullen, 32 Ind. 332; cover, but if he signed at the request McKee vs. Campbell, 27 Mich. 497; of the principal, though the request Burnett vs. Millsaps, 59 Miss. 333, of the plaintiff was coupled with it, EIGHTS AND EBMEDIES. 521 §285. One who aids in the commission of the default is barred from the right of contribution. The proposition is self-evident that where one of two or more obligors in suretyship aids in the commission of a default by the principal, either by his negligence or his active misconduct, he cannot assert a claim in contribution. Where the plaintiff and another were co-sureties of an admin- istrator and the action was to recover in contribution for losses paid by the plaintiff resulting from the failure of a bank in which trust funds were deposited, it was held that the plaintiff could not recover, it being shown that the plaintiff as the at- torney of the administrator made the deposit, and although act- ing in good faith, yet as it was his own act which caused the loss, he could not claim that the defendant owed him any duty to contribute.^^^ It was held that where a deputy sheriff was a surety upon the bond of the sheriff and recovery was had upon the bond of the latter for the wrongful act of the deputy, that no recovery in •contribution could be' had by the deputy.^"^ The misconduct of the surety which deprives him of contri- bution must be something more than a mere moral delinquency. The rule covers only such conduct as amounts to participation in the act which causes the loss. If the surety by his example or by his own solicitation leads the principal into habits of vice, which finally cause the principal to make default, the agency of the surety is too remote to deprive him of contribution. In the early case of Deering vs. Winchelsea ^^'' heretofore con- sidered ^^^ it was claimed that the plaintiff seeking contribution had encouraged the principal in his irregularities by engaging with him in gaming and other extravagances which led to his that would not be defense in this Ga. 277 ; Simmons vs. Camp, 71 Ga. action." 54; Pile vs. McCoy, 99 Tenu. 367; J22 Eshleman vs. Bolenius, 144 Pa. 41 S. W. 1052. 269; 22 Atl. 758. But see Shepard vs. Pebbles, 38 123 Block vs. Estes, 92 Mo. 318; 4 Wis. 373. S. W. 731. 124 2 B. & P. 270. See also Scofield vs. Gaskill, 60 125 Ante Sec. 279. 522 THE LAW OP StTEETTSHIP. ruin, and the Court observed : " If these were circumstances which could work a disability in the Plaintiff to support his demand, it must be on the maxim, ' that a man must come into a court of Equity with clean hands ' ; but general depravity is not sufficient. It must be pointed to the act upon which the loss arises, and must be in a legal sense the cause of the loss. In a moral sense Sir E. Deering might be the author of the lossj but in a legal sense Thomas Deering was the author ; and if the evil example of Sir E. Deering led him to it, yet this was not what a court of justice could take cognizance of." §286. When contribution may be enforced. No right of contribution arises in favor of a co-surety who pays no more than his ratable sihare of the common burden. If one of two sureties pays one-half of the debt, he cannot call upon his co-surety to contribute to him even though his co-surety pays nothing to the creditor. If the latter sees fit not to enforce his demand against one of the sureties, it is no injury to the other."^ To permit a co-surety to have contribution for each install- ment as he pays it, without regard to the amount of his share of 126 Davies vs.' Humphries, 6 M. & ly no right of action, which is W. 153, Parke, B.: "If a surety founded on the equity to receive it." pays a part of the debt only, and See also Wallis vs. Swinburne, 1 less than his moiety, he cannot be Welsh. H. & G. 203 ; Ex parte Snow- entitled to call on his co-surety, who den. In re Snowden, 17 Ch. Div. might himself subsequently pay an 44; Morgan vs. Smith, 70 N. Y. equal and greater portion of the 537; Camp vs. Bostwick, 20 0. S. debt; in the former of which cases, 337; Smith vs. State, 46 Md. 617; such co-surety would have no con- Pegram vs. Riley, 88 Ala. 399; 6 tribution to pay, and in the latter South. 753 > Washington vs. Nor- he would have one to receive. In wood, 128 Ala. 383; 30 South. 405; truth, therefore, until the one has Weidemeyer vs. Landon, 66 Mo, paid more than his proportion, App. 520; Durbin va. Kuney, 19 either of the whole debt, or of that Oregon 71; -23 Pae. 661; Glasscock part of the debt which remains un- va. Hamilton, 62 Tex. 143; Buahnell paid by the principal, it is not clear vs. Bushnell, 77 Wis. 435; 46 N. W. that he ever will be entitled to de- 442; Backus vs. Coyne, 45 Mich, mand anything from the other; and 584; 8 N. W. 694; Gordon vs. Rixey, before that, he has no equity to re- 86 Va. 853; 11 S. E. 562. ceive a contribution, and consequent- EIGHTS AND REMEDIES. 523 the entire debt, would be a great inconvenience and result in a multiplicity of suits. If the payment by a surety of less than his moiety extinguishes the entire debt, the sum so paid represents the common burden and contribution arises.^"' The act of payment fixes the right of recovery in contribution and a demand and notice are not required as a basis of an ac- tion against the co-surety.^^° Payment may be made by the note of the surety, and the ac- ceptance of the note as payment by the creditor gives imme- diate right of contribution, and the right may be enforced even though the note is unpaid,^^' and even though the maker of the note is insolvent.^'" Where a surety executed and delivered his note to the creditor and thereafter the creditor through motives of friendship can- celled it and returned it to him without payment, it was held that recovery in contribution might be had against his co- surety.^^^ It has been held that contribution can not be enforced against a co-surety, except where the surety paying is unable to recover from' the principal by reason of the insolvency of the latter.^^^ But the general rule is that contribution may be enforced with- out regard to the financial condition of the principal.^'' - 12' Stallworth vs. Preslar, 34 AIeu 76 Mo. App. 496 ; Nixon vs. Beard, 505; Boutin vs. Etaeil, 110 Wis. Ill Ind. 137; 12 N. E. 131. 276; 85 N. W. 964. Contra — Brisendine vs. Martin, 1 128 Mason vs. Pierron, 69 Wis. Ired. Law (N. C.) 286. 585; 34 N. W. 921; Vliet vs. Wyck- iso Owen vs. McGeheg, 61 Ala. off, 42 N. J. Eq. 642; 9 Atl. 679; 440. Parham vs. Green, 64 N. C. 436. isi Stubbins vs. Mitchell, 82 Ky. It was held in Neilson vs. Fry, 535. 16 0. S. 552, that the plaintiff can- i32 Morrison vs. Poyntz, 7 Dana not recover costs in contribution un- (Ky.) 307; Poignard vs. Vernon, 1 less the co-surety is notified of the T. B. Mon. (Ky.) 45; Glasscock amount paid for his account with a vs. Hamilton, 62 Tex. 143. demand for payment. issMosely vs. EuUerton, 59 Mo. 128 Smith vs. Mason, 44 Neb. 610; App. 143; Smith vs. Mason, 44 Neb. 63 N. W. 41. 610; 63 N. W. 41; Taylor vs. Rey- See also Sloan vs. Gibbes, 56 S. C. nolds, 53 Cal. 686; Sloo vs. Pool, 15 480; 35 S. E. 408; Ryan vs. Krusor, 111. 47; Buekner vs. Stewart, 34 524 THE LAW OF SUEETYSHIP. §287. Equitable contribution — or the right of a surety to call upon his co-surety for exoneration before payment. The doctrine that a surety oannot enforce contribution until he has iirst paid more than his own proportion of the debt must yield to the superior equities of exceptional eases. If one of several co-obligors is called upon to pay the entire debt it will sometimes occur that a compliance with this demand "would cause financial disaster to him, which his right of con- tribution after payment would not prevent. This contingency has been stated thus : " Obviously if a man were surety with nine others for £10,000, it might be a ruinous hardship if he were compelled to raise the whole £10,000 at once and perhaps to pay interest on the £9,000 until he could recover the £9,000 by actions or debtor summonses against his co-sureties." ^^* It is clear that some form of equitable contribution, without requiring payment to be first made, is necessary to meet such cases. This is ordinarily accomplished by a bill in equity, brought by the surety called upon for the entire debt^ directed against his co-surety, praying for an order requiring the co- surety to pay to the creditor his contributory share of the com- mon burden. Such procedure enables one who is entitled to contribution and indemnity from his co-obligor to prevent loss and perhaps ruin, and is a reasonable expression of the highest equity.^^^ Ala. 529; Goodall vs. Wentworth, business would be greatly embar- 20 Me. 322; Kankin vs. Collins, 50 rassed, that she was willing to pay Ind. 158; Boutin vs. Etsell, 110 her proportion, and asks for an or- Wis. 276; 85 N. W. 964. der requiring the co-sureties to pay 134 Wolmershausen vs. Gulliek, L. to the creditor their respective R., 2 Ch. Div. (1893) 514. shares. The Court granted the re- 135 In the case of Wolmershausen lief, stating: "I think that I can vs. Gulliek (ubi supra) demand was declare the Plaintiff's right, and made upon one of five sureties for make a, prospective order under the payment of the entire debt, which, whenever she has paid any which was a large sum, and the bill sum beyond her share, she can get alleges that if the plaintiff were it back, and I therefore declare the obliged to withdraw so large an Plaintiff's right to contribution, and amount from her business that the direct that, upon the Plaintiff pay- EIGHTS AND REMEDIES. 525 The surety may also have equitable contribution enforced where the co-surety is about to malce a fraudulent conveyance of 'his property. Under these circumstances it would be a mani- fest hardship against the surety to require him to first adjust his liability to the creditor before taking steps to restrain the. fraudulent act of his eo-surety.^^° §288. Amount recoverable in contribution. In addition to the contributory share of the debt, the surety who is called upon for payment by the creditor may recover from his co-surety his share of the costs of the litigation insti- tuted by the creditor in establishing the amount due/^^ and other expenses incurred in a defense of the claim undertaken in good faith, such as counsel fees.^^* The surety paying the contributory share of his co-surety is entitled also to recover interest on the amount paid.^"" Contribution can be had only for the amount actually paid ■with interest and expenses, and if the surety pays in property of less value than the amount of the debt,^*° or buys up the claims against the debtor for less than their face value,^*^ he must settle with his co-sureties on the same basis. ing her own share, the Defendant Wagenseller vs. Prettyman, 7 111. GuUiek is to indemnify her against App. 192; McKee vs. Campbell, 27 further payment or liability, and is, Mich. 497 ; Kemp vs. Tinden, 12 M. by payment to her or to the princi- & W. 421. pal creditor or otherwise, to exon- iss Boutin vs. Etsell, HO Wis. erate the Plaintiff from liability be- 276; 85 N. W. 964; Van Winkle vs. yond the extent of her own share." Johnson, 11 Oreg. 469; 5 Pac. 922; See also Hodgson vs. Baldwin, 65 Gross vs. Davis, 87 Tenn. 226; 11 111. 532; Hyde vs. Tracy, 2 Day S. W. 92. (Conn.) 491; Ferrer vs. Barrett, 4 i39 Lawson vs. Wright, 1 Cox Jones Eq. (N. 0.) 455. 275; Ex parte Bishop, 15 Ch. Div. Post Sec. 298. 400 ; Buckmaster vs. Grundy, 8 111. 136 Bowen vs. Hoskins, 45 Miss. 626; Smith vs. Mason, 44 Neb. 610; 183; Smith vs. Eumsey, 33 Mich. 63 N. W. 41; Backus vs. Coyne, 45 183; Pashby vs. Mandigo, 42 Mich. Mich. 584; 8 N. W. 694. 172; 3 N. W. 927. "0 Jones vs. Bradford, 25 Ind. 137 Security Ins. Co. vs. St. Paul 305 ; Edmonds vs. Sheahan, 47 Tex. Ins. Co., 50 Conn. 233; Marsh vs. 443. Harrington, 18 Vt. 150; Bright vs. "i Derosset vs. Bradley, 63 N. C. Lennon, 83 N. C. 183; Gross vs. 17; Tarr vs. Ravenscroft, 12 Gratt. Davis, 87 Tenn. 226; 11 S. W. 92; 642. 526 THE LAW OF SUEETYSHIP. §289. Contribution as affected by the insolvency of one or more co-sureties. In determiniiig the amount which each co-surety should con- tribute, those who are insolvent will be excluded, and the bur- den divided among those who are solvent. There would seem to be no reason why this rule, if applied ' at all, should not have equal force whether the action for con- tribution arises at law or in equity. In either forum the rem- edy of contribution is enforced upon the theory that equity will not permit one to be charged with a greater share of a common burden than his co-obligors. It has, however, been held in some jurisdictions that the in- solvent co-surety will be excluded only when the action for con- tribution is brought in equity.^*^ But the generally accepted rule is that the inherent equities of the doctrine of contribution will be as fully administered at law as in equity, and that the insolvent surety will be excluded from the calculation.^*^ §290. Contribution as affected by absence from the jurisdiction or by the death of a co-surety. All solvent co-sureties within the jurisdiction in which an equitable action for contribution is brought must be joined as 142 Moore vs. Bi'uner, 31 111. App. some cases which hold that in an 400; Gross vs. Davis, 87 Tenn. 226; action for contribution the question 11 S. W. 92; Acers vs. Curtis, 68 of the solvency or insolvency of the Tex. 423; 4 S. W. 551. co-sureties is not material, but that 1*3 Burroughs vs. Lott, 19 Cal. the one paying the debt is entitled 125 ; Newton vs. Pence, 10 Ind. App. to recover contribution without re- 672; 38 N. E. 484; Sloan vs. Gibbes, gard to the insolvency of any of 56 S. C. 480; 35 S. E. 408; Liddell them. The better and the more vs. Wiswell, 59 Vt. 365 ; 8 Atl. 680. equitable rule, one supported by the Smith vs. Mason, 44 Neb. 610; 63 weight of authority, and which we N. W. 41, Tforval, C. J.. " Ordina- think should obtain, is that contri- rily, where one of several sureties, bution must be based upon the num- who are equally bound, pays the ber of solvent co-sureties. In other debt, he is entitled t6' recover as words, the insolvent ones are to be contribution from the solvent sure- excluded, and the burden must be ties a pro rata share of the amount distributed between those who are so paid, with interest. There are solvent." EIGHTS AND EEMEDIES. 527 defendants."* But if some are absent from the jurisdiction it does not constitute a bar to an action against the others, and those absent will be excluded, and the entire burden distributed among the ones remaining.^*^ If a co-surety dies, the obligation to contribute devolves upon his legal representatives. In this respect it is like any other contract to pay money at a future time upon a contingency, and it is not necessary that the breach should occur before the promisor dies.^*" If the estate has been administered, and the assets distributed to the heirs before the cause of action in contribution arises, the contributory share of the decedent may be recovered from the heirs."' %Zdl, Surety seeking contribution must account to his co-sureties for indemnity furnished him by the principal. If a surety receives indemnity from the principal he holds it in trust for the equal benefit of all the co-sureties, and their pro rata share of the indemnity, if the indemnity has been re- duced to money, must be deducted from their prospective lia- bilities before recovery can be had in contribution, or if the 14* Johnson vs. Vauglin, 65 111. N. H. 613; Liddell vs. Wlswell, 59 425; Adams vs. Hayes, 120 N. C. Vt. 365; 8 Atl. 680. '383; 27 S. E. 47; Bruce vs. Bicker- "e Baehelder vs. Fiske, 17 Mass. ton, 18 W. Va. 342; Young vs. 464; Johnson vs. Harvey, 84 N. Y. Lyons, 8 Gill (Md.) 162. 363; Egbert vs. Hanson, 70 N. Y. S. Because of the fact that the liabil- 383; Tarr vs. Ravenseroft, 12 Gratt. ity of co-sureties is considered sev- 642; Handley vs. Heflin, 84 Ala. «ral rather than joint, a technical 600; 4 South. 725; Conover vs. Hill, objection to a joinder would arise if 76 111. 342; Sanders vs. Weelburg, the action is brought at law, ex- 107 Ind. 266; 7 N. E. 573; Hecht vs. cept where the code provides for Skaggs, 53 Ark. 291; 13 S. W. 930; joining as defendants all persons Pace vs. Pace, 95 Va. 792; 30 S. E. having an interest in the contro- 361. versy. Daum vs. Kehnast, 18 0. C. i*'? Stevens vs. Tucker, 87 Ind. C. 1. 109; Williams vs. Ewing, 31 Ark. 146 Security Ins. Co. vs. St. Paul 229 ; Gibson vs. Mitchell, 16 Fla. Ins. Co., 50 Conn. 233; Faurot vs. 519. Gates, 86 Wis. 569; 57 N. W. 294; See also ZoUiekofifer vs. Seth. 44 Stewart vs. Goulden, 52 Mich. 143; Md. 359. 17 N. W. 731 ; Currier vs. Baker, 51 528 THE LAW OF SUEETYSHIP. value of the indemnity has not been established before contribu- tion is enforced, the co-sureties may recover back from the indemnified surety their proportionate share, as it shall be finally ascertained. In a well considered English case two of four sureties were indemnified by a bill of sale of personal property. They paid the debt, and their co-sureties contributed in equal proportions and afterwards brought suit to recover their share of the in- demnity. The plaintiffs had no knowledge of the indemnity at the time they signed, and the bill of sale to the defendants' contained the stipulation that the indemnity was exclusively for the defendants, and that the plaintiffs should not have the- benefit of the security or any part of it; the court held the plaintiffs were entitled to the relief sued for.^** Indemnity in the hands of one co-surety will inure to the benefit of other sureties who make their contract at a later period, as where a public officer gives an additional bond as required by law, the last sureties if sued in contribution will 1*8 steel vs. Dixon, 17 Ch. Div. and Ms eo-sureties, to bring that (1881) 825, Fry, J.: "In my opin- into hotchpot, in order that it may ion the Plaintiffs are entitled to be ascertained what is the ultimate share in the benefit secured by the burden which the co-sureties have deed of the Defendants. In coming to ,bear, so that that ultimate burden, to that conclusion, I base myself on may be distributed between them, the general principle applicable to equally or proportionably, as the- co-sureties, as established by the case may require." well-known and often-cited case of See also Berridge vs. Berridge, 44 Deering vs. Earl of Winchelsea, the Ch. Div. 168; Vandiver vs. PoUak, short effect of which I take to be 107 Ala. 547; 19 South. 180; Sim- that, as between co-sureties, there is mons vs. Camp, 71 6a. 54; Keiser to be equality of the burden and of vs. Beam, 117 Ind. 31; 19 N. E; the benefit If that be the 534; Neely vs. Bee, 32 W. Va. 519; case, it follows that each surety 9 S. E. 898; Barge vs. Van Der must bring into hotchpot every bene- Horck, 57 Minn. 497 ; 59 N. W. 630; fit which he has received in respect Hoover vs. Mowrer, 84 Iowa 43; 50 of the suretyship which he under- N. W. 62; Fuller vs. Hapgood, 39 took, and if he has received a bene- Vt. 617; Teeter vs. Pierce, 11 B. fit by way of indemnity from the Mon. 399; Scribner vs. Adams, 7'? principal debtor, it appears to me Me. 541; Smith vs. Conrad, 15 La. that he is bound, as between himself Ann. 579. EIGHTS AND EEMEDIES. 529 be entitled to have credited to them a share in the indemnity furnished the earlier sureties.^*" If one is surety for several debts of the same principal and holds indemnity for his liability, each of the several sets of co-sureties are entitled to off-set a pro rata share of the in- demnity against a claim for contribution.^^" The fact that the surety paying ovsres the principal does not put him in the situation of one holding indemnity, and consti- tutes no defense to an action for contribution/^^ Where one or more sureties have been indemnified, and the indemnity furnished is released or restored to the principal, it will constitute a defense to the action of such surety for con- tribution to the extent of the ascertained value of the security."^ The same rule applies if the surety by his negligence causes the indemnity to be lost or wasted.^^^ Where judgment was entered against the principal for the debt, and one co-surety became the purchaser of property of the principal taken in execution to satisfy such judgment, it was held that in an action for contribution he must account to 1*9 Farmers Bank vs. Teeters, 31 excess of the proportion properly ap- 0. S. 36. plieable to the debt which had been 160 Mueller vs. Barge, 54 Minn. paid in full, and it was held that the 314; 56 N. W. 36; Brown vs. Bay, surety who was thus called upon to 18 N. H. 102. refund his indemnity, might recover See also Wilson vs. Stewart, 24 0. in contribution from the co-surety S. 504. In this case a surety held a who was exonerated by the original mortgage of indemnity to secure him application of the indemnity, against loss by reason of his surety- Contra — Titcomb vs. McAllister, Bhip in several transactions, in each 81 Me. 399; 17 Atl. 315. of which he had co-sureties. He ap- isi Davis vs. Toulmin, 77 N. Y. plied a part of the indemnity in full 280. settlement of one debt, thus com- But see Bezzell vs. White, 13 Ala. pletely exonerating his co-sureties 422. in that transaction, and the balance 152 Paulin vs. Kaighn, 29 N. J. L. of the indemnity he applied pro rata 480. upon the other debts. The co-sure- iss Steele vs. Mealing, 24 Ala. ties upon the debts not settled in 285; Frink vs. Peabody, 26 111. App. full, paid the deficiency, and recov- 390; Chilton vs. Chapman, 13 Mo. ered from the indemnified surety so 470, much of the indemnity as was in 530 THE LAW OF STJEETTSHIP. his co-sureties for the real value of the property without regard to the price at which he had bid it in at the execution sale/'* The surety is not barred from his remedy in contribution merely by the fact that he holds security/'^ and there can be 154 Sanders vs. Weelburg, 107 Ind. 266 ; 7 N. E. 573, Homk, C. J. . " It is claimed on behalf of the appel- lant, that he purchased the property of the principal in the judgment, at public sales thereof by the sheriff of the county, where all parties, the appellee included, had the right to appear and bid therefor ; that he had the lawful right to purchase such property, at such sales, and as no one would or did bid more therefor than he, to purchase the same at and for the amount of his several bids, without regard to the actual value thereof; and that, having so pur- chased such property, he cannot be required to account therefor even to the appellee, as his co-surety, at its actual value, or at any greater value than the aggregate amount of his several bids. . . . Appellant, having fully paid and satisfied the judgment to the judgment creditor or plaintiff, by means of such pay- ment, acquired at the time a cause of action against the appellee, as his co-surety in such judgment; but in his suit on such cause of action, it is clear, we think, that under our law he could not recover of the ap- pellee any more than she was ' equi- tably bound to pay.' Prima facie, ap- pellee as the co-surety of appellant was liable to him for one-half of the sum paid by him to the judgment plaintiff, in satisfaction' of such judgment; but this prima facie li- ability was subject to reduction by whatever sum could be realized from the property of the principal in such judgment. The property of the prin- cipal in the judgment was a common fund for the benefit and protection of both the sureties alike, the ap- pellee as well as the appellant. . . . . We do not decide, in this case, that appellant did not have the right to sue out execution on the judgment, and procure the sale by the sheriff of the principal's proper- ty; for this right he clearly had. What we do decide is that if the ap- pellant, at such sales, purchased the property of the principal, at com- paratively nominal prices, and then sued his co-surety for contribution, she had the right, in bar of such suit, to show, as she did, that such property, at its fair value, was more than sufficient to satisfy such judg- ment." 155 Williams vs. Eiehl, 127 Cal. 365 ; 59 Pac. 762, Cooper, C. : " Why should the plaintiff, in an action for contribution, after having paid out his money, be compelled to wait un- til he can realize upon some col- lateral indemnity which may require years, while his co-surety, who was as much bound in law and morals as himself by the bond, has paid noth- ing? This would not make the bur- dens of the co-sureties equal. The indemnity is for the benefit of one co-surety as much as for the other, no matter which holds it. Either one could apply to the court for its sale, or to enjoin a wrongful disposition of it. The burden of finding a market for it and applying its value toward the debt of the principal should be borne by one as well as the other. There is no reason why BIGHTS AND EBMEDIES. 531 no off-set on account of the indemnity unless its value is ascer- tained, either by reducing it to money or otherwise. Where the surety has indemnity to secure his liability in suretyship and also to secure a debt owing him by the prin- cipal, the equity of his co-sureties in the indemnity is superior, and he cannot apply the security to his own debt without re- leasing his claim for contribution.^^" §292. Surety may enforce contribution even though payment by him was without compulsion. Whenever the debt maUures a surety may pay the same and enforce contribution, even though no demand is made upon him by the creditor. It is not necessary to wait for the liabil- ity to be fixed by judgment, nor for suit to be started or threatened. If a breach of the principal contract has occurred so that action might be maintained on the suretyship undertaking, a payment by the surety or guarantor is not voluntary. ^^' But if the surety paying might have successfully resisted the claim, the payment must be considered voluntary, and contribu- tion will not be allowed. Thus where a judgment creditor was enjoined from levying execution upon the property of a stran- ger to the judgment, and after dissolution the surety upon the injunction bond paid the judgment without any adjudication against himself, it was held that the payment was voluntary, and that he could not recover contribution from his co-sureties as there was no liability on the bond to pay the judgment, but the co-surety who has paid the debt i^e Sherman vs. Foster, 158 N. Y. of his principal should assume the 587; 53 N. E. 504. burden of disposing of the indem- But see Sanders vs. Wertermark, nity, and the additional burden of 20 Tex. Civ. App. 175 ; 49 S. W. 900. ■waiting until it is disposed of, be- isf Martin vs. Ellerbe's Admr., 70 fore he can receive from his co-sure- Ala. 326 ; Bradley vs. Burwell, 3 ty his proportion." Denio (N. Y.) 61; Hichborn vs. Mosely vs. FuUerton, 59 Mo. App. Fletcher, 66 Me. 209 ; Skrainka vs. 143; Johnson vs. Vaughn, 65 III. Eohan, 18 Mo. App. 341 ; Hardell vs. 425. . Carroll, 90 Wis. 350; 63 N. W. 275; But see Morrison vs. Taylor, 21 Glasscock vs. Hamilton, 62 Tex. 143. Ala. 779. Contra — Stockmeyer vs. Oertling ."..") La. Ann. 467. 532 THE LAW OF SUEETYSHIP. merely to respond in damages if it should turn out that the property sought to be reached in execution was the property of the judgment debtor/^* So also if the claim against the surety is barred by the stat- ute of limitations, its payment will be voluntary, and recovery cannot be had in contribution against the co-surety. ^^° If one surety pays a note which is void on account of usury he cannot recover contribution/'" Where a surety pays to prevent a default by the principal, he cannot thereafter recover from his co-sureties in contribu- tion. Such voluntary payment extin'guishes the principal con- tract and prevents the occurrence of the condition which fixea a liability upon the sureties. ^°^ 168 Halsey vs. Murray, 112 Ala. 185; 20 South. 575. See also Nixon vs. Beard, 111 Ind. 137; 12 N. E. 131. 159 Dussol VS. Bruguiere, 50 Cal. 456 ; Maehado vs. Fernandez, 74 Cal. 362; 16 Pac. 19; Hatchett vs. Pe- gram, 21 La. Ann. 722; Turner vs. Thorn, 89 Va. 745; 17 S. E. 323; Hooper vs. Hooper, 81 Md. 155; 31 Atl. 508; Godfrey vs. Rice, 59 Me. 308 ; Green vs. Milbank, 56 How. Pr. 382. But see Jones vs. Blanton, 6 Ired. Eq. (N. C.) 115. Bright vs. Lennon, 83 N. C. 183. Holding that a surety is not barred from contribution by failure to plead the statute of limitations. It is also held that a surety may waive a defense, such as the altera- tion of the principal contract, with- out impairing his right of contribu- tion. Houck vs. Graham, 106 Ind. 195; 6 N. E. 594. 160 Russell vs. Failor, 1 O. S. 32'V. In this case the surety paying had knowledge of the usury but the de- cision does not appear to turn upon that fact. But see Warner vs. Morrison, 3 Allen, 566, Bigelow, J.: "It does not appear that the plaintiflf had knowledge that there was any usu- rious and corrupt agreement between the payee of the note and the prin- cipals. Without such knowledge he could make no defense. If the hold- er of the note had sued him, he could not have successfully resisted his liability for the balance due up- on it, unless he knew that a for- feiture of part of the debt had been incurred by usury. His voluntary payment of the note after its ma- turity was therefore in compliance with the terms of the contract into which he had entered, and creates a valid claim for contribution. A surety having no defense, is bound to pay the debt. He is not obliged to incur the costs of defending an ac- tion. If he does, he cannot recover such costs of his co-surety, unless authorized by him to make a defense to the suit." isiLadd vs. Chamber of Com- merce, 37 Oreg. 49; 60 Pae. 713; 61 Pac. 1127; 6^ Pac. 208. A loan of a. large sum was made by The Cham- ber of Commerce of Portland to en- able it to erect a building; thirteen EIGHTS AND EEMEDIES. 533 Where one obligor pays the debt before maturity at the re- members of the organization guaran- teed the repayment of the loan in the form of a bond to the creditor conditioned that the building would be completed according to plans, and all liens and other claims paid, and a sinking fund created and main- tained sufficient to retire the loan as it matured. To prevent default in the terms of this bond certain of the sureties advanced money borrowed from banks on their personal in- dorsement, and thereafter brought this action in contribution against ihe other co-sureties. Bean, J. . " The agreement of the sureties is, in legal effect, to pay to the insurance company such dam- ages as it might sustain in case of a breach thereof by their principal. They did not obligate themselves to perform such conditions. That was a contract and duty of the principal alone, and the sureties were only liable to the obligee in case it failed to perform them Their li- ability was to the insurance com- pany alone, and there is neither al- legation nor proof that it ever made or had any claim for damages under the bond. But it is argued a breach of the bond and consequent damages to the insurance company would have occurred if certain of the sure- ties had not pledged their individual credit for money with which to com- plete the building The finance committee, composed princi- pally of sureties on the bon^ seems to have voluntarily borrowed the money, and paid the obligations of the Chamber of Commerce upon their own responsibility, and without con- sulting the principal. But, assum- ing that, if they had not done so, there would have been a, breach of the bond, it does not follow that the action of a part of the sureties in borrowing money for the Chamber of Commerce to use in the construction of the building would bind a non- participating surety. The borrowing sureties could determine for them- selves the necessity or desirability of doing so, but they had no authority to determine that question for Hughes, and bind him by their acts. There was no agreement between the sureties by or under which such au- thority was granted, nor anything in the bond authorizing one surety to act in this regard for another, or the majority for all. Bach surety had a right to stand upon the letter of his contract, and, in ease of a breach or threatened breach of the bond, to exercise his own judgment as to whether it was better for him to suffer default and answer in damages to the 'obligee in the bond, or to become liable on a new obliga- tion. His co-sureties could not de- termine that question for him. . . . . There is no contractual relation between sureties enabling one to dis- charge a common obligation at his own pleasure and in his own way, and thereby bind the other. . . Now, in this case, there was no breach of the bond, and no claim for damages thereunder was ever made by the insurance company. Had a. claim matured on the bond in favor of the insurance company, and been paid by part of the sureties, they might, perhaps, compel contribution from the non-paying sureties with- out the recovery of a judgment for breach of the bond, by making it ap- pear that they had no means of pre- venting a judgment against them. But they could not voluntarily bor- 634 THE LAW OP SUEETTSHIP. quest of his co-obligor he may have contribution,"" but if the • agreement has been made between co-sureties to pay in certain proportions, and thereafter one pays the whole, it is held that the one paying isi not entitled to contribution.^^' Judgment against one surety is prima facie evidence of de- fault by the principal, as against the co-surety liable in con- tribution,^"* but not conclusive.^"^ §293. Contribution as affected by the release of one of several co-sureties. If the creditor releases one co-promisor in suretyship the re- maining promisors may claim their discharge to the extent of the contributory share of the one released.^®" But it is held that if the remaining surety pays the entire debt, waiving the discharge which he might claim by reason of the act of the cred- itor, that he may enforce contribution against the one released by the creditor.^"^ If a surety releases one of his co-sureties from his liability to contribute, the aliquot part of the surety released cannot be recovered frora the remaining obligors, but in all other re- spects his right of contribution is unaffected.^"* The fact that the creditor failed to recover against one co- surety in a joint action against both sureties does not bar the surety who was. compelled to pay from enforcing contribution from the one against whom the creditor failed to recover.^"" row money for their principal, and I'THill vs. Morse, 61 Me. 541; bind a, non-participating surety." Clapp vs. Rice, 15 Gray 557. But see Bottoms vs. Leonards, 21 i^s Currier vs. Baker, 51 N. H. Ky. L. Rep. 862; 53 S. W. 273. 613; Murphy vs. Gage, 21 S. W. , ie2Golsen vs. Brand, 75 111. 148. (Tex. Civ. App.) 396. 163 Curtis vs. Parks, 55 Cal. 106. isaKoelsch vs. Mixer, Adm'r, 52 164 Breckinridge vs. Taylor, 5 O. S. 207; 39 N. E. 417. This case Dana (Ky.) 110. arose upon a bond of a, treasurer. 165 Kramph vs. Hatz, 52 Pa. 525 ; In a joint action against the sure- Cathcart vs. Foulke, 13 Mo. 561; ties judgment was had against one Briggs vs. Boyd, 37 Vt. 534; Bab- but in favor of the other. The one cock vs. Carter, 117 Ala. 575; 23 recovered against paid the judgment South. 487. and brought this action in contribu- 166 Ante Sec. 114. tion against the other. BIGHTS ASTD EEMEDIES. 535 Where one co-promisor is released as to the creditor by oper- ation of law, such as a discharge by the statute of limitations, if the remaining obligors are bound, and pay the debt, they may recover in contribution from the one against whom the creditor is barred/'" §294. Bankruptcy of a surety — Effect on co-surety's right of contribution. The National Bankruptcy Act of 1898 makes no direct pro- vision respecting the contingent liability of a co-surety for con- tribution. The general provision under which the liability may be classified if it is included at all, is that all debts are provable that are founded upon contracts " express or im- plied." The term " implied contract " is not defined in the aet."^ The discharge of a co-surety in bankruptcy under this act Minshall, J. : " The mere fact that it was there determined that he was not liable on the bond to the obligee, cannot conclude the plaintiff in this action from demanding contribution from the estate of his deceased co- surety, if, as a matter of fact, they were co-sureties on the bond, and the plaintiff has been compelled to dis- charge all, or more than his just proportion, of the common liability. The subject matter of the two ac- tions is different. The former was a suit on a treasurer's bond by the obligee against the makers as co- defendants to recover for a breach of it. The present is a suit by one surety on the bond against the estate of another for contribution; and had not accrued at the time of the former suit. It is not based upon the bond It is not enough that an issue may have been joined between the obligee and the defend- ant, as to the liability of the latter on the bond. Whatever that issue may have been, it was not an issue between himself and his co-defend- ant, the plaintiff in this action, and could not therefore conclude the lat- ter; though parties to the suit they were not such in an adversary char- acter, being simply co-defendants to the suit on the bond." See also Hoxie vs. National Bank, 20 Tex. Civ. App. 462; 49 S. W. 637. Contra — Hood vs. Morgan, 47 W. Va. 817; 36 S. E. 911. I'D Cawthorne vs. Weisinger, 6 Ala. 714; Camp vs. Bostwick, 20 0. S. 337; Martin vs. Frantz, 127 Pa. 389; 18 Atl. 20; Aldrich vs. Aldrich, 56 Vt. 324; Faires vs. Cockerell, 88 Tex. 428; 31 S. W. 190, 639; Wil- liams vs. Ewing, 31 Ark. 229. See also Hill vs. Morse, 61 Me. 541. Contra — Cochran vs. Walker, 82 Ky. 220. 171 National Bankruptcy Act of 1898, Sec. 63 (a) (4). 536 THE LAW OF SURETYSHIP. raises a question of some difficulty where the payment by the other surety is subsequent to the discharge. In such a case it must be definitely determined, in order to dispose of the question, whether the liability to contribute arises upon an implied contract which dates from the making of the suretyship undertaldng, or whether the obligation to cou' tribute is an equity whidi arises for the first time when the other surety pays.^'^ Under the first construction the right of contribution must be barred, under the second it would not be. The earlier bankruptcy acts of this country and the English acts, contain broader provisions for contingent debts than the act of 1898, and the uncertain liability of a surety to contribute to his co-surety was deemed a provable debt under those acts.^'^ It may be doubted whether a contingent liability to contrib- ute as a co-surety is provable as a debt against a bankrupt surety in cases where no payment is made by the other surety until after the discharge of the bankrupt. i'2 The many and varying expres- vided for, the creditor may make sions of the courts in stating the claim therefor and have his claim nature of doctrine of contribution allowed, with the right to share in have been referred to in section 279. the dividends, if the contingency I's The act of 1841 contained a happens before the order for the provision which in general terms final dividend." described a liability such as is in- Under these acts it was held that curred by one co-surety to another, the contingent and uncertain claim before payment of the debt by either of a surety for contribution, depend- of them. It was provided that all ing first upon the contingency that persons " having uncertain or contin- the principal would make default, gent demands against such bankrupt and second that the other surety shall be permitted to come in and would pay, was a. provable claim in prove such debts or claims, under bankruptcy, and although the surety this act, and shall have a right, did not pay until after the discharge when their debts and claims become of his co-surety, yet the claim for absolute, to have the same allowed contribution was barred. them." Act of Aug. 19, 1841, Sec. 5. Tobias vs. Rogers, 13 N. Y. 59 The act of 1867 covered the claim (Law of 1841). In this case the of co-sureties for contribution in plaintiff and defendant were sureties these terms, Sec. 5068, " In all cases upon a replevin bond, and several of contingent debts and contingent years after the execution of the bond liabilities contracted by the bank- the defendant was adjudged a bank- rupt, and not herein otherwise pro- rupt. Five years after the defendant EIGHTS AST) REMEDIES. 537 §295. Contribution between parties to bills and notes. Aoeommodation indorsers are not entitled to contribution in the absence of special agreement to tbat effect. It may always be assumed that the later indorsers lend their name on the faith of the earlier indorsers as well as in reliance upon the maker. This assumption gives to the later party an advantage was discharged in baJikruptey the plaintiff was required to pay the penalty of the bond, and thereafter brought this suit for contribution, claiming the liability against the bankrupt to have arisen after his discharge. Oardiner, C. J. : " The effect of the discharge was to exonerate Rog- ers from his obligation incurred to the defendants in the replevin suit, by his execution of the bond in their' favor, as one of the sureties of Ma- honey and Trull. His liability as co- obligor with the plaintiff was ex- tinguished by operation of law; and from that jnoment he ceased to be a co-surety with him for a common liability or a common principal. . . . . The defendants in the replevin suit could have released one of the sureties with the assent of the other, leaving the latter sole guarantor of the performance of the contract of the principal. What the parties could do by agreement the law has done without it. When the sureties contracted for their principal, they knew that the National Legislature could, in the ease that has arisen, discharge either of them from the obligation thereby assumed, and that the right of contribution would cease with the liability to which it was antecedent. If the plaintiff is without remedy, it is by an act of the law to which he, in common with every other citizen, is presumed to .have assented." See also Eberhardt vs. Wood, 2 Tenn. Ch. 488 (Law of 1867). In this case the default of the principal occurred before the bank- ruptcy, but the payment by the sure- ty was after the bankruptcy of the co-surety. It was held, " The dis- charge was from the obligation as surety, and the inference is logical, that, afterwards, when the plaintiff paid the debt, there was no such relation between him and the defend- ant as would sustain a claim for contribution, that claim resting sole- ly on the relation of co-suretyship. And so it has been held and on this very ground, Tobias vs. Rogers, 13 N. Y. 59. It is argued, however, that although this may be true as to the creditor, yet the plaintiff had no debt or claim against the defendant, as his co-surety, uutil he paid the decree of the 19th of Jan. 1874, and could not, therefore, prove against the estate of the bankrupt in 1871. But the obligation had become fixed as a debt before the petition in bank- ruptcy, and the extent of that liabil- ity was ascertainable, and the pro- portion of such liability which such surety might be compelled to pay was contingent upon the ability of the principal. Every surety has a demand against his principal which is contingent upon his being com- pelled to pay any part of the debt, and such demand is provable. Every joint debtor has a, demand against his co-debtor, contingent upon his 538 THE LAW OF STJEETYSHIP. of which he cannot be deprived without his consent.^'* It is, however, competent to show by parol that the several indorsers agreed to maintain the relation of co-sureties. ^^° It is not necessary to show an express contract for contribu- tion. It will be sufficient if the circumstances indicate an in- tention to become co-sureties. Thus where a maker of a note asked three others to sign for his accommodation; before mak- ing the note he made the request of each one separately and each promised to sign if the others did. E'othing was said about the order in which they were to siga or in reference to being compelled to pay more than his share of the debtj and such de- mand is provable. It seems to fol- low logically that every surety has a demand against his co-surety, where the liability is fixed, contingent upon his being compelled to pay more than his share of the debt, and that demand is provable." Contra — Byers vs. Alcorn, 6 111. App. 39; Dunn vs. Sparks, 1 Ind. 397; Swain vs. Barber, 29 Vt. 292. The reasons upon which these cases rest are that a liability be- tween co-sureties does not exist as a matter of contract, but arises from a principle of equity ' growing out of the relation of the parties, and that it requires a payment to set on foot this equity, and that such claim does not attach contingently or otherwise till after payment by one co-surety of more than his share, and hence not being provable against the bankrupt, he is not discharged from it. The English Bankruptcy Act of 1883 provided, Sec. 37 (3) for a dis- charge from " all debts and liabil- ities, present or future, certain or contingent, to which the debtor is subject at the date of the receiving order." This was construed to include a liability for contribution where the solvent surety was called upon to pay after the discharge in bankrupt- cy of his co-surety. Wolmershausen vs. Gulliek, L. R., 2 Ch. Div. (1893) 514. "One de- fendant I have dismissed from the action on the ground that he is dis- charged by a composition under See. 18 of the Bankruptcy Act, 1883, in- asmuch as it appears to me that his liability to contribute, although not ascertained at the time of the bankruptcy proceedings, nor includ- ed in the schedule of liabilities or in the claims or proofs, and not a debt in respect of which an adjudica- tion of bankruptcy could have been sustained, was a liability within the meaning of Sec. 37 of the Act, and therefore a debt provable in bank- ruptcy." 174 McDonald vs. McGruder, 3 Pet. 470; McGurk vs. Huggett, 56 Mich. 187; 22 N. W. 308; Harrah vs. Doherty, 111 Mich. 175; 69 N. W. 242; Willis vs. Willis, 42 W. Va. 522; 26 S. E. 515; Harshman vs. Armstrong, 43 Ind. 126. 175 Easterly vs. Barber, 66 N. Y. 433 ; Preston vs. Gould, 64 Iowa 44 ; 19 N. W. 834; Kiel vs. Choate, 92 Wis. 517; 67 N. W. 431; Smith vs. Morrill, 54 Me. 48. EIGHTS AND KEMEDIES. 539 an obligation of contribution. It was held that the order of signing was immaterial, and that these circumstances indicated a mutual understanding that each was a joint obligor with the others."* By the provisions of the code in California, all indorsers whether regular or for accommodation are entitled, to contribu- tion."' §296. The right of indemnity against the principal. If the promisor in suretyship pays the debt of the principal in whole or in part, he is entitled to recover the amount paid from the debtor. If the principal makes no express promise to indemnify the one who engages, to answer for his debt or de- fault, the law will imply a promise. The right of indemnity springs from the equity that one should not be permitted to shift his burdens upon another mere- ly because the accommodating party, having no special interest in the transaction, has neglected to protect himself by contract. In the case of the promisor's right of indemnity, the courts have not troubled themselves over the proposition that where there is no express contract the right springs wholly from equity, and that therefore there is the same reason for holding that an action for indemnity is cognizable only in equity, as was so often held in the matter of contribution between co- sureties.^'^ From the time of the very earliest eases there has been a gen- eral acquiescence in the rule that a payment by a surety or guarantor for the account of their principal is presumed to be at the request of the latter, which raises an implied promise of reimbursement, upon which an action at law will lie.^'" I's Hagerthy vs. Phillips, 83 Me. In Stirling vs. Forrester, 3 Bligh, 336; 22 Atl. 223. 590, Lord Eldon indicated that he See also Mulcare vs. Welch, 160 had formerly had some doubt wheth- Mass. 58 ; 35 N. E. 97. er the surety could enforce the right 1^' California Civil Code, Sec. of indemnity by action at law as 1432; Bunker vs. Osborn, 132 Cal. upon implied contract. 480; 64 Pac. 853. I's Toussaint vs. Martinnant, 2 T. "s Ante See. 279. E. 100; Wood vs. Leland, 1 Met. 540 THE LAW OF SUEETTSHIP. A surety upon a bail bond, conditioned for the appearance of- a person charged with crime, has no right of indemnity against the principal for moneys paid upon a forfeited recogui- zance, except upon an express contract for indemnity. The law will not imply a contract between parties so related. The distinction appears to be that payment by a surety of the pen- alty of a bail bond does not discharge the obligation of the prin- cipal to appear, and no benefit being conferred by the pay- ment, a contract for reimbursement will not be implied, also, that liability upon a bail bond arises from the neglect of the surety in permitting the escape of the principal, and the surety is, in a sense, a wrongdoer, and it would be against public policy for the law to imply a promise of indemnity.^*" 387; Konitzky vs. Meyer, 49 N. Y. 571; Clay vs. Severence, 55 Vt. 300; Katz vs. Moessinger, 110 111. 372; Martin vs. EUerbe's Admr., 70 Ala. 326 ; Smith vs. Sayward, 5 Me. 504 ; Loughridge vs. Bowland, 52 Miss. 546; Cotton vs. Alexander, 32 Kan. 339 ; 4 Pac. 259 ; Hazletou vs. Valen- tine, 113 Mass. 472; Blake vs. Dow- ney, 51 Mo. 437; Hellams vs. Aber- crombie, 15 S. C. 110; Boyd vs. Brooks, 34 Beav. 7 ; Badeley vs. Con- solidated Bank, S4 Ch. Div. 536. If the principal makes an express contract of indemnity at the time the surety enters into the undertak- ing, the promise implied by law will be merged in the express agreement, and recovery will be limited to the terms of the latter. Roosevelt vs. Mark, 6 Johns. Ch. 266. But a special indemnity contract given by a stranger will not merge the contract implied by law. Wesley Church vs. Moore, 10 Pa. 273. ISO Jones vs. Orchard, 16 C. B. 614. Chipps vs. Hartnoll, 4 B. & S. 414, Pollock, G. B.: "Here the bail was given in a criminal proceeding ; and, where bail is given in such a pro- ceeding, there is no contract on the part of the person bailed to indemni- fy the person who became bail for him. There is no debt, and with re- spect tc the person who bails, there is hardly a duty." Consol. Co. vs. Musgrave, 1 L. R. Ch. Div. 37 (1900); United States vs. Ryder, 110 U. S. 729; 4 S. Ct. 196. Contra — Reynolds vs. Harral, g Strob. (S. C.) 87. It is held that it is against public policy to accept a bail bond in a criminal proceeding where there is a special contract of indemnity. United States vs. Simmons, 47 Fed. Rep. 575. See also Herman vs. Jeuchner, 15 Q. B. Div. 561, where it is held that a contract to indemnify against loss in becoming surety upon a bail bond is illegal. Brett, J. . " It is illegal, because it takes away the protection which the law affords for securing the good behavior of the plaintiff. When a man is ordered to find bail, and a surety becomes responsible for him, the surety is bound at his peril to EIGHTS AND REMEDIES. 541 Wtere the consideration for the suretyship contract is illegal, as where a public officer, in consideration that the surety will sign his bond, agrees to deposit public funds in the bank of the surety, no promise of indemnity will be implied, and in- demnity can not be enforced. ^''^ The law will not imply a promise against all who may have been benefited by the payment of the surety, but only against the one whose debt has been discharged. Where one member of a firm gave bond to the United States for the payment of duties on imported goods, and the surety was compelled to pay, it was held that he could not recover against the other partners upon an implied promise of indem- nity, even though the importations were by the partnershipj and the bond was given for the benefit of the firm.^*^ see that his principal obeys the order the bond. This implied promise was of the court; at least, this is the rule in the criminal lawj but if money to the amount for which the surety is bound is deposited with him as indemnity against any loss which he may sustain by reason of his principal's conduct, the surety has no interest in taking care that the condition of the recognizance is performed." 181 Eamsay's Est. vs. Whitbeck, 183 111. 550; 56 N. E. 322, Gart- wright, C. J.. "When a. surety signs a bond the law raises an im- plied promise by the principal to re- imburse the surety for any loss which he may sustain, and when a loss occurs this implied contract of indemnity relates back and takes ef- fect from the time when the surety became responsible. Under this rule, when the sureties signed the bond of Eamsay the law implied a promise on his part to indemnify and save them harmless from all loss which they might sustain by reason of such signing, and when they made up the deficit this implied promise related back to the date of perfectly lawful and legal, and it is said that if there was a separate promise on the part of Ramsay to keep the money in the banks it would not prevent a recovery by the sureties upon the lawful prom- ise to reimburse tuem. This argu- ment loses sight entirely of the consideration upon which Ramsay's promise rested The law will not enforce the lawful implied prom- ise of indemnity resting upon the illegal consideration that the banks would borrow money and pay inter- est on it." 182 Tom vs. Goodrich, 2 Johns. 213, Kent, O. J.: "There is no privity between the parties but what arises from the bond. It would be refining upon the doctrine of im- plied assumpsits, and going beyond every case, to consider the surety in a bond, as having, by that act, a remedy at law against other per- sons, for whom the principal in the bond may have acted as trustee." See also Moore vs. Stevens, 60 Miss. 809; Krafts vs. Creighton, 3 Rich. L. (S. C.) 273. 542 THE LAW OF SUEETTSHIP. It is held that where one member of a partnership executes his individual obligation for the benefit of the firm, and repre- sents to the surety that it is a firm debt, and requests him to sign on behalf of the firm, that the promisor thereby becomes a surety for the partnership, and a payment by the surety raises an implied promise against all the members of the firm.^'^ A surety for one of two or more joint obligors cannot recov- er indemnity from any except the particular debtor for whom he engaged, as where in a suit against several partners a bond is given by one partner, and the surety pays the judgment against all the partners, the implied promise of indemnity arises only as against one.^^* Promise of indemnity will not be implied where the surety or guarantor is a mere volunteer, and signs without request of the principal.^*^ If a verbal promise of suretyship is made at the request of the principal and the promisor pays, he may recover indemnity, although payment could not have been enforced against him by the creditor, by reason of the Statute of Frauds/^" 183 Purviance vs. Sutherland, 2 O. J. . " The Statute of Frauds can S. 478 ; MeKee vs. Hamilton, 33 0. not avail the plaintiflF, as an answer S. 7; Burns vs. Parish, 3 B. Mon. to the set-off. Although the verbal (Ky.) 8; Springs vs. McCoy, 122 N. guaranty was within it, and might C. 628; 29 S. E. 903; Garner vs. have been avoided if the defendant Hudgins, 46 Mo. 399. had seen fit to rely upon' the statute 184 Bowman vs. Blodgett, 2 Met. when called on by the plaintiff's 308; Yoder vs. Briggs, 3 Bibb. (Ky.) creditor for the payment of the debt, 228 ; Osborn vs. Cunningham, 4 Dev. the defendant was not bound to set & Bat. Law (N. C.) 423. it up. He had a, right to perform 185 Carter vs. Black, 4 Dev. & his parol undertaking. It was a con- Bat. Law { N. C. ) 425 ; Executors tract made on a good consideration, of White, 30 Vt. 336; McPherson vs. which the statute does not declare Meek, 30 Mo. 345. void or illegal, but only provides But see Teberg vs. Swenson, 32 that no action shall be maintained Kan. 224; 4 Pac. 83. upon it against the guarantor. But i86Beal vs. Brown, 13 Allen, 114. this enactment is exclusively for the In this ease the guarantor was debt- benefit of the guarantor, and is de- or of the principal, and when sued signed to protect him from the dan- he pleaded set-off on account of ger of being made liable for the money paid upon a, verbal guaranty debts of another by false testimony, for the plaintiff, YiAA—Biqelow, V. TTp, may elect to fulfill his verbal EIGHTS AND EEMEDIES. 543 §297. When riglit of indemnity arises. An implied contract to indemnify one who pays the debt of another arises at the time the suretyship is made. " Upon well settled principles, it is clear that the contract of a prin- cipal with his surety to indemnify him for any payment which the latter may pay to the creditor in consequence of the lia- bility assumed takes effeet from the time when the surety be- comes responsible for the debt of the principal. It is then that the law raises the implied contract or promise of indem- nity. Wo new contract is. made when the money is paid by the surety, but the payment relates back to the time when the contract was entered into by which the liability to pay was in- curred. The payment only fixes the amount of damages for ■which the principal is liable under his original agreement to indemnify the surety." ^^^ The relation of debtor and creditor between the principal and his accommodation promisor dates from the inception of the suretyship contract without regard to the time when the prom- isor pays,^°* and a surety or guarantor in the prosecution of his right of indemnity may have a fraudulent conveyance set aside, made by the principal prior to the payment.^*' But a cause of action against the principal does not arise until the promisor makes payment. ^°° It is not necessary to pay the entire debt ; an indemnity may promise, and, if he docs so and pays Child vs. Powder Works, 44 N. H. money in pursuance thereof, the 354; Hook vs. Rieheson, 115 111. principal debtor is liable for the 431; 5 N. E. 98; Davis vs. Hoopes, amount as for money paid at his 33 Miss. 173. instance and request. The Statute iss In re Stout, 109 Fed. Rep. 794. of Frauds can have no operation as iss Loughridge vs. Bowland, 52 between the original debtor and his Miss. 546; Hatfield vs. Merod, 82 guarantor.'' 111. 113; Bragg vs. Patterson, 85 ^^T Bigelow, C. J.: In Rice vs. Ala. 233; 4 South. 716; Anderson vs. Southgate, 16 Gray 142. Walton, 35 Ga. 202. See also Martin vs. EUerbe's Adm., But see Williams vs. Tipton, 5 70 Ala. 326; Harper vs. McVeigh, 82 Humph. (Tenn.) 66; Rice vs. Down- Va. 751; 1 S. E. 193; Polhill vs. ing, 12 B. Mon. (Ky.) 44. Brown, 84 Ga. 338; 10 S. E. 921; iM Stearns vs. Irwin, 62 Ind. ZoUickoiTer vs. Seth, 44 Md. 359; 558; Barth vs. Graf, 101 Wis. 27; 544 THE LAW OF SUEETTSHIP. be enforced upon part payment to the extent of the amount paid, and if the debt is paid by instalhnents, action may he brought for each instalhnent as it is paid.^°^ A cause of action for indenmity, in the absence of an ena- bling statute or express agreement, cannot arise before the ma- turity of the debt, although if payment is made by the surety or guarantor before maturity, it will constitute a ground for indemnity when the debt becomes due, and action can then be brought as if the payment had been made at tha!Niime. ^°^ The common law rule as to the time when action ^orindem-^ nity may be brought has in part been supeiseded' by statute in many of the states which provide for action before debt due whenever grounds exigt for the provisional remedy of attach- ment."' §298. Equitab];&'«U)neration. A Court of Equity has jurisdiction to compel the principal to exonerate the surety or guarantor at the maturity of the 76 N. W. 1100; Minick vs. Huff, 41 Neb. 516; 59 N. W. 795; Nally vs. Long, 56 Md. 567. It is held that where a surety holds as indemnity against his sure- tyship liability the note of a, third person, that he may ma^tain ac- tion upon such note as soon as the principal is in default, and need not first pay the debt. Klein vs. Funk, 82 Minn. 3; 84 N. W. 460. The Statute of Limitations runs against the right of indemnity from the time the surety or guarantor pays and the right of action is not affected by the date of the maturity of the debt. Thayer vs. Daniels, 110 Mass. 345; Harper vs. McVeigh, 82 Va. 751; 1 S. B. 193. iBi Bullock vs. Campbell, 9 Gill (Md.) 182; Hall vs. Hall, 10 Humph. (Tenn.) 352; Wilson vs. ■ Crawford, 47 Iowa 469. But see Jones vs. Trimble, 3 Eawle (Pa.) 381. i92Tillotson vs. Rose, 11 Met. 299; Armstrong vs. Gilchrist, 2 Johns. Cas. (N. Y.) 424; White vs. Miller, 47 Ind. 385; Ross vs. Mene- fee, 125 Ind. 432; 25 N. E. 545; Gol- sen vs. Brand, 75 111. 148 ; Felton vs. Bissell, 25 Minn. 15; Barber vs. Gill- son, 18 Nev. 89; 1 Pac. 452. issUptmoor vs. Young, 57 Ark. 528; 22 S. W. 169. The Code in Ohio provides. Sec. 5846 : " A sure- ty may maintain an action against his principal to obtain indemnity against the debt or liability for which he is bound, before it is due, whenever any of the grounds exist upon which an order may be made for arrest or for an attachment." EIGHTS AND REMEDIES. 545 debt, and it is not necessary that the promisor first pay any part of the debt himself, but the principal debtor who is ulti- mately bound for ithe debt may be required to discharge his obligation."* This is an application of the same principle of equity where- by a surety at the suit of his co-surety may be required by a decree in equity to pay his contributory share to the creditor. ^''° Where the principal has made a special covenant with hi,; surety that he will discharge the debt, the surety may maintain action on the covenant for his eixoneration without first paying the debt."° If the principal is insolvent and the surety holds securities belonging to the principal, equity will decree the application of the I securities in exoneration of the surety. ^^' §299. Right of indemnity arises from payment or transactions equivalent to payment. It is not necessary that the promisor in suretyship pay the debt in money in order to create a cause of action upon his im- plied contract of indemnity. Whatever is accepted by the creditor as a satisfaction of the principal obligation may be considered a substitute for actual payment, and entitles the promisor tO' his action for indemnity. If the creditor accepts the negotiable note of the surety or 19* Street vs. Chicago Co., 157 111. Ir. 181; Wooldridge vs. Norris, L. 605; 41 N. E. 1108; Keach vs. Ham- R., 6 Eq. 410. ilton, 84 111. App. 413 ; Neal vs. i95 Ante Sec. 287. Buffington, 42 W. Va. 327 ; 26 S. E. i98 Loosemore vs. Radford, 9 M. & 172; Hoppes vs. Hoppes, 123 Ind. W. 657; Lathrop vs. Atwood, 21 397; 24 N. E. 139; Meador vs. Mea- Conn. 116; Salmon Falls Bank vs. dor, 88 Ky. 217; 10 S. W. 651; Nor- Leyser, 116 Mo. 51; 22 S. W. 504; ton vs. Read, 11 S. C. 593; Beaver Lee vs. Burrell, 51 Mich. 132; 16 X. vs. Beaver, 23 Pa. 167 ; Bishop vs. W. 309 ; Gage vs. Lewis, 68 111. 604. Day, 13 Vt. 81 ; Harris vs. Newell, io7 McKnight vs. Bradley, 10 Rich. 42 Wis. 687; Dohie vs. Fidelity & Eq. (S. C.) 557. Casualty Co., 95 Wis. 540; 70 N. W. See also Mattingly vs. Sutton, 19 482; Hayden vs. Thrasher, 18 Fla. W. Va. 19; Sims vs. Wallace, 6 B. 795 ; Macfie vs. Kilanea, 6 Hawaiian Mon. (Ky.) 410; Scott vs. Timber- 440; Mathews vs. Saurin, L. R., 31 lake, 83 N. C. 382. 546 THE LAW OF SUEETTSHIP. guarantor/"^ or the note or other property of a third per- son,"" the surety may proceed at once against the principal, although the note is not paid. It is held that the delivery of a non-negotiable note or bond of the surety, although accepted in settlement of the debt, will not, before actual payment of the note or bond, constitute a cause of action for indemnity. ""' Although the law appears by the foregoing citations to be well established as stated, yet the payment with the negotiable note of the surety, or with any other medium except money or property, notwithstanding it results in the discharge of the principal by the creditor, does not bring the surety within the equities upon which the doctrine of indemnity is founded. The legal position of the surety is in no respect changed by the giving of the note or bond to the creditor. His liability in consequence thereof is no greater than his original liability as surety. If he evades payment on his note, either from insolvency or some defect in the note which renders it void, or because payment is not demanded within the statutory limitation, a recovery by the surety from the principal would be a fraud, as he would receive and retain money which rightfully belonged to the creditor, but which a rule of " equity " prevents the cred- itor from recovering from him. The anomaly of this position is further illustrated by the generally accepted view that the surety cannot speculate upon his relations to the principal, by making a compromise settle- ment with the creditor for less than the face of the debt, and 198 Barclay vs. Gooch, 2 Esp. 571; boatman, 49 Ind. 104; Sapp vs. Howe vs. Buffalo, N. Y. & Brie R. E. Aiken, 68 Iowa 699 ; 28 N. W. 24. Co., 37 N. Y. 297 ; Stubbins vs. mo Rodgers vs. Maw, 15 M. & W. Mitchell, 82 Ky. 535; Knightob vs. 444; Lord vs. Staples, 23 N. H. 448; Curry, 62 Ala. 404; Rizer vs. Callen, Hulett vs. SouUard, 26 Vt. 295; Mc- 27 Kan. 339; Bausman vs. Credit Vicar vs. Royee, 17 Up. Can. (Q. B.) Guarantee Co., 47 Minn. 377 ; 50 N. 529. W. 496 ; Stanley vs. McElrath, 86 200 Romine vs. Romine, 59 Ind. Gal. 449 ; 25 Pac. 16 ; Kellar vs. 346 ; Taylor vs. Higgins, 3 East. 169. EIGHTS AND EEMEDIES. 547 thereafter collect the full amount from the principal/"^ or re- cover more than the actual value of the property which he turns out to the creditor in settlement. ^"^ The result of the authorities therefore seems to be that if the creditor accepts in settlement the worthless note of the surety, the latter may nevertheless recover from the principal the full amount of the debt extinguished. But if the creditor accepts in settlement the land or other property of the principal for the entire debt^ whenr such property is worth only half the amount, the surety may have indemnity for only half the debt extinguished. The reasoning seems defective, wbich on the one hand gives recovery for the whole debt to the surety who parts with noth- ing, and on the other hand scales down his bargain and measures with great precision the value of that which he gives in settle- ment. §300. Amount recoverable by indemnity proceedings. A promisor in suretyship is entitled to full indemnity from tbe principal for all loss occasioned by the default of the latter, and may call upon him for reimbursement, not only for what he is required to pay in satisfaction of the debt, but also for all reasonable expenses incurred in the matter of the adjust- ment of his liability. 201 Reed vs. Norris, 2 Mylne & Child vs. Eureka Powder Works, 44 Craig, 361, Lord Gottenham, C: N. H. 354; Coggeshall vs. Ruggles, " It is on a contract for indemnity 62 111. 401 ; Delaware L. & W. K. R. that a surety becomes liable for the Co. vs. Oxford Iron Co., 38 N. J. Eq. debt. It is by virtue of that situa- 151; Price vs. Horton, 4 Tex. Civ. tion, and, because he is under an App. 526; 23 S. W. 501; Martin vs. obligation as between himself and Ellerbe's Admr., 70 Ala. 326; Mar- tha creditor of his principal, that he tindale vs. Brock, 41 Md. 571; is enabled to make the arrangement Thomas vs. Carter, 63 Vt. 609 ; 22 with that creditor. It is his duty Atl. 720 ; Cranmer vs. McSwords, 26 to make the best terms he can for W. Va. 412. the person in whose behalf he is act- 202 Bonney vs. Seely, 2 Wend. 481 ; ing." Feamster vs. Withrow, 12 W. Va. See also Stanford vs. Connery, 84 611 ; Kendrick vs. Forney, 22 Gratt. Ga. 731; 11 S. E. 507; Waldrip vs. 748; Jordan vs. Adams, 7 Ark. 348. Black, 74 Cal. 409; 16 Pac. 226; 548 THE LAW OF SURETYSHIP. Where an acconunodation indorser paid the notes of the prin- cipal and took an assignment of them and thereafter brought action on the notes, it was held that the indorser was entitled to recover from the principal the expenses incurred in the matter of the collection.^'"' If the surety is sued he may recover the costs of litigation from the principal.^"* Where a joint action is brought against The principal and surety there is additional justification for thp rule that the surety may recover costs of the principal. While the surety has the right to pay upon demand without suit, and recover indemnity from the principal, he is not obliged to settle in that way, and if the principal is also sued, payment by the surety may properly be withheld in th© hope that the creditor may be able to collect his claim by execution against the prop- erty of the principal.^'"' But litigation must be entered into in good faith, and upon reasonable- ground, in order to charge the principal with costs. Where the litigation is prolonged merely to gain an extension of time for payment, the expenses cannot be recovered.^"' A surety cannot in any event recover from the principal more than he has paid for his account. It is the amount of payment and not the amount of the debt extinguished which fixes the measure of recovery. " If the surety discharges the debt of his principal in whole or in part for any sum less than the full amount he so discharges, he can, in the absence of an express contract, recover from his principal only the amount actually paid by him. The implied contract in such case is that the surety shall b© indemnified only, and he will not be allowed to speculate out of his principal." ^°^ 203 Thompson vs. Taylor, 72 N. Y. aoe Whitworth vs. Tilman, 40 32. Miss. 76 ; Wynn vs. Brooke, 5 Rawle 204Hulett vs. Soullard, 26 Vt. 295 (Pa.) 106; Cranmer vs. McSwords, Downer vs. Baxter, 30 Vt. 467; 26 W. Va. 417. Backus vs. Coyne, 45 Mich. 584; 8 207 Mathews vs. Hall, 21 W. Va. N. W. 694; Gross vs. Davis, 87 Tenn. 510; Ante Sec. 299, and cases there 226; 11 S. W. 92. cited. 205 Apgar's Admr. vs. Hiller, 24 N. J. L. 812. EIGHTS AND REMEDIES. 549 If judgment is obtained against a surety and collected by execution upon his property, the principal cannot be charged ■with the costs upon the execution. It is the duty of the surety to pay the judgment, and the execution results from his own neglect.'"* No recovery can be had for damages resulting indirectly from the suretyship, such as inconvenience or loss in consequence of being obliged to sell property in order to raise money with which to pay the debt. Such disadvantages and possible losses are deemed waived by one assuming the liability. ^°° §301. Bight of indemnity as affected by the non-liability of the principal. A principal generally owes no duty of indemnity in those cases in which payment is made by the surety or guarantor upon claims for which the principal is not liable. But such rule will not be applied where the non-liability arises from causes which do not also afford a defense to the suretyship promisor. ^'■° If the principal is not liable, and in consequence of the same defects in the main contract the surety or guarantor might also maintain a defense, or where the statute of limitations applies to both, a payment by the latter under such circumstances will be deemed voluntary,^^^ but if the defense is not available to the 208 Pierce vs. Williams, 23 L. J. was held — " The plaintiff did not, Ex. 322; Newcomb vs. Gibson, 127 upon the trial, show any contract ot Mass. 396 ; Van Petten vs. Richard- promise of indemnity against trouble son, 68 Mo. 379; Beckley vs. Mun- or harm. He showed nothing more son, 22 Conn. 299. than that he had become surety on But see Kemp vs. Finden, 12 M. & a note for the defendant, and that W. 421 ; Van Winkle vs. Johnson, 11 having omitted to take it up when it Ore. 469 ; 5 Pac. 922. fell due, he had been sued and im- 209 Vance vs. Lancaster, 3 Hay- prisoned. This fact alone did not wood (Tenn.) 130. entitle him to recovery." See ^Iso Hayden vs. Cabot, 17 ^lo Gieseke vs. Johnson, 115 Ind. Mass. 169. 308; 17 N. E. 573. Powell vs. Smith, 8 Johns. 250. In 2" Hatehett vs. Pegram, 21 La. this case the surety was imprisoned Ann. 722 ; HoUinsbee vs. Ritchey, 49 for the debt of his principal and Ind. 261. sought recovery in damages and it Roe vs. Kiser. 62 Ark. 92 ; 34 S. 550 THE LAW OP SURETYSHIP. promisor, his right of indemnity is not impaired by the non- liability of the principal. Thus where the principal is deceased, and the creditor fails to make claim against his estate until after expiration of the statutory time within which such claims are required to be pre- sented, and the debt against the estate is accordingly barred, under these circumstances, if the surety remains liable and pays the debt, he may recover indemnity from the estate."^ Also where no claim is asserted by the holder of a note against the maker, but judgment is obtained against .the surety, who pays the judgment after the right of action by the holder against the maker, is barred by the statute of limitations, the surety may recover from the principal. ^^^ ■ It was held that where the claim against the surety was kept alive by special agreement for extension, but barred against the principal, the surety paying^ may recover indemnity."^* W. 534. In this case the note of the principal was void on account of usury, and the surety paid with knowledge of the defense. It was held that he was not entitled to in- demnity. 212 Sibley vs. McAllister, 8 N. H. 389; Hooks vs. Branch Bank, 8 Ala. 580; Marshall vs. Hudson, Adm., 9 Yerg. (Tenn.) 57; Miller vs. Wood- ward, Adm., 8 Mo. 169 ; Braught vs. Griffith, 16 Iowa 26. 213 Godfrey vs. Rice, 59 Me. 308; Reid vs. Flippen, 47 Ga. 273, Mc- Gay, J. : " The holder had the right to sue all or either of the parties to it, at his pleasure. He saw fit, before the statutory bar attached, to sue the securities only. This he had a right to do, by the very terms of the contract; nor has it ever been held that it is any wrong to the principal to fail to bring suit against him at the same time as suit is brought against the surety. .... Does the faqt that, since the bringing of the suit, the statute oj limitations has barred a suit by the plaintiff against the principal de^ stroy the right against the seeu> rities! The foundation of all the rules discharging the surety for acts or neglect of the creditor is, that these acts have injured the surety. And if the neglect of the creditor to sue the principal until the statutory bar attaches so operat- ed as to injure the surety, I should hesitate to hold the surety bound. But in our opinion, the attaching of the statutory bar between the prin- cipal and the creditor does not in- jure the security. If he be still bound and has the debt to pay, the right to recover the money paid out of the principal still exists, notwith- standing the note, the obligation to the creditor, be barred." ' • See also Walker, Adm., vs. Lath- rop, 6 Iowa 516; Bullock vs. Camp- bell, 9 Gill (Md.) 182. 214 Norton vs. Hall, 41 Vt. 471. BIGHTS AND EEMEDIES. 551 If the principal might have successfully defended against the debt on account of a failure of consideration, and the surety pays without request from the principal, without judgment being entered against him, he cannot recover indemnity from the principal.^^° Where the creditor releases the principal and recovers from the surety, the latter may recover from the principal. ^'° It is held that where the debt rests upon some illegal consider- ation, such as a note executed in settlement of a wager, that the surety paying cannot charge the principal by way of in- demnity since the principal himself is not liable on the note.^^' Where the non-liability of the principal results from a want of capacity to make the contract the surety paying cannot en- force indemnity. " There is no doubt of the rule, that the principal is responsible to the. surety for any liability incurred by the surety at the request of the principal. But that rule is subject to exceptions. A surety for an idiot, infant, feme coveri, etc., may be liable when the principals are not liable either to the obligee or to him. So a surety for a corporation in a transaction where the corporation has not the power to con- tract, may be liable when the corporation is not. And a corpo- ration may exceed its powers, when there is no moral turpitude ; as a Board of County Commissioners contracting a debt to build a church, a very praiseworthy object; but still, it is beyond their power; and they would not be bound while their surety would be." "« §302. Right of indemnity as affected by the non-liability of the surety or guarantor. If a promisor in suretyship pays the debt when he might have avoided payment by asserting defenses sufficient for his 2i5Sponhaur vs. Malloy, 21 Ind. (N. Y.) 396; 60 N.,Y. S. 974; af- App. 287 ; 52 N. E. 245. If the sure- firmed 168 N. Y. 590; 60 N. E. ty pays without notice of the failure 1113. of consideration he may recover from , 2i7 Harley vs. Stapleton's Adm., the principal. 24 Mo. 248. Gasquet vs. Oakey, 19 La. 76. 218 Davis vs. Board of Commis- zisHyde vs. Miller. 45 App. Div. sioners of Stokes Co., 72 N. C. 441. 552 THE LAW OF SUEETYSHIP. exoneration, he may nevertheless recover his indemnity of the principal, if the creditor might in any manner have enforced the claim against the principal. One collaterally bound for the accommodation of another may frequently evade his liability for reasons v^hich in no way affect the liability of the principal, and the waiver of such de- fenses does not change his attitude toward the' principal debtor. This may be illustrated by the case of an accommodation in- dorser who is entitled to demand and notice as a condition of his liability. If such conditions are not complied with, and he pays the note, he can nevertheless recover from the principal upon his implied contract of indemnity/^* The same is also true where the statute of limitations has run against the surely but not the principal maker of a note.^^° Where a surety held a mortgage upon the land of the princi- pal as indemnity against his suretyship, and paid the debt when he might have defeated the claim by pleading the statute of 219 Stanley vs. MeElrath, 86 Cal. 449; 25 Pac. 16. Contra — Sleigh vs. Sleigh, 5 Ex. 514, Parke, B.: "Now there is no doubt, that, if a person lends his name to another for his accommo- dation, the party accommodated un- dertakes to pay the bill at maturity, and further, to indemnify the person accommodating him, in case that person is compelled to pay the bill for him; and this, no doubt, is an implied authority to such person to pay it, if he be in that situation that he may be compelled by law to pay the bill, though the holder do not actually compel him to do so; and after payment he may sue the party accommodated for money paid on his account; for such payment is, in truth, under the implied authority given by the contract of accommo- dation between the parties ; and whether this be a payment of the whole bill, or of only a part of it, makes no difference. But fhe de- fendant, as the person accommodat- ed, has not, we think, undertaken to indemnify the plaintiff against the consequences of any payment which the plaintiff may voluntarily make with knowledge of the circum- stances. Whether it is so in eases in which the legal obligation has been discharged by circumstances un- known to him, as for instance, by the creditor having given time to the principal debtor without his knowl- edge, it is unnecessary to determine ; but where a payment is made, as in this case, with the knowledge on the part of the plaintiff that he was not bound to pay, for the want of a notice of dishonor, to which he was unquestionably entitled, we think the payment is not made with the implied authority of the defendant." 220 McClatehie vs. Durham, 44 Mich. 435; 7 N. W. 76. EIGHTS AND REMEDIES. 553 limitations, it was held that the surety could not enforce his mortgage security as against third parties asserting liens upon the property, as such lienors might maintain any defense to the debt that the surety could have interposed. ^^^ §303. When judgment against the surety or guarantor is con- clusive as to the right to recover indemnity. If the surety is sued with the principal, or if when sued alone notice is given the principal, and the surety pays the judg- ment, such judgment is conclusive against the principal as a basis of recovery in an action for indemnity. ^^^ It has been held that where the principal had no notice of the action against the surety, that a judgment by default against the surety entitles him to recover indemnity even though the principal had a complete defense, and by separate suit against him the creditor failed to recover. ^^^ A judgment by default against the surety will generally be binding on the principal, except where the surety omits to make defense under circumstances that would charge him with negli- gence or bad faith.^^* §304. Indemnity as affected by the bankruptcy of the principal. Under the ISTational Bankruptcy Act of 1898 the discharge of the principal in bankruptcy does not discharge the surety,^^^ and the liability to indemnify a surety or guarantor, is, by the terms of the act made a provable claim against the estate of the bankrupt. " Whenever a creditor whose claim against a bankrupt estate is secured by the individual undertaking of any 221 May vs. Ball, 21 Ky. L. Rep. 224Doran vs. Davis, 43 Iowa 86. 1673; 56 S. W. 7. 225 National Bankruptcy Act, Sec. 222 Hare vs. Grant, 77 N. C. 203; 16 (a) : "The liability of a person Littleton vs. Richardson, 34 N. H. who is co-debtor with, or guarantor 179; Rice vs. Kiee, 14 B. Mon. (Ky.) of or in any manner a surety for, a 335; Konitzky vs. Meyer, 49 N. Y. bankrupt shall not be altered by the 571. discharge of such bankrupt." 223 Stinson vs. Brennan, 1 Cheves Law (S. C.) 15. 554 THE LAW OP SUEETYSHIP. person, fails to prove such, claim, such person may do so in the creditor's name." ^^^ The liability for indemnity being a provable debt against the bankrupt, the discharge therefore, bars the right of recovery except out of the assets of the estate, even though payment by the surety is not made till after the discharge. ^^^ 226 Sec. 57 (i). 227 Mace vs. Wells, 7 How. 272. This case arose under the bankrupt- cy act of 1841 in which provision was made for proving the contingent claims of sureties. The language of the act was " Sureties, indorsers, bail, or other persons having uncer- tain or contingent demands against such bankrupt, shall be permitted to come in and prove such debts or claims imder this act." It was held that although the cause of action arose after the discharge in bank- ruptcy, it was nevertheless such a contingent demand as might have been proved against the estate, and was therefore barred. See also Liebke vs. Thomas, 116 U. S. 605; 6 S. Ct. 496; Lipscomb vs. Grace, 36 Ark. 231; Noland vs. Wayne, 31 La. Ann. 401; Hunt va. Taylor, 108 Mass. 508; Crafts vs. Mott, 4 N. Y. 603. But see Thayer vs. Daniels, 110 Mass. 345. This case arose under the insolvency laws of the State of Massachusetts, which made no pro- vision for proving a contingent li- ability against the estate of the in- solvent, and it was held that where payment was made by the surety after the discharge, the surety could recover indemnity from the princi" TABLE OF CASES. (References are to sections.) Abel vs. Alexander, 45 Ind. 523, Sec. 83. Abbott vs. Brown, 131 111. 108, Sec. 117. vs. Williams, 15 Colo. 512, Sec. 222. Ackerly vs. Parkinson, 3 Maule & Selwyn 411, Sec. 185. Acer vs. Hotchkiss, 97 N. Y. 402, Sec. 261, 271. Acers vs. Curtis, 68 Tex. 423, Sec. 289. Adams vs. Blethen, 66 Me. 19, See. 135. vs. Drake, 11 Cush. 504, See. 266. vs. Flanagan, 36 Vt. 400, Sec. 281. vs. Gilchrist, 63 Mo. App. 639, Sec. 205. vs. Gomila, 37 La. Ann. 479, Sec. 225. vs. Huggins, 73 Mo. App. 140, Sec. 9. vs. Hayes, 120 N. C. 383, See. 290. vs. Jones, 12 Pet. 207, Sec. 65. vs. Jacoway, 34 Ark. 542, Sec. 223. vs. Olive, 57 Ala. 249, Sec. 211, 212. vs. People, 12 111. App. 380, Sec. 247. vs. Thompson, 18 Neb. 541, Sec. 208. Adler vs. State, 35 Ark. 517, Sec. 104, 249. Administrator vs. McKowen, 48 La. Ann. 251, See. 171. Ady vs. Freeman, 90 Iowa 402, Sec. 214. Addison vs. State, 14 Tex. App. 568, Sec. 248. JEtna, Life Ins. Co. vs. American Surety Co., 34 Fed. Rep. 291, Sec. 141, 147, 257. vs. Mabbett, 8 Wis. 677, Sec. 15, 106. vs. Middleport, 124 U. S. 534, Sec. 276. .^na Nat. Bank vs. Winchester, 43 Conn. 391, Sec. 74. .iEtna Co. vs. Fowler, 108 Mich. 557, See. 107. vs. Thompson, 68 N. H. 20, Sec. 261. Mna, Ins. Co. vs. Wires, 28 Vt. 93, Sec. 268. Agnew vs. Bell, 4 Watts (Pa.) 32, See. 279. Aiken vs. Leathers, 37 La. Ann. 482, Sec. 214. Allen vs. Berryhill, 27 la. 534, Sec. 104. vs. Brown, 5 Lans. (N. Y.) 511, Sec. 214. vs. Commonwealth, 90 Va. 356, Sec. 246. vs. Danielson, 15 E. I. 480, Sec. 269. vs. Houlden, 6 Bev. 148, Sec. 105. vs. Kellam, 94 Pa. 253, Sec. 198, 200. vs. Morgan, 5 Humph. (Tenn.) 624, Sec. 11. 555 556 TABLE OF CASES. (References are to sections.) Allen vs. Marney, 65 Ind. 399, Sec. 74, 109, 145. vs. O'Donald, 23 li'ed. Rep. 573, Sec. 98, 99. vs. Powell, 108 111. ,584, Sec. 266. vs. Rightmere, 26 Johns. 365/ Sec. 67'. vs. Bundle, 50 Conn. 9, Sec. 63. vs. Ramey, 4 Strob. Law (S. Ca.) 30, Sec. 178. vs. Sharpe, 37 Ind. 67, Sec. 97. vs. State, 6 Blackf. (Ind.) 252, Sec. 173. vs. State, 61 Ind. 268, Sec. 175. vs. Thompson, 10 N. H. 32, Sec. 41. vs. Woodard, 125 Mass. 400, Sec. 118. vs. Wood, 3 ired. Eq. (N. C.) 386, Sec. 279. Aldricks vs. Higgins, 16 Serg. & R. 212, Sec. 18, 60. Aldrieh vs. Ames, 9 Gray 76, Sec. 34. vs. Aldrieh, 56 Vt. 324, Sec. 279, 293. Alsop vs. Price, 1 Doug. 160, See. 100. Allies vs. Probyn, 2 Cromp. M. & R. 408, Sec. 93. Alexander vs. Byrd, 85 Va. 690, Sec. 114. ^ vs. Hutchinson, 9 Ala. 825, Sec. 221. vs. Jacoby, 23 0. S. 358, Sec. 218. Alford vs. Baxter, 36 Vt. 158, Sec. 114. Alcoy Ry. vs. Greenhill, 41 London Solicitors Jour. 330, See. 117. Alabama Nat. Bank vs. Rivers, 116 Ala. 1, Sec. 129. AUer vs. Aller, 40 N. J. L. 446, See. 140. Alger vs. Thacher, 19 Pick. 51, Sec. 156. Alexandria vs. Corse, 2 Cranch C. C. 363, Sec. 176. Albright vs. Mills, 86 Ala. 324, Sec. 181. Alber vs. Froelich, 39 0. S. 245, Sec. 202. Alliance Trust Co. vs. Stewart, 115 Mo. 236, Sec. 210, 214. Allison vs. Sutherlin, 50 Mo. 274, See. 261. Allegheny Valley R. Co. vs. Diekey, 131 Pa. 86, Sec. 263. Alabama Ins. Co. vs. Anderson, 67 Ala. 425, Sec. 272. • Ames vs. Poster, 106 Mass. 400, Sec. 39. vs. Huse, 55 Mo. App. 422, Sec. 262. vs. Maclay, 14 la. 281, Sec. 103, 194. American Surety Co. vs. Boyle, 65 O. S. 486, Sec. 280. vs. Nelson, 77 Minn. 402, Sec. 253. vs. Pauly, 170 U. S. 133, See. 255, 207. vs. Raeder, Assignee, 15 0. C. C. 47, Sec. 149. vs. Thurber, 121 N. Y. 655, Sec. 146. vs. Thurber, 162 N. Y. 244, Sec. 253. vs. United States, 127 Ala. 349, Sec. 260. American Invest. Co. vs. Marquam, 62 Fed. Rep. 960, See. 112. American Bonding & Trust Co. vs. Milwaukee Harvester Co., 91 Md. 733, Sec. 147, 162. American Bldg. & Loan Assn. vs. Waleen. .i2 Minn. 23, Sec. 149. American Telegraph Co. vs. Lennig, 139 Pa. 594, See. 150. TABLE OF CASES. (Eeferences are to sections.) Amicable Mut. Life Ins. Co. vs. Sedgwick, 110 Mass. 163, Sec. 150. Amherst Bank vs. Eoot, 2 Met. 522, Sec. 191. American Brewing Co. vs. Talbot, 125 Mo. 388, Sec. 198. Ammons vs. Whiteliead, 31 Misc. 99, Sec. 203. Amis vs. Bank of Ky., 8 La. Ann. 441, Sec. 213. Amick vs. Woodworth, 58 0. S. 86, Sec. 261. Amory vs. Francis, 16 Mass. 309, Sec. 269. Anderson vs. Anderson, 55 Mo. App. 268, Sec. 214. vs. Bellenger, 87 Ala. 334, See. 2, 20, 74, 151. vs. Blakely, 2 Watts & Serg. (Penn.) 237, Sec. 59. vs. Brown, 9 0. 151, See. 165. vs. Hayman, 1 H. Bl. 120, Sec. 36. vs. Meeker Co. Com'rs, 46 Minn. 237, Sec. 198.- vs. Mannon, 7 B. Mon. (Ky.) 217, Sec. 83. vs. Rhea, 7 Ala. 104, Sec. 198. vs. Spenee, 72 Ind. 315, Sec. 34. vs. Walton, 35 Ga. 202, Sec. 297. Andrews vs. Estes, 11 Me. 267, Sec. 160. vs. Smith, 2 C. M. & R. 627, See. 40. vs. Simms, 33 Ark. 771, Sec. 137. vs. Varrell, 46 N. H. 17, Sec. 117. Anthony vs. Capel, 53 Miss. 350, Sec. 102. Anaheim Co. vs. Parker, 101 Cal. 483, Sec. 106. Auniston Loan & Trust Co. vs. Stickney, 108 Ala. 146, Sec. 124. Anselm vs. Groby, 62 Mo. App. 421, Sec. 199. Annett vs. Terry, 35 N. Y. 256, Sec. 238. Apollinaris Co. vs. Venable, 136 N, Y. 46, Sec. 210. Applewhite vs. Shaw, 4 Humph. (Tenn.) 93, See. 268. Apgar's Admr. vs. Hiller, 24 N. J. L. 812, Sec. 284, 300. Ainot's Admr. vs. Symons, 85 Pa. St. 99, Sec. 8. Arnold vs. Bryant, 8 Bush (Ky.) 668, See. 8, 129. vs. Green, 116 N. Y. 566, Sec. 261. Arnot vs. Erie Ry. Co., 67 N. Y. 315, Sec. 11. Argus Co. vs. Mayor of Albany, 55 N. Y. 495, Sec. 28. Ardesco Oil Co. vs. No. Amer. Oil Co., 66 Pa. 375, Sec. 114. Archer vs. Shea, 14 Hun 493, See. 121. Armstrong vs. Cook, 30 Ind. 22, Sec. 136. vs. Gilchrist, 2 Johns. Cas. (N. Y.) 424, See. 297. Arbogast vs. Hays, 98 Ind. 26, See. 277. Armitage vs. Pulver, 37 N. Y. 494, See. 280. Ash vs. Abdy, 3 Swanst. 664, See. 25. Ashford vs. Robinson, 8 Ired. Law 114, See. 27, 66. Ashmore vs. Evans, 11 N. J. Eq. 151, Sec. 46. Ashley vs. Brasil, 1 Ark. 144, Sec. 199. Asevado vs. Orr, 100 Cal. 293, Sec. 209. Assignment of Kiehart, In re, 58 111. App. 91, Sec. 240. Atwood vs. Luster, 20 R. I. 660, Sec. 6. 557 558 TABLE 03r CASES. (References are to sections.) Atlanta National Bank vs. Douglass, 51 6a. 205, Sec. 73. Atlantic & Pacific Telegraph Co. vs. Barnes, 64 N. Y. 385, Sec. 107. Atlas Bank vs. Brownell, 9 E. I. 168, Sec. 107. Atty. Gen., In re, 14 Fla. 277, Sec. 168. Aultman & Taylor Co. vs. Gorham, 87 Mich. 233, Sec. 16. Austin vs. Boyd, 24 Pick. 64, Sec. 128. vs. Curtis, 31 Vt. 64, Sec. 86. vs. Dorwin, 21 Vt. 38, Sec. 93. vs. Gibson, 28 Up. Can. (C. P.) 554, Sec. 92. vs. Kichardson, 1 Gratt. 310, Sec. 20. vs. Raiford, 68 Ga. 201, Sec. 239. vs. Vrooman, 128 N. Y. 229, Sec. 185. Auchampaugh vs. Schmidt, 70 la. 642, See. 95, 113. Aultman vs. Hefner, 67 Tex. 54, Sec. 117. vs. Smith, 52 Mo. App. 351, See. 118. Augusta vs. Sweeney, 44 Ga. 463, Sec. 163. Avery vs. Miller, 86 Ala. 495, Sec. 127. vs. Eowell, 59 Wis. 82, Sec. 11. Averill vs. Louks, 6 Barb. 470, Sec. 23. Ayers vs. Dixon, 78 N. Y. 318, Sec. 23, 268. vs. Duggan, 57 Neb. 750, Sec. 204. vs. Harness, 1 O. 368, Sec. 109. vs. Toland, 7 Har. & John. (Md.) 3, See. 160. Baker vs. Briggs, 8 Pick. 123, Sec. 113. vs. Bryan, 64 la. 561, Sec. 149. vs. Belvin, 122 N. C. 190, Sec. 197. vs. Kennett, 54 Mo. 82, Sec. 104. vs. Merrian, 97 Ind. 539, Sec. 103. vs. Moor, 63 Me. 443, See. 235. vs. Robinson et al., 63 N. C. 191, Sec. 8, 129'. vs. Rand, 13 Barb. (N. Y.) 152, Sec. 59. vs. Sheehan, 29 Minn. 235, See. 189. vs. Trotter, 73 Ala. 277, Sec. S8. Badger vs. Barnabee, 17 N. H. 120, Sec. 9. Bailey vs. Butterfield, 14 Me. 112, Sec. 192. vs. Croft, 4 Taunt. 611, Sec. 16. vs. Griffith, 40 Up. Can. (Q. B.) 418, Sec. 90. vs. New, 29 Ga. 214, Sec. 115. vs. Rosenthal, 56 Mo. 385, See. 203. vs. Sweeting, 9 C. B. N. S. 843, Sec. 28. vs. Stoneman, 41 0. S. 148, See. 126. Barrows vs. Lane, 5 Vt. 161, Sec. 20. Bainbridge vs. Wade, 16 Ad. & Ell. N. S. 89, Sec. 26, 50. Baldwin Coal Co. vs. Davis, 62 Pae. Rep. (Col.) 1041, Sec. 40. Bateman vs. Butler, 124 Ind. 223, Sec. 42. TABLE, OF CASES. 559 (References are to sections.) Babcock, In re, 3 Story 390, Sec. 115. Babcoek vs. Carter, 117 Ala. 575, Sec. 292. vs. Meek, 45 Iowa 137, Sec. 46. Battell vs. Matot, 58 Vt. 271, Sec. 46. Bain vs. Whitehaven, 3 H. L. Cases 1, Sec. 47. Bastow vs. Bennett, 3 Camp. 220, See. 50, 59. Bashford vs. Shaw, 4 O. S. 267, Sec. 68. Bank vs. Anderson, 65 la. 692, Sec. 106. vs. Buchanan, 87 Tenn. 32, Sec. 97. vs. Cresson, 12 Serg. & R. (Pa.) 306, Sec. 164. vs. Dauckmeyer, 70 Mo. App. 168, Sec. 97. vs. Fordyce, 9 Pa. 275, See. 123. vs. Gaylord, 34 Iowa 246, See. 68. vs. Haskell, 51 N. H. 116, Sec. 113. vs. Hall, 107 Pa. 383, Sec. 231. vs. Haug, 82 Mich. 607, Sec. 269. • vs. Johnson, 9 Ala. 622, Sec. 94. vs. Nixon, 125 111. 615, See. 132. vs. Peltz, 176 Pa. 513, Sec. 101. vs. Patterson, 78 Ky. 291, See. 269. vs. Railway Co., 65 Iowa 692, Sec. 15. vs. State, 62 Md. 88, See. 95. vs. Simpson, 90 N. C. 467, Sec. 100. vs. Sinclair, 60 N. H. 100, Sec. 67. vs. Whitman, 66 111. 331, Sec. 94. Baskin vs. Huntington, 130 N. Y. 313, Sec, 69, 119. Bank of Albion vs. Smith, 27 Barb. 489, Sec. 127. Bank of Australasia vs. Reynell, 10 New Zealand, L. R. 257, Sec. 108. Bank of Biddeford vs. MeKenney, 67 Me. 272, See. 92. Bank Cases, 92 Tenn. 437, Sec. 269. Bank of Genesee vs. Patehjn Bank, 13 N. Y. 309, Sec. 166. Bank of Limestone vs. Penick, 2 T. B. Mon. (Ky.) 98, Sec. 75. Bank of Missouri vs. Matson, 26 Mo. 243, See. 90. Bank of Monroe vs. Gifford, 79 la. 300, Sec. 98, 136, 210, 212. Bank of Newark vs. Crawford, 2 Houst. (Del.) 282, Sec. 136. Bank of New Zealand vs. Wilson, 5 N. Z. L. R. S. C. 215, Sec. 77. Bank of Newberry vs. Stegall, 41 Miss. 142, Sec. 156. Bank of Pittsburg vs. Ncal, 22 How. 107, Sec. 137. Bank of Tarboro vs. Fidelity & Deposit Co., 128 N. C. 366, Sec. 255, 257. Bank of U. S. vs. Hatch, 6 Pet. 250, See. 122. Baubien vs. Stoney, 1 Speers Eq. (S. C.) 508, Sec. 101. Bateson vs. Gosling, L. R., 7 C. P. 9, Sec. 102. Ballow vs. Wichita Co., 74 Tex. 339, Sec. 109. Ballew vs. Roler, 124 Ind. 557, Sec. 265. Barnes vs. Barrow, 61 N. Y. 42, Sec. 2. vs. Mowry, 129 Ind. 568, Sec. 115. vs. Reed, 84 Fed. Rep. 603, Sec. 65. 560 TABLE OF CASES. (References are to sections.) Barnes vs. Sammons, 128 Ind. 596, Sec. 115. vs. State, 36 Tex. 332, Sec. 247. vs. Whitaker, 45 Wis. 204, Sec. 181. Bassenhorst vs. Wilby, 45 O. S. 333, Sec. 121. Bacon vs. Burham, 37 N. Y. 614, Sec. 8, 129. Barr vs. Mitchell, .7 Oregon 347, Sec. 8. Barney vs. Forbes, 118 N. Y. 580, Sec. 16, 57. vs. Saunders, 16 How. 535, Sec. 177. Barker vs. Parker, 1 Burn. & E. 287, See. 52. vs. Prentiss, 6 Mass. 432, Sec. 126. vs. Scudder, 56 Mo. 272, Sec. 42. Barnard vs. Lloyd, 85 Cal. 131, Sec. 45. Barnett vs. Barnett, 83 Va. 504, See. 146. vs. Smith, 17 111. 565, Sec. 52. Baugher vs. Duphorn, 9 Gill (Md.) 314, Sec. 118. Barclay vs. Gooch, 2 Esp. 571, Sec. 299. vs. Weaver, 19 Pa. 396, Sec. 126. Baskerville vs. Harris, 41 Minn. 535, Sec. 127. Barry vs. Morse, 3 N. H. 132, Sec. 127. vs. Ransom, 12 N. Y. 462, Sec. 282. Barton vs. Amer. Nat. Bank, 8 Tex. Civ. App. 223, Sec. 132. vs. Brent, 87 Va. 385, Sec. 262. vs. Croydon, 63 N. H. 417, Sec. 272. vs. Ridgeway, 92 Va. 163, Sec. 183. vs. Thompson, 66 Iowa 526, Sec. 224. Basham vs. Commonwealth, 76 Ky. 36, Sec. 140. Barrington vs. Bank of Washington, 14 Serg. & R. 405, See. 148. Baltimore First Nat. Bank vs. Gerke, 60 Md. 449, Sec. 150. Bay Co. vs. Brock, 44 Mich. 45, Sec. 166. Baker City vs. Murphy, 30 Oreg. 405, Sec. 171. Bagott vs. Mullen, 32 Ind. 332, Sec. 284. Bagot vs. State, 33 Ind. 262, Sec. 191. Barela vs. Tootle, 66 Pac. Rep. (Colo.) 899, Sec. 199, 206. Babbitt vs. Finn, 101 U. S. 7, Sec. 204, 206. Barber vs. Edelin, 9 Ky. L. Rep. 971, Sec. 214. vs. Gillson, 18 Nev. 89, Sec. 297. Baldwin vs. Fleming, 90 Ind. 177, Sec. 281, 282. vs. Walker, 94 Ala. 514, Sec. 217. Ball vs. Gardiner, 21 Wend. 270, Sec. 224. Baer's Appeal, 127 Pa. 360, Sec. 234. Baucus vs. Barr, 45 Hun 582, Sec. 235. Backus vs. Coyne, 45 Mich. 584, Sec. 286, 288, 300. Balch vs. Hooper, 32 Minn. 158, See. 237. Banks vs. Speers, 103 Ala. 436, Sec. 240. Bartholomew vs. First Nat. Bank, 57 Kan. 594, Sec. 262. Bait. & Ohio R. R. Co. vs. Bitner, 15 W. Va. 455, Sec. 117. vs. Gaulter, 60 111. App. 647, Sec. 180. TABLE OF CASES. 561 (References are to sections.) Bait. & Ohio E. R. Co. vs. Jackson, 3 Atl. Rep. (Pa.) 100, Sec. 148. vs. Vanderwarker, 19 W. Va. 265, Sec. 198. vs. Walker, 45 0. S. 577, Sec. 268. Bardwell vs. Lydall, 7 Ring. 489, Sec. 269. Baxter & Ralston, In re, 18 N. B. R. 497, Sec. 269. Bathgate vs. Haskin, 59 N. Y. 533, Sec. 275. Bates, In re, 118 111. 524, Sec. 269. Badeley vs. Consolidated Bank, 34 Ch. Div. 53u, Sec. 296. Barth vs. Graf, 101 Wis. 27, Sec. 297. Bausman vs. Credit Guarantee Co., 47 Minn. 377, Sec. 299. Batard vs. Hawes, 2 El. & Bl. 287, Sec. 279. Bachclder vs. Fiske, 17 Mass. 464, Sec. 279, 290. Barge vs. Van Der Horck, 57 Minn. 497, Sec. 291. Beardsley vs. Hawes, 71 Conn. 39, See. 6, 62. Benton vs. Fletcher, 31 Vt. 418, Sec. 63, 135. vs. Gibson, 1 Hill Law (S. C.) 56, Sec. 61. vs. Willard, 17 N. H. 593, Sec. 8. Benton Co. Bank vs. Boddicker, 105 la. 548, Sec. 106. Bent vs. Bent, 43 Vt. 42, Sec. 226. vs. Cobb, 9 Gray 397, Sec. 22. Beebe vs. Dudley, 26 N. H. 249, See. 68. vs. Moore, 3 McLean 387, Sec. 9. vs. Robinson, 52 Ala. 66, See. 163. Best Brewing Co. vs. Klassen, 185 111. 37, Sec. 11, 199. Belloni, vs. Freeborn, 63 N. Y. 388, Sec. 17, 50, 74, 146. Beard vs. Converse, 84 111. 515, Sec. 25. vs. Union Co., 71 Ala. 60, Sec. 117. Beaird vs. Russ, 32 La. Ann. 304, Sec. 198. Bean vs. Parker, 17 Mass. 603, Sec. 167. vs. Valle, 2 Mo. 126, Sec. 27. Beckwith vs. Talbot, 95 U. S. 289, Sec. 29. vs. Webber, 78 Mich. 390, Sec. 268. Beaman vs. Russell, 20 Vt. 205, Sec. 31. Besshears vs. Rowe, 46 Mo. 501, Sec. 42. Bell vs. Bruen, 1 How. 169, Sec. 49. vs. Jasper, 2 Ired. Eq. (N. C.) 597, Sec. 280. vs. Norwood, 7 La. 95, Sec. 53. vs. Paul, 35 Neb. 240, See. 149. vs. People, 94 111. 230. Sec. 239. vs. Rudolph, 70 Miss. 234, Sec. 241. vs. Walker, 54 Neb. 222, Sec. 204. vs. Western River Imp. Co., 60 Ky. 558, Sec. 223. Bennett vs. Brown, 20 N. Y. 99, Sec. 224. vs. Cook, 45 N. Y. 268, Sec. 278. vs. Draper, 139 N. Y. 272, Sec. 50. vs. State, 58 Miss. 556, Sec. 173. vs. Southern Bank, 61 Mo. App. 297, Sec. 222. 562 TABLE OF CASES. (References are to sections.) Bennett vs. Whitney, 94 N. Y. 302, Sec. 189. Berryman vs. Manker, 56 Iowa 150, Sec. 75, Bensinger vs. Wren, 100 Pa. 500, Sec. 76, 80. Benjamin vs. Hillard, 23 How. 165, Sec. 81. Berry vs. Pullen, 69 Me. 103, See. 82. Benz vs. Pullen, 69 Me. 101, Sec. 83. Beach vs. Zimmerman, 106 Ind. 495, Sec. 84. Bedwell vs. Gephart, 67 la. 44, Sec. 98. Bethune vs. Dozier, 10 Ga. 235, Sec. 20, 73. Bellevue Bldg. & Loan Ass'n vs. Jeekel, 46 S. W. Rep. (Ky.) 482, Sec. 106. Belden vs. Hurlbut, 94 Wis. 562, Sec. 109, 145. Benham vs. Assurance Co., 7 Welsh. H. & G. 744, Sec. 110. Bellows vs. Lovell, 5 Pick. 307, Sec. 115. Benedict vs. Olson, 37 Minn. 431, See. 115. Bechervaise vs. Lewis, L. E., 7 C. P. 372, Sec. 117, 275. Bewey vs. Reed, 40 Barb. 16, Sec. 72. Beattie vs. Browne, 64 111. 360, See. 127. Beeson vs. Howard, 44 Ind. 413, Sec. 144. Becker vs. Keokuk Water Works, 79 la. 419, Sec. 149. vs. People, 164 111. 267, Sec. 206. Beckham vs. Drake, 2 H. L. 579, Sec. 153, 160. Beers vs. Shannon, 73 N. Y. 292, Sec. 155. Beauchaine vs. McKinnon, 55 Minn. 318, Sec. 193. Bentley vs. Doreas, 11 O. S. 398, See. 198. Beall vs. New Mexico, 16 Wall. 535, Sec. 204. vs. Walker, 26 W. Va. 741, Sec. 261. Beal vs. Brown, 13 Allen 114, Sec. 25, 296. Berryhill vs. Keilmeyer, 33 Iowa 20, Sec. 205. Betts vs. Mougin, 15 La. Ann. 52, Sec. 210. Belmont Min. & Mil. Co. vs. Costigan, 21 Col. 465, Sec. 214. Bemis vs. Spalding, 9 Ky. L. Rep. 764, Sec. 214. Berghoff vs. Heekwolf, 26 Mo. 511, See. 229. Bellinger vs. Thompson, 26 Oregon 320, Sec. 235. Beasley vs. State, 53 Ark. 57, Sec. 247. Bearden vs. State, 89 Ala. 21, Sec. 248. Beaver vs. Slanker, 94 111. 175, Sec. 261, 267. Benne vs. Sohnecko, 100 Mo. 250, Sec. 264, 266. Beville vs. Boyd, 16 Tex. Civ. App. 491, Sec. 265. Beaver vs. Beaver, 23 Pa. 167, Sec. 298. Beekley vs: MunSon, 22 Conn. 299, Sec. 300. Bergen vs. Stewart, 28 How. Pr. 6, Sec. 280. Berrldge vs. Berridge, 44 Ch. Div. 168, See. 291. Bezzell vs. White, 13 Ala. 422, Sec. 291. Bigelow vs. Bridge, 8 Mass. 274, Sec. 171. vs. Comegys, 5 O. S. 256, See. 15. vs. Stearns, 19 Johns. 39, Sec. 185. vs. Stilphen, 35 Vt. 525, Sec. 74. TABLE OF CASES. 563 (References are to sections.) Bishop vs. Church, 2 Ves. 100, Sec. 69, 119. vs. Day, 13 Vt. 81, See. 115, 298. vs. Eaton, 161 Mass. 499, Sec. 66. vs. Freeman, 42 Mich. 533, Sec. 17. Birdsall vs. Heacock, 32 O. S. 177, Sec. 18, 50, 59. Bill vs. Bament, 9 M. & W. 36, Sec. 28. Bissig vs. Britton, 59 Mo. 204, Sec. 34. Birchell vs. Neaster, 36 0. S. 337, Sec. 40, 46. Billingslea vs. Ward, 33 Md. 48, Sec. 46. Bird vs. Monroe, 66 Me. 337, Sec. 47. Birekhead vs. Brown, 5 Hill (N. Y.) 635, Sec. 51. Bivins vs. Helsley, 4 Met. (Ky.) 78, Sec. 111. Bingham vs. Mears, 4 No. Da. 437, Sec. 118, 204. Birmingham Nat'l Bank vs. Bradley, 103 Ala. 109, Sec. 121. Bigony vs. Tyson, 75 Pa. 157, Sec. 153. Bissell vs. Saxton, 66 N. Y. 55, Sec. 191. Binford vs. Adams, 104 Ind. 41, Sec. 276. vs. Grimes, 26 Ind. App. 481, Sec. 214. Blck vs. Lang, 15 Ind. App. 503, Sec. 219. Biddinger vs. Pratt, 50 0. S. 719, Sec. 229. Billings vs. Sprague, 49 111. 509, Sec. 261. Bittick vs. Wilkins, 7 Heisk. (Tenn.) 307, Sec. 265. "~-~ Blatehford vs. Milliken, 35 111. 434, Sec. 8, 133. Blount vs. Hawkins, 19 Ala. 100, Sec. 41. Bless vs. Jenkins, 129 Mo. 647, Sec. 46. Bloomington Min. Co. vs. Searles, 63 N. J. L. 47, Sec. 77. Blair vs. Insurance Co., 10 Mo. 560, Sec. 80. vs. Perpetual Insurance Co., 10 Mo. 559, Sec. 191. vs. Reid, 20 Tex. 310, See. 93. vs. Reading, 103 111. 375, Sec. 203. vs. Sanborn, 82 Tex. 686, Sec. 203. BIydenburgh vs. Bingham, 38 N. Y. 371, See. 98. Black River Bank vs. Page, 44 N. Y. 453, Sec. 116. Blakey vs. Johnson, 13 Bush (Ky.) 197, Sec. 136. Blankman vs. Vallejo, 15 Cal. 638, Sec. 141. Blume vs. Burrows, 2 Ired. (N. C.) 338, See. 145. Blaekett vs. Crissop, 1 Lord Eaym. 278, See. 157. Black vs. Kaiser, 91 Ky. 422, Sec. 241. vs. Oblender, 135 Pa. 526, Sec. 173. Block vs. Blum, 33 111. App. 643, Sec. 199. vs. Estes, 92 Mo. 318, Sec. 285. Blanchard vs. Brown, 42 Mich. 46, Sec. 220. Bland vs. Creager, 13 B. Mon. (Ky.) 509, Sec. 223. Blackburn vs. Crowder, 108 Ind. 238, Sec. 232. Blevins vs. State, 31 Ark. 53, Sec. 245. Blake vs. Cole, 22 Pick. 97, See. 282. vs. Downey, 51 Mo. 437, Sec. 296. 564 TABLE OF CASES. (References are to sections.) Blake vs. Traders Nat. Bank, 145 Mass. 13, See. 265, 278. Booth vs. Powers, 56 N. Y. 22, Sec. 74. vs. Storrs et al., 75 111. 438, Sec. 15, 105. Boothbay vs. Giles, 68 Me. 160, Sec. 164. Board of Commissioners vs. Branham, 57 Fed. Rep. 179, Sec. 79. vs. Gray, 61 Minn. 242, Sec. 169. Board of Education vs. Jewell, 44 Minn. 427, Sec. 183. vs. Quick, 99 N. Y. 139, Sec. 170. vs. Thompson, 33 O. S. 321, Sec. 16. Board of School Directors vs. Brown, 33 La. Ann. 383, Sec. 166. Board of Supervisors vs. Clark, 92 N. Y. 391, Sec. 170. vs. Ehlers, 45 Wis. 281, Sec. 172. vs. Pabst, 70 Wis. 352, See. 172. Borden vs. Clark, 26 Mich. 410, Sec. 124. Borden et al. vs. Houston, 2 Tex. 594, Sec. 19. Boone Co. vs. Jones, 54 Iowa 699, Sec. 21. 166, 191. vs. State, 61 Ind. 379, See. 166. Boyce vs. Murphy, 91 Ind. 1, Sec. 37. Bott vs. Barr, 95 Ind. 243, Sec. 40. Boals vs. Nixon, 26 111. App. 517, Sec. 43. Boyd Tobacco Warehouse Co. vs. Terrill, 76 Ky. 463, Sec. 46. Boyd vs. Bell, 69 Tex. 735, See. 119. vs. Brooks, 34 Beav. 7, Sec. 296. vs. Cleveland, 4 Pick. 525, See. 126. vs. Parker, 43 Md. 183, Sec. 272. vs. Snyder, 49 Md. 325, Sec. 66. Boyden vs. United States, 13 Wall, 17 See. 184. Boston Duck Co. vs. Dewey, 6 Gray 446, See. 46. Boston & Sandwich Glass Co. vs. Moore, 119 Mass. 435, Sec. 60. Boehne vs. Murphy, 46 Mo. 5'r, See. 59. Bosman vs. Akeley, 39 Mich. 710, Sec. 63. Bostwick vs. Van Voorhis, 91 N. Y. 353, Sec. 71, 106, 141. Boalt vs. Brown, 13 O. S. 364, Sec. 72. Bowmaker vs. Moore, 7 Price 223, Sec. 81. Boardman vs. Larrabee, 51 Conn. 39, Sec. 82. Boaler vs. Mayor, 19 C. B. N. S. 76, Sec. 92. Boultbee vs. Stubbs, 18 Vt. 20, Sec. 92. Bond vs. Armstrong, 88 Ind. 65, Sec. 96. Boatmen's Bank vs. Johnson, 24 Mo. App. 316, Sec. 102. Bole vs. Bogardis, 86 Pa. 37, Sec. 114. Boynton vs. Pierce, 79 111. 145, Sec. 131, 137. Bowne vs. Mt. Holly Bank, 45 N. J. 360, Sec. 106. Bowers vs. Beck, 2 Nev. 139, Sec. 219. vs. Fleming, 67 Ind. 541, Sec. 180. Bowker vs. Bull, 1 Sim. (N. S.) 29, Sec. 267. Bowen vs. Hoskins, 45 Miss. 183, Sec. 287. Bowman vs. Blodgett, 2 Met. 308, Sec. 296. Bockenstedt vs. Perkins, 73 Iowa 23, Sec. 173, 241. TABLE OF CASES. 565 (References are to sections.) Boeard vs. State, 79 Ind. 270, See. 177. BoUes vs. Bird, 12 Colo. App. 78, See. 204. Boulden vs. Estey, 92 Ala. 182, Sec. 205. Boaz vs. Milliken, 4 Ky. L. Rep. 700, Sec. 206. Boiling vs. Tate, 65 Ala. 417, See. 214. Boatwright vs. Stewart, 37 Ark. 614, Sec. 220, 225. Boom vs. St. Paul, etc., 33 Minn. 253, Sec. 229. Bourne vs. Stevenson, 58 Me. 499, Sec. 234. Boswell vs. Colquitt, 73 Ga. 63, Sec. 249. Bohannon vs. Combs, 12 B. Mon. (Ky.) 577, See. 263. Boltz's Estate, 133 Pa. 77, See. 265, 266. Bonney vs. Seely, 2 Wend. 481, Sec. 299. Boulware vs. Hartsook, 83 Va. 679, Sec. 281. Bobbitt vs. Shryer, 70 Ind. 513, Sec. 281. Boutin vs. Etsell, 110 Wis. 276, Sec. 286, 288. Bottoms vs. Leonards, 21 Ky. L. Rep. 862, Sec. 292. Briggs vs. Boyd, 37 Vt. 534, See. 292. vs. Downing & Mathews, 48 Iowa 550, Sec. 9. vs. Latham, 36 Kans. 205, Sec. 16. vs. Norris, 67 Mich. 325, Sec. 94. vs. Partridge, 64 N. Y. 357, Sec. 160. Bragg vs. Patterson, 85 Ala. 233, See. 266, 297. vs. Shain, 49 Gal. 131, See. 79. Bright vs. Carpenter, 9 0. 139, See. 9, 129. vs. Lennon, 83 N. C. 183, Sec. 280, 288, 292. vs. McKnight, 1 Sneed (Tenn.) 158, Sec. 18, 50, 66. Bree vs. Holbeeh, 2 Doug. 665, Sec. 159. Breed vs. Hillhouse, 7 Conn. 523, Sec. 16, 57, 67. Browning et al. vs. Merritt et al., 61 Ind. 425, Sec. 10, 112. Brant vs. Barnett, 10 Ind. App. 653, Sec. 16. Bruce vs. Bickerton, 18 W. Va. 342, Sec. 290. vs. U. S., 17 How. 437, Sec. 19, 173. vs. Wright, 3 Hun 548, Sec. 126. Brent vs. Green, 6 Leigh (Va.) 16, Sec. 22. Brockway vs. Petted, 79 Mich. 620, Sec. 19. Bryan vs. Berry, 6 Cal. 394, Sec. 22. vs. Cattell, 15 la. 538, Sec. 163. vs. United States, 90 Fed. Rep. 473, Sec. 187. Bryant vs. Crosby, 36 Me. 562, Sec. 103. vs. Rich, 104 Mich. 124, Sec. 42. Brown vs. Ayer, 24 Ga. 288, See. 102. vs. Ames, 59 Minn. 476, Sec. 121, vs. Bradford, 30 Ga. 927, See. 103, 194. vs. Braddlee, 156 Mass. 28, See. 178. vs. Baldwin, 121 Mo. 126, Sec. 214. vs. Bank, 79 N. C. 244, Sec. 269. vs. Curtiss, 2 N. Y. 225, See 42, 61, 67. ^.^ 566 TABLE OF CASES. (References are to sections.) Brown vs. Conner, 32 N. C. 75, See. 202. vs. Davenport, 76 Ga. 799, Sec. 108. vs. Houek, 41 Hun 16, Sec. 265. vs. Kirk, 20 Mo. App. 524, Sec. 23, 268. vs. Kinsey, 81 N. C. 245, Sec. 144. vs. Lattimore, 17 Cal. 93, Sec. 171. vs. Mo. Pac. Ey. Co., 85 Mo. 123, Sec. 208. vs. Phippa, 14 Miss. 51, Sec. 178. vs. Eathburn, 10 Ore. 158, Sec. 98. vs. Bay, 18 N. H. 102, Sec. 291. vs. Shelby, 4 Ind. 477, Sec. 93. vs. State, 78 Ind. 239, Sec. 177. vs. Weaver, 76 Miss. 7, Sec. 181, 187. Browne vs. Carr, 2 Euss. 600, Sec. 100. Brownell vs. Winnie, 29 N. Y. 400, Sec. 75. Brewster vs. Balch, 41 N. Y. Super. Ct. 63, See. 234. vs. Silence, 8 N. Y. 207, Sec. 27. Brewer vs. Horst Lachmund Co., 127 Cal. 643, Sec. 30. Brodie vs. St. Paul, 1 Ves. Jr. 326, Sec. 29. Bray vs. Parcher, 80 Wis. 16, Sec. 41. Bradley vs. Burwell, 3 Denio (N. Y.) 61, Sec. 279, 292. vs. Fisher, 13 Wallace 335, Sec. 185. vs. Mann, 37 Mich. 1, Sec. 74. vs. Eichardson, 23 Vt. 720, Sec. 44. Brigham vs. Carlisle, 78 Ala. 243, Sec. 46. Brady vs. Eeynolds, 13 Cal. 32, Sec. 69. Brooking vs. Bank, 83 Ky. 431, See. 113. Brooks vs. Allen, 62 Ind. 401, Sec. 74. vs. Baker, 9 Daly (N. Y. C. P.) 398, Sec. 55. vs. Mangan, 86 Mich. 576, Sec. 185. Brokaw vs. Kelsey, 20 111. 304, Sec. 57. Breckett vs. Addyman, 9 Q. B. Div. 783, Sec. 71. Braetett vs. Eich, 23 Minn. 485, Sec. 63. Bradbury vs. Morgan, 1 Hurl. & Colt. 249, Sec. 71. Broome vs. The United States, 15 How. 143, Sec. 71, 119. Brietung vs. Lindauer, 37 Mich. 217, Sec. 85. Brengle vs. Bushey, 40 Md. 141, Sec. 86. Bramble vs. Ward, 40 O. S. 267, Sec. 94. Bridges vs. Blake, 106 Ind. 332, Sec. 95. Bristol Milling & Mfg. Co. vs. Probasco, 64 Ind. 413, Sec. 97. Brick vs. Freehold, 37 N. J. Law 307, Sec. 99. Brumback vs. German Bank, 46 Neb. 540, Sec. 109. Brubaker vs. Okeson, 36 Pa. 519, Sec. 113. Breneman vs. Furniss, 90 Pa. 186, See. 126. Bradford vs. McCormiok, 71 la. 129, Sec. 159. vs. Preseott, 85 Me. 482, Sec. 131. Brotherton vs. Street, 124 Ind. 599, Sec. 135. TABLE OF CASES. (References are to sections.) Breen vs. Kelley, 45 Minn. 352, Sec. 149. Brand vs. Johnrawe, 60 Mich. 210, Sec. 151. Brennan vs. Clark, 29 Neb. 385, Sec. 153. Brighton Bank vs. Smith, 94 Mass. 243, Sec. 155. Brainard vs. Jones, 18 N. Y. 35, See. 155, 231. Bradburne vs. Botfleld, 14 M. & W. 559, Sec. 161. Broad vs. Paris, 66 Tex. 119, Sec. 172. Brobst vs. Skillen, 16 0. S. 382, Sec. 173. Brayton vs. Town, 12 Iowa 346, Sec. 187. Brunswick vs. Snow, 73 Me. 177, See. 189. Braithwaite vs. Jordan, 5 N. D. 196, Sec. 198. Brounty vs. Daniels, 23 Neb. 162, Sec. 199. Braiden vs. Mercer, 44 0. S. 339, Sec. 243. Brite vs. State, 24 Tex. 219, See. 246. Brandon vs. Brandon, 3 De G. & J. 524, Sec. 261. Brough's Estate, 71 Pa. 460, See. 262. Brinson vs. Thomag, 2 Jones Eq. (N. C.) 414, Sec. 265. - Bridgman vs. Johnson, 44 Mich. 491, Sec. 268. Braught vs. Griffith, 16 Iowa 26, Sec. 265, 266, 301. Brandenburg vs. Flynn, 12 B. Men. (Ky.) 397, Sec. 271, 280. Brice vs. Watkins, 30 La. Ann. 21, Sec. 276. Brisendine vs. Martin, 1 Ired. Law (N. C.) 286, Sec. 2SB. Breckenridge vs. Taylor, 5 Dana (Ky.) 110, Sec. 292. Burson vs. Andes & Wife, 83 Va. 445, Sec. 17. Building Assn. vs. Cummings, 45 0. S. 664, Sec. 20, 139, 140. Bullard vs. Johns, 50 Ala. 382, See. 30. Bullock vs. Campbell, 9 Gill (Md.) 182, Sec. 297, 301. Bull vs. Allen, 19 Conn. 101, Sec. 115. vs. Coe, 77 Cal. 54, Sec. 95, 102. vs. First Nat'l Bank, 14 Fed. Rep. 612, Sec. 121. BuUowa vs. Orgo, 57 N. J. Eq. 428, See. 44. Bulger, In re, 45 Cal. 553. Sec. 163. Bugbee vs. Kendricken, 130 Mass. 437, Sec. 36. Butcher vs. Stuart, 11 M. & W. 857, Sec. 38. Bunneman vs. Wagner, 16 Ore. 433, See. 41. Burden vs. Knight, 82 Iowa 584, Sec. 45. Bushnell vs. Bishop Hill Colony, 28 111. 204, Sec. 58. vs. Bushnell, 77 Wis. 435, Sec. 279, 286. Burt vs. Wilson, 28 Cal. 632, Sec. 46. Buckingham vs. Murray, 7 Houst. 176, Sec. 66. Burgoyne vs. Ohio Life Ins. & Trust Co., 5 0. S. 586, Sec 69, 119. Burke vs. Cruger, 8 Tex. 66, Sec. 86. vs. Lee, 59 Ga. 165, Sec. 264. Burkle vs. Luce, 1 N. Y. 163, Sec. 229. Burnhisel vs. Firman, 22 Wall. 170, Sec. 97. Burr vs. Boyer, 2 Neb. 265, Sec. 99, 274. Butler vs. United States, 21 Wall. 272, Sec. 109, 145. 567 568 TABLE OF CASES. (References are to sections.) Butler vs. Wadley, 15 Ind. 502, Sec. 199, 207. Buttlar vs. Davis, 52 Tex. 74, Sec. 199. Burnham vs. Gosnell, 47 Mo. App. 637, See. 130. Burton vs. Anderson, 5 Har. (Del.) 2?1, Sec. 239. vs. Hansford, 10 W. Va. 470, See. 129, 132. Buck vs. Hutchins, 45 Minn. 270, See. 130. Bucki & Son Lumber Co. vs. Fidelity & Deposit Co., 109 Fed. Rep. 393, Sec. 225. Buckley vs. Van Diver, 70 Miss. 622, Sec. 225. Buckner vs. Stewart, 34 Ala. 529, Sec. 286. Buckmaster vs. Grundy, 8 111. 626, Sec. 288. Burgess vs. Badger, 124 111. 288, Sec. 146. vs. Doble, 149 Mass. 256, Sec. 205. Buffalo Cement Co. vs. McNaughton, 90 Hun 74, Sec. 149. Buffalo Press Club vs. Greene, 86 Hun 20, See. 156. Burchfield vs. Haffey, 34 Kan. 42, Sec. 155. Buifendeau vs. Brooks, 28 Gal. 641, See. 157. Burnet vs. Courts, 5 Har. & John. (Md.) 78, Sec. 158. Burnett vs. Millsaps, 59 Miss. 333, Sec. 280, 284. vs. State, 18 Tex. App. 283, Sec. 246. Burns vs. Follansbee, 20 111. App. 41, Sec. 161. vs. Parish, 3 B. Mon. (Ky.) 8, Sec. 296. Bunting vs. Gales, 77 N. C. 283, Sec. 163. Bunu vs. Jetmore, 70 Mo. 228, Sec. 167. vs. Lindsay, 95 Mo. 250, Sec. 276. Bunker vs. Osborn, 132 Cal. 480, See. 295. Bullwinkle vs. Guttenburg, 17 Wis. 601, Sec. 180. Bulkeley vs. House, 62 Conn. 459, Sec. 281. Bulkley vs. Stephens, 29 0. S. 620, See. 201. Buchanan vs. Milligan, 125 Ind. 332, Sec. 202. vs. Meisser, 105 111. 638, Sec. 283. Bustamente vs. Stewart, 55 Cal. 115, Sec. 214. Bush vs. Kirkbride, 30 Sou. Hep. (Ala.) 780, Sec. 214. Busch vs. Fisher, 89 Mich. 192, See. 232. Bushong vs. Taylor, 82 Mo. 660, See. 278. Bulmer vs. Jenkins, 3 How. Pr. 11, Sec. 227. Bunce vs. Bunce, 65 Iowa 106, Sec. 241. Burroughs vs. Lott, 19 Cal. 125, Sec.' 289. Byers vs. Alcorn, 16 111. App. 39, Sec. 294. vs. Hickman Grain Co., 84 N. W. Eep. (Iowa) 500, S«e. 54. vs. State, 20 Ind. 47, See. 164. Byrne vs. Gardner, 33 La. Ann. 6, Sec. 225. vs. Riddell, 4 La. Ann. 3, Sec. 199. Camp vs. Bostwick, 20 0. S. 337, Sec. 286, 293. vs. Simmons, 62 Ga. 73, See. 8, 129. TABLE OF CASES. 569 (References are to sections.) Campbell vs. Baker, 46 Pa. 243, Sec. 61, 67. vs. Carroll, 35 Mo. App. 640, Sec. 209. vs. Chamberlain, 10 Iowa 337, Sec. 225. vs. Findley, 3 Humph. 330, Sec. 27. vs. Gates, 17 Ind. 126, See. 112. vs. Johnson, 41 0. S. 588, Sec. 235. vs. People, 154 111. 595, See. 179. vs. Eothwell, 47 L. J. C. L. 144, Sec. 98. vs. Rotering, 42 Minn. 115, See. 159. Campbell Printing Press Co. vs. Powell, 78 Tex. 53, Sec. 111. Cady vs. Shepard, 12 Wis. 713, Sec. 10, 129. Casoni vs. Jerome, 58 N. Y. 315, Sec. 15. Calvo vs. Davies, 73 N. Y. 211, Sec. 23, 90. Casey vs. Peebles, 13 Neb. 7, See. 21. Case vs. Howard, 41 Iowa 479, Sec. 85. vs. Luse, 28 Iowa 527, See. 58. Cason vs. Connor, 83 Tex. 26, See. 262. Cass Co. vs. Beck, 76 la. 487, Sec. 157. Castling vs. Aubert, 2 East 325, Sec. 41. Castle vs. Eickly, 44 0. S. 490, Sec. 67, 130, 133. Caperton vs. Gray, 4 Yerg. (Tenn.) 563, Sec. 30. Carpenter vs. Broost, 2 Sandf. 537, Sec. 69. vs. Bowen, 42 Miss. 28, See. 272. vs. Davis, 72 111. 14, Sec. 46. vs. Kelly, 9 0. 106, Sec. 270. vs. King, 9 Met. 511, Sec. 113. vs. Longan, 16 Wall. 271, Sec. 51. vs. Minter, 72 Tex. 370, Sec. 265. vs. Oaks, 10 Rich. L. 17, Sec. 129. vs. Turrell, 100 Mass. 450, 452, Sec. 219. Carter vs. Black, 4 Dev. & Bat. Law (N. C.) 425, Sec. 296. vs. Mulrein, 82 Cal. 167, Sec. 211. vs. Thorn, 18 B. Mon. (Ky.) 613, Sec. 155. vs. Tice, 120 111. 277, Sec. 242. vs. Young, 77 Tenn. 210, Sec. 235. vs. Zenblin, 68 Ind. 436, Sec. 40, 43. Garden vs. McNiel, 21 N. Y. 336, Sec. 42. Cavazos vs. Trevino, 6 Wall. 773, Sec. 49. Cahuzac vs. Samin, 29 Ala. 540, See. 66. Carson Assn. vs. Miller, 16 Nev. 327, See. 77. Camden vs. Doremus, 3 How. 515, Sec. 63. vs. McCoy, 4 111. 437, Sec. 129. Cambridge Savings Bank vs. Hyde, 131 Mass. 77, Sec. 79. Calvert vs. Gordon, 3 Man. & Ky. 124, Sec. 119. vs. The London Dock Co., 2 Keen 638, Sec. 79. Oapehart vs. Mhoon, 5 Jones Eq. (N. C.) 178, Se*s^276. Capel vs. Butler, 2 Sim. & Stu. 457, Sec. 99, 274. 570 TABLE OF CASES. (References are to sections.) Capen vs. Bartlett, 153 Mass. 346, Sec. 232. Calloway vs. Snapp, 78 Ky. 561, See. 100. Casselberry vs. Warren, 40 111. App. 626, Sec. 110. Cairnes vs. Knight, 17 O. S. 68, Sec. 153. Carroll vs. Bowie, 7 Gill (Md.) 34, See. 158. vs. MeGee, 25 N. C. 13, See. 201, 206. vs. Partridge, 12 Mo. App. 583, Sec. 157. Calender vs. Olcott, 1 Mich. 344, Sec. 165. Cawley et al. vs. The People, 95 111. 249, Sec. 15, 20, 106, 168. Carver vs. Carver et. al. 77 Ind. 498, Sec. 19. vs. Carver, 115 Ind. 539, Sec. 205. Calkins vs. Chandler, 36 Mich. 320, Sec. 40. Carnahan vs. Trousey, 93 Ind. 561, See. 160. Carey vs. State, 34 Ind. 105, Sec. 180. Casper vs. Kent Circuit Judge, 45 Mich. 251, Sec. 232. vs. People, 6 111. App. 28, See. 181. Cash vs. People, 32 111. App. 250, Sec. 181. Calhoun vs. Hannan, 87 Ala. 277, Sec. 220. vs. Little, 106 Ga. 336, Sec. 185. Cassier vs. Fales, 139 Mass. 461, Sec. 189. Casky vs. Haviland, 13 Ala. 314, Sec. 191. Carr vs. Askew, 94 N. C. 194, Sec. 241. vs. Meade, 77 Va. 112, See. 193. vs. Smith, 129 N. C. 232, Sec. 281. Catlett vs. Brodle, 9 Wheat. 553, fiec. 196. Cayuga Bridge Co. vs. Magee, 2 Paige 116, 22, Sec. 196. Canfield vs. City of Erie, 21 Mifch. 160, Sec. 198. Carmichael vs. HoUoway, 9 Ind. 519, Sec. 198. Cain vs. Harden, 1 Oregon 360, See. 198. vs. State, 55 Ala. 170, ' See. 249. Callahan vs. Saleski, 29 Ark. 216, Sec. 204. Cahall vs. Citizens Mut. Bldgf. Assn., 74 Ala. 539, Sec. 205. Cadwell vs. Colgate, 7 Barbj 253, Sec. 216. vs. Gans, 1 Mont. 570, Sec. 232. Carothers vs. Mcllhenny, 63 Tex. 138, Sec. 221. Carithers vs. Stuart, 87 Ind. 424, Sec. 262. Caifery vs. Dudgeon, 38 Ind. 512, Sec. 228. Cantril vs. Babcock, 11 Colo. 143, Sec. 230. Carraway vs. Wallace, 17 Sou. Rep. (Miss.) 930, See. 231. California Savings Bank vs. Amer. Surety Co., 87 Fed. Rep. 118, Sec. 258. Cauthorn vs. Berry, 69 Mo. App. 404, Sec. 266. Carlisle vs. Wilkins, 51 Ala. 371, Sec. 272. Cathcart vs. Foulke, 13 Mo. 561, Sec. 292. Cauthorne vs. Weisinger, 6 Ala. 714, Sec. 293. Ceute vs. Kines, 102 N. Y. 377, Sec. 17. Central Railroad vs. First Nat. Bank, 73 Ga. 383, Sec. 125. Central Savings Bank vs. Shine, 48 Mo. 456, Sec. 66. TABLE OF CASES. 571 (References are to sections.) Central Trust Co. vs. National Bank, 101 U. S. 68, Sec. 51. Chase vs. Beraud, 29 Cal. 138, See. 203. vs. Hathorn, 61 Me. 505, Sec. 108. vs. Ingalls, 97 Mass. 524, Sec. 189. vs. McDonald, 7 Har. cSi; John. 160, Sec. 2. Champion vs. Griffith, 13 0. 228, Sec. 8, 9. Chaflfee vs. Jones, 19 Pick. 260, Sec. 8, 128, 129. vs. Memphis Ry., 64 Mo. 193, Sec. 129. Chicago & A. K. R. Co. vs. Higgins, 58 111. 128, Sec. 148. Chicago B. & Q. Ry. vs. Bartlett, 20 111. App. 96, Sec. 148. Chicago City Ry. Co. vs. Howison, 86 111. 215, Sec. 213. Chicago vs. Gage, 95 111. 593, Sec. 168, 177, 191. Church vs. Noble, 24 111. 291, Sec. 20, 139. vs. Simmons, 83 N. Y. 261, Sec. 206. Churchill vs. Abraham, 22 111. 456, Sec. 221. Chalaron vs. McFarlane, 5 La. (Curry) 227, Sec. 20. Childers vs. Talbott, 16 Pac. Rep. (N. M.) 275, Sec. 25. Child vs. Pearl, 43 Vt. 224, Sec. 25. vs. Powder Works, 44 N. H. 354, Sec. 297, 299. Childs vs. Wyman, 44 Me. 433, Sec. 131. Chapin vs. Lapham, 20 Pick. 467, See. 31. vs. Merrell, 4 Wend. 657, Sec. 282. Chicago Trust & Savings Bank vs. Nordgren, 157 111. 663, Sec. 8, 133. Chrisman vs. Hodges, 75 Mo. 413, Sec. 49. vs. Jones, 34 Ark. 73, See. 280. vs. Rogers, 30 Ark. 351, Sec. 224. vs. Tuttle, 59 Ind. 155, Sec. 115. Chafoin vs. Rich, 77 Cal. 476, Sec. 61. Christian & Gunn vs. Keen, 80 Va. 369, Sec. 73. Chester vs. Broderick, 131 N. Y. 549, Sec. 206. vs. Kingston Bank, 16 N. Y. 336, Sec. 274. vs. Leonard, 68 Conn. 495, Sec. 73, 79. Chadwick vs. Eastman, 53 Me. 12, Sec. 74, 75. Chaddock vs. Vanness, 35 N. J. L. 517, Sec. 126, 129, 132. Chute vs. Pattee, 37 Me. 102, Sec. 83. Chickasaw Co. vs. Pitcher, 36 Iowa 593, Sec. 85. Chilton vs. Chapman, 13 Mo. 470, Sec. 291. vs. Robbins, 4 Ala. 223, Sec. 89. Charlotte R. R. Co. vs. Gow, 59 Ga. 685, Sec. 107. Challiss vs. MeCrum, 22 Kan. 157, Sec. 124. Chipman vs. Todd, 60 Me. 282, Sec. 114. Chapman vs. Bluck, 5 Scotts Rep. 515, Sec. 146. Chorn vs. Miller, 9 La. Ann. 533, Sec. 129. Cheltenham Fire Brick Co. vs. Cook, 44 Mo. 29, Sec. 156. Chalfant vs. Payton, 91 Ind. 202, Sec. 156. Chancellor vs. Hoxsey, 41 N. J. L. 217, Sec. 160. Cheboygan vs. Erratt, 110 Mich. 156, Sec. 180. 572 TABLE OP CASES. (References are to sections.) Chandler vs. Higgins, 109 111. 602, Sec. 266, 268. vs. State, 1 Lea (Tenn.) 296, See. 180, 189. vs. Thornton, 4 B. Mon. (Ky.) 360, Sec. 205. Chamberlain vs. Beller, 18 N. Y. 115, Sec. 181. vs. Godfrey, 36 Vt. 380, Sec. 194. Charles vs. Haskins, 11 la. 329, Sec. 181. vs. Hoskins, 14 Iowa 471, Sec. 193. Charles City Plow Co. vs. Jones, 71 Iowa 234, Sec. 221. Chipstead vs. Porter, 63 Ga. 220, Sec. 189. Chipps vs. Hartnoll, 4 B. & S. 414, Sec. 296. Chapline vs. Robertson, 44 Ark. 202, Sec. 223. Christal vs. Kelly, 88 N. Y. 285, Sec. 223. Choate vs. Arrington, 116 Mass. 552, Sec. 235. vs. Jacobs, 136 Mass. 297, Sec. 234. vs. Thorndike, 138 Mass. 371, Sec. 235. Chaplain vs. People, 2 N. Y. 82, Sec. 248. Chemical Bank vs. Armstrong, 59 Fed. Rep. 372, Sec. 269. Cherry vs. Wilson, 78 N. C. 164, Sec. 280. Chapeze vs. Young, 87 Ky. 476, Sec. 281. City Bank vs. First Nat'l Bank, 45 Tex. 203, Sec. 121 vs. Luckie, 5 Ch. App. 773, Sec. 273. vs. Young, 43 N. H. 457, Sec. 99. City Nat. Bank vs. Dudgeon, 65 111. 11, Sec. 267. vs. Phelps, 86 N. Y. 484, Sec. 18, 66. City of Aberdeen vs. Honey, 8 Wash. 251, Sec. 153, 154. City of Albany vs. McNamara, 117 N. Y. 168, Sec. 190. City of Boise City vs. Randall, 66 Pac. Rep. (Idaho) 938, Sec. 212. City of Chicago vs. Gage et al., 95 111. 593, Sec. 21. City of Helena vs. Brule, 15 Mont. 429, Sec. 214. City of Kansas vs. O'Connell, 99 Mo. 357, Sec. 149. City of Keokuk vs. Love, 31 Iowa 119, Sec. 262. City of Livingston vs. Woods, 20 Mont. 91, Sec. 183. City of New Orleans vs. Clark, 95 U. S. 644, Sec. 70. Citytof New York vs. New York Refrigerator Co., 82 Hun 553, Sec. 143. City of Philadelphia vs. Madden, 23 Pa. Co. Ct. Rep. 39, Sec. 149. City of St. Louis vs. Foster, 24 Mo. 141, Sec. 191. Citizens Bank vs. Whinery, 110 Iowa 390, Sec. 96. vs. Wiegand, 12 Phila. Rep. 496, Sec. 148. Citizens Nat'l Bank vs. PioUet, 126 Pa. 194, See. 124. Citizens Loan Assn. vs. Nugent, 40 N. J. L. 215, Sec. 147. Clopton Exr. vs. Hall, 51 Miss. 482, Sec. 9. Ciopton vs. Spratt, 52 Miss. 251, Sec. 99. Clancy vs. Kenworthy, 74 la. 740, Sec. 181. vs. Piggott, 2 Ad. & Ell. 473, Sec. 26. Clark vs. Billings, 51 Ind. 509, Sec. 97. vs. Barnard, 108 U. S. 436, 459, See. 154. vs. Bryan, 16 Md. 171, Sec. 223. TABLE OP CASES. 573 (References are to sections.) Clark vs. Chamberlain, 112 Mass. 19, See. 29. vs. Clayton, 61 Cal. 634, See. 210. vs. Fredenburg, 43 Mieh. 263, Sec. 238. vs. First Nat. Bank, 57 Mo. App. 277, Sec. 265. vs. Jones, 85 Ala. 127, Sec. 41. vs. Mallory, 185 111. 227, Sec. 119. vs. Miller, 54 N. Y. 528, Sec. 189. vs. Osborn, 41 0. S. 28, Sec. 115. vs. Eemington, 11 Met. 36, See. 68. vs. Sickler, 64 N. Y. 231, Sec. 96. vs. Thayer, 105 Mass. 216, See. 71. ' — vs. Wilkinson, 59 Wis. 543, Sec. 173. vs. Wilson, 103 Mass. 219, Sec. 265. Clerk vs. Withers, 2 Ld. Raym. 1072, Sec. 204. vs. Martin, 1 Salk. 129, Sec. 120. Claflin vs. Ostrom, 54 N. Y. 581, See. 51. Clay vs. Edgerton, 19 O. S. 549, Sec. 61, 67, 135. vs. Freeman, 74 Miss. 816, Sec. 272. vs. Severence, 55 Vt. 300, Sec. 296. Clough vs. Seay, 49 Iowa 111, See. 74. Clute vs. Small, 17 Wend. 238, Sec. 74. Clagett vs. Salmon, 5 Gill & Johns. (Md.) 314, See. 77. Clinton Bank vs. Ayres, 16 O. 283, Sec. 78. Clow vs. Derby, 98 Pa. 432, Sec. 98. Clapp vs. Rice, 15 Gray 557, Sec. 114, 293. Clowston vs. Barbiere, 4 Sneed 335, Sec. 129. Clements vs. Schuylkill R. R. Co., 132 Pa. 445, See. 153. Coleman vs. Fuller, 105 N. C. 328, Sec. 6. vs. State, 10 Md. 168, See. 246, 247. Cole vs. Fox, 83 N. C. 463, Sec. 112. vs. Dyer, 1 Cromp. & Jerv. 461, Sec. 26. vs. Justice, 8 Ala. 793, Sec. 275. vs. Malcolm, 66 N. Y. 363, Sec. 276. vs. Merchants' Bank, 60 Ind. 350, Sec. 61. vs. Smith, 29 La. Ann. 551, Sec. 112. Cole Co. vs. Dallmeyer, 101 Mo. 57, Sec. 164. Cowles vs. Peck, 55 Conn. 251, Sec. 16, 62. Coe vs. Buehler, 110 Pa. 366, See. 66. vs. N. J. Midland Ry. Co., 31 N. J. Eq. 106, Sec. 262. vs. Vogdes, 71 Pa. 383, Sec. 119. Cook vs. Chapman, 41 N". J. Eq. 152, Sec. 213, 214. vs. Caraway, 29 Kan. 41, Sec. 12. vs. Freudenthal, 80 N. Y. 205, Sec. 111. vs. Ligon, 54 Misc. 625, Sec. 202. vs. Southwick, 9 Tex. 615, See. 8, 131. Comstock vs. Gage, 91 111. 328, Sec. 15. vs. Norton, 36 Mieh. 277, Sec. 42. 574 TABLE OF CASES. (References are t« sections.) Coffin vs. Trustees, 92 Ind. 337, Sec. 16, 57. Cocks vs. Barker, 49 N. Y. 107, Sec. 19, 144. Cockrum vs. West, 122 Ind. 372, See. 261. Copeland & Brantley vs. Cunningham, 63 Ala. 394, Sec. 20, 139, 211. Colgrove vs. Tallman, 67 N. Y. 95, Sec. 23, 90, 116. Cosgrove Brewing & Malting Co. vs. Starrs, 5 Ont. 189, Sec. 54. Cosgrove vs. Cummings, 195 Pa. 497, Sec. 140. Conn vs. State ex rel. Stutsman, 125 Ind. 514, Sec. 144. Conaway vs. Sweeney, 24 W. Va. 643, See. 30. Colt vs. Root, 17 Mass. 229, Sec. 31. Colter vs. Morgan, 12 B. Mon. (Ky.) 278, Sec. 170. Cortelyou vs. Hoagland, 40 N. J. Eq. 1, Sec. 34. vs. Maben, 40 Neb. 512, Sec. 218. Cowdin vs. Gottgetreu, 55 N. Y. 650, Sec. 36. Corkins vs. Collins, 16 Mich. 478, See. 41. Oowenhoven vs. Howell, 36 N. J. L. 323, Sec. 41. Cosand vs. Bunker, 2 S. D. 294, Sec. 46. Cochran vs. People's Ry. Co., 113 Mo. 359, Sec. 153. vs. Ward, 5 Ind. App. 89, Sec. 47. vs. Wood, 29 N. C. 215, Sec. 198. vs. Walker, 82 Ky. 220, Sec. 293. Cochrane vs. Gushing, 124 Mass. 219, Sec. 100. Columbus Sewer Pipe Co. vs. Ganser, 58 Mich. 385, Sec. 50. Columbus, Hocking Valley & Toledo Ry. Co. vs. Burke, 54 O. S. 98, Sec. 210. Columbia, etc., R. R. Co. vs. Braillard, 12 Wash. 22, Sec. 200. Columbia Co. vs. Massie, 31 Oreg. 292, See. 172. Commercial Bank vs. Heiminger, 105 Pa. 496, Sec. 101. vs. Provident Inst., 59 Kan. 361, Sec. 51. vs. Wood, 56 Mo. App. 214, Sec. 90. Commercial Nat. Bank vs. Armstrong, 39 Fed. Rep. 684, Sec. 125. Commonwealth vs. Amer. Bonding & Tr. Co., 16 Pa. Super. Ct. 570, Sec. 241. vs. Brassfield, 7 B. Mon. (Ky.) 447, Sec. 191. vs. Ches. & Ohio Canal Co., 32 Md. 501, Sec. 262, 276. vs. Comly, 3 Pa. 372, See. 184. vs. Drewry, 15 Gratt. (Va.) 1, Sec. 171. vs. Dill, 1 Phila. Rep. 556, Sec. 237. vs. Flemming, 15 Ky. L. Rep. 491, Sec. 249. vs. Godshaw, 13 Ky. L. Rep. 572, Sec. 177. vs. Green, 138 Mass. 200, Sec. 203. vs. Holmes, 25 Gratt. 771, See. 87, 170. vs. Julius, 173 Pa. 322, Sec. 243. vs. Magnolia Villa Land Co., 163 Pa. 99, Sec. 217. vs. Meyer, 170 Pa. 380, Sec. 225. vs. Overby, 80 Ky. 208, Sec. 249. vs. Pray, 125 Pa. 542, See. 241. vs. Rogers, 53 Pa. 470, Sec. 240. TABLE OB- CASES. 575 (References are to sections.) Commonwealth vs. Swope, 45 Pa. 535, Sec. 178. vs. Stockton, 5 T. B. Men. (Ky.) 192, Sec. 181. vs. Toms, 45 Pa. 408, Sec. 172. vs. Teevens, 143 Mass. 210, Sec. 248. vs. Terry, 63 Ky. 383, Sec. 249. vs. Wistar, 142 Pa. 373, Sec. 199. Commonwealth Insurance Co. vs. Scott, 81 Ky. 540, See. 107. Codman vs. Rogers, 10 Pick. 112, See. 195. vs. Vt. & 0. R. Co., 16 Blatchf. 165, Sec. 51. College Park Elec. Belt Line vs. Ide, 15 Tex. Civ. App. 273, Sec. 57. Conn. Mutual Life Ins. Co. vs. Scott, 81 Ky. 540, Sec. 53. Conn. Life Ins. Co. vs. Chase, 72 Vt. 176, Sec. 106, 145. Commissioners vs. Evans, 74 Pa. 124, Sec. 163. vs. Wasson, 82 N. C. 308, Sec. 126. Cobb vs. Haynes, 8 B. Mon. (Ky.) 137, Sec. 280. vs. Page, 17 Pa. 469, See. 57. Cox vs. Brown, 51 N. C. 100, Sec. 67. vs. Mobile Co., 37 Ala. 320, See. 83. vs. MulhoUan, 6 Mart. (La.) 649, Sec. 204. vs. Taylor's Adm., 10 B. Mon. 17, Sec. 212. Coulthart vs. Clementson, 5 Q. B. Div. 412, Sec. 71. Cornwell vs. Holly, 5 Rich. 47, See. 83. Cornell vs. The People, 37 111. App. 490, See. 108, 181. Conwell vs. McCowan, 53 III. 363, Sec. 262, 267. vs. Voorhees, 13 O. 523, Sec. 187. Colwell vs. Lawrence, 38 N. Y. 74, Sec. 153. Corielle vs. Allen, 13 Iowa 289, Sec. 83. Coster vs. Mesner, 58 Mo. 549, Sec. 83. Corbett vs. Waterman, 11 la. 86, Sec. 90. Cohea vs. Commissioners, 15 Miss. 437, Sec. 95. Cohen vs. Wright, 22 Cal. 293, See. 163. Cohn vs. Lehman, 93 Mo. 574, Sec. 210. Cowan vs. Baird, 77 N. C. 201, See. 111. vs. Telford, 5 Lea (Tenn.) 449, Sec. 272. Coots vs. Farnsworth, 61 Mich. 497, Sec. 112? Collins vs. Everett, 4 Ga. 273, See. 129. vs. Mayor, 3 Hun 680, Sec. 163. vs. Prosser, 1 Barn. & Cr. 682, Sec. 114. vs. Trist, 20 La. Ann. 348, See. 129. Concord vs. Pillsbury, 33 N. H. 310, Sec. 117. Corporation of Huron vs. Armstrong, 27 Up. Can. (Q. B.) 533, Sec. 111. Condon vs. Pearce, 43 Md. 83, See. 121. Copp vs. McDugall, 9 Mass. 1, Sec. 121. Conger vs. Babbet, 67 la. 13, Sec. 129. Comparee vs. Broekway, 11 Humph. 355, Sec. 129. Cornett vs. Hafer, 43 Kans. 60, See. 130. Coolidge vs. Wiggins, 62 Me. 568, Sec. 136. 576 TABLE OF OASES. (References are to sections.) Comer vs. Baldwin, 16 Minn. 172, See. 141. Cowel vs. Anderson, 33 Minn. 374, Sec. 146. Collier vs. Betterton, 87 Tex. 440, Sec. 153. vs. Windham, 27 Ala. 291, Sec. 157. Cooper, In re, 22 N. Y. 67, See. 163. vs. Middleton, 94 N. C. 86, See. 272. Cooper vs. Rhodes, 30 La. Ann. 533, Sec. 205. Coburn vs. Townsemd, 103 Cal. 233, Sec. 164. County of Spokane vs. Allen, 9 Wash. 229, Sec. 170. County Board vs. Bateman, 102 N. C. 52, Sec. 172. County vs. Tower, 28 Minn. 45, Sec. 172. Costley vs. Allen, 56 Ala. 198, Sec. 172. Cogburn vs. Spence, 15 Ala. 549, Sec. 189. Connor vs. Coeron, 13 S. D. 550, Sec. 193. Conner vs. State, 30 Tex. 94, See. 249. Cony vs. Barrows, 46 Me. 497, Sec. 194. Coughran vs. Sundback, 13 S. D. 115, Sec. 198. Coon vs. McCormack, 69 Iowa 539, Sec. 203. Coons vs. CliflFord, 58 O. S. 480, Sec. 272. Coope vs. Twynam, Turn. & Euss. 426, dec. 280. Coonradt vs. Campbell, 29 Kan. 391, Sec. 205. Cooperative Assn. vs. Eohl, 32 Kan. 663, Sec. 199. Colby vs. Meservey, 85 Iowa 555, Sec. 213, 214. Coverdale vs. Alexander, 82 Ind. 503, See. 228. Corn Exchange Bank vs. Blye, 102 N. Y. 305, Sec. 229. Corrigan vs. Foster, Admx., 51 O. S. 225, Sec. 235. Court of Probate vs. Smith, 16 R. I. 444, Sec. 240. Colquitt vs. Smith, 65 Ga. 341, Sec. 246. Covey vs. Nefif, 63 Ind. 391, Sec. 262. Cowgill vs. Linville, 20 Mo. App. 138, Sec. 265. Copis vs. Middleton, Turn. & Russ. Ch. Rep. 224, See. 266. Connelly vs. Bourg, 16 La. Ann. 108, Sec. 266. Cotrell's Appeal, 23 Pa. 294, See. 266. Cotton vs. Alexander, 32 Kan. 339, Sec. 296. Oonsol. Co. vs. Musgrave, 1 L. R. Ch. Div. 37 (1900), Sec. 296. Coggeshall vs. Ruggles, 62 111. 401, Sec. 299. Conover vs. Hill, 76 111. 342, Sec. 290. Crawford vs. Gaulden, 33 Ga. 173, See. 99. vs. Howard, 9 Ga. 314, Sec. 187. vs. Rieheson, 101 III. 351, Sec. 278. vs. Sterling, 4 Esp. 207, Sec. 11. Cramer vs. Tittle, 72 Cal. 12, Sec. 13. Cremer vs. Higginson, 1 Mass. 323, Sec. 54, 65. Crum vs. Wilson, 61 Miss. 233, Sec. 19. Crane vs. Andrews, 10 Colo. 265, Sec. 205. vs. Camp, 12 Conn. 464, Sec. 186. vs. Powell, 139 N. Y. 379, Sec. 25. TABLE OF CASES. 577 (References are to sections.) Crane vs. Weymouth, 54 Cal. 476, Sec. 206. vs. Wheeler, 48 Minn. 207, Sec. 63. Crane Co. vs. Speeht, 39 Neb. 123, Sec. 50. Crim vs. Fitch, 53 Ind. 219, Sec. 31. vs. Fleming, 101 Ind. 154, Sec. 99. vs. Wilson, 61 Miss. 233, Sec. 103. Crears vs. Hunter, 19 Q. B. Div. 341, Sec. 57. Crist vs. Burlingame, 62 Barb. (N. Y.) 351, Sec. 60. Crittenden vs. Fiske, 46 Mich. 70, Sec. 60, 66. Craig vs. Parkis, 40 N. Y. 187, See. 63. vs. Phipps, 23 Miss. 240, See. 61. Craft vs. Isham, 13 Conn. 28, See. 66. Crafts vs. Mott, 4 N. Y. 603, Sec. 304. Croswell vs. Labree, 81 Me. 44, See. 74. Cresswell vs. Herr, 9 Col. App. 185, Sec. 201. Cross vs. Ballard, 46 Vt. 415, Sec. 117. vs. Rowe, 22 N. H. 77, Sec. 78. vs. State Bank, 5 Ark. 525, See. 109. Cragoe vs. Jones, L. E,. 8 Ex. 81, Sec. 102. Crocker vs. Getchell, 23 Me. 392, Sec. 127. Crosby vs. Roub, 16 Wis. 645, Sec. 135. Crowell vs. Hospital of St. Barnabas, 27 N. J. Eq. 650, Sec. 160, Crook vs. People, 106 111. 237, Sec. 163. Cronin vs. Stoddard, 97 N. Y. 271, See. 168. Crawn vs. Commonwealth, 84 Va. 282, See. 17 j. Cranor vs. Eeardon, 39 Mo. App. 306, Sec. 203. Crounse vs. Syracuse, C. & N. Y. K. E. Co., 32 Hun 497, Sec. 214. Crouse vs. Wagner, 41 0. S. 470, See. 281. Crouch vs. Edwards, 52 Ark. 499, Sec. 238. Crow vs. Crow, 53 Ky. 383, Sec. 239. Cravey vs. State, 26 Tex. App. 84, Sec. 248. Creager vs. Brengle, 5 Harr. & J. (Md.) 234, Sec. 264. Crisfield vs. State, 55 Md. 192, See. 264. * Cranmer vs. McSwords, 26 W. Va. 412, Sec. 299, 300. Craythorne vs. Swinburne, 14 Ves. Jr. 164, Sec. 279, 281. Currier vs. Baker, 51 N. H. 613, Sec. 290, 293. vs. Fellows, 27 N. H. 266, Sec. 8, 129. Curtin vs. Patton, 11 Serg. & E. 305, See; 11. Culver vs. Eeno Real Estate Co., 91 Pa. St. 367, Sec. 11, 166. Cutler vs. Balloo, 136 Mass. 337, See. 18, 60. Cutter vs. Emery, 37 N. H. 567, Sec. 284. Curry vs. Curry, 87 Ky. 667, Sec. 276. vs. Hale et al., 15 W. Va. 867, Sec. ?'. Gushing vs. Cable, 48 Minn. 3, Sec. 50. Curtis, In re, 64 Conn. 501, Sec. 49. Curtis vs. Brewer, 17 Pick. 513, See. 153. vs. Parks, 55 Cal. 106, Sec. 292. 578 TABLE OF CASES. (References are to sections.) Curtis vs. Smallman, 14 Wend. N. Y. 231, Sec. 62. vs. Tyler, 9 Paige 432, See. 272. vs. United States, 100 U. S. 119, Sec. 155. Curtiss vs. Baehman, 110 Cal. 433, See. 214. vs. Colby, 39 Midi. 456, Sec. 188. Curiae vs. Packard, 29 Cal. 194, Sec. 96. Gumming vs. Brown, 43 N. Y. 514, Sec. 181. Cummings vs. Gann, 52 Pa. 488, Sec. 226. vs. Little, 45 Me. 183, Sec. 98. Culbertson vs. Smith, 52 Md. 628, Sec. 130. Curd vs. Forts, 9 Ky. 119, Sec. 140. Cunningham vs. Finch, 88 N. W. (Neb.) 168, Sec. 214. vs. Wrenn, 23 111. 62, Sec. 146. Cumberland vs. Pennell, 69 Me. 357, Sec. 184. Cumberland Coal & Iron Co. vs. Hoffman, 39 Barb. 16, Sec. 212. C. & W. Coal Co. vs. Liddell, 69 111. 639, Sec. 40, 46. Cyclone Steam Snowplow Co. vs. Vulcan Iron Works, 52 Fed. Eep. 920, Sec. 231. D Davis vs. Banks, 45 Ga. 138, Sec. 40. vs. Blackwell, 5 111. App. 32, Sec. 11. vs. Board of Commissioners of Stokes Co., 72 N. C. 441, Sec. 301. vs. Brown, 94 U. S. 427, Sec. 127. vs. Buckles, 89 111. 237, Sec. 108. vs. Commissioners, 72 N. C. 441, Sec. 104. vs. Gillett, 52 N. H. 126, See. 153. vs. Harding, 3 Allen 302, Sec. 232. vs. Herrick, 6 0. 55, See. 121. vs. Hoopes, 33 Miss. 173, Sec. 297. vs. Morgan, 64 N. C. 570, Sec. 126. vs. O'Bryant, 23 Ind. App. 376, Sec. 200. vs. Old Colony R. R.,,131 Mass. 258, Sec. 11. vs. Patrick, 141 U. S.* 479, Sec. 39, 118, 204.— vs. People, 1 Gilm. 111. 409, Sec. 87. vs. Shafer, 50 Fed. Eep. 764, Sec. 49. vs. Shields, 26 Wend. 341, Sec. 30, 140. vs. Statts, 43 Ind. 103, Sec. 104. vs. South Carolina, 107 U. S. 597, Sec. 247. vs. Toulmin, 77 N. Y. 280, Sec. 291. vs. Wells, 104 U. S. 169, Sec. 5, 16, 48, 50, 61, 65, 68. -^ Davis Sewing Machine Co. vs. Richards, 115 U. S. 524, Sec. 65. Davies vs. Barrington, 30 N. H. 517, Sec. 112. vs. Funston, 45 Upper Can. (Q. B.) 369, Sec. 16, 57. vs. Humphries, 6 M. & W. 153, Sec. 286. vs. London & P. Marine Ins. Co., L. R. Ch. Div. 469, Sec. 106. Dangler vs. Baker, 35 0. S. 673, Sec. 15, 57, 145. Dahlman vs. Hammel, 45 Wis. 466, Sec. 16, 57. TABLE OF CASES. §Y9 (References are to sections.) Daniel vs. Ballard, 2 Dana (Ky.) 296, See. 284. Daniels et al. vs. Barney, 22 Ind. 207, Sec. 19, 156. Danker vs. Atwood, 119 Mass. 146, Sec. 20, 139. Day vs. Cloe, 67 Ky. (4 Bush) 563, Sec. 38. vs. Elmore, 4 Wis. 190, Sec. 99. vs. Eamey, 40 0. S. 446, Sec. 98. Darst vs. Bates, 95 III. 493, Sec. 42. Dana vs. Conant, 30 Vt. 246, Sec. 63. Dana, Executor, vs. Parker, 23 Fed. Rep. 263, Sec. 161. Dane vs. Cordnan, 24 Cal. 157, Sec. 115. vs. Gilmore, 51 Me. 544, Sec. 193. Dair vs. United States, 16 Wall. 1, See. 74, 109, 145. Dawe vs. Morris, 149 Mass. 188, Sec. 110. Darby vs. Berney, Nat'l Bank, 97 Ala. 643, Sec. 115. Dalrymple vs. Hillenbrand, 62 N. Y. 5, Sec. 121. Dale vs. Gear, 38 Conn. 15, See. 127. Davidson vs. Powell, 114 N. C. 575, Sec. 135. Dangel vs. Levy, 1 Idaho 722, See. 151. Dayton vs. Lynes, 30 Conn. 351, Sec. 165. Dawson vs. Lee, 83 Ky. 49 Sec. 276. vs. State, 38 0. S. 1, See. 170. Davany vs. Koon, 45 Miss. 71, Sec. 190. Daggitt vs. Mensch, 141 111. 395, See. 202. Damron vs. Sweetser, 16 111. App. 339, Sec. 225. Daum vs. Kehnast, 18 0. C. C. 1, Sec. 290. Deobold vs. Opperman, 111 N. Y. 531, Sec. 16. Demeritt vs. Biekford, 58 N. H. 523, Sec. 34. Dean vs. Tallman, 105 Mass. 443, Sec. 36. vs. Walker, 107 111. 540, Sec. 36. Dexter vs. Ohlander, 89 Ala. 262, Sec. 45. Dewey vs. Clark Invest. Co., 48 Minn. 130, See. 63. vs. Kavanaugh, 45 Neb. 233, Sec. 180. vs. State ex rel. McCoUum, 91 Ind. 173, See. 149. Deck vs. Works, 57 How. Pr. 292, Sec. 67. Dey vs. Martin, 78 Va. 1, See. 73. Denio vs. State, 60 Miss. 949, Sec. 76, 170. Deal vs. Cochran, 66 N. C. 269, Sec. 81. Dedriek vs. Den Bleyker, 85 Mich. 475, Sec. 90. Denton vs. Butler, 99 Ga. 264, Sec. 106. vs. Peters, 5 Q. B. L. R. 475, Sec. 126. Deardorff vs. Foresman, 24 Ind, 481, Sec. 111. Demott vs. Field, 7 Cow. 58, See. 119. vs. Stockton, 32 N. J. Eq. 124, See. 272. Deering vs. Creighton, 19 Ore. 118, Sec. 132. vs. Winehelsea, 2 B. & P. 270, Sec. 279, 280, 285. Dedham Bank vs. Chiekering, 3 Pick. 335, Sec. 147. Detroit Savings Bank vs. Ziegler, 49 Mich. 157, See. 150. 580 TABLE OF CASES. (References are to sections.) Dedge vs. Branch, 94 Ga. 37, Sec. 169. De Greiflf vs. Wilson, 30 N. J. Eq. 435, Sec. 193. Dennie vs. Smith, 129 Mass. 143, Sec. 194. Denison University vs. Manning, 65 O. S. 138, Sec. 90. Dennison vs. Mason, 36 Me. 431, See. 199. Deatherage vs. Sheidley, 50 Mo. App. 490, Sec. 202. Deisher vs. Gehre, 45 Kan. 583, See. 205. Devol vs. Dye, 6 Ind. App. 257, Sec. 205. Dearborn vs. Eiehardson, 108 Mass. 565, See. 223. Denny vs. Reynolds, 24 Ind. 248, Sec. 230. Deer Lodge Co. vs. At., 3 Mont. 168, Sec. 248. Dempsey vs. Bush, 18 0. S. 376, Sec. 261, 266. Denier vs. Myers, 20 O. S. 336, Sec. 263. Deitzler vs. Mishler, 37 Pa. 82, Sec. 265. Dent vs. Wait, 9 W. Va. 41, See. 271. Desot vs. Ross, 95 Mich. 81, See. 276. Deare vs. Soutten, L. E. 9 Eq. 151, Sec. 276. Dennis vs. Gillespie, 24 Miss. 581, Sec. 279. Derosset vs. Bradley, 63 N. C. 17, Sec. 288. Delaware, L. & W. R. E. Co. vs. Oxford Iron Co., 38 N. J. Eq. 151, See. 299. Dillman vs. Nadelhoffer, 160 111. 121, Sec. 9, 63. Dinsmore vs. Tidball et al., 34 O. S. 411, See. 15, 106. Diekerson vs. Com. Ripley Co., 6 Ind. 128, Sec. 93. vs. Derrickson, 39 111. 574, Sec. 67. Dixon vs. Spencer, 59 Md. 246, Sec. 85. Dills vs. Cecil, 4 Bush (Ky.) 579, Sec. 99. Diekason vs. Bell, 13 La. Ann. 249, Sec. 103. Dillon vs. Russell, 5 Neb. 484, Sec. 116. District of Columbia vs. Gallaher, 124 U. S. 505, Sec. 146. District of Taylor vs. Morton, 37 Iowa 553, Sec. 183, 184. Dignowitty vs. Staacke, 25 S. W. (Tex. Civ. App.) 824, Sec. 202. Diehl vs. Friester, 37 O. S. 473, See. 209. Dix vs. Morris, 1 Mo. App. 93, Sec. 235. Dinkins vs. Bailey, 23 Miss. 284, Sec. 237. Dilley vs. State, 2 Idaho 1012, Sec. 245. Dole vs. ■young, 24 Pick. 250, See! 1, 48. Doughty vs. Savage, 28 Conn. 146, Sec. 15. Domestic S. M. Co. vs. Jackson, 15 B. J. Lea 418, Sec. 15. Douglas vs. Rathbone, 5 Hill 143, Sec. 68. vs. Reynolds, 7 Peters 122, Sec. 18. Douglass vs. Ferris, 138 N. Y. 192, Sec. 242. vs. Kessler, 57 Iowa 63, Sec. 241. vs. Reynolds, 7 Pet. 113, Sec. 60, 65, 68, 99. vs. Snow, 77 Me. 91, Sec. 46. Dorman vs. Bigelow, 1 Fla. 281, Sec. 27. Dobell vs. Hutchinson, 3 Ad. & Ell. 355, See. 29. Dock vs Boyd, 93 Pa. 92, Sec. 40. TABLE OF CASES. 581 (References are to sections.) Dows VS. Swett, 120 Mass. 332, Sec. 42. Dodge vs. Zimmer, 110 N. Y. 43, Sec. 42. Dorwin vs. Smith, 35 Vt. 69, Sec. 42. Dower vs. Chesebrougli, 36 Conn. 39, Sec. 47. Donley vs. Camp, 22 Ala. 659, Sec. 61. Dodgson vs. Henderson, 113 111. 360, Sec. 81, 83. Dodd vs. The State, 18 Ind. 56, Sec. 176. vs. Wilson, 4 Del. Ch. 399, Sec. 266. — vs. Winn, 27 Mo. 501, See. 114. Donnerbery vs. Oppenheimer, 15 Wash. 290, Sec. 119. Doolittle vs. Ferry, 20 Kans. 230, Sec. 127. Dolbeer vs. Livingston, 100 Cal. 617, Sec. 142. Doll vs. Grume, 41 Neb. 655, Sec. 149. Downey vs. O'Donnell, 86 111. 49 Sec. 153. Donnell vs. Manson, 109 Mass. 576, Sec. 161. Doane vs. Eldridge, 16 Gray 254, Sec. 169. Dover vs. Twombly, 42 N. H. 59, See. 171. Doepfner vs. The State, 36 Ind. Ill, Sec. 185. Doran vs. Butler, 74 Mich. 643, Sec. 188. vs. Davis, 43 Iowa 86, Sec. 303. Dobbs vs. The Justices, 17 6a. 624, Sec. 191. Dore vs. Covey, 13 Cal. 502, See. 198. Dowling vs. Polaek, 18 Cal. 625, Sec. 210. Dougherty vs. Dore, 63 Cal. 170, See. 213. Donahue vs. Johnson, 9 Wash. 187, Sec. 214. Dothard vs. Sheid, 69 Ala. 135, Sec. 225. Dow^biggen vs. Bourne, 2 Younge & Collier, 462, Sec. 266. Dowell vs. Richardson, 10 Ind. 573, Sec. 226. Dobie vs. Fidelity & Casualty Co., 95 Wis. 540, Sec. 298. Downer vs. Baxter, 30 Vt. 467, Sec. 300. Drummond vs. Prestman, 12 Wheat. 515, Sec. 18, 50. Drake vs. Seaman, 97 N. Y. 234, See. 27. vs. Smythe, 44 Iowa 410, Sec. 203. Drury vs. Young, 58 Md. 546, Sec. 30. Draughan vs. Bunting, 9 Ired. (N. C.) 10, Sec. 34, 74. vs. State, 35 Tex. Cr. Rep. 51, Sec. 248. Dry vs. Davy, 10 Ad. & Ell. 30, Sec. 52. Draper vs. Wood, 112 Mass. 315, Sec. 74. vs. Weld, 13 Gray 580, Sec. 114. Drolesbaugh vs. Hill, 64 O. S. 257, Sec. 181. Diinkwine vs. City of Bau Claire, 83 Wis. 428, Sec. 198. Drew vs. Lockett, 32 Beav. 499, Sec. 267. Dubois vs. Mason, 127 Mass. 37, Sec. 8. Duffy vs. Wunsch, 42 N. Y. 243, Sec. 38. Dustin vs. Hodgen, 47 111. 125, See. 50. Dun vs. Garrett, 93 Tenn. 650, See. 109. Dunn vs. Parsons, 40 Hun 77, Sec. 98. 582 TABLE OF CASES. (References are to sections.) Dunn vs. Slee, Holt N. P. 399, See. 88. vs. Sparks, 1 Ind. 397, Sec. 294. , vs. Wade, 23 Mo. 207, Sec. 136. Dupeo vs. Blake, 148 111. 453, Sec.- 92. Duker vs. Franz, 7 Bush (Ky.) 273, Sec. 73. Dumont vs. Williamson, 18 0. S. 515, Sec. 124. Dunlap vs. Eden, 15 Ind. App. 575, Sec. 143. vs. Foster, 7 Ala. 734, Sec. 280. Durnherr vs. Rau, 135 N. Y. 219, Sec. 149. Dunterman vs. Storey, 40 Neb. 447, See. 207. Dugger vs. Wright, 51 Ark. 232, See. 236, 280. Dugart vs. Commonwealth, 69 Ky. 305, Sec. 245. Durein vs. State, 38 Kan. 485, Sec. 248. Duncan vs. North & South Wales Bank, 6 Appeal Oases 1, Sec. 261. Durham vs. Craig, 79 Ind. 117, Sec. 272. Durbin vs. Kuney, 19 Oregon 71, Sec. 286. Dussol vs. Bruguiere, 50 Cal. 456, See. 292. Dung vs. Parker, 52 N. Y. 496, Sec. 25. Dwelley vs. Dwelley, 143 Mass. 509, Sec. 146. Dwenger vs. Geary, 113 Ind. 106, Sec. 146. Dyer vs. Gibson, 16 Wis. 580, Sec. 42. Dye vs. Dye, 21 O. S. 86, Sec. 95. vs. Scott, 35 0. S. 198, Sec 126. Eastwood vs. Kenyon, 11 Ad. & Ell. 438, Sec. 31. Easter vs. White, 12 O. S. 219, Sec. 34. Easterly vs. Barber, 66 N. Y. 433, Sec. 136, 295. Eastern Railroad Co. vs. Loring, 138 Mass. 381, Sec. 150. Eastman vs. Curtis, 4 Vt. 616, See. 165. vs. Foster, 8 Met. 19, Sec. -272. Eaton vs. Littlefield, 147 Mass. 122, See. 156. vs. Mayo, 118 Mass. 141, See. 58. vs. Waite, 66 Me. 221, See. 115. Earle vs. Earle, 49 N. Y. Super. Ct. 57, See. 198. Bberhardt vs. Wood, 2 Tenn. Ch. 488, See. 294. Ecker vs. Bohn, 45 Md. 278, See. 45. Eddy vs. Davidson, 42 Vt. 56, Sec. 37. vs. Moore, 23 Kan.- 113, See. 218. vs. Sturgeon, 15 Mo. 199, Sec. 96. Edie vs. East India Co., 2 Burr 1216, Sec. 124. Edmonston vs. Drake, 5 Pet. 637, Sec. 65. Edwaj-ds vs. Bedford Chair Co., 41 0. S. 17, See. 122. vs. Coleman, 6 T. B. Mon. (Ky.) 567, Sec. 81, 94. vs. Dick, 4 Barn. & Aid. 212, Sec. 121. vs. Edwards, 31 111. 474, See. 2ll vs. Pomeroy, 8 Col. 254, Sec. 218. TABLE OF CASES. 58S (References are to sections.) Edwards vs. United States, 103 U. S. 471, Sec. 163. Edmonds vs. Sheahan, 47 Tex. 443, See. 288. Edmunds vs. Harper, 31 Grat. (Va.) 637, See. 117. Edelen vs. White, 6 Bush (Ky.) 408, See. 136. Edgerly vs. Emerson, 23 N. H. 555,' Sec. 266. Egbert vs. Hanson, 70 N. Y. S. 383, See. 290. Egremont vs. Benjamin, 125 Mass. 15, Sec. 177. Eilbert vs. Finkbeiner, 68 Pa. St. 243, Sw. 8, 10, 129. Einstein vs. Marshall, 58 Ala. 153, Sec. 58. Ellis et al. vs. Johnson, 96 Ind. 383, Sec. 23. Ellis vs. Johnson, 83 Wis. 394, Sec. 234. vs. Jones, 70 Miss. 60, Sec. 66. vs. Wilmot, L. K. 10 Ex. 10, See. 100. Elliott vs. Black, 45 Mo. 372, Sec. 229. vs. Giese, 7 Harr. & J. 457, Sec. 27. vs. Jenness, 111 Mass. 29, See. 45. Ellison vs. Wisehart, 29 Ind. 32, See. 38. Ellsworth vs. Harmon, 101 111. 274, Sec. 51. Electric Appliance Co. vs. U. S. Fidelity & Guaranty Co., 110 Wis. 434, Sec. 143, 149, 260. Elkin vs. People, 4 111. 207, Sec. 174. Elder va. Kutner, 97 Cal. 490, Sec. 221. Ellicott vs. Warford, 4 Md. 85, See. 244. . Ellesmere Brewing Co. vs. Cooper, 1 Q. B. L. R. 75, Sec. 280. Emerson vs. Slater, 22 How. (U. S.) 28, Sec. 39. Emery vs. Baltz, 94 N. Y. 408, Sec. 71. vs. Burbank, 163 Mass. 326, Sec. 47. Emerine vs. O'Brien, 36 0. S. 491, See. 97. Emmitt vs. Brophy, 42 0. S. 82, Sec. 160. Ennis vs. Waller, 3 Black (Ind.) 472, Sec. 22. English vs. Darley, 2 Bos. & Pul. 61, Sec. 100. vs. Siebert, 49 Mo. App. 563, See. 114. Engler vs. People's Fire Ins. Co.; 46 Md. 322, Sec. 141, 148. Enright vs. Falvey, L. E. 4 Ir. 397, See. 107. Epenbaugh vs. Gooch, 15 Ky. L. Rep. 576, Sec. 213. Erie Co. Cavings Bank vs. Coit, 104 N. Y. 532, See. 57. Ernst Bros. vs. Hogue, 86 Ala. 502, Sec. 230. Erwin vs. Downs, 15 N. Y. 575, Sec. 104, 121. Estate of Ramsay vs. WMtbeek, 183 111. 550, Sec. 16. Estey vs. Harmon, 40 Mich. 645, See. 230. Eshleman vs. Boleniua, 114 Pa. 269, Sec. 285. Evans vs. Bell, 45 Tex. 553, See. 62. vs. Brembridge, 8 De G. M. & G. 100, Sec. 111. vs. Comm, 8 Watts (Pa.) 398, See. 194. vs. Daughtry, 84 Ala. 68, See. 109. va. Graden, 125 Mo. 72, See. 73, 79. vs. Hoare, L. R. 1 Q. B. 593, See. 30. 584 TABLE OF CASES. (References are to sections.) Evans vs. Keeland, 9 Ala. 42, See. 15, 105. vs. Lawton, 34 Fed. Rep. 233, Sec. 76. vs. McCormick, 167 Pa. 247, Sec. 66. vs. Populus, 22 La. Ann. 121, Sec. 163. vs. State Bank, 13 Ala. 787, Sec. 191. vs. Taylor, 60 Tex. 422, See. 234. Evansville Nat. Bank vs. Kaufmann, 93 N. Y. 273, Sec. 52. Evarts vs. Steger, 6 Ore. 55, Sec. 139. Everson vs. Gere^ 122 N. Y. 290, Sec. 51. Ewan vs. Brooks Waterfield Co., 55 O. S. 596, Sec. 8, 129, 133. Ewing vs. Logan, 40 Ind. 342, Sec. 129. Ex Parte Bishop, 15 Ch. Div. 400, Sec. 288. Garland, 4 Wall. 333, Sec. 163. GifFord, 6 Ves. 805, Sec. 102. 114. Harris, 52 Ala. 87, Sec. 166. Henderson, 6 Fla. 279, Sec. 197. Jacobs, L. R. 10 Ch. 211, Sec. 100. Kerwin, 8 Cow. 118, Sec. 20. Smith, 3 Bro. C. C. 1, See. 102. Snowden, In re Snowden, 17 Ch. Div. 44, Sec. 286. Waring et al., 2 Glyn & Jameson 404, Sec. 273. Yates, 2 De G. & J- 191, Sec. 75. Executors of White, 30iVt. 336, See. 296. Excelsior Needle Co. vs. Smith, 61 Conn. 56, Sec. 49. Eyre vs. HoUier, Lloyd & Gould 250, See. 73. Eyster's Appeal, 4 Harris 372, See. 183. Favorite, Admr., vs. Stidhan, 84 Ind. 423, See. 9. Famulener vs. Anderson et al., 15 O. S. 473, Sec. 20, 109. Farebrother vs. Simmons, 5 Bar. & Aid. 333, Sec. 22. vs. Wodehouse, 23 Beav. 18, Sec. 267. Faires vs. Cockerell, 88 Tex. 428, See. 293. vs. Lodanc, 10 Ala. 50, See. 36. Fair vs. Pengelly, 34 Up. Can. (Q. B.) 611, Sec. 82 Fain vs. Turner, 96 Ky. 634, Sec. 42. Fairchild vs. Hodges, 14 Wash. 117, Sec. 183. vs. Keith, 29 0. S. 156, Sec. 186. vs. North Eastern Mut. Life Assn., 51 Vt. 613, Sec. 160. Farrow vs. Respess, 11 Ired. Law. (N. C.) 170, Sec. 61, 67. Farwell vs. Smith, 12 Pick. 83, See. 69. vs. St. Paul Trust Co., 45 Minn. 495, Sec. 127. Parrar vs. Kramer, 5 Mo. App. 167, Sec. 76. Pawcett vs. Freshwater, 31 O. S. 637, Sec. 83. Fawcetts vs. Kimmey, 33 Ala. 261, See. 261. Fay vs. Edmiston, 25 Kan. 439, See. 193. TABLE or CASES. 585 (References are to sections.) Fay vs. Richardson, 7 Pick. 91, Sec. 141. vs. Tower, 58 Wis. 286, Sec. 94. Fasanaeht vs. Erasing Gagen Co., 18 Ind. App. 80, Sec. 106. Farmers Bank vs. Braden, 145 Pa. 473, Sec. 106. vs. Raynolds, 13 0. 85, Sec. 99. vs. Teeters, 31 O. S. 36, See. 291. Farmers & Traders Bank vs. Fidelity & Deposit Co., 22 Ky. L. Rep. 22, Sec. 265. Farmington vs. Hobart, 74 Me. 416, Sec. 160. vs. Stanley, 60 Me. 472, Sec. 106, 179. Faulkner vs. Faulkner, 73 Mo. 327, Sec. 132. Fall River Nat'l Bank vs. Slade, 153 Mass. 415, Sec. 118. Farr vs. Ricker, 46 0. S. 265, Sec. 126, 127. Fassin vs. Hubbard, 55 N. Y. 465, Sec. 127. Falconer vs. Shoves, 37 Ark. 386, Sec. 168. Fahnestoek's Appeal, 104 Pa. 46, Sec. 183. Fahnestock vs. Gilham, 77 111. 637, See. 228. Faurot vs. Gates, 86 Wis. 569, Sec. 290. Fawkner vs. Baden, 89 Ind. 587, Sec. 227. Fessenden vs. Summers, 62 Cal. 484, See. 8, 129. Fetrow vs. Wiseman, 40 Ind. 148, See. 11. Ferrell vs. Maxwell, 28 O. S. 383, Sec. 34, 282. Ferrer vs. Barrett, 4 Jones Eq. (N. C.) 455, Sec. 287. Fehllnger vs. Wood, 134 Pa. 517, Sec. 40. Featherstone vs. Hendrick, 59 111. App. 497. Sec. 57, 132. Fennell vs. McGowan, 58 Misc. 261, Sec. 99. vs. McGuire, 21 Up. Can. (C. P.) 134, Sec. 59, 71. ■ Fewlass vs. Keeshan, 88 Fed. Rep. 573, See. 71, 119. Ferguson vs. Glidwell, 48 Ark. 195, See. 219. vs. Kinnaull, 9 CI. & Fin. 251, Sec. 186. vs. Turner, 7 Mo. 497, Sec. 99. Fenter vs. Obaugh, 17 Ark. 71, Sec. 105. Fertig vs. Bucher, 3 Pa. 308, See. 111. Ferry vs. Burchard, 21 Conn. 597, See. 167. Feigert vs. State, 31 0. S. 432, See. 180, 189. Fearons vs. Wright, 6 Ky. L. Rep. 747, See. 201. Feamster vs. Withrow, 12 W. Va. 611, Sec. 299. Feemster vs. Anderson, 6 T. B. Mon. (Ky.) 537, Sec. 202. Felton vs. Bissell, 25 Minn. 15, Sec. 297. Firman vs. Blood, 2 Kans. 496, Sec. 8. First Nat'l Bank Dubuque vs. Carpenter, 41 Iowa, 518, Sec. 65. First Nat'l Bank vs. Chalmers, 144 N. Y. 432, See. 43. vs. Crabtree, 86 la. 731, Sec. 123. vs. Fiske, 133 Pa. 241, Sec. 49. vs. Gaines, 87 Ky. 597, Sec. 112. vs. Lineberger, 86 N. C. 454, See. 82. vs. Marshall, 73 Me. 79, Sec. 129. 586 TABLE OF CASES. (References are to sections.) First Nat'l Bank vs. Northwestern Nat. Bank, 40 111. App. 640, Sec. 121. vs. Payne, 111 Mo. 291, Sec. 8, 133. vs. Rogers, 13 Minn. 407, See. 404. vs. Shreiner, 110 Pa. 188, Sec. 101. vs. Wheeler, 12 Tex. Civ. App. 489, Sec. 272. First Bank vs. Babcoek, 94 Cal. 96, Sec. 67. vs. Homesly, 99 N. C. 531, Sec. 115. vs. Wood, 71 N. Y. 405, See. 116. First Mass. Turnpike Co. vs. Field, 3 Mass. 201, Sec. 159. Fitzgerald vs. Staples et al., 88 111. 234, See. 20, 139. Fidelity & Casualty Co. vs. Crays, 76 Minn. 450, Sec. 259. vs. Eichhoflf, 63 Minn. 170, Sec. 259. vs. Gate City Nat. Bank, 97 Ga. 634, Sec. 257. vs. Lawler, 64 Minn. 144, Sec. 34. Fidelity & Deposit Co. vs. Colvin & Jackson, 83 Mo. App. 204, Sec. 153. vs. Singer, 50 Atl. Rep. 518, See. 260. Fidelity Mutual Life Assn. vs. Dewey, 54 L. R. A. 945, Minn., Sec. 107. Findlay vs. Hosmer, 2 Conn. 350, Sec. 269. Findley vs. Hill, 8 Ore. 247, Sec. 84. Firemen's Ins. Co. vs. Wilkinson, 35 N. J. Eq. 160, Sec. 86. Fire Association of Philadelphia vs. Ruby, 49 Neb. 584, See. 193. Fire, etc., Assurance Co. vs. Thompson, 68 Cal. 208, See. 106. Fish vs. Glover, 154 111. 86, See. 115. Fisher vs. Columbia Bldg. & Loan Assn., 59 Mo. App. 430, Sec. 262. vs. Stockebrand, 26 Kan. 565, Sec. 96. Fishburn vs. Jones, 37 Ind. 119, Sec. 105, 145. Fishback vs. Weaver, 34 Ark. 569, Sec. 270. Field vs. Holland, 6 Cranch 8, See. 118. vs. New Orleans Newspaper Co., 21 La. Ann. 24, Sec. 133. Fielding vs. Waterhouse, 8 Jones & Spen. 424, Sec. 98. Fidler vs. Hershey, 90 Pa. 363, Sec. 116. Finch vs. State, 71 Tex. 52, Sec. 175. Fitzpatrick's Admr. vs. Hill, 9 Ala. 783, Sec. 271. Fitzpatrick vs. Todd, 79 Ky. 524, Sec. 205. Flannagan vs. Cleveland, 44 Neb. 58, Sec. 201, 203, 207. Flentham vs. Steward, 45 Neb. 640, Sec. 67. Fletcher vs. Austin, 11 Vt. 447, Sec. 74. vs. Menken, 37 Ark. 206, Sec. 271. Flemming vs. Barden, 126 N. C. 450, See. 83. vs. Odum, 59 Ga. 362, Sec. 100. Flournoy vs. Jefifersonville, 17 Ind. 169, Sec. 186. Floyd vs. Hamilton, 33 Ala. 235, See. 225. Foster, Admx., vs. Wise, Admr., 46 0. S. 26, Sec. 235. Foster vs. Barney, 3 Vt. 60, See. 68. vs. Clark, 19 Pick. 329, Sec. 157. vs. Commonwealth, 35 Pa. 148, Sec. 239. vs. Davis, 46 Mo. 268, Sec. 183. TABLE OF CASES. 587 (References are to sections.) Foster vs. Epps, 27 111. App. 235, Sec. 202. vs. Hooper, 2 Mass. 572, See. 119. vs. Metts, 55 Miss. 77, Sec. 187. vs. Trustees of Athenaeum, 3 Ala. 302, Sec. 266. Fond-du-Lac Harrow Co. vs. Bowles, 54 Wis. 425, Sec. 76. vs. Haskins, 51 Wis. 135,i Sec. 69. Fowler vs. Alexander, 1 Heisk. (Tenn.) 425, Sec. 112. Fowler vs. Allen, 32 S. C. 229, Sec. 74. vs. Brooks, 13 N. H. 240, See. 94. vs. Gordon, 5 Ky. L. Rep. 332, Sec. 204. Ford vs. Beard, 31 Mo. 459, Sec. 82. vs. Beech, 11 Q. B. 852, Sec. 93. vs. Loomis, 62 Iowa 586, Sec. 214. Forst vs. Leonard, 112 Ala. 296, Sec. 143. Fourth JSTat. Bank vs. Mayer, 96 Ga. 728, Sec. 225. vs. Spinney, 47 Hun 293, Sec. 144, 150. . Forniquet vs. Tegarden, 24 Miss. 96, Sec. 157. Follansbee vs. Johnson, 28 Minn. 311, See. 160. Fogel vs. Dussault, 141 Mass. 154, Sec. 198. Foo Long vs. Amer. Surety Co., 146 N. Y. 251, See. 203. Forbes vs. Jackson, 19 Ch. D. 615, Sec. 261, 267. vs. McHugh, 152 Mass. 412, Sec. 234. Fogarty vs. Ream, 100 111. 266, Sec. 241. Folsom vs. Carli, 5 Minn. 333, Sec. 266. Franklin Ave. Sav. Institute vs. Board of Education, 75 Mo. 408, Sec. 146. Franklin Bank vs. Cooper, 36 Me. 179, Sec. 15, 145. vs. Stevens, 39 Me. 532, Sec. 15, 106. Prankel vs. Stern, 44 Cal. 168, Sec. 225. Frank vs. Edwards, 8 Welsh. H. & G. 214, Sec. 150. French vs. Bates, 149 Mass. 73, See. 70. vs. Marsh, 29 Wis. 649, Sec. 63. vs. Ryan, 104 Mich. 625, See. 110. Freeland vs. Compton, 30 Miss. 424, Sec. 84. Freeholders vs. Wilson, 16 N. J. L. 110, Sec. 173. Freeman's Bank vs. Perkins, 18 Me. 292, Sec. 121. Freeman's Nat'l Bank vs. National Tube Works Co., 151 Mass. 413, Sec. 125. Freeman vs. Davis, 7 Mass. 200, Sec. 227. Fraser vs. Little, 13 Mich. 198, Sec. 231. Frazer vs. Jordan, 8 El. & Bl. 303, Sec. 93. Frahm vs. Walton, 130 Cal. 396, Sec. 210. Fray vs. Blackburn, 3 Best & Sm. 576, Sec. 183. Freaner vs. Yingling, 37 Md. 491, Sec. 98. Frelinghuysen vs. Baldwin, 16 Fed. Rep. 452, Sec. 107. Friend vs. Smith Gin Co., 59 Ark. 86, Sec. 98. Frink vs. Peabody, 26 111. App. 390, Sec. 291. vs. Southern Express Co., 82 Ga. 33, Sec. 148, 155. 588 TABLE OF OASES. (References are to sections.) Friedman vs. Lemle, 38 La. Ann. 654j Sec. 205. Friedline vs. State, 93 Ind. 366, Sec. 248. Friberg vs. Donovan, 23 111. App. 58, Sec. 263, 280. Frownfelter vs. State, 66 Md. 80, Sec. 173. Frost vs. Jordan, 37 Minn. 544, See. 225. Fullerton vs. Bank of U. S., 1 Pet. 605, Sec. 121. vs. Hill, 40 Kan. 558, Sec. 8, 112, 129, 132. vs. Sturges, 4 O. S. 529, Sec. 109. Fuller vs. Aylesworth, 75 Fed. Eep. 694, Sec. 204. vs. Davis, 1 Gray 612, Sec. 104, 249. vs. Hapgood, 39 Vt. 617, Sec. 270, 291. vs. McDonald, 8 Greenl. 213. Sec. 126. vs. Scott, 8 Kan. 25, Sec. 16, 67, 137. """■ vs. Tomlinson, 58 Iowa 111, Sec. 99. Fullam vs. Adams, 37 Vt. 391, Sec. 40. Furness vs. Read, 63 Md. 1, Sec. 219. Furnold vs. Bank, 44 Mo. 336, Sec. 266. iFulkerson vs. Brownlee, 69 Mo. 371, Sec. 265. Fuaz vs. Trager, 39 La. Ann. 292, Sec. 222. G Gans vs. Carter & Aiken, 77 Md. 1, Sec. 13. vs. Thieme, 93 N. Y. 225, Sec. 271, 276. Gay vs. Mott, 43 Ga. 252, Sec. 16. vs. Parpart, 101 U. S. 391, Sec. 198. vs. Ward, 67 Conn. 147, Sec. 71. Gates vs. Bell, 3 La. Ann. 62, Sec. 22. vs. McKee, 13 N. Y. 236, Sec. 18, 50, 60. Gard vs. Stevens, 12 Mich. 292, Sec. 18, 59, 96. Gardner vs. Brown, 22 Nev. 156, Sec. 231. vs. Cooper, 9 Kans. App. 587, Sec. 140. vs. Walsh, 5 El. & Bl. 83, Sec. 75. vs. Watson, 76 Tex. 25, Sec. 50, 73. Gardiner vs. Woodyear, 1 Ohio 170, 177, See. 198. Garner vs. Hudgins, 46 Mo. 399, Sec. 34, 39, 296. Garnett vs. Farmers' Nat. Bank, 91 Ky. 614, See. 150. Gannett vs. Blodgett, 39 N. H. 150, Sec. 262. Gage vs. Lewis, 68 111. 604, Sec. 110, 298. vs. Mechanics' Nat. Bank, 79 111. 62, Sec. 61. Gamage vs. Hutchins, 23 Me. 565, Sec. 66, 67. Gaff vs. Sims, 45 Ind. 262, Sec. 68. Gammell vs. Parramore, 58 Ga. 54, See. 70. Galbraith vs. Fullerton, 53 111. 126, Sec. 83. Gallager vs. Brunei, 6 Cowen 346, Sec. 110. Garrett vs. Logan, 19 Ala. 344, Sec. 214. vs. Shove, 15 R. I. 538, See. 139. TABLE OF CASES. 589 (References are to sections.) Gatchell vs. Morse, 81 Me. 205, Sec. 146. Gandy vs. Gandy, L. E., 30 Ch. Div. 57, See. 160. Gaussen vs. United States, 97 U. S. 584, Sec. 170. Gaylor vs. Hunt, 23 0. S. 255, Sec. 186. Garlinghouse vs. Jacobs, 29 N. Y. 297, Sec. 189. Garlin vs. Strickland, 27 Me. 443, Sec. 226. Garvervs. Tisinger, 46 0. S. 56, Sec. 244. Gadsden vs. Brown, Speer's Eq. (S. 0.) 37, Sec. 276. Gaskill vs. Wales, 36 N. J. Eq. 527, Sec. 261. Gasquet vs. Oakey, 19 La. 76, Sec. 301. George vs. Andrews, 60 Md. 26, Sec. 90. vs. Bisehoff, 68 111. 236, Sec. 205. vs. Elms, 46 Ark. 260, Sec. 238. vs. Hoskins, 30 S. W. Rep. (Ky.) 406, Sec. 34. Getty vs. Binsse, 49 N. Y. 385, Sec. 69, 119. German American Savings Bank vs. Fritz, 68 Wis. 390, Sec. 266, 270. German Bank vs. Auth, 87 Pa. 419, Sec. 148. vs. Foreman, 138 Pa. 474, Sec. 101. German Savings Inst. vs. Vahle, 28 111. App. 557, Sec. 86. Germania Fire Ins. Co. vs. Hawks, 55 Ga. 674, Sec. 161. Geneser vs. Wissner, 69 la. 119, Sec. 132. Gerard vs. Cowperthwait, 21 N. Y. S. 1092, See. 153. Gerber vs. Ackley, 32 Wis. 233, Sec. 181. vs. Sharp, 72 Ind. 553, Sec. 266. Ghiselin vs. Ferguson, 4 Har. & J. (Md.) 522, Sec. 265. Gilpin vs. Hord, 85 Ky. 213, Sec. 202, 205. vs. Marley, 4 Houst. (Del.) 284, Sec. 8, 129, 131. Gillighan vs. Boardman, 29 Me. 79, See. 27. Gillilan vs. Ludington, 6 W. Va. 128, Sec. 115. Gibbs vs. Blanohard, 15 Mich. 292, Sec. 37.^ vs. Johnson, 63 Mich. 671, Sec. 109, 216. Gill vs. Morris, 11 Heisk. 614, Sec. 103. Gillespie vs. Campbell, 39 Fed. Rep. 724, Sec. 136. vs. Torrance, 25 N. Y, 306, Sec. 117. ~~ — Givens vs. Merchants' Nat. Bank, 85 111. 448, Sec. 136. Gibbens vs. Pickett, 31 Pla. 147, Sec. 165. Gibson vs. Mitchell, 16 Fla. 519, Sec. 290. vs. Shehan, 5 App. D. C. 391, Sec. 280. vs. Rix, 32 Vt. 824, Sec. 158. Gilkey vs. Cook, 60 Wis. 133, Sec. 165. Gilmore vs. Crowell, 67 Barb. 62, Sec. 223. Giles vs. Brown, Administrator, 60 Ga. 658, Sec. 237. Gillett vs. Wiley, 126 111. 310, Sec. 242. Gingrich vs. People, 34 111. 448, Sec. 249. Gilbert vs. Neely, 35 Ark. 25, Sec. 265. Gifford vs. Rising, 12 N. Y. Supp. 430, Sec. 266. Gieseke vs. Johnson, 115 Ind. 308, Sec. 301. 590 TABLE OF CASES. (References are to sections.) Glass vs. Thompson, 9 B. Mon. (Ky.) 237, Sec. 97. Glasscock vs. Hamilton, 62 Tex. 143, Sec. 114, 286, 292. Glasgow vs. State, 41 Kans. 333, Sec. 249. Gleason vs. Briggs, 28 Vt. 135, Sec. 36. Gleeson's Estate, 192 Pa. 279, Sec. 200, 205. Glenn vs. Morgan, 23 W. Va. 467, Sec. 83. Glencoe vs. People, 78 111. 382, Sec. 165. Globe Bank vs. Small, 25 Me. 366, Sec. 67. Glazier vs. Douglass, 32 Conn. 393, Sec. 101. Good vs. Martin, 95 U. S. 90, Sec. 8, 112, 128, 129, 130, 131, l33. Goodall vs, Wentworth, 20 Me. 322, Sec. 286. Goodbar vs. Lindsley, 51 Ark. 380, Sec. 225. Goodman vs. Chase, 1 B?,rn. & Aid. 297, Sec. 38. Goodrich vs. Tracy, 43 Vt. 314, See. 97. Goodwin vs. Blake, 3 T. B. Mon. (Ky.) 106, See. 156. vs. Francis, L. E., 5 C. P. 295, Sec. 30. vs. Eobarts, L. R., 10 Exeh. 337, Sec. 120. Goodwine vs. State, 81 Ind. 109, See. 173. Goodwyn vs. Hightower, 30 Ga. 249, Sec. 82. Goodyear Dental Vulcanite Co. vs. Bacon, 151 Mass. 460, Sec. 140. Gosman vs. Cruger, 69 N. Y. 87, See. 11. Goetz vs. Foos, 14 Minn. 265, Sec. 31. Gould vs. Ellery, 39 Barb. 163, Sec. 51. vs. Kobson, 8 East. 580, Sec. 96. vs. Steyer, 75 Ind. 50, "Sec. 237. Gordon vs. Moore, 44 Ark. 349, Sec. 114. vs. Price, 10 Ired. 385, Sec. 85. vs. Eixey, 86 Va. 853, Sec. 286. Gosserand vs. Lacour, 8 La. Ann. 75, Sec. 88, 114. Godfrey vs. Crisler, 121 Ind. 203, Sec. 97. vs. Rice, 59 Me. 308, Sec. 292, 301. Goff vs. Bankston, 35 Miss. 518, See. 11. Goupy vs. Harden, 7 Taunt. 159, Sec. 127. Goldman vs. Davis, 23 Cal. 256, See. 127. Gold vs. Bailey, 44 111. 491, Sec. 234. Governor vs. Chuteau, 1 Mo. 731, Sec. 237. vs. Dodd, 81 111. 162, Sec. 176. vs. Gordan, 15 Ala. 72, Sec. 163. vs. Lagow, 43 111. 134, Sec. 169. vs. Montfort, 23 N. C. 15, Sec. 192. vs. Pearce, 31 Ala. 465, Sec. 181. Goebel vs. Stevenson, 35 Mich. 172, Sec. 222. Goux vs. Moucla, 30 La. Ann. 743, Sec. 240. Gossin vs. Brown, 11 Pa. 527, Sec. 267. Golsen vs. Brand, 75 111. 148, See. 292, 297. Greenough vs. Smead, 3 0. S. 416, Sec. 8, 9, 112, 128, 129, 131, 132, 133. Green Bay & Minn. R. R. Co. vs. Union Steamboat Co., 107 U. S. p«. Sec. 11. TABLE OF CASES. 591 (References are to sections.) Graham vs. Bradley, 5 Humph. (Tenn.) 476, Sec. 63. vs. Maguire, 39 Ga. 531, Sec. 121. vs. Marks, 98 Ga. 67, See. 14, 103. vs. Ringo, 67 Mo. 324, See, 117. vs. Rush, 73 Iowa 451, Sec. 75. vs. State, 66 Ind. 386, Sec. 164. Griffith vs. Robertson, 15 Hun 344, Sec. 99. vs. Rundle, 23 Wash. 453, See. 149. vs. Sitgreaves, 90 Pa. St. 161, See. 14. Griffiths vs. Hardenbergh, 41 N. Y. 464, Sec. 157. Graves vs. Bank, 10 Bush. (Ky.) 23, Sec. 106. vs. Lebanon Nat. Bank, 10 Bush. (Ky.) 23, Sec. 15, 159. vs. Sittig, 5 Wis. 219, Sec. 226. vs. Tucker, 18 Miss. 9, Sec. 145. Graves et al. vs. Tucker, 10 Smedes & M. 9, Sec. 15. Gray vs. Farmers Bank, 81 Md. 631, Sec. 115. vs. Herman, 75 Wis. 453, Sec. 41. vs. Mathias, 5 Ves. Jr. 286, See. 156. vs. Robinson, 33 Pac. Rep. (Ariz.) 712, Sec. 231. vs. Seckham, L. R., 7 Ch. App. 680, Sec. 269. vs. State, 43 Ala. 41, Sec. 248. vs. The State, 78 Ind. 68, Sec. 19. Grey vs. Friar, 15 Q. B. 891, Sec. 153. Green County vs. Wilhite, 29 Mo. App. 459, Sec. 20, 109. Green vs. Blunt, 59 la. 79, Ark. 229, Sec. 98. vs. Brookins, 23 Mich. 48, Sec. 32. vs. Burke, 23 Wend. 490, Sec. 114. vs. Burrows, 47 Mich. 70, Sec. 135. vs. Burton, 59 Vt. 423, Sec. 39. vs. Conrad, 114 Mo. 651, Sec. 162. vs. Cresswell, 10 Ad. & Ell. 453, Sec. 32, 33. -~~- vs. Hadfield, 89 Wis. 138, Sec. 43. vs. Milbank, 56 How. Pr. 382, Sec. 292. vs. Richardson, 4 Colo. 584, Sec. 43. vs. Solomon, 80 Mich. 234, Sec. 38. vs. Young, 8 Me. 14, Sec. 71. Green Fruit Co. vs. Pate, 99 Ga. 60, Sec. 225. Gregory vs. Logan, 7 Blackf. (Ind.) 112, Sec. 27. vs. O'Brian, 13 N. J. L. 11, See. 201. Grafton vs. Cummings, 99 U. S. HI, Sec. 29. Grafton Bank vs. Woodward, 5 N. H. 99, Sec. 136. Grant vs. Ludlow, 8 0. S. 1, Sec. 272. vs. Naylor, 4 Crauch 224, Sec. 52. vs. Shaw, 16 Mass. 341, Sec. 42. vs. Smith, 46 N. Y. 93, Sec. 76. Graff vs. Foster, 67 Mo. 512, Sec. 46. Graff & Co. Estate, 139 Pa. 69, Sec. 262. 592 TABLE OF CASES. (References are to sections.) Gridley vs. Capen, 72 111. 11, Sec. 48, 70. Griffin vs. Hasty, 94 N. C. 438, Sec. 157. vs. Levee Comrs., 71 Miss. 767, Sec. 183. vs. Rembert, 2 Rich. N. S. (S. C.) 410, Sec. 51. Greenville vs. Ormand, 5 S. C. 58, See. 78. Greenfield vs. Wilson, IS Gray 384, Sec. 181. Greenlaw vs. Pettit, 87 Tenn. 467, Sec. 268. Greenwood vs. Taylor, 1 Russ. & M. 185, Sec. 269. Grocers' Bank vs. Kingman, 16 Gray 473, See. 80, 150. Greely vs. Dow, 2 Met. 176, Sec. 93. Grisard vs. Hinson, 50 Ark. 229, Sec. 99. Grundy vs. Meighan, 7 Ir. L. Rep. 519, Sec. 102. Grove vs. Johnstone, L. R., 24 Ir. 352, Sec. 104. vs. Van Duyn, 44 N. J. L. 654, See. 185. Grim vs. Jackson Tp., 51 Pa'. 219, Sec. 109. vs. School Directors, 51 Pa. 219, Sec. 141. Graul vs. Strutzel, 53 la. 712, Sec. 121. Gradle vs. Hoffman, 105 111. 147, Sec. 165. Great Falls vs. Hanks, 21 Mont. 83, Sec. 173. Grider vs. Tally, 77 Ala. 422, Sec. 186. Grace vs. Mitchell, 31 Wis. 533, Sec. 189. Gross vs. Bouton, 9 Daly (N. Y.) 25, Sec. 198. vs. Davis, 87 Tenn. 226, Sec. 288, 289, 300. Grieff vs. Kirk, 17 La. Ann. 25, Sec. 202i Grimmet vs. Henderson, 66 Ala. 521, Sec. 238. Grubbs vs. Wysors, 32 Gratt. 127, Sec. 267. Grissom vs. Commercial Bank, 87 Tenn. 350, Sec. 274. Graeff's Appeal, 79 Pa. St. 146, See. 269. Gring's Appeal, 89 Pa. 336, Sec. 278. Guardian Pire Assurance Co. vs. Thompson, 68 Cal. 208, See. 15. Guarantee Co. of N. A. vs. The Mechanics' Sav. Bank & Trust Co., 183 U. S. 402, Sec. 257. Gunn vs. Geary, 44 Mich. 615, Sec. 17. Guynn vs. MeCauley, 32 Ark. 97, Sec. 46. Gunnis vs. Cluff, 111 Pa. 512, Sec. 220. vs. Weigley, 114 Pa. 191, Sec. 103. Guggenheim vs. Rosenfeld, 68 Tenn. 533, See. 44. Guild vs. Butler, 127 Mass. 386, Sec. 90, 98, 100, 136.— vs. Conrad, L. R., 2 Q. B^iv. 885, See. 282. vs. Thomas, 54 Ala. 414, Sec. 145. Gustine vs. Union Bank, 10 Rob. (La.) 412, See. 92. Gunz vs. Geigling, 108 Mich. 295, Sec. 129, 132. Gudtner vs. Kilpatrick, 14 Neb. 347, Sec. 207. Guthrie vs. Fisher, 2 Idaho 101, Sec. 222. vs. Ray, 36 Neb. 612, Sec. 261. Gwynne vs. Burnell, 7 CI. & Fin. 572, See. 173. TABLE OF CASES. 593 (References are to sections.) H Hassell vs. Long, 2 M. & S. 363, Sec. 2. Harris vs. Brocks, Si Pick. 195, Sec. 113, 284. vs. Harris, 23 Gratt. 737, Sec. 140. vs. Harrison, 78 N. C. 202, Sec. 265. vs. Lee, 1 P. Wms. 482, Sec. 276. vs. Newell, 42 Wis. 687, Sec. 6, 115, 298. vs. Pierce, 6 Ind. 162, Sec. 129. vs. Rivers, 53 Ind. 216, See. 275. vs. State, 60 Ark. 212, Sec. 245, 248. vs. Warner, 13 Wend. 400, Sec. 281. vs. Young, 40 Ga. 65, Sec. 38. Harriss vs. Frank, 29 Kan. 200, Sec. 264, 266. Harrison vs. Clark, 87 N. Y. 572, Sec. 238. vs. HoflF, 102 N. C. 25, See. 198. vs. Lumbermen's Ins. Co., 8 Mo. App. 37, Sec. 106, 145. vs. McKim, 18 la. 485, See. 126. vs. Price, 25 Grat. 553, See. 115. vs. Sawtell, 10 Johns. 242, Sec. 39. -- — vs. Union Pacific Ry. Co., 13 Fed. Rep. 522, Sec. 11. vs. Wilkin, 69 N. Y. 412, Sec. 19. Hately vs. Pike, 162 111. 241, Sec. 8, 133. Hauer & McNaix vs. Patterson, 84 Pa. 274, Sec. 10. Earner vs. Batdorf, 35 0. S. 113, Sec. 97. vs. Dipple, 31 0. S. 72, See. 11. Hawes vs. Armstrong, 1 Bing. (N. C.) 761, Sec. 26. vs. Merchant, 1 Curt. 136, Sec. 14. Hazard vs. Griswold, 21 Fed. Rep. 178, Sec. 14, 103. Haney vs. People, 12 Colo. 345, Sec. 14. Ham vs. Greve, 34 Ind. 18, Sec. 15, 105, 106. Hargreave vs. Smee, 6 Bing. 244, Sec. 18, 59. Hargreaves vs. Parsons, 13 Mees. & Wels. 561, Sec. 31. Handley vs. Filbert, 73 Mo. 34, See. 19. vs. Heflin, 84 Ala. 600, Sec. 290. Harbaugh et al. vs. Albertson, 102 Ind. 69, Sec. 19. Hawkins vs. Ball's Adm., 18 B. Mon. 485, See. 69. vs. Chace, 19 Pick. 502, Sec. 22, 30. vs. New Orleans Print. & Pub. Co., 29 La. Ann. 134, Sec. 54. Hammond vs. Hannin, 21 Mich. 374, Sec. 22. vs. Myers, 30 Tex. 375, Sec. 278. Halsa vs. Halsa, 8 Mo. 303, Sec. 27. Hargroves vs. Cook, 15 Ga. 321, Sec. 27. Hardman vs. Bradley, 85 111. 162, Sec. 36. Hartman vs. Banner, 74 Pa. 36, Sec. 83. Hammil vs. Hull, 4 Colo. App. 290, Sec. 40. Hahn vs. Maxwell, 33 111. App. 261, Sec. 41. Hancock vs. Council, 96 Ga. 778. Sec. 44. 594 TABLE OF CASES. (References are to sections.) Hancock vs. Fleming, 103 Ind. 533, Sec. 261. vs. Hazzard, 12 Cush. 112, Sec. 184. Haight vs. Brooks, 10 Ad. & Ell. 309, Sec. 50. Hall's Admx. vs. McHenry, 19 Iowa 521, Sec. 75. Hall vs. Auburn Co., 27 Cal. 256, Sec. 166. vs. Hall, 10 Humph. (Tenn.) 352, Sec. 297. vs. Monroe, 73 Me. 123, Sec. 227. vs. Rand, 8 Conn. 560, Sec 50. vs. State, 69 Miss. 529, See. 167. vs. Wisconsin, 103 U. S. 5, Sec. 163. Harboard vs. Cooper, 43 Minn. 466, Sec. 51. Harwood vs. Kiersted, 20 111. 367, See. 55. Hardy vs. Bern, 5 T. E. 540, Sec. 153. vs. Pool, 41 N. C. 28, Sec. 58. vs. United States, 71 Fed. Rep. 158, Sec. 248. Harding vs. Kuessner, 172 111. 125, Sec. 202. — vs. Tiflft, 75 N. Y. 461, Sec. 96. vs. Waters, 6 Lea 324, Sec. 129. Hardin vs. Carrico, 3 Met. (Ky.) 289, Sec. 180. Hardin's Admr. vs. Taylor, 78 Ky. 593, Sec. 242. Hart vs. Clouser, 30 Ind. 210, Sec. 72. vs. Minchen, 69 Fed. Rep. 520, Sec. 65. vs. United States, 95 U. S. 316, Sec. 179. vs. Western Railroad, 13 Met. 99, Sec. 265. Harts vs. Wendell, 26 111. App. 274, Sec. 231. Hayland vs. Habich, 150 Mass. 112, Sec. 71. Hamilton vs. Hooper, 46 Iowa 521, See. 75. vs. Johnston, 82 III. 39, Sec. 281. vs. Prouty, 50 Wis. 592, Sec. 84. vs. State, 32 Md. 348, Sec. 211. vs. Watson, 12 Clark & Fin. 109, Sec. 106. Hayes vs. Chicago Gravel Co., 37 111. App. 19, Sec. 212. vs. Joseph, 26 Cal. 535, Sec. 96. vs. Ward, 4 Johns. Ch. 123, Sec. 118, 261. vs. Wells, 34 Md. 512, Sec. 82, 84. Hays vs. Wilstach, 101 Ind. 100, Sec. 205. Halliday vs. Hart, 30 N. Y. 474, Sec. 82. Haydenville Bank vs. Parsons, 138 Mass. 53, Sec. 83. Hayden vs. Cabot, 17 Mass. 169, Sec. 300. vs. Cook, 34 Neb. 670, Sec. 152. vs. Keith, 32 Minn. 277, Sec. 209. vs. Thrasher, 18 Fla. 795, Sec. 298. Haden vs. Brown, 18 Ala. 641, Sec. 116. Hagey vs. Hill, 75 Pa. 108, Sec. 92. Harbert vs. Dumont, 3 Ind. 346, Sec. 93. vs. Gormley, 115 Pa. 237, Sec. 220. Halderman vs. Woodward, 22 Kas. 734, Sec. 95. TABLE OF CASES. 595 (References are to sections.) Hanson vs. Manley, 72 la. 48, Sec. 118. vs. Rounsavell, 74 111. 238, See. 96. Hand Mfg. Co. vs. Marks, 36 Oreg. 523, Sec. 96. Hartley vs. Colquitt, 72 Ga. 351, Sec. 249. vs. Sanford, 55 L. R. A. (N. J. Ct. of Err. & App.) 206, Sec. 3'. Hardwick vs. Wright, 35 Beav. 133, Sec. 98. Haly vs. Lane, 2 Atk. 181, Sec. 121. Hannum vs. Richardson, 48 Vt. 508, See. 124. Hatcher vs. Nat'l Bank, 79 Ga. 542, Sec. 135. Hatohett vs. Pegram, 21 La. Ann. 722, Sec. 292, 301. Hatch vs. Attleborough, 97 Mass. 533, Sec. 168, 191. vs. Douglas, 48 Conn. 116, Sec. 146. vs. Elkins, 65 N. Y. 489, Sec. 191. Hagerthy vs. Phillips, 83 Me. 336, Sec. 136, 295. Hale vs. Danforth, 46 Wis. 555, Sec. 136. Hacker's Appeal, 121 Pa. 192, Sec. 140. Harrisburg Sav. & Loan Assn. vs. U. S. Fidelity & Guaranty Co., 197 Pa. Sec. 150. Hauenstein vs. Gillespie, 73 Miss. 742, Sec. 152. Harrington's Administrator vs. Crawford, 61 Mo. App. 221, See. 157. Hardesty vs. Price, 3 Col. 556, Sec. 157. Harms vs. McCormick, .30 111. App. 125, Sec. 160. Haughton vs. Bayley, 31 N. C. 337, See. 161. Hager vs. Catlin, 18 Hun 448, Sec. 165. Harger vs. SpoflFord, 46 Iowa 11, Sec. 220. Havens vs. Lathene, 75 N. C. 505, Sec. 183. vs. Willis, 100* N. y. 482, Sec. 261. Halbert vs. State, 22 Ind. 125, Sec. 184. Hann vs. Lloyd, 50 N. J. L. 1, Sec. 189. Harshaw vs. McDowell, 89 N. C. 181, Sec. 198. Halaey vs. Flint, 15 Abb. Pr. (N. Y.) 367, Sec. 199. vs. Murray, 112 Ala. 185, Sec. 292. Handy vs. Burrton Land Co., 59 Kan. 395, Sec. 200. Hanby's Adm. vs. Henritze's Admr., 85 Va. 177, Sec. 263. Hawley vs. Gray Bros. Paving Co., 127 Cal. 560, Sec. 204. Hargis vs. Mayes, 20 Ky. L. Rep. 1965, Sec. 206. Hathaway vs. Davis, 33 Cal. 161, Sec. 207. Harless vs. Consumers' Gas Trust Co., 14 Ind. App. 545, Sec. 209. Harman vs. Howe, 27 Gratt. 676, Sec. 211. Harmony Nat. Bank's Appeal, 101 Pa. 428, See. 272. Hanna vs. McKenzie, 5 B. Mon. 314, Sec. 212. Hannibal & St. J. R. R. Co. vs. Shepley, 1 TMo. App. 254, See. 214. Hazelrigg vs. Donaldson, 59 Ky. 445, Sec. 219. Hayman vs. Hallam, 79 Ky. 389, Sec. 225. Hacker vs. Johnson, 66 Me. 21, Sec. 232. Hangsleben vs. People, 89 111. 164, See. 248. Hansford vs. Perrin, 6 B. Mon. (Ky.) 595, Sec. 220. 596 TABLE OF CASES. (References are to sections.) Harker vs. Irick, 10 N. J. Eq. 269, Sec. 235. Harper vs. McVeigh, 82 Va. 751, Sec. 297. vs. Kemble, 65 Mo. App. 514, Sec. 264. vs. Rosenberger, 56 Mo. App. 388, Sec. 266. Hatfield vs. Merod, 82 111. 113, See. 265, 297. Hartwell vs. Smith, 15 0. S. 200, Sec. 271. vs. Whitman, 36 Ala. 712, See. 270. Hampton vs. Phipps, 108 U. S. 260, Sec. 272. Hazelton vs. Valentine, 113 Mass. 472, Sec. 296. Harley vs. Stapleton's Adm., 24 Mo. 248, Sec. 301. Hare vs. Grant, 77 N. C. 203, Sec. 303. Hanish vs. Kennedy, 106 Mich. 455, Sec. 281. Harden vs. Carroll, 90 Wis. 350, Sec. 232. Harrah vs. Doherty, 111 Mich. 175, Sec. 295. Harshman vs. Armstrong, 43 Ind. 126, Sec. 295. Heims Brewing Co. vs. Flannery et al., 137 111. 309, Sec. 11. Henrie vs. Buck, 39 Kans. 381, Sec. 17. Henry vs. Ankrim, 39 Law Bull. (O.) 78, Sec. 149. Henry vs. Sneed, 99 Mo. 407, Sec. 19. Held vs. Bagwell, 58 Iowa 139, Sec. 21. Helt vs. Whittier, 31 0. S. 475, Sec. 202. Hetfield vs. Dow, 27 N. J. L. 440, Sec. 37. Headington vs. Neflf, 7 O. 231, Sec. 45. Heaton vs. Eldridge & Higgins, 56 O. S. 101, Sec. 47. Heyman vs. Dooley, 77 Md. 162, Sec. 57, 67. vs. Landers, 12 Cal. 107, Sec. 213. Heffield vs. Meadows, 4 C. P. Div. 595, See. 59. Hessell vs. Johnson, 63 Mich. 623, Sec. 72, 74, 109, 145. Henderson vs. Ardery, 36 Pa. 449, Sec. 81. vs. Huey, 45 Ala. 275, Sec. 98. vs. Marvin, 31 Barb. 297, Sec. 76. Herrick vs. Borst, 4 Hill 650, Sec. 116. vs. Carwan, 10 Johns. 224, Sec. 126. vs. Swartwout, 72 111. 340, Sec. 204. Hemenway vs. Stone, 7 Mass. 58, Sec. 128. Hemmingway vs. Poueher, 98 N. Y. 281, Sec. 200. Heise vs. Bumpass, 40 Ark. 547, See. 129. Heath vs. Hunter, 72 Me. 259, See. 202. vs. Lent, 1 Cal. 410, Sec. 225. vs. Shrempp, 22 La. Ann. 167, See. 193. vs. Van Cott, 9 Wis. 516, Sec. 129. Heidenheimer vs. Blumenkron, 56 Tex. 308, Sec. 133. vs. Brent, 59 Tex. 533, Sec. 180. Hert vs. Oehler, 80 Ind. 83, Sec. 136. Hess's Estate, 150 Pa. 346, Sec. 140. 69 Pa. 276, Sec. 262. Hessey vs. Heitkamp, 9 Mo. App. 36, Sec. 199. TABXE OP CASES. 597 (References are to sections.) Henneaey vs. Metzger, 152 111. 505, Sec. 153. Henricus vs. Englert, 137 N. Y. 488, Sec. 160. Hees vs. Nellis, 65 Barb. 440, See. 161. Henley vs. Mayor of Lyme, 5 Bing. PI, Sec. 163. Hetten vs. Lane, 43 Tex. 279, Sec. 173. Healdsburg vs. Mulligan, 113 Cal. 205, Sec. 184. Heidt vs. Minor, 89 Cal. 115, Sec. 188. Hentig vs. Collins, 1 Kan. App. 173, Sec. 200. Heinlen vs. Beans, 71 Cal. 295, Sec. 202. Healy vs. Newton, 96 Mich. 228, Sec. 207. Hertz vs. Kaufman, 46 111. App. 591, Sec. 232. Hester vs. State, 15 Tex. App. 418, Sec. 248. Hevener vs. Berry, 17 W. Va. 474, Sec. 261, 266. Helm's Admr. vs. Young, 9 B. Mon. (Ky.) 394, Sec. 272. Henley vs. Stemmons, 4 B. Mon. (Ky.) 131, See. 278. Hellams vs. Abercrombie, 15 S. C. 110, Sec. 296. Herman vs. Jeuchner, 15 Q. B. Div. 561, Sec. 296. Hendrick vs. Whittemore, 105 Mass. 23, Sec. 284. Hecht vs. Skaggs, 53 Ark. 291, See. 290. Himrod Furnace Co. vs. The Cleveland & Mahoning E. R. Co., 22 0. S., Sec. 28. Himrod vs. Baugh, 85 111. 435, Sec. 117. Hilton vs. Dinsmore, 21 Me. 410, Sec. 40. Hiudman vs. Langford, 3 Strob. 207, Sec. 40. Hinchman vs. Rutan, 31 N. J. L. 496, Sec. 45. Hippaeh vs. MaKeever, 166 111. 136, Sec. 57. Hirseh vs. Chicago Carpet Co., 82 111. App. 234, Sec. 57. Hiller vs. Howell, 74 Ga. 174, Sec. 96. Hill vs. Burke, 62 N. Y. Ul, Sec. 198. vs. Ely, 5 Serg. & E. 363, Sec. 126. vs. Haynes, 54 N. Y. 153, See. 189. vs. King, 48 O. S. 75, Sec. 266. vs. Morse, 61 Me. 541, Sec. 293. vs. Scales, 15 Tenn. 410, See. 140. vs. Shields, 81 N. C. 250, Sec. 126. vs. Thomas, 19 S. C. 230, Sec. 213. Hidden vs. Bishop, 5 R. I. 29, Sec. 118. Hightower vs. Moore, 46 Ala. 387, Sec. 119. Hirt vs. Hahn, 61 Mo. 496, See. 153. Hickeock vs. Bell, 46 Tex. 610, Sec. 204. Hinkle vs. Holmes, 85 Ind. 405, Sec. 205. Hinckley vs. Kreitz, 58 N. Y. 583, Sec. 206, 263, 266. Hibbard vs. MeKindley, 28 111. 240, See. 213. Hibbs vs. Blair, 14 Pa. 413, Sec. 216. Higgins vs. Mansfield, 62 Ala. 267, See. 225. Hieklin vs. Nebraska, etc.. Bank, 8 Neb. 463, Sec. 227. Hicks vs. Mendenhall, 17 Minn. 475, See. 228. 598 TABLE OF CASES. (References are to sections.) Hinkson vs. Comm., 14 Ky. L. Eep. 203, See. 248. Hiner vs. Newton, 30 Wis. 640, See. 275. Hiehborn vs. Fletcher, 66 Me. 209, See. 292. Holandsworth vs. Commonwealth, 11 Bush. (Ky.) 617, Sec. 12. Hollingsworth vs. Atkins, 46 La. Ann. 515, Sec. 220. vs. Tanner, 44 Ga. 11, Sec. 101, 274. Hollingshead vs. McKenzie, 8 Ga. 457, Sec. 46. Home Ins. Oo. vs. Holway, 55 Iowa, 571, Sec. 15, 106, 145. Home Bank vs. Newton, 8 111. App. 563, Sec. 101. vs. Waterman, 134 III. 461, Sec. 90. Howe Maeh. Co. vs. Farrington, 82 N. Y., Sec. 15, 113, 145. Howe vs. Buffalo, N. Y. & Erie E. B. Co., 37 N. Y. 297, Sec. 299. vs. Frazer, 2 Eob. (La.) 424, Sec. 263. vs. Merrill, 5 Cush. 81, Sec. 127, 132. Howe Co. vs. Farrington, 82 N. Y. 121, Sec. 99, 113. Howell vs. Parsons, 89 N. C. 230, Sec. 20, 139. Hoyle vs. Hoyle, L. E., 1 Ch. 84, Sec. 31. Hermans vs. Lambard, 21 Me. 308, Sec. 36. Hodgins vs. Heaney, 15 Minn. 185, Sec. 41. Hodgkins vs. Jackson, 70 Ky. 342, Sec. 43. Hodgson vs. Baldwin, 65 111. 532, Sec. 287. vs. Dexter, 1 Cranch C. C. 109, See. 178. vs. Hodgson, 2 Keen 704, Sec. 114. vs. Shaw, 3 Myl. & K. 183, Sec. 261, 266. Hooper vs. Hooper, 32 W. Va. 526, Sec. 43. vs. Hooper, 81 Md. 155, Sec. 50, 292. vs. Patterson, 32 Pac. Eep. (Cal.) 514, Sec. 214. Howard vs. Brewer, 37 0. S. 402, Sec. 46. Hocker vs. Gentry, 60 Ky. 463, Sec. 46. Holler vs. Eichards, 102 N. C. 545, Sec. 46. Hoey vs. Jarman, 39 N. J. Law 523, Sec. 50. Holland vs. Johnson, 51 Ind. 346, Sec. 98. vs. Teed, 7 Hare 50, Sec. 54. Hotchkiss vs. Barnes, 34 Conn. 27, Sec. 59. vs. Piatt, 8 Hun 46, Sec. 213. Hoffman Admx. vs. Fleming, 66 O. S. 143, Sec. 239. Hoffman vs. Bechtel, 52 Pa. 194, Sec. 63. vs. Moore, 82 N. C. 313, Sec. 132. Hoover vs. McCormiek, 84 Wis. 215, Sec. 67. vs. Mowrer, 84 Iowa 43, Sec. 291. Holmes vs. Day, 108 Mass. 263, Sec. 263. vs. First Nat. Bank, 38 Neb. 326, Sec. 126. vs. Preston, 71 Miss. 541, Sec. 67. vs.. Standard Oil Co., 183 111. 70, Sec. 155. vs. Steamer Bell Air, 5 La. Ann. 523, Sec. 202. Holme vs. Brunskill, 3 Q. B. Div. 495, Sec. 79. Hook vs. Pratt, 78 N. Y. 371, See. 125. TABLE OF CASES. 599 (References are to sections.) Hook vs. Rieheson, 115 111. 431, Sec. 297. Hooks vs. Branch Bank, 8 Ala. 580, Sec. 95, 301. Holt vs. Bodey, 18 Pa. *207, See. 98. vs. Green, 23 P. F. Smith 198, Sec. 156. Holliday vs. Brown, 33 Neb. 657, Sec. 99. vs. Cohen, 34 Ark. 707, Sec. 225. Hood vs. Hayward, 124 N. Y. 1, Sec. 114, 237. vs. Mathis, 21 Mo. 308, Sec. 202. vs. Morgan, 47 W. Va. 817, Sec. 293. HoUister vs. Davis, 54 Pa. 508, Sec. 117, 275. Holton vs. McCormick, 45 Ind. 411, See. 127. Hoare vs. Graham, 3 Camp. 57, Sec. 127. Horton vs. Manning, 37 Tex. 23, Sec. 129. vs. State, 30 Tex. 191, Sec. 248. Houck vs. Graham, 106 Ind. 195, Sec. 129, 132, 292. Hobson, In re, 61 Hun 504, Sec. 235. Hobson vs. Hall, 14 S. W. (Ky.) 958, Sec. 222. vs. Trevor, 2 P. Wms. 191, Sec. 153. Houghton vs. Milburn, 54 Wis. 554, Sec. 160. vs. Pattee, 58 N. H. 326, Sec. 153. Hosmer vs. True, 19 Barb. 106, Sec. 153. Hoagland vs. Segur, 38 N. J. L. 230, See. 155. Homer vs. Ashford, 3 Bing. 326, Sec. 156. Hoboken vs. Gear, 27 N. J. L. 265, See. 163. vs. Harrison, 30 N. J. L. 73, Sec. 164. Hoge vs. Norton, 22 Kan. 374, Sec. 222, 225. vs. Trigg, 4 Munf. (Va.) 150, Sec. 165, vs. Vintroux, 21 W. Va. 1, Sec. 239. HoUiman vs. Carroll, 27 Tex. 23, See. 181. Hobbs vs. Barefoot, 104 N. C. 224, Sec. 181. Hover vs. Barkhoof, 44 N. Y. 113, Sec. 189. Holcomb vs. Foxworth, 34 Miss. 265, See. 215. vs. Sawyer, 51 Cal. 417, See. 198. Hopkins vs. Orr, 124, U. S. 510, Sec. 202. Holbrook vs. Investment Co., 32 Oregon 104, Sec. 204. Howard Ins. Co. vs. Silverberg, 89 Fed. Rep. 168, Sec. 206. Hornback vs. Swope, 8 Ky. L. Rep. 533, See. 212. Holloway vs. HoUoway, 103 Mo. 274, Sec. 213. Holthaus vs. Hart, 9 Mo. App. 1, -See. 214. Holtham vs. Ryland, 1 Eq. Cases Abr. 18 pi. 8, Sec. 153. Hodges vs. State, 20 Tex. 493, Sec. 248. Howland vs. White, 48 111. App. 236, Sec. 265. Hoppes vs. Hoppes, 123 Ind. 397, Sec. 298. Hollinsbee vs. Ritehey, 49 Ind. 261, Sec. 301. Horn vs. Bray, 51 Ind. 555, See. 282. Hoggatt vs. Thomas, 35 La. Ann. 298, Sec. 282. Hoxie vs. National Bank, 20 Tex. Civ. App. 462, Sec. 293. GOO TABLE OF CASES. (References are to sections.) Hughes VS. Boone, 81 N. C. 204, Sec. 280. vs. Lawson, 31 Ark. 613, Sec. 40. vs. Littlefield, 18 Me. 400, Sec. 16, 56. vs. Newsom, 86 N. 0. 424, Sec. 227. vs. People, 82 111. 78, Sec. 177. Hutcheson vs. Eeasch, 15 Pa. Super. Ct. 96, Sec. 278. Huteherson vs. Pigg, 8 Grat. 220, Sec. 235. Hutchinson vs. State, 43 Tenu. 95, Sec. 247. vs. Woodwell, 107 Pa. St. 509, Sec. 17, 99. Huyler vs. Atwood, 26 N. J. Eq. 504, Sec. 23. Huntley vs. Huntley, 114 U. S. 399, Sec. 25. Hutton vs. Campbell, 10 Lea (Tenn.) 170, Sec. 274. vs. Loekridge, 27 W. Va. 428, See. 205. vs. Padghett, 26 Md. 228, Sec. 27. Hull vs. Brown, 35 Wis. 652, See. 32. vs. Godfrey, 31 Neb. 204, Sec. 261. Humphrey vs. Taggart, 38 111. 228, Sec. 229. Humphreys vs. St. Louis, I. M. S. Ky. Co., 37 Fed. Rep. 307, Sec. 41. Hubbard vs. Bwing, 63 Tenn. 404, Sec. 239. vs. Gurney, 64 N. Y. 457, Sec. 85, 112. vs. Haley, 96 Wis. 578, Sec. 61. Hungerford vs. O'Brien, 37 Minn. 306, Sec. 67. Hunt vs. Gray, 35 N. J. L. 227, Sec. 74. vs. Hopkins, 83 Mo. 13, See. 204. — - vs. Roberts, 45 N. Y. 691, Sec. 71. vs. State, 124 Ind. 306, Sec. 177. vs. Taylor, 108 Mass. 508, Sec. 304. Hunter vs. United States, 5 Pet. 173, Sec. 304. Huntington vs. Knox, 7 Gush. 374, Sec. 160. Huntsville Bank vs. Hill, 1 Stew. (Ala.) 201, Sec. 148. Huron vs. Armstrong, 27 Up. Can. (Q. B.) 533, Sec. 111. Hudelson vs. Armstrong, 70 Ind. 99, Sec. 119.- Hurst vs. Chambers, 75 Ky. 155, Sec. 121. vs. Jennings, 5 Barn. & Cr. 650, Sec. 153. Hurd vs. Barnhart, 53 Cal. 97, See. 225. vs. Dunsmore, 63 N. H. 171. Sec. 153. vs. Little, 12 Mass. 503, Sec. 123. Hudson vs. Barratt, 62 Kas. 137, Sec. 237. vs. Wolcott, 39 0. S. 618, Sec. 126. Humboldt Sav. & Loan Soc. vs. Wennerhold, 81 Cal. 528, Sec. 143, 148. Huff vs. Hutchinson, 14 Howard 586, Sec. 222. Huffman vs. Koppelkon, 8 Neb. 344, Sec. 164, 181. Huffmond vs. Bence, 128 Ind. 131, Sec. 276. Hubert vs. Mendheim, 64 Cal. 213, Sec. 165. Hursey vs. Marty, 61 Minn. 430, Sec. 181. Huggins vs. People, 39 111. 241, Sec. 249. Hulett vs. Soullard, 26 Vt. 295, Sec. 299, 300. TABLE OF CASES. 601 (References are to sections.) Hyatt vs. Grover & Baker S. M. Co., 41 Mich. 225, See. 147. Hyde vs. Miller, 45 Anp. Div. (N. Y.) 396, Sec. 301. vs. The State, 52 Miss. 665, Sec. 163. vs. Tracey, 2 Day (Conn.) 491, Sec. 287. Hydraulic Press Brick Co. vs. Neumeister, 15 Mo. App. 592, Sec. 146, 207. Ingersoll vs. Baker, 41 Mich. 48, Sec. 2. vs. Roe, 65 Barb. 346, Sec. 14. Irwin vs. Backus, 25 Cal. 214, Sec. 238. vs. Crook, 17 Col. 16, Sec. 198. vs. Thompson, 4 Bibb. (Ky.) 295, Sec. 22. Ida vs. Churchill, 14 O. S. 383, Sec. 81, 88, 114. vs. Slanton, 15 Vt. 685, Sec. 29. Insurance Co. vs. Doll, 35 Md. 89, Sec. 49. vs. Hanek, 83 Mo. 21, Sec. 81. vs. McGookey, 33 0. S. 555, See. 258. Irons vs. WoodfiU, 32 Ind. 40, Sec. 93. Ingels vs. Sutliflf, 36 Kas. 444, See. 115. Inglis vs. State, 61 Ind. 212, Sec. 183. Inkster vs. First Bank, 30 Mich. 143, See. 115. lliff vs. Weymouth, 40 O. S. 101, Sec. 115. Iriek vs. Black, 17 N. J. Eq. 189, Sec. 115. Irish vs. Cutter, 31 Me. 536, Sec. 129. Ives vs. Bosley, 35 Md. 262, See. 8, 129, 132. vs. Hulce, 17 111. App. 35, Sec. 202. vs. Merchants' Bank, 12 How. 159, See. 205. Inhabitants of Treseott vs. Moan, 50 Me. 347, Sec. 139. Indianola vs. Gulf W. T. & P. Ey., 56 Tex. 594, See. 154. Ingraham vs. Maine Bank, 13 Mass. 208, Sec. 173. Ingraham vs. Greenwade, 12 Ky. L. Rep. 942, Sec. 198. vs. MeCombs, 17 Mo. 558, Sec. 174. vs. State, 27 Ala. 17, See. 249. Irby vs. Livingston, 81 Ga. 281, Sec. 265. Ijames vs. Gaither, 93 N. C. 358, Sec. 272. Jamieson vs. Holm, 69 111. App. 119, See. 6, 102. James vs. Day, 37 la. 164, See. 90. vs. Hendree, 34 Ala. 488, Sec. 156. vs. Jacques, 26 Tex. 320, See. 261. vs. Williams, 5 Barn. & Ad. 1109, Sec. 26. Jackson vs. Fidelity & Casualty Co., 75 Fed. Rep. 359, Sec. 258. vs. Jackson, 7 Ala. 791, Sec. 16. vs. Lowe, 1 Bing. 9, Sec. 29. vs. Union Bank, 6 Har. & J. 149, Sec. 121. 602 TABLE OF CASES. (References are to sections.) Jacques vs. Faekney, 64 111. 87, Sec. 267. Jacquemine vs. State, 48 Miss. 280, Sec. 165. Jack vs. Morrison, 48 Pa. 113, See. 272. Jacobson vs. Metzgar, 43 Mich. 403, See. 230. Jarratt vs. Martin, 70 N. C. 459, Sec. 117. Jayne's Ex. vs. Piatt, 47 O. S. 262, See. 220, 222, 223. Jenkins vs. Clarkson, 7 0. 72, Sec. 82, 84. vs. Harrison, 66 Ala. 345, Sec. 29. vs. National Bank, 58 Me. 275, Sec. 99. vs. Reynolds, 3 Bred. & Bing. 14, Sec. 26. vs. Skillern, 5 Yerg. (Tenn.) 288, Sec. 198. Jemison vs. Governor, 47 Ala. 390, Sec. 114. Jerault vs. Trippet, 62 Ind. 122, Sec. 99. Jennings vs. Chase, 10 Allen 526, Sec. 122. vs. Thomas, 21 Miss. 617, See. 129, 132. Jenner vs. Morris, 3 DeG. F. & J. 45, See. 276. Jenness vs. City of Black Hawk, 2 Colo. 578, Sec. 191. JefFery vs. Underwood, 1 Ark. 108, Sec. 140. Jefferson vs. Asch,. 53 Minn. 446, See. 160. vs. Edrington, 53 Ark. 545, Sec. 268. Jerome vs. Ortman, 66 Mich. 668, Sec. 140. Jewett vs. Crane, 35 Barb. 208, Sec. 223. Jewett Pub. Co. vs. Butler, 159 Mass. 517, Sec. 156. Jewell vs. Van Steenburgh, 58 N. Y. 85, Sec. 190. Jessup vs. United States, 106 U. S. 147, See. 164. Jerman vs. Stewart, 12 Fed. Eep. 266, Sec. 220, 222. Jones vs. Bacon, 145 N. Y. 446, See. 34. vs. Bangs, 40 0. S. 139, Sec. 74. vs. Beach, 2 De Gex. M. & Y. 886, Sec. 119. vs. Blanton, 6 Ired. Eq. (N. C.) 115, Sec. 280, 292. vs. Bradford, 25 Ind. 305, Sec. 288. vs. Droneberger, 23 Ind. 74. Sec. 200. vs. Gibson, 82 Ky. 561, Sec. 265. vs. Goodwin, 39 Cal. 493, Sec. 8, 129. vs. Gordon, 82 Ga. 570, Sec. 245. vs. Irvine, 23 Miss. 361, Sec. 237. vs. Jones, 38 Mo. 429, Sec. 223. vs. Jones, 53 Ky. 373, See. 239. vs. Newman, 36 Hun 634, See. 164. vs. Orchard, 16 C. B. 614, Sec. 296. vs. Quinnipiack Bank, 29 Conn. 25, Sec. 272. vs. Eosedale St. Ry., 75 Tex. 382, Sec. 214. vs. Sarchett, 61 Iowa 520, Sec. 85. vs. Shorter, 1 Kelley (Ga.) 294, See. 34. vs. Trimble, 3 Eawle (Pa.) 381, Sec. 297. .^ vs. Ward, 71 Wis. 152, Sec. 102. TABLE OF CASES. 603 (References are to sections.) Joslyn vs. CoUinson, 26 111. 62, Sec. 9. vs. Eastman, 46 Vt. 268, Sec. 90. Josselyn vs. Edwards, 57 Ind. 212, Sec. 265. Johnston Eecr. vs. May et al., 76 Ind. 293, Sec. 20. Johnston vs. Chapman, 3 Penu. & W. (Pa.) 18, Sec. 61. Johnston vs. Cole, 103 la. 109, See. 109. vs. Kimball, 39 Mich. 187, Sec. 167. vs. Maples, 49 111. 101, Sec. 234. vs. May, 76 Ind. 293, Sec. 77. vs. Patterson, 114 Pa. 398, Sec. 15, 108. Johnson vs. Brown, 51 Ga. 498, Sec. 52. vs. Buck, 35 N. J. L. 338, Sec. 29. vs. Eaton Milling Co., 18 Col. 331, Sec. 150. vs. Elwood, 82 N. Y. 362, Sec. 210. vs. Flint, 34 Ala. 673, Sec. 203. vs. Goldsborough, 1 Harr. & J. (Md.) 499, Sec. 198. vs. Hacker, 8 Heisk. (Tenn.) 388, Sec. 87. vs. Haight, 13 Johns. 470, See. 121. vs. Harris, 69 Ind. 305, Sec. 118. vs. Harvey, 84 N. Y. 363, Sec. 68, 290. vs. Hicks' Guardian, 97 Ky. 116, Sec. 241. vs. Hogan, 37 Tex. 77, See. 240. vs. Mann, 77 Va. 265, Sec. 168. vs. Martinus, 9 N. J. Law 144, bee. 126. vs. McGruder, 15 Mo. 365, Sec. 22. vs. Mitchell, 50 Tex. 212, Sec. 124, 135. vs. Noonan, 16 Wis. 687, Sec. 198. vs. Ramsey, 43 N. J. L. 279, Sec. 136. vs. Reed, 47 Neb. 322, Sec. 202. vs. Vaughn, 65 111. 425, Sec. 290, 291. va. Ward, 21 Ky. L. Rep. 783, See. 205. vs. Weatherwax, 9 Kan. 75, Sec. 109. vs. Young et al., 20 W. Va. 614, Sec. 23, 90, 100. va. Zink, 51 N. Y. 333, Sec. 23, 268. Jordan vs. Adams, 7 Ark. 348, Sec. 299. vs. Agawam Woolen Co., 106 Mass. 571, Sec. 202. vs. Dobbins, 122 Mass. 168, Sec. 71, 119. vs. Kavanaugh, 63 la. 152, Sec. 143, 149. Job vs. Harlan, 13 0. S. 485, Sec. 208. Justice vs. Ennis, 5 Ga. 569, Sec. 21. vs. Lany, 42 N. Y. 495, Sec. 28. vs. Tallman, 86 Pa. 147, See. 40. Judge of Probate vs. Couch, 59 N. H. 39, Sec. 237. vs. Toothaker, 83 Me. 195, See. 241. Judah vs. Zimmerman, 22 Ind. 388, Sec. 150. Junction City vs. Keefe, 40 Kas. 275, See. 245. 604 TABLE OF CASES. (References are to sections.) K Kay vs. Groves, 6 Bing. 276, Sec. 18, 60. Kaler vs. Hise, 79 Ind. 301, Sec. 83. Kautzman vs. Weirich, 26 O. S. 332, Sec. 117, 135. Kane vs. Casgrain, 69 Wis. 430, Sec. 210. vs. Cortesy, 100 N. Y. 132, Sec. 86. vs. The State ex rel. Woods, 78 Ind. 103, Sec. 271. Kansas City vs. Murphy, 49 Neb. 674, Sec. 108. Kansas City Sewer Pipe Co. vs. Thompson, 120 Mo. 218, Sec. 149. Kamm vs. Holland, 2 Ore. 59, Sec. 129. Kayser vs. Hall, 85 111. 511, Sec. 133. Karr vs. Peter, 60 111. App. 209, Sec. 153. Kagay vs. Trustees, 68 111. 75, Sec. 173. Kaufman vs. Cooper, 46 Neb. 644, Sec. 149. Kasson vs. Brocker, 47 Wis. 79, Sec. 198. Kattleman vs. Guthrie's Estate, 142 111. 357, Sec. 243. Katz vs. Moessinger, 110 111. 372, Sec. 296. Kelly vs. Herrick, 131 Mass. 373, Sec. 272. vs. West, 80 N. Y. 139, Sec. 238. Kelly et al. vs. The State, etc., 25 O. S. 567, Sec. 19, 21, 173, Kelley vs. Whitney, 45 Wis. 110, Sec. 272. Kellar vs. Boatman, 49 Ind. 104, Sec. 299. vs. Williams, 10 Bush. (Ky.) 217, Sec. 271. Keller vs. Ashford, 133 U. S. 610, Sec. 90. Kellog vs. Howes, 93 Cal. 586, Sec. 205. vs. Miller, 22 Ore. 406, Sec. 269. vs. Scott, 58 N. J. Eq. 344, Sec. 76. Kellogg vs. Kimball, 142 Mass. 124, Sec. 223. vs. State, 43 Miss. 57, Sec. 246, 249. Kellock's Case, 3 Ch. App. 769, Sec. 269. Kerr vs. Cameron, 19 U. P. (Q. B.) 366, Sec. 94. vs. Reece, 27 Kan. 469, Sec. 220. vs. Shaw, 13 Johns. 236, Sec. 27. Keate vs. Temple, 1 B. & P. 158, Sec. 36. Keyes vs. Allen, 65 Vt. 667, Sec. 43. Keplay vs. Carter, 49 Kan. 72, Sec. 50. Kennedy, etc., Co. vs. S. S. Const. Co., 123 Cal. 584, Sec. 57. Kennedy, In re, 129 Cal. 384, Sec. 201. Kennedy vs. Brown, 21 Kan. 171, Sec. 230. vs. Goss, 38 N. Y. 320, Sec. 88. vs. Pickens, 3 Ired. Eq. N. C. 147, Sec. 265. Kernochan vs. Murray, 111 N. Y. 306, Sec. 71, 119. Keith vs. Goodwin, 31 Vt. 268, Sec. 75. Keithler vs. Foster, 22 O. S. 27, Sec. 195. Keithsburs; & E. R. R. vs. Henry, 90 111. 255, Sec. 207. Kenworthy vs. Sawyer, 125 Mass. 28, Sec. 92, 121. Kearsley vs. Cole, 16 M. & W. 128, Sec. 92, 114. TABLE OF CASES. 605 (References are to sections.) Kermmerer vs. Wilson, 31 Pa. 110, Sec. 99. Kealing vs. Vansickle, 74 Ind. 529, Sec. 112. Keirn vs. Andrews, 59 Miss. 39, See. 115. Keen vs. Whittington, 40 Md. 489, See. 152, 198. Kearney vs. Andrews, 10 N. J. Eq. 70, See. 168. vs. Saseer, 37 Md. 264, See. 238. Kemp vs. Tinden, 12 M. & W. 421, Sec. 288, 300. Kempner vs. Galveston Co., 73 Tex. 216, Sec. 172. Kealhofer vs. Emmert, 79 Md. 248, Sec. 235. Kester vs. Hill, 42 W. Va. 611, Sec. 241. Ketler vs. Thompson, 13 Bush. (Ky.) 287, Sec. 280. Keel vs. Larkin, 72 Ala. 493, Sec. 265. Kenyon vs. Farris, 47 Conn. 510, Sec. 276. Keach vs. Hamilton, 84 111. App. 413, See. 298. Kendrick vs. Forney, 22 Gratt. 748, See. 299. Keiser vs. Beam, 117 Ind. 31, Sec. 291. King vs. Baldwin, 17 Johns. 384, Sec. 116. vs. Downey, 24 Ind. App. 262, See. 149. vs. Nichols, 16 O. S. 80, Sec. 170, 173. vs. Ritchie, 18 Wis. 554, See. 129. vs. State, 81 Ala. 92, Sec. 109. vs. State, 18 Neb. 375, Sec. 249. King County vs. Ferry, 5 Wash. 536, Sec. 74, 87, 171. Kingsbury vs. Westfall, 61 N. Y. 360, See. 2. — ' Kingsland vs. Koeppe, 137 111. 344, See. 132. Killian vs. Ashley et al., 24 Ark. 511, See. 8, 57, 129, 137. vs. Clark, 111 U. S. 784, Sec. 198. Kirby vS. W. S. & L. P. Ky. Co., 109 111. 412, Sec. 49. Kimball vs. Baker, 62 Wis. 526, Sec. 77, 143. vs. Newell, 7 Hill 116, See. 104. ■ vs. Roye, 9 Rich. Law (S. C) 295, See. 58. Kimball Printing Co. vs. Southern Land Improvement Co., 57 Minu. 37, See. 203. Kineaid vs. Yates, 63 Mo. 45, Sec. 97. Kirkpatrick vs. Howk, 80 111. 122, Sec. 98. Kilpatriek vs. Haley, 6 Col. App. 407, Sec. 210. Kirkendall vs. Hartsock, 58 Mo. App. 234, Sec. 231. Kindt's Appeal, 102 Pa. 441, Sec. 99. Kitson vs. Farwell, 132 111. 327, Sec. 110. Kittridge vs. Stegmier, 11 Wash. 3, Sec. 115. Kinney vs. Schmitt, 12 Hun 521, Sec. 142. Kiersted vs. Orange & Alexandria R. R. Co., 69 N. Y. 343, See. 160. Kilgore vs. Magee, 85 Pa. ,401, Sec. 163. Kieman vs. Cameron, 66 Miss. 442, Sec. 204. Killfoil vs. Moore, 45 S. W. (Tex. Civ. App.) 1024, See. 205. Kimmel vs. Lowe, 28 Minn. 265, See. 265. Kinard vs. Balrd, 20 S. C. 377, Sec. 266. 606 TABLE OF CASES. (References are to sections.) Kiel vs. Choate, 92 Wis. 517. See. 295. Klein vs. Funk, 82 Minn. 3, Sec. 297. vs. Kern, 94 Tenn. 34, Sec. 61. Kline vs. Eaymond, 70 Ind. 271, Sec. 66, 67. Kleinhaus vs. Generous, 25 O. S. 667, Sec. 89. Klingensmith vs. Klingensmith, 31 Pa. 460, Sec. 114. Klippel vs. Oppenstein, 8 Colo. App. 187, Sec. 222. Klepper vs. Borchsenius, 13 111. App. 318, Sec. 279. Klopp vs. Lebanon Bank, 46 Pa. 88, See. 261. Klosterman vs. Olcott, 25 Neb. 382, See. 66. Knight vs. Charter, 22 W. Va. 422, Sec. 99. vs. Donsmore & Chambers, 12 Iowa 35, Sec. 8. vs. Waters, 18 Iowa 345, Sric. 199. Knightoh vs. Curry, 62 Ala. 404, Sec. ii99. Knickerbocker vs. Wilcox, 83 Mich. 200, Sec. 11. Knowlton vs. Hersey, 76 Me. 345, See. 59. Knotts vs. Butler, 10 Rich. Bq. (S. C.) 143, Sec. 71. Knox Co. Bank vs. Lloyd's Admrs., 18 O. S. 353, Sec. 78. Knox Co. vs. Johnson, 124 Ind. 145, Sec. 166. Knox vs. Kearns, 73 Iowa 286, Sec. 241. Knoblanch vs. Fogelsong, 38 Minn. 352, Sec. 127. Knapp vs. Swaney, 56 Mich. 345, Sec. 149. vs. Van Etten, 55 Hun 428, Sec. 205. Knepper vs. Glenn, 73 Iowa 730, See. 243. Kohn Bros. vs. Washer, 69 Tex. 67, See. 12. Koenigsberg vs. Lennig, 161 Pa. 171, Sec. 57, 92. Kountz vs. Kennedy, 63 Pa. 187, See. 74. vs. Omaha Hotel Co., 107 U. S. 378, Sec. 205. Kortlander vs. Elston, 2 C. C. A. 657, Sec. 269. Konitzky vs. Meyer, 49 N. Y. 571, Sec. 296, 303. Koelsch vs. Mixer, Admr., 52 O. S. 207, Sec. 293. Kramph's Executrix vs. Hatz's Executors, 52 Pa. St. 525, Sec. 6, 292. Kranichfelt vs. Slattery, 33 N. Y. S. 27, See. 141. Krone vs. Cooper, 43 Ark. 547, Sec. 202. Krall vs. Libbey, 53 Wis. 292, Sec. 207. Krug vs. Bishop, 40 O. S. 221, Sec. 210. Kreider vs. Isenbice, 123 Ind. 10, Sec. 278. Krafts vs. Creighton, 3 Rich. L. (S. C.) 273, Sec. 296. Kuns vs. Young, 34 Pa. 60, See. 104. Kulp vs. Brant, 162 Pa. 222, See. 108. Kuntz vs. Kempel, 48 Mo. 71, Sec. 126. Kimkel vs. Fitzhugh, 22 Md. 567, Sec. 272. Kyle vs. Bostick, 10 Ala. 589, Sec. 83. Law vs. East India Co., 4 Ves. Jr. 824, See. 2. Law's Estate, 144 Pa. 499, See. 183. TABLE OF CASES. U07 (References are to sections.) Lawson vs. Wright, 1 Cox. 275, Sec. 288. Lawrence vs. Doolan, 68 Oal. 309, Sec. 162. vs. McCalmont et al., 2 How. (U. S.) 426, Sec. 16, 18, 48, 50. Lawrence vs. Oakey, 14 La. 387, Sec. 8, 129. vs. Stonington Bank, 6 Conn. 521, Sec. 126. Laurenson vs. Butler, 1 Sch. & Lef. 13, Sec. 28. La Du-King Mfg. Co. vs. La Du, 36 Minn. 473, Sec. 25. La Farge vs. Herter, 9 N. Y. 241, See. 97. La Eose et al. vs. The Logansport Nat'l Bank et al., 102 Ind. 332, Sec. 6, 71, 107, 144, 148. Latham vs. Houston Flour Mills, 68 Tex. 127, Sec. 8, 129. Laing vs. Lee, 20 N. J. Law 337, Sec. 27. Lange vs. Benedict, 73 N. Y. 12, Sec. 185. Langdon vs. Hughes, 107 Mass. 272, Sec. 38. vs. Richardson, 58 la. 610, Sec. 36. Langford vs. Freeman, 60 Ind. 46, Sec. 45. Langworthy vs. McKelvey, 25 Iowa 48, Sec. 214. Lance vs. Pearce, 101 Ind. 595, Sec. 36. Larson vs. Jensen, 53 Mich. 427, Sec. 36. vs. Wyman, 14 Wend. (N. Y.) 246, Sec. 36. Lakeman vs. Mountstephen, 7 Eng. Ir. App. 17, Sec. 38. Landis vs. Koyer, 59 Pa. 95, Sec. 42. Landa vs. Heermann, 85 Tex. 1, Sec. 198. Lane vs. Doty, 4 Barb. 530, Sec. 119. vs. Duehac, 73 Wis. 655, Sec. 51. vs. Howell, 1 B. J. Lea (Tenn.) 275, Sec. 87. vs. State, 24 Ind. 421, Sec. 236. Lane Implement Co. vs. Lowder, 65 Pa. Rep. (Okl.) 926, Sec. 220. Lammon vs. Feusier, 111 U. S. 17, Sec. 181. Lauman vs. Nichols, 15 la. 161, Sec. 90. Lafayette Co. vs. Hixon, 69 Mo. 581, Sec. 98. Lafayette Savings Bank vs. St. Louis Stoneware Co., 2 Mo. App. 299, Sec. 166. Lackey vs. Steere, 121 111. 598, Sec. 100. Lake vs. Brutton, 8 De G. M. & G. 440, See. 261. vs. Thomas, 84 Md. 608, Sec. 106. Lancashire Co. vs. Callahan, 68 Minn. 277, Sec. 107. Ladd vs. Board, 80 111. 233, Sec. 108. vs. Chamber of Commerce, 37 Oreg. 49, Sec. 292. Lasher vs. Williamson, 55 N. Y. 619, Sec. 117. Lashus vs. Matthews, 75 Me. 446, Sec. 189. Lamourieux vs. Hewit, 5 Wend. 307, Sec. 135. Lacoste vs. Bexar Co., 28 Tex. 420, Sec. 191. vs. Splivalo, 64 Cal. 35, Sec. 236. Large vs. Steer, 121 Pa. 30, Sec. 210. Lamb vs. Shaw, 43 Minn. 507, Sec. 214. Lambert vs. Haskell, 80 Cal. 611, Sec. 211. 608 TABLE, OF CASES. (References are to sections.) Lambden vs. Conoway, 5 Harr. (Del.) 1, Sec. 227. Lambrecht vs. State, 57 Md. 240, See. 235. Lallande vs. Trezevant, 39 La. Ann. 830, Sec. 213. Lansley vs. Nietert, 78 Iowa 758, See. 214. Laylin vs. Knox, 41 Mich. 40, See. 268. Lathrop vs. Atwood, 21 Conn. 116, Sec. 298. Layer vs. Nelson, 1 Vern. 456, See. 279. Lansdale's Admrs. vs. Cox, 7 T. B. Mon. 401, Sec. 279. Lee vs. Burrell, 51 Mieh. 132, Sec. 298. vs. Dick et al., 10 Peters, 493J Sec. 18, 49, 65. vs. Hastings, 13 Neb. 508, Sec. 17. « ' vs. Jones, 17 C. B. N. S. 482, Sec. 15, 106. vs. Lee, 67 Ala. 406, See. 241. vs. Peckham, 17 Wis. 394, Sec. 97. vs. State, 25 Tex. App. 331, Sec. 248. vs. Wisner, 38 Mieh. 82, Sec. 16, 57. ■ vs. Yandell, 69 Tex. 34, See. 104. Lee Co. vs. Welsing, 70 la. 198, Sec. 109. Lea vs. Collins, 36 Tenn. 393, Sec. 156. Ley vs. Wise, 15 La. Ann. 38, Sec. 19. Leonard vs. Speidel, 104 Mass. 359, Sec. 162. vs. Vredenburgh, 8 Johns. 29, Sec. 27. vs. Wildes, 36 Me. 265, See. 8, 9, 129. Leckie vs. Scott, 5 La. 631, Sec. 19. Levi vs. Mendell, 62 Ky. 77, Sec. 132. Levy vs. Merrill, 4 Greenl. 180, Sec. 27. Lerch vs. Gallup, 67 Cal. 595, Sec. 32. Ledbetter vs. McGhees, 84 Ga. 227, Sec. 40. Lennox vs. Brower, 160 Pa. 191, See. 43. vs. Murphy, 171 Mass. 370, Sec. 57. Leroux vs. Brown, 12 C. B. 801, See. 47. Lemmon vs. Strong, 59 Conn. 448, Sec. 51. vs. Whitman, 75 Ind. 318, Sec. 83. Lehman vs. McQuown, 31 Fed. P.ep. 138, Sec. 213. vs. Robertson, 84 Ala. 489, Sec. 183. Lenhart vs. Ramey, 3 0. C. C. 135, Sec. 135. Lewis vs. Armstrong, 80 Ga. 402, Sec. 114. vs. Brehme, 33 Md. 412, Sec. 126. vs. Brewster, 2 McL. 21, Sec. 67. vs. Jones, 4 Barn. & Cres. 506, Sec. 136. vs. Lee Co. 73 Ala. 148, Sec. 191. vs. Maulden, 93 Ga. 758, Sec. 202. vs. Palmer, 28 N. Y. 271, Seq. 261, 267. vs. U. S., 92 U. S. 618, Sec. 269. Lewiston vs. Gagne, 89 Me. 395, Sec. 109. •Leeds vs. Dunn, 10 N. Y. 469, Sec. 76. Leech vs. Hill, 4 Watts (Pa.) 448, Sec. 137. TABLE OF CASES. 609 (References are to sections.) Leaeh vs. Flemming, 85 N. C. 447, Sec. 139. Leake vs. Ball, 116 Ind. 214, Sec. 160. Leigh vs. Taylor, 7 Barn. & Cr. 491, Sec. 180. Leighton vs. Brown, 98 Mass. 516, Sec. 231. Leslie vs. Conway, 59 Cal. 442, Sec. 93. Lester vs. Houston, 101 N. C. 605, See. 118. Leavitt vs. Putnam, 3 N. Y. 494, Sec. 124. Leary vs. Blanchard, 48 Me. 269, Sec. 125. Lewark vs. Carter, 117 Ind. 206, Sec. 187. Lescouzeve vs. Ducatel, 18 La. Ann. 470, Sec. 188. Leaehman vs. Dougherty, 81 111. 324, Sec. 189. Leggett vs. McClelland, 39 O. S. 624, See. 270. Lceper vs. Paschal, 70 Mo. App. 117, Sec. 281. Lengle vs. Smith, 48 Mo. 276, Sec. 198. Liberman vs. First Nat. Bank, 45 Atl. Rep. (Del.) 901, Sec. 15, 106. Linn County, etc., vs. Farris et al., 52 Mo. 75, See. 15, 145. Lininger vs. Wheat, 49 Neb. 567, Sec. 57. Lindsay vs. Parkinson, 5 Irish Law Rep. 124, Sec. 77. Lindsey vs. Attorney General, 33 Miss. 508, See. 163. Lionberger vs. Krieger, 88 Mo. 160, Sec. 80, 150, 152. Lilly vs. Hays, 5 Ad. & Ell. 548, See. 160. vs. Roberts, 58 6a. 363, Sec. 98. Livingston vs. Anderson, 80 Ga. 175, Sec. 265. vs. Bxum., 19 S. C. 223, See. 214. vs. Marshall, 82 Ga. 281, Sec. 117. Lime Rock Bank vs. Mallett, 42 Me. 349, Sec. 83, 136. Lisle vs. Rogers, 18 B. Mon. (Ky.) 528, See. 136. Liles vs. Rogers, 113 N. C. 197, Sec. 261. Lillard vs. Lillard, 44 Ky. 340, Sec. 161. Linder vs. Lake, 6 la. 164, Sec. 153. Lincoln vs. Chapin, 132 Mass. 470, Sec. 189. Little vs. Bliss, 55 Kan. 94, Sec. 229. Littleton vs. Frank, 70 Tenn. 300, See. 225. vs. Richardson, 34 N. H. 179, See. 303. vs. State, 46 Ark. 413, Sec. 248. Lingle vs. Cook, 32 Grat. 262, Sec. 236. Lipscomb vs. Grace, 36 Ark. 231, See. 304. vs. Postell, 38 Miss. 476, Sec. 238. Littlefield vs. State, 1 Tex. App. 722, Sec. 248. -Lidderdale vs. Robinson, 2 Brock. 159, See. 261, 266, 270. Liddell vs. Wiswell, 59 Vt. 365, Sec. 289, 290. Liebke vs. Thomas, 116 U. S. 605, Sec. 304. Lloyds vs. Harper, 16 Ch. Div. 290, Sec. 71, 119. Lloyd vs. Sigourney, 5 Bingham S25, Sec. 125. Lord vs. Staples, 23 N. H. 448, Sec. 299. Lord Arlington vs. Merricke, 2 Saund. 412, See. 2. London Assurance Co. vs. Bold, 6 Ad. & Ell. 514, Sec. 2, 53. 610 TABLE OP CASES. (References are to sections.) London Bank & Parrott, 58 Pac. Rep. (Cal.) 164, Sec. 50. London, etc., Bank vs. Smith, 101 Cal. 415, Sec. 61. London & Brazilian Bank vs. Walker, 74 Hun 395, Sec. 214. Logan vs. Anderson, 18 B. Mon. 114, Sec. 269. vs. Ogden, 101 Tenn. 392, Sec. 8. vs. Plummer, 70 N. C. 388, Sec. 156. Low Bros. & Co. vs. Anderson, 41 Iowa 476, Sec. 11. Lowe vs. Bcckwith, 14 B. Mon. (Ky.) 150, See. 50. vs. City of Guthrie, 4 Okl. 287, See. 180. vs. Peers, 4 Bur. 2225, Sec. 156. vs. Riley, 57 Neb. 252, Sec. 204. Loew vs. Stocker, 68 Pa. 226, Sec. 108. Lowry vs. Adams, 22 Vt. 160, Sec. 51. vs. McKinney, 68 Pa. St. 294, Sec. 23, 90, 268. vs. Polk County, 51 Iowa 50, See. 183. vs. State, 64 Ind. 421, Sec. 191. vs. Tew, 25 Hun 257, Sec. 206. Lower vs. Buchanan Bank, 78 Mo. 67, Sec. 114. Lowman vs. Sheets, 124 Ind. 416, See. 25. vs. Yates, 37 N. Y. 601, Sec. 82. Loomia vs. Brown, 16 Barb. 325, Sec. 212. vs. Newhall, 15 Pick. 159, Sec. 36. Lonsdale vs. Lafayette Bank, 18 0. 126, Sec. 51. Louisville Mfg. Co. vs. Welch, 10 How. 461, Sec. 65. Louisville Water Co. vs. Youngstown Bridge Co., 16 Ky. Law Rep. 350, Sec. 153. Louisiana Bank vs. Ledoux, 3 La. Ann. 674, Sec. 115. Louis vs. Brown, 7 Ore. 326, Sec. 153. Lovinger vs. First Nat'l Bank, 81 Ind. 354, Sec. 97. Love vs. Jersey City, 40 N. J. L. 456, Sec. 163. vs. Rockwell, 1 Wis. 331, Sec. 207. Lookwood vs. Penn, 22 La. Ann. 29, Sec. 102. Lobaugh vs. Thompson, 74 Mo. 600, Sec. 104. Locke vs. McVean, 33 Mich. 473, Sec. 143. Longfellow vs. McGregor, 56 Minn. 312, Sec. 146, 153. Long vs. Davidson, 101 N. C. 170, Sec. 146. vs. Miller, 93 N. C. 227, Sec. 272. vs. Seay, 72 Mo. 648, Sec. 171. vs. Sullivan, 21 Colo. 109, Sec. 203. 'Longan vs.' Taylor, 130 111. 412, Sec. 191. Looney vs. Hughes, 26 N. Y. 514, Sec. 179. Loughrldge vs. Rowland, 52 Miss. 546, Sec. 265, 296, 297. Lobenstein vs. Hymson, 90 Tenn. 606, Sec. 220. Loehr vs. Colburn, 92 Ind. 24, Sec. 272. Loeb vs. Fleming, 15 111. App. 503, Sec. 277. Loosemore vs. Radford, 9 M. & W. 657, Sec. 298. Ludwick vs. Watson, 3 Oreg. 256, Sec. 16. TABLE OF CASES. 611 (References are to sections.) Ludlow VS. Simond, 2 Cal. 1, Sec. 17. Lucas vs. Chamberlain, 8 B. Mon. (Ky.) 276, Sec. 34. ■ vs. Owens, H3 Ind. 521, Sec. 108. vs. The Governor, 6 Ala. 826, Sec. 192. vs. White Line Transfer Co., 70 Iowa 541, Sec. 166. Luark vs. Malone, 34 Ind. 444, Sec. 41. Lumsden vs. Leonard, 55 Ga. 374, See. 100. Lumber Co. vs. Buchtel, 101 U. S. 633, See. 108. Luce vs. Foster, 42 Neb. 818, Sec. 144, 146. Lutt vs. Sterrett, 26 Kan. 561, See. 202. Lunsford vs. Baskins, 6 Ala. 512, Sec. 205. Lumpkin vs. Mills, 4 Ga. 349, Sec. 264, 266. Lux vs. McLeod 19 Col. 465, Sec. 208. Lyon vs. Crissman, 22 N. C. 268, Sec. 46. vs. Hersey, 22 Hun 253, Sec. 214. vs. Osgood, 58 Vt. 707, Sec. 235. Lyman vs. City of Lincoln, 38 Nev. 794, Sec. 149. vs. Sherwood, 20 Vt. 42, Sec. 78. Lynch vs. Hancock, 14 S. C. 66, Sec. 262. vs. Reynolds, 16 Johns. 41, Sec. 136. M Mark vs. Hyatt, 135 N. Y. 306, Sec. 209. vs. LeinkauflF, 93 Ala. 453, See. 225. Marks vs. First National Bank, 79 Ala. 550, Sec. 74, 108. vs. Herman, 24 La. Ann. 335, Sec. 135. Markey vs. Corey, 108 Mich. 184, Sec. 135. Markland Mining & Mfg. Co. vs. Kimmel et al., 87 Ind. 566, Sec. 6, 50, 145. Maingay vs. Lewis, 3 Ir. R. C. L. 495, Sec. 23. Marcey vs. Crawford, 16 Conn. 549, Sec. 32. Macey vs. Childress, 2 Tenn. Ch. 438, Sec. 46. Manufacturers' Bank vs. Cole, 39 Me. 188, Sec. 78. Manufacturers' Nat. Bank vs. Dickcrson, 41 N. J. L. 448, Sec. 150. Manufacturers' & Traders' Bank vs. Dare, 67 Hun 44, Sec. 210. Manning vs. Alger, 85 la. 617, Sec. 85. vs. Manning, 26 Kan. 98, Sec. 231. vs. Mills, 12 Up. Can. (Q. B.) 515, Sec. 51. Marshall vs. Cabanne, 40 Mo. App. 38, Sec. 136. vs. Hudson, Admr., 9 Yerg. (Tenn.) 57, Sec. 301. vs. Marshall, 42 Ala. 149, Sec. 85. Marsh vs. Cohen, 68 N. C. 283, Sec. 198. vs. Day, 18 Pick. 321, Sec. 63. vs. Griffin, 42 Iowa 403, Sec. 20. vs. Harrington, 18 Vt. 150, Sec. 288. vs. Pike, 10 Paige Ch. 595, See. 268. March vs. Allabough, 103 Pa. 335, Sec. 153. 612 TABLE OF CASES. (References are to sections.) Mathews vs. Aikin, 1 N. Y. 595, Sec. 261, 279. vs. Densmore, 109 U. S. 216/ Sec. 189. vs. Hall, 21 W. Va. 510, Sec. 300. vs. Phelps, 61 Mich. 327, Sec. 50, 59. vs. Saurin, L. E., 31 Ir. 181, Sec. 298. vs. Switzler^, 46 Mo. 301, Sec. 96. Mayhew vs. Crickett, 2 Swanst. 185, Sec. 98, 261. May vs. Ball, 21 Ky. L. Eep. 1673, Sec. 302. vs. May, 19 Fla. 373, Sec. 19. vs. Williams, 61 Miss. 125, Sec. 34. Mays vs. Cockrum. 57 Tex. 352, Sec. 119. vs. Joseph, 34 0. S. 22, Sec. 32, 157. Mayo vs. Hutchinson, 57 Me. 546, Sec. 11. vs. Williams, 17 0. 244, See. 204. Mayberry vs. Sainton, 2 Harr. (Del.) 24, Sec. 67. Mayer vs. Duke, 72 Tex. 445, Sec. 217. vs. Isaac, 6 Mees. & Wels. 605, Sec. 50. Martin vs. Black, 20 Ala. 309, See. 57. vs. Boyd, 11 N. H. 385, Sec. 131. vs. Campbell, 120 Mass. 126, Sec. 108. vs. Cole, 104 U. S. 37, Sec. 127. vs. Croker, 62 Iowa 328, Sec. 208. vs. EUebe's Admr., 70 Ala. 326, Sec. 290, 296, 297, 299. vs. Frantz, 127 Pa. 389, Sec. 293. vs. Mechanics' Bank, 6 Har. & John. 235, Sec. 101. vs. Skehan, 2 Col. 614, Sec. 116. vs. Tally, 72 Ala. 23, Sec. 238. vs. Thomas, 24 How. 316, Sec. 79, 232. vs. Wright, 6 Ad. & Ell. N. S. 917, Sec. 50. Martyn vs. Lima, 75 Iowa, 235, Sec. 67. Martindale vs. Brock, 41 Md. 571, Sec. 299. Mason vs. Alexander, 44 0. S. 328, See. 197. vs. Bogg, 2 Mylne & C. 443, 448, Sec. 269. vs. Burton, 54 111. 349, Sec. 127. vs. Hall, 30 Ala. 599, Sec. 43. vs. Nichols, 22 Wis. 360, Sec. 104. vs. Pierron, 69 Wis. 585, See. 286. vs. Pritehard, 12 East. 227, Sec. 18, 59. vs. Eichards, 12 Iowa 73, Sec. 230. Macon & B. E. E. Co. vs. Gibson, 85 Ga. 1, Sec. 209. Marehman vs. Eobertson, 77 Ga. 40, Sec. 105. Marchand vs. Prellsen, 105 U. S. 423, Sec. 205. vs. York, 10 Ky. L. Eep. 777, See. 225. Mathis vs. Morgan, 72 Ga. 517, Sec. 109. Massey vs. Brown, 4 S. C. 85, Sec. 114. vs. Turner, 2 Houst. (.Del.) 79, Sec. 8. Massie vs. Mann, 17 Iowa 131, Sec. 262. TABLE or CASES. 613 (References are to sections.) Masser vs. Strickland, 17 Serg. & R. 354, Sec. 194. Manchester Co. vs. Sweeting, 10 Wend. 163, Sec. 116. Mahurin vs. Pearson & Bellows, 8 N. H. 539, Sec. 117. Marcal vs. Melliet, 18 La. Ann. 223, See. 122. Maxwell vs. Vansant, 46 111. 58, See. 137. Manhattan Gas Light Co. vs. Ely, 39 Barb. 174, Sec. 54. Manhattan Life Ins. Co. vs. Alexander, 89 Hun 449, Sec. 140. Mallan vs. May, 13 M. & W. 511, Sec. 49. Mailers vs. Crane Co., 92 111. App. 514, Sec. 141. Mallory vs. Gillett, 21 N. Y. 412, See. 39, 41. Malone vs. Keener, 44 Pa. 107, Sec. 42. vs. -McClain, 3 Ind. 532, Sec. 202. vs. Philadelphia, 147 Pa. 416, Sec. 153. Mackenzie vs. Edinburg School Trustees, 72 Ind. 189, See. 143. MacDonald vs. Longbotton, 1 El. & El. 977, Sec. 49. Mack vs. Jackson, 9 Col. 536, Sec. 213. Macklin vs. Northern Bank of Ky., 83 Ky. 314, Sec. 272. Marney vs. State, 13 Mo. 7, Sec. 170. Many vs. Sizer, 6 Gray 141, Sec. 205. Mann vs. Yazoo City, 31 Miss. 574, Sec. 191. Manlove vs. Vick, 55 Miss. 567, Sec. 209. Mandeville vs. Reynolds, 68 N. Y. 534, Sec. 190. Mansfield vs. Edwards, 136 Mass. 15, See. 282. Mailing Union vs. Graham, 5 L. R. C. P. 201, Sec. 170. Magner vs. Knowles, 67 111. 325, Sec. 191. Magee vs. Leggett, 48 Miss. 139, Sec. 262. vs. Manhattan Life Ins. Co., 92 U. S. 98, Sec. 2, 106. Magruder vs. Marshall, 1 Blackford 333, Sec. 228. Matson vs. Wharam, 2 T. R. 80, Sec. 36. Matteson vs. Ellsworth, 33 Wis. 488, See. 74. Marston vs. Swett, 66 N. Y. 206, Sec. 45 46. Mauran vs. Bullus, 16 Pet. 528, See. 49. Maure vs. Harrison, 1 Eq. Cases, Abridgment 93, Placitum 5, Sec. 273. Mahar vs. Lanfrom, 86 111. 513, Sec. 83. Marquis of Downshire vs. Lady Sandys, 6 Ves. Jr. 107, See. 196. Madison Co. vs. Johnston, 51 Iowa 152, See. 241. Mattoon vs. Cowing, 79 Mass. 287, Sec. 241. Mather vs. People, 12 111. 9, Sec. 249. Marlow vs. Pitfield, 1 P. Wms. 558, Sec. 276. Maxey vs. Carter, 10 Yerg. (Tenn.) 521, See. 278. Macfie vs. Kilanea, 6 Hawaiian 440, Sec. 298. Mattingly vs. Sutton, 19 W. Va. 19, Sec. 298. Mace vs. Wells, 7 How. 272, See. 304. Machado vs. Fernandez, 74 Cal. 362, Sec. 292. Mcintosh-Huntington Co. vs. Reed, 89 Fed. Rep. 464, Sec. 6. McQuewans vs. Hamlin, 35 Pa. St. 517, Sec. 11. 614 TABLE OF CASES. (References are to sections.) MeCoimick vs. Bay City, 23 Mich. 457, See. 15, 20. vs. Irwin, 35 Pa. 117, Sec. 261, 271. McCornick vs. Thatcher, 8 Utah 294, Sec. 163. McCormick Co. vs. McKee, 51 Mich. 426, Sec. 109. McNaught vs. McClaughry, 42 N. Y. 24, Sec. 16. McLain vs. Simington, 37 O. S. 484, Sec. 20. McLean vs. Towle, 3 Sand. Ch. 118, Sec. 267. McCracken vs. German Fire Ins. Co., 43 Md. 471, Sec. 272. vs. Todd, 1 Kan. 148, See. 21. McWhorter vs. MeMahan, 10 Paige 386, Sec. 22. McConnell vs. Brillhart, 17 111. 354, Sec. 30. McCready vs. Van Antwerp, 24 Hun 322, Sec. 268. McEeary vs. Rogers, 35 Ark. 298, Sec. 197. vs. Vfion Hook, 35 Tex. 631, Sec. 39. McKenzie vs. Jackson, 4 Ala. 230, Sec. 40. McCasland vs. Doorley, 47 111. App. 513, Sec. 43. McDougald vs. Argonaut Land, etc., Co., 117 Cal. 87, Sec. 57. McMurray vs. Noyes, 72 N. Y. 524, Sec. 62. McMullcn vs. Hinkle, 39 Miss. 142, Sec. 99. McMillan vs. Baker, 20 Kan. 50, Sec. 229. vs. Dana, 18 Cal. 339, Sec. 219, 222. McClure vs. Andrews, 68 Ind. 97, Sec. 276. McClurg vs. Fryer, 15 Pa. 293, Sec. 63. McGurk vs. Huggett, 56 Mich. 187, Sec. 123, 295. McCoUum vs. Gushing, 22 Ark. 540, Sec. 66, 67. McCulloch vs. McKee, 16 Pa. 289, Sec. 146. McClasky vs. Barr, 79 Fed. Rep. 408,- Sec. 71. McClatchie vs. Durham, 44 Mich. 435, Sec. 302. McGrath vs. Clark, 56 N. Y. 34, Sec. 72, 74. McRaven vs. Crisler, 53 Miss. 542, Sec. 73. McCaughey vs. Jacoby, 54 0. S. 487, Sec. 235. vs. Smith, 27 N. Y. 39, Sec. 75. McComb vs. Kittridge, 14 O. 351, Sec. 83. McDonald, In re, 14 N. B. R. 477, Sec. 100. McDonald Mfg. Co. vs. Moran, 52 Wis. 203, Sec. 275. McDonald vs. Magruder, 3 Pet. 470, Sec. 136, 281, 295. vs. Whitfield, 27 Can. (S. C.) 94, Sec. 114. McDowell vs. Bank, 1 Harringt. 569, Sec. 101. vs. Burwell, 4 Rand (Va.) 317, Sec. 192. vs. Laev, 35 Wis. 171, Sec. 160. McLaughlin vs. McGovern, 34 Barb. 208, Sec. 104. McKecknie vs. Ward, 58 N. Y. 541, See. 107. McKeeby vs. Webster, 170 Pa. 624, Sec. 114. McHardy vs. Wadsworth, 8 Mich. 349, Sec. 117. McCosky vs. Barr, 79 Fed. Rep. 408, Sec. 119. McLemore vs. Powell, 12 Wheat. 554, Sec. 122. TABLE OF CASES. 615 (References are to sections.) McPherson vs. Meek, 30 Mo. 345, Sec. 296. vs. Weston, 85 Cal. 90, Sec. 122. McPherson Nat. Bank vs. Vedle, 49 111. App. 21, Sec. 125, 135. JlcCelvey vs. Noble, 12 Rich. L. 167, Sec. 129. McGee vs. Connor, 1 Utah 92, Sec. 129. McKee vs. Campbell, 27 Mich. 497, Sec. 284, 288. vs. Griffin, 60 Ala. 427, Sec. 162. vs. Hamilton, 33 0. S. 7, Sec. 296. MeKey vs. Lauflin, 48 Kan. 581, Sec. 229. McShane vs. Howard Bank, 73 Md. 135, Sec. 148, 191. McCarty vs. Roots, 21 How. 432, Sec. 281. McCarthy vs. Holden, 54 Kans. 313, See. 208. McCartney vs. Shepard, 21 Mo. 573, Sec. 157. McMahon vs. Webb, 52 Miss. 424, Sec. 161. McLeod vs. State, 69 Miss. 221, Sec. 167. McLendon vs. State, 92 Tenn. 520, Sec. 181. McTeer vs. Lebow, 85 Tenn. 121, See. 186. McKim vs. Bartlett, 129 Mass. 226, Sec. 234. vs. Blake, 139 Mass. 593, Sec. 191. MeKnight vs. Bradley, 10 Rich. Eq. (S. C.) 557, Sec. 298. McMicken vs. Comm., 58 Pa. 214, Sec. 194. McKellar vs. Peck, 39 Tex. 381. Sec. 198. MeCalla vs. Patterson, 57 Ky. 201, Sec. 237. McCallion vs. Hibernia Sav'g See., 83 Cal. 571, Sec. 202. McCanna & Fraser Co. vs. Citizens' Trust & Surety Co., 74 Fed. Rep. 597, Sec. 260. McFarlane vs. Howell, 91 Tex. 218, See. 202. McLuckie vs. Williams, 68 Md.- 262, Sec. 215. MeOlendon vs. Wells, 20 S. C. 514, Sec. 217. McDaniel vs. Gardner, 34 La. Ann. 341, Sec. 221. McChord vs. Fisher, 52 Ky. 193, Sec. 239. McCoy vs. State, 37 Tex. 219, Sec. 248. McArdle vs. McDaniel, 75 Ga. 270, See. 248. McGuire vs. Comm., 7 Ky. L. Rep. 287, Sec. 249. McNairy vs. Eastland, 10 Yerg. (Tenn.) 310, See. 266. McNeil vs. Miller, 29 W. Va. 480, Sec. 276. McBride vs. Potter-Lovell Co., 169 Mass. 7, Sec. 283. MeViear vs. Royce, 17 Up. Can. (Q. B.) 529, See. 299. M'Crillis vs. How, 3 N. H. 348, See. 97. Menard vs. Scudder, 7 La. Ann. 385, Sec. 18. Mears vs. Commonwealth, 8 Watts (Pa.) 223, Sec. 21. Meyer vs. Fagan, 34 Neb. 184, Sec. 225. vs. Hartman, 72 111. 442, Sec. 31, 40. vs. Ruhstadt, 66 111. App. 346, See. 36. Meyers vs. Block, 120 U. S. 211, Sec. 209. vs. Campbell, 59 N. J. L. 377, Sec. 272. vs. Farmers' State Bank, 53 Neb. 824, Sec. 99. 616 TABLE OF CASES. (References are to sections.) Meyers vs. Wells, 5 Hill 463, See. 136. Meriden Britannia Co. vs. Zingsen, 48 N. Y. 247, See. 38. Meriden Silver Plate Co. vs. Flory, 44 0. S. 430, See. 115. Merriken vs. Godvi^in, 2 Del. Ch. 236, Sec. 264. Merchants' Ins. Co. vs. Hauck, 83 Mo. 21, Sec. 83. Merchants' Nat. Bank vs. Abernathy, 32 Mo. App. 211, Sec. 272. vs. State Bank, 93 Iowa 650, See. 48. Metropolitan Exhibition Co. vs. Ewing, 42 Fed. Rep. 198, Sec. 49. Metropolitan Life Ins. Co. vs. Bender, 124 N. Y. 47, Sec. 152. Metropolitan Washing Machine Co. vs. Morris, 39 Vt. 393, Sec. 71. Merle vs. Wells, 2 Camp. 413, Sec. 59. Merrill vs. Hurley, 6 S. Da. 592, Sec. 135. Merrells vs. Phelps, 34 Conn. 109, Sec. 241. Mead vs. Merrill, 30 N. H. 472, Sec. 105. Mead vs. Parker, 111 N. Y. 262, Sec. 63. Meador vs. Meador, 88 Ky. 217, Sec. 298. Mersman vs. Werges, 112 U. S. 139, Sec. 75. Meggett vs. Baum, 57 Miss. 22, See. 81. Meiswinkle vs. Jung, 30 Wis. 361, See. 83. Menifee vs. Clark, 35 Ind. 304, Sec. 84. Merrimack Co. Bank vs. Brown, 12 N. H. 320, Sec. 94. Merriman vs. Barker, 121 Ind. 74, Sec. 86. Megrath vs. Gray, L. R., 9 C. P. 216, See. 100. Mechanics' Bank vs. Seitz, 150 Pa. 632, Sec. 101. vs. Wright, 53 Mo. 153, Sec. 112. Metz vs. The People, 6 Col. App. 57, Sec. 162. Metzner vs. Baldwin, 11 Minn. 150, Sec. 112. Melendy vs. Keen, 89 111. 395, Sec. 272. Mellendy vs. Austin, 69 111. 15, Sec. 118. Mendehall vs. Davis, 72 N. C. 150, See. 126. Meserve vs. Clark, 115 111. 580, Sec. 201, 207. Meinhard vs. Youngblood, 37 S. C. 223, Sec. 209. Meysenburg vs. Selieper, 48 Mo. 426, Sec. 213. Meaux vs. Pittman, 35 La. Ann. 360, Sec. 214. Metcalf vs. Young, 43 Ala. 643, Sec. 221. Metrovich vs. Jovovich, 58 Cal. 341, Sec. 223. Medlin vs. Comm., 74 Ky. 605, See. 249. Mercantile Ins. Co. vs. Clark, 118 Mass. 288, Sec. 265. Melms vs. Werdehofif, 14 Wis. 18, Sec. 281. Miller vs. Bagwell, 3 McCord (S. C.) 563, Sec. 144. vs. Dunlap, 22 Mo. App. 97, Sec. 49. vs. Dyer, 1 Duy. (Ky.) 263, Sec. 100. vs. Eceles, 155 Pa. 36, Sec. 76. vs. Pichthorn, 31 Pa. 252, Sec. 144. vs. Pinley, 26 Mich. 240. Sec. 75. vs. Gaskins, Sm. & M. Ch. (Miss.) 524, Sec. 103. vs. Grice, 2 Rich. Law (S. C.) 27,!Sec. 185. TABLE OF CASES. 617 (References are to sections.) Miller vs. Irvine, 1 Dev. & Bat. I^aw 103, See. 27. vs. Kingsbury, 28 111. App. 532, Sec. 160. vs. Moore, 3 Humph. (Tenn.)' 189, Sec. 175. vs. Parker, 73 N. C. 58, See. 209. vs. Rhoades, 20 O. S. 494, Sec. 157. vs. Ridgely, 22 Fed. Rep. 889, Sec. 111. vs. Rivierre, 59 Tex. 640, See. 39. vs. Spain, 41 0. S. 376, See. 94. ys.^ Stem, 2 Pa. 286, Sec. 84. vs.' Stewart, 9 Wheat. 680, Sec. 2, 50, 76, 169, 171. vs. Stout, 5 Del. Ch. 259, Sec. 115. vs. Vaughn, 78 Ala. 323, Sec. 205. vs. Woodward, Adm., 8 Mo. 169, Sec. 301. Miller's Appeal, 35 Pa. St. 481, Sec. 269. Miller's Estate, 82 Pa. St. 113, See. 269. Mills vs. Allen, 7 Jones L. (N. C.) 564, Sec. 180. Mills vs. Brown, 11 Iowa 314, Sec. 34. vs. Gleason, 21 Cal. 274, Sec. 229. vs. Todd, 83 Ind. 25, See. 93. Milroy vs. Quinn et al., 69 Ind. 406, Sec. 6, 61, 68. Minick vs. Huff, 41 Neb. 516, Sec. 34, 297. Mitts vs. McMorran, 64 Mich. 664, Sec. 40. Michael vs. St. L. M. P. Ins. Co., 17 Mo. App. 23, Sec. 49. Mitchell vs. Burton, 2 Head (Tenn.) 613, Sec. 169. vs. Fuller, 15 Pa. 268, Sec. 124. vs. Hawley, 79 Cal. 301, See. 214. vs. Railton, 45 Mo. App. 273, Sec. 52, 65. vs. Smith, 1 Minn. 118, Sec. 156. vs. Sullivan, 30 Kan. 231, Sec. 210. vs. Vance, 5 T. B. Mon. (Ky.) 528, Sec. 144. Miles vs. Linnell, 97 Mass. 298, Sec. 63. Millett vs. Parker, 2 Met. (Ky.) 608, Sec. 74. Milton vs. De Yampert, 3 Ala. 648, See. 129. Middlesex Mfg. Co. vs. Lawrence, 83 Mass. 339, Sec. 147. Middle States L. B. & C. Co. vs. Engle, 45 W. Va. 588, Sec. 63. Michigan State Bank vs. Leavenworth Est., 28 Vt. 209, See. 71. Michigan State Ins. Co. vs. Soule, 51 Mich. 312, Sec. 113. Micklewait vs. Noel, 69 la. 344, Sec. 109. Mix vs. People, 86 111. 329, Sec. 201, 204. Michie vs. Ellair, 60 Mieh. 73, Sec. 205. Mississippi Val. Trust Co. vs. Somerville, 85 Mo. App. 265, See. 205. Mifflin's Appeal, 98 Pa. 150, Sec. 272. Moynahan vs. Hanaford, 42 Mich. 329, Sec. 8, 129. Moies vs. Bird, 11 Mass. 436, Sec. 9. Moye vs. Hemdon, 30 Miss. 110, Sec. 74. Morgan vs. Boyer, 39 0. S. 324, See. 18, 59. vs. Commonwealth, 12 Bush (Ky.) 84, Sec. 245. 618 TABLE OF CASES. (References are to sections.) Morgan vs. Hale, 12 W. Va. 713, Sec. 157. vs. Smith, 70 N. Y. 537, See. 92, 114, 286. vs. Thompson, 60 la. 280, Sec. 84. Monteith vs. Commonwealth, 15 Gratt. 172 Sec. 19. Mowbray vs. State, 88 Ind. 324, Sec. 21, 109, 166. Mortloek vs. Buller, 10 Ves. 292, Sec. 22. Morley vs. Boothby, 3 Bing. 107, Sec. 26. vs. Metamora, 78 111. 394, Sec. 173, 191. Morton vs. Dean, 13 Met. 385, Sec. 29. Morris Canal & Banking Co. vs. Van Vorst, 21 N. J. L. 100, Sec. 158. Morris vs. Cooper, 35 Kas. 156, Sec. 241. vs. Faurot, 21 0. S. 155, Sec. 126. vs. Kniffin, 37 Barb. 336, Sec. 30. vs. State, 47 Tex. 583, See. 180. vs. Wadsworth, 17 Wend. 103, Sec. 68. Morrison vs. Arons, 65 Minn. 321, Sec. 77, 107. vs. Bank, 65 N. H. 253, Sec. 96. vs. Citizens Nat'l Bank, 65 N. H. 253, See. 115. Morrison vs. Poyntz, 7 Dana (Ky.) 307, Sec. 286. vs. Taylor, 21 Ala. 779, Sec. 291. vs. Yancey, 23 Mo. App. 670, Sec. 231. Mobile & Montgomery Ry. vs. Brewer, 76 Ala. 135, Sec. 81. Mobile & Girard K. R. Co. vs. Jones, 57 Ga. 198, Sec. 42. Mobile Life Ins. Co. vs. Randall, 71 Ala. 220, Sec. 85. Moore vs. Boudinot, 64 N. C. 190, Sec. 175. vs. Bruner, 31 111. App. 400, See. 289. vs. Eure, 101 N. C. 11, See. 183. vs. Fitz, 59 N. H. 572, Sec. 85. vs. Gray, 26 0. S. 525, Sec. 95. vs. Holt, 10 Gratt. (Va.) 284, Sec. 50, 58. vs. House, 64 111. 162, Sec. 160. vs. Lassiter, 16 Lea (Tenn.) 630, See. 206, 271. vs. McKenney, 83 Me. 80, Sec. 57. vs. McKinley, 60 la. 367, Sec. 139. vs. Paine, 12 Wend. 123, See. 102. vs. Redding, 69 Miss. 841, Sec. 83. vs. Stevens, 60 Miss. 809, See. 296. vs. Topliff, 107 111. 241, See. 115. Moorer vs. Andrews, 39 S. C. 427, Sec. 213. Morrell vs. Cowan, L. R., 7 Ch. Div. 151, See. 55. Montefiore vs. Lloyd, 15 J. Scott (N. S.) 203, Sec. 53. Montgomery Railroad vs. Hurst, 9 Ala. 513, Sec. 75. Montgomery vs. Dillingham, 11 Miss. 647, Sec. 191. vs. Hamilton, 43 Ind. 451, Sec. 94. vs. Hughes, 65 Ala. 201, Sec. 171. Moulton vs. Posten, 52 Wis. 169, See. 83, 84. Morse vs. Blanchard, 117 Mich. 37, Sec. 83. TABLE OF CASES. 619 (References are to sections.) Morse vs. Hovey, 9 Paige 197, Sec. 103. vs. Huntington, 40 Vt. 488, Sec. 86, 92. Moss vs. Cohen, 36 N. Y. S. 265, Sec. 156. vs. Pettingill, 3 Minn. 217, Sec. 98. vs. Riddle, 5 Cranch 351, Sec. Ill, 145. vs. State, 10 Mo. 338, Sec. 171. Mound vs. Barker, 71 Vt. 253, Sec. 103. Mooney vs. Miller, 102 Mass. 217, Sec. 110. vs. People, 81 111. 134, Sec. 248. Morford vs.«Davis, 28 N. Y. 481, Sec. 121. Moorman vs. Wood, 117 Ind. 144, Sec. 129. Moody vs. Findley, 43 Ala. 167, Sec. 136. Monmouth Park Assn. vs. Wallis Iron Works, 55 N. J. L. 132, Sec. 153. Moran vs. Abbey, 63 Cal 56, See. 276. Morbeck vs. State, 28 Ind. 86, Sec. 184. Morrow et al. vs. United States Mortg. (Jo., 96 Ind. 21, Sec. 277. Moses vs. Ranlet, 2 N. H. 488, Sec. 269. vs. United States, 166 U. S. 571, Sec. 193. Moffat vs. Greenwalt, 90 Cal. 368, Sec. 198. Modawell vs. Hudson, 80 Ala. 265, See. 236. Mbnson vs. Drakelly, 40 Conn. 552, Sec. 271. Mosely vs. Fullerton, 59 Mo. App. 143, Sec. 286, 291. Mulcrone vs. American Lumber Co., 55 Mich. 622, Sec. 38. Murto vs. McKnight, 28 111. App. 238, Sec. 38. Murphy vs. Gage, 21 S. W. (Tex. Civ. App.) 396, Sec. 293. vs. Glass, L. R., 2 P. C. 408, Sec. 117, 275. vs. Hubble, 2 Duv. (Ky.) 247, Sec. 111. vs. Montandon, 2 Idaho 1048, Sec. 216. vs. Renkert, 59 Tenn. 397, Sec. 40. vs. Stell, 43 Tex. 123, Sec. 46. Murphey vs. Gates, 81 Wis. 370, Sec. 42. Mullaly vs. Holden, 123 Mass. 583, Sec. 45. Munster & Leinster Bank vs. France, 24 L. R. Ir. 82, Sec. 86. Mussey vs. Rayner, 22 Pick. 228, Sec. 50, 59, 66, 68. Muzzy vs. Shattuck, 1 Denio (N. Y.) 233, See. 184. Murray vs. Graham, 29 Iowa 520, Sec. 74. vs. Marshall, 94 N. Y. 611, Sec. 90. - — Murrell vs. Scott, 51 Tex. 520, See. 267. Mueller vs. Barge, 54 Minn. 314, Sec. 291. vs. Dobschuetz, 89 111. 176, Sec. 22, 102. vs. Kelley, 8 Col. App. 527, Sec. 198. MuUer vs. Fern, 35 Iowa 420, See. 213. Mullen vs. Morris, 43 Neb. 596, Sec. 145. Mullin vs. Whitmore, 74 N. C. 477, Sec. 165. Mulford vs. Estudillo, 23 Cal. 94, Sec. 274. Mulkey vs. Templeton, 60 S. W. (Tex. Civ. App.) 439, See. 281. Mulcare vs. Welch, 160 Mass. 58, Sec. 136, 295. 620 TABLE Of CASES. (References are to sections.) Municipal Council vs. Peters, 9 lip. Can. (C. P.) 205,. See. 110. Municipal Court of Providence vs. Henry, 11 R. I. 563, Sec. 237. Muscatine Nat. Bank vs. Smalley, 30 la. 564, Sec. 135. Musgrave vs. Dickson, 172 Pa. 629, See. 262. Mumford vs. Memphis & C. Ey. Co., 70 Tenn. 393, Sec. 146. Mumper vs. Kelley, 43 Kan. 256, Sec. 160. Mutual Bldg. & Loan Assn. vs. McMullen, 1 Penny. (Pa.) 431, Sec. 147. Mutual Life Ins. Co. vs. Wilcox, 8 Biss. 197, Sec. 147. Mutual Loan & Bldg. Assn. vs. Miles, 16 Fla. 204, Sec. 147. Mullikin vs. State, 7 Blackf'd (Ind.) 77, Sec. 171. Murdock vs. Brooks, 38 Cal. 596, Sec. 198, 204. Munding vs. Michael, 10 O. C. 0. 165, Sec. 230. Mudd vs. Comm., 14 Ky. L. Rep. 672, Sec. 248. Myers vs. Bank, 79 III. 257, Sec. 83. vs. Wells, 5 Hill 463, Sec. 136. vs. Yaple, 60 Mich. 339, Sec. 265. N National Bank vs. Baker, 58 111. App. 343, Sec. 205. vs. Bigler, 83 N. Y. 51, 64, Sec. 118, 272. vs. Cushing, 53 Vt. 321, Sec. 261, 267. vs. Gerke, 68 Md. 449, Sec. 17. vs. Peck, 127 Mass. 298, Sec. 101. National Bank of Commerce vs. Galland, 14 Wash. 502, See. 135. National Bank of Gloversville vs. Wells, 79 N. Y. 498, Sec. 11. National Bank of Newburgh vs. Smith, 66 N. Y. 271, See. 101, 274. National Bank of Peoria vs. Diefendorf, 90 111. 396, Sec. 52. National City Bank vs. Westcott, 118 N. Y. 468, Sec. 125. -National Eagle Bank vs. Hunt, 16 R. I. 148, Sec. 71. National Exchange Bank vs. McElfresh, 37 S. E. Rep. (W. Va.) 541, Sec. 51. vs. Silliman, 65 N. Y. 475, Sec. 267. National Park Bank vs. German, etc., 116 N. Y. 281, Sec. 166. National Pemberton Bank vs. Lougee, 108 Mass. 373, See. 131. National Mechanics Banking Assn. vs. Conkling, 90 N. Y. 116, See. 2, 76, 150. National Loan & Bldg. Soc. vs. Lichtenwalner, 100 Pa. 103, Sec. 63. Nash vs. Fugate, 24 Grat. 202, Sec. Ill, 145. vs. People, 36 N. Y. 607, Sec. 186. Nason vs. Poor Directors, 126 Pa. 445, See. 186. Natchitoches vs. Redmond, 28 La. Ann. 274, Sec. 155. Nanz vs. Oakley, 120 N. Y. 84, Sec. 240. Nally vs. Long, 56 Md. 567, Sec. 270, 277. Neininger vs. State, 50 0. S. 391, See:^l%i 249. Neff vs. Horner, 63 Pa. St. 327, Sec. 20. ' Neal vs. Buffington, 42 W. Va. 327, Sec. 262, 298. vs. Nash, 23 0. S. 483, Sec. 266. TABLE OF CASES. 621 (References are to sections.) Neal vs. Wilson, 79 Ga. 736, Sec. 132. Neil vs. Morgan et al., 28 111. 524, Sec. 20. Xeilson & Churchill vs. Fry, 16 0. S. 552, Sec. 279, 286. Neelson vs. Sanborne, 2 N. H. 413^ Sec. 27. Nelson vs. Bostwick, 5 Hill 37, See. 68. vs. Boynton, 3 Met. 396, Sec. 41. vs. Donovan, 16 Mont. 85, Sec. 204. vs. First National Bank, 48 111. 36, Sec. 31, 42. vs. Howe Maeh. Co., 10 Ky. L. Rep. 37, Sec. 145. Neagle vs. Kelley, 146 111. 460, See. 43. Neely vs. Bee, 32 W. Va. 519, Sec. 270, 291. vs. Rood, 54 Mich. 134, Sec. 265. New Bedford Institution for Savings vs. Hathaway, 134 Mass. 69, Sec. 269. New Brunswick Land Co. vs. Conbeare, 9 H. L. 711, Sec. 110. New England Co. vs. Randall, 42 La. Ann. 260, Sec. 99. New Haven, etc., Co. vs. Hayden, IID Mass. 361, See. 69. New Haven Lumber Co. vs. Raymond, 76 Iowa 225, Sec. 220. New J. Midland R. R. Co. vs. Wortendyke, 27 N. J. Eq. 658, Sec. 262. New London Bank vs. Lee, 11 Conn. 112, Sec. 272. New National Turnpike Co. vs. Dulaney, 86 Ky. 516, Sec. 214. New Orleans, St. L. & C. Ry. Co. vs. Burke, 53 Miss. 200, Sec. 140. Newman et al. vs. King, 54 O. S. 273, Sec. 73, 74. Newcomb vs. Gibson, 127 Mass. 396, Sec. 300. vs. Hale, 90 N. Y. 326, Sec. 116. vs. Raynor, 21 Wend. 108, Sec. 100, 122. — vs. Worster, 7 Allen 198, Sec. 199. Newark vs. Stout, 52 N. J. 35, See. 107. Newark Coal Co. vs. Upson, 40 0. S. 25, Sec. 209. Newton vs. Bushong, 22 Gratt. 628, Sec. 183. vs. Hammond, 38 0. S. 430, Sec. 242. vs. Lee, 139 N. Y. 332, Sec. 117. vs. Pence, 10 Ind. App. 672, See. 289. Newport Probate Court vs. Hazard, 13 R. I. 3, See. 235. Nevill's Case, 6 Ch. 43,' Sec. 102. Nevitt vs. Woodburn, 160 111. 203, Sec. 238. Nesbitt vs. Turner, 155 Pa. 429, Sec. 151. Neb., L. & T. Co. vs. Lincoln, etc., R. R. Co., 53 Neb. 246, Sec. 197. Neiser vs. Thomas, 46 Mo. App. 47, Sec. 2 14. Nicholson vs. Paget, 5 C. & P. 395, See. 18, 60. Nichols vs. Burch, 128 Ind. 324, See. 99. vs. Johnson, 10 Conn. 192, Sec. 29. vs. Jonesboro, 57 Ark. 168, See. 153. vs. MacLean, 101 N. Y. 528, Sec. 163. vs. Palmer, 48 Wis. 110, ^ec. 73. Nightingale vs. Meginnis, 34 N. J. L. 461, Sec. 83. Nilson vs. Jonesboro, 57 Ark. 168, Sec. 153. Nimocks vs. Welles, 42 Kan. 39, Sec. 214. 622 TABLE OF CASES. (References are to sections.) Nixon vs. Beard, 111 Ind. 137, See. 286, 292. Noyea vs. Granger, 51 Iowa 227, See. 17, 143. vs. Humphreys, 11 Gratt. (Va.) 636, Sec. 36, 46. vs. Nichols, 28 Vt. 159, Sec. 50, 66. Northern Bank of Kentucky vs. Cooke, 13 Bush (Ky.) 340, See. 97. Norris vs. Mersereau, 74 Mich. 687, Sec. 193. vs. Pollard, 75 Ga. 358, See. 103. North Atchison Bank vs. Gay, 114 Mo. 203, Sec. 109. North British Ins. Co. vs. Lloyd, 10 Excq. 523, Sec. 106. Northwestern K. E. Co. vs. Whinray, 10 Ex. 77, Sec. 150. North vs. La Flesh, 73 Wis. 520, Sec. 118. Northampton Nat. Bank vs. Wylie, 52 Hun 146, Sec. 225. Northumberland vs. Cobleigh, 59 N. H. 250, Sec. 140. Northwestern National Bank vs. Kean, 14 Phila. Rep. 7, Sec. 150. Norridgewock vs. Hale, 80 Me. 362, See. 171. Norwood vs. Harness, 98 Ind. 134, Sec. 183. Norcross vs. Nunan, 61 Cal. 640, Sec. 189. Norton vs. Coons, 3 Denia 130, Sec. 279. vs. Davis, 13 Tex. Civ. App. 90, See. 205. Norton vs. Hall, 41 Vt. 471, Sec. 301. vs. Eeid, 11 S. C. 593, See. 298. Noll vs. Smith, 68 Ind. 188, Sec. 205. Noland vs. Wayne, 31 La. Ann. 401, Sec. 304. Nofsinger vs. Hartnett, 84 Mo. 549, Sec. 206. Noble vs. Arnold, 23 O. S. 264, Sec. 214. vs. Turner, 69 Md. 519, Sec. 278. Nockles vs. Bggspieller, 47 Iowa 400, Sec. 220. Nordhaus vs. Petersoni 54 Iowa 68, Sec. 221. Northrup vs. Garrett, 17 Hun 497, Sec. 225. Nugent vs. Wolfe, 111 Pa. St. 471, Sec. 34. N. Y. Life Ins. Co. vs. Hamlin, 100 Wis. 17, Sec. 160. Oak vs. Dustin, 79 Me. 23, Sec. 14. Oaks vs. Weller, 16 Vt. 63, Sec. 65. Oakley vs. Van Noppen. 100 N. C. 287, Sec. 202. Oberbek vs. Mayer, 59 Mo. App. 289, See. 144, 149. Oberne vs. Gaylord, 13 111. App. 30, Sec. 225. O'Connor vs. Braly, 112 Cal. 31, Sec. 96. O'Connor vs. Decker, 95 Wis. 202, Sec. 183. O'Donnell vs. Colby, 153 111. 324, Sec. 232. vs. iieeman, 43 Me. 158, Sec. 29. Odell vs. Howie, 77 Va. 361, See. 239. Oelrichs vs. Spain, 15 Wall. 211, Sec. 214. Offley vs. Johnson, 2 Leon 166, Sec. 279. Offord vs. Davie, 12 J. Scott (N. S.) 748. Sec. 71. Offterdinger vs. Ford, 92 Va. 636, Sec. 220. TABLE OF OASES. 623 (References are to sections.) Ogden vs. Davis, 116 Cal. 32, Sec. 198. Ohio & Miss. Ey. vs. Hardy, 64 Ind. 454, Sec. 12. Ohio vs. Jennings, 4 O. S. 419, Sec. 181. O'Hara vs. Haas, 46 Miss. 374, Sec. 267, 268. O'Howell vs. Kirk, 41 Mo. App. 523, See. 112. Ohmer vs. Boyer, 89 Ala. 273, Sec. 268. O'Leary vs. Martin, 21 La. Ann. 389, Sec. 8. Olean vs. King, 116 N. Y. 355, Sec. 189. Olmsted vs. Olmsted, 38 Conn. 309, Sec. 17. Olmstead vs. Latimer, 158 N. Y. 313, Sec. 82. Oliphant vs. Mansfield, 36 Ark. 191, Sec. 214. Oldham vs. Broom, 28 0. S. 41, Sec. 281. Omaha Nat'l Bank vs. Walker, 5 Fed. Rep. 399, See. 135. Omro Supervisors vs. Kaine, 39 Wis. 468, Sec. 183. O'Neal vs. State, 35 Tex. 130, Sec. 246. O'Neil vs. Nelson, 22 111. App. 531, Sec. 202. Opp vs. Ward, 125 Ind. 241, Sec. 271. Orrick vs. Durham, 79 Mo. 174, Sec. 23, 268. vs. Vahey, 49 Mo. 428, Sec. 235. Orick vs. Colston, 7 Gratt. 189, See. 129, 137. Ordeman vs. Lawson, 49 Md. 135, See. 62. Orear vs. McDonald, 9 Gill. 350, Sec. 121. Oregon Ry. & Nav. Co. vs. Swinburne, 22 Ore. 574, Sec. 141, 146, 153. Ordinary of New Jersey vs. Thatcher, 12 Vroom 403, Sec. 145. Ordinary vs. Kershaw, 14 N. J. Eq. 527, Sec. 238. Orem vs. Wrightson, 51 Md. 34, See. 265. Orton vs. Lincoln, 156 111. 499, Sec. 180. Osborn vs. Cunningham, 4 Dev. & Bat. Law (N. C.) 423, Sec. 296. •vs. Hendrickson, 6 Cal. 175, Sec. 203. vs. Low, 40 O. S. 347, Sec. 83. vs. Robbins, 36 N. Y. 365, Sec. 15, 103. vs. Stone, 30 Minn. 25, Sec. 11. Osborne vs. Baker, 34 Minn. 307, See. 44. vs. Bryce, 23 Fed. Rep. 171, Sec. 117. vs. Endicott, 6 Cal. 149, Sec. 46. vs. GuUikson, 64 Minn. 218, Sec. 61. vs. Lawson, 26 Mo. App. 549, Sec. 57. Otis vs. Van Storch, 15 R. I. 41, Sec. 98, 112. Oury vs. Saunders, 77 Tex. 278, Sec. 276. Overend, Gurney & Co. vs. Oriental Financial Corp., L. R., 7 H. L. 348, Sec. 86, 90. Ovington vs. Smith, 78 111. 250, Sec. 210. Owen vs. Baker, 101 Mo. 407, Sec. 190. vs. Homan, 3 Macn. & G. 378, See. 15, 92, 106. vs. Long, 112 Mass. 403, Sec. 11. vs. McGehee, 61 Ala. 440, Sec. 270, 286. Owens vs. Miller, 29 Md. 144, Sec. 272. 624 TABLE OF CASES. (References are to sections.) Owens vs. Mynatt, 1 Heisk. (Tenn.) 675, Sec. 14. Owings vs. Baker, 54 Md. 82, See. 132. Oxford Bank vs. Haynes, 8 Pick. 423, Sec. 67. vs. Lewis, 8 Pick. 457, oec. 83. Parkhurst vs. Van Cortlandt, 1 Johns. Ch. 274, Sec. 29. vs. Vail, 73 111. 343, Sec. 8, 16, 129. Patterson vs. Freehold Tp., 38 N. J. L. 255, Sec. 171. vs. Gibson, 81 Ga. 802, Sec. 14. vs. McNeely, 16 O. S. 348, Sec. 72. Page vs. Krekey, 137 N. Y. 307, Sec. 15, 108. Partridge vs. Jones, 38 O. S. 375, Sec. 20, 139. Patridge vs. Davis, 20 Vt. 499, Sec. 51. Pannill's Admr. vs. Calloway, 78 Va. 387, Sec. 19. Packard vs. Brewster, 59 Me. 405, See. 160. vs. Richardson, 17 Mass. 121, Sec. 27. Packer vs. Benton, 35 Conn. 343, Sec. 38. vs. Wetherell, 44 111. App. 95, See. 135. Park Bros. & Co. vs. Sykes, 67 Minn. 153, Sec. 149. Parke vs. White River Co., 110 Cal. 658, Sec. 73. Parks vs. Ross, 11 How. 362, Sec. 178. Vs; Wilson, 10 Mod. 515, Sec. 153. Parker vs. Jeffery, 26 Ore. 186, Sec. 149. vs. Nations, 33 Tex. 210, Sec. 123. vs. State, 8 Blackf. (Ind.) 292, Sec. 191. Parkman vs. Brewster, 15 Gray 271, Sec. 61. Parham Sew. Mach. Co. vs. Brock, 113 Mass. 194, Sec. 53. Parham vs. Green, 64 N. C. 436, Sec. 286. Pahlman vs. Taylor, 75 111. 629, Sec. 73. Patchin vs: Swift, 21 Vt. 292, Sec. 27. Patmor vs. Haggard, 78 111. 607, Sec. 27. Patten's Appeal, 45 Pa. St. 151, Sec. 269. Patten vs. Pearson, 57 Me. 428, Sec. 126. Patton vs. Mills, 21 Kan. 163, Sec. 39. Paton vs. Stewart, 78 111. 481, Sec. 112. Palmer vs. Bagg, 56 N. Y. 523, Sec. 53. vs. Foley, 71 N. Y. 106, Sec. 209, 210. vs. Palmer, 36 Mich. 487, Sec. 121. Paul vs. Stackhouse, 38 Pa. 302, Sec. 16, 57. Pawling vs. United States, 4 Cranch 219, Sec. 109, 145. Parmele vs. Brashear, 16 La. (0. S.) 72, Sec. 235. Parmelee vs. Thompson, 45 N. Y. 58, Sec. 82. Pain vs. Packard, 13 Johns. 174, Sec. 116. Paine vs. Voorhees, 26 Wis. 522, Sec. 85. Payne vs. Powell, 14 Tex. 600, Sec. 83. Paddleford vs. Thaeher, 48 Vt. 574, Sec. 102, 136. TABLE OF CASES. 625 (References are to sections.) Parshall vs. Lamoreaux, 37 Barb. 189, Sec. 103. Passumpsic Bank vs. Goss, 31 Vt. 315, Sec. 111. Paxton vs. State, 59 Neb. 460, See. 166, 191. Patzack vs. Von Gerichten, 10 Mo. App. 424, See. 185 Pace vs. Ficklin, 76 Va. 292, Sec. 198. vs. Mississippi, 25 Miss. 54, See. 245. vs. Pace, 19 Fla. 438, Sec. 235. vs. Pace, 95 Va. 792, Sec. 269, 290. Pacific Fire Ins. Co. vs. Pacific Surety Co., 93 Cal. 7, See. 257. Pacific Mail S. S. Co. vs. Lenling, 7 Abb. Pr. (N. S.) 37, Sec. 210. vs. Toel, 85 N. Y. 646, Sec. 210. Pacific National Bank vs. Mixter, 124 U. S. 721, Sec. 219. Parr vs. State, 71 Md. 220, See. 242. Parnell vs. Hancock, 48 Cal. 452, Sec. 202. Parrott vs. Kane, 14 Mont. 23, See. 207. Pashby vs. Mandigo, 42 Mich. 172. Sec. 287. Paulin vs. Kaighn, 29 N. J. L. 480, Sec. 291. People vs. Admire, 39 111. 251, Sec. 237. vs. Brown, 2 Doug. (Mich.) 9, See. 169. vs. Bush, 40 Cal. 344, Sec. 186. vs. Brooks, 22 111. App. 594, Sec. 242. vs. Borders, 31 111. App. 426, Sec. 242. vs. Backus et al., 117 N. Y. 196, Sec. 5. vs. Bostwiek, 32 N. Y. 445, Sec. 74, 109, 145. vs. Buster, 11 Cal. 215, Sec. 114. vs. Cobb, 10 Col. App. 478, Sec. 180. vs. Chalmers, 60 N. Y. 154, Sec. 244. vs. Chisholm, 8 Cal. 29, See. 114. vs. Dennis, 4 Mich. 609, Sec. 248. vs. Fidelity & Casualty Co., 153 111. 25, Sec. 250. vs. Gillman, 125 N. Y. 372, Sec. 248. vs. Huson, 78 Cal. 154, Sec. 19, 121, 166. vs. Healy, 128 111. 9, Sec. 110. vs. Hartley, 21 Cal. 585, Sec. 167. vs. HoUey, 12 Wend. 481, See. 168. vs. Hilton, 36 Fed. Rep. 172, Sec. 180. vs. Hannan, 106 Mich. 421, Sec. 246. vs. Knickerbocker, 114 111. 539, See. 197. vs. Lee, 104 N. Y. 442, See. 55. vs. Love, 19 Cal. 676, Sec. 164. vs. Lucas, 93 N. Y. 585, See. 182. vs. McHatton, 2 Gilm. (111.) 638, Sec. 87. vs. McReynolds, 102 Cal. 308, Sec. 249. vs. Meacham, 74 111. 292, See. 245, 248. vs. Meyer, 29 N. Y. Supp. 1148, See. 249. vs. Moore, 4 N. Y. Cr. Rep. 205, See. 249. vs. Perkins, 85 Cal. 50, Sec. 168. 626 TABLE OF CASES. (References are to sections.) People vs. Eathbone, 145 N. Y. 434, Sec. 163. vs. Russell, 25 Hun 524, Sec. 192. vs. Rose, 174 111. 310, Sec. 250. vs. Remington & Sons, 121 N. Y. 336, Sec. 269. vs. Robb, 98 Mich. 397, Sec. 249. vs. Stephens, 71 N. Y. 527, Sec. 178. vs. Schuyler, 4 N. Y. 173, Sec. 181, 182, 265. vs. Seelye, 146 111. 189, See. 242. vs. Vilas, 36 N. Y. 459, Sec. 170. vs. Warren, 5 Hill (N. Y.) 440, S(*c. 189. vs. White, 28 Hun 289, Sec. 244. vs. Welch, 47 How. Pr. 420, Sec. 246. vs. Zingraf, 43 111. App. 337, Sec. 192. People's Bank vs. Legrand, 103 Pa. o09, Sec. 101. vs. Nat. Bank, 101 U. S. 183, Sec. 11. vs. Pearsons, 30 Vt. 711, Sec. 83. People's Bldg. & Loan Assn. vs. Wroth, 43 N. J. L. 70, Sec. 147, 153. People's & Drovers' Bank vs. Craig, 63 0. S. 374, Sec. 125. Perkins' Admr. vs. Barstow, 6 R. I. 505, Sec. 8, 129. Perkins Co. vs. Miller, 55 Neb. 141, Sec. 164. Perkins vs. Catlin, 11 Conn. 213, Sec. 8, 63. vs. Klein, 62 111. App. 585, Sec. 202. vs. Shadbolt, 44 Wis. 574, Sec. 198. Peck vs. Frink, 10 Iowa 193, Sec. 63, 67. vs. Harris, 57 Mo. App. 467, Sec. 144. vs. State, 63 Ala. 201, Sec. 245. vs. Vandemark, 99 N. Y. 29, Sec. 29. vs. Wilson, 22 111. 205, Sec. 230. Peckham & Spencer vs. Oilman Co., 7 Minn. 446, Sec. 8, 128, 129. Pelham vs. Grigg, 4 Ark. 141, Sec. 139. Peake vs. Dorwin Est., 25 Vt. 28, Sec. 56. Peacock et al. vs. The People, 83 111. 331, See. 14. Peabody vs. State, 4 0. S. 387, Sec. 173. Penn vs. Hamlet, 27 Grat. 337, See. 109. vs. Ingles, 82 Va. 65, See. 118. Penniman vs. Richardson, 3 La. 101, Sec. 210. Penny vs. Crane Bros. Mfg. Co., 80 111. 224, See. 61, 67. Peoria Savings Co. vs. Elder, 165 111. 55, Sec. 50. Penoyer vs. Watson, 16 Johns. 100, Sec. 52. Pendleton vs. Bank of Kentucky, 1 T. B. Mon. 171, Sec. 148. vs. Knickerbocker Life Ins. Co., 7 Fed. Rep. 169, Sec. 121. Pendlebury vs. Walker, 4 Younge 424, Sec. 105. Pencinse vs. Burton, 9 Oregon 178, Sec. 198. Pendery vs. Allen, 50 O. S. 120, See. 272. Peterson vs. Russell, 62 Minn. 220, Sec. 57. Petty vs. Cooke, L. R., 6 Q. B. C. 790, Sec. 97. vs. Douglass, 76 Mo. 70, Sec. 115. TABLE OF CASES. 627- (References are to sections.) Petty VS. Lang, 81 Tex. 238, See. 220. vs. People, 118 111. 148, Sec. 247. Pettee vs. Peppard, 120 Mass. 522, Sec. 160. Pearl vs. Deacon, 24 Beav. 186, Sec. 98, 118. Parley vs. Muskegon Co., 32 Mich. 132, Sec. 183. Perrine vs. Fireman's Ins. Co., 22 Ala. 575, Sec. 101. Peirce vs. Bent, 69 Me. 381, Sec. 117. Pearson vs. State, 7 Tex. App. 279, Sec. 247. Pease vs. Tilt, 9 Daly (N. Y.) 229, Sec. 123. Pence vs. Makepeace, 75 Ind. 580, Sec. 234. Peppin vs. Cooper, 2 Barn. & Aid. 431, Sec. 171. Pettit vs. Mercer, 8 B. Mon. (Ky.) 51, Sec. 217, 220, 225. Petillon vs. Noble, 73 111. 567, Sec. 272. Pegram vs. Eiley, 88 Ala. 399, Sec. 286. Pfeiffer vs. Kingsland, 25 Mo. 66, Sec. 16. Phelps vs. Call, 7 Ired. {N. C.) 262, Sec. 139. vs. Vischer, 50 N. Y. 69, Sec. 8, 10, 129. Philadelphia & R. R. Co. vs. Knight et al., 124 Pa. St. 58, Sec. 11. Philadelphia & Reading Ry. vs. Little, 41 N. J. Eq. 519, Sec. 115. Phillimore vs. Barry, 1 Camp. 513, See. 30. Phillips vs. Bossard, 35 Fed. Rep. 99, Sec. 107. vs. Foxall, L. R., 7 Q. B. 666, Sec. 107. — vs. Plato, 42 Hun 189, Sec. 136. vs. PoolCi 96 Ga. 515, Sec. 161. vs. Ross, 36 0. S. 458, Sec. 244. vs. Rounds, 33 Me. 357, See. 91. vs. Singer Mfg. Co., 88 111. 305, Sec. 161. vs. Solomon, 42 Ga. 192, See. 100. Philbrooks vs. McEwen, 29 Ind. 347, Sec. 99. Phipaburg vs. Dickinson, 78 Me. 457, Sec. 173. Phares vs. Barbour, 49 111. 370, Sec. 9Pi Phelan vs. Johnson, 80 Iowa 727, Sec. 204. Phoenix Ins. Co. vs. Findley, 59 la. 591, Sec. 107, 152. Pidcgck vs. Bishop, 3 Barn. & Cr. 605, Sec. 15, 105. Pittman vs. Chisolm, 43 Ga. 442, Sec. 62. Pitts vs. Congdon, 2 N. Y. 352, Sec. 123. Pittsburg, etc., Ry. Co. vs. SchaeflFer, 59 Pa. 350, See. 107. Pitkin vs. Flanagan, 23 Vt. 160, See. 136. Picket vs. Hawes, 14 Iowa 460, Sec. 67. Pickett vs. State, 16 Tex. App. 648, Sec. 246. Pickens vs. Miller, 83 N. C. 543, Sec. 236. vs. Yarborough, 26 Ala. 417, See. 115. Pioneer Co. vs. Freeburg, 59 Minn. 230, Sec. 77. Pierce vs. Banta, 9 Ind. App. 376, Sec. 207. vs. Hardee, 1 Thomp. & Cook (N. Y.) 557, Sec. 229. vs. Holzer, 65 Mich. 263, Sec. 265. vs. King, 14 R. I. 611, Sec. 229. 628 TABLE OF CASES. (References are to sections.) Pierce vs. Knight, 31 Vt. 701, Sec. 96. vs. Kichardson, 37 N. H. 306, Sec. 166. vs. Whiting, 63 Cal. 538, Sec. 222. vs. Williams, 23 L. J. Ex. 322, Sec. 300. Piercy vs. Piercy, 36 N. C. 214, See. 207. Pierson vs. Catlin, 18 Vt. 77, See. 271. vs. Ells, 46 Hun 336, Sec. 210. Pine Co. vs. Willard, 39 Minn. 125, Sec. 173. Piper vs. Pearson, 2 Gray 120, See. 185. Pike vs. Megoun, 44 Mo. 491, Sec. 186. Pile vs. McCoy, 99 Tenn. 367, Sec. 285. ' Pill vs. State, 43 Neb. 23, Sec. 247. Pico vs. Webster, 14 Cal. 203, Sec. 192. Pinkstaff vs. The People, 59 111. 148, Sec. 235. Platter vs. Green, 26 Kan. 252, Sec. 66. Piano Mfg. Co. vs. Burrows, 40 Kan. 361, Sec. 160. vs. Parmenter, 41 111. App. 635, Sec. 102. Plankinton vs. Gorman, 93 Wis. 560, Sec. 98, 122. Planters Bank vs. Hudgins, 84 Ga. 108, See. 203. Planters Loan & Savings Bank vs. Berry, 91 Ga. 264, Sec. 219. Place vs. Taylor, 22 0. S. 317, Sec. 164, 186. Pledge vs. Buss, Johnson 663, Sec. 98. Plumb vs. Woodmansee, 34 Iowa 116, Sec. 225. Plummer et al. vs. The People, 16 111. 358, Sec. 15. Plunkett vs. Sewing Machine Co., 84 Md. 529, Sec. 73. Portage Bank vs. Lane, 8 0. S. 405, Sec. 20. Porter vs. Drennan, 13 Brad. (111. App.) 362, Sec. 45. vs. Hodenpuyl, 9 Mich. 11, Sec. 94. vs. Singleton, 28 Ark. 483, Sec. 202. vs. Vanderlin, 146 Pa. 138, Sec. 261. vs. Wormser, 94 N". Y. 431, See. 46. Port vs. Bobbins, 35 la. 208, Sec. 112. Pott vs. Nathans, 1 Watts & Serg. (Pa.) 55, Sec. 280. Potter vs. Gronbeck, 117 111. 404, Sec. 71. vs. Pearson, 2 Ld. Raym. 759, Sec. 120. vs. Stevens, 40 Mo. 229, See. 272. vs. The State, 23 Ind. 550, Sec. 20. Power vs. Burmester, 34 N. Y. S. 716, See. 238. vs. Rankin, 114 111. 52, See. 40. Powers vs. Bumcratz, 12 0. S. 273, Sec. 66. vs. Chabot, 93 Cal. 266, Sec. 199. vs. Loughridge, 38 N. J. Eqi 396, Sec. 183. Powers Dry Goods Co. vs. Harlin, 68 Minn. 193, See. 105. Powell vs. Bradley, 9 Gill. & Johns. (Md.) 220, Sec. 110. vs. Chicago Carpet Co., 22 111. App. 409, Sec. 65. vs. Jones, 1 Ired. Eq. N. C. 337, Sec. 265. vs. Kettelle, 6 111. 491, See. 119. TABLE OF CASES. 629 (References are to sections.) Powell VS. Powell, 48 Cal. 235, Sec. 162, 236, 280. vs. Smith, 8 Johns. 250, Sec. 300. Polak vs. Everett, 1 Q. B. Div. 676, Sec. 79, 98. Pollock vs. Gantt, 69 Ala. 373, Sec. 221. PolhlU vs. Brown, 84 Ga. 338, Sec. 297. Polkinghorne vs. Hendricks, 61 Miss. 366, Sec. 83, 128. Pool vs. Doster, 59 Miss. 258, Sec. 272. Poole vs. Cox, 9 Ired. L. (N. C.) 69, Sec. 175. vs. Rice. 9 W. Va. 73, Sec. 85. Post vs. Doremus, 60 N. Y. 371, Sec. 199. Post, Admr., vs. Losey, 111 Ind. 74, Sec. 79, 100. Postmaster Gen'l vs. Norvell, Gilp. 106, Sec. 166. Pooley vs. Harradine, 7 El. & Bl. 431, Sec. 90. Poullain vs. Brown, 80 Ga. 27, Sec. 162. Pomeroy vs. Tanner, 70 N. Y. 547. Sec. 136. Potvin vs. Meyers, 27 Neb. 749, Sec. 264, 266. Powles vs. Hargreaves, 3 DeG., M. & G. 430, Sec. 273. Poignard vs. Vernon, 1 T. B. Mon. (Ky.) 45, Sec. 286. -^ Price vs. Barker, 4 El. & Bl. 760, Sec. 92, 102, 114. -- - vs. Barnes, 7 Ind. App. 1, Sec. 168, 242. vs. Courtney, 87 Mo. 387, See. 276. vs. Dime Savings Bank, 124, 111. 317, Sec. 81. vs. Easton, 4 Barn. & Ad. 433, Sec. 160. vs. Horton, 4 Tex. Civ. App. 526, Sec. 299. vs. Lavender, 38 Ala. 389, Sec. 8, 129. vs. Sanders, 60 Ind. 310, See. 276. vs. Scott, 13 Wash. 574, See. 152. vs. Trusdell, 28 N. J. Eq. 200, Sec. 272. Price Co. Bank vs. McKenzie, 91 Wis. 658, Sec. 136. Pratt vs. Hedden, 121 Mass. 116, See. 9, 16, 136. vs. Thornton, 28 Me. 355, Sec. 272. Prime vs. Koehler, 77 N. Y. 91, Sec. 39. Prout vs. Webb, 87 Ala. 593, See. 41. Prior vs. Kiso, 81 Mo. 241, Sec. 73. Preseott vs. Brinsley, 6 Cush. 233, See. 78. Prescott Bank vs. Caverly, 7 Gray 217, Sec. 121. Preseott vs. Brinsley, 6 Cush. 233, Sec. 78. vs. Gould, 64 la. 44, See. 136, 295. vs. Hull, 23 Grat. 600, Sec. 109, 139. Pritchard vs. Hitchcock, 6 Man. & G. 151, Sec. 97. Prince vs. Skillin, 71 Me. 361, Sec. 163. Prickett vs. People, 88 111. 115, Sec. 170. Pray vs. Wadsell, 146 Mass. 324, Sec. 200. Prairie State Bank vs. United States, 164 U. S. 227, Sec. 265. Prefontaine vs. Richards, 47 Hun 418, Sec. 210. Probate Court vs. Brainard, 48 Vt. 620, Sec. 236. vs. Kent, 49 Vt. 380, Sec. 237. 630 TABLE OF CASES. (References are to sections.) Probate Judge vs. Mathes, 60 N. H. 433, Sec. 234. Proctor vs. Dicklow, 57 Kan. 119, Sec. 238. Putnam vs. Schuyler, 4 Hun (N. Y.) 166, See. 15, 103. PuUiam & Payne vs. Withers, 8 Dana (Ky.) 98, Sec. 16. Putney vs. Farnham, 27 Wis. 187, Sec. 40, 43. Purviance vs. Sutherland, 2 O. S. 478, Sec. 296. Pybus vs. Gibb. 6 El. & Bl. 902, Sec. 87, 170. Pynes vs. State, 45 Ala. 52, Sec. 249. Quinn vs. Hard, 43 Vt. 375, Sec. 108. Quillen vs. Quigley, 14 Nev. 215, Sec. 115, 203. Quinlan vs. Insurance Co., 133 N. Y. 356, Sec. 258. Railton vs. Mathews, 10 01. & Fin. 934, Sec. 15, 106, 145. Kailsback vs. Greve, 58 Ind. 72, Sec. 200. Railroad Co. vs. Trimble, 10 Wall. 367, Sec. 49. Rainbow vs. Juggins, 5 Q. B. Div. 422, Sec. 98. Raikes vs. Todd, 8 Ad. & Ell. 846, Sec. 26. Eawson et al. vs. Taylor et al., 30 O. S. 389, Sec. 23, 90. Eawlings vs. Adams, 7 Md. 26, Sec. 153. Ratliff vs. Trout, 6 J. J. Marsh. 605, See. 27. Raubitschek vs. Blanlc, 80 N. Y. 478, Sec. 28. Raabe vs. Squier, 148 N. Y. 81, Sec. 39. Eabbermann vs. Wiskamp, 54 111. 179, Sec. 43. Rand vs. Barrett, 66 Iowa 731, Sec. 261. Randall vs. Carpenter, 88 N. Y. 293, Sec. 214. vs. Howard, 2 Black. (U. S.) 585, Sec. 46. Randol vs. Tatum, 98 Cal. 390, Sec. 96. Rapelye vs. Bailey, 3 Conn. 438, Sec. 66. Rapp vs. Phoenix Co., 113 111. 390, Sec. 107, 119. Eabbitt vs. Finn, 101 U. S. 7, Sec. 204. Rachelman vs. Skinner, 46 Minn. 196, Sec. 220. Raymond vs. Greene, 12 Neb. 215, Sec. 225. Ralston vs. Wood, 15 111. 159, Sec. 234. Ramey vs. Commonwealth, 83 Ky. 534, Sec. 246, 247, 289. Ramsay's Est. vs. Whitbeck, 183 111. 550, Sec. 296. Rankin vs. Collins, 50 Ind. 158, Sec. 286. Rey et al. vs. Simpson, 22 Howard 341, Sec. 8, 112, 132. Remington S. M. Co. vs. Kezertee, 49 Wis. 409, Sec. 15, 106, 145. Reed vs. Evans, 17 O. 128, Sec. 27. vs. McCourt, 41 N. Y. 435, Sec. 152. vs. Norris, 2 Mylne & Craig 361, Sec. 299. Read vs. McLemore, 34 Miss. 110, Sec. 111. Reid vs. Plippen, 47 Ga. 273, Sec. 301. TABLE OF CASES. 631 (References crc to sections.) Reader vs. Kingham, 13 C. B. N. S. 344, Sec. 32. Reads vs. Cutts, 7 Greenl. 186, Sec. 67. Rees vs. Berrington, 2 Ves. 540, Sec. 81. Reese vs. People, 11 111. App. 346, See. 248. vs. United States, 9 Wall. 13, See. 79, 91, 246. Reeves vs. Chambers, 67 la. 81, Sec. 117. Reuss vs. Picksley, L. R., 1 Ex. 342, Sec. 28. Reusch vs. Keenan, 42 La. Ann. 419, Sec. 115. Resseter vs. Waterman, 151 111. 169, Sec. 34. Reissner vs. Oxley, 80 Ind. 580, Sec. 49. Reisenleiter vs. Lutherische Kirehe, 29 Mo. App. 291, Sec. 49. Reilly vs. Dodge, 131 N. Y. 153, Sec. 71. Reinhart vs. Johnson, 62 Iowa 155, Sec. 270. Reinheimer vs. Carter, 31 O. S. 579, Sec. 45. Reichenbach vs. Sage, 13 Wash. 364, Sec. 153. Reynolds vs. Douglass, 12 Pet. 497, See. 65. vs. Edney, 53 N. C. 406, Sec. 67. vs. Harral, 2 Strob. (S. C.) 87, Sec. 296. vs. Hennessy, 17 E. I. 169, Sec. 159. vs. Ward, 5 Wend. 501, Sec. 83. Remsen vs. Beekman, 25 N. Y. 552, Sec. 116. vs. Graves, 41 N. Y. 471, Sec. 86. Renkert vs. Elliott, 79 Tenn. 235, Sec. 161, 217. Renfroe vs. Colquitt, 74 Ga. 618, See. 177. Ream vs. Lynch, 7 111. App. 161, Sec. 243. Redwood Co. vs. Tower, 28 Minn. 45, Sec. 184. Regina vs. Lane, 2 Ld. Raym. 1304, Sec. 163. Rhea vs. Gibson's Exr., 10 Gratt. 215, Sec. 20, 109. Rheeling's Appeal, 107 Pa. 161, Sec. 276. Rhode vs. McLean, 101 111. 467, Sec. 109. Rhodes vs. Matthews, 67 Ind. 131, See. 39. vs. Sherrod, 9 Ala. 63, See. 136. Rice vs. Cook, 92 Cal. 144, Sec. 213. vs. Downing, 12 B. Men. (Ky.) 44, Sec. 262, 297. vs. Morris, 82 Ind. 204, Sec. 267. vs. Morton, 19 Mo. 263, Sec. 114. vs. Rice, 13 Ind. 562, Sec. 202. vs. Rice. 108 111. 199, See. 265. vs. Rice, 14 B. Mon. (Ky.) 335, Sec. 303. vs. Southgate, 16 Gray 142, Sec. 297. Richards vs. Day, 137 N. Y. 183, Sec. 142. vs. Osceola Bank, 79 la. 707, Sec. 115. vs. Storer, 114 Mass. 101, Sec. 219, 223. vs. The Commonwealth, 40 Pa. 146, 95. Richardson vs. Boynton, 12 Allen 138, Sec. 241. vs. Draper, 87 N. Y. 337, See. 119. vs. Bobbins, 124 Mass. 105, Sec. 41. 632 TABLE OF CASES. (References are to sections.) Richardson vs. Williams, 49 Me. 558, Sec. 40. Richardson School Fund vs. Dean, 130 Mass. 242, Sec. 59. Richeson vs. Crawford, 94 111. 165, Sec. 265. Rindge vs. Judson, 24 N. Y. 64, Sec. 18, 60. Ridgway vs. Ingram, 50 Ind. 145, Sec. 29. Ridgely vs. Bennett, 81 Tenn. 206, Sec. 197. Ring vs. Kelly, 10 Mo. App. 411, Sec. 144. Ringgold vs. Newkirk, 3 Ark. 96, See. 67. Rindskopf vs. Doman, 28 O. S. 516, Sec. 94. _Ripley vs. Gear, 58 Iowa 460, See. 216. "Risley vs. Brown, 67 N. Y. 160, Sec. 69, 119. Ritter vs. Singmaster, 73 Pa. 400, Sec. 97. Rittenhouse vs. Levering, 6 Watts. & Serg. (Pa.) 190, Sec. 278. Riggin vs. Creath, 60 O. S. 114, Sec. 102, 239. Riggs vs. Bell, 42 La. Ann. 666, See. 214. vs. Waldo, 2 Cal. 485, See. 129. Riley vs. Gerrish, 9 Gush. 104, Sec. 137. vs. Mitchell, 38 Minn. 9, Sec. 198. vs. Walker, 42 W. L. B. 275, Sec. 181. Richmond Co. Supv. vs. Wandel, 6 Lans. 33, Sec. 177. Risher vs. Meehan, 11 0. C. C. 403, Sec. 181. Ricketson vs. Compton, 23 Cal. 636, Sec. 197. Riddlesbarger vs. Insurance Co., 7 Wall. 386, Sec. 258. Rizer vs. Callen, 27 Kan. 339, Sec. 299. Robinson vs. Abell et al., 17 O. 36, Sec. -9. vs. Bartlett et al., 11 Minn. 410, Sec. 8, 128. vs. Boyd, 60 O. S. 57, See. 279. vs. Brinson, 20 Tex. 438, Sec. 198. vs. Brown, 82 111. 279, Sec. 204. vs. Dale, 38 Wis. 330, See. 82, 85. vs. Garth, 6 Ala. 204, Sec. 22. vs. Godfrey, 2 Mich. 408, Sec. 93. vs. Gould, 11 Gush. 55, Sec. 14. vs. Hall, 33 Kan. 139, Sec. 165. vs. Hodge, 117 Mass. 222, Sec. 234. vs. Lair, 31 la. 9, Sec. 135. vs. Plimpton, 25 N. Y. 484, Sec. 206. vs. Reed, 46 la. 219, Sec. 129. vs. Soule, 56 Miss. 549, Sec. 100. vs. Teeter, 10 Ind. App. 698, See. 232. Robinson's Case, 131 Mass. 376, Sec. 163. Robbins vs. Ayres, 10 Mo. 538, 539, Sec. 43, 160. vs. Bingham, 4 Johns. 476, See. 52. Roberts vs. Donovan, 70 Cal. 108, Sec. 107. vs. Hawkins, 70 Mich. 566, Sec. 61, 67. vs. Ma.sters, 40 Ind. 461, See. 132. vs. Richardson, 39 Iowa 290, Sec. 81. TABLE OF CASES. 633 (References are to sections.) Roberts vs. Riddle, 79 Pa. 468, Sec. 61, 67. vs. State, 22 Tex. App. 64, See. 249 vs. Stevart, 31 Miss. 664, Sec. 82., vs. The State, 34 Kan. 151, See. 21. Robertson vs. Findley, 31 Mo. 384, Sec. 16, 57. vs. Kensington, 4 Taunt. 30, Sec. 125. vs. Parks, 76 Md. 118, See. 110. vs. Sichel, 127 U. S. 507, See. 187. vs. Smith, 129 Ind. 422, Sec. 212. Robeson vs. Roberts, 20 Ind. 155, Sec. 99, 274. Roper et al. vs. Sangamon Lodge No. 6, 91 111. 518, Sec. 15. Rouse vs. Bradford Banking Co., L. R., 2 Ch. 32, Sec. 90. vs. Mohr, 29 111. App. 321, Sec. 16. Rouss vs. Creglow, 103 Iowa 60, See. 48. Rottman vs. Fix, 25 Mo. App. 571, Sec. 37. Rowan vs. Sharp's Rifle Mfg. Co., 33 Conn. 1, Sec. 73. Rowe vs. Tipper, 13 C. B. 249, Sec. 121. Rowley vs. Howard, 23 Cal. 401, Sec. 165. vs. Jewett, 56 la. 492, Sec. 151. Ross vs. Espy, 66 Pa. 481, See. 126. vs. Ferris, 18 Hun 210, See. 203. vs. Menefee, 125 Ind. 432, Sec. 297. vs. Williamson, 44 Ga. 501, Sec. 168. vs. Wilson, 7 S. & M. (Miss.) 753, See. 272. vs. Wollenberg, 31 Oreg. 269, Sec. 34, 282. Rose vs. Douglass Twp., 52 Kan. 4bl, Sec. 109, 142, 169, 183. vs. Williams, 5 Kan. 483, See. 83. Rosenbaum vs. Goodman, 78 Va. 121, See. 271, 280. Rosenthal vs. Davenport, 38 Minn. 543, Sec. 176. Roosevelt vs. Mark, 6 Johns. Ch. 260, Sec. 296. Rockville Bank vs. Holt, 58 Conn. 526, Sec. 94, 102. Rocco vs. Cicalla, 59 Tenn. 508, Sec. 234. Rogers vs. School Trustees, 46 111. 428, See. 112. vs. Shaw, 59 Cal. 260, Sec. 151. vs. State, 99 Ind. 218, Sec. 173. Rodgers vs. Maw, 15 M. & W. 444, Sec. 299. Ronehel vs. Lofquist, 46 111. App. 442, Sec. 117. Royal Bank vs. Commercial Bank, L. R., 7 App. Cases 366, See. 273. Royal Co. vs. Davies, 40 la. 469, See. 119. Roth vs. Harkson, 18 La. Ann. 705, See. 276. Rothschild vs. Currie, 1 Ad. & Ell. N. S. 43, Sec. 121. vs. Grix, 31 Mich. 150, Sec. 129. Rosson vs. Carroll, 90 Tenn. 90, Sec. 121. Rock Co. Bank vs. Hollister, 21 Minn. 385, Sec. 125. Rochester City- Bank vs. Blwood, 21 N. Y. 88, Sec. 148. Rodney vs. Wilson, 67 Mo. 123, Sec. 126, 127. Rodini vs. Lytle, 17 Mont. 448, See. 192. 634 TABLE OF CASES. (References are to sections.) Eotherham Alum & Chem. Co., In re, L. K., 25 Ch. Div. 103, Sec. 160. Koland vs. Mayor, 83 N. Y. 372, See. 163. Root vs. Caldwell, 54 Iowa 432, Sec. 191. Rodman vs. Moody, 14 Ky. L. Rep. 202, Sec. 201. Roach vs. Gardner, 9 Gratt. 89, Sec. 210. Romine vs. Romine, 59 Ind. 346, See. 299. Roe vs. Kiser, 62 Ark. 92, Sec. 301. Rudy vs. Wolf, 16 Serg. & R. 79, Sec. 6, 61. Rudesill vs. County Court of Jefferson Co., 85 111. 446, Sec. 169. Rudolf vs. Malone, 104 Wis. 470, Sec. 280. Russell vs. Annable, 109 Mass. 72, Sec. 104. vs. Ball, 2 Johns. 50, See. 124. vs. Ballard, 16 B. Mon. (Ky.) 201, Sec. 78. vs. Clark, 7 Craneh 90, Sec. 18, 50, 65. vs. Failor, 1 O. 8. 327, Sec. 103, 279, 292. vs. Parley, 105 U. S. 441, Sec. 196. vs. Freer, 56 N. Y. 67, Sec. 109, 145. vs. Klink, 53 Mich. 161, Sec. 135. vs. Langstaffe, 2 Doug. 514, Sec. 137. Rutenberg vs. Main, 47 Cal. 213, Sec. 30. Ruggles vs. Gatton, 50 111. 412, Sec. 36. vs. Holden, 3 Wend. 216, Sec. 116. Ruffner vs. Love, 33 111. App. 601, Sec. 66. Ruffin vs. Harrison, 81 N. C. 208, Sec. 239. Rucker vs. Robinson, 38 Mo. 154, Sec. 92. Rucks vs. Taylor, 49 Miss. 552, Sec. 278. Rutland vs. Paige, 24 Vt. 181, Sec. 164. Rutherford vs. Moore, 24 Ind. 311, Sec. 213. Rutter vs. Hall, 31 111. App. 647, Sec. 239. Rupert vs. People, 20 Colo. 424, Sec. 245. Rubush vs. State, 112 Ind. 107, Sec. 246. Ryan vs. Krusor, 76 Mo. App. 496, Sec. 286. vs. Morton, 65 Tex. 258, Sec. 79. vs. Shawneetown, 14 111. 20, Sec. 77. vs. Tomlinson, 39 Cal. 639, Sec. 25. Sawyer vs. Chambers, 43 Barb. 622, Sec. 103. vs. Fernald, 59 Me. 500, Sec. 9. Savage vs. First National Bank, 112 Ala. 508, See. 9. vs. Fox, 60 N. H. 17, Sec. 16, 57. Savings Bank vs. Albee, 63 N. H. 152, See. 15, 106. vs. Chick, 64 N. H. 410, Sec. 94. vs. Shaffer, 9 Neb. 1, Sec. 74. Savings Bank of Hannibal vs. Hunt, 72 Mo. 597, Sec. 147. Sandilands vs. Marsh, 2 Barn. & Aid. 673, Sec. 11. San Diego Water Co. vs. Pac. Coast S. S. Co., 101 Cal. 216, Sec. 214. TABLE OF CASES. 635 (References are to sections.) San Francisco vs. Staude, 92 Cal. 560, Sec. 15, 106. San Luis Obispo Co. vs. Farnum, 108 Cal. 567, Sec. 180. Saunders vs. Wakefield, 4 Barn. & Aid. 595, See. 24, 26. Sanders vs. Wertermark, 20 Tex. Civ. App. 175, Sec. 291. vs. Weelburg, 107 Ind. 266, Sec. 270, 290, 291. Sanborn vs. Flagler, 9 Allen 474, Sec. 28, 30. Sanderson vs. Aston, L. E., 8 Ex. 73, Sec. 73, 79, 107. Sanford vs. Willetts, 29 Kan. 647, See. 225. Sage vs. Wilcox, 6 Conn. 81, Sec. 27. Salmon Falls Bank vs. Leyser, 116 Mo. 51, Sec. 298. Salmon Falls Mfg. Co. vs. Goddard, 14 How. U. S. 446, Sec. 29, 30. Salmon vs. Clagett, 3 Bland's Ch. (Md.) 125, See. 92. Saline County vs. Buie, 65 Mo. 63, Sec. 98. Salisbury vs. First Nat. Bank, 37 Neb. 872, Sec. 129. vs. Keigher, 47 Minn. 367, See. 149. Salyers vs. Ross, 15 Ind. 130, See. 236. Sacra vs. Hudson, 59 Tex. 207, Sec. 139. Sacramento Co. vs. Bird, 31 Cal. 66, Sec. 114, 170. . Sacramento Lumber Co. vs. Wagner, 67 Cal. 293, Sec. 43. Sadler vs. Hawkes, 1 Eolle. Abr. 27, pi. 49, Sec. 57. Sabin vs. Harris, 12 Iowa 87, Sec. 67. Saborn vs. Southard, 25 Me. 409, Sec. 126. Sabrinos vs. Chamberlain, 76 Tex. 624, Sec. 238. Samuell vs. Howarth, 3 Meriv. 272, See. 81. Samuels vs. Shelton, 48 Mo. 444, Sec. 165. Sannes vs. Ross, 105 Ind. 558, Sec. 220. Sasscer vs. Young, 6 Gill. & Johns. (Md.) 243, Sec. 98. Saint vs. Wheeler, 95 Ala. 362, Sec. 107. Sagory vs. Metropolitan Bank, 42 La. Ann. 627, Sec. 122. Sargent vs. Robbins, 19 N. H. 572, Sec. 129. vs. Salmond, 27 Me. 539, Sec. 265. vs. Wallis, 67 Tex. 483, Sec. 241. Saffold vs. Wade, 51 Ala. 214, Sec. 272. Sapp vs. Aiken, 68 Iowa 699, Sec. 299. Sayles vs. Sims, 73 N. Y. 551, Sec. 281. Schram vs. Werner, 85 Hun 293, Sec. 280, 281. Screwman's Benv. Assn. vs. Smith, 70 Tex. 168, See. 15. Schuylkill County vs. Copley, 67 Pa. St. 386, See. 15. Schuff vs. Pflanz, 99 Ky. 97, Sec. 168. Schureman vs. People, 55 111. App. 629, See. 191, Schuek vs. Hagar, 24 Minn. 339, Sec. 198. Schuster vs. Weiss, 114 Mo. 158, Sec. 203. Schumcker vs. Steidemann, 8 Mo. App. 302, Sec. 199, 205. Schuyler vs. Sylvester, 28 N. J. L. 487, Sec. 219, 223. Scheid et al. vs. Leibschutz et al., 51 Ind. 38, Sec. 20. Schening vs. Cofer, 97 Ala. 726, Sec. 214. Schafer vs. Farmers' & Mechanics' Bank, 59 Pa. St. 144, Sec. 10, 29, 129. 636 TABLE OF CASES. (References are to sections.) Sehaefer vs. Henkel, 75 N. Y. 378, Sec. 160. Schneider vs. Norris, 2 Maul. & Sel. 286, Sec. 30. vs. Schiflfman, 20 Mo. .^71, Sec. 8, 9 128, 129. vs. Wallingford, 4 Col. App. 150, Sec. 218. Schnitzel's Appeal, 49 Pa. 23, Sec. 263. Sehmechel Cloak & Suit Co., In re., 3 Nat. B. News 110, See. 269. Schwartz vs. Hyman, 107 N. Y. 562, Sec. 59. Schroeppell vs. Shaw, 3 N. if. 446, Sec. 99. Sehroeder vs. Turner, 68 Md. 506, Sec. 129. Schoize vs. Steiner, 100 Ala. 148, Sec. 117. Sehoonover vs. Allen, 40 Ark. 132, Soc. 262, 266. Schlageck vs. Widhalm, 59 Neb. 541, See. 151. Schleissman vs. Kallenberg, 72 Iowa 338, Sec. 266. Schirott vs. Philippi, 3 Oregon 484, Sec. 197. Scarlett vs. Stein, 40 Md. 512, Sec. 29. Scribner vs. Adams, 73 Me. 541, Sec. 261, 270, 291. Scroggin vs. Holland, 16 Mo. 419, See. 103, 117. Scott's Appeal, 88 Pa. 173, Sec. 268. Scott vs. Calkins, 139 Mass. 529, See. 137. vs. Elliott, 63 N. C. 215, See. 229. vs. Hall, 6 B. Mon. (Ky.) 285, Sec. 83. vs. Milton, 26 Fla. 52, Sec. 198. vs. Patehin, 54 Vt. 251, Sec. 265. vs. Phillips, 140 Pa. 51, Sec. 153. vs. Saflfold, 37 Ga. 384, Sec. 83. vs. Timberlake, 83 N. C. 382, Sec. 298. vs. White, 71 111. 287, Sec. 41. Scott Co. vs. Fluke, 34 Iowa 317, See. 187. vs. Ring, 29 Minn. 398, Sec. 173. Scotten vs. Fegan, 62 Iowa 236, Sec. 188. Scoiield vs. Churchill, 72 N. Y. 565, Sec. 235. vs. Gaskill, 60 Ga. 277, Sec. 285. Seymour vs. Farrell, 51 Mo. 95, Sec. 132. vs. Leyman & Mickey, 10 O. S. 283, Sec. 132. vs. Mickey, 15 0. S. 515, Sec. 8, 9, 112, 128. Sears vs. Brink, 3 Johns. 210, Sec. 27. vs. Lantz, 47 la. 658, Sec. 135. vs. Seattle Consol. St. Ry. Co., 7 Wash. 286, Sec. 198. Seaman vs. Slater, 18 Fed. Rep. 485, See. 69. Seaver vs. Pierce, 42 Vt. 325, See. 190. Seavey vs. Beckler, 132 Mass. 203, Sec. 223. Seattle Crockery Co. vs. Haley, 6 Wash. 302, Sec. 217, 222, 225. Searing vs. Berry, 58 Iowa 20, Sec. 266. Second Nat'l Bank vs. Hill, 76 Ind. 223, Sec. 101. vs. Wentzel, 151 Pa. 142, Sec. 97. Seligman vs. Gray, 66 Mieh. 341, Sec. 114. Sefton vs. Hargett, 113 Ind. 592, Sec. 117. TABLE OF CASES. 637 (References are to sections.) Sepp VS. McCann, 47 Minn. 364, Sec. 149. Seat vs. Cannon, 20 Tenn. 471, See. 238. Seidenbender et al. vs. Charles Adm., 4 S. & R. 151, Sec. 156. Seixas vs. Gonsoulin, 40 La. Ann. 351, See. 268. Seibert vs. True, 8 Kas. 52, See. 272. Seffes vs. Lemke^ 40 Minn. 27, Sec. 149. Sedgwick vs. Dawkins, 15 Fla. 572, See. 198. Senseuig vs. Parry, 113 Pa. 115, Sec. 213, 214. Seegars Ex'rs. vs. State, 5 Har. & J. (Md.) 488, Sec. 237. Security Ins. Co. vs. St. Paul Ins. Co., 50 Conn. 233, Sec. 288, 290. Shines Admr. vs. Central Savings Bank, 70 Mo. 524, Sec. 17, 50. Shields vs. Titus, 46 O. S. 541, See. 45. Shickle Iron Co. vs. Water Works Co., 83 Iowa 396, Sec. 50. Snipp's Adm. vs. Suggett's Adm., 9 B. Mon. 8, See. 75. sfiimer vs. Hightshue, 7 Black. (Ind.) 238, See. 203. Shipwith vs. Hurt, 94 Tex. 322, Sec. 265. Shinn vs. SMnn, 91 111. 477, Sec. 268. Shepherd vs. May, 115 U. S. 505, Sec. 23, 90. Shepard vs. Pebbles, 38 Wis. 373, See. 243, 285. Sheppard vs. Collins, 12 Iowa 570, Sec. 216. Sherwood vs. Stone, 14 N. Y. 267, Sec. 44. Sherry vs. Miller, 7 Lea 305, See. 99. Sherrell vs. Goodrum, 3 Humph. 419, Sec. 174. Sheldon vs. Davidson, 85 Wis. 138, Sec. 110. vs. Hill, 33 Mich. 171, Sec. 185. vs. Van Buskirk, 2 N. Y. 473, Sec. 189. vs. Williams, 11 Neb. 272, Sec. 99. Shelton vs. Smith, 62 Tenn. 82, Sec. 241. vs. State, 53 Ind. 331, Sec. 177. Shenandoah Bank vs. Ayres, 87 la. 626, Sec. 115. Shelby vs. Alcorn, 36 Miss. 289, Sec. 163. Sherman's Admr. vs. Shaver, 75 Va. 1, Sec. 270, 271. Sherman vs. Black, 49 Vt. 198, Sec. 281. vs. Foster, 158 N. Y. 587, Sec. 291. Shook vs. Vanmater, 22 Wis. 532, Sec. 31. Shows vs. Pendry, 93 Ala. 248, Sec. 205. Sharkey vs. McDermott, 91 Mo. 647, See. 45. Shakman vs. Credit System Co., 92 Wis. 366, See. 250. ShafFstall vs. MeDaniel, 152 Pa. 598, See. 82. Sharp vs. AUgood, , 100 Ala. 183, Sec. 108. vs. U. S., 4 Watts (Pa.) 21, See. 111. Sharpe va. Harding, 65 Mo. App. 28, See. 210. vs. Hunter, 16 Ala. 765, Sec. 220. vs. Smith, 59 Ga. 707, Sec. 248. vs. Speckenagle, 3 Serg. & E. 463, Sec. 100. Shaekamaxon Bank vs. Yard, 143 Pa. 129, Sec. 119. Shaw vs. Knox, 98 Mass. 214, Sec. 136. 638 TABLE OF CASES. (References are to sections.) Shattuek vs. Adams, 136 Mass. 34, See. 153. Sharon vs. Hill, 26 Fed. Eep. 345, Sec. 197. Shannon vs. Dodge, 18 Colo. 164, Sec. 204, 206. Shaeffer vs. Clendenin, 100 Pa. 565, See. 270. Shevlin vs. Whelen, 41 Wis. 88, Sec. 219. Shupe vs. Galbraith, 32 Pa. 10, Sec. 57. Shutts vs. Fingar, 100 N. Y. 539, See. 100. Shumway vs. Reed, 34 .Me. 560, Sec. 158. Shultz vs. Morrison, 60 Ky. 98, See. 225. Shreve vs. Hankison, 34 N. J. Eq. 76, Sec. 277. Shreffler vs. Nadelhoffer, 133 111. 536, See. 211. Shrewsbury Savings Institution's Appeal, 94 Pa. 309, Sec. 158. Shriver vs. Lovejoy, 32 Cal. 574, See. 112. vs. Reister, 65 Md. 278, Sec. 234. Singer Mfg. Co. vs. Bennett, 28 W. Va. 16, Sec. 281. vs. Forsyth, 108 Ind. 334, Sec. 144. vs. Draughan, 121 N. C. 88, See. 71. vs. Littler, 56 lovra 601, Sec. 5. vs. Ponder, 82 Tex. 653, Sec. 162. Sibley vs. McAllister, 8 N. H. 389, Sec. 301. vs. Williams, 3 Gill. & Johns. (Md.) 62, Sec. 25. Simpson vs. Comm. 31 Ky. 523, Sec. 248. vs. Hall, 47 Conn. 417, See. 25. vs. Henning, L. R., 10 Q. B. 406, See. 100. vs. Nance, 1 Spears (S. C.) 4 Sec. 34. vs. Penton, 2 Cromp. & Mees. 430, Sec. 36. vs. Vaughan, 2 Atk. 31, See. 69, 119. Simson vs. Brown, 68 N. Y. 355, Sec. 149. vs. Cooke, 8 Moore 558, Sec. 54. Simons vs. Steel, 36 N. H. 73, Sec. 50. Simmons vs. Camp, 71 Ga. 54, Sec. 285, 291. vs. Jackson, 63 Tex. 428, Sec. 177. Simonds vs. Heinn, 22 La. Ann. 296, Sec. 203. Simonson vs. Grant, 36 Minn. 439, See. 79. Simeon vs. Cram, 121 Mass. 492, Sec. 223. Sims vs. Harris, 47 Ky. 55, Sec. 161. vs. Wallace, 6 B. Mon. (Ky.) 410, Sec. 298. Sigourney vs. Wetherell, 6 Met. 553, Sec. 66, 86, 94, 96. Sichel vs. Cai-rillo, 42 Cal. 500, Sec. 95. Sitgreaves vs. Farmers Bank, 49 Pa. 359, Sec. 99. Silbeneck vs. Anchor, 111 Pa. 187, See. 122. Silsbe vs. Lucas, 53 111. 479, Sec. 213. Siebert vs. True, 8 Kas. 52, See. 272. Skillett vs. Fletcher, 1 L. E. C. P. 217, See. 170. Skinker vs. Armstrong, 86 Va. 1011, Sec. 43. Skinner vs. Tirrel, 159 Mass. 474, Sec. 276. Skipwith vs. Hurt. 94 Tex. 322, See. 265. TABLE OF CASES. 639 (References are to sections.) Skrainka vs. Rohan, 18 Mo. App. 341, Sec. 292. Slack vs. Kirke, 67 Pa. St. 380, Sec. 8, 129, 276. Slagle vs. Entrekin, 44 0. S. 637, See. 238. Sledge vs. Lee, 19 Ga. 411, See. 215. Sleigh vs. Sleigh, 5 Ex. 514, Sec. 302. Sloan vs. Gibbes, 56 S. C. 480, Sec. 286, 289. vs. Langert, 6 Wash. 26, Sec. 222. Sloo vs. Pool, 15 111. 47, Sec. 286. Smith vs. Allen et al., 1 N. J. Eq. 43, Sec. 17. vs. Austin, 9 Mich. 465, Sec. 276. vs. Bland, 46 Ky. 21, See. 235. vs. Butler, 25 N. H. 524, Sec. 140. vs. Clarke, 1 Esp. 180, Sec. 124. vs. Conrad, 15 La. Ann. 579, Sec. 291. vs. Cuyler, 78 Ga. 654, Sec. 234. vs. Dann, 6 Hill 544, Sec. 66. vs. Eakin, 2 Sneed (Tenn.) 456, See. 215, 217. vs. Easton, 54 Md. 138, See. 30. vs. Erwin, 77 N. Y. 466, See. 99. vs. Exchange Bank, 110 Pa. 508, Sec. 40. vs. Freyler, 4 Mont. 489, See. 115. vs. Gillam, 80 Ala. 296, Sec. 95. vs. Gregory, 26 Gratt. (Va.) 248," Sec. 239. vs. Gummere, 39 N. J. Eq. 27, Sec. 241. vs. Harbin, 124 Ind. 434, Sec. 278. vs. Hughes, 24 111. 270, Sec. 204. vs. Hyde, 36 Vt. 303, Sec. 83. vs. Ide, 3 Vt. 290, Sec. 27. vs. Jackson, 97 la. 112, Sec. 158. vs. Jones, 76 Me. 138, Sec. 189. vs. Keniston, 100 Mass. 172, Sec. 189. vs. Kirkland, 81 Ala. 345, Sec. Ill, 145. vs. Kitchens, 51 Ga. 158, See. 249. vs. Kuhl, 26 N. J. Eq. 97, Sec. 209. vs. Latimer, 15 B. Mon. (Ky.) 75, Sec. 265. vs. Lisher, 23 Ind. 500, Sec. 230. vs. Mason, 44 Neb. 610, Sec. 286, 288, 289. vs. Montgomery, 3 Tex. 199, Sec. 50, 52. vs. Molleson, 148 N. Y. 241, Sec. 50, 144. vs. Moberly, 10 B. Mon. (Ky.) 266, Sec. 111. vs. Morrill, 54 Me. 48, See. 126, 136, 295. vs. Moore, 90 Ind. 294, See. 163. vs. Old Dominion Building Assn., 119 N. C. 257, Sec. 96. vs. Rumsey, 33 Mich. 183, Sec. 266, 287. va. Sayward, 5 Me. 504, Sec. 296. vs. Shelden, 35 Mich. 42, Sec. 23, 90. vs. State, 46 Md. 617, Sec. 114, 286. 640 TABLE OF CASES. (References are to sections.) Smith vs. State, 12 Neb. 309, Sec. 249. vs. Steele, 25 Vt. 427, Sec. 89. vs. United States, 2 Wall. 219, Sec. 74, 171. vs. United States Express Co., 135 111. 279, Sec. 219. vs. Whitaker, 11 111. 417, Sec. 198. vs. Whiting, 100 Mass. 122, Sec. 229. Smith's Executors vs. Anderson, 18 Md. 520, See. 279. Smithwick vs. Kelly, 79 Tex. 564, Sec. 198. Snyder vs. Click, 112 Ind. 293, Sec. 66. vs. Oatman, 16 Ind. 265, Sec. 132. vs. State, 5 Wyo. 318, Sec. 119. Snow vs. Horgan, 18 R. I. 289, See. 115. Snee vs. Prescot, 1 Atk. 245, Sec. 125. Sooy vs. Stat^ 39 N. J. Law 135, Sec. 15, 106, 164, 191. South Berwick vs. Huntress, 53 Me. 89, Sec. 20, 109, 142. Southerland vs. Fremont, 107 N. C. 565, Sec. 131. Sotheren vs. Reed, 4 Harr. & J. (Md.) 307, Sec. 266. Solary vs. Stultz, 22 Fla. 263, Sec. 56, 82, 96. Sohier vs. Lohring, 6 Cush. 537, See. 92. Scares vs. Glyn, 8 Ad. & Ell. N. S. 24, Sec. 125. Society vs. Fitzwilliams, 84 Mo. 406, Sec. 191. Sosman vs. Conklin, 65 Mo. App. 319, Sec. 205. Spies vs. Gilmore, 1 N. Y. 322,* See. 8. Spaulding vs. Andrews, 48 Pa. 411, Sec. 42. vs. Putnam, 128 Mass. 363, Sec. 8. Spencer vs. Almoney, 56 Md. 551, Sec. 117. vs. AUerton, 60 Conn. 410, Sec. 112, 129. vs. Handley, 5 Scott N. R. 546, Sec. 15, 145. vs. Halpern, 62 Ark. 595, Sec. 13B. vs. Houghton, 68 Cal. 82, Sec. 114. Speyer vs. Desjardins, 144 111. 641, Sec. 45. Springs vs. McCoy, 122 N. C. 628, Sec. 296. Springer vs. Dwyer, 50 N. Y. 19, Sec. 275. Springer Lith. Co. vs. Graves, 97 la. 39, See. 94. Spurgeon vs. Smith, 114 Ind. 453, Sec. 96. Spurlock vs. Earles, 67 Tenn. 437, Sec. 235. Spycher vs. Werner, 74 Wis. 456, Sec. 97. Sperry vs. Dransfield, 2 New Zealand, S. C. 319, Sec. 148. Sprague vs. Wells, 47 Minn. 304, Sec. 153, 161. Spear vs. Stacy, 26 Vt. 61, Sec. 153. Speed vs. Common Council, 97 Mich. 198, Sec. 166. Spokane & I. Lumber Co. vs. Loy, 21 Wash. 501, Sec. 155. Sponhaur vs. Malloy, 21 Ind. App. 287, See. 301. Sparks vs. Farmers' Bank, 3 Del. Ch. 275, Sec. 15t. Spain vs. Clements, 63 Ga. 786, Sec. 176. Sperb vs. McCoun, 110 N. Y. 605, Sec. 240. Sproat vs. Comm., 4 Ky. L. Rep. 629, See. 248. TABLE OF CASES. 641 (References are to sections.) Spangler vs. Sheffer, 69 Pa. 255, Sec. 274. State vs. Ansley, 13 La. Ann. 298, See. 246. vs. Aubrey, 43 La. Ann. 188, Sec. 246. vs. Allen, 33 Ala. 422, See. 247. vs. Allen, 21 Tenn. 258, Sec. 249. vs. Allen, 69 Miss. 508, Sec. 109. vs. Adams, 40 Tenn. 259, Sec. 248. vs. Andrews, 39 W. Va. 35, Sec. 225. vs. Anderson, 84 Tenn. 321, Sec. 239. vs. Atherton, 40 Mo. 209, Sec. 114, 153. vs. Alden, 12 0. 59, Sec. 96. vs. Brown, 16 Iowa 314, Sec. 247. vs. Brown, 54 Md. 318, Sec. 182. vs. Brown, 11 Ired. (N. C.) 141, Sec. 182. vs. Brown, 80 Ind. 425, See. 234. vs. Banks, 48 Md. 513, Sec. 162. vs. Barrett, 121 Ind. 92, See. 235, 239. vs. Berning, 74 Mo. 87, Sec. 236, 238. vs. Branch, 134 Mo. 592, Sec. 242. vs. Burnham, 44 Me. 278, Sec. 248. vs. Bryant, 55 Iowa 451, See. 248. vs. Bell, 116 Ind. 1, Sec. 163. vs. Bus, 135. Mo. 325, Sec. 165. vs. Beard, 34 La. Ann. 273, See. 168. vs. Berg, 50 Ind. 496, Sec. 169. vs. Bonner, 72 Mo. 387, Sec. 180. vs. Beekner, 132 Ind. 371, Sec. 181. vs. Brantley et al., 27 Ala. 44, Sec. 14. vs. Blake, 2 0. S. 151, Sec. 95. vs. Benton, 48 N. H. 551, See. 111. vs. Boeing, 15 0. 507, Sec. 109. ^s. Bennett, 24 Ind. 383, Sec. 162. vs. Benzion, 79 Iowa 467, Sec. 246. vs. Breen, 6 S. D. 537, Sec. 246. vs. Bilby, 50 Mo. App. 162, Sec. 241. vs. Cunningham, 10 La. Ann. 393, Sec. 249. vs. Carriek, 70 Md. 586, See. 186. vs. Cason, 11 S. C. 392, Sec. 193. vs. Campbell, 10 Mo. 724, Sec. 240. vs. Cheston, 51 Md. 352, Sec. 239. vs. Cone, 32 Ga. 663, Sec. 249. vs. Caldwell, 124 Mo. 509, Sec. 245. vs. Cobb, 71 Me. 198, Sec. 248. vs. Clark, 73 N. C. 255, Sec. 184. vs. Clarke, 21 Nev. 333, Sec. 163. vs. Churchill, 41 Mo. 42, Sec. 168. vs. Churcbitl, 48 Ark. 426, Sec. 109. 642 TABLE OF CASES. (References are to sections.) State vs. County Court, 44 Mo. 230, See. 168. vs. Colvig, 15 Greg. 57, Sec. 168. vs. Crooks, 7 0. (Pt. 2) 221, Sec. 175. vs. Chadwiek, 10 Oreg. 465, Sec. 176. vs. Conover, 28 N. J. L. 224, See. 182. vs. Copeland, 96 Tenn. 296, Sec. 183. vs. Crowley, 60 Me. 103, Sec. 248, vs. Conway, 18 O. 234, Sec. 95. vs. Coste, 36 Mo. 437, Sec. 103. vs. Creusbauer, 68 Mo. 254, Sec. 238. vs. Craig, 58 Iowa 238, See. 74. vs. Carleton, 1 Gill. (Md.) 249, See. 87. vs. Doane, 32 Neb. 707, Sec. 197. vs. Dunn, 60 Mo. 64, Sec. 227. vs. Dunn, 11 La. Ann. 549, Sec. 75. vs. Dunnington, 12 Md. 340, Sec. 166. vs. Dent, 121 Mo. 162, Sec. 111. vs. Elliott, 157 Mo. 609, See. 235. vs. Emily, 24 Iowa 24, Sec. 248. vs. Falconer, 44 Ala. 696, Sec. 168. va. Farmer, 21 Mo. 160, Sec. 181. vs. Flinn, 77 Ala. 100, See. 166. vs. Finn, 23 Mo. App. 290, Sec. 175. vs. Felton, 59 Miss. 402, Sec. 172. vs. Fitzpatrick, 64 Mo. 185, Sec. 181. vs. Findley, 101 Mo. 368, See. 12. vs. Findley, 10 O. 51, See. 21. vs. Frank, 51 Mo. 98, Sec. 17. vs. Forno, 14 La. Ann. 450, Sec. 248. vs. Gramm, 7 Wyo. 329, Sec. 183. vs. Greaves, 8 Mo. 148, Sec. 186. vs. Gage, 52 Mo. App. 464, Sec. 225. vs. Gregory, 119 Ind. 503, Sec. 235. vs. Gilbert, 10 La. Ann. 532, Sec. 245. vs. Harbrldge, 43 Mo. App. 16, Sec. 241. vs. Hewitt, 72 Mo. 603, See. 108; vs. Harrington, 41 Mo. App. 439, Sec. 157. va. Harney, 57 Miss. 863, Sec. 164, 169, 189. vs. Heisey, 56 Iowa 404, Sec. 164. vs. Hill, 47 Neb. 456, Sec. 183. vs. Harper, 6 0. S. 608, Sec. 184. vs. Houston, 78 Ala. 576, Sec. 186. vs. Horn, 70 Mo. 466. Sec. 249. vs. Hoster, 61 Mo. 544, Sec. 243. vs. Homey, 44 Wis. 615, Sec. 205. vs. Heckart, 62 Mo. App. 427, Sec. 225. vs. Hendricks, 40 La. Ann. 719, Sec. 245. TABLE OF CASES. (References are to sections.) 643 State vs. Humbird, 54 Md. 327, Sec. 152. vs. Ingram, 27 N. C. 441, See. 141. vs. Jefferson, 66 N. C. 309, Sec. 165. vs. Johnson, 55 Mo. 80, Sec. 172. vs. Johnson, 4 Wall. 498, Sec. 185. vs. Judge of Superior Dist. Ct., 28 La. Ann, 547, Sec. 197. vs. Jennings, 14 0. S. 73, See. 193. vs. Jamea, 82 Mo. 509, Sec. 234, 235. vs. Kyle, 99 Ala. 256, Sec. 248. vs. Kennon, 7 O. S. 559, See. 163. vs. Keim, 8 Neb. 63, Sec. 17T. vs. Lay, 128 Mo. 609, See. 246. vs. Lansing, 46 Neb. 514, Sec. 168. vs. Lanier, 31 La. Ann. 423, Sec. 184. vs. Lingerfelt, 109 N. C. 775, Sec. 249. vs. Livingston, 117 Mo. 627, Sec. 248. vs. Leeds, 31 N. J. L. 185, Sec. 192. vs. McFetridge, 84 Wis. 473, Sec. 177. vs. McDonough, 9 Mo. App. 63, Sec. 181. vs. McGonigle, 101 Mo. 353, Sec. 74. vs. MeGlothian, 61 Iowa 312, Sec. 224. vs. McKeon, 25 Mo. App. 667, Sec. 275. vs. McNally, 34 Me. 210, Sec. 189. vs. McGuire, 16 E. I. 519, Sec. 248. vs. McNeal, 18 N. J. L. 333, Sec. 249. vs. Medaiy, 17 0. 55, Sec. 2, 17, 50, 189. vs. Mataon, 44 Mo. 305, Sec. 114. vs. Mann, 34 Vt. 371, Sec. 147, 171. vs. May, 106 Mo. 488, Sec. 163. vs. Moses, 18 S. C. 366, Sec. 175. vs. Moore, 56 Neb. 82, Sec. 180. vs. Moore, 74 Mo. 413, See. 183. vs. Morgan, 124 Mo. 467, Sec. 248. vs. Merrihew, 47 Iowa 112, Sec. 248. vs. Millsaps, 69 Mo. 359, Sec. 248. vs. Murmann, 124 Mo. 502, Sec. 249. vs. Meagher, 44 Mo. 356, Sec. 183. vs. Nevin, 19 Nev. 162, Sec. 183. vs. Nicol, 30 La. Ann. 628, Sec. 245. vs. Orsler, 48 Iowa 343, Sec. 249. vs. Peck, 53 Me. 284, Sec. 15, 74, 111. vs. Parker, 72 Ala. 181, Sec. 102, 103. vs. Pepper, 31 Ind. 76, Sec. 20. vs. Pureell, 31 W. Va. 44, Sec. 21. vs. Potter, 63 Mo. 212, See. 74. vs. Powell, 40 La. Ann. 234, Sec. 173. vs. Poston, 63 Mo. 521, Sec. 248. 644 TABLE OF CASES. (References are to sections.) State VS. Powers, 52 Miss. 198, See. 162. vs. Polk, 14 Lea (Tenn.) 1, Sec. 164. vs. Peckham, 136 Ind. 198, Sec. 243. vs. Porter, 9 Mo. 356, Sec. 237. vs. Roberts, 68 Mo. 234, Sec. 87. vs. Roberts, 12 N. J. L. 114, Sec. 174. vs. Ruff, 14 Wash. 234, Sec. 168. vs. Rhoades, 6 Nev. 352, Sec. 191. vs. Rush Co. Com'rs, 35 Kan. 150, Sec. 209. vs. Ridgley, 10 La. Ann. 302, Sec. 248. vs. Rosswaag, 3 Mo. App. 11, Sec. 243. vs. Shobe, 23 Mo. App. 474, Sec. 225. vs. Shaokleford, 56 Miss. 648, Sec. 241. vs. Sixth Judicial Dist. Ct., 22 Mont. 449, Sec. 200. vs. Smith, 66 N. C. 620, Sec. 246. vs. Slauter, 80 Ind. 597, Sec. 243. vs. Sureties of Krohne, 4 Wyo. 347, Sec. 248. ■ vs. Schexneider, 45 La. Ann. 1445, Sec. 248. vs. Scott, 20 Iowa 63, See. 248, 249. vs. Suwannee Co. Commissioners, 21 Fla. 1, Sec. 141. vs. Sooy, 39 N. J. L. 539, See. 173. vs. Sappington, 67 Mo. 529, Sec. 175. vs. Swinney, 60 Miss. 39, Sec. 87. vs. Shelvin Carpenter Co., 62 Minn. 99, Sec. 232. vs. Tiedemann, 69 Mo. 515, Sec. 143. vs. Toomer, 7 Rich. Law Rep. (S. C.) 216, Sec. 168. vs. Tucker, 54 Ala. 205, Sec. 168. vs. Walsen, 17 Col. 170, Sec. 177. vs. Wilson, 29 0. S. 347, Sec. 163. vs. Wooten, 4 La. Ann. 515, See. 248. vs. Wakely, 28 Neb. 431, Sec. 209. vs. Walsh, 67 Mo. App. 348, Sec. 235. vs. Young, 23 Minn. 551, Sec. 172. vs. Young, 20 La. Ann. 397, Sec. 247. State Bank vs. Bartle, 114 Mo. 276, Sec. 99. vs. Burton-Gardner Co., 14 Utah 420, Sec. HI. vs. Chetwood, 8 N. J. L. 1, See. 152. vs. Smith, 155 N. Y. 185, Sec. 98, 261. Stein vs. Passmore, 25 Minn. 256, Sec. 8, 129. Steinhardt vs. Leman, 41 La. Ann. 835, Sec. 220. Steinhauer vs. Colmar, 11 Colo. App. 494, Sec. 204. Standard Brewery vs. Kelly, 66 111. App. 267, Sec. 11. Standard Oil Co. vs. Holmes, 82 111. App. 476, Sec. 155. Stanley vs. McElrath, 86Cal. 449, See. 299, 302. vs. Miles & Adams, 36 Mias. 434, Sec. 16. vs. Western Ins. Co., L. R., 3 Ex. 71, Sec. 49. Stanford vs. Connery, 84 Ga. 731, Sec. 299. TABLE OF CASES. 645 (References are to sections.) State Lunatic Asylum vs. Douglas, 77 Mo., 647, Sec. 20. Starlha vs. Greenwood, 28 Minn. 521, Sec. 43. Starry vs. Johnson, 32 Ind. 438, Sec. 114. Staver vs. Locke, 22 Ore. 519, Sec. 50. vs. Missiner, 6 Wash. 173, Sec. 93. Stallings vs. Bank, 59 Ga. 701, Sec. 98. Stallworth vs. Preslar, 34 Ala. 505, Sec. 286. Stack vs. Beach, 74 Ind. 572, See. 126, 132. Stark vs. Eaney, 18 Gal. 622, Sec. 157. Staley vs. Howard, 7 Mo. App. 377, Sec. 204. Stanton vs. State, 82 Ind. 463, Sec. 234. Stahl vs. Berger, 10 Serg. & Rawle 170, Sec. 20. Steel vs. Auditor General, 111 Mich. 381, Sec. 13. vs. Dixon, 17 Ch. Div. 825, Sec. 291. Steele vs. Crider, 61 Fed. Hep. 484, Sec. 199. vs. Graves, 68 Ala. 21, Sec. 100. vs. Holt, 75 N. C. 188, Sec. 156. vs. Mealing, 24 Ala. 285. Sec. 291. Stephenson vs. Sinclair, 14 Tex. Civ. App. 133, Sec. 181. Stevenson vs. Hoy, 43 Pa. St. 191, Sec. 22. Stevens vs. Parsons, 80 Me. 351, Sec. 133. vs. Tucker, 87 Ind. 109, Sec. 280, 290. vs. Tuite, 104 Mass. 328, Sec. 231. Stephens vs. Miller, 3 Ky. L. Rep. 523, Sec. 199. vs. Shafer, 48 Wis. 54, Sec. 193. Stewart vs. Behm, 2 Watts 356, Sec. 104. vs. Chicago Ry. Co., 141 Ind. 55, See. 112. vs. Eddowes, L. R., 9 C. P. 211, Sec. 28. vs. Goulden, 52 Mich. 143, Sec. 290. vs. Parker, 55 Ga. 656, Sec. 94. vs. Ranney, 26 How. Pr. 279, Sec. 76. Steward vs. Welch, 84 Me. 308, Sec. 272. Stuart vs. Lancaster, 84 Va. 772, Sec. 85. vs. Liyesay, 4 W. Va. 45, See. 141. Stearns vs. Bates, 46 Conn. 306, Sec. 51, 272. vs. Irwin, 62 Ind. 558, Sec. 297. Stern vs. People, 102 111. 540, Sec. 108, 179. Sterns vs. Marks, 35 Barb. 565, Sec. 104. Steadman vs. Guthrie, 4 Met. (Ky.) 155, Sec. 57. Stetson & Post Mill Co. vs. McDonald, 5 Wash. 496, See. 149. fetetson vs. Bank, '2 0. S. 167, See. 191. vs. Moulton, 140 Mass. 597, See. 265. Stebbins vs. Niles, 21 Miss. 307, Sec. 198. Sternberg vs. State, 42 Ark. 127, Sec. 249. Stenhouse vs. Davis, 82 N. C. 432, Sec. 265. Stone vs. City of Augusta, 46 Me. 127, See. 186. vs. Dennison, 13 Pick. 1, Sec. 2-5. 646 TABLE OF CASES. (References are to sections.) Stone VS. Graves, 8 Mo. 148, See. 186. vs. Eoekefeller, 29 O. S. 625, Sec. 63. vs. Walker, 13 Gray 613, Sec. 37. vs. White, 8 Gray 589, Sec. 75. Stoner vs. Millikin, 85 111. 218, Sec. 108. Stoops vs. Wittier, 1 Mo. App. 420, See. 103. Stockton vs. Stockton, 40 Ind. 225, Sec. 114. Storm vs. United States, 94 U. S. 76, Sec. 140. Stout vs. Ennis, 28 Kan. 706, Sec. 165. Stout, In 're, 109 Fed. Rep. 794, Sec. 297. Stockmeyer vs. Oertling, 35 La. Ann. 467, Sec. 292. Stokes vs. Little, 65 111. App. 255, Sec. 265. vs. People, 63 111. 489, Sec. 246. Stockwell vs. Robinson, 9 Houst. (Del.) 313, Sec. 182. Stovall vs. Banks, 10 Wall. 583, Sec. 238. Stoll vs. Padley, 100 Mich. 404, Sec. 206. Storz vs. Finklestein, 48 Neb. 27, See. 220. Strouse vs. Eltihg, 110 Ala. 132, Sec. 46. Strange vs. Lee, 3 Bast. 484, Sec. 52. Straey vs. Bank of England, 6 Bing. 754, See. 93. Strong vs. Foster, 17 C. B. 201, Sec. 101. vs. Eiker, 16 Vt. 555, Sec. 129.^ Stroop vs. McKenzie, 38 Tex. 132, Sec. 112. Street vs. Chicago Co., 157 111. 605, Sec. 298. Strain vs. Babb, 30 S. C. 342, Sec. 176. Strunk vs. Ochletree, 11 la. 158, Sec. 181. St. Albans Bank vs. Dillon, 30 Vt. 122, See. 104. St. Francis Mill vs. Sugg, 83 Mo. 476, Sec. 276. St. Louis vs. Von Puhl, 133 Mo. 561, Sec. 149. St. Louis Brewing Assn. vs. Hayes, 71 Fed. Rep. 110, Sec. 73. St. Louis L. & D. Ry. Co. vs. Wilder, 17 Kan. 239, Sec. 198. St. Louis Smelting Co. vs. Wyman, 22 Fed. Rep. 184, Sec. 205. St. Paul & Duluth R. Co. vs. Blackmar, 44 Minn. 514, Sec. 49. St. Paul vs. Leek, 57 Minn. 87, Sec. 117. Stillman vs. Northup, 109 N. Y. 473, Sec. 51. Stinson vs. Brennan, 1 Oheves Law (S. C.) 15 Sec. 303. Stillings vs. Porter, 22 Kan. 17, Sec. 200. Stirling vs. Forrester, 3 Bligh. 590, Sec. 296. Sturges vs. Circleville Bank, 11 O. S. 153, Sec. 58. Sturtevant vs. Randall, 53 Me. 149, Sec. 129, 132. Stubbins vs. Mitchell, 82 Ky. 535, Sec. 286, 299. Stults vs. Zahn, 117 Ind. 297, See. 205. Suman vs. Imnan,. 6 Mo. App. 384, Sec. 44. Sullivan vs. Hugely, 48 Ga. 486, Sec. 82. vs. State, 59 Ark. 47, Sec. 99. vs. Williams, 43 S. C. 489, Sec. 218. TABLE OF CASES. 647' (References are to sections.) Summerhill vs. Tapp, 52 Ala. 227, Sec. 99. vs. Trapp, 48 Ala. 363, Sec. 100. Susquehanna Bank Co. vs. Evans, 4 Wash. (C. C.) 480, Sec. 126, Susquehanna Valley Bank vs. Loomis, 85 N. Y. 207, Sec. 134. Supreme Council Catholic Knights vs. Fidelity & Casualty Co., 63 Fed. Rep. 48, Sec. 141, 147, 255. Supreme Council vs. Boyle, 15 Ind. App. 342, Sec. 207. Sutherland vs. Carr, 85 N. Y. 105, Sec. 164, 180. vs. Phelps, 22 111. 92, Sec. 203. Supervisors Lauderdale vs. Alford, 65 Miss. 63, See. 173. Supervisors vs. Bristol, 99 N. Y. 316, Sec. 101. vs. Otis, 62 N. Y. 88, Sec. 179. Succession of Simonds, 26 La. Ann. 319, Sec. 203. Sumpter vs. Wilson, 1 Ind. 144, Sec. 216. Suppiger vs. Gruaz, 137 111. 216, Sec. 232. Sublett vs. McKinney, 19 Tex. 438, Sec. 264. Sweet vs. Jeffries, 48 Mo. 279, See. 265. vs. Lee, 3 Man. & G. 452, Sec. 26. Sweeney vs. Easter, 1 Wall. 166, Sec. 125. Switzer vs. Baker, 95 Cal. 539, Sec. 58. vs. Skiles, 8 111. 529, Sec. 46. Swift vs. Beers, 3 Deuio 70, S«6. 103. -~ vs. Plessner, 39 Mich. 178, Sec. 225. Swisher vs. McWhinney, 64 0. S. 343, Sec. 241. Swartwout vs. Payne, 19 Johns. 295, Sec. 97. Swan vs. Gray, 44 Miss. 393, Sec. 166. vs. Hill, 155 V. S. 394, Sec. 198. vs. Smith, 57 Miss. 548, See. 266, '268. vs. Timmons, 81 Ind. 243, Sec. 212. Swain vs. Barber, 29 Vt. 292, Sec. 294. Swofford Bros. vs. Livingston, 65 Pac. Rep. 413, See. 203. Sylvester vs. Downer, 20 Vt. 355, Sec. 8. 68. Taylor vs. Alexander, 6 O. 144, Sec. 190. vs. Allen, 40 Minn. 433, Sec. 46. vs. Binney, 7 Mass. 481, Sec. 124. vs. Farmers' Bank of Ky., 87 Ky. 398, Sec. 272. vs. Glaser, 2 Serg. & Rawle 502, Sec. 152. vs. Higgins, 3 East. 169, See. 299. vs. Jeter, 23 Mo. 244, Sec. 98. vs. McClung's Ex., 2 Houst. (Del.) 24, Sec. 52, 66. vs. Mygatt, 26 Conn. 184, Sec. 153, 235. vs. Reynolds, 53 Cal. 686, Sec. 286. vs. Ross, 3 Yerg. 330, Sec. 27. vs. Smith, 116 N. C. 531, See. 49. 648 TABLE OF CASES. (References are to sections.) Taylor vs. Sullivan, 45 Minn. 309, Sec. 171. vs. Taintor, 16 Wall. 371, Sec. 249. vs. Taylor, 12 Lea (Tenn.) 714, Sec. 74. vs. Wetmore, 10 0. 491, Sec. 52. vs. Wightman, 51 Iowa 411, Sec. 16. Taylor County vs. King et al., 73 Iowa 153, Sec. 15, 109. Taussig et al. vs. Eeid et al., 145 III. 488, Sec. 18, 68. Taunton Bank vs. Richardson, 5 Pick. 436, Sec. 126. Talbot vs. Gay, 18 Pick. 534, Sec. 67. Talcott vs. Henderson, 31 0. S. 162, Sec. 110. Tatlock vs. Smith, 6 Bing. 339, Sec. 93. Tapley vs. Goodsell, 102 Mass. 176, 182, See. 219. vs. Martin, 116 Mass. 275, Sec. 106. Tabor vs. Claris, 15 Col. 434, Sec. 214. vs. Miles, 5 Col. App. 127, Sec. 129. Tate vs. Booe, 9 Ind. 13, Sec. 153. vs. Winfree, 37 S. E. (W. V'a.) 956, Sec. 279. Tarpey vs. Sharp, 12 Utah 383, Sec. 205. Tatum vs. Tatum, 1 Ired. Eq. (N. C.) 113, Sec. 265. Tarr vs. Ravenscroft, 12 Grat. 642, Sec. 288, 290. Temple vs. Baker, 125 Pa. 634, Sec. 10, 129, 132. Templeton vs. Shakley, 107 Pa. 370, Sec. 98. Tessier vs. Crowley, 17 Neb. 207, Sec. 12. Teeter vs. Pierce, 11 B. Mon. 399, Sec. 291. Teeters vs. Lambon, 43 0. S. 144, Sec. 42. Teaflf vs. Ross, 1 O. S. 469, Sec. 99, 274. Tenney vs. Prince, 4 Pick. 385, Sec. 130, 131. Tevis vs. Randell, 6 Cal. 632, Sec. 164. Teel vs. Tice, 14 N. J. L. 444, Sec. 203, 204. Texas Trunk Ry. vs. Jackson, 85 Tex. 605, Sec. 203. Terrell vs. Ingersoll, 78 Tenn. 77, Sec. 213. Ten Eyok vs. Holmes, 3 Sandf. Ch. 428, Sec. 272. vs. Sayer, 76 Hun 37, Sec. 214. Tebo vs. Betancourt, 73 Miss. 868, Sec. 225. Teberg vs. Swenson, 32 Kan. 224, Sec. 296. Thomas vs. Bank, 40 Neb. 501, Sec. 11. vs. Bleakie, 136 Mass. 568, Sec. 145. vs. Burrus, 23 Miss. 550, Sec. 19. vs. Carter, 63 Vt. 609, Sec. 299. vs. Churchill, 48 Neb. 266, Sec. 46. vs. Cleveland, 33 Mo. 126, Sec. 98. vs. Cook, 8 Barn. & Ores. 728, Sec. 32, 282, 284. vs. Hinkley, 19 Neb. 324, Sec. 21. vs. Kinkead, 55 Ark. 503, Sec. 187. vs. Markmann, 43 Neb. 823, Sec. 181, 194. vs. McDonald, 77 Iowa 299, Sec. 214. VS. Steele, 22 Wis. 207, Sec. 163. TABLE OF CASES. 649 (References are to sections.) Thomas vs. Stetson, 59 Me. 229, See. 81. vs. Williams, 10 Barn. & Cr. 664, Sec. 16. vs. Wright, 98 N. C. 272, See. 58. Thomason vs. Clark, 31 111. App. 404, Sec. 114. vs. Wade, 72 Ga. 160, See. 266. Thompson vs. Board, 30 111. 99, See. 184. vs. Bowne, 39 N. J. L. 2, See. 115. vs. Dickerson, 22 Iowa 360, See. 175. vs. Hall, 16 Ala. 204, Sec. 27. vs. Jackson, 93 Iowa 376, Sec. 185. vs. Lack, 3 0. B. R. 540, Sec. 114. ' vs. Massie, 41 O. S. 307, See. 20. vs. Prouty, 27 Vt. 14, Sec. 146. vs. Robinson, 34 Ark. 44, See. 84, 115. vs. State, 37 Miss. 518, See. 171. vs. Taylor, 72 N. Y. 32, Sec. 115, 300. vs. Watson, 10 Yerg. (Tenn.) 362, See. 115, 116. Thorn vs. Pinkham, 84 Me. 101, Sec. 118. Thome vs. Travellers' Ins. Co., 80 Pa. St. 15, See. 19, 156. Thorington vs. Smith, 8 Wall. 1, Sec. 49. Thornton vs. Thornton, 63 N. C. 211, Sec. 99. Thornburgh vs. Madren, 33 la. 380, Sec. 113. Third Nat. Bank vs. Owen, 101 Mo. 558, Sec. 15, 106, 145, 150. vs. Shields, 55 Hun 274, See. 136. Thurber vs. Corbin, 51 Barb. 215, Sec. 23. Thurston vs. James, 6 R. I. 103, Sec. 86. Thayer vs. Clark, 48 Barb. 243, See. 234. vs. Daniels, 110 Mass. 345, See. 297, 304. vs. King, 31 Hun 437, Sec. 83. vs. Luce, 22 O. S. 62, See. 29. Thalheimer vs. Crow, 13 Col. 397, See. 117, 201. Thrall vs. Mead, 40 Vt. 540, See. 195. The Hattie M. Spraker, 29 Fed. Rep. 457, Sec. 268. Tinsley vs. Kirby, 17 S. C. 1, See. 19. Tighe vs. Morrison, 116 N. Y. 263, See. 31. Tidioute Sav. Bank vs. Libbey, 101 Wis. 193, See. 51. Tisehler vs. Hofheimer, 83 Va. 35, Sec. 71. Titus vs. Durkee, 12 Up. Can. (C. P.) 367, Sec. 73. Tidball vs. Halley, 48 Gal. 610, See. 74, 109. Ticonie Bank vs. Smiley, 27 Me. 225, Sec. 124. Tieman vs. Haw, 49 la. 312, Sec. 181. Tillinghast vs. Merrill, 151 N. Y. 135, Sec. 183. Tillitson vs. Rose, 11 Met. 299, See. 297. Titeomb vs. McAllister, 81 Me. 399, Sec. 291. Toles vs. Adee, 84 N. Y. 222, Sec. 21, 111. Towle vs. Nat. Guardian Assurance Society, 3 Giflf. 42, Sec. 110. Townsend vs. Hargrave, 118 Mass. 325, Sec. 28, 47. 650 TABLE OF CASES. (References are to sections.) Townsend vs. Hubbard, 4 Hill (N. Y.) 351, See. 160. vs. Whitney, 75 N. Y. 425, Sec. 264, 266. Townsend Nat. Bank vs. Jones, 151 Mass. 454, See. 223. Todd vs. Greenwood School Dist., 40 Mich. 294, Sec. 81. vs. Tobey, 29 Me. Sl9, Sec. 43. Tolman Co. vs. Means, 52 Mo. App. 385, Sec. 66. Toomer vs. Dickerson, 37 6a. 428, Sec. 274. vs. Rutland, 57 Ala. 379, Sec. 74. Tobin Canning Co. vs. Fraser, 81 Tex. 407, Sec. 82. Tobias vs. Rogers, 13 N. Y. 59, Sec. 294. Towns vs. Riddle, 2 Ala. 694, See. 114. Towers vs. Moor, 2 Vern. 98, Sec. 119. Town of Barnet vs. Abbott, 53 Vt. 120, Sec. 152. Tompkins vs. Catawba Mills, 82 Fed. Rep. 780, Sec. 272. \s.. Little Rock & Ft. S. Ry., 15 Fed. Rep. 6, Sec. 121. Topping vs. Windley, 99 N. C. 4, Sec. 176. Torp vs. Gulseth, 37 Minn. 135, Sec. 261, 265. Tousey vs. State, 8 Tex. 173, Sec. 248. Toussaint vs. Martinnant, 2 T. R. 100, See. 296. Toronto Bank vs. Hunter, 4 Bosw. (N. Y.) 646, Sec. 268. Tom vs. Goodrich, 2 Johns. 213, Sec. 296. Travis vs. Travis, 48 Hun 343, Sec. 13, 198. Travers vs. Dorr', 60 Minn. 173, Sec. 90. Trader vs. Sale, 18 O. C. C. 814, Sec. 203. Traders' Ins. Co. vs. Herber, 67 Minn. 106, Sec. 106. Traders' Nat. Bank vs. Parker, 130 N. Y. 415, See. 57. Travellers' Insurance Co. vs. Weber, 4 N. D. 135, Sec. 199. Trammell vs. Swan, 25 Tex. 473, Sec. 15, 105. Trapnall vs. McAfee, 60 Ky. 34, Sec. 225. Trustees vs. Arnold, 58 111. App. 103, Sec. 173. vs. Sheik, 119 111. 579, See. 166, 167, vs. Smith, 88 111. 181, Sec. 173. vs. Southard, 31 111. App. 359, Sec. 114. Trustees of Dartmouth College vs. Woodward, 4 Wheat. 518, 694, Sec. 163. Trustees of Presbyterian Board vs. Gilliford, 139 Ind. 524, Sec. 96. Trust Co. vs. First Nat. Bank, 101 U. S. 70, See. 135. Truesdell vs. Combs, 33 O. S. 186, Sec. 185. Trotter vs. Strong, 63 111. 272, Sec, 102, 136. Trogden vs. Cleveland Stone Co., 53 111. App. 206, Sec. 204. Trimble vs. Keer-Rountree Mer. Co., 56 Mo. App. 683, Sec. 231. vs. Thorne, 16 Johns. 152, Sec. 116. Treuttel vs. Barandon, 8 Taunt. 100, Sec. 125. Troup vs. Smith's Executors, 20 Johns. 33, Sec. 159. Trainor vs. Board of Auditors, 89 Mich. 162, Sec. 163. Tracy vs. Goodwin, 5 Allen 409, Sec. 194. Treweek vs. Howard, 105 Cal. 434, Sec. 235. Treasurer of Vermont vs. Merrill, 14 Vt. 64, See. 246. TABLE OF OASES. 651 (References are to sections.) Trasch, In re, 31 Pac. 755, Sec. 269. Tuck vs. Calvert, 33 Md. 209, Sec. 265. Tucker et al. vs. State, etc., 11 Md. 322, Sec. 19, 199. Tucker vs. White, 5 Allen 322, Sec. 223. Tuckerman vs. French, 7 Me. 115, Sec. 66. Tuttle vs. Bartholomew, 12 Met. 452, Sec. 51, 135. vs. Northrop, 44 O. S. 178, Sec. 241. TumbuU vs. Brock, 31 0. S. 649, Sec. 82. vs. Boyer, 40 N. Y. 456, Sec. 121. Turnpr vs. Collier, 4 Heisk. (Tenn.) 89, Sec. 181. vs. Davies, 2 Esp. 478, See. 284. vs. Iron Chief Mining Co., 74 Wis. 355, Sec. 121. vs. Killian, 12 Neb. 580, Sec. 181. vs. Sisson, 137 Mass. 191, See. 181. vs. State, 14 Tex. App. 168, Sec. 248. vs. Thorn, 89 Va. 745, See. 292. Turck vs. Marshall Silver Mining Co., 8 Col. 113, Sec. 153. Tuxbury vs. Miller, 19 Johns. 311, Sec. 156. Tulburt vs. Hollar, 102 N. C. 406, Sec. 240. Twcddle vs. Atkinson, 1 Best. & S. M. 393, See. 160. Twitty vs. Houser, 7 S. C. 153, Sec. 235. Twombly vs. Cassidy, 82 N. Y. 159, Sec. 261. Tyler vs. Trustees, 14 Ore. 485, Sec. 117. vs. Waddingham, 58 Conn. 375, Sec. 61. Tyson vs. Sanderson, 45 Ala. 364, Sec. 155, 205. TjTce vs. Wilson, 9 Gratt. (Va.) 59, Sec. 174. Tynburg vs. Cohen, 67 Tex. 220, Sec. 217, 220. United States vs. Adams, 24 Fed. Kep. 348, Sec. 180. vs. AUsbury, 4 Wall. 186, Sec. 194. vs. Ambrose, 2 Fed. Rep. 552, Sec. 21. vs. Backland, 33 Fed. Rep. 156, Sec. 91. vs. Broadhead, 127 U. S. 212, Sec. 70, 155. vs. Bradley, 10 Peters 343, See. 164. vs. Burgdorf, 13 App. D. C. 506, Sec. 149. ■ vs. Boyd, 5 How. 29, See. 191. vs. Curtis, 100 U. S. 119, Sec. 70. vs. Dashiel, 4 Wall. 182, Sec. 184. vs. Edwards, 1 McLean 467, Sec. 163. vs. Evans, 2 Fed. Rep. 147, Sec. 248. vs. Hartwell, 6 Wall. 385, Sec. 163, 165. vs. Hudson, 65 Fed. Rep. 68, Sec. 245. vs. Jones, 36 Fed. Rep. 759, See. 184. vs. Keiver, 56 Fed. Rep. 422, Sec. 246. vs. Linn, 15 Peters 290, Sec. 164. 652 TABLE OF CASES. (References are to sections.) United States vs. Martin, 17 Fed. Eep. 150, Sec. 165. vs. Mason, 2 Bond 183, Sec. 164. vs. McCartney, 1 Fed. Rep. 104, Sec. 170. vs. McClane, 74 Fed. Rep. 153, Sec. 176. vs. Mosby, 133 U. S. 286, Sec. 177. vs. Morgan, 28 Fed. Rep. 48, Sec. 180. vs. Morgan, 11 How. 154, Sec. 184. vs. Mynderse, 11 Blatch. 1, Sec. 164. vs. O'Neill, 19 Fed. Eep. 567, Sec. 20. vs. Price, 9 How. 84, See. 119. vs. Poulson, 30 Fed. Rep. 231, Sec. 155. vs. Powell, 14 Wall. 493, See. 170. vs. Prescott, 3 How. 578, See. 184. vs. Rogers, 28 Fed. Rep. 607, Sec. 164. vs. Ryder, 110 U. S. 729, Sec. 296. vs. Simmons, 47 Fed. Rep. 575, Sec. 296. vs. Thomas, 15 Wall. 337, Sec. 184. vs. Walker, 109 U. S. 258, Sec- 240. vs. Wallace, 46 Fed. Rep. 569, Sec. 245. United States Bank vs. Danridge, 12 Wheat. 69, Sec. 190. United States National Surety Co., 34 C. 0. A. 526, Sec. 149. Union Bank vs. Coster, 3 N. Y. 203, Sec. 51, 66. vs. Forrest, 3 Craneh 0. C. 218, See. 148. vs. Govan, 18 Miss. 333, Sec. 99. vs. Willis, 8 Met. 504, Sec. 128. Union National Bank vs. 1st Nat. Bank, 45 O. S. 236, Sec. 58. vs. Cooley, 27 La. Ann. 202, Sec. 98, 123. vs. Rich, 106 Mich. 319, Sec. 272. Union Mutual Life Ins. Co. vs. Hanford, 27 Fed. Rep. 588, Sec. 23, 90. Union Bank of Maryland vs. Ridgeley, 1 Har. & G. (Md.) 324, Sec. 141, 147. Union Dime Savings Institute vs. Neppert, 21 N. Y. S. R. 723, See. 150. Union Township vs. Smith, 39 Iowa 9, Sec. 184. Ulen vs. Kittredge, 7 Mass. 233, Sec. 22. Uhler vs. Applegate, 26 Pa. 140, Sec. 82. Ulrich vs. Farrington Mfg. Co., 69 Wis. 213, Sec. 198. UUery vs. Kokolt, 61 Pac. Rep. (Col. App.) 189, See. 198. Ulster Co. Savings Inst. vs. Young, 161 N. Y. 23, Sec. 255. Underwood vs. Campbell, 14 N. H. 393, Sec. 27. vs. Robinson, 106 Mass. 296, See. 189. Underbill vs. Spencer, 25 Kan. 71, Sec. 214. Ueberroth vs. Riegel, 71 Pa. St. 280, Sec. 36. Updegraft vs. Edwards, 45 Iowa 513, Sec. 272. Uptmoor vs. Young, 57 Ark. 528, Sec. 297. Umsted vs. Buskirk, 17 0. S. 114, Sec. 283. U. S. Mortgage Co. vs. Gross, 93 111. 483, Sec. 272. TABLE OF CASES. 6 58 (References are to sections.) V Van Deusen vs. Hayward, 17 Wend. 67, Sec. 198. Van Doren vs. Tjader, 1 Nev. 322, Sec. 8, 129. Van Patton & Marks vs. Beals & Hammer, 46 Iowa 62, Sec. 11. Van Petten vs. Richardson, 68 Mo. 379, Sec. 300. Van Pelt vs. Littler, 14 Cal. 194, Sec. 181. Van Slyke vs. Bush, 123 N. Y. 47, Sec. 244. vs. Trempealeau Ins. Co., 39 Wis. 390, Sec. 165. Van Valkenberg vs. Smith, 60 Me. 97, Sec. 140. Van Wart vs. Carpenter, 21 Up. Can. (Q. B.) 320, Sec. 51. Van Winkle vs. Johnson, 11 Ore. 469, Sec. 288, 300. Vandiver vs. Pollak, 107 Ala. 547, Sec. 291. Vandyke vs. Weil, 18 Wis. 277, Sec. 202. Vanzant vs. Arnold, 31 Ga. 210, Sec. 135. Vaughn vs. Smith, 65 Iowa 579, Sec. 41. Vaughan vs. Halliday, 9 Ch. App. 561, Sec. 273. Vanover vs. Thompson, 49 N. C. 485, Sec. 156. Vass vs. Riddick, 89 N. C. 6, Sec. 108, 109. Varley vs. Title Guarantee & Trust Co., 60 111.' App. 565, Sec. 129. Vail vs. Foster, 4 N. Y. 312, Sec. 272. Vance vs. Lancaster, 3 Haywood (Tenn. ) 130, Sec. 300. Veaeh vs. Rice, 131 U. S. 293, Sec. 108. Vert vs. Voss, 74 Ind. 566, See. 262. Vinyard et al. vs. Barnes, 124 111. 346, Sec. 17. Vindquest vs. Perky, 16 Neb. 284, Sec. 28. Vinal vs. Richardson, 13 Allen 532, Sec. 67. Vinton vs. Mansfield, 48 Conn. 474, Sec. 232. Vineenc vs. Logsdon, 17 Oregon 284, Sec. 268. Violett vs. Patton, 5 Cranch (U. S.) 142, Sec. 27. Vielie vs. Osgood, 8 Barb. 130, Sec. 30, 140. Villars vs. Palmer, 67 111. 204,. Sec. 95. Virden vs. Ellsworth, 15 Ind. 144, Sec. 117. Vivian vs. State, 16 Tex. App. 262, Sec. 247. Vias vs. Comm., 7 Ky. L. Rep. 742, Sec. 248. Vliet vs. Wyckoff, 42 N. J. Eq. 642, Sec. 286. Vogel vs. Melms, 31 Wis. 306, Sec. 34. Voss vs. German Bank, 83 111. 599, Sec. 101, 274. Vurpillat vs. Zehner, 2 Ind. App. 397, Sec. 222. W Watson vs. Chesire, 18 la. 202, Sec. 124. vs. Hurt, 6 Gratt. 633, Sec. 8, 129. vs. Jacobs, 29 Vt. 169, Sec. 38. vs. Johnson, 13 Ky. L. Rep. 336, Sec. 207. vs. Pague, 42 la. 582, Sec. 97. vs. Watson, 9 Conn. 140, Sec. 189. 654: TABLE OP CASES. (References are to sections.) Watwn vs. Wilcox, 39 Wis. 643, Sec. 276. Waterbury vs. Andrews, 67 Mich. 281, Sec. 15, 105. • Waterman vs. Clark, 76 111. 428, See. H7. vs. Dockray, 78 Me. 139, Sec. 240. vs. Vose, 43 Me. 504, Sec. 72. Watertown Fire Ins. Co. vs. Simmons, 131 Mass. 85, Sec. 107. Waters vs. Melson, 112 N. C. 89, Sec. 180. vs. People, 4 Col. App. 97, Sec. 248. vs. Whittemore, 22 Barb. 593, Sec. 163. Walker, Admr., vs. Lathrop, 6 Iowa 516, Sec. 301. Walker, In re, L. R., 1 Ch. 621 (1892), Sec. 273. Walker vs. Forbes, 25 Ala. 139, Sec. 66, 68. vs. Gregory, 36 Ala. 180, Sec. 156. vs. Holtzelaw et al., 57 S. C. 459, Sec. 13, 253. vs. Pritehard, 34 111. App. 65, Sec. 210. vs. Richards, 41 N. H. 388, Sec. 36. vs. Simpson, 7 Watts. & Serg. 83, Sec. 276. Walton vs. Beveling, 61 111. 201, See. 212. vs. Mascall, 13 M. & -W. 452, Sec. 51, 67. Walden Nat. Bank vs. Birch, 130 N. Y. 221, Sec. 148. Walsh vs. Bailie, 10 Johns. 180, Sec. 52. vs. Miller, 51 O. S. 462, Sec. 114, 244. Wallace vs. Exchange Bank, 126 Ind. 265, Sec. 150. vs. Finberg, 46 Tex. 35, See. 217. vs. Hudson, 37 Tex. 456, See. 112. vs. Insurance Co., 41 Fed. Rep. 742, Sec. 255. vs. Jewell, 21 O. S. 163, Sec. 75. vs. York, 45 Iowa 181, Sec. 214. Wallis vs. Dilly, 7 Md. 237, Sec. 161. vs. Keeney, 88 111. 370, Sec. 153. vs. Swinburne, 1 Welsh. H. & G. 203, Sec. 286. Walz vs. Alback, 37 Md. 404, Sec. 129. Waller vs. Pittman, 1 N. C. 237, Sec. 199. Wallerstein vs. Am. Surety Co., 15 N. Y. Suppl. 954, Sec. 204. Waldrip vs. Black, 74 Ol. 409, Sec. 265, 299. Washington vs. Hosp, 43 Kan. 324, Sec. 190. vs. Norwood, 128 Ala. 383, Sec. 286. vs. Tait, 3 Humph. (Tenn.) 543, Sec. 115. Washington Ice Co. vs. Webster, 125 U. S. 426, Sec. 19, 231. vs. Webster, 62 Me. 341, Sec. 29. Washington Co. Ins. Co. vs. Colton, 26 Conn. 42, Sec. 152. Wash vs. Lackland, 8 Mo. App. 122, See. 214. . Wain vs. Warlters, 5 East. 16, Sec. 25, 26, 27. Wainwright vs. Straw, 15 Vt. 215, Sec. 37. Warner vs. Benjamin, 89 Wis. 290, Sec. 110. vs. Beardsley, 8 Wend. 198, See. 116. VS. Cameron, 64 Mich. 185, Sec. 202. TABLE OF CASES. 655 (References are to sections.) Warner vs. Morrison, 3 Allen 566, See. 292. vs. Willoughby, 60 Conn. 468, See. 41. Warren vs. Dickson, 27 111. 115, See. 46. vs. Hayzlett, 45 Iowa 235, See. 261. Warren et al. vs. Branch et al., 15 W. Va. 21, Sec. 15. Warden vs. Ryan, 37 Mo. App. 466, Sec. 73. Ward, Appeal of, 100 Pa. 289, Sec. 266. Ward vs. Chum, 18 Gratt. 801, Sec. 74, 109. ■-^ vs. Hackett, 30 Minn. 150, Sec. 75, 109. vs. National Bank of New Zealand, 8 New Zealand, L. R., 10, See. 262. vs. Stahl, 81 N. Y. 406, See. 180. vs. Wick, 17 0. S. 159, Sec. 84. vs. Whitney, 8 N. Y. 442, Sec. 216. Warfield vs. Brand, 76 Ky. 77, See. 235. Ware vs. Allen, 128 U. S. 590, Sec. 145. Wadsworth vs. Allen, 8 Gratt. 174, See. 66, 96. vs. O'Donnell, 7 Ky. L. Rep. 837, Sec. 213. vs. Smith, 43 Iowa 439, See. 49. Wade vs. Crelghton, 25 Ore. 455, Sec. 129. vs. Staunton, 5 How. (Miss.) 631, Sec. 86. Waddell vs. Bradway, 84 Ind. 537, See. 229. vs. Moore, 24 N. C. 261, Sec. 160. Watriss vs. Pierce, 32 N. H. 560, See. 77, 145. Watts vs. Shuttleworth, 5 Hurl. & Nor. 235, Sec. 77, 98. Way vs. Butterworth, 108 Mass. 509, Sec. 8, 129. vs. Hearn, 11 C. B. (N. S.) 774, Sec. 88. Wayne vs. Bank, 52 Pa. 343, Sec. 106. vs. Commercial Nat. Bank, 52 Pa. 343, Sec. 159. Wayne Co. vs. Cardwell, 73 Ind. 555, Sec. 108. Waymire vs. Waymire, 141 Ind. 164, Sec. 45. Waughop vs. Bartlett, 165 111. 124, Sec. 95. Waggener vs. Dyer, 11 Leigh (Va.) 384, Sec. 114. Wagner vs. Stocking, 22 0. S. 297, Sec. 117. Wagenseller vs. Prettyman, 7 111. App. 192, Sec. 288. Walmesly vs. Booth, Barn. Ch. 478, Sec. 163. Wapello vs. Bigham, 10 Iowa 39, Sec. 173. W. C. & A. Railroad Co. vs. Ling, 18 S. C. 116, See. 15. Wartmau vs. Yost, 22 Gratt. 595, Sec. 117. Wendlandt vs. Sohre, 37 Minn. 162, Sec. 5. Welsh vs. Ebersole, 75 Va. 656, Sec. 6. Welch vs. Seymour, 28 Conn. 387, See. 147, 171. Wells vs. Monihan, 129 N. Y. 161, See. 46. vs. Mann, 45 N. Y. 327, See. 116. vs. Miller, 66 N. Y. 255, See. 279. Wells, Fargo & Co. vs. Walker, 9 N. M. 456, Sec. 106. Weldin vs. Porter, 4 Houst. 236, Sec. 27. 656 TABLE OF CASES. (References are to sections.) f Weed vs. Bentley, 6 Hill (N. Y.) 56, Sec. 15, 105. Weed Sew. Mach. Co. vs. Jeudevine, 39 Mich. 590, Sec. 141. vs. Maxwell, 63 Mo. 486. Sec. 104. Weed et al. vs. Chambers, 40 Up. Can. (Q. B.) 1, See. 55. Weir Plow Co. vs. Walmsly, 110 Ind. 242, Sec. 17, 55, 73. Weisel vs. Spence, 59 Wis. 301, Sec. 41. Weik vs. Pugh, 92 Ind. 382, See. 98. Weinbrinner vs. Weisiger, 3 T. B. Mon. (Ky.) 35, Sec. 156. Weintz vs. Kramer, 44 La. Ann. 35, Sec. 188. Weidemeyer vs. Landon, 66 Mo. App. 520, See. 286. Wegner vs. The State, 28 Tex. App. 419, Sec. 20, 246. West vs. Bank, 19 Vt. 403, See. 269. vs. Brison, 99 Mo. 684, See. 113. vs. Carter, 129 111. 249, Sec. 207. vs. Chasten, 12 Fla. 315, Sec. 23, 115. vs. Rutland Bank, 19 Vt. 403, Sec. 278. Western N. Y. Life Ins. Co. vs. Clinton, 66 N. Y. 326, Sec. 15. Western Bldg. & Loan Assn. vs. Fitzmaurice, 7 Mo. App. 283, Sec. 151. Westmoreland vs. Westmoreland, 92 Ga. 233, Sec. 151. Westerman vs. Means, 12 Pa. 97, Sec. 153. Westervelt vs. Frost, 1 Abb. Pr. (N. Y.) 74, Sec. 157. Westbrook vs. Miller, 56 Mich. 148, Sec. 165. Weston vs. Chamberlin, 7 Gush. 404, Sec. 136. Wessel vs. Glenn, 108 Pa. 104, Sec. 109. Wesley Church vs. Moore, 10 Pa. 273, Sec. 278, 296. Webb vs. Anspach, 3 0. S. 522, Sec. 180. vs. Dickenson, 11 Wend. 62, See. 96. vs. Gross, 79 Me. 224, Sec. 234. vs. Hawkins Lumber Co., 101 Ala. 630, Sec. 36. Webb Co. vs. Gonzales, 69 Tex. 455, Sec. 189. Webbe vs. Romona Oolitic Stone Co., 58 111. App. 226, Sec. 57. Weber vs. North, 51 Iowa 375, Sec. 234. Webster vs. Cobb, 17 111. 459, See. 131. vs. Washington Co., 26 Minn. 220, Sec. 190. Weare vs. Sawyer, 44 N. H. 198, Sec. 104. Weatherby vs. Shackleford, 37 Miss. 559, See. 213. Wetherwax vs. Paine, 2 Mich. 559, Sec. 129. Wertheimer vs. Howard, 30 Mo. 420, Sec. 186. Weaver vs. Shyrock, 6 Serg. & R. 262, Sec. 69, 119. Werner vs. Graley, 54 Kan. 383, Sec. 231. White's Adm. vs. Life Assn. of America, 63 Ala. 423, See. 6. White's Bank vs. Myles, 73 N. Y. 335, Sec. 59. White's Case, 6 Mod. 18, Sec. 163. White Sewing Mach. Co. vs. Dakin, 86 Mich. 581, Sec. 151. vs. Hines, 61 Mich. 423, See. 53. vs. Mullins, 41 Mich. 339, Sec. 150. TABLE OF CASES. 657 (References are to sections.) White vs. Banks, 21 Ala. 705, Sec. 279. vs. Bowman, 78 Tenn. 55, See. 161. vs. Duggan, 140 Mass. 18, Sec. 20, 74, 109. vs. Ditson, 140 Mass. 351, Sec. 235. vs. East Saginaw, 43 Mich. 567, Sec. 170. vs. Howd, 66 Conn. 264, Sec. 197. vs. Millek, 47 Ind. 385, Sec. 297. vs. Reed, 15 Conn. 457, Sec. 18, 50, 60. vs. State, 44 Ala. 409, Sec. 165. vs. Weatherbee, 126 Mass. 450, Sec. 19. vs. Walker, 31 111. 422, Sec. 68. Whitehead vs. Tulane, 11 La. Ann. 302, Sec. 210. Whiteside vs. Noyae Cottage Assn., 84 Hun 555, Sec. 214. Whitwoith vs. Carter, 43 Miss. 61, Sec. 104. vs. Tilman, 40 Miss. 76, Sec. 300. Whittemore vs. Wentworth, 76 Me. 20, Sec. 38. Whitney vs. Groot, 24 Wend. 82, Sec. 59, 66. Whiton vs. Mears, 11 Met. 563, Sec. 67, 68. Whitcher vs. James Hall, 5 Barn. & Cr. 269, See. 73, 79. Whitaker vs. Kirby, 54 Ga. 277, See. 113. vs.' Richards, 134 Pa. St. 191, See. 11, 109. Whitsell vs. Mebane, 64 N. C. 345, Sec. 141. Whitfield vs. Evans, 56 Miss. 488, Sec. 237. Whitridge vs. Durkee, 2 Md. Ch. 442, Sec. 115. Whitbeek vs. Ramsay's Estate, 74 111. App. 524, See. 265.. Wheeler vs. Hawkins, 116 Ind. 515, See. 265. vs. Mayfield, 31 Tex. 395, See. 51. vs. Meyer, 95 Mich. 36, Sec. 152. vs. McCabe, 47 How. Pr. (N. Y.) 283, Sec. 201. vs. Warner, 47 N. Y. 519, Sec. 121. Wheeler & Wilson Mfg. Co. vs. Brown, 65 Wis. 99, Sec. 150. Wheeling vs. Black, 25 W. Va. 266, Sec. 177. Wheat vs. Dingle, 32 S. C. 473, Sec. 269. vs. Kendall, 6 N. H. 504, Sec. 90. Whan vs. Irwin, 27 La. Ann. 706, Sec. 205. Whereatt vs. Ellis, 103 Wis. 348, See. 205. Williams vs. Ewing, 31 Ark. 229, Sec. 290, 293. vs. Gilchrist, 11 N. H. 535, See. 97. vs. Harrison, 11 S. C. 412, See. 11. vs. Leper, 3 Burrows 1886, See. 39. "^ — vs. Morris, 95 U. S. 456, Sec. 29. vs. Morton, 38 Me. 47, Sec. 172. vs. Owen, 13 Simons 597, Sec. 267. vs. Potter, 72 Ind. 354, Sec. 125. vs. Riehl, 127 Cal. 365, Sec. 291. vs. St. L. I. M. & S. Ry., 8 Mo. App. 135, Sec. 232. vs. Tipton, 5 Humph. (Tenn.) 66, Sec. 297. 658 TABLE OF CASES. (References are to sections.) Williams et al. vs. Boyd, 75 Ind. 286, Sec. 23, 90. vs. Perkins, 21 Ark. 18, Sec. 16. Williamson vs. Hall, 1 O. S. 190, Sec. 211. vs. Kexroat, 55 III. App. 116, Sec. 41. vs. Woodman, 73 Me. 163, See. 19. Wilkeson vs. Hood, 65 Mo. App. 491, Sec. 14. Wilkinson vs. Evans, L. R., 1 C. P. 407, Sec. 29. Wilkerson vs. Crescent Co., 64 Ark. 80, Sec. 107. Wills vs. Brown, 118 Mass. 137, Sec. 41. vs. Cutler, 61 N. H. 405, Sec. 39. vs. Eoss et al., 77 Ind. I, Sec. 17, 50. Willis vs. Chowning, 90 Tex. 617, Sec. 95. vs. Davis, 3 Minn. 17, Sec. 98. vs. Willis, 42 W. Va. 522, See. 295. Wilson vs. Brown, 13 N. J. Eq. 277, Sec. 276. vs. Crawford, 47 Iowa 469^ Sec. 297. vs. Glenn, 77 Ind. 585, See. 205. vs. Lloyd, 16 Law Eep. Eq. 60, Sec. 23. vs. McVey, 83 Ind. 108, Sec. 96. vs. Monticello, 85 Ind. 10, Sec. 106. vs. Marsh, 34 Vt. 352, Sec. 186. vs. Outlaw, Minor's Rep. 367, Sec. 215. vs. People, 19 Colo. 199, Sec. 183. vs. Root, 43 Ind. 486, Sec. 225. vs. Stewart, 24 O. S. 504, Sec. 291. vs. Wilson, 17 O. S. 150, Sec. 239. vs. Whitmore, 92 Hun 466, Sec. 149. vs. Wichita Co., 67 Tex. 647, Sec. 177, 183. Willson vs. McEvoy, 25 Cal. 169, Sec. 214. Wilcox vs. Campbell, 106 N. Y. 325, See. 23. vs. Draper, 12 Neb. 138, Sec. 66. vs. Fairhaven Bank, 7 Allen 270, Sec. 96, 262. Wilkins vs. Aikin, 17 Ves. Jr. 422, Sec. 196. vs. Bank, 31 O. S. 563, Sec. 117. vs. Carter, 84 Tex. 438, Sec. 66. Wiley vs. Baumgardner, 97 Ind. 66, Sec. 156. vs. Roberts, 27 Mo. 388, Sec. 29. Wile vs. Koch, 54 O. S. 608, Sec. 200. Wiles vs. Dudlow, L. R., 19 Eq. 198, Sec. 32, 282. Wilds vs. Attix, 4 Del. Ch. 253, Sec. 115. Wild vs. Howe, 74 Mo. 551, Sec. 83. Wilbur vs. Williams, 16 R. I. 242, Sec. 99. Wilmington R. R. Co. vs. Ling, 18 S. C. 116, See. 107. Wilcus vs. Kling, 87 111. 107, See. 153. Willard vs. Wood, 135 U. S. 309, Sec. 160. Wilkes-Barre vs. Rockafellow, 171 Pa. 177, Sec. 177. Wise vs. Miller, 45 O. S. 388, Sec. 66. TABLE OP CASES. 659 (References are to sections.) Wiser t8. Blachly, 1 Johns. Ch. 607, Sec. 17. Wiseman vs. Lynn, 39 Ind. 250, Sec. 229. vs. Thompson, 94 Iowa 607, Sec. 46. Winn vs. Albert, 2 Md. Ch. Dec. 169, Sec. 46. vs. Sanford, 145 Mass. 302, Sec. 104. Winnebago Paper Mills vs. Travis, 56 Minn. 480, Sec. 66. Winsted Bank vs. Webb, 39 N. Y. 325, Sec. 97. Winston vs. Yeargin, 50 Ala. 340, Sec. 98, 274. Windham Bank vs. Norton, 22 Conn. 213, Sec. 121. Winslow vs. Wood, 70 N. C. 430, Sec. 144. Wingate vs. Waite, 6 M. & W. 739, See. 185. Winship vs. Bass, 12 Mass. 199, Sec. 235. Winchester vs. Beardin, 10 Humph. (Tenn. ) 247, Sec. 271. Withers vs. Berry, 25 Kan. 373, See. 67. Witmer vs. Ellison, 71 III. 301, See. 83. Witkowski vs. Hern, 82 Cal. 604, Sec. 176. Wittieh vs. O'Neal, 22 Fla. 592, Sec. 214. Wiggins' Appeal, 100 Pa. 155, See. 104. Worcester Mechanics Savings Bank vs. Hill, 113 Mass. 25, Sec. 16, 57. Wood vs. Brown, 104 Fed. Rep. 203, Sec. 98. vs. Coman, 56 Ala. 283, Sec. 229. vs. Comm., 33 S. W. (Ky.) 729, Sec. 249. vs. Chetwood, 40 N. J. Eq. 64, Sec. 139, 141. vs. Fisk, 63 N. Y. 245, Sec. 69. vs. Farnell, 50 Ala. 546, Sec. 186. vs. Fulton, 2 Harr. & G. (Md.) 71, Sec. 205. vs. Hollander, 84 Tex. 394, See. 213. vs. Leland, 1 Met. 387, Sec. 296. vs. Midgley, 5 De G. M. & G. 41, Sec. 29. vs. Newkirk, 15 0. S. 295, See. 83. vs. Orford, 56 Cal. 157, See. 202. vs. Priestner, L. R., 2 Ex. 66, See. 59. vs. State, 66 Md. 61, Sec. 213. vs. Sherman, 71 Pa. 100, Sec. 63. vs. Steele, 6 Wall. 80, Sec. 73. " ' : Wood, In re, 1 De G. J. & S. 465, See. 276. Woodstock Bank vs. Downer, 27 Vt. 539, See. 61, 66. Woodburn vs. Carter, 50 Ind. 376, Sec. 83. Woodward vs. Paine, 15 Johns. 493, Sec. 185. vs. Pell, L. P., 4-Q. B. 55, Sec. 268. vs. Row, 2 Keb. 132, Sec. 120. Woodbridge vs. Brigham, 12 Mass. 403, Sec. 121. Woodhouse vs. Shepley, 2 Atk. 536, Sec. 156. Woodman vs. Mooring, 3 Dev. Law (N. C.) 237, Sec. 158. Woodruff vs. Scaife, 83 Ala. 152, Sec. 40. Wooddell vs. Bruffy, 25 W. Va. 465, See. 174. 660 TABLE OF CASES. (References are to sections.) Woolfolk vs. Plant, 46 Ga. 422, See. 84. vs. State, 10 Ind. 532, Sec. 249. Wooldridge vs. Norris, L. E., 6 Eq. Cases 410, Sec. 115, 298. Wolf vs. DesMoines & Ft. Dodge Ry. Co., 64 la. 380, See. 153. vs. Stix, 99 U. S. 1, Sec. 100. Wolfe vs. McClure, 79 111. 564, Sec. 157. Wolverton vs. Davis, 85 Va. 64, See. 282. Wolters vs. Henningsan, 114 Cal. 433, Sec. 283. Wolmershausen vs. Gullick, L. E., 2 Ch. Div. 1893, 514, Sec. 287, 294. Work vs. Cowhiek, 81 111. 317, Sec. 29. Worrall vs. Munn, 5 N. Y. 229, See. 30. Worth vs. Cox, 89 N. C. 44, Sec. 87. Worthy vs. Barrett, 63 N. C. 199, Sec. 163. vs. Brower, 93 N. C. 344, Sec. 234. Worden vs. Salter, 90 111. 160, See. 137. Wormley vs. Wormley, 96 111. 129, See. 198. Wormer vs. Waterloo Agricultural Works, 62 Iowa 699, Sec. 276. Womack vs. Paxton, 84 Va. 9, Sec. 115. Wright vs. Dannah, 2 Camp. 203, Sec. 22, vs. Dyer, 48 Mo. 525, Sec. 67. vs. Griffith, 121 Ind. 478, Sec. 59, 66. vs. Knepper, 1 Barr. (Pa.) 361, Sec. 100. vs. K.eyes, 103 Pa. 567, Sec. 216, 218. vs. Lang, 66 Ala. 389, Sec. 235. vs. Marvin, 59 Vt. 437, See. 229. vs. Morse, 9 Gray 337, Sec. 8. vs. Morley, 11 Ves. 22, Sec. 273. vs. Russell, 2 W. Bl. 934, Sec. 52. vs. Shorter, 56 Ga. 72, Sec. 67. vs. Stockton, 5 Leigh (Va.) 153, Sec. 114. vs. The State, 79 Ala. 252, Sec. 40. vs. Wright, 49 Mich. 624, Sec. 153. Wren vs. Pearce, 4 Smed. & M. 91, Sec. 27. Wronkow vs. Oakley, 133 N. Y. 505, Sec. 206. Wulflf vs. Jay, 7 L. E. Q. B. 756, Sec. 99, 274. Wurtz vs. Hart, 13 Iowa 515, Sec. 269. W. U. Tel. Co. vs. C. P. E. E. Co., 86 111. 246, See. 28. Wyman vs. Goodrich 26 Wis. 21, Sec. 42. vs. Jones, 58 Mo. App. 319, Sec. 23. vs. Eobinson, 73 Me. 384, Sec. 231. Wyuu va. Brooke, 5 Rawle (Pa.) 106, Sec. 300. vs. Wood, 97 Pa. 216, Sec. 43. Wybrants vs. Lutch 24 Tex. 309, Sec. 91. X Xander vs. Commonwealth, 102 Pa. 434, Sec. 151. TABLE OF CASES. 661 (References are to sections.) Y Yerby vs. Grigsby, 9 Leigh 387, See. 30. Young vs. Brown, 53 Wis. 333, See. 59. vs. Duhme, 61 Ky. 239, Sec. 237. vs. Lyons, 8 Gill. (Md.) 162, Sec. 290. vs. Morgan, 89 111. 199, Sec. 276. | vs. State, 7 Gill. & Johns. (Md.) 253, See. 166. vs. Skunk, 30 Minn. 503, Sec. 280. vs. Vough, 23 N. J. Eq. 325, See. 261. Young, Admr., vs. Patterson, 165 Pa. 423, Sec. 160. Youngs vs. McDonald, 67 N. Y. S. 375, See. 214. Yancey vs. Brown, 3 Sneed 89, Sec. 66. Yeary vs. Smith, 45 Tex. 56, Sec. 81. Yorkshire Railway Wagon Co. vs. Maclure, L. R., 19 Ch. 478, Sec. 104. Yates vs. Burch, 87 N. Y. 409, See. 205. vs. Mead, 68 Miss. 787, Sec. 268. Yale vs. Baum, 70 Miss. 225, Sec. 210. Yazoo & M. v. R. E. Co. vs. Adams, 78 Miss. 977, See. 210. Yarbaugh vs. Comm., 89 Ky. 151, Sec. 249. Yoder vs. Briggs, 3 Bibb (Ky.) 228, Sec. 296. Zane vs. Kennedy, 73 Pa. 182, Sec. 82. Zeigler vs. Henry, 77 Mich. 480, Sec. 205. Zechman vs. Haak, 85 Wis. 656, Sec. 216. ZollickofFer vs. Seth, 44 Md. 359, Sec. 290, 297. INDEX. (The references are to pages.) ABSENCE PROM JURISDICTION. as affecting right of contribution between co-sureties, 526. ABSOLUTE GUARANTY. defined, 73. distinguished from guaranty of collectibility, 6n. not necessary to pursue and exhaust the principal before pro- ceeding against an absolute guarantor, 73. notice of acceptance, not required if guaranty is absolute, 83. ACCEPTANCE. verbal acceptance is not within the Statute of Frauds where the acceptor holds funds of the drawer to meet the bill, 50. , suretyship undertaking not binding until accepted by the obligee, 234. retention of bond by obligee prima facie evidence of accept- ance, 234. view that accommodation acceptor is entitled by subrogation to securities in the hands of the holder, 485n. THotice of acceptance of guaranty, 77. when necessary to charge the guarantor, 77. whether contract of guaranty in respect to notice of acceptance is different from any other contract, 78. Federal Court rule as to notice of acceptance of guaranty, 88. rule in the State Courts, 83. not required if the guaranty is absolute, 83. not required if there is a consideration moving to the grantor from the creditor, 82. view that a letter of credit for future advances is a mere offer to contract which requires an acceptance to become binding, 84. ACCIDENT. sureties not liable for loss of trust funds by inevitable acci- dent, 246. mutilation of bond by accident, not a defense to sureties, 293. ACCOMMODATION INDORSEE (See IRREGULAR INDORSEE). accommodation indorsement in blank may be shown by parol to be the contract of a regular indorser, 167. contract by accommodation party with maker to have privileges of indorser, can not be shown against payee without notice, 215. successive accommodation indorsers, not liable in contribution, 516, 537. ACT OF GOD. loss resulting from, not chargeable to public officer or his sure- ties, 326. ACTIONS. at common law only joint actions could be brought to enforce joint liability, 180. 663 INDEX. (The references are to pages.) ACnUONS— Continued. where a bond secures separate rights the remedy of the obligees must be by separate actions, 273. summary action upon appeal bonds, 368. When cause of action arises upon a suretyship undertaking. upon bond of indemnity to " save harmless," not until obligee has suffered damages, 270. limitations upon actions against sureties upon official bonds, 345. bond for appeal or stay of execution, 367. not necessary to make demand upon principal before beginning action upon appeal bond, 368. injunction bonds, 379. no action upon injunction bond can be maintained until the final determination of the cause, 383. attachment bonds, 39S. when contribution between co-sureties may be enforced, 522. action for indemnity, 543. Parties to actions upon bonds, 271. bond to administrator or guardian in representative capacity, may be sued upon in individual capacity, 272. if obligee is deceased, his administrator may sue on bond, 272. as affected by the fact that the instrument is under seal, 272. creditors, legatees and heirs may sue upon administration bonds, 426. co-administrator may maintain action on bond for coBversions of hia associate, 426. ADDITIONAL SECURITY. promisor iiot released by the creditor taking additional se- curity, 135. ADMINISTRATORS (See EXECUTORS AND ADMINISTRATORS). ADMISSIONS. of principal, not competent against sureties, to establish de- fault, 339. entries in books of principal, competent as admissions, 339. if principal and surety are sued jointly, admissions of principal are competent, 340. ADVANCEMENTS. when a guarantor is entitled to notice of advancements made under the guaranty, 78. guarantor discharged by alterations in the principal contract as to the amount of advancements by creditor, 108. AFFIRMANCE. what constitutes, 362. as to part of relief granted in lower court, a pro tanto breach of bond in appeal, 363. as to one or more of the parties and reversal as to others, a breach of bond, 363. by failure to prosecute appeal, 364. dismissal for want of prosecution, a constructive affirmance, 364. dismissal for want of jurisdiction, not a constructive affi;fmance, 364. failure to prosecute appeal arising from no fault of the appel- lant, not a constructive affirmance, 365. entered by consent or compromise, not a breach of bond, 365. dismissal of appeal for want of capacity of appellant to prose- cute, considered a constructive affirmance, 367. iKDEx. 665 (The references are to pages.) AGENTS. contracts in suretyship, executed by, 23, 36, 504. neither the principal nor the creditor can act as agent of the promisor in executing suretyship contracts, 23, 24. not necessary that the authority of the agent be in writing, 24, 36. the Statute of Frauds in some States requires the agent's author- ity to be in writing, 28. if agency of one executing suretyship engagement is unauthor- ized, a subsequent ratification will validate the transaction, 36, 231. contract of a del credere agent, not within the Statute of Frauds and need not be in writing, 51. who advances payment for account of his principal, not a vol- unteer, and entitled to subrogation, 505. AGREEMENT. meaning and scope of the word as used in the Statute of Frauds, 29. view that the Statute of Frauds requires the entire agreement to pay the debt of another to be set out in the writing, 30. view that the agreement need not be in writing, 30, 31. rule in Massachusetts that the Statute of Frauds employs the word "agreement" as synonymous with promise, and that the consideration need not be recited therein, 31. the Statute in terms merely requires a " memorandum " of the agreement to be in writing, and not the entire contract, 33. ALTERATION. material alteration defined, 98. promisor discharged by material alterations of the principal con- tract, even though such alterations are beneficial to promisor, lOOn, 110, 251. change in the place of payment of the principal obligation is material, 101. changing date of maturity is material, 101. material alterations discharge the promisor whether made be- fore or after delivery to the creditor, 102. delivery by promisor of incomplete suretyship contract carries implied authority to the holder to fill up the instrument, 21, 102, 293. same effect given to alterations whether made by debtor or cred- itor, 103. change or mutilation by stranger, 103, 255. as affected by the absence of fraudulent intent, 104. if alteration is the result of accident or mistake, equity will reform the contract, 104. immaterial alteration, though fraudulent, disregarded, 105. addition of a new party as a principal maker is a material al- teration, 105. addition of new party as surety or guarantor not a material alteration, 106, 293. change in the duties of the principal, 106, 252. change in the duties of public officers by subsequent legislation, 107, 293. promisor not released by alterations which are stipulated in the main contract, 108. variation in the amount of advancements by the creditor, is a material alteration, 108, 109. failure of parties to perform the principal contract, not an alter- ation, 108. substitution of new parties is a material alteration, 109. 666 INDEX. (The references are to pages.) ALTERATION— CoMfiMwed. change or enlargement of the business of creditor as a defense to promisor, 113, 253. agreement to extend time of the main contract, is a, material al- teration, 114. defense of alteration as applied to the indorser, 223. change in the amount of compensation of principal, not a ma- terial alteration, 254. in bonds after delivery, will avoid undertaking, 254, 292, 359, 413. immaterial alterations, will not invalidate bond, 255. AMBIGUOUS WORDS. meaning of, will be ascertained if possible in construing surety- ship contracts, 18, 59, 243. will be given such meaning as will prevent forfeiture, 19, 384. view that ambiguities should be construed most strongly against the promisor, 19, 59. view that ambiguous words should be construed most strongly in favor of the promisor, 20, 59n. construction as affected by the fact that the contract is drawn by the surety, 451. AMENDMENT. exoneration of sureties by amendment to process or pleadings, 403. AMERCEMENT. record of, against public oflScer, held admissible against his surety, 342, 343n. ANCILLARY ADMINISTRATION. bond of ancillary administrator, not cumulative with bond of principal administration, 421. ANNUITY. measure of damages upon bond to secure an annuity is the amount of pajrments in default and not the penal sum named, 258n. ANOMALOUS INDORSER (See IRREGULAR INDORSER). APPEAL AND STAY BONDS. distinction between appeal and stay of execution, 352. use of the term appeal interchangeably with supersedeas, 352. instances where appeal vacates the judgment, 352. appeal is a matter of right and the remedy, though groundless, can not be denied, 353. conditions upon which appeal bonds become payable, 362. corporation signing appeal bond as surety, not estopped from showing the act to be ultra vires, 359. Statutory requirements as to appeal, 354. limitation of time for filing, 354. requirements for approval, 354. failure to approve bond, not a defense to the surety, 354n. dismissal of judicial proceedings for failure to comply with the law, 354. justification of sureties, 355. giving bond for smaller sum than is required by law, 355. giving bond for larger sum than is required by law, 356. statutory provision as to residence of surety, 356. persons prohibited by law or rules of court from becoming surety, 356. statutes requiring the fixing of penalty of bond by the court, 357. regulation by statute as to the number of sureties, 357. waiver of defects by acts of the obligee, 360. INDEX. 667 (The references are to pages.) APPEAL AND STAY BONDS— Continued. Consideration, 358. bond for which there is no requirement of law, void for want of consideration, 358. bond by administrator in appeal who is exempt by reason of hav- ing given administration bond, without consideration, 358. supersedeas bond void for want of cgnsideration if former appeal operates as stay of execution, 358. where judgment appealed from is a nullity by reason of want of jurisdiction, bond is wanting in consideration, 358. Material defects in form of iond, 357. distinctions between defects which invalidate the bond and those which merely furnish grounds for dismissal of action, 357. bonds lacking formalities of contract can not be enforced, 357. omission of defeasance clause, 358. , omission of name of judgment creditor, 358. reciting the name of an appellate court which has no exist- ence, 359. exacting more onerous conditions than the law requires, 359. Immaterial defects in the contract, 359. forfeitures not favored, 359. wrong date of judgment set out in the bond, 359. omission of appellant's name from the bond, 360. omission of name of appellate court, 360. failure of some of the obligors to sign, 360. Affirmance, 362. to constitute breach of bond affirmance must be such final order as gives the plaintifF right of execution, 362. entering an original judgment in the appellate court is not an "affirmance," 362. where only part of relief asked for is granted in the reviewing court, 363. affirmance as to one or more of the parties and reversal as to others, a, breach of the bond, 363. affirmance as the result of a failure to prosecute appeal, 364. affirmance by consent of parties, not a breach of appeal bond, 365. agreement that action may abide the outcome of a test case, not a compromise, 367. Failure to perfect appeal, 360. want of jurisdiction in the appellate court resulting in dis- missal creates no liability on the bond, 361, 364. perfecting appeal by consent of obligee after the date limited by law, 361. obligors estopped by recitals in the bond that appeal has been perfected, 361. failure to make all parties of the lower court parties in the reviewing court, 361. where appeal is entertained and judgment affirmed, sureties estopped from showing the appeal not perfected, 376. Failure to prosecute appeal, 364. dismissal of appeal for want of prosecution, a constructive affirm- ance, 364. dismissal of appeal for want of jurisdiction, not a constructive affirmance, 364. where appellant is restrained by injunction from prosecuting appeal, 365. removal of ease by act of legislature to new appellate court not named in the bond, 365. 668 INDEX. (The references are to pages.) APPEAL AND STAY BOWDS— Continued. where appeal has been dismissed and thereafter reinstated by agreement of parties, 367. want of capacity to prosecute appeal, a breach of the bond, 367. Action upon bond for appeal, 367. when may be brought, 367. efiPect of levy of execution upon property of principal as to right of action upon bond, 367. not necessary to first make demand upon the principal before proceeding against surety, 368. not necessary for obligee to first proceed against other security before proceeding against surety, 368. summary action upon appeal bonds, 368. Measure of damages for breach, 369. limited in any event to the amount the law requires to be secured, 369. limited to the express words recited in the bond, 369, 373. will include all the requirements of the law, although some are omitted from the bond, 370. in foreclosure, or where property is in custody of ofiicer of court, limited to damages resulting from appellate proceeding, 370. does not cover interest nor rents and profits of the land in fore- closure proceedings in Federal court, 370. does not cover deficiency in foreclosure proceedings, where no personal judgment is rendered, 371. does not include deficiency in action to foreclose mechanic's lien, 372. where one appeals in the interest of a trust, limited to the value of the assets belonging to the trust, 372. includes rents and profits in an action of ejectment, 372. attorney's fees resisting appeal, not included, 373. nominal damages recoverable although defendant pays judg- ment, 373. Includes entire judgment — although in excess of amount ap- pealed from, 373. includes interest upon amount of penalty after the time when the surety should have paid it, 373. Successive appeal bonds, 374. are cumulative, 374. last sureties are principal obligors and the first, sureties for •them, 374. where new trial is granted and same judgment rendered upon retrial upon which error is prosecuted the first bond remains liable, 375. joint action may be prosecuted upon successive bonds, 375. subrogation between successive appeal bonds, 469. Defenses in actions upon appeal bonds, 375. all issuable facts necessary to the validity of the judgment are settled by afiirmance of the judgment, 375. sureties not estopped from showing fraud and collusion in ob- taining the judgment appealed from, 376. want of jurisdiction in the appellate court, not a defense to sureties where judgment has been affirmed, 376. Justice court appeal, 376. vacates judgment and all orders of magistrate, 376. statutory requirements as to time of filing bond are mandatory, 377. INDEX. 669 (The references are to pages.) APPEARANCE. time and place of appearance must be definitely stated in bail bonds, 432, 434. place of appearance expressed in the alternative, void for uncer- tainty, 434. APPLICATION OF PAYMENTS. application of payments by the law, where parties themselves make no application, 134. in the absence of stipulations by the party paying, the creditor may apply to unsecured debt, 134. a bank holding note of depositor, not under obligation to surety to apply deposits of principal in payment of note, 145. if a note is payable at the bank, a failure to apply deposits in pay- ment will discharge the surety, 146. in the absence of stipulation promisor has no right to control application of collateral in the hands of creditor, 181. promisor discharged if creditor fails to apply collateral as di- rected by principal, 182. application of collateral can not be controlled after transaction is completed and security delivered, 182. APPROVAL. failure of ofBcer to approve a bond as required by law will not release the surety, 23, 288, 354n. approval of bonds held to be a judicial act, 287. of bond, will be presumed from its acceptance and retention, 287. where officer charged with the duty of approving a bond, his approval of insufficient sureties creates a liability upon his bond, 305. appeal may be dismissed for non-compliance with statute as to approval of bond, 354. ARBITRATION. submission to arbitration resulting in dissolving injunction, does not constitute breach of the bond, 382. sureties released upon attachment bonds by the submission of the case to arbitration, 404. ARREST. sureties upon bail bond exonerated by subsequent arrest of prin- cipal, 438. ASSIGNEE. surety of insolvent not discharged by failure of creditor to pre- sent claim against assignee, 132. ASSIGNMENT. a general guaranty is assignable, 63. a special guaranty is not assignable until right of action arises thereon, 64, 110. when assignment of judgment against property of principal de- stroys the lien by merger and releases promisor, 144. surety paying debt of another, entitled to have securities held by creditor assigned to him, 465, 470. ASSUMPTION. of mortgage by purchaser of land, places vendor in the situa- tion of a surety, 484. ATTACHMENT. bonds not forfeited for irregularities of execution or defects in form, 392, 395. want of jurisdiction resulting from defects in affidavit, a de- fense to sureties, 393. 670 INDEX. (The references are to pages.) ATTACHMENT— Comtimted. release of sureties by substitution or addition of new parties, 398, 403. sureties are concluded by judgment against the principal, 401. good faith, or probable cause for attachment, not a defense to action upon bond, 401. sureties estopped from questioning the regularity of proceedings out of which their liability arises, 402. truth of afSdavit for attachment can not be inquired into by the sureties, 402. sureties can not show that property taken is not subject to at- tachment, 402. no defense to sureties that officer levying writ acted without authority, 402. liability of sureties as affected by reference of the ease to arbi- tration, 404. as affected by judgment against some and in favor of some de- fendants, 404. attachment bonds available in any court to which the case goes by appeal or error, 404. if judgment is appealed from, but not the attachment, judgment in the appellate court does not affect the attachment, 404. Bond to procure attachment, 390. conditions of, 391. malice need not be shown as a basis of recovery, 392. will be binding, although executed after attachment is levied, 393. whether damages for malicious prosecution are recoverable, 393. judicial determination that the writ was wrongfully issued, con- stitutes a breach, 398. voluntary dismissal of attachment, an admission that it is wrongful, 399. failure of plaintiff to sustain his action, prima facie evidence that attachment is wrongful, 399. dismissal of attachment by reason of failure of officer to properly serve, raises no presumption of wrongful process, 400, 404. attachment upon defective affidavit is wrongful, 400. action may be maintained on bond before final disposition of the case, if attachment dissolved, 400. view that judgment in favor of principal, without adjudication of the attachment is a constructive dissolution, 401. Bond to discharge attachment, 391, 396. is a final disposition of attachment proceeding, and an admission of the validity of the attachment, 396. if attachment is void by reason of prohibition of law, bond to dis- solve is void, 397. a final judgment in favor of the plaintiff is a breach, 398. Bond to release attached property, 390, 395. conditions of, 395. redelivery bond does not affect the validity of attachment, and action for wrongful attachment may be thereafter maintained, 395. there can be no recovery on redelivery bond unless property is actually delivered to the defendant, 896. redelivery bond, written by mistake for discharge bond, 396. no action can be maintained on redelivery bond until final dis- position of the case, 400. Exoneration of sureties, 403. by delivering up property seized under the writ, 403. INDEX. 671 (The references are to pages.) ATTACRME^T— Continued. can not be exonerated pro tanto by delivery of part of attached property, 403. sureties exonerated even though the property delivered is dam- aged while under attachment, 403. discharge bond exonerated by a subsequent forthcoming bond, 403. exoneration by amendment to process or pleadings, 403. alteration of the return date of the writ as an exoneration, 403. Measure of. damages upon attachment honds, 405. actual damage of defendant from depreciation and loss of use of property recoverable, 405. expenses of defendant in securing a dissolution, an element of damage, 405. annoyance and mortification to defendant, held an element of damages, 405. speculative damages and injury to credit excluded, 405. interest on money detained recoverable, 406. expenses not recoverable where property does not belong to defendant, 406. sureties upon forthcoming bond, liable only for nominal dam- ages, where property incumbered by liens equal to its value, 406. attorney fees in resisting attachment may be recovered, 406. attorney fees incurred in the final hearing of the case not recov- erable, 406. ATTORNEY. is a public officer, 281. not a justification to public officer that he was advised by his attorney to do a wrongful act, 416. ATTORNEY FEES. in resisting appeal, not recoverable upon the bond, 373. in procuring dissolution of injunction, recoverable on the bond, 388. if injunction dissolved in the final hearing of the case, attorney fees not recoverable, 389. if motion to dissolve injunction unsuccessful, attorney fees not allowed, although injunction is dissolved on final hearing, 389. not allowed against sureties for services in modifying injunction, 390. services" in resisting allowance of injunction, not recoverable as damages, 390. recoverable upon bond in attachment proceedings, 406. in defending replevin, an element of damage in action upon bond, 413. stipulated in promissory note, available to surety paying note, 475. surety may recover contributory share of counsel fees from co-surety, 525. AUDITING ACCOUNTS. promisor not discharged by failure of creditor to audit the accounts of principal, 162, 310. B BAIL BONDS. bail defined, 431. granting bail a judicial act, 431. bail without order of court, a nullity, 431. bail ordered by officer acting without authority, a nullity, 432. 672 INDEX. (The references are to pages.) BAIL BONDS— Continued. if bond recites all necessary jurisdictional facts, sureties estopped from asserting lack of authority in officer to take bail, 432. surety upon bail bond has no right of indemnity against princi- pal for amount paid upon a forfeited recognizance, 540. Conditions in hail hands, 432. bond must stipulate a, fixed time for appearance, 432. , stipulation to appear at next term of court sufficiently definite, 432. bond remains in .force from term to term if not renewed, 433. place of appearance must be definitely specified, 434. place of appearance described in the alternative, renders bond void, 434. order to appear before court which has no existence, a nullity, 434. change of venue without authority releases sureties, 434. change of venue by act of legislature does not release bail, 435. unauthorized conditions not required by law, considered sur- plusage, and of no effect upon liability of sureties, 435. Defenses against bail hond,s, 435. stipulation between defendant and the prosecution postponing trial to some future term of court, will discharge the bail, 433. order of court changing the date of term of court, not a defense, 433. defective indictment or information, not a defense, 435. sureties held although bail is executed before accused is arrested, 435. bond specifying no offense, void, 436. bond for one offense and the indictment for another will in- validate bail, 436. bond to answer for an act which is not an offense, not binding on sureties, 436. failure to indict does not discharge bail, 437. no defense, that after bond was declared forfeited the accused appeared, 437. Emoneration of bail, 437. surrender of the accused to the proper public officer discharges bail, 437. sureties may at any time cause the arrest and commitment of the accused, 437. mere request for arrest will not exonerate bail, 438. death of the accused releases sureties, 438. subsequent escape after a surrender by the bail, will not revive liability, 438. confinement in the penitentiary of another State will not exon- erate bail, 439. delivery of the accused to authorities of another State upon requisition, exonerates bail, 439. bail exonerated by the accused being adjudged a lunatic, 440. where accused places himself under military jurisdiction, his bond will be liable for his non-appearance, 440. escape of the accused after conviction, 440. BANIC. a bank holding note of depositor is under no obligations to the surety to apply deposits of principal to the payment of note, 145. if note is payable at the bank a failure to apply deposit in pay- ment will discharge surety, 146. INDEX. 673 (The references are to pages.) BANK — Continued. sureties of public officer liable for loss of public funds by failure of bank, 320. relation of debtor and creditor between depositor and bank does not give bank any lien on deposit to secure loan to depositor, 501. BANK CASHIER. surety for fidelity of cashier held to be discharged where bank directors by exercise of diligence might have discovered a prior default, before accepting bond, 16. BANKRUPTCY. discharge of principal debtor in bankruptcy does not discharge the promisor, 145. creditor may prove for entire claim, which is part secured by surety, although the secured part has been paid by surety, 487. creditors' right of subrogation where both principal and surety are in banki-uptey, 499. right of contribution not a provable debt in bankruptcy, where no payment is made until after discharge, 535. right of indemnity a provable claim in bankruptcy, 553. BILLS AND NOTES (See PROMISSORY NOTE). BLANK INDORSEMENT. may be completed, either by the presumption of the law mer- chant, or by parol proof disclosing the intention of the parties, 21. BONDS. a bond is a specialty, 230. form and execution of, 230. incomplete bonds will not be reformed by parol proof supplying omissions, 231. if name of surety is followed by words descriptive of official posi- tion, it will be binding as the personal obligation of the signer, 232. delivery and acceptance are necessary to the validity of a bond, 234, 244. possession of bond by obligee prima fade evidence of delivery and acceptance, 234. bonds delivered in incomplete form may be filled by holder so as to give them effect, 235. incorporation of other instruments by reference, 236. main contract which the bond secures, furnishes consideration for the bond, 238. contract already executed, not a consideration for a bond to secure it, 239. bonds obtained by fraud and misrepresentation, 240. parol proof in aid of construction of bonds, 242. commencement and duration of liability upon a bond, 244. alteration of principal contract as a defense to sureties upon a bond, 251. alteration in the bond as a defense to surety, 254. surety estopped from denying recitals of the bond, 255. to induce violation of the law, 262. to prevent performance of public duty, 265. to indemnify public officer against the consequences of an un- lawful act already committed, 266. when statute of limitations begins to run against surety upon bonds, 268. 674 INDEX. (The references are to pages.) BONDS— Comiinwed. who are proper parties in action upon bond, 271. parties to actions upon bonds, as affected by the fact that the instrument is under seal, 272. Judicial bonds, 448. stay of execution on appeal, 352. successive appeal bonds, 374. bonds to procure injunction, 377. attachment bonds, 390. replevin bonds, 407. administration bonds, 415. guardian's bonds, 426. insolvency bonds, 430. bail bonds, 431. Official bonds, 276. valid although not conforming to statute, 282. without seal, binding as a simple contract, 283. given without requirement of law, 283. required by unconstitutional statutes, invalid, 284. bonds of deputies are official, 286. Private obligations, 'bonds to secure, 228. not reti-oactive unless the instrument so stipulates, 244. will cover the office or employment so long as the tenure is con- tinuous, unless limited by recitals in the instrument, 246. bonds to secure building contracts, with covenants to pay labor and material claims, 247. change in the amount of compensation of principal, will not discharge surety, 254. measure of damages, 257. measure of damages for breach of bond given to secure a due compliance wit)i the law, 260. BOOKS OF ACCOUNT. entries in books of principal, competent as admissions, to estab- lish default, 339. BREACH OF CONTRACT. failure by creditor to perform his contract with the principal will discharge the promisor, 109n. BUILDING CONTRACTS. surety not released by alterations stipulated for in the contract, 108. surety discharged by failure to hold back reserve payinent stipu- lated in contract, 112. incorporation of the terms of a building contract into the bond to secure its performance, by reference, 237. no consideration to support bond to secure building contract if bond not demanded till after execution of the main contract, 239. if building contract is executed upon condition that bond will be furnished at later date, it is supported by sufficient consid- eration, 239. surety upon building contract containing covenant to pay labor and material claims will be liable for such claims at the suit of labor and material men, 247. payment of labor claims to prevent liens from being perfected creates no liability upon bond to " save harmless from liens," 250. view that a municipality has no power to require contractor to INDEX. 675 (The references are to pages.) BUILDING CONTRACTS— Co»iMi«ed. furnish bond conditional upon the payment of labor and material claims, 248u. bond to save owner harmless against liens not available to lien holders, 251. alterations in building contract as a defense to surety upon bond, 252. as to stipulations in building contracts for payment of fixed sum per day for delays, 259. surety subrogated to rights of creditor in reserve fund, 475. BURDEN OF PROOF. in action upon a guaranty of collectibility the burden is on the creditor to show insolvency of the principal, 77. burden of proving failure or lack of consideration is on the one making the claims, 239. if jurisdiction to issue legal process is not apparent upon the writ, the burden of showing validity is upon the o£SceT serv- ing the process, 336. BY-LAWS. surety of employee of corporation not discharged because the by-laws were not complied with by employee, 157. incorporation of the by-laws of a corporation into a bond, by reference, 238. CAUSE OF ACTION (See ACTIONS). CLERK OF COURT. sureties of, liable for loss for improperly keeping court records, 304. liable for loss of papers resulting in damage to litigants, 304. not liable for failure to account for money received outside the scope of his office, 313. COLLATERAL SECURITIES. contract of extension, not implied from giving collateral matui-- ing at a later date, 120. giving of collateral is a good consideration for an agreement to extend time, 121. creditor is under no obligation to the promisor to sell collateral held as additional security, 142. defenses based upon the right of the promisor to control the application of collateral in the hands of creditor, 181. application of collateral can not be controlled after transaction is completed and security delivered, 182. creditor not obliged to resort to collateral in his hands before pro- ceeding against the promisor, 183. promisor not subrogated to collateral in hands of creditor until all the debts covered by the collateral have been satisfied, 467. promisor paying debt of another, entitled to have collateral held by creditor assigned to him, 465, 470. creditor may have dividends from estate of insolvent debtor upon full amount of claim without first accounting for collateral, 488. creditor entitled to subrogation to securities held by surety, 495. •OLLECTIBILITY. guaranty of collectibility, distinguished from a guaranty of pay- ment, 6n, 74. 676 INDEX. (The references are to pages.) COLLECTIBILITY— (7ore!DS— Continued. limitation of time for filing, 354, 377. requirements for approval, 354. failure to approve bond not a defense to sureties, 354n. dismissal of judicial proceedings for failure to comply with the law, 354. justification of sureties, 355. giving bond for smaller sum than is required by law, 355. giving bond for larger sum than is required by law, 356, 383. statutory provisions as to residence of surety, 356. persons prohibited by law or rules of court from becoming surety, 356. fixing penalty of bond by the court, 357. regulation by statute as to the number of sureties, 357. waiver of defects by acts of obligee, 360. Consideration, 358. giving of bond for which there is no requirement of law renders bomd void for want of consideration, 358. bond by administrator in appeal who is exempt by reason of having given administration bond, without consideration, 358. supersedeas bond void for want of consideration if former appeal operates as stay of execution, 358. where judgment appealed from is a nullity by reason of want of jurisdiction, bond is wanting in consideration, 358. Material defects in form of bonds, 357. distinction between defects which invalidate the bond and those which merely furnish grounds for dismissal of action, 357. bonds lacking foi-malities of contract can not be enforced, 357, 408, omission of defeasance clause, 358. omission of name of judgment creditor, 358. reciting the name of an appellate court which has no existence, 359. exacting more onerous conditions than the law requires, 359. parol. evidence not admissible to remedy defects, 383. Appeal or slay bonds, 352. distinction between stay of execution and appeal, 352. use of the term appeal interchangeably with supersedeas, 352. instances where appeal bond vacates the judgment, 352. want of jurisdiction in the appellate court resulting in dismissal creates no liability on the bond, 361, 364. perfecting appeal by consent of obligee after the date limited by law, 361. obligors estopped by recitals in the bond that appeal has been per- fected from claiming otherwise, 361. failure to make all parties in the lower court parties in the re- viewing court, 361. conditions upon which appeal or stay bonds become payable, 362. affirmance as to one or more of the parties and reversal as to oth- ers constitutes a breach of the bond, 363. addition of new party in the appellate court, 364. when action may be brought upon bond for appeal, 367. eifect of levy of execution against principal upon right of action against surety, 367. not necessary to first make demand upon principal before pro- ceeding against surety, 368. not necessary for obligee to first resort to other security before proceeding against surety, 368. summary action upon appeal or stay bonds, 368. measure of damages in action upon appeal or stay bonds, 369. successive appeal bonds, 374. Y06 INDEX. (The references are to pages.) JUDICIAL BONDS— Continued. defenses in actions upon appeal or stay bonds, 375. all issuable facts necessary to the validity of the judgment are settled by aflSrmance of the judgment, 375. sureties not estopped from showing fraud and collusion in ob- taining the judgment appealed from, 376. want of jurisdiction in. appellate court, not a defense to sureties where judgment has been affirmed, 376. where appeal is entertained and judgment affirmed, sureties es- topped from showing the appeal not perfected, 376. appeal from a justice court, 376. Failure to prosecute appeal, 364. dismissal of appeal for want of prosecution a constructive affirm- ance, 364. dismissal of appeal for want of jurisdiction not a constructive affirmance, 364. where appellant is restrained by injunction from prosecuting appeal, 365. removal of cases by act of legislature to new appellate court not named in the bond, 365. affirmance by consent of parties not a breach of appeal bond, 365. agreement that action may abide the outcome of a test case is not a compromise, 367. where appeal has been dismissed and thereafter reinstated by agreement of parties, 367. want of capacity to prosecute appeal is a breach of the bond, 367. Administration hands,. 415. distinction between bonds of officers of the court and public offi- cers, 415. duties for which administrators are chargeable, 415. liable for failure to administer estate in accordance with last will and testament, 415. no justification that officer was advised by counsel to do wrongful act,. 416. chargeable with negligence and bad judgment in investing funds of the estate, 416, 427. liable for failure to resist the allowance of unjust claims, 417. refusal to pay allowed claims, 417. failure to pay heir his distributive share, 417. failure to observe the order of preference in the distribution of assets, 417. neglect of administrator to file account, held constructive conver- sion, 417. failure to file inventory, considered breach of the bond, 418. scope of liability upon bond, 418. covers all assets whether coming into the hands of the officer be- fore or after the execution of the bond, 418, 427. covers conversions before execution of bond, 418, 427. statements in report of officer charging himself with assets he never received, not conclusive against sureties, 418n. funds collected under color of office, but not properly assets of the estate, 419. bond covers all defaults in reference to land of decedent, although the officer has no authority touching the land, 419. if administrator is debtor of the estate he must account for the debt on his bond, 419. not liable for failure to account for collection of rents in the right of heirs, 420. expenses of administration not chargeable against the bond, 420. INDEX. 707 (The references are to pages.) JUDICIAIj BOi^DS—Gontinued. failure to pay attorney fees in accordance with order of court, a breach of bond, 420. successive administration bonds cumulative, 420. ancillary administration bond not cumulative with bond given in the principal administration, 421. when judgment or order of court is necessary to action on bond, 421. not necessary to have execution against administrator before Insti- tuting action on bond, 422. sureties concluded by judgment against the principal, 423. judgment for principal conclusive in favor of sureties, 423. sureties not estopped from showing judgment was obtained by fraud, 423. judgment against administrator by confession only prima, fade evidence against sureties, 423. defenses to actions upon administration bonds, 423. conversion of trust funds with knowledge and consent of the beneficiaries will bar action on bond, 424. where administrator occupies a position of double trust the law makes the transfer as soon as payment becomes due, 424. acceptance of individual note of administrator by distributee ex- onerates sureties, 424. if executor conforms to requirements of the will, his acts will be valid although will is thereafter set aside, 425. no defense that the appointment of administrator was irregular, 425. who may maintain action on administration bonds, 425. bonds of guardians, 426. guardian liable for all property of the ward whether derived from the estate of the ancestor or other source, 427. special guardian bond to secure proceeds of land sale, not cumula- tive with general bond, 427. debts due the ward by the guardian become assets for which the bond is liable, 428. settlement of guardian's accounts, 428. acceptance by ward of note of guardian's settlement, a full de- fense to sureties, 429. guardian occupying position of double trust, 429. adjudication against guardian conclusive against sureties, 429. settlement procured by fraud, not conclusive, 430. 'Attachment bonds, 390. bonds to procure attachments, 390. bonds to release attached property or redelivery bonds, 390, 395. bonds to discharge attachment, 391, 396. not forfeited for irregularities of execution or defects in form, 392, 395. want of jurisdiction resulting from defects in affidavit, a defense to sureties, 393. whether damages for malicious prosecution are recoverable upon bond to procure attachment, 393. redelivery bond does not affect validity of attachment, and action for wrongful attachment may be thereafter maintained, 395. no recovery on redelivery bond, unless property is actually de- livered to defendant, 396. bond to discharge attachment is a final disposition of attach- ment proceeding and admits its validity, 396. if attachment void by reason of prohibition of law, bond to dis- solve is void, 397. 708 INDEX. (The references are to pages.) JUDICIAIj BOl'CDS— Continued. release of sureties by substitution or addition of new parties, 398, 403. when action accrues upon attachment bonds, 398. voluntary dismissal of attachment, an admission that it is wrongful, 399. failure of plaintiff to sustain his action, prima facie evidence that attachment is wrongful, 399. dismissal of attachment by reason of failure of officer to properly serve, 400, 404. attachment upon defective affidavit is wrongful, and gives rise to action on the bond, 400. no action on forthcoming bond until final disposition of the case, 400. action on bond to procure attachment may be prosecuted before final disposition of case, 400. view that judgment in favor of principal, without adjudication of the attachment, is a constructive dissolution, 401. sureties are concluded by judgment against the principal, 401. good faith or probable cause, not a defense to action upon bond, 401. sureties estopped from questioning the regularity of proceedings out of which their liability arises, 402. truth of the affidavit for attachment can not be inquired into by the sureties, 402. sureties can not show that property taken is not subject to at- tachment, 402. no defense to sureties that the officer levying the writ acted with- out authority, 402. exoneration of sureties by delivering up the property seized, 403. discharge bond exonerated by subsequent forthcoming bond, 403. exoneration by amendment to process or pleading, 403. reference of case to arbitrators and a finding against defendant, held to create liability against surety upon discharge bond, 404. liability of sureties as affected by judgment in favor of some and against some of the defendants, 404. attachment bonds available in any court to which the case goes by appeal or error, 404. if judgment is appealed from but not the attachment, judgment in the appellate court does not affect the attachment, 404. measure of damages upon attachment bonds, 405. Injunction bonds, 377. injunction generally inoperative without bond, 377. court of equity will require bond when not provided for by sta- ute, 378. no action accrues upon injunction bond until determined by judg- ment of court that injunction was wrongful, 379. dismissal of action without prejudice for want of service, not a breach of injunction bond, 379. dismissal of action by court for want of prosecution constitutes a breach, 380. voluntary dismissal by plaintiff a breach of the bond, 380. dismissal by agreement of parties releases sureties, 380. where dissolution of injunction is based upon facts arising after allowance of the writ, no liability on the bond, 380. dissolution of injunction on account of death of the defendant. not a breach, 381. dissolution for insufficient bond, constitutes a breach, 382. INDEX. 709 (The references are to pages.) JUDICIAL BONDS— Continued. submission to arbitration, resulting in dissolution of injunction, releases sureties upon the bond, 382. dissolution as to part of the relief prayed for, not a breach, 383. no action arises upon dissolution of a temporary restraining order until final determination of the cause, 383. bond given after injunction has issued, without consideration, 383. sureties not estopped by recitals in the bond from showing that the injunction did not issue, 384. references in injunction bonds to records, make such record a part of the bond, 384. defenses of sureties upon injunction bonds, 384. measure of damages for breach of injunction bonds, 386, 388. Insolvency proceedings, 430. failure to perform order of court a breach of receiver or trustee bond, 430. order of court fixing amount due from receiver or assignee con- clusive upon sureties, 431. Bail ionds, 431. granting bail a, judicial act, bond given without order of court a niUlity, 431. ordered by officer having no power to act, a nullity, 431. surety estopped from asserting lack of authority if bond recites necessary jurisdictional facts, 432. conditions in bail bonds, 432. time of appearance, 432. place of appearance, 434. defenses against bail bonds, 435. exoneration of bail, 437. Replevin bonds, 407. court has no authority to issue writ of replevin without bond, 407. conditions of bond in replevin, 408. bond valid although not conforming to statutory requirements, 408. the officer serving the writ made the judge of the sufficiency of the bond, 408. can not be enforced if any essential element of contractual rela- tion wanting, 408. not enforceable if the court has no jurisdiction of the subject matter, 409. bond invalid if the law under which action is brought has been repealed, 409. what constitutes breach, 409. failure to prosecute action a breach of the bond, 409. voluntary dismissal of the action, 409. dismissal by operation of law or because of death of party, not a breach, 409. dismissal for failure of proof without finding as to title, 410. no action can be maintained on the bond until the case is finally determined, 410. sureties concluded by final order in replevin action, 410. final judgment will not be enlarged, by implication, to include findings not actually entered, 410n. sureties bound by judgment although entered by confession or consent of parties, 411. sureties not permitted to show that the property taken belonged to a stranger, 411. measure of damases. 411, 710 INDEX. (The references are to pages.) JUDIOIAIj bonds— Continued. when damages may be assessed in action upon the bond, 411. costs and expenses including attorney fees as an element of dam- ages, 413. interest from the date of judgment in replevin, recoverable on the bond, 413. defenses in action upon replevin bond, 413. material alteration in the bond as a defense, 413. dismissal without consent of defendant, 413. a change of defendants by the substitution of new parties, 414. defenses in mitigation of damages, 414. no defense that property was destroyed by unavoidable casualty pending final action, 414. subsequent seizure under process of law, a defense, 415. JUDICIAL OFFICERS. cannot act through deputy, 285. liable upon their ofScial bonds for acts performed without juris- diction, 327. liability for ministerial acts, 331. distinguished from public officers, 415. JUDGMENT. creditor having judgment lien upoU property of principal may suf- fer same to become dormant without impairing rights against promisor, 142. • judgment against creditor in action against principal conclusive in favor of promisor, 148. promisor may have judgment against him set aside if creditor fails to recover in subsequent action against principal, 148. payment of judgment by the hand of the debtor is a satisfaction and releases sureties upon the supersedeas bond, 266. not material that the wrong date of the judgment is set out in an appeal bond, 359. view that judgment against the principal upon official bond is eon- elusive against the surety, 343. sureties upon bond to discharge attachment are concluded by a judgment against the principal, 401. against plaintiff in replevin dismissing action or finding right of property in defendant, conclusive against sureties, 410. judgment in replevin by confession, binds the sureties, 411. as to whether judgment against principal is necessary to cause of action upon an administration bond, 421. against principal upon administration bond conclusive against sureties, 423. adjudication against guardian in settlement of his accounts, con- clusive against his sureties, 429. surety paying judgment, entitled to have an assignment of same to himself, 470. paid by surety, not extinguished, 478. against surety, prima facie evidence against co-surety in action for contribution, 534. against surety, conclusive as to his right of contribution, 553. JURISDICTION. . promisor upon judicial bonds, estopped from denying the jurisdic- tion of the court, 20, 376, 384. liability upon bonds of judicial officers acting without jurisdic- tion, 327. distinction between acts done in excess of jurisdiction and acts done in the absence of all jurisdiction, 329. INDEX. 711 (The references are to pages.) JURISDICTION— Cojitw«ed. if judge in good faith determines he has jurisdiction, his decision, though erroneous, is judicial, and no liability arises on his bond, 330. if jurisdiction to issue legal process is not apparent on the writ, the burden of showing validity is on the officer serving the pro- cess, 336. no jurisdiction in appeal acquired, where bond not filed within statutory period, 354. dismissal for want of jurisdiction, not a constructive affirmance of the lower court, 361, 364. want of jurisdiction in attachment by reason of defective affida- vit, a defense to sureties, 393. replevin bond invalid if court has no jurisdiction over subject matter, 409. JUSTICE OP THE PEACE. issuing warrant of arrest without authority, liable for damages on his bond, 328. failure to issue order of arrest when required by law, a breach of bond, 332. failure to issue execution when required by law, a breach of min- isterial duty, 332. appeal from, to a court of record vacates all judgments or orders, 376. statutory limitations as to appeal from, mandatory, 377. JUSTIFICATION OF SURETIES. appeal may be dismissed for non-compliance with statute as to justification of sureties, 355. K KNOWLEDGE. suretyship contracts without the knowledge of the principal are binding upon the promisor, 67. immaterial whether the creditor has knowledge of the suretyship at the time the relation arises, 125. promise to pay deemed waiver of defense only when promise is made with knowledge of defense, 130. promisor discharged by a, release of securities in hands of the creditor although he has no knowledge of the additional securi- ties at the time he signs, 139n. promisor bound if he signs with knowledge that main contract is ultra vires, 150. promisor who signs as surety for a firm vnth knowledge that the partnership name was signed to the main contract by a partner without authority, will be bound, 150. fraud of principal, without knowledge of creditor, not a defense to promisor, 158. false representation of third persons without knowledge of creditor will not release promisor, 159. conditions imposed by promisor upon his contract without knowl- edge of creditor, not a defense, 240. promisor who pays may be subrogated although his contract was made without knowledge that creditor holds securities, 466. surety paying debt without knowledge that creditor has released securities may maintain action to recover back, 502. 712 INDEX. (The references are to pages.) L LABOR AND MATERIAL CLAIMS. surety upon building contract containing covenant to pay labor and material claims will be liable for such claims at the suit of labor and material men, 247. payment of labor claims to prevent liens from being perfected cre- ates no liability upon bond to " save harmless from liens," 250. view that a municipality has no power to require contractor to furnish bond conditional upon the payment of labor and ma- terial claims, 248n. LEGISLATURE. bonds of public crtBcers as aflfected by subsequent acts of legislature changing the duties of officers, 107, 293. extension of tenure of office by legislature, 296. LETTER OF CREDIT (See LETTERS OF GUARANTY). advances made upon a partnership letter of credit after dissolu- tion of the firm will not bind the guarantor, even though the creditor had no knowledge of the dissolution, 66. notice of default required to charge the guarantor of a letter of credit, 91. LETTERS OF GUARANTY (See LETTER OF CREDIT), not construed with technical precision, 19. view that the construction should be most strongly against the promisor, 19. view that the construction should be most strongly in favor of the promisor, 20. LETTER OF RECOMMENDATION. does not amount to a guaranty, 69. LEVY. release of levy on property of principal will discharge promisor, 138, 144, 501. return of writ without levy, by direction of creditor, will not dis- charge promisor, 142n. LEX FORI. statute of frauds in most jurisdictions effects merely the remedy and the law of the Forum will be enforced, 33, 54. LIABILITY, commencement and duration of liability upon a bond, 244. limited to the term of office or agency although bond recites no words of limitation, 245. LIEN. creditor under no obligation to promisor to acquire lien upon property of principal, 138. creditor having judgment lien upon property of principal may suflfer same to become dormant without impairing rights against promisor, 142. assignment by creditor of judgment lien against property of prin- cipal to one who purchases the property upon which lien rests destroys the lien by merger and discharges promisor, 144. payment of labor claims to prevent liens being perfected creates no liability upon bond to " save harmless from liens," 250. bond to indemnify mortgagee against lien not available to lien- holders, 251. of judgment, not extinguished by payment of judgment by surety, 478. INDEX. 713 (The references are to pages.) LIFE ESTATE. payment of mortgage to protect life estate, subrogates the one paying to the righta of the mortgagee, 485. LIMITATION OF ACTIONS. creditor may proceed against surety of a decedent although action barred against the estate, 132. creditor may recover of surety although claim barred against in- solvency assignee of principal, 132. actions barred against public officers also barred against their sureties, 133. view that surety who pays may recover from principal although action of creditor against principal is barred, 133, 550. when limitations upon bond begins to run, 268. conflicting views as to whether a fraudulent concealment by the principal of default prevents the operation of statute as to surety, 268. against sureties upon official bonds, 345. statute begins to run from the time demand is made for settle- ment, 345. when demand will be presumed, 345. creditor subrogated to securities held by surety, although the lat- ter discharged by statute of limitations, 495. if action of surety against principal is barred by statute of limi- tation, the right of subrogation deemed waived, 508. surety paying debt barred by statute cannot recover contribution, 532. LIMITED GUARANTY. conflicting views as to whether a guaranty without express limi- tations is continuing or limited, 70. parol proof held admissible to determine whether guaranty is limited or continuing, 72n. LUNACY (See INSANITY). M MAKER. addition of new party as principal maker without consent of promisor will discharge promisor, 105. blank indorsement, before delivery, of note payable to the order of the maker, 217. MALICIOUS PROSECUTION. whether damages for, can be recovered upon attachment bond, 393. MARK. signature to memorandum by mark of the party to be charged, satisfies requirements of statute of frauds, 36. MARRIED WOMEN. in some states may becomes promisors in suretyship the same as men, 11, 12. if a substituted contract is void by reason of coverture the cred- itor will be restored to his rights under original contract, 137. if principal is incapacitated by reason of coverture, such defense is not available to the promisor, 149. wife paying mortgage, subrogated to the lien and priority of the security, 485. one advancing necessaries to wife, not subrogated to rights of wife against husband, 505n. MARSHAL (See SHERIFF AND CONSTABLE). 714 INDEX. (The references are to pages.) MEASURE OP DAMAGES. penalty of a bond fixes limit of recoTery, but only so much can be recovered as adequately measures the damage sustained, 258. if no damages are shown, nominal damages recoverable, 258. upon bond to secure an annuity, is the amount of payments in de- fault and not the penal sum named, 258n. stipulations in building contracts for payment of fixed sum per day for delays, amount to liquidated damages, 259. where condition of bond is the due compliance with law, the pen- alty named presumed to be liquidated, 260. interest as an element of damages, 262, 373, 387. in action upon appeal or stay bonds, 369. in action upon injunction bonds, 386, 388. in action upon attachment bonds, 405. in action upon replevin bonds, 411. " MERCANTILE AMENDMENT LAW." as to the consideration of suretyship contracts, 30. as to the right of subrogation to the surety who pays, 465. as affecting the lien of judgment paid by surety, 476. " MEMORANDUM OR NOTE." the memorandum required by the statute of frauds is not the con- tract itself, 33, 34, 35. contract to pay the debt of another need not be in writing if the memorandum is written, 33. statute does not require the " memorandum " to be signed by both parties, 34. not necessary that it appear all on one paper, 34. the several papers constituting the memorandum must either refer to each other or each be signed by the party to be charged, 34, 35. if the party to be charged signs by initials it will be sufficient to satisfy the statute of frauds, 36. a printed signature, if affixed by authority is a sufficient compli- ance with the statute, 36. a signing upon any part of the memorandum is sufficient, 36. signature upon the blanks used by the sender of a telegram is a sufficient signing of the " memorandum " required by the statute of frauds, 36. MERGER. assignment by creditor of judgment lien against property of prin- cipal to one who purchases the property on which the lien rests, destroys the lien by merger and discharges promisor, 144. no merger as against creditor, when surety purchases land upon which his indemnity mortgage rests, 496. MINISTERIAL ACTS. defined, 331. judicial officer liable for failure to perform ministerial duty, 332. duty of granting writ of habeas corpus, held ministerial, 332. issuing order of arrest by justice of the peace, considered minis- terial, 332. failure of justice of the peace to issue execution, a breach of min- isterial duty, 332. MINOR (See INFANCY). MISCONDUCT. ' of creditor resulting in the release of collateral or liens held- as ad- ditional security will discharge the promisor, 140. INDEX. 715 (The references are to pages.) mSGOl^-DVCT—ConUnued. no duty rests upon creditor to disclose misconduct of principal in other transa-etions, in the absence of special inquiry, 154. misconduct of the principal as a defense in suretyship, 158. delivery of suretyship obligations by the principal without com- plying with conditions imposed by promisor, 159. of surety in. contributing to default of principal, a bar to right of contribution, 521. MISREPRESENTATION. promisor may avoid his contract for a fraudulent misrepresenta- tion of facts, 150. failure to disclose information by the creditor when inquired of amounts to affirmative misrepresentation, 152. acceptance by creditor of promise of surety with knowledge of facts affecting risk, held an implied misrepresentaiion, 154. misrepresentation made to the promisor by the principal, not a, defense, 159. false representation by a third person with knowledge of creditor will not release promisor, 159. misrepresentation applies only to present or past transactions, 162. MISTAKE. suretyship instrument will be reformed to correct mistake, 19, 104. mistake in the name of the promisee in suretyship cannot be cor- rected by parol, 64. recitals of a bond cannot be corrected in an action on the bond by parol evidence showing mistakes, 242. MORTGAGE. where mortgage covers two pieces of property a conveyance of one places the alienated piece in the situation of a surety, 127. failure to file mortgage given to creditor by principal, resulting in loss from intervening liens will discharge promisor, 141, 501. failure of creditor to foreclose a mortgage held as additional se- curity will not discharge promisor, 141. one advancing money upon a defective mortgage, subrogated to liens paid off with his advancement 464. surety paying debt secured by mortgage, subrogated to rights of mortgagee, 480. cancellation of mortgage by creditor after payment by surety, ef- fect upon right of subrogation, 480, 498. rule as to tacking tb mortgage the subsequent advances of the creditor. 482. indorser paying, subrogated to mortgage security held by creditor, 484. wife paying mortgage, subrogated to lien and priority of the se- curity, 485. payment of mortgage to protect life estate, 485. MORTGAGEE. must observe the rights of the vendor as surety, where land is sold subject to a mortgage which the vendee agrees to pay, 25, 125. bond to indemnify mortgagee against liens under building contract, not available to lienholders, 251. MORTGAGOR. in the situation of a surety where property is sold subject to mort- gage, 125, 484. rule in the Federal courts as to suretyship relation between mort- gagor and purchaser who assumes mortgage, 126. 716 INDEX. (The references are to pages.) MUNICIPALITY. view that a municipality has no power to require contractor to fur- nish bond conditional upon the payment of labor and material claims, 248n. N NAME. essential to the validity of a bond that it recite the name of the obligee, 230. not necessary that the name of the obligor appear in the body of the bond, 231. NATIONAL BANKS (See BANKS) . cannot contract in suretyship except as it may be necessary in order to transfer commercial paper by indorsement, 12, 13. the powers conferred by the National Banking Act give implied authority to become surety or guarantor in the negotiation of commercial paper, 13. NEGLIGENCE. of creditor resulting in loss of securities will discharge promisor, 140. failure to file mortgage given creditor by principal is negligence and will discharge promisor, 141. negligence of oflficers of the law in executing legal process, con- sidered as negligence of the creditor, 144. fraud will not be imputed because the creditor by reason of negli- gence does not know of facts materially affecting the risk of the promisor, 154. public officers liable upon their bond for negligence, 305. sureties of public officers not released by the negligence of other officials, 310. administrator chargeable with negligence in investing trust funds, 416. NEGOTIABLE INSTRUMENTS. suretyship as related to negotiable instruments, 188. transfer of, carries with it a guaranty of the paper without special assignment of the guaranty, 63. liability of parties in suretyship as affected by negotiability, 188. negotiability not destroyed by a conditional indorsement, 197. restrictive indorsement destroys negotiability, 198. indorsement to one for the use of another does not destroy nego- tiability, 199. indorsement for transfer accompanied by a guaranty does not de- stroy negotiability, 222. order of liability between co-promisors upon negotiable paper, 223. indorsement " without recourse " does not destroy negotiability, 195. special indorsement without words of negotiability does not re- strict the subsequent negotiability of the paper, 196. NOTARY PUBLIC. is a public officer, 281. sureties liable if notary uses his office for a wrongful purpose, 334. liable on his bond for negligent performance of duty, 334. sureties liable although officer acts without any intent to violate his duty, 334. NOTICE. surety not entitled to notice of default, 6, 157. guarantor entitled to notice of default in certain cases, 6, 86, 89. INDEX. 717 (The references are to pages.) WTICE— Continued. if the facts upon which the liability of the guarantor rests are not within the knowledge of the guarantor or depend upon the cred- itor's option notice of default is required, 90. when a guarantor is entitled to notice of advancements made under the guaranty, 78. when notice of acceptance of guaranty necessary to charge the guarantor, 77. notice of default required to charge the guarantor of a letter of credit, 91. suretyship by operation of law imposes duties upon creditor who has notice of the relation, 124. statutory provisions as to notice by the promisor to the creditor to sue the principal, 175. indorser entitled to immediate notice of default, 192. indorser held upon the collateral warranties incident to his con- tract, without notice of default, 192. parol proof inadmissible to show waiver of demand and notice by indorser, 203. NOVATION. promise to pay the debt of another based upon a special benefit to the promisor is a novation and not within the statute of frauds, 41, 45, 48. if credit is given wholly to the promisor a novation arises, and a verbal promise will be binding, 42, 43. if the promise to pay the debt of another is upon the condition, that the principal debtor be discharged, the promisor is substi- tuted for the principal, and his undertaking need not be in writing, 44. does not arise unless the new contract is valid and upon which the creditor may have action, 136. OATH OF OFFICE. a distinguishing characteristic of public ofSce, 280. OBLIGEE. essential to the validity of a bond that the instrument recite the name of the obligee, 230. right of obligee to fill blanks in incomplete bonds, 235. OBLIGOR. not necessary that the name of the obligor be recited in the body of the bond, 231. OFFER TO PAY. distinction between tender and offer of payment, 135. OFFICER (See PUBLIC OFFICERS). of corporation cannot bind the corporation in a suretyship engage- ment unless in pursuance of a direct authority, 12. OFFICIAL BONDS (See PUBLIC OFFICERS). distinction between public office and employment, 277. indicia of public office, 281. will be binding although not conforming to the requirements of statute, 282. will be binding although not required by law, 283. not valid if given in pursuance of an unconstitutional statute, 284. signature of principal not essential to the validity of official bonds, 288. 718 INDEX. (The references are to pages.) OFFICIAL BOl^SDS— Continued. if statutes require signature of principal, waiver of such signature must be shown in order to hold sureties, 288. second bond given in the same term cumulative, 303. if new bond recites that it is in substitution of former bond it will exonerate first sureties, 304. view that the relation of debtor and creditor rather than trust exists between a public officer and the people as to public funds, 305. presumption tliat official duty has been, performed, 337. collection of judgment against surety may be enjoined, if in sepa- rate action against the principal the judgment is in favor of principal, 345. limitations upon action on official bonds, 345. Alteration of official duties, 293. subsequent legislation imposing new duties upon public officers as a defense to their sureties, 107, 293. sureties give implied assent to the addition of new duties of the same general character, 295. Approval of sureties, 286. disability of sureties, 286. property qualifications, 287. approval is a judicial act, 287. presumed from the acceptance of bond, 287. failure to approve, not a defense, 288. public officer approving bond with insufficient sureties, liable on his bond, 305. Delivery of bond, 289. time of delivery provided for by statute, 289. vacation of office by failure to file bond as required by law, 289. filing bond after time fixed by law, not a defense to sureties, 291. Scope of liability. if bond is given for a term of office it will cover defaults before de- livery of bond, where the officer fails to make seasonable deliv- ery, 292. will not cover extension of tenure of office by act of legislature, 296. will include the entire term and such further time as is necessary to install the successor in office, 297. liable for negligence and want of capacity, 304. not liable for errors of judgment where proper efi'ort is made to ascertain the duty to be performed, 305. not protected by advice of counsel, 305. liable for interest collected upon public funds, 305. eases holding the officer not liable to account for interest on pub- lic funds, 308. not liable for failure of officer to perform his contracts with persons dealing with him in his official capacity, 309. not liable for failure to account for money received outside the scope of the office, 311. acts performed under authority of a superior officer, but outside the scope of office, 313. not liable for failure to account for money borrowed without au- thority, 314. liable for loss of public money by failure of bank used as public depository, 320. loss of public money by theft or robbery, 324. sureties not liable lor loss resulting from irresistible superhuman force, 326. INDEX. 719 (The references are to pages.) OFFICIAI, BONT)&— Continued. Defenses of sureties. defenses growing out of contract relations cannot generally be in- terposed, 280. sureties discharged by alterations in the bond to which they do not consent, 292. alterations beneficial to surety are a defense, 292. immaterial alterations net a defense, 292. addition of new name as surety not a material alteration, 293. mutilation of the bond by accident not a defense, 293. an increase or diminution of the compensation of public officers not a defense, 295. sureties not released by the negligence or misconduct of other officials, 310. bond of indemnity to officer to prevent performance of duty, does not bind surety, 334. sureties may stand upon the exact term of the bond, 335. sheriff or constable acting within the terms of the mandate of the court, fully protected if court has jurisdiction, 335. if process does not disclose irregularity, the officer is protected in the service even though he has knowledge of irregularity, 335. public officers not liable for non-performance of duty, if prevented by circumstances beyond their control from exercising their functions, 336. Evidence agmnst sureties upon official bonds, 338. admissions of principal, not competent against sureties, to estab- lish default, 339. contemporaneous declarations admissible as part of the res gestae, 339. entries in books of principal, competent as admissions, 339. if principal and surety are sued jointly, admissions of principal are competent, 340. view that judgment against principal is not admissible against the surety, 340. view that judgment against the principal is prima facie evidence against the surety, 342. view that judgment against the principal is conclusive against the surety, 343. judgment in favor of principal conclusive in favor of surety, 344. Special lands, 297. general bond not liable for defaults of the special, nor special bond liable for acts in the line of general duty, 297. if special bond is required by law, the general bond not liable for defaults in the special duty, even though special bond is not given, 298n. Retroactive liability upon bonds, 299. bonds of public officers cover only the period named in the bond, 299. liability of sureties where officer holds office several terms, 299. presumption that liability arose in the last term, 299. liability of sureties where officer pays defalcations of one term with moneys received during another term, 300. where officer borrows money to make good a shortage, and repays loan with public funds of a later term, 301. where officer holds over without bond and converts public funds after the expiration of Ms term, 301. where the holding over is contrary to law, sureties of former term cannot be held, 302. 720 INDEX. (The references are to pages.) OFFICIAL BONDS— Continued. effect of approval of accounts at close of first term as to the lia- bility of second term sureties, 302. where wrongful act is partly in one term and partly in another, 303. supplemental bond given in same term liable for defaults commit- ted before its execution, 303. Judicial officers. acting without jurisdiction liable on their bond, 327. justice of the peace issuing warrant of arrest without authority, 328. imposing sentence of imprisonment where the law only gives au- thority to impose fine, 328. no liability for acting in excess of jurisdiction, 328. if judge in good faith determines he has jurisdiction, his decision, though erroneous, is judicial, and no liability arises on his bond, 330. liable for failure to perform ministerial duties, 331. duty of granting writ of habeas corpus, held to be ministerial, 332, issuing order of arrest by justice of the peace considered minis- terial, 332. failure of justice to issue execution a breach of ministerial duty, 332. probate judge held liable tor issuing marriage license to a minor, 333. Sheriff and constable bonds. liable for damage to property taken in execution or attachment, 304. trespass and other wrongs committed colore officii, 314, 319. levying upon property of a stranger to the writ, 315. selling property exempt from execution, 317. use of unnecessary force in making arrest or preventing escape, 317. acting upon a void writ, 318. cases holding that sureties are not liable for wrongs committed colore officii, 319. surety paying loss resulting from act of deputy, subrogated to rights of principal on the bond of the deputy, 474. Deputies, 284. distinguished from assistant or employee, 284. bonds construed as official, 286. sheriff liable for official acts of his deputy, 333. sheriff not liable for the tort or fraud of his deputy, 333. government officers not liable for the acts of deputies, 334. ORDER OP LIABILITY. between co-promisors upon negotiable instruments, 223. several promisors upon negotiable instruments presumed to have signed in the order in which they appear upon the paper, 224. ORIGINAL PROMISOR. a promise for the benefit of one made upon the credit of two, makes both original promisors, 43. PAROL EVIDENCE. competent to show the character in which accommodation parties sign negotiable instruments, 8, 191, 214, 517, 538. terms of incompleted contracts may be shown by parol in some instances, 21. INDEX. 721 (The references are to pages.) PAROL EVIDENCE— CoMfmued. authority of agent to execute suretyship contract may be shown by parol except where statute of frauds otherwise provides. 24, 28. when the consideration of suretyship may be shown by parol, the agreement to pay the debt of another may be shown by parol if the preliminary memorandum is in writing, 33, 34. held admissible to determine whether a guaranty is limited or continuing, 72n. competent to show that the language employed in a suretyship con- tract was intended to have a special meaning, 58, 243. mistake in the name of the promisee cannot be corrected by parol so as to enable another person to maintain action upon a con- tract of suretyship, 64. agreement to extend time of payment of principal contract may be shown by parol, 121. waiver of defenses may be shown by parol, 130. a condition precedent may be shown by parol, 164, 167. promisor cannot show by parol that his contract is to Tje per- formed only upon contingency, 164, 168. failure of consideration may be shown by parol, 166, 167. accommodation indorsement in blank may be shown by parol to be the contract of an indorser, 167. exoneration of promisor may be shown by parol, 168. view that conditions and restrictions upon indorsements may be shown by parol, 199. view that conditions and restrictions upon regular indorsements can not be shown by parol, 203. parol proof inadmissible to show waiver of demand and notice by indorser, 205. parol proof admissible as to whether irregular indorser signs be- fore or after delivery, 213. parol proof not admissible to show absence of all liability, 216. view that parol proof is admissible to show character of indorse- ment even against remote parties, 217. parol evidence competent to show that promisors are jointly liable, 224. not admissible to supply omissions in incompleted bonds, 231, 383. rule where bond is delivered with an understanding as to how it is to be completed by the holder, 235. consideration of a bond recited in the instrument can not be con- tradicted by parol, 239. agreements modifying recitals of a bond can not be shown by parol, 242. fraud in obtaining signature of promisor may be shown by parol, 244. PARTIES TO ACTIONS. if principal and promisor are both parties to action by the-ereditor, equitable set-off against the creditor in the right of the princi- pal accrues to the promisor, 179. statutory provisions as to the right to make both principal and promisor parties to the action, 180. who are proper parties to actions upon bonds, 271. if instrument is under seal only those named as parties therein can maintain action upon it, 271. if instrument not under seal anyone having beneficial interest can maintain action, 271. 722 INDEX. (The references are to pages.) PARTIES TO ACTIONS— Conimwed. bond to administrator or guardian in representative capaoily may be sued upon in individual capacity, 272. if obligee is deceased his administrator may bring action upon bond, 272, all parties for whose benefit bond is made must join as plain- tiffs in action for breach, 273. where bond secures separate rights the remedy is by separate actions, 273. if bond is joint and several anyone or more of the obligors may be joined as defendants, 274. if obligors severally liable they can not be joined except under Code provisions, 274. joinder of defendants where one co-obligor is deceased, 274. sureties upon successive bonds may be joined in one action as de- fendants, 274. appeal bond, as affected by the addition of new party in the Appellate Court, 364. PARTIES TO SURETYSHIP CONTRACT. three parties required in a suretyship undertaking, 4. must be under no disability, 11. corporation may become a promisor in suretyship if the trajis- action is in the regular course of its business, 12. a partnership can become a promisor in suretyship by its firm name, 12. the addition of a new party as a principal maker as a defense to the promisor, 105. substitution of new parties is a material alteration of contractual relations and discharges promisor, 109. PARTNER (See PARTNERSHIP). retiring partner, is placed in the situation of a surety, where the remaining partner assumes the firm debts, 24, 125, 484. partner who pledges his individual property to secure a firm debt is in the situation of a surety, 25. retiring partner, after dissolution, discharged from partnership debts by extension of time to remaining partner, 125. guarantor to retiring partner against firm debt, effect of breach of promise as to resuming business, 163. PARTNERSHIP (See PARTNERS). can become promisor in suretyship in its firm name, 12. one partner can not bind the firm in suretyship without express authority, 12. unauthorized signing of firm name to suretyship contract will bind the individual member who aflSxes the signature, 12. if suretyship contract is within the usual scope of the business of the firm it will be binding, although executed by one member of the firm without express authority, 12. advances made upon a partnership letter of credit after dissolu- tion of the firm will not bind the guarantor, even though the creditor had no knowledge of the dissolution, 66, 110. retiring partner after dissolution, in situation of a surety, 125. promisor for a firm who signs with knowledge that the partner- ship name was signed to the main contract by one partner with- out authority, will be bound, 150. PAST TRANSACTION. not a sufficient consideration to support a suretyship, 17, 239. INDEX. 723 (The references are to pages.) PAYMENT. guaranty of payment distinguished from a guaranty of collecti- bility, 6n. change in place of payment will discharge the promisor who does not consent, 101. application of payment by the law, where parties themselves make no application, 134. in the absence of stipulations by the party paying, the creditor may apply to unsecured debt, 134. refusal to accept tender of payment made by principal will re- lease promisor, 135. distinction between tender and offer of payment, 135. if payment by principal is void, liability is revived against prom- isor, 135. discharge of promisor by acts equivalent to payment, 266. when the note of the principal is equivalent to payment, 267. possession of bond by surety, a presumption of payment, 267. in full, must be made before the equity of subrogation arises, 466. by persons in the situation of a surety, right of subrogation, 483. surety may enforce contribution, although payment was without compulsion, 531. surety may enforce indemnity against principal for part pay- ment, 543. acceptance by creditor of negotiable note of promisor, equivalent to payment, 545. view that non-negotiable note is not equivalent to payment, 546. PENALTY. if penalty of a bond is left blank the omission can not be sup- plied without the consent of the obligor, 22, 231. if penalty named is greater than is required by law, the surety not bound for the excess, 23, 383. can not be enlarged by a contemporaneous agreement, 260. official bond with penalty in excess of statutory requirement, valid to the amount of required penalty, 282. requirements of the statute deemed waived as to amount of pen- alty where the parties themselves fix the penalty, 357. PERSONAL SURETYSHIP. defined, 3 distinguished from real suretyship, 3. PLACE OF PAYMENT (See PAYMENT). PLEADING. petition or declaration upon contract in suretyship need not aver that such contract is in writing, as a compliance with the statute of frauds is a matter of proof and not of pleading, 52. demurrer to pleading will not raise the question of a non-com- pliance with the statute of frauds, except where a verbal con- tract is affirmatively pleaded, 52. statute of frauds not available as a defense to a suretyship con- tract unless pleaded, 53. the question of a non-compliance with the statute of frauds can not be put into the record by a request to charge, 53. defendant may plead the statute of frauds, although admitting in his answer the making of the contract, 53. POSTMASTER. held liable on his bond for defaults of his deputy, 334n. PREMIUM. as affecting the contract of the corporate surety, 446. T24 INDEX. (The references are to pages.) PRESENTMENT. indorser's contract requires holder to present paper to maker on the date of maturity, 191. holder not relieved of duty of presentment by the fact that the paper was transferred to him after maturity, 191n. indorser held upon the collateral warranties incident to his con- tract without presentment and demand, 192. PRESUMPTION OF FACT. irregular indorser presumed to be guarantor, 8n. irregular indorser presumed to be surety, 8n, 209. presumption of irregular indorsement may generally be rebutted, 8, 191. presumption as affected by the fact being shown whether the in- dorsement was before or after delivery, 10. presumption as to contract of irregular indorser signing before delivery, 209. presumption as to contract of irregular indorser signing after de- livery, 212. presumptions as to whether irregular indorser signs before or after delivery, 214. se<\reral promisors upon negotiable paper, presumed to have signed in the order in which they appear upon the paper, 224. consideration of a bond is presumed until contrary is shown, 239. possession of bond by surety is a presumption of payment, 267. approval of bond of public oflScer is presumed from its acceptance and retention, 287. the due performance of official duty vrill be presumed, 337 no presumption that public officer has authority to do what he has undertaken, 338. PRINCIPAL. one for whose account the contract is made, 4. guaranty for one principal can not be enforced if advancements are made to more than one, 65. guaranty for joint principals not held for advancements made to one, 65. if guaranty is absolute, not necessary to first pursue and exhaust the principal, 73. fraud practiced by the principal on the promisor without knowl- edge of the creditor will not discharge the promisor, 16, 158. necessary for principal to sign bond where obligation is joint, 231. change in amount of compensation of principal, not a material alteration of main contract, 254. signature of principal to official bond, not essential to its va- lidity, 288. PRIORITY. surety paying debt of another, entitled to the priority held by the creditor, 474. wife paying mortgage, subrogated to priority of the security, 485. creditor will have priority in proceeds of mortgage given to surety, over debts due the surety secured by same mortgage, 496. PRIVATE OBLIGATIONS. distinguished from official duty, 229. PROHIBITION BY STATUTE (See STATUTES RELATING TO SURETYSHIP). PROMISE. meaning of the words " promise " and " agreement " as used in the statute of frauds. 30. INDEX. 725 PROMISE— Continued. oral promise to pay the debt of another will be binding if the promisor signs a " memorandum " or " note " of the promise, 33. a promise made to the debtor to pay his debt is not within the statute of frauds, 37. promise of indemnity not within the statute of frauds, 37. verbal promise to indemnify another as surety, not an undertak- ing within the statute of frauds, 38. the doctrine of Thomas vs. Cook, 38. the doctrine of Green vs. Cresswell, 38, 39. American decisions as to whether a promise of indemnity is . within the Statute of Frauds, 40. failure to keep promise by creditor not a defense to surety or guarantor where such promise is not made condition of the contract, 162. if the thing promised is known to be impossible it will amount to deceit, 162. essential to the validity of a bond that the instrument recite a promise to pay or perform the obligation secured, 230. PROMISOR. defined, 4. who may become promisor in a suretyship contract, 11. release of promisor by creditor, 168. paying debt, entitled to indemnity from principal, 539. PROMISSORY NOTE. execution of note for usurious interest, a good consideration for extension of time to principal, 118n. execution and delivery of new note payable at a later date, ex- tends time of original obligation and releases promisor, 119. giving note for past due obligation, not an extension of time, 120. if note given in renewal is invalid, the old note, though surren- dered, is revived, 136. contract of extension written upon a note, the indorsee takes sub- ject to the extension, 193. when note of principal to creditor is a payment which releases promisor, 267. acceptance by distributee of the individual note of administrator or guardian releases the sureties, 424, 429. payment by surety with note gives immediate right of contribu- tion from co-surety, 523. contribution between parties to bills and notes, 537. acceptance by creditor of negotiable note of promisor, equivalent to payment, 546. PUBLIC MONEY. liability of public officers to account for interest upon public funds, 305. lost by failure of bank, liability of sureties of officer, 320. lost by theft or robbery, 324. PUBLIC OFFICERS (See OFFICIAL BONDS). who are public ofiicers, 277. duty of public officers distinguished from private obligations, 229. franchise of public office is not contractual, 277. distinctions between contractual and official relations, 279. sureties upon official bonds contract with reference to reserved power of the sovereign to control the tenure and duties of the office, 280, 293. alteration in the official relations between the officer and the State not a defense, 280. official oath is a distinguishing characteristic of public office, 280. notary public is a public officer, 281. ?26 INDEX. (The references are to pages.} PUBLIC OFFICEVIH— Continued. attorney-at-law a public officer, 283. test of public office, 281. duty of officer to give bond arises from statute, 281. liable for breach of duty, although no bond is given, 282. official bond valid, although not conforming to statute, 282. giving a joint bond where statute requires joint and several, 283. sureties not released by omission of seal from official bond, 283. official bond given without requirement of law is binding, 283. official bonds required by unconstitutional statutes, invalid, 284. bonds of deputies, 284. vacation of public office by failure to deliver bond within the time required by law, 289. alterations of bonds of public officers as a defense to sureties, 292. change in the duties of public officers by subsequent legislation, 107, 293. when sureties upon official bonds not liable for defaults in added duties, 294. sureties not discharged by change in the compensation of public officer, 295. extension of tenure of office by legislative act, 296. bonds of, not retroactive, 299. by accepting office impliedly warrant that they have capacity to fill the position, 304. sureties of, liable for failure to account for the use of public funds, 305. eases holding the officer not liable to account for interest on public funds, 308. duty of, to act under unconstitutional law, 313. trespass and other wrongs committed by sheriff or constable colore officii, 314, 319. liable for loss of public funds by failure of bank used as public depository, 320. loss of public money by theft or robbery, 324. sureties not liable for loss resulting from irresistible superhuman force, 326. liability of judicial officers upon their official bonds, 327, 331. government officers not liable for acts of deputies, 334. not liable for nonperformance of duty if prevented by circum- stances beyond their control from exercising their functions, 336. may refuse to act under unconstitutional statutes, 336. the due performance of official duty will be presumed, 337. no presumption that officer has authority to do what he has un- dertaken, 338. PUBLIC POLICY. stipulation that amount paid by surety is conclusive against prin- cipal, void as against public policy, 457. agreements to appoint deputies, void as against public policy, 285. against public policy to imply a promise of indemnity in favor of surety upon bail bond, 540. Q QUALIFICATION OF SURETIES. upon bonds of public officers, 286. as to residence within the jurisdiction where bond is filed, 287, 356. IITDEX. 727 (The references are to pages.) R RATIFICATION. suretyship contract by infant becomes valid only when ratified by him after reaching maturity, 11. an unauthorized signing of a firm name to a suretyship contract will bind the partnership if ratified by the firm, 12. if signature to a suretyship engagement is affixed by an unau- thorized agency, a subsequent ratification will validate the transaction, 36. REAL SURETYSHIP, defined, 3. mortgage and pledge the subject of real suretyship, 4. RE-ARREST. of accused after escape exonerates surety upon bail bond, 438. RECOGNIZANCE (See BAIL BONDS). REDELIVERY BOND. conditions of, 395. does not bar action to dissolve attachment; 395. will be binding if property is released, although not in form required by statute, 395. failure to secure order of court, although required by law, will not invalidate .bond, 396. not liable unless the property is actually delivered, 396. no action upon forthcoming bond until a final disposition of the case, 400. RECEIVER. considered the " hand of the Court," 430. failure to perform the order of the Court, a breach of bond, 430. order fixing the amount due, conclusive upon sureties, 431. sureties of, may follow and subject trust funds in the hands of third persons, 471. RECITALS OF THE CONTRACT. promisor estopped from denying, 20, 255, 361, 376. not estopped from denying recitals inserted by fraud 20, 257. liability upon bond limited to the recitals of the instrument, 243. that injunction has been allowed, not conclusive against sureties, 384. RECORDING MORTGAGE. failure of creditor to record mortgage held as additional se- curity will discharge promisor, 141, 142. REFERENCE TO OTHER INSTRUMENTS. incorporation of other instruments into a bond by reference, 236. by-laws of a, corporation incorporated into a bond by reference, 238. REFORMATION OF CONTRACT. if contract is induced by fraud or mistake it will be reformed in equity, 19. alterations in contract resulting from accident or mistake re- formed in equity, 104. REGULAR INDORSEE (See INDORSER). RELEASE. whatever releases principal will release promisor, 146. release of promisor by the creditor, 168. release of co-promisor by the creditor, 170, 534. release of co-promisor reserving rights against remaining prom- isors, 172. indorser discharged if indorser prior to him is released by the holder, 193. 728 INDEX. (The references are to pages.) RELEASE OF SECURITY HELD BY CREDITOR. discharges promisor pro tanto, 137, 501. promisor discharged whether the lien or security was acquired at the time of the execution of Ihe suretyship contract or later, 138. view that promisor is discharged by release of securities even though other securities remain in hands of creditor sufficient to satisfy the debt, 139. substitution of other securities of equal value or compromise in good faith of disputed collateral will not release promisor, 140. promisor discharged by loss of security resulting from the negli- gence of creditor, 140. the use of ordinary care relieves the creditor from responsibility to the promisor for securities which are stolen, 140. if securities held by creditor are lost by operation of law the promisor will be discharged, 143. release of property of principal in possession of the creditor, but not held as security, not a defense to promisor, 145. release of levy of execution upon property of principal will dis- charge promisor, 138, 144, 501. release of levy of e.xeeution upon property of one of several co- promisors will discharge remaining promisors pro tanto, 172. regular indorser not discharged by relinquishment of securities by the holder, 194. if surety pays without knowledge that creditor has released se- curities he may maintain action to recover back, 502. RENTS AND PROFITS. not covered by appeal bond in foreclosure, in the Federal Courts, 370. covered by appeal bond in action for ejectment, 372. REPLEVIN. purpose of replevin action, 407. Court has no authority to issue writ without bond, 407. conditions of bonds in replevin, 408. bond valid, although not conforming to statutory requirements, 408. the officer serving the writ made the judge of the sufficiency of the bond, 408-. bond can not be enforced if any essential element of contractual relation wanting, 408. bond not enforceable if the court has no jurisdiction of the sub- ject matter, 409. bond invalid if the law under which action is brought has been repealed, 409. no action can be maintained upon bond until the case is finally determined, 410. sureties upon bond concluded by final order in replevin action, 410. final judgment will not be enlarged, by implication, to include findings not actually entered, 410n. sureties bound by judgment, although entered by confession or consent of parties, 411. sureties not permitted to show that the property taken belonged to a stranger, 411. Breach of iond, 409. failure to prosecute without delay, 409. voluntary dismissal of action, 409. dismissal by court for want of jurisdiction, 409. INDEX. > 729 (The references are to pages.) EEPLEVIN— Continwed. dismissal by operation of law or because of the death of party Taot a breach, 409. dismissal for defect of process, 410. dismissal without a finding as to title, for failure of proof, 410. Defenses in action on bond, 413. material alteration of the bond, 413. dismissal of action without consent of the defendant, 413. change in the defendants by substitution of new parties, 414. defenses in mitigation of damages, 414. the increase in value of property during detention by reason of the addition of labor to it, set off in mitigation of damages, 414. no defense that property was destroyed by unavoidable casualty pending final action, 414. subsequent seizure under process of law a- defense, 415. Measure of damages upon iond, 411. defendant entitled to full compensation for his loss, 411. damage to defendant's business by unlawful detention, 411. if damages not assessed in replevin action, may be assessed in action on the bond, 412. costs and expenses including attorney fees as an element of dam- ages, 413. , interest from the date of judgment in replevin, recoverable on the bond, 413. REQUEST TO SUE. failure of creditor to sue principal when requested, not a defense, 173. statutory provisions as to suit by creditor on request of promisor, 175. doctrine of Pain vs. Packard, 176. EES ADJUDICATA. judgment against creditor in action against principal conclusive in favor of promisor, 148. view that judgment against the principal upon official bond is conclusive against the surety, 343. sureties upon bond to discharge attachment are concluded by a judgment against the principal, 401. judgment against plaintiff in replevin dismissing action or find- ing right of property in defendant, conclusive against sureties, 410. surety upon administration bond concluded by judgment against principal, 423. adjudication against a guardian conclusive against his sureties, 429. RES GESTAE. contemporaneous declarations of principal, admissible against surety as part of the res gestae,- 339. RESERVATION OF KEMEDIES. against promisor prevents the discharge of promisor by exten- sion of time to principal, 128. promisor not discharged by release of principal if remedies are reserved against the promisor in the contract of release, 146. release of one of several co-promisors reserving rights against remaining promisors will not discharge those remaining, 172. RESIDENCE OP SURETIES. statutory requirements, 287, 356. 730 INDEX. (The references are to pages.) RESTORATION. • when liability of surety upon mutilated bond may be revived by restoration of the instrument, 255. RESTRAINT OP TRADE. bonds given in restraint of trade are void, 363. RESTRICTIVE INDORSEMENT. does not transfer title, 198. creates relation of principal and agent between indorser and sub- sequent parties, 198. destroys negotiability, 198. view that restrictions upon regular indorsements may be shown by parol, 199. view that restrictions upon regular indorsements can not be shown by parol, 203. RETROSPECTIVE CONTRACTS. guaranty will not be given retrospective effect, 66. bonds not retroactive unless the instrument so stipulates, 244, 299. REVIVAL OP OBLIGATION. if payment or substituted security is void, liability against prom- isor is revived, 135. REVOCATION. executory contract of guaranty when and tew it may be revoked, 94, 184. death of guarantor as a revocation, 95, 184. executed contract of suretyship not revokable, except by mutual assent, 184. RIGHTS AND REMEDIES. subrogation, 462. contribution between co-sureties, 509. the right of indemnity against the principal, 539. promisor who pays the debt of another entitled to enforce all the remedies of the creditor, 471. ROBBERY. liability of sureties of public officers for loss of public funds by theft or robbery, 324. not liable for robbery by a public enemy, 326. S SALARY (See COMPENSATION). SEAL. historical statement as to use of seals, 232n. a bond is a, specialty and required to be under seal, 230. held, signature by surety to bond not essential if instrument is under seal, 232. seal is a symbol of the genuineness of a bond, 232. one seal sufficient for several signers, 233. imports a consideration, 233. modification of effect of seals, by statutes in certain States, 233. where instrument recites that it was sealed by the obligor he is estopped from denying it, 256. if instrument is under seal only those named as parties therein can maintain action upon it, 271. if instrument not under seal any one having beneficial interest can maintain action, 271. official bond without seal is binding as a simple contract, 283. INDEX. 731 (The references are to pages.) SECURITIES (See COLLATERAL SECURITIES). SET-OFF. principal's right of set-off against the creditor as a defense to the surety, 178, 502. insolvency of the creditor as a basis of equitable set-off in favor of promisor, 179, 180. equitable set-off, in favor of promisor, in the right of principal not allowed, except when principal and promisor are both parties to the action, 179. where all parties are before the court the right of equitable set- off accrues to the promisor, 181, 502. SHERIFF AND CONSTABLE. bond of indemnity to sheriff to prevent performajice of duty does not bind surety, 265. bond to sheriff to indemnify against consequences of an unlawful act already committed is valid, 266. default of, in not . paying over money collected in second term upon execution levied in first term, a liability upon the first term sureties, 303. liable for damages to property taken in execution or attachment, 304. trespass, and other wrongs committed colore ofjfiii, 314, 319. levying upon property of a stranger to the writ, 315. selling property exempt from execution, 317. use o3 unnecessary force in making arrest or preventing escape, 317. acting upon void writ, 318. cases holding that sureties aie not liable for wrongs committed colore offwii, 319. liable for acts of deputy, 333. not liable for fraud or tort of deputy, 333. surety paying loss on bond, resulting from misconduct of deputy, subrogated to rights of principal on bond of deputy, 474. acting within the terms of the mandate of the Court, fully pro- tec^d if the Court has jurisdiction, 335. if process does not disclose irregularity, the ofiicer is protected in the service even though he has knowledge of irregularity, 335. SITUATION OF A SURETY (See INVOLUNTARY SURETYSHIP). SIGNATURE. the Statute of Frauds does not require the suretyship contract to be signed by any one except the promisor, 34. if the " memorandum " of the agreement to pay the debt of an- other consists of several papers which refer to each other, the signing of one will satisfy the Statute of Frauds, 35. the requirements of the Statute of Frauds may be satisfied if the the signing is by initials, 36. a printed signature, if affixed by authority, is sufficient compliance with the statute, 36. may be placed anywhere upon the writing required by the Statute of Frauds, 36. the signing of blanks used by the sender of a telegram is a suffi- cient compliance with the Statute of Frauds as to a " mem- orandum " signed by the party to be charged, 36. the term " subscribed," employed in the New York Statute of Frauds, held to mean manual writing and to exclude a printed signature, 36n. surety not bound upon a joint bond unless the principal signs, 23i, 289. 1S2 INDEX. (The references are to pages.) SIGNATURE— CoMfinued. if signature of surety is aflixed without authority a subsequent ratification will bind him, 36, 231. held signature by surety to bond not essential if the instrument is under sealj 232. if name signed to bond is followed by words descriptive of official position it will be binding as the personal obligation of the signer, 232. of principal to ofl&cial bond, not essential to its validity, 288. SPECIALTY. a bond is a specialty, 230. payment by surety of a specialty debt makes of the surety a specialty creditor, 477. SPECIAL AOENCY. doctrine of special agency as applied to promisor who signs upon condition and entrusts delivery to principal, 160, 240. SPECIAL BONDS. sureties upon, not liable for defaults in the line of the general duty of an oflBeer who has given a general bond, 297, 427. SPECIAL GUARANTY. can only be enforced by the one to whom it is addressed, 64. not assignable until right of action arises thereon, 64, 110. SPECIAL INDORSEMENT. without recourse, 195. without words of negotiability does not restrict the subsequent negotiability of the paper, 196. special indorser only liable to such parties as can trace title through his special indorsement, 196. holder may strike out all special indorsements, 196. STATUTE OF FRAUDS. the purpose of, 27. the English statute, 27, 28. text of the English statute relating to suretyship, 28. authorship of- the English statute, 28. the statute in force in some States provides that verbal agree- ments to pay the debt of another are void, 28. the English statute operates only on the remedy and does not ren- der the verbal contract void, 29. meaning and scope of the word "agreement " as used in the statute, 29. view that the entire agreement including a statement of the con- sideration is required by the statute to be in writing, 30. view tliat the statute does not require the " agreement " to be in writing, 30-31. rule in Massachusetts that " agreement " is not used in the statute in a technical sense and should be treated as synonymous with promise, 31. the statute requires merely that a " memorandum or note " be in writing and not the agreement itself, 33. does not require the contract to pay the debt of another to be signed by any one but the promisor, 34. not necessary that the " memorandum or note " should be all upon one paper, 34. if the " memorandum " required by the statute is signed by the initials of the party to be charged it will be sufficient, 36. a printed signature, if affixed by authority, is a sufficient com- pliance with the statute, 36. INDEX. 733 (The references are to pages.) STATUTE OF FRAUDS— Continued. signature upon blanks used by sender of a telegram is a sufficient compliance with the statute as to a " memorandum " signed by the party to be charged, 36. the term " subscribed " employed in the New York Statute of Frauds, held to mean manual writing and to exclude a printed signature, 36n. promise made to the debtor to pay- his debt is not within the statute, 37. contract of indemnity is not within the statute, 37, 518. the doctrine of Thomas vs. Cook as to a verbal promise of in- demnity against liability as surety, 38.